Torts Flashcards
What are the requirments to establish a prima facia case of negligence?
Rule 1499: In order to establish a prima facie case of negligence, a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, that such breach was a proximate cause of injury to the plaintiff, and damages suffered by the plaintiff (e.g. if a plaintiff’s house burns down from a fire that appears to have started in his toaster oven, and this is the only evidence available in his negligence action against the store, then the store can successfully move for summary judgment against the plaintiff since there is no evidence of negligence that can be attributed to the store since a prima facie case in negligence (unlike strict liability) requires facts sufficient to show a defendant’s negligence. In addition, the plaintiff cannot resort to res ipsa loquitur since the store did not have exclusive control over the instrumentality). [2013]
What is the rescue doctrine?
Rule 1500: Under the rescue doctrine, if a tortfeasor creates a circumstance that places the tort victim in danger, the tortfeasor is liable not only for the harm caused to the victim, but also the harm caused to any person injured in an effort to rescue that victim, BUT a tortfeasor does not owe a duty of care to a professional rescuer for injury that was sustained by the very negligence that occasioned the rescuer’s presence and that was within the scope of the hazards inherent in the rescuer’s duties (e.g. if A’s car suffers a tire blowout and a truck driver stops to help and then gets hit by another speeding car, the negligent tire manufacturer can be held liable for the truck driver’s injuries because the truck driver was not a professional rescuer). [2011]
Circumstantial evidence can be used to show what?
Rule 1501: In absence of direct evidence of negligence, circumstantial evidence (evidence of one fact from which another fact may be inferred) can sometimes be used to show that the defendant breached a duty of care if the claim is supported by sufficient circumstantial evidence to permit the inference of negligence (e.g. if a person with no history of kidney problems suffers kidney failure after receiving 70mg pills from a pharmacist even though the prescription clearly states 50mg pills, and kidney failure is a known side-effect if someone overdoses on these pills, a jury can reasonably conclude that the plaintiff would not have been injured but for the pharmacist’s negligence and the pharmacy, as the pharmacist’s employer, is also liable under the theory of respondeat superior). [2011]
Is a statute that makes the federal gov’t liable only for negligence and no other torts constitutional?
Rule 1502: If a statute makes the federal gov’t liable only for negligence and no other torts, the statute is constitutional (e.g. if a P sues the fed gov’t for killing his cows, and the trier of fact finds no evidence of negligence on the part of the fed gov’t, the P’s claim must be dismissed). [2008]
While a negligent tortfeasor is not generally liable for the tortious or criminal acts of 3rd parties resulting from the tortfeasor’s negligent conduct, the tortfeasor will be found liable if what?
Rule 1503: While a negligent tortfeasor is not generally liable for the tortious or criminal acts of 3rd parties resulting from the tortfeasor’s negligent conduct, the tortfeasor will be found liable if the 3rd party tortious or criminal acts were foreseeable by the tortfeasor (3rd party actions are regarded as within the scope of the created risk rather than superseding). [2006]
a medical professional’s duty of care extends only to the patient UNLESS?
Rule 1504: Unless a patient poses a threat to others, a medical professional’s duty of care extends only to the patient, and non-patients will have no cause of action against the medical professional for the acts of the patient. [2006]
If a person has an unforseen medical emergency while driving, will they be negligent?
Rule 1505: A person is not negligent if he has an unforeseen medical emergency (such as a heart attack) while driving his car and he crashes into another vehicle. [2006] Rule 1508: A person who suffers a heart attack while driving and hits a child will not be found negligent if the driver took reasonable care while driving and the heart attack was unforeseeable. [1998]
Does a doctor have a legal duty to provide aid to an injured person if the doctor is not responsible for the injured party’s condition?
Rule 1509: There is no legal duty for a doctor to provide aid to an injured party if the doctor is not responsible for the injured party’s condition. [1992]
Does an individual have a duty to aid another person who is in immediate danger due to that individualas conduct?
Rule 1510: An individual may have a legal duty to aid another person who is in immediate danger of serious harm due to the individual’s non- negligent conduct. This duty is greater than a duty to aid another person who is in immediate danger of serious harm due to a stranger’s wrongful conduct. [1992]
What is the doctrine of take the plantif as he finds him?
Rule 1511: A defendant “takes his plaintiff as he finds him” and is liable even if the extent of the injury was not a foreseeable consequence of the negligence. [1992]
municipality’s failure to replace a traffic control device at a busy intersection within four days constitutes negligence if what?
Rule 1512: A municipality’s failure to replace a traffic control device at a busy intersection within four days constitutes negligence if an injury occurs as a result. [1992]
May a person be held liable in tort solely on the grounds that he failed to render assistance?
Rule 1513: A person generally cannot be liable in tort solely on the grounds that he failed to render assistance. [1992]
If a specific danger is imminent and patently foreseeable and a person exposes the plaintiff to it anyway, then the person is negligent if what?
Rule 1514: If a specific danger is imminent and patently foreseeable and a person exposes the plaintiff to it anyway, the person is negligent if an injury occurs. [1992]
If a tortfeasor tries to warn the plaintiff but is unsuccessful and the plaintiff is injured by the tortfeasors conduct, will the tortfeasor be negligent?
Rule 1515: If a tortfeasor tries to warn the plaintiff but is unsuccessful and the plaintiff is injured by the tortfeasors conduct, the tortfeasor will be found negligent. [1992]
There is NO duty to control the conduct of a third person, except in special relationships SUCH as
Rule 1516: There is NO duty to control the conduct of a third person, except in special relationships (e.g. common carrier/ passengers; innkeeper/ guests; employer/ employee; school/ student; jailor/ prisoner; landlord/ tenant; or hospitals and therapists who are in charge of dangerous mental patients). [1991]
What makes certain duties non-delegable?
Rule 1517: Public policy makes certain duties nondelegable (e.g. a car owner is still liable if he injures someone because the car wouldn’t stop, even if it was due to his mechanic putting defective brakes on the car). [1991]
If the type of injury is foreseeable, then the defendant is liable even if
Rule 1518: If the type of injury is foreseeable, then the defendant is liable even if the extent of the injury is unforeseeable. [1991]
What standard of care are minors held to?
Rule 1520: In negligence actions, minors are held to the standard of a reasonable child (not that of an adult) of similar age, intelligence, and experience (capacity), BUT where a child engages in a potentially dangerous activity normally pursued only by adults (e.g. driving), the child will be held to the standard of care that a reasonable adult doing that activity would exercise (e.g. a 12-year-old driving a motor boat will be held to the same standard of care as an adult). [2019]
What standards must be met to prove a prima facia case of professional negligence?
Rule 1521: To prove a prima facie case of professional negligence, the plaintiff must establish the appropriate standard of care and show the defendant failed to adhere to that standard of care; the plaintiff must generally use expert testimony to establish what a reasonable professional would have done in the situation since the jury doesn’t know what is reasonable for that profession in order to establish negligence. In the case of a specialist, he is held to a national standard of all those who practice that specialty (e.g. if a doctor holds himself out as a board certified orthopedist, he is held to a national standard within the specialty of orthopedics), and if the plaintiff cannot prove his prima facie case by failing to introduce evidence the specialist’s care fell below the professional standard of care, the court will grant a directed verdict for the defendant. [2019]
Parents are not liable for a child’s torts/ negligence merely on the basis of the parental relationship alone, BUT when will they be held liable?
Rule 1522: Parents are not liable for a child’s torts/ negligence merely on the basis of the parental relationship alone (or for failure to control a child merely because the child is known to be rough), although a parent can be guilty of negligent supervision, failure to warn, or failure to exercise reasonable care to protect against the child’s dangerous propensities. A parent’s duty to an invitee extends to warning of hazards the invitee may face on the property or upon leaving the property, BUT where the injured party was aware of the hazard (or should have been aware of the risk) through general knowledge, observation or common sense, a negligence claim based on the parent’s failure to warn will not hold up b/ c the failure to warn cannot be the proximate cause of the invitee’s injury. [2019]
The existence of an ordinary custom in an industry is relevant and admissible in evidence on the issue of negligence, but it is not conclusive because what?
Rule 1523: The existence of an ordinary custom in an industry is relevant and admissible in evidence on the issue of negligence, but it is not conclusive because the negligence standard of an ordinarily prudent person may be a higher standard than the standard of care followed by a particular community or industry (e.g. P and D own and operate trucking businesses. One of P’s trucks collides with one of D’s trucks. P sues D based on the negligence of D’s driver. D argues that P was negligent for not equipping its trucks with a particular type of brakes that would have prevented the accident. P argues in response that it is not customary in the industry to equip that type of truck with this type of brakes. P’s evidence about industry custom is relevant and admissible, but not conclusive, on the issue of P’s negligence to the same extent it would be in a suit by D against P for damage to D’s truck). [2019]
What standard of care is a child held too?
Rule 1524: A child is held to the level of conduct of a reasonable person of that age and experience, not that of an adult, BUT where a child engages in a potentially dangerous activity normally pursued only by adults (e.g. driving), the child will be held to the standard of care that a reasonable adult doing that activity would exercise (e.g. if a 13-year-old boy with an IQ of 60 drives a car without parental supervision despite his lack of experience and accidentally hits a pedestrian, he will be liable in negligence because he was engaging in an adult activity, and a minor who engages in a dangerous activity is held to the adult standard of care without taking into consideration a minor’s mental disability or lack of experience). [2013]
What is a wrongful birth action?
Rule 1525: A wrongful birth action is a claim by parents of a deformed or defective child who allege that negligent advice as to the risk of genetic or birth defects or negligent treatment, or failure to abort a fetus, by the defendant deprived them of the choice of avoiding the child’s conception or of terminating the pregnancy, and the parents are entitled to compensation for the financial loss they will suffer for raising a physically or mentally challenged child (e.g. if a mother gives birth to a blind baby after a doctor negligently fails to diagnose a common genetic defect responsible for the blindness, the best action against the doctor is a wrongful birth action by the mother for expenses she has incurred due to the baby’s blindness, on the ground that but for the doctor’s negligence, she would not have proceeded with the pregnancy, because parents who conceive a child with a birth defect due to a doctor’s negligence can recover the added expenses that could have been avoided, but not the entire expense of child rearing). [2013]
A criminal statute can be used to set the standard of care in a negligence action if:
Rule 1526: A criminal statute can be used to set the standard of care in a negligence action if: (1) the statute in question was designed to protect the class of persons that includes the plaintiff; and(2) the statute was designed to protect against the kind of harm the plaintiff actually suffered (e.g. if a criminal statute requires fire sprinklers in warehouses, if P is injured due to a fire in D’s unsprinklered warehouse, P can recover from D because P was harmed by D’s violation of a statute enacted to protect against this type of harm). [2011]
What is the standard of conduct to which one must conform to avoid being negligent ?
Rule 1527: The standard of conduct to which one must conform to avoid being negligent is that of a reasonable person under like circumstances (e.g. in a negligence action, if a man sues a car rental agency for his injuries caused by an exploding bomb hidden in his rented car, the rental agency is not liable since the danger is not reasonably foreseeable due to the extreme rarity of such an event and the rental company had no specific reasons to suspect such a danger). [2011]
If a person hiking on private property without the owners knowledge or permission is injured, the owner is WHAT? AN WHY?
Rule 1528: If a person hiking on private property without the owners knowledge or permission is injured, the owner is generally not liable b/ c a possessor of land is not required to exercise reasonable care to make his land safe for trespassers except for artificial conditions highly dangerous to trespassers and only when he knows about the trespasser or has some reason to anticipate the trespasser’s presence (e.g. an owner is not liable if a hiker enters owner’s land without the owner’s knowledge or permission and is injured by a falling tree limb infested by termites). [2008]
A police officer injured in a non- emergency situation can sue the tortfeasor for negligence if WHAT?
Rule 1529: A police officer injured in a non- emergency situation can sue the tortfeasor for negligence if the injury was not based on the risks inherent with dangerous police work. [2006]
In a pure comparative negligence jurisdiction, if a bright nine year old fails to appreciate an obvious risk where a sign also warns of the danger, a claim of negligence will ____ and WHY
Rule 1530: In a pure comparative negligence jurisdiction, if a bright nine year old fails to appreciate an obvious risk where a sign also warns of the danger, a claim of negligence will fail. A danger encountered by a child trespasser is not an attractive nuisance unless there is evidence that the possessor has reason to know that children are likely to trespass, and evidence that the plaintiff did not appreciate the risk involved. [2006]
: In a pure comparative negligence jurisdiction, if a child in a day care center somehow escapes and is injured, the day care center will not be held negligent if what?
Rule 1531: In a pure comparative negligence jurisdiction, if a child in a day care center somehow escapes and is injured, the day care center will not be held negligent if the center exercised reasonable care to ensure that the children in their charge did not leave the premises. [2006]
An action for negligence should be dismissed if the only evidence supporting the claim is that _____?
Rule 1532: An action for negligence should be dismissed if the only evidence supporting the claim is that the defendant violated a statute and it can be shown that the statute was not intended to protect the plaintiff from the type of harm that occurred. [2006]
A homeowner who sells his house can be held liable for negligence if what?
Rule 1533: The seller of a house can be held liable for negligence if he was aware of a defective condition, sells the home, and a person is subsequently injured by the defective condition. [1998]
: A defendant can be found negligent for failure to warn if WHAT?
Rule 1534: A defendant can be found negligent for failure to warn if a reasonably prudent person would warn of the danger. [1998]
Although a common carrier has a duty to aid an injured passenger, the carrier is not liable if WHAT?
Rule 1535: Although a common carrier has a duty to aid an injured passenger, the carrier is not liable if conditions made it impossible for the carrier to render assistance. [1998]
Under the Attractive Nuisance doctrine, an owner owes a duty of reasonable care to a trespassing child if:
Rule 1538: Under the Attractive Nuisance doctrine, an owner owes a duty of reasonable care to a trespassing child if: (1) the owner knows that the area is one where children are likely to trespass;(2) the owner has reason to know that the condition poses an unreasonable risk of serious injury or death to trespassing children; (3) the injured child either does not discover the condition or does not realize the danger, due to his youth; (4) the benefit to the owner of maintaining the condition in its dangerous form is slight weighed against the risk to the children; and (5) the owner fails to use reasonable care to eliminate the danger. [1992]
What is negligence per se?
Rule 1539: When a safety statute has a sufficiently close application to the facts of the case at hand, an unexcused violation of that statute by a defendant is “negligence per se,” and thus conclusively establishes that the defendant was negligent. [1992]
What duty of care is held to undiscovered trespassers?
Rule 1540: Undiscovered trespassers (i.e. people on land without the occupier’s knowledge) are NEVER owed a duty of care, no matter how they were injured. [1992]
When can a rescuer assert a claim against a property owner for the rescuers injuries?
Rule 1541: A rescuer cannot assert a claim against a property owner for the rescuer’s injuries if the property owner was not at fault. [1992]
If a defendant’s negligence creates a danger which causes some third person to attempt a rescue, is the defendant liable to the rescuer?
Rule 1542: If a defendant’s negligence creates a danger which causes some third person to attempt a rescue, the defendant may be liable to the rescuer. [1992]
a driver injures someone because his brakes failed, what defense can the driver use?
Rule 1543: If a driver injures someone because his brakes failed, a defense is that the driver used reasonable care in the maintenance of his brakes. [1992]
In what circumstance can a mechanic be held liable for a car accident?
Rule 1546: A mechanic can be held liable for a car accident if the mechanic was negligent in inspecting the driver’s brakes. [1992]
claim for negligence will succeed if what?
Rule 1547: A claim for negligence will succeed if the tortfeasor could have taken reasonable steps to prevent the injury but did’t. [1992]
A negligence cause of action will fail if what?
Rule 1548: A negligence cause of action will fail if a reasonably prudent person could not foresee injury to the plaintiff as a result of defendant’s action. [1992]
If a person violates a statute, but the violation of the statute is not the proximate cause of the injury to the other person what would be the result?
Rule 1549: If a person violates a statute, but the violation of the statute is not the proximate cause of the injury to the other person, there is no cause of action for negligence based on that violation. [1992]
When may a passenger in a car injured in an accident recover from the driver under a negligence theory?
Rule 1551: A passenger in a car injured in an accident cannot recover from the driver under a negligence theory if the driver did not act unreasonably. [1992]
A person cannot be found negligent if they what?
Rule 1552: A person cannot be found negligent if they exercised the due care a reasonable person in the same circumstances would have exercised and the risk of danger was not foreseeable. [1992]
A contractor is liable under a negligence theory if the contractor what?
Rule 1553: A contractor is liable under a negligence theory if the contractor has reason to know that a condition at his work site poses an unreasonable risk of serious injury or death to trespassers and the contractor fails to use reasonable care to eliminate the danger. [1992]
if a doctor fails to inform you that the operation has a 2% risk of death and the operation is a success, may you sue and win under a neglgence theory?
Rule 1556: If a doctor fails to inform you that the operation has a 2% risk of death and the operation is a success, there is no negligence because you were not harmed. [1991]
What duty of care is helf for common carriers?
Rule 1558: Common carriers are under a duty to their passengers to take reasonable action to protect them against unreasonable risk of physical harm. [1991]
A hotel is not liable under Res Ipsa Loquitur if a chair falls out of a window and injures a passerby because why?
Rule 1560: A hotel is not liable under Res Ipsa Loquitur if a chair falls out of a window and injures a passerby because the chair was not under the hotel’s exclusive control (it is unreasonable to expect them to prevent a guest from throwing a chair out of a window); likewise, the occupants of all the rooms from which the chair might have been thrown are not liable under Res Ipsa since the guests only have partial control of the furniture. If plaintiff fails to persuade the court that the doctrine applies, the plaintiff usually ends up with a directed verdict against him because he has no other evidence of negligent conduct. [2019]
If a plaintiff is injured when a hospital wheelchair collapses, or an escalator or elevator malfunctions, an automatic door closes on him, or a public telephone shocks him, the plaintiff may be permitted to claim res ipsa loquitur negligence, so long as what?
Rule 1561: If a plaintiff is injured when a hospital wheelchair collapses, or an escalator or elevator malfunctions, an automatic door closes on him, or a public telephone shocks him, the plaintiff may be permitted to claim res ipsa loquitur negligence, so long as the plaintiff can exclude himself as the probable cause of the injury. [2019]
When can res ipsa loquitor be applied?
Rule 1562: Res Ipsa can apply if the accident is one that normally does not occur without carelessness on the part of the defendant, and the court will hold that the occurrence itself will permit the conclusion that someone was negligent - Res Ipsa does’t mean the plaintiff wins the case, it simply permits the jury to infer negligence, but it does not require them to do so (e.g. injuries suffered from eating canned food containing large chunks of glass is an example of an event that normally does not occur unless someone is negligent). [2019]
Res ipsa loquitur can be applied in medical situations if: (3 requriments)
Rule 1563: Res ipsa loquitur can be applied in medical situations if: (1) P receives an unusual injury; (2) while P is in care and control of the defendant(s); and (3) P is unconscious or unable to explain the injury. If medical RIL applies, the burden is shifted to the Ds to refute the inference of negligence - all Ds who had any control over P’s body or instrumentalities which might have caused the injury owed a duty of ordinary care to P and therefore may be held liable. [2019]
Res ipsa loquitur can be applied in medical situations if: (3 requriments)
Rule 1564: In medical situations, res ipsa loquitur can be applied when the plaintiff: (1) receives an unusual injury; (2) is in care and control of the defendant(s); and (3) is unconscious (e.g. if a plaintiff sues a medical team composed of a surgeon and supporting nurses and establishes that the professional duty of care was breached when she suffered a severe burn to her leg during foot surgery under full anesthesia, the plaintiff’s best argument against a motion for dismissal is an extended res ipsa loquitur applicable to medical cases; i.e., at least one of the defendants had exclusive control over the agency or instrumentality of harm). [2011]
Under the doctrine of res ipsa loquitur, if there is no direct evidence of how the D behaved, a jury can infer negligence if what?
Rule 1565: Under the doctrine of res ipsa loquitur, if there is no direct evidence of how the D behaved, a jury can infer negligence if P’s accident would ordinarily not occur in the absence of negligence and D is responsible for the instrumentality that inflicted the injury (e.g. the doctrine of res ipsa loquitur applies to the operation of an automatic door at a supermarket if the door and its maintenance are under the exclusive control of the storekeeper and there is no indication that the accident was P’s fault). [2008]
Will res ipsa loquitor apply if a person slips on a banana peel and the store owner did not know or had no reason to have know about the condition?
Rule 1566: Res ipsa loquitur will not apply if a person slips on a banana peel and there is no reasonable basis for inferring that the store- owner knew or should have known of the dangerous condition. [2006]
May res ipsa loquitor be used to infer negligence in a place crash that occurred in good weather?
Rule 1567: The doctrine of res ipsa loquitur can be used to infer negligence in a plane crash that occurred in good weather. [1998]
A claim based on res ipsa loquitur will fail if what?
Rule 1568: A claim based on res ipsa loquitur will fail if the trier of fact determines that the person in control of the instrumentality had taken reasonable precautions to prevent such an injury. [1992]
When does joint and several liability exists?
Rule 1569: Joint and several liability exists when the tortious conduct of each of two or more persons acting independently but concurrently combine as substantial factors in causing an indivisible injury - these concurrent tortfeasors are jointly and severally liable for the plaintiff’s entire loss, unless the defendants can prove that the injuries are divisible (meaning liability is therefore several only and apportionable among them). It does not matter that they did not act in concert, or that neither’s conduct by itself would have caused the injury - each defendant is still liable if his conduct is a substantial factor in bringing about the harm (e.g. if one defendant drives an automobile at an excessive speed while another defendant negligently pushes the plaintiff into the path of the car, each negligent act is a substantial factor in causing the plaintiff’s indivisible injury and the conduct of each actor is a concurring cause as to the other, and the act of each does not extinguish the liability of the other). [2019]
Under a Loss of Chance of Survival claim, when a disease could have been diagnosed earlier (when there had been a better chance of recovery), some jurisdictions allow what?
Rule 1570: Under a Loss of Chance of Survival claim, when a disease could have been diagnosed earlier (when there had been a better chance of recovery), some jurisdictions allow for recovery for loss of chance or reduced chance of survival even though the plaintiff ca’t prove that it is more likely than not that defendant’s negligent conduct caused the injury (e.g. if a man has a reasonable chance (although less than 50%) of surviving a heart failure if his heart disease is correctly diagnosed but a hospital fails to diagnose and he dies shortly thereafter, his wife will likely recover against the hospital in a jurisdiction that allows recovery for the loss of the chance for survival (an exception to the traditional rules of causation), BUT she will not recover in a jurisdiction following the traditional rules of causation, which require her to prove a defendant’s reasonable action would have resulted, more likely than not (51%), in the ma’s survival). [2013]
Under the subsequent injuries exception, a defendant can be deemed to proximately cause injuries resulting from a weakened condition of the plaintiff when: (2 requir)
Rule 1571: Under the subsequent injuries exception, a defendant can be deemed to proximately cause injuries resulting from a weakened condition of the plaintiff when: (1) the original injury was the result of either a disease or broken/ injured limbs and (2) defendant’s first injury made the plaintiff more susceptible (e.g. If a pedestrian is hit by a car resulting in an injury to his legs that makes them unsteady, and the pedestrian later injures his shoulder when he falls down a stairway due to his unsteady legs, the driver is liable for injuries both to his legs and shoulder because the pedestria’s injuries are a foreseeable consequence of the original action and will not break the chain of causation). [2011]
n a jurisdiction with a system of pure comparative negligence with joint and several liability, if two or more defendants are liable for a plaintiff’s injury, how much damage may the plantiff pursue from any one defendant?
Rule 1572: In a jurisdiction with a system of pure comparative negligence with joint and several liability, if two or more defendants are liable for a plaintiff’s injury, the plaintiff (after subtracting any percentage of her own fault) can pursue the entire amount of damages from any one defendant, although this defendant can seek contribution from the other defendants if he pays more than his share of fault (e.g. if P suffers $10,000 in damages and is 10% at fault, the first D is 60% at fault, and the second D is 30% at fault, the plaintiff can recover $9,000 from the first D who can then seek a $3,000 contribution from the second D). [2011]
Under joint and several liability, the entire judgment amount can be collected from who?
Rule 1573: Under joint and several liability, the entire judgment amount can be collected from any of the guilty defendants, even a defendant that is just 1% at fault. [2006]
If a plaintiff became sick after eating food at a catered event, the plaintiff must what?
Rule 1574: If a plaintiff became sick after eating food at a catered event, the plaintiff must establish that the caterer was the actual and proximate cause of the illness in order to succeed in a negligence claim. [1998]
To succeed in a negligence cause of action, a plaintiff must show what?
Rule 1575: To succeed in a negligence cause of action, a plaintiff must show that the defendant’s conduct was the cause in fact of the plaintiff’s injury and had the defendant not acted negligently, the plaintiff’s injuries would not have resulted. [1992]
To succeed in a negligence action against an attorney, a plaintiff must establish what?
Rule 1576: To succeed in a negligence action against an attorney, a plaintiff must establish that the plaintiff would have recovered in the lawsuit the attorney negligently handled, but for the attorney’s negligence. [1992]
If the combined negligent actions of two parties causes an injury, and the damages are not divisible between the tortfeasors, who is liable?
Rule 1577: If the combined negligent actions of two parties causes an injury, and the damages are not divisible between the tortfeasors, both tortfeasors are liable for all the damages, jointly and severally. [1992]
If the negligence of two different parties contributed to the plaintiff’s injury, who is responsiable for the full amount of amages?
Rule 1578: If the negligence of two different parties contributed to the plaintiff’s injury, both negligent parties are responsible for the full amount of the plaintiff’s damages. [1992]
To prove a defendant’s conduct was the “cause in fact” of the plaintiff’s injury, the plaintiff must show what?
Rule 1579: To prove a defendant’s conduct was the “cause in fact” of the plaintiff’s injury, the plaintiff must show that had the defendant not acted negligently, the plaintiff’s injuries would not have resulted. The plaintiff must also show that the defendant was the “proximate cause” of those injuries - a defendant will not be liable for the consequences that are very unforeseeable. [1992]
If a plaintiff cannot prove which of three or more persons caused his injury, but can show that all produced a defective product, the court will require what?
Rule 1580: If a plaintiff cannot prove which of three or more persons caused his injury, but can show that all produced a defective product, the court will require each of the defendant’s to pay that percentage of plaintiff’s injuries which that D’s sales bore to the total market sales of that type of product at the time of injury. [1992]
If more than one person is a proximate cause of a plaintiff’s harm, and the harm is indivisible, who is liable for the harm and to what extent?
Rule 1581: If more than one person is a proximate cause of a plaintiff’s harm, and the harm is indivisible, each defendant is liable for the entire harm. [1992]
A joint venture is defined as: (4 requ)
Rule 1585: A joint venture is defined as: (1) an agreement among members of a group; (2) a common purpose to be carried out by the group;(3) a community of pecuniary interest in that purpose; and (4) an equal right to a voice in the direction of the enterprise. [1991]
Under the traditional rules of landowners’ and occupiers’ liability, a trespasser assumes all risks of the conditions which may be found and a landowner/ landlord/ possessor only owes the trespasser a duty to avoid willful or wanton injury, BUT exceptions exist if what?
Rule 1586: Under the traditional rules of landowners’ and occupiers’ liability, a trespasser assumes all risks of the conditions which may be found and a landowner/ landlord/ possessor only owes the trespasser a duty to avoid willful or wanton injury, BUT exceptions exist if the trespasser has been discovered or the trespass is frequent and reasonably anticipated (e.g. if a neighbor is aware of hunters on the land next door but chooses to trespass across the property as a short-cut, if the neighbor is injured by a gunshot, under the common law, the landowner next door is NOT liable for the neighbor’s injury on his land). [2019]
A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person ONLY if the plaintiff:
Rule 1587: A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person ONLY if the plaintiff: (1) was closely related to the victim; (2) was present at the scene of the injury- producing event and was aware the event was causing the injury; and (3) suffers serious emotional harm. However, there are two exceptions where a plaintiff may recover for NIED notwithstanding these rules: (1) a plaintiff may recover damages for mental distress caused by the negligent handling of the corpse of a close relative despite not witnessing it; and (2) a plaintiff may recover damages when mistakenly informed of the death of a close relative (e.g. if P hires a funeral home to handle the burial of P’s late husband, but due to negligence, the funeral home buries the husband in the wrong grave, P may recover for pure emotional distress, even if P has not suffered bodily harm from the distress). [2019]
A tavern or liquor vendor is not an insurer of his customers’ safety, and they are generally only found liable if what?
Rule 1588: A tavern or liquor vendor is not an insurer of his customers’ safety, and they are generally only found liable if they sell alcohol to someone obviously intoxicated or to a minor (e.g. if an intoxicated person enters a bar and is refused service, there is no further duty to monitor any subsequent activities of the person, absent some specific threat or some other basis from which danger may be reasonably anticipated). [2017]
bystander can recover for negligent infliction of emotional distress under the zone of danger rule if what?
Rule 1589: A bystander can recover for negligent infliction of emotional distress under the zone of danger rule if the bystander can prove that he or she was placed in a zone of danger of imminent physical impact, reasonably feared for his or her safety, and as a consequence, suffered severe emotional distress (e.g. if a plaintiff narrowly escapes getting hit by a car when the car runs over and kills a stranger and the plaintiff sues the driver for the resulting depression and physical symptoms under a claim of negligent infliction of emotional damage, the plaintiff’s strongest argument against the defendant’s assertion that the plaintiff’s emotional distress are not compensable is that the plaintiff was in the zone of danger since he was under a direct physical threat from the driver’s negligence - the bystander does NOT need be a close relative of the stranger who was killed because he himself was in the zone of danger and suffered physical symptoms). [2013]
A landlord can be held liable for dog- bite injuries from a vicious dog belonging to a tenant if what?
Rule 1590: A landlord can be held liable for dog- bite injuries from a vicious dog belonging to a tenant if the landlord knew of the dog’s vicious propensities when the premises were leased to the tenant, BUT if the landlord does not have any notice of a tenant’s dog’s vicious propensities, the landlord will not be found liable if the tenant’s dog injures a tenant’s guest. [2008]
: If the owner of a store hires a construction company to design and build an entryway in a common area, the owner is still liable if what?
Rule 1591: If the owner of a store hires a construction company to design and build an entryway in a common area, the owner is still liable if the entryway is defective because work in common areas accessible to the public generally places a non-delegable duty on the part of the owner. [2008]
If a witness to an accident is not in the zone of danger, the bystander can never recover for NIED unless what?
Rule 1592: If a witness to an accident is not in the zone of danger, the bystander can never recover for NIED unless the bystander suffers physical harm or the bystander is a close relative (e.g. parents, siblings, children, grandparents or relatives residing in the same household) of the injured person. [2008]
No claim for emotional distress exists when a defendant negligently causes property loss to the plaintiff - the plaintiff can only sue for
Rule 1593: No claim for emotional distress exists when a defendant negligently causes property loss to the plaintiff - the plaintiff can only sue for negligence. [1998]
A landowner will not be held liable for a trespasser’s injuries if what?
Rule 1594: A landowner will not be held liable for a trespasser’s injuries if the landowner was unaware of the trespasser’s presence or took reasonable steps to prevent the injury after becoming aware of the trespasser’s presence. [1998]
When may a landowner use excess force to deter trespassers?
Rule 1595: A landowner can never use excessive force to deter trespassers from entering onto the landowner’s property. [1998]
A person who is negligent will not be found liable for an intervening act stemming from the negligence if what?
Rule 1596: A person who is negligent will not be found liable for an intervening act stemming from the negligence if the intervening act was not foreseeable. [1998]
A tortfeasor is liable for all damages that his negligence was the proximate cause, even when the subsequent negligence of other tortfeasors causes additional damages, so long what?
Rule 1597: A tortfeasor is liable for all damages that his negligence was the proximate cause, even when the subsequent negligence of other tortfeasors causes additional damages, so long as the damages were a proximate consequence of the first tortfeasor’s negligence. [1998]
Under the Attractive Nuisance doctrine that pertains to child trespassers, where a landowner knows or should know that artificial conditions on the land are likely to attract children onto the land who would be unable to appreciate the danger, WHAT DUTY does the landowner have?
Rule 1599: Under the Attractive Nuisance doctrine that pertains to child trespassers, where a landowner knows or should know that artificial conditions on the land are likely to attract children onto the land who would be unable to appreciate the danger, the landowner has a duty to make the condition safe, especially if it can be done at a moderate cost. [1992]
: If a dinner guest asserts a claim against a host for food poisoning, the host will only be held liable if what?
Rule 1600: If a dinner guest asserts a claim against a host for food poisoning, the host will only be held liable if the host was negligent. [1992]
For negligence and strict liability, may you recover pure economic damages ?
Rule 1602: For negligence and strict liability, you cannot recover pure economic damages only. [1992]
What is a defense to neglience?
Rule 1603: A defense to negligence is that you could not reasonably foresee that the damage or injury would occur. [1992]
An injured party will fully recover in tort if what?
Rule 1604: An injured party will fully recover in tort if intervening causes contribute to produce the injury and the plaintiff is not at fault. [1992]
In order to recover for negligent infliction of emotional distress, a plaintiff would have to show
Rule 1606: In order to recover for negligent infliction of emotional distress, a plaintiff would have to show physical manifestations of the distress in absence of a physical impact on the plaintiff. [1991]
What type of damages can you recover under negligence and strict liability?
Rule 1607: For negligence and strict liability, you can recover property damages only. [1991] Rule 1608: For negligence and strict liability, you can recover pure economic damages if you also have property damages or personal injuries. [1991]
Sovereign immunity does not attach to non-delegable duties that are what?
Rule 1609: Sovereign immunity does not attach to non-delegable duties that are proprietary in nature (e.g. where a city supplies water, gas, electricity, or operates a ferry, dock, airport, or public market). [1991]
What is a A superseding cause?
Rule 1610: A superseding cause is an unforeseen intervening cause which relieves the defendant from liability for his antecedent negligence because the superseding event becomes the proximate cause of the plaintiff’s injuries. [1991]
What is proximate cause?
Rule 1613: Proximate cause is a cause that is legally sufficient to result in liability. A defendant is liable for all harmful acts that are the normal incidents of and within the increased risk caused by his acts, BUT unforeseen conduct not within the increased risk created by the negligence is a superseding cause that breaks the causal connection. [1991]
NIED requires that the Defendant’s conduct create what (2 req)
Rule 1614: NIED requires that the Defendant’s conduct create a (1) foreseeable risk of physical injury to the Plaintiff, and the (2) emotional distress caused by the conduct also resulted in physical injury to the Plaintiff. [1991]
: Superior knowledge of a dangerous condition by itself, in absence of duty, is insufficient to establish liability, unless there is a special relationship - in determining whether or not a defendant owes the plaintiff a duty of care, courts will look at: (5 requir)
Rule 1617: Superior knowledge of a dangerous condition by itself, in absence of duty, is insufficient to establish liability, unless there is a special relationship - in determining whether or not a defendant owes the plaintiff a duty of care, courts will look at: (1) whether D has custody of P; (2) whether P is not able to determine his own actions; (3) whether there is a financial relationship between the parties; (4) whether P expects protection from D; and (5) actual knowledge of a dangerous condition may impose a duty. [2019]
