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Torts I:  Outline (Several of Causes of Action to Analyze)
I. Torts Defined and Sources of Tort Duties (Policy Reasons for Torts)
A. Tort: A tort is a civil wrong, arising from a Breach of Duty imposed outside of a contractual obligation (exception for special duties under contract), for which the law provides a remedy.
1. HARM:  For a tort to exist, a harm must exist caused by the defendant in some way.
a. Fault:  Responsibility for ∆’s wrongdoing or failure to prevent a foreseeable action that results in harm.  About intent, not the harm.
2. Who Decides Tort Law?
a. Jury:  If reasonable people could differ on the facts, it’s a issue of fact and is decided by jury.
b. Judges:  If no reasonable people could find otherwise, it’s a matter of law and judge decides.
B. Three Major Classes of Torts:
1. Intentional (Fault):  A civil wrong caused by intentional act of tortfeasor.
2. Negligent (Fault):  Failure of tortfeasor to take sufficient care when a legal duty is owed.
3. Strict Liability (No Fault):  A defendant is liable no matter what precautions were taken.
C. Sources/Policies of Tort Law
1. Corrective Justice
a. To correct wrongs of defendants from a moral perspective.
2. Distributive Justice
a. To provide a system that works for the good of society by using actors who are better suited to absorb the costs of tort by redistributing the loss through product prices, et al.
3. Deterrence
a. To deter defendants from engaging in acts that can cause harm to others.
4. Process
a. To have a system that works and is understandable, applicable.  Just as valid a reason for creating torts or avoiding their creation.
b. Rules v. Standards:  Rules are inflexible and explicit (ex.  Do not exceed 40 MPH).  Standards are still rules, but leave more judge discretion (ex. Drive reasonably and prudent.)  Most tort law involves standards, not rules.
II. Intentional Torts
A. The Prima-Facie Case  [ Intent + Harm = Intentional Tort ]
1. Intent generally:
a. ∆ desires to cause the consequences of his act; OR
b. consequences are substantially certain to result from ∆’s act(s).
(1) Types of Intent:
(a) Specific Intent:  ∆ desires his conduct cause the harm of the specific tort in question.
(b) General Intent:  ∆ acts knowing with substantial certainty his conduct will cause the harm.
(c) Transferred Intent:  ∆ intends conduct to harm one party but harms another instead.  Intent transfers to whomever is harmed.
I. Applies ONLY to:  battery, assault, false imprisonment, trespass to land, and trespass to chattels.
II. Intent can transfer from intended target to actual π contacted; AND
III. Intent can transfer from tort to tort (so an assault that turns into a battery still counts);
(d) Minor/Incompetent Persons:  These ∆s are generally liable for intentional torts, even when they lack knowledge or the harm is foreseeable.
2. Battery
a. Intent:  ∆ desires to cause contact; or
(1) Note:  Touching an object “intimately connected” to a person (such as an object he or she is holding) can also be battery.
(2) Contact can be direct or indirect contact - indirect like throwing a stone, touching with a pole, or giving someone poison)
b. Intent:  ∆ knows with substantial certainty that contact will occur.
(1) In Dual Intent Jurisdictions, also:
(a) ∆ desires to harm, or is substantially certain the contact will harm the π; or
(b) ∆ desires to offend, or is substantially certain the contact will offend the π.
c. Harm:   ∆ must actually (a) cause the contact to result and (b) the contact must be harmful or offensive.
(1) Contact is harmful if it causes physical impairment of the body, physical pain, or illness to π.
(2) A contact is offensive if it would offend a reasonable sense of personal dignity (not hypersensitive persons).
(a) Hypersensitivity Exception:  If the ∆ is aware of the hypersensitivity of the π, then the contact becomes offensive.
3. Assault
a. Intent:  ∆ intends to put the π in apprehension of an imminent harmful or offensive contact.
b. Harm:  π actually and reasonably apprehended an imminent harmful or offensive contact.
(1) Fear:  Is not a requirement; just apprehension.
(2) Future Acts:  Lack imminency and therefore are insufficient acts for assault.
(3) Words Alone:  Without an overt act alongside them, words alone are not assault.
4. Intentional Infliction of Emotional Distress/Harm - aka Outrage ßß  *(See Rel. to Negligent Infliction of Emotional Distress)
a. Intent:  ∆’s conduct is extreme and outrageous; and
(1) Mere rude behavior does not count - considered “mere insult”.
b. Intent:  ∆ intended to cause severe emotional distress or at least was reckless in risking that distress;  and
c. Harm:  ∆’s actions actually caused severe emotional distress.
(1) The severe emotional distress cannot be the effect of some other tort; it must be the primary consequence of ∆’s action.
(2) Third persons cannot claim severe emotional distress unless:
(a) The third party is present at the time ∆ commits harmful act; and
(b) The mental effect can be reasonably anticipated by the ∆ to cause harm to third persons.
d. Special Note:  This is your Fallback Tort:  can always claim it in any tort complaint.
5. False-Imprisonment (a Continuing Tort)
a. Intent:  ∆ intends to confine the π or a third person fixed by the ∆; and
b. Harm:  ∆’s act directly or indirectly results in confinement; and
c. Harm:  π is conscious of the confinement or is harmed by it.
(1) Exception to c.:  ∆ may be liable even if a child or mentally incompetent person is unaware of the confinement.
(2) Confinement is:
(a) π is contained within fixed boundaries completed by the ∆; and
(b) π’s confinement is complete although there is reasonable means of escape, unless the π knows of it; and
(c) Exception:  ∆ is not liable for False Imprisonment by intentionally preventing π from going in a particular direction which he has a right or privilege to go.
(d) False Arrest (a species of False Imprisonment):  Rules for determining False Arrest are the same; only difference is an officer of the law has committed the act.
6. Trespass to Land (a Continuing Tort) (Gomez:  Not on Exam) - Trespass only matters in Negligence analysis.
a. Intent:  ∆ intentionally enters the land of π; or
b. Intent:  ∆ causes a thing or third person to enter π’s land; or
c. Harm:  ∆ remains on the land; or
d. Harm:  ∆ fails to remove from π’s land a thing which he is under a duty to remove.
(1) Note:  The trespass itself is considered the harm; harm need not be done to any legally protected interest of the π.
7. Conversion of Chattels (aka Trover)
a. Intent:  ∆ intentionally exercises dominion or control over a chattel; and
b. Harm:  ∆’s control seriously interferes with the rights of the owner.  (Note:  Money is not a chattel because it is “intangible”.)
c. Remedy: Replevin can be used to use court to repossess Chattel.
d. Damages:  ∆ is liable for the full value of the Chattel at the time of conversion.  Damages Factors:
(1) Duration of dominion or control;
(2) ∆’s intent to assert a right inconsistent with the π’s right of control;
(3) ∆’s good faith;
(4) Harm done to chattel;
(5) Inconvenience and expense caused to π.
8. Trespass to Chattels (Just short of conversion. Only difference now is the damages offered in each.)
a. Intent:  ∆ intentionally disposses or intermeddles the chattel of π; and
b. Harm:  The chattel’s value is diminished from time of dispossession/intermeddling.  (e.g. Hitting a person’s animal).
c. Damages:  ∆ is liable for rent for the loss of the chattel for the time it was gone.
B. Defenses to Intentional Torts:  The Privileges (These are Affirmative Defenses that Must be Raised as Response to a Complaint)  Affirmative defenses can only be asserted if ∆ stipulates the facts of the charge (they did was π claimed), but affirmatively defends against.
1. Privilege
a. Under certain circumstances, a ∆ may not be liable for conduct that would ordinarily subject him to liability. Privileges are outlined 2-5:
2. Self-Defense and Defense of Others (∆ use of force)
a. Self-Defense is triggered when:
(1) ∆ may use force against π (battery); or
(2) ∆ may cause an apprehension of imminent harmful or offensive contact to π (assault); or
(3) ∆ may imprison or confine π (false imprisonment);
b. IF ∆ reasonably believes the π is intentionally or negligently is:
(1) Imminently going to cause harmful or offensive contact to ∆ or third-person; or
(2) Imminently going to confine or imprison ∆ or third person.
c. Force that May Be Used:  Only the amount of force/confinement reasonably necessary to prevent or repel the impending contact or confinement.
(1) Threat of Force:  You may threaten (but not use) an amount of force or confinement that would exceed what is reasonable or necessary.
(2) Excessive Force:  Is not privileged and ∆ is liable for it.
(3) Provocation:  Being provoked does not permit self-defense to be invoked.
(a) Good example:  If you’re attacked with gun, you can use a gun.  If attacked with toothbrush, you can use toothbrush, not gun.
d. When Retreat is Necessary:  In some cases, if a safe and reasonable retreat is available, you must retreat, rather than stand and defend yourself.
(1) If impending threat would NOT, in the mind of a reasonable person, cause death or serious bodily injury, you may stand your ground and defend yourself; not obligated to retreat.
(2) If impending threat COULD case death or serious bodily injury, in the mind of a reasonable person, and there is a reasonable retreat available then:
(a) You must use the escape route; and
(b) Limit your actions to threats; and
(c) Limit use of force or confinement to something less than intended to cause death or serious bodily harm.
I. Exception:  In your own home, you may use force or confinement intended or likely to cause death or serious bodily harm.
3. Defense of Property and/or Repossession of Property
a. Reasonable force may be used, not intended to cause death or serious bodily harm, to prevent or terminate another’s intrusion upon the ∆’s land or chattels, if:
(1) The intrusion is not privileged; and
(2) ∆ reasonably believes the intrusion can be prevented or terminated by the force used.
(a) Life & Limb Limitation:  The value of human life and limb outweighs property rights; no privilege to use force intended or likely to cause death or serious harm against another by a property owner is justified unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. - from the Restatement of Torts
4. Consent
a. Express Consent:  π consents to ∆’s actions which invade π’s interests;
(1) Expressly stated consent; verbally or in the written rules;
b. Implied Consent:  π’s consent is implied by law or apparent from π’s conduct;
(1) Medical treatment of unconscious patient is implied by law;
(2) Football tackles are implied consent by apparent conduct; or Boxing same idea (not stated, but understood);
c. Negated by:
(1) Incapacity
(2) Duress (Economic, which is nebulous and harder to prove v. Physical, which is easier to prove)
(3) Exceeded Consent
(4) Revoked Consent
(5) Fraud:  Consent acquired by fraud is no consent at all.
(6) Extreme Age (youth)
(7) Insanity
5. Necessity - (for Trespass to Land or Chattel only in emergency situations only)
a. Public
(1) An important public interest is protected by ∆’s threatened or actual harm caused to chattels or land;
(2) Public Necessity is an absolute defense:  ∆ is not liable for either trespass or the damages to the property or chattel.
b. Private
(1) ∆’s necessity supersedes the π’s privilege to defend chattels or land;  (boat dock example; need to dock but harms dock)
(2) Private necessity is a qualified privilege; the ∆ is not liable for trespass but is liable for any damages.
6. Parental Discipline
a. Parents have a privilege to use force and confinement as discipline as long as it is deemed by the courts to be reasonable.  The limits of force, however, are ill-defined.  Supervising of children are entitled to this defense as well, but are held to a higher standard than the parents.
III. Negligence
A. The Prima-Facie Case - 5 Elements
1. Duty & The Standard of Care (Duty Owed) - Legal issues for judge only.
a. DUTY:  Does ∆ owes a legal duty to π?
(1) Always YES, unless a special No-Duty Rule says otherwise.
(2) No-Duty Rules:
(a) Nonfeasance:  Doing nothing.  A person owe no duty to another to take affirmative steps for the other’s protection.
I. Cf. to Misfeasance:  Actively take inappropriate action or given intentionally incorrect advice.  Liability it present; analyze as normal negligence.
II. Cf. to Malfeasance:  Hostile, aggressive action taken to injure the client’s interests.  Liability is present; analyze as normal negligence.
III. Exceptions to Nonfeasance:
A. ∆’s Conduct (even if innocent) causes harm to π
B. Prior Conduct Creates Risk of Harm to π
C. Statutorily Imposed Duty
D. Voluntary Undertaking, aka Co-Ventures (duty to take care of friend that you’re hanging out with)
E. Special Relationships (see (c) below)
F. Other Undertakings (Undertakings=Promises)
(b) Mothers owe no duty to their unborn children;
(c) Obvious and Open Dangers;
(d) Controlling Third Persons: ∆ owes no duty of care to protect the plaintiff from third person’s conduct.
I. Exceptions:
A. Statutorily imposed duties; or
B. Undertakings to Do So (Promises)
C. Special Relationships
1. Between ∆ and π:
a. Carrier-to-Passenger
b. Innkeeper-to-Guest
c. Landowner-to-Entrant (includes trespassers)
d. Employer-to-Employee
e. School-to-Student
f. Landlord-to-Tenant
g. Custodian-to-Person in Custody
h. Researcher-to-Subject
2. Between ∆ and third persons:
a. Landlord-Tenant (when landlord has right to control danger from tenant)
b. Employer-Employee (Employer has to facilitate the tort somehow)
c. Custodian-Ward
d. Parent-Dependent, Minor Child
e. Therapist-Patient (with actual or constructive knowledge of danger)
D. Negligent Entrustment of Chattel:  A person in control of a chattel owes a duty of reasonable care not to entrust that chattel to a person whom the entruster knows or should know is apt to use it a a dangerous way.
E. Providers of Alcohol
b. Standard of Care:  To comport with the Standard of Care prescribed by law:
(1) Prudent Person Standard / Reasonable Care / Due Care:    The duty of care all people owe to one another to minimize the risk of harm to others.  What would be done by a reasonable and prudent person under the same or similar circumstances.
(a) What precautions are ‘reasonable’ depends on the risk of harm involved and the practicability of preventing it.
(2) Negligence Per Se - Statutory Negligence (if present, Standard of Care owed is automatically satisfied)
(a) ∆ violated the statute;
(b) Statute is a safety statute;
(c) ∆’s act cause the kind of harm the statute was designed to prevent (specifies conduct prohibited);
(d) π was within the Zone of Risk (in other words, π was a class of persons the statute is designed to protect).
I. Excuses:  Did the ∆ take reasonable actions to attempt compliance with statute?  If so, no Neg. Per Se
(3) Mentally versus Physically Disabled:
(a) Mental Disability:  Standard of Care DOES NOT change in light of a mental disability; the mentally disabled are liable for negligence.
(b) Physical Disability:  But people for physical disabilities DO have a different, lesser standard of care in negligence cases.
(4) Children: Dependent upon age of child, standard may lower.
(5) External Circumstances:
(a) Dangerous Circumstances: Higher standard; (driving a car at high speed)
(b) Emergencies:  Possibly a lower standard (when attempting to avoid the emergency danger present).
(6) Special Duties of Care:
(a) Landowners/Possesors:  Duties of Care owed by the landowner to individuals on its land depend on what classification the individual falls under (and your status can change):
I. Trespasser:  Anyone with no legal right (thus, not privileged) nor permission to be on the land of landowner.
A. Duty Owed:  Only to avoid intentional, wanton, or willful injury (applies when the landowner has NOT discovered or received notice of imminent danger to entrant).  In addition to limited duty, the landowner has the privilege of using reasonable force to expel the trespasser.
B. Undiscovered Trespassers:  Reduces the standard of care required.
C. Discovered Trespassers:  Ordinary Standard of Care is owed if:
1. ∆ knows or should have known that π was on the property; and
2. ∆ knows or should have known that π was at risk of harm.
D. Frequent Trespassers:  Ordinary Standard of Care is owed if:
1. ∆ knows that an area of land is frequently used by trespassers; and
2. ∆ knows that trespasser could encounter risk of harm there.
E. Children Trespassers:  Ordinary standard of care owed if:
1. If Attractive Nuisance, the Attractive Nuisance Doctrine applies making the ordinary care standard apply.
a. Attractive Nuisance Doctrine:
(1) The place where the condition exists is one on which the possessor knows or has reason to know that children are likely to trespass; and
(2) The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm children,
(3) The children, because of their youth, do not discover the condition or do not realize the risk involved in coming within the area made dangerous by it;
(4) The burden of eliminating the danger are slight as compared with the risk to children involved; and
(5) The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
II. Invitee:  Someone on the land of landowner 1) for pecuniary benefit of landowner or 2) on premises held open for the general public.  1) Business Invitee and 2) Public Invitee.
A. Duty Owed: Reasonable Standard of Care / Prudent Person Standard.
III. Licensee:  Someone on the land with permission, but limited license to be on the premises; someone who is neither a Trespasser nor an Invitee.  This category typically includes “social guests” rather than placing them in the invitee category.
A. Duty Owed: Same as for Trespasssers.
(b) Lessors (Landlords):
I. Duty Owed:  The lessor (landlord) owes the ordinary standard of care.
A. Owes NO duty to trespassers.
(c) Special Relationships:  Automatically create a basis for a duty of care:
I. Carrier-to-Passenger
II. Innkeeper-to-Guest
III. Landowner-to-Entrant (includes trespassers)
IV. Employer-to-Employee
V. School-to-Student
VI. Landlord-to-Tenant
VII. Custodian-to-Person in Custody
VIII. Researcher-to-Subject
(7) Policy Note on Special Relationships and Classification System:  One problem with this entire classification system is that 9 times out of 10, you end up at a “duty of reasonable” care, which is why the California courts simply got rid of it.
(8) Contractual Duties:  Tort duties can be created, modified, or limited by contracts, informal undertakings, or even by mutual and reasonable expectations between the parties.
(a) Obligations in law are tort obligations;
(b) No tort liability for nonfeasance;
(c) Breach of Contract does not provide for recovery of personal injury in tort; separate causes of action must be proven separately.
(9) Strict Liability: If present, then the standard of care analysis is unneeded.  (Gomez = Not on Exam)
(a) ∆ who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity (to persons, land, or chattels):
(b) An activity is abnormally dangerous if:
I. the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and
II. the activity is not one of common usage.
(c) An ultrahazardous activity is one which necessarily involves a risk of serious harm that cannot be eliminated no matter how much care is used and one which is not a matter of common usage.
I. Animals:
A. A possessor of a wild animal is subject to strict liability to π for harm done by the animal to the π’s body, land, or chattels.
B. A possessor of domestic animals (dogs, cats, cows, mules, and bees) is NOT strictly liable unless ∆ has knowledge of the dangerous propensities of the animal.
C. Exception:  The One-Bite Rule:  Without knowledge of a domestic animal’s propensities, an owner is not liable for injuries caused; however, after the first bite, such knowledge is presumed.  Thus every dog or animal is entitled to one free bite.
(d) Defenses to Strict Liability:
I. Assumption of the Risk:  a π that assumes the risk cannot recover using strict liability.
II. Contributory Negligence of π is NOT a defense against Strict Liability
2. Breach of the Standard of Care (Breach of Duty) - Fact issues for jury; unless there is no triable issue of fact; summary judgment.
a. Determining Unreasonable Risk - B < P*L
(1) B = Burden of the Untaken Precaution or the ‘Should Have Done’
(2) P = The Probability of the Loss Happening
(3) L = Loss & how serious the potential loss.
(4) Unreasonable Risk Taken or Negligent when:
(a) The amount of the PL side when calculated is greater than the B value.
(b) If B value is less, no negligence, no unreasonable risk.
b. Evaluating the Underlying Conduct (to determine if it constitutes “unreasonable risk”)
(1) Common Knowledge
(2) Defendant’s Own Rules of Conduct
(3) Industry Custom
c. Proving the Underlying Conduct
(1) Burdens and Standards of Proof
(a) π bears burden of proving Prima Facie case by a preponderance of the evidence;
I. Burden of Production:  Must produce some evidence.
II. Burden of Persuasion:  Must convince.
(b) ∆ bears the burden of proving any Affirmative Defenses.
(c) Standard of Proof:  In tort, almost always by preponderance of the evidence (cf. to:  beyond a reasonable doubt for criminal law.
(2) Evidence
(a) Direct Evidence:  Supports the truth of an assertion directly; direct proof of fact.
(b) Circumstantial Evidence:  Evidence of one fact that permits inference of another fact.  Res Ipsa Loquitur is proven by this kind of evidence.
d. Res Ipsa Loquitur - “The Thing Speaks for Itself”
(1) Elements of both Duty & Breach are met by this claim if proven.
(2) An act/accident doesn’t happy unless someone is negligent;
(3) Other responsible causes, including conduct of the π or third persons, are eliminated by the evidence (complete elimination is not necessary);
(4) ∆ who has exclusive control of the instrumentality that caused the harm strengthens claim (but not necessary);
(5) The negligence is within the scope owed by ∆ to π;
(a) Note:  Res Ipsa Loquitur does not create a duty to π; it had to exist to begin with.
(6) Res Ipsa Loquitur is a claim for negligence ONLY; not gross negligence or recklessness;
(7) π must demonstrate that obtaining evidence was not possible;
(8) Res Ipsa Loquitur can be asserted with expert testimony;
(9) If you cannot assign liability to an individual ∆, you cannot claim Res Ipsa Loquitur.
(10) Helps π survive a Summary Judgment motion.
3. Legally Cognizable Harm - Fact issues for jury; unless there is no triable issue of fact.
a. π must suffer actual injury, harm, or damage to self or property;
b. Some exceptions exist where the rule is relaxed and other harms are cognizable.
c. Special Types of Harms
(1) Emotional Harm
(a) Intentional Infliction of Emotional Distress - IIED (see Intentional Torts above as well)
I. Intent:  ∆’s conduct is extreme and outrageous; and
A. Mere rude behavior does not count - considered “mere insult”.
II. Intent:  ∆ intended to cause severe emotional distress or at least was reckless in risking that distress;  and
III. Harm:  ∆’s actions actually caused severe emotional distress.
A. The severe emotional distress cannot be the effect of some other tort; it must be the primary consequence of ∆’s action.
B. Third persons cannot claim several emotional distress unless:
1. The third party is present at the time ∆ commits harmful act; and
2. The mental effect can be reasonably anticipated by the ∆ to cause harm to third persons.
(b) Negligent Infliction of Emotional Distress - NEID 1 ßß (Risk of Physical Injury to π and π Suffers Serious Emotional Distress)
I. ∆ placed the π in risk of immediate physical bodily harm (some cases this is not necessary);
II. π actually and reasonably suffered serious emotional distress which a reasonable person would have also suffered in the same situation; and
A. Physical impact (but without intent which prevents it from being battery);
B. Physical manifestation of a demonstrable physical occurrence (like vomiting, et al.);
C. Emotional Distress alone is sufficient as a legally cognizable harm.
(c) Negligent Infliction of Emotional Distress - NEID 2 ( Physical Injury to third persons and π suffers Serious Emotional Distress)
I. Must prove ∆ committed a tort of negligence to a 3rd person resulting in physical injury (standard 5 element analysis);
II. π actually and reasonably suffered serious emotional distress which a reasonable person would have also suffered in the same situation; and
III. Either:
A. π was within the Zone of Danger (at risk of physical injury) and had fear or apprehension for own safety at time of harm; or
B. π is closely related to injured victim and present at the scene during the injury producing event.
(2) Loss of Consortium
(a) ∆ negligently harms spouse or child causing loss of familial activities and/or sexual relations;
(b) Exception:  Adult children are not valid for claims of loss of consortium in some jurisdictions.
(3) Pre-natal/Conception Torts
(a) Mothers do not owe a duty of care to their unborn children and cannot be sued for negligence.
(b) Policy:  Permitting such a tort liability would open a Pandora’s box of litigation.
(c) Third parties who injure a fetus in utero can be sued for negligence; but cannot sue the mother.
(4) Wrongful Death
(a) Survival Actions:  When a plaintiff dies, any claims he/she could have brought in court can be “revived” by the estate representative.  It is called a “survival action” and is a species of property, like a bank account or stock, which passes on to the estate.  The same is true of defendants who die; their estates are liable for tort actions committed while alive.
(b) Punitive damages may be levied against a ∆ even if compensatory damages are not established (a prerequisite in some jurisdictions).
(5) Loss of Opportunity (Medical Malpractice):  Recoverable harm for the loss of the opportunity of a better recovery based on the negligence of the attending medical treatment (or lack thereof).  May be on exam.  DOES NOT EXIST outside of medical malpractice.
4. Cause-In-Fact - Fact issues for jury; unless there is no triable issue of fact.
a. But-For Test:  π must show that But For the ∆ breach (negligence), π would not have been harmed as π claims;  the ∆ caused the harm to π;
(1) More than one ∆ can be a but-for cause-in-fact.
(a) Where two separate acts of negligence combine to cause an injury to a third party, each actor is liable, even though the injury would not have happened but for the negligence of the other actor.
b. Substantial-Factor Test:  Used when But-For test is inconclusive (multiple tortfeasors, usually);
(1) If the ∆’s conduct was a substantial factor in π’s injury, ∆ is subject to liability even if others contributed to the resulting harm.
(2) If a substantial factor cannot be determined, then the court will likely use Joint and Several Liability to assign damages.
5. Proximate Cause (Scope of the Risk) - Fact issues for jury; unless there is no triable issue of fact.
a. Limitation on Cause-In-Fact:  This is essentially a limitation on the “but-for test” of liability and cause-in-fact; because some negligent actions could go on indefinitely by a chain-of-reasoning (see p. 234 for vasectomy=fire example).  Proximate Cause = An actual cause that is a substantial factor in the resulting harm which is foreseeable.
b. Type of harm suffered by the π falls within the scope of the risk negligently created by ∆ (i.e. a reasonable person would have foreseen harm of the same type; and
(1) Intervening act or force (even an intentionally tortious or criminal one) can fall within the proximate cause ∆ negligently created as long as the intervening act or force, or one of the same type is foreseeable (splashing molten metal case example).
(2) The precise manner in which the harm occurs need not be foreseeable.
(3) The extent of harm suffered by π need not be foreseeable (the Thin Skull rule).
c. A reasonable person would have foreseen harm of the same type to a class of persons to which the π belongs.
d. Special Proximate Cause Rules:
(1) The Rescue Doctrine: Third parties injured when rescuing plaintiffs who were injured by defendant’s negligence are within the scope of the proximate cause doctrine and can recover as if they too were the plaintiff and injured by the defendant’s negligence.  The rescuer almost always falls within the scope of the risk against the plaintiff.
(2) The Thin Skull Cases:  If the defendant is guilty of tort, the harm caused is what the defendant is liable for -- even if facts unknown to the defendant exacerbate the damages that in all other cases would not occur (for example, thin skull, hemophilia, etc.).  This doctrine does not impose liability without fault.
(3) Intervening Causes:  A an event that occurs after a tortfeasor’s initial act of negligence and causes injury/harm to a victim. (Ex. Def. A puts a pile of dirt in the road, negligently.  Def. B speeds and negligently hits pile of dirt injuring his passenger.  See Page. 253.)
(4) Superseding Causes = No Proximate Cause:  All superseding causes are intervening causes; they are an unforeseeable intervening cause that relieves the defendant of liability.  Whenever you see this, it means there is NO proximate cause (typically for a subsequent injury to the first which ∆ may still be liable for).  Stated another way:  An unforeseeable intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury.
(a) Types of Superseding causes:
I. Acts of God
II. Criminal Acts of Third Persons
III. Intentional Torts of Third Persons
IV. Extraordinary Forms of Negligent Conduct
B. Affirmative Defenses (to Negligence claim)
1. Contributory Negligence
a. π has, through his own negligence, contributed to the harm he suffered. For example, a pedestrian crosses a road negligently and is hit by a driver who was driving negligently.  >> Only 5 jurisdictions have Contributory Negligence (rather than Comparative Negligence) as their rule:  AL, NC, MD, VA, & DC.
(1) How do you find π Contributorily Negligent:  Same as ∆:  apply the five elements of the Prima Facie case of Negligence.
(2) π who is 1% contributorily negligent may not recover anything from ∆.
(3) Contributory Negligence is not a defense to Intentional Torts or Strict Liability.
b. Defense against Contributory Negligence:  ∆ was malicious or reckless.
(1) Last Clear Chance Doctrine:  Under this doctrine, a negligent π can nonetheless recover if he is able to show that the ∆ had the last opportunity to avoid the accident.
2. Comparative Negligence (aka Comparative Fault Apportionment)
a. A reduction in damages awarded a π in proportion to π’s own fault;
(1) Modified Comparative Negligence Jurisdictions:
(a) Recovery for π permitted if π’s negligence is not equal to or greater than ∆’s;
(2) Pure Comparative Negligence Jurisdctions: (this is the standard used on the Multistate Bar Exam)
(a) Recovery permitted for π’s even where π’s own negligence exceeds that of the ∆.
(3) Res Ipsa Loquitur v. Comparative Negligence: Given that the “instrumentality” of a plaintiff’s injury must be in the control of the defendant for RIL to be applied, many courts now assert that any finding comparative negligence automatically rules out Res Ipsa Loquitur being asserted by the plaintiff.
3. Assumption of the Risk
a. Contractual Assumption of Risk
(1) Permitted in all jurisdictions as a complete defense;
(2) Unless contract is void as a matter of policy.  Factors to determine this:
(a) The business is of a type suitable for public regulation; or
(b) ∆’s service is of great importance to the public, and perhaps a practical necessity; or
(c) ∆ is holding itself as performing the service generally for the public; or
(d) The need for the service and the economic setting give the ∆ decisive advantage of bargaining strength.
(3) Or the harm/negligence is outside the scope of the contract.
(4) Expressed in writing, orally, or by conduct (and implied-in-fact contract).
b. Implied Assumption of Risk
(1) Is a complete defense in the five remaining Contributory Negligence Jurisdictions.
(a) Unless against some public policy.
(2) Eliminated as a defense in most Comparative Negligence Jurisdictions.
(a) Facts can still be relevant in determining duty/standard of care owed by ∆; and
(b) Whether ∆ has imposed an unreasonable risk of harm.
4. Statutes of Limitation
a. A statute that sets the maximum time after an event that legal proceedings based on that event may be initiated.  The key issue with these is when the clock starts to run.
b. The Accrual Rule:  The counting of time of the statute begins once an injury has occurred (all the elements of a prima facie case for negligence are present); this is known as “accrual” of the claim.
(1) In continuing torts, accrual does not begin until the harm has ceased.
c. The Discovery Rule:  Many jurisdictions have moderated the time at which the S of L begins.  The Discovery Rule holds that the statute begins to run when the plaintiff discovered, or should reasonably have discovered, the injury.
(1) π has to Discover:
(a) Negligent act caused harm;
(b) Their was legally cognizable harm;
(c) Harm was caused by ∆;
(d) Together this means you have an Actionable Injury:  when π discovered the negligence and the causation of the injury.
d. Tolling for Disability: The clock is not running while a plaintiff is under a disability such as minority or mental incompetence.
(1) Tolling Agreements:  Used during settlement negotiations to prevent the other side from asserting Statute of Limitations defense if the negotiations go past the Statue of Limitations deadline.
e. Statutes of Repose:  Certain industries have wanted to put more certainty back into the SoL.  So they have gotten some jurisdictions to pass Statutes of Repose, which sets an absolute limit which begins at a time specified in the statute.  For example, a construction statute of repose may state that the timing begins at the date that the house is completed and run for “x” number of years.
IV. Vicarious Liability (A Species of Strict Liability which, like damages, can potentially be applied to all torts analyzed)
A. Basic Principle
1. ∆ is liable (without fault) for harm caused by the tortious conduct of
a. Tortfeasors who are in an Actionable Relationship with the ∆; and
b. Which occurs while the tortfeasor is acting within the Scope of that Relationship.
2. Policy for Vicarious Liability:
a. The prevention of future injuries.
b. The assurance of compensation to victims.
c. The equitable spreading of losses caused by an enterprise.
d. Because businesses engage in activities where torts can occur, it is just to place liability upon the enterprise as the cost of doing business whereby the costs of such torts can be distributed by the business in terms of prices or liability insurance rates.
B. Actionable Relationships - (Holding a third-party liable because of an existing “actionable relationship”.)
1.