TORTS Intentional, negligence & strict liability -intentional – purpose/knowledge (punch in face) -reckless – strong probability of harm (30mph over speed limit) -negligence – knowledge but no intent (5 mph over) -strict liability – guilty regardless (blasting) BASIC INTENTIONAL TORTS -INTENT -intent to injure not a prerequisite (intent is to cause contact) -mistake of facts – normally irrelevant re: intent unless P induces – shoot dog/thought wolf -transferred intent “intent follows the bullet” – only 5 don’t require showing of harm – A, B, FI, TL, TC -tort intended/accomplished must be same 1. Assault – IPTW – Intent, Present Ability, Threatening conduct, Well grounded apprehension 2. Battery – IOA – Intent, Offensive/unreasonable touching, Absence of consent (1) P need not be aware, (2) objective standard, (3) except: known sensitivity, (4) direct force not required (poison food) 3. FI – IUAUH – Intent, Unconsented/fixed boundaries, Apparent lack of exit, Unreasonable force or threat of, Harm/knowledge of confinement of P. (1) except: shopkeepers priv., (2) future intent, (3) int. tort so won’t count if janitor accidentally locks someone in closet. 4. Trespass to Land – I U – Intent to be present, Unconsented presence on land of another (1) reasonable mistake irrelevant 5. Trespass to Chattels – IMI – Intent to affect, Minor interference, In absence of dispossession/proof of damage 6. Conversion – IOWT – Intentional exercise, Of dominion/control, Which seriously interferes, That D may be required to pay full value. (1) bailee’s not liable w/out knowledge. (2) BFP – no title if bought from thief. – liable. Title if bought through fraud – NL. 7. IIED – IECR – Intent, Extreme/outrageous conduct, Causation, Resulting in severe ED. (1) except: common carriers, innkeepers – higher standard of care, (2) D must have knowledge of P’s presence DEFENSES AND PRIVILEGES 1. Consent – majority – D must prove consent. Actual – p willing for conduct/not consequences. Manifested by words, actions, silence/inaction. Implied in law –P unconscious, imminent decision, RP would consent, P no reason to w/hold. -P must have capacity to consent. Consent not ∆se when goes beyond limits – fraud, duress, etc. 2. Self Defense – (1) anyone but aggressor, (2) force must be reasonable, (3) reasonable mistake about UF – still valid privilege, (4) DF only against DF, (5) SD privilege gone when threat gone, (6) Verbal threats ≠ assault ≠ SD. 3. ∆se of others – (1) can be invoked by anyone who RB force necessary to protect another (even stranger), (2) intervenor’s force must be R. 4. ∆se of property – (1) deadly force – NEVER to protect land (spring gun), (2) reasonable mistake as to degree of force necessary – priv. still good, (3) RM as to whether intruder is privileged – destroys privilege of ∆se of property. 5. Recapture of chattels – owner wrongfully dispossessed by fraud or force – privilege to promptly use RD (ND) to recapture – fresh pursuit required. 6. SK Privilege – can detain temp. in/near store for reasonable investigation of theft, (2) can use RND force, (3) short investigation time depends on value, nature of misconduct & difficulty consulting info sources, (4) Investigation ONLY! (5) Priv. extends beyond shopkeepers, (6) too far away = recap of chattels. 7. Unlawful conduct – P’s UC can be total bar if serious violation of law, (2) injuries for which recovery sought must be from violation, (3) not all illegal activities preclude tort action – i.e. trespass/loaded spring gun, pipe bomb injury PP is trespass much lower than making pipe bombs. DAMAGES 1. Remittitur – remedies excessively high verdict-P has option to take lower amt. 2. Additur – remedies excessively low verdict – D can pay more $. 3. Pain & Suffering 4. Loss of consortium – compensation for loss of companionship/affection 5. Collateral source rule – P recovery from D not dimished by other benefits. 6. Doctrine of avoidable consequences – P can’t recover from aggravation of his own damages avoidable by reasonable care. 7. Survival/Wrongful death actions – S – one parties death does not = end of law suit. WD – creates COA for benefit of class of persons left behind when D tortiously kills. Recovery = pecuniary losses (income/benefits survivor lost because of death). 8. Loss of earning capacity – (1) fixed wages – P gets earnings earning amt of FW. (2) self-emp, commission, unemp – reduced to PV, circumstantial evidence. 9. Punitive damages – punish D. NEGLIGENCE -Duty, Breach, Causation, Damages -conduct poses unreasonable risk of harm -Palsgraf -risk reasonable to be perceived defines the duty to be obeyed. FORESEEABILITY!!! -No foreseeability = no duty. Andrews minority view – duty runs to all – foreseeable or not. -Negligence balancing test – How foreseeable must harm be? -Learned Hand balancing test – B < L x P (conduct neg. if burden of P outweighed by gravity of loss v. prob. of harm. -utility of use v. gravity of harm -Reasonable person standard – what changes the standard of care? 1. emergencies – no change, but factors on whether actor behaved reasonably. 2. physical disabilities – RP has same – (1) person must exercise care w/knowledge of handicap (ie. epileptic could be liable for N) 3. age – children have special standard – subjective – level of care of child with like, inelligence, and experience. BUT, if child does adult activity, where adult qualifications are required then held to RP standard. 4. Mental deficiency – no change; considered only for det. contrib. neg. 5. Superior knowledge – persons w/SP required to use that knowledge – standard of care – like those in same field. 6. Informed consent – doc must give patient enough info to enable patient to give IC. 7. Common carriers/innkeepers – liable for slight neg. -Neg based on violation of a statute 1. To prove you must ask: did statute set standard of care? Was there an excuse for violation? What is the procedural effect for excused violation? Injury caused by violation? Can ∆ raise a ∆se? 2. How a statute defines standard of care – either legislature expressly intends it, or courts adopt by considering class of persons intended to be protected and type of harm intended to be prevented. (keep building safe – only to protect those rightfully on premises, and violation of Sunday closing law not evidence of neg. in accident in store on Sun.) 3. Violations excused when – compliance would cause more danger, compliance beyond ∆’s control. 4. Violation is negligence per se – P will have est. conclusive presumption of breach and duty. -Proving negligence 1. direct, circumstantial & res ipsa loquitor (event doesn’t occur in absence of neg./facts indicate more likely than not was cause of event. To est. res ipsa P must show (1) inference of neg. (windowpane falling from building), (2) neg. attributable to D – if one or more persons, res ipsa may not be est. (unless members have SR), (3) P must est. injury not attributable to him. -Factual causation