Torts Bar Strats

In a prima facie case for negligence, there is:

Duty, breach, actual and proximate causation, and damages

Duty:

Standard of care based on the relationship of the parties. There is a duty owed to all foreseeable plaintiffs.

Negligence Per Se

There must be a statute being violated, protected persons, and protected harm

Protected Persons

Did the person who was harmed fall in the category of people the statute was meant to protect?

Protected Harm

What harm was the statute created to avoid?

Actual Causation:

Direct link or connection between defendant’s conduct and plaintiff’s harm.

Proximate Causation:

Defendant’s conduct increased the likelihood of the plaintiff’s harm.

Respondeat superior

An employer is liable for torts of an employee that occur within the scope of the employment relationship

A principal isn’t vicariously liable for IC so long as

Principal doesn’t control the manner and method in which IC works

Exceptions for IC and vicarious liability

If IC is engaged in inherently dangerous activities or the principal’s duty is nondelegable

Acting within scope of employment:

Conduct the employee is hired to perform within authorized time and space limits, and motivated in some way to serve employer

General duty of aid?

There is no general duty to come to the aid of someone else

If you start aiding someone,

you assume a duty only if that person relied to their detriment on your promise or if you left them in a worse position.

Special relationship of mental health provider:

Warn identifiable individuals when in foreseeable danger from credible threats of serious violence that have been made by a patient

Abnormally dangerous activities factors:

High degree of risk, likelihood harm will be great, inability to eliminate risk by reasonable care, extent activity isn’t common usage, inappropriateness of where activity is carried out, and extent value to community is outweighed by dangerousness

Rescuers

There is still liability for injuries that are typical in the situation

Battery:

Act which brings harmful or offensive contact, intent to bring about harmful/offensive contact, and causation

Assault:

Act creating reasonable apprehension of immediate harm or offensive contact, intent to create apprehension, causation

Intentional Infliction of Emotional Distress

Extreme and outrageous conduct, intent to cause plaintiff to suffer, causation, and damages - severe emotional distress

Duty owed to trespasser

No duty to undiscovered trespasser. Duty to warn discovered trespassers or make safe artificial conditions that are known to the landowner and have a high risk of harm

Licensee:

Enters land with permission for their own purpose or business. Also social guests

Duty to licensee:

To warn or make safe a known dangerous condition. No duty to inspect

Invitee:

Person invited expressly or impliedly to enter. Think museums or stores

Duty to invitees:

To warn or make safe dangerous conditions and make reasonable inspections

Obviousness of Danger

If invitee should obviously know of dangerous condition, no duty to warn

Contributory negligence

Bars plaintiff’s right to recover BUT almost never used

Partial Comparative Negligence

If plaintiff’s negligence was more serious than defendants, may bar recovery

Assumption of Risk

If plaintiff knew of the risk and voluntarily assumed it, they may be denied recovery

Pure Comparative Negligence

The plaintiff recovers a percentage of damages based on their own negligence

Wild animals

Owners are strictly liable

Domestic Animals

Owners are liable if there’s knowledge of dangerous propensities

Transferred intent does not apply to

IIED or conversion

Prima facie case for intentional tort

1. An act by the defendant

2. Intent by the defendant

3. Causation of result to plaintiff from defendant’s act

Transferred Intent

When the defendant intends to commit a tort against one person but instead commits a different tort against that person, commits the same tort as intended but against a different person, or commits a different tort against a different person

How to invalidate consent

No capacity due to age or mental condition; fraud; duress or coercion

Shopkeeper’s Privilege

If store reasonably believes plaintiff was a shoplifter, they can be held in a reasonable manner for a reasonable period of time.

Private and public necessity with liability

Public necessity is a complete defense, but with private necessity defendant is still liable for damages

What is the general standard of care?

That of a reasonably prudent person

What is the standard of care for professionals?

Ordinary member of that profession in good standing.

Res Ipsa Loquitur

There is an inference of breach when the instrumentality that caused the plaintiff’s injury was exclusively in the control of the defendant, and the accident that occurred is the type normally associated with negligence.

Eggshell Plaintiff

You take the plaintiff as you find them and are liable for all injuries caused, even if unforeseeable.

Strict Liability Categories

Wild animals, abnormally dangerous activities, and defective products

Strict Products Liability

1. Commercial supplier

2. Defective product (unreasonably dangerous to consumers)

3. Defect existed when product left defendant’s control

4. Plaintiff use was reasonably foreseeable

5. Plaintiff suffered physical injury or property damages

Manufacturing Defect

One product is more dangerous than the rest that were made correctly

Design Defect

When all products of a line are the same but have dangerous propensities

Information Defect

Failure to give adequate instructions or warning

Conversion

Plaintiff must show that the defendant intentionally interfered with the plaintiff’s right of possessions, and the interference was so serious in nature as to warrant that the defendant pay the full value of the chattel

Defamation

1. Defamatory statement that specifically identifies the plaintiff

2. Published to a third party (communication to a third party who understands it)

3. Falsity of defamatory language

4. Fault on the defendant’s part

5. Damage to the plaintiff’s reputation

Libel

Defamation embodied in permanent form such as writing or printed publication

Slander

Spoken defamation that tries to say: (1) adversely reflects on the plaintiff’s business or profession; (2) the plaintiff has committed a serious crime; (3) Impute that the plaintiff engaged in serious sexual misconduct; or (4) that the plaintiff has a loathsome disease

Exception to Defamation

There is a qualified privilege when the recipient has an interest in the information and it is reasonable for the defendant to make the publication of the statement

Private Nuisance

Involves nonphysical intrusions that causes a substantial interference and courts balance the gravity of the harm to the plaintiff against the social utility of the defendant’s conduct

Unascertainable Causes Approach

When two or more persons are negligent but uncertainty exists as to which caused the plaintiff’s injury. The plaintiff must prove only that the harm was caused by one of the defendants, then the defendants have the burden to show their negligence wasn’t the cause

False Imprisonment

1. An act of restraint that confines or restraints plaintiff to a bounded area (by either physical barriers or force);

2. Intent by defendant to confine or restrain the plaintiff to a bounded area; and

3. Causation

Dramshop Acts

Create a cause of action in favor of any third person injured by an intoxicated vendee based on negligence principles

Attractive Nuisance

1. Dangerous condition present on the land owner knew/should’ve known about;

2. The owner knew/should’ve known children frequent the vicinity;

3. Condition is likely to cause injury because it is dangerous;

4. The expense of remedying the condition is slight in comparison to the risk