GOAT > Torts > Flashcards

Torts Flashcards

(61 cards)

Start Studying
1
Q

Intentional torts require acting with:

A

Purpose or substantial certainty of the outcome

Baseball game example

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Who determines whether a duty exists in negligence?

A

Judge

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

exception to duty to aid: creation of risk

A

A d has an obligation to take affirmative steps if they created the danger, even if innocently

If you acted innocently originally…you are STILL liable for additional harm you created by not taking affirmative steps to minimize the danger or warn others of the danger you created

If you created the harm innocently — duty to minimize harm or warn

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Exception to duty to aid: Creating Risk of Injury from a third person

A

You have a duty to reframe from taking steps that create risks of danger to third parties

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Special relationships likely to be tested under duty to aid exception:

A

Therapist/Psychiatrist: If there is a threat to a specific NAMED third person

the therapist/psychiatrist has to warn that third person

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Farewell v Keaton Duty to Aid Exception Hypo

A

(1) common social undertaking that give rise to a duty to protect each other

Friend was beaten up and the other did not take him to the hospital

NO LIABILITY FOR SOCIAL HOSTS

Harper v Herman

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

2 situations for duty to aid exception involving alcohol:

A

(1) The cool dad situation
- Host who serves to minors and the minors get into a car wreck

(2) Vendors (bars or clubs) who sell to those who are obviously intoxicated or minors AND

they hurt someone

Each of these people will be find liable to third party who was injured

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Exception to duty to aid rule: Special relationships

A

The d has a duty to use reasonable care to REDUCE or PROTECT the P because of the relationship the P has to D

(1) Parent - Child

(2) Common carrier - Passenger

(3) Jailer - inmate

(4) Hotel management - hotel guest

(5) Landlord - tenant

(6) Doctor - patient

(7) School - pupil

(8) Employer - Employee

(9) Proprietor - Customer

(10) Psychiatrist or therapist - 3rd party

(11) Fellow travelers and roommates

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Duty based on D’s relationship to a dangerous person: Parent - Child

A

If a parent knows their child is dangerous and can foresee them committing harm…but they can’t reasonably force the specific type of harm or exact time of it..NO LIABILITY ON PARENT

Elements

(1) Specific propensity for danger AND
(2) Imminently foreseeable harm

REMEMBER – whenever a parent makes weapons available or entrusts their child with a firearm .. liability will follow if harm is cause

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

negligent entrustment

A

A d can be held liable if he or she leaves an instrument with a person who the D knows or should know will use it in an unreasonably risky manner

Example —- Car

A D can be liable if he knows the person driving is:

  1. drunk
  2. has a revoked or suspended license
  3. has never driven a car before OR
  4. Has a history of drinking and driving

AND they injure a third party

BE CAREFUL FOR ANY SITUATION WHERE someone gives you (1) a gun (2) an automobile to someone who is likely to use it in a dangerous way because they:

  1. Physically or mental limited
  2. Very young or inexperienced
  3. are drunk
  4. Have character, habits that would lead someone to believe they’d do something crazy with the car or gun

INJURY MUST THE TYPE OF HARM THAT MADE THE ENTRUSTEMENT RISKY TO BEGINW

You have to own what you are giving the crazy person

Remember cars vs bull dozers

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Duty owed: Bailments

A

You check your coat at a restaurant, give your keys to a valet, or deport money in a safe deposit box

This gives rise to a duty

Bailee has an obligation to use reasonable care to take care of your property

HOWEVER

You may owe an extraordinary care if I give you something for your benefit —- my special book. Don’t mess it up

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Duty owed: Does the government have a duty to citizens?

A

Generally they are immune.

Ex: Judge ruling in a criminal case, health inspector shutting down a restaurant for kitchen violations, a zoning boards decision on a new garage, or decisions by police to arrest or not arrest someone

HOWEVER – they are not immune when they are acting in a proprietary capacity like operating a business

Official actions tied to policy making or public duty = immune from tort liability

Proprietary actions = gov acts in a commercial capacity = more likely to face liability

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Foreseeable plaintiff exception: The rescuer

A

If you endanger YOURSELF only and someone tries to rescue you… you will be liable for anyone who tries to rescue you and gets hurt

Exception: Firefighters rule

Firefighters assume the risk when they rescue you EXCEPT

When they are not engaged in their job bc there is no inherent risk

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Foreseeable plaintiff exception: Unborn Children

A

Causes of action

(1) Wrongful birth. The parents are saying the D was negligent in failing to diagnose or inform them of genetic risks. Had they KNOWN - they would have avoided the pregnancy

Who sues? Parents

Damages? Only extraordinary costs of caring for a child with special needs - not the total cost of raising the child; the extra expenses

(2) Wrongful life

The child is suffering birth defects and painful disease. The doctor should have never allowed them to be born

Who sues? Child

Damages? Almost all courts reject this cause of action

(3) Wrongful pregnancy

A physician botched a sterilization procedure. Unintended pregnancy

Who sues? Parent

Damages? Cost of sterilization procedure itself, related pregnancy expenses — NOT cost of raising child

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Emergency Doctrine: Negligence

A

Act like a reasonable person confronting the same emergency

Emergency must have been unforeseeable

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Can you lower your negligence standard to something less than reasonable person if you are insane, drunk, or stupid?

A

NO - always reasonable person UNLESS

sudden onset of insanity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Grandpa with Alzheimers attacks caretaker. Negligent?

A

No. Trick question

hiring the caretaker was being reasonable bc he has Alzheimers and wants to protect himself

Duty runs one way

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Micheal phelps dilemma trick

A

If you have superior knowledge … you will be held to that standard

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Licensed professionals and reasonable person standard

A

People with licenses are expected to possess the knowledge and skill of the average member in good standing in their profession to a similar community

The care of a reasonable person under the circumstances to avoid known or foreseeable harm

REMEMBER rural doctor

AND

SPECIALISTS are held to a NATIONAL STANDARD - not a local

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Physicians duty to obtain informed consent

A

Physicians have a duty to share adequate information to their patients so they can make an informed decision about whether to undergo a procedure or not

A physician can be liable for battery if (1) the patient would not have gone through with the procedure had the risks been disclosed and (2) an injury actually occurred

EXCEPTIONS: when a doc does not have to disclose a risk
1. If the patient declines/waives the info
2. If the patient is unconscious or unable to give consent
3. If the risk is commonly known
4. Objective evidence that the disclosure of risks will actually be harmful to the patient

REMEMBER YOU NEED AN INJURY

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Can children under 5 commit a tort?

A

YES intentional tort

Example; Child pulling chair

Children 5-18
- standard? Basically they have to do their best
- You will lose suing a kid for negligence

A 15 yr old with the same mental and emotional capacity as an adult will be expected to act like a reasonable adult person

Gifted children? Held to that standard

Exception to child rule?

Operating a motorized vehicle - they will be held to an adult standard of care

ANYTHING THAT REQUIRES ADULT SKILLS
—- Firearm is not necessarily an adult activity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Standard of care for common carriers

A

They owe a duty to transport, boarding, exiting, and letting you off the carrier at a safe speed — HEIGHTENED DUTY

If you are disabled – they should help you on the carrier

NOT PRIVATE CARRIERS THAT CAN CHOSE WHO ARE PASSENGERS - common carriers take everyone
—- not amusement park rides or ambulances

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

HYPO: is a common carrier liable if the common carrier drops off a passenger in a high crime area?

A

Hinges on foreseeability

Did they know they are discharging someone against their will in an unsafe place?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Standard of care for innkeepers

A

Higher duty to paying guests

Must warn them of any dangerous condition OR a dangerous condition they should have known

Duty of care to warn of broken steps, loose railings

They even have a duty to warn of foreseeable theft and crime in hotel/motel parking lots

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Industry Custom: Breach
Failing to follow an industry custom is never conclusive evidence of negligence IT IS ONE FACTOR IN BREACH TRICK: Industry custom that is unreasonable? they disregard it and will probably find you liable
26
Industry custom and tempered glass example
A landlord installed regular glass showers in apartment Tenant taking a shower slammed into the glass and hurt himself Tenant said landlord was automatically negligent for not following the industry custom of using tempered glass Court said not using tempered glass was only some evidence towards negligence
27
Negligence per se has 3 parts
(1) must be a safety statute (2) person who got hurt must be within the class of persons the statute was designed to protect (3) statute must be intended to protect against the type of accident that occurred Violation of statute DOES NOT prove causation and damages It proves duty
28
Negligence per se examples:
(1) statute that doesn't allow poisonous fluids anywhere in restaurant kitchens it was enacted to prevent people accidentally consuming poison and getting hurt a line cook misunderstands directions and brings poison into the restaurant Poison falls on ground and massive explosion Negligence per se? NO
29
Excuses for negligence per se
(1) when violation of the statute is safer than compliance (2) statutory compliance is impossible (3) the actor exercised reasonable care when attempting to comply with the statute or couldn't have reasonably figured out they were violating it
30
Licensing and negligence per se
It is not negligence per se if you get into an accident when you failed to renew your license
31
What is the res ipsa test?
(1) the accident must be a type that does not normally occur unless there has been negligence Look for an object that should be still but escapes, moves, or explodes - grenade blows up early - a bottle explodes in the plaintiff's hand - a high voltage power line falls for no reason - P is struck by falling object - Cattle or goats escaping from their pens (2) OTHER causes must be eliminated "All other causes were unlikely" (3) exclusive control If all three elements are present...answer choice will be: "judge will tell the jury they are allowed to infer negligence BUT they don't have to" REMEMBER --- you can not recover for the crazy acts after the accident - only the damage from D's negligence
32
Medical Res Ipsa Elements
(1) The p receives unusual injury that wouldn't happen without negligence (2) while the p is under control of D (3) the P is unconscious or unable to explain the injury THEN the burden shifts to Ds to prove they weren't negligence REMEMBER sponge with doctors and nurses example * They have extended this doctrine to daycares too
33
Causation standard
(1) Factual and (2) Proximate "But for the D's conduct, the p's injury would not have occurred" Isolate the conduct then ask BUT FOR
34
What is the standard of proof for causation in a negligence suit?
Preponderance of the evidence
35
Substantial factor test
when more than on cause for damage in a negligence action Plaintiff shows the D's act was a SUBSTANTIAL cause that operates alongside other causes in producing injury Standard for substantial cause: Both forces have to be strong enough on their own to commit the tort
36
Burden shifting doctrine: alternative liability
Who shot the other? They both shot at the same time Allows the jury to find 2 defendants liable when each one was negligent and EITHER could have caused the plaintiff's injuries DOEES NOT MERGE LIKE SUBSTANTIAL CAUSE Elements: (1) simultaneous negligent actors + (2) unascertainable cause of injury (3) ALL people were acting negligent and one of them caused the injury NOW -----> BURDEN SHIFTS TO Ds TO EXNORATE THEMSELVES If you can't exonerate yourself ----> joint and several liability BOTH MUST BE NEGLIGENT You cannot use alternative liability if you can join all tortfeasors
37
Market share liability
Exception to but for causation (1) the joined defendants represent a substantial share of the market (2) join the majority of the market that hurt you (3)Inability to identify the specific manufacture (4) all named defendants are potential tortfeasors Each defendant found guilty will be liable for the percentage of damages which matches their market share at the time of exposure
38
Joint enterprise doctrine
Allows the jury to impute one defendant's tortious conduct to all that are engaged in a common enterprise or protect AND who have made explicit or implied agreement to commit tortious acts through enterprise Think of the club example
39
What is a joint feasor?
If two or more individuals who: 1. Act in concert to commit a tort and cause a single indivisible injury 2. Act independently of each other but still cause a single indivisble injury 3. Share responsibility for a tortious indivisible injury through vicarious liability They are joint and severally liable to the P Every single D needs to be acting tortiously Applies in alternative causation and Medical Res Ipsa
40
Joint and several liability MBE hypos:
(1) Acting in concert - Flame thrower, shooting bullet at same time, drag race) (2) Acting independently - Cars crash into each other and injure pedestrian, homeless person benzene + fire, pollution of the river at different times (3) Vicarious Liability - Restaurant example
41
Severally liable (NOT JOINTLY)
Injury is apportionable
42
pure comparative negligence
Apportioning fault based on degree of liability among ALL parties in the lawsuit Looks at comparative fault of P
43
Modified comparative fault
The P is barred from recovering if their fault is greater than 50%
44
Contributory negligence
P is barred if they even 1% at fault
45
What is the sexual obsession the bar has?
Even though we assign compartative percentages to each defendant, we can still recover 100% from either of them
46
Eggshell plaintiffs
The D takes the P as they find them The harm you cause a P doesn't need to be foreseeable and neither does the extent of damages
47
Two tricks on eggshell Ps that could appear on MBE:
(1) The grandma trick You hit a fragile grandma. You are liabile for all her injuries. You're unlucky she has pre existing conditions (2) Sabrina Carpenter The extent of damages does not need to be foreseeable You don't have to foresee HOW much money you will pay - just force your actions would cause damage
48
Avoidable consequences
Whether the plaintiff acted reasonably to limit their damages after the injury occurred
49
Compensatory Damages
Intended to make the plaintiff whole again, by awarding an amount that please the P in the position they would have been if the tort had not occurred Types 1. Special or Economic Damages: Out of pocket losses such as medical expenses, lost wages, and property damage Quantifiable 2. General (Non-economic) damages: Intangible harms such as pain and suffering, emotional distress, and loss of enjoyment of life
50
Punitive damages
P can never recover punitive damages for ordinary negligence - only for intentional torts or reckless conduct Punitive damages are awarded at the discretion of the jury
51
Collateral source rule
P's damages will NOT be reduced just because they received benefits from other sources (like insurance)
52
Damage to property award standard:
Reasonable cost of repair OR Fair market value (if the property is destroyed or nearly destroyed)
53
What damage award can you not receive in a tort/personal injury case?
Attorney's fees
54
The medical loss of chance doctrine
When a P is already injured or suck and their chance of recovery or survival is reduced by the negligence of the P Some states require the chance of survival to be more than 50%
55
Scenarios under Medical Loss of Chance Doctrine
(1) Below 50%- No recovery Patient has 40 % chance of survival. Doctor is negligence, patient's condition worsens, they die Since their chance of survival was below 50%, the court MAY deny recovery under the traditional causation rule (more likely than not) (2) Above 50% - Full recovery Same facts as above, but chance of survival is 70% This is just medical malpractice (3) Partial recovery Patient has 40% chance of survival. Due to doctors negligence, their chance drops by 10%, and they die (now they have a 30%) Under loss of chance, doctors negligence deprived the patient of a meaningful survival opportunity Doctor is liable for the 30% (4) Doctors negligence worsens the odds but he patient survives 80% chance of survival reduced to 50% bc of doctors negligence Courts who use loss of chance might award damages based on the diminished probably of full recovery 30% recovery
56
Proximate cause
Foreseeability Limiting the chain of liability
57
Proximate cause: Extent of damages
You do not have to foresee how much money you will pay. This is called the "extent of harm" Type of Harm: (1) Ultimate harm must match the risk - not the manner in which the harm occurs AKA "natural and probable consequence of..." Type of harm that does not match the risk: Speeding and tree scenario Kersone and explosion example Bus, train tracks, and goat example
58
Conditions coming to rest HYPOS
(1) Truck and Cadillac If an hour goes by and you start directing traffic like a weirdo after a guy runs you off the road, and then you get hit....OG truck driver still liable (2) Gas tanker and tripping If your gas tanker gets hit and then you stub your toe on some equipment form the accident inspector five hours later ... og negligence has come to rest
59
Intervening causes: The four horsemen of foreseeability
(1) Rescuer (2) Intervening medical negligence Doctor will still remain liable for medical malpractice but they'll be jointly and severally liable with YOU (3) Subsequent Injuries from a weekend condition If the P's initial injury from D's negligence puts P in a compromised state, which leads to further harm... OG D still liable Worsening medical conditions or re-injuries attributable to the original weakened condition are considered FORESEEABLE Ex: You hurt someone and now they are on crutches. They fall on the crutches. You are liable (4) Efforts to Escape or Reaction Forces Victim taking reasonable measures to escape harm are FORESEEABLE
60
Superseding causes
Invervening event that is so extraordinary or unforeseeable that it breaks the chain of causation between the D's initial negligence and the ultimate harm to the P
61
Scenarios bar exam tests on for superseding causes:
Causes that are not foreseeable: (1) Acts of God (2) Intentional or Criminal Conduct by 3rd parties (3) Gross negligence - Think of surgery example or ambulance example

GOAT (8 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions