TORTS:
©1992 David K. De W olf
A VISUAL OUTLINE
Part 1
Personal Injury
The Prima
Facie Case
Part 2
Defenses to a
Personal Injury
Case
9/2/2008, 11:38 AM, Page 1
Part 4
Intentional
Torts
Part 3
Modification of
Duty by
Contract
Part 5
Harms to
Non-Physical
Interests
Part 6
Philosophical
Syntheses
of Tort Law
Relief
Part 1
Liability: The
Prima Facie Case
Breach of
Duty
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Causation
Damages
Chapter 1
Establishing a
Breach of Duty
---OR--
Negligence
Defining
Reasonable Care
Abnormally
Dangerous
Activities
Useful Evidence
of Negligence
Juror
Reasonable
Experience
Person
Learned Hand
(Efficiency)
Res ipsa
Loquitur
Custom of
the Industry
Safety
Policies
Statutory
Violations
Vicarious Liability
(To get a deeper Pocket)
Breach
of Duty
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Strict Liability
Animals
Nuisance
Statutory
Strict Liability
Chapte r 2
Proximate Cause
But-F or Cause
(Cause in F act)
AN D
Le gal Cause
M ore probable
than not standard
Incre ase d N o supe rse ding V ictim was
Cause
Risk
F ore se e able
E xce ptions
Unknown
Ide ntity
Alte rnative
Liability
Conce rte d
Action
E nte rprise
Liability
M arke t
Share
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< 50%
probability
Cumulative
Cause s
Loss of
a Chance
Substantial
F actor T e st
Chapter 3
Damages
Types of
Recoverable Damages
Additional Parties
Who Can Recover Damages
Property
Damage
Wage
Loss
Wrongful
Death
Compensatory
Damages
Pain &
Suffering
Wrongful
Birth/Life
Bystander/
Consortium
Punitive
Damages
Requires Malice/Reckless Disregard
Litigation
Costs
Attorney Fees NOT Included
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Calculating the
Amount of Damages
"Excessive"
Awards
Collateral
Sources
Permissible
Jury Arguments
Part 2
Defenses to a
Personal Injury Case
Immunity
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Contributory
Fault
Multiple
Tortfeasors
Statutes of
Limitation
Chapter 4
Immunity
Statutory Waiver
Negligence
Only?
Other
Exclusions?
Damage
Limitation?
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Employer
Parental
Governmental
Exceptions
Liability TO
Child
Liability FOR
Child
Discretionary
Function
None for
Bad Parenting
YES for, e.g.
Bad Driving
Dangerous
Propensity
Worker's Comp.
Exclusion
No Immunity for
Intentional Torts
Chapter 5
Contributory Fault
Assumption of Risk
Contributory Negligence
Common Law
Bar
Modified
Comparative
Primary
(Defendant
Wasn't Negligent)
Pure
Comparative
49%
50%
("if less than") ("unless greater than")
Effect:
Examples:
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No Liability
Unscreened
Baseball Seats
Secondary Unreasonable
(Plaintiff Was Negligent)
Same as Contrib. Neg.
Plaintiff Accepts Ride
With Drunk Driver
Secondary Reasonable
(Plaintiff Assumed
Inherent Risk)
???
Cheerleader
Doing Pyramid Stunts
Chapter 6
Multiple Tortfeasors
Indivisible Injury?
Joint and Several Liability
Pure Joint
Liability
Mixed
Systems
Settlement Credit
Pure
Several Liability
Dollar
Reduction
(plaintiff-friendly)
Plaintiff's
%age of Fault
Economic v.
Non-Econ. Damages
Reallocation
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Good-Faith
Hearing
Equal Share
Reduction
Contribution & Indemnity
Percentage
Reduction
(defendant-friendly)
Pre-Emptive
Settlement
Joint Liability
Overpayment
Chapter 7
Statutes of Limitation
Identifying the Correct Period
Nature of the
Cause of Action
"Gravamen"
of Claims
E.g., Tort v.
Contract
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Time of Accrual
Discovery
Rule
Product
Liability
Tolling
Construction
Statutes
Statutes of
Repose
Infancy
Statutory
Change?
Fraudulent
Concealment
Part 3
Modification of Duty
By Contract
Premises
Liability
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Product
Liability
Professional
Malpractice
Rescuers, Justifiable Reliance
and Special Relationships
Chapter 8
Premises Liability
Status Classifications
STATUS
Jurisdictions
Abolishing Rigid Status
CHARACTERISTICS DUTY OWED
Business or
Public Invitee
Owner's Business
Purpose or Public
Entity Holds Open
Reasonable
Care
Licensee
Social Guest;
Bare Permission
Warn of hidden
Dangers
Known to O.
Trespasser
No Permission
Don't Shoot!
Exception for
Child Trespassers
(Attractive Nuisance)
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Reasonable Care
Considering the
Circumstances
Including "Status"
Non-Premises
Liability Cases
Injuries Arising From
Breach of Duty Other Than
Obligation to Maintain
Safe Premises
Example: Owner Hits Guest
With Golf Club
Chapter 9
Product Liability
The Rise &
Fall of Privity
Adoption of Strict
Liability in Tort
Contract
Requirements
Strict Liability
Based on Warranty
Concept of
DEFECT
Design
Manufacturing
True Strict
Liability
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Statutory
Modifications
Warning
Mix of SL
and Negligence
Statute of
Limitations
Statute of
Repose
Negligence
Standard
Retailer
Relief
Chapter 10
Professional Malpractice
Medical
Professional
Negligence
Establishing the
Standard of Care
Experts Familiar
With State SOC
Customized to
Specialty &
Circumstances
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Other
Informed
Consent
Statutory
Modifications
Statutes of
Limitation
Material Facts
Regarding Risks
Alternative
Therapies
Legal
Informed
Consent
Accounting
Real Estate
Chapter 11
Rescuers, Justifiable Reliance
and Special Relationships
What Triggers a Defendant's
Duty to Use Reasonable Care?
Misfeasance
("Sins of Commission")
Activities that Create Risk
Duty to Use Reasonable Care
Nonfeasance
("Sins of Omission")
Opportunities to Reduce
Or Eliminate Pre-Existing Risk
NO Duty to Use RC
UNLESS
Defendant Induced
Justifiable Reliance
Example: Driving a Car
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OR
Example: Doctor
Agrees to Diagnose Patient
Society (Court) Decides
"Special Relationship"
Created Obligation
Example: Psychiatrist Fails
to Warn Patient's Victim
Part 4
Intentional Torts
The Prima
Facie Case
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Defenses to
Intentional Torts
Chapter 12
Intentional Torts:
The Prima Facie Case
Battery
& Assault
Intent Element
Battery
False
Imprisonment
Damage
Intent to Cause Harmful
or Offensive Touching or Touching Results
Apprehension thereof
Assault
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(same)
Tort of
Outrage
Intent to Confine
Intent or Recklessness
Fixed Boundaries
Outrageous Conduct
Awareness OR Damage
Severe Emotional Distress
Apprehension
Chapter 13
Defenses to
Intentional Torts
Defense of
Self
Consent
Maybe Not,
If Illegal
Conduct
Limited By
Scope of
Consent
Defense of
Others
Deadly Force v. Nondeadly Force
DEADLY
Only if Reasonable
Belief of Threat to Life
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NONDEADLY
Must Be
Reasonable
Defense of
Property
Must Be
Reasonable
Claims of Right
Go to Judge
Statutory
Privilege
E.g., Shopkeepers,
Law Enforcement
Must Have
Reasonable Grounds
Part 5
Harms to
Non-Physical Interests
Defamation
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Invasion of
Privacy
Damage to
Business Interests
Misuse of
Legal Process
Chapter 14
Defamation
Defenses
Liability
Concerning
Plaintiff
Falsity
Public
Figures
Culpability
Private
Figures
Damages
Absolute Privilege
(Official Business)
Conditional--Lost
If Malice Shown
Matter of Concern
"Actual"
Malice
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Negligence
Fair Report of
Official Proceeding
Special Damages
If Slander Only
Actual
Punitive if
Malice Shown