Torts

intentional infliction of emotional distress: "extreme and outrageous"

act MUST be extreme and outrageous, simple insults are not actionable; courts consider the totality of the circumstances

private nuisance

actionable invasion of a possessor's interest in the use and enjoyment of his land

intentional infliction of emotional distress (dual intent) (if claim for iied, also claim for nied)

extreme and outrageous conduct by defendant with Intent to cause severe emotional distress, which would cause emotional harm in a reasonable person and does cause actual severe emotional distress as a result

posecai test 2: prior similar incidents test

foreseeability is established by evidence of previous crimes on or near the premises. The idea is that a past history of criminal conduct will put the landowner on notice of a future risk. Courts consider the nature and extent of previous crimes, as well as their recency, frequency, and similarity to the crime in question

strict liability: products, design defects, reasonable alternative design test

foreseeable risks of harm could have been reduced by adoption of a reasonable alternative design that was technologically feasible at time of production, the omission of which renders the product not reasonably safe

posecai test 1: specific harm rule

landowner does not owe a duty to protect patrons from the violent act of a third parties unless he is aware of specific, imminent harm about to befall them

implied assumption of risk (minority)

no conscious prior agreement between the parties that plaintiff has assumed the risk, but it can be implied

negligent infliction of emotional distress

no duty not to inflict emotional distress unless 1. bystander, 2. negligence with regards to body of close relative, 3. no/ misnotification of close relative's death, 4. zone of danger, 5. exposure to particularly dreaded disease or toxin, 6. misdiagnosis of a deadly or dreaded illness

firefighter rule

no duty to emergency professionals who are injured due to inherent risk of job

governmental immunity: state (majority)

no immunity for ministerial acts; immunity from "planning" discretionary acts (ex. formulation of a policy), no immunity for "operational" discretionary acts (ex. following the policy)

public duty doctrine

no private duty of care unless 1. express promise made, 2. knowledge that inaction could lead to harm, 3. detrimental reliance, 4. direct communication

loss of chance formula

((survival b4 negl) - (survival after negl)) / ((100%) - (survival after negl))

implied assumption of risk elements

(1) plaintiff was aware of the risks, (2) plaintiff could appreciate the magnitude of the risk, (3) plaintiff voluntarily consented to taking the risk

strict liability elements

1. does strict liability apply to the "cause" of harm? 2. was defendant's (animal/dangerous activity/product) a cause in fact? 3. was defendant's (animal/dangerous activity/product) a proximate cause? 4. injury?

affirmative duty: special relationships recognized by courts

1. common carrier with passengers; 2. innkeeper with guests; 3. business/other possessor of land with lawful public; 4. employer with employee (in imminent danger or helpless due to injury/illness); 5. school with students; 6. landlord with tenants; 7. custodian with those in custody (if custodian is required by law to take custody or custodian has superior ability to protect); 8. co-adventurers

factors considered in forming special relationships

1. defendant could better anticipate harm; 2. defendant has superior knowledge; 3. plaintiff is vulnerable; 4. plaintiff placed trust in defendant; 5. plaintiff expected protection; 6. defendant had financial gain

exceptions to nonfeasance duty rule (affirmative duties)

1. defendant's conduct created the risk; 2. special relationship between plaintiff and defendant; 3. defendant voluntarily chose to rescue; 4. special relationship between defendant and third party wrongdoer

iied affirmative defenses: self-defense

1. does defendant have opportunity to retreat? 2. words alone do not suffice; need to be accompanied by an actual offer of physical violence reasonably warranting fear of serious bodily harm. 3. to determine reasonable cause for apprehension, difference in age, size, and relative physical strength is a matter for consideration. 4. defendant must not have been at fault in provoking the situation to which he then needs to use self-defense

strict liability: products, warning defects, reasonableness test

1. is a warning necessary? 2. if so, is warning reasonable? 3. was warning cause in fact/proximate cause?

affirmative duty: third party special relationships

1. parent with dependant children; 2. custodian with those in custody; 3. employer with employees (when employment facilitates employee's causing harm to third parties); 4. mental health professional with patients; 5. physicians with patients

strict liability: abnormally dangerous activities 6 factor test

1. risk of harm, 2. harm that would ensue if risk materialized, 3. whether the accident could have been prevented by exercise of due care, 4. whether the activity was a matter of common usage, 5. whether the activity was inappropriate to the place it took place, 6. activity's value to community

private right of action

1. violation of statute that caused injury? 2. plaintiff is one of the class for whose particular benefit the statute was enacted for? 3. recognition of a private right of action would promote the legislative purpose? 4. creation of such a right would be consistent with the legislative scheme? (if statute has own enforcement mechanism, no private right of action)

express assumption of risk exceptions

1. when the bargaining was not free and open, 2. service is of great importance to the public, 3. when the underlying activity is necessary, 4. notice of risk is not adequate on the waiver, 5. when there is a statute

learned hand formula

Burden of adequate precautions < Probability of possible injuries x (L) gravity of foreseeable injury ((breach))

strict liability: abnormally dangerous activities restatement test

activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercise by all actors and activity is not a matter of common usage

risk rule

actor's liability is limited to those harms that result from those risks that made the actor's conduct tortious (no regard to intervening or superseding causes)

comparatvie fault: multiple defendants

aggregate all defendants' percentage of fault to see if plaintiff can recover

joint and several liability

all defendants owe all damages to plaintiff; if one defendant cannot pay percentage of damages for some reason, other defendants must pay

battery (single intent)

an act intended to cause, and does cause, an offensive contact or unconsented touching or trauma (though no intent to cause injury is necessary)

trespass (single intent)

an actionable invasion of a possessor's interest in the exclusive possession of his land (intent to contact land, not necessarily intent to contact someone else's land)

strict liability: products, manufacturing defects, consumers expectations test

anyone who sells a product in an " unreasonably dangerous defective condition," as determined by "ordinary consumer expectations"

strict liability: products, manufacturing defects, restatement 3d test

anyone who sells a product that "departs from its intended design

duty

every person owes a duty to perform risk creating conduct reasonably

strict liability: products, manufacturing defects

article placed on the market and used as intended proves to have a defect that causes injury to a human being

posecai test 4: balancing test

balances the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of third parties. In determining the duty that exists, the foreseeability of harm and the gravity of harm must be balanced against the burden imposed on the business to protect against that harm. Under this test, the high degree of foreseeability necessary to impose a duty to provide security will rarely, if ever, be proven in the absence of prior similar incidents of crime on the property (jury decides acts and prior incidents)

"but for" test

but for defendant's conduct, plaintiff would not have suffered injury

survival act

can recover if decedent was under emotional distress right before death

dual intent tort

contact and ensuing injury was intended

single intent tort

contact was intended

express assumption of risk (argument for express includes argument for implied)

contract where plaintiff signs a document and openly agrees to not hold defendant responsible for potential harm associated with known and inherent dangers of a particular activity (NOT for intentional torts)

comparative fault: medical situations (majority)

courts never allow comparative fault defense by medical professionals against patients

vicarious liability: nondelegable duties

dangerous/peculiar risks; inspection of property and chattels

NIED: bystander

death or serious bodily injury of someone with whom bystander shares a marital or intimate family relationship, that the bystander observed

iied affirmative defenses: self-defense, third party (minority)

defendant can protect third party as he would protect himself if the defendant correctly or reasonably believes that: circumstances are such as to give the third party a privilege of self defense, and defendant's intervention is necessary for the protection of the third party

iied affirmative defenses: protection of property

defendant has a right to protect his property, but only in ways that are reasonable; can't use deadly force to defend property without fear of imminent serious bodily harm or death

iied affirmative defenses: necessity (typically trespass cases)

defendant intentionally did something to protect something else

iied affirmative defenses: public necessity

defendant is entitled to damage of property to protect the larger public

eggshell skull rule

defendant is liable for the full extent of the harm, including unforeseeable injuries that result

strict liability: animals

defendant knew or should have known that domestic animal in question is more dangerous than other animals in its breed or class // all harm done by wild animals except to trespassers

direct causation: polemis

defendant liable for all direct consequences of his wrongful conduct despite the occurrence of an unforeseeable type of injury to plaintiff

directed verdict for defendant in spite of res ispa loquitur

defendant must prove by uncontradicted evidence 1. harm caused by some outside agency over which he had no control; 2. harm was the kind which commonly occurs without negligence on the part of anyone; OR 3. harm could not have been avoided by the exercise of all reasonable care

several liability

defendant only owes damages he was individually responsible for

proximate cause foreseeability test

defendant should have foreseen the type, extent, and manner of plaintiff's injury (specific harm)

iied affirmative defenses: private necessity

defendant was acting for his own interest; cannot escape compensatory damages, but can escape punitive damages

loss of chance doctrine

doctor's negligence caused plaintiff's harm >50%: plaintiff can recover for all damages; doctor's negligence caused plaintiff's harm <50%: plaintiff can recover for percentage of survival loss

vicarious liability questions

does employer control the manner and means of work? if yes, more than likely an employee; if no, more than likely an independent contractor other factors to consider: length of employment relationship, method of payment, who provides tools and place of work, taxes, social security benefits

strict liability: products, warning defects, reasonableness test factors

does it adequately indicate the scope of danger? does it reasonably communicate the extent or seriousness of the harm that could result from using the product? how prominent is the warning? is it appropriate for its audience? would it do more harm than good to provide extra warning?

attractive nuisance doctrine

duty to children, and adults attempting to rescue children, trespassing due to artificial (or nonregular) condition upon land if: owner knows or has reason to know that children are likely to trespass at location; AND the condition is one of which landowner knows or should know will involve an unreasonable risk of death or serious bodily injury to children; AND children do not discover the condition or realize the risk; AND the utility to the landowner of maintaining the condition and the burden of eliminating the danger are slight as compared to risk involved; AND the landowner fails to exercise reasonably care to eliminate the danger or otherwise protect the children

landowner liability: trespassers (no permission to be on land); foreseeable trespassers

duty to not willfully or wantonly injure a trespasser

restatement got rid of all distinctions except for flagrant trespassers (on land with bad purpose)

duty to not willfully or wantonly injure a trespasser(?)

affirmative duty: voluntary rescue

duty to rescue reasonably; no duty to continue rescue attempt unless plaintiff in imminent peril

landowner liability

duty to rescue those who become injured on land

landowner liability: licensees (permission to be on land but landowner has no interest), known trespassers (landowner knows someone is on their land without permission), implied licensees (ex. salesmen)

duty to warn/protect/rescue from known dangers

landowner liability: invitees (permission to be on land and landowner has interest/land open to public)

duty to warn/protect/rescue from known dangers and dangers he should have known of

some jurisdictions got rid of distinction between invitees and licensees

duty to warn/protect/rescue from known dangers and dangers he should have known of

iied affirmative defenses: consent, sports

even if defendant violates the rules of the game, he may not be liable if it falls within "normal risks" associated with playing the sport

governmental immunity: state (minority)

governmental function (immune) or proprietary function (not immune): 1. undertaking traditionally provided by local governments? 2. undertaking can only be engaged by governmental agency? 3. substantial fee charged? 4. if fee, profit made?

contributory negligence

if plaintiff's negligence helped cause harm, cannot recover

iied affirmative defenses: self-defense, third party (majority)

if third party would have been privileged to use force, defendant is protected

pro tanto rule

ignores the percentage of responsibility assigned to the settler and reduces the amount owed by the remaining defendants by the actual dollar amount of the settlement

governmental immunity: federal

immunity from discretionary acts, strict liability, military activities, any postal matters

strict liability: products, design defects, crashworthiness doctrine

imposes liability on manufacturers for design defects which only enhance injuries rather than cause them

strict liability: products, manufacturing defects, res ipsa loquitur test

incident was a kind that ordinarily occurs as a result of a product defect and not solely the result of causes other than product defect existing at the time of sale or distribution

vicarious liability: employee

is negligent act done within the scope of employment: of the kind he is employed to perform AND occurs substantially within authorized time and space limits AND it is actuated at least in part by a purpose to serve the master if all the above are yes, employer is liable; if no to one, employer is not liable

express assumption of risk questions

is there a valid contract? does the contract cover the risk? should we enforce it based on public policy?

negligence per se special excuses (for jury to decide)

it was safer, under the circumstances, to disobey the statute than to follow it; the defendant exercised reasonable care to comply with the statute; the defendant had a sudden incapacity and for that reason was unable to comply with the statute; statute is confusing; defendant did not and should not have known statute applied

direct causation: wagon mound

majority emphasize foreseeability and assert that when an unforeseeable result occurs, it is unfair to hold the defendant liable

strict liability: products, warning defects, learned intemediary doctrine (majority)

manufacturer's duty to warn extends only to doctors in cases where there is a physician/patient relationship

factual causation

more often than not, defendant's negligence would have caused plaintiff's injury

alternate liability rule

multiple defendants who could be cause in fact of harm, but only one is, the burden shifts to defendants to prove cause in fact; if they can't, then both owe plaintiff entire damages

concerted action theory

multiple defendants working in concert, both are cause in fact and responsible for harm

overdetermined cause test

multiple, independent defendants sufficiently causes plaintiff's injuries, each defendant individually responsible for all of plaintiff's harm

duty analysis 4: what is plaintiff's claim about what the defendant did wrong?

negligent action (misfeasance) defendant has the duty to do risk-creating conduct reasonably; negligent inaction (nonfeasance) defendant has no duty to use reasonable care to warn, protect or rescue from a preexisting risk

directness/remoteness test

negligent actor is not responsible for the consequences that are not "direct" (reasonably foreseeable)

economic loss rule

no recovery for pure economic loss except (minority): special relationship, contractual relationship, particularly foreseeable loss to a particular and foreseeable plaintiff, commercial fishermen, professional negligence (malpractice), fraud, interference with business relations

vicarious liability: independant contractor

no vicarious liability unless conduct by the principal that would lead a person to reasonably believe that another person acts on the principal's behalf AND acceptance of the agent's service by one who reasonably believes it is rendered on behalf of the principal (apparent agency)

iied affirmative defenses: construed/implied-in-law consent

normal, everyday contact, cultural norms or court will say as a matter of public policy

aggravation of injuries

one who negligently injures another is also responsible for any aggravation of injuries suffered by plaintiff during the course of medical treatment

proximate cause: rescuers

original tortfeasor liable for injuries suffered by those going to the rescue of those imperiled or injured by the original tortfeasor

foreseeability test: intervening causes

original tortfeasor proximate cause for foreseeable intervening causes; original tortfeasor not proximate cause for unforeseeable intervening causes (superseding causes)

probabilistic recovery for future harm

plaintif can bring cases for future harm and recover for them: mesothelioma cases, if chance of future injury more likely than not

joint control theory

plaintiff can prove that each defendant had the right to and did control the instrumentality of harm

comparative fault

plaintiff can recover proportionate damages from defendant that plaintiff was not responsible for

iied affirmative defenses: consent

plaintiff consented to the activity, the normal types of injuries that come with activity, the manner of how injury occurred, and probability that it would occur // (majority) plaintiff cannot consent to illegal activities

iied affirmative defenses: express consent

plaintiff explicitly gives consent

strict liability: products, warning defects, read and heed

plaintiff is entitled to rebuttable presumption that if plaintiff were warned, he would have heeded warning, and defendant is entitled to rebuttable presumption that if defendant supplied warning, plaintiff heeded it

pure comparative fault

plaintiff recovers damages, even if plaintiff is 99% at fault and defendant is 1% at fault

modified comparative fault 1

plaintiff recovers only if plaintiff's fault is less than defendant's fault

modified comparative fault 2

plaintiff recovers only if plaintiff's fault is less than or equal to defendant's fault

duty analysis 3: is there a policy or principle against creating a duty?

policy or principle against creating a duty means no duty; no policy or principle means duty analysis continues

strict liability: products, warning defects

product needed a warning and didn't have it or warning inadequate in some way

intentional infliction of emotional distress: "extreme and outrageous" exception

public officials/celebrities: plaintiff may not recover for a tort of IIED without showing that (a) statements made against plaintiff were false, or with reckless disregard as to whether or not they were true, and (b) made with actual malice.

standard of care: physicians

strict locality standard (minority): what is the standard physicians use in location; nationwide standard (majority): what is the national standard for physicians

NIED: zone of danger

reasonable fear (or impact) of immediate, personal injuury that causes "substantial" bodily injury or illness

pure comparative fault: proportionate share approach

reduces total amount all non-settling defendants owes to plaintiff by the percentage of responsibility assigned to the settler

strict liability: products, warning defects, types of warnings

safety instructions; dangers associated with using it improperly; notification of an irreducible risk associated with the product

prima facie evidence

sufficient evidence from plaintiff to establish an element of the cause of action resulting in summary judgement for plaintiff; sufficient evidence from defendant that a reasonable jury could find for defendant resulting in case going to jury

posecai test 3: totality of the circumstances test

takes additional factors into account such as the nature, condition, and location of the land, as well as any other relevant factual circumstances bearing on foreseeability. The application of this test often focuses on the level of crime in the surrounding area and courts that apply this test are more willing to see property crimes and minor offenses as precursors to more violent crimes. In general, this test places a great duty on business owners to foresee the risk of criminal attacks on their property

affirmative defenses (ex. contributory negligence, comparative fault, assumption of risk)

the burden of production shifts to defendant to prove plaintiff did something to limit or eliminate plaintiff's liability

assault (dual intent)

threatening physical act or offer of corporeal injury that causes reasonable fear of imminent bodily harm

proximate cause: acts of God

to the extent that these are considered to be reasonably foreseeable, they will not serve to cut off the responsibility of a negligent defendant

duty analysis 2: was the plaintiff foreseeable?

unforeseeable plaintiff means no duty; foreseeable plaintiff means analysis continues

duty analysis 1: was the risk foreseeable?

unforeseeable risk means no duty; foreseeable risk means analysis continues

concerted action rule

unknown instrumentality; unknown defendant, but all defendants had the right to control

res ipsa loquitur

unusual occurrence that wouldn't happen without someone's negligence; defendant has sole control over instrumentality og harm

strict liability: products, design defects, risk-utility test factors

usefulness and desirability of the product; probability and magnitude of potential injury; relative risk/utility of reasonable alternative designs; manufacturer's ability to eliminate unsafe characteristics; user's ability to avoid danger; user's probable awareness of danger; manufacturer's ability to spread the loss; price of product

negligence per se

violation of a safety statute establishes breach of duty as a matter of law, unless defendant can offer some special excuse

negligence per se questions

was a safety statute violated?; is the plaintiff in the class of people that the statute was meant to protect?; is the statute meant to protect the plaintiff from the harm that occurred?

iied affirmative defenses: apparent consent

what a reasonable person interacting with another person would conclude as consent under the prevailing circumstances

breach of duty standard

what would a "reasonable person" do "under the circumstances" (foreseeability factor)

breach of duty standard: child

what would a reasonable person of like age, intelligience, and experience do under the circumstances; no breach for children under 7; children engaging in adult (dangerous) activities held to adult standard

breach of duty standard: doctor, lawyer, accountant, architect, engineer

what would a reasonable practitioner do under the circumstances

vicarious liability

when a status relationship exists between 2 parties, the principal can be held liable regardless of fault

iied affirmative defenses: consent, emergency doctrine

where committing tort is necessary to save plaintiff's life, courts will imply consent UNLESS plaintiff explicitly states that she does not want those measures to be taken

substantial factor test

whether defendant's conduct was a more substantial factor in causing plaintiff's harm

strict liability: products, design defects, consumer expectations test (minority)

whether the product is unreasonably dangerous to the consumer or user of that product given the conditions and circumstances that foreseeably attend use of product (NO expert witnesses)

strict liability: products, design defects, risk-utility test (majority)

whether the product's risk outweighs its utility and whether defendant could have removed danger without severe impact on product's utility/price (jury question, expert witness allowed)