Abnormally dangerous activities. See Strict liability
Affirmative defenses
assumption of the risk. See Assumption of the risk
comparative negligence. See Comparative negligence
consent. See Consent
self-defense. See Self-defense
Assault
act requirement
“mere words” exception
apparent present ability
apprehension
defined
distinguished from fear
of a contact not a battery
of harm to another
of harm to chattels
attempted battery distinguished
battery along with assault
complaint for
conditional threats
consequences, unexpected
criminal assault distinguished from civil
damages
intangible
punitive
unexpected consequences
unforeseeable injury,
defenses
definition
fear distinguished from apprehension
future harm
generally
hypersensitive plaintiff
imminence
compared to distress after the fact
intent. See Intent
intent for battery as sufficient
“mere words” exception
mistake-
distinguished from transferred intent-
negligence distinguished
pleading claim for
proximate cause limit
purpose
reasonable perception test
Restatement definition
threats of future harm
transferred intent
type of contact anticipated
accepted contacts
Assumption of the risk
comparative negligence approach
contract, assumption of risk through
contributory negligence compared
defense compared to lack of prima facie case
employment context
express assumption
absence of written contract
exceptions to enforcement
plaintiff unaware of terms
unknown risks
generally
implied assumption
affirmative defense of
negligence vs. inherent risks
plaintiff’s lack of understanding of risk
primary or “limited” duty cases
negligence analysis compared
primary implied assumption
products liability cases. See Products liability
rationale
relation to prima facie case of negligence
rescue doctrine
secondary assumption
categories of
common law approach
comparative negligence, effect on
contributory negligence compared
effect of reasonable secondary assumption
examples
injury due to different risk
reasonable vs. unreasonable
relation to prima facie case
subjective knowledge of risk
Battery
act requirement
appeal of felony
complaint for
consequences, unanticipated
contact requirement
consequences distinguished
harmful defined
indirect contacts
light as contact
nature of harmful or offensive contact
objects associated with the body
offensive contact
smoking as contact
damages
defenses
definition
generally
harmful contacts
intent. See Intent
jury instruction
liability for unanticipated consequences
motive distinguished from intent
negligence distinguished
offensive contacts
hypersensitive plaintiff
Restatement definition
pleading claim for
Restatement definition of act
sleeping plaintiff
smoking as battery
transferred intent
trespass to chattels distinguished
unidentified victim
Causation. See Cause in fact; Proximate cause
Cause in fact
Anderson case
apportionment of damages
asbestos cases
burden of proof shifted
“but for” test
counterfactual analysis
evidence to assist jury
problem cases
causal capacity problem
concurrent causes
correlation distinguished
cumulative exposure
DES cases
market share analysis
variations on Sindell approach
epidemiological studies
exceptions to “but for” test
future harm
generally
Hymowitz case
increased risk, compared to loss-of-a-chance claim
irrelevant negligence
loss-of-a-chance cases
malpractice case
market share analysis
multiple causes
asbestos cases
concurrent negligence
cumulative causation
innocent concurring cause
nature as cause
partial “but for” cause
particularistic proof
plaintiff’s negligence as cause
preempted cause
proof, practical problems
proximate cause distinguished
rationale for requirement
several liability, relation to
Sindell case
sine qua non
statistical proof as insufficient
substantial factor test
Anderson case
asbestos cases
cumulative exposure
loss-of-chance cases
relation to “but for” test
relation to proximate cause
role of jury
Third Restatement approach
Summers case
distinguished
toxic chemicals
Circumstantial evidence. See Res ipsa loquitur
Collateral source rule. See Damages
Comparative negligence
absent tortfeasors, effect of
assumption of risk, effect on
basic approaches
causation as basis of comparison
comparison of negligence or causation
comparison of negligent and intentional tortfeasors
comparison to all or each defendant
contribution, effect on
contributory negligence compared
counterclaim
early approaches
equal division rule
generally
historical development
intentional tortfeasor
joint and several liability, relation to
jury instructions
last clear chance, effect on
modified
multiple plaintiffs
not-as-great-as approach
applied
not-greater-than approach
applied
pure
applied
several liability
slight/gross
special verdict
examples
statutory changes to
Complaint
assault and battery
contribution
wrongful death
Consent
as defense or element of plaintiff’s claim
based on reasonable appearance
conditional threat
contact, consent to as opposed to consequences
defense barred by statute
delegation of consent
emergency treatment
nonmedical provider
extension of surgery
generally
medical treatment
extension of treatment
unconscious patient
mistake
misunderstanding of facts
refusal of medical treatment
relative, consent by
response to conditional threat
scope
substituted consent
Consortium
child’s claim for
pleading
compared to emotional distress claims
compared to grief
economic losses of consortium claimant
evidence of
generally
grief distinguished
history of claims for
meaning
non-family member
parental or “filial” consortium
pleading claims for
secondary economic loss
sibling claims
compared to indirect infliction
social activities
spouse’s right to recovery
where spouse dies
Contact. See Battery
Contribution
common law rule
“common liability,”
comparative or “proportional” contribution
complaint for
credit for settlement
employee’s right from employer
employer’s liability
equity principles
generally
impleader for
independent contractor, contribution from employer
insolvent tortfeasor
intentional tortfeasor
joint liability
as prerequisite
plaintiff’s right to recover fully from joint tortfeasor
limitations period for
methods of enforcing
proportional
proportional credit for settlement
pro rata credit for settlement
pro rata share
effect of insolvency
separate action for
settlement, effect on
contribution from settling tortfeasor
contribution in favor of settling tortfeasor
good faith requirement
payment requirement
proportional credit
pro rata credit for
compared to dollar credit
Uniform Act
several liability
uncollectible shares, redistribution
Uniform Contribution Among Joint Tortfeasors Act
amount of contribution
credit for settlement
joint tortfeasors, prerequisite to contribution
judgment against one tortfeasor, effect
limitations period for seeking contribution
methods of enforcement
pro rata share
settlement, effect of
standard for right of contribution
text
Conversion
destruction of property
factors in determining liability for
brief intermeddling
damage to chatte
lack of good faith
generally
intent
mistake
purchaser from person without title
replevin
Restatement definition
selling another’s chatte
liability of purchaser
trespass to chattels compared
Damages
asbestos cases
assault
bifurcation of trial
caps on noneconomic damages
collateral source rule
compensatory goal
contribution. See Contribution
disability
compared to loss of enjoyment
compared to lost earning capacit
earnings and earning capacity
adjustment for substitute employment
child, valuation
collateral source rule
factors in calculation
future
pension and Social Security income
pre- or post-accident work life expectancy
spouse not currently employed outside home
economic distinguished from noneconomic damages
elements
emotional distress. See Emotional distress
evidence from comparable cases
future damages
earning capacity
medical expenses
standard of proof
generally
intentional torts
loss of enjoyment of life
as part of pain and suffering
as separate element of damages
future, use of pre-accident life expectancy
survival claims for
unconscious plaintiff
loss of life as element of damages
realization of shortened life expectancy
recovery of loss of enjoyment as form of
medical expenses
collateral source rule
future, standard of proof
increased risk approach
paraplegia
noneconomic damages
several liability for
statutory caps on
pain and suffering
comparing awards in other cases
future
jury instruction
tinnitus, valuation of
unconscious plaintiff
present value adjustment
punitive
secondary economic losses
separate trial on
single recovery rule
exception for asbestos cases
thin skull rule, intentional torts
wrongful death. See Wrongful death
Defense of other. See Self-defense
Duty
administrative problems, relevance to duty
aiding or rescuing victim as source of duty
burden on defendant, relevance to decision to impose duty
chilling effect of duty
coronation, new King of Torts
doctor, duty to aid
duty to warn
emotional distress, duty not to inflic
employer’s duty to control employee
examples of close cases
exceptions to immunity for inaction
extent of duty where aid rendered
factors in decision to impose
failure to act, no-duty rule
exceptions
fetal injury cases, limited duty
foreseeability of harm, relevance to duty
proximate cause compared
generally
good Samaritan laws
gratuitous services exception
liability for negligence in aiding
jury instruction
legislative policies, relevance to duty
limits on liability for risk creation
morality, relevance to duty issue
mother, duty to unborn child
no-duty rule, failure to act
exceptions
proximate cause compared
question of law
rescuer, duty of care owed
risk creation as source of duty
bystander who renders ai
emotional distress cases
exceptions to general liability for risk creation
fetal injury cases
nonnegligent risk creation
Soldano case
source of duty
special relationship as source of duty
to perpetrator
to victim
spouse, duty to control
Tarasoff case
to warn
Economic analysis
negligence claims
proximate cause
Emotional distress
“bystander” claims, examples
Dillon rule
awareness of defendant’s negligence as prerequisite
close relationship requirement
distinguished from impact rule
factors as prerequisites or guideline
mistake as to identity of victim
mistake as to seriousness of injury
pleading facts sufficient for
requirement that indirect victim witness accident
requirement that indirect victim witness negligent act
resulting physical injury as additional requirement
direct duty as basis for
direct infliction
duty issue
foreseeability standard
Dillon as foreseeability test
generally
grief distinguished
historical approach
impact rule
recovery for distress due to injury to another
recovery for distress due to injury to non-family member
parasitic damages
pleading claims for
rationale for limiting recovery
relation to elements of negligence claim
resulting physical injury
critique
Dillon rule, additional requirement
impact rule distinguished
injuries found sufficient
zone-of-danger cases, additional requirement
sibling claims
zone-of-danger rule
application where no zone of danger
pleading
rationale
recovery for non-family member
requirement that indirect victim fear for self
requirement that indirect victim suffer physical injury
Employee and employer. See Vicarious liability
Exams. See Torts exams
False imprisonment
arrest privilege
confinement
bounded area
means of escape
consent
implied consent to airline regulations
limited
threat of force or to property
to avoid embarrassment
damages
duty to release
generally
intent
necessity
privileges
proximate cause limit
Restatement definition
shopkeeper’s privilege
application to bystander
mistake in exercising
Second Restatement
First decree, future King of Torts
Glannon, as torts sovereign
Hand formula. See Negligence
Indemnity. See Vicarious liability
Independent contractors. See Vicarious liability
Infliction of emotional distress. See Emotional distress
Informed consent. See Consent
Intent
alternative ways of proving
assault
distinguished from deliberate or voluntary conduct
distinguished from negligent conduct
generally
mistake-
motive distinguished5,
purpose or substantial certainty
relation to motive
Restatement definition
transferred intent
unidentified victim
Joint and several liability
acting in concert
acting as co-employees distinguished
apportionment of damages
common law release rule
comparative negligence cases
contribution. See Contribution
covenant not to sue
example
dividing damages between joint tortfeasors
effect on plaintiffs
economic damages
effect of judgment against one tortfeasor
generally
indivisible harm
independent acts
insolvency of one tortfeasor
instructions to jury
jury instruction, Fudd
joint and several liability, meaning
joint judgment
joint tortfeasors, meaning
as to part of plaintiff’s claim
judgment against joint tortfeasors, example
judgment against one tortfeasor as release of all
current approach
noneconomic damages
relation to causation
release of claim
effect at early common law
effect of common law rule on settlements
example
satisfaction of judgment
separate damages
settlement with one tortfeasor
covenant not to sue
example
credit for settlement amount
effect at common law
later approach allowing suit against other tortfeasors
jury instruction about
reasons for settlement
release, example
several liability
effect on settlements
examples
special verdict
sample
statutory revisions to
applied
suing one of multiple tortfeasors
“true” joint tortfeasors
Joint tortfeasors. See Joint and several liability
King of Torts, future Glannon coronation
Last clear chance, relation to comparative negligence
Loss of consortium. See Consortium
Merlin, role in products liability litigation
Mistake-
Negligence
alternatives, relevance in determining due care
as breach element of negligence claim
burden of prevention
burden of proof compared to standard of care
causation, necessity to establish claim
character, relevance to determining due care
children, standard of care
circumstances, relevance to due care
claim distinguished from negligence as breach of due care
comparative. See Comparative negligence
cost, relevance to determining due care
custom, relevance to determining due care
jury instruction
defined
as a cause of action
as an element of a negligence claim
disability, effect of
economic analysis
elements of claim for
emergency
expert
evidence as to standard of care
standard of care of an expert in ordinary activities
extreme care as standard of care
factors in exercising reasonable care
foreseeable risk, relevance to due care
compared to likely risk
extent of risk
generally
Hand formula
instruction to jury
judgment, individual’s lack of as relevant to due care
Menlove case
mental disability, relevance to determining due care
minors, standard of care
morality, relation to judgment of negligence
physical disability, relevance to determining due care
probable risk compared to foreseeable risk
reasonable person
res ipsa loquitur. See Res ipsa loquitur
standard of care
children
compared to amount of care
compared to burden of proof
evidence of general exercise of due care
experts
mentally ill
physical disability
poor judgment, effect on standard of care
professionals
doctor’s standard
specialist
statute, relevance
strict liability compared
tort distinguished from breach element
violation of statute. See Violation of statute as negligence
Nondelegable duties. See Vicarious liability
Pleadings
analysis of negligence and wrongful death complaint
assault and battery
contribution
emotional distress
loss of consortium
Pompeii, local official
Privileges. See Consent; Self-defense
Products liability
assumption of the risk
§402A approach
Third Restatement approach
breach of express warranty
breach of implied warranty
business losses
causation
choice of law
comparative negligence
comparative “responsibility” statutes
misuse
§402A approach
Third Restatement approach
compared to negligence
component maker
consumer expectations test
compared to risk/utility test
damage to product
defect
design
alcohol case
warning as negating defect
failure to warn
manufacturing
defenses
economic loss from product failure
failure to warn
adequacy of warning
alcohol case
directions
drug side effect
minor risk
negligence compared
obvious danger
retail seller
history
manufacturing defect
meaning
misrepresentation
misuse
as assumption of the risk
as defense or element of plaintiff’s claim
failure to follow directions
proximate cause problem
unforeseeable misuse
negligence claims
open and obvious danger
defense where danger should be designed out
physical harm requirement
privity requirement
reasonable alternative design requirement
recovery on multiple theories
risk/utility test
Second Restatement §402A
compared to Third Restatement
elements
seller requirement
component manufacturer
retail seller
service compared to sale
state-of-the-art defense
compared to evidence of custom
defense or element of plaintiff’s case
failure to warn case
manufacturing defect case
statutory modifications
limiting claims against downstream sellers
Third Restatement
compared to Second Restatement
design defect standard
warning. See failure to warn, supra
Proximate cause
amount of harm compared to type of harm
basic principles
cause in fact distinguished
criminal act
direct cause approach
duty analysis compared
economic loss, secondary
economics perspective
examples, unexpected consequences
extent of harm distinguished from foreseeability of harm
foreseeability approach
applied to examples
general or specific harm
knowledge of risk compared to foreseeability
probability distinguished
subsequent negligence
foreseeable harm
recovery denied for
unusual manner
generally
intentional act as superseding cause
intentional torts compared
jury instruction
knowledge of risk compared to foreseeability of risk
legal cause
manner of injury distinguished from foreseeability of injury
medical malpractice
Palsgraf case
variations on
Polemis case
probability distinguished from foreseeability
rationale for limit
rat vs. vat
reasonable person role play
risk rule approach
particularity of risk to be anticipated
subsequent negligence
superseding cause
intentional or criminal acts
thin skull rule
Third Restatement approach
superseding cause
transferred intent compared
unforeseeable manner of injury
Wagon Mound case
Reasonable care. See Negligence
Res ipsa loquitur
access to proof, effect of
Byrne case
circumstantial evidence compared
comparative negligence, application of res ipsa
conflicting testimony as to cause
“control” requirement
defending case based on
direct evidence compared
example cases
expert testimony
foundation facts required
conflicting evidence on
determination by judge or jury
evidence to strengthen proof of
generally
inference of negligence
instructing jury about
Fudd-faulty instructions
negligence as likely cause
examples
negligence attributable to defendant
employer/employee case
multiple defendants
proof by eliminating other causes
plaintiff’s conduct
rationale for doctrine
rebutting inference
Restatement approach
trial, effect of doctrine
Respondeat superior. See Vicarious liability
Self-defense
aggressor’s self-defense
against excessive force
against reasonable force
duty to retreat
deadly force
attack in the home
defined
duty to retreat (or not)
mistake as to necessity of
response to nondeadly force
Restatement view
defense of other
excessive force in self-defense
future harm
generally
injury to third party
level of force permissible
mistake as to need for deadly force
nondeadly force
offensive touchings
permissible purpos
reasonable belief as sufficien
third party
reasonable force
retaliation
retreat
before using deadly force
before using nondeadly force
third-party injury
unintended consequences
Settlement. See Contribution
Several liability. See Joint and several liability
Sovereign, future, torts
Special verdicts
Strict liability
abnormally dangerous activity defined
Second Restatement factors
assumption of risk as defense
building construction
collateral or incidental injuries from
common usage factor
compared to negligence duty
contributory negligence, relevance of
economic analysis, rationale for strict liability
employee liability for
enterprise liability for
examples of activities subject to strict liability
gasoline hauling
generally
history
importance to community
inappropriate place
limitation to land use
limitation to type of harm which poses abnormal danger
meaning
negligence
compared
of other actor as a defense
of plaintiff
non-natural use requirement
personal injury claims
pollution cases
products liability. See Products liability
products liability distinguished
proximate cause limits
question of law
rationale
reciprocity argument
Rylands case
limitation to activities on land
Second Restatement standard
compared to Third Restatement
applied to chemical spill
applied to gasoline hauling
Third Restatement standard
relation to land use
wild animals
Strict products liability. See Products liability
Survival claims. See Wrongful death
Torts exams
bluebook garden, perennial dandelions
Abstract Expressionist
Antiphonalist
Editor
Flyswatter
Reiterator
Tantalizer
classic mistakes
disclaimer
generally
IRAC
“A” as crucial
applied
least meaty letters
irrelevant issues
issue analysis on
two good examples
issue spotting distinguished
length vs. strength
onions, peeling of practice exams
missed issues but peeled onions
practice questions
and answers
rainbow, sought-for pot
secret fraud fear—law professor
three answers compared
wasted study time
Town crier, Italian
Transferred intent. See Assault; Battery
Trespass to chattels
conversion compared
damage to chattel
definition
e-mail spam as trespass to chattels
generally
intent
intermeddling
invasion of privacy as
possessor as proper plaintiff
privilege to recapture chattels
Restatement definition
Trespass to land
attempted trespass
causing trespass by another
consent to
damage not an element
defined
entry requirement
generally
intent requirement
mistake
mistake as to scope
necessity privilege
liability for damages
nuisance compared
owner unaware
physical entry
underground
pollution case
proper plaintiff
Restatement definition
title, protection through action for trespass
Vicarious liability
employer’s liability. See respondeat superior, infra
generally
independent contractors
contractor’s liability where duty nondelegable
contribution from employer
employer’s liability
indemnity from contractor
liability for employer’s own negligence
negligence requirement
nondelegable duties
collateral risks
nonnegligent injury
peculiar risk
public place
respondeat superior
contribution from employer
effect on employee’s liability
employee, defined
applied to doctors and other professionals
factors in determining
horseplay
indemnity from employee
intentional torts, liability for
liability for employee’s torts
where employee violates work rules
meaning
omissions, liability for
rationales
scope of employment
Violation of statute as negligence
arguments for and against equating violation with negligence
burden of proof
causation issue where statute violated
class of persons protected
comparative negligence, effect of
lack of knowledge of provision of law
compliance with statute as establishing due care
effect of evidence of excuse
effect of unexcused violation
evidence of negligence approach
distinguished from per se and presumption
jury instruction
exam example
examples of statutory standards of care
excuses recognized for violation
effect of lack of excuse
generally
instruction
nature of harm statute protects against
negligence per se
persuasive effect of proof of violation
presumption of negligence approach
rationale for allowing excuses
regulation, violation of as negligence per se
relevance requirement
relevance to due care where statute not directly applicable
Restatement approach
role of judge in determining relevance of statute
situations where doctrine dispositive
statutory purpose
class of persons protected
multiple purposes
nature of harm statute protects against
Wild animals. See Strict liability
Wrongful death
beneficiaries
bluebook dandelion
choice of law impact
common law denial of recovery
complaint asserting wrongful death claims
consortium claim, relation to wrongful death
consortium-type damages
contributory negligence
of beneficiary, effect on right to recover
of decedent, effect on right to recover
damages
beneficiaries
child decedent
consortium damages
economic loss to third party
elements of damage
loss of enjoyment
loss of life
pecuniary loss rule
elements of claim for
example case
fetus, claim for death of
future earnings
generally
Hawaii statute
applied
Kansas statute
applied
Lord Campbell’s Act
loss-of-enjoyment damages
loss of life as element of damages
loss-to-the-estate approach
distribution to beneficiaries
North Dakota statute
pecuniary loss rule
applied
pleading claims for
proper plaintiff
relation to negligence and intentional tort
sample statutes
South Carolina statute
applied
survival statutes
abatement at common law
application where tortfeasor dies
applied
damages
death unrelated to tort
fetal pain and suffering
future lost earnings
joined with wrongful death claim
loss-of-enjoyment damages
Maine statute
medical expenses
pain and suffering
pleading claims for
wrongful death distinguished
underlying tort, requirement of
Virginia statute
amendment
applied