Torts MEE Flashcards
Who is owed a duty?
All forseeable Ps.
Who is owed a duty under the majority view (Cardozo)
Ps within zone of foreseeable harm
Who is owed a duty under the minority view (Andrews)
anyone who is harmed
Affirmative duty to act
Generally, there’s no affirmative duty to aid or rescue someone.
Assumption of duty
if someone starts to aid or rescue, must act with reasonable ordinary care to not increase the risk of harm
Psychotherapists’ duty to warn
if a patient makes credible threats of physical violence, under a duty to warn intended victim
General standard of care
To act as a reasonably prudent person under the circumstances
Standard of care for possessor of land (modern approach)
must exercise reasonable care under the circumstances to all land entrants, except trespassers
tresspasser
person on the land without consent or permission
Duty to trespassers (traditional approach)
to refrain from willful, wanton, reckless, or intentional misconduct
Duty to invitees (traditional approach)
to inspect and discover unreasonably dangerous conditions and protect invitee from them
invitee
invited as member of public or a business visitor
licensee
enters with express or implied permission for a specific purpose
duty to licensee
to warn of concealed dangers that are known or should be obvious and use reasonable care in conducting activities
Attractive Nuisance
involves injuries to trespassing kids; liable if:
- Artificial condition exists where owner knows/ should know kids are likely to trespass;
- Condition imposes and unreasonable risk of serious bodily injury;
- Kids cannot appreciate danger due to youth;
- Burden of eliminating danger is slight compared with risk of harm; and
- Land possessor failed to exercise reasonable care to protect kids
LL duty to tenants
Protect from foreseeable attacks by third parties
Duties of children
Duty to act as a reasonable child of the same age. If engaged in an adult activity (e.g., driving a car), duty to act as a reasonably prudent
adult
Custom
Evidence of an industry or community custom is admissible as evidence of relevant standard of care. Evidence of custom is not conclusive
Professionals duty
Duty to perform at the same level as another practitioner in the same community
Doctor duty
Duty to perform as an average doctor based on a national standard
Breach
If D fails to meet applicable standard of care
Modern factors for determining breach (CBA):
1) Foreseeability of harm;
2) Severity of harm; and
3) Burden on D to prevent the harm
Res Ipsa Loquitur
Arises if no direct evidence of D’s negligent conduct, lets trier of fact infer negligence
P must prove that:
a) The type of accident would not normally occur absent negligence;
b) Injury was caused by an agent or instrumentality within D’s exclusive control
c) Injury was not due to P’s own actions
Negligence Per se
Arises if statute imposes a specific duty
- P must be within the class of persons the statute is meant to protect
- P must suffer the type of harm the statute was meant to protect against
- D’s violation of the statute must be the proxi cause the Ps’s harm
Actual causation
Plaintiff must show that but-for defendant’s actions plaintiff’s injury would not have
occurred
Substantial factor rule
Arises if multiple causes of the harm and each alone would have been a factual cause of the injury
- Conduct of each D is a cause in fact if it was a substantial cause of the
injury
Alternative Causation
- Arises if P’s harm is caused by multiple defendants (2–5) and each D conduct was individually tortious
- Burden of proof can shift to D to prove each was not cause in fact
Proximate Cause
P must show that the injury was a foreseeable result of the D’s conduct
Intervening Cause
An outside force that contributes to Ps harm after Ds act
- If foreseeable, will NOT cut off D’s liability
- If unforeseeable, it is a superseding cause and cuts off D’s liability
Damages
P must prove actual injury, not economic loss
Eggshell skull rule
arises if P has a preexisting condition or vulnerability
D is liable for the full extent of the P’s injuries, even if extent of harm was not foreseeable
Negligent Infliction of Emotional Distress (NIED
P must have been within the zone of danger of the threatened physical impact. Must have some physical manifestation of the emotional distress.
When can a bystander OUTSIDE the zone of danger recover for NIED
If P:
- Is closely related to a person harmed by D’s negligence;
- Was present at scene of injury; AND
- Personally observed the injury
Contributory Negligence (old rule)
If the P’s negligence contributed to his harm, it was a complete bar to recovery.
Comparative Fault (modern rule) two types:
- Pure comparative negligence (minority rule)
- Modified or partial comparative negligence (majority rule)
Modified or partial comparative negligence (majority rule)
P’s recovery is reduced by amount of P’s fault, but P cannot recover if he’s more at fault than the D