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Torts > General > Flashcards

General Flashcards

1
Q

Recklessness

A

Restatement: “[T]he actor knows of the risk of severe emotional harm (or knows facts that make the risk obvious) and fails to take a precaution that would eliminate or reduce the risk even though the burden is slight relative to the magnitude of the risk, thereby demonstrating the actor’s indifference.”

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2
Q

Intent

A

Desire to cause consequences (purpose)
OR
Belief consequences are substantially certain
- do not need to intend entire consequence just the harmful contact

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3
Q

Transferred Intent

A

Intent transfers from one person to another and from one intended harm to another
- 5 core harms

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4
Q

Knowledge Intent Case

A

Garrett v. Dailey
5 year old pulled chair out.
Remanded to see if child had knowledge that someone would fall if he pulled chair

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5
Q

Children and Intentional Torts

A

Children are liable for intentional torts. Age is irrelevant for culpability, only plays a role to determine what D subjectively know.

Policy

  • teaches right from wrong
  • P should not be left with damages
  • intentional tort, kids should know better
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6
Q

Mentally Ill and Intentional Torts

A

A finding of insanity does not preclude a finding that D acted intentionally.

Policy

  • between 2 innocent, better to hold liable the one that caused harm
  • integrate them into society
  • avoid people faking insanity
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7
Q

Mentally Ill Case

A

William v. Kearbey
- 14 yr old shot up school
Insanity is not a defense to intentional torts
However, if you intended to inflict the harm but the rationale was misplaced, you may be absolved

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8
Q

Battery Elements

A

Act
- Voluntary

Intent
- Intent to touch or make offensive contact

Causation
- But For

Harmful/Offensive Contact

  • contact offensive to a reasonable sense of personal dignity
  • does not need to be physical touch, physical property works (smoke counts) (light/sound not enough)
  • Known sensitivity exception to the RP standard
  • General touches of everyday life do not count.

To a Person

*Damages are not necessary because battery is actionable, even if damages are $1 because it is intentional.

Policy

  • Prevent physical harm
  • protect dignity of people
  • protect people’s autonomy
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9
Q

Known sensitivity Case

A

Leichtman v. WLW

  • P is national antismoking advocate, they smoked at him during radio interview
  • Because of known sensitivity, secondhand smoke counts as battery
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10
Q

Not Physical Touch Case

A

Bohrmann v. Maine

  • Exposed to radiation while touring
  • no physical contact but did not matter
  • Just because D complied with federal safety standards does not mean they are not liable for intentional acts.
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11
Q

Assault Elements

A
  • Acts (words are not enough)
  • Intent
  • Reasonable Apprehension
  • Of Battery/ False Imprisonment
  • Causation
  • To a Person
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12
Q

Reasonable Apprehension

A

Awareness (not fear)

  • Imminent Threat
  • reasoning - if its not imminent, you have all the tools to go through other avenues
  • Apparent ability to carry out threat
  • Note = restatements do not require apprehension to be reasonable (minority)
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13
Q

No touch assault case

A

I De S Et Ux

- struck hatchet into door near her - this put her in a reasonable apprehension of fear, so yes assault

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14
Q

Imminent bodily harm case

A

Castro v. Local

  • Meeting room, supe yelled and slammed table and threatened her verbally. Threatened job.
  • Words are not enough and the threat were forward looking and would not cause a P to reasonably believe in danger of imminent harm
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15
Q

Transferred Intent

A

Intent can be transferred across people and between tort to torts

  • Consensus - transfers between assault and battery
  • some courts - transfer between 5 big torts (batt, assault, false imprisonment, trespass to chattel, trespass to land)
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16
Q

Transferred Intent Case

A

Alteiri v. Colasso

  • D threw rock intending to hit C but hit P
  • Yes transferred intent
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17
Q

Doctrine of Mistake

A

You are still liable if you mistake the identity of the person you’re intending to hurt

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18
Q

False Imprisonment Elements

A
  • Act
  • Intent to confine another within fixed boundaries
  • Unlawful confinement or restraint (accompanied by immediate, physical coercion (or threat of it))
  • Victim is conscious of confinement or harmed by it
  • Damages are assumed because of loss of liberty
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19
Q

Means of confinement

A
  • physical barriers
  • force or threat of immediate threat
  • omissions where there is a duty to act (failure to bring person back to shore on a boat)
  • Improper assertions of legal authority (false arrest)
  • someone takes your property and confines you
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20
Q

Non-false imprisonment situations

A
  • victim free to proceed in any direction except the on they prefer
  • Confinement to a country likely is not enough
  • Economic coercion is not enough
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21
Q

False Imprisonment Case

A

Dupler v. Seubert

  • Fire from job, but they bosses tried to get her to quit. Stood at door, used language, unequal power. She left and came back for purse.
  • False imprisonment for the first time, but not when she came back
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22
Q

Private Arrest

A

Exception to False Imprisonment
Where a private individual can confine a person lawfully
- requires a felony was committed
- requires reasonable grounds to believe the person arrested committed the felony

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23
Q

Malicious Prosecution Elements

A
  • Criminal or civil prosecution by D v. P
  • Termination of process in favor of P (not dropped)
  • Malice (wanton disregard for the facts and law
  • No probably cause
  • damage to plaintiff
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24
Q

Abuse of Process Elements

A
  • Use of legal process (civil or crim)
  • Against another person
  • To accomplish a purpose for which it was not designed
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25
Q

Abuse of Process Case

A

Maniaci v. Marquette

  • Girl in school but wanted to leave. School brought in doctor declared her crazy and detained her until parents called for release
  • No false imprisonment because confinement was lawful
  • Not malicious prosec because dropped charges do not count and there was no malice
  • Yes abuse of process because they used a mental illness statute to hold her until parental permission was given
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26
Q

IIED elements

A

Def: when D, through and extreme and outrageous conduct, intentionally or recklessly causes the victim severe emotional distress (limited to extreme cases)

Elements

  • outrageous conduct
  • intent or recklessness
  • causation
  • serious emotional harm
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27
Q

Outrageous conduct

A
  • word can be enough
  • but must be beyond the bounds of decency or socially tolerable conduct
  • extreme and outrageous conduct: depends on facts of case and relationship between parties (power differentials), vulnerability of victim, motivation, conduct repeated or prolonged (ordinary insults not enough)
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28
Q

(IIED) Intent or recklessness

A
  • Purpose or desire
  • Substantial certainty
  • Recklessness - conscious disregard of a substantial risk of serious harm (not a purely intentional tort)
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29
Q

(IIED) Serios emotional harm

A
  • A reasonable person would be harmed
  • P was harmed
  • Harm is severe
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30
Q

IIED Outrageous conduct Case

A

Slocum v. Food Fair
(NO IIED)
- heart attack at store for “you stink”
- no because conduct was not outrageous. Insult is not enough.

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31
Q

Serious emotional harm case

A

Jones v. Clinton
(NO IIED)
- Clinton touchy feely
- This was not found to be extreme and outrageous
- No evidence that P was distressed because never missed work (with governor Clinton), never filed a complaint, never consulted medical professional, and had no bad encounters after

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32
Q

Yes IIED Case

A

Swenson v. Norther Crop
- Frequent remarks, pattern of behavior, sex discrimination, refusal to communicate, supervisory position, knowledge of P’s deteriorating emotional situation all led to YES IIED

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33
Q

IIED and Public Figures

A

Public figure has to show actual malice and false statement of fact
- Actual malice is knowledge of falsity or reckless disregard as to to the truth

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34
Q

IIED and Public Figure Case

A

Hustler Mag v. Falwell

  • Ran parody of alcohol ad that P had sex with mother in outhouse
  • Falwell is a pubic figure and the ad parody is not reasonably believable. It is not a false statement of fact and thus no IIED
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35
Q

Matters of Public Concern v. Private Concern

A

If speech is a matter of public concern, it is most highly protected by the first amendment. Public concern is when it can be fairly considered as relating to any matter of political, social, or other concern to the community

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36
Q

Public Concern Case

A

Snyder v. Fred Phelps

  • Picket at soldiers funeral
  • Ds talking about public issues and properly had picket space. So speech is protected under the first amendment.
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37
Q

Defenses to Intentional Torts

A
  • Self Defense
  • Defense of Others
  • Defense of Property
  • Consent
  • Necessity
  • Public Necessity
  • Private Necessity
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38
Q

Self Defense

A
  • complete defense

elements:

  • use of reasonable force
  • D reasonably believed
  • Necessary
  • To prevent immediate harm

other rules:

  • reasonably perceives necessary to protect from threat of immediate force
  • since but unreasonable belief is NOT SD
  • Cannot continue to hit until harm is gone
  • Cannot self defense if you started, or you gave clear notice of withdrawal
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39
Q

Defense of Others

A
  • similar to self defense, but another person
  • some jx the victim need a valid self-defense claim
  • reasonable mistake can be okay depending on jx.
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40
Q

Defense of Property

A
  • Can use reasonable force to defend property

- Cannot take human life or inflict serious injury is NOT reasonable

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41
Q

Shopkeeper’s Privilege

A

Can detain for a reasonable period based on a reasonable belief of theft

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42
Q

Recovery of Property

A

Can use reasonable force in “hot pursuit” of someone wrongfully taking property

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43
Q

Self Defense Case

A

Kid snowball at a car case

  • no self defense because danger gone
  • defense of others? maybe but did not tell parents
  • yes false imprisonment because it was unreasonable
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44
Q

Consent

A

If there is freely given informed consent, that is a defense to most intentional torts

  • Express - “objective manifestation of consent”
  • Implied - under the circumstances, the conduct reasonably conveys consent (custom/usage helps)

children and incapacitated cannot usually consent

issues when consent goes beyond consent, or induced by duress or fraud

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45
Q

Necessity

A

Reasonable belief of imminent danger to greater interest

do minimal harm to protect interests

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46
Q

Public necessity

A
  • Allows the appropriation of property to avoid a greater harm to the public
  • Under common law, victim does not have to be compensated (use property to prevent public disaster)
  • No intentional infliction of great bodily harm or death to small number to avoid to large number
  • civil disobedience
  • consent can nullify an claim
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47
Q

Private Necessity

A
  • A privilege that allows D to interfere with the property rights of an innocent party in an effort to avoid greater injury (harming another’s property in defense of your own interest)
  • Actor must still compensate P
  • D must have reasonably perceived an immediate need to appropriate the victim’s property to avid a greater damage to property or life
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48
Q

Private Necessity Case

A

Vincent v. Lake Erie

  • Storm, boat, dock case
  • D allowed to dock boat to dock, and trespass on dock, but has to pay if any damages
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49
Q

Intentional Interference with Contractual and Economic Relations Elements

A
  • Valid contractual relationship or business expectation
  • Knowledge
  • Improper and intentional interference
  • Causing breach (must’ve undermined contract relationship)
  • Resultant damage
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50
Q

Factors for Improper

A
  • Nature of conduct
  • Motive
  • Interest interfered with
  • Interests advanced by interferer
  • Social Interest
  • Freedom of action of the interferer
  • Contractual interest of the other party
  • Proximity - conduct and interference
  • Relations between parties
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51
Q

Defenses to IICER

A

Defense for Contract and Expectation

  • Responsible for welfare of another
  • Advice
  • Bona fide claim
  • Agreement illegal v. public policy

Defense for At Will Contract and Expectation
- Competitors

Defense for Expectation only

  • Financial Interest
  • Influencing business policy
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52
Q

IICER Case

A

Calbom v. Knudzton

  • Accountant being an ass to attorney case.
  • at will contract
  • D had knowledge or relationship and interfered with it. Yes IICER
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53
Q

IICER case re competitive practices

A

Lowell v. Mother’s Cookies

  • Ruined sale, then bought for low price
  • Yes, there is a cause of action for IICER
54
Q

IICER and Political Action Case

A

EPIC v. Superior Court

  • nonprofit that published newsletter criticizing the newspaper and telling patrons not to buy it and not patronize businesses that advertise
  • Political motivation boycott is protected speech and thus this is not IICER
55
Q

Intentional (Economic) Misrepresentation Elements

A
  • Material misrepresentation (RP think important or knowledge that important)
  • Knowledge the statement is false OR reckless disregard as to its truth or falsity
  • Intent to induce reliance by the victim
  • Justifiable reliance by the victim
  • Monetary damages to victim

Note - actions more than omissions

  • omission requires a duty to provide info
  • future facts are not actionable

2 types of omissions:

  • Fiduciary relationship
  • Partial info where there’s reasonable expectation to disclose omitted information
56
Q

Omission Intentional Misrep Case

A

Nader v. Allegheny Air

  • P was bumped from flight - sued for fraud b/c had a confirmed reservation
  • Nondisclosure of overbooking policy was misleading and false understanding when given a confirmed seat
57
Q

Remoteness Rule

A

Legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability
- look at closeness of the relationship between the action/actor and harm to P

58
Q

Remoteness Rule Case

A

NJ Carpenters Health Fund v. Philip Morris

  • misrep health and addictiveness of smoking, which resulted in increase health costs to insurance
  • injuries are too remote to the funds. Smokers should bring suit.
  • hard to show it was tobacco co intent to dupe the funds into paying higher health care
59
Q

Negligence Elements

A
  • duty by the D to conform to
  • a standard of conduct
  • breach by the D of the standard of conduct
  • causation
  • scope of liability
  • damages
60
Q

Duty

A

did D have a responsibility to do something to prevent harm to others?
2 tests
- General duty principle - if you act, you owe a duty to foreseeable Ps for foreseeable risks
- Special Duties

this is a question of law (every other factor is fact)

61
Q

Breach

A 
Did Ds conduct fall below the standard of care owed? Or, was D reasonable?
2 tests
- RP test
- Exceptions
* Physical disabilities
* child standard of care
* negligence per se
* professional negligence (ex medical malpractice)

Use Hand Formula analysis

62
Q

Causation

A

Is there a factual link between the breach and the harm or did Ds breach cause the harm?

  • But For Test
  • Substantial Factor Test
63
Q

Scope of Liability

A

Should they be liable for the harm or is the harm too remote? Is harm too incidental or unlikely to impose liability?
- Test is foreseeability

Scope limits the type of harm the D can be liable for

64
Q

Damages

A

Test is legally cognizable harm

65
Q

Foreseeability across the elements

A
  • Duty: Is the P in the GENERAL CATEGORY to which the harm is foreseeable? Is the harm in the GENERAL CATEGORY foreseeable from the action?
  • Breach: Would a reasonably prudent person FORESEE that THIS CARELESS ACT could injure someone to whom you had a duty?
  • Scope: Does this particular injury fall within the SCOPE OF INJURIES that a reasonably prudent person should have FORESEEN? Was this specific P foreseeable or was it too remote or freakish?
66
Q

Wrongful death v. survival suit

A
  • Survival suit: suit by deceased’s estate for loss to the deceased
    o Also covers suit against estate of Defendants
  • Wrongful death: Suit brought by relatives of the deceased for the damages caused by the death
67
Q

Negligent Action Case

A

Pitre v. Employer’s Liability

  • firemen fundraiser case
  • No duty to prevent all harm, just harm that is foreseeable and unreasonable. Danger was not unreasonable. Kid should have known danger.
68
Q

Duty Elements

A
  • Act/Conduct
  • Foreseeable plaintiffs
  • Foreseeable risks
  • Reasonable care = breach analysis
69
Q

Duty Characteristics

A
  • Foreseeability
  • Broadly interpreted
  • Duty is a threshold element - is this the type of claim that should go forward?
70
Q

General Duty Principle

A
  • You act, you owe a reasonable care to foreseeable plaintiffs against foreseeable harms from your conduct.
71
Q

Misfeasance v. Nonfeasance

A

Difference between action and non-action

72
Q

Exceptions to the General Duty Principle

A
  • No duty to act, assist, or rescue
73
Q

Exception to the No Duty to rescue

A
  • Special relationship
  • Prior conduct created risk
  • Assumption of duty
  • Voluntarily starting to aid
  • Statute creating explicit duty
  • Intentional prevention of aid by others
74
Q

Exception to the No Duty to Act

A
  • Tarasoff duty (duty to warn)
  • Parent duty to control children
  • Landowner duty to protect
  • Police’s duty to protect
75
Q

Trichotomy

A
  • Invitee
  • consent of owner, business invitee, public building
  • Owed a duty of due care
  • Licensee
  • social guest
  • not owed due care, owed warning against hidden non-obvious traps, no willful injury
  • Trespasser
  • No consent of owner
  • duty to protect against willful wanton injury (trap)
  • Anticipated - warning/fixing of artificial hidden traps known to owner
  • Child trespassers (attractive nuisances)
  • If and only if, the kids were lured onto the territory by seeing the thing that harmed them, there is a duty
76
Q

Traynor Approach to Landowner Duty

A

General duty of care

77
Q

Dramshop Claims

A
  • Statutes imposing liability on those serving alcohol to the intoxicated
  • Creates a limited duty to those serving alcohol
  • Courts do not like these statutes. Up to courts, would be no duty or no scope.
78
Q

Policy for getting rid of trichotomy

A

For getting rid

  • Applies to possessor of land (apartment renters too)
  • Important to keep our of the jury, the duties for a landowner
  • Must more flexible, less rigid
  • Value life and limb over property - more protection to entrants on land
  • Trichotomy does not fit anymore
  • Duty cases can be tricky

For keeping

  • 10 states - general duty to a trespasser
  • CA - after this case, created a duty to trespasser
  • Licensee - homeowner should have to hover over guest to protect them or repair everything on land because having guests over.
79
Q

Special Relationship Duties

A

Dependency

  • doctor/patient
  • parent/child
  • teacher/k-12 student

Power

  • Common carriers (plane, train)
  • Inns/hotels
  • Employers
  • Landlord/tenant
  • Business/patrons
80
Q

Instrumentality Under D’s Control

A

Peril caused by an instrumentality under control, then maybe a duty

81
Q

Instrumentality Case

A

L.S. Ayres v. Hicks

  • Kid in the elevator case
  • The elevator was an instrumentality under control and there were workers there. Store took no action or non-action quick enough.
82
Q

Voluntarily Starting to Aid

A

If you gratuitously or for consideration to begin helping someone, then you are subject to liability to the other for physical harm resulting from failure to exercise reasonable care to perform aid IF

  • failure to exercise such care INCREASES risk of harm
  • the harm is suffered because of the victim’s RELIANCE upon the undertaking
83
Q

Starting to Aid Case

A

Miller v. Arnal Corp.

  • Mountain rescue case
  • D did not make situation worse, did not affect the police rescue efforts.
84
Q

Duty to Protect from Criminal Activity

A
  • Parents and children
  • Landowners
  • Public agency’s duty
  • Tarasoff
85
Q

Duty of Parents for Children’s Torts

A
  • Parent liability: parents are not under the common law automatically liable for their children’s torts, although some states have imposed vicarious liability statutes
  • They can be held negligent in their supervision of the children
  • Mere knowledge by the parent of a child’s mischievous and reckless, or vicious disposition is not of itself sufficient to impose liability
    o They must know that the child has a habit in engaging in that specific conduct
    o Must have notice and an opportunity to intervene
    Parents have a limited duty to protect others from their children’s criminal acts; the determining factor is notice.
86
Q

Duty of Parents for Children’s Torts Case

A

Wells v. Hickman

  • Kid showed signs of serial killer, then he invited a kid over to grandparents house and killed him.
  • Court found that animal killings and school fights, suicide do not equate murder. Kids also played together before.
  • Grandparents also were watching kids, but not a relationship for liability
87
Q

Tarasoff Rule

A
  • Once a therapist determines, or, under applicable professional standards should have determined, that a patient poses a serious risk of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. DUTY TO WARN.
  • special relationship can amplify
  • foreseeable victims can amplify
88
Q

Limitations to Tarasoff Rule

A
  • Statute in CA limited to explicit threats and need to warn
  • Most courts use should have determined HOWEVER, Tarasoff duty has only been imposed where the person actually determined

Policy
- balanced with protecting confidentiality of patients and the effectiveness of therapy

89
Q

Extensions of the Tarasoff Rule

A

Alcohol
- some jx impose a duty on establishments serving alcohol to prevent drunk people from driving home and injuring someone

Extending to others that are not therapists?

  • Parents/grandparents
  • school psych/counselors
  • residential homes for homeless, mentally incapacitated and children
90
Q

Landowner Duty to protect from criminal activity

A

Invitee

  • reasonable precuations to protect invitee from criminal attacks
  • having a duty of care, does not usually meant duty to protect from crime
91
Q

Foreseeability Tests for Landowner Duty

A

Specific Harm Test
- (minority) landowner owes no duty unless the owner knew or should have known that the specific harm was occurring or was about to occur

Prior similar Incidents test
- landowner may owe a duty of reasonable care if evidence of prior similar incidents of crime on or near the property shows that the crime in question was foreseeable

Totality of circumstances test
- Court considers all of the circumstances surrounding an event (nature, condition, location, prior similar incidents)

Balancing Test
- (CA) a court balances “the degree of foreseeability of harm against the burden to be imposed”

92
Q

Balancing Test Cases

A

Delgado
- even when foreseeability is high, burden of requiring private businesses to provide security is almost always going to be too high

Sharon case
- no duty for assault in parking garage. Business invites crime is not sufficient. High cost so need high foreseeability.

93
Q

Totality of Circumstances Case

A

DTD v. Motz

  • sexual assault at frat party
  • court likes totality because it does not impose duty to ensure an invitee’s safety, but requires landowner to take reasonable precaution to prevent foreseeable criminal acts. Prior incident important.
  • no duty for Nationals because no relationship. Posters was not enough to create duty.
94
Q

Public Agency Duty to Protect

A 
Factors for special relationship
- foreseeability of harm
- degree of certainty of harm
- closeness of conduct and injury
- moral blame
- policy of preventing harm
- burden imposed for the increased security
PLUS
- extent of the agency's powers
- the role imposed upon it by law
- limitations of budget

Duty when (narrowly applied)

  • a special relationship
  • promise and victim’s reliance
  • creating the risk
  • starting to aid
95
Q

Duty and Public Officers

A

Generally no duty

Policy

  • too much tort liability
  • limited resources, police determine where to put
  • do not want to make police choose between who is less likely to sue
  • Time in court = less time protecting public
96
Q

General Police Duty Case

A

Davidson v. Westminster

  • Stabbing in laundromat
  • no duty because knowledge of tendencies of felon and visual identification is not enough to impose a relationship
97
Q

Public Agency Creating Risk Case

A

Johnson

- Foster child put in with family, but had homicidal tendencies. Agency created risk, yes duty

98
Q

Public Agent Voluntarily Start Aid Case

A

Mann
- police parked behind stalled cars, called tow truck and left without putting warning or flares. Special relationship existed because expert in traffic safety and started aid

99
Q

Factors for Relationship between police and citizen

A
  • There is direct contract or privity between public official and injured P making P apart from general public
  • There are express assurances given by a public official
  • Which gives rise to justifiable reliance on the part of the P
  • Police may have immunity regardless of relationship
100
Q

Limits on Duty Mental Distress/Emotional Harm

A

Usually not duty if only harm inflicted is emotional
- most states require physical manifestations

Criteria for imposing duty/exception

  • Defined, limited group of Ps
  • Credible claim in circumstances
  • strong justice reasons for giving compensations

Policy

  • Want to avoid limitless liability
  • Some emotional harm is part of living, hard to distinguish between regular emotional harm and compensable harm
  • Proof problem, easier to fake emotional harm
  • Worried about flooding courts with cases

Exceptions

  • Fear of Physical Harm
  • Bystander Recovery
101
Q

Fear of Physical Harm

A

Near miss - almost physical harm that causes emotional harm. General claim, show elements of negligence to P here - 2 tests for this

  • Impact rule - any touch (you have to have been touched)
  • Zone of physical danger - P within zone of risk
102
Q

Bystander Recovery

A
  • Show the principal has a claim (derivative claim), show all elements of negligence for the actual victim
  • Show duty to the bystander (and damages)
  • Zone of danger/Amaya - relative can recover if they were within zone of danger (significant minority)
  • Dillon (more than half states)
    + Duty if injury reasonably foreseeable
    + Guidelines for foreseeable
    >Nearness to accident
    >Direct sensory observation (can be nonvisual senses)
    >Relationship to victim (most courts: spouse, parents, children siblings only)
    > case by case determination
  • Thing (duty if, and only if, P)
    + Closely related to victim
    + Present at scene and aware of injury
    + Suffers severe emotional distress that is not an abnormal response to circumstances
103
Q

Negligent Infliction of Emotional Distress

A

NIED, when caused by knowledge of third person’s injury is recoverable in some cases that meet the standards

104
Q

NIED Case

A

Thing v. La Chusa
- Thing was minor hit by a car, Mom heard about accident and came out to see Thing bloody and unconscious
- Court found that mother does not meet the Thing standard because she was not present at the time of the injury and only saw the aftermath
+ Closely related to victim
+ Present at scene and aware of injury
+ Suffers severe emotional distress that is not an abnormal response to circumstances

Policy
- drawing a line may produce unjust results

105
Q

Special Exceptions to Zone of danger/dillon, and do not need physical manifeststations

A
  • Improper handling of relative’s corps
  • Mistakenly informing P that a relative died
  • CA has allowed recovery where P is a “direct victim”

Some courts allow recovery for mental distress caused by D’s negligent damage to chattel, but limited it to chattels that have strong sentimental value

106
Q

Landowners’ Business Owner and Occupiers Duty

A
  • If you are acting* on your land, the general duty principle applies and you have a duty as long as P is foreseeable and harm is foreseeable
  • The duty we are talking about here is when there is a dangerous condition, not when you are acting
107
Q

Standard of Care for Licensee

A

a possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if and only if;

  • The owner knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees and should expect that they will not discover or realize the danger and
  • He fails to exercise reasonable care to make the condition safe or to warn the licensees of the condition and the risk involves
  • And the licensees do not know or have reason to know of the condition and the risks involved
108
Q

Licensee Case

A

Younce v. Ferguson

  • Kegger case
  • Keeps trichotomy, we should not subject landowners to unlimited liability
  • Small ticket price does not make her an invitee - no profit, just cover cost of party supplies. She was also aware of risks.
109
Q

Attractive Nuisance Doctrine

A 
Children see, from far-off land
- artificial condition
- hazardous
- unfenced
- unhidden
- attracts child on land
If children harmed by condition, owner might be liable
110
Q

R2d Child Trespasser

A
  • artificial condition
  • possessor knows/has reason to know
    + children are likely to trespass
    + Of dangerous condition
  • Unreasonable risk of death or seriously bodily harm to children
  • Children do not discover condition or realize danger because of youth
  • Utility of maintaining condition and burden of removal are slight vs. the risk to children
  • Possessor fails to exercise reasonable care to eliminate danger or protect children
111
Q

Child Trespasser Case

A

United Zinc & Chemical v. Britt

  • Pool poisoned with clear chemicals, D knew, 2 children saw it, swam and died
  • Court says there was no evidence that the water led them onto the property or that they could even see it from “far off” road
112
Q

Rowland approach to trichotomy

A

Gets rid of trichotomy

Test for possessor of land: whether the person acted as a reasonable person in the circumstances; although the status of the injured person may be relevant, it is not determinative of the duty owed. Basically a foreseeability test.
- When is It appropriate to create a special or limited duty- Factors:
o Foreseeability of harm to P
o Degree of certainty P was injured
o Closeness of connection between conduct and injury
o Moral blame of D
o Preventing future harm
o Burden to D
o Consequences to community
o Availability, cost, and prevalence of insurance

113
Q

Alternative to Trichotomy Case

A

Rowland

  • Broken faucet case
  • She knew about faucet and it was not obvious. The proper test for possessor of land is whether the person acted as a reasonable person in the circumstances and foreseeability considering the factors. Reasonable people do not alter their reasonable behavior based on these distinctions. Trichotomy is really complex with a lot of exceptions, and it is hard to apply.
114
Q

Wrongful Conception

A

Doctor’s negligence led to birth of healthy child

Policy

  • Financial concerns with having unwanted child
  • Damages difficult because may be unclear

Damages
- Majority - medical costs for pregnancy
Minority - costs for raising child

115
Q

Wrongful Birth

A

Doctor’s negligence led to birth of disabled child
- Alternative: abortion
- Disability has to be more than regular disease such as asthma
- Most courts do award compensation for this one
+ because it’s malpractice
+ Damages are usually pretty clear (cost of raising disabled child)

116
Q

Wrongful Life

A

Child sues for being born with disability, alleging suffering

  • Alternative: not being born (abortion)
  • Issue: Alternative is not being born, which is unquantifiable
  • may get special damages for extraordinary expenses necessary to treat the hereditary ailment
117
Q

Wrongful Life Case

A

Turpin v. Sortini

  • First born, doctor said no problems. Had second child that had same hereditary disease as first child.
  • No cause of action for the general harm for being deprived of right of being born without disability. P gained life which is better than not being born.
  • There is a cause of action for special things/care she will need for her whole life because of the condition.
  • No general damages, but yes extra expenses
118
Q

Economic Loss Limitation

A

Only harm caused is economic in these cases (not including actual injury). Generally, there is not duty when the only loss is economic

Balancing Test:
- Hold professionals liable for negligence VS. prevent extensive liability for errors

Approaches:

  • Cardozo, Ultramares: an accountant only liable when there’s privity or quasi-privity
  • Weiner’s approach: reasonable foreseeability
  • Restatement: accountant liable if known P, known transaction.

Exceptions

  • Accountant liability (do not need to know)
  • Special relationship
119
Q

Negligent Misrepresentation

A

Generally accepted exception to the rule that the negligent D is not liable for pure economic loss.

Under R2d, negligent D must have notice that the third party is relying on the info in order to impose liability

120
Q

Negligent Interference with Prospective Economic Advantage

A

Can in some cases be protected against injury from negligent conduct, but it requires a special relationship. NARROW
Criteria:
- Extent to which the transaction was intended to affect the P
- Foreseeability of harm to the P
- Degree of certainty that the P suffered injury
- Closeness of connected between D’s conduct and the injury suffered
- Moral blame attached to the D’s conduct
- Policy of preventing future harm

Policy

  • Possible excessive liability
  • Creation of undue burden on freedom of action
  • Fraudulent or collusive claims
  • Speculative nature of damages
121
Q

Negligent Interference with Prospective Economic Advantage Case

A

J’Aire Corp. v. Gregory

  • Owner had contract with D for improvements of building. The K did not specify any date for completion for work. Restaurant could not open, but no privity between restaurant any contractor cause of airport.
  • This tort needs a special relationship (not privity), created relationship by:
  • K could not have been performed without affecting P,
  • it was foreseeable (and P told D),
  • unable to do business for a month,
  • D negligent especially blameworthy because P told him and he kept doing it,
  • and it meets foreseeability requirements of general tort law.
  • D had a duty to complete construction in a way that would have avoided unnecessary injury to P’s business, even though K was with building’s owner and not P.

o Note: this case is an somewhat of an exception; normally courts do not allow recovery of pure economic loss under negligence without a business/professional context.

122
Q

Breach

A

RP Test
- In light of foreseeable risks, did D (or P in contributory negligence) behave as a reasonable prudent person under these circumstances?

Restatement
- Conduct is negligent if its disadvantages outweigh its advantages

123
Q

Hand Formula

A 
B < (P*L) to approaching breach
Burden < (probability x loss) 
- essentially a cost benefit analysis
- probability of the harm
- gravity of resulting jury/harm
- Burden of adequate precautions

Policy

  • Somewhat arbitrary valuations
  • Difficult to measure loss
  • Efficiency does not always equal more justice
124
Q

Hand Formula Case

A
  • Boat loading hatch death case
  • If the probability of an accident were high, then not taking extra precautions would have imposed negligence- he would have been expected to rope off area, light the hallway, etc. But P was low. Non-negligence was reasonable, affirmed.
125
Q

Exceptions to the RP for Breach

A 
- Physical disabilities
\+ Test - reasonable person with similar disability
- Negligence per se
- Professional negligence
- Children standard of care
126
Q

Non-exceptions to the RP for Breach

A

Emergency is NOT an exception

  • A situations of emergency not of the D’s making is relevant
  • Test: RP in similar emergency

Mental disability is NOT an exception

127
Q

Child Standard

A

Reasonable child of similar age, maturity, and experience

Applies to:

  • States without age limits, minors up to 18
  • Children above age limit, until 18

Some states exempt young children from liability in negligence

  • No limits - any child can be liable in negligence
  • Very young children cannot be liable (exact age varies)
  • Under 7 - No liability in negligence; 7-14 rebuttable presumption - no negligence; over 14- regular negligence
  • Restatements - a child less than 5 is incapable of negligence

Policy

  • Fairness - less developed
  • able to make mistakes and learn
  • social investment for future
  • lack of experience
  • kid activities are generally low risk and less damage
128
Q

Exceptions to Child Standard

A

Children held to RP standard when

  • adult activity - activity normally undertaken only by adults for which adult qualifications are required
  • inherently dangerous activities (dangerous to OTHERS)
129
Q

Adult Activity Case

A

Neumann v. Shlansky

  • Golf kid hit ball
  • Kid likely liable because golf is an adult activity and a ball is a dangerous missile. Duty of reasonable care to avoid injuring others while golfing. Kid knew rules.
130
Q

Standard for Mental Disability or Illness

A

Test for physical disabilities - RP with similar disability

Test for mental disabilities:
- In general and most of the time: insanity is not a defense to negligence
- policy
+ between 2 innocents, the one that caused the harm should pay
+ could lead to false pleads of insanity
+ induce family members to act

131
Q

Exception to Standard for Disability

A

When someone is suddenly overcome with an unknown disability (heart attack)

132
Q

Mental Illness Case

A

Breunig v. American Family Insurance Co

  • Crazy lady who said she was following god into a car accident
  • She had delusions for a month before, so it was not a sudden onset. Negligent because she chose to drive.
  • Majority rule holds an insane person to a RP standard of care EVEN IF it was sudden and you had no prior notice. OUTLIER

Torts (4 decks)

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