Torts Flashcards
Negligent Infliction of Emotional Distress—Zone of Danger, MBE 3
Negligent Infliction of Emotional Distress—Zone of Danger, MBE 3
D breaches a duty to avoid negligent infliction of emotional distress when he creates a foreseeable risk of PHYSICAL injury to P through PHYSICAL impact or threat of PHYSICAL impact. Damagers are recoverable only if D’s conduct causes some PHYSICAL injury, rather than purely emotional distress (although a severe shock to the nervous system is considered a physical injury).
Public Disclosure of Private Facts, MBE 9
Public Disclosure of Private Facts, MBE 9
Four categories of invasion of privacy: FLAPS. For Public Disclosure of Private Facts, the disclosed facts must be private. If they are facts easily ascertainable through public means, their disclosure does not constitute an invasion of privacy.
Agent as Independent Contractor—Reqts & Vicarious Liability, MBE 12
Agent as Independent Contractor—Reqts & Vicarious Liability, MBE 12
An agent is likely to be an independent contractor if he (i) is engaged in a distinct business of his own; (ii) controls the manner and method by which he performs his tasks; (iii) is hired to do a particular job; (iv) supplies his own tools and materials; (v) is paid a given amount for the job; and (vi) is hired to do a short-term, specific job.
A principal can be held liable for the tortious acts of an independent contractor if: (i) the independent contractor is engaged in inherently dangerous activities; or (ii) the principal has a duty that is nondelegable on public policy grounds. Also a principal can be held liable for negligent hiring.
Vicarious Liability & Partnerships, MBE 13
Vicarious Liability & Partnerships, MBE 13
Each member of a partnership is vicariously liable for the tortious conduct of another partner committed in the scope of the partnership’s affairs.
Negligence & Foreseeable Child Trespassers, MBE 15, 31
Negligence & Foreseeable Child Trespassers, MBE 15, 31
A landowner has a special duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on his property. This duty is imposed if the P shows: (i) there is a dangerous condition on the land of which the owner is or should be aware; (ii) the owner knows or should know that children frequent the vicinity of this dangerous condition; (iii) the condition is likely to cause injury because of the child’s inability to appreciate the risk; and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk.
Merely posting warning signs will be insufficient if they fail to alert child to the specific danger of the artificial condition, the child lacks the capacity to understand the danger, and the expense of remedying the situation is slight compared with the magnitude of the risk.
Contribution & Indemnification, MBE 16
Contribution & Indemnification, MBE 16
Indemnity involves shifting the entire loss between tortfeasors & is available where: (i) there is a contractual promise to indemnify, (ii) there is a special relationship between the Ds that would allow for vicarious liability; or (iii) D is a supplier in a strict products liability case who is liable to an injured customer, thus giving the supplier a right of indemnification against previous suppliers in the distribution chain. Additionally, some states allow a joint tortfeasor to recover indemnification from a co-joint tortfeasor where there is a considerable difference in degree of fault. However, comparative contribution supplants indemnification rules based on identifiable differences in degree of fault, so that nonpaying tortfeasors are simply required to contribute in proportion to their relative fault.
Leaving unattended construction equipment without a safety lock device makes the contractor liable. The company responsible for repairing & maintaining such equipment is also liable for not having a safety lock device.
Vicarious Liability—Parents & Children, MBE 18
Vicarious Liability—Parents & Children, MBE 18
Generally, parents are not vicariously liable for the tortious conduct of their children. Vicarious liability may lie if the child commits a tort while acting as the parents’ agent. Most states, by statute, also make parents liable for the intentional torts of their minor children up to a specified dollar amount. Parents may also be held liable for their own negligence in allowing a child to do certain things such as operating a dangerous object without proper instruction.
Mitigation & Avoidable Consequences Rule, MBE 19
Mitigation & Avoidable Consequences Rule, MBE 19
The duty to mitigate damages is also known as the Avoidable Consequences Rule.
Unauthorized Surgery & Battery, MBE 20
Unauthorized Surgery & Battery, MBE 20
The prima facie case for battery requires: (i) an act by D that brings about a harmful or offensive contact to P; (ii) intent on the part of D to do the act; and (iii) causation.
Having a different surgeon than the one authorized perform operation can establish a prima facie case for battery despite the fact that the operation was a success & P may not be able to prove damages. D can be awarded nominal damages
Negligence & Unreasonably Dangerous Artificial Conditions, MBE 22
Negligence & Unreasonably Dangerous Artificial Conditions, MBE 22
P owes a duty to those off the premises for unreasonably dangerous artificial conditions. Hedges are considered artificial conditions analogous to a fence. Allowing hedges to grow so large that they create a foreseeable danger to motorists by obstruction their vision is a breach of duty.
Pure Comparative Negligence—Fault & Cross-Claimants, MBE 23
Pure Comparative Negligence—Fault & Cross-Claimants, MBE 23
Pure comparative negligence rules allow recover no matter how great P’s negligence is. If cross claimants are share fault, one claimant may still recover even if she’s at proportionately greater fault if her damages are significantly greater than the opposing claimant.
IIED vs. NIED, MBE 29
IIED vs. NIED, MBE 29
In contrast to NEID, IIED does NOT require proof of physical harm to recover.
Negligence—Adults & Children, MBE 33
Negligence—Adults & Children, MBE 33
A person is under a legal duty to act as an ordinary, prudent, reasonable person. It is presumed that an ordinary, prudent reasonable person will take precautions against creating unreasonable risks of injury to other persons. Thus, if D’s conduct creates an unreasonable risk of injury to persons in the position of P, then the general duty of care extends from D to P.
An adult intentionally or negligently throwing a 10-year-old’s ball into a road negligently exposes the child to an unreasonable risk of harm.
Contribution, Indemnity & Negligence, MBE 33
Contribution, Indemnity & Negligence, MBE 33
One from whom contribution is sought or against whom indemnity is sought must be originally liable to P.
