Torts
Negligence per se
Instead of the reasonably prudent person standard, proving negligence through violating a law.
Limited duty to act
No duty to act except:
Special relationship
Voluntarily assumption of duty
Innocent prior conduct
Reliance on a gratuitous promise
Intentional prevention of aid by others
Statute
Article 2 of the Uniform of the Commercial Code
Only to sales of goods
Real estate transactions
Does silence constitute acceptance?
Normally no, except:
The parties have a relationship in which the promisee would normally tell the promisor if she does not intend to accept
Offeree accepts the benefit of goods or services and has a chance to reject but did not
Offeree acts toward the property in a manner inconsistent with offeror's ownership of the property
This term from tort law refers to the obligation to exercise reasonable care to avoid foreseeable risks of harm.
What is duty?
Incapacity
No knowledge of occasion for compliance
Inability after reasonable diligence to comply
Emergency
Compliance involves greater risks
Therapists and the duty to warn
D negligently created peril (take reasonable duty)
D voluntarily assumes duty by action or promise (take reasonable action)
Special relationship (mutual dependence or dependent relationship)
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Bilateral contract
If you can accept either by a return promise or by performing
In criminal law, the Latin term actus reus refers to this element of a crime.
What is the voluntary act or physical conduct?
Res ipsa loquitur
circumstantial evidence and means the thing speaks for itself.
Specific harm test
Landowner has no duty unless knew or should have known that the specific harm was occurring or about to occur
Shrinkwrap
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Unilateral contract
If you must accept by performing the whole contract
In Carlill v. Carbolic Smoke Ball Co., the court held that this type of contract can be accepted by performing the requested act.
What is a unilateral contract?
Landowners duty
Invitee: entering land with knowledge for mutual benefit (ex: customer), duty is to use reasonable care to protect from unsafe conditions, know, or should have known about
Licensee: enters and remains on the land with the owner’s consent and for his own convenience or on business with someone other than the owner, duty is to must not injure them willfully, wantonly, or through gross negligence, make safe, or warn them of dangerous condition that is known by the owner (hidden and non-obvious)
Trespasser: entering land with no permission, authority, or invitation. No willfully, wantonly, or gross negligence. Known trespasser has no duty for natural conditions but for dangerous artificial conditions you have a duty to warn or make safe (becomes licensee)
Children: (depends on the court) attractive nuisance doctrine - artificial conditions only (ex: swimming pools) and if it applies then use reasonable care (makes them an invitee), you know that they might be there and children won’t notice the dangerous condition
Joint liability
Two or more independent actors that cause a single harm become jointly and severally liable for all of it
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Preexisting duty rule
That a preexisting legal duty cannot serve as consideration for a contract
According to Tarasoff v. Regents of the University of California, a therapist may have this legal obligation when a patient threatens violence against another person.
What is a duty to warn (or protect)?
Bystander (dillion elements, or foreseeability test)
Foreseeability
Closely related
Contemporaneous sensory problem
The victim has to have substantial injury
Emotional injury must be serious
Physical manifestations (ex: heart palpitations)
Near the scene of the accident
Vicarious liability (respondeat superior)
In addition to the negligent actor, we can hold the employer responsible as well
Negligent conduct of an employee and that the employee did that conduct within the scope of their employment
The mailbox rule
Acceptance of an offer is effective the moment it is dispatched by the offeree, not when the offeror receives it.
5 types of transactions that are covered by statute of frauds
The sale of transfer of an interest in land, ones that cannot be performed within a year, sale of goods, answer for the debt or obligation of another, executors or administrators to answer for the duty of their descendants, and made on consideration of marriage
This economic efficiency test for negligence, expressed as B < (P x L), was introduced in United States v. Carroll Towing Co.
What is the Hand Formula?