Torts Attack Sheet

I) Negligence II) Protected interests

A) Duty A) Body/person  personal injury
B) Breach B) Property  property damage
C) Causation (actual & proximate) C) Emotional wellbeing  NIED
D) Damages D) Personal relationship  loss of
consortium
E) $$$  economic loss
III) Proximate cause
A) Foreseeability (natural sequence, time/space, direct connection, substantial factor)
1) Plaintiff (& danger invites rescue)
2) Scope of risk  type, manner, extent
B) Cause, not “mere condition”
C) Policy
1) Limit liability somewhere
2) Proportionality
D) Loss of chance  recovery for increment of chance survival lost due to neg diagnose, etc
E) Intervening causes
1) “Foreseeable intervention” (one of reasons D’s conduct negligent)  still P/C
2) Intentional tort / crime = superseding cause UNLESS
(i) Negligence due, in part, to enabling the criminal act

IV) Pure emotional distress

A) (Impact rule (old))
B) Zone of danger rule
1) Fear for self OR
2) Fear for others, too
C) CA: bystander recovery
1) Actually at the scene
2) Saw accident as it occurred (directly, can’t be looking the other direction)
3) Immediate family member  distress > expected from ordinary bystander
D) Direct victim  preexisting relationship (or D’s actions directed at P)
E) Toxic torts (mesothelioma)  no pure ED (Policy: prioritizing recovery for phys injury)

V) Loss of consortium
A) Spousal
1) Not cohabitants  policy (would undermine institution of marriage)
2) Not parent-child  intangible loss (so mere “consolation prize”), slippery slope,
admin costs, whole new cause of action (w/o precedent), spousal relationship is
special, other Jx don’t recognize

VI) Pure economic loss

A) K remedy: req privity & can be waived/disclaimed
B) Tort: generally not w/o privity (slippery slope) BUT
1) Quasi-privity (3rd party known, intended use known + reliance)
2) OR “particularly foreseeable Ps”  limited class
3) *foreseeable reliance  any P who foreseeably relies may recover for neg misrep
Torts Attack Sheet

VII) Contributory Negligence

A) Same elements as primary negligence claim
B) Last clear chance
1) Helpless P  D knows P helpless, (reason to) know the danger OR would discover
by due care
2) Inattentive P  D (reason to) know P inattentive + D neg in failing to take the chance
to avoid harm

VIII) Comparative Negligence

A) Pure vs Modified
1) & issues of jt&sev liability, whether P must just be less than 50% fault (or less than
all Ds, or combo)
B) Failure to mitigate
1) Complete bar to recover extra damage incurred
2) *Pre-accident failure to mitigate: split (no recover for increased injury, part of C/N,
no bearing)
C) *If the very reason D’s conduct was negligent is that encouraged/allowed C/N of other
(e.g., kids), maybe C/N disallowed

IX) Assumption of risk

A) Primary A/R  no duty / limited duty (and no breach)
1) Express agreement A/R (narrowly construed, may be void for unconsc / pub pol)
2) Implied-in-fact / actual consent (touch-football game)
B) Secondary A/R  now part of C/N (old affirmative defense)
1) Implied A/R  fully understands risk, knows unreasonable, voluntarily takes

X) Immunities
A) Qualified (some exception, area w/o liability) VS Absolute (no liability)
B) Governmental / Sovereign
1) Federal Tort Claims Act (sim to state acts)  abrogate govt immunity
(i) Not intentional; not S/L
(ii) Not for discretionary function / policy choice
(iii) (notification + fed ct/no jury)
C) Charitable immunity (mostly gone  liability insurance, substitute govt programs)
D) Intrafamily immunity (mostly gone  liability insurance, so damages from outside)
1) *kid v parent  some Jx still immunity where q’n of parent’s discretion

XI) Statute of limitations

Torts Attack Sheet

XII) Strict Liability

A) Animals
1) Livestock: fencing-in or fencing-out
2) Wild animals: S/L for owner/possessor (except public zoos)
3) Domesticated: S/L IFF (reason to) know animal vicious (+ statutes)
B) Abnormally dangerous activities
1) S/L, but limited to type of harm that makes the activity abnormally dangerous
(i) High risk + great harm
(ii) Can’t eliminate risk through reasonable care
(iii) Not common usage (or inappropriate in that location)
(iv)Value of activity to society
2) Policy & rationale
(i) Non-reciprocal risks; Accuracy; Administrative costs; Activity-level effects

XIII) Damages
A) Compensatory
1) Medical expenses
(i) Avoidable consequences
(ii) Collateral source rule (non-gratuitous + abrogated by statute)
2) Lost earnings
3) Lost earning capacity ( homemakers  mkt value homemaking OR opportunity cost)
4) Pain & suffering: req conscious (physical pain/mental suffering) , per diem argument
5) Hedonic damages  loss of enjoyment of life
(i) Split: some req consciousness (like P&S) or group w/in P&S
B) Punitive
1) malice (intent/purpose to harm) OR implied malice (wanton/reckless disregard)
2) Notice & due process  both of liability & amt liable
(i) Degree of reprehensibility of D’s conduct
(ii) Disparity btw actual/potential harm  punitive award
(iii) Disparity btw civil penalties for comparable conduct  punitive award
(iv)*1:9 limit
Torts Attack Sheet

XIV) Products Liability  S/L

A) Cause of action vs seller of product

1) Defect (unreasonably dangerous for intended use)
(i) Manufacturing  departs from intended design
(ii) Design  design itself creates unreasonable risk (*need feasible alternative)
(iii) Marketing  bad instructions or failure to provide adequate warning
2) Causation (actual & proximate)
3) Injury (personal or property)

B) Affirmative defenses
1) C/N  “assigning shares of responsibility”
(i) Nature of the risky conduct (whether aware/indifferent to risk OR intent harm)
(ii) + strength of causal connection
(iii) *implied A/R  knowing, unreasonable, voluntary decision to use despite
defect

C) Manufacturing defects  ready-made comparison to see if defective

D) Marketing defects: inadequate warning
1) Open & obvious (*but maybe design defective despite)
2) Heeding presumption (*but rebuttable)
3) End user or intermediary (note: no learned intermediary for contraception)
4) *similar to negligence
(i)  exception: NJ asbestos case (liable despite couldn’t know risk at the time
E) Design defects
1) Usu must show (expert, data) feasible, safer alternative (available at the time of mfr)
2) Tests
(i) Risk – utility test (R(3d))
(a) Utility vs Risk (probability * extent)
(b) Safer alternative available
(1) Can make safer w/o decrease utility, increase cost (too much)
(c) User ability to avoid injury w/ reasonable care
(d) Mfr anticipate user’s awareness of risk & avoidability (common knowledge,
obvious, adequate warning)
(e) Possible loss spreading by Mfr
(ii) Reasonable consumer expectations (R(2d))
(a) Average consumer has expectation re: min safety required
(iii) CA  CE (no expert) unless very complex, etc.  R-U