Tort Law Theories and Risk Assessment

Factors in Determining Risk Magnitude

• Social value attached to interests by the law
• Extent actor's conduct will affect interests
• Extent of potential harm
• Number of people affected

Tort Law Theories of Recovery

• Intentional torts: Actor intends harm to a protected interest.
• Unintentional torts: Actor creates an unreasonable risk of harm.
• Strict liability: Imposes liability regardless of blameworthiness.

Statutory Violation Proofs

• Strict liability: No proof of fault allowed.
• Negligence per se: Statute violation inherently negligent (some exceptions allowed).
• Evidence of negligence: Statute violation as evidence of negligence.

Determining Proximate Cause

• Directness test: Direct link between defendant's act and plaintiff's harm, no intervening forces.
• Substantial factor test: Defendant's conduct significantly contributed to the harm.
• Foreseeability test: Harm caused foreseeable by defendant's action.
• Risk standard: Liability for injuries within the scope of foreseeable risk.

Reasonable Person Standard

• Standard used to define negligence.
• Varies based on emergency circumstances and dangerous instrumentalities.
• Factors to consider include skills, knowledge, and experience of the actor.

Range of Application of the RPS

• Degree of care proportional to the danger involved.
• Emergencies considered in determining reasonable conduct.
• Dangerous instrumentalities necessitate higher degrees of care.

Recklessness

• Actor's conduct is careless when risk of harm is evident.
• Conscientious disregard of substantial risk.
• Significant indifference to risk of harm.

Proving Breach

• Plaintiff must demonstrate the defendant breached a duty.
• Statutory violation may be proof of negligence.
• Evidence needed to support a breach of duty.

Industry Customs

• Evidence of industry customs is relevant to negligence but not definitive.
• Customary practices are considered in determining negligence.

Res Ipsa Loquitur

• Presumption of negligence based on the nature of the injury.
• Plaintiff must meet burden of proof.
• Incident not usually occurring without negligence.

Cause-in-Fact (But-for Test)

• Injury would not have occurred "but for" the defendant's actions.
• Demonstrating causation requires showing the injury was directly caused by the defendant.

Alternative Tests of Cause-in-Fact

• Multiple Sufficient Causes: Multiple parties jointly cause an indivisible injury, and all are responsible.
• Alternative Liability: Parties who acted negligently and their injuries overlap and cannot be assigned to a single party, each one is liable.

Limits on Liability

• Foreseeability limits extent of liability.
• Consideration of intervening/superseding actions.
• Proximate and cause-in-fact analysis.

Comparative Fault

• Pure comparative negligence: Plaintiff's negligence reduces, but does not eliminate, damages.
• Modified comparative negligence: Plaintiff's negligence must be below a certain threshold to recover damages.

Assumption of Risk

• Express assumption: Voluntary agreement to accept risks.
• Implied assumption: Knowledge of and acceptance of risk.

Medical Professional Standard

• Similar care exercised by comparable professionals in similar situations.
• Adherence to similar standards of care in medical decisions.
• Expert testimony usually required to determine negligence.

Informed Consent

• Patients must be informed of risks and benefits of procedures before they consent/agree.
• Failure to disclose material risks may result in liability.

Owners and Occupiers of Land

• Duty to trespassers varies.
• Duty to licensees and invitees varies.
• Duty to discovered/tolerated trespassers.

Immunity

• Parental immunity
• State-specific exemptions.