Gross Negligence
Reckless disregard or careless indifference, which may involve a substantial deviation from expected/defined standard of care. Does not require intent
When does prescription commence for a continuing tort?
When the last act occurs or the conduct abates
What does a Survival Action permit recovery for?
Only damages actually suffered by the deceased from time of injury to moment of death; pain and suffering, loss of earning, and any other damages sustained before death
In a Survival Action, when should an award for pre-death pain & suffering be denied?
When there is no indication that a decedent consciously suffered
When does a Survival Action come into existence?
Simultaneously with the tort and is transmitted to beneficiaries upon victim's death
When a Survival Action is dependent on a viable MedMal action, how is the prescriptive period affected?
Still must be filed 1 year from victim's death, but must be within 3 years from the malpractice
What is the Balance Test for determining if a duty exists for purposes of negligence?
Balance the foreseeability/gravity of the harm with the burden of imposing a duty to protect against criminal acts of third persons
What does foreseeability include?
Existence, frequency, and similarity of prior instances of crime on the premises, also location, nature, and condition of property
Under the Duty-Risk Analysis, what 5 elements must a plaintiff prove?
1. Duty - D had duty to conform conduct to specific standard of care
2. Breach - D failed to conform conduct
3. Cause-in-fact - D's substandard conduct caused injury
4. Scope - D's substandard conduct was legal cause of injury
5. Damages
Negligence and strict liability require 4 things:
1. D had custody of the thing that caused injury
2. Thing had a defect creating an unreasonable risk of harm
3. Defective condition caused P's injury
4. D knew/should have known of the defect
When does Constructive Notice exist?
Condition which caused injury existed for such a period of time that those responsible, by exercise of reasonable care and diligence, must have known their existence and could have guarded public
Three approaches to determining amount of damages:
1. Cost of restoration if the item can be adequately prepared;
2. Difference in value prior to and after damage; or
3. Cost of replacement, less reasonable depreciation if value before and after damage cannot be reasonably determined
When is strict liability legally imposed upon a parent for their child's act?
1. Child resides with parent
2. If child's act would be a tort for an adult
*Determined without consideration of whether parent could have prevented act of child
How can a parent escape strict liability for their child's act?
Prove that harm was caused by the fault of victim, third person, or a fortuitous event
To establish a claim in strict liability for injury caused by dog, plaintiff must prove:
1. Dog actually caused the damage to P's person/property
2. Dog posed an unreasonable risk of harm and owner could have prevented damage
3. Injury was not caused by P's provocation
When is the Doctrine of Res Ipsa Loquitur appropriate?
Applies when there is no direct evidence concerning cause of injury; rule of circumstantial evidence, which is appropriate for situations involving accidents that normally do not occur absent negligence
Three factors that a plaintiff must satisfy to apply Res Ipsa:
1. Must present evidence which indicates at least a probability that injury would not have occurred w/o negligence
2. Should sufficiently exclude inference of P's own responsibility or that of others besides D in causing accident
3. Negligence falls w/in
Under Principle of Comparative Causation, when determining percentages of fault what shall the trier of fact consider?
Both the nature of the conduct of each party at fault and the extent of the causal relation between the conduct and the damages claim
Pure Comparative Fault Doctine
The fault of all persons causing or contributing to injury is to be compared, whether or not each person is a party and regardless of the legal theory of liability asserted against each person
What happens when P suffers injury partly because of his own negligence and party as a result of an intentional tortfeasor?
P's claim for recovery of damages should not be reduced by comparative fault - intentional tortfeasor should not benefit from reduction in damages conflicted on a less culpable negligent actor
Watson factors for comparative fault:
1. Whether conduct resulted from inadvertence or involved an awareness of the danger
2. How great a risk was created by conduct
3. Significance of what was sought by the conduct
4. Capacities of the actor, whether superior or inferior
5. Any extenuating c
What do courts require in an action for nuisance?
Strict proof that activity carried on is of sufficient intensity, annoyance, and inconvenience that he who causes it has created a nuisance which must be abated
Nuisance by Law or Per Se
An act, occupation, or structure, which is a nuisance at all times and under any circumstances, regardless of location or surroundings
How is a right to relief established for a Nuisance by Law?
Allegations and proof of the mere fact
Nuisance in Fact
Nuisance by reason of circumstances or surrounds; depends on its location and surroundings, manner of conduct, or other circumstances
What is necessary for relief from Nuisance in Fact?
Proof of the act and its consequences
What is the remedy for a nuisance?
Injunction - must be a threat of irreparable harm
The determination of nuisance is based upon balancing test of:
1. Nature of intrusion into neighbor's property
2. Degree of damage
3. Effect of activity on health & safety of neighbors
4. Character of the neighborhood