Torts Flashcards
Where multiple forces combined to cause the plaintiff’s harm and any one alone would have been sufficient to cause the harm, what is the test for ACTUAL CAUSATION? i
Whether the defendant’s conduct was a SUBSTANTIAL FACTOR in causing the harm.
Are service providers like dentists or barbers subject to strict product liability?
No. Strict products liability claims can be brought against COMMERCIAL suppliers or sellers—i.e., those in the business of manufacturing, selling, or otherwise distributing products of the type that harmed the plaintiff. However, service providers are not subject to strict products liability.
Is the owner of a wild animal strictly liable for a plaintiff’s FEARFUL REACTION to the sight of an unrestrained wild animal?
YES. The owner of a wild animal is strictly liable for harm that is caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal or directly results from the wild animal’s abnormally dangerous characteristics.
Under pure severability, can a negligent plaintiff recover from another negligent plaintiff?
NO. Under pure comparative negligence, a negligent plaintiff’s recovery is reduced by his/her proportionate share of fault. And if multiple defendants cause the plaintiff indivisible harm, several liability limits the plaintiff to recovering from each defendant the portion of damages that corresponds to his/her proportionate share of fault.
What are the recovery rules under partial/modified comparative negligence?
Under modified (or partial) comparative negligence, recovery is reduced by the plaintiff’s percentage of fault and barred if it exceeds 50%. If multiple defendants cause the plaintiff indivisible harm, then several liability limits the plaintiff to recovering the portion of damages that corresponds to each defendant’s share of fault.
When can a public figure recover for defamation?
A plaintiff who is public figure or official can recover for defamation ONLY if the plaintiff proves that the defendant made a false statement about the plaintiff with actual malice—i.e., with KNOWLEDGE or reckless disregard of the statement’s falsity.
Must a plaintiff show ACTUAL DAMAGES to recover for assault?
Nope.
Must a plaintiff show ACTUAL DAMAGES to recover for trespass?
Nope.
For lawyers and other professionals, what is dispositive to show duty of care?
evidence of custom.
When there are multiple defendants who are liable for a single and indivisible harm to the plaintiff, each defendant is liable for. . .
. . . the ENTIRE AMOUNT of the harm
What kind of damages can a plaintiff recover for assault?
Nominal (if no actual loss or harm) and actual (or compensatory) damages. If no physical harm or actual damages, a plaintiff can still recover nominal damages (usu not awarded if also receiving actual damages).
What are a land possessor’s duties to an INVITEE?
–inspect for unknown dangers
–make safe or warn
–prevent harm from active operations
What are a land possessor’s duties to an LICENSEE?
–warn of known latent defects
–use reasonable care in active operations
What are a land possessor’s duties to an ANTICIPATED or KNOWN TRESPASSER?
–warn or known artificial dangers
– use reasonable care in active operations
What are a land possessor’s duties to an UNKNOWN or UNANTICIPATED TRESPASSER?
No duty.
When does RES IPSA LOQUITUR permit an inference of neglience?
–harm was the type usu. caused by negligence, AND
–evidence tends to eliminate other potential sources of that harm
When is the owner of a domestic animal STRICTLY LIABLE for any physical harm caused by the animal?
When the owner KNEW or had REASON TO KNOW about the animal’s dangerous propensities
AND
the plaintiff’s harm arose from those dangerous propensities.
Note: because this is strict liability, it does not matter what precautions the owner took to lock up the vicious guard dog or whatever. Still liable.
In a pure comparative-fault jurisdiction, when the plaintiff and the defendant are both entitled to recover damages, what can reduce/offset the plaintiff’s recovery?
The defendant’s recovery (and vice versa).
How does a plaintiff prove CAUSATION in a negligence action?
To prove causation in a negligence action, the plaintiff must show that the defendant’s actions were the actual (but for) and proximate (forseeable) cause of the plaintiff’s injuries. Proximate cause occurs when the plaintiff’s harm was a reasonably foreseeable consequence of the defendant’s conduct.
What is the LEARNED INTERMEDIARY rule?
Under the learned-intermediary rule, a manufacturer of a prescription drug or medical device will NOT be held strictly liable for inadequate warnings or instructions if the manufacturer warned the prescribing physician about the risk of harm associated with that product. (Manufacturer need not warn consumer if they warned the doc.)
What duty of care does a driver owe her passenger?
In most jurisdictions, automobile drivers owe a duty of ordinary care to guests (who ride free) and passengers (who pay money for the ride).
But a minority of jurisdictions have enacted “guest statutes,” under which an automobile driver’s only duty to guests is to refrain from gross or wanton and willful misconduct.
When is a commercial supplier of a part of a defective product subject to STRICT LIABILITY?
The commercial supplier of a component that is integrated into a defective product is subject to strict liability when (1) the component is defective or (2) the supplier substantially participated in the process of integrating the component into the product’s design and the component’s integration caused that product to be defective.
How does negligence per se work?
Under the doctrine of negligence per se, the majority approach is that duty and breach can be CONCLUSIVELY PRESUMED if:
- the defendant violated a statute or ordinance
- that statute or ordinance was intended to prevent the type of harm suffered by the plaintiff and
- the plaintiff is within a class of persons that the statute or ordinance was intended to protect.
Under the minority approach for negligence per se, a defendant’s violation of a statute or ordinance creates a REBUTTABLE PRESUMPTION (as opposed to a conclusive presumption) that the defendant breached a duty of care.
When is a commercial seller subject to STRICT PRODUCTS LIABILITY?
A commercial seller is subject to strict products liability when (1) a defective product harms a foreseeable plaintiff when it was used in an intended or reasonably foreseeable way and (2) the defect existed at the time the product left the commercial seller’s control.
Under respondat superior, is an employer liable if an employee disobeys instructions?
Could be. An employer may be vicariously liable for a tort committed by its employee acting within the scope of employment, EVEN IF the employee did not follow the employer’s instructions.
Under modern rules, does a land possessor owe a duty of care to trespassers?
Under the modern approach, land possessors owe all land entrants—except flagrant trespassers—a duty of reasonable care to protect them from foreseeable risk of harm. A flagrant trespasser is one who enters another’s land without permission and whose entry is particularly egregious—e.g., entry that results in commission of a crime.
In negligence, what standard of care is an INVOLUNTARILY intoxicated plaintiff held to?
In negligence cases, a voluntarily intoxicated person is held to the same standard as a reasonably prudent sober person. In contrast, the conduct of an involuntarily intoxicated person will be measured by the standard of a reasonably careful person with the same level of intoxication.
How is a plaintiff’s contributory negligence treated in a traditional common-law jurisdiction?
Under traditional common-law rules, the plaintiff’s contributory negligence (i.e., failure to exercise reasonable care for his/her own safety) is a complete defense to negligence and bars the plaintiff’s recovery of damages.
Explain the informed consent doctrine.
Under the informed-consent doctrine, a physician who fails to disclose the risks of a medical treatment or procedure to a patient is liable for negligence if (1) the failure to disclose caused the patient to consent and (2) the undisclosed risk materialized and resulted in physical harm.
NOTE: if a dr fails to warn but the side effect doesn’t occur, no negligence. Even if the patient would’ve refused the treatment if they had known about the side effect.
When can a bystander recover in Intentional Infliction of Emotional Damages?
A defendant whose extreme and outrageous conduct has harmed a third party may be liable for intentional infliction of emotional distress if (1) the plaintiff contemporaneously perceived that conduct, (2) the plaintiff was CLOSELY RELATED to the third party, and (3) the defendant knew of the plaintiff’s presence and that relationship.
In a negligence action, are steps taken by the plaintiff prior to the injury relevant?
NO. In a negligence action, a plaintiff can recover compensatory damages based on: (1) the plaintiff’s initial physical harm, (2) any subsequent harm traceable to that initial harm, and (3) steps taken to mitigate the initial harm. But the plaintiff’s actions prior to the defendant’s negligent act are not a factor in determining damages.
What is the general duty of care?
In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.
What duty does a landowner owe to someone near but not on her property?
A landowner generally does not owe a duty to a person not on the premises, such as a passerby, who is harmed by a natural condition on the landowner’s premises. An exception exists, however, with respect to trees in urban areas.
With respect to an artificial condition, the landowner generally owes a duty to prevent an unreasonable risk of harm to persons who are not on the premises. Similarly, with respect to an activity conducted on the premises by the owner or by someone subject to the owner’s control, the landowner generally owes a duty of reasonable care to persons who are not on the premises.
