Torts

Question 1

Negligence

Answer 1

failure to exercise reasonable care that a reasonably prudent person would have exercised under same or similar circumstances and which failure proximately causes a physical injury to the plaintiff, who was foreseeably threatened by defendant’s unreasonable act or omission

Question 2

To plead and prove negligence:

Answer 2

By PREPONDERANCE OF THE EVIDENCE:

a. Defendant owed a DUTY to exercise reasonable care to the injured plaintiff and defendant breached that duty
b. Plaintiff suffered a PHYSICAL INJURY to his person or property
c. Plaintiff’s injuries were PROXIMATELY CAUSED by defendant’s breach of duty

Question 3

Duty

Answer 3

Plaintiff must plead and prove that defendant owed not merely a general duty to act reasonably but rather a specific duty to the particular plaintiff as an objective RPP

**NO children under 4 (NY), under 7 (MBE)

Question 4

Physical Injury

Answer 4

A plaintiff must plead and prove a physical injury to plaintiff’s body or property to make out a prima facie case of negligence

Question 5

Causation

Answer 5

F CLIPS

Factual Causation (“but for” + SUBSTANTIAL FACTOR)

Concurrent Causes of the P’s injuries (more than one proximate cause)

Legal causes

Independent intervening causes (extraordinary and attenuated as to be unforeseeable breaks the chain of causation)

Proximate causes (NATURAL + PROBABLE consequence of D’s tortious act)

Successive causes (multiple acts of negligence occurring at different times, original liable for all subsequent foreseeable injuries)

Question 6

LARGE CD2

Answer 6

Last clear chance (cont. neg., D had a last clear opp. to avoid the accident)

Assumption of Risk

Res ipsa locator (cannot plead what D did, but “it speaks for itself”)

Guest Statute (not NY): Prohibits non paying passenger from recovering against driver

Emergency doctrine

Comparative or contributory negligence

Dram Shop Act (sell liquor to visibly intoxicated, knew under 21, controlled substance provided)

Danger invites rescue (placed themselves and another in danger, liable for rescuer)

Question 7

Assumption of the Risk

Answer 7

Asserts that plaintiff assumed a known risk of foreseeable harm

Express: orally or in writing releases another from future tort liability, it is an express agreement prior to plaintiff’s injury

Implied: when plaintiff voluntarily encounters and is injured by a known common and apparent risk of harm

Question 8

Res Ipsa Loquitor requires:

Answer 8

1. A Probability exists that neither P, nor anyone other than D caused P’s injury
2. The instrumentality or area causing P’s injury was under D’s EXCLUSIVE CONTROL or D had the right or power to control it when the negligence occurred
3. The accident would not have occurred in the Absence of negligence

** Cow in the road, allowing you to use PEA

Question 9

Contributory Negligence

Answer 9

If P’s negligence contributes even 1% to an accident, P is barred from any recovery

Question 10

Pure Comparative Negligence (NY)

Answer 10

P may recover no matter how great P’s apportioned share of fault, P’s culpable conduct simply reduces proportionately the amount of damages P may recover

** Unit rule = comparing P’s percentage of negligence with the combined negligence of all D’s as one unit

Question 11

Modified Comparative Negligence

Answer 11

Which permits a negligent plaintiff to recover provided P’s negligence does not:

a. Equal D’s fault (49% rule because P’s fault may not exceed 49%) or;
b. Exceed D’s fault (the 50% rule, because P’s negligence cannot exceed 50%)

Question 12

Domestic Animals

Answer 12

Those customarily devoted to serving people

The law imposes strict tort liability for personal injuries caused by domestic animals if the owner knew or should have known of its vicious propensity

Question 13

Vicious Propensities

Answer 13

Vicious propensities are an animals inclination or habitual tendency to act in a manner that might endanger another person or property

Question 14

Not entitled to one bite, can look to:

Answer 14

A dog is not necessarily entitled to one bite before absolute liability is imposed, look to see whether the dog demonstrated vicious propensities prior to the first bite (BGS):

a. Bear its teeth,
b. Growl, or;
c. Snap at people

Question 15

Negligent Infliction of Severe Emotional Harm

Answer 15

Generally the plaintiff must prove:

1. Was within the Palsgraf “zone of danger” caused by the defendants negligent conduct
2. A reasonable person would have been severely distressed by the defendants negligent conduct and;
3. The plaintiff suffered a PHYSICAL INJURY as well as emotional distress

Question 16

Bystander Emotional Suffering

Answer 16

Mental distress suffered by a bystander who was:

1. Present and
2. Witnessed an INTENTIONAL TORT committed on the victim

Can recover if the defendant was:

1. Aware of the bystanders presence so that the mental impact on the bystander was FORESEEABLE
2. In the ZONE OF DANGER, also threatened bystander
3. Bystanders is an IMMEDIATE family member to recover for their emotional distress unless it is also accompanied by a PHYSICAL HARM