Torts OutlineFall 2013
I. INTRODUCTION TO TORTS1. What is a tort? A civil wrong not
based in contract1) origins: British common law2) three types:
intentional, negligence, strict liability3) Purpose:
Preserving the peace: we want to provide civil redress for
people; forming alternative form of redress; allow vindication for
people wronged by torts, even where damages are not at issue
Compensation: designed to make the plaintiff whole; KEY; assumed to
try to look at corresponding damages to injury; not necessarily
efficient because of high transaction costs Alternative systems:
workers comp, insurance Deterrence: deterring dangerous behavior
(not clear that tort is the most efficient way of doing so) (ex:
loss of chance doctrineafraid of doctors that avoid addressing
someones chance of survival) If damages are unforeseeable,
deterrence is limited: how can you deter someone from having an
accident? Corrective Justice (Cardozo): Tort should function as a
mechanism that allows individuals to sue their wrongdoer
(vindication) Loss Distribution: tort is about allocating risks to
parties who are in the best position to assume liability Strict
liability: for parties who have more control, more wealth, spread
costs equally and efficiently Which way of allocating loss
generates the most overall, societal wealth? What is the most
efficient use of funds? Accountability: a way to hold large inst.
Actors, corps, parties for which individuals have very little
ability to seek redress, to have a form of redress Limiting Govt:
if we didnt have torts, we would need statutes to regulate every
little thing; Tort as alternative to agency capture: when an agency
has lobbying interest and have undue influence over a particular
industry
II. NEGLIGENCEfailure to heed a duty of reasonable care owed to
another that causes injury to that otherA. DUTY ELEMENT: Who Owes a
Duty? 1. Overview of Negligence Elements / Injurya) 4 elements:
DutyBreachCausationDamages need all four to objectively prove prima
facie caseb) Injury: the first and most basic condition for viable
tort claim; must prove that injury has suffered her the right kind
of adverse effect-physical harms: bodily harms or destruction of
tangible property-loss of wealth (incorrect drafting of will,
forced unemployement)-emotional distress (very severe)-loss of
chance of survival-loss of consortium2. General Duty : must take
precautions of a reasonably prudent person acting under same
circumstances to avoid causing harm to anothera) Requires plaintiff
to establish that defendant owed her or a class of persons
including her an obligation to take care not to cause the type of
injury she has sufferedb) Duty can be established by reasonable
foreseeability: if physical harm to a person is reasonably
foreseeable, actor has a duty to take care to not cause such a harm
to that personc) Privity rule: limited duty to contracting
partiesabolished in MacPherson decision: duty owed is based on
foreseeability of riskd) No affirmative duty to act but when you do
act, you have a duty to do what a reasonable prudent person would
do in like circumstances to avoid harm to anothere) extent of
foreseeability in Mussivand v. David: carrier of VD has duty to
disclose disease or take precautions against spreading infection to
sexual partner AND to that partners spouse who contracts the
disease: spouse is a foreseeable sexual partner (if direct partner
is informed, liability shifts)3. Qualified Duties of Care
Affirmative Duties, Intro to Premises Liabilitya) Affirmative Duty
exists:-when actor creates risk
-special relationship with victim (employer-employee,
school-school children, common carrier-carried)
-special relationship with tortfeasor
-Doctors and mental health professionals
-voluntary undertaking (hospitals providing care)
-Premises liability (Leffler): ownership creates liability; duty
established by status (status can shift from invitee to trespasser,
as in Leffler)Invitees: customer or client, mail carrier, garbage
collector; there for the interest of the inviter-- duty to keep
premises reasonably safe for ordinary useLicensees: on property
with possessors consent, not for benefit of possessor (applies to
social guest)--duty to warn and disclose non-obvious hazards of
which the possessor are aware of or should be aware; refrain from
willfully or wantonly harming the party (no duty to inspect or
repair)Trespassers: one who enters onto a possessors property with
no license or permission (implied or actual); does not need to be
doing wrong/have intent to do wrongduty to avoid willfully and
wantonly injuring them (willful and wanton = crossbows on lawn to
deter)
**Trespassing children exception: Attractive nuisance doctrine1)
dangerous condition on land2) owner has knowledge of children in
vicinity that might enter3) owner knows condition would cause
bodily harm4) expense of remedying condition is slight5) reasonable
care is not taken (signage usually doesnt suffice)ex: digs a big
hole and doesnt fill it back in
**Once trespasser is discovered, owner has duty to warn of
nonobvious dangersShield rationale-wouldnt be fair to require
Leffler to take steps to avoid injury that was not foreseeable 50%
of jurisdiction recognizes 2 status categories: invitees/licensees
v. trespasser (on land w. consent v. on land w.o. consent)30%
recognize 3 status categories (above)20% no distinction (Rowland):
Minority Ruling on the Collapsing of Invitee/Licensee/Trespasser
Duties Owed: use fact based test4. Qualified Duties of Care Meaning
and Significance of Duty, Pure Economic Losa) Pure economic loss:
persons who lose existing wealth or expected income may stand to
recover from another who has carelessly caused such a lossb)
General rule: no duty of reasonable care to avoid causing pure
economic losses to another EXCEPT:1) if parasitic to physical claim
(economic loss as result of physical harm: medical bills, loss of
future income)2) if parasitic to a property harm (car hits hotel,
hotel closes, defendant owes for loss of business)3) accountants
and attorneys4) intentional tortfraud, interference w. contract
B. BREACH ELEMENT: What do they have a duty to do?1. Breach and
the Meanings of Negligencea) Little nnegligence in sense of
careless course of conductb) Generally a matter of factjury
questionc) standard of care is important: least onerous to most
onerous scale:trespassersordinary careextraordinary carestrict
liability2. The Reasonable Person; Customa) The reasonable person:
objective standard applied to external conduct rather than state of
mind/attitude;takes into account: -youth: tender years
doctrineAppelhans v. McFall- angry old woman hit by 5 year old on
bikeunder 7 years old: no liability; 7-14 years old: sliding scale
subjective standardchildren under a certain age are unable to
recognize/appreciate risk; there is a utility in letting youth make
mistakes/learn; (**caveat: underage but engaging in adult
activityadult ordinary care standard applies) -limited physical
disabilitiesclear cut and basically undisputable-expertise: raises
standardlawyers, doctors, accountantsdoesnt take into
account:-mental incapacity, mental illness, clumsiness, old age,
rashnessb) Custom: Compliance with custom is probative of
reasonable care but not dispositive of reasonable care; does not
carry the day; even if defendant acted in customary way, it will
not establish that it lacks liability (TJ Hooper)
--Professional exception: Custom IS dispositive for doctors,
lawyers, accountants; Johnson rule: no breach as a matter of law
when a defendant acts in accordance with accepted professional
practices; inverse: if not acting in accordance with accepted
professional practices it is NOT AUTOMATICALLY a breach Adams
factors (boy swinging huge wire is shocked): one way of determining
how much industry standard weighs?1) was it a lawful exercise?2)
were precautions taken?3) could the injury be foreseen?4) is there
something particularly dangerous (a special danger) about this
place? 5) was there a departure from custom?6) safer option v.
burden to the defendant7) noticewas there a precedent of similar
injuries?3. Balancing and Cost-Benefit AnalysisWhat if one could
quantify the duty of reasonable care?Cost benefit analysis:-Hand
formula: B__P (L): balancing the burden on the defendant against
the probability of injury and the magnitude of the loss-Posner law
and econ movement: probability is collapsed: value/cost of
precautions v. value/cost of loss or harm; establishing specific
dollar values; guard rail costs less than plaintiffs medical bills,
defendant should pay those medical bills-Lord Reid (Bolton case):
when burden is large and probability of harm is very small, no
precautions are needed; when harm is very large, one must take ALL
precautions
4. Res Ipsa LoquiturThe thing speaks for itselfBreach=
Plaintiffs burden of proof burden of production AND burden of
persuasionRes ipsa loquitur: burden shifting mechanism; allows case
to move forward without initial production burden (b/c plaintiff
may not have access to facts needed to please with specificity);
applies where defendant had exclusive control of situation, and is
in a significantly better position to present evidence needed; does
not mean plaintiff has met burden of persuasion three factors:1)
event must be of a kind that does not ordinarily occur in the
absence of someones negligence2) must be caused by
agency/instrumentality within exclusive control of defendant3) no
voluntary action/contribution of plaintiffex: Byrne v. Boadle: sack
of flour case, Ybarra v. Spangard (pl. under anesthesia for
appendectomy, medical pros have all exclusive knowledge/control of
the facts), Kambat v. St. Francis (lap band left in defendants
abdomen)C. CAUSATION ELEMENT1. Introduction to Causation / But-For
Test & Proof Problems; Loss of ChanceActual cause: when an
actors carelessness actually causes injury to the other; but-for
test: Skinner v. Squarewas presence of phantom zone on switch a
but-for cause of Skinners electrocution and death? NOcircumstantial
evidence did not establish only plausible explanation; plaintiffs
failed to show burden of proof by preponderance of the evidenceLoss
of Chance of Survival: Falcon v. Memorial Hospital -Trial ct. found
for defendant, reasoning that because the 37% chance of survival
was not more than 50%, defendant could not be liable for plaintiffs
wrongful death. -Higher ct. changed outcome by altering the INJURY:
not wrongful death, but loss of chance of survival-0% chance v. 37%
chanceit is more likely than not that she lost a chance at
survival-only applies to human life 98% of the time, loss of chance
will arise from med mal cases Needs to decrease chance of survival
by clear amount Must go to specific deterrence rational: dont want
to have situations where people create Here, any number of things
could have happened (vultures picking, nobody would have found him
anyway, etc.)Multiple Necessary & Sufficient Causes, Burden
ShiftingMultiple Necessary Causes: but-for testMcDonald v.
Robinsoncar collision causes injury to third party: but for the
concurrence of defendants separate negligence acts, the accident
would not have happened and produced the injury-no need to be the
singular cause of an injury to be found liable; its enough to be A
causeMultiple Sufficient Causes: Substantial Factor test-but-for
test is not used to determine actual causation-Risk of harm is not
enough -plaintiff must show that this cause alone (among others)
would be sufficient to cause totality of injury (Aldridge did not
show that exposure to the chemical alone would be sufficient, so
cannot move on to substantial factor test)-after determining cause
is sufficient: actors carelessness must be a substantial factor in
bringing about an injury in order to be deemed a legal cause of
that injury. Carelessness will be deemed a substantial factor if it
constitutes(i) a non-trivial necessary condition for the occurrence
of the plaintiffs injury; or (ii) one of two or more forces that is
each sufficient to bring about harm to anotherBurden Shifting-
Summers v. Tice (two hunters carelessly shoot a third
hunter)Alternative liability rule:1) Each party is held
independently2) Each party is held prima facie liable3) Each is
permitted to break the deadlockpresent evidence that he or the
other was more likely to cause injury*Only applies when:1) Each of
two or more parties have been independently and identically
careless towards the plaintiff2) Carelessness of one but not the
other could have caused injury 3) No suggestions tat there is any
other tortfeasor involved 4) Plaintiff is absent of faultLike res
ipsathis rule stems from the dear that the faultless victim will be
unable to prove cause Introduction to Proximate Cause Foreseeable
RisksProximate Cause- is the injury too attenuated to make a party
liable?Evolution of prox cause rules/tests: 1. Natural and Ordinary
Test: About physical proximity- very limiting and quickly
overruled- but set the groundwork for future conceptsRyan Case- it
was natural and ordinary (and therefore proximate) for a fire to
spread to one place (the shed), but NOT a proximate cause when the
fire spread to a second place (in this case- the plaintiffs
house)2. Directness Test- Polemis (opposite of the foreseeability
test)Not having foreseeability is irrelevant- if Ds careless acts
directly caused Ps injury, then D is liable3. Foreseeability-Union
Pump v Allbriton- Pump manued by D caught on fire at Ds workplace.
Put out fire and a few hrs later P went w coworker to go check
another valve. Took a faster but less safe route to the valve, on
the way back P slipped on water from putting out the fire and fell.
P sued D bc she said w/o the fire, there would be no injury. Court
said you need cause in fact AND foreseeability, forces were not
still in play, circumstances were too remote- no prox cause.--Was
it reasonably foreseeable that Ds carelessness would cause Ps
injury?--Norm, expectation- what the defendant is expected to see,
and not what they defendant actually sees--Setting an objective
standard- an objective level of reasonable foreseeabilityWhat is
reasonably foreseeable? -What one is expected to see, not what one
actually perceives-objective level of anticipation4. Scope of Risk
TestIs the injury that befell the plaintiff amongst the types of
harms that the defendant risked by virtue of acting carelessly
towards the plaintiff? Jolley v. Sutton London Borough Council (boy
injured fixing abandoned boat)Proximate Cause Continued Superseding
CauseBL RULE: where intervening forces are individual actions
distinct from natural response or reaction to the situations caused
by defendant, proximate cause will most likely limit defendants
liability(Superseding cause) Pollard v. Oklahoma (boy collected
powder in cans): independent intervening acts of Millard and his
parents rendered the original negligent act of the defendant to
only a remote cause of plaintiffs injury(Not superseding cause)
Clark v. E.I. DuPont (kids find glycerin in a graveyard): distinct
from Pollard- no work or effort to create new danger; injury
naturally stemmed from original dangerous act (negl. of E.I.
DuPonts agent)*Proximate cause is not tightly linked to temporal
proximity between act and intervening causeYes-Sup. CauseNot Sup
cause
1) Is the third party breach second in time?2) Is it a new form
of mischief; transformative; independent; breaks chain of natural
events; acts of God1) 2nd act is by plaintiff (theres a different
way to deal with pl.s fault2) forces set in motion by defendants
careless act-inevitable consequences
(responses/reactions)-rescue-medical
malpractice-involuntary/kneejerk reaction
Proximate Cause Continued Palsgraf
Cardozo switches focus to duty from causation:-Zone of Danger
Test: the breach of the duty of care proven by plaintiff must be a
breach of duty owed to pl. or to class of persons to which she
belongs-Cardozos relationality test: is victim in Palsgraf a
foreseeable victimno, out of danger zoneAndrew dissent: there
should be no relational aspect to duty; look to proximate
cause-recovery must comport with common sense-practical
politics-very uncomfortable reversing a jurys decision
D. (An interlude) STATUTORY SUPPLEMENTS TO NEGLIGENCE
LAWNegligence Per Se [Breach per se]- permits plaintiff to point to
the standard of care outlined by the stature, regardless of how he
or she would fare under ordinary standard of careTo invoke a
statutory standard of care:1) statute must protect this class of
people2) statute must protect this type of injury3) statute must
have clear standards of expected conduct-Effect of violating a
statutory standard of care: presumption of breach of duty of
care-Compliance with statute does not necessarily mean that duty
has not been breached (one can still be careless)-Weighs heavily in
favor of defendant-Like customprobative not dispositive-still must
prove causationWhy does negligence per se exist?1) giving deference
to political branches of government (separation of powers)2)
reasonable person will comply with the law: adherence to norm3)
efficiency4) fairness: reasonable reliance on rules of conduct laid
out in advanceExceptions for negligence per se:1) young children
(unaware of law, tender years)2) if there is an inability to
comply3) if it is more unreasonable or unsafe to comply with the
lawWrongful Death ActsTwo types of actions: policy purposes:
deterrence and accountabilityWrongful death actionderivative claim
of decedents-benefits decedents next of kin: must prove all 4
elements of negligence to decedent, THEN prove this negligence had
direct cause of next of kins loss-deals with economic dependence:
child care, elderly care, pension, wages from the deceaseds
job-usually only allows for pecuniary damagesdamages for mental
suffering not recoverable (Nelson v. Dolanmother sues for emotional
damage after sons death)-loss of consortium- money for things like
rent, education costs, sometimes parental guidance, etc
Survival Actiondecedents harms prior to death- brought by
administrator of decedents estate-purpose is to vindicate rights of
decedent: had decedent survives, this would be part of action- pain
and suffering (even if only 5 minutes as in Nelson v. Dolanfear of
impending doom) and medical costs up to time of death, funeral
costsall recoverableE. DEFENSES: burden shifts to defendant to
engage in affirmative defenseContributory Negligence vs.
Comparative ResponsibilityContributory Negligence- applies to a few
states: any fault shown by plaintiff will negate its ability to
recover ANYTHINGassessed by standard of ordinary care**Last clear
chance is exception to contributory negligence: if defendant has
the last clear chance to avoid causing injury and doesnt, no
contributory negligence defense will be availableComparative
Faultthree modelsModified/Partial- applies to 2/3 of jurisdictions:
bars plaintiff from recovery if plaintiff is found more than 50%
negligentPure- 1/3 of jurisdictions: plaintiff recovers whatever
percentage he or she is responsible forDivided: damages are divided
by number of parties evenly**Apportionment is usually the jurys
responsibility: jury instructions are therefore very important
(policy choices often embedded)Assumption of Risk: only for
negligence claims and strict liability- completely bars plaintiff
from recovery-balancing individual liberty/interest against
liability of torts-if an action is unreasonable, one may make
assumption of risk argument AND a contributory fault argument-if an
action in reasonable, assumption of risk is still available as
defenseExpress Assumption of RiskImplied Assumption of Risk
1) Did plaintiff enter contract (something written) voluntarily?
(no duress)2) Did plaintiff understand contract?1) Did plaintiff
engage in conduct voluntarily?2) Did plaintiff understand the
risk?
Tunkl Factors to determine type of transaction in which
exculpatory provisions (express assumption of risk) will be
invalid:-business of a type generally thought suitable for public
regulation-party engaged in service of great importance or
practical necessity to public-party holds itself out as willing to
perform public service-decisive advantage in bargaining
strength-makes no provision whereby purchaser may pay a fee to
protect against negligenceKnight v. Jewett identifies: MINORITY
RULEPrimary Assumption of Risk: identifies special rule of no duty
under which participants in a certain kind of activity (typically a
recreational sport) by virtue of decision to participate, are owed
no duty of reasonable care by other participants--NOT REALLY
ASSUMPTION OF RISK, JUST A HOLE IN DUTY RECOGNIZED BY A MINORITY OF
JURISDICTIONS
Secondary Assumption of Risk (IMPLIED ASSUMPTION OF RISK):
refers to affirmative defense discussed in Smollett v. Skayting (no
guard rails at the roller rink)-voluntary choice, aware of
risk-American individualistic understanding-deters plaintiff from
engaging in risky behaviorStatutes of Limitation &
ReposeStatutes of Limitation: triggered by injury (subject to
inquiry rule)*most jurisdictions adopt discovery rule: statute of
limitations does not begin until plaintiff discovers through
reasonable diligence that he or she suffered a compensable injury:
Ranney v. Parawax- clock starts when P knows there is a compensable
inquiry link to legal claim
Statutes of Repose: triggered by date product is manufactured or
purchased or by defendants act- can run out even before injury has
manifested in a plaintiff, BUT gives predictability and stability
to businesses being sued
F. REMEDIES AT LAW: DAMAGESCompensatory Damages: attempting to
make the person wholeIn personal injury: past, present,
anticipatory-economic losses: medical expenses, lost earnings,
repair costs-non-economic losses: pain and suffering (intangible
losses)--emotional distress--loss of enjoyment of life*note:
attorneys fees are not separated in apportioning damages1) Egg
Shell Skull Principle: tortfeasor takes his victim as he finds him;
liable for foreseeable types of harms (and damages); extent of harm
that is caused by initial harm will not bar P from recoverySmith v.
Leech Brain & Co: plaintiff husband dies from cancer caused by
a lip burn that he obtained while working for defendant; negligent
work settings caused molten metal to splatter on his lip--case
falls within egg shell skull principle, and thus defendant held
liable for all damages leading up to death as ultimate injury 2)
Compensatory damages is almost always a question for the jury or
trier of fact:Kenton v. Hyatt Hotels Corp: judge should not
reconsider the damages awarded by trier of fact unless it is so
inaccurate that it shocks the conscious3) Duty to Mitigate: P has
duty to reasonably mitigate his/her injury; objective standard:
does not take economic inequality into account (a woman who cannot
afford medication that a reasonably prudent person would take to
mitigate her injury will be said to have failed the reasonable
person test)4) Collateral Source Rule: generally damages are not
reduced because the person has received benefits from another
source (if Ps medical expenses were covered by insurance, such
evidence cannot be presented)Punitive DamagesIn general: awarded in
dignitary and intentional tort actions; for negligence, must be
more than garden variety Standard for punitive damages in
negligence cases: 1) Party knew or had reason to believe that
his/her act of negligence was about to inflict injury (wanton
disregard)and2) that he or she continued his/her course of conduct
with conscious indifference to the consequences (deliberate
indifference)Mathias v. Accor Economy Lodging, Inc: bed bug case:
punitive damages are appropriate for the policy reason of
deterrence General rules set out by Posner for awarding punitive
damages: if conduct1) is not likely to be prosecuted criminally2)
causes minor injuries (3) poses serious harms that may be difficult
to detect4) is undertaken by pernicious defendantsWhat is
excessive?Tort Reform: robust review of punitive damages1)
statutory fixes: caps2) constitutional limits: 14th amendment due
process (D has a right not to be subject to excessive punitive
damages) Joint Liability & ContributionDerivatively imposed
liability (blanket term): someone other than actor that caused the
tort is held liable Vicarious liability (respondiat superior) is
most common Partners on a joint venture Joint and several liability
3rd party insurance
Concept of agency: when should superiors be responsible for
agents acting on --other behalf? a) parents can be held liable for
action of children if child is acting as parents agent b) usually
an employment issue: respondiat superior (distinct from negligent
hiring/supervising)c) Partners in a joint venture: common purpose
between two parties: need to show mutual right to controld) Parent
authority (idea of implied respondiat superior): even if acts were
outside of scope of employment--often applies to people in uniform:
off duty cops, security guards, food service workerse) Intentional
torts: not usually subject to resp. sup because its is outside of
scope, except: --if force is authorized by an employer--friction is
encouraged--business employee is in service of employer for
business purposef) Independent Contractors: responsible for their
own acts, general not going to have actions attributed to hired
employer EXCEPT: --if acting as an employee--if engaged in an
inherently dangerous activityTaber v. MaineNavy service man gets
drunk on base and gets into car accident while driving off base;
Was Maine acting in line of duty when he engaged in negligent
conduct? Yes, respondiat superior applies and govt is vicariously
liable (ct. distinguished between a detour and a frolic, resp. sup.
applies to former but not latter)Two separate tests for vicarious
liability/respondiat superior:1) Does conduct of defendant benefit
his/her employee? Whether or not action was furthering the monetary
or institutional interests of employer, whether or not employer
asked them to engage in conduct; Narrow2) Is conduct of defendant
characteristic of employment? (more modern approach, Taber v.
Maine): is it part of what the job entails? Broad
Joint Liability and Contribution: Contribution: permits
tortfeasor whos paid more than fair share of damages to indemnify
another tortfeasor stems from policy concern of unjust
enrichmentJoint and Several liability: full damages amount is paid
by at least one tortfeasor if the other is insolvent; ex: P sues 2
parties for 100K, each apportioned to pay 50k, but party B is
insolvent. Party A needs to pay P full 100k.Presence of joint and
several liability does not foreclose comparative fault III.
INTENTIONAL AND DIGNITARY TORTSACT - INTENT - CAUSATIONA. BATTERY
& ASSAULT1. Battery: Prima Facie Elements1) Act (volitional
movement)2) intent to cause contact (no need for intent to harm or
offend) a. DIRECT INTENT TO BRING ABOUT CONTACT orb. OBJECTIVE
KNOWLEDGE THAT SUCH CONTACT IS SUBSTANTIALLY CERTAIN TO BE
PRODUCED]3) causation (did act cause the contact; contact with
object may be enough, but there much be physical contact**doctrine
of extended personality: battery can be established by contact with
anything so connected with the body as to be customarily regarded
as part of the others person (cane, hat, a plate, pulling a chair
out from underneath a person)**contact includes that which
interferes with reasonable sense of personal dignity; if someone
asks the other not to touch in a certain way, it is reasonable to
respect that others wishes2. Assault: Prima Facie Elements1) Act
(volitional, can be verbal)2) Intent to cause plaintiff
apprehension of imminent harmful or offensive contact (present, not
future threat)3) If act actually causes plaintiff to reasonably
apprehend such contact (actual not potential)Justifications to
intentional torts: burden of proof falls on the defendant; any
defense not raised is waived; comparative fault will not come up in
a pure torts caseConsent: analog to assumption of risk; defendant
is not liable for otherwise tortious acts if plaintiff consented to
defendants act (express or implied)--scope of consent: consent
induced by fraud (to essential matter of consent) or duress will
not be valid--general implied consent: inferred from circumstances
(reasonable person)--implied by law: emergency situations--Koffman
v. Garrett: 13 yr. old tackled by football coach; rule violations
are not probative, but not dispositive of consent (like custom),
they do not set scope of consent as a matter of law--OBrien v.
Cunard: woman on line for vaccinations sues doctor for
batteryclaims she never consented; If a mistaken inference of
consent arises from conduct of plaintiff, a consent defense may be
recognized*DOCTRINE*: consent as a defense if D actually and
reasonably believed that P consented to the conductSelf Defense:
unique to intentional torts; proportional response--when a person
actually and reasonably believes that he/she is about to be
attacked, he or she has a right to defend him/herself from bodily
harm--difficult to use against defamation and IIED--NECESSITY to
protect oneself--only for prevention of tort, never for
retaliation--Battered women syndrome: outlierDefense and Recapture
of Property--Katco v. Briney: spring gun case: Privilege to defend
property does NOT weigh out harm to human life; property < human
life and limb--distinction: protecting dwelling that you and your
family inhabit, right to defend person is there--key:
proportionality of harm--Recovery of chattels privilege: at your
own [legal] peril
3. False imprisonment: intentionally confining someone against
their will4. Intentional Infliction of Emotional Distress:
intentionally or recklessly causing another to suffer sever
emotional distress through outrageous contactIntent
RevisitedUnintended Consequences & Knowledge Vosburg v. Putney:
boy kicks schoolmate in the kneed while at school during class
hours; causes plaintiff school mate to be permanently lame;
defendant boy claims he did not intend to cause injury--Court holds
that the requisite intent for battery is not to cause injury or
harm, but merely intent to cause unlawful contact--also confirms
egg shell skull rule: tortfeasor responsible for all injuries
caused even if intent of extent of injury is not there Cole v.
Hibberd: defendant kicked friend playfully in the rear: ISSUE: is
defendant liable for battery if she did not intend to harm
plaintiff? --Court holds that intent to cause contact, not intent
to injury, constitutes battery--Defendants conduct would be
considered offensive to a reasonable sense of personal dignity--In
general: to satisfy intent element in intentional torts, there must
be an intent to bring about offensive contact or an intent to act
with knowledge that offensive contact is substantially certain to
be producedTransferred Intent: can be applied to Battery and
Assault In re White: defendant white intended to shoot William
Tipton but missed and hit victim instead; ISSUE: was Whites conduct
intentional toward victim if defendant did not actually intend to
shoot him--Court held White liable because of DOCTRINE OF
TRANSFERRED INTENT: although defendant must intend a contact with
another person that is harmful or offensive, the individual who
actually suffers the contact need not be the person defendant
intended to contact--applies to assault and battery but not usually
for property torts
B. INFLICTION OF EMOTIONAL DISTRESSIntentional Infliction of
Emotional Distress: Defendant engages in cruel mistreatment of
plaintiff: abominable conduct towards often vulnerable party Do not
need threat of imminent harm Manifestation of physical harm is not
necessary Paradox: loosely defined to fill in gaps, but worrisome
to judges because of notice element PRIMA FACIE CASE (really
horrific facts) Act: extreme, outrageous conduct (beyond all bounds
of decency) Intent to cause plaintiff to suffer severe emotional
distress OR should have known that plaintiff would suffer from
emotional distress as a result Injury: Severe emotional distress
must occur Dickens v. Puryear: defendant lured plaintiff into
remote area and brought along four people to intimidate and
threaten the plaintiff using handcuffs, nightsticks; threatened to
kill and castrate; cut off his hair; Plaintiff alleged IIED by
defendant: that he suffered severe, permanent mental and emotional
distress AND physical injury to his nerves and nervous system/other
physical ailments Monetary loss: inability to work ISSUE: does
evidence demonstrate that plaintiff suffered IIED (beyond assault
and battery)? HOLD: yes: future threats are actionable by IIED;
defendants conduct was willful, malicious, calculated, deliberate,
purposeful; and the conduct CAUSED plaintiffs injury Littlefield v.
McGuffey: rental agreement broken with plaintiff by racist
landlord, he continued to harass and threaten her, her sister, and
her boyfriend; ct. held that evidence was sufficient to establish
IIED ELEMENTS OF IIED AFFIRMED: Conduct must be extremely
outrageous Actor must intend to cause emotional distress Conduct
must ACTUALLY CAUSE emotional distress (physical manifestation of
emotional distress is not required) Limitations First amendment:
public figures subject to different standards (less able to make
use of IIEDsubject to more public scrutiny) Private funerals:
speech that could be deemed offensive or outrageous might be
someone exercising freedom of speech (Snyder v. Phelps: funeral of
soldier, politically offensive language is not outrageous)Negligent
Infliction of Emotional Distress BL Rule: there is no duty to avoid
emotional distress of another UNLESS Intentional Parasitic to
physical injury Zone of danger test (2 versions): defendant is
subject to a duty to avoid emotional harms arising from a risk of
imminent physical harm to the defendant; majority rule (Robb): need
a physical manifestation of emotional distress; 1. Defendants
carelessness places plaintiff at risk of imminent physical harm2.
Plaintiffs has contemporaneous awareness of the peril that causes
her to fear for her own safety3. Fright actually causes physical
manifestations that would be elements of damages Use zone of danger
test to determine DUTY, then prove other elements of negligence,
including an injury that is VERY severe emotional distress
Minority/Federal rule (Gottshall): same first two parts of Robb
test; no physical manifestation required Certain special
relationships: parents and guardians over children, morticians to
families, doctors to families of patients Beul: guardian/child
relationship creates duty to avoid emotional harms because their
acts can likely cause emotional distress Restatement 3rd sect.
46placement in immediate danger of bodily harm or it occurs
Bystanders can recover if Plaintiff and person physically injured
were closely related If plaintiff was present at scene of the
accident Plaintiff personally observes/perceives harm of related
party (not heard) Impact rule: filler for fake claims; difficult to
prove System has a duty to address these problems Medical
advancesIV. STRICT LIABILITY/ LIABILITY WITHOUT FAULTA. PROPERTY
TORTS: relief sought is often injunctive Trespass: actor causes
tangible invasion of the land that is lawfully possessed by
another1) INVASION: Defendant interferes with plaintiffs right of
exclusive possession of landa. Land=on, above, or below the
surface; overhead wires and tunnels2) Intent to perform an act that
interferes with that exclusive right; voluntary entrancea. does not
need to know that land is possessed by anotherb. specific intent
not requiredc. mistake is not a defense3) Causation: invasion by
defendants act actually caused exclusive possession of owner to be
violated; damages are presumeddoes not need to be shown*Is the act
volitional? No need for intent to harm*Trespasser can be liable
even if he or she has behaved reasonably (Burns Philp)*Notice or
knowledge of trespass is not an element of prima facie case (Burns
Philp)Injuries Parasitic to Trespass: are personal injuries
compensable? Who is liable? --Special subset of claimants can
recover without showing carelessness by defendant if injury is a
product of trespass (Kopka v. Bell Tel. Co.unauthorized digging led
to homeowner tripping in hole and injuring himself)Why bring under
trespass rather than negligence?--easier, less elements, more
straightforwardEntrant may become a trespasser by moving beyond
scope of consent (Copeland v. Hubbardsneaky cat camera case):1) Was
consent voluntarily given? (no material fraud, duress, or
coercion)2) Scopea. Physical: Lefflerb. Temporal: time limitsc.
Purpose: what did possessor offer entrance for/to do?Intermeddling:
general term for any time physical damage to property exists,
conversion is most common
Wrongful acquisition: acquiring property through fraud
Necessity & NuisanceNECESSITY: emergencies, no time for
consent and withholding consent under those scenarios would be
crazy; **as soon as necessity is terminated, so does the right to
be on the persons property**if on a property, legally by necessity,
if damage occurs to the property while there, you will be
responsible for such damageNUISANCE: a continuing and substantial
interference with possessors use and enjoyment of his or her land
(beyond annoying)--both parties may be involved in lawful, but
incompatible activities Private Nuisance: must be possessor of land
Substantial: objective: what is offensive to average person in the
community Unreasonable: severity of injury; does injury outweigh
utility of Ds conduct? Public nuisance: govt has standing and will
bring suit Interference with health, safety, and property rights of
the entire community*compliance with law is probative but not
dispositive*for D to win against injunctive relief: must show that
Ds injunction presents extreme hardship that outweighs Ps enjoyment
and use of property*economic argument will not usually outweigh
over use and enjoyment of land*Factors can be used for public and
private nuisancein relation to pub: the only parties that have
standing are govt and municipalities*Coming to the nuisance is not
dispositivemust look to overall character and expectations of
enjoyment of propertyB. ULTRAHAZARDOUS ACTIVITIES Certain types of
harm are subject to strict liability: no inquiry into fault PRIMA
FACIE ELEMENTS OF STRICT LIABILITY Absolute duty on part of D to
make condition safe D has failed to make condition safe Ds conduct
was actual and proximate cause of injury Generally applied to
Keeping of wild animals (Domesticated animals known to be dangerous
treated as wild animals) Use of explosives and/or radioactive
materials Keeping of reservoirs IN GENERAL: Ultrahazardous
activitiy involves substantial risk of serious harm to person or
property no matter how much care is exercised (fireworks)
Restatement factors to determine whether an activity is abnormally
dangerous: Existence of a high degree of risk of some harm to the
person, land or chattel of others (probability) Likelihood that the
harm that results from it will be great (scale) Inability to
eliminate the risk by the exercise of reasonable care Extent to
which the activity is not a matter of common usage
Inappropriateness of the activity to the place where it is carried
on Extent to which its value to the community is outweighed by its
dangerous attributes (dont want to deter socially beneficial
activities) Defenses: Statutes of limitations Govt immunity test
Assumption of riskV. PRODUCTS LIABILITY
Traynors strict products liability testapplies to tangible
products Place a product on the market Product has a defect
Manufacturer knows product will be used without inspection Product
causes injury during its normal use Traynors arguments: MacPherson:
warranty of safety is not contractual, but a free standing concept
Policy arguments: which party is in most advantageous position to
reduce harm to human life and limb? Procedural fairness: negligence
is much too difficult to prove (what about experts?still very
difficult for injured party to prove negl.) Compensation:
manufacture in better position to spread the loss Consumer
protection: consumer has fundamental right to safety General rule:
Manufacturer is strictly liable in tort when an article he places
on the market, knowing that it is to be used without inspection for
defects, proves to have a defect that causes injury to a human
being having been used in the way it was intended Privity is NOT
requiredDesign defect: risk v. utility test: NY is most common 1.
utility of design to public2. utility of design to plaintiff3.
likelihood of harm associated with the design4. availability of
safer design5. feasibility of producing safer design6. what is
consumers knowledge of designWarning defect: adequate to warn
party: was warning effective?1. Specificity2. Proper placement3.
Large/visible enough4. In the right languagesDEFENSES: Assumption
of risk: complete Causation (usually only form of redress for
manufacturing defect)