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Torts - davis

Terms

undefined, object
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Respondeat Superior Scope of Employment Test
(i) Is the employee's conduct must be of the general kind the employee is hired to perform? (ii) Is the employee's conduct must occur substantially within the hours and ordinary spatial boundaries of the employment? (iii) The employee's conduct must be motivated at least in part by the purpose of serving the employer's interest?
PRIMA FACIE TORT OF NEGLIGENCE
Act Duty Causation Injury
Learned Hand Formula
B < PL
Standards of Negligence Children
Most states under 4 incapable of negligence. A few have a conclusive presumption that children under 7 are incapable of negligence and also a rebuttable presumption that children between ages 7 and 14 are not capable of negligence
Standards of Negligence Disabled
Reasonable person standard applies but the disability is treated as one of the circumstances in deciding how a reasonable person would act
Standards of Negligence Mental Deficiency
Reasonable person standard applies without regard to the mental deficiency
Standards of Negligence Learners/Beginner
Reasonable person standard applies without regard to their status
Standards of Negligence Professional
A professional (other than a physician) is held at a minimum to the standard of care customarily exercised nationwide by a member of that profession
Standards of Negligence Medical Professional
Early cases held medical professionals to the standard of other medical professionals in the same community; modern trend expands to care used in same or similar community, and requires nationally certified specialists to meet a national standard
Effect of proof of custom
(a) Non-compliance with the custom is a jury question (reasonableness of the conduct in regards to compliance or non-compliance with a custom) (b) Failure to comply with certain practices might be conclusive proof of negligence (needs to be substantial, in which reasonably prudent minds cannot differ) (c) Courts are reluctant to go against custom there is concern that it might lead to social upheaval
Three approaches to the value of the statutory violation
(a) Fact/some evidence for jury to consider (b) Prima facie evidence at the least the conduct can be found to be negligent/presumption of negligence (c) Negligence in itself/ per se – strict liability
Randi W Factors
Foreseeability of harm to P Degree of certainty that the P suffered injury The closeness of the connection between the defendant's conduct and the injury suffered The moral blame attached to the D's conduct The policy of preventing future harm
General Duty
General Notion that if you engage in conduct that creates a risk of harm there is a duty to reduce the risk of potential perisl
Specific Relationship duty
common carrier/passenger innkeeper gues landowner/public invitee custodial relationship social companions
Informed Consent reasonable patient standard
measured by what a reasonable patient would need to know in order to make an informed and intelligent decision about the proposed treatment existence, nature, and likelihood of risk needs to be in lay terms
business practice rule
business practices that create a reasonably foreseeable risk of harm to invitee - approaches a form of strict liability
Res Ipsa Loquitor 1. elements 2. justifications
elements 1. type of harm that doesn't usually result without someone's neglignece 2. negligence can be attributed to the defendant because the accident is of a type that defendant had a duty to gaurd against (D controlled the risk and instrumentality exclusively) 3. Neither plaintiff nor 3 party contributed or caused the plaintiff's injuries Justifications access to evidence information to the circumstances surrounding the case
Negligence per se test of safety statutes
1. protect a class of persons 2. protect the particular interest from a kind of harm 3. from a a particular hazard 4. violation of a statute is not automatically considered negligence if there is a good reason to depart from the dictates of the statute
approaches to statutory violation in torts
1. fact/evidence 2. prima facie evidence which requires rebuttal 3. negligence per se - no rebuttal
Inference of a private right to action
1. the plaintiff is a member of the class the statute was intended to benefit 2. recognizing a private right of action would promote the legislative purpose 3. private right of action would be consistent with legislative scheme
negligent entrustment doctrine
Negligent entrustment is generally found where the entrustee had a reputation or record that showed his propensity to be dangerous through possession of such an instrumentality. Where the claim is against an employer, the employer will be held liable if the entrustee's record was known to the employer or would have been easily discoverable by that employer, had a diligent search been conducted
Negligent Encouragment
have you actively produced or encouraged behavior that is potentially dangerous
Definition & Duty Owed - Invitee
one who enters land w/ permission and the landowner has an interest in the visit (business or public) - exercise reasonable to protect from both known dangers and those that would be revealed through inspection (business, inspectors, collectors⬦)
Definition & Duty Owed - Licensee
enters land with permission for their own purpose – owes a duty to warn or make safe, natural or artificial conditions or activities involving any risk of harm KNOWN to the land occupier and not obvious to a reasonable person coming onto the land (social guests, doorbell ringers, solicitors, ect…)
Definition & Duty Owed - Trespasser
anyone who enters land w/o the permission of the owner - no duty – except for willful and wanton dangers 1. some exceptions, natural dangers do not count 2. a constant trespasser (CULTA) is owed a duty to make safe artificial conditions and activities that involve a risk of death or serious bodily harm 3. a child trespasser imposes a special duty when there is an attractive nuisance (too young to realize the danger, younger the child the greater the chance it being an attractive nuisance) the duty is to warn or protect from artificial conditions involving a risk of death or serious bodily harm
modern approach to landowner duties
(a) Everybody owed reasonable care in the circumstances owed to persons on the land with the exception of trespassers w/ randi w factors
Test to determine if a business owes a duty to protect against 3 party criminal acts
(i) Specific harm rule - land owner does not owe a duty unless he is aware of specific eminent harm (ii) Similar incidents tests - uses foreseeability established by evidence of previous crimes on or near the premises (iii) Totality of the circumstances - These tests takes into account additional factors such as the nature, condition, and location of the land, as well as any other relevant factual circumstances bearing on foreseeability. (iv) Balancing test - seeks to address the interest of both business proprietors and their customers by balancing the foreseeability of harm against the burden of imposing a duty to protect against criminal acts of the third persons. (MAJORITY APPROACH)
reasonable parent test
parent's conduct is judged by whether that parent's conduct comported with that of a reasonable and prudent parent in a similar situation. Although a parent has the prerogative and the duty to exercise authority over his minor child, this prerogative must be exercised within reasonable limits.
Goller Standard (parental immunity is abrogated except:)
(i) Where the alleged negligent act involves an exercise of parental authority over the child; and (ii) Where the alleged negligent act involves and exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care
Cuffy Factors
1. An assumption by the municipality through promises or action, of an affirmative duty to act on behalf of the party who was injured 2. Knowledge on the part of the municipality's agents that inaction could lead to harm 3. Some form of direct contact between the municipality's agents and the injured party 4. That party's justifiable reliance on the municipality's undertaking
Federal Tort Claims act for discretionary exemption
(i) Is there a federal statute or regulation or policy specifically prescribing a course of action for the employee to follow? If so, then an employee has no choice. The only question to ask is if the employee followed the directive—if so, exempt from suit under FTCA. If not, then opens the govt. up to suit. (ii) If the activity does involve choice, the question is: Is the challenged discretionary act of a government employee of the nature and quality that congress intended to shield from tort liability? If they involve the exercise of political, social, or economic judgment, then they are exempt from suit under FTCA.
Zone of danger rule
1. fear for own safety 2. imminent peril 3. substantial bodily injury/sickeness
Impact Rule
Common law rule that prevented recovery for emotional distress for a lack of physical impact
Dillion Proximity Factors (emotional distress of a close relative)
1. plaintiff's proximity 2. temporal/contemporaneous observance 3. relationship to victim 4. severity of the emotional distress as the result
Cause if Fact
actual cause proximate cause
Substantial Factors Requirements
1. d's negligence was but for cause of the injury 2. the negligence is causally linked ot the injury 3. d' negligence was proximate to the injury
standard for permitting expert witnesses
(i) Qualified as an expert by knowledge, skill, experience, training, or education (ii) And if scientific technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine the fact (iii) The decision to admit expert testimony is left to the broad discretion of the trial judge and will be overturned only when manifestly erroneous
Lost Chance Doctrine
you may recover for lost opportunity (subject to the proportional decrease in the opportunity + the actual manifestation of the underlying condition)
Alternative liability requirements (the res ipsa of causation)
(i) Culpable defendants (ii) All culpable tortfeasors before the court
DIRECTNESS TEST:
D is liable for injuries directly traceable to D's negligent acts
Foreseeability Rule
everybody recognizes there is a need for - limitation - culpability needs to be commensurate with liability
Test for Comparative fault
(a) What conduct? (reckless, intentional, strict liability⬦) (b) Effect on P's recovery? (c) Effect on D's liability? (as it applies to joint and several liability) (d) Effect between D's?
Express Assumption of Risk, waiver of liability requirements for enforcement
1. Freely and fairly made 2. Parties that are in equal bargaining positions 3. No social interest that are interfered
Implied Assumption of Risk
(i) Primary - no prima facie case of negligence - no duty owed (not an affirmative defense) (ii) Secondary - prima facie case (duty owed), but unreasonably behavior on the part of the plaintiff (affirmative defense)

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