Tort Law Flashcards
Elements of negligence
Owed duty of care
Breached duty of care
Proximate cause
Actual injury/damage
Reasonable person test
Whether person’s conduct would be the conduct of a reasonable person under the circumstances
High degree of care situations
Common carriers
People who handle/store dangerous materials
Proximate cause
Cause that produces and event and without which the event would not have happened
“Lighted squib case”
Original thrower of squib found at fault though squib was thrown after that
“But for” rule
Plantiff’s harm could not have occurred but for the defendant’s act
Substantial factor rule
Used to determine proximate cause by determining which of the acts are significant factors in causing the harm
Forseeability rule
When an ordinary person would have forseen the harm
Concurrent causation
When each of two or more defendants is liable for the entire harm
If a loss can be attributed to two causes, one of which excludes the loss but one which is covered, the policy covers the loss
Negligence per se
Act considered inherently negligent because of a violation of a law or ordinance
Res ipsa loquitur
In some circumstances, negligence is inferred simply by an accident occurring
- probability that defendant was negligent
- defendant’s duty to rebut inference as the party who had exclusive control and superior knowledge of circumstances
Contributory negligence
If fault > 0%, can not recover damages
Comparative negligence
Loss is shared according to respective degrees of fault
Last clear chance
Holds party with last clear chance to avoid harm and fails to do so solely responsible for the harm
Pure comparative negligence rule
If fault < 100%, can recover damages
50 percent comparative negligence rule
If fault <= 50%, can recover damages
49 percent comparative negligence rule
Allows recovery of reduced damages as long as plantiff’s negligence is less than other party’s negligence
Slight vs. gross rule
Court decides proportions of damage
Proprietary function
Not considered part of the business of government and could be performed by a private enterprise
Statute of limitations
Requires plantiff to file a lawsuit within a specific time period after the cause of action has accrued
Statute of repose
Requires plantiff to file a lawsuit within a specific time period after a wrongful act by a defendant, regardless of when the injury occurred
Attractive nuisance
Treats children as licensees on land containing artificial and harmful condition certain to attract children
Battery
Intentional harmful or offensive physical contact
Assault
Threat of force against another personccreating fear
Defamation
False written or oral statement harming another’s reputation
Libel
Written defamatory statement
Slander
Defamation by speech
Comparative advertising
When product A makes a direct comparison to product B by name
Trade libel (product disparagement)
Intentionally false or misleading statements about the quality of the plantiff’s product, resulting in financial damage
Six elements of fraud
False representation
Misrepresentation is material
Knowingly made in reckless disregard for the truth
Made with intent to influence or deceive
Party places reasonable reliance on its truth
Actual damage results
Unfair competition
Deception, starting when one party deceives the public into buying its product in the mistaken belief that it is another party’s product
Wrongful-life actions
Lawsuit arising from a non-diagnosis of birth defects
Wrongful-pregnancy action
Damages resulting from pregnancy following a failed sterilization
Conversion
Exercise of control over another person’s personal property to the detriment of the owner
Strict liability
Absolute in nature in absence of fault when harm results from activities or conditions that are extremely dangerous, unnatural,…
Liability for animals
Does not apply to dogs and cats (unless propensity to harm); absolutely applies for wild animals
Five elements of proof in a products liability lawsuit (based on strict liability)
Seller was in business of selling products
Defect made it unreasonably dangerous
Product was defective when it left custody
Defect was proximate cause
Product reached consumer without substantial change in condition
Three major types of product defects
Defect in manufacture or assembly
Defect in design
Failure to warn
Defenses to product liability lawsuits
State of the art
Compliance with statutes
Open and obvious danger
Plantiff’s knowledge
Comparative negligence
Misuse of product
Alteration of product
Special damages
Awards sum of money for specific identifiable expenses associated with injured person’s loss
General damages
Compensates for losses such as pain and suffering (no specific measurable expenses)
Survival statutes
Preserves right of a person’s estate to recover damages the person sustained between injury and death
Enterprise liability
Requires each member of industry responsible for manufacturing harmful product to share responsibility
Alternative liability
Shifts burden of proof to each of several defendants when it is uncertain which one caused the injury
Conspiracy
When two or more parties worked together to commit an unlawful act
Vicarious liability
When one party is held liable for the actions of a subordinate or associate (due to relationship between the parties)
Ex: Principal/agent, employer/employee, parent/child
Family purpose doctrine
Holds owner of an automobile kept for family use vicariously liable for the damages incurred by a family member while using said auto
Good Samaritan laws
Person will not be liable for damages as a result of rendering aid to an injured person without compensation
Four features of class action suit
Numerosity
Commonality
Typicality
Adequacy of representation
