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
Modifies Comparative Fault
If a plaintiff is at less fault than defendant, recovery is reduced by apportioned liability. If plaintiff is at greater fault, recovery is barred. If equal fault, may recover or may require 51 percent. Plaintiff is compared to whole of multiple defendants.
Assumptions of risk
A plaitiff will not be able to recover for voluntarily encountering a known specific risk
Pure Several Liability
Each defendant is liable only for their part of the damages
Elements of Attractive Nuisance
(1) an artificial condition exists that the landowner knows or should know will attract children, (2) Land owners knows or has reason to know the condition possess a risk of death or serious bodily injury, (3) children, because of their youth, cannot appreciate the danger, (4) failure to take reasonable precautions, and (5) burden of precautions does not outweigh the danger
Elements of Res Ipsa Loquitur
(1) accident is the kind that does not occur without negligence, (2) exclusive control, (3) not due to plaintiff’s actions
Firefighter Rule
An emergency professional cannot recover for risks inherent in the job
Elements of Defamation
- Defamatory Language
- Concearning the plaintiff
- published to a third party
- Damages
Constitutional Limits of Defamation
Public figures / concern must have actual malice, which is knowing it was false or a reckless disregard of whether or not it was false.
Everyone else, negligence
What are the elements of Negligent Infliction of Emotional Distress?
Zone of Danger: Can recover for NIED if in zone of danger and suffer emotional distress. (majority rule requires physical manifestation).
Bystandard: Can recover if (1) the person injured was closely related, (2) present at the scene, (3) perceived the injury. (majority rule physical manifestation).
What are the elements of False Light?
The person attributed actions to the plaintiff that are untrue
The actions are highly offensive to a reasonable person
What is the rule on abnormally dangerous activities?
Strict liability where highly dangerous activities (covers duty and breach)
Highly dangerous where:
1. Foreseeable and highly significant risk of harm
2. Not the type of action commonly engaged in
What is the rule on strict product liability?
- The product was defective (manufacture, design or warning)
- The defect existed at the time it left the defendant’s control
- The defect caused the injuries when the product was used in a foreseeable way
What is the implied warranty of merchantability?
The product is generally acceptable and a reasonable fit for its ordinary and intended use.
What is the warranty of fitness?
If the buyer is relying on the seller’s skill and judgement, the product must be fit for the intended use.
Elements of Trespass to Chattels?
Trespass to chattel occurs where a person dispossesses the plaintiff of their chattel or uses or intermeddles with the use of chattel.
Elements of Conversion
Conversion occurs when the plaintiff interferes with ownership of chattel, seriously depriving the owner of its use.
Trespass to Chattel vs. Conversion
Trespass to chattel = Short-term / not serious
Conversion = Long term / Serious (ie Destroyed or damaged)
Elements of Battery
- Intent to cause contact
- Actions cause contact
- Contact is harmful or offensive
What is offensive contact for battery?
- Offensive to an ordinary person
- Offensive to a sensitive person if the defendant knew.
Elements of Public Nuisance?
A private citizen may recover for a public nuisance if they have suffered a harm different than that of the general public.
Elements of Private Nuisance?
Private nuisance requires showing that the nuisance substantially interferes with the owner’s use and enjoyment of their property and that the conduct would be offensive to a person of normal sensibilities.
Elements of Trespassing
Intent and invasion
What are the most common negligence defenses?
Contributory negligence, Comparative Fault, Assumption of the risk
