TORTS Flashcards
What is the duty of care?
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
Is Defendant liable for injuries to unforeseeable second plaintiff as well as first forseeable plaintiff?
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)
What is required for Defendant to be liable for injuries to rescuers?
1) D negligently placed P/TP in peril
2) P was injured in attempting a rescue
- NOT reckless rescue
=> P is foreseeable plaintiff
Does Defendant owe duty to police officers/firefighters?
Unlikely (Firefighters’ rule)
- Public policy
- Assumption of risk
What is required for Defendant to be liable for wrongful birth?
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)
What is required for Defendant to be liable for economic loss to third party?
1) Intended TP to receive economic benefit
- Reasonably foreseeable
2) From legal/business transaction
- Will beneficiary
What is the applicable basic standard of care?
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
What is the standard of care required for professionals to exercise?
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)
When are doctors liable for failure to disclose risks of treatment?
1) Serious risk
2) If disclosure was made => Reasonable person would have withheld consent to treatment
What is the standard of care required for children to exercise?
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
What is the standard of care required for common carriers to exercise?
- 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.
What is the standard of care for innkeepers?
- Ordinary negligence (modern trend)
What is the standard of care required for automobile drivers to exercise?
Guest and Friends in Car
- Reasonable care (most states)
- Recklessness (avoid wilful and wanton misconduct) (few states - Guest statutes)
What is required for bailor/bailee to exercise particular standard of care?
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)
What is the standard of care required for Defendant to exercise in emergencies?
D created emergency
- Act as reasonable person would
- Emergency NOT considered
D did NOT create emergency
- Act as reasonable person would in emergency
(Negligence Per Se) What is the standard of care required for statutory standard of care to replace common law standard of care?
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)
When may compliance with statute excuse violation?
- Compliance creates more danger than violation
- Compliance is beyond D’s control
When does an owner/occupier of land owe duty to those off his premises?
NOT for natural conditions
- Exception: Trees in urban areas
Artificial conditions
- Prevent unreasonably risk of harm
-Exercise reasonable care conducting activites on land
When does an owner/occupier of land owe duty to those on his premises?
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
When does a lessor of land owe duty to those renting his premises?
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
When does a seller/vendor of land owe duty to those purchasing his premises?
1) Disclose existing defects
2) Seller knew/should know of defect
3) Seller knows Buyer will NOT likely discover defect by reasonable inspection
What is required for negligent infliction of emotional distress?
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)
What is required for Defendant to have affirmative duty to act?
(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
What is the difference between negligent and intentional infliction of emotional distress?
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