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Torts Outline Steven Finz

I. Intro a. What is Torts? i. The law can be divided into two broad areas: substantive and procedural ii. Torts concerns Substantive law 1. What are peoples duties and rights 2. A duty is a legal obligation 3. A right is something you are entitled to have done for you. 4. If I owe you ten dollars, I have a duty to pay and you have a right to receive. 5. A tort is a violation of a duty that one person owes to another without an agreement. Where Issues Come From a. Three Factors where all Torts come from i. Basis of Liability 1. There is no tort unless someone who has done something for which the law imposes liability. 2. Fault a. Intent b. Negligence c. Recklessness 3. Strict Liability (Liability without fault) ii. Proximate Cause and Damage (Harm a Plaintiff sustains) 1. With very few exceptions, liability is not imposed unless there is actual damage or injury. Even if a plaintiff is injured, he/she must show that the injury was proximately caused by the defendants behavior. iii. Affirmative Defenses 1. A legal argument that releases a defendant from all liability based on some privilege or special circumstance. a. I.E. Self-Defense Intent in General a. In the law of torts, intent is generally defined is that a defendant desired or was substantially certain that a specific result would occur+ Intentional Tort you are examining. b. Intent is a SUBJECTIVE standard (what was going on in the persons mind) proved with OBJECTIVE evidence. I.E. What the person actually thought, and not what a reasonable person would have thought. c. Difference between VOLUNTARY actions and INTENTIONAL actions

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i. I.e. if you voluntarily point a gun at someone and pull the trigger, but you think the gun is empty. You acted voluntarily, but without intent. d. Also difference between INTENT and MOTIVE i. i.e. You are motivated to play a prank on a friend because it would be funny, however your friend is injured and does not think it is funny. You still intentionally played the prank, but your motive was not to injure. Intentional Torts a. Intentional Invasions of the Person i. Battery Essential Elements 1. Intentional a. The desire or substantial certainty that harmful or offensive contact will occur. 2. Harmful or Offensive Contact a. Harmful means injury occurs b. Contact is offensive if P does not authorize or give permission for the contact i. Objective standard to define offensive contact: The kind of contact a reasonable person would not be offended by. ii. A Ds knowledge of a persons special sensitivity to certain contact DOES result in a battery. (I.E. If I know you are seriously offended by people tapping you on the shoulder, and I intentionally tap you on the shoulder, I have committed a battery.) 3. With the Plaintiff, or some logical extension of the plaintiff 4. WITHOUT CONSENT OR PRIVELEGE. 5. But for test 6. Take the Plaintiff as you find them a. Means that the Defendant is liable for all consequences proximately flowing from the completed harmful/offensive contact. ii. Assault Essential Elements 1. Intent a. Defendants desire or substantial certainty that his/her act will produce a harmful contact, offensive contact, or apprehension of such contact. 2. Inducing Plaintiffs reasonable apprehension of harmful or offensive contact. a. Apprehension does not mean fear, but fear ALWAYS includes apprehension.

b. Apprehension means anticipating or looking forward to something with discomfort. i. I threaten to punch Mike Tyson in the face, he might not be afraid, but he is definitely experiencing apprehension. c. There is no assault unless the apprehension or fear is reasonable. i. I.e. if someone is deathly afraid of shaking hands with someone, a reasonable person is not afraid of these things and thus attempting to shake hands with this person is not assault. ii. However, specific knowledge of a persons fear of shaking hands IS assault. Because you know to a substantial certainty that this person will experience apprehension or fear from shaking hands with you. iii. Almost all courts have said that you cannot commit assault with words alone. EXCEPT if I tell you Im going to shoot you with the gun I have in my coat, and I reach into my coat. This is enough to produce reasonable apprehension. However, it is not the WORDS it is the PHYSICAL ACT in conjunction with the words. 3. Ways to commit assault a. Acting with the to make offensive contact w/ p b. Acting with the substantial certainty that harmful contact will occur c. Acting with the substantial certainty that offensive contact will occur d. Acting with the desire that the p will become apprehensive of harmful or offensive contact e. Acting with substantial certainty that p will become apprehensive of harmful or offensive contact. iii. False Imprisonment 1. Intent a. The desire or knowledge to a substantial certainty that the plaintiff will be confined by the defendants act. b. If a defendant is not aware of a plaintiffs confinement there is no imprisonment.

i. I.e. if I lock up a building unaware that anyone is inside, I lack the necessary intent to confine a plaintiff. ii. False imprisonment never makes necessary that a defendant know the plaintiffs identity. 1. I.e. If I think that I am locking John in a building, but its really Sam. It is not a defense to say I intended to confine John and not Sam. 2. Confinement of the Plaintiff a. Overcoming the Plaintiffs will to leave. i. Must be overcome by what would overcome an ordinary persons will to leave. ii. This means you cannot confine a person who is unconscious or asleep, because this person has no will to leave. iv. Intentional Infliction of Emotional Distress 1. The Defendants desire or knowledge to a substantial certainty that his/her actions will result in the plaintiffs experiencing emotional distress. a. The tort is one that only interferes with the persons mental condition. b. In connection with IIED, the conduct must be so outrageous it exceeds all bounds of conduct normally tolerated by society. The conduct must be EXTREMELY likely to produce mental suffering in the Plaintiff. 2. Severe or Serious Mental Suffering a. Some jurisdictions require an actual physical symptom of the distress. b. Affirmative Defenses i. Self Defense 1. Prevent a Tort 2. By using reasonable force a. The force that appears necessary to the reasonable person. b. Trick for reasonable person argument: Whenever you act that act has advantages and disadvantages. If disadvantages outweigh the advantages, the behavior is unreasonable. I.E. Someone comes at me with a realistic looking fake gun, I hit them with a baseball bat. I reasonably believe that gun is real and hit you with a baseball bat. The advantage is that I

reasonably believe that I am saving my life, the disadvantage is serious harm to the person with the fake gun. The Courts will always take the position that the most valuable thing to a person is their life, therefore deadly force is only reasonable when someone reasonably believes that their life is in danger. I.E. If you hit me with a bag of marshmallows, it would not be reasonable for me to shoot you. ii. Defense of Others 1. Prevent a tort 2. By using reasonable force 3. Primary theory: You can defend others if you reasonably perceive the other person is threatened by tortuous conduct. 4. Derivative Theory: You have the right to defend others only if the person in danger also has the right to self defense. iii. Defense of Property 1. Prevent a tort a. Recapture of Chattels i. Wrongful dispossession ii. Prompt Action iii. Reasonable Force 2. By using reasonable force c. Intentional Invasions of Property i. Trespass to Land Essential Elements 1. Intent knowledge or substantial certainty that his or her act would result in entry to the property 2. Entry on plaintiffs realty/land a. Entry going in or onto the realty entry occurs when anything tangible or real enters the realty. i.e. if I throw my trash over the fence into plaintiffs yard, I have made an entry. b. Realty is land and anything permanently attached to the land. 3. The entry must be unauthorized 4. REMEMBER: NO DAMAGE IS REQUIRED IN A TRESPASS TO LAND CASE. ii. Trespass to Chattel 1. Intent a. Desire or knowledge that the particular thing would be affected by the defendants conduct

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2. Interference doing something with the chattel that only the rightful owner of the chattel has the right to do. 3. Damage iii. Affirmative Defenses 1. Necessity a. Public Necessity i. Requires an emergency threatening the general public. ii. Public necessity does not require that the defendant pay damages. b. Private Necessity i. Emergency threatening only an individual life or property. ii. In private necessity you still have to pay damages. c. Consent i. Consent is an affirmative defense to ALL intentional torts. ii. Defendant has the burden of proving consent. iii. If you induce consent by deception, it is not a defense. 1. I.e. if I tell you I need your car because I am a police officer, but Im not a cop, I have committed a trespass to chattel. Negligence a. Definition negligence is usually defined as the breach of the duty of reasonable care. i. Duty of Reasonable Care - A Defendant is not liable to a Plaintiff unless the Defendant owes the Plaintiff a duty of reasonable care. (Special knowledge or skills increases the Duty of Care) ii. Factors When Determining Duty of Reasonable Care 1. Foreseeable Risk A risk is foreseeable if a reasonable person would have anticipated the harm or outcome. 2. Foreseeable Plaintiff whether it was foreseeable that the anticipated injury would occur to that particular Plaintiff. a. Palsgraf Case Cardozo uses forseeability, Judge Andrews uses proximate cause. b. Cardozo says that when the Defendant was yanked onto the train there were many foreseeable outcomes. However, there was nothing about the package that wouldve placed

the ordinary person on notice of the danger of the Plaintiff. No hazard was apparent to the eye of ordinary vigilance. c. The risk reasonably to be perceived defines the duty to be obeyed. Therefore, the railroad operator could not reasonably perceived the danger to the Plaintiff. d. Carroll Towing Duty of Care a function of three variables i. Probability of event ii. Gravity of resulting injury iii. Burden of adequate precautions iv. Negligence = Risk/Utility 1. Negligence = Burden < (Probability x Loss) 2. Not Negligence = Burden > (Probability x Loss) e. Plaintiff always has the duty to mitigate damages. I.E. to not increase the risk. (I negligently cut your finger which requires stitches, you fail to get stitches causing infection, hospital has to amputate your finger. I am not liable for the amputation b/c you failed to mitigate the damges.) ***Note*** Minors under the age of 7 are not capable of negligence. 3. Rescuers a. Danger invites rescue Cardozo If a foreseeable plaintiff is put into danger, it is reasonably foreseeable that someone will attempt to rescue that person. (Rescue Doctrine) b. The risk of rescue is born of the occasion. Cardozo - If you have a duty to the person who is hurt, you have a duty to the rescuer. c. Elements of Rescue i. Defendant must cause peril or the appearance of such to a third party. ii. Peril must be imminent iii. Reasonable person would recognize the peril or appearance of peril and the plaintiff must also have recognized it. iv. The plaintiff must have exercised reasonable care in effecting the rescue. 4. Affirmative Conduct

a. The injury to the Plaintiff must result from the Defendants affirmative conduct. b. Defendants do not owe a duty of reasonable care to Plaintiffs who are in danger not created by the Defendants affirmative conduct. i. I.E. If someone is choking on a piece of steak at a restaurant you do not owe them a duty of reasonable care to try and help them. ii. Once you start the act of attempting rescue, you may create a duty of reasonable care. 5. Exam Tips 6. Special Relationship a. A Defendants special relationship with a Plaintiff may create certain duties. i. I.E. If an individual tells his/her psychiatrists that he/she intends to hurt or kill another person, the Psychiatrist may owe a duty of reasonable to care to the intended victim. ii. Other relationships: ship captains to passengers, attorney/client, doctor/patient, etc. 7. Landholders a. Some jurisdictions limit the duty of a landowner to plaintiffs injured on their land. i. Trespassers 1. Someone who enters the land without permission = the only duty a landowner owes to a trespasser is not to intentionally injure them, however, the landowner may use reasonable force to eject the trespasser. ii. Licensees 1. A landowner owes the licensee a duty to warn the individual about known, hidden artificial conditions of the land which may pose a danger. 2. A landowner only owes a duty to warn about ARTIFICAL aspects of the land. I.E. mountains and lakes. 3. Social Guests are generally licensees. iii. Invitees

1. Business Invitee - Person whos presence on the land confers or is likely to confer some benefit on the landowner = Invitee 2. Public Invitee - Someone who entered the land in response to an invitation to the general public. 3. The landholder owes invitees a general duty of reasonable care. iii. Breach 1. Definition of Breach Duty of reasonable care is breached if the Defendant fails to do something that the reasonable person wouldve done. 2. The Court decides what duty is owed, the jury decides whether it was breached. In other words, duty is a question of law and breach is a question of fact. 3. Always look at it as what the reasonable person would do in the precise factual setting of the Defendant. (I.E. the reasonable 11 year old, the reasonable Doctor, the reasonable Lawyer, etc.) 4. When arguing about breach, you usually argue about whether the reasonable person would have done what the Defendant did. 5. Special Ways to Prove Negligence a. Violation of a Statute or Negligence Per Se i. If a statute exists that protects a class of people to which the Plaintiff exists from the type of risks that occurred in that particular case. ii. You must argue what the purpose of the statute was. iii. The fact that a statute is designed to prevent one risk does not necessarily mean that it is not designed to prevent other types of risk. iv. Most Courts say that violation of a statute is negligence per se unless the Defendant can prove there is a circumstance outside of the Defendants control. 6. Presumption something the law accepts as true. a. Two Kinds i. Irreuttable Presumption (Conclusive Presumption) 1. Defendant cannot disprove negligence per se with an excuse. ii. Rebuttable Presumption

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1. Something the law accepts as true, unless the Defendant can show a valid excuse for violation of the statute. Res Ipsa Loquitor The Thing Speaks for Itself a. Proof of one thing from which another may be deduced or inferred. Circumstantial Evidence b. Bodel P got hit by a barrel that fell out of a window, P brings negligence suit. D asks to dismiss the case. Judge declares that because barrels dont roll out of windows by themselves, negligence must have existed. Since the only people around were the Defendant or one of his employees, one of them must have been negligent. The circumstantial evidence then speaks for itself and establishes a logical conclusion that the Defendant was negligent. c. Basically, an accident that would not normally happen without negligence happens. The Plaintiff is not the cause, and the D has exclusive control over the event. Therefore, one may deduce that the accident was caused by the Defendants negligence. Negligence as a Tort a. Duty of Reasonable Care b. Breach of that Duty c. Proximate Cause a combination of factual cause and legal cause i. Was Defendants conduct a proximate cause of Plaintiffs harm? ii. Cause in Fact 1. The But For Rule a. Defendants conduct is a factual cause of Plaintiffs harm if the harm would not have occurred without the Defendants behavior. 2. Substantial Factor Rule If Defendants conduct is a substantial factor in causing the Plaintiffs injury then the Defendants conduct is a cause in fact. 3. Alternate Liability Rule (Summers v. Tice) Two people shot at the same Plaintiff. Only one Defendant actually hit the Plaintiff. Plaintiff could not prove by a preponderance of the evidence that either Defendants bullet was the one that hit him. The Court reasoned that when two Defendants engage in identical acts of negligence and one of them causes harm and it is impossible to tell which act caused the harm, then both of the Defendants are held liable. a. Two or more defendants commit identical acts of negligence. b. One of them causes harm to P.

c. It could have been any of the Defendants. d. The Circumstances are such that it is impossible to distinguish which act caused the harm. e. The burden of proof shifts to the Defendants to prove that their negligent act was not the cause of the Ps injury. iii. Legal Cause 1. Foreseeability if Ds conduct was a cause in fact it is a legal cause as long as the Ps injury was a foreseeable consequence of Ds conduct. 2. Probable If Ds conduct was a cause in fact to Ps injury it was a legal cause of whatever harm is a probable result. 3. Not Extraordinary In Retrospect If D is actual cause it is a legal cause if the harm is not highly extraordinary result in retrospect 4. Start by assuming that if Ds conduct is a cause in fact then it is a legal cause and then look for reasons that it would not be a legal cause. iv. Joint Tortfeasors 1. Joint and Severally Liable Ds are liable independently and jointly liable if their actions are a cause of Ps injury 2. Apportionment of Fault Rule (some jurisdictions) each D pays the percentage of the damage they caused to the P v. Recklessness or Aggravated Negligence 1. Essential Elements a. Willful disregard of an b. Obvious Risk with a c. High Probability of Serious Harm 2. Example: If I live in a city apartment and fire a shotgun out of my window. Firing the gun creates the obvious risk that someone will get shot and hurt. I willfully disregarded this risk by firing the shotgun, and thus was reckless. vi. Slip and Fall 1. Employee or employer created, knew, or shouldve known of a danger. 2. Mode of operation: Icee Machine Hypo a. Business creates a foreseeable dangerous condition or risk by the way the business operates. d. Damage i. Describes the harm that has been sustained. 1. Injury to the human body 2. Injury to property

a. P is entitled to reduction in value, cost of replacement or repair. b. Lost profits CANNOT be recovered in negligence cases. 3. Mental suffering is not damage unless it results from a physical injury. e. Damages i. Nominal 1. Token sum that a P may receive if P has not suffered any damage or injury. ii. Punitive Damages 1. Damages awarded to P for the purposes of punishing the Defendant. 2. Can only be awarded when the D has done something to warrant punishment. a. In intentional torts if the D acts with malice then the D might be liable for punitive damages b. Malicious, fraudulent, or oppressive. c. Punitive damages are generally not awarded for pure negligence cases. i. Recklessness might result in punitive damages. 3. Compensatory Damages a. Designed to compensate the P for the damage he/she has sustained. b. Collateral Sources Rule The court does not consider any funds received from people outside of the tortfeasor or people paying on behalf of the tortfeasor. c. The Duty to Mitigate Damages when a P sustains injury, the P is required to act to prevent any further injury, Tortfeasors do not have to pay for any further preventable injury that occurred because of the Ps failure to prevent further injury. iii. Loss of Chance Doctrine 1. Loss of chance doctrine reflects an inescapable tension between traditional demands of causation on the one hand and, on the other, a concern for plaintiffs who, by the very nature of the claim, will never have available to them anything but probabilities. 2. Restatement 323 a. One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the others person or things

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is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if: i. His failure to exercise such reasonable care increases the risk of such harm, or ii. The harm is suffered because of the others reliance upon the undertaking. b. Loss of chance sues only for the chance, and not the actual outcome. Liability Without Fault or Strict Liability a. Liability imposed regardless of fault. b. Typical Cases where Strict Liability is Imposed i. Injury to a P based on Ds Keeping of a Wild Animal 1. Also one-bite rule with dogs. ii. Storage of Dangerous Substances iii. Persons who engage in Ultra-Hazardous or Abnormally Dangerous Activities 1. Necessarily involve a grave risk of serious harm. a. I.e. Using dynamite. 2. Reasonable Care does not eliminate the risk. 3. Not a common activity. iv. Products Liability 1. Manufacturer or distributor of defective products c. Defenses that Apply i. Contributory Negligence 1. Unreasonable Conduct by the P that contributed to the Ps harm. a. All or Nothing Approach i. If P contributed to the accident, then P gets nothing b. Pure Comparative Negligence i. Ps recovery is reduced in proportion to the Ps fault. c. Modified Comparative Negligence i. Ps fault = to Ds fault, then P gets nothing ii. Assumption of the Risk 1. Primary Assumption of the Risk: Occurs when the P knows the risk and voluntarily encounters it. = Complete Defense, P cannot recover. a. Nature of the Activity b. Parties relationship to the activity

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2. Only applies when the P ACTUALLY knows of the risk. Should have known is not enough. 3. Secondary Assumption of the Risk: Other jurisdictions employ assumption of the risk as a contributory negligence claim which reduces the Ps ability to recovery. Vicarious Liability a. The most common is respondeat superior i. Employee and 1. Must determine if the individual is an ACTUAL employee or an independent contractor. 2. Most important: if the hirer had some ability to control the individuals behavior. ii. Scope of Employment 1. Individuals actions must occur within the scope of employee 2. Actions that are designed to benefit an employer. iii. Exam Tips 1. If employee violates specific instructions given by the employer does not mean the employee was acting outside of the scope of his/her employment. iv. Master/Servant or Agency 1. Was the act committed within time and space limits of the agency? 2. Was the offense incidental to, or of the same general nature as, the responsibilities the agent is authorized to perform? 3. Was the agent motivated to any degree to benefit the principal by committing the act? Products Liability a. Strict Products Liability i. Product is defective and ii. Caused an unreasonable risk b. Defect i. Consumer Expectation Product is defective if it fails to perform as the reasonable consumer would expect it to perform. ii. Reasonable Safety Balancing 1. Disadvantages of its condition outweigh the advantages c. Design Defect i. Defect exists because of the way the product was defined ii. 3rd Restatement: Product is defective in design if the foreseeable risks resulting from its design could have been reduced by a reasonable alternative design.

iii. Some jurisdictions: the P has the burden of proof in showing a reasonable alternative design. d. Manufacturing Defect i. Product fails to perform to its intended design e. Failure to Warn Defect i. Product was not accompanied with an adequate warning Important Restatement Sections 431 What Constitutes legal cause: The actors negligent conduct is a legal cause of harm to another if His conduct is a substantial factor in bringing about the harm There is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm 433 Considerations important in determining substantial factor question number of other factors that contribute in producing the harm and extent of effect which they have in producing it whether actors conduct has created a force in active and continuous operation up to the time of the harm or created a situation harmless unless acted upon by other forces (natural and continuous sequence) Lapse of time (remoteness in time) Restatement 479- A whose negligence puts him in danger- in a helpless situation- can recover from who subsequently, acting negligently, harms the on 2 conditions was helpless at the time the harm occurred and unable to avoid the harm AND Restatement 480- A who, by exercise of reasonable vigilance, could discover the danger created by the s negligence in time to avoid the harm to him, can recover if, but only if, Knows of s situation, and Realizes or has reason to realize that is inattentive and therefore unlikely to discover his peril in time to avoid the harm, and Thereafter is negligent in failing to utilize with reasonable care and competence his existing opportunity to avoid the harm