Chapter 7 torts

Question 1

List the five elements of a negligent tort

Answer 1

1. Duty of care
2. Breach
3. Factual Cause
4. Forseeable Harm
5. Injury

Question 2

Explain “duty of care”

Answer 2

• If you are a plumber you should do it as a reasonable and prudent plumber would

Question 3

How does a duty arise?

Answer 3

• There has to be a duty owed before there is a breach of duty
• If the duty doesn’t arise by some special relationship, agreement, or job requirement
o By law- if the government creates one ( as a driver we are required to stop if we are in an accident that causes injury)
o By agreement- plumber example

Question 4

What liability/duty of care do “Dram Shop” laws address?

Answer 4

• Dram shop= any operation that sells alcohol= anything other than socially giving away

Question 5

Explain the duty of care (if the law recognizes it) for General landowners to trespassers

Answer 5

owe nothing to a trespasser, they are there illegally entering and you owe them nothing

Question 6

Explain the duty of care (if the law recognizes it) for General landowners to trespassing children

Answer 6

doctrine of attractive nonsense= minors, anything man made and reasonably expected to attract and injure children—swimming pools must have fences—take precautions required by law to protect the child, abandon buildings—must be boarded up

Question 7

Explain the duty of care (if the law recognizes it) for General landowners to social guests

Answer 7

you owe a duty if you invite them over, warn them of any dangers on the property, don’t use the back stairs—they’re broken

Question 8

Explain the duty of care (if the law recognizes it) for General landowners to business invitees

Answer 8

to make the premises safe—not just warn them; shovel snow, dry floors

Question 9

What constitutes a breach of a duty?—

Answer 9

not performing that duty to the level that would be expected of a reasonable and prudent employee

Question 10

Does a plaintiff have to prove negligence if the defendant’s actions constitute negligence per se?

Answer 10

?

Question 11

What are the elements of negligence per se?

Answer 11

automatic negligence= arises when there is a statute involved:

• law must create a clear duty
• duty must exist to protect someone
  
  • example: land owner must shovel snow

Question 12

Explain causation.=

Answer 12

the link between the breach and the injury

Question 13

What does Palsgraf v. Long Island Railroad (pages 157 -158) tell us about causation?

Answer 13

• Explosives go off, penny thing falls on child, pushing a passenger to get him in the door

Question 14

Explain causation in fact

Answer 14

the injury wouldn’t have occurred but/for the negligence

Question 15

Explain proximate cause

Answer 15

forseeablity (2)—it’s not foreseeable that pushing a passenger would cause an explosion

Question 16

What does “foreseeability” mean?—

Answer 16

reasonably knowing that something will happen

Question 17

How does a finding by a court of res ipsa loquitur affect a negligent tort case?

Answer 17

• The thing speaks for itself, there are something’s that are so obviously caused by negligence, the defendant must have control over the process- the injury cannot be caused unless there is negligence (scalpel) (air conditioning unit)

Question 18

List and explain the three requirements for a finding of res ipsa loquitur.

Answer 18

• The defendant must have exclusive control
• Doesn’t happen but/for negligent conduct
• The plaintiff was injured

Question 19

How does the doctrine of contributory negligence work? Is it widely used today? Why?

Answer 19

• If in fact you as the plaintiff were negligent and were injured, you cannot recover

Question 20

How does the doctrine of comparative negligence work? How does “pure” comparative negligence differ from the “50% rule”? Give an example of the application of both to a negligence case.

Answer 20

• Looking at two different things or more, when the plaintiff and defendant are both negligent we compare the negligence
• 50% RULE= plaintiffs negligence accounts for 50% or more of your injury then you get nothing and you revert back to contributory negligence

Question 21

Explain “assumption of the risk” as an affirmative defense to a claim of negligence, and address the recognized limit upon the defense.

Answer 21

• Assume by conduct or by specific agreement—roller coasters

Question 22

Explain strict tort liability based upon ultra-hazardous activity.

Answer 22

• Sulfuric acid explosion, no records, unknown what happened= just prove ultra hazardous activity
• Sue the person who chooses to take part in it