Torts MEE Flashcards
(89 cards)
1
Q
Who is owed a duty?
A
All forseeable Ps.
2
Q
Who is owed a duty under the majority view (Cardozo)
A
Ps within zone of foreseeable harm
3
Q
Who is owed a duty under the minority view (Andrews)
A
anyone who is harmed
4
Q
Affirmative duty to act
A
Generally, there’s no affirmative duty to aid or rescue someone.
5
Q
Assumption of duty
A
if someone starts to aid or rescue, must act with reasonable ordinary care to not increase the risk of harm
6
Q
Psychotherapists’ duty to warn
A
if a patient makes credible threats of physical violence, under a duty to warn intended victim
7
Q
General standard of care
A
To act as a reasonably prudent person under the circumstances
8
Q
Standard of care for possessor of land (modern approach)
A
must exercise reasonable care under the circumstances to all land entrants, except trespassers
9
Q
tresspasser
A
person on the land without consent or permission
10
Q
Duty to trespassers (traditional approach)
A
to refrain from willful, wanton, reckless, or intentional misconduct
11
Q
Duty to invitees (traditional approach)
A
to inspect and discover unreasonably dangerous conditions and protect invitee from them
12
Q
invitee
A
invited as member of public or a business visitor
13
Q
licensee
A
enters with express or implied permission for a specific purpose
14
Q
duty to licensee
A
to warn of concealed dangers that are known or should be obvious and use reasonable care in conducting activities
15
Q
Attractive Nuisance
A
involves injuries to trespassing kids; liable if:
- Artificial condition exists where owner knows/ should know kids are likely to trespass;
- Condition imposes and unreasonable risk of serious bodily injury;
- Kids cannot appreciate danger due to youth;
- Burden of eliminating danger is slight compared with risk of harm; and
- Land possessor failed to exercise reasonable care to protect kids
16
Q
LL duty to tenants
A
Protect from foreseeable attacks by third parties
17
Q
Duties of children
A
Duty to act as a reasonable child of the same age. If engaged in an adult activity (e.g., driving a car), duty to act as a reasonably prudent
adult
18
Q
Custom
A
Evidence of an industry or community custom is admissible as evidence of relevant standard of care. Evidence of custom is not conclusive
19
Q
Professionals duty
A
Duty to perform at the same level as another practitioner in the same community
20
Q
Doctor duty
A
Duty to perform as an average doctor based on a national standard
21
Q
Breach
A
If D fails to meet applicable standard of care
Modern factors for determining breach (CBA):
1) Foreseeability of harm;
2) Severity of harm; and
3) Burden on D to prevent the harm
22
Q
Res Ipsa Loquitur
A
Arises if no direct evidence of D’s negligent conduct, lets trier of fact infer negligence
P must prove that:
a) The type of accident would not normally occur absent negligence;
b) Injury was caused by an agent or instrumentality within D’s exclusive control
c) Injury was not due to P’s own actions
23
Q
Negligence Per se
A
Arises if statute imposes a specific duty
- P must be within the class of persons the statute is meant to protect
- P must suffer the type of harm the statute was meant to protect against
- D’s violation of the statute must be the proxi cause the Ps’s harm
24
Q
Actual causation
A
Plaintiff must show that but-for defendant’s actions plaintiff’s injury would not have
occurred
25
Substantial factor rule
Arises if multiple causes of the harm and each alone would have been a factual cause of the injury
- Conduct of each D is a cause in fact if it was a substantial cause of the
injury
26
Alternative Causation
* Arises if P's harm is caused by multiple defendants (2–5) and each D conduct was individually tortious
* Burden of proof can shift to D to prove each was not cause in fact
27
Proximate Cause
P must show that the injury was a foreseeable result of the D’s conduct
28
Intervening Cause
An outside force that contributes to Ps harm after Ds act
* If foreseeable, will NOT cut off D’s liability
* If unforeseeable, it is a superseding cause and cuts off D’s liability
29
Damages
P must prove actual injury, not economic loss
30
Eggshell skull rule
arises if P has a preexisting condition or vulnerability
D is liable for the full extent of the P's injuries, even if extent of harm was not foreseeable
31
Negligent Infliction of Emotional Distress (NIED
P must have been within the zone of danger of the threatened physical impact. Must have some physical manifestation of the emotional distress.
32
When can a bystander OUTSIDE the zone of danger recover for NIED
If P:
- Is closely related to a person harmed by D’s negligence;
- Was present at scene of injury; AND
- Personally observed the injury
33
Contributory Negligence (old rule)
If the P's negligence contributed to his harm, it was a complete bar to recovery.
34
Comparative Fault (modern rule) two types:
- Pure comparative negligence (minority rule)
- Modified or partial comparative negligence (majority rule)
35
Modified or partial comparative negligence (majority rule)
P’s recovery is reduced by amount of P’s fault, but P cannot recover if he's more at fault than the D
36
Pure comparative negligence (minority rule)
P's recovery is reduced by the amount
of the P's fault, regardless of how at fault the P is
37
Assumption of the Risk
P's recovery may be barred or reduced if she voluntarily and knowingly assumed the risk of the behavior
38
Abnormally dangerous activity
High risk of harm, that is not commonly found in the
community, which has a risk that cannot be eliminated with due care
D engaged in an abnormally dangerous activity is subject to STRICT LIABILITY for
injuries and property damage caused by activity.
39
Examples of abnormally dangerous activity
Explosives, fumigation, disposing of hazardous waste, storing
chemicals
40
Defenses to abnormally dangerous activity
Recovery may be barred or reduced if P voluntarily and knowingly ASSUMED THE RISK
41
Wild Animals
Strict liability applies to wild animals (e.g., bear, tiger, etc.)
* Also applies to domestic animals if owner knows or has reason to know of a dangerous
propensity
* P must show causation and damages
42
Strict products liability
D in the business of selling a commercial product may be strictly liable for a defective
product causing foreseeable injuries to a P.
Absolute duty: D could be manufacturer, distributor, and retailer.
43
When is a product defective?
If, at the time of sale or distribution, it has a manufacturing defect, design defect, or inadequate instructions or warnings
44
Manufacturing Defect
Deviation from what manufacturer intended product to be that causes harm
to P
Ask: Did the product conform to D's own specifications?
45
Design defect consumer expectation test
P must prove product is dangerous beyond expectation of an ordinary consumer
46
Design defect Risk utility test
P must prove a reasonable alternative design that's economically feasible was available to D, and failure to use that design
rendered the product unreasonably dangerous.
47
Failure to warn for strict products liability
Exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or
warnings
48
Causation for strict products liability
Actual causation: Product must have been defective when it left D’s control and the defect was
the actual cause of the harm.
Proximate causation: Defect causing P's injuries occurred when product was used in a reasonably foreseeable way. D may be liable if P misuses product, if misuse is foreseeable.
49
Defenses to strict product liability: contributory fault -
P's contributory fault is generally not a defense to a strict products liability
action. If P knows of defect and unreasonably uses product anyway,
contributory fault may be a defense to bar or reduce recovery.
50
Defenses to strict product liability: assumption of the risk
Recovery may be barred or reduced if P voluntarily and knowingly assumed the risk of using the product
51
Express Warranty
A promise or guarantee made by D about the product
If product doesn't meet this warranty, D has breached this warranty and
P can recover damages.
52
Implied Warranty of Merchantability
A product that is sold is impliedly warranted to be reasonably useful and safe for average use.
53
Implied Warranty of Fitness for Particular Purpose
If a seller knows or has reason to know of a particular purpose for which an item is being purchased by the buyer, seller guarantees the item is fit for that purpose.
54
Defamation
P may bring an action for defamation if D's defamatory language:
o Concerns P;
o Is published to a 3P who understands its defamatory nature; and
o Damages the P's reputation
55
Defamatory language
The language diminishes the respect, esteem, or goodwill towards P.
56
Defamation Concerning P
Reasonable person must believe that defamatory statement refers to this particular
P and holds him up to scorn or ridicule in the eyes of a substantial # of respectable
members of the community.
57
Defamation publication
Statement must be communicated to a 3P
58
Damage to P's reputation
Libel (written) - general damages presumed
Slander (oral) - damages NOT presumed
Slander per se - damages presumed when statements involve professional reputation,
disease, crimes of moral turpitude, or unchaste behavior
59
Constitutional defamation reqs
Constitutional defamation requirements apply if:
1) P is a public official (politician) or public figure (celebrity); or
2) P is a private individual, but statement involves a matter of public
concern.
60
First Constitutional Requirement: Falsity
P must prove statement is false; and
- If P is a public official or figure, must prove D acted with
actual malice (D knew statement was false or acted in reckless disregard as to truth or falsity of the statement)
- If P is a private individual and D’s statement involves a matter of public concern, P must prove D acted with
negligence or actual malice.
61
Defamation defenses: Truth
Truth is an absolute defense to defamation.
61
Second Constitutional Requirement: Limits on Damages
- A public official or figure or a private individual and matter of public concern—P
must prove actual damages
- A private individual who can show actual malice may also recover punitive damages
62
Defamation defenses: Consent
Consent is an absolute defense if D didn't exceed scope of consent.
63
Defamation defenses: Absolute privilege
Used for remarks during judicial or legislative proceedings, bw spouses, or in required
publications. Cannot be lost
64
Defamation defenses: Qualified privilege
Affects an important public interest or is in the interest of D or a 3P. Can be lost if exceeds scope of privilege or speaker acted in malice
65
Misappropriation
Unauthorized use of P's name, likeness, or identity for D's advantage
(commercial or otherwise)
P must prove lack of consent and injury
66
Intrusion upon Seclusion
D's acts of intrusion into P's private affairs are objectionable to a reasonable
person
67
False light
P must prove D published facts about P or attributed views or actions to P that place him in a false light and are highly offensive to a reasonable person
68
When is public disclosure of private facts actionable?
If:
- publication would be highly offensive to a reasonable person AND
- is not of legit concern to public
69
Battery
Requires
1) harmful or offensive contact
2) to P’s person (or anything connected to it),
3) D INTENDED to cause contact and
4) causation
70
Assault
Requires an act or threat (mere words not enough) placing P in in reasonable
apprehension of imminent harmful or offensive contact with his person, intent by D to put P in apprehension (transferred intent applies), and causation
71
Intentional Infliction of Emotional Distress (IIED)
Requires extreme and outrageous conduct by D causing severe emotional distress
to P and intent by D to cause distress.
72
IIED Liability to 3P
D can be liable if:
- he distresses a member of victim’s immediate family.
- if he distresses a bystander (not family) if the distress results in bodily injury to bystander
73
False imprisonment
Intentional confinement or restraint of P (physical barriers or force, threats, invalid use of legal authority, duress) for any amount of time.
- Must be no reasonable means of safe escape.
- Actual damages aren't necessary if P was aware of confinement
74
Shopkeeper's Privilege
Defense to False imprisonment: If a shopkeeper reasonably suspects P of stealing, he can detain P for a
reasonable amount of time in a reasonable way.
75
Defense: Consent
Must be voluntary. D will be liable if he exceeds the scope of Ps consent
76
Tresspass to chattels (tangible personal property)
Interference with P’s possession of her chattel
requires INTENT to act interfering with: possession (transferred intent applies), causation, and damages
77
Conversion
Requires serious interference with P’s possession of her chattel, intent to perform the act
that interferes with the possession (transferred intent doesn't apply), causation, and damages.
78
Trespass to land
Physical invasion of another’s land and intent to enter the land or cause physical invasion
79
Private Necessity Defense to trespass
Allows a person to enter P's land to protect her own person or property from harm. Not liable for trespass but responsible for actual damages
80
Public Necessity defense to trespass
A person can enter P's land to prevent an imminent public disaster.
Not liable for damage if actions were reasonable
81
Private Nuisance
A substantial (offensive to a reasonable person) and unreasonable (balance the interests of P and D) interference with another’s use or enjoyment of his land
82
Public nuisance
An unreasonable interference with a right common to the general public
83
Defenses to Nuisance
Regulatory compliance is a partial defense if D is following the law. Coming to the nuisance is a defense.
84
Remedies for nuisance
Money damages and injunctive relief
85
Abatement (eliminating the nuisance)
Private: Reasonable force is permitted to abate nuisance. P must give notice of nuisance and D must refuse to act before
action can be taken
Public: Absent unique injury, public nuisance may be abated only by public authority
86
Vicarious liability: employee vs Independent contractor
1) Determine if the person who committed the tort is an employee or an independent
contractor
2) Generally, an employer is liable for torts of an employee, but not for the torts of independent contractor.
3) More control employer has, the more likely the person is an employee
87
Liability for vicarious liability
Employer is liable for an employee’s torts (including intentional torts) committed within the scope of employment
Employer is generally not liable for an independent contractor’s torts, but may be liable for non-delegable duties or inherently dangerous activities
88
Last clear chance doctrine
Negligent P can still recover if he is able to show that the D had the last clear opportunity to avoid the accident.
