Torts Dobbs/Outline

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Authors Dobbs
Text Image of Torts and Compensation, Personal Accountability and Social Responsibility for Injury (American Casebook Series)
Torts and Compensation, Personal Accountability and Social Responsibility for Injury (American Casebook Series)
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  • - Morality/corrective justice
  • - Social utility/public policy
  • - Fault and justice
  • - Strict liability and corrective justice
  • - Compensation
  • - Risk distribution/loss spreading
  • - Deterrence
  • - Economic Analysis


  • - Act (affirmative and voluntary)
  • - Intent
    • Single Intent: intent to touch
    • Dual Intent: Intent to touch and intent to harm or offend
    • Is subjective
  • - Contact
    • That is harmful or offensive
    • Knowledge of the contact is not required
  • - Consent plays a big role in this
  • - Cases: VanCamp v. McAfoos, Garrett v. Daily, Cohen v. Smith


  • - A voluntary act
  • - Imminent apprehension
  • - Actual or reasonable belief of harm
  • - Cases: Cullison v. Medley

Transferred Intent

  • - Liability is confined to foreseeable results

False Imprisonment

  • - Voluntary Act
  • - Produces Confinement
    • May be imposed by physical barriers or physical force
    • Threats of physical force may be enough
  • - Intent to Confine
  • - Cases: McCann v. Walmart


  • - Extreme and Outrageous conduct
  • - Intent to cause, or disregard of, a probability of severe emotional distress
  • - A causal connection between the conduct and the injury
  • - Severe Emotional Distress

Torts to PropertyTrespass

  • - An intentional and tangible invasion
  • - Entry into the land
    • Either personally entering the land or causing something to enter the land or airspace

Conversion of Chattels

  • - Intent to exercise substantial domain over the chattel/object
    • ALI substantial domain: extent and duration of control, intent to assert a right to the property, harm done, expense or inconvenience caused

Trespass to Chattels

  • - An act
  • - Intent to Act
    • Bad faith is not required
  • - Injury (actual harm)
  • - Cases: School of Visual Arts v. Kuprewicz


  • - Objective consent:
    • Express (clear yes)
    • Implied (objective manifestation of consent)

Mental Deficiency

  • - Insanity is not a defense for intentional torts

Children/Minors (not a defense)

  • - There is no rule about this, most courts say children under 7 are not responsible

Self Defense

  • - Belief of serious bodily harm
  • - An objectively reasonable person would agree with the Δ’s fears
  • - A response to the action, can only use enough force to neutralize the threat (proportional to the threat)
  • - There is no duty to retreat
  • - Cases: Courvoisier v. Raymond

Defense of Property

  • - Apparent necessity
  • - Reasonable force
  • - Cases: Katko v. Briney, Brown v. Martinez

PrivilegesMerchant’s Privilege

  • - Merchant has reason to believe they stole/reason to stop them
  • - The detention is reasonable for investigation
  • - Cases: Gortarez v. Smitty’s Super Valu


  • - Duty of Ordinary Care
  • - Breach of Duty
  • - Causation (actual and proximate)
  • - Injury

Questions for a negligence claim:

  1. Did the Δ owed the π a legal duty
  2. Did the Δ, by behaving negligently, breached that duty
  3. Did the π suffer actual damage
  4. Was the Δ’s negligence was the actual cause of this damage
  5. Was the Δ’s negligence a proximate cause of this damage or was the damage within the scope of liability of the Δ

DUTYStandards of Care

  • - People have a duty to exercise reasonable care to prevent harm to others
  • - It is the prudent person standard; duty is a matter of law
  • - Cases: Stewart v. Motts 🡪 if the foreseeable danger is high, the reasonable person will exercise a greater degree of care than if the danger is low

Special Cases:

  • - Physical disabilities: level of care a prudent person with the same physical disability would take
  • - Child: standard of care imposed is that of a reasonable child of a similar age, intelligence, and experience
  • - Mental Disability: held to the same standard of someone of ordinary intelligence and knowledge

Open and Obvious Dangers

  • - Use the Learned Hand variables
  • - Does not prevent the π from recovering if the π could be reasonably distracted
  • - This would mean that the Δ would have a duty to render safe


  • - Most courts have moved to a standard of care in favor of general negligence under the circumstances

Landowner’s Duty to Entrants

  • - Trespasser: any person who has no legal right to be on another’s land and enters without their consent
    • Owners have no duty of reasonable care to trespassers
  • - Invitee: any person who is in part for the pecuniary benefit of the landowner or who is on the premises held open to the general public
    • Owner owes a duty of reasonable care to invitees, must warn of dangers and use reasonable care to protect them
  • - Licensee: someone who is on the land with permission but has a limited license to be
    • Owners have no duty to licensees unless they know of a condition that could create an unreasonable risk and do not warn them

Firefighter’s Rule

  • - A firefighter who entered private property in the performance of his job duties he was a licensee and the property owner had a duty to refrain from willful or affirmative acts
  • - Firefighter cannot recover


  • - A Δ is generally liable for misfeasance (negligence in doing something) but not nonfeasance (doing nothing)'
  • - A lot of this focuses/puts emphasis on different acts'

Exceptions to the No-Duty-To-Act Rule

  • - Wakulich v. Mraz: One who voluntarily begins to render services/aid to another is liable for bodily harm
  • - Podias v. Mairs: the burden would have been minimal to call 911

BREACHForeseeability of Risk

  • - This is a question for the jury
  • - Foreseeable means a harm was too likely to occur to justify risking it without added precautions
  • - To act non-negligently is to take precautions to prevent the occurrence of foreseeable risk
  • - Cases: Brown v. Stiel

Risk-Utility Learned Hand Formula

  • - If B<p*l, then="" negligent<="" li=""></p*l,>
  • - B = Burden of taking precaution
  • - P = probability of harm occurring
  • - L = liability of harm
  • - Cases: United States v. Carroll Towing Co


  • - Complying with customs does not mean you can’t be found negligent
  • - If exercising the reasonable standard is greater than the custom, discontinue it

Negligence Per Se

  • - A violation of a statute or regulation constitutes negligence as a matter of law:
    • The violation results in injury to a member of the class of persons which are protected
    • The harm is of the kind which the statute was enacted to prevent

Res Ipsa Loquitur

  • - Was negligence more probable than not
  • - Elements:
    • The event is one which ordinarily does not occur in the absence of negligence
  • - Cases: Byrne v. Boadle (barrel of flour fell on man’s head)


  • - Contributory Negligence: when the π fails to exercise reasonable care and contributes to their own injury
    • Exceptions:
      • ⮚ Rescue Doctrine: unless the person who attempts a rescue acts negligently, they cannot be charged with contributory fault
      • ⮚ Last Clear Chance: a negligent π can recover when they were in a helpless position and the Δ still acted negligently
      • ⮚ Defendant’s Reckless/Intentional Misconduct: π charged with contributory negligence can get a full recovery against a reckless or wanton Δ
      • ⮚ Illegal Activity: illegal activity does not always preclude recovery if it is not serious
    • - Assumption of Risk: π recognizes the risk posed by the Δ’s negligence and willingly encounters the risk
    • - Comparative Fault: apportions damages between the π and Δ based on their relative degree of fault
      • Pure allows proportionate recovery even when the π’s fault is greater than the Δ’s
      • All or nothing is when the π cannot recover unless the Δ is entirely at fault

ASSUMPTION OF RISK (cont.)Express Assumption of Risk

  • - An expressed AR is a contract, subject to ordinary contract rules of interpretation

Primary Implied Assumption of Risk

  • - π knew and understood the risk being incurred and made a choice to do it still, Δ does not have a duty of care
    • Sports participants impliedly assume the risks of dangers inherent to the support

Secondary Implied Assumption of Risk

  • - Δ has a duty of care for the π and breaches the duty in some manner

Traditional Common-Law Duties:CAUSATION

  • - Must satisfy both but-for and proximate causation

Cause-in Fact

  • - For the Δ to be liable, the π must show that the Δ’s negligent act was the cause-in-fact of the π’s harm

But-for test

  • - But-for the Δ’s breach, would the π have been harmed?
  • - The burden is on the π to prove it by a preponderance of the evidence


  • - One must exercise reasonable care to avoid conduct creating a risk of physical harm

Rescue Doctrine

  • - Δ neglignently creates a risk to A
  • - B attempts to rescue A and is hurt in the process
  • - Δ is liable to A, but is Δ liable to B?
    • Danger invites rescue as recue is foreseeable as a matter of law

Proximate Cause

  • - An actual cause that is sufficient to support liability, the proximate cause increases as the cause becomes more direct to the injury
  • - The Δ is liable for the injuries which the Δ directly causes

Directness Test:

  • - If there are no intervening forces between the Δ’s act and the π’s harm
  • - Π can recover when Δ’s actions are the direct cause if their harm
  • - Considers: time, distance, sequence, foreseeability of harm, intervention by other actors


  • - If the harm is in the zone of foreseeable consequence, Δ is liable

Intervening/Superseding Causes

  • - Intervening cause: a factual cause of π’s harm that contributes to their harm after Δ’s tortious act is complete
    • Is foreseeable
  • - Superseding Cause: any intervening cause that breaks the chain of proximate cause between the Δ’s tortious act and the π’s harm

HARMCompensatory Damages

  • - Equal the value of the actual harm caused by the actor
  • - 2 types: pecuniary and non-pecuniary
    • Pecuniary = medical expenses, lost wages,
    • Non-pecuniary = pain and suffering

Punitive Damages

  • - These are intended to act as a deterrent from reckless behavior in the future

Third-Party Damages

  • - Wrongful death
    • Loss of pay that person was bringing in
  • - Loss of Consortium (i.e. spouse or kids)


  • - One who is confronted with a sudden emergency is not negligent if he acts according to his best judgement
  • - What would an ordinary, prudent person do under the same circumstances?


  • - Liability without fault
  • - Article that is sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it with the ordinary knowledge common to the community 🡪 Consumer Expectations Test

Abnormally Dangerous Activities

  • - In the first restatement, it was called ultra-hazardous and changed in the second restatement to ADA
  • - Restatement 2 has a 6 part test:
    • (1) Is it an increased probability of harm?
    • (2) Likelihood that the harm will be great
    • (3) Can you mitigate it with reasonable care?
    • (4) Is it a common use?
    • (5) Inappropriateness of the activity
    • (6) Extent to which its value to the community is outweighed by the danger
  • - Restatement 3 had a 2 part test:
    • Not of common usage, and creates foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all
  • - Blasting is a common example
  • - Defenses: assumption of risk, comparative fault

Products Liability

  • - To recover, the jury must find that:
    • The product was in defective condition and unreasonably dangerous
    • The defect existed when it left the Δ’s control
    • The defect was the proximate cause of the injury

Design Defect

  • - Light pole case
  • - Either use Safer Alternative Design to prove or Risk-Utility Balancing
  • - Safer Alternative Design
    • Practical, cost effective, untaken design precaution that would have prevented the π’s harm
  • - Risk-Utility: 5 Step Analysis
    • Gravity and likelihood of the injury
    • Whether there was a substitute that would not be unsafe, still meet the need, and not be unreasonably expensive
    • Whether there was a SAD
    • Whether the danger of misuse is obvious and readily avoidable
    • Ordinary consumer expectations §402A

Manufacturing Defects

  • - If a product isn’t dangerous normally but is negligently manufactured, it falls within this exception
  • - Whether the
  • - Escola and the exploding Coke bottle

Informational/Warning DefectLIABILITYJoint and Several Liability

  • - Not one Δ pays 100% of the injuries
    • But no tortfeasor is responsible for more than their share
  • - π can enforce their claim against either tortfeasor

Vicarious Liability + Respondeat Superior

  • - Sue the employer for vicarious liability (liable for the employee’s actions)
    • Right of control over the physical conduct of the employee
    • Control does not need to be exercised, can just be the right of the employer
  • - Must be a master/servant relationship (aka employer/employee)
  • - Must prove underlying tort against the tortfeasor
  • - Must be within the scope of employment
  • - Frolic v. Detour
    • Detour is a minor deviation from the mission
    • Frolic is a substantial deviation that takes you outside of the scope of employment (normally for a personal mission)
  • - Rationale is that the employer is better situated to spread the burden of the cost
    • Employer is generally more solvent
  • - Incentivizes employers to invoke more safety measures and be vigilant over practices
  • - Was the act engendered? Was it reasonable to the employer