Tort Law Concepts

Respondeat Superior

("Let the master answer") an employer is vicariously liable for the behavior of an employee working within his or her scope of employment

Situations where joint and several could apply

(Modern trend is to go with comparative based on %) 1. indivisible injury - one injury done by two people 2. Concerted action - group conspiring to commit tort 3. Conspiracy of silence - none of you will tell us who did it so burden is on group or all are liable 4. Alternative liability - we know one of the group did it but evidence cannot tell which so both are liable

Why would a court award damages while awarding a private necessity defense?

(Policy justification) If there is private necessity defense with damages awarded then the ∆'s will not have to eject people and hurt more people because ∆ will be compensated for the trespassers damages. (aligned incentives argument)

The main test for actual causation

(but for test) The injury would not have occurred "but for" the defendant's carelessness

Medical Witness Test

(courts have abolished the geographic restriction, currently practicing restriction, and same field restriction) Medical witnesses must have the education and practice experience to testify on the medical subject matter.

Res Ipsa Loquitur Purpose

(means the thing speaks for itself) - Shifts the burden of proof from the plaintiff to the defendant once res ipsa is proved - Allows there to be recovery for plaintiffs that do not have enough information on their injuries

Directness argument for proximate cause (Polemis directness test)

(minority argument that should only be brought up to be knocked down) If the plaintiff's action was a direct cause of the damages, then foreseeability does not matter. They say its more of time and space thing. If it is in a reasonable time and place around the carelessness and it was direct cause then the defendant proves proximate causation.

Absolute v. Strict liability

- Absolute liability: no fault liability (you are on the hook no matter what) - Strict liability: do not need to prove carelessness but there needs to be something like a defect or partaking in an inherently risky activity (less standard than carelessness of negligence)

What types of damages are taxable?

- Any damages received on account of a physical injury is tax free, unless its punitive damages (no tax for non-economic damages) - Therefore, pure economic and emotional damage with no physical injury is taxable

Elements π must prove in a modern products liability case: defect was present at the time of purchase

- Easier to prove the closer the defect occurs near the initial sale of the property - Use circumstantial evidence like (I remember buying it with the defect) - If no evidence then try malfunction theory (res ipsa type argument): the injury itself shows that the product was defective

What is the standard for a comatose patient trying to recover pain and suffering and loss of enjoyment of life?

- Loss of enjoyment of life is usually a sub-category included in the pain and suffering amount for damages because they both cause damages for emotional harms. - Loss of enjoyment of life and pain and suffering need some level of cognition to recover

Primary Assumption of the Risk v. Secondary Assumption of the risk

- Primary Assumption = risk is inherent without any carelessness involved, π assumes the risk by partaking, and π should be completely barred - Secondary Assumption = risk that is created by ∆'s carelessness, π assumes the risk, but π can still recover reduced damages based on comparative fault

Factors that differentiate an employee and an independent agent/contractor

- Primary factor = the right to which the hirer can control the agent and the means in which the agent performs their duties - Secondary factors: the amount of supervision, the skill required to do the work, whether the principal or agent supplies the tools, length of time, payment schedule, and more

A sues B and C for damages of 50,000, and the trial court finds that B and C are both liable for 50% each. (therefore both are liable fro 25,000 each). B settles before the jury verdict for 10k, so how much will C have to pay? (two standards)

- Pro Tanto Standard: Some states say C must pay the 40k to meet the jury verdict because B's interest is extinguished by the settlement. Plaintiff ends up with full relief. - Proportional Share Standard: Some states say C only has to pay what they are at fault

What can the court not take into account when giving out punitive damages?

- Punitive damages must not take into account the harm done by others or to others not in front of the court - Punitive damages must not take into account the defendant's financials

Joint and Several Liability vs. Several Liability only

- Several liability only: defendants are only liable based on the percentage at fault; therefore, manufacturers who are not present in the case do not pay and plaintiffs recover less than 100% - Joint and Several Liability: plaintiffs can get 100% of damages from one defendant, but then the defendant can sue other co-defendants that did pay

How different states treat hold harmless agreements?

- Some states do not uphold any hold harmless agreements due to public policy - Some states use the Tunkl factors - Some states go with totality of the circumstances standard that looks at the Tunkl factors and the relationship of the business and the public

Discretionary actions for gov. entities

- anything that requires the government to decide based on public policy concerns (usually involves spending resources on other more pressing matters); -however, discretionary immunity only applies when the government makes the decision if there is a reasonable basis for the decision (governments must make decisions backed by some research)

Breach foreseeability v. Proximate Cause foreseeability

- breach: did the action or inaction cause foreseeable danger - proximate cause: was the injury foreseeable based on the danger

Elements π must prove in a modern products liability case: Causation

- defect was a but for cause for π's injuries - Test: was the injury foreseeable from the use of the defective product

Most common public policy tactics

- ruling this way would cause an extreme scenario to persist -ruling this way would go against the legislative purpose -ruling this way would cause a windfall for someone that should not be rewarded (bad incentives) -the rule used would create a floodgate of litigation - ruling would go against the purpose of the tort system - ruling this way would eat up an entire rule that the court allows

Tests for design defects: reasonable alternative design (RAD) (what does the court look at?)

- the essential inquiry is whether the design chosen was a reasonable one from among the feasible choices of which the manufacturer was aware or should have been aware of 1. Π must first bring another reasonable alternative design that is safer (maybe from a competitor or expert opinion) 2. Then the court goes through a cost benefit analysis will see if the design chosen was reasonable based on the risk versus the benefit of the design choice (hand formula)

Qualifier to discretionary immunity for gov. entities

-discretionary immunity only applies when the government makes the decision if there is a reasonable basis for the decision -governments must make decisions backed by some research -However, once they do the research then that research cannot be second guessed -However, if the government realizes a risk and decides to act on it but takes too long in acting then the government could be found liable.

What factors must discretionary actions weigh to qualify as such?

-must weigh public policy decision of economic, social, and political factors (small money concerns are not enough to prove to prove discretionary immunity) -Public policy: If only small amounts of money would constitute as discretionary funds then that would apply to everything

When is an independent contractor under apparent authority, which makes the business/principal vicariously liable for the agent's actions? (three part apparent authority test)

1. A representation made by the principal employer 2.Reliance on that representation by the third party 3. And a change of position by the third party based on the reliance of the representation

Factors that show false imprisonment

1. Actual or apparent physical barriers 2. Overpowering physical force 3. Threats of physical force 4. Asserted legal authority

Res Ipsa Loquitur Elements

1. Based on the accident, it normally would not happen without the carelessness of another 2. The instrumentality that caused injury was in the exclusive control of the defendant 3. The injury had nothing to do with the plaintiff (contributory negligence)

Second restatement rule for strict liability (6 factors for dangerous activities)

1. Existence of a high degree of risk of harm 2. Likelihood of the harm 3. Inability to eliminate the risk by the exercise of reasonable care 4. Extent to which the activity is not a matter of common usage 5. Inappropriateness of the activity to the place where it is carried on 6. Extent to which its value to the community is outweighed by its dangerous attributes

Factors that could change consent

1. If a party lied about the risk then consent given is invalid 2. If ∆ has a reasonable belief that π has given consent than that is a defense that will work

Process for working through governmental immunity question

1. Is the action discretionary or ministerial 2. If discretionary, was the action backed by research or did the government fail to act after a decision was made? 3. If ministerial go through elements of negligence 4. Was the action careless (breach) 5. Was the action misfeasance or nonfeasance? 6. If misfeasance then duty to everyone and if nonfeasance go through cuffy test or other exceptions

Can consent be given for illegal acts (Majority view v. Minority view)

1. Majority: consent does not matter and you can be found civilly liable regardless of consent because this makes people more hesitant to do illegal acts. (discouraging illegal acts) 2. Minority: consent should hold because they both consented to the danger and the plaintiff should not get a windfall for engaging in the illegal activity (π's should not benefit from your illegal activity)

Policy reasons for applying strict liability to products liability

1. Manufacturer is responsible for the injury and should have to pay 2. Manufacturer is better equipped to handle the loss through raising prices or insurance 3. Manufacturer should have the obligation to keep others safe by putting the product on the market 4. Deterrence: If manufacturer is on the hook then they will make their products more carefully 5. Evidentiary burden/litigation disparity: Manufacturer is in the better position to litigate, hire experts, have more information about production and defects 6. This already being done for food products at the time

Third restatement rule for strict liability (two part test)

1. Necessarily involves a risk of harm which cannot be eliminated by the exercise of the utmost care 2. Is not a matter of common usage

Duty imposed by statute (elements)

1. The plaintiff is one of the class of whose particular benefit the statute was enacted 2. Whether recognition of a private right of action would promote the legislative purpose 3. Whether creation of such a right would be consistent with the legislative scheme

Hypo: Usually there is no deadly force allowed fro defense of property, how would the answer change if there is a sign saying there is a spring gun?

1. Then their defense argument changes to consent/assumption of the risk rather than self-defense for property. If you went in knowing about the gun, then you consented to be shot 2. The more vague the warning the less powerful the consent defense

When are punitive damages best suited for ordinary negligence?

1. When the criminal justice system fails to deter defendant 2. When the act causes a modest harm that is hard to catch

Cuffy Test: Elements of the exception for government's duty to keep safe (when does a government's action constitute an agreement that creates a duty to keep safe?)

1. an assumption by the municipality through promises or action, of an affirmative duty to act on behalf of the party injured 2. knowledge that inaction could lead to harm 3. some form of direct contact between the municipality's agents and the injured party 4. that injured party's justifiable reliance on municipality's undertaking

Requirements for IIED

1. conduct was intentionally or recklessly inflicted 2. Conduct was outrageous and extreme 3. Causes severe emotional distress (4. No other claims fit the set of facts; should be a gap filler only)

Elements π must prove in a modern products liability case

1. π must suffer an injury 2. ∆ sold a product 3. ∆ is a comercial seller 4. Defect was present at the time of purchase 5. Causation (both actual and proximate must be met)

Battery elements

1. ∆ acted (voluntarily) 2. intending to cause a harmful or offensive contact 3. the harmful or offensive contact occurred

Assault elements

1. ∆ acted (voluntarily) 2. intending to cause apprehension of an imminent harmful or offensive contact 3. the act caused apprehension

How should a π choose between bringing a negligence v. intentional tort claim?

1. ∆'s financial positions (intentional torts cannot be discharge and negligence can) 2. ∆'s insurance (most policies do not cover intentional torts) 3. Proximate cause (relaxed proximate cause for intentional torts) 4. Damages (punitive damages allowed in intentional torts but not usually in negligence

Damages for wrongful birth claims (limited recovery v. non-limited recovery)

1.Limited recovery: all medical expense and lost wages but no child rearing (healthy child's benefit could outweigh the cost and parent had the option to adopt or abort) 2. Non-limited: all medical expenses and child rearing cost (parents should not have to make such a decision and cost is only offset sometimes)

Bystander NIED Claims (elements)

1.The death or serious physical injury of another caused by defendant's negligence 2.A marital or intimate familial relationship between plaintiff and the injured person 3. Observation of the death or injury at the scene of the accident (watching someone on video never counts because it lacks imminence) Policy: the court draws many arbitrary lines to cut down on the amount of people who can claim NIED; the normal onlooker should not be able to claim, the π must have a heightened reason to make a claim (close relationship + horrific injury + proximity)

Birkner Criteria for determining scope of employment for respondeat superior

1.The employee's conduct must be in general what they were hired to perform 2.Conduct must be within the hours and spatial area of their employment 3.The employee's conduct must be motivated by the purpose of serving the employer

How does the judge evaluate if an expert witness can speak on the topic? (What factors are used?)

1.Whether the theory can be tested 2.Whether the theory as been subject to peer review 3.What is the known rate of error 4.Whether the theory is generally accepted (However, these standards will be more relaxed when the experts must testify on unknowable topics)

There has been an accident in which A has suffered damages of 100,000 and has brought suit against B, C, and D. A trial has established that the relative shares of fault are A -40%, B - 30%, C- 10%, and D - 20%. Assume all are solvent, what result?

A collects 30k from B, 10k from C, and 20k from D (answer no matter what system)

Public nuisance and the economic loss rule

A private individual may not recover damages for economic loss suffered from a public nuisance if the loss is commonly suffered by members of the community. Public Policy reason: the court usually requires the individual to have a different kind of harm than the one suffered by the entire community because they are trying to cut down on the amount of possible cases that could arise

Express assumption of the risk: General test for upholding hold harmless agreements regardless of public policy concern (test for the language)

A reasonable person must be able to know that they are signing away their chance to sue for negligence (i.e. large capital letters or bold face font)

When is there a special relationship between parties in nonfeasance?

A special relationship giving rise to a duty is present for innkeepers, common carriers, possessors of land who open their property to the public, and persons who have custody of others who are deprived of normal opportunities of self-protection.

superseding cause

An intervening event, occurring after the alleged tortfeasor's act, that is legally deemed to override the tortfeasor's act as the cause of the injury and, consequently, to relieve the tortfeasor from liability for such injury. However, a defendant will not be held liable for a third party's conduct unless the harm suffered is within the scope of the risk created by the landowner's negligence. The scope of the risk created by the tortfeasor is what is reasonably foreseeable at the time of the negligence.

Andrew's view of the purpose of the tort system

Andrews views the tort system as a mechanism to protect society from unnecessary danger (therefore, he would apply the directness test and it would act more as an insurer)

Negligence per se (definition)

Automatic negligence based on breaking a statute that protects public safety. Statutes are different from customs. Customs are evidentiary and not determinative, but statutes concerning public safety set the bar for negligence. Policy: If the legislature put in place a statute that protects public safety and sets safety standards then it is the courts job to enforce these interests.

Tunkl factors (factors that help in hold harmless agreement public policy analysis)

Bars hold harmless agreements that are: - Public services - Inviting open to the public - Use Contract of adhesion - Defendant has all the bargaining power - Business/Entity Concerns public regulation

Why are contracts for hire for lawyers and accountants an exception to the economic loss rule?

Because the clients in these transactions usually are usually less educated, have less negotiation power, and these professions provide less trackable services in a contracts rather than a normal contract that has identifiable goals and repercussions for not hitting them.

Elements of ordinary negligence

Breach, duty, causation (actual and proximate), and injury

There has been an accident in which A has suffered damages of 100,000 and has brought suit against B, C, and D. A trial has established that the relative shares of fault are A -40%, B - 30%, C- 10%, and D - 20%. C is now claiming injureis for A' negligence for damages of 25,000. What result?

C owes A 10,000, and A owes C 10,000 based on comparative negligence. Event though these do net out to 0, both parties must write the checks because some parties may have insurance.

Test for manufacturing defects:

Compare the design plans versus the actual product that was sold. Also, still have to prove it was defective at the time buyer purchased the product.

Consent Affirmative Defense (Test)

Consent is a defense to intentional tort and is a corollary to the assumption of the risk defense for negligence (both express or implied) Test: Did you consent to the intentional tort that occurred and if so then you waive your right to sue

Exceptions to Exclusive Control for Res Ipsa Locquitur

Conspiracy of Silence cases. A group who conspires in silence to hide the facts about exclusive control, then the court can find the whole group liable. The burden of proof is then shifted to the group to prove who controlled the instrumentality o relinquish their joint and several liability

Policy consideration for IIED claim

Courts are trying to distinguish from truly horrible intentional acts that affect emotions between normally accepted rude or obnoxious behavior. The courts are not trying to provide recovery for things that normal people should be able handle. They air on the side of the defendant because they are trying to cut down on the flood gates of litigation because they do not want every person hearing something rude said about them to bring a case.

General rule for industry customs and the medical exceptions

Customs are only factors in the reasonable person test because they feel that they should be able to second guess the normal industry. However, the courts feels that they should not second guess the medical industry (because the public policy reason of the industry falling behind safety standards is not present). Therefore, medical witnesses determine what a reasonable doctor would do.

Damages for loss of chance doctrine

Damages would be his 100% recovery reduced to the percentage lost by the doctor's negligence (if he lost a chance from 75% chance of survival to 25% then he could collect 50% of damages from lost wages or other damages)

Only exception to second guessing the medical industry (informed consent)

Distinguishes what a reasonable doctor should tell the patient and what a reasonable patient would want to know. A doctor should tell the patient what a reasonable patient would want to know Public Policy Reason: Courts want to incentivize patient autonomy

What element of negligence is usually in question for pure emotional or economic harm?

Duty because there the general rule that there is no duty to protect someone else's emotional or financial well-being

FTCA and different elements of the cases

Federal Tort Claims Act allows π's to bring tort cases against the federal government; however there is no punitive damages, no jury trial, and respondeat superior applies but you cannot sue the individual

Negligence v. Strict liability (plus goals of each)

Goal of the negligence system = act efficiently by taking efficient precautions and stop being careless Goal of strict liability = makes the person partaking in abnormally dangerous activities either take precautions to internalize losses 3. Strict liability analyzes an entire activity as inherently risky, while in negligence we are looking at the actions of a person that creates a risk in an action that can done safely (its like dynamite in a neighborhood v. driving); dynamite in a neighborhood is inherently dangerous but driving is only dangerous when there is a careless driver

Hand Formula (breach)

If Burden < Probability x Loss then you should take action, if it is the other way around then you should not take action (Only use this formula on the exam to show if the burden/precaution is efficient or not)

What will the plaintiff argue for a weird situation that may not fit the normal scope of the risk situation? (Kinsman Rule)

If a defendant breach a duty that they could foresee damages, then they are liable for all damages regardless of what different damages occur. However, most jurisdictions find this a stretch because of public policy/floodgates of litigation issues.

For IIED how do you test if the conduct is outrageous or extreme?

If the reasonable person would react by saying the act is outrageous

Strict Liability v. res ipsa

In res ipsa we see the injury and assume negligence, but with strict liability we do not have to assume carelessness because we do not care about carelessness. In res ipsa the ∆ can prove that they were careful, and they can win, but in strict liability the ∆'s precautions do not matter. The burden shifts to ∆ to show that they were careful, but that does not happen in the strict liability analysis.

How does age play into the analysis for intentional torts? What about for negligence?

Intentional torts: does not play a factor, person must simply understand intent Negligence: some states do not allow it or change the reasonable person to a reasonable minor for breach

Who decides duty and breach? Judge or Jury?

Judge decides there is duty in most cases, and the jury usually decides breach based on a reasonable person test

There has been an accident in which A has suffered damages of 100,000 and has brought suit against B, C, and D. A trial has established that the relative shares of fault are A -40%, B - 30%, C- 10%, and D - 20%. At trial it appears that D is insolvent. What result?

Most sensible option: Everyone bears part of the loss (even the plaintiff). So We allocate it pro-rata based on the remaining fault. That 20% from D gets divided by the percentage of fault of the remaining parties. A's contribution = 40/80, B = 30/80, and C = 10/80. So A does not recover 10,000, B pays 7,500 extra, and C pays 2,500 extra. (However, under joint and several A will probably get 100% from B, then B will sue C and D, and then A may have to give back 10,000)

Can a π recover for assault if they were not aware of the danger?

No because there was no apprehension of the risk; therefore, no assault if the person was not aware

Pure comparative negligence

No cut off for comparative fault; if plaintiff 99%, and defendant 1%, then damages = 1%

If someone hits over the head behind you and you have no idea they were coming, is it assault?

No you have a battery claim not an assault claim because you did not know it was coming because there was no apprehension

Can a doctor argue that a person's negligence was the but for cause for their injuries that got the doctor involved thus barred recovery for the doctor's negligence?

No, A physician may not avoid liability for negligent medical treatment simply because the patient's own negligence caused the injury necessitating the medical treatment. (exception: patient's failure to disclose known medical history, failure to follow instructions, or knowledgeable misrepresentations of medical history may bar recovery)

What claim could be brought for a conditional threat?

Not assault because the apprehension was not imminent. However, if the threat was intentional/recklessly inflicted and outrageous then IIED may work

Contributory negligence

Old common law rule that barred plaintiff's recovery if the plaintiff had any culpability, but no jurisdiction has the rule still in place

Proximate cause for intentional harms

Old common law rule: if there is intent to harm then the ∆ is liable from all damages coming from the intentional harm Modern rule: ∆ will not be liable for the actual injury unless that harm could have been foreseen or reasonably anticipated by the ∆ (Intentional harm cause a larger scope of foreseeability but it is not absolute)

Licensee

One who receives a license to use, or enter onto, another's property (i.e. social guests); a landowner has a duty to warn them about known concealed dangers that the licensee could not have known otherwise

Implied Assumption fo the risk doctrine

One who voluntarily participates in an action accepts the inherent dangers in it so far as they are obvious and necessary to participation. The injury must match the risk assumed.

Standard to overturn a jury's pain and suffering award

Pain and suffering damages are excessive when they shock the consciousness, which is a discretionary smell test for the judge. (minority view: this is too broad of a test and the jury should follow the past jury awards based on similar facts)

Formula for damages when one defendant is insolvent and there are multiple defendants

Personal fault liability amount + (personal percentage/100-defaulted party's percentage)*defaulted liability amount

Exception to economic loss rule: Third party construction. What occurs in a third party construction case

Plaintiff accuses the defendant of negligent carelessness based on not providing services that caused a plaintiff, third party, harm. It only occurs because the parties are not under contract, so this acts as a gap filler. Can be implicated when reports get sent out to may people who may act on it. (applies to lawyers, accountants, engineering firms, architects)

Joint and Several Liability

Plaintiff can obtain 100% of the damages from one defendant, regardless of their percentage of culpability. However, then the plaintiff that pays the claim in full can sue the other defendants for their pro rata fault.

Hypo: If I push someone in a fight and they fall and get hit by a car, am I liable for the car damages?

Probably because the act was an intentional battery and there is a lower bar for proximate cause for intentional torts (it is reasonably foreseeable that if you punch someone near a road then thee could be hit by a car)

Due Process standard for punitive damages

Punitive damages cannot be given over a 9-1 ratio without going against due process of USC, unless the situation is outrageous (factors considered = reprehensibility, treatment by the criminal law or statute)

Hypo: Can a quarterback sue for battery for an illegal hit during a football game?

Quarterback cannot sue for an illegal hit because they have consented to it by simply playing the game because there are going to be penalties in a game. However, if the coach punches you then that is a battery because it goes above and beyond the issue of consent.

What constitutes reasonable force for self defense?

Reasonable does not have to be the best option but it must be a reasonable based on the circumstances

Self defense - affirmative defense (two part test)

Self defense argument is that the ∆ committed battery to protect a threat against human safety First test: Would a reasonable person in the ∆'s position think that he must protect himself? Second test: Was the force reasonable based on the threat?

Elements π must prove in a modern products liability case: ∆ sold a product (exceptions)

Services are not products; books, maps, live animals, and real property are not compensable products

Why do some states combine licensees and invitees?

Some states do this because all landowners should use reasonable care for persons lawfully on their property, and the court should not draw lines solely based on their relationship. However, most states do not extend this to trespassers because the courts should not incentivize trespass

Once you have determined something is ultra-hazardous, what analysis is next?

Strict liability basically automatically proves breach. Therefore you still have to go through causation and affirmative defense arguments.

Negligent Entrustment

The act of leaving a dangerous article with a person who the lender knows, or should know, is likely to use it in an unreasonably risky manner. ii. Rule applies to sellers, lessors, donors, or lenders who know or should have known about the person's youth, inexperience, or otherwise

Wrongful life claims

The claim is brought for a child with severe defects that sues for pain and suffering just by existing. Courts very rarely allow these types of claims because it would be impossible to compare life with or without a disability to nonexistence

When can the consumer expectation test be applied

The consumer expectations test is valid but it should not be used for complex cases that the consumer would never foresee when buying the product. Therefore, only use the consumer expectation test when the injury is obvious based on the consumer expectation (car explodes at red light, airbags deploy while driving, etc.)

Scope of the risk doctrine (leading test for proximate cause)

The defendant is only liable for foreseeable injuries within the scope of the danger created by defendant's carelessness (If we froze time, who do we think is in danger at the time and how will the injury occur?)

Government Immunity

The first part to any governmental immunity case should decide if the action in question is either ministerial or discretionary; if it is discretionary it does apply and if it ministerial then you must still prove all other elements of negligence Policy Reason: Courts do not want to second guess the government's discretionary decision because there would be a large amount of litigation that would detriment both the public at large and burden the legal system.

Who evaluates expert witnesses?

The judge is the gatekeeper for expert witnesses and must decide if the jury should hear the testimony or not

IIED for publications against public figures

The only time a public figure can sue for IIED is when they can prove that the statement is false, and the publication knew it was false at the time of publication (such a high bar to protect 1st amendment right)

What happens when there are successive tortfeasors where their actions are indivisible? (i.e. generic pills cause defects but no one pill manufacturer can be determined because the pills are too alike)

The tortfeasors will be held joint and severally liable or severally liable only dependent on the court. If the tortfeasors are products manufacturers then liability will be applied based on market share.

Defense of property

There is an affirmative defense to protect property but never with deadly force. Policy: Tort law prioritizes human safety as more valuable than property

Duty to complete a rescue

There is no general "duty of rescue" to rescue others from harm. However, if you start a rescue you have a duty not to make the situation worse.

Negligence Per Se Elements

There needs to be a statute, there needs to proof that the defendant broke that statute, and that the statute was protecting the public safety and was in meant to protect from the injury that occurred, and the person was in the class the statute was created to protect

Hypo: the plaintiff is pregnant woman whom has a child that has birth defects and argues that the doctor has failed to tell her about the defects.

This becomes an informed consent hypo (See Matthies). Therefore, Plaintiff argues that if she would have known then she would have done something else (i.e. abortion, adoption, been mentally prepared to have a defective child). Plaintiff must show that it was carelessness not to tell the plaintiff and that if the plaintiff was told then she would have done something else that would have saved her from emotional harm

Transfered Intent Doctrine

Under this doctrine, the law transfers the perpetrator's intent from the target to the actual victim of the act.

Where does res ipsa doctrine usually show up from Kahn's perspective?

Usually should only occur for blatantly obvious things like sponge in someone's stomach or fallen barrels from the sky because society as a whole expects some injuries to happen without carelessness

Substantial factor test for actual causation (multiple sufficient factor)

Was the ∆'s actions a substantial factor leading to the π's injuries.

Loss of Chance Doctrine

When the doctor's negligence results in the patients loss of chance to survive and the patient dies then the injury is not the death because that may have happened anyway, but the injury is the loss of chance, which the plaintiff can recover for. (however, most courts limit the loss of chance to injuries or diseases that lend themselves accurately to scientific probabilities)

What happens when multiple defendants act in way that could create a but for cause each

When the plaintiff cannot determine which defendant could be a "but for" for his injuries, then the plaintiff can sue both. Then the burden to disprove their guilt is on the defendants, and if neither of them can prove then they are liable under joint and several liability.

Duty to warn (Tarasoff)

When there is a special relationship between two parties then if one party has definite knowledge that someone specific is in danger by the other party in the special relationship then the person has duty to protect/warn the third party

Nonfeasance - General Rule and Exceptions

When you do not add the risk into the situation then the general rule is that there is no affirmative duty unless there is one of the following exceptions: [SCRAP] (1) STATUTORY obligation; (2) CONTRACTUAL obligation; (3) RELATIONSHIP - special; family, common carrier, inn keeper, employer, invitee, Tarasoff-to warn (4) ASSUMPTION (once undertaken, cannot leave victim in worse condition); (5) PERIL created by D.

Actual causation with multiple potential causes

Where an injury has two or more possible causes, a plaintiff must only establish with reasonable certainty that his injury was more likely than not caused by one of the causes for which the defendant was liable. It is not necessary for a plaintiff to eliminate all other possible causes of the injury. (So π would be barred if π showed the ∆ had a 50% or lower probability of causing the injury)

Reasonable person test for intentional torts (what is offensive contact, what is normal contact)

Would a reasonable person be offended by the contact? Policy: Intentional torts protect offensive contact not all contact. People in society should expect some level of non-offensive touching

Hypo: Peter is involved in an accident with David. Ambulance driver picks up Peter and is involved in an accident that kills Peter. Can peter bring a wrongful death lawsuit against David even though he was not involved in the second accident?

Yes because courts have consistently held that the original tortfeasor is on the hook for all damages that occurred because it is reasonable foreseeable that the ambulance driver or doctor could be careless. However, the liability ends at foreseeable negligent acts, so if an ambulance driver is just angry and intentional drives off a cliff, then original tortfeasor is not on the hook

I point an unloaded gun at you, do you have an assault claim

Yes, if you did not have knowledge of the gun being unloaded.

Foreseeability test/Reasonable precaution test

You do not have taken every precaution, but every reasonable precaution based on reasonable foresight based on normal actions/customs and what has happened in the past.

Zone of Danger hypo: Seeing a video of yourself almost getting hit by a wrecking ball but you had no awareness at the time. When you see the video you get sever emotional distress. What result if you sue the wrecking ball company?

You will most likely lose because the zone of danger doctrine requires the person in the zone of danger to be aware of the present imminent threat to recover.

Zone of Danger Rule for non-physical harm

Zone of danger requires a the person to be aware of the significant threat of impact at the exact time of when the impact itself occurs, which causes so much emotional harm that creates a physical manifestation (some states do not require the physical manifestation and just require the zone fo danger)

Collateral Source rule

a plaintiff is entitled to recover damages for the full value of all reasonable and necessary medical services, regardless of whether the services were reduced, discounted, or gratuitously provided by another

Implied right of subrogation

always applied to property insurance because the damages match the insurance coverage; rarely applied to health insurance/third party liability insurance because coverage and damages do not match (however, express subrogation clauses are always upheld)

Ministerial Action for gov. entities

any action that is guided by a statute that gives the party acting on behalf of the government no other decision other than following the statute

Bad faith/failure to settle claim

arises when the insurance company fails to settle inside the policy limit π: plaintiff must show gross negligence on the insurer's part ∆: No gross negligence because they had a reason to belief their suit would be successful Policy: If standard was ordinary negligence then insurance companies would be forced to settle claims under the policy limit that they did not investigate

General rule for vicarious liability for businesses that employ independent contractors

businesses are not liable for the actions of independent contracts/agents unless the agent is acting under apparent authority

Wrongful Birth

claim that seeks pure economic damages for damages arising out of a wrongful pregnancy because of an improper sterilization. ∆: pure economic loss rule should apply π: the economic loss rule does not apply because the economic loss was parasitic to a physical injury (pregnancy); the courts go with this reasoning

Public Policy Argument for Quasi-governmental/governmental entities for duty

courts will draw arbitrary lines to restrict the duty to element when a quasi-governmental entity has committed a massive tort because they want to cut down on the floodgate of litigation and promote the financial stability of the public good

Modified Comparative Fault

cut off liability at 51% or 49%; therefore, if plaintiff is 52% liable then plaintiff cannot collect damages

Best test for to see if ∆ has a duty in a third party construction case

defendant is liable for material misinformation on reports that are prepared for a limited group of persons whose benefit he/she intends to supply information for. The defendant must have knowledge of the limited group at the time of devising of the report.

Economic loss rule

defendants generally do not owe a duty to protect pure economic loss because contract law usually provides a better remedy (exceptions = third party construction cases, or contracts for hire for accountants and lawyers) Policy reason: contract law provides the remedy and if it does not then the parties should have agreed to terms that would have covered their liabilities.

Concerted-Action Liability

defendants who conspire together to commit a tort both be found liable (i.e. drag racing cases)

Private Necessity - Affirmative defense for trespass

defense for trespass caused by an "act of God" or other disaster resulting in an inability to control movements justifies entries upon land and interferences with personal property that would otherwise have been trespasses. (Uses a balancing test weighs π's harm v. ∆'s interference of use; however if π's harm is very small then no defense)

Res Ipsa Locquitur Exclusive Control Test

did one party have exclusive control when the carelessness occurred

∆'s 3 possible arguments for Respondeat Superior

employee was not careless (because respondeat superior is not absolute liability), the employee is a third party contractor, or the employee was not working in the scope (Swenson case)

Exceptions for reasonable person test based on age/disability

if a reasonable person can visibly identify a disability then the reasonable person standard may shift around their disability, but if not then they could be ruled a normal bodied reasonable person. Policy: If people cannot tell that the person is disabled then there can be no assumed risk, and the disabled/minor person is acting in a capacity of a normal person and should be treated as such.

Minority test for manufacturing defects: consumer expectation test (standard)

if the π demonstrates that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable matter

Shoplifting false imprisonment requirment

if you detain someone for false imprisonment for shoplifting then it only becomes false imprisonment if the person was actually not stealing something (if you detain you must be right)

Conversion (factors/damages)

intentional exercise of dominion over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel Factors: extent and duration of control, intent to right to control, harm done to the property, and inconvenience done to the true owner Damages: full value (applies to online/intangible objects)

Difference between intentional and negligence for damages

intentional torts generally allow for punitive damages and damages cannot be discharge in bankruptcy, while negligence damages usually do not involve punitive and can be discharged

Trespass (standard)

interference with right of exclusive possession of the land Majority: trespass requires a permanent physicality that has a lasting impact on the land; therefore fleeting noises or molecules that do not have a lasting effect may not be trespasses Minority: Trespass is any molecule or force can count as a trespass, which almost swallows up nuisance (ex: gases, rays of light, vibrations)

Trespass for chattel (including damages)

interfering with the exclusive right of possession but not enough to grant conversion Damages: full value

Nuisance

invasion of the right to quiet enjoyment of the land; no physicality required (ex: gases, light, noises, vibrations, etc.)

Subrogation

is the right of an insurer to share in damages of the insured

Intent for battery majority test v. minority test

majority: would the action the ∆ intended to cause be seen by a reasonable person as harmful or offensive? minority test (Utah rule): Did ∆ intend to make the contact that occurred? (Intent to cause harm to anyone constitutes a battery intent, intent does not have to be a specific person

Manufacturing defects

manufacturer meant to make X but instead they made Y (does not have to be a dangerous defect)

Special economic damages

medical expenses (including future medical expenses) and lost wages (both future and past) (anything traceable)

Government and duty to keep safe

municipal entity owes a duty to the public at large but no duty to any one person unless they enter into a specific agreement with the person and fail to honor it

Summary Judgement

must look at circumstantial evidence in the best light of the plaintiff to withstand summary judgement; however, the plaintiff still has show evidence for each element they are trying to prove to surpass summary judgement

NIED

negligent infliction of emotional harm claim that must prove the exceptions to the general rule of pure emotional harm

General/Non-economic damages

pain and suffering and maybe loss of enjoyment depending on the jurisdiction (past and future)

Egg Shell Plaintiff Rule

requires the defendant to take the plaintiff as he finds him, even if that means the plaintiff will suffer more damages than a normal plaintiff (therefore, ii. A tortfeasor whose act, superimposed upon a prior latent condition, results in an injury may be liable in damages for the full disability)

Conditional threat for assault

since the apprehension of the harmful or offensive must be imminent, then conditional threats do not constitute assualt

Medical Witnesses and Res Ipsa Locquitur

some courts say that medical opinions cannot be used in res ipsa procedures because the accident/injury should speak for itself

Invitee and land owner's duty

someone you expect to have a material benefit from, their invite is open to the public, and the landowner owes a duty to show reasonable care as needed to protect the invitees' from danger (highest standard of care)

Parental Immunity and Parental Duty

states no longer recognize parental immunity unless the action falls under a discretionary actions (courts do not like to second guess general parental decisions); however, parents always have a duty to protect their child from harm

Cardozo's view of the purpose of the tort system

stresses the negligent tort system is not to get people to behave, but it is to right wrongs done specifically to the person praying for relief

Elements π must prove in a modern products liability case: ∆ is a commercial seller

strict liability does not apply to second hand sellers

duty to third party to have security on land (balancing test)

takes into account both foreseeability of harm and the cost of protection (most favorable for determining duty); when foreseeability is in question then it is usually for the jury to decide

Policy reason for having the familial relationship element for bystander liability

the court draws arbitrary lines to decrease the amount of claims for NIED. The reason for the familial relationship element is to show that the plaintiff can only collect if their emotional harm would be much more severe than the normal onlooker because they have a deep bond with the severely injured party

Design defects

the entire product line was defectively designed

When a plaintiff can avoid making a situation worse by doing something should comparative fault apply?

the injured plaintiff has a duty to mitigate damages and at least go to the doctor and do what a reasonable person would do, and if not then they may not get the full damages (Limitation: If the proposed treatment could result in an aggravation of the existing condition or the development of an additional condition of ill health, or if the prospect for improved health is slight, then there should be no duty to mitigate.)

Elements π must prove in a modern products liability case: π must suffer an injury

the injury must be a physical injury or property damage other than the damage of the defective product; injury is not pure economic or emotional harm

Reasonable person test (breach)

the plaintiff must prove that the defendant did not act as a reasonable person would have acted (reasonable customs can be used to determine but this element is decided by the jury)

Purpose of compensatory damages

the purpose is to make the plaintiff whole and to were they were before the injury, in theory. In practice this is impossible, but there is no other standard

Most important factor to show false imprisonment

the π must say they want to leave and the ∆ must say you cannot leave

General duty for emotional harm

there is no duty to protect the emotional well-being of another unless the following exceptions apply: -emotional harm that is parasitic to an physical harm done by the ∆ (not really a pure exception because it falls under misfeasance) -there is a special relationship because of an emotionally acute situation -the emotional harm was done in the zone of danger -bystander liability

What factors go into if self defense or property defense was reasonable?

time π has to respond, protecting property vs. person, warnings, value of property, information that the ∆ has, amount of force used on both sides, etc.

Exception to pure emotional harm: special relationship created by an emotionally acute situation (elements)

to recover under this exception the plaintiff must prove that: 1. there was a special relationship between the two parties that made the situation emotionally acute (dealing with the death of a loved one or diagnosing a terminal illness) 2. That the action was reckless (higher bar) 3. that the reasonable person with normal sensitivities would find the act emotionally harmful Policy reason: courts have such a high bar to this that is only applies to a small amount of situations to cut down on the floodgate of litigation

Punitive damages

warded damages for only for the sense of punishment; usually for intentional acts but can apply to ordinary negligence; they are rarely given and usually in small amounts

When should the substantial factor test be applied?

when the but for test fails because there are multiple sufficient causes for the π's injuries, and ∆ argues no actual causation because even I was not careless then the other person would still have injured plaintiff in the same way (Ex: Absestos manufacturer says even if I did not supply the product then my competitor would have making me not a but for cause; Two people negligently start a fire on both sides of a house and each fire would have sufficiently burned down the house)

Misfeasance

when you add the risk into the scenario then you have duty to everyone

Trespasser

who have no permission to be on the land and the landowner does not owe a duty to them but cannot intentionally harm them

Intent element for intentional torts (what does the π have to show?)

π must only show that the ∆ intending to act in a way that caused the offensive or harmful contact (π does not have to show that the ∆ intended to cause the injury that actually occurred; "i meant to scare them not injure them is not a defense")

Difference in how π/∆ will frame issues of proximate cause/foreseeability

π's argument: π will always try to frame the weird occurrence in general terms to make it seems foreseeable ∆'s argument: ∆ will always frame the situation as an aberration that could never be foreseeable based on the breach

Negligence per se arguments

π: Statute protects public safety. I am in the class the statute protects, and I was injured by what the statute was trying to protect. Or following the statute would have created a more dangerous situation ∆: Not in the protected class or injury falls outside of protected class. Statute does not protect public safety and only gives simple guidelines for conduct. Policy: Following the legislative interests are determinative in the court system. Additionally, if the purpose is public safety then it makes sense not to follow the statute if following it would create a more dangerous scenario.

Floodgate of litigation policy argument on both sides

π: the incident that occurred rarely occurs and it was a freak accident caused by the ∆. ∆: points to the many scenarios where this liability could apply and talks about the burden on the legal system if they allow this case to go forward

Arguments for both sides if a precaution should be take or not

π: the injury has occurred in the past and is foreseeable and the precaution should be taken ∆: (hand formula) the losses due to injury are very low compared to the cost and probability of the injuries occurring Policy: The tort system is not an insurer and our society should only have to make efficient precautions because if not then we reward economic waste

Old common law rule for strict liability (Rylands)

∆ brings something on the land that is non-natural, If the thing escapes there will be great harm, and then ∆ are responsible for the natural and anticipated consequences

What parties can strict liability be applied to?

∆'s: manufacturers, retailers, any commercial sellers π: purchasers and bystanders who are injured by the product defect

π/∆ argument for implied assumption of the risk

∆: Defendant will always frame the situation as the risk was inherent in the event that π consented to. π: Plaintiff will always counter with that the risk was not assumed because it was not obvious and inherent in the event that led to the plaintiff partaking in the event

Different Public policy considerations for hold harmless agreement

∆: People whom mutually agree to contracts consent to the contracts provisions, which should be held π: People should not be able to consent to sign away

Customs in non-medical industries

∆: all of our competitors have been doing X for years π: non-medical customs are not determinative because the court should decide what a reasonable person should do through the jury Policy: Courts should be able to second guess regular industries because if they didn't then industries may be allowed to conspire and fall behind reasonable safety standards