Torts Flashcards
Standards of Care
a duty of care is owed to foreseeable plaintiffs. The class of people who were foreseeably endangered by the defendant’s negligent conduct. All persons owe a duty to behave as a reasonably prudent person. It is an objective standard and is measured against what the average person would do.
Children
Children are held to the standard of a child of like age, intelligence, and experience. However, children engaged in adult activity are held to an adult standard.
Professionals:
A professional is required to possess the knowledge and skill of an average person in the profession or occupation in good standing.
• Duty to disclose Risks in treatment
a doctor has a duty to disclose the risks of treatment to enable a patient to give informed consent. A doctor breaches this duty if the undisclosed risk was serious enough that a reasonable person would have withheld consent
Duty to Undiscovered Trespasser:
No Duty
Duty to discovered/anticipated Trespassers
Duty to warn of or make safe known conditions if nonobvious and dangerous. Must use reasonable care.
Licensees:
A licensee is one who enters onto the land with the possessors permission for their own purposes or business. Land owners have a duty to warn of or make safe known or concealed dangerous artificial and natural conditions.
Invitees
Invitees enter onto the land in response to an invitation by the possessor of the land for business purposes. The landowner owes a duty to make reasonable inspections to discover and make safe dangerous nonobvious artificial and natural conditions.
Trespassing children/ Atttractive nuisance
Most courts impose a duty of ordinary care to avoid a reasonably forseeable risk to children caused by dangerous artificial conditions on their property. This is called attractive nuisance doctrine. P must prove:
• D is aware of dangerous conditions
• D knows or should know that children might trespass
• Th condition is likely to cause injury
• The expense of remedying the condition is slight compared to risk.
Rescuers:
generally no duty but if undertakes one, must do so reasonably
Statutes:
A clearly stated specific duty may be imposed by statute providing for criminal penalties if:
• The P is within the protected class
• The statute was designed to prevent to prevent the type of harm suffered by the plaintiff
NIED
- Subjecting the Plaintiff to the threat of physical impact or severe emotional distress likely to cause physical symptoms. 2. Negligent in creating the risk. 3. Cause and prox cause of symptoms. 4. (Bystander) closely related, be present at scene, and observe injury.
Negligence per se
Where the duty of care is set by statute, proof of violation of the statute is conclusive evidence of breach of duty. This is called negligence per se.
Res ipsa Loquitur
In some cases, the very occurrence of an event establishes that there was a breach of duty. In order to show Res Ipsa the P has to establish the accident causing injury would not have hgappened unless someone was negligent and the negligence is properly attributable to the defendant.
Proximate Cause:
A defendant is generally liable for harmful results that are the normal incidents of and within the increased risk caused by their negligent acts: This is the foreseeability test.
