Torts Flashcards
Neglgience
“In any negligence action, a plaintiff must show that the defendant owed the plaintiff a duty to conform his conduct to a standard necessary to avoid an unreasonable risk of harm to others, that the defendant’s conduct fell below the applicable
standard of care, and that the defendant’s conduct was both the cause in fact and the proximate cause of the plaintiff’s injuries.”
all that just means is: (1) duty, (2) Breach (3) damages/harm and (4) actual and proximate cases
Claims against children::
a child owes the duty of care of a hypothetical child of similar age, intelligence, and experience, acting under similar circumstances.
- Exception—adult activity: if the child is engaged in adult activity—i.e., one which is “normally undertaken only by adults, and for which adult qualifications are required” (e.g., driving a car, tractor, motorcycle, motor scooter, snowmobile, etc.)—then the child will be held to the same standard of care as a reasonably prudent adult engaged in such activity.
- Exception—tender years: some states recognize the tender-years doctrine in which a child less than seven years of age cannot be found negligent.
Premises Liability:
Premises liability: the standard of care owed depends on the legal status of the plaintiff
Undiscovered Trespasser
- Definition: One who comes onto the land without permission or privilege who the premises possessor does not know about.
- Rule: undiscovered trespassers are not owed any duty of care.
Discovered trespasser:
- Definition: A trespasser that the premises possessor knows orshould know of.
- Rule: the possessor must warn or make safe any unreasonablydangerous concealed artificial conditions that the landowner knows of.
Attractive nuisance:
The premises possessor is liable if:
- he knows or hasreason to know that children are likely to trespass,
- the condition is onewhich he knows or should know involves an unreasonable risk of death orserious bodily harm,
- the children because of their youth do not discoverthe condition or realize the risk involved,
- the burden of eliminating thedanger is slight compared with the risk involved and the benefit to thepossessor, and
- the possessor fails to exercise reasonable care to protect thechildren. This doctrine applies only if the child is engaging in an activityappropriate for children (i.e., not an “adult activity”).
Licensee
- Definition: A social guest who has permission to enter the land but does notconfer an economic benefit on the possessor of land.
- Rule: The landowner must warnor make safe all concealed dangers (artificial or not, unreasonably dangerous or not)that the landowner knows of.
Invitee
- Definition: Those that enter either to confer an economic benefit (e.g.,customers or employees of a store) or enter land that is open to the public at large(e.g., church, museum, etc.).
- Rule: The premises possessor must warn or make safe alldangers that the landowner knows or should know of. The premises possessor has aduty to inspect!
Negligence per se
2009)
A plaintiff can sue under a theory of negligence per se when the plaintiff can show three elements:
- (1) the defendant violated a statute without excuse,
- the plaintiff was in the class of people that the statute was trying to protect, and
- the plaintiff received the injury that the statute was trying to prevent
If a plaintiff can establish the above elements, he has offered conclusive proof of duty and breach. (He must stillprove cause and harm.)
Res ipsa loquitur:
the res ipsa loquitur doctrine allows the jury to infer negligence when the event is of a kind which ordinarily does not occur in the absence of negligence, other responsible causes are sufficiently eliminated by the evidence, and the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
Harm: Eggshell-skull rule
A defendant takes his victim as he finds him. The plaintiff with an
“eggshell skull” who suffers damages greatly in excess of those that a normal victim would suffer is
entitled to recover fully for his injuries.
negligent infliction of emotional distress
- This may be applicable when the defendant is negligent and the plaintiff has not sustained any actual physical trauma to his body.
- There generally must be a physicalmanifestation of emotional distress (e.g., heart attack).
- Some jurisdictions only allow recovery if the plaintiff was “within the zone of danger.”
- Others allow it when theplaintiff was closely related to the victim, was located near the scene of the accident, and suffered shock resulting from “the sensory and contemporaneous observance of the accident.” I
In almost all jurisdictions, mere receipt of news relating to an accident does not suffice
Pure Comparative negligence—majority law:
The trier of fact (i.e., the judge or jury)apportions fault among the parties. The amount of damages apportioned to the plaintiffbecause of the plaintiff’s negligence is subtracted from the total damages awarded bythe jury.
Partial Comparative Negligence
There are some jurisdictions in which apportionment is not available unless the jury concludes that the plaintiff is less than 50% at fault. In these “partial” or “modified” comparative negligence jurisdictions, if the jury concludes that the plaintiff was 50% or more at fault, he cannot recover.
Contributory Negligence
This is a common law doctrine that states if the jury finds that the plaintiff’s negligence contributed to his injuries to any degree, the plaintiff cannot recover. Most states have abandoned this doctrine.
