Torts Outline

Chapter 2​:

I. Intentional Interference With Person or Property Intentional Torts

1. Intent

● Specific Intent: Desire/purpose to bring about [consequence] -or-

● General Intent: Knowledge with substantial certainty that the harmful result/injury would occur.

● Relative intent is the intent to cause relevant consequences (the hug in Spivey, the hitting the
ground in Garratt)

● “Egg shell” or “thin skull” rule – if you intend to cause harm to somebody, and the harm is greater
than you expected it to be, you’re responsible for the full consequences of your actions.

● Mistake Doctrine: liable for mistake even though acted in good faith. ​Ranson v. Kitner​.

● Neither insanity nor infancy is a defense for an intentional tort. She may not actually possess the
requisite intent. ​McGuire v. Almy.

Transferred Intent:
● Applies where the defendant intends to commit a tort against one person but instead commits same
tort as intended but against a different person.

● Not all torts (IIED), can be transferred, only:

1. Assault
2. Battery
3. Trespass to land
4. Trespass to chattels
5. False Imprisonment
6. Conversion

2. Battery

1. The intent to cause harmful or offensive contact and knowledge with substantial certainty that
harmful or offensive contact will occur.

2. Causation: harmful or offensive contact occurred.

● A touch on the shoulder is not considered a harmful or offensive contact because it does not offend
a person with a reasonable sense of dignity.

3. Assault

Three elements:

1. Intent to cause imminent apprehension of harmful or offensive contact.

2. Apparent ability to effectuate attempt.

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3. Apprehension is reasonable.
Exceptions:

i. Intoxication doesn’t limit someone from being able to form desire

ii. Apprehension is not fear
iii. Words alone do not constitute an assault
iv. Must have awareness
Analyzing the tort of assault:

● Threats to third persons are not actionable.

Hypos:

1. If a person has unloaded a gun and the person points it at someone who does not know that it is
unloaded, is it an assault?

a. Yes, because there is an imminent apprehension to cause a harmful or offensive contact and
there is an apparent ability to effectuate the attempt.

2. Conditional hypo: threats aimed at the future are not imminent.

Words that do not constitute an assault:

1. Jokes.

2. If the threat is not imminent or future threat.

3. The threat is conditional (if it weren’t you’re birthday, I’ll spit in your face).

4. Sensitivity.

4. False Imprisonment

1. Intent to confine,

2. Actual confinement, and

3. Awareness of confinement or is harmed by the defendants.

● i.e. not intentionally confined when negligent; person locked up in store.

● Person parked behind and may be able to open the door, not FI.

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● But, if person can’t open the door because they’re completely confined, then FI.

a. Mere moral or social pressure is not enough to satisfy false imprisonment (if you leave I’ll fire
you is not enough).

False Arrest is False Imprisonment: requires merely an intent to confine, not an intent to do so wrongfully.
Officer is liable if he reasonably, but mistakenly arrests the wrong person.

1. Defendant asserted that the legal authority (cop) to detain the plaintiff (whether or not he really had the
authority).

2. The plaintiff believed that defendant had the authority to detain him.

3. The plaintiff submitted to defendant’s authority against his will.

4. The defendant in fact lacked legal authority for the detention.

A private citizen who aids a policeman in making a false arrest can be held liable:

1. If, however, the police officer requests assistance, the private citizen will not be liable unless he knows
the arrest is an unlawful one.

2. Regardless of the unreasonableness of the arrest, no action for F.I. will lie if the plaintiff actually
committed the crime. ​Enright v. Groves​.

● The cop has a duty to investigate and afterwards enforce his legal authority.

● The neighbor accuses other neighbor for dog ordinance; cop arrests her; both cop and woman are
liable for false imprisonment.

Mistaken identity​:​ ​False imprisonment requires merely an intent to confine, not an intent to do so wrongfully.

● The officer is liable if he reasonably but mistakenly arrested the wrong person.

Duty to aid​: ​Whittaker v. Sandford

● The determination of a duty to aid is based on the following factors:

a. Degree of inconvenience

b. Effort and expenses required to provide aid.

c. Availability of other sources to aid or help.

● The defendant having to swim was unreasonable and inconvenient; had the duty to provide the boat for

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aid. There was an agreement, thus he had formed an obligation, and had a duty to aid.

Shop-keepers privileges​: Allows a merchant who reasonably believes a person has stolen merchandise to
confine the suspect.
● The privilege is lost if the means used are not reasonable:
a. If you assaulted

b. Bullied

c. Accused them publicly

d. Kept them confined for a time longer than necessary

e. Arrested them without investigation

Recoverable Damages​:

1. Compensatory

a. Loss of time

b. physical discomfort and inconvenience

c. physical illness resulting from confinement

d. mental suffering and humiliation

2. Nominal

a. If plaintiff suffered no actual damages

3. Punitive

a. To punish defendant not to compensate for the plaintiff’s loss.

Plaintiffs can also recover damages incurred during a reasonable escape therefore damages are not available
for injuries suffered as a result of unreasonable attempts to escape.

● Confinement must be complete. If there is a reasonable exit he is not confined.

a. Exit must be apparent and safe to the reasonable person

b. Can’t claim damages for using an unreasonable exit

5. Intentional Infliction of Emotional Distress

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Elements:

1. Intent to cause severe emotional distress,

2. Extreme and outrageous conduct,
3. Causal connection with injury, and
4. Severe emotional distress resulted.

● Must meet an objective standard: must be concluded to cause severe emotional distress to a person of
ordinary sensibilities.

● Physical harm not required but the emotional harm must be severe.

- Words that would require iied; defendant tells plaintiff that the defendant’s child is dead; continuous
actions of mere words would rise to the level of IIED (kid “repeatedly” saying “you stink to me” rises
to the level of iied).

For outrageous conduct directed to someone else, the plaintiff can recover if:

1. Plaintiff was present during the outrageous conduct.

2. Plaintiff is closely related to the victim; ​must be a family member​; i.e. miscarriage baby.

3. The plaintiff’s presence must be known to the defendant so that the severe mental distress could have
reasonably been anticipated by the defendant.

● The Court draws a line on the objective standard:

a. Conduct is likely to cause IIED on person with ordinary sensibilities.
b. Mere vulgarities don’t count.
c. Public utilities held to higher standard. ​Slocum v. Food Fair Stores​.
● Bodily harm: any person who is present at a beating, attack, threat made to another may recover if she
suffers bodily harm (miscarriage) from watching; even if the witness is not a member of the victim’s
immediate family.
● Third party victim:
1. a close relative of the primary victim,
2. present at the scene of the outrageous conduct against the primary victim, and
3. the defendant knows the close relative is present. ​Taylor​.

Circumstances where the degree of outrageousness is lowered:

1. When the defendant knows the victim is a member of a group with heightened sensitivities (children,
mentally ill, pregnant women, or the elderly), or
2. When the defendant is a public utility (innkeeper or common carrier) and victim is a customer.

6. Trespass to land

Elements:

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1. Intent to enter land

2. Actually entered

Intentional or unauthorized invasion to land:

1. Physical invasion without plaintiff’s consent; by human, animal or inanimate; setting in motion of
animals onto the land.

2. Entry intent requirement can be satisfied when the defendant knows with substantial certainty that he
is entering or causes an object to enter plaintiff’s land.

● No proof of damage is required to trespass to land.

● Can recover for any physical harm caused on land and if no harm was caused the plaintiff can recover
for nominal damages.

● Mistake of fact, even reasonable, does not negate intent.

● Possession of property not ownership has the right to the claim for trespass to land.

● Consent is limited by time and purpose.

Navigational airspace:

● Cannot interfere with the use and enjoyment of the land.

● A trespasser who enters the immediate airspace is considered trespass to land. ​Herrin v. Sutherland​.

It doesn’t have to be a person; it can also be an object that is in trespass (snow fence)
● Foreseeability is not a limitation for your liability (example of leaving chemicals overnight and they
explode when you were supposed to take them home overnight).

7. Trespass to chattels

Elements for trespass to chattel:

1. Intentional,
2. Interference with another’s use or possession of a chattel, and
3. Cause actual damages.
4. Defendant only has to pay damages, not the full value of the property (as in conversion).
• The difference between trespass to chattels and conversion is that trespass to chattels provides

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remedy for damage to personal property, or temporary interference with its use. Possessor is not
permanently deprived from chattel; only temporary dispossession.

• Hypo: Carter throws a rock at Puso’s car, and puts a dent on its door, he has committed trespass to
chattels, by damaging the car, but not conversion, since Puso still has the car.

● No harm to the dog, no trespass to chattel. ​Glidden v. Szybiak.​

● Electronic signals where physical contact and damages occurred by overloading the server (unsolicited
emails to its customers).
a. Intermeddling: the electronic signals are sufficiently tangible contacts
b. Damages: overload on server, loosing processing power, lost customers, cost
additional money. ​CompuServe v. Cyber Promotions.​

● Court says there is no damage/injury; no overload on the system.

● Merely intermeddling not trespass to chattel; plaintiff has to show actual damage to the chattel. In ​Intel,​
not a trespass to chattel because no damage was done.

● Though mere dispossession is considered sufficient damage; no actual damages have to be proven.
Taking someone’s car or taking someone’s horse without permission is trespass.

● Loss of possession itself, regardless of the length of time involved is sufficient to satisfy the damage
requirement to trespass to chattel. On the other hand, not in the case of mere intermeddling. ​Intel.​

8. Conversion

Conversion is an intentional interference to exercise 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
market value of the chattel.

The interference must be severe enough:

1. The defendant takes the chattel, either outright or by defrauding the plaintiff;

2. The extent and duration of the actor’s exercise of dominion or control;

3. The actor’s intent to assert a right in fact inconsistent with the other’s right to control;

4. Moves a chattel from one place to another;

5. Transferring possession from plaintiff to someone else;

6. You refuse to return the chattel to the plaintiff; and/or

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7. You destroy or substantially damage the chattel.

To determine the seriousness of the interference of conversion:

1. Look at the duration of the laws;

2. Whether the defendant acted in bad faith;

3. The degree of harm to the chattel; and

4. The degree of inconvenient expense to the plaintiff.

The ways in which an actor may convert a chattel:

1. Acquiring possession;

2. Damaging or altering;

3. Use;

4. Receiving it;

5. Disposing of it;

6. Misdelivering it; and/or

7. Refusing to surrender it.

Mistake of fact is not a defense:

1. As long as the assertion of control is intended, it does not matter if the defendant as to who owns the
item is irrelevant, no matter how reasonable. The fact that the defendant does not give the car to the
plaintiff is conversion.

2. Good faith, the defendant could be liable for conversion of his good faith. However, good faith is a
factor that is considered in determining the seriousness of the interference.

3. Destruction will always be a sufficiently great interference that will qualify for conversion. The damages
are calculated by the fair market value of the item at the time of conversion.

Innocent conversion: an individual may be subject to liability for conversion although he was not subjectively at
fault. This can occur in at least two ways:

1. When a defendant intends to affect a chattel in a way inconsistent with the plaintiff’s right of control, by
mistake, will still render the defendant liable for conversion; (i.e. garage delivers car to person who
presented a stolen duplicate parking ticket).

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a. Some special exceptions protect bailees and servants who deal with the chattels of third
persons under directions from their bailors or employers; for commercial convenience and
without inquiry as to the title of the person from whom they are received; a garage accepting
and storing a stolen car is not held liable.

b. This privilege does not apply when the goods are in the hands of the bailee or servant, having
been claimed by the bailor or employer and the true owner. In this case, the bailer or servant is
required to deliver the car to the right person; if at fault, the law provides interpleader or other
statutes that permit the goods to be deposited in court.

2. Good faith purchasers (GFP): those who buy goods not knowing they were converted.

a. GFP are protected if the goods were obtained by the converter through fraud rather than theft
because the title passes to the bona fide purchaser.
b. When the first seller discovers the fraud, he can rescind the sale and take back the title, except
when the bona fide purchaser acquires both the title and possession from the defrauding party
(final seller).
c. The UCC provides that a bona fide purchaser is protected in a sale by goods from a merchant
“who deals in goods of that kind.” The bona fide purchaser is not held liable; the merchant is
held liable.

● Necessity on Demand

a. The ​minority​ ​hold that upon demand of an item possessed by a bona fide purchaser is not
enough to be a serious defiance of the owner’s rights and hold that the bona fide purchaser is
liable only if refusing to return the goods on demand.

b. The ​majority ​hold that conversion occurs as soon as the defendant takes dominion and control
over the goods in a manner inconsistent with plaintiff’s ownership.

● Returning a Chattel (Majority)

a. When a converter returns the chattel to the owner, does not bar the action for conversion, but it
may reduce the damages. If the chattel is returned to the owner in the same condition as when
it was taken, and not deprived of value, then the plaintiff suffered no special damage and the
defendant may be held only for nominal damages.
b. When the plaintiff refuses to accept the offered return, the defendant cannot force the chattel
upon the plaintiff and the defendant has thus “bought something.”
c. The payment of a chattel by a converter to the original owner effectuates a common law ​forced
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sale​ and the plaintiff may not seek punitive damages.

● Exceptions

1. literary property
2. scientific invention
3. secret plans for conduct of commerce. ​Pearson v. Dodd.​
CONVERSION WORKSHEET

A.
1. O leases his airplane to L for the purpose of transporting blankets from Michigan to Florida. L uses the
plane instead to smuggle drugs to Columbia. L is arrested by the Columbian police and the plane is
seized. While in police custody the plane is severely damaged. O sues I, the insurer, for
reimbursement. I claims it is not required to pay because a clause in the policy excludes liability for
damages caused by conversion. Conversion? If so, why?

Yes. ​Exceeding his permission​. Differs from trespass to chattels due to substantial interference and exceeded
the terms of the lease. Conversion occurred before the plane was seized because the plane was in Colombia
and not in Michigan; thus exceeding his permission and the terms of the lease.

2. Suppose L leased the plane to fly to Detroit and, instead, flew to Lansing. Suppose while in Lansing the
plane is destroyed when an ambulance on the airfield goes out of control. Conversion? If so, why?

Yes. In a situation, where you have minor deviation of the lease, if as a result the property is destroyed, you
are liable for conversion.

B.
1. T steals O’s car and parks it in B’s parking garage. T returns and demands the car from B. B gives it to
him. Conversion by T? By B?

Stealing is conversion, intended to exercise dominion, and exceeded possession of the chattel.

2. Suppose T has parked the car in B’s garage but before T returns, O comes to the garage and demands
the return of his car. B refuses. Conversion by B?

If the defendant acted in good faith he is not liable? False. Commercial privilege, he is not held liable. No
conversion.

3. Suppose O and T arrive together and both claim the car T parked in B’s garage. B refuses to give the
car to either until he investigates O’s claim. After doing so, and in the reasonable belief the car belongs
to T, B delivers it to him. Conversion by B?

Can refuse to give the car until he has reasonable belief but must give him the right car. If not, he is held liable.
The safest method to prevent liability would be to contact police and have them take care of the situation by
having them file an interpleader action.

C.
1. T is an acquaintance of O’s. At dinner one night at O’s home, T persuades O to sell him his vintage
Rolls in return for rights to a bogus mine in Bolivia. The next night, T returns to steal O’s valuable art
collection, a unique two-carat diamond ring (stamped with the initials of O’s wife), and the passbook to
his Swiss savings account. On the way home the diamond ring drops from T’s bag. The ring is
subsequently found by F, who takes it home. T sells the Rolls to B who purchases the car without any

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idea of the nature of the transaction between O and T. T sells the art collection to C, a private collector
who recognizes O’s collection but who covets the pictures. C sells one of the pictures to D, who
purchases without notice of its stolen status. Meanwhile F, who greatly admires the ring, decides to
wear it to the fancy ball that she is attending. At the ball she encounters T who, recognizing the ring,
persuades her to sell it to him for a substantial amount of money (though well below the ring’s market
value).

a. What, if anything, has been converted?

Everything has been converted; rolls, art collection, diamond ring, and the passbook.

b. What are the rights and liabilities of O, T, F, B, C, and D with regard to:
1. the Rolls?

O’s fraudulent sale to T for a bogus mine, then the sale to B (BFP). B is not liable because B has title and
possession of the chattel, cutting of the equitable right of possession by O.

2. the art collection?

T is a converter; C is MFP and converter (did not receive title); D is BFP and converter (did not receive title)

3. the diamond ring?

● F: Serious interference with possession and intent to control. Converter because took possession,
treating with dominion control as her own over chattel by selling it, depriving owner of dominion or
control; even though it was a mere finding and unintentional.
● Could’ve turned into the police station (holds for 30 days), or person who last had it, or the neighbor.
● When do you find that the bailee is a converter? When she sells it.

4. the passbook?

● What can be converted?

o Passbook is tangible object worth only $2 dollars.

o Idea is that the law of the tangible rights applies to the symbolic tangible rights pertaining to the
chattel.

o If you converted the chattel, you have the right to force sell item.

II. Privileges to Intentional Torts

1. Consent

● If plaintiff gives permission, then no longer tortious.

● Express (Actual) Consent: where the plaintiff has expressly shown a willingness to submit to
defendant’s conduct.

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a. Consent by Mistake: valid defense unless defendant caused the mistake or knows of the
mistake and takes advantage of it.

b. Consent Induced by Fraud:

1. essential matter: invalid defense

2. collateral matter: valid defense
3. if both plaintiff and defendant are unaware of the misrepresentation, neither can be held
liable.

c. Consent Obtained by Duress: may be held invalid however, threats of future action do not
constitute legal duress sufficient to invalidate the express consent.

● Implied consent: reasonable person standard

a. Apparent Consent: consent is that which a reasonable person would infer from plaintiff’s
conduct or by usage and custom.
b. Consent Implied by Law: where action is necessary to save a life (emergency room).

● Capacity required: incompetents, drunken persons and infants are incapable of consent to tortious
conduct (must have parent or guardian’s consent).

● Consent can be determined by:

a. The circumstances of the act

b. Implied acts or words
c. A prior course of conduct between the parties
d. Custom
e. Whether a reasonable person would believe that the plaintiff consented
f. Whether the defendant exceeded the scope of the consent given

● Defendant gave plaintiff vaccination without consent or objection (consent under duress):

a. Trial court: directed verdict (said that no reasonable jury would find for the P).
b. If plaintiff’s behavior (silence) in connection with the surrounding circumstances indicated
consent, then defendant’s reasonable inference is not tortious.​ O’Brien​.

● No consent because the act was an intentional blow because of anger: no privilege on the part of the
defendant, and conduct was prohibited in rules of game.
a. It’s presumed that players consent to conduct within the rules, but not conduct that’s outside the
rules of play. In football, you may have an intentional tort in conduct that is outside the rules or
normal customs of the game. ​Bengals​.

• Doctor operates on left ear, had consent to work on right ear:

a. Patient has authority over their body

b. You have to wake a patient up and make sure that they’re okay with the new, different thing
you’re planning to do.
c. If you don’t, you may be found liable for “​technical battery​” (not negligence).
d. Consent may be implied if a procedure is necessary to preserve life or limb and the person is
unable to give express intent. ​Mohr v. Williams.​

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• Sues for doctor bringing in someone else during child birth.

● Consent is negated if obtained by deceit or fraud (consent by mistake). ​De May v. Roberts​.

a. You eat poisoned brownies. No consent because you didn’t know about the poison.

2. Self-Defense

● The conduct of another is the trigger.

● Privilege to use reasonable force to prevent imminent harmful or offensive contact
● When Defense is Available:

a. Defendant must reasonably believe that force is necessary to protect himself against battery.
b. Provocation (words) do not justify battery, but may limit liability to actual damages.
c. Retaliation Not Allowed: once threat is over, privilege terminates
d. Retreat Not Necessary:

i. Majority​: Defendant has no obligation to retreat to the wall, and may stand his ground and use
reasonable force.
ii. Minority​: Requires retreat before using deadly force, but doesn’t require retreat in your dwelling
place.

• Mistake: If made a mistake in good faith and it is reasonable then not liable, but if it is not reasonable
then you are liable
• To justify force with deadly weapon you must have a reasonable apprehension of loss of life or great
bodily injury.

3. Defense of Others

• Defense of others: use of reasonable force to avert the battery of another.

• Must have reasonable belief that the person being aided would have the right of self-defense (step into
the shoes of the person being aided).

• If aiding the aggressor, may be liable, unless:

1. the mistake is reasonable or

2. they would have had the privilege of self-defense.

• Can use reasonable force to defend another even when he is mistaken in his belief that intervention is
necessary, so long as his mistake was reasonable.

4. Defense of Property

• Privilege to defend one’s land against intruders is limited to unlawful intrusions:

a. Request to leave usually required: unless circumstances make it clear that the request would be
useless.
b. Liable for reasonable mistake: If safety inspector is on land, he has legal right to be there, and if you
by mistake use reasonable force to get him off, you are liable because he had the legal right to be

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there unless you are misled by the person.

c. Limits force to eject plaintiff from property into a position of unreasonable physical danger (throwing
boy off a railroad train at 30mph).

• Force:

a. Privilege does not extend to use of deadly force unless the intrusion becomes threatening to bodily
harm of occupiers.
b. Can’t use deadly force to protect property (some exceptions with property of great value).
c. Devices can’t be used, unless defendant had been there and there was danger of bodily harm.
d. Couldn’t use rigged shotgun; must be same force acceptable as if property owner was present.
e. If you tell invader to leave and they don’t, ∆ can then protect property through reasonable force
f. Even a warning sign would not have given them the privilege. ​Katko v. Briney​.

5. Recovery of Property

• Can use force to regain property if:

a. Plaintiff obtained property by fraud (wrongful dispossession);
b. Reasonable manner of detention (reasonable duration and for the purpose of investigation);​ ​and
c. Must have fresh pursuit (no undue lapse of time).

• Reasonable force should be minimal because the wrongdoer does not have a privilege of resistance.
• Timely demand required; unless the circumstances make it clear that a request would be futile or
dangerous.
• Recover only from wrongdoer; if innocent party has the chattel, cannot recapture.
• Merchant privilege:
a. Detain for reasonable investigation a person whom he reasonably believes to have taken a chattel
unlawfully (some states say not more than an hour)
b. Have to do in the parameters of the immediate vicinity (before left the premises)
c. Reasonable force short of bodily harm is allowed. ​Bonkowski v. Arlan’s Department Store​.

6. Necessity

• Anyone can invoke necessity, but if you’re wrong, you’re liable.

• Two types:
a. Public: wholly prevents defendant from being liable for damages.
b. Private: preserves property at the expense of others - will be liable for damages but not for
intentional tort.
• Had to blow up house in order to not spread fire.
a. Destroying the house was necessary
b. Public policy more important than individual property; there is a privilege when there is an imminent
danger and/or a real public necessity.
c. Specific Necessity: Constitutional provisions against taking private property for public use do not
apply to action under police power to protect the public against the spread of contagious diseases
or devastating fires and floods. ​Surocco v. Geary​.
• Defendant prudently and advisedly availed itself to the plaintiff’s property for the purpose of preserving
its own more valuable property, and the plaintiffs are entitled to compensation for the injury done.
a. even when the intentional entry onto property is privileged and not tortious D has an obligation to
compensate P. ​Vincent v. Lake Erie Transp. Co.​ ​(boat tied to dock in storm).

7. Authority of Law

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• Police, military, prison officials, regulatory inspectors, or mental health facilities officials may act under
this privilege engaging in conduct that otherwise would be tortious--if commanded or authorized by law
to do what he does, he is not liable for doing it.

• Arrest:

a. arrest may be made under warrant [signed order issued by a court directing that the person to be
arrested] is privileged if:

i. court had jurisdiction,

ii. warrant is fair on its face (formally complete and consistent), and
iii. officer uses proper procedures in making the arrest.

b. or without a warrant:

i. May be made by police or a private citizen,

ii. Limitations:
○ prevent a felony or a breach of the peace that is being committed or reasonably appears
about to be committed in his presence
○ police: has information that affords reasonable grounds for thinking that a felony has
been committed and that he has the right person/citizen: if a felony has in fact been
committed and he has reasonable grounds to suspect the person being
arrested--authority depends on the fact of the crime and he must take the full risk if no
crime
○ past breach of peace that isn’t a felony only if the offense was committed in his presence
and he is in a fresh pursuit
○ sometimes an officer can arrest on a misdemeanor if committed in his presence
○ even if an arrest would be lawful, an officer may be liable if uses excessive force

8. Discipline

● Parent and Child:

a. Conduct is within the privilege based on a number of determinants:
i. privilege also covers those who are temporarily responsible for children--amount of force
may be less than that of a parent
ii. teacher’s privilege to discipline is more predicated on the need to maintain reasonable
order in the classroom
iii. the discipline may be exercised even if the parent objects
iv. an instructor will be subject to liability for using excessive force

b. Variables:
i. nature of punishment
ii. conduct of student
iii. age and physical condition
iv. motive of instructor

9. Justification

● School bus driver, entrusted with the care of his student passengers and the custody of public property,
has the duty to take reasonable measures for the safety and protection of both. ​Sindle v. NY City

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Transit Authority.​
● Defendants had sufficient reason to believe that she was a danger to herself or others; there was a
reasonable means of escape; dissent says she had a right to her freedom to make bad choices
(​Peterson v. Sorlein-​ -[cult #1])
● He was falsely imprisoned without justification; there were other legal means that the parents didn’t try
before snatching him (​Eilers v. Coy​--[cult #2])

III. Negligence

A. Duty​: to use reasonable care.

a. Palsgraf: Majority: Cardozo’s view that defendants owes a duty to foreseeable plaintiffs within
the circle of foreseeability or zone of danger.

b. Palsgraf: Minority: Andrew’s view that everyone owes to the world at large the duty of refraining
from those acts which unreasonably threaten the safety of others.

B. Standard of Care

1. Reasonably prudent person standard acting under similar circumstances.

● Objective standard: nominal damages cannot be recovered in a negligence action if no actual damage
has occurred.

a. Rescue Doctrine​: If you imperil someone innocently or negligently, you must rescue; exception to
the no duty to rescue.
b. The Hand Test
1. P:​ The probability that it will break away
2. L:​ The gravity of the possible injury
3. B:​ The burden of adequate precautions
- Liability depends upon whether ​B<LP​.​ ​US v. Carroll Towing Co.

Exceptions to objective prudent person standard

● Emergency​ -​ If performed by a person acting under an emergency suddenly faced with a danger.

● Physical Disability​ - one is required to act as a reasonable person who is blind or other physical
disability – reason: disabled are entitled to live in the world and have some allowance for their disability.

● Intoxication​ -​ Being intoxicated does not make you negligent for anything that happens. But, it does not
excuse you of negligence – because standard of care is that of a reasonable prudent person.

● Child Standard ​ - (1) Inherently dangerous activity, (2) Conduct usually engaged in by adults.
a. Minority: Held to standard of a child of like age, intelligence and experience acting under similar
circumstances
b. Majority: Reasonably prudent person adult standard.

● Mental Disability​ ​- Regular standard of care, unless insanity/disability was sudden, unknown of and
unforeseeable.
a. Courts will take mental disability into account for plaintiff more than defendant. Reasoning:

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allowance for plaintiff is because defendant is wrongdoer – plaintiff should not be precluded from
recovery because deficiency precluded him from taking precautions of a reasonably prudent
person.

2. Children

● The reasonable person standard specifically takes account of age when defendant is a
minor.
● Children in adult activities, however, are required to conform to an adult standard of care.

3. Statutory

● A statute that provides for civil liability supercedes the common law of torts.
● Majority​: negligence per se, establishes that the defendant breached his duty to plaintiff.
● Minority​: violation of a statute by defendant raises either a rebuttable presumption (plaintiff wins unless
defendant introduces enough evidence to overcome the presumption) or as prima facie evidence
(plaintiff wins unless defendant introduces any evidence, but plaintiff retains burden of proof if
defendant offers evidence).

4. Professional

● Professionals are held to a higher standard of care to the public or to their customers.
● Attorney​:
a. An attorney impliedly represents: (several components for lawyers)
1. He possesses the requisite degree of learning, skill and ability necessary to the practice of his
profession and which others similarly situated ordinarily possess.
2. He will exert his best judgment in the prosecution of the litigation entrusted to him
o an attorney who acts in good faith and in an honest belief – is not o for mere error of
judgment
3. He will exercise reasonable and ordinary care and diligence in the use of his skill and in the
application of his knowledge to his client’s clause. ​Hodges v. Carter​.
o Malpractice for failure to:
1. Possess knowledge and apply that knowledge
2. Exercise reasonable care/skill in undertaking
3. Must exercise good faith judgment

● Physician​:
a. Three views of the physician standard of care:
1. Traditional: strict liability rule, compared to the custom of others who practice in the same
community
o Problems with rule: would have to find an expert in your community to show what the
standard of care was
2. Modern/Majority: “Similar Community in Similar Circumstances” compared to the custom of
others in similar communities
o Doesn’t focus on locality but uses it as one of the factors to be considered, along with
advances in profession, availability of facilities and whether health care provider was a
specialist or general practitioner.
3. Some jurisdictions: “National Standard”, compared to the custom of any community
o especially for specialists who are certified by the national board within their specialty
area

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C. ​Breach of Duty – if breach of duty, must see causal connection

● A failure to use reasonable care constitutes a breach of that duty.

1. Res Ipsa Loquitor (if applies)– “​The thing speaks for itself”

● The plaintiff must establish that:

i. The event that caused plaintiff’s injury was one which would not ordinarily occur in the absence
of negligence; and
ii. It is more likely than not that it was defendant’s negligence that was responsible for the
injury-causing event and the plaintiff was required to show that defendant was in exclusive
control of the instrumentality that inflicted injury upon plaintiff.

D. Causation
a. Causation in fact

i. But-for test

ii. Substantial Factor Test: sine qua non (“without which it is not”)

b. Proximate cause

i. The majority holds that the defendant owes a duty of care to foreseeable plaintiffs who are
within the zone of danger. ​Palsgraf​. The minority allows recovery to any person thereby harmed
due to breach of defendant’s duty of care.

ii. Unforeseeable Extent of Harm

1. “Egg shell” or “thin skull” rule – if you intend to cause harm to somebody, and the harm
is greater than you expected it to be, you’re responsible for the full consequences of your
actions. If the defendant commits a tort against the plaintiff without a complete defense, the
defendant becomes liable for any injury that is magnified by the plaintiff's peculiar
characteristics.

2. Superseding Cause​: an unforeseeable, intervening cause that breaks the chain of

causation between the initial wrongful act and the ultimate injury, and thus relieves the
original tortfeasor of any further liability.

3. Intervening Cause​: a defendant will be held liable for harm caused by foreseeable
intervening forces.

E. Damage

● A plaintiff must affirmatively prove actual damages. Nominal damages are not available, and
punitive damages generally are not allowed.

F. Defenses of Negligence
1. Contributory Negligence

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