This is an outline for Torts. My notes are very thorough. My note-taking process is to type extensive notes on every reading, supplement these notes with notes from class, and then systematically distill them down to outline form, point by point. I received an A in the course, was on Law Review, and am now clerking for a federal judge. ...
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Torts
Main Outline
Table of Contents
Chapter I: Introduction to Torts- What is a Tort? 5
Chapter II: Negligence and Duties 5
Differing Standards of Care 12
Defining the Person of Ordinary Prudence 12
Tender Years Doctrine- standard children for under X age 12
Industry and Professional Custom 13
Reasonableness, Balancing, and Cost-Benefit Analysis 14
Cause in Fact- Multiple Sufficient Causes 17
Cause in Fact- Indeterminate Causes- Alternative Liability 18
Cause in Fact- Indeterminate Cause- Market Share Liability 18
Intervening and superseding causes 21
Substantial Factor Exception 22
Crux of it all: Foreseeability 23
What needs to be foreseeable? 23
Type of injury, not the extent: Thin Skull Plaintiff 23
Foreseeability of the conduct: 24
Foreseeable plaintiff?? NO: Palsgraf 24
Unforeseeable manner of harm: 24
Ch. VIII: Trespass and Nuisance 41
Elements of a Prima Facie Battery Case : 45
Standard Defenses to Battery and Assault (these work for all intentional torts) 47
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
Elements of Prima Facie Case: Injury, Duty, Breach of Duty, Causation
Tort law compensates physical harm and can compensate loss of wealth and emotional distress (not spiritual loss, loss of opportunity or privacy)
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
Arguments for
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)
When spouse is injured you can claim loss of consortium, so why couldn’t you sue for this? (Helsel v Noellsch)
Arguments against
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)
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
Pros- it is a real harm, it is no more difficult to measure than other harms, every right should have a remedy
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 Rochester)
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 Warrington)
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 Restaurant)
Dillon v Legg - Zone of danger improperly restricted to those exposed to physical harm. Is extended to those exposed to emotional harm.
Court will evaluate these three factors to indicate whether the accident and harm was reasonably foreseeable
Was the plaintiff near the scene or far away?
Did the shock result from the contemporaneous sensory observance of the accident or just hearing about it later?
Were plaintiff and victim closely related?
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:
Is closely related to the injury victim
Has a sensory experience of witnessing the event
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.
No Recovery at all - 0
Impact test- only a handful of states still have
Zone of danger- a dozen or so states still have this
Dillon- plurality of states follow this
Thing- increasing number of states follow this
Direct Victim vs Bystander - Burgess v Superior Court: if you’re the direct...
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This is an outline for Torts. My notes are very thorough. My note-taking process is to type extensive notes on every reading, supplement these notes with notes from class, and then systematically distill them down to outline form, point by point. I received an A in the course, was on Law Review, and am now clerking for a federal judge. ...
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