Torts Negligence Review

What is the rule for injury?

The plaintiff must suffer a legally cognizable injury such as physical harm, economic loss, and/or emotional distress.

What are the three types of injury?

Economic loss, physical harm, emotional distress

What are the two types of physical harm in injury?

Bodily harm and property damage

What is the rule for general duty?

A person owes a duty of reasonable care to foreseeable plaintiffs to avoid acting with carelessness.

What is the rule for Cardozo’s “zone of danger?”

A defendant only owes a duty of reasonable care to a plaintiff if that plaintiff was in the foreseeable "zone of danger" created by the negligent conduct.

What is the Andrew’s “zone of danger?”

There’s a duty owed to all regardless of foreseeability; duty owed to expected and unexpected plaintiffs.

What is the rule for no-duty rule?

No general duty owed to unforeseeable plaintiffs.

What is the rule for rescue doctrine?

Generally, when a plaintiff needs assistance, the defendant does not owe a duty to protect or rescue the plaintiff unless the defendant placed the plaintiff at risk of harm, defendant volunteers or warns plaintiff, or if there is a special relationship between the defendant and plaintiff.

What is the rule for premises liability?

Premises liability applies when injury occurs on plaintiff’s property. The standard care of duty owed depends on the plaintiff's legal status at the exact time and location of injury.

(Here, the plaintiff was a licensee because … The standard care of duty owed to licensee is … )

What is the rule for duty owed to third persons?

Generally, there is no duty to control a dangerous third person or warn a potential victim, unless the defendant has a special relationship with the dangerous person or foreseeable victim.

Who’s an invitee?

An invitee is a someone invited onto the premises for material benefit of property owner.

What’s the rule for the duty owed to an invitee?

The duty owed to an invitee is to keep premises reasonably safe ordinary use and warn when hidden danger or peril not in plain sight.

Who’s a licensee?

A licensee is someone invited onto the premises by owner.

What’s the rule for the duty of care owed to licensees?

The duty owed to licensees is to warn of non-obvious danger.

Who’s a trespasser?

A trespasser is someone who goes onto another’s premises uninvited.

What’s the general rule for the duty owed to trespassers?

There is generally no duty owed to adult/children trespassers except to not willfully or deliberately harm them.

What is the exception for certain child trespassers under premises liability?

Attractive nuisance

What’s the rule for attractive nuisance?

Under the attractive nuisance doctrine, the property owner must treat the child like an invited guest.

What are the elements of attractive nuisance?

1. (C)hild unable to appreciate risk of injury due to young age

2. (L)ocated at a place children were likely to trespass (foreseeable that child will trespass)

3. (U)nreasonable risk of harm imposed on kids by the danger on the property

4. (M)anmade/artificial danger on land

5. (F)oreseeable injury was caused to child  

6. (F)ailed to exercise reasonable care to protect trespassing trespassing 

What’s the rule for Res Ipsa Loquitor?

Res Ipsa is a tool used to establish breach where each of the following elements must be true: (1) the injury wouldn’t have happened unless someone was careless, (2) the instrumentality causing the injury must have been in the defendant’s exclusive control, (3) and the plaintiff could not have had anything to do with the injury.

What’s the rule for negligence per se?

Negligence per se is a tool used to establish breach where the plaintiff must prove that (1) there’s a statute that exists, (2) there’s a violation of statute, (3) plaintiff is within the class of people that the statute was designed to protect, and (4) plaintiff’s injury is within the type if injuries that the statute was designed to prevent.

What’s the rule for T.J. Hooper/Industry Custom?

The T.J. Hooper rule states the industry custom alone does not establish that the defendant acted with the requisite duty of care even if the defendant has acted with care that is customary for people in the industry. (Custom does not determine standard of care)

What’s the rule for Anti-T.J. Hooper/Professional Custom Rule?

The Anti-T.J. Hooper rule states there is no breach, as a matter of law, if the defendant acted with care that is consistent with that of other qualified members of the profession. (Custom does determine the standard of care; medical and legal professions only)

What’s the rule for the Hand Formula?

The Hand Formula states a duty has been breached by the defendant if the burden of adequate precaution is less than the probability and the severity of injury.

Under the hand formula, what’s does the ‘B’ mean?

Burden of taking adequate precautions

Under the hand formula, what’s does the ‘L’ mean?

Severity of loss

Under the hand formula, what’s does the ‘P’ mean?

Probability harm would occur

What’s the majority rule for RSP when concerning children?

Mass. Rule, the majority rule, states that children are held to the standard of other children of similar age, intelligence, and experience to determine breach.

What’s the minority rule for RSP when concerning children?

Tender Years Doctrine, the minority rule, states a child under seven is incapable of negligence.

What’s the exception to the Mass. Rule?

The adult activities doctrine states that when a child engages in inherently dangerous activities or activities generally reserved for adults is held to the standard of a reasonably prudent adult.

What’s the rule for reasonable person standard (adults)?

RSP is the general objective standard used to determine breach by comparing their conduct to what a reasonably prudent person would have done under similar circumstances.

What’s the rule for heightened duty?

The heightened duty of care states that a professional is required to be more cautious than the ordinary prudent person.

What’s the general rule for breach?

A breach occurs when the defendant fails to act according to the applicable/requisite standard of care.

What’s the general rule for causation?

The rule for causation states there must be reasonable connection demonstrating that the defendant’s breach was an actual and proximate cause of the injury suffered by plaintiff.

What’s the rule for but-for test?

The but-for test states the plaintiff’s injury would not have occurred but-for the defendant’s negligent act.

What’s the burden of proof?

It states the plaintiff must prove by preponderance of evidence (more likely than not) that the defendant’s conduct was an actual cause of injury.

What’s the rule for multiple necessary causes?

It states that two or more careless acts together were necessary to cause plaintiff’s injury. (But-for A and B, the injury would not have happened)

What’s the rule for multiple sufficient causes?

It states that two or more careless acts alone would be sufficient to cause plaintiff’s injury.

What’s the rule for the exception to multiple sufficient causes?

Preempted cause states that if one of these independently sufficient causes brings about the injury before the other, then the 2nd is typically deemed a “preempted cause” and no liability us attached. (one act causes greater damage relieving the other person of liability.)

What’s the rule for the substantial factors test?

It states that if proven that your negligent act could have substantially caused this injury then you are one cause of the injury; each independent cause and actor is liable.

Under proximate cause, plaintiff’s injury must pass both ___ ___ and the __ ____ ___ ___ ___

foreseeability test; the scope of risk test

What’s the rule for proximate cause?

To establish proximate cause, assess whether the breach of duty was what led to the plaintiff’s injuries; it must satisfy both foreseeability and scope of risk.

What’s the rule for the foreseeability test?

It asks whether the plaintiff’s injury suffered was reasonably foreseeable to the defendant at the time the they acted carelessly.

What’s the rule for the scope of risk test?

It asks whether the plaintiff’s injury was within the types of injuries expected to result from the careless conduct that occurred.

What’s the rule for intervening act?

It is when a third party’s conduct comes after the defendant’s act in the chain of events leading to the plaintiff’s injury. (harm was foreseeable)

What’s the rule for superseding cause?

It shields the initial tortfeasor from liability even through their initial negligent act was a necessary cause of the plaintiff’s injury. (unforeseeable harm; act is usually further from what’s considered negligence ie. assault)

When is superseding cause applicable?

applicable when (1) two tortfeasors act independently of one another and (2) the initial tortfeasor’s wrongful act is more remote in time and space from the plaintiff’s injury and the subsequent wrongful act involves a relatively direct or immediate infliction of injury

What’s the test for superseding act?

1. Is there an intervening act/was there a new intervening act that contributes to plaintiff’s harm?

2. If intervening act posed foreseeable harm, then it IS NOT superseding and defendant can still be liable

3. If the intervening act posed unforeseeable harm, then it IS superseding and defendant is not liable

What’s the rule for contributory negligence?

An absolute defense in DC, MD, VA, NC, and AL that states a defendant is relieved of liability if the plaintiff is even 1% at fault.

What’s the exception for contributory negligence?

last clear chance doctrine

What’s the rule for last clear chance doctrine?

It states the plaintiff may recover if defendant had the last opportunity to avoid harm and didn’t.

What are two exceptions of last clear chance doctrine?

rescue doctrine and reckless/intentional conduct

What are the two types of comparative fault?

pure and modified

What’s the rule for pure comparative fault?

Pure comparative fault reduces the amount that a plaintiff can recover based on degree of fault. Plaintiff can recover no matter how negligent they are. (Minority)

What’s the rule for modified comparative fault?

Modified comparative barres plaintiff from recovery if they are more than a certain percentage negligent (usually 50% but varies by state).

What are the two types of assumption of risk?

express and implied

What’s the rule for implied assumption of risk?

The defense is not a complete bar to recovery; it requires the D to prove the P knew of the risk, appreciated its character/risk, and voluntarily chose to accept it. (factored into comparative fault)

What’s the rule for express assumption of risk?

It is a complete bar to recovery; requires proof by the D that P, prior to being injured by the D’s negligence, waived their right to sue for injuries caused by negligence (signature)

What are the elements that make an exculpatory agreement valid?

existence of duty to public, nature of service performed, whether the contract was fairly entered into, and whether the intention of the parties is expressed in clear and unambiguous language

What are the three exceptions that make an exculpatory clause enforceable?

1. When the party protected by the clause intentionally causes harm or engaged in acts of reckless, wanton, or gross negligence

2. When the bargaining power of one party is so grossly unequal that it puts that party at the mercy of the other’s negligence

3. When the transaction involves public interest

What are the four types of damages?

nominal, compensatory, punitive, and injunctive

What’s the rule for nominal damages?

Nominal Damages is when P claims a de minimis sum to vindicate a right that has been wronged. (doing it to prove a point)

What is the rule for compensatory damages?

Compensatory damages is fair and reasonable compensation in light of the losses that the plaintiff has suffered. There are two types: economic and non-economic.

What’s the rule for eggshell skull?

It states a D is fully liable for all compensatory damages suffered by a plaintiff, even if pre-existing condition made the victim far more susceptible to severe injury than an average person.

What’s the rule for punitive damages?

Punitive damages serves to punish the defendant for their gross negligent/wanton acts. (rarely awarded in negligent claims)

What’s the rule for injunctive relief?

Injunctive relief is when the court orders that the defendant do or stop doing something.

What’s the rule for vicarious liability?

It states one person or entity held responsible for the tortious acts of another who is acting on her or its behalf.

What’s the rule for respondeat superior?

It states that an employer is held vicarious liability for acts committed by its employee that is within the scope of employer’s employment.

How to determine if it’s within the scope of employment?

(1) performing work assigned to you by employer or (2) engaging in work subject to employer’s control; (3) intended by employee in any way to serve an purpose of the employer

What is the rule for independent contractors?

It states there is no vicarious liability for the torts of independent contractors.

What’s the exception to independent contractors?

Vicarious liability attaches where the contractor is engaged in non-delegable duties (inherently dangerous activities, can be imposed by statutes, and commercial landowners duties to provide safe premises to invitees)

What are the three (kinda) exceptions to vicarious liability?

Intentional torts, detour, and frolic

What’s the rule for intentional torts under V.L.?

It states there is generally no vicarious liability under the purpose test, except force is inherent in employee’s work.

What’s the rule/definition of detour under V.L.?

A detour is a minor and permissible deviation from the scope of employment (possible v.l.)

What is the rule/definition for frolic under V.L.?

An unauthorized and substantial deviation. (generally no v.l.)

What’s the difference between direct and vicarious liability?

Direct liability holds a person or company responsible for their own wrongful actions or negligence, while vicarious liability holds a party responsible for the wrongful acts of another person due to a specific relationship.

What’s the rule for several liability?

It states that each defendant is only responsible for their own share of damages, proportional to fault. (Applies when there are multiple sufficient causes and P must collect separately from each D)

What’s the rule for joint and several liability?

It states that each defendant is liable for the entire judgement, regardless of their individual share. (One card to pay and everyone venmo’s later)

What are the three situations in which joint and several liability applies?

indivisible harm, concert of action, and vicarious liability