Torts

• + - Lineal 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 mentally illness, developmental disabilty, and dementia can commit intentional torts.

      • + - Causation

        • Actual

          Proximate

          (Causation is considered in more depth under the heading of negligence, but the same concepts apply.)

          Often causation is not an issue in an intentional torts case for prima facie liability.

          But it can matter a lot for damages.

    • + - The torts (causes of action)
      • + - Battery
        • + - Statement
          • An intentional infliction of a harmful or offensive touching of a person  
        • + - Elements
          • Act
          • + - Intent
            • Can be intent to effect a battery
            • or intent to effect an assault
            • Remember that substantial certainty counts
          • + - Touching
            • Can be direct or indirect (e.g., setting something in motion, laying a trap)
            • Touching of a person includes anything connected to the person
          • + - Harmful or Offensive
            • Note it doesn't actually have to do harm
            • Judged by a reasonable-person standard
        • + - Issues
          • "Eggshell plaintiff" rule
      • + - Assault
        • + - Statement
          • An intentional creation of an immediate apprehension of a harmful or offensive touching
        • + - Elements
          • Act
          • + - Intent
            • Can be intent to effect an assault
            • or intent to effect a battery
          • + - Apprehension
            • Fear distinguished from apprehension
            • Apparent ability sufficient
            • + - Words alone are not sufficient
              • But words can negate the effect of conduct
          • Immediacy
      • + - False Imprisonment
        • + - Statement
          • The intentional confinement, experienced or harmful, of a person to a bounded area
        • + - Elements
          • + - Act
            • Or omission to act, where there is a duty to release
          • Intent
          • + - Confinement
            • + - Sufficient methods of confinement
              • Physical barriers
              • Physical force
              • Threats of force
              • Invalid assertion of legal authority
              • Detaining chattels, if unreasonable to leave without them
            • + - Insufficient methods of confinement
              • Moral pressure
              • Future threats
            • Duration of confinement is irrelevant
          • + - 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
          • + - Awareness or harm

            • If plaintiff is unharmed, but is aware of the confinement, this element is satisfied

              Likewise, if plaintiff is unaware of the confinement, but is harmed by the confinement, this element is satisfied

      • + - IIED / Outrage
        • + - Statement

          • The intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional distress
            

        • + - Elements
          • Act
          • + - Intent or recklessness
            • Note that recklessness counts as "intent" for outrage
          • + - Extreme and outrageous conduct
            • The standard here is high -- must be truly outrageous
          • + - Severe emotional distress

            • A few courts have said that it must be enough that plaintiff sought medical attention or had some physical manifestation, but that is not the majority rule

        • + - Issues

          • The "eggshell plaintiff" doctrine does not apply to allow unusually sensitive plaintiffs to recover for acts that would not cause severe emotional distress in persons generally

            However, if the defendant knows about the unusual sensitivity, a cause of action will lie

            This tort is variously known as "outrage," "intentional infliction of emotional distress," and "IIED."

      • + - Trespass to land
        • + - Statement
          • An intentional physical intrusion onto a person's real property
        • + - Elements
          • + - Intent

            • The only intent needed is the intent to do the act that results 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

            • Can be accomplished by person or object

              Can include entry onto the real property or failure to leave or remove something from the real property

              Can include acting on a particular aspect of the real property

              Does not include intangibles, e.g., vibrations or odor, but could include particulates, depending on the court

          • + - Real property
            • Surface
            • and things affixed to the surface
            • Subsurface
            • Airspace to a reasonable distance
      • + - Trespass to chattels
        • + - Statement
          • An intentional interference with plaintiff's right of possession in a chattel
        • + - Elements
          • Intent
          • + - 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
            • Not people
            • Not real property
            • + - 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

          • An intentional exercise of dominion or control over a chattel which so substantially interferes with the plaintiff's rights as to require defendant to be forced to purchase it

        • + - Elements
          • Act
          • Intent
          • Interference
          • Chattel
          • + - Substantiality
            • So substantial, the act warrants a forced purchase
        • + - Issues
          • + - Distinguishing conversion from trespass to chattels
            • + - Factors militating in favor of conversion
              • Length of time withheld
              • Amount and severity of damage
              • "Totaled"
            • + - Factors tending to negate conversion
              • Repairable damage
              • Temporary nature of deprivation
          • 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 do that or can choose to sue for trespass to chattels.

    • + - 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

  • + - Accident torts
    • + - Negligence
      • + - Elements
        • + - Duty
          • + - General duty
            • A general duty of care is owed to all foreseeable plaintiffs
          • + - Specific situations
            • + - Rescuers

              • A rescuer is a foreseeable plaintiff where the defendant negligently put the self or a third person in peril.  "Danger invites rescue."

          • + - No affirmative duty to act
            • + - Some exceptions
              • + - Assumption of duty by acting

                • Exception: good samaritan statutes exempting medical professionals from liability for ordinary, but not gross, negligence in voluntarily acting to help someone

              • + - Peril caused by negligence
                • Defendant has a duty to assist someone in peril because of the defendant's negligence
              • + - Special relationships
                • Parent to child
                • Caregiver to cared for person
                • + - In general, people hired to look out for another's welfare
                  • Security guard to person protected
                  • Lifeguard that is on duty to swimmers
                  • Etc.
              • + - Common carriers, innkeepers, shopkeepers
                • Those who solicit and gather the public for their own profit owe a duty to aid patrons
              • + - 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.

                  • Example: Looking in the rear-view mirror before backing up

                  Objective standard

                  Mental deficiencies not taken into account

                  Inexperience is not taken into account

                  Physical disabilities and limitations are taken into account

            • + - Specific standards
              • + - Children
                • That of a child of like age, education, intelligence, and experience
                • Children under four 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
              • + - Professionals
                • + - General practitioner

                  • The knowledge, skill, and custom of practice among practitioners in the local community or a similar community

                • + - Specialist
                  • The knowledge, skill, and custom of practice among members of the specialty across the nation
              • + - Bailment
                • + - Bailor
                  • + - Gratuitous bailment
                    • Must inform of known, dangerous defects in chattel
                  • + - Bailment for hire
                    • Must inform of known and reasonably discoverable defects in the chattel
                • + - Bailee
                  • + - Sole benefit of bailor
                    • Low standard
                  • + - Mutual benefit of bailor and bailee
                    • Ordinary care standard
                  • + - Sole benefit of bailee
                    • High standard of care
              • + - Owners/occupiers of land
                • + - Conditions
                  • + - Trespassers
                    • + - Undiscovered/unanticipated
                      • No duty
                    • + - Discovered/anticipated

                      • Duty to warn of or make safe concealed artificial conditions, known to the owner/occupier, involving risk of death or serious bodily injury

                  • + - Infant trespassers
                    • + - "Attractive nuisance" doctrine
                      • + - Duty to avoid foreseeable risk to children caused by artificial conditions, if:
                        • A dangerous artificial condition the owner/occupier does or should know about
                        • The owner/occupier knows or should know that children frequent the area
                        • The condition is dangerous to children
                        • Cost/benefit analysis: the expense of remedying condition is slight compared to magnitude of risk
                  • + - Licensees

                    • + - Persons who enter land with permission for their own benefit, rather than the benefit of the owner/occupier.  (Licensees include friends and contractors coming on to the premises to make sales or repairs.)
                      

                      • Duty to warn of or make safe any known, concealed dangerous condition (whether natural or artificial)

                        No duty to inspect

                  • + - Invitees

                    • + - Persons entering land with permission for the owner/occupier's business or as members of the public on land open to the public

                      • Same duty as to licensees, plus a duty to inspect and render safe concealed dangers
                • + - Activities
                  • + - Everybody
                    • Reasonable person standard of care
              • + - 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-risk

                  • The plaintiff is in the class of persons the statute was designed to protect
                  • The harm suffered is among the risks that the statute was designed to protect against
          • + - Generally
            • Issue for jury or trier of fact
          • + - Special case
            • + - Res ipsa loquitor
              • + - The very occurrence of an event may rebuttably establish negligence, if:
                • The accident is of the type that would not normally occur absent negligence
                • The instrumentalities of the accident were in defendant's sole control
        • + - Actual causation
          • + - Generally
            • "But for" test
            • + - tip
              • say "a cause," not "the cause"
          • + - Alternative ways to prove actual causation without meeting the but-for test
            • Joint causes ("twin fires" cases)
            • + - Summers v. Tice problem
              • + - Multiple defendants acted, but only one caused injury
                • Burden of proof shifts to defendants, each to negate his or her own negligence
            • Market-share liability
        • + - 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?

                The extent or severity of harm is always considered foreseeable ("eggshell plaintiff rule")

                Negligence of medical professionals is always considered foreseeable

            • + - 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
            • + - Can other things qualify?
              • Severe emotional distress (for NIED only) [filed under oblique torts]
              • + - Not mere economic damages, harm to reputation, or other oblique injuries

                • (But note that oblique injuries may create liability covered under the heading of oblique torts)

                  In some cases, courts allow negligence cases for mere economic damages -- when they do so is complicated

      • + - Affirmative defenses
        • + - 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
            • Encountering the risk in a truly voluntary way
          • + - Two forms
            • + - Express
              • Not valid for certain defendants, including common carriers
              • Not valid for gross negligence or willful acts
            • + - Implied
              • Based on the circumstances, plaintiff impliedly assumed the risk
        • + - Waiver, release, exculpatory contract

          • Idea that the defendant should be off the hook because of the plaintiff's agreement/intent ahead of time not to pursue a claim

            This is conceptually and doctrinally distinct from assumption of the risk, but courts often jumble them together

            May be cognizable under equity and/or contract law

    • + - 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
          • + - Trespassing livestock
            • does not include dogs and cats
            • must be a forseeable harm
            • land abutting a highway is excused
            • + - "fence in" vs. "fence out"
              • fence in is the default
          • + - Wild animals
            • "wild" means not domesticated
            • + - applies if kept/owned/possessed

              • there is not strict liability for animals that just happen to be on your property naturally, without your doing something to bring them there or retain them

            • on property: liability to licensees and invitees
            • off property: liability if escape
          • + - 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)

            • + - Factors (cited by some courts)

              • + - Degree of danger

                • Risk of harm
                • Magnitude of harm
                • Inevitability / inability to render safe

                Uncommonness of activity in area

                Cost benefit analysis; value of activity to community versus risk of harm created (Restatement, Posner)

            • + - Examples
              • Fireworks display/performance
              • Fireworks manufacturing
              • Anything nuclear/radioactive
              • Blasting
              • Oil drilling
              • Fumigation
              • Crop dusting
              • Transportation of hazardous materials (maybe)
          • + - 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 chain can be liable
            • Must be a good, not a service
            • + - Injury was 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
              • + - Kinds of defects
                • + - Manufacturing defect
                  • article departs from intended design in way that makes it unreasonably dangerous
                  • + - test
                    • + - Consumer expectations test

                      • the product is defective if it is more dangerous than an ordinary consumer would expect (e.g., knife)

                • + - Design defect
                  • the article, as designed, is unreasonably dangerous
                  • + - two alternative tests
                    • + - Consumer expectations test
                      • + - the design is defective if it is more dangerous than an ordinary consumer would expect
                        • e.g., knife
                    • + - Risk-utility test
                      • + - the design is defective if the risks of its design outweigh its utility
                        • basically cost-benefit
                        • juries can actually do this
                        • e.g., lawn-mower dead-man's switch
                • Warning defect
        • + - Actual causation
          • Same as for negligence, see above
        • + - Proximate causation
          • Same as for negligence, see above
        • + - Injury (damages)
          • Same as for negligence, see above
    • + - Non-tort legal regimes dealing with accidents
      • + - Health and safety regulation
        • ex-ante vs. ex-post
        • + - procedural law for making regulations
          • notice and comment
          • judicial review
        • agency enforcement
        • agency adjudication
      • + - Worker's compensation
        • + - The worker's compensation trade-off
          • sheilds employers from large compensatory and punitive damages awards
          • makes it easier for employees to get money after an accident
        • + - Comparison with negligence
          • negligence not required
          • + - tort doctrines of causation are not used
            • WC concept: "in the course of and arising out of employment"
        • + - Elements
          • + - Personal injury
            • usually must have a physical component
          • Resulting from an accident
          • + - That occurs in the course of employment
            • + - recreational activities
              • covered if the employee is expected to participate
            • + - commuting
              • generally not covered
              • exceptions for necessary passages, special hazards near work, and returning to work
          • + - And arises out of employment
            • Occupational risks - always compensable
            • Personal risks - never compensable
            • Risks in neither category - sometimes compensable
        • + - Benefits
          • Medical and rehabilitation care
          • + - Cash payments
            • + - Temporary partial disability
              • A fraction of lost wages to corresond to reduced earnings caused by injury
            • + - Temporary total disability
              • Some percentage of wages during time unable to work
            • + - Permanent partial disability
              • + - scheduled (some states)
                • + - In Missouri:
                  • loss of arm at shoulder - 232 weeks of compensation
                  • loss of arm at elbow joint - 210 weeks
                  • loss of arm between shoulder and elbow - 222 weeks
                  • loss of toe, other than big toe, at distal joint - 8 weeks
                  • complete loss of sight in one eye - 140 weeks
              • unscheduled (other states)
            • + - Permanent total disability
              • based on lost earnings capacity
            • + - Death
              • + - varies
                • + - In Missouri:
                  • no limit generally, but no more than $5,000 for burial
      • + - Insurance
        • + - Why?
          • allows risk spreading
        • + - Consider incentives
          • insured has incentive to be safe to keep premiums low
          • insured has incentive to wait to buy insurance until it's more likely to be used
          • insurer has incentive to help insured be safe
          • insurer has incentive to sell policy
          • insurer has incentive to deny claims
        • + - Regulation
          • subject to state regulation
        • + - Pitfall
          • obligation to provide insurance is not the same as insurance
• + - Oblique torts
  • + - Negligence claims for economic loss
    • + - Parasitic economic loss
      • + - Economic loss that flows from personal injury or property damage is recoverable.
        • See discussion under lineal torts ...
    • + - Pure economic loss
      • General rule: not allowed
      • Attorney and accountant malpractice
  • + - Transactional torts
    • + - Intentional economic interference
      • Intentional interference with contract
      • Intentional interference with prospective economic advantage
    • + - Fraud
      • + - Elements
        • Material misrepresentation
        • Scienter
        • Intent to induce reliance
        • Actual reliance
        • Justifiable reliance
        • Damages
    • + - Breach of fiduciary duty
      • + - Elements
        • + - Existence of fiduciary duty
          • + - Examples
            • Trustee to beneficiary
            • Attorney to client
            • Partners in a partnership to each other
            • Parties to a joint venture to each other
            • Officers and directors to their organization
        • Breach
    • Tortious breach of the covenant of good faith and fair dealing
    • + - Breach of confidence
      • Useful in California for suing producers over pitches
  • + - Defamation
    • + - Elements
      • + - defamatory statement
        • reputation harming
      • regarding a matter of fact
      • of and concerning the plaintiff
      • published by the defendant
      • + - plus an extra condition
        • libel per se
        • + - 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
        • Neutral reportage
      • Absolute privileges
    • + - Other issues
      • Trade libel is a type of defamation
      • Constitutional issues - First Amendment
    • + - tip
      • + - Look at the Defamation Flowchart for a more complete explanation ...
        • http://www.ericejohnson.com/m/Defamation_Flowchart.pdf
  • + - Invasion of privacy and right of publicity
    • + - 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
        • Judicial fudging
    • + - tip
      • These torts tend to come up in the same fact patterns as defamation and outrage ...
  • + - NIED
    • "Negligently Inflicted Emotional Distress"
    • Note: This is a completely different tort action from IIED.
    • + - Can apply to bystanders, near-misses, and special situations
      • Has allowed recovery in favor of parents who watched a child die in an accident
      • Has allowed recovery for fear of cancer developing in the future
  • + - Other oblique torts
    • Malicious procescution
    • Malicious institution of civil proceedings
    • Abuse of process
    • + - Family torts

      • These are largely historical, and the trend among courts is to abolish them. They are often criticized as sexist, anachronistic, and treating human relationships as property relations. Yet versions of these torts live on in some jurisdictions.

        + - Criminal conversation

        • Used as a cause of action against a third party for sexual intercourse with one's spouse

        + - Alienation of affections

        • Use as a cause of action against wrongful conduct by a third party that causes loss of consortium with one's spouse

        + - Seduction

        • Originally used as a cause of action for fathers to sue for the loss of a daughter's services when the daughter becomes pregnant. Courts later allowed women to sue in their own name.

    • False advertising
    • Unfair business practices
    • Trademark infringement
    • Nuisance
    • Civil RICO
• + - Other 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
          • General
        • Duty to mitigate
        • + - 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.”

        • + - Constitution
          • Due process limitation on awards
      • + - Additur and remittitur
        • a way for courts to reduce or increase jury verdicts
    • Attorneys fees and taxation of damages
    • + - Remedies beyond damages
      • + - Restitutionary remedies
        • Legal or equitable
        • Comes from a theory of unjust enrichment
        • Transfer defendant's wrongful gain to plaintiff
        • + - Kinds
          • + - Replevin
            • At law
            • Remedy for torts to chattels
            • Pre-trial seizure of wrongfully retained or taken chattel
          • + - Trover
            • At law
            • Remedy for torts to chattels
            • Like replevin, but only to recover value of lost property, not the lost property itself
          • + - Ejectment
            • At law
            • Remedy for trespass to land
            • Evict the defendant
            • Also regaining real property from which the plaintiff was evicted
          • + - Constructive trust
            • In equity
            • Remedy for fraud, conversion, embezzlement, misappropriation of funds ...
            • A trust is created for plaintiff over property held by defendant
            • Must be traceable
            • In some jurisdictions, must show that legal remedies are inadequate
            • + - Advantages
              • Security interest (secured creditor)
              • Plaintiff can capture increase in value
          • + - Equitable lien
            • In equity
            • Remedy for fraud, conversion, embezzlement, misappropriation of funds ...
            • A lien is imposed on defendant's property to secure payment of money
            • Must be traceable
            • In some jurisdictions, must show that legal remedies are inadequate
            • + - Comparisons w/ constructive trust
              • Security interest (same)
              • Plaintiff cannot capture increase in value beyond amont of original claim
      • + - Injunction
        • In equity
        • Mandatory or prohibitory
        • + - Requires inadequacy of legal remedy
          • + - Examples
            • Irreparable injury
            • Continuous or repeated wrong
        • Court must balance the hardships
        • + - Kinds of injunctions by temporal nature
          • + - TRO - temporary restraining order
            • Can be gotten ex parte
            • Lasts only for a very short time (e.g., 10 days; until a PI hearing can be schedule)
          • + - Preliminary injunction
            • Must be properly noticed; never ex parte
            • Lasts until final judgment entered (could be years)
          • Permanent injunction
      • + - Defenses to equitable remedies
        • + - Laches
          • The plaintiff has waited too long
          • Often determined in reference to the statute of limitations
        • + - Equitable estoppel
          • The defendant has changed position in reliance
        • + - Unclean hands

          • The plaintiff has been behaving badly, and thus is in no position to demand a remedy as a matter of "fairness" from defendant

    • + - Multiple tortfeasors
      • + - Vicarious liability
        • Respondeat superior
        • Acting in concert
      • + - Joint and several liability

        • Traditional approach: Entirely plaintiff's choice whom to sue and from whom to collect judgment, in any combination or distribution

          Modified by statute in defendant-friendly ways in many jurisictions  (tort reform)

      • + - Contribution
        • Get partially reimbursed by fellow blameworthy parties
        • Can be used after settlement
      • + - Indemnification
        • + - Get reimbursed for all liability
          • + - Doctrinal indemnification
            • Variously called "legal indemnification" and "equitable indemnification"
            • Part of background law
          • + - Contractual indemnification

            • Arises by contractual agreement

              KEY POINT: Third parties' rights cannot be extinguished by an indemnification agreement between two unrelated parties

    • 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
      • + - Loss of consortium
        • Close family members bring action based on injury inflicted on loved one
    • + - 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 20, 2019. This version copyright 2019 Eric E. Johnson. Konomark. Most rights sharable. If you would like to modify this document for your own use in studying, go ahead. If you'd like to redistribute this document or modify it for teaching 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. (In the case of for-profit publishers and large educational services corporations, however, I would likely ask for a licensing fee.)