Torts

Front 1

Negligence: Prima facie case

Back 1

1. Duty of Care - obligation to take risk-reducing precaution to all foreseeable victims of his activities

2. Breach - D breached applicable standard of care/ Res Ipsa Loquitur

3. Causation

4. Damage

Front 2

Duty - How much care?

Back 2

Exercise care as a reasonable, prudent person acting under similar circumstances

* Exceptions:

1. Superior skill/knowledge

2. D's physical characteristics if relevant to facts

Front 3

Statutory Standard of Care

Back 3

1. Statute provides a criminal penalty

2. Standard of conduct is clearly defined in the statute

3. P is within the class of people the statute was designed to protect

4. Statute was designed to protect against the type of harm P suffered

Exception:

1. Compliance is more dangerous than non-compliance

2. Compliance is impossible under the circumstances

Front 4

Negligence (Breach): Res Ipsa Loquitur

Back 4

Circumstances of the event are unknown to P but the occurrence of the accident causing P's injuries suggest negligent conduct

1. Harm would not normally occur without negligence

2. Type of harm is normally caused from negligence by someone in D's position

3. Injury-causing instrument was in D's exclusive control

Front 5

Proximate Cause

Back 5

It is fair to hold D responsible because P's injuries are a foreseeable outcome of D's conduct

1. Direct cause - foreseeable unless outcome is bizarre/freakish

2. Indirect/Intervening cause

- D is liable if injury could have possibly resulted even without intervening force

- Well-settled quartet

Front 6

Attractive Nuisance Doctrine

Back 6

1. Dangerous condition on the land of which owner is/should be aware

2. Owner knows/should know children frequent the vicinity of this dangerous condition

* Child does NOT have to be attracted onto land by the dangerous condition

3. The condition is likely to cause injury, AND

4. Expense of remedying/warning against situation is slight compared with magnitude of the risk

Front 7

Defenses

Back 7

1. Contributory Negligence

2. Assumption of Risk

3. Comparative Negligence

Front 8

Defense: Contributory Negligence

Back 8

P is barred from recovery if P's negligence contributed to her injuries

* Except: NOT a defense to wanton+willful misconduct/ intentional tort

Front 9

Defense: Assumption of Risk

Back 9

1. P knew/should have known the risk; AND

2. P voluntarily proceeded in the face of that risk

Front 10

Strict Liability: Prima Facie Case

Back 10

1. Nature of D's activity imposes absolute duty to make safe

- Products liability

- Animal conduct

- Ultrahazardous and/or abnormally dangerous conditions

2. Causation

3. Damages to P's person/property

Front 11

Strict Products Liability

Back 11

1. D is a merchant

2. Product is defective

3. (Actual Cause) Product is unaltered since leaving D's control

4. (Proximate Cause) P used product in foreseeable manner

5. Damages - personal injury/property (NOT solely economic)

Defense: Assumption of risk, comparative negligence

Front 12

Products Liability: Types of Defects

Back 12

1. Manufacturing Defect

2. Design Defect

3. Information Defect

Front 13

Strict Products Liability: Information Defect

Back 13

1. Manufacturer's failure to give adequate warnings

2. On risk that cannot be designed out + NOT apparent to users

3. Known or reasonably should have been known by manufacturer

- Includes foreseeable dangers from misuse

Front 14

Products Liability: Negligence

Back 14

1. Duty - to all foreseeable users and bystanders

2. Breach - D's negligence leads to the supplying of a defective product

* Retailers/wholesalers - cursory inspection suffices

3. Causation - Actual/Proximate

4. Damages - personal injury/property (NOT solely economic)

Front 15

Products Liability: Express Warranty

Back 15

1. Seller or Supplier of goods

2. Makes statement of fact/promise regarding goods that becomes part of the basis of bargain

2. Breach

3. Causation

4. Damage

Front 16

Strict Liability: Abnormally Dangerous Activities

Back 16

1. Condition/activity imposes severe risk of harm to persons/property

2. Cannot be made reasonably safe

3. Condition/activity is uncommon in community

4. Causation

* Abnormally dangerous conditions must cause P's injury

5. Damage

Front 17

(Private) Nuisance

Back 17

1. Substantial interference

- Offensive, annoying, inconvenient to average person in the community

- NOT including: Hypersensitive P or P's abnormal use of property

2. Unreasonable interference

- P's injury outweighs utility of D's conduct

3. With another's use/enjoyment of her property

Front 18

Vicarious Liability: Employer-Employee (Respondeat Superior)

Back 18

Employer is liable for torts committed by employees within scope of their employment

* includes frolic/detour

NOT liable for intentional torts, unless:

1. Job requires force

2. Job creates friction

3. Tort in furtherance of employer's goals

Front 19

Vicarious Liability: Independent Contractor

Back 19

Employer is NOT liable for independent contractor's torts

Exception:

1. Inherently dangerous activities

2. Public policy considerations make duty non-delegable (injuring invitee/common carrier)

Front 20

Vicarious Liability: Bailor-Bailee

Back 20

Bailor is NOT vicariously liable for tortious conduct of his bailee

Bailor is negligent if he breaches his duty to inform gratuitous bailee of known dangerous defects