Torts Final

Question 1

Duty definition

Answer 1

A duty is defined as an obligation to which the law will give recognition, and effect, to conform to a particular standard of conduct toward another. The care required is always reasonable care. The standard never varies, but the care which is reasonable must be reasonable in the same circumstances (reasonable & prudent standard

Question 2

Breach of duty

Answer 2

Breach of Duty: When the actor fails to conform to the applicable standard of care; reasonable-person standard. Breach generally requires
(1) the actor could have pursued an alternative, reasonable course of conduct that
(2) more likely than not would have prevented or mitigated the injury.

Question 3

An actor can be negligent only

Answer 3

if his conduct created a foreseeable risk and the actor recognized, or a reasonable person would have recognized, that risk.

Question 4

The risks are that a reasonable and prudent person

Answer 4

wouldn’t NOT take because such a person would foresee the harm that might result- that is, would recognize the risk and regard it as too dangerous

Question 5

Link Individual to duty

Answer 5

In general, when an actor’s conduct, creates, maintains, or continues a risk of physical harm, he ordinarily has a duty of care

Question 6

Open and Obvious DANGER

Answer 6

Both (1) the condition itself, and (2) the risk it poses, must be apparent to a reasonable person for a hazard to be “open and obvious.”

Question 7

Negligence Per Se

Answer 7

Negligence Per Se: In order to replace the common law duty of care for negligence by means of statute or regulation these elements must be met:
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 must have been the proximate cause of the injury

Question 8

Scope of Risk Principle

Answer 8

Defendant is subject to liability for all harm he causes within the scope of the risks he negligently created.

If a reasonable person would have recognized (“foreseen”) a risk of harm and would have sought to avoid it, then the defendant who fails to do so is negligent.

Question 9

MANNER OF OCCURRENCE AND EXTENT OF HARM

Answer 9

A harm or risk of the general kind that would have been foreseeable to a reasonable person is within the scope of the risk even though neither the exact harm nor its extent, nor the exact manner of its occurrence was or could have been foreseen.

Question 10

Always foreseeable:

Answer 10

Egg-shell skulls
Harm negligently caused by rescuers and medical personnel
Harm to rescuers
(Usually) harm while recovering from injury

Question 11

Harm caused by torts and crimes of others

Answer 11

may be foreseeable.

Question 12

Palsgraf Proximate Cause

Answer 12

When we consider the “risks” we look not just to the TYPE OF HARM associated with the negligence.

We also consider who is a
FORESEEABLE PLAINTIFF.

When we consider the “risks” we look not just to the TYPE OF HARM associated with the negligence. We also consider who is a FORESEEABLE PLAINTIFF.

Question 13

Actual Harm

Answer 13

Harm can be broken down into three basic categories:
`1. Physical harm, 2. Emotional harm, and 3. Economic harm.

Harm, in a negligence lawsuit, serves two functions:
(1) To meet the harm element of a prima facie case for negligence (we’ll call this “prima facie harm”),
(2) To give the plaintiff a basis upon which to recover money from the defendant (we’ll call this “recoverable damages”).

Question 14

FACTUAL CAUSE

Answer 14

The plaintiff must prove, not only that plaintiff suffered legally cognizable harm, but that the harm was in fact caused by the defendant.

Question 15

Primary Assumption of Risk

Answer 15

the court assumes that you fully comprehend the risks of participating in an activity because those risks are perfectly obvious to any reasonable individual.

Examples: athlete in contact sport injured during a tackle.

Can be a complete bar to recovery.

Question 16

Express Assumption of Risk

Answer 16

How to determine if an exculpatory clause is enforceable:
1. Is it clear and unambiguous?
2. Is there a statute that renders the clause unenforceable?
3. Is it contrary to public policy?

Can be a complete bar to recovery.

Question 17

Exculpatory Clause

Answer 17

agreement to relieve the Δ of liability for Δ’s neg—essentially gets rid of duty

Question 18

Implied Assumption of Risk

Answer 18

Elements:
Actual knowledge of particular risk
Appreciation of magnitude of risk
Voluntary encounter of risk

Question 19

Tunkl Factors

Answer 19

It concerns a business of a type generally thought suitable for public regulation.

Party seeking exculpation is engaged in performing a service of great importance to the public.

Party holds himself out as willing to perform this service for any member of the public who seeks it.

As a result of the essential nature of the service party invoking exculpation possesses a decisive advantage of bargaining strength.

Party confronts public with standardized adhesion contract of exculpation and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence.

As a result of the transaction, person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents.

Question 20

Express Assumption of Risk
Clarity

Answer 20

Exculpatory contracts must meet “higher standards for clarity than other agreements.”

Question 21

Express Assumption of Risk
and Policy Considerations

Answer 21

Because of policy reasoning, it can render the express assumption risk void

Question 22

A harm or risk is not within the scope of the risks negligently created by the defendant in any of the following circumstances:

Answer 22

If a reasonable person in similar circumstances would not have foreseen harm or risk of the same general type.

If a reasonable person should have foreseen the general type of harm but would not have taken greater precautions to avoid it than the defendant took (a case of no negligence or breach of duty).

If reasonable person would not have foreseen harm of the same general type to a general class of persons that includes the plaintiff.

Question 23

Negligence Per Se Excuses

Answer 23

if the violation is reasonable in light of the actor’s childhood, physical disability, or physical incapacitation;

the actor exercises reasonable care in attempting to comply with the statute;

the actor neither knows nor should know of the factual circumstances that render the statute applicable;

the actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public; or

the actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than would noncompliance

Question 24

Exclusive control

Answer 24

(alternative) If the jury could reasonably decide that the defendant had enough control to suggest they were more likely responsible for the incident than anyone else—even without complete control over the situation—the trial court must let the jury consider that possibility.