Term
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Definition
| Duty, Breach, Cause, Harm |
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Term
| Negligence- the Defendant must... |
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Definition
1. fail to exercise the care that a reasonable person in his position would exercise
2. act in a way that breaches the duty to prevent the foreseeable risk of harm
3. breach must be the cause of P's injuries |
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Term
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Definition
| duty to exercise reasonable care |
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Term
| Foreseeability of Harm (Cardozo) |
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Definition
| owed to the P only if she is a member of the class of persons who might be foreseeably harmed as a result of the d's negligent conduct. |
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Term
| Duty in the Air (Andrews) |
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Definition
D can foresee harm to anyone as a result of his negligence.
Duty is owed to everyone harmed as a result of his breach. |
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Term
| Special Relationships of Duty |
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Definition
May have duty if P is in complete control & trust of the P
look @ relationship between the parties |
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Term
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Definition
| generally no duty to act unless special relationship |
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Term
| Voluntary Assumption of Care |
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Definition
| Duty once attempts to aid & take control |
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Term
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Definition
| if injured as a rescuer, can look to OG tortfeasor |
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Term
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Definition
| if it is your job to rescue, cannot bring lawsuit |
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Term
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Definition
| fails to act as a reasonable person in the same situation would act |
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Term
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Definition
| Reasonable prudent person under the circumstances. OBJ, measured by reasonable person not particular D |
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Term
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Definition
Standard of Care imposed upon a child is that of a reasonable child of similar age, intelligence and experience.
A child engaged in an adult activity is held to the same standard as an adult.
R§ 10 |
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Term
| Standard of Care- Disability |
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Definition
Reasonableness of the conduct of a D with a physical disability will be determined based upon a reasonably careful person with same disability.
R§ 11
A mentally disabled person is held to the standard of someone of ordinary intelligence & knowledge |
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Term
| Standard of Care- Professional |
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Definition
profession person is expected to exhibit the same skill, knowledge, and care as another person in same community.
R§ 12 |
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Term
| Standard of Care- Emergency |
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Definition
emergency circumstance is to be taken into account in determining weather the actor's resulting conduct is that of the reasonable careful person
R§ 9 |
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Term
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Definition
Evidence of a custom in a community or industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive. Entire community or industry may be negligent
R§ 13 |
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Term
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Definition
| When a criminal or regulatory statute imposes upon any person a specific duty for the protection or benefit of others; if the D neglects to perform that duty, he is liable in negligence to anyone in that class of people intended to be protected by the statute, for any accidents or harms of the type the statute was intended to protect against, that were proximately caused by the D's violation of the statute. |
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Term
| Standard of Care- Common Carriers |
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Definition
| Common carrier no longer held to exceptional standard of care, they are now liable to a reasonable standard. |
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Term
| Cost Benefit Analysis (Learned Hand Formula) |
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Definition
Courts consider 3 factors in determining whether D had acted negligently:
1. foreseeable likelihood that the D's conduct would cause harm (probablility of harm)
2. foreseeable severity of any resulting harm (severity of harm)
3. D's burdens in avoiding the harm (burden for prevention) |
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Term
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Definition
| by preponderance of the evidence |
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Term
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Definition
Requirements:
i. accident was of a kind that ordinarily does not occur in the absence of negligence
ii. it was in exclusive control of the D
iii. not due to any action on part of the P |
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Term
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Definition
| P must prove that D's action were both the actual cause (cause in fact/but for) and the proximate cause of P's injury |
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Term
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Definition
| injury would not have occurred but for the D's tortious acts or omissions |
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Term
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Definition
| Was the D's tortious conduct a substantial factor in causing the P's harm? |
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Term
| Multiple Sufficient Factor |
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Definition
| Each of the causes were sufficient in themselves. Even if you have 2, by themselves would they have caused the harm? |
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Term
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Definition
| 2 or more tortfeasoers were acting pursuant to a common plan or design and the acts of one or more of them caused the P's harm, all D's will be held jointly and severally liable. |
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Term
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Definition
| MD negligence reduces P's chance of survival, must prove that there was diminished likelihood of achieving a more favorable outcome |
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Term
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Definition
| Scope of Liability- D's conduct and P's harm must have a connection reasonably close in order to justify imposing liability |
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Term
| Foreseeable Test (Prox Cause) |
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Definition
| @ time of breach, the general type of accident was reasonably foreseeable consequence of D's conduct. Not too remote, natural and continuous sequence, direct connection, etc. |
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Term
| Risk Standard (Prox Cause) |
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Definition
P can recover if harms caused were within the scope of liability of the D's conduct.
Focus on breach- was the harm within what you imagined as a result of the breach? |
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Term
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Definition
| factual cause of the P's harm that contributes to harm |
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Term
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Definition
intervening cause that breaks the chain of proximate causation between D's acts and the P's harm.
an unforeseeable intervening cause can be a superseding cause. |
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Term
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Definition
| P as you find them. responsible for harm that occurs to P if they are unforeseeable. |
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Term
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Definition
| P must show that D's negligent conduct was a substantial factor in bringing about the P's harm w/o the presence of an intervening act sufficient to break the causal chain. |
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Term
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Definition
contributory negligence
assumption of risk |
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Term
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Definition
| P fails to exercise reasonable care and contributes to their own injury |
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Term
| Contributory negligence: traditional rule |
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Definition
| P's contributory negligence is a complete bar to recovery, regardless of % that P's own negligence contributed to the harm |
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Term
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Definition
| apportion damages between a D and P based on their degrees of fault. |
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Term
| Pure Comparative Fault Jurisdiction |
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Definition
| reduced by the portion of P's fault. |
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Term
| 49% Comparative Fault Jurisdiction |
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Definition
| If P is less at fault than the D (49% <) P's recovery is reduced by his % of fault |
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Term
| 50% Comparative Fault Jurisdiction |
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Definition
If P is more at fault than the D (i.e. 51% +) P's recovery is barred
If P is equally at fault, 50%, P recovers 50% of total damages |
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Term
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Definition
| Agreement by P to accept risks created by D's activity |
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Term
| Exculpatory Clauses- Tunkl Factors |
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Definition
when considering enforcing exculpatory provisions, courts ill look at 6 factors to see if its against public policy:
1) Whether business is of a type suited to regulation
2) Whether D's activity is open to the public
3) Whether D performs a service for the public
4) Whether parties had equal bargaining power
5) Standard "take it or leave it" language
6) Whether P is under D's control |
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Term
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Definition
three general situations where strict liability is imposed: DAD
Dangerous activities
Animals
Defective or dangerous products |
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Term
| Abnormally Dangerous Activities |
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Definition
| activity that creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercises & the activity is not commonly engaged in. |
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Term
| Common abnormally dangerous activities |
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Definition
| mining, blasting, using explosives, excavating, etc. |
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Term
| Factors to Determine Abnormally Dangerous Activities |
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Definition
1. High degree of risk of some harm
2. likelihood harm will be great
3. inability to eliminate risk by exercising reasonable care
4. not of common usage
5. inappropriate to place being carried out
6. reinforcing value of activity to community itself |
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Term
| Strict Liability- Wild Animals |
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Definition
owner of wild animals is subject to S.L.
Wild animal is one that is not generally domesticated. |
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Term
| Strict Liability- Domestic Animals |
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Definition
| S.L for domestic animals if owner knows or has reason to know that animal's dangerous propensities |
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Term
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Definition
Design Defect
MFG Defect
warning/Instruction Defect |
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Term
| Strict Product Liability Claim: |
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Definition
| must prove product was defective (by mfg, design or failure to warn), the defect existed @ time the product left D's control & defect caused P's injuries when used in an intended or reasonably foreseeable way |
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Term
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Definition
Deviation from what the MFG intended the product to be.
test: focus on the process/procedure of product, look @ process to see what is problematic. |
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Term
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Definition
consumer expectation test: used when products are commonly understood
risk utility test: used when there is a complex product outside of ordinary consumer knowledge |
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Term
| Consumer Expectation Test: |
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Definition
4 elements:
1. MFG's design failed to perform as safely as an ordinary consumer would expect
2. Defect existed when product left MFG
3. Defect was legal cause of P's injury
4. Used in reasonably foreseeable way |
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Term
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Definition
Look @ Risk of current design (prob. of harm) (severity of harm), the benefit of current design, and alternative feasible design that serves benefit but lower risks.
Alternative design must be economically feasible. |
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Term
| Warning/Instruction Defect: |
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Definition
manufacturers failure to provide an adequate warning related to the risks of using the products
exists if there were foreseeable risks of harm, not obvious to ordinary user of product, which risks could have been reduced or avoided by providing reasonable instructions or warnings. |
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Term
| Indeterminate Defect Theory: |
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Definition
similar to res ipsa.
accident does not occur without defect, elimination of other causes, D was in control of product defect |
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Term
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Definition
| P fault & assumption of risk |
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Term
| Product Liability- P Fault |
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Definition
have to show some kind of negligence/unreasonable use of product.
Always use hypothetical reasonable person.
comparative fault reduces recovery |
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Term
| Product Liability- Assumption of Risk |
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Definition
will reduce his recovery. subjective standard.
P must be aware of danger and knowingly expose self to it. |
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Term
| Product Liability- Product misuse |
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Definition
| typically negates liability is product is used in matter that is neither intended by nor reasonably foreseeable to the MFG |
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Term
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Definition
| publish false statements or defamatory language about P that damages P's reputation. |
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Term
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Definition
individuals have right to be left alone (protected interest)
P must prove there was an intentional intrusion that would be highly offensive to a reasonable person. |
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Term
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Definition
4 elements:
1. extreme and outrageous conduct (far out of socials norms)
2. intent to cause or disregard of a substantial probability of causing severe emotional distress (intentional or reckless)
3. causal connection
4. severe emotional distress |
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Term
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Definition
Intentionally infringing on legally protected interest
acts with purpose of causing consequences and acts knowing that with substantially certainty that the result will occur |
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Term
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Definition
| Elements: causes a harmful or offensive contact with the person. acts with the intent to cause contact or apprehension of conduct |
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Term
| Harmful or Offensive Contact |
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Definition
harmful when it causes injury, physical impairment, pain or illness.
Objective Test |
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Term
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Definition
P's reasonable apprehension of an imminent harmful or offensive bodily contact caused by the D's actions or threat with the intent to cause apprehension of such contract or contact itself
BODILY CONTACT IS NOT REQUIRED |
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Term
| Dual v. Single intent jurisdiction |
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Definition
Single: intend contact...ends up being harmful & offensive
Dual: intend to contact & intend that contact to be harmful or offensive |
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Term
| Defenses to Intentional Torts |
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Definition
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Term
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Definition
express or implied consent
Express- words or actions manifests willingness to submit to D's conduct.
Implied- silent in situations in which a reasonable person would object to D's actions |
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Term
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Definition
well grounded belief that an assault was about to be committed against you (or family)
- use reasonable force
- may use deadly force if she has a reasonable belief that force sufficient to cause serious bodily injury or death is about to be intentionally inflicted
- must be immediate |
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Term
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Definition
when one person has the right, ability or duty to control the activities of another, even tho the first person was not directly liable for the injury.
Employer is vicariously liable for employee's torts if the employer has the right to control the activities of the employee- has to be within scope of employment. |
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