Torts final Flashcards
What is the general rule for Duty in negligence
Reasonable person under circumstances. D must have owed legal duty of care.
What is the mythical reasonable person?
(a) recognizes risks (foresees harm); and (b) takes precautions to minimize them.
Does the standard of care change with cases?
No, only the degree
What is the degree of care special danger?
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)
Degree of care for emergency?
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.
Degree of care for physical limitations?
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.
Degree of care for infancy?
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.
What are the exceptions to the degree of care for child?
A child engaged in “inherently dangerous” activities like operation “powerful mechanized vehicles” is held to the reasonable adult standard
Degree of care for superior knowledge?
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.
Degree of care for mental disability?
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”
What are the exceptions for mental disability?
When there is a sudden onset of disability
When the policy reasons are inapplicable
What i the rule/test for negligence per se?
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.
What are the elements for negligence per se? (4)
(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.
What does negligence per se prove?
Proves negligence (duty/breach); must still prove causation and damages
What are the 5 excuses for negligence per se?
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
What is the duty for common carriers?
common carriers owe passengers a duty of the “highest care” or some other “extraordinary care” for the passenger’s personal safety.
Where does the duty of common carriers stop?
ensuring the passengers safety and personal property
What are examples of places with common shares duty?
Railroads, ships, airlines, taxis, passenger cruise ships, and most of the time elevators
are ride sharers part of common carrier?
no, not in Illinois
What is the duty to host drivers?
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.
What is the duty to landowners?
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.
True or false: No liability for simple negligence unless the trespasser falls within the footpath or discovered trespasser exceptions.
True
Who is invitee?
is a business visitor or entrant for the benefit of possessor of the property. Express or implied.
Restaurant patrons, customers in mall, train passengers.
What is the duty for child trespassers?
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:
What are the elements for duty of care to child trespassers?
- trespass by children is foreseeable
- D knows or should’ve known of risk to children
- Child, because of her age could not understand the danger
- Unreasonable not to protect against risk (cost of protecting against the risk is low compared to cost of the harm)
What is a licensee?
Someone who enters w/ consent of owner.
o Social guest, door-to-door salespersons, solicitors, neighbor
What is a duty to a licensee?
only to refrain from willful, wanton or reckless conduct
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
True or false: But liability if D removes snow/ice negligently in Illinois, no liability unless the removal was willful or wanton.
True
Is open and obvious Hazards a question for the jury?
Yes
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.
In Illinois, are children aware of fire, water, and height?
Yes
What is the duty for official entrants?
In most states, officals entrants cannot recover for injuries from foreseeable dangers of their profession.
What is the policy reason for official entrants (firefighter rule)
its the purpose of their job
What is the duty for lessors?
Reasonable care towards their tenants
What is the duty for Physicians established by?
established by what is the accepted practice of relevant medical community.
Does P need to use medical expert testimony?
Most of the time, unless its gross negligence, use treaties, and drug instructions
What about specialists?
held in same specialty at a national level
In med mal cases can the jury decide the reasonability of what is the accepted practice of the medical community?
no
What about non-medical practitioners?
reasonable practitioner under the circumstances
What about religious healers?
use actual medical community
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.
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.
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
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
