Torts Flashcards
Elements of negligence
Duty, Breach, Causation, Damages
Who is owed a duty under a negligence analysis?
All foreseeable plaintiffs
Psychotherapists’ duty to warn
If a patient makes credible threats of physical violence, under a duty to warn the intended victim
What is standard of care in negligence analysis?
To act as a reasonably prudent person under the circumstances
Special standards of care: Possessors of Land (Modern Approach)
Must exercise reasonable care under the circumstances to all land entrants, except trespassers
Special standards of care: Possessors of Land (Traditional Approach)
- Trespasser (on land without consent or permission) Duty to refrain from willful, wanton, reckless, or intentional misconduct
- Invitee (invited as member of the public or a business visitor) Duty to inspect and discover unreasonably dangerous conditions and protect the invitee from them
- Licensee (enters with express or implied permission for a specific purpose) Duty to warn of concealed dangers that are known or should be obvious and use reasonable care in conducting activities
Liable for attractive nuisance if (5)
- An artificial condition exists in a place where the owner knows or should know that children are likely to trespass
- The condition imposes an unreasonable risk of serious bodily injury
- The children cannot appreciate the danger due to their youth
- The burden of eliminating the danger is slight compared with the risk of harm
- The land possessor failed to exercise reasonable care to protect children
Protect from foreseeable attacks by 3rd parties
Landlord duty to tenants
Duty of child
Duty to act as reasonable child of the same age unless involved in adult activity, then duty to act as a reasonably prudent adult
Evidence of an industry or community custom is…
admissible as evidence of relevant standard of care. Not conclusive
Duty of professionals
to perform at same level as another practitioner in the same community
Duty of doctor
to perform as an average doctor based on the national standard
Breach occurs when
D fails to meet the applicable standard of care
Modern factors for determining breach (3)
- Foreseeability of the harm
- Severity of the harm
- Burden on D to prevent the harm
Res Ipsa Loquitur arises when there is no….
direct evidence of D’s negligent conduct
Res Ipsa allows the trier of fact to..
infer that there was negligent conduct
For res ipsa, P must prove that: (3)
- The type of accident would not normally occur absent negligence
- Injury was caused by an agent or instrumentality within the exclusive control of the defendant
- Injury was not due to the P’s own actions
Negligence per se arises when
there is a statute that imposes a specific duty
For negligence per se, P must be within the class of
persons the statute is meant to protect and must suffer the type of harm the statute was meant to protect against
For negligence per se, D’s violation of the statute must be the
proximate cause of P’s harm
2 types of causation
actual and proximate
Actual cause
P must show that but-for D’s actions P’s injury would not have occurred
Substantial Factor Rule
Arises when there are multiple causes of harm and each alone would have been a factual cause of the injury; the conduct of each D is a cause in fact if it was a substantial cause of the injury
Alternative Causation
Arises when the P’s harm is caused by multiple D’s (2-5) and each D’s conduct was individually tortious; Burden of proof can shift to Ds to prove that each was not the cause in fact
Proximate cause
P must show that the injury was a foreseeable result of D’s conduct
Intervening cause
An outside force that contributes to the P’s harm after the D’s act. If foreseeable will not cut off D’s liability. If unforeseeable, it is a superseding cause and cuts off D’s liability
For damages, P must prove ________, not just economic loss
actual injury
Eggshell skull rule
arises when P has a preexisting condition or vulnerability. D is liable for the full extent of P’s injuries, even if the extent of the harm was not foreseeable
2 types of negligent infliction of emotional distress
zone of danger/bystander
Zone of Danger NIED
P must have been within the zone of danger of the threatened physical impact. Must have some physical manifestation of the emotional distress
Bystander NIED (3 parts)
A bystander who is outside the zone of danger may recover for NIED if the P:
1. Is closely related to a person harmed by D’s negligence
2. was present at the scene of the injury and
3. personally observed the injury
Distress must be manifested by physical symptoms
Contributory Negligence
Old rule; if P’s negligence contributed to his harm, it was complete bar to recover
Pure Comparative Negligence
Minority rule: P’s recovery is reduced by the amount of P’s fault, regardless of how at fault the P is
Modified or partial comparative negligence
Majority rule; P’s recovery is reduced by the amount of P’s fault, but P cannot recover if he is more at fault than the D
Defenses to Negligence: Assumption of risk
P’s recovery may be barred or reduced if she voluntarily and knowingly assumed the risk of the behavior
A D engaged in an abnormally dangerous activity is subject to _______
strict liability for personal injuries and property damage caused by the activity
Abnormally dangerous activity
High risk of harm, that is not commonly found in the community, which has a risk that cannot be eliminated with due care
Elements of liability for abnormally dangerous activity
- Causation (actual vs proximate)
- Damages (actual injury not just economic loss)
- No Defenses–Assumption of risk
_____ liability applies to wild animals and domestic animals if the owner knows or has reason to know of a dangerous propensity
Strict
Strict Products Liability
D in the business of selling a commercial product may be strictly liable for a defective product causing foreseeable injuries to P
Proper Ds in strict products liability actions (3)
Manufacturer, distributor, and retailer
Defective product
A product is defective when, at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or inadequate instructions or warnings (failure to warn)
Manufacturing Defect
A deviation from what the manufacturer intended the product to be that causes harm to P. Test is whether the product conforms to D’s own specifications
Design Defect: Consumer-expectation test
P must prove that the product is dangerous beyond the expectation of the ordinary consumer
Design Defect: Risk utility test
P must prove that a reasonable alternative design that is economically feasible was available to D, and failure to use that design rendered the product unreasonably dangerous
Failure to warn
Exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduce or avoided by providing reasonable instructions or warnings
Under strict products liability, a D may still be liable even if P misuses the product, as long as
the misuse is foreseeable
For strict products liability, P must suffer what kind of damages
Personal injury or property damage
When may contributory fault be a defense to bar or reduce recovery in a strict products liability action
If P knows of the defect and unreasonably uses the product anyways
Express warranty
A promise or guarantee made by D about the product. If the product does not meet this warrant, D has breached this warranty and P can recover damages
Implied warranty of merchantability
A product that is sold is impliedly warranted to be reasonably useful and safe for the average use
Implied Warranty of Fitness for Particular Purpose
If a seller knows or has reason to know of a particular purpose for which some item is being purchased by the buyer, the seller is guaranteeing that the item is fit for that particular purpose
A P may bring an action for defamation if D’s defamatory language (3)
- is or or concerning P
- is published to a third party who understands its defamatory nature; and
- damages P’s reputation
Defamatory language
Language diminishes the respect, esteem, or goodwill towards P
Libel
written statements, general damages presumed
Slander
Oral statements, damages are not presumed
Slander per se
Damages are presumed when statements involve professional reputation, disease, crimes of moral turpitude, or unchaste behavior
Constitutional defamation requirements apply if
- P is a public official or public figure
- P is a private individual but the statement involves a matter of public concern
2 constitutional defamation requirements
- Falsity: P must prove statement is false AND if P is a public figure, must also prove that D acted with actual malice (D either had knowledge that statement was false or acted with reckless disregard as to the truth or falsity of the statement); if P is private individual and D’s statement involves a matter of public concern, P is required to prove that D acted with negligence or actual malice
- Limits on damages: P must prove actual damages
Defamation Defenses (4)
- Truth (absolute defense)
- Consent (as long as D didn’t exceed scope of defense)
- Absolute Privilege (Used for remarks during judicial or legislative proceedings, between spouses, or in required publications)
- Qualified Privilege (Affects and important public interest or is in the interest of D or a third party, can be lost if D acted with malice)
What are the 4 invasion of privacy torts
1.Misappropriation
2. Intrusion upon seclusion
3. False Light
4. Public disclosure of private facts
Misappropriation
unauthorized use of P’s name, likeness, or identity for D’s advantage (commercial or otherwise); P must prove lack of consent and injury
Intrusion upon seclusion
D’s acts of intrusion into P’s private affairs are objectionable to a reasonable person
False Light
P must prove that D published facts about P or attributed views or actions to P that place him in a false light and are highly offensive to a reasonable person
Public Disclosure of Private Facts
Actionable if the publication would be highly offensive to a reasonable person, and is not of legitimate concern to the public
If multiple Ds are negligent and any one of them could have caused the P’s harm, joint and several liability allows the P to recover from any of them even if it is impossible to prove which D actually caused the harm But the P must first show
that each of the Ds was negligent
