Pa tort distinctions

  1. Battery
    Under PA law, a Dr who performs surgery w/out informed consent is liable for battery

    *Informed consent= all risks a R person would consider important in making decision
  2. False Imprisonment - "Shopkeeprs' Privilege"
    Under Pa law, the shopkeeper must have PC, not merely RS (would be a question of the court)
  3. Defenses to Intentional Torts: Consent
    Under Pa law, where parties engage in mutual combat, recovery by P is limited to actual damages

    *Additionally, Pa allows for the consent defense where the V is not a member of a protected class
  4. Defenses to Intentional Torts: Self Defense
    Under Pa law, there is no duty to retreat:

    1) In one's own home, or

    2) Place of employment and the assailant is not a co-worker
  5. Defenses to Intentional Torts: "Reasonable Mistake Doctrine" (Defense of others)
    Pa uses the reasonable mistake doctrine, allowing the use of force to defend another if the actor reasonably believes that the person in need of aid would be permitted to use self-defense
  6. Recovery of Wrongfully disposessed Land
    Pa law follows the majority rule and allows for an action in enjectment to recover wrongfully dispossesed land
  7. Defamation
    Pa, also requires a showing of fault for a claim of defamation (D published it)
  8. Slander per se
    Pa recognizes the 4 tradional types of slander per se

    • *Additional categories:
    • 1) Charges of communism
    • 2) Statements that involve business failure, insolvency, financial embarrasment or bad credit

    *Pa expands the unchasity category to an allegation of serious sexual misconduct
  9. Injurious Falsehood: Defenses
    Under Pa law, in cases involving public figures or matters of public concern, the D has the burden of proving a truth defense

    Consent and Privilege are also defense
  10. Proof of Malice
    Pa allows evidence of a subsequent publishing after a complaint of alleged defamation has been filed
  11. Defamation: Standard of Review
    Under Pa law, the D must show at least negligence on the part of the D whether it is a public or private matter
  12. Libel per quod
    Lible per quod means that it is not apparent on the face of the communication that it is defamatory.

    *In Pa, libel per quod doesn't require proof of special damages.(loss earning etc...)
  13. Wrongful institution of Civil Proceedings: "Dragonetti Statute"
    • Makes both the lawyer and P liable for pursuing wrongful civil proceedings if:
    • 1) Proceedings raising the COA were decided in P's favor
    • 2) D initiated the proceedings w/out PC or acted in grossly negligent manner
    • 3) The underlying action was filed for improper purpose
    • 4) P actually sustained damges
  14. Interference w/ Contractual Obligations/Relations
    • Pa requires:
    • 1) the existence of an actual or prospective K

    2) an intent to harm the P by preventing the K relationship from occurring

    3) absence of any privilege of justification

    4) actual damages
  15. Negligence: Duty of Care
    Pa uses a weighing approach to determine whether a duty of care exist: Factors include:

    • -relationship btw parties
    • -social utility of actor's conduct
    • -nature of the risk imposed & the foreseeability of harm incurred
    • -consequences of imposing a duty on the actor
    • - overall public interest in the proposed solution
  16. Negligence: Wrongful Conception
    Pa doesn't recognize "wrongful birth" or "wrongfu life"

    * In Pa, wrongful conception applies where the injury is birth of a healthy child(usually negligent performance of vasectamy)

    -damages typically include cost of birty and cost of fixing the birth control measure( courts reluctant to award cost of raising the child)
  17. Duty to Disclose Risk of Treatment
    In Pa, failure-to-disclose cases are treated as actions in battery as opposed to negligence
  18. Medical Malpractice
    Under Pa law, if there was a substantial possibility of avoiding the injury but for the Dr's conduct, the he is liable.

    *Additionally, if his failure to exercise reasonable care increased the risk of injuries, he is liable.
  19. Negligence: Age of Capacity
    Under Pa law, kids under the age of 7 are presumed incapable of negligence

    *From ages 7-14, they are rebuttably presumed to be incapable of negligence

    *Over the age of 14, they are presumed capable of negligence
  20. Negligence- Degree of Care: Innkeepers
    Pa imposes the highest standard of care on inkeepers
  21. Negligence- Degree of Care: Automobile Driver Guest
    Pa doesn't have a "guest statute" concerning non-paying passengers in an automobile (ordinary care rule follows)
  22. Public Invitees
    Pa recognizes the public invitee designation

    *Member of the public who enters onto D's land for a purpose for which the land is held open to the public.
  23. Owners/Occupiers of Lands-Standard of Care: P's not on land
    Pa law imposes a duty when the defective natural condition could have been discovered by reasonable inspection on the D's part.
  24. Owners/Occupiers of Lands-Standard of Care: Trespassers
    Pa imposes some duty of care even in the case of an unknown trespasser

    *Wanton conduct
    - a reckless disregard of risk that makes harm highly probable

    *Willful conduct- an intentional act of unreasonable risk, unreasonable charater or so obvious that it must be wrong
  25. Landlord- Duty of Care
    Under Pa law, the LL has the duty to exercise R care when he undertakes to repair or rectify a dangerous condition, or if he has maintained control the part of the property where the dangerous condition exist
  26. Breach of Duty: Res Ipsa Loquitor
    Pa follows the majority rule.

    *The thing speaks for itself (used when P doesn't know D's action)

    * Merely of means of adducing evidence of breach of duty to satisfy the burden of producint evidence and the burden of persuasion
  27. Proximate cause- Foreseeable P's
    Pa follows a foreseeable P approach- a D owes a duty of reasonable care only to foreseeable P's

    *Those who are w/in the risk of harm created by D's unreasonable act

    *"Zone of Danger"- under the circumstance a R D would have foreseen a risk of harm to P
  28. IIED
    Pa allows recovery under 3 theories:

    1)Impact rule- physical injury is caused by D

    2) zone of danger rule (area in which he was at risk of being physically injured)

    3)Bystander rule (harm happens to a love one and P sues for his ED as a result)

    *Pa requires a physical manifestation of the emotional distress

    • *Pa law also allows for recovery where there is NIED if there is a preexiting duty to the P
  29. "Good Smaritans"
    Pa's "good samaritan" statute protects certain people who render aid unless there is proof of gross nelgigence

    • *Those protected are:
    • -medical personel
    • -non-med personel certified in first aid
    • -volunteers w/out compensation (coaches, umps, refs etc... in not-for-profit sports programs)
  30. Actions for failure to perform a gratuitous promise
    • Under pa law, one who undertakes , gratuitously or for consideration, to render necessary services to another , is subject to liability to th eother for physical harm if:
    • 1) His failure to exercise such such care increases harm

    2)The harm is suffered because of the other's reliance upon undertating
  31. Comparative Negligence
    Pa is a partial comparative negligence state. Under Pa law, a P can recover so long as the combined negligence of all D's is more than 50%
  32. Last Clear chance doctrine
    Pa no longer recognizes the last clear chance doctrine
  33. Defenses to Negligence: Implied assumption of risk
    The Pa supreme court has rejected implied AOR in negligence cases
  34. Strict Liability- Domestic animals
    Under Pa law, S\L does apply to an action for recovery for a dog bite even if the owner had knowledge of previous biting. (negligence standard of proof)
  35. Strict Liability-Comparative Negligence
    Pa doesn't apply comparative negligence to S/L cases
  36. Product Liability- Defective Product
    Pa uses a danger-utility test to determine which products are defective

    *A product id defective if a jury determines that the danger it threatens (cost in human injury and property damage) outweights its utility to society.

    -Balances potential severity of injury and cost of safer alternatives (safer design)

    *A products design is usually defective under this test if an alternative design could have reduced the danger at about the same cost
  37. Products Liability- Damages: Economic Losses
    Pa follows the majority rule and doesn't allow for recovery for a soley economic loss
  38. Products Liability- Defenses: Comparative Negligence
    Pa doesn't recognize comparative negligence as a defense to S/L actions. (ordinary neg on part of P not a defense)
  39. Public nuisance
    Under Pa law, where land used is recognized as injurious to health or welfare of the community, it is deemed nuisance per se and the proof necessary is only proof of the act
  40. Private Nuisance
    Under Pa law, it must meet 1 of 2 standards:

    1) Intentional and ureasonable, or

    2) Unintentional and otherwise actionable under liabilityrules for negligent or reckless conduct or abnormally dangerous conditions or activities

    *Pa does require that there be signficant harm
  41. Nuisance-Defenses: Compliance w/ statute
    • Under Pa law, there's protection for those operating an agricultural operation that has been lawfully operating for over a year
    • * Expansion ok if prior approval by the state was obtained prior to expansion
  42. Vicarious Liability: Auto owner/Driver
    Pa follows the traditional view and hasn't adopted a "permissive use" or "family car" approach

    * The owner of an auto has no vicarious liability for torts committed by another erson driving that auto w/ the owner's permission
  43. Vicarious Liability: Parent/Child
    Under Pa law, parents may be liable for their minor child's tort acts up to $2,500
  44. Vicarious Liability: Tavernkeepers/Social Hosts (Dramshop Law)
    Pa's Dramshop Law imposes liability on tavern keepers that supply alcoholic beverages to a minor or someone visibly intoxicated

    *Social host only liable if knwoingly provide alcohol to a minor (needs actual knowledge)

    (not liable for adults, even if visibly intoxicated)
  45. Release
    Pa follows the majority, the release of 1 D will not discharge other D's unless the release is a general release
  46. Contribution
    Pa allows for contribution based on the comparative fault of each torter

    - A torter that enters into a settlement may seek contribution from any other torter whose liability is completely extinguished by the settlement
  47. Abatement- Survival of Action
    Pa has a survival statute that allows for all claims to continue in the personal rep

    *HOWEVER, if the estate has not had a personal rep appointed w/in a year, the surviving party can request dismissal
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Pa tort distinctions
Pa tort distinctions