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Torts final Flashcards

1
Q

What is the general rule for Duty in negligence

A

Reasonable person under circumstances. D must have owed legal duty of care.

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2
Q

What is the mythical reasonable person?

A

(a) recognizes risks (foresees harm); and (b) takes precautions to minimize them.

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3
Q

Does the standard of care change with cases?

A

No, only the degree

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4
Q

What is the degree of care special danger?

A

The standard of care is always reasonable care. However, the greater the danger, the greater the degree of care which must be exercised. (D must exercise a degree of care equivalent to the danger)

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5
Q

Degree of care for emergency?

A

Under the emergency doctrine, the duty remains the reasonable person under the circumstances, but the emergency is a circumstance that may lower the degree of care. Whether D is negligent will depend on whether a reasonable person would have acted like D did under a similar emergency.

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6
Q

Degree of care for physical limitations?

A

A person laboring under a physical disability is required to exercise ordinary care to protect himself from injury. Ordinary care in the case of such a person is such care as an ordinary prudent person with a like disability would have exercised under the same or similar circumstances.

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7
Q

Degree of care for infancy?

A

A child’s conduct is measured by the reasonable careful child of the same age, intelligent, maturity, training and experience under the same circumstances. Not the same as an adult.

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8
Q

What are the exceptions to the degree of care for child?

A

A child engaged in “inherently dangerous” activities like operation “powerful mechanized vehicles” is held to the reasonable adult standard

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9
Q

Degree of care for superior knowledge?

A

The standard of care to which a person with superior knowledge and experience should be held is reasonable care under the circumstances and that his superior knowledge and experience is a circumstance to be considered. An actor with superior knowledge and experience must use care which is reasonable in light of his or her superior qualities. The actor must take that superior quality into account and maybe be more careful when involved in certain activities.

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10
Q

Degree of care for mental disability?

A

The standard of care to which a person with a mental disability should be held is that -For policy reasons, a mentally disabled person is held to the same standard as one without the disability, “reasonable care under the circumstances”

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11
Q

What are the exceptions for mental disability?

A

When there is a sudden onset of disability

When the policy reasons are inapplicable

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12
Q

What i the rule/test for negligence per se?

A

1) P is within the class the statute intends to protect (2) D’s harm is the kind the statute seeks to prevent. Proven Duty and Breach.

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13
Q

What are the elements for negligence per se? (4)

A

(1) the statute or regulation must clearly define the required standard of conduct; (2) the statute or regulation must have been intended to prevent the type of harm the defendant’s act or omission caused; (3) the plaintiff must be a member of the class of persons the statute or regulation was designed to protect; (4) the violation was the proximate cause of the injury.

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14
Q

What does negligence per se prove?

A

Proves negligence (duty/breach); must still prove causation and damages

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15
Q

What are the 5 excuses for negligence per se?

A

A.The violation is reasonable because of the actor’s incapacity
B.actor neither knows nor should know of the occasion for compliance
C.actor is unable after reasonable diligence or care to comply
D.actor is confronted by an emergency not due to his own misconduct
E.compliance would involve a greater risk of harm to the actor or to others

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16
Q

What is the duty for common carriers?

A

common carriers owe passengers a duty of the “highest care” or some other “extraordinary care” for the passenger’s personal safety.

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17
Q

Where does the duty of common carriers stop?

A

ensuring the passengers safety and personal property

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18
Q

What are examples of places with common shares duty?

A

Railroads, ships, airlines, taxis, passenger cruise ships, and most of the time elevators

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19
Q

are ride sharers part of common carrier?

A

no, not in Illinois

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20
Q

What is the duty to host drivers?

A

guest statutes imposed a decreased duty of host-drivers to passengers. No liability for ordinary negligence, only for willful, wanton, reckless or grossly negligent conduct.
-Most states, drivers owe a duty of reasonable care to passengers – but to trespassers, only a duty to refrain from willful and wanton, or reckless conduct.

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21
Q

What is the duty to landowners?

A

the duty of landowners to persons who enter upon their land is based on the status of the entrant. Landowner’s duty to trespassers is only to protect against intentional. Wanton or reckless injury.

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22
Q

True or false: No liability for simple negligence unless the trespasser falls within the footpath or discovered trespasser exceptions.

A

True

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23
Q

Who is invitee?

A

is a business visitor or entrant for the benefit of possessor of the property. Express or implied.
Restaurant patrons, customers in mall, train passengers.

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24
Q

What is the duty for child trespassers?

A

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition (manmade, not natural things like cliffs) upon land if:

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25
What are the elements for duty of care to child trespassers?
1. trespass by children is foreseeable 2. D knows or should’ve known of risk to children 3. Child, because of her age could not understand the danger 4. Unreasonable not to protect against risk (cost of protecting against the risk is low compared to cost of the harm)
26
What is a licensee?
Someone who enters w/ consent of owner. | o Social guest, door-to-door salespersons, solicitors, neighbor
27
What is a duty to a licensee?
only to refrain from willful, wanton or reckless conduct
28
True or false: No duty for latent (obvious) dangers like natural accumulation of ice and snow, and diving onto shallow end of swimming pool
True
29
True or false: But liability if D removes snow/ice negligently in Illinois, no liability unless the removal was willful or wanton.
True
30
Is open and obvious Hazards a question for the jury?
Yes
31
What is the duty to open and obvious hazards?
No duty to protect those on the land for injuries caused by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
32
In Illinois, are children aware of fire, water, and height?
Yes
33
What is the duty for official entrants?
In most states, officals entrants cannot recover for injuries from foreseeable dangers of their profession.
34
What is the policy reason for official entrants (firefighter rule)
its the purpose of their job
35
What is the duty for lessors?
Reasonable care towards their tenants
36
What is the duty for Physicians established by?
established by what is the accepted practice of relevant medical community.
37
Does P need to use medical expert testimony?
Most of the time, unless its gross negligence, use treaties, and drug instructions
38
What about specialists?
held in same specialty at a national level
39
In med mal cases can the jury decide the reasonability of what is the accepted practice of the medical community?
no
40
What about non-medical practitioners?
reasonable practitioner under the circumstances
41
What about religious healers?
use actual medical community
42
What is the majority view of duty to disclose?
 The scope of doctors duty to disclose is measured by what the accepted practice of the relevant medical community is regarding what should be disclosed. Means that plaintiff must establish this standard by expert medical evidence.
43
What is the rule for Hospitals?
- employers are liable for the negligent acts of their employees if the act that caused harm was within the scope of employment. - Employer liable for employee’s intentional torts only if the tortious conduct is a foreseeable consequence of the employee’s work.
44
Employer is vicariously liable for the negligent acts of an independent contractor even if the contractor is acting within the scope of the contract unless:
(1) The act of the independent contractor was a non-delegable duty (providing safe premises) (2) Independent contractor was doing work involving a special danger to others (working with hazardous material) in which case employer is subject to liability for harm cause by the contractor’s failure to take reasonable precautions against the danger; or (3) If there was apparent agency
45
Liable for negligence must prove/show?
o Providing and maintaining safe and adequate facilities and equipment o Supervising medical care (Tricky) o The selection of its medical staff (Tricky) o Formulation, adopting, and enforcing adequate procedures that govern its medical staff and nonphysicians personnel to ensure quality care for the patients
46
Duty for nurses?
reasonable nurse - need expert testimony
47
Duty for pharmacists?
no duty to warn of side effects, that physician has prescribed excessive dosage, or that drug is contra-indicated, even if patient may be seriously injured if prescription is filled.
48
Duty for other professionals
Reasonable professional: need expert testimony – unless common knowledge exception – gross negligence – life a lawyer missing the SOL.
49
Duty of Educators?
Very difficult to sure for educational malpractice
50
Duty of Churches and clegy?
No vicarious for clergy misconduct because sexual abuse is not within the scope of employment. But can sue for church’s negligence on dealing w/ known abuser.
51
Informed Consent/Duty to disclose?
a duty to divulge to a competent adult patient sufficient information (that the Dr. knew or should’ve known) to enable the patient to make an informed judgment whether to consent to a medical procedure. Failure to do so constitutes malpractice
52
Risk about the duty to disclose?
A patient must be apprized not only of the “risks inherent in the procedure prescribed but also the risks of a decision not to undergo the treatment, and the probability of a successful outcome of the treatment.”
53
True or false: There is no general obligation to assist those in peril unless the person created the danger or the two people had a special relationship that society recognizes as sufficient to create the duty.
True
54
What is misfeasance?
An act that carries with it a potential duty and resulting legal accountability for the act.
55
What is nonmisfeasance>
An omission of failure to act that can give rise to liability only in the presence of some external circumstances, like special relationships.
56
What is the exception to no duty to act?
When a person voluntarily undertakes to case for an injuried person, they must render that aid with reasonable care.
57
What is the good samaritan as a defense?
They provide immunity to doctors who render care to someone in need who otherwise would not be able to receive care at the time. I.e. someone given birth on the side of the road and Dr. happens to drive by and see.
58
What is the duty for interspousal?
Now abolished in most states (expect in claims of intentional tort of emotional harm between spouses.
59
What is the duty for parental
Parental immunity for negligence eliminated
60
What is the exception for parental duty / negligence?
a. Where the negligent act involves an exercise of parental authority over the child b. Where the negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care. i. There is immunity for parental authority ii. Immunity for parental discretion regarding food, clothing, housing, medical and dental services, and other care.
61
Duty to assist?
A. There is no general obligation to assist those in peril unless the person created the danger or the two people had a special relationship that society recognizes as sufficient to create the duty.
62
What are the exceptions to duty to assist?
Acts causing risk or harm trigger duty, beginning an act as established a duty, special relationships with the victim.
63
What is the breach of duty general rule?
Conduct which is unreasonable under the circumstances
64
By common knowledge of layperson:
when a person is subjectively aware of possible risks related to a particular conduct. If the applicable duty falls within the realm of common knowledge and everyday experience, P does not need expert testimony to establish duty and breach.
65
What is the risk v utility test?
Probability of harm (P), Gravity (cost) of the harm, and burden (cost) of preventing the harm. B < PL. Balancing probability and gravity of risk against the utility of the actor’s conduct. A common approach to determine whether D’s conduct breached his or her duty.
66
Do you use expert witness with using customs for proving breach of duty?
yes
67
True or false: company rules are generally relevant, and therefore admissible, but not conclusive on the question of the standard of care. When evidence of custom may be evidence that the jury may weigh, it is not determinative of the issue of negligence. One may be in compliance with custom and still be found negligent.
True
68
What is Res Ipsa Loquitur?
When you cant prove D was negligent when we can’t really tell what happened so that we can’t isolate D’s specific conduct.
69
What are the three elements of Res Ipsa Loquitior
(1) Event is of kind which ordinarily does not occur in the absence of negligence (2) Other possible causes, including P’s conduct, are eliminated be the evidence; and (3) the indicated negligence was within the scope of D’s duty to the P.]
70
How to determine whether P can use Res Ipsa?
The judge first determines as a matter of law whether P has made a sufficient showing on each element of RIL. If no such showing is made, the res ipsa instruction is not given and the judge may direct a verdict for the D
71
What are the tests for actual causal connection?
But-for test, substantial & material factor test, joint & several liability test.
72
What is the "But-for" test
used primarily when there is only one cause of P’s injury | -P can prove cause in fact if she can show that “But for” D’s negligence, P would not have been injured.
73
What is the substantial and material factor test?
Each Ds is a cause in fact of the Ps injury if the D’s negligence was a substantial and material factor in causing the plaintiff’s injury. Where the tortious acts of two or more wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed against any one separately or against all in one suit.
74
What is the joint and several liability test
- if the Ds acted in concept to produce P’s injuries | - if the Ds acted independently and the injury is indivisible.
75
What are the types of compensatory damages?
Causing the loss of causal evidence or certainty, proportionate damages, reduced value damages, and lost chance recovery?
76
What is the most common damages?
Proportionate damages
77
What is causing the loss of casual evidence or certainty?
There is one special type of situation where the usual rule that burden of proof as to cause in fact is on the plaintiff has been somewhat relaxed. in these causes, where either D could have caused the harm but only one actually did, courts shift the burden of proof to defendants to exonerate themselves or they are both liable.
78
What are proportionate damages?
- P recovers all or a potion of damages based on D’s fault | - Determined by jury’s apportionment of fault
79
What is reduced value damages?
If P is about to die or be seriously injured by other causes, Q is whether the injury caused by D’s negligence caused the loss of the P’s while life, or just the loss of some time
80
What is the loss chance of recovery?
a. Allows a Π, whose preexisting injury or illness is aggravated by the alleged negligence of a physician or health care worker, to recover for her lost opportunity to obtain a better degree of recovery. i. % of damages = % of loss measured by value of one’s life. ii. All or none: if Π cannot prove that it is more probable than not (51%) that absent of negligence, Π would not have survived, Π gets nothing.
81
True or False: Punitive damages are not rare.
False, they are rare.
82
What is the foreseeable risk rule?
When a reasonable person would have anticipated the risk. When deciding whether an actor was the proximate cause of the P’s injuries, the jury will determine whether, at time of the actor’s actions: A reasonable person with the actor’s own experience and in circumstances similar to the actor, would have anticipated that his or her conduct could cause injury, unless certain precautions are taken.
83
What is the liability limited to type of injury within scope of risk?
* A D’s negligence is the proximate cause of the P’s injury if the injury was within the foreseeable consequences of the D’s negligence. * That a D is only liable for the injuries that are the type of injuries within the scope of the risk created by D’s negligent act.
84
What is liability limited to persons within the scope of risk
D is liable only when its negligence causes foreseeable harm to foreseeable plaintiff’s.
85
What is the rescue doctrine?
D is liable only when its negligence causes foreseeable harm to foreseeable plaintiff’s.
86
What is the scope of the risk versus manner of the risk?
D is liable for all the foreseeable consequences of the negligent act, even if they happen in an unforeseeable manner and to an unforeseeable extent.
87
What is the kind of harm (kind of Risk)?
A D is not liable for a kind (or type) of harm different than the harm foreseeable from D’s negligence.
88
What is the kind of harm versus extent of harm?
D is liable if harm was foreseeable even if the extent of the harm was not foreseeable. (This is sometimes referred to as the Thin Skill rule or as D taking the P as she finds him.)
89
What is the intentional intervening acts?
A superseding cause that cuts-off D’s liability UNLESS the intervening intentional act was within the foreseeable risks created by D’s negligence.
90
Is Suicide an intentional intervening act?
in most jurisdictions, suicide attempts are an intervening cause that will cut off D’s liability.
91
What is negligent intervening act?
A superseding cause that cuts-off D’s liability ONLY IF intervening act was not within foreseeable risks created by D’s negligence.
92
Is alcohol to minors negligent intervening acts?
Alcohol to minors in more jurisdictions, there is not duty to not serve alcohol to minors in private residences.
93
What is intervening act of nature?
Superseding cause the cuts-off D’s liability if the intervening act was not within the foreseeable risks created by D’s original negligence -When an intervening act of nature foreseeable depends on circumstances, such as where and the time of year when the case takes place.
94
What does tolling the statute mean?
to suspend or temporarily stop the running of the SOL usually because of legal incapacity to sue. SOL begins to run at some point other than when the injury occurs – when the incapacity is removed.
95
What is tolling the statute in medical malpractice?
: 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action.
96
What is tolling the statute in latent injuries?
SOL begins to run when a reasonable person associates her symptoms with a serious or permanent condition and perceives the role the defendant has played in causing the condition.
97
What is the tolling the statute for repressed memory/insanity disability grace?
The discovery rule does not apply to toll the SOL here because repressing a memory and forgetting it are indistinguishable scientifically and legally. Most jurisdictions do not allow tolling due to repressed memory of sexual abuse, concluding that, without more, a diagnosis of psychosis, like Multiple Personality Disorder, is not a disability that triggers tolling. Illinois is 20 years.
98
What is the statute of repose?
: Legislative provisions that completely extinguish a claim, even if not discovered until after the running of the SOR.
99
Is contributory negligence a defense based on plaintiff conduct?
Yes
100
What is the traditional approach for contributory negligence?
P’s faulty conduct, not matter how slight, bars all recovery. D has not duty to prevent risks that a P could reasonably avoid.
101
What is reduce recovery for contributory negligence?
Comparative Negligence: contributory fault is a defense that reduces P’s damage based on the degree to which the P’s own faulty conduct contributed to causing her injury.
102
What is pure comparative negligence?
focus shifts from liability to damages. P recovers whatever % of fault is attributed to D’s. Jury determines the cost of the damages.
103
What is modified comparative negligence?
Illinois & Wisconsin: P can recover if P’s fault is 50% or less. Kansas: Only if P is less then 50%.
104
True or false? D has a Special Duty to Protect Plaintiff Against Plaintiff’s Own Fauly Conduct: Comparative negligence defense will not be allowed to a D whose duty included preventing the very act that caused the P’s injury
True
105
True or false? D not Permitted to Assert Contributory Negligence because Plaintiff Found to Have No Duty to Protect herself from Defendants Conduct: For policy reasons, contributory fault may not be assessed against a 13-year-old child based on the failure to protect herself from being sexually abused when Ds stand in a special relationship to the child and have a duty to protect the child. For policy reasons (rather than strict legal principle), a plaintiff is entitled not only to assume reasonably care by the defendants but also to take some risks that rely on that assumption.
true
106
Rescue Doctrine vs. Comparative Negligence majority view
D can raise P’s negligence to reduce P’s recovery
107
What is the assumption of risk?
grounded of P’s consent which need not be faulty, or risky, or unreasonable. This is based on the idea that a person is free to agree (consent) to assume risks created by someone else’s negligence.
108
What are the factors are express assumption of risk?
D’s duty to the public, nature of services performed, fairness in contract negotiations, and clear & unambiguous exculpatory language.
109
What is express assumption of risk
a. There is no general policy against voluntary assuming the risk which the law places on another
110
true or false: b. However, as a matter of public policy, when one is compelled to assume a risk to obtain essential medical treatment, the assumption is not voluntary and, therefore, the release is invalid.
true
111
True or false: If danger can be eliminated or mitigated through the exercise of reasonable care, it is not a necessary danger and is therefore not an inherent risk of the sport
true
112
What is implied assumption of risk?
a. Assumption of risk is not a complete bar of recovery in a negligence claim unless D’s conduct amounts to
113
True or false: Most jurisdictions: no distinction between contributory negligence and (secondary) assumption of risk when raised as a defense to an established breach of duty. In other words, (secondary) assumption of risk, because it is a type of contributory negligence, merged into the system of comparative negligence, thus, allowing the comparison of fault
True

Torts (1 decks)

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