Torts Flashcards

Question

When is a duty of care owed

Answer 1

In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant’s failure to act as a reasonable person of ordinary prudence under the circumstances.

Answer 2

Generally, there is no duty to act affirmatively, even if the failure to act appears to be unreasonable. However, the special relationship between a psychotherapist and a patient can impose upon the therapist an affirmative duty to act to protect a third party. When a patient has made credible threats of physical violence against a third party, the psychotherapist has a duty to warn the intended victim. The threat must be a serious threat of physical violence against an ascertainable intended victim, determined by the objective standard of a reasonable psychotherapist in the same circumstance.

Answer 3

A defendant is presumed to have average mental abilities and the same knowledge as an average member of the community. A defendant with a mental or emotional disability is not immune from tort liability, and the defendant's own mental or emotional disability is not considered in determining whether his conduct is negligent. But physical disability yes

Answer 4

A defendant engaged in an abnormally dangerous activity may be held strictly liable for personal injuries and property damage caused by the activity, regardless of the precautions taken to prevent the harm. An abnormally dangerous activity is one that (i) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised; and (ii) is not commonly engaged in. Strict liability for an abnormally dangerous activity exists only if harm that actually occurs results from the risk that made the activity abnormally dangerous in the first place. As is the case with superseding causes in negligence, the defendant’s liability can be cut off by unforeseeable intervening causes.

Answer 5

The privilege of necessity is available to a person who enters or remains on the land of another to prevent serious harm, which typically is substantially more serious than the invasion or interference itself. Private necessity is a qualified privilege to protect an interest of the defendant or a limited number of other persons from serious harm when the interference is reasonably necessary to prevent such harm. Despite this privilege, the property owner is entitled to recover actual damages, but cannot recover nominal or punitive damages nor use force to eject the defendant.

Answer 6

when a defendant violates a criminal or regulatory statute that imposes a specific duty on the defendant, and the act proximately caused the kind of harm the statute was designed to prevent. Additionally, the plaintiff must be in the class of people intended to be protected by the statute. However, a defendant may be able to avoid liability under a negligence per se theory by proving that compliance with the statute or regulation would have involved a greater risk of physical harm to the defendant or others than noncompliance would have (e.g., it was an emergency).

Answer 7

Generally, the defendant is liable for harm caused by foreseeable intervening forces that occur between the time of the defendant’s act and the plaintiff’s injury. When an intervening force is unforeseeable, a defendant will still be liable for his acts (or omissions) if the result was nevertheless foreseeable. If both the intervening cause and the harm are unforeseeable, however, the intervening cause becomes a superseding cause, and the defendant’s liability is cut off by that superseding cause.

Answer 8

The commercial supplier of a component, such as sand used in manufacturing cement, is subject to liability if the component itself is defective, but not when the component is incorporated into a product that is defective for another reason. However, the commercial supplier of a component may be liable if that supplier substantially participates in the process of integrating the component into the design of the assembled product and that product is defective due to the integration.

Answer 9

Yes but not for libel

Answer 10

The traditional doctrine of transferred intent does not apply to intentional infliction of emotional distress when the defendant intended to commit a different intentional tort (such as a battery) against a different victim. However, transferred intent may apply to intentional infliction of emotional distress if, instead of harming the intended person, the defendant's extreme and outrageous conduct harms another.

Answer 11

In order for a private citizen to successfully maintain a public nuisance action, that person must suffer a special injury that is different in kind to that suffered by the general public. Does not need ownership interest. Private nuisance needs this

Answer 12

In order for the attractive nuisance doctrine to apply, the landowner must know or have reason to know that the artificial condition is located in a place that children are likely to trespass. does not require that the child be enticed onto the property by the presence of the condition

Answer 13

strict liability generally does not apply to injuries that do not result from the dangerous propensities of the animal.

Answer 14

When a criminal or regulatory statute (or an administrative regulation or municipal ordinance) imposes a penalty for violation of a specific duty, if the defendant violates the statute by failing to perform that duty, he is liable in negligence to anyone in the class of people intended to be protected by the statute for any harms of the type the statute was intended to protect against. This is known as negligence per se. Once negligence per se is established, in order for the defendant to be liable, the plaintiff must prove that his injuries were proximately caused by the defendant’s violation of the statute.

Answer 15

Need not all be joined to be sued

Answer 16

A plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action.

Answer 17

In a comparative negligence jurisdiction, assumption of the risk is not recognized as a separate defense—it has been merged into the comparative-fault analysis and merely reduces recovery.

Answer 18

A deceased person cannot legally be defamed. The estate of the deceased official cannot maintain an action for defamation because the defamatory statement was made after the official’s death.

Answer 19

However, a person who enters upon another's property or interferes with another's personal property due to private necessity must still pay for actual damages caused

Answer 20

The court may grant a directed verdict against a party in a negligence action if the court finds that there is insufficient evidence for a jury to reasonably find for that party.

Answer 21

the so-called “bulge provision,” a federal court has personal jurisdiction over a party who is served within a U.S. judicial district and not more than 100 miles from where the summons is issued, even if state law would otherwise not permit such service. This special rule applies to only two types of parties: a third-party defendant who is joined under Rule 14 and a required party who is joined under Rule 19.

Answer 22

Yes If the defendant negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer’s injuries.

Answer 23

Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient’s decision to consent to treatment. Failure to comply with this “informed consent” doctrine constitutes a breach of the physician’s duty owed to the patient and is actionable as medical malpractice (medical negligence).

Answer 24

Trespass to land occurs when the defendant’s intentional act causes a physical invasion of the land of another. The defendant need only have the intent to enter the land, not the intent to commit a wrongful trespass. Mistake of fact is not a defense because the defendant need not know that the land belongs to another.

Answer 25

A person who comes to the aid of another is generally a foreseeable plaintiff. If a defendant negligently puts the rescuer or himself in any danger, he is liable for the rescuer’s injuries. An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury arises from a risk inherent in the job (“firefighter’s rule”).

Answer 26

Yes Traditionally, a professional person has been expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community; now, the majority of jurisdictions hold physicians to a national standard of care. Here, even if the new test was not standard in the local community, the fact that the test has become standard nationally means that the physician fell below the national standard of care by failing to administer it.

Answer 27

the plaintiff could establish that all of the defendants had been negligent, in which case each one would have to exonerate himself. If the plaintiff’s harm was caused by one of a small number of defendants, each of whose conduct was tortious (negligent), and all of whom are present before the court, then the court may shift the burden of proof to each individual defendant to prove that his conduct was not the cause-in-fact of the plaintiff’s harm.

Answer 28

Just Compensation Although the taking is valid, Michelle must be paid just compensation. This is interpreted to mean fair market value (“FMV”), which is the reasonable value of the property at the time of the taking. FMV is measured in terms of the loss to the owner, not the benefit to the government, and is usually determined by looking at comparable sales in the neighborhood. Just Compensation Although the taking is valid, Michelle must be paid just compensation. This is interpreted to mean fair market value (“FMV”), which is the reasonable value of the property at the time of the taking. FMV is measured in terms of the loss to the owner, not the benefit to the government, and is usually determined by looking at comparable sales in the neighborhood.

Answer 29

However, federal common law requires that the claim-preclusive effect of a judgment by a federal court sitting in diversity must be governed by the law of claim preclusion of the federal court’s forum state, unless the state law is incompatible with federal interests.

Answer 30

Trespass to land occurs when the defendant's intentional act causes a physical invasion of the land of another. The defendant need only have the intent to enter the land, not the intent to commit a wrongful trespass. No proof of actual damages is required; nominal damages may be awarded. However, the privilege of necessity is available to a person who enters or remains on the land of another (or interferes with another's personal property) to prevent serious harm, which typically is substantially more serious than the invasion or interference itself. Private necessity is a qualified privilege to protect an interest of the defendant or a limited number of other persons from serious harm when the interference is reasonably necessary to prevent such harm. Despite this privilege, the property owner is entitled to recover actual damages, but cannot recover nominal or punitive damages nor use force to eject the defendant.

Answer 31

Trespass to land occurs when a defendant’s intentional conduct causes a physical invasion of the land of another. The defendant need not personally enter onto the plaintiff’s land; intentionally flooding the plaintiff’s land, throwing an object (e.g., a rock) onto it, or intentionally emitting particulates into the air over the land will each suffice. A trespass may be committed on, above, or below the surface of the plaintiff’s land.