Torts

Question 1

Tortious conduct makes you want to SING:

Answer 1

S: Strict liability

I: Intentional conduct

N: Negligent conduct or

G: Gross negligence or reckless conduct

Question 2

Negligence is unreasonable conduct caused by a D’s FIT

Answer 2

F: Failure to take reasonable precautions;

I: Inadvertance; or

T: Thoughtlessness

Question 3

Negligence

Answer 3

A failure to exercise reasonable care that a RPP would have exercised under similar circumstances, which failure proximately caused a physical injury to the plaintiff who was foreseeably threatened by the D’s unreasonable act or omission.

To successfully assert a negligence claim, the P must plead and ultimately prove by a preponderance of the evidence: DIP

D: the D owed a duty of reasonable care to the plaintiff and breached that duty

I: the plaintiff suffered physical injury to his person or property; and

P: the breach of duty by the D was the actual and proximate cause of the P’s injury; and

Question 4

Duty

Answer 4

The duty of care owed by one person to another is simply to behave with the degree of care that a RPP would exercise in similar circumstances. If the D’s conduct creates an unreasonable risk of injury to persons in the plaintiff’s position, the duty of care extends from the D to the P. No duty is imposed on a person to take precautions against events that cannot reasonably be foreseen.

Majority: ZONE OF DANGER: under Cardozo’s Zone of Danger theory, A duty of reasonable care is owed only to those who foreseeably could be injured by the D’s conduct or who are within the “zone of Danger”

Minority: Duty of care is owned to everyone.

Question 5

No Duty to Act Rule

Answer 5

An uninvolved bystander has no civil or criminal duty to aid person in peril, even though the rescue could have been performed w/o injury to rescuer, unless rescuer activity tortuously or innocently caused the person’s peril.

If person VOLUNTARILY assumes the duty, he must act as a reasonably prudent person. May discontinue aiding , provided injured did not rely on continued aid and is not placed in WORSE position than before aid was rendered.

Some jurisdictions extend Good Samaritan protection to ANYONE who voluntarily and without expectation of compensation, renders emergency medical assistance at the scene of accident.

Question 6

Unexpected and sudden altercation

Answer 6

DOES NOT render business or school liable to injured b/c most batteries are not foreseeable. To recover must establish owner was on notice and was negligent in not preventing it.

Question 7

Respondeat Superior

Answer 7

Torts of agents or employees may be vicariously imputed to the employer even if act was committed in disregard of the employer’s instructions.

P must show:

1. conduct was committed within the scope and in furtherance of the employer’s business
   a. closely connected with what the employee was employed to do
   b. substantially within the authorized time and space limits AND
   c. motivated at least in part by a purpose to serve the employer.

P who suffered intentional or reckless injury may sue employer for its failure to exercise reasonable care in HIRING, RETAINING OR CONTROLLING employee. note- this is separate from passive liability under respondent superior

DOES NOT APPLY TO INDEPENDENT CONTRACTORS

Question 8

Tortious Conduct of Independent Contractor

Answer 8

Employer not vicariously liable except where:

1. the employer took control of the contractor’s performance
2. the work delegated to the contractor endangered BIP

B: Business invitees (premises open to public– mall)

I: it was inherently dangerous; or

P: the PUBLIC WAY was endangered (work on outside of building)

3. The employer negligently hired or retained an unqualified or careless contractor; OR
4. the task involved a non-delegable duty

Question 9

Expert’s Duty Owed and Physically Impaired

Answer 9

Will be measured by the higher standard of care owed by a reasonably prudent expert.

The conduct of a person with a physical impairment is measured against the RPP with a similar impairment.

Question 10

Infants

Answer 10

Unless a child is engaged in an adult activity, his conduct is to be measured against that of a child of like age, intelligence, and experience. However, when a minor is engaged in a hazardous activity which is normally undertaken only by adults, and for which adult qualifications are required , he may be held to the reasonable prudent standard of an adult

Exception to the objective RPP test is made for infants.

Many jurisdictions: non sui juris (not their own master) and thus incapable of committing torts a matter of law until a certain age (4 for intentional, 7 for negligence)

Question 11

Infant and adult activities

Answer 11

If a child engages in an adult activity, then the child is held to the adult standard of a reasonable prudent person b/c such activities are inherently dangerous.

Question 12

Are parents vicariously liable for the torts of their children?

Answer 12

Generally no, unless: SICK

S: in an employment relationship where a child commits a tort while acting as a SERVANT or agent of parent;

I: Where P entrusts or knowingly leaves in child’s possession an INSTRUMENT which in light of child’s age, intelligence, disposition, and prior experience, creates an unreasonable risk of harm;

C: Where P knows of C’s tortious conduct and directs, approves or CONSENTS to it; OR

K: Where P has the ability to control C, but fails to exercise control, even though P knew of the C’s propensity that could endanger 3rd.

Question 13

Breach

Answer 13

A breach of duty occurs where the D fails to act or conform his conduct to the applicable standard of care. under the circumstances.

Question 14

5 TYPES OF CAUSATION

Answer 14

f-clips

F- FACTUAL

C: Concurrent

L: Legal

I: Independent Intervening (superseding)

P: Proximate

S: Successive

Question 15

Negligence Per Se

Answer 15

Where a statute provides a specific standard of care and that statute is designed to (i) protect persons in the p’s position and (ii) from the type of harm that materialized, that standard will replace the ordinary prudent person standard of reasonable care, and an individual’s failure to comply with the statute amounts to negligence per see

Compliance with the statutory duty does not foreclose a finding of negligence. That is, a person can still be found to be negligent under a traditional theory of negligence even if they acted in accordance with the duty prescribed by the statute.

Traditional theory: duty, breach, causation (both in fact and proximate) and damages

Question 16

Cause in fact

Answer 16

BUT-FOR: P must show that the injury would not have occurred but for the d’s conduct.

Question 17

Proximate cause

Answer 17

P must prove that D’s conduct was the cause in fact AND the plaintiff’s injury was a NATURAL and PROBABLE consequence of the D’s conduct. A D will not be liable for P’s injuries caused by remote, bizarre, extraordinary, or farfetched events.

Question 18

Intervening acts and superseding causes

Answer 18

An intervening event that was not foreseeable or that was to remote or bizarre will break the chain of causation, and thus d will not be held liable for those injuries. However, when p suffers injury because of a foreseeable intervening act, the p may hold d liable for any injuries suffered caused by that intervening act.

Question 19

Abnormally Dangerous–Strict liability

Answer 19

Some activities cannot be made reasonably safe even with eh exercise of utmost care. For such activities, the law imposes strict liability. Six factors are to be considered in determining an activity is abnormally dangerous:

1. Existence of a high degree of risk of some harm to the person, land or chattels
2. likelihood that the harm results from it will be great;

3 inability to eliminate risk by the exercise of reasonable care;

4. extent to which the activity is not a matter of common usage
5. inappropriateness of the activity city to the place where it is carried on; and
6. extent to which its value to the community is outweighed by its dangerous attributes

Question 20

Common Carriers

Answer 20

A common carrier must take reasonable affirmative steps to assist a passenger in peril, even where the passenger is injured due to the passenger’s own negligence. Carrier must maintain or at least warn of unsafe conditions, even if the carrier does not own or control the property.

Question 21

Recreational Use Statute

Answer 21

Limits Landowner’s liability on private land open to for recreational use to the public. There is no duty to warn or keep one’s land in a safe condition for gratuitous recreational users of the land.

Question 22

Public Way

Answer 22

Possessors owe a duty of reasonable care to avoid endangering others on the public way. liability is imposed if the condition of the land subjects neighbors or passerby’s to unreasonable risk of harm.

Question 23

res ipsa loquitur

Answer 23

The doctrine state that a D may be liable for P’s injuries absent direct evidence of causation if the harm is of a type that would normally not exist w/o D’s negligence and was attributable to the defendant. The plaintiff must show:

To establish the second element–> Exclusive control over the instrumentality that caused the accident.

AND not attributable to the P.

Question 24

Vicarious liability and Independent Contractors

Answer 24

Employer’s can be found liable for an “independent contractor” if the IC is treated as its employee acting within the scope of his employment. The test of whether a person is an employee is whether the person’s conduct in the performance of services is subject to the employer’s control. Several factors will be considered:

• level of skill required
• who supplies the instrumentalities used
• duration of the relationship
• whether work is part of the principal’s regular biz.

No single factor is determinative.

Question 25

When is an employee acting within the scope of his employment?

Answer 25

1. it is the kind of that the employee is employed to do
2. it occurs substantially within the authorized time and space limits
3. it is motivated at least in part, by a purpose to serve the employer.

A large deviation or a frolic is considered outside the scope of employment, and will remove the employer from vicarious liability.

The fact that an act was not authorized is not determinative.

Question 26

Specific situations in which a duty is owed

Answer 26

Rescuers: a rescuer is a foreseeable P as long as the rescue is not reckless; hence, D is liable if he negligently puts himself or a 3rd in peril and P is injured in attempting a rescue.

Firefighters and police officers assume the risk and thus cannot recover for injuries caused by the risks of a rescue.

Question 27

Automobile Guest Statute

Answer 27

In most jurisdictions today, the duty owed by a driver of an automobile to a rider is one of ordinary care. However, a minority of state have guest statutes that prohibit non-paying passengers from recovering for the ordinary negligence of her driver. Thus passenger must establish “gross negligence” or recklessness.

Question 28

Concurrent Causes

Answer 28

Actual Cause

The but for test applies where several acts combine to cause the injury, but none of the acts standing alone would be sufficient. But for any of the acts, the injury would not have occurred.

At CL, each defendant is jointly and severally liable for all the P’s injuries regardless of each D’s apportioned share of fault.

Question 29

8 Frequently used negligence principles

Answer 29

LARGE CD2

L: Last Clear Chance

A: Assumption of Risk

R: Res Ipsa Loquitur

G: Guest Statute

E: Emergency Doctrine

C: Comparative Negligence and Contributory Negligence

D2: Dram Ship and Danger Invites Rescue

Question 30

Liability for Conditions on Real Property

Answer 30

Landowners owe an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties to licensees (to WARN of or make non-obvious, dangerous conditions KNOWN to the landowner and to use ordinary CARE in active operations on the property) plus a duty to make reasonable inspections to discover conditions, and thereafter repair them.

Question 31

Trespasser

Answer 31

Generally, no duty of reasonable care owed to a T except to avoid intentionally or recklessly harming the trespasser.

However, if O becomes aware land is used by trespasser, he has a duty to warn of LATENT DANGERS or make conditions safe…and reasonable care.

Question 32

Invitee

Answer 32

The DIP duty owed to invitees requires the O to reasonably INSPECT and discover latent dangerous conditions and to repair or warn invitees of their existence. Lack of knowledge is not a defense

O is deemed to have constructive notice of hazardous condition on the property when:

(1) the condition is visible and apparent, and
(2) has existed for a sufficient length of time to afford the O a reasonable opportunity to discover and remedy.

Most jurisdictions: No duty to warn If danger is “open and obvious”. Apply comparative negligence

Liability extends only to those areas that are open by the invitation. Outside–> trespasser or a licensee.

Question 33

Licensee

Answer 33

Same as Trespasser

Question 34

Attractive Nusiance

Answer 34

Under this doctrine, the possessor is liable for forseeable physical harm to trespassing children when the is caused by an artificial condition on the land and:

1. PLACE danger exists is one that is known or reason to know that children are likely to trespass
2. know or should have known that artificial condition posed an unreasonable risk of death or serious injury
3. risk not recognized by children
4. financial burden to correct is not great (warning sign, security guard)
5. O breached duty by failing to use reasonable care to eliminate or reduce danger

Adult activity negates trespassing claim.

Question 35

Slip and Fall

Answer 35

Half of the states recognize that a P who slips and falls on the D’s property must prove latent, dangerous conditions existed and that the D:

1. created the dangerous condition
2. had actual notice of its existence OR

3 had constructive notice of it, b/c it had existed for a sufficient length of time prior to the accident such that there was time to discover and correct.

Question 36

Modern trend for trespass on property

Answer 36

Under the modern trend, about half the states have adopted a reasonable care standard under which the P owes a duty to anyone (9 status) or anyone other than a trespasser. The scope of the duty in these states is defined by the foreseeable unreasonable risks to persons entering the property.

Question 37

DIR

Answer 37

Danger invites rescue

An existing danger invites rescue. A tortfeasor who has placed herself or another in danger is liable for the injuries suffered by someone who comes to the rescue of the endangered person. a rescue is foreseeable and thus injuries arising therefrom are deemed to proximately cause by the original wrongdoer.

For DIR to apply, the rescuer must’ve had a reasonable belief that person or property was in peril. reasonableness to intervene is a question of fact.

Question 38

Dram Shop

Answer 38

At CL, bar was not liable to 3rd for injuries occurring off the premises caused by an intoxicated customer. Today, most states have some form of Dram Shop statute that imposes liability on those who sell liquor to visibly intoxicated patrons who then injure a 3rd. Some jurisdictions impose liability on social hosts, and a majority impose criminal and civil liability on persons providing liquor to minorss.

Question 39

Contributory Negligence

Answer 39

In Contributory negligence jurisdictions, if a plaintiff’s neg contributes to an accident, the P is barred from any recovery.

Question 40

Comparative Negligence

Answer 40

Pure comparative negligence jurisdiction, each D found liable for a certain proportion of fault for the injuries, tortfeasors may seek contribution or indemnity from one another.

(APPLY PURE on MEE) The majority of jurisdictions recognize comparative negligence. In some of those jurisdictions, “pure” comparative negligence is recognized where the P may recover no matter how great the P’s apportioned share of the fault. P’s conduct only reduces proportionately the amount of damages.

Outline doctrine denies P any recovery when she is injured while engaged in a serious criminal activity.

Question 41

Last Clear Chance

Answer 41

ONLY APPLY IF FACTS STATE THE JURISDICTION APPLIES CONTRIBUTORY.

In a Contributory Neg. jurisdiction, a negligent P may still recover by showing that the D had the last clear opportunity to avoid the accident.

Often raised by negligent Ps who are infants, intoxicated, or otherwise helpless to escape the danger they negligently brought upon themselves.

Requires:

1. D have knowledge of the P’s peril and sufficient time to avoid injury.

Question 42

Alternate liability theory

Answer 42

A problem of causation exists where two or more persons have been negligent, but uncertainty exists as to which one caused p’s injury. Under the ALT approach, P must prove that harm has been caused to him by one of them. The burden of proof then shifts to Ds, and each must show that his negligence is not the actual cause. If cannot determine, J&S liable.

Question 43

Indirect Cause

Answer 43

An indirect cause is one where the facts indicate that a force came into motion after the time of the D’s negligent act and combined with the negligent act to cause injury to P or when intervening causes are present. Whether an intervening force will cut off D’s liability for P is determined by foreseeability.

Question 44

Eggshell Skull

Answer 44

Although the D’s contact w/ P must be reasonably foreseeable, the exact resulting injuries to P need not be foreseeable. The D must take the P as he finds her.

Question 45

Superseding cause

Answer 45

an unforeseeable superseding force after the individual’s actions causes harm to the plaintiff and the result of the superseding force was not foreseeable, the individual’s liability is cut off by the superseding force, and the individual’s breach will not be deemed the proximate cause of the plaintiff’s injuries.

Question 46

Damages

Answer 46

P is to be compensated for all his damages. This includes fair and adequate compensation for economic damages and noneconomic damages such as pain and suffering.

Question 47

Pain and suffering

Answer 47

P must prove that he was conscious and cognitively aware of pain after accident.

Question 48

Lost earnings

Answer 48

P must prove the amount of actual past earnings with reasonable certainty.

Question 49

Property Damages

Answer 49

1. the difference in the property’s value
2. the cost to repair or replace damage

OR

Fair market value of destroyed

Question 50

Duty to Mitigate

Answer 50

P has a duty to take reasonable steps to mitigate damages–in property damage cases to preserve and safeguard property, and in personal injury to seek appropriate treatment to cure or prevent aggregation.

Question 51

Psychiatrist Duty

Answer 51

Duty to warn of credible threats of serious harm IDENTIFIED victims of a patient. Duty of confidentiality must give way to the greater duty to prevent clear and imminent harm to others.

Question 52

Landlord’s Duty

Answer 52

No special relationship.

Duty to take minimal steps to protect tenants and visitors from foreseeable criminal harm by third persons. P must plead and prove that the crime committed on the premises was reasonably foreseeable based on prior criminal activity in that building and the P must further show that the criminal actor gained access to building due to LL’s negligence.

Question 53

Joint and Several Liability

Answer 53

When multiple defendants are found to be liable to a plaintiff in a negligence claim, they are found to be jointly and severally liable unless there are other statutes that apply to the case. Any one of the Ds who is found to be J&S liable to a P with other Ds are found to be J&S liable for the fully amount of damages.

Question 54

Independent Forces

Answer 54

When IF combines with individual’s acts to accelerate or aggravate a Ps injuries, the individual will be liable if the IF and resulting harms were foreseeable.

Question 55

Assumption of Risk

Answer 55

Defense asserts that the P voluntarily assumed a known risk of foreseeable harm. It can be asserted as a defense to claims for negligence and strict liability. P must be able to accept or reject the risk.

-Expressly consent (orally or in writing)

-implied consent (voluntarily
encounters and is injured by a known COMMON AND APPARENT risk CAR)–> spectators of sporting events or recreational activities

Does not apply to intentional torts

Question 56

Emergency Doctrine

Answer 56

In an emergency, a person may act without reasonable skill, if the objective reasonable prudent person would believe that the good accomplished by her conduct, outweighed the foreseeable risk of harm.
Not applicable if she created risk or should have anticipated the emergency