Torts Flashcards
Negligence
Negligence is conduct without wrongful intent that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm. To establish a prima facie case for negligence, a plaintiff must prove duty, breach, causation, and damages.
Duty
An analysis of duty requires an examination of to whom the duty is owed and what the duty entails (otherwise known as the standard of care). A duty of care is owed to all foreseeable persons that may be injured by a defendant’s failure to meet the reasonable standard of care. Under the majority view (Cardozo), a defendant is only liable to plaintiffs within the zone of foreseeable harm (the “CardoZONE”). Under the minority view (Andrews), if a defendant can foresee harm to anyone as a result of his negligence, then a duty is owed to everyone harmed.
Standard of Care
The standard of care owed by defendant to plaintiff is that of a reasonably prudent person under the circumstances as measured by an objective standard.
Owners of Land Standard of Care
Under the modern rule, landowners owe a duty of reasonable care to everyone. Under Traditional rules, the standard of care owed to individuals depends on the category to which the individual belongs: licensee, invitee, or trespasser.
A trespasser is one who enters or remains on the land without consent or privilege to do so. A licensee is someone who enters the land of another with the express permission of the landowner (e.g., social guests, emergency personnel, etc.). An invitee is someone invited to enter or remain on the land for a purpose connected to business dealings with the landowner.
Invitees: reasonable care (to inspect, discover dangerous conditions, protect invitee from them)
Licensee: Duty to warn of hidden dangers
Discovered Trespassers: warn of hidden dangers. Not from natural conditions or safe artificial conditions.
Undiscovered Trespassers: Refrain from willful, wanton, or reckless disregard for their safety
Attractive Nuisance
A land owner may be liable for injuries to children trespassers if an artificial condition exists where the owner knows or has reason to know children are likely to trespass, the artificial condition poses an unreasonable risk of death or serious bodily harm. The children, because of their youth, do not discover or cannot appreciate the danger. The utility to the land possessor of maintaining the condition is slight compared to the risk of injury. The land possessor fails to exercise reasonable care.
Breach
A defendant will be in breach of his duty to the plaintiff if he fails to meet the applicable standard of care.
Negligence per se
When a statute or administrative regulation defines the standard of reasonable conduct, that standard supersedes common law standards. The plaintiff may establish duty and breach by proving that: (i) he was in the class of people inended to be protected by the statute; (ii) the harm was the type intended to be protected; and (iii) the harm was proximately caused by defendant’s violation of the statute.
Causation
To be held liable, the defendant’s act must be both the actual and proximate cause of plaintiff’s injury.
To prove actual causation, plaintiff must show that but for the defendant’s act, plaintiff’s injury would not have occurred.
To prove proximate causation, plaintiff musth show that her injuries were the foreseeable result of the defendant’s conduct.
Negligence Damages
To recover damages, plaintiff must prove actual injury and not just economic loss. Plaintiff may be able to recover punitive damages if he is able to prove that defendant acted with reckless disregard towards vulnerable victims. Otherwise, Plaintiff will recover compensatory damages. Compensatory damages in tort are retrospective and aim to restore the plaintiff to the position he would have been in but for the defendant’s wrong. Compensatory damages cover pain and suffering, emotional distress, medical expenses (past, present, and future), and loss of income. Nominal damages are not available in a negligence action because they are intended to give the plaintiff a declaratory judgment entitling the plaintiff to litigation costs. Because negligence requires the plaintiff to establish actual damages, nominal damages are not available.
Vicarious Liability
Vicarious liability is a form of strict liability in which one person is liable for the tortious actions of another. It arises when one person has the right, ability, or duty to control the activities of another, even though the first person was not directly responsible for the injury.
As a general rule, an employer is vicariously liable for the tortious conduct of an employee that is within the scope of employment. Those who hire independent contractors, however, are generally not vicariously liable for the torts of the independent contractor. Employers can’t generally be held liable for the intentional torts of their employees.
Res Ipso Loquitur
RIL applies when the accident is of a kind that usually does not occur in the absence of negligence, and the accident was caused by an agent or instrumentality within the defendant’s exclusive control, and was not due to the plaintiff’s fault. RIL shifts the burden by holding all defendants jointly and severally liable unless they can exonerate themselves.
Strict Products Liability
A plaintiff can sue for products liability under negligence, strict products liability, or warranties.
A defendant who is in the business of selling a commercial product may be strictly liable for a defective product that caused foreseeable injuries to a plaintiff.
To establish a prima facie case for strict products liability, the plaintiff must prove that defendant had (1) an absolute duty as a commercial seller of the product, (2) that defendant produced or sold a defective product that was defective when it left defendant’s control, and (3) that the defect caused plaintiff’s injury in a reasonably foreseeable way and (4) there was actual damages.
Products Absolute Duty
A defendant who is in the business of selling a commercial product – including manufacturers, distributors, and retail sellers – is under an absolute duty to provide a safe product.
Product Defect
A product is defective when, at the time of the sale or distribution, it contains a manufacturing defect, a design defect, or inadequate instructions or warnings.
A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The product must not conform to the defendant’s own specifications.
A design defect is found based on the consumer-expectation test or the risk- utility test or a hybrid of both tests. Under the c-e test, plaintiff must prove that the product is dangerous beyond the expectation of an ordinary consumer. Under the r-u test, the plaintiff must prove that a reasonable alternative design that is economically feasible was available to defendant, and failure to use that design rendered the product unreasonably unsafe.
A failure to warn defect exists if there were foreseeable risks of harm, not obvious to an ordinary user of the product, which could have been reduced or avoided by providing reasonable instructions or warnings.
Product Defect Causation
To be the actual cause of plaintiff’s injury, the product must’ve been defective when it left defendant’s control. To be the proximate cause of plaintiff’s injury, the defect causing the plaintiff’s injuries must have occurred when the product was being used in an intended or reasonably foreseeable way.
Plaintiff must have suffered personal injury or property damage.
