Negligence, Strict Liability, Intentional Torts

Risk Utility Analysis

Examining costs, benefits, risks and utility, if magnitude of the risk is greater than the utility of the risk then the risk is UNREASONABLE and duty is breached Elements 1. Probability of Injury 2. Seriousness of potential harm 3. Burden of precaution 4. Utility of defendant conduct

Express Warranty

Explicit promises regarding the qualities of the product Puffery or ambiguous assertions do not equate an express warranty

Intangible Interests

Common-Law restricted claims for conversion with the exception of protected legal property (patent or trademark) or if it merged into identifiable legal interest (check, bond, stock certificate)

Preemption

Compliance with statute can eliminate state product liability claims A doctrine under which certain federal laws preempt, or take precedence over, conflicting state or local law.

Settlement

Compromise between the parties based on assessment of risk and litigation

Takings

Government acquires property for public use under the power of eminent domain, but must provide owner with just compensation

Express Assumption of Risk

Grounded on contractual relationships; the plaintiff explicitly agreed to be subjected to the defendant's conduct (most commonly in the form of writing)

Child Standard of Care

Held to the standard of other children their age -> Considers the child's age, intelligence, and experience -> Mental disability for children may also be considered

Reasonably Prudent Person

Hypothetical person presumed to know basic facts and possess generally common knowledge about the world and their community ->sometimes they are obligated to find out more when faced with uncertainty

Imminent

Immediate, The threat of future harm does not constitute assault

Products Liability (Negligence)

In order for a plaintiff to recover under a negligence theory of products liability, the plaintiff must prove duty, breach, causation, and damages. To establish breach, the plaintiff must show that the product failed to meet ordinary commercial expectations. Damages are limited to personal and property.

Sophisticated User Defense

Individuals or members of professions who do not know or should know about the product's potential dangers

Negligence

Involves liability for UNINTENDED harms, attributable to the defendant because of his *carelessness* and *risk taking* which was created by his failure to avoid *foreseeable* and *unreasonable risks* that cause such injury *Elements* 1. Existence of a FORESEEABLE, UNREASONABLE risk giving rise to defendant's *DUTY* to act 2. Defendant's lack of prudent response= *BREACHING* DUTY 3. *CAUSING* foreseeable but unintended 4. Injuries (actual *DAMAGES*)

Proximate Cause

Legal cause; whether the cause should lead to liability, focuses on (1) the Foreseeability of Risk- whether the actual harms that occurred were reasonable within the scope of negligent risks created by the defendant (2) How the Harm occured- a defendant can try to show that the unusual events were unforeseeable (3) Precise type of harm- doesn't matter, just that the general nature was foreseeable within the negligent risks

Vicarious Liability

Legal doctrine under which a party can be held liable for the wrongful actions of another party

Strict Liability

Liability Imposed without fault 1. Vicarious Liability 2. Abnormally Dangerous Activity 3. Strict Products Liability

Negligent Entrustment

Liability based on carelessness in providing an object to an incompetent operator

Child actors and negligence per se

Most courts view these two things as inconsistent

Joint and Several Liability

Multiple defendant's who acted in concert and created joint risk when failing to perform common or shared duty resulting in indivisible injuries that cannot precisely be allocated (not capable of apportionment) so fair share must be paid

Implied Warranty

Could be imposed by law when stating that goods are fit for the purposes that the buyer specifies (fit for a particular purpose) which they are sold (Florida cannot plead)

Person with Mental Disability Standard

No allowance is made for mental disabilities EXCEPTION: if a person is aware of the dangers when interacting with the mentally disabled person (ex. a nurse) then the mentally disabled person cannot be held liable

Economic (Special) Damages

Damages which are easily calculated, typically out of pocket expenses for things such as medical expenses, past, present and future lost wages, loss of earning capacity, property damage

Eggshell Plaintiff

Defendant takes plaintiff as they find them. they are liable for pre-existing susceptibility for aggravated injuries even if unforeseen

Public Necessity Defense

Defense when a person commits a property tort in an emergency to protect the community as a whole or a significant group of people. Requires no compensation

Causation

Demonstrates a legally sufficient relationship that links the alleged breach and resulting damages

Reasonable Mistake of Fact

Not a defense for intentional torts

Negligent Hiring

Occurs when an employer fails to check an employee's background and the employee injures someone on the job

Unintended negligent trespass

Only actionable if there is proof of damages

Negligent Infliction of Emotional Distress (NIED)

Only applies when damages are for emotional injuries; emotional distress alone will not stand Three types: 1. Impact Recovery 2. Zone of Danger Recovery 3. Bystandard Recovery

Doctrine of Dangerous Instrumentalities Florida

Ownership of dangerous object leads to liability for the negligent use of instrumentalities by others

Independent Contractor

Person or entity whose relationship with the employer is not controlled by methods, means, or details of work

But for test

Plaintiff must demonstrate that 'but for' the defendant's breach, the plainitff's injuries would NOT have occured

Impact Recovery

Plaintiff must show some form of physical impact, even indirect such as a fall while attempting to flee

Zone of Danger Recovery

Plaintiff must show threat to their own physical safety by the defendant's negligence (clearly more foreseeable)

Firefighter Rule

Professionals involved in rescue of other high risk responsibility are precluded from recovering damages against persons who created peril (applies to other professions as well)

Economic Loss Doctrine

Pure economic losses are often not recoverable under negligence unless associated with other physical/property damage

Licensees

Social guest; a person with express or implied permission to enter the premises but the purpose of the visit contains no economic or other benefit to the landowner *Duty to warn about KNOWN, HIDDEN dangers involving condition of the premise*

Common Carriers

Someone who transports goods or people for indiscriminate hire Higher standard of care because patrons are generally at the carriers mercy in terms of cafe and safety

Person with Physical Disability Standard

Standard of care is higher because they must take additional precautions that others would not take in light of their disabilities

Rescue Doctrine

The defendant owes a duty of care to their immediate victim AND those who come to their aid and are injured in doing so

Duty of Ordinary Care

The general rule of duty is that everyone has the duty to avoid foreseeable, unreasonable risks of harm to others

Self- Defense

The legally recognized privilege to do what is reasonably necessary to protect oneself, one's property, or someone else against injury by another. 1. Force and degree must be necessary 2. Defendant had no means of retreat Mistake of fact of force used for defense is allowed IF REASONABLE NOT AVAILABLE TO THE AGRESSOR

Satisfaction of Discharge

The plaintiff is entitled to full compensation and once paid in full the defendant is discharged

Doctrine of Contribution

The plaintiffs full compensation does NOT depend on equal contribution of defendant's -equitable distribution is not the plaintiff's problem

Products Liability

Three types of claims 1. Negligence 2. Breach of Warranty 3. Strict Liability

Consumer expectation test

To determine if the defect rendered the product unreasonably 1. Is the product in a condition not contemplated? by an ordinary consumer 2. Violating their reasonable expectation of safety 3. When used in a reasonably foreseeable manner

Mental Disabilities and Intent

Traditionally: mentally ill actors are liable for intentional torts even if their conduct was a product of their illness Some Courts today: mental illness negates intent is brought in by sudden, unforeseeable delusion

Trespassers

UNKNOWN/UNDISCOVERED- *no duty owed* BUT you cannot treat them with wanton disregard, set traps, or intentionally harm them KNOWN/DISCOVERED- *duty of reasonable care arises*

Unforseeable Plaintiff

Unforeseen victim who is unexpectedly injured by the defendant's conduct

Merger (Florida)

Uninvited Licensee- persons who went upon the premises solely for their own convenience without invitation either expressed or reasonably implied under the circumstances.

Punitive Damages

Used to punish only the most heinous tortfeasors, the defendants conduct was done with evil motive, intent to injure, fraud, etc)

Statutory Violations (Negligence Per Se)

Using legislation to establish what reasonable care is required in the place of common law standards (duty and breach), HOWEVER, the cause of action in these cases remain negligence (with the exception of Dog Bite Statutes, Dram Shop Acts, and Malpractice Claims) Jurisdictions view it either as a rebuttable presumption of negligence or conclusive evidence

Federal Torts Act (FTCA)

Waives immunity for certain types of torts committed by federal government employees under specific conditions and limitations (bars claims based on performance of discretionary function of duty)

Adult activity exception

When a child is undertaking an activity normally undertaken by adults for which adult qualifications are required they will be held to a higher standard

Frolic and Detour

When employee is engaged in conduct with mixed motives *FROLIC*- conduct was so disconnected from job that it is outside scope *DETOUR*- conduct was sufficiently related to the employment in time, place, purpose that it was within scope

Premise Liability

Duty owed from possessor of real property based on conditions of the premises and the plaintiff's status Includes 1. Trespassers 2. Licensees 2. Invitees 4. Merger 5. Attractive Nuisance Doctrine

Shop Keepers Privilege

(1) There must be a reasonable belief as to the fact of theft; (2) The detention must be conducted in a reasonable manner and only non-deadly force can be used; and (3) the detention must be only for a reasonable period of time (hot pursuit) and only for the purpose of making an investigation. (4) No breach of peace

Qualified Immunity

(police); afforded to those engaged in discretionary conduct, lost if acting in bad faith

Immunities

*Common Law Immunities* 1. Charitable Organizations- no immunity today 2. Spousal Immunities- no immunity today 3. Parental Immunities- immunity barred except for in cases of parental discipline, training, supervision *Today Immunities* 1. Public Official/ Statutory immunity 2. Sovereign Immunity

Independent Contractor Exceptions

1) Non Delegable duties- responsibilities for safe operation that ultimately remains with the employer 2) Apparent Agency (Estoppel)- contractor acting on BEHALF of the employer (when one party, by his actions, causes a third party to believe someone is his agent when that person actually has no authority)

Three Types of Defects

1. *Manufacturing Defect*- one in which the product as sold wasn't as it was intended to be made 2. *Defective Design Claim*- the product as it was designed and intended to be posed unreasonable dangers that rendered it defective 3. *Failure to Warn or Instruct*- defendant alleged the product was unsafe because the consumer was inadequately warned or instructed about foreseeable, hidden risks

Implied Assumption of Risk

1. *Primary- "inherent peril"*, some actions involve inherent dangers of risks -> arises when the plaintiff claims the defendant should've taken measures to prevent injuries that can occur through voluntarily taken actions 2. *Secondary- classic implied assumption of risk*; plaintiff knowingly and voluntarily consented to risky conduct, act, or omission that does NOT necessarily reflect some danger inherent to activity in general (ABANDONED DUE TO COMPARATIVE FAULT)

Types of Intentional Torts

1. Battery 2. Assault 3. False Imprisonment 4. Trespass 5. Nuisance 6. Trespass to Chattel 7. Conversion 8. Intention Infliction of Emotional Distress (IIED)

Tests for Cause in Fact

1. But for test 2. Substantial Factor Test 3. Merging Fires (Alternative) 4. Proof for Disease (Alternative) 5. Lost Chances (Alternative)

Economic Loss Doctrine Exceptions

1. Cases where duty of care is independent of the existing contract 2. Damage to property OTHER THAN what was the subject to the contract 3. "Special relationships" involving fiduciary duties 4. Specialized torts primarily grounded in recovery for economic harms (ex. fraudulent inducement) 5. Tort arising outside parameter of conduct itself

Defenses to Product Liability

1. Comparative negligence and assumption of the risk 2. Product misuse 3. State of Art 4. Sophisticated User Defense 5. Preemption

Employer Vicarious Liability Primary Elements

1. EMPLOYEE committed actionable tort 2. which took place within the SCOPE OF EMPLOYMENT 3. And the tortfeasor not an INDEPENDENT CONTRACTOR

Necessity

1. Facing an imminent threat 2. Defendant is privileged to commit a tort 3. Reasonable necessary to preserve some higher more valuable interest Two types: Public and Private

Abnormally Dangerous Activity Strict Liability Depends on

1. How dangerous the activity is- the likelihood and gravity of harm 2. If it's appropriate or especially dangerous in the local, common usage 3. If it's possible to reduce the risks to acceptable levels using reasonable

Battery

1. Intending to cause 2. Harmful or offensive contact 3. Or imminent apprehension of contact where 4. Harmful or offensive contact result

Intentional Infliction of Emotional Distress

1. Intending to cause or reckelessly 2. CAUSING 3. SEVERE SUBSTANTIAL emotional distress 4. Through EXTREME and OUTRAGEOUS conduct

Tresspass

1. Intentionally causing 2. Entry 2. Onto real property of another person

Assault

1. Intentionally causing 2. Well-founded apprehension 3. Of immediate, harmful or offensive contact

Tresspass to Chattels

1. Intentionally interfering or 2. Dispossessing another of chattel possessed by that person 4. Impairing its condition, quality, value, OR depriving the possessor of use for a substantial amount of time 5. Resulting in action damage to chattel or to protected intetests

Alternative tests for Causation

1. Merging Fires 2. Proof involving disease allegedly caused by exposure to toxic substances 3. Lost chances

Types of Intervening Superseding Cause

1. Multiple Tortfeasors 2. The plaintiff's own negligence 3. Criminal Conduct- such causes usually supercede unless original negligence involved a risk of that occurence

Private Necessity Defense

1. Person who damages property must pay for harm actually done 2. As long as the emergency continues, D is entitled to stay on P's land in a position of safety

Defenses to Intentional Torts

1. Reasonable Mistake of Fact 2. Consent 3. Self Defense (and Defense of Others) 4. Defense of Property 5. Necessity 6. Shop Keepers Privilege

Standards of Care for Duty

1. Reasonably Prudent Person 2. Physical Disabilities 3. Mental Disabilities 4. Child Standard of Care 5. Common Carriers 6. Learned Professionals

Methods for evaluating breach

1. Risk Utility Analysis 2. Customary Practices 3. Statutory Violations (negligence per se)

Policy based limitations on damages

1. Statutory Caps 2. Policy Dilemmas that are difficult to prove -Lost opportunity -Mass Tort Claim -Medical Monitoring -Wrongful birth -Wrongful Life -Wrongful Pregnancy

Exceptions to the No Duty to Rescue

1. The defendant is responsible for causing the victims predicament OR making it worse 2. Voluntary Rescue Doctrine 3. Special Custodial Relationship between defendant and plaintiff (pre-existing legal responsibility_ 4. Vicarious liability 5. Premise Liability 6. Negligent Infliction of Emotional Distress

Elements of Res Ipsa Loquitur

1. The plaintiff's injury was caused by an accident that would not normally have occurred without negligence 2. The event was committed by a particular defendant 3. The thing causing the injury was within the exclusive control of the defendant 4. the plaintiff sufficiently eliminated other reasonable causes including their own conduct 5. the plaintiff did not provoke the accident

False Imprisonment

1. Unlawful confinement of another 2. Against their will 3. They are aware if the confinement OR harmed by it 4. And the boundaries affixed by the defendant

Elements of causation

1. Was the defendant's breach a *CAUSE IN FACT* of the plaintiff's injuries 2. Was the defendant's breach a *PROXIMATE CAUSE* of the plaintiffs injuries 3. Were there any *INTERVENING CAUSES*

Voluntary Rescue Doctrine

1. When an actor voluntary promises or undertakes to aid or warn the person in need 2. The person in need reasonably relies on the promise OR a third person reasonably relies and refrains from seeking help elsewhere 3. Undertaking aid increases the risk of harm to the person in need

Conversion

1. intentional exercise of domain or control over chattel 2. Which so seriously interferes with the night of another to control it 2. Where that actor may be justly required to pay the full value of it

Elements of Negligence Per se

1. legislative provision identifies specific conduct that's prohibited or required 2. Defendant violates the provision 3. Legislative purposes include prevention of harm suffered by the plaintiff 4. The plaintiff is within the class of persons protected by the provision 5. Violation is the legally responsible cause (proximate cause) of the plaintiffs injury

Nuisance

1. the act is a legal cause of a invasion of another's interests in the use and enjoyment of land 2. and the invasion is either INTENTIONAL and unreasonable (MUST BE SUBSTANTIAL- gravity of harm outweighs the utility of the actors conduct) or UNINTENTIONAL or otherwise actionable as negligent or RECKLESS liability

ABC Test

1. the individual is free from direction and control 2. the service is performed outside the usual course of business of the employer 3. the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature

Product misuse

A defense against product liability that may be raised when the plaintiff used a product in a manner not intended by the manufacturer. If the misuse is reasonably foreseeable, the seller will not escape liability unless measures were taken to guard against the harm that could result from the misuse.

Attractive Nuisance Doctrine

A doctrine treating a child as a licensee, or guest, rather than a trespasser on land containing an artificial and harmful condition that is certain to attract children

Invitees

A person invited onto the premise primarily for economic benefit of the landowner (or mutual benefit), *Duty of reasonable care owed* If premises are open for public entrants standard still applies

Learned Professionals

Applies to actors who possess specialized knowledge, skill, and training, relevant to the circumstances and must act in accordance with such expertise Higher standard, requires expert testimony on due care established by the profession itself

Apportionment of Damages

Apportioned among the persons who are liable 1. Traditional joint and severable liability 2. Doctrine of Comparative Fault 3. Doctrine of Contribution 4. Satisfaction of Discharge 5. Collateral Sources (Subrogation) 6. Settlements

Defenses to Negligence

Assumption of Risk Statute of Limitations

Apprehension

Awareness

Bystandard Recovery

Bystander must (1) actually witness the event (2) be in close proximity (3) be closely related or a loved one of the victim that suffers severe injury (4) proof of experiencing severe emotional distress

Assumption of Risk

defense against negligence, a plaintiff who agreed to encounter a defendant's careless behavior with ACTUAL KNOWLEDGE of conduct and nature and VOLUNTARILY exposed themselves to the risk with an UNDERSTANDING and appreciation that the risks is not allowed to recover for damages flowing from that conduct

Coming and Going Rule

employee is not acting within scope of employment while traveling to or from workplace EXCEPTIONS: if employees work involves regular travel, employee was conducting some special errand, risks from work are varied into commute and contribute to harm

Intervening Superseding Cause

events that occur, changing the outcome, that breaks the chain of causation and eliminates the defendant's liability

Circumstantial Evidence

facts which tend to establish other facts through inference

Breach

failure to conform ones duty to the applicable standard of care by engaging in an act or omission that creates unreasonable risk of harm to others

Products Liability (Breach of Warranty)

form of strict liability based on failed representation of safety Can either be (1) Express or (2) Implied

Customary Practices

generally not conclusive except for doctors and lawyers, used as evidence to demonstrate unreasonable conduct within a given field Expert testimony required

Castle Doctrine (stand your ground laws)

gives persons the right to use deadly force to defend their property against unwarranted intrusion, still need a threat to life, justifiable

When can a bystander recover for IIED?

if they show 1. Requisite element of intent and that 2. the defendant consciously disregarded the high probability of causing distress in others and 3. PROOF OF PHYSICAL EVIDENCE

Public Duty Doctrine

insulates public entities and officials from liability for failure to act on premises, they *generally owe no duty of care to any particular individual in society* Ex. 911- plaintiff must establish owed duty based on a. special relationship

Collateral Source

when insurance (or rich uncle) can pay, should the defendant be liable still? Subrogation- taking the legal place of another, government and insurance will pay off plaintiff's injuries then go after the wrongdoer (defendant)

No Duty to Rescue

the defendant has NO DUTY to rescue EVEN if they safely could do so

Employer Vicarious Liability

the liability of an employer for acts of his or her employees in the course of business 1. *Control*- employee acting on behalf of an employer who has the right to control their conduct and should be responsible for their wrongdoing 2. *Enterprise Risk Theory*- since employer directly benefits from his employees be must also incur risks 3. *Respondeat superior*- "let the master answer", a form of liability that imposes no-fault responsibility on the principle for the actions of his agent

Damages Negligence

the plaintiff suffered a legally recognizable injury

Sovereign Immunity

the principle that a sovereign government cannot be taken to court unless it agrees to be sued

Indemnity

the responsibility of one party for the liability of another, most commonly arising out of contractual obligations

Defense of Property

the use of reasonable force, which would otherwise be illegal, to defend your home or other property Must be done in a hot pursuit and involve no breach of peace DEADLY FORCE NOT ALLOWED

Intent

to act with 1. desire/ purpose or 2. Substantial certainty of causing a particular, specified consequence

Consent

to the willing no injury is done, objective standard that can be implied by circumstances 1. Subjective Voluntariness 2. Knowledge and understanding of conduct being consented to 3. Capacity to consent (induced through duress and coercion is invalid) Possible that consent is invalid if the plaintiff was misled about the consequences

Res Ipsa Loquitur

"the thing speaks for itself", a doctrine where negligence can be inferred because an event occurred if it's the type of event that would not occur in the absence of negligence. Allowing a plaintiff to get to a jury to overcome the burden of proving that the defendant's negligent conduct is a result of their injury when there is an ab

Doctrine of Comparative Fault

Allocating a percentage of fault to each party, including the plaintiff, which reflects the responsibility of damages

Confinement

Absent of a reasonable means of escape, Can also be accomplished through threats to the plaintiffs interests, personal property, well being that compels them to remain in place No time limit A person is not titled to compensation for injuries sustained during an unreasonable means of escape

Scope of Employment

Actions performed by employees relating to the kind of work that they were hired to perform Done during work hours, at location and serving the interests of the employer NOT IN SCOPE IF CONDUCT WAS MOTIVATED BY THE EMPLOYEES PERSONAL INTERESTS

Cause in Fact

Actual cause, plaintiff must prove that more likely than not the defendant's breach was one of the necessary factual causes of their injury

Real Property

Actual land or anything permanently affixed to land (airspace above and earth below)

Duty

The *legal obligation to conform one conduct to the standards set by law to use reasonable care* for the protection of others against unreasonable risks of harm

Authorized Entry

a conditional or restricted consent to enter land that creates a privilege to do so only as far as condition/restrictions are complied with Limited and can be withdrawn at any time

State of Art

a defense that the defendant's product or practice was compatible with the current state of technology available at the time of the event in question

Transferred Intent

a person who intends to harm one individual, but unintentionally harms a second person, can be liable to the second victim for an intentional tort Can be transferred between people and intentional torts (assault, battery, trespass to chattel, trespass to land, false imprisonment)

Substantial Factor Test

test used when there are multiple sufficient causes that each have caused the plaintiffs injury, the defendant's conduct had such an effect in producing the harm that it would lead a reasonable man to regard it as THE cause

Covenant not to sue

legal fiction; agreement where the plaintiff doesn't surrender claims but promises not to sue in exchange for payment

Non-Economic (General) Damages

less objectively quantifiable harms; pain and suffering, loss of enjoyment of life/activity, loss of companionship, physical disfigurement

Chattel

moveable personable property

Vicarious Liability

no duty owed by employer for acts of contractors UNLESS 1. Non-delegable duty 2. Apparent agency 3. Employer controlled specific aspects of the contractors work that the tort arose from 4. Employer owns work site

Void

no legal authority

Offensive contact

offensive to a reasonable persons sense of dignity

Direct Evidence

physical evidence

Harmful contact

physically painful contact including injury

Voidable

potential to be voided

Police Powers

powers of the states to protect the public health, safety, morals, and welfare of the public

Product Liability (Strict Liability)

sellers of a product may be held liable without regard to fault for injuries caused by unreasonably dangerous, defective products Plaintiff must show 1. the defendant is a commercial supplier 2. the product was defective and unreasonably dangerous 3. the product was substantially unchanged from the time of the sale with regards to the defect 4. the defect caused injuries (personal or to property itself)

Public Official/ Statutory immunity

some officials are entirely immune even when the conduct was carried out with malice

Rebuttable Presumption of Negligence (Negligence Per Se)

states that requires the defendant to prove that his conduct WAS reasonable despite the statutory violation

Conclusive Evidence (Negligence Per Se)

states that view negligence per se violations as negligent (nearly strict liability) and are restrictive in allowing excuses

Statute of Limitations

statutory periods in which legal claims can be brough to (1) prevent unfairness and (2) create finality for potential liabilities Issues 1. Classification 2. Timing 3. Tolling, Exceptions, Repose

Abnormally Dangerous Activity

strict liability is imposed for any activity that (1) creates a foreseeable and highly significant risk of harm and (2) is not one of common usage