Torts
Torts rewards a disciplined duty-breach-causation-damages walk-through and a clear-eyed view of which defense applies.
Negligence
- Duty: foreseeable plaintiffs (Cardozo). No general duty to rescue; landowners owe duties by entrant category, where a jurisdiction retains the categories.
- Breach: custom, statute (negligence per se), res ipsa loquitur (exclusive control, ordinarily no injury absent negligence, and plaintiff not contributorily negligent).
- Causation: actual cause (but-for or substantial factor) and proximate cause (foreseeability). Independent intervening acts, especially criminal ones, break the chain unless foreseeable.
- Defenses: contributory negligence (complete bar), comparative negligence (pure or modified), assumption of risk.
Strict liability, products, dignitary torts
- Abnormally dangerous activities and wild animals; products liability for manufacturing, design, and warning defects, with misuse, alteration, and assumption of risk as defenses.
- Defamation needs a defamatory statement of and concerning the plaintiff, publication, and fault; public plaintiffs must prove falsity and actual malice.
- Vicarious liability: within the scope of employment, with intentional torts sometimes deemed foreseeable.
Worked example
A delivery driver leaves the truck running during a delivery; a thief steals it and injures Pedestrian. The thief's intentional act is a superseding cause, so the driver is not liable absent special circumstances, such as leaving the keys where the risk of theft was known and foreseeable.
Traps
Finding a design defect without a risk-utility analysis; applying comparative negligence to intentional torts; proving only actual cause where proximate cause is contested; assuming a landowner owes an invitee the same duty owed a trespasser.