Torts exam

Question 1

Negligence per se

Answer 1

a. Is plaintiff in the category of persons the statute was intended to protect?
b. Is plaintiff’s injury in the category of harms that the statute was intended to prevent?
c. Is it appropriate to impose tort liability for failure to meet one’s duty under the statute?
*IF YES to all three, then defendant may have been negligent

Question 2

Res Ipsa

Answer 2

i. The accident is of a kind that doesn’t normally occur absent negligence (somewhere)
ii. The thing is under management/exclusive control of defendant (alternatively, Restatement 2nd, other responsible causes, including the conduct of plaintiff and third parties, have been sufficiently eliminated by the evidence)
iii. Restatement 2nd: The indicated negligence is within the scope of defendant’s duty; we did NOT discuss this, but it’s listed in the Cruz case

Question 3

Duty to rescue/ failure to act

Answer 3

a. Is there a special relationship between the parties?
b. Was the harm foreseeable?

Question 4

NIED

Answer 4

emotional distress alone is not normally compensable in tort.

Physical impact Rule
(1) Normal person standard of conduct
(2) plaintiff has the burden of proof that the physical harm or illness is the natural result of the fright proximately caused by defendants conduct

(exception/ minory daley v. lacroiz explosion)

Question 5

Duties of landowners to Ps outside the premises

Answer 5

i. Natural conditions : no duty, except as to trees where landowner knew or should have known the tree is defective
ii. Artificial conditions: duty of reasonable care to those outside the premises

Question 6

Duties of landowners to Ps on the premises (trespassers)

Answer 6

Generally, no duty

Also note:
1. cannot wantonly injure trespassers
2. unless trespasser is discovered
3. or trespassers are very frequent on a limited area of the land
4. duty to warn of concealed dangers

Question 7

Duties of landowners to Ps on the premises (licensees)

Answer 7

Licensees: duty to warn of hidden dangers that D knows about and P doesn’t know about

Question 8

Duties of landowners to Ps on the premises (invitees)

Answer 8

Duty of reasonable care

Question 9

Duties of landowners to Ps on the premises (children)

Answer 9

1. Attractive Nuisance: If the landowner maintains a condition on the land that he has reason to believe will lead children into danger, the landowner has a duty to use ordinary care to protect the children from harm
2. Restatement 2nd: Artificial Conditions Highly Dangerous to Trespassing Children
   a. D has to know/reason to know children are likely to trespass on the condition
   b. D knows/has reason to know the condition poses an unreasonable risk of death or serious bodily harm to such children
   c. The children because of their youth do not discover the condition/realize the risk
   d. Utility of the condition to D and burden of eliminating the danger are slight compared to the risk to the children
   e. D fails to exercise reasonable care to eliminate the danger or otherwise protect

Question 10

Rejection of TLI

Answer 10

The proper test to be applied for determining the liability of a landowner is whether in the management of his property he has acted as a
*reasonable man given the probability of injury to others. *

The law has moved toward imposing a duty on landowners and occupiers to exercise reasonable care in all circumstances.
Thus, a person’s status as an invitee, licensee, or trespasser may be relevant, but only for determining whether the landowner acted as a reasonable person under the circumstances.

Question 11

Duties of landowners to Ps on the premises (landlord and tenant)

Answer 11

current rule, landlord has duty of reasonable care to those on the premises);
(duty of landlord to protect tenants against criminal acts of third parties, general rule and exception)