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Torts
I.
Policy
a. Want to compensate those to whom injury is done
b. Want to deter bad acts
c. Want to deter vigilantism
d. Motive is irrelevant (see privileges)
Intentional Torts
I.
Intent
a. Types of intent
i. Specific intent
1. Have purpose with specific act to cause harm
ii. General intent
1. Volitional act with knowledge to a substantial certainty that harm will occur
2. Acting with only a foreseeable risk not intent (negligence)
b. Proving intent
i. Subjective standard what is going on in Ds mind
ii. Must be proven from objective evidence
1. Does young child know pulling out chair will result in aunt falling?
2. Does insane person know swinging club will contact someone?
c. Mistake
i. Meant to do X to A, but do X to B instead
ii. No defense
d. Transferred intent
i. Meant to do X to A, but do Y to A instead
ii. Intent to commit tort transfers to new tort
iii. Can only transfer between 5 historical intentional torts
1. Not IIED
II.
Battery
a. Intent
b. Harmful or offensive contact
i. Evaluate on RP standard
ii. Look at TPM
iii. Touching extends beyond body
iv. No physical harm necessary, trespass to dignity is basis of tort
c. [in the absence of privilege]
III.
Assault
a. Intent
b. Imminent apprehension
i. Threats of future harm or conditional threats dont count
1. If condition is illegal, still assault
ii. Must be reasonable belief that could be carried out
iii. Apparent ability to RP, not actual ability
iv. Apprehension is all that is needed (subjective standard)
1. Fear only goes towards damage level
c. Of battery
d. [in the absence of privilege]
IV.
False Imprisonment
a. Intent
b. Confinement to a bounded area
i. Must be more than duress or moral persuasion
1. Actual or apparent barriers
2. Overpowering physical force
3. Submission to physical force
4. Threat to apply force
5. Threat to family
Torts: 2 of 14
6. Taking into custody under purported legal authority
a. Conviction is a complete defense
ii. Size of bounded area irrelevant
iii. No apparent reasonable means of escape
[in the absence of privilege]
V.
VI.
VII.
VIII.
c.
IIED
a. Intent
i. Limits on 3rd party IIED
1. Close familial relationship
2. Done in presence of 3rd party
b. Extreme and outrageous behavior
i. Abuse of power or position
ii. Knowledge of particular susceptibility
iii. Repetition/duration of acts
iv. Acts or threats against person or property P has a known interest in
v. Can be future threats
c. Causal relationship
d. Severe distress
i. Inverse relationship between E&O and level of distress needed
e. [in the absence of privilege]
f. [Damages]
i. Must prove severe ED for any damages
Trespass to Land
a. Intent
b. Invasion of possessors exclusive possession of land
i. Cause lies with possessor, not owner
ii. Extends to chattels, vehicles, and structures on land
iii. (If invasion is of use & enjoyment, nuisance claim)
c. [in the absence of privilege]
i. Privilege has limits
1. Time limits expire
2. Purpose changes
3. Person has been substituted
d. [Damages]
i. Always nominal
1. Adverse possession issues
2. Rental value
3. Gains from use of land or resources
4. ED if reasonably foreseeable
5. Punitive if serious wrongdoing
Trespass to Chattels
a. Intent
b. Meddling of the chattel of another
i. Chattel is impaired as to condition, quality, or value
ii. Possessor is deprived of use for substantial time
iii. Personal harm is caused to the possessor or person/thing in which possessor has legally
protected interest
c. [in the absence of privilege]
d. [Damages]
i. Only actual damages can be awarded
Conversion
a. Intent
b. Deprive possessor of all ability to use or control chattel
i. Intent and circumstance determine line between T/C and Conv
c. [in the absence of privilege]
d. [Damages}
Torts: 3 of 14
i. Compensatory and nominal
Privileges
a. Consent
i. Negation of consent (DIMFBI)
1. Duress
2. Incapacitation
a. Intoxication if D knew or should have known
b. Given by minor
3. Mistake
4. Fraud
a. Fraud towards collateral issue does not negate consent
5. Beyond the scope
6. Illegal activity
ii. Limits of consent
1. Within general customs and mores of situation
a. An issue of fact for fact finder to decide
2. Medical exception if:
a. Patient is unable to give consent; and
b. Risk of serious bodily harm if treatment is delayed; and
c. R.P. would consent to treatment under circumstances; and
d. Dr has no reason to believe patient would refuse treatment
iii. Objective manifestation
1. Explicit; or
2. Implicit if customary and apparent
b. Self-defense
i. No privilege to retribution or retaliation
ii. Requires reasonable belief
c. Defense of others
i. Reasonable force
ii. Privilege only goes as far as the person being defended is entitled
d. Defense and recovery of property
i. Fresh pursuit
ii. Make demand for property
iii. Reasonable level of force
iv. No privilege for mistake
v. Policy: balance self help to unburden courts and limit vigilantism through reasonable force
e. Necessity
i. Public
1. Must be intentional
2. Can be invoked by any citizen
3. Must be clearly shown
4. No recovery of damages except by statute
ii. Private
1. Compensation still required
iii. Can not invoke for taking of life
f. Authority of law
g. Discipline
i. Family
ii. Military
h. Justification
i. Invoked for prevention of harm to people or property
ii. Reasonableness standard
i. Mistake and privilege
i. Relevant to whether a RP would have made the same mistake
Negligence
- In general,
IX.
Torts: 4 of 14
Courts determine if a duty exists based on duty, negligence per se, and zone of foreseeability
Juries determine whether breach occurred, whether it was the but for cause (based on expert
testimony), whether it was the proximate cause, and what damages are awarded
o Ps determine who to sue, whether to join Ds, jurisdiction
o Ds determine contribution among Ds, whether to implead other Ds.
Duty
a. Default rule
i. Ever person has a general duty or standard of care for all persons all of the time to exercise
the care of the reasonable person
ii. Reasonable person
1. Objective standard
2. Not an average member of the jury
3. Mistake may be reasonable
iii. Defining the RP
1. Objective standards
a. Normal intelligence, physical capabilities
b. Normal perception, memory, and minimum standard of knowledge
2. Subjective standards
a. Any additional intelligence, skill, knowledge actually possessed by actor
(professional standard reasonable doctor)
b. Physical attributes of actor (reasonable blind person)
3. Move subjective to objective and add to previous objective
iv. How to define RP in a particular circumstance
1. Circumstance - In an emergency
2. Age of D
a. Not if activity is adult activity or inherently dangerous
3. No slack for novices
4. Customs do not mean reasonable but may be evidence of
5. Disabilities or special abilities set at RP std even if RP is higher than actual
6. Do not impute voluntary intoxication or cognitive disabilities
v. What is reasonable care?
1. Hand formula
a. P * L > B
b. Professional
i. Must prove special set of skills holding to a higher standard
1. Four historical (doctor, attorney, teacher, priest)
2. Generally, will have licensing, education, argot
3. If no professional standard, revert to RP
4. If professional, must have expert testimony to define prof standard of care
ii. Held to the standard of care of that profession
1. Not what another person in that profession would do
iii. Doctor professional standard of care issues:
1. Medical malpractice
a. Physicians must posses and use the knowledge common to a member of the
profession in good standing
b. Std of care set by custom, choice from among accepted methods
c. 3 standards, based on jurisdiction
i. National standard
ii. Specific community
iii. Similar locality
iv. Policy: designed to protect drs from standard unable to conform to
due to limitations of small towns
1. Balance deter rural dr.s vs. same std of care for all
2. Informed consent
a. Typical fact pattern undisclosed complication from procedure
o
o
I.
Torts: 5 of 14
c.
b. 2 standards
i. Physician centered
1. Similar to med mal, custom sets standard
2. P must show custom was violated (3 standards)
ii. Patient centered
1. Dr obligated to disclose all material risks
a. Material risk one that would affect patients
medical decisions (real risk of death)
2. 2 sub-types
a. Obj risk is material to a RP
b. Sub risk is material to this P
3. P must show choice would have been different if risk had
been disclosed.
c. Factors to informed consent
i. Adequate information on treatment
ii. Available alternatives
iii. Collateral risks for both proposed and alternate treatments
iv. Personal or financial interests Dr has in treatment choices
d. Damages
i. Based on having/not having the procedure
ii. Not based on the result of the procedure
iv. Attorney standard of care issues
1. Relationship between attny & client establishes duty
2. Customs of practice establish standard of care
3. Requires expert testimony
4. Malpractice does not lie in unfavorable result
5. Not liable for errors in judgment if best efforts used
6. P must show causation (would have prevailed in suit/will/etc)
Negligence per se
i. Policy
1. Automatically moves from duty through breach
2. Trade off between flexibility for each case and certainty for Ds
ii. Effect
1. Fact finder must decide if rule was violated
a. If violation, then automatic duty and breach
b. If not violated, no liability
iii. Court made rule
iv. Importation of statute
1. Proscriptive statutes
a. Regulatory in nature
b. Must be imported by court
c. Explicitly or implicitly establish a civil duty
2. Non-proscriptive
a. Non-regulatory statutes
i. Criminal, traffic ordinances, something other than torts
ii. Assumes legislature is defining the standard based on the will of the
people
b. No requirement to import, but courts consider:
i. Is P in the class of people statute intended to protect?
ii. Is the injury the type of injury statute intended to protect?
3. If statute not imported, fall back to RP standard
4. Effect 3 options based on jurisdiction
a. Violation is negligence per se
i. Violation of statute is automatically breach
ii. Duty & breach found as a matter of law
Torts: 6 of 14
b. Violation is rebuttable presumption (Majority rule)
i. Presume there is a breach, D can show excuse through
preponderance of the evidence
1. Emergency
2. Compliance > risk than non-compliance
3. Incapacity
4. Unaware and no reason to be aware
5. Unable to comply after reasonable efforts
ii. Following statute is evidence, but not proof of, no negl
c. Violation is evidence of negligence
i. Jury to determine whether act was breach
d. Contract
i. In general, separate contract and tort
1. Monetary vs. injury damages
2. Contract is risk allocation instrument; courts dont want to re-assign Contract duty
voluntarily assumed, tort duty assigned by court
ii. Must have privity and misfeasance to have tort action under the breach
iii. No duty to 3rd parties except:
1. Foreseeable purchaser duty (no requirement for privity for prod. liability)
2. Direct beneficiary duty
e. Duty to rescue
i. No duty unless special relationship and act occurs within bounds of that relationship
1. Control is major theme
a. D creates harm towards P (fault or no fault)
b. D has control of instrumentality that caused danger
c. Special relationship
i. Passenger/carrier
ii. Landowner/invitee
iii. Employee/employer
iv. Ward/caregiver
d. Statutes impose a duty
ii. Judicial activism to change behavior
1. Tarasoff duty to protect with reasonable means
iii. If rescue is undertaken:
1. Dont have to put self in danger
2. Cant discourage another potential rescuer by your attempt
3. Good Samaritan laws protect potential rescuers from harm caused during rescue
attempt
f. No duty for pure economic losses
i. Policy: dont want to have unlimited liability, focus on insurance
g. NIED
i. Zone of Danger
ii. No more impact rule
iii. 3rd party limited duty
1. Closely related to victim
2. Present at scene and aware injury being caused (zone of danger)
3. Suffer serious ED beyond that of a disinterested bystander
4. Not an abnormal response (no eggshell threshold)
h. Unborn children
i. Wrongful death
1. Mj cause of action at viability
2. Mn no wrongful death for unborn children
ii. Wrongful life
1. Brought by child (but for Dr.s negl, would not have been born)
2. Mj no cause of action
Torts: 7 of 14
II.
Torts: 8 of 14
i. Direct evidence personal knowledge or observation
ii. Circumstantial evidence requires drawing inference between facts
iii. Constructive notice: arises by presumption of law that from evidence presented D had a duty
to take notice of, even if D did not actually take notice of
1. Look to evidence
iv. Res ipsa loquitur the thing speaks for itself
1. P must invoke in the pleadings if with RIL instruction
2. Judge decides if RIL instruction given
3. Unknown negligent act
a. Instrumentality in exclusive control of D
b. Act wouldnt have occurred without negligence
4. Effect (based on jurisdiction)
a. Inference of negl jury still decides if negl or no negl
b. Rebuttable presumption jury finds nelg if D doesnt refute (burden shifts to
D)
c. Preponderance of evidence same as (b), but higher standard for D
5. Policy D has superior knowledge of circ and facts at time of negl act, use RIL to
bring out Ds knowledge
III.
Cause
a. Negligent act must in fact cause the injury
b. Cause in Fact or But for cause
i. Typically only one but for cause
1. In contrib., the but for cause is different because there are 2 negligent acts claimed
ii. Standard of more likely than not (>50%)
1. Mere possibilities or speculation not enough
2. Possibilities may get evidence entered, but still must meet burden of proof
3. Remember on counter-claim, burden of proof shifts
4. Exception decrease in chance of survival for med mal
a. Injury is decreased chance at survival, not death
iii. Expert testimony
1. Frye test
a. Testimony based on generally accepted science
2. Daubert test
a. Relevant to issues in the case
b. Reliable
i. Based on scientific method (reproducible)
ii. Peer review
iii. Supported by objective sources
iv. Based on independent or pre-litigation research
iv. Concurrent causes
1. Cause AND cause -> Injury
a. Causes insufficient alone
b. When separate negligent actions combine to produce injury, both parties are
responsible for the entire results
2. Cause OR cause -> Injury
a. Either cause sufficient on its own (use substantial factor test)
b. When separate negligent actions occur, either of which would have produced
the injury, both parties are responsible
c. Policy reason: want P to be compensated, Ds would both blame other D if
did not find this way
d. Concert of action: burden of proof shifts to Ds to each prove they were not
the cause
3. Market share liability
a. Ds liable for their market share
b. Burden shifted to D to prove each was not cause to this P
Torts: 9 of 14
IV.
Torts: 10 of 14
V.
Torts: 11 of 14
2. Contrib act is different than Ds negligent act
Assumption of the risk
i. Explicit or express
1. Is the injury within the scope of the clause
2. Is the clause against public policy
a. Look at good/service being bargained for necessity? Position of power or
authority?
3. Complete bar to recovery
ii. Implicit
1. 3 factors:
a. Knowledge of particular risk
b. Appreciation of magnitude
c. Voluntary encountering the risk
2. Does not apply to rescue doctrine
3. Consumed by comparative negligence in most jurisdictions
d. Statute of limitations
i. To start the statute two elements necessary:
1. All elements present
2. Discovery - elements known or should have been known by P
ii. Stop the statute if:
1. Incapacitation
2. Minors (dont start until of legal age or bring ad litum)
e. Statutes of repose
f. Immunities
i. General
1. Availability of insurance is central to the stripping away of immunities
2. General trend away from immunities in general
3. Conferred solely on basis of status, not conduct
ii. Husband/Wife eliminated in most states
iii. Parent-child maintained in most states
iv. Charitable organizations
1. Charitable organization disappearing
2. Religious organization often protected by statute
3. Old policy overall goal of compensation so no drain on society not met by taking
money from charity
v. Employers
1. No tort liability because compensation under workers comp
vi. Sovereign immunity
1. Local govts eliminated
2. State & Fed by statute
a. Discretionary functions (policy decisions) immune
b. Ministerial functions (execution or implement policy) eliminated
Defendant issues
a. Always need to answer:
i. Who to sue? Sue serially, some Ds, all Ds
ii. What to sue for? How far back in causal chain to get all Ds.
b. Joint and several liability
i. All defendants are jointly responsible for 100% of the damages and are individually
responsible for the 100%
1. Always define severally on the exam
ii. When to apply J&SL
1. Concern of action
2. Indivisible injury
3. Special relationship or common duty
iii. Awarding damages
c.
VI.
Torts: 12 of 14
c.
Torts: 13 of 14
VII.
VIII.
Torts: 14 of 14
g. Administration of justice vs. judicial efficiency
h. Impacts of technology on tort law