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1L > Torts > Flashcards

Torts Flashcards

1
Q

Elements of a Prima Facie Tort

A

1) intentional lawful act by the defendant without sufficient justification
2) an intent to cause injury to the plaintiff
3) injury to the plaintiff

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2
Q

Elements of a Negligence

A

1) Duty
2) Breach of Duty
3) Actual Cause
4) Proximate Cause
5) Harm

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3
Q

Standard of Care (Adult)

A

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

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4
Q

Traditional rule of duty

A

Duty is an issue of law for a judge to decide

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5
Q

flexible approach to duty

A

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

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6
Q

General Rule for Duty

A

defendant has a duty to exercise the care of a reasonable person with the same characteristics as the defendant

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7
Q

Exceptions to Duty

A

Physical Disability, Emergency Doctrine, Intoxication, Professionals, Children, Children participating in Adult Activities (driving)

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8
Q

MO Rule for Duty

A

one does not owe duty to help, protect, or control others except where a special relationship or special facts and circumstances are present

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9
Q

Malfeasance

A

unlawful or intentionally wrongful act

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10
Q

Misfeasance

A

a legitimate act done in a wrongful manner

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11
Q

Nonfeasance

A

failure to act

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12
Q

Special Relationships

A
  1. common carrier/passenger
  2. innkeeper/guest
  3. business/customer
  4. employer/employee
  5. school/student
  6. landlord/tenant
  7. custodian/ward
  8. landowner holding land open to the public
  9. mental health professional/patient
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13
Q

Have a duty if:

A
  1. special relationship
  2. voluntary assumption of a duty
  3. botched rescue
  4. creation of risk
  5. statutes
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14
Q

Exceptions to Standard of Care

A
  1. adults with mental disabilities
  2. voluntary intoxication
  3. children participating in adult activities
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15
Q

Level of care must be proportionate to the danger involved

A
  1. was it reasonable to do the activity?

2. was it done it a reasonably careful way?

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16
Q

Negligent Entrustment

A

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

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17
Q

Dram Shop Liability

A

business owner is liable for injuries caused by an intoxicated person if the business is responsible for causing the person to become intoxicated illegally

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18
Q

Common law Rule for Dram Shop Liability

A

providing alcoholic beverages is not the proximate cause

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19
Q

Firefighter’s Rule

A

precludes tort recovery by public safety officers who are injured in the line of duty in an emergency

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20
Q

MO Firefighter’s Rule

A

does not bar claims concerning negligent acts that are separate and independent from the negligence that created the emergency

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21
Q

Duty to Trespasser

A

no duty

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22
Q

Duty to Licensee

A

duty to make safe dangers of which the possessor is aware

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23
Q

Duty to Invitee

A

duty to exercise reasonable care to protect them against both known dangers and those that would be revealed by inspection

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24
Q

Attractive Nuisance (MO)

A

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

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25
Q

Hard-by Rule:

A

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

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26
Q

Learned Hand Approach

A

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

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27
Q

Learned Hand Formula

A

Liability=B

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28
Q

Negligent Infliction of Emotional Distress (modern)

A
  1. defendant should have realized his conduct involved an unreasonable risk of causing emotional distress
  2. distress was severe enough to be medically diagnosable and medically significant (MO)
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29
Q

Negligent Infliction of Emotional Distress (traditional)

A

emotional harm must be accompanied by physical injury (KS)

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30
Q

Steps to Determine Actual Cause

A
  1. identify the harm
  2. identify the negligence
  3. but-for test
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31
Q

Actual cause

A

cause in-fact or factual cause

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32
Q

causation in fact

A

but-for causation

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33
Q

But-for causation

A

Primary test; harm wouldn’t have occurred but for the defendant’s negligence

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34
Q

Duplicative Causation

A

two fires, substantial factor, multiple sufficient causes–>more than one would individually be sufficient to cause the harm

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35
Q

Preemptive Cause

A

prevents other later things from being the actual cause

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36
Q

Alternative Liability

A
  1. group of defendants
  2. who all acted negligently
  3. one or more, but not all, caused the harm (if al caused, use 2 fires)
  4. plaintiff cannot determine who caused the harm
  5. everyone who caused the harm is a defendant
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37
Q

Alternative Liability Burden of Factual Casation

A

Shifted to defendants, creates a presumption of guilt

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38
Q

Lost Chance Rule

A

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

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39
Q

All-or-Nothing Rule

A

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

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40
Q

Proximate Cause

A

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

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41
Q

Scope of Liability/Risk Standard

A

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

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42
Q

Actor’s conduct is the proximate cause when:

A
  1. his conduct is a substantial factor in bringing about the harm
  2. no rule relieving the defendant of liability
  3. harm is caused by an intervening act within the scope of risk created or intervening act is reasonably foreseeable
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43
Q

Foreseeability Test

A

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

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44
Q

Elements that Foreseeability Affects

A

Duty, Breach, Proximate Cause

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45
Q

MO Approach-Foreseeability Test

A

harm must be the natural and probable consequence–>look back test

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46
Q

How can a defendant escape liability under foreseeability test?

A

can only escape if the damage can be regarded as differing in kind from what was foreseeable

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47
Q

Foreseeability Special Rules

A
  1. Suicide is not foreseeable
  2. Rescues are always foreseeable (only applies to persons not property in MO)
  3. Subsequent accidents/disease/med. mal. is always foreseeable
  4. thin skull rule
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48
Q

Negligence Per Se

A

an act is negligent by definition

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49
Q

Municipal Cost Recovery Rule

A

governments cannot use tort law to recover costs of providing public services

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50
Q

Negligence Per Se Exceptions

A
  1. childhood, physical disability or incapacitation
  2. exercises reasonable care in an attempt to comply
  3. unaware of conditions making statute applicable
  4. statute is confusing
  5. compliance requires a greater risk than noncompliance
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51
Q

Negligence Per Se does not apply if:

A
  1. the plaintiff in violation of the statute was not in the class of persons designed to be protected
  2. the type of harm that occurred was not one which the statute was designed to prevent
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52
Q

MO Elements of N.P.S.

A
  1. defendant violated a statute.
  2. the injured plaintiff was a member of the class of persons intended to be protected by the statute
  3. injury complained of was the kind the statute was designed to prevent
  4. the violation of the statute was the proximate cause
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53
Q

Res Ipsa Loquitur

A

allows plaintiff to have a chance to win based on circumstantial evidence of negligence; unable to prove WHAT happened

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54
Q

Res Ipsa Loquitur Elements (traditional):

A

MO approach;

  1. Occurrence does not usually happen if those in charge use due care
  2. Instrumentalities involved were under the management and control of the defendant
  3. defendant possesses superior knowledge or means of information as to the cause of the occurrence
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55
Q

Res Ipsa Loquitur Elements (modern):

A
  1. harm suffered is most likely caused by the negligence of someone (not nature)
  2. more likely than not that it was the defendant’s negligence
  3. plaintiff was not at fault/plaintiff cannot determine what happened
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56
Q

Cannot bring Res claim if:

A
  1. there is a complete explanation

2. evidence was available but plaintiff chose not to obtain it or chose to ignore it

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57
Q

Compliance with appropriate regulations is…

A

evidence of due care, but is not dispositive

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58
Q

If a person acted in the customary ways…

A

is a relevant consideration, but not a dispositive one

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59
Q

Negligence as a matter of law

A
  1. judge decides there was negligence bc no reasonable jury could reach any other conclusion
  2. made a rule that a particular type of conduct is always negligent
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60
Q

Violation of a statute…

A

is negligent per se

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61
Q

Is the defendant liable if the harm was greater than what was foreseeable?

A

Yes, do not need to be able to foresee the amount or know the exact chain of causation, just the certain type of harm

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62
Q

Must prove the negligence caused the plaintiff to…

A

suffer actual harm

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63
Q

Sufficiency of evidence

A
  1. Is the evidence sufficient to support an inference of negligence?
  2. Is the evidence sufficient to support an inference that the negligence was the defendant’s?
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64
Q

Law values human life over property

A

odds of danger to human life vs. danger of damage to property

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65
Q

Critique of Learned Hand Theory

A

formula assumes proposed safety measures eliminate entire risk

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66
Q

Approaches to Premises Liability

A
  1. balancing (cost vs. risk)
  2. totality of circumstances (consider everything)
  3. prior/similar incident (knew or should have known about similar incidents)
  4. specific harm (operated in a way that attracted criminals or knew of imminent danger)
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67
Q

2 Types of Control for Special Relationships

A
  1. Protective Control

2. Restraining Control

68
Q

Professional’s Duty

A

a person who has special skills is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing

69
Q

Physical Disabilities Duty

A

a person who has physical disabilities is required to exercise the care of a reasonable person with the defendant’s same physical impairments

70
Q

Intoxication Duty of care

A

Voluntary-exhibit care of a reasonably prudent person

Involuntary-exhibit care of a reasonably prudent person under the same circumstances

71
Q

Children Participating in Adult Activities

A

have duty to exercise care of a reasonably prudent person

72
Q

Emergency Doctrine

A

Exercised care that a reasonable person would have under the same circumstances; not required to act how you would absent the emergency

73
Q

Negligence

A

standard of care required is always reasonable care unless there is a special reason why you don’t have to

74
Q

In MO, at what age can a child’s conduct be deemed negligent?

A

7 years old

75
Q

Possibilities for Liability (Allocation)

A
  1. Plaintiff gets nothing
  2. pro rata
  3. allocate by severity of fault
  4. joint and several liability
76
Q

Causal Apportionment

A

divisible injury, allocate by who caused each part of the harm

77
Q

Joint and Several Liability

A

multiple tortfeasors that caused harm to the plaintiff and it is not possible to determine the particular portion of the harm caused by each, the plaintiff has the option of suing all tortfeasors or any one or any combination

78
Q

Indivisible Injury

A

both defendants caused all the harm, and it is impossible to determine which defendant caused which part of the harm

79
Q

Concerted Action

A

defendants agreed to act together; no causal apportionment, hold them liable together only if they agreed to do what made the act tortious

80
Q

Traditional Rule for Concerted Action

A

defendants who acted in concert get joint and several liability

81
Q

Rule for Indivisible Injuries (Landers v. East Texas)

A

Where the tortious acts of two or more wrongdoers join to produce an indivisible injury with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages.

82
Q

Joint and Several Liability to the Plaintiff (Alabama)

A

plaintiff can choose to recover full amount from any defendant

83
Q

Joint and Several Liability to Plaintiff and contribution claims based on pro rata split (MD, NC, VA)

A

plaintiff can choose to recover full amount from any defendant; that party (defendant) can then bring cross claims, third-party claims, or separate suits later against the others for their share of fault

84
Q

Joint and Several Liability to Plaintiff and Contribution Claims Based on Shared Fault

A

each amount defendant pays is equal to her percentage of fault; can still have one defendant left on the hook for everything

85
Q

Each defendant is liable for own share of fault

A

No contribution claims

86
Q

Joint and Several Liability in MO

A

If the defendant is found to be 51% or more at fault, the defendant shall be severally and jointly liable; if less than 51%, the defendant is only responsible for the percentage of responsibility the jury finds them to be liable for

87
Q

Contributory Negligence (Butterfield v. Forrester)

A

plaintiff cannot recover if the plaintiff’s own negligence contributed to causing the injury

88
Q

Doctrine of Last Clear Chance

A

where a plaintiff negligently got himself into a position of peril from which he was then helpless to save himself, and the defendant had the last clear chance to avoid the injury, the plaintiff’s contributory negligence would not bar the plaintiff’s recovery

89
Q

What type of comparative fault does MO have?

A

Pure Comparative Fault; always let plaintiff recover for whatever portion of the harm was the defendant’s fault

90
Q

Pure Comparative Fault

A

always let plaintiff recover for whatever portion of the harm was the defendant’s fault

91
Q

Modified Comparative Fault

A

cut-off point for plaintiff recovery; plaintiff cannot recover if his negligence is equal to or greater than that of the defendant

92
Q

Tie goes to the plaintiff/51% bar

A

plaintiff can recover defendant’s percentage of fault up to 50.9%

93
Q

Tie goes to the defendant/50% bar

A

plaintiff can only recover defendant’s percentage of fault up to 49.9%

94
Q

Compare One-by-One

A

make a series of separate comparisons of plaintiff’s share to each defendant’s share

95
Q

Compare All-at-Once

A

compare plaintiff’s share to the sum of all the defendant’s share

96
Q

Sunshine Rule

A

allowing the judge to instruct the jury about how comparative fault works

97
Q

Blindfold Rule

A

only asking jury to determine percentage of fault, not instructing them on the repercussions their decision could have (not an issue for pure comparative fault)

98
Q

MO seat belt defense

A

allows damages to be reduced no more than 1% if not wearing a seat belt

99
Q

Bexiga v. Havir Manufacturing Corp

A

claim should not be barred by contributory negligence where the plaintiff did something careless, but it was the very thing the defendant had a duty to use reasonable care to prevent

100
Q

Special Rule for Rescuers (comparative fault)

A

(most states and Restatements) no need for a special rule for rescuers under comparative fault
MO/KS: not applied if the rescuer’s conduct was rash or wanton (Allison v. Sverdrup)

101
Q

The “Own-Wrong” Rule

A

A person cannot maintain a cause of action if, in order to establish it, he must rely in whole or in part on an illegal or immoral act or transaction to which he is a party; not embraced by the Restat., not clearly addressed in MO or KS

102
Q

Wassell v. Adams

A

If each the plaintiff and the defendant could have avoided the injury at the same cost, they are each 50% responsible.

103
Q

Least Cost Avoider Theory

A

focus on determining who could have avoided the harm in the least costly way; no special rule about last clear chances under comparative fault

104
Q

Express Assumption of Risk

A

plaintiff actually agrees in advance to accept the consequences of the defendant’s negligence and not to hold the defendant liable for injuries suffered.

105
Q

Does E.A.R. need to be in writing?

A

No; can be implied from actions or silence; absent a statutory requirement that express assumption of risk requires writing, the jury should decide whether a plaintiff has knowingly accepted risks. (Boyle v. Revici)

106
Q

MO E.A.R.

A

a provision exempting one from liability for negligence will never be implied but must be clearly and explicitly stated. The words “negligence” and “Fault” or equivalents must be used and must be clear and explicit.

107
Q

Factors to consider when deciding whether a waiver is enforceable

A
  1. How voluntary is the activity?
  2. How important is the activity?
  3. How broad is the waiver?
  4. Could the defendant continue its business without the waiver?
  5. How well can the plaintiff protect herself from the danger?
108
Q

Invalid negligence waivers

A

consumer products, transportation, hotels, medical care, employment, housing, utilities

109
Q

Wagenblast v. Odessa School District

A

Public Policy reasons can outweigh the freedom to contract regardless of how clear and unambiguous the waiver is; if the service performed is one of importance to the public, a certain standard of performance is required

110
Q

Liability waiver signed only by a child

A

invalid, do not have the capacity to enter into a binding contract
MO: only a duty-appointed next friend or guardian of a child may enter into a binding settlement of a child’s legal claims

111
Q

Implied Assumption of Risk

A

voluntarily chose to encounter known risks

112
Q

Steps to Analyzing a Waiver

A
  1. Was there an agreement to waive liability?
  2. Was it within the scope of the waiver?
  3. Should the waiver be enforced?
113
Q

Strict Liability Torts

A

liability without fault; respondeat superior (more of a vicarious/derivative liability), wild animals, public entity defendants, ultrahazardous activities, defective products

114
Q

Remedies

A

most want money, some seek injunctive relief, compensatory and punitive damages

115
Q

Compensatory Damages

A

compensation and deterrence; recover full market value in property damage (total damage); cost of repair or diminished value (partial); rental cost

116
Q

2 categories for personal injury damages

A

economic and noneconomic; can be in lumpsum or future payouts

117
Q

Economic damages

A

medical expenses, lost income, can recover for past and future harm, timing of the suit is important

118
Q

Non-Economic Damages

A

pain and suffering, lost enjoyment of life, physical impairment

119
Q

MO payments for medical malpractice claims

A

future payouts

120
Q

Traditional Common Law rule of Effect of Death on Tort Claims

A

no tort liability if either alleged tortfeasor or the victim was dead; a dead person could not sue or be sued

121
Q

Fatal Accidents Act/Lord Campbell’s Act

A

allowed family of a dead person to bring legal action for damages for harm suffered by a dead person; also permitted claims to be brought against the estate of a dead person

122
Q

Survival Claims

A

alive and assert a claim but then die; the claim survives and the estate becomes the plaintiff; estate recovers whatever you were entitled to recover; claim can be actually brought or one you were entitled to

123
Q

Wrongful Death

A

a tort causes your death, and other people suffer harm because you died; cannot recover for grief;

124
Q

MO Wrongful Death Claim

A

only 1 action can be brought; can only be brought by a spouse, children, lineal descendants of deceased children, father or mother, then brother or sisters (or their descendants) of the deceased, then plaintiff ad litem

125
Q

MO 537.010

A

Action for damages to property survive regardless of death of either party

126
Q

MO 537.020

A

Action for personal injury or death to survive regardless of death of either party

127
Q

MO 537.030

A

not to extend to actions for slander, libel, assault, and battery, or false imprisonment

128
Q

Plaintiff ad litem

A

appointed by the court

129
Q

Punitive Damages

A

exemplary damages; provides correction in situations where not every person sued and can make up for compensatory damages never collected (Posner), defendant’s wealth can be relevant

130
Q

Mathias v. Accor Economy Lodging Inc.

A

Punitive damages should be proportional to the wrongfulness of the defendant’s actions, should be measured by standards or rules.

131
Q

Punitive Damages (MO before 2020)

A

defendant who showed complete indifference or conscious disregard for the safety of others; knew or should have known there was a high degree of probability his conduct would result in harm; evil motive or reckless indifference

132
Q

Punitive Damages (MO after 2020)

A

punitive damages cannot be awarded unless the plaintiff proves by clear and convincing evidence the defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others; none for non-parties; limitations when compensatory damages are nominal

133
Q

MO Caps on Punitive Damages

A

$5,000 or 5 times the net amount of judgment awarded to the plaintiff

134
Q

KS Cap on Punitive Damages

A

$5 million or 1 year gross income (whichever is lower)

135
Q

Split Recovery

A

plaintiff only receives half of punitive damages other half goes into state fund

136
Q

Measure for Damages against Harm to Animals

A

difference in fair market value before and after the injury, considered an economic loss because pets are chattels

137
Q

Collateral Source Rule

A

damages cannot be reduced even if the plaintiff received compensation from an independent source (half of states have abolished)

138
Q

Traditional Collateral Source Rule

A

collateral sources of payment do not affect the defendant’s damages

139
Q

MO Collateral Source Rule

A

adheres to rule with one exception; medical care costs must be reasonable, necessary, and a proximate cause (recovery is limited to amount actually paid, not higher amount billed)

140
Q

Statute of Limitations in MO

A

2 years for intentional tort claims
2 years for medical malpractice claims (from the time malpractice occurred)
3 years for wrongful death claim
5 years for other negligence claims

141
Q

When does time begin for statute of limitations claims?

A

when the damage from the tortious conduct is sustained and is capable of ascertainment; if the victim is a minor, the clock doesn’t start until age 21

142
Q

Remittitur

A

traditional means by which a judge can reduce a damage award if she thinks it is too high; defendant gets new trial unless plaintiff agrees to lower damages

143
Q

Additur

A

if judge thinks damages are too low, judge gives the defendant the option of agreeing to pay a higher amount or facing a new trial (abolished in MO in 1985, reinstated in 1987) (KS has both R and A)

144
Q

MO Non-Economic Damages Cap

A

$350,000 from all defendants and from all occurrences (unconstitutional); originally could recover $350,000 from each defendant for every occurrence

145
Q

KS Non-Economic Damages Cap

A

gradual increase starting at $250,000, unconstitutional

146
Q

When are punitive damage caps valid?

A

Valid for claims created after 1820 (when constitution was formed)

147
Q

Elements of Intentional Torts

A

Act
Intent
Result

148
Q

Tort-to-Tort Transferred Intent

A

a different intentional tort against the same person

149
Q

Person-to-Person Transferred Intent

A

intends to commit a tort against one person, but happens to another

150
Q

Extended Liability

A

still liable if only intended mild harm, but severe harm results

151
Q

Respondeat Superior

A

employer is responsible for an employee’s tortious acts committed within the scope of employment; must be within the scope of employment and in furtherance of the employer’s business

152
Q

Vicarious Liability

A

secondary liability imposed upon a supervisor or other controlling party for the acts done by a subordinate because of the relationship between the principal and the agent

153
Q

Battery

A

Act
Intent: to cause harmful or offensive contact (can be direct or indirect) (act and intent must be simultaneous, but not result)
Result: harmful or offensive contact to the plaintiff

154
Q

Dual-Intent Approach

A

intends contact with the plaintiff and intends for that contact to be harmful or offensive (majority rule)

155
Q

Single-Intent Approach

A

Intents to cause contact with plaintiff

156
Q

Assault

A

Act
Intent: to cause apprehension of imminent danger
Result: put plaintiff in apprehension of imminent contact (Plaintiff must be aware of danger)

157
Q

False Imprisonment

A

Act
Intent: to confine the victim in a bounded area
Result: victim is aware of confinement or is harmed by the confinement

158
Q

Shopkeeper’s Privilege

A

a store owner may detain someone they reasonably believe to be shoplifting, but only for a reasonable time and in a reasonable manner

159
Q

Test for False Imprisonment

A

A reasonable person, under the circumstances, would think they were not permitted to leave; need reasonable apprehension

160
Q

I.I.E.D

A

Act: defendant acted intentionally (extreme and outrageous) or recklessly
Intent: to cause severe emotional distress
Result: plaintiff suffered severe emotional distress (cannot be maintained if distress was incidental to the commission of some other tort)

161
Q

Third Party Recovery for IIED

A

only a claim if the tort is done to you except close family members who contemporaneously perceive event (Restatements)

162
Q

Trespass to Land

A

Act: someone or something enters other’s land
Intent: to cause someone or something to enter land
Result: enters or remains on land

163
Q

Private Nuisance

A

actor substantially and unreasonably interferes with a right to use or enjoy land shared by the general public

164
Q

Public Nuisance

A

actor substantially and unreasonably interferes with the victim’s use and enjoyment of land in the victim’s possession with intent, recklessness, or negligence or by conducting n abnormally dangerous activity

165
Q

Trespass to Chattel

A

Act
Intent: to cause substantial inference with other’s property; to take it, prevent use, damage
Result: substantial interference with the plaintiff’s chattel

166
Q

Conversion

A

Act
Intent: to exercise control or dominion
Result: exercising control or dominion over the plaintiff’s chattel
(no required intent to steal)

167
Q

Measure of Damages of Conversion

A

entire value of the property

1L (9 decks)

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