Torts Flashcards
(46 cards)
Negligence Defined
The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation.
Elements of Negligence
- Duty
- Breach of Duty
- Causation (proximate and actual)
- Damages
Defending Against a Negligence Action, The Defendant’s Best Defense
Negating one of the elements of negligence.
Go in order.
Duty
A legal obligation that is owed or due to another and that needs to be satisfied; an obligation for which somebody else has a corresponding right.
Duty of Care
Generally, a person owes a “duty of care” to those around him or her (i.e., a duty to act as a reasonable person).
Determined by an objective standard.
Evaluating Conduct
Would a reasonable person of ordinary prudence in the defendant’s position act as the defendant did?
No Affirmative Duty to Act
UNLESS: (1) Defendant caused the original harm to the victim; (2) Defendant has a special duty; (3) Defendant has assumed a duty by affirmatively acting to aid a victim, thereby undertaking a duty to act reasonably.
Parent-Child Duty
Parents have a number of affirmative duties based on their special relationship to their minor children.
This includes the duty to exercise reasonable care in the control of the parent’s minor children.
A parent may be liable for her own negligence in failing to control the child.
Duty is Specific
A professional who is retained solely for the purpose of doing one thing – only has a duty to exercise skill in that one thing, commensurate with her professional training and standards.
Medical Professional Duty
Courts do not impose a duty on medical professionals to warn third parties when a patient is a danger to himself and not others and will deny liability to family members who suffered emotionally in the event that the patient commits suicide.
Circumstances Matter
Circumstances matter when evaluating a defendant’s actions and the law typically says that a defendant’s physical characteristics are part of the circumstances.
What characteristics of the defendant become “a part of” the reasonable person?
- Defendant is a landowner
- If defendant is a child, the child’s age (unless doing an “adult activity” such as driving a car)
- Physical disabilities
- Defendant acted during an emergency
What characteristics of the defendant do not become “a part of” the reasonable person?
- Mental characteristics (e.g. if defendant is of below average intelligence, he can’t defend his actions based on this)
- Intoxication
Defendant’s Duty Limitations
A defendant’s duty is limited to foreseeable plaintiffs, and to protect those foreseeable plaintiffs against foreseeable harms only.
Unknown Trespasser
-Defendant Landowner-
No duty owed.
Known Trespasser
-Defendant Landowner-
Duty to warn or make safe from artificial conditions known to pose a serious risk of harm.
Licensee
-Defendant Landowner-
Enters the land with the possessor’s express or implied consent for the licensee’s own personal purpose, (social).
Duty to warn of (or make certain) any known dangerous condition that licensee is unlikely to discover.
Invitee
-Defendant Landowner-
Person enters the land open to general public (business).
General duty to use reasonable care and ordinary care to keep property safe and inspect.
Children Are Subject to a Reasonable Child Standard of Care.
What a “reasonable” child of the same age, training, maturity, experience, and intelligence would do.
Children Engaged in an Adult Activity
Are subject to the adult reasonably prudent person standard.
Custom
Industry custom is relevant in a negligence action but is not determinative.
Danger Invites Rescue Doctrine
-Foreseeable Plaintiff ~ Includes the Rescuer-
An existing danger invites a rescue. A tortfeasor who has placed herself or another in danger is liable for the injuries suffered by someone who comes to the rescue of the endangered person.
A rescue is deemed foreseeable and thus injuries arising therefrom are deemed proximately caused by the original wrongdoer.
Firefighter’s Rule
-Foreseeable Plaintiff ~ Does Not Include Professional Whose Job Involves Peril-
The “firefighter’s rule” bars from recovery a firefighter or police officer who was injured by a peril that he was employed to confront.
If the peril was created through negligence or caused by a strict liability activity, the officer generally still has no claim against the landowner (the defendant).
Client Resources
Whether a client has the resources to satisfy an adverse judgment is irrelevant to the judgment itself and should not be a subject of argument on the issue of liability in a case, although the client’s financial situation might affect a lawyer’s decision to take on the case.
