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apparent agency vicarious liability
Roessler v. Novak; a principal may be held liable for the acts of an agent if the principal permits the appearance of authority in the agent. Independent contractor.
res ipsa loquitur
States v. Lourdes Hospital; doctrine of res ipsa loquitor; factfinder; draw an inference of negligence; kind that ordinarily does not occur absent negligence.
economic loss rule
532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc.; adjoining landowners; purely economic losses; construction defects.
Proximate Cause
Doe v. Manheimer; a negligent act is the legal cause of a plaintiff's injury only if the injury would not have occurred without the act, and if the negligent act was a substantial factor in producing the plaintiff's injury.
the firefighter's rule
Levandoski v. Cone; the firefighter's rule does not bar recovery from a tortfeasor who is neither a landowner nor a person in control of the premises; invitee; licensee.
Website Owner Liability For Visitor Posts
Carafano v., Inc.; a website host is not liable for false information posted by a visitor as a publisher or speaker; invasion of privacy; defamation; right of publicity.
Fair Use Parody
Winter v. DC Comics; copyright; the first amendment; appropriation of a likeness; more than merely copying the likenes; right of publicity claim; significant transformative elements; value of work does not derive primarily from celebrity's fame; fair use; parody.
Premises Liability Waiver Agreement
Dalury v. S-K-I Ltd. An exculpatory agreement requiring skiers to release a ski resort operator from liability for injuries sustained on the property is void as contrary to public policy.
Chain Of Causation
Virden v. Betts and Beer Constr. Co.. Defendant's conduct is the proximate cause of a plaintiff's injury only if injury would not have occurred but for the defendant's conduct and was a substantial factor. But-for cause; substantial factor test.
Proximate Cause Only If Foreseeable
Hebert v. Enos. Summary judgment is appropriate if the plaintiff's injuries were not a foreseeable result of the defendant's negligence.
Liability for Tree Damage
Michalson v. Nutting. A landowner is at liberty to use his land, and all of it, to grow trees and is not liable for damage caused by the natural and reasonable extensions of boughs and penetration of roots over and into adjoining property.
Workers' Compensation Specific Intent
Rainer v. Union Carbide Corp. An employer acts with deliberate intention, so the employee's injury is excepted from workers' compensation exclusivity, only when it determines to injure an employee and uses some means appropriate to that end.
National Childhood Vaccine Injury Act
Pafford v. Secretary of Health & Human Servs. Under the National Childhood Vaccine Injury Act, a plaintiff may demonstrate causation only by proving that a vaccine was both a but-for cause and a substantial factor in causing her injury.
National Child
Doe a/k/a Twist v. TCI Cablevision The First Amendment protects the defendant's expressive speech against a plaintiff's right of publicity claim if newsworthy, but not if for profit.
Federal Tort Claims Act
United States v. Olsen. The Federal Tort Claims Act authorizes civil actions against the United States under circumstances in which a private person would be liable under the law of the place where the act or omission occurred.
Driver's Duty to Passengers
Pipher v. Parsell; when the actions of a passenger that interfere with the driver's safe operation of his vehicle are foreseeable, the failure to prevent such conduct may be a breach of the driver's duty to other passengers or the public.
Damage Limits in Maritime Cases
Exxon Shipping Co. v. Baker; In maritime cases, compensatory and punitive damages should be limited to a 1:1 ratio.; malice; remittur.
Stepparent Immunity for Negligent Supervision
Zellmer v. Zellmer; Because a stepparent standing in loco parentis has a common law duty to support and educate a child to the same extent as a biological parent, he or she is also entitled to parental immunity for negligent supervision.
Immunity Statutes and Damages Limits Cannot Deny Meaningful Remedy
Clarke v. Oregon Health Sciences University; The Remedy Clause of the Oregon Constitution provides that, although the legislature may change a remedy or procedure, it cannot deny a remedy entirely.
Family Car Doctrine
Malchose v. Kalfell; The family car doctrine imposes liability on a vehicle owner for negligent operation of that vehicle with the owner's express or implied consent, for purposes of the business or pleasure of the owner's family; negligent entrustment.
The Medical Devise Amendments Prempt State Law
Riegel v. Medtronic, Inc.; The Medical Device Amendments preempt state requirements that are different from, or in addition to, any requirements applicable to a medical device under federal law; preemption.
Juries May Impose Higher Warning Standards than the FDA
Wyeth v. Levine; Where it is not impossible for a drug manufacturer to comply with both state and federal law, common law claims do not stand as an obstacle to the accomplishment of Congress's purposes in the Food, Drug and Cosmetic Act.
Security Guards May Pursue Fleeing Suspects
Peters v. Menard, Inc; A merchant and its agents are immune from liability for actions taken while attempting to detain a person, including off-premises pursuit of that person, if reasonable cause to believe person violated the shoplifting law.
Standard Negligency Jury Instruction
Bjorndal v. Weitman; person negligent if person fails exercise reasonable care measured by what reasonable person acting with ordinary prudence would do under the same or similar circumstances including emergencies.
Violation of Statute May Be Negligence Per Se
O'Guin v. Bingham County; to replace a common law duty of care with a duty of care from a statute or regulation, the statute or regulation must clearly define the required standard of conduct, be intended to prevent the same type of harm.
No Nominal Damages in Negligence Actions
Right v. Breen; when the action sounds in negligence, no purpose would be served by a nominal damages award; exemplary damages.
Proximate Cause in Negligence Action
Hale v. Ostrow; negligence claim requires proof by preponderance of evidence of both causation in fact and proximate causation; both generally involve questions of fact for jury unless uncontroverted facts or all reasonable inferences; but-for-cause.
Superceding Cause of Injury
Delaney v. Reynolds; When an intervening occurrence was foreseeable, the causal chain of events remains intact and the defendant's original negligence remains a proximate cause of the plaintiff's injury; intervening cause; superseding cause.
Schools Have a Duty to Protect Students
Christensen v. Royal School District No. 160; Contributory fault may not be assessed against thirteen-year-old child based on failure to protect from sexual abuse when defendant stands in special relationship to child and has duty to protect child.
Assumption of Risk in Sports
Avila v. Citrus Community College District; Primary assumption of risk arises when as matter of law and policy defendant owes no duty to protect a plaintiff from particular harms; demurrer.
Hospital Liability for Discharging Unstable Patients
Lewellen v. Schneck Medical Center; A hospital must provide appropriate medical screening within emergency department; the patient may not be discharged until he has received stabilizing treatment or has been appropriately transferred.
Sovereign Immunity under FTCA
United States v. Olson; FTCA requires a court to look to state law on the liability of private entities, not public entities, when assessing the government's liability in activities that private persons do not perform; discretionary function.
Discretionary Function Exception to Government Liability
Whisnant v. United States; Because removing an obvious health hazard is a matter of safety rather than policy, the government's alleged failure to do so is not protected under discretionary function exception.
Duty to Aid Strangers
Podias v. Mairs; common law has persistently refused to impose on strangers a moral obligation to aid another human being who is in danger but an exception exists for failure to render assistance when social policy justifies imposition of duty to act.
Remedy for Breach of Contract is not Tort Action
Spengler v. ADT Security Services, Inc; under Michigan law action for an action in tort to arise out of a breach of contract, the act complained of must constitute (1) a breach of duty separate and distinct from the breach of contract, and (2) active negligence.
No Duty to Warn Unless a Special Relationship
Iseberg v. Gross; An affirmative duty to warn or protect against the criminal conduct of a third party may be imposed on one for the benefit of another only if there exists a special relationship between them; agency; agent; principle.
Wrongful Death Action by Adult Children
Weigel v. Lee; Compensable damages in wrongful death actions specifically include both economic and non-economic damages, the latter of which include mental anguish, emotional distress, and loss of consortium damages; survival action.
Liability for Hiring An Incompetent Contractor
Puckrein v. ATI Transport, Inc; to prevail against principal for hiring incompetent contractor plaintiff must show contractor was incompetent, unskilled perform job for which hired, the harm arose due to incompetence and principal knew incompetent.
Design Defect
Merck & Co. v. Garza; Courts should allow a party to present the best available evidence and only then should determine from a totality of the evidence, considering all factors, whether there is legally sufficient evidence to support judgment.
Workers' Compensation Injury Requirements
Wait v. Traveler's Indemnity Co. of Illinois; to recover under Tennessee Workers' Compensation Act, injury must both arise out of and occur in the course of an employee's employment.
Student Acting Under Doctor Authority Does Not Commit Battery
Mullins v. Parkview Hospital, Inc; In order to state a claim for battery, the plaintiff must show that the defendant acted intending to cause a harmful or offensive contact with the plaintiff.
Res Ipsa Loquitur in Med Mal
Sides v. St. Anthony's Medical Center. A plaintiff in a medical malpractice case can use res ipsa loquitur theory where the plaintiff offers a medical expert's opinion that the injury would not have occurred in the absence of negligence by the defendant.
Foreseeability Is A Fact Question
A.W. v. Lancaster County School District 0001. Questions of foreseeability in the context of determining whether an alleged tortfeasor's duty to take reasonable care has been breached must be decided by the finder of fact. Avoid Jury Trial.
Loss of Chance In Medical Malpractice
Matsuyama v. Birnbaum. When a physician's negligence reduces or eliminates the patient's prospects for achieving a more favorable medical outcome, the physician has harmed the patient and is liable for damages. Wrongful Death Action.
Direct Loss In Tort
In re an Arbitration Between Polemis and Another and Furness, Withy & Co., Ltd. If reasonably foreseen that an act may cause harm, tortfeasor is liable for damages, regardless of whether type and extent of damages are reasonably foreseeable.
Contract of Adhesion
Hanks v. Powder Ridge Restaurant Corp. The law disfavors contracts that relieve a person from his own negligence. An agreement violates public policy if it adversely affects the public interest. Liability waiver.
Learned Intermediary Doctrine
State v. Karl. Manufacturers of prescription drugs are subject to the same duty to warn consumers about the risks of their products as other manufacturers.
Lead Paint Case
State of Rhode Island v. Lead Industries Association, Inc. A public nuisance is an unreasonable interference with a right common to the general public by a person or persons with control over the instrumentality alleged to have created the nuisance.
Stealing Electronic Records
Thyroff v. Nationwide Mutual Insurance Co. Electronic records are subject to the common law tort of conversion.
Economic Loss Rule
Affiliated FM Ins. Co. v. LTK Consulting Services, Inc.; The economic loss rule, a doctrine that has attempted to describe the dividing line between the law of torts and the law of contracts, should not be treated as a bright line rule.
Slip and Fall Damages
Averyt v. Wal-Mart Stores, Inc.; Where the jury's damages award is supported by the evidence, a reviewing court will not reverse it.
No Joint and Several Liability
Board of County Commissioners of Teton County v. Bassett; each defendant in a case is liable only to the extent of that defendant's proportion of the total fault in Wyoming.
No Claim for Emotional Distress
Catron v. Lewis; an action for negligent infliction of emotional distress must show either (1) reasonably foreseeably "bystander" victim based on an intimate familial relationship, or (2) a "direct victim" because was within the zone of danger.
Duty Based on Public Policy
Diaz v. Phoenix Lubrication Service, Inc.; an actor whose conduct has not created a risk of physical harm to another has no duty of care to the other unless there is some other affirmative basis for the existence of a duty.
New Damages Trial
Dillon v. Frazer; new damages trial if verdict is so grossly inadequate or excessive as to shock the conscience and clearly indicates passion, caprice, prejudice, partiality, corruption, or some other improper motive.
Doomes v. Best Transit Corp.; the National Traffic and Motor Vehicle Safety Act includes a savings clause stating that compliance with a motor vehicle safety standard does not exempt liability at common law. Premeption Doctrine.
Abnormally Dangerous Activity
Dyer v. Maine Drilling & Blasting, Inc.; an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another from the activity, even if has exercised the utmost care to prevent the harm. Strict Liability.
No Duty to Assist
Estate of Cilley v. Lane; Maine law does not impose a general obligation to protect others from harm not created by the actor.
Shopkeeper's Privilege
Gortarez v. Smitty's Super Valu, Inc.; A merchant with reasonable cause may detain in a reasonable manner and for a reasonable time any person suspected of shoplifting for questioning or summoning a law enforcement officer.
Market Share Liability Theory
Hymowitz v. Eli Lilly & Co.; Under the market share liability theory, liability will be apportioned to each defendant according to its share of the market for the product giving rise to the plaintiff's injuries.
Open and Obvious Doctrine
Kentucky River Medical Center v. McIntosh; a possessor of land is not liable to invitees for physical harm caused by an activity or condition whose danger is known or obvious, unless should have anticipated despite knowledge or obviousness.
Substantial Factor Test for Causation
Lasley v. Combined Transport, Inc.; factual cause exists if someone examining the event without regard to legal consequences would conclude that the allegedly faulty conduct or condition in fact played a role in its occurrence.
Discovery Rule
Lincoln Electric Co. v. McLemore; A plaintiff's cause of action accrues at the point at which he discovered, or by reasonable diligence should have discovered, the injury. Statute of limitations.
Intervening Acts
Marcus v. Staubs; a tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor.
Computing Punitive Damages
Mathias v. Accor Economy Lodging, Inc.; there are no definitive rules establishing a precise methodology for computing punitive damages.
Vicarious Liability
Mavrikidis v. Petullo; when a person engages a contractor, who conducts an independent business by means of his own employees, he is not liable for the negligent acts of the contractor.
Loss of Chance Doctrine
Mohr v. Grantham; treating the loss of chance as a cognizable injury permits plaintiffs to recover for the loss of an opportunity for a better outcome. But for causation. Substantial Factor Test.
Parental Immunity Doctrine
Neel v. Sewell; claims of negligent supervision are properly viewed as involving the exercise of reasonable parental authority over a child, and are thus barred by parental immunity.
Intervening Cause
Pohl v. County of Furnas; an intervening cause cuts off a tortfeasor's liability only when it is not foreseeable; tthe new and independent conduct of a third person is itself the proximate cause of the injury and breaks the causal connection.
Sudden Emergency Doctrine
Posas v. Horton; The fact that the actor is not negligent after the emergency arises does not preclude his liability for tortious conduct that produced the emergency.
Feres Doctrine
Purcell v. United States; under the Feres doctrine, the government is not liable under the FTCA for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.
Qualified Immunity
Sama v. Hannigan; Qualified immunity shields government officials performing discretionary functions (medical care here), from liability for civil damages if conduct does not violate clearly established statutory or constitutional rights.
Risk Standard
Thompson v. Kaczinski; a actor's liability is limited to those physical harms that result from the risks that made the actor's conduct tortious. The scope of liability issue is fact intensive as to foreseeability.
Self Defense for Physical Harm Only
Touchet v. Hampton; mere words, even though designed to excite or irritate, cannot excuse a battery. The privilege of self-defense is based on the prevention of harm to the actor, not on the desire for retaliation or revenge.
Child Liability in Tort
Van Camp v. McAfoos; A child cannot be held liable in tort without some allegation of negligence or wrongful conduct on his or her part.
Implied Preemption
Vreeland v. Ferrer; if federal law does not expressly preempt state law, preemption may be inferred only if scheme of federal regulation is sufficiently comprehensive to reasonably infer Congress left no room for supplementary state regulation.
Landlord Duty to Tenants
Ward v. Inishmaan Assocs. Ltd. Partnership; Generally speaking, landlords have no duty to protect tenants from criminal attack by third parties.
Online Defamation
Blumenthal v. Drudge; Under the Communications Decency Act, no provider or user of interactive computer service treated as publisher or speaker of information provided by another content provider for tort liability. ISP. Internet Service Provider.
Market Share Liability Rule
Sindell v. Abbott Laboratories; when the precise defendant cannot be identified through no fault of the plaintiff, liability may be apportioned based on the share of the market held by each negligent manufacturer. Summers v. Tice.
Online Writings are Defamatory
Varian Medical Systems, Inc. v. Delfino; written defamatory communications published by means of the Internet are properly characterized as libel, not slander. No prior restraint.