Torts

Question 1

When can πuse res ipsa loquitur?

Answer 1

When she can establish (1) the accident causing the injury is of a type that would not normally occur unless someone was negligent; (2) the negligence must be attributable to the ∆; & (3) π must be free from fault–π must show that the injury wasn’t attributable to her.

RIL can be used to establish duty & breach.

Question 2

What is a motion for directed verdict?

Answer 2

A request that the judge direct a verdict for the moving party rather than give the case to the jury.

Note: this is a very high burden on movant. π’s M4DV is almost always denied. ∆’s will sometimes be granted if π hasn’t shown breach of duty.

Question 3

What is negligence per se?

Answer 3

The breach of a statutory duty of care which creates a presumption of negligence. It can be used to establish duty & breach.

Question 4

What is required for the negligence per se doctrine to apply?

Answer 4

(1) π is in the class intended to be protected by the statute & (2) the statute was designed to prevent the type of harm that she suffered.

Question 5

What are the 4 different negligence theories in addition to ordinary negligence?

Answer 5

(1) negligent supervision
(2) negligent hiring
(3) negligent entrustment
(4) negligent infliction of emotional distress

Question 6

What 3 tests can be used to determine if there is actual cause in negligence cases (cause in fact)?

Answer 6

(1) “But for” test: several acts, each insufficient to cause injury alone combine to cause injury
(2) Substantial factor test: several causes & any one alone would have been sufficient
(3) Alternative causes approach: several acts, but only 1 causes π’s injury, but it’s not known which one. Burden of production here shifts to ∆s.

Question 7

What is the Firefighter’s Rule (Negligence)?

Answer 7

A public safety officer (generally a cop or firefighter) can’t recover for injuries suffered while in the line of duty. It’s a form of assumption of the risk.

Question 8

What’s an intervening force (negligence)?

Answer 8

An outside force that comes into motion after the ∆’s negligent act & combines with it to cause the π’s injury. π’s conduct can NEVER be an intervening force.

Question 9

What is a pure comparative jurisdiction (neg.)?

Answer 9

π’s recovery is reduced by percentage of fault attributed to her. π may recover no matter how great her fault.

Question 10

What is Modified (Partial) Comparative Negligence Jurisdiction?

Answer 10

πcan recover only if she is less than 50% at fault.

Question 11

What is res ipsa loquitur?

Answer 11

A circumstantial evidence doctrine that deals with situations where the fact that a particular injury occurred tends to establish a breach of a duty owed.

Question 12

What is the result of proving res ipsa?

Answer 12

When res ipsa loquitur has been proved, a prima facie case has been established for the π, and no directed verdict may be given for the ∆. The doctrine DOES NOT shift the burden of proof to the ∆, and it DOES NOT create a presumption of negligence on the part of the ∆.

Question 13

What is a dependent intervening force?

Answer 13

A normal response or reaction tot he situation created by ∆’s act.

Question 14

What are independent intervening forces?

Answer 14

Forces that operate on a situation created by a ∆’s negligence but are independent actions, rather than natural responses or reactions to the situation. Independent intervening forces may be foreseeable where the ∆’s negligence increased the risk that these forces would cause harm to the π. Situation where ∆blocks a sidewalk describes a common fact situation involving an independent intervening force – the negligent act of a 3rd person.

Question 15

When is the “but for” test used?

Answer 15

For concurrent causes: where several acts combine to cause the injury, but none of the acts standing alone would’ve been sufficient. But for any of the acts, the injury wouldn’t have occurred.

Under this test, an act or omission to act is the cause in fact of an injury if it wouldn’t have occurred but for the act.

Question 16

When is the substantial factor test used?

Answer 16

For joint causes: where several causes commingle & bring about an injury, but any one alone would’ve been sufficient to cause the injury. In that case, it’s sufficient if ∆’s conduct was a substantial factor in causing the injury.

Question 17

When does an alternative causes situation occur?

Answer 17

When two or more persons have been negligent, but uncertainty exists as to which one caused the π’s injury. Under this approach, the π must prove that harm has been caused to him by one of them (with uncertainty as to which one). Burden of proof then shifts to ∆s, & each must show that his negligence is not the actual cause.

Question 18

What are superseding causes?

Answer 18

Causes that arise int he context of proximate cause rather than actual cause. In addition to being an actual cause, ∆’s conduct must also be a proximate cause of the injury. Causes that arise after the ∆’s conduct that contribute to the injury may be so unforeseeable as to be superseding causes, which cut off ∆’s liability for his original negligent act.

Question 19

What is proximate cause?

Answer 19

A limitation on liability. It deals with liability or non liability for unforeseeable or unusual consequences of one’s acts. In addition to being a cause in fact, the ∆’s conduct MUST ALSO BE the proximate cause of the injury for ∆ to be liable. If his conduct isn’t the proximate cause, he’s not liable. Not all injuries “actually” caused by a ∆ will be deemed to have been proximately caused by his acts. Thus, proximate cause doesn’t create liability for unforeseeable consequences of one’s conduct; rather, it may limit liability for unforeseeable consequences.

Question 20

What elements are required for a prima facie case of negligence?

Answer 20

(1) the existence of a duty on the part of the ∆ to conform to a specific standard of conduct for the protection of the π against unreasonable risk of injury;
(2) breach of that duty by the ∆,
(3) that the breach of duty was the actual & proximate cause of π’s injury, &
(4) damage to π’s person or property

Question 21

When may a bystander who witnesses ∆negligently injuring another recover for NIED?

Answer 21

When he can show a close relationship btw bystander & the person injured, he was present at the scene of the injury, & he observed or perceived the event.

NOTE: bystander’s presence w/i zone of danger from physical injury is NO LONGER REQUIRED for a bystander to recover for witnessing an injury to another.

Question 22

When is the bailee liable to bailor only for gross negligence?

Answer 22

If the bailment is for the sole benefit of the bailor, the bailee is liable only for gross negligence.

Ex. someone taking in the mail of a vacationing neighbor (bailor)

Question 23

When is the bailee liable even for slight negligence?

Answer 23

If the bailment is for the sole benefit of bailee, the bailee is liable even for slight negligence.

Ex. owner of a lawnmower letting a neighbor (bailee) borrow it

Question 24

When is bailee liable for ordinary negligence?

Answer 24

If the bailment is for the sole benefit of a 3rd party, the bailee may be liable to the bailor for ordinary negligence. Similarly, if the bailment is for the mutual benefit of the bailor and bailee, the bailee is liable to the bailor for negligence.

Mutual benefit ex: a computer owner (bailor) delivering it to a repair shop (bailee).

Question 25

What duties are owed by a lessor of realty?

Answer 25

A lessor has a duty to disclose known, hidden defects. At the time of the transfer of possession to a lessee, a lessor is obligated to warn a lessee of existing defects in the premises of which the lessor is aware or has reason to know. The lessor is obligated to give warning to the lessee of existing defects in the premises not only of which the lessor is aware, but also of which he has reason to know, and which he knows the lessee is not likely to discover on reasonable inspection.

A lessor DOESN’T have a duty to remedy known defects. After disclosing concealed, dangerous conditions, the lessor is not obligated to make repairs to defects; he would only be liable if he covenanted to make repairs and did so negligently.

A lessor DOESN’T have a duty to continue to maintain the premises in possession of the lessee. Liability ordinarily is an incident of occupation and control. If a lessor leases the entire premises, the lessee becomes burdened with the duty to maintain the premises so as to avoid unreasonable risk of harm to others. When the lessor leases only a portion of the premises, he is subject to liability for dangerous conditions in those portions of the premises over which he still retains control.

A lessor is subject to liability for unreasonably dangerous conditions if he has covenanted to make repairs and reserves the right to enter the leased premises. This comports with the general rule that tort liability in regard to conditions on the property is an incident of the occupation and control of the premises.

Question 26

Can an unwanted child sue for wrongful life?

Answer 26

In most states, an unwanted child’s suit for “wrongful life” after the ∆ fails to diagnose a congenital defect of the fetus is not actionable. The failure to diagnose a congenital defect of the fetus or to properly perform a contraceptive procedure does not permit the unwanted child to recover damages for “wrongful life,” even if the child is born with a handicap.

The child’s parents’ suit for “wrongful birth” after the ∆ fails to diagnose a congenital defect of the fetus is actionable in most states.

Question 27

Can a mother sue if ∆ fails to properly perform contraceptive procedure?

Answer 27

The child’s parents’ suit for “wrongful pregnancy” after the ∆ fails to properly perform a contraceptive procedure is actionable in most states.

The child’s mother’s suit for an unwanted labor after the ∆ fails to properly perform a contraceptive procedure is actionable. The mother can recover damages for the unwanted labor (medical expenses and pain and suffering).