Torts

Front 1

What are the elements of negligence?

Back 1

1. D has a duty to use reasonable care
2. D breaches the duty by failing to conform to required standard
3. Causal link between breach and injury
4. Loss or damage results

Front 2

Factual aspect of duty

Back 2

There is a duty if D can foresee a risk of harm, and the duty is breached if D can take measures that are reasonable to prevent the harm

Front 3

Legal aspect of duty

Back 3

Distinction between misfeasance (duty) and nonfeasance (no failure to act on a situation person has no responsibility for)

Front 4

What are some examples of special relationships?

Back 4

1. Carrier & passenger
2. Innkeeper & guest
3. Custodian & ward
4. Employer & employee
5. Inviter & business invitee
6. Instrumentality under D's control caused harm

Front 5

When does a Dr. have a duty to warn a patient's future victim?

Back 5

When Dr. has (or should have) determined the IDENTIFIABLE victim to be in danger

Front 6

What is the general standard of negligence?

Back 6

Must use degree of care that an ordinarily careful person would under the same or similar circumstances

(Reasonable person standard)

Front 7

What is the specific standard of negligence?

Back 7

The thing D did or omitted to do

Front 8

What is the Emergency Doctrine?

Back 8

When a person is excited, he is permitted to make a bigger mistake, but still must behave how a reasonable person would

If D creates the emergency, he does not get the benefit of the emergency doctrine

Front 9

What is the child standard of care?

Back 9

Compare to reasonable child unless:
(1) Inherently dangerous, or
(2) "Adult only" activities

Front 10

What is the disabled person standard of care?

Back 10

Cannot be higher or lower than regular standard, but can be different

Compares D to reasonable blind/deaf/disabled person

Front 11

When are mentally ill people not liable for negligence?

Back 11

1. Must be no forewarning that attack of insanity will occur, AND
2. Affects ability to understand and appreciate the duty to use ordinary care, OR
3. Affects ability to control instrumentality in an ordinarily prudent manner

Front 12

Policy reasons for holding an insane person liable

Back 12

1. Where one of two innocent people must suffer a loss, it should be the one who occasioned it
2. Induce those interested in the estate of the insane person to restrain or control him
3. The fear that an insanity defense would lead to false claims of insanity to avoid liability

Front 13

Policy reason for an expert standard of care

Back 13

A reasonable person undergoing an act that requires expertise would make sure they were properly trained and knowledgable

Front 14

What is respondeat superior?

Back 14

An employer is responsible for an employee acting in the scope of the job

Front 15

What are customs?

Back 15

Well defined and regular usage or way of doing a specific thing among a group of people such as a trade, calling, or profession

Composite judgment of a group of people who consistently encounter this type of problem and deal with it in a certain way

Front 16

How are expert customs used as evidence?

Back 16

Evidence of custom is relevant & admissible, but not binding

Front 17

Policy reason for customs

Back 17

Odds are that customs will be reasonable since they are based on the standards of a large group

Front 18

Expert testimony re: customs

Back 18

Must be used unless negligence is so extreme that a lay person would know it is not reasonable

Front 19

Physician standard of care

Back 19

Standards are set by physicians, but must be followed

Front 20

How are customs of physicians used as evidence?

Back 20

They are binding and controlling

Front 21

What kind of expert testimony would suffice to show physician was negligent?

Back 21

Must say that D's actions differed from the standard of practice in the professional community

Not sufficient for expert to simply say that he would have done something different

Front 22

Locality Rule

Back 22

Has to be the custom in the community/locality

Some jurisdictions focus on national standard

Front 23

What are the elements for negligence based on lack of consent (for Dr.s)?

Back 23

1. Duty to disclose
2. Causation
3. Harm

Front 24

What do physicians have a duty to disclose?

Back 24

Majority: Material risks (anything likely to affect a P's decision)

Minority: Professional standard of care (any risks that are required to be disclosed by prevailing medical practice in the community)

Front 25

How is a causal link between failure to disclose a medical risk and harm shown?

Back 25

Majority: Objective - a reasonable P would not have consented

Minority: Subjective - P would not have consented

Front 26

Defenses available to Dr. who failed to get consent

Back 26

1. Risks ought to be known by everyone, or are known by this P.

2. Disclosure can be detrimental to P's total health
3. Emergency

Front 27

When is there medical battery rather than negligence?

Back 27

Battery if Dr. doesn't tell P of:
1. Nature of invasion, or
2. Extent of harm expected to occur

No battery if there is a unilateral mistake as to mere risk of harm (then negligence)

Front 28

Does a land possessor have a duty to foresee a trespasser?

Back 28

No duty to anticipate foreseeable trespassers except constant trespassers on limited area of land

Front 29

What is a land possessor's duty to a trespasser who is in danger from an activity?

Back 29

Land possessor must use reasonable care to warn or prevent harm only once trespasser is discovered

Only required to use means at hand

Front 30

What is a land possessor's duty to a trespasser who is in danger from an artificial condition?

Back 30

No duty to inspect or anticipate trespassers (except constant trespassers)

Duty to warn discovered trespasser if trespasser won't discover danger on own

Never have to correct danger

May not apply to natural conditions

Front 31

What are licensees?

Back 31

People who are on land with possessor's consent, but for licensee's own purpose (i.e. social guests)

Consent can be implied based on community custom (i.e. door to door salesmen)

Front 32

What is a possessor's duty to a licensee?

Back 32

Possessor must anticipate the presence of foreseeable licensee

Possessor has the duty warn of any dangers that possessor knows of that licensee does not know of

Licensee must take possessor's land as he found it

Front 33

What are the two types of invitees?

Back 33

Business visitor

Public invitee

Front 34

What is a business visitor?

Back 34

A person invited to enter or remain on land to further the possessor's business or economic interest

Front 35

What is a public invitee?

Back 35

A person invited to enter or remain on land as a member of the public for a purpose for which the land is open to the public

Front 36

What is a possessor's duty to an invitee?

Back 36

A possessor must foresee an invitee and has a duty to protect invitee from harm when B<PL

Front 37

When does possessor have a duty to trespassing children?

Back 37

Only applies to artificial conditions:
1. Possessor knows or has reason to know that children trespass;
2. Possessor knows or has reason to know of dangerous condition;
3. Possessor fails to use reasonable care to eliminate risk; AND
4. Children do not discover the danger or realize the risk

Front 38

What does Cardozo say about foreseeability?

Back 38

Must be a foreseeable risk to specific P

(Most cases that involve scope of liability issues resolve it as an issue of proximate cause, not of duty, but the few that do view it as duty follow Cardozo)

Front 39

What does Andrews say about foreseeability? (Hindsight approach)

Back 39

Risk can be foreseeable to any V

Removes all ignorance of facts in analysis

Foresight test to determine negligence + hindsight test to determine proximate cause

Front 40

What is the Wagon Mound approach to foreseeability?

Back 40

Could the type of accident have been foreseen (and should it have been avoided based on applying utility of conduct/magnitude of risk)

Have to foresee negligence AND foresee harm using reasonable person standard

Front 41

What is the characterization rule?

Back 41

The more generally the type of accident is characterized, the more P is likely to recover & vice versa

General - Don't have to foresee details (i.e. explosion not foreseeable, but fire was and explosion is a type of fire)

Specific - Must foresee specific type of risk (i.e. splashing accident due to displacement ≠ splashing accident due to disruption