Torts Hot Topics Flashcards
To whom do you owe a duty of care?
Duties of care are only owed to foreseeable plaintiffs, including rescuers.
Do you owe a duty of care to rescuers?
Yes, rescuers are foreseable plaintiffs.
Firefighter Rule
Firefighters are barred from recovering for injuries that come from the inherent risks of the job
Reasonably Prudent Person Duty
All people have a duty to exercise the care that a reasonably prudent person would to avoid injuring foreseeable victims with their activity.
Should you consider mental or physical deficiencies when using a reasonably prudent person standard?
No, the RPP is an objective standard. If there’s a physical defect, you apply the RPP with that defect standard.
Children Standard of Care
Children’s duty of care is subjectively based on that child’s intelligence, experience, and age. Under 5 presumed to not be negligent.
Professional Standard of Care
Professionals are expected to have the same knowledge and exercise the skill of an average member of the profession
What standard is used for medical professionals?
You apply a national standard of care, not local
What are the 4 types of duty that a land possessor may owe?
Unknown trespasser
Known or anticipated trespasser
Licensee
Invitee
Duty of Care to Unknown Trespasser
There is no duty owed to an unknown trespasser
Duty to Known or Anticipated Trespassers
Land possessors have a duty to warn or make safe any conditions that are
1) artificial
2) highly dangerous (risk of death or serious bodily injury)
3) concealed
4) known to the possessor in advance
Duty to Licensees
Land possessor has a duty to warn or make safe hazardous conditions that are
1) concealed
2) known to the land possessor in advance
No duty to inspect or repair
Duty to Invitees
Invitees are persons invited on for the economic interest of the land possessor – think customers of businesses that hold themselves open to the public
Lose status if they exceed the scope of the invitation
Land possessor owes a duty to invitees regarding hazardous conditions that are
1) concealed
2) known to the land possessor in advance or could have been discovered by a reasonable inspection
Attractive Nuisance Doctrine
Landlord must exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by a dangerous artificial condition on their property
P must prove
1) owner knew or should have known about the condition
2) owner knows or should know that children might trespass on land
3) condition is likely to cause injury (children can’t comprehend danger)
4) expense of remedying situation slight compared with magnitude of risk
When may a statute provide a standard of care?
A criminal penalty may replace a common law general duty of care when
1) the plaintiff is within the class that the statute was meant to protect AND
2) the harm was the type of harm the statute was meant to prevent
What are the excuses that can be raised to statutory standards of care?
An excuse to a statutory duty of care may be raised if
1) the compliance would cause more danger than the violation of the duty OR
2) compliance was outside the control of the defendant
3 Types of Negligent Infliction of Emotional Distress
Zone of Danger
Bystander
Special Relationship
Zone of Danger NIED
A third party can recover for NIED from a near miss if
1) in the zone of danger
2) physical symptoms
Bystander NIED
A bystander who was outside the zone of danger can recover for NIED for injury to a third party if
1) plaintiff and injured party are closely related AND
2) Plaintiff was present at the scene and personally observed or perceived the event
No physical symptoms required
Special Relationship NIED
When a special relationship exists such that the defendant’s negligence has a great potential to cause emotional distress, there can be a duty to not negligently cause emotional distress
Think negligent false cancer diagnosis
No physical symptoms
Custom or Usage and Breach
A breach can be established by divergence with an industry-standard or usage but it is NOT conclusive as an industry might be negligent
Res Ipsa Loquitor
A plaintiff may establish a breach of a duty occurred by showing that the type of harm or act typically occurs due to negligence and that the negligence is probably attributable to defendant because it ordinarily is caused by someone in D’s position – like the defendant had the sole control over the instrumentality of the negligence
If met, the plaintiff meets its prima facie burden
Negligence per se
If you can demonstrate a breach of a statutory duty of care, p has met duty and breach requirements but still need causation and damages.
Types of Causation Needed to Be Shown
Actual and Proximate
Factual or Actual Causation
Established with but for test – but for the defendant’s conduct, would the harm have occurred?
What do you do if there are two or more but for causes?
If there are two or more but for causes that caused the harm, they are merged and the act is considered a but for cause if it was a substantial factor in the harm
Joint and several liability usually attaches
Unasceratinable causes doctrine
If you have two acts but only one could have caused the injury and you can’t know which it is, the burden shifts to the Ds to show it wasn’t them
Proximate Cause
Limits actual causes to only those where the harm was foreseeable or the risk of this injury was increased by the act (foreseeability test)
Superseding causes
Superseding causes are those forces that create unforeseeable results
What are causes that are always foreseeable and do not relieve liability?
Medical malpractice
negligence of rescuers
efforts to defend themselves or property
injuries or illness that are later caused by the original injury
Eggshell-Skull Rule
Defendants take the plaintiffs as they are and are responsible for all damages, even those unforeseeable or that are an aggravation of an existing condition
Pure Comparative Negligence
Reduce the Plaintiff’s recovery by the percentage of fault they have. D recovers (and reduces P’s damages) by what P caused
Assumption of the Risk
A defense to negligence is an assumption of risk. Not a defense to intentional torts. Requires a showing that
1) plaintiff knew of the risk
2) voluntarily proceeded in face of the risk
Partial Comparative fault
P recovers pro rata so long as their fault is not more than 50%.
D cannot recover in this because if it’s under 50% not recovery, if more than 50% P’s fault, no damages at all.
Implied Assumption of the Risk
Assumption of risk can be implied if an average person in the circumstances would have clearly appreciated the risk.
No assumption if there was no alternative
Joint and Several liability
Where two or more negligent acts combine and cause an indivisible injury, the plaintiff may hold either negligent actor fully responsible for the entire damage.
If the injury is divisible, they are liable for their identifiable portion
