Torts - Restatement (Torts), Third - Liability for Physical and Emotional Harm
Terms in this set (37)
S3 - Negligence
A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are:
1. the foreseeable likelihood that the person's conduct will result in harm,
2. the foreseeable severity of any harm that may ensue, and
3. the burden of precautions to eliminate or reduce the risk of harm.
S7 - Duty
1 - An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm.
S9 - Emergency
If an actor is confronted with an unexpected emergency requiring rapid response, this is a circumstance to be taken into account in determining whether the actor's resulting conduct is that of the reasonably careful person.
S10 - Children
1 - A child's conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence,
2 - This does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults.
S11 - Disability
1 - The conduct of an actor with a physical disability is negligent only if the conduct does not conform to that of a reasonably careful person with the same disability.
2 - The conduct of an actor during a period of sudden incapacitation or loss of consciousness resulting from physical illness is negligent only if the sudden incapacitation or loss of consciousness was reasonably foreseeable to the actor.
3 - An actor's mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child.
S12 - Knowledge and skills
If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person.
S13 - Custom
1 - An actor's compliance with the custom of the community, or of others in like circumstances, is evidence that the actor's conduct is not negligent but does not preclude a finding of negligence.
2 - An actor's departure from the custom of the community, or of others in like circumstances, in a way that increases risk is evidence of the actor's negligence but does not require a finding of negligence.
S14 Statutory violations as negligence per se
An actor is negligent if:
1 - without excuse,
2 - the actor violates a statute that is designed to protect against the type of accident the actor's conduct causes, and
3 - if the accident victim is within the class of persons the statute is designed to protect.
S15 - Excused violations
An actor's violation of a statute is excused and not negligence if the actor's compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance.
S17 - Res Ipsa Loquitur
The factfinder may infer that the defendant has been negligent when the accident causing the plaintiff's harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the defendant is the relevant member.
S18 - Negligent failure to warn
1 - A defendant whose conduct creates a risk of physical or emotional harm can fail to exercise reasonable care by failing to warn of the danger if: A - the defendant knows or has reason to know: (a) of that risk; and (b) that those encountering the risk will be unaware of it; and B - a warning might be effective in reducing the risk of harm. 2 - Even if the defendant adequately warns of the risk that the defendant's conduct creates, the defendant can fail to exercise reasonable care by failing to adopt further precautions to protect against the risk if it is foreseeable that despite the warning some risk of harm remains.
S19 - Conduct That Is Negligent Because of the Prospect of Improper Conduct by the Plaintiff or a Third Party
The conduct of a defendant can lack reasonable care insofar as it foreseeably combines with or permits the improper conduct of the plaintiff or a third party.
S20 - Abnormally Dangerous Activities
1 - An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity. 2 - An activity is abnormally dangerous if: a) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and b) the activity is not one of common usage.
S21 - Intrusion by Livestock or Other Animals
An owner or possessor of livestock or other animals, except for dogs and cats, that intrude upon the land of another is subject to strict liability for physical harm caused by the intrusion.
S22 - Wild Animals
1 - An owner or possessor of a wild animal is subject to strict liability for physical harm caused by the wild animal. 2 - A wild animal is an animal that belongs to a category of animals that have not been generally domesticated and that are likely, unless restrained, to cause personal injury.
S23 - Abnormally Dangerous Animals
An owner or possessor of an animal that the owner or possessor knows or has reason to know has dangerous tendencies abnormal for the animal's category is subject to strict liability for physical harm caused by the animal if the harm ensues from that dangerous tendency.
S24 - Scope of Strict Liability
Strict liability under SS 20- 23 does not apply 1 - if the person suffers physical or emotional harm as a result of making contact with or coming into proximity to the defendant's animal or abnormally dangerous activity for the purpose of securing some benefit from that contact or that proximity; or 2 - if the defendant maintains ownership or possession of the animal or carries on the abnormally dangerous activity in pursuance of an obligation imposed by law.
S25 - Comparative Responsibility
If the plaintiff has been contributorily negligent in failing to take reasonable precautions, the plaintiff's recovery in a strict-liability claim under §§ 20- 23 for physical or emotional harm is reduced in accordance with the share of comparative responsibility assigned to the plaintiff.
S37 - No Duty of Care with Respect to Risks Not Created by Actor
An actor whose conduct has not created a risk of physical or emotional harm to another has no duty of care to the other unless a court determines that one of the affirmative duties provided in §§ 38- 44 is applicable.
S38 - Affirmative Duty Based on Statutory Provisions Imposing Obligations to Protect Another
When a statute requires an actor to act for the protection of another, the court may rely on the statute to decide that an affirmative duty exists and to determine the scope of the duty.
S39 - Duty Based on Prior Conduct Creating a Risk of Physical Harm
When an actor's prior conduct, even though not tortious, creates a continuing risk of physical harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to prevent or minimize the harm.
S40 - Duty Based on Special Relationship with Another
An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship. Special relationships giving rise to the duty provided include: 1 - a common carrier with its passengers, 2 - an innkeeper with its guests, 3 - a business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises, 4 - an employer with its employees who, while at work, are: a) in imminent danger; or b) injured or ill and thereby rendered helpless, 5 - a school with its students, 6 - a landlord with its tenants, and 7 - a custodian with those in its custody, if: a) the custodian is required by law to take custody or voluntarily takes custody of the other; and b) the custodian has a superior ability to protect the other.
S41 - Duty to Third Parties Based on Special Relationship with Person Posing Risks
1 - An actor in a special relationship with another owes a duty of reasonable care to third parties with regard to risks posed by the other that arise within the scope of the relationship. 2 - Special relationships giving rise to the duty provided include: a) a parent with dependent children, b) a custodian with those in its custody, c) an employer with employees when the employment facilitates the employee's causing harm to third parties, and c) a mental-health professional with patients.
S42 - Duty Based on Undertaking
An actor who undertakes to render services to another and who knows or should know that the services will reduce the risk of physical harm to the other has a duty of reasonable care to the other in conducting the undertaking if: 1 - the failure to exercise such care increases the risk of harm beyond that which existed without the undertaking, or 2 - the person to whom the services are rendered or another relies on the actor's exercising reasonable care in the undertaking.
S43 - Duty to Third Parties Based on Undertaking to Another
An actor who undertakes to render services to another and who knows or should know that the services will reduce the risk of physical harm to which a third person is exposed has a duty of reasonable care to the third person in conducting the undertaking if: 1 - the failure to exercise reasonable care increases the risk of harm beyond that which existed without the undertaking, 2 - the actor has undertaken to perform a duty owed by the other to the third person, or 3 - the person to whom the services are rendered, the third party, or another relies on the actor's exercising reasonable care in the undertaking.
S44 - Duty to Another Based on Taking Charge of the Other
1 - An actor who, despite no duty to do so, takes charge of another who reasonably appears to be: a) imperiled; and b) helpless or unable to protect himself or herself has a duty to exercise reasonable care while the other is within the actor's charge.
2 - An actor who discontinues aid or protection is subject to a duty of reasonable care to refrain from putting the other in a worse position than existed before the actor took charge of the other and, if the other reasonably appears to be in imminent peril of serious physical harm at the time of termination, to exercise reasonable care with regard to the peril before terminating the rescue.
§ 51 General Duty of Land Possessors
Subject to § 52, a land possessor owes a duty of reasonable care to entrants on the land with regard to:
(a) conduct by the land possessor that creates risks to entrants on the land;
(b) artificial conditions on the land that pose risks to entrants on the land;
(c) natural conditions on the land that pose risks to entrants on the land; and
(d) other risks to entrants on the land when any of the affirmative duties provided in Chapter 7 is applicable.
§ 54 Duty of Land Possessors to Those Not on the Possessor's Land
(a) The possessor of land has a duty of reasonable care for artificial conditions or conduct on the land that poses a risk of physical harm to persons or property not on the land.
(b) For natural conditions on land that pose a risk of physical harm to persons or property not on the land, the possessor of the land
(1) has a duty of reasonable care if the land is commercial; otherwise
(2) has a duty of reasonable care only if the possessor knows of the risk or if the risk is obvious.
(c) Unless Subsection (b) applies, a possessor of land adjacent to a public walkway has no duty under this Chapter with regard to a risk posed by the condition of the walkway to pedestrians or others if the land possessor did not create the risk.
§ 45 Emotional Harm
"Emotional harm" means impairment or injury to a person's emotional tranquility.
§ 47 Negligent Conduct Directly Inflicting Emotional Harm on Another
An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct:
(a) places the other in danger of immediate bodily harm and the emotional harm results from the danger; or
(b) occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional harm.
§ 48 Negligent Infliction of Emotional Harm Resulting from Bodily Harm to a Third Person
An actor who negligently causes sudden serious bodily injury to a third person is subject to liability for serious emotional harm caused thereby to a person who:
(a) perceives the event contemporaneously, and
(b) is a close family member of the person suffering the bodily injury.
§ 26 Factual Cause
Tortious conduct must be a factual cause of harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. Tortious conduct may also be a factual cause of harm under § 27.
§ 27 Multiple Sufficient Causes
If multiple acts occur, each of which under § 26 alone would have been a factual cause of the physical harm at the same time in the absence of the other act(s), each act is regarded as a factual cause of the harm.
§ 28 Burden of Proof
(a) Subject to Subsection (b), the plaintiff has the burden to prove that the defendant's tortious conduct was a factual cause of the plaintiff's harm.
(b) When the plaintiff sues all of multiple actors and proves that each engaged in tortious conduct that exposed the plaintiff to a risk of harm and that the tortious conduct of one or more of them caused the plaintiff's harm but the plaintiff cannot reasonably be expected to prove which actor or actors caused the harm, the burden of proof, including both production and persuasion, on factual causation is shifted to the defendants.
§ 29 Limitations on Liability for Tortious Conduct
An actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious.
§ 30 Risk of Harm Not Generally Increased by Tortious Conduct
An actor is not liable for harm when the tortious aspect of the actor's conduct was of a type that does not generally increase the risk of that harm.
§ 31 Preexisting Conditions and Unforeseeable Harm
When an actor's tortious conduct causes harm to a person that, because of a preexisting physical or mental condition or other characteristics of the person, is of a greater magnitude or different type than might reasonably be expected, the actor is nevertheless subject to liability for all such harm to the person.