Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key

image

Play button

image

Play button

image

Progress

1/91

Click to flip

91 Cards in this Set

  • Front
  • Back
What is liability for intentional trepsass to land
for damages and trespass
Is mistake ever a defense to intentional trespass?
NEVER
What is liability for negligent trespass to land?
Only for damages not actual trespass
What is the only intentional tort where recklessness can make you liable
IIED
When is one who borrows chattles liable for possibly trespass to chattels or conversion
Only when signifincalty exceeds scope, if not exceeding of scope only liable if negligent
When there is conflict of private necessity and defense of property which one prevails
Necessity
False imprisonment requirments
1. intent to confine
2. actual confinement
3. P must be conscious of confinement or cannot recover unless physical injury
When owner of land is liable for child trespasser
Actually knew or had reason to know children entered land before o that children might trespass and knew or reason to know of dangerous conditions
Is land owner havbe a duty to warn kids of natural conditions on land
NO
requirments for IIED (4 of them)
1. Act by defendant amounting to extreme and outrageous conduct
2. intent or recklessness
3. causation
4. Damages (physical or severe mental emotional distress)
Requirements for 3rd party IIED
1. D aware of should have been aware of 3rd party P
2. 3rd is close family member, or if not close member must have suffered physical injury
*If close member then mental damages allow recovery
Requirments for NIED?
1. P must suffer Physical injury (mental insufficinet)
2. P must be within the target zone of D's negligent conduct (Mom sees child struck by negligent driver on other side of street and has heart attack, not witnin zone of danger)
*Modern Trend=P can recover if she is a close relative and perceived the injury (saw or heard)
Standard of care for doctors
National standard not local
Exception to when negligence per si does not work to show breach?
When violation excused becuase of emergency
Standard for attorney to see if breached
general standards
What is a guest statute
requires a Plaintiff passenger to demonstrate his drive was grossly negligent in order to prevail against the deiver of car or plane
When victim dies what who can sue
Heirs of estate
When is contributory negligence not work as defense for defendant
when defendant was recklessly negligent
5 requirements for negligence
1) duty
2) breach of duty
3) actual causation
4) proximate cause
5) damages (usually physical)
For there to be negligence the first thing to ask about P is?
Whether P was foreseeable
2 theories of whether P is foreseeable
Minority approach =Everyone foreseeable

Majority Cardozo only foreseeable if witbin foreseeable zone of danger
explain 6 different standards of care
1. Negigence per si
2. Reasonable person
3. Children standard of care for 4 and up
4. Professional standard
5. Specialized professional standard
6. Common carrier
Aremental characteristics of a reasonable person defendant ever taken into acccount?
NO just physical so if blind person will be held to reasonable blind person
What age child can never be liable for negligence
under 4
What is standard of care for child?
child of like age, intelligence, and experience)
What is exception where child gets adult reasonable person std of care?
When engaged in adult activity
What is standard of care for common carriers and inn keepers
LIAble for even slighteset bit of negligence
Explain negligence per si
When violation of statute then this could prove the Defense's burden of prima facie case on breach and breach of duty
Test for negligence per si 2 parts
a. P must be in class of persons intended to be protected by statute
b. harm suffered must be of tye that statute was designed to protect
What effect is negligence per si not made out
Have to use different standard (reasonable person standard_)
What type of law will never work for negligence per si
BLUE laws
Exception where violation of statute is not negligence per si (3)
1) complinace would be more dangerous
2) compiance would be impossible
3) statute not desinged to protect against harm
Can D use following statute to show did not breach duty?
YES
When will the defendant proving he followed the statute not help him?
If circumstances required different conduct (raining so must go even slower)
What is a breach of a duty?
When D's conduct falls short of level required by applicable standard of care
3 theories to find breach of duty?
1) conduct fell below std of care
2) neg per si
3) res ipsa loquutor
3 elements for res ipsa loquitor?
1. Inference of negligence=accident causing the injury is type that would not normally occur unless someone was negligent
2. Instrumentality that caused injury was in exclusive control of the defendant
3. P not contributorily negligent at all
What is the effect of estabnlishing res ipsa loquitor?
D's motion for directed verdict will be denied and jury can decide whether to accept inference of negligence or reject it
Usually thing that defeats Res ipsa loquitor
Could have been in someone else's control (hotel giest in hotel)
3 tests to establish actual causation?
1. but for
2. substantial causs when 2 caused
3. Alternative causes (when 1 of 2 D's did)
What result if 2 defendants and 1 of them caused but not sure which one did cause
Burden shifted to both D's to figure out who did or both will be liable jointly and severally
Explain proximate (legal) cause?
If P or injury not foreseeable or something intervenes and causes injury then D not liable for negligence
If injury not foreseeable then what result?
D not liable
2 superceding causes if they are unforeseeable
1. acts of gods
2. intentional tort or crime of 3rd person
4 very common foreseeabe interveing causes where D stil liable?
1. Negligence on part of rescuer
2. Negligence by dr/assistant
3. Sunbsequent accident caused by original accident or disease caused by weakend condition
4. Act of God if inherently dangerous activity
In regards to foreseeability and P's and injury what has to be foreseeable
JUST P not extent of injury so need not have to be foreseeabe that P's is egg shell plaintiff
Explain collateral source rule
Even if P gets MOney from outside source like insurance does not recover P's damages in court
2 defenses to negligence
1) neglgience on part of p
2) assumption of risk
Explain contributory c/l defense
Any negligence on part of P (1%) bars P's action completely
When is the defense of contributory negligence not applicable?
If D was intentional or reckeless thenP will recover even if P was negligent
What is the 1 exception only applicable to contributory negligence states where even if P was negligent he may still recover?
Last Clear chance doctrine which says if D had last clear chance to avoid accident and did not take then he will be liable 100% even if D negligent
Explain difference between Pure comparaitve and part/modified comparative negligence
Pure =no matter how neglgent P is he will still recover but his negligence will reduce his amt

Modified=Same as pure except that if P is more negligent than P will get nothing (51%)
Does comparative negligence work as defense if D was reckless
YES unlike contr states
Explain voluntary assumuption of risk defense?
Works even if D reckelss or negligence and if P voluntary assumed risk then P completely barred from suing D
When does assumption of risk not work at defense --2 ways
1. if P did vot voluntary assume risk (day dreaming and walk in street)
2) D was intentional in his tort
2 exceptions where P vouluntary assumed risk but defense will not work and P will recover?
1. P has no other viable option (D negligently created hole and only way to get out of building so P tried to walk around and fell in)
2. Emergency of P's or another's (P jumped in front of car to save child)
What is liability for owner/occuppier to undiscovered trespassers owner has no reason to know of?
NOTHING, trespasser loses
Duty to discovered or anticipated trespasser?
Natural conditions=NO DUTY
Artificial conditons=must be of serous risk and MUST KNOW (must make safe)
What is licensee and what is duty
Licensee is social guest
ARTIFICIAL AND NATURAL CONDITIONS= If dangerous then MUST KNOW then duty to make safe
What is invitee and duty
Place open to public; person going to store even if no intent to purchase anything

ARTIFICIAL/NATURAL=should know of or MUST KNOW OF, must be dangerous condition then must make safe,

****Must make reasonable inspection
What kind of conditions does attractive nuisance doctrine only apply to
dangerous Artificial conditions only
Wha knowledge must Owner have to be liable for attractive nusiance?
Should know or actually knows
What is a defense to attractice child nuisance
Child did understand the danger
What is way to win on attractice nusiance
expense of remedying situation slight compared to danger to child (put up sign or fence)
General rule on duty to help?
NONE
When is there dut to act and help person in peril? 4 times
1. Assumption of duty to act (start to rescue and cannot stop)
2. Plaintiff's peril is caused by defendant (D bumped P into lake)
3. Have duty to control 3rd persons
i. Right and ability to control and
ii. know or should know its required
(Parents kid beating kids up and parents know)

4. Special relationship (employer/employee, common carrier/passenger, innkeeper/guest, cop-prisoner, hospital-patient, landllord-tenant
Generally if rescuer injured while trying to help person in peril will rescure recover damages
YES
When will rescuer not prevail?>
If was grossly negligent in rescuing
Is there an attempt to aid if just stop and ask and investigate
NO
When is D SL for domesticated animal
Second bite or knowledge of propensity of animal
Is there SL for damage fromairplanes?
YES
Defense to SL in contributory negligence state?
assumption of risk
Defense to SL in comparative neg state?
Assumption of risk or unknowing assumtpion of risk
Elements in Products SL:
1) struct duty owed by commercial supplier of a product 2) breach of that duty 3) actual and proximate cause 4) damage
Does SL to products work on services?
NO just product
Who can be sued in products SL?
Any commercial seller
Who can never be sued in Products SL?
casual seller (me)
How do you prove PL SL
product is defective and defect makes the product unreasonably dangerous
How do you prove causation for PL SL?
P must show that defect existed when product left the Defendant's control
What kind of damages will preclude recovery under PL SL
If just economic loss only
wHO CAN SUE on PL SL
ANy foreseeable user no privity needed
Who is never a proper P in PL SL?
THief not foreseeable
Defense to PL SL in contributory negligence state
Assumption of risk/knowing contributory negligence, and unreasonable misuse
Defense to SL PL in comparaitve negligence state
knowing and unknowing assumption of risk
General rule on SLPL If adequare warning
NO LIABILITY
Exception where liability on PL SL if adeqaure warning
if one could have cured defect for a minor amt of money relative to risk involved then warning will not save them (Pinto case)
When is seller safe from not warning
about products only dangerous if excessively used and danger known to public (liquor)
Who can be sued in PL negligence
any commercial supplier not causual seller
Who can sue in NEG SL?
Any foreseeable P not theif
What consitutes breach in Neglgience PL>?
neglgience conduct that results in supplying of defective product
What defense available to Negligence PL
assumption of risk and any tyoe of contr neglgience on P