Torts Outline - St Thomas

8/3/2019 Torts Outline - St Thomas

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Torts Outline

Torts Outline

1. Intent

1. A person acts with intent if they

i. Have the purpose of producing the consequence, orii. Know to a substantial certainty that the consequence will result from their actions.

2. Transferred Intent

i. Actor is liable for an intentional tort where he intends to commit one tort but instead

1. Commits different tort against same person,2. Same tort against different person, or3. Different tort against different person

2. Assault

3. An actor is liable to another for assault if

ii. He acts intending to cause a harmful or offensive contact with the person of anotheror a third person, or an imminent apprehension of such contact

iii. The other is thereby put in such imminent apprehension

4. Determined by

i. The reality of the threat

1. Words alone do not constitute actionable assault unless they are combined withthreatening actions or circumstances

ii. Imminence of action

1. Actor must be in a position to carry out the threat

iii. Plaintiffs apprehension

1. Plaintiff must be aware of the threat

3. Battery

5. An actor is liable to another for battery if


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iv. He acts intending to cause a harmful or offensive contact with the person of anotheror a third person, or an immediate apprehension of such a contact, and

1. Harmful Contact

1. Physical impairment including injury, illness, disease, impairment of bodilyfunction, and death.

2. Offensive Contact

1. Offends a reasonable sense of personal dignity

v. A harmful contact with the person of the other directly or indirectly results

3. Contact, for the purposes of an intentional tort, extends to things beyond onesperson

1. (e.g., cane, hat, car one is riding in, horse on is riding on, etc.)

6. Defenses

vi. Consentvii. Self-Defense

4. False Imprisonment

7. One is liable to another for false imprisonment if

i. He acts intending to confine another or a third person within the boundaries fixedby the actor, and

4. Confinement may be by

1. Physical Force2. Threat of physical force3. Duress4. Asserted legal authority

i. If the confined believe claimed authority, or if in disbelief, submitsnonetheless.

ii. His act directly or indirectly results in the confinement of the other

5. Confinement is defined as

5. Complete containment within boundaries fixed by the actor


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i. Confinement is complete although there is a reasonable means of escape,unless the victim knows of it

ii. The actor is not liable for false imprisonment by intentionally preventinganother from going in a particular direction, so long as there are otherplaces he can go.

iii. The other is conscious of the confinement or is harmed by it

5. Trespass

8. To Land

i. Cuius est solum eius es usque ad clom (et ad inferos).

6. Who owns the soil owns right up to heaven (and down to hell)

ii. One is liable to another for trespass, irrespective of whether harm to any legallyprotected interest results, if he intentionally

1. Enters land in possession of the other, or causes a thing or third person to do so,or

6. There is liability for trespass, even if the entrance is a mistake, such as whenthe actor

i. Believes he is in possession of the land enteredii. Believes he has the consent of the possessor of the land

iii. Believes he has some other privilege to enter or remain on the land.

2. Remains on the land, or

7. After a reasonable amount of time after being asked to leave

i. Ab initio

1. From the beginning

1. One who commits trespass by remaining on the land after losing the

privilege to do so is liable for trespass from the time of entry ontothe land, not just from the point of loss of privilege.

3. Fails to remove from the land a thing which he is under a duty to remove.

8. Can enter the land to remove said thing

iii. Defenses


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4. Necessity

1. To prevent harm to self or others (e.g., emergency landing of an aircraft)

9. To Chattels

iv. A trespass to chattel may be committed by intentionally

5. Dispossessing another of the chattel, or6. Using or intermeddling with a chattel in the possession of another

v. Requires actual damage or material interference

1. With inference, depends on the consequences of that interference

vi. Conversion

1. Akin to theft2. Intentional exercise of dominion or control over a chattel which so seriously

interferes with the right of another to control in that the actor may justly berequired to pay the other the full value of the chattel.

3. Determined by:

1. Extent or duration of actors control or dominion2. Actors intent to assert a right in fact inconsistent with others right of

control3. Actors good faith

4. Extent and duration of resulting interference with others rights of control5. Harm to chattel6. Inconvenience and expense caused to the other.

4. Purchase of a converted item from the actor makes one liable for conversion aswell.

6. Defenses

10. Insanity

vii. The insane can form intent and be held liable, although there condition may be afactor for consideration in determining damages.

11. Consent

i. At least an affirmative defense to the accusation that one has committed anintentional tort.

ii. Need not be expressed in words


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iii. Apparent consent (reasonable understanding of ones consent) is effective asconsent in fact.

iv. If an action does not appear likely to result in harm, is consented to, and harmresults, it cannot be used as a cause of action

v. Mistaking the nature of the invasion, or the extent of harm to be expected voids the

consent.vi. Consent to crime is a valid consent except when that crime protects a certainclass of persons irrespective of their consent (e.g., statutory sex laws, child laborlaws)

vii. Substituted consent

1. Parents, guardians, next of kin have some ability to give consent in situationswhere the person being acted on (usually medically) cannot give consent

2. Parens patriae

1. Power of the state to intervene in cases of abuse or neglect of dependants,

medical situations where an objective view of situation is necessary.

12. Self-Defense

viii. Non-Deadly Force

3. An actor is permitted to use reasonable force, not intended or likely to causedeath or serious bodily harm, to defend himself against an unprivilegedharmful or offensive contact or other bodily harm which he reasonably believesthat another is about to inflict intentionally upon him.

4. Is privileged even if the actor believes he can avoid the necessity of defending

himself

1. By retreat or otherwise giving up a right or privilege, or2. By complying with a command with which the actor is under no duty to

comply, or which the other is not privileged to enforce by the meansthreatened.

ix. DOES NOT ALLOW FOR RETALIATION

5. Privilege ends as soon as threat ends

x. Deadly force

1. An actor is privileged to defend himself against another by force intended orlikely to cause death or serious bodily harm, when he reasonably believes that

1. The other is about to inflict upon him intentional contact or other bodily harm,and that


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2. He is thereby put in peril of death or serious bodily harm or ravishment, whichcan safely be prevented only by use of such force

2. Privilege exists even if actor correctly and reasonably believes he cansafely avoid the necessity of so defending himself by

1. Retreating if attacked in his dwelling place, which is not also the dwellingplace of the other, or

2. Permitting other to intrude upon or dispossess him of his dwelling place, or3. Abandoning an attempt to effect a lawful arrest.

3. Privilege does not exist if the actor correctly and reasonably believes that hecan with complete safety avoid the necessity of so defending himself by

1. Retreating if attacked in any place other than his dwelling place, or in a placewhich is also the dwelling of the other.

2. Relinquishing the exercise of any right or privilege other than his privilege toprevent intrusion upon or dispossession of his dwelling place or effect alawful arrest.

4. Use of a firearm automatically construed as deadly force5. An actor may be privileged in self defense to put another in immediate

apprehension of harmful or offensive contact or confinement, which is beyond thelevel the actor is privileged to commit, if his act is intended and reasonablybelieved by him to be likely to do no more than create such an apprehension.

6. Defense of a 3rd party

1. Actor is privileged to defend a third person from harmful or offensive contactor other invasion of his interests under the same provisions and by the samemeans as those under and by which he is privileged to defend himself if theactor correctly or reasonably believes that

ii. The circumstances are such as to give the third person a privilege of selfdefense, and

iii. His intervention is necessary for the protection of the third person.

7. Negligence

13.3

xi. A person acts negligently if the person does not exercise reasonable care under allthe circumstances

14.6


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i. An actor whose negligence is an actual cause of physical harm is subject to liabilityfor any such harm within the scope of liability, unless the court determines that theordinary duty of reasonable care is inapplicable.

15. Prima Facie Case Components

i. DBCA

7. Duty

2. Defendant had a duty toward the Plaintiff, ordinarily the duty of reasonablecare

8. Breach

1. Defendant Breached his duty (e.g., didnt exercise reasonable care)

9. Causation

1. Factual

i. Breach of reasonable care was the factual cause of the damages ii. But for Ds act, or lack of action, damages would not have occurred

2. Legal (scope of liability); proximate

i. Ds act or lack of action was the legal cause, as well as the factual

cause, of damages to P

10.Actual Damages

3. There cannot be a negligence action for nominal damages

16.Standard of Care

ii. Vaughan v. Menlove

11.Standard for negligence is that of a reasonable person under the same or similar

circumstances

iii. US v. Carrol Towing

1. Owners Duty depends on

1. Probability of events causing injury (P)2. Level of severity of injury (L)


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3. Burden of adequate precautions (B)

i. B ~ P * Lii. B < P * L = Dutyiii. B > P * L = No Duty

iv. Pitre v. Employers Liability

2. Ordinary care does not require precaution against the improbable or unusual.3. Corrections to prevent reoccurrence of event are inadmissible in court.

v. Extent of the duty owed

1. To behave as a reasonable, prudent person2. Even though RPP standard is objective, no standard will work without

adaptability

4. To behave as a RPP under all of the circumstances

17.Duty

vi. Of reasonable care; orvii. To do a particular thingviii. Statements that there was no duty may suggest that there was no necessity to act

with reasonable care, or there was no need to do a specific act.

18. Negligence in Minors

i. 10

3. Childs conduct is negligent if it does not conform to that of a reasonable,careful person of the same age, intelligence, and experience

4. Under age 5, a child is incapable of negligence5. Adult activities are the exception to this rule, in which case children are held to

adult standard of care

19. Emergency

ii. 9

1. If confronted with an unexpected emergency requiring rapid response, this is acircumstance that is taken into account in determining whether the actorsconduct is that of an RPP.

20. Disability


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iii. Insanity and Negligence Liability

1. Brewing v. Am. Fam. Ins. Co.

1. 11

i. Insanity (any emotional or mental disability) is only a defense in anintentional tort case.

ii. Not considered in determining negligence unless the actor is a child

iv. Physical Disability

2. 11

2. Negligence is determined by the standard of a reasonable prudent person withthe same disability

3. Haley v. London Electric

1. One must act in expectation of disabled, incompetent, children, and elderly,and act in accordance to that knowledge to establish reasonable care.

v. Intoxication

4. Not a defense in negligence liability, unless involuntary

21. Negligence per se

vi. In itself

1. Violating a statute designed to protect a particular class of victims

vii. Brown v. Shhyne

1. Injury must arise from negligence2. Causal nexus btw breach of the statute and the injury is required 3. License to practice medicine requires no additional skill or immunity to injury on

the part of the patient.

1. When practicing illegally, if injury results from failure to meetstandard of professional care of licensed professionals, patient mayrecover.

4. Purpose of licensing statute to protect public from unfounded assumptions of skill


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1. If one is in violation of statute and acts without their license in attempting toprovide medical care, they shouldnt complain if their competence as amedical practitioner is called into question

viii. More is involved in Negligence per se than merely breaking the law.

5. Violate a duty with respect to the type of injury that actually results

1. There must be actual damages.

i. Injury must be of the type that the statute was intended to protect against.

6. Causation

2. Breach of statutory duty

ix. 14

7. Violation of a statute is negligence per se when person injured is in class ofpotential victims the statute intends to protect, and

8. Harm done was of the type the statute intended to prevent

x. Failure to adhere to statutory standard, although not necessarily proof of negligenceper se, can be used as evidence of negligence

xi. Tedla v. Ellman

1. Danger of Compliance will excuse liability for negligence per se.

1. It is unreasonable to apply a statute to achieve an absurd result

xii. 15

2. An excused violation of a statute is not negligence per se

1. Excuses

i. Violation is reasonable in light of actors childhood, physicaldisability, or physical incapacitation

ii. Actor exercises reasonable care in attempting to comply with statuteiii. Actor neither knows nor should know the standards that should make thestatute applicable

iv. Violation due to confusing nature of statutes presentation to thepublic

v. Actors compliance with the statute would involve greater risk of harmto the actor or others than non-compliance


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2. Not a comprehensive listother viable excuses may apply

22. Custom and expert testimony

xiii. Dempsey v. Addison crane

3. Either party may present evidence of customary behavior when relevant toquestion of reasonable care

4. what is usually done may be evidence of what ought to be done.

1. Accepted practices of craft establish what should be done by RPP 2. Standard of RPP may not match customary behavior

i. Fact finder must decide whether actions were w/I standard of care ii. 13

3. Certain professions require exercise of special skill and judgments

i. E.g., Doctors, etc.ii. 12

2. Applies for those who hold themselves out to be professionals 3. Those who, by their experience, could be considered a professional

1. E.g., mechanics, etc.

iii. Determined by reasonable actions of same kind of professional in same

community

4. For medical malpractice, community is defined by the state

xiv. Opinion evidence isnt admissible as to ultimate issues

5. Expert witness may give expert opinion on technical matters beyond normalknowledge of the jurors, after witness credentials have been established

xv. Medical malpractice

1. Jury verdict must be supported by some expert testimony.

xvi. Shikret v. Annapolis

1. Use of an older and less accepted form of treatment is not a breach or thestandard of care in and of itself

23. Res Ipsa Loquitur


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xvii. The fact finder in a negligence case can draw the inference that harm was caused bynegligence when

1. Event doesnt ordinarily occur without negligence2. Other responsible causes, including conduct oif P and 3rd persons, are

eliminated by evidence3. Indicated negligence is within scope of Ds duty to P

xviii. It is possible for a defendant to show he was not at fault, but fail to show how eventoccurredjury might still decide in this type of case that the defendant wasnegligent.

xix. Swiney v. Malone

1. D is liable, so long as evidence doesnt destroy Ps claim that event couldnot have happened without some kind of negligence, and D was in control of theagent causing event, even if D wasnt acting negligently.

2. Res judicata

4. The matter has been decided5. Cannot sue someone on claim contrary to case already settled

iv. D cannot sue P for negligence after D is found negligent

xx. To eliminate

3. Incontrovertibly and conclusively showing NO duty to the claim, or4. Showing event regularly occurs without negligence

5. Incontrovertible and conclusive proof that Ps or 3rdpartys negligence wascause of injury

xxi. D can win verdict if case reaches equipoise position

1. Requires substantial burden of proof

xxii. Ybarra v. Spangard

1. Multiple Ds controlling multiple instrumentalitiestoo busy for res ipsa2. Injury in an area of the body not in treatment, and in a healthy body, creates

inference of negligence3. Respondeat superior

6. Let the superior answer

i. Employers are liable for negligence of employees

24. Causation


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xxiii. Proximate Cause

4. Limitation law place on responsibility for consequences of ones behavior

7. Scope of Liability

i. Direct Causation Theory

1. Direct consequences are those that follow in sequence from the act,without any intervening forces in play.

5. If one can foresee that ones conduct creates a risk ofharm to another, andfails to alter that conduct to decrease or eliminate that risk, they are negligent

8. If they cannot see the risk, or do correct and injury results anyway, nonegligence

6. The scope of liability ordinarily extends to, but not beyond

1. The scope of foreseeable risks

ii. Limits foreseeable consequences

1. If P is outside zone of foreseeable risk, harm to P is not foreseeable, andarguably, there is not duty of reasonableness.

2. All direct or directly traceable results of Ds act, and to (but not beyond)

those indirect consequences that are foreseeable.

xxiv. Cause in Fact

7. Where an event is found to be as likely as not to occur with the contribution ofDs act, court must rule for D.

8. Act will be CiF of an event if

1. Part of a number of antecedent events that culminated in the event inconsideration, and

2. The absence of this act or failure to act would diminish probability of that

event happening

iii. But for test

1. i.e., but for Ds act, Ps injury would not have occurred

9. Anderson v. St. Paul Railroad


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3. Any Ds conduct is a responsible cause in fact of injury, if it was materialelement and substantial factor in bringing about that injury

iv. Even if someone elses actions were a substantial factor in bringingabout result, that fact does not absolve D from liability.

10.Summers v. Tice

4. Plural Cause Liability

i. When there are many causes of one injury, all actors who could havecontributed to the injury are liable, unless they can prove they are not.

5. Material Element

i. Some event that happened before the injurious event, may be enough to

prove causation if injury would not have happened without it.

6. Substantial Factor

i. But for this event, the injury would likely not have happened.

11.876

7. A person is liable if he

i. Induces or orders such conduct, or

ii. Knows that others conduct constitutes a breach of duty, and acts withthat knowledge to assist another.

xxv. Apportioning Damages

12.When 2 causes concur to bring out a result

8. Both actors are held liable if it cannot be clearly indentified who caused theinjury.

9. Likewise, if the court cannot determine out of a group of individuals acting inconcert which are liable, they will treat the group as though they are all liable

i. When apportioning damages, they are generally split by percentage ofliability

xxvi. Liability for unseen consequences

13.Daly v. Bergstedt


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10.D will be held liable for injuries that operate on a concealed medicalcondition, which D could not foresee

11.Only liable for extent to which Negligent conduct has aggravated the existingcondition, not for the condition as it existed before the incident

xxvii. Intervening Forces

14.441

1. A force which actively operates in producing harm to another after theactors negligent act or omission has been committed.

15.440

1. Superseding cause

i. An act of a 3rd person or other force, which by its intervention, preventsthe actor from being liable for harm to another, which his antecedentnegligence is a substantial factor in bringing about.

16.435(2)

2. Actors conduct may be held not to be the cause of harm if, after the eventand looking back to the harm, it appears highly extraordinary that it shouldhave brought about the harm.

17.19

1. The conduct of a defendant can lack reasonable care insofar as it foreseeablycombines with or permits the improper conduct of the plaintiff or third party.

18.Once it is determined that D has a duty to guard against intervening event, itcannot be held as an intervening cause which negates liability

19.Normal Intervening Forces

1. Some incidents of intervening force which are not exactly foreseeable in thesense that they are not highly unlikely in human experience, so they arecovered in the scope of the actors negligence

20.Insanity and Suicide

1. Suicide

i. Not liable unless


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1. D is a hospital worker or mental health institution with reason to know Phas mental health risk

2. Isnt a healthcare pro, but under circumstances, had duty to preventsuicide

3. Suicide is caused by pain, depression, despair, or madness resulting from

injury due to Ds negligence

2. Insanity

ii. D is liable when P hurts himself during unconsciousness or deliriumbrought on by injury

1. If sane, or in lucid interval, suicide is considered abnormal, intervening,and voluntary choice. D is not liable

3. Intentional Torts

iii. IIED

1. D is liable even for voluntary suicide attributed to his tortious act

21.Unforeseeable intervening forces

4. D is not liable for unforeseeable, abnormal forces of nature 5. Intentional or criminal acts which no reasonable person would be expected to

guard against.6. 36

7. Decision that Ds conduct was not a proximate cause of the result broughton by intervening force means D wasnt negligent, or Ds negligencewas not addressed to such a risk

8. 432(1)

iv. Except as stated in (2), actors neg conduct is not a substantial factor inbringing about harm if harm would have been sustained even if actorwasnt negligent.

9. D is liable if act concurs with act of God.10.If unforeseeable intervening cause changes result but still occurs in a way

actor should have expected, then actor is liable for that result.

xxviii. Issues in Causation

22.Problem connecting Ds negligence to Ps injury

1. Even if you have D who breaches duty of care, you have to show that thatbreach was cause of injuries to P.


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2. Ordinarily taking a precaution makes the absence of a precaution a materialelement in determining negligence liability and causation

23.Hotson v. East Berkshire

1. Ds failure to take care increased Ps risk and did deprive P of chanceto avoid injury2. Failure to act does not create a but for instance of causation of injury

25. Defenses to a negligent act

xxix. Contributory Negligence

24.Butterfield v. Forrester

1. Ps negligence is a superseding cause of injury shielding D from liability

25.Smithwick v. Hall & Upson

1. P can be negligent about various things, but if not about the injury suffered,then no contributory negligence

i. Even if P increased gravity of injury, it would not constitute contributorynegligence unless it was through an act of negligence which directlyrelated to the injury he suffered.

xxx. Comparative Liability/Negligence

26.1

2. Apportioning liability to 2 or more persons, regardless of the basis of liability

27.Comparative Negligence

1. Pure

i. 13 states (AK, AZ, CA, FL, KY, MI, MS, NM, NM, NY, RI, WA, SD)ii. Culpable conduct attributable to P, including contributory negligence shall

not bar recovery, but shall limit recovery according to degree of P liability iii. No amount of Ps contributory negligence will bar recovery, unlessPs negligence constitutes the sole proximate cause of the harm.

2. Modified

i. Some degree of contributory negligence will bar all recovery, and a lesserdegree will decrease amount recovered


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1. 50% rule

1. Bars Ps recovery if Ps contributory negligence is greaterthan all of Ds combined negligence

2. Diminishes recover below that

2. 49% rule

1. Bars Ps negligence if equal to or more than D s negligence2. Apportions recovery if allowed

xxxi. Last Clear Chance

28.If D has last clear chance to avoid injury to helpless P, then D must use ordinarycare to avoid harm to P

29.Ps contributory negligence putting himself in position of helplessness is no

defense30.D is liable only after time in which she could have discovered Ps danger andhelpless condition and could have avoided injury after that time

31.479(b)(1)

3. Conscious last clear chance

ii. Rule of clear peril

4. Unconscious last clear chance

i. D is not aware of helpless P

3. Had D exercised due care, she would have seen Ps predicament andappreciated risk of danger in time to avoid accident.

32.Comparative negligence principal dressed up in the language of proximatecausation

xxxii. Assumption of Risk

1. Voluntary exposure to risk

5. Essentially contributory negligence on part of the P

2. No-duty rule

1. Applied to common, frequent, and expected risks

3. AR requires


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1. Knowledge of danger2. Appreciation of danger3. Voluntary exposure

4. 496(a)(c)

1. Tacit or implied agreement to remove responsibility/liability from defendantand to take on the risk of injury to oneself

ii. D is removed from liability due to

1. Dangers inherent in activity itself make avoidance of risk a non-duty2. Ps knowledge of those dangers and voluntary exposure to them.

5. 4 types of AR

2. Express

iii. Inferred from writing

1. Liability waiver

iv. Implied

1. Primary

1. Voluntarily accepts known risks involved in situation, and D has no

duty of care.2. Either D had no duty to P, or did not breach duty owed

v. Secondary

2. Strict

1. Voluntarily and perhaps reasonably encounters a known riskaccompanied by Ds negligence

2. Doesnt exist except in opinions criticizing AR

3. Qualified

1. P unreasonably accepts known risk in pursuing a particular course ofconduct

vi. In most states, express and implied primary are upheld, and secondary is apart of contributory negligence


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6. Danger invites rescue

3. One is not liable to injury to another incurred during their rescue

26. Multiple actors

xxxiii. Joint Torts

7. D1 and D2 act in concert to bring about wrongful act8. If multiple Ds are liable for an injury, then they may be held jointly responsible

for damages

1. Not more than the total amount of the judgment.

i. May be split between Ds, or one D may pay all.

9. Joint and Several liability

2. P has more than one source from which to recover

i. If injuries are excessive, resources of D1 may not be sufficient, butresources of D1 + D2 may be enough to pay damages, or at least covermore of the Ps injury.

3. If one D may be judgment proof, others may be solvent, or have insurance.

10.A first tortfeasor is liable for aggravations of an injury, and a second tortfeasor

takes their victims as they find them.

xxxiv. Concurrent Torts

1. Individual acts of D1 and D2 produce a single indivisible injury

1. Both Ds held jointly and severably liable for injury to P.

2. Indivisible Injury

1. Injury where it is not possible to identify different causes for different parts of

the injury

i. 87(g)

2. If the injury is indivisible, then both Ds will be held equally liable

i. Damages apportioned under 17


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xxxv. Intervening Torts

3. D1s negligence not only creates harm, but causes more harm as a result ofD2s negligence.

3. Severable liability

i. Although one D may be liable for entire amount of harm, other D mayonly be liable for part of the harm

xxxvi. Vicarious Torts

4. Employer is liable for torts committed by employee during course and scope ofhis employment. Employee is also liable.

4. Respondeat Superior

i. Let the superior respond.

xxxvii. Joint and several liability

5. Operates

5. Where Ds act in concerted action to commit tort6. In about 14 states, whenever more than 1 tortfeasor is involved 7. Some states apportion liability

i. Mjore or less to degree of fault

8. In some states, if P is completely innocent, joint and seval applies9. Some states only apportion to certain kinds of cases

i. Medical malpracticeii. Products liability

10.Some apportion for non-economic damages, but join for economic damages

xxxviii. Subrogation

6. Because Ps insurance has already paid for damage, if P wins settlement andis paid by Ds insurance, P must endorse check to own insurance company.

xxxix. Indemnification

1. An otherwise blameless D2 may be held liable to P because D1 was liable.2. In such cases, D2 may be able to recover from D1 everything paid to P


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3. Happens in vicarious liability

1. Seldom sought by employers due to possession of insurance

4. Equitable indemnity

1. Retailer who sells a defective product is passively negligent to customer, mayfile suit against manufacturer

5. Contractual indemnification

xl. Contribution

1. P recovers total judgment against two Ds from D1

1. Most states permit D who has recovered more than their share to recover from

D2

i. Damages apportioned due to fault in the case

4. UATRA 7

2. 457

ii. If a negligent actor is liable for injury, he is also liable for injuryaggravation due to an attempt to aid injured person

8. Damages

27.P must pleas and prove all losses in same trialcannot got back later to make anotherclaim for the same injury

xli. Single Recovery Rule

2. Same as Res JudicataFINALITY

xlii. Puts certain hardship on P

1. Cannot take into account future complications

3. Lost wages, premature death, necessary surgeries

2. Can recover with preponderance of evidence for future damages if they arereasonably probable


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1. Under single recovery rule, cannot go back to claim for future damages, and ifno future damages occur, then just get to keep the money

xliii. Actual past damagesspecial damages or specials xliv. Future Damagesgeneral damages or generals 28. Compensatory (actual)

i. Meant to provide some compensation to someone who suffers from an injury ii. 3 components

3. Medical (economic)

1. Expenses due to injury in terms of medical care

4. Lost Earnings/Capacity (economic)

1. Income lost due to the injury

i. Past loss before tie of trial

2. Lost capacity is loss of future earning potential

i. P must prove the loss of ability to continue making earnings as he wouldhave had he continued working without injury.

ii. So long as damages are for some injury, these are not taxable

5. Pain and Suffering (non-economic)

3. Can cover a variety of things

i. Physical pain from impact of accident, ongoing pain of wound, long termdiscomfort, pain from medical treatment

ii. Mental suffering

1. Humiliation, anguish, frustration at dealing with disability, fright fromtrauma, fear of reoccurrence, depression from trauma, shock

4. McDougald v. Garber

iii. Loss of enjoyment of life

1. Also called Hedonic Damages2. Compensable3. Some view this category of damages as separate from P&S


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1. Compensate for limitations on ones life due to injury

iii. No-duty rule

6. Torts generally do not permit recovery of purely economic damages

29. Nominal

iv. For intentional tortsv. Even without showing damagesvi. Trivial sumvii. Not usually recoverable in negligence

30. Punitive

i. Punish D for especially egregious conduct

1. wanton and malicious behavior

ii. Make an example of Diii. Deter future similar conductiv. Mot awarded on account of injury or sickness or emotional distress

1. Therefore, taxable as income.

v. Requires clear and convincing evidence , rather than a preponderance offacts

vi. Haslip

1. Should establish 2 tiered approach to awarding punitive damages

5. Definite and meaningful restraints on the jury6. Size of the award in a particular case

vii. BMW v. Gore

2. Punitive Damages Signposts

1. Notice of penalties you might face determined by

iv. Degree of reprehensibility of conductv. Disparity between punitive damages award and harm/potential harm

suffered by Pvi. Difference between Punitive award and civil penalties authorized or

imposed in comparable cases


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31. Future Payments

viii. In some jurisdictions, time value of money is taken into account, so that if it isinvested wisely, it will be equal to what would have been lost over that period oftime.

32. Defenses/damage strategy

i. For loss of property

3. Can recover cost

ii. Defensive strategy

1. Children

2. Foreseeability of risk

2. Charitable Immunities3. Family Immunities

1. Spouses

i. Over half of states have eliminated spousal immunity

2. Siblings

i. No immunity

3. Statute of limitations

i. After statutory period has lapsed, D may raise motion to dismiss

4. If not raised, it is deemed to have been waived

4. Discovery rule

ii. Statute of limitations is tolled until P discovers or should have discovered

that he is injured by someone elses misconducts

9. Legal Latin

33.Ab initio

iii. from the beginning


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4. One who enters onto land with consent or other privilege but remains after losingthat privilege is liable for trespass ab initio from the time of the entry ontothe land, not just from the point of the loss of privilege.

34.Cuius est solum eius es usque ad clom et ad inferos

1. for whoever owns the soil, it is theirs up to Heaven and down to Hell

5. Trespass applies to the area both above and below the earth one possesses.

35.De bonis asportatis:

iv. Of carrying away goods

2. Deals with trespass to chattels, and the unlawful taking of someone elsesproperty

36.In loco parentis:

v. In place of a parent

1. When certain of the rights and responsibilities of parents are temporarilyconferred on others they are said to act in loco parentis

37.Parens patri:

vi. Parent of ones country (or Father of his country )

1. This refers to the right and duty of sovereigns and states to act in a protectivemanner toward their people as parents do toward their children.

2. Applies in particular to infants, idiots, and lunatics

38.Quare clausum fregit:

vii. Why one broke the close

1. Deals with trespass

39.Vi et armis

viii. By force and arms

1. Any tort in which aggressive force is used by one upon another.

40.Res Judicata


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ix. A matter already judged

1. One cannot file a claim for a matter which has already been settled by the court

41.Negligence per se

x. Negligence in itself

1. Relates to negligent acts where one violates a statute protecting a particular classof citizens

42.Res Ipsa Loquitur

xi. The thing speaks for itself

1. The fact finder in a negligence case can draw the inference that harm was caused

by negligence when

1. Event doesnt ordinarily occur without negligence2. Other responsible causes, including conduct oif P and 3rd persons, are

eliminated by evidence3. Indicated negligence is within scope of Ds duty to P

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Torts Outline - St Thomas

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