Torts Essay Flashcards
Negligence
To hold a defendant liable for negligence, the plaintiff must establish that the defendant owed a duty to plaintiff, breached that duty, the breach was the actual and proximate cause of the plaintiff’s harm and the plaintiff suffered damages
Duty
Under the majority, a duty is owed to plaintiffs within the foreseeable zone of danger. Under the minority, a duty is owed to all persons harmed by defendant’s conduct.
Majority (analysis)
Here, the zone of danger is [ facts est. ZOD]. D created the ZOS by [negligent thing D did that created danger]. Plaintiff [was/was not] in the ZOD because
Minority (analysis)
Here, plaintiff is a person injured by defendant’s conduct because
Standard of Care - RPP
The standard of care owed by D to P is that of a reasonably prudent person under similar circumstances measured by an objective standard. However, the SOC owed may change when certain types of Ds are involved or a statute defines specific SOC as a matter of law (Negligence per se).
Affirmative Duty to Act
In general, there is no affirmative duty to help others unless there is a special relationship with the plaintiff or one starts to act.
Special Duty - Children
Children <5 owe no duty, Children >5 held to SOC of a child of similar age, experience, and intelligence.
Special Duty - Wrongful Life / Wrongful Birth
Wrongful life = no duty. Wrongful birth = a duty to diagnose a defect and to properly perform a contraceptive procedure.
Special Duty - Pure Economic Loss
No duty to avoid unintentional infliction of economic loss on another. There is no recovery for pure economic loss unless there is physical injury or property damages.
Special Duty - Professionals
Are legally obligated to exercise the skill and knowledge normally possessed by other members of the same profession in good standing. A Dr needs consent and disclosure.
Special Duty - Firefighters Rule
Firefighters, police officers and other emergency personnel injured in the line of duty cannot sue for negligence if the resulting injury stemmed from the risks inherent in their work.
Special Duty - Common Carrier/ Inn Keeper Guest
Under CL, and modernly in some jurisdictions, common carriers and inn keepers are held to the highest duty of care, liable for slight negligence, consistent with practical business operations.
Special Duty - Landlord Tenant Guest Duty
No duty is owed by a landlord for a third party’s injury due to a dangerous condition on the premises in the possession and control of the tenant absent a showing the landlord had actual knowledge of the dangerous condition and the right and ability to cure the condition.
Special Duty - Lessor/lessee
A lessee has a general duty to maintain the premises; however, the lessor must warn of existing defects of which they are aware or has reason to know, and which they know the lesee is no likely to discover on a reasonable inspection.
Special Duty - Rescuer Doctrine
The original tortfeasor is liable for injury suffered by someone who attempts to rescue another in peril due to the tortfeasors negligent conduct when: (1) D was negligent to the person being rescued, (2) the peril or appearance of peril was imminent, (3) a reasonable person would conclude that a peril existed, and (4) the rescuer acted with reasonable care.
Special Duty - Premises Liability
The duty owed by a landowner to a potential plaintiff depends on the status of the individual on the land: Trespasser; licensee; or invitee.
Premises Liability - Undiscovered Trespasser
Is a person who enters the land possessor’s property without valid consent or necessity; no duty is owed.
Premises Liability - Known Discovered Trespasser
A duty is owed to a discovered trespasser to warn of or make safe, artificial conditions known to the landowner that pose a threat of death or serious bodily harm.
Premises Liability - Licensee
(e.g. Social Guest) enters the land with the landowner’s permission for the licensee’s own purpose or business, rather than the landowner’s benefit. The landowner has a duty to warn of or make safe, known hidden dangers, artificial or natural, on the land that pose an unreasonable risk of harm that the licensee is unlikely to discover.
Premises Liability - Invitee
is a person who is entitled on the property for a purpose connected with the business of the landowner or enters the land as a member of the public for purposes of which land is held open to the public. A duty is owed to make reasonable inspections to discover non-obvious conditions and thereafter make them safe. A warning is sufficient to make them safe. An invitee may lose their status if they exceed the scope of their invitation.
Premises Liability - Rowland v. Christen
Regardless of the status, the possessor owes everyone the SOC of a reasonable prudent land possessor.
Premises Liability - User of Recreational Land
A landowner who permits the general public to use their land for recreational purposes without charging a fee is not liable to individuals who suffer an injury unless the landowner willfully and maliciously failed to guard against or warn of known dangers.
Premises Liability - Attractive Nuisance Doctrine
A duty is owed to child trespassers to warn of, make safe, artificial conditions on the land provided that: (1)the artificial condition exists in a place that the possessor has reason to know that children are likely to trespass, (2)the possessor has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm, (3) the children due to their age cannot appreciate the danger, (4) and the risk of harm outweighs the expense of making the condition safe.
Breach of Duty
A breach of duty occurs when one falls below the standard of care established supra. P has the burden of proof beyond the preponderance of the evidence.
Breach - Constructive Notice
Dangerous conditions continuous or easily foreseeable means that the D should have been aware of the conditions and exercised reasonable care.
Breach - Reasonably Prudent Business
A business breaches when they fail to act as a reasonably prudent business of an entity of similar size, experience and location.
Breach - Negligence per Se
Negligence per se establishes that a duty was owed and defendant breached that duty. A defendant is liable under negligence per se when D violated a statute, the P belongs to a class of persons the statute aims to protect, and the P suffered the type of harm the statute aimed to prevent.
Breach - Res Ipsa Loquitur
The doctrine of re ipsa may be used to establish breach in situations where the events lead to an inference that the D was likely negligent. A party can rely on this doctrine where: (1) the event is the type that does not ordinarily occur in the absence of negligence; (2) the instrumentality was in the D’s exclusive control, and (3) the P could not have caused the accident.
Causation
Defendant’s breach must be the actual and proximate cause of P’s injuries.
Actual Cause
To prove actual cause the P’s injury would not have occurred but for the D’s breach. If “but for” cannot be shown then most courts are willing to implement the substantial factor test.
Actual Cause - Concurrent Cause
When two acts combine to cause an injury, but neither act alone would have been sufficient the actors are jointly and severally liable.
Actual Cause - Joint Cause
Two acts commingle and either one would be sufficient to cause the injury ( substantial factor test). Actors are jointly and severally liable. If a liable party pays more than their fair share, that party can seek contribution.
Actual Cause - Superseding Cause
Superseding cause severs the causal connection.
Proximate Cause
D is liable for foreseeable results. Results are foreseeable when they are normal incidents of and within the increased risk of defendant’s act. [It is the type of injury that might normally happen from D’s negligent conduct].
Damages
D could be liable for medical costs incurred before trial and future costs, loss of earnings incurred before trial and future loss, general pain and suffering, and property damage. Future damages may require expert testimony. Assuming the P prevails, the cause of action for negligence, then the spouse will have a claim for loss of consortium and can recover damages from before and after trial.
Damages - Joint and several liability
Each party is independently liable for the full extent of the damages stemming from the act. The P may collect the full value of the judgment from anyone of them. However, if the actions are independent, the plaintiff’s injury is divisible, and it is possible to identify the portion of injuries caused by each defendant, then each will only be liable for their portion.
Joint & Several - Contribution
The defendant who pays more than her share of damages under joint and several liability can assert a claim against jointly liable parties for the excess paid (usually proportional to relative fault).
Joint & Several - 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 damages. (available in contract, vicarious liability, and strict liability).
Wrongful Deal Statute
Recovery in a wrongful death action is allowed only to the extent that the deceased could have recovered in a personal injury action had he lived. It is limited to pecuniary losses such as loss from support of : household services, anticipated financial support, attention and affection.
Survival Statute
Creates an independent cause of action on behalf of the estate. It allows the estate to be awarded damages that the deceased could have recovered if they had recovered from the injury such as loss of earnings, medical expenses, damage to personal property.
Defense negligence
While under the traditional rules of contributory negligence and assumption of the risk a plaintiff’s conduct could be barred from recovery, most jurisdictions now follow the modern rule of comparative negligence, whereby plaintiffs recovery is merely reduced according to the percentage of their fault.
Defense - Contributory Negligence
Contributory negligence is conduct on the part of the plaintiff, which results in his injury and falls below the SOC which is required for their own protection. It is a complete bar to recovery, unless the D’s conduct was intentional or grossly negligent or had the Last Clear Chance to avoid the accident.
Defense - Comparative Negligence
In “modified” jurisdictions, so long as the plaintiff’s negligence remains less than the D’s negligence then P may recover. In “pure” jurisdictions, the P’s recovery is reduced by any percentage that P is found negligence even if P is more negligent than D. In both, the P’s
Defense - Assumption of the Risk
The plaintiff must have (1) actual knowledge, (2) appreciate the risk, and (3) voluntarily encounter the risk. (involuntary would be if they had no other options).
Negligent Infliction of Emotional Distress (NIED) - 3 types
When the P’s damage is only emotional distress they may have a claim for NIED. There are 3 ways to recover: (1) Zone of danger; (2) bystander Liability; and (3) special relationship.
NIED - Zone of Danger
The p can recover for NIED if the D negligently caused a threat of physical impact; the P was within the zone of danger of the threat of physical impact, and the threat caused emotional distress.
NIED - Bystander Liability
The p bystander can recover for NIED if: (1) the D negligently inflicted bodily injury to another; (2) the p is closely related to the person injured by D; (3) the p was present at the scene of injury; and (4) the p personally observed the injury occur. Needs to have a physical manifestation of symptoms, that would not be anticipated in a disinterested witness.
NIED - Special Relationship
The P can recover for NIED in certain circumstances where a preexisting relationship exists between the D and P (e.g. Dr/Patient). This arises when the D negligently mishandles a corpse or the D provides false medical information.
Nuisance
Nuisance can be intentional, negligence, or strict liability.
Public Nuisance
An unreasonable interference with the health, safety, or property rights of the community at large. (e.g. air pollution, interference with use of public property). Recovery is only available if a private party suffers some unique damage not suffered by the general public.
Private Nuisance
A defendant is liable for private nuisance when they create a (1) substantial and (2) unreasonable interference with plaintiff’s use or enjoyment of property that he (3) actually possesses or to which plaintiff has right of immediate possession.
Pvt. Nuisance - Substantial Interference
The interference is substantial if it is offensive, inconvenient, or annoying to an average reasonable person in the community. (i.e. hypersensitive plaintiff is not average or reasonable).
Pvt. Nuisance - Unreasonable Interference
The interference is unreasonable if the nature and gravity of the harm OUTWEIGHS the burden of preventing the harm and the usefulness of the conduct.
Pvt. Nuisance - Plaintiff Possessory Interest
Plaintiff possesses or has right of immediate possession of land when they own, lease, occupy, or control the property.
Pvt. Nuisance - Damages
Damages include depreciation in property value and resulting harm, including personal injury, and harm to property. Punitive damages may be imposed if defendant acted willfully, wantonly, recklessly, or with malice.
Nuisance - Injunction
Where damages are unavailable or inadequate, a court may grant an injunction. The injunction orders a D to stop, remove, refrain, or restrict a nuisance or abandon plans for a threatened nuisance. A court will find damages inadequate when the nuisance is continuing, or it will cause irreparable injury. In this instance, a court will balance the hardships associated with granting an injunction.
Nuisance: Injunction - Abatement
Abatement is a self-help remedy, plaintiff can abate the nuisance in limited circumstances.
Nuisance Defenses
(1) Necessity; (2) Coming to the Nuisance; (3) Zoning; (4) Contributory neg/ Comparative neg.
Nuisance Defense: Necessity
D performed an act that was in the greater good of the public and in doing so caused damaged to P.
Nuisance Defense: Coming to the Necessity
D may argue that P “came to the nuisance” by moving onto the land next to an already operating source of interference.
Nuisance Defense: Zoning
Legislative authority won’t excuse a D from liability if the conduct was unreasonable.
Intentional Torts
(1) Battery; (2) Assault; (3) False Imprisonment; (4) Trespass to Land; (5) Trespass to Chattels; (6) Conversion; (7) Intentional Infliction of Emotional Distress
Intent
Intent requires only a volitional act with knowledge that there is a substantial certainty that the result will follow. A good faith mistake does not negate intent.
Transferred Intent*
Intent will transfer to the actual person harmed or tort caused if D intends to commit a tort but instead commits a different tort or harms a different person. This applies to: battery, Assault, False Imprisonment, Trespass to Land, and Trespass to Chattels.
Eggshell Skull plaintiff
A defendant is liable for the full extent of a plaintiff’s injuries due to preexisting medical condition or vulnerability, even if the extent is unforeseeable.
Nominal damages
nominal damages acknowledges the wrong when plaintiff has no actual damages.
Battery*
Is the intentional harmful or offensive contact of another without their consent or legal privilege. Damages are presumed, special damages are recoverable. Contact is offensive when a reasonable person finds the contact offensive, unless defendant is aware the plaintiff is hypersensitive.
Battery - Analysis
Here, D [purposefully / knew to a substantial certainty he would] cause the P to suffer harmful or offensive contact because. D was a substantial factor because. The contact was harmful because. The contact was offensive because.
Assault*
Assault is the intentional act that places another in the reasonable apprehension of an imminent or harmful offensive contact without consent or legal privilege. Damages are presumed, special damages recoverable.
False Imprisonment*
False imprisonment is the intentional confinement or detainment of another to a bounded area for an appreciable time without consent or legal privilege. Damages are resumed, special damages recoverable. Direct or indirect threats ( no future threats, no moral pressure) force directed at plaintiff, or immediate family member or property. Must be aware of confinement.
False Imprisonment Defenses
(1) consent; (2) legal justification; (3) shopkeepers privilege
