Torts Kass Outline

8/3/2019 Torts Kass Outline

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NEGLIGENCEElements:

1. Duty: a legally recognized relationship b/w parties that requires D to act a certain

way

2. Breach: A failure of D to meet the required standard of care

3. Causation: Nexus b/w Ds conduct and Ps harm1. Factual (actual) cause - "but for"

2. Proximate (legal) cause

4. Damages: A cognizable loss to P, compensable by a money reward

3. CAUSATION:

1. Proximate Cause:

(1) Reasonably foreseeable harm of the consequent damage

(2) Liable for anticipated/expected consequences of Ds neg. acts

Factors:

1. Foreseeable Consequence

1. Type of Harm (foreseeable) Not Extent of Harm

2. Eggshell Skull, the harm (foreseeable) not Particular Type of Harm

3. Unusual Manner, manner need not be foreseen

2. Not too attenuated (in time and space)

3. Natural and Continuous Sequence

1. NO superseding Intervening Forces:

Unforeseeable intervening forces - Cut Off Liability

Later int'l/crim conduct; extraordinary or far removed

from Ds neg. severs prox. Cause

Foreseeable Intervening Forces - DO NOT cut off liability

Later neg. by others

Later acts of nature; unless extraordinary or

unanticipated

4. Direct Connection (w/public policy reasoning)4. DAMAGES

P must prove actual damages ($loss) as part of their prima facie case for Negligence

Tort Damages:

COMPENSATORY: "to make P whole again"

Purpose: restitution and indemnity (nothing more)

1. Special (money damages) - must be plead and provide evidence

Medical and related expenses

Lost earnings/earning capacity

General (non-econ relief) - no calculations

Pain and suffering

Complete Destruction - Fair mrkt value

Partial Damage - Diminution in Fair mrkt value OR Cost of Repair

Temp. Deprivation of Use - Rental value

NOMINAL: small sum awarded to prove

a point ←

Not avail. In Neg

Actions

Purpose: Vindicate Ps rights or Prevent D from acquiring A Right



PUNITIVE: additional sum awarded over/above

compensation

← Not avail. In Ordinary Neg

Actions

Purpose: punish the D and deter others engaged in similar conduct

Available when Ds conduct is outrageous

D's act with Reckless disregard or Malice

RULES: Single Recovery: All compensatory damages [past/present/future] must be

awarded @ time of trial

Adjust for time value [ ↑ for inflation ↓ for present value/interest ]

Duty to Mitigate: no recovery for aggravated damages [ Doctrine of

Avoidable Consequences]

P is responsible to limit losses by exercising reasonable care

3. Collateral Source: Ps damages are NOT affected by compensation received

from collateral sources

P gets a windfall; tort reform ha eliminated the rule in some states

4. Maximum Recovery: Jury award must be reasonably supported by the

Evidence Cannot be 2nd guessed by judge if w/in max. amnt. supported by the

evidence

LEGAL VIDEOS:

"Day in the life" - used as evidence during the damages phase @ trial

"Settlement Documentary" - used pre-trial to present case

Damages With Mutiple Ds

JOINT TORTFEASORS: D's who either -

1. Act in concert; agree to aid, engage, or encourage a tort

2. Cause a single divisible harm; from independent acts

3. Are Vicarious Liable; based on a special relationship

RULES:

COM. LAW: Joint and Several Liability

Entire amount recoverable from each tortfeasor; OR

A share of the damages from each

BUT; no double recovery

MODERN: Comparative Fault

P may recover only fault based share from each tortfeasor

DEFENSES TO NEGLIGENCEBased on Ps Conduct

CONTRIBUTORY NEGLIGENCE: COMPLETE BAR

(1) Ps own conduct falls below the strd. of care and (2) is a legally contribution cause

UNLESS; D had the Last Clear Chance (doctrine) to avoid the harm If applicable: D remains liable despite Ps prior neg.

COMPARATIVE NEGLIGENCE: LIMITS RECOVERY

Pure: can recover regardless of own neg. but Ps recovery is reduced by own fault %

Modified: Ps recovery is reduced by % of own neg. OR

BARRED - IF P's negligence EXCEEDES the fault bar [level of culpability]

is "greater than" Ds neg = BAR {Majority}

is "Equal or Greater than" Ds neg = BAR



is "More than Slight" = BAR {1 State}

ASSUMPTION OF THE RISK [A/R]: Generally D is NOT LIABLE

Where P knows of the risk posed by Ds conduct and voluntarily encounters it

1. EXPRESS A/R : by K or other explicit agreement P accepts risk: COMPLETE BAR

Exceptions; (assumption is invalid)

1. Intentional, Reckless or Gross Negligence (by D?)

2. Grossly unequal bargaining power

3. Public Interest Transactions

i. TUNKL TEST: (determine what is pub trans)

Suitable for pub

regulation

Superior bargaining power

Essential service Adhesion K

Services held open to

the pub

Seller has control over and subjects

P to risk

4. Outside the scope of Assumption

5. K invalid, Fraud, Mistake, Undo Influence2. IMPLIED A/R: Ps conduct shows P assumed risk : COMPLETE BAR

D must prove P; (1) Knew of the risk/magnitude, and (2) voluntarily encountered

it

INVOLUNTARY Conduct: Juris split where -

P is coerced or under duress

P has no reasonable alternative

UNREASOANBLE A/R: Juris Split -

[1] A/R Remains Complete Defense BAR Traditional

[2] A/R Partial merger w/ COMP

Fault

Unreasonable A/R

→

Reasonable A/R

→

(Patial Defence)

↓Recovery

BAR

Min. Trend

[3] A/R Fully merged w/ COMP Fault

Unreasonable A/R

→

Reasonable A/R

→

NO BAR

↓Recovery

No or Some ↓

Maj. Trend

VICARIOUS LIABILITY [V/L]Liability based on a relationship not fault (imputed)

Employer [ER] / Employee [EE] - Generally Liable (if w/in scope of employment)

ER / Independent Contractor [IC] - Generally not Liable

Joint Enterprises - Generally Liable

Bailment - Generally Not LiablE

EMPLOYMENT V/L

Step 1: Is the tortfeasor an EE or an IC

Test: Right of Control - Factors



Control over details Tool provider and place of

work

Similarity of occupation to

business

Length of employment

Extent of supervision Payment method (salary -EE)

Skill level (higher = more

likely IC)

Understanding of the

parties

EXCEPTION: foreseeable damages that arise from or are related to work

Step 2:

a. IF EE - Were they acting w/in Scope of Employment

Test: "Going and Coming Rule" - EE ordinarily outside scope while commuting

to/from work

EXCEPTION: foreseeable dangers

"Frolic and Mere Detour Rule"

Frolic: personal acts far removed in time, distance, purpose, and

expectations of

employment - outside scope

Detour: personal acts closely related in time, distance, purpose,

and expectations of

employment - within scope

"intentional Torts"

ER V/L for EE int'l torts where EE acted to serve ER's purposes

ER NOT V/L for EE int'l torts when EE acted purely for personal

reasons

b. If IC - Do any exceptions apply to general rule of No V/L

Exceptions: "Non-Delegable Duties" - as a matter of pub policy cannotdischarge duties by hiring

someone else

"Inherently Dangerous Activities" - Require more than ordinary

precaution

ER Not V/L if IC engage in collateral negligence - risk not

usual to work

-crop dusting, moving giant logs, unloading propane

JOINT ENTERPRISES - mostly applies to commercial ventures

Factors:

Agreement, common goal, pecuniary purpose, equal right of control

BAILMENTS - loaning chattel to anotherException to general non liability; Permission given to the driver - bailee from bailor

Car consent statutes, bailor is passenger in car, Family Purpose Doctrine

STRICT LIABLITY [S/L]Liability without fault, not absolute b/c need prox cause and some defenses are awarded

ANALYTIAL FRAMEWORK:



Step 1: are S/L Animals or S/L Activities involved

Step 2: is type of harm w/in the inherent risk posed by Animal or Activity

Step 3: is there causation, factual but for and prox cause foreseeable harm

Step 4: does D have any Defenses

TRESPASSING ANIMALS - keepers of roaming animals are S/L for any harm caused

Exceptions: cats and dogs, livestock straying from highways

Livestock Statutes:

Fencing out - P fences out

Fencing in - D fences in

Strict liability - same as common law

No liability w/o fault

DANGEROUS ANIMALS - 2 Tests; wild v. domestic

1. Inherent Nature of Species - dangerous and untamable

Look at entire class of animal, not just the particular case

2. Customarily of Service to Humankind - determined by community standards o Wild - S/L - provided the type of harm results from the animals dangerous nature unless

exception exists (zookeeper)

o Domestic - ordinarily not S/L for harm - Exception; if owner is on notice (or should have known) of animals vicious

propensities (scienter)

Subject to statutory modification

ABNORMALLY DANGERUS ACTIVITIES - 2 approaches

1. Rylands: when a person brings something that’s harmless as long as it remains, BUT

would naturally do mischief if it escapes the property, the owner is S/L for all natural

consequences

Exceptions: Acts of God (as a superseding innerving cause), unnatural

consequence, Ps contrib. neg

Applies only to harm to property from non-natural uses of property

RS 2nd Factor Test : (balancing)

1. High risk of some harm

2. Likelihood of great harm

3. Inability to eliminate risk w/out reasonable care

4. Uncommon usage

Community strd

Masses of humanity engage

5. Inappropriate location

6. Value to community outweighed by danger of activity ] Hand formula: B<PL

B = Burden, P = probability of harm, L = magnitude of harm

Activities: Dynamite blasting, tox chem ship/storage, pile driving, fumigation, rocket

testing

DEFENSES

A/R - know/voluntarily encounters risk

Privileges and immunities - exempt because of public good or government

requirement

Comparative fault - not defense, results in reduction

Contributory negligence - not complete defense, some jurisdictions allow for

reduction



PRODUCTS LIABLITYGoverns liability for the commercial transfer of products that cause harm b/c they are

defective and/or falsely represented

1. NEGLIGENCE

Duty: owed by all Products Sellers (Ds) to Purchasers and other foreseeable Ps Breach: Unreasonable product design, mfg., or warnings

Causation: But for factual and proximate foreseeable harm legal cause

Damages: $ loss from physical injury or property harm

Defenses: Comparative fault, Implied A/R, Unforeseeable Product Misuse (will bar

p's claim if injury results from unforeseeable misuse of defective product - but not if

misuse was reasonably foreseeable)

2. INTENTIONAL

Requires:

Intent: D Intended consequences or KTSC harm would occur

Damages: Compensatory and Punitive (like intl torts)

Defenses: Consent only (no neg defenses for intl torts)3. MISREPRESENTATIONS: RS2nd 402b - Seller of any product in a defective condition

unreasonably dangerous to the

consumer/user of property is subject to liability of physical harm

Elements:

1. Merchants

2. Who make a misrepresentation of material fact to public in advertising, labels

or otherwise

3. Are liable to P (consumer or incidental user) if justifiably relies on the misrep

4. And damages for physical injury proximately result

Defenses: Ps Neg and A/R

4. STRICT PRODUCTS LIABLITY (RS 402A) manufacture, design, warning defects

IF;1. Seller is engaged in the business of selling such a product and

2. It is expected to and does reach consumer without substantial change in

condition

Elements:

Commercial seller and consumer user; enjoy, prepare for use, doing

work w/ product)

Defective product that is unreasonably dangerous

The defect caused physical harm or property damage

The product is expected to and does reach consumer without substantial

change

MANUFACTURING DEFECTS: does not conform to some significant aspect of theintended design nor does it

conform to the great maj of products with that design

Test:

Product unit is dif from others

Is more dangerous

Defect existed @ the time the product left Ds control

Considerations: post sale alterations, time passage, settlements



2. DESIGN DEFECTS: occur when intended design of whole product line is inadequate

and needlessly dangerous

Tests: Risk Utility - If R > U then design defect

R=Risk of harm from product design. U=Utility of product as designed

RS3rd Factors:

1. Usefulness and desirability touser/public

5. User ability to avoid dangers

2. Safety aspects of product 6. Mfg. spreading loss > insurance

3. Available substitute 7. Consumer expectations

4. Ability to make safe without

increased

cost/usefulness

State of the art: Existing level of

technological

expertise and scientific

knowledge of a

particular industry at the time

the product

was designed

Consumer Expectations : defective product design if it is

Dangerous to an extent BEYOND that contemplated by the consumer

with ordinary knowledge common to the community as to its

characteristics

Hybrid Approach:

Prong 1: Consume Expectations Test: P must prove product failed to

perform safely as an ordinary consumer would expect

Prong 2: Risk/Utility Test: if p proves the products design proximately

caused the injury, D must prove U> R (utility as designed was greater

than risk of the harm)

Availability of Safer Design Alternative:Courts split on if P must prove a safer, practical, alternative design was

available to the manufacturer

Unavoidably Unsafe Products Doctrine: risk/benefit analysis; Even though the

product is dangerous (aka serious cancer drug side effects), the product is not

defectively designed b/c the risks outweigh the benefits of the product (cancer

drugs saving a life)

This exception typically applies to medical devices where -

a. The product is unavoidably unsafe (incapable of being made completely

safe) for its intended and ordinary use

b. The product has an extraordinarily high utility

c. The utility of the product outweighs the dangers; andd. The product is sold with appropriate directions or warnings are

provided.

3. WARNING DEFECTS:

Rule: manufacturers obligation is to inform consumers of hazards which seller

knew or should have known at the time of manufacture and distribution

For S/L failure to warn, P must prove Ds actual or constructive

knowledge of the products potential risk/danger



Manufacturer owes no duty to warn about risks that are open and

obvious

Adequacy of Warning:

Content - comprehensible and fair indication of specific risk

Form - Reasonably catch consumers attention

Factors:

Gain Attention Instruct on Avoidance

2. Identify Hazard 4. Provide Remedy

Sophisticated User Doctrine: exempts sellers from duty to warn if the buyer

already knows of the risk b/c of his expertise

Learned Intermediary Rule: pharmaceuticals - warnings can be directed at Dr.

not patient and seller owes no duty to warn to patients

Post Sale Duty to Warn Doctrine : imposes a duty for manufacturer to provide

post sale warnings about risks discovered after the sale

MISREPRESENATION

[Commercial] harm caused by Ps justified reliance

on Ds false representation of material fact

Words or Actions that:

1. Create false impressions

2. Cover up

3. Remove discovery opportunities

Methods for Achieving Misrep:

1. Active Deceptions (words/actions)

2. Certain Failures to Disclose -

a. Fiduciary relationship = duty

b. Buyer unable to discover w/ reasonable

diligence = maybe duty3. Partial Disclosures, 1/2 Truth

Factors for Misrepresentation: (Int'l, Neg, S/L)

1. Must be MATERIAL

TESTS:

Objective - a RPP would attach importance to it

Subjective - D knew or should have known of the particular P would consider it

important

2. Must be Past or Existing FACT

Gen Rule: Opinions such as Puffering, Trade Talk, ad Statements of Value are not

actionable

Exception: parties are of unequal footingOpinions are Actionable when;

1. Ds with superior knowledge and expertise

2. Fiduciary Duty

3. Independent Neutrals

Predictions: Statements cannot consist of conjectures of future acts/events

UNLESS; the misrep implied existing facts or present intent

INTENTIONAL MISREPRESENTATION - Fraud - Factors;



3. State of Mind: Requires Scienter (as to falsity)

a. Knowledge that it is false OR

b. Recklessness as to the truth

4. Proper Party: Ds liable to persons (or class) whom;

a. D intends or has reason to expect will act in reliance of misrep

1. Desire to induce or KTSC they will rely

b. Must be reliance on the Type of Transaction D Intended or Expected to Influence

c. P must be of the Class D had reason to expect to View the misrep

5. Justifiable Reliance: P cannot rely on a misrep which is obviously false and cannot avoid

discovery of the truth

a. Factors; Nature of the Statement, P's Qualities and Character, and the Circumstances

6. Damages:

a. Benefit of the Bargain = Bargained for Value - Actual Value

b. Out of Pocket = Amount Paid - Actual Value

NEGLIGENT MISREPRESENTATION - Factors;

2. Limited to Commercial Fact

3. State of Mind: American Rule - Recovery Allowed where D

a. Who: Owes a duty to give "Correct Info" Speak with Care b. When: (1) D has Knowledge of Materiality and Reliance AND

(2) A relationship exists where P has a righ to rely

4. Protected Parties:

a. NY Approach: (Quasi-Privity) - in K Relationship or Equivalent

1. Requires;

a. Ds awareness of the particular purpose info to be used for

b. " " a specific party intended to rely on info AND

c. Linking conduct between D and P showing D understood P would rely

b. WI Approach: (Foreseeable)

1. Ps injury must be Foreseeable and Liability Not against Public Policy (PP):

a.

PP Considerations 1. Injury too remote 4. Unreasonable burden on D

2. Injury disproportionate to

culpability

5. Fraudulent claims

3. Too highly extraordinary that neg.

brought harm

6. Recovery would open the liability

floodgates

c. RS Approach: P must be a person or limited group for;

1. Whose benefit and guidance D INTENDS to supply info (or knows recipient

intends to supply info)

2. P relied on an intended transaction or subs. similar one

e. Justifiable Reliance and Damages: Same as IntlS/L MISREPRESENTATION

2. Limited to certain Sales Transactions

3. State of Mind: Innocent - D has means of knowing, duty to know or ought to know truth

4. Protected Parties: Privity - only parties of the transaction

5. Justifiable Reliance : same

6. Damages: Same as Intl But LIMITS to OUT OF POCKET

DEFENSES (none for Intl Misrep)



1. Contributory Neg: Only Neg. Misrep

2. Comparative Neg: Neg. and S/L

3. A/R: Neg. and S/L

DEFAMATION

Harm to reputation from false statementsCom. Law: Def stmts are those that hold P up to "SCORN, RIDICULE, or CONTEMPT

RS : Def stmts tend to harm Ps reputation by

a. LOWERING him in estimation of community OR

b. DETERS 3rd parties from associating with him

Elements:

1. DEFAMATORY STATEMENT : must be UNDERSTOOD as defamatory by -

a. Gen Rule: SOME # of pple

b. RS Position: A SUBSTANTIAL minority of pple who are not ANTI-Social

c. Min Rule: some RIGHT Thinking people

Plead in addition to Def Stmt to

Inducement: background info to explain principle that makes the stmt defamatory

Innuendo: Explains defamatory Meaning

2. ABOUT THE P : must reasonably be understood by recipients as being ABOUT or CONCERNING

the P

Colloquium: the formal allegation that the Def words are "of and concerning the P"

IF P is a member of a:

Large Group: cannot sue; UNLESS particular circumstances point to the P (can an individual

in a large group prevail)

Small Group: May all sue; IF stmt refers to EVERY MEMBER

3. FALSE : P must prove falsity at least in cases w/ public Ps or Media Ds and Matter of Public

ConcernTrad Com Law Rule: PRESUMED Def Stmt to be FALSE; but D could asset "TRUTH" as

affirmative defense

To support Defense based on truth --

D must be able to prove the stmts are SUBSTANTIALLY TRUE

4. FACTUAL : stmt must be a fact to be actionable (opinions actionable in limited circumstances)

Fact v. Opinion

Matters of Pub Concern: Stmt must be PROVABLY FALSE

Protected Exception: Rhetorical Hyperbole which cannot be reasonably interpreted

as actual facts

Gen OPINION Rule: Actionable where it either -

a.

Contains or implies provably true or false facts ORb. Is contrary to speakers actual viewpoint

5. PUBLISHED : (1) COMMUNICATED int'ly or neg'ly by the D (2) to @ least ONE person other than

the P who UNDERSTOOD it

a. Self Publication: NO publication where P rather than D communicates the Def Stmt

EXCEPT; Reasonably expected consultants or Forced Self Publication

b. Re-Publishers: REPETION of a published Def Stmt GENERALLY constitutes an actionable

publication



Rules -

a. Primary Publishers: are liable for any repub. EVEN IF they innocently took Def Stmt

from someone else

b. EXCEPTIONS;

1. Single Publication Rule - entire edition of a book, periodical, or newspaper

constitutes a single pub = a single cause of action

2. Secondary Publishers - Are NOT LIABLE

a. UNLESS; They (1) had KNOWLEDGE of the Def matter AND (2) Some

reason to be put ON GUARD

c. Internet Publishers: No interactive comp service is treated as a publisher of info provided

by another content provider

6. P must SUFFER DAMAGES : proof of damages turns on;

Com Law: whether claim is Libel or Slander

Con Law: status of the parties and type of concern

SLANDER - Spoken words, transitory gestures and any form non Libel

Rule: requires proof of Special Damages unless claim is Per-se

Eg. Loss of marriage, customers, gratuitous entertainment

Per-se: 4Cs

a. Serious Crimes c. Professional inCompetence

2. Loathsome Communicable

Diseases

4. Serious sexual misConduct (want of

Chastity)

LIBEL - Written or Printed words, or embodiment in physical form of equivalent harmful qualities

Rule: allows for general (presumed) damages

Per-se: Def meaning understood from the written words alone

Per Quod: extrinsic evidence needed to show defamatory meaning

*juris split on proof of damages

1st Amendment Elements7. Ds STATE OF MIND : In matters with Pub Officials/Figures -

Rule: Pub Officials/Figures can only recover from Def Stmts made with ACTUAL MALICE

b/c have/appear to have sub. Responsibly for or control over the conduct of Gov

affairs actual malice re true/false

Applies to; (1) Pub Official and Pub Figure Ps, (2) Public Matters, (3) Possibly Media Ds

PROOF OF FAULT:

Actual Malice: reckless disregard for truth or falsity of Stmt

Must be sufficient EV that -

1. D entertained SERIOUS DOUBTS as to the truth of Pub OR

2. D made Pub w/ HIGH DEGREE OF AWARENESS of Probable Falsity

Evidentiary Strd -

Clear and Convincing Evidence

All Purpose Pub Figure: has achieved pervasive fame and notoriety or enjoys pervasive

power and influence

Limited Purpose Pub Figure:

Voluntarily injected him/herself OR

Was drawn into a particular Pub controversy and Attempted to INFLUENCE THE

OUTCOME



DEFENSES TO DEFAMATION ACTIONS

CONSENT

1. Not based upon fraud or duress (voluntary)

2. The publication does not exceed the scope of consent and

3. Made by a competent person

TRUTH: D must be able to prove the statements are substantially true

**con law cases shifts the burden to P if PO/PF or Matter of Public Concern**

PRIVILEGES

Absolute Privilege - absolute immunity -

GOVERNMENT PROCESS (judicial, legislative & executive); Protects statements by

Anyone involved in a judicial hearing

a. Published in the course of judicial proceedings

b. That have some reasonable relationship to the judicial proceedings

Legislative privilege protects statements

a. Made in legislative proceedings (e.g. floor debate, committee work,

witnesses at hearings)

b. Made as part of the deliberative process

Executive Privilege applies at least to

a. Absolute and statutory - limited to hi ranking fed and state gov officials

b. Who are exercising the functions of office

*The Federal Tort Claims Act protects: Statements by any federal official w/in

the scope of employment (exceptions and can be waived)

COMPELLED BROADCASTS: Can't sue the outlet that is broadcasting gov. type

forced stuff

SPOUSAL COMMUNICATIONS: Communication between married couples is

protected

Qualified/Conditional Privilege - can be lost (if you knew it was false when it was said, or made

it with an improper purpose/ill will bad faith)



o P has proved all the elements, D is saying that they cannot be held liable b/c of a priv.

FAIR COMMENT PRIVILEGE : Protects opinion on matters of public interest

Irrelevant: look to provably false standard (if implies facts that are provably true that

are objective then actionable)

FAIR AND ACCURATE REPORTING PRIVILEGE : Reports on public proceedings are

conditionally privileged as long as the reports are

Verbatim transcriptions or

Fair and accurate summaries (not biased or taken out of context,

substantially correct)

Lost if not transcribed correctly

If 1st amendment applies, D must be at fault

INTEREST PRIVILEGES (social utility, but can be los if abused)

Public interest: protects statements that are made in the interest of the

public, like a PSA, and trying to inform the public

Loose if made with malice, or made knowing they are false or to

an inappropriate person who is not in a position to benefit

Ds self-interest

Protected unless know it is false acting with ill will/malice 3rd party interest

Common interest

Personal

Injury

Property

Damage

Torts Kass Outline

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