DAN WILSON'S OUTLINES
My outlines are not intended to be definitive, comprehensive treatments of the various
subjects. They are offered to show the thought processes of a successful bar study
process. I ignore large swaths of material that are rarely or never tested. I focus on
core concepts that are consistently tested and areas years of experience have shown
are particularly challenging to students. The outlines are not intended as a substitute
for commercial outlines.
For example, commercial Property outlines explain in mind-numbing detail The Rule in
Shelly's Case, The Doctrine of Worthier Title, and The Destructibility of Contingent
Reminders. These rules are impossible for the modern mind to understand without
extensive study of the Common Law. AND THEY ARE NEVER TESTED. So my
Property outline addresses material which is always tested, such as present possessory
interests and future interests.
My outlines are not pretty. They have grown incrementally over the years. But if you
master the material you will be well on your way to passing the bar.
The outlines are offered free of charge. May they aid you in your endeavor!
TORTS OUTLINE
1
SUMMARY OUTLINE
1.
2.
3.
4.
5.
6.
7.
8.
9.
INTRODUCTION
NEGLIGENCE
INTENTIONAL TORTS
STRICT LIABILITY
PRODUCTS LIABILITY
NUISANCE
LANDOWNER LIABILITY
DEFAMATION
PRIVACY
1 Copyright 2007 Daniel Wilson. Permission is given to use in preparation for the Bar Exam.
This material is drawn from published MBE questions; Colorado bar exam essays; published
Multi-state Essay Exam Torts questions; Dan Dobbs' hornbook on Torts; and BarBri's multi-state
outline. Grateful acknowledgement is given to Professor David Barnes, my Torts professor at
DU; Professor Arthur Best, DU; and Professor Steve Pepper, DU. Revised 2009. Revised 2010.
Revised 2011. Revised 2012.
1
1.
2.
INTRODUCTION
A.
MBE. Always remember that the bar exam is different from
law school exams. It is very basic, without the fine distinctions that
form the basis of discussion in a law school class. It is also
different from the practice of law. There is a bias in favor of areas
that can actually be tested. One result is that intentional torts are
heavily tested. Most Torts professors spend little time on
intentional torts; mine spent one week at the end of a two semester
course. Defamation is heavily tested; my professor never
mentioned defamation. Statutes are not very important in Torts on
the bar exam; most Torts professors emphasize statutes. The MBE
is almost completely Common Law.
B.
MEE. We now have four released Torts questions from the
National Conference of Bar Examiners.2 All four are
straightforward. The issues tested
are: negligence;
contributory/comparative negligence, negligence per se, child
standard of care, proximate cause, actual cause, res ipsa,
alternative causation theories, strict products liability, joint
tortfeasors, vicarious liability, BPL, eggshell skull plaintiff, custom,
battery, and intent.
C.
STRATEGIC APPROACHES. I suggest two approaches to
Torts.
i.
First, there are only seven Torts actions that we need be
concerned with: negligence, intentional torts, strict liability, products
liability, defamation, nuisance, and privacy torts. Organize your
study so that you can instantly identify which tort is being tested
and the answer will jump out at you on a MBE question. You can
get a significant number of points on an essay merely by stating the
elements of the tort(s) being tested.
ii.
The second approach I call the spectrum of badness. On
one end of the spectrum is the lowest level of badness in the
defendant--intentional torts. On the other end of the spectrum is the
highest level of badness--intentional torts. Negligence is in
between. The mental state of the defendant is crucial. The
defendant cannot be held liable for an intentional tort unless he
acted with the intent to inflict harm. On the other end, if the
elements of a strict liability tort are present, the defendant's state of
mind is irrelevant. If we are considering negligence, the standard is
objective--we compare the defendant to a hypothetical reasonable
person.
NEGLIGENCE
A.
ELEMENTS THEREOF
2 Colorado switched from writing their own essays to the Multi-state Essay Exam in July 2009.
2
B.
i.
Duty. The defendant must have some sort of duty to the
plaintiff.
ii.
Breach. The defendant must have somehow failed to live up
to that duty.
iii.
Actual cause. Breach of a duty equals negligence. The
defendant's negligence must be the actual cause of the plaintiff's
injury.
iv.
Proximate cause. The nexus between the defendant's
negligence and the plaintiff's injury must be not too tenuous or
unforeseeable.
v.
Injury. The plaintiff must suffer an injury that the law of
negligence recognizes.
STANDARDS OF CARE
i.
The basic standard of care is called reasonable care. My
definition, from my Torts professor Jake Barnes: An actor has a
duty to take reasonable care to avoid creating an
unreasonable risk of foreseeable types of harm to foreseeable
others. The mental state of the actor is not very important. The
standard is objective--what would the hypothetical reasonable
person do, not what this actor would do. There are also several
special standards of care.
ii.
Physical handicap. The care that a reasonable person with
that physical handicap would take.
If the disability comes on the actor suddenly, i.e., a heart
attack or diabetic seizure, the actor will be liable for injuries
only if he could have reasonable foreseen the attack or
seizure.
iii.
There is no special standard of care for mental disability.
Vaughn v Menlove. Defendant's haystack caught fire and
fire spread to neighbor's house. Defendant's defense was
that he was too stupid to realize the danger of fire. Held:
Defendant held to a reasonable person standard and not to
his lesser capacity.
iv.
Split in authority whether an imbicile or moron should be
held to moron standard of care or reasonable person.
iii.
Traditional rule is no special standard of care for insane
persons. Modern trend is to relieve him of liability if his
insanity prevents him from understanding or avoiding the
danger.
iv.
There is no special standard of care for an intoxicated
person. Getting intoxicated is itself negligence.
v.
Child. Both objective and subjective. The care that a
reasonable child of this child's age, intelligence and maturity
would take.
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1. Definition of child is not same as minor. Rarely applied to
minor over 16 or child under 4.
2. If child is engaged in adult activity adult standard of care
applied. DW's Law: Adult activity means internal combustion
motors.
vi.
Professional standard of care. The care that a reasonable
person in this profession in good standing would take.
1. Usually doctors. Three approaches.
a. A reasonable doctor in this community.
b. A reasonable doctor in a similar community.
c. A reasonable doctor measured by one national
standard.
2. Majority rule is similar community, with a national standard
for specialists.
3. A professional is characterized by graduate degrees, the
profession is self-regulated, and there is some sort of duty to
the community that transcends purely financial concerns.
4. Doctor is required to disclose risks of treatment and obtain
informed consent.
vii.
Statute. Negligence per se.
1. Safety statute.
2. Plaintiff is in the class of persons to be protected.
3. Injury is the sort which the statute is meant to prevent.
4. Violation of the statute is not excused by extrinsic factors.
5. When the reasonable person standard of care is applied, the
jury determines what is reasonable care and whether the
defendant met that duty. In negligence per se the legislative
body determines what is reasonable care and what is as
breach of that duty.
6. Martin v Herzog. Plaintiff drives a buggy on a highway after
dark without a lantern. This is in violation of a safety statute.
Negligently driven car strikes buggy. Driver's defense is
that the buggy driver violation of the statute is contributory
negligence per se.
7. Tedla v Ellman. Statute requires pedestrians walking along
the side of a highway must walk on the side facing traffic.
Traffic in that lane is much heavier then the other way.
Plaintiffs walk on the other side and are struck by negligently
driven car. Defendant argues that plaintiffs are contributorily
negligent. Held: Plaintiffs relieved from liability because in
the circumstances it was reasonable to walk on the wrong
side of the highway.
viii.
Emergency. What would a reasonable person do in a
similar emergency. Really just a variant of reasonable care.
4
ix.
C.
Common carriers/innkeepers. Have a heightened standard
of care. Probably includes a duty to assist.
x.
Custom. Custom can be evidence of reasonable care but
an activity or practice can be unreasonable even if everyone
does it.
WAYS OF SHOWING BREACH
i.
Failure to act reasonably.
ii.
Negligence per se.
iii.
BPL.
a. This is Learned Hand's so-called calculus of negligence. It
comes from a classic case Carroltown Towing. This test
compares the burden of preventing an injury to the loss if it
occurs, taking into account the probability that the loss will
occur.
b. Facts of the case. Barge tied to the wharf in a busy harbor.
November so short day. During war time so harbor crowded
with shipping. Bargee was supposed to stay on the barge to
make sure it did not break loose. He did not stay on the barge,
barge broke loose, ship collided with it sinking barge and
damaging ship. Issue: Was the bargee, and by vicaruous
liability his employer, negligent when he did not stay on the
barge. Analysis: The burden of keeping a man on the barge 24
hours a day is relatively small. The loss to be expected if the
barge breaks loose is very large. The probability that ship will
collide with barge if it does break loose are high because of the
short days and the ship traffic.
c. Another example. Baseball parks are constructed so that
struck balls and swung bats can fly into the stands and injure
spectators. The burden of preventing this is high because
fencing the stands so no ball or bat could fly into the crowd
would destroy much of the utility of going to the ball park to
watch a game.
d. Another example. Chicago B & Q Railway v. Krayenbuhl.
A child playing on an unlocked railroad turntable gets his leg
caught and severed at the ankle. The burden of preventing the
loss very small, a padlock. Loss is very high, severed limbs.
The probability of children playing on such an irresistible hazard
is very high. Negligent not to take the protective measure.
iv... Res Ipsa. The thing speaks for itself.
a. To state a cause of action in negligence the plaintiff must
allege facts, that if true, establish that the defendant owed a
duty to the plaintiff and that the defendant breached that duty. If
plaintiff cannot allege such facts because he does not know the
precise sequence of events his case is subject to a motion to
5
D.
dismiss for failure to state a claim. Res Ipsa allows the plaintiff
to survive this motion and get to the jury.
b. The plaintiff must lack knowledge of how the injury occurred.
c. The injury must be of a type that is unlikely to occur in the
absence of negligence.
d. The instrumentality of the injury must have been in the
exclusive control of the defendant.
e. The plaintiff must not have contributed to the injury.
f. Cases
a. Byrne v. Boodle. Plaintiff is walking down the street
when a barrel of flour falls out of the sky and injures
plaintiff. P is unable to allege the facts as to how the
barrel of flour got there. Held: plaintiff has stated a
cause of action.
b. Newing v Cheatham. When an airplane crashes
without negligence the jury may assume negligence.
c. Ybarra v Spangard. Plaintiff was a surgery patient.
He was injured while unconscious and thus cannot
allege what happened. Further, there were six other
people in the operating room and none of them is
talking. Held: Res Ipsa can be used to hold all six
jointly and severally liable.
SPECIAL DUTY RULES
i.
No duty to rescue.
a. Yania v Bigan. Defendant and his friend were goofing
around by a strip mine. Defendant induced his friend to jump in
a deep water filled trench. Plaintiff started to drown and
defendant did nothing to help him. Held: Defendant had no duty
to rescue, even though the other actor was his friend and
defendant induced him to jump.
b. Exception: Common carriers and innkeepers have a
heightened duty to use utmost care and diligence to protect their
patrons.
c. Trend is to extend this duty to businesses.
d. Employer has duty to warn employees of danger.
e. Universities have some sort of duty to protect students from
foreseeable harms, but probably not to protect them from harm
incurred because of student's foolishness in consorting with bad
types.
f. Exception: If the defendant is the one who put the actor in
danger.
g. Exception: Co-adventurers. Farwell v Keaton. Two young
men are cruising for chicks and annoy a couple of young
women. The women complain to their male friends who
seriously beat one of the young men. Later defendant gets the
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beaten one, puts ice on his head and drives him around for a
couple of hours before parking the car at friend's grandparents'
house. Beaten one dies and defendant is liable in negligence
for not helping him because they were coadventurers.
h. Exception: If defendant starts to rescue, he must do so nonnegligently. This generally means that if actor starts to rescue
he must carry through.
i. Exception: Relationship between defendant and third party.
Tarasoff v Regents of Univ of Cali. Psychiatrist for school
was aware that third party intended to kill the plaintiff, which he
later did. Doctor had duty to warn.
j. Good Samaritan statutes do not impose duty to rescue.
They give protection to a medical professional who aids the
victim of an accident or assault negligently.
k. Contractual: lifeguard.
ii.
Negligent Infliction of Mental Distress.
a. Traditional rule is no liability unless P is in zone of danger,
physical impact, or physical injury. Emotional distress damages
are recoverable as a parasitic element on physical injury. Thus
if there is a physical injury or impact, however slight, plaintiff can
also recover for emotional distress. Also if there are physical
symptoms plaintiff may recover.
b. Many states have abandoned the rule but for the bar exam
we stick with the old rule.
c. Molien v Kaiser Foundation Hospitals is a case where
court allowed recovery without physical impact or symptoms,
but the facts are extreme. Hospital negligently misdiagnosed
husband with syphilis and so informed his wife. Wife suspected
husband of having an affair and marriage failed. Court allowed
recovery.
d. At risk plaintiff, otherwise known as increased risk of harm in
the future, but no present physical symptoms. Peyton v Abbott
Laboratories. Plaintiffs were women whose mothers had taken
DES, which was known to cause cancer in daughters of women
who had used the drug. This is really a causation problem and
will be discussed there.
f. Exception: When the defendants negligently falsely inform
defendant of death of loved one, or negligently mishandle a
corpse no physical impact or physical symptom is necessary to
recover.
g. Zone of Danger I: If P's emotional distress is caused by
threat of physical contact P must have been in zone of danger.
h. Zone of Danger II: Emotional distress caused by seeing
other's peril or injury. Traditional rule is that plaintiff must have
been in zone of danger.
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E.
i. But Cali extends scope of duty. Dillon v Legg.
Mother and two daughters were crossing street.
Daughters were both in the crosswalk and mother still on
the curb when negligently driven car squashed one
daughter. If the zone of danger rule had been applied
unharmed daughter could recover for emotional distress
but not mother because she was not in the zone of
danger.
ii. Limited in Thing v La Chusa. Plaintiff not in zone of
danger must:
i. be closely related to injured person;
ii. plaintiff must have been present at the scene
and have been aware of the injury;
iii. plaintiff must have suffered severe emotional
distress.
i. Emotional distress as a parasitic element of another tort is
recoverable.
iii.
Unborn Children. Most interesting is wrongful life.
a. This arises from two situations. One, a negligently
performed vasectomy or tubal ligation. Healthy child is
born. Do parents have a cause of action for pain and
suffering of mother, cost of medical bills or cost of raising
child. Rule is that mother can recover for pain and
suffering and medicals but not cost of raising child.
b. Two, pre-natal testing performed negligently. Child is
born with serious physical deformity. Mother says she
would have had abortion if she knew. Mother can
recover for pain and suffering and medicals and cost of
lifetime care of child.
c. But the child never has cause of action for wrongful
life.
iv.
Pure Economic Loss.
a. Recovery for economic loss is parasitic on physical
injury or property damage.
b. Barber Lines A/S v M/V Donau Maru Ship spills fuel
oil in Boston Harbor. The spill damages an adjacent
wharf and the plaintiff's ship cannot dock. Plaintiff suffers
economic loss because it has to dock elsewhere. No
recovery.
BREACH
i.
Custom or usage
ii.
violation of statute
iii.
Res Ipsa
iv.
Failure to act reasonably
v.
BPL
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F.
G.
CAUSATION
i.
But for. But for the negligence of the D would the injury have
occurred?
ii.
Substantial factor. Where there are several causes of the
P's injury and any one of them would have been sufficient to cause
the injury the D's actions are a substantial factor and meets the
causation requirement. Kingston v. Chicago and N.W. Ry.
Negligently operated locomotive starts fire. Fire merges with
another fire of unknown origin. Either fire would have been
sufficient by itself to destroy P's property. Held: D's negligence was
a substantial factor in destroying P's property.
iii.
Two tortfeasors, one injury, cannot determine which
tortfeasor caused the injury. Both tortfeasors are jointly and
severally liable. Summers v Tice. Three hunters. Two negligently
fire in the direction of P. P suffers an injury but is only struck by
one shotgun pellet. Impossible to determine which negligently fired
pellet struck P. If but for test used both Ds would not be liable.
Court held both Ds jointly and severally liable.
iv.
Market share liability. DES. DES was a drug used to
prevent miscarriages. It turns out that daughters of women who
used the drug had a high incidence of cancer. Epidemiological
studies established the link between the drug and cancer. Because
of the passage of time it would be impossible to show that a
particular P's mother took a pill from a particular manufacturer.
Court said that P can serve all surviving firms and that each firm
would be liable in proportion to its share of the market for the drug.
No joint and several liability.
v.
Enterprise liability. Imposes joint and several liability on
theory that firms worked together to develop and market drug.
vi.
Increased risk, but no injury yet. P is exposed to a toxic
chemical that increases his risk of cancer, but no cancer yet.
Traditional rule is to not allow recovery unless P can show that it is
more likely than not he will get cancer. Modern rule is to allow a
proportional recovery based on percentage chance P will get
cancer. Petriello v. Kalman. Even if no recovery for increased
risk is allowed court will usually award costs of medical monitoring.
vii.
Emotional distress caused by knowing of increased risk of
cancer but no injury yet. Peyton v Abbott Laboratories. Another
DES case. No recovery.
viii.
But if P can show some physical change may be able to
recover for emotional distress.
PROXIMATE CAUSE
i.
Proximate cause is not the same as actual causation.
Proximate cause limits liability for policy reasons.
ii.
Foreseeability approach.
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iii.
iv.
v.
vi.
a. Palsgraf v. long island R.R. Co. Palsgraf was injured
when a large scale fell on her. Palsgraf was standing on a
railroad platform. D's servants negligently pushed passengers
onto a departing train. Passengers dropped packages which
exploded. Shock from explosion knocked scale over injuring
Palsgraf.
b. Analysis: The negligence of D's servants was an actual, but
for cause of Palsgraf's injury. Cardozo's majority opinion held
that the chain of events was unforeseeable and therefore D's
negligence was not a proximate cause of Palsgraf's injury.
"Negligence in the air, so to speak, will not do."
Directness approach. Andrew's dissent is called the
directness approach. Once D's negligence is established D
is liable for any injury that is a direct result, no matter how
unforeseeable.
Majority rule is foreseeability.
Eggshell skull P. Once P suffers a foreseeable injury D is
liable for any additional unforeseen physical consequences.
Example: D negligently trips P who falls down. Unforeseen
that P has an "eggshell skull" and dies from an otherwise
minor fall. Some physical injury is foreseeable. D liable for
full extent of injuries.
Intervening causes.
a. D's liability is limited if there is an unforeseeable intervening
cause. That means the original D's liability is cut off by the
intervening cause.
b. An intervening cause is superseding if it is unforeseeable.
c. Negligence is always foreseeable. P is injured in car crash.
Doctor operates negligently and P dies. Doctor's negligence is
foreseeable.
d. Criminal acts or intentional torts are not superseding causes
if they are foreseeable.
Watson v. Kentucky & Indiana Bridge and R.R. Co.
Negligently operated railroad spilled gasoline in streets of
town. Third party throws a lighted match in the gas and it
ignites, incinerating town. Held: If act was intentional it is
a superseding cause. If it was negligent it is not
superseding because negligence is always foreseeable.
e. Intervening cause is foreseeable if it is a normal
consequence of D's conduct.
f. Escape from danger.
g. Rescuers. D is liable to injured rescuer, even if rescuer was
negligent. D is liable for further injuries to rescued caused
by rescuer's negligence.
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H.
I.
h. If rescuer is grossly negligent that will be a superseding
cause.
i. Act of God not superseding if foreseeable.
JOINT AND SEVERAL LIABILITY
i.
Joint and several liability means the P can recover all of his
damages from one of several Ds.
ii.
Joint tortfeasors who act in concert are jointly and several
liable. This applies mostly to intentional torts.
iii.
But if two negligent tortfeasors cause injury or injuries and it
is not possible to apportion the injuries both Ds will be jointly and
severally liable.
iv.
Summers v. Tice.
v.
Ybarra
CONTRIBUTORY AND COMPARATIVE NEGLIGENCE
i.
Contributory negligence
a. Traditional C/L rule is that if P contributed to the smallest
degree he is barred from recovery.
b. Butterfield v. Forrester. P was riding his horse rapidly at
twilight and ran into a pole that had been negligently placed in
the road. P barred from recovery.
c. Contrib is an affirmative defense that must be pleaded by D.
D has burden of proof.
d. P is held to the reasonable person standard of care.
e. Child P is held to the child standard of care.
f. Defense can only be raised as to negligent conduct by the D
g. Does not apply to intentional torts, strict liability torts.
h. Last clear chance. If D had last clear chance to avoid the
harm he may not raise the defense.
i. Four states retain contributory negligence.
ii.
Comparative negligence.
a. Rather than barring P's recovery, his recovery is reduced by
the proportion of his negligence.
b. Judge made rule. Originally even if a P's negligence was the
overwhelming factor in causing the injury the P could still
recover. This is called pure comparative negligence. Thirteen
states use pure comparative negligence.
c. Modified comparative negligence.
i. 49/51 rule. The P is barred from recovery if his
negligence is not less than that of the D.
ii. 50/50 rule. The P is barred from recovery if his
negligence is more than that of the D.
iii. Percentage is determined by how far P deviated from
the applicable standard of care, not how much of a
causal factor P's negligence was.
iv. Last clear chance majority rule not applicable.
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J.
K.
v. Avoidable consequences distinguished. P has a duty
after the fact to take reasonable measures to mitigate the
damages. This is not contributory negligence.
ASSUMPTION OF RISK
1. If P knew of the risk and voluntarily proceeded nonetheless,
A of R is a complete defense.
2. Express assumption of risk. Will be enforced unless against
public policy. Generally we do not allow assumption of risk of
intentional harm.
3. Fine print. If P did not have a reasonable opportunity to
become aware of the A of R will not be enforced.
4. Adhesion contracts. If the A of R involves a necessary
service or product and P has no reasonable opportunity not to
assume risk will not be enforced.
VICARIOUS LIABILITY
1.
Vicarious liability is where a person who has no fault is
nonetheless held liable.
2.
Most important aspect is when an employer is liable for the
torts of his employee.
a. Called respondeat superior.
b. Applies to all torts committed in the scope of employment.
c. An employee is one who works subject to the control of the
master.
Factors: Does employee pay own insurance, own tools,
transportation self-directed, has ability to refuse specific
jobs, operate under own name.
d. Employee has to be acting within scope of employment.
That means he is acting to advance employer's business, even
if he is acting against orders.
e. Frolic and detour. If employee deviates from duties he is on
a frolic and detour. Traditional approach is to regard employee
on frolic and detour on first leg of the detour, but back under
employer's control when he is returning to his duties.
f. Distinguish from negligent hiring and supervision.
g. Independent contractors. Employer not vicariously liable for
torts committed by independent contractor. Essential element is
control, see above.
i. But some duties are non-delegable. Thus employer is
vicariously liable for strict liability torts of employee who is
an independent contractor.
ii. Non-delegable duties difficult to define; includes
blasting. duty of a landowner to keep premises safe for
business visitors, ultra-hazardous activities.
3.
parents are not vicariously liable for torts of their children,
but may be directly liable for negligent supervision.
12
L.
3.
WRONGFUL DEATH AND SURVIVOR STATUTES.
1.
In C/L tort actions died with the death of either the P or the
D. This has been changed by statute, hence they are called
survival actions.
2.
Deceased P has an action for pain and suffering and
medicals incurred before death. Cause of action belongs to the
personal representative of the deceased.
3.
Family of dead guy has cause of action for loss of financial
support and loss of consortium.
4.
Financial support is measured by how much money dead
guy would have made minus money he would have spent on
himself.
5.
Obviously if dead guy is elderly or a child he would not have
contributed much. Most states allow such an action nonetheless.
Recovery will be small.
6.
Loss of consortium is companionship, sexual relations and
moral support.
INTENTIONAL TORTS
A.
INTRODUCTION
For all intentional torts the P must show an act by D, done with
the requisite intent, which act causes the injury.
a.
The act must be volitional.
b.
Intent can be specific if the actor has the goal of
causing the injury. If the actor knows with
substantial certainty that the injury will result the
intent element is met.
c.
Garratt V. Dailey. D is five years old and
pulls a chair out from under his elderly aunt as she
sat down. D is liable if he knew with substantial
certainty that his aunt would hit the ground, even if
he did not intend that she do so.
d.
Intentional torts are heavily tested but if you
know the elements thoroughly the questions are
easy. Intentional torts differ from negligence in two
important ways. First, the actor's mental state. He
must be acting with the intent to cause the particular
harm (There is one exception. The mental state of
recklessness suffices for intentional infliction of
emotional distress.) Second, in contrast to the
squishiness of negligence, the intentional torts have
13
B
very specific elements.
intentional torts against the person
a.
battery
1
A volitional act done with the intent to cause a
harmful or offensive contact with the person of
another which causes the harmful or offensive
contact, without consent.
2
Actor liable for unforeseeable injuries
3.
nominal damages, emotional distress
4.
transferred intent. two varieties.
a.
Transferred from tort to tort. Example:
Intent for assault and harmful or offensive
contact results. Example: Actor intends to
cause harmful or offensive contact, contact
does not take place, and D is placed in
imminent apprehension of harmful or offensive
contact.
b.
Transferred between persons. Actor
intends to batter A and instead batters B.
c.
intent can be transferred between:
i.
assault
ii.
battery
iii.
false imprisonment
iv.
trespass to land
v.
trespass to chattels
5. Minors and incompetents can have the
requisite intent.
6. Offensive contact is judged by a reasonable
person of ordinary sensibilities.
7. Contact with objects closely connected to P's
person suffices, such as hats, clothing, car.
8.
If D sets in motion forces that result in contact
will be liable.
9.
P need not be aware of the contact.
10. Need not show injury or pain. The interest
protected is the right of bodily autonomy.
b.
assault
1
A volitional act done with the intent to cause
an imminent apprehension of a harmful or offensive
14
c.
d.
e.
contact which causes an imminent apprehension of
a harmful or offensive contact with apparent ability
to do so.
2
words alone are generally not sufficient for
assault. However, words in the appropriate context
can suffice.
3
future threats do not suffice.
4.
Apprehension must be reasonable.
5.
P must be aware.
IIED
1.
A volitional act which is extreme and
outrageous conduct done with the intent or
recklessly to cause severe emotional distress.
2.
Transferred intent only if the third person
witnesses the conduct, is a close family member of
the recipient of the behavior and the Defendant
knows of the presence and the close relationship.
3.
Extreme and outrageous conduct is conduct
that transcends all bounds of human decency.
i.
Extreme business conduct such as
abusive collection efforts is outrageous
conduct.
ii.
Misuse of authority.
iii.
offensive or insulting language does not
suffice.
iv.
Common carriers and innkeepers liable
for conduct that is less than outrageous.
4.
P must show actual damages, e.g. severe
emotional distress.
false imprisonment
1.
A volitional act done with the intent to confine
P to a bounded area which causes P to be confined
to a bounded area..
2.
Plaintiff must be aware or suffer a harm.
3.
Must be imprisoned within a confined space.
4.
No cause of action if reasonable means of
escape.
5.
confinement by threats is sufficient
defenses
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C.
1.
consent. Examples: Implied consent to
battery in contact sport. Riding the subway.
i.
Generally no consent to criminal act that
is a breach of the peace, i.e. barroom brawl.
ii.
But exceeding the bounds of consent
negates defense.
iii.
Implied consent to medical treatment in
an emergency.
2.
self-defense.
i.
Actor has right to use reasonable force
to defend himself. If actor is reasonably
mistaken fulll defense. But the P cannot
retaliate if attack has ceased.
ii.
No duty to retreat.
iii.
Original aggressor has no right to self
defense unless he used less than deadly force
and victim responds with deadly force.
3.
defense of others
1.
Actor may use level of force that other
would be able to use.
4.
defense of property
i.
Actor may use reasonable force to
prevent commission of tort against the
property.
ii.
A request to desist is usually required.
iii.
If actor has been permanently
dispossessed of the property cannot use
force, unless actor is in hot pursuit.
iv.
Cannot use deadly force unless invasion
of property also presents threat to safety of
actor.
v.
Cannot use trap, spring gun or viscous
dog.
5.
arrest
6.
unreasonable/reasonable mistake
7.
implied consent in a medical emergency
8.
shoplifter privilege
9.
Necessity to avoid a greater harm.
Intentional torts against property
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a.
4.
trespass to land
1.
intentionally entering a piece of land without
permission that turns out to be belong to the Plaintiff
2.
wrongfully remaining, failure to remove
3.
nominal damages
4.
possessor has cause. That means tenant if
rental. If land is vacant owner has constructive
possession.
5.
Causing some object to enter land, e.g.
flooding, chase a third person onto the land.
6.
Protects subsurface rights and air space.
7.
D is liable for actual and nominal damages.
b.
trespass to chattels
1.
intentionally interfering with use and
possession of chattel
2.
damages is rental value
c.
conversion
1.
interference with use and possession of
chattel to such an extent that it is appropriate to
award Plaintiff replacement value.
2.
Trespass to chattels becomes conversion due
to factors such as: bad intent, damage to chattel,
time owner is deprived of use, alteration of chattel
STRICT LIABILITY
A.
There are five categories of strict liability. Strict
liability means that the P need not show any fault on the
part of the D.
a.
Wild dangerous animals. Owner of wild
dangerous animal is strictly liable for personal injury
that results from a dangerous propensity of the
animal.
i.
Wild animals are distinguished from
domestic animals. Domestic animals are
those which by custom are devoted to the
service of mankind.
ii.
Zoos are liable only if they are negligent.
b.
Dangerous domestic animals. Owner is
strictly liable for personal injury only if he knew of
the dangerous propensity of the animal. So not
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"every dog is entitled to one free bite."
c.
Damage to real property caused by herdable
animals. This means if your cows escape and eat
your neighbor's crops owner is strictly liable.
Otherwise standard is negligence. Does not include
household animals such as cats and dogs.
i.
Western states have a fencing in rule.
Owner is not strictly liable if he attempted to
fence cattle. Some states have a fencing out
rule which means he has a strict liability claim
if he attempted to fence animals out.
d.
Rylands v. Fletcher.
i.
I disagree with the outlines here.
ii.
Case: Landowner built an artificial lake
to impound water to run a grist mill. Unknown
to landowner his land haw honeycombed with
ancient mine shafts. Water broke through and
flooded mine of adjacent landowner.
iii.
Court noted that landowner took every
possible precaution in the design and
construction of the dam.
iv.
Rule: Landowner is strictly liable for an
artificial condition on the land that is not
dangerous unless it escapes.
e.
Ultrahazardous activities.
i.
Nuclear reactors.
ii.
Blowing things up.
iii.
Storing things which blow up.
iv.
Crop dusting.
v.
Commercial fumigation.
vi.
Damage on the ground from a plane
crash.
vii. In my opinion storage and transportation
of toxic chemicals and gasoline does not give
rise to strict liability. Very influential decision
by Judge Posner Indiana Harbor Belt Co. v.
American Cyanamid.
B.
Defenses
1. Scope of risk. Only the type of injury which makes
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the activity dangerous.
2. Abnormally sensitive P. Foster v. Preston Mill.
Baby minks.
3. Assumption of Risk.
4. Contrib not a defense.
5.
PRODUCTS LIABILITY
There are three theories of recovery for a defective product.
a.
Negligence. Just like regular negligence, except P need
not be in privity with D.
b.
Warranty. Not really a tort theory at all. If the product
does not conform to the warranty seller is liable.
c.
So-called strict products liability.
i. Restatement of Torts 2nd sec 402A.
1. Seller of a product
2. Who is in the business of selling the product
3. Product is in a "defective condition unreasonably
dangerous"
4. reaches the consumer in an unchanged codnition
5. and defect causes an injury to buyer, consumer or
bystander.
6. Is strictly liable for injuries to the user, consumer,
bystander.
ii. Defective condition unreasonably dangerous is a term of
art.
iii. Two tests
1. Consumer expectation. If a reasonable consumer,
knowing the characteristics of the product, would
use it, the product is not defective.
2. Risk/utility test. If the risk of the product's design
outweighs its utility, the product is defective.
iv. Types of defects
1. Manufacturing defect. Product does not conform to
design.
2. Design defect. The product conforms to its design,
but the design itself is defective.
3. Warning labeling defect.
a. Unavoidably dangerous product with high
social utility.
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b. Product that is dangerous unless an adequate
warning is given.
v. Miscellaneous
1. Some products are unavoidably unsafe. Best
example is vaccines. Vaccines will cause the
disease in some number of people who are
inoculated, but the overall utility is so great that the
product is not defective.
2. State of the art. If manufacturer, at time of sale, did
not know of a safer design, or could not by a
reasonable effort discover a safer design, the
design is not defective.
3. Key in design defect cases is whether there is a
safer design that would not reduce utility of product
too much.
4. Defenses.
a. Contrib not a defense
b. foreseeable misuse not a defense
c. A of R is a defense.
5. Drug cases. Many drugs have a high social utility
but are unavoidably dangerous. If the manufacturer
warns the doctor product is not defective. The
doctor is a learned intermediary.
6. Intangible economic harm cannot be recovered.
6.
NUISANCE
1.
Private nuisance is the unreasonable and substantial
interference with use and enjoyment of the land. Remedy is
injunctive relief.
2.
Public nuisance is an interference with a right common to
the general public. A P must show he has sustained damage
different in kind from that suffered by the public generally.
7.
LANDOWNER LIABILITY.
a.
Duty to persons on the land is reasonable care except
towards unknown trespassers. For the most part the C/L
distinctions of trespasser, invitee and licensee are dead. Duty
to unknown trespasser is to avoid wanton and willful conduct
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8.
9.
that puts the trespasser at risk.
b.
Duty to business invitee is to inspect, warn and take
reasonable measures to make safe.
c.
Duty is owned by possessor.
d.
Attractive nuisance is dead. Occupier owes a duty of
reasonable care to foreseeable children on the land.
e.
Duty of possessor to persons outside the land is
reasonable care.
DEFAMATION
a.
Written defamation is libel. Spoken defamation is
slander.
b.
Elements:
i.
Defamatory language
ii.
Must reasonable identify the P
iii.
Publication
iv.
damage to the P's reputation
c.
Defamation is a false injury damaging statement that is
published.
d.
I think the level of badness is negligence in knowledge of
falseness and in publication. I think at C/L defamation was
strict liability.
e.
Difference between libel and slander. Damages are
assumed if defamation is libel and P need not show actual
pecuniary harm. If its slander P must show pecuniary harm
unless it is slander per se.
f.
Slander per se is crime of moral turpitude, loathsome
disease, unfit to engage in his trade or profession, unchaste
woman.
f.
Truth is a defense.
g.
Absolute privilege for judicial proceedings, legislative
proceedings
h.
Constitutional defamation
PRIVACY
a.
Rarely tested
b.
false light. Publishing false statements that would be
highly offensive to a reasonable person and attribute to P views
he does not hold or action she did not take.
c.
commercial appropriation. Use of P's name for
commercial gain without permission.
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d.
intrusion on solitude. D invades P's private space in a
manner which would be highly offensive to a reasonable
person.
e.
Publicity of private life. Public disclosure of non-public
detail of P's private life where the effect would be highly
offensive to a reasonable person.
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