Torts Flashcards
Beginning of a negligence essay
In any negligence action, a plaintiff must show that the defendant owed the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others, that the defendant’s conduct fell below the applicable standard of care, and that the defendant’s conduct was both the cause in fact and the proximate cause of the plaintiff’s injuries.
Child’s duty of care:
A child owes the duty of care of a hypothetical child of similar age, intelligence, and experience, acting under similar circumstances.
Exception: if the child is engaged in adult activity then the child will be held to the same standard of care as a reasonably prudent adult engaged in such activity.
Some states recognize the tender years doctrine in which a child of less than seven years old cannot be found negligent.
Duty to an undiscovered trespasser
(One who comes onto the land without permission or privilege who the premises owner does not know about)
Not owed any duty of care.
Duty to a discovered trespasser
(Trespasser that the premises possessor knows or should know of).
Possessor must warn or make safe any unreasonably dangerous concealed artificial conditions that the landowner knows of
Attractive nuisance doctrine
The premises possessor is liable if (1) he knows or has reason to know that children are likely to trespass, (2) the condition is one which he knows or should know involves an unreasonable risk of death or serious bodily harm, (3) the children because of their youth do not discover the condition or realize the risk involved, (4) the burden of eliminating the danger is slight compared with the risk involved and the benefit to the possessor, and (5) the possessor fails to exercise reasonable care to protect the children.
This doctrine applies only if the child is engaging in an activity appropriate for children (not adult activity).
Duty to a licensee
(Social guest who has permission to enter the land but does not confer an economic benefit on the possessor of land)
Landowner must warn or make safe all concealed dangers (artificial or not, unreasonably dangerous or not) that the landowner knows of.
Duty to an invitee
(Those that enter either to confer an economic benefit or enter land that is open to the public at large)
The premises possessor must warn or make safe all dangers that the landowner knows or should know of. The premises possessor has a duty to inspect!
Negligence per se
A plaintiff can sue under this theory when the plaintiff can show three elements: (1) the defendant violated a statute without excuse; (2) the plaintiff was in the class of persons that the statute was trying to protect; and (3) the plaintiff received the injury hat the statute was trying to prevent.
If a plaintiff establishes the above elements, he has offered conclusive proof of duty and breach (must still prove causation and harm).
Res ipsa loquitor
Allows the jury to infer negligence when the event is of a kind which ordinarily does not occur in the absence of negligence, other responsible causes are sufficiently eliminated by the evidence, and the indicated negligence is within the scope of the defendant’s duty tot he plaintiff.
Eggshell-skull rule
A defendant takes his victim as he finds him. The plaintiff with an “eggshell skull” who suffers damages greatly in excess of those that a normal victim would suffer is entitled to recover fully for his injuries.
Negligent infliction of emotional distress
May be applicable when the defendant is negligent and the plaintiff has not sustained any actual physical trauma to his body.
Generally must be a physical manifestation of the emotional distress.
Some jurisdictions only allow recovery if the plaintiff was within the zone of danger. Others allow it when the plaintiff was closely related to the victim, was located near the scene of the accident, and suffered shock resulting from the sensory and contemporaneous observance of the accident.
In almost all jurisdictions, mere receipt of news relating to an accident does not suffice.
Comparative negligence
Majority law.
The trier of fact (judge/jury) apportions fault among the parties. The amount of damages apportioned to the plaintiff because of the plaintiff’s negligence is subtracted from the total damages awarded by the jury. This is known as pure comparative negligence.
Contributory negligence—common law
Common law doctrine that states if the jury finds that the plaintiff’s negligence contributed to his injuries to any degree, the plaintiff cannot recover.
Battery
An act with intent to cause a harmful or offensive contact or imminent apprehension of the contact and a harmful or offensive contact directly or indirectly results.
False imprisonment
An act with intent to confine or restrain a person to a bounded area, actual confinement occurs, and the plaintiff knows of the confinement or is hurt by the confinement.
Consent
Defense to an intentional tort—can be express or implied.