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68 Cards in this Set

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Duty of Care Owed to Owner and Occupiers of Land:

Rule for Outside the Premises: Natural Conditions

No duty is owed to individual off the premises (even if risk IS foreseeable) as to a condition on the land untouched by man; it is in its natural conditions; it has not been changed or altered or modified in anyway.
Duty of Care Owed to Owner and Occupiers of Land:

EXCEPTION to Rule for Outside the Premises: Natural Conditions

Trees: Majority - In a rural area, the common law rule of no duty applies. In a urban are, the land owner must exercise ordinary care (RPPLSC).
Minority View - Landowner must exercise ordinary care IN ALL circumstances (NEW TREND w/growing popularity - Taylor v. Olsen)
For the Majority Exception to Rule for Natural Conditions Existing Outside the Premises:

How do you distinguish urban from rural?

Look at statutory requirements, such a speed limits, which may be persuasive in the argument of distinguishing a rural area from an urban area.
Duty of Care owed to Owner and Occupiers of Land:

Question of Fact/Law: Landowner's duty to take reasonable measures to protect those outside his property from dangerous conditions

Most of the time it is a question of fact for the jury.
Duty of Care Owed to Owner and Occupiers of Land:

Rule for Outside the Premises: Altered/Changed Conditions

Once man changes a natural condition, then they are responsible for foreseeable consequences
Duty of Care Owed to Owner and Occupiers of Land:

Description of Scenario in Which Duty is Owed

Plf' is on the defs' premises when he is injured by an activity or a condition on the land. The duty owed is dependent upon the plfs' CLASSIFICATION as a trespasser, licensee (social guest) or invitee (business guest).
Duty of Care Owed to Owner and Occupiers of Land:

Trespassers: definition, general rule

Def(no PIC)- Lease favored category. An indiv on the property of another W/OUT PRIVILEGE (postman), W/OUT CONSENT, and W/OUT INVITATION
General Rule- Def's owe trespassers no duty of care b/c their presence is not foreseeable and they are the wrong-doers
Duty of Care Owed to Owner and Occupiers of Land:

Trespassers: majority exception, TX
Majority - No duty owed to trespassers UNTIL you discover their presence once their presence is known, you must do that which a reasonable person would do or not do to not injure them (exercise ordinary care)

TX- There is no duty to trespassers until you discover their presence; once their presence is known, you must not injure them intentionally or through gross neglig (negative duty not to injure - higher BOP on trespasser) EXCEPTION to TX- b/c of the conflicting cattle and RR industries - modified rule so that RR's owed a duty to persons AS WELL AS livestock to keep reasonable lookout
Duty of Care Owed to Owner and Occupiers of Land:

Licensees (Social Guests): definition, rule as how licensee's should view premises

Def- a licensee is an indiv on the premises of another whose presence is "tolerated". Generally, concerned w/social guest.
Confusion: b/c social guests are often invited, but crts say that even though invite their presence is tolerated (& b/c social guests don't come on land to make business trx).
General Rule - Licensee is to take the premises in the same condition as the possessor, or memeber of the possessor's family, taken them and should not expect that the premises will be repaired or prepared for him.
Duty of Care Owed to Owner and Occupiers of Land:

Licensees (Social Guests): Prosser's view as to social guests

Prosser says they're not invitees and only licensees (no matter how cordially invited or urged to come) and (1) performance of incidental services by licensee does NOT improve his legal position (2) reasoning is that the guest should understand that he is placed on the same footing as one of the family when he visits (3) licensee entitled at most to a warning of dangers, that are known to possessor
Duty of Care Owed to Owner and Occupiers of Land:

Licensees (Social Guests): General Rule as to Duty Owed, TX
General- Similar to trespassers, no duty is owed generally. Once we are aware of presence, we must warn him of any risks or dangers of which the occupier is aware or should be aware (constructive notice).
TX - Only must warn licensee of which you have actual knowledge (positive duty to warn of known/foreseeable risks) - higher BOP on plf' to prove that a def' definetly knew of the risk as opposed to that he simply should have known as in other juris.
Duty of Care Owed to Owner and Occupiers of Land:

Licensees (Social Guests):
Other individuals considered licensees

Garbage collectors, firemen, policemen, mailmen, meter readers
Presence said to be tolerated, although status may vary by juris.
Duty of Care Owed to Owner and Occupiers of Land:

Invitees (Business Guests): trad'l def, modern def'

Traditional def - invitee was one who comes onto the premises for the financial benefit or gain of the occupier.
Modern def - one who goes onto the premises of another for the purpose for which the premises is maintained.

If the invitee goes outside the scope (time, area, purpose) of his invitation, he becomes either a trespasser or a licensee, depending on whether or not he goes w/the consent of the possessor.
Duty of Care Owed to Owner and Occupiers of Land:

Invitees (Business Guests): Duty of Care Owed

General Rule: the occupier of land must exercise ORDINARY care to make the premises reasonably safe and to warn the individual of any risks of which the occupier knows or should know.
Duty of Care Owed to Owner and Occupiers of Land:

Invitees (Business Guests): Exception Duty of Care Owed
If condition on property is OPEN AND OBVIOUS there is no duty.

EXCEPTION - even if condition is open and obvious, if the occupier can foresee risk, then they must exercise ordinary care in making the premises reasonably safe (classic example is snow and ice - must undertake reasonable care to make the premises safe under the circumstances)
Duty of Care Owed to Owner and Occupiers of Land:

Invitees (Business Guests):
What does open and obvious mean?

The condition is one which the indiv does in fact know and does in fact appreciate
Duty of Care Owed to Owner and Occupiers of Land:

Persons Outside the Estab Categories: Children
Law seeks to protect children b/c they are young & inexperienced.
Attractive Nuisance Doctrine- Small children trespass on another's land are injured b/c they were "attracted" to the property. Landholder must use ordinary care to protect children from temptations on their property that could reasonably lead them to danger.
Rest. of Torts § 339 - Abandoned the Attractive Nuisance Doctrine - Possessor of land liable if (1) place in question is one which he knows or should know might be attractive (2)cond is one of which he knows or should know will pose a risk of death or harm (3)children do not discover the cond or are unaware of the risk posed (4) utility of maintaining the cond and the burden of preventing harm are slight when compared w/risk (5) possessor fails to exercise reasonab care in elim danger
Duty of Care Owed to Owner and Occupiers of Land:

Persons Privileged to Enter Irrespective of Land Owners Consent

Public employees do not fit very well into any of the categories that the law has estab for the classification of visitors. They are not trespassers b/c they are priv to enter. Jurisdictions vary in treatment.
Duty of Care Owed to Owner and Occupiers of Land:

Rejection or Merging of Categories

1.Some jurisdiction reject the licensee/invitee/trespasser categorization and require landowner to exercise ordinary care whenever the indiv is on the property (problem-have to determine questions on a case-by-case basis)
2."Ordinary Care" depends on the foreseeability of risk, which raises all the same questions
Duty to Lessee by Lessor

General Rule for Duty Owed, Exceptions to Rule (TX follows)

General Rule - Once landlord has conveyed possession and control, the landlord is not responsible for injuries on the property.
Exceptions: (1) LL who conceals or fails to disclose any dangerous condition whether natural or artificial (2) LL transfers property in cond that RPP would know is risky (3) Premises leased for admission to the public (4) where LL retains control of common areas (5) where teh lessor contracts to repair (6)where the lessor repairs in neglig manner
Duty to Lessee by Lessor

Minority Rule for Duty Owed, Duty for Protecting Against Criminal Attack by 3rd Person

Landlord must exercise ordinary care toward his tenant and other on the premises w/permission. (WI - doesn't follow classification theory)
Criminal Acts by 3rd Party - Where LL is in control over and possesses that portion of the property where the criminal activity is foreseeable, he will have the duty to do what is reasonable to protect tenants. (foreseeable robberies in the laundry room b/c it's dark - ll must install lights, etc)
Exceptions to No Duty Common Law Rule

School district/pupils
Common carrier/passengers
Defenses: Plfs' Conduct

What is always the first line of defense?

The def's first line of defense is to prevent plf' from establishing one of the 4 elements of actionable negligence: intent/duty (depending on COA), breach, causation, damages - once that fails, def' must allege and prove affirmative defenses
Defenses: Plfs' Conduct

Contributory Negligence: general rule, Doctrine of Last Clear Chance (abolished in TX)

General Rule - Even before actionable neglig was a viable COA (1825-industrial revolution), the idea was firm that if the plf' had contributed to his own injury, he should not be permitted to recover damages AT ALL.
Doctrine of Last Clear Chance - where the plfs' neglig has put him in a dangerous position, and def' discovers plfs' danger and fails to use due care to avoid injuring plf', plfs' neglig will not bar his recovery
Defenses: Plfs' Conduct

Comparative Negligence: rule, types

Rule - Compare the negligence of the def' w/the contribut neglig of the plf' and diminish the amount of P's recovery accordingly (note - contributory neglig is still alive; diff is it is no longer a complete bar)
1. Pure Comparative Fault - a plfs' damages are reduced in proportion to the % of the neglig attributed to him.
2. Modified Form - P can recover as in pure juris, but ONLY IF P's neglig either: (a) does not exceed def' neglig (50%) TEXAS or (b) is less than 49% of the defs' neglig
Defenses: Plfs' Conduct: Assumption of the Risk

Express Assumption of the Risk

This is a contractual issue whereby parties agree to absolve indivs form liability via exculpatory clause. Comparative negligence statutes DO NO affect expressed assumption of the risk b/c parties can contract as they see fit.
The clause will have effect unless (1)gross negligence by the def' (2)bargaining power is so grossly unequal (3) when the trx inovles the public interest
Defenses: Plfs' Conduct: Assumption of the Risk

Implied Assumption of the Risk: trad'l rule, modern rule, elements

Trad'l Rule: Volenti Non Fit Injuria - he who submits to the injury cannot complain, he who submits to the risk cannot therefore be heard, total bar to recover
Modern Rule (TX 1975) - Anytime plf's conduct is an issue, it is all considred to be contributory neglig
1. plf' was aware of risk (NOT whether he should have know)
2. plf' did in fact appreciate the risk; AND
3. thereafter plf voluntarily exposed himself to teh risk in question - assumes reasonable choice
Defenses: Plfs' Conduct: Assumption of the Risk

Implied Assumption of the Risk: "Great Seatbelt Defense"

If you had been wearing your seatbelt, your injuries would have been less sever" - is it contributory neglig not to wear your seatbelt? Jurisdictions vary: 1. some say yes, 2. some say it is evid of negl per se (b/c seatbelt did not cause the injury) 3. mitigating factor in damages (TX - no duty to mitigate before only AFTEr the injury)
Defenses: Statutes of Limitations and Repose


SOL - Most perfect defense; arise b/c the legis has decreed that there is a set block of time which you must bring COA or you are barred forever - generally when the actual injury has occurred (exception is discovery rule for med mal (TX))
WHY SOL? want to keep dockets current, want to encourage people to bring suits while witnesses are still available.
REPOSE - Limits potential liability by limiting the time during which a COA can arise, stem from equitable concept that at some pt people should no longer be resp for past actions (architects and engineers)
Defenses: Statutes of Limitations and Repose

TX Tort Reform

Rules that the SOL shall begin to run:
1. from the occurrence of the tort; or
2. from the last date of the relevant course of treatment, or
3. the last date of relevant hospitalization
NO MORE DISCOVERY RULE in med mal - SOL set at 2 years
Defenses: Immunities

Definition, difference from privilege

Def' admits the civil tort but def' alleges that he is immune.

Privilege - avoids liability in a particular circumstance b/c it is reasonable to do so
Immunity - avoids liability in ALL circumstances for certain people, based on the relationship between the parties
Defenses: Immunities

Family Relationships: Doctrine of Spousal Immunity, Modern Rule

Doctrine of Spousal Immunity- one spouse, in inflicting a tort on the other, is totally and completely immune from liability WHY? (1)preserve peace and tranquility in the home (2) protected by criminal law and divorce court (3) flood of litigation (4)collusion agst 3rd parties (insurance cos) (5) legal fiction that man & wife are 1 (abolished in most juris)
Modern Rule - doctrine abolished in most juris (TX to)
Defenses: Immunities

Family Relationships: Doctrine of Parental Immunity

Parent, no matter how neglig, no matter how much at fault on inflicting injury on their spouse, the spouse inflicting the injury is immune from liability.
Three Justifications: (1) special relationship bet the indivs is very impt (2) to prevent fraud and collusion (3) intrafamilial litigation depletes family resources

LIMITED APPLICATION (TX) - when parent abandons all parental authority/responsibility (still retained in respect to negligent activities, but say son comes to work for you and you treat him as employee and he is injured, he can sue; or sex abuse)
Defenses: Immunities

Doctrine of Charitable Immunity

Doctrine shield charitable organizations from liability b/c (1) Trust fund theory - all $s were in a fund for exclusive purpose of funding the purpose (ult. the public) (2) implied waiver theory - whenever an indiv dealt w/a charity there was an implied waiver (best to let the person go uncompensated)

TX and most jurisdictions dont recognize Doctrine b/c charities are a big business that have insurance companies.
Defenses: Immunities

Employer Immunity

Employers are immune only b/c of legis allowing for Workman's compensation insurance, insurance company abrogates claim -- if employer elects not get get workmen's compensation, this defense does not apply
Defenses: Immunities

State and Local Gov'tal Immunity: Federal History

I. 1776 adopted total gov'tal immunity from English "Case of Kint's Perogative in Salt Peter"
II. 1863 - Created Court of Claims & anyone can bring their contractual claims agst the gov't
III. 1946 - Enacted Federal Tort Claims - gave permission to sue

Basically, you can sue the gov't only as far as they consent to be sued - II & III provide consent.
Defenses: Immunities

State and Local Gov'tal Immunity: TX Immunity

TX gave its permission (and withdrew immunity) in Texas Tort Claims Act.

Have to determine if teh the municipality is engaged in gov'tal function or a proprietary. If proprietary, the gov't is liable. If it is a gov'tal function, it is immune.
Defenses: Immunities

State and Local Gov'tal Immunity: Public Officer Immunity

Generally, individuals performing in their official capacity are immune from liability for any injury that results from an act or omission occurring w/in the scope of his duties (discretionary function exception)
Strict Liability

Definition, Distinguish from Strict Products Liability

Liability imposed for which there is no fault, no intent, no negligence, but impose liability b.c the def has undertaken a certain activity and injury to plf has resulted.
Strict Products Liability involves placing a hazardous/defective product into the stream of commerce and causing injury.
Strict liability involves undertaking an activity in which individual causes injury to another.
Strict Liability

Animals: Trespassing Animals

1. Adopted in England in 1353
2. Aplied to animals of a definite barnyard characteristic: cattle, horses, sheep (animals could inflict great harm if they trespassed onto anther's property)
3. Rejected at first in US b/c there was so much open space
Two Types of Statutes:
Majority -"Fence in" - animal owners are strictly liable for damage that results from their failure to properly restrain their animals
Minority (TX) - "Fence Out", if the plf fenced his land properly, there is strict liability imposed on the def if the animals break through the fence, if you don't want livestock on your property, you must fence them out
Strict Liability

Animals: Domestic Animals w/Viscous Tendencies

If domesticated animals w/viscous tendencies are kept, their possessor/owner will be held strictly liable for any injuries the animals inflict (even if animal has bitten anyone yet)
TEST for "viscous" is whether the animal has a "dangerous" propensity abnormal to its class (owner knows or has reason to know if viscous propensity) -- if plf is unable to prove the owner knew or should have known, strict liability will NOT apply (many juris have adopted "dog bite" regs that eliminate the burden to prove that dog owner was aware of viscous tendencies)
Strict Liability

Animals: Wild Animals

Concerned w/the keeping of NON-domesticated animals (ferae naturae) whose natural habitat is the wild. Those who undertake to keep exotic animals face STRICT LIABILITY if any injury results therefrom.
Strict Liability

Abnormally Dangerous/ Ultrahazardous Activities: Definition

Whenever def' undertakes an ultrahazardous activity from which an injury results, strict liability will be imposed. In the absence of fault, def can still be held liable if he brings onto his property anything likely to do harm if it escapes. (Question of law)
Strict Liability

Abnormally Dangerous/ Ultrahazardous Activities: What is an ultrahazardous activity?
Restatement § 520:
1. existence of a high degree of harm/risk to the land, chattels, or person of another
2. likelihood of the resulting harm is great;
3. inability to eliminate the risk even through the exercise of reasonable care
4. extent to which the activity is not a matter of common usage;
5. inappropriateness of the activity in the place where it is carried out-MOST IMP FACTOR
6. extent to which the value of the activity to the community is outweighed by its dangerous attributes
Strict Liability

Abnormally Dangerous/ Ultrahazardous Activities: Majority/Minority Rule for Land

Majority- A person using his land for a dangerous and non-natural use is strictly liable for any damage caused to another's property as a result of such use (Rylands)
Minority (TX specifically rejects Rylands) - To recover in TX, the plf must establish negligence on the part of teh def'
Strict Liability


1. Only imposed for those injuries which result as the NATURAL CONSEQUENCES of the ultrahazardous act (you have to limit the defs' liability) - injury that results must be w/in the anticpated risk or injury (TX blasting case is SL for debris, but from concussion, actionable negl)
2. No strict liability where the damage results from an Act of God that the def' could not foresee (freezing weather ruins shipment of fruit on train, foreseeable act of god)
3. Can't use contributory negl as a defense - can assist w/damages

General Definition

Nuisance IS NOT A TORT, it is an entire field of liability.

Private Nuisance

An unreasonable interference w/the use and enjoyment of an individual's private property (noise, odors, light, etc which unreasonably interfere)

Public Nuisance

May arise from one 3 different types of activities:
1. minor criminal offense where there is a fine but no imprisonment
2. activity interferes with or encroaches upon the public health, safety, morals, convenience, peace, comfort; OR
3. an activity of continuing nature that affects a public right - has NO relationship to private nuisance

Nuisance Per Se

Where reasonable minds will not differ. Nuisance at law; the activity is considered a nuisance b/c some statute.

Nuisance Per Accidens
Where reasonable minds may differ. Nusiance b/c of fact; the activity may be a nuisance depending on circumstances and factors.

Permanent vs. Temporary Nuisance

Permanent Nuisance - if the cost of abatement is prohibitive
Temporary Nuisance - if the cost of abatement is low

NOT THE RULE IN TX - Nuisance is one that involves activity of such character that it is presumed it would continue indefinitely. Temporary nuisances are considered to be of limited duration.

Equitable Remedies

First time we have been able to seek equitable remedies (if damages at law are insufficient)

Individual Suing Under Public Nuisance

Where plf' has suffered no particular damage in the exercise of a right common to the general public, it may not sue for public nuisance. HOWEVER, an individual can bring suit for public nuisance ONLY when their injury is different in kind, NOT merely in degree, from that sustained by the general public.

Individual 'Comes to the Nuisance'

Where the plf' had teh opportunity to inspect the property prior to its purchase, it does not have standing to sue for private nuisance.

Degree of Care to Avoid Injury

A person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised by him to avoid such injury. `

Idaho Rule for Establishing Nuisance

IDAHO RULE ONLY - utility of the activity outweighs the harm caused there is no legal nuisance

Can Normal & Necessary Acts to a Lawful Business be enjoined?

Acts which are the normal or necessary incidents of a lawful business may not ordinarily be enjoined as a nuisance, even where such results in the diminution in value of the burdened property.


1. Making a statement that is not true to a material fact
2. That induces you into the trx
3. Upon which the P reasonably relies
4. To their detriment

Options to Sue, Remedies

1. Tort: Intentional or Negligence
2. Contract
3. Quasi Contract

Equitable Remedies:
1. Rescission
2. Estoppel
4. Injunction
4. Other Equitable remedy

How do you misrepresent?

1. silence (when duty to disclose)
2. conduct
3. words
4. half-truths

** REMEMBER has to be a misrep of a material fact

Intentional Misrepresentation (deceit)

Plf must establish fraud by showing that the def made the statement knowing it wasn't true or w/careless disregard whether it was true or not. When there is no duty to disclose and seller remains silent, he has not misrepresented a material fact b/c (1) he never made a false statement (2) he never prevented plf' from inspecting. EXCEPTION - where a seller is aware of a latent defect and the buyer cannot discover by a reasonable investigation.

Negligent Misrepresentation

Must establish elements of negligence (duty, breach, prox cause, injury); def' negligently misstates where boxes are to be stored and they are destroyed and ins co won't cover (where speaker OWES duty to give correct info)


Generally are not actionable b/c they are considered loose, vague or exaggerated statement upon no reasonable person would rely. EXCEPTION (TX too) - where a party, by its representations that it has superior knowledge and renders an opinion, it is to be considered fact - it has to be REASONABLE to rely on their statements

Innocent Misrepresentations

Misstatement of material fact when the def' did not intend to deceive and there was not a corresponding duty for him to be truthful
EXCEPTION - can be made actionable if the def has the means of knowing, ought to know, or has the duty to know the truth (architect that built house 1' from the property line)

Misrepresentations to 3rd Parties

Situation arises when teh def' makes a misrepresentation to a third party, the plf' reasonably relies, to his detriment, on the defs' statements and subsequently brings suit against him.
REMEMBER - deceit is an intentional misrep - plf would have to prove that def' deliberately made false statements to 3rd party KNOWING that 3rd party would tell plf and she would rely
RULE: Basis of recovery is whether or not the def' should have known of a forseeable risk (Accountants may be liable to persons not in privity for negl prepared financial statements b/c they should know they are going to be relied upon)

Misrepresentations of Law

Generally not actionable b/c (1) everyone is presumed to know the law and so you can't misrepresent it (2) no one really knows the law, as such you can't misrepresent it, it is an opinion
EXCEPT - statement made by one w/superior knowledge


Predictions are generally non-actionable b/c no one knows the future. Buy you can make a prediction of a certain intention. Statements of intent as to future events may be actionable when it would be reasonable to rely upon that statement of future intention.