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)
2 Types of Control for Special Relationships
- Protective Control
2. Restraining Control
Professional’s Duty
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
Physical Disabilities Duty
a person who has physical disabilities is required to exercise the care of a reasonable person with the defendant’s same physical impairments
Intoxication Duty of care
Voluntary-exhibit care of a reasonably prudent person
Involuntary-exhibit care of a reasonably prudent person under the same circumstances
Children Participating in Adult Activities
have duty to exercise care of a reasonably prudent person
Emergency Doctrine
Exercised care that a reasonable person would have under the same circumstances; not required to act how you would absent the emergency
Negligence
standard of care required is always reasonable care unless there is a special reason why you don’t have to
In MO, at what age can a child’s conduct be deemed negligent?
7 years old
Possibilities for Liability (Allocation)
- Plaintiff gets nothing
- pro rata
- allocate by severity of fault
- joint and several liability
Causal Apportionment
divisible injury, allocate by who caused each part of the harm
Joint and Several Liability
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
Indivisible Injury
both defendants caused all the harm, and it is impossible to determine which defendant caused which part of the harm
Concerted Action
defendants agreed to act together; no causal apportionment, hold them liable together only if they agreed to do what made the act tortious
Traditional Rule for Concerted Action
defendants who acted in concert get joint and several liability
Rule for Indivisible Injuries (Landers v. East Texas)
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.
Joint and Several Liability to the Plaintiff (Alabama)
plaintiff can choose to recover full amount from any defendant
Joint and Several Liability to Plaintiff and contribution claims based on pro rata split (MD, NC, VA)
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
Joint and Several Liability to Plaintiff and Contribution Claims Based on Shared Fault
each amount defendant pays is equal to her percentage of fault; can still have one defendant left on the hook for everything
Each defendant is liable for own share of fault
No contribution claims
Joint and Several Liability in MO
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
Contributory Negligence (Butterfield v. Forrester)
plaintiff cannot recover if the plaintiff’s own negligence contributed to causing the injury
Doctrine of Last Clear Chance
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
What type of comparative fault does MO have?
Pure Comparative Fault; always let plaintiff recover for whatever portion of the harm was the defendant’s fault
Pure Comparative Fault
always let plaintiff recover for whatever portion of the harm was the defendant’s fault
Modified Comparative Fault
cut-off point for plaintiff recovery; plaintiff cannot recover if his negligence is equal to or greater than that of the defendant
Tie goes to the plaintiff/51% bar
plaintiff can recover defendant’s percentage of fault up to 50.9%
Tie goes to the defendant/50% bar
plaintiff can only recover defendant’s percentage of fault up to 49.9%
Compare One-by-One
make a series of separate comparisons of plaintiff’s share to each defendant’s share
Compare All-at-Once
compare plaintiff’s share to the sum of all the defendant’s share
Sunshine Rule
allowing the judge to instruct the jury about how comparative fault works
Blindfold Rule
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)
MO seat belt defense
allows damages to be reduced no more than 1% if not wearing a seat belt
Bexiga v. Havir Manufacturing Corp
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
Special Rule for Rescuers (comparative fault)
(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)
The “Own-Wrong” Rule
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
Wassell v. Adams
If each the plaintiff and the defendant could have avoided the injury at the same cost, they are each 50% responsible.
Least Cost Avoider Theory
focus on determining who could have avoided the harm in the least costly way; no special rule about last clear chances under comparative fault
Express Assumption of Risk
plaintiff actually agrees in advance to accept the consequences of the defendant’s negligence and not to hold the defendant liable for injuries suffered.
Does E.A.R. need to be in writing?
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)
MO E.A.R.
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.
Factors to consider when deciding whether a waiver is enforceable
- How voluntary is the activity?
- How important is the activity?
- How broad is the waiver?
- Could the defendant continue its business without the waiver?
- How well can the plaintiff protect herself from the danger?
Invalid negligence waivers
consumer products, transportation, hotels, medical care, employment, housing, utilities
Wagenblast v. Odessa School District
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
Liability waiver signed only by a child
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
Implied Assumption of Risk
voluntarily chose to encounter known risks
Steps to Analyzing a Waiver
- Was there an agreement to waive liability?
- Was it within the scope of the waiver?
- Should the waiver be enforced?
Strict Liability Torts
liability without fault; respondeat superior (more of a vicarious/derivative liability), wild animals, public entity defendants, ultrahazardous activities, defective products
Remedies
most want money, some seek injunctive relief, compensatory and punitive damages
Compensatory Damages
compensation and deterrence; recover full market value in property damage (total damage); cost of repair or diminished value (partial); rental cost
2 categories for personal injury damages
economic and noneconomic; can be in lumpsum or future payouts
Economic damages
medical expenses, lost income, can recover for past and future harm, timing of the suit is important
Non-Economic Damages
pain and suffering, lost enjoyment of life, physical impairment
MO payments for medical malpractice claims
future payouts
Traditional Common Law rule of Effect of Death on Tort Claims
no tort liability if either alleged tortfeasor or the victim was dead; a dead person could not sue or be sued
Fatal Accidents Act/Lord Campbell’s Act
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
Survival Claims
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
Wrongful Death
a tort causes your death, and other people suffer harm because you died; cannot recover for grief;
MO Wrongful Death Claim
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
MO 537.010
Action for damages to property survive regardless of death of either party
MO 537.020
Action for personal injury or death to survive regardless of death of either party
MO 537.030
not to extend to actions for slander, libel, assault, and battery, or false imprisonment
Plaintiff ad litem
appointed by the court
Punitive Damages
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
Mathias v. Accor Economy Lodging Inc.
Punitive damages should be proportional to the wrongfulness of the defendant’s actions, should be measured by standards or rules.
Punitive Damages (MO before 2020)
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
Punitive Damages (MO after 2020)
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
MO Caps on Punitive Damages
$5,000 or 5 times the net amount of judgment awarded to the plaintiff
KS Cap on Punitive Damages
$5 million or 1 year gross income (whichever is lower)
Split Recovery
plaintiff only receives half of punitive damages other half goes into state fund
Measure for Damages against Harm to Animals
difference in fair market value before and after the injury, considered an economic loss because pets are chattels
Collateral Source Rule
damages cannot be reduced even if the plaintiff received compensation from an independent source (half of states have abolished)
Traditional Collateral Source Rule
collateral sources of payment do not affect the defendant’s damages
MO Collateral Source Rule
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)
Statute of Limitations in MO
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
When does time begin for statute of limitations claims?
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
Remittitur
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
Additur
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)
MO Non-Economic Damages Cap
$350,000 from all defendants and from all occurrences (unconstitutional); originally could recover $350,000 from each defendant for every occurrence
KS Non-Economic Damages Cap
gradual increase starting at $250,000, unconstitutional
When are punitive damage caps valid?
Valid for claims created after 1820 (when constitution was formed)
Elements of Intentional Torts
Act
Intent
Result
Tort-to-Tort Transferred Intent
a different intentional tort against the same person
Person-to-Person Transferred Intent
intends to commit a tort against one person, but happens to another
Extended Liability
still liable if only intended mild harm, but severe harm results
Respondeat Superior
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
Vicarious Liability
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
Battery
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
Dual-Intent Approach
intends contact with the plaintiff and intends for that contact to be harmful or offensive (majority rule)
Single-Intent Approach
Intents to cause contact with plaintiff
Assault
Act
Intent: to cause apprehension of imminent danger
Result: put plaintiff in apprehension of imminent contact (Plaintiff must be aware of danger)
False Imprisonment
Act
Intent: to confine the victim in a bounded area
Result: victim is aware of confinement or is harmed by the confinement
Shopkeeper’s Privilege
a store owner may detain someone they reasonably believe to be shoplifting, but only for a reasonable time and in a reasonable manner
Test for False Imprisonment
A reasonable person, under the circumstances, would think they were not permitted to leave; need reasonable apprehension
I.I.E.D
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)
Third Party Recovery for IIED
only a claim if the tort is done to you except close family members who contemporaneously perceive event (Restatements)
Trespass to Land
Act: someone or something enters other’s land
Intent: to cause someone or something to enter land
Result: enters or remains on land
Private Nuisance
actor substantially and unreasonably interferes with a right to use or enjoy land shared by the general public
Public Nuisance
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
Trespass to Chattel
Act
Intent: to cause substantial inference with other’s property; to take it, prevent use, damage
Result: substantial interference with the plaintiff’s chattel
Conversion
Act
Intent: to exercise control or dominion
Result: exercising control or dominion over the plaintiff’s chattel
(no required intent to steal)
Measure of Damages of Conversion
entire value of the property
