LEGL 111: Test #2

What is the definition of torts?

A civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability 

What is torts not considered?

Contract law

What are the three main types of torts?

Negligence, intentional, and strict liability

What is the primary type of torts?

Negligence Torts

Negligence Torts

Failure to behave with the level of care that a reasonable person would have exercised under the circumstances

True or False: Intention is important in negligence torts

False

To prove negligence, one must have the ______ ______

Golden rule

What are the four parts of the golden rule?

Duty, breach, causation, damages

If your able to correctly use the golden rule, what happens?

You meet your burden of proof

What is the acronym for the golden rule?

DBCD (Dan’s Bride Cries Dramatically)

In a scenario with a car, give me an example of the golden rule.

The duty is obeying the rules of the road, the breach is when they disobeyed the rules and ran a stop sign, the causation is the effect of the breach such as hitting a car, and the damages are the worth of whatever was damaged

Contributory Negligence

When an injured party (the plaintiff) is found to have contributed to their own injury through their own negligence

What is an example of contributory negligence?

Both cars were speeding and hit each other

What is the duty owed to? (Golden Rule)

Foreseeable victims only

What standard of care do we hold a person to as their duty? (Golden Rule)

Reasonably prudent person acting under similar circumstances

What are the exceptions/modifications of the standard of care in duty? (Golden Rule)

When defendant has superior knowledge that would go beyond that of an average person, professional malpractice, and age/children

Superior Knowledge (Golden Rule → Duty → Exceptions of Standard of Care)

Requires a person to disclose any hazardous conditions they know about that are not obvious to a person exercising reasonable care.

What is an example of superior knowledge in standards of care? (Golden Rule)

Knowing that the jaywalking to Palumbo is normal for Gannon students but hitting people anyways

Willful Blindness

A legal doctrine that refers to a situation where a person intentionally chooses to ignore or avoid knowledge about something wrong or illegal, even when they have strong reasons to suspect it

What is the > 4 rule? (Golden Rule)

No duty

What is the 4-17 rule? (Golden Rule)

Subjective; child of similar age and circumstances

Premises Liability Cases

A legal claim that arises when an individual is injured due to unsafe conditions on someone else's property, holding the property owner responsible for failing to maintain a safe environment.

What is the most known example of premises liability cases?

Jim Carrey’s burglary case in “Liar, Liar”

What are the duty standards of premises liability cases?

Standards based on the status of one entering premises/property

What are the four standards of premises liability cases?

Undiscovered trespasser, discovered/anticipated trespasser, licensees, and invitees

What is the duty of the owner for an undiscover trespasser?

No duty

What is the duty of the owner for a discovered/anticipated trespasser?

Duty to protect from artificial (human built), highly dangerous, concealed, known by owner

What is the most common example of a discovered/anticipated trespasser case?

Owning a piece of land that people keep trespassing on regardless of signs and you set up traps

What differentiates the first three standards of premises liability cases from the last one?

There is no duty to investigate otherwise known as the owner didn’t know it was there

Licensees

Persons entering land or property with permission but no economic benefit to owner

What is the duty of the owner for a licensee?

Duty to protect from any condition concealed and known by owner

Invitees

Persons entering land or property with permission and gives economic benefit to the owner or open to public

What is the duty of the owner for an invitee?

Duty to protect from any condition concealed, known, or could have been discovered through reasonable inspection

Breach

Identify wrongful conduct and offer reason why said conduct was unreasonable

What does Res Ispa Loquitur translate to?

The thing speaks for itself

What is Res Ispa Loquitur usually written as?

Res ispa

Res Ispa Loquitur

Used when traditional breach is hard to prove/quantify so you can use circumstantial evidence/common sense

True or False: Res Ispa Loquitur isn’t used much in court

False

What is an example of using Res Ispa Loquitur?

Fighting a case for amputating the wrong leg

True or False: A certificate of merit is not necessary in res ispa cases, but may help

True

In a torts medical malpractice case, who are attorneys’ going to target?

The biggest group/wallet like an entire hospital

What are the two types of causation?

Actual/factual cause and proximate cause

What is the legal test for actual/factual cause?

“But/For Test”

“But/For Test”

“But for” the breach, the plaintiff would not have suffered the injury

What is the legal test for proximate cause?

Fairness Test

What is the proximate cause in basic terms?

A’s fault, but effects are on B and C

Fairness Test

Defendant is held liable for the foreseeable consequences given the nature of the breach

What is an example that would apply to the fairness test?

100 mph speeding car is on the tail of another, said car swerves into another out of panic

Comparative negligence is also known as what?

Arguing the alternative OR contributory negligence

Comparative Negligence

A form of defense saying that the plaintiff failed to exercise proper care; the plaintiff’s recovery would be reduced in proportion to their share of negligence

With a comparative negligence case, what might the jury do?

Might break it into percentages

What is example of how a jury might “break into percentages” for a comparative negligence case?

Defendant 80%, plaintiff 20% at fault; $1,000 case, defendant $800, plaintiff $200

Where does the “Egg Shell Skull” rule come from?

Humpty Dumpty

“Egg Shell Skull” Rule

Once a plaintiff has established the golden rule of a tort claim, they are entitled to recover all damages suffered even if surprising in scope

What is an example of the “Egg Shell Skull” rule?

Tapping a bumper and breaking vertebrae

What are the four parts of intentional torts?

Battery, assault, false imprisonment, trespass to land

Battery

Defendant commits harmful or offensive contact

What does offensive mean in the definition of battery?

Usually concerns with sexual contact

What are the needs to establish battery?

Contact (or an extension of contact) with plaintiff’s person, intent, causation/damages

Assault

Defendant must place plaintiff in reasonable apprehension of harmful/offensive conduct

What is needed to establish assault?

Reasonable apprehension, intent, and causation

What does reasonable apprehension mean in the definition of assault?

Words alone are not enough (apparentability)

What is an example of reasonable apprehension?

Not just talking smack to someone but physically getting up and yelling in a person’s face

False Imprisonment

Defendant must commit act (or omission) that confines or constraints

What is needed to establish false imprisonment?

Plaintiff is aware or harmed by constraint, plaintiff is confined in a bounded area, intent, causation

Bounded Area

No reasonable means of escape that plaintiff could reasonably discover

What is an example of false imprisonment?

Cinderella being locked away in the cellar

Trespass to Land

Defendant commits act of physical invasion of the plaintiff’s property

What is needed to establish trespass to land?

Intent, causation, and soil/air does not count

Strict Liability Torts

Hold the defendant responsible for their actions regardless of any negligence or intent

What are the three sections of strict liability torts?

Injuries caused by “wild” animals, abnormally dangerous activity, and products liability

True or False: Strict liability injuries caused by “wild” animals extends to trespassers

False

When does strict liability apply in terms of injuries caused by “wild” animals?

If the plaintiff did not provoke the animal

What does “wild” mean in strict liability torts"?

Non domesticated or not permitted

If a person has a permit to own certain animals, can they still face legal action if the animal hurts someone?

Yes

What is considered abnormally dangerous activity?

Activities that create a foreseeable risk of serious harm even when reasonable care is exercised

Which is the trickier part to argue in strict liability abnormally dangerous activity?

Activity is not “common usage” in the community

What is an example of abnormally dangerous activity?

Parkour

What is needed for products liability?

Defendant has to be a merchant, product must be defective, plaintiff must show that the product has not been altered since it left the defendant’s hands, and the plaintiff must be making a foreseeable use of the product at the time of injury

What is a merchant in torts law?

Anyone in the distribution chain

What are merchants NOT in product liability?

Casual sellers like Ebay or Walmart

What are the three types of defective products?

Manufacturing defects, design defects, and failure to warn defects

Manufacturing Defects

When product differs from all others coming off the assembly line in a way that makes it more dangerous; product departs from intended design

Design Defects

There is an alternative design that is safer, economical, and practical

Failure to Warn Defects

If the product cannot be made safer, it must have adequate warnings; HOWEVER, cannot cure a design defect

What does adequate mean in the definition for “failure to warn defects?”

Prominence, language, and pictures

What do companies not have to warn about on their products?

Obvious dangers like the fact that knives are sharp

Offeror

Creating/giving contract

Offeree

Accepting contract

What is a merchant according to contract law?

A person with knowledge/skill particular to practices

What rules apply to lay contracts?

Standard rules

What rules apply to merchant contracts?

Relies on the UCC

What does UCC stand for?

Uniform Commercial Code

Which type of contracts do the courts usually operate with?

Lay contracts

What are the three basic elements of contract law?

Offer, acceptance, consideration

What is the test for the offer in contract law?

Whether a reasonable person in the offeree’s position would believe their assent would create a contract

What do you need for an offer?

A promise, undertaking, commitment, essential terms, communication (written, verbal, etc.)

What does it mean to need a promise, undertaking, or commitment for an offer in contract law?

Clear that accepting the offer would make a binding agreement

What is an example of NOT a binding agreement?

Solicitation

What does it mean to need essential terms for an offer in contract law?

If the price or exchange is vague, it’s not clear in terms of an offer