Torts Mnemonics & Memory Aids

The four elements a plaintiff must prove to establish a prima facie case of negligence. All four must be satisfied.

• Duty — defendant owed a duty of reasonable care to the plaintiff
• Breach — defendant's conduct fell below the applicable standard of care
• Proximate cause — the breach was a legally foreseeable cause of the harm (Palsgraf)
• Causation (actual) — but-for the defendant's conduct, the injury would not have occurred

Judge Learned Hand's formula from United States v. Carroll Towing Co. If the burden of precaution is less than the probability of harm times the magnitude of the loss, failure to take that precaution is a breach.

• B — Burden of taking adequate precautions
• P — Probability that the harm will occur
• L — gravity of the resulting Loss (injury)
• Breach exists when B < P x L (it was cheaper to prevent than to risk the harm)

The seven traditional intentional torts against persons and property. Each requires intent (purpose or knowledge to a substantial certainty).

• Battery — harmful or offensive contact with plaintiff's person
• Assault — reasonable apprehension of imminent harmful or offensive contact
• False imprisonment — confinement within bounded area with no reasonable means of escape
• IIED (intentional infliction of emotional distress) — extreme and outrageous conduct causing severe emotional distress
• Trespass to land — intentional physical invasion of another's land
• Trespass to chattels — intentional interference with plaintiff's right to possess personal property
• Conversion — intentional exercise of dominion or control over plaintiff's personal property so serious it warrants full value

Defenses available to a defendant sued for an intentional tort. Note that insanity is generally NOT a defense to intentional torts.

• Self-defense — reasonable force to protect oneself from imminent harm
• Insanity — NOT a defense to intentional torts (McGuire v. Almy)
• Recapture of chattels — reasonable force to recover personal property after hot pursuit
• Emergency — necessity defense in emergency situations
• Necessity — public necessity (complete defense) or private necessity (must pay for actual damages, Ploof v. Putnam/Vincent v. Lake Erie)

The elements a plaintiff must prove in a defamation action. Public figure plaintiffs must additionally prove actual malice.

• False statement — the statement must be false (truth is an absolute defense)
• Language that is defamatory — tends to harm reputation in the community
• Identified — the statement is of and concerning the plaintiff
• Publication — communication to at least one third party
• Damages — special damages required for slander (unless slander per se); libel presumed

Factors courts consider to determine if an activity is abnormally dangerous, triggering strict liability (Restatement Second of Torts Section 520).

• Degree of risk of harm
• Ability to eliminate the risk by exercising reasonable care (inability suggests strict liability)
• Not a matter of common usage in the community
• Gravity of potential harm — severity of the potential injury
• Extent to which the activity is inappropriate for the location
• Risk outweighs the value of the activity to the community

When a statute can substitute for the duty and breach elements of negligence, creating a negligence per se claim.

• Criminal or regulatory statute violated
• Legislature intended to prevent the type of harm that occurred
• Injury was the type the statute was designed to prevent
• Plaintiff is within the class of persons the statute was designed to protect
• Statute sets a specific standard of conduct (not a general duty of care)

An employer is vicariously liable for torts committed by an employee acting within the scope of employment.

• Servant (employee) relationship — not an independent contractor
• Conduct occurred during work hours or was work-related
• Ordinary duties — the act was of the kind the employee was hired to perform
• Purpose — the employee was acting, at least in part, to serve the employer's purpose
• Employer authorized or could have foreseen the type of conduct (frolic vs. detour analysis)

The four theories under which a plaintiff may recover in a products liability action.

• Strict liability — product was defective and unreasonably dangerous (manufacturing, design, or warning defect)
• Negligence — defendant failed to exercise reasonable care in manufacturing, designing, or warning
• Implied warranty — breach of implied warranty of merchantability or fitness for a particular purpose (UCC)
• Express Warranty — breach of an express warranty or representation about the product

The different comparative fault systems used across jurisdictions to allocate damages when the plaintiff is partially at fault.

• Pure comparative fault — plaintiff recovers even if 99% at fault (damages reduced by fault percentage)
• Under 50% modified — plaintiff recovers only if less at fault than defendant (not as great as)
• Modified 50% bar — plaintiff recovers only if fault is 50% or less (not greater than)
• Pure contributory negligence — any fault by plaintiff bars recovery entirely (minority rule, e.g., Virginia, Alabama)

When direct evidence of negligence is unavailable, res ipsa loquitur allows an inference of negligence from the circumstances.

• Result would not ordinarily occur without negligence
• Instrumentality was within defendant's exclusive control
• Contribution by plaintiff or third parties is sufficiently eliminated
• Evidence of the true explanation is more accessible to the defendant