TORTS LAW OUTLINE

General:

· traditional goal of tort law has been to restore the plaintiff to her condition prior to harm through compensation.

· tort law unlike contract is imposed on parties rather than coming from the parties. Tort law helps to define the duty.

· rationale for tort law: 1) deterrence 2) spread the risks 3) internalize costs

· 3 bases for torts: 1) negligence - creation of unreasonable risk; 2) intentional torts; 3) strict liability

I. INTENTIONAL TORTS

3 ways INTENT may be satisfied: 1) purpose 2) knowledge to a substantial certainty - (minor's age may affect ability to understand); Garrett v. Dailey

3) transferred intent (ricocheted bullet injures another) - applies to battery, assault, false imprisonment, trespass.

Difference between intentional and negligent torts: 1) punitive damages (intentional or reckless); 2) not allow comparative/contributory negligence (as a defense); 3) statutes of limitations; 4) discharge in bankruptcy; 5) insurance exclusions; 6) exclusive remedy - workman's compensation (may have to prove tort to collect); 7) exculpatory agreements.

A. BATTERY - the intentional causing of harmful or offensive contact with another person; "impermissible contact."

Elements: 1) volitional act; 2) intent; 3) causes; 4) contact; 5) impermissible - society-based (before the fact); 6) harmful or offensive; 7) nonconsensual

1. No consent + offensive bodily contact (obc) = tort (vaccinating a child) - need guardian's consent or it is unlawful act.

2. Need not contact victim's flesh (prohibition against touching clothes, striking cane, slapping horse on which he is riding, spitting on someone)

3. Battery requires action (blocking a doorway = no battery)

4. May be indirect (pouring something on a person's towel, sicking dog on someone)

5. Hostile intent is not necessary (kissing a woman without her consent)

6. Greeting-pat on a friend's back or a polite attention-attracting touch on a stranger's arm is no battery.

7. Reckless battery - depends on the situation (example: sports)

8. Consent may be assumed in some circumstances (play football, ride crowded bus)

9. Insanity is not a proper defense to battery, because the law imposes the loss on the insane person rather than the victim.

10. Reasonable person test on determining o.b.c.

11. Nominal harm sufficient.

12. Mistaken identity + obc = battery

13. Knowledge of sensitivity matters, i.e., more liable if you know the person is particularly sensitive to a certain bodily contact.

a. Transferred intent applies - an agressor who wrongfully strikes at one person and hits another is liable to that other.

b. Need not be aware of contact when offense occurs

c. Direct contact is not necessary - only needs to be intimate to a person

d. Garrett v. Dailey - boy pulls chair away, lady goes to sit down, falls to the ground and sustains hip injury. Ct must consider intent as "know. to a substantial certainty"

B. ASSAULT - an intentional act which arouses a reasonable apprehension of imminent battery in P.

1. Aiming a blow at someone, advancing on a person and threatening a beating, menacingly pointing a gun at someone.

2. Apprehension of contact is required; P need not experience fear.

3. No future threat is an assault unless immediate harm and ability of actor to carry out that harm exists. R ? 29. (No assault committed by phone call, because speaker cannot carry out the threat)

4. Conditional Assault: assault exists if on conditional terms (your money or your life)

5. Apparent Ability is deciding factor (pointing unloaded gun at people who believe it is loaded is an assault).

6. Belief of apprehension matters ("lookout for that rattlesnake!" while in desert when knowingly false statement causing immediate apprehension = assault).

7. Does not include apprehension of assault to a third person.

8. P must believe it is time for fight or flight.

a. Transferred intent applies.

b. Must be aware of assault at time it takes place.

c. Generally, words are not enough. See #6.

C. FALSE IMPRISONMENT - occurs when D intentionally confines P directly or indirectly to boundaries outlined by D, without privilege to do so. P must be aware of confinement or harmed by it. Key actionable result: "Nonconsensual restraint"

1. Can also be where one is compelled to go where he does not wish to go.

2. Majority of courts say the person must be conscious or aware of confinement. If physically harmed, then awareness is immaterial.

3. Restraint through property (take purse to make lady come with you)

4. Confinement achieved by (1) actual or apparent physical barriers, (2) overpowering physical force, (3) threats of force, (4) other duress (employer-employee), (5) asserted legal authority.

5. Relationship important: more likely with employer than parents reprimanding a child.

6. False Arrest - when D in good faith detains a suspected shoplifter, courts tend to deny liability. (reasonable time to investigate). Must have reasonable cause for no false arrest. Some species of malicious prosecution fit here.

7. Transferred intent applies - mistaken identity is no excuse.

8. Reasonable or safe avenue for exit = no false imprisonment.

D. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS - 1. the wrongdoer's conduct was intentional or reckless, 2. the conduct was outrageous (limits on bad manners and mere hurt feelings); 3. causal connection between the wrongdoer's conduct and the emotional distress; 4. the emotional distress was severe.

1. You can recover even without physical injury State Rubish Collectors v. Siliznoff.

2. D's conduct must be extreme and outrageous, not merely insulting or offensive. Requires more than words.

3. Liable if injured party known to be especially vulnerable or susceptible to emotional distress, even though same conduct would not be considered outrageous if directed toward any ordinary person (young children, pregnant women, mentally/physically impaired)

4. Public figure more difficult to collect Hustler v. Falwell "breathing space for 1st Amendment"

5. Transferred intent does not apply except in case where immediate family involved (beat up girl's father knowing she is watching)

6. Provides no clear definition of prohibited acts - different from other torts.

E. TRESPASS. D subject to liability for trespass if he intentionally (1) enters upon land or causes some thing or third person to do so; (2) remains on the land after his privilege has expired; (3) fails to remove a thing from the land which he had a duty to remove. Elements: intentional, volitional, entry, without consent.

1. If unintended intrusion, no liability unless actual harm.

2. Mistake is not a defense to this tort.

3. Can be deposit of chemical substance/residue on another's land.

4. actual damage is not an essential ingredient; retains strict liability

5. Interferes with owner's exclusive possessory rights, as distinguished from use and enjoyment of property (nuisance).

6. Intent here refers to intent to enter land, not necessarily to invade another's interest in exclusive possession of land.

7. Tort of trespass to chattels requires injury to chattel.

8. Liable for damage to property whether foreseeable or not.

9. Includes air above and ground below land.

F. CONVERSION -- Intentional inferference with P's possession or ownership of property that is so substantial that D must pay property's full value.

1. Requires serious dispossession and at least nominal damages.

2. Dominion must be exercised over property

3. Distinguished from trespass to chattels - damages measured by dimunition in value caused by interference, not the full value of property. Tort of trespass to chattels requires an injury to chattel.

4. Documents copied at night and then returned to files are not converted. (assuming not stealing business plans, scientific discoveries, literary property)

5. Buying stolen goods is conversion, unless willing to give back those goods.

6. Buying goods obtained by fraud is no conversion (if purchased in good faith at fair value).

7. Mistake (with good faith - take someone else's hat, find out, promptly return it) - no conversion.

8. Damage calculated as fair market value of goods at time of conversion + interest.

9. Duration is a factor to determine if converted, e.g., borrowing TV Guide for 5 minutes vs. borrowing for one week (after a week it is useless).

10. Plaintiff's inconvenience and expense is a factor to determine if converted.

II. DEFENSES TO INTENTIONAL TORTS

Privilege - negates the tortious character of D's conduct. Other defenses reduce the amount of damages but do not negate the tort. Privileges are an affirmative defense: burden of proof on D. (Exception: intentional torts against P's person (assault, battery, false imprisonment) then absence of consent is an element of a prima facie case. Volenti non fit injuria (one who consents is not injured)

2. Mistaken belief about privilege, no defense. But certain privileges are based on reasonable belief about facts, even though later it turns out to have been mistaken.

A. CONSENT. Word, conduct, inaction, or such expression as would reasonably be understood to manifest consent. Defeats liability for any tort. Called "assumption of risk" in negligence and strict liability cases.

1. Willingness for it to happen: a) actual willingness, b) apparent willingeness, c) implied consent (from statutes) - hospital, emergency situations.

2. Valid whether or not communicated to D.

3. Majority Rule - where paties agree to engage in combat, each is civilly liable to the other. Minority rule - cannot recover in fights unless excessive force or malicious intent.

4. If person commits felony, cannot recover if hurt while doing it. (A gives B cocaine, B is hurt, B cannot recover).

5. Case of consenting prostitute who did not get paid - no battery. Fraud is on payment, not on conduct. She can recover in contract law.

6. Customary risk of an activity does not bar action for intentional injuries (abuse in football).

7. Mature minor rule: 0-7 no consent, 7-14 rebuttable no consent, 14-18 rebuttable consent presumed.

8. If A commits battery on B, and B subjectively feared the contact, A may still rely on the defense of consent. Consent is measured by objective appearances, not unexpressed subjective desires.

Potential Grounds for invalidation of consent: A) Illegal conduct - majority says can sue, no defense if illegal activity. B) fraud or misrepresentation; C) Mistake where D is aware; D) Duress; E) Age (minors); F) Mental Status.

B. SELF-DEFENSE ELEMENT. D must have (1) good faith belief that it is necessary, (2) belief reasonable, (3) unresolved = true harm + good faith, but unreasonable, (4) level of force must be appropriate, (5) some juris. require retreat. D has a privilege to use force necessary to protect himself from imminent physical harm.

1. No retaliation; excessive beating; may lead to cross action.

2. When threat ends, privilege ends.

3. Mistake - a reasonable mistake is allowed. (Mistakenly shoot a policeman)

4. Duty of Retreat - generally required unless in your own home or making a lawful arrest.

5. Apparent necessity - only use force if there is a real threat of harm.

6. Defense of others - may use this defense if these same conditions apply to a third party.

A) Mistake - if D is mistaken and 3rd party would have no right of self-defense, then D has no privilege.

7. Only use force of serious bodily injury force when he believes he is in similar harm.

8. Mechanical devices cannot be used and may attach liability even if a person in the situation would have had right to use wounding force. R2T ?? 84, 85:

C. PROTECTION OF PROPERTY. Force reasonable under the circumstances to protect land or chattels. Occupants entitled to push/pull/carry/lead intruder off their premises. Barbed wire and glass on walls may be used in customary way without subjecting the owner to liability. Warning may alleviate liability.

1. Must request actor to desist unless belief that request would be useless.

2. Def. must reasonably believe taking of property is unprivileged.

3. D is subject to liability for harm caused to intruder by mechanical devices which he would not have been privileged to inflict himself if present. You cannot say "I would have had a reasonable belief." Spring gun has no mind of its own to make a reasonable decision. Owner is liable. Only time spring gun is justified is if intruder intends violent felony. Katko v. Brinney.

D. RECAPTURE OF LAND OR CHATTELS. Property owner has right to use reasonable force to regain possession of land or chattels taken from her by someone else.

1. Reasonable time. Fresh pursuit - goes about other business, he loses this privilege.

2. authorized to retrieve chattels deposited on someone else's land.

3. No deadly force.

E. DEFENSE OF NECESSITY

1. Public Necessity - the public has the right to do whatever is necessary to defend the greater good of society. The public is NEVER liable for damage in this tort. Complete privilege. Priv. individ. can act in public necessity.

2. Private Necessity - requires 1) good faith belief by D in necessity of action; 2) belief must be reasonable; 3) risk must significantly outweigh risk to P's property; 4) appropriate means (cannot tie boat to pillar of P's house). Incomplete privilege - you are liable for damages, but not for trespassing.

3. There is no "necessity" if the actor caused the peril which he seeks to avoid.

III. NEGLIGENCE

Elements of a prima facie case: 1) duty, 2) violation of stnd of care; 3) causation; 4) proximate causation; 5) compensable harm. Note: 3) does not imply 4)

THE CENTRAL CONCEPT

2. Standard of care vs. standard of proof: "1% chance that child could find poison could be negligent" vs. "51% probability or more likely than not"

Objective standard of care generally: degree of care a reasonable person under similar circumstances would exercise. If D crosses below this line, he is liable. The risk, reasonably perceived, defined the duty owed. If risk NOT FORESEEABLE = NO NEGLIGENCE.

a. Best judgment immaterial. Your best may not be good enough; ordinarily immaterial.

b. Physical handicap. When the D suffers a physical handicap, the "reasonable person" will be deemed to have the same handicap. Note: subjectivity enters.

c. Mental incapacity. A person with a mental incapacity is held to the same standard of care as a person of ordinary intelligence because of the difficulties that would occasion determining the degree of disability. Restatement (Second) of Torts, ? 283B, states that insane persons are held in all respects to the reasonableness standard of a sane person, the only exception being where malice or intent is necessary for the cause of action (which is not applicable to negligence). Exception: Breunig, lady crashed into back of car thinking light would levitate her. Ct. held if mental disorder (1) robs her of ability to understand or appreciate duty or (2) ability to control car and no forewarning of impairment, then not liable.

d. Children. The usual objective standard of care has been somewhat modified in the case of children. Majority view - standard is based on what may be expected of children of like age, intelligence, and experience. At common law, a child under age seven was presumed to be incapable of negligence, between the ages of seven and 14 rebuttably presumed incapable, and over 14 presumed capable. A minority of jurisdictions still have arbitrary age limits.

When driving a car. A few jurisdictions still make the age, intelligence, and experience allowance when a child is driving a car or engaging in other "adult" activity, but the majority of cases hold children to an adult standard in such situations. (R2T ? 283(A) is in accord).

e. In Emergency situation. D "cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect." Subway driver and crash case.

3. Reasonable care as limitation -- D must only exercise ordinary care in light of ordinary risk. "No custom has been disregarded." "Only some extraordinary casualty" could bring boy in contact with wires. The foreseeability of the harm is balanced against the ability to prevent the injury. Judg. for D as a matter of law. "The trolley wire case"

4. Learned Hand Formula (Calculation of Risk)

1. Burden Probability Loss

a. if B < PL, then negligence exists

b. if B > PL, then no negligence exists

2. Difficult to quantify, cost-benefit analysis, economics flavor

5. CUSTOM - Following custom in the community or trade practice is not conclusive. The custom is merely evidence of the standard of care owed. The test still is whether the average reasonable person would have so acted under the same or similar circumstances. Custom - means it is feasible & practical, provides opportunity for learning the safe way. R2T ? 286 - If a person has superior knowledge to custom, he must use that superior knowledge. (Otherwise an entire industry could keep its standards artificially low)

6. MEDICAL MALPRACTICE - general rule: professional standard is conclusive. A doctor or other professional is required to have the same skill and learning as average members of the profession and to apply that skill and learning with the same care as generally exercised by other members of his profession.

a) Establishing the Standard of Care Through Experts -- testify as to practices in the field. Examples where experts not necessary: operate on wrong leg, leave instrument in the body. Considerations for statutes defining standard of care: 1) geographic - e.g., state-wide, specialists have a national standard of care 2) professional - in D's specialty and profession, 3) temporal.

b) Informed Consent Doctrine. Protects a person's autonomy decision. "Patient Rule" - lay person determines which risks are acceptable, physician - determines the risks. Standard of disclosure - not a medical decision, a personal decision.

definition of material - what a reasonable person would consider as a significant risk, given the physician's knowledge. Materiality and causation - two separate grounds for decision.

Proof patient must have for implied consent action: 1) existence of a material risk unknown to patient. 2) failure to disclose risk 3) disclosure would have led a reasonable patient to reject the medical procedure or choose an alternative - causation; 4) injury - causation, effect of procedure.

Defense to informed consent: 1) would cause detrimental effect on physical or psychological well-being; 2) incapable of consenting - mental disability, infancy; 3) emergency; 4) so obvious, justify presumption; 5) simple procedure and risks remote; 6) physician did not know and should not have known.

C. THE ROLES OF JUDGE AND JURY

1. In General. If an act was negligent as a matter of law (negligent per se), the judge will so instruct the jury. Thus, the "proper" standard of care is given the effect of law by the courts. If an act is not negligent per se, the judge will leave it to the jury to determine whether the act was negligent. This procedure has been adopted in order to prevent juries from being overly swayed by their emotions. In Goodman, Justice Holmes got swayed into saying a driver should get out of his car and look both directions before crossing a railroad track. Led Cardozo in Pokora to disapprove of this dictum from Goodman. Pokora points out that there are no ironclad rules as to what is negligent conduct; the duty varies with the circumstances. It is usually negligence as a matter of law not to stop, look, and listen, but not always. This holding is the better of the two cases. A P should be given the chance to let the jury decide the extent to which his negligence contributed to his woe.

D. VIOLATION OF STATUTES. (No foreseeability issue, unlike common law negligence) Statutes that affect defendant's conduct may be either civil or criminal. If plaintiff is provided a civil remedy under the statute, he will not have to be concerned with negligence. However, where defendant has violated a criminal statute and, in the process, injured plaintiff, he may be chargeable with negligence in addition to the crime. When a court adopts a standard of care embodied in a criminal statute, the rationale is that a reasonable person always obeys the criminal law. However, for plaintiff to support a claim that the violation of the criminal statute by defendant was negligence, the statute must have clearly defined the conduct or duty required and the class or individual to whom it applies. Failure of defendant to act as required will constitute a breach of the duty. However, for P to establish liability, he must show that he is in the class from the type of injury P suffered. Depending upon the jurisdiction, violation of a statute can have several effects. The majority view finds violation of a statute to give rise to a conclusive presumption of negligence. However, where P's claim is based on violation of the statute of negligence, D generally has available to him the defenses of comparative negligence and assumption of risk.

Violation of the statute rule: For it to apply: 1) P within class; 2) harm, materialization of risk sought to prevent - proximate cause must be sufficiently close to the statute's design; 3) appropriate (not outdated); 4) unexcused (or statutory purpose) - walk on right side of road under certain conditions; 5) violation. THEN procedural effect: negligence per se.

General Rule: Compliance does not automatically signify that you have met the standard of care. R2T ? 288(c).

Preemption - compliance precludes liability or implies no liability, then tort claims are preempted. Example: If Fed. statute is comprehensive + supremacy clause, then tort claims are preempted.

Violation of safety legislation -- "Buggy collision with car case" Unexcused omission of the statutorily required lighting is negligence in itself. To omit safeguards prescribed by statute for the benefit of others is to fall short of the duty of diligence owed toward the rest of society.

Exceptions to the general rule -- "Pedestrian struck while walking on the right-side of road case" We cannot reasonably assume the legislature intended that a statute enacted for the safety of pedestrians must be observed when observance would subject them to more imminent danger. Statutes such as the one in question may be properly construed as intended to apply only to ordinary situations. Thus, the statute may be subject to an exception if disobedience is likely to prevent rather than cause the accidents that the statute seeks to prevent.

LICENSING STATUTES. Licensing statutes are not ordinarily used to set standards of care. Failure to obtain a license is not negligence per se.

E. PROOF OF NEGLIGENCE

1. Plaintiff's Burden. If persons of reasonable intelligence may differ as to the conclusion to be drawn, the issue must be left to the jury; if not, the court will decide. Generally, the burden of proof, i.e., the risk of nonpersuasion, is on the plaintiff, and if the evidence he introduces is not greater or more persuasive than that of his adversary, he must lose. The burden of going forward with presenting proof, on the other hand, is established by presumptions, and the failure to rebut a presumption may result in a directed verdict.

a. Circumstantial evidence. Circumstantial evidence is the proof of one fact, or group of facts, that gives rise to an inference by reasoning that another fact must be true.

b. In slip and fall cases - P would like to prove facts showing a minimum of time and knowledge of risk such that reasonableness would have led D to some corrective action.

2. Res Ipsa Loquitut ("RIL"). RIL, directly translated, means "the thing speaks for itself." Res ipsa loquitur is applicable if: (i) the accident is the kind that will not normally occur without someone's negligence; (ii) the cause of harm is in the exclusive control of D at time of alleged negligent condition; (iii) P did not in any way voluntarily contribute to the harm. If these three elements are proven, P need prove nothing else to establish liability. Airplane crash case Majority view - permissible inference.

a. Rationale. The courts recognize RIL because of the existence of injured plaintiff and a D who has better access to the evidence concerning the injury. However, the doctrine does not apply if negligence by D is no more likely than another explanation.

b. Burden of defendant. RIL puts the burden on defendant to explain that (1) the accident resulted from something else; (2) he exercised due care in every respect; (3) instrument not in the exclusive control of D.

1) There must be some evidence of negligence, but control of the instrumentality by D gives rise to an inference that it happened from lack of care if it would not ordinarily happen without a lack of care.

2) The doctrine applies when reasonable people would agree that at least 51% of the probabilities point to D's liability. P does not have to prove it is the only explanation, only the most probable.

3) Constructive Notice -- Slip and fall baby food jars case. The broken baby food jars had been on the floor for an extended period of time. During this time, D's employees could have discovered and remedied the situation.

4) No evidence of constructive notice. -- Slip and fall at Museum case. No evidence in this case indicates how long the piece of wax paper was on the steps. This absence of evidence offers no way to determine whether D's employees should have had constructive notice (implies time) of its presence. Sufficient length of time in question

Comment. Negri and Gordon may be distinguished by the amount of evidence that was offered by P. In Negri there was sufficient evidence offered to give rise to an inference that the employees should have discovered the danger. Gordon provided no evidence to give rise to such an inference. Although res ipsa loquitur may be used to infer issues that are not subject to direct proof, there must be sufficient circumstantial evidence offered to give rise to those inferences.

5) BYRNE v. BOADLE, P was walking on a street when a barrel rolled out of D's window, striking and injuring him. There was no other evidence. All that is necessary is that reasonable people would say that more likely than not there was negligence. The fact of the barrel falling is prima facie evidence of negligence. If there are any facts inconsistent with negligence, it is up to D to prove them. This case speaks to the first element of RIL only.

6) Evidentiary presumption -- Private plane crash case. There is no other probable explanation for the crash except negligence. Weather was clear. D had full control of the plane; he was only licensed pilot. P was in the back seat. The elements of res ipsa loquitur can be an evidentiary presumption. If P can prove the three elements, he need not prove actual negligence of D. The negligence is simply presumed.

7) Rarity is not sufficient for res ipsa loquitur. Rarity does not matter. When such an injury occurs, more likely than not it is due to negligence.

8) Ybarra. More than one D had exclusive control. 2nd prong of RIL is to link cause of injury to D's negligence. Can't do it in this case, but court expands to permit each D to be held liable. Each called upon to explain his conduct. Each D had exclusive control, direct contact with P. To contain Ybarra: limited to doctor-patient relationship and peculiar vulnerability of someone under anesthesia. "Smoke'm out" conspiracy of silence.

9) Flower pot falling out of apartment complex window does not meet the 2nd prong of the RIL test. Cannot show exclusive control to any D.

F. LANDOWNERS AND OCCUPIERS

1. Duty of Owners and Occupants of Land. Three factors: status of entrant, state of knowledge of D (on notice of potential to cause injury), source of injury.

A. Trespassing adult. Trespasser is one who comes onto the land without permission or privilege; they must take the premises as found and are presumed to assume the risk of looking out for themselves. GENERAL RULE: landowner owes no duty to an undiscovered trespasser.

B. Duty owed known or discovered trespassers. Warn of, or make safe, any known artificial conditions that could could serious bodily injury or death. Also liable for intentional willful and wanton misconduct by landowner.

C. Licensees. A licensee is one who goes on the land of another with the permission of the owner/occupier, through authority of law, or by necessity, and is deemed to take the land as the occupier uses it. GENERAL RULE: landowner/occupier must warn the licensee of, or make safe, known natural or artificial conditions or activities involving any risk of harm that the licensee is unlikely to discover, whether existing at the time of entry or arising thereafter. Licensee business reason or by open invitation to the public.

1) Social guest. "Invitee" is a word of art; it does not include all persons invited onto the premises. A social guest, though invited, is only a licensee. The fact that a guest renders some incidental service or was invited out of economic motives does not remove the guest from the status of licensee.

2) Known danger. Duty covers only known natural or artificial dangerous conditions. No duty to warn of obviously dangerous conditions.

Case with traditional view: Woman falls off deck and injures hip; deck had no guardrails. P could reasonably assume usual conditions existed. When Mr. Adler opened the door to let in fresh air, that act alone constituted an implied invitation for his guests to remove themselves to the deck. P did not exceed the scope of her license as a matter of law and thus became a trespasser entitled to no warning concerning the condition of the deck. Fitch v. Adler

Application discarding categories: