torts !

elements of negligence

duty
breach
causation
damages

how are duties triggered?

duties are triggered by acts and relationships

who decides the duty element

Judges

joint tortfeasors

two+ people liable to the same P for the same indivisible injury

3 ways to be a joint tortfeasor

1) acting in concert

2) indivisible injury

3) common duty to the P

joint & several liability

D1 & D2 can both be held wholly liable for entire damages

several liability

when there are multiple tortfeasors that can be held liable, damages are based on the jury’s apportionment of their negligence

• no contribution allowed

contribution

D can bring a claim against another D in a joint & several liability jurisdiction for their portion of the fault

permissive joinder

P gets to choose what parties it wants to sue

concurrent tortfeasors

two+ torts happened at the same time, but don’t necessarily have to be the same indivisible injury

negligent infliction of emotional damage

generally you cannot recover in negligence for pure emotional distress unless you have a direct and physical manifestation of it

3 NIED tests

1) zone-of-danger

2) Dillon factors

3) Thing v. LaChusa

Zone-of-danger rule

people in the zone of danger are owed a duty by the negligent actor; can recover the physical manifestations of the fear from almost being hurt (objective)

Dillon factors

1) P was located near the scene of the accident

2) Shock was a direct result of the accident

3) P and victim are closely related

Thing v. LaChusa rule

1) P closely related to victim

2) P present at the scene of the injury producing event at the time it occurs and is aware it is causing injury to the victim

3) P suffers severe emotional distress (objective)

Eggshell skull doctrine

when we have a particularly vulnerable P and the type of harms are outside of the usual foreseeability, we still allow the P to recover the damages

exceptions to duty

• failure to act

• emotional/economic relationship

• prenatal harms

spousal duty to warn against abuse

when a spouse has actual knowledge or special reason to know of the likelihood of their spouse engaging in sexually abusive behavior against a particular person or persons, a spouse has a duty of care to take reasonable steps to prevent or warn of the harm

therapist duty to warn

Once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others (a particularized person), he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger

Failure to Act exceptions

1) special relationships

• continuing risk

• special relationship between P and D

  • creates affirmative duty to warn/do something

• special relationship between D and 3rd party wrongdoer

• instrumentality in the control of the D

2) voluntary undertaking

3) pure economic loss

Rescue Doctrine

Duty: D owes a duty to Rescuer P if:

1) D caused initial negligence to the person being rescued

2) Perception or appearance of a reason to do the rescuing in the first place

3) Rescuer acts reasonably when they rescue

Proximate cause: must also evaluate if the injury from events of rescue were proximately caused by D

licensee definition

social guest (license to party) who has permission to be on the premises for their own benefit

licensee duty rule

Owner has a (affirmative) duty to warn licensee of any hidden dangers which are unknown to his guest, if he has knowledge, and to refrain from injuring his guest willfully or wantonly

invitee definition

business guests there to further the economic interests of the business (expressly or impliedly)

invitee duty rule

Owner has a duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee

• owner is subject to liability within the scope of his invitation

  • if it’s open to the public, everyone is an invitee

trespasser duty rule

unknown trespasser: not liable until you see them or are made aware of them

• exception: trapped/injured trespasser

discovered/known trespasser: jurisdictional split

1) no willful or wanton conduct OR
2) reasonable care to avert injury by any capacity under your control

child trespassers (attractive nuisance doctrine)

1) Is it visible or attractive?

2) Is it uniquely attractive because they’re children?

3) Are their children likely to be on your property?

4) Cost-benefit analysis

5) Utility of maintaining the condition (high-utility farm equipment vs low-utility hot tub)

tenant duty rule

generally, tenant as possessor has the burden of maintaining the premises in good repair

• 6 exceptions that must have existed at the time of the lease

landlord duty rule

generally, a landlord owes his tenant or anyone on the property with the tenant’s consent a duty to exercise reasonable care in the maintenance of the premises

• jurisdictional split: reasonable care means a little different in every jurisdiction so as to include all 6 of the exceptions we learned

elements of breach

1) What is the standard of care?

2) Was it breached?

general standard of care

How a reasonably prudent person would act under the same or similar circumstances

physical disability standard of care

How a reasonably prudent person with [same disability] would act under the same or similar circumstance

mental disability standard of care

How a reasonably prudent person would act under the same or similar circumstances.

Exception: Sudden mental incapacity should be treated equally to a sudden physical incapacity equivalent in its effect, such as a sudden heart attack or stroke.

***teeny weeny extreme minority exception

child standard of care

How a reasonably prudent child of the same age, intelligence, maturity, training, and experience would act under the same or similar circumstances

Exception: When the child is engaging in inherently dangerous activities, an adult standard of care should apply.

• Inherently dangerous activities = arguments not answers

emergency circumstances standard of care

How a reasonably prudent person would act under the same or similar sudden, unforeseen, and unexpected circumstances not of their own making

specialized knowledge/skill/ability standard of care

How a reasonably prudent person with the same knowledge, ability, and skill would act under the circumstances.

• can be established through lay testimony

professional standard of care

How a reasonably prudent person of that same profession would act under the circumstances

• must be established with expert testimony, unless the negligence is grossly apparent

medical malpractice

A physician must conform to the standard of care that an ordinary member of their profession in either the same community or nationally would exercise

• locality rule jurisdictional split

  • national standard

  • locality standard

  • similar locality standard

legal malpractice

1) Possession of knowledge of skill

2) Exercise of best judgement

3) Use of due care

4) Causation (but-for the breach they would have won their case)

informed consent

1) Defendant physician failed to inform the patient of a material risk before securing consent for the proposed treatment

2) If they had been informed of the risks, they would not have consented to the treatment

3) The adverse consequences that were not made known did in fact occur and they were injured as a result of submitting to the treatment

exceptions:

• P knows or ought to have known the risks

• full disclosure would be detrimental to P’s total care and best interests

• emergency situation or P was in no situation to decide for themselves

material jurisdictional split:

• subjective patient

• reasonable patient

• reasonable physician

6 ways to prove standard of care

1) lay testimony

2) custom & usage

3) expert testimony

4) negligence per se

5) Res Ipsa Loquitor

6) circumstantial evidence

lay testimony

If there is knowledge that is known or ought to be known by everyone, lay people can establish the standard of care

custom & usage

When proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care.

When proof of a customary practice is coupled with a showing that it was ignored and that this departure was a proximate cause of the accident, it may serve to establish liability

expert testimony

When the case facts involve a highly technical or specialized field of knowledge, such as medicine, law, engineering, etc. an expert must establish standard of care

negligence per se

Step one: admit statute

1) member of the class

2) harm of the kind

3) otherwise appropriate

Step two: effect of the statute (jurisdictional split)

• negligence per se (slam dunk)

• rebuttable presumption

• permissible inference (jury jump ball)

res ipsa loquitor

1) the accident would not ordinarily occur without negligence

2) the instrument causing the harm was under the near exclusive control of the D

circumstantial evidence

you can use circumstantial evidence when there is not actual evidence

• can use it to know actual or constructive notice/knowledge

failure to correct a dangerous condition

1) D had actual or constructive knowledge of a condition on the premises

• May be shown using actual or circumstantial evidence showing constructive notice or failure to inspect within a reasonable time

2) Condition posed an unreasonable risk of harm

3) D did not exercise reasonable care to reduce or eliminate the risk

4) D’s failure to use such care proximately caused P’s injuries cons

constructive notice

whether the condition has existed long enough for a reasonably prudent person to have discovered it and remedied it

elements of causation

cause-in-fact

proximate cause

but-for causation

counterfactual: but-for the breach, the harm wouldn’t have occurred

a substantial factor

negligence is a cause in fact of the harm to another if it was a substantial factor in bringing about the harm

direct test (scope of liability)

was the damage that occurred a result of a chain of unbroken natural events?

• consider superseding/intervening cause

superseding cause

something that interrupts between the direct link of the breach and damages and DOES sever the chain of liability

• ex: negligence, intentional torts, act of God, criminal act, suicide

intervening cause

something that interrupts between the direct link of the breach and damages and DOES NOT sever the chain of liability

• risk of this injury was foreseeable

foreseeability test (scope of liability)

at the moment of D’s specific breach, was it foreseeable that the [injury + P] could happen?

collateral source rule

evidentiary prohibition on any evidence of gratuitous 3rd-party contributions

• Exceptions for P being deceitful about the collateral sources covering the costs or introducing the collateral sources affirmatively

minimum/maximum recovery rule

trial judge determines if the verdict of the jury exceeds the maximum/minimum recovery possible for this case and can exercise discretion by limiting or requiring a larger recovery (remittitur/addittur)

economic damages

we can prove them/predict them, there are receipts

• ex: medical expenses

non-economic damages

arguments are required to make reasonable estimates

• ex: pain and suffering

punitive damages

damages above and beyond compensatory damages that serve as a punishment or deterrence

• not every state allows them

• single digit multiplier for the ratio between compensatory:punitive damages is a good baseline to use

7 negligence damage categories:

1) past physical/mental pain and suffering

2) future physical/mental pain and suffering

3) past medical expenses

4) future medical expenses

5) loss of earning capacity

6) permanent disability & disfigurement

7) property damages

property damage calculations

completely destroyed/converted: entire value at the time/place of the tort

damaged, but not completely: difference in value before & after the tort

deprivation of use: value of the use of which P has been deprived

contributory negligence

in some jurisdictions, if D can prove P is even 1% liable, P is prevented from recovery

comparative negligence

D can reduce recovery by how much they can prove P was liable

pure: reduce P’s recovery by whatever percentage of fault P has

modified: if P is more at fault that D, then P can bring a claim

• not as great as: 50/50 = P can still bring a claim

  • not greater than: 50/50 = P cannot bring a claim

assumption of risk

1) unambiguous waiver of risk: this specific risk/injury

2) public policy exceptions

• party protected by the waiver engaged intentionally in harm or acts of reckless/wanton/gross negligence

• grossly unequal bargaining power: contract of adhesion for an essential service

• transaction involving the public interest

statute of limitations

P must initiate a lawsuit in the time specified by the state statute

• med mal exception: statute can begin to run starting at time of discovery

vicarious liability (respondeat superior)

generally employees are liable for their employees’ conduct when acting within the scope of their employment

• not liable for the conduct of independent contractors

going-and-coming rule

an employee is outside of the scope of his employment while engaged in his ordinary commute to and from his place of work

• Exception: when an employee endangers others with a risk arising from or related to work (requires some sort of foreseeability)

slight deviation rule (scope of employment)

a deviation that is sufficiently related to the employment will fail within its scope (a detour); something outside of the scope of employment will sever liability (frolic)

Detour elements:

• Employee’s intent

• Nature, time, and place of the deviation

• Time consumed in the deviation

• Work for which the employee was hired

• Incidental acts reasonably expected by the employer

• Freedom allowed the employee in performing his job responsibilities

independent contractor

one who is engaged to perform a certain service for another according to his own methods and manner, free from control and direction of his employer in all matters connected with the performance of the service except as the result thereof

wrongful death

1) tort that causes death

2) qualifying beneficiary/personal representative

• comes from the statute

3) damages to the qualified beneficiaries

• loss of economic support

• loss of society, comfort, and companionship

• funeral expenses

survival

tort claims survive after death of P or D

1) tort

• damages to the injured party:

  • past medical expenses

  • past pain & suffering (if conscious before death from injury)

  • past economic loss

  • past property damages

strict liability (abnormally dangerous activity)

One who carries on an abnormally dangerous ACTIVITY is subject to liability for harm to person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm

limitations:

• Liability should be confined to the consequences which come from the extraordinary risk that comes from the ultrahazardous activity

• No liability for an act of God

• No liability if the plaintiff who unnecessarily and voluntarily puts himself in a way to be hurt knowing the probable consequences of his act

strict liability (animals)

D is strictly liable for keeping, possessing, or harboring a roaming/wild/non-native animal or a domestic animal with vicious propensities

strict products liability

One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if:

1) The seller is engaged in the business of selling such a product

2) It is expected to and does reach the user or consumer without substantial change in the condition in which it is sold

even if:

1) the seller has exercised all possible care in the preparation and sale of the product

2) the user/consumer has not bought the product or entered into any contractual relation with the seller

3rd restatement addition to strict products liability

3 kinds of defect:

• manufacturing

• design

  • failure to warn

manufacturing defect

When the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product

• comparator: same product on the line the manufacturer made

design defect

When the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe

reasonable alternative design (jurisdictional split):

• consumer expectations: what would a consumer using a product like this expect

• risk utility: what is this thing’s function, how great is the injury it poses, would we undermine the utility if we eliminated the risk?

failure to warn

When the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the products not reasonably safe

• once you know or have reason to know, you have an affirmative duty to warn/inform

intent

person acts with the intent of producing the outcome OR
person has substantial certainty that the outcome will result

battery

intentional

touching

of another

• transferrable intent

in a harmful or offensive manner

• to a reasonable person or special circumstances

without consent/privilege

assault

D’s intent

• transferable intent

to cause P to anticipate

• a reasonable person would anticipate AND

• this P does anticipate

an imminent contact

• D has to have the capacity to do the contact

contact is harmful or offensive

• to a reasonable person or special circumstances

false imprisonment

intentional conduct causing

• transferable intent

• can be using words or actions

unlawful physical confinement of another

• moral or economic suasion alone is not sufficient, must be physical in nature

against their will

• awareness of confinement (jurisdictional split: or actual harm)

with no reasonable means of escape known to P

• P must know or be able to know of escape

without legal justification (consent/privilege)

intentional infliction of emotional damage

extreme or outrageous conduct

• to a reasonable person

with intent to cause

• NO transferable intent

severe emotional distress

• to a reasonable person or special circumstances

causal connection (conduct —> severe distress)

with no privilege to do so

trespass to land

conduct

intentionally causing

• transferable intent

unauthorized entry, continued presence, or failure to remove

• a person, thing, or substance

• no consent/privilege

• extends scope of invitation

onto land

• or airspace or underground space

in the possession of another

• mistake isn’t a defense

• possession, not ownership

trespass to chattels

intentional

• transferable intent

interference or intermeddling

• dispossessed OR

• impaired in quality or condition OR

• bodily harm caused OR

• taken for a substantial period of time

with the chattel

in the possession of another

• possession, not ownership

damages = diminution in value

conversion

intentional exercise of dominion or control over a chattel

• good faith/mistake aren’t defenses

  • jurisdictional split that allows for innocent converters to return chattel

• NO transferable intent

in the possession of another

that so seriously interferes with the right of another to control it

that the actor is justified in having to pay the full value

• damages = full market value

intentional torts damages

battery: dignitary or actual harm

assault: dignitary harm only

false imprisonment: dignitary or actual harm

IIED: actual harm only

trespass to land: dignitary or actual harm

trespass to chattels: actual harm only

conversion: actual harm only

**punitive damages available for all

intentional torts transferable intent

battery: yes

assault: yes

false imprisonment: yes

IIED: NO

trespass to land: yes

trespass to chattels: yes

conversion: NO

intentional tort defenses

• consent

• self-defense

• defense of property

consent

Under the circumstances, a reasonable person in D’s position would have reasonably believed that P consented or D is justified under prevailing social norms to engage in the conduct

• P had capacity to consent: capable of appreciating the nature, extent, and potential consequences of the conduct consent to

• P was free of duress or substantial material mistake

• P was subjectively willing for D’s conduct to occur

• Was the conduct within the scope of consent?

self-defense

anyone is privilege to use reasonable force

• necessary and proportional

to defend himself

against a threatened battery on the part of another

when at home

defense of property

No privilege to use force intended to or likely to cause death or serious harm against another whom the possessor sees about the enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises

• limited to unlawful intruders

• necessary and proportional

employer immunity

generally, employees cannot sue their employers for negligence because it's covered under workers’ comp statutes

government immunity

generally, you can’t sue the government except with permission through a private bill

exception: Federal Tort Claims Act

• discretionary function exception

• intentional torts exception

• Fares doctrine exception

discretionary function (FTCA exception)

If yes to both, then you cannot sue the government in negligence

1) Was the government individual acting within their discretion when acting?

2) Was the judgement of the kind that the discretionary function was designed to shield? (grounded in the social, economic, or political goals of the discretion)

intentional tort (FTCA exception)

government is not liable for intentional torts of its employees

Fares doctrine (FTCA exception)

you cannot sue for negligence or medical malpractice caused by a DOD provider