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Advanced Legal Analysis > Torts > Flashcards

Torts Flashcards

1
Q

Tort

A

Civil wrong with a civil remedy

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2
Q

Duty of Care

A

Obligation to take risk reducing behavior

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3
Q

Standard of Care for Professionals

A

Professionals must possess and exercise knowledge and skill of an ordinary member of that profession in good standing.

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4
Q

Standard of Care for Children

A

Level of care that a child of like age, intelligence, education, and experience would exercise

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5
Q

Child is held to an adult standard of care when:

A

Engaging in an adult behavior

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6
Q

Undiscovered Trespasser Duty

A

None

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7
Q

Discovered Trespassers

A

People who entered your land without permission, but you know or should anticipate are on your land

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8
Q

Discovered Trespassers Duty

A

Liable for manmade death traps

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9
Q

Licensee

A

People on your land with your permission for their own purposes or business

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10
Q

Invitee

A

People on your land with your permission for a purpose related to a business holding itself out as open to the public

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11
Q

Liability to Licensees

A

Any concealed dangerous condition known to landowner

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12
Q

Liability to Invitees

A

Duty to inspect for dangerous conditions

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13
Q

Attractive Nuisance Doctrine Factors

A

Likelihood of children coming onto your property; Whether they would be too young to appreciate the danger; How difficult it would be to reduce the danger

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14
Q

The presence of an emergency changes the reasonable person standard only:

A

When the defendant did not create the emergency

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15
Q

“Firefighter Rule”

A

Due to assumption of risk, public policy will usually preclude a firefighter from recovering for injuries occurring on duty from risks inherent to his job

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16
Q

What are the three different types of emotional distress that can arise from the defendant’s negligence?

A
  1. Near Miss Case
  2. Close Family Member
  3. Misdiagnosis of an illness or mishandling of a loved ones remains
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17
Q

When the plaintiff may use a statute to make their tort case

A
  1. The plaintiff is in the class intended to be protected by the statute.
  2. The statute is designed to prevent the type of harm that the plaintiff suffered
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18
Q

No Affirmative Duty to Act Unless:

A
  1. There is a special relationship with the person in distress
  2. Prevent someone under your authority from hurting someone else
  3. When your conduct has caused someone to get hurt
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19
Q

Elements if Near Miss:

A
  1. Victim was in the zone of danger

2. Victim suffered some physical symptoms from the distress

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20
Q

Res Ipsa Loquitur factors

A
  1. Accident would not normally occur unless there was negligence
  2. The defendant is the responsible party
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21
Q

Elements to prove causation

A
  1. Actual causation

2. Proximate causation

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22
Q

Actual causation elements

A

Injury would not have occurred without the defendant’s breach

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23
Q

Proximate Causation elements

A

Injury was a foreseeable consequence of the breach

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24
Q

Actual causation test

A

But for the defendant’s negligence, would the plaintiff’s injuries have occurred?

25
Q

Merged causation

A

Two or more defendants independently set in motion forces that cause the plaintiff harm, but either could have caused harm by itself

26
Q

Substantial factor test

A

If the negligent conduct was a substantial factor in causing the harm, it is deemed an actual cause of the harm

27
Q

Direct Cause Case

A

Uninterrupted chain of events from the time of the defendant’s negligent conduct to the time of the plaintiff’s injury

28
Q

Indirect Cause Case

A

Other forces or events come into play after the defendant’s negligent conduct to combine with the conduct to cause the plaintiff’s injury

29
Q

Always Foreseeable Intervening Forces

A
  1. Subsequent medical malpractice
  2. Negligent rescue
  3. Reaction forces
  4. Subsequent accident or disease
30
Q

T/F Plaintiff can get punitive damages in a negligence action?

A

False

31
Q

Assumption of Risk

A

Plaintiff knew the risk and voluntarily assumed it

32
Q

Contributory Negligence

A

Plaintiff contributed to their negligence through their own conduct.

33
Q

Partial Comparative Negligence

A

Plaintiff can recover only if less at fault than the defendant. But recovery will be reduced by the percentage

34
Q

Pure Comparative Negligence

A

Plaintiff can recover regardless of percentage of fault, but recovery will be reduced by the percentage

35
Q

Types of torts

A
  1. Intentional
  2. Strict liability
  3. Negligence
  4. Defamation/Privacy Torts
  5. Nuisance
36
Q

A domestic animal is not considered wild unless:

A

It has a dangerous propensity

37
Q

Strict Liability Torts

A

P.roduct liability
A.bnormally dangerous activities
W.ild animal

38
Q

Tort Elements

A 
Duty
Breach
Actual Causation
Proximate Causation
Damages
Defenses
39
Q

For a plaintiff to prove a claim of negligence, the plaintiff must show:

A

That the defendant owed the plaintiff a duty of reasonable care, that the duty was breached, and that the breach was the actual and proximate cause of the harm plaintiff suffered for damages

40
Q

Standard of care for mentally ill

A

Reasonable person standard

41
Q

Standard of care when physically disabled

A

Reasonable for someone with the same disability

42
Q

Standard of care for a child

A

A child of like age, education, intelligence, and experience

43
Q

Adult activity doctrine

A

When a child engages in conduct reserved for adults, are evaluated at the adult reasonable person standard

44
Q

No duty to act, unless:

A 
F.amily Relationship
A.ssumption of the care
C.ontract
C.reation of peril
S.tatutory duties
S.pecial relationships
45
Q

Respondeat Superior

A

Employers are vicariously liable for the torts committed by their employees within the scope of the employment

46
Q

Respondeat Superior typically applies to the tort of:

A

Negligence

47
Q

Respondeat Superior applies to intentional torts when:

A
  • Employer has authorized the conduct
  • Nature of the employment is hostile
  • Employee believed it was necessary to use force to further the employee’s business
48
Q

Res Ipsa Loquitor

A
  1. The accident would not have happened unless someone was negligent
  2. The thing that caused the injuries was in the exclusive control of the defendant
  3. Plaintiff was not at fault
49
Q

Negligence Per Se

A
  1. There is a statute that defines conduct that usually comes with a criminal penalty
  2. The statute is designed to protect a member of the public from a specific type of harm
  3. The plaintiff is a member of the class of persons that the statute was designed to protect who suffers an injury the statute was designed to prevent
50
Q

Facts that are almost always unforeseeable

A

C.riminal acts of third parties
I.ntentional torts
A.cts of God

51
Q

Facts that are almost always foreseeable

A
  • Subsequent medical malpractice
  • Negligence of rescuers
  • Subsequent diseases and accidents
  • Ordinary negligence of third persons
52
Q

Superseding or supervening =

A

Unforeseeable

53
Q

Tort defenses

A
  1. Comparative fault

2. Assumption of the risk

54
Q

Types of Comparative Fault

A
  1. Pure comparative fault

2. Partial or modified fault

55
Q

Pure Comparative Fault

A

Plaintiff can recover no matter how negligent the plaintiff is, but recovery will be reduced by their own liability

56
Q

Partial or Modified Fault

A

Plaintiff’s negligence must be less than defendant’s, or Plaintiff’s negligence can be equal to the defendant’s

57
Q

Comparative Fault Default Rule

A

Pure Comparative Fault

58
Q

Assumption of the Risk

A

You know the risk but went ahead anyway

Advanced Legal Analysis (3 decks)

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