Torts Flashcards

Question

Negligence - Duty: Special Standard of Care (Children)

Answer 1

Rule: There are specialized standards of care for children, that are subjective (i) children under the age of 5 owe no duty of care, i.e. cannot be liable for negligence (ii) For children between 5 - 18 years of age, the SOC is that of a child of same (i) age, (ii) experience, and (iii) intelligence, acting under similar circumstances Exception: If child is engaged in an adult activity, then the RPP standard is used (ex. motorized vehicles - boat, tractor, jet ski, etc)

Answer 2

Rule: The standard of care for professionals is to exercise the same care as an average member of their same profession, providing similar professional services Note: Empirical Standard - This is when cases end up in malpractice suits - Expert witnesses almost always needed - **on exam do not use "reasonable doctor"

Answer 3

Rule: An owner may use reasonable force to recapture a chattel when in "hot pursuit" of the tortfeasor. The defense of recapture of chattels is limited by the circumstances of the original dispossession. When another's possession of the owner's chattel began lawfully, the owner may use only peaceful means to recover the chattel A demand for return of the chattel must be made before force is used, unless the demand would be futile or dangerous. However, force can be used only against the tortfeasor or a third party who knows that the chattel was tortiously obtained. If an innocent third party has obtained the chattel, the owner is no longer privileged to use force to effect a recapture of the chattel.

Answer 4

Rule: In addition to having a reasonable belief as to the fact of theft, a shopkeeper is required to conduct the detention in a reasonable manner and detain the suspect for a reasonable period of time for the privilege to apply By statute in some states and case law in others, shopkeepers have been given a privilege to detain someone suspected of shoplifting and thus avoid liability for false imprisonment. The following conditions must be satisfied: 1. There must be a reasonable belief as to the fact of theft; 2. The detention must be conducted in a reasonable manner and only non-deadly force can be used; and 3. The detention must be only for a reasonable period of time and only for the purpose of making an investigation

Answer 5

Rule: A landowner may not use force to regain real property after being tortiously dispossessed. Most states today do not allow resort to "self-help"; one who has been wrongfully excluded from possession of real property may bring an ejectment action or other summary procedure to recover possession Note: One may not use indirect deadly force such as a trap, spring gun, or vicious dog when such force could not lawfully be directly used, e.g., against a mere trespasser

Answer 6

Land = Property Rule: For possessors of property, there is no single standard of care, SOC depends upon type of entrant

Answer 7

Rule of Duty: There is no duty, zero duty rule (not obligated to take any steps to protect from harm) Why: Unforeseeable victim

Answer 8

Who: Someone you should expect to trespass, or you know to trespass Rule of Duty: The possessor must protect those from hazards that are: (i) artificial conditions on the land (ii) highly dangerous conditions (iii) concealed from the trespasser at the time of suit (thus, no liability for open or obvious); AND (iv) known by the D Short-phrase Rule: In the case of a trespasser, P only has duty to protect from known, man made death traps on the land

Answer 9

Rule: Entitled to protection from any condition that is (i) concealed from the licensee but (ii) known to the D Who: Only those who come on to the property with permission, express or implied (but do not add any financial value to you) - Most common types of licensee: social guests, or someone there for an agenda of their own Short-Phrase: Must protect from all known traps on the property

Answer 10

Rule of Duty: Entitled to protection from any condition that is (i) concealed from the invitee and that D (ii) knew in advance or could have been discovered through a reasonable inspection Note: Inspected at a reasonable amount of time (via custom, location, etc.) Who: Enter with permission, express or implied, but there for a purpose which confers economic or financial benefit on the property possessor, or open to the public at large - Most common: customer of a business Short-Phrase: For invitees, must protect from all reasonably knowable traps on the land

Answer 11

Rule: Two Ways to Satisfy Duty of care in premises liability: (i) Eliminate the hazardous condition: Repair, replace, or remove (ii) Give a warning, must be sufficiently complete in communicating the danger to parties (can be oral or written)

Answer 12

Two Kinds - (i) Firefighters and Police Officers (ii) Firefighters Rule: If injured by risks inherent to their job, there is no SOC and they receive no recovery (relevant to police as well) Children's Rule: Property possessor owes a child trespasser duty of ordinary care (RPP) Common Law - Attractive Nuisance: More generous SOC for intriguing circumstances for children i.e. swing sets, trampolines, etc.

Answer 13

Rule: In order to show a prima facie breach of SOC, P must (i) Borrow a Statute and (ii) prove that the statue had been violated. (i) Borrow a Statute: Must show P is a member of the class of persons the statute was attempting to protect, and the accident that occurred was the type of harm in which the statue was attempting to prevent Note: No penalty for trying and failing, thus goes under the RPP standard

Answer 14

Exception 1: If compliance under the statute would be more dangerous than violation, under the circumstances, then the statute will not be used Exception 2: If statutory compliance would have been impossible under the circumstances

Answer 15

General Rule: There is no duty to act affirmatively, i.e. no requirement to be a Good Samaritan Exceptions: (1) Preexisting relationships will trigger a duty, traditional rule requires a "formal relationship" such as: - employer/ employee - common carrier/ delivery - inn keeper/ guest - family member/ family member (2) If the D is the cause of the peril Here: the duty is not a duty to rescue, but a duty to act reasonably under the circumstances Note: Duty does not arise if you have to put your own life in danger

Answer 16

Rule: A person who voluntarily rescues and makes an error will not be liable for that error Reversal of traditional rule

Answer 17

Rule: Three Types (1) Near Miss Case: Negligent D ALMOST injured P - Must show D didn't act as RPP, D's negligence put you in a zone of danger, and as a result of the distress there is a subsequent physical manifestation of the distress (2) Bystander Case: Negligent D actually causes severe bodily injury or death to a party not involved in the present incident - P must show that he and X were close family members (spouse, parent and child) and that P seen it contemporaneously (as it happens) (3) Business Relationship: P and D in pre-existing business relationship, and it is highly foreseeable that careless performance by D will produce emotional distress

Answer 18

Rule: Breach is a concrete, specific behavior that failed to meet the standard of care, can be either an act or an omission **on exam, identify the wrongful conduct and explain why it was wrongful

Answer 19

Rule: Res ipsa loquitor is a doctrine that allows a court can infer negligence from the very nature of an accident or injury in the absence of direct evidence on how any defendant behaved (circumstantial evidence) Must show (i) the accident is one ordinarily associated with negligence and (ii) the accident which occurred would normally be due to someone in this D's position Translation: the think speaks for itself

Answer 20

Rule: But For Test, where P establishes a factual connection between the breach and the harm i.e. But for the breach, P would not have been injured

Answer 21

Rule: Substantial Factor Test - D is liable if his breach substantially contributed to the ultimate injury suffered by the P, left to jury, and held jointly and severally liable (can recover from both Ps) Additional: Occurs if both negligent acts could have caused P's harm on their own What: Two D acting independently negligent creates a harm and force operates separately but eventually merges to create a single merged harm

Answer 22

Rule: BOP is shifted to Ds to prove that they were not the cause of the harm. If they cannot, jointly and severally liable What: When there is no way to ascertain the cause/ source of the harm, BOP shifts to D

Answer 23

Rule: Proximate cause refers to the foreseeable consequences of that breach, then liability is "fair " Proximate Cause Scenarios: "

Answer 24

- Intervening Negligent Medical Treatment

Answer 25

Rule: D will be liable for intervening negligent medical treatment, and remains a proximate cause. Although the doctor remains liability, there is still joint liability

Answer 26

Rule: D be liable for the acts of a negligent rescue, remains a proximate cause

Answer 27

Rule: D will be liable for intervening protection or reaction forces, remains a proximate cause

Answer 28

Rule: D will be liable for subsequent disease or accident, remains a proximate cause

Answer 29

Rule: Under the Eggshell Plaintiff Doctrine, a plaintiff will recover for all damages suffered, even if damage is surprisingly great in scope due to their own particularized set of circumstances i.e. you take your plaintiff as you find your plaintiff

Answer 30

Rule: Under the view of comparative negligence, D provides evidence that establishes that P failed to exercise proper care for his or her own safety P's recovery will be reduced based on the P's percentage of fault. Jury decides percentage amount

Answer 31

General Rule: No strict liability for domesticated animals Domesticated Animals: House pets and farm animals Exception: If D has knowledge that animal has dangerous or vicious propensities, will be held to strict liability

Answer 32

General Rule: If D is in possession of wild animals, D will be held liable for all harm caused by the animal, no matter what precautions were taken

Answer 33

Rule: D will be held strictly liable for abnormally dangerous activities Ex. explosives, handling or transport of dangerous/ toxic chemicals, nuclear materials Abnormally Dangerous Activities Standard = (1) Type of activity which cannot be made reasonably safe even through the exercise of ordinary care (significant amount of risk) (2) Activity is uncommon in the area where it is conducted

Answer 34

Rule: D will be held strictly liable under claims of defective products, as long as it meets the elements below: (1) D must be a merchant (one who deals in goods of the kind sold) Exceptions: casual sellers, commercial lessors (rental cars), products provided with services, everyone in distribution chain is subject to strict liability Note: Privity of contract is not required (2) Product must be Defective: (i) manufacturing defect - when differs from all others that came off same line, in a way that makes it more dangerous than consumers would expect (ii) Design defect - when the risks associated with the product design outweigh the utility of the design choice (I) hypothetical safer alternative design (II) that is practical and (III) it is cost effective/ economically feasible (iii) hidden risks that are not apparent to users, unless it has adequate and sufficient warnings to protect from harms Adequacy = (I) prominent, (II) comprehensible, (III) and provides information about mitigating the risk (3) Product must not have been Altered - note if product moved it into the ordinary channels, it is presumed that it has not been altered (4) P was making a foreseeable use of the product at the time of use (Note: note the same as intended or appropriate use)

Answer 35

Traditional Rule: If a P knowingly encountered a dangerous situation that would normally lead to strict liability, then P would be barred from recovery

Answer 36

Rule: To prevail in a nuisance claim, a P must show that D's activities have unreasonably interfered with P's ability to use and enjoy property to a substantial or significant degree Courts often use "intolerable" Involves an interference with the ability to use and enjoy property Note: Intent is awareness of engaging in activity Note: Continuous behavior is also useful to prevail

Answer 37

Rule: Vicarious liability s a form of a strict, secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" Note: Always based on relationships (i) Employer/ Employee - respondeat superior, Employer will be held liable if acting within the scope of employment - not frolic and detour i.e. major departure from the work, outside scope of employment (intentional torts generally outside scope, unless acting to further employers interest, or authorization of physical force) (ii) Independent Contractors: Rule: Hiring companies are not liable for the torts of IC - but remains liable if business owner has IC come on the property and the IC negligently harms customers on property

Answer 38

General Rule: All D's jointly and severally liable (note, 30 of 50 states have abolished this, BUT on exam) Modern Rule: Each D gets assigned a percentage of fault by the jury, and they have to compensate P for their percentages owed Indemnification: to be fully reimbursed for damages paid, "hold harmless" ex. Strict liability, non - manufacturers are generally indemnified

Answer 39

Rule: If spouse is injured, spouse can receive a separate cause of action, designed to compensate for (i) loss of household services (ii) loss of society (companionship) (iii) loss of sex

Answer 40

Rule: Defamation - involves an allegation of fact that affects adversely on some trait or character (reputation) Elements 1. (i) P must show defamatory statement (ii) that specifically identifies the P (does not have to use name) Defamatory Statement = statement that tends to adversely affects reputation - Note: Statement of opinions are not generally defamation statements (Exception: unless it applies fact) - or mere statements of insults do not meet muster - P must be alive 2. the statement must be published (i.e. others must be aware) - does not have to be intentional, negligence can suffice - everyone who repeats is susceptible to liability as a republisher 3. Damages - libel and slander

Answer 41

Rule: Libel is any defamation in permanent form (all need is statement and publication)

Answer 42

Rule: Slander is spoken or oral defamation Slander per se - Damages are presumed 1. Any statement relating to business/ profession (same damages as label) 2. Any statement that P has committed a serious crime (involving honesty or violence) 3. Statement that imputes on chastity of a woman 4. Plaintiff suffers from loathsome disease (only applies to leprosy and venereal disease) Slander/ Non-Slander Per Se: In cases of general slander/ non-slander per se, P must offer evidence of damages/ economic harm

Answer 43

Rule: If any of these affirmative defenses apply, a D will not be liable for defamation - Consent: There will be no liability if - Proof of Truth: There will not be any liability if proof of truth can be shown - Privileges: (i) Spousal, and (ii) Officers of the three branches of government within their scope of work (iii) Qualified Privilege - when there is a public interest in encouraging candor (i.e. protect from getting sued0, but (1) persona invoking must have a good faith, reasonable basis and (2) must confine self to matters that are relevant at hand

Answer 44

Rule: If a statement is a matter of public concern, if P is a Public Figure, must also prove (1) falsity of the statement and (2) some degree of fault (i.e. made in bad faith, malice - knowing its false of reckless disregard of falsity) or If the P is a private figure, P must also prove that (i) the statement was made negligently for a D to be liable for defamation Matter of Public Concern = Newsworthy, widespread public interest, that there is likely to be public discourse (i.e. public officials, celebrities, athletes, etc.)

Answer 45

Rule: Invasion of privacy occurs when a P's reasonable expectation of privacy into his/ her private affairs (1) Appropriation (2) Intrusion (3) False Light (4) Disclosure

Answer 46

Rule: Appropriation occurs when D uses P's name or image for a commercial purpose Note: Applies to everyone, not just famous, or public officials Exception: (1) Newsworthy

Answer 47

Rule: Intrusion occurs when there is an invasion of a Ps seclusion in a way that is highly offensive to a reasonable person, must be in a place with a reasonable expectation of privacy

Answer 48

Rule: False light is a type of of invasion of privacy where there is a widespread dissemination of a material falsehood about P that would be highly offensive to a reasonable person Note: Still actionable, even if accidental/ not purposeful Defenses: Absolute and Qualified Privileges

Answer 49

Rule: Disclosure is a type of of invasion of privacy where there is widespread dissemination of confidential information about P that would be offensive to a reasonable person Note: Exceptions: (1) Newsworthy (2) Must be truly confidential Defenses: Absolute and Qualified Privileges

Answer 50

Rule: Damages hinge upon emotional damages

Answer 51

Rule: The defenses to the tort of invasion of privacy are (1) Consent (2) Privileges (i) Qualified, and (ii) Absolute

Answer 52

Rule: While criminal acts of third persons are intervening forces that operate on the situation created by the defendant's negligence, they are independent actions rather than natural responses or reactions to the situation. This type of intervening force may be foreseeable, but only when the plaintiff can show that the defendant's negligence increased the risk that the force would cause harm to the plaintiff.

Torts Flashcards

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