Torts Flashcards
Premises Liability
- Invitee
- Trespasser
Open & Obvious Doctrine
Attractive Nuisance
An invitee comes onto the premises to confer an economic benefit. Invitees are owed a duty to warn or make safe all dangers that the premises possessor knew of or should have known of.
Undiscovered trespassers are owed no duty of care. Discovered trespassers are owed duty to warn of all artificial, unreasonably dangerous, concealed dangers known to premises possessor.
There is no duty to warn of open and obvious dangers ( would an avg. person of ordinary intelligence discover the danger and the risk it presented on casual inspection?) , unless there is a special aspect of the condition that creates an unreasonable risk of severe harm. If there is a special aspect of the condition, the premises-holder must take reasonable steps to protect the invitee. This impliedly requires that the premises-holder make reasonable inspection of the property***
Attractive Nuisance - known child trespassers
Landowners owe a heightened duty of care to known child trespassers. Under a theory of attractive nuisance, a premises possessor is liable if plaintiff can show that defendant knew or should know children frequently came onto the property, there is a dangerous condition on the property that defendant knows or should know of ( usually an artificial condition), the child cannot appreciate the risk because of their youth, the risk to the child is greater than the burden to the defendant to make the premises safe and the utility of maintaining the condition , and the defendant fails to exercise reasonable care to eliminate the danger or protect the child.
Gov. Immunity [FEB 2021]
Gov agency immune from tort liability if gov agency is engaged in exercise or discharge of gov. function. Agents also immune if injury occurred in course of employment and 1 ) agent is acting or reasonably believes he is acting within scope of authority 2) gov. agency is engaged in the exercise of a gov. function and 3) agent’s conduct does not amount to gross neg.
For judicial, executive, legislators:
• Pursuant to the law the highest elective executive at all levels of government are immune from all tort liability for injuries to persons as long as he was acting within the scope of his executive authority. There is no bad motive or intention exception to absolute immunity.
Negligence Per Se (unlikely to be tested)
Establishing negligence per se is evidence of negligence:
1) D violated a statute w/o excuse
2) P was in the class of people that statute was trying to protect
3) P was injured in a way that statute was trying to prevent
Assault & Battery
Assault
To establish a prima facie case for assault, plaintiff must show that defendant acted with the intent to cause harmful or offensive contact ( or imminent apprehension of such contact) and that imminent apprehension of such contact occurs.
Battery:
The law states that to establish a prima facie case for battery, plaintiff needs to show that the defendant acted with the intent to cause harmful or offensive contact or the imminent apprehension of such contact, and such contact occurs. To show intent, plaintiff must show that defendant knew such injury would occur or was substantially certain to occur.
Malicious Prosecution
- prior proceedings were terminated in favour of P
- absence of PC for those proceedings
- malice was present
- special injury to P ( P must allege interference with P’s person or property ie. arrest)
Good Samaritan Law
Immunizes healthcare professionals who in good faith render emergency care w/o compensation at the scene of an emergency, if there was no pre-existing physician-patient relationship, and the physician/nurse’s acts or omissions did not amount to gross negligence or wilful or wanton misconduct.
NIED*
The law states that to establish a prima facie case for negligent infliction of emotional distress, defendant must be negligent and Plaintiff must show either that there was serious injury threatened or inflicted on a person of a nature to cause severe mental disturbance to P; close relationship between person injured and plaintiff; P was a bystander who witnessed the act or suffered shock fairly contemporaneously with the injury, and this caused emotional distress that resulted in physical symptoms to plaintiff
False Imprisonment + Merchant’s Privilege
- .D acts w/ intent to confine or restrain P to a bounded area ( no reasonable means to escape)
- Actual confinement occurs
- P knows of confinement or is hurt by it.
Merchant has a privilege to detain a shoplifter if merchant has a reasonable belief as to theft and detains shopper in a reasonable manner for a reasonable time.
Defamation
Slander
Private figure - private concern:
To establish a prima facie case for libel/slander, the law states that plaintiff must show that defendant made a defamatory statement to plaintiff, there was unprivileged publication of that statement, there was fault on the part of the defendant atleast in the form of negligence, and there are damages. In order to recover presumed damages, the statement must fall into a slander per se category. A statement made that accuses the plaintiff of engaging in unchastity, or a statement made accusing plaintiff of committing a serious crime are slander per se categories. If it is not a slander per se category, P must prove actual damages.
P always has to prove causation. If P can prove malice she can recover both economic and noneconomic damages.
In private figure-public concern causes, P also has to prove falsity. In public figure cases, fault level required is malice.
Defense to Slander (Consent, truth, qualified privilege, absolute Privilege)
The absolute privilege applies to statements made between spouses and statement made during executive, legislative and judicial proceedings, including communications made by a public official in furtherance of an official duty during proceedings of subordinate legislative and quasi-legislative bodies such as a city council. The law states that statements made by city council members in the course of their duties, regarding matters of public concern are protected by absolute privilege. Communications that are absolutely privileged are not actionable, even when spoken with malice.
Qualified privilege exists when candor is encouraged. speakers must have reasonable belief that statement is accurate and only discuss matters relevant to situation ( ie. former employer statement, statement made to investigating police officer
Direct liability - Negligent Supervision
Principal/employer can be liable for their own negligence for failure to supervise or for negligent hiring, firing or entrustment.
Parents are not vicariously liable for the acts of children however, may be directly liable for their own negligence ie. negligent parental supervision. To show this P must produce evidence that parent failed to exercise the control necessary to prevent their children from intentionally harming others, if they know or have reason to know of the child’s tortious propensities.
Public & Private Nuisance
Public Nuisance: act unreasonably interferes with health, safety, morals of community. P must suffer unique damages in order to sue
Private nuisance: A private nuisance comprises both nuisance-in-fact (by reason of the circumstances and surroundings) and nuisance per se ( at all times, in any circumstance regardless of location/surroundings) and is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.
Subject to liability for private nuisance if:
(a) the other has property rights and privileges in the use or enjoyment interfered with, (b) the invasion results in significant harm, (c) the actor’s conduct is the legal cause of the invasion, and (d) the invasion is either (i) intentional and unreasonable, or (ii) unintentional and otherwise actionable under the rules governing liability for negligent, reckless, or ultrahazardous conduct.
Negligence
Duty
Duty owed in sporting context
Breach
Causation
Harm
- Eggshell Skull Rule
Duty - owed to all foreseeable plaintiffs & duty to act affirmatively if there is a special relationship/contract/by statute/D commits tort ( but don’t have to put own life in danger) and reliance
- standard of care is that of an ordinary, prudent person. Take into account d’s superior knowledge, age of child ( child under 7 can’t be negligent) & physical characteristics
Duty owed in sporting context: duty of co-participants in sports or recreational activity - standard is recklessness or intentional misconduct **
Breach - P failed to comply with duty of care
- also established by res ipsa
Causation (actual & proximate)
Harm
- Eggshell Skull Rule: take P as you find them, P recovers for all damages, foreseeability of extent of harm is not required.
