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