Torts

prima facie

What is needed for the Plaintiff to prove the claim

Necessary Elements of a Claim

Battery Elements

1. D intends to cause H/O contact

2. H/O contact occurs

First Element-Battery

D intends to cause H/O contact

Intent Definition

"Knowledge to a substantial certainty"

"Purpose/Desire/Motive to bring about a result"

Single Intent Jurisdiction

D Intents ONLY Contact

Dual Intent Jurisdiction

D intends contact AND intends contact that is harmful

Second Element-Battery

H/O Contact occurs either directly or indirectly

Harmful Contact

Any physical impairment of the condition of another's body, physical pain or illness

Offensive Contact

offends a reasonable sense of personal dignity

Tort

Civil cause of action that seeks to right a wrong

Tort Pathway

Pleading --> Discovery --> Motion to File for Summary Judgment --> Trial --> Entry of Judgement --> Appeal

Intentional Torts

Battery, Assault, False Imprisonment, Intentional Infliction of Emotional Distress, Trespass

Must have intent

Assault Elements

1. D intended a H/O Contact OR D intended a reasonable imminent apprehension of such contact

2. Reasonable and imminent apprehension of such H/O contact occurs

First Element-Assault

D intended a H/O Contact OR D intended a reasonable imminent apprehension of such contact

Second Element-Assault

Reasonable and imminent apprehension of such H/O contact occurs

Imminent Apprehension

Has to be soon and timely, with D giving a timeline

Reasonable Apprehension

"One that would normally be aroused in the mind of a reasonable person"

False Imprisonment Elements

1. D's intention to confine P within the boundaries fixed by D

2. D's actions (Directly or Indirectly) resulted in P's confinement

3. P is conscious of the confinement OR harmed by it

First Element-False Imprisonment

D's intention to confine P within boundaries fixed by D

Second Element-False Imprisonment

D's actions (Directly or Indirectly) resulted in P's confinement

Third Element-False Imprisonment

P is conscious of the confinement OR is harmed by it

Confinement

Must be within boundaries fixed OR created by D and must be complete

No reasonable means of escape

Shopkeeper's Defense

"When a merchant reasonably believes that another has stolen or is attempting to steal property, that merchant has legal justification to detain the other in a reasonable manner and for a reasonable time to investigate ownership of the property."

Elements of Shopkeepers' Defense

-Reasonable Belief

-Reasonable Manner

-Reasonable Period of Time

Transfer of Intent

D intends to commit intentional tort against P1 but instead

-Commits different intentional tort against P1

-Commits the same intentional tort against P2

-Completes a different intentional tort against P2.

Trespass to Land elements

1. P owns or has exclusive possessory interest in land

2. D intentionally acts, causing physical invasion or failure to leave P's land (intent to enter land)

First Element-Trespass to Land

P owns or has an exclusive possessory interest in land

Second Element-Trespass to land

D intentionally acts, causing a physical invasion OR failure to leave the land of P

Intent for Trespass to Land

To be at the place on the land where the trespass occurred

Trespass to Chattels Elements

1. D intentionally interferred with P's right of possession of the chattel

2. D dispossess(Takes) or intermeddles (Uses) P of the chattel(Non-Land Property) without permision

First Element-Trespass to Chattel

D intentionally interfered with P's right of possession of the chattel

Second Element-Trespass to Chattels

D dispossess(Takes) or intermeddles (Uses) P of the chattel(Non-Land Property) without permission-Has to be a claim-Kaeprick v Sears

Can be:

Disposses(Takes) P of chattels-Kaeprick v Sears ,OR

The Chattel is impaired as to its condition, quality, or value-Kaeprick v Sears, OR

P is deprived of the use for a substantial time, OR

Harm is caused to P or the chattel- Kaeprick v Sears,

Conversion Elements

1. D intentionally committed an act

2. D permenently deprives P of the possession/Exercises control of P chattel

OR

2. D intefering with P's chattel in a manner so serious as to deprive P of the use of chattel

First Element-Conversion

Defendant intentionally committed an act

Second Element-Conversion

2. D permenently deprives P of the possession/Exercises control of P chattel

OR

2. D intefering with P's chattel in a manner so serious as to deprive P of the use of chattel

Elements of Intentional Infliction of Emotional Distress

1. D's intentionally or recklessly

2. D Engaged in OUTRAGEOUS CONDUCT

3. D caused P SEVERE EMOTIONAL DISTRESS

Constitutional Rights Defense

Overrules IIED

First Element-IIED

D intentionally or recklessly

Second Element-IIED

D engaged in OUTRAGEOUS CONDUCT

Third Element-IIED

D caused SEVERE EMOTIONAL DISTRESS

OUTRAGEOUS CONDUCT

"Causing the common man to yell 'Outrageous'"

SEVERE EMOTIONAL DISTRESS

Distress so severe that no reasonable person can be expected to endure it.

Doesn't need a doctor diagnosees

Does need a longer period of time, conduct afterward

Can't Transfer

IIED

Affirmative Defenses

Even if Prima Facia elements are met, this information from D negates the case

Four Types of Defenses for Intentional Torts

Consent, Self Defense, Defense of Others, Defense of Property

Consent Defense

P allowed D to commit an intentional tort

Elements of Consent Defense

Can be spoken or implied by conduct

Can be withdrawn and must be outwardly withdrawn

Only limited to what was consented to and nothing more

P must not be frauded by D

Self Defense

D was entitled to right to protect oneself from being a victim of intentional tort (DOESN'T APPLY AFTERWARD)

Elements of Self Defense

1. Force must be proportional to threat and harm

2. Deadly force can only be used when D has a reasonable belief that such force is necessary to prevent bodily injury

3. Duty to Retreat unless in the home

Deadly Force

Unjustified when attack is over. Permissable when D has a reasonable belief that such force is necessary to prevent bodily injury

Defense of Others

D can cause proportional harm to plaintiff at the interest of others

Not applicable if other's can defend themselves

Defense of Property

D was protecting property rights when commiting an intentional tort

HAVE TO USE REASONABLE FORCE

NO DEADLY FORCE

Recklessly

Knows the risk and still continues-Restatement

Negligence Elements

Duty —> Breach —> Cause —> Damage

In order for P to show the D was Negligent the P must show the D owed a Duty to the P, the D breached that duty, the D actions in breaching that duty were the factual and proximate cause of damages D suffered

Duty Element

D owed P a Legal Duty of Reasonable care

Duty of Reasonable Care Elements

Reasonable person of ordinary prudence-under the circumstances.

Reasonable Person of Ordinary Prudence

Knows all the Risk of Harm from the conduct in question

Knows only risk that the defendant was actually aware of at the time/can’t be held liable in hindsight

Know only those risk that a reasonable persons and not specifically D(Can’t go backwards in standards)

COULD BE ALL OF THESE OR SOME

Under the Circumstances

Based on what the community should know

Not an excused for poor judgement

Physical disability is expected but they must use all possible forms of aid to recover

Mental Disability are found fully liable

Children can be held to adult standard when doing adult things OR dangerous things. Otherwise they are held to the standard of their age

Extraordinary Dangerous Acticities-Adjusting Reasonable care to demand greater care

Sudden Emergenecy-Hows a reasonable person would act in emergency

Extraordinary Dangerous Activities

Adjusting Reasonable care to demand greater care

Sudden Emergency Doctrine

How a reasonable person would act in emegency

If person wasn’t negligent beforehand nor did he cause emergency then will usually be excused

Breach Element

D Breached that Duty-P needs to prove Duty was breach

5 Ways to show Breach

Learned Hand

Negligence per Se

Customs

Res Ispa Loquitor

Reckless/Gross Negligence

Learned Hand Formula

Liability for negligence due to failure to take safety precautions exists if the burden of taking such precautions is less than the probability of injury multiplied by the gravity of any resulting loss.

B < PL = NEGLIGENT

B=Burden of Precaution/Changing to a different precaution

P=Probability of Accident

L=Magnitude of Loss

B

Burden of Precaution/Changing to a different precaution

P

Probability of Accident

L

Magnitude of Loss

Negligence per se

Violation of a Statute and thus a violation of Duty

Negligence per se elements

1. D violated a statute that prohibited certain parties from conduct

2. Statute was intended to protect against the harm from which recovery is sought

3. Victim(P) harmed by violation was part of the class of person for whom the statute is supposed to protect

First Element-Negligence per se

D violated a statute that prohibited certain parties from conduct

Second Element-Negligence per se

Statute was intended to protect against the harm for which recover is sought

Third Element-Negligence per se

Victim(P) harmed by violation was part of the class of person for whom the statute is supposed to protect

Excuses for Negligence per se

1.      Violation is reasonable because of the actor’s incapacity

2.      Actor neither knows nor should know of the occasion for compliance

3.      Unable after reasonable diligence or care to comply

4.      Actor is confronted with an emergency not due to his own misconduct

5.      Compliance would involve a greater risk of harm to the actor or other

Breach via Customs

Technically Negligence per se via non-legislative standards

Can be industry/personal

Industry Custom

Everyone in industry should know, thus duty was breached

Personal Custom

Can’t hold someone liable for higher standards than normal

Res Ispa Loquitor

Breach not having direct proof can still suceed

“Accident speaks for itself”

Res Ispa Loquitor Elements

1-Nature of a particular accident suggests that it was probably due to negligence

2-Defendants had exclusive control over whatever caused the accident-Krebs v. Corrigan.

3-P lacks direct evidence of the event relative to the information available to the D

First Element-Res Ispa Loquitor

Nature of a particular accident suggests that it was probably due to negligence

Second Element-Res Ispa Loquitor

Defendants had exclusive control over whatever caused the accident

Third Element-Res Ispa Loquitor

P lacks direct evidence of the event relative to the information available to the D

Reckless/Gross Negligence

Objectively knowing risk and subjectively ignoring them

Reckless/Gross Negligence Elements

1. Objective-D knows the risk of harm created by conduct

2. Subjective-The Precaution that would eliminate/reduce the risk involves burdens so slight as to render person’s failure to adopt the precaution a demonstration of their indifference to the risk

First Element-Reckless/Gross Negligence

OBJECTIVE-D knows the risk of harm created by the conduct

Second Element-Reckless/Gross Negligence

SUBJECTIVE-The Precaution that would eliminate/reduce the risk involves burdens so slight as to render person’s failure to adopt the precaution a demonstration of their indifference to the risk

Risk of Harm

High probability that a substantial harm will occur

3rd Element of Negligence

D’s Negligence was the Cause(Causation)

Types of Causation

Factual and Proximate

Factual Cause

Cause-in-Fact

Physical connection between D’s conduct and the harm P suffered

Two was to show Factual Cause

But For Test

Alternatives to “But For” (Multiple Sufficient Independent Cause, Alternative Liability, Market Share)

“But for” Test

But for D’s actions P would have not gotten Hurt

Alternatives to “But For”

Multiple Sufficient Independent Causes

Alternative Liability

Market Share

Multiple Sufficient Independent Causes

Two similarly acting tortfeasors where only on of them could have caused the harm

Each Tortfeasor is individually responsible for the entire damage from their joint concurrent acts of negligence

Alternative Liability

Plaintiff can’t identify harm among multiple possible tortfeasors

Elements of Alternative Liability

Has to be multiple defendants committing tortious acts

All Tortfeasors engaged in similar conduct

P named all of the tortfeasors to the actions

1st Element of Alternative Liability

Has to be multiple defendants committing tortious acts

2nd Element of Alternative Liability

All Tortfeasors engaged in similar conduct

3rd Element of Alternative Liability

P named all of the tortfeasors to the actions

Market Share Liability

Liability is determine via market share sold (Needs to be a substantial percentage aka > 10%)

Proximate Cause

“Will we hold this person legally liable”

The proximate cause of an injury is that which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces an injury, and without which the injury would not have occurred

“What would a person of ordinary prudence say to D when he is about to commit the act?”

Tests for Proximate Cause

Direct Cause

Foreseeability

Substantial Factor