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outlinedepot-torts - TORTS OUTLINE Intro and Background I...

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TORTS OUTLINE Intro and Background I. Tort Law A. Nonconsensual , civil wrong B. Violation of public duty , resulting in private loss C. Privately (not publicly) enforced D. The result is controlling but not determinate of a tort crime. → The result may be bad, but it might not result in a tort crime. II. Tort Theories A. Goals/Policies 1. Compensation 2. Deterrence 3. Punishment/Retribution 4. Loss Spreading NEGLIGENCE (EXAM: Write on first question. “To sustain a negligence claim, P must prove that 1) D owed him/her a duty, 2) D breached that duty, 3) D’s negligence was the factual and proximate cause of P’s injuries, and 4) P sustained legally recognized damages.”) I. Elements of Negligence: To recover for negligence, P (P’s burden of proof for all 4) must establish each of the following elements by a preponderance of the evidence (that is, by more than 50%) to establish a prima facie case. 1. Duty : Was there any responsibility owed to P by D? 2. Breached Standard of Care (Duty) : Determine standard of care and if there was a breach Causation (breach caused both in fact and at law) : Causal link between D’s negligence to P’s damages 3. Damages or Harm : Suffered some kind of damage/harm Usually, there has to be a concept of “reasonableness” to see if something is wrongful. Negligence falls somewhere in between intentional (high fault) tort and strict liability (no fault) tort. Preponderance of Evidence (for each and every one of the 4 elements above): A. more than 50% for each element B. You only need to convince the jury that it’s 50.1% likelihood to convince the jury for each element. C. All you have to do is convince jury that the evidence shows that it is more likely than the flipping of a coin for each element. II. Misfeasance (Proper Action done negligently) v. Nonfeasance (No action) A. Misfeasance is an affirmative behavior that creates unreasonable risk and imposes it on others i. Often consists of affirmative acts of misconduct, doing something a reasonable person would not do (ie. firing a gun in crowded room). Misfeasance can also be shown by a negligent omission—failing to do something that a reasonable person would do while engaged in other activity (ie. not paying attention while driving.) ii. Actor typically liable for affirmative acts that create unreasonable risk of harm. B. Nonfeasance is where the P’s harm is caused by D’s failure to intervene. i. Usually no duty to aid unless special relationship, undertaking + reliance or statute. III. Goals of tort in negligence 1. Deterrence for negligent behavior 2. Compensation for those who suffered from negligent behavior 3. Every act of negligence is an act of selfishness. It’s doing something that other people have given up their rights to do since it’s part of reasonableness.
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