Torts

Front 1

Duty as to undiscovered trespasser?

Back 1

None.

Front 2

What duty to an undiscovered trespasser?

Back 2

None as to activities.
None as to conditions.

Hint 2

Why? Unforeseeable surprise P.

Front 3

What duty to a discovered trespasser?

Back 3

RPP under the circumstances.

Hint 3

Also includes an anticipated trespasser. I.e. shortcut on property frequently used
An undiscovered trespasser could become a discovered trespasser.

Front 4

Affirmative duty to rescue?

Back 4

General rule: No duty to act affirmatively.

No duty to rescue.

Tip: when the rule is easy, they appeal to your emotions. So will be phrased where the D's conduct is cold-hearted and so people pick the wrong answer.
Example:
A, B, and C (Olympic Athletes) enter park and see drowning child. Child calls for help. They ignore. No liability. No duty to rescue.

Front 5

Exceptions to affirmative duty to act??

Back 5

Yes.
1) If the D caused the peril or put P in the position, then YES there is a duty to rescue.
2) Pre-existing relationship
(i.e. kinship)
3) Common carriers and innkeepers must rescue their patrons.
4) Land occupier has a duty to an invitee.

But note that the duty is the duty to rescue under the circumstances. No duty to put own life in jeopardy.

Gratuitous rescuer who messes up can be held liable for negligence.

Many states have changed these rules by statute (good samaritan laws).
But on the bar exam, the clumsy rescuer is liable for harm inflicted.

Front 6

Statutory Standard of Care (often tested)

When do we borrow a statutory standard for negligence per se?

Back 6

When P can show:
1) P is a member of the class of persons the statute seeks to protect.

2)P must demonstrate that the accident which occurred is within the class of risks that the statute is designed to prevent.

The class of person class of risk test.

Examples:

Front 7

Hypo: P gets on elevator. No elevator. P dies. Widow sues elevator maintenance company. Statute states that all engaged in repair must place physical barrier in front of open shaft. W wants to use statute as the duty standard.

Back 7

What risk does a statute mandating barrier? risk of those getting hurt.
what class of people? Those using the elevator.

So duty is put up yellow tape in order to be reasonable. This is a huge advantage to a P. If litigated under RPP standard, then D could argue that absurd to block off 80 floors for a 10 minute repair. So D argues that it was reasonable to skip.
Once statute borrowed, then negligence per se if no tape

Front 8

Hypo:
W goes to work. Does not know about gas leak in stove. Comes back home and lights joint. Explosion. Question notes that wall blown off to neighbor. Negligence claim against pot smoker. Statute states that possession of marijuana is a misdemeanor. P feels it would help to borrow the statute.

Back 8

Class of risk? Bad driving.
Progression to harder drugs.
Does not apply to hypo. Risk was not that would blow up apartment.
Class of persons? Motorists, youth. Here, not covered.

So don't borrow the statute.

What happens to the P? P litigates under RPP under the circumstances.

Front 9

Exceptions to class/class test?

Back 9

1) If compliance would be more dangerous than violation, then do not borrow the statute.

Example: D driving down highway. D swerves over line to avoid child. This causes P to run off the road. P wants to borrow the statute that prevents crossing of line. But compliance would have been more dangerous. Instead, RPP.
Analysis: Was D traveling at a safe rate of speed? Was D sober? Could D have pulled to the right instead?

2) If statutory compliance is impossible under the circumstances, then don't borrow the statute.

Example: D has heart attack while driving. D hits P when runs red light. P argues class, but compliance was impossible.

Front 10

Negligent infliction of emotional distress?

Back 10

Remember what we are NOT TALKING ABOUT.
If D harms P, then P gets economic damages and also emotional distress damages.

We are talking about a P who is negligent but there is no physical harm. So P must show:
1) P must show that even though no physical harm, P was exposed to a risk of harm. (zone of danger, near-miss)

Example:
A is flying to NY. Midway through flight, plane plummets. After 30 seconds, plane resumes normal flight. A sues for NIED. A finds out that pilot was drunk and fell on throttle. Co-pilot rights the plane.
1) near-miss? Yes.
2) Subsequent physical manifestations of the distress?
Example: heart attack, pregnant woman miscarries, rash, twitch. Designed to prevent fraud. Must have sufficient objectivity.

Front 11

Breach

Back 11

Part of the case where the P identifies what the D did wrong. Important when litigating under RPP standard of care.

D was unreasonable "in that he" ...

Front 12

Breach

Res ipsa loquitur

Back 12

Doctrine used by Ps who can not state precisely what the D did wrong.

1) P must show that that the type of accident that occurred does not normally occur in the absence of negligence.

2) P must show that the D is probably responsible for the negligence.

When a P makes the 2 showings, the P gets to the jury. Serves as subsitute evidence for breach. No guarantee of ultimate victory.

Front 13

Example of Res Ipsa Loquitur:
A sues Chewing Tobacco company. A bit into human toe. Perfect res ipsa case. Can't tell what D did wrong.

Back 13

Perfect example of where speaks for itself.

Front 14

Causation includes 2 subjects. Keep separate in essay, do factual and then legal causation.

What is factual causation?

Back 14

This is the point in the case where the P establishes a real-world link between the breach and the damage suffered. Follows naturally in the essay. Having identified X as the breach, the next step is the show that this cause the injury. How to prove??

But for the breach...

Front 15

Example:
P is on vacation. P purchases ticket on fishing boat. Storm arises. Wave sweeps P off boat. P disappears. W sues. Assume duty and breach established. Theory of case is that there were no life preservers. Coast Guard regulations required. D argues that even if had life preservers, would not have made any difference. P pulled and held under immediately. This is a winning argument.

Back 15

However, the but for approach does not work for multiple Ds.

2 common tested scenarios:
1) Multiple Ds and mingled causation
A and B are unrelated. Both go camping at same park. A forgets to put out fire. B also forgets. Wind fans the embers into fire. 2 separate forest fires form. Eventually they mingle and become single fire. Joint fire burns down P's house.
Duty? yes
Breach? yes
Factual causation? But for test presents strange result. A argues that even if A had put out fire, B's fire would have burned P's house down. B can say the same.

In these cases, court uses a different test.
SUBSTANTIAL FACTOR: Each D is analyzed to see if contributed to the injury in a substantial way. If both substantial factors, then jointly liable.

2) Multiple Ds and unascertainable cause

Summers v Tyce (CA case)
Hunting accident case. M, L, and C. M goes off by self. L and C go together. Find Quail and wait for shot. Both shoot and one shot blinds M. M sues both.
Duty of RP breached by firing in M's direction.
Causation? Only one person put out M's eye. But does not know who. Can't show that either shot him by a preponderance of the evidence. CA SC decides to look at the equities of the case. Ct decides that here the burden of proof is shifted to the Ds. Otherwise, jointly liable.

So where simultaneous action by 2 Ds, but only one could have injured, then burden of proof shifts.