Torts Flashcards

Question

Firefighter's Rule

Answer 1

Firefighters & police barred from recovery for injuries caused by the inherent risks of their jobs.

Answer 2

A duty of care is owed to a viable fetus. Failure to diagnose a congenital defect/properly perform a contraceptive procedure = parents may recover damages for ordinary medical expenses/pain and suffering.

Answer 3

ALL PERSONS OWE A DUTY TO BEHAVE IN WITH THE SAME CARE AS A REASONABLY PRUDENT PERSON IN SAME OR SIMILAR CIRCUMSTANCES. D's mental deficiencies/inexperience are not taken into account.

Answer 4

D who has superior skill/knowledge will be required to exercise that experience.

Answer 5

The hypothetical reasonably prudent person adopts D's PHYSICAL characteristics IF those characteristics are relevant to the claim.

Answer 6

Kids are held to the standard of a child with like age, education, intelligence and experience. *Children engaged in adult/potentially dangerous activities required to conform to adult standard (think: operating motorized vehicles; shooting guns). NB: under 5, without capacity for negligence.

Answer 7

A professional is required to possess the knowledge and skill of an AVERAGE MEMBER of the profession in good standing. (D must conform to colleagues). Drs: most courts apply national standard of care; Dr has duty to disclose risks of treatment for informed consent.

Answer 8

Traditional rule: duty owed depends on P's status on the land.

Answer 9

No duty owed.

Answer 10

``` Possessor must warn of HACK: highly dangerous artificial concealed conditions known to possessor. [known man made death traps] ```

Answer 11

One who enters onto land with possessor's permission for their own personal/biz purposes (social guest). Possessor has duty to warn of or make safe dangerous conditions: concealed known Possessor has no duty to inspect/repair.

Answer 12

Invitees enter the land in response to an invitation by the possessor. An invitee will lose invitee status if they exceed the scope of the invitation. Landowner duties: concealed known or could've been found by reasonable inspection

Answer 13

Most courts impose duty on landowner to exercise ordinary care to avoid a reasonably foreseeable risk of harm to kids caused by dangerous man made conditions on their prop. P must show: dangerous condition owner should be aware of owner knows/should know kids trespass condition likely to harm expense to remedy < magnitude of risk child does not have to come to the land for the risk!

Answer 14

owner who permits gen public to use land for fun without charging a fee is not liable for injuries suffered unless owner willfully and maliciously failed to guard/warn against condition.

Answer 15

duty for unreasonably dangerous artificial conditions or structures abutting adjacent land

Answer 16

Lessee - general duty to maintain premises Lessor - must warn of existing defects of which they are aware/have reason to know; hidden defects. If guest to T is liable, look to lessor (owner) AND lessee (possessor)

Answer 17

Seller must disclose concealed, unreasonably dangerous conditions of which S knows/has reason to know/knows B not likely to discover on a reasonable inspection

Answer 18

``` A clearly stated specific duty imposed by statute providing for criminal penalties may replace more general standard of care if: P within protected class Statute designed to prevent the harm suffered ```

Answer 19

Violation may be excused where: 1) compliance more dangerous than violation or 2) where compliance beyond D's control

Answer 20

Generally, NO LEGAL DUTY TO ACT/RESCUE Exception: - Special relationship b/w parties (formal relationships + common carriers, innkeepers, shopkeepers) - P in peril due to D's conduct - Assumption of duty by acting (but note: good Samaritan laws exempt drs/nurses from ord. neg. liability, not gross).

Answer 21

Duty to avoid NIED may be breached when D creates foreseeable risk of physical injury to P. - P was w/in zone of danger (high risk of physical impact) - P suffered physical symptoms from distress (sev. shock ok)

Answer 22

Bystander outside zone of danger who sees D negligently injuring another can recover damages for their own distress as long as: - P / injured person are closely related - P present at scene and personally observed the event

Answer 23

D may be liable for P's severe emotional distress when a duty arises from the r/ship (typically, commercial) such that D's negligence has great potential to cause ED. - doctor's misdiagnosis of terminal illness - mortuary's negligent cremation of remains

Answer 24

When D's conduct falls short of the standard of care, breach. Factual determination. May be shown by: - custom/usage - violation of statute OR - res ipsa loquitur (very occurrence of a thing = breach) [accident would not normally occur without negligence] [negligence probably attributable to D] Can be shown by ownership/control of instrumentality causing injury. Effect of res ipsa: P has made a prima facie case for negligence and no directed verdict may be given for D.

Answer 25

But for test! | But for a D's conduct, would injury have occurred?

Answer 26

When several causes bring about injury, and any one alone would have been sufficient, D's conduct is cause in fact if it was a substantial factor in causing the injury. 2 Ds, 2 breaches --> merged cause test.

Answer 27

Applies when there are two acts, only one of which causes injury, but unclear which one. Burden shifts to D to prove it wasn't him. 2 Ds, 1 breach --> unascertainable causes.

Answer 28

Is a limitation of liability! General rule - D is generally liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts [foreseeability test] Foreseeability: - passage of time - geographic distance - prior occurence Almost always foreseeable: - medical malpractice - rescuer negligence - protection or reaction forces for D's conduct - Disease or accident stemming from original injury

Answer 29

Including: 1) negligent acts of third persons 2) crimes and intentional torts of third persons 3) acts of God

Answer 30

Intervening forces that produce unforeseeable results are generally deemed unenforceable and superseding - they break the causal connection between the D's initial negligent act and the P's ultimate injury, thus delivering D liability.

Answer 31

Essential element - D takes P as they find them, meaning D is liable for ALL damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable. [Eggshell skull Plaintiff rule]

Answer 32

all damages (past, present, prospective): both economic damages (medical expenses) and noneconomic damages (pain and suffering + emotion distress)

Answer 33

Reasonable cost of repair or if property totally destroyed, its fair market value at the time of the accident.

Answer 34

Negligence on the part of the P that contributes to P's injuries. Contrib. Neg. is a defense Effect of Contributory Negligence - completely barred P's right to recovery at common law. EXCEPTION: Last Clear Chance Doctrine - permits a P to recover despite their contrib. negligence. Under this rule, the person the last clear chance to avoid an accident who fails to do so is liable for negligence.

Answer 35

P may be denied recovery if they assumed the risk of any damage caused by D's act. P must have: 1) known of the risk; and 2) voluntarily proceeded in the face of the risk

Answer 36

Knowledge may be implied where the risk is one that an average person would clearly appreciate. P may NOT be said to have assumed the risk where there was no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency.

Answer 37

P's contributory negligence is not a complete bar to recovery. Partial comparative negligence (MAJORITY) - still bars P's recovery if their negligence was more serious than D's negligence. Pure comparative negligence - recovery allowed no matter how great P's negligence was [MBE].

Answer 38

An owner is not strictly liable for injuries caused by domestic animals unless they know of that particular animal's dangerous propensities that are not common to the species. Injury caused by normally dangerous characteristics of domestic animals does NOT create strict liability - (bulls or honeybees). Classic example - dog that bites humans --> first bite = no liability; after first bite = you're on notice. Trespassing Animals - owner is SL for reasonably foreseeable damage done by a trespass of his animals.

Answer 39

Owner is SL to licensees and invitees for injuries caused by wild animals (even those kept as pets). SL Not avail to trespassers: - To recover for their injuries from a wild animal, a trespasser must prove the owner's negligence.

Answer 40

two requirements: (1) activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; (2) activity is not a matter of common usage in the community Common examples - explosives, dangerous chemicals, biological materials, radiation, nuclear energy SL does NOT apply when the injury is caused by something other than dangerous aspect of the activity.

Answer 41

Refers to the liability of a supplier of a defective product to someone injured by the product.

Answer 42

- Intent - Negligence - Implied warranties of merchantability and fitness for a particular purpose - Representation theories - Strict Liability

Answer 43

- D is a merchant - Product is defective - Product was not substantially altered since leaving D's control - P was making a foreseeable use of the product at the time of liability

Answer 44

Any commercial supplier can be held liable. - Does NOT extend to CASUAL SELLERS - Does NOT extend to SERVICES (products only) - Includes COMMERCIAL LESSORS (those who rent rather than sell products also can be held strictly liable) - Includes ENTIRE DISTRIBUTION CHAIN (manufacturers, wholesalers and retailers). WRONG MBE ANSWER - no contractual privity between P and D. [irrelevant]

Answer 45

Manufacturing defects - if a product emerges from manufacturing different from and more dangerous than the products that were made properly, it has a manufacturing defect. D will be liable if the P can show that the product failed to perform as safely as an ordinary consumer would expect (D must anticipate reasonable misuse).

Answer 46

When all products of a line are the same but have dangerous propensities, they may be found to have a design defect. Manufacturers will not be held liable for some dangerous products if the danger is apparent and there is no safer way to make the product. P usually must show that D could have made the product safer, without serious impact on the product's utility or price - e.g., was safer/more practical than D's design & costs about the same.

Answer 47

A product's noncompliance with govt safety standards establishes that it is defective, while compliance with safety standards is evidence - but NOT conclusive - that the product is not defective.

Answer 48

A product may be defective as a result of the manufacturer's failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users. Warnings should be: - prominent - comprehensible - provide info about mitigating the risk

Answer 49

P must show that the product has not been significantly altered since it left D's control. If the product moved through normal channels of distribution, it will be inferred that the product was not altered and that the defect existed when the product left the D's control.

Answer 50

P must have been making a foreseeable use of the product at the time of the injury. NOTE: Foreseeable use does NOT mean intended/appropriate way.

Answer 51

Physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic loss.

Answer 52

Disclaimers are irrelevant in SL cases if personal injury or property damages occur.

Answer 53

In contrib. negligence states: - No defense if P has failed to realize the danger or guard against it. - Defense if P knew of the danger and their unreasonable conduct was the very cause of the harm from the wild animal or abnormally dangerous activity or defective product. Assumption of the risk is a good defense to SL. Many comparative negligence states apply their comparative negligence rules to SL cases.

Answer 54

Private - substantial, unreasonable interference (by community standards) with another private individual's use or enjoyment of property that the other individual actually possesses or has a right of immediate possession. Think: inconsistent land use cases; spite cases; gross inconsideration cases Public - public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community. Coming to the nuisance: one may come to the nuisance and thereafter pursue an action.

Answer 55

One person commits a tort against a third party and another person will be liable to the third party for this act.

Answer 56

An employer will be vicariously liable for tortious acts committed by their employees if the tortious acts occur *within the scope of employment*

Answer 57

Detour - minor deviation from employer's business for their own purposes is still acting within the scope of employment (LIABLE) Frolic - substantial deviation from employer's business (NOT LIABLE)

Answer 58

Usually held that intentional torts by employees is not within the scope employment Exceptions: - employment is furthering the biz of the employer - force is authorized in the employment - friction is generated by the employment THINK: bouncer at a bar

Answer 59

Generally, the hiring party will not be vicariously liable for the tortious acts of an independent contract. Exception: where a duty is simply non-delegable due to public policy considerations [biz owner can be held liable if independent contractor working on biz premises hurts customer] Liability for own negligence - employer may be liable for their own negligence in selecting or supervising the independent contractor

Answer 60

Common law - no liability on vendors Modern law - dram-shop acts usually create a cause of action for any third person injured by the intoxicated patron

Answer 61

Traditional common law - when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable

Answer 62

Satisfaction - recovery of full payment is a satisfaction. Only one is allowed. Until there is satisfaction, one may proceed against ALL jointly liable parties. Release - in most states, a release of one tortfeasor does not discharge other tortfeasors unless it is expressly provided for in the release agreement.

Answer 63

Contribution and indemnity are doctrines that determine how JTs ALLOCATE between them the damages owed to P. Contribution - apportions responsibility among those at fault. - comparative contribution: imposed in proportion to the relative fault of the various defendants - equal shares: apportionment is in equal shares regardless of degrees of fault Indemnification - shifts entire loss between or among tortfeasors. - in vicarious liability situations - under strict products liability for the non-manufacturers

Answer 64

Between spouses - either spouse may bring an action for indirect interference with consortium and services caused by the D's tortious conduct [loss of household services, loss of society/companionship, loss of sex] Parent-child: a parent may maintain an action for loss of a child's services and consortium

Answer 65

A defamatory statement that specifically identifies P, published to a third party, that damages P's reputation through the falsity of the defamatory language, fault on D's part. A defamatory statement is one tending to adversely affect one's reputation. - Reputation is monetizable NOTE: a pure statement of opinion is not defamatory. Statement must specifically identify P - P must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the P.

Answer 66

If statement does not refer to P on its fact, extrinsic evidence may be offered to establish that the statement refers to the P. Group Defamation: If the defamatory statement refers to ALL members of a SMALL group, each member may establish that the statement specifically identifies them (every member of that small group wins) If the statement only refers to SOME members of a SMALL group, P can recover if a reasonable person would view the statement as referring to the P. If the statement is about a LARGE group, NO member can prove that the statement specifically identifies them (no one wins)

Answer 67

Publication means communication of the defamation to a third person who understands it. Publication must be made intentionally or negligently. It is the INTENT to PUBLISH that is the requisite intent

Answer 68

Defamation embodied in permanent form (writing/broadcast/radio). P typically doesn't need to prove special damages to recover and general damages are presumed.

Answer 69

Slander is spoken defamation. P must prove special damages, unless the defamation falls within one of the slander per se categories (damages presumed). Defamatory statements: - state that the P has a loathsome disease - adversely reflect on the P's business or profession - state that the P has committed a serious crime - impute that the P has engaged in serious sexual misconduct

Answer 70

Under traditional common law, P did not have to prove that the statement was false. Many states have altered that rule, however, and now require the P to prove falsity as part of the case-in-chief.

Answer 71

A majority of states require a showing of fault on the part of the D. Public Official or Figure Must Prove Actual Malice - Public figure: one who achieves pervasive fame or notoriety OR by voluntarily assuming a central role in a particular public controversy *Definition of Actual Malice: Actual malice is knowledge that the statement was false OR reckless disregard as to whether it was false *Deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quotation. Private Persons Must Prove Negligence if Matter of Public Concern ONLY negligence regarding the falsity must be proved if the statement involves a matter of public concern. - Matter of public concern: court will look at content, form, and context of the publication.

Answer 72

- Consent - Truth - Privilege - -> Absolute privilege - can never be lost * Between spouses * Remarks made in judicial/legislative proceedings/executives in "compelled broadcasts" - -> Qualified privilege - can be lost through abuse; arises only when there is a public interest in encouraging candor

Answer 73

- Appropriation of P's picture or name: unauthorized use of P's picture or name for the D's commercial advantage * Newsworthy exception - Intrusion on P's affairs or seclusion: must be in place with reasonable expectation of privacy and be highly offensive to a reasonably person - Publication of facts placing P in a false light: one attributes to P views they do not hold or actions they did not take. Must be highly offensive to a reasonable person under the circumstances. D must circulate the statement to the public at large. * If public interest matter --> need actual malice. - Public disclosure of private facts about P: public disclosure of P's private info; disclosure must be highly sensitive to a reasonable person. * Newsworthy exception

Answer 74

Consent & privilege defenses (not avail for appropriation/invasion of seclusion). Truth NOT A GOOD DEFENSE.