Torts Flashcards
Rule for negligence?
In any negligence action, a plaintiff must show that the defendant owed the plaintiff a duty, breached that duty, and caused the plaintiff harm that was actually and proximately caused by defendant’s breach.
First line for negligence defense
In negligence cases, a common defense is comparative negligence where the plaintiff’s damages are reduced by the percentage of plaintiff’s fault.
If given a statute and negligence, first rule is?
In negligence per se, an existing statute may establish a duty of care, in which the specific duty imposed by the statute will replace the general common law duty of care. A violation of the statue means proof of a duty and breach, and the plaintiff is only required to prove causation and damages.
Although compliance with the statute does not automatically clear the defendant of liability.
2nd rule set for when given a statute and negligence?
Under negligence per se, the plaintiff must show that the defendant violated a statute without excuse, the plaintiff was in the class of people the statute was meant to protect, and the plaintiff suffered the harm the statute was designed to prevent.
The statutory standard does not apply if compliance is more dangerous than non-compliance or compliance is impossible.
Rule for Actual Cause - cause in fact?
Actual cause establishes the causal connection between the alleged breach and the resulting injury. This is commonly referred to as the “but-for” test, because “but-for” the defendant’s action, the plaintiff would not have been harmed.
Rule for Proximate Cause (no intervening causes)?
Proximate cause is established that it is fair under the law to hold defendant responsible for plaintiff’s injuries.
Proximate cause is measure by foreseeability.
Rule for intervening causes
Intervening (or indirect) causes are contributing acts that occur after defendant’s conduct and combine with that conduct to cause plaintiff’s injuries.
Defendant is usually liable if the injury could have possibly resulted even without the intervening forces.
What is the rule for eggshell plaintiffs?
A defendant takes his plaintiff as he finds him. A plaintiff with an “eggshell skull” who suffers damages greatly in excess of those of a normal victim is entitled to recover fully for his injuries.
General rule for Damages in a negligence case
Damages are not presumed in most negligence cases. Plaintiff has a duty to take reasonable steps to mitigate damages.
Rule for Personal Injury damages?
Personal injury allows recovery of all economic and non-economic, past, present, and future damages.
Rule for Property damages?
Property damages allow recover for reasonable cost of repair, however, if irreparable, for the full market value at the time of the accident.
Rule for punitive damages in negligence cases?
Punitive damages are only recoverable if the defendant’s conduct was wanton and willful, reckless, or malicious.
What is the main rule for standard of care?
In most cases, a defendant is held to a standard of a reasonably prudent person in similar circumstances.
what is the rule for a RPP?
A reasonably prudent person is considered to be someone with the defendant’s physical characteristics, but with the knowledge and mental capacity of an ordinary person.
Rule for duty of care for child?
A child owes a duty of a child of similar age, intelligence, and experience acting under similar circumstances. If the child engages in adult activities, the child is held to the same standard as a reasonable prudent adult in such activity.
Rule for child under age of 7 (but cite for any minor child)?
Some states recognize the “tender years” doctrine, where a child under the age of seven cannot be found negligent.
Rule for standard of care for Professionals?
Professionals are expected to act with the care of an average member of the professions in good standing in similar communities, although specialist are held to a national standard.
Rule for innkeepers duty?
Innkeepers are held to an “utmost care” standard and are liable for even slight negligence to guests.
Landowners duty to trespassers?
Undiscovered trespassers are owed no duty of care. An undiscovered trespasser is one who come onto the land without permission or privilege and is unknown to the possessor.
Landowners owe discovered trespassers a duty to warn or make safe any unreasonable dangerous concealed artificial conditions known to the possessor.
Rule for Attractive Nuisance?
Under the attractive nuisance doctrine a land owner/possessor owes a duty to child trespassers to take reasonable care to eliminate dangers on her property or protect children from those dangers if she knows or should know that children are in the area, that there is a dangerous condition on her property, the condition is likely to cause injury if encountered, and the burden of eliminating then danger is slight compared to the magnitude of risk.
The child does not have to be attracted onto the land by the dangerous condition, nor is the attraction alone enough for liability.
Rule for Licensee?
A licensee is a social guest who has permission to enter the land but does not confer an economic benefit on the possessor.
The possessor owes a licensee a duty to reveal hidden dangers of which the possessor knows of has reason to know and which the licensee is unlikely to discover. The possessor has no duty to inspect for repair.
Rule for rescuers?
Although police and firefighters are considered licensees, they cannot recover for injuries suffered in the line of duty if the injury results from an inherent risk in the job.
Although the defendant is liable for injuries to normal third parties attempting rescue, even if unforeseeable.
Rule for an invitee?
An invitee is one who enters the land to confer an economic benefit or enters land that is open to the public at large.
The possessor has a duty to inspect and must warn or make safe all dangers that the possessor knows or should know of. (Remember: Invitee and Inspect)
Rule for pure Comparative Negligence?
Comparative negligence is a common defense in negligence cases. Comparative negligence (pure) allows the plaintiff to recover no matter how negligent he is, but the plaintiff’s damages will be reduced by his percentage of fault. The trier of fact apportions fault among the parties.
Rule for modified Comparative Negligence?
Some jurisdictions have “modified” comparative fault, which bars plaintiff from recovery if he is 50% or more at fault.
Rule for Contributory Negligence?
Under contributory negligence, if the trier of fact finds the plaintiff’s negligence contributed to his injuries to any degree, the plaintiff cannot recover. Most states have abandoned this doctrine.
List all Intentional Torts?
ABC FITT. Assault, Battery, Conversion, False Imprisonment, Intentional Infliction of Emotional Distress, Trespass to Land, and Trespass to Chattels.
Rule for battery?
Battery is an act with intent to cause a harmful or offensive contact by direct or indirect means.
