Torts Outline

TORTS OCHOA FALL 2016

PROCEDURE:

Litigation Process:

Motion to Dismiss (demurrer) – assume facts pleaded are true (so what?)
Motion for Summary Judgment- Determine if there is enough evidence to have a trial (predicted evidence), π must produce evidence which if believed is sufficient to supports each element (put up or shut up)
Motion for Judgment as a Matter of Law (Directed Verdict) – similar standard as summary judgment based on what was introduced rather than predicted evidence. Order from the judge indicating that no reasonable jury could a decision to the contrary
Motion for Judgment as a Matter of Law (Motion for Judgment Notwithstanding the Verdict or JNOV)- Where a judge may overrule a jury’s decision

When Appeals can happen:

The case should or should not have gone to a jury
Jury instruction (de novo – starting from the beginning)
Procedural Ruling: abuse of discretion such as admission of evidence

Burden of Proof

Preponderance of the Evidence- For almost all things the plaintiff has the duty to prove by a preponderance of evidence (more likely than not). The defendant has a duty to prove by a preponderance of evidence any affirmative defenses.
Clear and Convincing Evidence – For Fraud causes. (Substantially more likely than not.)

NEGLIGENCE: Failure of ∆ to exercise reasonable care under the circumstances in fulfilling a duty of care.

PRIMA FACIE CASE: To establish a prima facie case for negligence:

There is a DUTY
The ∆ BREACHed that duty
Which led to the CAUSATION of harm
Resulting in DAMAGES

DUTY: Obligation to all foreseeable persons to exercise reasonable care under the circumstance. Care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence. Sometimes called ordinary care. Question of law

To Whom Is the Duty of Care Owed?

General Rule: we have a duty of reasonable care to everyone.
No general duty to act- generally a person cannot be liable in tort solely on the grounds that she has failed to act.

Harper v. Herman {Dive to Cripple} No affirmative duty to act without a special relationship, a voluntary undertaking, a non-negligent injury, or a non-negligent risk creation.

Exceptions (when there is an affirmative duty)

Special Relationship

Common Carrier (some states like CA still exist because enacted by legislature, in NY overturned by Bethel v. New York City Transit
Innkeeper to guests
School to students
Employer to employees
Landlord to tenants
Landowner duty
Business that holds business open to the public
Parent to (minor) child
Those in custody of others
MD/ Patient

A duty of care may arise from either a special relation between: the actor and the third person which imposes duty upon the actor to control the third person’s conduct, or the actor and the other which gives to the other a special right of protection Tarasoff v. Regents of the University of California {Tarasoff’d her}

Contractual

Strauss v. Belle Realty Co. {Stair Lights Out} No liability if no privity of contract otherwise it would violate the court’s responsibility to define an orbit of duty that places controllable limits on liability.

Assumption of Duty- voluntarily begins to render assistance to π (even if no legal duty on ∆s part).

∆s action prevents (or dissuades) others from rendering aid
Mere Promise (traditionally a promise was not enough but modern courts are shifting to make ∆ liable in these situations if π relied on the promise)
Rescuer
Voluntary undertaking to provide aide

Farwell v. Keaton {Beaten, Assisted, Abandoned} Where performance is voluntarily initiated there is a legal affirmative duty of care and to act. (voluntary undertaking)

Duty