1.
Intentional Torts
a.
Battery
i.
ii.
iii.
iv.
b.
2.
3.
Elements
Nevada battery
Consent
1. Implied or express
Intent
1. Dual
2. Single
3. Transferred
4. Nevada intent
Assault
i. Elements
c.
False Imprisonment
i. Elements
ii. Nevada FI
d. Trespass to Land
i. Elements
1. Intent
2. Damages
3. Nevada
e. Trespass to Chattel
i. Elements
ii. damages
f.
Conversion
i. Elements
ii. damages
iii. Nevada
Defenses to Intentional Torts
a.
Self Defense
i. Elements
ii. Nevada
b. Defense of Property
i. Elements
ii. Nevada
c.
Shopkeeper’s privilege
i. Elements
ii. Nevada
d. Consent
i. Nevada
e. Public Necessity
i. Elements
f.
Discipline
i. Elements
ii. Nevada
Negligence
a.
Duty
i. Standard of Care
1. Dangerous instrumentalities
2. Emergencies – can be defense to negligence
3. Physical impairments
4. Sudden incapacitation
5. Adult Standard
6. Children
7. Professionals
ii. Nevada Notes
1. No negligent supervision cause of action
2. Duty to 3rd party
3. Negligence as a matter of law
b. Breach of Duty
i. Foreseeable Risks – zone of danger
ii. Statutes
iii. Private standards
iv. Custom – can also be defense to negligence
v. Res Ispa Loquitor instruction
vi. Hand test
vii. Negligence per se – cuts off at breach
1. Elements of NPS and damages
c.
Actual Harm
i. Damages recoverable
1. Past and future medical expenses
2. Loss of wages and earning capacity
3. Pain and suffering (emotional harm)
4.
4. Damages for any other specifically identifiable harm
5. Property damage
6. No punitive damages bc no willful, wanton, reckless state of mind, that would be intentional tort.
ii. Duty to mitigate: Plaintiff must not act in a manner that makes damages worse - i.e. not going to the doctor to get well. Defendant is
not liable for damages where plaintiff did not mitigate.
d. Factual Cause
i. But For
ii. Substantial Factor
iii. Duplicative & Pre-emptive cause
iv. Causal Apportionment
v. Fault Apportionment
1. Joint and several could be used to solve ‘but for’ problem but when either could have caused harm, it is impossible to tell.
Both must be held responsible.
vi. Lost Chance
1. Nevada
e. Proximate Cause:
i. Scope of Risk standard
ii. Scope of Liability Test
iii. Thin Skull Rule
iv. Intentional Intervening Acts
v. Negligent Intervening Acts
vi. Palsgraf
1. Cardoza
2. Andrews
vii. Nevada
Defenses to Negligence
a.
Fault of the plaintiff
i. Contributory Negligence
ii. Comparative Fault
1. Pure - ∏ always recovers something
2. Modified - ∏ recovers only if not over 50% at fault
3. Exceptions to comparative fault defenses
a.
Policy factors
b. Children do not have a duty to protect themselves from abuse
c.
Rescue Doctrine – Rule of law holding that one who sees a person in imminent danger caused by the
negligence of another cannot be charged with contributory negligence
d. Last Clear Chance – if the D discovered or should have discovered P’s peril, and could have reasonably avoided
it, the p’s earlier negligence would neither bar nor reduce the P’s recovery
i. Conscious, ∏ recovers
ii. Unconscious ∏ recovers
iii. Inattentive ∏, if both inattentive then no recover
iv. Discovered peril – applies last chance rules only if P actually did discover P’s peril. These can only
be implied when P is helpless and can’t remove self from harm.
e. Defendant’s reckless or intentional misconduct – Contrib neg is no defense to willful, wanton, or reckless torts,
defined as involving “utter indifference to or conscious disregard for the safety of others”
f.
Plaintiff illegal activity
b. Assumption of Risk
i. Contractual or Expressed Assumption
1. Tunkl Factors
ii. Implied
1. Primary – must have voluntarily assumed risk - inherently dangerous activities, activity where the risks are obvious to
reasonable person – usually complete bar to recovery usually. I.e. flag football
2. Secondary – must have known of risk - may encounter risks that you yourself have a duty to prevent, encountering risks
you should have seen. i.e. taking shortcut across railroad track and getting your foot stuck in the switch (a duty is
breached, but plaintiff continued and put themselves in way of breach)
a.
Sports cases – foul ball rule handled by comparative fault, hot dogs cannons are not a inherent part of a
baseball game.
iii. Nevada just uses comparative fault instead of assumption of risk.
c.
Not on the merits
i. Statute of Limitations - Designed to promote certainty in people’s lives. And to keep prospect of stale evidence from polluting the
courts. Can be tolled. Usually there is something kind of event that makes it appropriate to suspend the running of the limitations.
ii. Statute of Repose - Sets outer limit on the right to bring civil action. Total amount of time you have to bring the action. Not subject
to tolling. In Nevada, the new total amount of time (statute of repose) for construction defects is 6 years.
iii. Traditional Rule
iv. Discovery Rule
v. Latent Potential Harm
vi. Tolling and Grace Periods
1. Tolling for Minors
2. Tolling for unsound mind
3. Grace Periods
vii. Nevada SOL
1. Malpractice SOL
2. Sex abuse of minors
viii.
ix.
5.
3. Statute won’t run if
4. Actions by or for state
5. Death of person entitled to bring action
6. Inaction will toll statute
Nevada Repose
1. 6 years after substantial completion of improvement to property can recover for:
2. Clocks start ticking
Federal Preemption - Federal law can preempt state law when it is expressly written, or can be implied if the federal law “left no
room” for state law, or if the state and federal laws directly conflict (supremacy clause).
1. Supremacy of Federal Laws
Special Relationships
a.
Special relationships list here
b. Common carrier – heightened duties
c.
Landowner
i. Traditional Rule
1. Trespasser – they come on your land with no permission, you owe them nothing!
2. Licensee – you’ve given the person permission to come on your land but no duty originally. Over time, if there was a
hidden defect, you have a duty to warn, but not to refair the defect. For trespasser and licensee,
3. Invitee
ii. Modified Traditional Rule
1. Social guest
-Open and Obvious Hazard Doctrine – (Comparative Fault)
-Attractive Nuisance Doctrine
d. Landlord
i. Exceptions
e. Innkeeper – (heightened duties)
i. Nevada
f.
School/student
g.
Firefighter Rule
h. Recreational Use statute
i.
Good Samaritan Law
j.
Medical Malpractice
i. Elements
ii. Expert Testimony
1. Custom of industry
2. Two part test
iii. Good Samaritan Statue applied to health care
iv. Informed Consent
1. Materiality:
v. Professional Standard (Nevada uses this)
vi. Res Ispa Loquitor in Med Mal Cases
vii. Nevada Med Mal Statutes
1. Cap
2. Liability several
3. Requires a claim to be dismissed unless expert affidavit
a.
Exceptions
b. Application
4. Rejects locality rule for judging malpractice
5. Res Ipsa instruction if:
a.
Exceptions
6. Informed Consent Requirements
7. Implied Consent Requirements
8. Lost Chance
k.
Legal Malpractice:
i. Elements
l.
Limits on Duties
i. Immunities
1. Sovereign Immunity
a.
Federal cases
b. State cases
c.
Off Duty
d. Government contractor immunity
e. Nevada state immunity cases
2. Common Law immunities in Nevada
a.
Absolute immunity
b. Qualified immunity
i. Executive officers
ii. Board members
c.
Exceptions
3. Public Duty Doctrine
a.
Elements
ii. Nonfeasance/Misfeasance
1. Common law rule
m.
n.
o.
p.
2. Exception to no duty to act rule
3. Government actors
iii. Contract and Duty
1. Misfeasance in performance of a contract
2. Nonfeasance in performance of a contract
3. Undertaking
4. Promises to third persons
5. Actions as promise or undertaking
iv. Duty to protect from 3rd persons
1. Defendant’s relationship with the plaintiff
2. Specific Harm
3. Prior similar incidents test
4. Balancing test
5. Totality of circumstance test
6. Lack custody, no duty
7. Nevada
8. Defendant’s relationship with dangerous person
a.
Special relationships
b. Dram Stop Statutes
c.
Negligent Entrustment
Special Kinds of Harm
i. Emotional Harm – IIED
1. Elements
ii. Negligent Infliction of Emotional Distress
1. Zone of Danger Test
2. Foreseeability Test: Adopted by most states
3. Duty of care to protect emotional well being independent of physical harm
4. Negligent infliction as ordinary negligence (didn’t cover)
iii. Toxic exposure (didn’t cover)
iv. Prenatal harm
v. Wrongful birth
vi. Wrongful death
1. Nevada
vii. Survivor Actions
1. Nevada
Strict Liability
i. Vicarious Liability
1. Respondeat Superior
2. Coming and going rule
3. Intentional torts of employees
4. Independent contractors
ii. Common Law strict liability
1. Animals
a.
Trespassing animals
b. Abnormally dangerous animals
c.
Wild animals
2. Impoundments, nuisances
a.
Escaping impoundments
b. Nuisance
3. Abnormally dangerous activities
a.
Two part test
b. Common usage
Products Liability
i. History, Rational and Scope
ii. Prima Facie Case
iii. Manufacturing Defects
iv. Design Defects
v. Prima Facie Case
1. Warning or Information Defects
vi. Defenses and Defeats
1. Comparative Fault and Assumption of Risk
2. Misuse
Defamation: Libel and Slander
i. Common law rules
ii. Constitutional Constraints on Free Speech
iii. Communicating Commerically Harmful Impressions
iv. Misrepresentation