Torts

Battery

Intentional Tort

An actor is subject to liability to another for this tort if he:

(1) acts

(2) w/ the intent of causing a harmful or offensive contact w/ the other person, and

(3) the contact results.

Act

In regard to battery, this must be volitional (ex: D can’t be sleepwalking).

Intent

In regard to battery

(1) meaning to cause harmful bodily contact and result in physical injury

(2) meaning to cause offensive bodily contact or to invade dignity (ex: running up to a stranger and kissing them).

Contact

In regard to battery, this does NOT require body-on-body touching; Can touch something connected to the person’s body (ex: grabbing phone from person’s hands); GIF ex. from Twitter.

Single intent

Majority rule; Actor performs action w/

(1) purpose (or motive, or desire) to make contact, or

(2) substantial certainty that contact will occur.

Transferred intent

Tort committed even if person hit by D isn’t who D intended to hit (ex: woman breaking up a fight b/w two kids, D kid accidentally hits woman).

Assault

Intentional Tort

An actor is subject to liability to another for this tort if he is:

(1) acting to

(2) intentionally cause apprehension

(3) of imminent harmful or offensive contact, and

(4) the act causes such apprehension.

Apprehension

Mental state of awareness, such as expectation or anticipation; Does NOT have to be fear.

Imminent

Capable of occurring in a short period of time.

Harmful/Offensive

Reasonable harm or offense determined by community/cultural norms.

Reasonableness

Apprehension must be anticipated by a reasonable person; if a person has an extra sensitivity and D knows this, that is considered.

Threat

Words alone do NOT constitute assault UNLESS they indicate that one will take imminent action; conditional statements are NOT assault (ex: If the judge wasn’t in town, I would fight you).

False Imprisonment

Intentional Tort

An actor is subject to liability to another for this tort if he is:

(1) acting

(2) w/ intent of confining another within a fixed space in a direct or indirect way

(3) where victim is confined by the act, and

(4) is conscious of or harmed by the confinement.

Confinement

Person NOT actually confined if they can leave.

Threats

A person can be confined by actions (locking door) or by words (if you leave I’ll hurt you).

Trespass to Land

Torts to Property

A person engages in this tort if he:

(1) intentionally enters land in possession of the other, or causes a thing or third person to do so, or

(2) remains on the land, or

(3) fails to remove from the land a thing which he is under a duty to remove.

Also includes unintentionally entering land but staying there for unnecessary time/refusing to leave.

Land

Anything fixed to P’s property; can be on or below earth’s surface; do NOT need to cause harm to the property.

Trespass to Chattels

Torts to Property

An actor is subject to liability for this tort if he:

(1) intentionally

(2)(a) dispossessing another of the chattel, or (b) using or intermeddling w/ a chattel in the possession of another

Physical interference w/ the use and enjoyment of personal property in person’s possessions that causes harm to that person or w/ intent or reasonable knowledge of impact; actual harm is needed, chattel does NOT need to be physical (spam email cases).

Conversion of Chattel

Torts to Property

An actor is subject to liability for this tort when he is:

(1) intentionally

(2) exerting control that causes destruction of or substantial interference w/ P’s chattel

Intent does NOT need to be malicious (ex: taking wrong coat from coat closet).

Self Defense

Defenses to Intentional Torts

Person justified in using physical force upon another to defend themselves or third person from what they reasonably believe to be imminent use of unlawful physical force by that person; NOT justified if they were the initial aggressor UNLESS they withdraw and the other continues; reasonable and good faith mistake can be a defense, but excessive force undoes defense; burden on D to prove defense.

Defense to others

Most jurisdictions believe people may defend others on the same basis that they might defend themselves.

Stand-your-ground law

Allows people to resist attacks w/ force in their home or any place one has a right to be even if they have the option to retreat; many states have adopted this.

Defense and Repossession of Property

Defenses to Intentional Torts

Owner of the premises is prohibited from willfully/intentionally injuring trespasser that takes life or results in great bodily injury UNLESS trespasser is committing felony violence or felony punishable by death; force must be appropriate to defense of property — human safety is a higher value than property; NO privilege to use force calculated to cause death or bodily harm when property is being threatened.

Fresh pursuit

Can’t use force to reclaim stolen item if not done immediately or within a reasonable time; doesn’t count if it’s wrong.

Shopkeeper/Merchant’s Privilege

Defense to False Imprisonment

Merchant or agent w/ reasonable cause may detain on premises in a reasonable manner for a reasonable time any person suspected of shoplifting for questioning or summoning of law enforcement; force causing bodily harm NEVER privileged for detention to investigate UNLESS resistance of party makes it necessary for self-defense; one may act on what proves to be an incorrect belief if facts show belief was reasonable; parents can use forces they reasonably see necessary in regards to their children.

Consent

Ordinarily bars recovery for battery by destroying wrongfulness; silence and inaction may manifest consent where a reasonable person would speak if objected; only when notice is given that all such conduct will no longer be tolerated that the D is no longer free to assume consent (consent can be revoked); verbal consent is NOT required.

Consent through participation

Participating constitutes consent to potential injuries that are within the normal scope of the activity; you can consent to crime and then battery is NOT viable (ex: engaging in a fight); operating on a patient w/o patient’s consent is battery (even when performing a different surgery that is consented).

Public necessity

Protects against actual harms done where public rather than merely private interests are involved; D had a reasonable belief that action was needed, and the action D took was a reasonable response to the need to avert an impending peril (ex: city official blew up P’s house in order to prevent a massive fire).

Private necessity

NOT a complete defense; applies when D is threatened or reasonably appears to be threatened w/ serious harm and D responds reasonably in light of that threat by committing technical trespass to P’s property; privilege ends where damages begin and D is liable for physical harm done to property.

Negligence

(1) duty

(2) breach

(3) causation

(4) damages/harm (not just increased risk of harm, must be actual injury)

Duty and Breach

One way to establish negligence (standard rule); What a reasonable person would do under the circumstances; standard never varies but the care which is reasonable varies w/ danger involved in the act (greater danger = greater care).

Sudden emergency instruction

To be entitled to sudden emergency instruction, which makes D NOT guilty of negligence, they must be placed in a position of peril through no negligence of his or her own (ex: hitting a car as a result of following too closely/being unprepared for sudden stop does NOT void negligence).

Foreseeability

Prerequisite to breach; Was the conduct of the D foreseeable to result in injury?

Liability

This exists if the probability of injury and the intensity of injury are greater than the burden to prevent the injury; B < PL

Industry standard

In (blank) industry, it’s custom to (blank), D did not do that, so D is liable; Still needs to be reasonable — common sense > industry standard (ex: Was not the industry standard to have a radio on boat, but was deemed common sense to have one b/c they were so easily accessible and other boats were beginning to have them).

Own exceptional standard

One’s own exceptional standard is NOT a replacement for regular ordinary standard of care (ex: Wal-Mart’s own policy is a higher standard of care than the regular standard, but breaking it does NOT mean breaking regular duty of care).

Negligence per se

One way to establish negligence; Violation of statute or judge-made law that was made w/ the intention to protect the group of people that the P belonged to (only requires duty and breach)

Res ipsa loquitur

To establish this, P must show:

(1) event/accident is the kind that does NOT ordinarily occur in the absence of someone’s negligence,

(2) the injury was caused by an agency or instrumentality within the exclusive control of D, and

(3) the injury was NOT due solely to any voluntary action or omission on P’s part.

But-for test

P’s injury would NOT have occurred but for the D’s negligence (ex: Car struck by train at RR crossing and claims it was b/c there weren’t signs on both sides of the road, but crash probably would’ve happened even w/ two signs); Exception: Substantial factor test

Substantial factor test

Exception to the but-for test; Requires that P prove D’s alleged act or omission was a substantial factor in causing P’s injury even if the injury could’ve occurred anyway (ex: Filed suit claiming negligent treatment far below standard of care diminished her chance of recovery, didn’t need to use but-for test b/c proved negligent treatment was a substantial factor)

Joint and Several Liability

Where the tortious acts of two or more wrongdoers join to produce an injury which from its nature cannot be apportioned w/ reasonable certainty (or can) to any individual wrongdoer; All wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed to judgment against any one separately or against all in one suit.

Increased Risk

If D’s negligent conduct increases the risk of x, and then x happened to P, the more likely a jury will be allowed to find that such conduct was the cause of the harm (causal uncertainty).

Scope of risk

D not liable if actual harm was NOT in the scope of risk that D created; D only liable (a) for types of injuries foreseeably risked by negligence, and (b) to classes of persons foreseeably risked by his negligence.

Proximate cause

Is it foreseeable that the D’s conduct would result in this specific injury?; V/ similar to foreseeability using standard method for duty; If the type of harm is foreseeable but the manner for which it’s conducted is NOT, it’s still a proximate cause.

Rescue doctrine

Rescuer can recover from D whose negligence prompts rescue if the rescuer had reasonable belief that the victim was in peril (this belief doesn’t have to be true).

Unexpected manner issues

Proximate cause exists if the harm incurred is of the same general nature as the foreseeable risk created by a party’s conduct, even if the manner in which the accident happened is unusual/bizarre (ex: Apartment owner had unkept backyard w/ tons of blocks of cement; a kid brought a block to the third floor, dropped it, and it landed on another kid. Harm was within the general scope of risk).

Thin skull rule

D takes P as they find them; When P has something, like a thin skull, D does not know and hits him, and the outcome of harm was much worse than anticipated, D is still liable for that harm.

Superseding/intervening cause

There can be some conduct after what D did that was the tort, and under some circumstances that behavior can cap or eliminate the recovery that P might otherwise have.

Suicide

Individual committing suicide is superseding cause of victim’s loss of life, so it breaks the chain of responsibility for negligence UNLESS the suicide is a foreseeable cause of negligence (ex: Negligence in a mental facility against a patient).

Third party intervening

Where the acts of a third party intervene, liability turns upon whether the intervening act is a normal or foreseeable consequence of situation created by D’s negligence; Precise manner of event need not be anticipated (ex: Construction co. negligently had employees conduct road work w/o safety measures, driver has a seizure and hits employee. Co. is liable b/c it’s foreseeable that employee would be hurt by a car).

Contributory negligence

Absolute defense; If P fails to use ordinary care to avoid danger/obstruction, P cannot recover against D (fully bars recovery).

Comparative Fault

P can still recover damages even if P was partly at fault, as long as P’s fault isn’t greater than D’s; Damages P receives will be reduced based on P’s level of fault.

Waiver agreements

Express assumption of risk through a contract; Waiver to release liability from a recreational activity that puts parties on equal bargaining power can be enforced, contractual obligation that is enforceable b/c P is undertaking the risk (ex: Waiver at gym for spin class, something happened w/ bike, and P was hurt. P could’ve gone to a different gym if P didn’t want to sign gym’s waiver, no unequal bargaining power); If waiver offends public policy then the waiver is NOT enforceable; A signed waiver will NOT prevent liability for negligence of unreasonable risk.

Primary implied assumption of risk

P impliedly assumes risks that are inherent in a particular activity → no duty, if P knew something was risky and did it anyways (ex: P getting hit w/ hot dogs is not an inherent risk of attending a baseball game).

Carriers and host drivers

Carrier of passengers for hire must exercise more than ordinary diligence → high standard of care must be exercised in foreseeing as well as in guarding against danger; D has burden of proof.

Invitee

Enters property of another as member of public w/ owner’s knowledge and for mutual benefit (shared business or economic interest) (ex: entering library to check out book, walking through store to look at clothes).

Duty owed to invitees

A duty of reasonable/ordinary care; can include inspecting premises periodically; same duties owed to licensees.

Licensee

Privileged to enter land only by virtue of the possessor’s consent (ex: entering library to get out of rain, social guest at friend’s house, volunteering).

Duty owed to licensees

Duty to avoid intentionally willful and wanton injury; Ordinary care for activities conducted on the land (construction, fireworks); Duty to warn of dangerous conditions that P is unlikely to know of or find if D knows of P’s presence —> open and obvious risks do NOT need to be warned UNLESS landowner can anticipate the harm despite the obviousness; No duty to inspect.

Trespassers

Enter land w/o consent; Duty to avoid intentionally willful and wanton injury; Duty to warn from dangerous conditions they are unlikely to know of or find if D knows of P’s presence; Open and obvious risks do NOT need to be warned unless landowner can anticipate the harm despite the obviousness; Can use reasonable force to get rid of trespasser.

Child trespasser

Landowner owes a duty of reasonable care if a reasonable landowner would know or foresee that:

(1) there is a dangerous condition on the land,

(2) children are likely to trespass on the land,

(3) b/c of youth, children will face unreasonable risk of serious injuries → only applies to children who b/c of their tender years are foreseeably unlikely to appreciate and avoid dangers.

Recreational Use Statutes

• Diminished duty or none at all when there is recreational use of land w/ permission.

• Fee paying users and social guests still owed duty of care.

Landlords and Tenants

• Traditional limits: no duty of care to make conditions safe.

• Modern trend: expand liability of landlords, duty to exercise due care.

Firefighter Rule

• Precludes firefighters and other public employees from recovering for a D’s negligence that caused the public employee injury.

• Firefighters are licensees, enter at unforeseeable times, assume the risk, Workers’ Compensation

Standard Care of Healthcare Providers

• P in a medical malpractice case must establish the standard of care through expert testimony.

  • Must testify that the industry custom is not what the D did, not that this specific expert would have done something differently.

National standard

Specialists held to a _ _, specialists held to the standard of their specialties.

Good samaritan law

• Protects people who provide reasonable assistance to those who are injured, ill, etc.

• This applies within a healthcare setting as long as there was no previous duty to treat the person (Ex: Doctor who is not the patient’s doctor passes by and helps patient who is in peril → not liable for death)

• Liability may exist for gross negligence even for good samaritans, particularly if they are medical professionals.

• Statute often does not cover treatment in medical centers.

Informed Consent

• A physician owes his patient the duty to disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a procedure.

• Nonconsensual surgery falls under battery, but not all violations of informed consent are battery (Ex: Broken hip, ordered bed rest, if patient knew her options should would’ve chosen surgery).

• P must show that if proper information had been provided, a reasonable person would not have undergone the procedure, not just that they wouldn’t have personally.

• By itself, success rate is NOT a risk related to the procedure, and physicians do not need to disclose them BUT if physician lies then they’re violating informed consent.

Public Duty Doctrine

• Public entities and officers are not liable to individuals for failure to carry out a duty — even a statutory duty — owed to the public at large rather than to specific individuals or groups.

• Recognizes that the duty may be narrowed and liability imposed if the offer or entity takes affirmative action that endangers the P or if the duty becomes individualized b/c of special relationship w/ P (reliance).

Misfeasance

• The improper doing of an act which a person might lawfully do.

• Ex: An accountant making a mistake on someone’s taxes, causing them to be fined.

Nonfeasance

• Omission of an act a person ought to do

• Ex: Teacher fails to report a report of child abuse of one of their students.

Malfeasance

• Doing of an act which a person ought not to do at all.

• Ex: A cop accepting bribes from drug dealers so he does not arrest them.

No Duty to Protect Rule

Generally, there is no duty to protect someone else from the acts of a third person, but there are exceptions.

Duty to Protect from Third Persons

• There is an affirmative duty to protect from third persons if the person has a special relationship w/ either the victim or the person who created the harm.

• Balancing test: In determining that duty exists, the foreseeability of harm must be balanced against the burden imposed on X to protect against the harm → high degree of foreseeability necessary to impose duty on a party (Ex: Sams Club didn’t have high foreseeability that someone would get mugged in their parking lot, thus no duty to protect)

• Special relationship b/w employer and employee while employee is one premises or using chattel.

Negligent Entrustment

A person in control of chattels owes a responsibility not to entrust that chattel to a person who the entruster knows or should know at the time of entrustment is likely to use it in a dangerous way.

Intentional Infliction of Emotional Distress

(1) Extreme and outrageous conduct

(2) Intent to cause or disregard of a substantial probability of causing severe emotional distress

(3) Causal connection b/w the conduct and the injury

(4) Severe emotional distress

• An actor may be liable for this to a party against whom the extreme and outrageous conduct was not direct if the party (1) is a member of the victim’s immediate family who is present regardless of bodily harm, and (2) present at the time of the extreme and outrageous conduct if it results in bodily harm.

Negligent Infliction of Emotional Distress

Prenatal Harms

• A pregnant woman owes no duty of care to her unborn child.

  • The child cannot maintain a cause of action in tort against their mother for personal injuries incurred before birth because of mother’s negligence.

Respondeat superior

Vicarious Liability

• Employer is strictly liable for torts an employee commits so long as the employee is acting within the scope of their employment.

  • It does not matter how careful the employing entity is.

  • Based on employee’s behavior, not their legal liability.

Commuting Rule

• An employee going to or from work is considered outside of the scope of employment unless the trip involves incidental benefit to the employer.

• An employee who is paid for their travel time is within the scope of their employment when traveling.

Strict Liability

• D held liable regardless of whether or not they were negligent.

Animals and Strict Liability

• Strict liability is imposed, but only if the owner knows or has reason to know of the animal’s abnormally dangerous tendencies and liability attaches only if the harm ensues from that dangerous tendency.

• W/ respect to animals said to be “wild by nature,” strict liability is usually imposed for injuries connected w/ the wild characteristics of the animal, so that the person in charge will be held liable in spite of all possible care.

Nuisances to Property

• A person who disrupts the natural state of real property by lawfully bringing something onto his land that, if it escapes, is capable of doing harm is strictly liable for any harm occurring as a natural consequence of the escape.

• Ex: Water reservoir built, broke, and flooded coal mines → strict liability found.

Abnormally Dangerous Activities

• A defendant who uses land in an unnatural way that is likely to cause injury is liable for that injury regardless of carelessness or negligence.

• Ex: Drilling company ruined foundation of a home in the area.

• Strict liability is appropriate when there is no contribution from the victim.

Defenses to Strict Liability

• P’s assumed risk and any contributory negligence in knowingly subjecting himself to risks of harm is a defense, last clear chance

• Comparative fault: In all cases involving physical injury the fact finder should assign shares of responsibility to each party, regardless of the legal theory of liability.

Privity

Only those who have entered an agreement/contract can sue or be sued under it.