Index

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