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Main Outline Table of Contents
Chapter I: Introduction to Torts- What is a Tort?
5 Chapter II: Negligence and Duties
The Injury Element:
Alienation of Affections
Mental and Emotional Upset
General (Unqualified Duty)
Qualified Duties of Care
Affirmative Duties to Rescue and Protect
Pure Economic Loss
Duties Arising from Special Relationships
5 5 5 5 6 7 7 7 8 10 10
Ch. III: Breach Element
Differing Standards of Care
Defining the Person of Ordinary Prudence
Tender Years Doctrine- standard children for under X age
Industry and Professional Custom
Reasonableness, Balancing, and Cost-Benefit Analysis
Proving Breach: Res Ipsa Loquitur
Negligence Per Se
11 12 12 12 13 14 14 15
Chapter IV: Causation
But for causation.
Cause in Fact- Multiple Sufficient Causes
Cause in Fact- Indeterminate Causes- Alternative Liability
Cause in Fact- Indeterminate Cause- Market Share Liability
Indeterminate Causes- Loss of Chance of SurvivalProof of Factual Causation: Expert Testimony
16 16 17 17 18 18 19 20
Intervening and superseding causes
Substantial Factor Exception
Crux of it all: Foreseeability
What needs to be foreseeable?
Type of injury, not the extent: Thin Skull Plaintiff
Foreseeability of the conduct:
20 21 21 22 23 23 23 23 24 Foreseeable plaintiff?? NO: Palsgraf
Unforeseeable manner of harm:
Proximate Cause: Emotional Distress
24 24 25 25
Ch. V. Defenses
Contributory Negligence- Minority/Old Rule
Assumption of Risk
26 27 28 30 30 32 32
Ch. VI. Damages
Joint and Several Liability
33 33 35 37
Ch. VII: Strict Liability
Maintaining Custody of Animals
Abnormally Dangerous Activities
38 40 40
Ch. VIII: Trespass and Nuisance
41 41 42
Ch. IX: Intentional Torts
Elements of a Prima Facie Battery Case :
Standard Defenses to Battery and Assault (these work for all intentional torts)
Defense and Recapture of Property
Intentional Infliction of Emotional Distress
44 45 45 47 47 48 49 49 Chapter I: Introduction to Torts- What is a
A. 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
B. Elements of Prima Facie Case: Injury, Duty, Breach of Duty, Causation
Chapter II: Negligence and Duties
II. The Injury Element:
A. Tort law compensates physical harm and can compensate loss of wealth and emotional distress (not spiritual loss, loss of opportunity or privacy)
B. Alienation of Affections
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 a) 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)
b) When spouse is injured you can claim loss of consortium,
so why couldn't you sue for this? (Helsel v Noellsch)
3. Arguments against a) 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)
C. Mental and Emotional Upset
1. 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 a) Pros- it is a real harm, it is no more difficult to measure than other harms, every right should have a remedy 2.
b) Cons- we all suffer emotional harm all the time, difficult to measure/easy to fake; flood the courts with litigation)
Impact Rule- no recovery for fright without impact (Mitchell v
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
a) 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"
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
Dillon v Legg - Zone of danger improperly restricted to those exposed to physical harm. Is extended to those exposed to emotional harm.
a) 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?
b) Rest (3d) 47- Dillon found in Rest.
Thing v La Chusa (CA): Clarifies Dillon saying that in the absence of impact to plaintiff, damages for ED recoverable only if the plaintiff:
a) Is closely related to the injury victim b) Has a sensory experience of witnessing the event c) And as a result suffers emotional distress beyond what would be expected by a disinterested witness
Dilon wanted a flexible rule based on foreseeability and Thing rigified it (Foreseeability doesn't really matter) .
NOW: Different states have done different things but at least by and large zone of danger is rejected.
a) No Recovery at all - 0 b) Impact test- only a handful of states still have c) Zone of danger- a dozen or so states still have this d) Dillon- plurality of states follow this e) Thing- increasing number of states follow this
9. 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)
A. 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
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) 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)
B. General (Unqualified Duty)
1. General duty is to take ordinary care to avoid causing physical harm to foreseeable victims
2. Nonfeasance vs. Misfeasance a) 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)
b) General duty ONLY applies to misfeasance.
c) 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)
C. Qualified Duties of Care
1. Outside of general duty, courts look at three categories of
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