Torts

Actual Knowlege

Direct and Clear

Constructive Knowledge

Knowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person.

Respondeat Superior

A doctrine holding an employer or principal liable for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency

Vicarious Liability

Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties… An employer whose employee commits a tort may be liable in his own right for negligence in hiring or supervising the employee.

Concurrent Tortfeasors:

two or more tortfeasors whose simultaneous actions cause injury to a third party (jointly and severally liable)

Joint Tortfeasors

Two or more tortfeasors who contributed to the P’s injury and who may be joined as Ds in the same lawsuit

Successive Tortfeasors

Two or more tortfeasors whose neg. occurs at different times and causes different injuries to the same 3rd party

Gross Negligence

1. P must prove that viewed objectively from the actor’s standpoint, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

2. The actor must have actual, subjective awareness of the risk involved but nevertheless proceeds in conscious indifference to the rights, safety or welfare of others

Products Liability

Defective (duty and breach) if manufacturing defect, design defect, or inadequate instructions.

RTT 2

A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings.

RPPSSC

Would a reasonable person of ordinary prudence, in the position of the D, have conducted himself as the D did?

Mental disabilities?

Majority- if a mental state is so low that it prevents the actor from even understanding that danger exists then the actor is relieved of negligence.

RST and minority- mental deficiency does not relieve negligence or contributory negligence.

Intoxication is never an excuse - considered temporary mental impairment

RST 238

Unless the actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable person under like circumstances.

RST 298

The greater the danger, the greater the care which must be exercised.

RST 289

The actor is required to recognize that his conduct involves a risk of causing an invasion of another’s interest if a reasonable man would do so while exercising

1. such attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence, and judgment as a reasonable man would have and

2. Such superior attention, perception, memory, knowledge, intelligence, and judgment as the actor himself has.

Physical Disability?

Due care is such care as an ordinarily prudent person with the same disability would exercise under the same or similar circumstances.

Child reasonable person?

AIMTE

Act as a reasonable child of like age, intelligence, maturity, training, and experience.

Child Standard Exception?

Dangerous activities, adult activities, powerful motorized vehicles

Minimum Age Rule

Majority- did they have appreciation of harm

Illinois Rule - 7

RTT -3

Sudden Emergency?

Sudden Emergency Doctrine: consider whether conduct was affected by sudden and unexpected encounter with real or reasonably seeming to be real danger.

1. Must arise suddenly and unexpectedly

2. Actor did not create

Fallback way of proving breach?

Learned Hand: B<LxP

Violation of Statute?

NPS-

Requirements

1. P must be in protected class

2. Statute sought to protect against that particular injury

RST 286

Court may adopt as standard of conduct of a reasonable man the requirements of statute whose purpose is to

1. protect that class of persons

2. to protect against that kind of harm

How can NPS be excused?

Actor has neither actual or constructive knowledge of a violation

Act with no direct evidence?

Res Ipsa requirements

1. the nature of accident suggests that it was probably due to negligence

2. D had exclusive control over whatever caused the accident

3. P lacks direct evidence of the event relative to the info available to the D`

Industry Custom for Breach

May establish breach so long as everybody is not being unreasonable.

Beach of higher standards of individual custom is less convincing

Duty to act?

No duty to act Unless special relationship

No duty to save unless D legally responsible for putting P in position

Exceptions: joint venture, start providing aid, special relationship

Assumption of duty

If start helping don’t leave worse off - good Samaritan laws may negate liability.

RST 324

One who takes charge of another who is helpless to adequately aid or protect himself is subject to liability to the other for any bodily harm caused by him by

1. failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or

2. the actor’s discontinuing his aid or protection if by doing so he leaves the other in a worse position than when the actor took charge of him.