torts Flashcards
(29 cards)
What must a plaintiff show in a negligence action?
- Defendant owed a duty to conform conduct to a standard to avoid unreasonable risk of harm
- Defendant’s conduct fell below the applicable standard of care
- Defendant’s conduct was both the cause in fact and proximate cause of plaintiff’s injuries.
What standard of care does a child owe?
The duty of care of a hypothetical child of similar age, intelligence, and experience
Applies when acting under similar circumstances.
What is the exception to the child’s standard of care in adult activities?
If the child is engaged in adult activity, they are held to the standard of a reasonably prudent adult.
What is the tender-years doctrine?
A child less than seven years of age cannot be found negligent.
What does the standard of care owed in premises liability depend on?
The legal status of the plaintiff.
Define undiscovered trespasser.
One who comes onto the land without permission or privilege and who the premises possessor does not know about.
What is the rule for undiscovered trespassers?
Undiscovered trespassers are not owed any duty of care.
Define discovered trespasser.
A trespasser that the premises possessor knows or should know of.
What is the rule for discovered trespassers?
The possessor must warn or make safe any unreasonably dangerous concealed artificial conditions that the landowner knows of.
What are the 4 elements of the attractive nuisance doctrine? Cruue
- Premises possessor knows children are likely to trespass
2 Children do not discover the condition or realize the risk - Possessor fails to exercise reasonable care to protect children.
- Burden of eliminating the danger is slight compared to the risk involved
- Condition involves unreasonable risk of death or serious bodily harm
Define licensee.
A
1. social guest
2. who has permission to enter the land
3. but does not confer an economic benefit on the possessor.
What is the rule for licensees?
The landowner must warn or make safe all concealed dangers that the landowner knows of.
Define invitee.
Those that enter to confer an economic benefit or enter land open to the public.
What is the rule for invitees?
The premises possessor must warn or make safe all dangers that the landowner knows or should know of and has a duty to inspect.
What is negligence per se?
A doctrine where a plaintiff can sue if they show:
1. Defendant violated a statute without excuse
2. Plaintiff was in the class the statute aimed to protect
3. Plaintiff received the injury the statute aimed to prevent.
What is res ipsa loquitur?
“the thing speaks for itself” in Latin, is a legal doctrine that allows a plaintiff to prove negligence by circumstantial evidence when direct evidence is lacking, particularly in cases where the accident wouldn’t normally occur without negligence.
allows a plaintiff to infer negligence from the nature of an accident or
This doctrine is applicable when:
1.The accident is the type that wouldn’t typically occur without negligence.
- The instrumentality causing the accident was under the exclusive control of the defendant.
- The plaintiff didn’t contribute to the accident
What is the eggshell-skull rule?
A defendant takes his victim as he finds him; a plaintiff with an eggshell skull is entitled to recover fully for injuries.
What is negligent infliction of emotional distress?
- Applicable when the defendant is negligent and the plaintiff has not sustained actual physical trauma,
- requiring a physical manifestation of emotional distress.
- Foreseeability Rule: The defendant’s actions were reasonably foreseeable to cause emotional distress in the plaintiff.
- Zone of Danger Rule: The plaintiff was at immediate risk of physical harm from the defendant’s negligent act.
- Impact Rule: (Less common) There was some physical contact, however minor, between the defendant’s negligence and the plaintiff.
4. Bystander Recovery: In many jurisdictions, close family members who witness or arrive soon after an accident involving a loved one can potentially recover for emotional distress caused by witnessing the event.
5. Physical Manifestation of Distress: Some states require proof that the emotional distress resulted in observable physical symptoms, like loss of appetite or sleep disturbances.
What is comparative negligence?
is a legal doctrine that allows a plaintiff (the injured party) to recover damages, even if they were partially at fault for the accident, by reducing the amount of compensation based on their degree of negligence.
What is contributory negligence?
A doctrine stating if the jury finds the plaintiff’s negligence contributed to injuries, the plaintiff cannot recover.
What two intentional torts are tested on the MEE?
Battery and false imprisonment.
Define battery.
An act with intent to cause harmful or offensive contact, resulting in such contact.
Define false imprisonment.
An act with** intent** to** confine** a person to a** bounded area,** with actual confinement occurring, and the plaintiff** knowing **of or being **hurt **by the confinement.
What is consent in relation to intentional torts?
A defense that can be express or implied.
