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A. Intent to touch
1. Intent to cause harmful touching satisfies (Snyder 40 doc grabs nurse)
2. No intent, no battery (Van Camp 37 3 year old drives bike into p)
(Pomatier 54 insane. D is incapable of forming the intent necessary. ) But this
does not mean insane can not be held, just here he cannot form the intent.
3. Substantial certainty is needed (Garratt 46 child moves chair)
a. Child liability: Children can be liable as long as elements are proved.
4. Transferred intent: Intends a tort on one person but commits a tort on another or
intends one tort but accomplishes another
a. (Hall 50 intends to shoot one kid but shoots neighbor)
B. Touching
C. Touching is harmful or offensive
1. Offensive touching counts (Cohen 41cannot be seen naked by male)
Bruise is not necessary.
a. Smoke – but this does not set a precedent. In this case it was a very
deliberate insult (Leichtman 44)
2. Duel intent jurisdictions need harmful and offensive touching. (White 57
Dementia patient did not appreciate conduct was both) Not good policy
because it does not deter people from making these pleas when not sick.

A. Intent to create a hamful/offensive act
B. Which creates reasonable apprehension
1. Must be one which would create apprehension in the mind of a reasonable
person (Cullison 59 Words plus waving gun. Error for summary judgment)
*Words alone do not make actor liable unless together with other acts/circum
or if words negate the intent to touch, no assault.
2. No assault because no apprehension touching was going to occur (Koffman 63)
C. For the imminent fear of a battery

False Imprisonment
A. Conduct by P which confines (need intent to confine)
B. By physical barriers/physical force/threat of physical force/based on false
assertions of legal authority to another
1. Even if not physically restrained, could have induced a reasonable person to
believe they would be restrained physically if they sought to leave (McCann
C. Where victim is conscious of the confinement/harmed by it
1. Shopkeeper is privileged to detain until police come, but dangerous if you
detain wrong person. If policeman arrests you, immunity.

A. Intent to enter upon the land (do not have to know it is someone elses)
B. Personal entry/ causing an object to enter the land
C. May be able to get rental value. Punitive damages if malicious. Extends
beneath/above. If unintentionally entered, refused to leave, trespass.

Conversion of Chattels/Trover
A. Intend to exercise substantial dominion over the chattel
B. D does not have to be conscious of this wrongdoing.
(Kelly 70 Intentional deprivation of property is sufficient to show control)
Usual remedy for conversion is damages, measured by value of chattel at time of
Trespass to Chattels
A. Intermeddling with a chattel (moveable/transferable property) of another
B. Liability is only imposed if the possessor suffers lost use, or if harmed.

Forcible Harms as Civil Rights Violations

Brown 75 State’s interest may justify extreme intrustion by killing a pet, but not when
it poses no immediate danger and the owner is looking on.

Defenses to Intentional Torts: Affirmative Defense (D’s burden)

A. Self Defense 8
B. Arrest and Detention: Has to demonstrate is a shopkeeper, see the shoplifting,
and there has to be shoplifting.
1. Privilege is to detain in order to get your property back. (Did not see P
shoplift, and stopped him before tried to leave the store Great Atlantic &
Pacific Tea co 84)
2. Privilege to detain until you get property back.
3. Private person can do so but if wrong, false imprisonment.
C. Defense and Reposession of Property
1. Cannot use deadly force to protect property. Unless you have personal
possession of it (Katko 86 shotgun trap) Even when personal possession
defense, should be for self defense.
a. Transferred intent (Brown 88 shot trespassers and hit)
b. Go to court to reposess your property.
D. The Special Case of Consent 91
E. Necessity
1. When you don’t have a reasonable choice, you can do things normally can’t.
2. (Surocco 101 blew up house to save others)
3. City should bear the cost of benefit conferred. House destroyed to catch
robbers (Wegner 103)
4. Necesity justifies entry upon land and interfere with personal property that
would otherwise be trespass (Ploof sloop)
5. When D is ruining something to help themselves, no necessity. (Vincent:
overstayed sloop damages dock)
Policy: The response of tort is to leave the loss where it is. Question today is whose
insurance is going to pay for it. Both, then both will sue each other.

A. General duty of care: The reasonable person standard (physical characteristics
are taken into consideration. Intoxicated owes same as sober)
a. Jury should decide what ordinary care is (Stewart 115 auto repair
b. Reasonable person in the same circumstances (Wilson 117 backed up
crashing: Sudden Emergency Instruction)
c. Children are usually held to the standard of other children
i. Except when they perform an activity that is inherently dangerous
(Robinson 121 snowmobile)
B. Accepted duty
a. Caretaker has a responsibility to take care of their clients. (Creasy 125
Alzheimers patient who kicked her) reasons why 14
C. Dead person has no duty (Roman 129 dead man driving)
D. Particular duties
a. Duty of driver to drive with headlights (Marshall hit the bridge)
i. If accident occurs when P drives like a reasonable person, he
should not be contributorily negligent. (Chaffin 134 truck in the
road with no lights on)
b. Negligence per se. When statute says no, do not do it, liability (Martin
driving w/o headlights)
i. To trigger statute, must show P belongs to the class of persons the
statute was designed to protect AND P’s injury is the type statute
was designed to prevent. (Rains 137 teen buys gun and kills self)
a. P was not the type of injury meant to prevent (Wright 141 dog
2. BREACH: Was duty breached by failing to exercise care required?
A. Sudden Emergency Doctrine: things that might be unreasonable if you had
time to think about it, might become reasonable if you did not have time to
think about it. (Indiana Consolidated Co 150 mower in garage)
B. Usually employer’s job to make environment safe. Unless independent
contractors. (Stinnet 152 injured roof painter)
C. Can be a breach if the design is negligent. (Bernier 155)
D. Employee should have been there to make sure accident did not happen.
(Carroll Towing co. 160)
E. Must prove there was a breach (Santiago 169 bus accident 7 years ago)
F. Jury question to check credibility of witnesses (Upchurch 170 conflicting
accident testimony)
G. If water falls in a restaurant, clean it up quickly. (Thoma 178 spill )
H. Manual book violation does not mean breach because cos set standards that
exceed ordinary care. (Walmart 181 fall)
I. Just because general custom does not prohibit liability (T.J. Hooper 185 tugs
did not have radio receiving sets)
J. Res Ipsa Loquitur
a. Even which does not ordinarily occur in the absence of negligence
1. (Byrne 187 barrel roll out of warehouse)
2. Air crashes do not normally happen w/o negligence. (Widmyer 202
even in bad weather)
b. Other causes, like conduct of P is eliminated by evidence
1. (Giles 193 elevator operator) – de emphasizes role of exclusive
2. Not applicable (Warren 200 car rolled backwards)
c. Negligence is w/in the scope of D’s duty to P
3. DAMAGES (Preston 208 bumped but later showed also fell from bunkbed)
4. ACTUAL CAUSE (BUT/FOR): If the breach had no occurred, the injury?
A. Need a but-for cause (Salinetro 212 xray when pregnant)
B. When two wrongdoers produce an indivisible injury, jointly and severally
liable for the entire damage (Landers 215 leak in pond killing fish)
a. (Landers 215 multiple fires coming)
b. When no but-for cause, no liability (Dillon 221 falling of bridge grabs
C. When two wrongdoers and only one could have caused the accident, hold both
liable. (Summers 222 one bullet hit eye)
D. Loss of Opportunity Doctrine 29
5. PROXIMATE CAUSE (all or nothing)
A. D is only liable for types of injuries risked by his negligence and to classes of persons
risked by his negligence. (Metcalf 235-rape when doorbell did not work)
B. Foreseeability: Person should have foreseen injuries on the same general type that
occurred and the general class of persons who would suffer them. (Palsgraff 239)
1. Fluky and weird accident, one bite rule (Doughty 248-Risk of splash, but chemical
2. Particular variety of harm is foreseeable. (Hammerstein 250- infection from walking
up and down hotel fire alarm)
3. No foreseeability and not member of the class-no liability (Mellon Mortgage 250-
rape in the garage) Criminal is an intervening force also?
4. When negligently driving, one should contemplate the risks created. When
borderline, jury should decide (Marshal 263)
C. An intervening force which falls squarely within the scope of the original risk will not
supersede D’s responsibility (Derderian 256-epileptic driver ran thru barricade)
1. The negligence of something else is the sole proximate cause of the injuries. Odds
were not changed by D;s actions. (Sheehan- 259 bus does not stop in bus lane)
2. D’s action is a cause, but not the immediately effective cause, which was a 3rd
persons negligence and not foreseeable. (Ventricelli-261 Collision between parked
3. Intervening Forces of Nature: D can escape liability if the harm done is different from
the harm that was risked by D’s conduct in the first place.
D. Rescue Doctrine: Danger invites rescue. Rescue is foreseeable. P can recover if
negligence prompts the rescue. (Wagner 247-P tries to help cousin who fell off train as
rounded a curve.)
E. Violation of a statute is negligence per se if the statute was designed to protect the class
of persons which P is a member of and the harm that occurred.
F. Known source of danger and one way which it can be caused (Huges 247-little boys
G. Thin Skull Cases: In negligence, it must have caused some harm to a normal person or
D must be at fault because he knew of P’s condition.

Contributory/ Comparative Fault

A. Common Law Rule: One person being in fault will not dispense w/ another’s use of
ordinary care himself. (Butterfield-272 riding too fast and hits d’s obstruction in the road)
Contributory fault
1. Last Clear Chance/ Discovered Peril: Allows negligent P full recovery when P was
left in a helpless position by his own negligence and D who had a full chance to avoid
injury, negligently inflicted it anyway.  Only applies if D actually did discover the
2. This doctrine poses problems 1. Conflicts with factory situations 2. Says the last thing
on the chain of events is more important
B. Standard contributory: If both are at fault, neither recovers (Davies- 286 donkey was in
road and D negligently drove over it)
1. Last Clear Chance cannot be used here.
2. P’s Illegal Activity: When P’s injury is a direct result of his knowing participation in
a criminal act, he cannot seek compensation for the loss.
C. Modified comparative law: If P is more than 49% in fault, will not recover (Sollin 274-D
drops baler on D who should not have been working when operating)
D. Comparative Regime: Recovers percentage of fault. One way is to assume required
compensation between the respective costs of P and D of avoiding injury. Up to JURY.
1. Treat the damages as whole and allocate them according to fault.
2. Restatement of Torts: The nature of the person’s ricks creating conduct, including any
awareness/ indifference with respect to the risks created by the conduct and any intent
with respect to the harm created by the conduct and the strength of the causaul
connection between the person’s risk creating the conduct and the harm.
3. Wassel 277-D opens the hotel door and gets raped. 97% hotel, 3 %, gets 30,000
4. Health care provider may not reduce liability for negligent treatment asserting P’s
inuries were originally caused by P’s own negligence. (Mercer 292-drunk)
5. Where the very issue is the safety device was meant to stop him from putting his hand
in, you can not say it was his fault. (Bexiga 296 hand in machine)
6. Leroy Fibre (299)

Assumption of the Risk

A. Assumed risk is now merged into the comparative neg fact.
B. When a patient assumes the risk in a new procedure, they cannot sue the doctor when he
treats them with care but it did not work out. (Boyle 303 new treatment passed away)
C. For essential services, hospitals cannot require you to sign a waiver. (Tunkl 304 he signed
a release releasing hospital of liability)
D. When you sign a waiver, D is not liable for inherent risks that would occur if reasonably
operated. (Moore 304 ATV training course)
E. When you have a job that has an inherent danger, you cannot sue when that danger
injures you. (Crews 308 Gas explosion injures gas co employee)
1. He had knowledge of the risk of danger, appreciated the risk, and voluntarily exposed
himself to the risk.
2. Inherent danger. Reasonable care must be taken for most jobs (Betts toys on stairs led
housekeeper to fall)
3. If an employer failed to provide a safe place to work, he may not assert assumed risk
as a defense. (Siragusa 312 Nurse hit by large hook on door)
4. Note: Bus is not liable for sudden starts/jerks which are necessary incidents.
F. Rider can assume risks inherent in sport, but not specific dangers from defective
equipment. (Bjork water skiing)
1. When engaged in sport and there is cheating, that is usual incidents of competition.
(No legal duty) (Turcotte 315 injured jockey)

Defenses not on the Merits

A. Reasons for a statute of limitations
1. Bar stale claims (unfair/costly)
2. Permits planning and avoids economic burden if D and insurance co (prices would be
high) could never know when liability ends.
3. When you amend your complaint, you can put the date that was first stamped
4. Usually one year for intentional torts and three for negligent torts but varies*
5. Starts counting the day of the injury OR when you should have known about it.
a. (Crumpton 321 frivulous suit because failed to file before)
Some leniency if you do not know that you have been injured. If you know you have
been injured, statute runs even if you do not know it was negligent.
a. (Shearin sponge was left after surgery, but did not notice till years later.)
b. (Shciele 324 Reasonable prudent person would have discovered)
6. Statute for minors: Does not start running till you hit 18 OR you have until you are 18
7. The clock gets stopped if servicemen overseas or tortfeasor has taken active steps to
prevent you from knowing you are a victim
a. (Grimes 322 Even though she did not know identity, he was not trying to obstruct
her filing)
8. When ongoing court could say 1. First day when it started 2. Injury did not happen
until after it stopped 3. Each time it happened is an additional injury
a. (Hoery 337 Public policy favored a new coa for each new trespass)
9. Court is unconvinced respression is a phenomenon that is separate from forgetting
(Doe 329 repressed memories of sexual abuse)
B. Compliance with a statute is not a defense. Minimum standard of care (Miller 342 could
not escape motel room)

Duties of Medical and Other Professionals

A. P must bring in an expert to show the standard of care is in medical community. (satisfies
1. So jury can see what the standard of care is right now.
2. Professionals ought to decide using their appropriate knowledge.
3. (Walksi 383 Did not show another doctor would have acted differently)
4. (Smith 397 called no experts and only relied on medical treatsies; legally insufficient)
B. The Good Samaratin Rule: If doc jumps into a situation in good faith, prohibits med mal.
1. Once they intervene and make it less likely someone else will help, held to the level of
a regular rescuer.
2. Immunity only applies when in a location compromised by lack of adequate facilities
(Velasquez 392 doc in emergency room)
C. Res ipsa can be applied
1. P receives unusual injuries while unconscious and in control of medical treatment and
paralyzed. All Ds who had control can be found guilty, exclusive control is not longer
strict requirement (Ybara 406)
D. Informed Consent
1. All information a reasonable patient would need to make a reasonable decision must
be divulged (Harnish 410 lost tongue function which was not told was a side effect)
2. Standard of disclosure also requires medical testimony (Woolley 412)
a. No duty to disclose statistical life expectancy because that is not a risk (Arato 416
b. If a patient declines a treatment, D has additional duty of advising on all material
risks (Truman 416)

Strict Liability
A. Traditionally fault created liability. (Weaver whether the musket went off or soldier did
anything wrong)
B. Brown 664 (two dogs fighting and D hits P while trying to break them up) Have to show
it was negligent/unlawful to be liable. Origin of torts.
C. Nuisance
1. If the nuisance leaves your property, you are responsible. (Bamford 670 kiln’s smell)
i. Even innocently, still liability. (Rylands 676 pond flooded into mine)
ii. If nuisance does not leave property, no liability. (Thomalen 682 fire)
D. Abnormal Danger Conceptions
1. Direct injury (victim was travelling on highway when killed by D blasting to get rid
of stumps) liability. (Sullivan 683)
2. Even if not direct anymore. (Exner 684 when explosion threw P from bed)
3. RESTATEMENT and S.L today including impoundments, hazardous wastes, lateral
support, blasting, nuclear energy, other high energy (62)

Vicarious Liability
A. Owner is liable if employee is acting within the scope of employment (Riviello 624 knife
in the eye) Good test is if employer might charge for what you did.
1. Was at a convention for work and drove to bar to see colleagues and accident.
Liability (Fruit 625)
2. Commuting does not fall into category (Faul 629) unless employer pays for it
(Hinman 627) or dual purpose (Ahlstrom 630 no dual intent because not when
performing the dual intent).
3. Does not have set hours. At bar talking business and then filling out expense reports
when set fire negligently. Liability (Edgewater Motels 631)
4. Different when employee is doing something for himself. (Lisa 635 violated with
ultrasound wand)
B. No liability when employee is frolicking, but is for a detour
C. Employee is liable also, but question if employer is liable. No liability when battery
because that is an intentional tort.
D. Types
1. Vicarious: something you are doing on behalf of another. Does not exclude liability
for the employee.
2. Respondent Superior: When is one person responsible for the actions of another?
E. When abuse of power is a well known hazard of the job. Liability. (Fahrendorff 639
counselor in group home makes sexual advances)
F. Employers who are not masters
1. If an employee has two masters both can be held liable (Kastner)
2. Foster parents are not agents of the state agencies (DC 644) Factors 73
3. Franchisor is not ordinarily liable (O’Banner 647 McDonalds slip)
4. Duty of hospital to provide emergency care is non delegable even when doctor is
independent contractor (Jackson 649)
5. When the work is inherently dangerous, duty can not be deleagated. (Pusey 650 guard
6. Owner of property is liable for negligence in building/making repairs to structures on
the property once the owner resumes possession. (Otero 654 bleacher falls)
7. How to check for Agent: (no contract, works for principal)
a. Agreed to work on behalf of the other
b. Agreed to accept direction from that person
c. Master has allowed them to work for them

Product Liability
A. In some extreme cases the privity rule(once they sold it to someone, who sold it to
someone else no longer liability) was put aside. (Thomas 696 mislabeled jar of poison
kills consumer)
B. If the nature of a thing is that if it negligently made, it will put someone in peril, then
when the manufacturer negligently makes something and danger is foreseen, liability will
follow. (MacPherson 696 wheel on car collapses)
C. The purpose of strict liability is to insure the costs of injuires resulting from defective
products that are borne by the manufacture rather than the injured person who are
powerless to protect themselves. (Greenman 698)
D. If a defect existed in D’s product when it left its control, D should be found liable for the
injuries caused by such defect (Lee 707 exploding Coca Cola bottle)
E. Manufacture defect: Was the product reasonable?
F. Design defect: Was the process reasonably?