Torts Flashcards
Intentional Torts
Prima Facie Case
To etablish a prima facie case for any intentional tort, the Plaintiff must prove:
(1) An act by the Defendant;
(2) Intent by the Defendant; and
(3) Causation of the result to the Plaintiff from the Defendant’s act.
Intentional Torts
Hypersensitivity of the Plaintiff
Is ignored (disregarded).
NOTE: Always assume Plaintiff is a “reasonable person”.
Intentional Torts
No Incapacity Defenses
Ignore any lack of capacity defenses for intentional torts.
- Children
- Insane people
- Developmentally disabled people
- Intoxicated people (alcohol/drugs)
“Defendant is not liable because he lacked legal capacity” - WRONG
Intentional Torts
“Act by Defendant”
The act required is a volitional movement by defendant
Intentional Torts
“Intent”
The intent that is relevant for purposes of intentional torts is the intent (desire) to produce the legally forbidden consequences that are the basis of the tort.
* The Defendant does not need to intend the specific injury that results.
Intentional Torts
“Transferred Intent”
The transferred intent doctrine applies when the Defendant intends to commit a tort against one person but instead:
(1) Commits a different tort against that person;
(2) Commits the same tort as intended but against a different person; or
(3) Commits a different tort against a different person.
The intent to commit a certain tort against one person is transferred to the tort actually committed or to the person actually injured for purposes of establishing a prima facie case.
Intentional Torts
Limitations on Use of Transferred Intent
Transfered intent may be invoked only if both the tort intended and the tort that results are one of the following:
(1) Assault
(2) Battery
(3) False Imprisonment
(4) Trespass to land
(5) Trespass to chattels
Intentional Torts
“Causation”
The result must have been legally caused by the Defendant’s act or something set in motion by the defendant. Causation is satisfied if the defendant’s conduct was a substantial factor in bringing about the injury.
Most cases - causation will not be at issue because it’ll be obvious.
Intentional Torts
Battery
(1) Harmful or offensive contact;
(2) Contact must be with the Plaintiff’s person.
(3) Damages not required.
All intentional torts also requires proof of intent and **causation*
(1) An act by the defendant that brings about harmful or offensive contact to the plaintiff’s person;
(2) Intent by the defendant to bring about the harmful or offensive contact; and
(3) Causation.
Battery
“Harmful or offensive contact”
- Harmful if it causes actual injury, pain, or disfigurement.
- Offensive if it would be considered (unpermitted) offensive to a reasonable person.
Battery
“Contact must be with the Plaintiff’s person”
- Contact includes anything connected to the Plaintiff (Purse, clothing, item P is holding) - Extended Personality Rule.
- Contact can be direct (striking the plaintiff) or indirect (setting up a trap)
- Contact need not be instantaneous (putting poison in your coffee☠️☕️)
Battery
Damages Not Required
The Plaintiff can recover nominal damages even if actual damages aren’t proved. The Plaintiff may recover punitive damages for malicious conduct.
Intentional Torts
Assault
(1) Act by the Defendant creating a reasonable apprehension in the Plaintiff;
* Third Restatement - “Plaintiff must anticipate a battery”
(2) Of an immediate battery (harmful or offensive contact to the Plaintiff’s person)
(1) An act by defendant causing a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff’s person,
(2) Intent by defendant to bring about in plaintiff apprehension of that contact, and
(3) Causation.
Assault
“Reasonable Apprehension”
The apprehension (knowledge) of harmful or offensive contact must be reasonable. Courts generally will not protect a Plaintiff against exaggerated fears of contact.
BUT - Defendant will be liable if he knows of the Plaintiff’s unreasonable fear and uses it to put the plaintiff in apprehension.
Assault - “apprehension”
Fear Not Required
Fear is not required - don’t confuse apprehension w/ fear or intimidation.
Assault - “apprehension”
Knowledge of Act
Plaintiff must have been aware of the threat from the Defendant’s act, although the Plaintiff need not be aware of the Defendant’s identity.
Assault - “apprehension”
Apparent Ability Sufficient
If the Defendant has the apparent ability to commit a battery, this will be enough to cause a reasonable apprehension.
Assault - “apprehension”
Effect of Words
Words alone lack immediacy (no matter how violent). For the Defendant to be liable, the words must be coupled w/ conduct.
- “In 15 seconds I’m going to punch you in the face” - this is not assault because it’s words alone.
However, words can negate reasonable apprehension.
Example: Defendant shakes their fist but states they are not going to strike.
Example: Holding a gun and saying “you just wait until tomorrow” - not immediate battery. So, no assault.
Assault - “immediate battery”
Requirement of Immediacy
The Plaintiff must be apprehensive that they are about to become the victim of an immediate battery.
Assault
Damages Not Required
The Plaintiff can recover nominal damages even if actual damages are not proved. Malicious conduct may permit recovery of punitive damages.
Example: Scenario in which Defendant cannot actually commit the battery (he has an unloaded gun) but makes empty threats stating he’s going to shoot Plaintiff. Reasonable apprehension looks at Plaintiff’s knowledge - if P was aware the gun was unloaded, then they know there can’t be any battery so there’s not assault.
If P has concrete information that the gun is loaded (when it is not), then it would be a battery.
If P is completely unaware whether the gun is loaded or unloaded - court will look to the reasonable person standard - would a reasonable person apprehend/anticipate that a battery was going to happen - likely yes.
Intentional Torts
False Imprisonment
(1) An act or omission on the part of the Defendant that confines or restrains the Plaintiff;
(2) The Plaintiff must be confined to a bounded area;
(3) Damages not required.
False Imprisonment
Methods of Confinement or Restraint
Sufficient acts of restraint include:
(1) Physical barries;
(2) Physical force directed against the Plaintiff, immediate family, or personal property;
(3) Direct threats of force (if you leave the room I’m going to shoot you);
(4) Indirect or implied threats of force;
(5) Failure to release the Plaintiff when under a legal duty to do so (taxi driver refusing to let a customer out);
(6) Invalid use of legal authority (false arrest)
(7) Omission (failure to act) can be an act of restraint when there’s a preexisting duty.
Insufficient acts of restraints include:
(1) Moral pressure;
(2) Future threats.
NOTE: Hypersensitivity of Plaintiff is ignored. “If you leave this room in the next 30 minutes, I’ll be really sad” and you stay in the room because you’re a deeply considerate person. Not a valid false imprisonment claim
Omission Failure to Act Ex: Plaintiff w/ wheelchair flying from LAX > CHI and flightcrew is aware P is on the flight but once they land, flightcrew does nothing to help P off the plane. They don’t lock the door, but their failure to summon a wheelchair constitutes a valid false imprisonment claim.
False Imprisonment
Time of Confinement
It is irrelevant how short the period of confinement is.
False Imprisonment
Awareness of Confinement
The Plaintiff must know of the confinement or be harmed by it.
D locks P’s bedroom door while P is asleep, but unlocks the door before P wakes up. P cannot recover for false imprisonment.
False Imprisonment
“Bounded Area”
For an area to be “bounded,” freedom of movement must be limited in all directions. There must be no reasonable means of escape known to the Plaintiff. The bounded area can be vague - doesn’t have to be particularly defined
- Note: An area is not considered bounded if there’s a reasonable means of escape that the Plaintiff can reasonably discover.
False Imprisonment
Considered a Bounded Area even if there is a way out, but it is Unreasonable
(1) Dangerous;
(2) Disgusting;
(3) Humiliating;
(4) Hidden.
False Imprisonment
Damages Not Required
The Plaintiff can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if the Defendant acted maliciously.
Intentional Torts
Intentional Infliction of Emotional Distress (IIED)
(1) An act by the Defendant amounting to extreme and outrageous conduct; and
(2) The Plaintiff must suffer severe emotional distress.
(3) Actual damages required.
IIED
“Extreme and Outrageous Conduct”
Extreme and outrageous conduct if it exceeds all bounds of decency tolerated in a civilized society.
- Mere insults are not considered outrageous.
- But, insults + threats, then the conduct can become extreme and outrageous conduct.
IIED
Examples of Extreme and Outrageous Conduct
Conduct that is not normally outrageous may become so if it:
(1) Continous in nature;
* Debt collection by harassment - calling at 3am making threats to repossess the car, claiming they need the money by the next day. (Did it exceed all the bounds of decency? Debatable) But, if they called repeatedly, persistent then it becomes outrageous.
(2) Committed by a certain type of Defendant (common carriers or innkeepers); or
* Transportation companies and hotels are obligated to treat customers w/ courtesy and respect. So when they deliberately do something w/ the goal of causing distress it will be considered extreme & outrageous.
(3) Directed toward a certain type of Plaintiff in a fragile class (children, elderly, pregnant women).
* Targeting a 5 year old and deliberately trying to distress him with vulgar words. OUTRAGEOUS.
* Same goes for elderly.
* You must know the woman is pregnant to trigger this rule.
(4) Targeting known sensitivity is considered outrageous conduct.
* D having advanced knowledge of P’s peculiar sensitivity and triggering it. Ex. Coworker knowing about their colleagues phobia then purposely triggering it.
IIED
“Severe emotional distress”
Plaintiff has no obligation to prove the severe emotional distress in any particular way.
“Plaintiff was mildly annoyed by D’s conduct, so she sued for IIED”. No claim because the distress must be severe.
IIED
Requisite Intent
Unlike for other intentional torts, recklessness as to the effect of the Defendant’s conduct will satisfy the intent requirement.
IIED
Actual Damages Required
Actual damages (severe emotional distress), not nominal damages, are required. Proof of physical injury generally isn’t required. The more outrageous the conduct, the less proof of damages required.
IIED is the only intentional tort to the person that requires damages.
IIED
Causation in Bystander Cases
When the Defendant’s conduct is directed at a third person, and the Plaintiff suffers severe emotional distress because of it, the Plaintiff may recover by showing either the prima facie case elements of emotional distress; or that:
(1) they were present when the injury occurred;
(2) the distress resulted in bodily harm or the Plaintiff is a close relative of the third person; and
(3) the Defendant knew these facts.
IIED is a fallback tort position. If another alternative in the Q is a tort that will also allow the P to recover, it should be chosen over IIED.
Trespass to Land
(1) Physical invasion
(2) Of land
* By person or object that is tangible
* Awareness of boundary NOT required, but deliberate act is required
* Damage NOT required
* Air above/soil beneath to reasonable distance
* Claimant must be person with right to possession of property, does not necessarily need to be the owner
Trespass to Chattels
Intentional interference with Plaintiff’s personal property that warrants Defendant pay damages
* Interference = directly damaging OR dispossession
* Intent to trespass NOT required but intent to do the act of interference required
* Defendant’s mistaken beleif they own the chattel is NO defense
* Actual damages NOT required
Small harm (compared to Conversion)
Conversion
Intentional interference with Plaintiff’s personal property so serious that warrants Defendant pay property’s FULL value
* Act of conversion = Theft; Wrongful transfer; Wrongful detention; Substantially changing; Severely damaging; Misusing chattel
* Intent to do the act of interference required
* Defendant’s mistaken beleif they own the chattel is NO defense
* Only tangible personal property and intangibles that have been reduced to physical form (promissory note) are subject to conversion
* Plaintiff may recover damages (FMV at time of conversion) or possession (Replevin)
Big harm (Compared to trespass to chattels)
Defense to Intentional Torts
Consent
- Defense to all intentional torts
- Plaintiff must have legal capacity: not drunk, disabled, children
- Person with limited capacity can consent but only to things within scope of their understanding
- Express Consent = Words giving permission (Oral or Written) unless obtained by Fraud, Duress, or if Mistake if defendant knew of and took advantage of the mistake
- Implied Consent = A reasonable person would infer from custom and usuage (Hockey) OR body language consent (Private setting on a date)
- Scope of Consent = exceeding scope results in liability (Doctor gives you a nose job when you said “Yes” to getting only a knee surgery)
Defense to Intentional Torts
Protective Privileges (3 Types & Requirements)
Types:
* Self-Defense
* Defense of Others
* Defense of Property
Requirements:
(1) Threat from Plaintiff
(2) Defendant must respond in heat of the moment, i.e., while threat is in progress or imminent (Not too soon/late)
(3) Defendant must have reasonable belief the threat is genuine
(4) Amount of force when the preconditions are met, is only the force necessary to the circumstances
- 🔥 with 🔥 not 💣
- 👋 with 👋
- 🔪 with 🔫
- Majority: No duty to retreat
- No use of deadly force to protect property🏠
- Presumption that home intruder poses a deadly threat unless visibily not deadly threat
- Reentry onto land: Common law = one could use force to reenter land only when an intruder came into possession tortiously (trespass). Modern law = ejectment for recovering possession of real property. Self-help not allowed.
Defense of Property
Shopkeeper’s Privilege
- Allows a merchant or any store owner to detain a customer if owner has a reasonble belief customer has shoplifted property
- If detention is limited to a reasonable amount of time, manner, and suspicion, NO liability for false imprisonment even if customer is innocent
Defense to Only Property Torts!
Necessity Defenses (2 Types)
- Only apply to (1) Trespass to land; (2) Trespass to chattel; (3) Conversion
-
Types:
(1) Public Necessity: Emergency situation and Defendant commits one of the property torts during the emergency to protect the community as a whole; Absolute defense!
(2) Private Necessity: Defendant acts in emergency to protect own interest. Action was to prevent serious harm to a limited number of people. - Actor must pay compensatory damages for any injury they cause unless the act was to benefit the property owner
- NOT liable for nominal/punitive damages because Defendant had a privilege to enter
- Can remain as long as emergency continues
- Limited or qualified defense!
This privilege trumps a property owner’s right to defend his property
(4) Traditional Elements
Neglience
(1) A duty on the part of the Defendant to conform to a specific standard of conduct for protection of the Plaintiff against unreasonable risk of injury;
(2) A breach of that duty by the Defendant
(3) The breach is the actual and proximate cause of the Plaintiff’s injury;
(4) Damages.
Duty - Questions of law
Breach - Predominately about facts
Causation - Logic and policy
Damages - Facts and law
Negligence - Duty
Duty of Care
A duty of care is owed to all foreseeable 👀Plaintiffs. If the Defendant’s conduct creates an unreasonable risk of injury to persons in the position of the Plaintiff, the general duty of care extends from the Defendant to the Plaintiff.
The extent of the duty is determined by the applicable standard of care.
When confronted w/ a negligence questions, you should ask:
(1) To whom do you owe a duty?
(2) What is the applicable standard of care (risk reduction)?
Duty is a legally imposed obligation to take risk reducing precautions for benefit of others.
Negligence - Duty
To whom do you owe a duty?
Only to foreseeable victims within the “zone of danger”.
Note: Look to the distance of where the victim was initially - were they in the zone of danger?
You do not owe a duty to unforeseeable victims. Unforseeable victims will always lose negligence claims.
Negligence - Duty
Rescuers are Foreseeable
A rescuer is a foreseeable Plaintiff when the Defendant negligently put themselves or a third person in peril (danger invites rescue).🏃⛑️
Note: Rescuers do not have to be in the zone of danger because danger invites rescue - once the catastrophe occurs rescuers will go into the zone to help.
Not firefighters or police officers
Negligence - Duty
Firefighter’s Rule
Firefighters 🚒 and police officers👮 are barred by the “firefighter’s rule” from recovering for injuries caused by the inherent risks of their jobs - even if the risk was created by the negligence of the property possessor.
Negligence - Duty
Intended Beneficiaries of Economic Transactions
A third party for whose economic benefit a legal or business transaction was made (i.e beneficiary of a will) may be a foreseeable Plaintiff.
Negligence - Duty
What is the Applicable Standard of Care?
How much risk reduction is required?
- All persons owe a duty to behave with the same care as a hypothetical reasonably prudent person acting under similar circumstances.
- The reasonably prudent person standard is an objective standard, measured against what the average person would do.
- A defendant’s mental deficiencies and inexperiences are not taken into account. (low intelligence is no excuse).
- Someone who is developmentally disabled will be held to the standard of a reasonably prudent person.
- Intoxication/on drugs not an excuse.
- Uniformed people not an excuse.
- Uneducated people not an excuse.
- Amature, clumsy not an excuse.
- EVERYONE NEEDS TO BEHAVE LIKE A REASONABLY PRUDENT PERSON (RPP)
Negligence - Duty
Exception for Superior Skill or Knowledge
While the reasonably prudent person standard sets a minimum level of care, a Defendant who has knowledge or experience superior to that of an average person is required to exercise that superior skill or knowledge.
The Defendant will be measured against the hypothetical reasonably prudent person with same superior skill or knowledge.
Ex. Professional race car must drive his personal car like a reasonably prudent person with the added skill and knowledge of a professional race car driver - so if his car goes into a skid he must use everything he knows about controlling a vehicle in a skid.
Negligence - Duty
Exception for Physical Characteristics Where Relevant
The reasonably prudent person is considered to have the same physical characteristics as the Defendant if those physical characteristics are relevant to the claim.
NOTE: Physical characteristics are usually irrelevant unless it is relevant in the problem! All should act like a reasonably prudent person.
Example - If the Defendant is blind, and the characteristic is relevant to the claim then the standard of care becomes a reasonably prudent person who cannot see.
Example - If the Defendant is 6’8 and height is relevant in the problem, then the standard of care becomes a reasonably prudent person who is 6’8.
Negligence - Special Standard of Care
Children
A child under five years old is usually without the capacity to be negligent (no standard of care)
Age 5-18: Children are held to the standard of a hypothetical child of like age, experience, and intelligence acting under similar circumstances. This is a subjective test. Pro-defendant standard of care. (So every child is going to have a different standard of care)
* Exception: Children engaged in potentially dangerous adult activities may be required to confrom to an “adult” standard of care - Reasonably prudent person.
—- (“Adult activity” - Operating a motorized vehicle - car/motorcycle; includes farm equipment - tractor; jet skis; snowmobiles)
Negligence - Special Standard of Care
Professional
Malpractice Claims
A professional is required to possess the knowledge and skill of an average member (conform to their colleagues) of the profession or occupation in good standing. Empirical standard (research/fact based)
NOTE: For malpractice claims an expert witness is often used to educate the jury on the professional custom.
* For expert witnesses, most courts apply a national standard of care - it’s assumed the standard of care is uniform. –Geographically the expert witness can be from anywhere, but they have to come from the same specialty.
Custom of the profession sets the standard of care
Professionals must provide the same care as an average member of the profession providing similar professional services.
Negligence - Special Standard of Care for Professionals
Duty to Disclose Risks of Treatment
A doctor has a duty to disclose the risks of treatment to enable a patient to given an informed consent. A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk.
Malpractice Claims
Negligence - Special Standard of Care
Possessors of Land
Premises Liability Claims
Under the traditional rule followed in many states, the duty owed a Plaintiff on the premises for dangerous conditions on the land depends on the Plaintiff’s status as:
(1) Unknown trespasser;
(2) Known trespasser;
(3) Licensee; or
(4) Invitee.
Note: Possessor is not always the owner.
Note: If Plaintiff is injured from activities conducted on the land, the special rules for land does not apply. Only the ordinary prudent person standard of care would apply.
Ex. Plaintiff being a guest in someone’s home and getting burned by hot tea - this is not a dangerous condition on the land, so just the RPP standard of care would apply.
Negligence - Special Standard of Care Owed by Possessors or Land
Unknown Trespassers
Premises Liability Claims
No duty is owed to an undiscovered trespasser.
Plaintiff came onto the land without the possesor’s permission and possesor was unaware the trespasser was on their land - no duty!!
Negligence - Special Standard of Care Owed by Possessors or Land
Known Trespasser
Premises Liability Claims
As to discovered or anticipated trespassers, the land possessor must warn of or make safe any conditions that are:
H A C K
(1) Highly dangerous (involving risk of death or serious bodily harm);
(2) Artificial condition (man-made);
(3) Concealed (must be hidden); AND
(4) Known to the land possessor in advance.
Possessor has a duty only if all four conditions are present.
Possessor only has a duty for known, man-made death traps!
If there is a pattern of trespassing in the past - then there’s anticipated trespassing. (i.e. If people frequently cut through your backyard)
Negligence - Special Standard of Care Owed by Possessors or Land
Licensee
Premises Liability Claims
A licensee is one who enters land with permission for their own purpose or business, but without financial benefit to possessor. The land possessor has a duty to warn of or make safe hazardous conditions that are:
(1) Concealed; and
(2) Known to the land possessor in advance.
Land possessor must exercise reasonable care in the conduct of “active operations” on the property. The possessor has no duty to inspect or repair.
Typical Licensees:
* Social guests
* Uninvited indviduals walking up to your front door have implied consent by the custom of the community. Unless there are signs “no trespassing/soliciting” or the gates are locked.
Possessors must protect licensees from all known traps.
Negligence - Special Standard of Care Owed by Possessors or Land
Invitees
Premises Liability Claims
Invitees enter onto the land in response to an invitation by the possessor of the land for financial benefit of the possessor (purpose connected w/ the business of the land possessor or enter as members of the public for a purpose for which the land is held open to the public). An invitee will lose invitee status if they exceed the scope of the invitation (entering “employees only” room)
The possessor owes a duty to invitees regarding hazardous conditions that are:
(1) Concealed; and
(2) Known by possessor or could have discovered through reasonable inspection
* Reasonably inspections take place at reasonable intervals of time and are reasonably thorough.
Typical Invitees:
* Includes when open to public at large.
* Customers of a business
* Going to the airport to pick up your friend (you’ll be considered an invitee even if you didn’t spend any money because airport is open to the public)
Possessor must protect all reasonably knowable traps on the land.
Ex. If a store has a reasonably prudent person inspect their property every 3-months, and a hazardous condition comes about between the intervals and possessor was unaware - there will be no liability for it because there was reasonable inspection. Reasonable interval of time will depend on what the facility is; custom of other similar property possessors.
Negligence - Special Standard of Care Owed by Possessors or Land
How To Satisfy Premises Liability Duty
Premises Liability Claims
Possessor can satisfy their premises liability duty of care by the following measures:
(1) Eliminate the hazardous condition
- Repair;
- Replace; or
- Remove.
(2) Warning about the hazardous condition
- Warning must be sufficiently complete so that it communicates the nature of the danger to the person who receives the warning, but it must be a form of warning that will keep the danger present in their mind - Like a warning sign - likely the correct answer.
Negligence - Special Standard of Care Owed by Possessors or Land
Traspassing Children
Attractive Nuisance Doctrine
Most courts impose on a landowner the duty to exercise reasonably prudent care under circumstances to protect children from artificial hazards on the land.
To establish the doctrine’s applicability, the Plaintiff must show:
(1) Dangerous condition on the land that the owner is or should be aware of;
(2) The owner knows or should know that children might trespass on the land;
(3) The condition is likely to cause injury (it is dangerous because of the child’s inability to appreciate the risk);
(4) The expense of remedying the situation is slight compared w/ the magnitude of risk.
If there’s something attractive on your land, you must child proof.
Ex. If it’s unlikely that a child would trespass onto the land - possessor has no duty to eliminate conditions that is likely to cause injury. And if a child happens to come onto the land - possessor has no liability because they acted reasonably under the said circumstances.
Ex. If there’s something on the land that would draw the children - suburban neighborhood with a swingset, and you live across the street from an elementary school. Would you anticipate there’ll be children trespassing? YES. Then, that means as a reasonable prudent person you must exercise reasonable care that the swingset itself is safe and any other hazards on your property has been eliminated/made safe.
Negligence - Special Standard of Care Owed by Possessors or Land
Duty Owed to Users of Recreational Land
A landowner who permits the general public to use their land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.
Negligence - Special Standard of Care Owed by Possessors or Land
Duty of Possessor to Those Off Premises
Generally there is no duty to protect someone off the premises from natural conditions on the premises however, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land.
* Also, one must carry on activities on the premsies so as to avoid unreasonable risk of harm to others off the premises.
Negligence - Special Standard of Care Owed by Possessors or Land
Duties of Lessor and Lessee of Realty
The lessee has a generaly duty to maintain the premises. The lessor must warn of existing defects of which they are aware or have reason to know, and which they know the lessee is not likely to discover on a reasonable inspection. If the lessor covenants to repair, they are liable for unreasoanbly dangerous conditions. If the lessor volunteers to repair and does so negligently, they are liable.
Negligence - Special Standard of Care Owed by Possessors or Land
Duties of Vendor of Realty
A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which the vendor knows the vendee is not likely to discover on a reasonable inspection.
Negligence Per Se - Statutory Standards of Care
Negligence Per Se - Statutory Standards of Care
Plaintiff must prove a clearly stated specific duty imposed by a statute providing for criminal penalties may replace the more generaly common law duty of due care if:
(1) Plaintiff is within the protected class;
(2) Statute was designed to prevent the type of harm suffered by the Plaintiff.
Class of person/class of risk
Protected class of persons can be: Children, customers, patients, pedestrians, visitors, occupants of the building, etc. (must be a subset).
Negligence Per Se - Statutory Standards of Care
Establishing Negligence Per Se
(1) Legal - Plaintiff must establish the statute is legally appropriate;and
(2) Factual - Plaintiff must show Defendant violated the statutory command.
Negligence Per Se - Statutory Standards of Care
Exceptions to Statutory Standard of Care
Violation of some statutes may be excused where compliance would cause more danger than violation or where compliance would be impossible.
Ex. Dave driving on the road swerves into the other lane to avoid hitting a child who runs into the road. Dave hits Pete who was travelling on the opposite road. Pete brings a negligence per se claim stating the statute reflects drivers may not cross the yellow line. Court will not apply the statute even if Pete meets the two prong standard of care test because here obeying the statute - he would have hit the child.
Ex. Dave has a heartattack while driving his vehicle and he runs a red light hitting Pete a pedestrian. Pete wants to use the red light statute as a standard of care. The exception applies - compliance was impossible.
Special Negligence Duties
Affirmative Duties to Act
Generally, one does not have a legal duty to act. There is no duty to rescue.
* If one chooses to act, they must do so as a reasonably purdent person under the set circumstnaces.
Affirmative Duties to Act Exception
Special Relationship Between Parties
A special relationship between the parties (parent-child) may create a duty to act. Similarly, common carriers-guests, innkeepers-guests, shopkeepers-customers and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons.
- Places of public accomodation have a duty to prevent injury to guests by third persons.
Mordern view: Expanded the concept of special relationship to any people who are not strangers. Mention this in the essay, but apply the traditional rule for MC.
Affirmative Duties to Act Exception
Peril Due to Own Conduct
One has a duty to assist someone they have negligently or innocently placed in peril.
Normally no duty to rescue if one did not cause the peril.
Affirmative Duties to Act Exception
Assumption of Duty by Acting
One may assume a duty to act by acting. Once the person undertakes to aid someone, they must do so with reasonable care.
* If the person who voluntarily and gratuitously rescues and does so in an unreasonable or negligent manner and causes harm, that person will be liable for his or her error.
Exception: Many states have enacted Good Samaritan statutes which insulate negligent rescuers from liability. The statute exempts doctors, nurses, etc., from liability for ordinary, but not gross, negligence.
* But, on the exam assume there is no Good Samaritan law, unless the call of the question explicitly states the statute applies.
Affirmative Duties to Act Exception
Duty to Prevent Harm from Third Persons
Generally, there is no duty to prevent a third person from injuring another.
* An affirmative duty may be imposed, however, if one has the actual ability and authority to control a person’s actions, and knows or should know the person is likely to commit acts that would require exercise of this control.
Affirmative Duties to Act Exception
If There’s an Affirmative Duties Exception, the Duty Owed Is:
Not duty to rescue, but duty to act reasonably under the circumstances.
Ex. Inkeepers-guest relationship - If the hotel is on fire, the hotel has a duty to call 911 or give the guests instruction. The hotel does not have a duty to go into the burning hotel room to rescue the guest.
Ex. If a child is drowning in a lake, and you are the cause, but you don’t know how to swim - there is no duty for you to risk your life by going into the lake to save the child. But you must seek help - call 911, throw a rope, etc. to act reasonably under the circumstances.
Standards of Conduct
Common Carriers and Innkeepers
Common carriers and innkeepers are held to a very high degree of care, meaning they are liable for slight negligence.
* The Plaintiff must be a passenger or guest.
Standards of Conduct
Automobile Driver to Guest
A guest in an automovile is owed a duty of ordinary care.
* In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.
Standards of Conduct
Bailment Duties
In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not title - Bailor loaning their car to the Bailee.
Duties owed by Bailee - Bailee’s standard of care depends on who benefits from the bailment: (1) Sole benefit of the bailor bailment, there is a low standard of care; (2) Sole benefit of the bailee bailment, there is a high standard of care; (3) Mutual benefit of bailment, there is ordinary standard of care.
Duties Owed by Bailor - (1) Sole benefit of the bailee bailment, the bailor must inform the bailee of known, dangerous defects in the chattel. (2) Bailment for hire, the bailor must inform the bailee of chattel defects of which they are or should be aware.
Standards of Conduct
Emergency Situations
A Defendant must act as a reasonably prudent person would under the same emergency conditions. The emergency is not to be considered, however, if it is of the Defendant’s own making.
Negligent Infliction of Emotional Distress
Negligent Infliction of Emotional Distress (Near Miss Cases)
Pure Emotional Claim
Defendant creates a **foreseeable risk of physical injury **to the Plaintiff. The Plaintiff usually must satisfy two requirements to prevail:
(1) Plaintiff must be within the “zone of danger”; and
* Plaintiff will be considered to be within the zone of danger of the Defendant’s negligent acts when the Plaintiff is sufficiently close to the Defendant such that they are subject to a high risk of a physical impact.
(2) Plaintiff must suffer physical symptoms from the distress.
* Most courts require that Plaintiff suffers subsequent physical symptoms from the distress.
In NIED, there is no physical injury but it’s a close call - near miss.
Plaintiff’s fear of almost getting injured.
Negligent Infliction of Emotional Distress
Bystander Case
A bystander outside the “zone of danger” of physical injury who sees the Defendant negligently injuring a third party can recover damages for emotional distress if:
(1) Plaintiff and the person injured by the Defendant are closely related; and
* Spouse, parent, minor child (strictly limited)
(2) Plaintiff was present at the scene of the injury and personally observed or perceived the event.
* Must have seen it in real-time - contemporaneous witness
Plaintiff’s grief/sadness witnessing their loved ones getting injured.
