Torts II – Nuckolls – Winter 2016
Negligence Defenses:
Statute of limitations
A prescribed time period within which a claim or counterclaim must be brought
Accrual rule: clock starts ticking when injury occurs
Tolling: pausing the statute of limitations (clock not running against you)
E.g.: when a plaintiff files a lawsuit, it may run for months or years without worry that the statute of limitations will run out.
Involved in negotiations
In the military
Discovery rule (exception to the statute of limitations)
the plaintiff discovers or as reasonable person should have discovered
That he or she is injured AND
That the defendant or defendant’s product or instrumentality had a casual role in the injury to require further investigation that in turn would have revealed the defendants conduct
If reasonable minds can differ then the question may be left to the jury
Usually used in medical malpractice cases
Teeters case: reasonable person should have discovered that tubal ligation didn’t work
Statute of repose:
Provides a counter rule to the accrual/discovery rule by adding an alternate prescription period which begins running at the time of the defendant’s act rather than at the time harm was inflicted or discovered
Statute of repose v statute of limitations:
Repose has the clock begin ticking at the time of the defendant’s act, it can only be applied to limited cases such as product liability, builders, and architects
Product of tort reform so can’t be used for everything (usually product liability)
When one is expired then the case is dead
E.g.: statute of repose expired then no suit is possible
Immunity:
Spousal immunity: NO
A husband or wife is not immune from tort liability to the other solely by reason of that relationship
In some places still have immunity
Parent child immunity: YES (only applies when the kid is a minor)
Cant be a child suing and can’t be an adult suing for what happened as a kid
Reciprocal rule (protects both sides from litigation)
Applies to both parents and children
Parent can’t sue minor child unless emancipated
Siblings and other kin are not immune from tort liability to one another merely by reason of that relationship
Exceptions:
Emancipated child
Harm inflicted on the child by the parent
Charitable immunity: NO
One engaged in a charitable, educational, religious, or benevolent enterprise or activity is not for that reason immune from tort liability
In the past charitable organizations were viewed as do gooders but now are run more like businesses so they don’t require immunity.
Implied waiver theory:
Accepts benefits of a charity = waive right to sue
Cant be applied to all who accept because anyone can be in need
Minors
Mentally ill
Accepting out of desperation may cloud judgment
Trust fund theory:
Don’t want money that is being donated to be used to pay for lawsuits
Issue with this theory is that it ties right to satisfaction with right to bring a claim when they are not related
Governmental immunity:
Federal: (federal torts claim act)
Except to the extent that the U.S consent to both suit and to tort liability (can only sue if they say you can)
Cant get punitive damages, but can get compensatory damages to make whole again
Statutory provisions give the requisite consent to suit and liability for many types of tortious conduct
A duty must be created to bring suit
Court order, promises, in police custody, etc.
Government employees are immune if they were acting within the scope of employment
Don’t have right to a trial by jury only by judge if take government to trial
Government reserves the right to immunity regarding discretionary function
Local:
In most places there is no longer any type of governmental immunity, where there is one can have it waived claiming that the entity is running more like a business
Public duty doctrine: governmental agencies have a duty to the public at large but not to one specific person
Determine if there was a duty:
Misfeasance: had a duty and chose not to act
When you open a dialogue and say your going to do something, you are now obligated and have created a duty
Promise, court order, special relationship, detrimental reliance, police info
fluctuating values:
Time of loss theory: we use market value at the time and place of the loss
Rule of highest intermediate value: allows damages based on the highest value the goods have reached during period from the time of loss to the time of trial or date plaintiff filed suit.
Highest replacement value (NY rule): allows damages based on the highest value the goods have reached between the time plaintiff discovers the harm and the time he reasonably could’ve replaced it on the market
Punitive: to punish and deter (the goal is not to restore or make you whole again) (basic negligence doesn’t give rise to punitive damages)
If you can establish malice, then punitive damages can be awarded
Actual malice
Recklessness
Willful and wanton misconduct
Factors looked at when deciding If punitive damages should be awarded (corporations since they usually don’t have malice)
How great was the danger that D exposed the public to?
Cost or feasibility of reducing the danger
Manufacturers awareness of the danger
Nature and duration of and reasons for manufacturers failure to act appropriately to discover or reduce the danger
Extent to which manufacturers purposefully created the danger
If followed federal safety regulation not going to be subject to punitive damages
Probability that damages might be awarded against the defendant in other cases
Amount of time that has passed since the actions occurred
State farm v Campbell (after they were awarded were they excessive to where due process of defendant was violated?)
Reprehensibility: Only the reprehensible conduct that is closely related to the plaintiff’s particular harm
Isolated or repeated
Was the cause physical or economic?
