Term
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Definition
| A defendant is liable for the full extent of injuries even thought the severity wasn't intended |
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Term
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Definition
| If defendant acts with the necessary intent to inflict certain intentional torts, but for some reason causes injury to a different person than intended, the defendant's intent is transferred |
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Term
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Definition
1. act (voluntary/intentional)
2. intent to cause an imminent apprehension of a harmful or offensive contact or intent to cause a harmful or offensive contact
a. desire "
b. KWSC "
3. imminent apprehension of offensive or harmful or offensive contact occurs |
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Term
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Definition
| Contact that would offend a reasonable sense of personal dignity |
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Term
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Definition
| What would people generally feel? (An objective standard) |
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Term
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Definition
| Without significant delay |
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Term
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Definition
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Term
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Definition
1. act (voluntary/intentional)
2. intent to cause H/O contact or imminent apprehension of H/O contact with a person of the other or a third person
a. Desire "
b. KWSC "
3. H/O contact results to the person of the other |
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Term
| False Imprisonment (elements) |
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Definition
1. act (voluntary/intentional)
2. intent to confine another in a bounded area
a. desire "
b. KWSC "
3. confinement occurs for an appreciable amount of time
4. victim is conscious of confinement or harmed by it |
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Term
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Definition
| Area in which freedom of movement is restricted |
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Term
| Confinement can occur through... |
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Definition
1. Physical restraint
2. Threats of force
3. False claims of legal authority |
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Term
| Trespass to Land (elements) |
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Definition
1. act (voluntary/intentional)
2. intent to enter the land (not intent to trespass)
a. Desire "
b. KWSC "
3. Entry occurs
4. Land of another |
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Term
| Entry can be established by... |
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Definition
1. actual entry
2. refusal to leave
3. entry of an object |
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Term
| Trespass to Chattel (elements) |
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Definition
1. act (voluntary/intentional)
2. intent to interfere
a. desire "
b. KWSC "
3. with the chattel of another |
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Term
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Definition
| To temporarily deprive OR use or intermeddle with the property in a way that causes damage |
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Term
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Definition
| Tangible, moveable property |
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Term
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Definition
1. act (voluntary/intentional)
2. intent to exercise substantial dominion
a. desire "
b. KWSC "
3. over chattel property of another
4. which so seriously interferes with another's control over chattel that defendant is responsible for the full value thereof |
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Term
| To determine substantial dominion, look to... |
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Definition
1. extent and duration of control
2. defendant's intent to assert a right to the property
3. defendant's good faith
4. the harm done
5. expense or inconvenience caused |
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Term
| Intentional Infliction of Emotional Distress (elements) |
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Definition
1. extreme and outrageous conduct
2. intent to cause severe emotional distress
a. desire "
b. KWSC "
3. OR recklessly cause severe emotional distress
4. severe emotional distress occurs |
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Term
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Definition
| Deliberate disregard of a high probability severe emotional distress will occur |
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Term
| To determine outrageous conduct, look to... |
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Definition
1. context of relationship
2. severity and regularity of conduct
3. knowledge of plaintiff's vulnerability |
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Term
| To establish a third-party claim to IIED... |
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Definition
1. the third party must have been present
2. the third party is either a family member or suffers bodily harm as a result |
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Term
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Definition
1. reasonable force to protect against imminent threat of harm
2. reasonably apparent need to use such force
3. force used is reasonable in relation to the threat posed |
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Term
| Public necessity is used to... |
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Definition
| prevent imminent public danger |
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Term
| Imminent domain (constitutional taking) |
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Definition
| When the government takes your property for public use, you are entitled to compensation |
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Term
| Private necessity is used to... |
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Definition
| prevent imminent private danger (himself, chattel, others, etc.) but must pay for the damages incurred because of it |
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Term
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Definition
1. Immunity
2. Nonfeasance/Misfeasance
3. Duty
-> S/C
4. Breach
a. Failure to exercise S/C
b. Negligence per se
c. Res ipsa loquitor
5. Damages
6. Causation
a. Actual
b. Proximate |
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Term
| What is the standard of care for people with mental or physical disabilities? |
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Definition
| Use the RP S/C for people with mental disabilities, but for people with physical disabilities use the standard of care of a RP with the same disabilities |
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Term
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Definition
1. Parent/child
2. Governmental |
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Term
| Parent/child immunity exists when... |
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Definition
1. The parent is exercising authority over the child
2. The parent is exercising ordinary parental discretion with respect to general care (food, medical services, etc.) |
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Term
| The Federal Tort Claims Act allows for... |
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Definition
| state law claims against the federal government |
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Term
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Definition
1. The substantive law applied is the state law
2. The government is only liable to the extent that a private person (not municipality or state) would be in similar circumstances |
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Term
| Discretionary Immunity Exception (Governmental Immunity) |
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Definition
- Applies if the challenged action was discretionary and was the type Congress meant to protect
- Design or adoption of a course of action is discretionary and protected by this exception
- Implementation of the course of action is not discretionary and is not protected by the exception because it is mandatory in nature |
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Term
| Immunity for Specific Governmental Activities (Governmental Immunity) |
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Definition
| Immunity for military actions, delivery of mail, etc. |
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Term
| Immunity for Enforcement of a Statute or Regulation (Governmental Immunity) |
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Definition
| Applies even if the statute or regulation turns out to be invalid for any reason |
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Term
| Immunity for Certain Dignitary or Economic Reasons (Governmental Immunity) |
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Definition
| Provides immunity for torts arising out of things like battery, interference with a contract, etc. |
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Term
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Definition
- a failure to act
- risks to the plaintiff do not change
- there is no duty to aid someone else, unless an exception exists AND harm is foreseeable
- exceptions: special relationship, undertaking, you caused the harm, you created the risk of harm, status dictates it |
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Term
| Special Relationships (Nonfeasance Exception) |
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Definition
1. carrier-passenger
2. innkeeper-guest
3. landowner-lawful entrant
4. employer-employee
5. school-student
6. landlord-tenant
7. custodian-person in custody |
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Term
| Test to determine when harm is foreseeable and therefore when a landowner owes a duty to protect: |
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Definition
1. Specific Harm Rule
2. Prior Similar Incidents Rule
3. Totality of the circumstances
4. Balancing test |
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Term
| Specific Harm Rule (foreseeable harm test for landownder's duty) |
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Definition
| Landowner owes a duty to protect only when he is aware of specific, imminent harm about to befall the plaintiff |
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Term
| Prior Similar Incidents Rule (foreseeable harm test for landowner's duty) |
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Definition
| Past history of criminal acts puts the landowner on notice of future risks and makes similar crimes foreseeable |
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Term
| Gratuitous promise + no action (re: undertaking exception) |
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Definition
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Term
| Gratuitous promise + reliance + no action (re: undertaking exception) |
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Definition
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Term
| Contract + little/no action BUT regarding safety (undertaking exception) |
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Definition
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Term
| If the undertaking is substantial enough... |
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Definition
| it creates a special relationship. |
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Term
| A therapist is required to warn of danger when... |
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Definition
| the victim is specifically named AND foreseeable |
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Term
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Definition
- Common law: no duty to patrons
- Today: some courts will hold a tavern owner liable for negligent entrustment because s/he does owe a duty to patrons and should know when the patron cannot handle what is given to them |
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Term
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Definition
- doing something, but doing it incorrectly
- defendant's actions create additional risks to the plaintiff
- duty owed to the plaintiff is the R/P SC |
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Term
| Reasonable Person Standard of Care |
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Definition
| The care a reasonable person would exercise under the same or similar circumstances to avoid or minimize reasonably foreseeable risks of harm to others |
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Term
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Definition
- Legal obligation imposed on an individual requiring that s/he act as an ordinary, prudent, and reasonable person
- Measured the applicable standard of care
- Can be expanded or limited based on status |
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Term
| Duty carriers owe passengers |
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Definition
- More than ordinary care
- S/C stops "just short of ensuring safety"
- This higher care has been eliminated by many jurisdictions |
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Term
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Definition
| Someone who enters land without consent |
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Term
| Business Invitee (definition) |
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Definition
| Someone who is on the property with consent of the owner for the financial benefit of the owner of the property |
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Term
| Public Invitee (definition) |
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Definition
| Someone who is on property that is open to the public |
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Term
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Definition
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Term
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Definition
| Failure to exercise any care whatsoever toward those whom he owes a duty of care, and his failure occurs under circumstances in which there is great probability that harm will result |
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Term
| Duty owed to trespassers/invitees by landowners |
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Definition
- to avoid injury by willful or wanton conduct
- UNLESS the landowner is aware of the presence of of a trespasser/licensee AND the trespasser/licensee is in a position of peril...in this case the duty CHANGES to requiring ordinary care of the landowner |
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Term
| Duty owed to child trespassers |
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Definition
| The same as adult trespassers (avoid injury by willful or wanton conduct) UNLESS there is an attractive nuisance...in which case use the RP S/C |
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Term
| Attractive Nuisance Doctrine: A landowner is liable for physical harms to child trespassers caused by an artificial condition if: |
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Definition
1. The place where the condition exists is one upon which the owner knows or has reason to know that children are likely to trespass
2. The condition is one of which the owner knows or has reason to know will involve an unreasonable risk of death or serious bodily injury to such children
3. The children, because of their youth, do not appreciate the risk involved
4. The burden of eliminating the danger is slight compared with the risk to children involved
5. The owner fails to exercise reasonable care to eliminate the danger or otherwise protect children |
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Term
| Medical Malpractice Standard of Care |
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Definition
| A physician must exercise that degree of care, skill, and proficiency exercised by a reasonably careful, skillful, and prudent practitioner in the same class to which s/he belongs, acting under the same or similar circumstances |
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Term
| Factors to consider when determining if a doctor acted reasonably |
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Definition
1. Locality
2. Advances in the profession
3. Availability of facilities
4. Whether the doctor is a specialist or general practitioner |
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Term
| How does custom relate to the standard of care? |
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Definition
- In medical malpractice, custom (what doctors normally do) IS the standard
- In regular negligence, custom is just evidence of what the standard MAY be |
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Term
| Res ipsa loquitor in medical malpractice |
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Definition
- Expert testimony is allowed to show res ipsa (although this is not allowed in regular negligence)
- Typically not available when the plaintiff cannot establish whose negligence caused the injury, BUT exceptions can be made when the patient was under anesthesia |
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Term
| Informed Consent Standard of Care (2 types) |
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Definition
1. Patient - physician owes a duty to disclose in a reasonable manner all significant medical information that the physician possesses or R'ly should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure
2. Professional - what doctors are generally going to disclose (does not take into consideration any information that patient might believe to be important) |
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Term
| Causation (Informed Consent cases) |
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Definition
(do NOT use "but for" - it does not work)
1. the unrevealed risk must materialize, AND
2. the patient would not have undergone procedure has s/he known the risks, AND
3. reasonable people would not have undergone the procedure had they known the risks |
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Term
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Definition
A. Uses the duty and breach of regular negligence
B. Statute determines the S/C
i. Statute must clearly define standard of conduct
ii. Statute must have intended to prevent the type of harm caused
iii. The plaintiff must be a member of the class of persons the statute was designed to protect
C. Breach of the statute is conclusive of negligence |
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Term
| Res ipsa loquitor (elements) |
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Definition
1. The accident which caused the plaintiff's injury probably does not ordinarily happen in the absence of negligence
2. The instrumentality that caused the injury was probably under control of the defendant
3. No third party contributed to the injury |
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Term
| True or False: Res ipsa loquitor is conclusive of negligence. |
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Definition
| FALSE! Res ipsa is an inference of negligence, it is NOT conclusive. |
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Term
| Actual Causation Tests (3 types) |
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Definition
1. "But for" test
2. Substantial factor test (use when "but for" yields clearly wrong results when both defendants are negligent and both caused harm)
3. Alternate causation test (use when both defendants are negligent and only one caused harm - the burden then shifts to defendants to show who caused harm) |
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Term
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Definition
| "But for" the defendant's negligence, plaintiff would not have suffered injury (at that specific time) |
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Term
| Proximate cause steps for analysis |
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Definition
1. Was the harm suffered foreseeable? (yes)
2. Was the manner in which the harm came about incredibly unforeseeable? (no)
3. Have the risks created by the original negligent act been terminated? (no)
4. Was the plaintiff foreseeable? (yes)
(if all answers satisfied, then the defendant is a proximate cause) |
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Term
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Definition
| A cause that lies within the scope of foreseeable risks or has a reasonable connection to it |
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Term
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Definition
- An act outside the scope of foreseeable risks that may relieve a defendant of liability
- May apply even when the harm suffered is foreseeable if the way in which it came about was incredibly unforeseeable (i.e. a plane crashing on a highway)...BUT, even if the acts following the negligence are bizarre and crazy, the original defendant can still be held liable if the "disturbed waters" have not become "placid and normal" |
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Term
| Negligent Infliction of Emotional Distress (elements) |
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Definition
1. Close relation of the plaintiff and the victim
2. Plaintiff was present at the scene of the injury at the time it occurred
3. And is then aware that it caused injury to the victim |
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Term
| Test to determine foreseeability of the plaintiff (re: NIED) |
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Definition
1. Impact Rule: There must be physical contact/touching in order to impose liability
2. Physical Manifestations Rule: There must be physical signs of emotional distress
3. Zone of Danger Test: The plaintiff must be in the zone of danger of physical impact AND be put in fear for his safety, and then suffer emotional distress as a result of that fear |
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Term
| Loss of Consortium (elements) |
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Definition
1. Show that the defendant is liable for the spouse's injury
2. Show that the elements of the relationship are deeply harmed as a result of the injury
(Damages only recoverable when spouse is injured, not when spouse dies) |
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Term
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Definition
1. A child cannot recover from fetal injuries caused by the mother because a mother owes no duty to a fetus
2. However, a child, once born can recover for fetal injuries sustained because of a third party
3. Courts differ as to whether a child born years after an injury to the mother (by a doctor) is a foreseeable plaintiff
4. There are 3 views regarding what a parent may recover for the costs of rearing an unplanned child:
a. Full Recovery Rule (all costs)
b. Benefit Rule (costs offset by benefits of having a child)
c. No Recovery Rule |
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Term
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Definition
| Allow for any claims a deceased would have had s/he lived to be brought against a defendant |
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Term
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Definition
| Allow for those who were dependent on the deceased to bring claims against the defendant for damages |
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Term
| Several Liability/Proportionate Share |
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Definition
| Each defendant pays (only) his/her share to the plaintiff |
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Term
| Joint and Several Liability |
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Definition
- Plaintiff can enforce judgment against any of the defendants or each defendant pays his or her share
- Can be used when 2 tortfeasors act independently to cause 1 injury
- Can be used when defendants act in concert |
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Term
| Property Strict Liability (elements) |
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Definition
1. Activity is one on which strict liability is imposed
2. Damages
3. Causation |
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Term
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Definition
- You are free to do whatever you want on your own property so long as you don't injure someone else on his/her own property
- You have a duty to keep something enclosed on your property if it will cause harm when it escapes |
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Term
| Inherently Dangerous Activities |
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Definition
| Courts have retained strict liability for certain kinds of inherently dangerous activities (such as blasting) |
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Term
| Vicarious Strict Liability |
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Definition
| Holding a person other than the tortfeasor liable |
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Term
| Respondeat Superior (elements) |
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Definition
1. a tort was committed
2. an employer-employee relationship exists
3. the tortfeasor was acting in the scope of employment |
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Term
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Definition
| Holding an employer liable for actions of an employee |
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Term
| If the employment itself engenders the emotions that lead to an intentional tort... |
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Definition
| then the employer cannot be held liable. |
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Term
| To determine an employer-employee relationship, look to... |
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Definition
- Whether the employer exerts significant control over the employee (does the employer just control the outcome or the way in which the outcome is achieved?)
- The selections and engagement of the servant
- The power to discharge
- The payment of wages
- Whether the employer is the sole employer
- Whether the employer provides equipment, benefits, etc. |
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Term
| Exceptions to "scope of employment" |
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Definition
1. Coming and Going Rule: Generally, if one is coming or going from work, s/he is not acting within the scope of employment UNLESS the trip involves incidental benefit to the employer
2. If the employee is on a frolic: a significant deviation from employment activity (as opposed to a detour in which the employee remains in the scope of employment) |
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Term
| To show reentry of the scope of employment from a frolic: |
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Definition
1. Employee must have formulated the intent to act in furtherance of employer's business, AND
2. Intent must be coupled with a reasonable connection in time and space with the work in which he should be engaged |
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Term
| Types of defective conditions |
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Definition
1. Manufacturing defect
2. Design defect
3. Warning defect |
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Term
| Rebutable Heeded Presumption (re: warning defect) |
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Definition
| Assumption that people read, understood, and would have heeded the warning. |
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Term
| Products Liability (elements) |
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Definition
1. Defective condition
2. Damages
3. Causation |
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Term
| Tests for determining a manufacturing defect: |
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Definition
1. 402A (Consumer Expectations Test): Is the product in a condition more dangerous than an ordinary consumer would expect when used in its intended or reasonably foreseeable manner?
2. Balancing Test: Do the benefits of the challenged design outweigh the risk inherent in such design? Look to: (a) gravity of danger posed, (b) foreseeability of harm, and (c) mechanical and economic feasibility of alternative design |
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Term
| Tests for determining a design defect: |
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Definition
1. 402A (Consumer Expectations Test): Is the product more dangerous than the ordinary user or consumer would expect when used in its intended or reasonably foreseeable manner?
2. Restatement 3d: Foreseeable risks of harm could have been reduced or avoided by the adoption of a reasonable alternative design and the omission of the alternative design renders the product not reasonably safe |
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Term
| Test for determining a warning defect: |
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Definition
(Is there only one? Or is it consumer expectation/balancing test also? Someone help me out with this answer)
1. Restatement 3d: The foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings and the omission of the instructions or warnings renders the product not reasonably safe |
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Term
| Misuse of a product under Restatement 3d |
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Definition
| Defeats proximate cause because it is unforeseeable |
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Term
| Analysis of manufacturing, design, and warning defects |
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Definition
- Manufacturing defects are true strict liability
- Design and warning defects are analyzed more similar to negligence |
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Term
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Definition
| Negligence of the plaintiff that bars recovery completely |
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Term
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Definition
| Plaintiff's damages are reduced by the percentage of plaintiff's own negligence |
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Term
| Modified Comparative Fault |
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Definition
| Plaintiff's damages are reduced by the percentage of the plaintiff's own negligence so long as the plaintiff is not more at fault than the defendant, otherwise recovery is barred (plaintiff cannot be more than 50% at fault) |
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Term
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Definition
| A person is aware of the risk, understands the risk, and voluntarily assumes the risk anyway |
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Term
| Primary Assumption of the Risk |
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Definition
(I really have no idea what this is...I just copied someone's notes. If someone can help me out that'd be great)
- A defendant owes no duty to protect plaintiff from harm
- Bars plaintiff from recovery |
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Term
| Secondary Assumption of the Risk |
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Definition
(I really have no idea what this is...I just copied someone's notes. If someone can help me out that'd be great)
- Defendant may have been negligent and plaintiff may have assumed certain risks so that they may be compared
- Treated as comparative negligence and may reduce plaintiff's recovery |
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Term
| Express (Oral/Contractual) Assumption of the Risk |
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Definition
- Cannot offend public policy
- Cannot be unclear or vague
- Are not valid if the plaintiff is compelled to sign
- Analyze if the risk is within the scope of release
- Bars recovery |
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Term
| Implied Assumption of the Risk |
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Definition
- Risks are inherent in the activity
- Voluntary participation
- COMPLETE implied assumption bars recovery |
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Term
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Definition
- Bars state claims
- Traditional Rule: injury occurs on the date of the alleged negligence
- Discovery Rule: statute of limitations begins running when plaintiff discovers the injury and the defendant's role in causing it
- Preemption and compliance with the statute does not preempt tort claims and is not a defense |
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