Torts Flashcards
(28 cards)
Negligence – Elements of the Prima Facie Case
- The defendant owes a duty of care to conform to a specific standard of conduct
- The defendant breached that duty
- The breach of duty was the actual and proximate cause of the plaintiff’s injury
- The plaintiff suffered damages to person or property
general standard of care
The general standard of care is a reasonable person (average mental ability but the same physical characteristics as the defendant)
standard of care – professional
Professionals must exercise the knowledge and skill of a member of the profession in good standing
standard of care – children
Children must conform to standard of care of a child of like age, education, intelligence, and experience (except the adult standard applies if the child is engaged in an adult activity)
Duty to Rescue
No duty to rescue a person in peril unless D caused the peril or D had a pre-existing relationship with P. The duty that arises is one of a duty to act reasonably (not duty to rescue).
Pre-existing relationship Duty to Rescue
Pre-existing relationship includes: (1) familial relationships; (2) common carriers and innkeepers w/ customers; (3) land occupiers and invitees business customers; (4) Employers/employees when employee is acting within scope of employment.
Gratuitous Helpers in an Emergency (Rescuers)
If you opt to rescue and you perform the rescue negligently, you are liable. Many states have changed this rule by adding in Good Samaritan laws. (MBE question would have to say the state has a good Samaritan law.)
Duty Regarding Negligent Infliction of Emotional Distress
First, establish that D was negligent. P can recover under 3 subcategories:
(1) Near Miss Recovery
(2) Bystander Case
(3)
NIED Near Miss Recovery
Near miss recovery is available if P shows the following two things:
(1) P must show he was in a zone of physical danger; and (2) there is subsequent physical manifestations of distress.
NIED Bystander Case
A negligent defendant will cause serious injury or death to someone that is a nonparty in the lawsuit. Plaintiff may recover by showing:
(1) P and the direct victim must be close family members; and
(2) P was on the scene and witnessed the injury to the victim in real time;
NIED Business Relationship Cases
P and D are in a pre-existing business relationship where careless performance is highly likely to cause emotional distress. (Emotional distress should be foreseeable. If a lab screws up, foreseeable to cause distress. If dry cleaning messes up, not foreseeable).
Res Ipsa Loquitur
To relieve P from having to show Breach, P must show:
(1) Accident that occurred is of the type/sort that does not normally occur absent someone’s negligence;
(2) This type of accident is normally due to negligence by someone in D’s position.
Actual/Factual Cause (But-For Test)
But-For Cause Test: But-for the breach, P would not be injured as of today. D would try to argue, even if I didn’t do X, the injury to P would still have occurred.
Actual/Factual Cause with Multiple Defendant Causation Tests:
Merged/Joint-Cause scenarios applies the Substantial Factor Test: D’s conduct was a substantial factory in the injury P suffered.
Unascertainable/Alternative Cause uses Burden Shifting Test: Where there are two acts, but only one caused the injury and the specific act that did so is unascertainable, then the burden of proof regarding legal cause is shifted to the multiple D’s. (2 D’s shot at a bird and 1 hit P.)
Foreseeable consequences of foreseeable intervening events
(1) Intervening Medical Negligence;
(2) Intervening Negligent Rescue;
(3) Intervening Protection/Reaction Forces;
(4) Subsequent Disease or Accident
Egg Shell Skull Doctrine
P will recover from all harm suffered even if it is surprisingly great in scope. This rule applies to every tort, but is most commonly seen with Negligence.
Manufacturing Defect
Exists if the product differs/departs from all of the others which came off of the same assembly-line which makes it more dangerous than consumers would expect
Design Defect
Where all products in the line are the same BUT they ALL have certain dangerous propensities.
The costs of a design outweigh the benefit of the design such that a reasonable person would not put it out on the market.
D is liable if P can show that a hypothetical alternative design is safer, economical, and practical.
Inadequate Warning Defect
Product may be defective as a result of manufacturer’s failure to give adequate warnings as to the risks associated with using the product. Only applies if the danger was not warned against and is not apparent on its face. Look at the warning and decide whether it is adequate or could have been improved upon (placement, language, complicated, etc).
Private Nuisance
A substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possesses or to which he has a right of immediate possession
Slander Per Se Categories
(1) any statement relating to P’s business or profession; (2) serious crime (honestly or violence); (3) imputes unchastity to a woman; (4) loathsome disease.
Appropriation of P’s Name or Picture
D uses P’s name or image without permission for commercial advantage. There is a newsworthiness Exception if using P’s name/picture for news.
Intrusion Upon P’s Affairs or Seclusion
Invasion of P’s seclusion in a way that would be highly offensive to a reasonable person.
False Light
Widespread dissemination of a material misrepresentation about P that would be objectionable to a reasonable person.
