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Torts - Coggle Diagram

- - - - IIED and Bystander
        3rd party has severe emotional distress from D's conduct, P must prove
        1) They were present when injury occurred
        2) Resulted in bodily harm (zone of danger) or P is close relative to 3rd person and perceived incident
  - - - Public Necessity Emergency situation where D acts to protect community a) acts as absolute defense b) must be imminent public disaster
      - Private Necessity Action to prevent harm to limited # of people/self a) D must pay compensatory damages b) limited/qualified defense c) not liable for nominal or punitive damage for trespass because D has privilege to enter e) can take shelter for as long as emergency continues aka right of sanctuary
  - - - Express Consent: Oral or written words giving permission
      - Implied Consent 1) custom/usage: reasonable person would infer consent from customs ( objective standard) 2) P's conduct/ body language implies permission
      - Exception: a) Fraud / Duress b) Scope- exceeding scope of consent results in liability.
    - - Self Defense
        1) Reasonable belief they are or about to be attacked
        2) Majority- No duty to retreat
        3) Modern- Duty to retreat before using DF, unless in home
        4) SF not available to initial aggressor unless other party responds to aggressors' non deadly force by using DF
        5) SF may extend to 3rd party, but actor may be liable to 3rd person
        6) Reasonable mistake OK
        7) May only use enough force to prevent harm!
      - Defense of Others: 1) Reasonable belief 2) Reasonable mistake ok 3) May only use enough force that actual person being threatened can use
      - Defense of Property 1) Reasonable force to prevent tort against prop 2) Does NOT apply to tort already committed, unless in hot pursuit b/c still in process 3) NO deadly force to defend prop 4) Reasonable mistake ok 5) Reasonable force okay
      - Shop Keeper Rule Shopkeeper can detain suspected thief if: 1) reasonable belief of theft 2) Detention done on reasonable manner and NO deadly force 3) Only for reasonable time and for investigatory purpose
- - - - Foreseeable Plaintiffs
        
        Rescuer: Rescuer foreseeable when D negligently puts himself or others in danger
        
        Firefighter rule: FF/police barred from recovery for injury caused by risk inherent in the jobs
        
        3rd Party may be foreseeable P when in zone of danger- Duty owed to those in zone of danger and physical zone depends on type of activity
      - Negligent Inflcition Emotional Distress- No physical harm
        
        Near Miss- FEAR 1) Negligence 2) P in zone pf physical danger 3) P suffers physical symptom from distress
        
        Bystander Case: D negligently injures 3rd party causing P emotional distress/grief. Requires 1) Negligent act 2) Close relationship 3) P @ scene and observed or percieved event
        
        Biz Relationship Case: P has claim if highly foreseeable that D's careless/reckless actions will produce emotional distress
        
        Example: Patient /medical lab mistake or Funeral parlour botch
      - Standard of Care
        
        Default Standard of Care: 1) D has duty to act as reasonably prudent person under similar circumstances 2) D owes duty to all foreseeable victims endangered by negligent act 3) Objective standard 4) Mental deficiency NOT considered 5) But if D has special knowledge/skill, he must use skill in exercising care 6) Reasonably prudent person has same physical characteristics as D if relevant to claim
        
        Kids SOC
        1) Under age 5- no standard
        2) Age 5-18- Standard of kid w/ similar age, experience, intelligence
        3) Subjective standard (pro defense)
        
        Exception: If kid engaged in adult activity = reasonably prudent standard
        
        Professional SOC 1) Knowledge/skill of average professional in field in good standing 2) Dr. must disclose risks associated with trx so pt. can give informed consent and duty breached if reasonable pt. would revoke consent if they knew of the risks 3) Compare to real world colleagues or use nat'l standard
        
        Property SOC- Based on status of entrant Rules to protect against dangerous conditions but for activities on land- use ordinary reasonable person standard
        
        Unknown Trespassers: NO DUTY to unknown/undiscovered trespasser
        
        No permission and owner doesn't know they are there
        
        Known Trespasser: Discovered OR anticipated trespasser- Owner must warn or make safe conditions that: 1) Artificial 2) Very Dangerous 3) Hidden AND 4) Known to the owenr in advance
        
        Licensee: Guest has permission to enter and does NOT financially benefit owner.
        Duty exists if: 1) danger hidden from licensee 2) Owner knows about it 3) But NO DUTY to inspect
        
        Invitee: Enters land w/ permission for benefit of the owner. Duty exists if: Danger hidden from invitee 2) known to owner OR 3) could be discovered by reasonable inspection
        
        Attractive Nuisance: Duty to use ordinary care to avoid foreseeable risk of harm to kids caused by artificial dangers. Required Elements: 1) Dangerous condition owner is or should know of 2) Owner knows or should know kids may trespass 3) Likely to cause injury 4) Cost to fix minimal compared to high risk
        
        How to Eliminate Liability 1) Eliminate hazard by repair, removal, replacement 2) Warn of danger 3) Special entrants have implied consent (FF/Police- risks inherent in job)
        
        Statutory Standard of Care
        
        Negligence Per Se: Duty imposed by law providing criminal penalties and may replace CL IF: 1) Plaintiff in protected class and 2) law designed to prevent the type of harm suffered by plaintiff
        
        Violation of law establsihes DUTY and BREACH
        
        Exceptions 1) Compliance w/law would be more dangerous 2) Compliance w/law impossible
        
        Duty to Act
        
        No duty to Act/ Rescue- but if person decides to act, they must do so as reasonably prudent person in circumstance or if D causes the peril, he has duty
        
        Special Relationship may create duty to act: Employee/er, parent/child, innkeeper/guest, common carrier, shopkeeper OR WHEN D CAUSES PERIL
        
        Good Samaritan Law: Protects negligent rescuers from liability
    - - Res Ipsa Loquitur:
        Used when P lacks information re: D's breach. Substitute for direct evidence of negligence and P must show:
        1) Accident normally associated w/negligence and
        2) Accident normally due to negligence in D's position or D had exclusive control over event causing damage
        
        No direct verdict allowed- must be jury decision
    - - Actual Cause Factual causal link between breach and harm. Use 'but for' test: Injury would not have occurred but for D's breach
        
        Merged Cause: Two defendant's acting independently each commit breach that combine into single indivisible harm --use substantial factor test
        
        Substantial Factor Test: D liable if breach contributed in substanital way to injury - jury decision
        1) if breach would be enough to cause the entire harm by itslef, then its a substantial factor
        
        2) Merged cause- Both breaches found to be substantial factors = D's held jointly/severally liable
        
        Unascertainable Cause
        1) Multiple acts, only one of which caused the injury, but unknown which one
        2) Shifts burden of proof to defendants and they must prove they were not responsible
      - Proximate Cause
        
        Foreseeability Test: Ask was harm a foreseeable risk associated with breach? Guidelines: passage of time, geographic distance, prior occurrence
        
        Superseding Intervening Force: Events that create unforeseeable results and supersede the original negligent act. Break the causal chain and relieves D from liabilty
        
        Foreseeable Intervening Force: 1) Med mal practice 2) Negligence of rescuers 3) Protection/Reaction to D's negligent conduct 4) Disease/accident resulting from OG injury 5) D may be laible when his negligence increases risk from harm of intervening force like a) negligent act of 3rd party 2) crime/intentional tort of 3rd part 3) act of God
    - - Eggshell Skull Doctrine- "Take your client as you find them" If P satisfies all other elements of claim, P gets all damages suffered even if great in scope
      - Property Damages No damages for emotional harm from prop damage or hurt /killed pets
      - Punitive Damage: No punitive Damage for negligence unless 1) wanton /willful 2) Reckless 3) Malicious