Torts Flashcards
Elements of a Prima Facie Tort
1) intentional lawful act by the defendant without sufficient justification
2) an intent to cause injury to the plaintiff
3) injury to the plaintiff
Elements of a Negligence
1) Duty
2) Breach of Duty
3) Actual Cause
4) Proximate Cause
5) Harm
Standard of Care (Adult)
standard of care required is always reasonable care, unless there is a special reason why you don’t have to; objective standard–>reasonably prudent person under similar circumstances
Traditional rule of duty
Duty is an issue of law for a judge to decide
flexible approach to duty
Duty is a factual issue for the jury to decide. Consider 1) relationship between the people, 2) foreseeability of the harm, 3) defendant’s ability to prevent the harm
General Rule for Duty
defendant has a duty to exercise the care of a reasonable person with the same characteristics as the defendant
Exceptions to Duty
Physical Disability, Emergency Doctrine, Intoxication, Professionals, Children, Children participating in Adult Activities (driving)
MO Rule for Duty
one does not owe duty to help, protect, or control others except where a special relationship or special facts and circumstances are present
Malfeasance
unlawful or intentionally wrongful act
Misfeasance
a legitimate act done in a wrongful manner
Nonfeasance
failure to act
Special Relationships
- common carrier/passenger
- innkeeper/guest
- business/customer
- employer/employee
- school/student
- landlord/tenant
- custodian/ward
- landowner holding land open to the public
- mental health professional/patient
Have a duty if:
- special relationship
- voluntary assumption of a duty
- botched rescue
- creation of risk
- statutes
Exceptions to Standard of Care
- adults with mental disabilities
- voluntary intoxication
- children participating in adult activities
Level of care must be proportionate to the danger involved
- was it reasonable to do the activity?
2. was it done it a reasonably careful way?
Negligent Entrustment
occurs when a defendant supplies a chattel to another with actual or constructive knowledge that the recipient will likely use the chattel in a manner that results in an unreasonable risk of harm
Dram Shop Liability
business owner is liable for injuries caused by an intoxicated person if the business is responsible for causing the person to become intoxicated illegally
Common law Rule for Dram Shop Liability
providing alcoholic beverages is not the proximate cause
Firefighter’s Rule
precludes tort recovery by public safety officers who are injured in the line of duty in an emergency
MO Firefighter’s Rule
does not bar claims concerning negligent acts that are separate and independent from the negligence that created the emergency
Duty to Trespasser
no duty
Duty to Licensee
duty to make safe dangers of which the possessor is aware
Duty to Invitee
duty to exercise reasonable care to protect them against both known dangers and those that would be revealed by inspection
Attractive Nuisance (MO)
possessor of land owes a duty of care to child trespassers for a dangerous artificial condition maintained at a place on the land where the children are likely to trespass
Hard-by Rule:
a possessor of land is liable for creating an artificial condition so close to a public street that it involves an unreasonable risk to children who deviate from the roadway and trespass
Learned Hand Approach
act is negligent if the risk outweighs what the law regards as the utility of the act or of the particular manner in which it is done
Learned Hand Formula
Liability=B
Negligent Infliction of Emotional Distress (modern)
- defendant should have realized his conduct involved an unreasonable risk of causing emotional distress
- distress was severe enough to be medically diagnosable and medically significant (MO)
Negligent Infliction of Emotional Distress (traditional)
emotional harm must be accompanied by physical injury (KS)
Steps to Determine Actual Cause
- identify the harm
- identify the negligence
- but-for test
Actual cause
cause in-fact or factual cause
causation in fact
but-for causation
But-for causation
Primary test; harm wouldn’t have occurred but for the defendant’s negligence
Duplicative Causation
two fires, substantial factor, multiple sufficient causes–>more than one would individually be sufficient to cause the harm
Preemptive Cause
prevents other later things from being the actual cause
Alternative Liability
- group of defendants
- who all acted negligently
- one or more, but not all, caused the harm (if al caused, use 2 fires)
- plaintiff cannot determine who caused the harm
- everyone who caused the harm is a defendant
Alternative Liability Burden of Factual Casation
Shifted to defendants, creates a presumption of guilt
Lost Chance Rule
a showing that an injured party was deprived of a significant chance of avoiding harm constitutes sufficient evidence of causation; Under a lost chance theory, there is a proportional recovery, even if the odds of causation are below 50 percent.
MO: minuscule chances are not recoverable
All-or-Nothing Rule
traditional rule/ either fully liable or not liable at all; plaintiff may recover damages only by showing that the defendant’s negligence, more likely than not, caused the ultimate outcome
Proximate Cause
reasonable connection between an act or omission of a defendant and the harm suffered; must be within the scope of risk created by defendant’s conduct or was reasonably foreseeable
Scope of Liability/Risk Standard
an actor’s liability is limited to those physical harms that result from the risk that that made the actor’s conduct tortious; prevent unjust imposition of liability
Actor’s conduct is the proximate cause when:
- his conduct is a substantial factor in bringing about the harm
- no rule relieving the defendant of liability
- harm is caused by an intervening act within the scope of risk created or intervening act is reasonably foreseeable
Foreseeability Test
common approach; defendant is liable for all general kinds of harm he foreseeably risked by his negligent conduct and to the class of persons he put at risk by that conduct
Elements that Foreseeability Affects
Duty, Breach, Proximate Cause
MO Approach-Foreseeability Test
harm must be the natural and probable consequence–>look back test
How can a defendant escape liability under foreseeability test?
can only escape if the damage can be regarded as differing in kind from what was foreseeable
Foreseeability Special Rules
- Suicide is not foreseeable
- Rescues are always foreseeable (only applies to persons not property in MO)
- Subsequent accidents/disease/med. mal. is always foreseeable
- thin skull rule
Negligence Per Se
an act is negligent by definition
Municipal Cost Recovery Rule
governments cannot use tort law to recover costs of providing public services
Negligence Per Se Exceptions
- childhood, physical disability or incapacitation
- exercises reasonable care in an attempt to comply
- unaware of conditions making statute applicable
- statute is confusing
- compliance requires a greater risk than noncompliance
Negligence Per Se does not apply if:
- the plaintiff in violation of the statute was not in the class of persons designed to be protected
- the type of harm that occurred was not one which the statute was designed to prevent
MO Elements of N.P.S.
- defendant violated a statute.
- the injured plaintiff was a member of the class of persons intended to be protected by the statute
- injury complained of was the kind the statute was designed to prevent
- the violation of the statute was the proximate cause
Res Ipsa Loquitur
allows plaintiff to have a chance to win based on circumstantial evidence of negligence; unable to prove WHAT happened
Res Ipsa Loquitur Elements (traditional):
MO approach;
- Occurrence does not usually happen if those in charge use due care
- Instrumentalities involved were under the management and control of the defendant
- defendant possesses superior knowledge or means of information as to the cause of the occurrence
Res Ipsa Loquitur Elements (modern):
- harm suffered is most likely caused by the negligence of someone (not nature)
- more likely than not that it was the defendant’s negligence
- plaintiff was not at fault/plaintiff cannot determine what happened
Cannot bring Res claim if:
- there is a complete explanation
2. evidence was available but plaintiff chose not to obtain it or chose to ignore it
Compliance with appropriate regulations is…
evidence of due care, but is not dispositive
If a person acted in the customary ways…
is a relevant consideration, but not a dispositive one
Negligence as a matter of law
- judge decides there was negligence bc no reasonable jury could reach any other conclusion
- made a rule that a particular type of conduct is always negligent
Violation of a statute…
is negligent per se
Is the defendant liable if the harm was greater than what was foreseeable?
Yes, do not need to be able to foresee the amount or know the exact chain of causation, just the certain type of harm
Must prove the negligence caused the plaintiff to…
suffer actual harm
Sufficiency of evidence
- Is the evidence sufficient to support an inference of negligence?
- Is the evidence sufficient to support an inference that the negligence was the defendant’s?
Law values human life over property
odds of danger to human life vs. danger of damage to property
Critique of Learned Hand Theory
formula assumes proposed safety measures eliminate entire risk
Approaches to Premises Liability
- balancing (cost vs. risk)
- totality of circumstances (consider everything)
- prior/similar incident (knew or should have known about similar incidents)
- specific harm (operated in a way that attracted criminals or knew of imminent danger)
