Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
153 Cards in this Set
- Front
- Back
|
What are the 4 elements of Negligence? |
Injury, Duty Breach and Cause (actual and proximate) |
|
|
What are two types of injury |
Physical harm, damage to property |
|
|
Is the element of duty a question of fact or a question of law? |
Question of law |
|
|
What is the default standard of duty |
Reasonable care not to harm another |
|
|
What can create an affirmative duty? |
Special relationship (common carrier to passenger, parent to child etc) Putting someone in peril Voluntarily undertaking a duty |
|
|
What stipulations come with taking on a voluntary rescue? |
Yes - once you begin you are required to see it through, and not to preform the rescue in a reckless manner |
|
|
Who do good Samaritan laws protect |
Off duty rescue workers |
|
|
What type of injuries does premesis liability apply to? |
Injuries that occur because of the land not just ones that occur on the land. |
|
|
What are the 3 statuses that someone can have when on someone elses land? |
- Invitee - Licensee - Trespasser |
|
|
What is an invitee? |
someone who is on the premises in response to an invitation given for the furtherance of the material or institutional goals of the possessor |
|
|
What duty of care is owed to an invitee? |
Reasonable care - warning of known but hidden danger and in some cases fixing issues on the property |
|
|
What is a licensee? |
On property with consent but not for the material or institutional benefit of the possessor |
|
|
What duty of care is owed to a licensee? |
May not be actively subjected to danger and must be warned of any known but hidden danger (danger that would not be reasonably observed) |
|
|
What is a trespasser? |
On another's premises without consent irrespective of if the person knows or intends to be a trespasser |
|
|
What duty of care is owed to a trespasser? |
no willful/wanton/active attempt to injur |
|
|
What are two examples of exceptions to the standard of care owed to trespassers? |
- Children: if possessor could reasonably foresee children trespassers may enter and would not appreciate the danger they are subjecting themselves to, they owe the child trespasser a duty of reasonable care - When possessor has reason to know of constant trespass on a limited area of their property, the possessor is obligated to warn of any dangers if those are hidden dangers known to the possessor. |
|
|
Can someones premesis liability status change while on a property? |
yes, if they move from an invited space into a non-invited space, or act in a way not permissable while in an invited space |
|
|
Is there a duty of reasonable care for economic loss without injury? |
no, there is not a general obligation to avoid depriving a persons economic prospects |
|
|
What is the minority exception (that includes NJ) to the rule of pure economic loss? |
There is a general duty not to cause purely economic harm to a particular person or identifiable class of people who the D can reasonably know will lose money from their negligent actions. |
|
|
What is a multi-factor balancing approach? |
A method used by a court when it is not prepared to say there is a clean line where a duty should be imposed, but instead is prepared to say what different aspects should be considered. |
|
|
Is Breach a question of law or fact? |
Fact |
|
|
What are the two ways in which breach is determined in an objective fashion? |
- Actions, not state of mind are considered - "Reasonable person" is a general. It's not are you doing your best, it's are you meeting the general standard |
|
|
How does the reasonable care standard apply to people with physical or mental disabilities |
- With physical disabilities the reasonable care standard is racheted to reasonable care for someone with that disability - There is no allowance for mental disability unless it is a discrete diagnosed disability. |
|
|
What is a "tender years doctrine" |
When before a certain age, children can not be found to act negligently as a matter of law. |
|
|
What exceptions are there to tender years doctrines? |
When a child takes on "adult activities" they are held to adult standards of reasonable care. |
|
|
How can parents be found negligent for their childrens actions? |
- negligent failure to supervise (knows of ongoign behavior and has an opportunity to intervene) - carelessly give child access to dangerous instrument |
|
|
What is the TJ Hooper Rule? |
Compliance with custom is relevant in determining reasonable care but it is not dispositive in determining reasonable care |
|
|
What is the Anti-TJ Hooper rule and when does it apply? |
Rule: Customary care is the standard of reasonable care. Is applied in cases of professional negligence (medical or legal malpractice) |
|
|
In a professional negligence setting, what is used to determine reasonable care? |
Expert testimony as to what the industry standard is, but not what the expert does personally |
|
|
What are the two standards of informed consent for medical malpractice? |
- Reasonable physician standard: What an ordinary Dr would disclose to a patient in the circumstances - Prudent patient standard: What a reasonable patient would find material in making the decision (not indexed to the particular patient) – NJ Rule |
|
|
What is the question of cause in an informed consent suit? |
Would the patient have made a different choice had the information been given to them? |
|
|
What is "The Hand Test" and what does it do? |
Burden = Liability x Probability Used to for cost benefit analysis to frame how much a person is expected to undertake to protect against a given possible injury |
|
|
What is one shortfall of "The Hand Test" |
It does not differentiate between a large loss suffered by one party and many smaller losses suffered by a wide swath of people |
|
|
Where does the burden of proof lie for breach and what is the standard of proof? |
Plaintiff and preponderance of evidence (it is more likely than not) |
|
|
What is Res Ipsa Loquitor and what does it do? |
"the thing speaks for itself" - a doctrine that under certain circumstances the burden of proof of breach shifts from the plaintiff to the defendant |
|
|
What circumstances need to be shown to invoke Res Ipsa Loquitor and to what degree do they need to be proven? |
Injury happens in a way that seldom occurs without carelessness on someones part. What caused the injury was in the exclusive control of the defendant or it was their ultimate responsibility Injury was not the result of or contributed to by the plaintiffs carelessness - All elements must be proven to a preponderance of the evidence |
|
|
What is negligence per se? |
Breach can be satisfied automatically if the action in question was one that violated a statutory rule or administrative regulation of conduct regarding safety The statute replaces the reasonable person standard |
|
|
What needs to be satisfied to invoke negligence per se? |
The rule needs to be enacted to: - protect the type of person harmed - from the type of injury felt that resulted from - the type hazard it sought to prevent |
|
|
What is the typical test for actual cause? |
"But for" test. The injury would not have occurred “but for” the breach |
|
|
When is there only one actual cause of an injury |
NEVER. Even the victim is an actual cause because "but for" their existence they would not have been hurt. |
|
|
What is the differnce between "thick" and "thin" causation? |
"Thick" causation - descriptive and normative. They both actually caused it and are morally the cause of it (drunk driver hitting someone) "Thin" causation - only descriptively the cause (the person caused themselves to be hit by walking down the sidewalk at that moment) |
|
|
What does it mean when an injury has multiple necessary causes / conditions? |
Multiple actors acted carelessly together to cause an injury. The injury would not have occured without both of them acting together and can therefore be jointly liable. e.g. Two cars driving carelessly smash into each other and the crash causes them to go up onto the sidewalk and hit a pedestrian that they would not have hit had they not hit each other first |
|
|
What does it mean when an injury has multiple sufficient causes / conditions? |
Multiple negligent acts occured at the same time or in a way that they are indistinguishable. Each of which on their own would be enough to cause the injury. e.g. two cars on their own recklessly drive up on the sidewalk and hit the same person at the same time |
|
|
What test for actual cause is used in cases of multiple sufficient causes / conditions? |
Substantial factor test because the but-for test fails in this situation |
|
|
What is Alternative causation / Alternative liability? |
A way for a Plaintiff to get joint and several liability over a group of negligent actors without being able to prove who among them caused a given injury. |
|
|
When can an alternative liability theory be used? |
All parties are negligent All are equally as likely to have caused the injuryOnly one actually caused the injury, we just don't know who it is |
|
|
When can market share liability be applied? |
- Harmful instrumentality had to be fungible (same across the board no matter who was producing it) - Large enough group of defendants that it is substantially likely to include the actual cause - P cannot prove which D was the actual cause through no fault of his or her own |
|
|
What is Market Share Liability |
An extension of alternative liability where a group of producers of an instrumentality of harm can be held liable for a plaintiffs damages pro rated to their % of market share |
|
|
What are the two modern tests of proximate cause? |
- Reasonable foreseeability - "Risk Rule" |
|
|
What is the test of reasonable forseeability as it applies to proximate cause? |
Is the injury among those which were reasonably foreseeable to someone in the defendants position when the defendant acted? |
|
|
What is the "Risk Rule" as it applies to proximate cause? |
Is the injury a realization of one or more of the risks that rendered the defendants conduct careless to begin with? |
|
|
Should Plaintiffs want injuries to be characterized more generally or specifically for the purposes of proximate cause? |
Generally so that they can be more easily seen to be why the action was careless in the first place. |
|
|
What issue does Palsgraf stand for |
Do duty and breach align? Is the breach of duty one that was owed to THIS P? |
|
|
What is a superseding cause? |
When subsequent acts of a 2nd tortfeasor block the liability of an earlier tortfeasor. |
|
|
What characteristic must a superseding cause have? |
Intentional or reckless wrongdoing |
|
|
What are exceptions to supersceding cause? |
- Medical Malpractice in treatment of an injury caused by negligence: The initial tortfeasor is jointly liable with dr. - If initial tortfeasor has an affirmative duty they are not exempt since they had a duty to protect |
|
|
What is contributory negligence? |
A defense that is rarely still in use. If P contributed at all to their own injury, then they have no claim |
|
|
What is comparative responsibility / fault? |
If P contributes to their own injury it can limit their damages but does not automatically bar the claim |
|
|
What are 3 different types of comparative responsibility / fault and which one does NJ use? |
1. Pure - Damages are pro-rated to the % of negligence each party contributed 2. Divided damages - Damages are equally split among careless parties 3. Modified (X%) - If P is a certain % or more contributorily negligent it bars the claim. Usually 50 or 51%, NJ goes by 51% |
|
|
What type of torts does contributory negligence not apply to? |
Intentional torts |
|
|
What is apportionment of liability? |
Splitting damages between two D's as opposed to D v P |
|
|
What is assumption of the risk and what type of defense is it? |
- Two types: Explicit and Implicit - In either, a competent P appreciates the risk of a situation and takes part in it anyway. - It is a complete defense - D is free of liability |
|
|
How does assumption of the risk overlap with no duty and comparative fault? |
- No duty: If P knew what they were doing, there is an argument that D no longer owed them a duty - Comparative Fault: There is an argument that assuming the risk is a carelessness that contributes to the injury. There care be a difference that P forefeited the right to complain about the careless conduct, which is different than saying P contributed to it |
|
|
What happens in an explicit assumption of the risk? |
Someone knowingly and with full appreciation of the risk agrees to waive rights to sue in advance. Usually in writing such as a waiver. |
|
|
What is required for an implicit assumption of the risk defense |
- P exercises complete or near complete control of interationg with the risk posed at least in part by D - P proceeds to confront the danger and understands its magnitude and is informed and voluntary - Needs to happen in a jurisdiction where they have not eliminated the defense in favor of comparative fault. |
|
|
When does the statute of limitations clock start running? |
At the time that the harmful act was committed and the harm has manifested |
|
|
When does the time start for a statute of repose? |
When the act is committed regardless of when the harm is caused. Used in products manufacturing |
|
|
What did the FTCA do? |
Waives fed govt sov immunity for claims that would be bringable against an individual. |
|
|
What are some protections fed govt has against tort claims despite the FTCA? |
No jury trial, no punitive damages, employees are immune during performance of duties, just govt is on the hook |
|
|
What types of actions does the fed govt have immunity from tort claims arising from? |
- Actions that are discretionary dealing with policy concerns that the act was meant to protect |
|
|
What is the public duty rule? |
Defense that goes towards establishing no duty, as opposed to immunity used when local govt failed to perform or negligently performed an affirmative duty. States that while the govt owes duties to the public at large, they do not owe them to individual members of the public |
|
|
What triggers an exception to the public duty rule? |
Parallels triggers for affirmative duty: - Voluntary undertaking - interaction that creates a special relationship (direct contact between agent and injured party) |
|
|
What forms can compensatory damages come in? |
Monitary or injunctive |
|
|
What is the current standard for awarding compensatory damages? |
"fair and reasonable compensation" in light of what P has suffered |
|
|
What is the eggshell skull rule? |
Once negligence is established the extent of the damages can be far more than what was foreseeable. The injury needs to be foreseeable, not hte extent of the damages |
|
|
What is P's duty regarding pre and post accident mitigation? |
- Always a duty to mitigate post accident - Split duty to mitigate pre-accident |
|
|
How is P not mitigating damages different than contributory negligence? |
Mitigation of damages is P's actions regarding the extent of the injury. Comparative fault has to do with Ps contribution to the cause of the injury. |
|
|
What is the Collateral Source Rule |
D cannot present evidence to show that P has received compensation for injuries from another source (e.g. insurance) |
|
|
What is Actio Personalis? |
Old theory that the cause of action dies with the person. Did not allow for claims to be brought for tort actions that killed someone. |
|
|
What are wrongful death actions / claims? |
Allows next of kin of a decedent to sue in their own right for things such as lost future income from the loved one, child caring services, loss of consortium. Not its own cause of action, just a new class of Ps |
|
|
What is a survival action? |
Estate of a decedent sues for claims on the rights of the decedent. Includes pain and suffering prior to the lethal injury but NOT future wages. |
|
|
When are punitive damages available? |
When P has been victim to "aggrivated" forms of mistreatment done with malice Malice can be willful conduct or knowing and wanton disregard of the safety of others |
|
|
What can a jury take into account in awarding punitive damages that they cannot in compensatory damages and why |
D's wealth to make sure that the punitive damages are enough to act as a deterrent. |
|
|
What is vicarious liability and what is the most popular form it takes? |
When one person or entity can be held responsible for the tortous acts of another who is acting on their behalf. Most commonly via respondeat superior. |
|
|
When does respondeat superior apply? |
When an employee commits tortuous conduct within the scope of their employment |
|
|
What is an example of vicarious liability that is not respondeat superior |
If you lend someone your car and they hurt someone you can be vicariously liable, even if lending the car was reasonable. |
|
|
What are examples of employer liability that are not responeat superior? |
Negligent hiring, negligent supervision |
|
|
How do you determine if someone is acting in their capacity for purposes of respondeat superior? |
- Was the action of benefit to the employer? - Characteristic of the activity test (broadness of characterization varies from jurisdiction) - Did the employee think they were acting in capacity (minority view) |
|
|
What does vicarious liability do to claims against the actual tortfeasor |
It supplements them, not replaces them so you can sue both not just one |
|
|
Do intentional torts fall under respondeat superior? |
Usually no, but there can be some exceptions. No: Nurse over-medicates a patient they have a grudge with. Medicating is characteristic but the intentional nature would make it an exception Yes: Bodyguard roughing up someone. Intentional but still in the characteristic of the job |
|
|
What is joint liability and when does it apply? |
Multiple tortfeasors are responsible for the totality of the damages owed to a plaintiff. This applies when independent actors cause an indivisible injury or when tortfeasors act in concert with one another |
|
|
What recourse does a defendant have if they have to pay 100% of damages that they are jointly liable for? |
They can get restitution from the other tortfeasor by bringing a contribution claim / action for contribution |
|
|
How does comparative fault interact with joint and several liability, and what system does NJ use? |
Varies by jurisdiction, most have statutorily decided. - Some jurisdictions state that contributory negligence overrules J&S since the jury has to decide how much each party contributed - Some say they both exist J&S has to do with cause of the injury, splitting %'s has to do with "fault" - NJ allows for J&S liability on any party who is more than 60% negligent |
|
|
What type of torts cannot be covered by insurance |
intentional |
|
|
What is indemnification? |
When a tortfeasor can have damamges assessed against them covered by a 3rd party. Usually accomplished through insurance or contract |
|
|
What is battery? |
When someone intentionally causes harmful or offensive contact with another. |
|
|
What needs to be intended in battery? |
- For offensive contact: intent is to make any kind of contact that would reasonably be considered offensive. - For harmful contact: intent needs to be to harm, but doesn't need to be the particular harm suffered |
|
|
What does intent mean in battery and assault? |
Either purposefully OR substantial knowledge the outcome will be produced, not both. Statistical knowledge is typically not sufficient |
|
|
What is assault? |
When someone causes reasonable apprehension of imminent harmful or offensive contact |
|
|
What does apprehension mean in the context of assault? |
Awareness, not necessarily fear |
|
|
What is the requirement to aid of abet someone? |
Incite, encourage or participate in concert |
|
|
In which ways can intent be transferred for intentional torts? |
- Across victims (try to shoot A and shoot B) - Across Torts (Try to shoot A and miss so its just assault) - Across victims and torts (Try to shoot A but just scare B) |
|
|
What is required to invoke self-defense for an intentional tort? |
Act must be to protect against a reasonable perception of imminent physical harms. |
|
|
When can deadly force be used? |
When there is reasonable fear of imminent serious bodily injury or death and there is no safe retreat from the situation. Threat cannot be conditional unless you are reasonably certain they will kill you either way. May NOT be used to protect property |
|
|
What are stand your ground laws? |
Laws that in certain situations (usually when you're in your own home) the "safe retreat" exception to using deadly force is removed |
|
|
What is the reverse eggshell skull rule in regards to defending property? |
If you use reasonable force to protect your property, but the injury is greater than expected you are not on the hook. It goes by the force used not the damage done. |
|
|
What is factored into implicit consent? |
Activities surrounding the contact such as past relationship, age, gender and sophistication of parties |
|
|
What is explicit consent? |
Express written or verbal consent from an informed and sound minded person |
|
|
What must be taken into consideration if D believes that P consented but was mistaken? |
- was the belief reasonable? - was it based off direct actions / words from P, not just being told by a 3rd party that consent existed |
|
|
What can void a consent? |
- Use of fraud or deceit
- given by someone who D knows has a mental defect - consent is in violation of public policy concerns |
|
|
What is false imprisonment? |
When A intentionally confines P and P is aware of that confinement |
|
|
What are the ways in which someone can confine another for the purposes of false imprisonment |
- Physically confined in a particular space (size is not dispositive) - May not be impossible to leave, but can be dangerous for P to do so. - D acted in a way that overcame P's free will |
|
|
What is intentional infliction of emotional distress? |
When D acts in an extreme or outrageous manner that intentionally causes severe emotional distress in P. |
|
|
What constitutes extreme / outrageous behaviour in regards to IIED, and is it a matter of fact or law? |
Actions that are so extreme that they go beyond all bounds of decency, utterly intolerable in a civilized community. Courts are split as to whether its a matter of fact or law |
|
|
What is required of intent for IIED |
Purposefully, having substantially certain knowledge of the outcome, or reckless disregard |
|
|
What is the test for "severe" emotional distress |
"no reasonable person should be expected to endure it". Does not require physical manifestation but does then require circumstantial evidence |
|
|
What is the relationship between IIED and other torts? |
IIED is a gap filler tort, it only comes into play when no other torts apply. If any other tort applies to the action you need to go for that one first |
|
|
What is an example of IIED |
A severe threat of future harm so that it is not assault (no imminent threat) but still causes great emotional distress |
|
|
What is negligent infliction of emotional distress? |
Emotional harm stemming from negligent conduct. Its not so much its own tort, but negligence acknowledging a new type of injury. |
|
|
What is the default rule and exceptions for Pure NIED |
- Default: No duty to prevent NIED - Exceptions: - Special relationship - Zone of Danger - Bystander Liability |
|
|
Zone of Danger |
When D negligently subjects P to imminent bodily injury which P is aware of, but does not come to fruition. The emotional distress must have a physical manifestation. Mistaken thought that you were put in danger does not count. |
|
|
What is bystander liability |
- D negligently injures Person 1 - Person 2 is a close relative of person 1 and sees the injury and knows its person 1 - Person 2 suffers emotional distress beyond what a normal bystander |
|
|
What are the strict liability torts? |
Property Torts: Trespass, nuisance, conversion Ultra hazardous activities |
|
|
What are some arguments for having strict liability |
Just because your actions are reasonable, doesnt mean P should have to pay for damage you cause Unjust enrichmnet When a risk is created, however small, the person creating it is the fairest to deal with it |
|
|
What is trespass? |
D intentionally occupies or causes physical invasion of P's real property (land) that P has a right to exclude people from. |
|
|
What is a unique defense of trespass? |
Necessity - trespassing to save human life or bodily injury Sometimes if you damage the land during a necessary trespass you may still beed to reimburse the property owner but it is contested so it is viewed as an incomplete defense. |
|
|
What does the intent component of trespass relate to |
The intention needs to be to be on the land, not to trespass specifically. You can trespass without knowing its not your land |
|
|
Where do land rights extend |
Down to the center of the earth, and up to space |
|
|
What happens if you go onto someones land but don't damage it |
Its trespassing, but there maybe no compensatory damages to award, but could be punitive or injunctive awards |
|
|
Who proves consent in trespass and what do they need to prove? |
Burden of proving consent is on D Consent must be to the specific area of the land and the activities done on it |
|
|
What is conversion? |
Wrongfully appropriate or destroy someone’s non-land property so that the owner is entirely deprived of its use |
|
|
What is trespass to chattel? |
Interfering with someones use of their own non-land property. Can be very slight. Can be intangible property |
|
|
What is nuisance? |
When unreasonable activity of D creates ongoing interference with P's use and enjoyment of their own private land |
|
|
What is the reasonable inquiry in nuisance? |
The unreasonableness needs to be the nature of the action. Zoning can help establish reasonableness but is not dis positive of it. |
|
|
What are the factors to consider in determining if an activity is an nuisance? |
- Location - Character of neighborhood - Nature of nuisance - Frequency of intrusion - Effect on Ps enjoyment of life, health and property |
|
|
What are permanent damages in regards to nuisance? |
D buys P out of the property at market value without the nuisance present. |
|
|
What are the assumptions under which Coase theorem are based? |
- two players each excluding the other from doing what they want on their land with no fault - legal rules should be designed to allocate resources in the most efficient manner - There are no transaction costs: all parties have perfect information |
|
|
What is the conclusion of the coase theorem in a transactionless world? |
The initial allocation of land rights in a nuisance case is irrelevant because the more efficient user will buy out the less efficient one if need be. |
|
|
What is the conclusion of the caose theorem in the real world (with transactions) |
laws should be designed to get to a transaction cost-less world. Courts should ask what rules & decisions would allow the parties to determine the most efficient allocation of resources among themselves |
|
|
What is an ultra hazardous activity? |
An activity that is so uncommon and of high risk that injuries stemming form it have strict liability. |
|
|
What are the factors in determining if an activity is ultra-hazardous or not? |
- high degree of risk - liklihood that resulting harm will be great - inability to eliminate all risk - not an activity in common usage - activity is inappropriate for the place its done - Balance of value to community and dangerous attributes - Big Q: Is the risk so unusual in magnitude or surrounding circumstances that the imposition of strict liability is reasonable? |
|
|
What kind of liability is products liability |
Form of negligence liability with some strict liability elements |
|
|
What is Products Liability |
D sold a product D is a commercial seller of such products The product was defective in some way when sold The defect was an actual and proximate cause of an injury to P |
|
|
Who constitutes a seller for the purposes of product liability? |
Anyone in the stream of commerce: Manufacturer, retailer, distributor. You can get J&S laiiblity on them. |
|
|
What are the 3 types of product liability defects |
- Manufacturing defect - Design defect - Failure to warn |
|
|
What is a manufacturing defect and how do you prove it? |
- in manufacturing a product deviates from its intentional design - prove it by comparing it to other items in the line and seeing if it differentiates |
|
|
What is a design defect and how is it proven in majority and minority? |
- When the design of the entire line of products is defective for the products purpose. - Proven using the risk utility test (majority) or the consumer expectation test (minority) |
|
|
What is the risk utility test? |
Does the risks of the design outweigh the benefits. Makes juries essentially figure out if they can design it better. Can make safety upgrades of a particular part seem like a no-brainer without showing that makeing that upgrade on ALL the parts would be a significant burden |
|
|
What is consumer expectation? |
Test of design defect: Is the product as safe as a consumer reasonably expected it to be
|
|
|
What needs to occur for a failure to warn product defect? |
- Safety demands product needs a warning, and it doesn’t have one surrounding its foreseeable risks - Need to show having the warning would have prevented the injury |
|
|
In products liability, who needs to be injured and how do they need to be injured? |
P can be anyone hurt by the product, not just the buyer. They need to be hurt using the product in a reasnoable foreseeable way, not just its primary intent. |
|
|
What defenses are there to products liability |
Same as negligence: comparative fault, assumption of the risk etc |
|
|
When will a "coming to the nuisance" defense work? |
When P moved near the nuisance as a one off, not part of a general changing and development of the neighborhood. |
