8/9/2019 Torts Checklist - TLS

http://slidepdf.com/reader/full/torts-checklist-tls 1/2

BATTERY

1) Intent harmful or offensive contact

2) Harmful or offensive contact results

► RST or White v. U. of Id. approach?

• Eggshell Plaintiff Rule (Vosburg )TRESPASS

• To Land: Harm is not required

• To Chattels: Harm is requiredNECESSITY

• Necessity gives privilege to use land• Conditional Privilege - liable for harm

THE REASONABLE PERSON

• Objective standard. Ordinary person

• Lower standard for children

◦ But, not when doing adult activities

• Insanity a defense if 

◦ Lack of control or understanding of duty, AND ◦ Lack of forewarning

• Disability lowers standard to reasonable

 person with that disability ( Fletcher )CALCULUS OF RISK 

• Burden < Probability x SeverityCUSTOM

• Relevant & persuasive, not dispositive

• Departure from custom can show neg.◦ Same for Δ’s private rules of conduct

• Dispositive in medical malpractice

• Doctors: Duty to inform Π of risks if 

knowledge would affect his decisionSTATUTES/REGULATIONS

• Negligence per se if 

◦ Law designed to protect against type

of harm that occurred, AND

◦ Π in class of people protected by law

• Defenses: Necessity and Capacity• Two ways of predicting result

◦ Legislative history, or does violation

of law increase risk of harm to Π

• Courts liberal in interpreting purpose

• Compliance with law relevant, not disp.

RES IPSA LOQUITUR 

1) Event usually doesn’t occur w/o neg.

2) Cause within exclusive control of Δ3) Not due to voluntary act of Π

• Shifts burden to Δ for circum. evidence •

“Smokes out” evidence w/ multiple Δs

CONTRIBUTORY NEGLIGENCE• Affirmative defense, burden on Δ

• Excuse for private necessity

• Harm must be within the risk (causal)COMPARATIVE NEGLIGENCE

• Comp. negligence, NOT causation• Pure or Modified

ASSUMPTION OF RISK 

• Primary: Δ breached no duty, not neg.

• Secondary: Unreasonable, Π is ContN

• Waiver: Tunkl factors (see reverse)

• Reasonable assumption: fork fork!

DUTY TO RESCUE

• No duty to rescue, unless law imposes,

special relationship, or if Δ caused the

harm (even if non-negligently).SPECIAL RELATIONSHIPS

• Generally, no duty to control 3rd party

• Exception: Exclusive control of Δ, e.g.

landlord ( Kline). Must be foreseeable

• Exception: Necessary to avert danger ◦ Target IDed by 3rd party (Tarasoff )

◦ Δ facilitated commission of crime

◦ Δ breached promise to warn Π ( Long )LANDOWNER LIABILITY

• Traditional Categories

◦ Invitees: remove traps

◦ Licensees: warn of traps

◦ Trespassers: don’t set traps

• Rowland Factors (see reverse)

• Attractive Nuisances (see reverse)

CAUSE-IN-FACT

• “But for” Δ’s conduct, what happens?

• Burden shifts to Δ if lack of proof dueto Δ’s negligence ( Lone Palm Hotel )

• Increased chance of harm - Δ liable if:

◦ Act wrong b/c it ↑ chance of harm

◦ AND, that type of harm occurs• Joint Liability - All Δs fully liable if:

◦ Joint tortfeasors

◦ 2 independant tortfeasors, harm indiv

◦ 2 subsequent torts, harm indivisible

• Lost chance of survival ( Herskovitz )

• Alternative Liability (Summers)

• Market Share Liability (Sindell )

PROXIMATE CAUSE

• Three views1) Harm within the risk (fseeability)

2) Causal connection

3) Policy judgment (Andrews)

• For proximate cause

1) Must increase risk of harm, AND

2) Harm must be within the risk 

This test is sufficient but not necessary

• Intervention of 3rd parties

◦ Liability only if ordinary and natural◦ 3rd party act must be foreseeable

◦ Usually for neg., not for int. torts

• Foreseeability of rescue, Π’s reaction

• Four Categories of Unforeseeability◦ Extent of harm: Δ liable (eggshell Π)

◦ Manner of harm: Δ liable ( Nugent )

· Waters must become placid again

◦ Plaintiff: Δ not liable ( Palsgraf )◦ Type of harm: Fork! Factors

· Directness of harm

· Degree to which it resembles an

unforeseeable type or extent

· If Δ’s negligence caused other harm

for which he is liable, thereby not

totally clearing him from liability

EMOTIONAL HARM

• Impact Rule: Physical harm required

• Zone-of-Danger Rule: Π must be in

zone of danger of being harmed by Δ

• Closely Related Bystander ( Dillon)

1) Π located near accident (proximity)

2) Π witnessed accident (visibility)

3) Π and victim closely related

ECONOMIC HARM

• No liability except spec. relationship,

 public nuisance, intentional harm

• Each piece of harm must be fseeablePAIN AND SUFFERRING

• Cognitive awareness required?

• Goals, commensurability, etc.PUNITIVE DAMAGES

• Malicious intent necessary

• BMW v. Gore – Three Guideposts

1) Reprehensibility of Δ’s conduct2) Disparity b/w harm & pun. award

3) Diff b/w award & civil penalties

• Multiplier can’t exceed single digit

STRICT LIABILITY

• Key: Uncommonness, dangerousness

• Natural vs. Unnatural, acts of God

• Harm must also be foreseeableABNORMALLY D. ACTIVITIES

• See outline for RST’s factors

• Social utility as a consideration?VICARIOUS LIABILITY

• Int. torts: “characteristic to workplace”

• Scope of Employ: Detour vs. Frolic

• Independent Contractors

◦ Apparent and Implied Authority

PRODUCTS LIABILITY

• Manufacturing Defects: Π must show

(1) It departed from intended design

(2) It caused injury

• Failure to Warn: Foreseeable risks

could have been prevented by warning

Design Defects

• Consumer Expectations Test: Product

defective if it fails to perform as safelyas a consumer in Π’s position would

reasonable expect it to

◦ Allows Open & Obvious exception

• Risk-Utility Test: Product defective if  benefits of design outweighed by costs

◦ Must Π show reasonable alternative?

◦ Halliday: Test not used for gun

► Which test will court use? (or both?)• Foreseeability of harm, not intended

use, is what matters (Volkswagen)

• Wade’s Unreasonable Dangerous

Factors (see reverse)

• RST Comments (see reverse)

Federal Preemption

• Nature of duty: Floor vs. ceiling

8/9/2019 Torts Checklist - TLS

http://slidepdf.com/reader/full/torts-checklist-tls 2/2

TERRY: 5 FACTORS OF NEGLIGENCE

1) The magnitude of the risk.

2) The value or importance of that which is exposed to therisk, which is what law seeks to protect

3) The value of what the person taking the risk is pursuing

4) The probability that it will be attained by the conduct

which involves risk (utility of the risk)

5) The probability that it would not have been attained

without the risk (the necessity of the risk)

RST § 339: ATTRACTIVE NUISANCE

Landowner liable for harm caused by artificial conditions if:

• Owner knows or has reason to know children are likely totrespass, AND,

• Owner knows or has reason to know condition involves

unreasonable risk of harm, AND

• Children, because of their age, won’t realize the risk, AND

• Burden of eliminating danger slight compared to risk to

children, AND

• Owner fails to exercise reasonable care to eliminate danger 

or protect children Note: Most courts do not apply this to natural conditions

ROWLAND FACTORS

• Foreseeability of harm (breach)

• Degree of certainty of harm (damages) (causation)

• Closeness of connection b/w Δ’s conduct and Π’s harm

• Moral blame of Δ’s conduct (fairness)

• Prevention of future harm (deterrence)• Consequences to Δ and community by imposing duty

• Availability and cost of insurance (compensation)

FACTORS FOR MARKET SHARE LIABILITY

• All named Δs are potential tortfeasor 

• Harmful products identical, share same qualities (fungible)

• Π unable to identify particular Δ who caused her harm

through no fault of her own• Substantially all manufacturers who created product during

relevant time are named as Δs

 BMW v. Gore: Degree of Reprehensibility of Δ’s Conduct 

• Harm is physical as opposed to economic

• Conduct evidenced indifference or reckless disregard for 

human health and safety

• Target of conduct has financial vulnerability

• Conduct involved repeated actions, not an isolated incident

• Conduct was the result of intentional malice, trickery, or deceit, instead of just a mere accident

§ 520: ABNORMALLY DANGEROUS ACTIVITIESa) Existence of a high degree of risk of some harm to

another person or his property

 b) Likelihood that the harm that results will be great

c) Inability to eliminate the risk by the exercise of 

reasonable cared) Extent to which activity is not a matter of common usage

e) Inappropriateness of the activity to the place where it was

carried on

f) Extent to which its value to the community is outweighed

 by its dangerous attributes

► RTT scraps social utility (f) as a consideration.

RST COMMENTS ON PRODUDCTS LIABILITY

f) Seller must be in the business of selling. Does not apply

to the occasional seller g) Must be in defective condition when it reaches buyer, not

 by subsequent acts

h) Seller not liable if injury results from abnormal handling

i) Product must be unreasonably dangerous . Must be

dangerous to an extent “beyond that which would be

contemplated by the ordinary consumer who purchases it”

 j) Seller must give warnings for dangers that are not generallyknown and recognized. If warning given, and product is

safe if followed, it isn’t unreasonably dangerous

k) If product is unavoidably unsafe, but prevents a greater harm (e.g. a rabies vaccine), it is not defective or 

unreasonably dangerous. Seller not liable

n) ContN of Π is not a defense, but if Π sees danger and

unreasonably continues use, this is an assumption of risk,

and is a defense. If Π discovers a defect and continues

unreasonably to use the product and is injured, he’s barred

from recovery

◦ Note: Although RST took no position on bystander’srecovery, law now allows it

FACTORS IN RISK-UTILITY TEST

• Gravity of danger posed by challenged design

• Likelihood such danger would occur 

• Mechanical feasibility of a safer alternative design

• Financial cost of an improved design

• Adverse consequences to product and consumer that wouldresult from an alternative design

  Unreasonably

Wade’s Factors in Determining if Product is Dangerous

• Usefulness and desirability of the product – utility to user and

 public as a whole

• Safety aspects of the product – likelihood it will cause injury,

 probable seriousness of injury

• Availability of a substitute product that would meet the sameneeds and not be unsafe

• Ability to eliminate unsafe trait without impairing usefulnessor making it too expensive

• User’s ability to avoid danger by exercise of care in use of 

the product

• User’s anticipated awareness of dangers inherent in the

 product (general public knowledge)

• Feasibility of manufacturer spreading loss by setting price or 

carrying insurance

TUNKL FACTORS (for voiding liability waivers)

• Business generally though suitable for public regulation

• Importance of Δ’s service to the public• Δ holds itself out as willing to provide service to any member 

of public who seeks it

• Essential nature of services gives Δ great bargaining strength

• Public faced with adhesion contract; cannot pay reasonable

fees for negligence protection• Purchaser placed under Δ’s control, subject to risk and

carelessness by Δ