INTENTIONAL TORTS: (1) volitional act + (2) intent (purpose OR knowledge, Garratt, even if unlikely to occur, TRANSFERS: victim/act
intended), (3) causation, D’s conduct is a substantial factor in bringing about the injury. LIABILITY: insane not excused, children not
excused if P can prove elements incl intent (EXC some states excused <7), parents not liable for kids’ torts unless statute imposes,
respondeat superior: employer may be liable, worker’s comp covers neg but not intentional torts not done in furtherance of company.
Battery:
(1) Act by D with
(2) Intent to cause (dual (White)/single (Wagner) intent, transferred intent applies: victim or act)
(3) H/O contact OR imminent apprehension of such a contact, and(O = offends reasonable sense of personal dignity or based on
prior knowledge of P’s fears/sensibilities)
(4) H/O contact occurs (directly/indirectly (Leichtman) or force set in motion (dug hole), victim need not realize contact, medical
care over objection unless obj not known)
(5) Damages: nominal are ok (Elkin)
Assault: (Cullison)
(1) Intent (knowledge/purpose, transfers) to put P in apprehension of an immediate H/O contact, and
(2) REASONABLE (based on D’s apparent ability, P must be aware, not words alone,, D liable despite conditionality on obedience to
command unless privileged (e.g. threat to burglar)) and IMMINENT (no significant delay, present ability to carry out)
apprehension of H/O contact (battery) occurs.
(3) Damages: nominal are ok
False Imprisonment:
(1) Intent to confine (knowledge/purpose; w/o intent may be neg/reck if threatens harm, e.g. accidental locking in grocery freezer)
(2) Confinement occurs, and (complete (D required to escape if reasonable), by threat of force/duress/invoking legal authority
(contrast Hardy vs. McCann), physical barrier/force (held w/in certain limits, not excluded from going somewhere, force can be
directed at P or family/property, e.g. holding purse).
(3) P is AWARE of confinement or HARMED by it (e.g. baby locked/suffocated in vault yes, sleeping person locked in no)
(4) Damages: not limited to actual EXC. in case of harm not awareness
Intentional Infliction of Emotional Distress (IIED)—high bar, cts don’t like
(1) D intentionally OR recklessly
(2) By EXTREME and OUTRAGEOUS conduct (look to relationship b/t parties esp power, awareness of P sensitivities,
severity/regularity (Bruce not Jones), mere insult not enough)
(3) Causes emotional harm to P
(4) That is SEVERE (beyond what reasonable person can be expected to endure, usually severe enough that medical attn sought, not
for harm to esp vulnerable P unless D knows)
(5) Limited Transferred Intent: 3rd party/bystander if P is (a) present and D knows it, (b) related to victim OR suffers actual bodily harm.
Long, didn’t meet presence requirement.
(6) Damages: actual damages req’d, nominal don’t suffice
AFFIRMATIVE DEFENSES TO INTENTIONAL TORTS
Self Defense NOT Threatening D/SBH
(1) Reasonable force (proportional)
(2) Not intended to inflict D/SBH
(3) To defend against H/O conduct that D REASONABLY believes another is about to inflict intentionally upon him (Touchet,
words not sufficient threat)
(4) OR 3rd party if D reasonably believes (a) 3rd party would have self-defense privilege and (b) D’s intervention is necessary for 3rd party’s
protection
(5) No duty to retreat (majority) or comply w/command to escape injury; applies to cover school discipline if not “excessive”
Self Defense by Force Threatening D/SBH
(1) D reasonably believes other is about to inflict intentional bodily harm/death and
(2) That D is thereby in peril of D/SBH that can ONLY be safely prevented by immediate use of deadly force.
--No duty to retreat from dwelling place (unless also that of attacker), no duty to allow other to intrude, no duty to abandon
attempt at lawful arrest; BUT duty to retreat if not dwelling, duty to relinquish any right/privilege other than preventing
intrusion/abandoning lawful arrest.
Arrest and Detention: rule choice, up to legislature
Trad. Common law: firm rule, property owner can detain thief “at his peril” (liable for false imprisonment if turns out he’s innocent)
RS 2d: flexible standard, property owner can detain thief on “reasonable belief” in reasonable manner for reasonable time but must be “on
premises,” silent on off-premises detainment.
Statute: other rules, e.g. WI, allows off-premises detainment if “reasonable”
Defense of Property: trumped by necessity (e.g. docking boat)
(1) Reasonable Force NOT Threatening D/SBH: privilege if
a. Intrusion isn’t privileged/other causes actor to believe it’s not privileged
b. D believes intrusion ONLY preventable by force used
c. D first requested other to desist or believes request will be useless/substantial harm will be done before request can be made
(2) Mechanical Device NOT Threatening D/SBH: use of device is reasonably necessary to protect from intrusion, use of device is
reasonable UTC, and device is one customarily used for such purpose OR reasonable care it taken to make its use known to intruders
(RS 84).
(3) Mechanical Device Threatening D/SBH: privilege exists when actor would have privilege to prevent intrusion by intentional
infliction of deadly force if present (contrast Katko with Graves, force must be reasonable/proportionate/intruder threatening same,
RS 85)
(4) Mistake as to danger allowed (whether force is necessary); mistake as to privilege of other’s intrusion NOT allowed
Consent
(1) Express and conduct complies w/terms
(2) Implied from “reasonable person” standard/conduct (EXC where contrary intention made known (e.g. no trespasser sign), can
disadvantage those w/limited linguistic or cultural knowledge (O’Brien), medical consent implied in emergency, Miller)
(3) Substituted: may be jury Q as to sufficiency (Harvey, mother consenting for adult son under anaesthesia)
(4) Scope: what’s “reasonably expected” in what’s agreed to (e.g. Kennedy, actions for well-being in area of original incision)
(5) Does NOT apply where: conditional and condition exceeded (Ashcraft, non-family blood), lack of capacity incl minors, fraud
(Johnson, undisclosed STD), duress (may be jury Q, teacher/student?), policy decision to preclude (Robins), revoked (but must be
while D still has time to alter conduct)
Public Rights: user of public utilities, public accommodations law, privilege to enter land to reclaim one’s chattels, free speech in mall
Arrests/Searches: officers may enter land to execute searches/warrants, does not incl media
Public Necessity: private party has privilege to enter land of another if he RESOANBLY believes it NECESSARY to avert IMMINENT PUBLIC
disaster. May involve breaking/entering, NOT liable for damages unless govt authority (contrast Surocco w/Wegner).
Private Necessity: in case of emergency, private actor has privilege to enter other’s land if it appears NECESSARY to prevent serious harm
to actor/his land/chattels/other or a 3rd party unless he knows 3rd party wouldn’t want him to. LIABLE for damages unless entry caused by
tortious conduct/CN of possessor (internalize externality cost, Vincent).
NEGLIGENCE: duty, breach, factual cause, proximate cause, damages
DUTY:
(1) RPPUTC under all circumstances, incl dangerous instrumentalities and sudden emergencies (Stewart, Bjorndal), but if danger is
high RP will ordinarily exercise greater amount of care.
a. Objective standard, RPP has same physical traits as particular D but average mental ability (though person with greater
knowledge must exercise it).
(2) Specialized standards: DON’T count: child doing adult things (Robinson), insanity, intoxication, mental disabilities (EXC
institutionalized person hurting caregiver). DO count:
Child: duty to exercise same care as reasonably careful child of like age, intelligence, experience, acting UTC (subjective, allows
mental/emotional deficit considerations). EXC: some cts say very young children incapable (usually under 3, RS 10 says 5),
MINORITY approach groups by age (0-7 incapable, 7-14 presumption against neg, >14 presumption for).
Knowledge/Skill: if actor has knowledge exceeding that of others, it is taken INTO account in determining reasonability UTC
(RS 12, Cervelli, Hill). EXC: sometimes adult learners who cause harm to teachers.
Disability: neg only if conduct doesn’t conform to that of a reasonably careful person with same PHYSICAL disability. Old age
not considered disability, period of sudden incapacitation neg only if reasonably foreseeable (e.g. not taking seizure meds).
Insanity: usually no defense, but MINORITY treats sudden insanity same as sudden physical incapacity (foreseeability)
(3) Negligence Per Se: safety statute has reasonably close application to the facts of the case at hand such that the court uses it to
discretionarily infer a civil COA and determines that an unexcused violation of the statutes is “negligence per se” satisfying duty
and breach. Used when (1) P is within class of persons statute protects (not usually gen pop), and (2) P’s injury is of class
of harms statute was designed to prevent (e.g. NOT when stat forbids selling ammo to kids <21 and kid commits suicide).
LICENSING may or may not count (legislation on “how to do something”?), EXCUSES (incl youth, don’t know of occasion for
compliance, emergency, confusing statute, greater risk in complying, DO reasonably try to comply, NOT excuse to be
unaware/careless, Impson).
(4) Land Possessors: see chart for traditional (50%), otherwise RPP duty (Rowland, 50%)
(5) Medical Professionals (applies to other professionals to, EXC education/clergy, non med = school of belief standards)
a. Practice Standard: standard = custom of profession, care of reasonably careful/skilled physician of CLASS of doctors to which
he belongs; when med authority divided, standard can be choice of “considerable #” of med professionals)
b. Strict Locality: standard = practice of other doctors in same community (resurgent, misguided tort reform strategy)
c. Modified Locality: standard = care exercised by ordinarily careful physicians AT TIME and in SIMILAR LOCALITIES
d. Problems w/custom duty? Reduces innovation, conspiracy of silence, reduced tailored care to patient, progressive over-care
i.
RES IPSA IN MEDMAL: (1) injury causing event does not occur in absence of negligence, and (2) injury was most likely
caused by D or instrumentality in exclusive control of D (“constructive control/right of control”, applies to ALL Ds unless
D shows evidence to contrary, Ybarra; NOT EXCLUSIVE if attributable to preexisting condition); usually need expert
unless obvious (sponges)
(6) Informed Consent: applies to risks of PROCEDURE itself, not dr’s own success rate (but can’t lie, fraud), must disclose risks of
turning down procedure (Truman), if outside procedure use practice custom (Arato). A few cts treat as battery not negligence
(a) Physician failed to comply w/standard for disclosure (RULE CHOICE)
i.
Disclose what Drs would customarily disclose: reqs expert as to custom, rationale: prof standard since
malpractice case, may be therapeutic reasons to withhold info, minimal add’l burden on P who already has to
produce med testimony; probs: overlooks purpose of requiring to disclosure, allowing patient to decide for himself.
ii.
Disclose what reasonable patient would want to know (majority): all info that physician possesses or reasonably
should possess that is material to an intelligent decision by the patient (materiality = lay judgment of jury).
iii.
Disclose what PARTICULAR patient would want to know (rare)
(b) Undisclosed risk occurred and harmed P
(c) (causation) P AND a RP UTC (some cts: judged by RP in light of P’s personal fears/beliefs) would NOT have consented if
informed.
(7) Immunity: NO duty. (Doesn’t apply where duty is to world at large, e.g. exploding nail gun)
a. Spousal: mostly abolished, a few retain but not re: intentional torts or motor vehicle accidents)
b. Children: mostly abolished, RULE CHOICE:
i.
No duty (Augsburger): immunity except as to intentional torts
ii.
RPP (small minority)
iii.
Limited Duty (Goller): immunity except where exercise of parental authority (discipline)/ supervision (food)
c. Charities: mostly abolished, some partial (e.g. neg but not willful acts, abolished only to hospitals, etc). Some cap damages by
statute, immunize re: charity patients but not paying patients, MAY immunize volunteer individuals
d. Federal Government: abolished, FTCA allows claims.
i.
Conditions: State law governs (e.g. MD CN may bar), P must submit claim to govt agency first and can only sue when
agency refused payment/6 mos delay on decision, bench trial, federal court, no punitives, no SL
ii.
Immunity Includes:
--Feres bar: judicially created bar to injuries “incident to service” (e.g. towel in abdomen not recoverable)
--Discretionary functions: BUT no immunity when govt disregards own regulation or improperly carries out
discretionary determination (Whisnant)
Apply Gaubert test:
--Was challenged act discretionary (did govt have choice of action)?
--Was challenged act one congress meant to protect as policy decision (design vs implementation)?
iii.
EXCs from immunity:
--Intentional torts (poss exc: “fostering the risk”, e.g. rifle off base)
--Govt activities (e.g immunity for losing letter in mail but not for hitting you w/mail truck)
--All claims arising in foreign countries
--Combatant activities of military
e. State government: most states follow fed govt and waive generally, retaining in particular (others do reverse, small number
retain virtual immunity).
f. Municipalities: may be separate or same as states. Traditionally IMMUNE (public duty doctrine: no private recovery):
EXC: liable for takings of property
EXC: liable for nuisances (e.g. unsanitary garbage)
Fire/police: IMMUNE from decisions implicating resource allocation
EXC: when they’ve undertaken responsibilities to SPECIFIC members of public, creating “special relationship”
(voluntarily assuming duty to exercise ordinary care in performance of task, DeLong)
EXC: no immunity when improperly carrying out policy decision (Harry Stoller)
g. Public Officials: immune when carrying out official duties when they involve discretionary acts done w/o malice (not immune
for ministerial acts at operational level)
(8) Nonfeasance EXCEPTIONS: generally no duty to rescue, Yania, EXC:
a. Voluntary Rescue: if you choose to rescue, you must act like a RPPUTC while other is in your care + in terminating
i. Cannot make victim WORSE off by abandoning and if other is in IMMEDIATE PERIL at time of termination must show
REASONABLE CARE in terminating (Wakulich)
ii, EXC: if danger to self, no duty to rescue
iii. EXC: Good Samaritan statutes immunize voluntary rescuers in some states (sometimes only professional rescuers)
b. Special relationship = duty to rescue relation in peril
i. Parent/child, school/student, doctor/patient, custodian/in-care, employer/employee, landowner/invitee,
carrier/passenger, innkeeper/guest, shopkeeper/patron
ii. NOT exhaustive, cts can add discretionarily (e.g. Farwell, friend in car/imposed duty, Faltys, frat bro downed/no duty)
c. Own conduct places another in peril/contributes (e.g. giving gun)= duty to use reasonable care to aid/assist (RS 39):
i. Other’s helplessness not required if D is in better position to render aid than P
ii. Can be case-by-case consideration (Mairs/imposed duty on cell phone bearing friends)
d. Statute/ordinance requiring one to act affirmatively
(9) Protect vs. TPSH: generally no duty, Iseberg, EXC where (1) special relationship + (2) foreseeable harm
a. Special Relationship (what counts?): schools: where supervisory + acting in loco parentis, some states limit to on-premises
during school hours (Marquay, principal but not other teachers); colleges NO, landlords NO (some cts: must maintain security level
when resident became a tenant, Funchess); hospital: duty to take reasonable measures to protect domestic violence victim
(McSwane), shop/restaurant owners: duty to protect patrons (Posecai/Reichert)
b. Foreseeable Harm (how much?): RULE CHOICE
i. Specific Harm: duty = D is aware of SPECIFIC, IMMINENT harm to P
ii. Prior Similar Incidents: duty = past history of criminal conduct put D on notice of risk to P
iii. Totality of the Circumstances: duty = based on factors additional to similar incidents, incl nature/condition/location of
land and any other relevant factual circumstances bearing on foreseeability
iv. Balancing Test: duty = foreseeability of harm + gravity of harm > burden of imposing duty on business (few states, shifts
burden of security from public to private enterprise, Schechter: misconstrues “breach” of Carroll Towing, Posecai)
*Still need to prove breach—McSwane!
*After damage calculation, duty may not matter much if several liability—Reichert!
(10) Protect Based on Relationship w/TPSH: duty when risk posed by TPSH w/in scope of relationship
a. Special relationships include: parents/kids (duty only to control SPECIFIC, PRESENT dangerous behavior parent knows or
should know of in exercise of reasonable care, relies on FORESEEABILITY), custodian/in-custody (Dudley, halfway house),
employer/employee (when employment facilitates employee’s harm, e.g. flower deliverer employed w/o background check),
sometimes landlord/tenant, mental health professionals/patients (Tarasoff, usually need FORESEEABLE SPECIFIC harm to usually
readily-identifiable victim, but some states disagree, Thompson; some states CODIFY/REJECT/EXPEND (e.g. suicide, bystanders), may
apply to OTHER DOCTORS too, e.g. warning of dangerous meds effects/communicable diseases, NO duty re: AIDS partners)
b. Negligent Entrustment: giving/selling dangerous item to TPSH who D knows/should know will use it dangerously
i. Traditional: no alcohol provider liability
ii. Duty to drinker: some cts allow, others bar
iii. Social host liability: some cts
iv. Dram Shop Statutes: spans from express liability to certain sales (kids/drunks) to immunity
BREACH: Steps: (1) identify SPECIFIC AUC, (2) ask if there’s factual dispute, (3) identify theory of WHY unreasonable
*Human fallibility not counted; where AUC is inadvertent, B = cost of greater attention
Breach Tests:
(1) Custom: admissible but not conclusive, P sword or D shield, bears on whether D should’ve known of risk, that risk was
unreasonable in community opinion, and feasibility of safety precautions.
--Value life over property (Matthew)
--Avoid greater damage (Matthew)
--Cost-justified precautions
--NOT violating own custom (may be excessive or whole industry may lag, TJ Hooper)
--NOT warning those who can protect themselves better (Stinnett), NOT warning of obvious danger (Stinnett)
Defenses: question custom, show specific conduct posed less risk than similar activity, D adopted other risk-reduction methods
(2) Hand Formula (risk/cost analysis), B(urden)<P(robability of loss) x L(oss cost)
B requires memory of RP (e.g. not high burden to remember you dug a hole) but MAY incl cost of getting more info
(3) Res Ipsa Loquitur: allows introduction of circumstantial evidence to est breach
a. Injury is of type that ordinarily occurs through negligence (est. through appeal to common sense (Byrne), exclude other
possibilities (Warren), or expert testimony (Persinger))
b. Injury usually caused by person in D’s position (instrumentality in D’s exclusive control (incl serial control, Collins) or
MORE probable D was cause, Giles not Barbie)
c. P did not contribute to injury (less rigid now, enough that D was a neg party, Giles)
*Differs from RS elements, see outline
FACTUAL CAUSE: A cause not THE cause (contrast Hale with Salinetro)
(1) Divisible injuries: each D only at fault for harm he caused
(2) Indivisible Injuries:
a. Merged (“duplicative”) causes: occurred at same time/don’t know which occurred first and EACH breach was a
SUBSTANTIAL FACTOR sufficient BY ITSELF to cause THE harm that occurred
--(Landers, 2 cos but not salt packets—careful, lead paint example, not clear each coat would’ve caused THAT harm!)
--Covers multiple causal sets (A, B, C all liable if all leaned on car and 2/3 needed to push over hill)
--Burden shifts to D to sow he was not a substantial factor
--Ct may excuse de minimis contributor (e.g. faulty dam in case of flood)
b. Loss of chance/opportunity doctrine: see outline
c. Ascertainable Sequential: only preempting cause is actual cause (e.g. shooting before poisoning)
--May be a jury question as to whether merged or preempted causes (Dillon, was he already falling to his death (preempted) or
would he have survived in injured state (liable, but only to extent of damages for injured life).
d. Unascertainable Sequential: if P proves (a) ALL Ds acted tortiously and (b) one of the Ds (not someone else) MUST be
responsible, burden shifts to D to show he was NOT a cause or jointly liable (Summers)
*See outline for damages w/multiple actors, CF, joint, several, agreement
PROXIMATE CAUSE: policy choice as to where to cut off liability, D liable only when a reasonable person in D’s position UTC should
have foreseen that his conduct risked injuries (1) of the same general type that occurred (Medcalf) (2) to a general class of persons
to which P belongs (Palsgraf). Ex ante exercise: determine risk created THEN compare harm caused.
(a) What? (Medcalf) harm is w/in class of risks created by negligent conduct
(b) Who? (Palsgraf) P is w/in class of persons risked by negligent conduct
(c) How? If harm caused is same type/degree as harm risked to type of victim risk, LIABLE even if exact manner of causing was
unforeseeable (Hughes)
--If harm that occurs is different in degree/kind from harm risked, not prox cause (Doughty, Darby)—diff sides will characterize
differently to suit purposes
(d) How much? Extent of harm: eggshell skull rule: if extent of harm is greater than expected, no excuse, BUT D’s act must have been
one that would foreseeably cause harm to a normal person, not something that ONLY harmed P b/c of her condition
(e) Where/when? Intervening Act? D liability limited to those harms that result from the risks that made the act tortious
i. NOT superseding if intervening act was w/in risk or connected to it
ii. Criminal acts: sometimes supersede, depends whether w/in class of risks created (contrast Watson with Hines)
iii. Suicide: RULE CHOICE, see outline, traditional/exceptions/case by case
iv. Negligent Intervening Acts: still liable if D put P in situation of “heightened danger” that results (contrast Derdiarian with
Ventricelli)
v. Termination of the Risk: D remains liable until situation has “normalized” after negligent conduct (Horton, gun caps)
(f) Enhanced harm due to aid? Rescue invited, D liable for enhanced harm due to reasonably required aid, EXC if efforts to aid are
unreasonable (e.g. enlarging cut).
DAMAGES: must be actual harm/injury for negligence, P expected to mitigate damages, collateral source rule: doesn’t limit
Compensatory/punitive/damage caps, damage arguments, liability insurance shaping tort law
DEFENSES TO NEGLIGENCE
Contributory Negligence
(a) Contributory Negligence: P’s fault = absolute bar to recovery (5 states), zero-sum game b/t P and D
(b) Comparative Fault:
--Pure CF: doesn’t bar recovery bur reduces damages by P’s % neg
--Modified/Partial CF: various conditions, e.g. WI: P neg NOT greater than neg of D + partial reduction; ND: bar if P fault as great
as combined fault of all Ds
--Equitable and Just Reduction (ME): P’s damages reduced by amount jury considers equitable
*See outline for example calcs, RS 8 suggests factors for assigning shares of responsibility (strength of causal connection, nature of
conduct, awareness of risks, intent w/respect to harm caused)
(c) All-or-Nothing Outcomes After CF
i. ALL D if duty breached is to protect P from his own carelessness (Bexiga), esp if (1) D knows of P’s disability and (2) P’s risky
conduct endangers himself but not others. Stinnett doesn’t apply when P’s ability for self-care is reduced.
ii. ALL D if P has an entitlement/absolute right to act as he did (debatable, LeRoy Fibre, walking alone where dangerous?)
iii. If P has no duty to be careful as a matter of law (Christensen)
Assumption of the Risk
(1) Express: contractual waiver of D liability (total/ltd), must be: (1) enforceable (not fraud/unconscionable/contrary to policy,
Tunkl, look to essentiality of service, alternative vendors, competitive bargaining), (2) scope: must cover AUC (Moore), (3) signed
before injury
(2) Implied Primary: sets lower standard of care in case of inherently dangerous activity, no duty to reduce risks but duty not
to INCREASE risks (Avila, applies to sports and some other activities, e.g. theme parks, criminal activity)
(3) Implied Secondary: waiver like express but implied from conduct (e.g. getting in car with drunk), P must (1) know of the risk
and (2) voluntarily decide to encounter the risk
NIED: see outline
1.
2.
3.
4.
5.
Loss of Consortium: services/society/sex, most bar kids/parental, unmarried cohabitants = sometimes
Near-Miss: RULE CHOICE: impact rule/ZOD/physical manifestations (obj. verifiability)/medically diagnosable harm/abolished
Bystander: RULE CHOICE: Dillon v. Thing as to proximity of time/space/relationship
--Dillon: duty to all who may suffer emot. harm based on P location + sensory contemporaneous perception + close relationship
--Thing: presence at scene + serious distress + close relationship
--Some cts allow delayed perception if scene is unchanged, CF affects, “close relationship” determined by state
Relationship + foreseeability: D behaves carelessly, no physical injury but there’s a preexisting relationship and as a result P is
upset, which was a foreseeable result of D’s conduct (dead body cases, false positive tests, lost tissue samples, not Boyles?)
Toxic Exposure: developing, cts divided, no present disease but > 50% chance of contracting
Products Liability: see outline