Torts Flashcards
(51 cards)
What are the elements of Negligence?
In a negligence action, the P must show that the D:
1) owed a duty to the plaintiff
2) breached that duty
3) actually caused the P’s injuries
4) Proximately caused the P’s injuries
5) that damages exist
What is duty?
Duty is a legal obligation to act in a certain way. The analysis goes: Is there a duty or not? If yes, what is the nature of that duty aka standard of care?
Typically the standard is reasonable care.
To Whom is the duty owed and what is that duty generally?
A duty of care is generally owed to all who may foreseeably be injured by the D’s conduct, where a foreseeable plaintiff is one within the zone of foreseeable harm. The standard of care under that duty is generally to act as a reasonably prudent person under the circumstances.
Is there a duty to act affirmatively?
There is generally no duty to act affirmatively/help, unless:
1) you assume the duty by undertaking to rescue another. Your duty is thus a duty of reasonable care in the performance of that rescue.
2) you place the P in harm’s way
3) a person with ability and actual authority to control another has a duty to exercise reasonable control
4) if you have a special relationship to the P (ala innkeeper guest)
What is the Majority (Cardozo) Scope of Duty
A duty is owed to foreseeable P’s where foreseeable P’s are members of the class of persons who might be foreseeably harmed by the D’s conduct
What is the Minority (Andrews) Scope of Duty
A duty is owed to foreseeable P’s, such that any time the D’s conduct could harm someone, there is a duty to everyone and whether this particular P was foreseeable is a proximate cause issue.
Is there a duty to unforeseeable Ps?
Nope
What is the Standard of Care when a duty is owed?
The General standard of care is that of a reasonably prudent person under the circumstances.
This is an objective standard.
What is the standard of care for a D with special mental/emotional characteristics?
-Reasonably prudent person under the circumstances
D’s with special mental/emotional characteristics are subject to the same standard as everyone else
What is the standard of care for a D with special physical characteristics?
Particular physical characteristics are taken into acct.
D is compared w/ reasonably prudent person w/ like characteristics
Does intoxication effect the standard of care?
No, unless it was involuntary.
What is the standard of care for children?
Children are compared to reasonable children of similar age, intelligence, exp.
Unless engaged in high risk adult activity (driving) – held to the reasonably prudent person standard then.
What is the standard of care for common carriers and innkeepers?
Traditionally, both were held to the highest duty of care consistent w/ practical operation of business.
Now, common carriers are still held to this standard, but innkeepers just responsible for ordinary negligence.
What is the standard of care for auto drivers
Drivers were traditionally liable for g ross negligence and wanton or willful misconduct
Now most jurisdictions apply general duty of reasonable care
What is the standard of care for bailors and bailees
Bailor must warn a gratuitous bailee of known dangerous conditions
–If bailor receives sole benefit then bailee has lesser duty
–If bailee receives a benefit, then he has a higher duty of care.
What is an invitee
Invitees are those on land for a material or economic purpose. They include business visitors–someone invited to confer an economic benefit on land possessor–and public invitees–somone invited on land that is open to the public
What duties generally do possessors of land owe?
Possessors of land owe variable duties to those on their land, depending on the status of the plaintiff.
What duty does a land possessor owe an invitee?
Property owner has a non-delegable duty to:
- Inspect area where invitees have access;
- For non-obvious, unknown dangers;
- Warn the invitee of the dangers; and
- Take reasonable steps to protect them from the dangers
What is a Licensee
Person who enters onto D’s land with D’s express or implied permission (e.g. friends, social guests, emergency personnel)
What duty does a land possessor owe a licensee?
Property owner must:
- Exercise reasonable care on the property;
- Warn or correct concealed dangers;
- That are known or should be known;
- In areas where P has access as a licensee
⚠️ Note: No duty to inspect for dangers
What duty does a landlord owe its tenants?
- Reasonably inspect and keep safe all common areas; and
- Warn tenants of hidden dangers
What duty is owed to discovered or foreseeable tresspassers?
Property owner must correct or warn of dangerous, artificial conditions on land that could cause death or serious bodily harm
⚠️ There is no duty to warn about natural conditions
What duty is owed to undiscovered trespassers
Refrain from wanton, willful, reckless misconduct
What is the attractive nuisance doctrine
Under the “attractive nuisance” doctrine, a land possessor may be liable for injuries to children trespassing on the land if the children, because of their youth, do not discover or cannot appreciate the danger presented by a dangerous artificial condition where the owner has reason to know children are likely to trespass.
Mitigating elements include
1) the utility of the condition compared to the risk of injury
2) And the Possessor’s exercise of reasonable care.
