Torts Review Flashcards
Birkner Test
Conduct is the type of conduct they are hired to perform
Conduct occurred in the time and space of the employment
Conduct–at least in part–is in the interest of the employer
Non-Delegable Duty
Peculiar Risk
Abnormally Dangerous
Dangerous instrumentality
Duty to the Public at Large
Legislatively or administratively prescribed duties
Merchant-Customer Third Party Crim Duty Approaches
Specific Harm Rule : is there awareness of imminent harm?
Prior Similar Incidents Test: is there notice from similar crimes on or near the premises?
Totality of the Circumstances Test: was the act generally foreseeable?
Balancing Test: foreseeability of the harm versus burden of providing protection. Requires notice from similar crimes on or near the premises.
Tarasoff Rule - Most Jurisdictions:
Owes a duty when the identifiable or reasonably identifiable third party is at risk of death and serious bodily injury
Therapist knows or has reason to know based on what info said that patient poses a risk of death or bodily injury to that third party
Duty to take reasonable steps to protect the identified or reasonably identified third party (NATURE?)
California Approach for mental health professionals:
Foreseeably in danger of death or bodily injury
Duty to make reasonable efforts to communicate the threat to the victims and to a law enforcement agency
Voluntary Assumption of Duty
Restatement 3d
While in actors charge: Reasonable care while the other is within the actors charge
While discharging: Reasonable care to refrain from putting the person in a worse position than existed before the actor took charge of the other; Reasonable care in regards to peril before terminating the rescue attempt if the other reasonably appears to be in peril of serious physical harm.
Restatement 2d
While in actors charge: Reasonable care to secure the safety of the other while within the actor’s charge
While discharging: Not leaving them in a worse position than when the actor took charge.
Implied PRA
The plaintiff was a member of the class whose particular benefit the statute was enacted for
Recognition of a private right to action would promote the legislative purpose; and
Creation of such a right would be consistent with the legislative scheme
Undertakings to a Person
An actor who undertakes to render services to another and who knows or should know that the services will reduce the risk of physical harm to the other owes a duty if
The failure to exercised rc increases the risk of harm beyond that which existed without the undertaking; or
The person whom the services are rendered of another relied on the actor to exercise rc in the undertaking
Undertakings to a 3d Party
An undertaking can create an obligation of rc to a third party if
The failure to exercise rc increases the risk beyond that which existed without the undertaking;
The actor has undertaken to perform a duty owed by the other to the third person; or
The person to whom the services are rendered, the third party, or another, relied on the actor’s exercising rc in the undertaking
Contracts
Privity: Only parties to a contract can enforce the terms or be bound by them owe a duty
Tantamount to Privity: Those whose bond is so close as to be, in practical effect, indistinguishable from privity owe a duty
Intended Third Party Beneficiary: A duty owed to a third party when the injuries are foreseeable and the plaintiff is a member of a specific, limited, circumscribed class with a close relationship to the person in privity
Reasonable Foreseeability: A duty is owed to someone when it was reasonably foreseeable that breaching the contract would harm this person.
Negligent Entrustment
Restatement 2d
Scope: 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 (1) Youth, (2) Inexperience, (3) Otherwise to use in in a manner involving unreasonable risk of physical harm to himself or others whom the supplier should expect to share in or be endangered by its uses, is subject to liability for the physical harm resulting to them
Negligent Entrustment
Restatement 3d
The conduct of the defendant lacks reasonable care insofar as it foreseeably combines with or permits the improper conduct of the plaintiff or a 3rd party
Child Trespasser
Knows or has reason to know children will trespass
Knows or has reason to know or realizes or should realize there is unreasonable risk of death or serious bodily injury to children
Child does not realize risk in conditions because of youth
utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved
Tests for Direct Infliction
Physical Impact
Physical touching be correlated with an imminent risk of physical harm
Resulted in emotional distress
Zone of Danger
An actual risk of death or serious bodily injury, not merely physical harm of any kind
Had an objectively reasonable and subjective fear of physical injury; that
Cause severe emotional distress
Reasonable Person
Plaintiff must prove that a reasonable person in their position would suffer emotional distress
Physical Manifestation
Under Texas law, a direct action for negligent infliction of emotional distress can be based on a special relationship as well as on a physical manifestation
In other jurisdictions, the physical manifestation is an add-on to other claims for emotional distress like the impact rule, zone of danger test, or reasonable person test
Special Circumstance
Allows the plaintiff to recover for negligent handling of a corpse or a telegram regarding death, uses the outrageousness of the circumstances to guarantee the authenticity of the distress.
Physical manifestation can not be added to this standard, as the nature of the circumstances is considered distressing enough to validate the claim.
