Torts

Front 1

NEGLIGENCE

Back 1

A duty by the defendant to conform to a specific standard of conduct to protect the plaintiff against unreasonable risk of injury and defendant breaches that duty, causing plaintiff injury and the plaintiff suffered actual damage

Front 2

DUTY

Back 2

Defendant owes a duty to behave as a reasonably prudent person

Front 3

DUTY - MAJORITY VIEW (CARDOZO)

Back 3

Defendant owes a duty only to foreseeable plaintiffs or persons within the zone of danger

Front 4

DUTY - MINORITY VIEW (ANDREWS)

Back 4

A duty is owed to all members of society

Front 5

RESCUERS

Back 5

Are foreseeable plaintiff's if the defendant negligently puts himself or a third party in peril

Front 6

STANDARD OF CARE

Back 6

Defendant must act as a reasonable person in the same or similar circumstances in the same community. Reasonable person is considered to have the same physical characteristics as the defendant but expected to know his handicaps and is under a duty to exercise the care of a person w/such knowledge. Individual mental handicaps not considered.

Front 7

NEGLIGENCE PER SE

Back 7

Clearly stated specific duty imposed by statute. It replaces the more general common law duty. Plaintiff must be a member of a class intended to be protected by the statute and defendant's conduct must be the conduct intended to protect from

Front 8

LICENSEE

Back 8

One who enters the land w/owners permission for her own purpose or business rather than landowner benefit. Requires:

1. Plaintiff on land w/permission

2. Landowner must warn of known dangerous defects & make reasonable inspection to discover defects that could pose dangerous conditions

Front 9

INVITEE

Back 9

One who enters the land in response to an invitation by the landowner. Requires:

1. Landowner to warn of known dangerous defects and

2. to make reasonable inspections

Invitee status is lost if scope of invitation is extended

Front 10

TRESPASSER

Back 10

One who comes on the land w/o permission or privilege. No duty owed to undiscovered trespasser

Front 11

DISCOVERED TRESPASSER

Back 11

Once landowner discovers a trespasser, he is under duty to exercise ordinary care to warn or make safe artificial conditions that involve risk of death or serious bodily injury the trespasser is unlikely to discover. No duty for natural conditions & less dangerous artificial conditions. Must take reasonable care in operations on land

Front 12

ATTRACTIVE NUISANCE

Back 12

Special duty for children. Requires:

1. Dangerous condition owner is/should be aware of

2. Knows/should know children frequent the area

3. Condition likely to cause injury b/c child is unable to appreciate the risk

4. Expense of remedy is slight compared to magnitude of risk

Front 13

OMISSION

Back 13

Generally requires no standard of care. SOC applies where:

1. Assumes duty to act by acting

2. Defendant placed plaintiff in peril

3. Special relationship between parties

4. 3rd parties but only if defendant has actual ability & authority to control the third party, holds public premises open to public or is liable for negligent failure to control the child

Front 14

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Back 14

Duty breached with defendant creates a foreseeable risk of physical injury to the plaintiff. Requires:

1. Plaintiff must be in zone of danger and

2. Plaintiff must suffer physical symptoms from distress

Front 15

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS - BYSTANDER

Back 15

Plaintiff outside zone of danger who see's defendant negligently injury another can recover for her own distress if:

1. plaintiff & person injured are closely related

2. plaintiff present at scene of injury and

3. plaintiff personally observed or perceived event

Front 16

AFFIRMATIVE DUTY TO ACT

Back 16

Generally, no duty to act unless:

1. Once defendant undertakes to act he must do so w/reasonable care (exception = good Samaritan laws)

2. Defendant created peril

3. Special relationship between parties

4. to prevent harm to 3rd parties

Front 17

BREACH

Back 17

Defendant's conduct falls short of standard of care owed to plaintiff

Front 18

RES IPSA LOQUITUR

Back 18

Requires:

1. Defendant has exclusive control over instrumentality that caused injury

2. Type of accident doesn't occur unless someone is negligent

3. Causation

4. Damages

Front 19

ACTUAL CAUSATION

Back 19

"But for" defendant's conduct, injury to plaintiff would not have occurred

Front 20

JOINT CAUSES

Back 20

SUBSTANTIAL FACTOR TEST

Where several causes join together to bring about the injury & one of the causes standing alone would be sufficient to bring the harm, defendant's conduct is a cause in fact if it was a substantial factor in causing the injury

Front 21

ALTERNATE CAUSES

Back 21

Two acts, one of which causes the injury, but it isn't known which one. Burden of proof shifts to defendant to show that his negligence is not the cause in fact of plaintiff's harm

Front 22

PROXIMATE CAUSE

Back 22

Foreseeable harm.

Requires defendant is liable for all consequences reasonably and foreseeably caused by defendant's conduct

Front 23

ACTUAL DAMAGES

Back 23

Not presumed/ No nominal damages

Plaintiff can recover for personal injury, emotional distress, property damage and punitive damages. Requires some proof of actual damage in the form of lost wages, pain & suffering or medical expenses

Front 24

DEFENSES TO NEGLIGENCE - CONTRIBUTORY NEGLIGENCE

Back 24

Plaintiff's contributory negligence bars recovery - "all or none"

Front 25

LAST CLEAR CHANCE

Back 25

In contributory negligence, the person with the last clear chance to avoid harm and fails to do so is liable

Front 26

COMPARATIVE NEGLIGENCE

Back 26

Bars recovery if plaintiff's negligence passes a threshold (gets zero if more than 50% at fault).

Front 27

PURE COMPARATIVE NEGLIGENCE

Back 27

Allows recovery no matter how great plaintiff's negligence is

NOTE - Rule on bar exam unless otherwise stated

Front 28

ASSUMPTION OF RISK

Back 28

Plaintiff denied recovery because she assumed risk - knew risk associated with conduct and chose to face it

Front 29

STRICT LIABILITY

Back 29

1. Breach of absolute duty to make safe

2. Actual cause

3. proximate cause

4. damage to plaintiff's person or property

Front 30

STRICT LIABILITY - ANIMALS

Back 30

Liable for reasonably foreseeable damage.

Wild animals - strictly liable as long as plaintiff didn't cause the injury

Domestic animals - strictly liable only if knew animals' propensity for danger and not common to species

Front 31

ULTRAHAZARDOUS / ABNORMALLY DANGEROUS ACTIVITIES

Back 31

1. Risk of serious harm to person or property

2. Activity can't be performed w/o risk no matter how much care is used and

3. activity not commonly engaged in the community

Liability extends only to foreseeable plaintiff's. Harm must result from anticipated danger from the activity

Front 32

DEFENSES TO STRICT LIABILITY

Back 32

1. Contributory negligence - applies only if plaintiff knew of the danger and his conduct caused the ultra hazardous activity to fail.

2. Comparative negligence - bars recovery if plaintiff's negligence passes threshold. Requires comparison of relative negligence of plaintiff and defendant