LEGAL 180 STUDY GUIDE M.T.
LEGAL 180 CH1
 TORT
o A civil wrong for which the courts will provide a remedy
o Remedy
 A means by which the violation of a right is compensated
o Criminal law: alleged by government
o Civil law: law of rights and duties between private persons (note
Europe)
 Tort
 Contract
 From Latin: tortus = twisted
o Five purposes of tort law:
 Peace
 No self help
 Deterrence
 Behavior modification through damages (money)
 Restoration
 To be “made whole”
 Justice
 Predictability and consistency
 Liability
o Fault/ seen through damages
 COA
o Suing tortfeasor
o Must prove elements (like prosecutor in criminal law)
 A portion of a rule that is a precondition of the applicability of
the entire rule
o Common law:
 Here, judge made law, but also…
 Cats
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o Intentional
 Tortfeasor desired result or knew with substantial certainty
that a result would follow
 Battery
 Assault
 Trespass
 False imprisonment
o Negligent
 Breach of a duty
 Causing an unreasonable risk of harm
o Strict liability
 Regardless of fault
 Inherently dangerous activity
 Causation
o But for test
 Think: single tortfeasor
o Substantial factor test
 Think: more than one tortfeasor
 KT’s on 12
LEGAL 180 CH’S 2,3, 4
 FORSEEABILITY
o To see or know beforehand
o Forseeability spectrum
 Freakish occurrence →certainty
o Subjective
o Objective
o Question:
 General- any risk
 Specific- this risk to this person in this scenario
o Chain of causation
 Particularized question is stacked in favor of unforseeability
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o Analysis
 Area
 Where
 conditions
 Activity
 Adult
 Child
 People
 Trespassers/visitors/guests
 Preparation
 Standards- norms
 Human nature
 Attractive nuisance
 Prior similar incidents
CH 3
 Battery
o Define
 Deep pockets and litigation
 Damages
o Compensatory
o Punitive
 Respondeat superior
 Act
o Voluntary movement of the body
 Person
o Extends to…
 Consciousness (vic)
 Intent
o Transferred intent
 Harmful or offensive
o Objective standard
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 Consent and privilege
CH 4
 Assault
o Reasonable apprehension of imminent harmful or offensive contact
 Causation
o But for
o Substantial factor
 Apprehension
o Consciousness
 FACE
o Free access to clinic entrances act
LEGAL 180 CHS 5,6
 False imprisonment: NOTE connection to this place
o Confining vic
o An area (bounded defined) by Def
o With intent
o For an appreciable period
 By force or threat of force
 Causation = But for or substantial factor test
o RS Applies
**FALSE IMPRISONMENT
 WHAT IS IT?
o The non-consensual;
o Intentional confinement;
o Of a person;
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o Without lawful privilege;
o For an appreciable length of time;
o However short(!)
 The person must be deprived of his liberty, or compelled to
remain where he does not wish to remain, or to go where he
does not wish to go
ISSUES:
 Remember Alterauge v. Los Angeles Turf Club
o Liable for False Imprisonment
 False Imprisonment can be committed by using words alone
o Reasonable apprehension on part of victim that he will not be
allowed to depart**
 Confinement
o Freedom of movement
o By legal asserted legal authority
 If no legal authority existed = FI
 Intent
o Must be more than negligence
o Automatic dams for FI
o Proven dams for Negligence suit
o Transferred intent applies
 CA requires consciousness of Imrpisonment
 False arrest
o False when not privileged
o Peace officer’s privilege to arrest
 Committed in officer’s presence, or
 Warrant – if fair on face ( no blatant irregularities)
 Reasonable mistake, priv not lost
o Private party priv to arrest
 Only in presence
 Shopkeepers privilege
SHOP KEEPER’S PRIVILEGE
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Penal Code §490.5(f)(1)
Elements:
 A merchant/shopkeeper may detain a person, for a reasonable time:
o For the purpose of conducting an investigation;
o In a reasonable manner;
o Whenever the merchant has probable cause to believe that the person
to be detained is attempting to unlawfully take merchandise from the
premises.
CH 6
 Malicious prosecution
o Initiation of criminal proceedings,
o Without PC
o With malice
o Proceedings terminate in favor of accused (in the initial prosecution)
 PC = Reasonable ground to suspect that a person has committed (is
committing) a crime, or that a place contains specific items connected with a
crime

 Abuse of process
o Improper use of legitimately issued court process
 Use of civil or criminal proceedings,
 With improper or ulterior motive
LEGAL 180 CH 7
 IIED
o
o
o
o
Extreme or outrageous conduct
With intent to cause severe emotional distress
Actual distress
Causation
 RS applies: w/in scope of
o : the conduct
 Extreme or outrageous
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o
o
o
o
o
o
 Must shock the conscience of society
 Knowledge of vic vulnerability makes case easier to prove
Common carriers
 Higher standard of care = higher rate of cases
 You are too fat to sit in that seat…
: intent
 Desire/ know with substantial certainty
 Even very great risk can suffice = recklessness
: severe emotional distress
 Need not show physical injury, but will increase damages if
shown; i.e. stomach problems
Causation:
 But for or S.F. test
Clinton v. Jones p73
Falwell p75
LEGAL 180 CH 8
CONVERSION AND TRESPASS TO CHATTELS
 Difference is in degree of interference with ownership
 Conversion
o Interference with possession of
o Personal property
o as if defendant has ownership (serious interference)
o with intent
o causation
 damages
 FMV at time of conversion
 Trespass to chattels
o Less interference with possession
 Damages
 Rent/replacement/actual damages
CH 9
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 STRICT LIABILITY
o Animals
o Conditions
o Pun’s with recklessness/ malice
o Land
 Non natural use
 Knew or SHK
CH 10
 Negligence
CH 11
 Duty
o Zone of danger test (Cardozo)
o World at large test (Andrews)
 Special relationship and omission
 Duty to help
o Only with S.R.
o Good sam laws
 Common carrier
o Innkeeper
o Employer/ employee
o Possessor of land
o Parent child
o Inmate and jailor
 Gratuitous undertaking
o Reliance
LEGAL 180 CH 12
NEGLIGENCE: BREACH OF DUTY
 Comparative standard
o State π’s injury
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o State acts/omissions by Δ
o Compare what a reasonable person would have done w/ what Δ did
o State conclusion (i.e. Δ was negligent b/c his acts did not conform to
a reasonable person standard)
Reasonable person
o Ordinary, prudent person who uses reasonable care
o NOT perfect person
o Unreasonableness equation
 Burden over risk
 Eventuality if risk is realized affects equation (bigger potential
injury calls for undertaking greater burden to avoid injury)
Danger/causation hypothesis
o Greater danger = greater caution
 Foreseeability of accident occurring
 Foreseeabilty of type of injury
 Burden or inconvenience of precautions
 Social utility of activity/product
 If the balance of the four is not reasonable, then the
duty of care has been breached
Foreseeability
o What would a reasonable person have foreseen
Burden of precaution
o Cost of
o Time for
o Effectiveness – effect on utility of activity/product
o Wet floor sign = no impact of utility of grocery store
 Closing every rainy day = huge effect on grocery store utility
Social utility
o The more beneficial the activity, the more risks a reasonable person
would allow in performing activity
Balance of risk to benefit = risk benefit analysis or risk utility analysis
Standard: subjective v. Objective
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o Most part, objective
 Physical characteristics
o Reasonable person has same traits as Δ
o Can be: blind Δ= blind R.P.
o Here: reasonable person is slightly subjective: what would a blind
person do
o Physical characteristics are judged with limitations only, usually not
gifts of talent
 Training changes this model:
 a race car driver may be held to a higher standard than
another driver
 a doctor is held to a higher standard of care when aiding
an injured person
 Mental characteristics: adult
o reasonable person has basic knowledge and intelligence needed in
everyday life
o with limitations, changes from physical characteristics:
 what would a person of normal intelligence have done, not
what a person of limited intelligence would have done
 ergo: more objective than the phys traits standard
o with special skills: standard is R.P. with those skills
 again, slightly subjective
 Mental Characteristics: child
o What would a reasonable child, of similar age have done
o Unless: engaged in an adult activity
 RIL
o Event must be one that does not occur without someone’s
negligence
o Instrumentality in exclusive control of defendant
 More likely than not due to Δ: loose standard
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 Must eliminate possibility that others caused accident
(probably not others is sufficient)
 BUT: Ybarra v. Spangard
 the unconscious patient sued all in operating room:
o treated as JSL
o Not due to π’s actions
 No (or very little) contributory negligence
 Custom and Usage
o What is the industry standard?
o Is one factor in duty analysis
 Violation of a statute
o Does violation allow tort action?
 Express or implied
o Was statute violated?
o Was violation excused?
o Was violation cause of accident?
o Was π in group that statute intended to protect?
o Per se, presumptive, or mere evidence
 Per se:
 Jury must find Δ liable
 Presumption
 Δ can overcome with enough evidence
 Mere evidence
 Jury can reject
o Compliance does not mean no negligence
 Gross negligence; willful, wanton, and reckless
o Gross negligence:
 Failure to use even a small amount of care
o WWR
 Having knowledge harm will probably result (very foreseeable)
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 Vicarious liability
o Employer employee
 Respondeat superior
 Scope of employment
 Detour = RS applies
 Frolic = no RS
o Joint enterprise
 To make money
 Depends on liability structure: in a general partnership, all
partners are VL for debts of other partners arising from joint
enterprise.
o Family purpose doctrine
 Cross of joint enterprise and negligent entrustment
 Doctor patient/ med malpractice
o Negligence
 Reasonable doctor of similar skill and training
 National perspective
o Informed consent
 Risks involved, etc.
 Reasonable person would be able to weigh risk/benefit
analysis
 Legal malpractice
o Requisite skill in that area
o Best judgment
o Reasonable care
o Due diligence
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