Torts Final Flashcards
Battery Rule
Battery occurs when an actor intends to make a harmful or offensive contact and the harmful or offensive contact occurs.
Battery Intent
Single Intent: The intent required for battery is the intent to cause a contact with the person of another. The actor need not intend to cause harm or offense to the other.
Dual Intent: ○ Intend contact AND intend contact to be harmful/offensive
Transferred Intent: ○ If A intends to hit B, but A unintentionally hits C, then A is liable to C as the intent to hit B transfers
○ Policy – requisite intent to contact one person, still liable for contact to another
Battery Conduct
any voluntary act that leads to contact with a person, or to an object that closely identifies with that person (can be direct or indirect)
Battery Result
Offensive or harmful contact to that or a third person, or to an object that closely identifies with that person. Harmful contact = causes actual pain, injury or disfigurement. Offensive Contact = contact that would be considered offensive by a reasonable person of ordinary sensibilities
Battery Defenses
Defense of Property, Consent, Privilege, Spirit of Pleasantry
Assault Rule
assault occurs when the actor intends to cause harmful or offensive contact OR an imminent apprehension of such a contact AND the person is put in such imminent apprehension
Assault is designed to protect
● Your peace of mind and your anticipation of force against you
● Protects you so you have emotional wellbeing
Assault Intent
is acting with the purpose of producing the consequence or knowing that the consequence is substantially certain to result
Intent to cause imminent apprehension (intent to make P anticipate the contact) OR intent to cause harmful or offensive contact (intent to inflict an actual battery)
TRANSFERRED INTENT
Assault Conduct
an offer or attempt (attempt to strike- could miss) to make contact
Assault Result
imminent apprehension of harmful or offensive contact
False Imprisonment Rule
actor intends to confine another in an enclosed space, resulting in total involuntary confinement of another & the other is aware of confinement
False Imprisonment Intent
Intent to Confine
False Imprisonment Conduct
The act that directly or indirectly leads to a total confinement
● Even if there is a means of escape, if that means is unreasonable it is confinement (injury to yourself, or others, or harm your dignity)
False Imprisonment Result
total and involuntary confinement, and the person is aware of that confinement
False Imprisonment Defense
● they had a reasonable escape, shopkeepers privilege, consent, defense of property
● The larger it gets the more likely it gets that the court says you have freedom of movement
● Larceny/Shopkeeper’s Privilege: If authorized merchant detains suspect in a reasonable manner, for a reasonable length of time, and under reasonable grounds AND IS CORRECT
Intentional Infliction of Emotional Distress Rule
there is IIED when the actor by extreme and outrageous conduct intentionally or recklessly causes severe and emotional distress to another
Intentional Infliction of Emotional Distress Intent
intentionally or recklessly causes emotional distress to a person or knows with substantial certainty that emotional distress will occur
● Transferred intent- has to be a family member, and that family member has to be there to witness it- extremely limited
● Reckless- blatant/deliberate disregard to high risk of injury
Intentional Infliction of Emotional Distress Result
the plaintiff has to suffer severe emotional distress, and if bodily harm results you can recover for that as well
● Very narrow; difficult to prove - many courts have implied that medical testimony is necessary except in the most egregious cases
Trespass to Land Rule
The actor intends to enter or cause an object to enter another’s land without permission, resulting in the unauthorized entry of the other’s land.
Trespass to Land Intent
intent to act (do the thing that makes you end up in that location; ex. step onto land), not necessarily knowing that it is someone’s land in particular
You only have to intend to enter the piece of property you in fact enter, do not have to have intent to trespass
Very low level of intent needed- only need intent to want to be at the place you end up being
STRICT LIABILITY TORT- even without purpose, if your intent to take the step that puts you on the property, that satisfies the intent element necessary
TRANSFERRED INTENT
Trespass to Land Conduct
Any voluntary act which causes the actor to unlawfully enter another’s land.
A voluntary act interfering with another’s property rights
Trespass to Land Result
unauthorized entry onto another’s land
Trespass to Chattels Rule
The actor intends to physically interfere with, dispossess, or destroy another’s chattel, such interference, dispossession, or destruction occurs, and the other is deprived of the use of his chattel.
Trespass to Chattels Intent
an actor must intend to interfere with, dispossess, or destroy another’s chattel, with a purpose of causing trespass or with substantial certainty that a trespass will result
Trespass to Chattels Conduct
a voluntary act that interferes with, dispossesses, or destroys another’s chattel
Even if no physical damages, there can be trespass if unpermitted use is for an extended time
If the chattel is destroyed, the tort of conversion results and the person has to pay for the value of the chattel
Trespass to Chattels Result
chattel is dispossessed or impaired, or the possessor is deprived of the use of the chattel for a substantial time
Defenses to Intentional Torts
Privilege Consent Insanity Defense of Property Recapture of Chattels Private Necessity
Privilege as a Defense to Intentional Torts
a tort does occur, but it does not matter because it was within the scope because the actor is privileged (prima facie case is met, but defendant has a right to the conduct)
o Defenses to torts are normally called privileges
o A circumstance that justifies and excuses tort liability
Consent as a Defense to Intentional Torts
totally negates a tort from occurring, a tort cannot happen if you say you are okay with something
Insanity as a Defense to Intentional Torts
generally, not a defense to tortious conduct, but where an insane person, by his act, does intentional damage to the person or property of another, he is liable for that damage in the same circumstances in which a normal person would be liable
o In order to be liable, the insane person must have been capable of entertaining the same intent and must have entertained it in fact (similar to dual intent)
o The intent of an insane person does not need to be rational in order to find him liable
o An insane person can be found liable for their torts, mental insanity is not a complete defense
Defense of Property as a Defense to Intentional Torts
one may use reasonable force to prevent the commission of a tort against his property
o If an actor enters without force, the possessor must request that the actor leaves before using actual, reasonable force
You have to request him to leave and if he does not, then you can use reasonable force to eject him
o If one comes in with force, the possessor does not need to ask him to leave but is allowed to lay hands on his immediately
It is returning violence with comparable violation
o A possessor may not wound or cause serious bodily harm to another in defense of property
Recapture of Chattels as a Defense to Intentional Torts
you have a privilege to use reasonable force to recapture your chattels or property taken unlawfully
o Has to be reasonable force, cannot wound or use serious force merely in defense of property
o No violence is necessary or required unless the person used violence
o The dispossession must be by force or fraud, not something you voluntarily gave up
o MISTAKE: your mistake eliminates your privilege
If you run after someone who you think has stolen something and they have not done anything wrong, you lose the privilege of using reasonable force to recapture the chattel
Once you are out in public you are upsetting the status quo of the streets, you look like you are putting people in danger, so you better be right
o REQUIREMENT OF HOT PURSUIT: only a valid defense under hot pursuit; you have to immediately go after you notice
Private Necessity as a Defense to Intentional Torts
a person has the right to enter another’s land without permission in order to avoid imminent serious harm to his life or his property by naturally occurring causes or human causes
o The doctrine of necessity applies with special force to the preservation of human life
(personal livelihood > personal property)
• CIRUMSTANCES FOR NECESSITY
o Permission to remain on the land of another in response to the threat of imminent harm to person or property; must be reasonable
• OTHER RULES:
o a party who damages property of others while acting with private necessity must compensate the property owner for the resulting damages
o Necessity, actions required to save lives or property, justifies entry upon land and interference with personal property that would otherwise have been trespass.
o You can use other people’s property if it is going to save you or your family or your personal property
Elements of Negligence
Duty Breach Causation Proximate Causation Damages
Negligence: Duty Definition
A LEGAL OBLIGATION TO CONFORM ONE’S CONDUCT TO A STANDARD OF CARE NECESSARY TO AVOID CREATING UNREASONABLE RISK OF HARM TO OTHERS
THE GENERAL RULE OF DUTY- to conform one’s conduct to a standard necessary to avoid an unnecessary risk of harm
Negligence: Breach Definition
Did the D conduct, whether by way of act or omission, fall below the applicable standard of care?
1. Failure to live up to the standard of care, by act or omission
Negligence: Causation Definiton
Was the D failure to meet the applicable standard of care causally connected to P harm? Causation in Fact: Did what I do bring about injury?
1. D caused P injuries
Negligence: Proximate Causation Defintion
- For what extent of harm, will a D be found liable who breached duty of care and did in fact cause the injury but the damages are too remote
- See courts talk about this when they are really talking about cause in fact
AKA: Scope of Liability
Negligence: Damages Defintion
Was the D failure to meet the applicable standard of care connected to p harm?
1. Must show damages
Two Views on Duty
■ Cardozo: A duty is owed to the reasonably foreseeable plaintiff; must be close enough to owe a duty
■ Andrews: A duty to one is a duty to all; there is a duty to society as a whole; a duty to everyone
Affirmative Duties
■ Nonfeasance- Failure to act
■ Misfeasance- Wrongful act
Good Samaritan Doctrine
there is no legal duty to protect/rescue a stranger from injury where the defendant was in no way responsible for creating the dangerous situation in the first place
o No duty to render affirmative aid; no duty to act affirmatively to aid of a stranger in an emergency
Gratuitous Undertakings
when one owes no duty to act affirmatively to another but gratuitously chooses to, he assumes a duty to exercise reasonable care in performing his undertaking
• UNDERTAKING- performance of a task/rendering a task OR promise/agreement to perform a task voluntarily
• Must not increase the risk of harm to the other
• Must not cause the other to suffer harm in reliance on the undertaking
• EXCEPTION: an actor has no duty to aid EXCEPT when the actor takes charge of another who reasonably appears to be imperiled and helpless/unable to protect himself
o Then, the actor has a duty to exercise reasonable care while the other is within the actor’s charge
o If the actor discontinues aid, they must refrain from putting the person in a worse position than they were prior to when they took charge
o AND if the other person reasonably appears to be in imminent peril of serious harm at the time the actor wants to stop rescuing, they must exercise reasonable care in regard to that peril before stopping
Special Relationships Duty
a duty arises to prevent physical harm when there is a special relationship between the actor and the third person which imposes a duty to control, or a special relationship between the actor and the other which imposes a duty to protect
• Generally, a duty arises only if the criminal act was reasonably foreseeable
Invitees
Highest duty; Occupier has a duty to take reasonable care that premises are safe; included reasonable inspections to find defects
● Business visitors- A business visitor who is invited or permitted to enter or remain on the land for a purpose directly or indirectly connected with business dealings between them
● By the invitation, express or implied, of the occupier
Licensees
Less stringent; Occupier has no duty to ensure that premises are safe, but is bound to not create traps or allow concealed dangers which are not apparent to the visitor but are known to the occupier to exist on the premises; there is a duty to warn of latent or concealed dangers that the owner already knows or should know about
● Social guest
● With the leave and license, express or implied, of the occupier
● A person like a social guest who is not an invitee and who is privileged to enter or remain upon land by virtue of the possessor’s consent
Trespassers
No duty except to injure intentionally or recklessly
● Enter on land without express/implied permission or without some privilege (i.e. law enforcement has privilege to enter)
● The occupier has no duty to take reasonable care for his protection or even to protect him from concealed danger
○ Has a duty to not intentionally or recklessly injure the trespasser
○ Definition of reckless: Actor knows of facts that would lead a reasonable person to find that risk is substantially greater; more harm/risk needed than for negligence
Attractive Nuisance Doctrine
There is a duty to eliminate danger or otherwise protect children when there are highly dangerous, artificial things on the land
Subjective Standard of Care
● What is in the actors mind/attitude
● HYBRID STANDARD:
○ Different standard of care for children: Lower standard of care, but not an automatic defense! Jury can still find a minor negligent, it’s just harder to prove
○ Experiences/intelligence levels levels of individual children can be taken into account (and emotional/mental deficits)
Objective Standard of Care
Standard: External, invariant
● Concerns with actors conduct
● Reasonable person should have a general knowledge of how the world works (ex. If I touch a fire, I’ll get burned)
● External factual circumstances affect what reasonable care is (ex. Shooting a gun in an open field vs. in a crowded street)
Default Standard of Care
Reasonably Prudent Person
Reasonably Prudent Person Standard
● Hypothetical person with average mental capacity, abilities, intelligence, perception, memory (legal fiction)
● Rule: A person must act as a reasonable person would under the same or similar circumstances
Children Special Rule
● Children get special standard of care (lower) when in childhood activities, get RPP standard of care when practicing adult activities
Rule of 7
■ Children under 7: Can’t be liable/ incapable of negligence
■ Children 7-14: presumed incapable of negligence until proven they are with evidence
■ Children 14+: presumed capable of negligence but can be rebutted
■ Third Restatement Rejects this theory, most courts follow Daniels
Standard of Care for Elderly
There is no separate standard of care for the elderly
■ D should be held to RPP standard and infirmities can be used to show that D was negligent
■ WHY: Need to protect the general welfare of the public; those who create risks should bare the costs
Beginners vs. Experts
■ Uses the standard of care of the reasonably skilled person
● Incentive for people to increase their skills
● “Beginner” = Too subjective
Superior Knowledge Rule
If you are an expert possessing superior knowledge, then you must exercise that standard of care
Breach Mental Capacity Defense
● Insanity- institutionalized
○ Exception: single instance of insanity/hallucination without foreseeability
● Some jurisdictions allow mental disability to be taken into account but most do not
Insanity as a Defense to Intentional Torts
generally, not a defense to tortious conduct, but where an insane person, by his act, does intentional damage to the person or property of another, he is liable for that damage in the same circumstances in which a normal person would be liable
o In order to be liable, the insane person must have been capable of entertaining the same intent and must have entertained it in fact (similar to dual intent)
o The intent of an insane person does not need to be rational in order to find him liable
o An insane person can be found liable for their torts, mental insanity is not a complete defense
Hand Formula
● B < PL ○ You owe a duty ● B > PL ○ no duty ● B- burden ● P- probability of the harm/injury ● L- gravity of the loss/severity of the harm
Custom
■ Custom is a fairly well-defined usage or a way of doing a particular thing among a group of people, trade-calling or profession.
■ Either party may want to show custom
■ P- to show D failed to conform
■ D- to show they conformed and therefore used reasonable care
■ Restatement 295a. Comment b- evidence of custom is relevant as a composite judgment; feasibility of precautions; difficulty of accepted change in a method; the expectation that people will do the same as done in the custom community
■ Evidentiary weight of custom: custom is used as evidence that the defendant is negligent when the defendant does not comply with custom; custom is used as evidence that D was not negligent when D complies with custom.
Medical Custom
■ Medical Malpractice (Custom is the standard of reasonable care)
Negligence Per Se
negligence as a matter of law
● Conclusive evidence of negligence
But-For Rule
■ Cause in Fact exists if P’s injury would not have occurred BUT FOR D’s negligent conduct
■ If someone was negligent but their negligence was not the cause (the conduct would have still happened regardless of the negligence) then here the negligent act is not the cause of the accident
■ Includes D’s conduct as a cause when harm would not have occurred if D was not acting negligent and excludes D’s conduct as a cause when harm/accident would have occurred even if D was not acting negligent
■ “But-For” has to be by a preponderance of evidence (51%)- more probable than not
Factual Cause
- Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct
Joint and Several Liability
means that each of two or more defendants who contribute causally to an indivisible injury of the plaintiff may be liable for plaintiff’s entire damage award. • Plaintiff may recover her whole award from any one defendant or part from each.
• Of course, plaintiff may not recover her whole damage award more than once; she can’t recover her whole award two or more times.
Several Liability
means that each defendant would be liable to plaintiff for only a portion of her award.
• Apportionment of damages among defendants may be done on the basis of causation where the harm to plaintiff is capable of division–i.e. where each defendant has caused only a separable part of plaintiff’s injuries.
• Today apportionment of damages among defendants may also, or instead, be done on the basis of each defendant’s fault, a topic we may or may not discuss depending on time.
Two Ways to Apportion Liability Damages
- On the basis of causation
* On the basis of fault
Market Share Liability
o Measure the likelihood that any D was the manufacturer who caused the injury
o % of the market is the probability that any 1 D caused the harm to P
o P had to join in the action and bring together Ds whose total market share added together would have a substantial share of the market
This is so the likelihood that one of the D is liable is higher than not
Avoid finding a D liable who most likely was not the cause
o From there, the burden of proof was shifted to each D to prove that they were not the cause
o Each D is liable for the % of the market they owned
Also dictates the amount of damages they owe and gives a probability of the odds each D is liable
Proximate Cause
a. Relationship must be close enough between defendant’s negligence and the plaintiff’s injury that court will believe it’s just or useful to impose liability (Compare this definition with Garlock’s definition on midterm review tape)
b. Must first determine that D is negligent (has breached their duty) and then that there was sufficient relationship between the negligence and harm
c. Doctrine of policy and fairness
d. When the harm comes from a risk different than the harm that was a but-for cause, resulting from the negligence
Foreseeability Rule
proximate cause exists if D’s negligence caused harm if BUT ONLY IF the particular type of injury to P was foreseeable, to the reasonable person.
o EXTENT of harm need not be foreseeable
o MANNER in which foreseeable harm occurs need not be foreseeable (Need not foresee the way/chain of events that led to the harm)
Intervening Cause
occurs after D’s negligence before P’s injury
Superseding Cause
if it breaks the chain of causation
■ Every superseding cause is intervening but not every intervening cause is superseding
Intentional Infliction of Emotional Distress Conduct
so extreme and outrageous that no reasonable person would expect you to endure such a thing; goes beyond decency in a civilized society
SPECIAL SENSIBILITY- if you know someone is particularly susceptible
NOT: mere insult without that person having special sensibility
Express Consent as a defense to intentional torts
can be expressed when the plaintiff has expressly shown a willingness to submit to the defendant’s conduct
General Doctrine of Privilege as a defense to intentional torts
any circumstance that justifies or excuses a prima facie tort
Pleasantry as a defense to intentional torts
any friendly or casual touching indecent to everyday life
Implied Consent as a defense to intentional torts
could occur in the case of major internal operations and in sports settings
EMERGENCY RULE: medical treatment will be lawful when an emergency requires acting to preserve the health or life of the patient
• The plaintiff is not capable of consent and consent cannot be obtained from someone who has the authority to consent for the plaintiff
SILENCE AND ACTIONS WITHIN THE SCOPE OF THE SITUATION: if everyone else is gesturing a certain way for a certain reason, & you make the same gesture, consent is implied
• if custom or social norms would lead a reasonable person to believe that the plaintiff had given consent
SPORTS: if the conduct is such that is within the normal practices of the game
Apparent Consent as a defense to intentional torts
in which a reasonable person would infer consent from the plaintiff’s conduct
Words, actions, or inactions may reasonably manifest consent
Silence may manifest consent when a reasonable person would have spoken up
Consent to Criminal Conduct as a defense to intentional torts
you cannot consent to a violation of criminal law EXCEPTION: "Where it is a crime to inflict a particular invasion of an interest of personality upon a particular class of persons, irrespective of their assent, and the policy of the law is primarily to protect the interests of such a class of persons from their inability to appreciate the consequences of such an invasion, and it is not solely to protect the interests of the public, the assent of such a person to such an invasion is not a consent thereto" • Protects classes if they cannot appreciate the consequences
Promoter Liability as a defense to intentional torts
Promoter is liable where he conducts something in violation of statutory provisions, regardless of the rights as between the contestants, and that the consent of the combatants does not relieve him of liability
General Rule of Extent of Damages for Intentional Torts
● You are liable for what results from the action, not just what is foreseeable
● Once you have the intent to commit, you are liable for any harm that flows directly from that tort, whether foreseeable or not
Negligence
CONDUCT, THROUGH ACT OR OMISSION, THAT FAILS TO CONFORM TO A PARTICULAR STANDARD OF CARE NECESSARY TO AVOID UNREASONABLE RISKS OF HARM TO OTHERS
Two Views on Duty
Cardozo: a duty is owed to the reasonably foreseeable plaintiff; must be close enough in time and space to owe a duty
Andrews: a duty to one is a duty to all; there is a duty to society as a whole; a duty to everyone
Exceptions to Duty
when conduct regularly or negligently created the situation and nothing was done to minimize the risk
gratuitous undertakings: either began to act on a promise or promised to act, and then they do it either negligently or through stopped performance
Exceptions to Good Samaritan Doctrine
§ 39: when the actor’s prior conduct, even if not negligent, creates a risk of harm
• Not liable for initial injuries when conduct was not negligent, just for injuries that result from not exercising reasonable care after non-negligent conduct
§ 327: cannot prevent others from providing aid
• Do not have to affirmatively help, but cannot prevent others from an act of misfeasance
§ 44: taking charge to assist another, despite no duty to do so; must exercise reasonable care
• Cannot worsen the situation for the person
4 different tests to determine when a risk is foreseeable/affirmative duty is owed
o Specific Harm- only liable if aware of specific imminent harm
o Prior Similar Incidence- notice of repeated criminal assaults on the same premises; foreseeability is established by incidents on or near the premises
o Totality of Circumstances Test- most commonly used test; takes nature, condition, location of land, and other relevant circumstances into consideration
o Balancing Test- balance foreseeability of harm against the burden of imposing a duty to protect against the criminal act; foreseeability used as a synonym to probability; similar to the hand formula (used in breach)
Owners and Occupiers: two ways a duty can arise
Active conduct and passive conditions on the premises
Invitees
a business visitor who is invited or permitted to enter or remain on the land for a purpose directly or indirectly connected with business dealings between them; if owner and occupier have a joint interest
• By invitation, express or implied, of the occupier
• Inducement/encouragement to use by the public makes them invitees even without explicitly saying to come
• Owed the Highest Level of Duty
o Occupier has a duty to take reasonable care that premises are safe and not cause unreasonable risk of harm to others; including reasonable inspections to find defects (there has to be sufficient time for the owner to make the premises reasonably safe), and to warn the invitee of any non-open and obvious defects (or making the defects reasonably safe if the warning would not be sufficient)
Licensees
a social guest who is not an invitee, but who is privileged to enter or remain upon land by the possessor’s consent; someone invited to enter/remain on land for a purpose, or under a legal privilege
• With the leave and license, express or implied, of the occupier
• Silence implies consent OR if a reasonable person would think that failure of the homeowner to say anything is his consent
• Owed a Less Stringent Level of Duty
o Occupier has no duty to ensure that premises are safe, but is bound to not create traps or injure a licensee by negligent conduct
o There is a duty to warn a licensee of latent concealed dangerous conditions that the owner knows of or should know about and possibly a duty to remedy it
Trespassers
someone who enters or remains on the land of another without consent of the owner or without privilege to do so; come onto the premises at their own risk
• If you are originally barred from land by signs you are a trespasser, but no further actions taken against you make you a licensee (as long as the landowner knows you have been habitually trespassing)
• No Duty of Reasonable Care Owed
o Only duty owed is to refrain from acting intentionally or recklessly to harm the trespasser; the trespasser comes onto the premise at his own risk
o Definition of Reckless: actor knows of facts that would lead a reasonable person to find that risk is substantially greater
A person acts recklessly in engaging in conduct if the person knows of the risk of harm created by the conduct or knows of facts that make the risk obvious to another in the person’s situation AND the precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk.
When an occupier is liable:
o Where the injury is due to some willful act involving something more than the absence of reasonable care
There must be some act done with the deliberate intention of doing harm to the trespasser, or at least some act done with reckless disregard of the presence of the trespasser
Exceptions on duty owed by owners and occupiers
Recklessness
Attractive Nuisance
Discovered/Known Trespasser
Frequent Trespassers on Limited Area
Recklessness by a Trespasser
If the trespasser’s presence is actually known then there is a duty not to injure by using reasonable conduct
Attractive Nuisance
there is a duty to eliminate danger or otherwise protect children when there are highly dangerous, artificial things on the land because children are too immature to appreciate the dangers
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
Excludes: risks that are obvious to children; known to be dangerous
Discovered/Known Trespassers
if the owner is aware of the trespasser, the owner has a duty to not injure the trespasser by negligent conduct or to warn the trespasser of non-obvious artificial conditions
Frequent Trespassers on Limited Areas
if the owner is aware that trespassers frequently come on the land in large numbers in a limited area, they are owed a reasonable duty of care; a duty arises not to injure the trespasser by negligent conduct and to warn the trespasser of non-obvious conditions.
Negligent Infliction of Emotional Distress
there is generally no duty owed to avoid the negligent infliction of emotional distress (fright or physical injuries resulting from fright) to another. A duty may arise under the certain circumstances
Circumstances that create a duty for negligent infliction of emotional distress
Impact Rule 1 and 2
Zone of Danger
Dillon Test
Impact Rule 1
immediate physical personal injury that results from fright following physical contact (along with injuries that result from that fright)
Can recover damages and parasitic damages
How you can recover:
Physical Contact —> Immediate Physical Injury —> fright from anticipating contact, emotional distress from fright/injury, or physical injury from emotional distress
Impact Rule 2
immediate physical personal injury that results from fright following physical contact, BUT contact that results in fright does not have to be that extreme
Contact can be very slight (ex. slight jolt in a minor crash, mouse hair in a spoonful of soup that touched the roof of P’s mouth)
Zone of Danger
you have to personally potentially be in danger of being struck; fright for yourself and your own personal safety
Dillon Test
a bystander can now recover if the injury was foreseeable
The main determinant if a duty is owed: foreseeability
3 factors to determine whether there was a foreseeable risk to this particular bystander (factors balanced by the court and determined as a matter of law):
• Bystander was located near the scene of the accident
• Bystander suffered shock soon after as a result from the direct emotional impact from observing the accident
o restatement 3d says hearing about the accident and coming on the scene right away/right after should be okay as well
• Bystander was closely related to the victim
Problem with the Foreseeability Test: open-endedness to the factors
P’s cause of action is based on an actual physical injury by the original victim
• The ALMOST accident does not count, OR
• If the victim is seen as contributorily negligent then there would be no cause of action
Thing Case Alternative: Bright-Line Rule: Restricts categories of who can recover and where they need to be BUT also requires severe emotional distress (not physical injury)
• Turns the factors into elements
Breach Rule
CONDUCT, BY ACT OR OMISSION, THAT FALLS BELOW THE RELEVANT STANDARD OF CARE NECESSARY TO AVOID UNREASONABLE RISKS OF HARM
Elements of Breach
o Standard of Care
o Foreseeability of Risk
o Unreasonableness of Risk
Hand Formula
Breach Standard of Care
o Reasonable Prudent Person- the general standard of care is the kind and degree of care that a reasonable prudent person would use under the same or similar circumstances to prevent foreseeable risk of harm
Hypothetical person with average mental capacity, abilities, intelligence, perception, memory under similar circumstances
Breach Standard of Care Special Rules
Children Physically Disabled Insanity Expert/Specialized Knowledge Beginner Elderly Custom Medical Malpractice
