Torts Flashcards
Tort
Civil wrong with a civil remedy
Duty of Care
Obligation to take risk reducing behavior
Standard of Care for Professionals
Professionals must possess and exercise knowledge and skill of an ordinary member of that profession in good standing.
Standard of Care for Children
Level of care that a child of like age, intelligence, education, and experience would exercise
Child is held to an adult standard of care when:
Engaging in an adult behavior
Undiscovered Trespasser Duty
None
Discovered Trespassers
People who entered your land without permission, but you know or should anticipate are on your land
Discovered Trespassers Duty
Liable for manmade death traps
Licensee
People on your land with your permission for their own purposes or business
Invitee
People on your land with your permission for a purpose related to a business holding itself out as open to the public
Liability to Licensees
Any concealed dangerous condition known to landowner
Liability to Invitees
Duty to inspect for dangerous conditions
Attractive Nuisance Doctrine Factors
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
The presence of an emergency changes the reasonable person standard only:
When the defendant did not create the emergency
“Firefighter Rule”
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
What are the three different types of emotional distress that can arise from the defendant’s negligence?
- Near Miss Case
- Close Family Member
- Misdiagnosis of an illness or mishandling of a loved ones remains
When the plaintiff may use a statute to make their tort case
- The plaintiff is in the class intended to be protected by the statute.
- The statute is designed to prevent the type of harm that the plaintiff suffered
No Affirmative Duty to Act Unless:
- There is a special relationship with the person in distress
- Prevent someone under your authority from hurting someone else
- When your conduct has caused someone to get hurt
Elements if Near Miss:
- Victim was in the zone of danger
2. Victim suffered some physical symptoms from the distress
Res Ipsa Loquitur factors
- Accident would not normally occur unless there was negligence
- The defendant is the responsible party
Elements to prove causation
- Actual causation
2. Proximate causation
Actual causation elements
Injury would not have occurred without the defendant’s breach
Proximate Causation elements
Injury was a foreseeable consequence of the breach
Actual causation test
But for the defendant’s negligence, would the plaintiff’s injuries have occurred?
Merged causation
Two or more defendants independently set in motion forces that cause the plaintiff harm, but either could have caused harm by itself
Substantial factor test
If the negligent conduct was a substantial factor in causing the harm, it is deemed an actual cause of the harm
Direct Cause Case
Uninterrupted chain of events from the time of the defendant’s negligent conduct to the time of the plaintiff’s injury
Indirect Cause Case
Other forces or events come into play after the defendant’s negligent conduct to combine with the conduct to cause the plaintiff’s injury
Always Foreseeable Intervening Forces
- Subsequent medical malpractice
- Negligent rescue
- Reaction forces
- Subsequent accident or disease
T/F Plaintiff can get punitive damages in a negligence action?
False
Assumption of Risk
Plaintiff knew the risk and voluntarily assumed it
Contributory Negligence
Plaintiff contributed to their negligence through their own conduct.
Partial Comparative Negligence
Plaintiff can recover only if less at fault than the defendant. But recovery will be reduced by the percentage
Pure Comparative Negligence
Plaintiff can recover regardless of percentage of fault, but recovery will be reduced by the percentage
Types of torts
- Intentional
- Strict liability
- Negligence
- Defamation/Privacy Torts
- Nuisance
A domestic animal is not considered wild unless:
It has a dangerous propensity
Strict Liability Torts
P.roduct liability
A.bnormally dangerous activities
W.ild animal
Tort Elements
Duty Breach Actual Causation Proximate Causation Damages Defenses
For a plaintiff to prove a claim of negligence, the plaintiff must show:
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
Standard of care for mentally ill
Reasonable person standard
Standard of care when physically disabled
Reasonable for someone with the same disability
Standard of care for a child
A child of like age, education, intelligence, and experience
Adult activity doctrine
When a child engages in conduct reserved for adults, are evaluated at the adult reasonable person standard
No duty to act, unless:
F.amily Relationship A.ssumption of the care C.ontract C.reation of peril S.tatutory duties S.pecial relationships
Respondeat Superior
Employers are vicariously liable for the torts committed by their employees within the scope of the employment
Respondeat Superior typically applies to the tort of:
Negligence
Respondeat Superior applies to intentional torts when:
- 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
Res Ipsa Loquitor
- The accident would not have happened unless someone was negligent
- The thing that caused the injuries was in the exclusive control of the defendant
- Plaintiff was not at fault
Negligence Per Se
- There is a statute that defines conduct that usually comes with a criminal penalty
- The statute is designed to protect a member of the public from a specific type of harm
- 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
Facts that are almost always unforeseeable
C.riminal acts of third parties
I.ntentional torts
A.cts of God
Facts that are almost always foreseeable
- Subsequent medical malpractice
- Negligence of rescuers
- Subsequent diseases and accidents
- Ordinary negligence of third persons
Superseding or supervening =
Unforeseeable
Tort defenses
- Comparative fault
2. Assumption of the risk
Types of Comparative Fault
- Pure comparative fault
2. Partial or modified fault
Pure Comparative Fault
Plaintiff can recover no matter how negligent the plaintiff is, but recovery will be reduced by their own liability
Partial or Modified Fault
Plaintiff’s negligence must be less than defendant’s, or Plaintiff’s negligence can be equal to the defendant’s
Comparative Fault Default Rule
Pure Comparative Fault
Assumption of the Risk
You know the risk but went ahead anyway
