Torts Flashcards

Question

What is the duty owed to licensees?

Answer 1

Def: ∏s who enter property with permission for her own benefit/purpose, but do not confer economic benefit to landowner Standard: ∆ owes a duty to licensees to warn of, or make safe a condition that is: 1) dangerous, 2) known to D, 3) nonobvious to licensee

Answer 2

Def: ∏ enters with in response to an express or implied invitation of the landowner 1) When premises are held open to the public for free - ex. churches, airports, museums 2) Enter premises for purpose connected with the business of the landowner - ex. stores Standard: ∆ owes a duty to the invitee to: 1) warn of or make safe any nonobvious, dangerous conditions known to D 2) to make reasonable inspections to discover dangerous conditions, and make them safe (or warn) - - Duty doesn't exist where dangerous condition is SO obvious that the invitee reasonably should have been aware of it

Answer 3

Standard of care: professional is obligated to exercise the skill & knowledge of average members of the same profession ➢ “conform to the professional practice” → collected wisdom in the profession ➢ the custom of the profession 2 important points: ➢ ∏s need expert witness to establish standard of care ➢ WRONG to say standard of care is to behave like a “reasonable doctor” → must behave similarly to their average colleagues

Answer 4

Possessor ∆ owes duty of ordinary reasonable care to prevent child trespassers from getting hurt ASK: How likely is it that kids will trespass? ➢ Is there a kid magnet? ➢ If so, this is an “attractive nuisance” and possessor must take steps to make the land reasonably safe - will depend on how old the kid is

Answer 5

D has satisfied duty, and therefore no liability, if: 1) D fixes the problem – eliminate hazard 2) D gives a warning (yellow caution signs for spills!)

Answer 6

If D's conduct violates a CRIMINAL statute (incl. fines) and this statute applies, this statute might replace the more general duty of care. For statutory standard to apply: 1) ∏ must demonstrate that he/she is a member of class of persons that statute is trying to protect 2) ∏ must demonstrate that the accident that occurred is within class of risks that statute is trying to prevent - - this establishes a presumption of duty & breach - - P must still prove actual & proximate causation to establish prima facie case *Not civil statutes - ∏ should just sue directly under the statute

Answer 7

Test for negligence per se satisfied, but we don't use statute as standard of care if: • statutory compliance would be more dangerous than statutory violation • compliance was impossible → instead, use reasonably prudent standard

Answer 8

NO DUTY to rescue anyone EVER no matter how egregious • Gratuitous rescuers must behave with reasonable prudence - if careless, they can be liable for any harm they cause (assume no Good Samaritan laws unless it says so) EXCEPTIONS: There is a duty to rescue if: 1) If parties have a preexisting (formal) relationship -- Duty of common carriers -- Duty of places of public accommodation 2) If ∆ caused the peril ⇒ Then ∆ has a duty to use reasonable care to aid or assist, but never obligated to put your own life at peril

Answer 9

Duty: D has duty to avoid negligent infliction of emotional distress Breach: ∆ behaved negligently Causation: ∆'s conduct caused ∏'s distress Damages: ∏ did not suffer any physical harm, but suffers physical symptoms from the distress - - Near miss (Zone of Danger) cases - ∏ must show: i) ∆ created a risk of physical injury to the ∏ b/c ∏ was in the zone of physical danger (that ∏ almost got hurt) ii) Damages: MUST suffer physical symptoms from distress - - Bystander cases – ∏ must show - i) direct victim and ∏ are close family members ii) ∏ was there when it happened; and iii) personally witnessed, observed, or perceived (heard) the incident as it happened iv) ∏ suffered physical symptoms from the distress (most states) * *But modern trend is that physical symptoms are NOT necessary -- Relationship cases ∏ and ∆ are in a preexisting business relationship and it is highly foreseeable b/c of nature of the transaction that ∆’s careless performance will cause significant distress Ex. false positive medical diagnosis by laboratory, negligent behavior by funeral establishment

Answer 10

∏ must show: i) the accident was a type normally associated with negligence ii) accident which occurred would normally have been due to the negligence of someone in ∆’s position - - Ex. showing that ∆ had exclusive control over the object Result if ∏ succeeds: ∏ has made prima facie case and case must go to the jury to decide– doesn’t guarantee victory for the ∏

Answer 11

Def: each negligent ∆ is responsible for a destructive force, the forces join together and both forces together hurt ∏. Each cause alone would've been sufficient to cause injury. Substantial factor test: ∆’s breach was a factual cause if ∆ conduct was a substantial factor in causing the ∏’s harm

Answer 12

Def: multiple negligent parties that may have caused ∏’s harm, only ONE could have caused ∏’s harm, but it’s unclear which ∆ caused the harm Result: Shifts burden of proof to each ∆ to show he’s not liable – if ∆s cannot do that, then they’re both jointly liable

Answer 13

These scenarios are foreseeable - proximate causation satisfied 1) intervening negligent medical treatment - -> D is liable for additional injuries 2) intervening negligent rescue (Danger invites rescue) - -> A rescuer is a foreseeable ∏ - if D negligently put himself in a position of danger that might invite rescue and rescuer gets injured, D is liable 3) intervening reaction/panic/protection forces 4) Subsequent disease or accident (leaving someone in a weakened condition, and P suffers second injury)

Answer 14

DAMAGES | once ∆ has committed the other elements of the CoA, this ∆ is liable for ALL harm suffered by the ∏

Answer 15

Pure comparative negligence – [RULE ON MBE] - - ∏ can recover even if her fault is greater than that of the defendant's fault - - determine recovery strictly by the percentages, no matter how little - - Ex. if ∏ was 90% negligent, she will recover 10% of her damages. Partial/Modified comparative fault – - - where ∏ can only recover if her fault is less than that of D's fault - - if ∏’s fault is over 50%, this is an absolute bar to recovery, gets nothing. - - If ∏’s fault is less than 50%, her recovery is reduced by the percentage she was at fault

Answer 16

1) Animals (with known peculiar dangerous propensity, or wild) 2) Abnormally dangerous activities 3) Defective Products

Answer 17

1) D is a merchant - - one who routinely deals in the product sold - any merchant in the stream of commerce 2) Product is defective (manufacturing, design, information) 3) defect existed when product left D's hands (presumed if product moved in ordinary channels of distribution) 4) P used the product in a foreseeable manner at the time of injury (not just the intended use, but any foreseeable uses)

Answer 18

NOT merchants: a) Casual sellers – normal ppl b) service providers – make products available to use collateral to the service, but the focus of transaction is the service being provided Merchants: c) Commercial lessors (rent goods/products to others) ARE considered merchants d) All parties up the distribution chain

Answer 19

Employer is vicariously liable for torts of employees committed within scope of employment, but not for intentional torts Exceptions: employer IS vicariously liable for employee’s intentional torts if: • If force is part of job (security guard, bouncer) • If job generates friction/animosity (debt collector, repo man) and this person loses temper & commits intentional tort – there is vicarious liability • If employee engages in intentional tort out of a motive of serving boss’s purpose Look for: Employer can also be individually liable for negligent hiring

Answer 20

No vicarious liability - EXCEPT hiring party IS vicariously liable if an independent contractor hurts a customer/invitee on the property (nondelegable duty) or IC's acts that are inherently dangerous

Answer 21

At common law: Car owner is NOT vicariously liable for torts of the driver EXCEPT if there is a Principal/agent relationship → if driver is driving car to do an errand or something for the owner – then owner is vicariously liable Now: many states have statutes that impose vicarious liability for torts of an immediate family member driving the car, or anyone driving the car with owner's permission.

Answer 22

if ∆1 paid ∏ in full - can get indemnified if: a) If ∆1 was held vicariously liable and paid the ∏, and active tortfeasor is in the case, then the vicarious party can get $ back from the active tortfeasor (vicarious party gets indemnified) b) products liability cases – ∆1 is a retailer, can get indemnity from the manufacturer

Answer 23

The ∏ must show that (i) there is a dangerous condition present on the land of which the owner is or should be aware, (ii) the owner knows or should know that young persons frequent the vicinity of this dangerous condition, (iii) the condition is likely to cause injury, i.e., is dangerous, 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.

Answer 24

- only foreseeable plaintiffs - would've foreseen a risk of harm to this person - and harm must result from the normally dangerous propensity of the activity involved (the kind of danger to be anticipated from this activity) - even if P was not directly injured by the activity, but was injured indirectly by the dangerous propensity (ex. injuries resulting from feeling from the danger of that activity)

Answer 25

Def: Unreasonable substantial interference with plaintiff's use and enjoyment of his land a) Unreasonableness: P's harm > D's utility b) Substantial = offensive or annoying to the AVERAGE person - * *∏'s hypersensitivity is NOT considered - - if this would not disturb an ordinary person, then there is NO nuisance Balancing of interests and undue interference with ∏'s ability to use and enjoy his real estate → ∆ should be free to use his property as he wants to, but also shouldn't have right to make neighbor miserable or render their property useless

Answer 26

1) Falsity of the statement 2) Fault of the defendant -- actual malice = a. Knowledge that the statement was false; or b. reckless disregard as to its truth or falsity (subjective test) -- not measured by whether a reasonable person would have investigated, but whether this defendant entertained serious doubts as to the truthfulness of the publication, and then published recklessly anyway

Answer 27

1) force is part of the job 2) job generates friction/animosity and employee loses temper 3) employee engages in intentional tort out of motive of serving boss's purpose

Answer 28

- inherently dangerous activities - duty is non-delegable b/c of public policy considerations Otherwise: general rule is that hiring party is NOT vicariously liable for independent contractor

Answer 29

Yes - doesn't matter if she relied on the original defamatory statements

Answer 30

1) Falsity | 2) Fault of D - negligence = D should have investigated the accuracy of his assertions but didn't

Answer 31

Merged causes situation: When 2 or more tortious acts combine to proximately cause an INDIVISIBLE injury to P - each was the actual and proximate cause of injury, and cannot quantify how much each tortfeasor contributed to the injury

Answer 32

Each is entitled to recover as long as their fault is less than 50% (must be less than the combined fault of the other parties) - then take each of their damages and reduce by the percentage of their own fault

Answer 33

- only if it is in hot pursuit of one who has obtained possession wrongfully - only allowed to use reasonable force - if owner lends someone something (person's possession of the owner's chattel began lawfully), owner can only recover it by peaceful means

Answer 34

* *Strict liability imposed only if injured person is a licensee or invitee as long as injured person did nothing to bring about the injury - - if injured person was a trespasser - no strict liability imposed * *Trespassers can only recover under negligence theory: - undisclosed trespassers are owed no duty - cannot recover under either strict liability or negligence - known trespassers might be able to prove negligence - where landowner knows that trespassers are on land and fails to warn them of the animal

Answer 35

No - court only reaches issue of P's negligence after first establishing prima facie case of defendant's negligence - P's negligence comes in when assessing P's recovery/damages

Answer 36

ONLY a merchant - for placing in commerce a product that is so defective (manufacturing, design, or warning) to be unreasonably dangerous -- a user of a defective product is NOT held to this same standard of liability - would need to prove user's negligence

Answer 37

Duty to behave like a reasonably prudent person under the circumstances - - same physical characteristics as the D - - but insanity, low IQ and lack of knowledge are not considered - deemed to have knowledge of things known by the average member of the community. * EXCEPT: if D has superior knowledge, then expected to use that knowledge

Answer 38

-- Duty to possess and exercise the knowledge & skill of a member of the profession (national standard) -- Duty to disclose risks of treatment - to provide patient with enough information about its risks to enable patient to make an informed consent to the treatment. If an undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld consent to the treatment, the doctor has breached his duty

Answer 39

- Duty to exercise a very high degree of care toward their passengers and guests - Liable for slight negligence

Answer 40

If bailment is for sole benefit of the bailor - bailee is liable only for gross negligence If bailment is for sole benefit of the bailee - bailee is liable even for slight negligence (ex. borrowing a car for free) Mutual benefit - ordinary due care (ex. bailment for hire)

Answer 41

If bailment is for sole benefit of the bailee - bailor must warn bailee only of known dangerous defects in the chattel. **NO DUTY with regard to UNKNOWN defects If it is a bailment for hire - bailor owes duty to inform bailee of defects he knows of or SHOULD have known about from reasonable diligence ex. loaning car to bailee for a fee

Answer 42

Natural conditions - NO DUTY Artificial conditions - generally, no duty, except: 1) Duty to prevent unreasonably dangerous artificial conditions/structures abutting adjacent land 2) Duty to take due precautions to protect passersby from dangerous conditions * *Ice falling from the roof would fall under this

Answer 43

Landowner is NOT liable for injuries unless landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity

Answer 44

Only to WARN tenant about existing defects in the premises known to the landlord or has reason to know, and knows tenant is unlikely to discover it on reasonable inspection -- does not have to repair unless landlord covenanted to make repairs

Answer 45

- where compliance w the statute would cause more danger than the violation - where compliance would be beyond D's control (e.g., blind person crossing against the light)

Answer 46

Requirements: 1) activity must create a foreseeable risk of serious harm 2) activity cannot be made reasonably safe - even when reasonable care is exercised by all actors; and 3) The activity is uncommon in the community

Answer 47

1) Nature of D's activity imposes an absolute duty to make safe - - Abnormally dangerous activities, wild animals, products liability 2) Dangerous aspect of the activity is the actual and proximate cause of the plaintiff's injury; and - - harm must result from the "normally dangerous propensity of the activity" - - Injuries caused by running away from the animal counts - - D is liable only to foreseeable plaintiffs - - Liability can be cut off by unforeseeable intervening forces 3) Plaintiff suffered damage

Answer 48

Contributory negligence states -- if ∏ KNEW of the danger and his unreasonable conduct was the cause of the harm from the wild animal or abnormally dangerous activity, then this is a complete defense and ∏ cannot recover Comparative negligence states - will apply same comparative negligence rules as normal negligence

Answer 49

If employer hires employee and employee causes injury to third party, employer can be liable under negligent hiring theory -- ∏ must show that employer was negligent in hiring this employee – then employer is liable regardless of whether the injury occurred within the scope of employment Ex. "A reasonable employer would have discovered the guard's prior convictions and would not have hired him"

Answer 50

Duty to the woman to properly perform contraceptive procedures Damages: recovery for medical expenses, pain & suffering for labor, medical expenses to treat child's disease -- Courts differ on recovery for future costs of raising the child

Answer 51

The speaker was privileged in making the statement (i.e., no liability) if: 1) reports of official proceedings 2) statements were made in interest of speaker: defense of one's actions, property, or reputation 3) statement made in the interest of the recipient (recipient requesting the information) 4) statements in the common interest of the publisher + recipient

Answer 52

1) There was a valid contractual relationship btwn ∏ and 3rd party (or valid business expectancy - no existing contractual relationship) 2) D knew of this relationship/expectancy 3) D's intentional interference induced breach/termination of this relationship/expectancy 4) Damage to ∏ Defense: D's actions might be privileged if he used proper attempt to get business - more likely in cases where it's just a prospective business relationship/expectancy instead of an existing contract

Answer 53

``` Intentional misrepresentation / Fraud: 1) D made a misrepresentation 2) D was aware that statement is false 3) D had intent to induce ∏'s reliance on the misrepresentation 4) ∏ actually relied on it (causation) 5) Justifiable reliance Issue: future events - cannot justifiably rely on a future event that is not under D's control 6) Damages ``` Negligent misrepresentation: - D owed duty to ∏ - Breach of duty = D negligently makes misrepresentation in a business/professional capacity - ∏'s Justifiable reliance on misrepresentation * *Confined to commercial transactions

Answer 54

- D's conduct must be the proximate cause of ∏'s harm. - A D will be liable for all harmful results that are the foreseeable results of his acts. - An intervening force is one that came into motion after D's negligent conduct, and also caused injury to the ∏. - An intervening force will cut off D's liability if it is determined that the intervening force was not foreseeable.

Answer 55

Applies only in contributory negligence state - If ∏ was contributorily negligent, ∏ can rebut by arguing that D had the last clear chance to avoid the accident and failed to do so - so D is liable for negligence 1) Inattentive peril - where ∏, through his own negligence, puts himself in position of harm but COULD have avoided the harm. -- D is only liable if he had ACTUAL knowledge of ∏'s predicament Ex. ∏ was crossing the street while texting and didn't look 2) Helpless peril - where ∏, through his own negligence, puts himself in position of harm and cannot get himself out. - - D is only liable if he had actual knowledge or should have known of ∏'s predicament

Answer 56

1) assumption of risk - ∏ voluntarily and unreasonably encountered a known risk 2) product misuse 3) adequate warnings **contributory negligence is NO defense to SL - if ∏ merely failed to discover defect, or ∏'s misuse was reasonably foreseeable - manufacturer is still strictly liable.

Answer 57

At common law: no liability for torts committed by the driver Now: many states have statutes that impose vicarious liability for torts of an immediate family member driving the car, or anyone driving the car with owner's permission.

Answer 58

Owner of trespassing animals is strictly liable for property damage they cause as long as it was reasonably foreseeable

Answer 59

In comparative negligence states: apply regular comparative negligence rules to strict products liability actions --> ∏'s own negligence reduces his recovery In contributory negligence states: - - ∏'s negligence in failing to discover or guard against danger is not a defense. - - If ∏ voluntarily & unreasonably encountered a known risk = Complete defense

Answer 60

∏ must show: 1) negligent conduct by the D leading to - - For retailers and wholesalers: due care is satisfied by a cursory inspection of the product 2) the supplying of a defective product by the D - - e.g., manufacturing defect, design defect - - Defective food products are treated as manufacturing defects **Intermediary's negligent failure to discover defect does not cut off manufacturer's liability

Answer 61

General rule: lessor is not liable for unreasonably dangerous conditions (this tort liability comes with occupation/control) Exceptions: Lessor/LL will be liable for - - - Covenant to repair - if LL covenants to make repairs, he will be liable for unreasonably dangerous conditions - - Common areas - unreasonably dangerous conditions - - Latent defects - LL must warn T of existing defects in the premises of which LL knows or has reason to know, and knows that T is not likely to discover on reasonable inspection - - Assumption of repairs - - Public use / short-term lease - if LL leases premises knowing the lessee intends to admit the public, the LL is subject to liability for unreasonably dangerous conditions existing at the time he transfers possession, and length of the lease indicates that T will not repair