Torts Flashcards
Elements of Negligence
Duty, Breach, Cause (proximate and cause in fact), and damages.
Negligence Duty Rule
Duty is an obligation to protect against an unreasonable risk of injury. A duty may be imposed by law, assumed by the defendant, or may exist by virtue of a special relationship. There is a general duty of each person to avoid creating an unreasonable risk of injury to others; however, this negligence plaintiff be within the zone of foreseeable harm.
Breach Rule
Breach is a failure to meet an obligation of duty. A person has failed to meet the duty standard when their actions fall outside of the standard of care.
Standard of Care Rule
Standard of care is the conduct which the defendant must do or avoid doing to satisfy their duty to the plaintiff. Generally, each person owes a duty to act as a reasonably puudent person under the circumstances. Under the modern approach to standard of care, a reasonably prudent person will consider the likelihood or harm, the foreseeable severity of the harm, and the burden of avoiding the harm.
Actual Cause Rule
A defendant’s breach is an actual cuase of the plaintiff’s injuries if those injuries would not have occurred but for the breach. Alternatively, see substantial factor or alternative causation.
Proximate Cause Rule
A breach is the proximate cause of the harm if it is within the scope of liability,” meaning that it is a reasonably foreseeable consequence of the breach or, put another way, that it is the type of harm that made the conduct tortious.
Damages Rule
A plaintiff must suffer actual damages as a result of the breach. Actual damages include personal injury and property damage.
Vicarious Liability
A theory by which one person is strictly liable for the actions of another person.
Joint and Several Liability
Where two or more defendants are liable for an indivisible harm, each is subject to liability for the entire harm.
Limitiations on Joint and Several Liability
Most states limit to 10 percent, California limits to economic damages.
Contribution
If two or more tortfeasors are liable for damages, any who has paid the full damages may seek contribution from others for their part of the negligence.
Pure Several Liability
Each tortfeasor is liable for the damage they caused.
Traditional Contributory Negligence
A plaintiff cannot recover if they contributed to the injury through their own negligence.
Last Clear Chance Rule
A plaintiff can overcome the traditional contributory negligence rule if the defendant had the last clear chance to prevent the harm.
Pure Comparative Negligence
A plaintiff’s recovery is reduced by their own apportioned liability
