TORTS 101
What are the four elements of negligence?
Duty, breach, causation, and damages.
What is the general rule regarding a person's duty to rescue a stranger?
There is generally no affirmative duty to rescue a stranger absent an applicable exception.
What standard is generally used to determine whether a defendant breached a duty of care?
The reasonable person under the circumstances standard.
What is the difference between actual notice and constructive notice?
Actual notice means the defendant knew of the danger; constructive notice means the defendant reasonably should have discovered it.
Under the traditional but-for test, what question determines actual causation?
Would the plaintiff have suffered the injury but for the defendant's negligent conduct?
What is the difference between negligence and strict liability?
Negligence requires proof of fault; strict liability generally does not.
What is the difference between misfeasance and nonfeasance?
Misfeasance involves conduct creating or increasing a risk of harm; nonfeasance is a failure to act to prevent a risk one did not create.
Under the Hand formula, what does B < P × L indicate?
The burden of precaution is less than the probability of harm multiplied by the magnitude of loss; failing to take the precaution may constitute negligence.
What Latin doctrine means 'the thing speaks for itself'?
Res ipsa loquitur.
A driver speeds through a neighborhood, but a pedestrian suddenly steps in front of the car so close that even a driver obeying the speed limit could not have avoided the collision. What element is likely missing?
Actual causation: the speeding did not cause the collision if it would have occurred even without the speeding.
Under respondeat superior, when can an employer be held vicariously liable?
When an employee commits a tort within the scope of employment.
Name two special relationships that may create an affirmative duty to protect or assist another person.
Examples include common carrier–passenger, innkeeper–guest, and qualifying custodial relationships.
A 12-year-old negligently drives a car. Is the child ordinarily held to a child's standard or an adult's standard?
The adult reasonable person standard, because driving is an adult activity.
A barrel falls from a warehouse window onto a pedestrian, and nobody knows exactly how it fell. Which case illustrates how negligence may be inferred?
Byrne v. Boadle.
Two negligently started fires merge and destroy a barn. Experts agree either fire alone would have destroyed it. What causation doctrine applies?
The multiple sufficient causes doctrine (discussed in the slides using the substantial factor approach). Each fire may be treated as a factual cause.
Under the Birkner test discussed in Christensen v. Swenson, what three factors help determine whether an employee acted within the scope of employment?
Whether the conduct was generally within the employee's assigned duties, occurred within work-related time and space, and was motivated at least partly by serving the employer.
A person enters a property without permission, another enters with permission for their own benefit, and a third enters as a customer. What are the three legal classifications of these entrants?
Trespasser, licensee, and invitee.
Bonus: Which category is generally owed the highest duty of care?
Under Trimarco v. Klein, is compliance with industry custom conclusive proof of reasonable care?
No. Industry custom is relevant evidence of reasonable care, but it is not controlling.
Under traditional res ipsa loquitur, identify the three requirements
The accident ordinarily does not occur without negligence; the instrumentality was in the defendant's exclusive control; and the plaintiff did not voluntarily cause or contribute to the accident.
Two hunters negligently shoot toward the plaintiff, but only one bullet strikes the plaintiff and the shooter cannot be identified. What doctrine and case apply?
Alternative liability under Summers v. Tice, shifting the burden to the negligent defendants to show they did not cause the injury.
A hospital presents an independent-contractor radiologist as one of its doctors, and a patient reasonably relies on that representation when accepting treatment. What doctrine could make the hospital vicariously liable?
Apparent authority (apparent agency), as discussed in Roessler v. Novak.
A therapist learns that a patient has made a credible, specific threat against an identifiable individual. Under Tarasoff, what duty may arise?
A duty to take reasonable steps to protect or warn the foreseeable victim, arising from the therapist-patient special relationship.
A person violates a safety statute designed to protect pedestrians from collisions, causing precisely that type of injury. What doctrine may establish breach, assuming no valid excuse?
Negligence per se, provided the plaintiff is in the statute's protected class and suffered the type of harm the statute was intended to prevent.
A patient wakes up from surgery with an unexplained injury unrelated to the operation, but cannot identify which medical professional caused it. Which case relaxes the exclusive-control requirement?
Ybarra v. Spangard, allowing res ipsa to apply to multiple medical defendants who had control over the patient or possible injury-causing instrumentalities.
A plaintiff develops an injury from a generic drug taken decades earlier, but cannot identify which negligent manufacturer made the pills. What doctrine may allow recovery based on market participation?
Market share liability, as discussed in Hymowitz v. Eli Lilly & Co.