Torts Outline
RES IPSA
Theory: D was negligent in that they ______, which caused P’s injury
Duty: General duty of care (NO IRAC)
Standard of care: Reasonable person/ possible reasonable professional in the same or similar
circumstances (NO IRAC)
Breach: Type of harm that would not have occurred but for the negligence of someone, D had
exclusive control of the situation
Cause: But for, not likely to be disputed (NO IRAC)
Proximate Cause: Not likely to be disputed either because it’s foreseeable (NO IRAC)
NEGLIGENCE PER SE
Theory: D was negligent in that they _______, which caused P’s injury
Duty/Standard of Care: Because there is a governing statute, proving to the statute to be
relevant will establish duty/ standard of care. To prove stat is relevant must ask if D is in the class
of people the legislature sought to protect, and if the injury is in the class of people the legislature
sought to protect against.
Breach: If the statute is relevant, then need only prove that they violated to establish breach (NO
IRAC)
Cause: Substantial factor
Proximate Cause: Stat shows proximate cause (NO IRAC)
PUBLIC DUTY DOCTRINE
Theory: The city was negligent in that they failed to protect, which caused injury
Duty: Need 4 factors: Promise of an affirmative action, Appreciation of the risk, Direct contact,
Justifiable Reliance
Standard: Reasonable standard of care given by a municipality under the same or similar
circumstances (NO IRAC)
Breach: When did not take action they fell below they standard of care (NO IRAC)
Cause: Substantial factor
Proximate Cause: Non-issue because warning made it foreseeable, within the original risks that
made the conduct negligent (NO IRAC)
PREMISES LIABILITY
Theory: D was negligent in that they blank, which caused P’s injury
Duty: In New York, property owners have a duty to take reasonable care to make safe conditions
they knew or should have known about, can add about LIT
Standard/Breach: Reasonable landowner under the same or similar circumstances. Fell below,
would have taken extra steps
Cause: Substantial factor
Proximate: Foreseeability
DUTY TO RESCUE
Theory: D was negligent in that they blank, which caused P’s injury
Duty: Did D have a duty? No duty to rescue, unless voluntary assumption of risk/ special
relationship
Standard: Reasonable person
Breach: Reasonable person would have taken steps to assure
Cause: Substantial factor
Proximate: Foreseeability
MEDICAL MALPRACTICE IN PROCEDURE
Theory: D was negligent in that they ___, which caused P’s injury
Duty: Doctors owe a duty of reasonable care to their patients
Standard: Standard is degree of care, knowledge, and skill ordinarily possessed and exercised in
similar situations by the average member of the profession practicing in the field in the relevant
geography.
Breach: Did fall below this standard? (Only IRAC if know the standard given)
Cause: Substantial Factor
Proximate Cause: Foreseeability
DOCTRINE OF INFORMED CONSENT
Theory: D was negligent in that they blank, which caused P’s injury
Duty: Doctors owe a duty of reasonable care to their patients
Standard: Doctor/ Consumer standard
Breach: Did fall below this standard?
Cause: Substantial/But for – use judgment at the time
Proximate Cause: Foreseeability
EMOTIONAL DISTRESS INJURIES
Theory: D was negligent in that they blank, causing P’s emotional distress when they witnessed
blank family members injury.
Duty: In NY to satisfy duty requirement P needs to have been in the zone of danger, and an
immediate family member
Standard/Breach: Reasonable standard given by blank in the same or similar circumstances.
Breach when fall below this standard of care
Causation: Substantial Factor
Proximate Cause: Satisfied by proving duty because if you’re in the zone of danger then it’s
foreseeable
PRODUCTS LIABILITY
Theory: D is a seller of a product that possessed a ____ defect, and that defect caused P’s injury.
Issue: Sufficient evidence
Rule: Definition/ Rule
Application
Conclusion
Negligence
Negligence - is conduct that falls below reasonable care established by law for the
protection of others against unreasonable risks of harm.
Theory Of (a) Case – The defendant was negligent in that they did something or failed
to do something, which caused P to sustain an injury
General Negligence Answer Structure
A. To show Prima Facie cause of action, the plaintiff must prove every element of their
theory
B. To show Prima Facie cause of action, the P must establish by the preponderance of
the evidence that: (1) the defendant owed a duty of care to the P (2) The negligent act or
omission must be within the scope of duty. (3) The defendant breached such a duty (4)
the breach caused the injury (5) the negligent act was the proximate cause of the injury.
 To establish breach: The Plaintiff must show that the defendant’s conduct fell
below the standard of reasonable care.
Negligence Per Se – is a legal doctrine whereby an act of negligence violates a statue. To
prove negligence per se, the plaintiff must establish by the preponderance of the evidence
that:
(1) the plaintiff is among the protected class of people that the statue sought to
protect and
(2) that the injury suffered was caused by the harm against which the statue
designed to protect
(B) Premises Liability – arise from landowners duty to reasonably protect visitors
2 Jurisdictions – (1) NY has a general duty of reasonable care.
(2) Trichotmy - Invitee = is someone who enters the land in response to an expressed or
implied invitation from the landowner, including customers at a retail store or shopping
mall. Licensees = A person who enters the premises with the landowners expressed or
implied permission for his own purpose rather than for the landowners benefit, such as a
social guest. Trespasser = Enters another’s property without and lawful authority,
permission, or invitation. Although frequent trespassers or known trespassers become
licensees
(i) Unsafe Condition – landowner has obligation to make safe or warn of unsafe
conditions or to make unsafe conditions safe. (The P would argue that the
landowner did not take reasonable steps in warning or making the unsafe
conditions safe.) (The D would argue that he has taken all the reasonable steps to
make the condition safe.)
(ii) Dangerous Acts – The courts typically apple some combination of the four
approaches to assess the scope of duty: the specific harm test, the prior similar
incidents test, the totality of the circumstances, and the balancing test.
(iii) Land Owner Liability for Criminal Activity - In NY there is a 2 prong test;
first the past experience which is past occurrence in similar incidents, AND the
likelihood of same or similar incident occurring in the future. And foreseeability
must be substantial.
(C) Medical Malpractice – There is a professional standard of care, which means person
of the same occupation training, knowledge, skill, and experience would have done under
the same or similar circumstances.
Psychiatric – same as medical mal practice, but here the wrong diagnoses does not
establish liability, what P needs to show is the psych did not take reasonable steps
in the assessment (not diligent)
*Informed consent * is a defense, when you are informed and sign a wavier or
some other type of docs*
NEED EXPERT TESTIMONY
(D) Res Ispa Loquitor – When you cannot determine precisely which conduct was
negligent, you make invoke the Res Ispa Loquitor doctrine.
To establish a prima facie case under Res Ispa Loquitor the P must show (1) the
conduct that caused the injury someone HAD to be negligent (2) What caused the
injury was in the exclusive or substantial control of the defendant, (3) and that the
plaintiff did not contribute to his or her injury.
(E) Rescue Volunteer- Generally there is no duty to strangers. For rescue volunteers, it’s
a voluntary assumption of duty. Once person assumes the duty he or she cannot
relinquish that duty (cannot give up).
Good Samaritan laws – when trying to help someone and by accident cause an
injury most states have Good Samaritan laws, making one immune for causing the
accident injury.
(F) Purely emotional distress – Generally if plaintiff sustains physically he can recover
for emotional distress. WITHOUT physical injury you can recover for purley emotional
distress under bystander liability. The court will apply a two-prong test, (1) the plaintiff
must be an immediate blood relative of the person that sustained the physical injury. (2)
the plaintiff was in the immediate “zone of danger” defined as; the area of an imminent
physical harm.
(G) Purely Economic Loss – Economic loss without physical injury.
Recover possible when: There is a special relationship between the tortfesor and
the plaintiff in which the defendant (tortfesor) reasonably knew that his
negligence would result in the plaintiffs economic loss.
(H) Immunity – defense that bars liability (being exempt from liability).
Parent – Child Immunity – immunity from tort actions against parents from their
non-adult children.
Government has 2 functions: Government or Proprietary
Proprietary- is when the activities are not exclusive to the government and could
be done by private entities. Activities such as digging a hole in the road, operating
a crane, and matanience of buildings etc. When it is a proprietary government
does not have immunity.
Governmental  if governmental must ask if Special Duty existed  look
whether it is ministerial or discretionary.
To Establish Special Duty there are 3 elements: (1) SD was created by
some type promise (2) the plaintiff relied on that promise (3) and the
defendant knew that the P would rely on the promise and inaction could
lead to harm
Ministerial –it falls within the scope of the job, no immunity defense
Discretionary – if government function must make a discretion call (like
where to send 1 police car to 2 different crims) then immunity is a defense
for the government
*if immunity applies, no case. If NOT immune then proceed with negligence
case*
Standards
 Standard of reasonable care – what a reasonable person in the same or similar
situation would do under the same or similar circumstances.
 Professional – what a person of the same occupation with same knowledge,
training, and experience would do under the same or similar circumstances.
 Children – what a child of the same age, intellect, maturity, and experience
UNLESS they are engaged in inherently dangerous activity (Robinson v. Lindsey)
 Mentally Disabled – in negligence cases, courts applies reasonable person
standard
Doctrines
 Respondeat Superior – an employer is vicariously liable for the employee acting
within the scope of employment
 Bystander liability – In the negligence cases entailing the purely emotional harm
(absent a direct physical injury). In NY the court will apply a two-prong test, (1)
the plaintiff must be an immediate blood relative of the person that sustained the
physical injury. (2) the plaintiff was in the immediate “zone of danger” defined
as; the area of an imminent physical harm.
Strict Liability
3 Types: Animals Owners Strict Liability, Abnormally Dangerous Activities, and Strict
Product Liability,
Strict liability – If defendant caused the force that injured the person, then they are
strictly liable. “you caused= you pay”. P needs to show the deed that caused the
harm/injury, the duty is in the law. (it is basically established already)
Assumption of Risk (polar opposite of duty) – By participating in recreational activity
you have then given away the duty owned to you.
Strict Liability for Injuries caused by Animals
1. Wild vs. Domestic
A. Wild– owner is always strictly liable for the injuries caused by the animal EXCEPT
when the P lures
B. Domestic – If the animal is domestic, the owner is strictly liable if the owner knew or
should have known of the animal’s vicious propensity.
(Establish propensity by the animals history of conduct)
*NY LIMITS the animal owner liability to Strict Liability*
Courts have also rejected every dog gets one bite, in many jurisdictions there is dog bite
statute which creates exclusive remedies for dog bite victims.
Defenses to Injuries caused by Animals
1. Assumptions of Risk – Plaintiffs assumption of the risk is a defense to animal
cases.
2. Contributory negligence can reduce the amount of the reward
Strict Liability for Abnormally Dangerous Activities
Abnormally Dangerous Activities – engaging in abnormally dangerous activity justifies
the imposition of Strict Liability.
Abnormally dangerous activities require when one does abnormally dangerous activities
and harm is caused to someone else (plaintiff) the D is strictly liable.
Assumption of Risk – polar opposite of duty, by participating in recreational activity that
is inherterly dangerous, then you have given away the duty owed to you.
Test for Abnormally Dangerous: *must stratify a couple of elements*
1. Foreseeability of risk and severe harm.
2. Inability to eliminate risk by reasonable care (MOST CRITCAL)
3. Not a matter of common usage (abnormal means this)
4. Danger outweighs value of activity to the community
Products Liability
4 theories: Negligence, Strict Product Liability, Breach of Warranty, and
Misrepresentation
STRICT PRODUCT LIABLILTY 3 Theories: Manufacturing, Design, and Warning
Manufacturing Defect
Manufacturing defect cases involve: the product in question differs from its design
specifications or is different than the units in the same production line. (SOME FLAW IN
FABRACATION)
- When product X does not confirm with to all the other product X’s; this
deviation creates the risk for harm.
Proving Manufacturing defect, the Plaintiff must show …
1. Look at the plans and product, comparing and contrasting them.
2. If product is not available for comparing, you need circumstantial evidence
Circumstantial evidence – you must show the product that caused the injury
malfunctioned, and eliminate all other logical causes.
Design Defect
Design defect cases involve: The products are made according to the specs, but the specs
are defective in themselves.
Establishing Design Defect Elements – The plaintiff must establish by the preponderance
of the evidence that the product was designed in such a way that it was (1) not reasonably
safe and (2) the defect in design was a substantial factor in causing the injury.
* Even if an unsafe or defective feature is OPEN AND OBVIOUS, manufacture still
owes duty to the consumer to make the product safer (if can be) at reasonable cost. *
Consumer Expectation Test – the rule applies only where the product is at the time it
leaves the sellers hands, in a condition not anticipated by the ultimate consumer, which
will be unreasonably dangerous to him. Focuses on the reasonable expectation of the user
and the surprise element.
- problem is it is often difficult to determine the reasonable expectation of the
purchaser, no consumer can reasonably expect defects in NEW items.
Risk Utility Test – the product is defective in design if a reasonable seller with
knowledge of its dangers would not have placed it on the market. ITS RISKS
OUTWEIGH ITS UTILITY OR BENEFITS TO USERS.
3 steps = If causes the injury it is dangerous  could be made safer  at a reasonable
cost  not changing the function of the product.
Warning Defect
-Question for Jury or Judge is whether the warning was adequate or inadequate
-Generally the rule is if the manufacture knows the product is dangerous including all
foreseeable uses, and the product could not be made safer then the manufacture must
issue a warning.
A product may be defective "because of inadequate instructions or warnings when the
foreseeable risks of harm posed by the product could have been reduced or avoided by
the provision of reasonable instructions or warnings by the seller or other distributor...and
the omission of the instructions or warnings renders the product not reasonably safe
Open and Obvious still requires warning if it dangerous, or has danger in its reasonable
use or misuse.
Cannot use warning to leave product unsafe. Manufacture must take all steps to make
product as safe as foreseeably possible, before relaying on warning/instructions.
Warnings must be: Clear, comprehendible, concise, and conspicuous
Absence of these factors can make the warning inadequate.
Defenses for Strict Product Liability
Under strict product liability, the product cannot be altered, tampered, or changed.