Torts Flash Cards

Front 1

What are the elements of negligence?

Back 1

a. Duty to observe a certain standard of care to avoid risks of harm to persons in the plaintiff’s position;
b. Breach of that duty of care;
c. Legal Causation; and
i. Proximate
ii. But For
d. Compensable Damages flowing from physical harm to person or property.

Front 2

When does a person have to use reasonable care?

Back 2

the courts have held, as a general rule, that we owe our neighbors the duty to take precautions to avoid reasonably foreseeable, unreasonable risks of harm to them which our conduct creates. Thus the foreseeability of the risk and the unreasonableness of the risk are the two cardinal elements of negligence under the common-law standard of care.

Front 3

When is a risk unreasonable?

Back 3

a risk is unreasonable if the burden of taking precautions to avoid it, in light of the utility of the defendant’s conduct, is outweighed by the magnitude of the risk which that conduct creates. Magnitude of risk, in turn, is a function both of the gravity of the harm that may result, and the probability that harm will result.
( Hand Test) B>PL

Front 4

If a person is injured and it was not foreseeable can they sue for negligence?

Back 4

The general rule is that we owe this duty to any persons who would be foreseeably endangered by the risk that our conduct creates. If someone should be injured who was not foreseeable at risk, that person will generally have no claim.

Front 5

Standards of care can be different, for example what standard of care must a child undertake?

Back 5

the general rule is that a child (a minor) must behave as a reasonable child of like age, intelligence, and experience under the circumstances. Despite this general rule, the child engaged in an activity which some states consider an “inherently dangerous activity,” and which others, following the Restatement, consider “an activity which is normally undertaken only by adults and for which adult qualifications are required,” Restatement (Second) of Torts § 283A cmt. c (1965), will be held to the usual adult standard of care. This exceptional duty of reasonable care is most often applied when children drive powerful motor vehicles.

Front 6

What are the elements of negligence?

Back 6

a. Duty to observe a certain standard of care to avoid risks of harm to persons in the plaintiff’s position;
b. Breach of that duty of care;
c. Legal Causation; and
i. Proximate
ii. But For
d. Compensable Damages flowing from physical harm to person or property.

Front 7

When does a person have to use reasonable care?

Back 7

the courts have held, as a general rule, that we owe our neighbors the duty to take precautions to avoid reasonably foreseeable, unreasonable risks of harm to them which our conduct creates. Thus the foreseeability of the risk and the unreasonableness of the risk are the two cardinal elements of negligence under the common-law standard of care.

Front 8

When is a risk unreasonable?

Back 8

a risk is unreasonable if the burden of taking precautions to avoid it, in light of the utility of the defendant’s conduct, is outweighed by the magnitude of the risk which that conduct creates. Magnitude of risk, in turn, is a function both of the gravity of the harm that may result, and the probability that harm will result.
( Hand Test) B>PL

Front 9

If a person is injured and it was not foreseeable can they sue for negligence?

Back 9

The general rule is that we owe this duty to any persons who would be foreseeably endangered by the risk that our conduct creates. If someone should be injured who was not foreseeable at risk, that person will generally have no claim.

Front 10

Standards of care can be different, for example what standard of care must a child undertake?

Back 10

the general rule is that a child (a minor) must behave as a reasonable child of like age, intelligence, and experience under the circumstances. Despite this general rule, the child engaged in an activity which some states consider an “inherently dangerous activity,” and which others, following the Restatement, consider “an activity which is normally undertaken only by adults and for which adult qualifications are required,” Restatement (Second) of Torts § 283A cmt. c (1965), will be held to the usual adult standard of care. This exceptional duty of reasonable care is most often applied when children drive powerful motor vehicles.

Front 11

What STOC does a disabled person have?

Back 11

physical disability is expected to conduct herself as would a reasonable person of ordinary prudence who had such a disability.
For example, the blind person is not contributorily negligent merely because she fell into a hole that a sighted reasonable person of ordinary prudence would have walked around, but is contributorily negligent if a reasonable blind person of ordinary prudence would have used precautions (a cane or seeing-eye dog, for instance) that would have averted the risk of falling into the hole. (Old age can count sometimes too)

Front 12

What STOC does an insane person have?

Back 12

Unlike old age and physical disabilities, however, insanity is routinely held to be immaterial in determining the standard of care; the insane adult must conform his conduct to the usual standard, even if medical experts believe that his insanity would have made it impossible for him to do so.
(Sometimes mental retardation is treated like the children rule)

Front 13

What STOC are professionals held to?

Back 13

A professional is held to the degree of skill, intelligence, judgment and training customarily possessed and exercised in similar cases by members of her profession in good standing. This standard is applied not only to members of the traditional learned professions—doctors, lawyers, architects, engineers—but also to members of other groups holding themselves out as possessing extensive (and usually intellectual) specialized training and expertise in a field where lay knowledge is typically insufficient to permit nonprofessionals to act effectively. Airplane pilots, for example, have been held to be within this professional standard of care.

Front 14

How do you prove professional negligence?

Back 14

Most states require the plaintiff to prove a breach of this professional standard of care by pre-senting the expert testimony of another member of the defendant’s profession. On the other hand, even if the defendant is a professional for purposes of the common-law standard of negligence, expert testimony will not be required if the negligence alleged is of a kind that the knowledge of lay jurors would permit them to evaluate—if, in other words, assessing the negligence of this kind conduct is thought to be within the common knowledge of lay jurors. So, for example, many courts won’t require expert testimony when the plaintiff claims that the defendant surgeon was negligent to have amputated the plaintiff’s healthy right leg when she had agreed to amputate the plaintiff’s diseased left leg.

Front 15

Who determines the STOC, and finds it at trial?

Back 15

Generally the jury finds the STOC, but in some cases it is decided as a matter of law.
Ex. The duty to stop look and listen at a train crossing.
(Then later cases it is the jury's job to determine whether the person stopped looked and listened.)

Front 16

What does the statutory standard of care in negligence entail?

Back 16

Second, legislatures have also enacted statutory tort claims. In these situations, statutes explicitly provide that a person harmed by specified conduct has a claim for money damages. Under such statutes, the relevant standard of care is set forth in the definition of the conduct that triggers the liability, which will be defined in the statute itself. In these cases, a statute explicitly creates a cause of action in tort.

Front 17

How does statutory things like speeding define STOC?

Back 17

It is evidence that a person would be acting unreasonably to violate the statute, but it does not make it 100% true.

Front 18

How does a Plaintiff invoke the negligence per se rule?

Back 18

1) that the plaintiff was a member of the class of persons the statute was intended to protect; and
2. that the harm which the plaintiff suffered was the type of harm which the statute was intended to prevent.

Front 19

What are the 5 elements of negligence per se

Back 19

(1) unexcused (2) violation (3) of a statute intended to protect a class of persons of which the plaintiff was a member, (4) against the type of harm that the plaintiff actually suffered, is (5) negligent per se.

Front 20

Who has the burden of showing negligence per se?

Back 20

The Plaintiff

Front 21

What does negative duty mean?

Back 21

This is the most common duty because at common law a person does not have the general duty to help others, just the duty to not harm them.

Front 22

What are the special relationships where a party might have a positive duty?

Back 22

Passenger and common carrier;
Guest and innkeeper;
Ward and temporary legal custodian;
Business visitor and landowner, at least as to land open to the public; and
Injured party and person through whose agency or instrumentality the party was injured, whether tortiously or innocently
Also further examples
the plaintiff is endangered by a third person the courts have sometimes also found a sufficient special relationship between the defendant and the third person—e.g., a parent’s duty to reasonably control his/her children and a psychiatrist’s Tarasoff duty to protect a patient’s intended victims from harm threatened by the patient.

Front 23

What duty is owed to a tresspasser?

Back 23

This duty has been formulated differently in different jurisdictions. Perhaps the most common definition of the duty to trespassers is that the possessor has only a duty to warn the known trespasser about known latent dangers on the premises, and a duty not to intentionally or recklessly injure the trespasser.

Front 24

What duty is owed to a child trespasser?

Back 24

One special class of trespassers—children—is owed a duty of reasonable care under the cir-cumstances. Under a doctrine called the law of attractive nuisance, the courts generally hold the possessor to the normal duty of due care if several conditions are met. The Second Restatement of Torts formulates the doctrine of attractive nuisance as follows: first, the child must be injured on a part of the defendant’s premises where the defendant has reason to know that children are likely to trespass; second, the defendant must have reason to know that the condition of the premises involves an unreasonable risk of harm to children; third, the child because of her youth must either not discover the condition or not realize its danger; fourth, the utility to the possessor of maintaining the condition and the burden of eliminating the risk of the condition must be slight as compared to the risk to the child; and fifth, the possessor must fail to use due care in eliminating the dangerous condition or in otherwise protecting the child.

Front 25

What is a liscensee?

Back 25

When an entrant is on the defendant’s land under some valid license, but is not there for the owner’s benefit, almost all states recognize a higher duty to the entrant.

Front 26

What is an invitee?

Back 26

Someone that is on the land for the owner's benefit.
When the entrant entered the land at the possessor’s invitation and for the business or commercial purposes of the possessor, she was regarded as an invitee, and was owed a general duty of due care, the care expected of a reasonable person of ordinary prudence in the landowner’s position.

Front 27

What is the duty owed to a licensee?

Back 27

This duty to licensees, as they are called, was often formulated as including the duty owed to trespassers, and as extending farther to include a duty to use due care in the conduct of active operations on the land, but not a duty to use due care to make the land safe in its natural condition. A majority of courts regarded the social guest as a licensee.

Front 28

What duty is owed to an invitee generally?

Back 28

was owed a general duty of due care, the care expected of a reasonable person of ordinary prudence in the landowner’s position.

Front 29

What are some modern developments with invitees and licensees?

Back 29

A significant minority of states have recently abandoned these older categories in favor of the simplicity of general negligence law. Under this newer approach, the possessor simply owes all entrants a duty of due care under the circumstances. To the extent that the entrant’s status as a trespasser, licensee or invitee is a relevant circumstance, then it should affect the factual determination of reasonableness under the circumstances. A middle group of states has kept the category of trespassers, and continues to hold the possessor only to minimal duties to trespassers, but has merged licensees and invitees, requiring possessors to exercise due care to avoid harm to all nontrespassers on the property.

Front 30

What is aggravated negligence, and its standards?

Back 30

Gross negligence
Ordinary negligence
Slight negligence
. . . is the failure to use . . . even slight care
ordinary care
great care (or “the utmost care”

The most common area in which one encounters one of these higher or lower degrees of negligence is when an injured passenger who was the social guest of a negligent driver sues the driver. Many states have enacted statutes, commonly called automobile guest statutes, that provide that the nonpaying passenger must prove gross negligence (or “wilful and wanton misconduct”) in order to recover. Another such rule recognized that common carriers, hotels and innkeepers, and sometimes public utilities, must use utmost care not to injure their patrons. They may be liable for the failure to use even slight care.

Front 31

The element of breach is short, what must one prove to show breach?

Back 31

the defendant’s conduct must in some way have failed to conform to one of these standards of care,

Front 32

What can an attorney do if they do not have evidence of breach?

Back 32

res ipsa loquitur: (1) the accident is a type of accident that usually would not happen unless someone had been negligent, and (2) the agency or instrumentality that caused the accident was within the defendant’s exclusive control, the jury may draw an inference from those facts that the defendant’s negligence caused the accident (and therefore caused the plaintiff’s injuries).

Front 33

What is legal causation?

Back 33

An actor’s conduct is legally a cause in fact of a particular consequence if it is the sine qua non of that consequence, that is, if it is a necessary condition for the occurrence of that consequence—if, in other words, but for the actor’s conduct, the consequence would not have resulted (hence the nickname for this rule, the “but-for test”).

Front 34

What are concurrent causes?

Back 34

Two or more concurrent causes may be causes in fact of particular conduct; in such a case an actor whose conduct is a cause in fact of harm is not relieved of responsibility merely because the harm has another concurrent cause in fact.

Front 35

What must a person show, or what test to use in concurrent causes cases?

Back 35

For an actor’s conduct to have been the cause in fact of a harm, when two or more concurrent causes join, but any one of them acting alone would have caused all the plaintiff’s harm, each need only have been a substantial factor in bringing about that harm, and need not have been a sine qua non of the harm. A cause is a substantial factor if it contributes materially to the result. It is not a substantial factor if it makes only an immaterial or trivial contribution.

Front 36

What is proximate causation?

Back 36

The doctrines of proximate causation, which are very slippery doctrines indeed (and are not always consistently applied), operate negatively to avoid liability even though an actor’s conduct is a cause in fact of a particular harm.

Front 37

What is the first doctrine of proximate causation, and how does it apply?

Back 37

One set of doctrines turns on the foreseeability of harm to the plaintiff. If the harm to the plaintiff is in some respect unforeseeable, it is frequently held not to be a proximate harm (that is, the defendant’s negligence is not one of its proximate causes). This is generally held to be the case when the harm is occasioned by the concurrence of the defendant’s negligence and an unforeseeable force of nature or act of god. This is generally not held to be the case when the harm to the plaintiff is also caused by (and generally aggravated by) some unforeseeable susceptibility or sensitivity of the plaintiff; the defendant who negligently harms a plaintiff with an abnormally and unforeseeably thin skull must compensate the plaintiff for his skull fracture even though a normal person would only have had a bump on the head.

Front 38

What is the proximate causation theory of direct causation?

Back 38

One line of authority has abandoned foreseeability of consequences altogether in favor of a rule of direct causation; the negligent defendant is liable for all harms directly caused—those harms caused by the operation of the defendant’s conduct upon the situation and conditions that existed when the defendant acted, without the later intervention of other causal agencies—regardless how unforeseeable these harms may have been.

Front 39

What is an intervening cause?

Back 39

The “rules” applied to an original tortfeasor’s liability when another causal agent also intervenes are quite fluid. Many courts recognize a liability for all harms caused, even when other causes intervene—i.e., come into play after the defendant has acted, and also contribute to the plaintiff’s harm—so long as those are normal intervening causes. A normal intervening cause is one which in hindsight seems to be a normal part of the aftermath of the accident, and which, though not altogether foreseeable, is not entirely foreign to the risk which the defendant’s conduct created.

Front 40

How does third person liability work?

Back 40

the intervening conduct of some third person has been held to shift the entire causal responsibility for the harm to that third person, and hence to break the chain of proximate causation between the original tortfeasor and the harm. In almost all of these cases the third person has some conventionally recognized protective relation to the plaintiff—such as parent to child and employer to employee—and has further discovered the danger created by the original tortfeasor, but has knowingly or negligently continued to expose the plaintiff to that danger. In one common group of cases parents discover that their child is in possession of blasting caps,

Front 41

What are the motives behind proximate causation?

Back 41

The real motive force in these cases seems to be some policy premise (often unarticulated and perhaps more often poorly understood) that it would be unwise to extend the legal responsibility of a negligent actor to all the harms which his negligence has caused. Often the results in these cases would be more forthrightly explained if the courts would simply recognize that the actor’s duty to the plaintiff is limited and, for policy reasons, does not extend to the prevention of these sorts of harms.

Front 42

What are compensatory damages?

Back 42

actual physical injury to person or to property. When the plaintiff does, compensatory personal injury damages are awarded to make the plaintiff whole; that is, to restore the plaintiff to status quo ante (the plaintiff’s condition before the defendant’s negligence), insofar as an award of money damages can do so.

Front 43

What is awarded with compensatory damages?

Back 43

almost all courts will allow an award for past and future pain and suffering; for past and future lost income, which usually means lost wages, but in a proper case can mean loss of earning capacity instead; and for past and future medical expenses. Some courts will even allow a separate award for permanent disability and disfigurement (separate, that is, from pain and suffering), and a few have allowed lost enjoyment of life as a separate head of damages.

Front 44

What is the theory behind compensatory damages?

Back 44

Making the defendant whole or returning them to the status quo ante,

Front 45

Under the general rule can a defendant recover more than once?

Back 45

No. But the law refuses to take other accounts of payment into account (ie insurance) Some courts now do take this into account.

Front 46

What are punitive damages?

Back 46

punitive damages may be awarded to punish the defendant for especially blameworthy misconduct, to deter the defendant from acting that way again, and to make an example of the defendant (hence one of their alternative names, exemplary damages). All but four states (Nebraska is among the four) allow punitive damages.

Front 47

What are the necessary elements to have punitive damages?

Back 47

they all require an element of aggravated misconduct beyond ordinary negligence. Some courts require that the defendant’s behavior have been willful and wanton, others that the defendant have been grossly negligent, and still others that the defendant have been reckless.

Front 48

How can a third person collect damages?

Back 48

even a third person, not the primary accident victim, will have a claim by virtue of injury to the plaintiff. These are distinct claims, not belonging for the most part to the plaintiff, but they are often identified not by the claimants who hold them, but by the different damages which characterize them, since the other substantive elements of each of these claims (duty and breach, for example) follow the traditional substantive rules of any recognized tort claim. Wrongful death claims (leading to wrongful death damages) are one such set of claims. Wrongful death damages are awarded under special statutory authority either to the decedent’s estate or to the near relatives of the decedent who were dependent upon the decedent; they are designed to replace losses accordingly.

Front 49

What are the elements for NIED?

Back 49

When a defendant negligently causes distress alone, without any physical injury, the general rule is to deny the claim, with two or three narrow exceptions. One or two of those exceptions occur when a plaintiff was in actual physical danger, and is distressed from the experience of avoiding physical injury. The other exception covers the distress experienced by a narrow class of bystanders, who see another person injured, and suffer distress as a result.

Front 50

What are contributory and comparative negligence?

Back 50

If the plaintiff endangers himself through his own negligence, and thereby contributes to his harm, the defendant will have either a contributory negligence or a comparative negligence defense, depending which defense the jurisdiction recognizes. All the elements of the contributory and comparative negligence defenses—the plaintiff’s creation of a foreseeable unreasonable risk of harm, which is a legal cause of the plaintiff’s damages—are the same as the elements of negligence in the plaintiff’s case-in-chief.

Front 51

What are the two variants of comparative negligence?

Back 51

Two main variants of the rule of comparative negligence are common: pure comparative negligence (the plaintiff’s award is proportionately reduced in all cases) and modified comparative negligence (the plaintiff’s award is proportionately reduced in some cases, and is barred in others). The rules of modified comparative negligence, in turn, are of two types: in the first type, if the plaintiff’s responsibility is greater than that of the defendant, the plaintiff takes nothing, but if the plaintiff’s responsibility is not greater than that of the defendant, the plaintiff recovers a proportionately reduced award; in the second type, if the plaintiff’s responsibility is greater than or equal to that of the defendant, the plaintiff takes nothing, but if the plaintiff’s responsibility is less than that of the defendant, the plaintiff recovers a proportionately reduced award.

Front 52

What is needed to show assumption of the risk in negligence cases?

Back 52

To prove the defense, the courts require a showing that the plaintiff did appreciate (subjectively—not merely that a reasonable person in the plaintiff’s position should have appreciated) the extent and nature of the risk to which she was exposing herself, and that she freely exposed herself to it (which will not be found if she had no reasonable alternative). Since the advent of comparative negligence, over half of the states have abolished the defense of implied assumption of risk, to avoid the problem of its obvious overlap with comparative negligence.

Front 53

What are the notice of claim statutes and what do they do?

Back 53

These statutes usually apply to tort claims against governments and government agencies. They require that, prior to filing suit in a civil court, the plaintiff/claimant first file a written notice of his claim with the government—most often either with a central claims agency or with the agency that has allegedly committed the tort against him. These notice-of-claim statutes generally give claimants a fairly short time to file this notice—periods of 90 or 120 days are fairly common. If the plaintiff does not file such a notice, his civil suit is barred. If the plaintiff files such a notice after the time has run, his civil suit is also barred. If the plaintiff does file his notice of claim in a timely fashion, the government then has another certain period of time within which to respond.