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104 Cards in this Set
- Front
- Back
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Negligence |
duty, breach, cause in fact, proximate cause, harm |
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Wisconsin Negligence |
Duty Breach Cause in fact (substantial factor) 6 Public Policy Factors |
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Breach |
Failure to act as a reasonable person under the circumstances. When cost of the burden of precaution is less that the probability of harm times the magnitude of harm |
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Especially Dangerous Instrumentalities |
There is only one standard of care, the standard of "reasonable care." The level of care changes proportionately with the level of danger. |
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Emergencies |
Not recognized in every state. In states where emergency JI allowed circumstance must meet the following: (1) the party seeking its benefits must be free from the negligence which contributed to the creation of the emergency; (2) the time element in which action is required must be short enough to preclude the deliberate and intelligent choice of action; (3) the element of negligence inquired into must concern management and control.
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Superior Skill and Knowledge |
When an actor has superior skill or knowledge the standard becomes that of a reasonable person with such superior attributes. (This is not part of the jury instruction but the superior knowledge becomes part of the circumstances). |
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Inferior Knowledge |
Not included in the circumstances |
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Child Standard |
It is the duty of a child to exercise the same care that a reasonably careful child of the same age, intelligence, maturity, training and experience would under the same or similar circumstance. |
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Exceptions to Child Standard |
Depending on the jurisdiction: 1) Inherently Dangerous Activity 2) Traditionally adult activities 3) Inherently Dangerous + adult activity 4) Adult activities requiring special qualifications and licenses (Wisconsin) |
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Physical Disabilities |
Must exercise the same care a reasonably prudent person with the same disability would exercise under the same circumstances |
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Mental Disability |
Must exercise reasonable person care. If instituted they don't have duty to care taker/nurse, or physician but they still owe duty to the general public. 1) relationship between parties 2) reasonable foreseeability of harm 3) public policy. |
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Wisconsin Sudden Onset |
Sudden Onset of Mental Disability: 1) Actor not held responsible for damages caused by initial onset of illness without forewarning (ie first time having a seizure while driving) 2) Party asserting defense has burden of establishing |
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Reckless Conduct/ Gross Negligence |
1. The person knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the persons situation and
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Ways to Prove Breach |
1. Breach of Reasonable care 2. Negligence per se 3. Industry Custom (kind of) 4. Res Ipsa Loquitor |
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Negligence Per Se |
1. Unexcused violation of Safety Statute that clearly defines prohibited conduct leaving actor no room 2. Type of harm that occurred is type the statute was designed to prevent 3. P was in class of individuals intended to be protected by statute (But- for-causation does not prove elements 2 and 3) |
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Jurisdictional split on negligence per se |
1. Mandatory (violation automatically proves breach, used in WI) 2. Rebuttable presumption (D can still present evidence to counter claim of negligence 3. Evidence of Negligence (violation is merely evidence, P must still meet burden of proof) |
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Industry Custom |
1. Custom is not determinative of standard of care but can be illustrative of standard of care 2. One companies policies do not set the standard of care but can provide evidence of what reasonable care may be |
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Res Ipsa Loquitor |
Negligence may be inferred when: 1) Ordinarily this type of accident doesn't happen if reasonable care was exercised 2) D has exclusive control of thing that caused the injury 3) P was not contributorily negligent (this doesn't bar them from suit, it just apportions out how much they would win) 4) D's access to information about event was superior to P (some jx don't use but this is a good time to apply doctrine)
P can't know too much or know too little
Short hand: Ordinarily things like this don't occur unless someone was negligent and more likely than not it was the defendant's negligence that caused the harm. |
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Cause in facts |
1. But for 2. Substantial factor 3. Concert of action 4. Alternative liability theory |
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But-for |
1. Injury would not have occurred but for D's negligent act 2. Can have multiple but for causes 3. "Things would have been different if...." |
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Multiple Sufficient causes |
When two or more events concur to cause harm and either one would be sufficient on their own to cause the harm. Both are liable. Burden of each D to prove they are not a substantial factor Substantial factor test: 1) Number of other factors which contributed to producing injury and extent of the effect each had in producing it.
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Concert of Action |
Applies when D2 assists D1's tortious conduct. D2 held liable when: 1) D2 commits a tortious act in concert with D1 or pursuant to a common design with him 2) D2 knows D1's conduct constitutes breach of duty and gives substantial assistance or encouragement 3) Gives substantial assistance to the other in accomplishing a tortious result and his conduct, separately considered, constitutes breach of duty to P
When determining assistance Ct's look at: (A) Nature of wrongful act encouraged (B) Kind and amount of assistance given (C) Relationship b/t defendants (D) Presence or absence of D2 (E) D2's state of mind. |
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Alternative Liability Theory |
Shifts burden of proof to Ds to prove by a preponderance of the evidence that their conduct did not cause P’s injury 1) Two or more defendants commit similar tortious acts towards P 2) P’s harm was caused by one or some of Ds’ acts, but not all of them 3) Ds’ conduct created similar risks 4) Each D is before the court |
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WI Substantial Factor |
1) P must prove that D's tortious conduct was a substantial factor in bringing about P's injury 2) May be more than one substantial factor- must only prove D's conduct was A substantial factor not THE substantial factor 3) But for causation can be used |
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Cardoza Duty |
You owe duty of reasonable care to all who would be foreseeably injured by the action.
1) Foreseeable Plaintiff 2) Foreseeable harm |
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Andrews Duty |
Duty owed to everyone to refrain from those activities that may injure anyone |
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DUTY TO WARN |
Generally no duty to warn
Exception is when there is a special relationship between P and D. (ie common carrier-passenger, inkeeper-guest, employer-employee, landlord-tenant, invitor-invitee)
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Special Relationship Test for duty |
1. whether plaintiff entrusted himself the control and protection of the defendant 2. Whether the plaintiff entrusted himself to the control and protection of the defendant, with a consequent loss of control to protect himself. |
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Duty to Control |
In the absence of a relationship between parties giving rise to the right on control, a person is under no legal duty to control the conduct of another, even if there exists a practical ability to do so.
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Proximate Cause |
1. Directness 2. Substantial Factor 3. Foreseeability 4. Restatement |
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Directness |
1) No intervening Forces between D's act and P's Harm 2) An act that is a cause in fact of an injury will be treated as proximate cause of an injury if there is a direct connection between act and injury 3) An additional act, Subsequent to D', can break chain of causation |
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Substantial factor |
1) Number of other factors which contributed to producing and extent of the effect they had in producing it 2) Whether D's conduct has created a force or series of forces which are in continuos and active operation up to time of harm, OR has created a situation harmless unless acted upon by other forces which the actor is not responsible (after the or =not liable) 3) Lapse of time |
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Foreseeability |
1) General type of accident was a reasonably foreseeable consequence of D's conduct
(Court is not concerned with the series of events leading to the accident, but whether type of harm which occurred is the type expected to result from D's conduct)
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Thin Skull Doctrine |
Tortfeasor may not seek to reduce the amount of damages owed to the victim by spotlighting the physical frailties of the injured party at the time of the tortious force was applied to him or her. It is fundamental that a tortfeasor must accept his or her victim as the victim is found. (Applies to all proximate cause tests) |
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Restatement Approach/Risk Standard |
An actor's liability is limited to those physical harms that result from the risks that made the actor's conduct tortious |
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Intervening and Superseding |
In order for an intervening act to become a superseding cause, it must not have been reasonably foreseeable. (A third party's negligence or intentional wrongdoing can be foreseeable) |
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Intervening and Superseding Medical Care |
A defendant will be liable for the adverse results of medical treatment unless the treatment is extraordinary or the harm is outside the risks incident to the medical treatment. |
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Wisconsin Public Policy Determinants |
1. Injury is too remote from negligence 2. Injury is wholly out of proportion to D's culpability 3. In retrospect, it appears too highly extraordinary that D's negligence should have resulted in the harm 4. Allowing recovery would place too unreasonable burden on D 5. Allowing recovery would be too likely to open the way for fraudulent claims 6. Allowing recovery would enter a field that has no sensible or just stopping point |
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Contributory Negligence and exceptions |
If P is contributorily negligent to his own injury he is barred from recovery.
(Exceptions: Last clear chance, D is intentional or reckless and P is not, child under 7 cannot be contributory negligent) |
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Last Clear Chance |
When Both P and D are negligent, but the D has the last clear chance to avoid injury, D can be held liable |
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Forms of Comparative Fault |
Pure- P's damages reduced in proportion to his fault Modified 49%- P can recover if his fault is less than defendant(s) Modified 50%- P can recover is his fault is equal to or less than defendant(s)
(Some jx's compare breach, some compare cause) |
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Multiple Defendants |
Unit rule 49%- P can recover if his fault is than D's combined Unit Rule 50%- P can recover if his fault is equal to or less than D's combined WI rule- P's fault is compared to each D individually, can recover if fault is equal to or less than D. |
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Joint and Several Liability |
Each D can be held liable for the full amount of the damages owed to P. If a D pays more than his percentage of fault can sue other D(s) for contribution. This does not apply to punitive damages. |
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Several |
D is only responsible for his share of the total damages |
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WI Joint and Several |
D can only be held joint and severally liable if his fault is 51% or more. Any D who has less than 51% can only be held severally |
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Contributory Fault for Recklessness |
A) If D negligent and P Negligent= P gets 0% B) If D is reckless, P negligent= P gets 100% C) If both reckless= P gets 0% |
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Comparative Fault for Recklessness |
- Some jx say jury can apportion fault between D's reckless conduct and P's negligent conduct (can also apportion if P reckless and D negligent) - Other jx follow contributory rule- if D reckless, P negligent can't apportion, P gets it all |
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Express Assumption of risk |
P expressly assumes the risk (ie waiver)
exceptions: If it violates public policy (public service, or disparity in bargaining power) |
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Primary Assumption of risk |
Party assumes risks inherent to activity (ie sports). Risks can’t be removed with exercise of reasonable care without changing essential aspects of the sport/activity |
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Secondary Implied Assumption of Risk |
a) actual knowledge of the risk b) actually appreciates the risk c) voluntarily exposes himself to those risks
- Common law, assumption of risk= no liability - some comparative jx= no liability - most comparative jx= abolished (taken into account in contributory fault)
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Failure to Mitigate/Doctrine of Avoidable consequences |
Requires plaintiff to make reasonable efforts to mitigate the consequences of his/her injury and take reasonable steps to prevent the consequences of his injury and take reasonable steps to prevent harmful consequences from developing. This is fault. This can be prior to (ie seatbelt) or after (failing to see doctor). Must show that doing x woud have mitigated damages. - In Some jx this is factored into comparative fault - In other jx this is just subtratced from damages after fault is allocated - WI seatbelt failure= drops 15% at max
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Respondeat Superior |
An employer may be held vicariously liable for the tortious acts of his employees committed in the course and scope of employment.
Exceptions: independent contractors, going and coming rule (unless special errand) |
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Negligent Supervision |
An employer may be held liable directly liable for damages resulting from the negligent supervision of its employees activities. - employers duty to excercise reasonable care to control its employees may extend to activities performed outside the scope of employment |
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Reasonable Physician Standard (traditional) |
Professional prudence is defined by actual and accepted practice within a profession, rather than theories of what should have been done. Expert testimony sets the standard of care, thus industry custom is conclusive. - Generally If P does not have expert witness then court will dismiss - Exception is expert not required if the breach is the type where the jury does not need expert testimony to help them understand how doctor breached (ie: operating on wrong leg or leaving sponges in patient) |
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Reasonable physician Standard (modern and used in Wisco) |
Physician must act as a reasonable physician would have under the circumstances. Reasonable physician keeps abreast of current medical sciences. Compliance with custom is not conclusive in Wisco, need to judge what is reasonable not what is customary. Jury can accept or reject expert testimony of what is reasonable. (Typically uses national standard) |
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Physician Locality rule |
Standard care that degree of care, skill, and proficiency which is commonly exercised by ordinarily careful, skillful, and prudent physician, under the same circumstances in that locality (town/state/nation). |
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Physician modified Locality rule |
Standard care that degree of care, skill, and proficiency which is commonly exercised by ordinarily careful, skillful, and prudent physician, under the same circumstances in similar locality |
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Informed Consent: Professional Standard |
what a reasonable medical practitioners in the same or similar circumstances would have told their patients undertaking the same type of procedure. (Need expert) |
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Informed Consent: Prudent Patient |
- A physician had the duty to disclose enough information so that a reasonable patient can make an informed decision regarding her care, including all material risks and viable alternatives. (Don't need expert) - Inadequate disclosure is the cause of P's injuries if a reasonable patient in the position of P would have made a different choice had adequate disclosure bee made. |
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Medical res ipsa |
Courts loosen traditional res ipsa standards. P is not required to show specific: - instrumentality - defendant Only need to show that type of harm is usually associated with negligence and more likely than not it was def. (This only shift burden, D can still prove they weren't negligent) |
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Legal Standard care |
The appropriate standard of care to which a lawyer is held in the performance of professional services is that degree of care, skill, diligence and knowledge commonly possessed and exercised by a reasonable, careful and prudent lawyer in the practice of law in this jurisdiction (state usually best measure of locality).
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Proving Legal Mal Practice |
Have to prove that lawyer was negligent in handling case AND reasonable attorney would have attained a better result. - expert testifies on reasonable settlement value - trial within a trial to determine what jury would have awarded it other party did not settle - damages jury awards minus what P received in settlement= damages P is entitled to |
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Types of Entrants (Occupiers of land) |
Invitee, Licensee, Trespasser (criminal, mere, discovered/frequent/ tolerated, child |
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Duty to criminal trespasser |
- Some jx: only duty is not to intentionally injure - Other jx: duty is not intentionally, or recklessly injure
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Duty to mere trespasser |
- Some jx: only duty is not to intentionally injure
- Other jx: duty is not intentionally or recklessly injure |
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Duty to discovered, frequent, or tolerated trespasser |
- some jx: duty not to intentionally, or recklessly injure
- Some jx: duty not intentionally, recklessly plus protect trespasser from injuries caused either by the landowner's activities or by artificial conditions on land |
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Duty to child trespasser |
- Duty not to intentionally, recklessly and plus: Duty to use reasonable care or eliminate unreasonable artificial (as opposed to natural) conditions on the land which pose a risk of death or serious bodily injury to children. Owner must know or have reason to know that children are likely to trespass at the place where the dangerous condition exists. Child (due to his/her immaturity) must not discover the condition or appreciate the danger involved. |
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Duty to Licensee |
(Licensee= guest) Duty not to intentionally or recklessly injure plus: duty to use reasonable care to warn licensee of or make reasonably safe a dangerous condition which the owner is aware of and the licensee is not |
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Duty to Invitee |
(Invitee= mutual advantage usually business) Duty not to intentionally or recklessly injure plus: Duty to protect invitee from risks owner is actually aware of or should have been aware of after reasonable inspection |
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Licensee must prove: |
1. A condition of the premises created an unreasonable risk of harm to him
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Invitee Must prove: |
1. Landowner had actual or constructive knowledge of some condition on the premises
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Open and Obvious |
Proprietor of land has no duty to protect from injuries caused by open and obvious dangers, such as natural accumulations of snow/ice/wing |
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General Duty for Busineses |
Ordinarily a P asserting breach of duty of reasonable care must prove that def had actual or constructive knowledge of the dangerous condition that caused the accident |
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Mode of Operation |
When a substantial risk of injury is inherent in a business's mode of operation, P is relieved of showing actual or constructive notice of the dangerous conditions. P is entitled to inference of negligence and the burden of production is shifted to D to show they used reasonable care. (P still has burden of persuasion) |
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Business Owner Duty to protect from criminal conduct |
Generally: No duty to protect against criminal conduct Exception: A possessor or land who holds it open to the public owes a duty to take precautions against criminal conduct which is foreseeable. 2 tests foreseeability tests: - Prior similar incidents - Totality of circumstances |
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Traditional Landlord- Tenant Duties |
No duty upon landlord, either to tenant or to other entering the land, for defective conditions existing at the time of the lease. Unless: 1. Undisclosed dangerous condition known to lessor and unknown to the lessee 2. Conditions dangerous to persons outside of the premise 3. Premises leased for admission of the public 4. Parts of land retained in Lessor's control which Lessee is entitled to use 5. Where lesssor contracts to repair (repair was a term in the lease/contract) 6. Negligence by lessor in making repairs (tenant doesn’t know and shouldn’t know repairs were negligently made)
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Modern Approach to Landlord-Tenant Duties |
Landlord had a duty to use reasonable care to discover and remedy conditions which present an unreasonable risk of harm |
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Landlord Duty to provide protection from criminal concuct |
No Duty unless: 1) Lessor attempts to provide protection in which case he must use reasonable care 2) Lessor created or is reasonable for a known defective condition which foreseeably enhanced the risk of criminal attack |
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Modern Approaches to land owners |
Some jx: duty of reasonable care to all lawful entrants
Other jx: Duty of reasonable care to all entrants even criminal trespasser |
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Duty to Rescue |
Generally no duty to rescue another Exceptions: - Begin rescue - Common carriers - Creation of risk - Special relationship |
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Duty to rescue (begin rescue) |
Once you start to rescue, you have a duty to do so with reasonable care. (some states has statutes that immune rescuer from liability as long as they do so in good faith) |
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Duty to rescue (common carriers/inkeeper) |
Duty to provide first aid and call EMT's as long as def did not cause the injury. |
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Duty to rescue (creation of risk) |
If one party creates the risk, negligently or even if they are not negligent, has a duty to rescue |
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Duty to rescue (special relationship) |
Party has a duty to aid another if he has pre-existing affirmative legal duty (parent/child; common carrier/patron; Teacher/student; etc) |
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Duty to rescuer (not firefighter) |
If you negligently injure someone and the rescuer is injured you are liable to the rescuer as well. Rescue is foreseeable consequence. |
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Firefighter Rule |
If a plaintiff is a firefighter or other professional paid to assume the risk, the rule states the plaintiff can't recover against the person who negligently caused the need for rescue. (In wisco we follow the rule but say there is a duty but for public policy we will not hold defendant liable, exception ice outside of home or room that was not up to code an def did not warn.) |
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Professionals Duty to protect third parties from criminal acts |
A mental health professional has a duty to warn third parties of possible harm if the patient makes specific and immediate threat to a specific or readily identifiable person and the professional determines or should have determined that this patient presents serious danger. |
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Professional duty to protect third parties from disease |
The existence of a physician-patient relationship is sufficient to impose upon a physician an affirmative duty to warn identifiable third persons in the patient's immediate family against foreseeable risks emanating from a patient's illness |
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NEID Wisconsin (direct) |
Emotional distress is compensable with or without physical injuries if: 1) D was negligent in causing accident 2) P suffered emotional distress caused by D's negligence 3) This emotional distress was severe |
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NEID Wisconsin (bystander) |
Public policy considerations whether to preclude liability for severe emotional distress to a bystander a court must consider three factors: (1) the severity of the injury to the victim, (2) the relationship of the plaintiff to the victim,- spouse, parent, child, grandparent, grandchild or sibling of the victim. and (3) the extraordinary circumstances surrounding the plaintiff's discovery of the injury. (witness gruesome aftermath or accident itself) |
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Strict Liability Wild Animal |
Strict Liability if harm results from characteristics which make the animal dangerous |
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Strict Liability Domesticated Animal |
(1) Animal trespassing on other's property (no S/L f area is public ie highway), or (2) Owner knows or has constructive knowledge of the animal's dangerous tendencies abnormal to its breed
( Can still be held liable for negligence or intentional) |
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Strict Liability Abnormal and Dangerous activities |
Factors to consider (one alone may not be sufficient but also don't need all) 1. Existence of a high degree of risk of some harm to persons or land 2. Likelihood that the harm that results will be great 3. Inability to eliminate the risk using reasonable care 4. Extent to which activity is not a matter of common usage 5. Inappropriateness of the activity to the place where it is carried on 6. extent to which its value to the community is outweighed by its dangerous attributes |
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Battery single intent (Wisco) |
1. Intent to contact another (desire or substantial certainty) 2. A harmful/offensive contact with the person of the of the other directly or indirectly results. |
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Battery Dual Intent |
1. Intent to contact + intended for the contact to be harmful or contact that a reasonable person would find offensive 2. A harmful/offensive contact with the person of the of the other directly or indirectly results. |
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Assualt |
1. Def acts intending to cause a harmful or offensive contract with person of the other, or imminent apprehension of such contact 2. The other is thereby put in such imminent apprehension |
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Damages for offensive torts |
Damages that result in injury but not harm will only result in nominal damages |
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Transferred intent |
Torts: If an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact, or of putting another in apprehension of either a harmful or offensive bodily contact, and such act causes a bodily contact to the other, the actor is liable to the other for a battery although the act was not done with the intention of bringing about the resulting bodily harm. People: If an act is done with the intention of affecting a third person in the manner stated in Subsection (1), but causes a harmful bodily contact to another, the actor is liable to such other as fully as though he intended so to affect him. |
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Defenses to Intentional Torts |
- Consent - Defense of self - Defense of others - Defense of property - Ejectment of Trespassers |
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Consent |
Consent bars recovery for battery and it may be expressed or implied. If implied must be determined on basis of reasonable appearance. - In an altercation P can't recover unless D used force in excess of necessary force (ie pulled out a knife.) - In sports one who plays consensts to physical contact consistent with understood rules of game. |
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Defense of self |
A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact. Generally dangerous weapon is non justifiable if other party is not armed unless when the fear of danger is genuine and founded on facts likely to produce similar emotions in reasonable men |
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Defense of others |
An actor may use reasonable force to defend another to prevent any threatened harmful or offensive bodily contact. Force used may not exceed what the other would have been allowed to use. |
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Defense of Properties |
An actor may use reasonable force necessary to defend their property. One may not use or threaten deadly force in the defense of property |
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Ejectment of trespassers |
One may use reasonable force necessary to eject trespasser from premises after requesting they leave. |
