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Unit 4 Seminar

Unit 4 Seminar. December 1, 2010 Torts. Class Update. Unit 5: Mid-Term Research Assignment 2 3 – 5 pages Application Facts Cases What are your Torts Sources Case Law Statutes. Negligence. Four Elements Duty Breach of Duty Causation Actual Proximate Damages.

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Unit 4 Seminar

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  1. Unit 4 Seminar December 1, 2010 Torts

  2. Class Update • Unit 5: Mid-Term • Research Assignment 2 • 3 – 5 pages • Application • Facts • Cases • What are your Torts • Sources • Case Law • Statutes

  3. Negligence • Four Elements • Duty • Breach of Duty • Causation • Actual • Proximate • Damages

  4. Contributory Negligence • P gets nothing if negligent at all • Four states (change since 1968) • Used to be main rule • Problem: Worthy plaintiffs are often denied recovery and blameworthy D’s get away • 1% negligent?

  5. Comparative Negligence • Alternative to all-or-nothing approach of contributory negligence • Reduces by percent • Types • Pure • 50% • Not as great as • Not greater than

  6. Other Defenses • Assumption of Risk • P who volunteers to take the chance that harm will occur • Last Clear Chance • Limits Contributory Negligence • D has an opportunity that is not available to P to prevent harm and does nothing then still liable

  7. Immunities • Complete 100% Defense • Government • Spouse • Parent-Child • Charity

  8. Malpractice • Duty of Care • Negligence does not equal unfavorable outcome • Key = Reasonable • Reasonableness • Skill and learning commonly possessed by members in good standing • IN COMMUNITY

  9. Malpractice • Must use diligence and care • Professional negligence must be proximate cause • Specialists • Higher standard of care • National Standard

  10. Malpractice • Informed Consent • Would reasonable person have submitted to procedure if they knew risks involved • Dr. has duty to warn patients of possible issues with treatment • Must state Alternative treatments • Actions • Battery • Negligence

  11. Misrepresentation • Additional Tort • Negligent or Intentional • Elements pg. 260 • Seller of car who turns back odometer • Buyer Beware • Failure to Disclose • Deliberate Concealment

  12. Misrepresentation • Defendant State of Mind • D must know of the falsity of statement or acted with reckless disregard to the truth • Reliance on Misrepresentation • Independent investigation • Justifiable • Puffery • Proximate Cause

  13. Negligent Misrepresentation • Now permitted • Same Elements as Intentional • Except for Intent • Liability • Negligent • Intentional • Innocent Misrepresentation

  14. Nuisance • Additional Tort • Pg. 275 • D’s interference with P’s interest • Private • Enviornmental • Public • Unreasonable interference with P’s use and enjoyment of land

  15. Nuisance • Unreasonable: • P’s harm outweighs D’s utility • Harm caused is substantial • Trespass: Interference with P’s right to possession of property • Nuisance: Interference with right to enjoy property • Do not need to physically enter property

  16. Interference with Business • Interference with existing contractual relations • Lumley v. Gye • Merely offering better price not enough • Interference with prospective contractual relations

  17. Review • Examples • Questions

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