Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Texas Bar Exam: UBE MBE > TORTS > Flashcards

TORTS Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

What is the duty of care?

A

Defendant has legal duty to act as ordinary, prudent, reasonable person would when engaging in an activity

  • Take precautions against creating unreasonable risks of injury
  • To foreseeable persons
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Is Defendant liable for injuries to unforeseeable second plaintiff as well as first forseeable plaintiff?

A

Cardozo view (majority view) (Palsgraf v Long Island)

  • P2 must have been in foreseeable ‘zone of danger’
  • Reasonable person must have foreseen risk of injury to P2 under such circumstances
Andrews view (minority view) (Palsgraf)
- Duty to P1 extends to P2 (everyone is foreseeable)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What is required for Defendant to be liable for injuries to rescuers?

A

1) D negligently placed P/TP in peril

2) P was injured in attempting a rescue
- NOT reckless rescue

=> P is foreseeable plaintiff

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Does Defendant owe duty to police officers/firefighters?

A

Unlikely (Firefighters’ rule)

  • Public policy
  • Assumption of risk
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What is required for Defendant to be liable for wrongful birth?

A

1) Viable fetus (at time of injury)

2) Parent sues for;
- Wrongful birth (failure to diagnose defect)
- Wrongful pregnancy (failure to properly perform contraceptive procedure)

=> Parent can recover damages for;

  • Unwanted labour (medical expenses, pain and suffering)
  • Child’s defect (additional medical expenses, emotional distress)
  • NOT health child (NOT child-rearing expenses)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

What is required for Defendant to be liable for economic loss to third party?

A

1) Intended TP to receive economic benefit
- Reasonably foreseeable

2) From legal/business transaction
- Will beneficiary

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What is the applicable basic standard of care?

A

D’s conduct is measured against the reasonable, ordinary, prudent person (objective standard) (Reasonable Prudent Person standard)

Mental/Emotional (objective standard)

  • Same knowledge/experience as average member of community (or must exercise with superior knowledge as superior person would)

Physical Characteristics (modified standard)

  • Compared with reasonble prudent person with like characteristics

Intoxication (objective standard)

  • Same standard as sober people unless intoxication was involuntary
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What is the standard of care required for professionals to exercise?

A

Lawyers, Doctors, Accountants, Electricians:

  • Must use superior judgment/skill/knowledge as he actually possesses

Physicians:

  • Good standing in similar community (Traditional Rule)
  • National standard (Modern Trend)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

When are doctors liable for failure to disclose risks of treatment?

A

1) Serious risk
2) If disclosure was made => Reasonable person would have withheld consent to treatment

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What is the standard of care required for children to exercise?

A

Normal activities (modified)

  • Act as child of simalar age/experience/education/intelligence
  • NOT 5 year old child (NOT likely to be negligent)

Potentially dangerous adult activity

  • Adult standard
  • E.g. Driving vehicles
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What is the standard of care required for common carriers to exercise?

A
  • Utmost care/highest duty of care (traditional rule)
  • Ordinary negligence (modern trend)

Majority of courts continue to hold common carriers to the higher standard of care.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

What is the standard of care for innkeepers?

A
  • Ordinary negligence (modern trend)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What is the standard of care required for automobile drivers to exercise?

A

Guest and Friends in Car

  • Reasonable care (most states)
  • Recklessness (avoid wilful and wanton misconduct) (few states - Guest statutes)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What is required for bailor/bailee to exercise particular standard of care?

A

Bailee’s duty to Bailor

  • Modern view: Ordinary standard
  • Common law: High standard (sole benefit to Bailee); Low standard (sole benefit to Bailor)

Bailor’s duty to Bailee

  • Must inform known defect (sole benefit to Bailee)
  • Must inform known/should have known defect (mutual benefit)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What is the standard of care required for Defendant to exercise in emergencies?

A

D created emergency

  • Act as reasonable person would
  • Emergency NOT considered

D did NOT create emergency
- Act as reasonable person would in emergency

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

(Negligence Per Se) What is the standard of care required for statutory standard of care to replace common law standard of care?

A

Negligence Per Se:

  • Criminal law or regulatory statute imposes particular duty for the protection or benefit of others
  • Defendant violated the statute
  • Plaintiff must be in the class of people intended to be protected by the statute
  • Accident must be the type of harm that the statute was intended to protect against; and
  • Harm was caused by a violation of the statute

=> Negligence per se;

  • Conclusive presumption of duty + breach (must prove causation + damages) (majority view)
  • Rebuttable presumption of duty + breach (minority view)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

When may compliance with statute excuse violation?

A
  • Compliance creates more danger than violation
  • Compliance is beyond D’s control
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

When does an owner/occupier of land owe duty to those off his premises?

A

NOT for natural conditions

  • Exception: Trees in urban areas

Artificial conditions
- Prevent unreasonably risk of harm

-Exercise reasonable care conducting activites on land

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

When does an owner/occupier of land owe duty to those on his premises?

A

Trespassers (NO consent)
- Undiscovered - NO duty owed

  • Discovered/Anticipated
  • Must warn/Protect them P of concealed, unsafe artificial conditions (NOT natural conditions)
  • Risk of death/serious bodily harm

Attractive Nuisance Doctrine (duty owed to children)

  • Artificial condition exists where owner knows/should know children are likely to trespass
  • Owner knows/should know artificial condition poses unreasonable risk of death or serious bodily harm
  • Child, because of age, do not discover or cannot appreciate dangerous condition
  • Remedy expense (even slight cost) < Risk magnitude
  • Owner fails to exercise reasonable care

Licensee (entered premises with express/implied permission)

  • Warn/Secure P of concealed, unsafe artificial + natural conditions (NOT discoverable)
  • NO duty to repair/inspect known defects
  • Exercise reasonable care in conducting activities on the land

Invitee (entered premises for material or economic purpose (customer/open to public))

  • Owes duty of reasonable care
    • Reasonable care to inspect the property
    • Discover unreasonably dangerous conditions
    • Take reasonable steps to protect the invitee from them
  • Non-delegable duty
    • Cannot avoid the duty by assigning care of property to an independent contractor
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

When does a lessor of land owe duty to those renting his premises?

A

Landlord must:

  • Maintain safe common areas
  • Warn of hidden dangers (especially premises leased for public use)
  • Repair hazardous conditions

REMEMBER:

  • Tenant continues to be liable for injuries arising from conditions within tenant’s control
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

When does a seller/vendor of land owe duty to those purchasing his premises?

A

1) Disclose existing defects
2) Seller knew/should know of defect
3) Seller knows Buyer will NOT likely discover defect by reasonable inspection

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What is required for negligent infliction of emotional distress?

A

1) Negligence
2) Either;

Zone of Danger -

  • P was within zone of danger
  • P’s physical symptoms (emotional distress)

Bystander Case -

  • P was closely related to TP victim
  • P was present at scene of injury
  • P personally observed/perceived event
  • P’s emotional distress

Special Relationship -

  • P + D had special relationship (doctor-patient, lawyer-client)
  • Negligent mishandling of corpse

Physical Manifestation -

  • Most jurisdictions require some physical manifestation of distress (nausea, insomnia, miscarriage)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What is required for Defendant to have affirmative duty to act?

A

(Generally NO duty to act)

Assumption of duty by acting -

  • D places P in peril => D must undertake to aid P (Reasonable care required)
  • Doctor/Nurse must act with ordinary care (NOT gross care) (Good Samaritan statutes)

Placed in peril -

  • Innocently/Negligently

Special relationship

  • Parent to protect Child
  • Common carrier/Innkeeper/Shopkeeper to aid or assist patrons
  • Places of accommodation to prevent TP harm to guests

TP harm prevention (parent-child/bailor-bailee)

  • D has ability to control TP’s actions
  • D has authority to control TP’s actions
  • D knew/should know TP could cause harm
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What is the difference between negligent and intentional infliction of emotional distress?

A

NIED

  • P’s personal observation
  • Emotional distress
  • Negligence

IIED

  • D’s knowledge of P’s presence + close relation
  • Extreme and outrageous conduct causes severe emotional distress
  • Intent/Recklessness
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

What is required for Defendant to be liable for wrongful life?

A

1) Viable fetus (at time of injury)

2) Parent sues on behalf of Child for;
- Wrongful birth defect

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

What is the difference between wrongful birth and wrongful life lawsuits?

A

Wrongful birth
- Parent sues D

Wrongful life
- Parent sues D on behalf of child

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

What is breach?

A

D’s conduct falls short of level required by applicable standard of care owed to P
- Trier of fact

By preponderance of evidence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

How may custom/usage determine negligence?

A

Establishes standard of care

NOT establish breach (NOT conclusive)

Evidence of custom admissible not dispositive (Exception: professionals)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

What is res ipsa loquitor?

A

Circumstantial evidence of negligence is sufficient evidence of negligence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

What is required for res ipsa loquitor to determine breach?

A
  • Inference of negligence: P must establish that accident causing his injury is of type that would not normally occur unless someone was negligent
  • Negligence is attributable to D based on ‘lack’ of direct evidence of D’s action causing injury
    • Modern law: D is more likely than not to be negligent
    • Common law: D had exclusive control of instrument causing P’s injury
  • P’s lack of ‘voluntary’ contribution towards P’s injury

=> Establishes prima facie case for P => Avoids directed verdict for Defendant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

How may motion for directed verdict on res ipsa loquitor be determined?

A

By Plaintiff -

  • Granted: Negligence per se proven (violation of statute) + NO proximate causation issues
  • Denied: Generally

By Defendant -

  • Granted: NO res ipsa loquitor proven + NO evidence of breach
  • Denied: Res ipsa loquitor/other evidence of breach shown
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

What is required for causation?

A

1) Actual Causation (causation in fact)

  • ‘But for’ test
  • ‘Substantial factor’ test
  • Alternatives causes approach

2) Proximate Causation (legal causation)

  • Direct cause (NO interruption in chain of events)
  • Indirect cause (Interruption in chain of events; Intervening force comes into motion and combines with D’s act)

3) By preponderance of evidence

=> Conduct was cause of injury

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

What is the ‘but for’ test?

A

Single cause -

  • Act/Omission to act is cause in fact of injury
  • Injury would not have occurred ‘but for’ the act

Joint causes -

  • Several acts combine to cause injury BUT none of the act standing alone would have been sufficient
  • Injury would not have occurred ‘but for’ the acts
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

What is the ‘substantial factor’ test?

A
  • Several acts combine to cause injury
  • Either act standing alone would have been sufficient (substantial factor in causing injury)
  • Liable act is known
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

What is the alternative causes approach (Summers v. Tice)?

A
  • Several acts combine to cause injury
  • Either act standing alone would have been sufficient
  • Liable act is NOT known
  • Each D must prove he is NOT negligent (burden of proof => Defendants)
  • Otherwise ALL Ds are liable
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

What is proximate causation?

A

Defendant is liable for all harmful results;

  • Normal incidents of D’s acts
  • Within increased risk caused by D’s acts
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

How may Defendant be liable for direct proximate cause?

A

Foreseeable harmful result -

  • Even if occurred in unusual timing/manner
  • NO uninterrupted chain of events

NOT unforeseeable harmful result -

  • NO liabilty
  • NO summary judgment (material fact in dispute - foreseeability)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

How may original Defendant be liable for indirect proximate cause?

A

Foreseeable intervening force (D’s act created normal response; almost always foreseeable) -

  • Subsequent medical malpractice
  • Negligent rescuer
  • Others’ efforts to protect person/property
  • Others’ reactions
  • Subsequent diseases (D places P in weakened condition => Causes diseases)
  • Subsequent accidents (P’s original injury was substantial factor)
  • NOT unforeseeable result

Independent intervening force (D’s act ‘increased’ risk of harm caused by forces => Foreseeable) -

  • TP’s negligent act
  • TP’s crimes/intentional torts
  • Act of God

Intervening or Superseding -

  • Real issue is whether the injury is within the scope of what made the conduct negligent in the first place
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

What is the ‘Eggshell-Skull Plaintiff’ Rule?

A
  • D takes P as he finds him
  • D’s act aggravates P’s existing condition
    • Extent/severity/unforeseeability of damages NOT relevant

=> D is liable for ALL damages

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

Are damages presumed in negligence?

A

NO (Plaintiff must prove damages by preponderance of evidence)
- Unlike intentional torts

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

What type of damages can Plaintiff recover from personal injury torts?

A
  • Medical and rehabilitative expense (past and future);
  • Past and future pain and suffering (emotional distress; and
  • Lost income and any reduction in future earnings
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

Must damages be foreseeable in personal injury torts?

A

NO
- D takes P as he finds him

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

What type of damages can Defendant recover from property damage torts?

A

If damaged => Reasonable cost of repair

If nearly destroyed => Difference between the fair market value (immediately before the injury and immediately after the injury)

NOT emotional distress

44
Q

When are punitive damages available?

A

D’s conduct was;

  • Wanton and wilful
  • Reckless
  • Malicious

Generally NOT available

By clear and convinvcing evidence

45
Q

What effect does Plaintiff’s benefits received from collateral sources have on recovery of damages?

A

None (Collateral Source Rule)

  • NOT reduce recoverable damages
  • E.g. health insurance, sick pay
46
Q

What duty does Plaintiff have in recovering damages?

A

Mitigate damages

  • Personal injury: Seek appropriate treatment to effect cure + prevent aggravation
  • Property: Preserve + safeguard property
  • OTHERWISE NOT recoverable
47
Q

What type of damages are not recoverable?

A

Interest
- Since date of damage (personal injury)

Attorneys’ fees

Nominal damages

  • Even though no harm done, courts would still award small amount of money
  • But NOT in negligence
48
Q

What is the difference between intentional and negligent torts to person in terms of damages?

A

Intentional torts

  • NO damages required
  • Nominal damages recoverable
  • Punitive damages recoverable (D’s malice)

Negligence

  • Damages required
  • NO nominal damages recoverable
  • NO punitive damages recoverable
49
Q

What is the difference between intentional and negligent trespass over property in terms of damage?

A

Intentional trespass
- NO damage required

Negligent trespass
- Damage required

50
Q

How may plaintiff’s contributory negligence bar plaintiff’s recovery?

A

State does NOT adopt pure comparative negligence

  • Plaintiff’s violation of statute
  • Plaintiff’s contributory negligence as defense to Defendant’s violation of statute
  • Plaintiff’s derivative negligence
  • Plaintiff’s assumption of risk
  • UNLESS Defendant’s intentional tort, groos negligence, or recklessness
51
Q

What is imputed contributory negligence?

A

Courts find P would be vicariously liable for TP’s negligence
- Courts may charge P with TP’s negligence

52
Q

Does imputed contributory negligence bar Plaintiff’s recovery?

A

NO
- Plaintiff can sue BOTH D + TP as joint tortfeasors (to extent that each is legal cause of harm)

53
Q

What are examples of imputed contributory negligence?

A

Employer-Employee

  • Employee acted within scope of employment
  • Employee’s negligence will be imputed to Employer (P)

Partners/Joint Venturers

NOT Husband + Wife
- Whose spouse was contributorily neglegent in causing the harm, in a suit against a third party

NOT Parent + Child
- Whose parent’s negligence was contributing cause of her harm, in a suit against a third party

54
Q

What is last clear chance?

A

Whoever had last clear chance to avoid accident BUT failed to do so => Liable for negligence
- Even if P was contributorily negligent => If D had last clear chance but failed to take it => D is liable

P’s helpless peril

1) P places himself in actual peril
2) P can NOT extricate himself
3) Either;

  • -D knew/should have known of P’s predicament => D is liable
  • D could NOT have known of P’s predicament => P is liable

P’s inattentive peril

1) P places himself in actual peril
2) P can extricate himself (if attentive)
3) Either;

  • D should have known of P’s predicament => Liable
  • D could NOT have known of P’s predicament => P is liable
55
Q

What is required for Plaintiff’s assumption of risk to reduce/bar Plaintiff’s recovery?

A

When a party KNOWINGLY and WILLINGLY embraces a risk for some purpose of is own

  • UNLESS NO alternative available to proceeding in face of risk
  • Can be express or implied
  • Expressly
  • Impliedly (average person would clearly appreciate risk)
    • Sports
    • Voluntarily encounters a known, specific risk
56
Q

What is comparative negligence?

A
  • P made contributory negligence
  • Trier of fact weighs P’s negligence => Reduces P’s damages accordingly
57
Q

What is the rule for pure comparative negligence?

A

Court offsets D’s damages vs P’s liability (%) => NOT bar P’s recovery

  • P is liable for 30% => P should recover 70%
  • D is liable for 70% => D should recover 30%
  • Court will offset D’s damages vs P’s liability (D’s liability > P’s liability) => P’s net recovery will be 40% (70% - 30%)
58
Q

What is the rule for partial (modified) comparative negligence?

A

Single Defendant

  • If P/D’s liability < 50% => P recovers non-liable amount from D (vice versa)
  • If P/D’s liability > 50% => Bars P/D’s recovery (vice versa)

Multiple Defendants (joint + several liability)

  • P’s recovery is reduced by P’s liability
  • P can recover ALL damages from EITHER defendant (each D is jointly and severally liable to one another)
  • D can also recover from P + other D (if D suffered damages)
  • If P’s liability > 50% D => Bars P’s recovery
59
Q

What is the difference between pure and partial comparative negligence?

A

Pure

  • NOT bar P’s recovery
  • Presumed

Partial

  • Bars P’s recovery
  • NOT presumed
60
Q

What defenses can/cannot be used towards comparative negligence?

A

P’s assumption of risk

  • Express
  • Implied (D did NOT breach his limited duty of care to P)
  • D’s wanton/reckless conduct

NOT D’s last clear chance
- D’s last clear chance NOT prevent P’s recovery due to P’s negligence

NOT D’s intentional torts
- D’s intentional torts NOT prevent P’s recovery due to P’s negligence

61
Q

What is the difference between common law and modern law contributory negligence?

A

Common law
- Bars P’s recovery

Modern law
- NOT bar P’s recovery

62
Q

What are Defendants’ liabilities if they are (jointly and) severally liable to each other?

A

Ds acting separately (several liability)
- Divisible injuries: Each D is severally (NOT jointly) liable for OWN identifiable portion

Ds acting separately (joint + several liability)
- Indivisible injuries: Each D is jointly + severally liable for ENTIRE damages

Ds acting by agreement (joint + several liability)
- Divisible/Indivisible injuries: Each D is jointly + severally liable for ENTIRE damages

Comparative negligence rules adopted

63
Q

What is joint and several liability?

A

2 or more negligent tortfeasors combine to proximately cause P’s injury

64
Q

What exceptions prevent joint and several liability?

A

Statutory limitations (many states)

  • If P is more at fault than D => D is only responsible for his own liability portion
  • Non-economic damages are NOT recoverable

Satisfaction

  • P can recover from all tortfeasors until satisfaction
  • P recovers ENTIRE damages from one tortfeasor (satisfaction)
  • P can NOT recover more damages from other tortfeasors

Release

  • P’s claim is surrendered vs one tortfeasor (release)
  • If there is express agreement for discharge => Discharges other tortfeasors => Their liability is reduced by either; (a) agreed amount; or (b) paid consideration (whichever is greater)
  • If there is NO express agreement for discharge => NO discharge
65
Q

How may contributions be imposed?

A

Comparative contribution (most states)

  • Contribution is imposed in proportion to other Ds’ relative fault
  • D can reclaim excess payment from other Ds
66
Q

What is the difference between contribution and indemnity?

A

Contribution
- Apportionment of liability among tortfeasors

Indemnity
- Shift entire loss to one tortfeasor from other

67
Q

What is the procedure for indemnification?

A
  • Non-paying Tortfeasor shifts ENTIRE loss to Paying Tortfeasor
  • Paying tortfeasor pays ENTIRE loss to Plaintiff
  • Paying tortfeasor can recover ENTIRE loss (be indemnified by) Non-paying Tortfeasor
    • Relieves Paying Tortfeasor
68
Q

What are examples of indemnification?

A

By agreement (contract)

Vicarious liability

  • Employer for Employee’s torts
  • Landowner for Independent Contractor’s torts

Strict product liability
- Supplier for Manufacturer’s defects

Degree of fault (Party (least at fault) for Party (most at fault))

  • Retailer (who did NOT discover defect) for Manufacturer’s defects
  • Secondary duty party for Primary duty party

Intentional vs Negligent

  • Non paying tortfeasor committed intentional tort
  • Paying tortfeasor committed negligent tort
69
Q

What is the rule for survival of tortious actions?

A

Brought by representative of the decedent’s estate ON BEHALF OF the decedent

  • For claims that the decedent would have had at the time of the decedent’s deathVictim can recover damages incurred between his injury + his death

Victim’s cause of action survives Victim’s own death in;

  • Personal injury cases
  • Property tort cases

Victim’s cause of action does NOT survive Victim’s own death in intangible personal interest cases;

  • Defamation
  • Invasion of right to privacy
  • Malicious prosecution
70
Q

Who may recover for Decedent’s wrongful death?

A

Spouse

Representative

NOT Creditor

71
Q

How much can be recovered from Decedent’s wrongful death?

A

1) Pecuniary injury

  • Loss of companionship/support
  • NOT Decedent’s pain/suffering (separate loss in personal injury suits)

2) To extent Decedent would have recovered if alive
* Reduced by Decedent/Beneficiary’s contributory negligence

72
Q

When does governmental tort immunity apply?

A

Federal Government -

  • Discretionary acts
  • Battery/Assault/False imprisonment
  • Traditional govenmental activities
  • Otherwise immunity waived

State Government + Municipalities (most states have waiver to some extent) -

  • Governmental functions (police, court system)
    • Immunity applies
  • Proprietary functions (often performed by private company
    • Immunity waived

Government officials -

  • Discretionary functions
    • Immunity applies
  • Ministerial functions
    • No immunity
73
Q

What is the difference between discretionary and ministerial acts?

A

Discretionary act
- Planning/Decision-making level

Ministerial act
- Operational level

74
Q

Is there charitable immunity?

A

No

75
Q

What is required for vicarious liability under ‘Respondeat Superior’?

A

1) Employer/Employee; Servant/Agent relationship
2) Acted within scope of employment

  • Detour (minor deviation from Employer’s business in terms of time/geographic area) (e.g. running personal errand) (NOT substantial deviation/’frolic’)
  • Employee’s intentional torts - Employers are generally NOT LIABLE for intentional torts of employees
    • Exception: When employee’s conduct is within the scope of employment (e.g. force is inherent in the employee’s work)
76
Q

How can Employer be liable for supervision or selection of Employee?

A

1) Direct Negligence
* Employer is liable for the employer’s own negligence (NOT vicarious liability)
2) Vicarious Liability
* Employee acted within scope of employment

77
Q

What is required for Principal’s vicarious liability for Independent Contractor?

A

Generally NOT liable for torts committed by independent contractors

Exception:

  • Retains a right of control over the way the employee does work
  • Non-delegable duty (public policy)
    • Inherently dangerous activities
    • Duties to the public (e.g. construction work by roadway
    • Shopkeepers - keep premises safe for the public
78
Q

What is required for Partner/Joint Venturer’s vicarious liability?

A

Act witin scope + course of partnership/joint venture (anything involving sharing expenses)

79
Q

How can Parent be liable for Child’s act?

A

(Generally NOT liable at common law)

Vicarious liability

  • Child’s intentional/willful tort (up to certain dollar amount)
  • Child acting as agent for Parent

Negligence

  • Consent towards Child’s act
  • Lack of due care despite knowledge of Child’s tendency to injure others on past occasions
80
Q

How may Tavernkeepers (intoxicating beverage sellers) be liable for Buyer’s/TP’s intoxication?

A

Vicarious liability
- Dramshop Act (NOT common law)

Negligent liability
- Foreseeable risk of serving minor/obviously intoxicated adult (NOT Dramshop Act)

81
Q

What is the purpose of indemnification?

A

Relief towards paying party

82
Q

What is required for products liability?

A

1) Product was DEFECTIVE

  • Manufacture
  • Design
  • Failure to Warn

2) Defect existed when product left D’s control
* Inferred from product’s movement through normal channels of distribution
2) Defect caused P’s injury when the product was used in a foreseeable way (D’s liability)

  • Negligence
  • Strict Liability
  • Breach of Warranty Claim
    • Express/Implied warranty
83
Q

What type of defects are there?

A

Manufacturing Defect -

  • Product DEVIATED from its intended DESIGN
  • Product does not conform to the manufacturers’ own specifications

Design Defect -

  • Consumer Expectation Test
    • Product is defective in design if it is less safe than te ORDINARY CONSUMER would expect
  • Risk-Utility Test
    • Product is defective in design if the risks outweigh its benefits; must show that there is a reasonable ALTERNATIVE design

Failure to Warn - of a foreseeable risk that is not OBVIOUS to an ordinary user

  • Learned Intermediary Rule (often applies to prescription drugs)
    • Manufacturers of prescription drugs must warn the prescribing PHYSICIANS
    • Exception: drugs marketed directly to consumers-
84
Q

What exceptions deny existence of defects?

A

Compliance with government safety standards

  • NOT conclusive evidence of non-defect but is ADMISSIBLE evidence
  • Exception: Fed Preemption - Congress has preempted regulation in a particular area

Scientifically unknowable risk

  • NOT foreseeable danger (at time of marketing)
85
Q

What is required for negligence liability?

A

Must prove:

1) Duty of care

  • D must be commercial supplier (manufacturer/wholesaler/retailer/NOT repair or service)
  • P must be foreseeable (user/consumer/bystander) (NO privity required)

2) Breach (D’s negligent conduct led to supplying defective product)

  • Manufacturing defect (Manufacturer): Res ipsa loquitor
  • Design defect (Manufacturer): D knew/should have known of defect (UNLESS NOT apparent until defect reached public)
  • Manufacturing/Design defect (Retailer/Wholesaler): Cursory inspection required only

3) Causation

  • If NO Intermediary => Manufacturer is liable (actual + proximate causation)
  • If Intermediary failed to discover defect but NOT beyond ordinary foreseeable negligence => Manufacturer is liable (actual causation) + Intermediary is liable (proximate causation)
  • If Intermediary failed to discover defect + beyond ordinary foreseeable negligence => Intermediary is liable (actual + proximate causation) (superseding cause)

4) Damages

  • Personal injury + Property
  • If claim is SOLELY for economic loss (requires repairs/not work as well as expected) => Must bring warranty claim
86
Q

What is required for strict tort liability?

A

1) Commercial supplier

  • Manufacturer (of that defective component)/Retailer/Wholesaler
  • Lessor
  • Seller of used products

2) Produce/Sell defective product

  • Dangerous beyond customer’s ordinary expectation
  • NOT service (BUT could be liable for negligence)

3) Causation (actual)

  • Defect existed when product left D’s control (NOT altered by substantial change)
  • Even if defect difficult to trace => P may rely on inference that failure ordinarily ‘would occur’ due to defect
  • Presumption that adequate warning would have been read and understood

4) Causation (proximate)

  • If NO Intermediary => Manufacturer is liable (actual + proximate causation)
  • If Intermediary failed to discover defect but NOT beyond ordinary foreseeable negligence => Manufacturer is liable (actual causation) + Intermediary is liable (proximate causation)
  • If Intermediary failed to discover defect + beyond ordinary foreseeable negligence => Intermediary is liable (actual + proximate causation) (superseding cause)

4) Damages

  • Personal injury or Property damage
  • NOT purely economic damages
87
Q

What is the difference between negligence and strict tort liability?

A

Negligence

  • Fault (failure to discover defect UNLESS no reasonable opportunity to inspect)
  • NO economic loss

Strict tort

  • NO fault (NO failure to discover defect, no reasonable opportunity to inspect NOT relevant)
  • NO economic loss
88
Q

What defenses can prevent negligence/strict tort liability/breach of warranty?

A

Contributory negligence

  • NOT P’s mere failure to discover/guard vs defect
  • NOT P’s reasonably foreseeable misuse
  • NOT intentional torts

Comparative negligence

Assumption of risk

89
Q

What are the implied warranties?

A

Implied Warranties

  • Merchantabiliy
    • Product is suitable for the ORDINARY purposes for which it is sold
  • Fitness for a particular Purpose
    • Seller knows the particular purpose for which the product is being sold, and the buyer relies on the seller’s skill or judgment
90
Q

What is required for breach of implied warranty (UCC)?

A

1) Product

  • Sale of goods
  • Leases

2) Plaintiffs

  • Horizontal privity required (Buyer’s family/household/guests)
  • NO vertical privity required (Buyer can sue Manufacturer)

3) Breach of implied warranty (NO fault required)

  • Product failed to live up to standards imposed by implied warranty
  • NOT merchantable ((1) Goods are NOT of average acceptable quality + (2) Goods are generally NOT fit for ordinary purpose)
  • NOT fitness for particular purpose ((1) S knew/should have known goods’ particular purpose + (2) S knew/should have known B’s reliance on Seller’s judgment or skill in selecting goods)

4) Causation (actual + proximate)
5) Damages

  • Personal + property
  • Economic (unlike strict tort/negligence)
91
Q

What is the difference between express and implied warranties?

A

Express warranty

  • Seller makes affirmation of fact/promise (warranty) to Buyer relating to goods; that warranty become part of ‘basis of the bargain’
  • NO horizontal/vertical privity required (BUT someone must have relied on Seller’s representation so that it became ‘basis of the bargain’)

Implied warranty

  • Seller implies warranties that goods are merchantable of fit for its particular purpose
  • Horizontal privity required (NOT vertical privity)
92
Q

What is required for breach of express warranty (UCC)?

A

1) Product

  • Sale of goods
  • Leases

2) Plaintiffs
* NO horizontal/vertical privity required (BUT original Buyer must have ‘relied’ on Seller’s representation so that it became ‘basis of bargain’ => Remote person can sue, even w/o knowledge of representation)
3) Breach of express warranty (NO fault required)
* Product failed to live up to standards imposed by express warranty
4) Causation (actual + proximate)
5) Damages

  • Personal + property
  • Economic (unlike strict tort/negligence)
93
Q

What defenses can prevent breach of warranty?

A

Contributory negligence

Assumption of risk

Failure to give notice of breach within reasonable time (UCC)

Disclaimer

  • Express warranties (disclaimer to be read consistently with warranties => disclaimer almost impossible)
  • Implied warranties (economic damages only)
94
Q

How can multiple suppliers (not identifiable) be found liable?

A

Negligence

  • Alternative causes approach (Summers v Tice)
  • Burden of proof => Each supplier to prove they are not liable

NOT strict tort

95
Q

How can the defendant prevent himself from being ultimately liable?

A

Claim indemnity from supplier above supply chain

96
Q

What is required for prima facie case for strict liability?

A

1) ‘Absolute’ duty imposed on D to make P’s person or property safe

  • Based on nature of D’s activity
  • NOT duty to exercise reasonable care (negligence)

2) Actual + Proximate causation
* Dangerous aspect of D’s activity => Created P’s injury
3) Damages

  • Personal/Property
  • NOT economic damages

4) Foreseeable Plaintiff

97
Q

What is required for liability due to abnormally dangerous activities?

A

1) Creates a foreseeable and highly SIGNIFICANT risk of harm
* Even if reasonable care exercised
2) SEVERITY of the harm resulting from the activity
3) Appropriateness of the PLACE/LOCATION for the activity
4) Does it have great value to the community

98
Q

What are examples of abnormally dangerous activities?

A

Blasting

Manufacturing explosives

Crop dusting

Fumigating

Nuclear plants

Mining

Toxic waste transportation

99
Q

What defenses can prevent strict liability?

A

Contributory negligence

  • P’s knowledge of danger + unreasonable conduct causing harm to P
  • NOT P’s failure to realize/guard vs defect

Assumption of risk

Comparative negligence

100
Q

What are wild animals?

A

Matter of common knowledge => Naturally;

  • Ferocious
  • Unpredictable
  • Dangerous
  • Mischievous
  • Not by custom devoted to the service of mankind where they are kept
101
Q

What is required for liability due to Defendant’s wild animals?

A

Owners are STRICTLY LIABLE ofor harm arising from animal’s dangerous propensities

102
Q

What is required for liability due to Defendant’s animals towards licensees/invitees/trespassers?

A

Licensees or Invitees

  • Stricty liable

Trespassers

  • Not strictly liableOwner failed to warn of animal

Exception: Vicious watchdogs that cause ‘serious’ bodily harm

103
Q

What is required for strict liability due to Defendant’s domestic animals?

A

Known to be dangerous

  • If owner KNOWS or has reason to know that the particular animal has DANGEROUS PROPENSITIES
104
Q

What is required for strict liability due to Defendant’s trespassing animals?

A

Trespassing Animals

  • Owner of any animal is STRICTLY LIABLE for reasonably foreseeable damage cause by his animal while trepassing on another’s land

Exceptions:

  • Household Pets - Unless owner knows or has reason to know that the pet is INTRUDING on another’s property in a harmful way
  • Animals on Public Roads - A NEGLIGENT STANDARD applies
105
Q
A

Texas Bar Exam: UBE MBE (1 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions