Torts Flashcards
(10 cards)
Explain the rule for false imprisonment.
False imprisonment requires that a person acts with intent to confine or restrain another person to a bounded area and those actions directly or indirectly result in such confinement. The plaintiff must be aware of the confinement or must suffer actual harm. The confinement may be physical, may be accomplished through use of threats, by failure to provide a means of escape, or by invalid use of legal authority. A plaintiff is not imprisoned if he submitted willingly to confinement. An area is not bounded if there is a reasonable means of safe escape of which the plaintiff is aware.
Explain the rule regarding employer liability
An employer is liable for an employee’s torts if the employer has the right to control the employee’s acts and the tortious conduct is committed within the scope of employment.
Explain the rule for negligence
To prove negligence, the plaintiff must establish that the defendant owed a duty, that it breached that duty, that its actions were both the actual and proximate cause of injury, and that damages resulted.
Explain the duty of care to invitees
Duty of care to invitees includes a duty to use reasonable care to conduct reasonable inspections of the property, discover unreasonably dangerous conditions, and protect the invitee from them. Such a landowner is liable for negligence that causes an invitee to be injured due to unsafe conditions.
Explain the rule regarding how to determine if the party acted with reasonable care.
In determining whether conduct lacks reasonable care, courts consider (i) the foreseeable likelihood that the person’s conduct will result in harm, (ii) the foreseeable severity of any harm that may result, and (iii) the burden of precautions to eliminate or reduce the risk of harm
Explain the rule regrading negligent infliction of emotional distress
A plaintiff can recover for negligent infliction of emotional distress (NIED) from a defendant whose tortious conduct placed the plaintiff in harm’s way if the plaintiff can demonstrate that she was within the zone of danger and the threat of physical impact caused emotional distress. Generally, the distress must exhibit some physical symptoms. In virtually all jurisdictions, emotional distress must result from sensory and contemporaneous observance of the accident itself, not the receipt of news relating to the accident. To recover as a bystander, the plaintiff must be closely related to a person injured by the defendant, be present at the scene of the injury, and personally observe or perceive the injury.
Explain Negligence what duty of care is generally owed.
Negligence is conduct, without wrongful intent, that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm. A prima facie case of negligence consists of four elements: (1) Duty – the obligation to protect another against unreasonable risk of injury; (2) Breach of Duty – the failure to meet that obligation; (3) Causation – a close causal connection between the action and the injury; and (4) Damages – the loss suffered. All four elements must be established in order to maintain a claim for negligence.
In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances. A breach of duty occurs when the defendant departs from the required standard of care, such as failure to act as a reasonable person, an unexcused violation of a statute, or, if there is no direct evidence, through res ipsa loquitur. However, compliance with a statutory standard does not insulate an act against liability for negligence.
When is a person liable for subsequent harm caused by their negligence?
An actor is liable for any reasonably foreseeable harm suffered as a consequence of her negligence. Subsequent medical malpractice or other negligent acts are generally considered foreseeable intervening causes and will not break the chain of the defendant’s liability.
Explain res ipsa loquitur
Under the doctrine of res ipsa loquitur, the trier of fact may infer the existence of the defendant’s negligent conduct in the absence of direct evidence of negligence. The plaintiff must prove that: (1) the accident is of a kind which ordinarily does not occur in the absence of negligence; (2) the harm was caused by an agent or instrumentality within the exclusive control of the defendant; and (3) the harm was not due to any action on the part of the plaintiff.
Explain joint and several liability
Under the doctrine of joint and several liability, each of two or more defendants who is found liable for a single and indivisible harm is subject to liability to the plaintiff for the entire harm. The plaintiff can choose to collect the entire judgment from one defendant or portions of the judgment from various defendants, as long as the entire recovery does not exceed the full amount of the judgment.
