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TORTS &TORTS REMEDIES(Summary Flowcharts)

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TORTS(Overview)

PERSON

Privacy

PROPERTY

Personal injury

Economic

Intrusion

Publicity

False Light

Comm. Approp.Deceit

Contract (Interference)

Negligence

Strict Liability

Emotional distress

Real

Personal

ReputationLibel

Slander

IS THE TARGET ) A

RESPONS. )?

WHAT ISB’S INJURY?

LIABILITY WIDENING

LIABILITY NARROWING

ACTUAL CAUSE

IDENTIFYB’S THEORY(IES)

INTENTIONAL: )’s Volitional Act and State of Mind

NEGLIGENCE: )’s Unreasonable Conduct

STRICT LIABILITY: )’s Abnormally Dangerous Activity, Defective Product or Animal

Intent

Subst. Certainty

WantonReckless

INTENT NEGLIGENCE STRICTLIABILITY

B

ª

Vicarious liab

Duty to controlContributionIndemnity

Death

Wrongful death action

Survival action

Survival

B

ª

Malicious prosecution/Abuse of process

19E

Conversion

Trespass

Person

Property

Zone of danger

) ‘s Act

Body Tort

Emotional Distress (Fright)

Physical injuryBystander ?

Intentional: Serious & outrageous

Negligent

Reputation/Privacy

Body

Business

Real

Personal

Î

Deceit

Nuisance

Emotions

Ï

Ï

Trespass

Defamation (Libel/Slander)

Invasion of Privacy

Assault

Battery

False Imprisonment

Intrusion

Public disclosure

False light

Commercial appropriation

Ï

Emotional Distress

Effect of Mistake

Î

Malicious prosecution/Wrongful institution of civilproceedings/Abuse of process

Public

Private

INJURY

Inducing breach of contract/Interference w/prospective business advant.age

Substantial certaintyINTENT

Transferred intent

INTENTIONAL

Exceeds Scope

DEFENSES

Necessity

Authority

Defense

Consent FraudIllegal

DisciplineArrestShopkeeper

OthersProperty

Public

Private

FelonyMisdemeanorPrevention

Self

19F

NEGLIGENCE

Affirmative Act

DUTY

Omission to ActBystander

Good Samaritan

General Rule: No Duty

Reas. care to foreseeable Bs

ExceptionsLand occupiersEmotional distressWrongful life

Special Relationship

Reliance

Creates the perilConduct

PromiseDuty to careDuty to warnDuty to control

Reasonable care underthe circumstances

STANDARDOF CARE

B in classType of harmExcuse

Î

Mental Illness

Custom

Emergency

Child (Adult activity?)

Carrier

Professional

Statute

LAND OWNERDUTY OF

Trad: Status of B

Modern: Reasonable

RC

Who is theB ?

Î

RC

AritficialConditions

NaturalConditions Activities

RCNo Duty(except trees)

Outside thePremises UnkownTrespasser No Duty No Duty No Duty No Duty

KnownTrespasser

License

Invitee

No Duty RC

RC

RC RC RC

Warn or Make safeKnown Dangers

Warn or Make safeKnown Dangers

Warn or Make safeKnown Dangers

19G

DEFENSES

Unexcused violation of statute

BREACH

Res ipsa loquitur

Reasonable person

Gravity/Likelihood

)

Burden/Utility

Actual

CAUSATION

But For

Substantial Factor

LegalWagonMound

Dependent

Unforeseeable?

Type

Probably negligence

Probably ªB did not contribute

Summers v. Tice

Direct

Indirect

Foreseeable result?

Extent

Market Share

Effect ofIntervening Force

Foreseeable result?

PolemisExtent

Type

Independent

Abnormal?

Comparative negB ‘s Conduct

Assumption of Risk

Pure

Implied

Reckless )

Last Clear Chance

DAMAGES

Contributory neg

Modified

Express

19H

STRICT LIABILITY

)ACTIVITY

AbnormallyDangerous

DefectiveProducts

AnimalsDomestic

Wild

High Risk

Cannot Eliminate Risk

Uncommon in Area

's

Intentional (Battery)

Negligence

Strict Liability

Implied Warranties

Express Warranty

Merchantability

Fitness forparticular purpose

Buyer / User / Bystander

Mfr / Retailer / Assembler

Franchisor

):

B:

):

Parties

Goods

Real Prop

Services

New

Used

Defect

Manufacturing (Flaw)

Design

Warning (Lack of)

Consumer Contemplation

Danger/Utility (Feasible Alternative)

Personal Injury

Property Damage

Economic loss

DamagesProduct Itself

Other

Product Misuse

's FaultBContrib/Comparative Fault

Assumption of Risk

Foreseeable

UnforeseeableDefenses

STRICTPRODUCTSLIABILITY

* Also Discuss:1) Negligence2) Warranties

19I

Concerning B

Individual/Group

Innuendo

Colloquium

) s Fault

Intentional — ok

Negligence — ok

Strict Liability — No

Initial Publisher

Repeaters

Disseminators

Responsible ) s

Damaging to B Slander per se

Ordinary slander

Libel

Business/Profession

Unchaste woman

Disease

Crime

Inducement

DEFAMATION

Published to 3d party

(Communicated)

DefamatoryStatement of

Fact

Reputational harm

Fact vs. opinion

Common LawUse of extrinsic facts

Also consider:

INVASION OF PRIVACY

EMOTIONALDISTRESS

Intentional

Negligent

1. Is the B a public figure or private person?

2. Is the subject matter a public or private concern?

-- Standard-- Damages

3. Was the standard violated?

A. Public figure B v. Media ) New York Times Malice

B. Public figure B v. Non-Media ) New York Times Malice

C. Private B v. Media ) (Public Negligence - actual damages Non-Media ) concern) Malice - presumed damages

D. Private B v. Non-Media ) (Private Negligence -presumed damages concern) Strict Liability ? ? ?

ConstitutionalLaw

Overlay(Approach)

Defenses

Truth

Retraction

Consent

Absolute

Conditional

Spousal

Govt.

Interest

Reporting

Fair Comment

C/L PrivilegesModern - B/P on B

Trad. view - B/P on )

19J

TORT REMEDIES

ASSAULT

BATTERY

FALSE IMP.

MENTAL DISTRESS

- Nominal ok- Compensatory- Punitives ok if) acts with malice

Ouster

Severance

Injury

Mesne damages

Diminution in value or

Rental value or

Benefit to )

Cost of repair

Diminution in value or

Cost of repair

TRESPASSTO R.P.

Public OK if special type injury

PrivatePermanent nuisance-Diminution in value

Loss of use, enjoyment

NUISANCE

TRESPASS CHATTEL Yes, depends on nature, extent of damages(dim in value or cost of repair)

CONVERSION Yes, FMV

Nominal

Compensatory

Punitive

General

SpecialDestroy

Damage

TakeForeseeable

CertainUnavoidable

Property(Real/personal)

Personal injury

NEGLIGENCEAll losses prox'ly caused

Caveat: economic loss

Caveat: mental distress alone

(No punitives)

STRICT LIABILITY All loses prox'ly caused Caveat: economic lossLimit: Damages flowing from dangerous propensity

(No punitives)

PRODUCTS Depends on Theory: See above

DRI

TYPESOF

DAMAGES

DAMAGES

19K

RESTITUTION

Constructive Trust

Equitable Lien

Replevin

EjectmentLegal

Equitable(Quasi-K)

Tort liability theory

Inadequacy

Feasibility

Balancing

Property Rt.

Defenses

ofLegal Remedy

Damages

Ejectment

Replevin

Speculative

Multi suits

Real property

Irrep. injury

Jurisdiction

Mandatory vs. Prohibitory

When?

Who?

What torts?

Laches

Unclean Hands

Free speech

Criminal acts

Traditional view

Modern view

Personal

Business

Nat. security

INJUNCTION

TROPrelim. Inj.

Perman. Inj.

DEFAMATION

Damage to reputation Presumed? Libel/Slander Per SeCaveat: Gertz - Actual DamagesSpecial Pecuniary losses always recoverablePunitive-maybe

PRIVACY

Publicity - Distress plus special damagesIntrusion - Distress plus special damagesFalse light - Distress plus special damagesComm. approp. - Benefit to

FRAUD/DECEIT Maj: expectation (benefit of bargain)Min: out of pocket

INTERFERE W/ K Maj: tort measureMin: K. measure

PROSP. ADV. Caveat: speculative

)DAMAGES(continued)

19L

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Volume II – 6 Upper Division Subject Outlines - Contains detailed substantive law outlines for Upper-level subjects including Wills, Trusts, Community Property, Business Associations (Corporations, Agency, Partnership & LLC’s), Civil Procedure and Professional Responsibility.

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b. First Year Volume - This book contains flowchart handouts and essay hypotheticals for the review lectures and writing workshops contained on the iPod®. The flowcharts are designed to be used with the review lectures to give students a visual framework for learning and organizing the law. They are also used in the workshops to develop issue-spotting approaches and to simplify exam outlining. This book also contains 15 additional essay hypotheticals with model answers for practice. These may be submitted for grading; additional charges apply.

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