Torts Ii

Front 1

duty (element of negligence)

Back 1

duty to act reasonably to avoid causing physical harm to another person

Front 2

breach of duty

Back 2

once a duty has been established, p must now show that d failed to meet the reasonable standard of care

Front 3

actual causation

Back 3

the cause in fact connection between d's negligent conduct and the harm suffered by p (d's breach of duty has to be the direct cause of the harm suffered by p)

Front 4

proximate causation

Back 4

after establishing duty, breach, and actual causation, d is only liable for the injury to the extent that it was foreseeable

Front 5

harm (element of negligence)

Back 5

it is necessary for p to suffer actual, tangible harm in order to make out a primae facie case for negligence (physical injury or property damage)

Front 6

b>pl

Back 6

the burden of adequate precautions to avert the accident was greater than the probability that the injury will happen times the gravity of the resulting injury if it does (defendant wins, the risk taken wasn't unreasonable)

Front 7

b<pl

Back 7

the burden of adequate precautions to avert the accident was less than the probability that the injury will happen times the gravity of the resulting injury if it does (plaintiff wins, defendant took an unreasonable risk)

Front 8

the standard of care for owners of motor vehicles

Back 8

McAdo- the owner of a motor vehicle must exercise such care with his car as not to subject others to unreasonable risk of injury from its operation (law requires to know the condition of those parts which are likely to become dangerous where such flaws would be disclosed under a reasonable inspection)

Front 9

the standard of care under emergency situations

Back 9

Cordas- what may alternatively be negligent in different circumstances can be a proper defense if a person is acting under emergency, not of his own making, in which he is suddenly faced with a patent danger with a moment left to adopts a means of extrication (burden of taking adequate precautions was increased when taxi cab driver was held at gun point)

Front 10

custom evidence to show the reasonable standard of care for a particular field or practice

Back 10

Trimarco- must show the court that based on the conduct of others, this precaution is a feasible and practical one and is not a huge burden on the defendant thus defendant clearly fell below the standard of care (the cost to fix the fix the shower door to shatter-proof weighed against the likelihood and cost of the defected door injuring a person) but is mere evidence

Front 11

the standard of care for those with physical disabilities

Back 11

Roberts- the court takes into account any physical disability that the defendant has to determine whether or not he was negligent so only if a reasonable person with that limitation fell below the standard of care, would d be negligent (burden of having to use cane whenever he walked around weighed against the fact that he did not have his cane and injured someone)

Front 12

the standard of care for those with mental disablities

Back 12

when evaluating the standard of reasonableness for those with mental disabilities, we do not account for any of the defendant's mental deficiencies in making a determination of whether or not he was negligent (otherwise people would always act negligently and claim insanity as their defense or they can possibly say religion compelled a given course of action)

Front 13

the standard of care for professionals

Back 13

negligence is established by medical expert testimony requiring other physicians to state that they would have acted differently from the defendant had he been in those circumstances, otherwise the standard is measured by exercising at least average skill of a particular profession

Front 14

res ispa loquitor

Back 14

the presumption of negligence is inferred from the defendant having engaged in some type of activity that is likely to produce harm and the court does not know and cannot find out what actually caused the harmed but the finding of negligence is derived from knowledge of the causes of the type of accident

Front 15

the standard of care for minors

Back 15

a child is negligent if his conduct does not conform to that of a reasonably careful child of the same age, intelligence, and experience, except if the child is under five (incapable of negligence) or if the child is engaging in a dangerous activity that is characteristically undertaken by adults

Front 16

elements of res ispa loquitor

Back 16

1. the kind of accident that occurred must be one that doesn't happen without negligence
2. agent or instrument must have been in exclusive control of the defendant
3. the plaintiff could not have voluntarily contributed to the accident (no contributory negligence)

Front 17

how res ispa loquitor is used

Back 17

creates an inference of negligence, creates a rebuttable presumption of negligence, or it can create a presumption of negligence shifting burden to d

Front 18

d's defense against actual causation

Back 18

to escape liability of being the but-for cause of the plaintiff's injury, the defendant must prove that the accident would have happened anyway, whether he breached a duty of care or not

Front 19

duty to warn

Back 19

people do not generally have a duty to warn considering that the risks are generally obvious to reasonable people and even if the risks are not generally obvious to reasonable people, but the defendant can show that the plaintiff knew of the danger from other sources, then it cannot be said that the defendant's failure to warn actually caused the plaintiff's injury

Front 20

improbable consequences and special problems of proof

Back 20

using expert testimony to show a reasonable probability of causation (chlamydia lady gets jabbed in the eye with a pen)- here the plaintiff's medical testimony failed to show a reasonable probability of causation, although the presumption is that, but-for being jabbed in the eye, the plaintiff would not have gotten chlamydia

Front 21

direct cause (proximate causation)

Back 21

Marshall- there must be an uninterrupted chain of events that shows an independent act of negligence in between the breach of duty and the harm to prove that the injury was foreseeable (the longer the chain, the more difficult to prove foreseeability)

Front 22

indirect cause (proximate causation)

Back 22

Barry- when an intervening act of negligence occurs during the original negligence and the ultimate injury, a person is not liable for negligence in these instances (same rules of analysis for indirect and direct cause)

Front 23

thin skull rule

Back 23

if d has breached a duty, and if it is the actual and proximate cause of some injury, and as a result of that breach of duty the plaintiff has unusual sensitivities and suffers a greater injury than the typical plaintiff, d must take the injury how he gets them as long as the injury itself was foreseeable, then the extent of that harm doesn't have to be foreseeable because d assumes that risk

Front 24

duty to rescue

Back 24

default- there is no duty to rescue except if d put p in peril, there was a voluntary undertaking, or special relationship

Front 25

duty to rescue when d put p in peril

Back 25

if d, through any conduct (even innocent conduct) put p in a situation where he was helpless, as long as d knew or had reason to know that as a result of his conduct p would be in danger, then d put p in peril

Front 26

duty to rescue when there was a voluntary undertaking

Back 26

when d begins the rescue, he has assumed the duty to continue the rescue if- d has induced reliance to the plaintiff's detriment by either beginning a rescue and not finishing it, or completing a rescue that someone else could have performed better; or if d's failure to act reasonably increases the risk of harm to p beyond the risk if d had done nothing in the first place

Front 27

good samaritan laws

Back 27

if by good faith, d begins a rescue, even if he was negligent, he cannot be held liable for the injury that results (to encourage ppl to rescue)- two types: universal and limited to trained professionals

Front 28

universal good samaritan laws

Back 28

immunizes anyone who attempts a rescue even if they make matters worse (but do we want untrained ppl rescuing?)

Front 29

limited to trained professionals good samaritan laws

Back 29

when medical professionals intervene to rescue, they are immunized, but not those who lack special training

Front 30

duty to rescue when there is a special relationship between p and d

Back 30

two types- there is an obligation of a business to its customers (invitees) and when there is a statutorily created relationship (ex.- parent and child)

Front 31

pure economic loss

Back 31

loss profits, income, wages (damages other than physical and property)

Front 32

majority position on pure economic loss

Back 32

cannot recover for pure economic loss

Front 33

middle ground position on pure economic loss

Back 33

can recover for pure economic loss only if p is a particularly foreseeable plaintiff as apart of an identifiable class which gives d a heightened requirement to mitigate the harsh effects of no recovery majority position

Front 34

premises liability

Back 34

when tort law and property law intercept- if not in a category jurisdiction then assess reasonableness, otherwise apply the limited duty rules that govern the conduct and liability exposure of a land owner/occupier (status of the entrant is determined at the time of the alleged tort)

Front 35

trespasser

Back 35

an occupier of land without permission from the land owner

Front 36

licensee

Back 36

an occupier of land with permission, not for the benefit of the landowner, but usually for social purposes so the owner here has a duty to warn the licensee of known hidden traps, or in the event that the owner is conducting an active operation that may subject people to risk

Front 37

contributory negligence

Back 37

an affirmative defense that applies if p contributed to his own injury by acting unreasonably thus the injury would not have occurred but-for p and d's negligence so p is awarded nothing (not common because it's too harsh)

Front 38

invitee

Back 38

an occupier of land usually for business purposes and for the benefit of the landowner; no special duty to warn

Front 39

comparative negligence

Back 39

when p might be a but-for cause of his own injury, p may be able to recover (unlike contributory negligence jurisdictions) depending on his liability in comparison to d's- two types: pure comparative and modified comparative fault

Front 40

pure comparative negligence

Back 40

when p always get something based on the percentage of his fault (pure 100% - fault%)

Front 41

modified comparable negligence

Back 41

a hybrid between contributory negligence and pure comparative negligence that has two types of jurisdictions (50% cutoff vs. 49% cutoff)

Front 42

50% cut-off jurisdiction for modified comparable negligence

Back 42

if p is 50% at fault, then he gets 50% recovery
if p is more than 50% at fault, then he gets nothing (treated like contributory negligence)

Front 43

49% cut-off jurisdiction for modified comparable negligence

Back 43

if p is 50% at fault, then he gets nothing
if p is less than 50%, then the court will treat it as pure comparative fault and award the plaintiff 100% - p's fault %

Front 44

assumption of the risk

Back 44

a defense (contract or tort) to negligence that d uses to escape liability by saying that p assumed the risk when he engaged in certain conduct (can be either expressed or implied assumption of the risk)

Front 45

express assumption of the risk

Back 45

a contract defense to the tort of negligence where p has signed a contract stating that he would not sue d for negligence thus all claims for negligence against d will be barred unless insufficiently clear/insufficient scope or contract void as against public policy

Front 46

implied assumption of the risk

Back 46

a tort defense to the tort of negligence that can be either primary or secondary where p saw the risk and is barred from recovery

Front 47

primary implied assumption of the risk

Back 47

not an affirmative defense but d argues that his conduct that might otherwise be unreasonable was reasonable under the specific circumstances b/c the activity involved a certain kind of risk which p was aware of (inherently dangerous activity)

Front 48

secondary implied assumption of the risk

Back 48

an affirmative defense when d was negligent but p made a conscious choice to assume the risk (ex. landlord caused building to catch on fire yet plaintiff ran in the burning the building to save a pair of shoes- p has secondarily implied assumption of the risk)- varies by jurisdiction to whether d would assume the risk if running in the burning building to save a baby as opposed to his new shoes (not an inherently dangerous activity)

Front 49

modified secondary assumption of the risk

Back 49

same as secondary implied assumption of the risk but here if p ran in the burning building to save a baby versus a cd then under modified secondary assumption of the risk, we weigh the negligence and do a reasonableness test

Front 50

strict liability

Back 50

when the court refuses to apply a standard of care and finds that d is negligent solely based on his breach of duty to avoid injuries in a particular activity

Front 51

strict liability activities

Back 51

possessing wild animals and engaging in abnormally dangerous activities

Front 52

possessing wild animals

Back 52

strictly liable if one possesses an animal that is wild and even if the animal is not wild, but you knew or had reason to know of its dangerous propensities, then strictly liable

Front 53

abnormally dangerous activities

Back 53

engaging in any activity that involves a high risk of harm, a high magnitude of harm, an inability to avoid the risk of harm, and if the activity is not a manner of fair/common usage, then strictly liable

Front 54

pure/strict implied assumption of the risk

Back 54

same as implied assumption of the risk where one assumes the risk to run in and save her baby out the burning building