Torts II Flashcards
(110 cards)
1
Q
Four exceptions to contributory negligence
A
- D engaged in intentional, reckless, or wanton acts
- Last Clear Chance Doctrine
- D has a duty under statute or common law to P from P’s own risky conduct
- P has no duty and/or has a right
2
Q
Comparative negligence
A
P’s negligence limits D’s liability proportionally
3
Q
Pure comparative negligence
A
P can recover no matter how great P’s negligence is
4
Q
“Greater than” comparative negligence
A
If P’s fault or negligence is greater than the D’s then P is barred from recovery. Equal to is not greater than.
5
Q
“Equal to” comparative negligence
A
If P’s fault is equal to or greater than D’s, then P is barred from recovery
6
Q
Assumption of Risk
A
The P may be denied recovery if he assumed the risk of any damage caused by the D’s acts. This assumption may be express or implied.
7
Q
Express assumption of risk
A
Contractual agreement via exculpatory clause. Exceptions: contracts of adhesion, public policy, public interest
8
Q
Implied assumption of risk
A
- Knowledge of risk: Knowledge may be implied where the risk is one that the average person would clearly appreciate
- Magnitude/appreciation of risk
- Voluntarily encounters the risk
9
Q
Statute of Limitations
A
Affirmative defense through which D claims the time period within which the suit should have been brought has run
10
Q
When does the clock start running for SOL?
A
- Accrual of injury: the date you suffered the injury
- Discovery rule: the date they discovered or should have discovered the harm
- Continuing negligence: after the last injury suffered
11
Q
Spousal immunity
A
Spousal immunity has been abrogated, spouses may now maintain a tort action against the other
12
Q
Parental Immunity
A
General rule is that parents have immunity, but some jurisdictions have abrogated- if parents want to claim immunity, then they must prove that they were acting within the scope of ordinary parental discretion and there was no actionable duty to supervise
13
Q
Step-Parent immunity
A
General rule is that no step-parent is automatically immune solely by virtue of marriage to the child’s parents.
Exception: in loco parentis- financially support the child per common law requirement and duty to support as a natural parent
14
Q
Charity Immunity
A
General rule is that they are liable for it’s negligence and for the negligence of it’s employees acting within the scope of employment
15
Q
State Government immunity
A
General rule is that a state and its government agencies are not subject to suit without the consent of the State (which has waived immunity in most instances)
16
Q
Local government immunity
A
General rule is that local governments do not enjoy immunity, including villages, towns, municipal corporations
17
Q
US government immunity
A
General rule is sovereign immunity.
18
Q
Public officers immunity
A
General rule is that they are not immune from tort liability. A public officer acting w/in the general scope of his authority is immune from tort liability for an act or omission if he was engaged in exercise of discretionary function or if he was not negligent in the performance of his responsibility
19
Q
Duty of Care: Privity of Contract
A
A P who lacks privity of contract with D may not sue D based on negligent performance of a contract between D and a third party
20
Q
Duty of Care
A
General rule is to act as a reasonable person. A failure to act/omission to act a reasonable person constitutes a breach
21
Q
Owners and Occupiers: Outside the premises
Natural conditions
A
Common law: no duty, no liability
Modern: Duty of reasonable care if: (i) possessor knows of risk or if risk is obvious, (ii) for property adjacent to public walkway landowner has no duty of care for risks they did not create
22
Q
Owners and Occupiers: Outside the Premises
Artificial Conditions
A
Common law: duty of reasonable care (to act as a reasonable person)
Modern: duty of reasonable care
23
Q
Owners and Occupiers: Outside the Premises
Urban/Rural distinction
A
Common law: Urban leans towards duty, rural leans away from duty
Modern: reasonableness is based on facts rather than geographical location per se
24
Q
Owners and Occupiers: On the Premises
Trespassers
A
Common law: Before a trespasser is known, there is no duty. But a duty may exist or be owed to a trespasser if they have knowledge of presence; duty to try to avert injury or act carefully under the circumstances
Modern: duty to act as a reasonable person under the circumstances
25
Owners and Occupiers: On the Premises
| Flagrant Trespassers
Common law: same as regular trespassers
Modern: duty not to act in an intentional, willful, or wanton manner. If the flagrant trespasser is imperiled and helpless, or unable to protect self, then there is a duty to act as a reasonable person
26
Owners and Occupiers: On the Premises
| Invitees
Common law: duty to keep premises reasonably safe
| Modern: merges invitees and licensees, duty to keep reasonably safe
27
Owners and Occupiers: On the Premises
| Licensees
Common law: duty to warn guest of dangers unknown to guest and known to possessor
Modern: merges licensee and invitee, duty to act reasonably
28
Owners and Occupiers: Rowland
Merges all the categories: owners owe all entrants a duty of reasonable care
29
Owners and Occupiers: Restatement
Merges invitees and licensees, and trespassers. Treats flagrant trespassers differently
30
Contributory negligence
If the negligent conduct of the plaintiff is a cause of plaintiff's injuries, the plaintiff is barred from recovering from defendant even though defendant's negligent conduct also caused plaintiff's injuries
31
Last Clear Chance doctrine
P's claim is not barred when P is contributorily negligent if P can establish D had the last clear chance to avoid harm
32
Vicarious Liability
When one person commits a tortious act against a third party, and another person is liable to the third party for this act. P looks to the actor who committed the tort, and looks up the chain to see if anybody could be liable for the tort
33
VL: Respondeat Superior
Employer/employee: an employer will be vicariously liable for tortious acts committed by their employee if the tortious act occurs within the scope of the employment relationship
34
Frolic (scope of employment)
An employee is on a frolic if the pursuit of the employee's personal business is a substantial deviation or an abandonment of the employment, and the employer is not liable
35
Detour (scope of employment)
An employee takes a deviation if it is sufficiently related to the employment to fall within its scope. If the deviation was minor in time and geographic area, the employer will be liable
36
Factors to determine whether deviation is slight or major: TWINEF
(1) employee's intent
(2) nature, time, and place of deviation
(3) time consumed in the deviation
(4) work for which the employee was hired
(5) incidental acts reasonably expected by the employer, and
(6) freedom allowed the employee in performing his job responsibilities
37
Going and coming rule (scope of employment)
Employer liability is suspended from the time employee leaves his job until he returns. An exception to this is when an employee endangers others with a risk arising from or related to work (foreseeability).
38
VL: Independent Contractor
In general, a principle will not be held liable for tortious acts of an independent contractor
39
To determine whether one is an independent contractor:
Depends on the control exercised by the person who hired them- the less control there is, more likely to be an IC
40
Independent Contractor Exceptions:
1. Non-delegable duties
2. Apparent authority: D represents expressly or impliedly that the IC was an employee, then D is VL
3. Inherently dangerous activities: whether the act carries a peculiar risk of harm that calls for more than ordinary precaution
4. Illegal activities
41
VL: Joint Enterprise
Where D and the person who commits the tort are engaged in a joint enterprise, the D is VL
42
Joint Enterprise Elements (PACE)
1. An agreement, express or implied, between members of the group
2. Common purpose to be carried out by group
3. Pecuniary interest in the purpose
4. Equal right in control of the enterprise
43
VL: Bailments
The bailor is not vicariously liable for the tortious conduct of his bailee
44
VL: Imputed Contributory Negligence
Limited to employer/employee relationship: negligence of employee can be imputed to employer and therefore bar employer from recovering from the third negligent party
45
Bailments: Family Car Doctrine
The owner of a car is liable for the negligent operation of the car by member of his family when the owner furnished the care for the use, pleasure or business of family member, with consent for that use, express or implied
46
SL: Livestock/Cattle
An owner of livestock or cattle that intrudes upon the land of another is subject to strict liability for physical harm caused by the intrusion.
Does not apply to livestock entering highways
Applies to harm that falls within the scope of risk that makes the activity tortious
47
SL: Wild Animals
An owner of a wild animal is subject to SL for physical harm caused by the wild animal
- No SL for wild animals living in the wild
- Owner not liable if animal is stolen and injures someone
- Owner not liable if animal returns to the wild and injures someone
48
Definition of Wild Animal
A wild animal is an animal that belongs to a category of animals that have not been generally domesticated and that are likely, unless restrained, to cause personal physical injury
49
SL: Other Animals
An owner of an animal that the owner knows or has reason to know has dangerous tendencies abnormal for the animal's category is subject to SL for physical harm caused by the animal
50
SL: Provocation of Animals
Injuries caused by provocation of animals do not establish dangerous tendencies
51
SL: Abnormally Dangerous Activities
An actor who carries on an abnormally dangerous activity is subject to SL for physical harm resulting from that activity
52
Definition of Abnormally Dangerous Activity
An activity is abnormally dangerous if: (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one of common usage
53
Factors to determine whether an activity is abnormally dangerous:
(1) Inappropriateness of the activity to the place where it is carried on, and
(2) Extent to which its value to the community is outweighed by its dangerous attributes
54
Limitation on SL: encountering the abnormally dangerous animal/activity
If the person suffers physical harm as a result of making contact w/ or coming into proximity of D's animal or abnormally dangerous activity for their own benefit, there is no SL
55
Product liability: breach of warranty
Express/Implied
| Implied: warranty of merchantability, warranty of fitness
56
Implied warranty of merchantability
Merchantability means that the good are of a quality equal to that generally acceptable and are generally fit for the ordinary purposes for which the goods are used. Seller knows the general purpose for it, and the ordinary grade, quality, and value of the product
57
Implied warranty of fitnes
When the seller knows or has reason to know of the particular purpose for which the goods will be used and that the buyer is relying on the judgment and skill of the seller
58
Product Defect Liability
A seller engaged in the business of selling or distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect
59
Product Defect definition
A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings
60
Manufacturing defect definition
A product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product
61
Design defect definition
A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonably alternative design, and the omission renders the product not reasonably safe
62
Ways to prove design defect:
(1) 2(b), comment f
(2) 2, comment e, "manifestly unreasonable"
(3) 3, circumstantial evidence
(4) 4, violation of statutory requirement
63
Ways to prove manufacturing defect:
(1) 2(A)
| (2) 3, circumstantial evidence
64
Design defect: Section 2(b) balancing factors:
1. Risk-utility factors: cost-benefit, repair, maintenance factor
2. Instructions and warnings accompanying the product
3. Consumer expectations
4. Probability and severity/magnitude of harm
65
Design defect: manifestly unreasonable design
A product is manifestly unreasonable when it has such low utility and high degree of danger that the product must be considered defective even absent a reasonable alternative design
66
Design defect: Section 3, circumstantial evidence
It may be inferred that the harm sustained by the P was caused by a product defect existing at the time of sale or distribution, w/o proof of a specific defect, when the incident that harmed the P: (1) was of a kind that ordinarily occurs as a result of product defect, and (2) was not solely the result of causes other than product defect existing at the time of sale
67
Design defect: Section 4, violation of statutory requirement
A product's noncompliance w/ an applicable product safety statute or admin regulation renders the product defective with respect to the risks sought to be reduced by the statute or regulation
68
Warning Defect definition
A product is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions
69
What constitutes a good warning:
A good warning should get the user's attention, include both risks and risk avoidance where relevant.
-Does not have to warn about obvious risks
70
Warning defect: intermediary rule (6(d)(2))
A RX drug or medical device is not reasonably safe due to inadequate instructions or warnings if reasonable instructions or warnings regarding foreseeable risks of harm are not provided to the patient when the manufacturer knows or has reason to now that health-care providers will not be in a position to reduce the risks of harm in accordance w/ instructions or warnings
71
Warning defect: learned intermediary rule (6(d)(1))
A RX drug or medical device is not reasonably safe due to inadequate instructions or warnings if reasonable instructions or warnings regarding foreseeable risks of harm are not provided to prescribing and other health-care providers who are in a position to reduce the risks of harm in accordance with the instructions or warnings
72
Design defect: RX drug or medical device
A RX drug or medical device is not reasonably safe due to defective design if the foreseeable risks of harm posed by the drug or medical device are sufficiently great in relation to its foreseeable therapeutic benefits that reasonable health-care providers, knowing of such foreseeable risks and therapeutic benefits, would not prescribe the drug or medical device for any class of patients
73
Product Defect Defenses
1. Comparative negligence
2. Misuse/modification
3. State of the art (design defect defense)
4. Open and obviousness of risk (design and warning defect defense)
74
Express Preemption
When Congress has expressly made its intent clear, the state law is preempted by federal law and the manufacturer need only comply with the federal regulations
75
Implied Preemption
When Congress has not made its intent clear, the courts must determine whether preemption is warranted and which claims are to be preempted on a case by case analysis
76
Impossibility (Preemption)
When there is a conflict between federal and State law, and therefore impossible to comply with both and the purpose is frustrated
77
Joint and Several Liability
If you have more than one tortfeasor, under JSL each tortfeasor is both jointly and individually liable for the entire damages
78
When JSL comes into play:
1. Acting in concert
2. Failure to perform a common duty
3. When D acts independently to cause individual harm
79
Apportionment of Damages under JSL
Applies when the injury is indivisible
80
Concurrent tortfeasors
Concurrent tortfeasors plus indivisible injury = JSL
| -Concurrent: two acts that are taking place at the same time that they together cause the harm
81
Successive tortfeasors (related)
Successive related plus indivisible injury = D1 is JSL
| -D2 and D3 no JSL
82
Successive tortfeasors (unrelated)
Successive tortfeasors plus indivisible injury = JSL or not depends on which D is before the court
- D1 cannot be responsible for everything
- D2 can be responsible for everything
83
Libel
Defamation by writing
| -Spoken words that are telecast on radio or tv are considered libel in most jx
84
Slander
Defamation by oral speech
85
Elements for Libel and Slander per se claim:
To create liability for defamation there must be an unprivileged publication of false and defamatory matter of another
86
Elements for Slander claim:
P must show that they suffered special damages, such as pecuniary damages or substantial loss as a result of slander
87
Defamation defense:
truth, or substantial truth
88
Slander per se: actionable without proof of special damages
1. Imputation of major crime
2. Loathsome disease
3. Business, trade, profession, or office
4. Serious sexual misconduct
89
Communication
The D brings an idea to the perception of a third person about the P
90
Publication
A communication to a third person who understood it and identified the P
91
Public officer/public figure
Common law plus actual malice
92
Actual malice
Knowledge of falsity or reckless disregard for falsity
93
Private P/ public concern:
Common law plus negligence/fault off D in publication
| -Actual malice for punitive/presumed damages
94
Private P/ private concern:
Common law and negligence
| -No actual malice required for recovering punitive/presumed damages
95
Licensee
A social guest who is invited to the landowner's property, but for the guest's own purposes as opposed to the business of the landowner
96
Invitee
An individual who is invited onto the premises as a member of the general public in furtherance of the premises owner's business
97
Express Assumption of Risk exception: when public policy is affected:
1. When the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence;
2. When the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other's negligence; and
3. When the transaction involves the public interest
98
Duty of Care: Privity of Contract for Public Duty
Generally, there is no privity required for a public duty.
| -The D undertakes a duty in place of third party, the P relies on such an undertaking to the detriment of the P
99
Strict liability defense
Comparative Negligence
100
Elements P has to prove to recover under strict liability (product):
1. The D manufactured and sold a product in a defective condition unreasonably dangerous to the consumer or user;
2. The product was expected to and did reach the ultimate consumer w/o substantial change in the condition it was in at time it was sold; and
3. The defective condition in the product proximately caused injury to P
101
Failure to act: therapist
When a therapist learns from his patient about intent to do harm to third party, the therapist has a duty to take reasonable precaution given the circumstances to warn the potential victim of danger
102
Owners and occupiers: lessor/lessee
Landlord must exercise ordinary care toward his tenant and others on the leased premises with the tenant's permission. Where a landlord maintains control over parts of the building for common use, the landlord has a legal duty to exercise reasonable care to minimize the risk to tenants of foreseeable criminal acts committed on the premises
103
Product liability: post-sale failure to warn
One who sells or distributes products is subject to liability for harm caused by seller's failure to provide a warning after the time of sale or distribution of a product if a reasonable person in the seller's position would provide a warning
104
JSL: acting in concert
If a group of individuals act in concert and their concerted act causes harm to the P, JSL applies
105
JSL: failure to perform a common duty to P
If a group of individuals act in a manner that creates a joint duty not to do harm, then JSL applies (included in this are cases involving liability of two parties based on their relationship to each other)
106
JSL: when Ds act independently to cause indivisible harm
If individuals are acting independently but their acts result in an indivisible harm to a person, JSL applies
107
JSL: indivisible injury
Feasibility of apportioning fault on a comparative negligence basis does not render an indivisible injury "divisible" for purposes of JSL
108
When SL is appropriate
SL is appropriate against parties engaged in abnormally dangerous activities; negligence is proper if the risk can be avoided with exercise of due care
109
US gov immunity: FTCA
By enacting the FTCA, congress opted to waive sovereign immunity to civil suit and to give consent to be sued for known damages. Exception to this is the discretionary function, which shields the gov from civil liability for claims based upon the exercise or performance of a discretionary function
110
Scope of employment
An employee is acting within the scope of employment when he is performing services for which he has been employed, or when he is doing anything which is reasonably incidental to his employment
