PENNSYLVANIA TORTS DISTINCTIONS PROFESSOR MICHAEL P. MORELAND VILLANOVA UNIVERSITY SCHOOL OF LAW

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1 PENNSYLVANIA TORTS DISTINCTIONS PROFESSOR MICHAEL P. MORELAND VILLANOVA UNIVERSITY SCHOOL OF LAW CHAPTER 1: INTENTIONAL TORTS & NEGLIGENCE A. Intentinal Trts 1. Battery Exam Tip 1: Remember that Pennsylvania essay questins usually ask abut several different areas f law at nce. An essay questin might pse bth a trts and an evidence issue, fr example. Be prepared t lk fr and t answer a trts issue in mre than ne essay questin n the Pennsylvania bar exam. 1) Defendant, 2) t cause harmful r ffensive cntact with Plaintiff, 3) And Defendant's act such cntact. Operating n a patient withut the patient s infrmed cnsent is a claim (nt a claim). Fr a patient t give infrmed cnsent t a prcedure, the physician must disclse the risks a reasnable persn wuld need in rder t decide whether t underg the prcedure. 2. Defenses t Intentinal Trts a. Self-Defense A persn is nt required t retreat in the face f attack under the majrity rule, but there is a grwing trend tward requiring retreat unless ne is in ne s wn. Under the Restatement (Secnd), a persn has a duty t retreat befre he may use defensive deadly frce if he can d s safely. b. Pennsylvania Stand-Yur-Grund Statute Pennsylvania impses a general duty t retreat. Hwever, an actr des nt have an bligatin t retreat in the face f attack if she is in her wn r place f unless the persn is the initial aggressr, r the persn is attacked in her place f wrk by a c-wrker. An actr des nt have t retreat and has the right t stand her grund and use frce, including deadly frce, if she is attacked in a place where she wuld nrmally have a duty t retreat, and if all f the fllwing cnditins are met:

2 The actr is nt engaged in criminal activity and nt in illegal pssessin f a The actr has a right t be in the place she was The actr believes that frce is necessary t prtect herself The persn against whm frce is used displays a a replica firearm, r ther deadly weapn B. Negligence The prima facie case fr negligence cnsists f fur elements: 1) : the bligatin t prtect anther against unreasnable risk f injury 2) : the failure t meet that bligatin 3) : a clse causal cnnectin between the actin and the injury 4) : the lss suffered 1. Duty Pennsylvania recgnizes many factrs t cnsider t determine whether a duty f care exists, including: The relatinship between the The nature f the risk impsed and freseeability f incurred The cnsequences f impsing a duty n the persn The scial utility f the persn s cnduct The verall public in the advised slutin 2. Breach: Special Issues a. Children Children under age seven are cnclusively presumed t be f negligence (the tender years dctrine ). Children between the ages f 7 and 14 are presumed t be incapable f negligence. Children ver the age f 14 are presumed f negligence. b. Owners and Occupiers f Land Pennsylvania preserves the three-part framewrk fr the duty f care wed t entrants upn land:. Pennsylvania has nt fllwed the lead f ther jurisdictins (such as Califrnia) in ablishing this framewrk r in cllapsing the distinctin amng the three categries Themis Bar Review, LLC PA Trts Distinctins

3 An is ne wh enters the land f anther by invitatin, ften, but nt necessarily, fr the business purpses f the landwner. A landwner wes the greatest duty f care t invitees: he is under the same bligatins wed t licensees (duty t warn and t use reasnable care), but als must cnduct reasnable inspectins f his prperty and remedy dangerus cnditins. A is ne privileged by virtue f the landwner s cnsent t enter r remain upn anther s land fr his wn benefit. guests are cnsidered licensees (the classic example). A landwner is bligated t warn a licensee f knwn cncealed cnditins, and must exercise reasnable care in cnducting activities n the land. A is ne wh enters r remains upn the land f anther withut privilege t d s. Discvered trespassers: Landwners we a duty tward discvered r anticipated trespassers t warn r prtect them frm cncealed dangerus cnditins. There is n duty t warn f natural cnditins r artificial cnditins that d nt invlve risk f death r serius bdily harm. Undiscvered trespassers: Landwners we n duty t undiscvered trespassers, nr d they have a duty t inspect their prperty fr evidence f trespassers. There is n duty wed t an undiscvered trespasser. Pssessrs have a duty t avid wantn cnduct, the reckless disregard f an extreme risk which makes harm highly prbable; and willful cnduct, an intentinal act f extreme risk s bvius that the pssessr must be aware f it. CHAPTER 2: DUTIES, DEFENSES, STRICT LIABILITY, PRODUCTS LIABILITY, & DEFAMATION A. Affirmative Duties 1. Gd Samaritan Statute Prtects peple generally wh are prviding emergency medical care r rescue in gd faith against civil damages fr acts f negligence. There must be prf f negligence r recklessness, r intentinal r wantn cnduct fr a plaintiff t recver. PA Trts Distinctins 2016 Themis Bar Review, LLC 3

4 2. Parents Parents are nt vicariusly liable fr their children s trts, but may be directly liable fr (i) prviding the child with a dangerus bject if the child lacks the maturity and judgment t cntrl, r (ii) failing t prtect against a child s knwn dangerus tendency (e.g., leaving matches fr a pyrmaniac). Parents may be liable fr up t per persn (up t a ttal f in damages fr trts cmmitted by their minr children. 3. Taverns and Scial Hsts Tavern keepers (r any liqur licensee) are prhibited under the Pennsylvania Dram Shp Act frm selling, furnishing, r giving any alchlic beverages t r any visibly persns. Adult scial hsts are liable fr knwingly serving alchl t a minr wh then injures himself r anther party, but are nt liable fr serving alchl t intxicated adults. B. Defenses t Negligence 1. Cmparative Negligence Pennsylvania fllws a partial r mdified cmparative negligence statute under which plaintiff s recvery is barred if he was mre than at fault. Plaintiff s full damages are calculated by the trier f fact and then reduced by the prprtin that his fault bears t the ttal harm Example 1: If the jury determines that the plaintiff was 60% at fault and the defendant was 40% at fault, the plaintiff recvers nthing. Example 2: If the plaintiff is determined t be 40% at fault and the defendant 60% at fault, then the plaintiff s recvery will be reduced by 40%. S if full damages are $100,000, the plaintiff will recver $60, Assumptin f the Risk Fr the mst part has been subsumed under cmparative fault in Pennsylvania. Hwever, there are sme pckets f assumptin f the risk (which serves as a cmplete bar t plaintiff s recvery, where established). Mstly in cntext f activity, e.g.: When plaintiff is perating an ff-rad vehicle r dwnhill skiing C. Immunities Intra-family immunity has been (e.g., husband/wife r children/parents). State Gvernment and Municipalities: Gvernment immunity is waived in: Vehicle liability Care, custdy, r cntrl f persnal prperty Themis Bar Review, LLC PA Trts Distinctins

5 Care, custdy, r cntrl f animals Real prperty Trees, traffic cntrl systems, and street lighting Streets Sidewalks Utility service facilities Charitable immunity has been. D. Jint and Several Liability 2011 Pennsylvania Fair Share Act significantly refrmed Pennsylvania law n jint and several liability. A defendant s liability is nt jint. This means that a defendant is nly respnsible fr the prprtin f the ttal amunt awarded as damages. The plaintiff can n lnger g after every ptential defendant wh has been assessed a prprtin f fault in the case fr the whle amunt f plaintiff s damages. Example 3: If there are tw defendants and D1 is allcated 70% fault and D2 allcated 30% fault, the 30% at fault defendant (D2) nly has t pay f plaintiff s ttal damages. Hwever, if a defendant is mre than 60% at fault, the plaintiff can g after that plaintiff fr the amunt f damages. In the case f a defendant wh is mre than 60% at fault and is therefre jint and severally liable, when that defendant pays mre than his share f the damages award, he can bring a cntributin claim against any ther defendants wh paid less than their share f the damages. E. Strict Liability Plaintiffs cannt recver fr a dg bite under strict liability, even if the dg s wner knew f the dg s previus biting f ther persns. F. Prducts Liability Pennsylvania law basically adheres t a strict liability apprach t defective prducts. Pennsylvania fllws a apprach t prducts liability claims alleging a defective design f a prduct. The trier-f-fact lks t see if there was a reasnable alternative that the manufacturer failed t undertake. Editr's Nte 1: While Pennsylvania des permit a plaintiff t establish that a prduct has been defectively designed by applying the risk-utility apprach, Pennsylvania als permits a plaintiff, in the alternative, t utilize the cnsumer expectatin apprach t establish that a prduct has been defectively designed. PA Trts Distinctins 2016 Themis Bar Review, LLC 5

6 G. Other Trts 1. Defamatin Plaintiff may bring an actin fr defamatin: If defendant s defamatry language, Is f r cncerning the plaintiff, Is published t a third party, and Damages plaintiff s reputatin. Pennsylvania als requires a shwing f n the part f the defendant in all defamatin cases. H. Summary Editr's Nte 2: As nted abve, a defectively designed prduct may be established under Pennsylvania law by either the risk-utility apprach r the cnsumer-expectatins apprach. [END OF HANDOUT] Themis Bar Review, LLC PA Trts Distinctins

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