Torts Final

Question 1

General Duty Principle (duty)

Answer 1

An actor owes a duty of reasonable care under the circumstances to those persons who are foreseeably exposed to physical risks arising from the actor’s conduct.

Question 2

Owners and Occupiers of land (duty)

Answer 2

Owners and occupiers of land have a duty to protect persons on their premises from dangerous/unsafe conditions that the landowner or occupier either caused, knew about, or should have known about.

Question 3

To Assist a rescue (duty)

Answer 3

A duty of reasonable care is created when a person gratuitously volunteers and affirmatively act, or has a special relationship with the imperiled person

Question 4

To Take Protective Measures Against Risks Posed by Third Persons (duty)

Answer 4

A general duty of care to protect persons on their premises from dangerous acts by a third persons. The scope of that duty depends on past experiences and the likelihood of dangerous acts third persons

Question 5

To Protect Against Criminal Conduct (duty)

Answer 5

In certain types of relationships, the common law imposes a duty on one party to take reasonable affirmative measures, such as security precautions, to protect the other party from foreseeable criminal activity

• There is a duty to prevent but not protect in NYC

Four tests for criminal conduct
(1) Specific-Harm Test
(2) Prior-Similar-Incidents Test
(3) Balancing Test
(4) Totality-of-the-circumstance Test

Question 6

Violation of Public Duties (duty)

Answer 6

A municipality may not be held liable for injuries caused by a failure to provide protection. Unless there was a special relationship between the municipality and the injured party.

Establishing a Special Relationship
(1) Assumption of affirmative duty
(2) Knowledge that inaction could lead to harm
(3) Direct contact with the injured party
(4) Injured party’s justifiable reliance

Question 7

Emotional Distress/Duties towards Bystander (duty)

Answer 7

“In New York a bystander who was not injured but who suffered emotional distress due to witnessing another person’s injury if…
(1) D’s negligence had to have caused the victim’s injury (universal requirement)
(2) Bystander was in the zone of danger (could have been injured by D’s negligent conduct)
(3) Bystander is an immediate family member of the victim (spouse, sibling, child, grandparent)
(4) Bystander suffered a serious emotional reaction beyond that of a disinterested person
(5) Injury to the victim must also be serious

Question 8

Emotional Distress/Duties towards someone in the zone of danger (duty)

Answer 8

P can recover negligent infliction of emotional distress if…. P was in the Zone of Danger; and P has emotional distress with physical symptoms (shock, nightmares, ulcers, etc.) or some state

Question 9

Duty to Protect Against Fear of Future Disease (duty)

Answer 9

To maintain a claim for emotional distress based on fear of contracting, a disease, a plaintiff must
prove actual exposure to the serious or fatal disease, the fear must be reasonable

Question 10

Pure Economic Loss (duty)

Answer 10

A defendant owes a duty of care to take reasonable measures to avoid the risk of causing economic damages, aside from physical injury, to particular plaintiffs comprising an identifiable class with respect to whom defendant knows or has reason to know are likely to suffer such damages from its conduct.

Question 11

Public nuisance (duty)

Answer 11

generally, no recovery for pure economic loss without direct physical impact unless a party can show that they have an injury/harm different than the general public

Question 12

Reasonable Standard of care (breach)

Answer 12

The reasonable standard of care is what a reasonably prudent person would do in the same or similar circumstances

Question 13

Child Standard of Care (breach)

Answer 13

The child standard of care is what a reasonably prudent child of that age would do in the same or similar circumstances. There is an exception when minors are to be held to an adult standard of care when they willfully engage in an activity inherently dangerous and known for adult use

Question 14

Statutory Standards (breach)

Answer 14

If a statute is relevant, the plaintiff uses it instead of the standard care to establish negligence per se, if;
(1) The Plaintiff is in the class of people meant to be protected by the statute
(2) The Injuries that occurred were what the statute was created to prevent

Question 15

Medical Standard (Breach)

Answer 15

A physician must act with the degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the average member of the profession practicing in the field in the relevant geographic community. P will need expert testimony from a medical expert who can testify as to what the medical profession would ordinarily expect a doctor to consider and do under similar circumstances.

Question 16

Legal Standard (Breach)

Answer 16

A lawyer must act with the degree of knowledge, skill, and ability that is ordinarily possessed and exercised in similar situations by the average member of the profession practicing in the field in the relevant geographic community. P will need expert testimony from a legal expert who can testify as to what the legal profession would ordinarily expect a doctor to consider and do under similar circumstances.

Question 17

Doctrine Of Res Ipsa Loquitur (Breach)

Answer 17

Latin for “the thing speaks for itself”

A Plaintiff may rely on RIL to establish the defendant’s negligence where (1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.

Theory:
The defendant, was negligent in that XYZ it was this negligent conduct that caused him to sustain injuries.

Question 18

Sudden-emergency Doctrine (Breach)

Answer 18

The sudden-emergency standard is applied under negligence if D’s conduct was an immediate and unexpected responsive action.

Question 19

Physically Ill Person Doctrine (Breach)

Answer 19

A person who suffers from a sudden unforeseeable physical illness isn’t liable for injuries caused by the illness.

Question 20

Mentally Ill Person (Breach)

Answer 20

A mentally disabled person is subject to the same standard of care as a sane person

Question 21

The Respondent Superior Doctrine (Breach)

Answer 21

This states that employers are Vicariously Liable for their employee’s negligent conduct.

Question 22

How to prove negligence/negligence application (Breach)

Answer 22

“What a reasonably prudent person would have done vs. what they did “
(1) Circumstantial Evidence
(2) Expert Testimony
(3) Industry Customs and Standards

Question 23

Causation

Answer 23

“But for” Test:
but for the negligent conduct of the defendant, the injury to the plaintiff would not have occurred.

+ The plaintiff can show that the but-for cause was the substantial factor in causing the P injury.

Question 24

Causation + Application

Answer 24

But for statement–>

Chain of Events (if the had not been neg, this wouldn’t have happened, then this would not have….. then they would not have been injured) –>

“There is a counterargument that there were other factors that contributed to the injury such as; XYZ. Even though this is true, the negligent conduct by the defendant was still a substantial factor in causing the injury as there is no other possible cause for the injury to occur, making it a but-for cause of the Injury”

Question 25

Proximate Cause

Answer 25

The type of injury sustained by the plaintiff must be among the risks that made the defendant’s original conduct negligence

Question 26

Proximate Cause + Application

Answer 26

“Plaintiff can present sufficient evidence to establish the conduct was the proximate cause of the injuries as it was a foreseeable risk.” –>

“There are many foreseeable risks that may arise when they are negligent, such as……It is fair to say that the injuries the plaintiff experienced were within the risk of negligent conduct” –>

“It could have been reasonably been foreseen or anticipated by a person of ordinary intelligent or prudence” + WHY is it reasonable for someone to assume this (fact specific, ie; many 10 foot tall balloons in NYC is risky)

Question 27

Expectations of the Foresight Test
(Proximate Cause)

Answer 27

(1) Medical malpractice complications rule:
(2) Eggshell plaintiff rule:
(3) Rescuer rule:

Question 28

Medical Malpractice Complications Rule - Expectations of the Foresight Test
(Proximate Cause)

Answer 28

Medical malpractice complications rule: The original tortfeasor is liable for any subsequent negligence or complications during medical treatment arising after the initial injury.

Question 29

Eggshell plaintiff rule - Expectations of the Foresight Test
(Proximate Cause)

Answer 29

Eggshell plaintiff rule: The defendant is liable for the entire injury even if the injury was enhanced because of the injured party’s peculiar susceptibility to injury.

This would work for physical and emotional past injuries.

Question 30

Rescuer rule - Expectations of the Foresight Test
(Proximate Cause)

Answer 30

Rescuer rule: A rescuer, injured while rescuing a person endangered by the defendant’s negligence, may sue the defendant for injuries the rescuer suffered during the rescue.

Question 31

Strict Liability + List some

Answer 31

A Type of Liability that does not require proof of fault as it only requires causation. They do not need to be negligent. (This is in lue of breach)

(1) Animals
(2) Product Liability
(3) Abnormally dangerous activities

Question 32

Wild animals- Strict Liability

Answer 32

Duty: “There is a absolute duty to those who keep wild animals to ensure to prevent harm to other”

Breach: “The defendant who has a wild animal if strictly liable for harm they caused even if they are kept as pets”

Question 33

Animals- Strict Liability

Answer 33

Duty: “There is a absolute duty to those who keep domestic animals to ensure to prevent harm to other”

Breach: “The defendant who has a domestic animal is strictly liable once they know or should have known of their animals dangerous disposition”

Question 34

Abnormally dangerous activities- Strict Liability

Answer 34

Duty: “The nature of these activities imposes an absolute duty with abnormally dangerous activities to make it safe”

Breach: “The defendant is strictly liable for the activity that creates a foreseeable and highly significant risk of physical harm even with reasonable care exercised and when the activity is not one of common usage”

Question 35

Defenses for strict liability

Answer 35

1. Statutory or public duty
2. Contributory negligence
3. Assumption of risk/Comparative fault
4. Voluntary Participation:
5. Trespasser:
6. Abnormally Dangerous Activities

Question 36

Defenses for strict liability Defenitions

Answer 36

1. Statutory or public duty: “If defendant engages in an abnormally dangerous activity, or if defendant keeps an animal pursuant to a public duty or statutory obligation, there can be no strict liability and plaintiff must proceed under a negligence theory”
2. Contributory negligence: “Contributory neg is not a defense to strict liability unless plaintiff knowing and unreasonably subjected himself to the risk from the abnormally dangerous activity or wild animal”
3. Assumption of risk/Comparative fault: “Assumption of risk is a defense to strict liability”
4. Voluntary Participation: “There can be no struct liability if plaintiff voluntarily participates in or near the abnormally dangerous activity, or interacts with or gets near the animal, for the purpose of obtaining some benefit for plaintiff”
5. Trespasser: “D is not strictly liable for harm done to trespassers if trespasser is doing so intentionally, unless the use of a wild or abnormally dangerous domestic animal amounts to an intentional tort”
6. Abnormally Dangerous Activities: “Ultra hazardous → abnormally dangerous”

Question 37

Product Liability

Answer 37

(1) Manufactures Defects
(2) Design Defects
(3) Warning Defects

Question 38

Manufactures Defects

Answer 38

Duty Issue: “Did the D owe the P a duty of reasonable care?”
Duty Rule: “The defendant was a seller of a product and the product arrived at the incident substantially unchanged.”

Defect Issue: “Can P establish a prime facie case of product liability against
Defect Rule: “Products of manufacturing defects are those that deviate from the manufacturer’s design specifications and create an unreasonable dangerous physical harm to user/bystander. Plaintiff can use the consumer expectation test to determine whether the product is more dangerous than ordinary consumer would expect”

Causation Application: The P can Show the causation by showing circumstantial evidence. (1) The Malfunction that ordinarily occurs is a result of a defect (2) eliminating other caused

Question 39

Design Defects

Answer 39

Duty Issue: “Does the defendant have a duty of reasonable care towards (plaintiff) ?
Duty Rule: “The defendant must be a seller of the product and the product arrived at the incident substantially unchanged from the time it left the manufacturer”

Defect Issue: “Can P establish a prima facie case of product liability against the D”
Defect Rule: “In determining whether a safer, feasible, cost-effective alternative design exists that does not impair the usefulness of the products, one can evaluate 1) the gravity of potential harm resulting from use of the product; (2) the likelihood that such harm would occur; (3) the feasibility of an alternative design; (4) the cost of an alternative design; and (5) the disadvantages of an alternative design, by using the risk-utility test”

Question 40

Warning Defects

Answer 40

Duty Issue: Does the defendant have a duty of reasonable care towards (plaintiff) ?
Duty Rule: The defendant must be a seller of the product and the product arrived at the incident substantially unchanged from the time it left the manufacturer

Issue: Can P establish a prima facie case of product liability against the D
Rule: A warning is inadequate if it does not reasonably alert the user of unknown dangers. To determine if a warning is inadequate, one can evaluate (1) the warning explicitness, (2) comprehensibility, (3) clarity, (4) conspicuousness, and (5) means to convey.

Question 41

Post Sale Warning Defects

Answer 41

Duty Issue: Does the defendant have a duty of care towards (plaintiff) ?

Duty Rule: a Manufactures is liable for failing to warm users of a defect discovered post sale, if a reasonably manufacturers in that position would, if:
(1) They knew or should have know the possible harm, (2) users can be identified and are unaware of the risk, (3) warning can be communicated and acted upon, AND (4) Risk outweighed the burden of warning

Question 42

Affirmative Defense

Answer 42

(1) Assumption of Risk
(2) Jointly and severally liability
(3) Comparative Fault

Question 43

Assumption of Risk - Affirmative Defense

Answer 43

Defendant will Argue “Under NY law, a participant in a recreational activity assumes the risks that are inherent in and arise out of the nature of the sport generally and flow from such participation.”

Plaintiff will Argue “There is a duty obtained for dangers conditions that are over and above the usual and inherent dangers in the sport”

Question 44

Jointly and Severally Liability- Affirmative Defense

Answer 44

Two independent tortfeasors may be held jointly liable if it is impossible to tell which one caused P’s injuries, and the burden of proof will shift to the D’s to either absolve themselves of liability or apportion the damages between them.

Question 45

Comparative Fault- Affirmative Defense

Answer 45

If the Plaintiff’s own conduct impacted the injury they should share the responsibility

Theory: “The Plaintiff was comparatively negligent in that he ….. which, along with the defendant’s conduct contributed to the injury”

Question 46

Defence Theory

Answer 46

The defendant will raise the defence fo XYZ, in that

Question 47

Negligent Entrustment (duty)

Answer 47

D is liable for negligently entrusting a 3rd party w/ a chattel if (1) D entrusted 3rd w/ chattel, (2) that D knew or should have known that it would create an unreasonable risk of harm, and (3) the harm occurred

Question 48

Affirmative duty to act on harm by thrid party (duty)

Answer 48

One has an affirmative duty to act when they learn about anothers intent to do harm to a third party and to take reasonable precautions given the circumstances to warn the potential victim of danger