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Torts - 1L
Torts Black Letter Law - 1L

Additional Law Flashcards




Elements in Tort
i. Duty: legal duty to comply with particular standard of care
ii. Breach of duty: failure to comply with applicable standard
iii. Causation

1. Harmful or offensive contact with another, resulting from an intention to cause that contact, or from an intention to put another in apprehension that a harmful or offensive contact is imminent
2. Requirements:
a. Physical contact
i. Must be some physical contact or something in contact with plaintiff
ii. Contact must result from defendant’s intention
b. Harmful or offensive contact
i. Does not need to cause injury, offensive is enough
ii. Reasonably interferes with personal dignity
iii. Protests personal security and autonomy
iv. Not ordinarily expected
c. Intent
i. Defendant must intend for the contact to occur
ii. No need for malicious intent
iii. Desire to bring contact or expect contact will result
1. Or must be near certainty it will occur
d. Transferred intent
i. If intent for contact with another person, person who actually suffers contact need not be the intended one
3. Take your victim as you find him (Eggshell rule)
Property Torts
i. Trespass to land
1. Breaches bounder of plaintiff’s property and interferes with plaintiff’s right
2. Only need intent to be present on land
ii. Trespass to personal property
1. Interference with plaintiff’s right of property possession
2. Only need intent to interfere with possession of the property
iii. Conversion
1. Unauthorized transfer of plaintiff’s personal property to a third party’s possession
Defenses to Property Torts
1. Public
a. Risk to property of a sufficiently large number of people to make the risk public and that risk can be reduced or eliminated by infringing of plaintiff’s property rights
b. No right by plaintiff to prevent defendant from using his property
2. Private
a. When there is a risk to another’s property which can be reduced or eliminated by infringing on plaintiff’s property rights
b. Defendant is liable for damage done to plaintiff’s property
3. Explanations:
a. One whom nature put at risk should bear cost of saving himself or his property rather than owner of property that does saving
b. Incentive to compare cost of liability with costs of alternatives
Negligence Standard
a. Failure to exercise reasonable care to avoid injury or damage to another person or property
i. Duty to exercise reasonable care to avoid causing foreseeable harm
b. Reasonable care
i. Dependent on circumstances
1. Typically a question for the jury
Reasonable Person Standard
i. Negligence is failure to exercise to exercise care that would have been exercised by reasonably prudent person under the circumstances
Reasons for Objective Reasonable Person Standard
1. Subjective standard would be infinitely variable depending on defendant
2. Subjective standard would encourage fraud and deception
3. Great potential to encourage defendant to exercise all skill and care possible
4. Public assurance that those whose actions they are exposed to will act with predictable level of care or be liable for consequences
5. Allows jury to judge based on own knowledge rather than look into defendants mind
Children and Reasonable Person Standard
1. Below age of 5, cannot be negligent
2. Older than 5: degree of care reasonable in a child of similar age, intelligence, and experience
3. If engaged in dangerous adult activities, held to adult standard of care
Foresee-ability and Reasonable Person Standard
1. Defendant not negligent unless he knew or reasonably should have known his actions posed a risk of harm
a. And if reasonable person under circumstances would taken precautions that defendant did not in order to avoid the risk
2. Can’t be negligent for failing to take precautions against unforeseeable risk
Negligence Calculus
i. Learned Hand Formula (B=PL)
1. P: Probability of Harm
2. L: Magnitude of Harm if it occurs
3. B: Interest that must be sacrificed to reduce risk of harm
4. If B>PL, unreasonable to take precaution
5. If PL>B, taking the risk is unreasonable (negligent risk)
ii. Issues with calculus:
1. Difficult to quantify factors in calculus
2. Monetary value on safety and well-being raises moral questions
3. Economic efficiency
4. Practical for large corporations
i. Evidence of compliance or non-compliance with industry custom is relevant, admissible but not necessarily dispositive
ii. Application
1. Sufficiently widespread to constitute custom?
2. Compliance with custom?
3. Up to jury
iii. Relevant because it reflects the judgment of a large number of those who engage in a risky activity
1. Compliance tends to suggest reasonableness
2. Potential victims may be aware of custom and can make judgments as to levels of self-protection necessary
3. Jury must suggest entire industry is behaving negligent
iv. 2 types:
1. Developed by people affected by custom (due care)
2. Developed by one group and affects another group (may not be due care)
Medical Malpractice
i. Compliance with custom insulates defendant from liability
1. Must violate standard of profession
ii. Respectable minority rule
1. If defendant complies with practice followed by respectable minority, not liable
iii. Strict locality rule
1. Must abide by custom of doctors in their locality
2. Abolished most places
3. Customs of doctors in towns of similar size w/ similar hospitals
iv. Informed consent
1. Must inform patient with potential risks
2. Must inform patient of benefits of treatment and probability of success
3. Must adequately inform patient
4. Reasonable patient standard
a. Information must be disclosed so that a reasonable patient in the patient’s situation (as viewed by physician) would learn what they would want to know
b. Disclosure of unusual concerns is necessary by patient
c. Failure to obtain informed consent is negligence, not malpractice
5. Reasonable physician standard
a. Minority view
b. Failure to obtain informed consent is malpractice
6. Exceptions
a. Unconscious patient in emergency situation
b. Risk-disclosure poses threat of serious detriment to patient due to possible issues with fear
7. Patient must show that they would not have undergone surgery if risks were known
Negligence Per Se
i. Violation of a statute designed to promote safety is negligence as a matter of law
1. Reasonable person does not violate a statute
ii. Excuses
1. Necessity, incapacity, and emergency
2. Children if incapable of complying with statute
iii. Defense of Limited Statutory Purpose
1. Plaintiff was not the class of persons intended to be protected by the statute or the statute is designed to address a different type of harm
iv. Reasoning
1. Prevents jury from having to answer question of negligence
2. We should rely on people to comply with rules and regulations set forth by statutes
Res Ipsa Loquitur
i. Circumstantial evidence that defendant was probably negligent without supporting an inference of the particular way in which defendant was negligent
1. Injury that ordinarily occurs because of negligence of someone in defendant’s position
a. Instrumentality causing injury within exclusive control of defendant
b. Causes other than defendant’s can be sufficiently eliminated
ii. Mere fact of accident having occurred is sometimes evidence of negligence
iii. “Smokes Out” evidence from defendant
1. Defendant must present evidence that he was not negligent
2. Could possibly implicate others
3. Multiple defendants can be charged when plaintiff unable to find who is negligent
iv. How often is an accident of that sort caused by negligence?
1. If close to 100% of the time, res ipsa is proper
Traditionally when Strict Liability
Activities that were first termed: ultrahazardous
Modern Test for Strict Liability Appropriateness
i. Abnormally Dangerous
1. Dangerousness Test
a. Degree of risk
b. Probability of harm
c. Inability to eliminate the risk by exercise of reasonable care
2. Commonness Test
a. Extent to which activity is uncommon
b. Inappropriateness to the area
3. Extent of value the activity has to the community
4. Liability only imposed for the kind of harm whose risk makes the activity abnormally dangerous
i. Substantial and unreasonable interference with the right of an owner of land to the use and enjoyment of the land
1. Pollution of some sort (Noise, contamination)
ii. Standard of care
1. Activity resulting in particular kind of harm actionable on strict liability basis (sometimes negligence or intent)
iii. Public nuisance
1. Low level criminal offense
iv. Private nuisance
1. Substantial and unreasonable
2. “Coming to the nuisance”
a. Not always dispositive
b. First party to make active use of property does so without fear of future nuisance liability
Remedies to Nuisance
1. No nuisance- D enjoins P
a. Defendant has right to continue activity even though it limits the scope of plaintiff’s enjoyment of land
2. Nuisance- P enjoins D
a. Defendant enjoined from continuing activity and must pay plaintiff for past losses
3. Nuisance D compensates P
a. Defendant given option to continue activity if the benefit to defendant is greater than the damages that must be issued in future to plaintiff
4. Nuisance P compensated D
a. Group of plaintiffs can decide whether the benefit of discontinuing a nuisance is better than the cost by compensating defendant to discontinue activity
Vicarious Liability
i. Liability for injury caused by conduct of another
ii. Respondeat superior
1. Employers vicariously liable for the torts of their employees
iii. Reasoning
1. Better position to make activity level and research changes and will generate more accuracy
2. More likely to be solvent
iv. “Within scope of employment”
1. Detour rather than frolic
Products Liability
i.  Traditional
1. Caveat emptor (let buyer beware)
2. No liability in absence of privity of contract
ii. Negligence
1. Imminently or inherently dangerous product, manufacturer could be sued
2. Eventually, moved to anything that could foreseeably harm a third party if negligently made was subject to liability
iii. Warranty
1. Guaranty of product safety allowed liability for injury and property damage
2. Merchantability implied in every contract for sale of goods
iv. Strict liability
1. Manufacturing defects
a. Product does not conform to manufacturer’s design
i. Plaintiff must show abnormality caused injury
2. Design defects
a. One that occurs in an entire product line
i. Risk benefit test: Does risk posed by the design outweigh its benefits? (Negligence)
1. More often used
ii. Consumer expectations: Is the design as safe as consumers expect it to be?
b. Problems
i. Asks jurors to engage in redesigning a product in which they have no expertise
ii. Line between safety of a single product feature versus product as a whole
3. Warning Defects
a. Once an adequate warning is given, the purchaser is the superior bear of risk
i. Warning of foreseeable risks
ii. Jury question
iii. Plaintiff must prove he would not have used product if adequate warning given
b. If reasonable alternative design can eliminate a product defect, then a mere warning about risks does not insulate defendant from liability
c. Prescription drugs are unavoidably unsafe and thus adequate warning is sufficient
v. Defenses
1. Comparative negligence
2. Product misuse
i. Absent special circumstances or relationship, no duty to rescue
1. But if I decide to undertake a rescue, I am liable if I conduct the rescue negligently
ii. Emphasis on individual liberty
iii. Defendant who has negligently put a plaintiff in position of danger may be held liable from negligently failing to rescue him from that danger
iv. Sometimes, non-negligent danger creators have a duty to warn another of that danger
Enabling Torts
i. One who negligently enables a third party to cause harm
ii. Strategically placed to take precautions to reduce the risk that a third party will injure the plaintiff
iii. Usually a pre-existing relationship between defendant and plaintiff or put on notice of risk to plaintiff by third party
iv. Additional moral factor must be present to suggest defendant owes duty to plaintiff
Premises Liability
i. Invitees
1. Business guests
2. Duty to exercise reasonable care
ii. Licensees
1. Social guests
2. Lesser duty of care
a. Must make premises as safe as he makes for himself
b. Must warn of hidden dangerous conditions
iii. Trespassers:
1. Only a duty to refrain from wantonly and willfully injuring them
iv. Exceptions
1. Discovered trespassers
a. Reasonable care
2. Attractive nuisance
a. Reasonable care to foreseeable trespass if property contains some “attraction” in dangerous condition
v. Modern
1. Based more on reasonable conduct under the circumstances
Pure Emotional Loss
i. Not result of negligently-caused physical injury
ii. Negligent infliction of emotional distress
iii. Generally no independent duty except:
1. When negligently handling corpse of loved one
2. When negligently sending telegram announcing death of loved one
3. When negligently misinforming of important information
4. When in position of authority over plaintiff in some cases (hospital allowing newborn to be kidnapped)
iv. Derivative Duty
1. Emotional distress resulting from fear of injury to oneself or another
2. Impact rule
a. Recovery for emotional loss only if defendants conduct resulted in some physical impact on plaintiff’s body
3. Zone of Danger Rule
a. Replaced Impact rule
b. Could recover if plaintiff was in the zone in which physical injury was threatened and feared for own safety
c. Relaxed to permit recovery if emotional loss resulted from fear another person in zone would be physically injured (one’s child)
4. Dillon v. Legg rule
a. Proximity
b. Visibility
i. Hearing not typically sufficient
c. Relationship
i. Must be immediate family or close to it
5. Fear of future injury
a. Limited circumstances
Ex. Fear of developing cancer for example
Cause in Fact
i. But-for test
1. But-for defendant’s negligence, plaintiff would not have suffered injury
ii. Substantial factor test
1. Other courts ask whether the plaintiff’s negligence was a substantial factor in bringing about the plaintiff’s injury
2. Rejected by most courts
iii. Asks what would have happened had defendant not been negligent
iv. In absence of other probable causes, jury permitted to find the Δ’s negligence is the probable cause
v. Necessary for corrective justice function
1. Deterrence only would ask if defendant risked harm to others
Multiple Causes
i. Two simultaneous causes: Both negligent
1. Both are held to have caused plaintiff’s loss
2. Plaintiff recovers 100%, split between negligent parties
ii. Two simultaneous causes: One negligent, one not
1. Negligent party still held liable
2. Slight overdeterrence
iii. Sequential causes
1. Party responsible for first force is liable if negligent, and party responsible for second force not responsible, even if negligent
Indeterminate Causes
1. Alternative liability
a. Two defendants negligent, only one could have caused injury
i. Both liable
ii. Burden on defendants to disprove cause of harm
2. Loss of a Chance to Survive
a. Liability for reduction in decedent’s chance of surviving
3. Market-Share Liability
a. Inability to identify which manufacturer makes a certain product
b. Plaintiff can recover a portion of damages from each defendant equal to the % market share of the manufacturer
c. Issues:
i. Substances produced by different defendants are not always identical
ii. Relevant market share data not always available
iii. Not feasible to sue all possible defendants
Proximate Cause
i. Foreseeability
1. Negligence is a proximate cause of harm if the harm was a foreseeable risk of acting the way the defendant did
ii. Harm within risk
1. Used to clarify the foreseeability test
2. Risk of injury suffered by plaintiff is one of the risks that made the defendant negligent
3. Sometimes, not principal risk but still foreseeable
iii. Intervention and enablement
1. Subsequent acts by a third party or operation of a subsequent force
2. Intervening cause does not break chain of cause because intervention is foreseeable
3. Superseding cause breaks chain of causation, because not foreseeable
a. Defendant not liable
4. Courts have a tendency to hold subsequent forces are merely intervening bc it adds another party for potential recovery
a. If made more likely because of the tort, not supervening
What must be foreseeable for proximate cause?
1. Unforeseeable plaintiffs
a. No liability
b. Defendants only owe potential plaintiffs a duty to exercise reasonable care to avoid risking foreseeable injuries
2. Unforeseeable extent of harm
a. Take victims as you find them (eggshell)
b. Not a defense
i. But plaintiff is obliged to mitigate extent of loss
3. Unforeseeable type of harm
a. Case by case basis dependant on:
i. Directness of harm
ii. Degree to which it more closely resembles unforeseeable type rather than extent
iii. Whether it caused other damage foe which defendant is already being held liable and therefore not being totally exonerated from liability
4. Unforeseeable manner of harm
a. Injury is foreseeable, but injury occurs in peculiar or bizarre manner
b. Does not bar recovery
Compensatory Damages
i. Losses proximately resulting from defendant’s tortuous act
ii. Property damages
1. Loss in value to repair/replace and consequential losses (profits)
iii. Personal injury
1. Out of pocket losses (health care, wages)
2. Pain and suffering (P+E suffering, disfigurement, loss of life’s enjoyments)
iv. Single recovery
1. Compensation for both past and future loss
2. Advantages
a. Case does not go on forever, no incentive to stay sick or injured
b. Economic planning can proceed for defendant
c. Judicial efficiency
3. Disadvantages
a. Less accuracy
b. Plaintiff must be an average investor
4. Awards discounted to present value
a. Less than absolute dollar amount awarded
b. If invested properly, will equal amount of future loss
c. Determine discount rate based on assumption of interest rate plaintiffs damages will earn
d. Future inflation also taken into account
Collateral Source Rule
i. Payments made or to be made to plaintiff by collateral sources such as insurance are not admissible in the tort action
ii. Plaintiff can recover damages from defendant already paid by insurer
iii. Prudence
1. Plaintiff should not be penalized for investing in insurance
iv. Double recovery
1. But, plaintiff should not obtain financial gain, but purpose is to deter
a. Plaintiff won’t be overcompensated because of attorney’s fees
v. Subrogation
1. Insurer has same rights against defendant as plaintiff to the extent of the insurers payments to the plaintiff
2. Right to be indemnified of prior payments to plaintiff
3. Plaintiff keeps loss, and insurer receives reimbursement
4. Not systematic because it takes too much effort
a. Most tort claims are settlements
i. Claims of portion to be paid to insurer are contestable
Wrongful Death Actions
1. Cause of action on part of those who survive decedent
2. Person would have been liable had death not ensued
3. Statutes determine
a. Beneficiaries
i. For designated individuals
b. Measure of damages
i. Losses a beneficiary suffers as a result of decedent’s death
1. Out of pocket, economic losses that would have been paid to beneficiary, and emotional loss
c. Defenses
i. Cause of action only if deceased would have had one had he not died
1. Comparative negligence of decedent
ii. Defense against beneficiary could also be used
Survival Actions
1. Preserve cause of action for losses suffered before he died
a. Medical expenses, pain and suffering
2. Recoverable by estate
3. Sometimes amount that would have been in decedent’s estate has he or she lived a full life expectancy
Punitive Damages
i. Damages designed to punish the defendant for behavior more blameworthy than even gross negligence
1. Knowledge behavior was highly likely to cause harm
2. Insufficiently deterred
ii. Unpredictable in size
1. Denial of due process if more than a single-digit ration between punitive and compensatory damages
2. Three factors in determining constitutionality of award:
a. Degree of reprehensibility
b. Disparity of proportion between harm or potential harm resulting from defendant’s act and the amount of damages awarded
c. Difference between this remedy and civil and criminal penalties authorized to punish defendant’s in comparable cases
Contributory Negligence
i. Failure of plaintiff to exercise reasonable care to protect himself or his property from risk of harm
ii. Burden on defendant
iii. Thing of the past
iv. Exceptions
1. Safety Statute
a. Defendant’s negligence consisted of breach of statute specifically designed to protect persons unable to protect themselves against defendant’s negligence
b. Contributory negligence not a complete bar to recovery
2. Greater degree of blame
a. Not a defense if the defendant’s conduct was an intentional tort or more blameworthy than mere negligence
3. Last clear chance
a. If defendant had last clear chance to avoid harming plaintiff, then contributory negligence not a bar to recovery
v. Many times the jury would reduce damage awards rather than completely bar recovery in “under-the-table comparative negligence”
Comparative Negligence
i. Plaintiff’s recovery reduced in proportion to amount of negligence attributable to his own actions
ii. Pure:
1. Never a complete bar to recovery
iii. Modified:
1. If plaintiff is more negligent that the defendant (or sometimes as negligent as), acts as complete bar to recovery
iv. Appeals to the ordinary individual’s sense of fairness
v. Multiple defendants
1. Plaintiff entitled to recovery of something unless plaintiff is principally responsible (over 50% in modified)
vi. Joint and Several Liability
1. Hold defendants jointly and severally liable for amount of judgment even though plaintiff also negligent
2. Hold each plaintiff liable for only its own proportional share of reduced judgment
3. All parties should bear risk that one party is insolvent, including plaintiff
vii. Needed in strict liability cases as well to give incentive for plaintiffs to avoid injury
Assumption of Risk
i. Express Assumption of Risk
1. Individual contractually agrees to waive right to bring tort action against potential injurer
a. Waiver must be knowingly and voluntarily signed with appreciation of significance
ii. No Duty of Care Breached
1. Defendant not negligent because openness of risk and voluntary participation in activity
2. Baseball game example
iii. Subset of Contributory Negligence
1. Plaintiff consciously took an unreasonable risk
iv. Conscious, Reasonable Risk-Taking
1. Non-negligent conscious risk taking is not a defense
2. Firefighter example
v. Notes
1. Plaintiff is employee of defendant
a. Typically higher pay because they assume risk
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