Contracts Cheat Sheet

Torts Law Outline Spring 2003 Cohen INTENTIONAL TORTS I. Concept of Intent A. Actor must intentionally commit the elements that define the tort. B. Categories of Intent: 1. Specific Intent: Purpose; it is the goal of your actions to commit the tort 2. General Intent: Substantial Certainty; you knew that your actions would bring about the tort. a. Subjective Test: Determine what the tortfeasor should have known, not what we, the observers know. b. Not automatic defense for D to say “I had no idea D would fall” bc such testimony can be deemed not credible by the trier of fact. (In a way, this imposes knowledge on D, making it objective). Ignorance is not an excuse. c. CASE: Garratt v. Dailey i. Facts: 5 yr old boy moved chair from underneath P. P sued. ii. If P was in the act of sitting when D moved the chair, D had substantial certainty that the tort would occur, (P would make contact with ground) and therefore general intent is satisfied. Most important factor is the boy’s knowledge. 3. Transferred Intent: Intend to commit a tort against A, but instead or also commit a tort against B. a. Limited to the 5 traditional intentional torts: i. Assault ii. Battery iii. False Imprisonment iv. Trespass to Land v. Trespass to Chattels b. If D intends any of these torts, but his acts instead or in addition result in any of the other 5 intentional torts, D is liable even though he did not intend the consequences. i. Intent transfers from one tort to another. ii. Intent transfers from one intended victim to another. c. CASE: Alteiri v. Colasso i. F: D threw rock, intending to scare victim. Hit victim. ii. Principle of Transferred Intent: Intent of assault transfers to intent of battery. 4. Knowledge that you would do actual harm is irrelevant. 5. Damages not required a. Actual damages are not necessary in intentional torts. Only need to show the tort occurred. 6. Mistake is NOT a defense a. Mistake Doctrine: it is no defense if the D mistakes, even reasonably, the identity of the person or property he acts against. i. Ex. D is liable for killing the dog even when he mistook it for a wolf. b. SPLIT: Some courts do not find liability when mistake involves identity of a person, whereas all courts find liability when mistake involves property. Cases involving person usually deal with self-defense of mistaken harm. 7. Infancy is NOT a defense a. BUT, infancy may make it hard to prove the child had the capacity to form the alleged intent. i. Ex. Child may not intend harmful contact when she pulls trigger of what adults would know is a loaded gun. b. CL – parents are not automatically liable for child’s torts. i. Some states (including CA) have statutes that do impose vicarious liability up to certain amount. ii. Parents can be liable if they negligently failed to control child. 8. Insanity is NOT a defense a. If insane person intends the act/contact, it does not matter what the motives were for his actions. b. CASE: Williams v. Kerbey i. F: D shot Ps. Jury found D to be insane. -1- c. Intent can be found if actor intended to do act, even though his reasons and motives were irrational. Justifications: i. Someone must bear the loss. Sound public policy favors placing the loss on the tortfeasor (sane or not) rather than the innocent victim. ii. Prevents people from feigning insanity to escape liability. ii. -2- II. III. Battery A. Definition: intentional infliction of a harmful or offensive bodily contact. B. Elements: 1. A harmful or offensive contact to P’s person. 2. Intent by D to bring about the harmful or offensive contact. 3. Resulting contact. C. Harmful or Offensive Contact 1. Reasonable Person Standard – judged by whether it would be harmful/offensive to a reasonable person of normal sensibilities. a. Protects reasonable person, not unreasonably sensitive person. b. Contact is offensive if P has not consented to it or it is not otherwise privileged. c. R2d does not say whether normally unoffensive contact is actionable when actor knows it will be offensive to P. (Exam Tip?) D. Plaintiff’s Person 1. Anything connected to P is part of the P’s person. 2. Ex. purse, clothes, cane, plate you are eating off of. E. Apprehension not necessary 1. P may recover for battery even if not conscious of harmful contact when it occurs. F. Causation: 1. D’s act must have caused the contact, but D himself need not touch P. a. Ex. throwing rock that hits P will suffice. G. Demonstratable damage not necessary to prevail. 1. Dignitary Torts – lawsuits allowed to defend one’s bodily integrity. Action need not hurt for it to be actionable. 2. CASE: Leichtman v. WLW Jacor Communications a. F: D purposefully blew smoke in P’s face. P sues for battery. b. Once D intends and accomplishes offensive or harmful contact, he is responsible for harm caused, even if minimal or no physical harm was actually intended. 3. CASE: Bohrmann v. Maine Yankee Atomic Power Co. a. F: Students took tour of atomic power lab and exposed to radioactive leak. b. Does not matter that D was in compliance with codes (only shows they were not negligent). Intent to harm is not required for battery and offensive contact can be satisfied even when harm is not observable.. Assault A. Definition: Assault occurs when D’s acts intentionally cause P reasonable apprehension of immediate harmful or offensive contact. 1. Protects P from threatened battery. B. Elements: 1. An act creating a reasonable apprehension of immediate harmful or offensive contact to P. 2. Intent on the part of the actor to bring about apprehension of immediate harmful or offensive contact to P. 3. Result C. Apprehension 1. Reasonableness – apprehension must be reasonable. a. Use ordinary person standard b. R2d eliminates reasonable requirement (minority). i. Suggests that hypersensitive person IS protected (unlike in battery). 2. Knowledge of Act – D must have knowledge for there to be apprehension. a. Ex. No assault if back is turned, if victim is asleep, or if victim is infant. 3. Apparent ability to act – apprehension is reasonable if D’s ability to act is apparent to P. a. A person’s apprehension may be reasonable even if D is not capable of causing harmful or offensive contact to P. b. Ex. Pointing a convincing fake gun at victim will suffice, even if the gun was not dangerous. c. No defense for D that he could not possibly harm P. i. BUT, might be taken into account when assessing the reasonableness of the apprehension. (However, minority R2d does not require reasonableness.) 4. Effect of words – Mere words are not enough. Overt act is required. a. BUT, words accompanied by an overt act may suffice. i. Ex. drawing back fist with words. -3- IV. Words can negate an assault by making apprehension unreasonable. i. A points gun at B and says “If I weren’t such a nice guy, I’d kill you.” No assault bc no reasonable apprehension. c. Conditional Threats i. Generally not sufficient. Ex. “If you don’t stop seeing X, I will harm you.” Considered mere words bc your lover has right to place a condition on you, so it negatives the intent. ii. Exception: When there is no right to impose that condition on D, it is assault bc it does not negative the intent. Ex. “Your money or your life” is considered assault. 5. No physical harm required a. CASE: I de S Et Ux v. W de S i. F: D beat on door. P stuck head out window. D struck, but missed P. ii. Sufficient for assault even though P was not touched. Apprehension of imminent physical injury is harm enough. D. Imminence/Immediacy 1. Apprehension of the harmful/offensive contact must be immediate. 2. Future threats are not assault bc there is no imminent danger a. CASE: Castro v. Local 1199 i. F: employer slams hand on table and says “If I was you, I would take whatever they give me bc you could lose more than your job.” ii. Threat was considered forward looking and therefore insufficiently immediate to constitute assault. 3. Ex. neighbor on phone threatens to beat you up. No assault bc no immediate danger. Is a future threat. 4. Also, if actor is too far away to do harm, no assault bc no immediate apprehension. E. Motive is irrelevant. False Imprisonment A. Definition: the unlawful, intentional confinement of another within a bounded area B. Elements: 1. An act that directly or indirectly confines or restrains another to a bounded area 2. Intent to confine or restrain to bounded area 3. Victim is conscious of the confinement or harmed by it. C. Bounded Area 1. It is not false imprisonment if P is free to proceed in any direction, even though he is prevented from going in the direction he wants. a. Ex. airline layover case. 2. Bounded area can be as large as a city or continent. a. Ex. refusing to give P his passport when traveling. 3. If there is reasonable means of escape of which P is aware exists, area is not bounded. a. Ex. blocking one exit to park when another exit exists is not false imprisonment. D. Means of confinement: 1. Physical boundary/barrier a. No reasonable means of escape exist b. Ex. victim is locked in room. 2. Force or Threat of force a. Can be direct OR indirect i. Direct: it is against you, your family, or your property. Express. ii. Indirect: it is reasonable to imply that force will be used against you, your family, or your property. Inferred. CASE: Dupler v. Seubert 1. F: Employee confined in room by employer. 2. Physical threats and raised voices were used to confine P, constituting false imprisonment. P had apprehension of physical force. iii. Sufficient that victim submits to an apprehension of force reasonably to be understood from D’s conduct. Ex. thug blocks the door. -4- b. V. VI. Threats must be immediate i. Immediate: cannot be future looking threats. c. Threats must be physical i. If not subject to physical restraints, cannot have false imprisonment. Economic threats, moral pressure, or threats to lose job if you leave are not false imprisonment bc you still have the option to leave. ii. SPLIT: However, the duress of property cases contradict this physical requirement. d. Duress of Property i. Confinement by force is accomplished when D maintains possession of P’s property that he knows P will not abandon. 3. Omissions where there is a duty to act a. When D owes P a duty to be released, and D breaches his duty, false imprisonment claim arises. i. Ex. D owns yacht and promises to bring P back to land but does not do so. 4. Improper assertions of legal authority – False Arrest a. False Arrest is a form of unlawful restraint by means of improperly asserting legal authority. i. CASE: Maniaci v. Marquette University D had P committed to mental institution with warrant. No false arrest bc restraint was made lawfully, with legal warrant. E. Time of Confinement 1. False imprisonment can be found even when confinement is only for a minimal amount of time. 2. Length of time can be reflected in damages awarded. F. Awareness of Confinement OR Harm: 1. One or the other will suffice a. Ex. date unaware she is locked in room gets frostbite. False Imprisonment. 2. Justification: a. Protects Only Dignitary Interest: Unless you know you are confined you really aren’t confined, so no interference to your dignity. 3. Exception for Abducted Infants / Incompetent: a. If person having legal custody of infant/incompetent person is aware of the confinement, can constitute false imprisonment 4. Ex. Sleeping person cannot be falsely confined unless harmed. 5. SPLIT: a. Minority R2d does not require awareness. b. Some scholars say awareness after the fact will suffice bc, even though it is after the fact, it still interferes with dignitary interest. Malicious Prosecution A. Definition: the institution of wrongful criminal proceedings against another resulting in damage to the D B. Elements: 1. Initiation of criminal proceedings against D 2. Termination of proceeding favorable to D. a. Must demonstrate D’s innocence. D cannot bring action for MP until proceedings have terminated. 3. Lack of probable cause for prosecution a. Lack of probable cause exists if: i. Insufficient facts to believe D was guilty OR P did not actually believe D was guilty. 4. Improper purpose of P a. Satisfied by showing P’s main purpose of bringing proceeding was for purpose other than to bring D to justice. b. Not an ill-will requirement. C. Parties Subject to MP liability: 1. Prosecutors, judges are immune from MP. 2. Police and private parties are NOT immune from MP. Abuse of Process A. Definition: Misuse of either criminal or civil legal process for an ulterior purpose which results in damages to P B. Elements: 1. Misuse of a legal process 2. For an ulterior purpose 3. Which results in damage to D -5- b. VII. A person who uses a legal process against another to accomplish a purpose for which it was not intended is liable to the other for harm caused by the abuse of process. C. MP Distinguished 1. MP requires termination of litigation. Must be favorable for P. 2. Abuse of Process does not require termination of litigation, so can be filed immediately. Intentional Infliction of Emotional Distress A. IIED exists when D, by extreme and outrageous conduct, intentionally or recklessly causes P severe mental distress. B. Elements: 1. An act by D that is extreme and outrageous a. Outrageous conduct – transcends all bounds of decency tolerated by society. b. Offensive and Insulting language is generally not considered outrageous conduct unless: i. There is a special relationship between P and D. (employer/employee or student/teacher, power relationships). Not determinative, but more likely to find conduct outrageous. ii. P has a known sensitivity of which D is aware. c. Sexual harassment is usually not recognized as IIED. i. CASE: Jones v. Clinton F: Jones alleged that Clinton exposed himself to her when she was state employee. Conduct was brief and without coercion, so did not constitute extreme and outrageous conduct. d. CASE: Slocum v. Food Fair Stores i. F: store employee told P “you stink.” P had heart attack. ii. Conduct was not sufficiently outrageous for IIED. 2. Intent or recklessness to cause severe emotional distress a. IIED is only intentional tort that expands typical type of intent (purpose or substantial certainty) to include recklessness. b. Recklessness is when D acts with deliberate disregard of a high degree of probability that severe mental distress will result. Severe negligence. 3. Damages – severe emotional distress a. Damages not required under other intentional torts b. Mild distress will not suffice c. Traditionally physical manifestation was required, but not today by majority jx. It used to validate the authenticity of the distress, but today that authenticity is validated by the outrageousness of the conduct. i. Arkansas still requires actual/physical distress. C. Notes: 1. Common Carrier Rule: common carriers were held to higher standard of behavior bc common carriers were monopolies. No requirement that extreme mental distress be intended or suffered. Words may constitute outrageous conduct. Possible that courts would not follow today. 2. Third Party Recovery: 3rd party may be allowed recovery for IIED if IIED is inflicted on someone they know. a. In addition to proving above elements: i. P is a close relative of the victim (does close friend count?) ii. P is present at the scene of the outrageous conduct (does TV count?) iii. The D knows the close relative is present. b. R2d - a more distant relationship can be compensated by showing actual/physical injury. Jury does not need that validation of harm when it is close relative bc it is more believable that seeing family member distressed can cause distress. c. If D intends to cause emotional distress to the 3rd party by his actions toward another, the third party becomes a direct victim and need not satisfy the 3rd party requirements to recover. 3. IIED is not one of the 5 traditional intentional torts, so does not allow usual transferred intent. 4. Public figures a. Public figures have a hard time showing IIED. b. In addition to standard elements, must prove NY Times Malice. i. NY Times Malice – D makes statements with the knowledge that they are false or with reckless disregard to whether they are false. ii. Context of the statements matters. -6- a. VIII. Verbal disparagement to public figures, which are not asserted as factual, are generally protected under the 1st amendment, no matter how extreme and outrageous. i. CASE: Hustler Magazine v. Falwell F: Hustler published parody with outrageous defamation against Falwell. Since it was a parody, it was never asserted to be truthful. Ordinary reader would not reasonably interpret it as truthful, so not outrageous and extreme conduct. 5. In CA, employees cannot bring IIED against employers bc it is covered in workers’ compensation. Intentional Interference with K and Intentional Interference with Prospective Economic Relations A. Elements: 1. Existence of a valid K relationship between P and 3rd party or a valid business expectancy of P a. Must be able to prove valid K or expectation. Mere hope for client or economic profit is insufficient. i. Interfering with a competitor a in sporting event generally does not have a sufficient expectancy to establish the tort (even if it caused a better to lose money) since the outcome in most events is too speculative. Causation problem: cannot prove that interference caused the loss. ii. BUT, CA has allowed IIPER claim where a candidate for office was the victim of false campaign ads, even when he lost by a 4 to 1 margin. Why no causation problem? iii. What about lottery ticket? b. Not limited to existing Ks. Creates a cause of action for interference with probable future business relationships for which P has an expectation of financial benefit. 2. D’s knowledge of the relationship or expectancy 3. Intentional interference by D that induces a breach or termination of the relationship or expectancy a. Methods of Interference: i. Inducement: inducing a 3rd party not to perform K with P. CASE: Calbom v. Knudtzon 1. F: Wife asked P to handle legal matters. P went on vacation and D met with wife. Influenced D to fire P and hire him. 2. Since D had knowledge of the relationship, there was a long-term relationship between wife and P, and interference was not justified otherwise, IIK was found for P. ii. Prevention: preventing or making it difficult for P to perform their K b. Interference is NOT improper if: i. Competition: Preventing a 3rd party from entering into a K with a competitor is NOT improper interference if: The K concerns a matter involved in the competition The actor does not employ wrongful means. The action does not create an unlawful restraint of trade The purpose is at least in part to advance his interest in competing with the other. ii. Actor is Responsible for the Welfare of Another: one who is responsible for a 3rd person and prevents them from entering a K with another does not improperly interfere if: Actor does not employ wrongful means Actor acts to protect the welfare of the 3rd person iii. Inducement to Influence Another’s Business Policy: one who interferes with a K in order to influence others’ business policy does not improperly interfere if: Actor has economic interest in the matter he wishes to influence The desired policy does not violate an established public policy. Actor does not employ wrongful means. CASE: EPIC v. Superior Court 1. F: EPIC printed newsletter urging readers to place pressure on business advertisers of paper not to place ads anymore to influence change in paper’s environmental policies. Protected by 1st Amendment. iv. Interference is in the form of advice: one who causes a 3rd person not to perform a K does not interfere if he gives person -7- c. 4. B. Notes: 1. Truthful information OR Honest advice within the scope of a request for the advice. c. R2d factors to consider when assessing if interference is improper: i. Nature of actor’s conduct, actor’s motive, interests of the other with which the actor’s conduct interferes, interests sought to be advanced by the actor, social interests in protecting freedom of action of the actor and K interests of the other, proximity or remoteness of the actor’s conduct to the interference, relation between the parties. Damage to P a. You must be able to show that you had a valid expectation of benefit. IX. X. Courts are generally more forgiving for interference with relationships not yet tied in a K. Allows people to compete (you may be vying for a client) or to provide useful assistance to others. 2. Burden of proof: a. Normally, P has burden of proof in litigation. P brings pf case, an D replies with defenses. b. Some courts, including CA, have shifted burden. In II cases, P must demonstrate that there was an unjustified interference (instead of D showing defense that it was justified). 3. Recovery may yield to the Constitution. Ex. 1st Amendment in EPIC case. Breach of Covenant of Good Faith and Fair Dealing A. Rule of CGFFD: In addition to parties’ K duties, the law implies that every K has a covenant of good faith requiring parties to refrain from doing anything to injure rights of the other party to receive the benefits of the K. B. Breach of CGFFD: When a party in bad faith withholds their party of a K, it is subject to liability in tort. 1. Tortious breach of CGF applies to situations where there is unequal bargaining power. a. Most courts (ex. CA) strictly apply this tort to insurance contexts bc there is usually adhesion Ks involved and unequal bargaining power. Effort to control power of insurance cos. i. CASE: Egan v. Mutal F: P had insurance policy and had accident. Insurance company delayed payments, accused P of illness (not covered) instead of injury, and acted with intent to oppress. Insurer cannot reasonably and in good faith deny payments to its insured without thoroughly investigating the foundation for its denial. Otherwise, breach of good faith. b. Other jx may recognize in non-insurance contexts only when there is relationship of trust and reliance. 2. Suppliers of public service must take the public’s interest seriously. Insurance companies are in a position of power, and must guard the best interests of the insured. a. Ex. car dealer sells you a lemon with warranty. You take it back several times to get fixed, but it never works. Reality is tey never really tried to fix it. Breach of good faith bc the car co intentionally delayed so they would not have to fix car. Intentional Misrepresentation A. Definition: intentional or reckless misrepresentation which induces reliance and causes economic damages. B. Elements: 1. False Representation 2. In reference to a material fact a. Material fact: those which a reasonable person would attach importance to, or those that could be expected to influence the conduct of a person with respect to the transaction in question. b. Misrepresentations of present or past facts are actionable. Misrepresentations of future facts are not. 3. Made with knowledge of its falsity a. CASE: Nader v. Allegheny Airlines i. F: P had confirmed airline reservations, but seat was given away when he arrived late. Sued for misrepresentation of “confirmed reservation.” ii. No intentional misrepresentation bc he was aware of airlines practice of overbooking. He had knowledge of the falsity. 4. And with the intent to deceive a. Actor must have intended to induce P to act in reliance on the misrepresentation. 5. With action taken in reliance upon the misrepresentation -8- a. Reliance must be justifiable given the circumstances. i. Reliance on fact is justified; reliance on opinion is usually NOT, unless articulated by an expert. ii. If victim is not deceived, and totally discounts the representation, there is no reliance. iii. R2d considers the qualities and characteristics of the victim. Foolishness is a defense to Intentional Misrepresentation. You cannot take advantage of ignorant people C. Notes: 1. Duty to Disclose: In general, not duty to disclose except when a person actively conceals material facts. a. There IS a duty to disclose facts basic to the transaction if: i. The actor knows the other is about to enter under a mistake as to the facts AND ii. The other, because of their relationship, would expect a disclosure of the facts. DEFENSES / PRIVILEGES TO INTENTIONAL TORTS -9- I. II. III. IV. Consent A. An actor is not liable for a tortious act if P consented. Consent may be given expressly, implied, or by law B. Express – P shows a willingness to submit to D’s conduct. 1. Ex. P consents to getting beat up by D. C. Implied – can be apparent or by law 1. Ex. engaging in a snowball fight is implied consent to accept battery from another. D. Controversy usually occurs over whether acts went beyond consent. E. Children and mentally incapacitated are deemed not to have capacity to consent. Self Defense A. An actor is not liable for a tortious act if he reasonably believes such force is necessary to protect himself from immediate harm. B. Elements required to use defense: 1. Threat of harm must be immediate a. Ex. NOT self defense to shoot someone running away. b. Ex. Self-Defense can NOT be used for retaliation. c. Controversy revolves around this element and spousal abuse. 2. Reasonable belief – actor needs to have honest AND reasonable belief as to the other party’s actions a. Subjective and objective b. Ex. Even if actor subjectively believed there was threat of harm, jury can find it was not objectively reasonable and not allow defense. C. Notes: 1. Retreat is not necessary (Majority) a. In general, one does not have to attempt to escape and may use force to prevent harm instead. i. R2d Minority - BUT, there is a duty to retreat (if possible) before using deadly force, UNLESS you are in your own home. 2. Privilege of self defense is broader when there is greater risk (ex. when there is threat of death or serious bodily injury. 3. Amount of force that can be used must be reasonably necessary to prevent harm. a. Cannot use deadly force unless aggressor used deadly force first, or it is the only way to prevent serious harm or death. b. If more than reasonably necessary amount of force is used, privilege of self-defense is not allowed. 4. Extends to 3rd party Injuries a. If in the course of defending yourself, you accidentally injure a 3rd party, defending actor is privileged by the defense. Defense of Others A. A person can use reasonable force to protect a 3rd party from immediate unlawful physical harm. B. SPLIT: 1. Traditional Rule: Defense is only available if the 3rd person in fact had the privilege to use selfdefense. Reasonable mistake is NOT a defense. 2. R2d – Defense is available if actor reasonably believed the 3rd person had the privilege to use selfdefense. Reasonable mistake IS a defense. a. Protects Good Samaritan who makes a mistake. C. Amount of force allowed amount of 3rd party privilege. D. CASE: Drabek v. Sabley 1. F: P in car hit by snowball thrown by D. Takes D in car, drives him away from home to take him to police. P sued for false imprisonment. P claimed defense of others since he was protecting other drivers from being hit and causing dangerous situation. 2. Held: Driving away from home to find police was unreasonable force in defense of others. Defense of Property A. Reasonable force can be used to protect personal and real property. B. Defense is available to prevent commission or the tort OR if you are in hot pursuit. C. Force intended to inflict death or serious bodily injury can never be used in defense of property. D. Generally, reasonable mistake does NOT excuse an actor from using force in defense of property against an innocent party (one who had privilege to use property). 1. Unlike self-defense, which does excuse force against an innocent party 2. Exception: when party is a merchant, reasonable mistake of actor acting in defense of property does excuse force against an innocent party. - 10 V. VI. E. Surrogate devices (mechanical gun or dog) cannot be used to inflict serious bodily harm that you would not be privileged to inflict were you present. Also applies to self defense. Privilege of Arrest A. Depending on circumstances, one may have a privilege of arrest. B. Valid Warrant – arrests pursuant to a valid warrant are privileged. C. Reasonable belief – Private citizens have the right to use reasonable force to arrest someone committing a crime if there is reasonable belief the person is guilty. Necessity A. Necessity is a defense that allows D to interfere with an innocent party’s property in order to avoid a greater injury. B. Elements: 1. Apparent necessity – reasonable belief of need 2. Threatened injury is more serious than the invasion C. Private Necessity – a privilege which allows D to interfere with property interests of an innocent party in an effort to avoid greater injury. 1. Actor still must compensate for damage to property. So, privilege is deemed “incomplete.” a. Justification: i. We want people to protect lives of others without hesitation. b. CASE: Vincent v. Lake Erie i. F: Ship owned by D unloading on P’s dock. Secured lines to dock to prevent damage to ship. ii. Held: D is responsible to damage to property when interfering with the property of another to avoid greater injury. 2. D must have reasonably perceived an immediate need to appropriate victim’s property to avoid a greater damage to property or life. 3. CASE: Ploof a. F: owner of property did not allow boat to dock during storm Damage to boat occurred. b. Owner is liable for damage to boat. Private necessity requires owner allow interference with property in order to avoid greater injury. D. Public Necessity – allows the appropriation of property to avoid greater harm to the public. 1. If act is for public good, defense is absolute. 2. Unlike private necessity, D is NOT required to compensate innocent victim when acting under public necessity. a. Ex. Surocco case – had to knock down building to stop fire. Owner of building cannot recover. 3. Minority of jx decline to apply public necessity bc it is against basic notions of fairness and justice. - 11 NEGLIGENCE I. II. Big Picture A. When do we differentiate between accident, something bad that happened for which no one is responsible, from unplanned happening for which we think someone ought to be responsible? Elements: A. Duty – legally recognized relationship between the parties. B. Breach - failure to meet the standard of conduct C. Causation – breach was the actual/cause in fact or proximate cause of P’s duty 1. Actual/Cause in Fact – conduct was but for cause of harm. 2. Proximate: harm was sufficiently foreseeable or public policy considerations should preclude liability. D. Damages – P suffered cognizable injury Breach: A. Definition: When D’s conduct falls short of the level required by the applicable standard of care, D has breached his duty. 1. Whether breach has occurred is Q for jury. 2. Proof of Breach: a. Must show what in fact happened b. Must show D acted unreasonably. Proof that D acted unreasonably may be established by the standard of care by which D’s conduct is to be measured. B. What is the Applicable Standard of Care? 1. Basic Standard: measure against the reasonable, prudent person. R2d – reasonable man under like circumstances a. Objective standard. b. Do NOT need to prevent all harm, just take reasonable care to prevent it. c. Physical characteristics are the same as D. i. Physical disabilities are considered. (ex. blindness, heart attack, seizure) However, a person is expected to know his physical handicaps and is under the duty to exercise reasonable care of a person with such knowledge (ex. negligent for an epileptic to drive a car) d. Average Mental Ability: i. MAJ: Mental disabilities are irrelevant. Insanity, stupidity, degenerated mind due to age are NOT excuses for acting below the standard of care. Tough luck to the mentally slow. Creates close to a strict liability. Policy: If 1 of 2 innocent persons suffer a loss, it should be born by the one who occasioned it. ii. Minority: Mental disability is relevant if D had no notice of his condition. CASE: Breunig v. American Family Insurance 1. F: P was hit by delusional driver. P sues for negligence. 2. Some forms of insanity are a defense, but there must have been an absence of notice. D knew of her delusions, so insanity is not a defense. This is minority. Majority holds mentally ill to reasonable person standard without the lack of notice exception. iii. Mental retardation is an exception. Mentally retarded are usually held to standard of care of child. e. Same knowledge as member of the community: i. Custom, tradition, usage patterns, law and regulations are all relevant to norms of society, so used to assess reasonableness. f. Policy: i. Historical gender and race bias. Reasonable person meant “person who is reasonable by white man standards.” g. 3 Approaches to deciding as a matter of law what is reasonable: i. Usually, jury is not give specific instruction on how to determine reasonableness. Sometimes they are given instruction on one of the approaches below. ii. Hand Formula: B