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Torts > Neg: Duty & Breach > Flashcards

Neg: Duty & Breach Flashcards

1
Q

define General Duty of Reasonable Care

A

avoiding unreasonable behavior in light of foreseeable risk under the circumstances

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2
Q

To whom does one generally owe a general duty of reasonable care?

A

foreseeable persons exposed to foreseeable risks from the person’s conduct (no special relationship necessary)

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3
Q

How is the general duty of reasonable care measured?

A

By what is expected of a reasonable person under the same conditions

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4
Q

Who is the “reasonable person”?

A
  • NOT what YOU would have done
  • conduct matters, not state of mind
  • Would a reasonable person have known there was foreseeable harm?
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5
Q

What is the legal principle of Vaughn v. Menlove?

A

acting honestly and to the best of your ability or judgment doesn’t absolve culpability

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6
Q

What is the legal principle in Reed v. Tacoma? (girl drove across RR tracks because she reasonably believed she had time)

A
  • error in judgment doesn’t necessarily mean she acted unreasonably
  • Would others have made the same decision?
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7
Q

Should there be a “reasonable woman” standard?

Edwards v. Johnson (woman accidentally shot a man who came to her house late at night)

A

no; same standard of care, but gender can be considered as part of “all circumstances”

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8
Q

define the Emergency Doctrine

A
  • requires unforeseen event, complication of circumstances, sudden occasion for action
  • many jdx have abandoned it
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9
Q

evaluate the Emergency Doctrine in Foster v. Strutz (fight in a parking lot, car backed into P)

A

the emergency doctrine didn’t apply because Ds didn’t react immediately; they had 10-15 seconds to act

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10
Q

What is the standard of care for the physically handicapped?

A

they’re held to the standard of a reasonable person with a similar disability

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11
Q

What is the standard of care for mentally ill individuals?

A
  • no different standard
  • sudden mental illness isn’t the same as sudden physical disability (i.e. heart attack)
  • should pay for their damage
  • persuades caregivers to look out for them
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12
Q

What is the standard of care for children?

A
  • reasonable child standard: what a child of like age, intelligence, experience, & maturity would do under the circumstances
  • common law: children under 7 aren’t negligent
  • some states have statutory limitations
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13
Q

What is the standard of care for those with superior skills (i.e. professional taxi drivers in a car accident)?

A

standard of care doesn’t change, but D’s special skills may affect jury’s breach determination (i.e. what is foreseeable or unreasonable)

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14
Q

What is BvPL (Learned Hand Formula)?

A

-Burden (of following duty) must be less than Probability (of injury) and Loss potential (magnitude of injury)

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15
Q

Evaluate BvPL in US v. Carrol Towing (D set barges adrift when attendant was away for 21 hours)

A

B (keeping attendant on barge) was less than P (chance that unattended barge would cause an accident) and L (amount of damage accident could cause)

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16
Q

Evaluate BvPL in Cooley v. Public Service (woman sued for being injured by telephone cable)

A
  • B (putting cables underground) was greater than P (someone being electrocuted) and L (severity of injury)
  • D didn’t breach
  • also, public’s need for electricity was greater than the risk of injury
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17
Q

Evaluate BvPL in McCarty v. Pheasant Run (woman was assaulted in a hotel room because she didn’t know there was a sliding door with street access)

A
  • B (increased security, restricting access to upper floors) > P (someone breaking in) and L (harm caused by intruder)
  • reasonable person would have opened curtains and found/locked door
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18
Q

What’s the role of custom (not medical/legal) in determining standard of care?

A

custom can be used as evidence of negligence when it exists to prevent the harm suffered

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19
Q

Evaluate the role of custom in Trimarco v. Klein

bathtub enclosure shattered

A
  • proof of a customary practice (to replace glass doors) that D ignored, and ignoring it caused the accident = establishes liability
  • jury must still be satisfied with reasonableness
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20
Q

Evaluate the role of custom in TJ Hooper

tugboats that didn’t have radios and were lost in a storm

A
  • proof that radios weren’t custom, but since B (providing radios) was so much lower than PL, D was still liable
  • bad industry customs aren’t used by courts
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21
Q

What are Judicial Standards of Care?

A
  • alternative to reasonable care standard
  • generally frowned upon
  • judges enforce their own standard of care for the situation
  • ex: Goodman (Holmes created standard that motorists at RR crossings should stop and get out)
22
Q

How do you determine if a safety statute/regulation should be the standard of care?

A

Relevancy test (legislative intent):

1) Was the injured person in the protected class?
2) Was the injury the type the statute intends to prevent?

23
Q

What are the 4 classifications of Negligence Per Se?

A

1) Strict Neg. Per Se: No excuse permitted
2) Neg. Per Se 1: Presumption of breach, but D can use specific excuses
3) Neg. Per Se 2: Presumption of breach, but D can show reasonable care
4) Evidence of Neg: still uses Reasonable Care standard
* a minor’s violation of a statute isn’t Neg. Per Se, only evidence of negligence

24
Q

What is circumstantial proof of negligence?

A
  • Fact-finder must draw an inference from the evidence to the existence of fact
  • Reasonable inference can be drawn
25
Q

What is Res Ipsa Loquitor?

A
  • “the thing speaks for itself”
  • party is presumed to be negligent if they had exclusive control of whatever caused the injury, even if there’s no specific act of negligence
26
Q

Evaluate Res Ipsa Loquitor in Byrne v. Boadle

barrel fell out of a warehouse & hit P in the head

A

A barrel doesn’t normally fall out a window without some form of negligence occurring. The barrel was under D’s exclusive control, so the negligence wasn’t caused by 3rd parties and the P couldn’t possibly have caused the barrel to fall.

27
Q

What is the professional standard of care?

A

the custom sets the standard, and deviation from that is breach

28
Q

What are the 2 types of medical malpractice?

A

1) negligent performance

2) informed consent

29
Q

What is the standard of care for medical malpractice (negligent performance)?

A

the doctor must act with the degree of care, knowledge, & skill ordinarily possessed by an AVERAGE (not reasonable) member of the profession within his field
*some allowance is made for local resources

30
Q

What are the 2 standards of care for medical malpractice (informed consent)?

A

1) Reasonable Physician: doctor must disclose risks that a reasonable doctor with the same training would disclose under the circumstances
2) Reasonable Patient (Lay Standard): doctor must disclose risks which a reasonable patient would have considered in making the decision

31
Q

What is the standard of care for legal malpractice?

A

judged based on what attorneys of ordinary skill would do

32
Q

What was the new principle of Gen. Duty of Reasonable Care added by MacPherson v. Buick?

A
  • Conduct with foresight of risk can be negligence even if there’s no contract between P and D
  • if a product is reasonably expected to be dangerous & is known to be used by those other than the original purchaser, there is a duty to other users too
33
Q

What are the 3 classifications of Occupiers of Land?

A

1) Invitees: enter property w/ owner’s consent for mutual benefit
2) Licensees: enter property w/ owner’s consent for their own benefit
3) Trespassers: enter property without owner’s consent

34
Q

What are the duties owed to each type of land occupier?

A

1) Invitees: due a reasonable standard of care; owner has a duty to protect against dangerous conditions AND to discover dangers
2) Licensees: owner has duty to warn of dangerous conditions which owner has ACTUAL knowledge of; no duty to discover dangers
3) Trespassers: owner has a duty not to willfully/wantonly injure

35
Q

What changed about occupiers of land in Rowland v. Christian?
(tenant’s guest was injured by the faucet)

A

status of the injured guest didn’t apply; owners & occupiers owe a single duty of reasonable care in all circumstances (eliminated 3 classifications)

36
Q

What does AAFDEAL stand for? (public policies that influence duty decisions)

A 
A-vailabilty of insurance
A-llocation of loss
F-airness
D-eterrence
E-con. Considerations
A-dmin. Concerns
L-egislative Concerns
37
Q

When is there a duty to assist or rescue? (6 situations)

A

1) Special relationship
2) voluntary assumption of duty
3) innocent prior conduct (when one neg. injures another, they have duty to assist)
4) reliance on gratuitous promise
5) intentional prevention of aid
6) statute (i.e. Samaritan Law)

38
Q

What was the legal principle of Tarasoff? (mental patient told his shrink of his intentions to kill a 3rd party)

A

when a victim is reasonably known and targeted, a special relationship is created between the doctor and the victim

39
Q

What is the duty of landowners to protect against criminal conduct according to Delta Tau Delta? (girl assaulted by non-Delta party guest)

A
  • landowners must take reasonable precautions to prevent foreseeable criminal acts against invitees
  • criminal acts can be foreseeable based on past instances of that type of crime
40
Q

What is the public duty doctrine? (DARK)

A

Municipalities aren’t liable for failure to give police protection unless: 1) DIRECT CONTACT between cops & victims

2) cops ASSUMED a DUTY through a promise to act
3) victim justifiably RELIES on city’s promise of protection
4) the city KNOWS that inaction could lead to harm

41
Q

What is the traditional rule for recovery of emotional damages?

A

no recovery in the absence of physical injury

42
Q

What are the 3 exceptions to the traditional rule of recovery for emotional damages (ED)?

A

1) Impact Rule: ED allowed where there’s an impact, even if no injury
2) Zone of Danger I: ED allowed if P was in zone of danger & feared for their own well-being
3) Zone of Danger II: ED allowed if P was in zone of danger & feared for well-being of a friend or family member

43
Q

What are the 4 requirements to recover for Bystander Emotional Harm (NIED)?

A

1) bystander must be closely related
2) bystander must have witnessed the event (or been simultaneously aware it was happening)
3) victim must have been seriously injured or killed
4) bystander must have suffered serious emotional injury

44
Q

When does D have a duty to protect the emotional well-being of an individual (Direct Victim)?

A

1) when prescribed by law/statute
2) when assumed by D (i.e. Molien, doctor told patient to tell husband about STD; Dr. assumed duty to husband)
3) when there’s a special relationship

45
Q

What is necessary to collect for emotional damages for fear of contracting AIDS?

A
  • P must have actually been exposed to HIV, not just feared exposure
  • P doesn’t have to show likelihood of developing AIDS
46
Q

What are the 2 types of pre-natal torts?

A

1) wrongful birth: mom’s claim for damages from failure to properly perform exam (mom wasn’t properly informed to give her option of abortion)
2) wrongful life: supposed to be child’s claim that his life isn’t worth living due to defects; courts won’t consider this claim

47
Q

What is consortium loss?

A
  • compensates for lost companionship, affection, household services, financial support, etc.
  • only survives if primary victim’s claim survives
  • includes husbands, wives, parents, children, sometimes gays
48
Q

What is pure economic loss?

A

-economic loss caused by negligence without physical injury or property damages

49
Q

What is the duty regarding economic loss?

A
  • D owes a duty to take reasonable measures to avoid economic damages to an identifiable class
  • class must be foreseeable with a causal link to negligence
50
Q

define Breach of Duty

A

Not doing what you were legally obligated to do, or doing what you were legally obligated NOT to do

Torts (6 decks)

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