1. Spot the issue
a. Intentional tort?
i. Is it a physical injury? (i.e. battery, , etc…)
ii. Is it an emotional injury? (i.e. assault, false imprisonment, IIED or NIED, Defamation)
iii. Is it a property injury? (i.e. trespass to land, chattels, conversion, nuisance, etc…)
b. Negligence?
i. Did person fail to use reasonable care to avoid injury/damage?
2. What are the elements of the issue?
a. If intentional tort (EXAMINE EACH ELEMENT SEPARATELY):
i. What act is required?
ii. What level of intent?
1. Specific or general?
2. Has it been transferred (except for IIED remember!)
iii. What type of harm/injury?
b. If negligence (EXAMINE EACH ONE SEPARATELY):
i. Was there a duty to PL?
1. Is the PL foreseeable? (Remember Palsgraff – no duty to unforeseeable PL)
2. What is the standard of care?
a. Reasonable prudent person? Objective determination.
b. Reasonable plaintiff? Subjective to PL’s circumstances.
c. Statute? Does a law set forth what is expected of the citizens?
d. Professional standard in area of expertise? i.e. – doctor, repairman, etc…
3. Duty to control acts of others?
4. Duty to come to come to aid of others?
ii. Was the duty breached by acts?
1. Is the harm foreseeable?
2. Did DEF fail to use reasonable care?
3. Any untaken precautions? Will burden of that precaution reduce the risk? (i.e. cost/benefit analysis)
4. Negligence per se? Is there a law that was broken?
5. Is there a Res Ipsa Locquitor claim?
iii. Did the act cause the injury/damage?
1. “But for” (proximate) cause?
2. Substantial factor?
3. Was it remote in time and space?forseeable?
4. Any other intervening causes?
iv. What are the damages?
1. Emotional? Physical? Property? Economic? Etc…
2. Must he pay actual
tort
No- tell professor tort cannot be left, plaintiff lost
Yes or Maybe- move on to step two,
Step 2. Are there affirmative defenses?
No- plaintiff won
Yes- move on to step 3
Step 3. General consideration items
Vicarious liability? Garrett v. Daley (pull chair)
Ask if parents are liable? Company?
There are others
Quest. 1
A. X liability toY
1. Intentional Torts
IRAC (segue)
2.Negligence
a. duty of care
IRAC
X argument and counter
(pertinent defenses)
b. breach of duty
IRAC (same)
c.Causation
d. Actual Damages
Conclusion to neg.
B. x liability to z
1. assault?
2. battery?
3. Trespass to chattels?
Seven intentional Torts
Act, Intent, Causation are always present
causation is always a given,
Battery
Harmful or offensive contact
Profs fond of offensive contact
Offensive-substitute “unpermitted”