Torts Study Guide

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TORTS EXAM 2 STUDY GUIDE
NEGLIGENCE
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:

1.Was the Defendant’s conduct unreasonable?
2.Did the Defendant cause the Plaintiff’s injury?
Elements of Negligence:
1.Duty by the Defendant to the Plaintiff
2.Defendant breached the duty of reasonable care
3.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

1.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.Common Sense

REASONABLE PERSON
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:
1.Who owes this duty?
2.To whom is the duty owed?
3.When does the duty arise?
4.What is the standard of conduct to which there must be conformity? •Duty owed to a particular Plaintiff?
1.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: •Common carrier/passenger

Innkeeper/guest
Employer/employee
Landowner or possessor/invitee
Parent/child
Ship captain/sailor
Husband/wife
Malfeasance: Public official (political, legal, etc.) fails to act properly under circumstances. Breach of Duty
Occurs when one engages in unreasonable conduct
Elements:
1.Would a reasonable person have done the same thing?
2.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
4.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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