Torts Law Review: Intentional Torts, Defenses, Negligence, Causation, and Scope of Liability

Comprehensive review flashcards covering intentional torts, defenses, negligence standards, actual causation, alternative liability, proximate cause, and relational duties.

Judges

Trier of law: determine what law applies, interprets the law, and instructs the jury on the legal rules

Trier of Fact

The role filled by the jury, which determines what actually happened based on the evidence presented and applies the judge's legal instructions.

Bench Trial

A proceeding in which the judge decides both the law and the facts, occurring when parties waive their jury right, when no jury right applies, or when required by law.

Tort

A civil wrong defined as: (1) a wrongful injuring of another, (2) recognized in the law explicitly or implicitly, and (3) that generates for the victim a right of action.

Rule for Walter v. Wal-Mart Stores, Inc.

A rule stating that a judgment and compensatory award are proper where evidence of liability is overwhelming and evidence of harm provides a rational basis for the damages amount.

Assault

An intentional tort that occurs when actor A intentionally causes person B reasonably to apprehend an imminent harmful or offensive contact.

Battery

The intentional infliction of a harmful or offensive contact with the plaintiff's person without legal justification or consent.

Harmful Attack Damages Rule (Cecarelli v. Maher)

A principle establishing that a plaintiff subjected to an intentional, harmful, and wrongful physical attack may recover actual losses, special damages, and compensation for pain and suffering.

Offensive Contact Rule (Paul v. Holbrook)

A rule establishing that battery does not require proof of intent to cause or actual harm, provided the defendant intentionally made contact that an ordinary person would deem offensive.

Offensive Contact (Restatement (Third) § 3)

A contact is “offensive” if:

a) offensive to a reasonable sense of personal dignity or

b) the actor knows that the contact is highly offensive to another’s

[unreasonable] sense of personal dignity, and contacts the other

with the primary purpose that the contact will be highly offensive

Battery Intent Spectrum

A spectrum of intent standards ranging from most expansive (intent to take the action causing contact) to most restrictive (intent to produce exact consequences), with Vosburg/Cole requiring intent to engage in an offensive type of touching.

Vosburg v. Putney

In an action to recover for assault and battery, the plaintiff must show that either the intent behind the defendant’s actions is unlawful or the defendant’s conduct itself is unlawful.

Eggshell Skull Rule

A doctrine establishing that a tortfeasor is liable for all injuries directly resulting from their wrongful act, whether or not the unusual severity of the harm could have been foreseen. allows a severely injured plaintiff to recover damages from a party who caused the injury VOSBURG v. PUTNEY,

Substantial Certainty Intent (Restatement (Third) § 1)

Be careful of?

“A person acts with the intent to produce a consequence if:

a) the person acts to produce that consequence; or

b) the person acts knowing that the consequence is substantially certain to result.”

Be Careful !!

Foreseeing that x might happen ≠ knowing x will happen

  (mere awareness of risk is not sufficient to prove knowledge/intent)

Completed intentional Tort

Assault: a completed legal injury that vindicates a person's right to live in society without being put in fear of personal harm, actionable even without physical contact.

Words-Alone Rule (Brooker v. Silverthorne)

The rule that abusive or threatening words alone do not give rise to an assault action absent a special relationship, an inability to avoid future injury, or an imminent threat of bodily harm.

Vetter v. Morgan

Threatening words may form the basis of an assault claim where they are accompanied by conduct or circumstances leading to a reasonable apprehension of imminent harmful or offensive contact

Types of Transferred Intent

A four-part doctrinal framework transferring intent across torts and victims: Type I (same victim, different tort), Type II (different victim, same tort), Type III (different victim, different tort), and Type IV (property intent to personal tort).

In re White

A decision holding that under U.S. Bankruptcy Code § 523(a)(6), a debt for intentional injury is nondischargeable even if the person injured was an unintended bystander rather than the intended target.

Affirmative Defense (Who has the burden of proof?, Steps?)

A defense on which the defendant carries the burden of proof to avoid liability after the plaintiff has established the prima facie elements of an intentional tort.

Steps:

Step 1: P establishes the prima facie elements of an intentional tort

Step 2: D raises an affirmative defense and bears the burden of proving it

Step 3: If D establishes a complete defense, D avoids liability

Justification vs. Excuse

A justification establishes that the defendant's conduct was legally permissible under the circumstances, while an excuse concedes the conduct was wrongful but claims the defendant lacks personal culpability.

Koffman v. Garnett (What defense)

Consent: A plaintiff may sue for battery upon being injured while playing an organized sport if the plaintiff did not expressly or implicitly agree to the harmful contact.

Gross Negligence

Conduct characterized by an utter disregard for the safety of others, legally situated as something more than ordinary negligence but less than intentional recklessness.

Example

Imagine D is driving near a school.

- Negligence → D is distracted and accidentally fails to notice a stop sign.

- Utter disregard → D drives dangerously fast near the school without paying attention to whether children are nearby.

- Recklessness → D sees children crossing the street, recognizes the serious danger, and deliberately continues speeding toward them.

Defense: Express Consent vs. Implied Consent (which cases)

Express consent is explicit oral or written permission given by a plaintiff

(Mohr v.Williams)

Trigger Facts: Mohr consented to right-ear surgery → Under anesthesia → Surgeon discovered left ear was worse → Operated on left ear without consent → Surgery successful → Mohr alleged hearing loss and injury → Sued for assault and battery.

Rule: An absence of evil intent or negligence on the part of a defendant does not operate as a defense to the civil tort of assault and battery

Implied consent is reasonably inferred from the plaintiff's actions, gestures, and conduct under the circumstances.

O’Brien (1891): although D mistakenly inferred consent from P’s gesture, so long as D was reasonable to infer consent, no liability for inoculating her

Trigger Facts: O’Brien aboard steamship → Passengers lined up for vaccinations → O’Brien voluntarily showed arm → Told surgeon she was previously vaccinated → Never refused vaccination → Held arm up for injection → Developed complications → Sued for assault → Implied consent.

Self-Defense (Haeussler v. De Loretto)

The use of reasonable force in self-defense shields a defendant from a claim of assault and battery.

Florida's Stand Your Ground Presumption

A statutory rule establishing an irrebuttable presumption of reasonable apprehension of imminent serious harm when an intruder forcibly enters a defendant's occupied house or vehicle.

Zone 1: Occupied Home or Vehicle

- P forcibly and unlawfully enters D's occupied home or vehicle.

- D is presumed to have a reasonable fear of imminent death or great bodily harm.

- Important: Florida's statutory presumption has exceptions. Your note describing it as irrebuttable is too absolute.

Zone 2: Any Other Place D Has a Right to Be

- D has no duty to retreat, even if retreat would be safe.

- D must still satisfy the legal requirements for using defensive force.

- D generally cannot claim Stand Your Ground protection if D is the initial aggressor, unless an applicable exception restores the right of self-defense.

Defense of Property (Katko v. Briney)

A person, in protecting his property, may not use force calculated to cause death or serious bodily injury, except if there is also a threat to personal safety that justifies self‑defense.

False Imprisonment ELEMENTS

Actor A is subject to liability to other person P for false imprisonment if:

1. A acts;

2. intending to confine P;

3. A’s act causes P to be confined

[4. P is aware of her confinement]

Confinement by Threat (Fojtik v. Charter Med. Corp.)

A standard providing that threats alone constitute false imprisonment only if they inspire reasonable fear of harm in someone of comparable status within an oppressive, intimidating environment.

Shopkeeper's Privilege (Grant v. Stop-N-Go Market)

An affirmative defense that allows a shopkeeper with a reasonable belief that a patron committed theft to detain that patron reasonably for a reasonable length of time.

Common Interest Privilege

A defense to defamation protecting statements made in good faith to someone who shares a legitimate interest in the subject matter, lost if made with actual malice.

Negligence Per Se

A doctrine where the unexcused violation of an applicable statute or administrative regulation automatically establishes a breach of the standard of care as a matter of law.

Dalal v. City of New York

A decision holding that a driver's violation of an automobile safety statute by failing to wear mandatory corrective lenses constitutes negligence per se.

Administrative Regulation Rule (Bayne v. Todd Shipyards Corp.)

A rule establishing that violation of an applicable administrative safety regulation by a party with reason to know of the regulation constitutes negligence per se.

Restatement (Second) of Torts § 286 Criteria

A four-part test for negligence per se requiring that a statute protect a class including the plaintiff, protect the interest invaded, guard against the harm suffered, and prevent the specific hazard encountered.

Statutory Purpose Requirement (Victor v. Hedges)

A limitation providing that a statutory violation does not constitute negligence per se if the resulting injury was not the type of occurrence the statute was designed to prevent.

Invitee

An entrant on real property for business purposes or purposes connected to the landowner's interests, to whom the landowner owes an ordinary duty to maintain reasonably safe premises.

Licensee

A permitted entrant on land, such as a social guest, to whom the possessor traditionally owes only a duty to warn of known hidden dangers unlikely to be discovered.

Trespasser

A person entering land without permission or legal privilege, to whom the landowner traditionally owes no duty of reasonable care other than refraining from willful or wanton injury.

Scope of Permission (Leffler Case)

The principle that an entrant's classification can transition from invitee to trespasser if they exceed their physical authorization, such as exiting through a small window onto a restricted rooftop.

Attractive Nuisance Doctrine

A rule affording special protection to child trespassers injured by dangerous artificial conditions on land that the possessor knew or should have known would foreseeably attract or endanger children.

Vermont Permitted-Entrant Approach

A premises liability framework that abolishes the traditional common-law distinction between invitees and licensees, imposing a single duty of reasonable care toward all permitted entrants.

Pure Economic Loss Rule (Aikens v. Debow)

A tort principle barring negligence claims for purely financial losses that are not accompanied by physical injury to the plaintiff's person or property.

Identifiable Class Exception (People Express Airlines, Inc.)

A minority exception permitting recovery for pure economic loss when plaintiffs comprise a particularly foreseeable and identifiable class uniquely situated to suffer financial disruption from the negligence.

Special Relationship Exception (Economic Loss)

A recognized exception allowing recovery for purely financial injury arising from specialized professional relationships where reliance was intended, such as attorney-beneficiary or accountant-client relationships.

Elements of Negligence

The four required elements of an actionable negligence tort: Duty, Breach, Causation (actual and proximate), and legally cognizable Injury.

Acting Negligently vs. Tort of Negligence

The conceptual distinction where an individual may act carelessly in the abstract without committing the completed tort of negligence because no legally compensable injury resulted.

Jury Evaluation of Breach (Martin v. Evans)

The rule that breach is a mixed question of law and fact for the jury, whose supported finding of ordinary care cannot be set aside merely because the trial judge disagrees.

Lay Comprehension Exception (Walter v. Walmart)

The principle that expert testimony is unnecessary to establish professional breach when the careless conduct is obvious enough for ordinary jurors to evaluate using common knowledge.

Common Carrier Standard (Jones Case)

The heightened standard of care traditionally imposed on public carriers because passengers surrender control of the vehicle and rely completely upon the operator for safe conveyance.

Foreseeable Risk Rule (Campbell Case)

A doctrine establishing that an accident alone does not establish breach; liability requires showing that the defendant failed to exercise reasonable care against foreseeable hazards.

Objective Reasonable Person Standard (Vaughan v. Menlove)

The standard measuring breach against how an ordinarily prudent person would act under the circumstances, rejecting subjective excuses based on the defendant's personal judgment or mental shortcomings.

Tarasoff Duty

An affirmative legal duty requiring a therapist to take reasonable protective steps (such as warning an identifiable third party) when a patient presents a serious threat of physical violence.

Parental Liability Rule (Applehans Case)

The rule that parents are not automatically vicariously liable for torts committed by their children, but may be held directly liable for their own negligent supervision, instruction, or entrustment.

Negligent Entrustment

A direct negligence theory holding an individual liable for supplying a dangerous chattel (such as a vehicle) to a person they know or should know is incapable of operating it safely.

Tender Years Doctrine

A jurisdictional rule conclusively presuming that very young children (such as a five-year-old) lack the capacity to act negligently as a matter of law.

The T.J. Hooper Rule

The principle that industry custom is relevant evidence of reasonable care but not conclusive, as an entire industry may lag behind reasonable safety practices by omitting available precautions.

Professional Malpractice Standard

The standard of care governing professionals (such as doctors and lawyers) that evaluates conduct against the customary knowledge and practices of reasonably competent peers, usually proven by expert testimony.

Patient-Oriented Material-Risk Standard (Largey v. Rothman)

An informed-consent rule requiring physicians to disclose all risks that a reasonable patient in the patient's position would consider material in deciding whether to undergo proposed treatment.

Hand Formula

Judge Learned Hand's algebraic test establishing breach if the burden ($B$) of taking a precaution is less than the probability ($P$) of harm multiplied by the resulting loss ($L$), expressed as $B < P \times L$.

Res Ipsa Loquitur

An evidentiary doctrine permitting an inference of breach from the circumstances when the accident is of a kind that ordinarily does not occur without negligence and the instrumentality was in the defendant's control.

Byrne v. Boadle

The foundational res ipsa loquitur case holding that a barrel falling from a commercial warehouse onto a public street permits an inference of negligence without direct proof of the worker's specific breach.

But-For Causation

The traditional actual causation standard requiring the plaintiff to prove by a preponderance of the evidence that their injury would not have occurred but for the defendant's breach.

Loss-of-Chance Doctrine (Falcon v. Memorial Hospital)

A medical malpractice doctrine treating the lost opportunity for survival as the compensable injury when physician negligence reduced survival chances, even if baseline survival was below $50\%$.

Multiple Necessary Causes (McDonald v. Robinson)

A causation principle establishing that when two independent tortfeasors breach their duties and both breaches are necessary contributors to a single collision and injury, both satisfy actual causation.

Alternative Liability (Summers v. Tice)

A causation doctrine shifting the burden of disproving actual cause to negligent defendants when all possible tortfeasors are before the court and it is impossible to identify which one inflicted the harm.

Market-Share Liability (Sindell v. Abbott Laboratories)

A theory holding manufacturers of a fungible defective product (such as DES) liable according to their percentage share of the relevant market when the specific producer cannot be identified.

Direct Consequences Rule (In re Polemis)

A historical proximate-cause standard holding a negligent defendant responsible for all direct consequences of their conduct, even if the specific kind or extent of damage was entirely unforeseeable.

The Wagon Mound (No. 1)

The foundational decision establishing modern proximate cause, holding that a defendant is liable only for types of injury that were reasonably foreseeable results of their negligent conduct.

Superseding Cause

An intervening event or third-party wrongful act that is sufficiently independent, extraordinary, or remote that it breaks the legal causal chain and relieves the initial actor of liability.

Relational Duty Principle (Palsgraf v. Long Island Railroad Co.)

Judge Cardozo's principle that negligence is an interpersonal wrong: a plaintiff cannot recover unless the defendant's conduct breached a duty owed directly to that plaintiff or a class foreseeably endangered.

Petition of Kinsman Transit Co. (Judge Friendly Proximate Cause Approach)

A proximate cause approach holding that where the general category of property damage is foreseeable, liability may attach even if the exact mechanism of destruction (unmoored ships creating a river dam and flooding) was unexpected.

Negligence per se Elements

Statutory Violation: D violated a statute, ordinance, or regulation that establishes a standard of conduct.

Protected Class: P belongs to the class of persons the statute was designed to protect.

Protected Harm: P suffered the type of harm the statute was designed to prevent.

Causation: D's statutory violation was an actual and proximate cause of P's injury.

Damages: P suffered legally recognized harm.

DALAL V. CITY OF NEW YORK - failing to comply with a license restriction

 The violation of a statute that governs the manner of automobile operation constitutes negligence per se. violation of § 509(3)

What does negligence per se require?

• D to produce evidence justifying or excusing the violation or establishing he or she acted in due care under the circumstances

A presumption in Negligence per se can be __? Who has to do something D or P?

Presumption can be rebutted: 

• By evidence justifying or excusing the violation 

OR

• By establishing the person was acting with due care and was not negligent under the circumstances

BAYNE V. TODD SHIPYARDS CORP

The violation of an applicable administrative safety regulation by a party that had reason to know of such regulation is negligence per se

Restatement (Second) of Torts § 286

Rule: Under Restatement (Second) of Torts § 286, a court may adopt a legislative enactment or administrative regulation as the standard of reasonable care when the statute or regulation is intended to:

Protect a class of persons that includes P;

Protect the particular interest invaded;

Protect against the type of harm P suffered; and

Protect against the particular hazard that caused the harm.

Courts are divided on whether violating an administrative regulation constitutes negligence per se or merely evidence of negligence.

VICTOR V. HEDGES

No negligence per se

Violation of a safety statute does not constitute negligence per se where the statute was not designed to protect against the event that caused injury.

Under Victor v Hedges, Can a violation of a statute automatically be used as a basis for finding a breach of duty for purposes of negligence per se? 

 No, violation of a statute can be used to show breach of duty only if the injury resulted from the type of accident the statute was intended to prevent. Under state law, a person is presumed to have failed to exercise due care if his violation of a statute proximately causes injury 

The statute must:

• Injury resulting from the type of occurrence the statute was designed to prevent 

• The injured person must be one of the class of persons for whose protection the statute was adopted 

Negligence Per Se

An unexcused violation of an applicable safety statute etablishes a breach of duty as of a matter of law

Which negligence elements does negligence per se establish?

Breach. P must still establish the other req elements, including causation and damages W

What are the four requirements under Restatement (Second) 286

protected class, protected interest, kind of harm, and particular hazard

What does Restatement (Third) 14 require?

Unexcused statutory violation, protected class, and the types of accident the statute aims to prevent

What is the difference between negligence per se and evidence of negligence?

Per se establishes breach; evicdence of negligence allows the jury to decide whether breach occurred

What happened in Dall v City of NY

a driver caused a collision while not wearing the corrective lenses required by her license

What was the courts answer in Dall v City of NY

Violating a license restriction governing how a vehicle is operated can constitute negligence per se

What happened in Bayne v Todd Shipyards?

a delivery worker fell from a loading platform lacking a guardrail required by a safety regulatioW

What was the court answer in Bayne

a statutorily authorized safety regulation could establish negligence per se under the applicable law hy is vW

Why is Bayne in the protected class?

he was lawfully working on the premises even though he was not the defendants employeeW

What was the issue in Bayne

Whether violation of an admin safety reg was negligence per se or merely evidence of negligence