Torts

Intentional

Negligence

Strict Liability

Duty

Breach

Cause in Fact

Proximate Cause (scope of liability)

Damages

Assault

Battery

False Imprisonment

IIED

Reasonable person std

Homeowner

Professional

Mentally ill

Child

Statutory Duty (negligence per se)

Forseeable

products

animal

to capacity of x age child except when doing "adult activities"

sudden onset--> no, prior knowledge and didn't take steps --> yes

Restatment: everyone has duty of reasonable care except to flagrant trespassers (just avoid willfull and wanton)

Tricotomy

Tresspassers: avoid willful and wanton

Licensee (consent but not for benefit of owner): warn of "hidden harm"

Invitee (consent + benefit): reasonable care to keep property safe

Held to std of minimum professional ("ordinary skill and capacity")

plaintiff

harm

must be type of harm intended to prevent

must be class intended to protect

B < PL

which std? if nationally accredited: national, if not local unless the "custom" is dangerous (learned hand)

part of Duty and Breach, look at burden to fix vs possibility x actual dmg

circumstance

look at skills and knowledge above ordinary member of class (careful not part of std) 3rd restatment

Medical (Bradford)

Duty to disclose unless

imputed knowledge

would be "detrimental"

Emergency

This is still based on obj std, courts tossed sub and modified

Duty to disclose when physician has personal motives ($, fame, etc..)

Factors: is statute too obscure/ impose liability without fault, Disproportionate damages, Direct vs Indirect violation, emergency, attempted compliance

Minority rule: rebuttable presumption (some courts worried Neg per se is strict libabiltiy)

Allows burden to shift and a jury decides if custom outweighs a statute (Zeni) or both parties are "innocent" (Teply)

Evidence

Slip and Fall cases

look for "banana peel grittiness" aka length of time the object was there, opportunity for employees to pick up/see (constructive notice), and foreseeability that it would cause harm (unreasonable risk)

Weigh against things they did to prevent

Intervening Cause?

Cuts off liability

Res Ipsa Loq

Lack of control (the stove was fixed and repaired by 3rd party)

3rd party intentional tort

GR: suicide is

innocent plaintiff

defendant in better position to have actual or imputed knowledge

shift burden to defendent

Factors: post hoc ergo propter hoc

exception: type of harm that is foreseeable (credit card door)

But for

Substantial Factors

More probable than not (>51%)

Greatly multiplied chance of accident

Of a character naturally leading to the occurrence

plaintiff's preponderance to prove

must be more than possible (glass door --> cancer)

reduction of 14% to live is still substantial

Lost Chance Doctrine (p's % survival is lowered due to d)

courts are split

Time period matters

Time period matters

Some courts believe adopting leads to defensive medicine

Joint and Several

multiple Ds

all satisfy substantial factor or material element

P can sue one for ALL the damages; D can try to sue others

Pros: easier for P

Cons: burden to D

Forseeable

Direct vs Remoteness

type of behavior

Multiple tortfeasors

Concert of Action

Market share liability

Industry-wide Liability

Contributory Negligence

induced/ encouraged others (Restatement)

acting together (ex. shooting at bird together and hitting P)

"substantial share" of market

still have to show more prob than not

each D is liable for their "share" of the market

look to industry stds

jointly controlled risk

trade association

limited number of members

if P is partially neg (breach of common duty) , its BARS recovery

vs

Here, unlike Concert or Industry-wide, don't have to show inducement or control just that they opperate in same market

Subsequent tortfeasors

Each is liable for their tortious actions and those that "flow" from others

Courts will cut off at some point due to proximate cause

Elks

Dr. B

NH

Original

subsequent tortfeasor (satisfies sub factors)

Original

subsequent tortfeasor (satisfies sub factors)

NH cut off by court for proximate cause

Once courts determine prox, D is liable for:

Zone of danger

greater magnitude or different type than reasonably expected

Damage 2

Damage 1

Comparative Negligence

pure

modified

preexisting condition or other charateristic

aka: ALL damages that flow

eggboi P

subtract P's part, D's damages are apportioned by %

if P is liable for over 50% between any Cause of Action, that D is removed and totally liability is readjusted

Unforseen consequences

Often cut at intervening cause

ex. suicide, 3rd party. hinges on foreseeable

type of harm, P, and D

children? depends on type of act, if natural probable result then no intervening (Woodhouse)

must be actual (no nominal)

ex.: physical or mental erosion that leads to suicide

Social host

intoxication

high burden on host typically unless sub opportunity

Proximate cause of proximate cause?

courts typically say no (Grover DES case)

Ex. Fireman's rule

Attractive nuisance

p must sue a group of Ds that make a sub share

can't claim for injury incurred over course of employment

agency or instrumentally in exclusive control of the D

Duty to warn

typically for shrinks and schools

PP reasons: opportunity, foreseeable, type of harm

Can be broken due to statutory confidentiality requirement

Special relationship (Restate 3rd)

family

power dynamic

Doesn't apply to friends

Defense is typically D's action is intervening cause and starts new chain of events

NIED

relationship to P matters

restatement: family

common law: "closely related"

perception of events

need to see, hear (maybe smell?) events

some courts require "physical impact"

this can include self harm if it is "foreseeable" from the emotional harm (ex. cutting self or even suicide)

Vicarious Liability

Respondet Superior

Employee while within the scope of employment does something negligent (also intentional ie bounty hunters. bleeds with neg per se due to permits)

employer may be held liable under theory they improperly trained

ultimately about control (evidence like training, delegation, or hiring= employee

independent contractors

depends on amount of control the superior can exert

might be liable for slight deviations from scope of employment (driver deviates a few miles for food) depends on foreseeability

Willbanks: flagrant is D looking to do harm to you/ your property

instrumentality and activity with grave risk

applies to children

is it attractive and foreseeable?

factors: visibility from road, attempt to warn against (signs, fence, etc)

note: foreseeability is gold std, even if direct if breach of a std of care (traceable) (the arab workers case) it was not foreseeable harm and therefore no proximate

how traceable to breach of a std/ duty

4 additional factors to consider

Voluntary Act, Purpose/ sub cert to cause offensive/ harmful contact. Cause in Fact, Damage

Purp, sub cert and recklessness

knowledge of sensitivity

repeated behavior

Statutory: race, age, sex, etc

power parity

Reasonable amount of time

Shop keeper's priv

typically enough time to get police

Reasonable cause for

can be object associated with body

only for

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Assumption of Risk

domesticated

livestock

wild

abnormal activity (becomes unforseeable to plaintiff)

std

manufacturing defect

warning defect

design defect

some use strict

strict

When sell/ distribute "in business" of

look for:

better design

fail rate

liable even with due care

knowledge of design defect

knowability is important

this is not RES ISPA, P still has a burden of proof

knowledge

Prox

Damages

Cause in fact

put if stream of commerce knowing end user won't inspect

state of the art knowledge/ contemporaneous knowledge is important, businesses aren't insurers

No reasonable person duty to rescue (act)

Always look for special relationship first

no strict liability for tresspassers

some use history of bites this is Wilbanks preferred

liable for physical harm

While there is no duty in these cases, look for things like fences

This may be indicative of a assumption of risk

Absolute Liability

inherent danger, dont look at facts behind P's conduct just if they did it

even if lack control: instrumentality (activity with grave risk)

employs IC to maintain

still liable

Wilbanks isn't liable for a rando banana peel in Hannafords. However if Wilbanks drops a banana peel, she has a duty to warn

The intentional act creates a duty

Affirmative Defense: have to show plaintiff's neg is greater than D's and unable to recover under modified

Defenses:

Consent

implied

expressed

Necessity

Public

Private

Justified

click to edit

about type of Harm

vs OWN LIABILITY