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Torts Outline- Spring 2017, Eisenstat

Types of Torts:1. Intentional Tort (Defendant intentionally acted)2. Strict Liability Torts (Defendant still liable, even if precautions were taken)3. Negligence Tort (Failed to act as a Reasonably Prudent Person under the circumstances)

[Involuntary Contact is not a Tort.]

Approach to a Tort Problem: 1. Find elements the plaintiff needs to prove their case2. If plaintiff cannot prove every element, they lose

a. Work through the analysis on paper 3. If plaintiff can prove every element of their claim, look to see if the defendant has any

affirmative defenses.

Intentional Torts1. A Volitional act done with intent

a. Volitional Act: act done under the defendants control 2. For all intentional torts, you must establish BOTH Intent and Actualization of Intent 3. Intent:

a. To establish tortious intent, plaintiff must show that the defendant either: i. Desired natural and probably consequences of the act; OR

ii. Had knowledge that there was a substantial certainty the consequences of the act would occur.

1. Substantial certainty close to 100% likely, otherwise may be negligence

2. Subjective (Whether or not the defendant knew) b. Transferred Intent:

i. Tortious Intent towards one party can transfer to damage caused to another party as a result of that same intent.

ii. Example: Threw brick intending to A, hits B instead, the intent to hit A is transferred to B.

iii. Can transfer from victim to victim AND tort to tort 1. Intent to trespass to land can transfer to battery (jumping over

fence)2. Intended victim was owner of land, actual victim was fiancé who

you accidentally jumped on.iv. If original act is Privileged, there is no transferred intent because the

original act was not tortious. c. Mistake:

i. Mistake of fact does not negate intent. If you intend the consequences of your act, it doesn’t matter if you didn’t think you were committing a tort or thought you were committing it on another party.

ii. This addresses the fact that Motive and Intent are different things. 1. Example: You throw a brick to hit a dummy, hits the dummy and it

ends up being a real person. You had the intent, you threw the brick at the dummy but it was actually a person.

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d. Youth: i. A child’s intent is subjective and whether or not they could have formed

the required intent is based on the child’s maturity ii. Majority parents not automatically liable for the actions of their

children

Types of Intentional Torts & Elements: 1. Battery :

a. Elements: i. Intent to cause harmful or offensive contact with the plaintiff or a third

party; OR to create imminent apprehension of such contact; ANDii. Harmful or offensive contact occurs to the plaintiff, directly or indirectly

1. Offensive unpermitted b. Harmful & Offensive Contact:

i. Harmful Contact: 1. Physical contact to any part of a person’s body or anything

connected to the plaintiff’s person (Plate case)2. Severity of the contact is reflected in the damages. 3. You do NOT need to be aware of the contact, just need to prove

that you suffered ii. Offensive Contact:

1. An objectively reasonable person would be offended under the circumstances

2. The conduct is unwarranted by social usage prevalent at that time and place

a. Pay attention to context, setting, reasonableness of contact, and relationships of the people involved

iii. No transmission/ no exposure = no battery, actual physical contact isn’t always needed (Disease)

c. Eggshell Plaintiff: i. You get your plaintiff as you find them

ii. The exact damage caused does not need to be intended, you only needed to intend to make harmful or offensive contact

iii. Example: You slap someone, not knowing they have a condition, and break their arm, you are liable for complete damages because you intended to make harmful contact.

d. Idiosyncratic Plaintiff: i. No tort because an objectively reasonable person would not have found

the contact offensive (Think hyper-sensitivity/ uptight) ii. Exception:

1. You know of their idiosyncrasy and you use it against them a. Example: They have a fear of spiders and you mail them a

spider.

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e. Indirect Contact: i. Defendant makes contact with Plaintiff by throwing an object; OR

ii. Defendant comes into contact with an object ‘intimately connected’ to plaintiff’s body, such as clothing or something they are holding.

1. Courts are divided on smells, gasses, and light counting as objects 2. Defendant blowing smoke into plaintiff’s face on purpose may be

considered an object due to intent of defendant. f. Assault and battery could occur at the same time, or separately

i. Just Assault Apprehension but no actual contact ii. Just Battery Offensive contact but no plaintiff not placed in

Apprehension2. Assault:

a. Elements: i. Intent to cause harmful or offensive contact to plaintiff or third party; OR

to create imminent apprehension of such contact; AND ii. Plaintiff is placed in imminent apprehension of immediate harmful or

offensive contactb. Apprehension:

i. Whether or not the plaintiff was alert for contact at the time of the contact. ii. Must be reasonable

iii. If you are unconscious, you can prove apprehension with proof of struggle.

iv. Unconscious during surgery, NO assault. v. Standard is on alert for possible contact, not actual presence of fear or

intimidation 1. Small defendant attempts to punch giant man. Giant still has a

claim because he was in apprehension of unpermitted contact, not fear

2. Don’t need evidence that the defendant was going to follow through or not, just that the plaintiff thought they would/ could

c. Imminence: i. Not apprehension of immediate contact, but contact that will happen fairly

soon, without significant delay (A matter of moments) 1. Any longer than this and imminence standard is not met because

plaintiff should have found a way to avoid the situation ii. Conditional & Future threats:

1. Adding a condition to a threat or threatening a future harm removes imminence, so there is no assault.

iii. Reasonableness: 1. Plaintiff needs to have reasonably believed in the imminence of

harmful contact under the circumstances. iv. Plaintiff must believe threat is against them, not a 3rd party

d. Words versus Acts: i. Words alone are usually insufficient

ii. Need some kind of act like leaning, moving hand, shaking fist.

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e. Respondeat Superior: i. Employer will only be liable for the intentional tort of an employee if the

tort grew out of or is related to the scope of the employment.1. Frolic versus Detour rile: minor departure from course of work

versus a major departure from course of work2. Employer is not liable for intentional torts of an employee unless it

is a job that involves violence or controversy (bouncer/ debt collector)

3. False Imprisonment: a. Elements:

i. Defendant acts intending to confine plaintiff or a 3rd party; ii. Plaintiff is actually confined as a direct or indirect result of the act; AND

iii. Plaintiff is aware of the confinement at the time it happens. b. Jurisdictional Split on Awareness:

i. Majority: Most jurisdictions require all elements ii. Minority: Plaintiff’s awareness of the confinement is not a required

element if physical injury results from the confinement c. Intent:

i. Motive doesn’t matter to satisfy intentii. You could have a good reason for confining the plaintiff and it is still false

imprisonment, you may just have a defense of privilege d. Actual Confinement:

i. Size of area can be large or small ii. Keeping someone out of an area is not confinement, keeping them in is.

iii. If plaintiff could easily escape by reasonable means, it is not confinement iv. Physical barriers not necessary, can confine to woods or desert with no carv. Inconvenience doesn’t count, aka, making someone walk around the block

e. Coercion/ Inaction: i. Making a threat can count as confinement (If you leave, I’ll shoot you)

ii. Grabbing property and using it to get someone to stayiii. Threat of loss of job is insufficient, a job is not property iv. If you accuse someone of something and they stay to clear their name, it is

not false imprisonment v. Doing nothing at all, inaction, can be enough to restrain someone if there

was an understanding that the defendant would act for the plaintiff’s benefit

1. Ex: Sail across ocean, refuse to give passenger boat to go ashore f. Privilege:

i. If a person has a lawful right to confine another, there is no false imprisonment

ii. Shopkeeper’s Privilege: 1. In some states, a merchant may detain suspected shoplifters in a

reasonable manner for a reasonable length of time to investigate whether or not they stole the property.

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g. Duration of False Imprisonment: i. Doesn’t matter how long confinement is, this will be reflected in damages

awarded 4. Intentional Infliction of Emotional Distress (IIED)

a. Intentionally or recklessly cause severe emotional distress by extreme and outrageous conduct.

b. Elements: i. Extreme and outrageous conduct;

ii. Intentionally OR recklessly; iii. Causes severe emotional distress. iv. Damages

c. Extreme and Outrageous Conduct: i. Conduct goes beyond all bounds of societal decency

ii. Average person would be shocked to a great degreeiii. Factors:

1. What is said or done/ Duration/ repetitiveness of conduct; a. Insulting language doesn’t count

i. Exceptions: 1. Continuous contact, insulting for long period

of time2. Type of plaintiff could make a different,

young child, elderly, or pregnant woman. 2. Relationship of power & control over plaintiff and victim; 3. Defendant’s awareness of the plaintiff’s sensitivity under the

circumstancesd. Innkeepers and Common Carriers

i. ‘Screw them every time’ ii. Need the right kind of plaintiff, must be a passenger or a guest, not some

random passerby e. Intentionally OR Recklessly:

i. Intentionally is not just to act, but to cause severe emotional distress1. Acted with substantial certainty of causing emotional distress

ii. Recklessly means disregarding the serious likelihood that harm will occurf. Severe Emotional Distress:

i. Most states require proof of physical symptoms resulting from emotional harm (ex: ulcer)

ii. Most courts count psychological conditions as physical harm but require a doctor’s diagnosis or a medically recognized condition

g. Transferred intent will not apply in an IIED case: i. Victim’s best friend watched from a bush while they got beat up, no

transferred intentii. Exception:

1. Defendant knows a close relative is nearby while they beat the plaintiff then it would most likely be straight up intent

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h. Emotional Damages: i. Parasitic:

1. Emotional damages are attached to physical injury from a tort ii. Non-Parasitic:

1. Emotional damages are the only claim/ tort occurring

Affirmative Defenses/ Privileges to Intentional Tort Claims: For most, the defendant must raise the defense and prove it. Consent is the one exception where if the defendant raises it, the plaintiff must disprove it.

1. Consent: a. Plaintiff is willing for the conduct to occur. b. Two Types:

i. Express Consent (Apparent/ Actual Consent) 1. Words of the plaintiff would be reasonably understood to be

intended as consent. 2. Plaintiff says ‘Go ahead and do it.’

a. (Never this easy, if that happens look for incapacity, fraud, coercion, etc.)

3. Can revoke by express revocation ii. Implied Consent

1. Established through Custom or Usage : a. Can’t sue for battery while playing football, contact is part

of the custom or usage. b. Sports:

i. Some courts activity outside of rulebook is outside scope of consent

ii. Other courts activity outside of rulebook but within custom of sport, still under consent

2. Established by looking at plaintiff’s own conduct: a. Plaintiff’s consent to play football is implied consent to the

contact of the game b. Can revoke consent by disengaging in the activity

3. What if plaintiff was trying to play football for the first time and had no idea how American football was played?

a. Doesn’t change the analysis/ answer at all b. Implied consent is a ‘Reasonable Defendant’s Test’

i. Look from the reasonable defendant’s point of view while playing the football game

c. Check if the plaintiff had the capacity to consent: i. No capacity/ Ineffective Consent when:

1. Age: too young or too old2. Mentally impaired 3. Coerced or forced consent (Duress) 4. Consent based on fraud/ misrepresentation or mistake is void

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d. Scope of Consent for Medical procedures: i. When a patient consented to a medical procedure, the consent is either for

(depending on the court): 1. Specifically, the procedure you agree to; OR2. What the doctor thinks is medically necessary in the specific area

ii. If a doctor does a less invasive procedure than the one discussed with the patient, there is no battery on the patient.

1. While it may be malpractice, it is not battery because the patient agreed to greater contact so less contact is covered.

e. Informed Consent in medical procedures: i. If a doctor fails to give proper information regarding risks or alternative

treatments, consent is not totally negated but rather viewed as negligence to fail to disclose this information.

1. Lack of informed consent could lead to battery charges. ii. Elements to prove negligence based on lack of informed consent:

1. There was a duty to inform the patient of risk; 2. The physician failed to do so; AND3. Failure to inform was the cause of injury because the patient would

not have consented to the procedure had they known the risks.f. Duty to Inform:

i. 2 standards for when a doctor has a duty to inform a patient about risks: 1. Reasonable Patient Standard

a. All material risks that would be relevant to a reasonable patient making a decision

2. Reasonable Doctor Standarda. A reasonable doctor would consider the information

important to the patient’s decision making g. Exceptions to Duty to Inform:

i. Risks already known to the patient and ought to be known by everyone; ii. Emergency situations;

iii. Full disclosure would be detrimental to patient’s best interests 1. Even emotional harm.

h. Causation : 2 standards to show that injury was caused by failure to inform: i. Objective (reasonable person) test:

1. If a reasonable person would have made the decision to forego the procedure had he known the risk (MAJORITY)

ii. Subjective test: 1. If the specific plaintiff can show that HE would have made the

decision to forego the procedure had he known the risks i. Duty to disclose information about the doctor:

i. Depending on the jurisdiction, some may say a patient has a right to know certain things about the doctor, not just the procedure

1. Financial interests, success rates, etc.

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2. Self-Defense: a. May use level of force that is reasonable under the circumstances to prevent

someone from committing a tort against your person if: i. Tort is already happening; OR

ii. Threat is imminent OR you reasonable believe it is (if mistaken). b. Imminence:

i. Don’t need to wait until tort is in progress but you need to wait until it is just about to happen, cannot be a future threat and cannot act after a tort was already done (that would be retaliation)

ii. Address proximity? type of weapon? Homeless? Dwelling? assess all circumstances.

c. Mistake: i. Mistake regarding imminence of the threat is allowed in self-defense, so

long as the mistake was reasonable under the circumstances. d. Level of Force:

i. Must be reasonable under the circumstances, you cannot use greater force than:

1. You are faced with or reasonably believe you are; AND2. You believe is necessary to defend yourself

a. (If you know you can disarm someone based on your training, you must do that rather than use deadly force) ‘

ii. Deadly force and serious bodily injury are considered the same, both could result in death

iii. Cannot escalate to deadly force/ serious bodily injury unless you feel that you may be killed or seriously injured

1. Some jurisdictions allow threat of death or serious bodily injury to prevent battery but others see it as an escalation of risk

e. Initial Aggressor: i. Majority initial aggressor cannot respond to threat of escalated force

equally unless they first withdraw and announce their intent to do so and the other party refuses to stand down/ escalates the violence

f. Duty to Retreat: i. Majority: You have a duty to retreat, unless you are in your own home

1. Some jurisdictions have a ‘Stand Your Ground’ law ii. Minority: Unless you can do so safely, no duty to retreat

g. Injuring 3 rd Party: i. Use self-defense to protect yourself from one party and you accidentally

injury another party. (Shoot, miss, hit 3rd party) ii. Jurisdictional split:

1. Majority: No tort committed because original act was privileged thus no tortious intent to transfer.

2. Minority: Tort was committed because your privilege only extended to the original party, intent transfers because you had the intent to shoot in the first place

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3. Defense of Others: a. Same rules as self-defense but this involves the tort or threat happening to

someone else other than yourselfb. Except, there is a difference in regards to Mistake:

i. Jurisdictional split: 1. If mistake leads you to believe an aggressor is not privileged when

they were, or someone is in danger when they are not, some jurisdictions do not allow use of force while others will.

2. Courts will look to reasonableness of mistake (thought an undercover Police Officer making an arrest was a person mugging someone)

c. Analysis: place the defendant in the shoes of the person being protected and use the same rules you would apply for self-defense

4. Defense of Property: a. May use reasonable force to defend your real or personal propertyb. Deadly force can NEVER be used to protect property alone

i. Don’t confuse defense of property with self-defense1. Woman shooting burglar climbing into bedroom window

c. May not set deadly traps d. May use deadly/ serious bodily injury force if the situation turns to self-defense

such as a violent felony e. Mistake:

i. No force is privileged if you are mistaken about a person’s right to be on your property

f. Signs: i. Deadly force/ serious bodily injury may be used in some jurisdictions if

you first posted signs warning trespassers that they will be shot/ dogs will attack.

g. Recovering Property: i. Hot Pursuit Doctrine:

1. Can only use reasonable force if you are in hot pursuit of someone who wrongfully took property from you (grab an arm/ object out of their hands)

ii. If you are mistaken about theft, force is not privileged (unless you are a shopkeeper in some states)

1. Shopkeeper could detain suspected shoplifter in a reasonable manner for a reasonable period of time

a. Alleged shoplifter can claim false imprisonment b. Shopkeeper can claim defense of property

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5. Necessity: a. Act is privileged if actor reasonably believes it is necessary to prevent a greater

harmb. Tort is privileged against innocent 3rd party c. Two types:

i. Public Necessity 1. Individual commits tort to protect the public at large (group of

people or their property) 2. Act is privileged, actor does not have to pay damages to injured

party 3. Example: Can burn houses down to prevent spreading wildfire

ii. Private Necessity 1. Individual commits tort to protect himself or his property 2. Act is privileged but actor has to pay for damages inflicted on

injured party 3. Example: Pilot can emergency land on farm, but must pay for

damaged crops d. Lives for lives:

i. Killing some so others may live is generally not ok on a small scale but it is on a larger scale (Shooting hijacked plane out of sky before it flies into building)

NegligenceNo intent required, no different types of negligence torts. This is just a tort based on acting unreasonably under the given circumstances.

1. Elements: a. Duty (Plaintiff must establish that the defendant owed them a duty/ level of care)b. Breach of Duty (Plaintiff must show defendant violated that duty)c. Causation (Need both Actual and Proximate causation) d. Damages (Must have actual injury in order to recover)

2. Duty: a. How do you determine what a reasonable level of care is under the circumstances,

and that it was breached? We look at several factors; a jury is just told to look at how a reasonable person would act under the circumstances.

b. To whom do you owe a duty of care? To all people who are foreseeable victims to your failure to take precautions. Who is likely to be hit by the risk you put off by your behavior?

c. Reasonable Person Test: i. How would a reasonable person act. What would a reasonable person

know, how would a reasonable person balance the factors? ii. A Reasonable Person may act in several ways, alternatives possible

iii. (Remember, use ‘Poindexter’ as reasonably prudent person) d. Reasonable Care in Dangerous Activity:

i. In general, a defendant’s level of skill or experience is irrelevant because there is a minimum standard of skill required; BUT

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ii. If someone has a superior skill, THAT higher standard is the one to which they are held

iii. Analysis: Ask what would a reasonably prudent ______ person do under the circumstances?

e. Risk-Utility Balancing: i. Sometimes a court will have a jury measure whether a person behaved

reasonably by weighing the following factors in the ‘Risk Utility Test’: 1. Reasonably foreseeable risk of harm (% of harm); 2. Reasonable foreseeable gravity of harm; 3. Cost to avoid the harm; 4. Availability of other alternatives; 5. Social utility of defendant’s/ plaintiff’s conduct.

f. Social Utility: Is there a social utility to the defendant behaving or acting in a certain way?

g. Knowledge: i. Actual knowledge of a risk is not always a standard;

ii. There are some things you have a duty to know (flames burn skin, bald tires can explode, etc.) and you have a duty to check if the risk exists.

h. Emergency: i. If the defendant acted unreasonably in response to an emergency situation,

there is no negligencei. Disabilities:

i. Physical challenges: taken into account when determining reasonableness ii. Mental challenges: general NOT taken into account

iii. Age: Under 18, taken into account along with mental capacity/ maturity 1. If a child is engaged in an activity usually engaged in by adults, the

child will be held to the standard of care of an adult (ex: driving)2. Definition of an adult activity varies so courts usually considers

this to be ‘dangerous activity.’ iv. Religious Belief: Taken into account but not a deciding factor

j. Custom: i. Look at Custom to determine reasonableness (industry standard)

ii. Must prove that the custom itself is reasonable, following custom alone may not be enough to prove the defendant was acting reasonably

iii. Plaintiff can argue that the defendant did not follow a custom they were supposed to

iv. The more specialized a profession, the less likely it is for a custom to be declared unreasonable

v. Custom in industry was unreasonable therefore the defendant was unreasonable in adhering to it BUT:

1. Analysis should focus on whether or not the defendant acted unreasonably, NOT focusing on the unreasonable custom

2. Custom may be unreasonable but a defendant should not be punished for following professional norms in their field

a. Recognizes custom is unreasonable, but plaintiff doesn’t get compensated doesn’t seem fair but that’s how it is.

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k. Professionals: i. All professionals must possess and exercise knowledge, skill, and care

ordinarily possessed and used by members of their profession in good standing.

1. Requires expert testimony regarding industry standardsii. A specialist may be more liable than a general practitioner

l. Negligence Per Se: i. The act is considered negligent because it violates a statute or regulation

ii. Plaintiff can borrow a criminal or regulatory statute and use it to establish the negligence of the defendant if: (2-part Test)

1. Class of Person ; ANDa. Plaintiff can show the statute was designed to protect a

class of persons in which the plaintiff falls (Class of person)

2. Class of risk . a. Plaintiff can show the statute was designed to protect

against the type of harm or risk that is the type of harm that occurred in their case (Class of risk).

b. Does the reason the statute was passed match up with the injury obtained by the plaintiff?

iii. Exceptions: 1. Compliance with the statute would be more dangerous than

violating it. (Violation of the statute may be excused) (Crossing the center line into oncoming traffic to avoid hitting a child)

2. Compliance with the statute was impossible a. Driver had a heart attack causing him to not hit the brakes

and crash into a pedestrian. iv. Reversal of the Negligence Per Se doesn’t work, aka, just because you did

not violate a statute, doesn’t mean that you acted reasonably. v. Defenses to Negligence Per Se:

1. Actor’s incapacity (age) make violation reasonable; 2. Actor didn’t know AND shouldn’t have known compliance with

the statute was necessary; 3. Actor was unable to comply with the statute; 4. Actor was confronted by an emergency they did not cause, which

caused the non-compliance; 5. Compliance would involve greater risk of harm to others.

m. Res Ipsa Loquitor: i. No evidence but the situation is such that negligence must have occurred.

ii. Plaintiff must show: 1. Event ordinarily does not happen without someone’s negligence;

AND2. More likely that not (>50%), the defendant was the one that was

negligent. iii. Some jurisdictions only allow for Res Ipsa in cases of physical injury.

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iv. Defendant more likely than not Negligence: 1. Exclusive control over product/ etc., at the time when negligence

occurred 2. (MINORITY) If more than 1 defendant could have been the one

that was negligent and cannot show which one it was, this element is NOT MET, unless the plaintiff was unconscious and all defendants had a duty of care

a. In this case, burden shifts to defendants to show why they were not negligent.

3. Breach of Duty: a. Point to concrete specific conduct establishing a breach of duty b. Evidence of Custom:

i. Plaintiff: Everyone follows this custom/ precaution ii. Defendant: No-one follows that custom/ precaution

c. Custom evidence is always admissible but is never conclusive 4. Causation:

a. For a defendant to be found liable of negligence, their negligence must have been both the actual and proximate cause of the plaintiff’s injury. If there is more than 1 theory of negligence, you must show causation for every theory.

b. Actual Causation: ‘But For Causation’ i. But for the defendant’s conduct, would the plaintiff’s injury have

occurred. ii. Plaintiff needs to show that more likely than not (>50%), the injury would

not have happened without the defendant’s negligence iii. Factors that help prove ‘more likely than not’:

1. Negligence multiplies the chances of type of injury 2. Kind of negligence alleged naturally leads to type of injury

iv. Duty to Warn: 1. Duty to warn of risks you know about 2. Exceptions:

a. Plaintiff already knew of the risk from another sourceb. Plaintiff failed to read a warning/ would not have read it

v. Probabilities: 1. Plaintiff can use statistics from larger class of plaintiffs to show

>50% causationvi. Loss of Chance: (Medical Malpractice)

1. Where there is a chance the plaintiff won’t recover from surgery, and therefore cannot use traditional ‘but for’ causation due to odds.

vii. Multiple Defendants ALL causing Plaintiff’s harm: (Co-mingled cause)1. 2 Types:

a. Defendants acting in concert, were in agreement, both liable for all injuries

b. Successive Tortfeasors- one act comes before another, not planned or agreed on, damages may not be severable

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2. Divisible Injuries: a. Different defendant’s negligence caused separate injuries

that don’t merge together into 1 greater injury. Injury and damages can be split.

3. Indivisible Injuries: a. Negligence of both defendants caused all injuries so injury

and damages cannot be split. i. Drag racing

b. Joint & Several Liability: Plaintiff can choose to collect full amount from either defendant.

c. Several Liability: Jury apportions fault for indivisible injuries (percentages)

viii. Multiple Defendants NOT ALL causing Plaintiff’s harm: 1. Multiple Sufficient Causes: More than 1 negligent defendant, all

caused harm, yet harm still would have occurred if 1 was not negligent because the other caused the harm.

2. Where 2 or more parties were negligent, only 1 caused the harm, but the plaintiff cannot show which one it was. Burden shifts to defendants to show they did not cause the harm where:

a. Both defendants more likely than not negligence and one caused harm;

b. No fault of plaintiff that cannot prove which defendant caused the harm; AND

c. Defendants in a better position to determine who was at fault.

3. At trial, each defendant will try and prove the other was the cause of harm.

a. (Minority) Court may use Market Share Liability, giving a percentage of liability to each defendant.

ix. When same level of harm would have been caused by 1 actor when there was 2, both defendants are seen as ‘substantial factors’ in causing the plaintiff’s harm.

c. Proximate Causation: i. Proximate Cause is a mechanism we use to limit the scope of liability of a

defendant (A rock may cause many ripples when thrown into water, but the defendant is only liable for the ripples close to it, not far off)

ii. Only liable for those harms that are within the risk of your own activity iii. Elements:

1. Type of harm must be reasonably foreseeable; AND2. Person injured must be reasonably foreseeable.

iv. Analysis: 1. Look back at defendant’s conduct and ask why was it labeled

negligent risk in the first place? What were we afraid was going to happen? Was the harm within this risk?

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v. Foreseeable Type of Harm: 1. If the type of harm is foreseeable but occurs in an unlikely manner,

it doesn’t defeat the foreseeability requirement a. (RAT CASE: Unsafe conditions in a factory made fire

likely, and fire happens when a rat catches fire and runs into wall, still foreseeable because it is the fire that is foreseeable given the conditions)

i. Use ‘See Rate Case’ for foreseeable harm occurring but happening in a weird way.

2. Thin Skull Rule: Once you have caused injury, if it becomes more severe due to pre-existing conditions, you are responsible.

vi. Foreseeable Plaintiff: 1. Rescue is foreseeable, so someone injured while rescuing someone

endangered by negligence can sue, even if they were negligent in their rescue.

2. ‘Zone of Danger’ a. If a person is outside the foreseeable ‘zone of danger,’ they

are not a foreseeable plaintiff. (Dropped box, fireworks explode causing a ceiling tile to fall on a woman 20 yards away)

vii. Superseding Causes: 1. If intervening action of another is foreseeable then it does NOT cut

off liability. 2. If intervening action of another was NOT foreseeable then it does

cut off liability. 3. Ordinary negligence of another is foreseeable 4. Accidental act of another is foreseeable 5. Gross negligence or recklessness of another is NOT foreseeable 6. Intentional tort or crime is not foreseeable 7. Acts of nature may or may not be superseding causes depending on

foreseeability d. Intervening events where original actor/ defendant will almost always still be held

liable: i. Subsequent medical malpractice (always foreseeable and will rarely limit

liability of original actor) ii. Negligent Rescue

iii. Reaction forces (other people react to defendant’s negligence causes injury) (Think firing gun into air, causing panic, and a broken leg)

iv. Subsequent Diseases and Accidents: e. 3 intervening causes that can cut off a defendant’s liability based on their ability

to foresee the intervening cause: i. Negligence of a 3rd party

ii. Criminal conduct of a 3rd party iii. Act of God

1. If foreseeable, will not cut off liability (Ex: Knew of incoming storm that blows tools off of roof that hits someone in the head)

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iv. [In general, if the above risks are considered unforeseeable, it will cut off liability]

5. Damages: a. 3 categories:

i. Past and future medical expenses ii. Past and future lost income

iii. Plaintiff’s pain and suffering 6. Negligent Infliction of Emotional Distress (NIED)

a. No duty to avoid injuring people’s psyches/ upsetting people b. Direct NIED

i. Elements: 1. Plaintiff was in Zone of danger of physical harm; OR2. Plaintiff and defendant had a special relationship. 3. Physical Manifestation of emotional distress

ii. Plaintiff was in danger zone, wasn’t actually injured, but was emotionally distressed by the situation (Think “Near Miss” situation)

iii. Phobias: If plaintiff is worried that an incident will cause an outcome (chemical exposure and cancer) some courts will allow recovery if there is >50% chance that the thing you’re afraid of will actually occur.

1. Example: Cop pricked with needle, feared he would contract disease, had to wait for test results.

iv. Special Relationship: 1. Negligent handling of genetic material 2. Negligent handling of corpse 3. Doctor/ patient or Doctor/ Next of Kin where physical harm to

plaintiff was duty of carea. Usually has to do with delivery of baby, doctor drops baby,

but baby and patient are both OK) c. Indirect NIED (Bystander)

i. Can sue as a bystander/ indirect plaintiff if they were within the zone of danger.

ii. Elements: 1. Zone of physical danger; 2. ‘Dillon’ Factors:

a. Not necessary for a plaintiff to be within the Zone of Danger to recover damages, Zone of Danger is too restrictive. Can recover if Relative Bystander Test is satisfied: (These are factors, not elements)

i. Whether the victim and the plaintiff were closely related; (Fiancé doesn’t count)

ii. Plaintiff was located near the scene of injury; ANDiii. Whether the shock resulted from a direct emotional

impact of observing the accident. b. Court will use these factors to determine the degree of the

defendant’s foreseeability

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3. ‘Thing’ Factors: a. Dillon widened range of plaintiffs too muchb. Plaintiff can recover damages for emotional distress caused

by the inflicted injury on a 3rd person if: (3 required elements)

i. The plaintiff was closely related to the victim; ii. The plaintiff is present at the scene at the time the

injury occurs and is aware of the injury being caused to the victim; AND

iii. As a result, suffers serious emotional distress beyond which would be expected of a disinterested witness.

c. Sought to limit the scope of liability established by Dillond. Proving Emotional Distress:

i. Need physical manifestation of emotional distress in some jurisdictions 1. Can use X-RAY/ MRI, expert testimony from psychiatrist2. Some courts will not just accept plaintiff’s word

ii. Some Courts do not require physical manifestation of emotional distress1. A jury decides whether the circumstances were such that a

reasonable person would suffer emotional distress. 7. Limited Duty to Rescue:

- Where a bystander can foresee harm happening to another, do they have a duty to act to prevent or lessen the harm?

a. No Duty to Act except when: i. Defendant put the plaintiff in peril;

ii. Strong relationship between the parties; ANDiii. Where an individual has an obligation to prevent a 3rd person from harm.

b. Pure Bystander: i. Not special category of person, did not cause harm no duty to rescue

1. Minority of states require it if you can do so without risking your own safety.

c. Begin to Rescue but stop: i. If you start a rescue but stop because it becomes unreasonable to continue,

you may stop without breach of duty ii. If you start but stop for no reason, no breach of duty, UNLESS there is

reliance by the person being rescued or from another party (other person doesn’t help because they think you were helping)

d. Negligent Rescue: i. You are liable for damages during a negligently performed rescue if the

harm would not have happened without your negligence ii. Some states have Good Samaritan Laws that eliminate all liability in the

case of simple negligence by a rescuer. e. Special Relationship:

i. Business employees or patrons at a place of business (Common Carrier/ Innkeeper relationship)

ii. Employers and employees

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iii. Bus driver and passengers iv. First responders and public

f. Created the danger: i. If you create the danger, even if not through negligence, you have a duty

to act reasonably to help others/ a plaintiff to avoid it. g. Duty to Warn of Danger:

i. Factors taken into consideration: 1. Nature of risk

a. Foreseeability and severity, you need actual or special knowledge rather than just a reasonable belief

2. Opportunity/ ability to prevent harm 3. Comparative interests or relationships between parties 4. Public Policy

8. Duties Owed by Owners of Land A property owner’s duty of care towards people on property depends on the status of those people:

a. Pay attention to injuries as the result of some type of affirmative activity on the land as opposed to injuries sustained by some static condition on the land (hole)

b. Trespassers i. No duty to avoid ordinary negligence injuring a trespasser

1. Undiscovered Trespasser ii. Exceptions:

1. Discovered Trespasser: Duty to warn trespasser in perila. Duty to disclose ‘death traps’

2. Frequent Trespasser: Duty to warn routine trespassers (short cut to beach)

3. Attractive Nuisance: Duty to act reasonably if you know or have reason to know that children may trespass onto land due to a condition (trampoline, pool, etc.) (Warning may be sufficient)

a. Ask: Would owner of land anticipate children would be on the property?

c. Licensees i. People on land with consent of owner, but for own purposes (social guests,

solicitors, etc.)ii. Similar exceptions for discovered/ frequented trespassers, act reasonably,

warn of danger. iii. Landowner owes duty of reasonable careiv. First responders are treated as licensees (Police, Firefighters)

d. Invitees i. Anyone that comes onto property open to the public at large

ii. People invited to come on land for purpose connected to business of land possessor;

iii. Owner has duty to inspect for risks and warn against present dangers1. Reasonable inspection is expected, no duty to conduct expensive

inspection of property.

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e. Modern Trend : Some jurisdictions are combining Licensees and Invitees to create a full duty of care.

i. Others have eliminated all categories and simply limit liability based on if its foreseeable the person would be on the property.

f. Fall back on reasonably prudent person’s standard if not sure, use common sense factors such as whether the owner of the land could foresee conditions causing injury.

Affirmative Defenses to Negligence Torts1. Contributory & Comparative Negligence

a. Contributory Negligence: i. Plaintiff’s failure to use the relevant degree of care for their own safety

ii. Mostly abolished iii. If a plaintiff’s negligence was even slightly the cause of his harm, he was

totally barred from recovery. This was replaced with Comparative Negligence in the 1960’s

b. Comparative Negligence: i. Majority: Plaintiff recovers reduced by percentage of negligence

apportioned to him. ONLY if he is 50% or less at fault. ii. Minority: Plaintiff recovers damages reduced by percentage of negligence

apportioned to him, no matter how high the percentage is (Just needs to be less than 100%)

c. Assigning Fault: i. Conduct only considered if it caused the harm. Facts Considered:

1. Nature of conduct: unreasonableness under circumstances, failure to meet legal standard, abilities/ disabilities, awareness, intent

2. Comparative strength of causal connection to harm: timing, how attenuated, comparison of risks created to actual harm.

d. Modified Comparative Fault & Multiple Defendants: i. Majority: Plaintiff may recover is their fault is less than that of the

defendant’s combined negligence. e. Negligent Rescuer & Comparative Fault:

i. If rescuer is injured due to their own negligence, most courts won’t reduce recovery based on comparative fault unless the conduct was grossly negligent

2. Assumption of Risk: Where plaintiff voluntarily assumed a known risk, recovery is barred.

a. Express Assumption of Risk i. Plaintiff expressly agrees to assume the risk of harm from the defendant’s

conduct, even if the risks come from negligence, bars recovery ii. Exceptions:

1. Some states will not allow: a. Clauses excusing gross negligence b. Clauses for certain enterprises (pools) c. Parents to sign away rights of children

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2. [Pay attention to potential public policy implication with what clauses should be allowed or denied]

b. Implied Assumption of Risk: i. No express statement has been made but the plaintiff, they fully

understand a risk of harm, but encounter the risk anyway. ii. Either Reasonable or Unreasonable:

1. Implied Secondary Reasonable a. Running into a fire to rescue a child

2. Implied Secondary Unreasonable a. Running into a fire to save your favorite hat

iii. If the act is reasonable under the circumstances many courts will not bar recovery.

iv. If the act is unreasonable many courts won’t totally bar the claim but will consider it comparative negligence

3. Statutes of Limitations and Repose: a. SOLs vary from state to state, most states have 2-3 years SOL for injury from

negligence. b. Most states say injury occurs when it is discovered/ when the plaintiff knows or

should have known about the injury c. If plaintiff discovers symptoms of less serious disease caused by defendant’s

action, that triggers SOL for any fatal disease also later caused by it, EXCEPT in asbestos cases.

d. Cause of Injury: i. Most states: Clock for SOL will start when plaintiff knows of both the

injury and the connection between the injury and the defendant’s actionse. Minors:

i. Most states do not begin SOL for injured minor until minor reaches age of majority

f. Statutes of Repose: i. Protects defendants from long-term liability

1. Example: Protecting architects from liability after X number of year past completion of the building

Joint Tortfeasors1. Joint & Several Liability Under Comparative Fault:

a. Many states have abandoned Joint and Several Liability and adopted Comparative Fault

b. In states without Joint and Several Liability, defendants are only liable for their percentage of fault of harm rather than the full amount, even if the other party is insolvent

i. Restatement Exception: 1. 1 party intentionally acts on the plaintiff, bystander with special

relationship to plaintiff and duty to act does nothing. Defendant is insolvent, the plaintiff can seek 100% damages from the bystander with the legal duty to act, who didn’t act.

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2. Satisfaction, Contribution, & Indemnity: a. Judgment is ‘satisfied’ once the plaintiff gets 100% award, it is partially satisfied

if the plaintiff only receives a portion of the awardb. Contribution:

i. Exists only in Joint and Several liability jurisdictionsii. A defendant may request contribution from the other defendant (only for

indivisible injuries)1. Contribution should be based on apportionment of fault 2. Minority: Shares should be ‘pro rata’ you divide the full amount

of damages by the number of defendants, no one defendant may be asked to contribute more than the others

c. Indemnification: i. Exists in both Joint & Several Liability and Several liability states

ii. Rather than asking for a portion of the damages, the defendant may request that the other defendant FULLY reimburse for all damages,

3. Settlement and Release: a. If plaintiff settles with one defendant and goes to trial with another, the amount of

settlement will be subtracted from the full amount of damages awarded at trial. i. If settlement was bigger than the damages assessed at trial, defendant 2

doesn’t have to pay.

Damages 1. Intentional Torts: may recover even without showing actual damages; 2. Negligence: Need to show actual damage (emotional, physical, property) in order to

recover 3. A plaintiff’s behavior shortening life span affects awardable damages

a. Alcoholic/ Cancer patient/ drug addict/ etc. 4. Plaintiff’s Duty to Mitigate:

a. ‘Avoidable Consequences Doctrine’ i. Imposes a duty on the plaintiff to act affirmatively after the accident to

minimize harm that defendant’s conduct has caused. ii. Example: Injures arm, require surgery, doesn’t get surgery, tries to recover

higher level of damages resulting from not getting the surgery. 1. Doesn’t void all claims to damages, court will just award lower

amount as if the person acted reasonably b. Jurisdictional split on whether or not someone refusing treatment due to religious

beliefs5. May recover from past, present, and future damages

a. You MUST collect for future damages due to Claim Preclusion b. If you receive damages, then need more surgery 10 years in the future, you may

not sue again for additional damages, should have included that as potential damages during the first case.

6. Compensatory Damages: a. Goal is to make the plaintiff whole, status of the defendant’s income is irrelevant

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b. Parasitic Damages: i. Damages stemming from physical injury (pain and mental suffering)

1. Most states require proof of bodily harmc. Non-Parasitic Damages

i. Directly implicated on the tort occurring (Miscarriage/ heart attack) 1. Must prove physical injury depending on jurisdiction

d. Special Damages: i. Lost income

1. Look at past income, can be seen as speculative due to fluctuation in sectors

ii. Medical costs 1. Submit past bills, get expert testimony 2. Collateral Source Rule: even if insurance company paid for bills,

can collect as if you directly paid iii. Service costs

1. Bring in bills 2. Predict future damages by looking at time out of work, expected

retirement age, life expectancy, type of future care neededa. Reduction to present value: damages reduced extra that

would be gained through investment, some states will increase to account for inflation.

e. General Damages: i. Emotional Damages are harder to calculate.

1. Pain & Suffering 2. Disfigurement 3. Shame 4. Hedonistic (Can’t enjoy pleasures of life anymore)

ii. Need to demonstrate that plaintiff is conscious and therefore experiencing emotional harm

iii. Most states cap emotional damages iv. Measured by:

1. Per Diem Approach: divide injury into units of time, assign monetary value to each unit, then multiply by # of units the plaintiff will have to endure/ what jury deems appropriate

v. Remittitur - judge finds award too high, grants motion for new trial or simply reduces amount of damages awarded

vi. Additur- Judge finds award too low, grants motion for new trial f. Punitive Damages:

i. Goal is to punish defendant and deter others from similar acts ii. Status of defendant’s income becomes relevant because punishment is

based on their economic status iii. Punitive damages should hurt the defendant’s pockets

g. Consider small details such as unused sick time that gets paid out, plaintiff claims loss of wages but kept working and gets paid out for unused sick days?

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Exam Tips:

Break down liability by parties Don’t dive into minutia unless necessary to prove larger point Pay attention to easy, medium, and difficult issues Incorporate facts in resolving an issue Break down IRACs into 1 issue per paragraph

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Road Map to Issues:

1. Intentional Torts: a. Volitional act done with intent

i. Substantially certain b. Identify the Tort:

i. Batteryii. Assault

iii. False Imprisonment iv. IIED

c. Mistaked. Consider transferred intent e. Eggshell/ Idiosyncratic plaintifff. Indirect Contact g. Apply any relevant defenses:

i. Consent 1. (Remember Medical as well)

ii. Self-defense, defense of others, or defense of property iii. Necessity

1. Public & Private

2. Negligence: a. Elements:

i. Duty of Careii. Breached that duty

iii. Actual & Proximate Cause iv. Damages

b. Standards of Care?i. Reasonable person

ii. Professional (Custom?)iii. Risk/ Utility? Social Utility? iv. Children v. Landowners

1. Trespassers/ Licensees/ Invitees vi. Statute? (Negligence Per Se?)

vii. NIED1. Direct or Indirect

c. Breach of Duty i. Res Ipsa Loquitur

d. Duty to Rescue?e. Duty owed by an owner of land?f. Causation

i. Actual Cause? (‘But For’) ii. Proximate Cause? (Was injury reasonably foreseeable?)

1. Any intervening forces?

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g. Damagesi. Actual harm or injury?

ii. Did plaintiff have a duty to mitigate?iii. Parasitic versus Non-parasitic?

h. Any available defenses to Negligence? i. Contributory Negligence

ii. Comparative Negligence iii. Assumption of the risk

1. Express or Implied?

3. Nuisance: a. Private or Public Nuisance? b. Remedy?

i. Injunctive relief or damages?

4. Vicarious Liability? a. Respondeat Superior?

i. Was the employee within the scope of their employment/ furthering the purpose of their employer?

5. Multiple Defendants? a. Multiple defendants all causing plaintiff’s harm?

i. Divisible versus Indivisible injuries? ii. Substantial factor test

iii. Joint and Several Liability b. Multiple Defendants not all causing plaintiff’s harm?

i. Multiple sufficient causes? Percentage liability spit by court ii. 1 sufficient cause, not sure from who? Burden shifts to defendants to

prove innocence.

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