Torts - Quiz 2 Flashcards

Question

What are the approaches used when considering whether a duty has been created by a relationship?

Answer 1

1. Categorical approach 2. Flexible approach 3. Hybrid approach

Answer 2

Duty exists only exist if the relationship falls into one of the categories listed (traditional approach)

Answer 3

``` Courts consider: 1. The relationship between the people 2. The foreseeability of the harm 3. The defendants ability to prevent the harm (Modern approach) ```

Answer 4

The court starts with the list where a duty exists but doesn't limit the expectations to that list

Answer 5

Missouri courts adhere to the general rule that one does not owe a duty to help, protect, or control others, but they recognize exceptions where a “special relationship” or “special facts and circumstances” are present. 1. Special relationship - creates a duty based solely on the positions of and connections between the parties OR 2. Special facts and circumstances - considers the foreseeability of the harm based on past incidents and the ability of the defendant to prevent the harm

Answer 6

Rules that govern when the owner of a property is liable for injuries to people on their property.

Answer 7

1. Trespassers 2. Licensees 3. Invitees

Answer 8

All entrants to land are trespassers until the possessor gives them permission to enter Possessors owe NO duty of care to trespassers.

Answer 9

All persons who enter with permission are licensees until the possessor has an interest in the visit. Social visitors are a subclass of licensees. The possessor owes a licensee the duty to make safe the dangers of which the possessor is aware.

Answer 10

Once the possessor has a material interest in the visit, the person becomes a visitor at which point the visitor “has reason to believe that the premises have been made safe to receive him”. Possessors owe the visitor a duty to exercise reasonable care to protect them against both known dangers and those that would be revealed by inspection

Answer 11

The traditional approach recognizes and assigns liability according to the distinction between trespassers, licensees, and invitees.

Answer 12

The modern approach disposes with the distinction between invitees and licensees and holds all possessors to a standard of reasonable care under the circumstances

Answer 13

Missouri uses the traditional approach by recognizing the difference between invitees and licensees, while allowing for special facts and circumstances

Answer 14

Businesses may have a duty to warn about the risk of crimes or to protect their customers from crimes occurring on the business premises.

Answer 15

1. Totality of the circumstances 2. Prior similar incidents 3. Balancing 4. Specific harm

Answer 16

Ordinary negligence principles apply. Plaintiff must allege and prove facts sufficient to establish that there was a foreseeable risk sufficient to impose a duty on the defendant. Requires no prior danger or known danger to impose a duty if it was or should have been foreseeable.

Answer 17

A business can’t be liable unless the defendant knew or should have known about specific similar incidents

Answer 18

The burden of showing foreseeability increases with the cost of the precautions that allegedly should have taken place.

Answer 19

A business only has a duty if it operated in a way that specifically attracted criminals or was aware that a specific imminent harm was about to occur to a customer.

Answer 20

Business owners may be under a duty to protect invitees from criminal attacks depending on the facts and circumstances of a given case so long as the danger must be foreseeable.

Answer 21

1. Where the trespasser's presence becomes known to the possessor 2. Where the trespass is constant and the possessor has created a condition likely to cause death/injury and the possessor has reason to believe the trespassers won't discover the dangerous condition. 3. The possessor has created an "attractive nuisance" which creates a duty of care to child trespassers 4. "Hard-by" rule - a duty exists where a possessor creates an artificial condition so close to a public street that it involves an unreasonable risk to children who trespass.

Answer 22

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Answer 23

Yes, a claim of negligent entrustment may arise any time an individual “supplies” a chattel to another with actual or constructive knowledge that the recipient will likely use the chattel in a manner that results in an unreasonable risk of harm, this includes transfers by “sellers, lessor, donors or lenders.”

Answer 24

An individual won’t be liable if they negligently cause a problem that requires emergency personnel to respond and an emergency responder is injured in the process of responding to that call. Only applies to injuries that occur in an emergency situation. This exception doesn’t apply to negligence that is independent and separate from the negligence that caused the initial emergency

Answer 25

Yes, a public safety officer is precluded from receiving tort damages for an injury resulting from the negligence for which they are responding to an emergency situation, however claims can arise for negligence that is separate from the cause for the emergency call.

Answer 26

“Dram shop liability” means an alcohol seller could be liable for injuries suffered or inflicted by intoxicated drinkers. The traditional common-law rule was that dram shops are not liable, but some courts in recent decades have departed from that rule and said that liability may be imposed, particularly for selling alcohol to someone who is underage or obviously intoxicated.

Answer 27

Where it is proven by clear and convincing evidence that the seller knew or should have known that alcohol was served to a person who was underage or visibly intoxicated.

Answer 28

Liability that can arise from providing alcohol in a social setting such as serving drinks to guests at a party. Missouri does not enforce this liability

Answer 29

US v. Carroll Towing Co (neglectful bargekeeper)

Answer 30

Liability for negligence arises where the burden of taking precautionary measures is less than the probability of injury multiplied by the gravity of the injury (Burden < (Probability * Loss) = negligence liability)

Answer 31

1. Economic considerations 2. Customs 3. Golden rule 4. Common sense

Answer 32

Human life is always worth more than personal property

Answer 33

Traditionally, recovery based solely on emotional damage was not allowed. Under the modern approach, such claims are permissible.

Answer 34

Negligent Infliction of Emotional Distress is allowed if: 1. The defendant should have realized his conduct involved an unreasonable risk of causing emotional distress 2. The distress was severe enough to be medically diagnosable and medically significant

Answer 35

The assumption of negligence created by the violation of a statute.

Answer 36

1. A judge decides that negligence is so clearly present or so clearly absent that it doesn’t need to be tried by a jury 2. A particular conduct is deemed to be always negligent through a common law ruling or statute

Answer 37

Majority approach - treats violation of a statute as negligence per se Minority approach - violation of a statute is evidence of negligence but is not dispositive

Answer 38

Compliance with Statutes is evidence of due care but it is not dispositive. Missouri follows the approach that the totality of the circumstances must be considered even where a defendant has complied with the statute - Fire alarm case

Answer 39

Evidence that a person acted in the customary way is a relevant consideration in negligence cases, but it is not dispositive. Likewise, evidence that a person did not act in the customary way is relevant, but does not necessarily mean the person was negligent. Ship radio case

Answer 40

Missouri courts say that the elements of a negligence per se claim are: (1) the defendant violated a statute; (2) the injured plaintiff was a member of the class of persons intended to be protected by the statute; (3) the injury complained of was of the kind the statute was designed to prevent; and (4) the violation of the statute was the proximate cause of the injury

Answer 41

1. Children can't be guilty of negligence per se 2. Reasonability of the act given the actor's childhood, physical disability, or incapacitation 3. Use of reasonable care in attempting to comply with the statute 4. Unawareness of the facts that make the statute applicable 5. Confusing statute may create a defense for a violator of the statute 6. Lesser of two evils - where compliance with the statute would cause a greater risk of harm

Answer 42

"The thing speaks for itself" created by the case Byrne v. Boadle

Answer 43

Missouri follows this approach 1. The accident must be one which normally does not occur without negligence (This is a question of law for the judge to determine) 2. The instrumentalities involved were under the defendant’s management and control (This is a question of fact for the jury to determine, multiple people can have actual joint control, all can be sued) 3. The defendant must have superior knowledge or means of information as the cause of the occurrence (This is a question of law for the judge to determine)

Answer 44

1. The harm suffered is most likely caused by the negligence of someone (can’t be the result of nature or chance) 2. It is more than likely that the defendant was negligent 3. The plaintiff was not at fault or the plaintiff cannot determine what happened

Answer 45

1. Majority of courts apply an inference of negligence on the part of the plaintiff which the jury may rely on or ignore 2. Minority of courts apply a presumption of negligence which the defendant must rebut, if the def can’t rebut the presumption then the jury must rule for the plaintiff

Answer 46

1. Exclusive/Clear control - when one party is solely in control 2. Joint control - when multiple parties are all in control simultaneously (for example surgery) 3. Consecutive control - different parties have control successively, but there is no overlap (for example someone who rides in an ambulance and then is cared for at a hospital) 4. No joint or consecutive controls - different parties doing different things, the aggregate of which results in injury. In this case a suit cannot be sustained unless you can show that a particular party was negligent. (If there is no joint or consecutive control then no Res Ipsa)

Answer 47

1. A complete explanation of the circumstances is available 2. Or there was evidence that was available but the plaintiff chose not to obtain it or ignored it In Missouri, if specific negligence can be alleged or supported, then Res Ipsa cannot be invoked.

Answer 48

1. But for 2. Two fires (Duplicative cause) 3. Preemptive cause

Answer 49

1. Identify the harm 2. Identify the negligence 3. Apply the tests

Answer 50

The plaintiff merely needs to prove by a preponderance of evidence that it is more probable than not that the injury would have been avoided but for the defendant’s negligence.

Answer 51

if two actions contribute equally to the result such that they would both fail the “but for” test, then the two fires or duplicative cause test will be used to determine if they caused the harm.

Answer 52

When one action or event completes the harm before another action or event occurs, then the second event is not actual cause for the harm (even if it would have been had the first event not occurred)

Answer 53

1. A group of defendants 2. Who all acted negligently 3. One or more (but not all) caused the harm 4. The plaintiff cannot determine which one caused the harm 5. Everyone who might have caused the harm is a defendant

Answer 54

If not all of them acted negligently then alt liability won’t hold. For example the cops who shot at the building thinking there was a sniper. No liability there because some of them may have acted negligently and some of them may have acted responsibly

Answer 55

If they all caused the harm then alternative liability won’t be necessary, instead you would use duplicative cause or the two fires situation because they all contributed

Answer 56

The Mo. Sup Court has rejected Alt Liability claims but without ruling out the possibility of allowing a claim in an appropriate case

Answer 57

Res ipsa claims create an optional or permissible inference of negligence which the jury can make. In a Res case, thee ultimate burden of proof remains with the plaintiff to convince the jury that a defendant was negligent and that such negligence caused the plaintiff’s injury.

Answer 58

Alternative liability creates a presumption of negligence the defendants must rebut.

Answer 59

The jury is asked to determine whether the negligence “directly caused or contributed to cause” the harm. The courts generally ask whether the plaintiff’s injury was “the natural and probable consequence” of the defendant’s negligence creating a difference

Answer 60

1. The traditional all or nothing approach | 2. The lost chance approach

Answer 61

Under this traditional approach a patient must prove that it is more probable than not that the defendant’s negligence caused the plaintiff’s injury. To satisfy this burden, the patient must have had a greater than 50% chance of survival prior to the negligence otherwise it could not be shown by a preponderance of the evidence that the patient was likely to survive but for the doctor's negligence.

Answer 62

Under this modern approach, a patient may collect damages proportional to the change in chance of survival they would have had if they had been treated correctly versus the chances in survival they have as a result of the negligence. If a patient would have had a 50% chance and ended up having a 20% chance due to the negligent care, that patient could recover 30% of the total death benefit.

Answer 63

Missouri uses the modern, lost chance rule but requires that the lost chance must represent a material loss of odds of survival (minuscule changes in the chance of survival won't be recoverable)

Answer 64

Proximate cause the reasonable connection between the act or omission of the defendant and the harm suffered by the plaintiff

Answer 65

1. Foreseeability 2. Substantial Factor 3. Scope of Risk

Answer 66

Palsgraf v. Long Island Railroad Co (Cardozo wrote the majority opinion)

Answer 67

1. Was the person harmed the type of person who would foreseeably be harmed by such negligence? 2. Was the harm the type of harm that would foreseeably result from such negligence?

Answer 68

An actor will be seen as proximate cause where: 1. The actor's conduct was a substantial factor in causing the harm AND 2. There is no rule relieving the actor from liability. But such an act may not be proximate cause where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.

Answer 69

An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious. An actor is not liable for harm when the tortious aspect of the actor’s conduct was of a type that does not generally increase the risk of that harm Ask: Is the injury within the scope of risk that makes the defendant's actions negligent? If not, then there will be no proximate cause. Missouri courts have not expressed a view on this approach.

Answer 70

An intervening intention or criminal act may relieve a negligent defendant of liability, except where the harm caused by the intervening act is within the scope of risk created by the defendant’s conduct or where the intervening act is reasonably foreseeable. Incidents that flow naturally from the initial negligence (such as medical negligence) are considered foreseeable.

Answer 71

Missouri follows the general rule that a person injured due to negligence of another is entitled to recover all damages proximately traceable to the original negligence, including subsequent aggravation which the law regards as a natural result of the original injury, even though some intervening agency may have contributed to the result.

Answer 72

Missouri courts generally say that proximate cause depends on whether the plaintiff’s injury was “the natural and probable consequence” of the defendant’s negligence. They describe this as a “look back” test rather than a “pure foreseeability test,” but acknowledge that it “probably includes a sprinkling of foreseeability Jury instructions for civil cases in Missouri use the word “direct,” asking the jury to decide whether the injury was a “direct result” of the negligence or whether the negligence “directly caused or directly contributed to cause” the harm.

Answer 73

A defendant's actions will not generally be deemed proximate cause where the harm was not foreseeable.

Answer 74

A defendant will be liable for the harm regardless whether the severity was foreseeable. Missouri follows the general rule that a person injured due to negligence of another is entitled to recover all damages proximately traceable to the original negligence, including subsequent aggravation which the law regards as a natural result of the original injury, even though some intervening agency may have contributed to the result.

Answer 75

Liability for negligence will not lie unless it was reasonably foreseeable that the conduct would result in injury to the victim.

Answer 76

Majority view: Suicide is not foreseeable. The majority approach does allow for an exception where a person’s negligence causes the other person to go insane which results in their suicide Minority view: Suicide foreseeability is a question for the jury. Missouri follows the minority rule - the focus is on whether the suicidal act was a “direct result” of the defendant’s negligence

Answer 77

Even if you could not have known about a weakness that would exacerbate the harm caused by your negligencee, you are still liable. You must take the plaintiff as you find him.

Answer 78

If you create danger, you should foresee that someone might try to attempt a rescue. If the rescuer is harmed during the attempted rescue, they are able to recover for harm because it is always foreseeable that a rescuer will try to intervene. In Missouri, to apply this doctrine the rescue attempt must be immediate and spontaneous.

Answer 79

Majority rule - The rescue doctrine applies to attempts to rescue people and property Minority rule - The rescue doctrine applies only in attempts to rescue people, rescues of property are never foreseeable. Missouri follows the minority approach.

Answer 80

1. Was the accident what the legislature had in mind when creating the statute? 2. Was the injured party part of the group meant to be protected? 3. Was the injury the kind that the statute was meant to prevent?

Answer 81

Missouri and some other courts have suggested that a different rule applies when the mentally impaired person is the plaintiff, rather than the defendant. These courts assert that even though mental problems are disregarded when deciding if a defendant was negligent, a plaintiff’s mental problems should be taken into account in deciding if the plaintiff was negligent.

Answer 82

1. Did the act or omission demonstrate a violation of the statute? 2. Was the plaintiff injured as a result? (The jury is not asked to determine whether the acts constituted negligence) This is the majority approach which allows for conviction based on only these factors. The minority approach allows for a rebuttable presumption of negligence.

Torts - Quiz 2 Flashcards

(106 cards)