Duty
Breach
Proximate Cause
Factual Cause
Injury
Defenses
Premise Liability
Vicarious Liability
100
What is the standard of care for duty
what a reasonably prudent person would have done under the same or similar circumstances
100
Hand Formula
A risk is unreasonable when the
(probability [likelihood] of injury) x (gravity of harm [severity]) > burden [cost] to D of alternative conduct that would have prevented the harm
100
Proximate cause can be grouped into what two categories?
Reasonable foreseeability
Intervening and Superseding Causes
100
What is the test for proving factual causation?
"But for" Test
100
Generally, absent personal injury or property damage, a P may not recover for . . .
pure economic loss
100
With contributory negligence, what happens if P's negligent conduct is also a factual and proximate cause of P's own injuries?
P is barred from recovering
100
What is the duty of a landowner for off-premise risks?
Owe a duty to take reasonable precautions to prevent unreasonable risks of harm to off-premises Ps caused by "artificial conditions" on premises
100
When are employers vicariously liable for the torts of their employees?
When the torts committed by the employees are committed within the scope of their employment
200
How are customs used in regards to the standard of care
customary conduct of the community, industry, profession, or other relevant group in similar circumstances is relevant but not conclusive
200
What is constructive notice and who bears the burden of proving it?
A defective condition existed long enough for a reasonable person exercising ordinary care to have discovered it
Plaintiff bears the burden to introduce sufficient circumstantial evidence
200
What is the Foreseeable Plaintiff Test?
D owes the duty of care only to those within the zone of danger created by their negligent conduct who suffer foreseeable harm as a result
200
Loss of Chance Doctrine
Where P's chance of survival at the time of the delayed care or misdiagnosis, P may recover in proportion to % loss in chance of recovery resulting from the delayed diagnosis
200
For negligent infliction of emotional distress, emotional damages are deemed to be what?
Parasitic upon physical injury
200
With the last clear chance doctrine, even if P is contributorily negligent P can still recover if what?
D had the last meaningful opportunity to prevent the harm
200
When does a landowner owe a duty to a trespasser?
Where dangerous condition or instrumentality exists on the premises occupier may owe a duty to warn of the danger or take additional precautions when:
landowner has actual / constructive notice of use by trespassers; OR
landowner discovers at-risk trespasser's presence at which point occupier must THEN act with reasonable care to avert injury within their control
200
Frolic vs. Detour
Frolic = If, when on the clock, an employee had substantially deviated from scope of employment when the tort was committed
Detour = A slight deviation, employer still liable
300
What is the reasonably prudent professional standard of care?
Must act with the skill and learning ordinarily possessed by members of their profession in good standing
300
When would a plaintiff use Res Ipsa Loquitur?
Applies where there is no direct / insufficient circumstantial evidence of D's conduct
300
Assuming initial physical injury, D is liable for . . .
all its consequences - foreseeable or not - even if ordinary P wouldn't have suffered to the same extent or severity.
300
When separate acts of negligence both are substantial factors in producing a single indivisible injury, what results?
Each tortfeasor is liable for the full amount even though neither act alone would have caused the injury
300
What are the justifications courts use for limitations on pure economic loss?
Threatens limitless liability
Liability can be out of proportion to a D's wrongdoing
Over-deter potentially beneficial activities
300
Implied Assumption of Risk
P is barred from recovery if D pleads / proves:
P had actual knowledge of risk / danger that caused P's injury;
P appreciated magnitude of risk / danger; AND
P voluntarily encountered risk / danger anyway.
300
What is a licensee and what is the duty owed to them?
A person that a landowner permits to be on the premises for non-business purposes
Owe a duty to warn of known danger - no duty to inspect for hidden danger and/or fix known danger
300
What is the 6 factor foreseeability test for scope of employment
1. employee's intent or purpose in making deviation;
2. nature, time place of deviation;
3. time consumed by deviation;
4. type of work for which employee was hired;
5. reasonably expected by employer for the type of work;
6. degree of freedom / discretion employer affords to employee
400
The standard of care can be replaced with negligence per se, when the actor charged with negligence per se violates a statute, regulation, or ordinance, and . . .
the statute, rule, or ordinance was intended to protect against the type of injury / harm the victim suffered;
the victim is a member of the class of persons the statute, rule, or ordinance was intended to protect; AND
the actor charged with negligence per se has no legally recognized excuse for the violation.
400
What is the rule for Res Ipsa Loquitur?
P shows instrumentality was in D's exclusive control (it is more likely than not D's negligence rather than P or third party's conduct caused P's injury); AND
Accident injuring P would not ordinarily occur without D's negligence
400
Intervening vs. Superseding Cause
Intervening Cause - one that arises in between D's negligent conduct and the injury to P and is foreseeable
Superseding Cause - D could not reasonably foresee it and it negates proximate cause
400
When 2 causes combine to cause injury and either alone would have independently caused the injury, what results?
Both sources are liable as long as each was a substantial factor in causing the damage
400
When can a P recover for negligent infliction of emotional distress?
The D had put P in the zone of danger AND
P later suffers definite and objective physical manifestations as a result of emotional distress caused by D's negligent conduct
400
Express Assumption of Risk
P voluntarily assumed the risk by written release, such that:
injury to P falls within the scope of unambiguous terms of the release; AND
release is not void as against public policy.
400
What is an invitee and what is the duty owed to them?
Person invited by landowner onto premises to conduct business with them or a member of public impliedly invited onto premises held open to the public
Owe a duty of reasonable inspection for dangers and to undertake reasonable efforts to fix dangerous conditions on the premises
400
Factors in considering whether employee or independent contractor =
Extent of control which employer is authorized to exercise over the details of actor's work;
Who supplies tools, other equipment, and place of work;
Whether actor is paid on time basis or per task completed;
The length of time for which actor is hired to perform;
Whether the actor is engaged in a specialized occupation or business
500
Tort law does not usually recognize a duty to affirmatively act to prevent, protect, aid, or warn a plaintiff who suffers harm/injury caused by a third party. What are the exceptions?
special relationship to plaintiff or a third party perpetrator
D's non-negligent conduct causes / increases risk of danger or injury to P
special knowledge + relationship with third party perpetrator
D assumes duty
500
When is Res Ipsa Loquitur generally applicable in medical malpractice cases?
When an object is left unintentionally inside the patient during operation
500
Generally, what type of cause is an intentional criminal act of a third party?
Superseding
500
Where 2 (or more) Ds acted negligently, but only one caused P's injury and P cannot prove who caused the injury, what results?
The burden of proof on the issue of causation shift to Ds
500
Bystander Liability for negligent infliction of emotional distress
P can recover but only if:
P is a close relative of third party;
P is present at the scene of injury and contemporaneously perceives it;
P suffers severe emotional distress; and
D's conduct was the proximate cause of P's severe emotional distress.
500
Statute of Limitations as a defense
D is relieved from liability if they plead / prove the P filed suit after the expiration of the statute of limitation applicable to the P's cause of action
500
Status of an invitee may change if . . .
they exceed the scope of their business purpose on the premises
500
When is an employer vicariously liable for an independent contractor's torts?
Peculiar risk of injury / damage to others;
Abnormally dangerous activity;
Employer land-possessor's independent contractor negligently repairs and after (not during) repair invitee injured.
600
What is the child standard of care for negligence and how can that change?
a reasonably prudent child of the same age, intelligence, and experience
can change if the child is engaged in an inherently dangerous activity that is typically undertaken by adults - the standard of care is that of an adult engaging in the same type of activity
600
When is expert testimony required to establish a proof of breach?
When an ordinary layperson would not otherwise know the ordinary standard of care in a particular field
600
What are the elements of the rescue doctrine?
1. D was negligent to person being rescued (P1) and that negligence caused peril to the rescuer (P2);
2. The peril to P1 appeared imminent;
3. A reasonably prudent person would conclude the peril to P1 existed; AND
4. The rescuer (P2) used reasonable care in effectuating the rescue of P1.
600
Where P is unable to prove which manufacturer caused P's injury, but P joins Ds representing a substantial share of the market, what results?
The burden shifts to each D to prove it did not make the product that caused P's injury
600
I don't have another injury question
600
What is the Discovery Doctrine
Medical malpractice doctrine = clock starts ticking when injured plaintiff knew or reasonably should have known of injury
600
If scope exceeded with consent = _________
If scope exceeded without consent = _________
Licensee
Trespasser
600
Going-and-coming rule
Going and coming to work NOT within scope of employment unless increased risk of employment