TORTS LAW: PART II Flashcards
What is the European Bystander Rule?
Individuals can be punished for failing to aid someone in need of help
Why does the U.S not impose a duty of care?
- Individuals who intervene may be put in jeopardy
- Bystanders may not have enough information to act; making the situation worse
- Individuals may lack the skills needed to intervene without harming themselves
What obligates people to have ‘duty to rescue’?
- Status- people are obligated to help their children, spouse, employees
- Statute- Duty can be imposed by statute (e.g. doctors required to report suspicion of child abuse)
- Contract- Duty to intervene can be created via contract (e.g babysitter jobs)
- Assumption of a duty- when someone voluntarily interferes, they assume a duty of care.
- Creation of Peril- Individuals are obligated to intervene when they intentionally, or negligently, create danger to others
- Control- Individuals have a duty of care to those they control/command
- Property owners- have a duty to make sure their property is safe for those they invite
What three things do prosecutors have to prove to say there was a duty of care?
- The defendant had knowledge of the peril
- The defendant acted with the required intent
- The defendant caused harm to the victim
What are the three types of visitors and what are the duties owed by property owners?
- Invitees: regular inspections, fix hazards and post warnings
- Licensees: make aware of known hazards
-Trespassers: basically none, but no traps
What are the elements of Attractive Nuisance?
- There is a dangerous condition on property
- The condition attracts young children
- A child, incapable of understanding the danger due to age, was injured by this condition
- The landowner failed to take steps to guard against injury
- Preventing access to the condition was feasible without obstructing its intended purpose
What are the two types of causation?
- Cause-in-Fact: the “but for” cause
- Proximate cause: mainly focused on foreseeability
What is foreseeability?
Whether a person of average intelligence could have reasonably predicted the consequences of the defendant’s conduct
What are the two types of defenses to limit plaintiff recovery?
Negligence:
1. Contributory- total bar on recovery
2. Comparative fault- limits recovery proportionally
Assumption of Risk: bars recovery for plaintiffs who voluntarily assume a known risk
1. Express- as in the form of a liability waiver
2. Implied- where plaintiff participates in an obviously dangerous activity, or remains after danger is made clear
When does ‘Res Ipsa Loquitur’ apply to products liability?
- If the defendant had exclusive control over the allegedly defective product during manufacture
- If under normal circumstances, the plaintiff would not be injured by the product if the defendant had exercised ordinary care
- If the plaintiff’s conduct did not contribute significantly to the accident
What is Imputed Negligence?
Where in some circumstances, some individuals can be held liable for the negligence of others
What is respondeat superior?
Can hold employers liable for the negligence of their employees conduct during the course of employment
What are the basic elements of Respondeat Superior?
- The individual was an employee when the injury occurred
- The employee was acting within the scope of his/her employment
- The activities of the employee were a benefit to the employer
What is Strict Liability?
These torts impose liability without any proof of negligence where:
- The defendants engaged in abnormally dangerous activities
- Where a product was unreasonably dangerous and defective
What are some Damages Rules?
- Joint and Several Liability: if multiple defendants contribute to the plaintiffs harm, the plaintiff can seek damages from all of them or any individually
- Eggshell Plaintiff Rule: an injury to a plaintiff that is exacerbated by a plaintiff’s unique vulnerability (such as a thin skull) is deemed to be legally foreseeable
