Torts II Flashcards
What is the Burden of Proof?
The plaintiff must prove by a preponderance of the evidence that the defendant more likely than not was the cause of the plaintiff’s injury. The plaintiff has both the burden of persuasion and burden of production in their case.
Say your Negligence Rule Statement Out Loud…
5 Elements:
DBCPD
What are the three types of people in a Premises Liability Case?
- Trespasser
- Licensee
- Invitee
Attractive Nuisance
A landowner owes a duty of ordinary reasonable care to trespassers who are children if they knew children were likely to encounter it. The duty of care is to keep devices or machinery on the land reasonably safe to the child. The element used to determine if the dangerous condition is an “attractive nuisance” are as followers.
- First, the possessor knows or should know that childrens are likely to trespass (or frequent the vicinity of the dangerous condition).
- Second, the condition is one that the possessor knows or should know will involve an unreasonable risk of death or serious bodily harm to those children.
- Next, the children, because of their youth, do not discover the condition or realize/appreciate the risk of danger.
- Also, The utility/expense to the possessor of remediating the condition is slight compared to the risk to children.
Exception: if the child knows of the danger, understands the danger and can avoid the danger the possessor owes the same duty of care as an adult trespasser.
What is a possessor?
a person who (a) occupies the land and controls it; (b) is entitled to immediate occupation, and (c) is acting on the possessor’s behalf unless consent and privilege are represented.
What is a lessor and what are the exceptions?
One who leases property to another and is generally not liable for dangerous conditions on the leased premises because they have given up possession of the premises.
Exceptions: Undisclosed dangerous conditions known to the lessor; conditions dangerous to persons outside the premises; premises leased for admission of the public; common areas under lessor’s control; contract to repair; negligence by the lessor in making repairs.
What duty does each level of PL need to give the people on their land?
T- No duty other than to avoid wanton, willful, reckless actions. EXCEPT: known trespassers are wed the duty to be warned of artificial dangers.
L- Duty to warn of known latent dangers and exercise care in active operations. Avoid willful, wanton, reckless actions.
I- Duty to warn of known latent dangerous conditions, inspect and repair dangerous conditions
Say Your Premises Liability Rule Statement Out Loud
Premises liability is used to determine who was owed a duty and to what extent it was owed to determine the liability of a possessor/defendant of land when a plaintiff is injured. When someone is on a possessor’s property they are classified as either a trespasser, a licensee, or an invitee. Each class of occupant is owed different duties of care by the possessor.
A trespasser is owed no duty of care except to not be met with willful, wanton, or reckless acts by the possessor. If a trespasser is discovered they must be warned against known artificial dangers. However, in the circumstance arises where a possessor knows or should know that an artificial condition that is highly dangerous to trespassing children is present (a.k.a. “Attractive Nuisance”). The possessor can be found liable for damages incurred because they could reasonably know that a unreasonable risk of harm or injury is present to the children that would likely trespassers and because of their youth and not reasonably likely to understand the condition or risk of harm the danger poses. If the possessor could have mitigated the harm by removing the danger, obstructing access to it, or otherwise safeguarding the “attractive nuisance” but didn’t, liability will likely lie.
A licensee is a person invited onto the possessor’s property for their benefit and is most commonly a social guest, but can also include emergency personnel. Licensees are owed the duty to be warned against known latent dangers (possessor does not have the duty to fix the dangers), unless open and obvious, and are owed the duty of care in active operations. Licenses are not owed these duties if they step beyond the scope of their license.
Invitees are persons present on the land for the possessor’s purposes pursuant to an invitation made to the public generally or relating to the possessor’s business interests Invitees are owed the highest duty of care and must be warned of all known latent dangers, the possessor must inspect for danger and fix and make safe those issues that are found, and take reasonable care in active operation. Invitees are most commonly store customers, restaurant patrons, or people using another’s land at their general, public invitation.
What are the elements to NIED?
- Negligence
2.Causationofsevereemotionaldistress - Proofofgenuineness
a. Physicalimpact
b. Physicalconsequence
c. Invasion of a legally protected interest
d. Compellingfacts
e. Other evidence - Proof that the plaintiff was the primary victim or a bystander who is entitled to recovery.
What is the Impact Rule? Is it the Old Rule or New Rule ?
Impact Rule: traditionally, emotional damage was only allowed as a claim that could be brought if there was physical harm FIRST, as pain and suffering. Thus the defendant’s conduct must have caused some form of physical impact upon the plaintiff. Thus D must have subjected P to physical impact- OLD RULE.
What is the Risk of Impact Rule and is it the old or new rule?
NEW RULE allows recovery for mental distress of the plaintiff who was at risk of impact (P is within zone of danger). THIS rule generally still requires that the emotional distress have some physical manifestation of the distress.
What are the two methods a bystander can recover? What is the majority and what is the minority? Please List the Elements:
Bystander Recovery:
Zone of Danger (Maj) and Forseeability (Dillon v. Legg/ Min. )
● Majority
(1) P has suffered emotional distress because of physical injury to another;
(2) P must be within the “zone of danger”
(3) P is closely related to the victim (majority)
● Dillon v. Legg
(1) P is physically near the accident;
(2) P has contemporaneous sensory perception of the accident;
(3) P is closely related to the victim (minority)
● Alternatives for Recovering Emotional Distress Damages
○ Loss of consortium
○ Wrongful death 7
○ Breach of fiduciary duty
Give the NIED Full Rule Statement:
In cases of Negligent Infliction of Emotional Distress (NIED), a plaintiff may recover damages for emotional harm caused by the defendant’s negligent conduct. To establish a claim for NIED, the plaintiff must prove: (1) the defendant owed a duty of care to the plaintiff, typically arising from a special relationship or foreseeability of harm; (2) the defendant breached that duty by engaging in negligent conduct; (3) the plaintiff suffered serious emotional distress that was foreseeable as a result of the defendant’s conduct; and (4) the emotional distress was severe and beyond that which would be anticipated in a reasonable person under similar circumstances. Importantly, some jurisdictions require additional elements such as physical manifestation of the emotional distress or a close relationship between the plaintiff and the victim of the defendant’s negligence.
What do we know about alcohol related injuries?
Common Law: neither sellers of liquor nor social hosts were liable to those
injured by those to whom they served alcohol. Courts viewed the inebriated
driver, not the supplier as the liquor as the sole proximate cause of the harm.
- Most courts, however, have refused to impose liability on social hosts out of concerns that the imposition of liability on the supplier of liquor minimizes
responsibility of the drunk driver, interferes with well-established social customs, and creates the standard difficult to apply.
Briefly, what is the basic gist of strict liability?
Strict Liability- no one is at fault (essentially jumps over elements of duty
and breach- no investigation of reasonableness)
What does a prima facie case of strict liability have?
A prima facie case of strict liability requires:
○ Act or omission to act (where there is a duty to do so)
○ An absolute duty to make safe (due to the nature of the activity)
○ Breach (of that duty)
○ Cause-in-fact (act or omission still must be the cause in fact)
○ Proximate cause (AND it still must be FAIR)
○ Damages (must have HARM)
What is ADA? Give everything you know about it? Please give examples.
○ A defendant engaged in an abnormally dangerous activity is subject to
strict liability without any proof of negligence caused by the activity,
regardless of precautions taken to prevent the harm.
○ “Abnormally dangerous activity”: creates a foreseeable and highly
significant risk of physical harm even when reasonable care is exercised; and is not commonly engaged in.
■ Courts often consider the gravity of the harm resulting from the activity, the inappropriateness of the place where the activity is being conducted, and the limited value of the activity to the community.
● EXAMPLES: blasting, mining, using explosives, crop dusting, disposing of hazardous waste.
What is the best is the basic gist of vicarious liability?
(imputed Makes one liable for another’s wrongful conduct due to a special
relationship between them (employee-employer)
■ Guilt by association
○ Therefore, it must always be shown FIRST that the employee was acting tortiously before the employer can be held liable.
What do you know about Respondeat Superior
Respondeat Superior: An employer is vicariously liable for any tortious acts committed by
(1) The actor was an employee (servant) as opposed to an independent contractor.
(a) Consider the defendants control or right to control the physical performance
(2) within the scope of his employment (consider benefit and control) ALSO consider frolic and detour.
(a) Consider whether the conduct:
(i) Is of the kind the servant is employed to perform
(ii) Occurs substantially within authorized time and space;
(iii) Is actuated, at least in part, by a purpose to serve the master; and
(iv) Involves unexpectable intentional force.
- Was the conduct consistent with an intent to benefit the
employer?
- Did the employer have the right to control the employees
behavior?
In today’s courts, will the Courts generally hold the employer liable if the detour is reasonably foreseeable; a factor used to determine the foreseeability of the detour is the DISTANCE of the detour.
Yes, This is the Slight Deviation Rule
Is a employer generally liable for intentional torts?
No, unless the intentional tort was done for the benefit of the employer
When is an employer liable for an independent contractor? (Hint there is an acronym)
Non-delegable duty by statute or public policy
Ultrahazardous- the work carried on by the Independent Contractor involved ADA
Negligence- Where an employer negligently selects an incompetent contractor
Say your Strict Liability Rule Statement ; Wild/Domestic Animals
Under the doctrine of strict liability, a defendant may be held liable for harm caused by an ultra-hazardous activity or defective product, regardless of fault or intent. To establish strict liability, the plaintiff must prove that the activity or product involved carries a high degree of risk, that the defendant engaged in the activity or distributed the product, and that the harm suffered by the plaintiff was a direct result of the activity or product’s dangerous propensity. (maybe do the
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elements). Notably, the plaintiff need not demonstrate negligence on the part of the defendant; rather, strict liability imposes liability based solely on the dangerous nature of the activity or product.
General duty is an obligation based on a relationship that requires one person not to place another at an unreasonable risk of harm. That duty changes depending on whether the defendant is a doctor, child, parent, or entrant to property. An absolute duty is owed to make safe abnormally dangerous animals, activities, and conditions. The duty is owed to foreseeable plaintiffs and only the harm that flows from the wild animal. A defendant may be held strictly liable to invitees and licensees who are injured by dangerous domestic animals while on the defendant’s land. To trespassers, a landowner may generally not be held to a strict liability standard and must show the landowner knew that the trespasser was on land and failed to warn the trespasser of wild animals. To consider whether an animal is considered wild or domestic: consider the customs of the community and the utility of keeping the animal.
The defendant breaches that duty when they fail to act as a reasonably prudent person and places another at an unreasonable risk of harm. In strict liability, it is presumed the defendant had a duty and they breached that duty.
Actual cause is present where the defendant’s conduct harmed the plaintiff. The but-for test is defined as the plaintiff must show that “but for” the defendant’s negligence action, the injury would not have occurred.
The defendant’s actions were the proximate cause of the harm suffered by the plaintiff in that the defendant should have reasonably foreseen, as a risk of their conduct, the general consequences of the type of harm suffered by the plaintiff.
The plaintiff can seek to recover monetary damages.
What is the Vicarious Liability Rule Statement?
Under the doctrine of strict liability, a defendant may be held liable for harm caused by an ultra-hazardous activity or defective product, regardless of fault or intent. To establish strict liability, the plaintiff must prove that the activity or product involved carries a high degree of risk, that the defendant engaged in the activity or distributed the product, and that the harm suffered by the plaintiff was a direct result of the activity or product’s dangerous propensity. (maybe do the elements). Notably, the plaintiff need not demonstrate negligence on the part of the defendant; rather, strict liability imposes liability based solely on the dangerous nature of the activity or product.
General duty is a responsibility placed on one to not put someone at an unreasonable risk of harm. That duty changes whether the defendant is a doctor,
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parent, or entrant on the property. An absolute duty is owed to the plaintiff to keep safe from a foreseeable abnormally dangerous activity, animals, and conditions. Vicarious liability will be imposed when there is a special relationship such as family or employee/employee. Under the respondeat superior, an employer is vicariously liable for the tortious acts of their employees if their conduct was within the scope of their employment. In other words, the employee’s conduct was in furtherance of the employer’s business. The apparent agency is where someone is permitted to have authority from the principal authority. When looking at the employee’s scope of employment, the court will look at benefits and control.
Breach of that duty is when the defendant fails to act as a reasonably prudent person would in the situation. This is an objective standard. The factors that could affect the reasonably prudent person’s standard are age, gender, and insanity. Professionals are held to a higher standard because they have superior knowledge.
Actual cause is present when the defendant’s conduct is the actual cause of the plaintiff’s injury. Actual cause can be determined by the but-for test in which the plaintiff must prove that but for the defendant’s negligence, the harm would not have occurred.
The defendant’s conduct was the proximate cause of the harm suffered by the plaintiff in that the defendant should have foreseen, as the risk of their conduct, the general consequences of the type of harm suffered by the plaintiff.
The plaintiff can recover monetary damages. REDO
Give the basic gist of product liability
negligence based product liability is based on a manufacturer’s bread of the reasonable standard of care and failing to make a product safe. It is a cause of action- based upon reasonable actions of the manufacturer; a viable alternative position.
Manufacturer must exercise “due care” in:
Manufacturer must exercise “due care” in:
■ Designing products
■ Manufacturing and assembling products
■ Inspecting and testing products
■ Placing adequate warning labels
Can manufactures who violate f/s law in the manufacturing or labeling be liable for negligence per se?
You bet your sweet bippy they can.
Is privity of contract required between plaintiff and manufacturer?
No! Liability extends to any persons injuries caused by a negligently made (defective) product, but unjust must still be foreseeable (not remote or bizarre, so PROX CAUSE).
In what ways can a manufacturer/ supplier be negligent? 5 ways.
A manufacturer/ supplier can be negligent in 5 ways: (1) manufacturing flaw
(2) failure to reasonably inspect
(3)negligent design
(4) failure to warn
(5) failure to use care to make the product with quality components
FIRST, plaintiff must have been hurt by a ________, made by defendant, as
a commercial seller-
Product
SECOND, plaintiff must show (by a preponderance of the evidence) that the
product was _________ when the product left the defendants control.
○ Defective: product which is in a condition that is unreasonably
dangerous to users. (manufacturing, design, and inadequate warnings)
What is a manufacturing defect?
■ When a product is produced differently from other identical products, and is also more dangerous due to the way it was made.
● the product was so “unreasonably dangerous” as to be defective BECAUSE of the manufacturing process.
What is a design defect?
Where all the products are made the same and there is a
dangerous condition on EACH PRODUCT and the entire product line is defective because of poor design.
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■ Inadequate warning: a type of design defect where the product may not be defective BUT the product fails to contain: (1)effective
(2) clear warnings of any dangers that
(3)may not be apparent to users.
- ASK “would a warning have made a difference?”
What is the minority test for Product Liability?
Consumer Expectations Test
-a product is considered defective if it is unreasonably dangerous to the
consumer in a way that goes beyond what the consumer would
reasonably expect.
- The ordinary adult consumer is the focus of this test, and courts
consider whether the danger posed by the product exceeds what would
be anticipated by such a consumer.
- Specialized knowledge can play a factor
What is the risk/utility test?
- Product is defective as designed only where the magnitude of the
hazards outweighs the individual utility or broader societal benefits of
the product. - 7 factors to determine:
- Utility of the product to the public as a whole and to the individual
- Nature of the product and likelihood that it will cause injury
- Availability of a safer design
- Potential for designing and manufacturing the product so that it
is safer but remains functional and reasonably priced - Ability of the plaintiff to avoid the injury
- Degree of awareness of the potential danger of the product
risk/utility test (MAJORITY) - Manufacturers ability to spread any cost related to improving the safety of the design.
Requirements of a products liability claim based on strict liability
- Defect: the product must have been in a defective condition
unreasonably dangerous to the user/consumer or his property; - Control: when it left the defendants control (defendant can be held
liable even if he did not cause the defect; - Changes: product must not undergo significant changes before it gets
to the user; - Business: the seller must be in the business of selling the product
(can’t be a casual seller or merely a user); - Causation: damage must result from the defunct (defendant is liable
for any physical damage; where the only loss is economic like lost
profit, strict liability is usually denied); - Privity not required: duty extends to anyone foreseeably endangered
by the product (no privity requirement) - Defendant Can’t Conceal Bad Commercial Products
What is the pure economic loss rule?
Plaintiff cannot recover in negligence (or strict liability) for pure economic injury not resulting from personal injury or injury to property. (just in the slides, did not go in depth of importance)
What is the basic gist of defenses based on plaintiffs conduct ?
Whether conduct on the part of the plaintiff reduces the amount for which a defendant may be held liable?”
What are the defenses to negligence?
Defenses to Negligence:
after they proved the defendant liable (they had a duty and they breached that duty)
- The defendant then gets the opportunity to say that the plaintiff was negligent as well.
- “The defendant can throw mud on the case”
A. ContributoryNegligence
B. Comparative fault
C.Assumptionoftherisk
D. Statute of limitations (covered later)
E. Statusofrepose(coveredlater)
● Plaintiff’s Failure to Exercise Care (doctrinal options, NOT elements)-
List the ways that allow complete bar to recovery, sometimes,
a. Always a complete bar to recovery
i. Classic contributory negligence
b. Sometimesacompletebartorecovery
i. Contributory negligence supplemented by the last clear chance
c. Always a partial bar to recovery
i. Pure comparative negligence
d. Sometimes a partial bar and otherwise a complete bar to recovery.
i. Modified compared to negligence
e. Never a bar to recovery
i. Workers compensation, no-fault auto insurance
What is contributory negligence in a nutshell ?
(at common law) “Conduct on the part of the plaintiff which falls below
the standard of conduct (failure to exercise care) to which he should conform for his own protection, and which is a legally contributing cause… in bringing about the plaintiff’s harm.”
■ Plain Language: contributory negligence is carelessness on part of the plaintiff, which contributes (factually and proximately) to the production of the plaintiff’s harm.
What are some examples of contributory negligence?
- A plaintiff-pedestrian crossing the street against the light
- A plaintiff driving at an unreasonable speed that deprived him of the
opportunity to avoid an accident.
Is contributory negligence a complete defense to negligence?
Yes, although it is NOT a defense to an intentional tort, gross negligence or recklessness
Tell me about Last Clear Chance (limit on contributory negligence).
The plaintiff may mitigate the legal consequences of her own contributory negligence if she proves the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.
■ Plain Language: The doctrine of last clear chance provides that negligence on part of the plaintiff will not defeat recovery if the defendant (and not the plaintiff), through the exercise of ordinary care, had the last chance to avoid the accident.
○ Helpless plaintiff (knew or should have known) and Inattentive plaintiff (actual knowledge.
○ The doctrine has been widely abolished since adoption of comparative principles.
In imputed Contributory Negligence, what is imputed and what is not?
○ Imputed (to lay responsibility or blame for (something) often falsely or
unjustly.)
■ Employee’s conduct is imputed to employer
■ Direct victims conduct is imputed to a plaintiff with a derivative
claim.
● Wrongful death; loss of consortium
○ Not imputed
■ Parent and child
■ Spouse and spouse (married plaintiff whose spouse was contributorily negligent in causing harm to third party)
■ Driver and passenger
Give an example of imputed contributory negligence
An employee’s negligent driving may prevent or reduce an employer’s recovery from a third party if the employer’s car is damaged by the third party’s negligence. The fault of one business partner can be imputed on another business partner as contributory negligence when the second party is suing a third party.
If the negligence of a third person would have been imputed to a person as a defendant (negligence of an employee would be imputed to an employer under respondeat superior in a suit by a third party), the negligence of the third person will also be imputed to the person as a plaintiff (negligence of an employee will be imputed on an employer to bar or reduce recovery when the employer sues thies person).
If the negligence of a third person would have been imputed to a person as a defendant…
(negligence of an employee would be imputed to an employer under respondeat superior in a suit by a third party), the negligence of the third person will also be imputed to the person as a plaintiff (negligence of an employee will be imputed on an employer to bar or reduce recovery when the employer sues thies person).
What is an example of pure comparative negligence?
Example:
If the plaintiff’s full damages are $100,000, the plaintiff is 80% at fault and the defendant is 20% at fault, then the plaintiff will recover $20,000
What does comparative negligence/ fault attempt to do?
Attempts to apportion damages between a defendant and a plaintiff
based on their relative degrees of fault.
In the __________ states: of the plaintiff is more likely than ________ to be found likely to be found responsible for the harm the case is thrown out.
- majority
- 49%
