Torts
Negligence:Duty of Care:Inquiry:What is the standard of care?:Special standard:Negligence per se:Exceptions
(1) When compliance would have been more dangerous than the actual conduct. OR (2) When compliance would have been impossible.
Intentional Torts:False imprisonment
(1) Act of restraint (2) Plaintiff confined in bounded area (3) Plaintiff must be aware of confinement (4) Elements determined based on a reasonable person standard, hypersensitivity of plaintiff not considered.
Intentional Torts:Assault:Reasonable apprehension
(1) Apprehension does not require fear, it merely means expectation. (2) Apprehension coutns only if it would have been experienced by a reasonable person standard. (3) Empty, but believable threats may still result in a finding of assault.
Intentional Torts:IIED
(a) An act by the defendant amounting to extreme and outrageous conduct. (b) The plaintiff must suffer severe emotional distress.
Negligence:Breach
(a) Breach can be an affirmative act or an omission. (b) Res Ipsa Loquitur (c) Effect of Res Ipsa Loquitur
Negligence:Causation
(a) But-for test. (b) Merged causes -- substantial factor (c) Unascertainable causes
Negligence:Defenses
(a) Comparative negligence (b) Assumption of the risk
Intentional Torts:To Property:Defenses
(a) Consent (b) Protective privileges (c) Necessity defenses
Negligence
(a) Duty of Care (b) Breach (c) Causation (d) Damages
Negligence:Damages
(a) Duty to mitigate (b) Eggshell skull doctrine
Intentional Torts:To Property:Defenses:Consent
(a) Express consent (b) Implied consent (c) Scope of consent
Intentional Torts
(a) General principles. (b) No incapacity defenses. (c) Intent (d) Battery (e) Assault (f) False imprisonment (g) IIED (h) Intentional torts to property (i) Defenses
Negligence:Duty of Care:Inquiry:What is the standard of care?
(a) General standard (b) Special standard (c) Statutory standard (negligence per se)
Negligence:Duty of Care:Inquiry:What is the standard of care?:Special standard
(a) In light of defendant's superior skill of knowledge. [standard will be elevated] (b) Where there are relevant, physical characteristics (blindness, hard of hearing, weakness). (c) For children (d) For professionals (e) In emergency situations
Intentional Torts:Defenses:Protective Privileges:Defense of Property
(a) Inapplicable to people with a privilege to be on property. (b) Shopkeeper's privilege. (c) Timing (d) Mistake (e) Request to desist necessary. (f) Reasonable force (g) No automatically discharging devices. (h) No duty to retreat.
Negligence:Duty of Care
(a) Inquiry (b) Premises liability (c) Duty to aid (d) Limited duties where damages are solely for emotional distress (NIED)
Intentional Torts:IIED:Extreme and outrageous conduct
(a) Insults alone are not considered outrageous, unless they are given by either a common carrier or innkeeper. (b) Hallmarks of outrageousness. [i] It is committed by a certain type of defendant (common carriers or innkeepers) OR [ii] It is directed toward a certain type of plaintiff (children, elderly persons, someone who is pregnant hypersensitive adults if the sensitivities are known to defendant).
Negligence:Duty of Care:Standard of care in NIED cases
(a) Near miss cases (b) Bystander cases (c) Business relationships where emotional distress is highly foreseeable.
Intentional Torts:Defenses:Protective Privileges:Defense of Others
(a) One may use force to defend another when they reasonably believe that the other person will be subject to imminent attack. (b) Reasonable mistake allowed. (c) Amount of force available is the amount reasonably necessary to protect against injury.
Intentional Torts:Defenses:Protective Privileges:Necessity Defenses
(a) Public necessity (b) Private necessity
Negligence:Duty of Care:Inquiry:What is the standard of care?:General standard
(a) Reasonably prudent person acting under similar circumstances. [No allowance for the particular person's shortcomings (intellectual disabilities, intoxication, etc.).]
Strict Liability
(a) Standard (b) Liability for animals (c) Wild animals (d) Abnormally dangerous activities (damages must arise from the "abnormal danger") (e) Products Liability (f) For plaintiff to recover on a strict liability theory, the harm must arise from the abnormally dangerous quality of the strictly conduct at issue. (g) Defenses to strict liability
Strict Liability:Liability for animals
(a) Strict liability applies only if the owner has knowledge of an animal's uncommonly dangerous propensities AND plaintiff is NOT a trespasser. (b) No knowledge of dangerous propensity is presumed from a single dog bite alone, but liability for the ones after (i.e. once you've been put on notice)
Strict Liability:Abnormally dangerous activities
(a) The activity can't be made reasonably safe even with ordinary care. (b) The activity must be uncommon in the area where it was done. (c) Common examples: [i] Explosives [ii] Dangerous [iii] chemical/biological materials [iv] Nuclear energy/high-dose radiation
Intentional Torts:Defenses:Protective Privileges
(a) Timing (b) Self defense (c) Defense of others (d) Defense of property
Negligence:Duty of Care:Inquiry
(a) To whom is duty owed? (b) What is the standard of care?
Intentional Torts:To Property
(a) Trespass (b) Trespass to personal property [i] Trespass to chattels [ii] Conversion
Negligence:Duty of Care:Inquiry:What is the standard of care?:Premises Liability:Levels of Care
(a) Trespassers, licensees, invitees (b) Firefighters and police officers (c) Trespassing children
Negligence:Duty of Care:Inquiry:What is the standard of care?:Special standard:Children
(a) Under age of 5, no standard of care (b) Between 5-18, the hypothetical child of similar age, experience, and intelligence acting under similar circumstances. [i] Subjective standard [ii] Pro-defendant standard EXCEPTION: Child engaged in adult activity.
Intentional Torts:Intent
(a) Voluntary act AND a desire to produce the legally forbidden consequence. NOTE: (b) Transferred intent.
Intentional Torts:Defenses:Protective Privileges:Self Defense
(a) When a person reasonably believes that attack is imminent, they may use such force as is reasonably necessary to protect against injury. (b) Reasonable mistake is allowed.
Intentional Torts:Battery
(i) contact offensive to a reasonable person or actually harmful. [contact need not be instantaneous; can include poisoning another's food.] (ii) with the defendant's person. [Defendant's person includes anything connected to the person.]
Strict Liability:Products liability:Merchant
A commercial lessor IS a merchant. Merchants are NOT: NOT casual sellers (i.e. sellers of used goods). NOT service providers Potential defendants include everyone in distribution chain (privity of contract not required).
Negligence:Duty of Care:Inquiry:What is the standard of care?:Special standard:For emergency situations
A defendant must act as a reasonably prudent person would under the same emergency conditions. The emergency is not to be considered, however, if it is of the defendant's own making
Intentional Torts:Defenses:Protective Privileges:Defense of Property:Request to Desist
A request to desist must be made first, unless clearly futile or dangerous.
Intentional Torts:Intent:Substantial certainty
Alternative standard for proving intent: a reasonable person would have been substantially certain that the act would cause the consequence.
Negligence:Duty of Care:Inquiry:What is the standard of care?:Special standard:Negligence per se
Applies where (i) Plaintiff is in the class protected by the statute. [can be any class EXCEPT for the public at large] AND (ii) The statute was designed to prevent the type of harm suffered by the plaintiff.
Intentional Torts:IIED:Severe emotional distress
At least some evidence must be provided, but physical manifestations not necessary.
Negligence:Defenses:Comparative negligence
Comparative negligence Defendant shows plaintiff failed to exercise proper care for their own safety. Can be shown or defeated by failure to comply or compliance with a statute. If plaintiff has been shown to have contributed to their harms, the jury will assign them a portion of the damages.
Intentional Torts:Assault:Immediate battery
Conduct is necessary. Words alone are not sufficient to create reasonable apprehension, but they may negate apprehension that would otherwise be caused by conduct.
Strict Liability:Products liability:Defectiveness:Information
Consumers do not have adequate warning of the risks of using a product. Adequate waring must be: (a) Prominent (b) Comprehensible (c) Provide information about mitigating risk.
Strict Liability:Products liability:Damages
Damages must include more than economic losses.
Intentional Torts:Assault
Defendant must put plaintiff in: (a) reasonable apprehension (b) of immediate battery
Strict Liability:Defenses to Strict Liability
Defenses to product liability Traditional rule Recovery denied where the plaintiff [*knowingly* and unreasonably creates the dangerous situation] OR assumes the risk. Modern rule Damages reduced in proportion to plaintiff's fault.
Intentional Torts:Defenses:Protective Privileges:Defense of Property:Shopkeeper's Privilege
Detention committed by shopkeeper, if limited to reasonable duration and reasonable belief, may be committed without finding false imprisonment or assault.
Strict Liability:Products liability
Elements (1) Defendant must be a merchant (commercial seller of the goods at issue). (2) Product is defective. (3) Product was not substantially tampered with after leaving manufacture. (4) Plaintiff was making foreseeable use of product at the time of the injury. (5) Proximate causation
Negligence:Breach:Res Ipsa Loquitur
Elements (a) The accident causing the injury is a type that would usually occur due to negligence AND (b) It is probably the case that the defendant caused the accident
Negligence:Defenses:Assumption of the risk
Elements: (a) Plaintiff knew of the risk. AND (b) Voluntarily proceeded in the face of risk. Does not apply in circumstances where public policy warrants it, i.e. when there is a statute meant to protect against the risk otherwise assumed.
Negligence:Breach:Res Ipsa Loquitur:Effect of application of Res Ipsa Loquitur
Establishment of res ipsa loquitur is merely the establishment of a prima facie case. (a) No directed verdict may be given for the defendant. (b) The plaintiff can still lose if the inference of negligence is rejected by the trier of fact.
Negligence:Damages:Eggshell plaintiff doctrine
Even where a plaintiff has an abnormal susceptibility to certain harms, damages cover the full extent of the harm.
Intentional Torts:Defenses:Scope of Consent
Exceeding the scope results in liability.
Negligence:Duty of Care:Inquiry:What is the standard of care?:Premises Liability:Levels of Care:Firefighters and police officers
Firefighters and police officers No duty to warn of any foreseeable risk of the job.
Strict Liability:Causation
For plaintiff to recover on a strict liability theory, the harm must arise from the abnormally dangerous quality of the strictly conduct at issue.
Strict Liability:Products liability:Tampering
For strict liability to apply, the product must not have been tampered with after leaving manufacture.
Proximate cause (applicable to strict liability and negligence)
For the plaintiff to succeed, they must show that the harm is a foreseeable consequence of the breach (negligence) or dangerous quality of the conduct (strict liability). (a) Foreseeability (b) Intervening forces
Negligence:Duty of Care:Affirmative duties:Duty to prevent harm by third persons
For this duty to apply, the defendant must: (a) have the actual ability and authority to control a person's actions (control can be INDIRECT, i.e. calling the police or warning) AND (b) should know the person is likely to commit acts against a SPECIFIC VICTIM that would require exercise of this control.
Proximate cause (applicable to strict liability and negligence):Foreseeability:Intervening forces
Generally, the conduct of a third party causing or contributing to the ultimate harm does not break the chain of causation where the defendant's increased the plaintiff's likelihood of being subject to that conduct. Intervening forces that do not break chain of causation: (a) Injuries caused by the negligence of another where the defendant's act elevated the harm that plaintiff experienced. (b) Medical malpractice (c) Negligence of rescuers (d) Protection or reaction forces to the defendant's conduct (e) Subsequent disease or accident
Negligence:Duty of Care:Affirmative duties
Generally, there is no duty to act or to rescue. EXCEPTIONS: (a) Special relationship between the parties. [Common carriers, innkeepers, shopkeepers.] (b) When defendant itself has put the plaintiff in peril. [Not a duty to complete rescue but to act reasonably under the circumstances.] (c) Assumption of duty by acting [When one has begun giving aid to someone, they must continue to do so with reasonable care.] (d) Duty to prevent harm by third persons [see next]
Intentional Torts:Intent:Transferred Intent
If defendant has intent for a particular target, but a different target is accidentally hit, the intent for the particular target will be transferred to the other target. Intent element for one tort may be transferred to the intent element of another tort. Assault may become Battery when the empty threat is accidentally fulfilled.
Negligence:Duty of Care:Standard of care in NIED cases:Near miss cases
In addition to duty and breach, one must show that: (1) Plaintiff was in the zone of physical danger AND (2) Plaintiff must suffer physical symptoms of the distress
Negligence:Duty of Care:Standard of care in NIED cases:Bystander cases
In addition to duty and breach, one must show that: (1) The plaintiff and the person injured by the defendant are closely related AND (2) The plaintiff was present at the scene of the injury (narrowly construed) and personally observed or perceived the event
Intentional Torts:Defenses:Protective Privileges:Defense of Property: Inapplicable to people with a privilege to be on property.
Inapplicable to people with a privilege to be on property.
Negligence:Causation:But-for test
Injury would not have occurred in the absence of the breach.
Intentional Torts:To Property:Conversion
Intentional interference with plaintiff's personal property so serious that warrants defendant pay property's full value.
Intentional Torts:To Property:Trespass to chattels
Intentional interference with plaintiff's personal property that warrants Defendant pay some damages.
Negligence:Duty of Care:Inquiry:What is the standard of care?:Premises Liability:Levels of Care:Trespassers, licensees, and invitees
Known or anticipated trespassers Duty to warn of actually known artificial conditions if concealed AND highly dangerous. Licensees Duty to warn of actually known artificial conditions if concealed AND dangerous. Invitees Duty to warn of conditions possessor should know of if concealed and hazardous.
Negligence:Duty of Care:Inquiry:What is the standard of care?:Premises Liability:Trespassing children
Known or anticipated trespassing children Reasonably prudent care under the circumstances to protect children from artificial hazards.
Strict Liability:Standard
Liability attaches even if reasonable care was exercised.
Intentional Torts:Defenses:Protective Privileges:Defense of Property:Automatic Devices
NO automatically discharging devices likely to cause bodily harm may be used.
Intentional Torts:Defenses:Protective Privileges:Defense of Property:No duty to retreat
No duty to retreat.
Intentional Torts:Defenses:Protective Privileges:Defense of Property:Mistake
One claiming the defense may make a reasonable mistake as to whether request to desist is necessary or whether another has a privilege.
Negligence:Duty of Care:Inquiry:To whom is a duty owed?
One owes a duty to someone if it was reasonably foreseeable that the conduct would have put the person in any danger (not necessarily the danger of the harm actually suffered).
Intentional Torts:Defenses:Protective Privileges:Defense of Property:Reasonable Force
Only reasonable force may be used to prevent interference with real or personal property (i.e. force may not be used after tort has been committed, except when in hot pursuit of a stolen chattel).
Negligence:Duty of Care:Inquiry:What is the standard of care?:Premises Liability
Pertains to artificial conditions on land, NOT activities [activities are subject to reasonable person std.]
Negligence:Duty of Care:Business relationship cases
Plaintiff can recover if it is highly foreseeable that careless performance by Defendant will produce emotional distress.
Negligence:Damages:Duty to mitigate
Plaintiff has a duty to mitigate damages and will have damages subtracted for harms otherwise avoidable.
Nuisance
Private nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment of property that the other individual actually possesses or has a right of immediate possession. Types of cases (a) Inconsistent land uses. (b) Gross inconsideration cases.
Strict Liability:Products liability:Defectiveness:Manufacturing
Product emerges from manufacturing different from others and more dangerous than consumers would expect. [B/c strict liability, precautions against defects are completely irrelevant.]
Strict Liability:Products liability:Defectiveness:Design
Risks associated with product's design outweigh utility of design. One must show that, AT THE TIME OF THE DESIGN: (1) A different design would have been safer. (2) The design would still create a usable product AND be economically feasible to produce.
Negligence:Duty of Care:Inquiry:What is the standard of care?:Special standard:For professionals
Same care as an average member of their profession providing similar professional services. The standard of care is empirical, requiring conformance to custom. The standard of care is established by surveying the national practice
Strict Liability:Liability for wild animals
Strict liability for *any* injury caused by a wild animal stemming from the the abnormal danger presented by the animal.
Intentional Torts:To Property:Defenses:Consent:Express:Capacity Exception
The following may take away from capacity depending upon the sophistication of the activity for which consent is sought: *Intoxication *Childhood (exception below) *Intellectual disability Etc.
Proximate cause (applicable to strict liability and negligence):Foreseeability:Passage of time
The further along in time the harm is from the breach, the less foreseeable the harm.
Proximate cause (applicable to strict liability and negligence):Foreseeability:Geographic distance
The further the distance of the harm from the breach, the less foreseeable the harm.
Proximate cause (applicable to strict liability and negligence):Foreseeability:Prior occurrence
The less often the harm has occurred in the past, the less foreseeable the harm is.
Strict Liability:Products liability:Defectiveness
Three types of defect (1) Manufacturing (2) Design (3) Information
Intentional Torts:To Property:Defenses:Consent:Implied
Triggered when a reasonable person would infer consent from (a) custom and usage OR (b) body language consent
Proximate cause (applicable to strict liability and negligence):Foreseeability
Was the outcome a foreseeable consequence of the conduct or breach? Factors: (1) Passage of time. (2) Geographic distance. (3) Prior occurrence.
Intentional Torts:Intent:Transferred Intent:Limitations
When a privilege of self defense or defense of property applies, intent cannot be transferred.
Intentional Torts:Defenses:Protective Privileges:Timing
When the act is committed, the threat must be imminent or occurring.
Intentional Torts:Defenses:Protective Privileges:Defense of Property:Timing
When tort to property is imminent or in progress (includes when defendant is fleeing).
Negligence:Causation:Merged causes
Where any one cause would be sufficient to cause the injury, the defendant's cause was a cause in fact if it was a substantial factor in the injury. Result: Joint and several liability of all defendants.
Proximate cause (applicable to strict liability and negligence):Foreseeability:Superseding forces
Where defendant's conduct does not increase the likelihood that the plaintiff will be exposed to a third party's negligent or criminal conduct, such conduct is a superseding force that breaks the chain of causation.
Negligence:Causation:Unascertainable causes
Where only one person caused the harm, but multiple defendants were negligent and equally likely to have been that person. Result: they are all liable.
Intentional Torts:To Property:Defenses:Consent:Express
Words giving permission. EXCEPTIONS: (1) mistake will undo express consent if the defendant knew of and took advantage of the mistake; (2) consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and (3) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation. (4) The consenting person does not have legal capacity.
Strict Liability:Products liability
[i] Damages [ii] Strict liability [iii] Distinguishing strict liability from negligence in the products context
Intentional Torts:Defenses:Protective Privileges:Necessity Defenses:Public Necessity
[i] Defendant acts in an emergency to protect community. [ii] This is an absolute defense (protects against all liability).
Intentional Torts:Defenses:Protective Privileges:Necessity Defenses:Private Necessity
[i] Defendant acts in an emergency to protect themselves or property. [Defendant can remain for as long as the emergency continues.] [ii] Limited defense [must pay compensatory damages BUT not liable for nominal or punitive damages]
Intentional Torts:To Property:Trespass
[i] Physical invasion to land [By person OR A person's tangible object (excludes vibrations or odor)] [ii] of the plaintiff's real property. [Lack of awareness that property is plaintiff's irrelevant Land includes air above/soil beneath to a reasonable distance.]
Negligence:Duty of Care:Inquiry:What is the standard of care?:Special standard:superior skill of knowledge.
[standard will be elevated]
