Torts Essay Rules

Basic Standard of Care

all persons owe a duty to behave with the same care as a rxbly prudent person would to avoid injuring foreseeable victims

Children Standard of Care

• child will be held to standard of care of child of like age, intelligence, and experience

• child under age of 5 usually without capacity to be negligent

• when child engages in potentially dangerous activity that is normally undertaken only by adults, the child will be required to conform to the same standard of care as adults engaging in the activity

Professional Standard of Care

• professional is required to possess and exercise the knowledge and skill of an average member of the profession or occupation in good standing

• for doctors, courts apply national standard of care

• doctor proposing course of treatment has duty to provide patient with enough info about its risks to enable the patient to provide informed consent to the treatment

Duty to Known Trespassers

owner must warn or make safe any conditions that are

• artificial

• highly dangerous - involving risk of death or serious bodily harm

• concealed

• known to land possessor in advance

Licensee

one who enters into land with possessor’s permission or for their own purpose or business, rather than for possessor’s benefit

owner has duty to warn or make safe hazardous conditions that are

• concealed

• known to land possessor in advance

Invitee

enters onto land in response to invitation by possessor of the land for purpose connected with business of land possessor or as members of the public for a purpose for which the land is held open to the public

duty to invitees regarding hazardous conditions that are

• concealed

• known to land possessor in advance or could have been discovered by rxbl inspection

Attractive Nuisance - Trespassing Children

• dangerous condition on land that owner is or should be aware of

• owners knows or should know children might trespass on the land

• condition is likely to cause injury (dangerous bc children’s inability to appreciate the risk)

• expense of remedying the situation is slight compared with magnitude of risk

Statutory Standards of Care

replaces more general common law duty of care if

• P is within protected class

• statute was designed to prevent type of harm suffered by P

unexcused violation is negligence per se - establishes conclusive presumption of duty and breach

Affirmative Duties to Act

• special RS

• peril due to own conduct

• assumption of duty by acting - Good Samaritan Statute exempts doctors, nurses, etc. from liability for ordinary but not gross negligence

Affirmative Duty to Prevent 3rd Party Action

• generally no duty, but will be imposed when D had special RS with 3rd person that gave D the actual ability and authority to act and D knew or should have known that the 3rd person was likely to injure the other person

• most states, special RS btw patient and mental health provider imposes duty on provider to warn of credible violent threats that have been made by a patient when the potential victims are readily identifiable

Res Ipsa Loquitur

very occurrence of the event may tend to establish breach

• accident causing injury is type normally associated with negligence

• negligence is probably attributable to D—instrumentality was in exclusive control of D

if P makes prima facie case, directed verdict may be given

Merged Causes - Substantial Factor Test

where several causes bring about the injury and any one alone would have been sufficient to cause the injury, D’s conduct is cause in fact if it was a substantial factor in causing the injury

Proximate Cause

D generally liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts (foreseeability)

Assumption of Risk

• P may be denied recovery if they assumed the risk of any damage caused by D’s act—must have known of risk and voluntarily proceeded in face of risk

• implied assumption of risk: risk is one that average person would clearly appreciate UNLESS there is no available alternative to proceeding in the face of situations involving fraud, force, or emergency

Joint and Several LIability

under common law, when 2 or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable to P for entire damage incurred

NIED - Near Miss

• D creates foreseeable risk of physical injury

• P was within zone of danger

• P must suffer physical symptoms from distress

NIED - Bystander

bystander outside zone of danger who sees D negligently injuring another can recover damages for their own distress as long as

• P and person injured are closely related

• P was present at scene of injury

• P personally observed or perceived the event

• most states do not require physical symptoms

NIED - Special RS btw P and D

• duty arises from RS btw P and D such that D’s negligence has great potential to cause emotional distress—doctor’s misdiagnosis that patient has terminal illness; mortuary’s negligent cremation contrary to family’s instructions

• most states drop requirement of physical symptoms

Consent

• P’s valid consent to D’s conduct; D must stay within boundaries of consent; individuals without capacity are deemed incapable of consent

• express

• implied: that which a rxbl person would infer from custom and usage or P’s conduct; implied by law when action is necessary to save person’s life or some other important interest in person or property

Defense of Property

• one may use rxbl force to prevent commission of tort against their real or personal property

• request to desist or leave must first be made unless clearly futile or dangerous

• does not apply once tort has been committed

Shopkeeper’s Privilege

can detain suspected shoplifter for investigation if

• there is rxbl belief as to fact of theft

• detention is conducted in rxbl manner an only nondeadly force can be used

• detention only for rxbl period of time and only for purpose of making investigation

Necessity

person may interfere with real or personal property of another when rxbly and apparently necessary in an emergency to avoid injury from a natural or other force when the threatened injury is substantially more serious than the invasion that is undertaken to avert it

Private Nuisance

• substantial unrxbl interference with another private individual’s use or enjoyment of property

• SI = interference that is offensive, inconvenient, or annoying to average person in community

• unrxbl if severity of inflicted injury outweighs utility of D’s conduct

Public Nuisance

• act that unrxbly interferes with health, safety, or property rights of community

• for private party to recover, must have suffered unique damage not suffered by community at large

Strict Liability - Domesticated Animals

owner not strictly liable for injuries caused by domestic animals (including farm animals) unless they have knowledge of that animal’s dangerous propensities that are not common to the species

Strict Liability - Abnormally Dangerous Activities

• activity must create foreseeable risk of serious harm even when rxbl care is exercised by all actors

• activity is not matter of common usage in the community

• D’s liability only extends to foreseeable Ps; harm must result from kind of danger to be anticipated from the dangerous activity (including harm caused by fleeing from perceived danger)

Products Liability - 5 Theories of Liability

• Strict Liability

• Intent

• Representation Theories

• Implied Warranties of Merchantability and Fitness for a Particular Purpose

• Negligence

Strict Products Liability

• D is merchant - commercial supplier, including entire distribution chain

• product is defective

• product was not substantially altered

• P was making foreseeable use of the product at the time of the injury

Manufacturing Defect

• product emerges from manufacturing different from and more dangerous than products that were made properly

• P must show product failed to perform as safely as an ordinary consumer would expect

Design Defects

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

• P must show D could have made product safer, without serious impact on the product’s utility or price

Information Defects

manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users

Products Liability - Negligence

• res ipsa: defect is something that would not usually occur without manufacturer’s negligence

• intermediaries

  • can usually satisfy duty through cursory inspection

  • failure to discover defect does not supersede original manufacturer’s negligence unless intermediary’s conduct exceeds ordinary foreseeable negligence

Employer-Employee - Respondeat Superior

• employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within scope of employment of RS

• detour: minor deviation from employer’s business for their own purposes

• frolic: substantial deviation in time or geographic area

Employees’ Tortious Conduct

intentional tortious conduct by employees usually not within scope of employment unless

• employee is furthering business of employer

• force is authorized in employment

• friction is generated by employment

Employer’s Own Negligence

employer liable for own negligence in negligently selecting or supervising their own employees

Independent Contractors

• in general, hiring party will not be vicariously liable for tortious act of independent contractor when hiring party does not control manner and method in which the independent contractor performs the job

• public policy exception: duty is nondelegable i.e. duty of business to keep premises safe for customers

• employer negligence: liable for negligence in selecting or supervising the independent contractor

Parent-Child Vicarious LIability

• parent not vicariously liable for tortious conduct of their child at common law

• parent may be liable for own negligence in allowing child to do something—if parent is apprised of child’s conduct on past occasions showing tendency to injure another’s person or property, they may be liable for not using due care in exercising control to mitigate such conduct

Defamation

• defamatory statement that specifically identifies P - one tending to adversely affect one’s rep; actionable only if based on specific facts

• published to 3rd party

• falsity of defamatory language

• fault on part of D

• damage to P’s reputation

Defamation Fault - Private Persons

• matter of public concern: negligence regarding falsity

• not matter of public concern: constitutional restrictions do not apply

Defamation - Proof of Damages

Libel

• P typically does not need to prove special damages to recover and general damages are presumed

Slander

• P must prove special damages unless defamation falls within slander per se category

  • adversely reflect on P’s business or profession

  • statement that P has committed serious crime

  • impute that P engaged in serious sexual misconduct

  • P has loathsome disease

Defamation - Absolute Privilege

• communications btw spouses

• remarks made during judicial proceedings

• remarks made by legislators during proceedings

• remarks by executive officials in compelled broadcasts

Defamation - Qualified Privilege

• can be lost through abuse; may be lost if statement is not within scope of privilege or it is shown speaker acted with actual malice

• arises only when there is a public interest in encouraging candor; D has burden of proving privilege exists

• EX: references and recommendations; reports of public hearings or meetings; statements made to those who are to take official action; statements made to defend one’s own actions, property, or reputation