Torts Flashcards
Elements of negligence
- duty
- breach
- causation (actual and proximate)
- harm
Duty of care
- owed to foreseeable plaintiffs
- the amount of care that a hypothetical, ordinary, reasonable, prudent person acting under the same or similar circumstances would use
Do not take into account defendant’s particular characteristics. Do consider the defendant’s superior knowledge, age if a child, and physical characteristics
What is the standard of care owed by children
A child owes the duty of care of a hypothetical child of the similar age, intelligence, and experience
* For a physically disabled child their conduct must conform to that of a reasonably careful child with the same physical disability
* If a child is enagaged in adult activity, the child will be held to the same standard as a reasonably prudent adult
* Some states say children under a specific afe (7 or 4) cannot be negligent
Professional malpractice
Custom
- In a professional malpractice case custom = conclusive
- non prof mal cases custom = evidence
Informed consent
If a reasonable person in the plaintiff’s position would have refused the procedure or treatment, the doctor has breached his duty
The patient must till show the doctor’s failure to provide the patient with informed consent caused him harm in order to win
Torts brought against doctors
- wrongful conception
- wrongful birth
- wrongful life
- wrongful death
-Plaintiff can only recover if expert testimony establishes that the chance of survival absent negligence would have been greater tha 50% unless the statute recognizes loss of chance of survival
undiscovered trespasser
premises liability
- no duty of care
- cannot engage in intentional and willful misconduct
One who comes onto the land w/o permission who the premises possessor does not know about
discovered trespasser
premises liability
- warn or make safe any
- unreasonably dangerous
- concealed
- artificial (man-made) conditions
- the possessor knows of
Trespasser the landowner knows or should know about
licensee
premises liability
- warn or make safe
- all concealed dangers
- the possessor knows of
social guest
invitee
premises liability & exceptions
- warn or make safe
- all dangers
- the possesor knows or should know of
- there is a duty to make reasonable inspections
- exceptions
1. firefighters rule: firefighters and police are treated like licensees
2. receational land: if the owner allows the public to be on land for recreational purposes and charges no fee, the landowner is liable if he willfully and maliciously failed to guard against a danger
One that enters land to confer an economic benefit or one that enters land that is open to the public at large
attractive nuisance
premises liability
- there is a dangerous conition the possesor knows or should know
- children frequent the land and the possessor knows or should know
- the child cannot appreciate the risk
- the possessor fails to exercise reasonable care to eliminate the dange or protect the children
Discovered trespasser
negligence per se
a plaintiff can sue under a theory of negligence per se when
1. the defendant violated a statute w/o excuse
2. the right person was injured
3. the right injury was sustained
* the above factors are conclusive proof of duty and breach
* violation may be excused if compliance is more dangerous than violation, compliance is responsible, defendant is incapacitated and unable to comply
rescuers
- foreseeable plaintiffs
- must act with ordinary care in conducting the rescue
duty to act affirmatively
does not exist unless one of the following exists
1. special relationship
* psychotherapist-patient
* parent to child
* spouse to spouse
2. contract
3. statute
4. tort (if D caused P’s peril, there is a duty to act reasonably under the circumstances)
5. reliance
res ipsa loquitur
- allows a plaintiff to establish negligence when the circumstances surrounding the injury are unclear
1. probably negligence - the accident is something that is normally caused by someone’s negligence
2. probably defendant - the accident is normally due to the negligence of someone in defendant’s position (D had control over whatever injured P)
If the plaintiff can establish this he has made a case for breach and no directed verdict in favor of the defendant sholuld be given
actual cause
but for causation
The harm would not have occured if the defendant did not breach
Can be more than one actual cause
substantial factor test
- when two or moe people are acting in concert, ask was the breach a substantial factor in causing the harm
alternative causes
- plaintiff must show
1. all defendants are joined in the suit and
2. all defendants are negligent - buden shifts to each individual defendant to show their breach was not an actual cause
proximate cause
Harm must be foreseeable
* proximate cause is present
1. disease or subsequent accident that ocurs after an accident
2. medical malpractice occurs after an accident
3. rescue efforts to protect life and property endangered by D’s negligence
4. reactions
5. forseeable criminal acts or torts of 3rd parties
* proximate cause is not present
1. unforseeable acts of god
2. chain of causation broken
3. unforseeable criminal acts or torts of 3rd parties
harm
- must be an actual injury
- punitive damages are not recoverable
- eggshell skull: defendant takes the plaintiff as he finds him
NIED
- defendant is negligent and
- defendant comes very close to injuring P (zone of danger) or defendant injures someone closely related to P and
- plaintiff suffers physical symptoms caused by emotional stress
* special cases
-doctor patient
-erroneous reports of a relative’s death (do not need physical symptoms)
-mishandling a corpse (do not need physical symptoms)
defenses to negligence
- contributory negligence
-Bars p’s right to recover if he was negligent unless D had the last clear chance to avoid the injury
-only apply when the Q specifically says so - assumption of risk
-D must show P knew of the risk and
-voluntarily assumed the risk - comparative negligence
-percentages of fault are assigned to all parties involved
-pure: P can recover no matter how negligent he is
-partial: P cannot recover if he was more at fault than D
Battery and assault
Battery
* D acts with
* intent to cause a harmful or offensive contact (or imminent apprehension of such contact) and
* a harmful or offensive contact directly or indirectly results
Assault
* D acts with
* intent to cause a harmful or offensive contact (or imminent apprehension of such contact) and
* an imminent apprehension directly or indirectly result
notes
* intent = it is the defendant’s goal to cause injury or the defendant knows with substantial certainty that injury will result
* offensiveness is judged by a reasonable person standard
* apprehension = knowledge or anticipation of impending contact
false imprisonment
- D acts
- with the intent to confine or restrain P
- actual confinement occurs and
- P knows of the confinement or hurt by it
notes
-P is actually confined if escape is dangerous, embarrassing, or hidden
-merchant’s privilege
* Merchant has the privilege to detain a shoplifter if the merchant has a *reasonable belief *as to theft and detains the shopper in a *reasonable manner *for a reasonable time
IIED
- Defendant intentionally or recklessly
- engages in extreme or outrageous conduct, which causes
- severe emotional distress
trespass to land
- elements
1. defendant physically invades the land of another and
2. intends to be where he is
Physical invasion is not an intangible force
trespass to chattels
- elements
1. intentional interference with
2. personal property of another and
3. harm results - damages: cost to repair
conversion
elements
1. intentional interference with
2. personal property of another and
3. serious and substantial harm results
damages = the full market value at the time and place of conversion
transferred intent
applies when D intends to commit a tort against one person but instead either (a) commits a different tort aganist that person, (b) commits the tort he intended against a different person, or (c) commits a different tort against a different person
* intent is transferred
defenses to intentional torts
- consent
-express or implied - self-defense and defense of others
-A person who reasonably believes he is being or is about to be harmed by another may use force that is reasonably necessary to protect against imminent harm
-one may only use the degree of force necessary to protect himself
-may not use force if its mere verbal taunts, acting in retaliation, the threat is not imminent, he is the intial aggressor (unless the other party escalates or he withdraws) - necessity
-public necessity: protect the community as a whole
-D is not liable in tort and will not have to pay damages
-private necessity: protect an interest of his own
-D is not liable in tort but liable for damages
defamation
private figure, private concern
elements
1. defamatory statement
-plaintiff must be identified
2. unprivileged publication to a 3rd party
-only need intent to publish
3. fault
-negligence
4. damages
-libel: damages are presumed
-slander: damages are presumed for CLUB cases
* committing a crime of moral turpitude
* suffering from a** l**oathsome disease
* unchastity for a woman
* something that reflects badly on plaintiff’s business or profession
defamtion
private figure, public concern
elements
1. defamatory statement
-plaintiff must be identified
2. unprivileged publication to a 3rd party
-only need intent to publish
3. fault
-negligence
4. damages
5. falsity
defamtion
public figure
elements
1. defamatory statement
-plaintiff must be identified
2. unprivileged publication to a 3rd party
-only need intent to publish
3. fault
-actual malice = defendant made the statement with knowledge it was false or w/reckless disregard as to its truth or falsity
4. damages
5. falsity
defenses to defamation
- consent
- truth
- privileges
-absolute privilege: statements made during judicial, legislative, and executive proceedings; statements made between spouses
-qualified privilege: whenever candor is encouraged; speaker must have reasonable belief the statement is accurate and only dicuss matters relevan to the sitation
privacy torts
- intrustion (PPO)
1. D intentionally pries or intrudes
2. into a private place
3. in a way that would be offensive to a reasonable person - appropriation
1. unauthorized use of P’s name or likeness
2. to advertise a product - false light
1. defendant widely spreads facts about P
2. which place P in a false light that would be
3. offensive to a reasonable person - disclosure
1. defendant widely disseminates
2. private info about P
3. that would be highly offensive to a reasonable person
Usually have to do with the truth
nuisance
- private: there is a substantial unreasonable interference with plaintiff’s use or enjoyment os her property
-ignore hypersensitivity - public: an act unreasonably interferes with the health, safety, or morals of a community
-P must suffer unique damages
animals
- strict liability applies to injuies caused by wild animals if such injuries are the foreseeable result of having a wild animal
-safety precautions are irrelevant - show negligence for domestic animls
abnormally dangerous activities
- an activity that creates a forseeable risk of serious ham even when reasonable care is exercised and the activity is not a matter of common usage
products liability
-
Proper parties
-plaintiff can be anyone that was injured
-defendant must be a merchant (someone who routinely deals in goods of this kind - product is defective and
1. manufacturing defect: product came out in a condition that was not intended by the manufacturer
2. design defect: there is an alternative design that is (1) safer, (2) practical, and (3) cost-effective
3.absence of warning
-no warning: if there is a hidden risk there should be a warning. if the risk if obvious no warning is necessary
-there is a warning: examine the size of warning, color, etc
-evidence that plaintiff failed to read the warnings or that plaintiff would have ignored the warning will defeat a claim -
forseeable use
-can be a foreseeable misuse
market share liability doctrine
- applies when someone has an injury caused by a product but cannot prove which manufacturer made thr exact product
vicarious liability
Employers/principals are vicariously liable for torts of their employees/agents if the tort is (SMI)
* commited within the scope of employment,
* made a minor deviation from employment, or
* committed an intention tort (BAN) for the benefit of the employer,* a*uthorized by the employer, or one that naturally arose due to the nature of employment
independent contractors
A principal is generally not liable for the torts of independent contractors unless it was a nondelegable duty or an inherently dangerous activity
joint and several liability
- joint and several (default): P can recover all damages from either defendant
- several liability: each defendant is only liable for his percentage of fault
indemnification and contribution
- contribution: if defendants are jointly and severably liable and one defendant pays the entire amount of damages, he can seek the percentage owed by other defendants
- indemnification: one defendant can seek 100% of damages from the other defendant
-usually where there is one obviously actively negligent party
