2012 FALL
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Torts Outline
Professor:
Text:
Jason Gillmer
Prosser, Wade and Schwartz’s Torts: Cases and Materials (12th Edition)
I)
INTRODUCTION
1. Development of Liability Based Upon Fault
A. Hulle v Orange - Regardless of intent, the doer of harm is liable for the
harm they cause.
B. Weaver v Ward - A person is not liable for harm caused if they are not
able to avoid, (harm was unavoidable).
C. Brown v Kendall - Plaintiff has burden of proof in determining that
defendants harm was either willful or negligent.
D. Cohen v Petty - A person is not liable for damage caused by their
unforeseeable incapacitation.
E. Spano v Perini Corp. - A person is liable for damage caused by certain
actions that are inherently dangerous, without being negligent.
II)
Part I – NEGLIGENCE: A Breach of the Standard Duty of Care
1. History
2. Cause of Action Elements
A. Duty of Care
B. Breach of Duty
C. Causation
D. Damage
3. A Negligence Formula: Did you know or should you have known of a
condition that gives rise to a foreseeable risk of harm and did you act
reasonably in light of the risk?
A. Likelihood of harm (Cohen, Spano, Lubitz, Blythe, Pipher, Carrol
Towing)
B. Seriousness of harm (Pipher, Chicago, Carrol Towing)
C. Benefit of conduct (Chicago)
D. Cost in preventing harm (Davison, Carrol Towing)
E. Learned Hand Model: B<LP (Carroll Towing Co)
i. Burden < Damages * Probability = Negligent
ii. Burden > Damages * Probability = Not Negligent
iii. Economically efficient, rewards eff. decision makers
4. The Standard of Care
A. The Reasonable and Prudent Person: A standard that must remain
objective (Vaughn, Delair)
i. Mental capability and ability cannot be taken into account for
determining the standard of care required by society
ii. Custom and Usage (Trimarco)
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1) Custom and usage is not a replacement for the
reasonable person standard but can help to inform the
jury about:
a.
The judgment, experience and conduct of
many,
b.
The practicality of a precaution and
c.
The readiness with which it can be
employed.
iii. Emergency Situation (Peerless)
1) Adjusted SoC - a person has a the standard of care of a
reasonable person in the emergency situation
2) Exception - the emergency situation cannot have been
directly caused by the plaintiff
iv. Physical disabilities (Roberts (blindness))
1) Physical disabilities are to be accounted for as a
circumstance, not a lowering of the standard of care
required
2) What would a reasonable and prudent person with this
disability do?
v. Children (Robinson, Lubitz)
1) Lower SoC - a child is to be held to the same standard
of care as a reasonable child of similar age, maturity,
experience and training. To protect childhood
2) Same SoC - a child is held to an adult standard of care
when performing adult activities. To protect society
3) “What would a reasonable person of like age,
experience, maturity and training do?”
vi. Mental Illness (Breunig)
1) Negligent - in cases where the harm caused by the
mental illness is foreseeable, pre-existing condition
2) Not Negligent - when the mental illness incapacitates
without notice, similar to stroke duty relief.
3) Mental illness does not excuse liability for 3 reasons
a.
When one of two people must suffer a loss it
should be the one who occasioned it.
b.
To encourage the insane person to be
controlled by interested people
c.
The fear of “insanity” claims
B. Professionals
i. “Professionals must have and use the knowledge, skill and care
ordinarily used by members of their profession in good
standing.” (Heath)
ii. In a professional malpractice case you need an expert to prove
negligence, unless the negligence is obvious to a layman.
(Boyce)
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iii. Professionals are not liable for mere errors in judgment
(Hodges)
iv. Doctors should be held to national standards of care when
nationally accredited. (Morrison)
1) Doctrine of Informed Consent
a.
Duty: A doctor has a duty to disclose
material risks associated with a particular
course of treatment (Scott v Bradford)
i. Breach: what a reasonable patient would
want to know.
ii. Disclose any economic or research
interest.
b. Causation
i. Whether a reasonable patient in the
circumstances who knew the risks would
have gone through the procedure
anyway OR
ii. Whether the individual plaintiff would
have gone through with the procedure
even armed with knowledge of the
material risk?
c. Exceptions
i. Something that everybody should know
ii. Disclosure may be to the patient’s
detriment
iii. Emergency/Incapacitation situation
5. Violation of Statute: Negligence Per Se
A. Generally
i. Use a statute as a shortcut to establish what a reasonable and
prudent person would do. (Martin)
ii. Judge decides if it applies and its effect
iii. If the plaintiff fails to prove that the statute applies then the
case falls back on traditional common law
A. Applicability of Statute
i. Threshold questions of using a statute for determining
negligence. (Perry v S.N. and S.N.)
1) Is the statute designed to protect the class of people that
were injured?
2) Was the injury the type of injury that the statute is
designed to protect?
ii. Account for policy considerations after the threshold is met
1) Does the statute define the duty or does the statute
create the duty? (Is there an underlying common law
duty)
2) Prior notice of the duty
3) Does it impose strict liability
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4) Does it impose ruinous liability
5) Are the defendants the direct or indirect cause of the
harm
B. Effect of Statute
i. A violation of a statute without excuse is negligence (Martin v
Herzog)
ii. Violation of a statute creates a rebuttable presumption of
negligence and a reasonable excuse relieves liability. (Zeni v
Anderson)
6. Proof of Negligence
A. Evidence – something to demonstrate that the person knew or should
have known.
i. Circumstantial Evidence: Evidence of one fact from which the
existence of the fact to be determined may reasonably be
inferred
ii. Circumstantial evidence can be used to establish negligence.
(Banana Peel Cases - Goddard v Boston & Maine R.R. Co.,
Anjou v. Boston, Elevated Railway Co., Joye v. Great Atlantic
and Pacific Tea Co., Jasdo v F.W. Woolworth Co.)
iii. Direct Evidence can also be used and it includes witnesses.
iv. Notice must be actual or constructive
B. Res Ipsa Loquitor: “the thing speaks for itself”
i. The burden of proof shifts to the defendant when (Byrne v
Boadle):
1) The event is one that does not ordinarily occur in the
absence of negligence.
2) The instrument of the harm was under the exclusive
control of the defendant.
ii. Some RIL cases require expert testimony to establish that the
event would not ordinarily occur in the absence of negligence
(McDougald v Perry)
iii. In any case where it is equally probable that the negligence was
that of another then the doctrine of RIL does not apply. (Larson
v St. Francis Hotel)
iv. When harm comes to someone while under the exclusive care
of a group of individuals then each member of the group is
liable without an excuse. (Ybarra v Sponard)
v. In RIL a jury is permitted but is not compelled to find
negligence. (Sullivan v Crabtree)
PART II – LIMITED DUTIES OF CARE
1. Failure to Act
i. There is no general duty to rescue or aid (Hegel v Langsam)
ii. Moral reasons for imposing a duty to rescue, render aid or
prevent harm from third parties.
iii. Public policy reasons for not imposing a duty include
1) Line drawing
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2) Making Matters Worse
3) Personal Autonomy/Individual Liberty
iv. Good Samaritan laws protect people who do choose to help
regardless of a lack of duty.
v. Exceptions to the general duty not to rescue or aid (L.S. Ayres
& Co. v. Hicks):
1) Special Relationship
a. Homeowner to Guest
b. Business owners to invitees
c. Employer to employees
d. Common carrier to passenger
e. Inkeeper/Hotel to guest
f. Legal custodian to his charge
g. Occupier to entrant
h. Parent to child
i. Husband to wife
2) Innocent or negligent injury by an instrument under the
control of the defendant
3) Negligent injury caused by the defendant
4) Statute
5) Contract
6) Voluntary assumption of a duty where they rely upon
assistance to their detriment:
a. Increasing the danger
b. Misleading the plaintiff to believing the danger
is over
c. Depriving them from help by others
vi. A special relationship can be used to assume responsibility for
the actions of another. (J.S. and M.S. v R.T.H)
2. Owners & Occupiers of Land
A. Trespasser: one who enters or remains on the property of another
without the right or privilege to be there.
i. General Duty: there is no duty owed to trespassers except for
willful or wanton injury.
ii. A limited duty is imposed when harm is known to threaten a
trespasser. (Sheehan v St. Paul & Duluth Ry. Co).
B. Licensee: one who enters by permission or with the owner’s consent
i. Duty to Licensee: is to take reasonable steps to avoid injury,
and to warn of hidden dangers of which the owner is aware.
(Barmore v Elmore)
ii. Permission can be implied (e.g. sidewalk)
C. Invitee: one who enters by permission for the purposes of the owner
i. Duty to Invitee: is an affirmative obligation to prepare and
protect with reasonable care. (Cambell v Weathers)
ii. An invitee may become a licensee if their location and
purposes change. (Whelan v Van Natta)
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D. Persons Outside the Established Categories
i. Children: lower reason is expected of children so owners have
a higher duty of care with them.
ii. The Attractive Nuisance Doctrine excuses children for their
trespasses and applies when:
1) Trespass by children is foreseeable
2) AND landowner knows, or should have known, of
the danger
3) AND the child will not be able to defend from that
danger.
iii. Fireman Doctrine: under the common law, public safety
personnel (firefighters, police officers, EMTs, etc.) are treated
as licensees, so that the owner does not owe them a duty to
inspect the premises or to make the premises reasonably safe.
E. Rejection or Merging Categories
i. Apply reasonable person standard of care to any person instead
of using traditional categories of persons. (Rowland v
Christian)
IV) PART IV – CAUSATION IN FACT
1. Sine Qua Non – But For (in latin)
i. Plaintiff has to prove that defendant’s negligent act, in fact,
caused the harm. (Perkins v Texas and New Orleans Ry Co)
ii. The But For test of causation – if the harm would not have
happened but for the negligent conduct of the defendant then
they are liable.
2. Proof of Causation (Reynolds v Texas & Pac. Ry. Co.)
i. If the conduct would have greatly multiplied the chance of the
result
ii. Does the conduct naturally result in the harm?
3. Concurrent Causes
i. Single Indivisible Rule – Where separate acts of negligence
combine to produce a single injury each tortfeasor is
responsible for the entire result, even though his act alone
might not have caused it. (Hill v Edmonds)
ii. Substantial Factor Test – when dealing with concurrent causes
the question is whether the defendant’s negligent conduct was
a substantial factor in causing the damage. (Anderson v
Minneapolis, St. P. & S. St. M. R.R Co.)
4. Problems in Determining Which Party Caused the Harm
i. Double Fault & Alternative Liability: burden of proof shifts to
defendant when multiple negligent people could have caused
the harm, even if only one of them actually caused it.
(Summers v Tice)
ii. Market Share Liability (Sindell v Abbot Laboratories)
1) Threshold Requirements
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a.
V)
Plaintiff suffers an injury from long ago use
of a product
b.
Defective and fungible product caused harm
c.
Substantial share of the market are brought
in the suit (90% for sure)
2) Plaintiff must prove the defendants breached their duty
of care.
3) If breach is proven then the burden is shifted to the
defendants to prove that they did not produce the
product that was the actual cause of the injury.
4) If defendant fails to prove innocence they are liable for
the percentage of its total market share.
5) Plaintiff absorbs market share not covered by a liable
defendant.
PART IV – PROXIMATE OR LEGAL CAUSE
1. Policy Question: decision to deny liability for otherwise actionable conduct,
based on policy, common-sense, justice, fairness, etc.
i. Arises out of a judicial sense that a defendant, even one who
has been negligent, should not automatically be liable for all
the consequences, no matter how improbable or far-reaching.
2. Determining Proximate Cause
A. Foreseeability
i. Defendant should be held liable for what results can be
anticipated. (Ryan v. New York Central R.R. Co., “Wagon
Mound No. 1”)
ii. Forward looking
B. Direct Result
i. When harm is the directly traceable result of a defendant’s
action then foreseeability is irrelevant and the defendant is
liable. (“In re Arbitration Between Polemis and Furness, Withy
& Co. )
ii. Backward looking
3. Unforeseeable Consequences
i. Eggshell Skull Doctrine: when assessing damages for negligent
injury to a person the defendant must take the plaintiff as they
were at the time of the injury. (Bartolone v. Jeckovich)
ii. Palsgraf v. Long Island R.R. Co.
1) Cardozo: We owe a duty of care to those whose injury
is of a type that made our conduct unreasonable in the
first place. Duty to foreseeable plaintiff (zone of
danger).
2) Andrews: there is a duty to the world at large to refrain
from acts that may be foreseen to unreasonably threaten
the safety of others.
4. Intervening Causes
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i. Type v Manner Distinction: As long as the type of injury can
be anticipated, the manner in which it came about is irrelevant.
(Derdiarian v. Felix Contracting Corp.)
ii. The negligent actions of others are foreseeable
iii. The malicious conduct of others is not considered foreseeable
1) Exceptions exist: bank and vault, running car,
background check on security guard, etc.
5. Rescue Doctrine: if the defendant injures a person then it is foreseeable that
somebody will come to the aid of that person and because it is foreseeable
then defendant is liable for harm to the rescuer. (McCoy v. American Suzuki
Motor Corp.)
i. Necessary elements:
1) Defendant was negligent to the person rescued and
such negligence caused the peril or appearance of peril
to the person rescued;
2) The peril or appearance of peril was imminent;
3) A reasonably prudent person would have concluded
such peril or appearance of peril existed;
4) The rescuer acted with reasonable care in effectuating
the rescue
VI) PART V – DAMAGES
1. Requisite: evidence of damages is required for any negligence cause of action,
without damages there can be no compensation
2. Nominal – minimal in size and for the purpose of vindicating a right
3. Compensatory
A. Object: to return the plaintiff to the state which they would have been
in if the tort never happened
B. Maximum Compensation: a reviewing judge may decide that the
jury’s verdict is unreasonable and must be set aside as a matter of law
(Anderson v. Sears, Roebuck & Co.)
i. Damages are unreasonable when they:
1) Fall outside the range of fair and reasonable
compensation OR
2) Result from passion or prejudice OR
3) Are so large that they shock the judicial conscience.
(Richardson v. Chapman)
C. Collateral source rule: payments made to the injured party are not
credited to the tortfeasor’s liability. (e.g. worker’s comp, insurance
coverage, medical debt forgiveness) (Montgomery Ward & Co., Inc. v.
Anderson)
D. Duty to Mitigate: plaintiff is not able to recover for damages if a
reasonable person would seek to mitigate the damages. This is not a
requirement that the plaintiff mitigate. (Zimmerman v. Ausland)
i. Factors for reasonableness
1) Risk involved
2) Probability of Success
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3) Expense
4) Pain Involved
5) Age of Victim
E. Types of Compensatory Damages
i. Economic (special)
1) Lost Wages
2) Future Earning Capacity
3) Past Medical Expenses
4) Future Medical Expenses
ii. Non-Economic (general)
1) Pain & Suffering (physical)
2) Pain & Suffering (emotional)
3) Loss of ability to function
4) Enjoyment of Life
5) Quality of Life
6) Disfigurement
4. Punitive Damages
A. Punitive Damages: awarded above and beyond the compensatory
amount to punish and deter. (Cheatham v. Pohle)
i. Generally available in intentional torts
ii. Not available in a negligence cause of action
iii. Plaintiff is not entitled to punitive damages
iv. Considerations for amount:
1) Wealth of the defendant matters
2) Reprehensibility of conduct
3) Extent of the harm
4) Rule of thumb maximum: 10:1 ratio punitive to
compensatory
PART VI – DEFENSES
1. Affirmative Defenses: are to be used after the plaintiff has proven all elements
of the defendant’s negligence in order to mitigate the defendant’s liability.
2. Contributory Negligence
i. Common Law Rule of Contributory Negligence: if the plaintiff
was at all responsible for the harm by their negligent behavior
then they are completely barred from recovery. (Butterfield v.
Forrester)
ii. Last Clear Chance Doctrine: If the defendant has the last clear
chance to avoid the accident but does not, then, the plaintiff
can recover regardless of their own negligence. (Davies v.
Mann)
1) Only applies to contributory negligence but is an excuse
in every contributory negligence jurisdiction.
2) Defendant must have an opportunity to avoid the
accident
3. Comparative Fault
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i. Comparative negligence is where a defendant may still be held
liable even if the plaintiff was negligent. (McIntyre v.
Balentine)
ii. The plaintiff is liable for a percentage of the harm based on
their percentage of negligence.
iii. Jurisdictional Types of Comparative Negligence.
1) Pure: A plaintiff may recover damages as long as the
defendant was negligent at all. (Even if the plaintiff is
99% responsible)
2) Modified “Not Greater Than”: A plaintiff may recover
as long as their own negligence is no more than 50%
responsible for the harm.
3) Modified “Not As Great As”: A plaintiff may recover
only if their own negligence is 49% or less responsible
for the harm.
4) Slight: SD only, the plaintiff’s negligence must be
slight when compared to the negligence of the
defendant.
4. Assumption of Risk
i. Express Assumption: is when a person freely signs away their
rights to pursue causes of action. (Seigneur v. National Fitness
Institute, Inc.)
1) The conduct protected must fall within the scope of the
agreement.
2) The agreement unacceptable in nature because
a. It protects against claims arising from
intentional harm or acts of reckless, wanton, or
gross negligence
b. Unfair bargaining power existed when created
(e.g. hospitals, schools, daycares, etc.)
c. It involves public interest (e.g. airline, hotel)
ii. Implied Assumption: is when a person knows of a risk and
willfully engages in dangerous conduct regardless of the risk.
(Rush v. Commercial Realty Co.)
1) Subjective Inquiry: know about the risk and appreciate
the risk
2) Voluntarily encounter the risk, the plaintiff exercising a
free choice, not one of duress. Have they agreed
through their conduct to assume the risk?
3) When a defendant deprives you of the choice then the
defense is not available.
5. Statute of Limitations
i. Limits the time in which a claim may be brought
ii. Purposes
1) Prevent stale claims – memories fade, evidence
deteriorates
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2) Promote stability – All of us, even wrongdoers, are
entitled to moving on
iii. Timing
1) Generally, timing begins at the moment of injury
2) Discovery Doctrine: the cause of action will accrue at
the moment a person exercising reasonable care
discovered or should have discovered the injury.
3) Tolling: stops the statute of limitations clock for a
period of time for a reason (minor until age of majority)
4) Statute of Repose: limits the time during which a cause
of action can arise
________________________________________________
MIDTERM
______________________________________________
VIII) PART VII – INTENTIONAL INTERFERENCE WITH PERSON OR
PROPERTY
1. Intent: satisfied by either subjective mental states of the actor of purpose or
knowledge of a substantial certainty. (Garret)
A. Courts are less sympathetic to cut off liability for intentional torts
(Spivey)
B. Doctrine of Transferred Intent: the intention to harm one person may
be transferred to another person who is actually harmed and the intent
to commit one tort may be transferred to another tort. (Talmage)
i. Transferrable Torts:
1) Assault
2) Battery
3) False imprisonment
4) Trespass to chattels
5) Trespass to land
ii. Mistake of identity is not a defense for transferred intent
2. Battery
A. Elements (Wallace)
i. Defendant acted with intent to cause a harmful or offensive
contact
ii. Defendant causes a harmful or offensive contact
1) Offensive and harmful is based on the objective
reasonable person
2) Contact with a person’s body or anything so intimately
connected with the body that we will consider it part of
the person. (Fisher)
B. Exceptions
i. Accidental Touch, as in a hallway (Cole)
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ii. Tapping on shoulder to get attention (Wallace)
iii. Everyday contacts such that no reasonable person would
consider them harmful
C. Damages
i. Damages are not an essential element of battery
ii. Nominal damages to vindicate a right
iii. Punitive damages may be available
3. Assault
A. Elements
i. Intent: Act with an intent to cause an apprehension of imminent
harmful or offensive contact.
ii. Apprehension: The act causes the apprehension of imminent
harmful or offensive contact.
1) Imminence is necessary
2) Actual ability to carry out contact not necessary
(Western Union)
3) Apparent ability, judged by a reasonable person
4) Failure to make the contact irrelevant
B. Exceptions
i. Mere words are not enough to create an assault
ii. Threats of later contacts are not assaults
iii. Later discoveries of a threats are not assaults
C. Damages
i. Damage is considered to be stand alone emotional harm but is
not necessary to prove
ii. Nominal damages to vindicate a right
iii. Punitive damages may be available
4. False Imprisonment
A. Elements
i. Intent: to confine or restrain someone to a bounded area
without justification or excuse.
1) Confinement made by force, threat of force or duress
2) Confinement must have boundaries
3) Confinement can be in an open space
ii. Cause: Successfully cause confinement of a person to a
bounded area.
1) There must not be any reasonable means of escape
2) The confinement is against the will of the plaintiff
iii. Aware: The plaintiff must be aware of (or in some jurisdictions
harmed by) the confinement.
B. Defenses
i. Mistaken identity is not a defense to false imprisonment
ii. Contributory negligence is not a defense to intentional torts
(Parvi)
iii. Consent is a complete defense to false imprisonment
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1) Moral Persuasion: if you are persuaded to stick around
then you acted voluntarily (Hardy)
iv. Threat of future confinement does not qualify
C. Damages
i. Dignitary Tort - interfering with the right to move about freely
is an infraction on the person’s dignity.
5. Intentional Infliction of Mental Distress
A. Elements
i. Intent: the defendant acts with intent to cause emotional harm
ii. Extreme: the defendant's conduct must be extreme and
outrageous
1) Objective/Reasonable Person Standard for conduct
iii. Damage: the plaintiff must suffer severe emotional distress.
1) Bystander Rule: recovery is limited to:
a. Close family members (parents, siblings,
children)
b. Who are in proximity, witness or arrive
immediately after the traumatic incident.
B. Damages
i. Nominal Damages are awarded
ii. Compensatory Damages may be awarded
iii. Punitive are available
6. Trespass to Land
A. Elements
i. Intent: defendant intends to enter onto someone's property or
remain after permission is exhausted
ii. Entrance: the defendant actually enters the land of another
1) Land extends into the airspace and beneath the surface
2) Causing an object to come onto the plaintiff's property
qualifies as trespass (Herrin)
B. Damages
i. No damages need to be proven (Dougherty)
ii. Interest Protected: interference with the exclusive use of a
person’s property
C. Defense
i. Motive or mistake are not defenses for trespass
7. Trespass to Chattels
A. Elements
i. Intent: the defendant intends to interfere with the personal
property of another
ii. Interference: the defendant actually interferes with the personal
property of another
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iii. Damages: plaintiff must prove damages to the owner or
chattels
1) Chattel is impaired in value
2) Possessor is deprived of the use of the property for a
substantial use of time.
3) Bodily harm is caused to the possessor or harm to any
thing that the possessor owns
4) Dispossess the owner of the chattel, which occurs when
the chattel is taken with the intent to maintain
possession.
8. Conversion: an intentional exercise of dominion or control over a chattel
which so seriously interferes with the right of another to control it that the
actor may justly be required to pay the other the value of the chattel.
A. Elements
i. Intent: defendant intends to exercise dominion or control over
the property
ii. Control: defendant in fact exercise dominion or control over
the property
iii. Severe Interference: the interference is so severe that the
defendant must compensate for the entire value of the property.
1) Factors for consideration here include
a. Good Faith
b. Extent and duration of the actor’s control
c. Extent and duration of the resulting interference
d. The actor’s intent to assert a right inconsistent
with the other’s right of control
e. Harm done to the chattel
f. Inconvenience and expense caused to the other
B. Necessity of Demand; Return of Chattel
i. Difference between Trespass to chattels and conversion is the
calculation of value because in TtC the damages are based
upon the harm received by the possessor whereas conversion is
a forced sale where the entire value of the property must be
compensated for
C. Damages
i. No requirement of actual damages for conversion
ii. Market value not replacement value
iii. Nominal, punitive, and emotional damages are all available
D. Privileges
i. Permission?
ii. Purchases from a seller of that type of item?
IX) PART VIII – PRIVILEGES
1. Generally: privileges may justify the tort and void liability and are the burden
of the defendant to prove.
2. Consent: willingness in fact for the act to incur, express or implied willingness
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A. Implied Consent: the defendant reasonably believed that the plaintiff
was willing or consented. What would a reasonable person infer?
(O’Brien)
i. There was not consent if the behavior falls outside the rules or
local custom which is normally consented to under the
circumstances. (Hackbart)
B. Consent obtained by fraud or deceit is not valid consent. (DeMay)
i. This could be qualified by negligent or intentional withholding
of information or misrepresentation.
C. Consent by Patients: doctors can commit a battery if they operate on a
patient without consent even if the operation were done with skill and
good motive.
i. Exception is allowed if:
1) The patient is unable to give consent (unconscious,
intoxicated, mentally ill, or incompetent)
2) There is a risk of serious bodily harm if treatment is
delayed
3) A reasonable person would consent to treatment under
the circumstances
4) The physician has no reason to believe this patient
would refuse treatment under the circumstances
3. Self-Defense
A. Generally: A person may use proportional force when they reasonably
believe that force is necessary to protect from imminent harm.
B. Elements
i. Necessity
ii. Proportionality
1) Mistakes are okay if the belief was reasonable
2) Retaliation is not privileged
3) Provocation: mere words are not enough
4) Retreat must made to the wall if it can be done without
endangering yourself
5) Exception: castle doctrine holds that a person has the
right to defend against an intruder in their home without
any
6) Deadly force: this may only be used when threatened
with deadly force or serious bodily injury
C. Defense of Others
i. Defense of others is justified when the person defended would
have been justified in defending themselves.
4. Defense of Property
A. Generally: reasonably proportionate force can be used in defense of
property
B. Deadly Force is never acceptable in defense of property
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C. Traps are not legitimate because they cannot distinguish between
victims (Katko)
5. Recovery of Property
A. Generally: A limited window is allowed for using force to recover
property that is wrongfully taken.
i. Fresh pursuit
ii. A demand must be made before recovery
iii. No room for mistakes in recovery of property
B. Shopkeepers Privilege: shopkeepers may defend against false
imprisonment if:
i. They have a reasonable belief that the person has stolen
ii. They detain person for a reasonable investigation period
X) PART IX – STRICT LIABILTY
1. Generally: liability without fault
2. Animals
A. Wild Animals: the owner or possessor of a wild animal is subject to
strict liability if the animal injured anyone.
i. Training is no defense
B. Domestic Animals (dogs & cats): domesticated animals may create
negligent liability UNLESS:
i. You know or should have known that your animal has vicious
propensities unusual to the class.
ii. Trespass is a defense to domestic animal strict liability.
3. Abnormally Dangerous Conditions
A. Generally: “the person who has brought on his land and kept there
something dangerous, and failed to keep it in, is responsible for all the
natural consequences of its escape.” (Rylands, Majority)
B. Common Law: a person is strictly liable for damages caused by an
abnormally dangerous artificial condition not commonly used in the
community. (Rylands, Blackburn)
i. Six factors for abnormally dangerous: (Miller)
1) Existence of a high degree of risk of some harm to the
person, land or chattels of others;
2) Likelihood that the harm will be great
3) Inability to eliminate the risk by the exercise of
reasonable care
4) Extent to which the activity is not a matter of common
usage
5) Inappropriateness of the activity to the place where it is
carried on
6) Extent to which its value to the community is
outweighed by its dangerous attributes
4. Limitations on Strict Liability
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i. The thing that makes a condition/act dangerous is what creates
strict liability and liability must result from that danger.
(Foster)
ii. Strict liability applies when the harm was caused by an
unforeseeable event (Golden)
iii. Assumption of the risk is a defense (Sandy)
iv. Contributory negligence is, generally, not a defense
XI) PART X – JOINT TORTFEASORS
1. Liability and Joinder of Defendants
A. Generally: each of several tortfeasors is liable jointly for the amount
against them or individually for the full amount.
i. Acting in concert: agreement between the two defendants may
be express or implied. The agreement may not be reached
beforehand. Mere knowledge of the activity is not enough to
implicate someone as acting in concert. Need some kind of
plan, design, or shared understanding that shows the person is
playing a part.
ii. Single Indivisible InjuryWhen two or more people, acting
independently, contribute to a single indivisible injury, then all
actors are fully liable. (Coney)
iii. Vicarious Liability: defendants fail to perform a common duty
to the plaintiff (including relationships of master/servant,
seller/manufacturer)
2. Apportionment of Damages
A. When it is possible to disaggregate the damages, then the jury must do
so and proportionate liability would apply. (Bruckman)
B. Tortfeasor is liable for all damages that they proximately
cause.(Michie)
3. Contribution and Indemnity
A. Contribution: holding a third party liable for a portion of the damages
for which the defendant has been found liable.
B. Indemnity: holding a third party liable for all damages which the
defendant has been found liable.
XII) PART XI – VICARIOUS LIABILITY
1. Respondeat Superior: the employer can be held vicariously liable for the torts
of its employees when
i. An employee creates harm during the course of the
employment. It is within the scope of employment (Bussard)
ii. Even if the employer was not negligent in any way
B. Going and Coming Rule: travel to and from work is not within the
scope of employment. Exception: an employee endangers others with a
risk arising from or related to work.
i. Detour: sufficiently related to the employment to fall within its
scope
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ii. Frolic: the pursuit of the employee’s personal business as a
substantial deviation from or an abandonment of the
employment.
C. The employer can be liable for intentional torts committed by the
employer if it is reasonably connected with the employment and thus
falls within the scope.
2. Independent Contractors: a master is not vicariously liable for the torts of an
independentcontractor
A. An independent contractor has independent right and control ove r the
means, time and method of their services. (Murrell)
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