Torts Flashcards
Introductory Sentence: Negligence
“In any negligence action, a plaintiff must show that the defendant owed the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others, that the defendant’s conduct fell below the applicable standard of care, and that the defendant’s conduct was both the cause in fact and the proximate cause of the plaintiff’s injuries.
Duty of Care: Children
A child owes the duty of care of a hypothetical child of similar age, intelligence, and experience, acting under similar circumstances.
Adult Activity Exception: If the child is engaged in adult activity–i.e., one which is “normally undertaken only by adults, and for which adult qualifications are required” (e.g., driving a car, tractor, motorcycle, motor scooter, snowmobile, etc.)–then the child will be held to the same standard of care as a reasonably prudent adult engaged in such activity.
Tender Years Exception: Some states recognize the tender-years doctrine in which a child less than seven years of age cannot be found negligent.
Premises Liability: Undiscovered Trespasser
Definition: One who comes onto the land without permission or privilege who the premises possessor does not know about.
Rule: Undiscovered trespassers are not owed any duty of care
Premises Liability: Discovered Trespasser
Definition: A trespasser that the premises possessor knows or should know of.
Rule: The possessor must warn or make safe any unreasonably dangerous concealed artificial conditions that the landowner knows of
Exception: Attractive nuisance
Premises Liability: Attractive Nuisance
The premises possessor is liable if:
- He knows or has reason to know that children are likely to trespass;
- The condition is one which he knows or should know involves an unreasonable risk of death or serious bodily harm;
- The children because of their youth do not discover the condition or realize the risk involved;
- The burden of eliminating the danger is slight compared with the risk involved and the benefit to the possessor; AND
- The possessor fails to exercise reasonable care to protect the children.
This doctrine applies only if the child is engaging in an activity appropriate for children (i.e., not an “adult activity).
Premises Liability: Licensee
Definition: A social guest who has permission to enter the land but does not confer an economic benefit on the possessor of land.
Rule: The landowner must warn or make safe all concealed dangers (artificial or not, unreasonably dangerous or not) that the landowner knows of.
***Note: Most MEE answers state that a premises possessor owes a licensee the duty to “reveal hidden dangers of which the landowner knows or has reason to know and which the entrant is unlikely to discover.”
Premises Liability: Invitee
Definition: Those that enter either to confer an economic benefit (e.g., customers or employees of a store) or enter land that is open to the public at large (e.g., church, museum, etc.).
Rule: The premises possessor must warn or make safe all dangers that the landowner knows or should know of.
The premises possessor has a duty to inspect!!!
Negligence Per Se
A plaintiff can sue under a theory of negligence per se when the plaintiff can show three elements:
- The defendant violated a statute without excuse;
- The plaintiff was in the class of people that the statute was trying to protect, AND
- The plaintiff received the injury that the statute was trying to prevent.
If the plaintiff can establish the above elements, he has offered conclusive proof of duty and breach. (He must still prove cause and harm)
Res Ipsa Loquitur
The res ipsa loquitur doctrine allows the jury to infer negligence when the event is of a kind which ordinarily does not occur in the absence of negligence, other responsible causes are sufficiently eliminated by the evidence, and the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
Eggshell-Skull Rule
A defendant takes his victim as he finds him. The plaintiff with an “eggshell skull” who suffers damages greatly in excess of those that a normal victim would suffer is entitled to recover fully for his injuries.
Negligent Infliction of Emotional Distress
Generally must be a physical manifestation of emotional distress (e.g., heart attack).
Some jurisdictions only allow recovery if the plaintiff was “within the zone of danger.” Others allow it when the plaintiff was closely related to the victim, was located near the scene of the accident, and suffered shock resulting from “the sensory and contemporaneous observance of the accident.”
In almost all jurisdictions, mere receipt of news relating to an accident does not suffice.
Battery
- An act;
- With intent to cause a harmful or offensive contact or imminent apprehension of that contact; AND
- A harmful or offensive contact directly or indirectly results
Note that the primary difference between an assault and a battery is the harm suffered (for an assault, the plaintiff suffers imminent apprehension).
False Imprisonment
- An act;
- With intent to confine or restrain or a person to a bounded area;
- Actual confinement occurs; AND
- The plaintiff knows of the confinement or is hurt by the confinement
Consent Defense
Consent is a defense to an intentional tort. Consent can be express or implied.
E.g., In a boxing match, there is implied consent to getting punched in the face
Respondeat Superior
Employers are vicariously liable for torts of their employees if the torts are committed within the scope of employment.
Intentional torts are usually outside the scope of employment unless they were done for the purpose of serving the employer or if they were foreseeable.
