Torts Attack outline PDF

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Loyola University Chicago School of Law Torts Attack outline 2021...

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Negligence: Duty: GDP: all persons have a duty to exercise reasonable care to avoid foreseeable risks of physical harm. LIMITED DUTY RULES: 1. Owners and Occupiers of Land: Depends on Status of ∆: a. Trespassers: Duty not to willfully/wantonly inj. or to injure through gross neg. b. Licensees: (social guests) Duty not to willfully/wantonly inj. or to injure through gross neg. & to warn of known dangers c. Invitees: (mutual/economic benefit) duty of reasonable care w/ respect to known dangerous conditions and those LO should know about 2. No Duty to Assist or Rescue: EXCEPTIONS a. Special Relationship b. Voluntary Assumption of duty c. Innocent Prior Conduct d. Reliance on Gratuitous Promise e. Intentional Prevention of Aid by Others f. Statute g. Contractual Relationship 3. No Duty to Protect from 3rd Persons (especially when victim is unidentifiable): EXCEPTIONS a. Special Relationship: can create a duty of reasonable care to prevent foreseeable harm to 3rd parties (therapist-patient) b. Outpatient Setting: duty to protect a 3rd party from foreseeable harm in an outpatient setting 4. No Duty to Protect Against Criminal Conduct: EXCEPTIONS a. Landowner Duty: LO has a duty to protect an invitee from foreseeable criminal conduct i. Specific Harm Test ii. PSI Test iii. Totality of Circumstances Test iv. Balancing Test 5. Regarding Emotional Harm: a. Physical Impact Rule: no duty to prevent emotional harm in absence of physical harm b. Zone of Danger I: can recover for emotional distress if in the zone of danger and has fear for their own physical well-being c. Zone of Danger II: can recover for emotional harm if in the zone of danger and sees harm occur to third party d. Clohessy and Thing: reasonable foreseeability subject to close relationship, contemporaneous sensory perception, substantial injury, and serious emotional harm e. Dillion: focus on foreseeability f. Restatement 3rd 47(b): special relationships but cannot recover if you are the parent of a patient with a direct victim claim Breach: RPP: objective standard of a reasonably prudent person under same or similar circumstances 1. Duty of care depends on foreseeability 2. B merged w/ comparative fault analysis

ii. Π must have had knowledge and appreciation of risk iii. Π must have voluntarily encountered the risk

5. Parental Immunity: a. b.

c. d.

CA: reasonably prudent parent WI: immune if exercising ordinary parental authority and parent is engaging in core parental functions IL: immune if alleged neg. act is inherent to parent-child relationship NY: immune unless duty to 3rd party

Assessing Liability: Vicarious Liability: When ∆ can be held liable for someone else’s tort, even though ∆ was not negligent 1. Employer/Employee relationship a. Must have committed a tort while acting within scope of employment b. Actions are at the time and place of work c. Actions are trying to advance the interest of the employer Strict Liability: Liability without fault 1. Abnormally Dangerous Activities: (R2d Rule – not all needed, but more than 1) a. Inability to eliminate risk through reasonable care b. High degree of risk of some kind c. Likelihood harm will be great d. Extent act is not matter of common usage e. Inappropriateness of location f. Extent value to community outweighed by danger 2. Products Liability: a. Warning Defect b. Design Defect c. Manufacturing Defect i. ∆ has to prove there was a deviation from design specification and the defect existed when the product left the seller's hand

Intentional Torts: Intent: Subjective – Purpose or knowledge to a substantial certainty 1.

Doctrine of transferred intent: between people and torts

Battery: Intentionally causing H/O contact with  1.

Intent: a.

Single: ∆ voluntarily made contact (reasonable person would find contact to be H/O) b. Dual: ∆ intended to make contact and intended contact to be H/O 2. Contact: contact may be direct or indirect with body of ∆ and body of π 3. Harmful/Offensive: Reasonable person’s reasonable dignity 4. With π: Can be with body or item connected that’s customarily regarded as part of body. Assault: Intent 2 cause reasonable apprehension of imminent battery. 1. Intent: Transferred intent works 2. Apprehension: Reasonable person standard; words alone not enough; no conditional threats 3. Imminent: whether ∆ had apparent present ability IIED: Intent to cause severe emotional distress through E/O conduct 1. Intent to cause severe emotional distress: purpose, substantial certainty, reckless 2. Extreme/Outrageous Conduct: jaw-dropping (utterly intolerable in civil society) a. abuse of power/position b. ∆ knows π is vulnerable c. repeated acts that π can't avoid d. phys. violence or threats of it to π / π's property / someone π cares about

False Imprisonment: Intentionally restraining/confining to bounded area w/ π’s awareness 3. Intentionally detained, confined, or restrained 4. Nonconsensual detention 5. Done without authority of law 6. Claim for False Imprisonment: π wrongfully confined w/out consent to a limited area w/out reasonable belief or in a reasonable manner a.

7.

Π actually suffered severe emotional distress: reasonable person standard...