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Torts > Big Topics > Flashcards

Big Topics Flashcards

1
Q

Prima Facie Case of Negligence

A
  1. Duty to conform to a specific standard of conduct against an unreasonable risk of injury
  2. Breach of that duty
  3. The breach is the (1) actual and (2) proximate cause of plaintiff’s injury; and
  4. Damages
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2
Q

To whom is a duty of care owed?

A

To all foreseeable plaintiffs

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3
Q

Who counts as a foreseeable plaintiff under the majority view?

A

Under Palsgraf, anyone in the zone of danger. If you’re not within the zone of danger, you CN recover.

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4
Q

What is the basic SOC?

A

RP.

  • objective
  • defendant’s mental deficiencies and inexperience are not taken into account, i.e. stupidity is no excuse
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5
Q

When does a doctor breach their duty to disclose the risks of treatment?

A

when they fail to disclose a risk that was serious enough that a RP in the patient’s position would have withheld consent on learning of the risk

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6
Q

SOC for children?

A

children of like age, education, intelligence, and experience. subjective standard. child under five years old is usually without the capacity to be negligent

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7
Q

what SOC do common carriers and innkeepers have?

A

very high degree: they are liable for even slight negligence

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8
Q

what is the general duty of a possessor of land to those off the premises?

A

there is no duty to protect one off the premises from NATURAL CONDITIONS on the premises; however, there is a duty for unreasonably dangerous artificial conditions; also responsible for harm caused by trees, i.e. falling branches

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9
Q

duty owed to undiscovered trespasser?

A

none

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10
Q

duty owed to discovered or anticipated trespassor?

A

landowner must warn or make safe concealed, unsafe, artificial conditions known the landowner involving risk of death or serious bodily harm, and 2. use R care in the exercise of “active operations” on the property

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11
Q

attractive nuisance doctrine (4 elements)

A
  1. a dangerous condition on the land
  2. the owner knows or should know children frequent the vicinity of the condition
  3. the condition is likely to cause injury
  4. the expense of remedying the situation is slight compared with the magnitude of the risk
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12
Q

duty owed to licensees?

A

a licensee is one who enters on the land w/ the possessor’s permission for her own purpose or business. the possessor has a duty to

  1. warn of or make safe dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee
  2. exercise reasonable care in the conduct of “active operations” on the property.
    - - no duty to inspect or repair
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13
Q

duty owed to invitees?

A

members of public; biz visitor. duty to make R inspection to discover non-obvious dangerous conditions and warn of or make them safe re: artificial and natural conditions

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14
Q

when does a statutory standard replace the general duty of care?

A

statute must provide for criminal penalties (including fines) and if:

  1. plaintiff is in the protected class
  2. statute was designed to prevent the type of harm suffered by the plaintiff
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15
Q

what is the effect of a violation of a statutory standard?

A

an unexcused statutory violation is negligence per se; i.e. it establishes a conclusive presumption of duty and breach of duty.

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16
Q

what is the effect of acting in compliance with a statutory standard?

A

does not necessarily establish due care

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17
Q

when does the duty to avoid creating a negligent infliction of emotional distress kick in?

A

when the defendant creates a foreseeable risk of physical injury to the plaintiff. the plaintiff usually must satisfy 2 requirements to prevail:

  1. the plaintiff must be within the zone of danger; and
  2. the plaintiff must suffer physical symptoms from the distress
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18
Q

when is a plaintiff in the zone of danger?

A

when her distress has been caused by a threat of physical impact

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19
Q

what must a plaintiff suffer in an NIED case?

A

physical symptoms from the distress

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20
Q

When can a bystander outside the zone of danger recover damages for her own distress?

A

When she sees the defendant nelgiently injuring another as long as:

  1. the plaintiff and the person injured by the defendant are CLOSELY RELATED
  2. the plaintiff was PRESENT
  3. the plaintiff PERSONALLY OBSERVED OR PERCEIVED the event
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21
Q

When is a defendant liable re: negligence and a special relationship b/t plaintiff and defendant?

A

the defendant may be liable for directly causing the severe emotional distress of the plaintiff when a duty arises from the relationship b/t the plaintiff and the defendant, such that the defendant’s negligence has great ptoential to cause emotional distress (e.g. doctor’s misdiagnosis that patient has terminal illness)

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22
Q

Is there generally a duty to act for bystanders?

A

generally, no

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23
Q

what duty arises once a bystander begins acting?

A

to act with reasonable care

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24
Q

what is a good samartian statute?

A

exempts doctors, nurses, etc. from liability for ordinary, but not gross, negligence

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25
Q

is there a duty to act if defendant caused the peril?

A

yes, one has a duty to assist someone one has negligently or innocently placed in peril

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26
Q

describe the relationship b/t breach of duty and “custom or usage”

A

custom or usage may be used ot establish the SOC, but does not control the question of whether certain conduct amounted to negligence. For example, altho certain behavior is custom in an industry, a court may find that the entire industry is acting negligently.

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27
Q

breach of duty and violation of statute

A

can establish duty and breach as matter of law thru negligence per se, causation and damages still need to be shown

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28
Q

elements of res ipsa loquitur?

A
  1. the accident causing the injury is a type that would not normally occur unless someone was negligent,
  2. the negligence is attributable to defendant (can show that defendant controlled the instrumentality)
  3. the plaintiff is not negligent
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29
Q

what is the effect of establishing res ipsa?

A

plaintiff has made a prima facie case and no directed verdict may be given for defendant; however, inference of nelgience can still be rejected by the trier of fact

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30
Q

what are the three ways to show actual cause?

A
  1. but for test
  2. joint causes - substantial factor test
  3. alternative causes approach
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31
Q

but for test re: actual cause?

A

act or omission is the cause in fact when the injury WN have occurred but for the act. applies when several acts come togher and cause the injury (each insufficient on its own)

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32
Q

substantial factor test?

A

several causes bring about injury, and any one alone would have been sufficient, defednatn’s conduct is the cause in fact if it was a substantial factor in causing the injury

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33
Q

alternative causes

A

altho both parties acted negligently, only one actually caused the harm. applies when it’s unknown which act caused the harm. each party has the burden of proof to show that even tho they acted negligently, they DN cause the harm.

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34
Q

proximate cause?

A

it’s a limitation of liability; general rule is whether the harm was foreseeable. if so, defendant’s actions satisfy the proximate cause prong.

35
Q

re: indirect cause, what occurs?

A

an affirmative intervening force comes into motion after defendant’s negligent act and combines with it to cause plaintiff’s injury

36
Q

common foreseeable intervening forces:

A
  1. medical malpractice
  2. negligence of rescuers
  3. efforts to protect the person or property of oneself or another
  4. injuries caused by another reacting to defendant’s actions
  5. subsequent diseases caused bya weakened condition
  6. subsequent accident substantially caused by the original injury
37
Q

independent intervening forces

A

(these still may be foreseeable if defendant’s negligence increased the risk of harm from these forces)

  1. negligent acts of 3d persons
  2. crimes and intentional torts of 3d persons
  3. acts of god
38
Q

foreseeable results caused by foreseeable intervening forces?

A

defendant is liable where his negligence caused a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an independent intervening force would harm plaintiff

39
Q

Defenses to negligence?

A
  1. contributory negligence
  2. assumption of risk
  3. comparative negligence
40
Q

contributory negligence?

A

negligence on the part of the palintiff that contributes to her injuries

  • P’s violation of an applicable statute may be used to establish his contributory negligence
  • P’s contributory negligence is a defense to negligence proved by defendant’s violation of an applicable statute unless the statute was designed to protect this type of P
  • contributory negligence is N a defense to intentioanl torts
41
Q

which doctrine allows plaintiff to recover despite her being contributorily negligent?

A

last clear chance: the person w/ the last clear chance to avoid an accident who fails to do so is liable for negligence

42
Q

assumption of risk?

A

P may be denied recovery if she assumed risk of any damage caused by D’s act. Plaintiff must have 1. known of the risk and 2. voluntarily proceeding in the face of the risk

43
Q

implied assumption of risk?

A

knowledge may be implied where the risk is one that na average person would clearly appreciate

44
Q

is AOR a defense to intentional torts?

A

no; but it is a defense to wanton and willful misconduct

45
Q

Comprative negligence

A

here, plaintiff’s contributory negligence is not a complete bar to recovery. instead, plaintiff’s damages are reduced according to plaintiff’s fault.

46
Q

pure comparative negligence?

A

plaintiff may still recover no matter how great plaintiff’s negligence was

47
Q

partial comparative negligence?

A

plaintiff’s recovery is barred if more serious than defendant’s negligence

48
Q

prima facie case for strict liability?

A
  1. nature of defendant’s activity imposes an absolute duty to make safe
  2. the dangerous aspect of the activity was the actual and proximate cuase of the plaintiff’s injury; and
  3. the plaintiff suffered damage to person or property
49
Q

trespassing animals?

A

owner is SL for R foreseeable damage done by a trespass of animals

50
Q

wild animals?

A

SL to licensees and invitees; generally no strict liability in favor of trespassers in the absence of owner’s negligence; however, a landowner may be liable on intentional tort grounds for injuries inflicted by vicious watchdogs

51
Q

SL re: domestic animals?

A
  • injuries caused by the normally dangerous characteristics of domestic animals; bulls or honeybees DN create strict liability
  • owner is generally not strictly liable for injuries caused by domestic animals (including farm aniamls) unless he has knowledge of that particular animal’s dangerous propensities that are not common to the species
52
Q

To which torts does transferred intent apply?

A

assault; battery; false imprisonment; trespass to land; trespass to chattels

53
Q

specific intent?

A

the person is acting in order to bring about specific consequences

54
Q

general intent?

A

the actor knows with “substantial certainty” that these consequences will result

55
Q

test for causation?

A

was the defendant’s conduct a substantial factor in bringing about the result

56
Q

battery elements?

A
  1. harmful or offensive contact (can be direct or indirect)
  2. to plaintiff’s person
  3. intent
  4. causation
57
Q

Which torts do NOT require damages?

A

battery, assault, false imprisonment, trespass to land

58
Q

assault elements?

A
  1. an act by defendant creating a R apprehension in plaintiff
  2. of immediate harmful or offesnive contact to P’s person;
  3. intent; and
  4. causation
59
Q

more about the apprehension element of assault

A
  • it does not require fear, only apprehension
  • defendant only needs the apparent ability to commit the batttery
  • words alone are insufficient
  • threat of harm must be immediate
60
Q

elements of false imprisonment?

A
  1. An act or omission on the part of defendant that confines or restrains plaintiff to a bounded area
  2. Intent; and
  3. Causation
61
Q

insufficient methods of restraint re: false imprsionment?

A
  1. moral pressure and

2. future threats

62
Q

other info re: false imprisonment?

A
  • irrelevant how short the time period it is

- plaintiff must KNOW of the confinement OR be HARMED by it

63
Q

elements of intentiaonal infliction of emotional distress?

A
  1. an act by defendant amounting to extreme and outrageous conduct
  2. intent or recklessness;
  3. causation; and
  4. damages – SEVERE emotional distress
64
Q

extreme and outrageous conduct?

A

conduct that transcends all bounds of decency

65
Q

damages req’d for IIED?

A

physical damages are not required, but actual damages of severe emotional distress are.

66
Q

What is the only intentional tort to the person that requires damages?

A

IIED

67
Q

third party IIED?

A

when the D intentionally causes physical harm to a 3d person and the plaintiff suffers severe emotional distress b/c of it, the plaintiff may recover by showing EITHER the PF elements of IIED OR 1. she was present when the injury occurred, 2. she is a close relative of the injured person, and the defendant knew facts (1) and (2)

68
Q

elements of trespass to land

A
  1. physical invasion of plaintiff’s real property
  2. intent; and
  3. causation
69
Q

re: trespass to land, what if intangible matter, such as an odor enters the land?

A

plaintiff may have a case for nuisance

70
Q

re: trespass to land, does D need to know that the land belonged to another?

A

know, only needed the intent to enter into the land

71
Q

are damages req’d for trespass to land?

A

no

72
Q

trespass to chattels elements

A
  1. an act by D that interferes with plaintiff’s righ tof possession in a chattel;
  2. intent;
  3. causation; and
  4. damages
73
Q

re: trespass to chattels, if defendant thinks he owns the chattels, is that a defense?

A

no, all that is needed is intend to do the act of interference

74
Q

damages needed for trespass to chattels?

A

actual damages - not necessarily damage to the chattel, but to the possessory right – are req’d

75
Q

what is the remedy for conversion?

A

plaintiff may recover DAMAGES (fair market value at time of conversion) or POSSESSION (replevin)

76
Q

what are the defenses to intentional torts?

A
  1. consent
  2. defense of self, others, or property
  3. necessity
77
Q

implied/apparent consent?

A

apparent consent is that which a RP would infer from custom and usage or plaintiff’s conduct, i.e. normal conduct in body contact sports. CONSENT implied by law arises when the action is necessary to save a person’s life or some other important interest in person or property.

78
Q

when is the defense of self-defense available?

A

when a person reasonably believes that she is being or is about to be attacked

79
Q

re: self defense, duty to retreat? intiial aggressor? 3d party injuries?

A

no duty to retreat, modern trend imposes duty to retreat before using deadly force unless in own home; self-defense is N available to intitial aggressor; self-defense may extend to 3d party injuries as long as they were unintentional

80
Q

mistake re: self defense?

A

A R mistake is allowed

81
Q

when is the defense of property allowed?

A
  • R force is allowed
  • request to desist or leave must first be made unless it would be futile or dangerous
  • one may use force in hot pursuit of another
  • not avaiable against one with a privilege to enter the land
82
Q

can you self-help re: reentry onto land?

A

no, use ejectment procedureds

83
Q

when may you use recapture of chattels as a defense?

A
  • when the tortfeasor has obtained possession of the chattels wrongfully and the defendant is in hot purusit
  • if chattel is now in the hands of innocent 3d party, CN recapture
  • timely demand to return the chattel is first req’d unless futile
84
Q

what if the chattel is on the wrongdoer’s land?

A
  • if the chattel is on the wrongdoer’s land, the owner is privileged to enter onto the land and reclaim them at a R time and in a R manner after first making a demand for their return
  • ***note: if chattels are on the land of another through the owner’s fault (i.e. negligently letting cattle wander), there isn o privilege to enter onto the land; can only recover thru legal system

Torts (3 decks)

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