Torts 1 Outline Development of Liability based upon fault o Based upon strict liability=if you caused the harm,

, you are liable o The burden of proof (burden of persuasion) falls on the plaintiff to prove both intention and/or negligence (Brown v. Kendall: stick in the eye during dog fight) o Actions that the plaintiff could not otherwise have known about or prevented, even with extreme care, cannot constitute negligence. (Cohen v. Petty: fainted while driving)

Intentional Interference with Person or Property 1. Intenta. Definition of intent: The desire to bring about a result and the belief that the result is substantially likely to occur Can be malicious, or well-meaning/helpful Based on actions not on motives Liability for reasonably foreseen consequences, though result and damages were not contemplated Basis of tort liability (3 options) 1. Intentional conduct 2. Negligent conduct that creates unreasonable risk of harm 3. Conduct that is neither intentional nor negligent but that subjects the actor to strict/absolute liability a. Strict Liability-if you engage in abnormal or abnormally dangerous activity, strict liability should apply even without physical trespass (ex:blasting) Underling policy is the guarantee of personal protection and therefor when someone is injured, someone must be held liable b. Intent can be established in more than one way Specific Intent-willful or unlawful intention to cause consequences 1. Its called specific because you mean happen exactly what happened General Intent-setting in motion a chain of events knowing with substantial certainty a result will occur 1. should have known clause the actor should have known foreseeable consequences (ex. Garret v. Daily-pulling the chair)
Sliding Scale of Intent

Negligenc e

General Intent

Specific Intent

*When dealing with intent, you have specific intent on one side of the spectrum and on the other side you have negligence, and general intent falls somewhere in between the two. This means as the certainty of the consequences decreases you get closer to negligence. The court determines where the line is drawn distinguishing general intent from negligence by evaluating the circumstances and evidence presented in each case.

c. The following DO NOT negate or vitiate intent Age-if the child of similar age and mental state should know consequences, will be liable (Garret v. Dailywhere child pulls the chair out from under women) Mistake-Good faith mistakes, do not negate intent where the actor intended his actions (ex: Ranson v. Kitner-mistakenly shoots dog instead of wolf)

 Insanity-a mentally insane person still maintains liability for intentional torts 1. Except when they are in a mental institution and the action is against an employee of the institution 2. iii is true even when action is against employee or family member (live-in nurse hit by insane person, still liable) 3. An action may also lie against person caring for mentally ill based on negligent supervision Voluntary Intoxication does not negate intent 1. Involuntary intoxication could be a likely defense Transferred intent-where A intended on consequences for B, but actually occurred for C, still liable (Property owner throws stick at boy on shed, hits the other boy he didnt know was there) d. Doctrine of Transferred Intent If you intend to commit one intentional torts and you accomplish a different one of the intentional torts, even one varying from the intended, still liable (A means to commit an assault by throwing a stick at B, but commits battery by hitting C with the stick, liability exists) Must first establish INTENT 5 interchangeable torts that transferred intent applies to-FITBAT, False Imprisonment Trespass to Chattel Battery Assault Trespass to Land

Indirect act resulting from an intended act

e. For Intentional Torts-3 things must always be present Act-external manifestation of will (Restatement II) 1. Must be willful, volitional (ex: if someone carries A onto others property, not liable) Intent-Specific, general, or Doctrine of transferred intent Causation-Ds harm must be direct or indirect result of Ps action 2. Battery a. Definition-Battery is an act with intent to cause harmful or offensive contact to another person OR the apprehension of harmful or offensive contact AND then contact occurs. 1. Harmful Contact a. Even if act was not inspired by hostility or desire to injure (ex: practical joke) b. Bodily Harm- is any physical impairment of the condition of anothers body, or physical pain or illness c. Underlying Policy: The interest in freedom from harmful bodily contact d. Example: Intending an offensive contact, A lightly kicks B in shin, not knowing of leg disease. The slight blow aggravates disease and causes prolonged and expensive illness and permanent damage; A is liable to B 2. Offensive Contact a. Liability is based upon his intentional invasion o fthe others dignitary interest in the inviolability of his person and the affront to the others dignity involved therein b. Physical contact of either party is not required. The offensive contact can from the clothing or another object of the actor such as a bucket of water or his dog and the harm need only to be done to the clothing or objects in the defendants hand. c. Knowledge of contact is not required (sleeping beauty-kissed while asleep still battery) d. Examples: (1) A throws dirty water from his window at B is walking down the street below. A few drops fall Bs hand but cause not bodily harm. A is liable. (2) While driving, A passes B walking on side walk and intentionally drives through a puddle with purpose of splashing B. A is liable. (3) A is driving and does not see B crossing the road. B steps aside and as he does As car splashed mud in Bs face. A is not liable. b. Battery does NOT require apprehension (knowledge of the situation-like Sleeping Beauty)

c. Contact is required for battery d. Underlying Policy: Personal indignity is protected legally-this is a dignity tort Therefore physical contact is not required (ex: contact with anything intimately connected will be liable) e. Contact must be harmful or offensive-simply touching someone will not sustain (ex: touching someones back during a fire drill to get their attention and they fall down the stairs)

3. Assault
a. Definition-act with the intent to cause apprehension of harmful or offensive bodily contact on the part of the other, with the apparent ability to do so b. Underlying policy: right to be free from apprehension of imminent, harmful, or offensive contact c. Contact NOT required (ex: P swings ax at wall and misses D, still liable without actual contact) d. Apprehension required (ex: drunk reaches around desk to grab woman, even though he cannot actually reach, it appears he can and thus hes liable because he believed he was) Apprehension= reasonable belief of the possibility of imminent injury or death at the hands of another 1. If someone is overly sensitive, will not justify, only what a reasonable person would believe 2. Imminent, not as in immediate, but as in there will be no significant delay, NOT future If you are not aware of the action at the time, there is no liability (sleeping beauty) Restatement- it is enough that he believes that the act is capable of immediately inflicting the contact upon him unless something further occurs. No Doctrine of Intent-because apprehension is required, no actionable assault can occur with a third party e. It is not required to be evasive to avoid contact, so simply because you can avoid it or because the actor gives an option to remove yourself from the situation, does not negate assault. f. Words, alone, will not suffice. Must be together with actions to sustain action for assault g. The actor does not have to have the ability to carry out the threat, the other just has to have the belief that he does h. There is no requirement for inspiration by hostility or desire to offend-a joke can still sustain action 4. False Imprisonment a. An act with the intent to cause a. confinement of another within fixed boundaries set by the actor b. and then confinement occurs c. and the other is conscious of or harmed by the confinement. d. In other words: Elements are(2) The confinement is complete although there is a reasonable means of escape, unless the other knows of it. (3) The actor does not become liable for false imprisonment by intentionally preventing another from going in a particular direction in which he has a right or privilege to go. b. Underlying policy-in the interest of freedom from confinement c. Awareness: P must be conscious at the time of imprisonment (drunk guy taken outside of city, didnt remember at trial, but testimony showed he was aware at time of confinement) d. Means of escape: a. If actor knows of means of escape, he cannot intend imprisonment by closing other exits unless he believes the other person doesnt know about it (A locks B, an athletic man in a room with an open window 4ft high from ground-A has not confined B) b. If actor intends to imprison, the other is not required to run any risk of harm to himself, his chattels, or subjecting himself to liability to a third person (A closes every exit except one that would require B to threaten C with substantial bodily harm or would involve material harm to Bs clothing-A has confined B) c. If actor intends to confine and leaves only one safe exit that would make it offensive to a reasonable sense of decency or personal dignity (A in naked in Turkish bathtub, B closes all exits

except one to the general waiting room where persons of both sexes congregate-B has confined A; steal clothes to require someone to exit naked would be FI) e. Moral Persuasion- If P submits merely to persuasion, and accompanies the D to clear himself of suspicion , without any implied threat of force, the action does not lie. (jewelry store employee remained in managers office during questioning about report she stole jewelry) 1. Fear of losing ones job is a powerful incentive but does not render behavior involuntary 2. Retention of Ps property sometimes may provide restraint necessary to establish action 3. Future threat of action is not enough f. False arrest-a subset of FI occurs when one is taken into custody by a person without proper legal authority (lady arrested for not producing drivers license but was charged with violating leash law) a. Being detained on suspicion of theft can be upheld if longer than reasonabletime b. Being detained to complete paperwork at a business as a result of injury sustained on grounds can be upheld c. A private citizen who assists police office in false arrest can be guilt of FI unless officer requests his help g. Failing to fulfill a promise to release can establish FI (captain refuses to order a boat to take women from ship to shore while they are in port after he promised otherwise) h. Transferred Intent-applies (A & B in a room. C doesnt know of Bs presence but locks doors with intention to confine A. C is subject to B for FI)

5. Intentional Infliction of Emotional Harm (IIED)

a. Definition: Extreme or outrageous act with the intent to cause emotional distress AND severe emotional distress occurs AND there is proximate causation between the actors conduct and the resulting severe emotional distress. b. Elements: 4-prong test Acting with extreme or outrageous conduct (not acceptable by society) Intentional or reckless act by D (intends or should know) Actual suffering of severe ED (some courts require proof of physical harm) Direct causal link between act and distress suffered. c. Underlying policy: interest of freedom from emotional distress d. Not a favored tort, accepted, but must meet ALL elements, must be SEVERE emotional distress e. Outrageous conduct: liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community; does not extend to mere insults Rubbish collectors assn hold B in a room and threaten to beat and eliminate business of trash collector if he did not pay for the route he picked up. B was so frightened he became physically ill, Rubbish collectors are subject to liability for fright and illness 1. Severe threat of harm even without actual assault is sufficient A, a shopper, was told by B, the store clerk that she would not help her and that she stinks to her. A subsequently suffers a heart attack. B is not liable 1. Mere insults are not enough to establish liability 2. No liability for only hurt feelings or overly sensitive people f. Abuse of position, outrageous conduct can arise out abuse of position; when special relationships are involved, there is a heightened expectation Boss harasses employee with speech impediment for years so that he suffers emotional distress, Boss is not liable because employee couldnt prove SEVERE emotional distress A, a creditor calls and is harassing B, sending threatening pictures, threating to cause him to be terminated from job, threatens bodily harm-A is subject to B A, a creditor calls B to collect a debt and calls him a deadbeat and says he will never be trusted again-A is not liable to B

 Last minute cancellation of a wedding =not actionable. Courting, proposing, planning a weeding while still married= possibly actionable Frivilously filing a law suit-not actionable. Placing a juror in contempt of court in the same cell with accused= actionable. g. Vulnerability based on physical or mental condition or peculiarity may create extreme and outrageous conduct A, an eccentric and mentally deficient old maid believes there is a pot of gold buried in back yard. B, knows this, burries a pot with other contents in her yard, and when she discovers it, she is escorted to city hall where the pot is opened under circumstances of public humiliation. A suffers emotional distress and resulting illness. B is liable for both. Pregnancy-A, a pregnancy woman, witnesses B, knowing that she is pregnant and is greatly attached to her dog, kill the dog in front of her. A suffers severe emotional distress and results in a miscarriage. B is liable. A, an otherwise normal girl, is slightly overweight and is quite sensitive about it. B, knows this, and calls her a hippopotamus. This causes A to be embarrassed and angry, she broods over it and becomes ill. B is not liable to A. h. Otherwise extreme and outrageous conduct, may be privileged under the circumstances. A, and her children are destitute, ill, and unable to pay rent. B, the landlord, calls on A and threatens to evict her. Although conduct is heartless, he has done no more than the law permits him to do. B is not liable to A. i. Third party actions-most requires that the action not only be intentional and outrageous, but that they are directed at P or take place in the presence of P with Ds awareness (men beat up a father whose daughter was on the porch watching, but they werent aware. Not liable) (If the men had known the daughter was there, there could be action) Does not necessarily require seeing the action, hearing it through the wall may also be acceptable Some courts allow recovery without presence of P (A threatened to B the he would kill her husband, then did it, A was held liable) j. Doctrine of Transferred Intent does not apply. Cannot attempt to commit a False Imprisonment, consequently cause IIED and be charged with IIED. Must intend IIED. 6. Trespass to Land a. Definition: Every intentional, unauthorized, and therefore unlawful entry into anothers close is trespass to land, including remaining on ones land or leaving a thing on the land beyond permission. b. Underlying policy: right to exclusive possession of land Simply breaking of the close will be trespass Injuries caused need not be foreseeable to be compensable i. Possession- Not necessary to own the land, but (1)is in occupancy of the land,(2) was in occupancy, but abandoned, but no one else has taken possession, or (3) has the right against all persons to immediate occupancy of the land, if no other person is in possession ii. Any entry onto land without consent, even without harm, is actionable under trespass to land a) Tresspass is considered intentional even when action is honest and there is a reasonable belief that it is his own land. (A enters Bs land with surveryor chains believing the land to be his own, does no harm and leaves. A is subject to liability to B.) b) Causing entry of a thing onto the property of another. (A shoots a gun at birds flying over Bs property. A is liable to B for entry of the bullet onto Bs property) a. This could include fences, trees, eaves of roof c) Causing entry of a third person, he is liable as though he himself enters the land

a. A, against Bs will, forcibly carries B upon the land of C. A is a trespasser. B is not. iii. Permission to be on land can be limited by time, space, or purpose a) Trespass occurs when actor remains on land after expiration of license, overstay of welcome a. Visitor must be aware that he no longer has the possessors consent to remain b) Also applies to objects left on land ( steel pipe of snow fence left on Ps land, hit while mowing causing accident and death, D liable for trespass for failure to remove property) iv. Intrusions Upon, Beneath, and Above Surface of Earth a) A trespass may be committed on, beneath, or above the surface of the earth b) Flight by aircraft in the air space above the land of another is a trespass if, but only if, a. It enters into the immediate reaches of the air space next to land AND b. It interferes substantially with the others use and enjoyment of the land c. In cases stated above: government will be required to compensate owner v. Disagreement as to how far down land rights should go. One ruling states that sewer line 150ft. down is not trespass as the owner could not make use of the land; some western states provide that the miner is permitted to follow the vein wherever it may lead so long as it is unbroken c. Damages: Nominal damages will be awarded to prevent conversion into a prescriptive right or easement d. Reckless or Negligent Entries on Land and those Resulting from Extra Hazardous Activities One who recklessly or negligently , or as a result of an abnormally dangerous activity, enters land in the possession of another or causes a thing or third person to enter is subject to liability if, but only if, his presence or the presence of the thing or their person upon the land causes harm to the land, to the possessor, or to a thing or a third person in whose security the possessor has a legally protected interest 1. A drives his car recklessly on highway and collides with B in front Cs land. The force causes (1) the car to break through a hedge and/or into a flower bed, (2) the car to hit C causing him to miss work for a week, (3) causes car to his D, Cs son causing him to miss work for a week. In all situations, A would be liable to C and/or D 2. Same as above, but the car enters unfenced land and causes no damage. A is not liable to C. e. Accidental Entries on Land If actor is not engaged in abnormally dangerous activity, an unintentional and non-negligent entry on land in the possession of another, or causing a thing or third person to enter the land, does not subject actor to liability, even though the entry causes harm 1. A is walking along sidewalk of a public highway close to the border of Bs land. Without fault on his part, A slips on a piece of ice, and falls against and breaks a plate glass window in Bs store adjoining the sidewalk. A is not liable to B. 2. A is carefully driving his well-broken horses on a highway. Frightened by a locomotive, they become unmanageable and run away, striking and damaging an iron lamp post of Bs land. A is not liable to B. f. Nuissance-an interference with ones enjoyment or use of the land Related to trespass to land Must show damages to recover, not in TTL Trespass and nuisance can occur concurrently but not mutually exclusive

7. Trespass to Chattels
a. Definition: : unlawful use or intentional intermeddling, without consent or privilege, which harms the chattel of another, or seriously deprives the owner for a substantial period of time, or causes bodily harm to the possessor

b. Underlying policy: interest in the present and future possession of chattels c. Intermeddling means intentionally bringing about a physical contact with the chattel (must also cause harm) d. Damages: Nominal damages are NOT available-you must establish ACTUAL harm/damages A, a child, climbs on the back of Bs large dog and pulls its ears. No harm is done to the dog or any other legally protected interest of B. A is not liable to B. A leaves his car parked in front of a store. B releases the brake on As car and pushes it 3 or 4 ft. doing no harm to the car. B is not liable to A. e. Possession=physical control A drives his car to his office and parks it on the street for the day. B steals the car. The car is regarded as in As possession and A may recover. As mare escapes from the field and is pregnant. While she out she gives birth to the colt near the highway. A is regarded as in possession of the colt. 8. Conversion a. Restatement: an intentional exercise of dominion and control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. b. Similar to Trespass to Chattels but stonger degree c. Damages Generally based on market value at the time of conversion Nominal damages are available when the thing is of little market value but high personal value to possessor Viewed as a forced sale d. Tort is complete when someone uses the thing without authorization e. Generallly would file for both trespass to chattels and conversion together (ask yourself was it serious enough to file for both?) f. Protected ideas: (1) ideas that were gathered and arranged at some cost and sold as a commodity, (2) literary works or scientific research, or (3) instruments of fair and effective commercial competition, when those who develop them father their fruits Employee stealing the congressmans documents, copying, and replacing was not liable under conversion because the congressman was not dispossessed and no harm was done to documents g. Cant be applied to body parts, only personal belongings h. Examples On leaving a restaurant, A by mistake takes Bs hat from the rack, believing it to be his own. When he reaches the sidewalk A puts on the hat, discovers his mistake, and immediately re-enters the restaurant and returns the hat to the rack. This is not a conversion. Same facts as above but A keeps the hat for 3 months before returning it. This is a conversion. A takes Bs hat intending to steal it but sees a police officer standing outside and returns it. This is a conversion. A intentionally shoots Bs horse as a result of which, the horse dies. This is a conversion. Same facts as above, but the horse is merely scratched and quickly recovers. This is not a conversion. A owns a desk which his private property. On one occasion, with As consent, B uses the desk to write his wife. This not a conversion. Same facts as above but B uses the desk daily for 6 months. This is conversion.

Privileges
1. Consent

a. Effect-one who has otherwise committed an intentional tort may be free from liability if that person can prove consent was given by the other i. Apparent consent-absent expressed consent, consent will be determined by circumstances 1. Vaccine on boat case, getting in line and holding out arm was consent) ii. Implied consent-when one is unable to give consent, but special circumstances make it desirable for a person to engage in otherwise tortious conduct (medical emergencies) iii. Expressed consent-permission given directly, either orally or in writing b. Scope of Consent i. Must stay within scope of intent ii. May be conveyed through third person iii. Dangerous activities-taking part in a game thats inherently dangerous doesnt consent to contacts with are prohibited by the rules of the game (football player broke rules and injured plaintiff, D is liable) iv. Medical: Consent only for particular conduct, for ex. procedure is limited to that procedure (surgery on right ear when consent was given for left=battery) 1. Medical. Care provider can act without consent ONLY if: a. Patient is unable to give consent b. Risk of serious bodily harm if treatment is delayed c. Reasonable person would consent under like circumstances d. Dr. has no reason to believe the patient would refuse if able (ex: religion) 2. Patient cant change their mind mid-surgery 3. Children a. Parents must consent on behalf of child for all medical procedures b. Court can overrule parental consent/refusal for medical procedure for child 4. Doctrine of Informed Consent-doctor must disclose all risks and outcomes to patient in order to receive consent 5. Public Policy: (1) courts dont want to hamper doctors skill but also dont want doctors to have free reign and (2) preservation of bodily integrity c. Fraud or Mistake i. Consent obtained by fraud is not consent (lady giving birth was incorrectly led to believe the man with Dr. was also phsycian, liable for damages) 1. Consent obtained by fraud of a collateral matter does NOT negate consent (A presents B with a fake $20 to have sex with him, she consents believing it is real. A is not liable to B) ii. Consent under duress is not consent (at gun-point) iii. Consent cannot be given by those without capacity to consent iv. When there is no legal consent, battery is the result d. Consenting to an illegal act i. Judicial split on whether this is valid or not. Based on multiple factors 1. The effect of deterring him and other like him by denying him recovery if he gets hurt 2. Effect of potential liability in deterring the defendant and others like him 3. Fact that P has after all been intentionally battered by D 4. Policy of in equal guilt, the position of the D is the stronger 5. Even courts that generally recognize consent to an illegal act will not deny recovery to those whom the statute is mean to protects (example: child sex crimes)

2. Self-Defense
a. Existence of privilege- anyone is privileged to use reasonable force, not intended to cause death or serious bodily harm to defend himself against a threatened battery on the part of another i. Serious bodily harm= bodily harm that is so grave or serious that is regarded as differing in kind and not just degree from the other bodily harm

b. Amount of Force-The privilege is limited to the use of force that is or reasonable appears to be necessary for protection against a threatened battery. Differences in age, size, and relative strength are proper considerations i. To justify resistance with a deadly weapon D must have a reasonable apprehension of loss of life or great bodily injury ii. Used the reasonable person standard c. Reasonable belief- the privilege exists when the defendant reasonably believes the force is necessary to protect himself against a battery even though there is in fact no necessity i. includes mistaken identity d. Retaliation- when the battery is no longer threatened, the privilege terminates and becomes retaliation e. Provocation-does not justify battery but may limit liability to actual damages i. if abusive words are accompanied by actual physical threat, one may be privileged to defend f. Retreat-retreat is not required, one may stand his or her ground even if he or she believes retreating would prevent the harm g. Injury to Third Party i. Not liable to third person for unintentional harm in the absence of some negligence toward him ii. If third person is intentionally used as shield or harm, liability exists h. Force in excess of privilege i. Would be liable for damages only for the excessive force or confinement

3. Defense of Others
a. Nature of Privilege- anyone is privileged to use reasonable force, not intended to cause death or serious bodily harm, to defend a third person by the same means he is privileged to defend himself i. similar to self-defense, usually for family members or master/slave ii. must use reasonable force b. Reasonable Mistake- protected if acting based on a reasonable mistake

4. Defense of Property
a. Existence of Privilege-One is privileged to use reasonable force, not intended to cause death or bodily harm, to protect personal or real property if (1)the intrusion is not privileged, (2) the actor reasonable believes the intrusion can only be prevented with force, and (3) the actor has first requested that the other desist and the other has disregarded it, or the actor reasonably believes the request to be useless. i. Limited to unlawful intrustions (cant cane an elderly woman for picking flowers) ii. Limited to reasonable force (Spring loaded shot gun meant to cause serious bodily injury or death is unlawful) iii. Also includes expelling intruder into circumstances that may lead to death or serious bodily injury (ex: into the freezing cold night, out of a moving rail car, into a barn with snakes) 1. Unless the intruders staying would cause serious harm to those present (serious contagious disease) b. Force threatening death or serious bodily harm i. Only privileged if the actor reasonably believes the intruder, unless expelled is likely to cause death or serious bodily harm to the actor or third person 1. Likely to occur at a homestead at night 2. also a privilege to use reasonable force to prevent the commission of crime including kidnapping, murder, sexual assault, robbery, arson of an occupied structure, burglary, manslaughter, child molestation 3. some authority that the right of peaceful habitation may be protected with deadly force 4. rule prohibited deadly force in some states is modified if owner owner provides clear notice of danger (ex: signs warning of death or serious injury or barbed wire) c. Mechanical devices- general rules of defense of property apply

i. Only reasonable force may be used ii. Deadly force by mechanical device may only be used to protect against deadly force by intruder (spring loaded shot gun not permissible to protect intrusion of empty farm house) d. Assualt or Imprisonment- privilege to confine or put in apprehension of harmful or offensive contact for the purpose of terminating the others intrusion (A is trespassing on Bs land and refuses to leave. B threatens to beat his head with in a stick. Privilege allowed) i. only to the extent which the actor believes is reasonable to prevent or terminate the intrusion e. Reasonable Mistake-reasonable mistake does not apply unless the intruder intentionally leads actor believe the intrusion is unprivileged i. Others mistake- the fact the other reasonable believes he or she has the privilege to possess the land or chattel does not matter unless actor intentionally or negligently leads the other to believe so

5. Recovery of Property
a. Rule of Law- a person disposed of land or chattel may use reasonable force, not deadly, to regain property immediately after dispossession, only after a demand is made for the return i. Land1. Only available when ALL of the following are met a. The other has tortiously dispossessed (without claim of right) the actor of the land a. Claim of right means without belief by the other that he is entitled to the land b. The actor is entitled to immediate possession of land c. The actors entry is made promptly after dispossession or knowledge of dispossession occurs d. The actor first requests the other to give up the land unless such request would be usesless e. The force is employed for the purpose of regaining the land f. The entry is by reasonable force, not intended to cause death or serious bodily injury 2. Not privilege for reasonable mistake 3. Liability to third person-only if actor realizes or should realize that his act creates an unreasonable risk of causing such harm ii. Chattles 1. Fresh pursuit-the actor must discover the dispossession without unreasonable delay and act promptly and within reason to recover the chattel 2. Necessity of demand-actor must first demand back the rightful possession unless he or she reasonably believes the act would be useless 3. Reasonable force, never deadly a. Deadly force only allowed if the thing being taken is necessary to save the life of the actor, a third person, or to prevent the other from using the chattel to take his own life b. Assisting a third person-privilege available to assist a third person in recovery of chattel if privilege is available for the third person AND i. The third person requests help ii. The actor and third person are immediately family members or of same household iii. Or third persons chattel is under protection of actor c. Shopkeepers Privilege- : Shopkeeper has privilege to detain for investigation a person who he reasonably believes has unlawfully taken property. That privilege extends to premises and immediate vicinity of premises (cant follow suspect home) i. Keeps shopkeeper from debating the dilemma: Is this false imprisonment? ii. Merchant must ask himself these questions: (woman detained as suspected shoplifter; she had no claim for FI b/c search met criterion of Shopkeepers Privilege) a. Does person have the right be retained temporarily? b. Does detention take place in or near the store? c. Was person reasonably suspected of theft? d. Was there a purpose for reasonable investigation?

iii. Reasonableness Prongs: 1. Reasonable belief of theft 2. Reasonable investigation-time, manner, parameters a. Judge or jury will decide reasonableness based on circumstances b. You cant force someone to confess something before you will allow them to leaveFI c. Make a request if possible & never allowed to use excessive force iv. Public Policy: Merchants are extended special privileges to ensure vitality of business, but there are limits to the extended privilege (person detained cannot claim defamation of character); keeps consumer prices down v. Hypo: What about landlords & tenants who havent paid up on rent/Re-entry upon Real Property? Majority JSD: You cannot retake land b/c you have a right to action in the court (plus is the land or house really going anywhere?) Minority: You are entitled to immediate possession and may use force short of causing death or severe bodily harm (English courts think this)

6. Necessity
a. Public Necessity-one has a privilege to commit what would otherwise be trespass to land or chattels or a conversion if doing so is reasonable believed to be necessary to prevent a public disaster. (controlled burning to prevent wild fires from destroying entire communities) i. must be more than mere convenience ii. must have no self-interest or ill-will iii. does not have to be a public official, but no reason for private individual to assert right when public official is already doing an adequate job iv. must be exericsed in a reasonable manner to prevent harm to person or things where possible v. Moral obligation exists to compensate the person whose property has been damaged or destroyed for the public good is obviously very great, many states have statutes governing this 1. Payment for damages not required b. Private Necessity-one is privileged to enter or remain on land in the possession of another if it reasonably appears to be necessary to prevent serious harm to the person, his chattels, or a third person (ship remained tied to dock during storm) i. Benefit of exercising this right must be weighed against potentional harm ii. Actor is subject to any liability caused in the exercise of this privilege iii. Must pay for damages

7. Authority of Law
a. Police officers, military personnel, prison officials, regulatory inspectors, or officials at mental health facilities may act under the authority of law, to engage in conduct that would otherwise be tortious b. Warrants i. An office doesnt have to investigate the propriety of a warrant ii. If officer arrested wrong person, could be FI unless he could prove due dillegence iii. Police office and private citizens may arrest without warrant to prevent felony or breach of peace 1. Officer-with reasonable ground for thinking a felony occurred 2. Private citizen-felony certainly committed and reasonable cause for suspicion iv. For breach of peace that is not a felony, an officer or citizen may arrest w/out warrant but only if committed in his presence or in fresh pursuit v. For misdemeanor, only an officer can arrest if committed in his presence vi. Even if arrest is lawful, officer may be subject to liability if he uses excessive force 8. Discipline a. Factors used to determine if privilege to punish child is available 1. Whether actor is a parent 2. Age, sex, condition of child 3. Nature of offense and apparent motive

4. Influence of childs conduct as example on another children in same family 5. Whether force or confinement is reasonable necessary and appropriate to compel obedience to a proper command 6. Whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm b. One who is charged with educating or training a child may use reasonable force or confinement in so far as privilege is necessary part of training c. Parent may restrict or forbid punishment

9. Justification (most general)

a. Lawful excuse for an act which otherwise might be illegal, or tortious conduct b. Court looks at the following factors and whether defendant acted reasonably under circumstances i. Manner of occurance ii. Time of occurance iii. Place of occurance iv. If all are met, there is not tortious act c. Public policy- it would be unfair if law failed to protect person who should be protected under the circumstances d. Example: Bus driver acting in loco parentis to control bus of unruly school children; a boy jumps out of window, injured, and claims FI against bus driver, but bus driver had justification b/c he had obligation to protect bus and children

Negligence (add in negligence per se)

1. 4 elements: Duty Breech Causation 1. Causation in fact 2. Proximate cause Damages 2. Standard of Care (duty) The reasonably prudent person 1. Definition is a reasonable prudent person 2. In Emergency situation-would use level of care that a reasonably prudent person in an emergency situation would use (cab driver at gun point, jumped out of moving car) 3. In case of person with physical disability-level of care would be that of a reasonable person with a similar disability (blind walking without cane bumped into and knocked down old man) a. Sudden emergency doctrine applies when there is a sudden onset of physical disability 4. In cases of children-level of care is based on that of a child of similar age, experience, and intelligence. a. Child in an inherently dangerous activity would be held to the adult standard (child drives a snowmobile that causes another childs thumb to be severed) 5. In cases of mental disability, would be held to that of a reasonably prudent person (no exceptions made) a. No exception made for sudden onset as in physical disability The Professional (requires expert witness) 1. Use an objective test of a reasonable person in the industry

2. Often requires expert witness unless the matter is so apparent that any layman would understand a. Expert must establish the standard of care AND b. State the conduct failed to meet the requisite standard 3. Acting in good faith and in accordance with common practice (standard of care) is the expectation of professionals and cant be held liable for mere error in judgment on an issue that hadnt been decided by a court. 4. If you hold yourself out as at a particular level, you will be held to that standard. (National lab advertised national certification, must be held to that level) 5. Informed consent-a doctor must all provide information that a patient would want to know in making a decision to consent to a risk (Dr. failed to inform patient of risks of hysterectomy) Aggravated Negligence 3. Rules of Law 1. Statutes are not automatic, must also take into consideration the circumstances (ex: car hit by train when couldnt see train coming but getting out to look would have been more dangerous than staying in) 2. Violation of Statute is negligence only when P falls within the class meant to be protected by statute and harm intended by statutethen must find cause 3. Wrongful acts of independent 3rd parties, not actually intended by the defendant, he is not bound to anticipate general probability. <- this breaks causal link a. Exception: if the act is foreseeable, the link is not broken (ex: leaving keys in the car, running and unlocked, creates foreseeability that it could be stolen and cause harm) 4. Violation of Statute 5. Proof of Negligence a. General Direct or circumstantial evidence b. Circumstantial evidence-evidence revolving around circumstances of event Constructive notice-should have known notice due to duty to maintain rather than actual notice c. Res Ipsa Loquitor General purpose to avoid harsh consequence to plaintiff when they can provide requisite evidence Evidentiary rule with 3 elements 1. Event would not have occurred absent negligence 2. Instrumentality of harm in exclusive control of defendant 3. P must not have contributed to negligence Can only be used when no direct or circumstantial evidence is available Instrumentality clause- based on who has right of control (ex: barrel falling from window) Multiple defendants-generally, res ipsa will not apply if there is more than one defendant named 1. Exception: Medical cases with unconscious patient (328 D) a. Shifts the burden to the D to prove that they did not engage in negligent conduct Determining negligence through res ipsa-the possible ways 1. It warrants an inference of negligence that is for a jury to determine (majority) 2. It raises a presumption of negligence which requires the jury to find negligence if defendant doesnt provide evidence to rebut the presumption 3. It shift the ultimate burden of proof to D that requires him to prove by a preponderance of evidence that injury was not caused by his negligence

Causation in Fact
a. But-for test -Ps harm would not have occurred but for the action of D (only for 1 defendant) b. Substantial factor-Ds action materially contributed to Ps injury (For more than one defendant) 1. Sine Qua Non-without which it could not be, essentially the but-for test 2. Proof of Causation a. Must show that Ds action creates causal link i. Natural and probable consequence-chain of cause ii. If your actions greatly increase chances of the injury=liability (overweight lady fell down the stairs) iii. Testimony of experts are to be considered cause in fact iv. Substantial Factor 1. Probability could be a substantial factor a. Possibility is not the same as probability (falling broken glass cut leads to cancer) 2. Harm from another source would have to use substantial factor test, instead of but-for ( cancer patient already had, less than 50% chance of survival but hospitals negligence in not diagnosing it reduced his chances of survival by 14%, there action was substantial in reducing his chances of survival) a. Damages awarded based on premature death (like lost wages & additional medical expenses) 3. Evidence must be reliable and relevant to be substantial factors a. Reliability-soundness of methodology -For expert witness to establish cause; does not have to be in line w/general opinions b. Science v. litigation: research cant only be done for the purposes of the case i. Has to provide assistance to the trier of fact c. Without direct causal link, must show more likely than not increase in likelihood (By 50% in California) 4. Concurrent causes a. (if neither along, liability) when 2 acts are cause for single injury, but neither could have caused it alone, both are fully responsible (car accident truck parked in road, car driving w/out lights) b. (if either alone, liability) when 2 acts could likely be the cause of an event, all/both parties are liable (2 fires joined and caused damages) i. established causation must be substantial not just material 5. When it is proven that two or more people are the sole cause of a harm, but only one could have possibly been the cause, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm. (hunting accident, 2 shot at the same time, a 3rd party hit, couldnt be proven which gun it came from) 6. In DES cases, market share liability unless they can prove their innocence

Proximate Cause
Proximate Cause LEGAL CAUSE-policy decision by legislature to deny liability for otherwise actionable conduct based on considerations of logic, common sense, policy, precedent, and our more or less inadequately expressed ideas of what justice demands or of what is administratively possible and convenient Typically question for a jury Intervening forces-forces that occur in the chain of events leading to the event at question (check definition) Superseding intervening cause-must be highly extraordinary, as opposed to foreseeable (check definition) Unforeseeable Consequences

Actor is liable in damages for the proximate results of his actions, but not for remote damages Fires not limited to adjacent properties o Plaintiff must be taken as he was found includes pre-existing conditions give rise to liability Liability exists when unforeseeable consequences follows from physical injury **eggshell theory extended to the fragile psyche as well o Proximate cause is found by consequences from an unbroken sequence without intervening cause Direct causal link, doesnt matter if you cant determine type of harm or extent of harm o In negligence, liable for natural and continuous consequences Too remote (in time or space) consequences wont sustain (oil on water not foreseeable because at time was unknown to be able to catch fire) Professional standard would apply for negligent behavior (should have known consequences) o No negligence in the air P must be in the orbit/zone of danger, must place himself within reasonable range of negligent act, otherwise no duty to the person Intervening Consequences o Must weigh foreseeable consequence v. highly extraordinary consequence Foreseeable consequence =negligence Highly extraordinary consequence=no negligence o May be more than one proximate cause o Intervening cause must be highly extraordinary to be superseding and limit liability o Acts of God-wont interrupt causal link unless its something of a different kind exception ( 450) actor liable even for result of force of nature unless have taken adequate precautions Would it have occurred anyway and just accelerated by force of nature? If so, liability o Criminal act will break the proximate cause link (**Read notes after Watson case pg. 341) o Negligent tort-feasors may be liable for the wrongful death, by suicide, of a person injured by their negligence if it was found to be and uncontrollable impulse o Rescue Doctrine-allows an injured rescuer to sue the party which caused the danger requiring the rescue in the first place Rescuer-requires (1) D was neg. to person rescued and such negligence caused the peril or appearance of peril; (2)peril or appearance of such was imminent; (3) a reasonable prudent person would have concluded such peril or appearance of peril existed; (4) the rescuer acted with reasonable care in effectuating the rescue Danger Doctrine-danger invites rescue Public Policy o Majority Rule-Social Host serving alcohol to adults not liable to third parties injured in accidents (except when serving minors) o It is the courts duty to confine liability within manageable limits (DES limited to 1st generation affected) 2 general approaches to proximate cause: (court use both, likely to produce the same result) o (1) hindsight, or direct-causation o (2) the foreseeability approach-the risk test (would theoretically produce a smaller ambit of liability) Shifting responsibility o Generally a D cant blame another D for negligent actions, the other Ds actions wont impact his liability o However, in a few cases, the responsibility may shift to another D, relieving original D (child brings home dynamite caps found on construction site. Parent takes them away, but child later finds them. The responsibility has shifted to the parent

Joint Tort Feasors

Liability and Joinder Defendants

Joinder = individuals (1)acting in concert, (2)failure to perform a common duty,(3) acting independently causing an indivisible harm yields joint and several liability Joint and several liability, P may recover from one, some, or all of defendants found guilty Several liability D is only responsible for his part In negligence, you are liable for all natural and probably consequences of act Concerted action= defendants liable for all natural and probably consequences resulting from negligent acts by parties acting in concert Comparative negligence=P can recover proportionate share of liability That also retains joint and several liability-defendants will be responsible for all damages after reduced by the amount of Ps negligence. P can then claim from one or all defendants Without Joint and several liability-D will only be responsible for their own contribution Satisfaction and release o P cant recover from other Ds when they have already recovered 100% of judgment from another D-they have received their one satisfaction By choosing not to collect payment on one judgment, P reserves the right to sue other Defendants o P may bring a series of separate actions against Ds liable for the same damage, and take each into judgment as long as they collect only one Any partial satisfaction of the claim must be credited to the other parties who are also liable o Collateral-source rule: payments made on tortfeasors behalf should be credited to defendant (insurance company) however payments not made on behalf of tortfeasor are not creditable (husband provides free medical treatment) even when they amount to more than compensation granted o A release of one defendant is not necessarily a release of all defendants when they dont intend to do so o Satisfaction is receiving full compensation based on Ps valuation or courts judgment. Claim is only satisfied when it has been paid o Release only occurs when P surrenders claim whether paid in full, in part, or none at all o Covenant is not a release but a promise, right to sue is retained, defendant would have a counter claim for breach of contract o If D signs a relaease based upon thinking only received assumed injuries, but later finds out he has more, would be required set aside release based on duress, mistake, fraud, undue influence in order to regain the right to sue o Law encourages settlements o Mary Carter agreements appear that they promote settlements, but really promote trial because it pits some defendants against other defendants Defendants settle with P to sue against a different D Hurts adversarial causes-Ds are sitting at table with D trying to help P Contribution and Indemnity o A party who is sued for negligence may file a cross-claim for contribution if P joined both tortfeasors, may join (implead) another person as a third-party D from whom he is seeking contribution, or may bring a separate action for contribution. o Contribution can be sought for out of court settlements as well o If a D is made to pay more than his allocated share (as a result of joint and several liability), he has a right to seek contribution Only for intentional wrongdoers, not for those acting intentionally Most jurisdictions now use comparative negligence to make divisions according to relative fault o A non-immune tortfeasor may not seek contribution from an immune tortfeasor (such as spouse) In order to maintain domestic peace and felicity is the underlying policy For contribution, must establish joint liability, and no liability exists between husband and wife

o o

o o

A tort-feasor may not seek contribution from a party that has been released from the suit in a good-faith settlement (Ford case)**not all states Indemnity allows a tortfeasor whose liability to the P was not based on its own wrongful conduct, but imposed on it by law because of its relationship with the tortfeasor whose wrongful conduct caused the injury (ex: employer/employee; automobile owner/driver) For apportionment of damages, expert witness would have to show proof (ex: medical records) that D proximately caused the damages With multiple defendants of indivisible harm, burden of proof shifts to D to relieve themselves of sharing in or reduce amount of sharing in damages

DUTY OF CARE
Duty-gives rise to legal obligation Duty is only owed to those in zone of danger-foreseeable Privity of Contract Nonfeasance=contract issue Misfeasance= possible tort Issue o In order to recover under contract law, must be part of the contract (privity of contract)(general rule)(OLD LAW) Exception Public duties are established for: public utilities, inn keeper, common carriers (transportation) Public nuisance o The manufacturer of a dangerous thing is under a duty to make it carefully to protect ultimate consumer (changes privity of K limitations to products liability) An individual who undertakes to make a repair owes a duty to use care to those who may be foreseeably injured in case the repair is negligently made Liability for physical injury arising out of a failure to repair turns on whether the contractor gave an undertaking Where there is assurance that repair has been made even though nothing has been done=misfeasance If D commences performance and then omits to complete performance he has committed misfeasance just as if he had performed negligently If physician prescribes drug to patient without warning her of effects, liable to those she injures as a result o Privity of contracts still existed for other services and contracts including public utilities (last is questionable, may use public utilities contracts) If defective water is in fact supplied under a contract with the city, the D may liable to an individual for resulting injury (ex: typhoid fever) o Duties of atty/client relationship will not flow to third-party beneficiaries Privity limitation still significant Cases in which attorneys have been held liable to third parties generally have involved beneficiaries of wills When attorneys work product is primarily for the benefit of a third party, potential liability can arise Failure to Act (Condense exceptions) o If not common law or statute that imposes a duty, there is no duty to act

Certain groups are required to act such as common carriers, innkeepers, and public utilities (*read notes from 432-433) o There is no legal duty to go to the rescue of someone in peril (read notes pgs. 435-440) Exceptions (Special relationships and instrumentality of harm) Special relationships Instrumentality of harm-if failing to act would make harm worse, there is a duty to act in a reasonable time) Good Samaritan law relieves people of liability who render aid in good faith No obligation to come to the aid unless you are the cause of the harm o Particularized foreseeability (wife should have warned someone that husband could be having inappropriate relations with the children) o Special relationships-sometime establish a duty to warn of possible dangerous propensities when the person knows or should have known of the ability to control and knows or should know the necessity and opportunity for exercising such control Parent/child Master/Servant Possessor of land or chattels to control of licensee Those in charge of person having dangerous propensities Duty by medical professional to use the professional standard of care to warn someone of potential harm to third person Persons having custody of another to control conduct of third persons Pure economic Losso no recovery without physical damages unless primary source of livelihood disrupted (ex: fisherman in oilspill Negligent Infliction of Emotional Distress o Physical manifestation rule- where there is no physical impact: (1) there must be a definite and objective physical injury that is the natural result of the fright proximately caused by the Ds conduct, and (2) this injury must be proven by scientific testimony; and the Ps cannot claim for mental distress which is beyond what a normal person would suffer. Exception: death-telegram (wrong death announcement) and negligent interference with dead bodies Bystander Rule-(1) close, familial relationship (such as parents, child, sibling, not fianc), (2) present at the scene of injury producing event and aware that it is causing injury to victim, and (3) as a result suffers serious emotional distress (a reaction beyond that which would be anticipated in a disinterested witness and which is not abnormal in similar circumstances Above shortened: Presence, awareness, close familial relationship Unborn Children (Read beginning pg. 480) o A majority of states uphold a civil claim for the wrongful death of an unborn child o Child in utero.?

DEFENSES Plaintiffs Conduct 1. Contributory Negligence P is in some part liable for negligence o Only 5 states still uphold this, but common law doctrines ameliorate the harshness of the rule Last Clear Chance Doctrine-if the D had a chance after the P no longer had a chance to prevent the harm and did not do so. 2. Comparative Negligence- a defense raised in neg. cases (NOT cause of action) must be proved by D (read notes after)

Pure comparative= P will receive damages for the percentage of damages he was not responsible for (reword) o Modified comp. neg. version #1 49% Rule= if P is less than 50% responsible, they can recover for the percentage they did not cause o Modified comp. neg. version #2-50 % Rule= if P is not greater than Ds, he can recover amount of damages he did not cause The two modified versions are really only different when the jury determines that the P and D are 50/50 negligence 1. Assumption of Risk o Not favored by the court o P has assumed the risk and is barred from recovery (Look at rules on other statement) o Expressed-D asserts that the P expressly assumed risk Two basic issues (1) whether the risk that injured P fall within the unambiguous terms of the agreement (2)whether the contract violates public policy and should not be enforced (reasons for unenforceability) o If party intentionally causes harm, or grossly negligent o Bargaining power greater than that of other party o Overriding public interest Ex: day care No magic words-its ideal to look at what the court has already approved In most states parents can waive their own rights, but not their childrens Comparative negligence statutes may affect implied assumption but not expressed assumption of risk o Implied it requires actual knowledge of the particular risk, appreciation of its magnitude, and voluntary encountering of the risk circumstantial evidence may satisfy actual knowledge of risk not voluntary when no other options (only bathroom, or driver has to get home on dangerous highway) primary assumption of risk o where D owed no duty to P or did not breach duty, rather P assumed the risks inherent in the activity P goes back into a blazing house for baby Crowd at a baseball game behind home plate knowing balls may be hit that direction secondary assumption of risk o P acts voluntarily but unreasonably to encounter known risk o P goes back into a blazing house for fedora Consent v. implied assumption of risk separate defense from consent because it involves encountering of a subjectively known risk, where for consent the P exposes himself to a danger of which he was subjectively unaware but would have been apparent with due care not available in cases of child abuse contributory negligence v. implied assumption of risk (merged) Most courts have held that implied assumption of risk is NOT separate from contributory negligence, requires the merger of the two defenses The merger would allow them to recover now if it is contributory risk in a comparative negligence state

2. Statutes of Limitations and Respose o Statute of Limitations (procedural) Time limit during which cause of action can be brought Accrual-time begins to run when the cause of action accrues, leave to court to fix that point Generally held to be when an actual injury to Ps person or property because damage is a requirement discovery rule begins running from the time discovered or should have discovered**majority rule In some medical malpractice , time doesnt begin running until course of treatment is complete Tolling-stops the running of the clock most courts toll the statute for minors or those legally insane or incompetent Tolling stops (clock starts running again) when minor reaches majority or instance becomes competent again o Sometimes appointment of guardian starts the clock in some jurisdictions clock is also stopped when D fraudulently conceals injury or their identity o Statute of repose (substantive) Time limit during which cause of action can arise Primarily for architects, engineers, products liability Its possible that injury may occur after limit of repose has run (18 years later after created) Simply a policy decision on part of legislature to draw the line somewhere 3. Immunities Avoids liability in tort under all circumstances withing the limits of the immunity itself Based on status of position of favored defendant Example: immunity of those engaged in judicial, legislative, and executive proceedings Judges, attorneys, witnesses, court-appointed guardians ad litem, and court-appointed psychiatrist Protection from defamation for attorneys questioning P in deposition o Families Spouses do not have immunity in personal injury cases (no immunity) Even in jurisdictions with interspousal immunity, courts generally allow recovery for intentional torts After divorce, spouses are permitted a claim for torts that occurred prior to and, in some jurisdictions, during the marriage. Parent/child immune (yes immunity) Generally immune from negligent acts but not intentional Only in 12 jurisdictions, immunity is abolished completely Most only provides exceptions to the general rule Step-parents-only have immunity when step in as loco parentis (question for jury) o Length of time living together o Relationship o Financial support Policy-prevent state interference with constitutional right to parent children as you see fit o Charities (no immunities) Generally, nongovernmental charitable institution is liable for its own negligence and negligence of its agents and employees acting within scope of employment Minority rule: Some jurisdictions have made exceptions

o o o o

Hospitals have no immunity, but religious and other charities still have immunity Limited to recipients of benefits of charity No immunity when D is covered by liability insurance such that judgment can be satisfied by the insurance rather than charitable funds

Employer Immunity Workers compensation, employer is immune from work related injuries, but employees also do not have to prove all elements to get recovery from employer