Torts (short outline)

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Intentional Torts[edit | edit source]

Intent – the person acts with the intent of providing that consequence or is substantially certain the consequence will result


Doctrine of transferred intent: when D intends to damage one person and ends up damaging another

Officious intermeddler: P has no business being in the situation


1. Battery

An actor is subject to liability to another for battery if

1. (a) He acts intending to cause a harmful or offensive contact with the person of the other or a third person or something intimately attached to their body, or an imminent apprehension of such a contact, and


2. (b) an offensive contact with the person of the other directly or indirectly results.


Eggshell Plaintiff (still responsible though humpty’s fragile): take the plaintiff as you find them – with pre-existing conditions


2. Assault – reasonable apprehension of imminent battery

An actor is subject to liability to another for assault if

(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and


(b) the other is thereby put in such imminent apprehension.


3. False Imprisonment

An actor is subject to liability to another for false imprisonment if

(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and


(b) his act directly or indirectly results in such a confinement of the other, and


(c) The other is conscious of the confinement or is harmed by it.


4. Intentional Infliction of Emotional Distress

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.


Four elements must be proved

1. Conduct must be intentional or reckless

2. Conduct must be extreme and outrageous

3. There must be a causal connection between the wrongful conduct and the emotional distress;

4. The emotion distress must be severe.


5. Trespass to Land

One is liable to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally

(a) Enters land in the possession of the other, or causes a thing or third person to do so


(b) Remains on the land, OR


(c) Fails to remove from the land a thing which he has the duty to remove.


Not a trespasser if you have a valid privilege like necessity

6. Nuisance

An unreasonable interference with a right common to the general public or a non-trespassory invasion of another’s interest in the private use and/or enjoyment of land.


7. Trespass to Chattel

Damage to personal property or temporary interference with its use even though the possessor is not permanently deprived of it.

Liability is only imposed on the tortfeasor if

(a) He dispossesses the other of the chattel, or


(b) The chattel is impaired as to its condition, quality, or value, or


(c) The possessor is deprived of the use of the chattel for a substantial time, or,


(d) Bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.


8. Conversion

The wrongful possession or disposition of another's property as if it were one's own; an act or series of acts of willful interference, without lawful justification, with an item of property in a manner inconsistent with another's right, whereby that other person is deprived of the use and possession of the property.


Elements to be considered

A. The extent and durations of the actor’s exercise of dominion or control;

B. The actor’s intent to assert a right in fact inconsistent with the other’s right of control.

C. The actor’s good faith;

D. The extent and duration of the resulting interference with the other’s right of control;

E. The harm done to the chattel;

F. The inconvenience and expense caused to the other.


Common Defenses (Privileges) to Intentional Torts


Burden is on D to prove existence of a privilege

Mistake of fact is not a defense to intentional torts unless it’s a mistake in self defense or it’s reasonable


1. Consent

If the victim of a harmful or offensive touching manifests consent to the contact, the defendant usually is not liable for causing it.

Consent is a willingness in fact for conduct to occur.

Consent can be implied.


Being in public is a consent to some touching


Medical care providers may act in the absence of express consent if

(a) The patient is unable to give consent (unconscious, intoxicated, mentally ill, or incompetent)

(b) There is a risk of serious bodily harm if treatment is delayed

(c) A reasonable person would consent under the circumstances, AND

(d) The physician has no reason to believe this patient would refuse treatment under the circumstances.


INFORMED CONSENT:

A doctor has a duty to inform the patient of the risks of the procedure and available alternatives. Three tests of informed consent:

- What the ordinary qualified doctor would disclose to the patient

- What the reasonable patient would want to know

- What the particular patient in this case, given the circumstances, would want to know because of personal autonomy and self-determination


2. The Privilege to Use Force in Self Defense

Only authorizes the use of reasonable force to prevent an impending battery or to stop one that is in progress.

WORDS ARE NOT SUFFICIENT TO REACT TO


3. The Privilege to Use Force in the Defense of Others

One may use reasonable force to protect another so long as they reasonably believe that the person is about to be a victim of battery.


4. The Defense of Property

An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another’s intrusion on the actor’s land or chattels IF:

(a) The intrusion is not privileged or the other intentionally or negligently causes the other to believe it’s not privileged


(b) The actor reasonably believes the intrusion can be prevented or terminated only by the force used, AND


(c) The actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made.


5. Recovery of Property

The privilege of an owner dispossessed of a chattel to use force to recapture exists only when there is a momentary interruption of his possession.


Fresh Pursuit Privilege

Limited to prompt discovery of the dispossession, and prompt and pursuant efforts to recover the chattel. An undue lapse of time during which the pursuit has not been commenced, or has come to a halt, will mean that the owner is no longer privileged to fight himself back into possession, but must resort to the law.


A resort to any force will not be justified until a demand has been made for the return of the property.


The privilege is limited to force that is reasonable under the circumstances.

Required Elements

1. Immediate

2. In fresh pursuit

3. Make a verbal demand first

4. One is actually entitled to the chattel


Shopkeepers Privilege

One who reasonably believes that another has tortuously taken chattel upon his premises, or has failed to make due cash payment for a chattel purchased or service rendered there, is privileged, without arresting the other, to detain him on the premises for the time necessary for a reasonable investigation of the facts.


6. Necessity

Entries on Land

Public Necessity: One is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting imminent public disaster.


Private Necessity: One is privileged to enter or remain on land in the possession of another if it is or reasonable appears to be necessary to prevent harm to:

(a) The actor, his land, or chattels

(b) The other or a third person

(c) Though not a traditional tortfeasor, he is liable for the harm done.


7. Authority of Law

Police officers, military personnel, prison officials, regulatory inspectors, or officials at mental health facilities may act under authority of law, engaging in conduct that otherwise would be tortuous.


Generally held that the officer is privileged if the warrant is “fair on its face” even though there may be errors and irregularities in its issue that affects the jurisdiction of the court in the particular case.


8. Discipline

Privilege of exercising reasonable force and restrain upon those under a person’s control. Considerations: age, sex, condition of child, nature of offense/motive, necessity


9. Justification

Generally, restraint or detention, reasonable both under the circumstances and in time and manner, imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property, in one’s lawful possession or custody, is NOT unlawful. (i.e. the bus driver protecting kids)


Negligence[edit | edit source]

The omission to do something that a reasonable person would do, or doing something that a reasonable person would not do


Standard of care: reasonable person in same circumstances

Is both (1) the name of a tort cause of action, and (2) the term given to conduct which falls below the standard which the law requires. The elements of a negligence cause of action are: (DBCI)


(1) DUTY - A duty by the defendant to act or refrain from acting. P must prove that D owes a duty to him – the scope of the duty is determined by the person’s circumstances. An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.

- Special relationship (working relationship etc)

- A plaintiff always has a duty to themselves and a duty to mitigate injuries once they have occurred.


(2) BREACH - A breach of that duty by D’s failure to conform his conduct to the required standard of care (either the reasonable person under like circumstances, or professional). Unreasonable exposure to risk of harm

(a) If physically disabled, then a reasonable man with the same disability. If child, then reasonable child with same experience/capacity, age, education, intelligence

(b) The professional standard is a reasonable professional with similar experience/expertise. This can be compared to a reasonable local, statewide, or national reasonable standard depending on how the professional presents his credentials.


Negligence Per Se

Using a penal statute as a civil standard. A doctrine whereby an act is considered negligent as a matter of law because it violates a statute. If the judge agrees that this is the case the P does not need to prove duty, and the focus of the case becomes whether the statute was violated without an acceptable excuse.


To invoke Negligence Per Se, the plaintiff must prove: Class, interest, hazard, harm

(1) P must be part of a class that the statute meant to protect

(2) D must have violated the ordinance

(3) P must have been proximately harmed by D’s violation

(4) P suffered the type of harm that the ordinance was designed to protect them from.

Rebuttable presumption – presumption may be rebutted by showing that the violation was execused under the facts and circumstances


When an action is not foreseeable then there is no negligence.


Res Ipsa Loquitur

The fact-finder may infer that the D has been negligent when that accident causing the P’s harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the D is a relevant member and the instrumentality is in the exclusive control of the D

Requirements

(1) The Requirement That the Accident Ordinarily Would Not Happen Without Negligence

There cannot be common explanations for the occurrence that do not involve negligence.


(2) The Requirement That the Negligence, If Any, Is Attributable to the Defendant.

It is not enough to show that someone’s negligence probably caused the harm. The evidence must point to the defendant as the negligent party.


(3) The Requirement for the application of Res Ipsa that “the event must not have been due to any voluntary action or contribution on the part of the plaintiff”.


(4). The defendant must have been in exclusive control of the instrumentality of whatever caused the injury.

Not a strict rule, more sufficient control.


(3) CAUSE - A sufficient casual connection between the negligent conduct and P’s injury (see actual and proximate cause); and [breach was actual and proximate cause of the injury]

Actual Cause – the breach of duty in fact more likely than not caused the harm

1. “But For” Causation – Sine qua non

The defendant’s conduct is a cause of the event if the event would not have occurred “but for” that conduct: conversely, the defendant’s conduct is not a cause of the event if the event would have occurred without it.


2. “Substantial Factor” Causation

Where two or more defendants act negligently and either’s act would suffice to cause the plaintiff’s injury.


3. Loss of Chance Doctrine

Only applies in wrongful death cases where a malpractice did not directly lead to an injury per se, but lessened the odds of recovery. Can only recover percentage of award that corresponds to the reduction of chance that occurred.


4. Alternative Liability/ concurrent causes kinda

If two wrongdoers were equally negligent to the plaintiff and it is unclear whose negligence actually caused the injury, it should not rest on the plaintiff to determine which man caused the injury since they are in a more knowledgeable position. This shifts the burden of proof to the defendant to prove that they were not the cause of the injury.


5. Market Share Liability

Allows a plaintiff to establish a prima facie case against a group of product manufacturers for an injury caused by a product, even when the plaintiff does not know from which defendant the product originated. The doctrine apportions liability among the manufacturers according to their share of the market for the product-giving rise to the plaintiff's injury.

Requirements

(1) The defendants in court must constitute substantially all of the market.

(2) The products must be fungible.

(3) The defendants (potential tortfeasors) must all have been in the market within the specific timeframe surrounding the incident.

(4) The inability to point to a specific tortfeasor must not be the plaintiff's fault.


Proof of Causation: P must prove that more likely than not, the D was a substantial factor in bringing about the result


Concurrent causes: The “But for” test applies where several acts combine to cause the injury, but none of the acts standing alone would have been sufficient


JOINT CAUSES: - SUBSTANTIAL FACTOR TEST:

Where several causes concur to bring about an injury – and any one alone would have been sufficient to cause the injury – it is sufficient if defendant’s conduct was a substantial factor in causing the injury.


Proximate Cause – close causal link between D’s negligence and P’s injury

The cause that produces the injury through the natural and continuous sequence of events unbroken by a superseding cause (should D be liable?)


An intervening cause MUST be superseding to cut off liability


Intervening Cause

An event that comes between the initial event in a sequence and the end result, thereby altering the natural course of events that might have connected a wrongful act to an injury


Indirect results of D’s act.

· Occur after the D’s negligent act.

· Do not relieve D of liability, unless they are both unforeseeable and bring unforeseeable results.


Superseding Cause

An intervening act or force that the law considers sufficient to override the cause for which the original tortfeasor was responsible, thereby exonerating that tortfeasor from liability.


In Re Polemis - Direct Cause Test

The defendant is liable if his conduct is the direct cause of the plaintiff’s injury as opposed to a remote cause.

Cardozo - Foreseeability Approach - PALSGRAF

Duty to avoid injuring others only extends to those risks the actor should anticipate from her negligent act. Those who you would expect to be in the zone of danger.

Andrews – Hindsight Approach

You owe a duty to the world as a whole not to behave unreasonably. The question of whether proximate cause extends (should be cut off) to the injury is a separate question for the jury. The law of causation is foreign to each case.


RESCUE DOCTRINE: Rescue is always foreseeableAllows an injured rescuer to sue the party that caused the danger requiring the rescue in the first place


4) INJURY - Actual harm – harm, which the law says, is measurable and compensable in monetary damages.


In order for the P to recover, they must prove each of the four elements.


If burden of taking precautions is less than the probability of an accident multiplied by the gravity of injury, defendant has a duty to take precautions.


Negligence Formula - United States v Carroll Towing Co. - B<PL

B= burden or cost of untaken precaution

P= probability of the accident occurring if the precaution is not takenL=the loss that would result if the accident were to occur

If the burden to rectify the situation is less than the probability of an injury from occurring and the cost to fix/remedy the potential plaintiffs then there is negligence. Human life however cannot be monetized and the burden is always less. The greater the risk of harm to others that is created by the person’s chosen activity, the greater the burden or duty to avoid injury to others becomes.


A person is not liable for negligence if he takes all reasonable precautions against the foreseeable harm


Duty of care owed to foreseeable plaintiffs

Rescuers are foreseeable as long as the rescue is not wanton


Aggravated negligence – as danger increases actor is required to exercise more caution


PROOF OF NEGLIGENCE

P only needs to show that a preponderance of the evidence is in his favor (51%).

Circumstantial Evidence and Presumptions:

· Proof of one fact, or group of facts, that gives rise to an inference by reasoning that another fact must be true.

· Conclusive presumption – irrebuttable, a matter of law

· Rebuttable presumption – something is presumed true until evidence is presented to show otherwise

· Inference – common sense, negligence can be inferred and can be assumed it caused the injury

· Prima facie negligence – presumption of negligence

· Circumstantial evidence: no evidence but from fact A, one can presume B


CONSTRUCTIVE NOTICE:

· P must prove that the condition existed for a sufficiently long time that D should have known about it.

· Unless P shows a sufficient probability of negligence, the court must direct a verdict for D.


P need not show actual knowledge, only needs to show that a sufficient amount of time had passed to charge the D with constructive knowledge. (Question for jury).


Negligent Infliction of Emotional Distress

Defendants have a duty to avoid infliction of emotional distress that is reasonably foreseeable, including infliction of such distress on indirect victims.

Contemporary – Zone-Danger-Rule – Thing v. Lechuza

(a) places the other in immediate danger of bodily harm and the emotional disturbance results from the danger; OR


(b) occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional disturbance


(c) Severe distress must occur as a result


Factors of foreseeability/recoverability (Dillon/CA Rule)

(1). Whether the plaintiff was near the scene of the accident.

(2). Whether the shock resulted from a direct sensory and contemporaneous observance of the accident.

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


Duty to Those on the Premises/PREMISES LIABILITY

Duty land possessors owe to persons injured on their land

You need to look at

(1) Status

(2) Notice

Knowledge of person and dangers on the property

(3) Burden

Burden to warn, or rectify potential hazard.


Trespassers

Those who enter onto the premises in a tortuous manner. w/o consent


Duty: Generally, a duty to a trespasser is only required if there is a dangerous man-made condition. If there are known trespassers then you have a duty to exercise reasonable care.


Invitees

A person who is on the land for purpose directly or indirectly connected with landowner’s business dealings


Duty: Duty to warn of any hidden dangers you know of or that cannot be fixed Furthermore, property owners assume a duty[1]to[2]rescue an invitee who falls into peril while visiting the property.


An invitee is only an invitee within the scope of permission granted by the landowner.


Public Invitee: a person who enters land in the possession of another of which the property is held open to the public and no business purpose is involved.


Licensees

Licensee is a person who enters certain property with express or implied permission and no business purpose is involved. A social guest


Duty: You have a duty to warn of any hidden dangers that you know of or reasonably should have known of on your premises, and you have a duty not to engage in any willful or wanton behavior while they are on the premises.


Defenses


Contributory Negligence

If the plaintiff’s own negligence contributes to their own injury they are barred from recovery. – Only 4 states.


LAST CLEAR CHANCE: If D has an opportunity to avoid the accident after the plaintiff no longer had such an opportunity, and the defendant did not properly avoid the accident, he is liable


Used by P to rebut contributory negligence.


Helpless: objective standard. D is liable if he knew or should have known P was in danger.

Inattentive: subjective. In peril due to contrib neg from which he could reasonably have extricated himself. D must have actual knowledge of P’s danger.


Joint Tortfeasors

Joint tortfeasors are persons who partake in a single indivisible injury, through respondeat superior, acting in concert

· Joint tortfeasors are jointly and severably liable for the damage they cause (P elects to seek entire amount from any one or all of the defendants).


In a negligence case, the joint tortfeasor sued may obtain contribution from another joint tortfeasor not sued by P.

· The right to contribution belongs to the tortfeasor.


Although both are liable, P can only collect up to the amount of the judgment, whether partial from both (joint) or in total from one (several liability).


When two or more parties engage in a common act of negligence, all parties may be liable even though only one party was immediately involved in causing the injury.


Comparative Negligence

Weighs what percentage each party contributed to the accident. What is being compared is the degree of negligence, not causation.

Pure Comparative—the plaintiff can recover only for the percentage that they were not negligent for. Could be as little as 1%.

Modified (Colorado)—if the plaintiff is less negligent than the defendant (49% or less), they can recover for what percentage the defendant was negligent for.

Modified (Oregon)—if the plaintiff is not more negligent than the defendant (50% or less, they can recover for what percentage the defendant was negligent for

Recovery is generally denied when both agents engage in an unlawful an dangerous act.


Assumption of Risk

An affirmative defense where must prove that P knew of the risk, they understood the magnitude and voluntarily assumed the risk. Express – written or orally Implied – implicitly by actions


Respondeat Superior 


An employer will be held liable for the torts committed by his employees so long and the employee was acting within the scope of his employment (can be used for contribution or indemnification).


Damages[edit | edit source]

Nominal

Minimal money damages awarded to an individual in an action where the person has not suffered any substantial injury or loss for which he or she must be compensated.


Compensatory

Provide a plaintiff with the monetary amount necessary to replace what was lost, and nothing more. (Includes lost wages/ medical care/ parasitic damages, etc.).


Loss of Consortium - is a term used in the law of torts that refers to the deprivation of the benefits of a family relationship due to injuries caused by a tortfeasor.


Punitive

Monetary compensation awarded to an injured party that goes beyond that which is necessary to compensate the individual for losses and that is intended to punish the wrongdoer.