TORTS REVIEW
.pdf
School
Fordham University**We aren't endorsed by this school
Course
TOGL 108
Subject
Law
Date
Dec 18, 2024
Pages
6
Uploaded by EarlWaspMaster1261
Major Torts1.Negligence2.Battery, Assault, and IIED3.Property Torts4.Strict Liability5.Products LiabilityNegligence Law1.Duty (Question of law→ good basis for summary judment)a.Physical harm (misfeasance)→ there is always a duty, no special relationship needed(think: car accident, medical malpractice, people who create dangerous conditions)i.Specific cases mentioned: Winterbottom, Mussivandii.Arcadian case→ case of misfeasance?b.Nonfeasance→ failure to act, warn (Osterlind)i.There is no duty to protect someone else from harm when there is no specialrelationshipii.There are cases when nonfeasance is actually misfeasance (Ex: driving a carand not hitting the brakes when someone runs out into the road)iii.Exceptions: special relationships (teacher-student, employer-employee,commercial establishment, when you start to help someone and then actnegligently) creates an affirmative duty to protect the personiv.Good samaritan statute→ protects innocent party from being sued when they actto save someone and the person is injured NOT THROUGH NEGLIGENCEv.If you’ve created the peril→ there is a duty of care to help the person who you’veplaced in perilc.Emotional harm→ generally no duty of care (Dillon, Thing v Lacusa, zone of danger rule(NY)--> requires more than Dillon, have to be closely situated v Dillon (CA)--> requiresyou to be there + witness it)i.Exceptions:1.Special relationships2.Parasitic and intentional3.Stemming from pain and suffering (ex. Developing depression after beingtortiously injured)d.Economic loss→ generally no duty of care (Aikens)i.Exceptions:1.Special relationship2.Breach- usually an issue for the jury (Martin v Evans)a.Ordinary care/reasonable prudent person under the circumstances→ generally thestandardsi.Exception: common carries, Meyers (professional standard)ii.Circumstances can change how reasonable person standard is applyb.Circumstances can affect/ratchet down reasonably person standard (applies for discretephysical disabilities, age) not usually for mental disabilityi.Jurisdictions sometimes red line age→ tenders year doctrineii.Others that don’t use it looks at similar child of age/circumstances, etcc.Statutes/customs→ D can show that they complied with statute/custom which may help ajury find that D was not negligence (not a complete defense)i.Showing D failed to comply withcustommay help P, but isn't it a silver bullet
ii.Showing D failed to comply withstatuteis more complicated→ depends onstatuted.Anti-TJ Hooper rule→ (in medical malpractice)--> gets complicated when involvinginformed consent (NY rule for what must be provided→ professional rule→ whatevermedical professionals in the area would have provided is what you need to provide)i.NJ and other areas→ Medical professional failed to disclose information that areasonably prudent patient would need to know to make a decision (regardless ofcustom)--> more in line with anti-TJ hooper rulee.Medical malpractice→ need expert testimony for professional standardi.Res Ipsa→ the thing speaks for itself→ used if P can’t perform to a particular actthat caused the injury (i.e this isn’t the normal thing that would’ve happenedunless there was negligence by D and D was in exclusive control of the thing thatcaused the injury)--> allows jury to infer breachf.What happens when 3rd parties sue lawyers→ (lawyer screwed up Father’s will and sonsues) most jurisdictions you can sue for a legal malpractice case because there is a dutyof care to a beneficiary of a Will (in NY→ more likely to win for contracts)g.Hand formula→ how inexpensive the precaution would have been? < the probability ofthe lost occuringh.Negligence per se→ certain kinds of law whose whole point is to say X conduct isnegligenti.Nielson v Dolan, children of a certain age having to wear carseatsii.Silver bullet that D breachedi.Adams v Bullock→ sometimes can get jury to rule no breach as a matter of law3.Causation→ but-for cause it the core issue (usually a matter of fact→ but like Bullock can havejudge throw it out if no reasonable person could say causation)a.Muckler + Falconb.Variants: 2 fire (St. Paul)--> both fires would have caused the house to burn down, butonly one was necessary, Summers→ symmetry between two wrong doers→ CA appliesjoint and several liability,Boomer(exposure to asbestos) Ac.Proximate causei.Directness (Polemis)ii.Foreseeability (Wagon Mound and Jooley)iii.Scope of the risk (R3) (Allbritton, Jolley)iv.Realist, Gestalt/Andrewsv.Arcadia→ superceding cause (what is superceding cause? Terrorists makingbombs from fertilizer isn’t unforseeable but to remote on causation and too muchsomeone else’s wrongdoing)d.Defenses:i.Comparative/contributory negligenceii.Assumption of the risk (implied + express) Smollet. Tunkl, Jones, Dalury1.Secondary assumption of the risk treated like comparative fault (gettinginto a car knowing the driver is drunk)2.Ski case (check which one) WASNT assumption of the risk→ Dalury(Dalury may be more like skydiving as opposed to medical care inessentialness→ but Vermont thought as a matter of public policy wasimportant to hold ski resort accountable)3.Review Tunkl factorsiii.Soverign Immunity and Governmental Immunity (Riley, Koffman)1.May remain in partial form even if waived by some states
e.Vicarious liability→ can apply vertically or horizontally (vertical is more important)i.Employer/employee→ was the employee’s conduct motivated (at least in part) forthe benefit of the employer?ii.Tabor v Maine→ does employee’s conduct benefit the employer?1.Detour v Frolics**only applies to employees for the most partiii.Usually no liability for independent contractors1.Exception: hotel hires contractor and someone gets hit byf.Vicarious liability for intentional torts→ sometimesi.Bouncer at bar is too violent throwing someone out→ yesii.Cashier stabs a person in the store because he didn’t like the guy→ nog.Wrongful death and survival→ Nelson v Dolan (look at NY statute)i.Survival action- “brought from the grave” survivor continues a suit that the deadperson started (idea: if P would have won damages if they survived they shouldhave a right to it)ii.Wrongful death- people who are hurt by the person’s death (usuallyspouse/children) can also recover for lost of consortium (NY statute→ doesn’tapply? Check this)h.Other matters:i.Worker’s compensationii.Statute of limitationsiii.Evidentiary Rules (for med mal, expert witness, sorverign immunity) Meyers,Riverdale4.Injury (Damages)a.Compensatory Damagesi.Eggshell skull (vosburg, leech brain)ii.Past and future→ unforeseeableiii.Pecuniary and non pecuniaryiv.Pain and sufferingv.Judge and jury (passion/prejudice from jury)vi.Tort reform→ many jurisdictions have caps on damagesb.Punitive Damagesi.Common law standard: willful and wanton is the standardii.Review for excessiveness (constitutional concerns) BMWiii.Jury considerationsiv.Procedural differences (need clear and convincing evidence)5.Batter and assaulta.What is touchingb.What is offensivec.Intent to touch or intent to harmd.Procedural issues, statutory debatese.Transferred intents (can bet transferred between battery and assault + diff people)f.Defenses (consent, self defense, property, other)g.Damages issue→ compensatory damages for injuryi.Paul case→ dignitary harm6.Assault→ apprehension of imminent harma.“I’m going to hit you”--> generally not enough, as opposed to moving your body in acertain way may be enoughb.Imminence + apprehension
c.Extra sensitivity→ if D does something intentional that someone may be extra sensitive toit may not be enough for an assault claim (if it wouldn’t cause a reasonable person toapprehend)d.Words alone→ generally not enough7.IIED→ intentional infliction of emotional distressa.Elements→ outrageous conduct→ usually issue for juryb.Classic examples (extortion by the mafia)c.Outrageousness defined (Nicerson, Snyfer)d.Intentionality limitede.Severity of distressf.Jury issues→ courts are open to summary judment argument that no reasonable jurywould find it outrageous8.Tresspassa.Elements:i.Invasion, normally by actionii.Tangibleiii.Possessory interest→ P doesn’t need to be owneriv.Real propertyv.NO FAULT (Burns Phelp, Vincent)b.Defenses:i.Consentii.Necessity (you can’t be thrown out but can be held liable for damages)9.Nuisancea.Unreasonable interference with use and enjoymentb.Examples: Penland, Sturges (smells, breathing problems, loud sounds, scary/distractingthings going on consistently)c.Sturges→ just because someone was there first doesn’t mean they can’t be a nuisanced.Differences from Trespass10.Strict Liabilitya.Rylands→ no wrongdoing, what they were doing was very dangerous even if done safelyb.Theory of tortc.Classic examples: wild animals, blasting (REVIEW ANIMALS IN NJ)d.Klein and Restatement 2nd 82911.Products: Beginningsa.Escola rationales (is the product dangerously defective that renders it unsafe for ordinaryuse)b.Heningsen + MacPhersonc.Greenman merging of two ideasd.Content of Rest. 402Ae.Centrality of seller, replacement of breach with defectiveness12.Products: Defecta.Manufacturingb.Design→ Mataci.Consumer expectation→ reasonable consumer would expect it work a certainway but it didn'tii.Risk/U (Genie)iii.Restatement of version of risk/Uiv.Strategic pros and consv.Reasonable alternative design→ Matac→ P needs to prove
c.Failure to warni.Omission renders it dangerous1.Some jurisdictions you don’t need to prove that P would’ve read thedirections even if they were thereii.Non-obviousiii.Adequacyiv.Causationv.Difference from negligencevi.Pharma Failure to Warn (Learned Intermediary) Prescription drugs→ no duty togive direct warning to consumer, but rather healthcare providers13.Constitutional Torts→ Irvin (look at different immunities/charges)a.Basic idea→b.Qualified immunityc.Supplemental claimsd.Governmental immunity and official immunity (gov’t more relevant than sovereignimmunity)i.Shaker Heights