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
