Torts - Quiz 2

Question 1

What is the definition of a prima facie tort?

Answer 1

Any tortious claim that falls outside of a conventional tort where the plaintiff believes there was a civil wrong that ought to impose a legal remedy

Question 2

What are the elements of a prima facie tort?

Answer 2

1. An intentional act by the defendant
2. An intent to cause injury to the plaintiff
3. Injury to the plaintiff
4. Absence of any justification or an insufficient justification for the defendant’s act

Question 3

What is the Missouri law regarding Prima Facie torts?

Answer 3

PF torts are presumed to exist, but the Missouri Supreme Court has not squarely addressed it.

Question 4

What is the essence of a negligence claim?

Answer 4

A failure to exercise reasonable care to avoid causing harm to others

Question 5

What are the elements of negligence?

Answer 5

1. Duty (legal issue)
2. Breach (factual issue)
3. Actual cause
4. Proximate cause
5. Harm

Question 6

What is the general duty or standard of care we all have to those around us?

Answer 6

We all have a duty to act with the care of a reasonable person in those circumstances.

Question 7

What are the situational considerations regarding reasonable care?

Answer 7

1. Was it reasonable to do the activity?

2. was it done in a reasonably careful way?

Question 8

What does it mean that reasonable care is on a spectrum?

Answer 8

Actions with elevated risk carry an expectation that a reasonable person will act with care that is equivalent to the risk of the actor, but this does not mean that there is generally a separate higher standard of care for such actions.

Question 9

What is the reasonable person standard?

Answer 9

An individual must act with reasonable care under the circumstances

Question 10

What factors may alter the burden of liability in a negligence claim?

Answer 10

1. Age
2. Age in relation to the risk of the action
3. Physical Disabilities
4. Mental disabiliities
5. Sudden catastrophic mental issue
6. Higher than average abilities
7. Emergency situation
8. Intoxication

Question 11

How does age affect a negligence claim?

Answer 11

The standard of care for children is that of a child of the same age, intelligence, and experience in that same situation. However, when a child is engaged in an activity normally reserved for adults, they are expected to act with the adult standard of care. Often the standard of care changes to the adult standard between 16-18, in some places it is statutorily defined.

Question 12

How does Missouri approach children age requirements in negligence claims?

Answer 12

Missouri does not recognize a specific age at which a child is no longer subject to the child standard of care. It is a case by case determination.

Question 13

How do physical disabilities affect the standard of care in a negligence claim?

Answer 13

A person with a physical disability is expected to act with the reasonable care of a person in the same situation with their same disability. Missouri has not ruled on this issue but there is no reason to think it would deviate from the majority view.

Question 14

How do mental disabilities affect the standard of care in a negligence claim?

Answer 14

A person with a mental disability is expected to conform to the conduct of a reasonable person without that mental disability.

Question 15

How does a sudden catastrophic mental issue affect liability in a negligence claim?

Answer 15

One court has found that a lower standard of care should be used for someone experiencing a sudden mental break.

Question 16

How do a person’s above-average abilities affect liability for a negligence claim?

Answer 16

A person of elevated ability or intelligence is required to exercise a level of care commensurate with their intelligence or abilities

Question 17

How does an emergency affect liability for a negligence claim?

Answer 17

Some jurisdictions allow for an altered expectation of care in light of emergency circumstances. Missouri does not include a jury instruction for this.

Question 18

How does intoxication affect liability for a negligence claim?

Answer 18

Voluntary intoxication is treated as a mental disorder that does not affect the reasonable care standard. Involuntary intoxication is treated like a physical disorder and adjusts the reasonable care to that of a person in the same situation under the same circumstances.

Question 19

Under Missouri law, what is the standard of care for all drivers?

Answer 19

“Every driver of a vehicle shall exercise the highest degree of care to avoid colliding with any pedestrian.” Mo. Rev. Stat. § 300.410.

Question 20

What is the nonfeasance rule?

Answer 20

You generally do not have to act to save another person or be a Good Samaritan, unless you fall within an exception

Question 21

What type of negative actions are considered in assessing duty?

Answer 21

1. Malfeasance - unlawful or intentional wrongful act
2. Misfeasance - doing a legitimate act in a wrongful way
3. Nonfeasance - failure to act

Question 22

What are the specific situations where a duty arises?

Answer 22

1. Creation of risk or harm
2. Assumption of responsibility
3. Contractual obligation
4. Statutory obligation
5. Botched rescue
6. Special relationship

Question 23

What are the types of special relationship that create a duty to help or protect others?

Answer 23

• Parent / child
• Custodian / ward
• Employer / employee
• Possessor of land held open to the public / those who lawfully enter
• Common carrier / passenger
• Inkeeper / guest
• Business / customer
• School / student
• Landlord / Tenant

Question 24

What are the types of special relationship that create a duty to control others?

Answer 24

• Parrent/child
• Custodian/ward
• Employer/employee
• Mental health professional/patient

Question 25

What are the approaches used when considering whether a duty has been created by a relationship?

Answer 25

1. Categorical approach
2. Flexible approach
3. Hybrid approach

Question 26

What is the categorical approach (special relationships)?

Answer 26

Duty exists only exist if the relationship falls into one of the categories listed (traditional approach)

Question 27

What is the flexible approach (special relationships)?

Answer 27

Courts consider: 
1. The relationship between the people
2. The foreseeability of the harm
3. The defendants ability to prevent the harm
(Modern approach)

Question 28

What is the hybrid approach (special relationships)?

Answer 28

The court starts with the list where a duty exists but doesn’t limit the expectations to that list

Question 29

How does Missouri determine when a duty arises?

Answer 29

Missouri courts adhere to the general rule that one does not owe a duty to help, protect, or control others, but they recognize exceptions where a “special relationship” or “special facts and circumstances” are present.

1. Special relationship - creates a duty based solely on the positions of and connections between the parties
   OR
2. Special facts and circumstances - considers the foreseeability of the harm based on past incidents and the ability of the defendant to prevent the harm

Question 30

What is premises liability?

Answer 30

Rules that govern when the owner of a property is liable for injuries to people on their property.

Question 31

What are the distinctions of people on one’s premises?

Answer 31

1. Trespassers
2. Licensees
3. Invitees

Question 32

What are trespassers (premises liability)?

Answer 32

All entrants to land are trespassers until the possessor gives them permission to enter

Possessors owe NO duty of care to trespassers.

Question 33

What are licensees (premises liability)?

Answer 33

All persons who enter with permission are licensees until the possessor has an interest in the visit. Social visitors are a subclass of licensees.

The possessor owes a licensee the duty to make safe the dangers of which the possessor is aware.

Question 34

What are invitees (premises liability)?

Answer 34

Once the possessor has a material interest in the visit, the person becomes a visitor at which point the visitor “has reason to believe that the premises have been made safe to receive him”.

Possessors owe the visitor a duty to exercise reasonable care to protect them against both known dangers and those that would be revealed by inspection

Question 35

What is the traditional approach to premise liability?

Answer 35

The traditional approach recognizes and assigns liability according to the distinction between trespassers, licensees, and invitees.

Question 36

What is the modern approach to premise liability?

Answer 36

The modern approach disposes with the distinction between invitees and licensees and holds all possessors to a standard of reasonable care under the circumstances

Question 37

How does Missouri approach premise liability?

Answer 37

Missouri uses the traditional approach by recognizing the difference between invitees and licensees, while allowing for special facts and circumstances

Question 38

How does premise liability affect businesses?

Answer 38

Businesses may have a duty to warn about the risk of crimes or to protect their customers from crimes occurring on the business premises.

Question 39

What are the approaches to premise liability for businesses?

Answer 39

1. Totality of the circumstances
2. Prior similar incidents
3. Balancing
4. Specific harm

Question 40

What is the totality of the circumstances approach (premise liability)?

Answer 40

Ordinary negligence principles apply. Plaintiff must allege and prove facts sufficient to establish that there was a foreseeable risk sufficient to impose a duty on the defendant. Requires no prior danger or known danger to impose a duty if it was or should have been foreseeable.

Question 41

What is the prior similar incidents approach (premise liability)?

Answer 41

A business can’t be liable unless the defendant knew or should have known about specific similar incidents

Question 42

What is the balancing approach (premise liability)?

Answer 42

The burden of showing foreseeability increases with the cost of the precautions that allegedly should have taken place.

Question 43

What is the specific harm approach (premise liability)?

Answer 43

A business only has a duty if it operated in a way that specifically attracted criminals or was aware that a specific imminent harm was about to occur to a customer.

Question 44

How does Missouri approach premise liability for businesses?

Answer 44

Business owners may be under a duty to protect invitees from criminal attacks depending on the facts and circumstances of a given case so long as the danger must be foreseeable.

Question 45

What are the Missouri exceptions where a possessor owes a duty to a trespasser?

Answer 45

1. Where the trespasser’s presence becomes known to the possessor
2. Where the trespass is constant and the possessor has created a condition likely to cause death/injury and the possessor has reason to believe the trespassers won’t discover the dangerous condition.
3. The possessor has created an “attractive nuisance” which creates a duty of care to child trespassers
4. “Hard-by” rule - a duty exists where a possessor creates an artificial condition so close to a public street that it involves an unreasonable risk to children who trespass.

Question 46

What is negligent entrustment?

Answer 46

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Question 47

Does Missouri use the negligent entrustment rule?

Answer 47

Yes, a claim of negligent entrustment may arise any time an individual “supplies” a chattel to another with actual or constructive knowledge that the recipient will likely use the chattel in a manner that results in an unreasonable risk of harm, this includes transfers by “sellers, lessor, donors or lenders.”

Question 48

What is the first responder or fireman’s rule?

Answer 48

An individual won’t be liable if they negligently cause a problem that requires emergency personnel to respond and an emergency responder is injured in the process of responding to that call. Only applies to injuries that occur in an emergency situation. This exception doesn’t apply to negligence that is independent and separate from the negligence that caused the initial emergency

Question 49

Does Missouri apply the first responder’s / firefighters rule?

Answer 49

Yes, a public safety officer is precluded from receiving tort damages for an injury resulting from the negligence for which they are responding to an emergency situation, however claims can arise for negligence that is separate from the cause for the emergency call.

Question 50

What is dram shop liability?

Answer 50

“Dram shop liability” means an alcohol seller could be liable for injuries suffered or inflicted by intoxicated drinkers. The traditional common-law rule was that dram shops are not liable, but some courts in recent decades have departed from that rule and said that liability may be imposed, particularly for selling alcohol to someone who is underage or obviously intoxicated.

Question 51

How does Missouri apply dram shop liability?

Answer 51

Where it is proven by clear and convincing evidence that the seller knew or should have known that alcohol was served to a person who was underage or visibly intoxicated.

Question 52

What is social host liability?

Answer 52

Liability that can arise from providing alcohol in a social setting such as serving drinks to guests at a party. Missouri does not enforce this liability

Question 53

What case did Learned Hand’s formula come from?

Answer 53

US v. Carroll Towing Co (neglectful bargekeeper)

Question 54

What is Learned Hand’s formula?

Answer 54

Liability for negligence arises where the burden of taking precautionary measures is less than the probability of injury multiplied by the gravity of the injury (Burden < (Probability * Loss) = negligence liability)

Question 55

What are the alternative methods of assessing breach of duty?

Answer 55

1. Economic considerations
2. Customs
3. Golden rule
4. Common sense

Question 56

What truth will always be upheld regarding property versus human life?

Answer 56

Human life is always worth more than personal property

Question 57

What is negligent infliction of emotional distress?

Answer 57

Traditionally, recovery based solely on emotional damage was not allowed. Under the modern approach, such claims are permissible.

Question 58

How does Missouri apply the negligent infliction of emotional distress?

Answer 58

Negligent Infliction of Emotional Distress is allowed if:

1. The defendant should have realized his conduct involved an unreasonable risk of causing emotional distress
2. The distress was severe enough to be medically diagnosable and medically significant

Question 59

What is negligence per se?

Answer 59

The assumption of negligence created by the violation of a statute.

Question 60

What are the two ways that negligence per se is identified?

Answer 60

1. A judge decides that negligence is so clearly present or so clearly absent that it doesn’t need to be tried by a jury
2. A particular conduct is deemed to be always negligent through a common law ruling or statute

Question 61

What are the approaches to negligence per se?

Answer 61

Majority approach - treats violation of a statute as negligence per se

Minority approach - violation of a statute is evidence of negligence but is not dispositive

Question 62

Does compliance with a statute eliminate a claim of negligence per se?

Answer 62

Compliance with Statutes is evidence of due care but it is not dispositive.

Missouri follows the approach that the totality of the circumstances must be considered even where a defendant has complied with the statute - Fire alarm case

Question 63

If a behavior or action is customary, does that eliminate a negligence per se claim?

Answer 63

Evidence that a person acted in the customary way is a relevant consideration in negligence cases, but it is not dispositive. Likewise, evidence that a person did not act in the customary way is relevant, but does not necessarily mean the person was negligent.

Ship radio case

Question 64

How does Missouri approach negligence per se?

Answer 64

Missouri courts say that the elements of a negligence per se claim are:

(1) the defendant violated a statute;
(2) the injured plaintiff was a member of the class of persons intended to be protected by the statute;
(3) the injury complained of was of the kind the statute was designed to prevent; and
(4) the violation of the statute was the proximate cause of the injury

Question 65

What are the exceptions to negligence per se?

Answer 65

1. Children can’t be guilty of negligence per se
2. Reasonability of the act given the actor’s childhood, physical disability, or incapacitation
3. Use of reasonable care in attempting to comply with the statute
4. Unawareness of the facts that make the statute applicable
5. Confusing statute may create a defense for a violator of the statute
6. Lesser of two evils - where compliance with the statute would cause a greater risk of harm

Question 66

What is Res Ipsa Loquitur and what case created it?

Answer 66

“The thing speaks for itself” created by the case Byrne v. Boadle

Question 67

What are the traditional elements of the Res Ipsa?

Answer 67

Missouri follows this approach

1. The accident must be one which normally does not occur without negligence (This is a question of law for the judge to determine)
2. The instrumentalities involved were under the defendant’s management and control (This is a question of fact for the jury to determine, multiple people can have actual joint control, all can be sued)
3. The defendant must have superior knowledge or means of information as the cause of the occurrence (This is a question of law for the judge to determine)

Question 68

What is the modern approach to the elements of res ipsa?

Answer 68

1. The harm suffered is most likely caused by the negligence of someone (can’t be the result of nature or chance)
2. It is more than likely that the defendant was negligent
3. The plaintiff was not at fault or the plaintiff cannot determine what happened

Question 69

What are the majority and minority presumptions of res ipsa?

Answer 69

1. Majority of courts apply an inference of negligence on the part of the plaintiff which the jury may rely on or ignore
2. Minority of courts apply a presumption of negligence which the defendant must rebut, if the def can’t rebut the presumption then the jury must rule for the plaintiff

Question 70

What are the various types of control under res ipsa?

Answer 70

1. Exclusive/Clear control - when one party is solely in control
2. Joint control - when multiple parties are all in control simultaneously (for example surgery)
3. Consecutive control - different parties have control successively, but there is no overlap (for example someone who rides in an ambulance and then is cared for at a hospital)
4. No joint or consecutive controls - different parties doing different things, the aggregate of which results in injury. In this case a suit cannot be sustained unless you can show that a particular party was negligent. (If there is no joint or consecutive control then no Res Ipsa)

Question 71

In what situation can a res ipsa claim not be brought?

Answer 71

1. A complete explanation of the circumstances is available
2. Or there was evidence that was available but the plaintiff chose not to obtain it or ignored it

In Missouri, if specific negligence can be alleged or supported, then Res Ipsa cannot be invoked.

Question 72

What are the actual cause tests?

Answer 72

1. But for
2. Two fires (Duplicative cause)
3. Preemptive cause

Question 73

How do you assess the actual cause?

Answer 73

1. Identify the harm
2. Identify the negligence
3. Apply the tests

Question 74

What is the burden of proof for actual cause and who bears it?

Answer 74

The plaintiff merely needs to prove by a preponderance of evidence that it is more probable than not that the injury would have been avoided but for the defendant’s negligence.

Question 75

What is the two fires test or duplicative cause?

Answer 75

if two actions contribute equally to the result such that they would both fail the “but for” test, then the two fires or duplicative cause test will be used to determine if they caused the harm.

Question 76

What is preemptive cause?

Answer 76

When one action or event completes the harm before another action or event occurs, then the second event is not actual cause for the harm (even if it would have been had the first event not occurred)

Question 77

What is alternative liability?

Answer 77

1. A group of defendants
2. Who all acted negligently
3. One or more (but not all) caused the harm
4. The plaintiff cannot determine which one caused the harm
5. Everyone who might have caused the harm is a defendant

Question 78

Can alternative liability proceed if not all those involved acted negligently?

Answer 78

If not all of them acted negligently then alt liability won’t hold. For example the cops who shot at the building thinking there was a sniper. No liability there because some of them may have acted negligently and some of them may have acted responsibly

Question 79

Can alternative liability succeed if all the individuals did cause the harm?

Answer 79

If they all caused the harm then alternative liability won’t be necessary, instead you would use duplicative cause or the two fires situation because they all contributed

Question 80

How is alternative liability applied in Missouri?

Answer 80

The Mo. Sup Court has rejected Alt Liability claims but without ruling out the possibility of allowing a claim in an appropriate case

Question 81

What is the effect of a res ipsa claim on the defendant?

Answer 81

Res ipsa claims create an optional or permissible inference of negligence which the jury can make.

In a Res case, thee ultimate burden of proof remains with the plaintiff to convince the jury that a defendant was negligent and that such negligence caused the plaintiff’s injury.

Question 82

What is the effect of alternative liability on the defendant?

Answer 82

Alternative liability creates a presumption of negligence the defendants must rebut.

Question 83

What phrase does the Missouri jury instruction use to talk about causation for negligence claims?

Answer 83

The jury is asked to determine whether the negligence “directly caused or contributed to cause” the harm.

The courts generally ask whether the plaintiff’s injury was “the natural and probable consequence” of the defendant’s negligence creating a difference

Question 84

What are the two approaches to medical negligence that deprives a patient of a chance to survive?

Answer 84

1. The traditional all or nothing approach

2. The lost chance approach

Question 85

What is the all or nothing approach?

Answer 85

Under this traditional approach a patient must prove that it is more probable than not that the defendant’s negligence caused the plaintiff’s injury. To satisfy this burden, the patient must have had a greater than 50% chance of survival prior to the negligence otherwise it could not be shown by a preponderance of the evidence that the patient was likely to survive but for the doctor’s negligence.

Question 86

What is the lost chance approach?

Answer 86

Under this modern approach, a patient may collect damages proportional to the change in chance of survival they would have had if they had been treated correctly versus the chances in survival they have as a result of the negligence. If a patient would have had a 50% chance and ended up having a 20% chance due to the negligent care, that patient could recover 30% of the total death benefit.

Question 87

How does Missouri treat medical negligence that affects a patient’s chance of survival?

Answer 87

Missouri uses the modern, lost chance rule but requires that the lost chance must represent a material loss of odds of survival (minuscule changes in the chance of survival won’t be recoverable)

Question 88

What is proximate cause?

Answer 88

Proximate cause the reasonable connection between the act or omission of the defendant and the harm suffered by the plaintiff

Question 89

What are the approaches to considering proximate cause?

Answer 89

1. Foreseeability
2. Substantial Factor
3. Scope of Risk

Question 90

What case first enunciated the idea of proximate cause?

Answer 90

Palsgraf v. Long Island Railroad Co (Cardozo wrote the majority opinion)

Question 91

What is the foreseeability approach to proximate cause?

Answer 91

1. Was the person harmed the type of person who would foreseeably be harmed by such negligence?
2. Was the harm the type of harm that would foreseeably result from such negligence?

Question 92

What is the substantial factor approach to proximate cause?

Answer 92

An actor will be seen as proximate cause where:

1. The actor’s conduct was a substantial factor in causing the harm AND
2. There is no rule relieving the actor from liability.

But such an act may not be proximate cause where after the event and looking back from the harm to the actor’s negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm.

Question 93

What is the scope of risk approach?

Answer 93

An actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.

An actor is not liable for harm when the tortious aspect of the actor’s conduct was of a type that does not generally increase the risk of that harm

Ask: Is the injury within the scope of risk that makes the defendant’s actions negligent? If not, then there will be no proximate cause.

Missouri courts have not expressed a view on this approach.

Question 94

What kind of act can sever the causal link between a defendant’s actions and a plaintiff’s harm?

Answer 94

An intervening intention or criminal act may relieve a negligent defendant of liability, except where the harm caused by the intervening act is within the scope of risk created by the defendant’s conduct or where the intervening act is reasonably foreseeable. Incidents that flow naturally from the initial negligence (such as medical negligence) are considered foreseeable.

Question 95

How does Missouri approach intervening acts?

Answer 95

Missouri follows the general rule that a person injured due to negligence of another is entitled to recover all damages proximately traceable to the original negligence, including subsequent aggravation which the law regards as a natural result of the original injury, even though some intervening agency may have contributed to the result.

Question 96

How does Missouri approach proximate cause?

Answer 96

Missouri courts generally say that proximate cause depends on whether the plaintiff’s injury was “the natural and probable consequence” of the defendant’s negligence.

They describe this as a “look back” test rather than a “pure foreseeability test,” but acknowledge that it “probably includes a sprinkling of foreseeability

Jury instructions for civil cases in Missouri use the word “direct,” asking the jury to decide whether the injury was a “direct result” of the negligence or whether the negligence “directly caused or directly contributed to cause” the harm.

Question 97

How does the non-foreseeability of the danger affect proximate cause?

Answer 97

A defendant’s actions will not generally be deemed proximate cause where the harm was not foreseeable.

Question 98

How does the non-foreseeability of the extent of harm affect proximate cause?

Answer 98

A defendant will be liable for the harm regardless whether the severity was foreseeable.

Missouri follows the general rule that a person injured due to negligence of another is entitled to recover all damages proximately traceable to the original negligence, including subsequent aggravation which the law regards as a natural result of the original injury, even though some intervening agency may have contributed to the result.

Question 99

What is the Palsgraf rule?

Answer 99

Liability for negligence will not lie unless it was reasonably foreseeable that the conduct would result in injury to the victim.

Question 100

What are the two views on the foreseeability of suicide?

Answer 100

Majority view: Suicide is not foreseeable. The majority approach does allow for an exception where a person’s negligence causes the other person to go insane which results in their suicide

Minority view: Suicide foreseeability is a question for the jury. Missouri follows the minority rule - the focus is on whether the suicidal act was a “direct result” of the defendant’s negligence

Question 101

What is the thin skull rule?

Answer 101

Even if you could not have known about a weakness that would exacerbate the harm caused by your negligencee, you are still liable. You must take the plaintiff as you find him.

Question 102

What is the rescuers doctrine?

Answer 102

If you create danger, you should foresee that someone might try to attempt a rescue. If the rescuer is harmed during the attempted rescue, they are able to recover for harm because it is always foreseeable that a rescuer will try to intervene.

In Missouri, to apply this doctrine the rescue attempt must be immediate and spontaneous.

Question 103

What are the two approaches to the application of the rescue doctrine?

Answer 103

Majority rule - The rescue doctrine applies to attempts to rescue people and property

Minority rule - The rescue doctrine applies only in attempts to rescue people, rescues of property are never foreseeable. Missouri follows the minority approach.

Question 104

What are the considerations of negligence per se?

Answer 104

1. Was the accident what the legislature had in mind when creating the statute?
2. Was the injured party part of the group meant to be protected?
3. Was the injury the kind that the statute was meant to prevent?

Question 105

How does Missouri differ in treating mental impairment suffered by the plaintiff as opposed to the defendant?

Answer 105

Missouri and some other courts have suggested that a different rule applies when the mentally impaired person is the plaintiff, rather than the defendant. These courts assert that even though mental problems are disregarded when deciding if a defendant was negligent, a plaintiff’s mental problems should be taken into account in deciding if the plaintiff was negligent.

Question 106

What is the Missouri jury instruction for Negligence Per Se?

Answer 106

1. Did the act or omission demonstrate a violation of the statute?
2. Was the plaintiff injured as a result?

(The jury is not asked to determine whether the acts constituted negligence)

This is the majority approach which allows for conviction based on only these factors. The minority approach allows for a rebuttable presumption of negligence.