Torts Flashcards

Question

# Torts - Negligence Duty: Children

Answer 1

Children are held to standard of a child like **age**, **intelligence**, and **experience** (subjective test). However, child engaged in **potentially dangerous adult activites** (operating motor vehicle) may be held to an adult standard of care. Children under the **age of five** generally do **not** have the capacity to be negligent.

Answer 2

A professional is required to possess knowledge and skill of the **average member** of the profession/occupation in **good standing**. **Physicians** Most courts apply a national standard of care to evaluate their conduct. Physicians have a **duty to disclose** risks of treatment. It is sufficient to enable the patient to give informed consent. It is **breached** if the risk is serious enough that a **reasonable person** in patient's position would have withheld consent on learning risk.

Answer 3

Discuss this duty when plaintiff is **injured** by **dangerous conditions** on someone else's property. When plaintiff is injured by an **activity** on defendant's land --> **ordinary standard of care** . Duty to: 1. Persons _Off_ Premises 2. Persons _On_ Preferences . **Active Operations** For all classifications, the duty of **reasonable care** is applied to **activities on the land** . **Attractive Nuisance** Landowner has a duty to exercise **ordinary care** to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on their property if: 1. The landowner **knows or should know** of the dangerous condition 2. The landoner **knows _children_ frequent the area** 3. The condition is **likely to cause harm** (it is dangerous due to childrens' **inability to appreciate risk**, _AND_ * 4. The **expense of remedy** is **slight**compared to the **level of risk**

Answer 4

Generally, a landowner owes **no duty** to protect someone outside the premises from either natural or artificial conditions on the land, _EXCEPT_: **Natural Conditions Exception- Trees:** Duty to maintain trees so they do not cause harm to persons off the premises . **Artificial Conditions Exceptions:** Exceptions for artificial conditions include 1. Duty to protect from **unreasonably dangerous artificial conditions,** and 2. Duty to take **precautions to protect passersby** from dangerous conditions

Answer 5

The owner/possessor of land owes a duty to those on the premises **depending on the classification** of the person coming onto the land. . **Classifications** 1. Invitees 2. Licensees 3. Trespassers . **Invitees** An invitee is on the premises for the **business purpose** of the **owner/possessor**. *Duty to Invitee* The possessor/owner owes a duty to invitee to **inspect**, **discover**, **repair**, and **protect** against **known or discoverable dangers** _IF_ the owner/possessor: 1. **Knows** or by reasonable inspection **should have discovered** the dangerous condition 2. Should realize it involves an **unreasonable risk of harm** _AND_ 3. Should expect invitee will **not discover/realize the danger** _OR_ will **fail to protect themself** against it. . **Licensees** A licensee is on the premises for their own purpose, rather than for the possessor's benefit (Social Guests). *Duty to Licensee* The possessor/owner owes a duty to a licensee to exercise **reasonable care** to **make the condition safe** _OR_ **warn of the condition** and risk if the possessor/owner: 1. **Knows** or **has reason to know** of the condition 2. Should realize it involves an **unreasonable risk of harm** 3. Should expect invitee will **not discover/realize the danger**, _AND_ 4. Licensees **do not know** or **do not have reason to know** of the condition/risk involved. ***Solictors:*** Solicitors and licensees unless you have a no trespassing or no soliciting sign or a locked gate. . **Trespassers** A trespasser is on the property without the consent of the owner/possessor *Duty to Trespassers* The possessor/owner's duty to trespassers only extends to **artificial dangerous conditions** * **Known/Anticipated Trespassers:** Duty to adequately warn of **highly dangerous** (involving risk of serious bodily harm or death) **artificial conditions** _created_ or _maintained_ by the owner/possessor that are **non-obvious/concealed** _AND_ **known** by the owner/possessor. * **Unknown Trespassers:** The duty is limited to not engaging in **wanton** or **willfull harmful conduct** | only give the rule for the applicable classification

Answer 6

**Firefighter's Rule** Firefighters, police, and other first responders are **prohibited** from recovering for injuries caused by the **special risks** of doing their job. . **Rescuers** Defendant is liable to a rescuer who is injured during a rescue if the **defendant's negligence** put either defendant or third persons in the position of requiring rescue. Rescuers are **foreseeable** because danger invites rescue. . **Common Carriers** Common carriers (railroads, airlines, etc) owe a **hightened duty** to use the **highest degree of care**to aid and assist **their passengers** . **Custom** Custom or usage in an industry or trade may be introduced as evidence of a duty or lack of duty. . **Generally No Duty of Affirmative Action** Generally, there is no duty to act or rescue _EXCEPT_: 1. **Special Relationship** (Parents, innkeepers, common carriers, shopkeepers, etc.) 2. **Peril Due to Own Conduct** 3. **Assumption of Duty** (Applies once a person starts taking rescue action) 4. **Duty to Prevent Harm by Third Persons** One who (1) has actual ability and authority to control someone's actions, _AND_ (2) knows or should know the person is likely to commit acts that would require exercise of this control

Answer 7

Generally, there is no duty to prevent emotional distress _UNLESS_ plaintiff suffers **physical harm** To establish a **duty** the plaintiff usually must: 1. Be within the **zone of danger** _AND_ 2. Suffer **physical symptoms** from the emotional distress . **Exceptions (Doesnt Require Danger Zone or Physical Symptoms** 1. Plaintiff and victim are **closely related** + Plaintiff was **present** + Plaintiff **perceived** the injury 2. The duty arises from a **special relationship** between plaintiff and defendant, so the negligence has **great potential** to cause emotional distress (physician and patient) 3. Defendant mishandles relative's **corpse** 4. Defendant **erroneously states** a relative has died

Answer 8

1. General Breach 2. Res Ipsa Loquitur 3. Negligence Per Se . **General Breach** Where defendant's conduct falls short of the level of care required by the applicable duty ***Custom:*** When the standard is reasonable prudence, evidence of a custom or useage of others may be used to establish how reasonable person would behave. . **Res Ipsa Loquitor** The fact finder can **infer** breach if: 1. Defendant had control of instrumentality of harm _AND_ 2. Harm would not normally have occured in absence of negligence . **Negligence Per Se** Plaintiff may establish conclusive presumption of duty _AND_ breach where 1. Defendant violated a **criminal ordinance or statute**, 2. Plaintiff is a member of the** class of persons** the statute intends to protect, and 3. Plaintiff suffered the **type of harm** the statute intends to prevent. * **Compliance Dangerous or Impossible:** violation of a statute may be excused if compliance is (1) **more dangerous** than violation _OR_ (2) **beyond defendant's control** * **Conclusive Presumption:** A finding of negligence per se results in the **conclusive presumption of duty _and_ breach** * **Compliance Does Not Establish Due Care:** Compliance itself does not necessarily establish **due care** (just establishes duty and breach) *Order of Analysis (If NPS)* 1. Ordinary Duty 2. Specialized Duties 3. Ordinary Breach 4. Breach of Specialized Duties 5. Negligence Per SE 6. Actual Cause 7. Proximate Cause 8. Harm

Answer 9

**"But-For" Test** But for defendant's breach, plaintiff would not have been injured. . **Substantial Factor Test** Where there are **several causes** of plaintiff's injury, and of which alone would have caused plaintiff's harm, plaintiff can establish factual causation by showing defendant's conduct was a substantial factor in causing plaintiff's harm. . **Unascertainable Cause Test** Where there are **two or more negligent acts**, *only one causes the injury*, _but_ it is **unknown which act caused the harm**, then the ***burden shifts*** to the defendants and each defendant must prove their negligence did not cause the harm

Answer 10

Generally, proximate cause is established where the type of harm plaintiff suffered was a **foreseeable result** of defendant's conduct. . **Foreseeable Intervening Events** * Medical malpractice * Negligence of rescuers * Reactive forces * Disease or accident * Defendant's conduct increased risk of harm

Answer 11

One sentence: "Plaintiff was harmed because she suffered a broken leg"

Answer 12

Only discuss if there is _time_ and they are _reasonable_. . Discuss _both_ **contributory** and **comparative** if either may apply. . 1. Contributory Negligence 2. Comparative Fault 3. Assumption of Risk 4. Emergency . **Contributory Negligence** 1. Complete Bar to Recovery 2. Last Clear Chance 3. Inattentive Plaintiff (Plaintiff could have discovered, but Defendant knew, should have known, etc. but failed to fix) . **Comparative Fault** 1. Pure Comparative Fault - Reduces the recovery by the % of plaintiff's fault 2. Non-Pure Comparative - Bars recovery if plaintiff's fault exceeds 50% . **Assumption of Risk** Plaintiff is denied recovery if 1. They **know** of the risk, 2. They **voluntarily assume** the risk _OR_ **proceed in the face of** the risk, _AND_ 3. They **understood** the risk. NOTE: Certain risks are not assumed: traveling on a **common carrier**, protected by **statute**, **fraud**, **force**, or **emergency** . **Emergency** 1. Defendant did not create the emergency 2. Defendant acted as a reasonable person under the same emergency

Answer 13

**Public Nuisance** Plaintiff must show: 1. Interference with a **common public interest** (health, safety, property rights, etc), _AND_ 2. If a private party, there mst suffer a **harm different in kind** from the harm suffered by the public in general. . **Private Nuisance** 1. An **unreasonable** invasion of another's interest in the **use and enjoyment of their land** _AND_ 2. The invasion is either: * **Intentional** _OR_ * **Unitentional** and otherwise actionable as _negligence_, _recklessness_, or _abnormally dangerous_. (Court will balance harm)

Answer 14

Trespass to land requires: 1. **Entry onto or remaining upon** 2. Land in the **possession of another** 3. without the possessor's **consent** _or_ a **lawful privilege** . **Physical Invasion** can be by a person or their object and includes subterranean and air space . **Mistake** is _not_ a defense . **No Harm Required** for nominal damages absent threat of repeated trespass . Under the **Necessity Defense**, the defendant is liable for **actual damages**, but _not_ **punitive damages** . **Typical Remedy** = Injunction

Answer 15

1. **Animals** * Domestic * Wild 2. **Abnormally Dangerous Activities**

Answer 16

1. An **owner** of a domestic animal 2. Is **liable** for the **harm done** by the animal 3. **_Only If:_** * They **know** _or_ have **reason to know** * Of the Animal's **vicious tendencies** * That are **not common** to the species **Includes:** Cats, Dogs, Pigs, Horses, Sheep, Goats, Bees, Etc. . Common tendencies for **livestock** may include kicking, charging, or trampling.

Answer 17

**Owners** _and_ **possessors** of wild animals are Strictly Liable for the harm caused by those animal. . Plaintiff must show: 1. Defendant **owned/possessed** 2. A **wild animal** 3. That **caused harm** to plaintiff 4. **Of a kind** related to the wildness of the animal . **Includes:** All non-domestic Animals . **Tresspassers** must prove **negligence** of owner

Answer 18

1. Defendant carried on an **_abnormally dangerous activity_** 2. Which **actually** _AND_ **proximately** causes harm 3. The **risk of which** makes the activity abnormally dangerous . **Abnormally Dangerous Activity Factors** 1. The **high degree** of risk/harm 2. The **gravity** of the risk 3. The **inability to eliminate risk** through reasonable care, and 4. Whether the activity is **not of common use** in the community

Answer 19

1. Three Theories * Strict * Negligent * Breach of Warranty 2. Strict Product Liability --> Product Defects * Manufacturing Defect * Design Defect * Failure to Warn 3. Negligent Products Liability 4. Breach of Warranty * Express * Implied * Fitness for Particular Purpose

Answer 20

1. Strict 2. Negligent 3. Breach of Warranty Liability applies to everyone in the vertical chain of distribution Cover ALL THREE theories

Answer 21

1. Defendant is **in the business** of selling/distributing products 2. Defendant sells/distributes the **defective product** 3. The defect exists _at time of sale/distribution_ and the product **remains unchanged**, _AND_ 4. The defect **actually** _and_ **proximately** causes harm to a **foreseeable person** . **Defendant in the Business:** Commercial suppliers -- manufacturers, wholesalers, retailers, distributors. _NOT_ casual sellers. **_Product Defects_** **Manufacturing Defect** A manufacturing defect occurs where the product **departs from the design**--such as an assembly line error . **Design Defect** 1. Risk Utility Plaintiff must prove: * **Inherently unreasonable** _and_ **significant risk**, _AND_ * The product has **little to no utility** 2. Alternative Design Plaintiff must prove: * **Reasonable** _and_ **Practical** *alternative design* * That would gave been **economically feasible** and * Would have been **safer** *NOTE:* Only discuss if a low-cost alternative design is mentioned **Failure to Warn** A manufacturer is subject to liability for failure to warn if the manufacturer: 1. **knows** or **has reason to know** the product is **likely to be dangerous** for its **intended use** 2. Has **_no_ reason to believe** users of the product will realize the danger, _AND_ 3. **Fails to adequately warn** users of either: * The product's **dangerous condition**, OR * **Facts** which make the product **likely to be dangerous** * NOTE: Consider the **obviousness** of the risk

Answer 22

1. Duty The **manufacturer** owes a duty to all **foreseeable users** _and_ **bystanders**, if when **negligently made**, the product: * Is **reasonably certain (probable)** to imperil user, _AND_ * If the plaintiff is **not immediate purchaser**, but manufacturer knows product is likely to be used by persons other than the immediate purchaser 2. Breach 3. Actual Cause 4. Proximate Cause 5. Harm 6. Defenses

Answer 23

**Three Types:** 1. Express Warranty 2. Implied Warranties of Merchantability 3. Fitness for Particular Purpose . **_Express Warranty_** 1. Warranty **made expressly** 2. **Relied on** by purchaser, _AND_ 3. Breach causes harm to **foreseeable persons** . **_Implied Warranty of Merchantability_** 1. **Existence** of warranty 2. **Reliance** by buyer 3. **Breach** 4. Breach is **proximate cause** of loss . ***Merchantability*** Merchantability means that goods sold by a merchant who sells goods of the kind must: 1. be of **fair average quality** 2. be fit for **ordinary purposes** for intended use 3. be **adequately packaged/labeled**, _AND_ 4. conform to any promises or affirmations **made on the container/label** . **_Fitness for Particular Purpose_** 1. **Existence of Warranty** 2. **Breach** 3. Breach is **proximate cause** of loss . ***Fitness*** 1. Seller knos of plaintiff's special need, _AND_ 2. Recommends product with that knowledge

Answer 24

**Strict Liability** where: 1. Defamatory statement 2. Of or concerning the plaintiff, 3. Publication, _AND_ 4. Harm . **_Defamatory Statement_** * statement that holds the plaintiff up to ridicule or harm to reputation * Opinion not defamatory _unless_ necessarily founded in asserted facts . **Slander** 1. Oral Defamation 1. **No recovery** absent proof of special damages, _UNLESS_ **slander per se:** * Accusation of a serious crime * imputes presence of contagious or loathesome disease * tends directly to injure in respect to office, profession, trade, or business * impotence or a want of chastity (and serious sexual misconduct) * statement that causes actual damage . **Libel** 1. Written/Broadcase defamation 2. Libel Per Se (on its face, damages presumed) 3. Libel Per Quod (requires proof of extrinsic facts and the defamatory meaning in light of those facts) . **_Of or Concerning Plaintiff_** The hearer or reader reasonably understands that the statement is defamatory and refers to the plaintiff . **_Publication_** Requires communication to a third person. Includes anyone who publishes or republishes. . **_Harm_** 1. Harm is to reputation. 2. Requires proof of special damages unless per se defamation

Answer 25

Two major defenses: **truth** and **privilege** . **_Truth_** Truth is a complete defense to defamation. . **_Consent_** Consent is a defense to defamation. * Express * Implied * Scope * Capacity to Consent . **_Privilege_** **(1) Absolute** Includes statements between 1. **spouses** and 2. Those made in: * The proper discharge of an official duty (legal duty imposed on government official) * Legislative Proceeding * Judicial Proceeding; _OR_ * In the initiation or course of any other official proceeding authorized by law. NOTE: Doesn't matter if there was malice/falsity . **_Qualified_** A qualified privilege exists if the statement is made **without malice**, to an **interested person**, by someone who: 1. Is **also interested** 2. Stands in relationship with interested person as to afford reasonable ground for supposing an **innocent motive** for communication, _OR_ 3. Is **requested** by person interested to give information . **_First Amendment Defenses_**

Answer 26

**Plaintiff is Public Official/Person** Plaintiff must _also_ prove: (5) The statement was **false** (6) Defendant acted **with malice** (knowledge that it was false or reckless disregard for the truth) . **Private Plaintiff + Matter of Public Concern** Plaintiff must _also_ prove: (5) **Falsity** and (6) That the defendant make the false statement, either: * **negligently** in order to obtain **actual damages**, _OR_ * With **malice** to recover **presumed** or **punitive damages**

Answer 27

1. Intrusion into Secusion 2. Public Disclosure of Private FAct 3. False Light 4. Appropriation . **_Intrusion to Seclusion_** 1. Defendant **unreasonably** _and_ **seriously** interferes with plaintiff's interest in **not having affairs known**, _AND_ 2. Defendant should have realized their conduct would **offens person of reasonable sensibilities** . **_Public Disclosure of Private Fact_** 1. Public disclosure 2. Of a private fact 3. That would be **offensive** or **objectionable** to a reasonable person 4. That is **not of legitimate public concern** **Private Fact:** a fact is private if the plaintiff has made **reasonable attempts** to keep the matter private **Newsworthiness** 1. Social Value 2. Depth of Intrusion 3. Voluntarily acceded to public notoriety . **_False Light_** 1. Defendant **publicized private matter** concerning plaintiff 2. That places plaintiff before public in **false light** 3. That would be **highly offensive** to a reasonable person, _AND_ 4. If it is a **matter of public interest,** that defendant acted **with malice** (knowledge or reckless disregard of the falsity of the matter and the false light) . **_Appropriation_** 1. Appropriation or use 2. Of Plaintiff's identity 3. by Defendant 4. For Defendant's commercial use

Answer 28

**_Intentional Misrepresentation_** 1. Misrepresentation of **material past or present fact** 2. **Scienter** (Knew or Believed statement was false or had no bases) 3. **Intent to Induce** plaintiff to act or refrain from acting in reliance on misrepresentation 4. **Causation** (*Actual* reliance) 5. **Justifiable Reliance** 6. Damages (**Actual Pecuniary Loss**) . **Concealment** (1) Requires an **omission of material fact** that makes defendant's previous statement misleading or untrue _OR_ they had a **duty to disclose** (+ remaining IM elements.) . **Duty to Disclosue** No duty to disclose, _UNLESS_ 1. **Fiduciary** to plaintiff 2. Selling **real property** knowing plaintiff is unaware/cant reasonably discover, _OR_ 3. Defendant's words have deceived plaintiff . **_Negligent Misrepresentation_** (2) **Scienter** requires that defendant: * Made statement honestly believing them to be true * But without reasonable ground for such belief

Answer 29

**_Interference with Contract_** 1. **Interference** (Action, not Omission) 2. Which is Intentional and 3. Improper or Unlawful (and Unprivileged), 4. In Contract between Two Other PErsons, 5. Causing one of them to Not Perform on Contract . **_Interference with Economic Relationship_** 1. Economic relationship between Plaintiff and third party; 2. Defendant knows of relationship 3. Intentional wrongful acts, independent of interference itself, designed to disrupt relationship 4. Actual disruption of relationship; _AND_ 5. Damages are proximately caused by acts

Answer 30

**_Purely Economic Loss_** Generally not recoverable in **negligence**, _UNLESS_ there is also injury to person or property . **_Punitive Damages_** Only recoverable if Defendant's conduct was malicious, willful, or completely reckless . **Tort Damages** 1. Causal 2. Foreseeable 3. Reasonably Certain, and 4. Unavoidable

Answer 31

Where there is **joing-and-several liability** _AND_ **comparative fault**, contribution allows any tortfeasor who is required to pay more than his share of the damages to have a claim against the **other joint tortfeasors** for the excess he paid. . Does not apply in non-JSL jurisdictions.

Answer 32

Shifts liability 100% from one defendant to another. . Available under: 1. Vicarious Liability (when only one party liable) 2. Strict Products Liability 3. Considerable Difference In FAult