Scope Flashcards
Physical Harms - Scope List
- Special Relationship
a) Fiduciary
b) Familial (PLUS COMPANIONS ON A SOCIAL VENTURE)
c) Status (+ Heins Reasonableness Factors)
d) Obligation to Protect Against Criminal Acts
i) Landlord-Tenant - PHCNS
ii) Merchant-Customer - SPTB
iii) Timberwalk Factors - PPRFS
e) Undertakings - Fiduciary - MR
f) Contracts - Enhancement of Risk
- Voluntary Assumption of a Duty
- Special Rules Regarding Duties to 3rd Parties
a) Duty to Protect
b) Social Host Liability
c) Negligent Entrustment - SKIS
d) Negligent Misrepresentation - DPP
e) Undertakings to 3rd Parties - MAR
Special Relationship
Trust, dependency, superior position
Special Relationship - Fiduciary
- Common carrier-passanger (Upmost care except for Bethel)
- Innkeeper-Guest (Upmost care)
- Landlord-Tenant
- Merchant-customer
- School-student
Special Relationship - Familial
Nuclear family
PLUS COMPANIONS ON A SOCIAL VENTURE
Special Relationship - Status Relationship
Types
1) Trespasser (w/o consider) - no WWI (some jur. no creation of traps)
a) Frequent Trespasser: regularly enter property w/o consent); same privileges of licensee (T+ warn of known dangers)
b) Discovered: (T+ warn of dangers; some jur. limited reasonable care)
c) Child: reasonable care
- Licensee (enters w/ permission; social visitor) = T+ warn of known dangers; reasonable care with active conduct (irish coffee)
- Invitee (serves interest of landowner - business/public) = L+ reasonable care (inspection)
4 Juris Approches
1. Traditional
2. Reasonable care
a) could D foresee entry
b) Did D take reasonable precautions
3. RC - Trespassers
4. RC - crim trespassers
Obligation to Protect Against Criminal Acts - 2 Relationships
Landlord-Tenant (foreseeable and w/i control) - PHCNS
1. PUBLIC use (lobby, pay phones)
2. HIDDEN dangers if not disclosed or repaired
2. COMMON areas (hallways, stairs)
3. NEGLIGENT repairs
5. SOME jur is reasonable care (reasonable inspections and repairs)
Merchant Customer Duty IF … SPTB
1. SPECIFIC harm rule: specific and imminent harm
2. PRIOR similar incidents: history of similar crimes on or near premises
3. TOTALITY of circumstances: reasonably foreseeable (general lvls of crime in area)
4. BALANCING test
a) Foreseeability against burden of protection
b) Prior incident
c) Cost effective way to prevent crime
+ RIGHT TO RESIST (reasonably)
- Timberwalk Factors (both Landlord and merchant) - PPRFS
a) PROXIMITY
b) PUBLICITY - media attention
c) RECENCY
d) FREQUENCY
e) SIMILARITY
Heins Reasonableness Factors for deciding if Reasonable Care was given
FOURTBS
- FORESEEABILITY of the harm
- OPPORTUNITY and ease of repair or correction or warning
- USE to which premises are put or are expected to be put
- REASONABLENESS of the inspection, repair, or warning
- TIME, manner, and circumstances of entry
- BURDEN on landowner/community in terms of providing protection
- PURPOSE of entrant in coming on the premises
Undertakings - Fiduciary
MR
- MAKES harm worse
- RELIES on actor exercising reasonable care
Contracts
- Privity (directly included in the contract)
- Tantamount to Privity (married to someone who is listed in contract)
- 3rd Party beneficiary
- Reasonable foreseeability
Enhancement of Risk
- Negligent - MF
- FORESEEABLE
- or victim is MEMBER of public at large
- Non-negligent - innocent
1) Injury (victim helpless + continued risk)
2) Risk (risk continuous and foreseeable, relates to conduct, + superior position to intervene)
Voluntary Assumption of a Duty
- Voluntarily taking charge of another person or property
- Duty to Rescue
a) imperiled
b) helpless and unable to protect themselves
c) reasonable care in stopping aid/some jur. reasonable care stopping aid AND not in worse position than when started aid
Special Rules Regarding Duties to 3rd Parties - Types Listed
- Duty to protect
- Social Host liability
- Negligent Entrustment
- Negligent Misrepresentation
- Undertakings to 3rd parties
Special Rules regarding duties to 3rd parties - Duty to Protect
1/5 - Duty to Protect:
Special Relationship (parents/child; custodians; employers; mental health)
1. Can find who person is
2. 3rd party identifiable
3. Knows or should know that person poses risk of death/body injury (no duty for self-harm)
4. Must inform law enforcement and victim
5. TX no duty
Special Rules regarding duties to 3rd parties -Social Host Liability
2/5 - Social Host Liability
- Commercial Vendors - liable to 3rd parties (not in CA) (TX licensed + unlicensed, obvious and psoe risk to others)
- Social Hosts - usually not liable EXCEPT in TX w/ minors (UNLESS given by parent or spouse)
Special Rules Regarding 3rd Parties - Negligent Entrustment
3/5 - Negligent Entrustment - SKIS
- SUPPLY chattel directly/indirectly
- KNOW or have reason to know
- action/reasonable INFERENCES on what they know
- SOME jur look at who owned chattel at time of accident, some look at who owned at time of conveyance
Special Rules Regarding Duties to 3rd Parties - Negligent Misrepresentation
4/5 - Negligent Misrepresentation - DPP
- D knows information will be relied upon
- P or 3rd party relied on info
- Info results in PHYSICAL harm on P or 3rd
Special rules regarding duties to 3rd parties - Undertakings to 3rd parties
5/5 - Undertakings to 3rd parties
- MAKES harm worse
- ASSUMING obligation owed by another
- RELIES on actor exercising reasonable care
Rowland Factors - The Scope of Duty Absent a Special Relationship
A lot of the Rowland factors look at a tort goal of deterrence and whether it makes sense to use tort to incentivize care (to get these defendants to make a cost effective investment in safety
CAMPFBD
1. Closeness btw D’s conduct and injury
2. Alternative courses of conduct
3. Moral blame attached to conduct
4. Policy of preventing future harm
5. Burden to D & effect on the comm. of imposing duty
6. Foreseeability of harm to P
7. Degree of certainty that the P suffered injury
Emotional Harm - Scope List
- Direct Infliction of Emotional Distress - EXPOSURE
- Direct Infliction of Emotional Distress - Physical Harm
- Indirect Infliction of Emotional Distress
Emotional Harms - Direct Infliction of Emotional Distress - EXPOSURE TO TOXIC SUBSTANCES
- Buckley/Impact Rule
- Physical Touching (plus imminent danger)- Norfolk (present disease guarantor)
- Must have symptoms related to exposure
- Severe emotional distress - Potter (anxiety in some circum.)
a. CA #1 (no imminent harm)
- P is more likely than not going to get the disease in the future
- Based on medical evidence
- Severe emotional distress
b. CA #2 (fraud, oppression, or malice)
- Significant increase in contracting disease, PLUS
- Fraud, oppression, or malice (carelessness does not necessarily count as fraud; e.g., intent to injure, intentional misrepresentation, concealment of a material fact) - Special Circumstances Rule
- Reasonable Person
- Norfolk (present disease guarantor)
Direct Infliction of Emotional Distress
Never at risk of physical harm
- Physical Impact Rule - PR
a) PHYSICAL touching
b) RESULTED in emotional distress - Zone of Danger Rule - SOAS
a) SUBJECTIVE fear death/bodily injury
b) OBJECTIVELY reasonable fear of death/bodily injury
c) ACTUAL risk of death/bodily injury (in zone of danger)
d) SEVERE emotional distress - Reasonable Person Test
a) P shows reasonable person would suffer emotional distress under circumstances - Physical Manifestation
a) Some jurs. allow as an add-on for guarantor of authenticity
b) TX - sole test for emotional distress claim (severe manifestation) - Special Circumstances - DACT, MEL
-DIAGNOSIS of serious disease
-ABUSE-mental/spouse
-CORPSE (mishandling)
-TELEGRAM abt death
-MISTREATMENT of employee
-EXPOSURE to HIV
-LOSS of fetus
Indirect Infliction of Emotional Distress
- Zone of Danger - SOAPS
-SUBJECTIVE fear death/bodily injury
-OBJECTIVELY reasonable fear of death/bodily injury- ACTUAL risk of death/bodily injury (in zone of danger)
- PLUS witnessing death/bodily injury - loved one
- SEVERE emotional distress
- Dillon/Portee - CONS
- CLOSE marital or intimate relationship/close formal relationship
- OBSERVATION at scene (sensory and contemporaneous)
- NEAR scene or objectively reasonable/subjective belief that serious injury occurred even though it hadn’t
- SEVERE emotional distress
MODIFICATIONS
i) Cohabitation allowed
ii) Scene untampered/intact if arrived after
iii) Virtual-present
- Reasonable Person
- Reasonable person in P circumstances suffer severe emotional distress
Private Right of Action Checklist
- Express
- Implied (Uhr Test) - MAC
- MEMBER of protected class
- ADVANCE leg. purpose (prevent harm)
- CONSISTENCE w/ leg. scheme (way intended to prevent harm)
Product Liability Checklist
Scope
1. User
2. Purchaser
3. Foreseeable bystander
Nature/Breach
1. Cost/benefit
2. CONSUMER expectations
