TORTS Flashcards
What are the components of Negligence?
plaintiff must prove duty, breach, causation, and harm to make a claim for negligence.
What is the general standard of care for negligence?
The reasonably prudent person standard applies.
What are some exceptions for the general standard of care?
Children: Use a subjective standard for children. Look at the age, intelligence, and experience of the child. An exception exists if the child was engaged in an adult
activity. If the child was engaged in an adult activity, use the reasonably prudent person standard. Tip: examples of an “adult activity” include driving a car or
boat or shooting a gun.
Physical characteristics: take into account if the defendant is physically impaired.
Professionals: take into account a defendant’s superior knowledge.
What is Statute negligence-per se?
If a defendant violates a statute and the plaintiff was in the class of people that the statute was trying to protect and the plaintiff received the injury the statute was trying to prevent, duty and breach are established. Tip: the plaintiff still must prove causation and harm.
What does custom do for duty of care?
Custom generally is evidence of duty of care. In professional malpractice cases, it is conclusive evidence.
What is the duty to control third parties?
Generally, there is not a duty to control the conduct of third parties. However, one has a duty to act reasonably to control a third party if one has a special relationship with the third party (e.g., an owner and the occupiers of his land, a prison and its prisoners, or a mental institution and its patients).
Duty of care to undiscovered trespasser?
((a person the premises possessor does not or should not know of): No duty of care is owed. However, the premises possessor cannot act wantonly or willfully.
Duty of care to discovered trespassers?
(a person the premises possessor knows or should know is trespassing): The premises possessor must warn of or make safe unreasonably dangerous artificial
conditions that it knows of.
Duty of care to a licensee?
Licensee (social guest): the premises possessor must warn of or make safe all concealed dangers that it knows of.
Duty of care to invitee?
Invitee (one that enters a public place or business): the premises possessor must warn of or make safe all dangers that it knows or should know of. Tip: this is the only case where a
duty to inspect is imposed on the premises possessor.
Breech?
A plaintiff must show that the defendant breached his duty of care
Res Ipsa Loquitur?
When the circumstances surrounding the injury are unclear, if a plaintiff can show that the injury likely was the result of negligence and that it likely was the defendant that was negligent, the plaintiff has made a case for breach.
Tip: If the plaintiff can show res ipsa loquitur, it means that the case should go to trial and no directed verdict should be entered for the defendant. It does not necessarily
mean that the plaintiff wins his case.
Two types of causation?
Actual and Proximate
Actual Cause?
there must be a factual connection between the breach and the injury suffered.
Proximate cause?
the harm must be a foreseeable result of the breach.
Examples of harm that is considered foreseeable: (1) medical malpractice that occurs after an
accident, (2) harm that occurs during rescue efforts to protect life and property endangered
by defendant’s negligence, and (3) a disease or subsequent accident that occurs after an accident.
