Torts

• Negligence


  • Requires (1) duty, (2) breach, (3) cause, (4) scope, and (5) damages
• Duty


  Need to mention there is a jurisdictional split and then do all jurisdictional; CA does general duty
• General Duty


  • Plaintiff who are foreseeably exposed to physical risks arising from Defendant's conduct
• Limited Duty: Status Trichotomy


  • Invitee
  • Licensee
  • Trespasser
• Invitee


  Enters with the owner's knowledge (i.e., invited) AND for the mutual benefit of both.
• Licensee


  Enters with the owner's consent for the licensee's convenience or to conduct business with someone other than the plaintiff.
• Trespasser


  Enters without invitation or permission.
• Limited Duty: Status Trichotomy triggered when the harm was caused by (1) a defect on the land (2) instrumentality/activity on the land
• Limited Duties: to Act Affirmatively to prevent Harm


  • duty to assist/rescue/act
  • protect against a 3rd party
  • protect against criminal conduct
  • negligent entrustment
  • public duty doctrine
• (LD): Protect Against Criminal Conduct


  Duty to act if considering the circumstances surrounding an event including the nature, condition, and location of the land as well as prior similar incidents to determine whether a criminal act was foreseeable
• (LD): Protect Against 3rd Party


  Duty to act if: D has a special relationship with a 3rd party who cause the harm, P/Victim is reasonably identifiable to the D
• (LD): Negligent Entrustment Rule


  • (1) Defendant supplied 3rd party with the chattel in question for the use of the 3rd party (2) Supplier knew or should have known that the third party would use the chattel in a manner involving unreasonable risk of harm (3) Harm resulted from the use of chattel
• (LD): Public Duty Doctrine


  • (1) Government assumed a duty through promise or action (2) Government knew inaction would lead to harm, (3) Direct contact between Plaintiff and Government, and (4) Plaintiff relied on the promise, and it was casually related to the harm Plaintiff suffered
• Zones of Danger


  • person subject to physical risk: impact rule -- P was physically impacted by D's actions (even the slightest of touches) and suffered emotional distress
  • bystander must be closely related to the injury victim, bystander emotional injury caused by contemporaneous sensory perception of the event or conduct that caused the injury or by arriving on the scene soon after and before substantial change has occurred in the victim's or location, injury to the victim must be substantial resulting in either death or physical injury and injury to the bystander's emotional distress was serious
  • if plaintiff is the foreseeable one of physical danger, escaped without physical injury and plaintiff's distress arose from their fear of their own safety
• Bodily Remains and Death Notifications


  the harm suffered is the loss/mixing up of bodily remains and erroneous notification, you breach your duty on bodily remains and death notification if bodily remains (loss of a body, switching or mixing remains give rise to a duty for immediate relatives) or death notification (erroneous notification of a loved one's death gives rise to a duty)

  
• Consortium


  provides recovery for the loss of society and companionship, RULE: spouses (and a person with a spousal equivalent relationship) can bring a loss of consortium claim against the D, if their spouses physical harm claim succeeds
• Pure Economic Loss


  applies when you lose economic interest like a shop having to close bc a car crashed into it
• Breach


  Reasonable Care Standard: Standard of Care: Reasonably Prudent Person (RPP) under the same or similar circumstances. NOT APPLICABLE FOR other identities e.g., race, class, gender, mental disabilities. Exceptions: physical differences & children
• Direct Negligence


  • (1) Employee was acting under the "scope of employment" and (2) The company had direction and control over the employees
• Vicarious Liability


  • (1) It is of the kind she is employed to perform (2) It occurs substantially within the authorized time and space limits it is actuated, at least in part, (3) by a purpose to serve the employer
• Direction and Control


  • (1) Extent of control which the employer may exercise over details of the work (2) whether the one is employed is engaged in a distinct occupation/business (3) if the work is usually done under the direction of the employer or by a specialist w/o supervision (4) the skill required in the occupation (5) whether the employer or the one employed supply the instrumentalities, tools, and the place of work (6) the length of time for which the one employed is engaged (7) the method of payment whether by the time or by the job (8) whether the work is part of regular business of the employer (9) whether the parties believe they are creating an agency relationship (10) whether the employer is or is not in business
• Sudden Emergency Rule


  (1) Unforeseen combination of circumstances that call for immediate action (less than 10 to 15 seconds); (2) That is perplexing contingency or complication of circumstances; (3) Is sudden or unexpected occasion for action, exigency, pressing necessity. Must not be emergency of one's own making
• Children Exception Rule


  Reasonably prudent child of similar age, intelligence, experience, and maturity under the same or similar circumstances. Exception: adult standard of care applies when the child is engaged in adult or inherently dangerous activity
• Learned Hand Formula


  • (1) Likelihood of harm (P), and (2) Potential seriousness of the harm(L) (3)Against the burden of taking adequate precautions to prevent the harm (B)

  
• Safety Factors


  • Safer alternative (doesn't create another risk)
  • Feasible (possible/feasible to undertake the precaution)
  • Effective (if taken, harm would not have occurred)
  • Cost (not prohibitively expensive)
  • Utility (precaution would be beneficial)
• Negligence Per Se


  Defendant violated statute w/o an excuse (prima facie case for breach) and statute must be relevant to the resulting harm: Plaintiff was a member of the class statute meant to protect, Harm suffered. EXCEPTIONS: (negligence per se doesn't apply to kids) Incapacity, No knowledge nor should have known of noncompliance, Inability after reasonable diligence to comply, Emergency not of defendant's own making, Compliance would be more dangerous, Reasonableness under all circumstances (minority not relevant)

  
• Constructive Notice


  Establish the passage of time to show that Defendant should have known to remedy the hazard; rule of thumb generally an hr. e.g., smooshed grapes in a store
• Res Ipsa Loquitur (RIL)


  Circumstantial Evidence to Prove Breach: Case where harm doesn't usually happen w/o negligence, Defendant had right of control of instrumentality of harm, Injured party cannot be responsible (usually unaware of how injury occurred)

  
• Professional Malpractice Standard of Care


  Average member of the profession does, is what Defendant should have done – custom is determinative here (1) Someone who knows from their own practice, exposure, etc. How the issue, procedure, etc. Is dealt with (2) Traditionally same or similar local, but there is a move to national standard (3) Has the same resources (4) Same school of thought or practice

  
• Professional Informed Consent


  Disclose what other doctors of ordinary skill, knowledge would disclose (expert required)
• Patient Informed Consent


  What would a reasonable patient want to know (gen. no expert), Objective standard. Subjective Standard Exception: If plaintiff tells Defendant of a special concern, then it becomes material
• Cause


  Substantial Factor Test: Defendant's Breach was a substantial factor in causing the Plaintiff's harm. But For Causation: But for the Defendant's [Breach] the harm would not have occurred
• Apportionment of Damages


  we can identify (or apportion) the harm caused by each of the defendants, e.g., defendant one hits P's arm and defendant two hits P's leg. Def. 1 liable for the arm, Def. 2 Liable for the leg

  
• Joint & Several Liability


  Two or more cause indivisible harm and/or we cannot identify the harm between the defendants. E.g., Def. one and Def. Two both hit P's arm simultaneously, Def. one and two are jointly and severally liable for the arm
• Scope


  Scope is satisfied if the defendant's negligence created a reasonably foreseeable risk of general kind of harm that plaintiff suffered (type of harm), the exact way or precise manner the harm occurs does not matter for scope

  
• Foresight Test


  to satisfy scope, there must be foreseeable plaintiff, harm, and foreseeable risk of intervening forces: (1) is there an arguably unforeseen plaintiff?: the class of persons (including the plaintiff) must be within the scope of risks created by the conduct (2) are there arguably unforeseen consequences?: the result must be within the scope of risk created by the negligent conduct (3) is there an arguably intervening force?: the intervening act a foreseeable risk of the negligent conduct

  
• Intervening Act Rule


  Intervening act must be a foreseeable risk of the Defendant's negligence. Some jurisdictions will shift liability of after weighing factors it finds: 3rd party conduct is so egregious (gross negligence, reckless, or intentional) that the court should conclude that pa
• Consequences


  The result must be within the scope of risk created by the negligent conduct
• Intervening force


  The intervening act must be a foreseeable risk of the negligent conduct
• Unforeseeable consequences


  The scope is satisfied if the defendant's negligence created a reasonable foreseeable risk of the general kind of harm that the plaintiff suffered, the exact way or precise manner the harm occurs does not matter for scope