Torts Flashcards
abnormally dangerous activities: Second Restatement
Determination of whether an activity is unduly dangerous and thus subject to strict scrutiny is generally governed by factors outlined in the Restatement of Torts.
Under the First Restatement, strict liability applied to an “ultra-hazardous” activity.
Under the Second and Third Restatements, strict liability applies to an abnormally dangerous activity. The Second Restatement lists six factors that are to be considered in determining whether an activity is abnormally dangerous:
* existence of a high degree of risk of some harm to the person, land, or chattels of others;
* likelihood that the harm that results from it will be great;
* inability to eliminate the risk by the exercise of reasonable care;
* extent to which the activity is not a matter of common usage;
* inappropriateness of the activity to the place where it is carried on; and,
* extent to which its value to the community is outweighed by its dangerous attributes.
Comments to the Restatement explain that several factors are ordinarily required for strict liability but it is not necessary for each of them to be present.
The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it,even though it is carried on with all reasonable care.
To be a matter of common usage, an activity must be carried on by the great mass of mankind or by many people in the community.
abnormally dangerous activity: Third Restatement
Under the Third Restatement, the strict liability determination is based on only two factors. An activity is abnormally dangerous if:
* the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and,
* the activity is not one of common usage.
Under the Third Restatement, activities can be in common use even if they are engaged in by only a limited number of actors.
abnormally dangerous activities: blasting
Courts in virtually all jurisdictions have held that this activity is subject to strict liability, citing its potential for extensive harm, the fact that it is not a matter of common usage, and the actors’ inability to eliminate the risk.
abnormally dangerous activities: fireworks
Courts are divided as to whether legal fireworks displays should be classified as abnormally dangerous and thus subject to strict liability.
Courts that have classified fireworks displays as abnormally dangerous have tended to focus on the fact that fireworks are much like blasting in that anytime a person ignites aerial shells or rockets with the intention of sending them aloft to explode in the presence of large crowds of people, a high risk of serious personal injury or property damage is created.
Courts that have declined to classify legal fireworks displays as abnromally dangerous have tended to focus on their value to the community.
negligence: reasonableness
An actor who was complied with all statutory standards may still be found negligent if his conduct is not reasonable under the circumstances.
In judging whether an actor’s conduct is reasonable, the trier of fact will consider the burden of taking precautions as compared to the risks inherent in the actor’s conduct, and the probability that those risks will materialize.
negligence: liability (proximate cause)
Liability typically extends only to individuals within the zone of risk.
If an actor’s conduct creates a recognizable risk of harm only to a particular class of persons, the fact that it causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not render the actor liable to the persons so injured. The actor whose conduct is responsible for an altogether unexpected type of injury usually escapes liability.
negligence: proximate cause (danger invites rescue)
Courts have long held that injuries sustained when running from danger are foreseeable. They have also held that danger invites rescue. The wrong that imperils life is a wrong to his rescuer.
independent contractor
An independent contractor is one who, by virtue of his contract, possesses independence in the manner and method of perofrming the work he has contracted to perform for the other party to the contract.
Independent contractors are usually paid by the job instead of receiving ongoing salaries; the individual who hires an independent contractor typically does not supervise the contractor’s activities or retain a right to control his activities.
vicarious liability: independent contractor
Typically, one who employs an independent contractor is not vicariously liable for the contractor’s acts or omissions.
vicarious liability: independent contract engaged in inherently dangerous work
when an actor “employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, he is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.
negligence duty of care: physicians
A medical doctor is liable to a patient only when the evidence shows that he failed to comply with the standard of care for the relevant specialty and medical community and his failure causes the patient’s injury.
In assessing whether a doctor has met this test, most courts compare the doctor’s conduct to national standards rather than those that prevail in his or her locality. Because the standard requires assessment of typical doctor conduct, expert testimony is almost invariably necessary to establish a doctor’s negligence.
Strict Products Liability
One who sells any product in a defective condition unreasonably dangerous to the user or consumer is subject to liability for physical harm thereby caused.
Strict products liability: manufacturing defect
Products that fail to meet the producer’s own specifications are typically described as having a “manufacturing” defect.
A manufacturing defect is when the product departs from its intended design even though all possible care was exercised in teh preparation and marketing of the product.
In the case of food products, the presence of a harmful ingredient is generally considered a manufacturing defect if a reasonable consumer would not expect the food product to contain that ingredient.
Strict products liability: design defect
A design defect is common to the entire assembly line. There are two theories of design defect: risk utility and feasible alternative design.
Risk Utility Theory (use when they include %):
* Under the risk-utility theory, π must prove that there is an inherently unreasonable risk because the risk of the harm is significant and there is little to no utility to the product.
Reasonable Alternative Design (use when you’re told of a low-cost alternative design):
* Under the reasonble alternative design theory, the π must prove that there was a reasonable and feasible alternative design that was economically and technologically feasible and safer.
Strict products liability: warning defect
A manufacturer is subject to liability for failure to warn if it:
* knows or has reason to know
* that the product is likely to be dangerous for the use for which it is supplied;
* has no reason to believe that the users of the product will realize its dangerous condition; and,
* fails to inform the users of the product’s dangerous condition or of the facts which make the product likely to be dangerous.
Implied warranty of merchantability
Under the UCC, a defendant merchant–one who deals in goods of the kind–may be liable if there is an implied warranty that the product is generally fit for ordinary purposes for which such goods are used, the goods are adequately packaged or labeled, and conform to the promises or affirmations made on the container or lable, if any.
Strict products liability: Causation
Like all tort plaintiffs, the π in a products liability action must establish that the ∆ caused his injury.
Strict products liability: when causation is an issue - market share liabilty
Market share liability doctrine permits the jury to apportion damages based on the market shares of manufacturers of a defective product. But virtually all courts have held that this doctrine is available only if the manufacturers’ defective products are fungible in relation to their capacity to cause harm.
strict products liability: when causation is an issue - alternative liability doctrine
The alternative liability doctrine permits a jury to find two ∆s liable when each was negligent and either could have caused the π’s injuires.
strict products liability: when causation is an issue - joint venture/joint enterprise
The joint venture or joint enterprise doctrine allows the jury to impute one ∆’s tortious conduct to other ∆s who are engaged in a common project or enterprise and who have made an explicit or implied agreement to engage in tortious conduct.
strict products liability: commercial sellers
Strict products liabiltiy applies to all commercial sellers. A commercial seller is any entity in the vertical chain of distribution, including manufacturers, distributors, and retailers.
battery
An actor is subject to liability to another for battery if:
* he acts intending to cause a harmful or offensive contact with the person; and,
* a harmful and offensive contact results.
Intent means either the actor desires to cause the consequences of his actions or knows that the consequences of his actions are certain, or substantially certain, to result from the act.
Bodily contact is “offensive” if it offends a reasonable sense of personal dignity.
consent
Consent is a willingness in fact for conduct to occur. Consent may be manifested by action or inaction and need not be communicated to the actor. If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.
Consent is a defense to intentional torts, including battery.
eggshell skull doctrine
A tort ∆ takes his victim as he finds him. The victim with an “eggshell skull” who suffers injuries greatly in excess of those that a normal victim would suffer is entitled to recover for the full extent of his injuries. Most of the “eggshell skull” cases involve unusual physical consequences of an underlying precondition.
false imprisonment
An actor is subject to liability to another for false imprisonment if:
* he acts intending to confine someone within fixed boundaries set by the actor;
* directly or indirectly resulting in such confinment; and,
* the victim is either conscious of the confinement or harmed by it.
Confinement does not need to be physical or stationary. The individual confinement is not required to endanger his person through escape efforts.
The requisite intent to confine can be shown through either motivation or knowledge.
An actor may be found liable for false imprisonment both when his act was done for the purpose of imposing confinment upon the other and when he acted with knowledge that such confinement would, to a susbtantial certainty, result from his actions.
privilege to false imprisonment
An actor’s actions are privileged if his actions would have been necessary to protect some interest of the actor of of the public which is of such importance as to justify the harm caused or threatened by its exercise.
Duty: psychotherapist
In most states, a psychotherapist who fails to warn an intended victim against whom her patient has made credible threats of physical violence may be found liable for that victim’s injuries. Many courts permit recovery either:
* when the therapist believed that the patient posed a real risk to the specified victim; or,
* when the therapist negligently failed to take the threat seriously.
Some courts have restricted the duty imposed on psychotherapists to intended victims who are readily ascertainable and subject to a serious threat of physical violence. Cases in which courts have imposed a broader duty havae typically involved ∆s who directly facilitated the patient’s attack.
Duty: children
A child must conform to the standard of care of a child of like age, education, intelligence, and experience. However, where a child engages in an adult activity, she is required to conform to the same standard of care as an adult.
The Restatement of Torts provides as examples of dangerous adult activities, driving a car, a tractor, and a motorcycle, and operating other motorized vehicles such as minibikes, motor scooters, dirt bikes, and snowmobiles.
Landowner’s duty to trespassers
A landowner’s duty depends on how the individual entering their land is classified.
A trespasser is one who enters or remains upon the land owned or possessed by another without privilege to do so. In most jurisdictions, a possessor owes no duty of care to make the premises reasonably safe or to warn of hidden dangers unless the court finds that the landowner created an “attractive nuisance.”
Landowner’s duty to licensees
A landowner’s duty depends on how the individual entering their land is classified.
A licensee is someone that, in light of all the surrounding circumstances, a reasonable person would interpret the possessor’s words or conduct as manifesting that he is in fact willing for another to enter upon his land. In most jurisdictions, a landowner owes the licensee a dutyto reveal hidden dangers of which the landowner knows or has reason to know and that the licensee was not likely to discover.
Landowner’s duty: colleges
A college does not stand in a parens patrie relationship with its students. Although the common law imposed almost no duties on landlords to provide safe premises to tenants, moern courts have found that landlords have a duty to take reasonable precautions to protect tenants against foreseeable attacks.
Attractive nuisance doctrine
Under the attractive nuisance doctrine, a possessor of land is subject to liability for physical harm to a trespassing child when that harm is caused by an artificial condition on the land and:
* the owner knows, or has reason to know, that children are likely to trespass the vicinity of the artificial condition;
* the condition is one which the possessor knows or has reason to know will likely involve an unreasoanable risk of death or serious bodily harm to such children;
* the condition is likely to cause injury because of the child’s inability to appreciate the risk;
* the expense of remedying the situation is slight compared to the magnitude of risk; and,
* the owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
do rescuers have a duty of care?
Generally, there is no duty to come to the aid of another. An actor who undertakes to render services designed to reduce the risk of harm to another does acquire a duty of reasonable care toward the other if:
* the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking; or,
* the person to whom the services are rendered or another relies on the actor’s exercising reasonable care in the undertaking.
* OR, actor’s discontinuing aid or protection, if by doing so he leaves the other person in a worse position than when the actor took charge of him.
negligence: breach
In determining whether an actor’s conduct was negligent, the jury should measure that conduct against the conduct of a reasonable, prudent person engaged in a like activity. A reasonable, prudent person takes precautions to avoid foreseeable risks, even if those risks have rarely materialized.
negligence: proximate cause
Liability typically extends only to individuals within the zone of risk or suffered harm foreseeable from the ∆’s conduct.
alternative:
An actor is liable for those harms that are a foreseeable consequence of his negligence.
negligence: exception to proximate cause - danger invites rescue
Injuries sustained when running from danger are foreseeable (even if not within the zone of risk).
negligence: proximate cause - subsequent medical malpractice
Courts have routinely found that subsequent medical malpractice is within the scope of risk created by a tort defendant.
Liability typically attaches even when the medical services rendered cause harm which is entirely different from that which the other had previously sustained so long as the mistake or negligence is of the sort which is recognized as one of the risks which is inherent in the human fallibility of those who render such services.
comparative negligence
Under the modern comparative negligence approach, which most states apply, if the jury finds that two or more parties are negligent, it may apportion fault among them. The amount of damages apportioned to the π because of the π’s negligence is subtracted from the total damages awarded by the jury.
Indemnification
Indemnification (full reimbursement for damages paid to the π) is available to a tort ∆ who has paid the π’s damage award when, as between the paying and nonpaying ∆s, the paying ∆ was not at fault in causing the π’s injuries and the nonpaying ∆ was at fault.
Contributions
A joint tortfeasor who was at fault in causing the π’s injuries is entitled only to contribution (i.e., partial reimbursement for damages paid to the π).
Joint and several liability
Joint and several liability is imposed when there is an indivisible injury. Each joint tortfeasor is liable for the full amount of damages.
Negligence per se
An actor is negligent if the actor violates a statute that is designed to protect against the type of accident the actor’s conduct causes, and if the accident victim is within the class of persons the statute is designed to protect.
Health and safety statutes, like traffic ordinances, are typically deemed to protect the public at large.
customary exceptions to negligence per se
Courts have sometimes read into statutes customary exceptions to a custom embodied by the statute. They have done so on the theory that a legislature would not have intended to decree that individuals should follow a general rule of conduct event under the circumstances where observance would subject them to unusual risk.
Res ipsa loquitur
The doctrine of res ipsa loquitur permits the trier of fact to infer that the harm suffered by the π was ccaused by negligence of the ∆ when:
* the event is of a kind which ordinarily does not occur in the absence of negligence;
* other responsible causes, including the conduct of the π and third persons are sufficiently eliminated by the evidence; and,
* the indicated negligence is within the scope of the ∆’s duty to the π.
Negligent infliction of emotional distress
A plaintiff who is within the zone of danger created by the defendant and who suffers a physical manifestation of emotional distress occasioned by a threatened injury may recover in virtually all states.
In evaluating claims for emotional distress resulting from accidents involving other individuals, American jurisdictions have taken two different approaches:
* Some disallow recovery unless the plaintiff was herself within the zone of danger.
* A larger group permits recovery if the plaintiff was closely related to the victim, was located near the scene of the accident, and suffered shock resulting from the sensory and contemporaneous observance of the accident.
In virtually all jurisdictions, emotional distress must result from sensory and contemporaneous observance of the accident itself, not the receipt of news to the accident. Some jurisdictions that follow the Dillon approach limit recovery to relatives who were at the scene when the accident happened. Some permit recovery by a relative who comes upon the scene shortly after the accident happens. Only a handful of jurisdictions permit recovery based simply on the foreseeability of mental distress.
