TORTS

Question 1

Types of Negligence tested on the BAR

Answer 1

(a) elements
(b) Negligence Per Se
(c) Res Ipsa

Question 2

Negligence Elements

Answer 2

1. duty
2. breach
3. causation
4. damages

Question 3

Negligence - Duty

Answer 3

Duty of Care
- Foreseeable Plaintiffs = in the zone of danger

REASONABLE PERSON STANDARD = objective standard aka “reasonably prudent person”

Question 4

Negligence - Duty EXCEPTIONS

Answer 4

PROFESSIONALS - heightened level of education / training (doctors, lawyers, etc.) = duty to act like other professionals in your community with the same background / edu. / training

CHILD - duty to act like other children of same age & maturity
Exception= child is engaged in adult activity –> then held to reasonable person standard

PARENT - duty of a parent to prevent a child from causing harm (if parent knew or should have known)

Question 5

Negligence - Types of Causation

Answer 5

Actual Cause = but for defendant’s action

Proximate Cause = Foreseeable

Need both

Question 6

Negligence - Breach

Answer 6

= Failed to comply with level of care

Question 7

Negligence - Damages

Answer 7

common law: actual, physical injury

Question 8

Negligence - Duty to Aid

Answer 8

No duty to aid or rescue
*if you begin to render aid, aid must be reasonable

**Unless Special Relationships (when 1 party is vulnerable): parent-child; innkeeper-guest; common carrier-passengers

Question 9

Negligence - Duty to People Entering your Land

Answer 9

Unknown Trespassers: NO duty of care

Known Trespassers / Licensee (social guests like friends & acquaint.): duty to warn of known (known to landowner) dangers

Invitee (business / commercial; school campus; office; supermarket; shopping mall): Duty to warn, clean-up, and make safe

Question 10

Intervening Cause

Answer 10

= A separate act that does NOT cut off liability = foreseeable

if foreseeable, defendant will pay for all damages

PRESUMPTION: EVERYTHING THEY SAID IS FORESEEABLE, UNLESS THE QUESTION TELLS YOU OTHERWISE

Question 11

Superseding Cause

Answer 11

= a separate act so unforeseeable it DOES cut off liability
- Defendant won’t be liable for subsequent damages

Examples:
1. acts of God
2. intentional torts
3. criminal acts
4. anything the question says is unforeseeable

Question 12

Negligence Per Se

Answer 12

1. Violation of a statute or ordinance
2. Plaintiff is part of protected CLASS of people statute is trying to protect
3. Harm caused is the type statute was designed to protect

Question 13

Negligence - Res Ipsa

Answer 13

1. Act which would not occur absent negligence
2. Defendant has control of property = inference of negligence
   - Defendant has exclusive control – nobody else could have done it

*Look for Motion for Directed Verdict or Summary Judgment
** Answer choice includes language of what a JURY must find, infer, conclude, etc.

Question 14

Strict Liability - 2 types

Answer 14

1. Wild Animals
2. Abnormally Dangerous Activity

Question 15

Strict Liability - Wild Animals

Answer 15

• Domestic Animals: NOT strict liability
• if has dangerous propensities, considered a wild animal and owner liable for strict liability
• Wild Animals: always wild, can’t be domesticated
  *any injury that is type of injury that occurs when you encounter a wild animal
  **animal does NOT have to physically touch you

Question 16

Strict Liability - Abnormally Dangerous Activity

Answer 16

Blasting, explosives … dangerous, hazardous, etc.; chemicals

Question 17

Defense to either form of Strict Liability: Assumption of the Risk

Answer 17

know & appreciate (understand) the danger of the risk, and you do it anyway

knowledge alone is not enough

NEVER assume there was assumption of risk

NEVER PICK AN ANSWER THAT DISCUSSES A DEFENSE OR EXCEPTION TO THE RULE UNLESS YOU’RE SURE THAT IS WHAT THEY ARE TALKING ABOUT

Question 18

Strict Product Liability

Answer 18

(a) Product defective (broken/doesn’t work) when it left factory, sold by seller engaged in business of selling product (commercial seller);
(b) sold to foreseeable user (can also be foreseeable of purchaser);
(c) who used it in manner it was intended

• can sue anyone in chain

*Question will tell you who is NOT a foreseeable user

Question 19

Inadequate Warning

Answer 19

Aka Failure to Warn
Another version of strict product liability

Question 20

Product Liability - Negligence

Answer 20

Someone in chain of selling (i.e. Retailer, manufacturer, etc.) failed to do something they were supposed to do

Question 21

Products Liability - Warranty

Answer 21

There was a label, sticker, something in writing promising how product would work

• should be obvious
• NEVER implied

Question 22

Private Nuisance

Answer 22

Unreasonable interference with the USE AND ENJOYMENT of someone’s property

• must be unreasonable to an OBJECTIVE person (reasonable person)
• one landowner v. another landowner

Question 23

Public Nuisance

Answer 23

Entire community, brought by Public Official, look for Special Damages

• Affecting the community / public at large
• If private Plaintiffs are suing based on public nuisance, must talk about special or unique damages

Question 24

Contributory Negligence

Answer 24

If Plaintiff was responsible for any %, Plaintiff cannot recover

Question 25

Pure Comparative Fault

Answer 25

if plaintiff was negligent, damages reduced by plaintiff's % of fault

Question 26

Moderate / Modified Comparative

Answer 26

if plaintiff is up to 50% liable, will recover but damages reduced by plaintiff's % of fault 51% or more = plaintiff cannot recover

Question 27

joint & several liability rule

Answer 27

plaintiff may recover 100% of their damages from any single defendant

Question 28

contribution

Answer 28

one defendant who pays may seek contribution from their co-defendant

Question 29

vicarious liability rule

Answer 29

employer will be liable for the negligent acts of their employees as long as employee was acting in the scope of employment

Question 30

Independent Contractors rule

Answer 30

someone who hires a contractor & contractor is liable then person who hired them is not liable

Question 31

independent contractors exception

Answer 31

person who hired them is liable if: - the work being done is abnormally dangerous OR - the work being done is a non-delegable duty (work being done on behalf of or for the safety of the public)