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1L Fall > Torts > Flashcards

Torts Flashcards

1
Q

Hospital/patient vicarious liability

A

Therapist has a duty to exercise reasonable care to protect the foreseeable, identifiable victim if they have real or constructive knowledge of a serious threat to danger

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2
Q

Joint enterprise

A

(1) An agreement (express or implied) among the members of a group, (2) a common purpose to be carried out by the group, (3) a common financial interest in that purpose, and (4) equality in running the enterprise

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3
Q

Liability of employees for independent contractors

A

Employer liable for non-delegable duties and apparent authority (employer implied that contractor is an employee)

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4
Q

Liability for intentional torts of employees

A

Only liable if employee thought they were doing the bidding of the employer

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5
Q

Frolic & detour rule

A

Employer liable for actions of employees during detours, but not frolics

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6
Q

Going-and-coming rule

A

Employee going to/from work is not in the scope of his employment, except if the employer created a dangerous condition that forced the employee to go home

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7
Q

Respondeat superior

A

Employer is liable for injuries caused by employees in the course of their work

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8
Q

Vicarious liability

A

(1) Risk of harm was foreseeable, and (2) eventual defendant had a special relationship with either the person who inflicted the harm or the victim

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9
Q

Failure to Act

A

An individual has a duty to act if (1) they caused the danger, (2) they started the rescue, or (3) there is a special relationship

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10
Q

Thing test (Restatement replacement for NIED zone of danger)

A

(1) Bystander perceived the event contemporaneously and (2) is a close family member of the injured person

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11
Q

Ordinary NIED bystander test

A

(1) physical proximity - must be present at the scene, (2) relational proximity - closely related by blood or marriage, (3) temporal proximity - suffers damage more serious than a regular person would suffer

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12
Q

Zone of danger test (NIED)

A

Bystander can recover if (1) the defendant’s negligence placed them in a situation where they barely escaped physical danger and (2) the plaintiff suffered serious emotional distress as a result; (some states include 3) the plaintiff must show distress resulted in visible physical symptoms

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13
Q

NIED

A

(1) objective physical manifestation of distress, (2) person of ordinary sensibilities could have suffered that kind of distress, (3) distress is severe, (4) physical harm is a natural result of the fright

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14
Q

Rescue doctrine

A

Defendant is liable to rescuer if (1) defendant was negligent to person being rescued, (2) danger was imminent, (3) a reasonable person would have perceived that someone was in imminent danger, and (4) the rescuer acted reasonably during the rescue

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15
Q

Risk/utility analysis for attractive nuisance considers

A

(1) The character and location of the premises, (2) the social utility of the activity, (3) the probability of injury, (4) whether more precautions would infringe on the utility of the activity

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16
Q

Attractive nuisance

A

(1) Artificial condition, (2) defendant knew or should have known the condition involved danger, (3) defendant had reason to know that children will trespass, (4) because of their age, this particular child failed to discover the danger or risk involved, (5) the benefit of keeping the hazard and const of removing it are slight compared to the risk to children

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17
Q

Landlord duty to protect from criminal activity

A

Only have duty to minimize the predictable risks of harm if they’re aware of criminal activity; may have issues of causation and proximate cause

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18
Q

Lessor/lessee duty

A

Trend is to give landlord a duty to exercise ordinary care in maintaining the premises; traditionally, lessee had duty of maintaining the premises in a reasonably safe condition

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19
Q

Duty of public landowner

A

Owes persons on the premises a duty to use reasonable care to keep the premises safe

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20
Q

Elements of negligence towards an invitee

A

(1) Actual or constructive notice of the condition, (2) condition was an unreasonable risk of harm, (3) duty to exercise reasonable care was breached, (4) danger/injury were caused by failure to exercise due care

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21
Q

Landowner duty to invitees

A

Duty to conduct activities with reasonable care to avoid injuring invitees; must take steps to avoid injury if they have actual or constructive notice of a hazard

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22
Q

Landowner duty to licensees

A

Duty to warn of hidden danger known to the landowner

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23
Q

Landowner duty to trespassers

A

No duty to trespassers except (1) duty to not injure discovered trespassers by active operations, (2) duty to warn discovered trespassers of hidden artificial dangers they would not discover, (3) duty to exercise reasonable care for protection of frequent trespassers on a limited area of land

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24
Q

Landowner liability outside the premises

A

Only have duty if (1) landowner has actual or constructive notice that a condition was likely to cause a danger and failed to take reasonable precautions, (2) landowner had actual or constructive notice that current precautions are insufficient, and (3) unreasonable risk of harm from manmade (artificial) conditions

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25
Q

Violation of a statute is excused if

A

(1) Obeying the law would create a greater danger, (2) emergency made it impossible to obey the law, (3) defendant reasonably tried to obey but couldn’t, (4) defendant was incapable of obeying the law, and (5) defendant was incapable of understanding what the law required

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26
Q

Factors considered in whether violation of statute is negligence per se

A

(1) Absence of a common law duty to act, (2) clarity enough to put the public on notice, (3) applying negligence would create strict liability, (4) negligence per se would impose ruinous liability disproportionate to the seriousness of the conduct, (5) the injury was caused by the statutory violation

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27
Q

Negligence per se applies when…

A

(1) There was a failure to perform a statutory duty, (2) the plaintiff was injured and is a member of the class the statute was imposed to protect, (3) the plaintiff’s injury was of the type the statute was created to prevent, and (4) the injury was proximately caused by the neglect

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28
Q

Patient standard v. professional standard

A

Patient: what a reasonable person would want to know; professional: what a reasonable physician would reveal (including personal interests that may affect the physician’s professional judgment)

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29
Q

Informed consent elements

A

(1) Failure to disclose material risks/alternative treatments (2) caused (3) injury or damage from provided treatment (undisclosed risk must materialize)

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30
Q

Legal malpractice factors

A

(1) Knowledge ordinarily possessed by attorneys in good standing within the profession, (2) exercise best judgment, (3) use of due care, (4) causation (but for negligence of lawyer, plaintiff more likely than not would have won)

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31
Q

Professional standard of care

A

Duty to exercise care of a reasonably prudent professional exhibiting the knowledge and skill possessed by the ordinary member of the profession in good standing in (locality rule)

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32
Q

Exceptions to ordinary standard of care

A

Emergency, additional ability, children (like age, intelligence, and experience except for unusually dangerous activities normally undertaken by adults), persons with physical disabilities

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33
Q

Ordinary standard of care

A

Reasonably prudent person under the same or similar circumstances

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34
Q

Negligence formula

A

(1) Duty, (2) breach, (3) causation/proximate cause, (4) damage

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35
Q

Role of custom in breach

A

May be evidence of what would be reasonable under the circumstances, but doesn’t prove breach

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36
Q

Res ipsa loquitur elements

A

(1) Plaintiff’s harm doesn’t ordinarily happen without negligence, (2) more likely than not, it was the defendant’s actions that caused the injury, and (some states - 3) plaintiff’s voluntary action did not cause or contribute to the injury

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37
Q

B<p></p>

A

Liability depends on whether the burden of precautions to reduce or eliminate the risk of harm (B) is less than the probability/foreseeability that the harm will occur (P) combined with the foreseeable severity of the harm (L)

38
Q

Superseding cause

A

Cause was an extraordinary act under the circumstances and breaks the chain of causation

39
Q

Duty-risk approach

A

Look at if the defendant had a duty to protect this plaintiff from these types of harm

40
Q

Harm within the risk

A

Liability is limited to harms that result within the risks that made the actor’s conduct tortious in the first place (looks similar to B<p></p>

41
Q

Foreseeability rule

A

People should only be responsible for the reasonable, foreseeable consequences of their actions (replaces Polemis direct consequence principle of liability for unforeseeable consequences)

42
Q

Proximate/legal cause removes liability when…

A

(1) Negligence is too remote, (2) injury was not a foreseeable harm within the risk that made the conduct negligent, (3) the defendant had no duty to protect that plaintiff from this type of injury, or (4) there was a superseding cause that broke the chain of causation

43
Q

Loss of chance theory

A

Plaintiff can recover the value of the chance of a cure that the doctor negligently destroyed or eliminated (in some jurisdictions)

44
Q

Market share liability theory

A

When you sue a substantial share of the market, the burden shifts to the defendants to show that they did not produce the product that caused the injury; each defendant is only liable for its percentage of their sales in the national market

45
Q

Unascertainable causes

A

Burden shifts to defendant if it can’t be determined which negligent defendant was responsible for the harm

46
Q

Concert of action

A

When multiple persons conducted the activity that resulted in the harm, (1) parties whose actions combined are liable if they were a substantial factor in producing the harm, (2) parties whose actions alone couldn’t have caused the harm are both “but-for” causes and both liable

47
Q

Sine qua non

A

More likely than not, “but for” the negligent conduct the harm would not have occurred

48
Q

Economic loss rule

A

Cannot sue for negligence resulting in pure economic loss, but can if economic loss is accompanied by physical damage

49
Q

Joint and several liability

A

Because each party’s actions would have been a factual cause in absence of the other’s act, each can be held liable for the whole amount or separately liable

50
Q

Eggshell/thin skull doctrine

A

Defendant takes the plaintiff as they find him

51
Q

Types of comparative negligence

A

(1) pure, (2) 49% modified - less negligent than defendant, (3) 50% modified - not more negligent than defendant

52
Q

Implied assumption of risk

A

Plaintiff (1) had actual knowledge of the risk, (2) appreciated the magnitude of the risk, and (3) willingly encountered the risk

53
Q

Contributory negligence

A

Failure of plaintiff to use proper care completely bars recover; doesn’t apply to intentional torts or cases where the defendant was reckless (engaged in willful and wanton conduct)

54
Q

Comparative negligence for nuisance

A

Only allowed for negligent nuisance

55
Q

An activity is a nuisance if…

A

(A) The gravity of the harm outweighs the utility of the conduct or (B) the harm is serious and the financial burden of compensating for this would not make the continuation of the conduct unfeasible

56
Q

Private nuisance

A

Unreasonable interference with the use or enjoyment of another’s land

57
Q

Public nuisance

A

Unreasonable interference with a right of the community at large

58
Q

Nuisance per accidens

A

Something that becomes a nuisance because of its location or the manner in which it is constructed/operated/maintained

59
Q

Nuisance per se

A

Something that is a nuisance at all times and under any circumstances (usually illegal)

60
Q

Assumption of risk for strict liability

A

Merged into comparative negligence calculus

61
Q

Superseding cause for strict liability

A

No strict liability for acts of god (vis major) or actions of a third party over whom the defendant has no control

62
Q

Abnormally dangerous activities

A

Only strictly liable for harms resulting from that which makes the activity abnormally dangerous

63
Q

An activity is abnormally dangerous if…

A

(1) The harm is very foreseeable and (2) resulting injury would be highly significant, (3) injury could not be avoided by the use of reasonable care, and (4) the activity is not one of common usage

64
Q

Liability for domestic animals

A

Owner liable if they knew or should have known of the animal’s vicious propensities

65
Q

Liability for trespassing farm animals

A

Depends on the jurisdiction: (1) Strict liability, (2) strict liability with affirmative defense that plaintiff did not fence out, (3) negligence

66
Q

Liability for wild animals

A

Owner strictly liable unless they display wild animals to the public (like zoos)

67
Q

Product liability for wholesalers and retailers

A

Restatement holds them strictly liable but some jurisdictions limit liability to negligence

68
Q

Products liability for used products

A

Strict liability doesn’t apply; some states impose liability if the used good seller knew or should have known of the defect and did not warn

69
Q

Comparative negligence for products liability

A

Is an admissible defense; foreseeable misuse can be considered

70
Q

Assumption of risk for products liability

A

The danger must have been obvious for the plaintiff to have assumed the risk

71
Q

Contributory negligence for products liability

A

Only applicable if the plaintiff continued to use the product after knowing of the defect

72
Q

Adequate warnings must…

A

(1) Readily catch user’s attention, (2) be understandable, (3) indicate the nature of the danger, (4) be sufficiently conspicuous to match the magnitude of the danger

73
Q

Warning defects/failure to warn

A

(1) Foreseeable risks of harm posed by the product (2) could have been avoided or reduced by adequate warning and (3) the omission of the warning renders the product unsafe; based on negligence

74
Q

Open and obvious danger for unavoidably unsafe products

A

Part of the risk/utility analysis; usually a factor but not a complete bar to recovery

75
Q

Consumer expectation test for design defects

A

Product is defective when it fails to meet an ordinary consumer’s reasonable expectations of safety

76
Q

B<p></p>

A

An alternative design is reasonable if the burden to adopt it is less than the probability of injuries with the current design multiplied by the magnitude of the injures with the current design

77
Q

Inherently dangerous products of very low social utility

A

Public policy argues against these existing

78
Q

Design defect

A

(1) The foreseeable risk of harm could have been reduced by a RAD and (2) the omission of the RAD renders the product not reasonably safe; looks somewhat like negligence

79
Q

Manufacturing defect

A

Product not made according to specifications; strict liability applies

80
Q

Products liability elements

A

(1) Defendant was a merchant, (2) product was defective, (3) defect caused the injuries, (4) the product wasn’t altered since leaving defendant’s control, and (5) plaintiff was making a foreseeable use of the product

81
Q

False light

A

(1) Widespread publication of (2) false facts about the plaintiff that (3) would be highly objectionable to a reasonable person

82
Q

Publication of private facts

A

(1) Publication (2) to a substantial amount of people of (3) private facts (4) that would be highly offensive to a reasonable person (5) and are not a matter of public concern

83
Q

Intrusion into private space

A

(1) Intentional (2) intrusion into private space (3) in a manner that would be highly offensive to a reasonable person

84
Q

Appropriation/Right of publicity

A

(1) Use of another’s name or likeness (2) for one’s own purpose or benefit (3) that causes (4) damages to the plaintiff

85
Q

Defamation: Private concern with private plaintiffs

A

Damages may be presumed

86
Q

Defamation: Public concern with private plaintiffs

A

Must show actual damages; need to show negligence (Gertz standard) but not actual malice

87
Q

Defamation: Public concern with public plaintiffs

A

Must show actual damages and NY Times malice

88
Q

Conditional/qualified privileges for defamation

A

(1) Defending one’s own interests, (2) defending a third party’s interest if one has a moral or legal duty, (3) defending a common interest of publisher and listener, (4) fair reporting, (5) fair comment

89
Q

Absolute privileges

A

Judicial and legislative privilege; statements by government officials in the course of their official duties

90
Q

Truth defense for defamation

A

Substantial truth is also a defense; hyperbolic statements that are too unbelievable are not actionable

91
Q

Slander per se

A

Damages are presumed for defamation that alleges (1) incompetence in business, (2) serious criminal acts, (3) loathsome disease, or (4) immoral sexual behavior

92
Q

Defamation

A

(1) Publication of (2) false information that (3) injures the reputation of (4) this particular plaintiff and (5) is not privileged

1L Fall (2 decks)

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