Torts Study Outline Fall 2008

8/9/2019 Torts Study Outline Fall 2008

1/27

Torts Study Outline

Intentional Torts

Battery

Intentional invasion of others right of personal security (social policy). Defendants acts

intentionally cause harmful or offensive contact with the victims person

1). Voluntary/Conscious Act

2) Intent to cause harmful or offensive contact or the imminent apprehensionof harmful or offensive contact

*Offends a reasonable sense of personal dignity*

Reasonable person in the same set of circumstances Is it socially acceptable?

a). Desire - Must act for the purpose of causing the resulting contact(cause the consequences of his act )

OR

b.) Knowledge H/O contact is substantially certain to occur

3.) Harmful or offensive contact ( directly or indirectly) occurs

o Harmful illness, physical injury results

o Offensive Not socially acceptable contacts (not offensive even though the

person turns out to be hypersensitive and truly offended)

o Use reasonable person standard person in the same or similarcircumstances (would they find the contact offensive?)

Prior conduct (relationship) between parties must beconsidered

Ex: Boyfriend-girlfriend: hugging, kissing

Co-workers: slapping on the back, joking around physically

Policy Rationale: Legal redress discourages wrongful contact and violent retaliation

Nuggets of info:

Motive With Intent, the motive is NOT relevant (even if good)

Motives for forming intent do not have to be rational

Intent does not have to be hostile or malicious

Mental Incapacity (makes difficult to prove intent element)

Mental incapacity (insanity) is irrelevant to forming intent

Must appreciate the consequences of their actions


2/27

Social Policy: do not want people claiming insanity or mental

illness to defend their wrongful acts that cause damage to others .

Public Policy To enforce liability so that relatives of the insaneshall be led to restrain the insane person.

Majority of jurisdictions hold insane liable for their acts.

Children

o Children can form requisite intent

o Possible parental liability for torts of children

o Childs tort must be committed willfully or wantonly

o Damages to be obtained are capped at a very low amount (few thousand or

less

o Parents are not vicariously liable for torts of their children just by virtue of

being their parents (CL rule)

Examples of Battery:1). Touching, hugging, kissing someone who makes it clear that they do not wish the

contact.

2). Desiring a harmful/offensive contact such as falling, tripping, spitting

Examples that are not Battery:

1). Picking up package and accidentally dropping on someone

(intent is to pick up package, not to drop on someone).

2) Stepping off bus and knocking someone over

(intent is to step off bus, but not to knock someone over)

Transferred Intent

Intent to commit battery of one person and actually inflicts one on another

Intent transfers to other person actor still liable for injuries

Social Policy Reason not acceptable to exonerate just because wrongperson was affected by the battery (act)

Allows recovery where actor attempts one intentional tort but causes another

Intends battery but commits assault or vice versaEx.: Ted tries to hit Sally but misses and places Sally in apprehension of

the battery therefore, Ted commits an assault.

*Courts allow transfer of Intent between assault & battery, false imprisonment,conversion, and trespass to chattel*


3/27

Assault

Defendants acts intentionally cause the victims reasonable apprehension of immediate

harmful or offensive contact. (*constitutes a touching of the mind, if not of the body*)

1). Voluntary/Conscious act (with purpose)

2). Intent: Acts to cause a H/O contact with the person or an imminent

apprehension of H/O contacta) Desire (must act for the purpose of the resulting imminent

apprehension of the H/O contact)

OR

b) Knowledge that H/O contact (battery) or imminent apprehension of H/O

contact (battery) substantially certain to occur

3). Contact: The reasonable apprehension of an imminent battery or imminent

apprehension of H/O occurs

*Only apprehension of immediate contact must be established*

Apprehension:

Must perceive (be AWARE) that harmful or offensive contact is about to happen.

Ex. If victim is attacked from behind or while asleep, there is no apprehension prior to

contact. Victim is not AWARE.

Can create apprehension without actual attempt to cause contact.

Ex. A has unloaded gun, but intentionally leads B to believe gun is loaded, assault has

occurred, even though A does not have intent or ability to shoot. A has created

apprehension to B of being shot.

Nugget of Info:

Defendants ability or inability to carry out threat is irrelevant (see above

example)

All that is required is that defendant intends that the plaintiff be apprehensive

of the contact Plaintiff REASONABLY believes that the threat will be carried out.

Imminent Apprehension

Not necessarily fear - in anticipation of, perception of

Without significant delay expectation of H/O contact is


4/27

formed in the mind of a reasonable person.

Does not have to be immediate but within a short interval of time

Conditional Assault (Threats)

1)If the assault or threat is made based on the victims non compliance with thedemand, it is an assault.

Ex. If you dont sleep with me, I will shoot you.

If you dont give me all of your money, I will kill you.

2). If the actors threat (words) negate, or defeat the imminent assault, then there is noassault. Words indicate that actor does not intend to carry out the assault

Ex. If there was not a policeman here, I would smack you.

If you were not an old man, I would beat you silly.

Mere Words

Words alone do not constitute an assault because they do not show thedefendants purpose to cause immediate harmful or offensive contact

Defendant must produce a threatening act or motion to distinguish

between bluffing and aggression

Policy Rationale

Compensation

Purely psychological injury is compensable harm

Restrictive in what kind of psychological stress is allowed for compensation

Deterrence

Deter violent retaliatory response to unlawful attack

Encourages victims of attacks to refrain from behavior in excess of thatjustified by self-defense

Provides legal redress when apprehension of imminent attack allows a

legitimate privilege of self-defense


5/27

False Imprisonment

When a person confines another intentionally without lawful privilege and against his

consent within a bounded area for any appreciable amount of time.

Intent to Confine

Without lawful privilege

Against his consent

Within a bounded area

For any appreciable time (however short)

Intent to confine

o Desire to confine requisite intent is merely to confine

o

Knowledge that confinement was substantially certain to occuro Mistaken identity is no excuse

o No personal malice, hostility, or desire to harm is necessary

o Good faith belief that confinement is justified is no excuse

o Directly or Indirectly causing confinement is immaterial

Requisite intent must be present

Confinement occurs: in a bounded area, restricted, limited freedom of movement

(restricted freedom of movement in all directions)

*not applicable to keeping someone out*

Bounded Area:

Can be a large area (even an entire city) Vehicle (even if moving)

Exceptions to False Imprisonment

If there is a means of escape (but victim must be aware of means ofescape)

Escape not reasonable if victim must be heroic, endure excessive

embarrassment or discomfort

Methods of confinement or restraint

Physical barriero Must surround in all directions so that there is no reasonable means of

escape known to the victim

Force, threat, or duress of goods of immediate force against person,

property, or family

Assertion of Authority


6/27

o (real or perceived; doesnt matter if person doesnt have actual

authority as long a person being confined believes he does)

Refusal to Release (Omission of duty to act)

o Refusing to release from a once-valid confinement or aid in release by

providing a means of escape (duty to act)

Ex: A invites B out on his boat. B requests to go back to shore, A refuses;this is false imprisonment.

Awareness of confinement or suffer harm as a result

*Court says actual physical restraint not necessary*

False Imprisonment is a trespassory tort

Plaintiff can recover damages even if she sustains no harm

Actual harm is required if the plaintiff is NOT aware of confinement when

it took place

Ex. Someone drugs you and locks you in a trunk. You must show harm

from being drugged or locked in the trunk

Appreciable Time:

Length of time of confinement is irrelevant even a few seconds will suffice,

however, the length of confinement is relevant to establishing the amount of damages to

be awarded.


7/27

Intentional Infliction of Emotional Distress

When the defendant by his outrageous conduct, recklessly causes the victim severeemotional distress even in the absence of physical harm

An intentional or reckless act

Of extreme and outrageous conduct (outside of normal societal bounds of conduct)

Cause plaintiff to suffer severe emotional distress

o Words may be sufficient (racial epithets)

o Intent need not be malicious (tasteless practical joker)

No transferred intent (general rule)

Exception: must be immediate family member who is present at the time& distress results in bodily harm

Exception to the exception: no need to establish presence or familial relationship

if it can be shown that defendant had apurpose to cause severe distress

Ex: Ex-boyfriend B calls ex-girlfriend C and threatens to kill new boyfriend N. B

then kills N

Insensitive, callousness or rudeness is insufficient; does not rise to extreme &

outrageous

Must consider the context of the relationship between the parties Highly subjective standard reason it is difficult to establish

Courts reluctant to recognize tort concerned about fraudulent claims

Courts will limit liability where outrageous conduct on the part of the defendant is

proved

Known Sensitivity of the plaintiff Eggshell skull rule will make defendant liable

o Eggshell skull hypersensitive or special sensitivity

Acting without regard that a high probability that severe emotional distress will

result


8/27

Negligent Infliction of Emotional Distress

Must have caused some physical impact of the plaintiffs person (car, etc.)

Must have physical injury or physical manifestation of objective symptoms

Cannot recover for fright or shock alone

Must provide physical evidence resulting from shock

Must be medically diagnosable as an emotional disorder (if emotional injury)

Must suffer imminent apprehension of harm to himself (personal harm)

Ex. Mother sees her son get hit by car. Car doesnt touch her

Zone of Danger Rule

Guidelines for recovery

Courts guidelines

Plaintiff was located near scene of the accident vs. being at a distance

Shock must result from a direct emotional impact upon the plaintiff from the sensory &contemporaneous observance of the accident vs learning about it from someone else

Plaintiff and victim must be closely related

Dillon Test

Defendant only responsible for the damage that he caused

Defendant must owe plaintiff duty with respect to foreseeability

Person does not have to be in zone of danger

Policy Rationale

Serious mental distress with physical manifestations results in economic loss

From an accident-avoidance perspective, it deters culpable behavior


9/27

Torts to Property

Trespass to Land

Unauthorized entry onto land of another or causing another person or object to enter the

plaintiffs land

Substantial Certainty that entry will take place

Must have intent

o Can still be liable for intentional trespass even if mistaken aboutownership/possession

o Can still be liable even if there is no intent to harm the land

Personal Entry

Causing an Object to enter the land (firing a bullet, throwing an object, driving a

car)

Damage is presumed do not need actual harm/injury to the land required

Transferred intent applies to trespass to land

Trespass is an interference with possession not ownership

Liable for trespass when lawful right of entry expires

o Ex. P visits S, S gets mad at P and tells him to leave; if P does not leave he isnow liable for intentional trespass

Plaintiff must have a possessory interest since tort is premised on an interference of the

right to use and the enjoyment of the land

Ex. Owner may be guilty of trespass if she leases property to another and

enters the property without consent of the tenant (tenant has temporary

possessory rights)

What constitutes Land

-Surface of land, below the surface, or the airspace above it.

-Ct presumes that subsurface space to height or depth that plaintiff makes

beneficialuse of it

Stringing wires over land for cable

Flying an airplane at low altitudes

Tunneling or digging under it


10/27

Trespass to Chattel

Intermeddling with the chattel of another person that interferes with the plaintiffs right of

possession

Acting with intent to intermeddle with chattel & cause harm/damage (interfering

with; touching physically)

Total dispossession of chattel (stealing)

Substantial deprivation of use of chattel (not a momentary interference)

Dispossession (nominal damages) OK in context of dispossession if you dispossess but

give back because it is a trespass

o Dispossession consists of taking chattel from owners possession w/o his

consent or by fraud or duress, barring the plaintiffs access to the chattel or

destroying it while in the plaintiffs possession

o Defendant does not have to act in bad faith (maliciousness)

o Good Faith (in dispossession or harm) is not a defense

o Only requisite intent is (to act) required

o

Trivial interference is not actionable

Ex. A shoots Bs dog because he resembled a wolf. A is liable for trespass to chattel

(only intent to damage/kill is what is relevant; A is acting in good faith which is not a

defense)

*Liability and classification of Trespass to Chattel or Conversion is a matter of degree

(seriousness) Trespass to Chattel is just short of Conversion*

Liability is imposed if:

Possessor of chattel suffers dispossession or lost use

Chattel or possessor is harmed (to be compensable)

Liability is based on actual damage and not FMV of chattel

Reasonable mistake as to identity or ownership does not negate liability


11/27

*Transferred Intent applies to Trespass to Chattels*

Conversion

Intent to exercise dominion and control over the chattel of another

Voluntary Act

A voluntary act by defendant with the plaintiffs right of possession in the chattel

that is serious enough in nature to warrant that the defendant pay the full value ofthe chattel

Dominion & control is inconsistent with the rights of the true owner

Intent

Intent to perform the act bringing about the interference to plaintiffs right of

Possession, but does not have to be wrongful or malicious

Causation

Interference must be caused by defendants act or set act in motion

Forms of Conversion

Wrongful acquisition of chattel (theft, embezzlement)

Wrongful Transfer (selling, mis-delivering)

Destruction of chattel

Misuse of chattel

Unauthorized Use of Chattel

Unauthorized Sale with intent to pass title

Refusal to surrender chattel to the true owner or possessor

Substantially Changing

Definition of substantial interference (according to ALI)

Extent and duration of control

Defendants intent to assert a right to the property

Defendants good faith

The harm done

Expense or inconvenience caused


12/27

Intent with Regard to the Act

Mistaken Ownership is not a defense to Conversion

Innocent purchaser of stolen property is still liable for conversion

*The defendants are still intentionally acting to assert dominion & control*

Several Persons May Be Liable (Serial Conversion)

If A steals Bs watch and sells to C, then C refuses to return to B, then A may collect

from either one, but not both.

Bona Fide Purchaser

A bona fide purchaser is still liable for conversion (even if buying in good faith w/o

knowledge of the theft) if it is stolen from the true owner

Reason: The thief cannot sell anymore than what he has; likewise the purchaser cannot

buy anymore than the thief has which is NOTHING.

Subject Matter of Conversion

Personal Property

Intangibles reduced to physical form (i.e. promissory note)


13/27

Defenses to Intentional Torts Privileges

Self- Defense

Privileged to use reasonable force to defend against harmful or offensive bodily contact and

against confinement.

Based on apparent necessity of self-defense

Applies to BATTERY, ASSAULT, AND FALSE IMPRISONMENT

Must reasonably believe that threat exists (can be mistaken and it still applies)

o Use objective/reasonable person standard

o Consider circumstances of event and past history of the parties

Can use reasonable force to forestall the attack

Reasonable Deadly force

Reasonable force necessary to prevent the harm - must not exceed threat posed Sexual attacks or attacks by force likely to cause death or serious bodily harm/may

respond with deadly force of your own but must be REASONABLE

Retreat

Defendant is not required to retreat or otherwise avoid the need for self-defense.

Some states require reasonable retreat before using deadly force if there is a safe

and reasonable means of escape Minority view

Exception: in own dwelling

Excessive Force

Privilege only covers REASONABLE force!*

Any defendant may not RETALIATE or continue a defense after the fight is over. (or there is no

longer a threat of injury)

Provocation

*Provocation is not sufficient to raise self-defense privilege


14/27

Insults, Arguments

Unlawful Arrest

May use self-defense to resist Unlawful arrest

Defense of Third Persons

May generally defend as though you are defending yourself

Defense to False Imprisonment

Shopkeepers Peril

If shopkeeper suspects someone of shoplifting, shopkeeper may assert

privilege and detain IF:

There is a reasonable belief as to fact of theft (probable cause)

Detention must be done in a reasonable manner using non-deadly force

Detention must be for a reasonable period of time and only for purpose of

Investigation.

Reasonableness lays a significant role because we want people to resort to court rather than

self-help or vigilante justice

Defense of Property

General Rule: Privilege to defend property (land & chattels) as right to defend himself

May only use reasonable force to protect property

Inhabitants safety must be threatened

Deadly Force:

Trespasser must be committing a felony of violence or felony punishableby death

Trespasser is endangering human life by his act.

Mechanical DevicesIf property owner would not do it directly, then he cannot do it indirectly by

a spring gun or other mechanical device unless a felony is being committed

Non-Mechanical

Barbed Wire, broken glass must post notice


15/27

Social Policy Justification: Value of Human life outweighs the interest of a possessor of

land in asserting exclusion rights.

Necessity

Defense that allows the defendant to interfere with the property of an innocent party in

order to avoid a greater injury. The act is justified because the behavior minimizes the

overall loss

Public Necessity:

Privileged to harm property if the class of persons being protected is the public as a

whole or a substantial number of persons.

Actor is not liable for damages

Private Necessity: When harm to property is protecting ones own interests or those of a few private citizens

Actor is liable for damages


16/27


17/27

Prudent to avoid reasonably foreseeable risks of harm

Foreseeability is not measured by what is more probable than not, but that includes

whatever is likely enough in the setting of modern life that a reasonably thoughtful person wouldtake account of it in guiding practical conduct

Standard of Reasonable Care- Responsibility to act in a particular way Avoid injuring others by carelessness

One Standard of Care: Reasonable Care

o Standard of care does not change

o Degree of care changes proportionate to the danger of the activity

Care that is proper under the circumstances

Reasonable Person Standard- what a normal person would do in the same or similar

circumstances to avoid reasonably foreseeable risks of harm

common sense, sound judgment, ordinary prudence

considers foreseeable risk of injury

considers extent of risks by conduct

considers likelihood of risk actually causing harm

considers cost of various courses of action

considers whether there are alternatives to proposed conduct

Wholly objective standard

Assumed to possess the general experience of any member of the community

Knowledge and understanding generally held by the community

Emergency Situations

Jury may consider defendants reasonableness acting under emergency conditions

Physical Conditions

Easily measured; perceived as tangible

May be taken into account by jury; does not mean exoneration

Mental Conditions

Irrelevant for purposes of negligence liability

Public Policy Rationale: Mental disability too hard to measure; easily faked

Superior Knowledge, Skills, Abilities

Standard of care does not change But is required to exercise the superior qualities in a manner reasonable under the

Circumstances

Children

Held to standard of comparable conduct to other children of same age, experience,intelligence

Exception: If engaged in an adult activity, child is held to adult standard


18/27

Role of Custom (Deviation or Compliance)

Evidence of compliance or breach of custom is admissible as evidence

Custom evidence does not establish breach of duty

Standard of care remains unchanged

May suggest some degree of probability/forseeability of harm Deviation from custom may suggest breach of duty

Compliance with custom may show lack of breach of duty

General custom and usage is admissible because it tends to establish a standard by

which ordinary care may be judged even where an ordinance prescribes certain

minimum safety requirements which the custom exceeds

Negligence Per Se

An actor is negligent if:

Violation of a statute

Statute is designed to protect against the type of accident the conduct causes

Victim is within the class of persons that the statute is designed to protect

Compliance does not establish due care

Causal Link

Must still prove that violation of the statute is the cause of the harm

Ex: Causal Link Prescription pills with no insert (must have insert per statute).

Plaintiff takes pills w/o warning notice and dies

Defendant must prove that plaintiff would have still taken pills because she does not

usually read the warning anyway.

Defendant is not causal link because if Plaintiff does not read insert anyway, despiteDefendants omission of the insert or inclusion, Plaintiff still would have taken the pills.

Licensing Statutes

Most courts will not invoke negligence per se in this context

Will not use licensing statute as standard of care

Licenses statutes are to protect public from lacking requisite skill (of driving)

Plaintiff would have to prove lack of ability to recover

Non-Adoption of Statute by Judge

Does not bar Plaintiffs recovery

Proceeds under reasonably prudent person standard of care

Adoption of Statute by Judge

Statute replaces the usual reasonable prudent person standard of care

Jury role is limited

Jury only needs to find that statute was violated

Plaintiff must still prove other elements of negligence


19/27

Excuses to Exclude Violations

Violation is reasonable because of actors incapacity

Actor knows nor should know of the occasion for compliance

Actor is unable after reasonable diligence or care to comply Actor is confronted by an emergency not due to his own misconduct

Negligence: Breach of Duty

The Risk Calculus All conduct creates some risk

Need not take all possible measures to avoid all possible risk

Negligence liability when defendant engages in unreasonable risk

Effect of technology conduct not negligent may become unreasonable when reasonable

means to lessen danger become available

Assessment of Unreasonableness Judge Learned Hand

Likelihood that conduct will injure others

Seriousness of injury if it happens

Balanced against interest which he must sacrifice to avoid the risk

Balancing Test Hand Formula

B = Burden that defendant would have to bear to avoid the risk

P = Probability that harm will occur from defendants conduct

L = Gravity of the Potential injury (magnitude)

B < PL


20/27

Res Ipsa Loquitur

The Thing Speaks for Itself

An accident that normally does not happen without negligence; exclusive control of the

instrumentality by the defendant; and absence of voluntary action or contribution by the

plaintiff

Two forms of evidence of Negligence Breach of Duty

Direct Proof of Breach

No need to draw inferences

Evidence from personal knowledge or observation

Eyewitnesso Credibility and Reliability

Videotape

Circumstantial Proof of Breach

Must draw inferences from other facts to have probative value

Res Ipsa Loquitur

No direct evidence of the defendants behavior in connection with the event

Circumstantial evidence that permits the drawing of inferences (Indirect Means)

Jury may infer that defendant acted unreasonably without other proof

Plaintiff seeks to establish

The harm-causing event was probably due to negligence

The defendant was probably the culpable party

Must establish by a preponderance of the evidence the res ipsa Loquitur elements or case

will probably not get to jury


21/27

Does not have to eliminate all other causes of harm; even if defendant raises possible

non-negligent causes

Special Case

Ybarra v. Spangard

Court allowed plaintiff to sue several defendants who had control over hisbody during the surgery

Plaintiff was unconscious and became aware of an injury after surgery

Court allowed Res Ipsa to flesh out the guilty party

Court felt that all defendants had control over the body or instrumentalities

that caused the injuries

Cause in Fact (Actual Cause)But-for Causation

But For test

Injuries are actual, factual result of the defendants actions

Plaintiff must establish that but for the defendants actions, he would not have

suffered harmSine qua non without which it is not; an indispensable requisite

Injury would not have happened without the defendants act

If the outcome is the same WITHOUT defendants negligence, then defendant is notthe but for cause of injury

Plaintiff has the burden of proving the but for cause of his injuries

May have more than one but for cause for injury

But for test may not satisfy actions of multiple negligent actors

Substantial Factor Test

When the but for test does not satisfy the causation elementWhen two events would have been sufficient by itself to bring about the harm

Usually when there are multiple actors (redundant multiple causes)

Indivisible Injury

Jointly & Severally liable

Shifting the Burden of Causation

When both defendants are negligent breached duty of care

Defendants must prove that they are not the but for cause of plaintiffsInjuries


22/27


23/27

suffered.

Takes effect after the defendants negligence and contributes to the negligence producing

plaintiffs injury

Rescue Doctrine

Danger invites rescue Rescue is foreseeable as a matter of law

The wrongdoer may not have foreseen the coming of a deliverer, but is

accountable as if he had

Rescuer can recover from the defendant whose negligence prompts the

rescue

Where the defendant negligently injures or endangers himself and theplaintiff is

injured in the rescue

Defenses to Negligence

Contributory/Comparative Negligence

Joint & Several Liability

Joint Tortfeasors

2 or more individuals who act in concert to commit a tort

Aids or encourages another in committing a tort

Just as liable as one committing the tort Act independently but cause a single indivisible tortious injury

Plaintiffs entire injury must be attributable to the negligent acts of both

tortfeasors

Share responsibility for a tort because of vicarious liability

Employers may be held liable for negligence of employee/agent

Each individual is fully liable to the plaintiff for the entire damage award

joint & severally liable

Plaintiff may seek from one or all, but not multiple damages

Can look to one defendant for the entire amount

Allocating Fault Among Joint Tortfeasors

Traditionally a pro-rata share

Been replaced by comparative fault

Liability is divided by proportion of responsibility each defendant bears

Strict liability require solvent defendants to pay defaulting dependantsshare

Some make plaintiff absorb the loss in addition to their comparative


24/27

Fault

Assigning Shares of Responsibility

A). Nature of persons risk-creating conduct Includes awareness or indifference

Risk-Creating Conduct

Unreasonable conduct under the circumstances

Extent to which conduct failed to meet applicable legal standard

Circumstances surrounding conduct

Each persons abilities/disabilities

B.) Strength of cause between each persons risk-creating conduct and the harm

Timing of each persons conduct in causing the harm

Comparison of risks created by the conduct Actual harm suffered by the plaintiff

Contributory Negligence

Traditionally

Complete bar to plaintiff recovery must be cause in fact & proximate to bar

Standard of conduct on part of plaintiff which falls below the standard he should conform

to for his own safety

Uses reasonable person standard

Victims have responsibility to mitigate their injuries

Wear seatbelt/helmet even though they dont contribute to defendants

negligence

Last Clear Chance Doctrine

If Defendant is negligent after the plaintiff, plaintiffs negligence is ignored

Plaintiff can receive complete recovery

Comparative Negligence

Pure Comparative

Can recover some percentage from liable defendant regardless of extent of their own

Negligence

Modified Comparative Negligence

Partial recover up to plaintiffs level of culpability for her own accident


25/27

Greater than 50% Approach

If plaintiff more than 50 % negligent than defendant, there is no recovery

50% or Greater Approach

If greater than or equal to 50% negligent than defendant, there is no recovery

Slight Negligence

South Dakota

If plaintiff negligence is slight there is some recovery, otherwise recovery is barred

Comparative Vs. Contributory

Comparative allows for a more equitable allocation of responsibility for injuries

Contributory usually bars recovery

Assumption of the Risk

Plaintiff must

Have knowledge of a particular Risk

Subjective standard

Must voluntarily expose herself to the risk

Assume the Risk

Express

By Contract explicity agrees to accept risk

Invalid as a defense when contrary to public policy

Implied

By plaintiffs conductReasonable

Usually a complete defense

Unreasonable

May overlap into contributory negligence

FireFighters Rule

Preclude recovery for injuries that they are compensated to address

Public Policy

May discourage negligent individuals from seeking assistanceMay be absorbed into comparative fault


26/27

Torts Notes Week 14

Carriers, Host-Drivers & Landowners

Duty of Landowners

Owes no duty to licensee or trespasser except to refrain from willful, wanton orreckless conduct which is likely to injure him

Owes no duty to anticipate or prevent the presence of licensees or trespassers

When trespasser or licensee is discovered in a position of peril, a landowner is

required to use ordinary care to avoid injuring him.

Duty of care arise after the landowner knows or from facts within his knowledge

should know or believe that a trespasser or licensee is on the land

Classification of Entrants

Trespasser

Person who has no legal right to be on anothers land and enters the landw/o express or implied consent of the landowner

Duty owed: no duty of reasonable care owed only avoidance of willful,wanton, intentional injury


27/27

Frequent/Known Trespasser

If approaching a non-evident or artificial condition, he land occupier is obligatedto warn the trespasser if there is a danger of serious bodily harm or death

Invitee:

An invitee is any person invited on the premises for the pecuniary benefitof the landowner or on the premises held open to the general public

Business invitee

Public Invitee

Duty owed: Reasonable care

Licensee: Person on the land with permission but with a limited license to be onthe premises (Ex. Trick or treater)

Duty owed: no duty of reasonable care owed only avoidance of willful,

wanton, intentional injury

Duty of Care Owed to Children

Torts Study Outline Fall 2008

Documents