Torts Essay Flashcards
Elements of Negligence
Duty (incl. Standard of Care), Breach, Causation, Damages, Defenses
Duty
A defendant owes a duty of care to all foreseeable persons that may be injured by D’s failure to meet a reasonable standard of care
Standard of care
That of a reasonably prudent person under the circumstances
Standard of care for possessors of land: invitee
REasonable care, including duty to inspect property, discover unreasonably dangerous conditions, protect invitee from those conditions
Standard of care for possessors of land: licensees
duty to correct or warn of concealed dangers known or which should have been obvious, but no duty to inspect; reasonable care in activities
Standard of care for possessors of land: trespassers
duty to refrain from willful, wanton, reckless, or intentional misconduct; warn or protect discovered trespassers from concealed, dangerous, artificial conditions, but not un-serious natural ones; reasonable care in activities; no duty to undiscovered trespassers
Standard of care for possessors of land: modern approach
reaosnable care to all except flagrant trespassers, to whom only owe duty not to act in intentional, willful, wanton manner
Attractive nuisance
Land possessors may be liable for injuries to children if:
i) Artificial condition exists in a place where possessor knows/should know children are likely to trespass;
ii) Land possessor knows/should know the condition is unreasonable risk of harm;
iii) Children don’t discover or can’t appreciate danger;
iv) Utility to land possessor of maintaining condition and burden of eliminating slight compared to harm;
v) Possessor fails to exercise reasonable care to protect children
Standard of Care: Landlords
liable for injuries in common areas, hidden dangers fails to warn about, premises leased for the public’s use, negligent repairs, or hazard has agreed to repair
Standard of care: tenants
injuries to third parties arising from dangerous conditions within tenant’s control
STandard of care: sellers of property
duty to disclose concealed / unreasonably dangerous conditions known to seller, if had reason to know buyer wouldn’t discover
STandard of care: common carriers
highest duty of care, liability for slight negligence (except 3d restatement)
Standard of care: bailor (lender)
gratuitous = known dangerous defects; compensated = known or should have been known defects
Breach
Most J’s compare D’s conduct to that of a reasonably prudent person. The modern trend is to conduct a cost-benefit analysis, considering 1) Foreseeable likelihood conduct would cause harm; 2) Foreseeable severity of resulting harm; 3 D’s burden in avoiding harm
Standard of care: bailee (borrower)
no benefit = gross negligence; benefit = extraordinary care
Negligence Per Se
Determines standard of care by violation of a statute, which establishes negligence as a matter of law.
REQUIRES:
i) Criminal or regulatory statute imposing a specific duty for protection
ii) D violates statute by failing to perform duty
iii) P is in class of people intended to be protected AND
iv) Harm is of type statute intended to protect against.
Defenses to negligence per se
- compliance would have been greater risk of harm
- violation reasonable because of disability or youth
- D exercised reasonable care in attempting to comply
- Statute is vague
- Reasonable ignorance of statute
- Plaintiff violated
Causation for Negligence
Actual cause, proximate cause, superseding cause
Negligence Damages
P must prove actual injury, not just economic loss.
Defenses to negligence
Contributory negligence: plaintiff’s negligence is a complete bar to recovery (in traditional contributory jx). (Can briefly mention comparative too.)
Assumption of risk: if voluntary and knowing, bars recovery
Strict liability: abnormally dangerous activity
D engaged in an abnormally dangerous activity will be held strictly liable for personal injuries and property damage caused by the activity, without any proof of negligence.
1) High risk of harm, even with due care;
2) Not commonly found in community
MUST STILL PROVE: causation, damages, defenses
Strict liabiltiy: animals
Strict liability applies to owners of wild animals that are not normally domesticated and are dangerous, or domestic animals if the owner knows or should know of the animal’s dangerous propensities.
Strict Products Liability
D who is in the business of selling a commercial product may be strictly liable for a defective product causing foreseeable injuries.
Strict Products Liability Elements
- Absolute duty as commercial seller (in business of selling a commercial product)
- D produced or sold a defective product
- Defect existed when it left D’s control
- Defect caused plaintiff’s injuries when used in reasonably foreseeable way (including misuse) (actual and proximate cause)
- Damages (personal injury or property damage)
- Defenses
types of product defects
o Manufacturing = deviation from what manufacturer intended the product to be. Measured by whether product conforms to D’s own specifications.
o Design = consumer expectation test: dangerous beyond expectation of ordinary consumer. OR risk utility test: P proves reasonable alternative design that is economically feasible was available to defendant, and failure to use rendered unsafe.
o Failure to warn = foreseeable risks of harm not obvious to ordinary user, which could have been reduced or avoided with reasonable instructions or warnings.
defenses to strict products liability
contributory negligence: complete bar where P unreasonably used known defect (although not most places anymore), or reduces recovery in comparative J
assumption of risk: knowing and voluntary assumption of risk bars recovery
Warranties
Products liability actions brought under warranty theories can be brought against retailers, manufacturers and distributors. Plaintiffs need not prove fault, but must provide seller with notice of breach within statutory period.
Types of Implied Warranties
Implied warranty of merchantability
Fitness for a particular purpose, if seller knows purpose and buyer relies on seller’s skill / judgment
Defenses to warranties
Disclaimers, but any limitation of consequential damages for personal injury for consumer goods is prima facie unconscionable
Assumption of risk
Comparative Fault
Product Misuse
Defamation
A plaintiff may bring an action for defamation if:
i) The defendant’s defamatory language;
ii) Is of or concerning the plaintiff
iii) Is published to a third party who understands its defamatory nature; AND
iv) It damages the plaintiff’s reputation.
