Torts

• + - Personal/property torts
  • + - Intentional torts
    • + - Generally
      • + - Act
        • Volitional movement
        • Not reflex
      • + - Intent
        • The conception of intent differs from tort to tort under the heading of "intentional torts"
        • Substantial certainty counts as intent
        • + - Transferred intent
          • Person to person
          • + - Tort to tort
            • Traditional view: Intent can transfer among any of battery, assault, false imprisonment, trespass to land, and trespass to chattels.
            • Today, many courts restrict transferred intent to only between battery and assault.
        • + - Motive is irrelevant, and is distinguished from intent.
          • (Note that whether evidence of motive can be used at trial to establish intent or another element is a question for evidence law.)
      • + - No issue of incompetence
        • Children as well as persons with mental illness, developmental disability, and dementia can commit intentional torts.
      • + - Causation
        • Often causation is not an issue in an intentional torts case for prima facie liability.
        • But causation can matter a lot for the extent of damages recoverable.
        • (Causation is considered in more depth under the heading of negligence, but the same concepts apply.)
    • + - The torts (causes of action)
      • + - Battery
        • + - Statement
          • The defendant undertook an act with the intent to and effecting a harmful or offensive touching of the plaintiff.
        • + - Elements
          • + - Act
            • The defendant undertook an act, made some volitional motion (as opposed to a reflex, for instance).
          • + - Intent
            • The required intent is the intent to effect a battery.
            • Remember that substantial certainty counts as intent.
            • Transferred intent can apply. From person-to-person works everywhere. For tort-to-tort transferred intent, courts differ. Intent to commit an assault works in all courts for battery. Some courts also allow transferred intent from false imprisonment, trespass to land, and trespass to chattels.
          • + - Harmful or offensive
            • "Harmful or offensive" is really a slogan for a more nuanced concept.
            • Note the touching doesn't actually have to do harm or be offensive.
            • The core notion is that people must respect others' apparent desire to not be touched.
            • In dealings with strangers, what a reasonable person would glean and community standards play a role.
            • E.g., tapping a stranger on the shoulder is okay — but not after the stranger says not to touch their shoulders.
          • + - Touching
            • Can be direct or indirect (e.g., setting something in motion, laying a trap)
            • Touching of a person includes things intimately connected to the person. E.g., beating on the car that the plaintiff is in, grabbing an object the plaintiff is holding.
      • + - Assault
        • + - Statement
          • The defendant undertook an act with intent effecting the immediate apprehension of a harmful or offensive touching of a person
        • + - Elements
          • + - Act
            • see battery
          • + - Intent
            • Generally, the intent required is the intent to effect an assault.
            • Through transferred intent. intent to effect a battery suffices.
          • + - Immediate apprehension
            • + - Fear distinguished from apprehension
              • It is not necessary to be in fear of the touching -- just apprehending that it is about to occur.
            • + - Apparent ability sufficient
              • So even if the defendant lacks the means to carry through the apprehended touching, it is enough that the plaintiff would think the capacity for the touch is there (e.g., pointing an unloaded or inert gun at someone).
            • + - Words alone are not sufficient
              • There has to be some movement, some act.
              • Note, however, that there is authority for the idea that words can negate the implications of movement/action (e.g., "This gun isn't loaded, but if it were ... ").
            • + - Immediacy
              • Has to be right at that moment.
          • + - Of a harmful or offensive
            • see battery
          • + - Touching
            • see battery
      • + - False imprisonment
        • + - Statement
          • The defendant intentionally confined the plaintiff and the plaintiff had awareness of the confinement.
        • + - Elements
          • + - Intent
            • The required intent is the intent to confine.
            • There is no requirement that there is an intent that the confinement is of a type that is illegal or improper. It just has to be intent to confine.
          • + - Confinement
            • Confinement means being restricted to a closed, bounded area of an appreciable amount of time.
            • + - Bounded area
              • Movement must be limited in all directions
              • Any reasonable and reasonably knowable means of escape negates this element
              • The bounded area cannot be the rest of the world
            • Duration of confinement is irrelevant. There is no minimum time that the plaintiff must be confined.
            • + - Method of confinement
              • + - Sufficient methods of confinement
                • Physical barriers
                • Force or imminent threat of force
                • Detaining chattels, if unreasonable to leave without them
                • Improper assertion of legal authority
              • + - Act vs. omission (failure to release)
                • Prototypically, the confinement is effectuated by an act of the defendant.
                • But it could be an omission to act where there is a duty to release.
          • + - Awareness (or harm)
            • The plaintiff only needs to be aware of the confinement; there's no requirement of harm.
            • Likewise, if plaintiff is unaware of the confinement, but is harmed by the confinement, this element is satisfied.
      • + - IIED / Outrage
        • + - Names
          • This tort goes by the names of "intentional infliction of emotional distress," "IIED," and "outrage."
        • + - Statement
          • The defendant intentionally or recklessly inflicted, by extreme and outrageous conduct, severe emotional distress on the plaintiff.
        • + - Elements
          • + - Intent or recklessness
            • Note that recklessness counts as "intent" for outrage.
          • + - Extreme and outrageous conduct
            • + - The standard here is high -- must be truly outrageous
              • "Generally, the case is one in which a recitation of the facts to an average member of the community would lead him to exclaim, 'Outrageous.'" - Dean v. Ford Motor Credit (5th Cir. 1989).
            • + - Mere insults and demeaning conduct toward the plaintiff are generally not enough, but insulting conduct at the plaintiff can be enough for a claim ...
              • where there's a pattern of the conduct over a substantial period of time, particularly in some place where the plaintiff is compelled to keep coming back to, such as school or the place where they work.
              • where the plaintiff is a traveller and the defendant is a common carrier (airline, e.g.) or innkeeper (hotel operator, e.g.).
          • + - Severe emotional distress
            • Historically, courts used to say that the harm suffered had to be enough that plaintiff sought medical attention or had some physical manifestation, but that is not the majority rule today.
            • It is, at least, much more than merely being upset, or even really upset.
      • + - Trespass to land
        • + - Statement
          • The defendant intentionally effected a physical intrusion (entry or failure to leave) of real property.
        • + - Elements
          • + - Real property
            • Surface
            • + - and things affixed to the surface
              • e.g., buildings and fixtures
            • Subsurface
            • Airspace to a reasonable distance
          • + - Intent
            • The only intent needed is the intent to do the act that constitutes in the physical intrusion.
            • Not knowing that the land belongs to another person or honestly and reasonably believing one has permission to enter does not negate the intent element.
          • + - Intrusion
            • Mere entry suffices
            • Can be accomplished by person or object
            • Does not include intangibles, e.g., vibrations or odor, but could include particulates, depending on the court
            • Can be accomplished by inducing a third person to enter
            • + - Can include acting on a particular aspect of the real property
              • e.g., a party guest going into an off-limits area or acting on a fixture in an unauthorized way such as swinging from the chandelier
            • Can include failure to leave or failure to remove something from the real property
      • + - Trespass to chattels
        • + - Statement
          • The defendant has effected an intentional interference with plaintiff's right of possession in a chattel.
        • + - Elements
          • + - Intent
            • Intent to act upon the chattel is all that is necessary.
          • + - Interference
            • Just touching isn't enough
            • + - Any of these can count as interference:
              • Actual damage to the chattel
              • Actual dispossession of the chattel
              • Loss of use of the chattel for some appreciable amount of time
              • Harm to the plaintiff or to someone or something in whom the plaintiff has a legal interest
          • + - With right of posession
            • The plaintiff doesn't have to be the owner of the chattel, just the person rightfully possessing it
          • + - Chattel
            • + - Moveable property
              • (Tangible property is either realty or chattels.)
            • Not real property
            • Not people
            • + - Not intangible property
              • Unless reduced to a tangible form (e.g., negotiable bearer bond)
            • Animals count as chattels
        • + - Issues
          • + - Distinguish from conversion
            • (see notes below)
      • + - Conversion
        • + - Statement
          • The defendant has effected an intentional interference with a person's right of possession in a chattel in so substantial a manner as to warrant a forced purchase.
        • + - Elements
          • + - Intent
            • see trespass to chattels
          • + - Interference
            • + - same as for trespass to chattels ...
              • but then there has to also be the requisite substantiality (see below).
          • + - Chattel
            • see trespass to chattels
          • + - Substantiality
            • + - The interference with the chattel is so substantial ...
              • + - it warrants a forcing the defendant to purchase the chattel.
                • You can say that conversion is best explained and understood teleologically. (If that helps you; if it doesn't, don't worry about it.)
            • It's a matter of degree, there's no hard line.
            • + - Some indications or factors militating in favor of conversion:
              • Length of time withheld is great.
              • Amount and severity of damage is great.
              • + - It's "totaled."
                • i.e., the repair costs exceed the value
            • + - Comparing conversion and trespass to chattels
              • For conversion, what it really comes down to is whether the interference is so substantial it justifies conversion's special remedy of the forced purchase.
              • If the interference has the requisite substantiality for conversion, that doesn't mean that a claim for trespass to chattels does not work! (The plaintiff could sue on either claim, or sue on both and elect a remedy later.)
        • + - Issues
          • In the remedy for conversion, after paying damages, the defendant retains the converted property.
          • + - Plaintiff's choice
            • If the facts are appropriate for alleging conversion, then the plaintiff can choose to pursue that claim. But the plaintiff doesn't have to! If the plaintiff wants the chattel back, they always have the choice of pursing a trespass to chattels claim.
            • Often the core concept in conversion is referred to as a "forced sale." But "forced purchase" is more accurate. The defendant can't make the plaintiff sell the chattel.
    • + - Issues
      • "Eggshell plaintiff" rule
    • + - Defenses
      • + - Consent
        • Scope
        • Express, implied in fact, implied by law
      • + - Defense of self
        • A person is entitled to use reasonable force to prevent any reasonably believed threat of imminent battery or false imprisonment
      • + - Defense of others
        • Same as self defense, but in a majority of jurisdictions, a mistake in perceiving a threat, even if reasonable, will void the defense
      • + - Defense of property
        • In general, a person is entitled to use reasonable force to protect land and chattels
        • Note: This is a complex and contested area of the law. What might be privileged in one place might subject someone to tort and criminal liability in another.
      • + - Arrest
        • Police
        • + - Citizen
          • Privilege is much more limited than for police
      • + - Private necessity
        • + - A person is privileged to invade the property rights of another to avoid injury to person or property, but must pay compensatory damages
          • Note: Private necessity is recognized as a defense that applies only to the property torts: trespass to land, trespass to chattels, and conversion
      • + - Public necessity
        • + - Same as for private necessity, but where the community at large is threatened, no compensatory damages are owed.
          • Note: Public necessity is recognized as a defense that applies only to the property torts: trespass to land, trespass to chattels, and conversion
  • + - Intent-not-required torts
    • Negligence
      • Elements
        • + - Duty
          • + - General duty
            • A general duty of care is owed to all foreseeable plaintiffs
          • + - Whether a duty exists is generally an issue for the judge, not the jury
            • In other words, the issue of whether a duty exists becomes a vehicle for preventing a case from reaching a jury
          • + - No affirmative duty to act
            • + - Some exceptions
              • + - Defendant-created peril
                • Defendant has a duty to assist someone in peril because of the defendant's negligence
              • + - Special relationships
                • + - Common carriers, innkeepers, shopkeepers – to their passengers, guests, and customers
                  • Those who solicit and gather the public for their own profit owe a duty to aid patrons
                • People hired to provide assistance (e.g., bodyguard to rock star, lifeguard to pool patron)
              • + - Assumption of duty by acting
                • Exception: good samaritan statutes sometimes protect people (often limited to medical professionals, but sometimes applying to any well-meaning stranger) from liability for ordinary, but not gross, negligence in voluntarily acting to help someone
              • + - Obligation to control third persons SOMETIMES
                • Generally, there is no obligation to control third persons
                • There is an obligation to control a third person if one has the ability and authority to do so and knows the person is likely to do harm if uncontrolled
        • + - Breach of duty
          • + - Standard of care
            • General standard
              • Reasonable person
                • The reasonable person standard means the care that would be exercised by a reasonable person under the circumstances.
                • + - Objective standard
                  • I.e., it's not subjective. So it doesn't matter that the defendant thought they were being reasonably careful. What matters is whether they were being reasonably careful from an objective point of view.
                • Mental deficiencies not taken into account
                • Inexperience is not taken into account
                • Physical disabilities and limitations are taken into account
                • Superior skill, experience, and knowledge work to increase the standard of care for defendants with that superior skill, experience or knowledge
                • Custom is probabative, but not dispositive
            • Specific standards
              • + - Children
                • That of a child of like age, education, intelligence, and experience
                • Children four and under generally do not have the capacity to be negligent
                • + - Exception: children engaged in an adult activity
                  • The relevant adult standard of care for the activity
              • + - Bailment
                • Bailment is one person holding on to another person's chattel. (E.g., renting a car.)
                • Many courts recognize special rules depending on the relationship of bailor and bailee. (For whose benefit is the bailment? Is the bailment in exchange for money?)
              • + - Owners/occupiers of land
                • For conditions of the land, many courts recognize special rules that depend on the status of the plaintiff (trespasser, anticipated trespasser, child trespasser, licensee, invitee)
              • + - Physicians (and other professionals engaged in their profession)
                • The standard of care is the prevailing standard of practice
                  • In other words, the custom among professionals in that profession
                • Exception: The standard of care is ratcheted upward for defendant professionals with superior knowledge
              • + - Negligence per se
                • When applicable, the plaintiff can have a statute's specific standard replace the general negligence standard
                • + - Test: class-of-persons/class-of-risks
                  • The plaintiff is in the class of persons the statute was designed to protect, AND
                  • The harm suffered is among the risks that the statute was designed to protect against
          • + - Generally
            • + - Issue for jury or trier of fact
              • Cf. existence of duty being an issue for the court
          • + - Special case
            • + - Res ipsa loquitur
              • + - The very occurrence of an event may rebuttably establish negligence, if:
                • The accident is of the type that would not normally occur absent negligence, AND
                • The instrumentalities of the accident were in defendant's sole control
        • + - Actual causation
          • Generally
            • + - "But for" test
              • If the injury would not have happened but for the defendant's breach of the duty of due care, then the but-for test is satisfied, and the plaintiff prevails on the issue of actual causation.
              • + - Here's an alternative way of stating the test (potentially less confusing).
                • + - If we took an imaginary trip back in time, and if we removed the defendant's breach, would the injury have happened anyway?
                  • If the injury would have happened anyway, then the but-for test is not met, and the plaintiff has not proven actual causation that way.
            • + - tip
              • say "a cause," not "the cause"
              • + - That's because many causes may be actual causes of an injury!
                • E.g., a plaintiff could sue a driver for being drunk, a bartender for serving the driver, and a bar patron for lending the driver the car. All of them may be said to have breached their duty of care, and each one's breach could be said to be a but-for cause of the plaintiff's injuries.
          • + - Alternative ways to prove actual causation without meeting the but-for test
            • + - Multiple sufficient causes (doctrine from the "twin fires" cases)
              • Rule: When each of multiple discrete careless acts committed by different multiple actors would, by itself, have caused the injury that resulted from the confluence of those acts, each act is deemed an actual cause, even though neither satisfies the but-for test.
              • It's easier with an example: Ayesha starts a fire. Bill starts a fire. The fires merge and the merged fire burns down your house. Ayesha says she isn't a but-for cause, because your house would have burned down ANYWAY from Bill's ignition. Bill says the same. The doctrine allows you to win on actual causation against both even though neither is a but-for cause.
            • + - Summers v. Tice rule
              • Multiple defendants acted, breaching their duty of care, yet only one caused injury—and it's unclear that either's conduct was more likely than not a but-for cause.
              • Rule: In such a case, actual causation is rebuttably established against all defendants. The burden of proof shifts to defendants, each to negate his or her own negligence.
            • + - Market-share liability
              • Similar to Summers v. Tice, but liability is capped at a percentage of total damages corresponding to each defendant's market share.
        • + - Proximate causation
          • + - There are multiple tests ...
            • + - Foresseeability test
              • We ask, at the time of the breach,was it foreseeable that the plaintiff would suffer the injuries complained of?
                • If so, then proximate causation is satisifed.
                • Note: There are some complications and nuances about exactly what has to be foreseeable. But the extent or severity of harm is almost always considered foreseeable—even if it's really not (the "eggshell plaintiff rule").
              • Negligence of medical professionals is always considered foreseeable
                • In other words, if I drive through a red light and injure you, and then at the hospital you are made worse by negligent doctors (e.g., needless amputation), I'm on the hook for the additional damages. Which is to say, I can't get out of liability for the additional damages by saying it was not foreseeable that you'd receive negligent medical care.
            • + - Harm-within-the-risk test
              • We ask, is the harm suffered the kind of thing that made the activity risky?
        • + - Injury (Damages)
          • + - Sufficient kinds of injuries
            • Personal injury
              • Damage to a person's physical body
            • Property damage
              • physical damage to land or chattel
            • + - Can other things qualify?
              • Severe emotional distress—in very particular circumstances—can qualify as an injury via a doctrine called "negligent infliction of emotional distress."
              • In some cases, courts allow negligence cases for mere economic damages -- when they do so is complicated
      • + - Affirmative defenses
        • Based on plaintiff's negligence
          • + - Contributory negligence
            • The plaintiff's negligence contributed to the plaintiff's injury
            • Complete bar to recovery
            • Most jurisdictions have rejected contributory negligence in favor of comparative negligence
          • + - Comparative negligence
            • Pure comparative negligence
              • Plaintiff's award is reduced by percentage of fault
            • Partial comparative negligence
              • Plaintiff's award is contingent upon defendant meeting a certain threshold percentage of fault
              • Plaintiff's award is then reduced by percentage of fault
        • + - Assumption of risk
          • Requires
            • Knowing and appreciating the risk, including its severity and likelihood, AND
            • Encountering the risk in a truly voluntary way
          • Potential defendants are always trying to get their customers to sign things saying that the customer assumes all risk of injury. Sometimes these are valid, but often they are paper tigers.
        • + - Waiver; release; exculpatory contract
          • These are different legal theories for the idea that the defendant should be off the hook because of the plaintiff's agreement/intent ahead of time not to pursue a claim
          • These are conceptually and doctrinally distinct from assumption of the risk, but courts often jumble all these things together.
          • As with assumption of risk, these can be paper tigers.
    • + - Strict liability
      • Generally
        • Under special circumstances, liability may be imposed without a showing of negligence or other form of culpability
      • + - Elements
        • + - Absolute responsibility for safety
          • + - Wild animals
            • "Wild" means not domesticated
            • Applies to the keeping of or possessing of wild animals
          • Trespassing livestock
          • + - Domestic animals with known, vicious propensities
            • compare to regular negligence
          • + - Ultrahazardous / abnormally dangerous activities
            • Essence
              • it's a policy determination that the party undertaking the activity ought to bear the full cost of any harm that comes of it
              • "small triggers ... can release far larger forces" (Epstein)
            • + - Examples
              • Blasting
              • Oil drilling
              • Fumigation
              • Crop dusting
              • Fireworks display/performance/manufacturing
              • Explosives using/storing/manufacturing
              • Highly toxic chemicals using/storing/manufacturing
              • Anything nuclear/radioactive
          • + - Defective products
            • Defendant must be a "commercial supplier" of the product at issue
              • Manufacturers, wholesalers, and retailers are commercial suppliers
              • Not casual sellers
            • Everyone in the distribution chain can be liable
            • Must be a good, not a service
            • + - Injury must be to person or tangible property
              • not the product itself; does not work as a warranty on the product
              • does not cover purely monetary consequential damages flowing from failure to work right
            • The product must be defective
              • + - Compare defect element to negligence
                • In general, a defect is something that makes the product unreasonably dangerous. So, like negligence, it is built around notions of reasonability. But strict products liability has more or -- at least different -- specificity in the doctrine concerning how this determination is made.
              • Tests
                • Consumer-expectations test: Would a reasonable consumer expect the danger in the product that caused the injury?
                • Risk-utility test: Would making the product safer provide a benefit that would offset the increased price or loss of usefulness, taking into account the likelihood of injury?
              • + - Kinds of defects
                • Design defect
                  • The product is defective as designed. E.g., it might lack safety features for which the added safety outweighs the added cost or decreased usefulness of the product.. The consumer-expectations test or risk-utility test can be used to show the existence of a design defect.
                • Manufacturing defect
                  • Something went wrong in the manufacturing process that caused the particular unit of the product at issue to be defective. E.g., a bad weld on a tank, bacterial contamination in packaged food. The consumer-expectation test can be used to show the existence of a manufacturing defect.
                • Warning defect
                  • There was a danger with the product that was known or reasonably knowable, and the defendant didn't adequately warn of it. A test that can be used is whether a warning was reasonable uder the circumstances to avoid danger.
        • Actual causation
          • Same as for negligence, see above
        • Proximate causation
          • Same as for negligence, see above
        • Injury (damages)
          • Same as for negligence, see above
• + - Torts for oblique injuries (dignitary/economic)
  • + - Fraud
    • Elements
      • Material misrepresentation
      • Scienter
      • Intent to induce reliance
      • Actual reliance
      • Justifiable reliance
      • Damages
  • + - Defamation
    • + - Elements
      • + - defamatory statement
        • reputation harming
      • + - regarding a matter of fact
        • as opposed to opinion
      • + - of and concerning the plaintiff
        • for instannce, when a large group of people is identified in the defamatory statement, it may not be deemed of and concerning an individual member of the group
      • + - published by the defendant
        • "publication" is a term of art; it just means being heard or read by at least one other person, not including the plaintiff and defendant
      • + - plus an extra condition
        • + - libel per se
          • I.e., no external information is needed to understand defamatory import
        • + - libel per quod
          • (Use the same analysis as for slander per se.)
        • + - slander per se
          • + - must be in one of four categories
            • business or occupation
            • loathsome disease
            • guilt of crime of moral turpitude
            • lack of chastity
          • or prove special damages
    • + - Defenses
      • + - Substantial truth
        • But this can be an element of the prima facie case in some contexts, because of the First Amendment
      • + - Qualified privileges
        • + - Fair reporting privilege
          • The media is privileged to provide a fair and accurate report of defamatory statements made in the course of legislative, judicial, administrative and other official proceedings/records, if the proceedings or records are open to the public, and they relate to a matter of public concern
        • + - Neutral reportage
          • The media is privileged to provide a fair and accurate reporting of charges made by one public figure against another - for example things spouses say against one another in a celebrity divorce
      • + - Absolute privileges
        • There are, for example, absolute privileges for anything said in court pleadings or said aloud in court, and anything said by legislators on the floor of the legislature.
    • + - Other issues
      • So-called "trade libel" is a name for defamation against a company
      • + - Constitutional issues - First Amendment
        • Under many circumstances the First Amendment adds requirements and defenses to common-law defamation in a way that makes the law as a whole more protective of free speech.
        • These are complicated ...
    • + - tip
      • + - Look at the Defamation Flowchart for a more complete explanation ...
        • http://www.ericejohnson.com/m/Defamation_Flowchart.pdf
  • Intentional interference with prospective economic advantage
  • Intentional interference with contract
  • + - Privacy and publicity torts
    • + - Intrusion
      • E.g., peeping
    • + - False light
      • Like defamation, but need not be reputation harming
    • + - Disclosure
      • Disclosure of embarassing facts to the public
      • i.e., blabbing
    • + - Right of publicity
      • a/k/a "misappropriation"
      • Commercial use of another persons name, likeness, image, voice, etc.
      • + - Substantive scope limited by
        • First Amendment
        • Copyright preemption
        • Various ad hoc means
      • + - Successful cases usually involve
        • Endorsement/advertising
        • Merchandising
        • Or, more rarely, what you could call "virtual impressment"
    • + - tip
      • These torts tend to come up in the same fact patterns as defamation and IIED/outrage, so where you see one, you might look for the others as well.
  • + - Others
    • And just so you know, many more torts exist ... There's malicious prosecution, breach of fiduciary duty, tortious breach of the covenant of good faith and fair dealing -- just to name a few.
• + - Other essential issues
  • + - Standard of proof
    • Preponderance of evidence
    • For each element of cause of action or affirmative defense
  • + - Remedies
    • Legal vs. equitable remedies
    • + - Damages
      • + - Nominal
        • E.g., $1
      • + - Compensatory
        • + - Function
          • To make plaintiff whole
        • + - Kinds
          • + - Special or pecuniary
            • Example: Lost wages that can be specified in an exact sum of money.
          • + - General or nonpecuniary
            • Example: Pain and suffering, which isn't naturally quantifiable in exact dollars.
        • + - Collateral source rule
          • Damages are not reduced because plaintiff has collateral sources (insurance, charity)
      • + - Punitive
        • + - Function
          • To punish defendant
        • + - Common law
          • + - Special culpability required
            • Conduct must be wanton, willful, reckless or malicious
            • E.g., "flagrant misconduct," "malice," "in conscious disregard," "willful, wanton, or reckless," and "wantonly reckless or malicious."
      • + - Additur and remittitur
        • a way for judges to reduce or increase jury verdicts
    • Attorneys fees and taxation of damages
    • + - Remedies beyond damages
      • Injunctions, for example
    • + - Multiple tortfeasors
      • + - Vicarious liability
        • + - Respondeat superior
          • Most common application: Companies are liable for the torts of their employees acting in the scope of their employment.
          • This doesn't remove the employee tortfeasor from liability—it just adds the employer.
        • + - Acting in concert
          • Persons acting in concert are liable for each other's torts.
          • Aiding and encouraging another person to commit a tort makes the aider/encourager liable (in addition to the primary tortfeasor).
      • + - Joint and several liability
        • Default rule and traditional approach: Entirely plaintiff's choice whom to sue and from whom to collect judgment, in any combination or distribution
        • This has been modified by statute in defendant-friendly ways in many jurisictions (tort reform)
      • + - Contribution
        • Get partially reimbursed by fellow blameworthy parties
        • Can even be used after settlement to get a portion of the settlement reimbursed
      • + - Indemnification
        • + - Get reimbursed for all liability
          • + - Doctrinal indemnification
            • Variously called "legal indemnification" and "equitable indemnification"
            • This is part of background law and is generally available when it is fair for one party, who was realtively blameless but had to pay damages, to get reimbursed by person or company who was more blameworthy but wasn't made to pay
          • + - Contractual indemnification
            • Arises by contractual agreement
            • This isn't about fairness, it's about one party negotiating for it, often because of superior bargaining power
            • KEY POINT: One person's right to sue and recover damages cannot be extinguished by an indemnification agreement between two others!
    • Enforcing judgments
  • + - Special issues with parties and actions
    • + - Statutes of limitation and repose
      • + - Statutes of limitations
        • Hard deadline on filing lawsuits
        • Clock starts based on accrual of claim
      • + - Statutes of repose
        • Hard deadline on filing lawsuits
        • Clock starts based on defendant's action
    • + - Immunities and tort liability of the government
      • + - Immunities
        • Family/spousal
        • Charitable
        • Government (sovereign)
        • Diplomatic
        • Intergovernmental organizations
      • + - The firefighter rule
        • Functions as a reverse immunity, barring certain plaintiffs from negligence suits
        • Example: Firefighter injured in fire negligently set by homeowner cannot sue homeowner for injuries
      • + - Suits against sovereigns
        • + - Federal Tort Claims Act
          • Can sue governement under negligence
          • Use state's negligence law
          • Special procedures must be followed
          • Strict liability excluded
          • Intentional torts excluded
          • Discretionary-function exemption
        • States have statutory schemes partially waiving sovereign immunity and providing for suit similar to the FTCA
        • See also constitutional torts
    • + - Constitutional torts
      • + - Section 1983 actions
        • 42 U.S.C. § 1983
        • Against state or local officials (those acting under color of state law) for violations of constitutional rights
      • + - Bivens actions
        • Like a 1983 action against federal officers, but subject to more limitations
    • Implied rights of actions
    • + - Wrongful death, survival actions, and loss of consortium
      • + - Wrongful death
        • Survivors bring action based on loss of loved one
        • Not recognized in American common law
        • Action created by statute
      • + - Survival actions
        • Survivors bring action based on causes of action that accrued to deceased before death
        • Created by statue
      • + - Loss of consortium
        • A close family member of a living primary tort victim can bring this action based on the loss experienced by the family member. (Example: Spouse in persistent vegetative state -- although it need not be that extreme.)
    • + - Wrongful conception, birth, and life; unborn plaintiffs
      • + - Issues relating to pregnancy
        • + - Wrongful conception
          • brought by parents for failed contraception
        • + - Wrongful birth
          • brought by parents for unterminated pregnancy
        • + - Wrongful life
          • brought by child for unterminated pregnancy
        • Suits by an unborn plaintiff against the mother
• + - About this mindmap ...
  • Torts Mindmap. Revision date: August 30, 2023. Copyright 2023 Eric E. Johnson. ericejohnson.com
  • + - Warning: This mindmap oversimplifies!
    • Don't rely on this for real-world legal problems. Jurisdictions are different, and things are complicated. And for studying, think of it as a framework or staring point, not a thorough statement of the relevant doctrine.
  • + - Allowed uses for students ...
    • Whether you are my student or studying torts elsewhere, if you would like to modify this document for your own use in studying, go ahead. If you'd like to share your modified mindmap with others (such as giving it to friends or putting it in a student-group's outline bank), that's fine, but send me a copy after finals so that I can post it for others to build upon and modify provided they share it forward likewise.
  • + - Allowed uses for others ...
    • + - Allowed uses for instructors, lawyers, etc. ...
      • If you'd like to redistribute this document or modify it for teaching/training purposes, please contact me through ericejohnson.com. I like hearing from fellow teachers and lawyers and I'm almost always happy to give permission to re-use my materials on a gratis basis.
    • + - Allowed uses for companies, publishers, organizations, and others ...
      • For permissions, please contact me through ericejohnson.com. (Frequently I'm up for giving gratis permission. But in the case of for-profit publishers and large educational services corporations, however, I would likely ask for a licensing fee.)
  • + - More study resources and mindmap material ...
    • are available at http://ericejohnson.com/projects/torts_materials/
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    • And for subjects beyond torts, go to ericejohnson.com