Torts & Personal Injury Law OUTLINE
I.
Chapter 1 - Introduction
A.
B.
Torts --
1.
2.
Negligence
3.
Strict (Absolute)
Duty
Breach of Duty
Causation
Damage/Injury
Objectives
1.
2.
3.
D.
Intentional
Elements
1.
2.
3.
4.
C.
Wrongful Injury
Protecting (Accountability)
Compensation
Deterrence
Tort Analysis -1.
From General to Specific!
2.
IRAC
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
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
Issues
Rule of Law
Application of Law to Facts
Conclusions
E.
General Tort topic
Intentional torts
Specific Tort
Battery
Issues framed by Tort
Customer strikes clerk
Rule of Law
Unconsented contact = Battery
Application of Law
Contact was unconsented
Conclusion
A battery occured
Resolutions
1.
Alternate Dispute Resolutions (ADR)
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F.
II.
Arbitration
Mediation
Mini Trial
Rent-A-Judge
Summary Jury Trial
Civil Case Chronology
1.
2.
3.
4.
5.
Post-Trial
Complaint
Answer
Discovery
Pre-Trial
Trial
Chapter 2 - Negligence - ** Failure to use Reasonable Care **
A.
Elements
1.
2.
3.
4.
B.
**Foreseeability**
1.
C.
Duty
Breach of Duty
Causation
Damage/Injury to Plaintiff
Foreseeable Plaintiffs Theory
Proving Breach of Duty
1.
2.
**Evidence**
Burden of Proof


3.
Prima Facie - Burden of proof for tort met
4.
Res Ipsa Loquitor - "Thing speaks for itself"
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D.
Civil - Preponderance
Criminal - Beyond Reasonable Doubt
Burden on Defendant
Tort wouldn't normally happen without negligence
Defendant in exclusive control of objects or actions
Defendant in better position to prove than Plaintiff
Negligence Per Se - **Tort in violation of Statute or Ordinance**
E.
Causation
1.
Cause in Fact -- Defendant Caused Injury
2.
Substantial Factor Analysis

Test for indirect causation
F.
Joint and Several Liability
1.
2.
G.
Contribution
1.
H.
Multiple Defendants
Simultaneous OR Sequential
Defendants share cost of judgment
Damages - Injury suffered as a result of tortfeasor's conduct/actions
1.
Compensatory - "Make the victim whole"
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Hedonistic
(1)
Joy of Life
General
(1) Pain and Suffering
Special
(1) loss of consortium
(2) related expenses
(3) lost wages
Economic/Non-economic
(1) lost wages
(2) medical expenses
(3) pain/humiliation
(4) Nominal
III.
Chapter 3 -- Special Negligence Actions
A.
B.
Vicarious - Liability of principal for agents
1.
Respondeat Superior - "Let the Master Answer"
2.
NOT for independent contractors
3.
Scope of Employment

Frolic and Detour - Responsible only for work related

Coming and Going - Not counted as 'work related'
4.
Motor Vehicle Liability

Owner vicariously liable for ANY authorized driver's
negligence
Premises - Occupier/Owner
1.
C.
Duties of Reasonable Care - Different

Trespasser - NONE

Licensee +

Attractive Nuisance +

Invitee ++
Negligent Infliction of Emotional Distress
1.
Elements
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Outrageous conduct
Should have reasonably anticipated possible injury
Significant & Reasonably Foreseeable injury
Constituting Breach of Duty to victim
Victim was Reasonably Foreseeable
2.
Requirements
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Physical manifestation
(1) Victim must suffer some actual physical ailment
to recover
Zone of Danger
(1) Victim must be in foreseeable 'Zone of Danger' of
tortfeasor's actions
Sensory Perception
(1) Victim must have seen/heard/felt event to have
suffered injury
Family Relationships Rule - **For Witnesses of injury
(1) Victim must be related to person injured to
receive damages
D.
Negligence Per Se - Tortfeasor's actions covered by Statute or
Ordinance
1.
IV.
Plaintiff must be in Class of Persons Protected by Statute
Chapter 4 - Defenses to Negligence
A.
Contributory (minority view) - Plaintiffs actions caused injury
1.
Plaintiff Response - "Last Clear Chance"

Plaintiff contributed BUT Defendant had "last clear
chance' to avoid Plaintiff's injury
B.
Comparative
1.
C.
Assumption of Risk
1.
2.
D.
V.
Elements

Plaintiff contributed to own injuries

Calculation of relative Plaintiff/Defendant % or
responsibility by Triers of Fact
Plaintiff assumed risk Voluntarily w/
Full appreciation of Danger involved
Statutes of Limitation -- Universal and Complete Defense
Chapter 5 - Intentional Torts - Injuries to Persons
Intentional Tort Elements
1) Action
2) Intent
3) Injury
A.
Assault & Battery
1.
Assault: - Intentional threat, show of force, or movement that
reasonably makes a person feel in danger.
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Threat of harmful or offensive contact
Victim apprehensive
Threat is imminent
2.
Battery - Actual harmful of offensive contact



B.
Non-consensual physical contact
Contact is harmful or offensive
Tortfeasor's intent
(1) Intent can be Transferred to 3rd Parties
Patient Dumping
1.
Lack of appropriate care and unreasonable transferring of
patients. [ covered under federal Emergency Treatment and Active
Labor Act (EMTALA) ]
C.
False Imprisonment - (Confinement)
1.
Elements
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


D.
Confinement w/o Consent
Intent to Confine
For an Appreciable time
No reasonable means to escape
2.
Confinement = Physical Barriers OR Express/Implied Threat
3.
Shopkeeper's Privilege

Can stop and detain suspected shoplifter
(1) Must have reason to believe crime
committed/attempted
Sexual Harassment -- Workplace Discrimination based on Gender
E.
Spoliation of Evidence -- Deliberate spoiling, hiding, or destroying
evidence relevant to a legal proceeding
VI.
Chapter 6 - Intentional Torts - More Injuries to Persons
A.
Infliction of Emotional Distress - Actions cause Mental Anguish
1.
Does not require Physical Manifestation (in most
Jurisdictions)
B.
2.
Intentional Infliction

Defined
(1) Outrageous Conduct
(2) Conduct is intended to cause severe emotional
suffering
(3) Conduct causes victim's suffering
3.
Negligent Infliction

Defined
(1) Outrageous Conduct
(2) Conduct is known (or reasonably should be
known) to cause severe mental anguish
(3) Conduct causes victim's suffering
Fraud and Misrepresentation
1.
Fraud

Defined
(1) Making false statements w/intent to mislead
(2) Statements are known by tortfeasor to be false
(3) Statements made to entice victim into
surrendering something of value
(4) Victim must rely on statements
(5) Injury to victim
2.
Misrepresentation - (almost the same)

Defined
(1) Making false statements w/intent to mislead
(2) Statements are known by tortfeasor to be false
(3) Victim must rely on statements
(4) Injury to Victim
3.
Malicious Prosecution (Accused)

Defined
(1) Groundless criminal prosecution
(2) Complaint made with Malice
(3) Acquittal/Dismissal of Charges
(4) Injury to Accused
4.
Abuse of Process (Victim)

Defined
(1) Misuse or Threat of Misuse of Legal Processes
(2) for Unlawful Objectives
(3) Injury to Victim
5.
Invasion of Privacy

Appropriation
(1) Use of name or likeness w/o consent

Unreasonable Intrusion
(1) Excessive or offensive invasion of seclusion and
solitude

Public Disclosure of Private Facts
(1) Communication of Private Information w/o
permission
(a) ** "Reasonable Person" would find
disclosure objectionable

6.
False Light in the Public Eye
(1) False attribution of Statements, Actions, or
Opinions
Defamation: Libel and Slander

Elements of Libel
(1) Written statement
(2) False and defamatory
(3) Publication to 3rd Party
(4) Injury to victim's reputation in the community

Elements of Slander
(1) Oral statement
(2) False and defamatory
(3) Publication to 3rd Party
(4) Injury to victim's reputation in the community

Public Figures - Different standard of protection

Slander Per Se - Some words/statements are
slanderous by nature
(1) Charge of criminal action/intent
(2) Statement harmful to business
(3) Implication of loathsome and communicable
disease

Truth and Privilege = Absolute Defense
VII.
Chapter 7 - Injuries to Property
A.
Trespass to Property
1.
Elements

Unauthorized entry to property

Intent

Interference with Plaintiff's exclusive use/enjoyment
2.
"Toxic Trespass" - Same as regular - applies above or below
ground

Many Regulated by Environmental Statutes
B.
Trespass to Chattel
1.
2.
C.
Elements

Unauthorized possession or interference of use of
property

Intent to dispossess or interfere

Interference with Plaintiff's exclusive use/enjoyment
Similar to Conversion
Conversion
1.
Elements

Depriving owner of possession

Intent to deprive or convert to own use

Owner's non-consent to possession and use
D.
Slander to Title, Commercial Disparagement, Defamation by
Computer
1.
Slander of Title

2.
Commercial Disparagement

3.
Elements
(1) False Statements about ownership of land
(2) Intent to hinder or damage owner's use of
property
(3) Communication (publication) to 3rd Party
Elements
(1) False Statements about goods, services or
business
(2) Intent to injure ability to use good, provide
services or conduct business
(3) Communication (publication) to 3rd Party
Defamation by Computer

Elements
(1) False Information about victim's Credit Rating
(2) Entering such date into a computerized
recordkeeping system
(3) Communication (publication) to 3rd Party
(4) Injury to ability to obtain credit
VIII. Chapter 8 - Defenses to Intentional Torts