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Torts II
University of Dayton School of Law
Hagel, Thomas

Torts 2 Outline
Hagel-Fall 06’

Topic 1: Intro

-Moving party has initial burden of the following:

Burden of Proof
Burden of Pleading
Burden of Production

Alternative Pleading-hedging your bet with two or more theories of law for your set of facts

Intent-the actor desires to cause the consequences that did in fact happen

Circumstantial Evidence- Facts that if you believe them, would lead you believe something else is true

Legal Cause- Cause in fact + Proximate Cause

Privilege- functions as a defense. “You have a right to do what you did”. Therefore you aren’t liable.

Elements of Negligence:

Duty (pre-existing)
Breach of that duty

Issue of Law- Judge

Issue of fact- Jury

“By operation of law”-we’re going to hold someone jointly and severally liable even though we know they did not do it.
-A form of respondeat superior/vicarious liability
-i.e truck driver/trucking company

Absolute Liability- the person being held liable is going to be held liable. Period. No excuses/no defenses.

Strict Liability- There are defenses, not absolute.
-Defendant did the act, it caused harm, so he’s liable, But avec defenses that would be available.

Topic 2: Duty to rescue pp.13-14 of Supp

Pre-existing Duty to Act (in order to be held liable)- usually based on some relationship i.e. parent-child

§314 Duty to Act for Protection of others

The Fact that the actor realizes or should realize that action on his part is necessary for another’s aid, doesn’t in and of itself impose such action upon him.

My Notes:

-Unless there is a pre-existing relationship imposing duty or a statutory provision imposing duty, NO DUTY exists.

-We all do have the duty of care as not to create unsafe situations for ourselves. There is always a duty to act reasonably in said situation.

-The duty is not defined by success; the duty is to act reasonably under a set of circumstances.

-“Reasonable person in the actor’s shoes”= pull 100 off of the street, what would 75 of them say? Every case is extremely fact sensitive

§315 General Principle

There is no duty to control the conduct of a 3rd person from causing harm to another unless:

The person who’s dangerous conduct and the actor have the special relationship, then there is an Affirmative duty on the part of the actor.

Or the actor has a special relationship with the victim, then there is a duty to protect that potential victim

Special Relationship- most of these are statutory

Topic 3:Occupiers of Land and Trespassers: Rights and Duties

The Status as to T, L or I determines the owner’s level of duty


Whenever you have a duty, almost every time you can fulfill it with a proper warning (giving adequate info)

§ 335 Artificial Conditions Highly Dangerous to Constant Trespassers

-“Attractive Nuisance”
-i.e. Swimming pools, etc.

A possessor of land who knows or should know that trespassers constantly come onto the area is subject to liability for harm caused by the artificial condition if:

The condition is one that the possessor created and or maintains
Is to his knowledge likely to cause harm to the trespassers
Is of a nature that he has reason to believe that such trespassers will not discover it and,
The possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risks involved.

Attractive Nuisance-still exists, but is mostly taken care of by zoning laws. I.e. fence if you have a pool. Covers only liability w/ artificial conditions.
-Creates a higher duty for landowners

§ 336 Activities Dangerous to Known Trespassers

-A possessor of land who knows or has reason to know someone is trespassing