Torts Flashcards

Question

Negligence - Duty - Standard of Care - List of 6 Alternative Scenarios

Answer 1

1. Children 2. Professionals (malpractice) 3. Duties to Act Affirmatively 4. Premises Liability 5. Statutes 6. NIED

Answer 2

1. Children must exercise the care of a child of similar age, experience, and intelligence a. Subjective standard different for every child encountered 2. Exception: Children under age 5 owe no duty of care to the world 3. Exception: If a child is engaged in an adult activity (operating a motor vehicle) they will be held to the normal standard of the reasonably prudent person

Answer 3

1. Professionals owe patients or clients a duty to exercise the skill and knowledge normally possessed by a member of that profession in good standing. The modern trend is to use the national custom, not community based. 2. Special Duty for Mental Health Professionals: If a patient makes a credible threat of harm against a specifically identified individual, then that mental health professional must give a warning to that individual. (Tarasoff)

Answer 4

1. There are NO duties to act affirmatively, so no obligation to rescue person in peril. a. Exception: But once choose to undertake an activity must act as the reasonably prudent person. So can be liable if choose to rescue then abandon in middle of rescue. 2. Exception: If the parties had a preexisting relationship (common carriers & innkeepers) that triggers duty to act reasonably under the circumstances (such as call 911 for fire) 3. Exception: if ∆ caused π’s peril, ∆ has duty to act reasonably under the circumstances because ∆ is cause of π’s peril

Answer 5

1. The ∆ will be whomever is in possession of the land (owner or tenant in possession) 2. The duty of care varies depending on the type of entrant: a. Undiscovered Trespasser i. NO duty of care b. Discovered or Anticipated Trespasser (past is predictor of future trespass) i. Duty of care only when the danger is a (1) highly dangerous (2) artificial condition (3) concealed/hidden & (4) known by ∆ c. Licensee (permission - social guest or solicitor) i. Duty of care only when the danger is (1) concealed & (2) known by ∆ d. Invitee (invited & confer economic benefit on ∆) i. Duty of care only when the danger is (1) concealed & (2) ∆ knew or reasonably should have known about it as a reasonably prudent person inspecting his property 3. Adequate Warning Exception: a. Whenever ∆ owes a duty of care for premises, the duty can be satisfied through adequate warnings, the dangerous condition need not be repaired if the warning is adequate. 4. Firefighters & Police Officers: a. Barred from recovering for injuries that are inherent risks of their job b/c of their assumption of the risk. 5. Attractive Nuisance Doctrine – Child Trespassers: a. A possessor should expect child trespassers when there is something artificial and attractive to a child on the property. The child is entitled to a higher duty of care than the adult trespasser. The more likely it is that a child will trespass (proximity to children, kid magnets) the higher the ∆’s duty to protect children from artificial conditions.

Answer 6

1. π can use violation of a criminal statute to establish negligence per se – a conclusive breach of duty – if π can show (1) π is a member of the class of persons the statute is designed to protect & (2) the accident falls within the class of risks the statute is trying to prevent 2. Exception: If compliance with the statute would be more dangerous than violating it, don’t use the statute 3. Exception: If compliance with the statute is impossible under the circumstances, don’t use the statute

Answer 7

1. Do whole negligence analysis first, then b/c no physical injury prove NIED b/c of the emotional distress 2. 3 scenarios for recovery a. Near Miss Cases i. π can recover for being placed in zone of physical danger by ∆ only when π shows subsequent physical manifestations of distress from the fright (such as heart attack or extreme depression) b. Bystander Cases i. When negligent ∆ caused physical injury to someone other than π, π can recover for grief only when π is (1) closely related to victim and (2) physically present & contemporaneous accident witness c. Relationship Cases i. ∆ and π are in preexisting business relationship and relationship is one where carelessness will foreseeably cause π distress (HIV+, funeral)

Answer 8

1. π will allege the breach here was [insert facts]. This is unreasonable because [insert reason]. 2. Exception: Violating statute establishes negligence per se 3. Exception: Res Ipsa Loquitur (the thing speaks for itself) – fallen barrel a. Two part showing that (1) accident is of the type normally associated with negligence (appeal to common knowledge) and (2) normally associated with negligence of someone in ∆’s position (often showing ∆ has control over the injury causing instrumentality) b. Once make 2 part showing, goes to jury to decide

Answer 9

1. But For Test – default substantive test: a. Whether but for the breach π would have been injured today. Imagine hypo world and whether if ∆ had acted carefully π would have escaped injury. 2. Substantial Factor test – for merged causes & multiple ∆s: a. When combination of factors causes injury, must determine whether each of the breaches on their own would be substantial factors 3. Unascertainable/Alternative Causes Approach: a. Shift burden of proof to ∆ to prove their breach didn’t cause the harm in order to avoid liability (Summers v. Tice – hunting eye shot)

Answer 10

1. Liability only for foreseeable consequences, no liability for unforeseeable consequences b/c of fairness concerns 2. Direct Cause: when the harm is suffered immediately after the breach with nothing intervening, there is foreseeability unless the outcome is “freakish and bizarre” (Palsgraf) 3. Indirect Cause: when there’s an intervening cause between ∆’s act and harm, must go to jury to decide if foreseeable, except in 4 scenarios where established that liable despite intervening cause: a. (1) Intervening medical negligence, (2) intervening negligent rescue, (3) intervening protection or reaction forces, (4) subsequent disease or accident

Answer 11

1. Must show economic & noneconomic damages to be compensated. Under eggshell-skull π rule take π as you find him and ∆ liable for all harm suffered even if surprisingly great in scope.

Answer 12

i. Minority Rules (likely not on bar exam): 1. Contributory Negligence a. Bars π’s recovery when π’s negligence contributed to his injuries. Under last clear chance doctrine person with last clear chance to avoid accident is liable for negligence (π will assert as defense against contributory negligence bar) 2. Implied Assumption of the Risk a. If π knew or should have known of risk & voluntarily proceeded in face of the risk, recovery barred.

Answer 13

ii. Comparative Negligence (defense for negligence & for strict liability) 1. ∆ shows π failed to exercise reasonable care for his own safety. Π has not exercised reasonable care if he (1) is not reasonably prudent in his actions &/or (2) doesn’t follow a statute meant as self protective (jaywalking laws) 2. Default: Pure Comparative Negligence a. Reduce π’s recovery by % of negligence 3. Alternative: Modified/Partial Comparative Negligence a. If π more than 50% negligent, no recovery. If π less than 50% negligent, recovery reduced by % of negligence.

Answer 14

1. Animals - domestic v. wild 2. Abnormally Dangerous Activities 3. Strict Liability for Products Defense: Comparative Responsibility (same as comparative negligence)

Answer 15

i. Domesticated Animals (house pets & farm animals) 1. No strict liability for your domesticated animal causing injuries 2. Exception: if you keep a domesticated animal with knowledge of its vicious propensities (first bite free, only negligence), strict liability attaches a. Exception to the Exception: No strict liability for trespassers, only if injured person is guest or in public. ii. Wild Animals 1. Strict liability for your wild animal causing injuries. Safety precautions are no defense.

Answer 16

i. Strict liability if you are engaged in abnormally dangerous activities (blasting, extremely caustic chemicals or biological material, radiation or nuclear energy) ii. Test for whether it’s abnormally dangerous: (1) activity creates a foreseeable risk of serious injury even when reasonable care is exercised, & (2) activity is not common is place where ∆ is conducting it

Answer 17

i. 4 Element Test: 1. ∆ is a merchant a. causal sellers & services providers AREN’T merchants b. lessors ARE merchants if routinely lease property c. no privity of K req’t, can sue up the chain of distribution 2. Product is defective – 3 kinds of potential defects a. Manufacturing defect i. Product came off assembly line in way that makes I more dangerous than consumers would expect. B/c strict liability, evidence of quality control is irrelevant. b. Design defect i. Hypothetical Alternative Design (HAD) could have been built instead – 3 criteria: 1. HAD is safer than version actually sold 2. HAD is economical (approx same cost) 3. HAD is practical (doesn’t impair utility) c. Information defect i. Can’t be redesigned to eliminate hidden residual risks & no adequate warning about those residual risks. (can’t put warning to eliminate design defect when could redesign, must redesign) ii. Adequate warning = (1) prominent warning (2) bilingual if marketed to more than one language population (3) use pictures where necessary 3. π must show product hasn’t been altered since left ∆’s control a. presumed if product moved in ordinary distribution channels – so ∆ must prove alternation to overcome 4. π was making foreseeable use of product at time of injury a. many misuses are foreseeable (stand on chair)

Answer 18

a. Describes type of harm & cause of action: π’s ability to use and enjoy their property disrupted to an excessive/unreasonable degree i. Doesn’t matter if ∆’s conduct was deliberate, negligent, or without fault. b. Usually involves inconsistent land use and court will balance interests to determine if interference if π’s land use occurred to an unreasonable degree.

Answer 19

i. 4 situations where π sues purely passive party b/c of relationship between that party and active torfeasor: 1. Employer/employee relationship: employer vicariously liable for torts committed within the scope of employment. a. Exception: intentional torts generally outside scope of employment b. Exception to the Exception: if the job involves authorization of the use of force (security guard) or generates friction or tension (repo & debt collector) or tort committed by misguided employee trying to serve employer’s interests, then intentional tort can be in scope of employment 2. Hiring Party & Independent Contractor: generally no vicarious liability a. Exception: if a business hires an independent contractor and the independent contractor injures an invitee on the business property, business vicariously liable 3. Owner of Car & Driver: generally no vicarious liability a. Exception: if driver using car to do errand for owner, driver is agent of the owner so owner vicariously liable 4. Parents & Children: Parents are not vicariously liable for the torts of their children, no exceptions. a. However, can have separate negligence suit against father for leaving loaded gun on dining room table.

Answer 20

i. Comparative Contribution: jury assigns % and when one co-defendant pays in full they can recover from co-defendants for their % of liability ii. Indemnification: 2 case where out of pocket party can get all $ back 1. Vicarious liability: can indemnify active tortfeasor to get them to pay in full and you then get all $ back despite vicarious liability 2. Strict Liability for Products: seller can indemnify manufacturer to make manufacturer pay in full

Answer 21

i. 3 categories of recovery for loss as spouse of victim, a derivative claim: (1) loss of services, (2) loss of society/companionship, (3) loss of sex

Torts Flashcards

(45 cards)