TORTS Flashcards
Types of Negligence tested on the BAR
(a) elements
(b) Negligence Per Se
(c) Res Ipsa
Negligence Elements
- duty
- breach
- causation
- damages
Negligence - Duty
Duty of Care
- Foreseeable Plaintiffs = in the zone of danger
REASONABLE PERSON STANDARD = objective standard aka “reasonably prudent person”
Negligence - Duty EXCEPTIONS
PROFESSIONALS - heightened level of education / training (doctors, lawyers, etc.) = duty to act like other professionals in your community with the same background / edu. / training
CHILD - duty to act like other children of same age & maturity
Exception= child is engaged in adult activity –> then held to reasonable person standard
PARENT - duty of a parent to prevent a child from causing harm (if parent knew or should have known)
Negligence - Types of Causation
Actual Cause = but for defendant’s action
Proximate Cause = Foreseeable
Need both
Negligence - Breach
= Failed to comply with level of care
Negligence - Damages
common law: actual, physical injury
Negligence - Duty to Aid
No duty to aid or rescue
*if you begin to render aid, aid must be reasonable
**Unless Special Relationships (when 1 party is vulnerable): parent-child; innkeeper-guest; common carrier-passengers
Negligence - Duty to People Entering your Land
Unknown Trespassers: NO duty of care
Known Trespassers / Licensee (social guests like friends & acquaint.): duty to warn of known (known to landowner) dangers
Invitee (business / commercial; school campus; office; supermarket; shopping mall): Duty to warn, clean-up, and make safe
Intervening Cause
= A separate act that does NOT cut off liability = foreseeable
if foreseeable, defendant will pay for all damages
PRESUMPTION: EVERYTHING THEY SAID IS FORESEEABLE, UNLESS THE QUESTION TELLS YOU OTHERWISE
Superseding Cause
= a separate act so unforeseeable it DOES cut off liability
- Defendant won’t be liable for subsequent damages
Examples:
1. acts of God
2. intentional torts
3. criminal acts
4. anything the question says is unforeseeable
Negligence Per Se
- Violation of a statute or ordinance
- Plaintiff is part of protected CLASS of people statute is trying to protect
- Harm caused is the type statute was designed to protect
Negligence - Res Ipsa
- Act which would not occur absent negligence
- Defendant has control of property = inference of negligence
- Defendant has exclusive control – nobody else could have done it
*Look for Motion for Directed Verdict or Summary Judgment
** Answer choice includes language of what a JURY must find, infer, conclude, etc.
Strict Liability - 2 types
- Wild Animals
- Abnormally Dangerous Activity
Strict Liability - Wild Animals
- Domestic Animals: NOT strict liability
- if has dangerous propensities, considered a wild animal and owner liable for strict liability
- Wild Animals: always wild, can’t be domesticated
*any injury that is type of injury that occurs when you encounter a wild animal
**animal does NOT have to physically touch you
Strict Liability - Abnormally Dangerous Activity
Blasting, explosives … dangerous, hazardous, etc.; chemicals
Defense to either form of Strict Liability: Assumption of the Risk
know & appreciate (understand) the danger of the risk, and you do it anyway
knowledge alone is not enough
NEVER assume there was assumption of risk
NEVER PICK AN ANSWER THAT DISCUSSES A DEFENSE OR EXCEPTION TO THE RULE UNLESS YOU’RE SURE THAT IS WHAT THEY ARE TALKING ABOUT
Strict Product Liability
(a) Product defective (broken/doesn’t work) when it left factory, sold by seller engaged in business of selling product (commercial seller);
(b) sold to foreseeable user (can also be foreseeable of purchaser);
(c) who used it in manner it was intended
- can sue anyone in chain
*Question will tell you who is NOT a foreseeable user
Inadequate Warning
Aka Failure to Warn
Another version of strict product liability
Product Liability - Negligence
Someone in chain of selling (i.e. Retailer, manufacturer, etc.) failed to do something they were supposed to do
Products Liability - Warranty
There was a label, sticker, something in writing promising how product would work
- should be obvious
- NEVER implied
Private Nuisance
Unreasonable interference with the USE AND ENJOYMENT of someone’s property
- must be unreasonable to an OBJECTIVE person (reasonable person)
- one landowner v. another landowner
Public Nuisance
Entire community, brought by Public Official, look for Special Damages
- Affecting the community / public at large
- If private Plaintiffs are suing based on public nuisance, must talk about special or unique damages
Contributory Negligence
If Plaintiff was responsible for any %, Plaintiff cannot recover
Pure Comparative Fault
if plaintiff was negligent, damages reduced by plaintiff’s % of fault
Moderate / Modified Comparative
if plaintiff is up to 50% liable, will recover but damages reduced by plaintiff’s % of fault
51% or more = plaintiff cannot recover
joint & several liability rule
plaintiff may recover 100% of their damages from any single defendant
contribution
one defendant who pays may seek contribution from their co-defendant
vicarious liability rule
employer will be liable for the negligent acts of their employees as long as employee was acting in the scope of employment
Independent Contractors rule
someone who hires a contractor & contractor is liable then person who hired them is not liable
independent contractors exception
person who hired them is liable if:
- the work being done is abnormally dangerous OR
- the work being done is a non-delegable duty (work being done on behalf of or for the safety of the public)
