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Torts - Coggle Diagram

- - - - of harm
        
        alone does not create duty. but courts look at it when avulating whether a duty exists
      - of plaintiff
        
        majority
        
        duty is owed to P only if P is member of class that might be forseeably harmed as results of D's negligence
        
        mInority
        
        if harm is forseeable to anyone as a result of negligence, then duty is owed to everyone regardless of whether or not it was forseeable to specific plaintiff
      - specific classes
        
        rescuers
        
        person who comes to the aid of another is a forseeable plaintiff
        
        if your danger causes somebody to be in danger and then another person attempts to rescue them from said danger, you will be subject to liability for BOTH injuries
        
        police/firefights exempt from rule
        
        intended beneficiaries
        
        liable to a third-party beneficiary if the legal or business transaction that the beneficiary is a part of is prepared negligently, and the defendant could foresee the harm of completing the transaction.
        
        fetuses
        
        wrongful life/birth: fetus is owed duty of care if viable when injuryy occured
        
        Anticipated victim
        
        applied when during a special relationship, your client/patient tells you of their intent to harm a 3rd party. you have a duty to warn intended victim.
        must be serious threat
    - - Assumption of duty
        
        if you volunteer to help someone, u now have a duty to that person to act with reasonable care while helping.
        EXCEPTION:
        
        in some states, doctors and medical professionals are protected from this, but not from regular ordinary or gross negligence (good samaritan)
      - plpacing another in peril
        
        if u place someone in peril, u have an affirmative duty to exercise resonable care to prevent further harm
      - contract
        
        duty to perform contractual obligations w/ care
      - By authority
        
        One with actual ability and authority to control another, such as parent over child and
        employer over employee, has an affirmative duty to exercise reasonable control.
        Generally, this duty is imposed upon the defendant when the d
      - by relationship
        
        if you have uniqure relationship w/ person, u may have duty to protect. aid, or assistg plaintiff in preventing resonable forseeable injury ... example: your child
      - by statute
        
        statute requires citizens to act in specific circumstances 9like reporting animal abuse)
    - - reasonably prudent person
        
        D is required to exercise the care that a reasonable person under the same circumstances would deem as neccessary to avoid or prevent risk of harm
        
        mental and emotional characteristics
        
        standard: D is presumed to have regular average mental abilities as everyone else in community.
        
        NOT EXEMPT from liability because you have mental or emotional disability, unless a child
        
        RULE -- Held to the same standard as an oridnary person regardless of mental or emotional disability
        
        physical characteristics
        
        standard: reasonably prudent person w/ the same disability
        
        intoxication
        
        standard: same as everyone else unless intoxication was involuntary
        
        children
        
        standard: resonably prudent child of the same age, intelligence, and experience
        
        more subjective
        BUT, if child is doing adult activities, then the child will indeed be held to the same standard as an adult
      - specific classes of Defendants
        
        common carriers/inkeepers
        
        CC: generally held to higher duty of care than ord. negligence
        -IK: generally held to ordinary/reasonable care today
        
        automobile
        
        owe ordrinary care to guests and passengers on road
        
        bailors/bailees
        
        bailor
        
        has duty to inform bailor only of KNOWN dangerous defects in prop.
        
        bailee
        -: If the bailor alone benefits, the bailee is liable only for gross negligence; if the bailee alone benefits, the bailee owes extraordinary care and can be liable for slight negligence; if both benefit, the bailee owes reasonable care.
        
        emergncies
        same standard as a reasonable person in the same situation would
    - - two approaches
        
        trad
        
        1/2 of juris. standard depends on status of person on land
        
        modern
        
        same standard except to tresprassed
        
        known dangers
        
        A land possessor must take reasonable precautions for known or obvious dangers when the possessor should anticipate the harm despite such knowledge or obviousness. However, when the danger is open and obvious to the entrant, a warning will ordinarily not provide additional protection against harm. Consequently, if the only purpose of a warning would be to
        provide notice of a danger that is open and obvious, there is no liability for failing to provide such a warning. In addition, even when a warning is required, an entrant who encounters an obviously dangerous condition andfails to exercise reasonable self-protective care is contributorily negligent
      - Trespassers
        
        traditional
        
        guns - not allowed, cant do indirectly what u cant do directly
        
        discvered trespassers
        
        owe duty to reveal dangers
        
        duty is owed when reoasnably should know they are on your land
        
        undiscovered - no duty
        
        attractive nuisance
        
        may be liable to children if:
        
        child is likely to trespass
        
        unresonable risk od death of serious boidly injury
        
        burden to get rid of issue to light compared to risk of harm
        
        fails to exercise reasonable care to protect from harm
      - Invitees
        public: on land for purpose in which land is open to public (e.g., mall)
        business visitor: on land for business
        
        licensees
        social guests someone who enters land with express or implied permission
      - liability of landlords and tenants
        
        landlords liability
        
        The landlord remains liable for injuries to the tenant and others occurring:
        i) In common areas such as parking lots, stairwells, lobbies, and
        hallways;
        ii) As a result of hidden dangers about which the landlord fails to warn
        the tenant;
        iii) On premises leased for public use;
        iv) As a result of a hazard caused by the landlord’s negligent repair; or
        v) Involving a hazard that the landlord has agreed to repair.
        
        tenants liability
        
        liable t 3rd parties regardless of whetehr land owner is liability
      - off premise
        
        generally no duty is harmed by natural conditions; owes duty for artifical conditions
      - sellers of real prop
        
        Sellers of real property owe a duty to disclose to buyers any concealed and unreasonably
        dangerous conditions known to the seller. The seller is liable to persons on the land for
        harm caused by natural or artificial conditions if:
        i) The seller knew or should have known that the condition existed at the time of
        the sale and that it posed an unreasonable risk;
        ii) The buyer neither knew nor should have known of the condition or risk; and
        iii) The seller had reason to believe that the buyer would not discover the
        condition or realize the risk.
        The seller may also be liable to persons off the land for artificial conditions if (i) the
        condition existed at the time of the sale, and (ii) the seller knew or should have known the
        condition existed and that it posed an unreasonable risk.
        If the seller created or actively concealed the condition, the seller remains liable until the
        buyer actually discovers the condition and has a reasonable opportunity to remedy it.
        Otherwise, the seller’s liability continues only until the buyer has a reasonable opportunity,
        through maintenance and inspection,
  - - - Traditional Approach:
        reasonable prudent person
      - Cost-benefit analysis:
        1) forseeable likelihood that D's conduct would cause harm
        2) forseeable severity of any resulting harm and
        3)D's burden in avoiding the harm
    - - community:
        evidence of custom is admissible to establish proper standard of care; but it's not conclusive
      - safety codes:
        safety codes from industries, assoc., and gov. are admissible to prove customs
      - professionals
        
        General rule: a professional person is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community. A specialist may be held to a higher standard than a general practitioner because of his superior knowledge
        
        physicians:
        national standard of physicianss, some jurisdictions do within localities
        informed consent: must obtain. Not under obligation to disclose when:
        1) risk if commonly known
        2) patient is unconscious or incapable of giving consent
        3) patient is incompetent or
        4) disclosure would be detrimental to the patient
    - - Elements:
        
        criminal or regulatory statute
        
        D violates statute by failing to perform that duty
        
        P is in the class of people intended to be protected by statute; and
        
        harm is of the type the statute was intended to protect against
      - Defenses:
        an excused violation of an applicable statute can be a defense to negligence per se under the following circumstances.
        
        Greater risk of harm:
        D may be able to avoid liability by proving that compliance would have involved a greater rsk of physical harm to the D or others than noncompliance would have e.g., an emergency
        
        Incapacity:
        violation of a statute may not be negligent if the violation is reasonable considering the D's physical disability or incapacitation or if the D is a child
        
        Reasonable care:
        it is a defense that the defendant exercised reasonable care in attempted to comply with the statute
        
        Vagueness:
        if the requirements of the statute at issue were presented to the public in a confusing manner, then the defendants violation is excused
        
        reasonable ignorance:
        if the statute imposes an obligation only under certain factual circumstances that are not usually present and the defendant is not aware that these circumstances are present and proves that his ignorance was reasonable, then the defendant violation of the statute is excused for the purposes of negligence per se
    - - traditional requirements:
        
        accident was kind that does not ordinarily occur in absence of negligence
        
        caused by agent or instrumentality within exclusive control of D and
        
        due to any action on part of the plaintiff
      - modern trends
        
        medical malpractice:
        each D has breached standard of care unless that can present exonerating evidence of otherwise. in absence of this, courts hold all defendants jointly and severally liable
        
        products liability:
        
        compartive fault jurisdictions
      - Third restatement:
        factfinder may infer D is negligent when
        
        accident that caused Ps harm of the type that ordinarily happened bacsue of negligence and
        
        defendant is a relevant number of that class actors
      - Procedural effect
        trial court should deny D's motion for summar judgment and issue of negligence should be decided by trier of fact.
  - - - but for test
        if Ps injury would not have occured but for the negligent conduct
      - multiple causes and intermediate causes
        but for test will not work if
        
        multiple tortfeasors and D's conduct was not required to product harm
        
        tere are multiple possible causes of plaintiffs harm but P cannot prove which defendant caus eharm or
        
        defendant negligent medical diagnoses increased the probability of Ps death but P would have died anyway
        
        substantial factor
        test is whether defendants conduct was a substantial cause of the injury in the event multiple things could have caused it
        
        alternative causation -- if Ps harm was caused by:
        
        one of a small number of D
        
        each of whose conduct was tortious
        
        all of whom are present before the court,t hen court may shift the burden to each individual d to prove their conduct wasn't cause of harm
        
        concert of action
        if two or more people acting pursuant to a plan, then all tortfeasors are jointly and severally liablw
        
        toxic tort causes
        
        P must prove both general and specific causation
        --general: when substance is capable of causing disease
        --specific: substance was actual cause of injury
    - - foreseeability of harm
        
        majority: reasonably forseeable consequences
        
        Minority: andrews test
      - Indirect causation
        
        direct cause: P can recover when D's conduct are direct cause of Ps harm without the intervention of indepenfent contibuting acts
        
        indirect cause:
        breaks the chain of proximate causation between ds acts and ps harm. whether an intervening cause will be superseding depends upon its forseeable x5te
        
        forseeable intervening casues:
        
        will not cut off D liability.
        
        unforseeable intervening causes break chain of causation
        
        extent of damages: need not be foreseeable
  - - - emotional distress
      - economic loss
      - attys fees and interest
    - - medical and rehabilitative expenses, both past and future
      - pain and suffering
      - lost income and any reduction in future earnings capacity
    - - general rule: p may recover difference between FMV before and after injury
      - cost of repairs: crts sometimes allow this as an alternative measure of damages
      - houehold items: replacemen is the value of damages
    - - traditional rule
        insurance and outside sources that help the P cannot be considered against liability
  - - - zone of danger: P can only recover for this if in the cone of daner and the threat of impact caused emotional distress
        
        bystander recovery:
        bystander has to be
        
        closely related to the person injured by D
        
        was present at the scene of the injury
        
        personally observed
    - - wrongful death: loss of supprt, companionship, society, etc.
      - survivor: any claims the decedent herself would have had at the time of death
    - - spouses
      - parent-child
      - limitations
      - wrongful life and wrongful birth claims
        
        wrongful life:
        msot states dont do this.
        
        wrongful birth
- - - - children
        minor or mentally impaired individual is excluded as such from liability for an intention tort
      - transferred intent
      - IIED - A defendant acts recklessly if:
        
        the D knows of the risk of harm created by conduct or knows facts that make the risk obvious to another in the person's situation; and
        
        the precaution that would eliminate or reduce the risk involves the burdens that are so slight relative
    - - Factual cause
        Generally, D's conduct is a factual casue of harm when the harm would not have occurred absent the conduct
      - proximate cause
        
        limits D's liability. A D who intentionally or recklessly causes harm is not subject to liability for harm the risk of which was no increased by the D's intentional or reckless conduct.
  - - - harmful contact
        
        harmful when it causes physical injury, illness, disease, etc.
      - offensive contact
        offensive when person of ordinary sensibilities would find the contract offensive.
      - plaintiff's lack of awareness
        
        the plaintiff need not be aware of contact when it occurs to recover
      - indirect contact
        harmful and offensive contact need not be with the defendant himself.
      - lack of contact
        when there is no contract with Ps person, D is not liable for battery
    - - no proof of actual harm - nominal
      - punitive - punish, malice
      - unforeseen consequences
  - - - no actual contact
        unlike battery, contact with Ps erosn not required
      - anticipation of contact
        P must be aware or have knowledge of D's act
        
        objective verses subjective standard
        Ps anticipation must be reasonable under some jurisdictions can be subjective
        
        no need for fear
        
        prevention of contact
        Ps ability to prevent the threatened contact does not preclude the plaintiff from anticipating Ds conduct
        
        apparent ability
        Ds apparent ability to cause harm can be sufficient to place the plaintiff in anticipation of harm
        
        threat of contact with another
        threat of contact with another individual does not constitute an assault of the plaintiff
  - - - within limited area
        
        P must be confined within limited area where Ps freedom of movement is constrained
      - methods of confinement
        
        Physical barriers
        
        D can confine a plaintiff by creating a physical barrier that precludes the plaintiff from exiting a limited area. A P who knows of a readily available, feasible, and safe way to exit the limtied..
        
        physical force or restraint
        
        Duress
        
        assertion of legal authority
- - - - scope conditions
        
        A plaintiff’s actual consent extends to conduct by the defendant that is not substantially
        different in nature from the conduct that the plaintiff is willing to permit.
        
        revocation of consent
        
        plaintiff clearly communicates a revocation of his actual consent to thedefendant, the consent is generally no longer legally effective.
        
        consent to a crime
        
        jurisdictions are split as to whether a plaintiff may consent to a crime,
      - Mistake
        
        Actual consent given by a plaintiff due to a substantial mistake regarding the nature of the invasion of the plaintiff’s interests, the extent of the expected harm, or the defendant’s purpose in engaging in the conduct is nevertheless valid consent unless the defendant caused the mistake by affirmative misrepresentation or fraud or knew of the mistake.
      - Duress
        
        Actual consent given while under duress
      - Capacity
        
        A plaintiff’s lack of capacity due to youth, intoxication, or intellectual incompetence may
        negate the validity of consent.
  - - - no duty to retreat
        
        When a defendant uses nondeadly force, there is no duty to retreat even if the defendant
        can do so safely.
      - P unprivileged use of force
        
        When the defendant has consented to the plaintiff’s use of force, the defendant does not
        have the privilege of self-defense unless the plaintiff exceeds the scope of the defendant’s
        consent.
      - Immediacy
        
        For the defendant’s use of force to be privileged, the plaintiff must either be using force
        against the defendant or threatening to immediately use force against the defendant.
        
        spoken words, verbal gestures
        
        Spoken words or verbal gestures (e.g., provocative language, insults) do not by themselves justify the use of force.
      - Proportional force
        
        regarding the use of nondeadly force, the force used by the defendant should not be significantly greater than the force used by the Plaintiff
    - - no duty to retreat
        
        when a defendant uses deadly force, there is no duty to retreat even if the defendant can do so safely
      - burglary exception
        
        exception that permits a defendant to use deadly
        force to prevent a burglary of the defendant’s home, even if the defendant was not
        threatened with bodily harm.