Torts Quiz 4

Land Owner Liability - Duty - Custom

What does the Impact Rule state regarding emotional distress?

Recoverable if some physical injury has occurred.

What is the Zone of Danger Rule?

It limits liability for negligent infliction of emotional distress to plaintiffs who are in the zone of danger.

What does the Dillon Rule of Foreseeability allow?

It allows recovery for NIED even if the plaintiff was not in the physical ZOD.

Volenti non fit injuria

"To the willing, no injury is done," willing participants accept obvious risks.

What are the three categories of land features?

Activities, artificial conditions, and natural conditions.

Attractive Nuisance Doctrine

Holds landowners liable for injuries to children attracted to dangerous conditions on their property.

What duty is owed to undiscovered trespassers?

No duty is owed to undiscovered trespassers.

What duty is owed to known/anticipated trespassers?

Ordinary care, including a duty to warn of known dangers.

What duty is owed to licensees?

Owner has duty to use reasonable care to warn about dangerous activities, no duty to inspect.

What is the duty of care owed to invitees?

Ordinary care, including inspecting premises and trying to make them safe.

What is the general rule regarding duty to control others?

There is generally no duty to control third parties harmed by other tortfeasors.

What are the exceptions to the general rule of duty to control others?

Therapists have a limited duty if they receive an immediate credible threat against an identifiable third party from a client.

Special Relationships

Parent-child, Jailer-Inmate, Teacher-Student, Inn-keeper-Guest

What must a P prove for NIED?

P must be physically near the scene, contemporaneously perceive the accident, and be closely related to the victim.

Primary assumption of risk

No duty owed when P voluntarily participates in an activity with inherent risks.

What is the difference between express and primary assumption of risk?

Express assumption of risk is an affirmative defense to a tort claim, while primary assumption of risk negates duty.

What is the liability of entertainment owners compared to private property owners?

Entertainment owners have a higher duty of care than private property owners.

Invitees

Persons expressly or impliedly invited by the landowner for business purposes.

What are the four prerequisites for heightened standard of care for children?

1. Artificial condition is a foreseeable risk. 2. Children likely to trespass. 3. Child is unaware of the risk. 4. Risk outweighs utility.

Last Chance Doctrine

If Ps injury could have been avoided, D owed the last clear chance to avoid harm.

Sovereign immunity

"The king can do no harm," doctrine preventing governments from being sued for tort claims

What is the Federal Torts Claims Act?

Allows U..S government to be sued for negligence with certain exceptions.

Statute of Limitations

Limits the time to sue from the date of discovery of injury.

Discovery Rule

SOL starts when a P knows/should have reasonably known an injury occurred.

Statute of Repose

Limits the time to sue from the date of negligence.

False Concealment

Defense for when D conceals the existence of a claim or negligent act.

'Fraus Omnia Corrumpit'

Fraud vitiates everything it touches.

What is the General Duty Rule?

Foreseeable P's prevent foreseeable harm.

What are the three categories in the Tripartite Approach?

Trespasser, Licensee, Invitee.

What is the first step in the Tripartite Approach?

Identify the status/classification of the plaintiff-entrant on the premises.

What is the second step in the Tripartite Approach?

Identify why the plaintiff/entrant has that status

What is the third step in the Tripartite Approach?

Identify whether the entrant's status is clear OR ambiguous

What is the Fourth Step in the Tripartite Approach?

Identify what duty is owed to the plaintiff-entrant

What is the fifth step in the Tripartite Approach?

Identify who owes that duty to the plaintiff

What is constructive notice?

Having actual, reasonable warning or being made aware of a dangerous condition.

Totality of the Circumstances Test

Determines Ds foreseeable duty to prevent criminal attacks based on various factors such as: previous crime, location, time, etc.

What is the Professional Standard of Care?

The standard of care identified by other professionals in the field, which is higher than the ordinary reasonable person standard.

What are the three elements of Medical Informed Consent?

1. Disclose all material risks, 2. Patient would not have had treatment if fully informed, 3. Patient suffered harm from side effects.

What is the exception to disclosure for informed consent?

If knowledge would prevent informed decision-making or worsen the patient's state.

What is contributory fault?

If P is negligent at all, they may not recover damages.

What is comparative fault?

If P is also negligent, they receive a proportionate amount of damages based on their negligence.

Wisconsin Rule

P's negligence must be 50% or less to recover damages.

Under what act can the U.S. government be sued for torts of negligence?

The Federal Tort Claims Act (FTCA).

What is the Discretionary Function Exception?

An exception to the FTCA for tortious acts involving judgment and discretion in policy considerations.

Give an example of a discretionary function.

A park service deciding to use non-lethal methods to manage an aggressive mountain goat.

What does the term 'material' refer to in medical informed consent?

Any information relevant to making a medical decision.