Unintentional Torts Flashcards
What are the three major unintentional torts talked about in this course?
- Negligence
- Professional Liability
- Negligent misrepresentation
What are the four elements required to prove negligence? How must each four be proven?
- A duty of care
- Breach of standard of care
- Causation
- Damages
All four on a balance of probabilities.
What is negligence?
Careless conduct, falling below a standard of care, which causes injury to another.
To what extent must a standard of care be met?
To that of a reasonable person, not to perfection.
What is misfeasance?
A wrongdoing.
What is nonfeasance?
A failure to act.
What are the two parts of the 2 part test to determine whether there is a duty of care?
Part 1: reasonable foreseeability test
Part 2: Anns policy test
What is the basis of the reasonable foreseeability test?
Is it reasonably foreseeable that the defendant’s conduct is likely to cause injury?
What is the basis of the Anns test?
If injury or loss IS reasonably foreseeable, are there any policy grounds for NOT imposing a duty of care?
What test is used to determine a breach of standard of care? What is the basis of this test?
A reasonable person test. Did the defendant’s conduct fall below the standard of care of a reasonable person in the same circumstances?
What is the correlation between risk and standard of care?
As risk increases, so does standard of care.
Is inexperience a good excuse for breaching the standard of care?
No, novice professionals must perform to the standard of the reasonable professional.
Are parents vicariously liable for the torts of their children?
No, they are only liable if they are negligent themselves.
What are the two parts of the 2 part test to determine whether there is causation?
- The “but for” test
2. the “remoteness” test
What is the basis of the “but for” test?
Would the injury have occurred BUT FOR the defendant’s conduct? (physical causation)
What is the basis of the “remoteness” test?
Was the injury/loss too remote to have been foreseen by the defendant?
What is the thin skull rule?
We take our victims as we find them, if they are particularly frail, too bad. If defendant is liable for injury, they are liable for the full extent of the victim’s injuries, no matter how bad.
What are two defenses to negligence?
- Contributory negligence
2. Voluntary Assumption of risk
What is contributory negligence? How is liability shared in this case?
A defense to negligence where the plaintiff contributed to their OWN injury. Liability is apportioned by percentage.
What is voluntary assumption of risk? How is liability shared in this case?
A defense to negligence stating the defendant is not liable if the plaintiff assumed the risk. All or nothing, no shared liability.
Do waivers stand up in court?
Rarely ever, unless there is proof that the plaintiff has been made very aware of it, read it thoroughly, and understood what was in it.
What are three cases addressing the question of whether or not the social host of an event serving alcohol is liable for guests who impose injury? What were their conclusions?
- Holton v. McKinnon - social host of licensed establishment found liable, did not take reasonable precautions to ensure safety of plaintiff
- Stewart v. Pettie - social host of licensed establishment found not liable, reasonable to assume that non-drinker would be DD
- Childs v. Desormeaux - social host of BYOB party found not liable.
Who is defined to be an occupier?
Anyone who has control of the property, can either be owner or tenant.
Are visitors to property owed a duty of care by the occupier? Explain.
Yes, the occupier must take reasonable steps to ensure they are reasonably safe.
Is a trespasser to property owed a duty of care by the occupier? Explain, as well as mention any exceptions.
Yes, but minimally. No deliberate traps or injury. If trespasser is a minor, law will treat him/her almost like a visitor.
