Torts Flashcards
Torts liabillity
Breach a duty owed, causation, damages.
Duty
An individual owes a duty of care if the plaintiff is in the zone of danger (is a forseeable plaintiff). Assume forseeabilty unless extreme facts.
Reasonable person standard
Reasonably prudent person under same or similar circumstances. The reasonable person follows rules and is careful.
Professional duty of care
A professional with above average skill or knowledge will be based on what a reasonably prudent person with their greater skill or knowledge would have done. They must posess and exercise knowledge and skill of an ordinary member of the profession in good standing. (the profession sets the standard of care e.g. licesning board).
Informed consent
A doctor has a duty to provide enough information about risks so a patient can make an informed decision about whether to proceed. Any risk that would cause a rasonable person to decline treatment if disclosed, must be disclosed.
Physical Disability duty
Includes some subjectivity. Duty of care based on person with that disability under the circumstances.
Child duty of care
Children owe a duty of care for a child of like age, inteligence, and experience. If they are engaging in an adult activity, they are held to an adult standard. (e.g. if the activity is potentially dangerous even when an adult is doing it).
Landowners
Owners and occupiers. The land is the physical structure and surrounding land. A harm can arise from activity or conditions on the land.
Landowner duty of care to undiscovered trespasser
No duty. Undiscovered trespasser includes those you anticipate will be on the land e.g. someone who regularly takes a shortcut.
Landowner duty of care to Discovered trespasser
Owe duty of care to warn of a manmade death trap (not natural) that is known to landowner and likely to cause death or serous bodily injury. It must be a trap (concealed) and serious (not slippery floor).
Landowner duty of care owed to a licensee (guest)
A licensee comes for their own purposes or their business. Includes social guests. The condition must be concealed dangerous condition that is known to owner/occupier. A slippery floor counts if owner/occupier knows of it. First responders are licensees.
Landowner duty of care owed to invitee
Landowner owes a duty to inspect for dangerous conditions (reasonable care) for an invitee. Land is held open to the public for business purposes. Must warn and inspect.
Courts will check for inspection frequency. A warning is enough to avoid liablity.
Modern landowner duty
Only use trespasser/invited guest distinction. All invited guests get reasonable care.
Statutory duty of care/ Negligence per se
A plaintiff may only recover if the statute was intended to protect the same class of persons as the plaintiff and from the same type of harm.
Negligence per se is violating a duty and breach through a statutory violation.
Ask: Does the statute apply? Is the violation of the statute excused?
Duty: Negligent Infliction of Emotional Distress.
P may recover in a near miss case where the D almost injures P who physically feared for life and suffers physical consequences. P must show they were in the zone of danger and suffered some physical symptom.
Sees harm of a close family member: P must have witnessed close family member issued by D’s negligence.
NIED caused by D who has a business or high risk relationship with P and run significant risk if IED if they act negligently. E.g. incorrect doctor diagnoses of terminal illness, morge mishandles remains. (most states don’t require physical harm in this case. )
