Torts Ii

Front 1

general rule re: duty to rescue

Back 1

if you have done nothing to place the individual in the position of peril, there is absolutely no duty to rescue

Front 2

exceptions to the general rule that there is no duty to rescue

Back 2

1. special relationship btwn P and D
2.

Front 3

Good Samaritan Statute

Back 3

you are liable if willful or wanton negligence—if you stop to render aid and injure/exaggerate injury

Front 4

what is the majority/minority rule re: duty when the only injury is economic loss?

Back 4

Majority rule—no duty if the only injury is economic, b/c the only cause of action is in contract
Texas/minority rule—if the economic loss was foreseeable, there is a duty

Front 5

what is pure economic loss? what two categories are there?

Back 5

Arises when a person suffers pecuniary loss not consequent upon injury to his person or property
1. Negligent misrepresentation or misstatement causing economic loss; and
2. Negligent acts causing economic loss

Front 6

emotional distress

Back 6

Injury to the person of the P, but limited to the mind of the P

Front 7

mental anguish

Back 7

injury limited to the mind of the P which prevents them from performing those daily tasks of life which, until the injury, they could perform with ease (eating, sleeping, concentrating, etc)

Front 8

what is the general rule concerning the duty owed by owners and occupiers of land outside the premises?

Back 8

No duty owing to individuals off the premises as to natural conditions, no matter how foreseeable the risk

Front 9

natural conditions

Back 9

condition on the land untouched by man (i.e. rivers, lakes, hills, avalanches, rockslides, waterfalls, caves, etc) has not been changed, modified, or altered in any way—“as God created it”

Front 10

what is the exception to the general rule that there is no duty owed by owners and occupiers of land outside the premises?

Back 10

trees

Front 11

what is the majority view concerning the tree exception and the duty owed by landowners outside the premises?

Back 11

in a rural area, we follow the common law rule of no duty; but in an urban area, we require the landowner to exercise “ordinary care” (RPP)

Front 12

what is the evolving/minority view concerning the tree exception and the duty owed by landowners outside the premises?

Back 12

can no longer make distinction between rural/urban—landowner must instead use ordinary care in all circumstances (due to greater foreseeability of harm, denser population, etc); however common law rule on all other natural conditions apply

Front 13

Once you change, alter, or modify a natural condition, what is the duty?

Back 13

must exercise ordinary care and are responsible for foreseeable consequences

Front 14

what is the general rule concerning the duty owned to trespassers on the premises?

Back 14

no duty—trespasser takes the premises as they find it, and are entitled to no protection
however: presence cannot be anticipated

Front 15

what is the majority rule concerning the duty owned to trespassers on the premises?

Back 15

once owner becomes aware of the trespasser’s presence, he owes the duty of ordinary care (must do or not do what a RPP would do or not do under the circumstances)

Front 16

what is the TX rule concerning the duty owed to trespassers on the premises?

Back 16

if there is a trespasser on the property of another, no duty; once you become aware, you are required not to injure them intentionally or through gross negligence

Front 17

duty of reasonable lookout

Back 17

TX RRs have “duty of reasonable lookout” for individuals and cattle

Front 18

Licensees

Back 18

Individuals whose presence on the property of another is said to “tolerated” and as such they are considered to be like family

Front 19

what is the general rule concerning duty owed to licensees on the premises?

Back 19

no duty, but once we know they are on the property, we must exercise ordinary care of those dangerous conditions of which we have knowledge

Front 20

what is the majority/restatement rule concerning duty owed to licensees on the premises?

Back 20

must warn licensee of dangers of which you know or of which you should know

Front 21

what is the tx rule concerning duty owed to licensees on the premises?

Back 21

once you know of their presence, you must warn them of those conditions of which you have actual knowledge

Front 22

when we can’t decide between trespasser or invitee/business invitee, we often go with -----

Back 22

licensee

Front 23

what is the traditional rule re: duty owed to invitees on the premises?

Back 23

business guest; one that comes onto the property of another for the financial gain of the occupier

Front 24

what is the modern rule re: duty owed to invitees on the premises?

Back 24

one who comes onto the property of another for the purpose for which this property is intended to be used

Front 25

what is the majority/tx rule re: duty owed to invitees on the premises?

Back 25

invitee is one upon the land of another and he has entered for the purpose for which that property is maintained

Front 26

what is the general rule concerning the duty of a lessor to lessee?

Back 26

once the LL lessor leases property and conveys possession and control of the premises, they are “untouchable”—they have absolved themselves of any and all duty and liability

Front 27

what are the 6 exceptions to the general rule concerning the duty of a lessor to lessee?

Back 27

i. Lessor who conceals or fails to disclose any dangerous condition, whether natural or artificial
ii. Lessor transfers in a condition which he realizes or should have realized would cause a danger to those outside the premises
iii. Premises leased for admission of the public
iv. When lessor retain possession/control of common areas
v. Where the lessor contracts to repair
vi. When they are making repairs in a negligent manner

Front 28

what is the tx rule re: duty of the LL re: criminal activity?

Back 28

no duty to rescue, but where there is control of the premises, notice, and risk is foreseeable, there is a position that the LL is responsible to those individuals coming on to the property

Front 29

Doctrine of Last Clear Chance

Back 29

even if P was CN, if the D had the last clear chance to avoid the injury, the P could recover even if CN

Front 30

elements of the last clear chance doctrine

Back 30

1. D discovered the P’s perilous position;
2. in time to avoid the injury;
3. by the exercise of ordinary care, consistent with the means at hand

Front 31

does tx follow the Doctrine of Last Clear Chance

Back 31

no

Front 32

minority view: comparative negligence

Back 32

follow the PURE form of comparative negligence: if the D was 1% negligent, and the P was 99% contributorily negligent, the P can recover 1%

Front 33

majority view: comparative negligence

Back 33

follow the MODIFIED form of comparative negligence, either
1. Allows the P to recover as long as their contributory negligence does not exceed 50%; or
2. Allows the P to recover as long as their contributory negligence is not as great as the negligence of the D (49% would be limit—50%, no recovery)

Front 34

which modified form of comparative negligence does tx follow?

Back 34

P can recover as long as their contributory negligence does not exceed 50%

Front 35

Exculpatory clause

Back 35

clause in agmt whereby one party contractually limits the amount of their liability

Front 36

when will an exculpatory clause be upheld as valid?

Back 36

1. There was a equality in the bargaining positions of each party
2. Whether the party had notice
3. Whether there was mutual assent

Front 37

when will an exculpatory clause be held invalid?

Back 37

1. When the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence;
2. When the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other’s negligence; and
3. When the transaction involves the public interest

Front 38

Implied assumption of risk

Back 38

aka volenti non fit injuria—“he who submits to the injury cannot complain”; “he who agrees to the risk cannot thereafter be heard”

Front 39

Elements of volenti non fit injuria

Back 39

1. Individual does in fact know of the risk
2. They did in fact appreciate
3. Knowing and appreciating, did they voluntarily expose themselves to it

Front 40

are the elements of volenti non fit injuria analyzed from a subjective or objective perspective?

Back 40

fact questions for jury—subjective, not objective test-NO RPP, no SHOULD HAVE KNOWN