TORTS
Professor McNichols, Fall 1998
I.
Development of Liability Based Upon Fault:
A. Tort: A civil wrong, other than a breach of contract, for which the law
provides a remedy.
B. Purposes of tort law:
1. To provide a peaceful means for adjudicating the rights of parties who
might otherwise take the law into their own hands;
2. To deter wrongful conduct;
3. To encourage socially responsible behavior; and
4. To restore injured parties to their original condition, insofar as the law can
do this, by compensating them for their injury.
C. Common law forms of action:
1. Writ of trespass-Direct and forcible injuries (whether or not they are
intended)
2. Writ of trespass on the case-tangible injuries to person or property
(intended but not forcible or direct)
D. Bases of Liability
1. Intentional Tort
2. Negligence
3. Strict Liability
E. Cases
1. Anonymous: A person is liable for injury directly caused by his actions. A
person acts at risk. You do it, you pay.
2. Weaver v. Ward: Accident is not an excuse (defense) to an action for
trespass to the person. Trespass is only excused if the harm is inflicted
utterly without the defendant’s fault (harm is inevitable and committed
without negligence by the defendant).
3. Brown v. Kendall: In an action for damages for an unintentional and
inadvertent injury to the person, the plaintiff has the burden of proving
either that the intent was unlawful or that the defendant was at fault
because he failed to use ordinary care.
4. Cohen v. Petty: Loss of control of an automobile because of a sudden and
unforeseeable illness is not negligence.
5. Spano v. Perini: One who engages in a highly dangerous activity, like
blasting, in an area where it is likely to harm neighboring property should
be liable for resulting property damage. This is true even if the greatest
care is used, and whether or not there is negligence or an accompanying
physical trespass.
II.
Intentional Interference with Person or Property:
A. Intent: A person intends a harmful or offensive contact if the person acts:
1. for the purpose of causing such contact, or
2. knows that such contact is substantially certain to be produced. Rest.2d §
13.
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B. Prima Facie Case for Intentional Tort:
1. Act
2. Intent
3. Cause
4. Injury
C. Transferred Intent Doctrine: Defendant intends to commit a tort against one
person, but instead:
1. Commits a different tort against that person
2. Commits the same tort against a different person, or
3. Commits a different tort against a different person.
4. Torts that apply:
a. Assault (interchangeable with Battery)
b. Battery (interchangeable with Assault)
c. False Imprisonment
d. Trespass to land or chattel
e. (These are torts which evolved from trespass writ)
f. Not intentional infliction of emotional distress or negligence.
D. Mistake: Neither good faith nor reasonable and good faith mistake excuses an
intentional interference with a legally protected interest (e.g. security of
person or property). Except:
1. Legal privilege to make reasonable mistake (self defense)
2. Mistake induced by plaintiff’s conduct (dress dog up in wolf’s clothing)
E. Cases:
1. Garratt v. Dailey: Intent exists when a person knows with substantial
certainty that a consequence will occur even if he or she does not desire it
to occur.
2. Spivey v. Battaglia: Liability for intentional torts does not necessarily rest
on a hostile intent or a desire to do harm. It is sufficient if a reasonable
person would believe that a particular result was substantially certain to
follow. Knowledge and appreciation of a risk short of substantial
certainty, however, is not equivalent to intent. The difference between
negligence and intent is drawn where the known danger ceases to be a
foreseeable risk which a reasonable person would avoid, and becomes a
substantial certainty.
3. Ranson v. Kitner: Good faith mistake may be a defense when the
defendant acted out of a mistaken but reasonable belief that he was being
attacked when he injured the plaintiff (or plaintiff’s dog) in self-defense.
Example of mistake induced by plaintiff’s conduct.
4. McGuire v. Almy: Where an insane person, by his own action, does
intentional damage to person or property, such person is liable to the same
degree that a sane person would be. An insane person is liable for torts if
he is capable of entertaining intent.
5. Talmage v. Smith: If defendant acts intending to cause one of the 5
intentional torts to X (that transferred intent applies to), he will be liable if
any of the five harms occurs to X or even to P.
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III.
Battery: The intentional, unprivileged harmful or offensive contact by the
defendant with the person of another.
A. Prima Facie Case for Battery:
1. Act
2. Intent to cause harmful or offensive contact or an imminent apprehension
of contact with plaintiff or a third person.
3. Cause
4. Injury (harmful or offensive contact)
B. Four Views of Intent for Battery:
1. Intent to touch (Majority view, Prosser, McNichols, Lambertson)
2. Intent to cause harmful or offensive conduct (Restatement of Torts)
3. Intent to harm, violent conduct (D’Angelo, minority view)
4. Intent to act (Keel v. Hainline)
C. Cases:
1. Cole v. Turner: The least touching of another in anger is a battery.
2. Ellis v. D’Angelo: The court held that a minor child is liable for battery if
they intended violent contact. In this case, the court found Sal to be too
young to be negligent.
3. Vosburg v. Putney: Defendant is liable for assault and battery even if he
did not intend to do harm, if he did intend an unlawful act. In this case,
the defendant’s kicking of the plaintiff was an unlawful act; thus, the
intention to kick him was also unlawful.
4. Keel v. Hainline: The willful and deliberate throwing of wooden
blackboard erasers at other people in a classroom is wrongful. Thus, the
intent to do the act was unlawful.
5. Fisher v. Carrousel Motor Hotel, Inc.: The plaintiff’s actual body need not
be disturbed. Unpermitted and intentional contacts with anything
connected with the body as universally regarded as part of the person, is
sufficient to constitute a battery. Thus, the forceful dispossession of
Fisher’s plate in an offensive manner was sufficient to constitute a battery.
6. Lambertson v. United States: Intent need only be intent to make the
contact, not intent to cause the injury.
IV.
Assult: An act, other than the mere speaking of words, that is a direct, legal
cause of placing the plaintiff in fear or apprehension of immediate harmful
or offensive contact without consent or privilege.
A. Prima Facie Case for Assult-Rest.2d § 21:
1. Act
2. Intent to cause harmful or offensive contact or imminent apprehension of
such contact with plaintiff or a third person.
3. Cause
4. Injury-imminent apprehension of contact with person.
B. Reasonableness-Objective standard
1. It is not enough to be afraid, you must be apprehensive of contact.
2. The threat must be imminent (as in seconds, not minutes or hours)
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3. Words alone are not enough unless in the context they are used they lead
the reasonable person to apprehend imminent contact…
4. Defendant’s apparent ability to act is sufficient
5. Knowledge of act is required (If you are asleep and someone touches you,
it may be a battery not an assault).
C. Cases:
1. I de s et ux. v. W de s: There need not be actual damage to support a
recovery for assault. Apprehension of a harmful or offensive contact is
sufficient.
2. Western Union Telegraph Co. v. Hill: An offer to touch in a rude and
angry manner, so as to cause a well-founded fear of a disagreeable bodily
contact, is an assault. Defendant’s apparent present ability to complete the
threatened act is sufficient.
V.
False Imprisonment: Intentional confinement within boundaries fixed by the
defendant. It is the direct restraint by one person of the physical liberty of
another without adequate legal justification.
A. Prima Facie Case for False Imprisonment:
1. Act
2. Intent to confine or restrain
3. Bounded area fixed by the defendant
4. Either plaintiff has knowledge of confinement or is harmed by the
confinement.
B. Sufficient Methods of Confinement:
1. Physical barriers
2. Physical force directed at the plaintiff, immediate family or property
3. Direct/Indirect threats of force against person, family or property.
4. Failure to provide a reasonable means of escape.
5. Invalid use of legal authority (false arrest)
6. Shoplifting detentions are privileged
a. Reasonable belief
b. Reasonable manner
C. Insufficient Methods of Confinement:
1. Moral pressure
2. Future threats
D. Issues:
1. No need to resist
2. Time of confinement is immaterial
3. Awareness of imprisonment is usually required unless the plaintiff is
injured.
4. Reasonable means of escape do not include any exits not known to
plaintiff or an exit which requires plaintiff to take risks to escape, is
dangerous or is simply uncomfortable. (Ex. crawling through a sewer in a
white suit)
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E. Cases:
1. Big Town Nursing Home Inc. v. Newman: A person, who directly
restrains the physical liberty of another without adequate legal
justification, may be liable for false imprisonment.
2. Parvi v. City of Kingston: Just because the plaintiff cannot recollect the
false imprisonment does not mean that it did not occur. Likewise, just
because the plaintiff was under the effects of alcohol during the false
imprisonment does not indicate that he was not conscious of the event.
3. Hardy v. LaBelle’s Distributing Co.: It is not false imprisonment to
willingly lead a person to a location under false pretenses when she
testifies that she would have gone anyway if she had known the true
purpose.
4. Enright v. Groves: An officer can be held liable for false arrest when he
arrests a plaintiff for an improper reason but charges the plaintiff for an
offense of which the plaintiff is later convicted. (arrested for refusing to
comply with an officer and charged with failure to keep a dog on a leash)
5. Wittaker v. Sandford: Refusal to allow the plaintiff to use a rowboat, the
only means of conveyance between the ship and the shore, constitutes
false imprisonment. (This is an example of an omission-failure to provide
the boat-resulting in false imprisonment)
VI.
Intentional Infliction of Emotional Distress: Mental Distress is characterized
by physical injury or severe mental suffering of the plaintiff resulting from
emotional disturbance, without physical impact, caused by highly aggravated
words or acts of the defendant, with intent to cause mental suffering or with
knowledge or belief that such is substantially certain to result from such
words or acts, and without consent or privilege.
A. Prima Facie Case for Intentional Infliction of Emotional Distress:
1. Act-Extreme or OUTRAGEOUS conduct
2. Intent or recklessness
3. Causation
4. Injury-Severe emotional distress
B. Rest.2d § 46: One who by extreme or outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to liability for
such emotional distress, and if bodily harm results from it, for such bodily
harm.
C. Bystanders: When there is physical harm to one person by defendant and the
plaintiff, another person, suffers emotional distress, plaintiff must show:
1. That the plaintiff was present when the injury occurred to the other person,
2. That the plaintiff was a close relative of the injured person,
3. That the defendant knew that the plaintiff was present and a close relative
of the injured person and
4. In Oklahoma, plaintiff must have been in the zone of danger.
D. Protects the plaintiff’s peace of mind
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E. Offensive or insulting language is not usually enough. However, common
carriers and innkeepers have a special obligation to the public and cannot
insult customers.
F. A practical joke may be sufficient. Ex. Defendant calls plaintiff on the
telephone and tells her that her husband is dead and she suffers a heart attack
from the shock.
G. Persistent and intolerable conduct not generally acceptable to normal
standards of decency is sufficient. Such conduct requires no physical damage
to plaintiff.
H. Known vulnerability may supply outrage, notwithstanding an absence of
intent, if there is wanton and willful infliction of mental distress in disregard
of a high degree of probability of the consequences.
I. The mere solicitation of a woman to illicit intercourse is not only not an assult
but does give rise to any other cause of action. “There’s no harm in asking.”
J. There is special liability for the intentional mutilation or disinterment of a
dead body…
K. Cases:
1. State Rubbish Collectors Ass’n v. Siliznoff: This case went by the 2d.
Restatement of Torts, § 46, which says that one who, without privilege to
do so, intentionally causes severe emotional distress to another is liable for
such emotional distress and from bodily harm resulting from it.
2. Slocum v. Food Fair Stores of Florida: Regardless of the heart attack
allegedly suffered as a result of the plaintiff’s emotional state, the law
employs an objective rather than a subjective test, so that the unwarranted
intrusion must be calculated to cause severe emotional distress to a person
of ordinary sensibilities, in the absence of special knowledge or notice that
the one distressed is of less than normal sensibilities. Trivial abrasive or
abusive comments will not be actionable.
3. Harris v. Jones: Plaintiff failed to establish that his mental distress was
severe enough to recover under the tort intentional infliction of emotional
distress.
4. Taylor v. Vallelunga: To recover for his own emotional distress, a plaintiff
must show that he defendant could reasonably foresee the plaintiff’s
presence.
VII.
Trespass to Land
A. Prima Facie Case for Trespass to Land:
1. Act of physical invasion of land
2. Intent
3. Causation
B. Protects plaintiff’s right to exclusive possession of the land.
C. If defendant intends to be on plaintiff’s land, whether his presence is based
upon mistake, ignorance as to the ownership, boundary, etc., of the land, claim
of right or some other matter, he is liable for trespass. There need not be any
actual damage or harm to the land.
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D. Trespass is different from nuisance in that nuisance is the invasion of a
possessor’s interest in the use and enjoyment of his land. In an action for
nuisance, courts usually require some actual damage, do not require a physical
invasion of land and take into account the social utility of defendant’s activity.
Cases:
1. Dougherty v. Stepp: An unauthorized entry onto the land of another is a
trespass notwithstanding the defendant had no subjective intent to violate
the plaintiff’s rights. There need be no proof of actual damages in
intentional trespass.
2. Bradley v. American Smelting & Refining Co.: The doctrine of trespass
expanded to gaseous and particulate emissions in recognition of modern
scientific developments that make detection more precise. A trespass
requires proof of an invasion affecting an interest in the exclusive
possession of property, an intentional doing of the act which results in the
invasion, reasonable foreseeability that the act done could result in the
invasion, and substantial damages to the property.
3. City of Newark v. Eastern Airlines: A landowner owns as much of the
space above his land as he actually occupies, as well as the amount he may
use in connection with the land. In overflight cases, there must be
evidence that the aircraft flights were at such altitudes as to interfere
substantially with the landowner’s possession and use of the airspace
above the surface.
VIII. Trespass to Chattels: The intentional interference with possession of another,
without consent of the person entitled thereto and without privilege, which
interference causes actual damage.
A. Prima Facie Case for Trespass to Chattels:
1. Act-Interference with the exclusive right of another to use and possess a
chattel. (Intermeddling or Dispossessing)
2. Intent
3. Causation
4. Damages
B. Trespass must be intentional
C. Mistake is no defense to trespass to chattels
D. Actual damages are required. Nominal damages are not awarded.
E. The person entitled to possession of the chattel has the privilege to use
reasonable force to protect his possession against harmful interference.
F. Anyone with possession can bring action.
G. Cases:
1. Glidden v. Szybiak: Intentional intermeddling with a chattel constitutes a
trespass only if (1) the chattel is harmed, or (2) the possessor is deprived
of the use of the chattel for a substantial period of time, or (3) the
possessor suffers bodily harm.
IX.
Conversion: The intentional, wrongful, acquiring, altering, damaging,
transferring, using, or withholding of the personal property of another. The
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interest protected is that of possession, control, or right to control of a
chattel.
A. Rest.2d § 222A: Conversion is an intentional exercise of dominion or control
over a chattel, which so seriously interferes with the right of another to control
it that the one interfering with it is justly liable to the other for the full value of
the chattel.
B. Prima Facie Case for Conversion:
1. Act-Interfering with the plaintiff’s right to possess chattel
2. Intent
3. Cause
4. Serious interference with right to control.
5. Justice requires you to pay the full value. You Did It, You Bought It!
C. Acts of conversion:
1. Wrongful acquisition (theft)
2. Wrongful transfer (misdelivering, selling)
3. Wrongful detention (refusing to return to the owner)
4. Substantially changing
5. Severely damaging or destroying or altering it
6. Misusing the chattel
7. Receiving it
8. Disposing of it
9. Refusing to surrender it
D. Factors to take into consideration:
1. Dominion/Control…Extent/Duration
2. Intent
3. Harm done to the chattel
4. Interference…Extent/Duration…with right to control
5. Inconvenience and expense to the one entitled to possession.
6. Neither good faith nor mistake is a defense to conversion.
E. What can be converted:
1. Personal property
2. Intangibles that have been reduced to physical form
3. Not things that are intangible (customer lists, real property, etc.)
F. Anyone in possession may bring action
G. Cases:
1. Russell-Vaughn Ford, Inc. v. Rouse: Intentional exercise of dominion over
property to the exclusion or in defiance of plaintiff’s rights is a
conversion. The fact that plaintiff had other keys available with some
effort was immaterial since plaintiff was preventing from exercising
lawful control over his car by defendant’s wrongful conduct.
X.
Privileges (Defenses)
A. Consent: Defendant is not liable for tort if plaintiff consented to act.
1. Express (Actual) consent-plaintiff expressly shows by words or conduct,
his willingness to submit to defendant’s conduct.
2. Implied consent:
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a. Apparent consent-what a reasonable person would confer from
plaintiff’s conduct.
b. Consent implied by law-emergency situations where plaintiff is
incapable of consenting, but a reasonable person would consent.
3. Invalid consent:
a. Incapacity-Infants, Unconscious, etc.
b. Criminal acts-A person cannot consent to a criminal act
c. Consent by Fraud-Invalid
d. Consent by Duress-Invalid
e. Consent by mistake is invalid if defendant caused or knows of mistake
and takes advantage of it.
f. Exceeding scope of consent given is invalid
4. Burden on the defendant to plead and prove the existence of a privilege or
consent.
5. Cases:
a. O’Brien v. Cunard: Plaintiff did not verbally object to the shot. The
act of raising her arm was conduct which indicated consent (implied
consent) to shat would otherwise have been a tort.
b. Mohr v. Williams: A medical doctor does not have a free license to
perform whatever procedures he desires. He must first consult the
patient. The exception would be in an emergency or life threatening
situation. Neither was present here. In this case the doctor is guilty of
battery for operating without consent.
c. DeMay v. Roberts: A person who obtains another’s consent by deceit
and misrepresentation may be liable for deceit, invasion of privacy and
assault.
d. Hart v. Geysel: One who engages in prize fighting, an unlawful
activity, and sustains an injury does not have the right to recover any
money for damages sustained in the fight, due to his express
consent…This would allow that party to profit from his own
wrongdoing.
B. Self-defense: One may be privileged to use force in self-defense if such force
appears reasonably necessary for the protection of the actor.
1. Non-deadly force may be used in self-defense where the actor reasonably
believes he will be caused immediate harm by the other person’s conduct.
Such force must be reasonable under the circumstances, and cannot go
beyond the necessity of the situation.
2. No duty to retreat or comply with the demands of the aggressor.
3. Deadly force may be used in self-defense where the actor reasonably
believes that the other person’s conduct will result in either death or
serious bodily harm to the actor.
4. Where the danger has passed, the privilege of self-defense expires.
5. Where an actor uses excessive force in defending himself, the other party
has the privilege of protecting himself against the actor.
6. Mistake is allowed in good faith
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C. Defense of Others: One may be privileged to use force in the defense of others
if:
1. He reasonably believes that the other person would be privileged to
defend himself,
2. The force used is reasonable under the circumstances, and
3. Intervention is necessary to protect the other person.
4. Mistake is allowed in good faith.
D. Defense of Property: One is privileged to use that force reasonably necessary
to defend one’s property.
1. Used to prevent tort to property
2. Reasonable force only, not deadly force (Katko v. Briney)
3. Mistake allowed
4. The value of the intruder’s life outweighs the value of the owner’s goods.
E. Recapture of Chattels:
1. One is privileged to use reasonable force to recapture chattels if:
a. He is entitled to immediate possession,
b. Return has been demanded and refused,
c. He is in fresh pursuit,
d. The person from whom the recapture is effected is the wrongdoer or is
not a bona fide purchaser from the wrongdoer and
e. The force used is reasonable under the circumstances. Ex. Hodgeden
v. Hubbard.
2. Entry upon land to remove chattel:
a. Owner is privileged to enter wrongdoer’s land to recover chattel in a
timely and reasonable manner.
b. Owner is privileged to enter innocent party’s land to recover chattel in
a timely and reasonable manner if notice is given.
c. If the chattel is on another’s land through owner’s fault, there is no
privilege.
3. Mistake is not privileged.
4. Shopkeeper’s privilege: A merchant has a right to make a reasonable
investigation, based on a reasonable belief, of a person suspected of theft.
This extends to the immediate vicinity of the premises.
F. Necessity:
1. Public Necessity: One is privileged to enter land or interfere with chattels
of another if it is reasonably necessary or if it reasonably appears
necessary to avert a public disaster:
a. An immediate and imperative necessity
b. An act that is in good faith for the public good
c. The privilege is conditional and it disappears when the act becomes
unreasonable under the circumstances.
d. A complete privilege
e. If the property owner resists defendant’s attempt to enter the land or to
deal with the chattels, defendant may use whatever force is necessary
to effect the privilege, including deadly force if necessary. Where a
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public disaster is threatened, it may be appropriate to endanger one life
in order to protect many lives.
2. Private Necessity: Act solely for the benefit of any person or property and
you are liable for the damages you cause.
a. Private necessity is an incomplete defense
b. Rule of Thumb: Always save something more valuable than you
damage.
G. Justification: Restraint or detention that is reasonable under the circumstances
and that is imposed for the purpose of preventing another from inflicting
personal injuries or damaging or interfering with real or personal property in
one’s lawful possession or custody is not unlawful.
XI.
Negligence: Any conduct, except conduct recklessly disregardful of an
interest of others, which falls below the standard established by law for the
protection of others against unreasonable risk of harm. Rest.2d § 282.
A. Prima Facie Case for Negligence:
1. Duty to conform to a certain standard of conduct
2. Breach of duty
3. Actual and Legal (Proximate) cause
4. Damage
B. Negligence Theories:
1. Posner: Economic efficiency underlies negligence law
2. Holmes: Fairness underlies negligence law
3. Lerned Hand: Negligence = probability x gravity  burden
C. Determination of risk:
1. A person is bound only to use care that is commensurate with the hazard
involved. The risk reasonably perceived defines the duty owed. Tort law
does not require elimination of all risk.
2. According to the Rest.2d § 289, the actor is required to recognize that his
conduct involves a risk of causing an invasion of another’s interest if a
reasonable man would do so while exercising (a) such attention,
perception of the circumstances…intelligence and judgment as a
reasonable person would have and (b) such superior attention, perception,
memory, etc., as the actor himself has.
D. Risk cases:
1. Lubitz v. Wells: The act must be unreasonable. The mere possibility of
injury is not sufficient. There must be a foreseeable, reasonable
probability of injury. It is not a question of what might happen. In this
case, a golf club is not so intrinsically dangerous that it was negligence to
leave it lying in the yard. There must be sufficient probability to cause a
reasonable person to take action against the appreciable risk.
2. Blyth v. Birmingham Waterworks Co.: A person is not liable for
negligence if they act as a reasonable person would act under the
circumstances and take reasonable precautions to provide against the
occurrence of injury. A person is not liable where the circumstances
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constitute a contingency against which no reasonable man can provide
(accident). Negligence can either be an act or an omission (doing what a
prudent and reasonable person would not do or not doing what a prudent
and reasonable person would do).
3. Gulf Refining v. Williams: The test for foreseeability is the existence of
some real likelihood of damage and the likelihood is of such appreciable
weight and moment as to induce, or which reasonably should induce
action to avoid it on the part of a reasonably prudent person. Foreseeable
does not necessarily mean more probable than not.
4. Chicago v. Krayenbuhl: Utility v. Harm: The social utility in the use of
dangerous machinery outweighs the danger of possible injury, thus
justifying the risks involved in the use of the machinery. However, the
burden of locking such machinery was slight and the gravity of possible
harm was large. Such an omission was not something a reasonable person
of ordinary prudence would allow. Rest.2d § 291: A risk is unreasonable
and an act negligent if the risk is of such magnitude as to outweigh the
utility of the act.
5. Davison v. Snohomish County: The burden of maintaining all country
roads to meet the needs of modern vehicles may be too large, even
considering the risk of possible injuries.
6. United States v. Carrol Towing: The barge owner’s liability depends upon
whether his burden of adequate precautions (B) is less than () the
probability that the barge will break away (P) multiplied by the gravity of
the resulting injury if it does (L). If BPL, the barge owner is negligent.
E. Economic Meaning of Negligence: Posner
1. If risk is greater than utility then there is negligence (Rest.2d §§ 291-293)
(similar to PLB)
2. Utility factors include:
a. Social value of (D’s) interests/conduct
b. Chance of advancing (D’s) interests by the particular conduct
c. Chance of advancing (D’s) interests by less dangerous conduct
3. Magnitude of Risk factors include:
a. Social value of the interests endangered
b. Extent of chance of invading interests of others (in plaintiff’s class)
c. Extent of likely harm
d. Number of persons likely to be harmed
F. The Reasonable Person Standard of care: That which the average reasonable
person of ordinary prudence would follow under the same or similar
circumstances. The standard is an external and objective one.
1. Vaughan v. Menlove: The question of whether the defendant acted
honestly and to the best of his judgment is immaterial. The rule by which
defendant’s conduct is measured requires in all cases a regard for caution
such as a person of ordinary prudence would observe.
2. Delair v. McAdoo: An ordinary person of reasonable prudence has a duty
to know some things of general knowledge and must be aware of things
reasonably ascertainable upon inspection. The danger associated with
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threadbare tires is so great that driver must be held to a knowledge of the
facts. This is the same principle that makes a loaded gun dangerous,
regardless of the owner’s ignorance that the gun is dangerous when
loaded. (Not what you know, but what you should know)
3. Trimarco v. Klein: When proof of an accepted practice is accompanied by
evidence that a defendant conformed to it, this may establish due care.
Conversely, when proof of a customary practice is coupled with a showing
that it was ignored and that this departure was a proximate cause of the
accident, it may serve to establish liability. Evidence of custom is not
conclusive. It just helps to show what a reasonable person should do.
Holmes: What usually is done may be evidence of what ought to be done,
but what ought to be done is fixed by a standard of reasonable prudence,
whether it is usually complied with or not.
4. Cordas v. Peerless Transportation Co.: Negligence is always determined in
relation to the circumstances. The standard is still that of the reasonable
person, but less is expected of a reasonable person under emergency
circumstances.
5. Roberts v. State of Louisiana: A blind person must take the precautions
which the ordinary reasonable person would take if he were blind. In this
case, if a reasonable blind man does not have to walk with a cane but can
rely on facial sense when in familiar surroundings, then the plaintiff in this
case doesn’t have to either. An infirmity is treated merely as one of the
conditions under which a handicapped individual must act.
6. Robinson v. Lindsay: Snowmobile case: Children are usually held to the
standard of conduct of that of a reasonable person of like age intelligence
and experience under the circumstances. (Rest.2d § 283A) Unless the
child is engaged in adult activity…the Rest.2d and the minority use the
adult standard if the child is engaged in adult’s only activity where you
need adult qualifications but the majority applies the adult standard to
children who are using inherently dangerous instrumentality, etc.
7. Bueunig v. American Family Ins. Co.: Mental Illness is a defense when
(1) the effect of the mental illness or hallucination affect the person’s
ability to understand or appreciate the duty which rests upon him to use
ordinary care, or (2) if the insanity affects his ability to act in an ordinary
prudent manner and (3) there must be an absence of notice or forewarning
to the person that he may be suddenly subject to such a type of insanity or
mental illness. (McNichols says this is the minority position)
8. Lynch v. Rosenthal: A mentally deficient person who cannot appreciate
the danger of moving machinery but can comprehend a warning to stay
away from it, is not capable of contributory negligence.
G. Professional Standards of Care:
1. Medical Professionals: Held to the standard of a reasonably prudent
physician under same or similar circumstances.
a. National Standard: 76 O.S. § 20.1: The standard of care required of
those in the healing arts shall be measured by national standards.
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2.
3.
4.
5.
b. Locality Rule: A reasonably prudent physician in the same or similar
locality.
Cases:
a. Boyce v. Brown: One licensed to practice medicine is presumed to
possess the degree of skill and learning possessed by the average
member of the medical profession in good standing in the community
in which he practices and to apply such with ordinary and reasonable
care to those who come to him for tx. Old Locality Rule
b. Morrison v. MacNamara: Rejects the old locality rule: Doctors,
hospitals, medical labs and other health providers should be held to a
national standard. The old locality rule may foster substandard care.
Informed consent cases:
a. Scott v. Bradford: (Minority Rule, Oklahoma case) There is a duty to
disclose all material risks incident to treatment. But you don’t have to
disclose (1) risks that ought to be known by everyone or are already
known to patient, (2) if full disclosure would be detrimental to patients
total care and best interests, or (3) where there is an emergency and the
patient is in no condition to determine for himself whether treatment
should be administered. The cause of action for lack of informed
consent requires that if the patient would have chosen no treatment or
a different course if alternate and material risks were made available to
him. For instance, if disclosure of material risks incidental to
treatment, would have resulted in a decision against it.
b. Canterbury v. Spence: (Majority rule) A risk is material when a
reasonable person, in what the physician knows or should know to be
the patient’s position, would be likely to attach significance to the risk
in deciding whether or not to forego the proposed treatment.
c. Moore v. The Regents of the University of California: (1) A person of
adult years and in sound mind has the right to determine whether or
not to submit to lawful medical treatment. (2) The patient’s consent to
the treatment must be an informed consent. (3) In soliciting the
patient’s consent, a physician has a fiduciary duty to disclose all
information relevant to the patient’s decision. The scope of the
physician’s communication to the patient must be measured by the
patient’s need. Need is whatever information is material to the
patient’s decision.
Legal Professional’s standard of care:
a. Hodges v. Carter: An attorney who acts in good faith and in an honest
belief that his advice and acts are well founded and in the best interest
of his client, is not answerable for a mere error of judgment or a
mistake in a point of law not settled by the court of last resort and on
which reasonable doubt may be entertained by well-informed lawyers.
The Professional Pilot’s standard of care:
a. Heath v. Swift Wings, Inc.: Although a greater standard of care than
that of the ordinary man applies to people with special skill in a
particular endeavor, it is still an objective standard.
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XII.
Breach: Show that the defendant was an unreasonable risk taker by showing
violation of rules of law, violation of statute, or custom. Alternatively, show
that the defendant was an unreasonable risk taker.
A. Rules of Law
1. Pokora v. Wabash Ry. Co.: Duty depends on the circumstances and upon
the judgment of the jury. Duty is conditional upon the presence of
impediments whereby sight and hearing become inadequate for the
traveler’s protection.
B. Violation of Statue:
1. A violation of statute is negligence per se if:
a. It results in injury to a member of a group that the statute was
trying to protect,
b. When injury was one of the kind the statute was trying to prevent
and
c. The violation is the proximate cause of the injury
2. Excuses for statute violation:
a. Emergency
b. Compliance would be more dangerous
c. Compliance would be beyond the defendant’s control
d. Defendant made a reasonable attempt to comply
3. Effect:
a. Violation of statute is conclusive evidence = negligence per se
b. Violation of ordinance is a rebuttable presumption = jury question
c. Violation of regulation is a permissible inference = some evidence of
negligence.
4. Cases:
a. Osborne v. McMasters: Failure to perform a duty imposed by statute
constitutes conclusive evidence of negligence (negligence per se) and
renders the party liable for damages resulting from it.
b. Stachniewicz v. Mar-Cam Corp.: A violation of a statute or regulation
constitutes negligence as a matter of law when the violation results in
injury to a member of the class of persons intended to be protected by
the legislation and when the harm is of the kind the statute or
regulation was enacted to prevent.
c. Ney v. Yellow Cab Co.: Although the violation of a statute is prima
facie evidence of negligence, this creates no liability. Rather, the
injury must have a direct and proximate connection with the violation
of the statute before liability will be held to exist. The intervention of
a criminal act may not break the causal chain if the criminal act might
have been reasonably foreseen at the time of the negligence.
d. Brown v. Shine: In order to show that the plaintiff has been injured by
defendant’s breach of the statutory duty, proof must be given that
defendant, in such treatment, did not exercise the care and skill which
would have been exercised by qualified practitioners within the state,
and that that lack of skill and care caused the injury.
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e. Martin v. Herzog: When a statute applies to the facts, an unexcused
violation is negligence per se, which must be declared by the court and
not left to the jury. This is not a jury question because reasonable
persons would not differ…However, proximate cause is a question for
the jury.
f. Zeni v. Anderson: Violation of the statute which has been found to
apply to a particular set of facts, establishes only a prima facie case of
negligence; a presumption which may be rebutted by a showing on the
part of the party violating the statute of an adequate excuse under the
facts and circumstances of the case.
C. Proof of Negligence: Banana Peel cases:
1. Goddard v. Boston and Maine R.R. Co.: Directed verdict for the defendant
because the banana peel could have been dropped by any one of the
persons leaving the train. There was no evidence showing the defendant
dropped the peel or knew of its existence.
2. Anjou v. Boston Elevated Railway Co.: Jury question on negligence if the
evidence supports a reasonable inference of negligence of the defendant.
3. Joye v Great Atlantic RR: Judgment for the defendant and jury verdict for
the plaintiff reversed because the jury would not be able to determine
whether the banana had been on the floor for an unreasonable amount of
time so that the defendant would be charged with constructive notice of
the condition.
4. Jasko v. F.W. Woolworth Co.: Judgment for defendant reversed, new trial
(jury question) ordered due to the operating methods of the pizza
proprietor that were such that dangerous conditions are continuous, or
easily foreseeable. The logical basis for the notice requirement dissolves.
D. Res Ipsa Loquitur (The thing speaks for itself)
1. Traditional test:
a. The occurrence is the kind of thing that does not ordinarily occur but
for someone’s negligence,
b. The occurrence must have been caused by an agency or
instrumentality within the exclusive control of the defendant, and
c. The occurrence was not due to any contribution or voluntary action by
the plaintiff.
2. Restatement test (Rest.2d § 328D): It may be inferred that plaintiff’s harm
is caused by defendant’s negligence when:
a. The event does not ordinarily occur without negligence,
b. Other responsible causes (including conduct of the plaintiff) are
sufficiently eliminated by the evidence, and
c. The indicated negligence is within the scope of the defendant’s duty to
the plaintiff
3. Oklahoma’s Res Ipsa Loquitur test: Harder v. Clinton:
a. Injury does not occur in the course of everyday conduct (unless
someone is negligent????)
b. Defendant exclusively controlled the instrumentality that caused the
injury.
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c. Evidence of the true explanation of the injury is more accessible to the
defendant.
d. Circumstances surrounding the event are not likely to produce an
injury unless the defendant fails to exercise due care to prevent its
occurrence. (This element is really the bottom line result when you
go through the traditional elements. However, nowhere in Harder is
the base element #1)
4. Procedural Effect of Res Ipsa Loquitur:
a. Permissible inference: Majority view and the traditional notion of RILRIL warrants a permissible inference of negligence from which the
jury may draw or not.
b. Rebuttable Presumption: Minority view. The defendant is negligent
unless he rebutts the plaintiff’s evidence with his own evidence. (He
must bring it back to the 50/50 line, then the defendant wins unless the
plaintiff presents more evidence…the burden of proof is still on the
plaintiff.
c. Shifts the burden of proof: Very small minority view. If plaintiff
presents evidence of defendant’s negligence, the defendant must prove
non-negligence. He must push it back to the 50/50 line and beyond;
back into defendant directed verdict territory.
5. Cases:
a. Byrne v. Boadle: Traditional application of RIL
b. Cox v. Northwest Airlines, Inc.: Traditional application of RIL
c. Holmes v. Gamble: To withstand a defense motion for a directed
verdict for RIL, a plaintiff must adduce evidence, which, when viewed
in a light most favorable to the plaintiff, establish that the existence of
each element of RIL is more probable than not. This case actually
uses the restatement test.
d. Larson v. St. Francis Hotel: RIL applies when the plaintiff proves that
(1) there was an accident, (2) that the thing or instrumentality which
caused the accident was under the exclusive control of the defendant
and (3) that the accident was such that in the ordinary course of events,
the defendant using ordinary care, the accident would not have
happened.
e. Ybarra v. Spangard: Where a plaintiff receives unusual injuries while
unconscious and in the course of medical treatment all those
defendants who had any control over his body or the instrumentalities
which might have caused the injuries may be properly called upon to
meet the inference of negligence by giving an explanation of their
conduct.
f. Sullivan v. Crabtree: RIL affords “reasonable evidence” that the
accident arose from negligence in the absence of an explanation by the
defendant. RIL makes a case for the jury, permitting them to choose
the inference of defendant’s negligence in preference to other
permissible or reasonable inferences.
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XIII. Causation
A. Causation-in-Fact:
1. But-For Test (Sine Qua Non = without which not): Plaintiff’s harm would
not have happened but for defendant’s conduct. X is not a cause of the
event if the event would have happened without it.
2. Substantial Factor: X was a substantial factor in causing injury.
3. Cases:
a. Perkins v. Texas & New Orleans RY Co.: Negligence is not actionable
unless it is a cause in fact of the harm for which recovery is sought. It
does not have to be the sole cause, just so long as it was a substantial
factor in bringing about the harm.
B. Proof of causation:
1. Post hoc ergo propter hoc: After this, therefore because of this. Just
because one event occurs after another, it does not mean it was caused by
the prior event.
2. Expert testimony may be required to prove causation.
3. Once a plaintiff establishes that the defendant’s acts or omissions have
increased the risk of harm to another, such evidence furnishes a basis for
the jury to make a determination as to whether such increased risk was a
substantial factor in bringing about resultant harm.
4. FRE § 702: If scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or determine a fact in
issue, an expert may testify thereto. There must be a reliable foundation
and relevant to the case at hand).
C. Concurrent causes: Where separate acts of negligence combine to produce
directly a single injury, each tortfeasor is responsible for the entire result, even
though his act alone may not have caused it. Must use substantial factor test,
not the but-for test. (Joint and Several Liability)
D. Market Share Liability: Each defendant is liable for the percent of damages
equal to the percent of product produced, unless the defendant can
demonstrate that he is not liable. (Not the majority view)
E. Lost Chance Doctrine: If plaintiff had a 50% chance of dying and a doctor
negligently reduced that chance to 15%, the doctor is liable for 15% of the
total death damages.
F. Proximate Cause: (Legal cause, responsible cause): A concept which cuts off
liability, even though there is cause in fact.
1. Oklahoma does not use the term “proximate” in its jury instructions but
rather “direct”. The instructions define direct in “but for” cause in fact
language. To be direct requires some foreseeable injury to a person in the
plaintiff’s situation. (O.U.J.I. #9.6)
2. The question of proximate cause is a mix of:
a. Precedent
b. Policy
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c. Logic
d. Fairness
e. Common sense
3. Cases in which proximate cause is an issue:
a. No liability for policy reasons
b. Consequences to plaintiff are unforeseeable
c. Intervening cause (Supervening in OK) breaks causal link
d. Responsibility shifts to third person (The conduct of the third person
relieves the defendant of responsibility.
4. Proximate cause problems:
a. Cause in fact
b. Unforeseeable consequences
i.
Direct causation (hindsight)
ii.
Foreseeable result (foresight)
c. Intervening cause
d. Shifting responsibility
e. Apportionment of damages
5. Unforeseeable consequences cases:
a. Ryan v. New York Central R.R. Co.: Where the damages incurred are
not immediate but remote, there is no cause of action. There must be
foreseeability that the injury would occur; it must be the ordinary and
natural result of the fire. Conditions beyond the defendant’s control,
such as the degree of heat, state of the atmosphere, etc., are not under
the responsibility of the defendant to foresee.
b. Bartolone v. Jeckovich: The thin skull case. A defendant must take his
plaintiff as he finds him. He may be held liable for aggravation of
plaintiff’s pre-existing condition.
c. In re Arbitration between Polemis & Furness, Withy, & Co., Ltd.: If an
act would or might probably cause damages, the fact that the damage it
in fact causes is not the exact kind of damage one would expect, is
immaterial, so long as the damage is in fact directly traceable to the
negligent act and not due to the operation of independent causes. This
case uses the hindsight or direct cause analysis for determining
foreseeability. This may result in limitless liability.
d. Wagonmound I: A defendant is only liable for those consequences of
his negligence which were reasonably foreseeable at the time he acted.
This case overruled Polemis.
e. Wagonmound II: If a reasonable man in the position of the defendant
would have realized or foreseen and prevented a risk then the
defendant is liable for damages. This is similar to the U.S. v. Carrol
Towing opinion by Lerned Hand.
f. PALSGRAF:
i.
Justice Cardozo’s majority view: No duty owed to Palsgraf
because she was outside the limits of foreseeable harm. There
can be no duty owed to an injured party when the wrong was
committed toward someone else. The orbit of danger is the
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ii.
orbit of duty. The risk reasonably to be perceived defines the
duty to be obeyed. No duty to those persons that you cannot
foresee harming.
Justice Andrew’s minority view: Negligence involves a
relation not merely to those whom you might expect to injure,
but also to those whom you do in fact injure. Negligence is a
wrong to those who happen to be in the radius of danger and to
those who might have been there. To help determine
proximate cause you must look at these factors:
(1) Natural and continuous sequence between the cause and
effect?
(2) Substantial factor?
(3) Direct causation without intervening causes?
(4) Effect of cause on result not too attenuated?
(5) Cause likely to produce the result in the usual judgment of
mankind?
(6) Could the result be foreseen by exercise of prudent
foresight?
(7) Remoteness in time and space?
XIV. Intervening cause: If an intervening cause is superseding (In OK,
supervening), then the defendant is not liable.
A. Oklahoma Intervening Cause Test:
1. To be supervening (superseding), the intervening cause must be:
a. Independent
b. Unforeseeable
c. Itself sufficient to produce the result
2. Majority Superseding Cause Test:
a. Intervening cause and result were both unforeseeable
b. Intervening cause was extraordinary, freakish, etc.
c. Intervening cause is superseding. Consider factors:
i.
Intervention brings about harm different from that which would
otherwise have resulted from the actor’s negligence,
ii.
its operation or the consequences thereof appear after the event
to be extraordinary rather than normal in view of the
circumstances existing at the time of its operation,
iii.
the intervening force is operating independently of any
situation created by the actor’s negligence, or is or is not a
normal result of such a situation,
iv.
the operation of the intervening force is due to a third person’s
act or to his failure to act,
v.
the intervening force is due to an act of a third person which is
wrongful toward the other and subjects the third person to
liability to him, and
vi.
the degree of culpability of a wrongful act of a third person
which sets the intervening force in motion.
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d. Intervening cause is an act of God.
3. Cases:
a. The Work Site: Liability turns upon whether an intervening act is a
normal or foreseeable consequence created by the defendant’s
negligence. If the intervening act is extraordinary under the
circumstances, not foreseeable or independent of, or far removed from
the defendant’s conduct, it may be a superseding act which breaks the
causal nexus. This type of accident was foreseeable, thus, the car was
not a superseding cause.
b. The Gasoline Spill: An intervening cause is a superseding cause if the
intervening cause is intentional. An intervening cause is not a
superseding cause if the intervening cause is negligent.
c. The Social Host: Guest’s drunk driving was not a superseding cause.
The host is responsible for injuries to third party hit by drunk driver.
The host could foresee that unless he stopped providing drinks to a
guest who had to drive home, the guest was likely to injure someone as
a result of his negligent operation of the vehicle.
d. The Rescuer: To create danger is to create rescue attempts. Such is
within the range of the natural and probable. The defendant’s
negligence invited foreseeable rescue attempts. No superseding cause,
so defendant is liable.
e. The Suicide: An act of suicide, as a matter of law, is not a superseding
cause in negligence law, precluding liability. An initial tortfeasor may
be liable for the wrongful act of a third party if foreseeable. It is a jury
question on whether intervening cause is superseding.
XV.
Defenses:
A. Contributory Negligence:
1. If plaintiff is negligent at all, there is a total bar to recovery.
2. Not a defense to intentional tort (Intentional, willful or reckless conduct),
violation of certain statutes (those that protect a plaintiff who is unable to
protect himself or that expressly abolish contributory negligence).
3. Alabama, Maryland, North Carolina, and Virginia are the only states that
still have contributory negligence.
B. Last Clear Chance Doctrine: If the defendant had the opportunity to avoid the
accident after the opportunity was no longer available to the plaintiff, the
defendant is the one who should bear the loss.
C. Comparative Negligence:
1. Pure comparative negligence: Assign responsibility and liability for
damages, in direct proportion to the amount of negligence. (Defendant
pays % of damages that he is responsible for)
2. Modified comparative negligence:
a. 50/50: Oklahoma’s rule: Plaintiff recovers if he is less than or equal to
50% negligent. Defendant pays his percentage of the damages.
Plaintiff’s negligence cannot be greater than defendant’s negligence to
be able to recover.
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b. 49/50: Plaintiff recovers if he is less than 50% negligent. Defendant
pays his percentage of the damages. Plaintiff’s negligence must be
less than defendant’s negligence.
D. Joint Tortfeasors:
1. Unit Rule:
a. Combine all the defendants’ negligence to compare to plaintiff’s
negligence. If the combination of the defendants’ negligence is greater
than the plaintiff’s negligence then the plaintiff can recover.
b. Majority and Oklahoma Rule
2. Joint and Several Liability:
a. Each defendant is responsible for the entire amount of damages
b. Risk of insolvency on the defendants
c. Minority, 4 states
3. Abolish Joint and Several Liability when you use comparative negligence:
a. Each defendant is responsible for his own percentage of damages
b. The risk of insolvency is on the plaintiff
c. Yes, Oklahoma rule (Laubach v. Morgan)
4. Abolish Joint and Several Liability when plaintiff is not negligent:
a. No, Oklahoma and Majority. Plaintiff can still recover all from either
defendant. In OK, if plaintiff is contributorily negligent at all, you
apply comparative negligence to determine the proportion of
defendant’s liability. If plaintiff is not negligent then you apply J & S
liability and let the defendants’ figure out contribution issues.
b. Risk of insolvency on plaintiff
c. Oklahoma uses pro-rata Contribution Statute instead so one defendant
can sue other defendants who do not pay.
5. Contribution:
a. Joint debtors or sureties may have contribution or repayment.
b. When two or more persons become J & S liable there is a right of
contribution among them even though judgment has not been
recovered against all or any of them.
c. The right of contribution exists only in favor of a tortfeasor who has
paid more than is pro-rata share of the common liability and his
recovery is limited to the amount he paid in excess of his pro-rata
share.
d. There is no right of contribution in favor of any tortfeasor who
intentionally caused or contributed to the injury, etc.
e. A tortfeasor who enters into a settlement with a claimant is not entitled
to recover contribution from another tortfeasor whose liability for the
injury, etc. is not extinguished by the settlement…
E. Assumption of the Risk:
1. Based on consent. It arises regardless of whether due care was used.
2. Express Assumption of the Risk:
a. Must determine whether the risk that injured the plaintiff fell within
the terms of the express agreement.
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b. Must also determine whether the contract itself violates public policy
and should not be enforced.
3. Implied Assumption of the Risk:
a. There must be a risk of harm to plaintiff caused by defendant’s
conduct or by the condition of his land or chattels.
b. Plaintiff must have actual knowledge of the particular risk and
appreciate its magnitude. This is a subjective test.
c. Plaintiff must voluntarily choose to enter or remain within the area of
the risk under circumstances that manifest his willingness to accept
that particular risk.
d. Distinguish from contributory negligence: The failure to fully
appreciate and comprehend the consequences of one’s acts is not
assumption of the risk, but rather, contributory negligence.
e. Primary: Defendant was not negligent because he owed no duty to the
plaintiff in the first place or he did not breach his duty to the plaintiff.
f. Secondary: An affirmative defense to an established breach of duty to
the plaintiff.
4. Implied Assumption of the Risk (Rest.2d § 496(c))
a. Plaintiff has actual knowledge of a particular risk and appreciates its
magnitude.
b. Plaintiff voluntarily chooses to encounter the risk.
c. Circumstances manifest the plaintiff’s willingness to accept the
particular risk.
5. The fact that plaintiff protested against the defendant’s conduct is
evidence that he does not consent to assume the risk.
XVI. Oklahoma Comparative Negligence Instructions:
A. Until 1973, OK had contributory negligence.
B. In 1973, OK replaced contributory negligence with comparative negligence.
A plaintiff is not barred from recovery if his negligence is found to be less
than fifty percent of the negligence causing the injuries.
C. Laubach v. Morgan: OK abolished the joint and several liability rule in
multiple tortfeasor situations and adopted a rule of several liability only. Each
defendant’s liability to the plaintiff is limited to that amount which his
proportionate percentage of negligence bears to the plaintiff’s total damages.
D. In 1978, OK enacted a statute providing for contribution among joint
tortfeasors if the first tortfeasor was required to pay more than is pro rata share
of the plaintiff’s damages.
E. Boyles v. ONG: There is absolutely nothing in Laubach to negate the
continued force of joint and several liability when the plaintiff is not
negligent.
F. Berry v. Empire Indem. Ins. Co.: Oklahoma’s comparative negligence statute
has no application where the plaintiff is free of negligence.
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