Torts Exam Guideand Checklist PDF

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This is a guide to the exam itself. It's a checklist/attack outline to guide you through the actual exam. ...

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INTENTIONAL TORTS BATTERY Prima Facie Case  Act by D  Intent to inflict harm (even if different from harm that occurred; Vosburg, Garrett)  Harmful/offensive contact (White v. U Idaho)  Causation Policy  Immunity of the person  Otherwise, we’d be prey to everyone; no one would sow today to reap tomorrow (Epstein) Defenses  Consent (unless not capable)  Emergency situation (consent likely)  Expected (athletic injury, Hudson; social setting, Vosburg if had been on playground)  Self defense (Courvoisier v. Raymond) ASSAULT Prima Facie Case  Act by D  Intent to inflict harm (RST, Tuberville)  Imminent apprehension (not fear, and even if P knew harm could be avoided)  Causation Policy  Right to live in society without fear  We want to deter this behavior Defenses  Consent (unless not capable)  Words alone not usually enough (1st amdt issues)  Self defense TRESPASS Prima Facie Case  Act by D  Intent  Intrusion upon land (person/physical thing)  P in possession/entitled to possession Defenses  Causation  Necessity o Private (Ploof v. Putnam); P may still get damages for repair (Vincent v. Lake Erie) o Public, only if public official who didn’t act maliciously; P can’t get damages IIED Prima Facie Case  Act by D (“outrageous,” but Clark’s opinion)  Intent to cause harm (reckless OK, Wilkinson v. Downton)  Causation  Severe emotional distress (modern rule: doesn’t have to accompany physical injury) Policy  High bar b/c IIED easy to fabricate  1st amdt. issues; we don’t want to stifle speech  Subjective; how to draw lines/compensate?  We want people to grow thick skins Considerations  Did D know P susceptible to harm?  Do we as a society want to tolerate this?

 If conduct directed at 3d person, any bodily harm? P immediately related to person? (RST) Defenses  1st Amdt., Consent NEGLIGENCE DUTY Duty  Is this the type of thing tort law deals with?  Cardozo in Palsgraf: “the risk reasonably to be foreseen defines the duty to be obeyed.”  Andrews in Palsgraf: a duty owed to one is a duty owed to all Affirmative Duties  In general, no affirmative duty (best thought of as a rebut. presump., not a cat. rule)  But the nonfeasance/misfeasance binary unstable (Epstein) Policy  D responsible for consequences of his own actions, but not a conscripted savior of others Exceptions  Landlord (Kline, control common area)  Special relationship o D uniquely positioned to prevent harm (Tarasoff) o P under D’s custodial care, then no cont neg (Padula v. State)  When D created the harm (even if non-negl., Montgomery v. Nat’l Convoy Trucking)  When D begins rescue  Gratuitous undertakings (promissory estoppel, Erie R.R. v. Stewart) o Cardozo’s approach (Moch): analyze D’s conduct to see if it gives rise to a relationship, then see if D needs to follow through with undertaking; distinguish benefit from wrong Owners and Occupiers of Land  To trespassers (innocent): no duty, but D can’t inflict harm through wanton and willful misconduct (Robert Addie)  To licensees (social guests): warn against hidden dangers  To invitees (business guests): reasonable care o Slip-and-fall cases: D has duty to seek out and correct conditions w/in reasonable time after occurrence  Rowland (Cal.): no categorical rule, but case-by-case o Not preferred b/c categories reflect expectations, and we want D to let others use home if not making profit Attractive Nuisance Doctrine (RST)  Knowledge that children will trespass  Artificial condition is dangerous to children  Children would not realize the risk  Danger outweighs burden of elimination Negligent Infliction of Emotional Distress  Zone of Danger rule (RST, Amaya v. Home Ice); useful because it draws lines, but the lines are artificial  Dillon and RST rule: if P was near scene, if direct sensory impact upon P, if P and victim closely related BREACH Reasonably Prudent Person  Objective Standard, because this encourages D to live up to the general standard; it’s also impossible to measure individual capacities (Holmes, “The Common Law”)  What a reasonable person thinks about: foreseeable risk of injury, likelihood, cost to avoid, social value of activity  Kids, what a reasonable kid would do, unless engaged in adult activity (Daniels v. Evans)  Physical impaired have to conform to reasonable careful person with that disability (RTT, Fletcher v. City of Aberdeen)

Custom  When should we rely on custom? o When it’s hard for a jury to figure out the risks, where the custom is clear and ascertainable, and more so in consensual vs. stranger cases (Epstein).  Important, but not dispositive (T.J. Hooper)  If the practice is manifestly dangerous, courts will even refuse to admit it as evidence (Mayhew; since the days of Tubal-Cain)  Medical customs o Let the profession set the national standard, not the jury b/c juries not equipped (over-deter; problem of hindsight) o Battle of the experts problem o Informed consent: D must disclose not only procedure, but also costs/benefits of alternative treatments or no treatment; Rationale: autonomy o P needs to show that if knew risks, would have made a different decision (Canterbury v. Spence); causation issue Negligence Per Se (Statutory Violation)  Is this the type of harm the statute was intended to prevent?  Are you the class of people that it was designed to protect?  Respects the hierarchical nature of the law (Thayer)  Evidentiary value: o Maj: per se duty and breach; min (CA): rebuttable presumption of negligence Res Ipsa Loquitor  This is the kind of thing that wouldn’t ordinarily happen w/o negligence (Colmenares Vivas v. Sun Alliance Ins. Co.)  It was D’s negligence, and no one else’s  Are the circumstances sufficient to show negl. when P can’t? Respondeat Superior  Employee or Independent Contractor? Petrovich: can employer control the way the agent does his work?  The motive test: rejected b/c inconsistent results (Ira S. Bushey)  Scope of employment  Acts reasonably foreseeable by employer?  Abnormally dangerous activities? (non-delegable duties)  Policy: Employer is the one making a profit; this also gives them incentives to take add’l care training employees CAUSE-IN-FACT “But for”  But for D’s act the event wouldn’t happen (RTT)  Lost chance doctrine  Market share liability (now rejected by courts) Substantial Factor (Multiple Independent Causes)  Use if 2 equally likely causes and P can’t prove but-for (Kingston v. Chicago N.W. Ry.) Alternative Cause (Multiple D’s, Single Cause)  If 2 Ds coordinated and caused harm  both liable  If didn’t coordinate but each was sufficient  both liable  If D’s conduct wasn’t by itself sufficient, or if P can’t determine whose conduct caused the harm  P can only recover from one; shifts burden to D to prove he’s not responsible. PROXIMATE CAUSE Foreseeability is the key  Was this the kind of harm that made D negligent?  Where do we draw the line? If P’s injury results directly from D’s act or omission, and is of a kind that a reasonable person would have foreseen the proximate cause is established (Marshall v. Nugent) Three ways foreseeability plays a role:  Manner of the harm: only crazy circumstances sever liability

 Result of the harm: if it’s foreseeable, D is liable, no matter how bad the harm is (thin skull rule); Polemis held D liable even for unforeseeable consequences that are directly caused  Plaintiff: duty only to foreseeable P (Palsgraf) Intervening Forces  D not liable for unforeseeable results from intervening forces Calculus of Risk  A more concrete way of thinking about negligence  Seeks to achieve the best overall efficient result for society as a whole by balancing costs and benefits  If PL > B (where PL measures the benefits of additional precautions, and B measures the burden/costs of precautions) then D is negligent and should have taken precautions  Hand’s forumla in United States v. Carroll Towing  Problems: how do juries apply it? what if the L is human life? DEFENSES Assumption of Risk  P voluntarily encounters a known danger and expressly or implicitly consents to take the risk of the danger (barred from recovery; parallels the idea of consent in intentional torts)  Express: P, in advance, has given his express consent to take his chance of injury from a known risk arising from D’s conduct, if:  Open and free bargaining  Public interest not involved  No willful/reckless behavior  Terms known by P or reasonable person o Main questions: (1) Did the risk that injured P fall within the terms of the agreement? (Dalury v. S-K-I Ltd.) (2) Does the K violate public policy? Tunkl factors:  The K concerns a business suitable for public regulation  D provides a service of great importance to the public  D is willing to perform that service to anyone  D possesses bargaining strength against public  D uses a standardized adhesion K  P’s person/property is under control of the seller  Implied: P volunteers to do something that will probably cause harm and chooses to do so anyway (Murphy v. Steeplechase)  Policy: More people’s needs are met, plus fairness  D’s arguments: P was in fact warned of the danger, the risk was obvious, P voluntarily assumed it, P was in a better position to know the risks  Employment context: Today’s courts don’t let employers contract away liability, but Holmes may have a point that there are jobs where P is paid for the danger. If P decides it’s worth it in his internal calculus, then we should recognize it. Lamson. Contributory Negligence  If P doesn’t exercise due care, recovery completely barred  Has to be a substantial factor in harm (RST), as well as but-for and proximate cause  Abandoned when D’s conduct was what caused P to be negligent (Gyerman, Smithwick)  Last clear chance doctrine, if unreasonable 2nd AoR  Policy: We want to encourage Ps to look out for themselves; dual function of liability rules; accident prevention depends on both sides (LeRoy Fibre Co., stacking flax near the RR); avoids the theoretical mess of comparative negligence  N/A: Statutory duty cases (Koenig v. Patrick Construction), Custodial care cases (Padula), Medical malpractice cases Comparative Negligence  Pure: P’s recovery gets reduced by % of negligence (Li v. Yellow Cab of Cal)  Impure: P recovers when P’s negligence is less than D’s  Policy:

o Contr. neg. doesn’t distribute responsibility in prop. to fault o Applied more consistently since it’s not a complete bar  Merges with assumption of risk where P and D both negligent Other Defenses (already mentioned)  Calculus of risk  Custom, including company’s internal rules  Cause in fact: it wasn’t D’s negligence that in fact caused the injury (Grimstad, life buoy case)  Proximate cause  No duty; this isn’t the type of thing tort law deals with STRICT LIABILITY D liable for harm that is in the scope of abnormal risk that is the basis of liability Categorical Inquiry (RST)  High degree of risk  Likelihood of harm  Inability to eliminate risk by due care  Not common usage  Inappropriateness of location  Value to community RTT Definition of “abnormally dangerous”:  Creates foreseeable and highly significant risk of harm even when due care is taken  Activity is not of common usage (b/c it alters the extent to which risks are expected/reciprocal; also too hard to enforce)  RTT got rid of the value to the community factor, but this should be a consideration when the value to the community is hard to tap into (e.g. fireworks, where can’t really profit) Also, is this the kind of activity where we want D to think about its location? Then SL (American Cyanamid Co.) Policy:  While Holmes rejected SL because he thought it would lead to infinite liability, he recognized that the SL of Rylands applied to certain activities if they were risky enough  Ps should recover for harm resulting from non-reciprocal risks Animals  Wild animals  SL (because of the scope of the risk)  Dog  Due care standard (Gehrts v. Batteen) NUISANCE Non-trespassory interference with use and enjoyment of land  Unintentional nuisance  due care standard  Intentional nuisance  strict liability component; even if D decided the value of the activity outweighed the social cost and was reasonable in doing so, the court will sometimes still allow the jury to find D liable. Considerations:  Can the suffering person easily avoid the harm?  What are the expectations of the surrounding area?  Does P have an ordinary temperament?  Is the nuisance the result of a socially valuable activity? Public nuisance: P has to prove he was particularly harmed by activity for private damages (more so than others) PRODUCTS LIABILITY Manufacturing Defect  SL if product left the factory in condition other than it was designed (Speller v. Sears Roebuck)  Policy (Traynor in Escola): Manufacturer’s market power, capacity to obtain insurance and spread the cost; we want to incentivize manufacturing to be as safe as possible Defective Design  Consumer Expectations test: If the product is more dangerous than the average consumer would imagine, D liable (RTT)

o Is this the intended use of the product? o Did P assume the risk? o Defense: risk was “open and obvious”  Risk/Utility test: If burden of making product safer doesn’t outwigh the benefit o Simple negligence standard o Feasibility of alternative designs; D argues back that alternative design would undermine the product  Policy: We can’t hold companies SL for defective design because it’s infeasible/would over-deter Duty to Warn  Can be treated as a type of design defect o Product defective when dangers not apparent to P o P needs to prove that warning would have put P in a better position to choose  What if D couldn’t have reasonably known about the risks at the time product was sold? o Maj: There’s no duty to warn; not SL (Vasallo v. Baxter) o Min: 20/20 hindsight rule holds manufacturer has a aduty to warn of risks w/o regard to whether manufacturer could have known the risks; SL  Prescription drug exception to duty to warn o Physicians know patient’s condition better, patient will listen  Problem with warnings o People bad at evaluating risks, so over or under-deter o Too much information may keep user from reading o We don’t want warnings to substitute for effective design Plaintiff’s Conduct  Some courts accept comp. negl. (Daly v. General Motors) o Don’t want to bar P’s action completely (like AoR) o But we know that certain behavior should limit P’s recovery  P’s conduct should not limit recovery if: o The misuse/modification is foreseeable (RST) o The risk P assumes is the very risks that makes product defective DEFAMATION Traditional Elements  Defamatory communication  False o Modern statement; the old rule held that truth was defense o If D is a public official, P has to show actual malice (Sullivan) o If Di s a public figure, P has to show actual malice (Curtis Publishing Co.) o States need to at least require negligence (Gertz)  Publication Categorical Approach (e.g. Muzilowski v. Paramount); P doesn’t need to show special damages if:  Commission of a crime  Infection with a loathsome disease  Words that prejudice a party in trade, profession, or business  Fornication or adultery Defenses  Truth o Statements that are not actionable:  opinion  parody  matters open to scientific dispute (Auvil v. 60 Min)  Conditional privileges o D can prove he had a duty or interest in communicating and this duty confers the privilege (Watt v. Longsdon)  Absolute privilege o Like in a legal proceeding, but not outside (Kennedy)  Fair comment

 Ambiguity Group Libel  Tort law not good at dealing with it b/c harm diffuse/hard to trace  Neiman-Marcus: “no reasonable man would take the writer seriously and conclude from the publication a reference to any individual”...