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69 Cards in this Set
- Front
- Back
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DUTY
(15) |
Duty to use the standard of care of a reasonable person with ordinary prudence, in circumstances toward reasonable foreseeable plaintiffs.
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BREACH OF DUTY
(13) |
Act or omission that fails to conform to the applicable standard of care.
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CAUSATION
(15) |
Reasonably close causal connection between the conduct or the act and the injury or consequences.
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ACTUAL CAUSE
(3) |
But For Test
(But for, the negligence/defendant's negligence the injury would not have occured.) |
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PROXIMATE CAUSE: Polemis
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Polemis: used to determine whether the type of injury/result in HINDSIGHT was normal or abnormal. Looking back, if the injury was highly extraordinary, the defendant is not liable
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PROXIMATE CAUSE: Wagon Mound
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Wagon Mound Test - used to determine whether the injury was foreseeable. If the consequence was reasonably foreseeable, proximate cause.
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PROXIMATE CAUSE:
Intervening Forces |
Intervening Forces: Dependant
Independant |
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SOC: PG v. BU
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SOC: PG v. BU - if probability and gravity outweighs burden and utility, you will have care.
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STANDARD OF CARE: 6 branches
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1. PG v. BU
2. Deemed to know 3. Custom 4. Physical laws, physical facts and laws of the community. 5. Community Knowledge 6. Negligence Per Se |
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DUTY: 8 branches
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DUTY
- Reasonable care to foreseeable plaintiff (Palsgraf) - Exeception: land occupiers - Exception: negligent infliction of emotional distress - Bystander: generally not liable - Special Relationship: (1) D has duty to care for P (2) D has duty to warn P (3) D has a duty to control other D |
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BREACH OF DUTY
3 branches |
- Unexcused violation of statute (only if have NPS above)
- Non conformity to PG v. BU (1 sentence, analysis belongs under SOC) - Res Ipsa Loquitur (fact gap) |
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DAMAGES
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There was physical, emotion or property damage, therefore the plaintiff can recover.
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COMMON CARRIERS
(I.E. HOTELS AND PUBLIC UTILITIES.) SOC |
Have accepted special duty of care and owe you a greater duty of care in the circumstances. Must be more careful, use greater care.
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CHILD -SOC
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Child SOC - children of
like age, intelligence, and experience, unless engaged in an adult activity, child would then be held to SOC of a reasonable person or ordinary prudence. (define child activity vs. adult activity) |
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Intellectual PROFESSIONALS SOC
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Held to a higher SOC as "the knowledge, training, and skill (or ability and competence) of an ordinary member of the profession in good standing.
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EMERGENCY, EXCEPTIONS SOC
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Emergency, exceptions Unforeseen, sudden, unexpected. Must not have created the emergency.
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Physical Disability SOC
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Should take precautions, be they more or less, which the ordinary reasonable man would take it he were disabled.
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Attorney SOC
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You have to possess knowledge and skill of an ordinary member of the profession.
PLUS 1). USE DUE CARE OF MECHANICAL DUTIES. 2.) MUST KNOW THAT YOU WON THE UNDERLYING CASE WITHOUT THE ATTORNEY'S MALPRACTICE. |
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NEGLIGENCE PER SE
(SOC) Statute |
1.) Plaintiff is in class of persons meant to be protected by the statute
2.) Hazard or harm that occurred, the statue was designed to be protected against. 3.) Causal Connection btwn. breach and injury. 4.) is it appropriate under the circumstances (to use statute) 5.) If there is no excuse, statue applies. If there IS an excuse, do PG BU analysis. Both analysis under breach. |
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NEGLIGENCE PER SE
BREACH |
CA - Violation is presumed to be negligent absent an excuse (rebuttable presumption)
Minority - breach as evidence of negligence. |
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RES IPSA LOQUITUR:
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More likely than not the injury would not have occured without negligence (duty/breach components), and more likely than not the injury would not have occured w/o defendant's negligence (duty/breach components).
Filling up a fact gap with a legal theory based on common sense, experience, expert testimony, and plaintiff's testimony. |
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CONSTRUCTIVE NOTICE
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Part of RIL -
Deemed to know or should have known under constructive notice but they had not actually discovered it and remedied it then defendant is liable for the injuries it caused. (Banana peel, spilled milk) |
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MARKET SHARE
(Actual Cause) |
A single cause but more than one possible defendant, and not sure who responsible, liability may be based on economic benefit derived from the conduct by being responsible for a % of the market share. Burden shifts from plaintiff to defendant to prove their non-negligence.
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THIN SKULL PLAINTIFF
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You take the plaintiff as you find him, Defendant is liable even if unforeseeable pre-existing condition
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INTERVENING FORCES: SUPERSEDING CAUSE
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Usually an unforeseeable independent force OR an abnormal dependent force which is intervening and superseding and therefore, cuts off liability.
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Superseding Cause? Man climbs power pole to threaten to electrocute himself and power company shuts off power and portions of city went dark. Later, two teenages didn't stop at a stoplight b/c lights were out. Drove through intersection
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In this case, the Intervening force is the lights were out but b/c the teenagers were non compliant w/ dark stoplight it is not foreseeable and would not be superseding cause.
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SUMMERS RULE (Acual Cause)
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A single cause but more than one possible defendant, but only one can be responsible, but you are not sure which one, all are held liable unless the D's can prove one is responsible.
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MENTALLY DISABLED
"NEW" INSANE |
Person shouldn't be held to the objective reasonable person standard but only to the exercise of such case as he was capable of exercising.
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INTENT
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1) Knowledge of substantial certainty to cause harmful or offensive contact,
2) If insane, actor must be capable to entertain the idea to cause such harmful or offensive contact with intent |
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TRANSFERRED INTENT
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1) Transferred between torts
2.) Transferred between victims -What is transferred? - Set in Motion (5 torts) - Tort intended, tort achieved. - applies in defense unless you were negligent |
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PUBLIC NECESSITY
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Person may injure the property of another where it is reasonably necessary to avoid a substanially greater harm to the public. No liability for damages, as long as you and your mistakes were reasonable.
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Utility is?
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Utility can be both the condition and the activity and it is flexible. In the railroad example, there was tremendous utility to society in general to allow train travel to continue. In Dartmouth, the utility to him was having hot water and a little saved time in not checking the boiler… but not much utility to society. In Peggy, a little saved time for Warren but none for society particularly.
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Doctorine of artifical conditions highly dangerous to trespassing children
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D will owe P a duty and SOC
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Rescuer Doctorine
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When one committs an act that poses a risk of injury to a foreseeable P, one is also deemed to owe a duty to that individual's resuer as long as the rescue attempt was not reckless.
Rescuer owes a duty of foreseeable care to his rescuee. |
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Doctrine of artifical conditions, highly dangerous to tresspassing children (accepted in most or jurisdictions)
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1. D knew or had reason to know that kids were likely to trespass.
2. D knew or had reason to know that there was an artifical cond. on his land that was HIGHLY dangerous to kids. 3. Kids, due to their age don't recognize or appreciate the danger. 4. Risk to kids greatly outweighs the burden on D to eliminate the risk. |
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Thin Skull Plaintiff Rule
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If an actor undertakes conduct that poses a risk of injury to an individual, the actor bears the risk that the individual is more susceptible to injury than the average person.
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Trespass to Chattel
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Act intent cause interference with person's use or possession of chattel. Interference
1. Dispossession: temporary taking or refusing to return to owner Damages: loss of use, very low amount of D's. Dimunition 2. Intermeddling: only physical contact, thing impaired. Must have damage |
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Recovery of Property (kitty cat)
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Person has to be tortuously dispossessed and after you demand to have it return, may use reasonable force to promptly recover from the wrongdoer or third party and you can enter their land or that of an innocent third party.
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Defense of Personal Property
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Can use reasonable force to prevent tort against personal property, after demanding to leave.
CANNOT use deadly force to protect property, UNLESS threatened with same force. |
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Self Defense Rule; Majority and Minority Rules
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Under threat of imminent harmful or offensive contact (confinement) or under reasonable apprehension of such contact (confinement) with no duty to retreat, may use reasonable force to prevent threatened bodily harm.
Reasonable force= only use deadly force when death or serious bodily harm is threatened. Majority = don't have to retreat Minority = yes, have to retreat. UNLESS in home or office. If face w/ deadly force, use deadly force. UNLESS to protect land, no deadly force allowed. |
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INFORMED CONSENT
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Cause of action based on lack of informed consent, plaintiff has to show:
1) duty to inform, 2) causation, 3) injury |
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What is the difference between public and private necessity?
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a) Private: person may injure property of another where it is reasonably necessary to avoid a substantial greater harm to him/herself of their property - technically not a tort, but still liable for damages.
b) Public: person may injure property of another where it is reasonably necessary to avoid a reasonable necessary harm to public property - no liability and no damages. - mistake is ok, as long as it was reasonable |
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What are the 5 elements of negligence?
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1) Duty
2) Standard of Care 3) Breach 4) Actual and Proximate Cause 5) Damages |
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Under Duty, what is the Cardoza and Andrews rule for foreseeable plaintiffs?
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Cardoza: foreseeable plaintiffs have to be w/i the "zone of danger"
Andrews: everyone is a foreseeable plaintiff |
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What is the standard of care for professionals?
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Professionals: knowledge, training, and experience of standard of care of ordinary members of the profession - in good standing.
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What is the standard of care for attorneys?
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Attorneys: knowledge, training, and experience of standard of care of the profession - in good standing.
Malpracticed if failed to: 1) exercise best judgement of an ordinary member of the profession = discretionary 2) use due care: e.g., mechanical duties like filing w/i time. Burden: on the plaintiff to show malpractice by having to prove/show that underlying case would've won w/o attorney's malpractice |
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what is the standard of care of a physician/doctor?
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Physicians/doctors: knowledge, training, and experience of standard of care of ordinary members of the profession in good standing in same or similar communities and in same or similar circumstances.
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What is the physician/doctor's defense?
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Physicians/doctors do not have to disclose:
1) things that patient out to know or 2) known by everyone, 3) if patient not in the proper condition to know yet, 4) in an emergency |
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What is the majority and minority rule on physician/doctor's duty to inform material facts?
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Majority: objective patient = what a mythical patient would have done
Minority: what the actual patient would have done |
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What is the duty of an Owner or Occupier of Land?
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Defendant's duty to act with owner's/occupier of land's standard of care, in the circumstances to protect foreseeable plaintiffs.
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What is an Owner or Occupier of Land's duty to reasonable care?
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1) Duty to warn
2) Duty to make safe (correct or fix) 3) Duty to inspect (even for unknown dangers) |
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What duty is owed to a plaintiff injured outside the property, under a natural condition?
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There is no duty, except for trees.
Majority: depends where tree is. Minority: there need to be duty of reasonable care of tree. |
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What duty is owed to an unknown trespasser?
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Natural Condition: No duty
Artificial Condition: No duty Activity: No duty |
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What duty is owned to known trespassers?
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Natural Condition: no duty
Artificial Condition: Duty to warn or make safe from known dangers. Activity: Reasonable care |
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What duty is owed to licensee/social guest?
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Natural Condition: duty to warn or make safe from known danger
Artificial Condition: duty to warn or make safe from known dangers Activity: Reasonable Care |
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What duty is owed to an business invitee?
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Natural Condition: Reasonable Care
Artificial Condition: Reasonable Care Activity: Reasonable Care |
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What minority rule, only in CA says that all land occupiers and owners owe a duty to all plaintiffs?
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Rowland
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What does AHDTC stand for?
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Artificial condition, Highly Dangerous, Trespassing Children
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What is the definition and the 5 factors of the AHDTC doctrine?
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Possessors are liable for physical harm to trespassing children thereon, caused by an artificial condition IF:
1) possessor should know or had reason to know that children would likely trespass 2) possessor should know or had reason to know or realize that the artificial condition involves serious body harm or an unreasonable risk of death, 3) bx of the child's youth, does not discover or realize the risks involved in intermeddling with or coming w/i the area made dangerous by possessor, 4) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight, compared to the risk involved to the children, 5) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children |
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What are the 6 exceptions of limited liability of Lessors and Lessees?
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(1) Undisclosed known dangerous conditions to lessor:
a. lessor does not disclose: known or should have known of the conditions = lessor is liable. UNTIL the lessee discovers it. b. lessor actively conceals the condition = lessor is liable. UNTIL lessee actually discovers it AND has a reasonable opportunity to repair it. (2) Conditions dangerous to persons outside the premises (3) Premises leased for admissions of the public Public = not a park, more like a store ****Above 3 applies in conditions at time of transfer**** (4) Parts of the land retained in lessor's control, which lessee is entitled to use (i.e., hallways, common areas). (5) When lessor contracts to repair or statute requires the repair (6) Negligent in lessor in making the repairs a. A lessor should know or known that it was negligent repaired or not repaired. ****Last 3 applies in conditions of transfer AND there after*** |
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Under Negligent Infliction of Emotional Distress, what are the Majority rules for Direct Victim and Bystander?
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Majority Rule:
Direct Victim: physical manifestation of emotional distress Bystander: -physical manifestation of emotional distress -zone of physical danger -close relation (immediate family) |
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Under Negligent Infliction of Emotional Distress, what are the Minority rules for Direct Victim and Bystander?
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Minority:
Direct Victim: -Emotional Distress Bystander: -contemporaneous perception (see/hear/smell/taste): close in time, doesn't have to be exact -located near -immediate family |
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Under Negligent Infliction of Emotional Distress, what are the Minority of Minority rules for Direct Victim and Bystander?
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Minority of Minority:
Direct Victim: -Emotional Distress Bystander: -located near -at the event while it occurs -immediate family |
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What is Assault and its elements?
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Assault: an act intending to cause a harmful or offensive contact to person or 3rd party and causes such imminent apprehension directly or indirectly.
Elements: Act = overt movement/not words alone UNLESS reasonable person. Words + acts. Conditional threats are not enough. Unlawful condition or danger from independent source (i.e., snake warning). Imminent= mere preparation and discovery afterwards does not count. Distance matters. Have to believe the person is capable of causing apprehension. |
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What is Battery and its elements?
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Battery: an act intending to cause harmful or offensive contact with a person or 3rd party, or an imminent apprehension of such contact and harmful or offensive contact with person directly or indirectly results to person or 3rd party.
Act= volitional intending= substantial offensive = to ordinary person who is not unduly sensitive contact= connected to person or body |
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What is False Imprisonment and its elements?
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Act intending to cause confinement of person or 3rd party within boundaries, directly or indirectly and causes confinement or person or 3rd party and they are conscious or harmed by the confinement.
Boundaries = no other way out Confinement IF: -force or threat of force -consent, but removed/withdrawn consent -no knowledge to escape w/o losing life or limb Not confinement if: -moral persuasion -fear of losing job -future threat |
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What is Intentional Infliction of Emotional Distress (IIED) and its elements?
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An act intending to inflict or reckless disregard of the probability of infliction through extreme and outrageous conduct, severe, emotional distress to person/bystander.
severe = go beyond what reasonable person is expected to endure. No physical harm. outrageous = vulnerability, decency/intolerable bystander = must know bystander is present and bystander must have witnessed act |
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What is Trespass and its elements?
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Trespass = an act intending to enter/physically invade possessor's land and does enter.
Elements: enter = w/o permission, overstay welcome/remain after consent/permission is withdrawn Land = air & underground, to extent use, substantial interfere with use of land |
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What is Conversion and its elements?
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Act intending to cause substantial interference with person's use or possession of chattel and it does cause.
Elements: intending = bonified purchaser Defense= bonified purchaser is someone who pays value for the chattel without knowing that there is not an opposing claim, but if chattel was originally obtained out of fraud or theft, then the defense is void. substantial interference = not getting it back |
