✓ Torts Outline – Russell Fall 2016
I. SHOW ME THE MONEYà think like lawyers, not like professors.
Boring organization gets all the points.
Negligence: duty, breach, causation, damages.
Be redundant when necessary
Think of insurance and injuries, concerted action, aligned interests.
Don’t use passive voice
Negligence is a cause of action. The four things are what you need to establish a prima facie case.
Distinguished from products liability.
ADD intro paragraph
Establishing prima facie case of negligence.
Who has a chance to get money from the insurance company?
When active, be reasonable. (Heaven v. Pender)
Generalized duty of care.
When you’re active, you create risk.
Risk is the possibility of injury.
Duty is to act reasonably, not eliminate risk.
Was there a duty?
Was it limited by a type of harm?
To whom is a duty owed?
To the foreseeable plaintiff
Exception: A person who is hurt from the acts of the D, but was unforeseeably harmed
Duty to Act
No. Not generally. “Sitting quietly, doing nothing”
Exception: Nonfeasance standard: mechanic fails to inspect equipment
If you start to act, you have to act reasonably
Forced P to rely on a promise
Duty to rescue
Ex: Lifeguard: employment creates relationship, have a duty within their zone
If their life is in danger, the duty ends
They created the peril
Special relationships: innkeeper, common carrier passenger, ship captain, employer/employee, student/school
Undertaking to act and not following through
You can’t leave the plaintiff worse off, don’t want to discourage others
Duty to Control
Unless there is a special relationship
Obligation to take reasonable steps to protect a third party if they knew or should’ve known the patient presents a serious risk to a specific third party,
Terasoft (cite in exam)
Generally still have to be touched.
Think about it in terms of what happens to an individual — property.
Forest fire – ash on convertible seat is still property damage that she can recover.
Sittin’ quietly, doin’ nothing. No duty.
Finding liability for someone who is not active,
Nonfeasance—still duty if you created the peril, had a special relationship, started to act then stopped, or had a K.
Claims others can bring on your behalf
Loss of consortium
Claim brought by spouse – usually sexual implications, added to original complaint
Loss of society is similar
general damages are typically recoverable
Brought by those left behind
Continuation of a pre-existing suit
Generally brought by estate