TORTS

Question 1

How can negligence be proved?

Answer 1

In any negligence claim, a plaintiff must show that the defendant owed the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonably risk of harm to others, that the defendant breached that duty, and that defendant’s conduct was both the actual and proximate cause of the plaintiff injuries.

Question 2

What is the standard of care for children?

Answer 2

A child owes a duty of care of a hypothetical child of similar age, intelligence, and experience acting under similar circumstances.

Question 3

What happens when a child engages in adult activities?

Answer 3

if a child engages in an adult’s activity (e.g driving a car) that child will be held to the same standard of care of a reasonable prudent adult engaged in such activities.

Question 4

What duty is owed to an undiscovered Trespasser?

Answer 4

An undiscovered trespasser is one that comes to the land without permission or privilege that the premises possessor does not know about. NO DUTY IS OWED TO UNDISCOVERED TRESPASSERS.

Question 5

What duty is owed to discovered trespassers?

Answer 5

A discovered trespasser is one that the premises possessor knows or should know of. The possessor must warn or make safe any unreasonably dangerous concealed artificial condition that the possessor knows of.

Question 6

What are the elements of an attractive nuisance?

Answer 6

The following elements must be shown in order to establish an attractive nuisance:

1) There is a dangerous condition present on the land of which the owner is or should be aware of;
2) The owner knows or should know that children frequent the vicinity of this dangerous condition;
3) The condition is likely to cause injury;
4) The expense of fixing the situation is slight compared with the magnitude of the risk.

Question 7

What is a Licensee?

Answer 7

A licensee is a social guest who has permission to enter the land but does not confer an economic benefit on the possessor of the land. The landowner must warn or make safe all concealed dangers the land owner knows of.

Question 8

What is an Invitee?

Answer 8

Those that enter either to confer an economic benefit or enter the land that is open to the public at large. The premises possessor must warm or make safe all dangers that the landowner knows or should know of. The premises possessor has a duty to inspect!

Question 9

What is negligence per se?

Answer 9

A plaintiff may sue under a theory of negligence per se when the plaintiff can show three elements: (1) the defendant violated a statute without excuse;(2)the plaintiff was in the class of people that the statute was trying to protect; (3)the plaintiff received the injury that the statute was trying to prevent.

If a plaintiff can establish the above elements, he has offered conclusive proof of duty and breach.

Question 10

What is the “egg-shell” rule?

Answer 10

The defendant takes the plaintiff as he finds him. The defendant is liable for the full extent of the plaintiff’s injuries.

Question 11

Negligent infliction of emotional distress

Answer 11

The elements are:

1) the defendant is negligent.
2) the plaintiff suffered physical symptoms from nits emotional distress; and
3) the plaintiff is either in the zone of danger or the plaintiff witnesses a negligent injury to a person closely related to the plaintiff.

Question 12

Res Ipsa Loquitur

Answer 12

Res ipsa liquitur allows the jury to infer negligence when the event is of a kind that ordinarily does not occur absent negligence. Other responsible causes have been eliminated by evidence and the negligence is within the scope of the defendant’s duty to the plaintiff.

Question 13

Comparative negligence

Answer 13

In a comparative negligence jurisdiction, the trier of facts apportions fault among the parties.

Pure comparative negligence: the plaintiff can recover no matter how negligent he is. his damages simply are reduced by the percentage of his fault.

Partial (modified) comparative negligence: if the plaintiff was more at fault than the defendant the plaintiff can not recover.

Question 14

Contributory negligence

Answer 14

The plaintiff can not recover if he was even a little negligent unless the defendant has the last clear chance to avoid the injury.

Question 15

Define Battery

Answer 15

Battery is the intentional harmful or offensive contact to the plaintiff person by the defendant.

elements; 1- harmful or offensive contact, 2- to the plaintiff person, 3- intent, 4- causation

Question 16

False imprisonment

Answer 16

Intentional act to confine or restrain a person to a bounded area, actual confinement occurs and the plaintiff knows or is hurt by the confinement.

Question 17

Consent

Answer 17

Consent is a defense to all intentional torts. consent can be express or implied.

Question 18

Define Vicarius Liability

Answer 18

Employers are vicariously liable for the torts of their employees if the torts are committed within the scope of employment. Employers are not liable for their employee intentional torts unless the torts were committed for the purpose of serving the employer or if they were forseeable.

Question 19

Explain the direct liability of employers

Answer 19

Employers are directly liable for their own negligence. for example, negligent supervision, hiring, and retention.

Question 20

Indemnification

Answer 20

indemnification allows a passive tortfeasor who was forced to pay damages to the plaintiff to recover a complete reimbursement from an active tortfeasor

Question 21

Strict - Product’s liability

Answer 21

To establish a prima facie case in products liability based on strict liability in tort, the following elements must be proved: (i) the defendant is a commercial supplier, (ii) the defendant produced or sold a product that was defective when it left the defendant’s control, (iii) the defective product was the actual and proximate cause of the plaintiff’s injury, and (iv) the plaintiff suffered damages to person or property.

Question 22

Abnormally dangerous activity

Answer 22

for an activity to be abnormally dangerous: (1) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (2) the activity must not be a matter of common usage in the community.

Question 23

Proximate cause

Answer 23

The general rule for proximate cause is that the defendant is liable for all harmful results that are normal incidents of and within the increased risk caused by these acts.
A rescuer is a foreseeable plaintiff.

Question 24

Is there a duty to rescue?

Answer 24

There is no duty to rescue. absent a special relationship between the parties. If the person comes to the aid of the other the rescuer must exercise care in providing assistance and must not leave the person in a worse position than he found her.

Question 25

Is there a Duty to prevent third persons from injuring another?

Answer 25

Generally, there is no duty to prevent a third person from hurting another unless the defendant had a special relationship with the third person that gave the defendant the actual ability and authority to act and the defendant knew or should have known that the third person was likely to injure the other person.