Torts Outline 1

Torts Outline 10/12/13 8:10 PM

Intentional Torts

Battery

Rule: Intent to cause a harmful or offensive contact, or an apprehension thereof,

and the harmful or offensive contact occurs. Restatement §13 and §18

Elements:

Intent

o Actual: Purpose to bring about the harmful or offensive contact; or

Constructive: Having knowledge that the harmful and offensive

contact is substantially certain to result.

Caudle v. Betts: A harmful or offensive contact with a person,

resulting from an act intended to cause him to suffer such a

contact, is a battery.

Gragg v. Calandra: Intent to do good does not eliminate liability for

battery.

o Transferred Intent

Rule: If a harmful or offensive contact (or an apprehension thereof) is

intended against one person, and that contact is made with a third

person, then the first actor is liable for batter against the third person.

Davis v. White

o Facts: Plaintiff was hit by a bullet fired by the defendant,

intended to hit someone else.

o Rule: If an actor intents to cause a harmful or offensive contact

on one person, and ends up making the contact with another,

he is still liable for battery.

Contact

o Direct or indirect

o Extension of the Person

Fisher v. Carrousel Motor Home: Actual physical contact is not

necessary to constitute a batter so long as there is contact with

clothing or an object closely identified with the body.

o Harmful, or

o Offensive: A bodily contact is offensive if it offends reasonable sense of

personal dignity. Restatement §19.

McCracken v. Sloan: “Glass-case argument.”

Leichtman v. WLW Jacor: Changing times can affect whether or not

something is considered offensive.

Assault

Rule: An actor is liable for assault if he acts intending to cause a harmful or

offensive contact with a person or a third person, or an imminent apprehension

there of, and the other person is thereby put in such an imminent apprehension.

Restatement §21.

Elements

Intent

Imminent Apprehension: for an actor to be liable for assault, he must put the

other in an apprehension of an imminent contact. Restatement §29.

o The person put in the imminent apprehension need not be fearful, upset

or scared, they only need to anticipate the contact,

o A threat for a future contact does not make an actor liable for assault.

o Imminence requires the ability to complete the act.

False Imprisonment

Rule: An actor is liable for false imprisonment if he intended to confine another

or third person within boundaries fixed by the actor, and the action directly or

indirectly results in the confinement that the other is conscious of the

confinement or is harmed by it. Restatement §35.

Elements

o Intent

o Direct or indirect confinement

Confinement must be total

Physical force is not necessary if there is a threat of force.

o Other’s conscious awareness of the confinement or harm by the confinement.

o Shopkeeper’s Privilege”

Coblyn v. Kennedy’s Inc.

Facts: Plaintiff shopped at defendant’s store. He was wearing an ascot

which he put in his pocket while in the store. Right before exiting, he

stopped, pulled it out of his pocket and put it on. An employee of the store

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who believed he had stolen the ascot stopped him. The employee, who

grabbed the plaintiff’s arm, and told to go upstairs to the manager,

physically stopped him.

Defendant claimed “shopkeeper’s privilege” as a defense.

Shopkeeper’s Privilege: A merchant, or an authorized agent may detain

any person suspected of committing a larceny if 1) the person was

detained in a reasonable manner, 2) for a reasonable amount of time and

3) there were reasonable grounds for believing that person detained was

committing or attempting to commit a larceny.

o To act in a reasonable manner, the actor must identify him or

herself and behave appropriately.

o To determine if an actor has reasonable grounds to detain

someone, objective standards must be used. The “Prudent and

cautious man rule” is to be used when considering this issue.

Intentional Infliction of Emotional Distress

Rule: One who by extreme or outrageous conduct intentionally or recklessly

causes severe emotional distress to another is liable for the distress and if bodily

harm is caused, the actor is subject to the harm. Restatement §46.

Elements

o Extreme or outrageous conduct

Objective Standard

Must be so outrageous that upon hearing of it, one exclaims

“Outrageous!”

o Intentional or reckless

o Resulting in severe emotional distress

Only intentional tort which requires that damages be pleaded.

State Rubbish Collectors Association v. Siliznoff

o Facts: Siliznoff took a rubbish collector job while not part of the union.

The union threatened to harm him unless he met their demands.

o Rule: Threatening injury is an outrageous and extreme conduct

intentionally performed and if it results in emotional distress, the actor is

liable.

Logan v. Sears

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o Facts: Plaintiff received a call about his Sears bill. He overheard the

telephone operator calling him “queer as a three dollar bill.” Plaintiff

claimed IIED.

o Court relies on the reasoning that the word “queer” is not extreme and

outrageous, and thus fails to establish IIED.

Snyder v. Phelps

o Facts: Phelps, of the infamous Westboro Baptist Church, protested a

soldier’s funeral with signs with hateful, clearly extreme and outrageous

messages. The conditions for IIED were clearly met.

o Issue: Were the church members protected from liability under the First

Amendment?

o Rule: If the extreme and outrageous speech is in a public place on a

matter of public concern, it is protected under the First Amendment, and

the actor cannot be held liable for IIED.

Privileges

ConsentRule: Willingness in fact for conduct to occur. It may be manifested by action or

inaction and need not be communicated to the actor. If the words or conduct are

reasonably understood by another to be intended as consent, they constitute

apparent consent and are as effective as consent in fact. Restatement §892

Bang v. Charles T. Miller Hospital

Facts: Defendant was operating on the plaintiff to fix a prostate problem. The

defendant did more than the plaintiff had consented to and ended up

sterilizing the plaintiff.

Rule: Where a physician or surgeon can ascertain in advance of an operation

alternative situations and no immediate emergency exists, a patient should

be informed of the alternative possibilities and given a chance to decide

before the doctor proceeds with the operation.

Hackbart v. Bengals

Facts: Plaintiff was injured by an opposing player during a football game. The

defendant intended to cause harm beyond that which is typical for the game.

Rule: A player consents to those actions which might be expected in the

course of the game. However, if the rules prohibit such an action, then the

player’s consent does not extend to that action.

Self-Defense

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By force not threatening death or serious bodily harm

Rule:

(1) an actor is privileged to use reasonable force, not intended or likely to

cause death or serious bodily harm, to defend himself against unprivileged

harmful or offensive contact or other bodily harm which he reasonably

believes that another is about to inflict intentionally upon him.

(2) Self-defense is privileged under the conditions stated in Subsection (1)

although the actor correctly or reasonably believes that he can avoid the

necessity of so defending himself,

(a) by retreating or otherwise giving up a right or privilege, or

(b) by complying with a command with which the actor is under no

duty to comply or which the other is not privileged to enforce by the

means threatened.

o Reasonable force and reasonable belief are both objective standards.

o At the same time, you actually need to hold the belief that the intentional

infliction of contact will occur.

o You do not need to retreat or give up rights.

By force threatening death or serious bodily harm

Rule:

(1) Subject to the statements in Subsection (3), an actor is privileged to

defend himself against another by force intended or likely to cause death or

serious bodily harm, when he reasonably believes that

(a) the other is about to inflict upon him an intentional contact or

other bodily harm and that.

(b) he is thereby in peril of death or serious bodily harm or

ravishment, which can safely be prevented only by the immediate use

of such force.

(2) The privilege stated in subsection (1) exists although the actor correctly

or reasonably believes that he can safely avoid the necessity of so defending

himself by

(a) retreating if he is attacked within his dwelling place, which is not

also the dwelling place of the other, or

(b) permitting the other to intrude upon or dispossess him of his

dwelling place, or

(c) abandoning an attempt to effect a lawful arrest.

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(3) The privilege stated in subsection (1) does not exist if the actor correctly

or reasonably believes that he can with complete safety avoid the necessity

of so defending himself by

(a) retreating if attacked in any place other than his dwelling place, or

in a place which is also the dwelling place of the other, or

(b) relinquishes the exercise of any right or privilege other than his

privilege to prevent intrusion upon or dispossession of his dwelling

place or to effect lawful arrest.

o Needs to be a reasonable belief that the only way to stop the harm is to use

such force.

o Subjective in that he needs to hold the belief, objective in that the belief

needs to be reasonable.

o Must be a last resort. If you can avoid the necessity by retreating, you must

do so.

Character and extent of force permissible

Restatement §70: The actor is not privileged to use any means of self-

defense which is intended or likely to cause a bodily harm…in excess of

that which the actor correctly or reasonably believes to be necessary for

his protection.

Defense of Others

An actor generally has authority to defend others, including strangers.

If that person didn’t have the right to defend themselves, then you

typically can’t use the force to defend them.

In some cases, if you reasonably believed they were in need of defense

and acted on that belief, you might be privileged to use such force.

Defense of Property

Defense of possession by force not threatening death or serious bodily

harm

Rule: An actor is privileged to use reasonable force, not intended or likely

to cause death or serious bodily harm, to prevent or terminate another's

intrusion upon the actor's land or chattels, if

(a) the intrusion is not privileged or the other intentionally or

negligently causes the actor to believe that it is not privileged,

and

(b) the actor reasonably believes that the intrusion can be

prevented or terminated only by the force used, and

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(c) the actor has first requested the other to desist and the

other has disregarded the request, or the actor reasonably

believes that a request will be useless or that substantial harm

will be done before it can be made.

Restatement §77

Defense of possession by force threatening death or serious bodily

harm

Rule: The intentional infliction upon another of a harmful or offensive

contact or other bodily harm by a means which is intended or likely to

cause death or serious bodily harm, for the purpose of preventing or

terminating the other's intrusion upon the actor's possession of land or

chattels, is privileged if, but only if, the actor reasonably believes that the

intruder, unless expelled or excluded, is likely to cause death or serious

bodily harm to the actor or to a third person whom the actor is privileged

to protect.

o Similar application as in §65. There isn’t a heightened ability to

defend property.

Katko v. Briney

o Use of deadly force is only acceptable if the actor is present and

being threatened.

o The spring gun used by the plaintiff was not a reasonable means of

defense.

o Dissent says that intent of the party defending himself natters.

Negligence

Elements of Negligence

Duty

Breach of the Standard of Care

Cause-in-fact

Proximate cause

Damages

Economic Theory of Negligence In the absence of tort liability, precaution costs would be low and injury costs

would be high.

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Reasonable precautions must be taken. One way to do this is by requiring people

to take cost effective options

Breach of the Standard of Reasonable Care

Reasonable Care

General Standard: Ordinary, prudent person

Other standards based on violations of statutes, custom, etc.

Must prove breach. Factual question. Can use res ipsa.

Hand FormulaRule: When B (burden) is less than P(probability) x L(Loss), there is a

duty to take on the burden.

Not a mathematical formula in a strict sense. It’s a standard

for judging reasonable care.

Restatement (Second) of Torts §291

Where an act is one which a reasonable man would recognize

as involving risk of harm to another, the risk is unreasonable

and the act is negligent is the risk is such magnitude as to

outweigh what the law regards as the utility of the act or of the

particular manner in which it is done.

Restatement (third) of Torts §3 (Risk-benefit test)

A person acts negligently if the person does not exercise

reasonable care under all the circumstances. Primary factors to

consider in ascertaining whether the person’s conduct lack

reasonable care are the foreseeable likelihood that the

person’s conduct will result in harm, the foreseeable severity

of any harm that may ensure and the burden of precautions to

eliminate or reduce the risk of harm.

Restatement (second) of torts §292

Factors considered in determining the utility of Actor’s

conduct:

A) social value attached to the interest which it to be

advanced

B) Extent of chance this interest will be advanced.

C) Extent of chance that such interest can be adequately

advanced by less dangerous course of conduct.

Washington v. Louisiana Power and Light

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Facts: Decedent, plaintiff’s father, hit an uncovered power line

with the antenna of a ham radio and died. He had previously

asked the power company to cover the line to make it safer.

Rule: Hand formula. If the burden to move the power line is

less than the loss times the probability, then the power

company has a duty to act.

Factors to consider when choosing a rule

1. Fairness – about individuals, or generalized individuals,

2. Policy – general societal concerns

3. Institutional or process concerns – concerns of the court.

Reasonable Care Case LawCharbonneau v. MacRury

Minor gets into a car accident while driving a car. Should the standard

be that of a reasonable prudent person, or a reasonable prudent

minor?

When weighing the factors, the court decided it was unfair to children

to hold them to the same standard as adults.

Daniels v. Evans

Same general facts as Charbonneau.

Court decides that when a minor is engaging in adult related activities,

he should be held to the same standard as an adult. It’s unfair to

drivers who can’t reasonably tell if a minor or an adult is driving.

Breuing v. American Family Ins Co

Woman driving when she is overcome by momentary insanity and

crashes the car as a result.

Should the court use a ordinary, prudent person standard or that of

someone overcome with momentary sanity?

Typically, insane people are liable for torts they commit. However,

when a person has no way of knowing that they would be overcome

with insanity, they are not liable. Same for a physical illness, such as a

stroke or heart attack.

Cordas v. Peerless transporation

Cab driver was driving a criminal running from his muggee. Criminal

threatened cab driver with a gun. Cab driver fled the vehicle while it

was running and the car hit people.

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Should the cab driver be held to the standard of an ordinary, prudent

person, or an ordinary prudent person in an emergency?

He should be held to the standard of an ordinary person in an

emergency. Unfair to ask people to go against instinct.

Violation of StatutesRule: Restatement § 286 When Standard of Conduct Defined by Legislation or

Regulation Will Be Adopted

The court may adopt as the standard of conduct of a reasonable man

the requirements of a legislative enactment or an administrative

regulation whose purpose is found to be exclusively or in part

(a) to protect a class of persons which includes the one whose interest

is invaded, and

(b) to protect the particular interest which is invaded, and

(c) to protect that interest against the kind of harm which has

resulted, and

(d) to protect that interest against the particular hazard from which

the harm results.

If you have a safety statute aimed at keeping people safe and the plaintiff

was in the class of people being protected and the harm was the kind of

harm trying to be prevented, then you may have an exception to the

prima facie negligence case.

Not following a statute is not automatically negligence.

Exception: Where it is unsafe to follow a safety rule, you may be excused

from following the safety rule.

Statutory Rules

Speculate as to the purpose of the rule

The statute might state its purpose. Need to make an argument based on

intent

Make justified inferences about intent.

Custom Sometimes, reasonableness can be based on custom. When there is a custom

to do something one way, it’s usually because that is what ought to be done.

Plaintiff can assert defendant’s deviation from custom to demonstrate

negligence, and defendant may show compliance with a custom to avoid

liability.

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Evidence of the custom is important. Look at expert testimony, publications

from the government and industry.

The custom must be one related to safety and the harm has to be the kind

being protected against.

Use local standards of custom, unless it’s a med mal case, then use national.

In determining whether reasonableness is based on a custom:

o Look at whether the custom is well known in the industry

o Put people on the stand who would know about the custom.

o Look at publications from the government or the industry .

TJ Hooper

Sometimes even when the step a defendant should have taken isn’t a

custom, the court will set a higher standard of reasonableness based on

safety needs.

Meeting a statute or a custom doesn’t necessarily show that you were

reasonable.

Res Ipsa Loquitur Rule: To use Res Ipsa, you must show 1) exclusive control and management by

the defendant and 2) it would not have happened without negligence.

o Using the test shifts the burden to the defendant.

o Means “the thing speaks for itself.”

Acts as a shortcut to proving negligence.

If there isn’t good evidence, sometime negligence can be established based on

what was observed.

Escola

o If evidence shows that the issue happened while in exclusive control and

nothing has changed since it left control, res ipsa applies.

Breach of the Standard

Factual question.

Proven by

o Res Ipsa

o Circumstantial evidence

o Direct evidence

Duty

General Rules for the Existence of a duty

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Base rule: When your conduct creates a risk of injury to others, you have a

duty of reasonable care (ordinary prudent person) to those others. We don’t

general impose duties on non-actors.

You have no duty when your conduct has not created a risk to others.

When your conduct does create a risk of injury, use Rowland factors

to determine duty.

Duty is a question of law, not of fact.

Might have a duty to act, even when your conduct does not create a

risk of injury, in some cases.

o Misfeasance: Defendant affirmatively acts in some way which injures the

plaintiff.

o Nonfeasance: Defendant failed to act, resulting in harm to the plaintiff.

Contractso Winterbottom v. Wright

A defendant who is in a contract with someone owes a duty to

whomever they are in a contract with.

Under Winterbottom, If duty arises from a contract, outside that

contract, there is no duty.

If there is no contract, there is no duty.

o MacPherson v. Buick Motor Co.

Liable to those who are foreseeably in danger.

Where you put something dangerous into the stream of commerce,

you hare liable where someone is injured and that person is

foreseeable as a potential plaintiff.

o Moch v. Rensselaer Water Co.

Public policy may play a role in cutting off duty where doing so is

beneficial to society as a whole.

o Palsgraf v. Long Island RR

Foreseeable zone of danger; Duty to those who are foreseeably

injured by negligence.

You owe a duty to specific people when there is privity.

Duty of Possessors of Lando Categories of land users

Invitee: On the land for a purpose related the purpose of the land.

Public Invitee: Land is open to the public and the person is

there for the purpose that the land is open.

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Business Visitor: The invitee is on the land for purposes related

to the business activities.

Licensee: Person who enters and remains on the land with the owners

express consent. The possessor’s social guest.

Trespasser: enters or remains on land without privilege of the

possessor

Children

Known

Unknown

Constant

Committing a Crime

o Types of Land Conditions

Artificial conditions

Natural conditions

Known conditions

Unknown conditions

o Duties to an invitee

When a condition on the land causes harm, possessor is liable to an

invitee when he or she

Knew, or

by exercise of reasonable care would have known, and

should realize that the condition poses an unreasonable risk of harm,

and

Should expect that the invitee will not discover the danger,

And fails to exercise reasonable care to protect the invitee.

Restatement §343

o Duties to a Licensee

When a condition on the land causes harm, the possessor of land is

liable to an invitee if

The possessor knows or has reason to know of the conditions

and should realize that it involves an unreasonable risk of

harm to such licensees, and should expect that they will not

discover or realize the danger, and

He fails to exercise reasonable care to make the condition safe,

or to warn the licensees of the condition and the risk involved,

and

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The licensees do not know or have reason to know of the

condition and the risk involved.

o Restatement §342

o Duties to Trespassers

Children

A possessor of land is subject to liability for physical harm to

children trespassing thereon caused by an artificial condition

upon the land if

o The place where the condition exists is one upon which

the possessor knows or has reason to know that

children are likely to trespass, and

o The condition is one which the possessor knows or has

reason to know and which he realizes or should realize

will involve an unreasonable risk of death or serious

bodily harm, and

o The children, because of their youth, do not discover the

conditions or realize the risk involved in intermeddling

with it or in coming within the area made dangerous by

it, and

o The utility to the possessor of maintaining the condition

and the burden of eliminating the danger are slight as

compared with the risk to children involved, and

o The possessor fails to exercise reasonable care to

eliminate the danger or otherwise protect the children.

o Restatement §339

o Constant Trespasser

Where a land occupier actually is aware of the presence of a

trespasser and knows that the trespasser is approaching a non-

evident artificial (human-made) condition, the land occupied is

obligated to warn the trespasser if there is danger of serious bodily

harm or death.

Possessor is liable if

Possessor has knowledge that the condition is likely to cause

death or serious harm and

Possessor has failed to exercise reasonable care to eliminate

the danger or otherwise protect the trespasser.

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o Known Trespasser

Where a land occupier actually is aware of the presence of a

trespasser and knows that the trespasser is approaching a non-

evident artificial (human-made) condition, the land occupied is

obligated to warn the trespasser if there is danger of serious bodily

harm or death.

A possessor of land who maintains on the land an artificial condition

which involves a risk of death or serious bodily harm to persons

coming in contact with it is subject to liability for bodily harm caused

to trespassers by his failure to exercise reasonable care to warn them

of the condition if

The possessor knows or has reason to know of their presence

in dangerous proximity to the condition, and

The condition is of such a nature that he has reason to believe

that the trespasser will not discover it or realize the risk

involved.

A land possessor has no duty to protect a known trespasser

from natural conditions on the land.

Restatement 337

o Trespasser committing a crime

General duty is to refrain from wanton and willful conduct.

o Unknown Trespasser

General duty is to refrain from wanton and willful conduct.

o Rowland v. Christian

Factors for determining a duty

Foreseeability of the harm to the plaintiff

Degree of certainty

Closeness of connection between defendant’s conduct and

injury suffered

Moral blame attached to the defendant’s conduct

Policy of preventing future harm

Extent of burden to the defendant and the consequences of the

community of imposing a duty to exercise care

Availability, cost and prevalence of insurance for the risk.

Duty to Rescue General Rule: No duty to rescue

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Exceptions:

o Duty arises when the instrumentality causing the injury

is under the exclusive control of the defendant.

o Duty arises when the defendant undertakes to act and

the plaintiff relies on the defendant’s undertaking.

o Duty arises when the defendant causes a plaintiff’s

injury

o Duty where you’ve taken charge of someone who is

incapacitated.

o Duty where you’ve created the risk, which ultimately

puts a person in peril.

o Duty arises when there is a special relationship

between the plaintiff and the defendant.

Common carrier/passenger

Innkeeper/guest

Landowner/invitee

Custodian/ward

Employer/Employee

Duties to Protect General Rule: No duty to protect to protect from injury caused by a

third party

Exceptions

o Where the defendant has a unique level of control over

the risk and a unique knowledge of the risk, there is a

duty to protect.

o Where a special relationship exists, you have a duty to

protect

Doctor/patient

Parent/Child

School/Student

Duty to warn can be a part of duty to protect.

Cause-in-Fact

Defining Cause “But-For” Causation – But for the defendant’s conduct, the injury

would not have occurred.

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There must be a chain of cause and effect

The cause the plaintiff asserts must flow from the defendant’s

negligence.

Burden of proof for cause in fact is on the plaintiff.

Not “the cause,” but “a cause.” There can be many causes.

Multiple Tortfeasors Joint and Several Liability

Way in which we add up the liability of tortfeasors who are

involved.

Can sue the multiple tortfeasors together for the same action,

and each are individually liable for the whole of the damages to

the plaintiff.

Plaintiff cannot get more than their total damages.

Concurrent and Preemptive Causal Conditions

Kingston v. Chicago

o Majority Rule

If negligence is a substantial factor in the injury,

then the actor is liable. Use where causal factors

have combined. Where but-for fails.

Where one tortfeasors is known and the other is

unknown, the known tortfeasors is liable for all

damages if their negligence is a substantial factor

in the damages.

o Minority Rule

If your negligent act, combined with an act of

God are the cause of thekm injury, the actor is

not liable.

Dillon v. Twin State Gas and Electric Co.

o Look specifically at what was caused and tie the damage

directly to the injury.

Casual Uncertainty and Apportionment

Summers v. Tice

If the plaintiff can show that two or more defendants were at

fault, but only one could have caused the injury, the defendants

assume the burden of proving that they weren’t the but-for

cause, otherwise they would be held liable.

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Ybarra v. Spangard

When a group of defendants has knowledge and control, the

burden of proof shifts to the defendants. There needs to be

some sort of shared responsibility of that control.

Contribution Every defendant who is jointly and severely liable is liable to

the plaintiff for the whole of the injury.

A plaintiff can sue any individual regardless of the significance

of their responsibility and can recover in full from that

defendant.

Each defendant can recover from other defendants for their

portion of the injury as determined by the jury.

A defendant who pays above their share to a plaintiff can

recover from the other defendants, but only up to the

defendant’s share.

Intentional tortfeasors and defendants who settle cannot seek

contribution from other defendants.

New York’s Contribution Rule

Where there are two or more defendants and a defendant is

50% or less responsible, then that defend ant is only liable for

his or her proportion of noneconomic damages.

Defendant cannot seek contribution from other defendants for

noneconomic harm.

This does not apply to economic harm.

Market-share liability

Arose out of a basic notion that there are policy reasons

justifying the imposition of liability when cause in fact can’t be

proven.

Rule (Sindell)

o Where a significant share of the market can be joined in

the suit, each defendant is responsible for damages

equal to the percentage of their market share.

It doesn’t matter how small your share is, you’ll still be held

liable.

where plaintiffs have no knowledge of which tortfeasor,

among many, directly caused the injury and the defendants

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themselves are unable to prove that they did not cause the

injury.

Elements of Risk Contribution (Thomas)

Functionally interchangeably goods

Physically interchangeable goods

Uniformity of risk

Vicarious Liability General Principle

Masters are vicariously liable for the torts of their servants committed while

the latter are acting within the scope of their employment (respondeat

superior).

Servant – Restatement (Second) of Agency §220

(1) A servant is a person employed to perform services in the affairs of

another and who with respect to the physical conduct in the performance of

the services is subject to the other's control or right to control.

(2) In determining whether one acting for another is a servant or an

independent contractor, the following matters of fact, among others, are

considered:

(a) the extent of control which, by the agreement, the master may

exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct

occupation or business;

(c) the kind of occupation, with reference to whether, in the locality,

the work is usually done under the direction of the employer or by a

specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the

instrumentalities, tools, and the place of work for the person doing the

work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the

employer;

(i) whether or not the parties believe they are creating the relation of

master and servant; and

(j) whether the principal is or is not in business.

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Scope of Employment – Restatement (Second) of Agency §226

(1) To be within the scope of the employment, conduct must be of the same

general nature as that authorized, or incidental to the conduct authorized.

(2) In determining whether or not the conduct, although not authorized, is

nevertheless so similar to or incidental to the conduct authorized as to be

within the scope of employment, the following matters of fact are to be

considered:

(a) whether or not the act is one commonly done by such servants;

(b) the time, place and purpose of the act;

(c) the previous relations between the master and the servant;

(d) the extent to which the business of the master is apportioned

between different servants;

(e) whether or not the act is outside the enterprise of the master or, if

within the enterprise, has not been entrusted to any servant;

(f) whether or not the master has reason to expect that such an act

will be done;

(g) the similarity in quality of the act done to the act authorized;

(h) whether or not the instrumentality by which the harm is done has

been furnished by the master to the servant;

(i) the extent of departure from the normal method of accomplishing

an authorized result; and

(j) whether or not the act is seriously criminal.

o Independent Contractors

Generally, masters are not liable for the negligence of independent

contractors hired.

Exceptions

Employer is negligent in selecting, instructing or supervising

the independent contractor;

The duty of the employer, arising out of some relation to the

public or to the particular plaintiff, is nondelegable; or

The work is specifically, peculiarly, or inherently dangerous.

o “Frolic and Detour”

Phrase often used to describe a type of conduct that falls outside of

the scope of employment.

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Typically arises when an employee is sent out to accomplish an

objective of the employer and along the way, the servant also

runs an error personal in nature.

In determining whether the servant engaged in a frolic and

detour, look at how far off what the servant was doing from

what they were to do as part of the job.

If the servant significantly deviated from the route strictly

necessary to serve the purpose of the master, then the master

is not liable for the servant’s negligence.

Proximate Cause

Defining Proximate Causeo Proximate Cause: A sufficiently close causal connection between the

defendant’s act of negligence and the harm suffered by the plaintiff that it’s

fair to hold the defendant liable for, as a matter of policy.

o Direct Cause Test: Consequences which follow in unbroken sequence,

without an intervening efficient cause, from the original negligent act are

natural and proximate.

o Foreseeability test: Defendant liable only for those consequences of the

negligence which are reasonably foreseeable at the time of the action. The

extent and precise manner in which the harm occurs need not be foreseeable,

just the harm.

o Palsgraf multifactor test for proximate cause:

Natural and continuous sequence between cause and effect,

Directness of the connection between cause and effect, without too

many intervening causes

The effect of the cause on the result is not too attenuated

The result is likely to be produced by the cause

Result is foreseen by exercise of prudent foresight

Too remote from the cause, considering time and space

o Thin Skull Rule: A defendant takes a plaintiff as he finds him and is liable in

damages for aggravation of a preexisting condition.

Intervening Causeso Intervening, superseding causes: subsequent acts of independent third-

parties or forces, which are the immediate cause of the harm, but the original

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negligence of the defendant is also a cause in fact of the harm. Intervening,

superseding causes generally cut off liability of the original negligent actor.

o Watson Rule: Criminal, malicious, or intentional acts are intervening,

superseding causes which cut off the liability of the original negligent

tortfeasor.

o Kush Rule: Where the criminal, malicious, or intentional intervening act is a

natural and foreseeable consequence of a circumstance created by the

defendant, the defendant will be liable.

o Herrera Rule: Where your act of negligence enables a tortfeasor, it is not an

intervening superseding cause where the damaging act is foreseeable.

o Rescue – Wager Rule:

Where it is foreseeable that your negligent act will invite rescue of a

third party, and the plaintiff is injured in the process of that rescue,

you are liable.

You will be liable for creating the dangerous situation from which a

party must be rescued when the rescuer is hurt.

Damages

Torts system endeavors to make a plaintiff whole in relation to damage suffered in a

way that is really unsatisfying. You can’t always make someone whole using

damages. You can’t bring a loved one back to life, you can’t un-break a leg, etc.

Types of Damageso Medical Costs

A plaintiff can recover reasonable medical expenses.

A plaintiff must mitigate damages. They need to take reasonable

harm-reducing measures.

Needs to be done even if there is some sort of religious opposition to

those measures.

o Loss of earnings

Out of pocket

Earnings lost by the plaintiff by the date of trial.

Anticipated

Future costs, set amounts based on potential earnings.

These are paid when they are awarded.

Determined by using

o Basic earning capacity

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o Percentage by which the plaintiff’s earning capacity has

been diminished

o Expected duration of the disability

o Life expectancy of the plaintiff

o Emotional Harm – Negligent infliction of emotional harm

Starting Rule – Waube v. Warrington

An actor whose negligent conduct causes serious emotional

disturbance to another is subject to liability to the other if the

conduct:

o (1) places the other in immediate danger of bodily harm

and the emotional disturbance results from the danger

and

o (2) occurs in the course of specified categories of

activities, undertakings, or relationships in which

negligent conduct is especially likely to cause serious

emotional disturbance.

Factors for NIEH, based on injury to a third party

Dillon v. Legg

o (1) whether the plaintiff was located near the scene of

the accident

o (2) Whether the shock resulted from a direct emotion

impact upon the plaintiff from the contemporaneous

observance of the accident

o (3) Whether plaintiff and the victim were closely related

Thing v. La Chusa

o (1) Close relation to the victim

o (2) present at the scene of the accident and aware that

it is occurring

o (3) suffers emotional distress as a result.

Restatement 47

An actor who negligently causes serious bodily injury to

a third person is subject to liability for serious

emotional disturbance, thereby caused to a person who

(a) perceives the event contemporaneously and (b) is a

close family member of the person suffering the bodily

injury

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Consequential economic harm

Personal Property

Pain and suffering

Defenses

Contributory NegligenceAssumption of the RiskComparative Negligence Immunities

Strict Liability

Alternative Compensation Systems and Limits on Liability

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