TORTS EXAM 2 STUDY GUIDE
Negligence: The failure of individuals to appreciate the risks caused by their conduct. •
Synonymous with carelessness did not intend to cause harm to Plaintiff •
To determine whether negligence exists, must ask:
Was the Defendant’s conduct unreasonable?
Did the Defendant cause the Plaintiff’s injury?
Elements of Negligence:
Duty by the Defendant to the Plaintiff
Defendant breached the duty of reasonable care
Defendant’s actions were the proximate cause (nearest cause/ number of factors that collectively caused the Plaintiff’s injuries) or actual cause (specific factor that caused the Plaintiff’s injuries) of the harm to Plaintiff 4.
Plaintiff sustained damages/injuries
Foreseeability: The capacity for a party to reasonably anticipate a future event/ the extent to which something is predictable. -
Intend the event/result or knew with substantial certainty the result would happen -
Measured by an objective standard (based on conduct and perceptions external to a particular person) -
Factors in Considering Foreseeability
Area- physical situation and location in which the event occurred 2.
Activity- specific activities going on at the time of the accident/event 3.
People- types of people involved in the activities that led to the event/result 4.
Preparation- amount of preparation involved in an activity (longer preparation, more likely to foresee possible damages/injuries that could occur 5.
Human Nature- kind of behavior usually expected of someone engaged in the kind of activity being examined 6.
History- more frequently something has occurred in the past, the more foreseeable it is 7.
Sensory Data- eyes, ears, nose, fingers, feet, etc. provide signs of what could happen? 8.
Measured by objective standard
Should possess a certain minimum level of knowledge (understanding gained by actual experience) that enables them to understand the consequences of their actions •
Minors are an exception, unless engaged in a potentially dangerous activity that is normally performed only by adults DUTY
Duty of Care: Obligation/requirement to conform to a standard of conduct prescribed by the law. Behave the way a reasonable person would. •
To determine if a duty is required, must ask:
Who owes this duty?
To whom is the duty owed?
When does the duty arise?
What is the standard of conduct to which there must be conformity? •
Duty owed to a particular Plaintiff?
Cardozo Test/ Zone of Danger Test- duty owed to a specific Plaintiff within a foreseeable zone of danger 2.
Andrews Test/ World at Large Test- duty owed if (a) Plaintiff suffers an injury as a result of conduct of the Defendant (b) Conduct unreasonable •
Misfeasance: The improper performance of some act that a person may lawfully do. Improper or unreasonable conduct. •
Nonfeasance: The omission of an act that a person ought to do. Failure to act. -
Liability cannot be based on nonfeasance, only if a special relationship exists between the Plaintiff and Defendant: •
Landowner or possessor/invitee
Malfeasance: Public official (political, legal, etc.) fails to act properly under circumstances. Breach of Duty
Occurs when one engages in unreasonable conduct
Would a reasonable person have done the same thing?
Was the occurrence of the accident and/or the injury forseeable? 3.
Burden/inconvenience involved in taking necessary precautions to avoid the accident -
Cost, Time, Effectiveness, Aesthetics
Importance/social utility of what the Defendant was trying to do before the accident Doctrine of Res Ipsa Loquitur
Res Ipsa Loquitur: Defendant’s unreasonableness is more likely than not the explanation for the incident without specifically pointing to the Defendant’s behavior. -
“The event speaks for...
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