Torts Fifth Edition: Study Notes
Torts Fifth Edition: Study Notes
Introduction to Torts
Definition: A civil wrong between individuals, typically outside contractual agreements.
Categories:
Intentional Torts: Defendant desires a specific result (e.g., battery, assault, false imprisonment, emotional distress).
Negligence: Defendant acts carelessly without intending harm (general concept).
Strict Liability: Defendant is liable even without intent or carelessness for certain activities (e.g., abnormally dangerous activities, defective products).
Significance: Categories determine scope of liability (intentional has broadest) and damages (punitive damages more likely for intentional torts).
Exam Approach: Identify torts, analyze prima facie case, discuss defenses, and consider applicable damages.
Intentional Torts Against the Person
Intent Defined
No Intent to Harm: Intent is about causing a physical or mental effect, not necessarily harm.
Substantial Certainty: Knowing an effect is to occur counts as intent.
Transferred Intent: Intent towards one person extends to another accidentally harmed.
Battery
Definition: Intentional infliction of harmful or offensive bodily contact.
Intent: Desire to cause contact or imminent apprehension of contact.
Contact: Can be harmful or merely offensive (damaging dignity), direct or indirect.
Awareness: P need not be aware of the contact at the time it occurs.
Consent: Contact beyond consented limits can be battery.
Assault
Definition: Intentional causing of apprehension of harmful or offensive contact.
Intent: Desire to create apprehension or to cause actual contact.
No Hostility: Malice is not required.
Words Alone: Generally not sufficient; requires an overt act.
Imminence: Threatened harm must appear imminent, and D must have present ability to act.
Awareness: P must be aware of the threatened contact.
Third Persons: Apprehension must be for P's own body.
False Imprisonment (FI)
Definition: Intentional infliction of confinement.
Intent: Desire to confine or substantial certainty of confinement.
Confinement: Holding P within limits, not preventing entry.
Means: Physical force, threats, or assertion of legal authority.
Awareness: P must be aware of confinement or suffer actual harm.
Intentional Infliction of Emotional Distress (IIED)
Definition: Intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress without physical harm.
Intent: Desire to cause distress, substantial certainty of distress, or reckless disregard of high probability of distress.
Transferred Intent: Limited application, primarily to immediate family present and known to D.
Extreme and Outrageous: Conduct must be "beyond all possible bounds of decency."
Distress: P must suffer severe emotional distress, often requiring medical aid.
Constitutional Limits: First Amendment protects speech on public concern, often requiring "actual malice" for public figures.
Intentional Interference with Property
Trespass to Land
Definition: Intentional entry on P's land, remaining without right, or placing an object on it without permission.
Intent: Intent to enter the land, even if due to mistake about ownership or permission.
Particles/Gases: Knowing causation of objects, particles, or gases to enter is trespass.
Airspace: Flight below federally-prescribed altitudes that substantially interferes with use.
Trespass to Chattels
Definition: Intentional interference with a person's use or possession of a chattel.
Damage: Requires provable damage, even if temporary loss of possession.
Electronic Trespass: Harm to computer or data may constitute trespass to chattels.
Conversion
Definition: Intentional interference with P's possession/ownership of property so substantial that D should pay full value.
Intent: Intent to take possession; mistake as to ownership is generally no defense.
Distinguished from Trespass to Chattels: Severity of interference (duration, good/bad faith, harm to property, inconvenience) determines if it's conversion.
Methods: Acquiring possession, transferring to third party, withholding goods, destruction.
Intangibles: Computer files generally count as property for conversion.
Forced Sale: Successful conversion suit results in D paying full value and keeping goods.
Defenses to Intentional Torts
Consent
Express Consent: Direct agreement by P to interference.
Implied Consent: Inferred from P's conduct, custom, or circumstances (objective test).
Lack of Capacity: Consent invalid if P is a child, intoxicated, unconscious.
Consent as a Matter of Law: Implied if necessary to save P's life/health, no indication P would refuse, and reasonable person would consent.
Exceeding Scope: D not privileged if action goes substantially beyond consented scope.
Emergency: May justify extending surgery beyond consent.
Athlete's Consent: Generally extends to ordinary give-and-take of the sport, but not reckless/intentional harmful conduct beyond usual bounds.
Criminal Acts: Majority rule: P's consent is ineffective if the act is a crime.
Self-Defense
Privilege: Reasonable force to prevent threatened harmful/offensive bodily contact, confinement, or imprisonment.
Apparent Necessity: Applies if D reasonably believes a threat exists.
Purpose: Only for protection, not retaliation for past acts.
Imminence: Force for imminent harm, unless no later chance to prevent danger.
Verbal Provocation: Does not justify self-defense.
Degree of Force: Only force necessary to prevent harm; deadly force only if D faces death or serious bodily harm.
Duty to Retreat: Split among courts; Restatement allows non-deadly force without retreat, but requires retreat for deadly force outside dwelling.
Defense of Others
General Rule: Reasonable force to defend another; same rules as self-defense.
Reasonable Mistake: Courts split; Rest. 2d allows defense for reasonable mistake.
Defense of Property
General Rule: Reasonable force to defend land and chattels; verbal demand required first unless impractical.
Mistake: Protected if mistake is about necessity of force; not protected if mistake is about intruder's right to be there.
Deadly Force: Only if non-deadly force won't suffice and D reasonably believes death/serious harm will occur.
Mechanical Devices: Allowed only if D would be privileged to use similar force if present.
Recapture of Chattels
Generally: Right to use reasonable force to regain chattels wrongfully taken.
Fresh Pursuit: Privilege exists only if owner acts without unreasonable delay.
Reasonable Force: Deadly force never allowed.
Wrongful Taking: Privilege only if property was wrongfully taken.
Merchant's Privilege: May temporarily detain suspected shoplifter (brief time, reasonable suspicion, no arrest/coercion).
Necessity
General Rule: Privilege to harm P's property to prevent great harm to third persons or D herself.
Public Necessity: Interference to prevent disaster to community; no compensation needed.
Private Necessity: Prevents injury to D or D's property/third person; P must pay for actual damage caused.
Owner May Not Resist: Property owner may not resist privileged exercise of necessity.
Arrest
With Warrant: Officers generally not liable even if warrant turns out to be faulty.
Without Warrant:
Felony/Breach of Peace: Officer may arrest for offense in progress or about to be committed.
Past Felony: Officer may arrest with reasonable belief felony committed and right criminal; citizen only if felony in fact committed.
Misdemeanor: No warrantless arrest for past misdemeanor not involving breach of peace.
Reasonable Force: Only force reasonably necessary.
Deadly Force: Only to prevent felony threatening human life/safety, or if suspect poses significant threat after crime.
Justification
Generally: Catch-all defense for good reasons to exculpate D from intentional tort.
Negligence Generally
Components of Tort of Negligence
Definition: D's conduct imposes unreasonable risk, causing injury to another.
Prima Facie Case: Duty, failure to conform to standard, cause in fact, proximate cause, actual damage.
Unreasonable Risk
Generally: P must show D's conduct imposed unreasonable risk; not judged by results.
Balancing Test: Risk is unreasonable if its magnitude outweighs the utility of the act (e.g., small risk of grave harm can be unreasonable).
Warnings: Can reduce risk; failure to warn can be negligence; warning does not automatically immunize D.
The Reasonable Person
Objective Standard: What a reasonable person of ordinary prudence would do under circumstances.
Characteristics: Physical disabilities considered; mental characteristics (e.g., stupidity) not a defense; intoxication no defense; children held to standard of like age/experience (adult activity = adult standard).
Custom: Evidence of custom is admissible but not conclusive for reasonable care.
Emergencies: Standard of reasonable person in same emergency.
Anticipating Others: D may be required to anticipate others' negligence or, in special cases, criminal/intentional acts (e.g., parent controlling child, psychiatrist warning patient's victim).
Malpractice
Superior Ability/Knowledge: Must use higher level if possessed.
Professionals: Act with skill/learning commonly possessed by members in good standing.
Good Results: Not guaranteed.
Specialists: Held to standard of that specialty.
Minimally Qualified: Must meet skill level of minimally qualified member.
Novice: Same competence level as profession generally.
Community Standards: Traditionally local, many courts now national.
Informed Consent: Physician must disclose material risks of treatment.
Automobile Guest Statutes
Generally: Minority of states require gross negligence/recklessness for liability to non-paying passenger.
Violation of Statute (Negligence Per Se)
General Doctrine: Unexcused violation conclusively establishes D's negligence if statute applies to facts.
Ordinances/Regulations: Courts split on application.
Statute Must Apply: Intended to guard against kind of injury and protect P's class.
Excuse: Violation may be excused (e.g., unaware of facts, diligent attempt, confusing, greater risk).
Contributory Negligence Per Se: D may use P's statutory violation as defense.
Compliance: Does not automatically mean D was not negligent.
Procedure in Jury Trials
Burden of Proof: P bears burden of production and persuasion.
Judge's Function: Decides questions of law, including directed verdicts.
Jury's Function: Finds facts, applies "reasonable person" standard.
Res Ipsa Loquitur (RIL)
Generally: Allows inference of negligence from accident itself if no direct evidence.
Requirements:
No direct evidence of D's conduct.
Event seldom occurs without negligence.
Negligence most likely by D (e.g., "exclusive control").
Not due to P's actions.
Evidence more available to D (some courts).
Expert Testimony: Allowed in complex cases (e.g., medical malpractice).
Effect: Permits inference, allows P to go to jury (meets burden of production).
Rebuttal: General evidence of due care not usually enough for directed verdict; direct disproof of RIL requirements may be.
Typical Contexts: Airplane accidents, single-car accidents, surgery (foreign objects).
Actual and Proximate Cause
Causation in Fact
Generally: D's conduct was a "cause in fact" of P's injury.
"But For" Test: Majority method; harm wouldn't have happened but for D's negligence.
Concurrent Causes: "Substantial factor" test if two events each sufficient to cause harm.
Multiple Fault: Burden shifts to Ds if P shows fault by multiple Ds but only one caused injury (e.g., "market share" theory in product liability, "Summers v. Tice").
Increased Risk: Most courts deny recovery for future damage unless more probable than not; some allow discounted recovery.
"Indeterminate Plaintiff": Class actions sometimes allowed in toxic torts even if specific causation not proven to be more likely than not.
Proximate Cause Generally
General: Policy determination that D is not liable for all, no matter how improbable, consequences.
Foreseeability Rule: D generally liable only for reasonably foreseeable consequences.
Third Restatement: D is "not liable for harm different from the harms whose risk made the [defendant's] conduct tortious."
Judge and Jury: Judge formulates rule, acts as "gatekeeper"; jury makes factual determination if reasonable people could differ.
Unforeseeable Plaintiff: If D's conduct not negligent as to P, P cannot recover even if injured through fluke.
Extensive Consequences (Egg-Shell Skull): Once P suffers any foreseeable impact/injury, D liable for unforeseen physical consequences ("takes his plaintiff as he finds him").
General Class of Harm: Irrelevant that harm occurred in unusual manner if of same general sort that made D's conduct negligent.
Plaintiff Part of Foreseeable Class: Irrelevant that injury to particular P not especially foreseeable if P is member of class generally at risk.
Proximate Cause — Intervening Causes
Definition: Force taking effect after D's negligence, contributing to P's injury.
Superseding vs. Non-Superseding: Superseding causes relieve D of liability.
Foreseeability Rule: If D should have foreseen intervening cause or kind of harm, D's conduct is proximate cause; otherwise, superseding.
Foreseeable Intervening Causes: Almost never relieve D of liability if risk was part of what made D's conduct negligent (e.g., foreseeable negligence of third persons, crime/intentional torts).
Responses to D's Actions: "Normal" responses (escape, rescue, medical treatment aggravation) generally not superseding unless grossly careless/bizarre.
Unforeseeable Intervention, Foreseeable Result: Not usually superseding if leads to same type of harm.
Unforeseeable Intervention, Unforeseeable Results: Probably superseding (e.g., extraordinary act of nature).
Dependent vs. Independent Intervention: Dependent more foreseeable, less likely to be superseding.
Third Person's Failure to Discover: Almost never superseding; but third person's willful/negligent failure to warn after discovery may absolve D if D took reasonable steps to remedy.
Joint Tortfeasors
Joint Liability
Joint-and-Several Liability: Each D liable for entire indivisible harm if more than one proximate cause.
Modern Trend: Cuts back on joint-and-several liability, especially with comparative negligence (hybrids, pure several).
Indivisible vs. Divisible Harms: Joint-and-several only for indivisible harms.
Action in Concert: Each liable for injuries by other.
Successive Injuries: Often apportioned, but burden of proof shifts to Ds if unallocable; earlier tortfeasor may be liable for all.
One Satisfaction Only: P entitled to single recovery.
Contribution
Generally: D paying more than pro rata share may get partial reimbursement from other D.
Amount: Traditionally equal share; in comparative negligence states, proportional to fault.
Limits: No intentional tortfeasors; contribution defendant must have liability to original P.
Settlements: Settling D may get contribution (must prove co-D's liability); D2 suing settling D1 is split (traditional vs. "reduction of P's claim" rules).
Indemnity
Definition: shifting of liability from one D to another (e.g., vicarious liability, retailer vs. manufacturer).
Duty
Duty Generally
Concept: General duty of reasonable care; exceptions exist (failure to act, mental suffering, pure economic loss).
Failure to Act
No General Duty: No liability solely for failing to act (e.g., failing to rescue a stranger).
Exceptions:
Special Relationship: E.g., common carrier-passenger, innkeeper-guest, business-patron, employer-employee, school-student, landlord-tenant, custodian-custody.
Defendant's Involvement in Injury: Duty of assistance if D's conduct or instrument under D's control caused danger, even without fault.
Co-Venturers: Duty of warning/assistance between parties in common pursuit.
Assumption of Duty: Once D voluntarily begins assistance, must proceed with reasonable care; liable if dissuades others or P relies detrimentally on promise.
Duty to Control Others: If D has duty to control third persons (special relationship to P or third person).
Mental Suffering
Pure Mental Suffering: Usually (not always) no recovery without physical impact/injury.
"Tacked On" Damages: Mental distress recoverable if D causes physical injury to P's person/property.
Unaccompanied by Fear for Anyone: P witnesses accident, no fear for self or others; generally no recovery for distress (fear of "boundless liability").
P in "Zone of Danger": P witnesses accident, is in danger of immediate bodily harm; most courts allow recovery for distress.
P as "Bystander" (Close Relative): P from safety watches close relative suffer serious bodily injury; most courts allow recovery for P's distress if P perceives event contemporaneously.
"Bystander" (Non-Close Relative): Few courts allow recovery for distress.
Special Categories: Mishandling bodies, incorrect telegrams announcing death/illness, certain other unique situations.
"At-Risk Plaintiff" ("Cancerphobia"): Rarely successful for pure emotional harm without bodily harm; requires actual exposure in toxic cases, some courts require show of actual probable illness, some require "immediate" bodily harm danger.
Unborn Children
Child Born Alive: Nearly all courts allow recovery for prenatal injuries.
Child Not Born Alive: Courts split (depends on wrongful death statute defining "person").
Pre-Conception Injuries: Courts split on recovery.
Wrongful Life: Almost no courts allow child to recover; parents may recover medical expenses/distress.
Pure Economic Loss
Tacking On: If P has personal injury/property damage, economic loss can be recovered.
Standard Rule Disallows: In three-party situation (D negligently injures X, only economic loss to P), P generally cannot recover for "pure economic loss."
Rationales: Indeterminate/disproportionate liability, other means for claimants to protect themselves.
Contexts Applied: Blocking access to business, toxic torts affecting land/water without direct impact, tort against employee/employer causing economic loss to other, interruption to power/supplies.
Exceptions: P has "proprietary interest" in damaged property, public nuisance with "special harm" (qualitatively different from general public).
Some Courts Reject: Few courts reject the basic rule against pure economic losses, but rare.
Special Statutes: Overturn common-law rule for certain scenarios (e.g., Oil Pollution Act).
Owners and Occupiers of Land
Outside the Premises
Effect Outside: General "reasonable care" standard for landowner's conduct with effects outside property.
Natural Hazards: Generally no duty to remove/guard, but urban areas may differ.
Artificial Hazards: Duty to prevent unreasonable risk.
Trespassers
General Rule: Owner owes no duty to make land safe, warn of dangers, avoid dangerous activities, or protect trespasser.
Exceptions:
Constant Trespass on Limited Area: Reasonable care to make safe or warn if owner knows of frequent use.
Discovered Trespassers: Duty to exercise reasonable care for safety once owner knows of presence.
Children (Attractive Nuisance): Duty of reasonable care if owner knows children likely to trespass, condition poses unreasonable risk, child unaware of danger due to youth, utility of condition slight vs. risk, and owner fails reasonable care to eliminate danger.
Licensees
Definition: Person with owner's consent, but no business purpose (e.g., social guests).
Duty: No duty to inspect for unknown dangers; must warn of known dangerous conditions.
Invitees
Duty: Duty of reasonable inspection for hidden dangers; reasonable care to remedy dangerous conditions.
Definition: Business visitors or members of public for purposes land is held open.
Scope: Invitation defines scope; exceeding it changes status to licensee.
Duty of Due Care: Duty to inspect, warn (if insufficient, must remedy), control third persons.
Public Safety Personnel (Firefighter's Rule): Traditionally licensees, generally no duty to inspect/make premises safe for dangers causing their presence.
Rejection of Categories
Generally: Some courts (e.g., CA, NY) apply single "reasonable person" standard to all lawful visitors.
Trespassers: Most states unwilling to abolish categories for trespassers.
Liability of Lessors and Lessees
Lessee: Treated as owner.
Lessors (Landlords): Generally not liable once possession transferred.
Exceptions: Known dangers to lessor/unknown to lessee, premises open to public, common areas, lessor contracts to repair, negligent repairs, general negligence standard.
Vendors
Vendor's Liability: Generally released after property turned over.
Exceptions: Danger to one on property (if seller knows/should know, and actively concealed) or danger to one outside property (if seller concealed or created artificial condition).
Damages
Personal Injury Damages Generally
Actual Injury: Required for negligence; no nominal damages.
Physical Injury: Usually required.
Elements: Direct loss of bodily functions, economic loss, pain and suffering, hedonistic damages.
Hedonistic Damages: Most courts allow for loss of ability to enjoy life; some require consciousness of loss.
Future Damages: Recoverable for likely future harm (present value, periodic payments).
Tax: Personal injury recoveries are tax-free.
Collateral Source Rule: P recovers out-of-pocket expenses even if reimbursed by third party (modified by statute in many states; subrogation by insurers).
Mitigation: P has duty to mitigate (e.g., seek medical care, use seat belt).
Punitive Damages
Generally: Penalize outrageous conduct.
Negligence Cases: Usually only for "reckless" or "willful and wanton" conduct.
Product Liability: Frequently for known defects or reckless disregard of risk (multiple awards possible).
Constitutional Limits: Fourteenth Amendment due process limits ratio of punitive to compensatory damages.
Recovery by Spouse or Children
Spouse: Independent action for loss of companionship/sex (loss of consortium).
Parent: Recover medical expenses and loss of companionship for injured child.
Child: Some, but not most, courts allow recovery for loss of companionship/guidance for injured parent.
Defenses: Asserted against injured party generally apply.
Wrongful Death and Survivor Actions
Survival Statutes: Victim's own right of recovery continues after death (pain/suffering, lost earnings before death, medical expenses).
Wrongful Death Statutes: Allow defined group (spouse/children/parents) to recover for loss due to death (economic support, companionship/moral guidance, sometimes grief).
Defenses: Any defense against decedent applies.
Defenses in Negligence Actions
Contributory Negligence (CN)
General Rule (Common Law): P's negligence proximately contributing to injuries bars recovery.
Standard of Care: P held to same reasonable person standard as D.
Proximate Cause: CN applies only if P's negligence proximately caused injuries.
Claims Against Which Not Usable: Intentional torts, "willful and wanton"/"reckless" conduct by D.
Comparative Negligence
Definition: Divides liability proportionally between P and D based on relative fault; P's recovery reduced, not barred.
Commonly Adopted: Majority of states.
"Pure" vs. "50%" Systems: Pure (P recovers even if more negligent); 50% (P barred if negligence "as great as" or "greater than" D's).
Multiple Parties: P's recovery reduced by P's negligence only; joint-and-several liability interaction varies by state statutes (total abolition, hybrid).
Last Clear Chance: Courts split on survival in comparative negligence jurisdictions.
Extreme Misconduct by D: Most states reduce P's damages; intentional torts generally not subject.
Seat Belt Defense: Increasingly accepted; P's damages reduced for failure to use seat belt.
Imputed Comparative Negligence: Fault of one (A) imputed to another (B) to reduce B's recovery only if B would be vicariously liable for A's torts (e.g., employer/employee, not parent/child).
Assumption of Risk (AOR)
Definition: P voluntarily consented to take chances that harm will occur, completely barring recovery at common law.
Express Assumption: Explicit agreement by P not to hold D liable (exceptions: D's intentional/reckless harm, grossly unequal bargaining power, overriding public interest).
Implied Assumption: P's conduct demonstrates knowledge of risk and voluntary consent to bear it.
Knowledge of Risk: Strictly construed; P must actually know of specific risk.
Voluntary Assumption: Strictly construed; no AOR if P had no reasonable choice but to encounter known danger.
Distinguished from Contributory Negligence: AOR can be reasonable; AOR is generally a defense to reckless conduct (CN usually not).
"Primary" vs. "Secondary" Assumption: Primary (D never owed duty); Secondary (D had duty, but P's AOR dissipates it).
Effect of Comparative Negligence: Express AOR unaffected; implied AOR often merged into comparative fault analysis (reduces, not bars, recovery).
Sports/Recreation: Ordinary carelessness inherent in game covered by primary AOR; recovery only for intentional/reckless injury totally outside ordinary activity.
Statute of Limitations
Discovery Rule: May start to run when P discovers (or ought to have discovered) injury (e.g., medical malpractice, sexual assaults).
Immunities
Family Immunity: Common law (inter-spousal, parent-child) largely abolished or limited.
Charitable Immunity: Largely abolished or cut back.
Governmental Immunity (Sovereign Immunity):
United States: Suits generally allowed under Federal Tort Claims Act (FTCA), but not for