Torts Flashcards
Elements of Negligence (44%)
A claim for common law negligence requires:
(1) a duty of reasonable care, acting as the reasonable prudent person under the same or similar circumstances;
(2) breach of that duty;
(3) cause-in-fact (actual cause), meaning that but for the negligence the damage would not have occurred;
(4) proximate cause (legal cause), meaning that the damage occurred to a foreseeable plaintiff within the zone of danger; and
(5) actual damages. The plaintiff must prove the elements by a preponderance of the evidence.
Reasonable Person Standard (16%)
a) The standard of care owed by the defendant to the plaintiff is that of a reasonably prudent person under the circumstances as measured by an objective standard. The defendant is presumed to have average mental abilities and knowledge.
b) Physical Disabilities. Particular physical disabilities may be taken into account (e.g., blindness, deafness, etc.). E.g., the standard of care for a blind person would be that of a reasonably prudent blind person under the circumstances as measured by an objective standard.
c) Intoxication. Intoxicated people are held to the same standard as sober people UNLESS the intoxication was involuntary.
d) Community Customs. Community customs may be relevant in determining reasonableness, but they are NOT dispositive.
e) NOTE. The reasonable person standard is the default standard of care. It should be applied unless a special standard of care applies (e.g., children, professionals, physicians, landowners, negligence per se, etc.).
Negligence Per Se (16%)
a) When a statute imposes upon any person a specific duty for the benefit or protection of others, a violation of the statute will constitute negligence per se if the plaintiff:
(1) Is in the class of people meant to be protected by the statute; AND
(2) Suffers the type of harm the statute was designed to protect against.
b) The defendant will only be liable under negligence per se if his violation of the statute
was the proximate cause of the plaintiff’s injury.
c) NOTE. If a statute is given to you in the fact pattern of a torts essay question, you MUST
discuss negligence per se as the applicable standard of care.
Eggshell Plaintiff Rule (12%)
Under the eggshell plaintiff rule (“take your victim as you find him rule”), the defendant is liable for ALL harm suffered by the plaintiff, even if the plaintiff suffered from an unforeseeable, preexisting mental or physical condition that aggravates the harm.
Respondeat Superior (24%)
a) Under the doctrine of respondeat superior, an employer (principal) may be liable for torts committed by an employee (agent) if:
(1) An employer-employee relationship exists (NOT an independent contractor relationship); AND
(a) In determining whether an employer-employee relationship exists, the most important consideration is the extent of control that the principal exercises over the details of the agent’s work (the more control the principal exercises over the agent, the higher the likelihood that the agent will be considered an employee as opposed to an independent contractor).
(2) The employee’s commission of the tort occurs within the scope of employment.
(a) Activity is within the scope of employment when the employee’s conduct is of the same general nature as that authorized, or incidental to the conduct authorized by the employer. In making this determination, courts examine whether the employee’s conduct was:
(i) A function for which the employee was hired to perform;
(ii) Within the employer’s authorized time and space limits;
(iii) Conducted to serve the employer; AND
(iv) Foreseeable to the employer.
b) The employer remains liable during an employee’s detour (i.e., a minor deviation from the scope of employment), even if the detour is mainly for the employee’s own personal reasons. However, the employer does NOT remain liable during an employee’s frolic (i.e., a major deviation from the scope of employment).
c) Generally, employers are NOT liable for the intentional torts of employees UNLESS:
(1) The intentional tort was authorized by the employer; OR
(2) Force is within the scope of employment in the employee’s work (e.g., security guards).
Comparative Fault (12%)
In a comparative fault jurisdiction, the plaintiff’s own negligence limits recovery but is NOT necessarily a complete bar to recovery. Jurisdictions have adopted two different approaches to comparative fault:
(1) Pure Comparative Negligence. Under pure comparative negligence, the plaintiff’s recovery is limited by the percentage of fault the jury attributes to the plaintiff’s own negligence (e.g., if the jury finds the plaintiff is 95% at fault, the plaintiff can recover 5% of her damages).
(2) Modified Comparative Negligence. Under modified comparative negligence, the plaintiff’s recovery is limited by the percentage of fault the jury attributes to the plaintiff’s own negligence. HOWEVER, if the plaintiff is MORE at fault than the defendant, the plaintiff’s recovery is completely barred.
(a) For Example: If the jury finds the plaintiff is 51% at fault, the plaintiff is completely barred from recovery. However, if the jury finds that the plaintiff is 50% at fault, the plaintiff can recover 50% of her damages.
(b) In some jurisdictions, if the plaintiff and defendant are equally at fault, the plaintiff’s recovery is completely barred (e.g., if the jury finds the plaintiff is 50% at fault, the plaintiff’s recovery is completely barred).
Strict Liability (16%)
Under strict liability, a defendant will be liable for damages REGARDLESS of how careful they were (i.e., negligence is NOT required to be held liable). Generally, there are three categories of strict liability:
(1) Animals; (2) Abnormally dangerous activities; AND (3) Defective products.
Products Liability: Generally (12%)
A strict liability claim under products liability requires the plaintiff to show:
(1) The product was defective in manufacture, design, or failure to warn; (2) The defect existed when the product left the defendant’s control; AND (3) The defect caused the plaintiff’s injury when the product was used in a foreseeable way.
Products Liability: Manufacturing Defects (12%)
A defect in manufacture requires the plaintiff to show that the product:
(1) Deviated from its intended design; AND (2) Fails to conform to the manufacturer’s own design.
Products Liability: Design Defects (12%)
There are two tests for a defect in design:
(1) Under the consumer expectation test, the plaintiff must show that the product is less safe than the ordinary consumer would expect. (2) Under the risk-utility test, the plaintiff must show that the product’s risks outweigh its benefits AND that there is a reasonable alternative design.
Products Liability: Failure to Warn (12%)
A failure to warn defect requires the plaintiff to show:
(1) The plaintiff was NOT warned of the risks regarding the use of the product; (2) The risks are NOT obvious to an ordinary user; AND (3) The designer/manufacturer was in fact aware of such risks.
Scope of Products Liability (12%)
Plaintiffs. Any person foreseeably injured by a defective product (e.g., purchasers, other users, bystanders, etc.) may pursue a products liability claim.
Defendants. A strict liability claim under products liability may ONLY be brought against a merchant (i.e., a person or entity who routinely deals in goods of the type) who is in the chain of distribution (e.g., manufacturer> wholesaler> retailer).
