Torts Flashcards
Negligence
To establish a prima facie case for negligence, plaintiff must show the existence of a legal duty owed by the defendant, breach of that duty, actual and proximate cause, and damages.
Duty
The defendant owes a duty of care to act as a reasonably prudent person to prevent harm to foreseeable plaintiffs within the zone of danger. This is an objective standard.
Standard of Care:
Children
Children are held to the standard of care of a reasonably prudent child of similar age, experience, and intelligence under the circumstances. A child engaged in adult activity will be held to the reasonably prudent person standard.
Unknown Trespassers
A landowner owes no duty to unknown trespassers. An unknown trespasser enters the land without the owner’s consent and is not expected by the landowner.
Known Trespassers
A landowner owes a duty to known trespassers to warn or make safe any highly dangerous artificial conditions that are known to the landowner and concealed. A known trespasser enters the land without consent but may be expected by the landowner.
Licensees
A landowner owes a duty to licensees to warn of or make safe hazardous conditions that are concealed and known to the landowner in advance. A licensee enters property lawfully for their own benefit.
Invitees
A landowner owes a duty to invitees to reasonably inspect the property for hazardous conditions that are concealed and known to the landowner. If discovered, landowner has a duty to make conditions reasonably safe. An invitee is a person who is invited on the property for the landowner’s benefit or a mutual benefit.
Negligence Per Se
When a criminal statute imposes a specific duty upon any person, a violation will constitute negligence per se if the plaintiff is in the class of people meant to be protected and suffers the type of harm that the statute was designed to protect against.
Negligence Per Se
Exception
A violation of a statute may establish negligence but not a duty of care if compliance with the statute would have been dangerous or impossible under the circumstances.
Res Ipsa Loquitur
Res ipsa loquitur allows the jury to infer negligence if the accident would not normally occur unless someone was negligent and the negligence is attributable to defendant because there was exclusive control over the instrument causing harm.
Eggshell Skull Rule
Under the eggshell skull rule, the defendant is liable to the plaintiff for all harm suffered even if the plaintiff suffered from an aggravation of a pre-existing condition.
Near Miss NIED
Plaintiff can recover for NIED if defendant negligently caused a threat of physical impact, plaintiff was within the zone of danger, and the threat of physical impact caused emotional distress.
Bystander NIED
Plaintiff can recover for NIED if defendant negligently inflicted bodily injury to another, bystander is closely related to the injured party, bystander was present at the scene and physically observed the injury.
Actual Causation
To prove actual causation, plaintiff must show that the injury would not have occurred but for the defendant’s breach.
Proximate Causation
To prove proximate cause, the plaintiff must show that the injury suffered was a foreseeable cause of the defendant’s conduct. Intervening causes are always foreseeable, but not superseding causes that break the chain of causal connection.
Pure Comparative Negligence
Under pure comparative negligence, the plaintiff’s recovery is limited by the percentage of fault the jury attributes to the plaintiff’s own negligence.
Modified Comparative Negligence
Under modified comparative negligence, the plaintiff’s recovery is limited by the percentage of fault the jury attributes to the plaintiff’s own negligence. If plaintiff is more at fault, recovery is barred.
Contributory Negligence
Under the CL, a plaintiff is barred from recovery if plaintiff contributed to the injuries in any degree. However, recovery may be allowed if defendant was engaged in willful misconduct or had the last clear chance to avoid injury to plaintiff.
Battery
To establish a prima facie case of battery, plaintiff must prove defendant acted with intent to bring about harmful or offensive contact to plaintiff’s person that caused such result.
False Imprisonment
To establish prima facie case for false imprisonment, plaintiff must prove that defendant acted with intent to confine or restrain plaintiff to a bounded area and caused such result.
Trespass to Land
To establish a prima facie case for trespass to land, plaintiff must prove defendant acted with intent to physically invade the plaintiff’s real property and caused such result. The invasion can be done physically or by propelling objects. The intent must be to physically invade, not required that defendant intend to trespass.
Consent
A plaintiff’s consent is a defense to all intentional torts provided that plaintiff had legal capacity to consent and defendant’s conduct was within the scope of plaintiff’s consent.
Respondeat Superior
Under the doctrine of respondeat superior, an employer will be liable for negligent acts committed by an employee if an employer-employee relationship existed and the conduct was within the scope of employment.
Independent Contractors
An employer will be liable for intentional torts committed by independent contractors if it is inherently dangerous activity, nondelegable duties have been delegated, or employer negligently hired an incompetent independent contractor.
Indemnification
Indemnification allows a passive tortfeasor who was forced to pay damages to recover complete reimbursement from an active tortfeasor.
Defamation
To make out a case for defamation, plaintiff must show defendant made a defamatory statement that specifically identifies the plaintiff; statement was published to a third-party; fault on the part of the defendant; falsity of the defamatory statement; and
damage to the plaintiff’s reputation.
Abnormally Dangerous Activities
A defendant is strictly liable for abnormally dangerous activities if it creates a foreseeable risk of serious harm and the activity is not a matter of common usage in the community.
Strict Products Liability
A strict products liability claim requires a showing that defendant is a commercial supplier; the product was defective; the defect existed while in defendant’s control and has not been substantially altered; and the plaintiff’s use of the product was foreseeable. Plaintiff must also prove causation and damages.
Manufacturing Defect
A manufacturing defect results when the manufacturer deviated from its intended design and failed to conform to their own design.
Consumer Expectation Test
Under the consumer expectation test, plaintiff must show that the product is less safe than the ordinary customer would expect.
Risk-Utility Test
Under the risk-utility test, plaintiff must show that the risks associated with the product’s design outweigh the benefits; and there is a reasonable alternative design available that would not seriously impact the utility or price.
Information Defects
A failure to warn defect requires plaintiff to show the manufacturer failed to give adequate warnings or instructions as to the risk; the risks were not obvious to an ordinary user; and the manufacturer was aware of such risks.
