Term
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Definition
| An injury to your person, reputation, or your property |
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Term
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Definition
| A motion to dismiss the case from court because the case has no merit. Usually made by the defendant. |
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Term
| Motion for Summary Judgment |
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Definition
| A motion for the judge to decide because it is strictly a legal question. Jury is not needed for fact finding because facts are already clear. Can be for parts of the case. Usually made by the defendant. |
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Term
| Motion for Directed Verdict |
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Definition
| After the evidence has been heard, a motion made because the jury does not need to decide anything because the facts are undisputed. Usually made by defendant. |
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Term
| Motion for a Judgment Not Withstanding the Verdict |
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Definition
| Judge overrules the jury’s decision and orders new trial. Very rare. Made by losing party. Made after verdict. |
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Term
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Definition
| Duty, Breach, Causation, Damage |
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Term
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Definition
| A duty to use reasonable care |
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Term
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Definition
| A failure to conform to the required standard |
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Term
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Definition
| A reasonably close causal connection between the conduct and the resulting injury |
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Term
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Definition
| Actual loss or damage resulting to the interests of another |
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Term
| The "Reasonable Person" Standard of Care |
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Definition
| Duty to exercise the care that would be exercised by a reasonable person under the same or similar circumstances. What a reasonable should have known, not what they actually knew. |
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Term
| Sudden Emergency Doctrine |
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Definition
| What a reasonable person would do in that emergency |
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Term
| Blackouts and Physical Illness Standard of Care |
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Definition
| Reasonable person must use the care commensurate with the known or reasonably known foreseeable danger |
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Term
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Definition
| Defendants not liable if they didn’t have notice (i.e. it was the first time it had happened) – can’t prevent or predict |
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Term
| Physical Disabilities Standard of Care |
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Definition
| person with disability must take cautions, be they more or less, which the ordinary reasonable person would if he was so disabled |
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Term
| Mental Illness Standard of Care |
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Definition
| Insane adults and others suffering mental disability are liable both for intentional and negligent torts. The same is true who is voluntarily intoxicated. |
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Term
| Children Standard of Care |
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Definition
| Children are not held to the reasonable person standard, but are instead held to a standard that is largely subjective. A minor is required to conduct himself only with the care of a minor of the same age, intelligence, maturity, and experience in similar circumstances |
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Term
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Definition
Children 0-7 -- Incapable of negligence
Children 7-14 -- Presumed incapable of negligence but plaintiff can rebut
Children 14+ -- Presumed capable of negligence but defendant can rebut |
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Term
| The Professional Standard of Care |
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Definition
| The reasonable person is amended to include knowledge, training, and skill of an ordinary member of that profession in good standing (not average member of profession) |
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Term
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Definition
| Negligence of a licensed medical professional |
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Term
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Definition
Elements:
- Doctor failed to inform the patient of the material risks involved with treatment
- Doctor treated the patient
- If the patient had known the risks, patient would not have consented to treated
- The risks that were not warned against are the ones that caused the injury |
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Term
| Objective vs. Subjective Reasonable Patient |
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Definition
Subjective – “I would have chosen a different course of treatment”
Objective – “The reasonable person would have chosen a different course of treatment” |
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Term
| Defenses to Informed Consent |
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Definition
| Emergency, reasonable person would know the risks, patient already knew the risks, full disclosure would be detrimental to a patient's total care |
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Term
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Definition
| If an employee commits a tort in the scope of their employment, their employer may be held liable. |
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Term
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Definition
| Outside the scope of employment |
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Term
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Definition
| Inside the scope of employment |
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Term
| Determinants of Scope of Employment |
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Definition
| Employee's intent, nature, time, and place of the deviation, time consumed by the deviation, work for which the employee was hired, incidental acts of reasonably expected by the employer, freedom allowed the employee in performing his job responsibilities |
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Term
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Definition
| Producing the evidence legally sufficient to make the case |
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Term
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Definition
| Does the jury "buy" the evidence. Most prove by the preponderance of evidence 51%. |
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Term
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Definition
A statute is allowed to set the standard of care if...
1. The plaintiff is within the class of persons the statute meant to protect.
2. The action is the type harm that the statute meant to protect against. |
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Term
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Definition
| A duty to all is a duty to none. |
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Term
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Definition
| Useful to help set the standard of care but not a conclusive test. Jury must be satisfied. Entire industry custom can be substandard. |
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Term
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Definition
| Direct and Circumstantial |
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Term
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Definition
| Doesn't require any inference to be drawn from the fact. Either personally observed or expert testimony |
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Term
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Definition
| Requires one step past personal knowledge. Requires an inference from it. |
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Term
| Categories for Slip and Fall cases |
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Definition
1. Smooth or slippery surface
2. Foreign Substance
3. Tracked in Water
4. Defective Surface |
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Term
| Smooth or Slippery Surface |
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Definition
| Store is only liable if the floor has been waxed or dressed improperly |
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Term
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Definition
If the slippery substance is grease, liquid, or produce, then the burden is on the customer to prove:
- The store of its employee placed the substance on the floor
- The store had actual knowledge of the presence of the substance and failed to remove it or warn the customer; OR
- The substance had been on the floor long enough that the owner or occupier should have known of its presence and removed it or warned the customer |
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Term
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Definition
| Owner’s liability can only be established if the water is a significant distance from the door |
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Term
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Definition
| Only liable for holes or defects in areas traveled by customers and they have to create an unreasonable risk of harm |
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Term
| Slip and Fall Cases - Traditional Approach |
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Definition
| Plaintiff is required to prove a store caused a substance, matter, or item to be on the floor; the store operator had actual knowledge of its presence; OR the substance, matter, or item had been on the floor for so long that the store operator should have known of the condition |
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Term
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Definition
| Nature of defendant’s business gives rise to a substantial risk of injury to customers from slip and fall accidents. |
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Term
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Definition
"The thing speaks for itself"
Elements:
- The instrument that caused the harm was in exclusive control of the defendant.
- The incident would normally not occur in the absence of negligence.
- Plaintiff’s actions could not have had anything to do with the accident. |
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Term
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Definition
| The defendant MORE LIKELY THAN NOT caused the plaintiff's injuries |
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Term
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Definition
One Tortfeasor = But-For Test
Joint Tortfeasors = Substantial Factors Test |
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Term
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Definition
| But for the occurrence, the result would not have happened |
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Term
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Definition
| Two or more people who act in concert to commit a tort or act separately to commit the same tort. |
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Term
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Definition
| Was the defendant’s conduct a substantial factor of plaintiff’s injuries? |
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Term
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Definition
| Where separate acts of negligence combine to produce a single injury each tortfeasors is responsible for the entire result, even though his act alone might not have caused it |
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Term
| Joint and Several Liability |
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Definition
| Each defendant is on the hook for the entire reward and the plaintiff decides how much to recover from who |
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Term
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Definition
| Jury apportions fault among the defendants and defendant pays only his share of the fault |
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Term
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Definition
| When there are two defendants, one of them caused the injury, but you can't tell who, both defendants are deemed negligent unless the defendant can prove otherwisee |
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Term
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Definition
| Plaintiff must join a substantial share of the market. Defendant can escape liability if it can show its products didn’t cause the injury |
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Term
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Definition
| Plaintiff has to show the injury was caused by an entire substandard industry-wide standard. Industry has to be small and virtually all members of the industry must be in the lawsuit. Defendants have to prove they did not personally cause the injury |
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Term
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Definition
| An act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred. |
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Term
| Tests for Proximate Cause |
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Definition
1. Direct Test
2. Foreseeability Test
3. Rough Sense of Justice |
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Term
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Definition
| Consequences which follow in a natural, continuous, unbroken sequence from negligent act are natural and proximate |
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Term
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Definition
| Defendant is responsible for all the consequences of his actions that can be characterized as foreseeable. Natural and probable consequences of the act. The type of harm must be foreseeable. The manner in which the harm occurred does not have to be foreseeable. |
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Term
| "Rough Sense of Justice" Test |
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Definition
| Because of convenience, of public policy, and/or of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. |
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Term
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Definition
| Human (negligent, intentional, criminal, accidental), mechanical, or natural |
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Term
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Definition
| When an act breaks the causal connection between negligent act and injury. Original tortfeasor relieved of liability. |
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Term
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Definition
| Does not break the causal connection |
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Term
| Bettman's Test for Intervening Acts |
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Definition
| Does defendant’s original negligence “set up” or enable the subsequent intervening event? If the answer is YES, then the event is NOT superseding. |
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Term
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Definition
| Allows an injured rescuer to sue the party which caused the danger requiring the rescue in the first place. Tortfeasor has a duty for the safety of a rescuer and the original victim. "Danger invites rescue." |
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Term
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Definition
| Generally, there is no duty to rescue because there is no duty to put yourself in peril. |
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Term
| Criteria for the Rescue Doctrine |
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Definition
- The defendant was negligent to the person rescued
- Such negligence caused the peril or appearance of peril to the person rescued
- The peril or appearance was imminent
- A reasonably prudent person would have concluded such peril or appearance of peril existed
- The rescuer acts with reasonable care in effectuating the rescue (but not the reasonable person standard because it's an emergency)
- Defendant’s negligence was the proximate cause of plaintiff’s injuries |
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Term
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Definition
| Nominal, Compensatory, and Punitive |
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Term
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Definition
| Symbolic award to vindicate something. Rare. (Jury awards $1 or low amount). |
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Term
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Definition
| Restore the plaintiff insofar as their status before they were damaged. (Monetary damages) |
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Term
| Types of Compensatory Damages |
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Definition
| Economic Damages and Non-Economic Damages |
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Term
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Definition
| Anything you can produce an actual bill to show what it costs (besides attorney fees). Medical bills, loss of wages, property damage. |
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Term
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Definition
| Emotional Distress: humiliation, disfigurement, embarrassment, inability to perform, loss of consortium |
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Term
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Definition
| Conduct is so outrageous that it serves almost as a fine to punish the defendant |
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Term
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Definition
| Plaintiff received money from sources other than the tortfeasor to deal with his injuries. Don't subtract. Award the damages and have the plaintiff pay them back. |
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Term
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Definition
| Insurance company has a clause that it will be paid back for any money it paid for injuries if you win a law suit |
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Term
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Definition
| Derivative claim joined with the injured person. The spouse of an injured person has a claim for loss on conjugal relations, society, companionship, household services, etc… |
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Term
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Definition
| A defendant must take a plaintiff as he finds him |
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Term
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Definition
Commercial Liquor Permit Holder - highest duty
Non-Commercial Liquor Permit Holder - intermediate duty
Social Host - lowest duty |
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Term
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Definition
| Courts have refused to go beyond daughters of DES to granddaughters. |
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Term
| Failure to Act, Warn or Protect |
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Definition
There is no common law duty to…
- To control the conduct of another
- To prevent him from causing harm to another
- To warn a person of danger
- To protect somebody from the criminal act of another
EXCEPTION: When there is a special relationship |
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Term
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Definition
Not recoverable. Has to be attached to physical injury or damage to property.
EXCEPTION: Bad advice given from a supplier of information |
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Term
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Definition
| Recoverable with or without physical manifestation of emotional harm. |
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Term
| Tests for Bystanders Liability |
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Definition
"Zone of Danger" Test
Dillon Test
Thing Test |
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Term
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Definition
- Defendant should have realized that this conduct involved an unreasonable risk to the plaintiff
- Plaintiff was present at the scene of an injury producing an event
- Plaintiff was in the zone of danger and placed in a reasonable fear of physical injury to his or her own person |
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Term
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Definition
- Plaintiff and the person injured need to be closely related
- Plaintiff has to be present at the scene of the injury
- Plaintiff personally observed or perceived the event |
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Term
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Definition
- Close relationship
- Observation of scene before material altered
- Defendant was negligent
- Serious injury suffered |
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Term
| Outside the Premises Liability |
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Definition
| No duty upon the landholder to protect persons outside the premises from conditions on the land that arise in the state of nature |
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Term
| On the Premises Categories |
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Definition
| Trespasser, Licensee, Invitee |
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Term
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Definition
| No duty except to refrain from willful or wanton conduct against trespassers |
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Term
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Definition
| Duty to warn the licensee of any hidden dangers that are unknown to guest |
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Term
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Definition
| Duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee. |
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Term
| Attractive Nuisance Doctrine |
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Definition
| When a landowner sets before young children a temptation that he has reason to believe will lead them into danger, he must use ordinary care to protect them from harm |
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Term
| Restatement for Attractive Nuisance |
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Definition
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:
1. Knows or should know that kids are likely to trespass
2. Knows or should know that the condition is one that will cause bodily harm or death
3. The children do not understand or discover the risks associated with the condition
4. The utility of maintaining the condition is not burdensome to the owner; AND
5. The owner fails to exercise reasonable care |
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Term
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Definition
| Firefighters and police officer who are injured may not recover based on the negligent conduct that required their presence |
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Term
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Definition
| Landlord owes the tenant or anyone on the premises with the tenant’s consent a duty to exercise ordinary care - statutory duty |
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Term
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Definition
| If plaintiff has any part of the negligence, he recovers NOTHING. |
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Term
| Types of Comparative Fault |
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Definition
| Pure Form, Modified 50/50, and Modified 49/51 |
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Term
| Pure Form Comparative Fault |
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Definition
| Plaintiff’s damages reduced in proportion to the percentage negligence attributed to him. If the plaintiff is 99% at fault, plaintiff can recover 1% of injuries |
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Term
| 50/50 Modified Form Comparative Fault |
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Definition
| Plaintiff recovers if his negligence was equal to or less than the defendant’s negligence. If equally at fault, plaintiff wins (50% or less). |
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Term
| 49/51 Modified Form Comparative Fault |
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Definition
| Plaintiff recovers if his negligence was less than the defendant’s (49% or less) |
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Term
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Definition
| In case of multiple tortfeasors, plaintiff will be able to recover as long as plaintiff’s negligence is less than the combined negligence of the tortfeasors |
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Term
| Open and Obvious Doctrine |
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Definition
| When the danger is open and obvious, the landowner owes no duty of care to individuals lawfully on the premises |
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Term
| Types of Assumption of Risk |
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Definition
| Express, Implied - Primary, Implied - Secondary |
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Term
| Express Assumption of the Risk |
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Definition
| Clause in a contract and signed the contract releasing defendant from liability for negligence. |
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Term
| (Primary) Implied Assumption of the Risk |
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Definition
| If plaintiff knows, appreciates, and understands the risk of harm and voluntarily subjects to the risk, that is consent to the risk (Limited Duty Doctrine). Arises in Sports |
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Term
| (Secondary) Implied Assumption of the Risk |
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Definition
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Term
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Definition
| Statutory time period within which the plaintiff must file law suit |
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Term
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Definition
| Statute of limitations does not begin to run until the negligent injury is discovered or should have been discovered. |
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Term
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Definition
| Parental-child immunities and spousal immunities |
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Term
| Federal Government Immunities |
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Definition
| Can be sued in limited circumstances |
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Term
| State Government Immunities |
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Definition
| Waived immunity, but it's tough to sue the State |
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Term
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Definition
| Immunity for governmental functions, but not for acting in "corporate capacity" |
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Term
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Definition
| Direct Intent and Substantial Certainty Intent |
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Term
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Definition
| Intended to bring about the consequence |
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Term
| Substantial Certainty Intent |
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Definition
| Did not intend to bring about the consequence but knew with substantial certainty that the consequence would occur |
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Term
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Definition
| When you commit a different tort than intended or against a different person than intended, the intent is transferred to the person you committed the tort against |
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Term
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Definition
| An act by the defendant which brings about harmful or offensive contact to the plaintiff’s person. |
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Term
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Definition
| Intended the contact and contact is harmful and offensive |
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Term
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Definition
| Intended the contact and intended the contact to be harmful and offensive |
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Term
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Definition
| Intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances to create the mind of the party alleging the assault a well-founded fear of imminent battery, coupled with the present ability to effectuate the attempt if not prevented |
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Term
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Definition
| Direct restraint of one person of the physical liberty of another without adequate legal justification |
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Term
| Intentional Infliction of Emotional Distress (IIED) |
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Definition
| Intentionally or recklessly causing severe emotional distress through extreme or outrageous conduct |
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Term
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Definition
| Protects the interest of exclusive possession of land |
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Term
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Definition
| Intentionally using or intermeddling with the property in possession of another. (Property damaged but can still be used - little brother to conversion) |
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Term
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Definition
| Intentional exercise of dominion over property which interferes with the right of the true owner to control it. (- Property is either stolen, received stolen, damaged, or refused to be given back) |
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Term
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Definition
| Entrustment of goods to one person by another |
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Term
| Defenses to Intentional Torts |
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Definition
| Consent to the conduct, Self Defense, Defense of Others, Defense of Property |
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Term
| Self Defense and Defense of Others |
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Definition
| A person may use reasonable force under the circumstances |
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Term
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Definition
| A possessor is privileges to use reasonable force to expel another from his land, to prevent another’s imminent intrusion, or to prevent dispossession. |
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Term
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Definition
| Imposes liability without fault |
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Term
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Definition
| Owner is liable if they are on notice. Notice is created if there has been one bite. |
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Term
| Strict Liability on bites |
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Definition
| Owner or keeper is liable unless dog bits trespasser or someone who was teasing, tormenting, or abusing the dog |
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Term
| Multi-Factor Test for Abnormally Dangerous Activities |
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Definition
| high degree of risk, seriousness of harm, can the risk be eliminated?, common usage, is it an appropriate activity for the location, does it have value to broader society |
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Term
| Limitations on Strict Liability |
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Definition
- Foreseeability – it’s not the harm within the risk
- Acts of God
- In some cases, assumption of the risk... with animals, unreasonable assumption of the risk is a complete defense |
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