18 Oct Torts Outline
How else do you explain a Torts outline other than just putting one down? I have created a video on how to create your negligence outline but felt that the entire torts outline may be a little much. When creating a Torts Outline you should follow the following advice:
- Create your own outline based on your own strengths and weaknesses
- Break your tort theories into sections
- Start at the out-most point and work your way in
- Take note of areas you commonly misquote or forget
INTENTIONAL TORTS
VOLITIONAL ACT done with REQUISITE INTENT which is the CASUE of the RESULTING HARM to the P.
Intentional Torts to Persons
ASSAULT: Volitional act done with requisite intent which causes the P to suffer reasonable apprehension of an immediate battery.
BATTERY: Volitional act done with requisite intent which causes the P to suffer a harmful or offensive contact/touching.
FALSE IMPRISIONMENT – Volitional act done with requisite intent which causes the P to be confined to a bounded area.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS – Volitional act done with requisite intent which amounts to extreme and outrageous conduct and which causes the P to suffer severe emotional distress.
Intentional Torts to Property
TRESPASS TO LAND: Volitional act done with requisite intent which causes a physical invasion of the P’s land.
NUISANCE
PRIVATE NUISANCE – Volitional act done with requisite intent which causes a substantial and unreasonable interference with the P’s use and enjoyment of his land.
PUBLIC NUISANCE – Volitional act done with the requisite intent which unreasonable interferes with the health, safety, or property rights of the community at large.
CONVERSION – Volitional act done with requisite intent which causes the destruction of or serious and substantial interference with the P’s chattel.
TRESPASS TO CHATTELS – Volitional act done with the requisite intent which causes an interference with the P’s chattel.
Privileges and Defenses to Intent Torts
CONSENT – Express or implied consent which is not induced by fraud, duress, or mistake.
SELF DEFENSE – The reasonable belief of imminent and unprivileged attack with the use of reasonable force in response.
DEFENSE OF OTHERS – The reasonable belief that another is under imminent and unprivileged attack with the use of reasonable force in response.
DEFENSE OF PROPERTY – The use of reasonable non-deadly force to prevent harm from property, to recover property.
AUTHORITY – Did the D have the privilege to arrest; was there a shopkeepers privilege, was reasonable force used to maintain discipline?
PRIVATE NECESSITY – Did the D injure the property of another to avoid substantially greater harm to himself or his property?
PUBLIC NECESSITY – Did the D injure the property of another to avoid substantially greater harm to the public?
NEGLIGENCE
Where the D owes the P a duty and fails to conduct himself as a reasonable person in same or similar circumstances would and where that breach of duty is the actual and proximate cause of the P’s injury with no valid defenses.
Duty
Duty – Did the D breach a duty owed to the P? Was there a duty owed?
General rule of duty – The general rule of duty is there is no duty unless a special relationship or affirmative act. Cardozo/Andrews view as to whom the duty is owed? Was the injury to the P result from an omission to act by the D? Did the D cause the peril to the P? Did the D undertake or promise to aid the P? Did a special relationship exist between the P and the D?
IF NOT GENERAL RULE OF DUTY SEE BELOW:
Negligence Per Se – Did the D violate a criminal statute? Was the statute designed to protect the class of P from this type of injury? Was the D’s violation of statute excused? What is the effect of the violation of the statute?
Owner or occupier of land – Was the D engaged in an activity on the land? What was the status of the P? If the P was a trespasser there is no duty. The P was either known or frequent trespasser? The P was a child who is too young to know and appreciate the risk involved?
Licensee – If the P was an invitee, what duty is owed? If the P was a person off of the land, what duty is owed?
Landlord? – What duty, if any, is owed to the tenant? What duty, if any, is owed to third persons on the land? What duty, if any, is owed to third persons off the land?
Sellers of Land – Duty to disclose.
Negligent Inflection of Emotional Distress – Did the P suffer only mental distress? Did the P experience a physical manifestation of the mental distress? Is the P experiencing mental distress as a result of witnessing another being injured by the D?
Breach
Breach – Where the D failed to act as a reasonable and prudent person? Does the allowance have to be made due to acting in an emergency? Does allowance have to be made because the D was a child?
IF NOT BREACH ABOVE THEN SEE BLOW:
Res Ipsa Loquitur – Creation of an inference of negligence?
Causation
Causation – Was the D the actual and proximate cause of the P’s injury?
Actual cause – Will the But for test work? Was the D a substantial factor in bringing about the P’s injury? Will the Summers v. Tice test work? Will the Market Share Test work?
Proximate cause– Was the injury suffered foreseeable? If no, was it the extent or type of injury that was unforeseeable? If the extent was unforeseeable, does the thin skull P doctrine apply? If the type was unforeseeable, does either the Polemis or wagon mound rule apply? Was the intervening act dependent or independent? If dependent, was the act abnormal? If independent, was the act foreseeable?
Damages
Damages – Did the P suffer Damages; General or Punitive?
Defenses
Contributory Negligence – The P failed to act reasonably in his own protection, at Common Law this was a complete bar to recovery. Was the P’s negligent conduct the proximate cause of his own injuries? Could the contributory negligence of another be imputed to the P? Does the doctrine of Last Clear Chance apply?
Comparative negligence – Where the P has failed to act reasonably in his own protection, modernly this is not a complete bar to recovery. Does the jurisdiction follow pure comparative negligence? Does the jurisdiction follow partial comparative negligence?
Assumption of the risk – A knowing and voluntary waiver of the risk.
Check our next article for the completion of our Torts Outline!
