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;
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
|
