Torts Outline Robertson 2011

Tort Law: Aims, Approaches & Processes Justice & Policy Compensation Deterrence Looking for Facts, Rules & Reasons + Trial Procedures

Intentional Torts: Fault Intent Harm Cause

Intent: Acts with intent if: o Acts with purpose of producing consequence o Knowing with substantial certainty harm/offense will occur. Recklessness: o Knew or should have known of substantial risk of harm o Minimal precautions to reduce/minimize risk of harm not taken. o MUST be obviousness of danger to a reasonable person Battery: o Intent to harm/offend or create imminent apprehension of such harm/offense o Contact occurs (if offense only, must offend a reasonable person) o Dual Intent States: Intent to act + Intent to Cause Harm/Offense o Single Intent States: Intent to Contact (not necessarily to harm) Transferred Intent: Liable to 3rd parties if Intent was present. Assault: o Same as Battery without contact (imminent apprehension actually occurs) o Must be aware of the assault before the act of assault ends. o Conditional is still assault (Ill kick your ass if you dont give me that ice cream) False Imprisonment o Acts intending to confine o AND Directly or indirectly results in confinement o AND other is conscious or harmed by confinement o MUST be complete (no obvious, reasonable means of escape) o IF no intent, not liable if no harm occurs and transitory nature o If unaware and unharmed, no liability even if done with intent Torts to Property Civil Rights Violations Emotional Harm Intentional Infliction of Emotional Distress o Extreme and outrageous conduct and severe emotional harm

o Consider: relationship of parties, Abused Authority, knowledge of especial vulnerability, motivation, repeated or prolonged. Defenses to Intentional Torts

Negligent Torts: liability for negligence is for unreasonable risks created by

not for reasonable risks or those that were unforseeable Prima Facie Case for Negligence Duty Negligence and Fault Institutions and Elements of Negligence Prudent Person Standard Standards of Duty Negligence and Breach of Duty Assessing Reasonable Care Assessing Foreseeable Risks Multiple negligent parties Proving and Evaluating Conduct Res Ipsa Loquitur Harm & Causation in Fact Actual Harm Cause in Fact Scope of Risk (scope of liability) or Proximate Cause Element Scope of Risk: But For Causation Harm, the risk of which was, increased by actions. Reasonable foreseeability (related to B<PL formula) Assessing Scope of Risk: But for test is harm outside the scope of risk? (not normally associated with the negligent behavior?) Thin Skull rule, still liable for the full extent of harm

Defenses:
Contributory/Comparative Fault Contributory Negligence Comparative Fault Rules Policy or Justice Exceptions to Contributory Negligence Bar Assumption of the Risk Contractual or express assumption of the risk Implied assumption of the risk

Defenses not on the merits: Statutes of limitation Preemption and Compliance With Statute

Limiting or Expanding the Duty of Care:

Special relationships Carriers, Host-Drivers Landowners duties to Trespassers: Licensees: Invitees: Children: Firefighters Rule: Reasonable Care rule for Landowners Recreational Uses Lessors Medical Professionals Family Members Charities Governmental Entities and Officers Traditional Immunities Federal Tort Claims Act Immunities under State law Officers State & Municipal Liability 1983

Relationships or absence of; Nonaction, Contract, Protection from others:

Nonfeasance No Duty Exceptions & Qualifications Contract and Duty Nonperformance of Promises Promises to a third person Action as a Promise or Undertaking Duty to Protect from 3rd Persons relationship with relationship with Dangerous Persons

Limiting Duties to Protect against Special Types of Harm:

Emotional Harm Negligent Infliction of Distress or Emotional Harm Fright or shock from risks of physical harm Duties to Protect emotional well-being independent of physical risks Toxic Exposures Fear of Future Harm Limits on Recovery

Strict Liability for Physical Harms:

Vicarious Liability Respondeat Superior & Scope of Employment Employers who are not masters Other forms of vicarious responsibility Strict Liability Today Defective Products Liability Rationales Establishing a prima facie case Defects Manufacturing Design Warning or Information Special Issues of Proof Damages Alternatives to Tort Law Motion to Dismiss: Failure to make a claim (law) sufficiently Motion for Summary Judgment (after discovery) based on lack of critical evidence and material facts. Viewed in light most favorable to the non-movant Motion for Directed Verdict Same Demands as MSJ, can be requested after of trial. MJNOV Motion for Judgment Notwithstanding the Verdict After conclusion of trial & verdict by jury.