Torts II Course Outline
Spring 2011 Professor (Dean) Nelson Miller
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I. NEGLIGENCE DEFENSES
a. Contributory or Comparative Negligence
i. Contributory- if the plaintiff is at all negligent, defendant not liable, no matter how much they contributed to the injury/damage (Only accepted in four states as a defense- mostly abolished)
ii. Comparative- even if plaintiff was negligent, so long as they are 50% or less than the defendant, they can recover. This defense seems to be more fair, since it tends to subtract the % of the plaintiffs negligence from the defendants liablity
b. Assumption of Risk- if plaintiff voluntarily encountered and accepted the hazards of a known risk, they have no right to complain about the injury it caused (express- contractual in nature and implied)
Torts I_________________________________________________________________________
Torts II
c. Statutes of Limitations- places time limits on how long a plaintiff has to file a complaint. These time limits vary from jurisdiction to jurisdiction, and case by case. This is a complete bar to a suit.
-period depends on nature of the claim
-period starts when the claim accrues (Claims accrual)
– all elements must be present in order to go forward
i. when there is a continuing re-injury from continuing misconduct (negligence) by the defendant (example: abuse of a child) it is treated as the continuing tort rule – all acts are a single tort, and the date of the last incident is the beginning of accrual date (the date the clock starts ticking)
ii. Discovery Rule- (Teeters V Curry) claim will not accrue (statute of limitations period will not begin) until π knows or should have known of injury caused by defendant’s negligence (conduct)
iii. Tolling- exists in certain circumstances, and means that the limitations period does not begin as long as certain conditions exist
1. Plaintiff files a claim- court procedure can take months/years, but once suit is filed as long as it is filed within the St of L, it can continue.
2. Plaintiff unable to identify and name defendants
3. Infancy of Plaintiff (varies from jurisdiction to jurisdiction)
4. Insanity
5. Defendant’s Fraudulent Concealment of claims
6. Soldier’s and Sailor’s Relief Act
7. Imprisonment
iv. Failure to Mitigate- unreasonable refusal to get better (or to engage in conduct which would have reduced plaintiff’s damages
v. Notice of Claim Statutes- some states require that the plaintiff give the defendant notice that they are filing suit within a certain timeframe. In these states, failure to give notice can bar a claim
d. Statutes of Repose- bars claims after a certain period after a person made a good or service (or sometimes after a defect is discovered)
1. Usually construction and drug cases
2. **Cuts off a claim accrual, and is dependent upon when the defendant last acted (not when the injury arose)usually around 8-10 years
3. Substantive (rather than procedural)
e. Immunities
i. Intra-family
1. Inter-spousal- 33 states (majority)have abolished this type of immunity, the others have created exceptions.
a. exceptions to inter-spousal tort immunity (makes the spouse that did the injury, damage not immune from liability):
-pre-marriage torts;
-intentional torts;
-motor vehicle accidents;
-post-marriage suits; and
-death of one party to the marriage.
2.
nance of defective sidewalks, highways and buildings
c. Governmental Immunity can be waived for propriety function- one that a private entity can perform not uniquely for the benefit of the general public (rather than governmental functions- services that only the government does)
***Example of Propriety Functions: things that have not been historically been performed by the government like running hospitals, utilities, airports
d. And, for ministerial- actions mandated by law or regulation (if you don’t do it the way you were supposed to, you should be liable) rather than discretionary actions- discretionary exception is meant to shield the government from liability for actions that require judgment according to public policy
3. Local Government- almost every state limits its own immunity. (Local level=less immune than state government= less immune than federal government
4. Government Officials- Public officials normally have tort immunity, even when their employers can be sued
***EXAMPLES: Legislatures, and Judges usually receive complete immunity as long as the act is w/in broad scope of their duties
iv. Employer- (Vicarious Liability)spelled out in statutory schemes, places limits on when and how much an employer and an employee may be liable
1. Worker’s Compensation laws limit amount employee can recover. Which means, employees cannot sue employers (or fellow employees) for negligence.
