Quizlet Import

Duty

Is a risk sufficiently foreseeable that a reasonably prudent person would act to prevent it?

No duty to rescue unless

D created the danger

D has a special relationship to victim

D has already begun to rescue

Hand Formula

Reasonable Decision Test

Proper care is if the burden < probability of harm x potential loss

Standard of Care for ordinary adults

Reasonably prudent person in same or similar circumstances

Standard of Care for children

Reasonable child of same age and experience

Unless they are doing an adult activity

Standard of Care for professionals

Ordinary member of profession

Evidence for SoC - Ordinary

common sense

Evidence for SoC - Professional

expert testimony and requirements of that profession

Evidence for SoC - Regulated by statute

Negligence per se

P is in class of persons that statute was intended to protect

Harm was kind that statute was intended to prevent

Application of statute is practical, desirable, and appropriate

Breach

Has the duty been violated?

Circumstantial Evidence of Negligent Act

Constructive Noticee

Res Ipsa Loquitur

Constructive Notice

Hazard creating unreasonable risk was present long enough that D should have been aware

Res Ipsa Loquitur

The thing speaks for itself

Instrumentality that caused injury was in D's exclusive control

Event does not happen without negligence

Direct Evidence of Negligent Act

Lack of Informed Consent

Lack of Informed Consent

D failed to inform P of material risks and alternatives

P would not have consented if informed

Risks not mentioned occurred and caused damages

Unless P was unconscious and procedure was necessary

Causation

Was it reasonably foreseeable that the breach would probably cause this general type of harm to this P?

Actual Cause (Cause-in-Fact)

Raises purely factual questions about causality

Is established by either: but-for test, substantial factor, if the it's individual Ds, corporate Ds, or loss of chance

But-For Causation Test

But for D's negligence, P would not have been harmed

Substantial Factor

Several causes commingle and cause injury, and any cause alone would have been sufficient to cause injury

Individual Ds Causation Test

Two or more persons acted in the same negligent manner towards P and it is uncertain who caused injury, so burden of proof shifts to Ds to show their act was not the cause

Corporation Ds Causation Test

An entire industry was negligent towards P in the same way and it is uncertain which D caused P's injury, so all corporate Ds pay damages according to their market share

Loss of Chance

Although P would have likely suffered the harm without D's negligence, D's negligence nonetheless substantially reduced P's chances of avoiding the harm

Joint and Several Liability

When separate negligent acts combine to form single injury, each tortfeasor is responsible for entire result

Proximate Cause (Legal Cause)

Is based on policy and values based consideration about how far to extend liability

Is established by either: foreseeability or directness/remoteness

Foreseeability

At the time of D's negligent act/omission, was this general type of harm to this P a reasonably foreseeable result?

Directness/Remoteness

How far removed from D's negligent act was P's injury?

Were there any intervening causes?

Nonfeasance

The failure to act when one should

Omission

Misfeasance or Malfeasance

There was an act but it was done negligently or improperly

Intervening Cause

Anything that happens between D's negligent act and P's injury

Superseding Cause

An event that is not a foreseeable consequence of D's negligence, and thus breaks chain of causality and cuts off D's liability

Will criminal act of third party supersede?

Likely to supersede unless D had a duty to prevent this type of criminal act

Will negligent act on third party supersede?

Less likely to supersede, especially if D had a duty to prevent his type of negligent act

Will P's suicide supersede?

Likely will supersede, unless result of "irresistible impulse"

Will rescue doctrine supersede?

Will not supersede because negligent act that puts a person in need of rescue makes rescue foreseeable and extends duty to rescuer

Will subsequent events supersede?

Original tortfeasor generally still responsible for consequences of negligent self-defense, negligent rescue, subsequent malpractice, subsequent injury or disease caused by initial one

Damages

Did P suffer actual damages?

No nominal damages for negligence

Negligent Infliction of Emotional Distress

An actor whose negligent conduct causes serious emotional harm to another is subject to liability to the other if the conduct places the other in danger of immediate bodily harm and emotional harm results from the danger

Physical Impact Test

P's suffered a physical injury or impact

This rule is rejected today

Zone of Danger Test

Based on duty and foreseeabilityIf one's carelessness placed another in grave physical danger, regardless or whether serious physical injury actually occurred, the resulting mental trauma is deemed reasonably foreseeable and therefore actionable

Relative Bystander Test

1. Relative of the victim

2. Present at the scene

3. Suffered ED more severe than another witness

Negligence Per Se Excuses

1. Incapacity

2. Justifiably unaware of compliance

3. Unable to comply

4. Emergency not created by actor

5. Compliance would be a greater risk

Concurrent Causation

Separate acts of negligence combine to produce a single injury

Each tortfeasor is responsible for the entire result

Eggshell Plaintiff

A particularly sensitive ptf may recover for seemingly disproportionate injuries if def was aware of ptf's sensitivity

Probabilistic Damages

Ds take the Ps as they find them and proven injuries that seem excessive in comparison to the negligence are compensable

Cardozo's Opinion for Proximate Cause

D's conduct must be careless toward the P for the P to have a cause of action in negligence

Framework Identification

Intra-Framework Analysis

Framework Validation

Framework Identification

No cause of action in negligence exists if the D's conduct does not constitute a breach of duty owed to the P

Intra-Framework Analysis

As a matter of doctrine, negligence requires the P to show a wrong to them

Framework Validation

The weight of existing legal authority supported his framework

Andrew's Dissent for Proximate Causation

We each owe a general duty of reasonable care to society and if we breach that duty then society should expect that unforeseeable damages are foreseeable

Contributory Negligence

A P who is negligent, and who negligence is a proximate cause oof their injuries, is totally barred from recovery

Last Clear Chance

D had an opportunity to prevent the harm, the existence of this opportunity wipes out the effect of P's contributory negligence

Comparative Negligence

The trier of fact weights P's negligence against that of D and reduces P's damages accordingly

Partial Comparative Negligence

If the P is 50% or more at fault, they will recover nothing

Pure Comparative Negligence

Allows recovery no matter how great P's negligence is

Intent

The actor wants to come in contact with another in a way that harms, is offensive, causes apprehension (w/o contact), or recklessly

Single Intent

Intending the cause without intending the effect of contact.

Def intends the contact but not any harm.

Intends to place the ptf in apprehension.

Dual Intent

Intending the cause and intending the effect of contact.

Intentional torts against persons

Assault

Battery

False Imprisonment

Defamation (Slander or Libel)

Invasion of privacy

Misappropriation of publicity

Intentional infliction of emotional distress

Intentional torts against property

Trespass to land

Trespass to and conversion of person property

Assault

Intends to cause a harmful contact with the other person or a third person.

Actor intends to cause imminent apprehension/fear of a harmful contact.

Battery

Intends to cause a harmful contact with the other person or a third person.

Intends to cause imminent apprehension/fear of a harmful contact.

False Imprisonment

The intentional and unauthorized infliction of confinement

False Imprisonment Elements

Intentionally confined

Ptf did not consent

Confinement was not privileged

Intentional Infliction of Emotional Distress

Ptf must prove the def intended to cause emotional distress and did cause severe emotional distress

IIED Def's Factors

Desire to cause emotional distress

Knows ptf will suffer distress

Recklessly disregards the high probability that it will occur

IIED Claim Elements

Intentional or Reckless

Extreme and Outrageous

Connection between wrongful conduct and the ED

Must be severe

IIED Defenses

1st Amendment

Property Torts

Conversion

Trespass

Nuisance

Ultra-hazardous Activities

Trespass

Def voluntary and intentional contât with the possessor's land for interference with the possessor's right of exclusive control and possession

Trespass Conditions

Invasion of the property

Setting something in motion

Failure to leave property

Failure to remove interfering items

Failure to remain within the scope of the permission to enter

Trespass to Chattels

Any intentional interference with a person's use or possession of the chattel

Occurs when the ptf can prove some actual harm has been done

Conversion

Private, civil, cause of action for theft

Damages is the value of the goods converted

Conversion Factors

Extent and duration of the actor's exercise of dominion or control

Actor's intent to assert a right in fact inconsistent with the other's right of control

Actor's good faith

Extent and duration of the resulting interference

Harm done to the chattel

The inconvenience and expense caused to the other

Personal Damages

Mental or physical pain or suffering

Inconvenience

The loss of intellectual gratification or physical enjoyment

Property Damages

Measure of recovery for this will be either diminution in value for partial destruction, or market value for total destruction

Economic Damages

Loss of wages

Inability to work

Medical expenses

Nominal Damages

Only for intentional torts

Ptf may recover for mental suffering, humiliation, loss of time, inconvenience, etc.

Compensatory Damages

General Damages

Noneconomic losses for which the amount is speculative

Mental/Physical pain/suffering, inconvenience, loss of gratification, losses of life, etc.

Special Damages

Can be calculated with certainty

Property Damages

Medical Expenses (Past/Present/Future)

Pain and Suffering

The discomfort, inconvenience, anguish, and emotional trauma that accompanies an injury

Loss of Enjoyment of Life

Detrimental altercations of the person's life or lifestyle or the person's inability to participate in the activities or pleasures of life that were formerly enjoyed prior to the injury.

Damages related to the ptf's inability to engage in pleasurable activities are known as "hedonic" damages

Loss of Consortium

Family members suffer as a result of a direct injury to another family member

Same persons who can recover for wrongful death: spouses, children, parents, and siblings

Collateral Source Rule

Recovery is not diminished because of insurance benefits received from sources independent of the tortfeasor's contribution.

Applies to: insurance, gratuities, employment benefits

Economic Loss Rule

Damages are purely economic and without accompanying personal injury or property damage

Exemplary/Punitive Damages

Punishment for def's behavior not ptf's loss

Trier of fact has discretion in awarding

Maritime

Product Liability

Insurance Law

Federal Law

Proof that the injuries were caused by a wanton or reckless disregard for rights and safety of others

Primary Defenses

Consent

Self-Defense

Defense of Others

Defense of Property

Not a Defense

Assumption of Risk

Temper

Voluntary Intoxication

Express Consent

Given by words or affirmative conduct

Implied Consent

May be manifested when a person takes no action, indicating an apparent willingness for the conduct to occur

Informed Consent

Must disclose information that will influence a ptfs decision unless it was an emergency

Self-Defense and Defense of Others

Was the def privileged to use some kind of force in self-defense?

If so, was the degree of force used proper?

Defense of Property

A possessor land cannot do indirectly that which they could not do immediately and in person

One may not be liable for damages to another's property if the damages were caused through good faith and apparent necessity

Negligence Elements

Duty

Breach

Actual and

Proximate Causation of

Damages/Injury

Duty

Must prove def owed a legal duty to act in a way to avoid unreasonable risks towards others

General Duty Theory

"A" owes a duty to exercise reasonable care to avoid foreseeable harm to "B" whether a relationship exists with "B" or "B" is a stranger

Limited/Qualified Duty Theory

"A" only owes a duty to "B" under certain limited circumstances

This duty creates: Premises Liability, Pure Economic Loss, Affirmative Duties to Act or Rescue

Did the def's "act" cause harm or is the def accused of "failing to act"?

Breach

Prove that def failed to conform to the duty because of "carelessness" or "lack of reasonable care"

Actual Cause of Injury

Prove def's breach of a duty was the "cause in fact" of the damage/injury

The injury would never have happened "but for" the breach

Proximate Cause of Injury

Prove a sufficiently close connection, or casual link, between the def's breach of a duty and the resulting harm, to justify holding the def liable as a matter of policy

Actual Damage

Prove that the def's breach of a duty resulted in some sort of damage