OVERVIEW: TORT LAW " A CIVIL HARM"
GOALS OF TORT LAW
1. Deterrence
2. Compensate
3. Economic Effciency (should not unduley burden economy)
4. Legal/Admim Effciency (should not cost alot or consume time)
5. Fairness
PROVING THE ELEMENTS
Burden of Production ? to get to a jury, the Plaintiff must produce sufficient
evidence on each element of NEG to allow a reasonable juror to conclude that
?pore likely than not?the facts plaintiff alleges is established
Burden of Persuasion ? Defendant may produce evidence to rebut the plaintiff?s
evidence, but the plaintiff bears ultimate burden of persuading the jury (or the judge
in a bench trial) of each element of its case
PREPONDERANCE OF THE EVIDENCE
REMEMBER VICARIOUS LIABILITY
THEORIES OF LIABILITY
NEGLIGENCE
STRICT LIABILITY
PRODUCTS LIABILITY
INTENTIONAL TORTS
1. Duty
1. Duty
1. Duty
1. Assault
2. Breach
2. Breach
A. Animals
B. Abnormally Dangerous
Activity
2. Defective Product
A. Manufactuering Defect
B. Design Defect
C. Warning Defect
2. Battery
3. Causation
3. Causation
4. Proximate Cause
4. Proximate Cause
3. Causation
4. Proximate Cause
4. False Imprionment
5. Damages
5. Defenses
6. Defenses
A. Consent
5. Damages
5. Damages
A. Contributory Negligence
B. Comparitive Negligence
C. Assumption of Risk
D. Immunities
3. IIED
B. Self Defense
6. Defenses
A. Contributory Negligence
B. Comparitive Fault
C. AOR
6. Defenses
A. Comparitive Negligence
B. Secondary AOR
C. Necessity
DUTY
Did D have a legal obligation to exercise some level of care to avoid risk of harming persons or property? (Judge determines as a matter of law)
2 STEP INQUIRY: 1) DID D HAVE A DUTY & 2) WHAT WAS THE SCOPE OF THE DUTY
GENERAL DUTY
An actor owes a duty of reasonable care
under the circumstances to those persons
who are foreseeably exposed to physical
risks arising from the actor?s conduct.
Nonfeasance - Defendant's conduct did not
create FRH (NO DUTY TO RESUCE RULE)
Did the Defendant's actions create a foreseeable
risk of harm to another?
Misfeasance - Defendant's conduct created
foreseeable risks of harm
NO - DEFENDANT DOES NOT HAVE A DUTY
UNLESS
SPECIAL RELATIONSHIP
(look at who has control)
A. Parent/child
B. Teacher/student
C. Between D and third person who poses
risk to another (See Tarasoff)
D. People engaged in a common undertaking
E.g. Farwell ? Two friends were hanging out
and got into a fight. Plaintiff was injured.
Defendant gave him ice and left him to sleep
in the back of his car. He died.
K RELATIONSHIP
YES -
Defendant owes Plaintiff a duty of reasonable
care unless there is a clar exception limiting
or eliminating duty or public policy supports
departure from general duty
INNOCENT PRIOR CONDUCT
Where a party negligently injures another, there is a duty to assist person in
peril. There is also a duty where a party?s non-negligent conduct places a
person in peril.
RELIANC ON GRATUTIOUS PROMISE
Voluntary assumption of duty based on very little extra affirmative conduct by
the promisor (e.g. writing a letter)
VOLUNTARY ASSUMPTION OF DUTY
INTENTIONAL PREVENTION OF AID BY
OTHERS
STATUS TRICHOTOMY / LANDOWNERS
INVITEE
Person invited onto the land,
primarily for business purposes
Person on land with landowner?s
Public Invitation: whether the
premises are held open to the
public in such a way that there is
a legally implied assurance that
the premises are reasonably safe
for entry.
Person on land with landowner?s
permission for his own
convenience or on business with
someone other than the owner
NORMAL DUTY RULES:
REASONABLE CARE (protect
them from conditions that create
unreasonable harm which they
know or could have discovered)
STATUTORY DUTY
1. Statutory negligence ? there is duty under the common law, but court can
use statute as standard of care for breach (i.e., Ferrell v. Baxter)
2. Statutory tort? legislature expressly created private right of action, statute
creates duty and std of care
3. Legislature mandates standard of care under existing common law claim.
See e.g., legislative codification of Tarasoff
LICENSEE
permission, including a social
guest
Duty not to create a trap or allow
concealed danger to exist on
property. Duty to warn of danger
they owner has actual knowledge
of.
CA DUTY RULES
TRESSPASER
Person on land w/o
permission
Duty to avoid willful
and wanton
misconduct or
through gross
negligence
1. foreseeability of harm to the p
2. degree of certainty that the p suffered the
injury
3. closeness of the connection between D?s
conduct and the injury suffered
4. moral blame attached to D?s conduct,
policy of preventing future harm
5. the extent of the burden to the D and
consequences to the community of imposing
a duty to exercise care with resulting liability
for breach,
6. and the availability, cost, and prevalence of
insurance for the risk involved
A FAIR DEAL
a. Allocation of loss
b. Fairness
c. Deterrence
d. Economic Considerations
e. Administrative Concerns
f. Legislative considerations
DUTY TO PROTECT THIRD PARTIES/
DUTY TO WARN
If there?s a foreseeable risk that a ? is going to be
injured by a party with whom a professional has a
special relationship and the professional has explicit
reason to know that the victim is actually in danger
according to their special knowledge, then there is a
duty to exercise reasonable care to protect that 3rd
person.
ELEMENTS:
1. Profession relationship w/ person whose conduct
needs to be controlled
2. Victim is readily forseeable and identifiable
A. Identifiable (actually named by patient, persons
who interact w/ patient and are aware of condition,
or doctor had reason to know third person is in
danger)
3. Foreseeable that victim would be harmed
4. Professional has special knowledge
SEE TARASOFF
SEE ESTATES OF MORGAN (Applied this rule to
psychologists, social workers, and other mental
health professionals who know/should have known
of patient's violent tendancies)
DUTY TO PROTECT AGAINST
CRIMINAL CONDUCT
imposes duty to take reasonable measures to
protect against foreseeable criminal activity. (e.g.
landlord-tenant, business owner-patron, property
owner-invitee)
Totality of the Circumstances Test
considers all of the circumstances surrounding an
event, including the nature, condition, and location of
the land, as well as prior similar incidents, to
determine whether a criminal act was foreseeable.
Balance these factors but don?t look at the burden
on the landowner
SEE DTD
DUTY OF ALCOHOL PROVIDERS
1. Questions to ask:
a. Did host personally serve the alcohol to the
person?
b. Was the person visibly drunk? ? limited
liability by restricting to persons visibly
intoxicated
2. Basis for imposing duty on server
a. Creation of the risk - Affirmative conduct
that creates a risk of harm to others
b. Serve a person that is visibly intoxicated ?
limited to visibility of intoxication
NEGLIGENT ENTRUSTMENT
One who supplies directly or through a third
person a chattel for use of another whom the
supplier knows or has reason to know to be
likely because of his youth, inexperience, or
otherwise, to use it in a manner involving
unreasonable risk of physical harm to himself
and others whom the supplier should expect
to share in or be endangered by its use, is
subject to liability for physical harm resulting
to them.
ANALYSIS:
1. that the D supplied a third party with the
chattel in question for use of the third party;
2. that the supplier of chattel knew or should
have known that the third party would use the
chattel in a manner involving an
unreasonable risk of harm; and
3. that harm resulted from the use of the
chattel
INDEPENDNET DUTY FOR
EMOTIONAL WELL BEING
Some emotional distress claims are directly
based on the defendant?s breach of an
independent duty obligation to act reasonably
for the plaintiff?s emotional wellbeing. (e.g.
Bodily Remains and Death Notification
Cases)
2 Theories -- MUST LOOK AT THE SOURCE
OF DUTY OWED BY D to P
DUTY TO PREVENT EMOTIONAL HARM
1. Direct Physical Risk - Physical Injury Required
2. Impact Rule ? allowing recovery where there was physical impact but
no physical injury. Over time, the requirement of physical impact was
often satisfied by even the slightest touching in an accident context. (a
speck of dust in the eye might suffice)
3. Zone of Physical Danger (Rule I)
Fear for One?s Own Physical Well-Being ? allows a party to recover for
pure emotional distress if the party was in the foreseeable zone of
physical danger but escaped without physical injury, at least where the
distress arose from a fear for one?s own safety. The zone of physical
danger is the geographic space within which a party is at foreseeable risk
of physical injury
4. Bystander in Zone of Physical Danger (Rule II)
Fear for the Physical Well-Being of Another ? allows recovery where a
family member was killed or seriously injured in an accident, and the p,
though within the zone of physical danger was not injured physically, but
suffered serious emotional distress at seeing the serious injury of a close
relative
5. Bystander Outside Zone of Danger
Reasonable foreseeability rule: a bystander may recover damages for
emotional distress under the rule of reasonable foreseeability if the
bystander satisfies the following conditions:
1. he or she is closely related to the injury victim, such as the parent or the
sibling of the victim;
2. the emotional injury of the bystander is caused by the
contemporaneous sensory perception of the event or conduct that causes
the injury, or by arriving on the scene soon thereafter and before
substantial change has occurred in the victim's condition or location;
3. the injury of the victim must be substantial, resulting in death or serious
physical injury; and
4. the bystander's emotional injury must be serious, beyond that which
would be anticipated in a disinterested witness and which is not the result
of an abnormal response.
Bystander Theory
Plaintiff witnesses the injury of
another. Defendant?s breached
duty not to negligently cause
emotional distress to people who
observe conduct which causes
harm to another
Direct Victim Theory
As a result of breach of duty owed
the plaintiff that is assumed by the
defendant or imposed on the
defendant as a matter of law, or
that arises out of a relationship
between the two.
SEE BURGESS (Pregnant Lady)
BREACH
Did D's conduct fall below the level of care owed to P? In light of foreseeable risks created by the conduct, was D's conduct unreasonable under the circumstances?
2 STEP INQUIRY: 1) Foreseeable risks of harm and 2) Unreasonable conduct (act or omision) in light of foreseeable risks
GENERAL STANDARD OF CARE
PROVING BREACH
The general standard of care is a reasonable person (average mental ability but
the same physical characteristics as the defendant)
COMMON SENSE
GENDER
Edwards v. Johnson ? Plaintiff was shot
by a woman alone in her apartment.
Dissent judge wanted a ?reasonable
woman standard?.
EMERGENCY
Majority: RPP
Minority: There must be
(1) an unforeseen combination of
circumstances which calls for immediate
action;
(2) a perplexing contingency or
complication of circumstances;
(3) a sudden or unexpected occasion for
action, exigency pressing necessity.
SEE Foster (Parking lot brawl)
PHYSICAL DISABILITY
RPP assumes that the RPP would have
the relevant physical disability of that
party (e.g. a blind person SOC would
become that of a reasonably prudent
blind person under the same or similar
circumstances). You must consider that
person?s knowledge of their different
ability.
MENTAL DISABILITY
SEE Bashi : Court held sudden
mental illness may not be used as a
defense to harmful conduct and that
harm caused by such individual?s
behavior shall be judged on the
objective RPP standard.
simply trusts jurors to use their knowledge of the world to decide what is reasonable
under the circumstances.
HAND FORMULA
PLAINTIFF'S BURDEN
A person is negligent for failing to take a precaution B, if B < PL.
CHILDREN
1. General Rule: Reasonable Child
of like age, intelligence, maturity, and
experience
2. Minimum age for negligence (look
at JX)
3. EXCEPTIONS
Inherently Dangerous Activity: When
the activity a child engages in is
inherently dangerous, as is the
operation of powerful mechanized
vehicles, the child should be held to
an adult standard of care.
Adult activity
Superior Skills Problem - An actor
must utilize not only those qualities
which as a reasonable person he is
required to have, but also those
superior qualities which he has.
P ? probability of it occurring
L ? magnitude of foreseeable harm
B ? burden of adequate precautions (take into account costs)
B >P x L ? no breach, acted reasonably
B < P x L ? breach, acted unreasonably
SEE Carroll Towing (Barge sanked because Defendant's handling of the lines. D failed
to take reasonable precautions)
SEE Pheasant Run (Plainiff was assaulted in hotel. P did not offer proof incident could
have been prevented by taking precautions)
JUDICIAL STANDARD
Court determines that no reasonable juror could find that a breach of duty existed or that
all reasonable jurors would have to find the existence of a breach of duty, the judge is
implicitly making a judgement as to reasonable conduct under the circumstances.
Holmes: when they are dealing with a standard of conduct, and when the standard is
clear it should be laid down once for all by the courts
SEE Goodman (guy slowed down, didn't hear train, went and died)
Cardozo: situations with extraordinary circumstances must be left to jury
SEE Pokora (same facts as above)
CUSTOM
CIRCUMSTANTIAL EVIDENCE
1. P may show that the D DEVIATED from custom
as evidence of unreasonable conduct
2. D may show that D?s COMPLIANCE w custom
demonstrates reasonableness
THREE APPROACHES
A. Dispositive: If defendant could prove that it
compiled w/ industry custom, then the defendant
could not be found liable for breach.
SEE Copeland (Guy fell through hole in floor; that
was the custom)
B. Custom not admissble. Doesn't matter if
defendant followed it, RPP is the standard
C. Not Disposivite but jury could conisder it in
determining if there was a breach.
SEE Klien (guy installded glass shower door that
broke. Defendant followed custom even though
he knew of safer option)
Evidence from which a reasonable
inference may be drawn.
Plaintiff has the burden of pleading,
production, and persuasion (unless RIL).
Shown through preponderance of the
evidence.
1. Constructive Notice: signifies that a
person or entity should have known, as a
reasonable person would have, of a legal
action taken or to be taken, even if they
have no actual knowledge of it
SEE KMART (slipped on grapes)
2. Mode of operation test ? allows P to
sue on the theory that the D?s choice to
display products in a certain way or to
opt for customer self-service may be
found to be unreasonable. (e.g. Self
Serve)
NEGLIGENCE PER SE
Statute becomes the standard of care and depending on JX could be conclusive proof of
negligence.
5 Part Test for Negligence Per Se
1. A criminal statute imposes a specific duty upon someone for the protection of others (30
mph speed limit)
2. The defendant neglects to perform that duty (defendant speeds)
3. Plaintiff is within the class of people whom the statute was designed to protect (speeding
statute designed to protect pedestrians and other drivers) 4. The statute was designed to
protect against the type of accident the defendant causes (speeding statute designed to
protect against collisions between cars and other cars/people)
5. Plaintiff?s injuries were caused by defendant?s violation of the statue (pedestrian would not
have been injured but for driver?s speeding)
Procedural Effects
Majority: Negligence per se creates presumtpion of breach, but Defendant may try to prove
application of a specific acceptable excuse
Minority: Standard remains RPP, but D's violation can be part of jury deliberation
Rare: Strict Negligence Per Se
Excuses: Incapacity; No Knowledge of Occasion for Compliance; Inability After Reasonable
Diligence to Comply; Emergency; Compliance Involves Greater Risk; Reasonableness under
all the Circumstances
RES IPSA LOQUITOR
Allows P theory that the mere occurrence of an accident is evidence
of negligence on D?s part. When a P cannot point to exactly how it
happened or why, but the accident is one that occurred b/c of
negligence
ELEMENTS:
1. Accident bespeaks negligence)
A. Proof: Facts of accident; Common knowledge; Common sense;
Experts
2. Inference that Defendant was Negligent: Jury must be able to
find that more likely than not the defendant?s NEG conduct or
omission caused the accident
A. Proof: Instrumentality or agent that caused the accident was
under the exclusive control of the Defendant (right of control (See
Ybarra); Disprove possible Neg of 3rd Parties; Remove the P as a
possible contributor (or at least less than 50% responsible in
comparative NEG)
3. Inference of Negligence (ION) - if all element of RIL satisfied
A. Permissive Inference (MAJ) ? Jury doesnt have to accept ION.
ION does not shift burden of proof, Plaintiff still needs to establish all
other elements of Negligence
B. Rebuttable Presumption (MIN) ? Jury must infer that the
defendant was negl unless D presents evidence rebutting the
inference. Burden of proof shifts to D
MEDICAL MALPRACTICE EXCEPTION
NEGLIGENT MEDICAL PERFORMANCE
Defined: Refers to all forms of carelessness arising in the care of patients.
Standard of Care: A physician must act with the degree of care,
knowledge, and skill ordinarily possessed and exercised in similar
situations by the average member of the profession practicing in the field in
the relevant geographic community
Establishing Breach: Plaintiff must show a violation of the degree of care
and skill required of a physician. Such standard of care is that which, under
similar conditions and like circumstances is ordinarily employed by the
medical profession generally. Custom sets the standard of care
Defining Custom:
A. Same or similar community standard: Physicians must meet at least
the standard of care existing in the ?same or similar? communities? and
experts from such communities may testify as to the appropriate standards
(i.e., country doctors will be held to the same standard of care as other
country doctors, but not necessarily to the same standard as big-city
doctors). May require experts from same/similar locality.
B. Nationally certified physicians: A growing number of courts impose a
national standard of care on nationally certified medical specialists
Expert Witnesses ? usually P has to provide expert testimony to show
both the customary practice and professional D's deviation from that
practice
Multiple customary standards/alternative approaches: If there are
several acceptable methods to perform a certain medical procedure, a
doctor?s compliance with any acceptable method protects her from
malpractice liability. Expert can support.
INFORMED CONSENT
Defined: providing patients with information related to their medical
problems so that patients may decide whether to consent to proposed
treatments
What info needs disclosed? (1) diagnosis (condition or problem); (2) nature
and purpose of proposed treatment; (3) risks and consequences of
proposed treatment; (4) probability that proposed treatment will be
successful; (5) feasible treatment alternatives; and (6) prognosis if
proposed treatment is not given
STANDARD OF CARE
1. Professional Standard ? Doctor is required to disclose those risks which
a reasonable medical practitioner of like training would disclose under the
circumstances
2. Prudent Patient Standard - disclosure duty is to be measured by the
patients need for info rather than by the standards of the medical
profession (Jury question)
CAUSATION - Omission must cause injury to P
1. (MAJORITY) Objective test: whether or not a reasonably prudent
patient, fully advised of the material known risks, would have consented to
the suggested treatment
2. (MINORITY) Subjective test: had I been informed of all of the risks I
would not have done it. Plaintiff has to prove this.
3. Idiosyncratic patient- patients/patients with particular wants or needs
that were known to the doctor and would alter her decision. If Doctor is
made aware of what a patient prefers would have an effect on what would
be material info to disclose they can be held liable, even in an objective
test jurisdiction. Plaintiff has to prove that the doctor was aware of the
factors that would bring this issue about.
Common Sense Exception - Obvious occurrence exception
If a physician?s conduct is so egregious and obvious that a layperson could
identify the breach of duty, no expert testimony is needed to establish the
duty of care and the breach.
CAUSATION
Did a causal connection exist b/w the D's unreasonable conduct and P's harm? Breach CAUSED injury, reasonable connect
2 STEP INQUIRY: But for test and Substantial Factor Test
BUT FOR TEST
Plaintiff must show that but for the defendant?s unreasonable
conduct, the injury would not have occurred.
SUBSTANTIAL FACTOR TEST
Plaintiff must show that the defendant?s unreasonable act was
more likely than other factors to have caused the plaintiff?s injury.
TYPES OF CAUSES:
1. Multiple factual cause ? there is no requirement that the
defendant?s act be the sole ?but for? cause of the injury, only that
it be a ?but for? cause. These are found in cases where neither
of the defendant?s negligent act was not enough to cause the
accident alone, however, each act was a necessary antecedent
to the harm.
SEE J.C. Penny ? (Lady wore coat and was set on fire)
2. Multiple sufficient cause ? each causal factor would alone
have caused the harm and the but for test does not work b/c
Plaintiff cannot pinpoint which exactly did it
3. Duplicative - where two parties are independently careless
and simultaneously cause a significant injury to which each
contributed
4. Preemptive - two sufficient causes of something, but one
occurs before the other. (e.g. Defendant negligently took care of
a dam that would have failed under normal rain conditions. The
rain unexpectedly was excessive and was enough to destroy the
dam and damage property.
5. Successive ? two causes that take place one after another
(e.g. the negligently set fire meeting with another fire that causes
injury)
CIRCUMSTANTIAL EVIDENCE SEE Ingersoll (Guy fell down stairs with box)
SINGLE INDIVISIBLE INJURY
Multiple defendants come together and cause the P one indivisible injury which cannot be reasonably
apportioned, they are all held jointly and severally liable, and the burden of proving that the harm
can be separated falls upon those defendants who contend that it can be apportioned. SEE Fugere
(Lacerated Liver Case)
States deal with this in multiple ways
1. Traditional - About 15 retain joint and several liability ? one D (usually the one w/money) can be
liable for entire recovery. p is made whole and D can bring contribution action to get money back from
insolvent parties. p could only bring a claim against the D with most money and get full recovery from
him
2. Several Liability - Another 16 have abolished J&SL in most cases, these states provide that a D
should never be required to pay more than their share of an award and have moved to individual
liability proportionate to judgments ? only pay their percentage.
3. Hybrid Joint and several liability approach
1. Some require all of the parties at fault, including p to proportionately cover an insolvent defendant?s
share
2. Others have retained J&SL only for economic damages and abolished it for non-economic damages
(pain and suffering)
- J&SL ? economic damages
- Several liability ? non-economic
ALTERNATIVE LIABILITY
Ds are independent tort feasors and thus each liable for the damage caused by him alone, and, at
least, where the matter of apportionment is incapable of proof, the innocent wronged party should not
be deprived of his right to redress. P must show more likely than not which caused the injury now both
are on the hook unless can prove they were not the one who caused. SEE Sommers (hunting case)
LOSS OF CHANCE
Plaintiff/s suffering from a serious illness are allowed to recover the value of the chance for a cure that
the doctor negligently destroyed or eliminated. What happens when a physician?s malpractice further
reduces a patient?s already smaller than 50% chance of survival from a disease or condition.
P must est through a preponderence of evidence that D caused injury, D's negligence caused the Ps
likelihood of achievening a more favorable outcome to be diminished. But for D's neg, P would have
better chance.
Calculate full wrongful death damages ($600,000), percentage before negligence (45%) ? percentage
after negligence (15%) = 30% x full wrongful death damages. $600,000 x 30% = $180,000
PROXIMATE CAUSE
Did the D?s obligation include the general type of harm the P suffered? Are there any intervening causes that are so unexpected that they are superseding?
GENERAL RULE OF LIABILITY
Defendant is liable for all harmful results that are the normal incidents of
and within the increased risk caused by his acts. In other words, if one of
the reasons that make defendant?s act negligent is a greater risk of a
particular harmful result occurring, and that harmful result does occur,
defendant generally is liable.
DIRECT CONSEQUENCES TEST
Defendant liable when their tortious action directly caused (no intervening
forces) the injury and traced to the negligence of the defendant.
E.g. Andrews: ?Is there a natural and continuous sequence-direction
connection? Defendant?s actions were a substantial factor in producing the
result.
FORESEEABILITY TEST
Whether the type of harm that occurs was foreseeable risk of defendant?s
negligent conduct
Foreseeable Harmful Results ? Defendant Liable
If a particular harmful result was at all foreseeable from defendant?s
negligent conduct, the unusual manner in which the injury occurred or the
unusual timing of cause and effect is irrelevant to defendant?s liability.
Unforeseeable Harmful Results? Defendant Not Liable
In the rare case where defendant?s negligent conduct creates a risk of a
harmful result, but an entirely different and totally unforeseeable type of
harmful result occurs, most courts hold that defendant is not liable for that
harm.
SEE Palsgraf / Andrews Hints
1. Whether there was a natural and continuous sequence between
cause and effect (but-for cause, wouldn?t be here without this, not
important)
2. Was the one a substantial factor in producing the other?
3. Was there a direct connection between them, without too many
intervening causes?
4. Is the effect of cause on result not too attenuated?
5. Is the cause likely, in the usual judgment of mankind, to produce the
result? ? foreseeable? Or, by the exercise of prudent foresight, could
the result be foreseen?
6. Is the result too remote from the cause, and here we consider
remoteness in time and space?
ARE THERE INTERVENING CAUSES?
Defined: A force came into motion after the time of defendant?s negligent act and combined with
the negligent act to cause injury to plaintiff.
Foreseeable Results Caused by Foreseeable Intervening Forces? Defendant Liable: D's
negligence caused forseeable harmful response from an intervening force or created a
foreseeable risk that an intervening force would harm plaintiff.
Independent Intervening Forces: Independent intervening forces stem from D's negligence but
are independent actions rather than natural responses. These may be foreseeable where D's
negligence increased the risk that these forces would cause harm to the plaintiff.
A. Criminal Conduct of Third Party: If defendant?s negligence created a foreseeable risk that a
third person would commit a crime or intentional tort, defendant?s liability will not be cut off by the
crime or tort.
Three Prong Test: A) The tortfeasor?s conduct must have been a ?substantial factor? in bringing
about the harm being complained of; and B) There is no rule that should relive the wrongdoer from
liability; C) harm giving rise to the action could have reasonably been foreseen and anticipated by
a person or ordinary intelligence and prudence
Unforeseeable Results Caused by Unforeseeable Intervening Forces? Defendant Not
Liable
1. Intervening forces that produce unforeseeable results (i.e., results that were not within the
increased risk created by defendant?s negligence) will be deemed to be unforeseeable and
superseding. This breaks the causal connection between defendant?s initial negligent act and
the ultimate injury.
Exceptions:
1. Eggshell Plaintiffs: take ? as you find them. Even though extent harm is not foreseeable
because you didn?t know that the ? had some weird ailment, it does not excuse liability. General
type of harm must be foreseeable but extent of harm need not be foreseeable. (Contra eggshell
psyche)
2. Safety Statute: Violation of the statute could be found to be an act of negligence which created
a foreseeable risk.
3. Subsequent Medical Malpractice: original tortfeasor is usually liable for the aggravation of
plaintiff?s condition caused by the malpractice of plaintiff?s treating physician.
4. Negligence of Rescuers - rescuers are viewed as foreseeable intervening forces, and so the
original tortfeasor usually is liable for their negligence. Danger invites rescue ? reasonably
foreseeable when in danger someone will rescue, if reasonably foreseeable then not a
superseding cause. You do not have a right to put yourself in danger, at the risk of another
Shifitng Responsibility Factors (Neg of inital tortfeastor and intervening actor):
Culpability of the intervenor (intentional, criminal, reckless, negligent, or innocent); competence of
the person upon whom reliance is placed; intervenor?s understanding of situation; seriousness of
danger; number of persons likely to be at risk of danger; length of time b/w conduct of parties;
likelihood that proper care will or will not be uses; case with which each of the parties can take
precautions
DAMAGES
What legally recognized losses has P suffered as a result of D's breach of duty?
DAMAGES RECOVERABLE IN THE ACTION
PERSONAL INJURY (COMPENSATORY)
Plaintiff is to be compensated for all his damages (past, present, and
prospective), both special and general.
Economic Damages: what would the person have been able to earn
but for the negligent act
1. Medical expenses (past & future) - All reasonably necessary medical
expenses and related treatment expenses, past and future, are
recoverable for injuries that were caused by the negligence of D. Must
show to reasonable certainty.
2. Life expectancy: use mortality tables
3. Lost wages (past & future) Courts differentiate between past earnings
losses (from the date of the accident to trial)
4. Future lost wages ?
A) Adult: Work-life expectancy ? how long you?ll be in job market,
average number of years in work force. Considers opportunities upon
graduation, lost advancement, promotions, and employment benefits.
B) Child: based on likely educational attainment of child. Look to
parents?education and skills.
C) Household services - recognized as a recoverable item of future
earnings losses, may be the most important item of damages for a loss
of non-employed person who works in the home.
Noneconomic ? speculative damages
1. Pain & Suffering (physical and emotional)
?Cognitive Awareness? (Maj)
?Grief and Sorrow? ? not really compensable because no economic
value
2. Life expectancy - Where permanent injuries are involved resulting in
losses over a lifetime, the plaintiff will have to establish his or her life
expectancy.
3. Loss of pleasure/loss of enjoyment of life - allowable for the
inability to engage in enjoyable and productive activities.
4. Emotional Distress Damages ? as a result of physical injury
PUNITIVE DAMAGES
available when defendant?s conduct is found to demonstrate the requisite higher degree of
culpability above negligence. Aggravated circumstances of intentional misconduct, such as
intent to harm, recklessness (conscious disregard), fraud, oppression, malice, or outrageous
conduct may be enough to permit these damages. Merely careless not enough.
SEE Matthias Factors (Bed Bug Case): 1) Did the Defendant benefit?; Duration / Repeated
action or behavior; Concealment à did Defendant try to conceal this?
WRONGFUL DEATH
Survival Stautes: Loss to decedent?s estate - losses and harm incurred from time of accident
to moment of death
Economic Damages: Medical expenses; lost wages; Funeral, burial expenses
Noneconomic ? depends, were they conscious, in severe pain, instantaneous death, etc.
P & S; Loss of enjoyment of life; Loss to dependents/heirs
Types of Death Losses
Before Death: medical expenses, earnings losses, pain and suffering, consortium, and loss
of enjoyment of life
After Death: funeral expenses, pecuniary contributions the decedent would have made over
his or her life to dependents, loss of companionship by dependents, grief of dependents,
and savings or accumulations of assets the decedent would have accrued over his or her
life.
OTHER RULES
Lump sum payment rule: promotes litigation efficiency
Nonrecoverable Items
Certain items are not recoverable as damages in negligence actions. These include; Interest
from date of damage in personal injury action; and Attorneys?fees.
Duty to Mitigate Damages: P has a duty to take reasonable steps to mitigate damages? in
property damage cases to preserve and safeguard the property, and in personal injury
cases to seek appropriate treatment to effect a cure or healing and to prevent aggravation.
Collateral Source Rule: Plaintiff is entitled to recover for past medical expenses as well as
the cost of reasonable diagnostic examinations. Payments to the injured party from a
collateral source ARE NOT allowed to dimmish damages recoverable by the tortfeasor.
AFFIRMATIVE DEFENSES
DEFENDANT BEARS THE BURDEN OF PROOF
CONTRIBUTORY NEGLIGENCE
(MIN.)
EXPRESS ASSUMPTION OF RISK
arises when one person gives explicit written or oral
permission to release another party from an obligation
of reasonable care. Can only be used for negligence.
?all or nothing? proposition, p is barred from
recovery if her unreasonable conduct contributes
in any substantial way to her injury. Thus, if a jury
finds p was 1% at fault while D was 99% at fault,
p would recover nothing.
TWO STEP ANALYSIS:
1. Look at the contract and assess if the contract
covers the injury alleged
2. If it does, figure out if the contract is void because
of public policy
Elements: D must prove by a preponderance of
the evidence that the P fell below the relevant std
of care and that the p?s breach of duty was a
cause-in-fact and proximate cause of the p?s
injury. Must do entire Negligence analysis.
Tunkl Public Policy factors:
Standard of Care: RPP or Negligence Per Se
Last Clear Chance: Permits the plaintiff to
recover despite his own contributory negligence.
Under this rule, the person with the last clear
chance to avoid an accident who fails to do so is
liable for negligence. (In effect, last clear chance
is plaintiff?s rebuttal against the defense of
contributory negligence.) (E.g. X negligently
parked his car on the railroad tracks. The train
engineer saw him in time to stop but failed to do
so. The engineer had the last clear chance, and
thus the railroad will be liable for the accident.)
1. It concerns a business of a type generally thought
suitable for public regulation
2. The party holds himself out as willing to perform
this service for any member of the public who seeks
it, or at least any member coming within certain est
stds.
3. When there is a gross disparity of bargaining power
between the parties;
4. When the party seeking to apply the exculpatory
provision offers services of great importance to the
public that are a practical necessity for some
members of the public such as medical services;
5. If the exculpatory clause is subject to typical
contractual defenses such as fraud or duress; or
6. When it is against public policy to enforce
agreements that insulate people from the
consequences of their own negligence.
IMPLIED ASSUMPTION OF RISK
Primary implied assumption of risk - owed no duty or did not
breach the duty owed. Not an affirmative defense. p has made
no express agreement to release the D from future liability, but he
is presumed to have consented to such a release because he has
voluntarily participated in a particular activity or situation which
involves inherent and well known risks.
Objective test: it depends on the nature of the activity in question
and on the parties' general relationship to the activity rather than
the particular plaintiff's subjective knowledge and awareness. (e.g.
participant in active sport)
Secondary implied assumption of risk - p is said to assume the
risk of the D?s negligence.
Three elements: tested by subjective std (trier of fact ?
burden on D to show evidence)
1. ACTUAL Knowledge of the risk ? aware
A. Split ? General Knowledge (D +) v. Specific Knowledge (P+)
B. Appreciation of the risk: Plaintiff must have comprehended and
appreciated the danger, its consequences
C. Voluntary exposure to the risk
Professional Rescuer Rule: majority rule: barred from bringing
actions against third parties whose prior negligence necessitated a
response in which firefighter is injured
COMPARITIVE NEGLIGENCE (MAJ.)
where contributory negligence is shown, the trier of fact weighs plaintiff?s negligence against that of defendant and reduces plaintiff?s damages accordingly.
Types of Comparative Negligence
Pure comparative fault ? negligent p recovers some damages from a negligent defendant regardless of the p?s degree of fault. Jury allocates percentages of fault for each party
Modified comparative fault ? in a two party accident the p?s recovery is barred if the p?s fault exceeds a certain percentage.
A. Greater than - In some jurisdictions the p is denied recovery if the fault of the p is found to exceed that of the D, more than 50%
B. Equal to - In other jurisdictions the cut-off point for recovery would be when the fault of the p found to be as great as that of the defendant, 50%
C. In a modified jurisdiction then, a p who was 40% at fault would receive 60% of his damages from a negligent D, but a p who was 60% at fault would recover nothing.
AFFIRMATIVE DEFENSES / IMMUNITIES
DEFENDANT BEARS THE BURDEN OF PROOF
INTRA-FAMILY IMMUNITIES
GOVERNMENTAL IMMUNITY
Injury to Person - Under the traditional view, one
member of a family unit (i.e., husband, wife, or
unemancipated child) could not sue another in tort for
personal injury. This view has undergone substantial
change in most states.
Common Law: cannot sue the gov?t unless they consent to be sued
Modern View: Common Law Rule Limited
Interspousal Immunity Abolished (Maj.) - Either
spouse may now maintain a tort action against the
other.
Exceptions
1. United States Still Immune for Certain Enumerated Torts
Parent-Child Immunity Limited (Maj.) - abolished
parent-child immunity; however, grant parents broad
discretion in the parent?s exercise of parental authority
or supervision. Minority retain parent-child immunity
but do not apply it in cases of intentional torts and
Negligence.
CHAIRTABLE IMMUNITY
Injured victims were precluded from recovering from
charitable organizations but could recover from the
negligent employees or volunteers of a charity.
Exception: immunize all volunteer conduct except:
willful and wanton misconduct, conduct outside of the
scope of the charitable duties, and bad faith conduct
Federal Tort Claims Act: the federal government may now be held liable to the same extent as a private
individual.
2. Discretionary Function Exception: Immunity is not waived for acts characterized as ?discretionary?(activity
is that which takes place at the planning or decisionmaking level)
as opposed to ?ministerial? acts (performed at the operational level of government (e.g., repairing traffic
signals, driving a vehicle).
TWO PART ANALYSIS:
1. Did the governmental actor have any discretion to do or not to do what the plaintiff claims caused
him harm.
A. Look for a policy/statute that tells the employee what to do.
B. If there is then it is not a discretionary function, it?s a ministerial function. If employee did not follow it then
cannot be immune. If they do follow the policy, they are immune.
2. Is the discretion the actor had the kind of discretion for which this exemption provides immunity
from liability?
A. Provides immunity only for discretionary conduct that involves policy making or planning.
B. The dividing line should be between: (1) Those functions that "rest on the exercise of judgment and
discretion and represent planning and policy making, fraught with social, political or economic questions for
which there would be governmental immunity; and (2) Those functions which involve the implementation and
execution of such governmental policy or planning for which there would be no governmental immunity.
Public Duty Rule: Where municipal immunity has been abolished, many apply the ?public duty? doctrine to limit
the scope of government liability. A duty that is owed to the public at large, such as the duty of police to protect
citizens, is not owed to any particular citizen, and no liability exists for failure to provide police protection in the
absence of a special relationship between the municipality and the citizen that gives rise to a special duty.
SEE City of Lowell ? fire dept. case, used hose and lowered water pressure instead of using sprinklers that
was the customary practice. Apply the discretionary function test, the decision not to use the sprinklers did not
involve planning and therefore the immunity does not apply.
STRICT LIABILITY
Liability without fault - question of law
DUTY
D's activity imposes an absolute duty to make safe SEE Reciprocal Risk: exposing people in the community to risk that they aren?t exposing you to
BREACH
Animals
Wild Animals? Strict Liability
1. The owner is strictly liable for injuries caused by wild animals
(e.g., lion or bear), even those kept as pets.
Domestic Animals? Knowledge Required
The owner of a domestic animal (including farm animals) is not
strictly liable for injuries it causes. Liability if the owner has
knowledge of that particular animal?s dangerous propensities
(i.e., propensities more dangerous than normal for that species).
This rule applies even if the animal has never actually injured
anyone.
Abnormally Dangerous Activity
An activity may be characterized as abnormally dangerous if it involves a substantial risk of serious harm
to person or property even when reasonable care is exercised. Whether an activity is abnormally
dangerous is a question of law.
TWO TESTS
Restatement (Second) ? balancing test
1. High probability of risk of harm
2. Likelihood of severe harm
3. Inability to eliminate risk by reasonable care* - need this one
4. Not a matter of common usage ? customarily carried out by great mass of people in the community (in
society ? transporting gasoline not a matter of common usage in the society)
5. Inappropriateness of location of activity
6. Danger outweighs value of activity to community (to society)
Restatement (Third)
1. The activity creates a foreseeable and highly significant risk of physical harm even when reasonable
care is exercised by all actors.
2. The activity is not one of common usage
CAUSATION
PROXIMATE CAUSE
PYRODYNE VIEW
RESTATEMENT 2nd
Intervening acts of third persons serve to relieve the defendant from strict liability for harm
resulting from abnormally dangerous activities only if those acts were unforeseeable in
relation to the extraordinary risk created by the activity. Bigger than reasonably
unforeseeable. Must at completely unforeseeable given the extraordinary risk to not be
liable
One carrying on an abnormally dangerous activity is subject to SL for the resulting
harm although it is caused by the unexpectable innocent, negligence or reckless
conduct of third parties
DAMAGES
DEFENSES
Contributory Negligence
plaintiff knew of the danger and his unreasonable conduct was
the very cause of the harm from the wild animal or abnormally
dangerous activity. Courts call this conduct ?knowing?
contributory negligence or a type of assumption of risk
Comparitive Negligence
Particular case P may have failed to exercise
reasonable care in a way that invites the
application of the defense of comparative
responsibility (carelessness).
AOR
P would only be denied recovery for voluntarily encountering
the hazard if she was going to receive some benefit from
that action, p may have her recovery reduced under
comparative fault.
PRODUCTS LIABILITY
DUTY
Manufacturer or seller not to place a defective product on the market (anyone in chain of distrubution)
BREACH
MANUFACTUERING DEFECT
Product that departs from its design specifications
1. Apply Rest.2d §402A (Seller = Chain of Distribution)
A) Defective condition ? product is defective if it leaves seller?s hands in a condition not contemplated by the ultimate consumer and
B) Unreasonably dangerous - the product is dangerous to extend beyond that contemplated by ordinary consumer who purchases it with the ordinary knowledge common to the
community as to the product?s characteristics.
2. Apply Rest. 3d (Seller = engaged in business of selling product)
A) Product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product
Proving Defect - p must prove the existence of the defect and show that the defect existed at the time it left the D?s hands (e.g. deviation from design, or circumstantial evidence
showing it failed to perform safely in its normal use); or defective per se
WARNING DEFECT
Manufacturer fails to warn consumers of a material risk of danger in the use of the
product, A warning defect may also exist when the warning given is inadequate.
Is the defect unreasonably dangerous?
1. Apply 402A (CET and RUT Test)
2. Apply Rest. 3d.
A product is defective b/c of inadequate instructions or warnings when the
foreseeable risks of harm posed by the product could have been reduced or avoided
by the provision of reasonable instructions or warnings by the seller
Is the warning adequate?
Factors
1. the explicitness of the warning, consequences of failure to heed warning, must
apprise user of the nature and extent of the risks/hazards (Target user alters degree
of warning ? think hairspray case)
2. whether the warning language is comprehensible to typical user
3. the clarity of the warning (font, location)
4. Conspicuousness/prominence of the warning, and
5. the means used to convey the warning (symbols)
DESIGN DEFECT
Exists when safety hazards in the design could have reasonably been eliminated. A design defect can be found if a reasonable, safer, cost-efficient design was technologically feasible when
the product was sold that would not unduly impair the overall utility of the product.
WHAT IS AN UNREASONABLY DANGEROUS DEFECTIVE PRODUCT?
APPLY 402A
APPLY REST. 3rd
PROVING DESIGN DEFECT
A) Consumer expectation test (CET) ? asks whether the product is more
dangerous than the ordinary customer would expect. Used when
consumer expectations about how products should perform under
particular conditions will be in the realm of jurors?common experience.
Plaintiff must prove:
(1) that the D manufactured or sold the product,
(2) that the product was unchanged from the date of sale
(3) that the product was used in a reasonably foreseeable manner,
(4) that the product did not perform as safely as an ordinary consumer
would have expected,
(5) that the plaintiff was harmed, and
(6) that the product?s design was a substantial factor in causing the harm.
A product contains a design defect when the
foreseeable risks of harm posed by the product
could have been reduced or avoided by
adoption of a reasonable alternative design
and omission of the alternative design makes
the product not reasonably safe.
Circumstantial Evidence
Under CET, P must produce evidence that the product failed
to satisfy the ordinary consumer expectations as to safety. In
determining whether a product?s safety satisfies the CET the
jury considers the expectations of a hypothetical reasonable
consumer, rather than those of the particular P. (No experts
needed)
Design defects: factors relevant in determining
whether the omission of a RAD renders a
product not reasonably safe:
- Magnitude and probability of the foreseeable
risks of harm
- Instructions and warnings accompanying the
product (APPY WARNING ADEQUACY
ANALYSIS)
- The nature and strength of consumer
expectations regarding the product, including
expectation arising from product portrayal and
marketing.
- The advantages and disadvantages of the
product and its proposed alternative design
may also be considered such as ?
- The likely effect of the alternative design on
production costs,
- The effects of the alternative design on
product longevity, maintenance, repair,
aesthetics, and
- The range of consumer choices among
products.
BIC Rule: If a product is designed so that it is reasonably
safe for the use intended, the product is not defective even
though capable of producing injury when the injury results
from an obvious or patent peril.
B) Risk utility test ? whether the product?s risks outweigh its
utility. A significant aspect of this inquiry is whether the defendant
could have removed the danger without serious adverse impact on
the product?s utility and price.
Is there a safer, feasible, cost-effective, alternative design that does
not impair product?s utility?
CA Risk Utility Factors:
- Gravity of the potential harm resulting from use of the product
- Likelihood that such harm would occur
- Feasibility of alternative design
- Cost of alternative design
- Disadvantages of alternative design
SEE Leightamer v. American Motors (Jeep 2nd Collision Crash )
- A product will be found unreasonably dangerous if it is dangerous to an
extent beyond the expectations of an ordinary consumer when used in an
intended or reasonably foreseeable manner.
SEE Valk Manufactering v. Dr. Rang (Guy was hit by a truck with a hitch for
a snowplow and it went through the door)
Two Prong Test (Min.): First apply CET, and then RUT.
HINDSIGHT PRINCIPLE: If, upon hindsight, the trier of fact
concluded that the product's design was unsafe to consumers,
users, or bystanders then they are found liable
Proving availability of RAD
· Expert testimony or prototype
· No experts needed if RAD is obvious
Proof of seller representation ? SEE Jeep Case
Proof of safety regulation violation (Defect per se); A
product design that fails to comply with a safety statute or
administrative regulation renders it conclusively defective
(defective per se) regarding the risks sought to be reduced
or eliminated by the safety rule. This Sets the floor ? you
automatically establish BREACH / Product is Defective
CAUSATION
MANUFACTUERING/DESIGN DEFECT
WARNING DEFECT
i. Plaintiff must show the defect existed when the product left the
seller/distributor
ii. But for the defect, the injury would not have occurred
iii. Second Collision ? defect was a proximate cause of the enhancement of
the injury.
Prove that the product caused the injury & Prove that a warning would have altered the user?s
behavior such as to avoid the accident
Heeding Presumption: an adequate warning would have been read and heeded. This presumption
can be overcome by contrary evidence, but the burden of proof is on the Plaintiff. Often it is difficult
or awkward for a claimant to est that he or she would have followed an adequate warning. To
better enforce the duty to warn adequately, about half the states have adopted this presumption
PROXIMATE CAUSE
Manufacturers are required to consider not only the foreseeable risks arising out of intended uses of product, but also those arising from foreseeable users, third parties, and
uses
Misuse : The misuse must be extraordinary and whether the act is reasonably foreseeable is to be determined by following retrospectively the sequence of events and looking
back from the harm to the negligent act (Look at this in Hindsight - given the harm that actually occurred)
State of the Art : Manufacturers should not be liable for unknowable or unforeseeable risks in design or warning at the time of sale.
DAMAGES
DEFENSES
Comparitive Negligence (Maj.)
Minority: Complete Bar to Recovery
Secondary AOR
INTENTIONAL TORTS
ASSAULT
Intentional creation by the defendant of a reasonable apprehension
of immediate harmful or offensive contact to the plaintiff?s person
a. Affirmative Voluntary Act
i. Words alone insufficient, you need words and other acts or
circumstances they put the other in reasonable apprehension of
imminent harmful or offensive contact w/ his person.
b. Intent
i. Defendant?s purpose or desire is to cause the apprehension, or
Defendant attempts a battery or false imprisonment and fails
ii. The person knows to a substantial certainty that the consequence
will ensue from the person?s conduct. In other words, the person
acts knowing that the consequence is substantially certain to result
iii. Transferred Intent
c. Causation/Volition
i. But for causation
d. Reasonable Apprehension of Imminent Contact
i. Imminence of threat means no significant delay
ii. Apparent ability to carry out threat (Vetter)
iii. Plaintiff must be aware of the threat
iv. Fear not necessary
v. Reasonable awareness (exception: Defendant knows of Plaintiff?s
sensitivity)
e. To a Person
BATTERY
A harmful or offensive contact with the plaintiff?s person intentionally
caused by the defendant
a. Intent
i. Defendant?s purpose or desire was to cause the harmful or
offensive contact or the apprehension of such contact (subjective
state of mind); or
ii. Defendant knew that such contact was substantially certain to
occur (subjective state of mind); or
iii. Transferred intent
b. Causation/Volition
i. But for Defendant?s affirmative voluntary act Plaintiff would not
have been harmed
c. Harmful or Offensive Contact
i. Harmful or
ii. Offensive to a reasonable sense of personal dignity
iii. Contact is deemed offensive if the plaintiff has not expressly or
impliedly consented
d. To a Person
i. Person includes body or things connected to the person
INTENTIONAL INFLICTION OF EMOTIONAL
DISTRESS
Intentional extreme and outrageous conduct by the
defendant that causes the plaintiff to suffer sever
emotional distress
a. Outrageous Conduct
i. Exceeds the bounds of decency/socially tolerable
conduct
ii. Words alone may be sufficient
iii. Special Relationship
b. Intent or Recklessness
i. Purpose or desire to cause such emotional distress
ii. Substantial certainty
iii. Recklessness (a high degree of risk of emotional harm
and D acts in conscious disregard of the risk)
c. Causation/Volition
i. But for causation
ii. Affirmative voluntary conduct
d. Severe Emotional Harm ? ED that no reasonable
person should have to endure
i. Reasonable person of ordinary sensibilities
ii. Evidence of significant emotional anguish
iii. Intensity and duration factors
iv. Objective evidence not required but helpful
v. Directed at p
vi. Secondary parties exceptions: family members present
and known to D
e. Determining outrageous conduct:
i. Abusing position of power ? defendants in unequal
relationship with plaintiff
1. Employer/employee, Teacher/student, Creditor/debtor,
Landlord/tenant
ii. Targeting p?s known vulnerabilities and susceptibilities
1. May find outrageous conduct if D targets race, sexual
orientation, sexual identity, gender status, psychological
conditions, or other vulnerabilities in systematic ways
2. Especially concerned when p is in a ?captive audience?
and is not able to get away from the targeting behavior
iii. Repeating undesirable acts or behavior
1. If D engages in undesirable conduct frequently or
continuously as often happens in debtor oppression,
employee harassment or stalking situations
iv. Threatening or committing acts of violence
1. Dickens (guy drove next to her started to yell at her)
FALSE IMPRISIONMENT
A. False Imprisonment: An intentional act
or omission by the defendant that causes
the plaintiff to be confined or restrained to a
bounded area
a. Elements:
i. Confinement
1. Actual or apparent barriers
2. No reasonable means of escape
3. Only brief time required
4. Knowledge by p usually required, belief
that they were not free to leave
5. Challengeable?
ii. Of a Person
iii. Causation/Volition
1. But for
2. Affirmative voluntary conduct
3. Words alone may be sufficient ? causing
p to believe he was not free to leave
iv. Intent
1. Purpose or desire to cause confinement
2. Substantial certainty
3. Transferred intent
Shopkeeper Privilege: when a person
reasonably believes that another has
stolen or is attempting to steal property,
that person has legal justification to detain
the other in a reasonable manner and for a
reasonable time to investigate ownership of
the property
Reasonable Manner: probable cause to
make a contemporaneous search of the
person and objects within that person's
immediate control.
INTENTIONAL TORTS / DEFENSES
CONSENT
Express - The plaintiff expressly consents if she, by words
or actions, manifests the willingness to submit to the
defendant?s conduct. The defendant?s conduct may not
exceed the scope of the consent
Implied - The plaintiff?s consent is implied when the
plaintiff is silent (or otherwise nonresponsive) in a situation
in which a reasonable person would object to the
defendant?s actions.
1. Apparent ? based on actions did the person consent
2. Effective Consent
3. Emergency - When immediate action is required to
save the life or health of a patient who is incapable of
consenting to treatment, such consent is ordinarily
unnecessary. Courts generally say that consent is ?implied
in fact,? but it probably is more accurate to say that the
treatment is privileged.
a. Even in an emergency situation, however, a competent
and conscious patient?s right to refuse treatment cannot
be overridden.
Vitiation of Defense
1. Exceeding Consent
2. Fraud, Mistake, Duress
- Consent by mistake is valid consent unless the
defendant caused the mistake or knew of it and took
advantage of it.
SELF DEFENSE
The defendant must reasonably believe that a tort
is being or about to be committed against himself,
a third person, or his property (objective
reasonable/ only reasonable force may be used)
Deadly force is permitted if reasonably believed
to be necessary to prevent serious bodily injury
Limitations
1. Reasonable Force - based on circumstances
(weapon used?)
2. Retreat Rules (deadly force only)
3. Verbal Provocation
4. Excessive Force
5. Aggressors cannot use the right to self defense
unless they abandons the fight, withdraws from it
and gives notice to his adversary that he has
done so. An act of withdrawal must be so clear.
NECCESSITY
A defendant whose property tort was justified by a public
necessity has an absolute defense
If justified only by a private necessity, the defense is
qualified (the defendant must pay for any damage
caused)
This privilege trumps a property owner?s right to defend
his property