Elements and Definitions

Question 1

Negligence Elements

Answer 1

1. Injury
2. Duty
3. Breach
4. Causation

Question 2

Bystander Liability (NIED) Rule and Elements

Answer 2

“bystander may recover for ED caused by OBSERVING negligent infliction of injury to a third person if P is
1. closely related to the victim
2. present at the scene of the injury when it occurred and was aware that the victim was being injured
3. P suffers ED beyond what would be expected in a disinterested witness”

Question 3

What determines breach?

Answer 3

the level/type of care D owes P

Question 4

What are Physical Damages? What type of duty of care is owed?

Answer 4

Bodily Harm and Property Damage; General Duty of Care, or Unqualified Duties of Care

Question 5

What are Nonphysical Damages? What type of duty of care is owed?

Answer 5

Economic Loss and Emotional Distress; Limited Duty of Care, or Qualified Duties of Care

Question 6

General Duty Rule (unqualified)

Answer 6

a person has a duty to take ordinary care to avoid causing physical harm to a reasonably foreseeable victims. General duty attaches to any course of conduct that carries risk of injury to another, and does not depend on stranger/non-stranger distinction.

Question 7

Ordinary Prudent Person Standard

Answer 7

A person has a duty to act as an ordinary prudent person would (General Duty). Objective standard.

Question 8

Types of Limited (Qualified) Duties

Answer 8

“1. Affirmative Duty to Protect/Rescue
2. Premises Liability
3. Pure Economic Loss
4. Negligent Infliction of Emotional Damage”

Question 9

Affirmative Duty to Protect or Rescue Baseline Rule

Answer 9

There is no duty to take affirmative steps to rescue someone, even when the act of doing so would cost you nothing

Question 10

Duty Owed to Undiscovered Trespassers (Premises Liability)

Answer 10

a landowner owes no duty to an undiscovered trespasser. he has no duty to inspect to ascertain whether persons are coming onto his property

Question 11

Duty Owed to Discovered Trespassers (Premises Liability)

Answer 11

once a landowner discovers the presence of a trespasser, he is under a duty to exercise ordinary care to warn the trespasser of, or to make safer, artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover. no duty owed for natural conditions and less dangerous artificial conditions

Question 12

Invitee (Premises Liability)

Answer 12

“Enters at invitation of possessor in furtherance of possessor’s business or mission (customer).

Possessor must take care to provide a reasonably safe premises.”

Question 13

Licensee (Premises Liability)

Answer 13

“Enter with permission of possessor but not in futherance of possession’s business or mission (social guest)

Must warn of hidden dangers about which the possessor knows, or should know about.”

Question 14

Trespasser (Premises Liability)

Answer 14

“Enters without permission.

No duty of care owed to adults (except for “known” trespassers).
when a possessor knows or ought to know that their property is constantly intruded on, they owe them a duty to warn of any dangers.

Duty owed to children not to maintain attractive nuisane or foreseeable dangerous conditions”

Question 15

Pure Economic Loss Baseline Rule

Answer 15

“there is no duty to take reasonable care to avoid pure economic loss.
economic loss is recoverable when it is parasitic on physical injury or tangible property damage.”

Question 16

Negligent Infliction of Emotional Damage Baseline Rule

Answer 16

there is no duty to avoid carelessly causing emotional distress to another person. if ED is parasitic on physical harm, the harm is recoverable

Question 17

Zone of Danger Test (NIED)

Answer 17

Where D acts carelessly to subject P to imminent physical danger of which P is aware of and which doesn’t materialize, P may recover for ED associated or stemming from that imminent danger

Question 18

Zone of Danger Elements

Answer 18

“1. D’s carelessness put P at risk of imminent physical harm
2. P’s awareness of that risk causes her to fear for her own safety
3. (MINORITY RULE) P’s fright produces physical consequences that would be elements of damage if bodily injury is suffered”

Question 19

Bystander Liability (NIED) Rule and Elements

Answer 19

“bystander may recover for ED caused by OBSERVING negligent infliction of injury to a third person if P is
1. closely related to the victim
2. present at the scene of the injury when it occurred and was aware that the victim was being injured
3. P suffers ED beyond what would be expected in a disinterested witness”

Question 20

TJ Hooper Rule

Answer 20

even if D acted within the care that is industry custom, that fact alone does not establish that D used the level of care of ordinary prudence

Question 21

Anti-TJ Hooper Rule

Answer 21

in professional malpractice cases, customary standard of care is dispositive. P must prove that D deviated from the standard of care in their practice. In professional malpractice cases, plaintiff almost always needs to bring in expert testimony to determine the standard of care

Question 22

Reasonable Prudent Patient Standard

Answer 22

what the physician should disclose to a patient in order that the patient can make an informed decision and act like an ordinary prudent person would do

Question 23

Superior Knowledge Rule

Answer 23

“Modified Objective Standard.
a person with special knowledge or skill is required to exercise the care a reasonable person with such special knowledge or skill would exercise under the same similar circumstances”

Question 24

Profession or Trade Principle (Modified Objective Standard)

Answer 24

a person engaged in a profession or trade is required to exercise the care a reasonable member of the profession or trade would exercise under the same or similar circumstances

Question 25

Hand Formula

Answer 25

"Burden < Probability x Loss Burden - cost of taking precaution Probability - that harm will occur Loss - magnitude of harm If burden outweighs PxL, the failure to take precaution is not a breach of standard of care"

Question 26

Res Ipsa Loquitur

Answer 26

"Exception to OPP breach allows a jury to infer negligence where the exact cause of an accident is unknown."

Question 27

Res Ipsa Loquitur Elements

Answer 27

"1. accident that harmed P is of a type that tends not to occur without carelessness 2. instrumentality of harm is in D's exclusive control 3. P was a passive victim"

Question 28

Actual Causation (Factual Cause)

Answer 28

"Did D's carelessness play a role in bringing about P's injury? But-for D's carelessness, would P be injured?"

Question 29

Proximate Cause (Legal Cause)

Answer 29

Limits the scope of cause in fact or actual causation. serves to cut off liability at a certain point even where cause in fact is satisfied, for reasons that the harm is somehow too attenuated to make liability justified

Question 30

Multiple Necessary Causes

Answer 30

Each D action is necessary to have caused the injury. individual actions, by themselves, are not sufficient to cause injury

Question 31

Multiple Sufficient Causes

Answer 31

"exception to but-for causation and disregards proximate cause if multiple acts occur, each of which standing alone would have been enough to cause injury, each act is regarded as an actual cause"

Question 32

Alternative Causation

Answer 32

"two or more D's act independently, fault of only one was necessary to cause P's injury, but which one is unknown. Burden of causation shifted to D to disprove their carelessness"

Question 33

Market Share Liability

Answer 33

"if multiple manufacturers of fungible goods are named as defendants in a negligence action and it cannot be determined which manufacturer caused the harm, the manufacturers will be held proportionately liable in accordance with their market share. Sindell v. Abbott Labs"

Question 34

Toxic Torts

Answer 34

"General Causation - P must prove that Drug is capable of causing harm in humans Specific Causation - P must prove that P's exposure to meds could have caused P's harm; P must also prove that P's exposure to meds was a necessary cause for P to contract harm Cooper v. Takeda"

Question 35

Loss of a Chance

Answer 35

P can recover for a loss of a chance of life, even if chance is less than 50%. redefined injury to solve causation puzzle in Falcon. P dies in child birth because IV was not administered. even if administered P would only have a 37% chance of living, but MD deprived P of chance to survive.

Question 36

Majority Test for Proximate Cause

Answer 36

Foreseeability Test

Question 37

Foreseeability Test

Answer 37

the conduct giving rise to the harm must be of the same general type or category to make liability justified. the category of the harm needs to be foreseeable

Question 38

Superseding Cause

Answer 38

an intervening event, occurring after the alleged tortfeasor's act, that is legally deemed to override the tortfeasor's act as the cause of the injury and to relieve the tortfeasor from liability to such injury

Question 39

Kinsman

Answer 39

"Proximate Cause If a negligent actor creates a risk of foreseeable injuries, the actor may be liable for actual injuries of that same general type even if the actual injury’s nature and extent were not foreseeable. Kinsman was dislodged at Continental’s dock by ice, causing damage to other ships who were dislodged, ultimately damming a river and wrecking a bridge If an actor’s negligence triggers a chain of events leading to harm, the actor’s liability is not limited by the fact that another person in the chain failed to act to diminish the ultimate harm."

Question 40

Palsgraf

Answer 40

"Proximate Cause a negligence plaintiff cannot piggyback on D's carelessness that was directed towards a differently situated person. P injured while standing on train platform when person drops fireworks on the tracks while trying to board train. a Jury could not find D was careless with reference to P."

Question 41

Negligence Per Se

Answer 41

"Filler for breach element. permits P to satisfy breach element of her cause of action by proving D violated a statutory rule of conduct."

Question 42

Analysis for Negligence Per Se

Answer 42

"1. Does the statutes (or regulation) set a standard of conduct? 2. is P a member of the class that the statute was meant to protect? 3. was the incident among those that the statute was intended to prevent? If YES to ALL, P can use NPS instead of having to prove each element of negligence If NO to ANY, P cannot rely on NPS, but might be able to introduce the violation as evidence suggesting D failed to conform to common law's ordinary care standard"

Question 43

Survival Action

Answer 43

Direct Action. Compensation by estate for losses incurred by decedent during life (payable to estate). Injuries suffered by tort victim. Estate can recover for pain and suffering decedent endured during the time between when injury occurred and before death

Question 44

Wrongful Death Action

Answer 44

"Derivative Action. Empowers decedent's surviving family members to seek compensation for loss of the support they have incurred as a result of the tortious killing of their decedent. Injuries suffered by next of kim/family of tort victim. Next of kin can recover for lost earnings of decedent after death (up to retirement) and loss of society damages (different from emotional distress) adds an additional class of plaintiffs who can recover from a tort suit, not a new tort. Duty/Breach/Causation still need to be proven."

Question 45

Contributory Negligence

Answer 45

if P is AT ALL to blame for their injury, P loses and is barred from recovery

Question 46

Comparative Fault

Answer 46

some at-fault P's can recover, but the compensatory damages awarded for those who do recover are reduced in proportion to fault. D must prove that P was negligent and that P's negligence was the actual cause of P's injury

Question 47

Modified Comparative Fault

Answer 47

MAJORITY RULE. P can recover until P's fault is at 50% or higher, then no recover

Question 48

Implied Assumption of Risk (AoR)

Answer 48

Complete bar to recovery. no agreement, but P freely and knowingly chooses to encounter a danger posed by D's carelessness

Question 49

Express Assumption of Risk (AoR)

Answer 49

Complete bar to recovery. Agreement between D and P, P agrees in advance to waive right to sue for injury caused by D's wrongdoing

Question 50

Express AoR Analysis

Answer 50

"If consent waiver is signed- public policy analysis 1. extremely common activity? 2. essential for public service? 3. advertised to the masses?"

Question 51

Sovereign Immunity

Answer 51

Affirmative Defense, only applies to US or State Government. Local governments and municipalities are not included (unless exception).

Question 52

Discretionary Function Exemption (DFE)

Answer 52

Government retains immunity under DFE because the gov't cannot be liable for discretionary calls

Question 53

Public Duty Rule

Answer 53

A government entity cannot be held liable for the injuries of an individual resulting from a public officer's or employee's breach of a duty owed to the public as a whole as distinguished from a duty owed to the particular individual

Question 54

Eggshell Skull Rule

Answer 54

D is liable for P's unforeseeable and uncommon reactions to D's negligent tort. Tortfeasor takes his victim as he finds him.

Question 55

Punitive Damages

Answer 55

money owed by D to P as punishment for egregious mistreatment, or to further deter similar actions. A wanton disregard (recklessness) of the safety of others, and which in law is equivalent to malice

Question 56

Battery

Answer 56

"Intentionally Causing another to suffer a harmful or offensive contact. ex: A intentionally shoots B in the back, B was unaware he was about to be shot (no assault)"

Question 57

Prima Facie Elements of Battery

Answer 57

"1. A Acts 2. Intending to cause a contact with P (intent-subjective) 3. The contact with P that D intends is of a harmful or offensive type (intent-objective) 4. A's act causes P to suffer a contact that is harmful or offensive (cause)"

Question 58

Assault

Answer 58

Intentionally causing another to reasonably apprehend imminent harm OR offensive contact.

Question 59

Prima Facie Elements of Assault

Answer 59

"1. A acts 2. Intending to cause in P apprehension of imminent harmful or offensive contact, and 3. A's act causes P reasonably to apprehend such contact"

Question 60

Transferred Intent

Answer 60

allows intent that is directed at another to be transferred to the person whom actually suffers consequences of the action

Question 61

Self-Defense is available to a victim who:

Answer 61

"1. reasonably believes 2. that the use of force is necessary 3. to avoid imminent injury to himself 4. the force must be proportional - non-deadly force can only be matched with non-deadly force"

Question 62

False Imprisonment Elements

Answer 62

"Actor A is subject to liability to P for false imprisonment if 1. A acts 2. intending to confine P 3. A's act causes P to be confined 4. P is aware of her confinement (Majority of Jurisidictions) Minority Elements: 1. P did not consent to be confined 2. A was not legally authorized to confine P"

Question 63

Shopkeepers Privilege

Answer 63

provides that a person who reasonably believes another person has stolen, or is attempting to steal property, is privileged to detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property

Question 64

Shopkeeper's Privilege Components

Answer 64

"1. a reasonable belief a person has stolen or is attempting to steal 2. detention for a reasonable time 3. detention in a reasonable manner"

Question 65

Intentional Infliction of Emotional Distress Elements

Answer 65

"1. D acts 2. for the purpose of (or recklessness as to) causing P severe emotional distress 3. D's conduct is "outrageous" 4. D's conduct causes such distress"

Question 66

Trespass to Land Elements

Answer 66

"1. D enters, or causes an entry, or remains on land, or fails to remove a thing from land that D is duty-bound to remove 2. the land is in the lawful possession of another 3. D intended to enter, or cause entry onto the land, or intended to remain on the land, or failed to remove a thing from the land. **Does not matter if D knows he is trespassing**"

Question 67

Trespass by Necessity

Answer 67

NOT a defense to a trespass action

Question 68

Conversion

Answer 68

Wrongful Taking of Someone's property

Question 69

Trespass to Chattel Components.

Answer 69

"damaged property or deprived of use. One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if 1. he dispossesses the other of the chattel, or 2. the chattel is impaired as to its condition, quality, or value, or 3. the possessor is deprived of the use of the chattel for a substantial time"

Question 70

Affirmative Defense to All Trespass Torts

Answer 70

Consent

Question 71

Nuisance Elements

Answer 71

"1. D acts 2. In a way that causes an ongoing and unreasonable interference 3. with P's use and enjoyment of property in which P has possessory interest"

Question 72

Injunctive Relief Standard (Nuisance)

Answer 72

If a nuisance exists, then an injunction is presumably appropriate, unless the hardship to D greatly outweighs the hardship to P

Question 73

What constitutes an unreasonable interference? (factors)

Answer 73

"Depends on its effects on an ordinarily reasonable person. Relevant factors to examine: Location of nuisance, Neighborhood’s character, Nature of the nuisance, Frequency of intrusion, Effect the nuisance has on health/life/property"

Question 74

Abnormally Dangerous Activities Elements

Answer 74

"An activity is “abnormally dangerous” if it: 1. Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors, and 2. Is not one of common usage"

Question 75

Product Liability Elements

Answer 75

"1. Injury 2. Product was sold by D 3. D is a commercial seller of the product 4. Product was defective at time of sale 5. Causation (actual and proximate)"

Question 76

Three Types of Product Defects

Answer 76

Manufacturing Defect (particular item defective) Design Defect (product line flaw) Failure to Warn