Torts Hot Topics

Question 1

To whom do you owe a duty of care?

Answer 1

Duties of care are only owed to foreseeable plaintiffs, including rescuers.

Question 2

Do you owe a duty of care to rescuers?

Answer 2

Yes, rescuers are foreseable plaintiffs.

Question 3

Firefighter Rule

Answer 3

Firefighters are barred from recovering for injuries that come from the inherent risks of the job

Question 4

Reasonably Prudent Person Duty

Answer 4

All people have a duty to exercise the care that a reasonably prudent person would to avoid injuring foreseeable victims with their activity.

Question 5

Should you consider mental or physical deficiencies when using a reasonably prudent person standard?

Answer 5

No, the RPP is an objective standard. If there’s a physical defect, you apply the RPP with that defect standard.

Question 6

Children Standard of Care

Answer 6

Children’s duty of care is subjectively based on that child’s intelligence, experience, and age. Under 5 presumed to not be negligent.

Question 7

Professional Standard of Care

Answer 7

Professionals are expected to have the same knowledge and exercise the skill of an average member of the profession

Question 8

What standard is used for medical professionals?

Answer 8

You apply a national standard of care, not local

Question 9

What are the 4 types of duty that a land possessor may owe?

Answer 9

Unknown trespasser
Known or anticipated trespasser
Licensee
Invitee

Question 10

Duty of Care to Unknown Trespasser

Answer 10

There is no duty owed to an unknown trespasser

Question 11

Duty to Known or Anticipated Trespassers

Answer 11

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

Question 12

Duty to Licensees

Answer 12

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

Question 13

Duty to Invitees

Answer 13

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

Question 14

Attractive Nuisance Doctrine

Answer 14

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

Question 15

When may a statute provide a standard of care?

Answer 15

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

Question 16

What are the excuses that can be raised to statutory standards of care?

Answer 16

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

Question 17

3 Types of Negligent Infliction of Emotional Distress

Answer 17

Zone of Danger
Bystander
Special Relationship

Question 18

Zone of Danger NIED

Answer 18

A third party can recover for NIED from a near miss if

1) in the zone of danger
2) physical symptoms

Question 19

Bystander NIED

Answer 19

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

Question 20

Special Relationship NIED

Answer 20

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

Question 21

Custom or Usage and Breach

Answer 21

A breach can be established by divergence with an industry-standard or usage but it is NOT conclusive as an industry might be negligent

Question 22

Res Ipsa Loquitor

Answer 22

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

Question 23

Negligence per se

Answer 23

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.

Question 24

Types of Causation Needed to Be Shown

Answer 24

Actual and Proximate

Question 25

Factual or Actual Causation

Answer 25

Established with but for test – but for the defendant’s conduct, would the harm have occurred?

Question 26

What do you do if there are two or more but for causes?

Answer 26

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

Question 27

Unasceratinable causes doctrine

Answer 27

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

Question 28

Proximate Cause

Answer 28

Limits actual causes to only those where the harm was foreseeable or the risk of this injury was increased by the act (foreseeability test)

Question 29

Superseding causes

Answer 29

Superseding causes are those forces that create unforeseeable results

Question 30

What are causes that are always foreseeable and do not relieve liability?

Answer 30

Medical malpractice

negligence of rescuers

efforts to defend themselves or property

injuries or illness that are later caused by the original injury

Question 31

Eggshell-Skull Rule

Answer 31

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

Question 32

Pure Comparative Negligence

Answer 32

Reduce the Plaintiff’s recovery by the percentage of fault they have. D recovers (and reduces P’s damages) by what P caused

Question 33

Assumption of the Risk

Answer 33

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

Question 34

Partial Comparative fault

Answer 34

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.

Question 35

Implied Assumption of the Risk

Answer 35

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

Question 36

Joint and Several liability

Answer 36

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