Torts Outline for All You Sorry Saps in Law School

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					TORTS OUTLINE
INTENTIONAL TORTS I. GENERAL INTENT a. Conduct is intentional if actor: i. Desires to cause intentional consequences of his act, or ii. Is substantially certain unlawful consequences of his act will follow b. Transfer intent—if you throw an eraser at your friend, but hit person next to friend, then intent transfers to the person you actually hit from the person you intended to hit i. Intent encompasses desire to being about an unlawful consequence or substantial certainty that such a consequence will occur (Garrett) c. Certain jurisdictions establish rules regarding age (i.e., younger than 6 or 7 can’t form intent) i. Generally, parents are not liable for a child’s liability d. “Crowded world image”—we consent to everyday contacts that are necessary in everyday life and it is not battery (Wallace) e. Defendants are liable for all of the consequences of the intentional acts, even when they are unforeseen (Vosburg) II. BATTERY a. Battery—intentional contract w/the person of another, either harmful or offensive, to which that person has not consented or for which the defendant has no privilege b. DEFENSES: i. Consent/privilege—battery can be negated if there was consent and scope of consent c. Sovereign immunity/respondeat superior—employer is liable for torts of his/her employee; sovereign (US/State) cannot be sued unless they agree to be sued i. Federal Torts Claims Act—limited waiver of torts and allows U.S. to be sued for torts III. ASSAULT a. Defendant must: i. Engage in conduct ii. Placing Plaintiff in reasonable apprehension (mental piece) iii. Of an imminent harmful or offensive contact to his/her person b. Words alone do not constitute assault; must be combined w/other circumstances c. Reasonableness of fear; how would a reasonable person act in same situation? IV. FALSE IMPRISONMENT a. False Imprisonment—intentional, unlawful, and unconsented to restraint by one person of the physical liberty of another b. Actor is subject to false imprisonment if: i. Acts intending to confine the other person w/in boundaries fixed by actor ii. Act (in)directly results in confinement iii. Other party is conscious of confinement or harmed by it V. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS a. Elements of emotional distress: i. Extreme and outrageous conduct

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ii. That intentionally or recklessly 1. Intent is established by showing plaintiff acted w/desire or purpose to inflict sever emotional distress and was certain or substantially certain it would result from his conduct iii. Causes severe emotional distress (this is big part) 1. distress should be so severe no reasonable person should be expected to endure it 2. medical evidence of severity is technically not required, though courts like to see it 3. most courts do not require a physical manifestation of distress b. Outrageousness four markers: i. abusing power or position by using a position of dominance ii. taking advantage/emotionally harming a plaintiff defendant knows to be especially vulnerable iii. repeating/continuing acts that may be merely offensive and thus tolerable when committed only once, when the plaintiff cannot avoid the defendant’s behavior by leaving iv. committing acts of physical violence/threatening violence of serious economic harm to a person/property in which plaintiff is known to have a special interest TRESPASS a. Trespass: i. A physical intrusion ii. Upon the property of another iii. Without the proper permission from the person legally entitled to possession of the real estate b. Actionable w/out proof of damage b/c intrusion itself forms the basis for liability c. Relevant intent is not to trespass, but it is the intent to: i. Be present on, or ii. Interfere w/the possession or control of property that turns out to be owned by the plaintiff d. TRESPASS TO LAND AND NUISANCE i. Four things for recovery for trespass by intangible 1. invasion affecting an interest in exclusive possession of property 2. intentional doing 3. reasonable foreseeability action could result in invasion of possessory interest of plaintiff 4. foresee substantial damage to res/property e. TRESPASS TO CHATTELS i. Trespass to Chattels—an intentional use or intermeddling w/the chattel in possession of another, such intermeddling occurring when the chattel is impaired as to its condition, quality, or value 1. Damages liability turns on proof of physical harm to plaintiff ii. Trespass to torts—a lesser intentional invasion to a chattel which may interfere w/the use of the chattel, but does not result in full dominion or control

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CONVERSION a. Conversion—an intentional exercise of dominion over a chattel which so seriously interferes w/the right of another to control it that the actor may be required to pay full value for the item; must show actual damage

PRIVILEGES I. CONSENT AS A DEFENSE TO BATTERY a. Having a privilege means even if plaintiff establishes her prima facie case, defendant may avoid liability by claiming that he had the authority to act in the way he did; an action taken under circumstances that justify or excuse what would otherwise be described as tortious b. Two kinds of consent: i. Express—explicit permission ii. Implied—unconscious patient who arrives at emergency room and doctor needs to perform surgery c. THE MEDICAL ARENA i. Person who has received consent to make a particular contact must make sure that he/she does not exceed the scope of that consent (Mohr) d. THE SPORTS ARENA i. Assumption of risk—in sports you assume risk of certain kinds of contacts and certain kinds of injuries (negligent), but not intentional/reckless conduct which goes outside scope of rules (they can recover for those) e. OTHER ARENAS i. Illegal Fighting 1. Consent is not a defense II. DEFENSES TO FALSE IMPRISONMENT a. Consent b. Escape shows plaintiff believed himself to be falsely imprisoned and is a potentially highly valuable indicator of reliability i. Peterson v. Sorlien rule—if one is aware of a reasonable means of escape that does not present danger of bodily/material harm and does not make use of these means, a restriction is not total and complete and does not constitute unlawful imprisonment c. Merchant’s Privilege—if a merchant reasonably believes that a plaintiff has unlawfully taken goods held for sale in his/her store, merchant has a privilege to detain the plaintiff for a reasonable investigation of the facts III. PRIVILEGES TO SUITS ALLEGING TRESPASS TO LAND AND CHATTELS a. Landowners have no privilege to use force intended to cause death or serious bodily harm against an intruder unless intruder himself threatens death/serious bodily harm to occupiers of property b. You may impose on an intruder same force that he/she has directed against you IV. NECESSITY a. Necessity—defense acts by choice in own interest, but interferes w/someone else’s interest b. PRIVATE NECESSITY

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i. Once you have necessity, your necessity trumps another party’s possessory interest c. PUBLIC NECESSITY i. State by virtue of eminent domain has right to take property for purposes of public/government 1. “Taking’s provision”—private property cannot be taken w/out proper justification and compensation; public burden should be shared by public d. Economic analyses (cost/benefit analyses) play an important role in tort law END INTENTIONAL TORTS

NEGLIGENCE—circumstances under which defendant will be liable for creating an unreasonable risk of harm to someone else 1. Duty 2. Breach 3. Factual (but/for) Causation 4. Proximate Causation (foreseeability) 5. Damages DUTY I.

II.

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IV. V.

DUTY a. Individuals have a generalized duty to the world to refrain from actions that psoe an unreasonable risk of harm to other people, a duty which can be limited by the application of other doctrines, like foreseeability b. Duties also arise out of special relationships (i.e., individuals engaged in a common undertaking, like a social venture) THE OBLIGATION TO ASSIST OTHERS a. Malfeasance—affirmative misconduct working positive injury b. Nonfeasance—failure to prevent mischief not created by the defendant c. Foreseeability i. If you know a 3rd party is ready to give aid and negligently prevent them from doing so, you are liable for that harm PRIVITY: SUITS BY THIRD PARTIES a. Privity—mutual or successive relationships to the same right or property, or such an identification of interest of one person w/another as to represent the same legal right i. If no privity, revert back to common law to see if there was some duty we might have found in other circumstances if there was not any privity ii. Privity most clearly exists in contracts 1. Duties can arise by operation of contract, as well as by operation of law PROFESSIONALS (i.e., attorneys) a. Can have duties to third parties (Lucas) DUTY TO CONTROL OTHERS a. Common law said no duty outside of a special relationship

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b. Duties to control others exist outside of professional relationship (Tarasoff) i. Duty to warn and to exercise reasonable care for 3rd party EMOTIONAL HARM a. Negligent Infliction of Emotional Distress i. Emotional Distress is just damages, not the tort itself b. Three broad categories: i. Physical impact as well as an emotional impact 1. Almost always recover here b/c of reliability ii. No contemporaneous physical impact 1. Bystander cases or later, manifestation of shock iii. Unadorned negligent infliction of emotional distress when there is absolutely no physical harm c. Lynchpin is genuineness and if court believes you d. Parties may recover for emotional distress damages in toxic tort fear of cancer cases and for medical monitoring costs in toxic tort cases i. Court may also apply comparative fault e. Closely related, present, and consequently suffers distress INJURY TO UNBORN CHILDREN a. Courts generally allow recovery against a negligent doctor for a child born w/a congenital/genetic disorder for extraordinary medical, educational, an d other expenses flowing from disorder b. Doctors generally not liable to child born as a results of doctor’s negligence c. Parents may recover costs for raising a healthy kid when child was conceived as result of doctor’s negligence and parents sought to prevent conception for economic reasons

NEGLIGENCE I. Negligence—as a synonym for breach of duty is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm II. THE STANDARD OF CARE a. B < PL (Learned Hand formula for cost/benefit analysis) i. If burden is less than probability/risk of harm times loss then you have a duty to prevent the loss ii. Reasonable person standard—one who acts using ordinary care and skill 1. Often looks to what a person knew or should have known iii. Emergency Doctrine—when an actor is faced w/a sudden and unexpected circumstances which leaves little or no time for thought, deliberation or consideration, or causes the actor reasonably to be so disturbed he/she must make a speedy decision w/out weighing alternative courses of conduct, actor may not be negligent if actions taken are reasonable and prudent in the emergency context b. THE REASONABLE PERSON i. Objective one against which purportedly negligent conduct is measured 1. Does not matter is defendant is not smart or did his best to avoid harm

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2. EXCEPTION for people w/physical disabilities, children, and professionals a. People w/disabilities held to a standard of a reasonably disabled person b. Children usually held to standard of a reasonable child, unless they engage in activities that are inherently dangerous, when they can be held to adult standard c. THE PROFESSIONAL i. Held to standard of a reasonable professional in that field who exercises ordinary care 1. Standard of care must be proven by expert testimony (although does not have to be specialist in that field) 2. Or, unless negligence is so apparent, a layperson could see it ii. Informed Consent—negligence actions which focus on the claim that the doctor failed to provide the patient w/sufficient information about risks associated w/a particular line of treatment; plaintiff may prevail even if treatment is in line w/relevant medical standards if: 1. treatment resulted in bodily injury 2. plaintiff would have decided to not consent to the treatment iii. In order to prevail in informed consent, plaintiff must prove: 1. existence of a material risk unknown to plaintiff a. Materiality—significance that a reasonable person in what the physician knows or should know is patient’s position, would attach to the disclosed risks in deciding whether to submit to treatment i. Proven by showing nature of risk and likelihood of its occurrence 2. failure to disclose that risk by physician 3. disclosure of risk would have led a reasonable patient in plaintiff’s position to choose a different course of treatment 4. injury iv. Physicians must disclose personal interests d. CUSTOM i. Evidence of custom may provide standard of care sometimes, but custom is not dispositive ii. Some customs themselves are negligent THE RELATIONSHIP BETWEEN JUDGE AND JURY a. Juries determine whether a particular defendant was negligent, but sometimes the court may decide as a matter of law VIOLATION OF STATUTE a. Standards of care may be derived from statutes b. Unexcused violation of statute may constitute negligence per se (as a matter of law) i. No proximate causation if negligent per se

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c. Statutes which explicitly provide standard of care may be disobeyed if obeying them would actually heighten risk of danger; sometimes reasonable person will disobey a statute d. Defendants may show compliance w/a statute as evidence of reasonable care, but statutory compliance is not conclusive b/c a reasonable person in the same situation may have taken greater precautions than the minimum steps required by the statute e. Violation of licensing statute is not proof of negligence unless violation was proximate cause of injury PROVING THE NGLIGENCE CASE BEFORE THE JUDGE AND THE JURY a. Three kinds of evidence: i. Real—physical ii. Direct—statement from a witness about a fact in issue which he/she actually observed iii. Circumstantial b. CIRCUMSTANTIAL EVIDENCE i. Provides evidence of a fact that is not in issue in order to prove, by inference, a fact that is in issue ii. In order to prove “constructive notice of a dangerous condition”: 1. Defect must be visible and apparent, and 2. It must exist for a sufficient length of time prior to the accident such that defendant would have had a chance to discover and remedy the problem iii. Mode of Operation rule—looks at a business’ choice of a particular mode of operation rather than events surrounding plaintiff’s accident and exempts plaintiff from proving notice 1. Only applies if owner could reasonably anticipate that unsafe conditions would arise on a regular basis c. RES IPSA LOQUITUR i. Specialized rule of circumstantial evidence that permits a jury to make an inference of negligence in absence of any real/direct evidence that would tend to prove defendant’s breach of the standard of care 1. Accident must be one that ordinarily does not occur in the absence of negligence 2. Instrumentality alleged to have caused the plaintiff’s injury was in the exclusive control of the defendant, or using Restatement formula, was “responsible cause” of the injury 3. Plaintiff has negated other possible explanations for the event ii. Can apply when multiple defendants are potentially to blame for an injury and under negligence and strict liability theories of recovery

CAUSE IN FACT I. CONCURRENT CAUSES II. FAILURE TO IDENTIY THE SPECIFIC ACTOR III. DIFFICULTIES IN PROOF OF CAUSATION

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PROXIMATE CAUSE I. BASIC THEORIES II. INTERVENING CAUSES III. ECONOMIC LOSS IV. DUTY VS. PROXIMATE CAUSE MULTIPLE DEFENDANTS: JOINT AND SEVERAL LIABILITY I. JOINT TORT-FEASORS II. TORT REFORM THE LIABILITY OF LANDOWNERS I. LIABILITY TO THOSE WHO ENTER ON THE LAND a. TAXONOMY ON PLAINTIFFS b. NATURAL AND UNNATURAL CONDITIONS ON AND OFF THE LAND II. ADDITIONAL CATEGORIES OF PLAINTIFFS a. ATTRACTIVE NUISANCES, ARTIFICIAL CONDITIONS, AND CHILDREN b. PUBLIC EMPLOYEES: FIREFIGHTERS AND POLICE OFFICERS c. LANDLORDS AND TENANTS d. CRIME e. BUSINESS ESTABLISHMENTS AND DANGER TO THE PUBLIC III. DEFENSES AND PLAINTIFFS CONDUCT a. COMPARATIVE NEGLIGENCE b. ASSUMPTION OF RISK c. TAXONOMY OF PLAINTIFFS: THE MODERN APPROACH DAMAGES I. PUNITIVE DAMAGES II. PECUNIARY AND NONECONOMIC DAMAGES WRONGFUL DEATH AND SURVIVAL STATUTES

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