Torts - Model Rule Statements Flashcards
(16 cards)
negligence, duty of care, physician standard
A prima facie case of negligence requires proof of a duty, breach of that duty, causation, and damages. In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances. A physician is held to a national standard and is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner.
strict products liability
Under strict products liability, the manufacturer, retailer, or other distributor of a defective product may be liable for any harm caused by the product. The plaintiff must prove (i) the product was defective (in manufacture, design, or failure to warn), (ii) the defect existed at the time the product left the defendant’s control, and (iii) the defect caused the plaintiff’s injuries when the product was used in an intended or reasonably foreseeable way. A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test is whether the product conforms to the defendant’s own specifications.
implied warranty of merchantability
The implied warranty of merchantability warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold. Any product that fails to live up to this warranty constitutes a breach, regardless of any fault by the defendant.
market share liability doctrine & the burden of proof
Regardless of the theory of liability, the burden is on the plaintiff to prove that the specific defendant caused the plaintiff’s injuries. There are several theories of liability under which a plaintiff can recover when there are multiple tortfeasors or multiple possible causes for the plaintiff’s harm, but in this case the man will not be able to recover under any of them.
Under the market share liability doctrine, if the plaintiff’s injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market, the jury can apportion liability based on each defendant’s share of the market.
alternative causation doctrine
Under the alternative causation doctrine, if the plaintiff’s harm was caused by (i) one of a small number of defendants, (ii) each of whose conduct was tortious, and (iii) all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause in fact of the plaintiff’s harm.
concert of action doctrine
Under the concert of action doctrine, if two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff’s harm, then all the defendants will be held jointly and severally liable.
to be subject to strict products liability…
To be subject to strict liability, the defendant must be in the business of selling or otherwise distributing the product.
battery
In a battery action, a plaintiff must show that (i) the defendant intended to cause contact with the plaintiff’s person, (ii) affirmative conduct caused such a contact, and (iii) the contact caused bodily harm or was offensive to the plaintiff. A defendant’s contact is intentional if he acts with the purpose of bringing about the contact or engages in an action knowing that contact is substantially certain to occur to the victim. In most jurisdictions, the defendant need only intend to cause contact, not that the contact be harmful or offensive (often called the single-intent rule).
negligence
In a negligence action, a plaintiff must show that the defendant owed a duty to the plaintiff, that the defendant breached that duty, that the defendant caused the plaintiff’s injuries, and that damages exist. Generally, the standard of care imposed on a defendant is that of a reasonably prudent person under similar circumstances. A person is required to exercise the care that a reasonable person under the same circumstances would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person.
vicarious liability
Vicarious liability is a form of strict liability in which one person is liable for the negligent actions of another. An employer is liable for the tortious conduct of an employee that is within the scope of employment.
two approaches to determining if there’s been a breach
In determining if there has been a breach, courts apply one of two approaches: the traditional approach or the cost-benefit approach.
The majority of courts follow the traditional rule and will compare the defendant’s conduct with that of a reasonably prudent person. The modern trend is to perform a cost-benefit analysis to determine whether the defendant has acted in accordance with the standard of care. This analysis considers (i) the foreseeable likelihood that the defendant’s conduct would cause harm, (ii) the foreseeable severity of any resulting harm, and (iii) the defendant’s burden in avoiding the harm. Evidence of custom in an industry may be offered to establish the standard of care, but such evidence is not conclusive.
preexisting physical or mental condition
The defendant is liable for the full extent of the plaintiff’s injuries due to the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.
abnormally dangerous activities
Defendants engaged in abnormally dangerous activities may be held strictly liable for damages caused by that activity, even in the absence of negligence. Activities are considered abnormally dangerous if they create a foreseeable and highly significant risk of physical harm even in the exercise of reasonable care, and the activity is not commonly engaged in.
opposite of negligence per se?
Although the unexcused violation of a statutory standard of care is negligence per se, the converse is not true: an actor who has complied with all statutory standards may still be found negligent if his conduct is not reasonable under the circumstances. In the absence of any special rule to the contrary, the actions of the fireworks company would be subject to a typical negligence analysis. A prima facie case of negligence consists of four elements: duty, breach, causation, and damages.
foreseeable plaintiffs and hazards
Liability typically extends only to foreseeable plaintiffs and hazards. A person who comes to the aid of another is a foreseeable plaintiff. If the defendant negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer’s injuries. Additionally, negligent intervening acts are usually regarded as foreseeable and do not prevent the original defendant from being held liable to the plaintiff.
independent contractor and inherently dangerous activities
Those who engage an independent contractor (one hired to accomplish a task or result but not subject to a right of control by the employer) are generally not vicariously liable for the torts of the independent contractor. The person who hires an independent contractor remains vicariously liable for certain conduct, including inherently dangerous activities and duties arising out of a relationship with a specific plaintiff of the public, including conduct that affects the public at large. An activity is inherently dangerous when, if reasonable care is not exercised, the resulting risk differs from the type of risk usual in the community.
