Torts Outline

goal of torts

to make plaintiff whole

what will be the toughest issue on the exam

proximate cause

what do you need for causation

BOTH but for and proximate cause, if you dont have both youre not liable

negligence elements

duty, breach, causation, damages

nondelegable duty

you cant give it to someone else but youre supposed to do it, hypo

- snowplow hypo

- i should have had enough snowplows to begin with

who do you only have a duty to for trespassers

known trespassers

what should you look for in the fact pattern and why

specificity, means he wants you to talk about it

What should pay attention to when reading whether bystander had duty

• Whether there was detrimental reliance

What do you still need to consider in RIL cases

What the burden would be of implementing that duty

Who has the burden to prove but for causation

plaintiff

what is the issue with independent concurrent JTF

• Whats the level of encouragement or agreement

intervening causes are almost always considered what

foreseeable

what do they look at in relationship between employee and employer

• Looking at level of control employer has over the work and employee

  • Level of work, amount of hours, et

whats the difference between indemnification and contribution

indemnification is under contract law or common law, contribution is J+S jurisdictions

if you are entitled to indemnification

you can get everything back

example of nondelegable duty

• City hires ACME snowplows

  • Snowplow hits plaintiff’s car

    • They also want to sue city

• Non delegable duty which plaintiff has

  • If you hire someone to do for something you have duty to do yourself, you can be held vicariously liable

double intent definitio

some courts
need intent to make contact AND know the contact would be offensive
this excuses unreasonable beliefs and denies recovery to plaintifs

single intent

most courts adopt
only need to intent contact, dont need to intent to be harmful or offensive

idiosyncratic plaintiff

not reasonable, plaintiff not expected to know and not liable becayse didnt intent harm

parasititic emotional damages

sufferedn an intentional physical injury, mos likely allege and continue suffering emotional distress from it
more casual link - not hard to believe, just need to show injury and doctor to say there was emotional harm

stoic

plaintiff stoic (can take a lot) wont recover

necessity definition

tort commited against innocent 3rd party in order to avoid more serious harm

non-parastitic emotional damages

reverse, initial injury is one of the emotional harm and then may or may not suffer physical injuries from it
does not have element of veracity
must more subjective

several liablity

jury apportion fault to each defendant. only responsible for % given to them

what is the initial question for negligence

what is the duty

bystander who causes danger to plaintiff through tort or by accident

not a true bystander then

custom definition

way party can prove they acted unreasonable or not. but custom must be reasonable one and also the custom relates to the facts of the case

negligence per se across jurisdictions

most jurisdicitions follow it

2 ways of direct plaintiff

2 circumstance: person in harms way of danger and dont get hit.
2nd way is if special relationship between plaintiff and defendant

bystander plaintiff NIED

not in imminent danger nor has special relationship but sees the injury happen

dillon test

factors: proximity to the actual injury (debatable), family, and actually witness

thing test

elements: MUST have been in proximit to event, must be family member, must have actually witnessed

whaat is the standard for but for causation

defendants conduct more likely than not would not have occurred if not for negligence

what happens if the intervening act cuts off the initial tortfeasor liability

then have divisible injury

what happens if each defendant is negligent and plaintiff cant prove which one is negligent

burden shifts to defendant to prove theyre not the neg one

3 types of torts

intentional, negligence, strict liability

5 types of intentional torts

false imprisonment, assault, battery, trespass, damage to chattel

intent definition

Desire the consequences of the act OR actually know to substantial certainty

act definition

voluntary contraction of muscles

torts

civil wrongs for which the victims (plaintiffs) have causes of action against the wrongdoers to recover money judgments

why are tort remedies justified (3)

they create incentives for actors to behave more carefully in the future, they deter future losses, help acheive a less dangerous society

nominal damages

an amount of money awarded simply to commemorate plaintiff's vindication in court

compensatory damages

compensate the plaintiff for losses caused by the defendants tortious conduct

punitive damages

when the defendant's tortious conduct is especially outrageous

what does there have to be in torts cases

fault and damages, plaintiff must prove they suffered some loss

garratt v dailey facts and takeaway

kid pulled chair from adult, 2 ways to prove intent: substantial certainty and desire of consequence

substantial certainty

it is essentially an act of science that the consequences of the act will occur

Consequence Test

you intended the consequence of the act

intent

did i want it to occur

motive

why did i want it to occur

relevance of youth in plaintiff proving case

they need to show the child was old enough to know AND they actually knew

intent and diminished capacity (2)

Young children are held liable for intentional torts

Insane people too as long as they are capable of formulating the necessary intent

intent to offend or intent to contact

Some courts held that plaintiff must prove defendant intended contact to be harmful or offense

Others have held "mere intent to contact is enough"

mistake

mistake of fact doesnt matter, consequence is still intended

accident

consequences neither intended nor so likely to be negligent

transferred intent

an initial tortious intent that is transferred from one person to another or one tort to another. original defendant must have had tortious intent and plaintiff had to have suffered damage covered by one of intentional torts

battery

intent to cause a harmful or offensive contact or imminence apprehension of one harmful or offensive contact must occur

harmful (4)

even slight injury, doesnt matter where it occurred, usually physical contact, reasonable person standard

offensive

offend a reasonable sense of personal dignity, based upon social usages prevalent at time and place where contact occurs, subjective nature

single v double intent rule

Most courts say as long as intent for contact, that's enough

Double intent

Person has to know the conduct would be offensive

direct v indirect rule

Doesnt have to be skin 2 skin contact

Hitting someone with object

assault

acts with the intent to caues harmful, offensive, contact in order to place person in immediate apprehension

assault intent

tortious intent with battery, intent to cause or place in imminent apprehension or intent for battery

apprehension v fear

dont have to be afraid, you could be able to fend them off

mere words in assault

very rarely sufficient, usually act is required

future and conditional threats

Goes to imminence

Imminence

Without any significant delays

In place to prosecute real threats

Also with imminence you dont have time to protect yourself

false imprisonment

restraining an individual

false imprisonment intent

to cause confinement, most jurisdictions require person to be aware of confinement

reasonable exit v reasonable escape

Reasonable exit

There's a way for you to get out and no reasonable expectation that someone is going to stop you

Like someone is on the other side of the door with a gun

Reasonable escape

There is no exit, but there's a way to escape, no duty and can recover if injured during escape

shopkeeper's privilege

They have falsely imprisoned someone

Comes in if suspect wasnt shoplifting

but says mistake (reasonable) is okay

duration

Could be seconds so long as intent is there

Same three ways of proving intent

Intended consequences

Substantial certainty

Transferred intent

means of confinement

physical barriers, outside, physical force (preventing you from getting away), imminent future threats

intentional infliction of emotion distress goal

meant to fill in gaps where no other torts covers in order for those victims to receive recovery

act for IIED

extreme and outrageous

extreme and outrageous act

shocks the conscious

when do you use IIED

for outrageous acts that are not the other torts

privileges

consent, self-defense, necessity

how to prove consent as privilege

not an affirmative defense, raised in answer, plaintiff proves there was none

types of consent

actual, apparent, implied, societal

actual consent

saying ok

apparent consent

putting arm out, reasonably believe you consented

implied consent

certain activities, plaintiff and defendant relationship gives defendant belief that the act is consensual

ineffective consent types (3)

fraud, duress, incapcity

consent and medical issues

battery if you dont agree, unless emergency

self defense

use of force that appears reasonably necessary for the self-protection of an intended victim

how to determine if you have privilege of self defense (2)

Imminent threat

Can depend upon what youre threatened with

deathly force and self defense

Faced with deadly force → can use deadly force unless you could get away without

reasonable mistake for self defense?

comes down to looking at circumstances

duty to retreat?

depends on level of force and jurisdictions

Not serious - no duty to retreat

When faced with non serious bodily or death, and he's matching that force → not required to retreat

Most states

defense of others

• Used when protecting family members

• Some courts allow mistake

  • Must be reasonable

why would state not require you to retreat? (5)

Deter potential attackers

Crime rates (but standing ground doesnt lower crime rate)

Retributivism

if you can retreat, you dont need self defense

defense of property (2)

Never deadly/serious bodily injury for property

No reasonable mistake allowed for whether privilege exists

relevant factors in determining whether force was reasonable

Kind of weapon

Distinction is whether the weapon is likely to cause serious bodily injury

Didnt use more than what was necessary to protect yourself

You are liable for excessive force

how does defense of property differ from the other previous defenses

Allows reasonable mistake to level of force

No reasonable mistake to whether mistake exists at all

level of force you can use in defending property

NEVER level of causing serious bodily injury or death for just property damage

ONLY allowed if there's reasonable belief they will cause property owner serious bodily harm

necessity definition (4)

Tort committed against innocent 3rd person to avoid greater harm, private v public

If exists defendant cannot force person off of property

Though if private - defendant must pay for privilege

private necessity (4)

Have the right to be on property

If person tosses you off, they will be liable for damages they caused

But you do have to pay for whatever damages you have caused to that third party's property

Have the right to use it, but have to pay for damage caused

public necessity (2)

Being done to protect a large group of people

but what is considered large to count for public?

2 subcategories of duty

does defendat have duty to plaintiff at all, and did defendant breach duty

bystander and duty

no duty to aid unless you begin to help or have a special relationship between plaintiff and defendant