TORT LAW
Professor Alberto Bernabe
TORT LAW: COURSE OUTLINE
I. Introduction
A. Definition of a tort
B. The goals of tort law
C. Theories of liability
D. The concept of the burden of proof
E. Procedure
F. Damages and types of compensation
II. Causes of action for injuries caused by intentional conduct
A. The concept of intent
1. Alternative ways to argue intent
2. Transferred intent
B. Some causes of action based on intentional conduct
1. Causes of action for injury to a person
a. Battery
b. Assault
c. Intentional infliction of (severe) emotional distress
d. False imprisonment
e. False arrest
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C. Causes of action based on the interference with property
1. Trespass to chattels
2. Conversion
3. Trespass to land
D. Defenses in cases of intentional conduct
1. Consent
2. Defenses in cases of injury to persons
a. Self defense and defense of others
b. Shopkeeper’s privilege against claims of false imprisonment
3. Defenses in cases of injury to property
a. Defense of property
b. Recovery of property
c. Necessity
(1) Public necessity
(2) Private necessity
III. Causes of action for injuries caused by negligent conduct
A. The concept of negligence
B. Elements of the cause of action for injuries caused by negligent conduct
1. Duty and Breach of duty
a. The standard of care
b. The standard of care during an emergency
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c. The standard of care in special cases
(1) Physical disabilities
(2) Mental disabilities
(3) Children
d. How to argue what the reasonable prudent person would have done
under the circumstances (i.e., how to express what the duty is)
(1) Rules of law
(2) Common knowledge
(3) Custom
(4) Non-torts related statutes as expressions of a duty
e. The standard of care in cases of “professionals”
(1) What is a “profession” for purposes of tort law?
(2) What are the procedural consequences of classifying a case as
one involving negligent conduct by a professional?
(3) Cause of action for legal malpractice
(4) Cause of action for medical malpractice
(a) Cause of action for lack of informed consent
f. Proof of negligence: proving the argument of breach of duty
(1) Types of evidence
(2) How to use evidence to “build a case”
(3) Res ipsa loquitur
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2. Cause in Fact
a. Arguing cause in fact
b. Proving cause in fact
(1) In general
(2) Problems of proof in cases with concurrent causes and the
different alternatives courts recognize to prove cause in fact
(a) Cases combining innocent causes and culpable causes
(b) Cases involving multiple negligent actors
3. Proximate Cause (also known as Legal Cause)
a. The public policy behind the notion of proximate cause
b. Analysis to determine proximate cause based on the scope of the risk
(1) The legacy of Palsgraf v. Long Island Railroad Co.
c. Intervening causes
(1) When are intervening causes considered superseding?
(2) Common types of intervening causes
(a) Acts of nature
(b) Criminal and intentional conduct
(c) Negligent conduct
(d) Personal autonomy decisions
(e) Attempts to help or rescue
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C. “Limited duties of care” or limits to causes of action even if an injury is foreseeable
1. Social host liability
2. Is there a (limited) duty to help others?
3. Negligent infliction of (serious) emotional distress
a. Direct victim cases: Cause of action for emotional distress caused by
something that happens to the plaintiff
(1) The requirement of physical impact
(2) “Near miss cases” and the concept of the “zone of danger”
(3) Claims for emotional distress based on certain “particular
relationships or activities”
b. Bystander cases: Cause of action for emotional distress caused by
something that happens to someone else
(1) The zone of danger approach
(2) The California approach (majority view)
4. Limits to causes of action imposed by statute
a. Wrongful death statutes
b. Survival statutes
D. Defenses in cases of negligence
1. Different categories of defenses
a. Distinction between defenses and arguments against the plaintiff’s
ability to support the prima facie case
b. Jurisdictional defenses and affirmative defenses
c. Complete defenses and partial defenses
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2. Defenses based on the passage of time
a. Statutes of limitations
b. Statutes of repose
3. Defenses based on an evaluation of the plaintiff’s conduct
a. Contributory negligence
b. Comparative negligence
(1) Effect of comparative negligence on issues related to
apportionment of liability
c. Assumption of the Risk
(1) Implied secondary assumption of the risk
(2) Implied primary assumption of the risk
(3) Express assumption of the risk
(4) Effect of the adoption of comparative negligence on the
continued use of assumption of the risk as a defense
4. Defenses based on the relationship between the parties
a. Spousal immunity
b. Parental immunity
(1) Immunity for step-parents in loco parentis
c. Governmental immunity
(1) Federal Torts Claims Act
(2) Municipalities’ limited duty
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IV. Causes of action for injuries absent evidence of fault: Strict Liability
A. What is strict liability and why do courts allow liability without proof of fault?
B. Injuries caused by abnormally dangerous activities
C. Injuries caused by animals
1. Under what circumstances do courts recognize strict liability as a basis for
claims for injuries caused by animals
2. Injuries to property, or trespass cases
3. Injuries to people
a. Wild animals
b. Domesticated animals
V. Causes of action for injuries caused by the use of a product: Products Liability
A. The common elements to all products liability actions
B. Cause of action based on negligence
C. Causes of action based on strict liability
1. Cause of action based on breach of warranties
a. Express Warranty
b. Implied Warranties
(1) Implied warranty of fitness for a particular purpose
(2) Implied warranty of merchantability
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2. Cause of action based on strict liability in tort
a. The origin of the cause of action for strict liability in tort
b. Restatement (Second) of Torts §402A
c. Restatement (Third) of Torts: Products Liability
d. Types of defects
(1) Manufacturing defects
(2) Design defects
(3) Inadequate warnings
e. Cases involving prescription drugs
D. Defenses
1. Defenses based on the passage of time
2. Defenses based on an evaluation of the plaintiff’s conduct
a. Argument based on plaintiff’s misuse of the product
3. Preemption
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