Torts Outline Heymann

8/3/2019 Torts Outline Heymann

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Torts Outline Prof. Heymann

Fall 2009

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Table of Contents

Short Outline ............................................................................................................................................ 3

Intentional Torts ....................................................................................................................................... 10Prima Facie Case .......................................................................................................................... 10

Battery .............................................................................................................................. 10

Trespass ............................................................................................................................ 12

Conversion ........................................................................................................................ 13

False Imprisonment ........................................................................................................... 15

Assault .............................................................................................................................. 16

Outrage ............................................................................................................................. 17

Privileges ...................................................................................................................................... 19

Defense of Person and Property ......................................................................................... 19

Private Necessity ............................................................................................................... 21

Public Necessity ................................................................................................................ 22

The Negligence Standard .......................................................................................................................... 22

Duty.............................................................................................................................................. 22

The Reasonable Person ...................................................................................................... 22

Mental Ability and Mental States ........................................................................... 22

Physical Infirmities ................................................................................................ 23

Age ........................................................................................................................ 24

Duties Arising from Affirmative Acts ................................................................................ 25

Duties Arising Undertakings ............................................................................................. 25

Special Relationships ........................................................................................................ 27

Duties Arising from the Occupation of Land ..................................................................... 29

Negligent Infliction of Emotional Distress ......................................................................... 31

Breach .......................................................................................................................................... 34Hand Formula ................................................................................................................... 34

Custom and Medical Malpractice ...................................................................................... 35

Negligence Per Se ............................................................................................................. 37

Res Ipsa Loquitor .............................................................................................................. 38

Causation ...................................................................................................................................... 41


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Cause in Fact ..................................................................................................................... 41

But For Causation .................................................................................................. 41

Alternative Liability ............................................................................................... 42

Market Share Liability ........................................................................................... 42Proximate Cause................................................................................................................ 43

Direct..................................................................................................................... 43

Foreseeability ........................................................................................................ 44

Intervening Causes................................................................................................. 44

Limitations of Liability .......................................................................................... 45

Damages ....................................................................................................................................... 46

Compensatory Damages .................................................................................................... 46

Damages to Property .............................................................................................. 47

Personal Injury/Death ............................................................................................ 47

Pain and Suffering ................................................................................................. 48

Punitive Damages .............................................................................................................. 48

Strict Liability ......................................................................................................................................... 50

Liability for Animals .................................................................................................................... 51

Abnormally Dangerous Activities ................................................................................................ 51

Respondeat Superior .................................................................................................................... 52

Defenses ................................................................................................................................................... 54

Contributory and Comparative Negligence.................................................................................... 55

Express Assumption of Risk ......................................................................................................... 55

Primary and Secondary Assumption of Risk ................................................................................. 57

Primary Assumption of Risk.............................................................................................. 57

Secondary Assumption of the Risk .................................................................................... 58


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Short Outline

I. Intentional Tortsa. Prima Facie Case

i. Battery Intent to cause a harmful or offensive contact or apprehension of imminentcontact

1. Defenses to Batterya. No specific intentb. Consent if you consent to violation of bodily integrity then its not

batteryii. Trespass Intent to Enter anothers land

1. An unintentional and non-negligent entry on land in the possession of another, orcausing a thing or third person to enter the land, does not subject the actor toliability to the possessor

iii. Trespass to chattels Intent to intermeddleiv. Conversion Intent to exercise domain

1. P does not have to exhaust all means possible to gain possession of the items thatwere taken - the simple fact that it is withheld is conversionv. False Imprisonment Intent to Confine

vi. Assault Intent to cause a harmful or offensive contact or apprehension of imminentcontact

vii. Outrage Intent to cause severe emotional distressb. Privileges

i. Defense of Person and Property1. Self Defense the use of reasonable non-deadly force on another who is about to

inflict intentional harm2. Defense of a Third Person the use of reasonable non-deadly force to defend a

third person from a harmful or offensive contact3. Defense of Property the use of reasonable force to prevent the commission of a

tort against their propertyii. Private Necessity a person can commit trespass to a chattel or conversion if the act is or

is reasonably believed to be necessary to prevent injury to himself or his propertyiii. Public Necessity - one can commit trespass to a chattel or a conversion if the act is or is

reasonably believed to be necessary for the purpose of avoiding a public disasterII. Negligence

a. Dutyi. Generally people have a duty of reasonable care and must act as a reasonable man under

like circumstances would

1. Mental Ability and Mental States - D must act as would a person of averagemental ability; individual mental handicaps (eg. Low IQ) are not consideredexcept in regards to the P

2. Physical Infirmities - a person is expected to know their physical handicaps andmust act with reasonable care under the circumstances

3. Agea. Minors a child is generally held to that measure of care that other minors

of like age, experience, capacity and development would ordinarilyexercise under similar circumstances; but a minor can be held to an adult


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standard of care if he is engaging in an activity that is dangerous to othersand is normally engaged in by adults

b. The elderly - an elderly individual is held to the reasonable personstandard; they are not excused from liability because of their age

ii. Affirmative Acts1. A D has no duty to an individual unless he created the risk through his affirmative

acts2. Encouraging or enticing a mentally competent adult into a risky situation is not an

affirmative act and thus does not create a duty of care3. There is no duty to assist in an emergency (when asked) unless there is an

imminent threat of bodily injury and the burden is low (remember you have noduty to help others at the risk of your own safety)

iii. Undertakings1. A D may acquire a duty by undertaking to provide assistance or otherwise

voluntarily assuming responsibilities2. Once an individual undertakes to render services they must do so with reasonable

care; failure to use reasonable care will result in liability3. When you begin to render assistance to an individual, you cant discontinue the

aid and leave the individual in a position worse than they were before youassumed control

iv. Special Relationships1. Duty to assist others - Common Carriers have a duty of care to assist their

passengers and prevent foreseeable injuries that occur while transporting thepassenger to a reasonably safe place

2. Duties to third partiesa. There is no duty of care to warn an individual of danger/threat except in

cases where there is a specific and precise threat from the third party andwhere a relationship exists between the actor and the third party

b. There is a duty to protect an individual from harm of a third party when aD has exclusive control over the premises where an injury occurs

c. The police do not have a duty to protect a specific individual unless theycan prove a special relationship (eg. Police beginning to render aidthrough witness protection); the duty extends to public at large

3. Duties Arising from the Occupation of Landa. Trespassers one who comes onto the land without permission or

privilege;i. Generally no duty, except duty of reasonable care in carrying out

activities risking serious bodily harm forknown trespassers (w/

duty to warn of highly dangerous conditions in some jurisdictions)b. Licensee one who enters on the land with the landowners permission,

express or implied, for her own purpose or business rather than thelandowners benefit; social guests are considered licensees

i. Duty to warn of dangerous hidden conditions of which owner isaware (and licensee is unaware)

ii. Duty of reasonable care in undertaking activitiesiii. No duty to inspect


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c. Invitees one who enters onto the premises in response to an express orimplied invitation of the landowner and includes those who enter ontopremises opened to the public (eg. Museums) and those connected withthe business (eg. Store customers); business visitors are consideredinvitees

i. Duty of reasonable care both as to condition of property and as toactivities

ii. Duty to warn and duty to inspect4. Negligent Infliction of Emotional Distress (NIED) - This is not a separate tort; it

is a way of talking about a type of cases in which the question is whether the Dhad a duty to refrain from carelessly causing the emotional distress; the harm isthe emotional distress in the negligent case; it is at root a negligence case; theremust be a physical manifestation of the mental suffering/injury (eg. Depression oranxiety)

a. Zone of physical danger cases are those in which the P is the direct victimof the negligence (eg. near miss cases)

b. By-stander cases are those in which someone else is the victim of physicalinjury and the P witnessed the injury

b. Breach failure of the D to comply with their dutyi. Hand Formula

B = the burden/cost of taking adequate precautionsP = probability of the harm occurring as a result of untaken precautionL = the gravity of the resulting injury

B>PL = not negligentB


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3. Negligence Per Se when a D violates a statute that creates a standard of care, theviolation establishes the D negligence as a matter of law;the statute has to berelated to the claim

a. Exception to the negligence per se rule - If complying with a statute posesa greater danger to an individual than non-compliance, the individual willnot be found liable for violating the statute

4. Res Ipsa Loquitor used to show breach when a P cant point to a particularaction

a. The thing that happened to the P must be the type of event that ordinarilydoes not occur except through the negligence of someone

b. The instrumentality of the harm suffered by the P must have been w/in theD's exclusive control

c. The harm to the P must not have resulted from any conduct on the part ofthe P

c. Causation Ds breach of duty was the cause of the Ps injuryi. Cause in fact the Ds conduct was the actual cause of the injury

1. But for test But for the Ds negligent act, the injury would not have occurred; Phas the burden to show that the untaken precaution would more likely than not haveprevented the injures (51% threshold)

2. Loss Chance of Survival - when a P has difficulty proving that the Ds conduct wasthe actual cause of the injury, they can use loss chance of survival to argue that Dsconduct decreased their chance to survive and resulted in harm

3. Alternative Liability - if its clear that 2 Ds brought about the negligent situation, bothparties will be held liable; D has the burden of showing that the other defendantcaused the injury

4. Market Share Liability prevalent in defective product cases where there are three ormore Ds; assign liability based on percentage of market share

5. Joint and Several Liability - when it is impossible to tell which D caused part of theinjury, the P can collect the all of the damages from either D; has been replaced withapportionment of damages

ii. Proximate Causation1. Proximate cause isnt a separate cause; it limits the chain of liability2. Direct - D is liable for all consequences that flowed directly from their negligent acts

regardless of whether the consequences were foreseeable3. Foreseeability - D is liable for foreseeable consequences of their negligent acts ; it

does not matter if the consequence is a rare occurrence or if the D did not foresee theextent of the damage

d. Damagesi. Compensatory Damages - P recovers damages to compensate her for the losses

proximately resulting from the Ds tortious act or omission.1. Damage to Property - the damages are measured by the loss in value of the

property or the cost to repair (replace), whichever is less.2. Personal Injury/Death - P is entitled to recover to repair Ps injury or make him as

whole as may be done by an award of money can factor in the following:a. Medical expenses


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b. Loss of consortium/society loss of companionship as a result of adecedents death

c. Lost earnings and earning capacity (subtract taxes but add benefits)i. Factors to be considered:

1. Occupation/Education2. Health/Age3. Dependents

3. Pain and Suffering Awards - P may be able to use an award of general damages toprovide activities or enjoyments that substitute for those lost as a result of theinjury

ii. Punitive Damages - serve as a punishment to deter a D and other parties from committinga similar tort in the future

1. Punitive damages can be awarded against an employer for the conduct of anemployee if but only if:

a. The employer authorized the conduct and the manger of the conduct orb. The employee was unfit and the employer was reckless in employing him

orc. The employee was employed in a managerial capacity and was acting in

the scope of his employment ord. The employer ratified or approved the act

III. Strict Liability - focuses on activities where we say the nature of the activity is such that we want theD to pay whether they're at fault at not.a. Liability for Animals

i. A person who keeps an animal with knowledge (scienter retinuit) of its tendency to doharm is strictly liable for the damage that occurs if it escapes; person has an absolute dutyto confine or control the animal to prevent injury and liability will result for failure tocontrol

ii. Animals that are ferae naturae are animals that are by nature harmful or have not beentamed and domesticated; they are presumed to have a tendency to do harm and scienterdoesn't have to be proved

iii. Animals that are mansuetae naturae are presumed to be harmless until they manifest asavage or vicious propensity; proof of this manifestation is necessary to determineliability (usually based on animals prior bad acts)

b. Abnormally Dangerous Activities - In determining whether an activity is abnormally dangerous,the following factors are to be considered:

1. Existence of a high degree of risk of some harm to the person, land or chattels ofothers;

2. Likelihood that the harm that results from it will be great;3. Inability to eliminate the risk by the exercise of reasonable care;4. Extent to which the activity is not a matter of common usage5. Inappropriateness of the activity to the place where it is carried on; and6. Extent to which its value to the community is outweighed by its dangerous

attributesc. Respondeat Superior - holds an employer strictly liable for the torts committed by their

employees in the course of their work (aka scope of employment)


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i. Who is an employee? - If the one securing a service (ie the company) controls the meansby which the task is accomplished, then the one performing the service is an employee; ifnot, then they are an independent contractor

ii. Frolic and Detour1. Frolic the employee pursues personal business and this qualifies as a substantial

deviation from or abandonment of the employment2. Detour employees deviation is still sufficiently related to the employment to

fall within the scope of employmentiii. Commuting to Work - in general, employers arent responsible for torts committed while

an employee is commuting to work1. Exception when the employers conduct creates an extra risk to the public

which will manifest itself during the commute (eg. Drinking)IV. Defenses

a. Contributory and Comparative Negligencei. Contributory Negligence - D argues that the P failed to take reasonable care in their own

safety; this defense if proven, is a complete bar to recovery regardless if D is shown tohave some liability

1. Last Clear Chance doctrine - a P could recover despite committing contributorynegligence if the D had a sufficiently good opportunity to avoid the accident at apoint when the P did not

ii. Comparative Negligence1. Pure Comparative Negligence - reduces the P's damages by the percentage of

negligence; permits recovery even if Ps fault is greater than D2. Modified Comparative Negligence - P's recover based on the percentage if:

a. Ps negligence does not exceed the Ds (50% or more) orb. Ps negligence is less than the D's (49% or less)

3. If a P has engaged in unlawful conduct, courts will not entertain suit if Psconduct constitutes a serious violation of the law and the injuries for which Pseeks recovery are the direct result of that violation

b. Express Assumption of Riski. Express Assumption of Risk P explicitly agrees to assume the risk of injury and frees D

of liabilityii. Questions to ask:

1. Did the P understand what they were agreeing to?2. Even if they did, should the contract not be enforced because of policy reasons?

iii. To enforce the contract there must be:1. Exculpatory Clauses2. Equal bargaining power

iv. Waivers of liability are unenforceable if they involve public interestsc. Primary and Secondary Assumption of Risk

i. Primary Assumption of Risk - D had no duty to protect the P from the harm sufferedbecause the risk of it was inherent in an activity that the P chose to undertake; theinherent activity entails certain risks that P is aware of and decides to ignore

1. Determination of liability depends on the following:a. The openness of the risk is it hidden or misrepresentedb. the voluntariness of the Ps participation in the activity in question


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c. the reasonableness of the risks posed by the activity in light of its benefitsii. Secondary Assumption of Risk - D had a duty to P because the risk was not inherent in

the activity but P knowingly and voluntarily chose to encounter the risk (eg. Need to getto the hospital during an emergency and volunteer to get in a car with a drunk driver)


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I. Intentional TortsA. The Prima Facie Case

i. Battery1. Elements of Battery

a. An actor is subject to liability to another for battery if:i. He acts intendingto cause a harmfuloroffensive contact with the

person of the other or a third,and

ii. A harmfuloroffensive contact with the person of the other directlyor indirectly results.

2. Intenta. Concerned about the intent to cause contact, not necessarily the intent to cause

harm/leaving a mark

i. Egg-shell doctrine: the idea that you are liable for damages thatdirectly result from your actions, even if the extent of the damages isunanticipated

i. White v. UniversityofIdaho (piano teacher student touchedlike keyboard)(L): D intended contact but did not intend theextent of such harm

b. Transferred Intent: When A intends to commit a battery against B butmistakenly hits C instead, A can be liable to C

i. Manning v. Grimsley (pitcher threw ball at hecklers and hit a thirdparty)(L): in this case, the tort was assault, but the pitchers intent tohit the hecklers and instead hitting a third party is a prime example

ii. Keel v. Hamline3. Harmful or Offensive Contact

a. Concerned with whether there has been a violation of the Ps bodily integrity;a mark doesnt have to be left behind for a contact be harmful or offensive

i. Leichtman v.WLW Jacor Communications (DJ blows smoke intosomeones face)(L):Smoke contains particulate matter (some part of itis physical) so it is battery; also if someone tries to argue that it is notphysical you could respond saying harm is about violation of bodily

integrity and blowing smokes violates

b. Contact extends not only to the individuals body but also includes anything incontact with the individual such as clothing, packages held by individual thatare snatched in a rude or insolent manner

i. Morgan v.Loyacomo - (manager chases suspected shoplifter andsnatches bag)(L)


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c. Contact is offensive if it would offend a reasonable persons sense of dignitybut some contact, although unwanted by the individual is reasonable undercertain circumstances (eg. Walking down a crowded street and being tappedon the shoulder)

i. Wallace v. Rosen (mother pushed down stairs during fire drill byteacher)(NL)4. Defenses to Battery

a. No specific intenti. Madden v. D.C. Transit System, Inc. (buses spewing

emissions)(NL): D cannot be held liable since the contact is notdirected at anyone in particular

b. Consent if you consent to violation of bodily integrity then its not batteryi. Implied Consent Considering the surroundings and circumstances,

an individuals participation in certain conduct signifies consent

i. Knight v. Jewett (boy steps on girls hand during touchfootball)(NL): D did not intend the contact but injury duringthe game can be reasonably foreseen thus a personswillingness to participate in such an activity implies that theyare willing to take the risk of injury

ii. Vosburg v. Putney (kid kicks classmate)(L): a classroom isa location where one would not expect to be kicked in the shin,thus there is not an implied consent to the kick

iii.Keel v. Hainline (kids throwing eraser back and forth inclassroom mistakenly hits third party)(L): D did not intendcontact but the conduct was unlawful and it occurred in aclassroom where there is no implied license

ii. Express Consent An individual communicates their consent forcontact to another

i. If you make your preference known, then doctor should abideby preference

a. Cohen v. Smith (woman asks for no man to see hernaked but a man sees her)(L): D violated her consent

ii. Consent for contact granted to a particular individual cannot betransferred to another w/o the patients approvala. Grabowski v. Quigley (gave consent to one doctor

but another did surgery)(L): Ps right to choosephysician was taken away while he was unconscious

iii. A D cannot be liable for violating consent if they act within thescope of consent given


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a. Brzoska v. Olson (dentist w/ AIDS)(NL)iv. Informed Consent

a. In an emergency situation, a patients prior consent fora type of contact can be dismissed if it was not aninformed consent

i. Werth v. Taylor (Jehovahs witness refusedblood transfusion before her life becameendangered)(NL): patients prior refusal toblood transfusion was based on the idea that thiswas routine surgery and that her life would notbe in danger; the situation changed and herprior refusals were not decided based on thisnew information - it was not an informedconsent

ii. Trespass1. Elements of Trespass (Rest. 158, pg. 32)

a. One is subject to liability to another for trespass, irrespective of whether hethereby causes harm to any legally protected interest of the other, if heintentionally

i. Entersland inthe possessionoftheother, or causes a thing or thirdperson to do so,

ii. Remains on the land, oriii. Fails to remove from the land a thing which he is under a duty to

remove.

2. Consent to entry is given legal effect even though the entrant is gaining it undermisrepresentation or omission and if the real intent is known would provide reasonsfor owner to revoke his consent

i. Desnick v.AmericanBroadcasting Companies, Inc. - (reporters goundercover in eye care center)(NL): Policy arguments for rule

i. It is helpful to society (ie food critics and anti-discriminationresearch)

ii. It is not so invasive that it infringes on the kind of interest thelaw of trespass protects (no public disturbance, videotapedcommunications were professional - not personal, the reportersdid not invade private space

iii. The trespass does not interfere in the ownership or possessionof land

3. Non-liability for Accidental intrusions (Rest. 166, pg. 34)


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a. An unintentional and non-negligent entry on land in the possession of another,or causing a thing or third person to enter the land, does not subject the actorto liability to the possessor

b. Maloufv. DallasAthletic Country Club (golfers hit balls that enter Psproperty and damage cars)(NL): the golfers intended to hit the ball into thehole on the golf course; they didnotintend for the ball to stray from the golfcourse property; w/o the proper intent, they are not liable

i. Hypo 1: Let's assume that the property owner has a laundry line that isobscured by trees but you can see it from the golf course. It is a pieceof laundry (red T-shirt) flapping away in the breeze. Thinking it's theflag for the hole you hit the ball which hits the car. Is this trespass?golfer still intends to hit the ball and enter in the land so it's trespass;even if they are mistaken as to who owns the land it doesn't matterbecause they intended to enter the land

ii. Hypo 2: same facts as above but the ball smacks into a gas tank on P'sproperty, the tank explodes and the entire house burns down. Whatdamages is the golfer liable in trespass? the gravity of the resultsdoesn't change the basic facts; he is still liable (similar to Vosburg andegg-shell house)

c. Pegg v. Gray- (man permit dogs to follow foxes onto neighbors property)(L)Normally a dog owner is not responsible for damages for its entry uponsomeone else's property since the dog does so of its own volition. In the caseof fox hunting, if a dog is released and the owner has knowledge that the dogis likely to go onto someone else's land in pursuit of the fox and the dogowner does not get permission to onto the land beforehand, the dog owner is

liable for trespass; he intentionally let the dog roam onto the property

iii. Trespass to Chattels and Conversion1. Trespass to Chattels (D pay for damages; mild version)

a. Ways of Committing Trespass to Chattel (Rest. 217, pg. 42)i. A trespass to a chattel may be committed by intentionally

i. Dispossessing another of the chattel, orii. Using or intermeddling with a chattel in the possession of

another

b. Elements to trespass of chattels (Rest. 218, pg. 42)i. One who commits a trespass to a chattel is subject to liability to the

possessor of the chattel if, but only if,

i. He dispossesses the other of the chattel, orii. The chattel is impaired as to its condition, quality, or value, oriii. The possessor is deprived of the use of the chattel for a

substantial time, or


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iv. Bodily harm is caused to the possessor, or harm is caused tosome person or thing in which the possessor has a legallyprotected interest

2. Conversion (D pay for full value; strong version)a. Elements of Conversion (Rest. 222A, pg. 42)

i. Conversion is an intentionalexerciseofdominionor controloverachattel which so SERIOUSLY interfereswith therightofanotherto control it thattheactormay justlyberequiredto paytheotherthefull valueofthe chattel.

ii. In determining the seriousness of the interference and the justice ofrequiring the actor to pay the full value, the following factors areimportant:

i. The extent and duration of the actors exercise of dominion orcontrol;

ii. The actors intent to assert a right in fact inconsistent with theothers right of control;

iii. The actors good faith;iv. The extent and duration of the resulting interference with the

others right of control;

v. The harm done to the chattel;vi. The inconvenience and expense caused to the other

b. P does not have to exhaust all means possible to gain possession of the itemsthat were taken - the simple fact that it is withheld is conversion

i. Russell-Vaughn Ford, Inc. v. Rouse (car salesman intentionallytook keys and refused to return them)(L): Yes, Rouse could havecalled his wife to get the spare key but he shouldnt have to

c. If a person acts outside of the scope of the contract (permitting the use of theitem) then they will be held liable regardless of whether the damage was theresult of an accident or negligence

i. Palmer v.Mayo (Mayo rented horse and carriage from Palmer;Mayo lent carriage to Scott and Cook; Scott and Cook get intoaccident and wreck carriage and kill horse; Palmer sues Cook)(L): Itdoesnt matter if the injury was an accident or not, Cook did notreceive permission from Palmer to use the horse and carriage and theinjury interfered w/ the owners right; Note: conversion happenedwhen Cook took the carriage

ii. Spooner v.Manchester (man borrows horse and gets lost on theway home; tries to find right path but horse injured)(NL): D wasintending to return the horse as outlined in his contract; the steps hetook was with the intent to return the horse as promised


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i. Hypo: A guy leaves his pickup truck in a parking lot and animposter calls towing business saying he's owner and asked fortowing place to tow it to mechanic. Driver takes the truck andtows it to shop. It's later stolen from the shop by a third party.Owner of truck sues towing company.

a. P argument - tow company intentionally took the truckand exerted control over it; the tow interfered w/owners use

b. D argument - I was acting in good faith that you askedme to move the truck

c. Despite D's lack of knowledge of ownership, he stillintentionally moved something that did not belong tohim

d. The fact that someone stole the truck from the lot doesnot have relevance to the conversion and the driver'sactions

e. The results of this case can be a deterrent because thedriver, seeing they can be blamed, could later enactsome type of verification procedure

iv. False Imprisonment1. Elements of False Imprisonment (Rest. 35, pg. 56)

a. An actor is subject to liability to another for false imprisonment ifi. He acts intending to confine the other or a third person within

boundaries fixed by the actor, and

ii. His act directly or indirectly results in such a confinement of the other,and

iii. The other is conscious of the confinement or is harmed by itb. An act which is not done with the intention stated in Subsection (a)(i) does not

make the actor liable to the other for a merely transitory or otherwise harmlessconfinement, although the act involves an unreasonable risk of imposing itand therefore would be negligent or reckless if the risk threatened bodilyharm.

2. What constitutes confinementa. To make the actor liable for false imprisonment, the others confinement

within the boundaries fixed by the actor must be complete

b. The confinement is complete although there is reasonable means of escape,unless the other knows of it


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c. The actor does not become liable for false imprisonment by intentionallypreventing another from going in a particular direction in which he has a rightor privilege to go

3. Intent to Confinea. Hypo: Runaway Bride A woman gets cold feet and places a call that she's

been abducted and provides a description of the abductor. The cops pick up aman based on the description. Is she guilty of false imprisonment? althoughshe is not doing the actual confinement, it was not directed at a particularindividual so this may lack intent

b. Hypo: Bride decides to file a report saying her fianc assaulted her and thepolice arrest. Is she guilty of false imprisonment? since her actions weredirected at her fianc, she is providing information w/ the intent to confine

4. Legal authority to imprisona.

A D is liable for false imprisonment even if D believed they had the legalauthority to imprison the P

i. Bright v.Ailshie (bounty hunter arrested the wrong brother)(L): thisis false imprisonment because the bounty hunter intentionally arrestedthe wrong brother and brother was aware of the confinement; mistakenidentity is not a defense to false imprisonment

b. A third party can be held liable for false imprisonment if theypersuade/encourage the police or some other authority to arrest the individual

i. Baggett v. NationalBank & Trust Co. (bank customer useddeposit slip that claimed this is a stek up and was arrested)(NL): The

decision to arrest was made solely by the police w/o a request from thebank that he be detained or held

ii. Melton v.LaCalamito (U-haul manager demanded the return ofmoving pads that did not belong to U-haul)(L): the manager continuedto insist over a long out period of time that the pads were U-hauls thusleaving the police w/ no choice but to arrest

v. Assault1. Elements of Assault (Rest. 21, pg. 65)

a. An actor is subject to liability to another for assault ifi. He acts intendingto causea harmfuloroffensive contact with theperson of the other or a third person,oran imminentapprehension

ofsuch a contact, and

ii. The other is thereby put in such imminent apprehension.b. An action which is not done with the intention stated in Subsection (a)(i) does

not make the actor liable to the other for an apprehension caused therebyalthough the act involves an unreasonable risk of causing it and, therefore,would be negligent or reckless if the risk threatened bodily harm.


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2. Similarities and Differences b/t Assault and Batterya. With assault we're focusing on inviability of mental state (when a ball is

thrown at you, it is assault until it makes contact; upon contact it is battery)

b. Both have question of whether there was an intentional/volitional actc. The result in battery was violation of bodily integrity; in assault it is violation

of mental integrity

3. Remember apprehension is not the equivalent of fear, its anticipation4. Intent Requirement

a. Act can prove intenti. Bennight v.WesternAuto Supply Co. (employee is attacked by

bats in a warehouse, the next day her manger forces her to go intowarehouse again and she is bitten)(L): Act provides the intent Manager required her to work in there knowing that she was alreadyattacked once and knowing that the possibility of being bitten existed;apprehension is bolstered by the fact that she was already attackedonce

ii. Langford v. Shu (mother aided and abetted her children in playing aprank on a woman who was injured in flight)(L): Boys are going to beboys and try to pull pranks but as an adult you should have knownbetter; this applies to the general rule of assault, she knew the womanwould be afraid and she still did it anyway

5. Imminent Threat of Harma. Verbalized threat alone is not enough to be considered an imminent threat ofharm

i. Brower v.Ackerley (brothers threaten politician over billboarddispute)(NL): As a policy matter you wouldnt want to punish thebrothers because people say things in the heat of the moment and itwould be a waste of resources to arrest people who just trash talk

ii. Tuberville v. Savage (swordsman declares that he wont hurt manbecause ct. is in session)(NL): swordsmans statement shows that therewas no imminent threat since he would restrain himself CANT SUEFOR ASSAULT WHEN THE ACT IS DISCLAIMED

vi. Outrage/Intentional Infliction of Emotional Distress (IIED)1. Elements of Outrage (Rest. 46, pg. 71)

a. One who by extremeandoutrageous conduct intentionallyorrecklesslycausessevereemotionaldistress to another is subject to liability for suchemotional distress, and if bodily harm to the other results from it, for suchbodily harm


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b. Where such conduct is directed at a third person, the actor is subject toliability if he intentionally or recklessly causes severe emotional distress

i. To a member of such person's immediate family who is presentatthetime, whether or not such distress results in bodily harm, or

ii. To any other person who is presentatthetime, if such distress resultsin bodily harm

2. For a while people were afraid of giving validity to the tort for the following reasons(possible policy implications):

a. It was difficult to proveb. A lot of people would claim IIED which would bog down the cts. And result

in inefficiency

c. There are some duties that result in IIED that are legit (ex. Bill collecting)3. Outrage is a community based standard which must take into account the statement

and the attendant circumstances

a. Pros provides flexibility when neededb. Cons wishy-washy; could be influenced by prejudice or biasc. Roberts v. Saylor (doctor tells woman he doesnt like her before she goes

into surgery; woman tried to get him to testify against other doctors)(NL): Ct.held that given their negative prior history, the doctor was just letting off somesteam; civilized society would not deem the doctors behavior has sooutrageous that it is intolerable

d. Greer v.Medders (doctor screams at his patient (who is lying in thehospital bed) and patients wife after they called his office looking forhim)(L): the patient was lying in the hospital bed, recovering from surgery sothe doctor should have taken better care; this conduct would be in intolerableto a civilized society

4. If a D knows that P is sensitive and thus more susceptible to emotional distress thenthey can be held liable

a. When a D is sensitive, the conduct, which may not be extreme and outrageousin one situation, would be extreme and outrageous in another situation; egg-shell theory

b. Muratore v.M/S Scotia Prince (photographers in gorilla suits try takepictures of woman on cruise and when she refuses, they harass her for theremainder of the trip)(L): D knew she had a sensitivity to pictures andcontinued to harass her and make lewd comments; the degree of their conductwas outrageous

5. The ct. can consider the personality of the individual to whom the conduct is directeda. Pemberton v.Bethlehem Steel Corp. (PI hired by D sent photos from an

affair to Ps wife and circulated mug shots to the employees in his


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union)(NL): the sending of truthful information is not considered outrageousor extreme

B. Privilegesi. Defense of Person and Property

1. Comes up when P has made the prima facie case and the D is claiming a privilegethat excuses the tort

2. Defense of Persona. Self-Defense

i. An actor is privileged to usereasonableforce,not intendedorlikelyto causedeath orseriousbodily harm, to defend himselfagainstunprivileged harmful or offensive contact or other bodily harm whichhe reasonably believes that another is aboutto inflict intentionallyupon him.

ii. There is a subjective component (D must believe they are under threat)and objective (D must have reasonable response)

iii. Qualifications to self-defense (Rest. 63, pg. 95)i. Actor's dutyto avoid force - The actor must cannot reasonably

believe that the use of force is necessary until he has exhaustedall other reasonably safe means of preventing the other frominflicting bodily harm

ii. Actor's dutytoretreat- The actor, if he reasonably believesthat he is threatened with the intentional imposition of bodily

harm, or even of an offensive contact, may stand his groundand repel the attack by the use of reasonable force, which doesnot threaten serious harm or death, even though he might withabsolute certainty of safety avoid the threatened bodily harm oroffensive contact by retreating

iii.Standingone's groundin his dwelling place - One attacked inhis dwelling place may await his assailant and use deadly forceto repel him though he could prevent the assailant from theattacking him by closing the door and so excluding theassailant from the premises. But the mere fact that a man isthreatened with an attack while he is within his own dwelling

place does not justify him in using deadly weapons if he canavoid the necessity of so doing by an alternative other thanflight or standing a siege. A man can no more justify usingdeadly weapons when he is in his own home than he can whenhe is upon a public highway, if he can avoid the necessity ofdoing so by complying with a demand, other than a demandthat he shall retreat, give up the possession of his dwelling or


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permit an intrusion into, it, or abandon an attempt to make alawful arrest.

b. If, in the course of defending himself, an individual accidentally injures a thirdparty then the individual can be by protected self-defense in an intentional tort

(mind you they can be liable for negligence)

i. Crabtree v. Dawson - (bouncer at club, mistakenly hits a bystanderwho he believed was going to attack him)(NL): D used reasonablecare to repel the threat and honestly believed P was an attacker

c. Defense of a Third Person (Rest. 76, pg. 96)i. The actor is privileged to defend a third person from a harmful or

offensive contact or other invasion of his interests of personality underthe same conditions and by the same means as those under and bywhich he is privileged to defend himself if the actor correctly orreasonably believes that

i. The circumstances are such as to give the third person aprivilege of self-defense, and

ii. His intervention is necessary for the protection of the thirdperson

3. Defense of Propertya. Generally, one may use reasonable force to prevent the commission of a tort

against their property

i. Katko v.Briney - (D used a spring gun to protect property afterrepeated break-ins)(L): the use of a spring gun which cant be

controlled was unreasonable and would likely cause death and harm;an individual cannot use such deadly force to protect property

ii. Woodbridge v.Marks (watchdogs attack a man who strayed frompath)(NL): watchdogs are a means of reasonable force to repel thethreat; owner took the proper steps by keeping the dogs away frompathways and the residence; their confinement would only affecttrespassers because trespassers (in an attempt to stay hidden) wouldnot use the paths

b. Hypo:i. Man constantly yells at kids to get off of his lawn; he gets a gun and

shoots in the air; the bullet comes down and hits a kid there is batterybut can't claim self-defense because it was deadly force, also howmuch of a threat can a kid be

ii. Same guy is defending himself against an armed robber and he firesbut the bullet goes out the window and hits someone on the street privileged to defend himself against robber; absent privilege therewould be transferred intent to the unintended victim; robber could be


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charged w/ assault towards the homeowner and then can transfer intentfor the injury to the bystander

4. If D is committing a felony against the P and D injures P, D can argue self-defensea. Wright v. Haffke (grocery store owner shoots thief in the back, as thief

tries to escape after robbing store)(NL): the use of a firearm is not justified inminor thefts and can only be used in more serious felonies such as robberies

ii. Private Necessity1. Any person is privileged to commit an act which would otherwise be a trespass to a

chattel or conversion if the act is or is reasonably believed to be necessary to preventinjury to himself or his property

a. Ploofv. Putnam (family tries to moor ship to escape storm; servantunmoors the vessel and the family is injured/vessel destroyed)(L): Thedoctrine of necessity applies especially in circumstances where there is a

danger to human life so the servant cant argue that mooring the ship is atrespass

b. Rossi v. DelDuca - (girl runs onto mans property to escape dog; ends upbeing attacked by the dogs on the property)(NL): P's pursuit by the first doggranted her the privilege of entering the land (relieving her from liability oftrespass) since P was attempting to escape injury and destroys the D'simmunity from liability in resisting the intrusion

2. Private necessity can also apply in situations that are not drastically dangeroussituations

a. TexasMidland Ry. Co. v. Geraldon (RR agent puts family out in the raineven though they said the rain would make the wife sick)(L): Agentsknowledge of wifes susceptibility to illness and the fact that the rain wouldaggravate it, was a threat to her health; family had a privilege to stay on thepremises to ensure that she would not suffer an illness/injury

3. Even though D has the right to trespass or convert, they must compensate the P forthe actual damage to the Ps property

a. Vincent v.LakeErie Transportation Co. (steamship damages dock whenmoored in a storm)(L): The D choose to preserve the ship at the expense ofthe dock and has to pay

4. Concerns regarding Private Necessitya. Even though people can encroach on private property in cases where there is

an imminent threat the defense cant be used when it threatens law and order policy implication

i. LondonBorough ofSouthwark v.Williams (homeless familybecome squatters)(L): if the ct. permitted homelessness to count asprivate necessity and use it as a defense to squatting then others whoimagined they were in need or invented the need would try to gain


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entry which would be a threat to law and order; also homelessness maynot be viewed as an imminent threat since it is a chronic condition

iii. Public Necessity1. One is privileged to commit an act which would otherwise be a trespass to a chattel or

a conversion if the act is or is reasonably believed to be necessary for the purpose ofavoiding a public disaster

2. Government does not have to pay for the damages3. Surroco v. Geary (mayor orders destruction of a house to stop a fire that was

raging through the city)(NL): the government has a right to take the necessary step toprevent the fire from spreading

II. The Negligence StandardA. Elements of Negligence

i. Duty requires the D to conduct himself according to certain standards, so as to avoidunreasonable risk to others

ii. Breach failure of the D to comply with their dutyiii. Causation Ds breach of duty was the cause of the Ps injuryiv. Damages

B. Duties and Limitationsi. The existence of a duty between parties is a question of law and must be decided by a judge,

not a jury

ii. People do not start out with duties to one another; a duty must be established before liabilitycan arise

iii. General Duty of Care The Reasonable Person1. When a person engages in an activity he is under a legal duty to act as an ordinary,

prudent, reasonable person and it is presumed that an ordinary, prudent andreasonable person would take precautions against creating unreasonable risks

2. There is no duty of care for a person to take precautions against events that cantreasonably be foreseen

3. The Reasonable Person Standard (Rest. 283, pg. 122)a. Unless the actor is a child, the standard of conduct to which he must conform

to avoid being negligent is that ofareasonablemanunderlikecircumstances

b. Note: Reasonable is not the same thing as rational4. Mental Ability and Mental States

a. D must act as would a person of average mental ability; individual mentalhandicaps (eg. Low IQ) are not considered


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i. Williams v. Hays (ship captain refused two tugboats aid duringstorm)(NL): Epitome of the Reasonable person standard Ct. statedthat D was bound to exercise reasonable care and prudence to save theship and D went beyond what was reasonable and prudent by stayingup for 48 hrs. to save the ship and the captain cant be expected to domore; the ct. held that the D acted as a reasonable under thecircumstances

ii. Vaughan v.Menlove (man has a haystack and despite neighborswarning of the fire hazard, sets a fire nearby)(L): man tried to arguethat he should not be held liable because he isnt a very smart person;Ct. holds that they cant consider the mental state of every individualbecause it is too broad and a clear standard cant be created under thatideal; reasonable man standard is still best

b. The mental capacity of the P can be taken into accounti. Lynch v. Rosenthal (mentally retarded mans arm was caught in acorn picker)(L): D tried to argue that P was contributorily negligent

but Ps mental retardation prevented him from understanding thedangers so he will not learn to take greater care; the only way toprevent injury would be for him to stay inside the house which is notan optimal result; he acted reasonably for his mental circumstances

ii. Oliver Wendell Holmes stated that when a man has a distinct defect ofsuch a nature that all can recognize it as making certain precautionsimpossible, he will not be held answerable for taking them

c. D is deemed to have knowledge of things known by the average member ofthe community; the individual shortcomings of the particular D is notconsidered

i. Weirs v. Jones County (man who could not read English, did notunderstand the Bridge unsafe sign and drove over the bridge)(NL):D should have been literate in English to avoid the bridge; the averagemember of the community can read English and could have avoidedthe bridge

ii. Friedman v. State (orthodox Jewish girl jumps from ski lift so shewouldnt violate the Jichud)(L): The fear of spending the night with aman on a chair lift w/o means of rescue would be justifiable to anaverage member of her community

5. Physical Infirmitiesa. A person is expected to know their physical handicaps and must act with

reasonable care under the circumstances

i. Kerr v. Connecticut Co. (deaf man walks along trolley tracks; canthear the warning gong and is struck by the trolley)(NL): a deaf person,who cant hear the warning gong, should have known better than to


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walk along the tracks; they should have taken reasonable care bykeeping a safe distance from the tracks

ii. Davies v. Feinstein (blind man used a cane and the felt the walls ashe walked down the sidewalk; he fell through an open cellar door)(L):

the blind man took the reasonable care by attempting to compensatefor the blindness through aids

6. Agea. A child is generally held to that measure of care that other minors of like age,

experience, capacity and development would ordinarily exercise under similarcircumstances

i. Dunn v. Teti (6 yr. old swung a stick at another 6 yr. old)(NL): Ct.provided the following guidelines:

i. Minors under the age of 7 yr conclusively presumed incapableof negligence

ii. Minors b/t the ages of 7 and 14 are presumed incapable ofnegligence, but that presumption is a rebuttable one thatweakens as the 14th year is approached

iii. Minors over the age of 14 yrs are presumptively capable ofnegligence, with the BOP on the minor to prove incapacity

b. But a minor can be held to an adult standard of care if he is engaging in anactivity that is dangerous to others and is normally engaged in by adults

i. Purtle v. Shelton (17 yr old. was in the woods hunting deer w/ his16 yr old friend and accidentally shot him)(NL): It's hard to determine

whether deer hunting is an activity normally done by adults becauseminors do hunt (a minor under the age of 16 can hunt lawfully w/o alicense); In this case, the deer hunting does not satisfy bothrequirements

ii. Dellwo v. Pearson (12 yr. old boy ran across mans fishing line withhis powerboat; fishing rod to broke and a piece of the reel flew into P'seyes causing injuries)(L): driving a motorboat is a dangerous activitybecause of the catastrophic results that can occur and it is an activitynormally completed by an adult

i. Ct. states that there is a policy implication: It would be unfairto the public to hold a minor to a lesser standard when theminor is operating a motor vehicle; the public cant determineif a minor is driving a car, plane or boat and thus can't take thenecessary precautions even if warned

c. An elderly individual is held to the reasonable person standard; they are notexcused from liability because of their age

i. Roberts v. Ring (77 yr. old man who has poor sight and hearing hitsa 7 yr. old boy)(NL): Ct. held that the mans physical infirmity due to


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age does not preclude him from liability; an adult of any age, wouldhave taken reasonable care by staying off the road

iv. Duties Arising from Affirmative Acts1. The law generally imposes a duty of care on people when they engage in affirmative

acts which can create risks for others (misfeasance)

2. The law generally does not impose a duty of care on people when they fail to takeaction to rescue; there is normally no duty to rescue others at the risk of endangeringyour own safety (nonfeasance)

3. Encouraging or enticing a mentally competent adult into a risky situation does notcreate a duty of care

a. Yania v.Bigan (man jumped into Ds water filled ditch and drowned)(NL):As a mentally competent adult the decedent had the ability to infer from theheight of the wall and the murkiness of the water that jumping into the ditch

was a bad idea; instead the decedent decided to take on the risk andvolunteered to jump so the D should not be liable

4. A D has no duty to an individual unless he created the risk through his affirmativeacts

a. Weirum v. RKO General, Inc. (Real Don Steele holds contest wherelisteners have to be the first to reach him and answer a question correctly towin a prize; kids speed to get to him and kill someone)(L): D should havereasonably foreseen that the DJs primary listeners who are kids would havesped throughout to town to get to him and thus endanger others on the road

5. There is no duty to assist in an emergency (when asked) unless there is an imminentthreat of bodily injury and the burden is low (remember you have no duty to helpothers at the risk of your own safety)

a. A phone in a public area creates a reliance factor and expectationb. Soldano v. ODaniels (bartender refuses to permit patron to use the

telephone to call for help)(L): the phone was in a public part of the buildingand the patron should have been allowed to use it; it would not have put thebartender at risk to use the phone; the threat

c. Stangle v. Firemans Fund Insurance Co. (ring was stolen from womenwhen trying to sell it; receptionist refused to let her use the phone)(NL): thetheft a ring is not an imminent threat of bodily harm thus the receptionist was

under no duty to allow P with the use of the phone

v. Duties Arising from Undertakings1. Sometimes a D who had no duty to a stranger may acquire a duty by undertaking to

provide assistance or otherwise voluntarily assuming responsibilities

2. Negligent Performance of Undertaking to Render Services aka Good SamaritanDoctrine (Rest. 323, pg. 231)


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a. One who undertakes, gratuitously or for consideration, to render services toanother which he should recognize as necessary for the protection of theother's person or things, is subject to liability to the other for physical harmresulting from his failure to exercise reasonable care to perform hisundertaking, if

i. His failure to exercise such care increases the risk of such harm, orii. The harm is suffered because of the other's reliance upon the

undertaking

3. Duty of one who takes charge of another who is helpless (Rest. 324, pg. 231)a. One who, being under no duty to do so, takes charge of another who is

helpless adequately to aid or protect himself is subject to liability to the otherfor any bodily harm by (a) the failure of the actor to exercise reasonable careto secure the safety of the other while within the actor's charge, or (b) theactor's discontinuing his aid or protection, if by so doing he leaves the other in

a worse position than when the actor took charge of him.

4. When a physician begins to hear the symptoms of a patient this signals thephysicians undertaking to render the service of medical aid and a duty is created

a. Hurley v.Eddingfield (woman sends messenger for medical help; doctorrefuses to go see her even though no one else was available)(NL): he had notseen the patient and the messenger did not relay symptoms so there was noundertaking

b. ONeill v.Montefiore Hospital (man at hospital relays symptoms to doctorover the phone and was told to go home and return the next day)(L): relayingthe symptoms signaled an undertaking; once you begin to render aid you haveto follow through and you cant pull out

5. Once an individual undertakes to render services they must do so with reasonablecare; failure to use reasonable care will result in liability

a. United States v.Lawter (inexperienced Coast Guard crew member triedsaving a woman during a storm)(L): the crew undertook the service of savingthe woman and failed to use the reasonable care of putting an experiencedcrew member on the sling

b. Frank v. United States (crew tugs boat and a man on the boat falls intoocean and drowns)(NL): the crew originally undertook the service of tugging

the boat and thus came equipped for that purpose; they only had the properequipment for the tow and they tried to use reasonable care (given thecircumstances) to save the man

6. When you begin to render assistance to an individual, you cant discontinue the aidand leave the individual in a position worse than they were before you assumedcontrol

a. OctillowWest JointVenture v. Superior Ct. (Man tells golf course thathe will drive his drunk friend home and once they leave sight of the


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employees allows the drunk friend to drive; drunk friend dies in a crash;family sues golf course)(NL): the man assumed control by offering to drivethe drunk friend home and deterred the employees efforts to prevent drunkfriend from driving; his interference put the drunk friend in a worse positionthan when the employees had the keys

b. Cuppy v.Bunch (After drinking during a fishing trip man tells his friend,who claimed he wasnt feeling well, to follow him home in his car)(NL): Theman did not undertake aid/assume control over his friend or the car comparedto Octillo where the man took the car keys

vi. Special Relationship1. The special relationship between parties can impose a duty when a duty would not

normally exist

2. Duty to assist othersa.

Common Carriers have a duty of care to assist their passengers and preventforeseeable injuries that occur while transporting the passenger to areasonably safe place

b. Brosnahan v.WesternAirLines (Passenger is hit over the head by anotherpassengers luggage)(L): airline has a duty to supervise the boarding processand the airline is responsible for the foreseeable risk of being hit in the head ifthere is not proper supervision

c. Boyette v. TransWorldAirlines (drunk passenger gets off connectingflight and steals a golf cart; a chase ensues and he hides in a chute that leads toa trash compactor and dies when its activated)(NL): decedent had reached areasonably safe place so the airlines duty to him ended; the P could sue theairport and claim a duty but it is not foreseeable that a passenger would climbinto a chute

3. Duty to protect others from third partiesa. General Principle (Rest. 315, pg. 239)

i. There is no duty so to control the conduct of a third person as toprevent him from causing physical harm to another unless

i. A special relation exists between the actor and the third personwhich imposes a duty upon the actor to control the thirdpersons conduct, or

ii. A special relation exists between the actor and the other whichgives to the other a right of protection

b. There is no duty of care to warn an individual of danger/threat except in caseswhere there is a specific and precise threat from the third party

i. Tarasoffv. Regentsofthe UniversityofCalifornia (physician didnot warn decedent when his patient made threats to kill decedent)(L):the special relationship/duty arose from the patient/doctor privilege the


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doctor has a duty (as outlined by the AMA) to break confidentiality toprotect the welfare of an individual

ii. Thompson v. CountyofAlameda (juvie offender with violentpropensity towards children threatened to kill a kid in the

neighborhood when released to moms care; killed neighbors kid 24hrs. later)(NL): the county did not have a special relationship with thevictim and the threat was not to a particular individual; a warning tothe general population would be inefficient and ineffective

i. My thoughts is that this ruling was wrong - it would have beenefficient and effective for the police to warn the parents ofsmall children within a few blocks radius of where the offenderlived; when looking at this in the hand formula the burden ofnotifying this select segment of the population would havebeen low and the PL would have been high considering hisviolent nature and the warning itself

ii. Policy Implications for the offender warning neighborhoodswould jeopardize rehabilitative efforts because of the stigmasurrounding criminals

c. There is a duty to protect an individual from harm of a third party when a Dhas exclusive control over the premises where an injury occurs (pertinent forlandlord/tenant situations and hotels)

i. Kline v.1500MassachusettsAvenue Corp. (tenant assaulted androbbed in the hallway of her apartment complex)(L): landlord hadexclusive control over the hallways and had exclusive power to take

the necessary security precautions; landlord also had notice ofprevious assaults so he should have taken reasonable care to ensuretenants safety

d. The police do not have a duty to protect a specific individual unless they canprove a special relationship (eg. Police beginning to render aid throughwitness protection); the duty extends to public at large

i. Riss v. CityofNewYork (woman goes to police stating her ex isthreatening to kill her but they do not offer protection; ex later has lyethrown in her face)(NL): The amt. of protection to be provided islimited by the resources of the community and they can't afford toprotect her based on threats of harm

4. Special Relationships also include:a. School/studentb. Parent/childc. Employer/employeed. Innkeeper/guestse. Business that holds its premises open to the public


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vii. Duties Arising from the Occupation of Land1. Duties to Trespassers

a. Trespassers one who comes onto the land without permission or privilegeb. General Rule

i. Generally no duty, except duty of reasonable care in carrying outactivities risking serious bodily harm forknown trespassers (w/ dutyto warn of highly dangerous conditions in some jurisdictions)

ii. Duty to avoid inflicting injury by "willful or wanton" conduct in somejurisdictions

iii. Don't have a duty to go out and look for trespassers on your land butonce you see them you have to take care

iv. Haskins v. Grybko (landowner mistook a trespasser for awoodchuck and shot him)(NL): P cant be held liable when he did notknow that trespasser was on his land; cant be expected to takereasonable care when you dont know an individual is on your land

v. Herrick v.Wixom (trespasser sneaks into circus and is injured by astray firecracker)(L): Even though the circus did not know he was atrespasser, he was a member of the audience and the circus had a dutyto use reasonable care to protect its audience; when you see a personsitting in front of you, you have to use reasonable care, regardless oftheir status

vi. Ehret v.VillageofScarsdale (gas leak from a pipe under the street;gas seeped into a vacant house where trespasser slept)(L): Similar to

circus case, it didn't matter that the decedent was a trespasser; he waspart of the general public and the D should have taken care to makesure he wasnt harmed; the gas like the firecracker was a danger to thepublic as a whole, not just to the individual

c. If its foreseeable that a trespasser will step onto a Ps land, the P must takereasonable care in carrying out activities risking serious bodily harm forknown trespassers (w/ duty to warn of highly dangerous conditions in somejurisdictions)

i. ClevelandElectric Illuminating Co. v.VanBenshoten (trespasseruses outhouse that sits over a sewer)(NL): It was not foreseeable that a

man would walk into a construction site to use an outhouse, thus the Pdid not have a duty to warn the D with a sign

d. Attractive Nuisance Doctrinei. If a condition on the land is reasonably foreseeable risk that would

attract the attention of children, the D will be liable

i. Keffe v.Milwaukee & St. Paul R. Co. (P had a RRturntable that kids leg got caught in)(L): Ct. held that D knew


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the turntable revolved easily, that it was attractive to kids, thatmany kids lived in the area and had a habit of playing and thatthe turntable was dangerous to kids when put into motion; Dshould have taken reasonable care (eg. put up a fence) toprotect the children when they could not be expected to protectthemselves

2. Duties to Licenseesa. Licensee one who enters on the land with the landowners permission,

express or implied, for her own purpose or business rather than thelandowners benefit; social guests are considered licensees

b. General Rulei. Duty to warn of dangerous hidden conditions of which owner is aware

(and licensee is unaware)

ii.

Duty of reasonable care in undertaking activitiesiii. No duty to inspect

c. The relationship between the parties are important to determine if the D is alicensee or an invitee

i. Davies v.McDowell NationalBank (couple visit wifes stepfatherat his office; wife and stepfather died from carbon monoxidepoisoning)(NL): Ct. had to determine whether the wife was a socialguest or a business visitor; ct. held that she was a social guest since hewas her stepfather and the ct. believed it did not matter that theincident occurred in the stepfathers office; since the wife was social

guest/licensee then the D can only be liable if he knew of the latentdangerous condition and failed to take reasonable care; P couldntshow that D knew of the condition

3. Duties to Inviteesa. Invitees one who enters onto the premises in response to an express or

implied invitation of the landowner and includes those who enter ontopremises opened to the public (eg. Museums) and those connected with thebusiness (eg. Store customers); business visitors are considered invitees

b. General Rulei. Duty of reasonable care both as to condition of property and as to

activities

ii. Duty to warn and duty to inspectiii. Jacobsma v. Goldbergs Fashion Forum (man grabs thief at a store

when manager yells Stop Thief)(L): store had knowledge that thieftried to steal clothing three days earlier and it was foreseeable that hewould do so again; since the man was a business customer, the D owedhim a duty to protect him from the thief


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c. Firefighters and police officers are treated as licensees because society givesthem an implied consent to enter the premises even when an owner may notbe on site to grant permission; firefighters and police cant recover for riskspresent on the property, if the owner is unaware of the risk

d. Scope of Invitation a person loses their status as an invitee if they exceed thescope of the invitation and goes into a portion of the premises where herinvitation cant reasonably be said to extend (eg. Customer goes beyond theemployees only door)

e. Some jurisdictions challenge the distinctions between trespasser, licensee andinvitee and instead state that you must treat non-trespassers with reasonablecare

i. Rowland v. Christian (womans guest cuts his hand on a brokenfaucet which she asked the landlord to fix a month before theincident)(L): Ct. held that an individuals status has some bearing on

the question of liability but it is not determinativeii. Carter v.Kinney (member of a Bible study group went up to a

house for a meeting and slipped on ice)(NL): Ct. disagrees withRowland and the trend to get rid of the distinctions; Ct. holds that thedistinctions balance the interests of the injured and the possessors ofland; the distinctions also create fairly predictable rules so that entrantsand possessors can determine appropriate conduct and juries canassess liability

iii. "Duty" doctrines serve as a way of controlling juries since a ruling thatD has no duty or a limited duty is usually a determination of law to be

made by a judge, as opposed to decision about whether a D exercisedreasonable care which would best be answered by jury as adetermination of fact (breach)

viii. Negligent Infliction of Emotional Distress (NIED)1. This is not a separate tort; it is a way of talking about a type of cases in which the

question is whether the D had a duty to refrain from carelessly causing the emotionaldistress; the harm is the emotional distress in the negligent case; it is at root anegligence case

2. To claim NIED there must be a physical manifestation of the mental suffering/injury(eg. Depression or anxiety)

3. Pandoras Box Problem a policy implicationa. With NIED, cts. Are concerned that if they establish liability, they will be

opening up suits to a huge class of Ps

b. The cts. want people to be able to recover but they also want some limitationsto ensure people arent taking advantage of the system

4. There are two types of NIED cases: zone of physical danger cases and bystandercases


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5. Zone of physical danger cases are those in which the P is the direct victim of thenegligence (eg. near miss cases)

a. Robb v. Pennsylvania Railroad Co. (woman was almost killed by a trainwhen her car got stuck in a rut on the tracks)(L):

i. Impact Rulei. In the past, cts. Believed that NIED could only be claimed if a

physical injury also occurred

ii. Cts. Believed fright alone did not give rise to a cause of action,so the consequences of fright will not give rise to a cause ofaction

iii. The physical consequences of fright are too remote and that therequisite causal connection is unprovable

iv. Fright is a subjective state of mind and is difficult to evaluate,easy to prove for P and difficult for D to disprove; this willlead to the opening of Pandora's box, where the cts. Will beinundated with claims

ii. Ct. held that the Impact Rule is discredited and an individual canrecover for NIED if they are within the zone of danger

i. It is now generally agreed that the gist of the action is theinjury flowing from the negligence, whether physical impactor nervous shock

ii. With the advance of medical science, the resulting injury canbe traced back to the fright

iii. Jurisdictions that allow this cause of action has not beenflooded by those cases and if it is then the jurisdiction will justhave to cope; cts. Deal with claims of pain and suffering basedon subjective symptoms all the time

b. "Zone of physical danger" is a useful limitation for NIED because the fear andharm would be understandable if you are in the zone compared to someonewho sees the accident from a safe distance

c. But cts. Place limitations on who can use the zone of physical dangerargument to limit the amount of possible Ps

i. Lawson v.ManagementActivities, Inc. (a plane crashed near aHonda dealership and as it went into its dive, the employees at thedealership believed it was going to crash into them)(NL): Duty of careimposed on airplane operators does not extend to emotional distress ofpeople who were physically untouched by a plane crash, even if theyfeared it would crash into them; holding the plane liable would openup Pandoras box and there would be a huge class of P's claimingNIED since a lot of people would see a plane crash


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ii. Quill v. TransWorldAirlines (plane went into a nosedive and pilotregained control 5 seconds before the plane hit the ground)(L):assigning liability on the D would not open Pandoras box because thiscase deals with a smaller class of Ps (passengers on the plane)

d. Toxic Tort casesi. In this sub-category of zone of physical danger cases, a P may claim

that they have been exposed to a toxic chemical and fear that theirexposure could result in illness

ii. To prevail they must show that they were exposed to the chemical andthat there must be a probability that they will contract the illness

i. Potter v. Firestone Tireand Rubber Co. (Ps lived next toa landfill where the D dumped toxic carcinogenic chemicals,despite the govt telling them this action was illegal)(NL): Ct.held that policy concerns require the P to show that there is a

probability of getting cancer (eg. Burden of payment of awardsbased on fear alone would be borne by the public in higherinsurance premiums or businesses going without insurance)

6. By-stander cases are those in which someone else is the victim of physical injury andthe P witnessed the injury

a. Factors Ct. consider with bystander cases: how closely related the bystanderwas to the victim, whether the bystander actually saw the accident occur andhow close the bystander was to the accident

b. Relationship between bystander and victimi. If there is a close relationship between the bystander and the victim(eg. Mother/son; husband/wife) then the bystander could recover

ii. Barnhill v. Davis (man saw his mother hit by a car when she wasdriving behind him)(L): It is reasonably foreseeable that a son wouldsuffer mentally and a jury can decide whether a reasonable personwould believe his mother would be seriously injured or killed by theaccident

c. Temporal proximityi. If the bystander was on site, when the accident occurred then they

could recover

ii. Marzolfv. Stone (fathers son was killed in a motorcycle accidentand the father came up on the scene 10 minutes after the accidentoccurred)(L): the trauma of seeing a loved one on the scene of anaccident stems not only from seeing the accident occur but also fromwitnessing the aftermath of the accident

d. Spatial Proximity


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i. If the bystander was nearby when the accident occurred, they couldrecover

ii. Gain v. CarrollMill Co. (father saw footage of his son being killedon the evening news)(NL): Mental suffering of a relative who is not

present at the scene of the accident is unforeseeable as a matter lawand thus the D cant be liable

e. A D cant be held liable if a P mistakenly believes someone is injured by anaccident

i. Barnes v. Geiger (woman saw someone get hit by a car and thoughtit was her son)(NL): Distress based on mistake will vary from personto person based on their ability to imagine the worst that can happen;to extend liability to individuals who are distressed based on mistakewould add an unreasonable amount of people a person can be liable to

C. Breachi. A D breaches their duty when their conduct falls below the level of reasonable care owed to

the P

ii. The Hand Formula is used to determine whether that conduct falls below the level ofreasonable care

1. United States v. Carroll Towing Co. (employees on a tugboat did not properlyretie the lines on the barge; barge floated away and was struck by a tanker propellerand sunk; bargee was not onboard)(L): Ct. created the hand formula and held that thebargee was liable for the damage because the burden/cost of having the bargee onboard would be low (since he was supposed to be on board in the first place) and theprobability of a serious harm resulting from this lack of proper supervision was high

Hand Formula

B = the burden/cost of taking adequate precautionsP = probability of the harm occurring as a result of untaken precautionL = the gravity of the resulting injury

B>PL = not negligent it would cost more for the D to prevent the accident so theD should not have to take the precaution/care and thusthey are not negligent; instead the burden is put onthe P; this is what basically happens in an accident

B


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L = electrical shock

B>PL = not negligent

3. Bolton v. Stone (cricket ball went over a fence and hit a neighbor in the head)(NL):B = the cost of preventing balls from going into the streetP = the likelihood that a ball hits a person (low because only a few balls have

come over the fence in the past 30 yrs.)L= the harm caused by being struck by a ball

B>PL = not negligent

4. Eckert v.Long Island R. Co. (man spotted a child sitting on RR tracks and pusheskid out of the way but is struck by the train himself and later dies)(L): D tried to arguethat the man was contributorily negligent; ct. holds that negligence implies some actor omission that is wrongful and there is nothing wrong with a man saving a childslife; if the man believed that he could save the child without harm to himself then he

cant be negligentB = not going onto the tracks to save the child when it is definite that the child

would die (the decedents B includes the PL of the child)P = the likelihood that he would die (if he had stayed off of the track then the

likelihood would have been miniscule)L = value of his own life

PL(B)>PL = man is not negligent

iii. Custom and the Problem of Medical Malpractice1. Customs help to determine what is considered reasonable care2. Even though a D may take the precautions that are standard or customary in theirfield, a ct. can rule that the precaution breaches a duty, if the standard is not an

example of reasonable care

3. Evidence of compliance with custom or non-compliance with an industry custom isrelevant and admissible, but not determinative

a. The T.J. Hooper (tug boat did not have working radios on board and therecould not hear warnings of an approaching storm; lost barges in the storm)(L):D argued that working radios were not an industry standard so they should notbe held liable; Ct. held that radios are a cheap and easy means of avoidingstorms so they should keep up with the times and get the working radios

B = cost of getting radiosP = probability of injury in a stormL = injury can be high if its a serious storm

B


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lack of masks so there is nothing wrong with the practice; in this case, customwas a good defense

4. Custom is only relevant when the conduct/standard in question is not inherentlydangerous; if it is, then the custom will have to change

a. MacDougall v. Pennsylvania PowerandLight Co. (plumber goes on roofon a rainy day and hit his head on an unmarked fuse box that sat on the roofedge; he was electrocuted)(L): Ct. held that the placement of a fuse box near aroofs edge was an inherently dangerous conduct and the industry standardmust change; a high degree of danger always calls for a high degree of care

5. If the parties have a contractual relationship, the reasonable standard of care is fixedby the markets and tort law ensures that companies comply to these standards

a. Rodi Yachts, Inc. v. NationalMarine, Inc. (unattended barge slipped freeafter being in port for a few days and crashed into 2 other boats)(unknown):Injurers have to worry that if they endanger their customers they may lose

them or have to charge a lower price to compensate them for bearing the riskof injury; As a result the market fixes its own standard of care to reflect thepreference of potential victims and potential injurers; both parties have tominimize their liability costs by allocating responsibility for safety measuresefficiently whether explicit or implicitly by abiding by the customs of themarket

6. Medical Malpracticea. Custom is dispositive and the standard of care a doctor was bound by either

falls under the locality or national rule

b. Locality rulei. Old Point of View

i. Doctors were bound by the standards that were prevalent inthe community in which they practiced

ii. New Point of Viewi. Doctors should be bound by the standards that are prevalent in

communities that have similar geography and medical facilitiesas the community in which they practice

a. Gambill v. Stroud (woman had complications fromanesthesia which res

Torts Outline Heymann

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