I. Negligence A. DUTY 1. Of Defendant 1) Reasonable person Views on reasonable woman 1) 2) Insane person = reasonable person 1) O = One who occasioned tort responsible 2) I = Interests in estate will keep from torting 3) F = Prevent from faking 3) Physical disability 4) Dumb person = reasonable person 5) Sudden disability 6) Emergency 7) Professionals = higher 8) Children = to child of same age and intelligence except adult activity 9) Owner and occupier of land 1) Offland – Natural – Trees Artificial -Passerby Ultrahazardous 2) Undiscovered Trespasser – Warn for artificial dangers 3) Discovered trespasser/Licensee – Warn for natural/artificial know about. No duty to inspect 4) Invitee – Warn anything knew or should have known. Duty to inspect 10) Special relationships – higher duty 1) Common carrier/innkeeper 2) Employer/employee 1) Higher duty 2) Respondeat superior (liable for tort committed within business) 3) Business/consumer 11) Doctors – duty to inform and national standard Pro 1) Low income same care Con 1) Risks different 2) Education different 3) Higher likelihood of negligence because equipment not as good 2. Duty towards 1) Unborn children 1) Prenatal/preconception injury – recover for extra expenses but not regular b/c wanted baby 2) Wrongful formation – recover for expenses 3) Wrongful life – recover for extra expenses but not regular b/c wanted child 2) Economic Loss 1) NJ – modified foreseeabity 2) NY – linking 3) Restatement – Intention and know there is reliance 3) NIED 1) Impact – old 2) Modern 1) Physical manifestation 2) Must fear impact 3) Bystander -Zone of danger (Dillon) 1) Perceive danger 2) Close relative 3) Policy 1) Easy to fake so hard to prove 2) More fair for defendant to pay 3) Not enough deterrence otherwise 4) Foreseeable plaintiff 3. Negligence per se Exceptions 1) D = More Dangerous 2) I = Impossible 3) K = Don’t Know 4) E = Emergency 4. Duty to act or rescue (none except) 1) R = Special Relationship 1) Doctor – Objective → Subjective (duty to warn if give specific name and plan) 2) C = Contractual 3) M = Misfeasance 4) T = Tort-like 1) Know can control 2) Know of necessity to control 5) Views 1) Epstein – slippery slope 2) Bender – web of interconnectedness B. BREACH 1. Res Ipsa Loquitur (Smoke out and no one but plaintiff) 1) U = Unusual happening 2) N = Negligence 3) C = Complete control 2. Reasonableness of action 1) M = Magnitude of risk 2) P = Value of what is exposed to risk (value of Principal object) 3) C = Value of the object that is the reason the risk is taken (value of Collateral object) 4) PC = Probability collateral object obtained 5) PN = Probability collateral object not obtained if didn’t take risk. 3. Hand formula criticism 1) Not risk neutral 2) Public good? 3) Moral fault? 4) Disparaging to plaintiff 5) Objective 4. Proof 1) Actual notice 2) Constructive notice 5. Doctors 1) Custom – evidence for breach 2) Informed consent – duty to inform 1) E = Emergency situation 2) C = Not Competent 3) R = Well Known Risks C. CAUSATION 1. Actual 1) But for 2) Statistical 3) Joint tortfeasers 2. Proximate cause 1) Foreseeabililty 2) Direct causation 1) Foreseeable intervening action 2) Time 3) Issues 1) Plaintiff 2) Type 3) Extent 3. Statistical analysis 4. Joint tortfeasers 1) Joint and several 2) Respondeat superior 3) Two D, only one responsible but can’t figure out, both responsible D. DAMAGES 1. Types 1) Compensatory 1) PP = Past physical and mental pain 2) FP = Future physical and mental pain 3) FE = Future medical expenses 4) E = Loss of earning capacity 5) D = Permanent disability and disfigurement 2) Punitive 1) R = Reprehensibility 2) R = Ration of punitive to compensatory 3) C = Sanctions in other places for comparable misconduct 3) Nominal 2. Market share liability 3. Expert testimony 1) Validity 2) Relevance E. Defenses 1. Contributory – defendant not liable 2. Comparative 1) Pure – some money no matter what 2) Not as great 3) Not greater than 3. Assumption of risk 1) Requirements 1) Knowledge 2) Volition 2) Types 1) Expressed 2) Implied 1) Primary – no duty (inherent danger) 2) Secondary – no breach (danger not inherent) 3) Exceptions 1) Common carrier 2) Fraud, force, or emergency 3) If protected member of a class in a statute (can’t use to get out of negligence per se) II. Strict Liability A. What goes under? 1) C = Difficult to control 2) H = Likely to do harm if it escapes 3) U = Unnatural activity 4) H = Hand – danger is avoided more cheaply by avoiding activity than by taking care 4) Restatement 1 -unnecessary risk of uncommon activity which can’t be eliminated through utmost care 5) Restatement 2 1) P = Probability of harm 2) L = Likelihood loss is great 3) B = Burdensome to eliminate risk by reasonable care 4) C = Commonness 5) I = Inappropriateness 6) V = Value to community B. Places found 1) Animals 1) First bite 2) Inherently dangerous 2) Ultrahazardous activity C. Views 1) Whoever causes damage should pay (but both rich and poor cause damage and better to allocate money through taxes than litigation) 2) Kills off industry and hurt will benefit from general good achieved (but protects industries from damages by others) III. Intentional Torts A. Battery 1) I = Intent for action but not result 2) H = Harmful/offensive act (harm or unpermitted to average person) 3) P = With plaintiff 4) A = To average person (unless know of physical or mental supersensitivity) B. Assault 1) I = Intent for action but not result 2) A = Apprhension 3) I = Immediate battery 4) A = To average person (unless know of physical or mental supersensitivy) C. IIED 1) I = Intent for action but not result 2) O = Outrageous conduct 3) A = To average person (unless know of physical or mental supersensitivy) 4) E = Emotional distress (not physical manifestation) D. Trespass to land 1) P = Physical invasion (person or thing) 2) L = Of land E. Privileges 1. Defense 1) Self – defense 1) B = Reasonable belief 2) F = Reasonable force (including deadly if necessary) 3) R = Retaliation is BATTERY 2) Defense of property 1) B = Reasonable belief 2) F = Reasonable force (can’t use deadly) 3) Consent 1) Capacity 1) E = Emergency situations, right to consent waived if reasonable person would consent 2) F = Fraud 3) D = Duress 4) C = Criminality 2) Expressed/Implied 1) C = Customary 2) C = Conduct 3) B = Boundaries of given consent 3) In medical situations 1) U = Unable 2) N = Necessary 3) K = Didn’t know would refuse consent 4) R = Reasonable person would consented 2. Necessity 1) Public 1) R = Reasonable person believes 2) P = Don’t have to pay 2) Private 1) R = Reasonable person believes 2) P = Have to pay