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34 Cards in this Set

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Duty of care owed by children (Negligence)
Children under the age of 4 are incapable of negligence. Children owe the rest of us the care of a hypothetical child of similar age, experience and intelligence acting under circumstance (this standard is very subjective (pro-D standard of care). EXCEPTION for children between 4-18 engaged in adult activity --> Regular reasonable person standard. "Adult activity" -- operating a vehicle with a motor, ie) tractor, snowmobile, jetski, car. Note -- states differ as to whether hunting is an adult activity.
Duty of care owed by professionals (Negligence)
A professional actor (often a doctor) owes clients or patients that care of an average member of that profession practicing in a similar community. (NOTE: Look and see what other professionals actually do, as contrasted with regular reasonable person standard which compares D to hypothetical reasonable person). So P must bring in an expert witness who can educate jury about what is customarily done by others do in the profession). Definition of "community" -- this will depend on if you are dealing with a primary care doctor (compare small town doctrors to small town doctors and big city doctors) or specialists (compare to other brain surgeons, other heart doctors).
Duty of care owed by possessors of land to undiscovered trespassers
they are owed no duty of care by land possessors regardless of how they get hurt -- will always lose neglience claim against possessor
Duty of care owed by possessors of land to discovered/anticipated trespassers
(there has been a repeated pattern of trespassing in the past): With regard to activities, the possessor owes his the plain reasonable person standard of care. With regard to conditions, the posessor owes him a duty of care only when i) condition is artificial (built by humans), so no duty of care regarding natural conditions on the land; ii) condition is highly dangerous, capable of killing/maiming (no duty with regard to slightly dangerous conditions); iii) condition must be concealed from the trespasser (no duty to protect from an open/obvious condition); iv) condition must be one that the possessor knew about in advance. Briefly, ALL KNOWN MANMADE DEATH TRAPS;
Duty of care owed by possessors of land to licensees
(enter land w/permission but don't confer economic benefit on the land, ie, social guest) --> activities -- reasonable person acting under similar circumstances --> conditions -- possessor must protect only when i) condition is concealed from licensee and ii) known in advance by the possessor. Possessors must protect their licensees from ALL KNOWN TRAPS.
Duty of care owed by possessors of land to invitees
Invitees (someone who enters land to confer economic benefit on possessor OR b/c land is open to the public at large); activities -- plain reasonable person; conditions -- i) concealed condition and ii) condition must be one that possessor either knew about in advance or could have discovered through reasonable inspection (kind of inspection that would be undertaken by a hypothetical reasonable person would undertake -- but doesn't inspect every day/week, reasonable inspection takes into account costs, dangers, etc). Briefly --> possessor must protect invitees from all reasonably knowable traps on the land.
Firefighters Rule
Firefighters and police officers can never recover for injuries that are inherent risks of their work.
Duty of Care owed by possessor of land to Child Trespassers
They are entitled to reasonably prudent person care even when they are trespassers with regard to ARTIFICIAL CONDITIONS on the land. (ASK: 1) how foreseeable was it that children would trespass? (is there something on your land that will be attractive or lure kids in?; and 2) to what degree can anticpated child trespassers appreciate the danger and protect themselves?
Possessor of land with a dangerous condition can satisfy his duty associated with a dangerous condition by:
1) repair the problem OR 2) give an adequate warning. (NOTE: wet floor is a common concealed and dangerous condition) --> warnings satisfy duties w/regard to dangerous conditions.
Statutory standards of care/Negligence Per Se
"Class of person, class of risk" test. P can use statutory standard (and thus D will be found guilty of negligence per se) when (1) P is class of that class of persons that the statute seeks to protect AND 2) risk that materialized is in the class of risk that the statute was trying to prevent. NOTE: if P can't meet this standard, he has to proceed under plain reasonable person standard of care. EXCPETION 1: Even if the "class of person, class of risk" test is met, don't use the test if compliance would have been more dangerous than violation, ie) crossing the double yellow line statute shouldn't be used when driver would have ru nover kid by not crossing yellow line. EXCEPTION 2: if compliance would have been impossible under the circumstances, don't use statutory standard. Instead, use plain reasonable person standard.
Duties to Act Affirmatively/Rescue
No duties to act affirmatively, no duty to rescue a person in peril. EXCEPTIONS: 1. If parties had a preexisting relationship (emplyer-emplyee, common carrier/inn keeper and patron, land possessor and business invitee, this will trigger a duty to rescue). 2. If D was cause of the peril (even non-negligently, D has a duty to rescue the P. If D has a duty to rescue, the duty of care is reasonable person, BUT D doesn't have to put his own life in danger, ie) don't have to run into burning building. But a gratuitous rescuer will be held liable if they botch the rescue. If you choose to rescue, you have to do it as a reasonable person would do it.
Special Duty for Negligent Infliction of Emotional Distress
P must show 3 things for NIED: (1) D was negligent under one of the negligence standards (2) Although P did not sustain any physical trauma, he was in the zone of physical danger, ie, it was a "near miss" (3) Subsequent physical manifestations (symptoms that are objectively viewable) after (this can be right after or a couple days later the distress, ie) miscarriage or heart attack. (NOTE, w/NIED, P won't sustain any direct trauma to his body -- that would be a regular negligence case). BYSTANDER NIED Claim --> substitute "near miss" element with "bystander was contemporaneous witness of a negligent injury inflicted on a close family member that causes the P to experience an unpleasant emotion, ie) grief, melancholoy, sadness.
NIED vs. IIED
Difference is that in IIED, the D is acting intentionally, whereas in NIED, D is acting carelessly. Don't go to elements first.
BREACH (second element in negligence action)
P must (1) specific wrongful conduct that D committed; (2) explain why that conduct is wrongful. (NOTE: you look for breach in the facts, not the law. Also, make sure you explain why the conduct is wrongul.
Doctrine of Res Ipsa Loquitor (Breach Element)
P doesn't know what D did wrong, but P must convince the court that (1) Accident that occurred is one normally associated with negligence (this doesn't happen unless someone screwed up); (2) Accident that occurred would normally have been due to someone in D's position (show control). If you can show these elements, you can get to the jury -- not enough to get a verdict for the plaintiff.
Factual Causation (One Defendant)
P must show a linkage/connection between the breach and the ultimate damages suffered. P does this through the "BUT FOR" test. ASK: Whether but for the breach, P would be healthy today.
Factual Causation (Multiple Defendants)
Don't use but for test. MERGED CAUSES, standard is SUBSTANTIAL FACTOR TEST: Ask whether each breach was theoretically capable of causing the full harm by itself. If it was --> substantial factor. If both breaches were substantial factors --> both D's are jointly liable. UNKNOWABLE CAUSES (could have been one of several Ds): Each D must show exonerate themselves. If they can't, the Ds are jointly liable.
Proximate Causation (Direct/Indirect Cause)
P must show that liability is fair and fairness is equated with foreseeability. Tool for analysis is forseeability/fairness. DIRECT CAUSE CASE: D commits the breach and P suffers immediately. Injuries are almost always foreseeable and D is almost always the proximate cause. INDIRECT CAUSE: D commits breach, other stuff happens in the middle, only after which P suffers full harm. (Time lag with intervening causes). Well-Settled Quartet (four fact patterns in which end result is foreseeable, liability is fair (1) Intervening medical malpractic (but doctor who screwed up is also liable). (2) Intervening negligent rescue; (3) D intervening protection or reaction forces; (4) Subsequent disease of accident. If not in these four categories, ask yourself, what is the breach, and what makes us nervous about that, ie) serving bad shrimp --> food poisoning. so if P has broken arm, not fair to hold person who served bad shrimp liable because they are not proximate cause.
Damages
Eggshell Skull Rule of damages: Once P establihses all other elements of prima facie case of negligence, P recovers for all damages suffered no matter how great in scope. You take your P as you find him. (NOTE: the eggshell skull rule applies to all tort damages, not just negligence)
Affirmative Defenses to Negligence
. 1. Contributory Negligence (rare, only in minority of states); 2. Assumption of the Risk, 3. Comparitive negligence
Comparitive Negligence (affirmative defense to negligence)
D must offer evidence of P's fault, ie) P failed to exercise appropriate care for his own safety -- standard is reasonable prudent person or standard of a statute. After evidence of P's fault, jury will be instructed to assign the P and D their respective degree of fault. Then, P's recovery is reduced based on the fault assigned to P. TWO TYPES OF COMPARITIVE NEGLIGENCE: Pure Comparaitive Negligence (Default) - P always recovers something, even where P was predominantly negligent party. Modified/Partial Comparative Fault: If P's fault greater than 50%, P can't recover
Strict Liability
This means safety precautions are ignored. Strict liability applies to Animals, Abnormally dangerous activity, products.
Strict Liability: Injuries Casue by ANIMALS
Distinguish between type of animal. DOMESTIC ANIMALS owner is not strictly liable for injuries caused by domesticated animal. EXCEPTION: Strict liability will attach if you keep the dog and you have knowledge of its dangerous propensitites and you continue to keep it. What gives knowledge? For example, dog has previously bitten someone. (For bite 1, owner can only be held liable on a negligence theory. For bit 2 on, he can be held strictly liable. WILD ANIMAL: If D keeps a wild animal, he is strictly liable if that wild animal
Strict Liability: Abnormally Dangerous Activity
Indiviudal or business is strictly liable if someone is injured b/c of their abnormally dangerous activity. Test for abnormally dangerous activity (1) activity is one which creates a foreseeable risk of serious harm even when reasonable care is exercised; (2) activity is not a matter of common usage in the community, ie) D is only one doing this. EXAMPLES of abnormally dangerous activities -- blastin/use of explosives, dangerous subtances, ie, anthrax, nuclear energy/radiation
Strict Liability: Products
FOUR ELEMENTS: (1) D is a MERCHANT (one who routinely deals in goods of this type. Note casual sellers are not merchants, service providers are not providers of goods that are provided incidental to the service, commercial lessors -- like rental car company, everyone in the chain of distribution is a merchant -- privity not required); (2) Product must suffer from a DEFECT -- two types of defects; (a) manufacturing defect -- product departs from its intended design in a way that makes it more dangerous than consumers would expect; (b) design defect -- a product has a design defect if there is another way that it could have been constucted that would have i) been safer than version of product actually marketed; ii) economical -- can't be significantly more expensive than version marketed; iii) practical -- can't make product difficult to use, introudce new safety hazards; iv) if product meets i-iii, person injured by it will have strict liability recovery. NOTE: If product has residual risks that cannot be eli
Affirmative Defenses to Strict Liability
Comparative Responsibility --> If P in strict liability case does something stupid, this will serve to reduce recovery and the jury will asssign percentages of fault.
Nuisance
Interference with P's ability to use and enjoy his land to an unreasonable degree. This harm can be inflicted by D acting intentionally, negligently, or w/o any fault at all. In a nuisance case, the courts try to balance the equities.
Vicarious Liability: Employer-Employee
Four relationships: (1) Employer-Employee -- ER liable if tort committed w/in scope of employment, ER can be liable for intentional torts of EE if job generates friction OR where ER has authorized the use of force as part of the EE's job OR if intentional tort is carried out in a misguided effort to carry out the ER's purposes
Vicarious Liability: Hiring Party-Independent Contractor
General rule -- no viacrious liability for hiring party EXCEPTION, if you are a land possessor and an IC hurts an invitee on your property, land possessor is liable (land possessor cannot delegate his duty of care);
Vicarious Liability: Car Owner
Car Owner-Car Driver, Driver is active tort feasor, ie) he borrows the car with permission. Owner is NOT vicarious liable. EXCEPTION: if driver doing an errand for the owner, we would have an agent/principal relationship, and this will trigger vicarious liability.
Vicarious Liability: Parents-Children
Parents are not vicariously liable for the torts of their kids. CAUTION: vicarious liability is a doctrine of last resort. Never use it unless you are unable to hold the defendant directly liable.(ie, parent not vic liable for kid shooting other kid, but if parent left loaded gun on the table, he could be held liable for negligence.
Comparitive Contribution
Jury assigns co-defendants percentage fault.
INDEMNIFICATION
Two circumstances: 1. if you are the vicariously liable party -- you can get paid back fully from the active tort feasor. 2. Any merchant who is not a manfucaturer can be indemnified from the manufacturer
Loss of consortium
If victim of tort is a married person, the non-injured spouse gets a cause of action against the same defendant or defendants. Uninjured spouse can recover three types of damages: (1) loss of services; (2) loss of society/companionship; (3) loss of sexual intimacy