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TORTS CHECKLIST

General Reminders: Be selective: prioritize, go deep with a few points Be connected (facts to generalities) Argue pros and cons from the perspective of INTERESTED actors

Negligence Framework To determine whether there is liability based on negligence,

1) Look to the defendant (standard of care)


a) Did the defendants conduct fall below some standard of reasonable care? (p.13) i) Utility/BPL analysis ii) Culpability (1) Moral criticism: Error? Inadvertence? Disregard? (2) Standards: Subjective or objective? (a) Reasonable man standard emergencies, physical incapacities, children, insanity, mental retardation b) Do the more rule-like formulations of negligence apply to make it easier for the P to show negligence? (p.13) i) Professional and customary standards (1) Professional standards have greater weightplaintiff must show professional violated the standard. May be overridden by BPL. (2) Custom is evidence of care BUT not conclusive ii) Negligence per se (1) Elements (a) Safety statute (b) Legislative purpose to prevent the type of injury actually suffered by the plaintiff (c) Legislature must also have intended to protect a class of person of which plaintiff is a member (2) Also subject to defenses: (a) Justificationyes, I violated the statute but my action was justified (limited exception where violation results in more of the safety the statute was meant to promote) (b) ExcuseI wasnt culpable/didnt have sufficient knowledge to violate the statute. iii) Res ipsa loquitur (1) Elements (a) Accident wouldnt have happened except for the negligence (b) D was in exclusive control of the instrumentality which caused the accident (c) P/third party not involved (no c-neg or assumption of risk) (2) Effect in trial (a) RIL may be basis for an inference of negligence (jury may choose to draw conclusion from the facts in light of circs) (b) RIL may be presumption of negligence as a matter of law 2) Look to the plaintiff (defenses) a) Is there something about plaintiffs conduct (C-neg) that mitigates liability? (p.16) i) Strict C-neg regime: C-neg as a bar to recovery, unless (1) D had last clear chance to avoid injuring the plaintiff (a) D aware of Ps presence (b) D aware of Ps ignorance of his peril (c) D had last chance to avoid accident ii) Pure comparative fault regime: Regardless of her degree of fault, P may recover; however, percentage of fault reduces her recovery accordingly. (1) Comparing fault: (a) Look to D, find negligence. (b) Look to P, use all factors relevant in negligence analysis as tools of comparison (except for res ipsa)

(i) Utility analysis (ii) Culpability analysis (relative knowledge, awareness, capacity) (c) Look to connection (apply the but-for and proximate cause analysis) iii) Partial comparative fault regime: If Ps negligence is above a certain level (usually 50%), then P is barred from recovery. b) Is there something about plaintiffs choices (assumption of risk) that mitigates liability? [NOTE: DOES NOT apply in intentional tort cases] (p.17) i) Knowledge + choice = assumption of risk (1) Reasonable AR: abolished except if express, firefighter, recreation [primaryD never owed duty of care to P in the first place] (2) Unreasonable AR: absorbed into C-neg analysis c) Is there a sufficient (special) relationship to impose a duty of care on D? (see p.20) i) He caused the situation, OR ii) Special relationship (1) Public officials (2) Preparation of food (3) P an invitee/servant or injured by something under Ds control and P is helpless (4) Landowners duty to maintain property in a certain condition 3) Look to the connection between Ds conduct and Ps injury (causation) a) Actual (but for) causebut for Ds negligence, would Ps harm have occurred? (p.20) i) Total risk inquiry: establish via expert testimony that Ds negligence the probable cause of loss ii) Enhanced risk of injury: even if the P had a pre-existing condition, jury can still consider whether Ds negligent conduct (1) Increased risk of harm to P, and (2) Whether this increased risk was a substantial factor in producing the harm iii) Multiple causation: run the actual cause analysis for both acts, and if both Ds negligence was the cause, then Ds are jointly and severally liable (see p.21-2) b) Legal (proximate) causeis there a close enough connection between the negligence and the injury? (p.23) i) Foresight approach: (1) Was there negligence? (determined via foreseeability) (2) Was the harm that occurred of the sort that a reasonable person creating that risk would have expected? ii) Hindsight approach: (1) Use foresight approach to determine if there was negligence or not (2) Use hindsight to determine liability: direct or immediate, natural sequence of events, unbroken by efficient intervening cause (use intuition, policy arguments) 4) Is there some other reason why liability might not attach? (p.24) a) Intervening cause: Negligence of intervening third person (N2) may relieve person of liability for his own negligence (N1) i) Was the intervening negligence foreseeable by N1? (1) IF NOT, then it supersedes the liability of N1. (2) IF SO, then N1 is still liable. b) Purely economic loss: if a 3rd party experiences purely financial/econ loss, then too bad, even if its foreseeable, unless i) Administrative/disproportionality issues are insignificant + strong countervailing consideration (see p.25) 5) If the D is liable, how do you compensate P for the loss? (p.22) a) Personal injury i) Alternative objectives: (1) May try to place plaintiff back in position as if no wrong had occurred (2) Tax Ds negligence in sufficient amount to induce D not to be negligent ii) Recoverable damages: (1) Medical costs (2) Wage loss (what could have been earned prior to accident and what can be earned post-accident) (3) Pain and suffering b) Survival: brought to recover for damages from time of injury to time of death (not forward-looking). i) Wages and out-of-pocket expenses only

c) Wrongful Death i) Family members only ii) Recoverable damages: (1) Economic losses (2) Associative loss (companionship/consortium) spouses, death of a child, BUT NOT children losing parents (3) Emotional harm Tort Liability Beyond Fault Could this be a case of strict liability?

1) Vicarious liability? (p.29)


a) Ask, i) Was there negligence by the master (might include negligence in selecting, instructing, supervising contractor)? And if that fails, ii) Does strict liability apply? (1) Vertical (a) Master-servant: there is vicarious liability for the master if the tortious act of servant (could include intentional, negligent, any basis) was within scope of employment. (b) Employer-independent contractor: no V/L unless (i) Peculiar risk (Rest 2d 416)likely to create peculiar risk of physical harm unless special precautions taken (ii) Inherently dangerous activity (Rest 2d 427)special danger that is inherent in/normal to the work (iii) Abnormally dangerous activity (Rest 2d 423)highly dangerous activity (blasting, high voltage electricity transmission) (iv) Non-delegable duty (2) Horizontal (a) Partners: may need evidence that actor was acting to benefit the partnership 2) Abnormally dangerous activity? (p.30) a) Rest 2d 519: One who carries on an abnormally dangerous activity is subject to liability for any resulting injuries even if utmost care is taken to prevent them. i) What is abnormally dangerous? (see p.31 for details) (1) Danger (2) Abnormality ii) Typical examples: (1) Explosive or flammable agencies (blasting, storing explosives, hauling gasoline) (2) Handling poisonous or toxic materials (fumigating, crop dusting, disposal of hazardous waste) b) Is there an applicable defense? i) C-neg NOT a defense ii) AR is a defense unless Ds conduct leaves P no reasonable alternative to avert harm or exercise legal right. c) Is there a causal relationship between the dangerous activity and the harm? (apply causal analysis) 3) Strict nuisance? (p.31) a) Intentional harming (purpose/substantial certainty) b) Substantial harm to a reasonable/ordinary man [threshold reached] c) Causal link between activity and harm, d) BUT the activity itself is not BPL unreasonable. i) Even if there is no basis for an injunction, it may be unreasonable to leave the burden of the productive activity on P. Recovery is available unless the effect of recovery would be to enjoin the activity. 4) Products liability? (Rest 2d 402A) (p.36) a) Who can sue for products liability? User, consumer, 3rd party injured b) Who can be sued for products liability? Manufacturer and retailer c) What kind of loss can be recovered for? i) Physical harm to other property or person yes

ii) Economic loss: harm to the product itself (i.e. hasnt caused harm to other property or to your person) no
d) What is the basis for recovery? i) Manufacturing defect [strict]: one product in particular is flawed (doesnt matter how it happened) ii) Design defect: (1) Expectation test: did the risks associated with product design offend the expectations of the ordinary consumer? [strict] (2) Balancing test: Did the risks of the design outweigh its utility/is the designs risk justified? [CAN BE APPLIED IN HINDSIGHT, i.e. there can be liability w/o foreseeability] (a) Factors: (i) Availability of substitutes (ii) Likelihood and magnitude of risk (iii) Obviousness and public expectation of danger (iv) Avoidability of danger by warnings (v) Ability to eliminate danger w/o due expense iii) Failure of duty to warn: (1) When does it apply? (a) Product is [unavoidably] dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it with the ordinary knowledge common to the community as to its characteristics. (b) Risk is NOT OBVIOUS to consumer in the absence of a warning (c) For foreseeable uses or possibly misuses (d) Should indicate the nature and extent of the risk posed by ignoring instructions/warnings (2) IF the risk is KNOWN or KNOWABLE (in light of the best available scientific evidence), (a) Strict standard: must warn. (Rest 2d, p.1027) (b) Limits: (i) No need to warn about dangers of excess (ii) May not extend to patient if there is a learned intermediary [unless the product is very patientoriented, like birth control] (3) IF the risk was UNKNOWN to the manufacturer, (a) Strict standard: if the product was defective and proximately caused the plaintiffs injuries, manufacturer is strictly liable unless they can prove that the risk was scientifically unknowable (Shanks) (b) Stricter standard: even if unknowable, still liable (Beshada) (c) If the seller made an affirmative representation (even if not fraudulent or negligent), may also be strictly liable (d) Negligence: a reasonable manufacturer should have known about the risk and warned of it. iv) Still must show CAUSATION e) Defense: Can the injury be attributed to Ps conduct/choices? i) NOT a bar to recovery: (1) C-neg: Negligent failure to discover the defect/guard against possibility of defect ii) IS a bar to recovery: (1) Assumption of risk: knew of danger and unreasonably proceeded to make use of the product (2) Unusual handling/use: avg. consumer could not reasonably expect product to be designed/manufactured to withstand the use f) What if it was a combination of both? i) i.e. accident could be avoided by caution of users OR safeguards on product balancing, look for the CCA (see p.38) Intentional Torts 1) What kind of intentional tort was this? a) Personal injury: was there a battery? (p.3) i) Intentional infliction of a harmful or offensive contact with the person of the plaintiff () (1) Intent: purposeful OR substantially certain to result (Garratt v. Dailey) (2) Result: R1 = contact itself, R2 = harmful or offensive quality of contact

ii) Affirmative defenses ()


(1) Consent (a) Express? (b) Tacit? (c) Implied by law? (d) Scope? (e) Medical consentsee p.4-5 of outline (2) Self-defense: use of force to prevent impending battery/stop one in progress (a) Reasonable person in similar situation reasonably believe that physical force is necessary [different levels of subjectivitysee p.5] (b) Degree of force used was necessary b) No physical interference/harm: (p.5) i) Was there an assault? (1) Act with intent to place the victim in apprehension of a harmful or offensive contact/make such a contact, where victim is reasonably placed in apprehension of such a contact. (a) Imminence? (b) Apparent present ability? ii) Was there intentional infliction of emotional distress? (1) Outrageous conduct? [limiting factor] (2) Intention to inflict harm/reckless disregard for Ps well-being? (3) Severe emotional distress? (4) Causative connection between conduct and distress? c) Property harm (p.6) i) Was there a trespass? (1) Entry onto someone elses property without consent or privilege (interference w/ exclusive possession) (a) Intent: R1 and R2 in fact (harmful and offensive), BUT only R1 needs to be intended ii) Was there a nuisance? (1) Substantial and unreasonable interference with someones use and enjoyment of land (e.g. particle/landto-land interference) [NOTE that there are strict nuisances, too!! See below] (a) Intentional: purpose or substantial certainty (b) Substantial injury: the more physical, the better (c) Unreasonable: jury question 2) What kind of liability? (p.7) a) Fault-based liability: primary (change your behavior) and secondary (you must pay) criticism b) Strict liability: secondary criticism only i) Reasons why intentional behavior may not warrant primary criticism (privilege) (1) Public takings (government) (2) Public necessity (destruction of property to safeguard public good) (3) Private necessity (emergencies, possibly straight up utilitarian ALTHOUGH dubious) 3) What kind of remedies are available? (p.3) a) Compensatory: compensate an individual for loss of well-being suffered as a result of injury i) Medical costs ii) Lost wages iii) Pain and suffering b) Punitive: punishment to wrongdoer and deterrent to others i) Malice, character of outrage frequently associated with crime, wanton, willful or reckless disregard of Ps rights (Jones v. Fisher, p.47) 4) Is there any reason to mitigate Ds liability? (p.17) a) Some jurisdictions mitigate damages for intentional torts based on the plaintiffs negligence/fault. Compare Blazovic v. Andrich p.524 with Morgan v. Johnson, p.527.