Torts rule statements Flashcards
Elements of battery
In a battery action, a plaintiff must show that
1. The defendant intended to cause contact with the plaintiff’s person
2. Affirmative conduct caused such a contact
3. The contact caused bodily harm or was offensive to the plaintiff
When is a defendant’s contact intentional (battery)?
A defendant’s contact is intentional if he acts with the purpose of bringing about the action, or engages in an action knowing the contact is substantially certain to occur
Majority rule about intent and battery
In most jurisdictions, the defendant need only intend to cause contact, not that the contact be harmful or offensive (often called the single intent rule)
Elements of a negligence action
In a negligence action, a plaintiff must show that
1. The defendant owed the plaintiff a duty
2. The defendant breached that duty
3. The defendant caused the plaintiff’s injuries
4. Damages exist
Standard of care in general
Generally, the standard of care imposed on a defendant is that of a reasonably prudent person under similar circumstances
What is required of someone under the general standard of care
A person is required to exercise the care that a reasonable person under the same circumstances would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person
How does a jury consider whether a specific precaution was warranted under the general duty of care?
In determining whether a specific precaution was warranted, a jury must weigh the probability and gravity of the injury against the burden of taking such precautions
Vicarious liability, generally
Vicarious liability is a form of strict liability, in which one person is liable for the negligent actions of another
Employers and vicarious liability
An employer is liable for the tortious conduct of an employee that is within the scope of employment
Two approaches in determining whether there was a breach of duty
Traditional approach and the cost benefit approach
Traditional approach to breach
Most courts follow the traditional approach, and will compare the defendant’s conduct with that of a reasonably prudent person
Cost benefit approach to breach
The modern trend is to perform a cost-benefit analysis to determine whether the defendant has acted in accordance with the standard of care.
What is considered in the cost benefit approach to breach
The cost benefit analysis considers
1. The foreseeable likelihood that the defendant’s conduct would cause harm
2. The foreseeable severity of any resulting harm; and
3. The defendant’s burden in avoiding the harm
Evidence of custom in an industry
Evidence of custom in an industry may be offered to establish the standard of care, but is not conclusive
Defendant’s liability for plaintiff’s preexsting physical or mental conditions
The defendant is liable for the full extent of the plaintiff’s injuries due to the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or foreseeable
Standard of care for a physician
A physician is held to a national standard of care and is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner
Who is a duty of cared owed to?
Under the majority approach, a duty of care is owed to all foreseeable persons who may foreseeably be injured by a defendant’s failure to act as a reasonable person under the circumstances
Strict products liability, generally
Under strict products liability, the manufacturer, retailer, or distributor of a defective product may be liable for any harm caused by the product
How can a plaintiff prove product liability?
A plaintiff must prove the product is defective (in manufacture, design, or failure to warn), the defect existed at the time the product left the defendant’s control, and the defect caused the plaintiff’s injuries when used in an intended or reasonably foreseeable way
Manufacturing defect
A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff
Test for manufacturing defect
The test is whether the product conforms to the defendant’s own specifications
Implied warranty of merchantability
The implied warranty of merchantability warrants that the product being sold is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold
When is the implied warranty of merchantability breached?
Any product that fails to live up to this warranty constitutes a breach, regardless of any fault by the defendant.
Burden to prove who caused injury
Regardless of the theory of liability, the burden is on the plaintiff to prove that the specific defendant caused the plaintiff’s injuries
Market share liability theory
Under this doctrine, if the plaintiff’s injuries are caused by a fungible product and it is impossible to identify which defendant placed the harmful product into the market, the jury can apportion liability based on each defendant’s share of the market
Alternative causation doctrine
If the plaintiff’s harm was caused by one of a small number of defendants, each of whose conduct is tortious, and all of whom are present before the court, the court may shift the burden of proof to each individual to prove that their conduct was not the cause in fact of the plaintiff’s harm.
Concert of action doctrine
Under this doctrine, if two or more tortfeasors were acting pursuant to a common plan or design and the acts of one or more of them tortiously caused the plaintiff’s harm, then all the defendants will be held jointly and severally liable
What retailers are subject to strict liability
To be subject to strict products liability, the defendant must be in the business of selling or otherwise distributing the product.
SL and abnormally dangerous activities
Defendants that are engaged in abnormally dangerous activities may be held strictly liable for damages caused by that activity, even in the absence of negligence
What activities are abnormally dangerous?
Activities are considered abnormally dangerous if they create a foreseeable and highly significant risk of physical harm, even in the exercise of reasonable care, and the activity is not commonly engageed in
Compliance with a statutory standard of care and negligence per se
Although the unexcused violation of a statutory standard of care may be negligence per se, the converse is not true. An actor who has complied with all statutory standards may still be found negligent if his conduct is not reasonable under the circumstances.
Liability and proximate cause
Liability typically extends only to foreseeable plaintiffs and hazards
Foreseeability of rescuers
A person who comes to the aid of another is a foreseeable plaintiff.
Liability to rescuers in negligence actions
If the defendant negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer’s injuries.
Negligent intervening acts
Negligent intervening acts are usually regarded as foreseeable and do not prevent the original defendant from being held liable to the plaintiff
When does one remain liable for conduct of independent contractors
The person who hires an independent contractor remains vicariously liable for certain conduct, including inherently dangerous activities and duties arising out of a relationship with a specific plaintiff or the public, including conduct that affects the public at large.
When is an activity inherently dangerous
An activity is inherently dangerous when, if reasonable care is not exercised, the resulting risk differs from the type of risk usual in the community
When is contact harmful?
Contact is harmful when it causes injury, physical impairment, pain, or illness
When is contact offensive?
Contact is offensive when a reasonable person would find the conduct offensive
When does a defendant intentionally cause contact?
When they act with the desire to bring about the contact or engages in action knowing that the contact is substantially certain to occur
Majority rule on intent and battery
In most jurisdictions, the defendant need only intend to bring about the contact, not that the defendant intends the contact to be harmful or offensive
When is an employee vicariously liable for an employee’s torts
If the employer has the right to control the activities of the employe
Consent as a defense to battery
Consent is a defense to battery and can be express, apparent, or presumed
Apparent consent and battery
Apparent consent exists and a defendant will not be liable for otherwise tortious conduct if the defendant reasonably believes that the plaintiff actually consents to the conduct, even if the plaintiff does not
Eggshell plaintiff rule
Under the eggshell plaintiff rule, a defendant is liable for the full extent of the plaintiff’s injuries due to the plaintiff’s preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.
Intervening cause
An intervening cause is a factual cause of the P’s harm that contributes to her harm after the D’s tortious act is completed.
Superseding cause
A superseding cause is any intervening cause that breaks the chain of proximate causation between the D’s tortious act and the P’s harm, thereby preventing the original D from being liable to the P
unforeseeable intervening causes
Most courts hold that an unforeseeable intervening cause is a superseding cause that breaks the chain of causation between defendant and plaintiff
unforeseeable intervening causes
examples of unforseeable intervening causes include extraordinary acts of nature, criminal acts of third parties, and intentional torts of third parties
standard of care for children
Although the standard of care imposed in most cases is that of a reasonably prudent person under the circumstances, the standard imposed upon a child is that of a reasonable child of similar age, intelligence, and experience.
children engaging in high risk activities
A child engaged in a high risk activity that is characteristically undertaken by adults is held to the same standard as an adult
Prevelance of comparative fault
Almost all jurisdictions have adopted some form of comparative fault
Comparative negligence, generally
Under comparative negligence jurisdictions, the plaintiff’s degree of negligence will be compared to the total negligence of all defendants combined, and a finding that one is negligent could reduce their damages.
Modified comparative negligence
In a modified comparative negligence JDX, a finding that the plaintiff was more negligent than all of the defendants combined would bar recovery
Prevalence of traditional landowner rules
Approximately 1/2 of all JDXs continue to follow traditional rules that provide that the standard of care owed to land entrants depends on the status of the entrant as an invitee, licensee, or trespasser
Licensee
A licensee is someone who enters the land of another with the express or implied permission of the land possessor or with a privilege
duty to licensees
A land possessor has a duty to either correct or warn licensees of concealed dangers that are either known to the land possessor or should be obvious to her.
duty to inspect for dangers re: licensees
The land possessor has no duty to inspect for dangers, but must exercise reasonable care in conducting activities on her land
Uniform standard of care for land entrants
Courts in the other half of JDXs require that a standard of reasonable care apply to all land entrants except trespassers, abolishing the distinction between invitees and licensees
Landowner’s duty to nontrespassers when distinction b/t invitees/licensees doesn’t exist
A land possessor must use reasonable care to prevent harm posed by artificial conditions or conduct on the land
trespasser definition
A trespasser is someone who enters or remains upon the land of another without the consent or privilege to do so
majority rule of landowner conduct towards trespassers
the majority rule is that a land owner is obligated only to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers
attractive nuisance doctrine
Under this doctrine, a land possessor is liable for injuries to children trespassing on their land if
1. an artificial condition exists where the land possessor knows or has reason to know that children are likely to trespass
2. the land possessor knows or has reason to know that the condition poses an unreasonable risk of death or SBH to children;
3. the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition;
4. the utility to the land possessor of maintaining the condition and the burden of eliminating it are slight compared to the risk of harm posed to children; and
5. the land possessor fails to exercise reasonable care to protect children from harm
duty of care when voluntarily rescuing another
A person who voluntarily aids another has a duty to act with reasonable care.
duty to rescue another
Generally, there is no duty to come to the aid of another.
When is contact harmful for battery
Contact is harmful when it causes injury, physical impairment, pain, or illness
When is contact offensive for battery
contact is offensive when a reasonable person would find the contact offensive
Minority approach to battery (double intent rule)
Under the minority approach, a claimant needs to show that not only did the D intend to cause contact with them, but also that they intended for this contact to be harmful or offensive
When is a product defective
A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, a design defect, or inadequate instructions or warnings.
Manufacturing defect
A manufacturing defect is a physical deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. The test for the existence of such a defect is whether the product conforms to the defendant’s own specifications
Requirements to prevail on strict products liabiilty claim
To prevail on a strict product liability claim, the plaintiff must show
1. the product was defective
2. the defect existed when the product left the D’s control
3. the defect caused P’s injury
4. the product was used in a reasonably foreseeable way
Standard of care for D with physical disabiilty
The reasonableness of the conduct of a D with a physical disability is determined based on a reasonably careful person with the same disability.
Duty definition
Duty is the obligation to protect another against unreasonable risk of injury
Public invitee
An invitee is someone invited to enter or remain on land for the purposes for which the land is held open to the public.
Duty of care owed to invitee
A land possessor owes an invitee the duty of reasonable care, including the duty to inspect the property, discovery unreasonably dangerous conditions, and protect the invitee from them
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Standard of care while voluntarily rendering aid
While there is no affirmative duty to act, a person who voluntarily aids or rescues another has a duty to do so with reasonable, ordinary care
