Torts (Main Deck)* Flashcards
WHAT IS THE GENERAL APPROACH TO ANALYZING A TORTS QUESTION?
STEP 1: For each individual tort:
1A: PRIMA FACIE CASE: Determine if the Plaintiff can establish a prima facie case against the Defendant.
1B: DEFENSES: Determine what defenses are available to the Defendant.
STEP 2: 3RD-PARTY LIABILITY: Consider issues of third-party or multiple Defendant liability.
STEP 3: REMEDIES: Determine what remedies may be available to the Plaintiff.
PRELIMINARY ISSUE:
BY WHAT STANDARD MUST THE ELEMENTS OF A TORT ACTION BE PROVEN & WHO CARRIES THE BURDEN?
Tort actions and defenses generally must be proven by a preponderance of the evidence. In rare cases, an element or defense must be established with clear and convincing evidence (e.g., actual malice in a defamation action brought by a public official).
Note: A preponderance of the evidence means that it is more likely than not (i.e., more than 50 percent likely) that the facts are as the offering party purports them to be.
PRELIMINARY ISSUE:
WHAT IS EACH PARTY’S BURDEN OF PROOF IN A TORT ACTION?
Plaintiff: To establish a prima facie case against a Defendant, the Plaintiff carries the burden to prove each element by a preponderance of the evidence.
Defendant: Once the prima facie case has been established, the Defendant may raise applicable defenses, which also must be proven by a preponderance of the evidence.
PRELIMINARY ISSUE:
WHEN WILL A PLAINTIFF BE BARRED FROM BRINGING SUIT IN TORT, REGARDLESS OF THE ACCUSATION?
Rule: A Plaintiff will be barred from bringing suit if the Defendant can claim an absolute immunity.
Common Law: At common law, the following enjoy complete immunity from tort liability:
1) Charities,
2) Spouses (from suing each other),
3) Parents and underage children, AND
4) Government agencies.
Modern Approach:
1) Most jurisdictions have removed the charity and spousal immunity.
2) Tort actions are allowed between underage children and parents for intentional torts.
3) The Federal Tort Claims Act provides a limited waiver of immunity for acts carried out in the course of executing or implementing government policy.
STEP 1 -
PRIMA FACIE CASE & DEFENSES:
LIST THE 9 CATEGORIES INTO WHICH A TORT MAY FALL
1) Intentional Torts
2) Negligence Torts
3) Strict Liability Torts
4) Products Liability Torts
5) Nuisance Actions
6) First-Amendment Related Torts (Defamation & Invasion of Privacy)
7) Misrepresentation Torts
8) Interference with Business Relations Torts
9) Wrongful Institution of Legal Proceedings Torts
INTENTIONAL TORTS:
WHAT ELEMENTS MUST THE PLAINTIFF GENERALLY ESTABLISH TO PROVE A DEFENDANT’S LIABILITY FOR AN INTENTIONAL TORT?
Rule: To establish a Defendant’s liability for an intentional tort, the Plaintiff generally must prove:
1) The Defendant acted voluntarily,
2) The Defendant acted with the requisite intent, AND
3) The Defendant’s action was the cause of the tortious result.
Note: Most intentional torts do not require that actual damages be proven to establish a prima facie case (i.e., the Plaintiff can sue for nominal damages).
INTENTIONAL TORTS:
WHAT TYPE OF INTENT MUST THE DEFENDANT HAVE TO BE HELD LIABLE FOR AN INTENTIONAL TORT?
Rule: To establish the Defendant acted with intent sufficient to be held liable for an intentional tort, the Plaintiff must prove the Defendant:
1) Actually desired to bring about the consequences of his act, OR
2) Knew or believed such consequences were substantially certain to result from his act.
Note:
1) The Plaintiff need only prove that the Defendant intended to commit the act which amounts to a tort. Thus, the Defendant’s knowledge that the act amounts to a tort and/or mistaken belief regarding the circumstances surrounding his activities are irrelevant to proving intent.
2) The requirement of substantial certainty is met if the Defendant knew or believed there was a high probability that the result would occur.
3) Everyone has the capacity to form the intent to commit an intentional tort. Thus, neither infancy nor insanity is a defense to intentional torts.
INTENTIONAL TORTS:
DOCTRINE OF TRANSFERRED INTENT
(Define & State the Rule)
Definition: Under the Doctrine of Transferred Intent, a Defendant’s intent can be transferred from one tort to the tort actually committed and/or from one person to the person actually harmed.
Rule: The Doctrine of Transferred Intent applies to five torts:
1) Assault
2) Battery
3) False Imprisonment
4) Trespass to Land
5) Trespass to Chattel
Note: Assault, battery, and false imprisonment are intentional torts to the person. Trespass to land and trespass to chattel are intentional torts to property.
INTENTIONAL TORTS:
LIST 4 INTENTIONAL TORTS TO THE PERSON
1) Assault
2) Battery
3) False Imprisonment
4) Intentional Infliction of Emotional Distress
INTENTIONAL TORTS:
ASSAULT
(Define & State the Rule)
Definition: Assault occurs when a person intentionally places another in apprehension of immediate harmful or offensive physical contact.
Rule: To establish a Defendant’s liability for assault, the Plaintiff must prove:
1) The Defendant acted voluntarily,
2) The Defendant intended to place the victim in fear or apprehension of an imminent harmful or offensive physical contact, AND
3) The Defendant’s act caused the Plaintiff to feel reasonable apprehension.
Note:
1) Harsh or threatening words generally are not sufficient to establish a prima facie case of assault, unless they are accompanied by an act of the Defendant.
2) The threat must be of an immediate harm to the Plaintiff.
3) The Plaintiff’s apprehension is judged by a reasonable person standard.
4) Apprehension will be established if the Plaintiff expected or anticipated imminent harmful or offensive contact.
INTENTIONAL TORTS:
BATTERY
(Define & State the Rule)
Define: Battery occurs when a person intentionally causes a harmful or offensive contact with the person of another.
Rule: To establish a Defendant’s liability for battery, the Plaintiff must prove:
1) The Defendant acted voluntarily,
2) The Defendant intended to make contact with the victim’s person, AND
3) The Defendant’s act caused a harmful or offensive contact with the Plaintiffs person to occur.
Note:
1) The Plaintiff does not have to prove that the Defendant intended to harm or offend her, only that he intended to make the contact.
2) Whether an act is harmful or offensive is judged by a reasonable, non-hypersensitive person standard.
3) The contact may be direct or indirect, and may be with the person of the plaintiff or anything connected to the plaintiff.
4) The plaintiff does not have to be aware of the battery at the time it occurred.
INTENTIONAL TORTS:
FALSE IMPRISONMENT
(Define & State the Rule)
Definition: False imprisonment is the intentional confining of another.
Rule: To establish a Defendant’s liability for false imprisonment, the Plaintiff must prove:
1) The Defendant acted voluntarily,
2) The Defendant intended to confine the Plaintiff to a bounded area, AND
3) The Plaintiff was actually confined with no known reasonable means of escape.
Note:
1) A split of authority exists over whether the plaintiff must be aware of the confinement:
a) Common Law: The Plaintiff must be conscious of being confined.
b) Modern Trend: The Plaintiff must be conscious of being confined or harmed by the confinement.
2) Known reasonable means of escape are those that would not be physically or mentally harmful to the Plaintiff or his property or threaten the safety of another.
3) The Defendant may restrain the Plaintiff by a physical act, or by threats of harm to the Plaintiff, the Plaintiffs property, or third parties.
INTENTIONAL TORTS:
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
(Define & State the Rule)
Definition: Intentionally or recklessly causing another to feel extreme mental or emotional distress, torment, or discomfort.
Rule: To establish a Defendant’s liability for MED. the Plaintiff must prove:
1) The Defendant intentionally or recklessly engaged in extreme or outrageous conduct,
2) The Defendant’s conduct would cause a reasonable person extreme emotional or mental distress, AND
3) The Plaintiff actually suffered extreme mental or emotional distress (i.e., damages).
Note:
1) Extreme and outrageous conduct is conduct that goes beyond the bounds of decency and would not be tolerated in a civilized society.
2) Insulting words generally are not sufficient to establish IIED.
3) In the case of a hypersensitive Plaintiff, it is sufficient that the Defendant’s conduct would cause a hypersensitive person extreme emotional or mental distress if the Defendant was or should have been aware ofthe hypersensitivity.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
COMMON CARRIERS AND INNKEEPERS
(State the Rule)
Rule: Common carriers or innkeepers are held to a higher standard than the average person and will be held liable for intentionally directing insults toward patrons or customers if the language used causes the patron or customer emotional distress.
**Note: **
1) The Plaintiff must be a patron or customer ofthe common carrier or innkeeper.
2) The Plaintiff does not have to show extreme emotional distress to recover. Slight emotional distress will suffice.
3) The common carrier or innkeeper will be held liable for an employee’s insulting activity.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
DEFENDANT’S LIABILITY TO THIRD PARTIES
(State the Rule)
Rule: To establish a Defendant’s liability for MED. a third-party Plaintiff must prove:
1) The Defendant intentionally or recklessly engaged in extreme or outrageous conduct toward a third party in the Plaintiffs presence,
2) The third party is a close relative of the Plaintiff,
3) The Defendant knew ofthe Plaintiffs presence and the Plaintiffs relationship to the third party,
4) The Defendant’s conduct would cause a reasonable person in the Plaintiffs position extreme emotional or mental distress, AND
5) The Plaintiff actually suffered extreme mental or emotional distress.
INTENTIONAL TORTS:
LIST 3 INTENTIONAL TORTS TO PROPERTY
1) Trespass to Land
2) Trespass to Chattel
3) Conversion
Note: Trespass to land applies to real property. Trespass to chattel and conversion apply to personal property.
TRESPASS TO LAND
(Define & State the Rule)
Definition: Trespass to land is an intentional physical invasion on the property of another without permission or the right to enter.
Rule: To establish a Defendant’s liability for trespass to land, the Plaintiff must prove that the Defendant, without permission or right:
1) Intentionally entered or remained on the land of another, OR
2) Intentionally caused an object or person to enter or remain on the land of another.
Note:
1) The Plaintiff need only establish that the Defendant intended to enter, or cause another person or thing to enter, the Plaintiffs property.
2) Owners and possessors of land have standing to raise a trespass claim.
3) A trespass may occur above or below land.
4) At common law, only intrusion of tangible items or persons are recognized as actionable. Modernly, most jurisdictions recognize actions in trespass for intrusion of particles or gasses.
TRESPASS TO CHATTEL
(Define & State the Rule)
Definition: Trespass to chattel occurs when a person intentionally interferes with another’s right of use or possession of personal property.
Rule: To establish a Defendant’s liability for trespass to chattel, the Plaintiff must prove:
1) The Defendant acted intentionally to damage ortake possession of the chattel. AND
2) The Plaintiffs right of use or possession was actually interfered with (i.e., damages).
Note:
1) The Plaintiff need not demonstrate that the Defendant intended to interfere with the Plaintiff’s right of use or possession. Only the Defendant’s intent to commit the act (damaging or possessing the chattel) is required.
2) The length of time that the Plaintiff’s right of use or possession was interrupted is not relevant to establishing the Defendant’s liability (i.e., the Defendant’s possession of the Plaintiff’s chattel for a brief period will suffice), though the amount of time the Defendant interfered with the Plaintiff’s right is relevant to determining the amount of damages the Defendant will owe for the trespass.
CONVERSION
(Define & State the Rule)
Definition: Conversion occurs when a person intentionally and substantially interferes with another’s right of use or possession of personal property.
Rule: To establish a Defendant’s liability for conversion, the Plaintiff must prove:
1) The Defendant intentionally acted to substantially damage, alter, transfer, or withhold (for a substantial period of time) the Plaintiff’s chattel, AND
2) The Plaintiffs right of use or possession was actually and substantially interfered with (i.e., damages).
Note:
1) If found liable, the Defendant will be liable for the full value of the chattel, measured at the time of conversion.
2) The Defendant’s mistake as to who rightfully owns or possesses the chattel is not a defense.
LIST 7 DEFENSES AVAILABLE TO A DEFENDANT ACCUSED OF AN INTENTIONAL TORT
1) Arrest Privilege
2) Consent
3) Defense of Self (Self-Defense)
4) Defense of Others
5) Defense or Recapture of Chattel
6) Necessity
7) Shopkeeper’s Privilege
INTENTIONAL TORT DEFENSES:
ARREST PRIVILEGE
(State the Rule)
Rule: Depending upon the status of the person and the circumstances, an individual may be privileged to use a reasonable amount of force to carry out a warrantless arrest. Whether the privilege is available depends on:
1) Whether the individual carrying out the arrest is a police officer or private citizen,
2) Whether the suspected crime is a felony or a misdemeanor, AND
3) Whether the crime is in progress or has already been committed.
ARREST PRIVILEGE:
FELONY ARREST
(State the Rule)
Rule 1: Police officers and private citizens are privileged to carry out an arrest without a warrant for a felony if:
1) The arrestor reasonably believed the arrestee was committing or was about to commit a felony, AND
2) The felony is or is about to be committed in the arrestor’s presence.
Rule 2: Police officers, but not private citizens, are privileged to carry out a warrantless arrest for a felony that has been completed if the officer reasonably believes that:
1) A crime has been committed, AND
2) The arrestee committed the crime.
Note: The privilege applies even if the officer is mistaken in his belief that a crime has been committed or that he has the right person, so long as the belief is reasonable.
Rule 3: A private citizen is privileged to make an arrest for a felony that has already been completed only if:
1) The citizen reasonably believes that a crime has been committed, AND
2) A felony has actually been committed.
Note: The privilege applies if a citizen is mistaken in his belief that he has the correct person, but does not apply if he is mistaken in his belief that a crime was committed.
ARREST PRIVILEGE:
MISDEMEANOR ARREST
(State the Rule)
Rule: Police officers and private citizens are privileged to carry out a warrantless arrest for a misdemeanor if the misdemeanor is a breach of the peace and:
1) The crime occurred or is occurring in the arrestor’s presence. OR
2) If the crime was completed, the arrestor carried out the arrest in the immediate aftermath ofthe crime.
ARREST PRIVILEGE:
WHAT LEVEL OF FORCE MAY BE USED TO CARRY OUT AN ARREST?
Misdemeanor Arrest: A police officer or private citizen is privileged to use reasonable non-deadly force to carry out a misdemeanor arrest. Deadly force is not allowed.
Felony Arrest:
1) If the arrest is carried out to prevent or interrupt a dangerous or violent felony, deadly force may be used if no other option is available to the arrestee.
2) If the arrest is carried out after a felony has been committed:
a) Deadly force may be used by an officer if:
i) The arrestee poses a significant threat of death or serious bodily harm to the officer or others, AND
ii) The use of deadly force is reasonably necessary to prevent the arrestee from fleeing or harming others.
b) Deadly force may be used by a private citizen only if:
i) The person upon whom deadly force was used actually committed a violent or dangerous felony, AND
ii) Deadly force was reasonably necessary to prevent the arrestee from fleeing or harming others.
INTENTIONAL TORT DEFENSES:
CONSENT
(State the Rule)
Rule: If the Plaintiff consented to the Defendant’s conduct, an action that would otherwise constitute an intentional tort will be privileged. Consent may be either express or implied.
Express Consent: A person manifests express consent through verbal or physical communications that convey explicit consent to the challenged conduct.
Note: Courts apply an objective standard to determine whether consent was expressly manifested.
Implied Consent: Implied consent can be found in two ways:
1) Consent may be implied from the Plaintiffs conduct in the context of the surrounding circumstances (e.g., boxer entering the boxing ring), OR
2) Consent may be implied by law (e.g., mouth-to-mouth resuscitation of an unconscious person).
CONSENT:
LIST 5 METHODS BY WHICH CONSENT MAY BE INVALIDATED
1) Duress
2) Fraud or Mistake
3) Illegality
4) Incapacity
5) Going Beyond the Scope
INVALIDATING CONSENT:
DURESS
(State the Rule)
Rule: Consent is not a defense if it was obtained by threat of imminent use of physical force.
Note: Threats of economic harm generally do not constitute duress and will not negate the Plaintiff’s consent.
INVALIDATING CONSENT:
FRAUD OR MISTAKE
(State the Rule)
Rule: Consent will be invalid if:
1) The Plaintiffs consent was obtained through the Defendant’s fraudulent misrepresentation of a matter central to the interaction between the Plaintiff and Defendant, OR
2) The Defendant knew that the Plaintiffs consent was based on a mistaken belief as to a central matter and did not correct that belief.
a) Note: Consent will be invalidated only if the Defendant actually knew of the Plaintiffs mistaken belief. Whether the Defendant should have known of the mistake is irrelevant.
INVALIDATING CONSENT:
ILLEGALITY
(State the Rule)
Majority Rule: Consent by the Plaintiff to an intentional tort that amounts to a criminal act is not valid and will not relieve the Defendant of civil liability.
Minority Rule: Consent by the victim to a criminal act that also constitutes an intentional tort is valid for purposes of relieving the Defendant of civil liability unless the Plaintiff is a member of a class the criminal statute was intended to protect.
INVALIDATING CONSENT:
INCAPACITY
(State the Rule)
Rule: Consent is not valid if the Plaintiff lacks the capacity to consent. A Plaintiff is held to lack the capacity to consent if the Plaintiff is:
1) A child,
a) Note: The age of capacity for consent purposes depends upon the circumstances. A good rule of thumb is the more serious the harm, the older the child must be to give valid consent.
2) Mentally deficient or insane,
3) Intoxicated, OR
4) Unconscious.
a) Note: An exception to this rule exists for unconscious victims in an emergency situation where immediate action is necessary to save an individual’s life.
INVALIDATING CONSENT:
OVERSTEPPING THE BOUNDS OF CONSENT
(State the Rule)
Rule: Consent will be invalid if the Defendant’s act exceeds the bounds of consent granted by the Plaintiff.
INTENTIONAL TORT DEFENSES:
SELF-DEFENSE
(State the Rule)
Rule: A Defendant may justifiably commit what would otherwise be an intentional tort if:
1) The Defendant reasonably believed force was necessary to protect himself from immediate harm, AND
2) The force used to protect himself was reasonable.
Note:
1) Self-defense is available only if the Defendant believes he is threatened with immediate harm.
2) The Defendant may rely on the defense even if he was mistaken in his belief that he was in immediate danger, so long as his beliefwas reasonable.
3) Use of deadly force is reasonable only if the Defendant reasonably believed such force was necessary to avoid death or serious bodily harm.
SELF-DEFENSE:
DUTY TO RETREAT
(State the Rule)
Majority Rule: There is no duty to retreat before using reasonable non-deadly or deadly force in one’s own
self-defense.
Minority Rule: There is a duty to retreat before using deadly force if:
1) The self-defender is not in his own home. AND
2) Retreat may be carried out safely.
INTENTIONAL TORT DEFENSES:
DEFENSE OF OTHERS
(State the Rule)
Rule: A Defendant is justified in using reasonable force to protect a third party from immediate harm if the Defendant reasonably believed that the third party would be justified in using reasonable force in her own defense. A split of authority exists as to the effect of a Defendant’s mistake:
1) Common Law: If the third party did not have a right to use force in her own defense, then defense-of-others will not protect the Defendant from civil liability, regardless ofthe reasonableness of the Defendant’s belief.
2) Modern Approach: If the third party did not have a right to self-defense, a Defendant is justified in using force to protect the third party if the Defendant’s mistake as to the third party’s right to defend herself was reasonable.
Note: The Defendant may only use the amount of force that the person being aided would be justified in using.
INTENTIONAL TORT DEFENSES:
DEFENSE OF PROPERTY
(State the Rule)
Rule: A Defendant is justified in using reasonable, non-deadly force to protect her property or chattel.
Note:
1) Deadly force can never be used in defense of property.
2) Non-deadly force is unreasonable if a verbal warning or demand would adequately protect the property.
3) Defense-of-property will not protect the Defendant’s actions if the Plaintiff has a privilege to commit the tort against which the Defendant is defending (e.g., Plaintiff entering Defendant’s land to recapture wrongfully taken chattel).
4) The Defendant must be correct in her belief that the Plaintiff is committing or is attempting to commit a tort against the Defendant’s property.
DEFENSE OF PROPERTY:
FORCE IN THE RECOVERY OF CHATTEL
(State the Rule)
Rule: A Defendant is justified in using reasonable, non-deadly force to recover chattel wrongfully taken if:
1) The Defendant is acting in the immediate aftermath of the item having been taken (i.e., hot pursuit), AND
2) The Plaintiff has no right to possess the chattel.
Note: The reasonableness of Defendant’s belief will not protect his acts if he is mistaken in his belief that the Plaintiff has no right to possess the chattel.
DEFENSE OF PROPERTY:
ENTRY ONTO LAND
(State the Rule)
Rule: A Defendant is justified in using reasonable, non-deadly force to enter the land of another to recapture chattel if:
1) The entry is carried out at a reasonable time and in a reasonable manner, AND
2) The Defendant is not to blame for the chattel being on the other’s land.
Note: Whether the Defendant will be liable for damage caused depends upon the status ofthe landowner:
1) If the landowner is a wrongdoer (i.e., responsible for taking the Defendant’s property or permitted wrongfully taken chattel to be kept on her land), the Defendant is not liable for damage caused in entering the land and recapturing the chattel.
2) If the landowner is not a wrongdoer, the Defendant retains the privilege to enter the land, but is responsible for any damage caused in entering the land and recapturing the chattel.
DEFENSE OF PROPERTY:
DEFENSE OF HOME
(State the Rule)
Common Law: A Defendant is justified in using deadly force to prevent another from breaking into the Defendant’s home.
Modern Trend: Deadly force is not justified unless the Defendant reasonably believes the life or physical safety of an occupant is threatened by the intruder.
INTENTIONAL TORT DEFENSES:
NECESSITY PRIVILEGE
(Define)
Definition: A Defendant is privileged to engage in activity
that would otherwise constitute an intentional tort when such actions are reasonably necessary to avoid a greater harm to herself or to society. The privilege may be based on public or private necessity.
NECESSITY:
PUBLIC NECESSITY
(State the Rule)
Rule: A Defendant may commit an act that would otherwise constitute an intentional tort if doing so was necessary to protect the safety or interests of the public or a significant group of people.
Note:
1) Generally, the Defendant must establish that the harm caused by his intentional act was less than the harm which he sought to avoid.
2) Public necessity is a complete defense, and the Defendant will not be liable for damages caused by the activity.
NECESSITY:
PRIVATE NECESSITY
(State the Rule)
Rule: A Defendant may commit an act that would otherwise constitute an intentional tort if:
1) Committing the tort was necessary to protect the Defendant’s own safety or property, AND
2) The interest protected was greater than the injury caused by the Defendant’s act.
Note: Private necessity is an incomplete defense. Though the Defendant’s acts are privileged, he will be liable for any damage caused by his activity.
INTENTIONAL TORT DEFENSES:
SHOPKEEPER’S PRIVILEGE
(State the Rule)
Rule: A Plaintiff will not succeed in an action for false imprisonment against a shopkeeper if:
1) The shopkeeper reasonably believed a theft occurred, AND
2) The Plaintiff was detained in a reasonable manner and for a reasonable time.
Note: A reasonable time and manner is that which is reasonably necessary to investigate whether the Plaintiff committed a theft.
NEGLIGENCE
(Define & State the Rule)
Definition: Negligence occurs when the Defendant acts in a manner that falls below a legally required standard of care and causes injury to another’s person or property.
Rule: To establish a Defendant’s liability for negligence, the Plaintiff must prove:
1) A duty that requires the Defendant to avoid acting in a manner that would create an unreasonable risk of injury to others,
2) The Defendant breached that duty,
3) The Defendant’s breach was the actual and proximate cause of the Plaintiffs injury, AND
4) The Plaintiff suffered actual harm.
Note: Unlike most intentional torts, negligence actions require that the Plaintiff demonstrate actual harm (i.e., nominal damages are not available in negligence).
NEGLIGENCE:
DUTY OF CARE
(Define)
Definition: A duty of care is a legally enforceable obligation that requires an individual to exercise reasonable care in the conduct of his activities so as to avoid creating an unreasonable risk of harm to others.
Rule: A Defendant generally is held to the standard of care of a reasonable person, and is expected to exercise the caution of a prudent person in similar circumstances.
Note: In determining whether the Defendant met the standard of care of a reasonable person in similar
circumstances:
1) The fact-finder cannot consider the Defendant’s mental condition or inexperience, BUT
2) The fact-finder can consider the Defendant’s physical characteristics.
NEGLIGENCE-DUTY:
WHAT IS THE ROLE OF CUSTOM OR USAGE IN DETERMINING THE APPROPRIATE STANDARD OF CARE?
(Define & State the Rule)
Definition: Custom or usage refers to well-established industry practices (custom) and common uses of products (usage).
Rule: Evidence of industry custom or common product usage may be offered to establish the standard of care to which a person will be held.
Note: Though violation of custom or usage can be introduced as evidence ofthe Defendant’s breach of duty, proof that the Defendant followed industry custom is not necessarily determinative.
NEGLIGENCE-DUTY:
TO WHAT STANDARD OF CARE ARE PROFESSIONALS HELD?
Rule: Professionals are expected to adhere to the standard of care of a trained professional in their field.
Note: If accused of professional negligence, proof by the Defendant that she adhered to the industry custom of her profession conclusively establishes that the Defendant acted reasonably and. thus, did not violate her duty of care.
NEGLIGENCE-DUTY:
WHAT DUTIES DO DOCTORS OWE THEIR PATIENTS?
Rule: Doctors have a duty to disclose information about the patient’s treatment and obtain the patient’s informed consent before performing medical procedures on the patient’s body.
Note: A split of authority exists as to how much information the doctor must provide:
1) Physician Rule: In jurisdictions that apply the Physician Rule, a doctor’s duty to disclose is determined by the level of disclosure customarily provided to patients by other doctors in the field. The level of disclosure customarily provided by other doctors in the field is determined through expert testimony.
2) Reasonable Patient Rule: Under the Reasonable Patient Rule, a doctor’s duty to inform is measured by what a reasonable patient would need to know in order to make an informed and intelligent decision about the proposed treatment.
NEGLIGENCE-DUTY:
TO WHAT STANDARD OF CARE ARE CHILDREN HELD?
Rule: Children are held to the standard of care of a reasonably prudent child of the same age, experience and intelligence.
Note:
1) Whether a child has capacity to be negligent depends on the jurisdiction:
a) Traditional View: Children under the age of 7 were irrebuttably presumed incapable of negligence.
b) Modern Approach: Children under the age of four or five, depending on the jurisdiction, are generally presumed incapable of negligence.
2) Children engaged in potentially risky conduct that is considered an adult activity generally are held to the standard of care of a reasonable adult engaged in that activity.
NEGLIGENCE -
DUTY:
TO WHOM DOES A PERSON OWE A DUTY OF DUE CARE?
Rule: A Defendant owes a duty to protect foreseeable victims against foreseeable risks of harm. Whether a victim is foreseeable depends upon the test applied in the jurisdiction:
Majority Rule (Zone of Danger Test): A duty of care is owed only to people who could foreseeably be harmed by the Defendant’s conduct (i.e., people who are within the zone of danger created by Defendant’s conduct).
Minority Rule (Whole World Test): A duty of care is owed to everyone (in the whole world) to avoid engaging in unreasonable conduct. Thus, any person harmed by the conduct is a foreseeable victim.
NEGLIGENCE -
DUTY:
WHAT DUTIES ARE OWED BY AN OWNER OR POSSESSOR OF LAND TO THOSE WHO ARE NOT ON THE LAND?
**Natural Conditions **
Common Law: At common law, land owners/possessors owe no duty to those outside ofthe property to protect against harm caused by natural conditions on the property.
Modern Trend: Landowners/possessors (predominantly in cities and the suburbs) must exercise reasonable care to inspect the property and protect those outside of the property from natural conditions on the property (e.g., falling trees or tree limbs).
Artificial Conditions
Rule: Landowners/possessors have a duty to reasonably protect those outside of the property from harm caused by artificial conditions on the property.
Possessor’s Activities
Rule: Landowners/possessors have a duty to exercise reasonable care when carrying out activities on their property to protect against an unreasonable risk of harm to others outside the property.
NEGLIGENCE-DUTY:
WHAT DUTIES ARE OWED BY AN OWNER OR POSSESSOR OF LAND TO THOSE WHO ARE ON THE LAND?
Rule: At common law, the duty owed by a possessor of land depends upon the status of the person who entered the land. Three categories of entrants are recognized:
1) Trespassers
2) Licensees
3) Invitees
Note: Though both owners and possessors of land may be held liable for injury caused to others on their property, in most cases the possessor of the land will be held primarily responsible, and the owner of the land will be held secondarily responsible.
NEGLIGENCE-DUTY:
TRESPASSERS
(Define & State the Rule)
Definition: A trespasser is a person who enters or remains on the land of another without right or permission.
Rule: The duty owed to a trespasser depends upon whether theowner/possessor knows of the trespasser’s presence:
1) Unknown Trespassers: A landowner/possessor generally owes no duty to unknown trespassers, but must not intentionally create harmful or artificial conditions for the purpose of injuring potential trespassers on the property.
2) Known Trespassers: A landowner/possessor who knows, expects, or should know of a trespasser’s presence has a duty to:
a) Warn the trespasser of any hidden or inconspicuous artificial conditions that could cause death or serious bodily harm to the trespasser, AND
b) Exercise reasonable caution when carrying out activities on the property.
Note: The landowner/possessor does not owe a duty to warn known trespassers of obvious conditions or conditions that the trespasser should reasonably discover.
NEGLIGENCE -
DUTY:
TRESPASSING CHILDREN
(ATTRACTIVE NUISANCE DOCTRINE)
(State the Rule)
Rule: To establish a Defendant’s liability under the Attractive Nuisance Doctrine, the Plaintiff must prove:
1) The hazardous object or artificial condition is located in an area the landowner/possessor knows or should know that children are likely to trespass,
2) The owner/possessor knows or should know that the object or condition presents an unreasonable risk of death or serious bodily harm to trespassing children,
3) The children, due to their youth, will not appreciate the risk presented by the object or condition, AND
4) The risk to the children outweighs the utility to the owner/possessor of maintaining the condition and the burden of removing the danger.
**Note: **
1) In cases where it is not possible to remove the dangerous object or artificial condition, the owner/possessor may erect barriers to prevent children’s access.
2) At common law, the Plaintiff must show that it was the hazardous condition itself that drew the child to the land. Modernly, most courts only require that injury to child trespassers was foreseeable.
NEGLIGENCE-DUTY:
LICENSEES
(Define & State the Rule)
Definition: A licensee is a person who enters or is present on the land of another with the permission ofthe owner or possessor, but for the licensee’s sole benefit, interest, convenience or gratification.
Rule: To licensees, a landowner/possessor owes a duty only to warn of hidden dangers on the property of which the owner/possessor knows or should know.
Note: There is no duty to inspect the land for dangers or to make repairs.
NEGLIGENCE-DUTY:
INVITEES
(Define & State the Rule)
Business Invitees: Business invitees are those who enter land at the express or implied invitation ofthe owner or possessor of the land for the purpose of engaging in a business transaction or otherwise benefiting the owner or possessor.
Public Invitees: Public invitees are those who enter land or property that is held open to the public.
Rule: To invitees, a landowner/possessor owes a duty to:
1) Maintain the property in a safe condition, AND
2) Conduct a reasonable inspection of the property to detect hidden dangers. If a hazardous condition is found, the possessor must:
a) Fix, repair, or remove the hazardous condition, OR
b) Warn the invitee of the condition (if it is impossible to fix, repair, or remove).
Note: Landowners/possessors also owe a duty to rescue invitees who become endangered while on the property as invitees.
NEGLIGENCE-DUTY:
WHAT DUTIES ARE OWED BY A LANDLORD WHO RENTS PROPERTY TO A TENANT?
Common Law: At common law, a landlord is not held liable for failing to inspect for, warn, or repair dangerous conditions on the property that existed before or that arose after the tenant took possession.
Modern Approach: A landlord has a duty to:
1) Use reasonable care to make common areas safe,
2) Repair or warn of known dangers of which the tenant is unaware, AND
3) Exercise reasonable care in making and completing repairs.
Note: Landlords generally do not have a duty to inspect unless the landlord knows or should know the rented property will be held open to the public, in which case the landlord has a duty to inspect for and repair hazardous conditions before the tenant comes into possession of the property.
NEGLIGENCE-DUTY:
AFFIRMATIVE DUTIES TO ACT
(State the Rule)
Rule: Generally, no affirmative duty to assist, rescue, intervene on behalf of, or come to the aid of another exists in tort law.
Exception: An affirmative duty to rescue is recognized where:
1) The Defendant created the situation that imperiled the victim,
2) The Defendant and the victim have a special relationship, and the risk to the victim arises within the scope of that relationship, AND/OR
3) The Defendant has voluntarily assumed the duty by beginning to assist a person in peril,
a) Note: Once the Defendant has begun to assist, she must do so with reasonable care and she must continue to assist if stopping would leave the victim worse off than before the Defendant rendered assistance.
NEGLIGENCE - DUTY:
LIST 6 SPECIAL RELATIONSHIPS THAT GIVE RISE TO AN AFFIRMATIVE DUTY TO RESCUE
1) Common Carrier and Passengers
2) Innkeeper and Guests
3) Landlord and Tenants
4) Employer and Employees
5) Business and Patrons
6) School and Students
NEGLIGENCE - DUTY:
WHEN WILL AN AFFIRMATIVE DUTY TO CONTROL THE ACTIONS OF ANOTHER ARISE?
Rule: An affirmative duty may be imposed on the Defendant to control the actions of a third party if a special relationship exists between the Defendant and the third party justifying imposition of the duty. To establish a Defendant’s duty to control, the Plaintiff must prove:
- The Defendant had the actual ability and authority to control the third party’s actions,
- The Defendant knew or should have known the third party was likely to commit acts that would require exercise of such control, AND
- A relationship exists between the Defendant and the third party that justifies imposing the duty on the Defendant (e.g., parent/child).
Note: In cases where the Defendant was aware of the likelihood that a third party would commit a harmful act, but does not have authority to control the third party, an affirmative duty to warn the intended victim may exist if the relationship justifies the imposition ofthe duty (e.g., psychotherapist/patient).
NEGLIGENCE:
BREACH
(Define & State the Rule)
Definition: Breach occurs when the Defendant fails to meet the required standard of care by acting unreasonably.
Rule: To establish the element of breach, the Plaintiff must show that the Defendant:
1) Failed to use reasonable care under the circumstances,
2) Failed to meet a specific standard of care (custom or special relationship),
3) Violated a statute (negligence per se), OR
4) Was in control of a situation in which the Plaintiff was injured, and no other person could have caused the harm (res ipsa loquitor).
Note: Because breach is determined according to the reasonableness of the Defendant’s actions, it is in most cases a question for the fact-finder to determine.
NEGLIGENCE - BREACH:
HOW DOES THE JURY DETERMINE WHETHER A DEFENDANT’S ACTIONS WERE UNREASONABLE?
Rule: To determine whether a Defendant’s conduct was unreasonable, the burden of avoiding the harm is balanced against the likelihood and magnitude of the harm.
Note: This comes from the Hand Formula, which finds negligence when the Defendant’s burden of taking reasonable measures to avoid causing the harm (B) is less than the probability of the harm occurring (P), multiplied by the magnitude of the loss if the harm occurs (L). If B < P x L, then the Defendant acted unreasonably.
NEGLIGENCE - BREACH:
CUSTOM OR USAGE
(State the Rule)
Rule: The role of custom or usage in establishing breach depends on whether the evidence offered demonstrates that the Defendant’s actions conformed with or deviated from customary practices of an industry:
1) Nonconforming Acts: Proof that the Defendant failed to conform with industry practices is strong (though not conclusive) evidence that the Defendant failed to act with reasonable care and, therefore, breached her duty to the Plaintiff.
2) Conforming Acts: Proof that the Defendant conformed with industry practices can be offered as evidence that the Defendant acted in a reasonable manner and, therefore, did not breach her duty to the Plaintiff. However, if the industry custom itself is determined to be unreasonable, the Defendant’s conformance with the custom will not protect the Defendant from liability.
NEGLIGENCE - BREACH:
NEGLIGENCE PER SE
(Define & State the Rule)
Definition: Negligence per se is the use of the Defendant’s violation of a criminal statute to establish that the Defendant owed a duty to the Plaintiff and that the Defendant breached that duty.
Rule: The Defendant’s violation of a criminal statute may be used to establish the Defendant’s breach of a duty of due care if:
1) The statute clearly defines the conduct that will result in a criminal violation,
2) The harm suffered by the Plaintiff is the type the statute was designed to prevent, AND
3) The Plaintiff is within the class of persons the statute was designed to protect.
Note:
1) While violation of the statute conclusively establishes the Defendant’s duty and the Defendant’s breach of that duty, a Defendant’s proffer of evidence that he complied with a statute is accepted only as relevant evidence of the Defendant’s reasonable behavior.
2) In a jury trial, the judge and jury have complementary roles in determining whether negligence per se will establish the Defendant’s duty and breach:
a) The judge determines, as a matter of law, whether the three elements of negligence per se have been established.
b) The jury determines whether the Defendant violated the criminal statute.
NEGLIGENCE - BREACH:
RES IPSA LOQUITOR
(Define & State the Rule)
Definition: The doctrine of res ipsa loquitor allows the Plaintiff to establish that the Defendant breached a duty of due care in situations where the Plaintiff was injured as the result of an accident that usually would not occur but for someone’s negligence, but no direct evidence of the Defendant’s unreasonable conduct (i.e., breach) is available.
Rule: The Plaintiff can raise an inference of Defendant’s breach of duty of due care through res ipsa loquitor by proving:
1) The harm would not normally occur without someone’s negligence,
2) The instrumentality of the harm was under the exclusive control of the Defendant at the time the harm occurred, AND
3) The Plaintiff did not negligently or voluntarily contribute to the harm.
Note: Res ipsa loquitor gives rise to an inference of breach. Thus, the fact-finder may, but is not required to, find breach occurred if the above elements are met.
NEGLIGENCE:
WHAT MUST THE PLAINTIFF PROVE TO ESTABLISH CAUSATION?
1) Actual Causation (Cause-in-Fact), AND
2) Legal Causation (Proximate Cause).
NEGLIGENCE - CAUSATION:
ACTUAL CAUSATION
(CAUSE-IN-FACT)
(Define & State the Rule)
Definition: Cause-in-fact, or actual causation, simply means that the Defendant’s act was the actual cause of the harm caused to the Plaintiff.
Rule: Actual causation may be established in any of three ways:
1) But For Test: The Plaintiff must prove that but for the Defendant’s conductor activity, the Plaintiff would not have
suffered an injury.
2) Substantial Factor Test: In a situation where the harm was caused by two or more forces, the Plaintiff must establish that the Defendant’s conduct was a substantial factor in causing the harm and, if carried out independently of the other acts, was sufficient to cause the harm.
3) Shifting the Burden Approach: When more than one Defendant breached a duty, but only one caused the harm to the Plaintiff and it is unclear which Defendant’s acts caused the harm, the Plaintiff may offer proof that each Defendant breached a duty of care, which will shift the burden to the Defendants to prove that his/her negligent act was not the cause of the harm.
NEGLIGENCE - CAUSATION:
LEGAL CAUSATION
(PROXIMATE CAUSE)
(Define & State the Rule)
Definition: Proximate cause is the requirement that the causal relationship between the Defendants act and the Plaintiffs injury be strong enough that holding the Defendant responsible for the harm does not violate the principles of fairness.
Rule (Foreseeable Harm Test): To establish proximate cause, the Plaintiff must prove:
1) The harm was a reasonably foreseeable result ofthe Defendant’s activity, AND
2) The Defendant s act was not superseded by an intervening force.
