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					Torts

Tort Law Overview
 

Torts are non-contractual civil wrongs. Torts include:
  

negligence, intentional acts and situation where the law imposes liability without regard to fault

  

Tort law is one of the oldest forms of law and is derived from English common law. Today most tort law is still case law. Many acts that give rise to civil tort liability also are covered by the criminal law. Thus, can be liable civilly to another person and charged with a crime.

Intentional Torts




An intentional tort is one in which the party committing the tort intends to do the act, knowing it will cause an injury. Intentional torts include:
 


     

assault, battery, false imprisonment, defamation, invasion of privacy, intentional infliction of emotional distress, misrepresentation, conversion, and trespass.

Assault and Battery
Assault and battery are two distinct torts.  An assault is an intentional act that causes fear or apprehension of some immediate harmful or offensive contact or touching of another.  A battery is an intentional harmful or offensive contact or touching of another  Often will be both an assault and a battery


Hypothetical


Which of the following are battery?
 Joe

sees someone who he thinks is an old friend. He is mistaken and runs up and hugs a stranger.  Joe gets mad at his roommate and punches him.  Joe is a mugger. In the mall he grabs a woman’s purse and tugs it out of her hand.  Joe’s roommate’s girlfriend is asleep. Joe sneaks up and kisses her on the check. She doesn’t know it has happened until she wakes up and he tells her.  Joe is at the doctor for a checkup. The doctor gives him a flu shot without getting his permission first.  When Joe is asleep his girlfriend cuts his hair because she is tired on him looking like a sasquatch.

Battery


Battery is any offensive contact.
 Thus,

unauthorized medical treatment  Non-consensual, offensive touching, such as patting someone’s behind

Plaintiff’s person includes his body and those things in contact or closely connected to it such as clothing, purse, etc.  The offense is the touching, thus need not have been aware of it at the time.


 



Battery occurs if either physical harm or the touching is offensive. Physical harm is broadly defined to include any physical impairment of the condition of the body, such as a cut, bruise, burn, even if beneficial. Also includes touching which is hostile, offensive or insulting, such as poking with a finger in anger, angrily knocking off one’s hat, dousing one with water, cutting hair or an unwanted kiss.

Hypothetical
Dr. Joe is doing surgery on Edna’s knee. He notices that she has a mole on the back of her leg, so he takes it off. It turns out that is was cancerous. Edna is upset because it looked like Albert Einstein and made her popular in the physical lounge.  Joe intends to knock Bill’s hat off. Because Bill moves suddenly, Joe ends up hitting him in the eye.


Joe intends to hit Bill with a water balloon. Bill ducks and the balloon hits Pedro.  Joe intends to scare Bill by pretending to throw a water balloon at him, but it slips and it actually does hit him.


Intent
The action must have been intended, but defendant need not have intended any harm.  It is not a defense that the defendant only intended a joke or a compliment, or even to render assistance.  Thus, surgery without consent will be a battery.


Transferred Intent
 



If intend the act, does not matter that you did not intend harm If you intend simply to commit an assault and threaten to hit someone and due to a mistake in judgment you actually hit someone, lack of intent is not a defense. Did intend to commit a tort. Also, if you intend to hit A and he ducks and you hit B, still a battery because intend to commit a battery.

Hypothetical






Joe is at Riverfest and is in a big line to buy deep fried squirrel on a stick. Because the line is so impatient, he is repeatedly bumped and jostled by the people around him. Battery? Joe’s friends are very affectionate and always hug each other. Joe is standing in the hall and one of his friends sees him and gives him a hug without his permission. Battery? Joe plays football. In violation of the rules of football, an opposing player grabs his facemask and uses it to drag him to the ground. Battery?

Consent



 

Obviously, if P has expressly consented, there will be no assault. The law also implies consent in certain circumstances. In a crowded society, some unpermitted contact is inevitable, customary and reasonably necessary. Consent to certain kinds of contacts may also be assumed where there is some prior relationship between the parties.


Thus, where reasonable and customary, given the time, place and circumstances of the contact and the relationship of the parties, a privilege will ordinarily exist, unless and until plaintiff gives notice to the contrary.

Hypotheticals




Joe likes to play the flinch game. He throws a punch at a freshman in the hall, but pulls back at the last minute. The freshman is a tough hombre and isn’t afraid of Joe’s wimpy punch, although he does think that Joe really is going to hit him. Assault? Joe tells a freshman in the hall. “I’m going to hit you the minute you walk out of 2nd hour.” The freshman believes him. Assault?

Assault


As assault is an act which arouses in plaintiff a reasonable apprehension of an imminent battery.
 Apprehension

is different from fear. Must perceive the threat, not necessarily be afraid of it.  The contact must be perceived as imminent. Thus, mere words do not constitute an assault.

Hypotheticals


 

Joe goes into the bank with an unloaded gun. He points it at the teller and says “give me the money or I’ll shoot.” Assault? Joe goes into the bank without a gun and tells the teller the same thing. Joes goes into the bank without a gun, but says to the teller “give me the money or I’ll shoot.” He then reaches into his pocket where he has a bulging wallet. The teller think he has a gun.

Overt Act


 

Must be some overt act, but words can give character to an otherwise innocuous act and constitute an assault. Reverse is true: A threatening act may be made innocuous because of the accompanying words. There must be an apparent present ability to carry out a threat. Actual inability isn’t important. Thus, threatening with an unloaded gun is an assault.

False Imprisonment
The action for false imprisonment enforces the right to be free from wrongful confinement.  False imprisonment occurs if one is intentionally confined or restrained by one who has no legal right to do so.


Hypotheticals
 



Joe is in the astrodome. His buddy as a joke locks him in. Joe is in the middle of a corn field. Farmer Brown sneaks up to him and tells him that if he moves, he will shoot. Farmer Brown keeps him in the field for 2 hours. Joe is falsely accused of shop lifting. The manager of Wall Mart locks him in a second floor office. The window is open and Joe can leave by jumping out into a dumpster.

Confinement








The area of confinement need not be small. It is enough that the plaintiff is prevented from leaving a given area, such as a room, car or building. Confinement must be total and there must be no reasonable or safe avenue of escape known to him. Confinement may be by physical barriers, physical force or threats of force, express or implied. It may also be duress sufficient to vitiate consent, such as where defendant threatens to harm another or plaintiff’s property.



While Joe is sleeping in a hotel, the manager, thinking he is a bank robber, padlocks the outside of his room. Before Joe wakes up, the manager discovers that the bank robber is in a different room and removes the lock. Can Joe sue for false imprisonment?

My occur when plaintiff once properly restrains is now entitled to leave and defendant intentionally fails to perform his legal duty to release plaintiff or show him the way out.  The harm is the knowledge of the false imprisonment and the mental anguish of not being able to freely leave.

 Thus,

must be aware of the restraint.

False Imprisonment Defenses
  

If confinement is imposed under color of legal authority, it will be called false arrest. Mistake in identify or mistake as to justification is not a defense. Most states have created a privilege for stores to detain people for a reasonable time to determine whether they have shoplifted if a reasonable basis for suspicion and to hold them until the police arrive if they find evidence of shoplifting.

Trespass


Trespass is the unauthorized interference with or encroachment onto the “real property” of another.

Trespass Hypothetical
Joe gets lost. He thinks he is on his friends land, but ends up by accident on Farmer Brown’s land.  Rule: Mistake as to ownership doesn’t matter. The injury is intentionally entering the land of another.


Joe and Ben are playing catch. Their ball accidentally lands on Farmer Brown’s land. They enter for the purpose of retrieving it.  Joe is burning leaves. The smoke from the fire wafts onto Farmer Brown’s Land.  Rule: The trespass can be on an object and can be indirect, such as smoke or water


Trespass
Joe sees a brush fire on Farmer Brown’s land. He is afraid that it will burn out of control. Joe goes onto the land and puts it out. Can Farmer Brown sue for Trespass?  Rule: Actually damage to the property is not required. Are liable for nominal damages even where no injury to the property occurred unless the trespass is unintentional.


More Hypos
 





Joe has a big oak tree. Some of the branches hang over the fence and are over but not touching Bob’s yard. Scrape and Dig mining company has a coal mine. As the mine follows the coal seam it ends up under Joe’s property 75 feet below the surface. Joe buys a personal blimp off the internet and floats through the neighborhood 40 feet in the air. If he goes over Bob’s property is he trespassing? Rule: Property includes the area under and above the land at least as high as one can reasonable use.

Who Can Sue?
Joe rents his house from Stanley. Bob enters the property without permission and trespasses. Can Joe sue? Can Stanley?  Rule: Only those rightfully in possession can sue for trespass. Thus, if tenant on land and neighbor trespasses, the tenant can sue, but the landlord cannot.


More Landlords




Stanley enters Joe’s rental house without Joe’s permission because Stanley is concerned that the bathroom might need to be painted. The lease requires him to get permission to enter. Has Stanley trespassed? Rule: A landlord who enters the land when not given permission by the tenant or allowed by the lease can themselves commit a trespass.

Trespass to Property and Conversion
Can be trespass to personal property where one interferes with the possession of personal property.  Where the trespass is significant enough to significantly prevent possession, use or enjoyment, may be a Conversion which will require the defendant to pay the full value of the property.


Conversion


Defined as intentional conduct which deprives another of his property permanently or for an indefinite time or the intentional exercise of dominion or control over a chattel which is inconsistent with another’s property rights.

Factors in Determining a Conversion


The Restatement looks at the following factors to determine whether the interference is so significant as to constitute a conversion
extent and duration of the defendant’s dominion or control  The defendant’s intent to assert rights which are inconsistent with those of the plaintiff  The defendant’s good faith  The harm done to the chattel  The inconvenience and expense caused
 The



Remedy for conversion is the replacement cost of the item or return. The defendant is forced to buy the item if the plaintiff chooses.

Defamation


Defamation is the unprivileged publication of a factual statement that is untrue and injurious to a person’s reputation.

Defamation
Matt posts on his web site that Alex frequently wears women’s underwear. Matt’s site isn’t very popular and nobody reads the post. Has Matt committed liable.  What if one person reads it?  Rule: Must be a publication to a third person


Defamation, cont.
  



Matt says that Alex is rumored to be a communist. Matt says that Alex acts like a communist Matt says that Alex’s opinions are even stupider than those of a communist. Matt says that Alex’s signing in the school play was so execrable that it made him think of a feculent pond
 Must

be a statement of fact. Opinion, prediction and speculation are not statements of fact

Joe is married to Irene, but is secretly having an affair with Monica. Edward finds out and to embarrass Joe tells everyone at Joe’s church.  Rule: Must be untrue. No mater how embarrassing or damaging, not defamation if the statement is true






Hustler Magazine is upset with Jerry Falwell and the Moral Majority for their crusade for family values. The magazine publishes a cartoon depicting Falwell drunk and having sex with his own mother in an outhouse. Defamation? Rule: Must be believable and reasonably understood as a statement of fact. Satire, that is obviously not intended to be taken seriously, will not be the basis for defamation.

Defamation and the News Media
In the ordinary case, good faith is not a defense. If make a false statement, are liable.  News media is not liable for untrue statements about public figures unless made with malice or a reckless disregard of the truth.  News Media not liable for false statements about private figures unless negligent.


What Statements are Defamatory


A communication is defamatory if it tends to harm plaintiff’s reputation in the community, either by lowering others estimation of him or deterring others from associating or dealing with him.
 Exposing

plaintiff to hatred, ridicule, calling into question morality or integrity; impairing financial reputation; imputing that plaintiff has disease or other physical or mental defect, etc.

Reputation
Floyd is the head of the American Association of Atheists. He makes a lot of money from giving speeches on atheism. A magazine refers to him as a good, upstanding, god-fearing Christian.  Bubba is the supreme wizard of the KKK. A magazine falsely states that he has many African American friends and supports racial equality.


Loss of Reputation
Normally, it is sufficient if plaintiff is defamed in the eyes of any substantial and respectable group, even though a small minority of the community.  However, it is not defamatory if the minority’s views on that subject are so antisocial or extreme that it would not be proper for the courts to recognize them.


Who can Sue?






Joe says that all the doctors in town are drunken quacks who have repeatedly committed malpractice. Can he sue? Joe says that Wal-Mart intentionally mislabels its clothing to hide the fact that it is made by orphans in sweat shops. Can a corporation sue? Joe’s dad dies. Two days later the newspaper confuses Joe’s dad with someone else and publishes an obituary that states that he was married and divorced four times before he kicked his addiction to heroine. Can Joe sue for the damage to his dad’s reputation?

Who Can Be Defamed
   

Suit can be brought by person, corporation or partnership. Can’t defame the dead, even if causes emotional distress to living relatives. Statements about groups generally do not give rise to a claim, unless the group is small. All the doctors in this town are quacks. No action if 12 doctors. Might be one if only three.

Are These Statements Defamatory?
   

Jim lives in Pleasantville
 (Pleasantville

is the state mental hospital)

Jim was kissing Debra behind the barn.
 (Jim

is married to Helen) had called in sick to work)

Jim was boating at the lake yesterday.
 (Jim

Jim is 13
 Jim

is the star of the 11 and under basketball league

Context
A statement can either be defamatory on its face or defamatory due to extrinsic circumstances.  If the later, must show that those who heard it understood the extrinsic circumstances and therefore understood the damage to reputation.


Libel v. Slander
Libel is printed. Slander is spoken  In most states, do not have to prove actual damages to bring a claim for libel.  In most states, must prove actual damage (lost business or other lost opportunity) to recover for slander unless the slander falls into one of four categories called defamation per se.


Defamation Per Se
Statement imputes that P has committed a crime  Statement imputes that P has an STD or other loathsome and communicable disease  Statement imputes to plaintiff conduct or condition that would affect his fitness for the proper conduct of his business  Statement imputes lack of chastity.


Invasion of Privacy
The law recognizes three types of invasion into the privacy of another  One type is public disclosure of private facts.


Joe is married to Irene, but is secretly having an affair with Monica, the minister’s wife. Edward tells everyone at the church.  When Joe was 13 he was molested by a priest. He tells his therapist. The therapist’s secretary reads the medical records and posts the information on her web site.


Public Disclosure of Private Facts


   

Rule: One is liable for publicizing some private fact about the plaintiff if the fact publicized would be highly offensive to a reasonable person and is not a matter of legitimate public concern. Fact must become widely known Need not be false Information must be private and be embarrassing, humiliating or offensive. Right to keep private is balanced against public’s right to know. Thus, less protection if there is a valid public interest

Appropriation Of Name Of Likeness


This is a species of conversion. One has the right to control how their name or likeness is used for gain.

Hypotheticals






Pepsi tries to broaden its appeal and uses a photo-shopped picture of the Pope drinking Pepsi. Joe operates a non-profit charity to raise money to buy football uniforms for poor kids. He uses a picture of Drew Bledsoe on his posters without permission. A TV station plans to do a series of reports on March Madness. As part of the promos it uses without permission footage of Bill Self coaching

Rules
If advertiser uses the picture of a star athlete without permission, would give rise to a cause of action.  Is true even if not for commercial gain.  Can’t use likeness of another to advance one’s interest unless is for a news story or some other legitimate purpose.


Intrusion Upon Seclusion
This is a tort for invading the privacy of another without just cause.  Does not require publication.  Must be an invasion of a private space.  Action must be highly offensive to a reasonable person.


Hypotheticals






Sam hacks into his neighbors computer and snoops around, but doesn’t find anything interesting. Sam works at the land title office and on his breaks looks at his neighbors records to find out what they paid for their houses Sam works at a doctors office and looks through the medical records of his neighbors.
 He

finds nothing  He discovers that his neighbor has an STD

Intentional Infliction of Emotional Distress
When one proves liability for either intentional or negligent torts, the law allows the recovery of damages for the consequent emotional distress and pain and suffering.  Law was slow to recognize the infliction of emotional distress absent some other tort as a separate cause of action because of the risk of false claims


Intentional Infliction of Emotional Distress Hypotheticals






Joe hears that Bob’s mother has died. He calls Joe three times and asks if his mother is home, laughs and then hangs up. Bob is extremely annoyed. Joe’s child drowns. Bob repeatedly calls offering swimming lessons, making “glub-glub noises” and singing the “Under the Sea” song from Little Mermaid. Joe gets angry and changes his phone number. Joe is horribly arachnophobic. Bob doesn’t know how sensitive he is, but knows he doesn’t like spiders. He repeated puts rubber spiders in his desk drawer and in his briefcase. As a result, Bob has a nervous breakdown and misses three weeks of work.

Intentional Infliction of Emotional Distress
 



Requirements: Conduct that is extreme and outrageous, intolerable and not merely insulting, profane, abusive or annoying. Must go beyond all reasonable bounds of decency Plaintiff’s emotional response must be severe. Must be more than merely upset, or unhappy for a short time. Distress must be great and prolonged.


Need not be accompanied by physical manifestations, but such physical effects will help to demonstrate the nature of the distress.



Defendant must intend to inflict emotional distress, or do so recklessly.

More Rules


Not responsible if a normal person would not have a severe reaction but because plaintiff is emotionally fragile, they have a severe reaction.
 But,

are liable if you know of the plaintiff’s sensitivity.



Will be liable to third persons if know or have reason to know that they are there and it is foreseeable that they will suffer distress.
 Thus,

if beat up mother while child is watching from the window, will be liability.

Defenses to Intentional Torts


The law recognizes certain privileges to take actions that would otherwise be considered intentional torts.
 Two


classifications:

Consent  Privileges created by law regardless of consent

Consent Hypothetical






Joe goes to the doctor. Without asking permission, the doctor gives him a shot. Joe would have consented if asked. Joe goes to the doctor. The doctor asks permission to give him a shot. Joe nods his head, but doesn’t really mean it. Joe goes to the doctor. When he sees the needle, he passes out and cuts his arm, which is bleeding badly. Before he wakes up, the doctor has stitched him up. Joe would not have consented if asked because he hates doctors.

Consent
Consent is a defense to any intentional tort  Consent is a state of mind, so is sufficient if the plaintiff has subjective consent even if not communicated to the defendant.  However, defendant is entitled to rely upon the statements of the P. Thus, if manifest consent but don’t really mean it, D is off the hook so long as it was reasonable to rely upon the statement.


Consent
Conduct can manifest intent, such as beckoning someone to enter your house or holding up one’s arm to be vaccinated.  Consent can be inferred from custom, usage and circumstance.

 Thus,

if customary for one friend to hug another when they see each other, consent is assumed if one friend in fact does hug.

Consent is implied in some cases. Where someone is in critical need of medical care, Doctor is assumed to have consent to act.  Consent is to the conduct, so P can’t complain of unintended consequences.

 Thus,

if play football, consent to be tackled, even if one ends up a quadriplegic due to unforeseen

Hypothetical
 Joe


consents to let Bob punch him in the nose for $50 dollars.
The money is counterfeit  Bob is really skinny and Joe didn’t think it would hurt, but Bob hits a lot harder than A anticipated.  Bob is wearing brass knuckles, which Joe didn’t anticipate.

Mistaken Consent


Ordinarily, a consent is valid even if the P is mistaken or ignorant of the nature or character of the defendant’s proposed conduct or the extent of the harm to be expected from it.
 Unless

D knows of the mistake or induced it by misrepresentation.  Mistake must be to the essential nature of the act.

Self Defense


Right to self defense exists to prevent a battery and also, under the right circumstances, to prevent a false imprisonment or negligent injury.

Hypotheticals






Joe knows that Bob is a hot-head who often carries a concealed weapon. Joe and Bob get into a verbal dispute. Bob reaches into his jacket. Joe thinks Bob is reaching for a gun. Joe hits him over the head with a vase. Bob in fact was reaching for a roll of lifesavers. Bob has threatened to kill Joe. Bob shows up on his doorstep and starts pounding on the door. Joe opens the door and shoots him. Bob goes up to Joe and hits him in the nose. He rears back to hit him again and Joe shoots him.

Self Defense


Privilege exists not only where the danger to defendant is real, but also where D reasonably but mistakenly believes that self-defense is necessary.
 Thus,

if P reaches into a pocket for the apparent purpose of retrieving a weapon, D may be privileged to act accordingly even though no weapon in fact existed.  The reasonableness of D belief will be a question for the jury based on the circumstances. Standard is what a reasonable person would have believed under the circumstances

Hypotheticals
Bob starts beating up Joe. Joe fights back and eventually knocks Bob down. Bob lies on the ground moaning. While Bob is down, Joe kicks him three times and breaks his ribs.  Bob starts beating up Joe. Bob is bigger and Joe can’t win a fist fight. So, he takes out his knife and stabs Bob to death.


Self Defense


The defendant may only use as much forces as is or reasonably appears to be immediately necessary to protect himself under the circumstances.
continue to use force once the threat is passed or P is subdued.  Can’t use more force than is necessary  Can’t use force in response to mere verbal threats or abuse
 Can’t

Deadly Force


One can only use force likely to cause death or serious bodily harm if:
 He

reasonably believes that he is in danger of similar harm, AND  There is no reasonable retreat or escape  While a minority of states don’t require the lack of a chance to escape, the majority do  Escape is only reasonable if clearly available and expedient  Escape is not required in one’s own home

Defense of Others






In general the modern view is that one is privileged to come to the defense of any third person. Absent mistake, one stands in that person’s shoes and acquires that person’s privilege of self-defense with the same rights and limitations. Majority rule is that a reasonable mistake does not negate the rule. Reasonableness will be a question of fact.

Defense of Property
 


 

Is a right to defend property, but is more limited because the social value of property is less than life. A possessor is privileged to use reasonable force to prevent another’s intrusion upon his land or property even though such conduct would otherwise be an assault, battery, false imprisonment or trespass. Must ask trespasser to leave or stop before using force Must use the minimal force necessary, and deadly force is never justified. Can’t due indirectly, what can’t do directly. Thus spring guns or other traps that would cause death or serious injury are not allowed.

Negligence
Negligence is the name of a tort cause of action. It is also the term used for the conduct that will make you liable for the cause of action.  Negligence is based on the idea that everyone owes a duty of care to those around them to act in a reasonably prudent way to prevent unreasonable risks to others.


Elements of Negligence


The Elements of a cause of action for negligence are:
A

duty owed by defendant to plaintiff  Breach of the duty of care  Plaintiff’s damages were the actual cause of P’s injuries or damages  Defendant’s actions were the proximate cause of P’s injuries or damages  P suffered damages.

General Definition of A Negligence
Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm  Negligence is based on conduct, not state of mind. Not measured by the defendant’s mental carelessness, but by whether the conduct objectively fell below the requisite standard of care.






Helen is 85. She looks carefully both ways before making a left turn, but because she has poor eyesight she can’t see a car coming. She hits the car. Is she liable even though she made every effort possible to see on-coming cars? In Hahnville most of the drivers in a residential neighborhood make rolling right turns. Matt makes a rolling right-turn and gets into an accident. Is Matt liable even though he met the standard of the average person in the community?

Reasonable Man Standard
 





In general, in judging whether conduct is negligent the law applies objective standards of reasonableness. It does not make special allowance for the particular weaknesses of the actor. The clumsy, forgetful and stupid are held to the standard of the reasonable or ordinary man even if they can’t meet that standard. The reasonable man is not the average man. Is the community’s conception of how members of the community ought to behave. The reasonable person is not perfect or infallible. She is permitted errors of judgment and mistakes in perception. But, the errors must have been reasonable and consistent with the exercise of ordinary care.



Bob knows nothing about chickens, but decides that he wants to raise some in his yard. He is told by his brother that chickens can’t fly and don’t wander away. So, Bob doesn’t fence his yard. The chicken’s get into the street and cause an accident. Is Bob negligent even though he didn’t know that the chicken’s were likely to get into the road.

Knowledge
 



The defendant is charged with the knowledge they actually have. In addition, are charged with the knowledge that a reasonable man would have after making efforts to acquire knowledge if a reasonable person would do so. Can’t deny knowledge of those things which are commonly know in the community


Basic principles of physics, the danger of electricity, principles of leverage, the limits of the body’s physical capacity, the natural propensity of children and animals.



Must take notice of what one does not know and exercise caution commensurate to one’s ignorance.





Stan has been a doctor for 20 years. A patient comes in with strange red bumps and symptoms that a doctor with any experience would recognize are measles. He misses the diagnosis because he has never encountered a case of measles before. Same, but Stan has just graduated from medical school and doesn’t have much experience.

Special skills






One who holds himself out as having special skills, such as a doctor, lawyer, engineer, barber, excavator, is required to exercise the care of a reasonably prudent person of that profession. Usually these are licensed groups, but not always. Specialists are held to a higher standard if they hold themselves out as specialists, i.e. surgeons. Novices or beginners are held to the standard of those fully trained.



 

Floyd is very near-sighted. He agrees to watch his neighbors son while he swims at the lake. The child swims to the middle of the lake and gets into trouble. Floyd doesn’t see him and makes no effort to save him. Is Floyd negligent? Same, but Floyd has taken a job as a life guard. Floyd has good eyesight, but isn’t very strong. He swims out to the child, but is unable to swim back to shore with the child, so the child drowns?

The Physically Infirm


Those who have less than average strength, perception are not held to the standard of an ordinary man, but their infirmity is one of the circumstances that must be taken into account when judging their behavior
 They

must act prudently in light of their infirmity.

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
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Beatrice is 7. She comes across a handgun in a vacant lot. She picks it up assuming it is a toy like the one her brother has. She pulls the trigger and shoots her neighbor. Is she liable? What if she found the gun in her back yard? What if she found it in her father’s desk drawer? Beatrice is 7. She decides to drive herself to school. She takes her mom’s car and tries to drive to school. She runs over three cub scouts acting as crossing guards. Liable?

Minors and Children
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Children are liable for their torts, but are held to the standard of a reasonable prudent child of the same age, intelligence and experience. Adults can be liable if they allow a child to engage in an activity that is dangerous given the child’s age and experience without appropriate supervision. If children engage in adult activities, such as operating a vehicle or plane, hunting, etc., they are held to an adult standard of care

Actions of others
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One often has a duty to anticipate and guard against the negligence of others if that negligence or even criminal behavior is foreseeable. Thus, may be liable if leave the keys in the car in a neighborhood where theft is likely, fail to slow down in an area where know that pedestrians frequently jaywalk. Must anticipate the circumstances as would a reasonable man with the same knowledge

When is Risk Unreasonable?


GR: Negligence is the doing of an act under circumstances where a reasonably prudent person would foresee that he is thereby exposing another to an unreasonable risk of harm.
 So,

what is “unreasonable”?



GR: A risk is unreasonable when the foreseeable probability and gravity of the harm outweigh the burden to the actor of alternative conduct which would have prevented the harm.

Risk Calculation


Are two variable that play into risk.
 First,

how likely is harm to occur?  Second, how serious will the harm be if it does occur?

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 

Phil is doing construction on a farm in the country away from any road. He tosses bricks off a third story roof rather than carrying them down because it is much quicker. He hits and kills a hiker who happened to be in the area. Is the risk unreasonable? Same, but Phil is throwing wooden shingles off the roof. The hiker suffers a mild concussion. Phil is doing construction in the city and throws wooden shingles down to the sidewalk.

Alternative Conduct Calculation
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

The burden of reducing or eliminating the risk by alternative conduct is placed on the other side of the scale. A number of considerations may be relevant
 

   

The importance or social value of the activity or goal of which the actor’s conduct is a part The utility of the conduct as a means of conducting the activity The feasibility of alternative or safer conduct The relative cost of safer conduct The utility of the safer conduct The relative safety of the safer conduct

Proximate Cause
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Kylie is driving down the street and loses control and knocks over a power pole. The pole falls down and severely injures A, who is sitting in her yard at the corner of the intersection drinking a mint julep. It missed B, who was sitting next to A. But the loud noise from the crash causes the dog, who B is holding on a leash, to freak out and knock B down. B suffers a serious head injury. The dog then runs frantically down the street away from the intersection and knocks down C, who is walking down the sidewalk, 200 yards from the intersection. D is in a nursing home three blocks away on a life support machine. When the pole goes down the nursing home loses power and D dies.



A is getting on a train. D is a porter who is assisting him with his bags. D negligently drops the bag. Inside the bag is a fragile vase. The vase crashes loudly on the cement. As a result a nearby horse tethered to a carriage is spooked and rears up knocking over a scale. The scale falls onto P, who is waiting to get on the train, and injures her. Is D liable?

Scope of Liability/Proximate Cause/Duty
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The law struggles with whether the D has a duty and whether the P’s damages should be charged to the D’s negligence when either the P or the damages or both are beyond the scope of what was foreseeable. This is sometimes referred to as Proximate Cause and sometimes analyzed in terms of the scope of the D’s duty. The term proximate cause is misleading. Does not deal with cause in any real sense. Is assumed that there is in fact a casual connection between the D’s act and the P’s injury. Nor does it deal with proximity in time or space. The proximity refers to whether there is proximity to fairness or justice.

Unforeseen Consequences


The majority rule is that the Def. is only liable
 for

those consequences that gave rise to the duty of care in the first place. I.e., the damages that would be the natural and predictable result of the negligent behavior and could be reasonable foreseen, AND  injuries to persons within that foreseeable zone of danger even if the manner of the injury was unforeseen so long as the damages are of the type that could have been foreseen.

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A ship is loaded down with explosives. A worker drops a heavy wrench into the hold. The wrench misses the cargo, but it causes a spark that causes the ship to blow up. Liable? The court will generally allow recovery despite the fact that the extent of the damages where much greater than would have been anticipated because damage to the ship or its cargo was foreseeable

It is usually held that it is not necessary that the exact manner in which the harm occurs be foreseeable, but only that harm of the same general type as that sustained by plaintiff be foreseeable.  Courts generally will allow recovery for unforeseen injuries if some injury was foreseeable.


Foreseeablity of Extent of Damage
Kacey is a hemophiliac. Sarah accidentally cuts her with scissors while they are cutting streamers for homecoming. Kacey bleeds to death.  Due to a birth defect, Fred has a very thin skull. Jim accidentally bumps into him and Fred hits his head on the wall. Fred dies.


Eggshell Plaintiff Rule


The law requires a Def. to take the plaintiff as he is, and are liable for damages that would not be foreseeable to the ordinary person.

Intervening Cause
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Bill spills gasoline at the gas station. Jim lights a cigarette and tosses the match onto the ground, causing the gas to catch fire. Bill leaves a can of gasoline on the sidewalk. A neighbor kid finds it and decides to use it to light crickets on fire. He burns himself badly. Same as above, but one of the crickets hops into tall grass while on fire, causing a grass fire that spreads to 12 homes. Bill leaves the can of gasoline on the sidewalk. It is struck by lightening, which causes a passing car to catch fire.

Intervening Cause
 

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Issue: When does a subsequent act or event cut off the liability of the defendant? GR: A cause is intervening so that it may (or may not) cut off liability only if it comes into active operation as a cause after the tortious conduct of the defendant. GR: Defendant’s liability will be cut off by an intervening event if the event was not foreseeable and something the defendant should have taken into consideration. Note, that foreseeability is examined, often, in hindsight. The court will often say that is was foreseeable because it was not unforeseeable or abnormal, even though it is clear that nobody would have actually foreseen the event.

Bill leaves gasoline on the sidewalk. Fred finds it and uses it to burn down his exwife’s house. Is Bill liable?  Bill leaves a gun on the sidewalk. Little Susie, who is 7, finds it and starts to play with it. Her mom sees her with it and does nothing. Is Bill liable?


Exceptions to the Rule of Intervening Cause


Intervening act will cut off liability
 Where

the intervening act is intentional or criminal  Where someone else had an affirmative duty to act.


In these cases, justice requires that the first negligent actor not be held liable for the acts of the subsequent actor.

Duty to Act
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Adam is in the middle of a lake in a row boat. In the boat he has a rope and a life jacket. Brent swims by and then starts to cramp. He starts to drown. Adam quickly reacts by grabbing his camera and taking pictures. He does nothing to save Brent. Same, but Adam jumps in the lake to try to save Brent. When he discovers how cold the water is, Adam gives up and lets Brent drown.

Misfeasance v. Nonfeasance


There is generally no duty to come to the aid of another absent some relationship between the parties that gives rise to a duty to protect.
 Moral

Duty, but no legal Duty.  Rule is different if some relationship that imposes a duty. Being a lifeguard, parent, babysitter, etc.  However, once someone takes any affirmative step to come to another’s aid, they have a duty not to abandon the attempt unreasonably or to injure the plaintiff further.

Defenses to Negligence
Contributory Negligence
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The general rule is that a plaintiff can not recover to the extent that his own negligence contributed to his damages. Thus, if a jury finds that the plaintiff was 20% at fault for an accident, the plaintiff could only recover 80% of his damages. In some states, including Kansas, if the plaintiff is more than 50% at fault they can get no recovery at all. The theory is that if the plaintiff is the most significant cause of his injuries, he should not be able to seek redress from others. Other states allow a Plaintiff to recover even if he is more than 50% at fault. Of course, he only recovers the percentage that others were at fault.

Assumption of the Risk
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Ajax owns a pit bull. He puts a sign on his fence that says “Beware of dangerous dog”. Dudley ignores the sign and enters the yard to fetch a frisbee that he had thrown into the yard. He is badly bitten. Shane loves hockey and has gone to many hockey games. He knows that sometimes pucks leave the ice and go into the stands. He buys tickets in the 4th row and gets hit by a puck. It knocks out 15 of his remaining teeth.

Assumption of the risk
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Theme park has a go-cart track. Patrons are required to sign a form in which they acknowledge that go-carts can be dangerous and that patrons waive any liability for injuries they may suffer. Rupunsel, who has long hair, rides in the go cart. Her hair gets caught in the exposed engine and wraps around the drive drain. Her scalp is ripped off. Is theme park liable? The city operates a park. There is a lake at the park. The city posts a sign that says “No lifeguard. Swimming dangerous. Swim at own risk.” Jim is a strong swimmer, so isn’t worried. He dives into the lake and becomes entangled in the gnarly brush that is just under the surface. He drowns.

Assumption of the Risk
If the plaintiff knows of a risk and voluntarily engages in behavior anyway, the plaintiff’s assumption of the risk will cut off the defendant’s liability for negligence.  Elements of Assumption of the Risk:

 The

conduct must manifest consent and  the risk must be encountered voluntarily  With full knowledge and appreciation of the danger


				
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