Torts Flashcards
1
Q
Negligence Essay - Blanket statement for any type of negligence essay!!!
A
- In a negligence action, a plaintiff must show:
- 1) Duty: that the defendant owed the plaintiff a duty to conform his conduct to a standard of care necessary to avoid unreasonable risk of harm to others,
- 2) Breach: that the defendant’s conduct fell below the applicable standard of care; AND
- 3) Causation: that the defendant’s conduct was both the cause in fact and the proximate cause of the Plaintiff’s injuries.
2
Q
Standard of Care/Duty: When claim is against a Child
A
- A child owes the duty of care of a child of similar age, intelligence and experience, acting under similar circumstances. There are a few exceptions:
- Adult Activity: If the child is engaged in an adult activity - i.e. one which is “normally undertaken only by adults, and for which adult qualifications are required” - then the child will be held to the same sandard of care as a reasonably prudent adult engaged in such activity
-
Tender Years: Some states recognize tender years doctrine in which a child less than seven years of age cannot be found negligent.
*
3
Q
Intentional Torts Elements
REMEMBER THIS AND THEN JUST MAKE UP THE TORT!
A
- Voluntary Act (or omission)
-
Intent
- Specific Intent: actor acts with the purpose of causing the consequence
- General: actor knows that the consequence is substantially certain to occur
- Note:GENERAL INTENT IS ENOUGH FOR ALL INTENTIONAL TORTS
-
Causation: satisfied if the Defendant was a substantial facor in bringing about the harm
- Actual and Proximate for Negligence
4
Q
Battery
A
- A battery occurs when the Defendant:
- Causes or is a substantial factor in bringing about
- Harmful or offensive contact
- to the Plaintiff’s person; and
- Has specific or general intent.
5
Q
Defense to Intentional Torts: Consent
A
- A defendant is not liable for an otherwise tortious act if the plaintiff consented to the 🜂’s act provided that
- the consent was valid (no fraud, capacity); and
- Defendant’s conduct remained within the scope of plaintiff’s consent
- Consent may express through words/conduct or be implied by law where the action is necessary to protect an important interest in person or property.
6
Q
Affirmative Duty to Act
A
- In general, there is no affirmative duty to act unless Defendant:
- Places the plaintiff in danger
- Has a special relationship with the Plaintiff
- Has a duty imposed by law; OR
- Begins to administer aid or attempt to rescue the plaintiff
- If rescuing, must exercise reasonable care and not leave the plaintiff in a worse off position
7
Q
Standard of Care/Duty: Reasonable Person Standard
A
- The standard of care owed by the Defendant to the plaintiff is that of a reasonably prudent person under the circumstances.
- Note
- Physcial Disabilities such as blindness and deafness will be taken into account (i.e. reasonably prudent blind person - would not drive)
- Intoxicated person held to same standard as sober ppl under intoxication was involuntary
- Community customs may be relevant in determining reasonableness, but are not dispositive.
8
Q
Standard of Care: Professionals, Physicians, and Psychotherapists
A
- In exercising their duty of care:
- Professionals are expected to exhibit the knowledge and skill of a member of the profession in good standing and in similar circumstances
- e.g. nurses, lawyers, accountants, engineers, architects.
- Physicians are held to a national standard and have a duty to disclose the risks of treatment to enable a patient to give informed consent. This duty is only breached if an undisclosed risk was so serious that a reasonable person in the patient’s position would not have consented upon learning of the risk.
- Psychotherapists have a duty to warn potential victims of a patient’s serious threats of harm if the patent has the apparent intent and ability to carry out such threats and potential victim is readily identifiable.
- Professionals are expected to exhibit the knowledge and skill of a member of the profession in good standing and in similar circumstances
9
Q
Standard of Care: Landowners/Possessors
A
- Depends on the legal status of the plaintiff
-
Unknown trespasser
- Definition: One who comes onto the land without permission or privilege who the presmises does not know about
- Rule: Undiscovered tresspassers are owed no duty of care
-
Known Trespasser
- Definition: A trespasser that the owner knows or should know of.
- Rule: The possessor/owner must warn or make safe any unreasonably concealed artificial condition that the landowner knows of
- Rule is different for Known Child Trespassers –> See attractive nuisance doctrine.
-
Licensee:
- Definition: A social guest who has permission to enter the land for her own purpose or benefit, rather than for the landowners (i.e. social guest)
-
Rule: Landowner must warn or make safe all hidden dangers (artificial or not, unreasonably dangerous or not) that the landowner knows of.
- No duty to inspect but must also reveal hidden dangers of which the landowner knows or has reason to know and which the entrant is unlikely to discover
-
Invitee:
- Definition: Those that enter to either confer an economic benefit (customer/employee of a store) or enter land that is open to the public at large (church, museum)
- Rule: The premises possessor must warn or make safe all dangers that the landowner knows or should know of. He has an affirmative duty to inspect.
10
Q
Standard of Care: Landowners –
Attractive Nuisance Doctrine
A
- KNOWN TRESSPASSER SUB RULE -
- A premises possessor is liable if:
- he knows or has reason to know that
- dangerous condition
- children are likely to tresspass
- because of their Age/youth, the children do not discover the condition or appreciate the danger
- Remedy eliminating the danger is slight compared with the risk involved and the benefit to the possessor AND
- the possessor fails to exercise reasonable care to protect the children
Note: This doctrine only applies fi the child is engaging in an activity appropriate for children (not an adult activity)
11
Q
Standard of Care/Duty & Breach
Negligence Per Se
A
- To be discussed whe you see a statute that sets the standard of care
- A plaintiff can sue under a theory of negligence per se when the plaintiff can show:
- The Defendant violated a statute without excuse
- The Plaintiff was in the class of people that the statute was trying to protect, and
- The plaintiff received the injury that the statute was trying to prevent
- If a plaintiff can establish the elements of NPS, he has offered conclusive proof of duty and breach
12
Q
Res Ipsa Loquitor
A
- The doctrine of RIL (“the thing speaks for itself”) allows the jury to infer negligence.
- In order to RIL to apply, the plaintiff must show the accident resulting the harm was:
- 1) of a kind which ordinarily does not occur in the absence of negligence,
- 2) caused by an agent or instrumentality within the within the defendant’s exclusive control and
- 3) other causes are sufficiently eliminated (including the plaintiff’s own negligence)
13
Q
Actual Causation
& Substantial Factor Test
A
- To provide actual cause, the plaintiff must show that her injury would not have occurred BUT FOR the defendant’s breach.
-
Substantial Factor Test: If traditional “but for” causation cannot be shown, most courts ae willing to implement a substantial factor test.
- Under this test, actual cause can be established if the defnedant’s breach was a substantial factor in bringing about the plaintiff’s harm (two fires merge)
14
Q
Proximate Causation
A
- To prove proximate cause, a plaintiff must show that her injury was a foreseeable result of the defendant’s conduct.
- An intervening cause is an outside force or action that contributes to the plaintiff’s harm after the defendant’s breach has occurred.
- If the intervening cause is unforeseeable, it is a superceding cause and liabiliy will be cut off from that point forward.
- Foreseeable acts = negligent acts (medical malpratice), injuries sustained when running from danger & injuries sustained to rescuer during rescue attempt
- Unforeseeable acts = Criminal acts, intentional torts, and nature-induced “acts of god”
- If the intervening cause is unforeseeable, it is a superceding cause and liabiliy will be cut off from that point forward.
15
Q
Causation: Eggshell Plaintiff Rule
A
- Under the Eggshell Skull Rule (“take your victim as you find him”), the defendant is liable for all harm suffered by the plaintff, even if the plaintiff suffered from an unforeseeable preexisting mental or physical condition that aggravates the harm.
