Torts Flashcards
Negligence Elements
In a negligence action, the plaintiff has to show that the defendant owed a duty, the defendant breached that duty, and that the defendant caused, (actual and proximate) the plaintiff’s injury.
Respondeat Superior
An employer is vicariously liable for injuries caused by negligence or strict liability of the employee if the tortious act occurred within the scope of employment.
Reasonable Person Standard
Generally, the standard of care
imposed on a defendant is that of a reasonably prudent person under similar circumstances. A person is required to exercise the
care that a reasonable person under the same circumstances would recognize as necessary to avoid or prevent an unreasonable
risk of harm to another person. In determining whether a specific precaution was warranted, a jury must weigh the probability
and gravity of the injury against the burden of taking such precautions.
Strict Liability
Abnormally dangerous activity: Defendants engaged in abnormally dangerous activities may be held
strictly liable for damages caused by that activity, even in the absence of negligence. Activities are considered abnormally
dangerous if they create a foreseeable and highly significant risk of physical harm even in the exercise of reasonable care, and the
activity is not commonly engaged in.
Defective Product: strict products liability, the seller or distributor of a defective product may be liable for any harm to persons or property caused by such 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
Animals: always liable for wild animals, domestic only if the propensity to attack
Negligence Per Se
the unexcused violation of a statutory standard of care; however, compliance
with a statutory standard does not insulate an act against liability for negligence.
Actual Cause
Causation requires a showing that the defednant’s action were the cause-in-fact of the plaintiff’s injury. But for the defendant’s conduct the plaintiff wouldn’t have been injured.
Proximate Cause
requires that the plaintiff suffer a foreseeable harm that is not too remote and is within the
risk created by the defendant’s conduct. An intervening cause is a factual cause of the plaintiff ’s harm that contributes to her
harm after the defendant’s tortious act is completed. A superseding cause is any intervening cause that breaks the chain of
proximate causation between the defendant’s tortious act and the plaintiff ’s harm, thereby preventing the original defendant from
being liable to the plaintiff.
Eggshell Plaintiff Rule
A defendant takes a plaintiff as they find them, thus a defendant can be held liable for a tort that is exacerbated by a preexisting condition of the plaintiff.
Defective Products
Under strict products liability, the manufacturer, retailer, or other distributor of a defective product may be
liable for any harm caused by the product. The plaintiff must prove (i) the product was defective (in manufacture, design, or
failure to warn), (ii) the defect existed at the time the product left the defendant’s control, and (iii) the defect caused the plaintiff ’s
injuries when the product was used in an intended or reasonably foreseeable way. A manufacturing defect is a deviation from
what the manufacturer intended the product to be that causes harm to the plaintiff. The test is whether the product conforms to
the defendant’s own specifications
Implied warranty of merchantability: warrants that the product being sold is generally acceptable and reasonably fit for the
ordinary purposes for which it is being sold. Any product that fails to live up to this warranty constitutes a breach, regardless of
any fault by the defendant.
Comparative Fault
Contributory negligence: No recovery for plaintiff if there is even 1% of fault
Pure Comparative negligence: Damages are reduced by the amount of fault
Partial Comparative negligence: No recovery if the Plaintiff is more at fault than the defendant
Affirmative to Act
requires that the plaintiff suffer a foreseeable harm that is not too remote and is within the
risk created by the defendant’s conduct. An intervening cause is a factual cause of the plaintiff ’s harm that contributes to her
harm after the defendant’s tortious act is completed. A superseding cause is any intervening cause that breaks the chain of
being liable to the plaintiff.
Defenses to Negligence
