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Rule Outline

Rule Outline

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If one acts _, a colorable claim for ___ exists. | A plaintiff can recover for/under __ if __ | In establishing ___, a court considers[the following factors:] / [whether __]
BATTERY 
—acts intending to cause anunprivileged harmful/offensive contact,or has substantial certainty act willcause contact, and such contact directlyor indirectly results-A contact is harmful if it injures,disfigures, impairs, or causespain to any bodily organ orfunction
-
Unlawfulness of intent functionof context
Depending upon jurisdiction, courtsmay adopt the rule of either singleor dual intent
. Single intent onlyrequires that the actor intend thecontact, whereas dual intent requiresthe actor intend the contact and theharmful consequence that results
Employment Contexts.
-
Virtual certainty
—clear andconvincing evidence E deliberatelyintended to injure, or engaged inconduct E actually knew, based onsimilar accidents or explicitwarnings specifically identifyingknown danger, was virtually certainto result in injury or death.
-
Two-Prong Laidlow Test
—sub.cert. and whether Inj. result of everyday industrial life (if so, justwork. comp.)Cases:
Vosburg
(single)
Garrett 
(sub.cert.)
Fisher 
(plate)
Leichtman
(smoke—changing social standards,
cf.McCracken
)
ASSAULT
—intending to cause harmful/offensivecontact, or imminent apprehensionthereof, and does put P in imminentapprehension.
-
§21(2)
without intent, actor notliable even though unreasonablerisky act—requires subjectiveawareness & reasonableapprehension
-
Imminence
—t, space, prox., actual—not potential. Extra-sensitive P?no liability unless D knows of sensitivity.
-
Coker Standard
—threat of violence & present ability to carryout threat
-
Hancock Standard
—unlawfulattempt w/ apparent present ability
FALSEIMPRISONMENT
intending to confine w/in boundariesfixed by actor & results in confinement &victim is conscious of confinement orharmed by it
 
-
effected by
words, acts, or both.
-
totality
—restriction to countryinsufficient
-
force
—against P or P’s family
-
threats—
threats to use force toprevent escape
-
barriers actual or apparent
-
assertion of legal authority—
reasonable belief or doubt does,moral influence will not createcolorable claim.
Whittaker 
—not necessary to applyphysical force, just constrain P
Rougeau
—P must not expressly orimpliedly consent.
Sindle v. NYC
—P falsely imprisoned notrelieved of duty of reasonable care forown safety in extricating himself fromunlawful detention.
Coblyn
—Restrained of personal libertyby fear of personal difficulty, it amountsto false imprisonment. If shop-keep hasreasonable grounds for believing Pcommit/committing larceny, detainmentallowed for reasonable length of time.
INTENTIONAL INFLICTION OFEMOTIONAL DISTRESS
1) with intent to cause or recklesslyinflicts 2) severe emotional/mentaldistress (even in the absence of harm)3) through extreme/outrageous conduct.where conduct directed at 3
rd
person,actor liable if 1) immediate familymember present at time regardless of bodily harm—or 2) any other personpresent at time suffers bodily harm.
Extreme/outrageous
: Goes beyond allpossible bounds of decency, and to beregarded as atrocious, and utterlyintolerable I a civilized community;conduct the average person is not, inour friction-filled world, expected to livewith.
Does not apply to
: Insults, indignities,threats, annoyances, petty oppressions—trivialities.
-
However, some of these maybecome outrageous givencircumstances such ascontinuousness, relationshipbetween P and D, situations inwhich constitutional rights are atstake(
Cohen v. Smith—
religiousbeliefs), the mishandling of corpses.Where D is at considerable remove,it’s questionable whether actionssatisfy reckless requirement.
o
 Transferred intent inapplicable.
Rule
: A cause of action is establishedwhen it is shown that one, in absence of any privilege, intentionally subjectsanother to mental suffering incident toserious threats to his physical well-being,
whether or not the threats aremade under such circumstances as toconstitute a technical assault 
.—
StateRubbish Collectors Association
.
PRIVILEGES
Consent Generally
Even if P succeeds in proving elementsof prima facie case, D may escapeliability by proving existence of aprivilege to inflict the harmful oroffensive contact.
Implied-by-law –
If necessary to savelife/impor. intrest
Implied-in-fact –
P acts such thatrsnble pers. would believe he consentedto invasion of rights.
Most courts
view consent as anaffirmative defense. A few require P toshoe lack of consent as part of primafacie case.
Silence/Inaction
may be consent,depending on what rsnble person wouldthink under circumstances. Failure toobject infers consent if manifest consentoutwardly, regardless of inward feelings.
O’Brien v. Cunard 
.Cases:
Bee Line, Inc
. (no rec. for stat.rape, consent w/minor)
Hackbart v.Cincinnati Bengals
(no consent toconduct outside scope of regular play)
State Farm v. SS & GW 
(no battery insex. context, consented to conduct, Dnot substantially certain contact will beharmful—dissent: whether man subst.cert. intercourse without first disclosingwould injure her even if she did notcontract herpes, did not consent toexposure to herpes )
Medical Consent
—unauthorized and performed withoutconsent = battery.
o
Bang v. Charles T. Miller 
 
non-emergency
where doc canascertain options in advance &no emergency exists, patientshould be informed of alternative treatment, givenopportunity to decide.
o
Kennedy v. Parrott 
 
non-emergency
where P cannotgive consent, no one authorizedto give consent, generalconsent given to remedyconditions proximate to theoriginal incision which, in doc’sprofessional judgment, shouldbe remedied then.
o
RS 2d 892D
—only in cases of emergency in which D has noreason to believe P woulddecline.
Self-Defense
generally
If D usesexcessive/unreasonable force, D liablefor damages arising from amount of force excessive.-D must satisfy obj. and subj.standards
o
D must subjectively believefacing threat;
o
such belief must be reasonable(subj. & obj.)
One may avoid liability for __ if [he can show__] | One can rebut a claim of __ if _.
 
If one acts _, a colorable claim for ___ exists. | A plaintiff can recover for/under __ if __ | In establishing ___, a court considers[the following factors:] / [whether __]
o
If D is reasonably mistaken, Davoids liability for reasonableforce.
no threat of death/srs bodily harm
If one rsnbly believes facing presentthreat of force not threatening death/srsharm,
-
She may use reasonable force evenif she can rsnbly avoid using forceby
o
retreating home
o
giving up rights
o
complying with commandsother has no right to enforce
force threatening death/srs bodilyharm
rsnbly believes intended to/likelyto cause death/srs bodily harm-She may use force intending tocause death/srs harm EVEN IF shecan avoid use of force by
retreating to her home
permitting other to intrude , or
abandoning a lawful arrest
o
If can retreat somewhere otherthan her dwelling place, sheshould retreat to avoid usingsuch force
Courvoisier v. Raymond 
.
Defense of OthersTraditional, minority view:
intervener “steps into shoes of personaided” and assumes the risk of mistake.
Modern, majority view:
intervener’sprivilege is independent of that held byperson to be protected. § 76.
-
May use reasonable force to protect3
rd
party as long as intervenerreasonably believes intervention isnecessary & 3
rd
party would beprivileged to use self-defense if ableto do so, even though 3
rd
party maynot be privileged to defend himself.
Defense of Possession by Force notThreatening Death or Serious BodilyHarm
Privilege not intended or likely to causedeath/srs bodily harm toprevent/terminate another’s intrusion if -intrusion not privileged-reasonable belief that intrusion canbe prevented/terminated only byuse of force-actor has requested other to desistand other has disregarded request,OR actor rsnbly believes request willbe useless or that substantial harmwill be done before it can be made.
Katko v. Birney—
indiscriminate andmalicious intent.Some states have enacted statutesallowing homicide in place of business,home, or motovehicle.
Necessity
Private Necessity 
One may claim theprivilege of private necessity when riskto one person or his property can bereduced or eliminated only bydestroying someone else’s property.
-
§197
Privilege is qualified: D mustpay for any damage.
Private Necessity 
A public officialusing private property for greater goodof the public may claim the privilege of public necessity.-
Fork 
o
Absolute privilege : Nodamages ned be paid
o
Compensation required b/c of statutorymandate/constitutionalprovision
Offensive Use
—seek damages forlandowner’s interference w/P’s person orproperty under circumstances of necessity. One cannot refuse the use of his property as a haven.
Ploof.
Defensive Use
: to avoid landowner’sclaim for intentionalinterference/trespass.
Vincent.
ACTUAL CAUSATION
General—
Whether activity is inherentlycapable of causing harm suffered.
Specific—
Whether activity specificallycaused H suff.
But-For—
But for D’s conduct, would xhave happened?
-
popular sense:
D bears someresponsibility
Circumstantial evidence
admissible toshow causation.
ALTERNATIVE LIABILITY 
 Joint and Several 
When two or more persons possibly(independently or concertedly) causedthe indivisible harm of P & P introducesevidence that one of two persons isculpable, the burden shifts to D toexonerate himself.
Sum.Tice.
-ex. A’s car collides with B due tofault of both, passenger in A’s carcan hold them jointly and severallyliable for harm of P.
-
At common law
, if P sues just oneof the Ds, D was without legalrecourse against others to compelthem to share burden of liability.
-
Thirty states
have adopted someversion of Uniform ContributionAmong Tortfeasors Act, providing aRight to Contribution, Pro RataShares of FaultWhen P is unconscious to receivemedical treatment & injured bynegligence, those in range of actors thatcould have caused injury bear theburden of disproving their own liability.
Ybarra
.
Market Share
If P joins manufacturers of a substantialshare of the market representingproduction, then burden of proof shiftsto the Ds to prove that they did notsupply the product to P. If D does notmake such a showing, then each is liablefor the proportion of their market shareas opposed to the full extent of theinuries.
Sindell v. Abbott Laboratories
.
-
modified (no need to join)
Theplaintiff need commence suitagainst only one Dand allege that 1)P was exposed to/took product; 2)product caused subsequent injuries;3) D produced/marketed type takenby P; and D’s conduct constituted abreach of duty owed to P
Collins v.Eli Lilly Co.
-
typically reject attempt toextend DES cases
(asbestos,handguns, lead paint)
-
but see
In re
Methyl Tertiary ButylEther 
(concentrations of MTBEconspiracy, oil cos.) and
Thomas v.Mallett 
(WI)(extending to lead paintmanufacturers.
 
Doe v. Cutter 
rejection
—Court usedstatutes limiting joint and severalliability to indicate public policy desiringa restriction of liability.
Concurrent and SuccessiveCausation
If two or more causal agents would—independent of each other—have causedP’s harm
-
Dillon v. Twin State Gas
—look atalternative state of the world,apportion damages according todifferentials.
Majority Rule
D liable for harm causedeven if concurrent and independentlysufficient fire originated from naturalforces played a role.
Minority Rule (
Kingston v. Chicago
)—natural/unnat.-If other cause was natural, D notliable-If manmade, J & S liability
VICARIOUS LIABILITY 
One may be liable for vicariously liablefor harm caused by another oncecausation has been established.
Master-Servant.
Consensualrelationship, one performing services onbehalf of another, and in which mastercontrols or has right to control conductof servant. (e.g., employer-employee,friendship, courts tend to shy awaywhere religious orgs and non-employeemembers involved).
-
Masters liable for torts
committed while acting within thescope of employment, no wagenecessary.
-
Early common law courts
barintentional torts of servants unlessmaster some way affirmativelysolicited or encouraged suchcontact
-
Modern courts
 
reluctant
to holdemployers liable for intentional tortsof servants
One may avoid liability for __ if [he can show__] | One can rebut a claim of __ if _.
 
If one acts _, a colorable claim for ___ exists. | A plaintiff can recover for/under __ if __ | In establishing ___, a court considers[the following factors:] / [whether __]-
Some jurisdictions
areincreasingly willingly to holdemployers liable for intentional tortsof employees.
Independent Contractor
s
(IC)
.Employer generally not liable for harmcaused by contractor’s wrongfulconduct.
-
Exceptions to IC
 
nonliability
o
Negligence in selecting,instructing, or supervising IC
o
Duty of employer, arising out of some relation to public orparticular plaintiff, isnondelegable
o
Work is specifically, peculiarly,or inherently dangerous
DETERMINGING NATURE/SCOPE
RS of Agency Sec. 220 Nature of Business Relationship-Whether employee is engaged in adistinct occupation or business-The skill required in the particularoccupation-Length of time for which person isemployed-method of payment (by time or by job?)-parties’ subjective belief of nature of relationshipRS of Agency 229 Determining Scope of Employment-Whether causal act is commonlydone by servants involved inparticular case-Previous relations between masterand servant-Whether master has reason toexpect act will be done-Similarity in quality of act done to actauthorized-Whether act is seriously criminalFrolic and Detour-Whether purpose of trip ispredominantly to serve master’spurposes-If so, whether servant’s detourdeviated to a significant degreefrom the route strictly necessary toserve that purpose
 Joint enterprisefamily purpose
—vicarious liability onauto owners
NEGLIGENCE
DUTY 
Generally, ___ owes a duty of reasonablecare to all foreseeable plaintiffs.Are there any exceptions whichheighten/lower standard duty of care?
-
heightened
:
o
special carrier (extraordinary,utmost) “one who engages intransportation of persons orthings from place to place forhire, and holds himself out tothe public as ready and willingto serve the public,indifferently, in the particularline in which he is engaged.”
NY exception: generalstandard
o
licensees, invitees
-
lowered
: trespassers,
o
minority state—auto guestlegislationIf not, then D must act as a reasonablyprudent person/corporation similarlysituated would act under thecircumstances.
-
Remember
that PrimaryAssumption of Risk (PAR) is adeficiency in P’s prima facie case,not an affirmative defense. You’dbring it up here.
BREACH
 There are several ways to establishbreach, including violations of a safetystatute, failure to follow industrycustom, or by one of the judicially-accepted balancing formulae balancingburden, foreseeability and gravity of harm, and utility(See Factor Test Sheet)
 
 To determine whether one actedunreasonably, a court may balance
-
the foreseeable likelihood of harm
-
the likely gravity of the harm
-
the utility of the defendant’sactions,
-
and the burden on the defendant of taking precautions to reduce oreliminate the ham.
Carroll Towing
3rd RS—courts regularly consider privateinterests because general public good ispromoted by he protection andadvancement of private interest.-Consideration of fairness andefficiency.High degree of gravity of harm/verysmall possibility of accident, the productdoes not outweigh the substantialburden or costs of relocating or takingprecautions against the harm.
Washington Power.
Violation of Safety Statute
Majority Rule:
Violations of a safetystate constitutes per se negligence if accident is that which the statute wasdesigned to protect against and thevictim is within the class of persons thelegislature intended to protect when itenacted the statute.
-
no cause-in-fact
Herzog
.
-
impossibility (
Bush v. Harvey Transfer Co.
)
-
violative of custom, common sense, and legislative intent (i.e.compliance poses risk of greaterharm)
-
“Sudden Emergency” occurs, Ddidn’t create, making it impossibleto comply
Minority Rule(s):
-
Violation of safety statute gives rise
to rebuttable presumption
of negligence (VT).
Sheehan v. Nims
.
-
Merely
some evidence
of negligence (Neb).
Orduna v. TotalConst. Services.
Violations of Non-Safety Statute
Majority Rule
: Breach or neglect of duty imposed by statute or ordinancemay be evidence of negligence only if there is a logical connection betweenneglect of stat. duty and allegednegligence.
Brown v. Shyne
.
Custom
Proof of customary practice, coupledwith a showing that it was ignored andthat this departure was the proximatecause of the accident, may serve toestablish liability if fact-finder finds thecustom meets the test of reasonableness.
Trimarco v. Klein
. (notnec. universal)
Consider:
perhaps courts shouldintervene when P class does not havepower to pressure D class to raisecstomary practice and standards, or benon-interventionist when P and D worktogether to set standards.
-
Policy Argument for Deference:
 Judicial deference to custom sparesthe tort system of difficult and error-prone tasks of externallydetermining appropriate standard of conduct.
o
Unwisely ignores invisible handof custom.
Medical Practice Majority Rule:
Professional standard of care is thestandard of care owed.
-
Modern trend to turn to nationalstandard to determine medicalcustom at least with respect tospecialists.
Brune v. Belinkoff 
.
o
Willl not necessarily forcloserelevance of limited recourcesin rural-impoverished areas.
Medical Practice Minority Rule:
If test is easily administered and reducesrisk of later harm, then it should beperformed.
Heller v. Carey.
Res Ipsa Loquitur 
It may be inferred that the defendanthas been negligent when the accidentcausing the P’s harm is a type of accident that
ordinarily happensbecause of 
the
negligence
of 
a classof actors
which D is a relevantmember.
Byrne v. Boadle
.
-
misapplication:
P lost all feelingfrom navel-to-knees after injection.Consequence was “unusual” but noevidence that when it did occur itwas usually produced bynegligence.
One may avoid liability for __ if [he can show__] | One can rebut a claim of __ if _.

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