TORTS Flashcards
NEGLIGENCE: PRIMA FACIE CASE
Elements:
(1) Duty of care
(2) Breach of duty
(3) Causation
—> Actual cause and proximate cause
—> * Note - the MBE may refer to actual causes as “cause-in-fact” or “factual cause,” and proximate cause as “legal cause”
(4) Damages
Negligence basics
>Negligence is analyzed under an objective standard by comparing D’s actions to a reasonable person under similar circumstances
—>I.e., negligence law assesses D’s behavior based on the common judgment of a collective of people
> Assess D’s behavior given the circumstances under which she acted
DUTY OF CARE
D owes a duty of care to all foreseeable victims of his activities
Default duty of care - reasonably prudent person (RPP)
>D’s duty is to behave like a reasonably prudent person under the circumstances
—> RPP is considered to be someone with D’s physical characteristics but with the knowledge and mental capacity of an ordinary person
Foreseeable victims - those within the zone of danger
>Zone of danger = the area around D’s activities in which a P could foreseeably be injured
>Rescuer’s exception - If D puts himself or another in danger and a third person attempts to rescue, D can be held liable for the rescuer’s injuries, even if unforeseeable
—> Does not apply to firefighters or police
>Prenatal injury - a duty of care is owed to a viable fetus
>Intended economic beneficiaries - a duty of care is owed to third-party beneficiaries if their harm is foreseeable
SPECIALIZED STANDARD OF CARE
Children - held to the standard of care of a like child of similar age, education, intelligence, and experience (subjective test)
> Generally, children under seven lack the capacity to be held negligent
Common carriers & innkeepers - held to an “utmost care” standard
> Liabe liable for even the slightest negligence to passengers or guests
Custom or usage in an industry - can be used to establish a standard of care, but failure to adhere does not automatically give rise to a breach of duty
Professionals - expected to act with the care of an average member of the profession in good standing in similar communities
> Specialists (e.g., neurosurgeons) are held to a national standard of care
STATUTORY STANDARD OF CARE
An existing statute may establish a duty of care, in which case the specific duty imposed y the statute will replace the general common law duty of due care
Requirements:
(1) The statute provides a criminal penalty
(2) Standard of conduct is clearly defined in the statute
(3) P is within the class of people the statute was designed to protect
(4) The statute was designed to protect against the type of harm P suffered
Violation of statutory standard of care - negligence per see
>Generally, violation of the statute is negligence per se, meaning P must only prove causation, not breach of duty
>Comlaince does not automatically clear D of liability
Statutory standard of care does not apply if:
(a) Compliance is more dangerous than non-compliance
(b) Compliance is impossible under the circumstances
DUTY OF CARE FOR OWNERS & OCCUPIERS OF LAND TO TRESPASSERS
Owners and occupiers of land may have a duty of care for anticipated trespassers and child trespassers
> same standard of care for owners and occupiers
Unknown or undiscovered trespassers - no duty owed
Anticipated trespassers - where the owner has reason to believe the trespasser on her land
> Activities - The owner has the duty of reasonable care in carrying out activities on her property
> Dangerous conditions - owner has a duty to make safe or warn of any known, concealed, man-made hazards
—> Note - this is rare; look for spring guns, traps, etc.
Attractive nuisance doctrine for child trespassers
> The owner must take reasonable care to eliminate dangers on her property or protect children from those dangers if:
(1) She is aware or should be aware of a dangerous condition (natural or artificial) on her property
(2) She knows or should know children are in the vicinity
(3) The condition is likely to cause injury if encountered
(4) The magnitude of the risk outweighs its utility or the expense of remedying it
DUTY OF CARE FOR OWNERS & OCCUPIERS OF LAND TO LICENSE & INVITEES
Licensee - one who enters land with owner’s permission for his own purpose or business (i.e., not for landowners benefit)
> E.g., relatives, friends, social guests
Invitee - one who enters land held open to the public or who enters with the owner’s permission to confer a commercial benefit
>E,g., store patron, concert-goer, door-to-door salesperson
Duty of care owed:
> Activities carried out on property - reasonable care
>Known dangerous conditions - duty to warn or make safe
>Duty to inspect -n/a for licenses
—>Invitees - owners have a duty to conduct a reasonable inspection for non-obvious dangers and make them safe
—>*Note - this is the only significant difference between duties for licensees and invitees
Scope of duty - limited by scope of the invitation/license
>Owner’s duty extends only to those areas where one is an invitee or licensee (e.g., store owner does not owe duty of care in employees-only area
**Note - police and firfighters are considered licensees, but cannot recover for injuries on the job
BREACH OF DUTY
D breaches his duty when his conduct falls short of the standard of care owed under the circumstances
To demonstrate a breach, P can argue:
(a) D breached the applicable standard of care - includes:
—>RPP standard
—> Negligence per se - violation of a relevant statute
—> Specialized standard of care
—> Custom or usage in an industry - an automatic breach, but may be relevant
(b) Res ipsa loquitor - the very occurrence of the accident causing P’s injuries suggests negligent conduct
—> Arises if facts cannot establish a breach of duty because circumstances surrounding events are unknown to P
—> Requirements - Pmust show:
(1) Inference of negligence - the harm would not have occurred absent negligence
(2) Attributable to D - this type of harm normally results from negligence by one in D’s position
> Often satisfied by showing injury-causing instrument was in D’s exclusive control
(3) Injury was not attributable to the plaintiff
ACTUAL CAUSE
Establishes a causal connection between the alleged breach of duty and the resulting injury
“But for” test - but for D’s alleged breach of duty, P’s injury would not have occurred
Substantial factor test - for multiple causes of P’s injury
> D’s breach is the actual cause if it was a substantial factor in bringing about P’s injury
> Used if multiple causes bring about P’s injury and any of them alone would have caused the injury
—> E.g., a fire starts on D1’s land and D2’s land, each of which spreads to P’s land and destroys P’s house
Burden shifting test - for several possible causes for P’s injury
>Used if multiple D’s act (often simultaneously), only one causes P’s injury, but it is unclear which D caused the injury
—->E.g., P is hit by a stray bullet at a busy firing range and its unknown which shooter hit P
> The burden of proving the actual cause shifts to Ds
—>If no D can prove another D was responsible, all D’s are jointly and severally liable
**Note - MBE may refer to actual cause as “cause-in-fact”
PROXIMATE CAUSE
Establishes that it is fair under the law to hold D responsible for P’s injuries
Foreseeability - measuring stick for proximate cause
> D is liable for the foreseeable outcome of his conduct
Direct causes - If P’s injury is the direct consequence of D’s negligent conduct, D is liable unless the outcome is unusually bizarre or unpredictable
Indirect/Intervening causes - where contributing acts occur between D’s conduct and P’s injuries
> D is usually liable if the injury could have possibly resulted even without the intervening forces
> Approach - consider the type of harm being protected against by holding D negligent for his conduct
—> If P’s resulting injury is the type of harm being protected against, D’s conduct is the foreseeable, legal cause of P’s injury
“Eggshell Plaintiff Rule” - D takes P as he finds him and is liable for the full extent of P’s injuries, regardless of whether they are foreseeable
DAMAGES
P must prove damages, which are not presumed in negligence cases; nominal damages are not available
Types of damages:
> Personal injury - D must compensate P for all damages
—> Includes past, present, and prospective damages
—> Economic and non-economic damages are recoverable
> Property damage - P can recover reasonable cost of repair
—> If property is irreparable, damages = full market value at the time the accident occurred
> Punitive damages - only recoverable if D’s conduct is wanton and willful, reckless, or malicious
Non-recoverable damages - P can never recover for:
> Interest from the date of damage in personal injury cases
> Attorneys’ fees
Duty to mitigate - P has a duty to take reasonable steps to mitigate damages
AFFIRMATIVE DEFENSES: COMPARATIVE & CONTRIBUTORY NEGLIGENCE, ASSUMPTION OF RISK
Comparative negligence - D can establish that P’s injuries are at least partially the result of P’s own negligence
> Court apportions fault between P and D and reduces P’s recoverable damages accordingly
> Partial/modified comparative negligence - P can only recover damages if he was less than 50% at fault
> Pure comparative negligence - P can recover damages even if he was more than 50% at fault
Contributory negligence - P is barred from recovery if D establishes that P’s negligence contributed to her injuries
> Last clear chance defense - P can rebut D’s contributory negligence claim by alleging D had the last clear chance to avoid the injury-causing accident
SAssumption of risk - D can deny P’s recovery by establishing that P assumed the risk of damage caused by D’s act
> Requirements - D must show:
(1) P knew or should have known the risk (objective standard)
(2) P voluntarily proceeded in the face of that risk
** Note - defenses vary by state; MBE questions usually note what defenses apply; otherwise assume pure comparative negligence
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
P may recover for emotional distress resulting from D’s negligence, but only if P’s emotional distress gives rise to some physical manifestation
Elements:
(1) D’s negligence results in a close risk of bodily harm to P
—> P must be in a “zone of danger” to recover
—> I.e., D’s act must have nearly caused physical harm to P
(2) D’s negligence results in P’s severe emotional distress
(3) P exhibits some physical manifestation attributable to her emotional distress
—> E.g., heart attack, miscarriage
> Non-physical symptoms like depression or nightmares are insufficient
—> Symptoms of the physical manifestation can be instantaneous or appear days later
Bystander claims - bystanders may be liable to recover for emotional distress resulting from D’s negligence
