Torts II – Conte – Fall 2010
Exam: 12 -15 MCQ’s 4 essay questions.
Will be like hypothetical fact situation:
Couple of parts:
I. What claim or claims is X likely to assert against Y? X is likely to assert that Y is liable for damages in _(insert tort). This is due to the (insert facts). DON’T INSERT PRINICPLES. FOCUS ON THE MAIN CLAIM.
II. What legal principles would be applicable to the claim or claims asserted by X against Y? ex: If manufacturing defect: in order to recover in strict liability for a manufacturing defect under restatement 2nd 402(a) the plaintiff must demonstrate that the product containing the defect was sold by Y to X in a defective condition unreasonably dangerous to the user and consumer prox. causing X’s injuries. Even if D used all possible reasonable care in manufacturing the product. A defective condition is unreasonably dangerous if it is… as to the characteristics of the product. SET OUT THE ELEMENTS OF ALL THE PRINCIPLES.
III. What defenses or contentions is it likely that the defendant will assert in response to plaintiff’s claim or claims, and the legal principles applicable to those defenses? Asking for a combination of the first two questions. Ex: comparative fault, assumption of the risk, defendant’s actions did not cause the harm
IV. Applying the facts (and circumstances) to the applicable legal principles set forth a balanced view of the legal reasoning in the case as a memorandum to the senior partner (or set forth a court’s likely reasoning of the case)? DON’T JUST CONCLUDE! ENGAGE IN LEGAL REASONING.
Second part may relate to the relief:
i. Considering the facts and reasoning stated above what kind of relief would P seek?
ii. What legal principles would be applicable in the relief in this case?
iii. What defenses or contentions are likely to be made by D
iv. Applying the legal principles to the facts with respect to the claim and defenses what is the likely relief the court will grant including the reasoning?
In terms of remedies you have the particular types of damages: contemporary damages, punitive (economic, non-economic). But keep in mind the other forms joint and several liability, the allocation among defendants, comparative negligence etc.
Preparation: review the cases and briefs, outline, and integrate review into outline. Read the cases, use the facts. Maybe create hypos, or use hypos and do the problems. Areas not to cover: Federal sovereign immunity act,
Areas to study:
· Duty to rescue
· Economic loss (peoples express)
· Duties of owners and occupiers
· Affirmative defenses,
· Comparative fault
· Failure to warn
· Products liability,
· Duty to rescue
o Yania v. Bigan – D has not placed a P in a perilous position the D has no duty to prevent harm or peril to the P.
§ But if D undertakes to help a P but the D does not take reasonable care that may be a breach of care.
o Situations also arise where D may non-negligently create a perilous position (the truck stalled at the bottom of the hill) although the D was not negligent but because he created a perilous situation he must exercise a duty of care when he created the situation.
o Doesn’t matter how skilled a D is (an Olympic swimmer a dr.) has no duty to act
o Exception §327: any person who knows or has reason to know that a third person is ready to give aid is liable if he negligently prevents or disables that person to give aid
o Other exception under the Cl and §3149(a0:
§ Common carrier – render fi
to whom D knows or has reason to know are likely to suffer from such conduct.
o INDENTIFIABLE =FORESEEABLE
· Emotional distress
o Early days there was no recovery unless it was accompanied by a physical impact which was no modified and no became the zone of danger rule
o Reasons against are because of the requirement of some physical contact (as opposed to the slippery slope argument of never-ending litigation)
o Measured by normal person
o Natural result of the fright proximately caused by D’s conduct
o UNLESS there is knowledge of hypersensitivity
o Zone of danger rule:
§ Is in danger of physical impact
§ Reasonably fears for her own safety
§ Suffers serious emotional distress because of that fear
o Zone of danger rule was ameliorated under the Dillon v. legg approach which puts into effect if the danger would be reasonably foreseeable
§ Near the accident
§ Shock or fear resulting from contemporaneous viewing of the accident
§ Whether the P was related to the victim (argued in court)
o Rule: In the absence of physical injury or impact to the plaintiff himself, damages for emotional distress should be recoverable only if the plaintiff:
§ 1. is related by blood and marriage to the victim;
§ 2. Is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim (contemporaneous); and
§ 3. as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness