Torts – Checklist - Blogs @ Widener Law

A. Interspousal
1. Rule—partial abrogation, limiting liability to only special circumstances
2. Argument—Preserve the institution of marriage but allow suits for special
3. Application
B. Parent-Child
1. Rule—General Abrogation thus the reasonable parent standard.
2. Argument—Social policy encourages a high standard of care for parents
when dealing with their children, thus allowing children to bring an action
for failing to meet that standard.
3. Application
C. Governmental
1. Rule—PA approach is general abrogation
2. Argument—Fairness—injured parties should be able to recover from any
defendant, even if it is the government.
Res Ipsa Loquitor
A. Inapplicable because it is only proper when no defendants cannot be identified,
but negligence exists. Here, there are definite defendants and therefore this
alternative pleading is inadequate.
Negligence per se (only if applicable to the First cause of action, if not apply elsewhere).
A. Duty is the statute.
B. Breach is a violation thereof.
1. Rule—class of persons protected by the statute
2. Class of harm prevented by the statute.
3. Discuss purpose of statute
4. Discuss protected classes
5. Discuss prevented harm
6. If silent, Institutional competence argument
C. Effect of breach
1. Rule—Rebuttable Presumption of Negligence.
a. Burden rests on the violating party
b. Strong, unequivocal, and credible evidence that:
i. Violations are common practices
ii. Violation is common knowledge
iii. Violation was reasonable
c. Argument—Evidence of negligence is too unpredictable.
Negligence as a matter of law is too strict. Rebuttable is proper
Foreseeable 
A. Zone of apprehension
1. Time, space, intervening events considered.
2. Argument if needed (Social Policy probably works)
3. Application
B. Trespasser—no permission
C. Licensee—social guest furthering their own purpose
D. Invitee—invited to further owner’s purpose
Foreseeable Risk
A. Reasonably Prudent person under like circumstances OR
B. Situations
1. Emergencies Standard
a. Rule—not of one’s own making, patent danger, and moment to
extricate one’s self.
i. Argument: Reasonable expectations
ii. Application
2. Age
a. Rule—child with similar ATIME
i. Argument—Social policy encourages childlike behavior.
ii. Application
b. Rule—adult standard because inherently dangerous activity, such
as operating a motorized vehicle
i. Argument—Social policy encourages safety regardless of
ii. Application
c. Adult standard because activity normally carried on by adults.
i. Argument—Reasonable to expect that children normally do
not engage in this activity, when they do, their standard of
care should be heightened.
ii. Application
3. Physical Disability
a. Rule—Reasonably Prudent person because disability did not effect
the circumstances
i. Argument—Reasonable to expect a lower standard only
when the disability infringes upon the ability to avoid injury.
b. Reasonably prudent person with similar disability because the
disability infringed on the injury
i. Argument—Reasonable to expect a lower standard of care
when the disability infringes upon the ability to avoid injury.
ii. APplication
4. Mental Disability
a. Rule—Reasonably prudent person because the  is permanently
disabled, and the law recognizes this standard to apply to these
i. Argument—Social Policy encourages safe supervision of
permanently disable individuals.
ii. Application
b. Rule—lower standard of care for persons with temporary mental
incapacity when it effects the ability to understand the duty or
ability to control conduct AND arises without notice or forewarning.
i. Argument—No liability without fault.
ii. Application
5. Professionals
a. Rule—Reasonably prudent professional with comparable learning
skill and ability as all similarly situated in the profession
i. Argument—Reasonably expect a higher standard for
professionals because require longer education and training
to acquire professional status.
ii. Application
b. Rule—Heightened standard for lawyers having requisite knowledge,
exercising best judgment and due care. Not a mere error in
judgment but a lack of discretion or abuse of discretion.
i. Argument— No liability without fault. Fault = lack of
discretion or abuse thereof, not simply a mistake.
ii. Application
c. Rule—Heightened national standard because local and similar rule
bread substandard health care.
i. Argument—Social policy encourages the highest possible
provision of adequate health care because health, safety and
welfare may be at stake.
Unreasonable according to the ’s burden of adequate precaution weighed against
the probability of injury and the injury itself.
A. Burden
1. Rule—Actual, constructive, or reasonable inspection.
2. Argument for whichever is chosen
3. Rule—If trespasser, duty arises at moment of actual discovery and must
reasonably avoid injury.
a. Argument—Court should not encourage trespassing. Liability will
encourage trespassing.
4. Rule—If licensee, duty to warn if hidden danger, unknown to  and
actually known to the .
a. Argument—If a  enters the ’s zone of danger to further his own
purpose, the burden of adequate precaution should be lowered for
fear of making owners the insurers of uninvited guests.
5. Rule—If invitee, duty to warn, and if the warning is insufficient under the
circumstances, must act reasonably to prevent the injury.
a. Argument—Reasonable to expect that warnings are sufficient under
the circumstances and if not that the owner will do all that is
required to prevent injury, especially when the owner’s purposes
are furthered by the invitee.
6. Rule—Steps  should have taken to reduce the risk under these
circumstances are...(DISCUSS and determine reasonableness or
B. Probability
1.  argues that Likelihood of damage of appreciable weight and moment
a. Weight = severity of injury
b. Moment = time to avoid injury
i. Application
2.  argues that the circumstances were unusual, extraordinary, and unlikely
because no past incidents of this kind.
a. Application
C. Injury
1. State the injury and its severity
D. Conclusion
1.  isolates the burden if high
2.  focuses on probability and injury
3. If even, conclude with:
a. Liability for acts done.
 was a cause in fact of the injury.
A. But for test does not apply because...
B. Substantial factor applies
1. Rule—known and unknown = mingling, combination to produce
something greater, or swept over
2. Rule—2 known = combination of both to produce one injury
3. Rule—Med mal = increased risk and contributed significantly by failure to
4. Rule—Acting in concert = 2 defendants and one cause and implicit
a. Argument—Reasonable expectation—implicit agreement means
agreeing to act negligently and agreeing to be responsible for each
others actions.
C. Greatly Multiplies the risk and Naturally leads to the occurrence
 was the proximate cause of the injury
A. Rule—negl. risk creating conduct leads to foreseeable consequences =
proximate cause of the injury.
1. Consequences W/I scope of risk created by 
2. Naturally and ordinarily leads to the consequence
3. Not necessarily the exact injury or sequence of events under the “eggshell
thin skull” theory
a. Argument—Reasonable expectations—this consequence is
reasonably expected from this negligent behavior because...
4. Application
B. Rule—Intervening Cause
1. will not break the chain of liability if the consequence still would occur
a. Argument—No liability without fault, fault defined as the ability to
avoid injury. Intervening parties may not be able to foresee the
consequences caused by another’s negligence and should not break
the chain of liability if the consequences would naturally occur
C. Rule—Superceding Cause
1. Will break the chain of liability if independent act creates an entirely new
risk under the circumstances and the injuries are so different that would
ordinarily result from the original negligence
IX. Damages
a. Argument—courts should not hold the  liable for consequences
unforeseeable under the circumstances.
b. Application
D. Rule—Independent Criminal Act
1. Breaks the chain of liability only if the criminal conduct is unforeseeable in
light of the risk created by the .
a. Argument—No liability without fault
b. Application
A. List appropriate damages
X. Defenses
If statute applies, negligence per se
’s standard of care
Carrol Towing
1. Factual, no “but for” use greatly multiplies
2. Proximate--’s conduct intervening or superceding
E. Effect
1. Rule—Contributory OR
2. Rule—Comparative
a. PA modified comparative 50/50 Rule
b. Modified 51/49 Rule
3. Assumption of Risk
a. Actual knowledge, voluntarily encountered, appreciation of risk