Torts Outline New PDF

1. Vicarious Liability- is a legal concept that holds a person or organization responsible for the actions of another person, even if they were not directly involved: a. Plaintiff Side i. Survival Statute 1. Allows the estate of the deceased to bring sui...

1. Vicarious Liability- is a legal concept that holds a person or organization responsible for the actions of another person, even if they were not directly involved: a. Plaintiff Side i. Survival Statute 1. Allows the estate of the deceased to bring suit for any harm for which the deceased could have sued had they survived. ii. Wrongful Death Statute 1. The claim is brought by the surviving family members or dependents to maintain an action against the defending party b. Defendant Side i. Respondeat Superior--Employee, agent, or apparent agent 1. Apparent agent requires: a. Representation i. Must make a representation or give a third party a reasonable belief that the agent has the authority to act on behalf of the principal. b. Reliance i. The third party must reasonably rely on the representation that the agent is acting with authority on behalf of the principle. c. Change in Position i. Typically the third party taking some action or making a decision based on their belief that the agent was acting with the principal’s authority. 2. Scope of Employment a. Spatial and temporal bounds i. The employee’s actions must occur during work hours and in the physical location or area where the employee is expected to perform their duties. b. Acting in Furtherance of Employer’s Business i. The employee’s action must be motivated, at least in part, by desire to further the employers c. Performing Duties Assigned by the Employer i. The actions must relate to the tasks or duties the employer has authorized or assigned to the employee. Even if the employee acts negligently while performing those tasks, the employer can still be held liable if the task is part of the employee’s job. 3. Employer Negligence  a. If the employer knowingly hires an employee with a negative past, they may be liable if they are given a position where that negative past has retriggered at work. 2. Negligence Principle a. Standard of Care - Level of care that a reasonable person would exercise in a given situation. b. Objective Standard of Care - Measures a person’s conduct against that of a hypothetical “reasonable person” in the same or similar circumstances. Certain characteristics are taken into account for objective standard of care; i. Mental Ability is not, it leaves a vague line of what degree of judgement should be made ii. Physical Disability is, someone who has an obvious physical disability such as being blind, would not get compared to someone who can see. iii. Old Age is not taken into account when dealing with negligence unless something happens unforeseeable like a stroke iv. Children are compared to the same standard as other children. Unless, they commit an act of an adult such as driving a boat or car. c. Subjective Standard of Care - Considers the defendant’s knowledge, experience, and beliefs when determining whether their actions were reasonable. i. External - Considers the individual’s specific characteristics, abilities, or limitations when determining whether they acted reasonably. For ex. Age, mental capacity, or physical limitations. ii. Superior Attributes - You get compared to others in your profession such as a doctors will be compared to other doctors to see if they operated in the correct standard of care d. Utmost Care - Taking great care, being very careful, and paying close attention to details. e. Due Care - Referred to as ordinary or reasonable care, it is the amount of care a reasonable person would do. 3. Circumstantial Evidence - Indirect evidence that does not, on its face, prove a fact in issue but gives rise to a logical inference that the fact exists. Circumstantial evidence requires drawing additional reasonable inferences in order to support the claim. a. Negri i. Jury could have found that constructive notice because the spill has been there more than 15-20 minutes. b. Gordon i. No jury verdict because there was not a way to prove how long the paper was there. Insufficient notice under constructive notice. c. Evidence  i. More evidence than Negri goes to trial, anything less than Gordon is not enough to go to jury 4. The Role of Custom - Established practices or common behaviors within a particular industry or community, which can be used as evidence to help determine whether a defendant acted with reasonable care. But is not conclusive but more as a guide to constitute a reasonable standard of conduct in a given situation, allowing courts to consider whether a defendant followed or deviated from the typical practices of their field when accessing negligence. 5. The Role of Statutes a. Martin (land) - Safety Statutes i. Contributory Negligence - When the plaintiff’s own negligence contributes to their harm. (Martin did not have his headlights on) ii. Negligence Per Se: 1. The defendant violated the statute 2. The statute is used to protect specific classes of people 3. The harm the plaintiff suffered is the kind the statute was intended to prevent 4. The defendant’s violation of the statute caused the plaintiff’s injury iii. Prima Facie Evidence - Evidence that appears to be enough to support a case at first glance, and that would usually warrant a hearing. iv. Statutory Purpose - Plaintiff has to prove the harm that occurred was the same rule the legislature was trying to prevent. b. Tedla (land) - Rules of Convenience i. If breaking the statute would put them in a better safer condition and is with good cause. c. Special Case of Medical Malpractice i. In medical malpractice cases, expert testimony is an essential requirement in proving the standard of care applicable to the defendant unless res ispa. 6. Duty Requirement a. Malfeasance (General duty, affirmative, creation of risk, harm because of risk) causes harm through your action i. The accused had a duty ii. The accused committed a breach of that duty iii. An injury occurred to you iv. The breach of duty was the proximate cause of your injury b. Nonfeasance (Generally no duty to affirmatively act, no to duty to avoid through actions) causes harm through inaction i. Exceptions: 1. Special relationship a. Cuffy Factors to establish a special relationship with COP  i. Promised to act on behalf of the injured party ii. Knew that not acting could lead to harm iii. There was direct contact between the injured party and the cop’s (gov) agents iv. The injured party relied on the cop’s promise to act 2. Custodial (parental responsibility) 3. $$ 4. Affirmative Undertaking (jx split) a. Begin to rescue = duty b. Begin to rescue, only duty is to leave plaintiff in not a worse position 5. If you caused an injury negligently or not, you have a certain amount of duty to help. c. Misrepresentations - Randi W. v. Muroc i. Due to the misrepresentation of the letters of intent there was negligence on the school’s behalf. Specifically, in one of the letter it stated that Gadams “works well with students” which is a lie. Due to the school district failure to act on the duty of care it was foreseeable that there would be another incident, which there was. d. Psychotherapists’ and Physicians’ Duties to Third Parties - Tarasoff v. Regents of the University of California i. Therapists have the right to warn a third party if the person is individually named and the Doctor, with their experience, could foresee the future danger. e. Implied Statutory Causes of Action - Uhr v. East Greenbush i. Three-Prong Test for a Private Action for Statutes (if plaintiff can sue using statute) 1. Whether the Plaintiff is one of the class for whose particular benefit the statute was enacted; 2. Whether recognition of a private right of action would promote the legislative purpose; and 3. Whether creation of such right would be consistent with the legislative scheme 7. Policy Bases for Invoking No Duty a. “Crushing” Liability - Term used to describe a situation where there are a large number of claims related to a single event. It can also refer to a concern about the potential for liability to become so great that it's unfair to all parties involved. b. Social Host Liability 8. Duty for a landowner a. Carter  i. Invitee - general duty ii. Licensee -protect against known dangers iii. Trespasser - no duty b. Heins i. Invitee - protect against known dangers ii. Licensee - protect against known dangers and should of known iii. Trespasser - no duty c. California i. Invitee - general duty ii. Licensee - general duty iii. Trespasser - general duty for cool people but no duty for flagrant trespassers 9. Negligent Entrustment - A legal doctrine that holds people or entities responsible for the harm caused by someone they gave a dangerous object to 10. (8) Jurisdictional Splits: a. (1) Affirmative undertaking - nonfeasance i. Begin to rescue = duty ii. Begin to rescue, only duty is to leave plaintiff in worse conditions b. (2) Duty for a landowner i. Carter 1. Invitee - general duty 2. Licensee -protect against known dangers 3. Trespasser - no duty ii. Heins 1. Invitee - protect against known dangers 2. Licensee - protect against known dangers and should of known 3. Trespasser - no duty iii. California 1. Invitee - general duty 2. Licensee - general duty 3. Trespasser - general duty for cool people but no duty for flagrant trespassers c. (3) Single Judgment - Causation i. Only able to be compensated once for damages d. (4) Res Ispa - Breach i. Permissible inference is a legal concept that allows a trier of fact to infer the existence of a fact from other existing proof e. (5) Informed Consent - Duty i. What a reasonable patient would want to know; or ii. What a reasonable doctor should have told the patient  f. (6) Therapist Duty to 3rd Parties - Duty i. Duty to give notice to an identifiable patient g. (7) Governmental Immunity - Duty i. A governmental entity is not liable for an injury caused by its employee if the employee is not liable ii. If there is immunity, then there is no duty h. (8) Common Carrier - Breach i. Have a higher standard of care than regular drivers, and must act with the utmost care and diligence to safely transport passengers and property 11. Non Physical Harm a. Emotional Harm i. 1. Defendant intended to cause the plaintiff or recklessly causes the plaintiff severe emotional harm; ii. Intent (Purposeful or knowledge) or recklessness 1. Severe emotional distress 2. Defendant engaged in extreme and outrageous conduct; and 3. Plaintiff actually and justifiably suffered severe emotional distress, i.e., an ordinary, reasonable person would have also suffered severe emotional distress a. Exception under hypersensitive plaintiff rule. i. Defendant must be aware of hypersensitivity 12. Causation “But for” cause - Zuchowicz a. Proximate Cause - Determine the foreseeability of a defendant’s action b. Wagon Mound - A defendant is only liable for the consequences flowing from his negligent act that are foreseeable to a reasonable person at the time of the negligent act. c. Type of injury has to be foreseeable 13. Defenses to Negligence a. Causation i. “But for” ii. Proximate Cause (scope of liability) b. Defenses to Negligence i. Contributory/Comparative Negligence 1. Assumption of the Risk a. Four Requirements i. The plaintiff must have knowledge of the facts constituting a dangerous condition ii. The plaintiff must know the condition is dangerous iii. The plaintiff must appreciate the nature and extent of the danger  iv. The plaintiff must voluntarily expose themselves to the danger b. Express i. Waiver of liability forms ii. (Tunkl Factors) If waiver of liability forms affect the public interest adversely these 6 factors will help with determination; 1. [The agreement] concerns a business of a type generally though suitable for public regulation 2. The party claiming innocent is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public 3. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming with certain established standards 4. As a result of the essential nature of the service, in the economic setting of the transaction the party invoking innocence possesses a decisive advantage of bargaining strength against any member of the public who seeks his services 5. A party with more bargaining power presents the public with a standard contract that avoids liability and doesn't offer an option to pay extra for protection against negligence. 6. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents. iii. The Professional Rescuer Rule 1. A firefighter who gets injured in the process of putting out a negligently started fire will be barred from recovery; Because  a. Assumption of the risk b. Higher compensation in the form of risk premium to professional rescuers c. If on private land they are owed only the lesser duty due to licensees d. They are compensated through tax dollars c. Implied i. Primary (Not a true affirmative defense) ii. Doing an activity that is dangerous like football (complete bar) iii. Secondary (Is a true affirmative defense) iv. Plaintiff encounters dark stairway (not complete bar) v. Limited Duty Rule - (baseball fields adding fences) 1. The level of care sport stadiums have for spectators, typically not liable baseball accidents, unless a. A negligent defect caused the harm; OR b. Hurt as a result of willful or wanton conduct d. West Virginia Approach (most persuasive) i. Assumption is not a complete bar to recovery and only allows a jury to consider the plaintiff’s negligence in assuming the risk. ii. IF the plaintiff’s total negligence exceeds or equals that of the defendant only then is the plaintiff completely barred from recovery e. Rhode Island Approach i. Assumption of risk is a complete bar to recovery f. South Carolina Approach i. Plaintiff is not barred from recovery unless the the degree if fault is greater than the negligence of the defendant 14. Intentional Torts - punitive damages a. Intent i. Purpose or knowledge  ii. Harmful or offensive contact b. Assault i. Reasonable fear, imminent bodily harm c. False Imprisonment i. Limiting someone’s liberty to move from where they don’t want to be ii. Moral pressure is enough iii. Threat or physical locking of the door is sufficient d. Battery i. Intent (Purpose or knowledge) 1. Harmful or offensive contact e. Merger Test i. Test to determine if intangible property can be considered “property” for the purposes of a conversion claim f. Conversion- more severe (when a person uses or alters a piece of personal property belonging to someone else without the owner's consent) i. Intent (purpose or knowledge) 1. Exercise possession and deprive rightful owner of possessing interest ii. Ex. Conversion is a substantial or permanent impairment of the owner’s right to use and enjoy their chattel. iii. I rip your jacket in half = conversion. g. Trespass to Chattel - less severe (Doesn't require that damage be done to the full value of property with complete loss of use.) i. Intent (purpose or knowledge) 1. Exercise possession and deprive rightful owner of possessing interest ii. Ex. Trespass to chattel (“goods”) = temporary impairment or possession that deprives the owner of their use and enjoyment of the chattel. 1. I rip a button out of your jacket = trespass to chattel. iii. If the defendant had lawfully obtained the property in the first instance without knowledge of the plaintiff’s ownership, the plaintiff must show both that they demanded the property’s return and the defendant refused the demand 15. Intentional Tort Defenses a. Consent i. Scope of the Consent 1. Incapacitated 2. Duress 3. Fraud b. Self-defense  i. Reasonable belief you are being attacked; Unless 1. They used excessive or unreasonable force c. Emergency Doctrine i. Precludes liability when the defendant such as a surgeon in an emergency room, had “no reason to believe that the plaintiff would not have consented, if he or she had the opportunity to do so, and the risk to plaintiff’s life or health is in so much danger that the plaintiff can not wait to determine if the plaintiff does consent 16. Statute of Limitations a. SOL starts upon when it first occurs typically when the victim is injure; EXCEPT i. When the victim is child ii. Defendant fraudulently conceals facts that would reveal the existence of the claim iii. In the most traumatic injury the time starts when the victim is well enough to file b. Diseases/Cancer i. Start when there are observable signs or symptoms or is medically identifiable 17. Strict Liability (if you can’t prove, move to negligence) a. Exists when a defendant is liable for committing an action, regardless of what his/her intent or mental state was when committing the action. b. Land i. If a person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of the escape c. In determining whether an activity is “abnormally dangerous,” 6 Factors; i. Existence of high degree of risk of some harm to the person, land or chattels of others; ii. Likelihood that the harm that results from it will be great iii. Inability to eliminate the risk by the exercise of reasonable care iv. Extent to which the activity is not a matter of common usage v. Inappropriateness of the activity to the place where it is carried on; and vi. Extent to which its value to community is outweighed by its dangerous attributes d. Common Carriers i. Not subject to strict liability for the carriage of materials that make the transportation of them abnormally dangerous, because a common carrier cannot refuse the service to a shipper of a lawful commodity  ii. Shipping hazardous materials is not considered an abnormally dangerous activity. e. Enterprise Liability i. An enterprise has superior risk-bearing capacity compared to victims who would otherwise bear the costs of accidents; and ii. An enterprise is generally better placed to respond to the safety incentives created by liability rules than is the party suffering harm 18. Joint and Several Liability - Plaintiff can collect so long as their negligence is not greater than defendants $100,000 Negligence Drunk Texting Eating Speeding Parties A v. B C D Responsible 40% 30% 10% 20% Amount $40,000 $30,000 $10,000 $20,000 If Insolvent $100,000-20,000 D CANT PAY = $80,000 Negligence Drunk Texting Eating Speeding Parties A v. B C D Responsible 40% 30% 10% 20% Amount $40,000 $30,000 $10,000 $20,000 40/80(20,000) 30/80(20,000) 10/80(20,000) —---------------- 19. Private Nuisance a. Intentional and Unreasonable i. Whether or Not Unreasonable 826(a) 1. Gravity of utility harm outweighs conduct involved 2. Forces out of activity 3. Purpose of the conduct invading a. Ex. If the noise could be turned down, then you can evade the conduct b. Unintentional and Tortious 226 (b) i. Harm is serious and continuation is not feasible ii. Is feasible to compensate 20. Damages a. Trial Judge i. Has the duty to agree or reduce amount, denial of a new trial shows he agrees with the amount b. App Judge i. Can only interfere if the amount seems prejudicial 21. Permissible Inference a. A permissive inference is a suggestion to the jury, rather than a requirement.