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Torts > Duty > Flashcards

Duty Flashcards

1
Q

What duty is owed to an invitee?

A

Landowner must use reasonable care. They must warn and probably have to fix anything dangerous

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2
Q

What duty is owed to a licensee?

A

Landowner must avoid willful and wanton behavior and use reasonable care and WARN if they know there’s something dangerous

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3
Q

What duty is owed for an unknown trespasser?

A

Landowner must avoid willful and wanton behavior

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4
Q

What duty is owed for a known trespasser?

A

Landowner must use reasonable care if they know the trespasser is about to encounter danger

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5
Q

What duty is owed for a frequent trespasser?

A

Landowner must use reasonable care

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6
Q

What duty is owed to a flagrant trespasser?

A

Landowner must avoid willful and wanton behavior, and must use reasonable care if the son of a bitch is in peril and helpless

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7
Q

What are the elements of Attractive Nuisance

A
  1. Artificial condition
  2. Owner knows or should know kids are around and there’s an unreasonable risk
  3. Kids are too young to know better
  4. Owner doesn’t exercise reasonable care (Hand formula)
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8
Q

What is the Open and Obvious rule?

A

No duty to warn unless owner has reason to think that the invitee might be distracted and not notice the open and obvious danger

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9
Q

What is the firefighter rule?

A

If it’s in the scope of your job, you can’t sue for it

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10
Q

What is a Recreational Use Statute?

A

Limits liability for landowners if they let people onto land for recreation. But doesn’t work if they start charging.

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11
Q

What is the majority rule for standard of care in medicine?

A

Modified Locality Rule – doctor only has to act as a reasonable doctor in a similar community would

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12
Q

What are the exceptions to the Modified Locality Rule?

A

Specialists are held to standard of other specialists. Hospitals are held to national accreditation standard.

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13
Q

What is the Considerable Minority Rule?

A

If it’s not customary, but a considerable minority of doctors do it that way = no breach. Minority rule

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14
Q

Describe Good Sam statutes

A

Some statutes expressly include or exclude emergency rooms. Some courts say only applies if the doctor didn’t already have a special relationship with the patient.

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15
Q

What are the four rules for standard of care in medicine?

A
  1. Modified Locality Rule - majority
  2. Considerable Minority Rule - minority
  3. National Standard
  4. Strict Locality - abandoned
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16
Q

What is the duty for medical care?

A

What would a reasonable doctor do – only have to do what’s customary. No deviation from custom = no breach

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17
Q

What are the defenses to medical malpractice?

A

All the regular negligence defenses. Also, comparative fault – if π doesn’t disclose family history = fault. If π doesn’t ask good questions = no fault (similar to Bexiga)

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18
Q

What are the elements of informed consent?

A
  1. Doctor didn’t inform patient of risk of a procedure
  2. Risk happens and causes injury
  3. Patient wouldn’t have gone through with it if they’d had all the info
  4. A reasonable person also wouldn’t have gone through with it
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19
Q

What are the two tests for what info a doctor needs to disclose for informed consent?

A

Minority - Reasonable Patient Standard

Majority - Reasonable Doctor Standard

20
Q

What are the elements/ process for Res Ipsa in Medicine?

A
  1. Patient went in fine and came out injured
  2. Other possible causes are ruled out
  3. Use expert testimony to show injury doesn’t happen without negligence (don’t need if it’s super obvious)
21
Q

Can Res Ipsa be used for groups?

A

Third Restatement says yes, if a group had shared control and you need to suss out who did it

22
Q

Do all courts allow res ipsa for medicine?

A

No– thanks med mal reform

23
Q

What does the Public Duty Doctrine Apply to?

A

Government entities doing nonfeasance

24
Q

What is the Public Duty Doctrine?

A

Government entity is not liable when it breaches a duty owed to the general public
Ex: cops owe a duty to the public, not YOU specifically

25
Q

What are the exceptions to the Public Duty Doctrine?

A
  1. Entity assumed the duty to act (911 operator saying help is on the way)
  2. Entity knew inaction would lead to harm
  3. Direct contact between entity and person (talking on 911)
  4. Injured party justifiably relied on entity’s affirmative undertaking (hard to prove –> can’t relax guard cause they said they’d arrest a guy)
26
Q

What is the process for Governmental Immunity?

A
  1. Only brought in federal court
  2. Only tried by a judge
  3. Notice bar – have to give notice to agency within 2 years of claim accruing, and they have 180 days to ponder
27
Q

What is the Federal Tort Claims Act?

A

Says the government is liable in the same way a normie would be.

  • Look for private party analogy
  • State substantive law applies
28
Q

What are some exceptions to the Federal Tort Claims Act?

A

Post office, treasury, federal banking, customs, admiralty, combat related, quarantine related

29
Q

What is Discretionary Immunity?

A

Applies to any claim based on a discretionary function of a federal agency or employee

30
Q

What is the test for Discretionary Immunity?

A
  1. Does the statute give the government agency the discretion to make the decisions? if yes –> discretionary
  2. Is it a decision that is subject to social, economic, or policy analysis? If yes –> discretionary

Can also be thought of as design v. implementation

31
Q

What is the Feres Rule?

A

Bars liability if injury arose out of something incident to military service

32
Q

What is Nonfeasance?

A

No duty to help someone unless there’s a special relationship

33
Q

When do you have to protect someone from a criminal?

A

If you have a special relationship and foreseeability

34
Q

What are the exceptions to Nonfeasance?

A
  1. Causing harm without fault (car wreck, have to help)
  2. Creating harm without fault (hitting deer)
  3. Statutory (drivers have to stop, can’t prevent assistance)
  4. Assuming the duty – Lindsay Law
  5. Specific promises/ contractual obligations
  6. Special relationship
35
Q

What are some special relationships?

A
  1. Common carrier - passenger
  2. Innkeeper - guest
  3. Landowner - those lawfully on land
  4. Employer - employee
  5. School - student
  6. Landlord - tenant
  7. Custodian - person in custody
36
Q

What is negligent entrustment of chattel?

A

Negligently giving a dangerous item to someone who then hurts a third party with it (giving your keys to super drunk friend)

37
Q

What special relationships matter?

A
  1. Between π and ∆

2. Between ∆ and criminal

38
Q

When does a therapist have a duty to a third person?

A
  1. There’s an identifiable victim

2. AND serious threat of physical harm

39
Q

What is the standard of care for a therapist who thinks her patient is going to off someone?

A

Assessing threat –> medical standard of care

Warning victim –> reasonable standard of care

40
Q

How can a therapist/ doctor satisfy obligation to third party (to prevent danger from her patient)?

A
  1. Can warn the patient about the risk (like don’t drive under this Rx)
  2. Informed consent: must tell patient that a risk of treatment is reporting them
41
Q

What are the 4 tests for foreseeability part of duty to protect?

A
  1. Totality of Circumstances - Majority
  2. Specific Harm Rule
  3. Similar Incidents Test
  4. Balancing Test (Hand formula)
42
Q

What is the majority rule for foreseeability part of duty to protect?

A

Totality of Circumstances

43
Q

What is the standard of care for kids?

A

Must act as reasonable kid would – unless doing a grown up activity like driving

44
Q

What is the standard of care for disabled people?

A

Must act as a reasonable disabled person

45
Q

What is the standard of care for mentally handicapped person?

A

Must act as a reasonable person

46
Q

What is the standard of care for someone with superior knowledge/ skills?

A

Must use those superior knowledge and skills

Torts (9 decks)

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