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Torts - Negligence
Terms in this set (27)
What are the 3 classifications of tort law?
2. Product Liability/Strict Liability
3. Intentional Torts
What are the 4 elements/substantive law of negligence?
1. Duty of care
2. Breach of duty
What is proximate cause?
Proximate cause is the cause-and-effect relationship that must be established to prove the conduct in question was the substantial cause. It requires consideration of foreseeable consequences and intervening causes.
What is the general rule on foreseeability?
Generally speaking, if the result is not foreseeable, then there is no liability
The "but for" test and "substantial factor" are used in determining ________________.
What are 5 defenses to negligent action?
1. Comparative fault
2. Contributory negligence
3. Assumption of risk
4. Statute of limitations
5. Superseding intervening act
What is primary assumption of risk?
Occurs when the defendant does not have a duty to care for the plaintiff because the plaintiff is fully aware of the risks
What is secondary assumption of risk?
Occurs when the defendant has a duty of care for the plaintiff, and breaches that duty in some manner.
True or False: A chain of events that is something that could be expected (foreseeable) is an intervening cause.
True. An intervening cause isn't an unreasonable event to have happened.
Bill's negligence causes an injury to Harold, a foreseeable plaintiff. While in the hospital, a tornado hits, causing further injury to Harold. What is Bill liable for and why?
Bill is only liable for his negligent act because the tornado was a superseding cause that broke the chain of causation.
True or False: A cause can be superseding without being intervening.
False. All superseding causes are first an intervening cause. Not all intervening causes will be superseding.
Who establishes statutes of limitations?
The states establish the time period for statutes of limitations.
The Fireman's Rule states that _________________________
Firefighters cannot sue those whose negligence caused or contributed to a fire that, in turn, caused the firefighter's injury or death.
The Fireman's Rule is what type of risk?
The Fireman's Rule is a primary assumption of risk.
What are the elements of Product Liability (from Restatement of Torts)?
1. Class of plaintiffs -- the ultimate user/consumer
2. Class of defendants -- anyone in chain of distribution
3. Defective product
4. Unreasonably dangerous product
5. Product has not been altered
6. Causation -- the defect is the cause
7. No assumption of the risk
What are the three types of product defects?
1. Defect in design
2. Defect in manufacture
3. Failure to warn
Name some types of superseding causes.
1. Acts of God
2. Criminal acts of third persons
3. Intentional torts of third persons
4. Gross negligence
Name some types of foreseeable intervening harm
1. Negligence of rescuers
2. Subsequent medical malpractice
3. Subsequent health problems
4. Subsequent accidents arising from initial injury
Explain "breach of duty."
Failure to conform to a required standard of care by act or omission
Explain "duty of care."
To act as a reasonable and prudent person. The duty is owed to foreseeable individuals.
What is the "last clear chance" defense?
It permits recovery of damages by parties who normally could not recover because of their contributory negligence. A "defense to the defense." Example: Ann Forrester carelessly runs across the road in path of Mr. Hart. Mr. Hart has the last clear chance to avoid the accident, but if he is negligent by being inattentive, he could be held liable.
What type of authority are restatements of law?
Restatements are secondary authority unless they are adopted by a state. MN has adopted the Restatement of Torts.
What is strict liability?
Absolute legal responsibility for an injury that can be imposed on the wrongdoer without proof of carelessness or fault.
What type of warranty is a promise of quality on which a buyer relies when purchasing a product?
Express warranties are voluntarily assumed by the manufacturer.
True or False: An implied warranty is a written guarantee to the buyer.
False. An implied warranty is unwritten and unspoken. It guarantees to the buyer that the goods conform to ordinary standards of care and quality as similar products.
Name some types of intentional torts.
3. False imprisonment/false arrest
4. Intentional infliction of emotional distress
5. Invasion of privacy
8. Property damage
What are four remedies to intentional torts?
1. Temporary restraining order
2. Permanent injunction
4. Monetary damages
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