#17619 - Torts Outline - Torts

Torts

Main Outline

Table of Contents

Chapter I: Introduction to Torts- What is a Tort? 5

Chapter II: Negligence and Duties 5

The Injury Element: 5

Alienation of Affections 5

Mental and Emotional Upset 5

Duty 6

General (Unqualified Duty) 7

Qualified Duties of Care 7

Affirmative Duties to Rescue and Protect 7

Premises Liability 8

Pure Economic Loss 10

Duties Arising from Special Relationships 10

Ch. III: Breach Element 11

Differing Standards of Care 12

Defining the Person of Ordinary Prudence 12

Tender Years Doctrine- standard children for under X age 12

Industry and Professional Custom 13

Reasonableness, Balancing, and Cost-Benefit Analysis 14

Proving Breach: Res Ipsa Loquitur 14

Negligence Per Se 15

Chapter IV: Causation 16

Actual Causation 16

But for causation. 17

Cause in Fact- Multiple Sufficient Causes 17

Cause in Fact- Indeterminate Causes- Alternative Liability 18

Cause in Fact- Indeterminate Cause- Market Share Liability 18

Indeterminate Causes- Loss of Chance of Survival- 19

Proof of Factual Causation: Expert Testimony 20

Proximate Cause 20

Intervening and superseding causes 21

General Rule 21

Substantial Factor Exception 22

Rescue Exception 23

Crux of it all: Foreseeability 23

What needs to be foreseeable? 23

Type of injury, not the extent: Thin Skull Plaintiff 23

Foreseeability of the conduct: 24

Foreseeable plaintiff?? NO: Palsgraf 24

Unforeseeable manner of harm: 24

Proximate Cause: Emotional Distress 25

Dillion Rule. 25

Ch. V. Defenses 26

Contributory Negligence- Minority/Old Rule 27

Assumption of Risk 28

Comparative Negligence 30

Governmental Immunity 30

Charitable Immunity 32

Family Immunity 32

Ch. VI. Damages 33

Compensatory Damages 33

Punitive Damages 35

Joint and Several Liability 37

Ch. VII: Strict Liability 38

Maintaining Custody of Animals 40

Abnormally Dangerous Activities 40

Ch. VIII: Trespass and Nuisance 41

Trespass 41

Nuisance 42

Ch. IX: Intentional Torts 44

Battery 45

Elements of a Prima Facie Battery Case : 45

Standard Defenses to Battery and Assault (these work for all intentional torts) 47

Consent 47

Self-Defense 48

Defense and Recapture of Property 49

Intentional Infliction of Emotional Distress 49

1. Tort: special kind of wrong; law has identified this action as one that entitles the victim to ask a court to assist her in her effort to set things right between her and the person who wronged her

2. Elements of Prima Facie Case: Injury, Duty, Breach of Duty, Causation

3. Tort law compensates physical harm and can compensate loss of wealth and emotional distress (not spiritual loss, loss of opportunity or privacy)

1. Historically held when a spouse is deprived in rights to the “services and companionship” of other spouse, he then has a case against whoever has interfered

2. Arguments for

   1. Cannot take away offended spouse’s only legal means to seek redress for the wrongful conduct of a third party who destroys marriage (Bland v Hill)

   2. When spouse is injured you can claim loss of consortium, so why couldn’t you sue for this? (Helsel v Noellsch)

3. Arguments against

   1. Evolution of this action- began with women as property, compensation was to buy a new wife, later was analogized to servants ; women became less property but then for some reason groups started promoting this as preserving marriages (Dickinson’s concurrence in Fitch)

4. Recovery for mental and emotional upset from physical injury is not controversial, but mental and emotional upset as a result of defendant’s negligence but with no physical injury is more controversial

   1. Pros- it is a real harm, it is no more difficult to measure than other harms, every right should have a remedy

   2. Cons- we all suffer emotional harm all the time, difficult to measure/easy to fake; flood the courts with litigation)

5. Impact Rule- no recovery for fright without impact (Mitchell v Rochester)

6. Zone of Danger- You must be in the “zone of danger”- where you fear for your own safety, to recover. Conclusion reached by balancing social interests- if you are out of the zone of danger, burden is too heavy to say others have a duty. (Waube v Warrington)

   1. Rest. 3d- 46: actor negligently causing ED is liable if conduct “an actor whose negligent conduct “(a) places the other in immediate danger of bodily harm and the emotional disturbance results”

7. In all cases w/o impact- need to show physical manifestation of emotional distress significant enough that it is prevents you from living a normal life (Hamilton v Nestor, Palmer v Nan King Restaurant)

8. Dillon v Legg - Zone of danger improperly restricted to those exposed to physical harm. Is extended to those exposed to emotional harm.

   1. Court will evaluate these three factors to indicate whether the accident and harm was reasonably foreseeable

      1. Was the plaintiff near the scene or far away?

      2. Did the shock result from the contemporaneous sensory observance of the accident or just hearing about it later?

      3. Were plaintiff and victim closely related?

   2. Rest (3d) 47- Dillon found in Rest.

9. Thing v La Chusa (CA): Clarifies Dillon saying that in the absence of impact to plaintiff, damages for ED recoverable only if the plaintiff:

   1. Is closely related to the injury victim

   2. Has a sensory experience of witnessing the event

   3. And as a result suffers emotional distress beyond what would be expected by a disinterested witness

10. Dilon wanted a flexible rule based on foreseeability and Thing rigified it (Foreseeability doesn’t really matter) .

11. NOW: Different states have done different things but at least by and large zone of danger is rejected.

    1. No Recovery at all - 0

    2. Impact test- only a handful of states still have

    3. Zone of danger- a dozen or so states still have this

    4. Dillon- plurality of states follow this

    5. Thing- increasing number of states follow this

12. Direct Victim vs Bystander - Burgess v Superior Court: if you’re the direct victim, you don’t need to show any of the Dillon/Thing criteria (child injured during birth- mother is direct victim not bystander)

4. The Evolution of Duty Rules

   1. Winterbottom v Wright (1842)- Here, the only duties that arose were ones that arose from contractual privity (signed a contract) (ENG)

   2. Thomas v Winchester (1852)- If the natural consequence of something is great bodily harm or death, you have a duty to make sure this natural consequence does not happen.

   3. NY Cases (1870-1910) did not give a clear precedent until MacPherson

   4. MacPherson v Buick Motor Co - When the danger is foreseen, there is a duty to avoid the injury. Manufacturer owes a duty to anyone whom it can reasonably foresee being injured by its carelessly made product.

      1. Questions:

         1. what is foreseeable?: Mussivand v David

         2. No duty to control the conduct of a third party unless there’s a special relationship (Andrews v. Fullington Trailways LLC)

5. General duty is to take ordinary care to avoid causing physical harm to foreseeable victims

6. Nonfeasance vs. Misfeasance

   1. Cases can be “nonfeasance” (see someone drowning and keep walking) or misfeasance (boat owner invites a friend on boat, friend is pinned underwater after a careless turn and drowns)

   2. General duty ONLY applies to misfeasance.

   3. The absence of duty applies to nonfeasance.

      1. To win on negligence claim involving nonfeasance, plaintiff must establish special circumstances (a qualified duty of care)

7. Outside of general duty, courts look at three categories of “qualified” care.

1. Typically, no affirmative duty to rescue or protect

   1. No duty to help a stranger in need (Tucker v Burt)

   2. No duty to prevent someone from getting in harm’s way (Osterlind v Hill)

   3. No duty to prevent risks inherent in an activity from being actualized (Mayall v USA Water Polo Inc.)

2. Exceptions to rule of “no affirmative duty to rescue or protect”

   1. If the defendant has caused imminent peril to the plaintiff (even if not tortious)- they must exercise reasonable care to prevent or minimize the harm (Rest 2d, 321-322)

   2. Special Relationships (businesses, premises, school-student, employee-employer, hospital-patient)

   3. Voluntary Undertakings- once a rescue is voluntarily undertaken, rescuer owes a duty to the victim to perform the rescue with reasonable care

   4. * For these “exceptions” duty is always to make reasonable efforts to rescue, not put own life in peril

   5. A business who invites members to enter into their facilities has a duty to provide reasonable assistance to those who entier even if they are not responsible for the original condition (Baker v Fenneman & Brown Properties)

   6. Rest. 314A- Special Relations Giving Rise to Duty to Aid or Protect (list of exceptions: common carrier, innkeeper, possessor of land who holds it open to the public, one who is required to take custody of another) - not exclusive

3. Good Samaritan statutes- protect those who help an injured person in an emergency situation from liability from ordinary negligence (and in some cases, gross negligence); sometimes limited to off-duty professions. Can be interpreted narrowly (what is an emergency?) (Buck v Greyhound Lines)

4. Process (taken from Leffler)

   1. Step One: Figure out the status of the individual

      1. Invitee- is invited

      2. Licensee- enters for own convenience or pleasure; is permitted to do so

      3. Trespasser- enters without any enticement or inducement

   2. Step Two: Based on this, what is the duty?

      1. Invitee: duty to take care to provide reasonably safe...