Elements and Definitions Flashcards
Negligence Elements
- Injury
- Duty
- Breach
- Causation
Bystander Liability (NIED) Rule and Elements
“bystander may recover for ED caused by OBSERVING negligent infliction of injury to a third person if P is
1. closely related to the victim
2. present at the scene of the injury when it occurred and was aware that the victim was being injured
3. P suffers ED beyond what would be expected in a disinterested witness”
What determines breach?
the level/type of care D owes P
What are Physical Damages? What type of duty of care is owed?
Bodily Harm and Property Damage; General Duty of Care, or Unqualified Duties of Care
What are Nonphysical Damages? What type of duty of care is owed?
Economic Loss and Emotional Distress; Limited Duty of Care, or Qualified Duties of Care
General Duty Rule (unqualified)
a person has a duty to take ordinary care to avoid causing physical harm to a reasonably foreseeable victims. General duty attaches to any course of conduct that carries risk of injury to another, and does not depend on stranger/non-stranger distinction.
Ordinary Prudent Person Standard
A person has a duty to act as an ordinary prudent person would (General Duty). Objective standard.
Types of Limited (Qualified) Duties
“1. Affirmative Duty to Protect/Rescue
2. Premises Liability
3. Pure Economic Loss
4. Negligent Infliction of Emotional Damage”
Affirmative Duty to Protect or Rescue Baseline Rule
There is no duty to take affirmative steps to rescue someone, even when the act of doing so would cost you nothing
Duty Owed to Undiscovered Trespassers (Premises Liability)
a landowner owes no duty to an undiscovered trespasser. he has no duty to inspect to ascertain whether persons are coming onto his property
Duty Owed to Discovered Trespassers (Premises Liability)
once a landowner discovers the presence of a trespasser, he is under a duty to exercise ordinary care to warn the trespasser of, or to make safer, artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover. no duty owed for natural conditions and less dangerous artificial conditions
Invitee (Premises Liability)
“Enters at invitation of possessor in furtherance of possessor’s business or mission (customer).
Possessor must take care to provide a reasonably safe premises.”
Licensee (Premises Liability)
“Enter with permission of possessor but not in futherance of possession’s business or mission (social guest)
Must warn of hidden dangers about which the possessor knows, or should know about.”
Trespasser (Premises Liability)
“Enters without permission.
No duty of care owed to adults (except for “known” trespassers).
when a possessor knows or ought to know that their property is constantly intruded on, they owe them a duty to warn of any dangers.
Duty owed to children not to maintain attractive nuisane or foreseeable dangerous conditions”
Pure Economic Loss Baseline Rule
“there is no duty to take reasonable care to avoid pure economic loss.
economic loss is recoverable when it is parasitic on physical injury or tangible property damage.”
Negligent Infliction of Emotional Damage Baseline Rule
there is no duty to avoid carelessly causing emotional distress to another person. if ED is parasitic on physical harm, the harm is recoverable
Zone of Danger Test (NIED)
Where D acts carelessly to subject P to imminent physical danger of which P is aware of and which doesn’t materialize, P may recover for ED associated or stemming from that imminent danger
Zone of Danger Elements
“1. D’s carelessness put P at risk of imminent physical harm
2. P’s awareness of that risk causes her to fear for her own safety
3. (MINORITY RULE) P’s fright produces physical consequences that would be elements of damage if bodily injury is suffered”
Bystander Liability (NIED) Rule and Elements
“bystander may recover for ED caused by OBSERVING negligent infliction of injury to a third person if P is
1. closely related to the victim
2. present at the scene of the injury when it occurred and was aware that the victim was being injured
3. P suffers ED beyond what would be expected in a disinterested witness”
TJ Hooper Rule
even if D acted within the care that is industry custom, that fact alone does not establish that D used the level of care of ordinary prudence
Anti-TJ Hooper Rule
in professional malpractice cases, customary standard of care is dispositive. P must prove that D deviated from the standard of care in their practice. In professional malpractice cases, plaintiff almost always needs to bring in expert testimony to determine the standard of care
Reasonable Prudent Patient Standard
what the physician should disclose to a patient in order that the patient can make an informed decision and act like an ordinary prudent person would do
Superior Knowledge Rule
“Modified Objective Standard.
a person with special knowledge or skill is required to exercise the care a reasonable person with such special knowledge or skill would exercise under the same similar circumstances”
Profession or Trade Principle (Modified Objective Standard)
a person engaged in a profession or trade is required to exercise the care a reasonable member of the profession or trade would exercise under the same or similar circumstances
Hand Formula
“Burden < Probability x Loss
Burden - cost of taking precaution
Probability - that harm will occur
Loss - magnitude of harm
If burden outweighs PxL, the failure to take precaution is not a breach of standard of care”
Res Ipsa Loquitur
“Exception to OPP breach
allows a jury to infer negligence where the exact cause of an accident is unknown.”
Res Ipsa Loquitur Elements
“1. accident that harmed P is of a type that tends not to occur without carelessness
2. instrumentality of harm is in D’s exclusive control
3. P was a passive victim”
Actual Causation (Factual Cause)
“Did D’s carelessness play a role in bringing about P’s injury?
But-for D’s carelessness, would P be injured?”
Proximate Cause (Legal Cause)
Limits the scope of cause in fact or actual causation. serves to cut off liability at a certain point even where cause in fact is satisfied, for reasons that the harm is somehow too attenuated to make liability justified
Multiple Necessary Causes
Each D action is necessary to have caused the injury. individual actions, by themselves, are not sufficient to cause injury
Multiple Sufficient Causes
“exception to but-for causation and disregards proximate cause
if multiple acts occur, each of which standing alone would have been enough to cause injury, each act is regarded as an actual cause”
Alternative Causation
“two or more D’s act independently, fault of only one was necessary to cause P’s injury, but which one is unknown.
Burden of causation shifted to D to disprove their carelessness”
Market Share Liability
“if multiple manufacturers of fungible goods are named as defendants in a negligence action and it cannot be determined which manufacturer caused the harm, the manufacturers will be held proportionately liable in accordance with their market share.
Sindell v. Abbott Labs”
Toxic Torts
“General Causation - P must prove that Drug is capable of causing harm in humans
Specific Causation - P must prove that P’s exposure to meds could have caused P’s harm; P must also prove that P’s exposure to meds was a necessary cause for P to contract harm
Cooper v. Takeda”
Loss of a Chance
P can recover for a loss of a chance of life, even if chance is less than 50%.
redefined injury to solve causation puzzle in Falcon. P dies in child birth because IV was not administered. even if administered P would only have a 37% chance of living, but MD deprived P of chance to survive.
Majority Test for Proximate Cause
Foreseeability Test
Foreseeability Test
the conduct giving rise to the harm must be of the same general type or category to make liability justified. the category of the harm needs to be foreseeable
Superseding Cause
an intervening event, occurring after the alleged tortfeasor’s act, that is legally deemed to override the tortfeasor’s act as the cause of the injury and to relieve the tortfeasor from liability to such injury
Kinsman
“Proximate Cause
If a negligent actor creates a risk of foreseeable injuries, the actor may be liable for actual injuries of that same general type even if the actual injury’s nature and extent were not foreseeable.
Kinsman was dislodged at Continental’s dock by ice, causing damage to other ships who were dislodged, ultimately damming a river and wrecking a bridge
If an actor’s negligence triggers a chain of events leading to harm, the actor’s liability is not limited by the fact that another person in the chain failed to act to diminish the ultimate harm.”
Palsgraf
“Proximate Cause
a negligence plaintiff cannot piggyback on D’s carelessness that was directed towards a differently situated person.
P injured while standing on train platform when person drops fireworks on the tracks while trying to board train.
a Jury could not find D was careless with reference to P.”
Negligence Per Se
“Filler for breach element.
permits P to satisfy breach element of her cause of action by proving D violated a statutory rule of conduct.”
Analysis for Negligence Per Se
“1. Does the statutes (or regulation) set a standard of conduct?
2. is P a member of the class that the statute was meant to protect?
3. was the incident among those that the statute was intended to prevent?
If YES to ALL, P can use NPS instead of having to prove each element of negligence
If NO to ANY, P cannot rely on NPS, but might be able to introduce the violation as evidence suggesting D failed to conform to common law’s ordinary care standard”
Survival Action
Direct Action. Compensation by estate for losses incurred by decedent during life (payable to estate). Injuries suffered by tort victim. Estate can recover for pain and suffering decedent endured during the time between when injury occurred and before death
Wrongful Death Action
“Derivative Action. Empowers decedent’s surviving family members to seek compensation for loss of the support they have incurred as a result of the tortious killing of their decedent. Injuries suffered by next of kim/family of tort victim. Next of kin can recover for lost earnings of decedent after death (up to retirement) and loss of society damages (different from emotional distress)
adds an additional class of plaintiffs who can recover from a tort suit, not a new tort. Duty/Breach/Causation still need to be proven.”
Contributory Negligence
if P is AT ALL to blame for their injury, P loses and is barred from recovery
Comparative Fault
some at-fault P’s can recover, but the compensatory damages awarded for those who do recover are reduced in proportion to fault. D must prove that P was negligent and that P’s negligence was the actual cause of P’s injury
Modified Comparative Fault
MAJORITY RULE. P can recover until P’s fault is at 50% or higher, then no recover
Implied Assumption of Risk (AoR)
Complete bar to recovery. no agreement, but P freely and knowingly chooses to encounter a danger posed by D’s carelessness
Express Assumption of Risk (AoR)
Complete bar to recovery. Agreement between D and P, P agrees in advance to waive right to sue for injury caused by D’s wrongdoing
Express AoR Analysis
“If consent waiver is signed- public policy analysis
1. extremely common activity?
2. essential for public service?
3. advertised to the masses?”
Sovereign Immunity
Affirmative Defense, only applies to US or State Government. Local governments and municipalities are not included (unless exception).
Discretionary Function Exemption (DFE)
Government retains immunity under DFE because the gov’t cannot be liable for discretionary calls
Public Duty Rule
A government entity cannot be held liable for the injuries of an individual resulting from a public officer’s or employee’s breach of a duty owed to the public as a whole as distinguished from a duty owed to the particular individual
Eggshell Skull Rule
D is liable for P’s unforeseeable and uncommon reactions to D’s negligent tort. Tortfeasor takes his victim as he finds him.
Punitive Damages
money owed by D to P as punishment for egregious mistreatment, or to further deter similar actions. A wanton disregard (recklessness) of the safety of others, and which in law is equivalent to malice
Battery
“Intentionally Causing another to suffer a harmful or offensive contact.
ex: A intentionally shoots B in the back, B was unaware he was about to be shot (no assault)”
Prima Facie Elements of Battery
“1. A Acts
2. Intending to cause a contact with P (intent-subjective)
3. The contact with P that D intends is of a harmful or offensive type (intent-objective)
4. A’s act causes P to suffer a contact that is harmful or offensive (cause)”
Assault
Intentionally causing another to reasonably apprehend imminent harm OR offensive contact.
Prima Facie Elements of Assault
“1. A acts
2. Intending to cause in P apprehension of imminent harmful or offensive contact, and
3. A’s act causes P reasonably to apprehend such contact”
Transferred Intent
allows intent that is directed at another to be transferred to the person whom actually suffers consequences of the action
Self-Defense is available to a victim who:
“1. reasonably believes
2. that the use of force is necessary
3. to avoid imminent injury to himself
4. the force must be proportional
- non-deadly force can only be matched with non-deadly force”
False Imprisonment Elements
“Actor A is subject to liability to P for false imprisonment if
1. A acts
2. intending to confine P
3. A’s act causes P to be confined
4. P is aware of her confinement (Majority of Jurisidictions)
Minority Elements:
1. P did not consent to be confined
2. A was not legally authorized to confine P”
Shopkeepers Privilege
provides that a person who reasonably believes another person has stolen, or is attempting to steal property, is privileged to detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property
Shopkeeper’s Privilege Components
“1. a reasonable belief a person has stolen or is attempting to steal
2. detention for a reasonable time
3. detention in a reasonable manner”
Intentional Infliction of Emotional Distress Elements
“1. D acts
2. for the purpose of (or recklessness as to) causing P severe emotional distress
3. D’s conduct is “outrageous”
4. D’s conduct causes such distress”
Trespass to Land Elements
“1. D enters, or causes an entry, or remains on land, or fails to remove a thing from land that D is duty-bound to remove
2. the land is in the lawful possession of another
3. D intended to enter, or cause entry onto the land, or intended to remain on the land, or failed to remove a thing from the land.
Does not matter if D knows he is trespassing”
Trespass by Necessity
NOT a defense to a trespass action
Conversion
Wrongful Taking of Someone’s property
Trespass to Chattel Components.
“damaged property or deprived of use.
One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if
1. he dispossesses the other of the chattel, or
2. the chattel is impaired as to its condition, quality, or value, or
3. the possessor is deprived of the use of the chattel for a substantial time”
Affirmative Defense to All Trespass Torts
Consent
Nuisance Elements
“1. D acts
2. In a way that causes an ongoing and unreasonable interference
3. with P’s use and enjoyment of property in which P has possessory interest”
Injunctive Relief Standard (Nuisance)
If a nuisance exists, then an injunction is presumably appropriate, unless the hardship to D greatly outweighs the hardship to P
What constitutes an unreasonable interference? (factors)
“Depends on its effects on an ordinarily reasonable person. Relevant factors to examine:
Location of nuisance, Neighborhood’s character, Nature of the nuisance, Frequency of intrusion, Effect the nuisance has on health/life/property”
Abnormally Dangerous Activities Elements
“An activity is “abnormally dangerous” if it:
1. Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors, and
2. Is not one of common usage”
Product Liability Elements
“1. Injury
2. Product was sold by D
3. D is a commercial seller of the product
4. Product was defective at time of sale
5. Causation (actual and proximate)”
Three Types of Product Defects
Manufacturing Defect (particular item defective)
Design Defect (product line flaw)
Failure to Warn
