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Fall 2022 > Torts > Flashcards

Torts Flashcards

(108 cards)

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1
Q

Palsgraf v. Long Island R. Co

A

Outside the scope of foreseeability

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2
Q

McCann v. Wal-Mart Stores, Inc.

A

false imprisonment

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3
Q

Katko v. Briney

A

Spring gun is excessive property defense

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4
Q

Robins v. Harris, 769 N.E.2d 586 (Ind. 2002)

A

Inmates can’t consent

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5
Q

Cullison v. Medley (1991)

A

Assault: words + actions

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6
Q

Cohen v. Smith, (1995)

A

Battery: C-Section and contact on-notice of offense

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7
Q

Garratt v. Dailey, (1955)

A

Children can form intent

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8
Q

White v. Muniz, (Colo. 2000)

A

Dementia patient can form intent

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9
Q

Baska v. Scherzer, (Kan. 2007)

A

Transferred intent: woman struck intervening in fight

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10
Q

Snyder v. Turk, (Ohio Ct. App. 1993)

A

I’m working in a hole here!

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11
Q

Surocco v. Geary, (1853)

A

Public necessity: Exploded house in SF Conflagration

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12
Q

Ploof v. Putnam, 81 Vt. 471 (1908)

A

Private necessity: Moored boat on private dock

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13
Q

Stewart v. Motts, (1995)

A

GDC: Car fuel ignites

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14
Q

Posas v. Horton, (Nev. 2010)

A

GDC: Sudden Emergency - Prior negligence

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15
Q

Shepherd v. Gardner Wholesale, Inc., (Ala. 1972)

A

GDC: Cataracts - Victim with Disability

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16
Q

Creasy v. Rusk, 730 N.E.2d 659 (Ind. 2000)

A

GDC: Alzheimer’s patient, still GDC

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17
Q

Stevens v. Veenstra, (Mich. Ct. App. 1997)

A

GDC: 14yo Driving Student

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18
Q

Hill v. Sparks, (Mo. Ct. App. 1976)

A

GDC: Scraping Machine kills sister - superior training elevates duty of care

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19
Q

O’Guin v. Bingham Cnty., (Idaho 2005)

A

Negligence per se - kids in landfill

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20
Q

§ 288A Excused Violations

A

(1) An excused violation is not negligence.
(2) Unless construed not to permit such excuse, violation is excused when
(a) incapacity;
(b) neither knows nor should know;
(c) unable after reasonable diligence or care;
(d) emergency not due to his own misconduct;
(e) compliance would involve a greater risk of harm to the actor or to others.

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21
Q

Chaffin v. Brame, (N.C. 1951)

A

Negligence per se: Driver blinded by oncoming traffic runs into truck stopped in moving lane

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22
Q

Pipher v. Parsell, (Del. 2007)

A

Foreseeability: second grab at the wheel was foreseeable

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23
Q

Negligence per se test

A
  1. Stature was to prevent the class of injury
  2. Victim was of the class to protect
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24
Q

Limones v. Sch. Dist., (Fla. 2015)

A

Foreseeable duty to supervise and care after injury

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25
Robinson v. Lindsay, 598 P.2d 392 (Wash. 1979)
13yo driving a snowmobile held to adult duty of care
26
Bernier v. Bos. Edison Co., 403 N.E.2d 391 (Mass. 1980)
Car accident breaks power pole, negligent design
27
United States v. Carroll Towing Co., (2d Cir. 1947)
Barge lost for lack of bargee - B < PL (Risk Utiity)
28
Apportionment
Negligent parties pay their portions
29
Comparative Fault
Recovery is apportioned to parties corresponding to their negligence
30
Joint and Several Liability
Plaintiff can recover full damages from any/all negligent parties. Plaintiff made whole
31
Contribution
Joint and severable defendant's can recover portions of judgements from other defendants
32
General Duty of Care
Reasonable Care under all the circumstances
33
Prior Negligence
Negligence that occurs prior to the incident of injury
34
Eggshell Plaintiff
Take the victim as found
35
Existence and Scope of duty is a question of:
Law
36
Impson v. Structural Metals, Inc., (Tex. 1972)
Neglilgence per se: truck passing on left near intersection
37
Constructive Notice
Defendant did not create but failed to discover or correct
38
The Actor’s own standard
does not change the duty of care
39
Custom as evidence
Custom can support non-negligence, but does not preclude it
40
Compliance with Statute
provides a minimum standard of care, but does not preclude negligence
41
The T. J. Hooper, (2d Cir. 1932)
Custom does not define the standard of care
42
Stinnett v. Buchele, (Ky. Ct. App. 1980)
Roofing contractor was expert, made own choice about risk
43
Res Ipsa Loquitur
Speaks for itself: negligence as an inference when cause unknown
44
Right v. Breen, (Conn. 2006)
Plaintiff must show actual harm
45
Lasley v. Combined Transp., Inc., (Or. 2011).
Two sufficient causes (substantial factors test). Drunk applies to negligence, not actual cause
46
Landers v. E. Tex. Salt Water Disposal Co., (Tex. 1952)
Fish kill - Joint and Severable
47
Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009)
Flying Trampoline - Scope of Risk
48
Rescue Doctrine
Rescuers inherit negligence of original victim
49
Crumpton v. Humana, Inc., (N.M. 1983)
Summary Judgement, Statute of Limitations, defense to negligence
50
Lincoln Elec. Co. v. McLemore, 54 So. 3d 833 (Miss. 2010)
Statute of limitations accrues from date of discovery of injury, not correct identification of injury
51
Bennett v. Stanley, (Ohio 2001)
Attractive Nuisance
52
Byrne v. Boadle (1863)
Res Ipsa Loquitur - Hit by flour barrell
53
Concert of action
2+ Defendants acting for a common course of action
54
Indivisible injury rule (FL)
Two successive (not concurrent) accidents with no way to divide the loss between tortfeasors, several and liable exception
55
Thoma v. Cracker Barrel Old Country Store, 649 So. 2d 277 (Fla. Dist. Ct. App. 1995)
Constructive Notice, slip and fall, proven by timeline of substance not being cleaned up
56
Counter-Factual
Jury determines what would a reasonably prudent person have done?
57
Negligence per se
Uses a statute to establish duty and breach
58
Public at Large Exception
Negligence per se does not apply to public at large statutes, too vague
59
"Negligence per se" is a question of _____
Law (for the court)
60
Res Ipsa Loquitur test
1. The accident causing Plaintiff's harm ordinarily happens as a result of negligence 2. of a class of actors of which Defendant is a member
61
FL §786.81
(Florida) Comparative Fault, not several liability
62
Summers v. Tice, 199 P.2d 1 (Cal. 1948)
Concert of Action (indivisible injury) - Two bird hunters shoot beater
63
Respondeat Superior
Vicarious Employer Liability
64
Goals of Vicarious Liability
1. Prevention of future injuries 2. Assuring compensations to victims 3. Equitabile spreading of losses caused by an enterprise
65
§13 Vicarious Liability
A person whose liability is imputed based on the tort of another is liable for the entire share of comparative responsibility
66
Scope of Employment is a question of ____
Fact (for the Jury).
67
Fruit v. Schreiner (1972)
Life insurance salesman, on the job (jury)
68
Scope of employment test
At the time the employee committed the tort was the employee performing a service in furtherance of his employer's business?
69
Vicarious Liability is a form of ___ liability
Strict
70
Vicarious Liability and Fault
The employee must be liable for committing a tort in order to find the employer liable.
71
Vicarious Liability Indemnity
An employer has a right to recover from an employee for the employee’s tortious judgements
72
Borrowed Servants
When an employer "loans" an employee they generally retain vicarious liability, excepting evidence that the borrowing employer had control over the employee
73
Gratuitous Service
1. Acting on behalf 2. Submits to direction
74
Going and Coming Rule
Commute is not usually within scope of employment Exceptions: 1. Incidental benefit to employer 2. Distant Labor Market 3. Travel time under contract 4. On-call 5. Drives personal car for work-related tasks
75
Hinman v. Westinghouse Electric (1970)
Contracted commute is in scope of employment
76
Edgewater Motels v. Gatzke (1979)
Working in a motel can be in scope of employment
77
Frolic and Detour
"Detour" is in scope; "Frolic" is out of scope of employment
78
Re-entry into employment
1. Intent to furtherance of business 2. Reasonable connection to time/space of work
79
Working in a motel can be in scope of employment
Edgewater Motels v. Gatzke (1979)
80
Assault - words + actions
Cullison v. Medley (1991)
81
False Imprisonment case
McCann v. Wal-Mart Stores (2000)
82
Must allege Fault Case
Van Camp v. McAfoos (1968)
83
Spring Gun Case
Katko v. Briney (1971)
84
Offensive Contact Case
Snyder v. Turk (1993)
85
Known Offense Battery Case
Cohen v. Smith (1995)
86
Car fuel ignition case (GDC)
Stewart v. Motts (1995)
87
Alzheimers Patient (GDC) Case
Creasy v. Rusk (2000)
88
Prior Negligence, (GDC)
Posas v. Horton (2010)
89
Greater Knowledge, Elevated Standard (GDC)
Hill v. Sparks (1976)
90
14yo Student Driver, Adult Duty of Cate
Stevens v. Veenstra (1997)
91
NPS - Landfill Case
O'Guin v. Bingham Cnty. (2005)
92
Cataracts - Diminished person (GDC)
Sherherd v. Gardner Wholesale, Inc. (1972)
93
Private Necessity Defense Case
Ploof v. Putnam, 81 Vt. 471 (1908)
94
Public Necessity Defense Case
Surocco v. Geary, 3 Cal. 69 (1853)
95
Transferred Intent Case
Baska v. Scherzer, 156 P.3d 617 (Kan. 2007)
96
Risk Utility / Breach Analysis
United States v. Carroll Towing Co., (1947)
97
Proving Conduct / Breach Analysis Case
Thoma v. Cracker Barrel Old Country Store, (Fla. Dist. Ct. App. 1995)
98
Custom is not the Standard Case
The T. J. Hooper, 60 F.2d 737 (2d Cir. 1932)
99
Must Show Harm Case
Right v. Breen, 890 A.2d 1287 (Conn. 2006)
100
Indivisible Injury Causation Case
Landers v. E. Tex. Salt Water Disposal Co. (Tex. 1952)
101
Substantial Factors Causation Case
Lasley v. Combined Transp., Inc., 261 P.3d 1215 (Or. 2011)
102
Scope of Risk (Proximate Cause) Case
Thompson v. Kaczinski, (Iowa 2009)
103
Foreseeability (Proximate Cause) Case
Palsgraf v. Long Island R. Co., (N.Y. 1928)
104
Statute of Limitations (defense)
Lincoln Elec. Co. v. McLemore, (Miss. 2010)
105
Duty to Protect from 3rd Persons Tests
1. Specific Harm 2. Prior Similar Incidents 3. Totality of Circumstances (Factor Test: Prior Incidents, Nature, Location) 4. Balancing Test (Foreseeability/gravity against Burden)
106
Attractive Nuisance
Bennett v. Stanley, 748 N.E.2d 41 (Ohio 2001)
107
Intervening Cause
Breaks the direct causal link (Still Negligence): 1. Third party actions 2. Acts of Nature
108
Superseding Cause
Washes away original negligence

Fall 2022 (3 decks)

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