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Bar Prep - MEE - DM > Torts > Flashcards

Torts Flashcards

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1
Q

Who is owed a duty?

A
  1. ) Foreseeable Plaintiffs
  2. ) Majority (cardozo) view: plaintiffs within the zone of foreseeable harm
  3. ) Minority (Andrews) view - anyone who is harmed.
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2
Q

Is that an Affirmative Duty to Act?

A

Generally, there is no affirmative duty to aid or rescue someone.

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3
Q

What if a person assumes the duty to act? (Assumption of Duty)

A

If someone starts to air or rescue, they must act with reasonable ordinary care not to increase the risk of harm.

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4
Q

What is a psychotherapists’ duty to warn?

A

If a patient makes credible threats of physical violence, the therapist is under a duty to warn the intended victim.

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5
Q

What is the normal standard of care?

A

To act as a reasonably prudent person under the circumstances.

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6
Q

When do you apply the normal standard of care?

A

Apply the general standard of care unless a special standard applies (landowner, physician, etc) or there is a statute (negligence per se).

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7
Q

What is the Modern Rule regarding the standard of care for possessors of land?

A

Landowner must exercise reasonable care under the circumstances to all land entrants, except trespassers.

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8
Q

What is the traditional approach regarding standard of care for possessors of land?

A

First, categorize the plaintiff as a trespasser, invitee, or licensee. Then analyze the standard of care owed to that person.

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9
Q

What is a trespasser, and what duty does a landowner owe them?

A
  1. ) on the land without consent or permission

2. ) Duty to refrain from willful, wanton, reckless, or intentional misconduct.

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10
Q

What is an invitee, and what duty does a landowner owe them?

A
  1. ) Invited as member of the public or a business visitor

2. ) Duty: to inspect and discover unreasonably dangerous conditions and protect the invitees from them.

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11
Q

What is a licensee, and what duty does a landowner owe them?

A
  1. ) Enters with express or implied permission for a specific purpose.
  2. ) Duty: to warn of concealed dangers that are known or should be obvious and use reasonable care in conducting activities.
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12
Q

Upon what conditions will a landowner be liable for an attractive nuisance that causes injury?

A
  1. ) artificial condition exists in a place where the owner knows or should know that children are likely to trespass.
  2. ) the condition imposes an unreasonable risk of serious bodily injury.
  3. ) The children cannot appreciate the danger due to their youth;
  4. ) The burden of eliminating the danger is slight compared with the risk of harm; AND
  5. ) the land possessor failed to exercise reasonable care to protect the children.
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13
Q

Concerning negligence liability between landlord and tenants, what duty does a landlord owe?

A

To protect from foreseeable attacks by third parties.

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14
Q

What are the duties of children in a negligence scenario?

A
  1. ) Duty to act as a reasonable child of the same age.

2. )

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15
Q

How does a industry custom and the standard of care work together?

A

Evidence of an industry or community custom is admissible as evidence of the relevant standard of care, but that evidence of custom is not conclusive.

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16
Q

What standard of care do Professionals have?

A

Duty to perform at the same level as another practitioner in the same community.

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17
Q

What standard of care do doctors have?

A

Duty to perform as an average doctor based on a national standard.

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18
Q

When does a breach occur?

A

When the defendant fails to meet the applicable standard of care.

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19
Q

What are the factors for determining breach under the cost-benefit analysis?

A
  1. ) The foreseeability of harm;
  2. ) The severity of harm, AND
  3. ) The burden on the defendant to prevent the harm.
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20
Q

When does Res Ipsa Loquitor arise?

A

Arises when there is no direct evidence of the defendant’s negligent conduct.

Allows the trier of fact to infer that there was negligence conduct.

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21
Q

What must a plaintiff prove for Res Ipsa Loquitor?

A
  1. ) The type of accident would not normally occur absent negligence
  2. ) The injury was caused by an agent or instrumentality within the exclusive control of the defendant, AND
  3. ) The injury was not due to the plaintiff’s actions.
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22
Q

When does Negligence Per Se arise?

A

when there is a statute that imposes a specific duty.

Plaintiff must be within the class of persons the statute is meant to protect

Plaintiff must suffer the type of harm the statute was meant to protect against

Defendant’s violation of the statute must be the proximate cause of plaintiff’s harm.

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23
Q

What is “Actual Causation?”

A

Plaintiff must show that but-for the defendant’s actions plaintiffs injury would not have occurred.

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24
Q

What is the Substantial Factor Rule?

A

Arises when there are multiple causes of the harm and each alone would have been a factual cause of the injury.

The conduct of each defendant is a cause in fact if it was a substantial cause of the injury.

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25
Q

What is Alternative Causation?

A

Arises when the plaintiff’s harm is caused by multiple defendants (2-5) and each defendant’s conduct was individually tortious.

The burden of proof can shift to the defendants to prove that each was not the cause in fact.

26
Q

What is Proximate Cause?

A

Plaintiff must show that the injury was a foreseeable result of the defendants conduct.

27
Q

What is an intervening proximate cause?

A

An outside force that contributes to the plaintiffs harm after the defendant’s act.

If foreseeable, will not cut off defendant’s liability.

If unforeseeable, it is a superseding cause and cuts off the defendant’s liability.

28
Q

What must a plaintiff prove regarding damages?

A

Plaintiff must prove actual injury, not just economic loss.

29
Q

What is the eggshell skull rule?

A

Defendant is liable for the full extent of plaintiff’s injuries, even if the extent of the harm was not foreseeable.

30
Q

Where must the plaintiff have been to claim Negligent Infliction of Emotional Distress?

A

Within the zone of danger of the threatened physical impact.

Must have some physical manifestation of emotional distress.

31
Q

Can a bystander claim Negligent Infliction of Emotional Distress?

A

A by stander who is outside the zone of danger can recover IF the plaintiff

  1. ) is closely related to a person harmed by the defendant’s negligence
  2. ) Was present at the scene of the injury; and
  3. ) Personally observed the injury.
32
Q

What are the 3 Defenses to Negligence?

A
  1. ) Contributory Negligence (old rule): if the plaintiff’s negligence contributed to his harm, it was a complete bar to recovery.
  2. ) Comparative Fault (Modern Rule): Pure comparative negligence (minotiry Rule) a plaintiffs recovery is reduced by the amount of the plaintiff’s fault, regardless of how at fault the plaintiff is.
33
Q

What is modified or partial comparative negligence (majority rule): plaintiff’s recover is reduced by the amount of the plaintiff’s fault, but the plaintiff cannot recover if he is more at fault than the defendant.

A

plaintiff’s recover is reduced by the amount of the plaintiff’s fault, but the plaintiff cannot recover if he is more at fault than the defendant.

34
Q

What is Assumption of Risk?

A

Plaintifkf’s recovery may be barred or reduced if she is voluntarily and knowing assumed the risk of the behavior.

35
Q

What is an Abnormally Dangerous Activity?

A

A defendant engaged in an abnormally dangerous activity is subject to strict liability for personal injuries and property damages caused by the activity

A high risk of harm that is not Commonly found in the community, which has a risk that cannot be elimated with Due Care.

Explosive, fumigation, disposing of hazardous waste, storing chemicals.

36
Q

What types of causation are required for a claim of an Abnormally Dangerous Activity?

A 
Actual Cause (but for defendant’s act) 
Proximate cause (foreseeable)
37
Q

How does common law deal with Wild Animals?

A

Strict liability applies to wild animals

Also applies to domestic animals if the owner knows or has reason to know if a dangerous propensity.

Plaintiff must also show causation and damages.

38
Q

What is strict products liability?

A

Defendant is in the business of selling commercial product may be strictly liable for a defective product causing foreseeable injuries to a plaintiff.

Absolute Duty - manufacturer, distributor, and retailer.

39
Q

When is a product defective?

A

A product is defective when, at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or inadequate instructions or warnings (i.e., failure to warn).

40
Q

What are the two types of defects?

A
  1. ) Manufacturing Defect

2. ) Design Defect

41
Q

What is a manufacturing defect?

A
  1. ) A deviation from what the manufacturer intended the product to be that causes harm to the plaintiff ‘
  2. ) The test is whether the product conforms to the defendant’s own specifications
42
Q

What is a design defect?

A

Consumer-expectation test—plaintiff must prove that the product is dangerous beyond the expectation of an ordinary consumer

Risk-utility test—plaintiff must prove that a reasonable alternative design that is economically feasible was available to defendant, and failure to use that design rendered the product unreasonably dangerous.

43
Q

What do you look for with defects?

A

Look for facts in the exam question about the availability of alternative designs and the cost of these alternative designs.

44
Q

What is a failure to warn? Regarding products liability

A

Failure to Warn Exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings

45
Q

What do you look for in the facts regarding a failure to warn by the defendant?

A

That they warned about something, but the warning was insufficient to warn about the type of harm that actually occurred.

46
Q

What is required for actual causation regarding products liability?

A

The product must have been defective when it left defendant’s control and the defect was the actual cause of the harm.

47
Q

What is required for proximate causation regarding products liability?

A

The defect causing the plaintiff’s injuries occurred when the product was being used in an intended or reasonably foreseeable way.

48
Q

What types of injuries must occur to receive damages from product defects?

A

Plaintiff must suffer personal injury or property damages

49
Q

What are the defenses to product liability actions?

A

1.) Contributory fault: the plaintiffs contributory fault is generally not a defense to a strict products liability action

If the plaintiff knows of the defect and unreasonably uses the product anyway, contributory fault may be a defense to bar or reduce recovery.

50
Q

Is the analysis the same in a Negligent products liability as it is in a regular products liability?

A

YES.

51
Q

What is an express warranty? Regarding products liabilities.

A

A promise or guarantee made by the defendant about the product.

52
Q

What is the implied warranty of merchantability regarding products liability?

A

A product that is sold to impliedly warranted to be reasonably useful and safe for average use.

53
Q

What is the implied warranty of fitness for a particular purpose? Regarding products liability

A

If a seller knows or has reason to know of a particular purpose for which some item is being purchased by the buyer, the seller is guaranteeing that the item is fit for that particular purpose.

54
Q

When may a plaintiff bring an action for defamation?

A

If the defendant’s language is:

  1. ) of or concerning the plaintiff
  2. ) is published to a 3rd party who understands its defamatory nature; AND
  3. ) Damages the plaintiff’s reputation.
55
Q

When is language defamatory?

A

When the language diminishes the respect, esteem, or goodwill towards plaintiff.

56
Q

What kind of statement is libel?

A

Written statement, damages generally presumed

57
Q

What is slander?

A

Oral statements - damages are not presumed.

58
Q

What is slander per se?

A

Damages are presumed when statements involve professional reputation, disease, crimes of moral turpitude, or unchaste behavior.

59
Q

When do Constitutional Defamation requirements apply?

A
  1. ) The plaintiff is a public official, or public figure, OR
  2. ( The plaintiff is a private individual, but the statement involves a matter of public concern.
60
Q

What is an absolute defense to defamation?

A

Truth

61
Q

What is the First Constitutional Requirement?

A

Falsity.

Plaintiff must prove statement is FALSE, and

If plaintiff is a public official or figure, must also prove that the defendant acted with actual malice

62
Q

What is malice, concerning defamation?

A

defendant either had knowledge that the statement was false or acted with reckless disregard as to the truth or falsity of the statement

Bar Prep - MEE - DM (12 decks)

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