Torts Outline

Tort Outline 2013 –Negligence Per Se ONLY
 
POLICY: The general purpose of tort is to curtail excessively risky behavior and preserve public safety by allowing a injured party to be compensated from a wrongful act. There are 3 Types of Torts; Intentional, Negligence and Strict liability.
1)     Intentional – most egregious (conscious objective, consequences foreseeable); akin to crimes, conduct where defendant intended to cause harm to plaintiff
2)     Negligence – doesn't look at intent of the defendant at all, whether conduct fell below applicable standard of care (objective standard)
3)     Strict Liability – doesn't look at intent, doesn't care about fault; only cares about whether people were injured; defendant compensates plaintiff for injuries just because they caused them (abnormally dangerous activities, products liability) 
 
NEGLIGENCE:
à Def: An overt act that creates unreasonable risks of harm to others that a reasonable person would have avoided.
àRisk of harm unreasonable when a reasonable prudent person would foresee that :
            a) harm might result; and
            b) A reasonable prudent person would have avoided the conduct which created the risk;
            c) Or, when you fail to act when action is required
 
Side Note:
¾    Conduct or act is not a mere state of mind (ex. day dreaming)
¾    A Non-Negligent act or conduct is when a reasonable precaution is taken to prevent occurrence of a foreseeable harm to others.
 
àPolicy of Tort Law
¾    Deterrence
¾    Compensation to those who are harmed.
à5 Legal elements of a Prima Facie Case of Negligence
            àAll must be proven by the plaintiff to establish a prima facie case of negligence.
 
1.     Legal Duty: Whether the Defendant exercised a reasonable standard of care toward the Plaintiff?
a.      Foreseeable Plaintiff: Who are you worried about?
**(This is really an element that should be discussed under duty, even though it applies here. This is b/c without a foreseeable plaintiff, there is no duty. You only owe a duty of care to foreseeable plaintiff.)
a.      Time: right place, right time
                                                                                       i.      Injury should be within the “range of apprehension”
b.     Distance:
                                                                                       i.      Geographical—btwn negligent act of D and where the P was when injured.
                                                                                     ii.      Was P within the ‘zone of danger’?
c.      Relationship
                                                                                       i.      Btwn the P and the D
                                                                                     ii.      Danger invites rescue, so negligence toward a victim is negligence toward the rescuer.
b.     Standard of Care: this is identified to know if the D deviated from SOC of RPP
 
                                                   i.      General Rule: to act with the standard of care that would be exercised by a reasonable prudent person under the same or similar circumstances as the defendant was in at the time of the alleged negligence.
 
                                                 ii.      Non-Exceptions:
1.     Mental Disability
a.      Examples: Insanity, Low Intelligence, Mental Disease, Old Age, etc.
b.     RULE: Generally, a person with mental disability is held to the same standard of care as an ordinary prudent person under the same or similar circumstances without regard to their capacity to control or understand the consequences of their actions.
c.      There is zero legal duty to act with a standard of care when the patient causes harm or injury to a caretaker.
2.     Intoxication
a.      RULE: to act with the standard of care that would be exercised by a sober reasonable prudent person under the same or similar circumstances as the defendant without any regard to their intoxication.
 
                                               iii.      Non Exceptions w/ Variations in Quantum of Care:
      àThe standard of care does not change but the quantum of care                    changes (higher or lower) depending on the circumstances.
 
a.      IF, Superior knowledge: The defendant is required to exercise a higher quantum of care due to his/her superior knowledge under the circumstances.
            (aka prior knowledge: do not assume prior knowledge of danger/harm based on history there must be facts         which specifically identify that the plaintiff knew harm was possible)
b.     IF, Dangerous Instrumentality: The defendant is expected to act with the standard and quantum of care that would be exercised by a reasonable prudent person under the same or similar circumstances as the defendant was in at the time he/she utilized the dangerous instrumentality.
c.      IF, Emergency Circumstance: The defendant is expected to act with the standard and quantum of care as a reasonable prudent person under the same or similar circumstance.
 
                                               iv.      Exceptions:
1.     Physical Disability
a.      General RULE: Duty to act with the standard of care of as an ordinary prudent person with a similar physical disability under the same or similar circumstances.