Elements: Act by D
Intent/knowledge with substantial certainty (kwsc)
Snyder v. Turk: touching in anger is battery.
Cohen v. Smith: physical harm not req’d—trivial offensive/insulting contact sufficient.
Leichtman v. Jacor Comm.: No direct physical contact req’d – extension of person.
Van Camp v. McAfoos: Fault required for prima facie (pf) battery.
Types: True intent – one acts to produce consequence.
Substituted intent – Kwsc – consequence is substantially certain to follow.
Garratt v. Dailey: Kwsc sufficient intent. Lower level of intent that satisfies element.
Intends tort on A, commits on B.
Intends tort A, commits tort B.
Hall v. McBryde: Intent to harm one but harming another transfers to injured party.
Minor/child intent – generally liable in tort, except very young children incapable of forming intent.
Insane – generally liable in tort. Irrational beliefs sufficient.
Polmatier v. Russ: Rational intent not required.
“Dual intent” jurisdiction – Characteristic makes it more difficult to prove intent element.
White v. Muniz: Dual intent jurisdiction requires actor to “appreciate” offensive/harmfulness of contact.
“Single intent” jurisdiction – Insanity not a factor/characteristic.
Elements: Act by D
Immediate apprehension of touching
Cullison v. Medley: Imminent apprehension of contact in mind of reasonable person. Contact not required.
Koffman v. Garnett: Knowledge of imminent contact required. No significant delay of the contact.
Elements: Act by D
Confinement w/o lawful privilege
Appreciable period of time
McCann v. Wal-Mart: Confinement may be based on false assertion of legal authority. Threat of physical force enough.
Within ‘fixed’ boundaries—reasonable person believe restrained if sought to leave.
Torts I Outline 1
Torts to property
Trespass to land
Enters personally/causes thing to enter
Remains on land
Fails to remove thing where duty exists to remove
Trespass to chattels
Conversion of chattels:
Exercise of substantial ‘dominion’
Extent/duration of control
Intent to assert right to chattel
Good faith of D
Damages are value of chattel at time of dispossession.
1983 Tort (Civil Rights Violation)
Act under color of law
Deprivation of federal right/violation of constitutional provision
4th Amendment: Right against unreasonable searches and seizures.
Brown v. Muhlenberg Twp.: No immediate threat; liability for unreasonable seizure.
8th Amendment: No excessive bail, fines, or cruel and unusual punishment.
14th Amendment: No deprivation of life, liberty, property w/o due process of law.
Yang v. Hardin: Officer’s failure to prevent forcible harm (by other officer) is deprivation of rights.
Co. of Sacramento v. Lewis: Intent to injure req’d to show due process violation.
Alexander v. DeAngelo: Very serious deprivation of rights required to have actionable 1983 claim.
Defenses to Intentional Torts/Privileges
Privilege based on apparent misconduct of the plaintiff
Reasonable belief of harm/confinement
Reasonable force – force equal to that threatened
Retreat first (maybe)
In own dwelling – deadly force allowed without retreat
Defense of third persons:
Defense of others same rules for defending self
Defense against arrest/detention:
Shopkeeper has privilege to detain
Reasonable belief of theft/larceny
Detainment of reasonable time for investigation
Torts I Outline 2
Great Atlantic & Pacific Tea Co. v. Paul: No reasonable belief = no privilege to detain.
Defense against trespass (defending and repossessing property)
Right of property owner to prevent trespass
Use of reasonable force
Where force is only means to terminate intrusion
Katko v. Briney: Cannot do indirectly what he would not be able to do directly (set up spring gun to stop trespassers).
Brown v. Martinez: No deadly force where only property is threatened (life > property).
Parents privileged to use reasonable force against their children.
Valid consent defeats claim.
Party must be capable of giving meaningful consent.
Reavis v. Slominski: Consent not effective if person lacks capacity to give it.
Not incompetent (capable of managing own affairs)
Minors consent limited to that appropriate for age
Limited scope (sometimes)
Ashcraft v. King: There is a scope of consent; exceeding scope of the consent allows a claim.
Kennedy v. Parrott: Where consent cannot be given, professional judgment may allow extending scope of consent.
May be revoked by communication at any time
Privilege not based on plaintiff’s conduct (policy)
Right of officers to trespass to execute search or arrest warrants.
Right to enter public premises (restaurants, malls, etc.)
Right to enter land to recover/reclaim one’s property
Public—to prevent imminent public disaster
Surocco v. Geary: With good faith and apparent/actual necessity, public necessity defeats private rights.
Wegner v. Milwaukee Mutual Ins.: Necessity allows trespass, but liability for damage (individuals should not bear cost).
Private – Reasonably necessary to prevent serious harm to actor or chattels
Ploof v. Putnam: Where private necessity requires, must allow trespass.
Vincent v. Lake Erie Trans. Co.: Necessity requires allowing trespass, but trespasser liable for any damage caused.
Actual cause (cause in fact)
Reasonable person standard
Degree of care exercised by reasonable/prudent person under the circumstances.
Torts I Outline 3
No “exceptional” standard in dangerous situations.
Reasonable person’s duty increases with risk.
Stewart v. Motts: Only one standard of care—the reasonable person standard.
Sudden Emergency Doctrine
Conduct clearly unreasonable may become reasonable in emergency circumstances.
Wilson v. Sibert: Emergency situation standard may make otherwise unreasonable conduct reasonable.
Exceptions to reasonable person standard:
Held to “reasonable child” standard – child of similar age, intelligence, experience.
Robinson v. Lindsay: Child held to reasonable child standard unless activity is adult or inherently dangerous.
Held to standard of reasonable adult when undertaking adult/dangerous activities.
Hudson-Connor v. Putney: Adult standard for children where activity requires adult skills.
Reasonable care of person with similar physical disability.
Sudden medical emergencies:
Sudden emergency doctrine covers unforeseeable conditions.
Liable if condition was foreseeable.
Roman v. Estate of Gobbo: No liability where unforeseeable medical condition results in negligent act.
Superior skills must be exercised under certain circumstances, even if reasonable person would not be
Hill v. Sparks: Superior qualities should be exercised in a manner reasonable under circumstances.
No exception to reasonable person standard:
Mentally disabled – Prevents inducement to fake insanity. Allocates loss between innocent parties to the one who
Creasy v. Rusk: Insanity not a defense. One way duty from caretaker to patient where potential harm known.
Negligence per se
Elements: Injured party is member of class statute meant to protect
Haver v. Hinson: Person must be in the class of people statute meant to protect.
Injury is type statute designed to prevent
Wright v. Brown: Injury must be of type statute designed to prevent.
Violation is the proximate cause of injury
Marshall v. So. RR Co.: Reasonable care exercised even without statutory requirement.
Chaffin v. Brame: Limits of court rules. Each case analyzed on its own facts.
Martin v. Herzog: Plaintiff’s violation of statute can be used to establish negligence (to deny recovery).
Particularizes the duty of care, other elements still need to be met
Rains v. Bend of the River: Negligence per se does not equal liability per se.
Excuses to statutory violation:
Neither knows or should know of noncompliance (taillight out)
Unable to comply after reasonable diligence
Emergency not caused by own misconduct
Torts I Outline 4
Statute compliance is greater risk than violation.
Impson v. Structural Metals: Excused liability only where excusable situation arises.
Assessing duty/reasonable care:
Weighing risks and costs
Indiana Consolidated Insurance v. Mathew: Ordinary prudence to save life over property.
Foreseeability of harm
Bernier v. Boston Edison Co.: Breach where foreseeability is high; alternatives available to reduce risk.
Severity of harm
Burden to take precaution
Stinnett v. Buchele: No duty of care when P in better position to determine risk.
Burden of precaution less than probability of harm * severity of harm (Hand formula)
Giant Foods v. Mitchell: Foreseeability alone does not show negligence. Risk must be greater than privilege.
U.S. v. Carroll Towing Co.: Negligence where burden is less than probability times severity (B > P*L)
Comparative fault –Faulty parties liability for own portion (i.e., contributory negligence)
Apportionment among defendants – multiple tortfeasors split damage based on % of own fault
Joint/several liability – Both parties liable for full amount. Enforcement against either up to full amount.
Contribution – One party bears full liability; other faulty party pays party assuming full liability.
Insolvency/immunity – Full liability even if cannot get contribution.
Several/comparative fault apportionment – Tortfeasors can only be pursued for own portion of fault.
Present evidence proving by preponderance negligent conduct
Santiago v. First Student: Plaintiff’s burden to prove negligence by preponderance.
Upchurch v. Rotenberry: Trier of fact analyzes evidence. Conflicting evidence = multiple reasonable findings.
District of Columbia v. Shannon: Expert testimony not required to establish duty if common knowledge.
Hammons Inc. v. Poletis: Reasonable inferences allowed using common knowledge and ordinary experience.
Thoma v. Cracker Barrel: Must prove knowledge of dangerous condition to establish breach.
Custom – guideline for industry practices
Wal-Mart v. Wright: Manuals are guidelines; do not firmly establish the duty of care.
Duncan v. Corbetta: Customs can be used to gauge industry standard where ordinance establishes baseline.
The T.J. Hooper: Custom does not excuse duty where low burden option exists to prevent harm.
Res Ipsa Loquitur – inferring/presuming unspecified negligence
Elements: Event does not ordinarily occur absent negligence
Koch v. Norris Power: Res ipsa applied in absence of substantial or probable explanation.
Warren v. Jeffries: Possible explanation absent negligence disallows res ipsa.
Widmyer v. Southeast Skyways: Technology suggests no air crashes unless negligence.
Other’s conduct sufficiently eliminated (exclusive control)
Giles v. City of New Haven: No proof of exclusive control and P’s conduct disallows doctrine.
Collins v. Superior Ambulance: Proof by res ipsa when direct evidence is controlled by defendant(s).
Circumstances not caused by injured party
Torts I Outline 5
Byrne v. Boadle: Res ipsa doctrine applies where no prima facie case is made by plaintiff.
Negligence within scope of duty
Valley Properties v. Steadman’s Hardware: Permissible inference requires res ipsa elements be satisfied.
Eaton v. Eaton: Res ipsa provides inference to satisfy burden of proof; does not need to be accepted.
Must suffer actual damages. “Legally cognizable harm.”
Preston v. Cestaro: Actual injury element of negligence action. No damage, no claim.
Actual cause (cause in fact)
Salinetro v. Nystrom: Breach of duty not cause in fact. Injury would have occurred even if no breach of duty.
Landers v. Texas Water Disposal: Cannot apply but-for test to indivisible injuries; all parties jointly liable.
Substantial factor test (when but-for test produces wrong result)
Anderson v. MN & Marie Railway: Substantial factor test substitutes but-for test. Does not need be sole factor.
Proof: what was caused?
Present-value approach to apportionment – liability decreased by other causal factors.
Dillon v. Twin State G&E: Valuation dependent on deprivation; likely injury otherwise – liable for devalued life.
Alternative causations – D’s determine apportionment where both negligent.
Summers v. Tice: D’s determine apportionment where both negligent but only one caused injury.
Doe v. Baxter Healthcare: Must eliminate all other causes to invoke alternative causation.
Preponderance test – Proving more likely than not each element. Lost chance of survival > 51%
Relaxed causation – full damage even with lost chance < 50%
Quantified-causation – recovery for value-of-the-chance lost. (i.e., negligence eliminated 40% chance of
surivival—liable for 40% of damage had death been caused)
Lord v. Lovett: Recovery allowed for value-of-the-chance lost. No full recovery—only recovery for lost chance.
Dillon v. Evanston Hospital: Recovery for increased risk of future harm permitted but requires evidence.
Boundary of liability – extent to which to impose liability on the causal chain.
Palsgraf (Andrews, dissenting): Liability for proximate cause – direct consequences of the negligence.
Scope of risk principle – liability only for harms resulting from the tortious risk creation.
Excluding reasonable and unforeseeable risks.
Medcalf v. Washington Heights Condos: Injury outside scope of risk; beyond the boundary of proximate cause.
Palsgraf v. Long Island RR: Where harm to person not foreseeable, party is out of scope of duty.
Rescue doctrine – creation of rescue situation extends scope of risk to include rescuer.
Wagner v. Int’l RR: “Danger invites rescue,” therefore liable to rescuers.
Manner of harm rule – liable for foreseeable harm even if occurs in unforeseeable manner.
Hughes v. Lord Advocate: Liability imposed for foreseeable injury by unforeseeable means.
Extent of harm rule
Thin/eggshell skull rule – fully liable even if extent of harm is greater than expected.
Fire cases – responsible for all natural consequences of the negligent act.
Doughty v. Turner Manufacturing: Liability where duty is breached. No liability where no breach causes more serious
Torts I Outline 6