Torts Outline – Studicata

Tort Law

Establishes rules for civil responsibility and damages for invasions of protected personal, property, and economic interests.

Intentional Tort

A tort that requires a voluntary act, the specific intent to cause harm, and causation linking the act to the injury.

Voluntary Act

An external manifestation of the actor's will resulting in deliberate physical movement.

Transferred Intent

A legal doctrine allowing intent to transfer between victims or torts.

Battery

An intentional act that directly or indirectly causes a harmful or offensive contact to another person without consent or privilege.

Assault

An intentional act which causes apprehension of a battery (an imminent harmful or offensive contact without consent or privilege).

False Imprisonment

An intentional act which causes confinement within a bounded area for an appreciable time without consent or privilege.

IIED (Intentional Infliction of Emotional Distress)

An intentional act that is extreme or outrageous and causes severe emotional distress without consent or privilege.

Trespass to Land

An intentional act that causes entry onto the land of another without consent or privilege.

Trespass to Chattel

An intentional act that interferes with or harms the chattel of another without consent or privilege.

Conversion

An intentional act that exercises dominion or control over the chattel of another without consent or privilege.

Consent

A defense to tort liability that negates the tortious nature of an act that would otherwise be actionable.

Self-Defense/Defense of Others

The privilege to use reasonable force as believed necessary to defend against the apparent threat of imminent harmful or offensive contact. No deadly force.

Defense of Real Property

The privilege to use reasonable force to prevent or terminate an invasion of one's real property, including the right to request the invader to leave. No deadly force (life (even one of a thief/trespasser) > property).

Defense & Recovery of Personal Property

One who is dispossessed of chattel is privileged to use reasonable force to recover the chattel immediately after it is taken.

Necessity

Defendant acted to prevent threatened injury from some force of nature or other independent cause that was not connected to an individual. Defendant is privileged to destroy, damage, or use real/personal property if they reasonably believe it is necessary to avert imminent public disaster.

Negligence

1) A duty of care owed by the defendant to the plaintiff; 2) Breach of the applicable standard of care; 3) Factual Causation; 4) Proximate Causation; and 5) Actual Legally Cognizable Harm.

Duty of Care

Plaintiff’s burden to produce. The duty not to engage in conduct that creates an unreasonable risk of foreseeable harm to others under the circumstances.

Standard of Care

The amount of care a reasonably prudent person would exercise under the same circumstances faced by the defendant.

Four Ways to Determine Standard of Care

1) Determining the conduct of the reasonable person under the facts of the case; 2) Applying a rule of law previously formulated by a binding court; 3) Applying a non-tort specific legislative enactment or administrative regulation; and 4) Applying a legislative enactment or administrative regulation that expressly defines the standard of care in a negligence action.

Social Utility

Societal benefit from potentially dangerous conduct. Does the social utility outweigh potential danger?

Duty of Care to Trespassers

Traditionally, landowners don’t owe a D.o.C. to either trespassers or licensees. Landowners only owe a duty to avoid intentional, wanton, or willful injury.

BUT

Once a landowner has discovered/knows of danger to trespasser, then he has a duty to warn of that known danger where the landowner knows/has reason to believe trespasser is about to encounter said danger.

Attractive Nuisance

Landowners can be liable to child trespassers when the landowner creates an unreasonable risk of death or serious bodily harm to trespassing children when: 1) Trespassing children are foreseeable; 2) Landowner knew/had reason to know of danger; 3) Landowner had reason to believe child, because of their age, wouldn’t be able to protect self from danger; 4) The burden of “making it safe” is not undue: and 5) There is no duty to inspect.

Learned Hand Formula

Compares Burden of Precaution with Probability multiplied by the Magnitude of Loss.

1. Foreseeable Likelihood of Harm

2. Foreseeable Severity of Harm

3. Burden of Precautions that would Reduce or Eliminate the Risk

Reasonably Prudent Person

A R.P.P. uses the skills, knowledge, and strengths they possess (without superior knowledge), has the memory in recognizing and remembering risk, and acts to minimize harm in a reasonable way.

The Reasonable Child

Held to the standard of what a child of like age, intelligence, and experience would do/know/understand under the circumstances.

Reasonable Disabled Person

A reasonable person under the circumstances with the disability taken into account by the actor in order to act with reasonable safety or with “due care.”

Rule of 7s

1. Under 7, presumed incapable of negligence

2. 7-14, presumed incapable of negligence, but that is a rebuttable presumption

3. 14+, presumed entirely capable, but can be rebutted by evidence of incapacity

Negligence Per Se

A legal doctrine where violating a statute establishes breach of duty. Court imports the standard of care from a safety statute. Keep in mind:

1. Does the enactment prescribe sufficiently specific content the court will adapt as civil standard?

2. Is the plaintiff within the class it was designed to protect?

3. Is the harm of the kind it was designed to protect from?

4. Did the defendant violate that statute without a legally recognized cause?

Res Ipsa Loquitur

“The thing speaks for itself.” A doctrine allowing an inference of negligence based on circumstantial evidence without direct evidence of breach. The required elements are:

1. The accident is the type that does not normally occur in absence of negligence.

2. Instrumentality that caused the accident must have been in the exclusive control or management of the defendant.

3. Injury must not have been due to the plaintiff’s actions.

Inference

Conclusion that may be reached by considering other facts.

Presumption

Requires concluding certain facts unless the adversely affected party overcomes them with other evidence.

Factual Causation

If the harm would not have occurred without the defendant’s negligence, defendant’s conduct is the cause in fact of plaintiff’s harm.

1. “But For” Test (Using a Contrary to Fact Hypothetical Statement (If-Then))

2. Substantial Factor

   1. Defendant’s conduct has such an effect in producing harm that a reasonable person would regard it as the cause in fact.

3. SUMMERS v. TICE

   1. When two parties are negligent, and it is unclear which party caused the injury, both may be held liable to ensure the injured party receives redress.

   2. Shifts burden of proof to defendants to prove it wasn’t them.

4. Alternative Liability

   1. Market Share

      1. Liability may correspond to the defendant's relevant market share rather than proof that its particular unit injured the plaintiff.

   2. Concert of Action

Proximate Cause

Who should bear the cost of negligent conduct? Policy driven. Three Prevailing Theories:

1. Polemis - Since some harm could be foreseen from defendant’s negligence, defendant pays for all of the harm.

2. Palsgraf, Cardozo - The orbit of danger establishes the orbit of duty. The relevant question is whether plaintiff was within the reasonably foreseeable range of danger, not whether plaintiff's precise injury could be predicted.

3. Palsgraf, Andrews - Due care is a duty imposed on all to protect society from unnecessary danger, not to protect A, B, or C alone.

Evans’s Good Happy Guide to Proximate Cause

1. Unforeseen plaintiff’s rarely recover (Cardozo)

2. Difficult to recover from unforeseen harm (Wagon Mound 1)

3. Unforeseeable mechanisms rarely preclude recovery

4. Unforeseeable extent rarely precludes recovery

Intervening Cause

Occurs after defendant’s conduct and contributes to the injury; the causal connection is not severed; liability turns upon whether the intervening act is a normal/foreseeable consequence of situation created by defendant’s negligence.

Superseding Cause

Intervening cause that the law treats as cutting off the earlier defendant’s liability; extraordinary under the circumstances; not foreseeable in the normal course of events; independent of/far removed from defendant’s conduct. Intentional Acts break the causal chain (Intentional Torts, Criminal Acts, Suicide).

Comparative Fault

A Defense to Negligence

1. Pure = Plaintiff’s damages are reduced in proportion to the percentage negligence attributed; if plaintiff is found to be 90% responsible, plaintiff receives 10% of damages.

2. Modified

   1. Modified 1 = Plaintiff recovers like Pure only when plaintiff’s fault does not exceed 50%.

   2. Modified 2 = Plaintiff recovers like Pure only when plaintiff’s fault is less than defendant’s negligence (comparative)

Assumption of Risk

A Defense to Negligence

• Arises regardless of due care used; it is based fundamentally on consent

1. Express = explicit agreement to accept risk of harm (contracts, waivers, etc.).

2. Implied = 3 Required Elements

   1. Must be a risk of harm to plaintiff caused by defendant’s conduct or by condition of defendant’s land/chattel.

   2. Plaintiff must have actual knowledge of that particular risk and appreciate its magnitude.

   3. Plaintiff must voluntarily encounter the risk.

Strict Liability

A legal doctrine holding a party responsible for damages without the plaintiff needing to prove negligence or fault.