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Torts Flashcards

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1
Q

For all intentional torts must have intent and voluntary act. Definitions

A

Defendant must have made a voluntary act. An involuntary act such as sliding on ice will not created an intentional tort
Defendant must have intended the consequence of defendants act. This means defendant acted with actual desire or substantial certainty. Negligent behavior is not sufficient

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2
Q

Person to Person Transfer of Intent

A

Person to person: if intent is proven as to one plaintiff intent is proven as to all plaintiffs

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3
Q

Tort to Tort Transfer of Intent

A

if intent is proven for one intentional tort ie assault, intent may be proven for another intentional tort ie battery

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4
Q

Does motive matter in intentional torts?

A

Motive (hatred, jealousy) is not relevant

- Does not matter that you had a good motive

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5
Q

Causation

A

Defendants act must have caused of been a substantial factor in causing the result

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6
Q

Are actual damages needed for intentional torts?

A

No, Nominal damages can be awarded

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7
Q

Punitive Damages in Torts

A

punitive damages if defendants behavior was willful, wanton, and malicious
- Punitive damages are to punish and deter. Amount of punitive damages is based on defendants wealth, reprehensibility of defendants misconduct and actual harm caused. Modern trend is to limit punitive damages

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8
Q

What is defendant liable for in action for intentional torts?

A

liable for all harm cause even if the harm was not foreseeable

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9
Q

Assault

A

Plaintiffs reasonable apprehension of imminent harmful or offensive contract plus defendants intent and causation
- Defendant must do a voluntary act which creates a reasonable apprehension in plaintiff of imminent harmful or offensive contract. Defendant must intend to cause such apprehension

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10
Q

Assault Key Issues

A

Voluntary act, intent, no contract needed, reasonable apprehension, transferred intent, awareness, negligent act is insufficient, immediate harm, not future, words alone are insufficient

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11
Q

Assault / Apprehension

A

expectation of

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12
Q

Assault / Harmful contact

A

punched or shot

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13
Q

Assault / Offensive contact

A

includes any kind of improper touching

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14
Q

Assault/ What kind of contact is needed?

A

No actual contact

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15
Q

Assault/ Are words enough?

A

No there must be some physical act by the defendant

Exceptions:if plaintiff is blind of in totally dark room words alone may constitute assault

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16
Q

Assault/ Whose apprehension is needed?

A

Plaintiffs apprehension must be for plaintiff, not someone else even if that someone else is a family member

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17
Q

Assault / contact must be _____

A

imminent contract, not future: I’ll spit on you next week does not prove an assault

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18
Q

Assault / Plaintiffs Awareness

A

Plaintiff must be aware of defendants act. Sleeping or unconscious persons cannot win assault cases

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19
Q

Assault/ Reasonable Person

A

Plaintiff must prove that a reasonable person would have been placed in apprehension

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20
Q

Assault / Plaintiff Sensitivity

A

Extra sensitivity of Plaintiff is not considered unless defendant is aware of the plaintiffs extra sensitivity

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21
Q

Are actual damages needed for assault?

A

No

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22
Q

Transferred intent torts

A

Assault, Batter, Trespass to Chattel, Trespass to Land, False imprisonment

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23
Q

Battery

A

Defendants harmful or offensive contract with plaintiff plus intent and causation

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24
Q

Battery Key Issues

A

Actual contact needed, transferred intent, awareness not needed

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25
Q

Transfered Intent of Battery

A

The intent to commit assault (apprehension) will satisfy intent for batter under transferred intent when the contact is made accidentally

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26
Q

Battery / What does contact have to be with?

A

can be with plaintiffs body or something connected to plaintiffs body (ex: hat, holding plate). Battery also established by defendant setting in motion something that causes contract ie pulling away a chair, or putting poison in food

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27
Q

Battery / Standard

A

Harmfulness or offensiveness of contract is based on a reasonable person standard.

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28
Q

Battery/ Sensitive Plaintiff

A

We only consider special sensitivity of plaintiff if defendant is aware of plaintiffs sensitivity.

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29
Q

Battery / Plaintiff Awareness

A

Plaintiffs awareness of the contact is not needed for battery

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30
Q

False Imprisonment

A

Defendants act must confine or restrain plaintiff to a bounded area. Defendants act must be voluntary and with the intent to confine or restrain

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31
Q

False Imprisonment Key Issues

A

confinement to a bounded area, threat of immediate physical harm, no reasonable exit, awareness, transferred intent, motive is irrelevant, short length of time not fatal, no actual damages needed

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32
Q

False Imprisonment/ Confinement or restraint

A

physical barriers (locking a door), physical force, and threats of immediate physical force

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33
Q

False Imprisonment/ Bounded area

A

bounded area means there is no reasonable exit (no way to get away)

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34
Q

False Imprisonment / Being Excluded

A

Being excluded from an area is not false imprisonment. Plaintiff being locked out of plaintiffs house is not false imprisonment

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35
Q

False Imprisonment/ Length of Confinement

A

The length of confinement is not relevant to prove a false imprisonment case (although relevant to damages)

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36
Q

False Imprisonment / Plaintiff awareness

A

Plaintiff must be aware of the confinement

- Exception: IF plaintiff is mentally incapable of awareness and is actually harmed (ie infant)

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37
Q

False Imprisonment/ Motive

A

Not Relevant

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38
Q

False Imprisonment / Damages

A

Actual Damages not needed

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39
Q

Intentional Infliction of Emotional Distress

A

Defendants intentional or reckless extremely outrageous behavior which causes plaintiff emotional distress

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40
Q

Intentional Infliction of Emotional Distress key issues

A

Extreme and outrageous behavior, Defendants knowledge of special sensitivity, common carrier defendant, sever emotional distress, intent, transferred intent

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41
Q

Intentional Infliction of Emotional Distress / Acts

A

Defendants act must be extreme and outrageous. But words alone or a threat of future outrageous behavior may prove the tort.

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42
Q

Intentional Infliction of Emotional Distress/ Sensitivity

A

Plaintiffs special sensitivity is not considered unless defendant is aware of plaintiffs special sensitivity

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43
Q

Intentional Infliction of Emotional Distress / Defendants Identity

A

Defendants identity is relevant ie conduct by common carriers and innkeepers are more likely to be viewed as outrageous

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44
Q

Intentional Infliction of Emotional Distress/ Plaintiffs Identity

A

Plaintiffs identity is also relevant. A plaintiff who is pregnant, very old, or very young is more likely to win cases

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45
Q

Intentional Infliction of Emotional Distress / Level of Distress

A

Severe emotional distress is required, ie a complete nervous breakdown. Nominal damages are not enough

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46
Q

Intentional Infliction of Emotional Distress / how can intent be proven

A

Intent is proven not only by actual desire and substantial certainty but also reckless behavior

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47
Q

Intentional Infliction of Emotional Distress / Onlookers

A

Transferred intent does not apply, but minority may permit onlookers to collect if family member is target of the outrageous conduct

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48
Q

Trespass to Land

A

Trespass to land involves defendants voluntary and intentional physical invasion of plaintiffs land

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49
Q

Trespass to Land key issues

A

Tenant as Plaintiff, reasonable belief of ownership is not a defense, refusing to leave is trespass, no actual damages needed

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50
Q

Trespass to Land / airspace

A

Plaintiffs land includes airspace to a reasonable height

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51
Q

Trespass to Land/ Invasion

A

Physical invasion includes defendants personal entrance, throwing tangible objects on plaintiffs land, defendants remaining on plaintiffs land after being told to leave or if defendants leaving objects on plaintiffs land after being told to remove them

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52
Q

Trespass to Land / Who can plaintiff be?

A

Plaintiff can be owner or tenant (superior possessory interest to Defendant is all that’s needed)

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53
Q

Trespass to Land / Intent

A

Defendant must have intent to physically invade but didn’t need to prove trespass (Could think its your land, intent is that you entered land)

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54
Q

Trespass to Land/ Good Faith Belief

A

Defendants good faith honest reasonable belief that the land belongs to defendant is not a defense

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55
Q

Trespass to Land/ Harm

A

Harm to land not needed

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56
Q

Conversion

A

Conversion is the intentional destruction or wrongful possession for a significant period of time of another’s personal property

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57
Q

Trespass to chattel

A

Trespass to chattel involves less harm or shorter wrongful possession of another’s personal property

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58
Q

Remedies for Conversion

A

Remedies for conversion include damages (fair market value) or replevin (return)

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59
Q

Damages for trespass to chattel

A

Trespass to chattel requires actual damages usually reduction in value or valued of loss of use

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60
Q

Trespass to Chattel/ Good Faith Belief

A

Defendants good faith reasonable belief that the chattel belongs to defendant is not a defense

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61
Q

Consent Key Issues

A

Key Issues: Implied consent, misrepresentation as to a collateral matter, capacity to consent, acts beyond scope of consent given

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62
Q

When is consent invalid?

A
  • When based on duress
  • Consent based on plaintiffs mistake is invalid if defendant was aware of plaintiffs mistake
  • If express consent was based on a misrepresentation going to the essence of the touching, consent is not a valid defense.
  • If express consent was based on a misrepresentation as to a collateral matter, consent is a valid defense
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63
Q

Implied Consent

A

implied consent results from participating in activities known to include physical contact (ex: riding a bus, crowded bar) There is also implied consent in an emergency situation

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64
Q

Capacity to Consent

A

Capacity to consent: Plaintiff must have the capacity to understand the consequences of consent for there to be valid defense
- Ex: Children, mentally incompetent individuals, and drunken persons lack capacity to consent

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65
Q

Scope of Consent

A

Even if consent is valid, if defendant acts beyond scope of consent, consent becomes invalid

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66
Q

Self Defense Key Issues

A

Reasonable belief of need for self-defense, reasonable amount of force injured bystander

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67
Q

Self Defense

A
  • Defendant is entitled to use reasonable force to prevent an intentional tort that defendant reasonably believes is about to be committed against defendant
  • Reasonable belief of defendant is valid defense even if defendant was wrong for need to use self-defense
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68
Q

Self Defense/ Retreat

A

General Rule: There is no duty to retreat.

Modern Trend: Required retreat if self defense causes death or serious bodily harm unless defendant is in own home

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69
Q

Self Defense / Retaliation

A

Self defense does not include retaliation

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70
Q

Self Defense/ Injured Bystanders

A

IF a bystander is injured during valid reasonable self defense, self defense privileges transfers to bystanders case and defendant is not liable to the bystander

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71
Q

Defense of Other Persons

A

Reasonable force may be used to protect a third person even a stranger
Even if the defender is not liable for batter as long as the defender had reasonable belief that third person had right of self-defense

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72
Q

Defense of Land or Chattels Key Issues

A

no deadly force to protect property, repossession of chattel
Reasonable nondeadly force may be used to protect land or chattels
Retaliation is not allowed only to defend the tort

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73
Q

Defense of Land or Chattels / Regain Possession

A

Reasonable nondeadly force to regain possession of chattel is allowed if
1 original taking illegal
2. In fresh pursuit and
3. Request for return is useless or dangerous

74
Q

Defense of Land or Chattels/ When chattel is located on land of wrongdoer

A

owner of chattel is

privileged to enter wrongdoers land and reclaim chattel in reasonable manner

75
Q

Necessity

A

A defense to trespass to land, trespass to chattel and conversion

76
Q

Public Necessity Defense

A

If defendants acts, although a tort, avoided greater injury to the public , there is no liability

77
Q

Private Necessity Defense

A

If Defendants acts, although a tort, avoided greater injury to a small number of persons. Defendant is only liable for any actual damage caused

78
Q

Discipline

A

Persons in charge of children are permitted to use reasonable force to control a child
- Time out vs. Foot Locker

79
Q

Merchants Privilege

A

Defense to false imprisonment. Shop owner is not liable if reasonable belief that person detained has shoplifted even if no shoplifted actually occurred

80
Q

Slander

A

Purely Spoken

- Statement must be defamatory

81
Q

Libel

A

(statement must be defamatory

  • Written/ Recorded Tangible
  • Statements on TV, oral repetitions of a libel and written repetition of a spoken statement are all viewed as libel
82
Q

Defamatory

A

lowers plaintiffs reputation in the community (respectable society, prison does not count)

83
Q

Defamatory Standard

A

Whether a statement is defamatory is based on whether a reasonable person would find the statement defamatory, Not plaintiffs subjective reaction

84
Q

Facially Defamatory

A

If it’s defamatory on it’s face

85
Q

Defamatory/ Inducement

A

Pleasing of additional facts to prove defamatory nature
- Extrinsic facts are needed to make a statement defamatory (plain statement, but if you say “spotted with X” and you know he is married to y, defamatory)

86
Q

Defamatory / Innuendo

A

plea of defamatory meaning of the statement

87
Q

Defamation statement must be _____

A

Defamation involves statements of fact, not opinion. A statement is not an opinion just because it begins with “my opinion is”

88
Q

Defamation and Plaintiff

A

plaintiff must prove that a reasonable reader or listener must understand the statement to concern plaintiff. If plaintiffs identity is not obvious, plaintiff must please extrinsic facts.

89
Q

Colloquium

A

the pleading of extrinsic facts to prove that the statements concerns plaintiff

90
Q

Group Defamation

A

If a group is defamed, an individual member of the group can only bring an individual defamation acting if the groups is small. (no bright line rule for when group is to big)

91
Q

Parties to Defamation

A

No dead parties to defamation

92
Q

Publication and Defamation

A

Publication: a defamation action requires publication which means communicated to a third party. If defendant tells only plaintiff there is no publication

93
Q

Republication and Defamation

A

A person who repeats a defamatory statement is also liable for defamation. The republisher can increase the liability of the original defamer if republication was intended or reasonably foreseeable

94
Q

Presumed Damages and Defamation

A

At common law, if the statement was defamatory damages were presumed. Plaintiff did not have to prove presumed damages
- Exception: Slander- Special damages are needed to prove slander. Special damages means economic damages. However if slander concerns a crime of moral turpitude, business misconduct, sexual misconduct, or loathsome disease, special damages are not needed

95
Q

Presumed Damages Exception Special Damages / Defamation

A

Exception: Slander- Special damages are needed to prove slander. Special damages means economic damages. However if slander concerns a crime of moral turpitude, business misconduct, sexual misconduct, or loathsome disease, special damages are not needed

96
Q

Libel Per Quod

A

(minority view): a writing not defamatory on its face requires special damages

97
Q

Truth and Defamation

A

under common law defamation truth is a defense for defendant to prove. Plaintiff is not required to prove falsity

98
Q

Constitutional Limits and Defamation

A

First amendment involved when:

  1. Plaintiff is a public person or
  2. When the matter involves an issue of public concern
99
Q

Public Plaintiffs and Defamation

A

Public Plaintiffs to win a defamation case must prove by clear and convincing evidence that the statement was false and the defendant acted with Malice
- Malice means defendant knew the statement was false or acted with reckless disregard of its truth or falsity

100
Q

Malice

A

Malice means defendant knew the statement was false or acted with reckless disregard of its truth or falsity

101
Q

Groups of Public Plaintiffs

A

There are two groups of public plaintiffs who need to prove clear and convincing evidence of falsity and malice in all cases:

  1. Government officials and
  2. Celebrities
102
Q

Limited Purpose Public Plaintiffs

A

must prove clear and convincing evidence of falsity and malice in only those defamation cases involving the particular public controversy in which they have voluntarily assumed a public role, but not in defamation cases unrelated to the particular public controversy

103
Q

Private Person / Public Concern Plaintiff

A

This is a plaintiff who is not a government official or celebrity but whose defamation action involves a matter of public concern. A private person/ public concern Plaintiff is not required to prove malice, but such plaintiffs must prove defendant made a false statement and that defendant acted at lease negligently. However a private person/ public concern plaintiff must prove malice to collect punitive damages

104
Q

Absolute Privilege

A

There is no defamation liability for statements made by one spouse to another, statements made in judicial proceedings, statements made by executive branch officials and statements made by legislators in hearings or floor debates

105
Q

Qualified Privilege

A

There are various situations where a speaker is entitled to a qualified privilege. Look for employers and professors giving recommendations; persons reporting crimes; and credit bureau reports. IF defendant has qualified privilege, Defendant is only liable if 1. Defendant acted with malice; or 2. Engaged in excessive publication; or 3. If the statement is unrelated to the policy of the qualified privilege

106
Q

A private person plaintiff suing for defamation in a matter not of public concern

A

need not prove falsity, malice or negligence

107
Q

Consent and Defamation

A

Consent is a defense to defamation. Plaintiff cannot sue for defamation if plaintiff consented to have defendant make the defamatory statement about plaintiff

108
Q

Invasion of Privacy

A
  1. Misappropriation of plaintiffs likeness/picture or name for commercial advantage
  2. Unreasonable intrusion into plaintiffs affairs or seclusion.
    - Examples: Wiretapping, reading plaintiffs mail, repeated telephone calls. The intrusion must be into something private, and must be highly offensive to a reasonable person. No communication to a third person is needed
  3. Public disclosure of private facts about plaintiff. The private facts are such that a reasonable person would not want theses facts to be made public. Defendants disclosure must be made in a very public way. The facts are true; not generally known about plaintiff; not part of any public record; and not of legitimate public interest
  4. False Light: False attribution of a belief or action which a reasonable person would find highly offensive that is publicized in a public way. Malice needs to be proven
109
Q

Consent and Invasion of privacy

A

Consent Defense: only actual consent is a valid defense, not reasonable belief of consent

110
Q

Deceit- Fraudulent Misrepresentation

A

A misrepresentation of material fact
General rule: opinions and silence cannot be the basis of deceit

Deceit can be based however on an opinion by an expert; and on silence if there is a fiduciary relationship, or a duty to correct earlier misinformation
Defendant must have scienter- intent to deceive or reckless disregard of the truth
Transferred intent does not apply. Only proper plaintiffs are those defendant intends to deceive or could reasonable foresee would rely on the statement
Plaintiff must prove reasonable reliance and actual damages

111
Q

Negligent Misrepresentations

A

A misrepresentation of fact as a result of defendants negligence
- Tort is narrow, only covers misrepresentations made by defendant as part of defendants business or profession (ex: accountants, surveyors)
Only persons that defendant knew would rely on defendants statements are proper plaintiffs
- Limited to people report known to reach
Plaintiff must prove reasonable reliance and actual damages

112
Q

Tortuous Interference with Contract (Tortuous Interference with Business Relation)

A

Plaintiff must prove plaintiff had valid contract with third party that defendant knew about, that defendant intentionally interfered with the contract, and that plaintiff suffered actual damages
Interference with a contract al will or a prospective contract is only actionable if defendant used wrongful tactics (ex: violence)

113
Q

Malicious Prosecution

A

Criminal proceedings instituted against plaintiff:
Must terminate in plaintiffs favor (not guilty)
Absence of probable cause
Improper purpose
Damages

114
Q

Negligence

A

Duty, Breach, Cause, Harm

115
Q

When is a duty owed?

A

Everyone has a duty no to affirmatively act in a manner to create an unreasonable risk of harm to others
There is no duty to take precautions against events that are not reasonably foreseeable
A duty is only owed to foreseeable plaintiffs
Majority: Foreseeable means you are within the zone of danger, not foreseeable not within the foreseeable zone of danger
Minority: Duty translates between people, almost everyone is foreseeable

Rescuers are foreseeable as long as the rescue is reasonable
- Firefighters rule bars firefighters and police from recovering for injuries suffered during a rescue

116
Q

Are rescuers foreseeable?

A

Rescuers are foreseeable as long as the rescue is reasonable
- Firefighters rule bars firefighters and police from recovering for injuries suffered during a rescue

117
Q

Is there a duty to aid someone in help?

A

There is no duty to aid someone in need of help
Exceptions:
- Special Relationship (parent/child, hotel/ guest, employer, employee, common carrier/ passenger, business person/ customer, social host/ guest,
- If someone cause another’s injury
- Places another in peril (even absent of fault)

118
Q

Good Samaritan

A

Good Samaritan: Don’t assume unless told in question
A person who starts to help must complete the help with reasonable care. Some states have statutes limiting liability of good Samaritans to gross negligence.
- Doctors are not treated differently, doctors have no duty to come to help injured persons

119
Q

Is there a duty to control a third person?

A

No duty to control a third person and prevent that third person from committing a tort
- Exceptions: parent has a duty to control children, employer has duty to control employees, and statute may impose duty to control third person (tavern owner, dram shop law)

120
Q

Standard of Care

A

We use an objective standard of reasonable care: the ordinary, prudent person, not whether defendant did his best
- Less bright less experienced adults are not held to a lower standard
Insanity is not a defense
But greater knowledge and greater experience of an adult defendant will be considered in deciding reasonableness
Physical disabilities are considered in deciding reasonabless ie we use a reasonable blind person standard for blind persons

121
Q

Child Standard for Standard of Care

A

Child Standard: What is reasonable for someone of like age, knowledge, education intelligence and experience. IF child is engaged in adult activity (ie driving) use adult standard. Adult activities = adult standard

122
Q

Professionals Standard (malpractice)

A

What is reasonable for average member of the profession in good standing in the same or similar community
-Ex: regular doctor

123
Q

Standard for specialists

A

Extra knowledge is considered. Use a national standard to evaluate a specialist

124
Q

Guest Statutes

A

don’t apply unless told to. Driver owes nonpaying rider less than reasonable care. Driver liable only for gross negligence or reckless conduct

125
Q

Duty Owed by Owners and Occupiers of Land

A

Two step approach:

  1. Was plaintiff injured while on defendants land or off defendants land
  2. Was plaintiff injured by an artificial condition, a natural condition, or an activity
126
Q

If plaintiff was injured off land by a natural condition

A

No duty owed to plaintiff

Exception: if plaintiff was injured by decaying tree next to side walk in a city

127
Q

If plaintiff was injured off land by an artificial condition

A

no duty owed to plaintiff

Exception: if plaintiff injured by dangerous condition on edge of property (ex: explosives or uncovered excavator hold)

128
Q

If plaintiff was injured off land by an activity

A

Duty of reasonable care owned to plaintiff

129
Q

If Plaintiff injured on defendants land

A
  • First look to see if plaintiff is a trespasser, licensee, or invitee
130
Q

If Plaintiff injured on defendants land as undiscovered trespasser

A

no duty owed if plaintiff was injured by artificial condition, natural condition or activity

131
Q

If Plaintiff injured on defendants land as discovered trespasser

A

No duty owed if plaintiff was injured by a natural condition or a nondangerous artificial condition.
Duty to warn or make safe if injured by highly dangerous artificial condition.
Duty of reasonable care owed if injured by activity

132
Q

If Plaintiff injured on defendants land as anticipated trespasser

A

No duty owed if plaintiff was injured by a natural condition or a nondangerous artificial condition.
Duty to warn or make safe if injured by highly dangerous artificial condition.
Duty of reasonable care owed if injured by activity

133
Q

Child Trespasser and attractive nuisance doctrine

A

Under attractive nuisance doctrine, owner or occupier of land owes child trespasser duty of reasonable care, attractive nuisance doctrine applies if:

  1. Dangerous artificial condition (ex: swimming pool)
  2. Defendant knew or should have known that children are likely to come by the artificial condition
  3. Plaintiff was incapable of appreciating the danger
  4. The expense of making the condition safe is slight compared to the danger
    - The artificial condition need not be the motive for Childs trespass
134
Q

Licensee

A

Licensee is a social guest or a person on defendants property for her own economic benefit

  • Person who enters land with the owners permission for his own purpose of business rather than for the owners benefit
  • Ex: Door to Door salespersons
  • Police and firefighters on defendants land are also treated as licensees
135
Q

Standard of care owed to licensee

A

Licensee injured by an activity: Defendants owes plaintiff a duty of reasonable care
Licensee injured by artificial or natural condition: Defendant owes plaintiff duty to warn or make safe non obvious conditions of which defendant knows.
No duty to inspect

136
Q

Business Invitee

A

On defendants property for economic benefit to defendant

- Include customers, persons accompanying customers, repair persons in defendants home

137
Q

Public Invitee

A

persons on defendants property for a public purpose

- Airport passengers, museum tourists, church attendess

138
Q

Standard of Care owed to Invitee

A

Invitee injured by activity: Defendant owes plaintiff duty of reasonable care
Invitee injured by artificial or natural condition: Defendant owes plaintiff duty to warn or make safe non obvious conditions of which defendant knows. plus duty make reasonable inspections

139
Q

Modern Trend of Trichatamoy

A

does away with fine distinctions, and focuses on defendants reasonabless based upon all relevant factors

140
Q

Look out Situations for Trichatamoy

A

For situations which people change in the trichatamoy

141
Q

Who has the burden to prove defendants breach? and by what evidence?

A

Plaintiff

Plaintiff might have direct evidence of unreasonable conduct (ex: eyewitness)
Of Plaintiff can rely on circumstantial evidence (ex: Res Ipsa Loquitur)

142
Q

Res Ipsa Loquitor

A

If Res Ipsa Loquitur established: plaintiff will avoid direct verdict . Does not create a presumption negligence and does not shift burden to defendant .
To establish res ipsa loquitur it must be shown that what happened ordinarily occurs only if someone was negligent and that more probable than not, it was this defendant who committed the negligent act because of this defendants exclusive control of the injury-producing instrumentality. Control must be at time of negligence, or at time of injury

143
Q

Custom of the Trade

A

Evidence of custom is admissible to prove breach of duty. Both plaintiff and defendant may rely on evidence of custom
Compliance with custom does not lead to verdict for defendant as a matter of law because jury could find that the custom itself is unreasonable and thus defendant was acting unreasonably even if in compliance with the custom
- Use of expert testimony and custom: An expert will testify on what is the custom and whether in experts opinion defendant violated the custom

144
Q

Violation of a Statute

A
  • Breached duty
    Plaintiff may rely on defendants violation of a statute to prove negligence
    Majority: negligence per se
    Minority: Evidence of negligence
    3 things must be true
    1. Violation of statute was unexcused (balance harm of complying vs. harm if violated)
    2. Type of harm must be same type of harm statute was aimed at preventing
    3. Plaintiff must be member of class of persons the statute was intended to protect
    Defendants compliance with statue is relevant but not conclusive. Reasonable person may have to go lower then statutes requirements
145
Q

Cause

A

Actual cause + Proximate Cause

146
Q

Actual Cause

A

Use the but for test when there is one tortfeasor
- Can’t use if there is more then 1 Plaintiff would lose every time

Use substantial factor test if there is more then 1 tortfeaser

147
Q

If two defendants are acting jointly who is actual cause of injury?

A

If two defendants are acting jointly both defendants are actual cause of entire injury

148
Q

If two defendant are not acting jointly if negligence of either one would have caused the injury who is responsible?

A

If two defendant are not acting jointly if negligence of either one would have cause the injury each is actual cause of entire injury

149
Q

If two defendants are not acting jointly and the negligence of both combined to cause greater injury than what would have resulted from the separate negligence of each, who is responsible for injury?

A

If two defendants are not acting jointly and the negligence of both combined to cause greater injury than what would have resulted from the separate negligence of each, both defendants are actual cause of entire injury

150
Q

If two defendants are not acting jointly and plaintiff is injured by negligence of one of them not both, and it is impossible to determine which one, Who is viewed as cause?

A

If two defendants are not acting jointly and plaintiff is injured by negligence of one of them not both, and it is impossible to determine which one, both defendants are viewed as the actual cause, unless one defendant can prove that the other was the actual cause (burden is on defendant)

151
Q

Proximate Cause

A

The harm suffered by plaintiff must have been reasonably foreseeable to defendant at time of defendants negligent act
The type of harm must be foreseeable but to the extent of harm.
Take the victim as you find him: Eggshell plaintiff, hemophilia patient

Proximate cause does not extend to purely economic harm suffered by third persons
Ex: someone with lost job because you burden down building, cant sue you for lost wages

152
Q

Intervening causes

A

an intervening cause is third person conduct or an event which occurs subsequent to defendants tort and which causes additional harm to plaintiff. - If the intervening cause is foreseeable defendant is liable for additional harm
- Unforeseeable intervening cause is superseding and defendant is not liable for added harm

153
Q

Foreseeable Intervening events

A
  • Medical malpractice always foreseeable
  • Negligence of rescuers is foreseeable and therefore defendant is liable for additional harm cause by rescuer
  • Negligent acts of third persons are foreseeable
  • non extraordinary weather changes are foreseeable (Ex: car accident victim suffers additional harm from rain storm)

Crimes and Intentional torts are generally not foreseeable
- Crimes may be foreseeable: Ex- store owner knows people are getting robbed in parking lot and does nothing about it

154
Q

Superseding Intervening events

A
  • Unforeseeable intervening cause is superseding and defendant is not liable for added harm
155
Q

Actual Damages

A

required for negligence

156
Q

Types of Damages

A
  • Pain and suffering (past and future)
  • Diminished earning capacity
  • Medical Expenses (past and future)
  • Plaintiffs medical insurance is not deducted (collateral source rule)
  • Expert testimony needed to prove
  • Loss of consortium (loss of companionship, household services and sex)
  • Damages are only available to legally married persons
157
Q

Emotional Distress for Damages

A

Majority requires some physical injury or symptom.
Also plaintiff must have been impacted or within zone of danger
Modern approach: covers plaintiff who was present at he scene who views close family member being impacted
Possible Trend: Damages for negligent inflection of emotional distress may also be available by an act which by itself is likely to result in physical symptoms even absent any physical impact or close physical impact
Ex: medical doctors negligent false diagnoses of a terminal illness patient

158
Q

Assumption of Risk

A

Plaintiff collects noting

  • Plaintiff must have subjectively actually known and understand risk and voluntarily accept it
  • Not applicable to rescuers
159
Q

Contributory Negligence

A

When plaintiffs unreasonable conduct is actual and proximate cause of plaintiffs actual damages (same law of negligence as applied to defendant). Even if plaintiff is only slightly contributory negligent, plaintiff collects nothing (1% negligent, recover nothing)

160
Q

Last Clear Chance Doctrine

A

Trumps contributory negligence.
Although plaintiff was contributory negligent if defendant had not acted subsequent to plaintiffs contributory negligence, plaintiff would not have been injured and therefore plaintiff can collect because of the last clear change doctrine
- Look for a helpless contributory negligent plaintiff
- Last clear chance doctrine is irrelevant is a comparative negligence state
In most comparative negligence states assumption of risk is viewed in terms of comparative fault which reduces but does not bar recovery

161
Q

Comparative Negligence

A

is the majority view today
Plaintiffs recovery is reduced by percentage of fault attributable to plaintiff
- Recovery reduced by whatever plaintiffs fault is
- Majority on MBE

162
Q

Partial or Modified Comparative Negligence

A

If plaintiff is more than 50% responsible for injury plaintiff gets nothing

163
Q

Strict Liability

A

No Fault Liability

164
Q

Abnormally Dangerous Activity

A

Strict liability for harm caused by an abnormally dangerous activity, defined as an activity that involves high risk of harm which cannot be eliminated no matter how much care is taken and the activity is not usual for the area
Ex: Blasting and storage of explosives

165
Q

Injuries by Wild Animals

A

Strict liability for injuries by wild animals

- Wild animals can never be domesticated (bear in tutu)

166
Q

Injuries for Domestic Animals

A

Strict liability for domestic animals requires knowledge of animals dangerous propensity

167
Q

Defenses to Strict Liabilities

A

Assumption of Risk: is a defense
Contributory Negligence: Not a defense
Undiscovered Trespasser: is a defense

168
Q

Product Liability and Negligence

A

Same law as negligence but concerning a product. Unreasonable conduct involving manufacture or sale of product which is actual and proximate cause of plaintiffs injury. Plaintiff must be reasonable foreseeable victim. Privity is not needed. Typical defendant is manufacturer but also includes seller and component party maker

Negligent failure to discover a defect is not a superseding cause. IF the seller is negligent in failing to correct a manufacturers negligence, the manufacturerer remains liable

Defenses:
Assumption of Risk: is a defense
Contributory Negligence: Not a defense

169
Q

Products Liability and Strict Liability

A

No fault liability for injury caused by a product which is defective and unreasonably dangerous
Plaintiff must first prove a defect: Defect can be in design, manufacture, warning or instruction.
Defect need not be the result of any negligence, just that defect exists
Plaintiff must also prove that the product is unreasonably dangerous
- Unreasonably dangerous: defined as either dangerous beyond what an ordinary consumer would contemplate or whether a less dangerous alterative is economically feasible
Foreseeable unintended use is not a defense. Ex: a car whose roof collapses when the car flips upside down
Design must account for unintended foreseeable uses
Duty to warn about unintended but foreseeable uses (ex: don’t drink pledge)
Causation: defect must have cause the injury. Look for a substantial change since the time the product left defendant

170
Q

Proper Defendants in Products liability and strict liability

A

Proper defendants: defendant must be a commercial supplier of the product. Includes sellers and lessor in regular business of selling or leasing; the manufacturer and a component party maker. IT does not include garage sales or loans from neighbors

171
Q

Proper Plaintiffs in Products liability and Strict Liability

A

Proper Plaintiffs: no privity is needed. All foreseeable victims are proper plaintiffs. This includes purchasers and bystanders

172
Q

Damages in Products Liability and strict liability

A

Damages: There must be a physical damage to a person or property (other than the product). If there is only economic loss, there is no strict liability recovery

173
Q

Defenses in Products Liability and Strict Liability

A 
Defenses 
Assumption of Risk: yes 
Contributory Negligence: no 
Comparative Negligence: split 
Strict liability does not apply to services (ex: tainted blood transfusion)
174
Q

Unavoidably safe products

A

No strict liability for unavoidably safe products (ex: knives, chemo drugs)

175
Q

Nuisance

A

Defendants substantial and unreasonable interference with plaintiffs use and enjoyment of property
Key Issues: Unreasonable interference, substantial to the average person, actual harm needed
Ex: Vibrations, odors, notice, light
The interference must be unreasonable
- Balance harm against social utility. Consider character of area (residential or commercial, frequency and time of day
The interference must be substantial to the average person. Plaintiffs special sensitivity is never considered
No need to prove intent to be a nuisance
Actual harm needed

176
Q

Nuisance Remedies and Damages

A

Equitable- Close down or limit hours

Damages- Reduction in property value

177
Q

Public Nuisance

A

Public Nuisance: when health, safety or property rights of general public are affected

178
Q

Private Nuisance

A

Private Nuisance: Must prove unique or particular injury apart from that of the public to prevail

179
Q

Vicarious Liability

A

Liability based on status not fault
Employer/Employee
1. Two types of agents : servants (employees) and Independent contractor
Test is right to control
Servant: right to control
Independent contractor: less right to control
Servants are paid salaries, not highly skilled, do not have own business, uses hoss tolls at boss place of business, are long term workers
Independent Contracts: Have own business, have more skill, get paid by the job, have own tools are short term workers
- No vicarious liability for independent contractor unless independent contractor is engaged in inherently dangerous activity or non delegable duty (landlords duty to repair). Liability for negligent hiring or supervision of independent contractor is not liability

180
Q

Vicarious liability for servant if servants tort within scope of employment

A

Vicarious liability for servant if servants tort within scope of employment
- Ask what, when, where, why
What was servant doing? Work, something else?
When were they doing it? Work hours or before or after?
Where were they doing it? Proper place or not?
Why were they doing it? Did employer tell them to?

Frolic: constitutes a major departure wherein the employee is acting on his own and for his own benefit, rather than a minor sidetrack in the course of obeying an order from the employer (employer not liable)
Detour: occurs when an employee or agent makes a minor departure from his employer’s charge (employer still liable)

Vicarious liability applies to all torts. Consider bounder in bar who commits batter to maintain order

Even if employer is vicariously liable, employee is also liable for own tort

181
Q

Collecting from Multiple Tort Feasers

A

General Rule: Joint and Several liability

  • Can collect from either tortfeaser the total of award
  • Could be in disproportionate amounts

Contribution: If defendant 1 paid more than her pro rata share to plaintiff, defendant 1 entitled to contribution from defendant 2 to equalize payment based on number of tortfeasers

Indemnity: one who is held liable for damages caused by another simply because of his relationship to that person may seek indemnification from the person whose conduct actually caused the damage
- When defendant seeks full reimbursement from another
Ex:
1. Seller liable under strict liability seeks indemnification from manufacturer
2. Employer held vicariously liable seeks indemnification from employee

182
Q

Deceased Tort Victim

A

Wrongful Death Statue; Damages for loss of support, services, companionship and consortium. Damages are paid to surviving family members of deceased victim
Survival Statute: Damages suffered between time of tort and action eg medical expenses. Damages paid to estate of deceased victim
Beneficiaries have no greater rights than victim would have had if victim had lived
Spouseal: Majority today no spousal immunity, so spouse can sue one another
Parent-Child: Majority today no parent-child immunity, so minor child can sue parents
Charitable: majority today no charitable immunity, so charity can be sued
Federal Government: sovereign immunity protects against tort suit, but federal tort claim act (FTCA) waives immunity for negligence. No punitive damages or strict liability claims permitted
State government: Sovereign immunity but must have limited waiver
Municipal government: immune while engage in governmental functions but not proprietary ones for example, garbage collection and parking lots

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