TORT--Issued Based on FYLS Apperances

Damages / Harm [For Negligence] [Did X Suffer Harm]

Special and general damages for negligence are available if the plaintiff has suffered harm. 

1. Special damages: Pecuniary in nature and related to specific costs incurred due to the particular circumstances involved in the tort

2. General damages:  non-pecuniary in nature and are presumed by the law to be incurred based upon the commission of the tort. [Examples are pain, suffering and inconvenience.]

Negligence [Negligence requires proof of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and that the breach was the actual and proximate cause of damages suffered by the plaintiff.]

Requires proof of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and that the breach was the actual and proximate cause of damages suffered by the plaintiff.

Comparative Negligence [Is Y's claim barred in a comparative negligence jurisdiction?]

Modernly, the doctrine of comparative negligence has replaced contributory negligence, so that liability is apportioned according to the relative degree of fault of the plaintiff and defendant. 

1. [Therefore, in a comparative negligence jurisdiction, the court will apportion the fault and damages between X and Y.]

Contributory Negligence [Is Y's claim barred in a contributory negligence jurisdiction?]

Under the minority doctrine of contributory negligence, if the plaintiff’s failure to exercise reasonable care for his own safety is a contributing factor to his own injury, he is barred from recovery for the defendant’s negligent action.

Duty [Does X owe a general duty to Y?]

The general rule of duty holds that everyone owes a duty to exercise due care so as not to subject others to unreasonable risks of harm

Breach [ Did X breach his duty of care to Y]

A breach is the failure to perform one's duty. 

Actual Cause [Was X's breach the actual cause of harm?] 

The cause which starts, ignites or makes possible the result which follows, and which satisfies the "But For" or Substantial Factor test.

Proximate Cause [Was X's breach the proximate cause of Y's harm?]

An actual cause of harm is the proximate cause of that harm if the act occurs in a natural and continuous sequence of events, unbroken by unforeseeable, independent, intervening acts and results in the harm

Transferred Intent Doctrine [Does the transferred intent doctrine apply?] 

1. When a defendant, while in the process of committing a tort against one person, unintentionally harms a third person or commits a different tort 

2. In such a case, the defendant’s wrongful intent is transferred to include the unintended victim or tortious act

Negligent Infliction of Emotional Distress [Can X be liable for negligent infliction of emotional distress]

May be used to establish a duty to a plaintiff who was not physically harmed by defendant’s negligence, but suffered emotional distress. 

Battery [ Should X bring an action against Y for Battery?

The 1.intentional2. harmful or offensive touching 3.of another.

Assault [Should X bring an action against Y for Assault?]

The intentional placing another in reasonable apprehension of an imminent harmful or offense touching

Consent [Can X use the defense of consent?] 

A defendant who acted in accordance with the plaintiff’s informed and voluntary assent, whether expressed or implied, is not liable for the resulting harm so long as the plaintiff had legal capacity.

Assumption of Risk [Will the defense of assumption of the risk apply?]

a plaintiff assumes the risk of harm if he voluntarily subjects himself to a known and appreciated risk. Such consent may be expressly created by agreement between the parties, or it may be implied by the plaintiff's conduct.

Intentional Infliction of Emotional Distress  [Should X bring an action against Y for Intentional Infliction of Emotional Distress?]

the intentional causing of severe emotional or mental distress in another through extreme and outrageous conduct

Trespass to Land [ Should X bring an action against Y for Trespass to Land?]

Intentional entry upon land in possession of another without consent or privilege.

Negligence Per Se

The elements of duty and breach are proved when a defendant 1.violates 2. a safety statute which was 3.intended to protect the class of people to which the plaintiff belongs 4.from the kind of injury the defendant caused

Res Ipsa Loquitur

1. The defendant was in complete control of the instrument that caused the harm

2. The plaintiff is not guilty of contributory negligence

3. The defiant is in a better position to explain what happened and

4. Injuries of this type do not normally occur absent such negligence

Duty Owed to Licensee [Warn or Repair]

1. A landowner owes a duty of ordinary care to licensees, which includes either 

   1. Warning licensees of known dangerous conditions, unless they are obvious or already known to the licensee or

   2. Repairing dangerous conditions to make the property safe

Duty Owed to Invitee ["Inspect and Correct"]

A land occupier owes a duty of ordinary care to invitees, which include reasonably inspecting the land for dangerous conditions and repairing those dangerous conditions which a reasonable inspection would reveal 

Duty Owed to a Constant Trespasser Upon a Limited Area ["Warn of artificial conditions unless obvious" ]

The land occupier owes a duty to constant trespasser upon a limited area of warning him of known dangerous artificial conditions unless such conditions are obvious

Strict Liability - Abnormally Dangerous Activity [Is X liable under strict liability?] 

1. Strict liability is typically imposed for the carrying on of abnormally dangerous activities

2. It is imposed against a defendant even though the defendant has done nothing intentionally wrong and has not acted unreasonably under the circumstances

3. There are two elements to determine if an activity is abnormally dangerous:

   1. The activity creates a foreseeable risk of serious harm, even when reasonable care

   is exercised by all actors;

   2. The activity is not a matter of common usage in the community.

Last Clear Chance [Does the last clear chance apply?] 

Limits the contributory negligence defense so that even if the plaintiff was contributory negligence, he will be permitted to recover if the defendant had a superior opportunity to avoid the accident and failed to do so

Trespass to Chattel [ Should X bring an action against Y for Trespass to Chattel?] 

Intentional interference with the person's use or possession of a chattel.

Joint and Several Liability [Were X and Y Joint Tortfeasor/Concurent tortfeasors?] 

1. Each tortfeasor is responsible for the full amount of the plaintiff's injury and each may have to pay the full judgment. 

   1.  imposed upon joint and concurrent [but not successive] tortfeasors.

Contribution

1. Relates to a claim by one concurrent tortfeasor against another concurrent tortfeasor, requesting reimbursement of the other's proportional share of a court judgment.

   1. It is typically used after joint and several liability has been found and one defendant has had to pay the plaintiff more than his pro rata share of the damages.

Vicarious Liability [Will X be held vicariously liable for Y's actions?] 

A defendant who is not charged with personal fault or wrongdoing may be held liable for the tortfeasor's act because of the defendant's relationship to the tortfeasor. [EX: Employee-Worker]

Respondeat Superior

Applies in employment situations to hold the employer vicariously liable for his employee's torts which are committed within the scope of employment.

Conversion [Should X bring an action against Y for conversion?]

1. An intentional assumption of dominion and control over the chattel of another, resulting in a substantial interference with the plaintiff's possessory rights.

   1. Results in a forced sale

Product Liability [Should X sue Y under the theory of product liability?]

A manufacturer or seller who releases an unreasonably dangerous product into the stream of commerce is liable for harm caused by the product.

Product Liability - Design Defect [Was X defective in design?]

1. The entire product line is unreasonably dangerous due to design choices all units share the same dangerous characteristics

   1. First IRAC Product Liability 

      1. Risk-Utility Test: A product is defective if its dangers outweigh its usefulness, and a safer, practical design was available.

      2. Consumer Expectation Test: is more dangerous than an ordinary person expects during normal use.

Husband-Wife immunity 

1. At common law, husband-wife immunity prevented one spouse from maintaining an action against the other

2. Modernly, husband-wife immunity does not exist in most jurisdictions

Parent-Child Immunity

1. Traditionally parent-child immunity has been applied so that a parent and minor child are immune from suits against each other in tort actions

2. However, suits involving interference with property interest have been freely allowed

Charitable Immunity

1. Charitable immunity traditionally prevented non-paying recipients from suing a charity

2. However, paying recipients could sue the charity because, as to them, it was not a charity, it was a business

3. Modernly, the trend is to abolish the immunity and to hold non-profit organizations liable to the same extent as any other wrongdoing defendant

Government Immunity

1. Government Immunity has been applied to prevent suits against a governmental entity unless that entity has consented to the suit.

2. A substantial number of jurisdictions have totally abolished the immunity of municipal governments, and in several states, the immunity of the state government has also been terminated

Absolute Privileges

Under an absolute privilege the defendant has complete immunity from liability for defamation, even if he defames maliciously, knowing the statements to be untrue 

1. Absolute privileges exist for states from

2. Judicial proceedings

3. Legislative proceedings

4. Executive government functions 

5. Official statements of government officials

6. Between husband and wife

7. Broadcast [equal time doctrine]

Qualified Privilege

Under a qualified privilege, the defendant has immunity from liability for defamation if he is acting for the purpose of

1. Reporting public proceedings

2. Fair comment privilege

3. Interest of publisher

4. Interest of others [warning an employer]

5. Common interest [business dealings with common pecuniary interest]

6. Communication to one who may act for public interest [crime prevention]

Defamation [Can a claim be brought against X for defamation?] 

A false[1] and defamatory[2] statement, published intentionally or negligently[3] to a third person[4], that the third person understood applied to the plaintiff[5], and which caused damage[6] to the plaintiff.

1. False statement=Defamation

Independent Contractor Liability

One who is hired to undertake a specific project but who is left free to do the assigned work and to choose the method for accomplishing it 

1. Because there is no employer/employee relationship, the one who hires the independent contractor is not liable for the acts of the independent contractor

Necessity [Can X raise the defense of Necessity?]

A person may interfere with the real or personal property of another where it is reasonably and apparently necessary to avoid threatened injury from natural or other forces, and where the threatened injury is substantially more serious than the invasion that is undertaken to avoid it.

1. For public necessity, the defense is absolute.

2. For private necessity, i.e. where the defense is to protect individual persons or property, the actor must pay for the damage they cause.

Product Liability - Failure to Warn  [Did X fail to warn?] 

Dangers are not apparent to customer and there is no warning about the dangers 

1. Known or knowable risks

2. Not obvious to users

3. Causation required

Products Liability - Manufacturing Defect [Was X detective in manufacturing?] 

The product comes off of the assembly line more dangerous than other products and is dangerous beyond the expectations of the ordinary consumer.

Self Defense [Can X raised the defense of self defense?]

A person who reasonably believes himself to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary to protect himself.

Defense of Others [Can X raise the defense of others?]

1. A person who reasonably believes another to be threatened with immediate bodily harm may use whatever degree of force is apparently necessary to protect the personal safety of the other person 

2. Majority Rule: “Step-In-Shoes Rule”: A person is not allowed to use the defense of others unless the person being defended was not the aggressor and had the right to use self-defense 

3. Minority Rule:”Reasonable Apperanaces”: A person defending another in good faith and in ignorance of the fact that the person being defender is the aggressor and not entitled to use self-defense is justified when acting upon reasonable appearances

False Imprisonment [Should X bring an action against Y for False Imprisonment?]

Intentional confinement of the plaintiff by the defendant

Defense of Property 

A person may use reasonable force that is not likely to cause death or serious bodily harm to protect his or her possession of real or personal property against an apparent trespasser

Recovery of Property 

A person may commit an act which would otherwise be tortious if he or she is acting in fresh pursuit and with a reasonable degree of force to regain possession of his or her property

Warranty (Torts / Products)

1. Liability can be imposed against the manufacturer or seller of a product based upon the buyer's reliance upon express or implied warranties that the goods are of merchantable quality and are fit for their intended purpose 

   1. Elements of Breach of Warranty

      1. Manufacturer makes express or implied warranty 

   2. Express Warranty: Words [Written or Spoken] 

   3. Implied Warranty 

      1. Description

      2. Photo

      3. Nonverbal assurance

      4. Merchantability 

2. Goods are not merchantable

   1. They do not meet ordinary commercial standards OR Goods are not fit for intended purpose

      1. Watch for consumer's stated purpose and for implied warranties

Privacy - Intrusion [Can a claim be brought against X for Intrusion?] 

Intentional and unreasonable interference with the plaintiff's private affairs or an invasion of a location in which the plaintiff has a reasonable expectation of privacy

Strict Liability - Animals

1. Strict liability is typically imposed for the keeping of dangerous animals

2. Under the doctrine of strict liability, defendants are liable despite how cautious they were in their actions when they undertake inherently dangerous actions. Keeping certain animals is one such activity that can trigger strict liability. More specifically, people who own, keep, or control wild animals are responsible for the harm that these animals cause to others, no matter how carefully they guard or restrain their animals. In order to prevail in a strict liability claim based on a wild animal, a plaintiff must prove that: defendant kept a wild animal, that plaintiff was harmed and that said animal was the actual and proximate cause of that harm.

Privacy - False Light [Can a claim be brought against X for False light?] 

1. Publication to the / of offensive, untruthful or misleading information about the plaintiff 

   1. False implication

Attractive Nuisance Doctrine

The land occupier owes a duty of reasonable care to eliminate a danger or to otherwise protect children when the following elements are present 

1. Foreseeability of trespass,

2. Foreseeability of serious harm,

3. The child is unaware of the danger, and 

4. The benefit to the owner of maintaining the condition in its dangerous form is slight when weighed against the risk to children

Several Liability

Each tortfeasor is liable for the amount of damages they are at fault for

Joint or Several Liability

100% liable if they were more than 50% liable, and if below 50% it is what they're liable for if it was less than 50%