Torts Mind Map

Negligence

Most heavily tested topic

Common ways it is tested: What is the plaintiff's best claim? What is the defendant's best defense? Will the plaintiff prevail?

Elements

(4) Damages : REMEMBER, P has duty to mitigate damages

(3) Causation

(2) Breach of Duty

(1) Duty

Defendants owe a reasonable duty of care to foreseeable victims. A reasonable duty of care is what an objectively reasonable person would do under the circumstances. Foreseeable victims are those within the “zone of danger” created by the defendant’s action.

Trespasser, Undiscovered- no duty

Trespasser, known or anticipated: Duty to warn of or to make safe dangerous conditions if non obvious and highly dangerous; No liability for obvious dangerous conditions

Invitee: Reasonable Care, duty to warn of or make safe conditions if non obvious and dangerous AND warn to make them safe; Duty to Inspect

Licensee: Reasonable Care: Duty to warn of or make safe conditions if non obvious and dangerous; No duty to inspect

Rescuer's Rule: A professional rescuer, such as a firefighter or police officer, generally cannot hold someone liable for negligence that creates a need for the rescuer’s services. The rule only applies to risks inherent in the professional rescuer’s job and that are the very reason for the rescuer's presence at the scene.

Other specialized duties: Children; Common carriers and innkeepers; Custom and industry usage; Professionals; Statutes; Strict Liability

Negligence per se: 1) the statute carried a criminal penalty; 2) the standard is clearly defined in the statute; 3) the plaintiff is within the class of people the statute was designed to protect; and 4) the harm is the type the statute was intended to prevent.

Res ipsa loquitur: (1) Harm normally would not happen absent negligence (2) Harm was caused by an instrumentality solely in defendant’s control; (3) Plaintiff did not contribute to the negligence.

Actual

Proximate

(2) Substantial factor test: This is used when there are two independent and sufficient causes and either alone could have caused the harm.

(3) Burden-shifting test: his is when multiple defendants acted, but only one caused the injury.

(1) The "but for test"

Proximate causes are so closely related to the injury that it makes sense to hold the defendant liable. If something is a direct cause, it will most likely be a proximate cause.

Other acts can occur after the defendant’s act and sever the chain of causation back to the defendant

If the subsequent event was foreseeable, it will be an intervening cause, but it will not sever the chain of causation and defendant will still be liable. If the subsequent was not foreseeable, it will be a superseding cause and will absolve the defendant from liability. Only harm must be foreseeable.

Quick tips:

Ignore all parties except the plaintiff and defendant.

If there is no actual cause, do not worry about proximate cause—it does not matter without actual cause.

Remember that only unforeseeable intervening causes will relieve the defendant from liability.

Personal injury: Past, Present and Future Damages; Specific and General Recoverable

Property Damage: Reasonable Cost of Repair; If irreparable, full market value at the time the accident occurred

Punitive Damages: Only if D's conduct is wanton and willful, reckless or malicious

Non-Recoverable: Attorney's Fees; Interest from date of damage in PI cases

Strict Liability

Takes the place of duty and breach

Elements

Nature of defendant’s activity imposes an absolute duty

Causation

Damages