Core Rules: Torts

What three elements are common to all intentional torts?

voluntary act, intent of particular outcome, and occurrence of a particular type of outcome

battery

defendant causes harmful or offensive contact with the person of another and acts with intent to cause contact or apprehension of contact

When is contact deemed “offensive” for battery claims?

• person w/ordinary sensibility would find it offensive;

• victim unaware;

• plaintiff hypersensitive and defendant knows

When does transferred intent apply?

1. different tort/same person;

2. same tort/different person; OR

3. different tort/different person

For battery, does contact need to be direct?

No.

assault

act that intentionally causes reasonable apprehension of imminent harmful or offensive bodily contact

For assault, is bodily contact required?

No.

When may words suffice as assault?

defendant imminently able to carry out threat and takes action designed to cause victim’s apprehension

intentional infliction of emotional distress (IIED)

intentional or reckless extreme and outrageous conduct causing severe emotional distress

For IIED, what constitutes “extreme and outrageous”?

conduct exceeding the limits of human decency

IIED: 1A limit

Public figures must show false statement of fact with actual malice.

IIED: liability to related bystanders requirements

immediate family member present at time of conduct AND contemporaneous perception of conduct

false imprisonment: elements

1. intent to confine/restrain in fixed boundaries;

2. action/inaction directly results in confinement; AND

3. plaintiff aware of or harmed by confinement

false imprisonment: confinement methods

• physical barriers

• force

• invalidly invoking legal authority

• duress

• refusal to provide safe means of escape

For false imprisonment, must the confined area be small and stationary?

No.

false imprisonment: intent

purpose of confinement OR knowledge that confinement is substantially certain

Can a defendant be liable for false imprisonment if the confinement was due to their negligence?

No.

Does transferred intent apply to false imprisonment?

Yes.

actual/express consent

Defendant could have reasonably believed that the plaintiff consented.

What are the three ways in which a defendant can intentionally interfere with a plaintiff’s right to possession of personal property?

• dispossession

• use/intermeddling

• damage

For trespass to chattels, what kind of intent is required?

only the intent to do the interfering act

For trespass to chattels, is mistaken legality a defense?

No.

For conversion, is mistake of law or fact a defense?

No.

trespass to chattels/conversion: seriousness of interference factors

• duration/extent of interference

• severity of property damage

• defendant’s good faith

• plaintiff’s expense/inconvenience

conversion

intentional act causing serious and substantial interference with or destruction of personal property

What are the remedies for conversion?

full value, recovery of property itself, or losses due to taking

trespass to land: intended consequence

physical intrusion onto land

trespass to land: required intent

to make intrusion

Does transferred intent apply to trespass to land?

Yes.

Does trespass to land need to cause harm or damage to be tortious?

No.

For trespass to land, what must intrusion be?

tangible

Who can sue for trespass to land?

anyone in possession of the land

private nuisance

activity that substantially and unreasonably interferes with another’s use and enjoyment of land

negligence standard of care: physical characteristics/disability

modified to reasonable care of person with like characteristic

negligence standard of care: children

reasonable child of similar age/intelligence/experience OR adult standard if engaged in adult activities like driving

res ipsa loquitor elements

Accident does not ordinarily occur in the absence of negligence AND accident caused by instrumentality in defendant’s control.

general rule for actual causation

“but for”

When is the substantial factor test used?

• multiple causes

• loss of chance

• multiple tortfeasors and unclear which one caused harm

pure comparative negligence

Plaintiff’s recovery is reduced by their percentage of fault.

modified comparative negligence

If the plaintiff is more at fault than the defendant, the plaintiff CANNOT recover.

strict liability rule: abnormally dangerous activities

Defendant is strictly liable for injuries/property damage, regardless of precautions taken.

strict liability: abnormally dangerous activity factors

• foreseeable and highly significant risk of harm even if due care taken

• severity of resulting harm

• appropriateness of activity’s location

• activity’s value to the community

strict liability rule: wild animals

Defendant is strictly liable for harm rising from the dangerous propensities of a species not customarily kept in service of humankind.

strict liability: trespassers and wild animals

Defendant will NOT be held strictly liable for harm.

strict liability rule: domestic animals

Defendant is strictly liable if they know or have reason to know the animal has dangerous propensities.

strict products liability: general elements

1. defective product;

2. defect existed when product left defendant’s control;

3. defect caused plaintiff’s injury when product used in a foreseeable way; AND

4. defendant is a commercial party in the business of selling the product

manufacturing defect elements

deviated from intended design and did not conform to manufacturer’s own specifications

design defect: consumer expectation test (majority view)

product less safe than ordinary consumer would expect

design defect: risk utility test

reasonable alternative design would have prevented risk

inadequate warning elements

foreseeable risk not obvious to ordinary user AND steps taken to warn were insufficient

learned intermediary rule

The manufacturer of a prescription drug must warn the prescribing physician of risks.

strict products liability: contributory negligence defense

may not bar plaintiff’s recovery

strict products liability: comparative negligence defense

Plaintiff’s own negligence may bar recovery.

strict products liability: assumption of risk defense

no recovery if plaintiff knew risk and voluntarily chose it

strict products liability: misuse/modification/alteration defense

manufacturer liable if foreseeable

battery: single-intent (default)

Defendant had knowledge or substantial certainty of contacting another’s person.

For battery, is there a minimum threshold for harm?

No.

IIED: extreme/outrageous factors

1. parties’ relationship

2. whether defendant knew and exploited plaintiff’s sensitivities

3. defendant’s motive

4. whether conduct was repeated/prolonged

Does transferred intent apply to IIED?

No.

For IIED, what must a plaintiff plead and prove?

actual harm

For IIED claims, may extended periods of anxiety or sleeplessness constitute severe emotional distress?

Yes.

When may a court find implied consent for battery?

if it was an ordinary contact of daily life

implied consent: emergency doctrine elements

1. necessary to prevent/reduce risk to plaintiff’s life;

2. necessary for defendant to act immediately; AND

3. defendant has no reason to believe consent would not have been given.

affirmative duty to act: status relationship

control and/or protect

affirmative duty to act: common carrier, innkeeper, or landowner who invites public

Keep customers/visitors reasonably safe.

affirmative duty to act: voluntarily starting rescue

Act reasonably.

affirmative duty to act: coadventurers

rescue each other if in remote location and/or doing dangerous activity

affirmative duty to act: defendant-created danger

reasonable care to manage or reduce harm

affirmative duty to act: created by statute

fact-specific

general standard of care

Defendant must act as a reasonably prudent person would under the circumstances.

emergency exception to reasonable care standard

what reasonable person in that situation would do

professional exception to reasonable care standard

reasonable for another in good standing in same profession

When does negligence per se apply?

Defendant violates a safety statute designed to protect people like the plaintiff.

negligence per se: majority view

Violation conclusively establishes breach.

negligence per se: rebuttable presumption view

Violation only presumes breach.

negligence per se: permissive view

A statute is NOT a standard of care but may be used as evidence of negligence.

Hand Formula

1. likelihood conduct will cause harm;

2. seriousness of potential harm; AND

3. burden on defendant of taking precautions to avoid harm

Does res ipsa loquitor apply to slip and fall claims?

No, unless plaintiff shows by preponderance of evidence that defendant failed to exercise reasonable care.

informed consent causation requirements

1. undisclosed risk occurred and was but-for cause of injury; AND

2. plaintiff would have refused consent for procedure if risk were disclosed

proximate causation: foreseeability test (most common)

reasonably foreseeable

proximate causation: superseding cause

unforeseeable and unconnected cause that cuts off defendant’s liability

proximate causation: scope of risk test

whether plaintiff’s injury is the kind of harm that made the defendant’s conduct negligent in the first place

proximate causation: “danger invites rescue”

Defendant’s tortious conduct that endangers another’s person or property extends to any harm to rescuers.

negligence: plaintiff’s fault defense

Plaintiff’s conduct breaches the standard of care for the plaintiff’s own protection.

abnormally dangerous activity: essential public service defense

still liable if service done in negligent manner

What is the most common defense for abnormally dangerous activities?

comparative negligence

inference-of-defect rule

If a product malfunctioned during normal use, the trier of fact is entitled to infer defect.

products liability defense: doctor selling implants/medical devices

no liability

products liability defense: reselling used product to friend

no liability

When does the statute of limitations (SoL) for strict products liability begin to run?

when the injury is discovered or should have been discovered

private nuisance: possible states of mind for defendant

• intentionally, knowingly, and unreasonably; OR

• negligently, recklessly, or abnormally dangerously

What are the possible defenses for private nuisance?

• comparative negligence

• assumption of risk

• “coming to the nuisance”