MEE Essentials: Torts Flashcards
Negligence Rule Statement (open all essays)
In any negligence action, a plaintiff must demonstrate that the defendant owed a DUTY OF CARE, that the defendant BREACHED the duty, that the defendant’s conduct was the ACTUAL and PROXIMATE cause of the plaintiff’s INJURIES, and that the plaintiff suffered DAMAGES
Child standard of care: tender years
Some states recognize the tender-years doctrine, in which a child under seven years old cannot be found negligent in tort.
Standard of care for child
A child owes the duty of care of a child of similar AGE, INTELLIGENCE, and EXPERIENCE, acting under the same CIRCUMSTANCES.
Child standard of care exception: adult activity
If the child is engaged in an activity normally undertaken only by adults and for which adult QUALIFICATIONS are required, then the child will be held to the same standard of care as a reasonably prudent ADULT engaged in SUCH ACTIVITY.
Undiscovered trespasser standard of care
A trespasser who enters land without PERMISSION OR PRIVILEGE who the possessor of land does not know about is NOT OWED ANY duty of care
Discovered trespasser standard of care
A trespasser that the land possessor KNOWS OR SHOULD HAVE KNOWN about is owed a duty by the possessor to warn or make safe ONLY any unreasonably DANGEROUS concealed ARTIFICIAL CONDITIONS that the land owner KNOWS OF
Attractive nuisance doctrine
The premises possessor is liable if
1) he knows or should know that CHILDREN are LIKELY to trespass on his property
2) the property contains a DANGEROUS ARTIFICIAL attraction creating risk of DEATH OR BODILY HARM
3) that young children are unlikely to appreciate the danger because of their YOUTH
4) the BURDEN of eliminating the danger is SLIGHT relative to the risk involved and benefit to the possessor and
5) possessor fails to exercise REASONABLE CARE to protect the children
*does not apply to children engaged in adult activity
Licensee rule statement
A licensee is a person given express or implied permission by landowner to enter the property, often as a social guest. The landowner has a duty to WARN OR MAKE SAFE any CONCEALED DANGERS that the landowner KNOWS OF
Invitee rule statement
An invitee is a person who enters land for the purpose of conferring an economic benefit, such as a customer in a store, or who enters land open to the public at large, like a church or museum. The premises possessor must WARN OR MAKE SAFE ALL DANGERS that the landowner KNOWS OR SHOULD KNOW OF. In this instance, the premises possessor has a DUTY TO INSPECT
Negligence per se statute rule statement
A plaintiff can sue under a theory of negligence per se when
1) a statute imposes a duty
2) the defendant breached the duty
3) the plaintiff is part of the class of persons that the statute intended to protect
4) the injury is the type that the statute was intended to prevent
This establishes DUTY and BREACH, a plaintiff must still prove CAUSE and HARM
Res ipsa rule statement
A plaintiff may recover under a theory of res ipsa loquitor, which allows a jury to infer negligence when
1) the event would generally not occur in the absence of negligence
2) the defendant(s) had exclusive control over the instrumentality AND
3) the plaintiff eliminates other potentially responsible causes
Eggshell skull rule
Under the eggshell skull rule, a defendant takes his victim as he finds him, and is responsible for any unforeseen damages that a plaintiff suffers even when those damages are in excess of a normal victim.
Negligent infliction of emotional distress
A claim of negligent infliction of emotional distress is satisfied by the following elements:
1) D’s negligence caused FORESEEABLE RISK OF HARM to P
2) P was in zone of danger
3) P suffered emotional distress as a result of the event (some jdx: must have PHYSICAL MANIFESTATIONS)
Bystander NIED
For a party to recover under a theory of bystander NIED, the plaintiff must
1) witness firsthand an emotionally distressing event NEAR THE SCENE (OR: zone of danger)
2) that harms a CLOSE RELATIVE of P
3) P suffers EMOTIONAL DISTRESS
Comparative negligence (majority rule statement–pure comparative v. modified comparative)
The trier of fact apportions fault and damages among parties.
Under a theory of PURE comparative negligence, a plaintiff’s recovery can be PROPORTIONALLY reduced by his own negligent behavior.
Under a theory of MODIFIED comparative negligence, a plaintiff’s recovery is reduced proportionally by his own negligent behavior, BUT his recovery is BARRED if he is MORE THAN 50% AT FAULT.
Contributory negligence rule statement
At common law, if a jury finds that the plaintiff’s negligence contributed to his injuries to any degree, recovery is barred. Most states have abandoned this doctrine.
Battery rule statement
Battery is a tort where a person
1) acts with intent
2) to cause HARMFUL OR OFFENSIVE CONTACT
3) to the PERSON of another
4) and such contact directly or indirectly results.
Does NOT need to be conscious
False imprisonment rule statement
A person is falsely imprisoned when
1) D acts with INTENT TO CONFINE or restrict person to confined area
2) actual confinement OCCURS
3) P KNEW OF or is HURT BY the confinement
Consent to intentional torts rule statement
Consent is a defense to an intentional tort. Consent can be express or implied.
Employer/employee vicarious liability general rule statement
Employers are vicariously liable for the torts of their employees if the torts are committed WITHIN THE SCOPE of employment under the doctrine of RESPONDEAT SUPERIOR
Employer/employee vicarious liability for intentional torts
Intentional torts are usually outside the scope of employment unless they were done to BENEFIT the employer or they were FORESEEABLE
Direct employer liability
An employer can be DIRECTLY liable for his own negligence in practices of negligent SUPERVISION, HIRING, FIRING, OR ENTRUSTMENT
Indemnification rule statement
Indemnification is FULL reimbursement for damages paid to a plaintiff, and usually occurs when one defendant can seek 100% of damages from the other defendant.
Usually occurs when person paying was NOT AT FAULT (e.g. employer may seek indemnification for employee’s acts if employee was solely liable)
Who does strict products liability apply to?
MERCHANTS ONLY, not casual sellers of goods
Manufacturing defect theory: when must defect have been detected
Product MUST be defective from time it left manufacturer’s hands
Who is liable for manufacturing defects?
All COMMERCIAL SELLERS including store that sold the product
