Torts Flashcards Preview

• Traditional Rule: Highest duty of care owed
• Majority Rule: 
  • Common Carrier - Highest duty of care
  • Innkeepers - Ordinary negligence 
• Both have a Duty to Act Affirmatively with respect to customers (By Relationship exception)

• Traditional Rule:
  • Guest Statutes - limited liability to passengers
  • Guests and Friends - only if driver was reckless, grossly negligent, wanton, or willful misconduct
• Majority Rule:
  • Negligence standard is applied to all (reasonable person) 

Bailor: 

• If Paid - known or should have known defects must be disclosed 
• If Not Paid - known defects only

Bailee: 

• No benefit - gross negligence
• Sale benefit - extraordinary 
• Mutual benefit - reasonable care 

Reasonable person standard 

• Must warn or protect them from concealed, dangerous, artificial conditions.
• No duty to warn from natural conditions or artificial conditions that do not cause the risk of death 

Land possessors generally owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers

• Protected group: children

1. Artificial condition exists which owner knows or has reason to know that children are likely to trespass
2. Knows or has reason to know condition poses an unreasonable risk of death or serious bodily injury to chidlren 
3. Children do not discover or appreciate danger 
4. Low utility
5. Owner failed to excercise reasonable care 

• Traditional Rule: Duty to correct or warn of concealed dangers 
  • No duty to inspect for dangers
  • Must exercise reasonable care in conducting activities on the land 
• Majority Rule: Duty of reasonable care 

• Traditional/Modern Rule: Duty of reasonable care 
• Non-delegable duty 

Exception: When there is Recreational Land Use with a Fee charged, the land owner is liable for only willful, malicious acts

Landlord is liable for:

1. Injuries in common areas
2. Injuries from unwarned hidden dangers
3. Injuries from premises leased for public use
4. Injuries from a hazard the landlord has agreed to repair 

​Exception: Trees in urban areas 

Artificial Conditions: Must prevent unreasonable risk of harm to persons not on the premises. 

The seller has a duty to disclose to buyers concealed and unreasonably dangerous conditions known to the seller. 

The duty continues until the buyer has a reasonable opportunity to discover and remedy the defect. 

• Accident was of a kind that usually does not occur in absence of Negligence;
• Caused by an agent or instrumentality within defendant's exclusive control; and 
• Not plaintiff's fault

1. Medical Malpractice cases
2. Product Liability cases

• Injury would not have occured "but for" the defendant's negligence 

• Joint and Several Liability will apply
  • Both defendant are liable
  • Plaintiff can sue either defendent for entire harm

• Courts will shift the burden of proof to defendants and impose joint and several liability unless they can show which one of them caused the harm. 

all defendants will be joint and several liable. 

• When a physician negligently reduces the plaintiff's chance of survival (which must have already been less than 50%) the plaintiff may recover for lost chance of survival. 
• Damages: Award less (chance of survivial - lower chance of survival).

Is the plaintiff among class of victims who might foreseeably be injured? (scope of liability)

Defendant's liability is limited to those harms that result from the risk that made the defendant's conduct tortious. 

1. Is there a natural and continuous sequence
2. Was one a substantial factor
3. Was there a direct connection 
4. Was the cause likely to produce
5. Could the defendant have foreseen the harm
6. Was the cause too remote in time 

A factual cause of the plaintiff’s harm that contributes to her harm after the defendant’s tortious act has been completed

Any intervening cause that breaks the chain of proximate causation between the defendant’s tortious act and the plaintiff’s harm, thereby preventing the original defendant from being liable to the plaintiff.

• Unforeseeable superseding causes sever the connection of liability 
  • Medical malpractice is foreseeable
  • Negligent acts are foreseeable
  • Criminal acts are unforeseeable; unless duty owed to plaintiff 

• Actual harm must be proved (unlike intentional torts)
• Nominal damages are not available 
• Economic loss rule - only economic losses are not recoverable 
  • ​Unless - Non-economic damages have also been proven
• Attorney’s fees and interest from the date of damage are not recoverable
• Punitive Damages: if defendant acted willfully, recklessly, or with malice

Plaintiff must mitigate damages (e.g., treat a leg wound, which was caused by negligence).  

• Does not bar recovery, it just limits the recovery

1. Medical and Rehab exercises (past & future)
2. Pain and suffering (past & future)
3. Lost income plus reduction in future earning capacity 

1. Difference in market value before and after the injury
2. Personal Property: cost of repairs
3. Household Items: replacement value 

• Traditional Rule: payments to plaintiff from outside sources (medical insurance) are not credited against the liability of any tortfeasor 

• Modern Rule: payments to plaintiff by defendant's insurer are credited against the defendant's liability

• Plaintiff thinks they are
• about to suffer physical harm; and
• suffers emotional distress that
• manifests into bodily harm 

 A plaintiff must show that he was within the “zone of danger” of the threatened physical impact. 

Bystander can recover for distress if the person injured is:

• closely related to the bystander;
• bystander is present at scene; and 
• personally observed the accident 

In cases of misinforming someone that:

• a family member has died; or
• the negligent mishandling of a corpse.

1. Decedent's spouse, next of kin, or personal representative brings suit to recover losses suffered as a result of the decedent's death under actions created by state statutes. 
2. Damages:

• Loss of support
• Loss of income
• Loss of companionship/society 
• NO pain and suffering
• NO right of claim owed to creditors 

A suit brought by the representative of the decedent's estate on behalf of the decedent that died for claims the decedent herself would have had at the time of death. 

• Spouses: loss of consortium 
• Parent-Child: 
  • Injured child: loss of services
  • Dead child: loss of companionship 
  • Dead parent: loss of companionship (wrongful death action) 

• Based on failure to perform a contraceptive procedure or failure to diagnose a congenital defect
• Not permitted in most states

• Wrongful Birth: Failure to diagnose a defect in the unborn child
• Wrongful Pregnancy: Failure to perform a contraceptive procedure
• Permitted in most states

Employers are vicariously liable for the employee's torts if they occurred within the scope of employment (i.e., employee has right to control activities of the employee). 

• Detour - employer is liable 
• Frolic - employer is not liable (not within scope of employment)

Note: comes up most often in Delivery Driver context

No, an employer is not liable for torts committed by independent contractors. 

Analyze the following: 

• Terms of the Agreement
• Does the employer retain a right of control over the way the employee does that work? 

• Inherently dangerous activities
• Non-delegable duties
• Duty of an operator of premises to keep the premises safe for the public; and 
• Duty to comply with safety statutes 

Yes, when two or more parties have a common purpose and mutual right of control, they may be liable for each other's torts that are committed within the scope of the business purpose.

A person can be directly liable for negligently entrusting a vehicle, a gun, or a dangerous device to someone who is not in the position to care for it. 

A parent is not vicariously liable for their minor children's torts, unless:

1. Child commits a tort while acting as an agent for the parent;
2. State Statutes provide for the liability of parents for their children's specific acts (e.g., vandalism)
3. Parent approves application for child to get driver's license (State Statute) 

Yes, a parent is under a duty to exercise reasonable care to prevent a minor child from harming a third party, provided the parent:

• has the ability to control the child; and 
• knows or should know of the necessity for exercising such control 

When the buyer is a minor or was intoxicated at the time of sale, the Dram Shop statute will limit the liability of bars and bartenders for injuries caused when people drink too much and injury third-parties. 

• Theory of Liability: Negligence
• Type of Liability: Direct 

• Federal Government waives immunity in Tort Actions
• Exceptions:
  • Certain enumerated torts (assault, battery, false imprisonment, libel, slander, misrepresentation)
  • Discretionary Functions - planning or decision making 
  • Product Liability by contractors using gov't equipment
  • Traditional governmental activities (e.g., tax collection) 

• Immunity applies if performing discretionary function, as long as those are done without malice or an improper purpose
• No immunity for ministerial acts
• Westfall act: the remedy against the United States under the FTCA for torts committed by federal employees precludes any personal liability on the part of a federal employee under state tort law

• Traditional Rule: prevented one spouse for suing the other in a personal-injury action

• Modern Rule: eliminated in every jurisdiction 

• Traditional Rule: parents were immune

• Modern Rule: Courts allow liability but not for core parenting activities
  • Examples of when liability is possible:
    • automobile accidents
    • sexual abuse
    • intentional torts
    • dual capacity (physician is parent) 

• When two tortfeasors, both of whom are liable, can be liable for a single harm
• Plaintiff can collect all damages from either defendant (i.e., each defendant can be liable to plaintiff for entire amount of harm). 

• When the Tortious acts of two or more tortfeasors combine to produce one indivisible harm
• Two or more tortfeasors act in concert
• Alternative Causation applies 
• Res ipsa loquitor in medical malpractice cases 
• The employer and the employee are both held liable

If one of the tortfeasors has paid more than his fair share of the damages, then that tortfeasor can sue the other tortfeasor for contribution. 

• a party who has committed an intentional tort may not seek contribution from another tortfeasor

Each tortfeasor is only liable for his own share of the harm. 

• Shifts entire lawsuit from one party to the other 
• Generally applicable under vicarious liability 
• Available when:
  • Prior agreement between the parties
  • Equitable Indemnification
  • Significant additional harm caused by another tortfeasor; or
  • Strict Liability - seller to supplier indemnification 
• Comparative Negligence jurisdiction have banned indemnification 

Plaintiff's failure to exercise due care (i.e., contributory negligence) would eliminate any chance of recovery

If the defendant had a last clear chance to avoid the harm but failed to do so, then the plaintiff could still recover. 

• Helpless Plaintiff:
  • Defendant is liable if he knew or should of known that plaintiff was helpless 
• Inattentive Plaintiff
  • Defendant is liable only if he had actual knowledge of the peril

Plaintiff's damages are reduced by the extent to which the plaintiff contributed to the harm. 

• If Plaintiff is less at fault: recovery is reduced by percentage of fault 
• If Plaintiff is more at fault: plaintiff cannot recover
• Plaintiff and Defendant equally at fault: plaintiff can recover half of total damages
  • Minority Rule: plaintiff cannot recover 

• When another person's fault is "imputed" to the plaintiff to prevent or limit the plaintiff's recovery due to the other person's fault. 
• Does not apply when:
  • Spouse v. Third Party (contributory negligent: spouse)
  • Child v. Third Party (contributory negligent: parent)
  • Automobile passenger v. Third Party (contributory negligent: driver)
  • Automobile Owner v. Defendant Driver (contributory negligent: driver of owner's car)

Plaintiff has knowingly/willingly accepted a risk of harm.

• Contributory: total bar to recovery
• Comparative: reduces recovery 

• Common carriers
• Innkeepers
• Employers 

• For reckless, wanton, or gross negligence
• When there gross disparity of bargaining power between two parties
• When the party seeking to enforce the provision offers services of great important to the public (e.g., medical services); or
• When the provision is subject to contract defenses

• D - abnormally dangerous activities
• A - wild animals
• D - defective products 

• Whether it creates a foreseeable and highly significant risk of physical harm even when due care (reasonable care) is exercised
• Gravity of harm resulting from the activity
• Whether the activity is uncommon
• If activity has great value to community and appropriate to the location 

The defendant is strictly liable for only strictly liable for the harm that flows from the risk that made the activity abnormally dangerous 

• Defendant's liability can be cut-off by superseding causes

Strictly liable for dog bites if owner:

• Knows; or
• had reason to know 

of dog's dangerous propensities

A species or class is not by customer devoted to the service of mankind in the place where he is being kept. 

Yes, Strict liability applies to an injury caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal, in addition to injuries caused directly by the wild animal.

• Owners of any animal are strictly liable for reasonably foreseeable damage caused by animal's trespassing 

• Household pet exception: owner must know or have reason to know of trespass in a way that has a tendency to cause substantial harm.  

• Comparative Fault: reduce recovery
• Contributory Negligence: will not bar recovery 
• Assumption of Risk: if the plaintiff is aware of the dangerous propensity of an animal and taunts the animal, he may be prohibited from recovering. 

• Contributory Negligence is not a defense
• Comparative Negligence -
  • No reduction (majority)
  • Reduction (minority)
• Assumption of Risk is a complete bar on recovery 
• Party performing an essential public service is exempt from strict liability 

That the particular defendant was negligent, not just that the product was defective. 

• Seller (retailer)
• Distributor 
• Manufacturer 

Anyone in the business of selling (e.g., casual seller or auctioneer is not liable). 

• Product was defective
• Defect existed at time of defendant's control; and
• Defect caused the plaintiff's injury, when used in intended or reasonably foreseeable way 

When the product deviates from what the manufacturer intended. 

TEST: Does the product conform to the defendant's own specifications? 

• Consumer expectation test: product is defective in design if it is less safe than contemplated by ordinary consumer

• Risk-Utility test: product is defective in design if it could have been made safer by additional features 

• When the warning is important because you cannot change the design of the product without making the product ineffective
  • ex: prescription drugs

• Manufacturer does not have a duty to warn
• consumer directly, but satisfies the duty 
• by warning the doctor who prescribes the drug

Exception: manufacturer is aware that the drug will be given directly without personal intervention of doctors or health-care providers

• Personal injury
• Property damage
• Claims for purely economic losses are not recoverable and must be recovered under breach of warranty

Plaintiff's own negligence reduces recovery in strict products liability action 

• Comparative fault: Reduced 
• Contributory negligence: If the misuse is unforeseeable, recovery will be barred. 

• Not defense when plaintiff is negligent in failing to discover the defect 
• It is a defense when plaintiff unreasonably proceeds in face of a known defect 

• In a Contributory Neglience jurisidiction is a Complete bar to recovery. 
• In a Comparative Fault jurisdiction it is partial bar to proportionate degree of fault 

A substantial change is a superseding cause that cuts off liability

• Not conclusive evidence that the product is not defective
• Compliance with a federal safety standard may preempt a state tort claim if it is preempted. 

It is only relevant evidence, not a complete defense. (in some jurisdictions it is a complete defense). 

Manufacturers cannot disclaim liability for the implied warranty of merchantability as it runs to damages for personal injury in the case of consumer goods

• Defendant made a defamatory, false statement
• That is of or concerning the plaintiff
• Statement is published to a third party who understands the defamtory nature; and
• damaged the plaintiff's reputation 

Language that diminishes respect, esteem, or goodwill towards the plaintiff or deters others from associating with the plaintiff 

• A reasonable person must believe the defamatory language referred to this particular plaintiff and holds him up to scorn/ridicule in eyes of substantial number of respectable members of the community
• Defamatory statement re: a Group - member of a group can only bring an action if the group is so small that the matter can reasonably be understood to refer to that member

• Must be published to a third-party who understood the content 
• A person who repeats a defamatory statement may be liable for defamation
• Internet service providers are not publishers for purposes 

Opinions can be actionable as defamation if the person who states the opinion implies that they have objective facts to support it

• Public Official - Must show statement made with actual malice
• Public Figure - Must show statement made with actual malice
• Private Individual -
  • Matter of Public Concern - negligence 
  • Not a matter of Public Concern - no constitutional limit 

Defamation that is written, printed, or otherwise recorded in a permanent form.

• TV and radio broadcasts 
• Plaintiff must only prove general damages 

If the libel is not libelous on its face and requires additional facts to show why it is defamatory, then there are limits on the plaintiff's damages and must show special damages or slander per se. 

• Defamation by spoken word or gesture 
• Plaintiff must show:
  • Special damages or must show concrete harm
  • Slander per se 
    • Plaintiff committed a serious crime or crime of moral turpitude
    • Plaintiff is unfit for trade or business
    • Plaintiff has a loathsome disease
    • Plaintiff has committed severe sexual misconduct 

• Public Official or Public Figure - actual damages
• Private Individual:
  • Public Concern - actual damages 
  • Not Public Concern - general damages 

• Truth (absolute defense)
• Consent to defamation 
• Absolute privileges
• Conditional privileges 

• Absolute Privilege - for statements made:
  • in the course of judicial proceedings
  • in the course of legislative proceedings
  • between a husband and wife; and
  • in required publications by radio and TV 
• Conditional Privilege:
  • in the interest of the defendant 
  • in the interest of the recipient
  • affecting some important public interest

• I - Unreasonable Intrustion upon the plaintiff's private affairs
• F L - False light
• A - Misappropriation  of the right to publicity
• P - Public disclosure of private facts 

Plaintiff has the right to decide if somone can use their name, likeness, or identity for commercial purposes. 

Elements:

• Unauthorized appropriation
• for their own advantage
• without consent; and
• harm 

Defendant's intrusion upon the plaintiff's private affairs, solitude, or seclusion in a manner that is objectionable to a reasonable person

• Defendant made public facts about the plaintiff
• Plaintiff is in false light
• False light is highly offensive to a reasonable person 

Defendant gives publicity to a matter concerning the private life of another and the matter publicized is highly offensive to a reasonable person, and not of legitimate concern to the public 

• Must be about a material fact
• deceptive or misleading statements
• can arise through concealing a material fact
• no duty to disclose material facts, unless
  • ​fiduciary relationship 
  • other party is likely to be misled by statements 
  • defendant is aware of mistaken belief and custom suggests that disclosure should be made

• Defendant (usually an accounting firm or supplier of commercial info)
• provides false information
• as a result of negligent preparation of information

This cause of action is only available if there is either a:

• Contractual relationship between the parties or
• Plaintiff is a 3d party to be a member of the limited group for whose benefit the info is supplied and info was relied upon. 

• Defendant knew of contractual relationship between the plaintiff and 3d party
• defendant intentionally interfered with the contract
• resulting in breach; and
• breach caused damages. 

Exception: interference can be justified if motivated by considerations of health, public safety, or public morals 

• Plaintiff owns a valid trade secret that is not generally known;
• Plaintiff has taken reasonable precautions to protect it; and
• Defendant has taken the secrety by inappropriate means 

• Publication
• of a derogatory statement
• related to the quality of the plaintiff's business or products; 
• that damages the business relationships 

• Publication 
• of a false statement
• derogatory to the plaintiff's title
• with malice
• causing special damages 
• diminishes value in the eyes of third parties 

• Person intentionally and maliciously institutes or pursues legal action for an improper purpose without
• probable cause 
• and the action is dismissed in favor of the person against whom it was brought

Prosecutors enjoy absolute immunity to this tort

• Defendant has set in motion a legal procedure in proper form; but
• has abused it to achieve some ulterior motive 
• some willful act perpretrated in the use of the process which is not propert in the regular conduct of that proceeding; 
• conduct caused damages

Words coupled with conduct or other circumstances may be sufficient.  (Example: If the defendant sneaks up behind the plaintiff in a dark alley and utters in a menacing voice, “Your money or your life,” then an assault may be complete.). 

• Burden of proof for damage award: severe emotional distress beyond what a reasonable person could endure

• The defendant is not liable for unreasonable severe emotional distress experienced by hypersensitive plaintiffs, unless the defendant actual knew that the plaintiff was hypersensitive.