TORTS 2023

IIED (elements)

An actor (1) engages in extreme and outrageous conduct and , (2) intentionally or recklessly causes the victim (3) severe emotional distress. (1) defendant engages in extreme and outrageous conduct (2) Conduct must either be (a) intended to cause plaintiff to suffer severe emotional distress (b) done with recklessness as to whether the plaintiff will suffer emotional distress.

Helpless Peril=

An actor is liable for injuries caused by a third party's negligence, if the actor's negligence has unreasonably and foreseeably put the victim in a position of helpless peril regarding future third-party negligence. For example, a truck driver crashes into a pedestrian and the pedestrian suffers a broken leg and in unconscious, then a bus comes by and hits the pedestrian and caused brain damage. Even though the truck driver did not cause the brain damage he left the pedestrian helpless so he would be responsible for the broken leg and the brain damage.

Recapture, Reclamation of Property

An actor may enter another's land and remain there as long as reasonably necessary to reclaim property, provided the entry is (1) at a reasonable time (2) in a reasonable manner, and (3) without breach of the peace or force against a person. If someone has just taken chattel wrongfully, is currently fleeing, and have not gotten away, the owner may pursue the taker and use reasonable, non deadly force to reclaim the chattel.

Defense of Person

An actor may use physical force against persons as the actor reasonably (if mistakenly) believes it necessary to defend herself or another against imminent, unlawful force. (MUST BE PROPORTIONAL TO THE THREAT) Retaliation and preemptive strikes are forbidden. The force might not be significantly greater than what the actor reasonably believes necessary.

Effect of customs and Industry Standards

An actor's compliance or noncompliance with a custom may be relevant to the question of breach or whether the actor has behaved like a reasonably prudent person under the circumstances. Ex. Custom, policy, practice, or procedure.

Defendants with Special Knowledge or Abilities (subjective standard for mental characteristics)

If an actor has special knowledge, training, or ability that the average person lacks, then the reasonable person will be deemed to possess whatever enhanced attributes the actor actually has. Thus, an actor with enhanced attributes must utilize them all times to avoid harming others.

General Measure of Recovery for Property Damage

If property is damaged, the plaintiff can generally recover the reasonable cost of repair of the difference in the property;s value before the harm the value after the harm. If property is destroyed, the plaintiff can generally recover the fair market value of the property at the time of its destruction, lost use of chattel or realty, diminished value of chattel or realty, and diminished enjoyment of realty.

Conditional Threat (intentional tort)

If the actor intentionally puts another in apprehension of an imminent and harmful or offensive contact, he is subject to liability for an assault although he gives to the other the option to escape the contact by obedience to a command given by the actor, unless the command is one which the actor is privileged to enforce by the infliction of the threatened contact or by a threat to inflict it

Negligence of Rescuers

If the actor's negligence puts the victim in a position of helpless peril, it is generally foreseeable that a rescuer's intervening negligence will exacerbate the victim's injuries. Yet, even here, the actor is not responsible for additional harm attributed to extraordinary or unusual actions creating risks different from those generally associated with efforts to render assistance. Ex. Same story as before where the truck crashed person and broke leg, except this time another motorist comes and drags her off the road to help but makes the leg injury worse, the truck driver would be responsible for the original leg injury and the additional harm caused from the other motorist helping.

Third Party Recovery for IIED

If the defendant directs the IIED conduct at an immediate family member of the plaintiff that is present, the defendant is liable for intentionally or recklessly causing severe emotional distress to the plaintiff. If the plaintiff is not an immediate family member, then the distress must actually cause bodily harm to the plaintiff. if the witness is not an immediate family member of the victim, witnessing a traumatic incident to a third party may still be considered IIED if the distress results in the witness suffering bodily harm. (but must have some physical manifestation of the trauma like illness ptsd etc)

Procedural Effect of Negligence Per Se

If the plaintiff can show that negligence per se applies, and the defendant has violated the law, then the plaintiff will have established the elements of duty, the standard of care, and breach. A finding of negligence per se does not require a finding of liability, so to recover, the plaintiff must still prove causation and harm.

The Rescue Doctrine

In an actor negligently puts herself or another in a dangerous situation, it is reasonably foreseeable that someone will be hurt trying to render assistance. Therefore, the actor generally owes a duty of care to would-be rescuer.

Assault (elements)

The actor (1) intentionally (2) causes the victim reasonable apprehension (belief) of (3) imminent battery. (1) an overt act by the defendant (2)of which the plaintiff is subjectively aware, and which is intended to and does create in the plaintiff (3)a reasonable apprehension of an imminent battery Mere words don't count, but coupled with acts then can show intent of imminent battery. Apprehension is an expectation of a battery, not a fear of a battery.And is an objective reasonable person standard, unless the defendant has knowledge of the plaintiff's specific sensitivities then it becomes a subjective test. Must be imminent, not in some time in the future.

False Imprisonment (elements)

The actor (1) intentionally (2) confines a victim (3) to a bounded area, and (4) the victim is aware of or harmed by the confinement. (1) An act done by the defendant (2) intended to and does in fact (3) cause the plaintiff to be confined non-consensually within a fixed set of boundaries of the defendant's choosing for any appreciable length of time. Also Plaintiff must be aware of the confinement or be harmed by it. The defendant must confine without any lawful authority.

Trespass to Land (elements)

The actor (1) intentionally and (2) unlawfully (without consent or privilege) (3) causes physical entry by a person or object on land (4) in another's possession. The actor need only intend to commit some act that happens to cause physical entry and need not have reason to know about the victim's possessory rights. (1) Intentional (2) Unlawful (3)Physical Invasion of Real Property (4)As to which the plaintiff is the rightful owner or is otherwise the person with rightful exclusive possession and control over the property.

Trespass to Chattel (elements)

The actor (1) intentionally does an act that (2) happens to interfere with (3) the victim's superior right to possess chattel, but (4) not serious enough to justify requiring payment of its full value.

Conversion of Chattel (elements)

The actor (1) intentionally exercises control (2) over chattel (movable personal property) (3) in another's possession and, so doing (4) so serious interferes with the victim's superior rights in the chattel that it is fait to compel the actor to pay the chattel's full value. outright theft or destruction usually suffices but is unnecessary. (1) An intentional Exercise of Near-Total, Owner-Type dominion over personal property. (2) A resulting Serious interference with the rights of the true owner or other rightly possessor. Mistake is not a defense for conversion.

Defense of Property

The actor may use reasonable nondeadly force to defend land or chattel. If reasonable, the actor must first demand that the wrongdoer stop.

Public Necessity

The actor reasonably believes interfering with another's property is necessary to avoid public disaster (ex. killing a rabid dog to prevent spread of rabies). For trespass to land, the disaster must be imminent. The actor is not liable for property damage reasonable necessary to prevent the public disaster but is liable for further damage.

Private Necessity

The actor reasonably believes that interference with another's property is necessary to prevent serious harm to private person or their property. The actor must compensate the victim for damaged or lost property.

Actual Causation may be proven under one of four basic theories:

The but-for test, concurrent-causes doctrine, substantial factor test, and the alternative-causes doctrine.

Mistake Insufficient

The circumstances justifying force to defend or recapture property must exist; reasonable belief is insufficient.

Medical Battery

battery consists of an unpermitted touching, in the form of a medical procedure or treatment. The touching is permitted if the patient consents to it.

Comparative Fault

· Most jurisdictions have abandoned contributory negligence for one of the two prevailing comparative-fault regimes: (1) pure comparative fault and modified comparative fault. o Pure Comparative Fault=the fact finder allocates a percentage of fault for the injury among all parties, including the plaintiff. The plaintiff's recovery is then reduced, not eliminated, according to the plaintiff's percentage of fault. Percentage of fault allocated to the plaintiff can be 1%-99%. If there are multiple responsible defendants, the fault is further allocated among them. o Modified Comparative Fault= The plaintiff's own negligence will bar recovery, much like contributory negligence, if the plaintiff's fault exceeds a specific percentage. Some jurisdictions, barred recovery for plaintiff if at 50% negligent or more, in others it is more than 50%(51%).

Joint and Several Liability with Contribution

· Most jurisdictions that have adopted joint and several liability have also adopted a system of contribution for tortfeasors who are found jointly and severally liable. One jointly and severally liable defendant may pay a greater percentage of the judgment than his allocated percentage of fault. In that event, he may recover against each of the other jointly and severally defendants in proportion to their respective allocated shares of the fault, up to the amount of the overpayment.

Employer and Employee

· Respondeat Superior= an employer is vicariously liable for torts committed by its employees, but only if: (1) there was a master-servant relationship between the employer and the employee at the time of the injury, and (2) the employee committed the tort within the scope of employment. o Compensation not required. Ex. A non-profit can be held vicariously liable for the negligence if its volunteers.

Harm

· The plaintiff must show that the defendant's breach of duty actually and proximately caused legally cognizable harm to the plaintiff.

Tortfeasors Acting in Concert

· Tortfeasors act in concert if they knowingly act together and substantially assist one another in causing the plaintiff's harm. Tortfeasors who act in concert are each jointly and severally liable for 100% of the responsibility allocated to their combined misconduct.

The Negligence of Others

The negligence of others is considered to be foreseeable. A negligent actor generally will not be absolved merely because someone else's negligence contributed to or exacerbated the harm.

Premises Liability (duty of landowners)

Someone who possesses land generally owes a duty of care to those who enter upon the land. Traditionally, standard of care depends on how the entrant is classified.

Duty for Volunteer to Rescue

Someone who volunteers to rescue a person has a duty to prevent foreseeable injury (must take steps to see through the rescuing reasonably).

WATCH THE TIMING=

Something that happens after the plaintiff's injury is already complete is not an actual cause of the injury, even if it would have been sufficient for negligence.

Exception is foreseeable harms triggered by unforeseeable intervening forces=

Sometimes, a particular type of harm is foreseeable, but the catalyst for the harm is an unforeseeable intervening force, especially a natural force. In these cases, courts generally deem the actor's negligence a proximate cause of the victim's injuries. That is because the type of harm is reasonably foreseeable, even if the chain of events leading to it is not.

Third Party Recovery (IIED)

This Court defines one's immediate family as his spouse, parents, siblings, and children. The "presence" requirement of § 46(2)(a) was construed liberally to include this claim, because the court found that the defendants' intent to cause distress to the wife wasquite clear from their conduct. In the instant case, however, the District Court held that, although the "presence" requirement could be given a generous reading, the "immediatefamily" requirement of § 46(2)(a) could not

Consent (defense)

To give consent, a person must (1) know all material facts, (2) consent without duress or coercion (3) not be underage, and (4) suffer no mental defects preventing her from understanding the material facts or making her unusually susceptible to suggestion.

Actual Causation

Negligence liability requires that the actor's breach of duty be the cause in fact, or actual cause, of the injury.

Proximate Causation Generally

Negligence liability requires that the actor's breach was the proximate cause of the harm.

Intrusions Upon, Beneath, and Above Surface of Earth (trespass)

(1) Except as stated in Subsection (2), a trespass may be committed on, beneath, or above the surface of the earth.(2) Flight by aircraft in the air space above the land of another is a trespass if, but only if, (a) it enters into the immediate reaches of the air space next to the land, and (b) it interferes substantially with the other's use and enjoyment of his land

Establishing Breach without Proof of Specific Fault: RES IPSA LOQUITUR

"The thing speaks for itself." Situations in which the mere occurrence of the accident is sufficient evidence to permit a jury to infer that the defendant breached a duty. Plaintiffs often invoke res ipsa if their only proof of negligence is the fact that the accident took place.

Offensive Contact

(1) a reasonable person of ordinary firmness would find the contact offensive under the circumstances, or (2) the actor deliberately exploits the victim's unusual sensitivity, even if a reasonable person would not find the contact offensive (must be on notice for the sensitivity)

Interference (trespass to chattels)

(1) depriving the victim of the chattel's use for an appreciable (if brief) time, or (2) materially impairing usefulness or value.

Intent

(1) the conscious objective to do something to cause a result, or (2) substantial certainty of causing a result.

Invalid Consent

(1)Predicated upon a fundamental mistake by the plaintiff (2) of which the defendant is aware of, and (3) relates to a basic assumption on: which the consent was given or relates to the nature of the physical contact or which relates to the harm that can be expected to result from it.

Duty to Remedy or to Warn (landowner)

-If the possessor knows of a hazardous condition or would know of the condition upon conducting a reasonable inspection, and the possessor knows or should know that the invitee has no reason to know of the condition and the risk it poses, then the possessor must take reasonable steps to remedy the condition or warn the invitee about the condition and the risk. -A possessor has no duty to remedy or warn about open and obvious conditions, unless a reasonable person could foresee that the condition would injure an invitee despite the obviousness of the risk.

Requirements for Res Ipsa to Apply:

-Accident That Usually Results from Negligence=The accident must be one tat ordinarily would occur only if someone were negligent. -Actor's Control over Harmful Instrumentality=The instrumentality that injured the victim must have been under the actor's control when the accident occurred. Historically, exclusive control was required, but more recently is that the actor have enough control to make her negligence the most plausible explanation for the accident, even if these are other possible explanations.

Standard of Care

-Characteristics (reasonable person standard): Subjectively includes physical problems, physical advantages, mental advantages, age of child, involuntary intoxication DOES NOT INCLUDE: Mental problems, voluntary Intoxication -Relationship: Include common carrier, innkeeper/guest, landlord/tennent, business owner/lawful entrants, School/student, Employer/employee, custodian/ward (ex. parent /child), mental health professional/patient

Duty to act or protect others EXCEPTION to the no duty to rescue or warn

-You created the risk of harm -You voluntarily assumed a duty to act (social venture duty) (must follow through so P does not get injured further) -You interfered with others trying to help -A law specifically required you to ack -You had a special relationship with someone who was involved.

Negligence per se

1) Defendant's conduct violated a civil statute or ordinance (or sometimes administrativeregulation), and 2) That law is designed to a) Protect a class of persons which includes the person whose interest is invaded i) Civic v. Signature Collision Centers - building codes for handrails designed to protect disabled individuals not all customers ii) McCarthy v. Weathervane Seafoods - statute intended to protect onlyemployees - plaintiff was an independent contractor b) Protect the particular interest which is invaded c) Protect against the kind of harm which resulted, and d) Protect that interest against the particular hazard from which the harm results.

Negligent Entrustment (elements)

1-supply 2-chattel 3-knows or has reason to know 4-unreasonable risk of physical harm to himself or others 5-the supplier should expect to share in or be endangered by its use. (proximate cause)

Duty & Foreseeability

A duty generally arises if it is reasonably foreseeable that the actor's conduct will harm someone else. An actor generally owes a duty only to foreseeable victims to avoid

o Foreseeable Intervening Force

A intervening force will not break the causal chain and become a superseding force if it is reasonably foreseeable.

Standard of Care for Minors (duty)

A minor is normally held to a special child standard of care. In limited situations, a child may be held to the adult reasonable-person standard. The Child Standard of Care (Subjective Standard)= A child is held to the standard of care of a child of the same age, intelligence, and experience under the circumstances. This is not like the objective standard used by adults. Under the child standard of care, a particular child's subjective experience and characteristics, including the child's particular mental deficiencies, as considered when determining whether the child's behavior was reasonable.

Duty Regarding Conditions on the Premises (landowner)

A possessor owes a duty of reasonable care to all invitees regarding unreasonably hazardous natural or artificial conditions on the property including a duty to inspect the premises, remedy the condition, or warn of the condition.

Shopkeeper's Privilege

A shopkeeper may detain someone they reasonably believe the person is shoplifting, but only for a reasonable time (reasonably necessary to confirm shoplifting or until police arrive) and in a reasonable manner (reasonable force necessary to detain and must not cause unnecessary humiliation or discomfort).

Consent Implied by Law

An emergency makes it apparently necessary for the defendant to contact the plaintiff physically before the plaintiff can consent in order to prevent harm to the plaintiff. AND the defendant has no reason to believe the plaintiff would not consent if given the opportunity.

Battery (elements)

Arises if the actor (1) intentionally (2) causes the victim (3) harmful or offensive physical contact. (unpermitted in MN) (1)An act by the defendant (2)Intended to and does bring about (3)Physical Contact with the plaintiff, which is either harmful or offensive. (Unpermitted in MN)

Breach

Arises if the actor fails to conform to the applicable standard of care. Breach typically requires that the actor's conduct have been unreasonable under all the circumstances. Proving breach usually requires a showing that (1) the actor could have pursued an alternative, reasonable course of conduct that (2) more likely than not would have prevented or mitigated the injury.

Attractive Nuisance Doctrine—child trespassers (DUTY TO CHILDREN LIKELY TO TRESPASS)

Artificial dangerous condition on your land You know or should know that children are likely to trespass the child fails to appreciate the danger because of youth or immaturity Utility of maintaining the dangerous condition is slight compared to the risk

RISK-UTILITY BALANCING TO PROVE DUTY AND BREACH

B<P*L

Reasonable Means of Escape

Confinement fails if the victim has a reasonable means of escape and is or should be aware of it.

Balancing Test (Duty)

Considers all the facts and circumstances germane to the foreseeability of crimes on the premises. Weighs (1) the foreseeability and gravity of harm that might befall invitees against, (2) the burden and expense or protecting against harm and the social utility of the business itself.

Applying Adult Standard for Adult Activities (for minors, duty)

Courts apply the adult standard of care if a child injures someone while engaging in an adult activity. An adult activity is one that carries an inherent risk of grave injury to the child or others, if the activity is not conducted with the care and skill typical of a prudent adult. A typical example is if a child is driving a motor vehicle, then the adult standard may apply.

Dual Intent

Dual is the intent to make contact and that it be harmful or offensive.

Negligence

Duty, breach, actual, proximate cause, harm

Express Consent

Explicit statement of consent to defendant's activity

Procedural Effect of Res Ipsa

Factfinder may find that the defendant's negligence caused the accident, but the factfinder is not required to do so. Res Ipsa satisfies the plaintiff's burder to produce evidence raising an inference of negligence, it does not satisfy plaintiff's ultimate burden of persuading the factfinder, which generally lets a plaintiff survive motions by the defendant.

Extreme and Outrageous Conduct

Highly unusual conduct exceeds common insults or trivialities, transcending the bounds of civilized decency. (1) abuse of power (2) abuse of special relationship (3)repeated conduct or a pattern of conduct (4) public humiliation (5) ethnic or racial bias (6) deliberately exploiting a victim's peculiar sensitivity, and (7) exploiting a vulnerable class. Conduct that passes all bounds of decency which a civilized society would tolerate, which would cause an ordinary person of reasonable firmness to experience emotional distress. Insults alone are not extreme and outrageous, but if it is prolonged or for a longer period of time is repeated, then it may be more likely.

Duty to Retreat

In some jurisdictions, the defendant must try to get away from the danger if the defendant knows that he or she can avoid using force by: (1) retreating to a place other than their home (2)by surrendering property to someone claiming a legal right (not their dwelling) (3)complying with initial aggressor's demands that the defendant take some course of action However, some jurisdictions have Stand Your Ground policies where there is no duty to retreat.

Negligence Per Se

In some situations, the specific requirements of a law, including a statute, regulation, or ordinance, may replace the general standard of reasonable care as the governing standard of care in a negligence care.

Valid Consent

Informed, Voluntary, given by person with legal capacity. Informed== if the plaintiff knows everything a reasonable person would need or want to know in order to make an informed decision about whether to give consent. Voluntary==is a product of the plaintiff's volition, procured without duress, coercion, or undue influence. Given by person with legal capacity== minors, incompetents, nor those under the influence of a substance can give valid consent.

Transferred Intent

Intent to commit one intentional tort against one victim transfers to other torts or victims.

Unforeseeable Intervening Forces=

Intervening forces that are not reasonably foreseeable become superseding forces that break the causal chain between the actor's breach of duty and the injury, thus absolving the actor's liability.

Duty to People Entering Your Land

Invitee=Invited to enter for owner's benefit or open public place—futy to use reasonable care Licensee=permission to enter—duty to warn about known dangers but not obvious dangers unless anticipate ignorance, Trespasser=no permission—-no duty unless aware, then duty to warn of artificial life threatening risks

Negligence of medical professional

It is generally foreseeable that medical professionals will negligently treat injuries caused by the actor's negligence. If the actor's negligence forces the victim to seek medical treatment, the actor will normally be liable for subsequent harm that the victim suffers due to medical negligence in treating the initial injury—unless perhaps the particular medical negligence is extraordinary and unforeseeable.

Limited Capacity (intentional tort)

It is the consequential contact with the other person that the actor must either intend or be substantially certain would result, not the act—pulling the trigger— itself. He is therefore not liable for an intentional tort because his intentional act resulted in an unintended contact. If he pulled the trigger intending that the bullet released thereby would strike someone, or knowing that it was substantially likely to strike someone as a result of his act

Confinement

Must limit freedom of movement in all directions for some appreciable (if slight) time, using (1) physical restraint, (2) threats to duress (including the prospect of severe humiliation or embarrassment), or (3) false pretense of lawful authority to which the victim submits. Confinement can also be physical force against plaintiff, plaintiff's family, or plaintiff's property. (ex. defendant forcing plaintiff to choose between a valuable property/family member and freedom of movement would be considered false imprisonment. or threat of immediate harm of property/family if plaintiff leaves.)

Natural Forces

Natural forces are generally treated like intervening forces. A truly unforeseeable natural force may be a superseding cause absolving the negligent actor of liability. Foreseeable natural forces will not absolve the actor. If a force of nature merely increases or accelerates the harm that would have resulted, then the force of nature is treated as a foreseeable intervening force, not a superseding one.

Duty

Negligence requires that the actor owe the victim a duty to follow a particular standard of care based on the circumstances.

Implied Consent

No Statement Consenting to the defendant's activity, but either: Circumstances make the reasonable person to infer consent by plaintiff, or The law deems to have been consent, even if there was not.

Do people have a general duty to rescue?

No. A person generally has no duty to assist or rescue another. If an actor voluntarily undertakes to rescue or assist another, the actor generally has a duty to exercise reasonable care under the circumstances to avoid injuring (or further injuring) the person assisted. (pretty much once you start to help someone, even though you didn't originally have a duty, you have taken on a duty and breach can be from not caring correctly under the circumstances or to abandon aid under the circumstances).

Does Negligence Per Se Apply to Children?

No. But can be used as evidence to support a negligence finding. Does not apply to children, and courts will generally will not apply negligence per se if the actor could not reasonably have been expected to comply with the law because of some incapacity.

Negligence Per Se Elements

The statute's applicability for purposes of determining breach requires proof that 1) Defendant's conduct violated a civil statute or ordinance (or sometimes administrative regulation), and 2) That law is designed to a) Protect a class of persons which includes the person whose interest is invaded b) Protect the particular interest which is invaded c) Protect against the kind of harm which resulted, and d) Protect that interest against the particular hazard from which the harm results. There are reasons why someone can be a reason that can be evidence why statute was broken that can be evidence...ignorance of the law and inability to comply... are examples.

Sufficiently Serious Interference

Several factors support requiring the actor to pay the chattel's full value: (1) deprivation of full value (ex. theft or destruction) (2) serious usurpation of the victim's rights (regardless of effect on value); (3) the extent and duration of the actor's control (4) deliberate or knowing interference, and (5) substantial damage, inconvenience, or expense.

Single Intent

Single is the intent to make contact

Necessity as a defense

The defendant may interfere with P's property rights to reasonably avoid an even worse injury. Public and Private Necessity.

Consent as a Defense to Battery

The defendant's activities must remain confined to the scope of consent given; if they exceed the scope of the consent given, there is a battery.

Evaluate Alternative Conduct (Breach)

The heart of the reasonableness test is a cost-benefit analysis. Courts balance (1) the likelihood and severity of the harm against (2) the utility of the actor's conduct and the burden to the actor of avoiding the harm or minimizing the risk via the proposed alternative course of conduct.

Initial Aggressor's Privilege

The initial aggressor may use force in defense only if the target (1) uses excessive force in defense or (2) uses force after the initial aggressor backs off, clearly communicating intent to cease force. (however initial aggressors usually do not benefit of self defense)

Reasonable Care, not heroic care or abundant caution

The law requires only reasonable care, not excessive caution or heroism. An actor will virtually never be expected to risk life and limb for another's benefit.

Consent Implied In Fact (a form of implied consent)

The plaintiff's conduct gives a reasonable person in the defendant's position cause to believe the plaintiff's consent. (ex. playing sports)

Duty to Inspect (landowner)

The possessor has a duty to reasonably inspect the property to detect unreasonably hazardous natural or artificial conditions.

Duty to Conduct Activities with Reasonable Care (landowner)

The possessor must conduct all activities on the premises with reasonable care under the circumstances for invitees. Possessor must avoid creating unreasonable risk of harm to invitees and should expect that invitees will not realize the danger or will fail to guard against it.

Duty to Trespassers

The possessor's duty to unknown trespassers is limited, the possessor need only avoid intentionally or recklessly injuring a trespasser.

Mental Characteristics of the Reasonable person (an objective standard)

The reasonable person is always sane and of at least average intelligence, possessing whatever knowledge and foresight an average member of the community would possess.

Physical Characteristics of a Reasonable Person (objective standard)

The reasonable person will be deemed to possess and be aware of the physical characteristics (1) that the actor actually has and (2) of which the actor reasonably should be aware. The reasonable person would take reasonable precautions to avoid harming others in light of the actor's own physical characteristics.

Reckless Rescuers (Rescue Doctrine)

The rescue doctrine does not create a duty to would-be rescuers who are injured because of their own reckless behavior in attempting a rescue.

· Exceptions to Contributory Negligence=

There are a few exceptions to contributory negligence that allow a negligent plaintiff to recover 100% of damages, despite her negligence. (1) defendant's recklessness, (2) the defendant's intentional tort, (3) the last-clear-chance doctrine, and (4) the rescue doctrine. o Defendant's recklessness= is a more egregious form of culpability than negligence. The conscious disregard of a serious, unreasonable risk of harm. However, a plaintiff usually cannot recover against a reckless defendant if the plaintiff's own recklessness contributed to the injury. Contributory negligence is not a defense to recklessness, contributory recklessness is. o Intentional Torts and Contributory Negligence= Contributory negligence is NOT a defense to intentional torts. Last Clear Chance= Contributory negligence is not a defense if the actor had the last clear chance to avoid causing harm by exercising reasonable care. Only applies if actor's negligence occurred after the victim's negligence

Medical Negligent Treatment

Treating the patient negligently in the procedure that causes harm

BREACH Circumstances to analyze for breach: EVIDENCES of BREACH

What would a reasonable person do Cost/Benefit Knowledge/Notice/Foreseeability Timing/Ability Emergency/Sudden Incapacitation Custom in the industry (standards of the industry can be evidence of breach)

Recklessness (IIED)

When he or she acts with unreasonable disregard of a high probability that the particular element of the tort to which recklessness relates with occurs.

Threat by Words

Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person

Alternative-Causes Doctrine

applies if (1) multiple actors were negligent, (2) at least one of the actors caused the victim's harm, and (3) it is impossible to tell which actor's negligence caused the harm.

The Substantial-Factor Test

applies if (1) multiple forces combined simultaneously to cause the victim's harm, (2) any one of these forces would have been sufficient by itself to cause the harm, and (3) it is impossible to tell which force caused what portion of the harm. If the actor's negligence was a substantial factor in causing the harm, then the negligence will be treated as an actual cause of the injury, notwithstanding any other independent forces.

Express Assumption of the Risk

arises if the victim expressly agrees, whether orally or in writing, to proceed in the face of risk. Ex. Contractual Assumption of Risk

Several Liability

if multiple defendants are found liable for an indivisible injury, and each defendant is assigned a distinct percentage of the fault, the plaintiff may recover from a given defendant only that particular defendant's proportional share of the damages.

Implied Assumption of the Risk

if the victim chooses to proceed in the face of the risk, under circumstances manifesting willingness to accept the risk. Often inferred from the victim's conduct. 2 types---primary and secondary

Primary Assumption of Risk

if the victim knowingly and voluntarily participates in activities that carry inherent risks. Ex. (1) undertakes a dangerous line of work or (2) participates in a risky sport or recreational activity. In most comparative-fault jurisdictions, primary assumption of the risk is no longer recognized as a defense. However, these jurisdictions sometimes will reach that the actor owes no duty of care towards the victim under the circumstances. However, the actor has a duty to avoid negligently increasing the inherent danger of the activity.

Duty to an invitee

is a duty of reasonable care concerning (1) the possessor's activities on the property and (2) any natural or artificial conditions on the property.

Severe Emotional Distress

is greater than a reasonable person of ordinary firmness could endure under the circumstances, usually manifesting objectively. (outward physical manifestation is generally required to prove this)

Deadly Force (defense of person)

is permitted if the actor reasonably believes it is necessary to prevent imminent death or serious bodily injury. Some jurisdictions impose a limited duty to retreat before using deadly force, however most require if able to retreat to retreat.

Standard of Care in Emergencies

is still reasonable care under the circumstances. Emergency as a Product of Actor's Own Negligence= Courts will generally not take an emergency into account if the emergency was a reasonably foreseeable result of the actor's own actions. If actor created the emergency, and acts reasonably to help the emergency, the actor is likely to still be liable for creating the emergency in the first place.

The But-For Test

is the predominant test for actual causation. This test is satisfied if the victim's injury would not have occurred without the actor's breach of duty. o Concurrent Causes= A special case of but-for causation. Causes are concurrent if (1) multiple forces combine to cause the harm, and (2) no single force by itself would suffice to cause the harm. If each force results from a different actor's negligence, then each negligent actor may be held liable for the entirety if the ensuing harm.

First Amendment Defense (IIED)

liable for its speech in this case turns largely on whether that speech is of public or private concern, as determined by all the circumstances of the case. Speech on matters of public concern' ... is 'at the heart of the First Amendment 's protection Deciding whether speech is of public or private concern requires us to examine the content, form, and context of that speech, all are necessary to review

Contributory Negligence: A complete defense

o In few jurisdictions where contributory negligence still applies, proof of the plaintiff's contributory negligence will completely absolve a defendant of negligence liability, unless some exception applies. o The defendant must prove that (1) the plaintiff was negligent by failing to use reasonable care to prevent her own injury, and (2) the plaintiff's negligence, in conjunction with the defendant's negligence, actually and proximately caused the plaintiff's injury. o General Effect of Proving Contributory Negligence=If the defendant establishes a defense of contributory negligence, then the plaintiff will recover NOTHING. Even if plaintiff is only 1% contributorily negligent. Negligence per se and Contributory Negligence= A defendant can establish the plaintiff's negligence through the usual methods of proof, such as invoking Negligence per se

Apportionment of Responsibility among Multiple

multiple culpable parties bear some responsibility for the plaintiff's harm. Courts must apportion responsibility among the culpable parties. The way to do this depends if the tortfeasors acted independently or in concert.

One-Satisfaction Rule

o Plaintiff is only entitled to one satisfaction. The plaintiff can recover only the sum of damages awarded and no more. Ex. Plaintiff is awarded 100K in damages against 3 separate defendants, Plaintiff is then limited to a combined recovery of 100K from all 3 defendants.

Foreseeability and Proximate Causation

o An actor will be held liable only for harm that is a reasonably foreseeable result of the actor's negligence.

Type of Harm v. Nature and Extent of Harm=

o Under proximate-cause principles, it is only the general type of harm that must be reasonably foreseeable, not the precise nature or extent of harm. Because the general type of injury was foreseeable, it does not matter that the extent of injury was unforeseeable, so actor would be liable for the extent.

Burden Shifts to Defendants=if the alternative-causes doctrine applies

the burden at trial will shift to each negligent defendant to show that his negligence did not cause the injury. Each defendant who fails to make that showing will be held liable.

Medical Negligence Non Disclosure

the focus is on the physician's duty to inform the patient of the risks of certain medical procedures and, as a result, several factors are considered in determining liability.

Secondary Assumption of the Risk

usually arises if (1) the actor's negligence has created a risk, and (2) the victim appreciates the existence and nature of the risk but consciously chooses to proceed in the face of it. In most comparative fault jurisdictions, secondary assumption of the risk is no longer recognized as a defense.

unlawful invasion (trespass to land)

without the plaintiff's effective consent or without some other, overriding legal privilege to be there.

Special Examples of Superseding Forces

· (1) the crimes and intentional torts of third parties and (2) situations in which the intervening force arises only after the foreseeable risk of harm from the actor's breach of duty has abated.

Strict Liability

· An actor is liable regardless of whether the actor was negligent or otherwise culpable. Generally applies=abnormally dangerous activities, injuries caused by animals, and products liability. o Abnormally dangerous activities=strict liability is imposed for injuries that foreseeably arise from the actor's abnormally dangerous activities. -The activity must inherently create a high risk of significant harm that cannot be eliminated even with reasonable care by all participants, including the victim. -Factors considered in determining whether an activity is abnormally dangerous (1) existence of a high risk of harm to others' persons or property, (2) likely magnitude of harm, (3) inability to eliminate the risk by reasonable care (4) extent to which the activity is not one of common usage in the community, (5) the degree to which the activity is inappropriate to the area, and (6) the extent to which the activity's risk of harm outweighs its usefulness to the community. o Animals: livestock, domesticated animals, and wild animals o Products Liability= requires (1) a defective product actually and proximately caused the victim's injuries, and (2) the actor is liable under a theory of products liability. ·

Intervening and Superseding Forces

· An intervening force in an additional act or force, other than the actor's breach of duty, that contributes to the victim's harm along with the breach. If an intervening force is involved, the question becomes whether the intervening force breaks the causal chain, thereby defeating proximate cause and relieving the actor of liability. An intervening force with this effect is called a superseding force.

Intervening and Superseding Forces

· An intervening force in an additional act or force, other than the actor's breach of duty, that contributes to the victim's harm along with the breach. If an intervening force is involved, the question becomes whether the intervening force breaks the causal chain, thereby defeating proximate cause and relieving the actor of liability. An intervening force with this effect is called a superseding force. o Foreseeable Intervening Force= A intervening force will not break the causal chain and become a superseding force if it is reasonably foreseeable. o Unforeseeable Intervening Forces=Intervening forces that are not reasonably foreseeable become superseding forces that break the causal chain between the actor's breach of duty and the injury, thus absolving the actor's liability. o Exception is foreseeable harms triggered by unforeseeable intervening forces= Sometimes, a particular type of harm is foreseeable, but the catalyst for the harm is an unforeseeable intervening force, especially a natural force. In these cases, courts generally deem the actor's negligence a proximate cause of the victim's injuries. That is because the type of harm is reasonably foreseeable, even if the chain of events leading to it is not.

Assumption of Risk: A Complete Defense

· Assumption of risk is not a defense to intentional torts, unless the plaintiff's conduct amounts to valid consent. o Assumption of the Risk Generally = if the victim (1) actually knows of the existence and the nature of the risk yet (2) voluntarily chooses to proceed in the face of that risk. o Actual Knowledge, the Difference between Assumption of the Risk and Contributory Negligence= The requirement of actual, subjective knowledge of the risk distinguishes assumption of the risk from contributory negligence. If the victim did not actually know but merely should have known about the risk, then contributory or comparative fault applies, not assumption of risk. o Assumption of the Risk and Plaintiff's Unreasonable Behavior= The plaintiff may be barred from recovery under assumption of the risk even if the plaintiff's conduct was reasonable.

Tortfeasors Acting Independently

· Courts will apportion responsibility using (1) causal apportionment if the injury is divisible or (2) fault allocation if the injury is indivisible. o Divisible Injury: Causal Apportionment= A divisible injury occurs if (1) Multiple Tortfeasors contribute to the plaintiff's harm and (2) it is possible to discern which tortfeasor caused what portion of the harm. Each tortfeasor will be responsible for the particular segment of the injury that his specific negligence caused. o Indivisible Injury: Fault Allocation=occurs if multiple tortfeasors contribute to the plaintiff's harm, and the factfinder cannot discern which tortfeasor's actions caused what portion of the harm. In these cases, responsibility is apportioned based on the factfinder's percentage allocation of fault to each party, not on causation.

Joint and Several Liability with Reallocation

· If a jointly and severally liable (or even severally liable) tortfeasor's share of the judgement proves uncollectible, the court may order the remaining tortfeasors to pay the defaulting tortfeasor's share in proportion to their own respective shares of the fault.

Joint and Several Liability

· If multiple defendants are found to be at fault for an indivisible injury, and each defendant is assigned a distinct percentage of fault, the plaintiff may recover 100% of the total award from (1) any one defendant, (2) fewer than all defendants, or (3) all defendants in any combination. Still, the plaintiff cannot recover more than 100% of the total award.

Plaintiff's Ultimate Recovery in Fault-Based Apportionment=

· If responsibility is apportioned based on fault, the court must decide how much money the plaintiff can recover from each defendant. The two ways is several liability and joint and several liability.

Physical Harm

· Involves any impairement to the physical condition of a person's body or to real or tangible personal property. o Includes Exacerbation of prior injury or condition o General recovery for physical harm=A plaintiff may always recover to the full extent if physical harm suffered due to the defendant's negligence. Including impaired earning capacity, medical bills, pain and suffering, and emotional distress stemming from bodily injury.

Emotional Harm

· Involves any impediment, injury, or disturbance to someone's tranquility of emotion or peace of mind. A plaintiff's ability to recover for emotional harm Is generally more limited than the ability to recover for physical harm. o Emotional Harm is Traceable to Physical Harm: Recovery Allowed= The plaintiff can recover for both the physical harm and any resulting emotional harm. o Emotional Harm Standing Alone: Usually no recovery= If emotional harm is the only harm arising from the defendant's negligence, the plaintiff generally cannot recover for it, unless the plaintiff established the specific elements of negligent IIED.

Satisfaction and Release

· generally discharge a tortfeasor's judgement liability to a plaintiff to one extent or another. o Satisfaction and Release Distinguished= Satisfaction means that the plaintiff has received payment against the judgment. If tortfeasors are jointly liable for the same injury, any payment against the judgment reduces total liability on the judgement, and discharges all tortfeasors liability to the extent of the payment. Release means that the plaintiff has agreed to discharge one or more tortfeasors' judgement, usually under the terms of a settlement agreement. o Effect of Release on Liability of Remaining Jointly Liable Tortfeasor= A release if one tortfeasor liable with others for the entire harm generally has no effect on the other's liability, unless the release provides otherwise. Many jurisdictions will reduce the liability of the remaining tortfeasors (1) any dollar amount paid by the released tortfeasor against the judgement, or (2) the percentage of the released tortfeasor's liability, as determined at trial.

Economic Harm

· is purely monetary in nature, such as lost wages or profits not traceable to physical harm, generally not recoverable. o Economic Harm Traceable to Physical Harm= a plaintiff can recover for economic harm that is traceable to physical harm. Ex. Plaintiff may lose wages due to a bodily injury.

Vicarious Liability

· occurs if one party is held liable for another party's tortious conduct. It is imposed not because the vicariously liable party has done nothing wrong, but because of a special relationship between that party and the primary tortfeasor. Ex. Respondeat Superior which holds employers liable for many torts committed by their employees within the scope of employment. o Negligent Hiring or Retention= (1) the employer knows or reasonably should know that the employee is incompetent, negligent, or violent in a way that creates an unreasonable risk of harm; (2) the employee injures the victim because of these characteristics; and (3) the employer could have prevented the injury by using reasonable care in the hiring process or by terminating the employee. o Negligent Supervision= (1) the actor owes a duty to protect the victim from a third party's tortious conduct, (2) the actor fails to use reasonable care in supervising the third party, and (3) the third party harms the victim as a result. o Negligent Entrustment= (1) the actor entrusts a third party to participate in an activity or operate a potentially dangerous instrumentality, even though (2) the actor knows or reasonably should know that the third party is likely to act in a way that creates an unreasonable risk of harm to the third party or others.