Torts

Question 1

In a negligence action, a plaintiff must show:

Answer 1

(1) That the D owed the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others,
(2) that the D’s conduct fell below the applicable standard of care, and
(3) that the D’s conduct was both the actual and proximate cause of P’s injuries.

Question 2

Child’s duty of care

Answer 2

child of similar age, intelligence and experience, acting under similar circumstances

• Exception: a child engaged in an adult activity will be held to same standard of care as a reasonably prudent adult engaged in the same activity

Question 3

Undiscovered Trespasser

Answer 3

Not owed a duty of care

Question 4

Discovered Trespasser

Answer 4

Duty to warn or make safe any unreasonably dangerous concealed artificial conditions that the owner knows of

Question 5

Attractive Nuisance

Answer 5

Premises possessor is liable if:

(1) knows or has reason to know children are likely to trespass,
(2) condition is one which he knows or should know involves unreasonable risk of death or serious bodily harm,
(3) children, because of their youth, do not discover the condition or realize the risk involved,
(4) burden of eliminating the risk is slight, and
(5) possessor fails to exercise reasonable care to protect the children

Question 6

Licensee

Answer 6

Social guest

• Owner must warn or make safe all concealed dangers that the owner knows of

Question 7

Invitee

Answer 7

Those that enter either to confer an economic benefit or enter land that is open to the public

• Owner has duty to warn or make safe all dangers that owner knows or should know of
• Also has duty to inspect!

Question 8

Negligence Per Se

Answer 8

P can sue under negligence per se when P can show three elements:

(1) D violated a statute without excuse,
(2) P was in the class of people the statute was designed to protect, and
(3) P received the injury that the statute was trying to prevent

• Still need to prove CAUSE AND HARM

Question 9

Res Ipsa Loquitur

Answer 9

Allows jury to infer negligence when:

(1) P’s harm would not have occurred had D used ordinary care,
(2) P is not responsible for the injury, and
(3) P’s injury was under D’s exclusive control

Question 10

Eggshell Skull Rule

Answer 10

D takes his victim as he finds him

Question 11

Negligent Infliction of Emotional Distress

Answer 11

D is negligent, P has not sustained actual injury, but P has physical manifestation of emotional distress

• Zone of danger of actual physical harm(relationship does not matter)
• Bystander (close relationship, perceived the accident)
• Special relationship (negligent handling of corpse, airline negligently notifying you parent died on plane)

Question 12

Contributory Negligence (CL)

Answer 12

If jury finds that P contributed to his injuries to any degree, P cannot recover

Question 13

Pure Comparative Negligence (Majority)

Answer 13

Amount of damages apportioned to P because of P’s negligence is subtracted from the total damage award

Question 14

Partial Comparative Negligence

Answer 14

If jury finds P was more than 50% at fault, she cannot recover

Question 15

Battery

Answer 15

An act with intent to cause a harmful or offensive contact or imminent apprehension of that contact and a harmful or offensive contact directly or indirectly results

Question 16

False Imprisonment

Answer 16

Intent to confine another within boundaries, confinement occurs, ad victim is conscious of confinement or is harmed by it

• Shopkeeper can detain suspected shoplifter for reasonable amount of time

Question 17

Employer/Employee Liability

Answer 17

Employer is vicariously liable for torts of their employees if tort was committed within scope of employment

• Not liable for intentional torts unless force was inherent to the job or employee was acting at employer’s wishes
• Liable for detour (minor deviation) but not for frolic (major deviation)

Question 18

Strict Products Liability Elements

Answer 18

(1) product was defective,
(2) defect existed when left D’s control, and
(3) defect caused P’s injury when product was used in reasonably foreseeable way

Question 19

Manufacturing Defect

Answer 19

Product does not conform to D’s own specifications

• All commercial sellers are liable for manufacturing defects

Question 20

Failure to Warn Defect

Answer 20

(i) Foreseeable risk of harm,
(ii) Not obvious to ordinary user of product, and
(iii) risks could have been reduced or avoided with reasonable instructions or warnings

Question 21

Design Defect

Answer 21

Consumer expectation test: dangerous beyond expectation of ordinary consumer

Risk-Utility Test: risks out weight benefits and reasonable alternative design that was available