Torts

Question 1

Negligence Elements

Answer 1

The prima facie case for negligence requires the plaintiff to show: 1. the defendant owes a duty of care to conform to a specific standard of conduct for the plaintiff’s protection against an unreasonable risk of injury; 2. the defendant breached that duty; 3. the breach was the actual and proximate cause of the plaintiff’s injury; and 4. the plaintiff suffered damages to person or property.

Question 2

Standards of Care: (Reasonably Prudent Person:)

Answer 2

1. **Defendant must act as a reasonable prudent person under the same or similar circumstances would. Duty of care extends to any persons to whom Defendant’s conduct creates unreasonable risk of injury.
   
   1. Owners of property have a duty to exercise reasonable care with respect to activities on the land to avoid unreasonable risk of harm to other outside the property. To be owed a duty, those outside the property must be within the foreseeable “zone of danger” from the Defendant’s activity.

Question 3

Standards of Care: (Professionals)

Answer 3

Professionals must exercise the knowledge and skill of a member of the profession in good standing. A national standard of care applies to doctors’ conduct

Question 4

Standards of Care: (Children)

Answer 4

Children must conform to the standard of care of a child of like age, intelligence, and experience (except the adult standard applies if the child is engaged in an adult activity)

Question 5

Standards of Care: (Landowners)

Answer 5

Landowners standard of care under traditional rules usually depends on the status of the person injured on the property

1. Trespassers (those who come onto the land without permission)
   1. no duty to undiscovered trespassers
   2. duty to warn of or make safe known highly dangerous artificial conditions if not obvious to discovered and anticipated trespassers
2. Licensees (those who come onto the land with express or
   implied permission but for their own purpose (includes social
   guests)
   1. duty to warn of or make safe all dangerous artificial and natural conditions if not obvious
3. Invitees (those entering as members of the public or for a
   purpose connected to the business of the landowner)
   1. duty to warn of or make safe all dangerous artificial and natural conditions if not obvious AND
   2. duty to reasonably inspect for dangerous conditions

Question 6

Breach

Answer 6

When defendant’s conduct does not conform with the standard of care. Whether the defendant breached the applicable duty of care is a question for the trier of fact.

Question 7

The res ipsa loquitur doctrine

Answer 7

The res ipsa loquitur doctrine enables a plaintiff to establish breach of duty just from the fact that an injury occurred that would not ordinarily occur unless someone was negligent. However, the plaintiff must establish evidence connecting a particular defendant with the negligence to support a finding of liability against that defendant. When more than one person was in control of the instrumentality that cause the injury, res ipsa loquitur generally may not be used.

Question 8

Causation (Actual Cause)

Answer 8

1. Actual Cause:
   
   1. But-for Test: Usually established by the “but for” test—an act is the actual cause of an injury when it would not have occurred but for the act
   2. Unascertainable Causes Approach: This test applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause.

Question 9

Causation (Proximate Cause)

Answer 9

2. Proximate Cause:
   
   1. General rule: A defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts. This is a foreseeability test.
   2. Foreseeable Intervening Forces: Foreseeable intervening forces (such as a negligent rescue, medical malpractice) do not cut off the defendant’s liability for the consequences of his negligent act.
   3. Superseding Forces: Intervening events that produce a harm outside of the scope of what one would normally anticipate from the defendant’s negligence are generally deemed unforeseeable and superseding. Such a superseding event will break the chain of causation and relieve the defendant of liability. It is ultimately a question or the jury whether defendant’s conduct was a proximate cause of plaintiff’s injury.

Question 10

Damages

Answer 10

• Comparative Fault
  
  • Under the modern comparative negligence approach, fault is apportioned between the parties. The plaintiff’s percentage share of fault reduces his total damages award by that percentage. Jurisdictions applying a partial comparative negligence approach bar recovery for plaintiff who are 50% or more at fault.

Question 11

Respondeat Superior

Answer 11

Under the doctrine of respondeat superior, an employer is vicariously liable for tortious acts of an employee that occur within the scope of the employment relationship. Intentional torts are usually outside the scope of employment unless they were done for the purpose of serving the employer or if they were foreseeable.

Question 12

Respondeat Superior (Independent Contractor: )

Answer 12

Independent Contractor: A principal will not be vicariously liable for the tortious acts of its gent if the agent is an independent contractors unless the contractors is engaged in inherently dangerous activities. Such an activity does not have to be classified as abnormally dangerous; it need only be an activity in which there are special dangers to others inherent in or normal to the activity.

Question 13

Strict Liability (Defective Products)

Answer 13

• Defective Products
  
  • The prima facie case for products liability required (1) a commercial supplier, (2) production or sale of defective product (unreasonably dangerous to use) when it left the defendant’s control, (3) the defective product was the actual and proximate cause of plaintiff’s injuries, and (4) damages.
    
    • A casual supplier will not be strictly liable.
    • A commercial supplier’s potential liability extends to all foreseeable plaintiffs.
  • Under a manufacturing defect theory, the product must be defective from the time it left the manufacturer’s hands. All commercial sellers (including the store that sold
    the product) are liable for manufacturing defects.

Question 14

Strict Liability (Abnormally Dangerous Activities)

Answer 14

• Abnormally Dangerous activities
  
  • An activity may be characterized as abnormally dangerous if it involves substantial risk of serious harm to person or property even when reasonable care is exercised. Whether an activity is abnormally dangerous is question of law that the court can decide.
  • For an activity to be abnormally dangerous: (1) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (2) the activity must not be a matter of common usage in the community.

Question 15

Negligence Per Se

Answer 15

A criminal statute may serve to establish a specific standard of care in place of the general standard of ordinary care if: a. The plaintiff is within the class that the statute was intended to protect and b. The statute was designed to prevent the type of harm suffered. An unexcused violated of a statutory standard of care if negligence per se, which means that it establishes the fire two prima facie elements of negligence (duty and breach.)