Torts Outlining Information

1. Big Picture Information

a. What tort law is/does?
i. Compensation for a loss – let the loss lie where it fell vs. shift the loss to the
causer. – essentially
b. Why it does it?
i. Corrective justice
ii. Deterrence – both the defendant and society.
iii. Loss distribution – who is better able to pay.
iv. Punishment – punish the careless / negligent
c. How it does it? When does a person pay
i. Negligent tort
ii. Intentional tort
iii. Strict liability tort
2. Negligent Torts
a. Elements
i. Duty
ii. Breach
iii. Causation
iv. Damages
b. Duty
i. Who owes a duty to whom?
1. Everyone owes a duty to others to avoid accidents.
2. Except: rescuing strangers; matters of certain public policy (Creasy)
ii. What level of duty?
1. Reasonable Person Standard – what a reasonable person would do
under the same circumstances.
a. Acting if his own interests were at stake
b. Hand Formula (B<PL)
2. Except: child standard; exceptional person; physical disability.
a. Except when child is engaged in adult activity.
3. No exceptions: mental disabilities; voluntary intoxication
c. Breach
i. Failure to satisfy the applicable duty to another.
1. Who, What, When, Where, How – explain what happened to show a
breach – comparing what a reasonable person is expected to do vs. the
defendant’s actions
2. Negligence Per Se – violation of a statute without an excuse
a. Potential excuses to the statute.
b. When the doctrine even applies.
3. Custom – relevant, but not binding
 4. Res Ipsa Loquitur – circumstantial evidence
a. Can’t be used in conjunction with concrete proving of
negligence (Dover)
b. Functions: burden shifting to defendant; avoids dismissal of the
case; special jury instruction.
c. 4 elements: Probability; control; contributory negligence;
unequal access
i. Policy argument regarding the necessity of the doctrine.
d.