TORTS FALL 19 - Issue Spotter INTENTIONAL TORTS Battery Intent - desire or substantial certainty & Act - harmful or offensive contact directly or indirectly occurs Nelson - contact w/bullet flows from original intent to contact *motive does not matter - insanity not a defense Full consciousness not purely reflexive or convulsive Polmatier - conscious of intent to harm, no insanity defense Contact - harm v injures (damages) Leichtman (disagreeable, nauseating, or painful) and Peters Test (offend ordinary not sensitive person, unwarranted by social usages) Dual v Single Intent Intend to make contact and knowing it is harmful or offensive Assault Apprehending contact that is unconsented to Words alone not enough, nor future threat Transfer of Intent - device for recovery when not direct intended target Transfer of person - transfer of tort, only for person not intended recipient Defenses Consent - express or implicit Customs Rules of the game Hogan exceptions (fraudulent concealment - nature or quality) Richard v Mangion - teenager fight (consent) Necessary and Reasonable force Slayton factors (reputation, dif in size Objective or subjective Young vase - defense of another Proportionality Principle Force cannot be excessive, immediate threat of serious bodily harm Defense of Property and Trespass Proportionality Trespass to Land (force if: intrusion not privileged, only terminated by force, request is useless) Trespass to Chattel and Conversion (continuum) Calculate Damages to Determine Harm US v Aurora case (cell destruction) Private v Public Necessity Pay for harm unless “act of god” False Imprisonment Intent to Confine (desire/purpose/substantial certainty) Consciousness of confinement Unconsented confinement (privilege as defense) Defense > reasonable means of escape IIED (No physical injury required) Extreme and Outrageous Intentionally/Recklessly caused the harm Pattern of conduct, position of power, knowledge of susceptibility Community Standard of outrageous Prove Severe Emotional Harm Dana case NEGLIGENCE - Duty > Breach > Causation > Damages Duty - Determine if a Duty Andrews v Cardozo Duty (C - foreseeable within orbit of duty) Especially Dangerous Emergency (not able to consider acts) Superior Skills (can raise standard) Youth/Minors (unless inherently dangerous or adults only) Disabilities (mental and physical = reasonable person with that disability) Per Se Special Relationship (superior knowledge/right to control) (Dr/Patient relationship) Breach - was SofC breached? Reasonable Person Standard Parrot Test (situation, knowledge of parties, all circumstances) Hand Test (B < PL) Restatements (magnitude of risk outweighs utility of act or manner) Negligence Per Se > violation of statute > lang of statute > class of persons AND type of harm Industry Custom > Industry standard > TJ Hooper and Walmart Res Ipsa Loquitur > no evidence (neg. Injury, defendant's exclusive control, no causal contribution, defendant superior access) Recklessness - (1) knows harm or knows facts that make obvious and (2) is indifferent to the risk that could cause severe bodily harm/death Causation - was the (n)egligence the cause of the harm But for Proximate Cause - greater cause Directly Traceable Intervening OR superseding (foreseeable) (boiling water spill intervening) Substantial factor > dilute one another? (continuous force until harm >harmless until acted upon>lapse of time) Type of harm foreseeable (not sequence of events-wall)(medical treatment) Eggshell plaintiff and Shabby Millionaire Multiple Sufficient Causes Concert of Action (knows conduct is a breach and provides substantial assistance/encouragement) Alternative (two defendants > shifts burden to determine ultimate liability) Market Share (fungible product, design hazard, inability to identify D, substantial share of market) Damages Joint & Several Liability Contributory Negligence (superior position) Apportionment Pure Modified > 50 or 49 jurisdictions Dobson (Wisconsin or Collective Defendant) Nominal, Compensatory, General, Punitive Defenses (Contributory Negligence or No Duty/No Breach) Assumption of Risk - consent>knowledge>appreciation>voluntary choice to encounter Implied - Schroyer Primary - Clover v Snowbird (type of danger, notice req) Wagenblast Factors (fit for regulation>great importance>open to public>superior bargaining>standardized adhesion>under control of subject to risk) Turnbough Waiver - clear/unmistakable lang>negotiated fairly Vicarious Liability Respondeat Superior - negligence of employer/tortious act of employee Santiago Employee Test McDonalds Scope of Employment Test (foreseeable connection>nature,time,place>work hired to do>incidental acts reasonably expected>freedom>amount of time consumed with personal errand) Mitigation of Avoidable Consequences Statutes of Limitation and Repose Doctrine of Fraudulent Concealment Duty to Warn - Dr/Patient Specific threat of serious bodily harm to a specific/readily identifiable victim Duty to warn third party if contagious disease Duty of Owners and Occupiers of Land Trespass > not wanton/reckless unless criminal trespass then to not intentionally harm Licensee and Invitee Slip and Fall (mode of operation >nature of business>property’s condition>pattern of events) shifts burden Open and Obvious Dangers NIED (zone of danger> degree of consanguinity> shock follows closely from accident> serious bodily harm or death) Strict Liability Injuries Caused by Animals > domestic OR wild Selected Dangerous Activities - Pyrodyne
