Part 1 Personal Injury The Prima Facie Case Part 2 Defenses to a Personal Injury Case Part 3 Modification of Duty by Contract TORTS: A VISUAL OUTLINE 1992 David K. DeWolf Part 4 Intentional Torts Part 5 Harms to Non-Physical Interests Part 6 Philosophical Syntheses of Tort Law 9/2/2008, 11:38 AM, Page 1
Relief Part 1 Liability: The Prima Facie Case Breach of Duty Causation Damages 9/2/2008, 11:38 AM, Page 2
Chapter 1 Establishing a Breach of Duty Negligence ---OR-- Strict Liability Defining Reasonable Care Useful Evidence of Negligence Abnormally Dangerous Activities Animals Nuisance Statutory Strict Liability Reasonable Person Learned Hand (Efficiency) Juror Experience Custom of the Industry Statutory Violations Res ipsa Loquitur Safety Policies Vicarious Liability (To get a deeper Pocket) Breach of Duty 9/2/2008, 11:38 AM, Page 3
Chapter 2 Proximate Cause But-F or Cause (Cause in Fact) M ore probable than not standard AND Legal Cause Exceptions Increased Risk No superseding Victim was Cause Foreseeable Unknown Ide ntity < 50% probability Cumulative Cause s Alte rnative Liability Enterprise Liability Loss of a Chance Substantial Factor Test Concerted Action Market Share 9/2/2008, 11:38 AM, Page 4
Chapter 3 Damages Types of Additional Parties Calculating the Recoverable Damages Who Can Recover Damages Amount of Damages Property Damage Wage Loss Pain & Suffering Punitive Damages Compensatory Damages Wrongful Death Wrongful Birth/Life Bystander/ Consortium Requires Malice/Reckless Disregard "Excessive" Awards Collateral Sources Permissible Jury Arguments Litigation Costs Attorney Fees NOT Included 9/2/2008, 11:38 AM, Page 5
Part 2 Defenses to a Personal Injury Case Immunity Contributory Fault Multiple Tortfeasors Statutes of Limitation 9/2/2008, 11:38 AM, Page 6
Chapter 4 Immunity Governmental Parental Employer Statutory Waiver Exceptions Liability TO Child Liability FOR Child Worker's Comp. Exclusion No Immunity for Intentional Torts Negligence Only? Discretionary Function Other Exclusions? None for Bad Parenting YES for, e.g. Bad Driving Dangerous Propensity Damage Limitation? 9/2/2008, 11:38 AM, Page 7
Chapter 5 Contributory Fault Contributory Negligence Assumption of Risk Common Law Bar Modified Comparative Pure Comparative Primary (Defendant Wasn't Negligent) Secondary Unreasonable (Plaintiff Was Negligent) Secondary Reasonable (Plaintiff Assumed Inherent Risk) 49% ("if less than") 50% ("unless greater than") Effect: No Liability Same as Contrib. Neg.??? Examples: Unscreened Baseball Seats Plaintiff Accepts Ride With Drunk Driver Cheerleader Doing Pyramid Stunts 9/2/2008, 11:38 AM, Page 8
Chapter 6 Multiple Tortfeasors Indivisible Injury? Joint and Several Liability Settlement Credit Contribution & Indemnity Pure Joint Liability Mixed Systems Pure Several Liability Dollar Reduction Equal Share Reduction Percentage Reduction Pre-Emptive Settlement Joint Liability Overpayment (plaintiff-friendly) (defendant-friendly) Plaintiff's %age of Fault Economic v. Non-Econ. Damages Good-Faith Hearing Reallocation 9/2/2008, 11:38 AM, Page 9
Chapter 7 Statutes of Limitation Identifying the Correct Period Time of Accrual Tolling Nature of the Cause of Action "Gravamen" of Claims Discovery Rule Product Liability Construction Statutes Infancy Fraudulent Concealment E.g., Tort v. Contract Statutes of Repose Statutory Change? 9/2/2008, 11:38 AM, Page 10
Part 3 Modification of Duty By Contract Premises Liability Product Liability Professional Malpractice Rescuers, Justifiable Reliance and Special Relationships 9/2/2008, 11:38 AM, Page 11
Chapter 8 Premises Liability Status Classifications Jurisdictions Abolishing Rigid Status Non-Premises Liability Cases STATUS Business or Public Invitee Licensee CHARACTERISTICS Owner's Business Purpose or Public Entity Holds Open Social Guest; Bare Permission DUTY OWED Reasonable Care Warn of hidden Dangers Known to O. Trespasser No Permission Don't Shoot! Reasonable Care Considering the Circumstances Including "Status" Injuries Arising From Breach of Duty Other Than Obligation to Maintain Safe Premises Example: Owner Hits Guest With Golf Club Exception for Child Trespassers (Attractive Nuisance) 9/2/2008, 11:38 AM, Page 12
Chapter 9 Product Liability The Rise & Fall of Privity Adoption of Strict Liability in Tort Statutory Modifications Contract Requirements Concept of DEFECT Statute of Limitations Statute of Repose Strict Liability Based on Warranty Manufacturing Design Warning Negligence Standard Retailer Relief True Strict Liability Mix of SL and Negligence 9/2/2008, 11:38 AM, Page 13
Chapter 10 Professional Malpractice Medical Other Professional Negligence Informed Consent Statutory Modifications Legal Establishing the Standard of Care Material Facts Regarding Risks Alternative Therapies Statutes of Limitation Informed Consent Accounting Real Estate Experts Familiar With State SOC Customized to Specialty & Circumstances 9/2/2008, 11:38 AM, Page 14
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 OR Society (Court) Decides "Special Relationship" Created Obligation Example: Driving a Car Example: Doctor Agrees to Diagnose Patient Example: Psychiatrist Fails to Warn Patient's Victim 9/2/2008, 11:38 AM, Page 15
Part 4 Intentional Torts The Prima Facie Case Defenses to Intentional Torts 9/2/2008, 11:38 AM, Page 16
Chapter 12 Intentional Torts: The Prima Facie Case Battery & Assault False Imprisonment Tort of Outrage Battery Intent Element Intent to Cause Harmful or Offensive Touching or Apprehension thereof Damage Touching Results Intent to Confine Fixed Boundaries Intent or Recklessness Outrageous Conduct Assault (same) Apprehension Awareness OR Damage Severe Emotional Distress 9/2/2008, 11:38 AM, Page 17
Chapter 13 Defenses to Intentional Torts Consent Defense of Self Defense of Others Defense of Property Statutory Privilege Maybe Not, If Illegal Conduct Deadly Force v. Nondeadly Force Limited By DEADLY NONDEADLY Scope of Only if Reasonable Must Be Consent Belief of Threat to Life Reasonable Must Be Reasonable Claims of Right Go to Judge E.g., Shopkeepers, Law Enforcement Must Have Reasonable Grounds 9/2/2008, 11:38 AM, Page 18
Part 5 Harms to Non-Physical Interests Defamation Invasion of Privacy Damage to Business Interests Misuse of Legal Process 9/2/2008, 11:38 AM, Page 19
Chapter 14 Defamation Liability Defenses Damages Concerning Plaintiff Falsity Public Figures Culpability Private Figures Absolute Privilege (Official Business) Conditional--Lost If Malice Shown Matter of Concern Special Damages If Slander Only Actual Punitive if Malice Shown "Actual" Malice Negligence Fair Report of Official Proceeding 9/2/2008, 11:38 AM, Page 20