Torts Attack Sheet
INTENTIONAL TORTS
Intent – no liability w/o fault
a) Purpose or
b) Substantially certain knowledge (close to 100%)
Transferred intent
a) Liability exists where:
a. D intends to commit one tort and commits another or
b. D intends to cause harm for another
Liability of people of reduced capacity
a) Insane persons and mentally ill – still liable
b) Children
a. Parents are not vicariously liable EXC:
i. If child’s tort is willful or wanton & damages are capped
b. Few states have age limits where children are not liable for intentional torts
Battery
a) D intends to harm or offend
a. Intent rule choice:
i. Single intent: Intent to contact
ii. Dual intent: Intent to contact + intent to cause H/O
b. What does offend mean?
i. Offensive to a reasonable sense of personal dignity or through prior knowledge
b) D causes contact with P’s body
a. What is bodily contact?
i. Ex: cane being tapped; shining light/blowing smoke; an extension of you
c) P is harmed or offended
Assault
a) Elements:
a. Intent (knowledge/purpose)
b. Apprehension (knowledge/not fear; must be aware of threat, must be reasonable)
c. Imminence (no significant delay)
d. H/O contact
b) Words alone cannot be an assault
c) Conditional threat: can be assault if there is a legal right to the condition
False Imprisonment
a) Elements:
a. Intent to confine
i. Cannot be merely transitory or harmless
ii. If the act causes an unreasonable risk, actor can be liable for harm caused (freezer hypo)
b. Confinement occurs and
i. Must be complete
1. Can be reasonable means of escape but the other does not know
a. Cannot refuse for inconvenience but can refuse if it offends dignity
2. Cannot be preventing one from going in a direction
ii. Confinement can be by:
1. Physical force or threat of it or
2. Legal authority
c. P is aware of confinement or harmed by it
Intentional Infliction of Emotional Distress
a) Elements:
a. D acts intentionally or recklessly
b. Conduct is extreme or outrageous (exceeding all bounds of decency)
i. Repeated or ongoing
ii. D continues after being asked to stop
iii. It’s in public (b/c of humiliation)
iv. Deliberately target vulnerabilities
v. Abuse of power
c. P suffers severe distress as a result
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i. Measured by intensity and duration
ii. Some courts require physical effects
iii. Usually so severe P must seek medical attention
b) A 3rd person can recover if
a. P is present (and D knows (to a certainty) that P is there) AND
b. 3rd person is related OR suffers bodily harm
AFFIRMATIVE DEFENSES TO INTENTIONAL TORTS
Self-defense
a) Elements:
a. Reasonable force that is
b. Not intended to inflict deadly or serious bodily injury
c. To defend against H/O contact that
d. D reasonably believes another is about to inflict intentionally upon him
b) No duty to retreat (Majority)
a. RS: Can use non-deadly force before retreating
i. Attempt retreat before deadly force is used EXC when in your home (castle doctrine)
c) Initial aggressor cannot use this defense EXC when victim becomes agressor
d) Use force proportional to the threat
e) Words/provocation not sufficient
Defense of third persons
a) If D reasonably believes third-party would have
i.
Third-party has right to self-defense
ii.
Intervention necessary for 3rd party’s protection
Defense of property
a) Use of not threatening reasonable force if
a. Intrusion isn’t privileged or other causes actor to believe it’s not privileged
b. D reasonably believes the intrusion can be ONLY preventable by force used
c. D has first asked other to desist or believes the request won’t be adhered to or harm will be done before it can be
made
b) Use of Mechanical Device Not Threatening D/SBH if
a. Use is reasonably necessary to protect the from intrusion
b. Use is reasonable UTC
c. Device is customarily used for such purpose OR reasonable care is taken to make its use known to probable
intruders
c) Use of Mechanical Device Threatening D/SBH if:
a. Privilege exists when actor would have privilege to prevent intrusion by intentional infliction of such harm if present
d) Mistake as to danger allowed; mistake as to privilege of other’s intrusion is not allowed
Arrest and Detention
a) The privilege to arrest can be invoked even if it does not invade the person’s own interests if either they have reasonable
belief that someone committed a felony or if that person committed a breach of peace in your presence
b) Under RS: A mistaken belief does not confer a privilege
Discipline
a) Parents can use reasonable force to discipline kids
b) Those in charge of kids have the rights extended to them; in loco parentis
Consent
a) Express:
a. Exceptions: Fraud, duress, lack of capacity, conduct out of scope of consent
b) Implied: What is customary, reasonably interpreted by body language
Private Necessity
a) Privileged to enter/remain on someone else’s land if it’s reasonably necessary to prevent serious harm to actor, land, chattels
or a third person or another’s land or chattel unless the actor knows
Public Necessity
a) One is privileged to enter land in the possession of another if it or reasonably believed to be necessary for the purpose of
averting an imminent public disaster
NEGLIGENCE
Duty
a) RPPUTC, including dangerous instrumentalities and sudden emergencies, RP will exercise more care in high danger
a. RPP has same physical traits, same mental ability and knowledge
b. Circumstances that count: children, superior skill, physical disability, emergency
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c.
Circumstances that do not count: children engaging in adult activities, low intelligence, insanity, intoxication and
mental disabilities
b) Child standard of care: similar age, experience, intellect EXC: when a child engages in an adult activity (inherently
dangerous)
a. RS §10(b): child under 5 incapable of negligence
c) Negligence per se:
a. Actor violates a statute that is designed to protect against 1) type of harm the actor caused and victim is 2) within
the class of persons
b. Excused violations:
i. Violation due to incapacity (child, disability)
ii. Acted reasonably to comply with statute
iii. Actor doesn’t or shouldn’t know what circumstances make the statute applicable
iv. The statute is confusing
v. Compliance would involve greater risk to actor or others
c. Statutory compliance
i. Compliance with statute does not preclude finding of negligence
ii. Almost never reasonable care per se
iii. If adoption of precaution would require violation of statute, actor cannot be found negligent
d. Licensing statutes (where one is required to have a license [driver, physician])
i. Does not prescribe behavioral conduct in the moment though some statutes do
d) Land Possessors
a. 50% of states use RPPUTC (Rowland) and 50% follow traditional approach
b. Traditional:
i. Trespassers: No legal right to be on another’s land, enters land without landowner’s consent
1. Undiscovered:
a. Activity: No duty (exc: refrain from reckless injury)
b. Condition: No duty (exc: refrain from reckless injury)
2. Discovered or anticipated
a. Activity: Ordinary care
b. Condition: Limited duty to protect against:
i. SBH from a
ii. Concealed
iii. Manmade condition
iv. Which the landowner knows about
ii. Invitees: On the premises in part for pecuniary benefit of landowner or land open to general public
1. Activity: Ordinary care
2. Condition: Ordinary care including duty to conduct reasonable inspection to discover and correct
hazards unless hazard if obvious (see open and obvious doctrine)
iii. Licensees: On land with permission but with a limited license to be there (includes social guests)
1. Activity: Ordinary care
2. Condition: Limited duty to protect harm from:
a. Concealed condition
b. That the landowner knows about
c. Attractive Nuisance: applies to children of tender years (although some may apply to teens)
i. Imposed liability of harm if:
1. D knows/should know kids are likely to trespass AND
2. D knows/should know condition involves unreasonable risk to kids AND
3. Kids don’t realize risk due to age AND
4. Utility to possessor of maintaining risk and burden of eliminating danger < risk to kids
5. D fails to exercise reasonable care to eliminate danger/protect kids
ii. Applies only to artificial conditions
d. Open and Obvious Doctrine: Land possessors cannot be held liable to invitees injured by open and obvious
danger conditions
i. Does not apply if P is distracted
ii. Does not prevent landowner liability – merely a factor used to assess liability
e. RS: Duty to flagrant (atrocious) trespassers is to refrain from willful or wanton injury unless trespasser is imperiled
and helpless or unable to protect himself
e) Medical Professionals
a. Practice Standard: Determined by the care customarily provided by other physicians – not own practice
i. Expert testimony necessary for proof EXC in obvious cases
ii. No need to show “good care”
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b.
Different Standards:
i. Strict Locality: Standard of physicians in same community
ii. Modified Locality: Standard of physicians in similar localities
iii. National Standard: Nationwide standard
c. Custom is dispositive in med malpractice
i. Deference is given to medical professionals
Teachers owe students zero duty of care
d. Res Ipsa Loquitor – breach of medical duty
i. (1) Injury causing event does not occur in the absence of negligence
1. Expert testimony usually necessary to fill in the common knowledge for fact finder unless it is an
obvious negligent act (i.e., object left in body)
ii. (2) Injury causing instrumentality is most likely in the control of the D
1. May be constructive/right of control – all Ds are liable that shared control
2. No exclusive control when attributable to frailty or previous condition (Kelly’s anal diseases)
f) Informed Consent – 2nd duty of care for medical professionals
a. Duty to disclose risks of medical procedures
b. What risks?
i. Majority: Risks that a reasonable patient would want to know (material risks)
ii. Risks that doctors customarily disclose
c. How to establish causation:
i. But for the doctor’s failure to disclose, the patient would not have taken the risk & would decline consent
1. Objective standard: Would a RPP decline consent?
2. Subjective standard: Would this particular person decline to consent?
d. Doctors typically do not have to disclose: success rates, experience level, life expectancy or benefits/risks of not
taking diagnostic test
g) Immunity
a. Family Immunity
i. Spousal Immunity: Almost complete abrogation
ii. Parent-child Immunity: Majority abrogated
1. Limited duty (MI, Neel): Parents should be reasonable, but have no duty if
a. Exercise of reasonable parental authority
b. Exercise of reasonable discretion with respect to provision of necessaries
2. Other states (NY): General duty but no duty to supervise
b. Federal Immunity
i. FTCA – limited waiver of sovereign immunity
1. Conditions:
a. Before filing suit, P must submit claim to the gov’t agency
b. Suit is not permitted until the agency refused payment or delayed over 6 months
c. State law governs the suit
d. Cannot be tried through jury – must be a bench trial
e. No punitive damages
f. Cannot assert strict liability claims
2. Exceptions (where gov’t preserves immunity)
a. Government activities (careless delievery of mail)
b. Defamation
c. Malicious prosecution
ii. Private Party Analogue
1. Waives sovereign immunity under circumstances where the U.S., if a property person, would be
liable (Olson)
iii. Feres Doctrine
1. If an active duty service member is injured “incident to service”, then there can be no recovery
against the U.S. Army.
2. Interpreted broadly
3. Does not bar recovery by a spouse/child of a serviceman if they are directly injured
iv. Discretionary Functions
1. Two-step test:
a. Was the challenged action mandated or did the government have a choice? (whas it up to
the government’s discretion)
b. Was the challenged act the type Congress meant to protect?
i. Does it involve some social, political or economic analysis?
2. Planning v. implementation
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c.
State and Municipality Immunity:
i. Most states enact tort claims statutes that provide for at least a partial waiver of sovereign immunity – a
small number retain complete immunity
h) Nonfeasance “No Duty to Rescue”
a. §37: An actor whose conduct has not created a risk of harm to another has no duty of care to the other UNLESS
i. There is a statute that requires action (§38)
ii. If a person undertakes to render services to another and who knows or should know that the services will
reduce the risk of physical harm
1. The failure to exercise such care increases the risk f harm beyond that which existed without the
undertaking or
2. The person to whom the services are exercising reasonable care in the undertaking
iii. Special relationship between person in peril and defendant (§40)
1. Formal and informal relationships
iv. Prior conduct creates a continuing risk of harm (§39)
i) Duty to Protect/Control Third Persons
a. 3d party source of harm  hurts P  sues D
b. Liability because D should’ve controlled/prevented the TPSH from causing harm
c. Duty only exists where there is a:
i. Special relationship
ii. Foreseeability of harm (Posecai)
1. Specific harm – aware of specific, imminent harm
2. Prior similar incidents – evidenced by previous crimes on or near premises
3. Totality of circumstances – takes into account additional factors and relevant circumstances
4. Balancing test – balances the foreseeability of harm against the burden of imposing a duty to
protect
d. School-student relationships:
i. More duty to protect students during the day or during school activities and when kids are on property than
off
ii. Rationale: In a closed setting, students let their guard down
e. College: Generally no duty to protect students with the respect to the pleasures or dangers of sex, alcohol, drugs and
overstudy – close cases are with attacks
f. Land-lord tenant relationships:
i. Generally no duty even if there is foreseeability EXC:
1. When a landlord has created or is responsible for a known, defective condition on the premises
that foreseeably enhances risk of criminal attacks
2. When a landlord undertakes to provide security – reasonable care standard EXC:
a. When a landlord has made no affirmative attempt to provide security and is not
responsible for a physical defect – then no duty
j)
Duty Based on Relationship with TPSH
a. Duty of care when risk posed by 3d party is within the scope of the special relationship
i. Custodian – those in custody
ii. Parent-child
1. Parents are not vicariously liable for their children’s torts but can be liable for failing o control
some specific dangerous habit of a child which the parent knows/should know in the exercise of
reasonable care
iii. Employer-employee
1. Generally vicariously liable for torts of employees committed within the scope of employment
2. Some courts hold employers can be liable for negligently hiring a dangerous person or negligent
supervision of employees
iv. Mental health professionals-patients (Tarasoff)
1. Duty to use customary care to decide if patient is harmful
v. Bar-keep/alcohol server (Brigance)
1. Bar: Limited duty when there is sale to minors or drunk people
2. Social hosts: Similar to alcohol providers
a. Some states hold minor servers are not liable
Breach of Duty
a) Steps: Identify AUC, ask if there is a factual dispute, identify why unreasonable
b) Breach tests:
a. (Carroll Towing) Hand Formula: B < PL
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i. B: Cost associated with untaken precaution
ii. P: Probability that injury will occur
iii. L: Cost of injury/damage (difficult to determine; take into account cost of cost)
b. Custom: Admissible as proof of negligence but not conclusive (TJ Hooper)
i. Departure from custom not conclusive but persuasive
c. Reasonable to:
i. Value life over property
ii. Avoid greater damage (Indiana Consolidated)
iii. Do what is customarily done
iv. Do nothing when danger is obvious (Stinnett, Pomer)
v. Spend small amounts of money to prevent large risks (Bernier)
d. If a cost is justified, then the cost will be undertaken (Coase Theorem)
e. Slip-and-fall injuries:
i. Majority of fact patterns:
1. D creates condition;
2. D discovered or should’ve discovered condition
3. D did not take precaution to avert within a reasonable mount of time
ii. Failure to fix issue/clean liquid when given notice and opportunity
iii. Circumstantial evidence used to prove amount of time and owner had actual or constructive knowledge of
condition
f. Res Ipsa Loquitor: “the thing speaks for itself – not particular breach identified
i. Injury/accident is of type that ordinarily occur through negligence
1. Rule out non-negligent explanations for the accident
ii. Injury is usually caused by person in D’s position (instrumentality in D’s exclusive control)
iii. P did not contribute to injury
Factual Causation – did the breach lead to the injury, if so, it is the cause in fact
a) Burden of proof: preponderance of evidence (more likely than not to be a factual cause of the harm)
b) But-for test: In the absence of the D’s act, the P’s injury would not have occurred
a. If D were careful, would P still have gotten hurt?? (If NO, breach is cause-in-fact)
c) Substantial factor test: when the D’s conduct is so significant
that it should be deemed a cause of P’s harm
d) Indivisible injuries:
a. Multiple sufficient causes:
i. Acts that are sufficient on their own are considered causes in fact
b. Merged causes: cause occurred at same time; do not know which breach occurred first
i. Each breach was is a substantial factor sufficient by itself to cause the harm that occurred
c. Loss of chance: Recovery of difference between chance of living
d. Sequential causes: only preempting cause is actual cause
e. Unascertainable causes: if P proves all Ds acted tortiously and one of the Ds must be responsible
e) Joint and several liability
a. Joint: P chooses either D and holds them 100% liable
i. Contribution: One D can get money from another if it has to pay the entire judgment unless D is insolvent –
then other D suffers
b. Several(proportional): Each D liable for its fractional share; trier of fact apportions fault – P suffers if one D is
insolvent
Proximate Causation (Scope of Responsibility)
a) What: harm is within class of risks created by negligent conduct
b) Who: P is within the class of harms risked by negligent conduct
1. EXC: Rescue Doctrine
c) How: Where a P’s injury is foreseeable but the injury is caused in a unique ay or manner, which could not have been
foreseen, the result is within the chain of proximate cause
d) How much: Extent of harm
1. Thin skull rule
e) Where/When: Intervening acts?
1. Types:
i. Acts of God
ii. Third-party negligence
iii. Intentional torts/crimes
2. Intentional and Criminal Intervening Acts
i. Does not cut off liability where the criminal/intentional act was foreseeability
ii. Very duty rule: No scope of liability limitation when it was the actor’s very duty to take untaken precaution
3. Suicide:
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i. Firm Rule: typically always a superseding cause; always cuts off liability
1. EXC: when you are in the care of the person and should know of risk
ii. Standard (trending): should be treated as any other intervening act; case-by-case
4. Negligent Intervening Acts
i. D liable if he put P in “heightened danger”
5. Termination of Risk: D liable until situation has normalized
Damages: must have actual harm – new trial is damages award “shocks the conscience”
a) Nominal: Trivial amount of money – symbolic – only available for intentional torts
b) Economic: must be proved in-fact
1. Lost wages
2. Medical bills (including future expenditures)
3. Includes adjustment for inflation and discounted to present
4. For children: socioeconomic status , intelligence, etc.
c) Non-economic (pain and suffering)
1. Despondency and sadness as well as agony associated with injury
2. Lost of enjoyment is not a separate category
3. P must be consciously aware of pain
4. Damage caps applied here
d) Punitive (punishing companies)
1. Rarely awarded
e) Attorney’s fees
DEFENSES TO NEGLIGENCE
Contributory Negligence: P’s fault is absolute bar to recovery (5 states)
Comparative Fault
a) Pure: bar recovery but reduces damages by P’s negligence
b) Modified: P negligence is not greater than negligence of D, if p fault is as great as combined fault of all Ds
Assumption of the Risk
a) Express: contractual waiver of liability
b) Implied Primary (activity includes risks): Lower standard of care in case of inherently dangerous activity
1. No duty to reduce risks but duty not to increase risks
2. Applies to sports and other recreation activities
c) Implied Secondary (defendant is negligent): waiver like express but implied from conduct
1. P must:
i. Know of the risk
ii. Voluntarily decide to encounter the risk
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Five Categories
a) Loss of Consortium – based on the recognition of a legally protected interest in personal relationships
1. Loss of spousal consortium
i. When one spouse is injured, the other spouse also sustains a loss
2. Three categories of damages:
i. Services: spouse cannot help out around the house
1. Not really an “emotional” claim – more of another economic claim
ii. Society: loss of companionship (pure emotional)
1. Emotional support from spouse is lost when spouse is injured
iii. Sex: lost sexual/physical component of marriage (emotional harm)
3. In consortium cases, you have to prove that the marriage included a sexual relationship and have been loving – may
be a claim but damages is slow
4. Unmarried cohabitants:
i. Court in Medley refuses to extend doctrine to these groups because the court would have to make an
investigation of the relationship to determine if the relationship is serious enough or loving
ii. Counter-argument: Married couples do not always have a loving, sexual relationship and disadvantages gay
couples
5. Loss of filial consortium (child is injured):
i. Majority do not allow (varies by jurisdiction)
1. WHY? Avoid of slippery slope of infinite expansion to siblings, grandparents, extended family
members, friends, etc.
6. Loss of parental consortium (parent is injured)
i. Majority do not allow; but some do (jurisdiction by jurisdiction)
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b) Fear of Physical Harm (direct/traumatic) - “near miss”
1. Negative emotion  fright
2. Impact rule (firm rule) – P must have been impacted slightly
i. Zone of physical danger: P must prove he is actually immediately threatened with physical injury
ii. Subsequent physical manifestation of distress (ex: heart attack)
1. These factors are considered to avoid fraudulent claims
c) Bystander
1. Negative emotion  sadness/grief
i. Dillion court:
1. Must make a contemporaneous observance (see it as it happens)
a. Near in time
2. Must be a close family member
a. Near in relationship
3. Must be present at the scene
a. Near in space
2. Some courts retain the “zone of danger” + three requirements above
3. In some jurisdictions, P must prove some subsequent physical manifestations
4. “Close relationship” determined by states but majority keep close relationship narrow
5. Some jurisdictions – P has to show up while the victim is on the scene or when you arrive
d) Relationship (pure emotional distress) – relationship and p is harmed which is a foreseeable result
1. Relationship with a funeral parlor
2. Medical misdiagnosis
3. Hospital mix-ups
4. Dead bodies
5. Vindictive lovers
e) Toxic Exposure:
1. Fact pattern:
i. Toxic dumping and individuals in the vicinity do not suffer any physical harm but they’re anxious
2. Two types of damages:
i. Compensation for their current emotional harm
ii. Compensation for medical monitoring
1. Argument: Because the company dumped the toxic substances, the person wants to get checked
for cancer or whatever disease
a. Problem: Too many plaintiffs, how do you limit this?
i. In order to prevail, greater than 50% of developing an illness unless you can
show the D behaved in a malicious or significant problem (Potter)
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