Torts Rule Statements Flashcards
(255 cards)
1
Q
What are the three ways you can establish intent and how are they defined?
A
Specific intent: Acting for the purpose of bringing about the tortious consequence
General intent: Acting with knowledge to a substantial certainty that the tortious consequence will follow
Transferred intent: Acting with either specific OR general intent to commit 1/5 original writs [assault/battery/false imprisonment/trespass to land/trespass to chattels]
1 - Intend to batter person A –> assault person A
2 - Intend assault person A –> assault person B
3 - Intend to assault person A –> batter person B
2
Q
Does motive matter in terms of intent?
A
No
3
Q
Does mistake matter in terms of intent?
A
No, but accidents can matter.
[Ex: Thinking you’re on you’re own property but you’re actually on someone else’s v. tripping & falling onto someone else’s property]
4
Q
Who can have intent?
A
Children, cognitive differences, voluntarily impaired
5
Q
What are the four elements of battery?
A
(1) acting volitionally/consciously; (2) with the intent; (3) to cause; (4) the tortious consequence of contact with plaintiff’s person or something intimately connected with plaintiff’s person, which is harmful or offensive in dual intent jurisdictions
6
Q
What is the object of intent for battery?
A
Contact… not necessarily harm
7
Q
What are the four elements of assault?
A
(1) acting volitionally/consciously; (2) with the intent; (3) to cause; (4) tortious consequence of reasonable apprehension of imminent battery
8
Q
Does the plaintiff have to be aware of the imminent battery for assault?
A
Yes… can’t have reasonable apprehension if you don’t know what’s going on
9
Q
Is the “busy world” taken into account in terms of battery?
A
Yes… reasonable amount of contact we consent to
10
Q
What are the four elements of false imprisonment?
A
(1) acting volitionally/consciously; (2) with the intent; (3) to cause; (4) tortious consequence of unlawful confinement/restraint for any amount of time, against P’s will, to P’s knowledge (or in some jurisdictions harm) in a bounded area with no reasonable means of escape
11
Q
What is the majority jurisdiction in terms of false imprisonment?
A
Plaintiff must be aware of the confinement at the time of the confinement
12
Q
What is the minority jurisdiction in terms of false imprisonment?
A
Plaintiff must either be aware of the confinement at the time of the confinement or be harmed in the course of the confinement
13
Q
Does keeping someone out constitute false imprisonment?
A
No
14
Q
Is mere compulsion or fear of losing one’s job enough for false imprisonment?
A
No
15
Q
What are the elements of false arrest?
A
All elements of FI except this occurs when D claims power to make an arrest but doesn’t actually have legal authority to do so
16
Q
What are the four elements of intentional infliction of emotional distress?
A
(1) volitional/conscious/extreme/outrageous act; (2) with the intent (specific or general) or recklessness; (3) to cause; (4) the tortious consequence of extreme emotional distress
17
Q
How is IIED different from other intentional torts (elemental)?
A
Act – has to also be extreme & outrageous
Intent – only specific or general & can be reckless in alternative
18
Q
What is the standard for IIED?
A
Behavior exceeds all bounds of what could be tolerated by society
19
Q
What are the elements of trespass to land?
A
(1) acting volitionally/consciously; (2) with the intent; (3) to cause; (4) tortious consequence of direct/tangible invasion or entry onto the real property in the plaintiff’s possession
20
Q
Is damage to property required for trespass to land?
A
No, just entry
21
Q
What is the object of intent in trespass to land?
A
To be where you are/to put object where you put it… not necessarily to trespass (don’t have to know you’re trespassing; jus have to intend to place your body or object where it ends up)
22
Q
What is continuous trespass?
A
Failing to remove something when it’s no longer wanted/becomes unlawful to leave it
23
Q
Can a non-trespasser become a trespasser? How?
A
Yes, if they exceed the scope/time/purpose of their presence
24
Q
What is real property for the purposes of trespass to land? Does anything have to make contact with the earth?
A
Real property is the space in the immediate reaches above and below the land (included all fixtures on property)
Nothing actually has to touch the land… flying through airspace counts
25
What are the elements of trespass to chattels?
(1) acting volitionally/consciously; (2) with the intent; (3) to cause; (4) tortious consequence of unauthorized interference/intermeddling with the chattel of another IF (a) the quality/condition/value is depleted; or (b) the plaintiff is dispossessed for a substantial time; or (c) bodily harm to P is caused; or (d) harm to something in which P has legally protected interest is caused
26
What is the limit of recovery in trespass to chattels?
No nominal damages are available
Limited to return of chattel or reimbursement for time it was missing/needed to be substituted
27
What are the elements of conversion?
(1) acting volitionally/consciously; (2) with the intent; (3) to cause; (4) tortious consequence of dominion/control over a chattel that's so serious in nature it cannot be recovered & actor must pay the owner full value of the chattel
28
What are the factors influencing conversion?
Extent & duration of dominion/control; actors intent to assert right inconsistent with other's right of control; actor's good faith; extent & duration of resulting interference of right of control; harm done to chattel
29
In what ways can chattel be converted?
Acquiring possession; damaging/altering it; using it; receiving it; disposing of it; misdelivering it; refusal to surrender/return it
30
What recovery is available for conversion?
Nominal damages allowed if chattel had no value
If chattel did have value... remedy is full market value @ time of conversion
31
Who can recover for conversion?
Anyone in possession of the chattel at the time of conversion [doesn't matter if it's wrongful possession]
One converter can recover from another converter
32
What are the nuances of receiving stolen chattel?
-If it is stolen goods... the title did not pass & the purchaser is not protected
-If it is fraudulently obtained goods... the title did pass & the purchaser is protected
-If it is goods from a merchant who deals in "things of that kind"... purchaser is protected
33
What must be established before privileges and defenses for intentional torts may be used?
Prima facie cause of action! (an intentional tort must be proven before defenses are used)
34
What is the general rule of consent (defense of IT)?
Person who consents, or apparently consents, by words or conduct, to acts that would otherwise cause as intentional torts cannot recover damages for those acts
35
What is implied consent?
Manifestations of inward feelings; actions/behavior that indicate consent
Customs & rules of society influence implied consent
Private thinking doesn't override overt behavior
36
When can a doctor act in absence of express consent?
1. Patient is able to give consent
2. Risk of serious bodily harm if treatment is delayed
3. Reasonable person would consent under the circumstances
4. No reason to believe patient would refuse treatment
37
What is informed consent for doctors?
Requires physicians/surgeons to disclose risks of proposed medical/surgical treatments
38
Can consent be withdrawn?
Yes consent can be withdrawn at any time and new consent must be provided [unless it's not medically possible to cease procedure in context of medical doctors]
39
How does misrepresentation or fraud affect consent?
Invalidates consent if P is led to believe something about identity/circumstances that isn't true
40
What are the elements of self defense?
When a person (1) reasonably believes she is being or is about to be immediately attacked/battered, she may (2) use such force as is reasonably necessary/proportionate to protect against injuriesU
41
Is retreat required before use of non-deadly force in self-defense?
No
42
Is retreat required before use of deadly force in self defense in majority jurisdictions?
Not required if such force is necessary to prevent serious bodily injury/harm
43
Is retreat required before use of deadly force in self defense in minority jurisdictions?
Yes unless in your home
44
Does self defense cover retaliation?
No -- attack must be ongoing or imminent
Once threat is no longer imminent, privilege terminates
45
Is provocation enough for self defense?
No, verbal taunts are not enough for privilege of self defense
46
Are third party injuries covered under self defense?
Privilege is carried over to person B if harmed while defendant exercising self-defense against person A
47
Can trespassers recover against a plaintiff who employed privilege of self defense? When?
Yes if the force is excessive
48
Are mistakes allowed in self defense?
Yes reasonable mistakes allowed
49
What force is allowed for self defense?
Limited to that necessary to prevent harm presented by attack; proportionate; differences in age/size/gender considered
50
What are the elements of defense of others?
Person can (1) use reasonable/proportionate force to defend another when the person (2) reasonably (or in some jurisdictions correctly) believes that the other person would've been privileged to defend themselves
51
What is majority jurisdiction regarding reasonable belief in self defense?
Intervenor steps into the shoes of the person they're defending; privileged only when that person would've been privileged
52
What is minority jurisdiction regarding reasonable belief in self defense?
Intervenor privileged even when he's mistaken in his belief intervention is necessary if mistake was reasonable
53
What are the elements of defense of property?
Person may (1) use reasonable force to defend one's property against (2) unlawful intrusions (3) if either (a) conduct of intruder reasonably indicates request to leave would be useless/dangerous or (b) person requested intruder leave to no avail
54
What limits do privileged trespassers put on defense of property?
If intruder has privilege (like necessity)... can't exclude
If excluding trespasser would put them in harms way... can't exclude (unless trespasser is endangering personal safety of occupiers)
If you exclude (even by mistake) - liable for injuries
55
What force is allowed for defense of property?
Proportionate/reasonable (NEVER deadly force)
Policy concern -- value of life & limb outweighs possessor's interest in property
56
What is the general rule for recovery of property?
If property is already lost because (1) person obtained your property unlawfully, then (2) proper owner may use only peaceful means to recover property UNLESS (a) in fresh pursuit; (b) has demanded & been refused return of property [unless demand would be futile/dangerous]; and then (3) may use reasonable force under the circumstances
57
What is fresh pursuit in the context of recovery of property?
Prompt discovery of dispossession & prompt efforts to recover
Privilege expires if undue time elapses
58
What mistakes are allowed and what mistakes are not allowed in the context of recovery of property?
Allowance --> reasonable mistake as to force necessary to recover
Don't allow --> mistake with respect to situation as a whole
59
Who can you recover from in the context of recovery of property?
Can only recover from party who took the property from you [can't recover from innocent third party]
60
What is the Shopkeeper's Privilege?
Merchant has privilege to detain on (1) reasonable belief of shoplifting for (2) reasonable investigation (time/purpose/manner/scope)
61
How far (distance) does the shopkeeper's privilege extend?
To reasonable distance from the store
62
Are mistakes okay in the context of the shopkeeper's privilege?
If they are reasonable
63
What is the general rule for public necessity defense?
Person may interfere with real/personal property of another where interference is reasonably necessary (1) because it's actually reasonably apparently necessary to avoid threatened injury from natural or other force, and (2) because threatened injury is so substantially more serious than invasion undertaken to prevent it
64
Is public necessity defense a complete bar?
If the interference with real/personal property was for the public good/general human safety... it is an absolute defense & no liability attaches
65
Are mistakes allowed in context of public necessity defenses?
If they are reasonable
66
What is the general rule of private necessity?
Person may interfere with real/personal property of another where interference is reasonably necessary (1) because it's actually reasonably apparently necessary to avoid threatened injury from natural or other force, and (2) because threatened injury is so substantially more serious than invasion undertaken to prevent it
67
Is private necessity defense a complete bar?
When interference is to benefit person(s) who interfere or to protect any property from destruction/serious injury, the defense is qualified and the actor only pays damages for harm caused [even if act wasn't tortious]
68
Are punitive damages allowed for private necessity?
No
69
What are the limitations of the owner of land in the context of private necessity?
If owner ejects someone who is on their property out of necessity, they will be liable for all resulting injuries [no mistake allowed in terms of ejection]
70
What is the general rule of authority of law?
If someone is allowed to do what they do under the law, they are not liable for doing it
71
What is standard of arrest with warrant under authority of law defense?
(1) warrant should be valid on its face; (2) officer doesn't have to make inquiry into warrant if it appears valid; (3) protection offered if reasonable mistake is made in good faith, but not for excessive force
72
What is standard of arrest without warrant under authority of law defense?
Private citizens: prevent breach of peace/felony if its being committed/reasonably appears to be committed in their presence
Officers: information that allows reasonable belief felony was committed & that this person did it [citizen: felony has been committed for sure & reasonable to believe this person did it]
73
What is the standard for the defense of discipline?
There are several relationships which allows degree of orderly discipline [parent-child; military-subordinate]
Factors determining privilege: age, sex, condition of child, nature of offense, motive of offense, offense's influence on other kids, reasonable necessity, proportionality, permanent harm caused
74
What is the standard for the defense of justification?
If it seems unfair to hold defendant liable, but the facts don't align with other privileges... actions can be justified if reasonable & done to protect others from personal injury or to protect personal property under defendant's lawful control
75
Does the defense of discipline apply to those temporarily caring for a child?
Yes, but the force allowed is less
76
What is the B_LP analysis for determining duty in negligence?
B = burden of exercising precaution; P = likelihood of the injury occurring; L = gravity of the injury that may occur
If B>LP... don't have to exercise care
If B
77
What items, if left unattended, are considered unreasonably risky in terms of negligence?
Items that are inherently dangerous
78
Is failing to protect against a natural condition unreasonably risky in terms of negligence?
No
79
When must you take reasonable steps to prevent harm to others, in terms of negligence?
When there is a foreseeable which is substantial to others
80
What are the four elements of negligence?
(1) Duty: obligation to avoid engaging in unreasonably risky conduct
(2) Breach: via engaging in unreasonable conduct
(3a) Factual cause: cause in fact
(3b) Proximate cause: perceived the have significant relationship
(4) Damages: must exist in reasonably recognized type
81
What is the reasonably prudent person standard of care?
Obligation imposed upon all human activity to act as reasonably prudent person under same/similar circumstances & to take precautions of unreasonable risk of foreseeable harm to others
Someone of ordinary (a) cognitive ability; (b) rationality; (3) common knowledge
82
For the RPP in negligence, are mental attributes subjective or objective?
Objective [RPP doesn't take on mental attributes of the actor... intelligence; experience, impairment; disability]
83
What is the exception to the RPP objective mental attribute measure?
If actor has superior knowledge/abilities, RPP takes on those superior attributes
84
What is the majority rule for mental illness in terms of the RPP standard of care?
No allowance/consideration for mental illness even if it's unexpected or unforeseeable
85
What is the minority rule for mental illness in terms of the RPP standard of care?
Allowance for mental illness if not reasonable foreseeable or if it's completely unexpected
86
For the RPP in negligence, are physical attributes subjective or objective?
Subjective [RPP does take on the physical attributes of the actor... blindness; height; strength]
87
Are customs evidentiary or authoritative when determining the RPP standard of care?
Evidentiary
88
For the RPP in negligence, are emergency situations subjective or objective?
Subjective
89
What is the majority rule in terms of emergency situations when considering the RPP standard of care?
Standard of care which an ordinarily prudent person would exercise in the face of that emergency
90
What is the RPC standard of care in majority jurisdictions?
Standard of care which is reasonably expected from a child with like age/intelligence/maturity/training/experience
91
What is an exception to the RPC standard of care in majority jurisdictions?
Inherently dangerous/adult activities which require adult qualifications
In these instances, minors held to same standard of care as adults
92
What is the RPC standard of care in minority jurisdictions?
Rule of 7s
<7 -- incapable of acting negligently
7-14 -- presumed incapable of acting negligently (can be disproved)
>14 -- presumed capable of acting negligently (can be disproved)
93
Is the RPPro standard of care generally objective or subjective? What is the standard in general?
Generally an objective standard
Duty to exercise standard of care an ordinary member of the profession would in the same circumstances
94
When is expert testimony needed in RPPro?
When the professional is engaged in technical work which lay juror wouldn't understand without assistance
95
Does the RPPro apply a duty in cases of mere error in judgment?
No
96
In what circumstances can an attorney be held negligent in exercising an RPPro standard of care?
Losses to client due to lack of knowledge/skill ordinarily possessed by others in profession; failure to use reasonable care/diligence; failure to exercise good faith/best judgment; lack of due care
97
In what circumstances can an attorney not be held negligent in exercising an RPPro standard of care?
Mistake in point of law which hasn't been settled by the courts; mistakes in point of law which a reasonable/well-informed lawyer may also be confused about
98
What is the standard of care of doctors in RPPro category?
Standard of care that would be exercised by an ordinary member of the medical profession (in skill, knowledge, care normally possessed/exercise)
99
How is the standard of care different for doctors if they are specialists (under RPPro)?
Must exercise standard of care exercised by ordinary specialist
100
For doctors under RPPro standard, are customs evidentiary or controlling?
Controlling
101
What is the minority [strict locality] approach to RPPro (Doctors) "reasonable standard of community"?
Reasonable standard of conduct expected of other members of medical profession in same locality/community
102
What is the minority [national] approach to RPPro (Doctors) "reasonable standard of community"?
Standard of conduct expected of other members of medical profession nationwide
103
What is the majority [same/similar locality] approach to RPPro (Doctors) "reasonable standard of community"?
Standard of conduct expected of other members of medical profession is same or similar localities/communities
104
What is the additional requirement of doctors under the RPPro standard of care?
Informed consent
105
What is the majority rule for informed consent in terms of doctors under the RPPro standard of care?
Reasonable doctor standard - what would a reasonable/ordinary doctor disclose in the situation
106
What is the minority (reasonable patient) rule for informed consent in terms of doctors under the RPPro standard of care?
Reasonable patient standard - what would a reasonable patient want to know to make a decision in this situation
107
What is the minority rule [patient] for informed consent in terms of doctors under the RPPro standard of care?
Patient standard - what would this patient want to know in the situation
108
What does a patient have to show if they want to assert lack of informed consent [RPPro doctors]?
Failure to adequately inform of material risk; if she had been informed, she wouldn't have consented; adverse consequences that were not mentioned to her by the doctor occurred
109
What does a medical professional have to disclose for informed consent under RPPro standard of care?
Material risks [any risks likely to influence patient's decision]; alternative treatments; nature of procedure; physician's research interests; physician's economic interests; personal interests unrelated to patient's health that may affect physician's professional judgment
110
What are the exceptions to obtaining informed consent under the RPPro standard of care for medical professionals?
Risk is or should be known to the patient; disclosure would have been detrimental to necessary treatment of especially sensitive/vulnerable patient; emergency situations
111
What is the judicially imposed standard of care?
Standard of care imposed by judges [rare!]
112
When and why are judicially standards of care imposed?
When the risk is so great that the court doesn't want any questions as to the standard of care of a reasonable person; when there is a high risk of injury and bright line rule needs to be drawn
113
What are the two judicially imposed standards of care?
1: Stop/look/listen (at railroad tracks)
2: Range of vision rule (can't be driving so fast that you aren't able to stop within the distance you can see ahead of you)
114
What is the statutory standard of care? What does it show?
Statute imposes specific duty for protection/benefit of others
If shown that statute is violated... conclusive proof of negligent behavior (still need causation + damages)
115
What is the test to determine if a statute can have a statutory standard of care imposed?
1: Is the party being protected by the statute the party harmed in the present case?
2: Is the harm being prevented by the statute the harm sustained in the present case?
3: What is the appropriateness of imposing civil liability? [Would common law otherwise find duty under facts? Would incorporating duty allow for disproportionately large monetary liability for minor offense? Does statute clearly define prohibited conduct/were potential defendants put on notice? Would imposing duty create liability without fault? Does injury directly/indirectly result from violation?]
116
What statutes are not eligible for statutory standard of care?
Statute which already has remedy written into it
Statute considered to not provide private cause of action in individual (i.e. statute meant to protect public as a whole)
117
What is the general rule of failure to act in terms of special duties in negligence?
Unless D assumed city to act or is in a special relationship with P... D has not duty to act for the benefit of others and is not liable for pure failure to act
118
What are the exceptions to the general rule of failure to act in terms of special duties in negligence?
1: Defendant/defendant's instrumentalities created the risk/caused the harm
2: Defendant assumes duty via action/promise to act [you don't have to act... but when you do... must see it through]
3: Defendant is in special relationship with the plaintiff or another defendant which requires action [particularized knowledge of risks because of relationship]
-Husband-wife: If burden of action is less than potential harm/likelihood... duty to act imposed
-University-student: Duty to warn students if imminent risk
-Therapist/doctor-patient: If doctor knows patient is danger to self or others... duty to act
4: Statutorily imposed standard of care
119
What is the standard of care in terms of pure economic loss?
No general duty to avoid unintentional infliction of economic loss on another
Parasitic economic damages are recoverable
120
What is the standard of care under negligent infliction of emotional damage?
Claim can go to the jury if:
Defendant is negligent; ED if foreseeable consequence of negligent; AND severe ED is factually & proximately caused by negligence
121
How is foreseeability determined in terms of direct victims in negligent infliction of emotional damage?
Four tests:
Was there physical impact immediately before ED?
Were there physical symptoms? Was ED severe/diagnosable as specific condition immediately after ED?
Was plaintiff in the zone of danger?
Did defendant send an errant death message or mishandle a corpse?
122
How is foreseeability determined in terms of indirect victims in negligent infliction of emotional damage?
Thing test for bystanders outside zone of danger:
1: Closely related
2: Present at the scene
3: Personally observed/otherwise perceived
4: Physical symptoms
123
What is an owner/occupier of land's standard of care to those off premises in terms of natural conditions?
Generally no duty to alter natural conditions to protect people off property EXCEPT FOR trees [RPP]
124
What is an owner/occupier of land's standard of care to those off premises in terms of artificial static conditions?
Generally no duty to protect those of premises EXCEPT FOR if occupier knows/should've known of unreasonably dangerous risk & failed to take precautions and/or occupier knows/should've known passerby could be injured by condition & failed to take reasonable precautions
125
What is an owner/occupier of land's standard of care to those off premises in terms of artificial active conditions?
Generally RPP duty to those off premises
126
What is a trespasser in terms of owners & occupiers standard of care to those on premises?
Anyone on property without permission/consent of lawful possessor
127
What is an invitee in terms of owners & occupiers standard of care to those on premises?
Business patrons who come onto property for commercial benefit of owner or to use public amenity during normal business hours
128
What is a licensee in terms of owners & occupiers standard of care to those on premises?
[Ppl we like] Social guests, emergency responders, people you invite over to your home
129
What is the standard of care to undiscovered trespassers with respect to active operations? [CL]
No duty
130
What is the standard of care to undiscovered trespassers with respect to static operations? [CL]
No duty
131
What is the standard of care to anticipated/discovered/tolerated trespassers with respect to active operations? [CL]
Reasonable care
132
What is the standard of care to anticipated/discovered/tolerated trespassers with respect to artificial static operations? [CL]
Reasonable care in terms of dangerous conditions/operations
133
What is the standard of care to anticipated/discovered/tolerated trespassers with respect to natural conditions? [CL]
No duty
134
What is the standard of care to licensees with respect to active operations? [CL]
Reasonable care
135
What is the standard of care to licensees with respect to static operations? [CL]
Duty to warn/make safe with respect to known, concealed dangers
136
What is the standard of care to invitees with respect to active operations? [CL]
Reasonable care
137
What is the standard of care to invitees with respect to static operations? [CL]
Reasonable care [includes what owner knew/should've known or could've discovered through reasonable inspection]
138
What is the standard of care to children who trespass? [CL]
Possessor of land is subject to liability for physical harm to children trespassing caused by artificial condition if...
1: Possessor knew/should've known child likely to trespass
2: Condition is one which possessor knew/should've known would involve unreasonable risk of death/serious bodily harm to children
3: Children don't recognize risk because they are so young
4: Utility of maintaining & burden < risk to children
5: Possessor fails to exercise reasonable care to eliminate danger/otherwise protect children
139
What is the modern standard of care/duty imposed on licensees/trespassers/invitees?
Status on the entrant matters less... courts impose obligation to act as RPP under the circumstances
140
What is the common law rule in terms of duties between lessors/lessees?
No duty
141
What are the exceptions to the common law rule in terms of duties between lessors/lessees?
1: Duty w/ existing defects known to lessor, unknown to lessee
2: Duty w/ conditions dangerous to people outside property
3: Duty when premises leased for admission of public
4: Duty regarding parts of land retained under lessor's control which lessee entitled to use [duty to protect against foreseeable criminal conduct in these areas]
5: Duty where lessor contracts to repair
6: Duty if lessor is negligent in making repair
142
What is the modern standard in terms of duties between lessors/lessees?
RPP standard through which lessor owes duty of ordinary care under all circumstances towards tenants and all others on premises with permission to be there
143
What are the three effects of statutorily imposed standards of care?
Negligence per se (majority); presumption of negligence; evidence of negligence
144
What is "negligence per se" in respect to effects of statutorily imposed standards of care?
Majority rule
If there is found to be duty imposed on the statute, unexcused violation of that statute is negligent behavior
Excuses must be legally recognized
145
What is "presumption of negligence" in respect to effects of statutorily imposed standards of care?
If there is found to be duty imposed on statute, unexcused violation of that statue is negligent behavior
Excuses don't have to be legally recognized [actor incapacity; actor didn't know/shouldn't know of necessity of compliance; unable to comply after reasonable care/diligence; emergency not due to town misconduct; compliance would create greater risk to self/others]
146
What is "evidence of negligence" in respect to effects of statutorily imposed standards of care?
If there is found to be a duty imposed on statute, unexcused violation of that statute is just evidence there's been negligent behavior/breach of established standard of care
147
What is direct evidence in terms of proving causation in negligence?
Best/most preferable kind of evidence
Ex: affirmative video; statement of witnesses
148
What is circumstantial evidence in terms of proving causation in negligence?
Kind of evidence usually used
Allows judge/jury to make inferences about what would arise under reasonably proven facts
149
What are the elements/requirements of res ipsa loquitur (causation)?
(1) Injurious event
(2) Likely wouldn't have occurred without negligence [common life experiences]
(3) Connected to defendant because defendant had duty to exercise reasonable care with respect to injurious event because harm-causing instrument was under defendant's exclusive control
[3a] Some jurisdictions don't require exclusive control... P must sufficiently eliminate other responsible causes
150
When is RIL not applicable?
When responsibility could be divided/cause is unknown/alternative causes present
151
What in required in RIL in medical malpractice?
Expert testimony required to determine if action is outside scope of accepted community standard of care
152
What are the three procedural effects of RIL?
Inference of negligence (majority); presumption of negligence (minority); presumption w/ burden shift (minority)
153
What is the procedural effect of "inference of negligence" in RIL?
Case goes to jury to make final determination
154
What is the procedural effect of "presumption of negligence" in RIL?
Requires jury to find defendant negligent if they offer no proof to rebut [if proof... jury makes final determination]
155
What is the procedural effect of "presumption of negligence with burden shift" in RIL?
Burden of proof shifts to defendant to prove by preponderance of evidence that injury was not caused by their negligence
156
What is the focus of a factual cause analysis in negligence?
The negligent behavior (NOT the harm resulting)
157
What are the four versions of the test for factual cause in negligence?
But for/sine qua non
Substantial factor
More likely than not
Hypothetical alternative
158
What is the but for/sine qua non test for factual cause in negligence?
The harm would not have occurred if it weren't for (but for) the defendant's negligence
159
What is the substantial factor test for factual cause in negligence?
The harm would not have occurred absent the negligent behavior because the defendant's negligent behavior was a substantial factor in creation of harm
160
What is the more likely than not test for factual cause in negligence?
Is it more likely than not (51%) that defendant's actions led to harm consequence?
161
What is the hypothetical alternative test for factual cause in negligence?
If negligent behavior wasn't present, would harm still occur? (Yes... no factual cause; no... factual cause)
162
What is the standard of the factual cause analysis in general?
Must be more likely than not defendant OR more likely than not alternative cause [to convict or allege alternatives)
163
In cases of scientific uncertainty, what must the plaintiff show when causal connection is not obvious when analyzing factual cause in negligence?
Expert testimony (likely) needed to show it is more likely than not that the injury arose from the defendant's negligence
-Recommended but not required if in wheelhouse of layman
-Required if not in wheelhouse of layman
164
In cases of scientific uncertainty, what is the traditional rule when the causal connection is not obvious and the plaintiff may need to rely on the harm caused, when analyzed factual cause in negligence?
If chance of recovery that was lost through the negligent behavior is less than 51%, there is so factual cause
165
In cases of scientific uncertainty, what is the majority rule when the causal connection is not obvious and the plaintiff may need to rely on the harm caused, when analyzed factual cause in negligence?
Loss of chance theory - seeking recovery for the lost chance of possible recovery (not the total harm caused)
If it is more likely than not the the defendant caused the loss of chance of possible recovery for which the plaintiff is seeking relief, there is factual cause
*Reframes loss & damages
166
In cases of scientific uncertainty, what is the minority rule when the causal connection is not obvious and the plaintiff may need to rely on the harm caused, when analyzed factual cause in negligence?
If chance of recovery that was lost through the negligent behavior is less than 51%, the jury can consider the claims to determine if negligent behavior was substantial factor in the harm
167
What is the standard and general rule for "neither alone" cases in analyzing factual cause in negligence?
Standard: Separate acts of negligence combine to produce single injury but neither act alone could have cause the injury
Rule: Actors are jointly & severally liable, unless one of the defendants can show the other, by itself, could meet the 51% threshold
168
What is the standard and general rule for "either alone" cases in analyzing factual cause in negligence?
Standard: Separate acts of negligence combine to produce single injury but either alone could have caused the injury
Rule: Both actors are liable if they were substantial factors in creating the harm
-If the other cause wasn't present, would your cause lead to the same damage/harm? Yes - liable; No - not liable
169
How does the burden shift in "neither alone" and "either alone" cases when analyzing factual cause in negligence?
Burden shifts to the defendant to "point the finger" at someone else if they do not wish to be held liable
170
What is the standard/situation which leads to an uncertain cause analysis of factual cause in negligence?
There are several negligent actors, but only one caused plaintiff's harm, and plaintiff doesn't know exactly which one caused it
[ex: three people shoot guns negligently, only one bullet hits P]
171
What is the test for uncertain cause analysis of factual cause in negligence when the plaintiff joins all negligent parties as defendants?
If the plaintiff joins all negligent actors as defendants, her job is done & burden shifts to defendants to show they were not cause of the injury
172
What is the test for uncertain cause analysis of factual cause in negligence when the plaintiff does not join all negligent parties as defendants?
If plaintiff doesn't join all negligent actors as defendants, but she does join a substantial share of the market (~91%) causing injury to her, her job is done & burden shifts to defendants to show they were not cause of the injury
173
What is the five step analysis of proximate cause in negligence?
Step 1: What was the defendant's negligent conduct?
Step 2: What was the foreseeable risk of defendant's conduct?
Step 3: What was the harm that operated and to what plaintiffs [for what does P seek relief]?
Step 4: What is the relationship between foreseeable risk & harm caused?
Step 5: What proximate cause rule/principle explains the outcome? [basic principles; eggshell skull; rescue doctrine; etc]
174
What are the general rules of proximate cause in negligence?
-Harm caused MUST be foreseeable & class of plaintiff harmed MUST be foreseeable
175
In proximate cause in negligence, does the defendant have to foresee the specific type of harm the plaintiff sustained? What four nuances of foreseeable harm are there?
No the defendant does not have to foresee the specific harm caused to plaintiff - general nature/kind of harm
So...
-Harms foreseeability risked by negligent conduct
-Harms greater in extent than anticipated, but foreseeably risked by negligent conduct
-Harms brought about in unanticipated manner, but foreseeably risked by negligent conduct
-Harms experienced by egg shell skull plaintiff
176
In proximate cause in negligence, what are the five classes of intervening causes, which may become superseding causes?
Intervening criminal conduct, intervening rescuers, intervening suicide, intervening drunk driver, intervening generation
177
In proximate cause in negligence, what was the original rule for intervening criminal conduct?
Negligent defendant was not liable for harms caused by intervening criminal conduct
178
In proximate cause in negligence, what is the modern rule for intervening criminal conduct?
If intervening criminal conduct was foreseeable risk of defendant's negligence, it is not a superseding cause and defendant is still liable
179
In proximate cause in negligence, what are the four special cases in which criminal acts do not become superseding causes?
1. D has duty to protect P
2. Ds affirmative action destroys protection P had in place
3. D brings P into contact with someone he knew/should have known would be likely to commit a crime
4. D has taken custody of dangerous criminal and fails to restrain him such that he harms P
180
In proximate cause in negligence, what is the general rule for intervening rescuers?
If (1) plaintiff acted reasonably both (a) in determining imminent need for rescue, and (b) effectuating rescue, and (2) defendant's negligence caused reasonable need for rescue... defendant retains liability for harm to rescuer
181
In proximate cause in negligence, what is the general rule for those escaping danger (under intervening rescuers)?
Defendant is liable for injuries because plaintiff is escaping danger that defendant created
182
In proximate cause in negligence, what is the general rule for those seeking cure/relief (under intervening rescuers)?
Defendant is still liable for injuries because defendant's negligence caused plaintiff to seek that cure/relief
183
In proximate cause in negligence, what is the general rule for intervening rescue of rescuer?
Can be attached to original negligent actions of the defendant
184
In proximate cause in negligence, what is the exception to intervening rescuers?
Professional rescuers - can't recover in negligence is rescue is undertaken in kind of work professional does [DOES NOT have to be in line of work]
185
In proximate cause in negligence, what was the original rule regarding intervening suicide?
Suicide was not a foreseeable consequence of negligence [typically superseding cause as long as person knew what they were doing]
186
In proximate cause in negligence, what is the modern trend regarding intervening suicide?
If facts show that decedent's suicide resulted from "irresistible impulse" caused by organic brain damage which was caused by defendant's negligence, D may be proximate cause of death
187
In proximate cause, what is the general rule regarding intervening drunk drivers?
Law is still evolving but best practice to take your guest's keys
188
In proximate cause, what is the general rule regarding intervening generations?
When mother negligently acted against and thus daughter was harmed
[DES medicine cases when mother took the medicine while pregnant with kid & kid sustained harms/deformities]
189
What is the eggshell skull doctrine?
You take your plaintiff as you find your plaintiff
If plaintiff is more physically/mentally fragile... once negligent action is taken... you take em as you find em (subjective)
190
Does the plaintiff in a negligence case have a duty to mitigate? What is the effect of this duty, if so?
Yes, plaintiff's in negligence actions have a duty to mitigate
Plaintiffs cannot recover for additional injuries caused by their own failure to mitigate
191
What is joint and several liability?
Each of several tortfeasors jointly liable with the others for amount of judgment against them & each individual is also liable for the whole amount
[Joint - all liable together;
Several - all liable on own]
192
When does joint and several liability arise?
Tortfeasors acted in concert; tortfeasors failed to person common duty to plaintiff; tortfeasors acted independently to cause indivisible harm
193
What are the three common modifications of joint and several liability?
Retain with pro rata contribution
Retain with relative fault contribution
Abolish joint and several in favor of pure several liability
194
What does it mean for a jurisdiction to retain joint & several liability with relative fault contribution in negligence damages?
Plaintiff can collect full amount from any defendant, and each defendant is liable only for the amount of fault they are liable for
BUT it is the defendant's burden to find other defendants to receive contribution from
195
What does pure several liability mean in negligence damages?
Plaintiff can only collect from each defendant the percentage fault that is assigned to them
BUT it is the plaintiff's burden to find other defendants
196
What does it mean for a jurisdiction to retain joint & several liability with pro rata contribution?
Plaintiff can recover full amount from any defendant, and each defendant is liable for equal shares of liability [i.e. 2 defendants = 50/50]
BUT it is the defendant's burden to find other defendants to collect contribution from
197
What is a satisfaction? How does this relate to Ps damages in negligence?
What plaintiff may receive from multiple tortfeasors
Plaintiff may collect only one full satisfaction of the judgment
198
How are partial satisfactions credited?
Partial satisfactions can be credited to other defendants on the hook for full judgment either on dollar for dollar basis or percentage basis
199
What is a release?
Extinguishes plaintiff's claim; release can be as broad or specific as the parties wish via reflection in release language
200
What is a covenant not to sue?
Eliminates plaintiffs ability to sue parties who are party to the covenant
201
What is contribution in context of negligence damages?
Defendant's ability to get partial reimbursement from other tortfeasors
202
When can a defendant get contribution and when can't a defendant get contribution in a negligence action?
Can:
-Pays more than share AND other tortfeasors not otherwise protected against contribution claims
Can't:
-If she is intentional tortfeasor
-From an immune tortfeasor
-From settling tortfeasor
203
What is indemnification?
Allows defendant to shift entire cost of judgment/settlement to another whose liability to plaintiff isn't based upon his/her own wrongdoing but upon his/her relationship with tortfeasor seeking indemnification
204
When can a defendant get indemnification?
-Through indem. hold harmless clause in contract
-Through relationship between wrongdoer and entity responsible for wrongdoer's conduct [employer-employee; etc.]
205
Can a party decide later that they want to change a settlement they previously agreed upon?
Not usually - generally settlement is final & enforceable after agreed to by all parties even if they decide later they don't like the terms anymore
206
What is contributory negligence in terms of a defense for negligence?
If plaintiff acts negligently/has some hand in causing own injury via negligence... there is a complete bar to recovery
207
What are the three exceptions to the complete bar in contributory negligence jurisdictions?
-Defendant engaged in wanton/intentional/reckless conduct
-Defendant has special relationship with plaintiff under statute/otherwise has a duty to protect plaintiff from own risky conduct
-Defendant had last clear chance to avoid injury [party with last clear chance bears the loss]
208
What is the last clear chance doctrine in contributory negligence?
D actual knowledge + plaintiff helpless = D last clear chance
D constructive knowledge + plaintiff helpless = D maybe last clear chance
D actual knowledge + P inattentive = D maybe last clear chance
D constructive knowledge + P inattentive = P last clear chance
209
What is pure comparative negligence in the context of negligence defenses?
Each party can recover for any % of their harm that isn't attributable to their own fault/negligence
210
What is "modified not as great as" comparative negligence in the context of negligence defenses?
Plaintiff's negligence isn't as great as defendants? P can recover [P fault max 49%]
211
What is "modified not greater than" comparative negligence in the context of negligence defenses?
Plaintiff's negligence isn't as great as defendants? P can recover [P fault max 50%]
212
What are the effects of comparative negligence on the legal landscape?
-Jury instructions [some courts give instruction on the impact of fault assigned, some don't]
-Gets rid on contrib neg
-Joint & several not available in comparative negligence because comparing P liability to D liability
213
If there are multiple tortfeasors in a comparative negligence jurisdiction, whose negligence is compared to whose?
All defendant's fault will be aggregated and compared to plaintiff's total fault
214
What are the elements of the comparative negligence defense of express assumption of risk?
Made via contract... may be enforced if contract is valid and:
1. Language/effect of release and liability is clear/unambiguous; AND
2. Injury occurs within the scope of those clear terms; AND
3. Release of liability isn't a violation of public policy [consider Tunkl factors]
215
What are the Tunkl factors in terms of express assumption of risk as a defense to negligence?
1. Type of business generally thought suitable for public regulation
2. Service is that of great importance to public/often practical necessity
3. Party holds self out as willing to perform service for any member of the public (generally)
4. Party seeking exculpation has bargaining power against member of public seeking service
5. Confront public with contract of adhesion & makes no provision where purchaser can pay additional fees/obtain protection against negligence
6. Purchaser is placed under control of seller subject to exculpatory clause
216
What are the elements of the comparative negligence defense of implied assumption of risk?
Made via conduct... may be enforced when:
1. Plaintiff has actual knowledge of the risk; AND
2. Appreciates the quality of the risk; AND
3. Voluntarily choses to confront risk when faced with reasonable alternative course of action
217
What are the elements of a claim of strict liability?
(1) Absolute duty; (2) causation [proximate & factual]; (3) damages
218
Under strict liability, what is the duty regarding wild animals?
SL is animal is non native to area & introduced OR reduced indigenous wild animal to possession/control
219
Under strict liability, how do you determine whether an animal is wild or domestic?
Is it commonly kept household pet based on reasonable norms of the community?
220
Under strict liability, what is the duty regarding domestic animals?
SL is owner/keeper/harborer knows or has reason to know that domestic animal has vicious propensities abnormal to the class to which it belongs
221
Under strict liability, what is the duty regarding trespassing farm/wild animals?
Owners of animals likely to roam & do damage = SL for foreseeable harms caused
222
Under strict liability, what are the six factors to consider in analyzing duty for abnormally dangerous activities?
1. Existence of high degree of risk of harm to person/land/chattels of another
2. Likelihood harm that results will be great
3. Inability to eliminate risk by exercise of reasonable care
4. Extent to which activity is not matter of common usage
5. Inappropriateness of activity to place where carried on; and
6. Extent to which value in community is outweighed by dangerous attributes
223
How have the factors for duty for abnormally dangerous activities been condensed?
1. Activity creates foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
2. Activity is not one of common usage
224
In analyzing whether an activity is ultra-hazardous for purposes of abnormally dangerous activities, what is the focus?
Duty only extends to the precise hazard which makes the activity ultrahazardous in the first place [thing doesn’t necessarily have to be dangerous… the activity has to be dangerous]
225
How is factual cause measured in strict liability?
Same as everything else... but for/hypothetical alternative test
226
How is proximate cause measured in strict liability?
Same as everything else... foreseeable risk to foreseeable plaintiffs = PC
227
When are acts of god superseding causes in strict liability?
When they are unforeseeable
228
What are the defenses for strict liability? When does each apply?
Assumption of risk: P voluntarily undertaking risk which causes harm
Comparative negligence: Ps recovery in SL reduced by percentage of comparative fault assigned to plaintiff
229
What are the elements of a private nuisance?
Plaintiff must show that defendant property owner or possessor conduct was: i. Intentional or unintentional
ii. Non-trespassory
iii. Invasion
iv. That substantially AND
v. Unreasonably
vi. Interfered with his interest in private use & enjoyment of land
230
What is a nuisance?
Tort for incompatible land use between neighbors
231
In the first element of private nuisance, what is the difference between requirements for intentional & unintentional?
-Intentional & unreasonable: Acts for purpose of creating nuisance/knows that nuisance is resulting from conduct/knows to substantial certainty nuisance stemming from conduct [intent to ACT not to harm]
-Unintentional & reckless/negligent/ultra-hazardous
232
In the second element of private nuisance, what does nontrespassory mean?
-Not physical/tangible invasion
-Not infringing on right to exclude
233
In the third element of private nuisance, what is an invasion?
Interference of unwanted activity
234
In the forth element of private nuisance, what does substantially mean?
-Objective standard for average/reasonable person of particular locality
-More than slight inconvenience/petty annoyance
-Not a one off – continuous/material/physical discomfort/injury to health or property
235
In the fifth element of private nuisance, what does unreasonably mean?
Objective standard for normal person of particular locality
-Character of neighborhood/social expectations/suitability of that area for use at issue
-Character/extent of Ps harm v. Ds usefulness
-Priority in time [i.e. coming to nuisance]
-Burden of P or D to avoid harm [who is the cheapest cost avoider]
-Social value society attaches to Ps type of use/enjoyment v. Ds activity
236
What are the remedies for private nuisance?
i. Compensatory damages
ii. Require defendant to “buy out” plaintiff through permanent damages
iii. Injunction [temp or permanent]
Compensated injunction
iv. Abatement by self-help
237
What is compensatory damages for private nuisance?
Gravity of harm outweighs utility of conduct or utility of conduct outweighs gravity of harm – D must sometimes compensate P for the damages caused
238
What does is mean if a defendant has to "buy out" a plaintiff in private nuisance?
-Gravity of harm outweighs utility of conduct but injunction would be unfair/impose too much burden on society or handful of neighbors
-Defendant has option of “purchasing” ability to continue nuisance by buying out plaintiff
239
What is an injunction in private nuisance?
Gravity of harm outweighs utility of conduct, plaintiff most likely to get injunction requiring abatement of nuisance
240
What is a compensated injunction in private nuisance?
-Gravity of harm outweighs utility of conduct but it’d be unfair to defendant to suffer costs of abating nuisance [bc P came to nuisance or lots of people dependent upon conduct of defendant]
-Plaintiff pays for defendant to stop/move/etc.
241
What is abatement by self help in private nuisance?
-Can abate nuisance after notice to defendant & refusal to act
-Extends only to reasonable actions
242
What defenses are available for private nuisance, and when does each apply?
Contributory neg = negligence basis for liability
Assumption of risk = SL basis for liability
Consent = intent basis of liability
Coming to nuisance = nuisance basis of liability
243
What are the elements of public nuisance?
-Substantial, unreasonable interference with public right AND
-Particular harm that differs not merely in degree from harm suffered by other members of public; AND
-Particular harm was suffered in exercise of public right
244
What is the first question that must be asked in products liability claim?
Question 1: What is wrong with this thing?
245
What does a manufacturing defect refer to in products liability?
-Product departs from intended design &
-Product is dangerous beyond expectation of ordinary consumer
246
What does a design defect refer to in products liability?
-Product has inherently dangerous propensities as designed that are not contemplated by ordinary consumer &
-Less dangerous alternative is practically feasible/reasonable
247
What does a warning/instructions defect refer to in products liability?
-Product as designed & manufactured has foreseeable dangers that manufacturers/sellers knew or should’ve known about that may not be apparent to users &
-Product failed to warn of those dangers or provide appropriate instructions about safe use
248
What is the second question that must be asked in products liability claim?
Question 2: What is your basis of fault? [Negligence; SL; warranty]
249
What is an express warranty in products liability?
Guarantee [affirmative of factor/promise] made by seller about product that is part of bargain
250
What is an implied warranty of merchantability in products liability?
Product generally acceptable & reasonably fit for ordinary purposes for which it is being sold
251
What warranties can be disclaimed/excluded in products liability?
Sellers can, if done correctly (VERY specifically), disclaim implied warranties but they usually cannot exclude express warranties
252
What is the third question to ask in a products liability claim?
Question 3: Are there any defenses based on theory of liability?
253
What is jurisdictional duty to "fence out" in SL?
Cant recover from cattle farmer whose cow leaves property and comes onto yours unless you have a fence
254
What is jurisdictional duty to "fence in" in SL?
Majority -- SL flows unless cattle farmer has fence to keep animals in
255
What is an implied warranty of fitness for particular use in products liability?
Product is fit for particular purpose in cases in which seller knows of particular purpose for which the product is being purchased & buyer relies on seller’s skill/judgment in supplying product
