Intentional Torts 1. Battery 2. Assault 3. False Imprisonment Intent to confine Actual confinement in boundaries created by D; P is aware OR harmed by confinement 4. Trespass to Land Prove an ownership or possessory interest to land; Intentional and tangible invasion, intrusion, or entry; and harms the plaintiff’s interest in exclusive possession 5. Trespass to Chattels Defendant intentionally interferes with P’s personal property; Without P’s consent; and P is HARMED by interference 6. Conversion of Chattels D intends to exercise substantial dominion over the item; The item is owned by the P; and D interferes with P’s ability to control the item (dispossession) 7. IIED: intentional act + that is extreme/outrageous + causes severe mental distress Frequency; Asymmetrical relations; Knowledge of vulnerability Third party: Present; and: either fam. mbr. or bodily harm Defenses 1. Self-defense “Reasonable belief” that someone is going to use “imminent unlawful physical force”; Not in retaliation or revenge; Proportional (reasonable force) 2. Defense of Others 3. Defense of Property Reasonable defense (not excessive); deadly or serious bodily injury force rarely acceptable for just property 4. Shopkeeper’s Privilege 5. Discipline Privilege 6. Recapture of Chattels 7. Consent Character of relationship between parties; Was consent verbally extended, physically manifested; Power relationship/symmetry between parties Exc: fraud, emergency, revocation 8. Public Necessity Act of public official Trespass/damage to private property Under apparent necessity (reasonable); and Seeks to advance a public good/interest 9. Private Necessity (same as above w/ public official & public interest focus) Must still pay Negligence Step #1 D owed P a Legal Duty: RPP standard (judge) Factors to consider for the RPP: Exceptional ability; Specific expertise or exceptional knowledge/training; Strength; Intelligence; Physical limitations/infirmities DO NOT CONSIDER: Mental infirmities; Insanity; Low intelligence; Intoxication If a carrier, higher duty of care than RPP owed to passengers to foresee danger, and guard or protect against danger Children: lower standard (age, intelligence, experience) (unless dangerous, adult activity) - Landowners’ Standard o Invitees: duty to inspect, make safe, and warn o Trespassers and Licensees: avoidance of willful or wanton conduct; Failure to exercise any care whatsoever in instances w/great probability of injury o Scope can change if they become invitee Guest Statutes Attractive Nuisance Doctrine: applies in tender years Open and Obvious Defense Nonfeasance Negligent failure to act in face of duty to do so: - Actor owed duty of care (1) - Actor failed to act on duty (2) - Failure to act resulted in injury (3) - Goes under duty in analysis—if met, RPP standard No duty to rescue: no duty to act / help others Exceptions: - Person knows (or should) their conduct has caused harm - Person created a continuing risk of harm and should act to minimize - If statute creates a duty to act - Begins to administer or rescue P Action as a Promise or Undertaking Starting an action and creating a reliance by a third party on that performance creates a duty Duty to Third Persons Actor who undertakes services owes duty of reasonable care if: - Failure to exercise = harm that wouldn’t have existed - Actor undertaken to perform - 3rd person relies on undertaking Duty to Protect from Third Persons Duty to protect P if recognized special relationship AND harm foreseeable / balancing test / totality of circumstances Special Relationships creating a duty to act: - Common carrier w/ passengers - Innkeeper w/ guests - Business or possessor of land open to public w/ lawful entrants - Employer to employees - School w/ students - Landlord w/ tenants - Custodian w/ those in custody Step #2 D Breached Duty of Care (jury) Construct RPP standard and show how D did not meet standard with circumstantial or common law evidence (e.g. risk v. utility), foreseeability of the harm What an RPP would do Cost-benefit analysis Customs: use as evidence Slip & Fall Theories: - D created and failed to take reasonable actions to remove the hazard - D did not directly create but knew (or should have known about) a hazard created by others - D’s mode of business operation made it foreseeable that others would create dangerous condition; D failed to take reasonable measures to discover & remove it Statutes – minimum std. Step #3 P suffered Actual Harm (int. torts can be nominal) Harm must be legally cognizable (not nominal- for neg.) Step #4 Actual Cause But-for test - If two D’s and two distinct injuries, each D is only liable for injury they caused If But-For doesn’t work: - Substantial factor test o Typically, in cases where two D’s both create one indistinguishable harm and do not act in concert w/ each other - Alternative Causation o Burden shifts to Ds to show who specifically caused harm or all will be joint and severally liable - Lost chance doctrine (medmal only) o Lost chance for doctor to prolong life or decrease suffering not taken, can be cause of action (did D exercise last opp’t to preempt / diminish P injury?) Step #5 Proximate Cause (jury) 1. Rule (Scope of Risk rule) - Is risk within the class of foreseeable hazards? - Is P within the class of foreseeable P’s? 2. Superseding Cause - Were the acts foreseeably caused after the initial breach? 3. Eggshell Plaintiff 4. Zone of Danger vs. Duty to World 5. Rescue Doctrine: D liable to rescuer if D placed P in danger & rescuer believed they were Other Actions for Negligence: Medical Malpractice – substitutes for Duty, + other 4 Medical Standard of Care - Objective standard: in determining care - P has burden of procuring expert witnesses - Mention referral duty where applicable Negligence Per Se – statute or regulation (law) - Clearly defined standard of conduct (1) - Intended to prevent the type of harm the D’s act or omission caused (2) - P is a member of class of person the statute was designed to protect (3) - Violation must be proximate cause of injury (4) - Replaces duty and breach - Licensing statutes NEVER basis Defenses: incapacity, unaware of need for compl., unable to comply, emergency, compliance = greater harm Res Ipsa Loquitur – occurrence implies negligence a. Accidents that don’t normally happen w/o negl. b. Device or agent that caused accident under exclusive control of D, AND c. Negligence not caused or contributed to by P (P can still interact with mechanism) P must sue employer directly (goes under breach) NIED: (also add straight Negl. claim) (a) Negligent act; (b) that causes (but-for analysis); (c) serious emotional harm; liable if: - D’s negl. placed P. in danger of imm. bodily harm and emotional harm results, OR - The negl. occurs in course of specific categories of activities, undertaking or relationship where negl. conduct likely to Bystander Recovery: (a) At the scene, suffered visceral reaction / emotional harm (b); (c) close member/fam (don’t have to prove all NIED elements also) Defenses to Negligence 1. Assumption of Risk (Primary): voluntarily engage in dang. activity (fball) (Secondary): P knowingly encounters risk of injury caused by D’s breach then intentional participation (like comparative fault) Implied: consent estab’d by action (sports, limited duty) Express: signed waiver; only negl. within scope of activity— courts: must be clear/unambiguous f/scope 2. Contributory Negl. v. Comparative Fault - Contributory Neg. bars recovery at all for P being negligent (exc: rescue doctrine, last clear chance, D’s reckless / intentional misconduct, D’s illegal activity) Rescue doctrine: rescue can’t be charged if D placed P in harm Last Clear Chance: D discovered / should have P’s neg and could’ve avoided—P’s earlier neg. doesn’t bar recovery - Comparative fault lowers P’s recovery in proportion with fault Strict Liability: Proof: P only needs to prove that tort took place “P need only prove that the tort took place and that the D was responsible. Don’t have to prove causation/intent.” Trespassing Animals Owner of animals; intrudes on another’s land (trespass); subject to strict liability for phys. harm; caused by trespass (Exc.: dom. animals, cattle stray from hwy) Abnormally Dangerous Animals: strict liability if owner had knowledge of dang. tendencies (modest) Abnormally Dangerous Activities: foreseeable / highly significant risk of harm; not common usage Escaping Impoundments: noxious substances; impounded liquids that percolate through soil Respondeat Superior Strict liability f/employers; employee negligence w/in scope of employment that causes harm Going and coming rule Frolic vs. Detour Servant v. Ind. Contractor: no liability for ind. contractors when a) person engages contractor, b) operates ind./sep. business, and c) person not liable for acts (main diff is control) Exceptions: retains control, hires ind. contractor who’s bad, & where activity is inherently dangerous Other Concepts / Claims: Transferred Intent: between torts and people Statutes of Repose – v. SOL (engineers) Informed Consent Rule: Phys. owes patient duty to disclose in a reasonable manner all significant medical info. that the phys. possesses or reasonably should possess & finds material for P to make an intelligent decision (cause of action) Wrongful Death Claims (based on statutes) Brought for losses sustained by decedent’s loved ones; focused (generally) on pecuniary; what is recoverable / who can bring claim depends on statute; recovery goes to survivors Survival Claims (based on statutes) Brought by rep. of estate; recovery goes to estates; recovery for pain & suffering Loss of Consortium Claim for damages suffered by family member as result of neg, / intentional act; distinct from NIED; embraces feelings Joint & Several Liability: P can enforce claim against all tortfeasors or one but can’t claim more than full damages (one D can sue other for contribution)
