Top 4 Supplements for 1L Torts:
We need to consider two factors in Tort Liability
Economic loss has two categories
- No physical harm to anyone or anyones property
- physical harm to someone or someones property
No Physical Harm ::
AccountantAccounting firm uses a balance sheet for the wrong corporation, client bases a decision on the faulty info, makes a contract with the business, then suffers damages.
Some courts say a cause of action can not be brought against a third party because the accountant and the person dont have a K (no privity)
Courts are aware that when there is something that a know party will intend to rely on and the accountant is aware of that. The accountant knows that the person will rely on the balance sheet he gives them
Standard of Care
Issue of Liability to third parties
Duty is to the client in suits for a third party in non-judgemental cases
When the lawyer misses the filing deadline and now the client cant sue.
Client will need to prove that they probably would have won if the lawyer had filed on time
Courts are not likely to second guess lawyers in judgemental cases
Lawyers are held to the ordinary skill and capacity of a lawyer
Some courts still require PRIVITY and the third party cannont sue
Lawyer negligently drafted a will, the guy died, the kids sued, lawyer said there was no privity
Yes there is because the purpose of the will was to benefit the third party
Physical Harm ::
Cases where the accident causes or threatens physical harm to someone or property
Train derails spewing poison gasses, area evacuated. can Costco sue?
You cannot recover for economic loss unless it causes physical harm to the plaintiff
Some states have a more expansive view, and go by “particular (really really) foreseeable”
Interfamily Immunity – Cant sue your family members Abolished (California abolished so have most other states)
father punches daughter, courts used to say no action
Automobile accidents, friend and dauther in car, friend can sue dauter cant
Discipline Immunity – Was the spanking too hard? some states have kept this immunity
Governmental Immunity – You cant sue the King cause hes immune!
Most states have abolished it and replaced it with detailed codes
Federal Tort Claims Acts
State Court Tort Acts
Discretionary – (Are immune) basic policy decisions of governmental unit (how many cops in each section of town, rubber bullets v tear gas
Ministerial – Non discretionary not involved in making policy
Contributory Negligence – Unreasonable conduct of a person torwards their own safety is contributorily negligent
- Some sates do not allow you to recover at all if you are contributorily negligent
- Last clear chance exception, will allow full recovery if the plaintiff tries to act responsibly at the “last chance”
- Major problem, how would jurys decide this? 1975 court has revelation, we will just lock them in a room and make them decide.
If the defendant is negligent and the plaintiff is only a little negligent why should she bear the full cost of the accident
California 1975 supreme court adopted “Pure Comparative Negligence”
Unless the Plaintiff is 51% AT FAULT in that case they will bear the full cost
Some courts use “Comparative Negligence” – Plaintiff can recover even if they are 99% at fault, the recovery will just be reduced by 99% and P will recover 1%
Delury v S-K-I Ltd
- Skier signed a no liability K
- No liability on lift pass
- Skier hit a pole and injured
- Skier sues, says the no liability is ambiguous
- Some courts require a no-liability clasue to specificly say “we are released from negligence”
- Court finds that the K was not ambiguous
- P then says the clause goes against public policy
How would vermont court deal with the ski lift tower?
468 we are not always going to enforce these things check out the framework!
greements are invalid if they exhibit some or all of these characteristics is the business suitible for public regulation? (hospital yes
Tunkl Factors –>
- Engages in a service of great importance to the public
- The business will perfom its service on any member of the public
- the business uses the importance of its service as an unfair bargaining chip
- before performing the essential service the business provides an essential contract that you must sign, and will not allow you to pay a fee to be protected from negligence
- As a result of the transaction the user is placed in the care of the business and subject to the rick of the businesses negligence.
Court is split about these releases, Does the Tort law have SUPREMACY over contract law???