Torts II Flashcards

1
Q

Four exceptions to contributory negligence

A
  1. D engaged in intentional, reckless, or wanton acts
  2. Last Clear Chance Doctrine
  3. D has a duty under statute or common law to P from P’s own risky conduct
  4. P has no duty and/or has a right
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2
Q

Comparative negligence

A

P’s negligence limits D’s liability proportionally

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3
Q

Pure comparative negligence

A

P can recover no matter how great P’s negligence is

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4
Q

“Greater than” comparative negligence

A

If P’s fault or negligence is greater than the D’s then P is barred from recovery. Equal to is not greater than.

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5
Q

“Equal to” comparative negligence

A

If P’s fault is equal to or greater than D’s, then P is barred from recovery

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6
Q

Assumption of Risk

A

The P may be denied recovery if he assumed the risk of any damage caused by the D’s acts. This assumption may be express or implied.

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7
Q

Express assumption of risk

A

Contractual agreement via exculpatory clause. Exceptions: contracts of adhesion, public policy, public interest

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8
Q

Implied assumption of risk

A
  1. Knowledge of risk: Knowledge may be implied where the risk is one that the average person would clearly appreciate
  2. Magnitude/appreciation of risk
  3. Voluntarily encounters the risk
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9
Q

Statute of Limitations

A

Affirmative defense through which D claims the time period within which the suit should have been brought has run

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10
Q

When does the clock start running for SOL?

A
  1. Accrual of injury: the date you suffered the injury
  2. Discovery rule: the date they discovered or should have discovered the harm
  3. Continuing negligence: after the last injury suffered
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11
Q

Spousal immunity

A

Spousal immunity has been abrogated, spouses may now maintain a tort action against the other

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12
Q

Parental Immunity

A

General rule is that parents have immunity, but some jurisdictions have abrogated- if parents want to claim immunity, then they must prove that they were acting within the scope of ordinary parental discretion and there was no actionable duty to supervise

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13
Q

Step-Parent immunity

A

General rule is that no step-parent is automatically immune solely by virtue of marriage to the child’s parents.
Exception: in loco parentis- financially support the child per common law requirement and duty to support as a natural parent

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14
Q

Charity Immunity

A

General rule is that they are liable for it’s negligence and for the negligence of it’s employees acting within the scope of employment

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15
Q

State Government immunity

A

General rule is that a state and its government agencies are not subject to suit without the consent of the State (which has waived immunity in most instances)

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16
Q

Local government immunity

A

General rule is that local governments do not enjoy immunity, including villages, towns, municipal corporations

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17
Q

US government immunity

A

General rule is sovereign immunity.

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18
Q

Public officers immunity

A

General rule is that they are not immune from tort liability. A public officer acting w/in the general scope of his authority is immune from tort liability for an act or omission if he was engaged in exercise of discretionary function or if he was not negligent in the performance of his responsibility

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19
Q

Duty of Care: Privity of Contract

A

A P who lacks privity of contract with D may not sue D based on negligent performance of a contract between D and a third party

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20
Q

Duty of Care

A

General rule is to act as a reasonable person. A failure to act/omission to act a reasonable person constitutes a breach

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21
Q

Owners and Occupiers: Outside the premises

Natural conditions

A

Common law: no duty, no liability
Modern: Duty of reasonable care if: (i) possessor knows of risk or if risk is obvious, (ii) for property adjacent to public walkway landowner has no duty of care for risks they did not create

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22
Q

Owners and Occupiers: Outside the Premises

Artificial Conditions

A

Common law: duty of reasonable care (to act as a reasonable person)
Modern: duty of reasonable care

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23
Q

Owners and Occupiers: Outside the Premises

Urban/Rural distinction

A

Common law: Urban leans towards duty, rural leans away from duty
Modern: reasonableness is based on facts rather than geographical location per se

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24
Q

Owners and Occupiers: On the Premises

Trespassers

A

Common law: Before a trespasser is known, there is no duty. But a duty may exist or be owed to a trespasser if they have knowledge of presence; duty to try to avert injury or act carefully under the circumstances
Modern: duty to act as a reasonable person under the circumstances

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25
Q

Owners and Occupiers: On the Premises

Flagrant Trespassers

A

Common law: same as regular trespassers
Modern: duty not to act in an intentional, willful, or wanton manner. If the flagrant trespasser is imperiled and helpless, or unable to protect self, then there is a duty to act as a reasonable person

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26
Q

Owners and Occupiers: On the Premises

Invitees

A

Common law: duty to keep premises reasonably safe

Modern: merges invitees and licensees, duty to keep reasonably safe

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27
Q

Owners and Occupiers: On the Premises

Licensees

A

Common law: duty to warn guest of dangers unknown to guest and known to possessor
Modern: merges licensee and invitee, duty to act reasonably

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28
Q

Owners and Occupiers: Rowland

A

Merges all the categories: owners owe all entrants a duty of reasonable care

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29
Q

Owners and Occupiers: Restatement

A

Merges invitees and licensees, and trespassers. Treats flagrant trespassers differently

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30
Q

Contributory negligence

A

If the negligent conduct of the plaintiff is a cause of plaintiff’s injuries, the plaintiff is barred from recovering from defendant even though defendant’s negligent conduct also caused plaintiff’s injuries

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31
Q

Last Clear Chance doctrine

A

P’s claim is not barred when P is contributorily negligent if P can establish D had the last clear chance to avoid harm

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32
Q

Vicarious Liability

A

When one person commits a tortious act against a third party, and another person is liable to the third party for this act. P looks to the actor who committed the tort, and looks up the chain to see if anybody could be liable for the tort

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33
Q

VL: Respondeat Superior

A

Employer/employee: an employer will be vicariously liable for tortious acts committed by their employee if the tortious act occurs within the scope of the employment relationship

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34
Q

Frolic (scope of employment)

A

An employee is on a frolic if the pursuit of the employee’s personal business is a substantial deviation or an abandonment of the employment, and the employer is not liable

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35
Q

Detour (scope of employment)

A

An employee takes a deviation if it is sufficiently related to the employment to fall within its scope. If the deviation was minor in time and geographic area, the employer will be liable

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36
Q

Factors to determine whether deviation is slight or major: TWINEF

A

(1) employee’s intent
(2) nature, time, and place of deviation
(3) time consumed in the deviation
(4) work for which the employee was hired
(5) incidental acts reasonably expected by the employer, and
(6) freedom allowed the employee in performing his job responsibilities

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37
Q

Going and coming rule (scope of employment)

A

Employer liability is suspended from the time employee leaves his job until he returns. An exception to this is when an employee endangers others with a risk arising from or related to work (foreseeability).

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38
Q

VL: Independent Contractor

A

In general, a principle will not be held liable for tortious acts of an independent contractor

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39
Q

To determine whether one is an independent contractor:

A

Depends on the control exercised by the person who hired them- the less control there is, more likely to be an IC

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40
Q

Independent Contractor Exceptions:

A
  1. Non-delegable duties
  2. Apparent authority: D represents expressly or impliedly that the IC was an employee, then D is VL
  3. Inherently dangerous activities: whether the act carries a peculiar risk of harm that calls for more than ordinary precaution
  4. Illegal activities
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41
Q

VL: Joint Enterprise

A

Where D and the person who commits the tort are engaged in a joint enterprise, the D is VL

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42
Q

Joint Enterprise Elements (PACE)

A
  1. An agreement, express or implied, between members of the group
  2. Common purpose to be carried out by group
  3. Pecuniary interest in the purpose
  4. Equal right in control of the enterprise
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43
Q

VL: Bailments

A

The bailor is not vicariously liable for the tortious conduct of his bailee

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44
Q

VL: Imputed Contributory Negligence

A

Limited to employer/employee relationship: negligence of employee can be imputed to employer and therefore bar employer from recovering from the third negligent party

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45
Q

Bailments: Family Car Doctrine

A

The owner of a car is liable for the negligent operation of the car by member of his family when the owner furnished the care for the use, pleasure or business of family member, with consent for that use, express or implied

46
Q

SL: Livestock/Cattle

A

An owner of livestock or cattle that intrudes upon the land of another is subject to strict liability for physical harm caused by the intrusion.
Does not apply to livestock entering highways
Applies to harm that falls within the scope of risk that makes the activity tortious

47
Q

SL: Wild Animals

A

An owner of a wild animal is subject to SL for physical harm caused by the wild animal

  • No SL for wild animals living in the wild
  • Owner not liable if animal is stolen and injures someone
  • Owner not liable if animal returns to the wild and injures someone
48
Q

Definition of Wild Animal

A

A wild animal is an animal that belongs to a category of animals that have not been generally domesticated and that are likely, unless restrained, to cause personal physical injury

49
Q

SL: Other Animals

A

An owner of an animal that the owner knows or has reason to know has dangerous tendencies abnormal for the animal’s category is subject to SL for physical harm caused by the animal

50
Q

SL: Provocation of Animals

A

Injuries caused by provocation of animals do not establish dangerous tendencies

51
Q

SL: Abnormally Dangerous Activities

A

An actor who carries on an abnormally dangerous activity is subject to SL for physical harm resulting from that activity

52
Q

Definition of Abnormally Dangerous Activity

A

An activity is abnormally dangerous if: (1) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one of common usage

53
Q

Factors to determine whether an activity is abnormally dangerous:

A

(1) Inappropriateness of the activity to the place where it is carried on, and
(2) Extent to which its value to the community is outweighed by its dangerous attributes

54
Q

Limitation on SL: encountering the abnormally dangerous animal/activity

A

If the person suffers physical harm as a result of making contact w/ or coming into proximity of D’s animal or abnormally dangerous activity for their own benefit, there is no SL

55
Q

Product liability: breach of warranty

A

Express/Implied

Implied: warranty of merchantability, warranty of fitness

56
Q

Implied warranty of merchantability

A

Merchantability means that the good are of a quality equal to that generally acceptable and are generally fit for the ordinary purposes for which the goods are used. Seller knows the general purpose for it, and the ordinary grade, quality, and value of the product

57
Q

Implied warranty of fitnes

A

When the seller knows or has reason to know of the particular purpose for which the goods will be used and that the buyer is relying on the judgment and skill of the seller

58
Q

Product Defect Liability

A

A seller engaged in the business of selling or distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect

59
Q

Product Defect definition

A

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings

60
Q

Manufacturing defect definition

A

A product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product

61
Q

Design defect definition

A

A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonably alternative design, and the omission renders the product not reasonably safe

62
Q

Ways to prove design defect:

A

(1) 2(b), comment f
(2) 2, comment e, “manifestly unreasonable”
(3) 3, circumstantial evidence
(4) 4, violation of statutory requirement

63
Q

Ways to prove manufacturing defect:

A

(1) 2(A)

(2) 3, circumstantial evidence

64
Q

Design defect: Section 2(b) balancing factors:

A
  1. Risk-utility factors: cost-benefit, repair, maintenance factor
  2. Instructions and warnings accompanying the product
  3. Consumer expectations
  4. Probability and severity/magnitude of harm
65
Q

Design defect: manifestly unreasonable design

A

A product is manifestly unreasonable when it has such low utility and high degree of danger that the product must be considered defective even absent a reasonable alternative design

66
Q

Design defect: Section 3, circumstantial evidence

A

It may be inferred that the harm sustained by the P was caused by a product defect existing at the time of sale or distribution, w/o proof of a specific defect, when the incident that harmed the P: (1) was of a kind that ordinarily occurs as a result of product defect, and (2) was not solely the result of causes other than product defect existing at the time of sale

67
Q

Design defect: Section 4, violation of statutory requirement

A

A product’s noncompliance w/ an applicable product safety statute or admin regulation renders the product defective with respect to the risks sought to be reduced by the statute or regulation

68
Q

Warning Defect definition

A

A product is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions

69
Q

What constitutes a good warning:

A

A good warning should get the user’s attention, include both risks and risk avoidance where relevant.
-Does not have to warn about obvious risks

70
Q

Warning defect: intermediary rule (6(d)(2))

A

A RX drug or medical device is not reasonably safe due to inadequate instructions or warnings if reasonable instructions or warnings regarding foreseeable risks of harm are not provided to the patient when the manufacturer knows or has reason to now that health-care providers will not be in a position to reduce the risks of harm in accordance w/ instructions or warnings

71
Q

Warning defect: learned intermediary rule (6(d)(1))

A

A RX drug or medical device is not reasonably safe due to inadequate instructions or warnings if reasonable instructions or warnings regarding foreseeable risks of harm are not provided to prescribing and other health-care providers who are in a position to reduce the risks of harm in accordance with the instructions or warnings

72
Q

Design defect: RX drug or medical device

A

A RX drug or medical device is not reasonably safe due to defective design if the foreseeable risks of harm posed by the drug or medical device are sufficiently great in relation to its foreseeable therapeutic benefits that reasonable health-care providers, knowing of such foreseeable risks and therapeutic benefits, would not prescribe the drug or medical device for any class of patients

73
Q

Product Defect Defenses

A
  1. Comparative negligence
  2. Misuse/modification
  3. State of the art (design defect defense)
  4. Open and obviousness of risk (design and warning defect defense)
74
Q

Express Preemption

A

When Congress has expressly made its intent clear, the state law is preempted by federal law and the manufacturer need only comply with the federal regulations

75
Q

Implied Preemption

A

When Congress has not made its intent clear, the courts must determine whether preemption is warranted and which claims are to be preempted on a case by case analysis

76
Q

Impossibility (Preemption)

A

When there is a conflict between federal and State law, and therefore impossible to comply with both and the purpose is frustrated

77
Q

Joint and Several Liability

A

If you have more than one tortfeasor, under JSL each tortfeasor is both jointly and individually liable for the entire damages

78
Q

When JSL comes into play:

A
  1. Acting in concert
  2. Failure to perform a common duty
  3. When D acts independently to cause individual harm
79
Q

Apportionment of Damages under JSL

A

Applies when the injury is indivisible

80
Q

Concurrent tortfeasors

A

Concurrent tortfeasors plus indivisible injury = JSL

-Concurrent: two acts that are taking place at the same time that they together cause the harm

81
Q

Successive tortfeasors (related)

A

Successive related plus indivisible injury = D1 is JSL

-D2 and D3 no JSL

82
Q

Successive tortfeasors (unrelated)

A

Successive tortfeasors plus indivisible injury = JSL or not depends on which D is before the court

  • D1 cannot be responsible for everything
  • D2 can be responsible for everything
83
Q

Libel

A

Defamation by writing

-Spoken words that are telecast on radio or tv are considered libel in most jx

84
Q

Slander

A

Defamation by oral speech

85
Q

Elements for Libel and Slander per se claim:

A

To create liability for defamation there must be an unprivileged publication of false and defamatory matter of another

86
Q

Elements for Slander claim:

A

P must show that they suffered special damages, such as pecuniary damages or substantial loss as a result of slander

87
Q

Defamation defense:

A

truth, or substantial truth

88
Q

Slander per se: actionable without proof of special damages

A
  1. Imputation of major crime
  2. Loathsome disease
  3. Business, trade, profession, or office
  4. Serious sexual misconduct
89
Q

Communication

A

The D brings an idea to the perception of a third person about the P

90
Q

Publication

A

A communication to a third person who understood it and identified the P

91
Q

Public officer/public figure

A

Common law plus actual malice

92
Q

Actual malice

A

Knowledge of falsity or reckless disregard for falsity

93
Q

Private P/ public concern:

A

Common law plus negligence/fault off D in publication

-Actual malice for punitive/presumed damages

94
Q

Private P/ private concern:

A

Common law and negligence

-No actual malice required for recovering punitive/presumed damages

95
Q

Licensee

A

A social guest who is invited to the landowner’s property, but for the guest’s own purposes as opposed to the business of the landowner

96
Q

Invitee

A

An individual who is invited onto the premises as a member of the general public in furtherance of the premises owner’s business

97
Q

Express Assumption of Risk exception: when public policy is affected:

A
  1. When the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence;
  2. When the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other’s negligence; and
  3. When the transaction involves the public interest
98
Q

Duty of Care: Privity of Contract for Public Duty

A

Generally, there is no privity required for a public duty.

-The D undertakes a duty in place of third party, the P relies on such an undertaking to the detriment of the P

99
Q

Strict liability defense

A

Comparative Negligence

100
Q

Elements P has to prove to recover under strict liability (product):

A
  1. The D manufactured and sold a product in a defective condition unreasonably dangerous to the consumer or user;
  2. The product was expected to and did reach the ultimate consumer w/o substantial change in the condition it was in at time it was sold; and
  3. The defective condition in the product proximately caused injury to P
101
Q

Failure to act: therapist

A

When a therapist learns from his patient about intent to do harm to third party, the therapist has a duty to take reasonable precaution given the circumstances to warn the potential victim of danger

102
Q

Owners and occupiers: lessor/lessee

A

Landlord must exercise ordinary care toward his tenant and others on the leased premises with the tenant’s permission. Where a landlord maintains control over parts of the building for common use, the landlord has a legal duty to exercise reasonable care to minimize the risk to tenants of foreseeable criminal acts committed on the premises

103
Q

Product liability: post-sale failure to warn

A

One who sells or distributes products is subject to liability for harm caused by seller’s failure to provide a warning after the time of sale or distribution of a product if a reasonable person in the seller’s position would provide a warning

104
Q

JSL: acting in concert

A

If a group of individuals act in concert and their concerted act causes harm to the P, JSL applies

105
Q

JSL: failure to perform a common duty to P

A

If a group of individuals act in a manner that creates a joint duty not to do harm, then JSL applies (included in this are cases involving liability of two parties based on their relationship to each other)

106
Q

JSL: when Ds act independently to cause indivisible harm

A

If individuals are acting independently but their acts result in an indivisible harm to a person, JSL applies

107
Q

JSL: indivisible injury

A

Feasibility of apportioning fault on a comparative negligence basis does not render an indivisible injury “divisible” for purposes of JSL

108
Q

When SL is appropriate

A

SL is appropriate against parties engaged in abnormally dangerous activities; negligence is proper if the risk can be avoided with exercise of due care

109
Q

US gov immunity: FTCA

A

By enacting the FTCA, congress opted to waive sovereign immunity to civil suit and to give consent to be sued for known damages. Exception to this is the discretionary function, which shields the gov from civil liability for claims based upon the exercise or performance of a discretionary function

110
Q

Scope of employment

A

An employee is acting within the scope of employment when he is performing services for which he has been employed, or when he is doing anything which is reasonably incidental to his employment