Tort Final

Intro if need to get around waiver:

For [Plaintiff] to win a negligence suit against [Defendant], [Plaintiff] must first prove [If
something is hindering her]. Then, can [Plaintiff] prove [Defendant] negligently [ALLEGED
NEGLIGENCE] when [Issue Statement]?

First, can [Plaintiff] prove that her release of liability agreement is void? Express assumption of
the risk is only a valid defense against negligence actions if the release is clear, unambiguous,
and pertains to the exact nature of the theory of negligence brought. For example, a release of
liability clause that is hidden amongst other text might be void because it is unclear, and
unambiguous. Furthermore, if the release of liability does not pertain to the sustained injury,
the release might not have effect. For example, if a member of a gym had signed a release of
liability pertaining to injuries arising from engaging in sports and activities, but is injured when a
bench he is sitting on breaks, the release would not insulate the defendant from a negligence
action that alleges failure in maintaining the bench. In this case, the release of liability appears
to be clear and unambiguous because it is not stated as being amongst other text. Secondly,
the release of liability attempts to insulate the camp from any negligence claims arising from
the general stay at camp.

However, public policy may show that the expressed assumption of the risk (release of liability)
is void against public policy. First, if the court feels the general activity is one that is in the realm
of public regulation, the release of liability may not apply. Second, if the release of liability is
engaged in performing a service of great importance to the public, the release might not apply.
Third, If the party holds itself out as willing to perform this service for any member of the public
who seeks it or at least any member coming within certain established standards, public policy
may void the release of liability. Fourth, if one party uses its decisive advantage of bargaining
strength against the member who seeks the services (essentially a contract of adhesion), public
policy might void the release. Lastly, if the result of the release of liability puts the person under
control of the offeror, and the person would be subject to the risk of carelessness by the offeror
or his agents, then public policy may show the release of liability is void.
Issue
Did [Defendant] breach his duty of care when [ALLEGED NEGLIGENCE]?

Duty
Standard of Care
Standard of care refers to the level of conduct the law requires of an individual so as to avoid
negligence liability.

General Duty of Reasonable Care

Rule: An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct
creates risk of physical harm. The standard of care owed is what an individual is expected to
maintain to avoid liability for negligence.

Child Standard of Care:

Novel Duty: [Plaintiff] may be able to prove another way that she was owed a general duty of
reasonable care by [Defendant] because the jurisdiction wherein the case takes place uses a
multi-factor approach to novel duties. The factors in this approach include (1) the foreseeability
of harm to plaintiff, (2) the degree of certainty of harm, (3) the closeness and causation of the
negligence alleged with the harm, (4) if there is any moral blame attributed to the actions of the
defendant, (5) if there should be any public policy regarding the actions, (6) the cost/ burden
the general care would place on the defendant, (7) the consequences on the community, and
(8) the availability of insurance to cover against the specific type of harm.

Limited Duties:
1. Owners of Land:
2. Limited to Assist:
Special Relationship
Rule: Generally, when there is inaction on the part of the defendant, there is a “no-duty-to-
rescue” rule in place. This means that the inactive defendant does not owe a duty to assist or
protect others because the defendant did not act affirmatively to create the risk. However,
there are exceptions. Most pertinent to this case are the following exceptions: (1) a special
relationship to the victim and (2) prior conduct.
(1) when the defendant has a special relationship with the victim, a duty arises from the
defendant to use reasonable care to assist or protect that victim from harm. The
duty would rise to the general duty to exercise reasonable care. The standard would
then be to act as the reasonably prudent person would have in the same or similar
circumstances. Some examples of special relationship are: parent – child; teacher –
student; co-venturers; etc.
(2) When the defendant’s prior conduct may have created a risk, the defendant owes a
duty of reasonable care to assist the plaintiff.
3. Risks posed by 3rd persons:
4. Criminal conduct
Rule: Defendants have the duty to protect a foreseeable plaintiff if a specific harm is foreseeable. The
court uses 4 key factors to determine whether a specific crime and action was foreseeable: (1)
Foreseeability of specific harm, (2) Prior Similar Instances, (3) Totality of circumstances, (4) a balancing
test.

5. Public Policy Ments:

6. Type of Harm (Emotional):

Breach
1. Reasonable Person Standard
Rule: Once duty is established, the defendant owes a duty of reasonable care to avoid risk.
Specifically, the court will look to see if the defendant’s conduct fell below the conduct of the
reasonably prudent person in the same or similar circumstance. The court has recognized some
exceptions, such as emergency, sudden infliction on physical disability, child’s reasonable care.
However, the reasonable person is objective and is not based on the reasonably good judgment
of the specific defendant. The two largest factors in determining what the reasonably prudent
person would have done are (1) custom and (2) balancing the burden of the untaken precaution
against the probability of the harm occurring and the magnitude of the harm. Additionally, the
court may look to statutes to determine what the legislature has developed as an expectation
of the reasonably prudent person.

2. Balancing (B<PL)
Rule: If the burden of the untaken precaution is lower than the Probability of the harm
occurring multiplied by the Magnitude of Loss, then the act may be deemed negligent.
Conversely, the court may feel a burden is too high to place on individuals if it is higher than the
probability of harm multiplied by the magnitude of loss. The calculus does not depend on the
actual harm that occurred but depends on the reasonably foreseeable harm.

3. Statute:
4. Custom
Rule: Custom is a well defined, consistent way of performing a specific activity in a specific
industry. Custom may be introduced as evidence of what the reasonably prudent person would
have done in the same or similar circumstances, but is not determinative of whether the
defendant’s actions did, in fact, fall below the standard of care.

Causation
1. But for
The jurisdiction we are in uses the But-For test.
Rule: The but for test poses the question: Would the harm not have occurred but-for the
negligent act?
 2. Substantial Factor
Jennifer must show that the negligence was the substantial factor in bringing about her injuries.
Courts used to generally hold a “but for” test, however, the test has evolved to be more
inclusive by implementing the “substantial factor test.” The courts hold that if an act was a
substantial factor in causing the harm, there is a factually causal link between the breach of
negligence and the harm. Here,

Proximate cause
[Plaintiff] must show that [Defendant]actions were not cut off from causing her injuries by any
superseding intervening factors. Superseding intervening factors so egregious and
unforeseeable may insulate the defendant from liability. Here, the liability will

Damages
Here, the use of expert testimony may be needed to testify to the degree of damages suffered.
Specifically, because this is a negligence suit, the only damages available would be compensatory
damages sustained by medical bills past and future, loss of income (past and future), and any necessary
adjustments. Unless the conduct is deemed reckless by the court, courts typically do not award punitive
damages (used primarily to punish or make an example out of an individual).

Defenses
The only viable defenses against negligence are comparative fault and assumption of the risk.
Modifed 49
Comparative fault in this jurisdiction is managed by the ‘modified 49 rule.’ This would show that
the plaintiff may receive damages even if they are comparatively at fault, unless the jury finds
the plaintiff is more than 49% at fault. For example, if [Plaintiff] was 50% at fault, she would
not be able to recover.
Battery Rule Statement
Rule: A defendant is liable for battery when the defendant’s intentionally makes contacts with
the victim in a harmful or offensive way against the victim’s consent. Intent can be satisfied by
either (1) a desire to cause the harmful or offensive touching or (2) the defendant was
substantially certain that the contact would be harmful or offensive. Furthermore, the
defendant’s conduct must be voluntary to count as battery (cannot be an accident, not of the
defendant’s own making). There need not be knowledge of the specific harm that happened to
the victim, just a substantial certainty that there might be a type of harm.

IIED
The factors for IIED include extreme and outrageous conduct. Extreme and outrageous conduct
has been defined in the restatement as conduct that would be utterly intolerable by the
average person in society, to the point that at the sight of such action or hearing such words,
the average person would gasp, “outrageous.” The threshold of intent may be desire,
substantial certainty, or recklessness. Finally, there needs to be actual damages (they do not
have to be physically exhibited).

Consent defense RS
Rule: A defendant that alleges the defense of consent has the burden to prove the victim
consented to the intentional tort. Additionally, the defendant may show that the consent was
express, implied, or implied by