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Table of Contents:
• Intentional Torts
o Battery
o Trespass
o Conversion
o False Imprisonment
o Assault
o Outrage/IIED
o Privileges (self/property, private necessity)
• Unintentional Torts
o 2) Breach of Duty
Negligence
• Reasonable Person Measures (LH, custom)
• Design Defects
• Failure to Warn
• Res Ipsa Loquitur
Strict Liability
• Trespassing Animals
• Non-Natural Uses of Land/Escaping Things
• Abnormally Dangerous Activities
• Respondeat Superior
• Manufacturing Defects
• Defective Food
o 4) Defenses
Contributory Negligence
Pure Comparative Negligence
Modified Comparative Negligence
Express Assumption of Risk
Primary Assumption of Risk
INTENTIONAL TORTS CHECKLIST
o 1) Action (voluntary)
Insane action is not involuntary (Polmatier)
Instinctual action/fight of flight is involuntary (Laidlaw)
o 2) Intent (actual or transferred or constructive)
Accidents do not constitute intent (Knight)
Substantial certainty that action would lead to harmful or offensive contact is
constructive intent (Garrett)
Aiding and abetting can constitute transferred intent (Keel)
• Note: TI can arise w/o A&A
o 3) Harmful or Offensive Contact (reasonableness test versus subjective standard)
Majority rule: Objective, reasonable person standard defines what is offensive,
given a context; egg shell skull (take plaintiff as you find her) (Vosburg)
Minority rule: Subjective standard, based on plantiff's individual conception of
harmful or offensive contact (White)
o 4) Damages result
o Defenses: Consent
Consent to surgery only valid for specific procedure (Mohr) and for specific
person (Grabowski), unless it is an emergency
Consent is not vitiated when P is touched exactly the way he consented
(Brzoska/HIV)
Fraud can vitiate consent, but only when it is at the core of that consent.
(Brzoska--no vs Neal/adultery --yes)
o 1) Volitional act by D
o 2) Physical invasion of land in possession of P
Can be effected by a thing or agent of D
• (Pegg, p. 33, L for hunting dogs; analogous to Garratt)
Can result from failure to leave land (if consent revoked)
Can result from failure to remove from the land a thing which D is under a duty
to remove (irrespective of whether harm is caused)
• Heightened standard for personal property (Van Alstyne – L for failure
to remove pellets)
o 3) Intent by D
Majority rule is strict intent: only if D intends to be on P’s land, whether D’s
presence is based on mistake, ignorance, or otherwise, he is liable for trespass
• Intent must be reasonably connected to actual intrusion: Malouf, p. 34 –
NL for golf course.
Exception: substantial certainty that act would lead an agent or thing to trespass
(Pegg, analogous to Garrett – cf. Malouf, where probability much lower).
• See also Van Alstyne - Roin thinks this is stretching intent too far.
o 4) Causal relationship
o Defenses:
Consent to entry (conditional, can be revoked)
Unintentional entry (a mistaken, but intentional, entry is no defense)
o 1) Volitional act intending to confine the other/ 3rd person within boundaries fixed by
the actor
If intention to confine is not present, actor is not liable for a merely transitory or
otherwise harmless confinement.
• BUT Reckless or negligent act causing false imprisonment can also
result in liability when serious harm results.
D cannot be liable for false imprisonment when only act was providing
information to police, who consequently confined P (Baggett stek up)
o 2) Act directly or indirectly results in such a confinement of the other/3rd person
Confinement must be complete (if reasonable escape exists, other must know of
it for D to have defense)
Restricting entry is not confinement (as opposed to restricting exit)
Confinement may be by actual or apparent physical barriers (i.e. taking away
someone’s crutches)
o 3) The other/3rd person is conscious of the confinement or is harmed by it
Need not be harmful if person is conscious of it
D need not be conscious of it if harmed by it
o Defenses:
Assent: even if retroactive, can vitiate false imprisonment claim. (Peterson, p. 56
- consent after 3 days of resistance)
• Assent must be volitional/free of duress (Eilers, p. 58 -harsher treatment)
Citizens Arrest: depending on statute and circumstances - i.e. two innocents vs.
relative fault (Bright, p. 59, mistook for brother by bounty hunter)
• Shopkeepers generally have right to detain potential shoplifters
o Private Necessity
Preservation of human life is a core private necessity defense
• Ploof – (L where servant unmoors boat from dock in storm, where boat’s
passengers had sought refuge)
o Note: D would not have been liable for merely failing to make
land accessible to trespassers (i.e. if he had a locked gate, and
watched P drown from his balcony). Affirmative act was key.
Generally must be imminent and unpredictable necessity (not chronic) to prevail
on defense to trespass:
• Cf. Texas Midland (L for rail station owners who excluded woman) and
London Borough (NL for apartment owner who evicted homeless)
Question of “as between two innocents” – often fact-specific
• Vincent v. Lake Erie, p. 100 (NL for trespass b/c privileged – boat owner
didn’t remove boat after K period b/c of storm – but L for damage to
dock even though justified under single owner calculation)
• Rossi v. DelDuca, p. 99 (L for landowner whose dogs bit trespassing
girls, who were privileged b/c of preservation of life grounds)
o Cf. Woodbridge – much stronger privilege claim
• DUTY OF CARE
o Duty arises when affirmative conduct creates risk of harm to others (RS3 Torts #7, p.
218)
Introducing something into stream of commerce constitutes affirmative act
Duty for good samaritan / taking charge of helpless IF act initiated AND:
o Failure to exercise care increases risk of harm; OR
• Cf. U.S. v. Lawler, p. 231 (L for Coast Guard which dropped
woman from helicopter); with Frank v. U.S. (NL for Coast Guard
when man fell off boat in midst of rescue attempt – risk already
there)
o Harm is suffered due to reliance on that effort (RS 323).
• Ocotillo v. Superior Ct., p. 233 (L for “rescuers” who promise
golf course to drive drunk golfer home, but later give him the
keys)
• O’Neill v. Montefiore (L for ER doctor who told patient to “come
back at 8” for treatment – affirmative act created reliance)
o But see Hurley v. Eddingfield, p. 230 (NL for family
doctor who refused to treat patient in emergency)
Duty for certain special relationships (RS 315) – good position to prevent harm
o Right to protection (i.e. common carriers, ships)
• Must be within scope of responsibility: Cf. Brosnahan v.
Western Air, p. 237 (L for falling bag in airplane) with Boyette v.
TransWorld, p. 238 (NL for airline when accident occurred
within airport)
o Duty to control 3rd person
• Must be a specific, serious threat which outweighs social
importance of nonaction: Cf. Tarasoff v. Cal, p. 246 (L for
psychotherapist who failed to disclose murderous intent of
patient) with Thompson v. Alameda, p. 246 (NL for county which
released juvenile offender)
• Applies to landlord-tenant relationship – Kline v. 1500 Mass Ave,
p. 247 (L for landlord who knew of crime trend and could have
prevented with doorman – but consider powerful economic
counterarguments)
• Generally no duty for police – strong policy reasons for not
forcing them to prioritize actions
• BREACH OF DUTY
o Negligence
o Basic Scope
• Did you fail to take precautions that a reasonable person would
have?
• Restatement 283, p. 122: Unless a child, standard is that of
“reasonable man under like circumstances”
• Mental defects are no defense – Vaughan, p. 125
o Ex.: duty of care to obviously mentally impaired person
– Lynch (L for thresher injury), p. 129
• Typical person in community, given time and place, is RP.
o Weirs (NL for town in covered bridge), p. 129
• Physical defects – RP judged relative to those w/ similar defects
o Kerr (L for deaf man on tracks)
o Davis (NL for blind man on street), p. 134
• Child limitations
o Dunn (NL for six year old swinging stick), p. 139
o Custom measure
• Might be evidence of reasonable person’s calculation, but not
absolute – TJ Hooper, p. 159 (L for tug company which didn’t
carry working radio – clearly negligent under Hand F.)
o But see Ellis, p. 160 (NL for railway which didn’t issue
mask; no such companies issued masks, while at least
some tugs used radios in TJ)
• Importance of custom is context-specific:
o Inherently dangerous usage makes custom less important
• MacDougall, p. 161 (L for power company)
o Contractual relationship makes custom more important
• Rodi Yachts, p. 162 (implication that custom is
less important w/r/t 3rd parties)
o Medical malpractice makes custom determinative (juries
cannot intuit the reasonable person standard):
• National standard with some allowances –
Brune, p. 165
• Modified locality rule – Gambill, p. 166
• Strict locality rule – Small (antiquated)
• Restricted to medical “functions” – Wills
Memorial, p. 167 (NL for hospital that didn’t
protect patient)
o Basic requirements:
• Sale/distribution of product must be within D’s primary business
o See Magrine, Keen, Peterson, et al
• Product must have alleged design defect (or lacked proper
warning) when it left D’s possession
o Design defects:
• Dominant test: Risk/utility measure
o Do the benefits of design outweigh the risks?
• Jury often must be able to show that a
reasonable alternative design would have
lowered risk to argue no. McCarthy, p. 490 (NL
for talon bullet mfr)
o Even when a particular feature is safest in view of all
potential risks, liability can be found if it is inferior in a
particular context – Dawson v. Chrysler, p. 482 (L for
crumple zone)
• Cf. Dreisenstok v. VW, p. 490 (NL, safety risk is
obvious and essential to particular purpose of
design)
o Must consider whether product is defective as a whole or
whether certain elements are defective. Mitigating Q’s:
• What if particularly dangerous feature is also
providing benefits? Bunn-o-Matic, Liebeck (NL/
L for hot coffee cases)
• What if entire product is “defective” because of
its intended use?
• Minority test: Consumer expectation measure
o If more dangerous than most consumers would expect, it
is defective – akin to implied warranty. Kinda circular.
o Green v. S&N, p. 487 (NL for latex glove allergy)
• Exception: Learned intermediary
o Most jurisdictions only require that drug companies
apprise physician of risks, except where direct marketing
happens
o Cf. Brooks, p. 506 (NL for drug company) with Wyeth,,
p. 508 (L for drug co which marketed directly to
consumers)
Res ipsa loquitur – accident speaks for itself (shift burden of proof in
negligence)
o Three basic requirements: (p. 200)
• (1) Accident
• (2) Defendant had exclusive control over instrumentality causes
(unless policy reason, such as “conspiracy of silence”, otherwise
dictates)
o Larson v. St. Francis Hotel, p. 195 (hotel cannot be held
to RIL for chair falling out of window – joint control
with guest)
o Wolf v. American Tract, p. 213 (no RIL b/c no
conspiracy of silence between contractors and building
owners)
o But see Ybarra v. Spangard, p. 208 (hold medical team
liable for malpractice under RIL b/c of conspiracy of
silence)
• (3) In ordinary course of events, with D using ordinary care,
accident would not have occurred.
o Accident itself becomes evidence of negligence (b/c)
such accidents rarely occur when due care is exercised.
• Within cases of accidents, what is the probability
that accident was caused by negligence?
o Conditional, not absolute, probability is
what matters – Wilson v. Stilwill, p. 198
• Where more safety features, greater potential for
RIL, paradoxically – “expected rate of
compliance is high relative to normal rate of
unavoidable accident”
o Cf. Haasman v. Pacific Alaska, p. 204
(no RIL for airplane) with Walston v.
Lambertsen (RIL for boat)
o Reverse burden of proof, create rebuttable presumption
that D was negligent
• Byrne v. Boadle, p. 192 (flour bags falling is
presumptively negligent)
• But see Combustion Eng. v. Hunsberger, p. 193
(minor things falling at construction site not
presumptively negligent)
• But see Brauner v. Peterson, p. 197 (cows will
escape even with due care)
o Evidentiary concerns (risk of “pocket of immunity”)
heighten need for RIL
• Judson v. Giant Powder Co., p. 201 (dynamite
factory explosion)
o Strict Liability:
Defective food
o SL only where harm caused by foreign (not natural) additions
• Mexicali Rose, p. 477 (no SL where P swallowed bone in
enchilada)
• CAUSATION – need both “in fact” and “proximate” (and balance story with claim for wrongful
conduct)
o Cause in fact (but for / ex post): harm probably would not have occurred but for the
wrongful act
Dominant test: Did background risk double as a result of D’s action?
o NY Central v. Grimstad, p. 308 (NL for railroad which failed to equip
barge properly; not enough evidence to say that lack of buoy probably
caused death)
o Cannot recover if background risk > 50% -- potential pocket of immunity
Minority test: Loss of chance: What percentage of final risk was caused by D’s
action?
o Herskovitz v. Group Health, p. 317 (reversed SJ where background risk
was already greater than 50%, but D’s action reduced survival risk to
some extent)
o Allows for commensurate recovery in any case where D increased risk
o Depends on having good numbers and relative certainty in causation
• More likely to be applicable in medical cases than in Grimstad
• But see Dumas v. Cooney, p. 326 (finding that Grimstad rule
produces less statistical errors than loss of chance, even in
medical case)
• DEFENSES
o Should we enforce waivers where agents give up their right to sue for negligence?
Why should we disallow waivers? (Look at test)
• Information barriers may undermine integrity of decisions.
• Even if we had information, we’d screw up the calculations (paternalistic
view)
• Free rider problem.
• Bargaining power disparities
• Unclear if people understand what they are contracting to.
Why would people want to contract out of right to sue?
• Negligence system may be so expensive to administer (i.e. attorneys)
relative to its payouts (either in damages or in deterrence), that people
might be better off if they could contract out.
• Individuals may have adequate coverage, be less vulnerable, or value
their safety/interests less than the average person (on whose risk
thresholds the negligence system is based)
• Presumption that if someone agreed to a contract, they felt it was in their
interests.
1. Should the law impose duties on strangers to rescue one another in some circumstances (p.
224-7)?
a. Ames – practical difficulty in creating good Samaritan legis would be in drawing the line
i. Suggestion: one who fails to interfere to save another from impending death or
great bodily harm, when he might do so w/ little or no inconvenience to himself,
and the death or great bodily harm follows as a consequence of his inaction, shall
be punished criminally and shall make compensation to the party injured or to his
widow and children in case of death
b. Epstein – difficult to set out in principled manner the limits of social interference w/
individual liberty; slippery slope problem
i. “why should our autonomy or freedom not to rescue weigh more heavily in law
than a stranger’s harms and the consequent harms to people with whom she is
interconnected?”