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105 Cards in this Set
- Front
- Back
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In general, to whom is duty owed?
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all people who are foreseeable victims of your failure to take precautions
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Palsgraf
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Woman 25 feet away hit by a scale which fell when a man holding fireworks was pushed onto a train
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Foreseeable as a Matter of Law (2)
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- rescuers
- viable fetuses (even if tortfeasor did not know of pregnancy) |
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GR: What is the judging standard?
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reasonably prudent person under the same or similar circumstances
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If a D has superior skill or expertise, is he judged by that?
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Yes
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How is a disabled D judged?
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Compare to a reasonably prudent person with same disability
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Majority Rule for Child Negligence
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reasonable child of like age, intelligence, and experience
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Rule of 7's for Child Negligence
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- under 7 incapable
- 7-13 rebuttal presumption of incapable 14+ rebuttable presumption of capable |
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Children in Adult Activities
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A child engaged in an adult activity is held to the adult standard
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Standard for Professionals
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a professional is required to possess and exercise the knowledge and skill of an ordinary member of the profession in good standing
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Medical Malpractice - what controls?
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informed consent
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Legal Malpractice - burden of P
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must show causation - there is no automatic liability
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Four types of occupiers on land
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- undiscovered trespasser
- discovered trespasser - licensee - invitee |
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Are licensee and invitee classifed the same in NC?
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Yes
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Duty Owed:
Undiscovered Trespasser Activity on Land |
None
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Duty Owed:
Undiscovered Trespasser Condition on Land |
None
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Duty Owed:
Discovered Trespasser Activity on Land |
Reasonable care
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Duty Owed:
Discovered Trespasser Condition on Land |
man made death trap
- artificial - known - highly dangerous - hidden to trespasser |
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Duty Owed:
Licensee Activity on Land |
reasonable care
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Duty Owed:
Licensee Condition on Land |
- concealed
- known to owner |
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Duty Owed:
Invitee Condition on Land |
- concealed
- known to owner - owner could have learned of hazard with reasonable INSPECTION |
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Duty Owed
Invitee Activity on Land |
Reasonable Care
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Landowner can satisfy legal obligation regarding a static condition on land by (2)
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Either
- repair condition, or - post warning |
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Child Trespasser
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Use attractive nuisance standard and use reasonable prudence for a person who has an attractive nuisance
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Will an entrant injured by an open and obvious condition win?
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No
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Negligence Per Se
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Statutory standard of care which can borrow from a civil or regulatory statute
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Negligence Per Se Test (2)
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- was the person a member of the class the legislature intended to protect
- was the harm of the kind which the statute was intended to protect |
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Exceptions to compliance of statute regarding negligence per se (2)
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- compliance with statute is more dangerous than violating
- compliance is impossible under the circumstances |
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Affirmative Duty to Act Rule
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There is no duty to rescue
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Exceptions of Affirmative Duty to Act Rule
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- D put P in peril
- close relationship between P/D - common carrier or innkeeper - invitee/invitor |
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Duty to Control 3P
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D must have actual ability and authority to control (e.g., parent-child)
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Neg Infliction of Emotional Distress
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No duty
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Exceptions allowing negligent infliction of emotional distress to be a cause of action (2)
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- zone of danger
- bystander recovery |
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Zone of Danger
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"near miss"
NC - reasonable foreseeability |
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Bystander Recovery
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Outside zone of danger, but close relationship to victim (e.g., mother - in her home - watches daughter get hit by car while)
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Breach of Duty (GR)
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P must point to D's specific conduct
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Proving Breach (2)
"Specific Conduct" |
- evidence of custom (admissible but not conclusive)
- res ipsa loquitor |
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Res ipsa loquitor (2)
[only allows cause of action to reach jury] |
- event is one which not does not normally occur without negligence
- the injury-causing instrumentality was under exclusive control by D |
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Causation - "But For" test
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D's conduct is the cause in fact of an injury when an injury would not have occurred but for the D's act
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Causation - Alternative Tests (2)
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- substantial factor test
- burden shifting |
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Substantial Factor Test
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used in case with multiple D's and a comingled cause (2 fires meeting)
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Burden Shifting Test
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used with multiple D's and the cause cannot easily be attributed to one or another (e.g., two men shoot but one bullet hits)
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Proximate Cause (GR)
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Proximate cause is a limitation on a D's liability. A person is only liable for those harms which are within the risk of his activity.
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Who wins:
Foreseeable Result and Foreseeable Intervening Cause |
P wins
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Who wins:
Unforeseeable Result and Unforeseeable Intervening Cause |
P loses
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Type of intervening causes which will NOT cut off D's liability (4)
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- subsequent medical malpractice
- negligent rescue - reaction forces - subsequent disease or accident |
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Types of intervening causes which will NOT cut off D's liability if D can ANTICIPATE the intervening cause (3)
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- negligence of 3P (blocked door - hit by car)
- criminal conduct (unlocked garage) - acts of god (tools on roof) |
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Element of Damages in personal injury cases (3)
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- past and future medical expenses
- past and future lost income - pain and suffering |
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Eggshell Plaintiff Rule
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D gets the P as he is
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Defenses to Negligence (3)
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- contributory negligence
- comparative negligence - assumption of risk |
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Contributory Negligence (NC)
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P's failure to use the RELEVANT DEGREE OF CARE for his safety will result in no recovery.
Mentally Retarded given some leeway |
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Ameliorating Doctrine for Contributory Negligence
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Last Clear Chance
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Last Clear Chance
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P can recover in contributory negligence action if D has the last clear chance to avoid the injury and failed to do so
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Assumption of Risk Cases (2)
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- express
- implied total bar to damages |
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Express assumption of risk
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"I'll take my chances"
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Implied assumption of risk (2)
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- P must have knowledge of risk
- D must show evidence that the P's encounter with the risk was voluntary |
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Comparative Negligence Types (2)
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- pure comparative negligence
- modified comparative negligence |
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Pure Comparative Negligence
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P always recover, with damages reduced by percent of P's culpability
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Modified Comparative Negligence
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Same as pure comparative negligence, but if P's culpability exceeds 50% there is no recovery
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Comparative negligence supplants all affirmative defenses except
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express assumption of the risk
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Strict Liability Classes (3)
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- wild animals
- inherently dangerous activities - product related injury |
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Liability for domestic animals
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no strict liability unless D knows of the animals dangerous propensities in advance
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Wild Animals
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strictly liable so long as P does not perform extreme conduct (hand in tiger's mouth)
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Elements of Abnormally Dangerous Activities (3)
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- the activity is incapable of being conduction except with high risk
- if harm occurs, it is likely to be severe - the activity must be uncommon |
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Product Liability - Theories to Recover
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- strict liability
- negligence |
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Elements for a Product Liability case (4)
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- D must be a merchant seller of goods
- product must be defective - the defect existed when the product left the seller's hands (ordinary channels) - P make a foreseeable use of the product |
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Two types of product defect
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- manufacturing
- design |
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Manufacturing Defect
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Product has an anomaly and the difference between the product in hand and all others is the differnce which made it dangerous
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Design Defect
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A problem common to each unit that the seller could have eliminated through a reasonable alternative design
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Defense to Product Liability (Traditional)
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Conduct that is the equivalent of contributory negligence will not bar recovery but conduct which is the equivalent of assumption of the risk will bar recovery
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Defense to Product Liability (Comparative Fault)
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A majority of comparative fault jurisdictions no apply comparative fault principles in strict products liability (P negl might reduce recovery)
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Under negligence on products liability who remains liable?
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on the manufacturer (wholesales and retailers are released)
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Does an adequate warning insulate D from strict liability?
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Yes
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What type of USE must a manufacturer take into consideration when designing products?
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foreseeable
(obvious intended as well) |
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Is strict liability a COA if the product is incidental to the performance of a service?
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No
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Private Nuisance
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conduct that causes a substantial and unreasonable interference with the use and enjoyment of land
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Remedies for Private Nuisance
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court will weigh the equities of the parties in deciding whether to enjoin a D's activity
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Public Nuisance
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conduct that causes a physical or moral harm to the public in general
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When may a private P seek a claim under public nuisance?
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only if the P has suffered harm different from the general public
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Relationships for Vicarious Liability (3)
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- employer/employee
- parent/child - automobile owner/driver |
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Vicarious Liability for Employee
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the employer is vicariously liable for employees torts committed in the scope of their employment
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Frolic and Detour
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- detour is a minor variance and employer is still liable
- frolic is a major variance and employer is not liable |
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Vicarious Liability and Intentional Torts
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Only if violence is part of the job (bouncer, bounty hunter)
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Vicarious Liability for Independent Contractors
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None, except party cannot use independent contraction for inherently dangerous activities (and public policy exception)
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Automobile Owner - Driver liability (GR)
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No vicarious liability
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Exception Auto Owner - Driver liability
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when driver is performing an errand for the owner, liability may be premised on agency statutes
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Family Car States
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owner is vicariously liable for the torts of any household member driving with the owner's permission
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Family Purpose States (NC) (2)
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owner is vicariously liable
- same household - for use and pleasure or convenience of household |
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Permissive Use States
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owner is vicariously liable for the torts of anyone using car with permission
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Parent-Child Vicarious Liability
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None - but look to direct liability
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NC liability for children
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up to $2000 for a child's willful destruction of property
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Types of Joint and Several Liability (2)
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- concert of action
- indivisible harm |
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Joint and Several Liability (GR)
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Each defendant can be liable for the entire damage incurred
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Concert of Action
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Two or more people act where one commits tort
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Indivisible Harm
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Two or more people act where there is not way to apportion damages
places burden on D's to prove which is at fault |
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Contribution - Traditional Rule (NC)
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Paying D recovers proportional shares from each D
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Comparative Contribution (Modern)
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Paying D recovers from each D based on their relative fault
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Wrongful Death
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brought by decedent's family seeking relief for loss
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Survival Actions
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brought by decedent's ESTATE based on claims which the decedent could have sue on
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Which tort actions do not survive death in NC (2)
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- defamation
- false imprisonment |
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Type of immunity (3)
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- family
- governmental - charity |
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Family Immunity
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NC eliminates spouses and negligent drive by child to parent
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Governmental Immunity (3)
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only when acting as sovereign
- police - fire - military |
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Exception to Governmental Immunity
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government engaged in proprietary function which could be performed by citizens (municipal parking garage)
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Charitable Immunity (not in NC)
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abolished in most jurisdictions, including NC
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