Outline Notes

Torts

Battery

(1) Purpose or Substantial Certainty of (2) causing a harmful or offensive contact

Assault

(1) Purpose or Substantial Certainty of (2) causing apprehension of a harmful or offensive contact

Trespass to Land

(2) Unauthorized entry onto somebodies property ((1) Intent to be where you are)

Intentional Infliction of Emotional Distress (IIED)

(1) Purpose or Substantial Certainty of (2) causing severe emotional distress ((3) Must be extreme and outrageous) ((4) Must be a causal connection between the behavior and the emotional distress (and probably it’s symptoms))

Actual Consent

1. Elements

   1. Capacity to consent

   2. Free of Duress

   3. Subjectively willing for conduct to occur

Apparent (Implied?) Consent

If a reasonable person would infer conduct as consenting to an action, not liable for performing that action (O’brien v. Cunnard SS Co., Dr. not liable for giving plaintiff a shot because she raised her arm as if consenting to the shot)

Presumed Consent - the dr. one

1. Presumed

   i. Justified under social norms

   ii. No prior special knowledge

   1. Emergency Exception

   1. Immediate need

   2. Life or limb is threatened (conduct is necessary to prevent)

   3. There is no other way to get their consent (unconscious)

Self Defense

Qualifications

1. Necessity

2. Reasonable belief of imminent danger

3. Proportionate Force

Defense of others

Same as Self Defense, put yourself in the shoes of the threatened party

1. Necessity

2. Reasonable belief of imminent danger

3. Proportionate Force

(some juridictions you are not liable for a reasonable mistake)

Defense of Property

A person has a privilege to use reasonable force to defend their property against threatened and imminent harm.

(must be on the property)

Public Necessity

Elements

1. Imminent Danger

2. Certain Loss

3. Proportionality

4. Good Faith/Reasonableness

Private Necessity

Elements

1. Imminent Danger

2. Proportionality?

3. Good Faith/Reasonableness

Imperfect defense (still liable for damages)

Justification

privilege to take reasonable action to prevent destruction of property or personal injury

Authority

officers of law can engage in other tortious conduct if it is under the scope of their job

Discipline

1. a person has a privilege to commit a tort without being liable for those they can reasonably discipline

   1. Parent/Child or Guardian

      1. Consider factors such as age, sex, etc.

      2. Others – military officers

Duty (Generally)

Reasonably Prudent Person (RPP)

Duty (Children)

Children are held to a standard that is reasonably expected given their age, intelligence, maturity, etc. (except when engaging in “adult” activities like driving)

Duty (Professionals)

Objective Standard: Knowledge, training, and skill of an ordinary member of the profession. (Look to customs)

Duty (Specialists)

1. Held to a higher standard, RPP of the specialty (physicians v. neurosurgeons

3 Areas of Duty for Professionals (Malpractice)

1. Possession of learning, skill, ability;

2. Exercise of best judgment; and

3. Due care/diligence

Different Community Standards

1. National

2. Local Community

3. SImilar Localities

Informed Consent

Failure to inform of material risks, alternative treatments, or financial interests

Informed consent stadards

1. Subjective for the patient

2. Reasonable Prudent patient (minority standard)

3. Reasonable Prudent doctor (majority standard)

Learned Hands Reasonable Risk Calculation of the gods

Breach of Duty when B < PL

1. Where B is burden of adequate precautions; P is probability of injury; and L is the loss (gravity of the injury).

2. If Burden is less than P*L, there is a duty and defendant is liable.

Does the Statute Apply (Elements)

1. Type of Harm - is this the type of harm that the statute is trying to prevent

   1. The harm has to occur

2. Class of Persons - is this the class of persons that the statute is trying to protect

3. Appropriateness - is this appropriate in this situation

   1. Proportionality direct vs. indirect

   2. What is the purpose of the statute?

   3. Is this how they wanted the statute to be used

How to Apply the Statute (Procedural Effects)

1. Negligence per se

2. Rebuttable presumption

3. Evidence of negligence

Res Ipsa Loquitur Elements

1. Instrumentality under exclusive control of defendant

2. Doesn’t ordinarily happen without negligence

3. No other cause

Procedural Effects of Res Ipsa

1. Inference of negligence as decided by the jury

   1. Similar to mere evidence standard

2. Presumption of negligence

   1. D must rebut presumption back to 50/50 line

3. Presumption + Burden shift

   1. D now must disprove his negligence more likely than not (past 50/50 line)

Duty to warn/act/report exists only when

D has

1. Control over the perpetrator/instrument of harm

2. A protective relationship with the victim (look to relationship between D and harmed party)

Invitee

1. Invitee - Customer

   1. Duty to take reasonable care to make premises reasonably safe

Licensee

1. Licensee - social guest

   1. Duty to warn of known, hidden dangers

      1. If property owner knows or has reason to know

Known Trespasser

Jurisdictional differences

1. The duty to trespassers in owed only after actual notice

2. No liability to a discovered trespasser, conduct just can’t be willful or wanton

3. Landowner owes an affirmative duty of reasonable care to warn or protect known trespassers from known or reasonably should have known dangers

Modern Approach - To special relationships

Duty of ordinary care

Attractive Nuisance

1. There is an artificial condition where

   1. Children are likely to trespass

   2. It poses an unreasonable risk to life or limb

   3. Children can’t understand the risk

   4. The burden to eliminate danger is slight compared to risk 

   5. Possessor fails to exercise reasonable care

Recovering for emotional distress

1. Physical impact rule

2. Zone of danger + physical manifestation

3. Physical manifestation Rule

4. Bystander Tests (vary a lot between jurisdictions)

Physical impact rule

Has to be physical impact, once there is tortfeasor liable for all physical and emotional harm (basically Bartolone)

Physical manifestation Rule

If a person’s distress is physically manifested in some way, this is recoverable.

1. Anything that is objectively diagnosable:

   1. Physical Injury

   2. Some jurisdictions allow recovery for things like depression, miscarraige, anxiety, ect., if it can be diagnosed

Bystander may be successful as P if:

1. P is in the zone of danger

2. Dillon Rule (balancing test): 

   1. P was near the scene

   2. Trauma resulted from direct emotional impact (can’t learn about accident after)

   3. P is closely related to the victim

3. Thing Rule (check each one):

   1. P is closely related to victim

   2. P is present at the scene

   3. Damage was severe but not completely unforeseeable. 

But-For test

1. Identify who you're looking at

2. Isolate the instance you're looking at

3. Remove the breach of a duty

4. See if the damages still happen

Substantial factor

1. Looking at causation, begin with but for cause and if that is not satisfied then move on to substantial factor analysis

   1. Jury determined?

Combined causes

1. When separate acts of negligence combine to produce a single injury, each person is liable for the entire result/injury. (Hill v. Edmunds, defendant left truck in road with lights off, but plaintiff saw early enough to avoid it)

   1. Damage would not have happened but for either negligent act.

      1. This is called Joint liability

   2. Multiple “but for” causes.

Independent Causes

1. Where multiple negligent acts would have caused the damage independent of the others, each is still liable for the entire damage.

   1. Damage could have/did occur from either independent act. (Anderson v. Minneapolis St. Paul RR, two fires are started that combine and destroy a guys house, even though one on it’s own probably would have)

   2. This is called Several Liability

Loss of Chance Theory

1. Allowing recovery in a medical malpractice case when but for the malpractice the plaintiff had a chance at not suffering the harm. (Smith v. Providence Medical Services, plaintiff had a 33% chance of not suffering stroke absent malpractice)

   1. If greater than 50% likelihood of no harm had there been no malpractice, plaintiff recovers in full

   2. Recovery allowed in accordance with the percentage of likelihood of plaintiff’s success. (majority)

Suck My Balls

Douchebag

Alternative liability

Shifting burden of proof onto the defendants to prove they are not the cause

Market Share Liability

1. Applies when an entire industry is engaging in a negligent practice (usually pharmaceutical companies) (Sindell v. Abbott Laboratories, Sold a drug that gave children of mothers that took it cancer. Couldn’t indicate who specifically made the drug that gave her issues.)

2. Holds defendants accountable in proportion to their market share. (damages)

3. Must name a substantial portion of the national market in the lawsuit, but doesn’t have to be every possible company. 

4. Burden shifted onto defendants to prove they were not the one to harm plaintiff

Daubert Test (when to admit expert testimony)

1. Soundness (reliability)

   1. Generally accepted in the scientific community

   2. Subject to peer review

   3. Has been tested

   4. Acceptable failure rate

2. Relevance

   1. More likely than not test

Proximate Cause

1. Direct Damage (first damage)

2. Foreseeability irrelevant

3. Foreseeable damage only 

4. Thin-skulled plaintiff rule

5. Zone of danger

Direct Damage (first damage)

1. Most restrictive standard

2. Ryan v. New York Central R.R. Co., court ruled that defendant was liable only the first shed destroyed by the fire (that proceeded to destroy a lot more)

Foreseeability irrelevant

1. Most expansive approach

2. Anything that happens as part of the “chain of events” they also say “direct result”

3. Polemis, shippers dropped a blank that somehow caused an explosion liable for explosion even though nobody would think dropping a plank would make stuff blow up

Foreseeable damage only 

1. Wagonmound 1, court ruled that because oil on water couldn’t foreseeably be lit on fire, defendants not liable. 

   1. Foreseeability threshold

      1. Same rule, BUT even if foreseeability risk is small, if burden to minimize it is low and possible damages are high, then proximate cause is satisfied (Wagonmound 2, same situation but court ruled liable because the engineer knew that in some cases oil could light on water

Thin-skulled plaintiff rule

1. You must take the plaintiff as you find him. If you breached a duty, and you made the person worse in some material way, you are liable.

2. Bartolone, jacked guy gives in to schizophrenia after car accident, defendant liable for everything.

3. Always applied in the case of people regardless of foreseeability because we care about people

Zone of danger

Defendant owes no duty to Plaintiff if plaintiff is not within the “zone of danger” (Palsgraff v. Long Island R.R., guy dropped fireworks under train that shot across and knocked down a clock that hit plaintiff.)

Intervening Cause

1. Liability is not cut off.

   1. We can foresee the general type of harm in the situation.

      1. Derdiarian v. Felix Contracting Group, plaintiff hit by a driver who didn’t take his meds because construction company didn’t put up barriers, both liable because barriers were to be put up to prevent contractors being hit by car

      2. Suicide – Irresistible impulse (if D’s negligence led to victim’s irresistible impulse to commit suicide, then the act was intervening, and liability is not cut off).

      3. E.g., vending machine rat example.

Superseding Cause

1. Liability is cut off.

   1. We cannot foresee the general type of harm in the situation.

      1. Suicide – No irresistible impulse (P committed suicide without an irresistible impulse is a superseding act, and liability is cut off).

      2. A criminal act of a 3rd party that causes harm in concurrence with a negligent act is not generally a reasonably foreseeable consequence. (Watson v. Kentucky & Indiana Bridge & R.R. Co., Duerr the dirty dog threw a cig in open gas)

         1. Exceptions include special relationships and when the exact mechanism of malicous behavior is forseeable

   2. E.g. Man fixing faulty trunk and is hit by a car

Nominal Damages

1. Typically used to vindicate a right.

Compensatory Damages

1. Look to the plaintiff

2. Meant to make a plaintiff "whole".

3. Special and General are two types:

   1. Special: economic damages

   2. General: noneconomic damages

4. Calculating this is important because plaintiffs can only recover when they bring the lawsuit. They can't recover more at any point down the road.

Punitive Damages

1. Look to the defendant

2. Meant to punish the defendant. 

3. Gore Test for Punitive Damages:

   1. Degree of Reprehensibility

      1. Physical harm is more reprehensible and thus more guarded or protected by civil liability law.

   2. Difference between compensatory and punitive damages

   3. Difference between damages and civil penalties

4. 9:1 punitive damage to compensatory damage maximum (State Farm Automobile Insurance Co. v. Campbell, they gave crazy punitive damages)

Damages are excessive when

1. It falls outside the range of fair and reasonable compensation

2. Results from passion or prejudice

3. It is so large that it shocks the conscience

Contributory Negligence Common law rule

1. If the plaintiff’s negligence in the least bit contributed to his harm, he cannot recover (Butterfield v. Forrester, guy left pole sticking out in front of his house and bozo rode his horse into it)

Contributory Negligence Davies Rule

1. Steps

   1. Was the defendant negligent 

   2. Was plaintiff contributorily negligent

   3. Did defendant have last clear chance to prevent harm - if D had the last clear chance to avoid the injury (from P’s negligence), then P can still recover.

      1. must be proven by plaintiff

Comparative fault (McIntyre Rule)

McIntyre Rule

1. Pure - always recover damages not caused by self

2. Modified - recover in proportion only if

   1. Contributory negligence doesn’t exceed the defendants negligence (50%)

   2. Contributory negligence is less than defendants negligence (49%)

Comparative fault Slight/gross

1. P’s negligence must be ‘slight’ in comparison to D’s negligence to recover.

   1. Gut check/judgment call.

Implied assumption of the risk requires:

1. Knowledge of risk magnitude 

   1. Inferred knowledge = Logically we can infer you had actual knowledge

      1. Schott v. South Dakota Wheat Growers Assoc., the fact that this guy grew sunflowers was not enough to infer that he had knowledge about sunflower herbicides

2. Voluntary

Express assumption of the risk (Look to exculpatory clauses)

1. Exculpatory clause enforceability requires:

   1. Fit 

      1. Is it even relevant

      2. Is it clear and unambiguous

   2. Enforceable - Public policy?

      1. Intentional

      2. Equal bargaining power

      3. Public interest

Federal/state

1. Ministerial - Government is liable

   1. Cop didn’t read the handbook

2. Discretionary - Government isn’t liable

   1. Decision to focus on violent crime

Municipalities 

1. Government

   1. Ministerial - Government is liable

   2. Discretionary - Government isn’t liable

2. Proprietary - Government is liable

   1. City pool

Fencing in

1. Look at the defendant's behavior

   1. If they fenced in the animal, no strict liability

      1. If the fence wasn’t high enough, strict liability may still apply

   2. If they failed to fence in the animal, strict liability applies

Fencing out

1. Look to plaintiff’s behavior

   1. If they fenced out animals, and it gets through, strict liability applies

   2. If they did not fence out animals, no strict liability

Intrusions

Intruding (trespassing) animals (doesn’t apply to cats and dogs)

1. Fencing in

2. Fencing out

3. Strict Liability (some states apply this to all intrusions)

4. Negligence (applies like negligence generally)

Domestic animals

Strict liability when you have reason to know of your animal’s dangerous propensity

Wild Animals

Strict liability always

Applies to lions and tigers and stuff. What is considered wild will depend on the jurisdiction

You have to have possession of the animal, it can’t just be on your property for some reason

Strict Liability Scenarios

1. Respondiat Superior

2. Animals

3. Unnatural Use of the land

4. Abnormally dangerous activities

Unnatural use of the land

1. Most american courts interpret this as meaning to bring things from other areas into a specific area (Blackburn approach)

   1. Bringing a bunch of water to build a reservoir

2. Also interpreted as using an area for a different purpose than what it is generally used for (Cairns approach)

   1. Building a reservoir in a space used for mining

Abnormally dangerous activity factors

1. High degree of risk of harm

2. Whether the harm would be great 

3. Inability to eliminate the risk through the exercise of reasonable care

4. The extent to which the activity is uncommon

5. Inappropriateness of the activity for the location 

6. The extent to which the activity brings value to the community

Defenses to Strict Liability

1. Not the type of harm the activity was made strictly liable for (Tossing Rocks vs. Killing Minks)

2.  acts of god (Hurricanes)

   1. If something is plainly beyond the capacity of anyone to anticipate it could be considered an act of god.

3. Plaintiff’s own fault (assumption of the risk)

Plaintiff’s own fault requirements

1. Knowledge 

2. Voluntary

Respondeat Superior

i. Employers are liable if:

1. The employee’s actions were within the scope of employment

2. The tort was foreseeable given the nature of the employees duties

ii. Employers are generally not liable for:

1. Acts done purely for personal reasons [frolic]

a. Businesses are liable for slight deviations [detours] but not for frolics

2. Intentional torts unless related to employees duties [bouncer at a club]

3. Coming and Going from work (coming and going rule)

Independent contractors:

TEST:

1. Independent contractor does the work on their own time, in their own way, and under no one’s directions but their own, so that the one who selected the contractor has no control or right of control over the manner in which it is done.

Apparent Authority (employers liable for contractors when…)

1. Holding out, meaning the principal represents the agent as having authority, and

2. Reliance, meaning the plaintiff had awareness of these representations

ii. Can be extended to hospitals if

1. The hospital holds itself out as a provider of emergency medical care to members

of the community and

2. The plaintiff looks to the hospital, rather than a specific doctor, for care and relies

on the hospital to select the appropriate personnel.