Torts Cases

Front 1

Negri

Back 1

if the PI has a prima facia case, it should not be dismissed

Front 2

Gordon

Back 2

constructive notice is that 1) a defect is visible 2) it exists for a sufficient length of time prior to the accident to be discovered and removed

Front 3

Byrne

Back 3

where the accident itself is prima facia evidence of negligence, the defendent must prove facts to rebut the presumption

Front 4

McDougald

Back 4

res ipsa when 1) the accident doesnt normally occur without negligence 2) teh defendant is in control of the circumstances

Front 5

Ybarra

Back 5

where a plaintiff receives unusual injuries while unconscious, all defendants who had any control over his body or the instrumentalities which might have caused his injuries may be called upon for an explanation of their conduct

Front 6

Standard of Care in Medical Malpractice

Back 6

usually established by an expert unless the lackof care is so obvious as to be within the layman's common knowledge

Front 7

Hammontree

Back 7

no strict liability for drivers with a known incapacitating condition

Front 8

Christensen

Back 8

employee acting in scope of employment is usually a jury issue. There's a 3 prong test.

Front 9

Brown V. Kendall

Back 9

recovery requires proving fault,
that is, proving that the defendants conduct fell below reasonable care

Front 10

Adams V. Bullock

Back 10

ordinary caution does not involve forethought of extraordinary peril

Front 11

Duty depends on

Back 11

probability, gravity, and burden

Front 12

Bethel

Back 12

relationships of dependancy is a circumstance. common carriers have to use reasonable care in the circumstances

Front 13

Goodman

Back 13

get out and look for a train

Front 14

Pokora

Back 14

reasonable care may make the rule inapplicable

Front 15

Trimerco

Back 15

when proof that the defendant was aware of a reasonable customary practice is coupled with a showing that it was ingored and that this departure was approximate cause of the accident, it may establish liability

Front 16

Anti-Trimarco

Back 16

when proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care

Front 17

Telda V. Ellman

Back 17

circumstances may justify violating a statute

Front 18

Martin V. Herzog

Back 18

unexused statutory omissions are negligence per se

Front 19

Matthies

Back 19

a physican should explain all reasonable courses of action to obtain a patients informed consent

Front 20

MacPherson

Back 20

privity is not an essential characteristic of duty (the car manufacturer

Front 21

Harper

Back 21

a boat owner hosting a social gathering doesn't have a duty to warn his guests

Front 22

Farwell/ Section 324

Back 22

1) when someone comes to the aid of another he is subject to the duty to take no action that would leave the victim worse off 2) friends spending time together socially are under the affirmative obligation to aid one another

Front 23

Moch/ Strauss

Back 23

public utility has no duty to those with whom it has no contractual obligation

Front 24

Child abuse duty

Back 24

every state requires those who have knowledge of child abuse to report it

Front 25

Tarasoff

Back 25

once a therapist does or should determine that a patient poses a serious danger, he has a duty to exercise reasonable care to protect the foreseeable victim

Front 26

Reisner

Back 26

a doctor who knows about a patient with HIV has a duty to reasonably protect foreseeable victims

Front 27

Randi W.

Back 27

an employer has the duty to foreseeable victims to use reasonable care in recummending a dangerous former employee

Front 28

Vince

Back 28

selling a car to an incompetent driver or finanacing a car for an incompetent driver gives rise to a duty to forseeable victims

Front 29

Reynolds

Back 29

a social host that supplies a minor with alcohol does not owe a duty of care to third persons

Front 30

Heins

Back 30

reasonable care to all lawful visitors

Front 31

Carter

Back 31

landowner categories, duty to: invitee: protect from known or reasonable discoverable dangers, licensee: protect from known dangers, trespasser: not willfully or wontonly harm, children: reasonable care to eliminate danger

Front 32

Kline

Back 32

landlord has a duty to reasonably mitigate risk to tenants

Front 33

Posecai

Back 33

businesses have a duty to reasonably protect patrons from foreseeable criminal action

Front 34

Broadbent

Back 34

there is no parental immunity

Front 35

Riss

Back 35

a city is not liable for negligence due to the police failing to provide protection from an attacker who had previously threatened a woman on numerous occasions

Front 36

Cuffy

Back 36

a city may be liable for police failure if the city 1) assumes an affirmative duty through words or actions 2) knows that inaction could lead to harm 3) has had direct contact with the injured party 4) causes the party's justifiable reliance

Front 37

Hoyem

Back 37

schools owe a duty of care to make sure kids don't wander off and get hurt

Front 38

Lauer

Back 38

city workers only owe a duty of care to the public regarding their ministerial functions

Front 39

Friedman

Back 39

qualified immunity:
when the government decides to take remedial action, they may be liable for failing to act within a reasonable time

Front 40

Federal Tort Claims Act

Back 40

the federal government waives its general immunity but is not liable for interest or punitive damages

Front 41

Duty: General Principle

Back 41

Whenever one person is, by circumstances, placed in a such a position with regard to anotehr person that if he did not use ordinary care and skill in his own conduct he would cause danger of injury to the person, a duty arises to use ordinary care and skill to avoid such danger

Front 42

Emontional distress: general principle

Back 42

does the court believe that a severe emotional harm is more likely than not under the facts of the case

Front 43

Falzone

Back 43

you may be able to recover for ED for a reasonable fear of immediate physical injury

Front 44

Buckley

Back 44

zone of danger rule permits ED claims only when defendants conduct placed PL in immediate risk of harm--or symptoms of a disease

Front 45

Potter

Back 45

when plaintiff fears developing disease due to exposure, he must show that it is more likely than not that the disease will develop

Front 46

AIDS ED

Back 46

the needle has to have the virus

Front 47

porter V jaffe

Back 47

PL may recover ED for witnessing the death or severe injury of a close relative but 1) plaintiff must have been close to the scene and witnessed it first hand 2) victim must be a close relative 3) injury must be severe.

Front 48

Johnson V Jamaica Hospital

Back 48

zone of danger rule was used to deny ED claim for kidnapping on the grounds that the parents were not the direct victims of the defendents negligence

Front 49

Gammon

Back 49

some courts dont have ED tests, they just allow recovery wherever injury is a foreseeable consequence of defendent negligence

Front 50

Stubbs

Back 50

the plaintiff must prove cause in fact to a prepordenance of the evidence. this doesn't mean he must eliminate all other possible causes, just establish that the defendant conduct was more likely than not a substantial cause of the injury

Front 51

Zuchowicz

Back 51

if causation can not reasonably be proved with evidence, it may be inferred where the plaintiffs harm was one of the core risks created by the def. conduct

Front 52

Daubert experts 4 points

Back 52

1) has the theory been scientifically tested 2) has the theory been published and or reviewed 3) what is the potential rate of error 4) is the theory generally accepted?

Front 53

Joint and several liability

Back 53

holds each of mulitiple defendants liable for the whole of plaintiffs injury

Front 54

Alternative liability

Back 54

summers V. Tice: burden shifts to def. where either one of 2 negligent defendents could have caused the harm

Front 55

Hymowitz

Back 55

where identification of the manufacturer of a fungible product is impossible (DEs) the several defendants may be held to market-share liability

Front 56

Proximate cause, general principle

Back 56

limits liability to certain harms based on fairness, common sense, and foreseeablility (harm within the risk)

Front 57

Wagon mound

Back 57

proximate cause is limited to foreseeability

Front 58

Benn

Back 58

foreseeablility does not limit proximate cause to eggshell plaintiffs

Front 59

Unexpected manner

Back 59

the exact sequence of events lending to an injury does not need to be foreseeable to hold a defendent liable so long as the actual harm caused was a foreseeable type of harm

Front 60

palsgraf

Back 60

a defendent is not liable to an unforeseeable plaintiff (whether by duty or PC analysis)

Front 61

Cardozo in Palsgraf

Back 61

the defendent only owes a duty to those in the foreseeable zone of danger

Front 62

Andrews in Palsgraf

Back 62

once someone acts negligently everyone injured by that negligence can recover because a duty to them has been breached

Front 63

Contributory negligence

Back 63

where Pl. conduct was the actual and proximate cause of Pl. injury, CN may be a total bar to recovery unless the def. had the "last clear chance" to avoid the Pl. injury

Front 64

Comparative negligence

Back 64

1) Pure: straight proportions
2) modified: P<50% = pure proportions
P>50% = total bar to recovery

Front 65

Fritts

Back 65

(drunk driver "causes" medical negligence) a Pl. comparative negligence is irrelevant when assessing subsequent medical negligence

Front 66

Dalury

Back 66

exculpatory agreements to not abrogate a business owner's duty to invitees to correct dangers which reasonably could have been foreseen and corrected

Front 67

Murphy (Flopper)

Back 67

you assume risks that are obvious and necessary

Front 68

Davenport

Back 68

Assumption of risk is not a complete bar to recovery unless it is greater than the defendent's fault

Front 69

Primary implied AOR

Back 69

Plaintiff implicitly assumes inherent risks--Question is whether def. legal duty encompasses the risk or not--this speaks more to the prima facie case than to a defense

Front 70

Secondary implied AOR

Back 70

plaintiff knowingly assumes risk created by defendent's negligence

Front 71

Strict Liablility

Back 71

look at dangerousness, social usefulness, avoidability of harm, is the activity common and appropriate for the location

Front 72

Indiana Harbor RR

Back 72

RST: abnormally dangerous 1) determine whether it was teh inherent danger or negligence that was the problem 2) because the transport of hazardous chemicals is valuable to society and it can be done safely with proper precautions, it doesn't get strict liability

Front 73

Rylands cases

Back 73

if you have something "likely to do mischeif" you keep it at your peril

Front 74

sullivan

Back 74

(blasting) if a landowner cannot use his land in a particular way without causing damage, he must either use his land some other way, or be held responsible for the damage

Front 75

MacPherson

Back 75

privity of contract is not required for a consumer to sue a manufacturer for a defective product

Front 76

Escola

Back 76

manufacturers are strictly liable for defective products based upon tort law rather than implied warranty in K law

Front 77

Vandermark

Back 77

1) manufacturer cannot insulate himself from liability by delegating the final inspection to a retailer 2) the retailer is strictly liable for defective products as well

Front 78

Elmore

Back 78

S. Ct. extends products liability to bystanders

Front 79

Trull

Back 79

if the pl. can show that the defect was a substantial factor causing damages over and above those sustained in the collision, then the burden shifts to the def. to show which injuries the collision caused

Front 80

Tests to determine "exsessive preventable danger"

Back 80

1) risk/benefits: which outweighs 2) consumer expectations

Front 81

Soule, consumer expectations test

Back 81

can only be used where the evidence permits an inference that the product didn't meet the minimum safety expectations of its ordinary consumers

Front 82

Camancho

Back 82

where the danger of a product is open and obvious the correct test is risk benefit, not consumer expectation

Front 83

Brown V. Brune

Back 83

no warning is required on a bottle of alcohol against the dangers of drinking

Front 84

Hood

Back 84

a manufacturer need not warn of every mishap or source of injury possible--the warning need only be reasonable

Front 85

Coffman

Back 85

the heeding presumption

Front 86

Campos

Back 86

pictoral warnings may be required for those who don't speak English

Front 87

"learned intermediary" rule

Back 87

manufacturers of perscription drugs don't have a duty to warn because consumers have to get them through a doctor--the manufacturer must warn the doctor though

Front 88

Vassallo

Back 88

a manufacturer need only warn of risks that were reasonably foreseeable when the product was sold or that could have been discovered through testing prior to marketing

Front 89

Sanchez

Back 89

consumer has no duty to discover a defect, but negligence beyond a failure to discover is subject to comparative responsibility

Front 90

Workers compensation

Back 90

bars tort suits against employers

Front 91

Jones

Back 91

what a 3rd party's modification makes a safe product unsafe, the seller is relieved of product defect liability even if the modification was foreseeable

Front 92

Royer

Back 92

No strict product liability for a health-care provider who sells a bad knee

Front 93

Liriano

Back 93

manufacturers have a duty to warn against foreseeable misuse and foreseeable alterations