Bar - Torts - Set 2

Front 1

Elements of a Prima Facie Case for Negligence

Back 1

1) Duty
2) Breach
3) Actual and Proximate Cause
4) Damages

Front 2

Determinig whether or not a duty is owed

Back 2

1) Was the P forseeable? (in the zone of danger)
2) If so, what is the applicable standard of care

Front 3

Specific Situations where P is always foreseeable

Back 3

1) Rescuers (except police/fire)
2) Viable Fetus
3) Third party beneficiary

Front 4

Default Duty - Default Standard of Care

Back 4

A rsnbly prudent person under same/similar circs (emergency circs taken into account unless of Ps own creation)

Two exceptions to rigid objectivity =
1) Δ’s expertise = Body or single fact
2) Physical characteristics of Δ

Front 5

Specialized Standards of Conduct

Back 5

1) Professionals
2) Children
3) Common Carriers and Innkeepers
4) Bailor/Bailee
5) Premisis Liability
6) Negligence Per Se
7) NIED
8) Affirmative Duty to Act

Front 6

Professionals, Duty of Care

Back 6

knowledge or skill of a member of the profession in good standing in similar communities

-Specialists = nat'l standard

-Dr = duty to disclose risk of treatment to enable π to give informed consent. Inquiry, would a RP in patient's position consent post warning?

Front 7

Child's Duty of Care

Back 7

(SBJ) child of like age, education, intelligence, experience in similar circumstances

- Standard very customized to specific kid

Exception = child engaged in adult activity (vehicle)

Front 8

Common Carriers/Innkeepers

Back 8

Held to a very high degree of care, liable for slight negligence. H/e, the P must be a passenger or guest.

Front 9

What is a bailor?

Back 9

One who transfers possession of a chattel (but not title)

Front 10

What is a bailee?

Back 10

One who takes possession of a chattel (but not title)

Front 11

Bailee Standard of Care

Back 11

1) If the bailment is for the sole benefit of the bailor, low standard of care.
2) If for the sole benefit of the bailee, high standard of care
3) If for mutual benefit, ordinary standard of care

Front 12

Bailor Standard of Care

Back 12

A bailor must inform the bailee of known, dangerous defects in the chattel. If it is a bailment for hire this includes an defects which he should be aware of.

Front 13

Negligence Per Se

Back 13

A statute may create a more stringent duty if
1) it provides for criminal penalty
2) clearly defines standard of conduct
3) P is within the protected class
4) designed to prevent the type of harm suffered by P

EXCEPTIONS
1) When compliance would be beyond D's control

Front 14

Negligent Infliction of Emotional Distress

Back 14

1) P must be in the zone of danger
2) P must suffer physical symptoms from the distress

OR
1) Bystander outside zone of danger that sees can recover for their distress if P is closely related to injured party, P was present at scene and perceived the event
2) If there is a special relationship between P and D with potential to cause great distress (Dr misdiagnosis, mishandling of body). May not require proof of physical manifestation.

Front 15

Affirmative Duties to Act

Back 15

1) Undertaking aid (Good samaritan statutes exempt doctors, etc. from ordinary negligence)
2) When D creates Peril
3) Special Relationship - common carriers/innkeeprs/shopkeepers
4) Duty to control 3rd parties if one has knowledge of prpensity and ability/authority to control

Front 16

Categories of Premisis Liability

Back 16

1) Those off Premises
2) Undiscovered Trespassers
3) Discovered Trespassers
4) Licensees
5) Invitees
6) Attractive Nuisance
7) Recreational Land
8) Lessor/Lessee of Realty
9) Vendor of Realty

Front 17

Off-Premises Duty

Back 17

no duty from natural conditions, duty for unrsnbly dangerous artificial conditions or structures abutting adjacent land

Front 18

Undiscovered Trespassers

Back 18

No Duty

Front 19

Known Trespasser

Back 19

Duty to warn of or make safe artifical conditions if non obvious and highly dangerous. No duty as to natural conditions.

Front 20

Licensee

Back 20

Those who enter land with permission, not for econ benefit. Social guests.

Duty to warn of or make safe known conditons if nonobvious and dangerous.

Front 21

Invitee

Back 21

Persons who enter the land with permission to confer an economic benefit OR land that is generally held open to the public even if for free.

Duty to make reasonable inspections to discover nonobvious dangerous conditions and warn of or make them safe.

One can exceed scope of invitation and lose invitee status.

Front 22

Attractive Nusance

Back 22

Duty to avoid forseeable risk of harm to children caused by artificial conditions. Must show:
1) dangerous condition that the owner K or SK of
2) owner K or SK children frequent vicinity
3) condition is likely to cause injury b/c kid can't appreciate risk
4) expense of fixing is slight compared with magnitude of risk.

** Note - thing that lured kid onto property doesn't have to be thing that injured kid.

Front 23

Duty for Recreational Property w/o fee

Back 23

not liable for injuries unless Δ willfully and maliciously failed to guard/warn against danger

Front 24

Lessor/Lessee

Back 24

Lessee has a duty to maintain the premises. Lessor must warn of existing defects of which he K or SK and the less is not likely to discover on reasonable inspection.

Front 25

Vendor of Realty

Back 25

Must disclose concealed, unreasonably dangerous conditions which the vendor K or SK and vendee can't discover w/ reasonable inspection.

Front 26

Effect of Warnings on dangerous property condition

Back 26

satisfy the duty of care b/c the turn a concealed hazard into a known hazard

Front 27

Define Breach

Back 27

Δ’s conduct falls short of level required by applicable SOC owed to π

Front 28

Theories of Breach

Back 28

1) Custom or usage (but entire industry may be neg)
2) Violation of statute/Neg per se
3) Res ipsa loquitor

Front 29

Res Ipsa Loquitur

Back 29

1) Accident is not the type that would occur unless someone was negligent
2) negligence is attributable to the defendant/exclusive control
- P can lose if inference is rejected by trier of fact

Front 30

Causation-in-Fact

Back 30

But for the breach, π would be uninjured today

Problem of Multiple Δs
- Merged cause = if Δ’s act was a substantial factor in causing π’s injury, Δ is liable
- Unascertainable cause = Burden shifts to Δs to show they weren’t actual cause, if they cannot meet burden Δs joint and severally liable

Front 31

Proximate cause in direct cause cases

Back 31

Δ is liable unless what happened is freakish + bizarre,usually no proximate cause issues.

Front 32

Proximate cause in indirect cause cases

Back 32

Δ liable for frsbl consequences of his actions

Always forseeable if:
1) Negligent Medical Malpractice
2) Negligent Rescue
3) Reaction or Protection
4) Subsequent Diseases/Accidents from injury

Independent Intervening Forces = Neg 3Ps, Intentional Torts + Acts of God

If not one of the big four: ask: Is the harm that occurred the harm we were afraid would occur as a result of the breach?

Front 33

Eggshell Plaintiff

Back 33

Unforseeable Extent or Severity of Harm is no defense. You take your Plaintiff as you find him.

Front 34

Damages

Back 34

Eggshell π = all econ + non-econ harm + potentially punitive damages for wanton and willful/reckless/malicious conduct.

P has a Duty to Mitigate – π take rsnbl steps, i.e. treatment

Collateral Source = dmgs not reduced just b/c π has benefits from other sources, i.e. health insurance

Front 35

Nonrecoverable Damages in Negligence

Back 35

Interest fromd date of injury and attorney's fees.

Front 36

Negligence Defenses

Back 36

1) Comparative Negligence
2) Contributory Negligence
3) Assumption of Risk

Front 37

Contributory Negligence

Back 37

Negligence by P contributes to her injuries. At common law, it bars P's right to recovery. Not used in most JX now.

Front 38

Last Clear Chance

Back 38

to mitigate harsh affect of contributory negligence - the person with the last clear chance to avoid an accident but fails to do so is liable for negligence.

- Δ K/SHK π in hapless peril
- Δ must actually know of π’s condition
- Δ been able to avoid harming π at time accident occurred

Front 39

Contributory Negligence - Negligence Per Se

Back 39

If Negligence per se, Contributory Negligence cannot be a defense when the statute was designed to protect the P - i.e. children darting into the street in a school zone.

Front 40

Assumption of Risk

Back 40

Implied or Express

Implied when the risk is one that an average person would clearly appreciate.

No assumption of risk when P had no other option.

Common carriers and public utitlities may not use assumption of risk by disclaimer.

Front 41

Comparative Negligence

Back 41

Ps recovery is reduced according to her contribution.

Partial comparative negligence - bars Ps recovery if his negligence is more serious than D's negligence.

Pure comparative negligence - allow recovery no matter how great P's negligence.

Front 42

Strict Liability - Prima Facie Case

Back 42

1) Nature of activity imposes an absolute duty to make safe
2) Dangerous aspect of the activity was the actual and proximate cuase of Ps injury
3) P suffered damage to person or property

Front 43

Strict Liability for Animals

Back 43

1) Trespass = SL for rsnbl dmg caused by owner's animals
2) Wild = SL to licensees + invitees unless 3P provoked it
3) Domestic = no SL unless Δ has knowledge of animal’s dangerous propensities not common to that species
4) Trespassers ≠ SL unless owner is neg. H/E alternatively landowner could be liable for intentional tort for injuries inflicted by vicious watchdogs (like the springgun case)

Front 44

Abnormally Dangerous Activities

Back 44

1) Activity creates frsbl risk of serious harm even when rsnbl care is exercised by all actors
2) Activity ≠ matter of common usage in the community

Front 45

Defenses to Strict Liability

Back 45

1) Comparative Negligence is typically allowed.
2) Assumption of risk is a good defense.
3) Contributory negligence is usually no defense if P has failed to realize the danger or guard against it. P's unreasonable conduct must be the cause of the explosion.

Front 46

Theories of Liability for Products Liability

Back 46

1) Intent 2) Negligence 3) Strict Liability 4) Implied warranties of merchantability and fitness for a particular prupose 5) warranty and misprepresentation

Front 47

Strict Products Liability Prima Facie Case

Back 47

1) Strict duty owed by a commercial supplier of a product to purchasers and bystanders
2) production of a defective product, defect when the product left D's control
3) P is making a foreseeable use of the product
4) actual and proximate cause
5) damages

Front 48

Δ is a merchant

Back 48

Regularly deals in goods of the kind

Good provided incidental to service does not count

Front 49

The product is defective

Back 49

Must be defective when the product left D's control (inferred if normal distribution)

Types of defects:
1) Manufacturing = Product differs from its intended design in a way that makes it more dangerous than consumers would expect
2) Design = All products are same, but unrsnbly dangerous. P must est. alternative design = (1) safer (2) cost effective (3) practical
3)Inadequate Warning = Can’t be made safer + risks not obvious to consumers. Warnings by learned intermediaries are sufficient - physicians, etc.

Other Factors to consider:
Government Safety Standards
Scientifcally Unknowable Risks
Unavoidably Unsafe Products

Front 50

Effect of Government Safety Standards

Back 50

Noncompliance with government safety standards establishes that the product is defective. Compliance with standards, while evidence, is not conclusive of safety.

Front 51

Scientifically Unknowable Risks

Back 51

D is not liable for dangers not foreseeable at the time of marketing

Front 52

Unavoidably Unsafe Products

Back 52

Manufacturers aren't laible for dangerous products if the danger is apparent and there is no safer way to make the product (knives)

Front 53

Products Liability Based on Intent

Back 53

If D intended the consequences or knew they were substantially likely to occur. No privity required. Compensatory as well as punitive damages.

Front 54

Products Liability based on negligence

Back 54

Duty to any foreseeable P (user, consumer, bystander). Anyone in the chain can be held liable.

Breach is shown by the defendant supplying a defective product. May use res ipsa.

** Retailers and wholesalers can usually satisfy their duty through a cursury inspection.

Causation - failure to discover doesn't absolve the manufacturer.

Damages - must be shown

Front 55

Products Liability based on implied warranties of merchantability and fitness

Back 55

1) Merchantability - good are of average acceptable quality and a fit for the ordinary purose for which the goods are used.

2) Fitness for a particular purchase - seller K or SK the purpose that the goods are being used for and buyer relies on seller's skill in selecting goods.

Damages - personal injury, property damages, economic loss.

Other negligence rules apply

Front 56

Misrepresentaiton for Products LIability

Back 56

1) Express Warranty - Affirmative promise, didn't live up to warranty.

2) Misrepresention - statement of material fact concerning quality or use of goods, seller intended to induce reliance.