Torts 18-37 Flashcards
To Whom a Duty is Owed
Andrews View
vs.
Cardozo View
Andrews: A duty of care is owed to ALL foreseeable plaintiffs.
Cardozo: A duty of care is only owed to foreseeable plaintiffs who are within the zone of danger.
Priority: HIGH
What are the elements for a prima facie case of Negligence?
A duty owed to the plaintiff by the defendant;
A breach of that duty;
(the breach was the actual and proximate cause of the plaintiff’s injuries); AND
Damages.
Priority: HIGH
When will an Affirmative Duty to act arise?
If:
There is a pre-existing relationship between the parties;
The defendant put the plaintiff in peril;
The defendant has undertaken to render aid or rescue the plaintiff; OR
A duty is imposed by law.
Priority: Medium
When is a Rescuer liable for injuries caused to another person?
If they fail to exercise reasonable care, AND:
The failure increased the risk of harm; OR
The harm is suffered because of reliance on the person providing the aid.
**A rescuer is liable if the aid is discontinued and the person is left in a worse position.
Priority: N/A
What is the Reasonable Person Standard?
Every person owes a duty to act as a reasonable prudent person would act under similar circumstances.
(A reasonable person takes appropriate measures to avoid foreseeable risks.)
Priority: HIGH
What is the Standard of Care for Children?
They are held to a standard of care a hypothetical child of similar age, experience, and intelligence acting under similar circumstances.
*If the child is engaged in an adult activity, they have the duty to act as a reasonable ADULT would act under the circumstances.
Priority: Medium
What is the Standard of Care for Medical Doctors?
Held to the degree of care and skill of the average qualified practitioner.
Courts will analyze under National Standard rather than local/community standards.
They have a duty to obtain informed consentbefore treatment and disclose risks a reasonable patient would want to know.
Priority: Medium
What is the Standard of Care for Professionals?
A professional owes a duty to act with the knowledge and skill as an average member of that profession practicing in a similar community.
*A specialist is held to the care and skill of an average member of the profession practicing the specialty.
Priority: Low
What is the Standard of Care for Landowners?
They have to exercise reasonable care to ALL entrants upon their land, and take appropriate measures to avoid foreseeable risks.
*Some states determine the duty of care required based on the type of entrant (trespasser, licensee, invitee).
Priority: Medium
Undiscovered Trespasser vs. Anticipated Trespasser
Undiscovered Trespasser(one who enters the land without permission): NO duty is owed by the landowner.
Anticipated Trespasser(enters without permission but may be expected): The landowner must use reasonable care in operations on the property AND warn of highly dangerous artificial conditions that they know of.
Priority: Medium
Licensee vs. Invitee
Licensee (invited as social guests): Landowner must exercise reasonable care AND warn of (make safe) dangerous conditions the owner knows of but not apparent to the guest.
Invitee (invited on the property for business): Landowner owes all the duties he would to a Licensee, PLUS the duty to make reasonable inspections of the property to find/make safe non-obvious conditions.
Priority: Medium
What is the Attractive Nuisance Doctrine?
For child trespassers, landowners must make the premises reasonably safe or warn of hidden dangers on their land.
Landowners are held liable for harm if:
They know the condition is likely to cause death;
They know that children frequent the area;
That children are unlikely to discover the condition;
The risk of harm outweighs the expense of repair; AND
They fail to exercise reasonable care in eliminating the danger.
Priority: Low
When does Negligence Per Seapply?
When:
The statute’s purpose is to prevent the type of harm that the plaintiff suffered; AND
The plaintiff is in the class of persons the statute seeks to protect.
*If applicable, the duty and breach elements are established.
Two Exceptions: (1) When compliance with the statute would be more dangerous; (2) Compliance is impossible.
Priority: HIGH
Under the Traditional Test for Res Ipsa Loquitur, what must the plaintiff show?
That the injury typically does not occur in the absence of negligence;
The instrumentality (thing/object) which caused the injury was in the defendant’s exclusive control; AND
That Plaintiff not cause or contribute to the injury.
*If applicable, the breach element is established.
Priority: Low
Under the Restatement (Second) Test for Res Ipsa Loquitur, what must the plaintiff show?
That the event typically does not occur in the absence of negligence;
Other responsible causes are sufficiently eliminated by the evidence (incl. plaintiff & third persons); AND
The negligence is within the scope of duty the defendant owed the plaintiff.
*If applicable, the breach element is established.
Priority: Low
