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66 Cards in this Set
- Front
- Back
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Duty |
We owe the duty of the reasonably prudent person Herman This is an Objective Standard |
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Learned Hand Theory |
B < LP B - Burden L - Loss P - Probability If the burden to take action (or refrain from action) is less than the loss times the probability of harm, then the burden must be taken on |
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To Whom do you owe a duty? |
You owe a duty to people that are in your zone of danger You owe a duty to those that: - You know your actions will affect - You are substantially certain your actions will affect - People you are in privity contract with - People you are in a special relationship with Manufacturer - [Negligence] you owe a duty to the buyer & passenger (horizontal privity K - someone who is entitled to step into shoes of buyer) [Macpherson v. Buick Motor Co.] |
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Those on your land |
Licensee - Social Guest [someone allowed to be on your property] Invitee - Business/Social [comes to your home to do business w/ you or to your business; someone you asked to be on your property or gave them permission] Innkeeper/Common Carrier - Hotels, Cabs, Ambulance, Inn, Buses, Trains, Stores, Businesses for the public Trespasser - someone on your property without permission or the right to be there |
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Those on your property (landowner situation) |
- Innkeepers/Common Carriers: owe the highest duty of care - Invitees: RPP Standard (Herman)
- Licensees: Warn of hidden dangers - Trespassers: Not to set traps [if you do you must put up a warning] |
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Land FL Exceptions |
Licensees & Invitees are owed the same duty - RPP [Herman] Uninvited Invitees - [considered trespassers] Once you discover a trespasser - you owe them a duty to warn of known hidden dangers In FL - you owe them RPP But - once you tell them to leave you no longer owe them a reasonable care duty |
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Attractive Nuisance |
Something that will bring kids onto your property [ex. pool with rubber ducky] Child - is considered an implied invitee [is owed a duty of reasonable care] Landowner - owes a duty of reasonable care & caution which a prudent person would & should exercise not to injure the child intruder |
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Alternatives to the RPP standard |
Emergency Doctrine Innkeepers/Common Carries - Owe highest duty Children - AMEE; Age, Maturity, Experience, Education *a subjective standard to RPP *exception - when a child engages in adult activity - they are held to the standard of an adult conducting that activity [ex. driving a car] Mental Age of a child - varies with jurisdiction Insanity - does not relieve you from liability Physical disability - You are held to the RPP standard of Herman in that situation [ex. blind, deaf, etc.] Customs of community or industry - will be taken into account, but are not controlling if the reasonable person would not follow them. *Just because something is custom you are still held to the RPP [herman] standard - if Herman would do more you should've done more |
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Emergency Doctrine |
Standard is the reasonably prudent person in an emergency situation Ex. Cordes v. Peerless Trans Co. [Taxi Cab case] You are not expected to conduct a B < LP analysis in the situation but you are held to the "Emergency Herman" standard |
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Professionals (Duty) |
The minimum standard of care for professionals is competence and care customary in similar communities among the same profession - When you act as a professional, you will be held to that standard (ex. person in restaurant tries to save a life - will be held to the same standard of a doctor) - Standard of care is relative to the area of practice/specialty - Locality Rule: standard of care is relative to the community - Informed consent (doctors): they must tell patients about all material risks involved in their treatment, available alternatives, etc. [if it is not a material (essential) fact then they do not have to tell you] - Purple toe example |
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Breach |
Conduct that falls below the requisite standard of care *Always explain why there is a breach and what happened |
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Negligence Per Se |
1. Violation of a statute or ordinance 2. P suffers harm 3. P is within the class of persons intended to be protected by the statute or ordinance 4. The harm is the type of harm intended to be prevented by the statute - Explain why legislatures intended to protect that class - Burden on P to prove the violation and the harm - Negligence per se will create either a: Conclusive Presumption [FL] - If you are able to prove all of the elements - it is conclusive that the defendant was negligent Rebuttable Presumption [Common Law] - Lesser of a standard Violation of a criminal statute *Defendant can present evidence that Herman would have acted this way & that the harm would still have occurred & if the jury believes him then the defendant could win! [Must be the same type of harm] OR Mere Evidence: Prima Facie Case; jury is told they are permitted to find the defendant negligent if they find that he violated a statute - however they are not required to do so, even if the defendant introduces no evidence the jury can still find him "non-negligent" |
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Dog Bite Statute |
You own a dog, dog bites someone - you are liable Exceptions: (1) person who gets bitten provokes the dog (2) if you have a sign saying "bad dog" on it [But this does not cover keepers only owners] |
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Causation |
Cause in fact Cause at law *Must have BOTH kinds of causation to have a cause of action |
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Cause in fact |
But for the breach of duty, would the injury have occurred? - If D had acted as Herman would have acted, would the injury have occurred? If yes - then there is NO cause in fact |
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Cause at law (Proximate Cause) |
Is the type of harm that occurred the same as threatened by the negligence - Is the type of harm that occurred the type of harm that Herman would be concerned about under these circumstances? - Is the type of harm the type which makes up the "L" in B < LP If no - then there is NO cause at law |
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Degree of Harm |
Irrelevant; only the type of harm is relevant. If the plaintiff is particularly susceptible to a certain injury is injured in a far greater degree than you would have anticipated, you're still liable. "Take the plaintiff as you find them" - Eggshell Doctrine You expected a bruise and you shattered his skull, you're liable because you could reasonably foresee a head injury |
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Economic Loss Doctrine |
If your injuries are economic only and no physical harm to yourself or your property - you do not get to recover economic damages - Example: computer plugged in to desk charger, explodes and burns other computers attached & injures those around - you can recover because that is not purely economic |
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Concurrent Causes |
When separate acts of negligence combine to form one single injury both negligent people will be responsible only for the percentage the jury finds Two possible causes, but only one could have caused the injury: - Each D must prove that he/she was not the cause - If it cannot be proven, each will be liable for half of the damages |
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Superseding Intervening Causes |
Cuts off defendant's liability [completely] - AICU - Acts of god (hurricane, tornado, etc) - Intentional tort or criminal act (unless it could have been anticipated) - Unforeseeable event that occurs between the defendant's breach and the plaintiff's ultimate injury [if it is foreseeable you will still be liable] * Where an intervening cause occurs and it is one that Herman would not anticipate, we say that the intervening cause supersedes - Herman does not foresee criminal acts An intervening cause which merely aggravates an injury already caused by D's negligence will be liable only for the aggravation of the injury. D will still be liable to the amount that he/she was responsible for the injury without the aggravation caused by the intervening cause * A superseding cause which occurred subsequent to D's negligence, and without which P would not have been injured AT ALL, completely cuts off D's liability |
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Res Ipsa Loquitur |
Creates an inference that D was negligent but the jury doesn't have to accept this Plaintiff must show: (1) D had exclusive care and control of the instrumentality that caused the harm (2) The type of harm that occurred does not normally occur without negligence For surgery: (1) Injury occurred during surgery or recovery (2) Plaintiff was under anesthesia (3) Injury is unrelated to surgery |
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Rescue Doctrine |
Danger invites Rescue - so rescue is foreseeable D will be liable to the rescuer who is injured while attempting to save the victim of D's negligence So long as the rescue is not wanton or reckless |
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Defenses to Negligence |
Contributory Comparative Assumption of Risk Sovereign Immunity Parental Immunity Inter-spousal Immunity |
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Contributory Negligence |
In a contributory negligence jurisdiction, if P is negligent AT ALL, P recovers nothing |
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Last Clear Chance Doctrine |
Who had the last chance to avoid or prevent the injury? The one with the last clear chance will bear liability |
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Comparative Negligence |
Pure: In FL - % of recovery barred is equal to percent that P was at fault In FL, with multiple defendants: liability is proportionate, not joint & several 50/50 Rule: If P is more than 5% at fault, P will not recover anything If P is less than 51% at fault, P will recover minus P's own percent at fault Slight/Gross Rule: If P's fault is slight and D's is gross, P recovers P's recovery will be reduced by the % of P's fault If P's fault is gross and D's is slight, P will not recover |
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Assumption of Risk |
D will not be liable if P has assumed the risk, either expressly or impliedly, so long as the assumption was voluntary, not created by necessity Express: Contractual (written or oral) or participation in contact athletic event Implied: (voluntarily assuming a known risk) (1) Risk of harm is caused by D (2) P is aware of the risk (3) P voluntarily confronts the risk Involuntary: P is NOT barred from recovery * P assumes the risk of entering a burning house to save a child * P knows the bathroom floor is rotten, but has to go Voluntary: P IS barred from recovery * P assumes the risk of entering into a burning house to save his hat |
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Sovereign Immunity |
Applies to nation, state, municipality Planning Level: bad planning will NOT incur liability Ex. - state decided not to put up a guardrail, car goes into a canal, state not liable Operational Level: poor execution WILL incur liability Ex. - state puts up guardrail, it's faulty, car crashes through it into canal state will be liable |
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Strict Liability |
you do it, you pay; A ∆must pay damages although the ∆ neither intentionally acted nor failed to liveup to the HERMAN standard |
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Animals |
Those who keep, possess, or harbor the animal not just the owner If you know that your animal is vicious then you are liable |
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Domestic Animals |
Animals that we keep as pets; Only liable if you know that they are vicious; Not liable if they injure someone the first time |
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Domesticated animals |
Animals that work for us [cows, horses, sheep, etc] As long as they are on your property and injure someone; you will not be liable But once they leave your property - you are liable if there are any damages or injury |
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FL Domestic & Domesticated Animals |
Both together as pets |
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Wild Animals |
Always SL b/c they have a propensity to injure Ex. Lions, jaguars, bears, etc. the owner, keeper, or possessor of a wildanimal is strictly liable if the animal injures another; if the animal is one of a class thatis not indigenous to the locality, its escape does not prevent thepossessor from being liable for the harm done by the animal no matter how long after its escape; inthis case, the risk of liability continues until some 3rdperson takes possession of the animal [Case w/ Hurricane Andrew and the sale of the monkey] |
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Exotic Animals |
Snakes, Ferret, Parrot, Spiders, etc Treated as wild animals although some people may have them as pets |
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Circus & Zoo |
Wild Animals - Only liable for negligence |
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Abnormally Dangerous Activity |
Doing something that’s so dangerous that HERMAN wouldn’t do it; but westill do it b/c its so necessary to society (ex Fumigation) |
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Factors to determine with abnormally dangerous activity |
1. The existence of high degree of riskof some harm to the person, land or chattel of others 2. Likelihood of the harm will be great 3. Inability toeliminate the risk by the exercise of reason care 4. Extent to whichthe activity is not a matter ofcommon usage/custom (manure farm overflow into neighbor’s pond) 5. Inappropriate activity where carried on 6. Extent to whichits value to the community is outweighed by it dangerousattributes |
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Applying SL on abnormally dangerous activity |
- Must be in the zone of danger - Must look at the nature ofthe activity w/ relation to the harm to determine the strict liability |
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Defenses |
- If not within the zone of danger - you are not liable - Unforeseeable act of god - will supersede BUT the defendant must prove it - If someone steals dynamite and takes it away - you will not be liable - duty does NOT travel in that case - However - if you move your dynamite and it explodes then you will be liable - duty does travel in that case |
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Strict Products Liability |
liability of themanufacturer, seller or other supplier of chattels or product, to one with whomhe is not in privity of K, who suffers physical harm caused by the chattel orproduct is SL. Can get pain and suffering damages unlike workers comp |
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Warranties |
Express Implied |
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Expressed Warranties |
Seller states facts to the buyer Can be written or oral |
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Implied Warranties |
Not specified in the terms of the contract, but are implied by the UCC A seller cannot disclaim a warranty of title Implied warranty of merchantability Implied warranty for fitness of purpose |
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Implied warranty for merchantability |
Goods are fit for the ordinary purposes for which such goods are used Ex. - whether the food contains a substance which youwould ordinarily expect in the substance - test for food substances (merchantability) i.e. walnutshell found in wal-nut ice cream, don’t usually expect wal-nut shell inice-cream |
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Implied Warranty for fitness of purpose |
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller's skill or judgment to select or furnish suitable goods Ex. - engines for house boat; told they were the rightones for house boat, were not; implied warranty for fitness of purpose wasbreached; Specific knowledge of sellerof specific need of the buyer and the buyer relying on the seller’s expertiseto create this very unusual warranty of fitness for particular purpose; don’thave to be this specific for |
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Hypo - |
Captain Ahab walking on deck with wooden legmade for slippery deck on boat; it was fit for the purpose of helping him walk;this was a merchantabilitywarranty that was breached; if they were slaughtering a whale,slippery gooey guts on deck and Capt. Ahab slips, now you have breach of warranty forparticular purpose |
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UCC Section 2-318 - 3rd part beneficiaries of warranties express or implied |
Sellers warranty extends to any natural person who is in the family or household of his buyer or who is a guest at his home; or FL RULE - who is an agent, servant, or employee of the buyer |
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UCC - 2 part Test |
Has been adopted in FL: 1. There must be an affirmation of fact (i.e. this car was only driven on Sunday by a woman to and from church); it cannot be puffing (i.e. this car is a sweetheart) 2. It must relate to the goods – it must be a basis of the bargain |
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Defective Condition Section 402A |
Product - movable personal property; it didn't work the way the consumer expected it to work 1. Must show that the manufacturer or anyone within the chain (including the distributor) made the product. 2. Product is in defective condition and does not meet the consumer’s expectation. 3. Thedefect makes the product unreasonably dangerous (i.e. we assume forpurposes of SL that the manufacturer is unaware of the defect in the product;if they are aware of the defect, then they wouldn’t have made it) 4. Reached consumer w/o alteration; in the same condition as when it left the seller 5. Harm caused by defect [by what makes the product defective] 6. Physical Harm - to the person or the property [as long as there is physical harm you can recover economic harm] |
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Misuse of Product |
Defense for manufacturer: Contributory Negligence Comparative Negligence Assumption of Risk If you are negligent & misuse the product - it will count against you If you failed to discover a defect in the product it will not count against you |
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Liability |
Extends to those in the zone of danger of the product not solely those who bought the product |
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Design Defect |
Unit has something wrong - more than one Ex. using sony batteries in all dell laptops |
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Warning defect |
inadequate instructions/warnings when the foreseeable risk/harm could’vebeen avoided by adequate instructions (i.e. aspirinis good to protect against stroke,but can thin blood; we should still produce it, but have a warning on thebottle) In FL: Failure to warn - Known to a few - SL - liable Generally recognized - Negligence Obvious - No liability |
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Manufacturing Defect |
Negligence in manufacturing is when a single product has something wrong with it Ex. - When one chair has something wrong with it that none of the others have, most easily discovered if it doesn't meet the specifications |
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Zone of Danger |
Posed by the defective nature of the product |
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Vicarious Liability |
Employment Relationship |
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Agency |
2 people - both consent to one acting on behalf of another & subject to the others control Where the principle has the right to control thephysical activity of the agent is known as a master-servant relationship |
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Punitive Damages |
Master must have the agent working where the physical harm is foreseeable |
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Scope of Buisness |
For a master to be liable - the employee's act has to be within the scope of the business of the master: - Within time & space limits authorized by the master - Has to benefit the master - Same type of work the employee has been hired to do |
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Course of employment |
For Workers comp Worker's comp is broader b/c we want injured workers to get back to work |
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Independant Contractor |
Not liable for independent contractor's torts |
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Parental immunity |
Your child can sue you, but child can only recover from insurance, not personal assets; if no available insurance, child cannot recover |
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Inter spousal Immunity |
An injured wife can sue her husband |
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Statute of limitations |
4 years - negligence & intentional torts 2 years - malpractice |
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False Imprisonment |
- An act or omission to act on the part of the defendant that confines or restrains the plaintiff to a bounded area - Intent on the part of the defendant to confine or restrain the plaintiff to a bounded area - Causation |
