Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
203 Cards in this Set
- Front
- Back
|
DEF: Res Ipsa Loquitur
|
The fact that a particular injury occurred tends to establish the breach of a duty owed
|
|
|
The fact that a particular injury occurred tends to establish the breach of a duty owed. This principle describes _____
|
Res Ipsa Loquitur
|
|
|
For the doctrine of Res Ipsa Loquitur to apply, P must establish that ____
|
The accident would not normally occur unless someone was negligent
|
|
|
A defendant negligently causes a plaintiff to break her leg, and while walking on her crutches, the plaintiff loses her balance and breaks her other leg. This describes a ______
|
A) Dependent intervening force
A dependent intervening force is a normal response or reaction to the situation created by the defendant’s act. This is a subsequent accident situation, where the plaintiff suffers a subsequent injury following her original injury, and the original injury was a substantial factor in causing the second accident. Hence, this is a dependent intervening force case. |
|
|
DEF: Dependent Intervening Force
|
A dependent intervening force is a normal response or reaction to the situation created by the defendant’s act.
|
|
|
A defendant negligently causes a plaintiff to break her leg, and while walking on her crutches, the plaintiff loses her balance and breaks her other leg.
This an example of a _________ force |
Dependent Intervening Force
|
|
|
DEF: Independent Intervening Force
|
Independent intervening forces operate on a situation created by a defendant’s negligence but are independent actions, rather than natural responses or reactions to the situation. Independent intervening forces may be foreseeable where the defendant’s negligence increased the risk that these forces would cause harm to the plaintiff.
|
|
|
Which of the following is NOT considered a dependent intervening Force?
1) “Reaction Forces” 2) Subsequent Medical Malpractice 3) Negligence of a Rescuer 4) An Act of God |
1- An Act of God
Acts of God are not considered dependent intervening forces. Rather, they are independent intervening forces. Even though they are independent intervening forces, however, they will not cut off the defendant’s liability if they are foreseeable. |
|
|
DEF: INDIRECT CAUSE Case
|
Where a force comes into motion after the defendant’s negligent act and combines with that act to cause injury to the plaintiff
Indirect cause cases are those where intervening forces are present. Whether an intervening force will cut off the defendant’s liability for the plaintiff’s injury is determined by foreseeability. If it does cut off the defendant’s liability, it will be a superseding cause, but not all intervening forces in indirect cause cases will be superseding. |
|
|
DEF: Direct Cause Case
|
A direct cause case is one where the facts present an uninterrupted chain of events from the time of the defendant’s negligent act to the time of the plaintiff’s injury. In a direct cause case, there is no external intervening force of any kind.
|
|
|
where the facts present an uninterrupted chain of events from the time of the defendant’s negligent act to the time of the plaintiff’s injury. In a direct cause case, there is no external intervening force of any kind, it is known as _______
|
A DIRECT CAUSE
|
|
|
The SUBSTANTIAL FACTOR Test is applied when?
|
The “substantial factor” test is used for joint causes, where several causes concur to bring about an injury, but any one alone would have been sufficient to cause the injury. In that case, it is sufficient if defendant’s conduct was a “substantial factor” in causing the injury.
|
|
|
IIED:
When Df inflicts severe physical harm on another Exception to Rule |
General Rule = P must be present at the time of the injury; and P must be a close relative of the injured person
EXCEPTION: Where Df’s design was to cause severe distress to the Plaintiff |
|
|
Which of the following is correct for the tort of IIED:
1) Punitive Damages are not permitted 2) Nominal damages are recoverable 3) P’s emotional Distress Must be Severe 4) Physical Injury Must be Established |
3) P’s emotional Distress Must be Severe
|
|
|
Trespass to Land—ELEMENTS
|
(i) An act of physical invasion of the plaintiff’s real property by the defendant;
(ii) Intent on the defendant’s part to bring about a physical invasion of the plaintiff’s real property; and (iii) Causation. All that is necessary to satisfy the first element is a physical invasion of the plaintiff’s land. It is not necessary that the defendant unlawfully enter onto the land. Thus, a trespass exists when a defendant floods a plaintiff’s land, throws a rock onto it, or chases a third person onto it. Furthermore, a trespass to land also exists when a defendant remains on the plaintiff’s land after an otherwise lawful right of entry has lapsed. It is also not necessary for the plaintiff to request that the defendant leave his land. |
|
|
➢ DEF: DEFAMATION
|
A communication that tends to damage the P's reputation
More Specifically: one that tends to diminish the respect, good will, confidence, or esteem in which he is held, or to excite adverse or unpleasant feelings about him |
|
|
INTENTIONAL TORTS
"Extreme Sensitivity of the P" |
The extreme sensitivity of plaintiff is ignored in deciding whether P has a valid cause of action.
|
|
|
Intentional Torts
- Incapacity Defenses? |
There are NO incapacity defenses to intentional torts
|
|
|
DEF: Intent
For Purpose of INTENTIONAL TORTS |
A D has intent if he desires to produce the legally forbidden consequences of the tort
|
|
|
DEF: Intent
For Purpose of INTENTIONAL TORTS |
A D has intent if he desires to produce the legally forbidden consequences of the tort
|
|
|
Does the doctrine of Transferred Intent apply to INTENTIONAL torts?
|
YES
So long as the D desires to produce ANY forbidden consequence, he is liable for ALL OTHER forbidden consequences |
|
|
NEGLIGENCE
- Elements? |
1) Duty
2) Breach of duty 3) Causation 4) Damage |
|
|
NEGLIGENCE
- Elements? |
1) Duty
2) Breach of duty 3) Causation 4) Damage |
|
|
NEGLIGENCE
DEF: Duty |
The obligation to take risk-reducing precautions
|
|
|
NEGLIGENCE
DEF: Duty |
The obligation to take risk-reducing precautions
|
|
|
Negligence - Duty - Two considerations for the exam
|
1) To whom is a duty owed?
2) What is the duty? |
|
|
NEGLIGENCE
WHO IS A DUTY OWED TO? |
FORESEEABLE VICTIMS/ PLAINTIFFS
Therefore: Follows that we do NOT owe a duty to UN-Foreseeable Victims TAKEAWAY = For Bar Purposes → Unforeseeable victims will ALWAYS LOSE |
|
|
NEGLIGENCE
"Zone of Danger" |
FORESEEABLE VICTIMS/ PLAINTIFFS
“OUTSIDE OF THE ZONE OF DANGER” {Pasgraf v. LIRR) RULE: “Outside the ZONE OF DANGER” = P is not owed a duty of care *** TIP *** MBE Purposes—Easier to think of it as: Who is likely to be injured/damaged by Df’s actions? “Zone of Danger” Depends on the particular activity in question |
|
|
Negligence - Duty - Exception
To what class of persons does a negligence defendant owe a duty, despite the fact that they are initially outside the zone of danger? |
RESCUERS!
|
|
|
NEGLIGENCE
DUTY "Rescuers" |
EXCEPTION TO THE "ZONE OF DANGER" REQUIREMENT
Zone of Danger requirement is removed Plaintiff RESCUERS: Can begin the fact pattern very far away and still have right to recover Ex: John wants to go hiking in the mountains. Buys defective rope made by Delta Co. He falls because the rope breaks, loses all his equipment and breaks his leg. Pete comes along—unrelated stranger. He sees John with the broken leg and comes to assistance, going far out of his way to do so, and he himself falls and dies. Pete’s family sues Delta Co. Pete is a RESCUER → he is WITHIN the zone of danger—even though he started the fact pattern very far away |
|
|
NEW YORK RULE
WHEN CAN THERE BE A SPECIAL C/A ON BEHALF OF A FETUS/ UNBORN CHILD? |
1. Df who negligently impacts the body of a pregnant woman
Ex: Patricia drives her car while pregnant. Dave, driving negligently, hits and kills her. A) If Baby is born alive but has defects → Baby will have his own C/A • i.e. two separate lawsuits—P vs. D and Baby vs. D B) If Baby Dies → No C/A on behalf of unborn child *** 2. Doctor Mis-Diagnoses Potential of Birth Defects Ex: Mother goes to doctor for checkup to see if baby is normal. Dr says yes, in reality he’s wrong. If he had done test correctly, defects would’ve been seen. Mom says if I’d known → I would’ve aborted .... Mom can recover costs of caring for that child IN EXCESS of caring for a normal baby -- BUT: CANNOT recover IIED for Mom *** 3. Dr. botches sterilization of Mom or Dad • Botched sterilization + Pregnancy + Parents say if you hadn’t screwed up we wouldn’t have had the baby RULE: Parents cannot recover |
|
|
Negligence - NEW YORK - Pre-natal torts
In New York, does a CHILD have a separate cause of action for injuries sustained as a result of an impact to the body of the pregnant mother? |
Maybe.
1) Child born w injuries → child has its own cause of action in his own name 2) Child never born → no separate cause of action for the child (although the mother has a cause of action for the loss of the child) |
|
|
Negligence - NEW YORK - Pre-natal torts
In New York, what damages, if any can a parent recover if a Dr. misdiagnoses a child's birth defects? |
The parents can recover for the costs of caring for the child that are in addition to the costs of raising a healthy child.
They cannot recover emotion distress |
|
|
Negligence - NEW YORK - Pre-natal torts
In New York, can a parent recover when a child has been born after a botched sterilization? |
NO!!
|
|
|
Negligence - Duty
What is the default duty of care? |
*** THE PLAIN VANILLA RULE ***
RULE: SCOPE OF DUTY ⇒ THE RPP THE REASONABLY PRUDENT PERSON Acting Under Similar Circumstances This is The DEFAULT RULE: it applies in ALL cases—unless some other rule acts to raise/reduce/eliminate the duty Essay Q on Duty—Where No Special Duty Applies…. “Because no special duties are relevant on these facts, the general or default standard of care would govern here. Namely, the care of a reasonably prudent person acting under similar circumstances.” |
|
|
NEGLIGENCE
"Duty" Element ESSAYS: how should you begin your analysis when no SPECIAL DUTY applies? |
*** THE PLAIN VANILLA RULE ***
RULE: SCOPE OF DUTY ⇒ THE RPP “Because no special duties are relevant on these facts, the general or default standard of care would govern here. Namely, the care of a reasonably prudent person acting under similar circumstances.” |
|
|
NEGLIGENCE
DUTY -- RPP "Defendant's Individual Shortcomings" |
Do NOT take ANY of defendant’s shortcomings into account
• RPP = An OBJECTIVE standard; inflexible • Asks defendants to do what in some cases would be impossible / they are incapable of doing • Mental Retardation, Psychotic, Hallucinations, Alzheimers → ALL held to RPP Standard • Novices/ Beginners → RPP Standard Ex: First-time ever skiing → Still held to the RPP Ex: Dave keeps kerosene-soaked rages in his garage over the weekend. Fire starts, spreads to Pete’s house, burns Pete’s house down. Dave has a below-average IQ, did not graduate from elementary school, and was not aware that kerosene was flammable. He says he was utterly unaware of any danger Dave is still held to the RPP Standard—i.e. RPP would have known **** 2 EXCEPTIONS TO THIS RULE **** 1) DF WHO HAS SUPERIOR SKILL OR KNOWLEDGE Held to HIGHER Standard i.e. RPP standard can be moved UPWARD; NOT downward 2) PHYSICAL CHARACTERISTICS OF DF WILL BE BUILT IN—IF—THEY ARE RELEVANT |
|
|
NEGLIGENCE
DUTY -- RPP "Defendant's Individual Physical Characteristics" |
Physical characteristics ARE taken into account if they are relevant.
i.e. height, strength, blindness, etc Ex: Df is Blind and vision is part of the case o Standard = RPP Blind Person Ex: Df is in a wheelchair and mobility is part of the case o Standard = RPP in a wheelchair Ex: 7foot tall man and height is part of the case o Standard = RPP very tall man |
|
|
NEGLIGENCE
DUTY -- RPP "Defendant's Superior Skill/ Knowledge" |
Defendant's superior skill or knowledge ARE taken into account if they are relevant.
• Held to HIGHER Standard i.e. RPP standard can be moved UPWARD; NOT downward Ex: Df is a pro racecar driver → Will be held to higher standard when he drives his minivan to the grocery store (ex: he knows how to deal with skidding better than the RPP → he will be held to this standard) |
|
|
NEGLIGENCE-- Duty Element
RPP = An OBJECTIVE standard; inflexible Do NOT take ANY of defendant’s shortcomings into account WHAT ARE THE 2 EXCEPTIONS TO THIS RULE?? |
1) DF WHO HAS SUPERIOR SKILL OR KNOWLEDGE
Held to HIGHER Standard i.e. RPP standard can be moved UPWARD; NOT downward 2) PHYSICAL CHARACTERISTICS OF DF WILL BE BUILT IN—IF—THEY ARE RELEVANT Ex: Df is Blind and vision is part of the case Standard = RPP Blind Person |
|
|
Negligence - Duty
In assessing the reasonable person standard, what two types of superior skill and knowledge are relevant? |
1) Body of knowledge based on experience w job.
2) Knowledge of an isolated fact relevant to a given situation |
|
|
Negligence - Duty
In what categories of cases is the reasonable person standard displaced? |
1. Negligence Claims Against Children
2. Negligence Claims Against Professionals (i.e. Malpractice) 3. Premises Liability Cases 4. Duty By Statute 5. Duties to Act Affirmatively 6. Negligent Infliction of Emotional Distress (NIED) All of them TRUMP the RPP (Plain Vanilla Rule) if they are present! *** TIP *** ALL 6 WILL. BE. ON. THE EXAM—GUARANTEED!!! |
|
|
Negligence - Duty
WHAT ARE THE SIX SPECIAL STANDARDS OF CARE? |
1. Negligence Claims Against Children
2. Negligence Claims Against Professionals (i.e. Malpractice) 3. Premises Liability Cases 4. Duty By Statute 5. Duties to Act Affirmatively 6. Negligent Infliction of Emotional Distress (NIED) All of them TRUMP the RPP (Plain Vanilla Rule) if they are present! *** TIP *** ALL 6 WILL. BE. ON. THE EXAM—GUARANTEED!!! |
|
|
With regard to a trespass to chattels, intermeddling is defined specifically as ____
|
Conduct by a defendant that in some way directly damages the plaintiff’s chattel
e.g., denting his car, striking his dog, etc. |
|
|
Trespass to Chattels
- Definition? |
an act by the defendant that interferes with a plaintiff’s right of possession in the chattel
"INTERFERENCE" -- Two Forms: 1) Dispossession 2) Intermeddling |
|
|
Trespass to Chattels
"Interference" |
Trespass to Chattels = an act by the defendant that INTERFERES with a plaintiff’s right of possession in the chattel
"INTERFERENCE" -- Two Forms: 1) DISPOSSESSION -- Interference with a plaintiff's lawful possessory right in the chattel. 2) INTERMEDDLING Conduct by a defendant that in some way directly damages the plaintiff’s chattel e.g., denting his car, striking his dog, etc. |
|
|
With regard to a trespass to chattels, DISPOSSESSION is defined specifically as ____
|
Interference with a plaintiff's lawful possessory right in the chattel.
|
|
|
FALSE IMPRISONMENT
indirect threat of force against the plaintiff’s property |
Goes to the CONFINEMENT element
RULE: Sufficient confinement for false imprisonment MAY arise through indirect threats against the plaintiff’s property. i.e., acts or words that reasonably imply that the defendant will use force against the plaintiff’s person or property or persons of the plaintiff’s immediate family. |
|
|
FALSE IMPRISONMENT
A threat of future harm against the plaintiff’s family |
Goes to CONFINEMENT element
RULE: this is NOT sufficient confinement. A threat of harm must be imminent to constitute confinement. A cause of action will not be sustained if a person remains in the area in response to future threats against person or property. |
|
|
FALSE IMPRISONMENT
Reasonable restraint of a suspected shoplifter |
Goes to CONFINEMENT element
RULE: Reasonable restraint of a suspected shoplifter does not constitute sufficient confinement. As long as the detention was reasonable in manner and time, a shopkeeper has a privilege to detain someone he reasonably suspects has shoplifted. |
|
|
When may a private citizen make a felony arrest without a warrant?
|
Only if a felony has in fact been committed and the citizen has reasonable grounds for believing that the person arrested has committed it.
No liability for false imprisonment will attach to the citizen in such a scenario because the arrest is privileged. |
|
|
Private citizen mistakenly makes a felony arrest based on the reasonable belief that the person has committed a felony. RESULT?
|
May be liable for FALSE IMPRISONMENT
RULE: A private citizen may not escape liability for false imprisonment if the arrest is made only on the basis that the citizen reasonably believes that a felony has been committed. Rather, a felony must in fact have been committed for the arrest by the private citizen to be privileged; if no felony took place, the private citizen may be subject to a false imprisonment action. |
|
|
What is the duty of care of a child?
|
Children under 5 are incapable of negligence
Kids 5-18: owe the duty of care of a hypothetical child of similar age, experience, and intelligence acting under similar circumstances * 3 Key Elements 1. Like AGE 2. Like EXPERIENCE 3. Like INTELLIGENCE **Subjective standard – changes from one kid to the next |
|
|
Negligence - Duty
What is the duty owed by a child between the ages of 5 and 18? |
A child between the ages of 4 and 18 is held to standard of one of a hypothetical child of similar age, experience, and intelligence, acting under similar circumstances. This is a subjective test
|
|
|
Negligence - Duty
In what situation will a child between the ages of 4 and 18 be held to a reasonable person standard? |
When they are engaged in an adult activity (e.g. driving)
|
|
|
What is the exception for the duty of care of a child?
|
If a child engaged in adult activity, it’s a regular RPP standard – Adult activity is ALWAYS operating a vehicle with a motor
|
|
|
Negligence - Duty
What is the duty owed by a professional service provider? |
Must use skill and knowledge normally possessed by members of that profession—in good standing—in similar communities
In Other Words: The care of the average member of that profession—in a similar community This is predominantly determined by custom |
|
|
What is a "professional" for the purposes of Negligence?
|
Professionals are people who render services to the public, have special skills or training, and are licensed by the state (doctors, lawyers, dentists, etc.)
|
|
|
What is the duty of medical professionals regarding informed consent?
|
RULE: Doctors have a duty to explain the medical risks of a procedure to the patient PRIOR to undergoing the procedure→ so patient can make an informed decision as to whether/not they want the procedure
EXCEPTIONS;There’s no duty if: 1. Commonly Known Risks o Ex: Anytime there is an invasive procedure → risk of infection 2. When The Patient DECLINES Disclosure o I don’t wanna hear them—it’s just going to freak me out 3. When the Patient is Incompetent (Medically Ill) 4. If Disclosure Would be Harmful o Must be harmful in a way OTHER than a way that would cause the patient to decline the procedure o i.e. “this patient needs this surgery SO BAD that I’m not going to tell him the risks of the surgery”—NO |
|
|
Doctors have a duty to explain the medical risks of a procedure to the patient PRIOR to undergoing the procedure...
THIS IS KNOWN AS? |
doctor's duty of informed consent
|
|
|
What are the 4 Exceptions to the Doctor's Duty of Informed Consent
|
1) Commonly known risks
2) Patient declines information 3) Patient mentally incompetent 4) Disclosure would be medically harmful |
|
|
To assert the defense of property, a defendant using force against another may not:
|
Use force against one with a privilege to enter the property
an actor has a privilege to enter upon the land of another because of necessity, right of reentry, right to enter upon another’s land to recapture chattels, etc., |
|
|
Defense of Property & The use of Force
MISTAKES |
A reasonable mistake is allowed as to the property owner’s right to use force in defense of property, where the mistake involves whether an intrusion has occurred or whether a request to desist is required.
|
|
|
True/ False:
For a TRESPASS TO LAND claim, only the owner of the property has a cause of action |
TRUE
|
|
|
True/ False:
For a TRESPASS TO LAND claim, Damages must be established by P |
FALSE
|
|
|
True/ False:
For a TRESPASS TO LAND claim, Mistakes as to the lawfulness of entry are a defense |
FALSE
|
|
|
True/ False:
For a TRESPASS TO LAND claim, The trespass may occur below the surface of the land or in the air space above it |
FALSE
|
|
|
Damages for CONVERSION are typically calculated by…
|
Fair Market value of the chattel AT THE TIME it was converted
|
|
|
TRESPASS TO CHATTELS—ELEMENTS
|
(i) An act of the defendant that interferes with the plaintiff’s right of possession in the chattel;
(ii) Intent to perform the act bringing about the interference with the plaintiff’s right of possession; (iii) Causation; and (iv) Damages. |
|
|
TRESPASS TO CHATTELS—ELEMENTS
|
(i) An act of the defendant that interferes with the plaintiff’s right of possession in the chattel;
(ii) Intent to perform the act bringing about the interference with the plaintiff’s right of possession; (iii) Causation; and (iv) Damages. |
|
|
What are "Premises Liability Cases?"
|
Negligence cases where someone comes onto real estate → gets hurt by a hazardous object/ condition on that property → then sues the owner of the property for negligence
|
|
|
PREMISES LIABILITY CASES
Where P is hurt by an ACTIVITY on the land—NOT a hazardous condition |
NOT a Premises Liability case!
|
|
|
What are the FOUR categories of PREMISES LIABILITY cases?
|
1) Unknown Trespasser
2) Known Trespassers 3) Licensees 4) Invitees |
|
|
What are the major CATEGORIES of PREMISES LIABILITY cases?
|
1) Unknown Trespasser
2) Known Trespassers 3) Licensees 4) Invitees |
|
|
PREMISES LIABILITY
What are the 4 MAJOR CATEGORIES? |
1) Unknown Trespasser
2) Known Trespassers 3) Licensees 4) Invitees |
|
|
Negligence - Duty
What duty is owed by a possessor of real estate to an undiscovered trespasser? |
No duty owed regardless of whether hurt by activity or condition
therefore: they will ALWAYS lose a negligence claim (b/c they are always missing element #1—duty) |
|
|
DEF: "Known Trespasser"
|
Includes two kinds of people
1. ANTICIPATED trespassers-- as well as 2. Those KNOWN to be on the land/ SHOULD HAVE KNOWN ANTICIPATED TRESPASSERS RULE: Should ANTICIPATE trespassing—when there has been trespassing in the past |
|
|
DEF: "Known Trespasser"
|
Includes two kinds of people
1. ANTICIPATED trespassers--- as well as 2. Those KNOWN to be on the land/ SHOULD HAVE KNOWN ANTICIPATED TRESPASSERS RULE: Should ANTICIPATE trespassing—when there has been trespassing in the past |
|
|
Negligence - Duty
What is the duty owed by a possessor of land to a KNOWN (or anticipated) trespasser? |
1) Duty re: Activities → RPP
2) Duty re: HAZARDOUS CONDITIONS → duty to protect if: i. Condition is artificial ii. Condition is highly dangerous iii. Condition is concealed iv. Condition is known by the owner |
|
|
Negligence - Duty
What is the duty owed by a possessor of land to a KNOWN (or anticipated) trespasser? |
1) Duty re: Activities → RPP
2) Duty re: HAZARDOUS CONDITIONS → duty to protect if: i. Condition is artificial ii. Condition is highly dangerous iii. Condition is concealed iv. Condition is known by the owner |
|
|
PREMISES LIABILITY
KNOWN TRESPASSERS "Artificial Conditions" |
OVERVIEW: Duty owed to KNOWN TRESPASSERS
HAZARDOUS CONDITIONS → duty to protect if: i. Condition is ARTICIAL ii. Condition is highly dangerous iii. Condition is concealed iv. Condition is known by the owner ------------------------------------------- RULE: Duty only arises when the condition is an ARTIFICIAL condition •DEF:: Artificial: Built by humans Vs. a “Natural” Condition Possessor owes NO DUTY to protect from NATURAL conditions on the land Ex: Landslides, snow, ice, rockslides, white water rapids, quicksand |
|
|
PREMISES LIABILITY
KNOWN TRESPASSERS "Highly Dangerous Conditions" |
OVERVIEW: Duty owed to KNOWN TRESPASSERS
HAZARDOUS CONDITIONS → duty to protect if: i. Condition is artificial ii. Condition is HIGHLY DANGEROUS *** iii. Condition is concealed iv. Condition is known by the owner -------------------------------------------------- RULE: "HIGHLY DANGEROUS" = Something that can kill or maim/ SBI (Serious Bodily Injury) Vs. Conditions that are only moderately dangerous → no duty owed •Ex: Loose Bannister: only 3 steps—person may slip and twist their back—not highly dangerous |
|
|
PREMISES LIABILITY
KNOWN TRESPASSERS "Concealed Conditions" |
OVERVIEW: Duty owed to KNOWN TRESPASSERS
HAZARDOUS CONDITIONS → duty to protect if: i. Condition is artificial ii. Condition is highly dangerous iii. Condition is *CONCEALED* iv. Condition is known by the owner ---------------------------------------------------• CONCEALED = Trespasser doesn’t know that it is there RULE: No duty to protect from OPEN AND OBVIOUS hazards ex: Sawmill where large chunks of trees are cut with giant ban-saws operating → no duty b/c these hazards are open and obvious |
|
|
PREMISES LIABILITY
KNOWN TRESPASSERS "Natural Conditions" |
Possessor owes NO DUTY to protect from NATURAL conditions on the land
Ex: Landslides, snow, ice, rockslides, white water rapids, quicksand |
|
|
An express consent will be valid unless it was:
|
Made by mistake induced by the defendant
Express consent exists when the plaintiff has expressly shown a willingness to submit to the defendant’s conduct. If the plaintiff consents by mistake, the consent will still be valid, unless the defendant caused the mistake or knew of the mistake and took advantage of it. |
|
|
DEF: Express Consent
|
When the plaintiff has expressly shown a willingness to submit to the defendant’s conduct.
|
|
|
EXPRESS CONSENT
Where P gives consent by MISTAKE |
If the plaintiff consents by mistake, the consent will still be valid, unless the defendant caused the mistake or knew of the mistake and took advantage of it.
|
|
|
EXPRESS CONSENT
Where consent is induced by FRAUD |
GENERAL RULE:
If the express consent was induced by fraud, the consent will not be a defense for the defendant. HOWEVER: An express consent will still be VALID if it was induced by fraud as to a COLLATERAL MATTER. |
|
|
EXPRESS CONSENT
Where consent is induced by DURESS |
GENERAL RULE
Consent obtained by duress will generally be held invalid. EXCEPTION express consent will still be valid if it was induced by threats of FUTURE ACTION or of future economic deprivation |
|
|
Which of the following is required for a shopkeeper who detains someone suspected of shoplifting to avoid liability for false imprisonment?
a) A theft has in fact occurred b) Detention was only for a reasonable time c) Shopkeeper did not use force |
b) Detention was only for a reasonable time
** The detention also must be only for the purpose of making an investigation. |
|
|
What are the TWO requirements for a shopkeeper who detains someone suspected of shoplifting to avoid liability for false imprisonment?
|
1) Detention only for a REASONABLE TIME
2) Detention is only for the purpose of making an INVESTIGATION |
|
|
Is a shopkeeper liable for false imprisonment when he detains someone who he mistakenly believes shoplifted items from his store?
|
NO --> SHOPKEEPER's PRIVILEGE applies as long as the shopkeeper reasonably believed a theft had occurred, even if mistaken.
|
|
|
SHOPKEEPER'S PRIVILEGE
|
Allows a shopkeeper to detain someone he REASONABLY believes shoplifted items, so long as....
1) Detention only for a REASONABLE TIME 2) Detention is only for the purpose of making an INVESTIGATION |
|
|
Shopkeeper's Privilege
Use of Force? |
DEADLY Force -- NOT allowed
NON-DEADLY Force-- may be used if reasonably applied |
|
|
TRESPASS TO LAND-- Elements?
|
1) Act of PHYSICAL INVASION of P's real property
2) INTENT to bring about a physical invasion 3) CAUSATION "INTENT" - Not necessarily the intent to trespass (i.e. P can be mistaken as to whose property he is on and still be a trespasser) - BUT remember: Intent element is satisfied if D sets into a motion a series of events which make it SUBSTANTIALLY CERTAIN that such a consequence will occur |
|
|
TRESPASS TO LAND
Defendant's reasonable mistake as to whose land he is on |
IRRELEVANT
- Not necessarily the intent to trespass (i.e. P can be mistaken as to whose property he is on and still be a trespasser) - BUT remember: Intent element is satisfied if D sets into a motion a series of events which make it SUBSTANTIALLY CERTAIN that such a consequence will occur |
|
|
TRESPASS TO LAND-- Elements?
|
1) Act of PHYSICAL INVASION of P's real property
2) INTENT to bring about a physical invasion 3) CAUSATION "INTENT" - Not necessarily the intent to trespass (i.e. P can be mistaken as to whose property he is on and still be a trespasser) - BUT remember: Intent element is satisfied if D sets into a motion a series of events which make it SUBSTANTIALLY CERTAIN that such a consequence will occur |
|
|
NEGLIGENCE-- Duty/Breach
Using INDUSTRY STANDARDS to establish the Duty element |
Industry standards of conduct do NOT establish a CONCLUSIVE test for determining whether specific actions constitute a breach of a duty owed to someone!
They are ADMISSIBLE as evidence of an appropriate standard of care, but they are NOT conclusive! |
|
|
TORTS COMMITTED BY CHILDREN
What is the effect of statutes that make parents liable for torts committed by their children? |
Does NOT have the effect of negating the child's personal liability-- it merely EXTENDS liability where there was none at common law!
|
|
|
What is the primary difference between PUBLIC Necessity and PRIVATE necessity?
|
In PRIVATE Necessity-- the defense is QUALIFIED-- such that the actor must still pay for any actual damage he causes
Ex: bike rider riding on the sidewalk is forced to swerve onto P's property to avoid being struck by a car... Bike rider is privileged to enter onto the land, but is forced to pay for damage done to P's property |
|
|
PRIVILEGE OF NECESSITY-- Rule?
|
A person may interfere with the property of another where...
1) it is reasonably and apparently necessary... 2) to avoid threatened injury from a natural or other force... AND 3) the threatened injury is SUBSTANTIALLY more serious than the invasion it seeks to avert |
|
|
INVASION OF PRIVACY
Where the invasion involves Public Disclosure of Private Facts About the Plaintiff.. |
P must show...
1) that the publication was of PRIVATE information about the plaintiff... and 2) That its public disclosure would be HIGHLY OFFENSIVE to a reasonable person "PRIVATE INFORMATION" * No liability for publication of matters occurring in a PUBLIC PLACE (b/c the information is no longer "private") -- "Public Place" is not limited to property owned by public authorities... it includes all areas open to the public, including the entrance to a BUSINESS |
|
|
INVASION OF PRIVACY
Public Disclosure of Private Facts About the Plaintiff ELEMENTS? |
P must show...
1) that the publication was of PRIVATE information about the plaintiff... and 2) That its public disclosure would be HIGHLY OFFENSIVE to a reasonable person "PRIVATE INFORMATION" * No liability for publication of matters occurring in a PUBLIC PLACE (b/c the information is no longer "private") -- "Public Place" is not limited to property owned by public authorities... it includes all areas open to the public, including the entrance to a BUSINESS |
|
|
Invasion of Privacy
What is a "Public Place" for the purposes of this rule? |
-- "Public Place" is not limited to property owned by public authorities... it includes all areas open to the public, including the entrance to a BUSINESS
* No liability for publication of matters occurring in a PUBLIC PLACE (b/c the information is no longer "private") |
|
|
INDEMNIFICATION
General Rule? |
One who is held liable for damages caused by another simply because of his relationship to that person may seek INDEMNIFICATION from the person whose conduct actually caused the damage
Ex: Employer may seek from employee if employee was the only one at fault Employer/Employee OK to include indemnification clause in employment K |
|
|
CONTRIBUTION
Definition? |
Device whereby:
1) responsibility is APPORTIONED among those who are at fault, and... 2) any defendant required to pay more than his share of damages to have a claim against any other jointly liable parties for the excess |
|
|
NEGLIGENCE
Punitive Damages |
Recoverable ONLY if the defendant's conduct is RECKLESS, MALICIOUS or WILLFUL and WANTON
|
|
|
NEGLIGENCE
Nominal Damages |
NOT available!
|
|
|
Negligent Infliction of Emotional Distress (NIED)
-RULE |
Defendant breaches a DUTY to avoid NIED when...
1) Df creates a FORESEEABLE RISK OF INJURY to P... 2) by causing a THREAT of PHYSICAL IMPACT... 3) that leads to emotional distress -- Must be demonstrated by PHYSICAL INJURY, rather than purely emotional distress! (physical manifestations of psychological trauma are enough) ZONE OF DANGER - To recover, P's distress must be caused by a threat of impact...AND... P must have been WITHIN THE ZONE DANGER In Other Words: if P is too far away when the accident happens-- P is an unforeseeable plaintiff and cannot recover |
|
|
Negligent Infliction of Emotional Distress (NIED)
-RULE |
Defendant breaches a DUTY to avoid NIED when...
1) Df creates a FORESEEABLE RISK OF INJURY to P... 2) by causing a THREAT of PHYSICAL IMPACT... 3) that leads to emotional distress -- Must be demonstrated by PHYSICAL INJURY, rather than purely emotional distress! (physical manifestations of psychological trauma are enough) ZONE OF DANGER - To recover, P's distress must be caused by a threat of impact...AND... P must have been WITHIN THE ZONE DANGER In Other Words: if P is too far away when the accident happens-- P is an unforeseeable plaintiff and cannot recover |
|
|
Which requires PHYSICAL SYMPTOMS...
Negligent Infliction of Emotional Distress (NIED)... OR Intentional Infliction of Emotional Distress (IIED) ?? |
NEGLIGENT Infliction of Emotional Distress!
|
|
|
DEFAMATION
A party's statements in court are deemed _____ privilege. |
ABSOLUTE privilege
In Other words: the privilege is not affected by a showing of... malice, abuse or excessive publication... AND-- because the person is testifying in court-- the statement is privileged REGARDLESS of its truth or falsity - THEREFORE: it does not matter whether Df is lying or testifying out of malice |
|
|
DEFAMATION
What is the benefit of Absolute privileges over Qualified privileges, other than the fact that they cannot be lost? |
Absolute privileges are NOT affected by a showing of...
- Malice - Abuse, - Excessive Publication |
|
|
"FALSE LIGHT" Invasion of Privacy
Elements/ Rule? |
P must show...
1) D published facts about P placing P in a FALSE LIGHT in the public eye... and 2) The "False Light" must be something that would be HIGHLY OFFENSIVE to a reasonable person under the circumstances "Public Property" -- Irrelevant for False Light Invasion of Privacy-- can occur on public or private property! ECONOMIC HARM NOT REQUIRED - In other words: P need not prove Special Damages (emotional distress and mental anguish are sufficient damages on their own) |
|
|
"FALSE LIGHT" Invasion of Privacy
Economic Harm |
NOT REQUIRED!!
- In other words: P need not prove Special Damages (emotional distress and mental anguish are sufficient damages on their own) |
|
|
"FALSE LIGHT" Invasion of Privacy
Elements/ Rule? |
P must show...
1) D published facts about P placing P in a FALSE LIGHT in the public eye... and 2) The "False Light" must be something that would be HIGHLY OFFENSIVE to a reasonable person under the circumstances "Public Property" -- Irrelevant for False Light Invasion of Privacy-- can occur on public or private property! |
|
|
Will "beware of dog" signs protect a landowner from liability where a person trespasses onto their land and suffers an injury as a result of the dog?
|
NO!
A landowner may not intentionally use a "VICIOUS DOG" to protect his property... GENERAL RULE: One may use only REASONABLE force to defend property -- May NOT use... (a) Force that will cause DEATH or SBI (b) INDIRECT deadly force-- such as a trap, spring gun, or VICIOUS DOG when such force could not be lawfully directly used (e.g against a mere trespasser) ** Landowner who protects his property from TRESPASSERS by keeping a vicious watchdog he knows is likely to cause SBI is liable based on INTENTIONAL TORT principles ** Fact that the owner posts warning signs does NOT relieve the owner of liability if he INTENTIONALLY uses a "vicious" dog that he knows is likely to cause SBI |
|
|
Defense of Property
General Rule? |
GENERAL RULE: One may use only REASONABLE force to defend property
-- May NOT use... (a) Force that will cause DEATH or SBI (b) INDIRECT deadly force-- such as a trap, spring gun, or VICIOUS DOG when such force could not be lawfully directly used (e.g against a mere trespasser) |
|
|
Defense of Property
Use of VICIOUS DOGS |
** Landowner who protects his property from TRESPASSERS by keeping a vicious watchdog he knows is likely to cause SBI is liable based on INTENTIONAL TORT principles
** Fact that the owner posts warning signs does NOT relieve the owner of liability if he INTENTIONALLY uses a "vicious" dog that he knows is likely to cause SBI |
|
|
DEFAMATION
Slander Per Se = Damages are Presumed.... WHAT DOES THIS MEAN? |
Means that as long as the statement is understood in a defamatory sense, the accusation need not be BELIEVED to be actionable
The actionable injury comes from merely speaking the words-- regardless of whether or not the listener believes them to be true Therefore: P may recover damages NOT ONLY to reputation, but also for humiliation and mental distress! |
|
|
RESPONDEAT SUPERIOR
Independent Contractors |
* GENERAL RULE *
Employer is NOT liable for tortious acts of an independent contractor FACTORS: Agent is likely to be an IC if... 1) DISTINCT BUSINESS He is engaged in a distinct business of his own 2) CONTROL He controls the manner and method by which he performs tasks 3) PARTICULAR JOB He is hired to do a particular job 4) SHORT TERM He is hired to do a short-term, specific job 5) TOOLS & MATERIALS He supplies his own tools and materials 6) SPECIFIC PAY He is paid a specific, given amount to do the job -------------- * EXCEPTIONS * Principal may be held liable for the tortious acts of an IC if... 1) INHERENTLY DANGEROUS ACTIVITIES IC is engaged in inherently dangerous activities 2) NONDELEGABLE DUTY (Public Policy) |
|
|
RESPONDEAT SUPERIOR
Independent Contractors General Rule? Factors in favor of "IC" vs. Employee? |
FACTORS: Agent is likely to be an IC if...
1) DISTINCT BUSINESS He is engaged in a distinct business of his own 2) CONTROL He controls the manner and method by which he performs tasks 3) PARTICULAR JOB He is hired to do a particular job 4) SHORT TERM He is hired to do a short-term, specific job 5) TOOLS & MATERIALS He supplies his own tools and materials 6) SPECIFIC PAY He is paid a specific, given amount to do the job |
|
|
RESPONDEAT SUPERIOR
Independent Contractors General Rule? Exceptions? |
* GENERAL RULE *
Employer is NOT liable for tortious acts of an independent contractor -------------- * EXCEPTIONS * Principal may be held liable for the tortious acts of an IC if... 1) INHERENTLY DANGEROUS ACTIVITIES IC is engaged in inherently dangerous activities 2) NONDELEGABLE DUTY (Public Policy) |
|
|
RESPONDEAT SUPERIOR
Employer-Employee |
* GENERAL RULE *
For an employer to be vicariously liable, the tort must have occurred with the SCOPE OF THE EMPLOYEE'S EMPLOYMENT * FROLIC & DETOUR RULE* DETOURS Small deviation from an employer's directions -- These fall within the scope of employment-- so employer is still liable FROLIC A major deviation from the employer's directions --These fall OUTSIDE the scope of employment, so employer is relieved of liability |
|
|
FROLIC AND DETOUR RULE
|
Applies to Employer's VICARIOUS LIABILITY for the tortious acts of his EMPLOYEE
---------------------------------------------- * GENERAL RULE * For an employer to be vicariously liable, the tort must have occurred with the SCOPE OF THE EMPLOYEE'S EMPLOYMENT * FROLIC & DETOUR RULE* DETOURS Small deviation from an employer's directions -- These fall within the scope of employment-- so employer is still liable FROLIC A major deviation from the employer's directions --These fall OUTSIDE the scope of employment, so employer is relieved of liability |
|
|
STRICT LIABILITY PRODUCTS
- Elements? |
1) D is a commercial supplier
2) Production or Sale of a defective product 3) Actual and Proximate Cause 4) Damages ** CASUAL SELLER is NOT liable |
|
|
What is the requisite INTENT for BATTERY
|
(a) Intent to cause a harmful or offensive touching; OR
(b) Intent to create a reasonable apprehension by P (i.e. intent for assault) ** This will be enough to constitute battery if contact occurs as a result of the D's actions E.g. where D only intends to frighten but accidentally strikes and injures the P WHY: Doctrine of TRANSFERRED INTENT applies |
|
|
What is the requisite INTENT for BATTERY
|
(a) Intent to cause a harmful or offensive touching; OR
(b) Intent to create a reasonable apprehension by P (i.e. intent for assault) ** This will be enough to constitute battery if contact occurs as a result of the D's actions E.g. where D only intends to frighten but accidentally strikes and injures the P WHY: Doctrine of TRANSFERRED INTENT applies |
|
|
What are the FOUR BRANCHES of INVASION OF PRIVACY?
|
1) Appropriation of P's Picture or Name for D's Commercial Advantage
2) Intrusion Upon P's Affairs or Seclusion 3) False Light (publication of facts that place P in false light) 4) Public Disclosure of Private Facts About P |
|
|
INVASION OF PRIVACY
- 4 Different Types? |
1) Appropriation of P's Picture or Name for D's Commercial Advantage
2) Intrusion Upon P's Affairs or Seclusion 3) False Light (publication of facts that place P in false light) 4) Public Disclosure of Private Facts About P |
|
|
INVASION OF PRIVACY
- What are the major branches? |
1) Appropriation of P's Picture or Name for D's Commercial Advantage
2) Intrusion Upon P's Affairs or Seclusion 3) False Light (publication of facts that place P in false light) 4) Public Disclosure of Private Facts About P |
|
|
INVASION OF PRIVACY
Appropriation of P's Picture or Name for D's Commercial Advantage |
* GENERAL RULE *
P need only prove the UNAUTHORIZED use by D of P's picture or name for D's commercial advantage GENERALLY-- liability is limited to the use of P's picture or name in connection with the promotion or advertisement of a product or service -------------------------------------------------- * Status as a Public Figure is IRRELEVANT for this type of privacy tort * MISTAKES: D is liable even if he mistakenly believes CONSENT/ AUTHORIZATION was given (Even if the mistake is reasonable!) * DEFENDANT NEED NOT PROFIT There is no requirement that D actually profit from using P's picture or name-- liability arises merely from the unauthorized USE |
|
|
INVASION OF PRIVACY
In which privacy torts is the fact that the plaintiff is a PUBLIC FIGURE relevant? |
** IRRELEVANT For:
Appropriation of P's Picture or Name for D's Commercial Advantage ** RELEVANT FOR: ** (1) False Light; (2) Public Disclosure of Private Facts In this instances, P is required to show that D acted with MALICE-- i.e. with knowledge of falsity or reckless disregard for truth |
|
|
INVASION OF PRIVACY
Appropriation of P's Picture or Name for D's Commercial Advantage "Mistakes" |
D is liable even if he mistakenly believes CONSENT/ AUTHORIZATION was given (Even if the mistake is reasonable!)
|
|
|
Appropriation of P's Picture or Name for D's Commercial Advantage
"Profit Required" ? |
NO--- DEFENDANT NEED NOT PROFIT
There is no requirement that D actually profit from using P's picture or name-- liability arises merely from the unauthorized USE |
|
|
PREMISES LIABILITY
"ATTRACTIVE NUISANCE DOCTRINE" |
GENERAL RULE: Landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to CHILDREN caused by artificial conditions on his property
P MUST SHOW... 1) DANGEROUS CONDITION (of which owner is or should be aware) 2) Owner knows/ should know that young persons like to hang out near the dangerous condition; 3) The condition is LIKELY TO CAUSE INJURY (i.e. its dangerous) because of the child's inability to appreciate the risk.. and 4) COST-BENEFIT The expense of remedying the situation is slight compared with the magnitude of the risk |
|
|
P (child) is injured by the negligent actions of D... P's mother refuses to take P (the child) to the doctor, and as a result, his injuries are more severe than they otherwise would have been.
RULE? |
The mother's decision not to treat is "NEGLIGENCE"...
HOWEVER-- any negligence on the mother's part will NOT be imputed to the boy *RULE: in actions against a third party, a parent's negligence is NOT imputed to the child ** EFFECT ** This rule has the effect of preventing the doctrine of AVOIDABLE CONSEQUENCES from limiting the boy's recovery (i.e. he may still recover for ALL of his injuries, despite the fact that they were worsened by his mother's negligent conduct) |
|
|
Is Assumption of the Risk a defense to STRICT LIABILITY PRODUCTS cases?
|
YES!!
|
|
|
STRICT PRODUCTS LIABILITY
The element of a "reasonably alternative / feasible design" is required for ______ defects, but NOT ______ defects? |
P must show a reasonably alternative design for DESIGN defects ONLY... NOT manufacturing defects!
|
|
|
Can D be liable for Trespass to Land for merely chasing someone onto the property of another?
|
YES!!
Need not personally enter onto the land to be liable! e.g. can trespass by flooding P's land, by throwing rocks, or chasing third parties upon it |
|
|
DAMAGES
Where P collects insurance money... Rule? |
GENERAL RULE: damages are NOT reduced or mitigated by reason of benefits received by P from other sources, such as health insurance
|
|
|
PRODUCTS LIABILITY Actions Based on NEGLIGENCE
|
P must show negligent conduct on the part of the manufacturer that led to the supplying of a product with an unreasonably dangerous defect
** BE CAREFUL to distinguish these from STRICT Products Liability-- read the question carefully! Look at the tort theory being sued under!!.... Why? Unlike Strict Liability Products Liability-- Products liability based on Negligence requires the basic elements of Negligence... i.e. DUTY & BREACH-- namely, the breach of the duty of the manufacturer to discover defects that would have been discovered thru proper inspection |
|
|
What is the BASIC duty required by manufacturers for the purposes of products liability actions based on NEGLIGENCE?
|
duty of the manufacturer to discover defects that would have been discovered thru proper inspection
|
|
|
Battery - Elements
|
1) Harmful or offensive contact
2) Contact must be with the P's person |
|
|
RES IPSA LOQUITUR
2 Prongs |
1-- Accident is a type normally associated with negligence
2-- accident of this type is normally due to the negligence of someone IN DEFENDANT's POSITION NOTE: 2 Prongs are NOT a way for P to Secure Victory • Merely the requirements for P to put forward his case to the jury • Still a question for the jury to decide whether it was Df’s fault |
|
|
RES IPSA LOQUITUR
what is the first prong and how is it satisfied? |
1. Accident is of a Type Normally Associated With Negligence
Two ways to satisfy this prong (in your analysis) (1) “Normally” Normally—barrels don’t fall out of store windows (2) Rule Out Non-Negligent Alternatives Did an earthquake occur that day that could have shaken the barrel out of the window? NOTE: 2 Prongs are NOT a way for P to Secure Victory • Merely the requirements for P to put forward his case to the jury • Still a question for the jury to decide whether it was Df’s fault |
|
|
RES IPSA LOQUITUR
what is the second prong and how is it satisfed? |
2. Accident of This Type is Normally Due to Negligence of Someone IN DEFENDANT’s POSITION
i.e. Convince the court you are suing the right person P can show this by showing that Df had CONTROL over the injury-causing object at the time the injury occurred - This is SUGGESTIVE that P has the right Df NOTE: 2 Prongs are NOT a way for P to Secure Victory • Merely the requirements for P to put forward his case to the jury • Still a question for the jury to decide whether it was Df’s fault |
|
|
CAUSATION
DEF: Factual Cause |
DEF: FACTUAL CAUSE
A cause in fact (but for cause) is a necessary condition for an event’s occurrence. Ask youself: Would the injury have occurred without the defendant’s action? If not, then the defendant’s action was a cause in fact |
|
|
CAUSATION
DEF: Proximate Cause |
CAUSATION
DEF: Factual Cause |
|
|
CAUSATION
-- FACTUAL CAUSE Semantic Points to Stress In an Essay |
Semantic Points You Should Definitely Stress in an Essay
1. Defendant’s BREACH was the factual cause—NOT Defendant himself --Don’t Say “Df was the factual cause” 2. Do NOT say that the breach was THE factual cause—say that it was “A” factual cause All events have an infinite number of causes—it is sufficient for P to prevail if the breach was ONE OF the factual causes |
|
|
CAUSATION
-- FACTUAL CAUSE What Test? |
BUT FOR TEST
P must demonstrate that but-for the breach the injury would not have occurred |
|
|
CAUSATION
-- FACTUAL CAUSE What Test? Burden of Proof? |
BUT FOR TEST
P must demonstrate that but-for the breach the injury would not have occurred BURDEN OF PROOF P must prove by a PREPONDERANCE OF THE EVIDENCE (50% or greater) |
|
|
NEGLIGENCE
What are MERGED CAUSE cases? |
Multiple Negligent Dfs—each breach a duty of care and set forth a destructive force upon the world …Both of these forces MERGE to injure P → P sues BOTH Defendants
Example: 2 Polluters—Alpha Corp negligent discharges a liquid chemical. Beta Corp negligently discharges the SAME chemical. The two chemicals both flow into the same pond, killing all the fish. Either pollutant, acting alone, would have caused the entire harm all by itself → BOTH are SUBSTANTIAL FACTORS HERE: Court will not use but-for test |
|
|
Negligence - Causation
What is the test for factual causation when there are multiple defendants, and MERGED causes? |
Substantial factor test
Ask whether each breach standing alone was theoretically capable of starting the injury |
|
|
What test do you use when there are 2 negligent Ds acting together
|
SUBSTANTIAL FACTOR ANALYSIS
Breach is a substantial factor if it was capable of causing the ENTIRE HARM ALL BY ITSELF |
|
|
Negligence - Causation
What is the test for factual causation when there are multiple defendants, and an UNASCERTAINABLE cause? |
BURDEN SHIFTING
RULE: Where P cannot determine which of several negligent Dfs caused the harm… 1. The burden of proof SHIFTS to the Defendants; AND 2. Dfs must then prove that they were NOT a factual cause If one Df cannot show they were NOT a factual cause → that Df is 100% liable If NEITHER Df cannot show they were not a factual cause → BOTH Dfs are 100% liable |
|
|
Negligence - Causation
What is the test for proximate causation? |
RULE: Proximate Cause
D's conduct is said to be the Proximate Cause of P's harm when: (1) The result/type of harm is REASONABLY FORESEEABLE; AND (2) There are no SUPERSEDING INTERVENING FORCES |
|
|
Negligence- Causation
"REASONABLY FORESEEABLE" |
Proximate Causation
RULE: While the result/type of harm must be reasonably foreseeable, the EXTENT and PRECISE MANNER in which the harm occurs need not be foreseeable EXTENT OF THE HARM → Need Not Be Foreseeable (i.e. EGGSHELL SKULL RULE) i.e., once any personal injury is foreseeable, the particular type of injury NEED NOT be foreseeable |
|
|
Negligence- Causation
Extent of the Harm |
EXTENT OF THE HARM → Need Not Be Foreseeable (i.e. EGGSHELL SKULL RULE)
i.e., once any personal injury is foreseeable, the particular type of injury NEED NOT be foreseeable |
|
|
Negligence- Causation
PRECISE MANNER OF THE HARM |
NEED NOT BE FORESEEABLE!
PRECISE MANNER OF THE HARM → Need Not Be Foreseeable Example: A negligently keeps a lighted flame next to a gas outlet. A rat then becomes lit on fire and runs toward the gas outlet, causing an explosion --> the explosion is a foreseeable type of harm despite the fact that the precise manner in which it occurred was not foreseeable Proximate Causation RULE: While the result/type of harm must be reasonably foreseeable, the EXTENT and PRECISE MANNER in which the harm occurs need not be foreseeable |
|
|
Negligence- Causation
What is an Intervening Force? |
DEF: Intervening Force
A new force which joins with D's conduct to cause P's injury Can be human, animal, mechanical or natural "Intervening" b/c it has occurred sequentially in time AFTER D's conduct |
|
|
Negligence- Causation
What is a SUPERSEDING FORCE? |
DEF: Superseding Force
An intervening force whose occurrence appears extraordinary under the circumstances |
|
|
An intervening force whose occurrence appears extraordinary under the circumstances
known as? |
SUPERSEDING FORCE
|
|
|
A new force which joins with D's conduct to cause P's injury
known as? |
INTERVENING FORCE
|
|
|
Negligence- Causation
INTERVENING FORCES - Rule? |
TWO POSSIBILITIES:
(1) If the Intervening Force is characterized as SUPERSEDING Proximate cause is NOT established, even though the type of harm is foreseeable (2) If intervening force is NOT SUPERSEDING Df is liable |
|
|
Negligence - Causation
In a "direct cause" problem, when will a P generally not be found liable? |
When the injury is freakish or bizarre
|
|
|
Negligence- Causation
INTERVENING FORCES "The Well-Settled Quartet" |
In all 4 Scenarios: Court finds that injury IS Foreseeable; Liability is Fair
1) Intervening Medical Negligence/ Medical Malpractice 2) Intervening Negligent Rescue 3) Intervening Protection or Reaction Forces 4) Subsequent Diseases or Accidents |
|
|
1) Intervening Medical Negligence/ Medical Malpractice
|
4 Particular Indirect Cause Qs Where There is Precedent “The Well-Settled Quartet” [BARBRI]
RULE: does NOT cut off liability-- D is still a proximate cause! |
|
|
Negligence
Intervening Negligent Rescue |
4 Particular Indirect Cause Qs Where There is Precedent “The Well-Settled Quartet” [BARBRI
RULE: does NOT cut off liability-- D is still a proximate cause! |
|
|
Negligence
Intervening Negligence by "protection or reaction forces" |
4 Particular Indirect Cause Qs Where There is Precedent “The Well-Settled Quartet” [BARBRI]
RULE: does NOT cut off liability-- D is still a proximate cause! |
|
|
Negligence
Subsequent Diseases or Accidents |
4 Particular Indirect Cause Qs Where There is Precedent “The Well-Settled Quartet” [BARBRI]
RULE: does NOT cut off liability-- D is still a proximate cause! Foreseeable that when you injure someone and leave them in a weakened position → they will suffer a subsequent disease/ accident → it is fair to impose liability on Df |
|
|
Negligence
Acts of Nature/ Acts of God |
FORESEEABLE -- NOT superseding!
|
|
|
Negligence
nominal damages |
NOT available!
|
|
|
Negligence
Punitive Damages |
NOT awarded in ordinary negligence actions
|
|
|
Negligence
What are the specific calculations for PROPERTY DAMAGES |
1- Complete Destruction → P gets Fair Market Value
2- Partial Damage → Pets Diminution in FMV + Cost Of Repair 3- Temporary Deprivation of Use = P gets Rental Value |
|
|
If P has insurance that covers for certain damages → no double-recovery for these damages
what rule is this? |
COLLATERAL SOURCE RULE
MBE: does NOT follow this rule NY: does follow the rule |
|
|
Collateral Source rule
|
If P has insurance that covers for certain damages → no double-recovery for these damages
MBE: does NOT follow this rule NY: does follow the rule |
|
|
Negligence - Defenses
What is traditional contributory negligence? How will I know it is being tested? |
Under traditional contributory negligence, if a P has failed to exercise proper care for their own safety, P is barred from all recovery
Question will be phrased: “in a j/d w traditional negligence defenses” |
|
|
Negligence - Defenses
What are the elements of traditional implied assumption of the risk? How will I know that it is being tested? |
Elements
1) Knowledge and appreciation of the risk 2) Must take on the risk voluntarily Question will be phrased: “in a j/d w traditional negligence defenses” |
|
|
Negligence - Defenses?
What is New York law regarding traditional implied assumption of the risk? |
It has been abolished
|
|
|
Negligence
WHICH TRADITIONAL DEFENSES HAVE BEEN ABOLISHED IN NEW YORK? |
Contributory Negligence
Assumption of the Risk |
|
|
Negligence
Implied Assumption of the Risk - Elements |
Elements
1) Knowledge and appreciation of the risk 2) Must take on the risk voluntarily * ABOLISHED IN NEW YORK and MAJORITY OF THE STATES * ONLY USE THIS IF Q SAYS "Traditional Defenses" |
|
|
Negligence Defenses
NEW YORK: Defense that is similar to assumption of the risk... |
FAILURE TO WEAR A SEAT BELT
NOT treated as a complete defense; BUT—it is treated as a FAILURE to mitigate damages i.e. wearing a seatbelt IS mitigating damages; not wearing one is FAILING to mitigate EFFECT: P cannot claim “Enhanced Damages” associated with the failure to wear the seatbelt |
|
|
NEGLIGENCE
Express Assumption of the Risk |
REQUIREMENTS: Express Assumption of Risk
(1) Knowingly-- P read and signed the release K, indicating knowledge of the risks that were detailed within (2) Voluntary-- P was not forced to sign; working out is not a mandatory activity RULE: Express Assumption of Risk: Unambiguous exculpatory clauses are VALID unless legislation says otherwise EXCEPTIONS (three) : Where the PUBLIC INTEREST will render an exculpatory clause UNENFORCEABLE:: 1) Where acts are intentional, reckless, wanton, or grossly negligent 2) Where there is grossly unequal bargaining power between the parties 3) Where the transaction involves public interest |
|
|
Negligence - Defenses
What defense to negligence is generally available in New York? |
Pure comparative negligence
|
|
|
Negligence
Implied Assumption of the Risk "VOLUNTARY" |
REQUIREMENTS:
D must prove: 1) P KNEW: (a) the Risk—AND (b) its Magnitude… AND… 2) P nonetheless VOLUNTARILY encountered the risk “VOLUNTARY” NOT Voluntary IF: (a) Coerced or Under Duress (If P is coerced or under duress → act is involuntary --> A/R Defense BARRED) (b) No Reasonable Alternative (If P had no reasonable alternative → act is involuntary --> A/R Defense BARRED) |
|
|
Negligence
Comparative Negligence-- TIP? |
MBE: assume PURE comparative negligence
and Joint & Several Liability (unless otherwise instructed) |
|
|
Comparative Negligence
How does it work? |
Once Df proves that P has failed to observe proper care for his own safety → jury assigns % respective of each party’s respective degree of fault
- No rules that govern the assignment of this % → Left purely to jury’s discretion - Once this number has been assigned → P’s recovery is REDUCED based on his percentage at fault |
|
|
Negligence
NY Rule for Computing Damages |
NEW YORK RULE
COMPARATIVE Negligence is an AFFIRMATIVE DEFENSE to Negligence Burden of Proof-- D must show by a preponderance of the evidence NY/ DEFAULT RULE → PURE COMPARATIVE NEGLIGENCE - RULE: P may recover from D regardless of P’s own level of fault (i.e., regardless of P’s own negligence) BUT—P’s recovery is REDUCED by his own percentage at fault -- Goes strictly by the % -- P ALWAYS recovers at least SOME of the money—even if he is 90% at fault |
|
|
Negligence-- Damages
2 Forms of Comparative Negligence |
(A) NY/ DEFAULT RULE → PURE COMPARATIVE NEGLIGENCE
RULE: P may recover from D regardless of P’s own level of fault (i.e., regardless of P’s own negligence) BUT—P’s recovery is REDUCED by his own percentage at fault Goes strictly by the % P ALWAYS recovers at least SOME of the money—even if he is 90% at fault (B) MODIFIED/ PARTIAL COMPARATIVE NEGLIGENCE *** ONLY USE THIS ON THE MBE—AND ONLY USE IT WHEN IT IS SPECIFICALLY MENTIONED BY NAME!!! “Equal or Greater Approach” P at fault Under 50% = P can recover “Greater Than” Approach” P at fault Over 50% = P CANNOT recover AT ALL |
|
|
Negligence- Damages
Comparative Negligence "Combined Comparison" |
Where you have multiple tortfeasors -- compare % of P's negligence vs. ALL Ds-- not just one
Ex: P 30% / D1: 30% / D2: 40% Calculation = P 30% vs. Negligence of ALL Ds-- 70% |
|
|
NEGLIGENCE
Government Immunity |
Does NOT apply where...
(1) Govt is engaged in an activity TYPICALLY undertaken by private parties (2) Where the municipality (Govt) collects profits/ revenues by virtue of the service WHY: because in these 2 situations the gov't entity is deemed to be performing a "proprietary" function rather than a Govt function |
|
|
DEFENSES TO NEGLIGENCE-- Fine Points?
|
1) NY = PURE comparative negligence
2) NY: Assumption of the risk does not BAR recovery, instead it is a factor in ascertaining P's comparative negligence |
|
|
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
- 4 Most Important Points |
1) Must be a FORESEEABLE risk of physical injury that is created
2) To recover -- P must be in the "zone of danger" 3) BYSTANDERS: if OUTSIDE the zone of danger-- can only recover if they are (1) close relative; and (2) Present at the scene 4) NEW YORK: recovery is limited to IMMEDIATE FAMILY MEMBERS who are in the zone of danger |
|
|
NIED
* NY Distinction * |
NEW YORK: recovery is limited to IMMEDIATE FAMILY MEMBERS who are in the zone of danger
|
|
|
Fine Points
PREMISES LIABILITY * NY Distinction |
NY = no distinction in duty owed to trespasser vs. licensee vs. invitee
INSTEAD: look at foreseeability and reasonableness of the landowner under the circumstances |
|
|
What is "negligence per se"
|
Where the duty owed is established by STATUTE
|
|
|
NEGLIGENCE
New York: injury to pregnant woman |
Woman can only collect if the child is born alive
- Creates 2 causes of action 1-- Baby v. Defendant 2-- Mom v. Defendant * Mom can recover for expenses that go beyond what it would take to raise a "normal" child IF BABY DIES --> mom CANNOT sue for wrongful death |
|
|
"Wrongful Birth"
NEW YORK RULE |
Where doctor botches sterilization of mom or dad...
NY does NOT recognize this C/A |
|
|
NY RULE
Who can sue an attorney for malpractice? |
ONLY the client-- since the attorney's duty runs ONLY to the client who has retained him
|
|
|
Negligence-- Damages
Punitive Damages |
MBE: not available
NY: may be awarded in cases of GROSS NEGLIGENCE |
|
|
Negligence-- Damages
Duty to Mitigate-- Motor Vehicle Accidents |
Where P fails to use his seat belt... trier of fact may consider nonuse a failure to mitigate damages-- but NOT as evidence on the issue of liability
|
|
|
Defenses to negligence
Express Assumption of the Risk * NY Rule? |
Certain groups of people are precluded by statute from using K clauses to deny liability, including....
- lessors - building contractors - amusement parks |
