DUTY
When does someone have a duty?
when there is a special relationship, the actor created or enhanced the risk of harm, or undertaking
What is the basic rule (foreseeability test)?
D is only liable for foreseeable risks and for not taking precautions
What is the "but for" test?
Competing potential causes; only 1 is because of D's negligence (Stubbs)
What is contributory negligence?
P is completely barred from recovery unless D acted recklessly or D had last clear chance to prevent injury
Pecuniary-direct MKP (cost of health services)
Nonpecuniary- non MKP...compensation for dignitary harm (scar/deformity)
1. invitee: duty to inspect-liable for known and unkown dangers (business visitors/public)
2. licensee: duty to warn of known dangers-no duty to inspect (social guests
3. trespassers: if frequent-duty to warn; if child-reasonable care; if flagrant-no intent; activities-reasonable care; open and obvious danger-reasonable care; recreational use-no willful misconduct
What is the hand rule and what does each thing stand for?
B<P*L
B=burden of adequate precaution
P=probability of harm occurring
L=gravity of resulting injury/severity of harm
What is the substantial factor test?
multiple negligent acts and any one alone would cause injury (Basko; fire)
What is modified contributory negligence?
Negligent P recovers if D is just as negligent (50% rule) or negligent P recovers if D's negligence is greater than P's (51% rule)
What is strict liability?
an actor who carries on abnormally dangerous activity is subject to strict liability for physical harm resulting from activity and activity is abnormally dangerous when the activity creates foreseeable and highly significant risk of harm even when reasonable care is exercised and the activity is not one of common usage
What is the rule for chattel?
One who supplies directly or thru a 3rd person a chattel for use and supplier knows that the user is incompetent or negligent then they are subject to liability (aunt giving nephew car case)
What is the difference between custom and statutes?
Custom does NOT set standard of care but deviance CAN be evidence of negligence and complaince with custom CAN be evidence of due care (sword/shield)
Violation of statutes is negligence but if following statute causes more harm then it is okay (Tedla)
What is the alternative causes test?
uncertain as to which one caused the injury to burden shifts to D (Summers)
What is pure comparative negligence?
Negligent P can recover some damages regardless of their degree of fault (13 jdx including FL)
In med mal what is custom set by and what is the patient and physician rule?
Custom is set by doctors.
patient rule: physican is required to describe material risks inherent in course of treatment
physician rule: required to disclose risks that a reasonable physician would disclose under similar circumstances
What are the foreseeable criminal acts approaches?
1. specific harm rule: LL has no duty unless aware of harm
2. prior similar incidents: based on previous crimes nearby
3. totality of cirumstances: relevant facts bearing on foreseeability
4. balancing test: foreseeability and costs of precautions (Posecai)
What is the majority rule for res ipsa loquitur? And what are the 3 conditions under Ybarra?
RULE: D is negligent when the accident is of the type that ordinarily happens as a result of D's negligence-permissible inference of negligence
-P has to show that instrumentality was under exlusive control of D and accident would not have occurred without negligence (McDougald)
CONDITIONS: 1. accident is type that would not occur without negligence; 2. caused by an agency within exclusive control of D; 3. must not have been due to any voluntary action from P (Ybarra)
What does eggshell plaintiff mean?
take P as they are (Benn)
What is express assumption of risk?
P gives real consent to release party from obligation of reasonable care (Hanks)
When is there duty to warn in products liability?
Adequacy: scope of danger, extent or seriousness of harm, physical aspects alert reasonably prudent person, means to convey
What are the bystander tests?
1. impact test (abandoned)
2. zone of danger (MAJORITY): P was in zone of threat of physical injury (Falzone)
3. foreseeability test: recovery allowed that could reasonably befall an ordinarily sensitve person (Gammon)
4. bystander test: D's negligence is the cause and P was there and witnessed everything and had a special relationship with the victim (Portee)
What is vicarioius liability and the birkner test?
Vicarious liability means employers are vicariously liable for torts committed by their employees when they act within the scope of employment. (Christensen)
Birkner test: employee conduct must be of the type that employee is hired to do; conduct occurrs within within hours and spatial boundaries of employment; conduct is motivated by serving the employer's interest
What are directness test, foresight test, and harm within risk test?
Foresight test: D liable for reasonably foreseeable consequences (Wagon Mound)
Harm within risk test: liability is limited to harms that result from risks that made the actor's conduct tortious
What is implied assumption of risk? Primary and secondary?
Primary-P engages in risky activity and implicitly assumes risk (Murphy)
Secondary-P knowingly encounters risk created by D's negligence (Davenport)
In products liability what is the difference between a manufacturing defect and a design defect?
Manufacturing defect: product departs from the intended design (impose strict liability)
Design defect: defective when foreseeable risks could have been reduced or avoided with a reasonable alternative design (RAD) and omission of RAD renders product not reasonably safe (impose negligence); defective in design if product failed to perform as safely as ordinary consumer would expect (consumer expectation test); defective in design if risk of danger inherent in challenged design outweighs benefits of such design (risk/benefit test-Barker)