Flashcards
Torts I
Cards in this deck (71)
- 1NegligenceAn action for negligence requires proof of a duty of ordinary DUE CARE owed by the defendant to the plaintiff, a breach of that duty causes damages to the plaintiff.
- 2DutyDuty arises when the defendant's conduct creates a foreseeable risk of harm to the plaintiff.
- 3Violation of Statute/ Negligence Per SeAn unexcused violation of statue proves breach if plaintiff IS A MEMBER OF A class the statute protects and the harm that occurred is the type the statute is designed to protect.
- 4Foreseeable RiskA foreseeable risk is one that is sufficiently great to lead a reasonable person to anticipate the RISK and take some precaution against it.
- 5Foreseeable PlaintiffA foreseeable plaintiff is one that is WITHIN the zone of danger.
- 6MisfeasanceMisfeasance: Doing an act one is obliged to do wrongly.
Defendant is liable for misfeasance when:
a. Special relationship exists
b. A rescuer undertakes a rescue and leaves plaintiff worse off.
c. Defendant caused the RISK in the first place. - 7NonfeasanceNot conferring benefits on someone
- 8Landholder Duties:Landholder's Duties:
Where was the D?
Who?
How? - 9Landholder Duties toLandholder's duties to those on the premises.
- 10Landholder's Duties: TrespassersA trespasser is one who volitionally enters without consent.
- 11TrespassersOne who volitionally enters:
a. No duty owed to undiscovered trespassers.
b. Duty owed to discovered or foreseeable trespassers TO USE REASONABLE DUE CARE with activities.
C. High duty owed to child trespassers as to the activities and artificial condition on the land. - 12Landholder's Duties: LicenseeA licensee is one who enters with consent.
- 13LicenseeLicensee: One who enters with consent
a. No duty owed to INSPECT for unknown dangers.
b. Duty to use reasonable care to warn of known hidden dangers in regards to natural OR artificial conditions OR activities. - 14Licensee ExamplesNo need to warn for obvious risks, a big hole in the front yard.
Warn for "be careful there is a tree trunk on the driveway."
People from cox, avon, sears, all licensees. - 15Trespassers ExamplesNo duty for trespassers on the property, if they are not allowed to be on the property, they should not be authorized to any damages resulting from thereof.
- 16Landholder's Duties: InviteeAn invitee is one who enters with invitation by the defendant FOR the interests OR benefit of the defendant.
- 17InviteeInvitee: One who enters with invitation by the defendant for the benefit or the interests of the defendant.
a. Duty to use reasonable care to inspect AND CORRECT, if necessary, dangerous conditions, natural, artificial, & activities.
Tests: Economic Benefit & Public Premises - 18Invitee Economic Benefit TestTests:
Economic Benefit: One who posses a potential economic benefit for landowner.
- Going in to use a restroom (potential shopper) - 19Invitee Public Premises TestPublic Premises: One who is on property held open to the public for public purpose.
-Police owe a duty to the public, not individuals. - 20Invitee ExamplesDuty to use reasonable care to inspect and correct. If necessary, dangerous conditions, natural, artificial and activities.
a. A shopper having permission to enter the backroom is a licensee.
b. A shopper going into the back room without permission is a trespasser
c. A shopper staying at the store while the store is closed is a trespasser
d. salesman soliciting business: not an invitee
e. Applying for a job: invitee
f. Selling religion: not an invitee
g. Friend who drives you to the airport but never flies: invitee - 21Foreseeable Plaintiff ExamplesRescuer: Danger invites rescue, a rescuer is a foreseeable plaintiff.
IIED: P who suffers emotional distress as a result of D's negligence.
a. Closely related victim.
b. Present at the scene and aware of the injury PRODUCING event when it occurs.
c. Suffers severe, but not abnormal, emotional distress - 22Foreseeable PlaintiffIn order for the defendant to owe a duty to a plaintiff, plaintiff must be in the zone of danger.
- 23Foreseeable Risk ExamplesWhether a risk is foreseeable is determined by both likelihood and severity of the risk.
- if there was a foreseeable risk, and the person suffers from the foreseeable risk, the fact the injury comes in an in-foreseeable way does not matter. Cardozo brings this up in Palsgraff
- Palsgraf: D not negligent to P, P was standing far away when the package was dropped.
- Pipes bursts form cold weather- did not foresee the cold that would occur.
- Move the cars away from flood? - no duty, flood never occurred in that area. - 24Violation of Statue ExampleViolation of a statute, set out to protect life and limb, is negligence as a matter of law.
1. is the P in a class the statute aimed to protect?
2. is this the kind of harm the statute was designed to protect?
*Whether violation of a statute is prima facia evidence of negligence?
Yes, because the defendant injured was in the class to be protected, and the harm cause was the type of harm the statute sought to protect. - 25Violation of Statue Excuses1. Emergency
2. Incapacity
3. Ignorance of operative facts
4. Defendant is UNABLE AFTER REASONABLE diligence to comply. - 26Violation of Statute Excused Examples Non-ComplianceIf the statute puts the party in more danger, is it negligence per se to violate the statute?
Plaintiff and brother were walking on the highway on the “wrong” side. Statute states that pedestrian must walk facing the cars
if following a statute would put the party in more danger is it negligence per se to violate the statute?
No, here it would have been more dangerous for the plaintiffs to walk on the left side of the road because it was busier than the right.
-Violation of a statute may be excused. If compliance puts you in greater danger than non-compliance plaintiff is entitled to non-compliance. - 27Violation of Statute Excused Example EmergencyViolation of a statute creates a presumption of negligence which may be rebuttable by showing the violator acted prudently.
If D is faced with emergency situation, if he acts reasonably in that situation, he is not liable. - 28Violation of Statute Negligence per seWhen it's established that there is a violation of a statute, the jury cannot find that the defendant was not negligent. Negligence per se is only through the violation of statute. It's a shortcut and important technique for lawyers.
- 29Violation of Statute Not part of a class that is protectedPoisoning drugs are labeled to protect those whom will be injured by it. If someone takes it to commit suicide, the statute was not made to protect those people, they are not part of the class that is meant to protect.
- 30Violation of Statute Ignorance of operative factsNot knowing that there is food in the bag that was handed to the D near the library does not violate the law.
Ignorance of operative facts. - 31Violation of Statute Ignorance of the lawIgnorance of the law is no defense.
- 32Duty of CareA duty of care is always ordinary care, not extraordinary care.
Standard of care - reasonably prudent person under the circumstances. - 33Standard of CareStandard of Care - A reasonably prudent person UNDER THE CIRCUMSTANCES
- charged with basic knowledge common to the community.
4 circumstances taken into consideration. - 34Standard of Care Emergency1. Emergency - A reasonably prudent person taking into consideration the emergency.
- If the D was acting reasonably, the P bares the risk of loss. - 35Standard of Care Custom in the CommunityCustom in the Community: Evidence of custom may be used to show no negligence, however, it is not controlling.
Example: Even though it is customary to use open ended hooks, it was still NOT due care to use it with a safer alternative available.
- Whether the "test" for *** is easy and inexpensive even if its custom to not have the test on certain ppl or certain age. - 36Standard of Care ChildThe standard of care for a child is a child of like age, intelligence, experience, and education. However, this does not apply if child engaged in adult activities.
A child may be liable to adult standard of care when the child is partaking in adult activities. - 37Standard of Care Professional NegligenceStandard of care for professional negligence: Any professional is held liable to the same standard as any professional in the same field.
To prove a professional negligence in standard of care: it has to be set by an expert witness, and the expert has to testify that the defendant departed from that standard of care unless it's so grossly negligent (leaving something inside a person after a surgery). - 38Standard of Care Professional Negligence Duty to DiscloseAny professional is held to the same standard as any average professional in the same field.
Doctors need to disclose nature of the procedure, material risks (substantial risks) and options (surgery or therapy).
Even if surgery goes well, and the side effect occurred, if the doctor did not disclose or failed to inform the material effect of the side effect (i.e hair falling out) there might be a claim.
The risk that occurred must have been undisclosed, and the patient would not have undergone the treatment had the risk been disclosed.
Patient has to prove that he/she would have refused the procedure had he/she been informed then there is lack of consent.
Judge: If surgery is necessary to save one's life, and judge asks patient whether they would have done the surgery had they known of the side effect. - Patient wont recover. - 39Standard of Care Professional Doctor DisclosuresAny professional IS HELD TO the same standard as ANY AVERAGE professional in the SAME FIELD.
A reasonably prudent person decides what must be disclosed:
Plainitff must show:
1. doctor failed to inform on
material risks
-- would the reasonable man change his mind if informed?
2. Had the patient been informed, the patient would not have consented.
Here, there is negligence for lack of information.
Objective Test - 40Breach Issue?Did the defendant breach their duty to the plaintiff?
- 41BreachWhen a duty is owed, the duty is one of ordinary, reasonable care. When the defendant fails to act like a reasonably prudent person under the circumstances, then the defendant breaches that duty of care to the plaintiff.
Discuss:
1. Hand Formula: N = B < P*L
Negligence= Burden < Probability * Liability
2. Utility of defendant's conduct
3. Burden of precaution (available alternatives to D's Conduct).
4. Probability of the risk
5. Severity of the Risk - 42Breach Hand FormulaBreach: Defendant's failure to act like a reasonably prudent person under the circumstances.
Hand Formula: B < P*L = N
N=Negligence
B=Burden
P=Probability
L=Loss or Severity
If its cheaper to avoid the harm then to cause it, and the defendant has not avoided it, defendant has acted unreasonably.
If the burden of of precaution is less than severity and probability of the risk (as in it's cheaper to avoid the risk than to cause it), then the defendant who has caused the risk has failed to act like a reasonably prudent person.
The hand formula promotes efficiency in the society, we want people to act reasonably, not to avoid every precaution. - 43Breach Factors to DiscussBreach: Defendant's failure to act as a reasonable prudent person.
1. Utility of the defendant's conduct
2. Burden of precautions (avail. alt. to D's Conduct).
3. Probability of the risk - 44Negligence BreachNegligence requires the defendant to do the reasonable thing, not everything the right way.
- 45Res IpsaRes Ipsa: when the very fact that an injury occurred may tend to establish breach in the absence of evidence. Res ipsa means "the thing speaks for itself"
3 Factors to est. to invoke Res Ipsa
1. The event doesn't normally occur without negligence.
2. The instrumentality was in the exclusive control of the defendant (at the time the negligence occurred).
3. Plaintiff did not contribute to the injury. - 46Effects of invoking Res Ipsa LoquiturMajority of Jx treat Res Ipsa as Circumstantial evidence that provides a substitute for direct evidence when the P does not have direct evidence of what happened.
- 47Res Ipsa ExamplesRes Ipsa: when the very fact that an injury occurred may tend to establish breach in the absence of evidence.
- Barrels don't fall by themselves unless someone is negligent.
- Rare exception where the court shifted the burden of proof to all the D's (forced the doctors to provide evidence). Each D had to prove their own innocence, this broke the silence between the Doctors. - 48Res Ipsa - Substitute for proof of breach Jury - Inference of NegligenceWhen the jury is faced with res ipsa, they are entitled to draw inference that the D acted negligently. D must have evidence to contradict the assumption of negligence.
When there is no active act by the D, jury can infer negligence. ONLY INFERENCE.
Res Ipsa creates permissive inference of negligence, the rebutting evidence by the D is also given weight by the jury.
A jury may or may not choose to draw inference that the D was negligent. - 49Res IpsaSubstitute for prove of breach
Res Ipsa speaks in absence of facts.
Instrumentality has to be in exclusive control of the defendant at the time the risk was created.
1. Doesn't occur without negligence
2. Defendant was the one negligent.
3. Plaintiff did not contribute to the injury. Did not cause it. - 50CausationCausation: To prove negligence, the D's conduct must be both the actual cause and the proximate cause of the plaintiff's injuries.
2 prong analysis. Need both. - 51Causation Actual CauseCausation: To prove negligence, the D's conduct must be both the actual cause and the proximate cause to the P's injuries.
Actual Cause:
1. Defendant's conduct is the actual cause of the plaintiff's injury if the injury would not have occurred "but for" the conduct by the defendant.
2. Substantial Factor: When two or more Ds' conduct concur to cause the plaintiff's injury each D who was a substantial factor is a cause in fact of P's injury.
3. Double Fault/ Alternative Liability: When two Ds are negligent, the court may shift the B/P to Ds to show which one was not the actual cause.
4. In mass tort litigation, court may apportion causation to each D based on the market share if D cannot prove out. - 52Causation Actual CauseWas the D's conduct the actual cause of injury to the plaintiff?
1. But/For: D's conduct is the actual cause of the P's injury if the injury would not have occurred "but for" the conduct by the defendant.
2. Substantial Factor: When two or more Ds' concur to cause the P's injury, each D who was a substantial factor is a cause in fact of P's injury.
3. Double fault/ Alternative liability: When two Ds' are negligent, the court may shift the B/P to the defendants to show which one was not the actual cause.
4. Enterprise Liability: In mass tort litigation, a court may apportion causation to each D based on the market share if the D cannot prove out. - 53Causation Examples*P's property burned because of D's fire combined w/ another fire. The D's fire was a substantial factor in the damage caused to P's property. IF one party causes substantial factor which leads to harm, then that party will pay for Damages.
*P did not show cancer was caused by the broken glass. [Post hoc ergo proper hoc - just because something happens after an event does not mean the event causes the event].
*Store breached duty to warn, lady trips develops cancer. She had no symptoms in her breast until she fell, once she fell she developed the bruise and experienced pain until she was diagnosed. Jury may give weight to whichever testimony they choose. Even if 6 Docs. say NO, but 1 says YES, the jury MAY pick the 1 Doctor. - 54Causation Examples*Tice case, qual hunting - since the plaintiff cannot show who was personally liable, can he show they acted in concert as a joint tort feasors? Yes plaintiff can recover, the court finds for P because the court shifted the B/P onto the D because the Ds' were equally at fault for negligence. Must show the D was personally at fault unless there is joint liability.
- 55Causation Proximate CauseWas the D's conduct the proximate cause of injury to the P?
Proximate cause is a policy consideration that limits the liability of the D's negligence to injuries that are the natural and probably consequences of the risk created by the D.
The test: the test is whether the injuries are a foreseeable consequence, if in hindsight, the injuries (results) are not extraordinary.
If the results are extraordinary, then there is no proximate cause. However, if the result is foreseeable even if the manner is not, there is proximate cause. A superseding cause can break the chain of proximate cause.
Intervening cause: An intervening cause exists when a second D intervenes, creating additional harm for which the original D may not be liable. The orig. D is held liable for the subsequent events, actors or forces if it is reasonably foreseeable that those subsequent events, actors or forces would occur.
In order for an intervening cause to relieve the negligent party from liability, such intervening cause must be truly indep. of and not set in motion by the original negligence. - 56Causation Proximate CauseWhat is the real cause of the negligence?
*Look at what the D did, what do we expect from the D's actions? The test is all based on foreseeability.
*We look at what actually happened.
*Chain of events, bizarre results, whose responsible?
1. If result is extraordinary, then it is unforeseeable and D is not the proximate cause.
2. If result is the type that was foreseeable, D will be liable even though the extent is more extensive or severe than expected.
(You take the P as you find him/her: W/ back injuru, fractured skull, etc. Tough*)
3. If result is foreseeable, but was brought about in an unforeseeable manner, the general rule is that D is the proximate cause as long as the result is foreseeable.
4. Intervening Conduct: When a second D intervenes, creating additional harm. - 57Causation Proximate Cause- very fact intense analysis Intervening ConductIntervening Conduct: if the intervening conduct was foreseeable, the D is liable for the negligence. The fact that the negligence of the 3rd party is foreseeable.
Go through reverse chronological order to figure out who did what.
In order to determine what D1 is liable for, we need to characterize D2's conduct... work backwards to make this analysis, even on the exam.
D1 negligently fails to put guard rails in the workspace to barricade a hole, D2 negligently pushes D1 into the whole. Since the barricade is meant to guard the hole, D1 failed to do so, D1 is responsible as well.
However, if D2 pushed P in the hole, then that is culpable, D1 is no longer responsible. D2 is responsible.
If there is no proximate cause, there is no liability.
Start with actual cause, if no actual cause... don't move to proximate cause. - 58Causation Proximate Cause SupersedingWhen the D2's act is worse, more bad, culpable, then D2 supersedes D1, then D1 is no longer responsible.
Deliberate wrong doer is the proximate cause and D1's liability gets cut off.
*To intentionally push someone in a hole. - 59Negligence Prima Facie Case (alleges facts to prove the underlying conduct)Negligence Prima Facie Case:
a. D owed P legal duty
b. D, by behaving negligently, breached that duty.
c. P suffered actual damage.
d. D's negligence was an actual cause of damage.
e. D's negligence was a "proximate cause" of damage. - 60Causation Proximate Cause Examples*D RR spilled gas in a street, subsequently ignited by a match thrown by D2. Ct held that IF D2 had thrown the match negligently, the RR would be held liable for the fire. BUT since D2 did it intentionally, his deliberate criminal act would cut off the RR's liability since it was not bound to anticipate the criminal acts of others.
When criminal acts are foreseeable, it will NOT cut off liability of the D who negligently exposes P to that risk.
*RR passed P's stop, drops her off a mile down in a known dangerous area, while walking back to her stop, she was assaulted. Ct dismissed the RR's argument that the assault was superseding cause & ruled for the P.
*D1 did not guard a worksite, D2 suffers seizure, did not take medication, crashed into P. P was thrown into the air and boiling enamel splattered over his face & Body. D1 still liable because he did not safeguard worksite. Ct: foreseeable risk is a car crashing into a work area and causing injury to work area. - 61Causation Proximate Cause Examples*Car rental leased P a car w/defective trunk. P was attempting to slam shut the trunk while parked, D2 was parked several car lengths away, suddenly car jumps and ran into P. Ct held Car rental place was not liable because intervening act was not foreseeable. The car is parked on a st. where other cars normally park, relative safety position. Freak accident unforeseeable.
- 62DamagesDamages: In an action for negligence, the plaintiff may collect special and general compensatory damages. If defendant were found to be negligent, the defendant would have to pay special damages for medical expenses, loss wages, disfigurement or property damages. The defendant may also have to pay general damages for pain and suffering.
- 63Damages Personal DamagesFinancial losses alone are not recoverable. Liability would go on forever.
- 64Damages Special Damages1.Past, present, & future medical expenses
2. Lost earning & earning capacity (for children - look at family background & economic status).
3. Property Damages
4. Disfigurement
5. The value of any gratuitous services - 65Damages General DamagesGeneral Damages: Pain & Suffering
*No recovery if the P suffers only economic loss. - 66Damages Collateral Source RuleCollateral Source Rule: Defendant is responsible for losses to the P caused by the D's negligence even if those losses are paid to P by a 3rd party. (i.e.: Insurance company).
The rule says any gift to the plaintiff or collateral source of compensation to the plaintiff does not reduce what the defendant owes. *They are a benefit to the plaintiff not the defendant.* - 67Damages Avoidable ConsequencesAvoidable Consequences: Denies recovery for P for damages which P could reasonably have avoided following D's negligence.
D is liable up to the point where the P decided to make it worse.
Consider: What is the risk involved? Probability of success? What does it cost? What is the pain involved?
Plaintiff has to act reasonably to mitigate damages. - 68DamagesTo recover for damages, you can't be pissed off, you have to have suffered damages.
- 69Damages Collateral Source RuleThe collateral source rule says that a defendant is liable for all damages proximately caused by his own negligence even if the plaintiff receives compensation from a collateral source.
- 70Damages Avoidable ConsequencesThe avoidable consequences rule holds that the D is not liable for any damages that the P could reasonably have avoided.
- 71Damages Joint & Several LiabilityWhen two or more defendants are the cause or plaintiff's injury, they are jointly and severally liable to the plaintiff.
This means each party is independently liable for the full extent of the injuries stemming from the tortious act, and plaintiff may collect the full amount of the damages from any plaintiff.
PLAINTIFF MAY NOT COLLECT MORE THAN 100% OF THE DAMAGES!
*Suppose D, F, H negligently injured P. P successfully sues D, F & H for $1,000,000.