期中重點

DEFENSE IN NEGLIGENCE ACTIONS

I. Contributory negligence

1. General rule: the doctrine of contributory negligence provides that p is negligent, and his negligence contributes proximately to his injuries, is totally barred from recovery.


2. Standard of care; p is held to the same standard of care as d ---the care of a reasonable person under like circumstance. 


3. Proximate cause: the contributory negligence defense only applies where p’s negligence contributes proximately to his injuries. The same test for “proximate cause “is used where d’s liability is being evaluated. 


II. Comparative negligence 


A. Definition: a comparative negligence system rejects the “all or nothing” approach contributory negligence. Instead, it attempts to divide liability between p and d in proportion to their relative degree of fault. P is not barred from recovery by his contributory negligence, but his recovery is reduced by a proportion equal to the ratio between his own negligence and the total negligence contributing to the accident.


B. Pure comparative rule 


C. Modified comparative negligence rule


III. Assumption of risk


A. Definition: p is said to have assumed the risk of certain harm if he has voluntarily consented to take his chances that harm will occur. Where such an assumption is shown, p is completely barred from recovery.


B. Express assumption: if p explicitly agrees with d, in advance of any harm, that p will not hold d liable for certain harm, p is said to have expressly assumed the risk of that harm.


C. Implied assumption of risk: even if P never makes an actual agreement with D whereby P assumes the risk, P may be held to have assumed certain risks by his conduct. This assumption of risk is said to be implied.


1. Two requirements: for D to establish p’s implied assumption of risk, he must show that p’s actions demonstrated that he knew of the risk in question and voluntarily consented to bear that risk himself.


2. Knowledge of risk: the risk must be one which was actually known to p


3. Voluntary assumption: there is no assumption of risk if d’s conduct left p with no reasonable choice but to encounter a known danger.


Vicarious liability


I. Employer-Employee relationship


A. Respondeat superior doctrine: if an employee commits a tort during the “scope of his employment” his employer will be liable (jointly with the employee). This is the rule of ”respondeat superior”.


1. applies to all torts: the doctrine applies to all torts, including intentional torts and those in which strict liability exists, provided that the tort occurred during the scope of the employee’s employment.


B. Who is an “employee”: respondeat superior is applied to all cases involving “employees” but not to cases involving “independent contractors”.


1. Distinction: an employee is one who works subject to the close control of the person who has hired him. By contrast , an independent contractor, although hired to produce a certain result, is not subject to the close control of the person doing the hiring. The “control “required to make a person an employee rather than an independent contractor is usually held to be control over the physical details of the work, not just the general manner in which the work is turned out.


C. Scope of employment: respondeat superior applies if the employee was acting within the scope of his employment if the tort occurred. The tort is within the scope of employment if the tortfeasor was acting with an intent to further his employer’s business purpose, even if the mans he chose were indirect, unwise or even forbidden.


1. trips from home: most court hold that where an accident occurs where the employee is traveling from his home to work, he is not acting within the scope of employment. 


2. frolic and detour: even a detour or side-trip for person purposes by an employee may be found within the scope of employment if the deviation was reasonably foreseeable.


3.forbidden acts: even if the act done was expressly forbidden by the employer, it will be within the scope of employment if done in furtherance of the employment.


4. intentional torts: the employee’s intentional tort does not relieve the employer of liability if the intentional tort is committed within the scope of employment.


5. Personal motives: but if the employee merely acts from personal motivates,the employer will generally not liable.


II. Independent contractor

D. Employer not general liability: one who hires an independent contractor is not generally liable for torts committed by the independent contractor


E. Exception: there are some important exceptions to the rule that an employer is generally not liable for torts committed by the independent contractor.


1. Employer’s own liability: if the employer is himself negligent in his own dealings with the independent contractor, this can give rise to employer liability. 


2. Non-delegable duty : there are some duties of care that are deemed so important that the person doing theme will not be allowed to delegate theme to anyone.


3. Inherently dangerous activities: one who employs an independent contractor will also be liable where the work is such that there will be a high degree of danger to others unless special precautions are taken.

 


Damage


I. In general
a. essential element of liability 
with only a few exceptions, damage is an essential element of all tort claims.


II. Types of damages


A. Nominal damages
Nominal damages consist of a token sum of money which is awarded to a plaintiff who has made out a case but has failed to prove any actual damage.


B. Punitive damages
Punitive damages may be awarded to the plaintiff to punish or to make an example of the defendant, because the defendant’s conduct was reprehensible or base.


1. Intentional tort 
2. Aggravated negligence
3. strict liability


C. Compensatory damages
1. General and special damages
2. Functions of court and jury 
a. Remittitur


3. Avoidable consequences ---plaintiff’s duty to mitigate damages 
A defendant who is liable for the plaintiff’s damage is not liable for complications or consequences which the plaintiff could have avoided by acting reasonably after the injury occurred.


4. Collateral sources 
  The majority of jurisdictions hold that compensation which a plaintiff receives from a collateral source (i.e, not on behalf of a tortfeasor) is not relevant in measuring damages which the plaintiff is entitled to collect from the defendant.


5. Taking plaintiff as found 
It has been said that a defendant takes the plaintiff as he finds her. This means that a defendant is liable for the full extent of the injuries proximately caused by his conduct even though their severity may have resulted, in part, from an unusual pre-existing condition of the plaintiff.


6. property damage


7.commercial losses

Mickey 發表在 痞客邦 PIXNET 留言(0) 人氣()