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Torts - Coggle Diagram

- - - - but for causation
      - multiple tortfeasors
        
        Multiple multiple possible tortfeasors
        
        Multiple causes
      - substantial factor test (for when there are multiple causes
        
        test: was the defgendants conduct a substantial factor in causing the harm
      - alternative causation
        
        Plaintiffs harm was caused by one of a few defendants
        
        burden shifts to defendants to prove they were not liable
    - - foreseeable harm
      - foreseeable plaintiff
  - - - compensatory (actual damages)
        
        make the P whole against, can include emotional damages (pain and suffering
        
        Things you can get compensatory damages for:
        
        Personal injury
        
        medical expenses past and future
        
        lost income and reduced earning capacity
        
        Pain and suffering
        
        Property damages
        
        reduction in value before and after the injury
        
        cost to repair
        
        replacement value
      - punative
        
        meant to punsh and deter future conduct
        
        available when
        
        D acted willfully, wantonly, recklessly or with malice
        
        can be limited by statute and as a matter of due process must be within a single digit ratio of compensatory damages
  - - - a violation of the standard of care
      - traditional approach-reasonable person standard (common sense)
      - Cost benefit approach- burden <probability of injury x severity of loss
    - - Professionals: custom evidecne is admissible but not dispositive
      - physicians
        
        traditional rule: same or similar locality
        
        modern trend- national standard
        
        informed consent: patient must give informed consent
        
        doctor explains the risk
    - - traditional elements
        
        accident does not ordinarily occur without negligence
        
        caused by an agent or instrument within the exclusive control of the Defendant
        
        it was not due to any action from the P
      - Modern Trend
        
        accident that ordinarily happens as a result of negligence of a class of actors and
        
        defeandant is a member of that class
  - - - Typically there is No Duty to control 3rd parties unless special relationship
        
        exceptions:
        
        Employer/employee: Employers have a duty to reasonably control employees (even outside scope of employment, when on employer premises or using employer property
        
        Custodial relationship: doctors, jailers and similar pros who take charge of dangerous people have a duty to use RC to prevent them from harming others
        
        Parent/child: parents have a duty to use RC to prevent their child from intentionally or unreasonably hurting others
        
        property owners:have a duty of RC to prevent the property from being used dangerously (if present). also has a duty not to allow a third party to engage in activities under the owners control if owner knows the activity is like to create an unreasonable risk of harm to others.
      - Typically no duty to protect 3rd parties or act unless
        
        employer/employee: employer has a duty to protect employees on the premises or using employer property.
        
        custodial relationship: people who take charge of dangerous people have a duty to protect those under their care
        
        Parent/close family member/ teacher and child- duty to protect child
        
        property owners have a duty to protect those who enter their property based on land entrant rules
        
        Psychotherapist/patient: therapist who becomes aware that patient presents a specific, credible threat of physical violence to others have a duty to warn victims
        
        Commercial relationship: people who invite the public onto their land have duties to keep their customers reasonably safe
        
        Voluntary undertaking: people who agree to get involved or get involved in a situation can be held to a duty to rescue
        
        Coadventurer: people who have agreed to work/consort together in a remote location or dangerous activity owe a duty to rescue eachother
        
        D created danger even if nonnegligent
        
        duty imposed by statute
    - - exception if situation was created by D, they emergency will not be considered
      - People with special knowledge or skill: jurisdictional split some say special knowledge increases SOC ie. race care driver gets in an accident, liable in some places not in others.
    - - Standard: what would a person of reasonable sensibilities do in the scenario burden of precautions < probability of injury and gravity of injury
      - exceptions to Duty of care:
        
        people with severe physical impairments
        
        Children: 0-7 unable to commit negligence. 7-14 rebuttable presumption of unable to commit negligence: 14 up rebuttable presumption that they are capable of negligence
        
        exception: children doing adult activities are subject to adult duty
        
        Unforeseeable plaintiff. ie. Therapist fails to diagnose a patients mental disorder before that patient hurts someone. therapist doesn't owe a duty to victim
        
        Crushing liability: liability would be excessive or crussing on D
      - Doctor's Duty: based on national standard of care, this includes specialist
      - Professionals: duty equal to a reasonable profesional in good standing in profession
      - emergency situations: D actions are compared to person in emergency situation, often lowers SOC
  - - - zone of danger (near miss)
      - Bystander Recovery
        
        Closely related to injured person
        
        present at scene of injury
        
        Personally observed injury
      - Special relationship
        
        negligent mishandling of a corpse
        
        negligent medical information
      - Most jurisdictions require a physical manifestation
    - - loss of companionship
  - - - Respondeat superior
        
        In the scope of employment
        
        Frolic
        
        detour
      - business partners
        
        can be liable for the torts of other business partners committed with the scope of the business's purpose
      - independent contractor
        
        When is an employer liable for an independent contractor?
        
        does the employer retain a right of control over the way the employee completes the work
        
        Non Delegable duties
        
        Non delegable duties : an employer cannot contract their way out of liability by hiring an independent contractor
        
        duties to the public or specific plaintiffs (construction)
        
        shopkeepers have a duty to keep the premises safe for the public
        
        inherently dangerous activities
        
        apparent agency doctrine
        
        injured person accepted the IC's services based on a reasonable belief that the IC was an employee, based on manifestations from the Putative employer and
        
        IC's negligence is a factual cause of harm to one who receives the service and such harm is within the scope of liability
        
        baseline test: was the IC held out to be an employee? and can you prove negligence
      - automobile owners
        
        Negligent entrustment; letting someone use your car when they cannot exercise reasonable care
        
        owner liability statutes: may be vicarious liable for anyone driving your car with permission
        
        family purpose doctrine: may be vicarious liable for any family member driving your car with permission
      - parent and children
        
        Generally parents are NOT liable for torts of their minor children
        
        Negligent parents can be liable for their own negligence with respect to their childrens conduct (negligent supervision_
      - dram shop liability
        
        dram shop liability
        
        Commercial establishments
        
        in many states servers and bartenders are liable for injuries caused when people are overserved
        
        limited to serving minors and people who are visabily intoxicated
        
        Social hosts (some states)
        
        liability for serving alcohol to guest who then injure themselves or another
    - - Federal and state government
        
        can be sued undercertain statutory circumstances
        
        federal tort claims act: expressly waives immunity and allows the rfed to be sued for certain torts
        
        exception where immunity is not waived
        
        discretionary functions where immunity is not waived
        
        traditional government functions
        
        certain enumerated torts
        
        distinction between governmental functions (police court system) and Proprietary functions (performed by a private company (utilities)
        
        Governmental function immunity applies
        
        propietary functions immunity has been waived
        
        Government officials: distinction between discretionary and ministerial functions
        
        Discretionary: immunity applies
        
        ministerial(there is a procedure they have to follow) : immunity waives
        
        westfall act: Cannot sure federal employees under state tort law
- - - - Intent
        
        Elements
        
        The person has knowledge with substantial certainty that a consequence will happen
        
        substantial certainty=near certainty that the consequence will happen. Greater standard than 51%
        
        The person has a purpose to cause the consequence or
        
        Transferred Intent:
        
        allows intent to one tort to qualify as intent for the purposes of another tort and
        
        intent as to one person to qualify as intent as to another person
        
        Applies only to battery, assault, false imprisonment, trespass to land and trespass to chattels
        
        How intent is measured
        
        Subjective: this defendant had a purpose to cause the consequence or had knowledge with substantial certainty that a consequence would result.
        
        Relevant defendant factors: Age, mental illness, physical condition
        
        Motive is not relevant when determining intent. I intended to punch max, my motive was because I was having delusions that he was a monster. Intent is present.
        
        Exception: intentional infliction of emotional distress has a different definition of intent
        
        Single Intent vs Dual= Single intent jurisdiction requires that you make a volitional act, dual intent is you intend a volitional act and you intend the harm.
      - Particular type of outcome (causation)
        
        Plaintiff must establish that a particular type of outcome occurred as a result of the defendants act
        
        Intentional tortfeasors will generally be liable for all harm that results from commission of the tort, even if the harm was unforeseeable
        
        Remember Egg shell rule- take victims as they are
      - Voluntary Act
        
        Definition: Performed while the actor is in conscious control of the actors bodily movement, not reflexive, convulsive or performed while unconscious. Act is Voluntary if actor caused it to become involuntary (i got drunk)
        
        non action can be an act
    - - False Imprisonment "intentional confines another"
        
        Elements
        
        with boundaries set by actor
        
        confinement for appreciable time
        
        Confines another intentionally. Limited space (cannot confine to a state)
        
        must be aware of confinement OR suffer ACTUAL harm (not purely emotional harm)
        
        exception: when the P has a safe and reasonable means of escape
      - Intentional infliction of Emotional distress
        
        Elements
        
        intent or recklessness (unique)
        
        purpose or knowledge, NO transferred intent
        
        recklessness (1) D knows the risk created by conduct or knows of facts that make the risk obvious (2) magnitude of the risk is much greater than the burden of precautions that would reduce or eliminate the risk (3) D fails to take those precautions
        
        Causing severe emotional distress
        
        Doctors opinion can be used to show this but is not required. Physical manifestations are not required. ex) months of anxiety and sleepless nights (not i was upset for a week)
        
        extreme outrageous conduct
        
        Based on relationship between the parties, whether the D exploited P sensitivities, D's motivation, whether conduct was repeated or prolonged
        
        conduct exceeds the possible limits of human decency
        
        Bystander- D may be liable to a bystander if:
        
        severe emotional distress was to a member of the victims immediate family who is present at the time (even if no physical manifestations)??????
        
        to any other person who is present at the time, if such distress results in bodily harm????
      - Assault
        
        Elements
        
        intent
        
        causes reasonable apprehension of imminent contact
        
        mere words are not enough
        
        apprehension is the perception that contact is imminent
        
        Volitional act
      - Trespass to land "unconsented invasion of real property"
        
        Elements
        
        intent
        
        intent must be an intrusion onto the land by the person or something the person causes to trespass. Includes not leaving or leaving something on the land they have a duty to remove (intent to go onto land, does not need knowledge that land belongs to another.
        
        causation
        
        D either trespassed themselves or cause something tangible to trespass
        
        Volitional act
      - Trespass to chattels (interferes with personal property)
        
        Elements
        
        intent to interfere with personal property of another
        
        knowledge with sub certainty that actions would interfere with personal property of another. Does not need to know that property belongs to another, just intent to use chattel
        
        Dispossession of or harm to Personal property
        
        briefly touching is not enough, must take out of control of another person or actually harm property
        
        Volitional act
      - Conversion (destruction of anothers property)
        
        elements
        
        intent to interfere with the chattel
        
        intent to exercise dominion or control over the chattel or substantial certainty that D's action would result in exercise of dominion over the chattel
        
        serious interference (factors to differentiate from trespass to chattels)
        
        duration of the D's actions and resulting interference
        
        whether D's actions were in good faith
        
        Burden on the P
        
        severity of damage to property
        
        Volitional act
      - Battery "unwanted touching"
        
        Elements
        
        Volitional Act
        
        intent
        
        knowledge
        
        transferred
        
        Purpose
        
        causation
        
        harm/offensive contact
        
        direct- I hit you or something you are holding
        
        Indirect-I cause soimething to hit you
    - - Self Defense (protect self from threat of imminent unlawful force by another
        
        requires reasonable belief that someone is either inflicting unlawful force on D or about to inflict.
        
        mistake about belief does not eliminate defense (was belief reasonable)
        
        reasonable belief that force is necessary to prevent or minimize the unlawful force (some jurisdictions require retreat)
        
        Force used in response was reasonable
        
        D was not the initial aggressor (retreat or a verbal communication of surrender can shift the initial aggressor)
      - Consent
        
        apparent consent (D could reasonably believed the P actually consented)
        
        Proved by words, conduct, customs, actions
        
        can exist even when the P did not want to consent
        
        Implied consent (P is unable to consent but likely would, often used in medical/health instances)
        
        P is unable to consent
        
        actual consent requires
        
        material knowledge (was there fraud or misrep
        
        legal activity- cannot consent to illegal activity and negligence must be affirmatively stated to be effective. Minority view, can give consent to illegal activity unless you are part of a protected class of which law was meant to protect
        
        Capacity
        
        Scope of consent
        
        Consent can be revoked at any time, expressed or implied
      - Defense of others (use reasonable force to protect another person from threat of imminent unlawful force)
        
        Majority of jurisdictions allow the D to use force where D reasonably believes that force is necessary to prevent unlawful attack (police)
      - Defense of Property
        
        reasonable belief that another person is either (1) unlawfully entering D property or (2) unlawfully interfering with D property or (3) action is imminent
        
        Before using force D must ask the intruder to desist or such a request was not necessary (request was dangerous or futile ie armed intruder)
        
        intruder is not privileged to enter or interfere (ie necessity or recapture of chattel)
        
        Force used in response is reasonable
        
        There is no privilege to use force to regain possession of land
      - necessity (can use another's property when actions appear reasonably necessary to prevent an imminent substantially greater threat of harm from a natural force
        
        Public necessity
        
        intruder or trespasser reacts to a harm threatening a large numbe of people or public at large. No liability
        
        private necessity
        
        Harm threatening the D, D's property, or interests of a limited number of people. Defendant is liable for actual damage
        
        applicable to trespass to land, chattels, conversion
      - Discipline: permits a parent to use reasonable force or confinement as reasonably appears necessary for the discipline, control or education of a child
        
        applies to school teachers
        
        determining reasonableness of force or confinement consider: age, sex, physical/mental status, seriousness of behavior, importance of ensuring compliance, foreseeable short and long term trauma
      - recapture of chattels (3 important situations)
        
        Hot Pursuit: can only use force when in hot pursuit
        
        reasonable, nondeadly force: limited to ONLY reasonable nondeadly force
        
        Property was unlawfully taken: privilege only applies when personal property was IN FACT unlawfully taken
      - Arrest
        
        Felony
        
        arrest by police: privilege protection requires reasonably believe a felony has been committed and reasonably believe the arrestee did it. Force reasonably necessary to arrest
        
        Arrest by citizen: only protect if the felony was actually committed and person reasonably believe the arrestee did it. force reasonably necessary to arrest
        
        Misdemeanor arrest without warrant
        
        Police: Misdemeanor was committed in the officer's presence (cannot use deadly force unless meets requirements of self defense or defense of others
        
        Citizen: only if the misdemeanor is a "breach of the peace" (cannot use deadly force unless meets requirements of self defense or defense of others.
        
        facially valid arrest warrant and by police= privileged
      - shopkeeper's privilege (hold suspected shoplifters)
        
        detention for a reasonable amount of time (clear suspicion or police to arrive)
        
        reasonable amount of confinement or force used