Shared Flashcard Set

Details

Torts
University of Cincinnati College of Law - Professor Bettman's Torts Class
134
Law
Graduate
12/06/2012

Additional Law Flashcards

 


 

Cards

Term
Tort
Definition
An injury to your person, reputation, or your property
Term
Motion to Dismiss
Definition
A motion to dismiss the case from court because the case has no merit. Usually made by the defendant.
Term
Motion for Summary Judgment
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.
Term
Motion for Directed Verdict
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.
Term
Motion for a Judgment Not Withstanding the Verdict
Definition
Judge overrules the jury’s decision and orders new trial. Very rare. Made by losing party. Made after verdict.
Term
Elements of Negligence
Definition
Duty, Breach, Causation, Damage
Term
Duty
Definition
A duty to use reasonable care
Term
Breach
Definition
A failure to conform to the required standard
Term
Causation
Definition
A reasonably close causal connection between the conduct and the resulting injury
Term
Damage
Definition
Actual loss or damage resulting to the interests of another
Term
The "Reasonable Person" Standard of Care
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.
Term
Sudden Emergency Doctrine
Definition
What a reasonable person would do in that emergency
Term
Blackouts and Physical Illness Standard of Care
Definition
Reasonable person must use the care commensurate with the known or reasonably known foreseeable danger
Term
Sudden Medical Emergency
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
Term
Physical Disabilities Standard of Care
Definition
person with disability must take cautions, be they more or less, which the ordinary reasonable person would if he was so disabled
Term
Mental Illness Standard of Care
Definition
Insane adults and others suffering mental disability are liable both for intentional and negligent torts. The same is true who is voluntarily intoxicated.
Term
Children Standard of Care
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
Term
Rule of Sevens
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
Term
The Professional Standard of Care
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)
Term
Medical Malpractice
Definition
Negligence of a licensed medical professional
Term
Lack of Informed Consent
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
Term
Objective vs. Subjective Reasonable Patient
Definition
Subjective – “I would have chosen a different course of treatment”

Objective – “The reasonable person would have chosen a different course of treatment”
Term
Defenses to Informed Consent
Definition
Emergency, reasonable person would know the risks, patient already knew the risks, full disclosure would be detrimental to a patient's total care
Term
Respondeat Superior
Definition
If an employee commits a tort in the scope of their employment, their employer may be held liable.
Term
Frolic
Definition
Outside the scope of employment
Term
Detour
Definition
Inside the scope of employment
Term
Determinants of Scope of Employment
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
Term
Burden of Production
Definition
Producing the evidence legally sufficient to make the case
Term
Burden of Persuasion
Definition
Does the jury "buy" the evidence. Most prove by the preponderance of evidence 51%.
Term
Negligence Per Se
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.
Term
Public Policy Doctrine
Definition
A duty to all is a duty to none.
Term
Custom and Usage
Definition
Useful to help set the standard of care but not a conclusive test. Jury must be satisfied. Entire industry custom can be substandard.
Term
Two types of Evidence
Definition
Direct and Circumstantial
Term
Direct Evidence
Definition
Doesn't require any inference to be drawn from the fact. Either personally observed or expert testimony
Term
Circumstantial Evidence
Definition
Requires one step past personal knowledge. Requires an inference from it.
Term
Categories for Slip and Fall cases
Definition
1. Smooth or slippery surface
2. Foreign Substance
3. Tracked in Water
4. Defective Surface
Term
Smooth or Slippery Surface
Definition
Store is only liable if the floor has been waxed or dressed improperly
Term
Foreign Substance
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
Term
Tracked in Water
Definition
Owner’s liability can only be established if the water is a significant distance from the door
Term
Defective Surface
Definition
Only liable for holes or defects in areas traveled by customers and they have to create an unreasonable risk of harm
Term
Slip and Fall Cases - Traditional Approach
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
Term
Mode of Operation
Definition
Nature of defendant’s business gives rise to a substantial risk of injury to customers from slip and fall accidents.
Term
Res Ipsa Loquitor
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.
Term
Cause in Fact
Definition
The defendant MORE LIKELY THAN NOT caused the plaintiff's injuries
Term
Tests for Cause in Fact
Definition
One Tortfeasor = But-For Test
Joint Tortfeasors = Substantial Factors Test
Term
But-For Test
Definition
But for the occurrence, the result would not have happened
Term
Joint Tortfeasors
Definition
Two or more people who act in concert to commit a tort or act separately to commit the same tort.
Term
Substantial Factors Test
Definition
Was the defendant’s conduct a substantial factor of plaintiff’s injuries?
Term
Concurrent Tortfeasors
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
Term
Joint and Several Liability
Definition
Each defendant is on the hook for the entire reward and the plaintiff decides how much to recover from who
Term
Several Liability
Definition
Jury apportions fault among the defendants and defendant pays only his share of the fault
Term
Alternative Liability
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
Term
Market-Share Liability
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
Term
Enterprise Liability
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
Term
Proximate Cause
Definition
An act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred.
Term
Tests for Proximate Cause
Definition
1. Direct Test
2. Foreseeability Test
3. Rough Sense of Justice
Term
Direct Test
Definition
Consequences which follow in a natural, continuous, unbroken sequence from negligent act are natural and proximate
Term
Foreseeability Test
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.
Term
"Rough Sense of Justice" Test
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.
Term
Intervening Acts
Definition
Human (negligent, intentional, criminal, accidental), mechanical, or natural
Term
Superseding Cause
Definition
When an act breaks the causal connection between negligent act and injury. Original tortfeasor relieved of liability.
Term
Intervening Only
Definition
Does not break the causal connection
Term
Bettman's Test for Intervening Acts
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.
Term
Rescue Doctrine
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."
Term
Duty to Rescue
Definition
Generally, there is no duty to rescue because there is no duty to put yourself in peril.
Term
Criteria for the Rescue Doctrine
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
Term
Types of Damages
Definition
Nominal, Compensatory, and Punitive
Term
Nominal Damages
Definition
Symbolic award to vindicate something. Rare. (Jury awards $1 or low amount).
Term
Compensatory Damages
Definition
Restore the plaintiff insofar as their status before they were damaged. (Monetary damages)
Term
Types of Compensatory Damages
Definition
Economic Damages and Non-Economic Damages
Term
Economic Damages
Definition
Anything you can produce an actual bill to show what it costs (besides attorney fees). Medical bills, loss of wages, property damage.
Term
Non-Economic Damages
Definition
Emotional Distress: humiliation, disfigurement, embarrassment, inability to perform, loss of consortium
Term
Punitive Damages
Definition
Conduct is so outrageous that it serves almost as a fine to punish the defendant
Term
Collateral Source Rule
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.
Term
Subrogation
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
Term
Loss of consortium
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…
Term
Eggshell Skull Rule
Definition
A defendant must take a plaintiff as he finds him
Term
Alcohol Limited Duties
Definition
Commercial Liquor Permit Holder - highest duty
Non-Commercial Liquor Permit Holder - intermediate duty
Social Host - lowest duty
Term
DES Limited Duties
Definition
Courts have refused to go beyond daughters of DES to granddaughters.
Term
Failure to Act, Warn or Protect
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
Term
Pure Economic Loss
Definition
Not recoverable. Has to be attached to physical injury or damage to property.

EXCEPTION: Bad advice given from a supplier of information
Term
Pure Emotional Harm
Definition
Recoverable with or without physical manifestation of emotional harm.
Term
Tests for Bystanders Liability
Definition
"Zone of Danger" Test
Dillon Test
Thing Test
Term
"Zone of Danger" Test
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
Term
Dillon Test
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
Term
Thing Test
Definition
- Close relationship
- Observation of scene before material altered
- Defendant was negligent
- Serious injury suffered
Term
Outside the Premises Liability
Definition
No duty upon the landholder to protect persons outside the premises from conditions on the land that arise in the state of nature
Term
On the Premises Categories
Definition
Trespasser, Licensee, Invitee
Term
Duty to Trespassers
Definition
No duty except to refrain from willful or wanton conduct against trespassers
Term
Duty to Licensees
Definition
Duty to warn the licensee of any hidden dangers that are unknown to guest
Term
Duty to Invitees
Definition
Duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee.
Term
Attractive Nuisance Doctrine
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
Term
Restatement for Attractive Nuisance
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
Term
Firefighter's Rule
Definition
Firefighters and police officer who are injured may not recover based on the negligent conduct that required their presence
Term
Lessor/Lessee Duties
Definition
Landlord owes the tenant or anyone on the premises with the tenant’s consent a duty to exercise ordinary care - statutory duty
Term
Contributory Negligence
Definition
If plaintiff has any part of the negligence, he recovers NOTHING.
Term
Types of Comparative Fault
Definition
Pure Form, Modified 50/50, and Modified 49/51
Term
Pure Form Comparative Fault
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
Term
50/50 Modified Form Comparative Fault
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).
Term
49/51 Modified Form Comparative Fault
Definition
Plaintiff recovers if his negligence was less than the defendant’s (49% or less)
Term
Unit Rule
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
Term
Open and Obvious Doctrine
Definition
When the danger is open and obvious, the landowner owes no duty of care to individuals lawfully on the premises
Term
Types of Assumption of Risk
Definition
Express, Implied - Primary, Implied - Secondary
Term
Express Assumption of the Risk
Definition
Clause in a contract and signed the contract releasing defendant from liability for negligence.
Term
(Primary) Implied Assumption of the Risk
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
Term
(Secondary) Implied Assumption of the Risk
Definition
Now comparative fault
Term
Statute of Limitations
Definition
Statutory time period within which the plaintiff must file law suit
Term
Discovery Doctrine
Definition
Statute of limitations does not begin to run until the negligent injury is discovered or should have been discovered.
Term
Family Immunities
Definition
Parental-child immunities and spousal immunities
Term
Federal Government Immunities
Definition
Can be sued in limited circumstances
Term
State Government Immunities
Definition
Waived immunity, but it's tough to sue the State
Term
City Immunities
Definition
Immunity for governmental functions, but not for acting in "corporate capacity"
Term
Types of Intent
Definition
Direct Intent and Substantial Certainty Intent
Term
Direct Intent
Definition
Intended to bring about the consequence
Term
Substantial Certainty Intent
Definition
Did not intend to bring about the consequence but knew with substantial certainty that the consequence would occur
Term
Transferred Intent
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
Term
Battery
Definition
An act by the defendant which brings about harmful or offensive contact to the plaintiff’s person.
Term
Single Intent Battery
Definition
Intended the contact and contact is harmful and offensive
Term
Dual Intent Battery
Definition
Intended the contact and intended the contact to be harmful and offensive
Term
Assault
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
Term
False Imprisonment
Definition
Direct restraint of one person of the physical liberty of another without adequate legal justification
Term
Intentional Infliction of Emotional Distress (IIED)
Definition
Intentionally or recklessly causing severe emotional distress through extreme or outrageous conduct
Term
Trespass to Land
Definition
Protects the interest of exclusive possession of land
Term
Trespass to Chattels
Definition
Intentionally using or intermeddling with the property in possession of another. (Property damaged but can still be used - little brother to conversion)
Term
Conversion
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)
Term
Bailment
Definition
Entrustment of goods to one person by another
Term
Defenses to Intentional Torts
Definition
Consent to the conduct, Self Defense, Defense of Others, Defense of Property
Term
Self Defense and Defense of Others
Definition
A person may use reasonable force under the circumstances
Term
Defense of Property
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.
Term
Strict Liability
Definition
Imposes liability without fault
Term
One Bite Rule
Definition
Owner is liable if they are on notice. Notice is created if there has been one bite.
Term
Strict Liability on bites
Definition
Owner or keeper is liable unless dog bits trespasser or someone who was teasing, tormenting, or abusing the dog
Term
Multi-Factor Test for Abnormally Dangerous Activities
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
Term
Limitations on Strict Liability
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
Supporting users have an ad free experience!