TORTS OUTLINE – MIDTERM
Tort Law
i.
3 varieties of Torts:
a. Intentional torts
b. Negligence
c. Strict liability
Stare Decisis – the policy of courts to stand by precedent and not to disturb settled points
i.
Reasons for departing from prior decisions
a. Prior decision was poorly reasoned
b. Prior decision is outdated
Intentional Torts
i.
INTENT DISCUSSED…
a. Can be transferred from person to person and tort to tort
b. Mistake of fact does NOT negate intent
i. Jury will consider state of mind but also if contact was intended
c. Mental illness does NOT negate intent
i. IF the person has the capacity to form intent
ii. Held to same standard as someone who doesn’t have a disability
ii.
BATTERY
a. Definition: the defendant intends to cause harmful or offensive contact with the
plaintiff and harmful or offensive contact with the plaintiff directly or indirectly
occurs
i. Offensive contact is a JURY question (Wallace v. Rosen)
1. Example…a person breaks his arm and someone helps to set the
break…the person claims he did not want the contact from setting
the break…is it a battery? The JURY will decide if it’s offensive.
iii.
ASSAULT
a. Definition: the plaintiff must demonstrate that the defendant intended to put the
plaintiff in apprehension (NOT FEAR) of IMMINENT harmful or offensive
bodily contact and the plaintiff actually apprehended imminent harmful or
offensive contact.
i. Court has questioned importance of actual ability to make contact versus
reasonable ability (Western Union Telegraph Co. v. Hill)
iv.
FALSE IMPRISONMENT
a. Definition: intentional and unlawful restraint, through force or threat of force,
which confines someone to a bounded area.
i. There is no false imprisonment if there is a REASONABLE means of
escape that is apparent/known to the restrained person
ii. Examples…Big Town Nursing Home, Inc. v. Newman
iii. Challenges…Parvi v. City of Kingston – does the person have to be aware
of the confinement?
iv. FORCE DEFINED (Restatement, Second):
1. Physical force
v.
vi.
vii.
2. Actual or apparent physical barriers
3. Threat of physical force
4. Duress other than physical force (i.e. threat to safety of a family
member)
5. Taking a person into custody under an asserted legal authority
(Enright v. Groves – dog leash case)
EMOTIONAL DISTRESS (an add-on to an intentional tort)
a. Definition: One who, without a privilege to do so, intentionally causes severe
emotional distress to another is liable (a) for such emotional distress, and (b) for
bodily harm resulting from it (State Rubbish Collectors Ass’n v. Silizoff)
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
a. REQUIREMENTS:
i. Extreme or outrageous conduct resulting in severely disabling emotional
response
1. “Extreme” and “outrageous” is an objective test measured by the
“reasonable person” test
a. personality of the plaintiff and relationship between
plaintiff and defendant should be considered
ii. Intent
1. Defendant acted for the purposes of causing the plaintiff severe
emotional distress
2. Defendant acted knowing with substantial certainty that their
actions would cause the plaintiff severe emotional distress
(bystander/third party claim)
a. Additional Requirements of Bystander Claim:
i. Physical presence of plaintiff plus awareness of
defendant
ii. (i) above and either (a) plaintiff suffers a physical
injury or (b) conduct directed at member of
plaintiff’s family
b. TRANSFERRED INTENT DOES NOT APPLY TO IIED
TRESPASS TO LAND
a. Definition: one who intentionally enters or causes a thing or third person to enter
land in the possession of another is liable to the possessor for trespass to land
i. HARM is not a requirement
1. If harm does occur, compensatory damages can be added to the
nominal damages of trespass
ii. Courts look at exclusive right of possession
1. A tenant who is in possession of property can sue for trespass to
land
iii. Airspace may pose an issue
1. Common law rule is that property extends downward and upward
indefinitely
2. Congress states airspace is not indefinitely extended and
underground is usually addressed by state statutes
iv. Permissible entry can be limited
viii.
1. If a person goes beyond the scope agreed to then a trespass has
occurred (Rogers v. Board of Road Commissioners for Kent
County)
v. NOT a trespass to land if only “use and enjoyment of property” impaired
1. Considered a NUISANCE not a trespass
TRESPASS TO CHATTELS
a. Restatement §217: a trespass to a chattel may be committed by intentionally (a)
dispossessing another of the chattel, or (b) using or intermeddling with a chattel in
the possession of another
b. Restatement §218: One who without consensual or other privilege to do so, uses
or otherwise intentionally intermeddles with a chattel which is in possession of
another is liable for a trespass to such person if (a) the chattel is impaired as to its
condition, quality or value, or (b) the possessor is deprived of the use of the
chattel for a substantial time, or (c) bodily harm is thereby caused to the possessor
or harm is caused to some person or thing in which the possessor has a legally
protected interest
Privileges/Defenses to Intentional Torts (defendant has burden of proof; standard is
preponderance of evidence)
i.
CONSENT
a. Can be expressed or implicit
b. Objective Test – would a reasonable person in defendant’s position believe
plaintiff is consenting?
i. Have to look at ALL circumstances
c. Medical Procedures – 2 scenarios a medical professional can give care w/out
consent:
i. Patient is unconscious – needs immediate care – treatment is needed to
save life or limb
ii. Patient consented to an operation – dr identifies conditions not identified
earlier – conditions endanger life or health of the patient
d. Fraud
i. Consent obtained through fraud is INVALID
1. A false representation of a matter of fact, whether by words or
conduct, by false or misleading allegations, or by concealment of
that which should have been disclosed, which deceives and is
intended to deceive another so that shall act upon it to his legal
injury
2. If fraud relates to some element of the facts that isn’t
central/important, meaning it wouldn’t have altered the person’s
decision to consent then the consent isn’t invalidated
a. This is left up for the JURY to decide
e. Illegal acts
i. Majority view: consent to illegal activities is not valid consent. There is no
privilege. The plaintiff can sue and the defendant will be liable.
ii.
iii.
iv.
v.
vi.
ii. Minority view: consent to illegal activities is consent. There is a privilege.
The defendant will not be liable. There may be statutes in place to inhibit
this view.
SELF-DEFENSE
a. Definition: a person is privileged to use reasonable force to defend himself against
a threatened battery.
b. Infrequent defense in torts but when arises the criminal law rules are carried over
and applied without much variation
c. Considering factors…
i. Retaliation
ii. Initial aggressor
iii. Reasonable belief (you can be mistaken and still use self-defense within a
reasonable belief)
iv. Amount of force
v. Retreat
vi. Deadly force
vii. Transferred intent
DEFENSE OF OTHERS
a. Definition: a person is privileged to use reasonable force to defend a third party
against a threatened battery.
b. Some jurisdictions do not allow for mistake of belief so this privilege can only be
used if there truly is a threatened battery
DEFENSE OF PROPERTY
a. Definition: the possessor of land is privileged to use reasonable force when it is
necessary to defend possession of the land against intrusion or trespass.
b. Mistake of a threat voids this privilege
c. Deadly force is not appropriate here
RECOVERY OF PROPERTY
a. Definition: a person is privileged to use reasonable force to recover their property
in the course of fresh pursuit of a person who has unlawfully taken the property
i. REQUIREMENTS:
1. Nature of privilege
2. Fresh pursuit
3. Limited to force reasonable under the circumstances
ii. Shopkeeper’s privilege
1. A merchant can detain for reasonable investigation a person whom
they reasonably believe to have taken chattel unlawfully
2. Most agree this applies within the store; some courts extend it to
outside the store (i.e. the parking lot)
a. The Restatement doesn’t address this so it becomes a
JURY question
NECESSITY
a. PUBLIC NECESSITY: a person who damages, destroys or uses another person’s
property in the reasonable belief that by doing so he/she can avoid or minimize
serious and immediate harm to the public is protected against liability of
intentional torts
vii.
viii.
ix.
b. PRIVATE NECESSITY: if a defendant is threatened, or reasonably appears to be
threatened, with serious or imminent harm, the defendant may take reasonable
measures to prevent or minimize that harm
i. The defendant will have to provide compensation for the harm caused by
their actions
AUTHORITY OF LAW
a. Arrest
DISCIPLINE
a. Parent/child privilege
b. Teachers have this privilege but slightly different
JUSTIFICATION
a. This privilege is reserved.
b. Sindle v. New York City Transit – justification used when the court feels it is not
fair to impose liability on the defendant and their actions are close to another
privilege but not quite there
i. This privilege gives the court too much power which is why it isn’t used
often
Negligence
BASIC ELEMENTS:
i. Duty (standard of care)
ii. Breach
iii. Causation (factual causation and proximate/legal causation)
iv. Damages
DEFINITION
i. The omission to do something which a reasonable [person] would do or doing something
which a prudent and reasonable [person] would not do
a. An act or failure to act
MEASURING NEGLIGENCE (always consider circumstance
i. Reasonable person standard – objective test
ii. Tullgren Case – a sliding scale – not limited to situations where harm will more likely
than not occur
a. Likelihood and magnitude of risk BOTH important
b. Should weigh costs and benefits also
iii. United States v. Carroll Towing Co. – B > PL
a. B equals burden, P equals probability, L equals injury
b. Not truly mathematical – based on circumstances
STANDARD OF CARE
i. Custom and Usage
a. Trimarco v. Klein – evidence of custom and usage within industry + evidence that
defendant conformed with custom and usage
i. this is only evidence --- not conclusive of a breach of standard of care
ii.
iii.
iv.
v.
vi.
ii. evidence of compliance is not always reasonable so could be a breach of
standard of care
b. Proving requires:
i. Expert testimony
Emergency Doctrine (as a circumstance)
a. If under normal circumstances, an act is done which might be considered
negligent, it doesn’t follow as a corollary that a similar act is negligent if
performed by a person acting under an emergency, not of his own making
b. Who decides whether this doctrine applies?
i. The court makes the initial determination as to whether the doctrine can
apply as a matter of law based on the circumstances of the case and then
the jury will decide if the emergency was sudden, unanticipated and not of
the defendant’s own making
Physical Disabilities (as a circumstance)
a. Expert testimony is often required to determine if the reasonable person would
have acted like the person with the physical disability
b. If a person has greater abilities, that person will be held to greater standards per
the Restatement. Majority has not adopted this view.
Minors
a. The amount of care that a reasonably careful child of the same age, intelligence,
and experience would use BUT a child will be held to an adult standard if they are
engaged in an inherently dangerous activity
Insanity and Mental Illness
a. Persons who suffer from a mental illness are generally held to the standard of care
of a reasonable person who does NOT suffer from mental illness
i. A few courts will consider treating sudden unanticipated mental incapacity
in the same manner as sudden unanticipated physical incapacity. This is
the minority view.
Professionals
a. Professionals must exercise the level of care that the ordinary and prudent
member of the profession would under the circumstances
i. Lawyers – (1) learning, skill, ability, (2) best judgment, (3) reasonable and
ordinary care – Hodges v. Carter
b. Specialists must exercise the level of care that the ordinary and prudent specialist
would use in the same circumstances
i. Medical doctors
1. National Standard v. Locality Rule v. Locality or Similar Locality
Rule
2. Physician-focused standard v. Patient-focused standard (court
determines which the jurisdiction will use)
a. Physician-focused: what would a reasonable physician
disclose to the patient?
b. Patient-focused: what would this patient want to know to
make the decision?
3. Reasonable Patient Standard (used more often as more objective)
a. A reasonable person would want to know:
i. Nature
ii. Consequences
iii. Material risks
iv. Alternatives
v. Etc….of the procedure (Scott v. Bradford)
4. Physician’s Privileges
a. A physician need not disclose risks that either ought to be
known by everyone or is already know to the patient
b. A physician may withhold if the disclosure would be
detrimental to a patient’s total care or best interests
c. A physician may perform treatment in an emergency where
the patient is in no condition to determine whether
treatment should be administered
Negligence Per Se (violation of a statute)
BASIC ELEMENTS OF NEGLIGENCE PER SE
i. Statute was violated
ii. Plaintiff is in the class protected by the statute
iii. Harm is the type the statute was designed to prevent
iv. Appropriate to use violation of statute to demonstrate breach of duty
***if dealing with regulations rather than statutes, there is a split in jurisdictions as to
where NPS applies
***the court will decide the purpose of the statute (applies to ii and iii)
APPROPRIATE (to use a violation to set a breach of standard of care)
i. Facts Considered…
a. Common Duty
b. Notice
c. No Fault Liability
d. Financial Impact
e. Causation
WHAT IS THE EFFECT OF NEGLIGENCE PER SE?
i. Unexcused violation = breach of duty as a matter of law
ii. Violation creates presumption that the defendant breached a duty, but the presumption
can be overcome by showing that the defendant’s act was excused
iii. Violation = some evidence of a breach of duty (used by very few jurisdictions)
***the court decides which of these approaches will be used
EXCUSES AGAINST NEGLIGENCE PER SE
i. The violation is reasonable because of the actor’s incapacity
ii. The actor neither knows nor should know of the occasion for compliance
iii. The actor is unable after reasonable diligence or care to apply
iv.
The actor is confronted by an emergency not due to their own misconduct
v. Compliance would involve a greater risk of harm to the actor or others