Torts

Learned Hand Equation

PL > B

B = Burden of taking precautions

P = Probability of loss

L = Gravity of loss

Misfeasance

If Δ’s conduct has created a risk of physical harm, Δ owes duty of reasonable care to protect against foreseeable harms.

EXCEPT:

(1) Premises liability

(2) NIED

Nonfeasance

If Δ’s conduct has not created a risk of physical harm, Δ owes no duty of care.

EXCEPT: Affirmative Duty

(1) Special relationship

(2) Continuing risk

Trespassers

Occupier of land owes no duty of reasonable care to trespassers

EXCEPT:

(1) Intentional or reckless injury

(2) If occupier knows or has reason to know of trespassing, apply licensee rules.

(3) Occupier has a duty to rescue trapped or injured entrants

Licensees

If a passive condition on the land presents a latent danger and the occupier knows of it or has reason to know of it and the licensee is likely to encounter it, the occupier has a duty to warn.

If active operation creates risk of foreseeable harm, occupier owes duty of reasonable care.

Invitees

Occupier has a duty of reasonable care as to both passive conditions and active operations.

(1) Sometimes requires inspection and remediation

(2) Can extend to intervening forces that are not negligent, negligent, or criminal acts of 3rd parties

(3) Some open and obvious dangers require no warning

Breach

Δ failed to behave like a reasonably prudent person exercising reasonable care under the circumstances.

NIED Zone of Danger

(1) π was in the zone where physical injury was threatened, and (2) π feared for his own safety

NIED Bystander Liability

(1) Δ’s negligence caused serious physical injury to a third party; (2) the π is closely related to the third party; (3) π was present at the scene of the injury when it occurred and was contemporaneously aware of the injury; and (4) π suffers serious emotional harm as a result.

NIED Independent Duty

Handling of corpses, improper delivery of telegrams, misdiagnosis

Off Premises Liability

(1) Natural conditions - no duty of reasonable care unless it is tree AND occupier knows or has reason to know of defect to tree

(2) Artificial conditions - duty of reasonable care for foreseeable harms off premises

Negligence Per Se

(1) Does the statute set the standard of care?

a. Whether π is a member of the class the legislature intended to protect

b. Whether the hazard that occurred was one the legislature intended to protect against

c. Whether the statute is appropriate for use as the standard of care

(2) Does Δ offer an excuse? - incapacity, ignorance, inability, emergency, or increased risk.

Res Ipsa Loquitur

(1) Type of event

(2) π has sufficiently eliminated all other possible causes

But-for test

π would not have been injured but for Δ’s negligence

Modifications of Factual Cause

Self-proving cause: Reynolds Greatly Increased Risk - Δ’s negligence factual cause

Indeterminate cause: shift burden of proof to which party is true cause to the defendants

Dependent concurrent causes: all tortfeasors satisfy but-for test

Multiple sufficient causes: Each sufficient cause is factual cause if substantial or overdetermined

Multiple causal sets exception: Collective action of all parties are factual causes, aggregated but-for test

2nd Restatement Proximate Cause

Are π’s injuries foreseeable result of Δ’s breach?

Intervening/superseding cause doctrine

When a second (or third) subsequent force acts on the plaintiff and contributes to the plaintiff’s injury, we ask whether the original defendant’s negligence enabled and increased the risk posed to the plaintiff by those second subsequent forces.

Original tortfeasor’s negligent act unrelated to follow-on injuries = superseding cause, original tortfeasor is not the proximate cause.

Follow-on injuries are foreseeable result of the original tortfeasor’s negligence = intervening cause, original tortfeasor liable

Unforeseeable Injury

(1) Unforeseeable plaintiff - No liability

(2) Unforeseeable manner of harm - Liability

(3) Unforeseeable extent of harm - Liability

(4) Unforeseeable type of harm - Liability unless very different type or very remote in place or time

Rescue Doctrine

Danger invites rescue, so negligent actor is proximate cause of injuries to rescuer, rescuee, or third parties.

Road law

(1) Landowner owes duty for property immediately adjoining road BUT not considerable distance from road

(2) Duty if there is an intentional deviation for casual purpose associated with travel

Implied Licensee

Privileged to enter for a limited time and purpose. Door-knocking rule.

Sudden Emergency Doctrine

Δ excused from duty of reasonable care when:

(1) Sudden, unforeseeable emergency

(2) No time for deliberation

(3) Not self-created

Standard of care then reflects what a reasonable person would do in that situation

Damages

(1) Must have actual loss

(2) Economic (medical care, lost earning, loss of property)

(3) Non-economic (pain and suffering, permanent disability)

(4) Psychological damages

Express Assumption of Risk

π expressly assumes the risk via a release and is barred from recovery when (1) π’s injury is within the scope of the release, and (2) the release doesn’t violate public policy

Release violates public policy

(1) when it absolves the actor of conduct more culpable than negligence, or (2) it implicates the public interest

Tunkl Factors

(1) Public regulation

(2) Great importance/necessity

(3) Public offering

(4) Bargaining advantage

(5) Standardized contract w/ no additional protection

(6) Control/Risk exposure - placed under the control of the provider, exposing them to risk from the provider's negligence

Traditional Implied Assumption of Risk

(a) whether π was aware of the risk, including its magnitude, and (b) whether π voluntarily encountered the risk anyway

Modern Implied Assumption of Risk

Primary: π not negligent in voluntarily encountering open risk - no recovery (PF case breach)

Secondary: π voluntarily takes unreasonable risk - comparative fault

Tricky: π consciously takes extreme risk but it is best option - probably recovery

Joint and Several Liability

(1) tortfeasors act in concert

(2) vicarious liability

(3) indivisible injury

Respondeat Superior

(1) the worker is an employee

(2) the tort occurred within the scope of the worker’s employment

Joint enterprise

Members of a group vicariously liable for one anothers torts when:

(1) an agreement, express or implied, among members of group

(2) a common purpose to be carried out by group

(3) community of pecuniary interest in purpose among members

(4) equal right to voice direction of to enterprise/equal right of control

Bailments

No liability to bailor for bailees’ torts except family car rule

Strict Liability Analysis

(1) Strict liability applies

(2) Δ can escape if not proximate cause

(3) reduce recovery if π negligently assumed risk of injury

Animal Strict Liability

Keeper liable when:

(1) Trespassing animals: livestock go on another’s property and damage or injure UNLESS strays off road

(2) Wild animals: non-native species proximately caused injuries

(3) Domestic animals: animal injures and keeper knew/should have known of vicious propensity

Abnormally Dangerous Activity

(1) High degree of risk of harm

(2) Likelihood harm will be great

(3) Inability to mitigate risk

(4) Extent to which activity is uncommon

(5) Inappropriateness of location of activity

(6) Value to community weighed against risk

Strict Proximate Cause

Apply 3rd Restatement proximate cause analysis.

Not proximate cause:

(1) Acts of god

(2) 3rd party acts

π Negligence Strict Liability

(1) π takes negligently disregards risk - comparative fault

(2) π negligently fails to understand risk - Δ completely at fault

Assault

(1) intentionally (2) placing π in reasonable apprehension of imminent physical contact that would be objectively harmful or offensive

Battery

(1) intentionally (2) making physical contact with π’s person (3) that is objectively harmful or offensive

False imprisonment

(1) intentionally (2) confining another to a bounded space, and (3) the other is conscious of the confinement or is otherwise harmed by it

Trespass to chattels

(1) intentionally (2) physically interfering with another’s chattel, and (3) dispossessing π or harming the chattel

Conversion

(1) intentionally (2) exercising dominion or control over another’s chattel (3) in a way that seriously interferes with π’s possessory interest

Self-defense

(1) to use reasonable force (2) to defend one’s self (3) from some types of another’s intentionally tortious conduct

IIED

(1) intentional or reckless (2) extreme and outrageous conduct (3) that causes (4) severe emotional harm

Trespass to land

(1) intentionally (2) entering another’s land without permission

Private necessity

(a) Δ acted in response to a serious and imminent threat to his life or property or the reasonable appearance of such a threat

(b) Δ’s actions are a reasonable response to such a threat

(c) Δ must pay for any actual harm inflicted upon π’s property

Public necessity

(a) Δ acted in response to a serious and imminent threat to public safety or the reasonable appearance of such a threat

(b) Δ’s actions are a reasonable response to such a threat

(c) Δ need not pay for any actual harm inflicted upon π’s property

Third Restatement Proximate Cause

Whether what made Δ’s conduct negligent is the fact that it increased the risk of the same general type of harm

Multiple Sufficient Causes 2d v. 3d Restatement

2d Restatement - Substantial cause: you can escape liability in very narrow circumstance when your cause truly was small (throwing lit match into blazing fire example)

3d Restatement - Overdetermined cause: no rule, you are factual cause if it is multiple determined cause case