MEE - Torts Flashcards
*What is Battery?
The prima facie case for battery consists of: (1) and act by the defendant that brings about harmful or offensive contact to the plaintiff’s person (2) intent on part of the defendant to bring about such armful or offensive contact; and (2) causation. Intent is satisfied when the defendant acts with the desire to produce the legally forbidden consequence.
*What is negligence?
The prima facie case for negligence requires the plaintiff to show (1) a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (2) breach of that duty by the defendant; (3) that the breach was the actual and proximate cause of the plaintiff’s injury; and (4) damage to the plaintiff’s person or property.
Whenever a person engages in an activity, he is under a legal duty to act as a reasonably prudent person engaged in the same or similar activity. If a defendant’s conduct creates and unreasonable risk of injury to persons in the position of the plaintiff , the general duty of care extends from the defendant to the reasonably foreseeable plaintiff.
*What is the doctrine of respondeat superior?
Under the doctrine of respondeat superior, and employer is vicariously liable for tortious acts committed by his employee within the scope of the employment relationship.
*How may statutory laws result in negligence by the defendant?
A statute providing for criminal penalties may establish a specific duty that will replace the more general duty of care in negligence cases. The statute will apply if (1) it was designed to prevent the type of harm suffered by the plaintiff, and (2) the plaintiff is within the protected class. In most jurisdictions, an unexcused violation of a statutory standard of care is negligence per se, which means that it establishes to first to prima facie elements of negligence.
Statutory standard of care does not apply if (1) Compliance is more dangerous than non-compliance, or (2) Compliance is impossible under the circumstances.
Plaintiff must still prove actual causation and proximate causation and damages to succeed.
*What specialized standards of care?
Professionals: Professionals must act with the knowledge and skill of a member of their profession in good standing in similar communities. They are held to a national standard of care. A part of this care, a doctor proposing a course of treatment has a duty to provide the patient with enough information about the risks to enable the patient to make an informed consent to the treatment.
Children: Children are held to the standard of care of a reasonable child of similar age, education, intelligence, and experience. Generally children under 5 lack the capacity to be held negligent. Children engaged in adult activities must conform to the adult standard of care in that activity.
Custom or usage in an industry: Custom can be used to establish a standard of care, but failure to adhere does not automatically give rise to breach of duty, nor does compliance with an industry custom automatically establish a lack of negligence.
Special Relationship: Generally there is no duty to prevent a third person from injuring another. However, such a duty will be imposed when the D had a special relationship with the third person that gave the defendant the actual ability and authority to act, and the D knew or should have known that the third person was likely to injure the other person.
*What is the default standard of care?
D owes a duty of care to behave like a reasonably prudent person under the circumstances to all foreseeable plaintiffs. RPP is considered to be someone with D’s physical characteristics (such as blindness) but with the knowledge and mental capacity of an ordinary person.
Foreseeable plaintiffs are those within the zone of danger. The zone of danger is the area around D’s activities in which a P could foreseeable be injured. If D puts himself in danger and a third person is harmed during an attempted rescue D can be held liable for the rescuer’s injuries, even if unforeseeable. This does not apply to emergency personnel.
As a general rule, no duty is imposed upon a person to come to the aid of another absent a special relationship between the parties. However, if the person gratuitously comes to the aid of the other, the actor must exercise due care in providing the assistance, and must not leave the person in a worse position that he found her.
*What is Actual Cause?
Establishes a causal connection between the alleged breach of duty and the resulting injury. 3 tests:
But-For Test: But for D’s alleged breach of duty, P’s injury would not have occurred.
Substantial Factor Test: For multiple causes of P’s injury. D’s breach is an actual cause if it was a substantial factor in bringing about P’s injury. This is used if multiple causes bring about P’s injury and any one of them alone could have cause the injury. (fires negligently started on ones property creeps into another’s property which then causes harm to P’s land)
Burden-Shifting Test: This is used if multiple Ds act (often simultaneously), only one causes P’s injury, but it’s unclear which D caused the injury. Burden shifts to D to prove that a codefendant is the actual cause of the injury. If no D can prove, all Ds are jointly and severally liable.
*What is Proximate Cause?
Foreseeability: D is liable for the foreseeable outcome of his conduct. Foreseeable does not mean likely.
Direct causes: If P’s injury is the direct result of D’s negligent conduct, D is liable unless the outcome is unusually bizarre or unpredictable.
Indirect Causes: Intervening forces that occur after D’s conduct to cause P’s injuries will not cut off D’s liability if they are foreseeable. An intervening force is usually foreseeable if either: (1) It is a normal response or reaction to D’s negligent act, or (2) D’s negligence increased the risk that an intervening force would cause harm to P. Injuries to rescuers are usually foreseeable.
Eggshell P: D takes P as he finds him and is liable for the full extent of P’s injuries, regardless of whether they are foreseeable.
*What are negligence damages?
P must prove damages, which are not presumed in negligence cases. Nominal damages are not available.
Personal Injury: D must compensate P for all damages including past, present, and prospective damages. Economic and noneconomic damages are available.
Property Damage: P can recover reasonable cost of repair. If property is irreparable, full market value at the time of accident.
Punative Damages: Only recoverable if D’s conduct is wanton and willful, reckless, or malicious. Usually not available in negligence cases. More likely in intentional torts. P can recover interest from date of damages in personal injury cases, and attorney fees. P must take steps to mitigate damages.
*What is Comparative negligence?
D can establish that P’s injuries are at least partially the result of P’s own negligence. Fact-finder apportions fault between P & D and reduces P’s damages accordingly.
Partial/Modified Comparative: P can only recover damages if he was less than 50% at fault (or 50% or less in some states, and over 50% can make claim in actionable)
Pure Comparative negligence: P can recover damages even if he was more than 50% at fault.
*What is Contributory Negligence?
P is barred from recovery if D establish that P’s negligence contributed to her injuries.
P can rebut D’s contributory negligence claim by proving D had last clear chance to avoid the injury-causing accident.
*What is assumption of risk?
D can deny P’s recovery by establishing that P assumed the risk of damage caused by D’s act. For this D must show both: (1) P knew of the risk (subjective), and (2) P voluntarily proceeded in the face of that risk. P can assume risk by agreement, but less likely it will be enforced if part of adhesion contract.
What is an abnormally dangerous activity?
An activity may be characterized as abnormally dangerous if it involves substantial risk of serious harm to person or property even when reasonable care is exercised. Whether an activity is abnormally dangerous is a question of law, that the court can decide on a motion for directed verdict. The court generally impose two requirements for finding an activity to be abnormally dangerous: (1) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (2) the activity is not a matter of common usage in the community.
*What is vicarious liability?
In general, a principal will not be vicariously liable for the tortious acts of its agent if the latter is an independent contractor. One broad exception, however, is when the contractor is engaged in inherently dangerous activities, such as excavating next to a public sidewalk. Such an activity does not have to be classified as abnormally dangerous for which strict liability applies; it need only be an activity in which there are special dangers to others inherent in or normal to the activity.
*What is false imprisonment?
To establish a prima facie case of false imprisonment, the plaintiff must show: (1) an act or omission to act by the defendant that confines or restrains the plaintiff to a bounded area; (2) intent on the part of the defendant to confine or restrain the plaintiff; and (3) causation. Actionable confinement encompasses the failure to provide a means of escape when under a duty to do so. Hense, if the plaintiff has lawfully come under the D’s control and it would be impossible to leave without the D’s assistance, the intentional withholding of such assistance will constitute false imprisonment.
