1

TORTS I OUTLINE
CHAPTER 1: AN OVERVIEW OF MODERN TORT LIABILITY
OVERVIEW OF TORTS: • Tort Law – Concerned with liability for personal injuries and property damage, and provides compensation for harms such as mental distress, impairment of reputation, and non-tangible economic injuries. Burden of Proof: Preponderance of the evidence Largely a state common law subject 1. Where state legislation does not cover situations, legal precedent by the state courts of a state will decide the fate of parties involved (stare decisis) 2. Federal involvement mostly is concerned with the limits of the Constitution 3. Restatement of Torts is a highly persuasive authority for torts law 3 CATEGORIES: Intentional Injury, Failure to Exercise Care (Negligence & Recklessness), and Strict Liability Liability Based on Fault: Intentional torts, negligence and recklessness Competing Public Policy on Tort Law (pp. 7-10 SATL): -Basing liability on fault, liability proportional to fault, to deter accidents, cost of accidents should be spread broadly, shifting losses to deep pockets, foster predictability, facilitate economic growth, promote administrative convenience and efficiency, discourage waste of resources, accord due deference to executive & legislative branches, and full compensate victims Trends in Tort law: - “Revolution” in tort doctrine in mid to late 20th Century - Failure of care damages more receptive to plaintiffs in late 20th Century (70’s to late 80’s) - Pro-Defendant courts and tort law reform in state courts and legislatures in 90’s to present

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A. INTENTIONALLY INFLICTED INJURY Intent – the requirement necessary to establish intentional torts; purpose or knowledge 1. Purpose – personal desire on the part of the actor to produce a particular result; OR 2. Knowledge- actor is substantially certain that a particular result will occur, EVEN if that result is not desired Garrat v. Dailey (Supreme Court of Washington, 1955) • A 5 yr. old boy moved a chair out from under an elderly woman while she was trying to sit down. The woman sued the boy for battery.

2 • The Supreme Court of Washington held that the child was liable for battery if he either desired for the woman to hit the ground (purpose) or was substantially certain that she would suffer a forcible landing (knowledge). On remand, the trial court concluded that the elderly woman had begun a slow process of sitting down, and the boy knew with substantial certainty the woman would fall. The boy was held liable.

Vosburg v. Putney (Supreme Court of Wisconsin, 1891) • A school boy deliberately swung his foot across the aisle to touch a classmate (Putney), and subsequently caused severe injury to Putney. Because the defendant intended to cause un-consensual contact (a result prohibited by the law of battery), he was held liable for the damages, even though the defendant did not intend to cause such serious harm to the plaintiff’s leg. B. ACTIONS BASED ON LACK OF CARE – NEGLIGENCE & RECKLESSNESS 1.Negligence – failure to exercise reasonable care under the circumstances; conduct which creates an unreasonable risk of harm • If the risk can be reasonably perceived, the actor muster exercise due care to prevent the risk from coming to fruition • Plaintiffs may seek negligence when it is impossible to prove an intentional act (since there was no purpose or knowledge intent), but may be able to prove negligence • Primary factors to consider for lack of care are: 1. Foreseeable likelihood that it will result in harm 2. Foreseeable severity of the harm that may ensue 3. Burden that would be borne by the person and others if the person takes precautions that eliminate or reduce the possibility of harm Doe v. Roe (Court of Appeals of California, 1990) • The defendant knew he had herpes at the time he had sex with the plaintiff. Because the asymptomatic transmission of herpes was foreseeable, the defendant’s failure to take precautions or disclose the disease was negligent. Cohen v. Petty (Court of Appeals of D.C., 1933) • **Example of a plaintiff’s failure to carry the burden of proof of negligence • The driver of a car was unexpectedly stricken ill, and suddenly exclaimed to his wife, “Oh Tree, I feel sick” and then fainted. The plaintiff, a passenger, was catapulted from the driver’s (defendant) car when it crashed, and sued for negligence. • The plaintiff failed to prove negligence because she had no evidence the car was driven at an unreasonable speed or that the defendant could have anticipated the seizure he had. • The court held that there was no reason to foresee the danger (the fainting), the failure to take precautions was not a failure to exercise due care.

3 2. Recklessness – more blameworthy conduct than negligence • Subjectively defined: Conscious disregard of known risk of serious harm • Objectively defined: extreme lack of care • Precaution that would eliminate or reduce the risk of harm is so slight relative to the magnitude of the risk, and failure to avoid such harm is reckless (Could have been used in Doe v. Roe) • Subject to punitive damages like intentional torts, but negligence cannot • Easier to establish negligence, but easier to establish recklessness than an intentional tort 3. Contributory Negligence, Comparative Negligence and Comparative Fault Violenti Non fit injuria: “To one who is willing, no harm is done” Contributory Negligence: Plaintiff’s failure to exercise care for personal safety or selfprotection for himself contributed that plaintiff’s injury or loss. • USE SAME ELEMENTS OF NEGLIGENCE AS YOU WOULD AGAINST D • In common law states, an affirmative defense (100% bar to recovery) used by defendant to completely bar recovery by plaintiff despite fault by defendant • In a majority of states, a partial defense used by defendant to prove partial or majority of plaintiff’s fault contributed to his injury, and bars some or all recovery • Applies to negligence, recklessness, and strict liability • Does NOT apply to intentional torts -Pure Comparative Negligence: A contributorily negligent plaintiff is not barred from recovery, but damages are reduced in proportion to the plaintiff’s fault • A plaintiff 65% responsible for an accident can recover only 35% of any damages sustained -Modified Comparative Negligence: There is a 50% threshold which bars recovery to any plaintiff if his fault exceeds that percentage; a plaintiff below 50% liable for the injury will recover proportionate to his fault • A plaintiff 65% responsible cannot recover; but a plaintiff 49% responsible for his injury can only recover 51% of the damages sustained Comparative Fault: Contributory negligence may be invoked to offset liability for recklessness, negligence (pure or modified) and strict liability. • Does NOT apply to intentional torts • Partial defense in non-common law states • Texas is Modified Comparative Fault 4. Assumption of the Risk: Applies to negligence, recklessness, and strict liability • At Common law, a full defense (100% bar to recovery) for defendant to negligence, recklessness, or strict liability • In a majority of states, a partial defense for defendant to negligence, recklessness or strict liability

4 - Can be 100% bar to liability in some situations for comparative states **Exists if the Plaintiff… 1. Subjectively appreciated the danger 2. Voluntarily chose (NOT coerced) to confront it; AND 3. Manifested a willingness to relieve the defendant of any obligation to exercise care OR had no expectation that care would be exercised on his behalf

Contingency Fee Contracts – Used predominantly in tort law cases, gives a lawyer a financial interest in his client’s case that is dependent upon its success. If the lawyer wins the case and recovers money for the client, the lawyer gets to keep a percentage of the recovery ---generally 30-35% • The contract will usually stipulate no “upfront” fee to be paid to retain the tort case attorney under contingency fee contracts C. STRICT LIABILITY Strict Liability: Liability without fault 1. Products Liability: liability to manufacturers for harm caused by defective products 2. Respondeat Superior: Employer liability imposed for the torts of their employees within the scope of employment • “Let the master answer” • Depends on the time and place of the tort and whether the employee’s conduct was actuated in part to serve the business purposes of the employer • Employer NOT usually liable for employee’s intentional torts committed outside scope of employment 3. Affirmative Defenses: Consent, assumption of risk, contributory negligence, or comparative fault Hossenlopp v. Cannon (Supreme Court of South Carolina, 1985) • “Dog Biting Case” • The court adopted a rule of strict liability (in absence of legislation) when it held that a dog owner was liable for a dog bite inflicted by his own dog on another, regardless of whether the owner knew that the dog had a tendency to injure or had committed prior injurious actions D. CONSEQUENCES OF CLASSIFICATION OF A TORT 1. Scope of liability: An intentional tortfeasor is more likely to be found responsible for subsequent injuries suffered by a victim than one who is sued for negligence

5 2. Worker’s Compensation: In states that have adopted workers’ compensation, persons injured in on-the-job accidents are compensated pursuant to special statutory schemes, rather than by tort law • A “covered employee” whose injury arises out of an injury from the scope of his employment is entitled to a reward from his employer’s insurer 3. Punitive Damages: Damages intended to deter the defendant or others from committing similar tortuous acts; available only in the most egregious cases, available in… • Intentional Torts: Assault, battery, trespass to land, trespass to property, false imprisonment and conversion • Recklessness • Other acts where evidence establishes a high degree of blameworthiness; NOT FOR NEGLIGENCE 4. Liability Insurance: Insurance that pays amounts which the insured (owner of policy) becomes liable to pay accident victims • Mostly covers the costs of defending tort actions on a policy holder’s behalf, such as providing an attorney to handle the claim against the policy holder • Most liability insurance policies do NOT cover intentional torts committed by policy holders • **The language of most policies gives the right to decide whether to settle to the insurer, but the courts, noting the conflict between the interests of the insurer and the insured, have created a cause of action for “bad-faith” conduct in settling. -“Bad-faith” settling: When the insurer fails to act reasonably in deciding whether to reject a settlement offer by the plaintiff against the policy holder, the insurer will be liable for amounts in excess of policy limits. • No court has yet held insurer strictly liable for settling within the policy limits whenever a judgment exceeding that limit is awarded • Crisci v. Security Insurance Co. of New Haven (Supreme Court of CA, 1967) 1. The plaintiff (Crisci) was an owner of an apartment complex where a tenant was injured and sued the plaintiff for negligence. The plaintiff asked her insurance to settle by it and the defendant’s (Security) attorneys warned the defendant of a possible large verdict. 2. The jury gave a verdict far past the plaintiff’s policy limit. The plaintiff suffered mental distress and was forced to sell all her possessions to cover the verdict. The court held that an insurance company had breached its duty to consider the interests of the insured in proposed settlement limits, and that the insurer would be liable for all costs past the policy holder’s limit and her injuries suffered. • First Party Insurance: Liability insurance that creates a form of loss-spreading -Example: life insurance, medical insurance, fire insurance, and collision/ comprehensive coverage for automobiles

A federal government meat inspector (defendant w/ US govt. Plaintiff may obtain child’s assets in the future (But judgment may be dischargeable in bankruptcy) 4. Intent to Injure: Proof of intent to harm is NOT prerequisite to intentional tort liability • Lambertson v. OR -Knowledge: Actor knows with substantial certainty that his act will bring a prohibited result **Basic intentional torts require intent. owners give up right to sue but insurers cover victims damages 5.“No fault” automobile insurance is first party insurance that is used to displace tort system in some states. either by purpose or knowledge on the part of the actor 1. Statute may transfer liability to parent in whole or in part • Some states do NOT extend liability for torts committed by children under the age of five CHAPTER 2: BASIC INTENTIONAL TORTS A. THE CONCEPT OF INTENT -Purpose: Desire on part of the actor to bring about a certain result. United States (US Court of Appeals -2nd Circuit. Damages may be covered by parents’ insurance 2. Personal Liability: Concerted action (parent encourages child’s tortuous behavior).) in horseplay jumped on the back of the plaintiff and accidentally caused the plaintiff to strike a meat hook and sustain major injuries. . Parental Liability for Torts of Minor Children: • General Rule: A parent is NOT liable for the torts of a minor child by the mere fact of parentage • Possible Bases for Liability: 1. TX statute limiting damages parent is liable for to property damage committed by minor children) • Why Sue a child? 1. Child may have non-exempt assets 3. 1976) 1. failure to control child by parent(s) 3. Vicarious Liability: employer (parent)/employee (child). principal (parent)/agent (child) 2.6 . Statutory Liability: State laws limit the amount of damages parents can be liable for in certain cases (ex.

Mistake and Privilege: If the defendant can assert privilege to committing the intentional tort. 1888) 1. • Ranson v.7 2. The plaintiff was unable to recover for negligence since the court held the act was a battery. defense of others. The court held the defendant’s liable for trespass to chattels even though the defendants were acting in good faith since the intended result of the bullet striking the animal was wrong. recklessness. Kitner (Appellate Court of Illinois. the actor may be liable for recklessness. The plaintiff sued for negligence. does not by itself serve to absolve the defendant of liability. defense of property. The defendants shot the plaintiff’s dog by accident. recapture of chattels. 3. private necessity Induced Mistake: Conduct based on a mistake induced by the plaintiff does NOT ordinarily give rise to liability. 2. 3. As the probability that intent is less present or the consequences will follow. and negligence is a matter of degree. not just the “acts”. • • . 1. • Degrees of Probability: The difference between knowledge (intentional tort). If purpose or knowledge is proven on the part of the actor. public necessity. and the Federal Torts Claim Act only allows the federal government to be sued for negligence by employees acting in the scope of their employment. that privilege to the act in question will defeat the plaintiff’s action. not the inadvertence of killing the dog. Intent and Mistake: Mistake of fact does NOT absolve the actor of liability if the intent to cause the result was wrong. 2. even if its reasonable or unavoidable. then liability for an intentional tort is present. so long as the result was intended. When intent is not present. but an unreasonable risk is created. NOT intentional torts. but the court held that the defendant had committed battery and the intent necessary for battery is the intent to make contact without consent. Motive to commit a particular result or harm to the victim is NOT required in an intentional tort Intention has to do with the results. thinking that the dog was wolf. the probability of consequences will place the actor liable for negligence. NOT the intent to cause injury. **The fact that a defendant makes a mistake in good faith. -Examples: Self-defense. not withstanding proof of intent. no liability for false imprisonment. -Examples: Cop arresting a person who misrepresents himself as the suspect the Cop was looking for. • • 2.

Transferred Intent: If defendant intended to commit one of the five trespassory torts. Defendant claimed the insane can’t be liable for torts they commit. an insane woman. could be liable for damages since the defendant had the ability to entertain intent. but actually commits another of the five. In regards to the insane. the intent is “transferred” to the trespass that was actually committed. and that the nurse consented by entering the room 2. the harm. then there is sufficient intent by the actor to impose liability for the resulting tort. The court also held that consent does not always come from the intentional incurring of risk. if the defendant was able to form a tortuous intent. its irrelevant that the intent would not have existed “But for” the intoxication • 4. the voluntary act is that of the 3rd person. the same intent that would be sufficient to hold a sane person liable will be used. Intoxication: Courts have been unwilling to allow persons charged with intentional wrongdoings to raise a defense based on intoxication. The court held that the defendant. The defendant. -Examples: 1) Defendant unintentionally touches plaintiff’s face as a result of plaintiff’s abrupt movement passing by the defendant (on subway). • McGuire v. • 5 Original Trespasses Derived from “Writ of Trespass”: If the tort intended and the tort resulting are both one of the five intentional torts (from writ of trespass). the same intent of normal defendants.8 • Volitional –Act Requirement: There is NO tort liability for an involuntary act. 2) If a 3rd person takes hold of the defendant’s hand and strikes the plaintiff with it. 3. although insane. . and liability will be imposed regardless of whether the insanity produced the intent. struck and injured her nurse (plaintiff) with a piece of furniture after threatening that if anyone entered the room she would kill them. 1937) “Insane Case” 1. thus the 3rd person will be liable for battery 3. or expectation that others will perform their duties resting on them must be considered. and in fact entertains it. 4. **Authority case as to whether an insane person can be held liable for an intentional tort. Intent and Insanity: If the defendant is capable of entertaining intent. stress of situation. Almy (Supreme Judicial Court of Massachusetts.

**Transferred intent does NOT apply to negligence or recklessness Brudney v. The “five” require proof of actual damages (except for trespass to chattels in some cases) Assault Battery False Imprisonment Trespass to Land Trespass to Chattels 1.9 -Writ of Trespass was the original tort of old English common law where the five intentional torts are derived. Most modern transferred intent cases involve assault and battery. but it can also arise for the others as well. 2. The court held that the officer was not liable for assault and battery because he was acting reasonable in the course of his duty to protect a fellow officer. 1958) 1. 1976) 1. but that intent to commit battery transferred when it hit the plaintiff instead. 3. The idea behind transferred intent is that the defendant’s intended act is so wrongful that the defendant should not be permitted to escape liability for damages that in fact were inflicted merely because the defendant did not fully anticipate the event that caused them injury. **In cases like Keel v. Since the officer’s acts were reasonable. 2. 4. The court held a defendant liable in case where the defendant intended to strike or scare someone on the other side of the classroom by throwing an eraser (assault or battery). 2. blinding her (battery). Hainline (Supreme Court of Oklahoma. there could be no negligence either. attempted to use reasonable force to liberate another officer from an attack by a demonstrator and accidentally struck a third person (plaintiff) with his nightstick. A police officer (defendant) who was in the midst of a riot. • THE INTENT “TRANSFERS” ONLY IF THE DEFENDANT ACTS WRONGFULLY Keel v. Ematrudo (US District Court of Connecticut. • • • • • • . The court reasoned its decision by stating that the defendant intended to hit/injure another involved in the “game”. and therefore there was not a wrongful action which could have transferred the intent to the plaintiff. the plaintiff will likely be able to get better compensation since insurance or vicarious liability will be available to plaintiff. By suing for negligence or recklessness. the innocent unexpected victim would be better off suing for negligence or recklessness than an intentional tort based on transferred intent. BUT the eraser thrown hit the plaintiff in the eye. Hainline. 5.

10 B. 1995) 1. it’s a battery. harmful/offensive to the plaintiff. the degree of force used 4. camera in hand -“Non-Attachments”: a bus. El Paso Chamber of Commerce (Court of Civil Appeals of Texas. Pickard v. giving poisonous food to plaintiff. the relationship of the parties involved 2. 1952) 1. The court held that the taxi cab driver was not liable for battery when he steadied a little girl who was vomiting by placing his finger on her shoulder. crowded bars. Forseeability of touching at certain locations (clubs. Barry Pontiac-Buic. unreasonable) of the plaintiff’s body or his effects • Consent is presumed to minor touchings warranted by social usages prevalent at the time and place. a purse in hand. BATTERY AND ASSAULT BATTERY: 1. Inc. Intent (purpose or knowledge) to cause contact (or transferred intent) 2. Louisville Transfer Co. **If the act is intentional. or intentionally throwing plaintiff from bed of one’s truck. look at the…: 1. casual jostling in a crowd to make passage Noble . a car/bike/ motorcycle one is riding in or on. inaction by defendant is NOT battery Moore v. -“Good Samaritan” help to a against plaintiff’s objections is battery A battery must be an affirmative act. plain. Un-consented harmful or offensive touching (ie. breaking of window nearby plaintiff. -Examples. **When considering un-consented physical contact. The defendant was held liable for battery in an incident where the defendant violently pushed away the plaintiff’s camera in her hand. 1949) • • • • • • • . (Court of Appeals of KY. A battery can be committed even if the defendant sought to merely advance the interests or act in furtherance of some other important goal. anything in one’s hand. the availability of alternatives 3. (Supreme Court of RI. or large boat one is riding in. crowded sidewalk) Plaintiff’s “Effects”: Liability for battery is imposed to unconsented contact to every part of the body AND anything attached to the body or practically identified with it -“Attachments”: chair one is sitting in. Tap on shoulder to obtain information. unconsented. and assault because of his shouting and quick approach to the plaintiff.

Intent (purpose or knowledge) to cause apprehension of contact (or transferred intent) 2. Nominal Damages: ($1). For Offensive: What would an ordinary person find offensive. Punitive/Exemplary Damages: For “egregious” conduct. If the plaintiff knows the defendant’s gun is not loaded. vindicates technical invasion if no damages are proven. contributory negligence is not a defense to an intentional tort. “pain and suffering”. there is no assault. Defendant. Plaintiff has well-grounded reason to have apprehension of un-consented imminent contact ** A tort victim unaware of an offer of physical contact prior to its infliction suffers ONLY a battery. Compensatory Damages: medical expenses. • ASSAULT: 1. During “Western Week”. .11 1. and in her flight from him she ran into a glass door. UNLESS the defendant knows that the plaintiff has particular sensitivity and the defendant exploits it 2. (some exceptions) Battery Damages: 1. Defendant has present apparent ability to cause wrongful contact 3. liable through the agent. lost wages. 2. meant to punish defendant and make an example of him. An agent of the defendant (El Paso Chamber) chased after the plaintiff. El Paso Rodeo & Livestock Show officials were taking people to their “corrals” to encourage them to buy rodeo tickets. future medical expenses. was found liable for battery because the intent for assault transferred to battery indirectly caused. For “Harmful”: If the contact causes pain or illness. and NOT an assault Ex. cannot be awarded if compensatory is awarded. The fact the girl failed to exercise care on her own behalf was irrelevant since. If a doctor performs a surgical procedure not authorized by the plaintiff he will be liable for battery even if the procedure benefited the plaintiff or was to save his life. most common to be awarded 3. 3. but may be given with punitive in minority of courts 2. Threatening gesture by defendant (usually required) 4. or if the structure or function of any part of the plaintiff’s body is altered in any way regardless of harm -Ex. • • A plaintiff does not have to be aware of the offensive touching at the moment it occurs Standard for Determining What is Harmful or Offensive for Battery 1. a majority of courts will not award this type of damages unless compensatory is awarded as well.

It is only necessary that the plaintiff believe the defendant has the ability to commit the battery.12 ** If the victim is cognizant of an imminent threat. and NOT a battery • Western Union Telegraph Co. Threats of future harm are NOT actionable for assault -A threatening gesture with present ability is ordinarily required for assault to be actionable Conditional threats to commit a battery depends on whether the defendant is privileged to enforce through physical contact or a threat to do that action. 1. -Plaintiff need not be in fear of harm. “Present apparent ability” : Assault can only be actionable if the defendant has the actual ability to commit the threat or battery that the plaintiff is in apprehension of. There is no assault if the plaintiff mistakenly believed the defendant lacked the ability to commit a battery 2. the employee alone was responsible for the assault. **IF the defendant succeeds in placing the plaintiff in apprehension. but the perpetrator stops before the blow is struck. unless evasive action is taken immediately. v. If I were ten years older. 3. and it was claimed they tried to do so. I’d beat your ass Standard for “Apprehension” : Generally. “Present Apparent Ability Case’ 2. Defendant who threatens to shoot intruder in his house will not be liable for assault since he is privileged to make that threat Verbal qualifications attached to what otherwise would be a threat may not be assault -Ex. Hill (Court of Appeals of Alabama. 1933) 1. there ONLY an assault. The defendant’s knowledge is irrelevant. what would be aroused in the mind of a reasonable person EXCEPTION: If the defendant exploits a known timidity or fear of the plaintiff Standard for “Imminent Contact”: Whether the plaintiff expects contact to occur without substantial delay. only in apprehension of contact -Plaintiff’s courage in face of imminent contact does not absolve defendant of liability Mere verbal soliciting of another to engage in sexual relations is NOT assault -Unwanted physical advance is a battery -Threat of unwanted physical advance is an assault • • • • • • • • . Since the employee had present apparent ability to reach across the counter to touch the woman. -Ex. The court held that the employer could not be liable for its employee’s assault because the employee’s conduct was beyond the scope of his employment responsibilities. it is irrelevant if the defendant’s acts would not have placed a person of ordinary courage in such apprehension.

Intent (Purpose or knowledge) to cause emotional distress OR recklessness with respect thereto.13 • Damages for Assault: 1.. The court reasoned that it was necessary for the plaintiff to prove the severity of the stutter was worsened by the mental effects from the defendant’s conduct. Nominal Damages: Awarded if no damages or harm are proven 2. Extreme and outrageous conduct 3. Jones (Court of Appeals of Maryland. Resulting in severe mental distress • • NO TRANSFERRED INTENT Standard for “Extreme and Outrageous Conduct”: Must be “beyond all possible bounds of decency”. • • • . The court held that the plaintiff had not presented any “evidentiary particulars” which would establish the “intensity and duration” of emotional distress. A General Motors supervisor viciously taunted the plaintiff employee over the plaintiff’s speech impediment he had had for many years. Causation …(Links 2 to 4) 4. or if the act resulted in illness 3. Food Fair Stores of Florida (FL Supreme Ct. TORT OF OUTRAGE: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS Tort of Outrage Elements: (Prima Facie Case) 1. The plaintiff had seen a physician over the “nervousness” resulting from the defendant’s treatment. 1958) -An employee of the store told a woman “you stink to me”. Punitive Damages: Awarded only in cases of egregious conduct by defendant C. 2. humiliation. 1977) 1. “atrocious”. 2. or “utterly intolerable in a civilized community” -**Severity is such that no reasonable person would be expected to endure it -Trivial upset or minor discomfort will not support a cause of action -This is a very demanding standard by the courts Harris v. Motive of the defendant will play a crucial role in the court’s assessment of whether liability should be imposed for intentional or reckless infliction of severe mental distress Abusive Language: Liability does NOT extend to mere insults. 3. Compensatory Damages: Awarded if the plaintiff for “mental disturbances”—such as fright. Slocum v. petty oppressions. indignities. or other “trivialities” 1. annoyances. but the plaintiff was not able to recover for intentional infliction of emotional distress even though she suffered mental anguish that resulted in her heart attack soon after. threats.

of Appeal of CA. Key to this finding by courts is the tolling of statutes of limitations if the wrongful behavior (assault/ battery) was continual of a given period of time. the actor is subject to liability only when he intentionally or recklessly causes severe emotional distress to: (a) a member of a person’s immediate family present at the time (regardless if the distress results in bodily harm.14 2. Sexual Harassment may be actionable for intentional infliction of emotional distress (most fall under Civil Rights. 1959) 1. Taylor v. (B) Defendants may be liable for their mere insults against plaintiffs where the defendant exploits a known sensitivity of the plaintiff for a prolonged period. Stalking may be actionable for tort of outrage. and as a result suffered emotional distress. utilities. -The court held that this pattern constituted as a continual tort which allowed the tolling of the statute of limitations of the conduct for the entire marriage. 1. Feltmeier: -A husband engaged in a long pattern of physical and mental abuse of the plaintiff during the marriage and after the divorce. Some states have statutes that allow the tolling of statutes of limitations but vary on where the “extreme conduct” begins 3. isolation and stalking. confinement. . regardless of the fact that the attempt may be expected to. 2. Feltmeier v. -Continual Torts allow the statute of limitations to begin running at the date of the last injury or when the torts cease to occur. Vallelunga (District Ct. and innkeepers are NOT immune from mere insults that cause the tort of outrage. Exceptions: (A) Common carriers. The abuse involved battery. especially where statutes create a civil cause of action Debt Collection: NO LIABILITY for “reasonable” attempts to collect debt. A young girl witnessed her father being physically beaten by the two defendants. and usually does cause emotional distress. -Fair Debt Collection Practices Act now governs liability • • Bystanders and Third Persons: Where extreme and outrageous conduct is directed at a third person/bystander. Act) 4. and (b) any other person who is present at the time if such distress results in bodily harm. • Domestic Violence and Harassment : Some courts hold that abusive conduct by a spouse which goes far beyond the trials of everyday life may be actionable. -Exception: Continual “egregious conduct” in collecting the debt may make the creditor liable.

AND 5. What is “Emotional Distress”: • Fright and shock at the time of the accident • Humiliation resulting from defendant’s actions • Unhappiness and depression over inability to lead one’s life prior to injury • Anxiety about the future or past • Anger over the injury Compensation for Tort of Outrage 1. FALSE IMPRISONMENT Elements for “Prima Facie” Case: 1. Damages: Compensatory. and punitive in egregious acts D. 2. Compensation is available when: • Incidental to physical injury tort (“Parasitic Damages”) • Incidental to a non-physical injury tort (Assault. Jerry Falwell: The court invalidated Falwell’s tort of outrage suit because to hold defendant’s caricature was an opinion protected by the 1st Amendment. and the court held that knowledge of the 3rd party’s presence will make the defendants liable for that person’s emotional distress. libel/slander) • Reckless or Negligent infliction of emotional distress (limited) • Intentional Infliction of Severe Emotional Distress (Single suit) 3. Apparent lack of a reasonable exit 4.15 2. threat of force. -Ex. or assertion of legal authority by the defendant. not all “bystander” cases require proof/knowledge of presence • Constitutional Restrictions: Conduct that would otherwise be tortuous may be protected under the “free-speech” or “free exercise of religion” clauses of the First Amendment. Un-consented detention within boundaries fixed by the defendant 3. -Now. Hustler Magazine v. Use of unreasonable force. Key Concerns: • Genuineness of claim (some jurisdictions require proof injury) • Scope of Liability 2. The court dismissed her complaint because it found from the evidence that the defendants had no knowledge of her presence. Harm to the plaintiff AND/OR Knowledge by the plaintiff of the confinement . Intent (Purpose or Knowledge) to confine.

Groves (Court of Appeals of CO. False Arrest may be done by the police or private citizen Enright v. Plaintiff’s confinement must be involuntary 2. the court found the act unlawful because the policeman did not have probable cause found from any statute pertaining to the circumstances of the arrest. Holding one’s car and car keys to prevent one from leaving a teen lock-in. which the plaintiff had climbed over. retention of a woman’s purse to keep her from leaving CONSENT WILL BAR ACTION FOR FALSE IMPRISONMENT Unlawful Force. 1845) -The defendant had erected a fence to enclose a portion of a highway for boat race. Confinement must be complete. as he was allowed to leave from whence he came. Bird v. or the plaintiff’s property. 1977) -Policeman was liable for false arrest after he took plaintiff into custody after she had refused to produce her driver’s license. Jones (Q. False Arrest is a variety of false imprisonment created by one who unlawfully asserts legal authority in order to confine the plaintiff. If the apparent “exit” is unreasonable it entails: a likelihood of harm to the plaintiff. Threat of Force. 4. if the plaintiff is otherwise free to go… 3.16 • • • • • • False Imprisonment will not lie if the defendant’s conduct is merely reckless or negligent. or it would infringe upon one’s dignity---then there is still false imprisonment Retention of Property: False imprisonment may result from the defendant’s exercise of control over the plaintiff’s property if the plaintiff elects to remain with the property Ex. NOT partial---no action if the defendant merely “obstructs” the plaintiff’s travel in one direction. • • • . The court found the defendant was not liable for false imprisonment because the plaintiff was not detained within the fixed boundaries. -There is no privilege to intentionally give police false information.. or Assertion of Legal Authority 1. IT MUST BE INTENTIONAL! Transferred Intent applies False Imprisonment It makes no difference that the defendant was acting in “good faith” (except to prevent punitive damages) May be proven by direct evidence There must be KNOWLEDGE OF CONFINEMENT – for liability to be imposed and harm to plaintiff for False Imprisonment “Boundaries of Confinement”: (Unconsented Intentional Confinement) 1. or to another person or property of others.B. doing so may give rise to liability if it results in another being falsely arrested. May be large or even mobile 2. If confinement is caused by physical force 3.

Lee (Court of Appeals of Texas. not a real loaded one. Plaintiff knows that the defendant’s gun is a toy gun. By express or implied threat of force – Future threat of force does NOT count Morales v. one reasonably suspected of theft---See Chpt. for purposes of investigation. -EXCEPTION: If there was probable cause or reasonable suspicion to arrest but during arrest there was “excessive force” or “unreasonable delay” in bringing defendant before a magistrate Some courts hold that where there is a “relevance of guilt”. Sorlienson (Supreme Court of Minnesota. may be subject to tort liability. -EXCEPTION: If the plaintiff knows that the defendant does not have the ability to carry out the threat.17 4. 2: Remaining at one’s job site for fear one may lose one’s job if they leave • • • • • • Defenses to False Imprisonment • Courts are reluctant to impose liability upon persons who assist parents in their efforts to discipline or control an un-emancipated child minor child. -If the plaintiff felt confined because of a tort of assault. • An “extreme” religious organization or “cult”. • Peterson v. 1980) . 3 “Malicious Prosecution” Distinguished: A private person who initiates or procures the institution of criminal proceedings against someone not guilty of the offense commits the tort of malicious prosecution if: (A) the actor lacks probable cause and acts for purpose other than bring the offender to justice. Ex. there can be NO false arrest “Shop-Keeper’s Privilege”: A false imprisonment action may be barred by a suspected shoplifter by the privilege of the merchant has to detain. 1: A person remaining at a location merely to clear away suspicion of wrongdoing or to avoid making a scene Ex. and (B) the proceedings have terminated in favor of the accused Definition of Physical Force in Relation to Confinement: All that is necessary is that the defendant to have the “ability” to use force if the plaintiff attempts to escape. however its very limited based on the First Amendment. Moral pressure and economic coercion are normally insufficient predicates for false imprisonment Ex. that question will be left to the jury Probable Cause/Reasonable Suspicion: Precludes liability on a law enforcement officer if there was a false arrest. which engages in brainwashing or other forms of coercive conduct. 1984) -There was no false imprisonment because the defendant doctor had merely threatened to call the police and have the plaintiff employee arrested if she did not remain in the office. there can be no “physical force” to confine.

Physical presence on. above. mines. it matured to a point where the girl.c. Placing a newspaper in front of the neighbor’s door Reasonable and “good faith” mistakes by defendant as to ownership or permission to enter is IRRELEVANT and defendant is still liable for trespass q.C.a. Building a structure on it.c. Taking an unauthorized shortcut across the plaintiff’s lot 2. Although the confinement was initially non-consensual. B will not be liable unless he fails to leave in a reasonable amount of time Trespass q. (quare clausum fregit) Elements for “Prima Facie” Case of Trespass to Land: 1. may be brought by: . whose adult child who had allegedly been “brainwashed” by a cult.c. 1. TRESPASS TO LAND a. Cutting a neighbor’s grass 2. that constituted waiver of the earlier forced detention. pipelines) 3. at least for several days. EXCEPTION: If the mistake is a result of the inducement by the plaintiff.c. Intent (Purpose or knowledge) to be present. The court held that because there was a considerable period where the plaintiff child did not leave. the defendant is not liable for trespass • • • Trespass q. TRESPASS Q. If A pushes B onto C’s land.V.v.v. Throwing trash onto the property of another without personally crossing over on to that property is actionable 2.18 1. and barred her from action for false imprisonment against her parents. The court reasoned that limitations upon the child’s mobility did NOT constitute meaningful deprivations of personal liberty. 2.v. consented by failing to avail herself of numerous opportunities to escape 3. A commits a trespass –Since B had no intent to enter. 4. Parents. is present even if it is a benefit to the plaintiff 1.v. Tunneling under it (ie. no matter how far over it comes upon one’s land • Indirect Invasions are Actionable Trespass q. or under the land of another without the privilege or the owner’s consent Key/Testable Examples: 1. (This is VERY DEBATABLE) E. forcibly abducted their daughter for the purpose of “deprogramming” her. transferred intent also applies 2.k.

v.b. (c) Intermeddling (physical contact with chattel) AND 3. Intent (purpose or knowledge) to affect the chattel 2. TRESPASS TO CHATTELS AND CONVERSION Classification of Intentional Interference with Personal Property: • Two Actions: 1.c. the one who last ceased occupancy without intent to abandon 3. d. Minor Interference: Trespass to Chattels TRESPASS TO CHATTELS (TRESPASS DE BONIS ASPORTATIS.a or Trespass to Chattels: Actual diminution (decrease from original value) in the chattel’s value caused by the minor interference Ex. quality. One who is in occupancy doing those things which would be understood as exercising “exclusive control” over the property 2.a. : 1. toxic odors from another’s property.v. In the absence of dispossession (from which damage may be inferred). violations of municipal zoning ordinances F.b.stealing • Obtaining by fraud or duress – buying watch with a bad check • Barring access to the chattel – changing lock on plaintiff’s office • Completely destroying – setting fire to another’s car (conversion) • Taking into the custody of the law – impounding an automobile Damages for Trespass d. is an action which protects the possessor from non-trespassory interferencewith the use or enjoyment of land -Examples: constant loud noise.) Elements for Prima Facie case for Trespass d. If no one is present. or value Dispossession is Committed Intentionally by: (Must be substantial interference) • Taking without permission . proof of damage is required in the form of: (a) substantial loss of use OR (b) impairment of condition. (b) Use.b. Major Interference: Conversion 2. then the one who has the right as against all other person to immediate occupancy • • Some courts hold that there can be reckless or negligent trespass q. Minor interference with the plaintiff’s possessory interest by: (a) dispossession. Tort of Nuisance : Considered in tandem with trespass q.c.a.19 1.. Getting into the wrong car brought up by the valet at a hotel where the car is an exact match to the car owned by the defendant . If not #1 or #2. extreme bright lights.

KEY TO TRESPASS d. 3).a. for many of the customers had complained about receiving the defendant’s unsolicited emails. even though the defendant did not physically damage the plaintiff’s computer equipment. 2. If intruder’s actions are causing harm to the plaintiff’s equipment WITHOUT HIS KNOWLEDGE --.a. Intentional (Purpose or knowledge) or transferred intent . Defendant’s conduct constituted trespass to chattels because. or conversion and will NOT preclude plaintiff from recovery In regards to CompuServe.No warning necessary from plaintiff 2.b. 1997) 1. 4. v. – S. The defendant’s conduct was also actionable for trespass d. Ct. it did diminish the equipment’s value by demanding disk space and it drained its processing power. would there be actionable trespass d.b. unintentional harmful interference with personal property may be actionable under negligence. Defendant continued the soliciting despite the plaintiff’s demand to cease that activity. Ohio.Warning necessary from plaintiff • • • CONVERSION Major Interference with Personal Property: CONSIDER --• Extent of actor’s exercise of dominion or control over the plaintiff’s chattel • Actor’s intent to assert right to the chattel inconsistent with the plaintiff’s right to control • Actor’s “good faith” • Extent and duration of resulting interference • Harm done to the chattel • Inconvenience and expense caused to the plaintiff Elements for a Prima Facie Case for Conversion: 1. If intruder KNOWS his actions are wrong and interfering with CompuServe’s use of its equipment --.20 • Mistake of fact or good motives do NOT preclude a finding of intent to commit trespass to chattels or conversion -EXCEPTION: Privilege – such as public or private necessity (see chpt.b.a.? 1. recklessness or strict liability **CompuServe Inc. analysis and to CYBER TORT analysis Comparative Fault is NOT a defense to trespass d. many of whom were customers of the plaintiff’s on-line computer service. 3. if there had been a warning by Plaintiff to defendant.a.b. Cyber Promotions. (US Dist. Inc. because it harmed the plaintiff’s legally protected interest in its relationships with its customers. Defendants sent unsolicited email advertisements to thousands of Internet users.

the defendant would have likely been liable for conversion. **This case demonstrates that if the interference or assertion of dominion over a part of a chattel is slow and difficult. Inc. 3. Lost and found at a department store or restaurant Bona Fide Purchaser: A person who obtains property through theft or fraud is liable for conversion just as much as a person who later acquires goods with notice of their illegitimate origin. and advised the plaintiff how he might recover the furniture. the whole item is converted. The court rejected the plaintiff’s argument that the defendant’s removal and placing of the plaintiff’s furniture into a storage facility constituted conversion. Key Distinction: If the plaintiff had not been informed of the location of the furniture. but if the part can easily and quickly be replaced. v. • Russel-Vaughn Ford. The court reasoned that the defendant had not asserted no claim of ownership. 2. 3. Kroenert (Supreme Court of CA. had forewarned the plaintiff of his intention to remove the furniture to a new location. Actor’s exercise of dominion or control over a chattel that 3. 1946) 1. Seriously interferes with the right of another to control that chattel belonging to him where 4. 2.21 2. may NOT be sued for conversion. only that part is converted. or it had been moved a great distance by defendant. the court held that the facts justified a finding of conversion. the defendant cannot be liable Ex. 4. 1968) 1. Rouse (Supreme Court of Alabama. the actor is required to pay the other the full fair market value of the chattel Examples of Conversion/Lack Proof of Its Key Factors: • Zaslow v. • A “defrauder” has voidable title to goods acquired by fraud • EXCEPTION: (UCC) If the bona fide purchaser buys the in good faith from one who acquired it improperly or by fraud. The defendant’s salesman intentionally refused to return the plaintiff’s car keys despite repeated demands by plaintiff. ** Bad faith by converter is a key factor in finding of conversion • Plaintiff MUST DEMAND RETURN OF “CONVERTED” CHATTEL before the defendant can be held liable -Proof of a refused demand is not required. The court held that the plaintiff was not required to exhaust all possible means of gaining possession of his chattel withheld by defendant. if the demand would have been useless (such as from a thief) -EXCEPTION: If the defendant refuses the plaintiff’s demand initially in order to verify the plaintiff’s right to the chattel. . Even though the interference with plaintiff’s dominion over his property was relatively brief. or destroyed.

there may be recovery of its value to its possessor • “Sentimental Value” is ordinarily NOT compensated ---May apply more so in conjunction with tort of outrage against the converter • Punitive damages may be awarded in cases involving particularly outrageous conduct or a converter with long history of tortuous behavior • Most states limit recovery for the tortuous death of a pet to the animals fair market value ----A few states have statutes that permit damages for loss of companionship • Evidence of the cost of repairs is admissible if the compensation is sought for damage to property • Replevin: Action brought by plaintiff against the converter in order to recover the possession of the chattel in specie (as it currently is) and to recover “incidental” damages Ex. 3. 1.22 Bailees and Conversion: Bailees are temporary holders of bailor’s property. A bailee’s remedy. Conversion and Demand for Return: • Demand for return by plaintiff to converter is NOT generally required by courts in order for the plaintiff to seek recovery of damages or replevin . When the Bailee is Liable for Conversion: • A bailee with knowledge or has reason to know that the bailor has no right to deliver the chattel becomes liable for conversion to the “true owner” by receiving the goods. is to deposit the goods in court Damages for Conversion: • Converter must pay the normal fair market value of the converted good • When the good increases in value between the time of conversion and time of the trial--the plaintiff should be able to recover the value of the increase. or the market value would not be adequate compensation. assuming the replacement is possible. when faced with adverse claims. redelivers the chattel to its bailor is not liable for conversion even though the bailor is not the rightful owner. • If the chattel has no “market value” . When the Bailee is NOT liable for Conversion: • A bailee without notice that a chattel is lost or stolen is not liable for conversion merely by reason of receiving the chattel. • A bailee with notice of multiple claims to a chattel is under an absolute duty to redeliver the chattel to its “true owner” 2. • A bailee who redelivers a chattel to the true owner is not liable to “actual bailor” for conversion. -General View: Allow the highest intermediate value between the time of conversion and expiration of a reasonable time for making replacement. and the bailees are required to inquire into the title of the items delivered to them. • A bailee who. without notice of other claims. Art theft – Owner may wish to recover the painting stolen and also sue for the damages caused by actor’s conversion.

for conversion because the registrar gave away the plaintiff’s intellectual property. Electronic form rather than ink was held to be irrelevant to conversion.com” and transfer the name to him. Actual/Consent in Fact: Plaintiff is actually willing for the conduct to occur (not necessarily the consequences of the conduct). CONSENT “VIOLENTI NON FIT INJURIA” “Violenti Non Fit Injuria”: To one who is willing. no wrong has been committed Consent: A total bar to liability to ALL TORTS. computer programs. plaintiff’s consent to an otherwise tortuous act negates the wrongful element of the defendant’s conduct and prevents the existence of a tort. or an electronic computerized entry (recent view) • Kremen v. 2003) 1. 2..23 EXCEPTION: Plaintiff is REQUIRED to demand return from a bonafide purchaser A qualified refusal by converter constitutes conversion • What May be Converted ?: Prevailing view is that any kind of tangible property may be converted • The taking of “intangible property” is conversion ONLY if the property is the type customarily merged in or identified with some document Ex. hit me!” • Affirmative action – pointing to one’s chest to indicate where to be hit • Silence or inaction under circumstances indicating willingness – not objecting to romantic advances by one’s companion . or literary manuscripts. A third person fraudulently induced a domain name registrar to cancel the plaintiff’s registration of the name “sex. Is manifested by--• Words – “Go ahead. stock certificates. Cohen (US Court of Appeals -9th Circ. 3. circulation lists. • The plaintiff ordinarily must have a property interest in the “document” in question to be able to state a claim for conversion CHAPTER 3: DEFENSES AND PRIVILEGES A. The court reasoned that the electronic database domain names with computers connected to the Internet satisfied that “document” requirement. Sketches. The court concluded that the registrar was liable for conversion as was the third person. Burden of Pleading and Proving: Burden of proving “lack of consent” rests with the plaintiff for all intentional torts EXCEPT Trespass to land (D’s burden) Types of Consent (3): 1.

and probable consequences of the decision. A reasonable person would assume plaintiff consented by his actions or inaction. Apparent Consent: Found whenever the plaintiff’s conduct reasonably leads another to believe that the plaintiff has consented. Cunard S. the plaintiff may be held to lack capacity • Youth – “Infancy” • Mental deficiency • Old agedness • Medical disability Consent’s Relationship to “Assumption of the Risk”: Volenti non fit injuria may arise in nonintentional torts. An initiation into a college drinking society by one of the initiates would NOT bar an action based on negligence and recklessness.24 2. extent. Apparent Consent: • O’Brien v. The court stated that the continued and arguably forced drinking after the point of extreme intoxication was enough to declare the decedent lacked capacity. even though the decedent had voluntarily participated in the initial stages of the induction. a legal fiction and policy determination created by the court that the stated invasion should not be actionable. • Arises where one fails to object to a well-established and customary practice • Participation in a certain conduct – Football 3. Implied Consent: No consent at all. (Supreme Judicial Ct. it must be consent to the conduct that actually occurs or is substantially similar to that kind or is reasonably implied. Actual/Consent in Fact: • Davies v. In absence of capacity. even though the plaintiff did not actually consent. of MA. for consent to be effective. Scope of Consent: An action will be barred ONLY if the invasion is within the scope of the plaintiff’s consent. Co. It is defined as forcing another to engage in prohibited activities or humiliating experiences in order to be initiated or remain in a student organization. May occur in relation to – • Medical emergencies – A court may even reject “Informed Consent” • Good Samaritan cases Capacity to Consent: In cases involving actual or apparent consent. in these cases the principle is used as partial or full defense to carelessness in order to reduce or bar recovery. the individual must have the capacity or ability to appreciate the nature. 1979) 1. consent will NOT bar recovery. 2. 1891) . May Occur where • In extreme cases of drunkenness.S. • Fraternity Hazing: Most jurisdictions have outlawed hazing by classifying the conduct as criminal misdemeanor unless the acts constitute a felony. or forced inebriation. Butler (Supreme Court of Nevada.

4. brought with him a young man without medical qualifications in order to assist the physician in the delivery of the plaintiff’s baby. destroys the plaintiff’s prior consent. having obvious notice (she was standing in line watching others get a shot). there was not time to consult the parents. If the mistake was related to a collateral matter (plaintiff reasons for consenting): The mistake was called fraud in the inducement and the consent was valid. and this mistake of fact is known to the defendant. The court held that because the assistant’s lack of training was not disclosed to the plaintiff. 2. If mistake was concerned: the court looked at the nature of the invasion.25 1. Consent Based on Mistake: (Modern/Gen. A physician in a house call to plaintiff’s residence. and the facts that made the invasion harmful or offensive. The court took the approach that medical emergencies should constitute implied consent. It spoke only in the terms of the right to act in the face of “emergent” conditions. 2. and consent was implied. Roberts (Supreme Court of Michigan. 3. the plaintiff’s consent to his presence and touching of her was invalid to bar her tort action. Key to this finding was her participation. 1881)*** 1. 2. -Mistake was fraud in factum. Inc. • If there was a mutual mistake of fact: consent is NOT destroyed and the claim may still be brought to court. Thus. • DeMay v. the harm reasonably expected. Implied Consent: • Miller v. HCA. Key case for analysis for consent based on mistake and patient’s right to privacy. and the consent was destroyed if and only if the mistake was known to the defendant. 2. . • Common Law/Tradition Standard: 1.” 3. The court held that there could be no liability for negligence or battery based on the authorized resuscitation of the child derived from the emergent circumstances requiring the immediate decision of the physician. The court found that the parents’ prior refusal to provide consent for resuscitation was irrelevant because the child could not be fully evaluated for medical treatment until its birth and therefore the parents’ earlier decision was not “fully informed. 2003) *** 1. (Supreme Court of Texas. and choosing to give her arm to the doctor. A woman who held up her arm to be vaccinated was held by the court to have consented to what otherwise would have been a battery because there was nothing in her conduct to indicate a contrary intent. View) Any mistake by the plaintiff as to material fact which causes him to consent. but rejected the notion of “informed consent” and held that a hospital could provide emergency resuscitative treatment to a premature newborn baby without parental consent.

What is the effect of mistake of fact? 4. View) Consent to engage in criminal conduct is valid. B. The plaintiff had argued that “but for” her mistake of fact that the assistant was a qualified medical assistant. DEFENSE OF SELF AND DEFENSE OF OTHERS Privileges and Defenses: Typically must be pleaded and proven by the defendant (affirmative defenses). Are there special rules to the privilege or defense SELF DEFENSE 1. 2. such as the use of a threat of force against one’s person or property or against one’s family or friends. Who may assert the privilege? 2. Allowed to anyone other than the aggressor – anyone other than the person who wrongfully initiated the confrontation. • Key Questions to Ask in Regards to Privileges and Defenses: 1. Only reasonable force is allowed in relation to the situation • **A reasonable mistake as to the necessity or degree of force required does NOT destroy the privilege of self defense **Use of deadly force is only justified by an imminent threat of deadly force. May be used when one reasonably believes or anticipates immediate physical harm to his self 3. If the defendant successfully carries the burden of proof for his defense or privilege. she would not have consented to his presence. What belief is required? 3. (depends on common law of that jurisdiction) -In duty to retreat jurisdictions. there can be no assault or battery actions brought by either party since both consented to fight. If two people at a bar fight. unless the place was also the home or workplace of the assailant • . and retreat from the situation may be required. Ex. and if they are not proven then they are not apart of the case.26 4. Giving consent to undergo a polygraph test in order to maintain one’s job will not be allow a false imprisonment action Consent to a Criminal Act: (Gen. How much force can be used? 5. then his tort liability will be precluded or at least limited in amount. Consent and Duress: Consent is NOT effective if its given under duress. that duty may not be present when one is attacked at home or at work (one’s castle). Ex. EXCEPTION: Courts are reluctant to except argument that consent is invalid as a result of “economic duress”.

go ahead. The defendant apprehended a young boy who had been throwing snowballs at passing cars and who might have been expected to continue to do so. Relative strength of the parties involved Silas v. The aggressor may not use privilege of self-defense. Sabley (Supreme Court of Wisconsin. which accidentally hit him) was reasonable under the circumstances. Bowen (US Dist. do NOT justify self defense EXCEPTION: Insulting words may give rise to consent. -The original aggressor may regain the right of self-defense by communicating to the plaintiff an intent to cease the attack. 2. the belligerence of the plaintiff towards defendant. -If B. thus if A starts fight and B defends himself. Status of the aggressor may shift as a confrontation escalates. the victim of the initial unlawful attack responds by using excessive force. the privilege terminates Mere words. . Age of the opposing party 2.27 • • What is “reasonable force”? Consider Factors such as--1. Allowed to anyone 2. hit me!” would be consent that would bar action for an intentional tort • • • DEFENSE OF OTHERS: 1. “You couldn’t hurt me if you tried. Court for SC. B is liable for the injuries the original aggressor sustained as a result of the unreasonable force. regardless of what the intervener believes. and the force used (firing shotgun in proximity to plaintiff. 1967) 1. Size of opposing party 3. May be used when on reasonably believes that force is necessary to protect another (even a total stranger) from physical harm 3. • • Mistake of Fact – Split authority as to whether reasonable mistake destroys privilege Drabek v. 1966) *** 1. The court held that because of the disparity in the size of the parties. Reasonable force may be used in relation to the circumstances -Some jurisdictions hold that the intervener must “step in the shoes of the one being assisted” ---if the one being assisted has no right of self-defense then the intervener’s conduct is not privileged. A can then use “selfdefense” SELF-DEFENSE DOES NOT PERMIT RETALIATION -Once there is no longer a threat of continued harm. unaccompanied by a hostile act. but A says “I quit” and B continues punching.

2. A stowaway on a ship cannot be thrown overboard. Briney (Supreme Court of Iowa. Possessor may only use non-deadly force to recapture the chattel 4. C. because deadly force may not be used if there is no threat to personal safety. Entitled to possessor 2. undergoes fresh pursuit. 1971) 1. The Katko court held that giving notice of the intended use of a mechanical device does not enlarge the privilege. RECAPTURE OF CHATTELS: 1. PRIVILEGES RELATING TO PROPERTY DEFENSE OF PROPERTY 1. Ex. Mechanical device) that which the person is not permitted to do directly • Katko v. Entitled to the possessor 2. ANY MISTAKE OF FACT DESTROYS PRIVILEGE • Deadly force would ONLY be allowed in the instance that the possessor has prompt discovery. Defendants rigged a spring-loaded gun to protect an unoccupied farmhouse from break-ins. • A possessor’s privilege to eject a person from property is restricted in that the possessor may not expose the person to unreasonable physical danger. 3. Possessor may use reasonable. NON-DEADLY force to defend the property • Reasonable mistake to the necessity or degree of force is allowed • Mistake as to whether the plaintiff has privilege to interfere with possessor’s possession destroys the defense of property privilege • A person cannot do indirectly (ex. They were held liable to a trespasser who was injured by the gun. but may be ejected at the next safe port. The court held that the defendant’s claim of defense of others did not apply since there were less severe alternatives available (like taking child home) and therefore the defendant was liable for battery. Justice Fairchild held that it was unreasonable as a matter of law to drive the child several miles to the police station after taking him into custody. and is then faced with immediate threat of deadly force by the wrongful taker .28 2. 3. The possessor must be wrongfully dispossessed by fraud or force 3. recovers his chattel. ***THERE MUST BE PROMPT DISCOVERY and FRESH PURSUIT of the wrongful taker 5.

Anyone is completely privileged . reasonable force may be used to detain the individual REASONABLE MISTAKE IS ALLOWED **Shopkeeper’s Privilege to investigate persons suspected of theft is extended to individuals other then shopkeepers Bonkowski v. The blowing up of the plaintiff’s house did not stop the spread of the fire. At some point the distance will become so great that Shopkeeper’s privilege will end and recapture of chattels privilege will begin. D. 2. A shopkeeper may detain someone temporarily 2. Installment purchase of household goods. Ex. Geary (Supreme Court of CA. does NOT justify assertion of the recapture privilege because the seller’s dispossession has been freely consented to and the default by plaintiff was unfortunate development. non-forcible entry. whereby plaintiff defaults on payments. Person detained must be suspected of theft (Not allowed to coerce confession. demand payment. does not allow defendant to recapture chattels EXCEPTION: If there is a contractual clause giving seller the right to enter upon buyer’s premises in case of default. place individual under arrest. PUBLIC NECESSITY: If the class of protected persons by the action of the defendant is the public as a whole. The court held that 30 feet away from the store was NOT too great a distance for the privilege to investigate by shopkeeper (or his agents) to be destroyed. Detainee may only be detained for purposes of reasonable investigation • • • • If a request has been made to person to stay and has been refused. 1853) 1. but the privilege of public necessity precluded a suit in tort by the owner of the dwelling destroyed. or to publicly disgrace thief) 4. • Encompasses invasion of land. -Surroco v. interference with chattels. PRIVILEGE TO DETAIN FOR INVESTIGATION (“SHOPKEEPER’S PRIVILEGE”) 1. and in some circumstances reasonable force against a person • Privilege of private or public necessity is NOT dependent upon whether the action achieves the desired goal. will allow seller to repossess the goods in a peaceful. in or near the store 3. or a substantial number of persons 1. Arlan’s Department Store (Court of Appeals of Michigan. 1968) 1. PUBLIC AND PRIVATE NECESSITY Privilege of “Necessity”: Exists if its apparently necessary to invade upon the interests of the plaintiff (often an innocent third party) in order to prevent greater harm.29 • A typical (non-fraudulent) conditional sale.

Generally. 2. Ct. Ex. ’91) 1. If the act is for the benefit of the plaintiff. Milwaukee Mutual Insurance (Supreme Ct. In the absence of such resistance (resistance present in this case) a landowner may recover damages actually inflicted by another’s assertion of private necessity. the defendant owes no liability at all. 1910) . 2. Reasonable force may be used in relation to the circumstances 3. of Minnesota. If defendant takes plaintiff’s scarf to wrap bandage around plaintiff’s wound. It must be done to avoid imminent risk of harm to others within the community or a large number of persons within the community 5. -Ploof v. A city was required to reimburse a homeowner whose house had been destroyed by a police SWAT team who in the course of apprehending a suspect. -Vincent v. (S. • The actor/intervener is liable for actual losses incurred by the plaintiff • EXCEPTIONS: 1. of Minnesota. Putnam (Supreme Court of Vermont. If the situation makes intervention actually or apparently necessary 4. 3. THERE IS ONLY PRIVILEGE IF THE HARM PREVENTED IS GREATER THAN THE HARMED INCURRED BY THE PRIVILEGE Public necessity may be asserted by private citizens as well as by public officials The US Constitution requires just compensation if the government takes private property for public use Persons acting on behalf of the govt. If the plaintiff resists the assertion of the privilege by the defendant. Lake Erie Transportation Co. the privilege becomes absolute. may be protected by public necessity and statutory governmental immunity • • • • PRIVATE NECESSITY: If the public interest is not involved. defendant will NOT owe the plaintiff any damages.30 2. The landowner was held liable for the consequential injuries and damages suffered by the occupants of the vessel after he cast the boat adrift. 2. and the defendant acts merely to protect his personal interests or those of a few other persons. A landowner had cast adrift a boat which had attempted to tie up at this dock during a strong storm. and no further compensation is required by the defendant for the reasonable harm inflicted thereafter. destroyed the plaintiff’s house. 1908) 1. no liability(actual damages) for Public Necessity • • Reasonable mistake does NOT destroy privilege of public necessity Some statutes and common law rules abrogate the requirement of compensation of the one who suffers as a result of public necessity -Wegner v. Fairness and justice required that the homeowner not be forced to bear the entire cost of a benefit conferred on the entire city.

• • E. Recapture of Goods on the land of another: The important difference between the status of one who is a trespasser on land and one who is on the land pursuant to an incomplete privilege is that the one with private necessity is entitled to be on the land. NOT trespass. -3 Key Rules to Consider: 1. 2. of knowing participation . hold that recovery is barred if the plaintiff’s injury is: 1. Ex. A direct result 2.31 1. the actor’s use of reasonable force to overcome such resistance to his entry or remaining on the land so long as the necessity continues is completely “privately” privileged. If the goods came upon the land of another with the consent or through the fault of their possessor. • EXCEPTION: Some jurisdictions. The court held that defendant should compensate the plaintiff for the actual damage to dock caused by its ship. or was wrongfully placed there by a third person without the landowner’s knowledge or consent---there is privilege of private necessity to allow possessor to enter on to the land to retrieve the goods but that possessor will be liable for actual damages. the possessor of land is under a duty to permit him to come and remain there and hence is not privileged to resist his entry. Kids hit baseball in neighbor’s yard on accident and the neighbor had warned the children not to play ball near his property. one must resort to the law to regain possession of said land. If the goods came upon the land through force of nature (wind blows kite on to neighbor’s land). UNLAWFUL CONDUCT • Generally. a plaintiff is NOT barred from recovery merely because he was committing a tort or a crime himself at the time of his injury. Recapture of Land: Most states hold that in order to recapture land from another who is wrongfully in possession. the owner(possessor) may enter at a reasonable time. If the goods came upon the land through wrongful conduct of the landowner. there is NO privilege to enter to receive that chattel and an effort to do so will be actionable for trespass. in a reasonable manner. Therefore he is not liable for harm so occasioned. -Where the possessor of the land resists such a privileged entry. 3. and may use reasonable force to recover the goods--even if not it was not in fresh pursuit. -Therefore. Where damage was caused to a dock owned by plaintiff by a ship owned by defendant that was moored there during a bad storm. or with the landowner’s knowledge of wrongful conduct by a third person. but the defendant was not liable for trespass because one who has private necessity is allowed privilege to enter upon possessor’s property to protect his own property. 2.

but may justify it if the circumstances warrant the deliberate act by the defendant. • Privileges to Discipline: Parents are privileged to use reasonable force to discipline their children. and inflation buffer 5. General Justification of Unlawful Conduct: A person may commit a tort. • DAMAGES MUST BE PROVEN IN EVERY CASE -Plaintiff carries the burden of proving each of the elements of the tort. in the absence of proof of actual damages. Past physical and mental pain 2. The defendant’s duty to aid in apprehending wrongdoers. deduction of interest to be earned. the judge will instruct the jury whether. # of years worked. UNLESS the error was first called to the attention of the trial court REMITTITUR AND ADDITUR . the judge will instruct the jurors that if they find that the defendant is liable. CHAPTER FOUR: DAMAGES Jury Instructions on Damages: If the case is tried to a jury. 2. Sears): 1. old boy who was injured while constructing a pipe bomb was precluded from recovering from a nine year old who had supplied him with the gunpowder. they may determine the amount of money the plaintiff will receive. How much force is covered by statutes in every state. the feasibility of other alternative courses of action. 1984) 1.32 3. Kallash (Court of Appeals of NY. The need for the defendant to protect persons and property. Permanent disability and disfigurement 6. a nominal award ($1). involving prohibited (not merely regulated) conduct Barker v. Hedonic damages – loss of ability to engage in once enjoyable activities • If necessary. • The judge will tell the jury what types of compensation is available for the tort action being brought • Six Elements to Consider When Determining Damgages (from Anderson v. Loss of earning capacity – Approx. in a serious criminal act 4. The manner and place of the occurrence of the unlawful conduct and 4. and/or whether punitive damages may be assessed. and that damages were caused by defendant’s conduct • **An objection to the jury instructions may NOT be raised at appeal. Future medical expenses 4. Courts consider: 1. 3. Future physical and mental pain 3. A 15 yr.

• Excessive Damages: If the award is against the weight of the evidence.-E.33 Remittitur: Motion used by defendant in order to remedy an excessively high verdict. Additur: Motion used by plaintiff granted by trial judge in cases of excessively low verdicts for the plaintiff. . the trial court judge may reduce the verdict to the highest amount the jury could have properly have awarded. • In a remittitur. Ct. and service of the other spouse. the children may bring the action for loss of a parent’s consortium • In a few states. The court denied a motion for remittitur because it found that a $2 million award to a seriously burned infant girl was less than the highest possible award supported by the evidence. 1974) 1. a court lacks the authority to reduce a jury award. -Anderson v. will give the plaintiff the option of accepting a reduced amount of damages or trial court judge will grant a new trial. parents may bring it for their loss of a child’s consortium and a sibling may bring it for loss of another sibling. If the verdict exceeds that amount. the reduced amount is typically determined under a Maximum Recovery Rule • Maximum Recovery Rule: The trial court judge will consider whether the verdict of the jury is equivalent to the highest award the jury would have reasonably been justified in making. and if granted by the trial court judge. a judge may order a remittitur -Absent consent for remittitur. Sears (US Dist. affection. • It may be brought by either spouse • In many jurisdictions. decided by trial judge) or being subject to a new trial on the question of damages alone. • Federal courts can NOT use additur because the practice has been held to violate the right to a jury trial as guaranteed under the Seventh Amendment. • Additur is unavailable in some states PAIN AND SUFFERING DAMAGES: Calculated damages for physical and mental pain and suffering • A majority of jurisdictions allow per diem (calculated per day) arguments ---the plaintiff will argue that the jury should arrive at a damages total by multiplying the unit value by the number of units of time that the suffering may be expected to continue • Some courts look other courts’ decisions on issues similar to the one they are dealing with (follow common law) • Some states have caps on pain and suffering damages LOSS OF CONSORTIUM: Damages caused by defendant’s conduct that result in the loss of a spouse’s legal right to the company. LA. Additur gives the defendant the choice of agreeing to pay a higher amount than awarded by the jury (amt.

The court reasoned that there was no “double-recovery” because the plaintiff’s insurance company was required to compensate the plaintiff as result of his premium payments. where the recovery of the cost of future periodic medical treatments intended to facilitate the early detection and treatment of diseases caused by exposure to toxic substances. Effort (needed to obtain the treatment) 5. Southern CA Rapid Transit District (S. Expert testimony regarding possible risk of disease caused by the exposure in the future 4. • This rule has been extensively modified in jurisdictions that still maintain use of this rule. cost of hiring someone to do the work of an injured spouse. Toxicity of the chemicals exposed to 3. Expense of the treatment 4. Significance of exposure 2. yet the court held that he may recover the value of his damages regardless. • Helfend v. AVOIDABLE-CONSEQUENCES RULE: A plaintiff may NOT recover for any aggravation of damages which could have been avoided by the exercise of reasonable care after the legal wrong was committed by the defendant. if the seriousness of the plaintiff’s injuries at the time of trial were a result of the plaintiff’s unreasonable failure to obtain medical assistance. of CA. the recovery will be limited to the amount of damages expected to be incurred had the plaintiff reasonably sought treatment. It held the plaintiff shouldn’t be punished for having insurance. 1970) 1. and compensation for loss of companionship and affection. • If the plaintiff has been compensated by personal medical insurance or any other gratuitous service for his injuries.34 • Damages: May include medical expenses paid for the injured spouse. Risk of the treatment needed 2. • In Determining What is Reasonable Post Accident Conduct: Consider--1. • Thus. Pain to be caused to the plaintiff by the treatment • **Unreasonable failure to mitigate damages is a defense in a negligent action (but NOT recklessness actions or intentional torts) . Ct. The seriousness of the disease COLLATERAL SOURCE RULE: Where the defendant’s liability is NOT reduced despite the plaintiff receiving compensation from a source wholly independent of the tortfeasor defendant. The plaintiff’s medical expenses had already been paid by his personal medical insurance company. the defendant still must pay the damages he caused. MEDICAL MONITORING: Some courts allow an award of damages for medical monitoring. 2. Probability of Success of the necessary treatment 3. • Factors considered when instituting medical monitoring are: 1.

-Gonzalez v. 1991) 1. Ct. • If the plaintiff dies. Ausland (S. • “Companionship and Society”: Most states in wrongful death suits allow for the recovery for lost companionship. OR. guidance. The court held that the plaintiff was allowed to recover her verdict since she had substantial evidence to justify her failure to have the knee surgery. adult grandchildren of their brutally murdered grandmother was allowed because the grandchildren had received meals. many courts will allow juries to give damages for pre-impact terror Wrongful Death Statutes: Creates a cause of action for the benefit of a defined class of persons left behind when the defendant has tortuously killed someone. 2.By interpretation of “Actual” or “Pecuniary” damages -Pecuniary Damages: damages that can be estimated and monetarily compensated. and the pain caused by the surgery. SURVIVAL ACTIONS AND WRONGFUL DEATH ACTIONS Survival Statutes: Statutes that provide that an action survives after the death of the plaintiff or the defendant. A wrongful death award to the independent. -If the decedent survives for some time then dies. The damages were held to “pecuniary”. likelihood of success of the surgery. The court said that in determining whether the plaintiff’s refusal to submit to an operation that would have cured her knee injury was unreasonable. the court will look at the decedent’s suffering prior to death -If the decedent dies immediately. the claim is prosecuted by the estate. and guidance from the decedent.35 • • **Intentional failure to mitigate damages is a bar to recovery in an intentional tort action. society. NY City Housing Authority (Court of Appeals of NY. allowing the plaintiff to seek damages for pre-judgment interest in order to compensate the plaintiff for time waiting for trial. PREJUDGEMENT INTEREST: Many states have by statute or common law. Zimmerman v. advice. • Pain and suffering damages may be awarded if the decedent survives or dies immediately. or advice. . -Statutes may allow for it “expressly” OR . 1973) 1. risk of harm. Rates vary among the jurisdictions that allow this. it was appropriate to consider such matters as cost. 2. • “Grief”: Many jurisdictions in their wrongful death statutes allow for recovery for emotional grief or anguish---it may be expressed or implied from the statute.

the jury is advised on whether certain damages will be taxable or not. courts usually admit evidence regarding the decedent’s tax liability on his future earnings.. Generally. . The court held that failure to give such instruction was an error which raised the possibility that the jury would inflate the award on the assumption that part of it would go to taxes. TAXATION OF AWARDS: • An award of compensatory damages in a personal injury case is NOT taxable. OR left out of the both calculations (depends on the jurisdiction) -O’Shea v. • Punitive damages and compensatory damages are viewed as income and TAXABLE when they are damages involving non-physical injuries. 1982) 1. • Inflation. NOT to compensate the victim. The probability of the plaintiff being employed is taken into account (Ex. • PUNITIVIVE DAMAGES Punitive/Exemplary Damages: imposed in cases involving egregious conduct in order to punish or make an example of the defendant. In federal courts and a majority of states.. 1986) 1. Health.36 LOSS OF EARNING CAPACITY: Where the plaintiff was employed at a fixed wage at the time of the injury. Riverway Towing (US 7th Cir.Should be taken into account calculating both future earnings and discount rates. age. A history of earning. -In re Air Crash Disaster Near Chicago (US 7th Cir. credentials) 4. An award of lost past earnings by may be enhanced by prejudgment interest 5. A riverboat cook injured on the job sought damages for lost earning capacity and the court took the approach of adding inflation to both lost future earnings and discount rate. he may recover lost earnings equivalent to the amount of the fixed wages. such as harm to one’s reputation or emotional distress. • Recovery for “Impairment of Earning Capacity”: Allowed when the plaintiff was employed on some basis not conducive to exact compensation OR if the plaintiff was unemployed at the time of the injury • Factors Used By Juries To Determine Earning Capacity: 1. personal habits. is useful but not essential 2. Mortality tables to assess loss of “future earnings” 3. an award of “lost future earnings” is reduced to present value. -Punitive damages are ALWAYS taxable • There is taxation on general settlements and lump sum awards in tort actions -EXCEPTION: Taxation can avoided if there is a structured settlement • Wrongful Death Cases: Where damages are calculated based on what the decedent would have contributed to the survivors.

reckless conduct or gross negligence Assessment of Punitive Damages Depends on the State: • Not available in some states unless compensatory damages are also assessed • Some states allow punitive damages to be assessed with nominal damages • Are insurable in some states • May be limited in amount in some states by legislative created caps (statutes) • Are NEVER available for mere negligence • May necessitate a bifurcated trial (one part on liability. OR Willful indifference. OR For intentional acts of malice. Campbell (US Supreme Court. including punitive damages) • Punitive damages may be subject to partial forfeiture (remittitur) Punitive Damages Factors (for consideration by judge/jury) • Magnitude of risk (created by defendant’s conduct) • Awareness of risk • Duration of failure to act • Compliance with regulations • Purposeful creation of danger (for plaintiff) • Need for deterrence (of conduct similar to defendant’s) • Wealth of defendant (What amount of damages would punish rich defendant) Punitive Damages: Constitutional Due Process Must be Observed: • Respondeat Superior liability is permissible • Punitive Damages may be grossly excessive depending on: -the reprehensibility of the conduct -the ratio of compensatory damages and punitive damages (the difference between the harm actually suffered and the punitive damages awarded can’t be great) -They may NOT exceed a single digit ratio. except in rare cases (See State Farm v. second part on damages. Punitive Damages can NOT be based on: -Conduct that was lawful where it occurred -Conduct occurring outside the forum state -Other dissimilar acts -Hypothetical claims of third parties . Campbell) -the difference between the award and criminal and civil penalties for similar conduct Punitive Damages: May NOT consider other acts of defendant: • State Farm Insurance Co.37 • • • May require “clear and convincing proof” of egregious conduct. v. 2003) 1.

where there should be liability assessed when there was a natural and continuous sequence that was a substantial factor in injuring the plaintiff. Long Island Railraod Co (Court of Appeals of NY. 4. Palsgraf could recover from the railroad company for injuries she sustained while she was standing on the opposite end of the station when a scale fell on her caused by the explosion. William Andrews’ dissent spelled his belief the defendant was liable through a theory of proximate cause. Duty 2. except in cases where there was particularly egregious conduct but little economic damages 4. but when they did he dropped his package. which exploded.38 2. 2. and no liability for negligence. Railroad guards attempted to boost a man running to catch a train leaving the station. THE NEGLIGENCE BALANCING TEST ***The fact that there is a remote possibility of personal injury or property damage is ordinarily not enough. CHAPTER FIVE: NEGLIGENCE – BASIC PRINCIPLES NEGLIGENCE: Conduct which poses an unreasonable risk of harm to others • It is a question fact for the jury or fact-finding judge 4 ELEMENTS OF NEGLIGENCE (all must be present): 1. there was no duty to her. 1928) 1. Breach 3. . The Cardozo majority held that because there was no reason to foresee the possibility of injury to Palsgraf or to others. The court held that a defendant should be punished for harm he committed against plaintiff but NOT for being an unsavory individual or business 3. Damage THE CONCEPT OF DUTY Palsgraf Duty Rule: The risk that can be reasonably perceived defines the duty to be obeyed • One owes a DUTY of reasonable care to those who may be harmed by one’s actions if that harm is foreseeable to the actor Palsgraf v. 3. When compensatory damages are substantial. Causation • Cause in Fact • Proximate Cause 4. Few awards exceeding a single digit ratio will satisfy due process. the punitive damages may only be equal to or less than the compensatory damages in order for due process to be satisfied. The question was whether Mrs.

although foreseeable. Lacopo (Court of Appeals of NY. was injured by the defendant when his tee shot struck the plaintiff. A barge belonging to the plaintiff had broken away from its mooring because of the negligence of the defendant’s employees in moving the ropes. 1947) 1. The plaintiff. 2. the reasonable prudent person would take corrective action to avoid the small risk of serious harm. Risk: • Social value of the interest imperiled (made dangerous/harmful) • Likelihood of harm • Extent of harm • Number of persons affected . (US Court of Appeals -2nd Cir.39 • Nussbaum v. Carroll Towing Co. Risk Balancing Test: Risk of harm may be balanced against the “utility” of the actor’s conduct taking measures to prevent the harm. Gulf Refining Co. Utility: • Social value of the interest to be advanced • Likelihood of advancement • Availability of alternatives: technical feasibility. but there was probability of great harm in such a busy wartime harbor. 2.Ct. 1970) “Golf course case” 1..” • Learned Hand’s Balancing Test: Conduct is negligent if the Burden of the prevention is outweighed by the gravity of the Loss times the Probability of the harm. Utility v. The case illustrates the rule that a person cannot be expected to guard against harm for events which are so unlikely to occur that the risk. Williams (S. 1938) “Bung Cap” case 1. The golfer was not found liable. whose property abutted a golf course. Mississippi. Illustrates rule that “Where the gravity of potential harm increases. A spark caused by a defective bung cap on a gasoline drum started a fire which injured the plaintiff. Known for Learned Hand’s test in this case. v. would commonly be disregarded. 2. efficacy 2. The court held that the plaintiff was contibutorily negligent in not having a watchman aboard to take corrective action and could not recover since the burden of having a watchman was low. B < L x P = NEGLIGENCE B > L x P = NO LIABILITY • United States v. 1. economic and other costs.

Court held that the physical handicap was a relevant circumstance but it did not change the standard of care. Defendant was found negligent.A blind man was injured in an accident on a public sidewalk. 1902) • A 4 yr. B. only a FACTOR on whether the person behaved reasonably in the emergency situation. Example: Chicago B&Q RR Co. Krayenbuhl (S.40 3. 3. which was that of another blind person. Ct. a relevant factor. 2. old child was injured while playing inside an unlocked railroad turntable area. 3. Legislatively Determined Standard. Religious Beliefs: Generally. Competence may be considered in deciding if the doctrine should apply.Legislators state an expected standard of care in a statute 4. Clark. • . • The court focused on the utility of the defendant’s conduct and the alternative measures the defendant could have taken to prevent the substantial risk of serious harm to public. Judicial Interpretations of Statutes. Medical Emergencies typically allow volunteers to render aid at the scene but may be liable for conduct more blameworthy than ordinary negligence. of NE. 2. -Hill v. but does NOT change the standard of care. Emergencies: Does NOT change the standard of care. When the actor creates his own emergency by his own actions. Physical Disabilities: If an actor has a physical disability. C. Used Sudden Emergency Doctrine -EXCEPTIONS: A. Judge-Made Standards. the actor’s conduct is negligent if it does not conform to that of a reasonably careful person with the same disability. some courts may judge standard of care for a person of certain sect. -In Young v. Fact-finder Determination. City of Glenwood. and defense argued contributory negligence. v.A court can state as a matter of law what is required of a person in a given situation and express that determination in jury instructions. the Sudden Emergency Doctrine does NOT apply. a driver was not held liable he slammed his car into car in front of him because a 3rd party driver caused him to do so in an emergent situation.A court may define a standard of care in reference to a similar legislative enactments (like penal codes) Considerations a Jury May Take into Account (Do they change the standard of care?) 1.Jurors or judge may determine on an ad hoc basis based on facts of a given case. Reasonable Prudent Person Standard • Ways the Standard May be Established: 1.

Superior Skills or Knowledge. the Court did not allow the instructions to be changed despite affirming the above exception. but this is a question of fact for jury.Some courts hold that the question of whether to judge children at the same standard as adults is whether the activity is one which is normally engaged in only by adults. temporary insanity. Allen. (some do it at 7 yrs. or if there are adult qualifications required.Most jurisdictions hold that an actor who is mentally deficient or temporarily/permanently insane receives no special consideration in determining whether the actor acted reasonably. unexpected. Age. of age) 5. such as what would a child of like age. -Goss v.. prudent person of this religion do under the same circumstances?” -Avoidable Consequences Rule: A party who claims to have suffered damages by the tort of another is bound to “to use reasonable and proper efforts to make the damage as small as practicable. the incurred loss justly falls upon him. is a dangerous activity. -The maximum age for the children’s standard is usually set at 17 yrs. It’s a question of fact for a jury to decide. -Most jurisdictions hold that an actor’s mental deficiency is always relevant to the issue of contributory negligence 6. not judge. -One who holds himself as having “superior skill” or specialization must exercise those abilities .The court held (consistent with all other jurisdictions) that children are normally to be judge by a special standard. -Most jurisdictions do not allow negligence claims against children under the age of 5 yrs. Mental Deficiency. should be regarded like other temporary medical emergencies like seizures. intelligence. and experience do in similar circumstances.41 -Williams v.” and if an injured party allows the damages to be unnecessarily enhanced. -The actor will be held liable for negligence UNLESS the conduct measures up as behavior reasonable for fully sane person -EXCEPTIONS: Some jurisdictions hold that in cases of sudden. but not dispositive. and the actor will be found negligent for failing to perform with the degree of knowledge/training/skill possessed by an ordinary member of that profession in good standing. American Family Insurance Co. Bright.If the actor is apart of a specialized profession (lawyer/doctor/engineer) that standard of care will be defined with reference to that group. since the defendant had reasons to believe her conduct may occur. The jury instructions were to be “What would a reasonable.Court found that the plaintiff’s Jehovah Witness belief were relevant to the issue of mitigation of damages. • In Bruenig v. • Now seen as fault by the defendant in Comparative Fault 4.

42 -Generally. nor does a presumption of negligence arise from the fact that the professional’s efforts were unsuccessful • In Hodges v. attorneys or other professionals • Burden in Legal Malpractice Claim: High burden. Ex. the client lost his claim. The court held that where an attorney acts in good faith. Legal Malpractice – • An Attorney “Implicitly” Represents that He: -Possesses the ordinary degree of learning. When that practice was unexpectedly held invalid by the court. his error in judgment does make him liable until a last resort court holds that it is a liable mistake. Will or trust -A duty may extend to persons who may foreseeably rely on documents provided by attorneys. a plaintiff’s attorney followed a “customary” practice of serving process upon the state commissioner of insurance for out of state insurers. there is NO liability for error of judgment on which reasonable lawyers may differ • An attorney owes a duty of care to anyone who becomes a client -Some jurisdictions hold that a duty extends to intended third party beneficiary of the attorney-client relationship. plaintiff must prove that defendant attorney’s breach of the applicable standard of care resulted in damage -Some courts hold that plaintiff must prove that he would have won “but for” the negligence of the defendant’s negligence. such as an opinion letter issued to non-clients • Courts generally require a former criminal defendant client to prove innocence of the crime charged as an essential element of their malpractice claim • Care must be exercised in making referrals by doctors. also applicable to business negotiations -Split authority on liability of “negligent” settlements • Expert Testimony normally required on the issue of whether a particular course of conduct was negligent ---if NOT. skill. 7. a professional does not “impliedly” guarantee a successful result. and ability -Will exercise his or her best judgment -Will be diligent and careful in exercising his professional skill and knowledge • Generally. procedure knowledge commonly possessed and exercised within the forum’s jurisdiction (the state) . Carter. the claim will fail -**The standard by which the expert should testify to is that of the degree of knowledge. skill. diligence. courts hold that greater experience does NOT change the standard of care -**In the absence of an express agreement.

43 -No locality rule in legal malpractice (cant use standard of one town only). and that the nondisclosure was causally related to some injury -If the treatment is completely unauthorized and without consent at all. See Helling v. Carey – Helling (P) went to her eye doctor (D) several times for a continuing condition regarding her loss of vision. Bradford – A doctor failed to disclose the risk and possible complications of a surgery. The court used a test of whether a reasonable patient would have undergone the treatment if they knew the risks and alternatives 9. There is a sure emergency (patient is no condition to determine whether the treatment should be administered) -The test for materiality is whether the matter is likely to affect patient’s decision on the treatment -Plaintiff’s burden: Show failure to disclose. it could enlarge risk of previous condition) C. however may be used in medical malpractice 8. Gender. Carey for a recognized test for judgemade standards.The same standard applies to both men and women 10. Helling v. which could have been determined by a simple test. The court held that it is the duty of the courts to say what is required to protect patients from damaging results of common diseases. The court stated that the reasonably prudent standard should have been followed since D’s error proximately resulted in P’s injury. Medical Malpractice – The fact that someone would have done something different is irrelevant – to decide malpractice look at doctor’s procedure and decide if that was conduct no other doctor would have done in the same instance • Doctors will usually be judged by the community or school which they trained under or prescribe to • Informed Consent: the failure to obtain informed consent is professional negligence even if the treatment was skillfully rendered -A Physician must disclose all material risks and alternatives. Later. . 1. Except When: A. Courts can create tests for certain causes of action in certain situations. P discovered she had glaucoma. Educational Malpractice –Courts typically refuse to recognize it • Judge – Made Standards: Courts may attempt to articulate definitive rules of conduct on issues of continuing importance. Disclosure would be detrimental to the patient’s best interest (if patient knows. or should be known to the reasonable patient B. The information is. the action is for battery -Scott v.

AND 2. Standards Adopted by Courts Based on a Statute (see below) 2. Incapacity to Comply (too young. etc.44 • Negligence Based on Violation of a Statute: With regard to proving negligence based on violation of a statute. Was the violation causally related to the plaintiff’s damages? 5. incl. Inability to comply despite one’s diligence (try but cant) D. Its title C. Whether the harm to the plaintiff is of the type that was intended to be prevented (Courts taking this approach occasionally find that there is implicit legislative intent to create a standard of care) 3. only need to look constitutionality of rule and applicability of facts to rule B. should judicial restraint be exercised. are there causation problems. Did the statute set the standard of care (2 kinds) A. congressional findings • . statute set standard B. Negligence Per Se – (Sure Breach) Jury is instructed that if it finds that the facts establish an unexcused violation no further inquiry needed. What is the procedural effect of an “unexcused violation?” 3 types A. Prima Facie Negligence – (if not rebuttable breach) Violation establishes Presumption of negligence that may be rebutted by showing of a adequate excuse C.) B. The language of the statute B. Was there an excuse for the violation? (Possible Excuses for negligence per se) A. is there an exclusive remedy already declared in the statute. -In determining the legislative intent as to whether a statute protects a particular type of harm or class of persons. Whether the plaintiff is within the class of persons the statute was intended to protect. physical disability. Legislative history. Compliance would result in greater risk of harm F. obsolete. Some Evidence of Negligence – (Arguable breach) Violation is only evidence to which the jury may accept or deny as proof of negligence 4. Is recovery barred by available defenses? Standards Adopted by Courts Based On Legislation: Courts will consider – 1. No compliance because of an emergency E. Ignorance of the need to comply (you don’t know you broke rule) C. There may be other excuses 3. courts look at : A. A court may also consider if the statute is: vague. Statutes intended by the legislature to set standard – Civil liability will follow the rule set. a line of inquiry that may be used (by judge/jury) is to ask: 1.

and was not intended to prevent injuries. . Shyne – Where there was a penal statute in NY regarding practicing medicine without a license. The court reasoned that applying a “but for” test. additional precautions beyond the statutory minimum may be required -Montgomery v. Brennan. Practicing with absence of a license does not by itself impose negligence. Royal Motel – Where court held that the defendant motel was not liable to the plaintiff patron because the situation was normal since there was no previous special reason to go beyond the type of locks that were used. the court held that injury caused by neglect of duty “imposed by a penal code there can be a civil remedy. the court held that in the action against the rink.Where a 13 yr. -Stachniewicz v. that the fight would not have occurred “but for” the serving of the X number drink to violator. • Compliance with the Statute: Compliance with statutory requirements does not necessarily establish the defendant acted reasonably – if the situation is more hazardous than usual. -Even if a statute is held to protect a different class or different type of harm. negligence still may be found under the reasonable person standard applied to the facts of the case. but the injury must follow from neglect by defendant. -Courts may rely upon a criminal/penal statute in order to find a standard of care for certain conduct Examples: -Pelkey v. Mar-Cam. the court refused to hold a violation of that law could be used to prove negligence. the statute the plaintiff relied upon prohibited children below the age of 16 from going to ice rinks after 7 p. it could not be said that serving one more drink to one already drunk. Compliance with the city ordinance was enough in this case.m. old girl was injured while roller skating . -Brown v.45 -Safety statutes are generally not interpreted to protect professional rescuers -Exclusvie Penalties – A court may NOT adopt a statute as setting the civil standard of care if the legislature “intended” that the specified penalty be the exclusive sanction for an infraction OR if the legislature states the rule cannot be interpreted any other way. Corp. – Although the statutory provision was arguably intended to prevent physical injuires to patrons like the plaintiff.

OSHA. divergence allows for “rebuttable presumption of negligence” B. SPECIAL STANDARDS OF CARE: Degrees of Negligence: Slight Negligence. Garavalia – Where the court imposed absolute liability on defendant after the plaintiff child was injured by a dog bite from defendant’s dog. Utilities or Innskeepers d. The state had a statute specifically appealing to that cause of action. • Does NOT create a standard of care • TJ Hooper – A set of barges capsized in a storm after the tugboats pulling them had failed to receive a crucial weather report since the tugs did not have radios. Circumstantial Evidence • Proof of Negligence: 1. EXCEPT IN CONNECTION WITH --a. dog-bite laws. Evidence of Custom – Conformance with custom raises an inference of reasonableness and departure from custom raises an inference of unreasonableness. Common Carriers b. Seim v. and court implied absolute liability without an affirmative defense or contributory negligence. Some states have statutes for certain classes CHAPTER 6: PROVING NEGLIGENCE A. age for dangerous job. Direct Evidence – Evidence directly supporting the finding of fact in question. Ordinary Negligence and Gross Negligence • Prevailing View – Rarely employed. ex. gun laws. Eyewitness testimony . -Limited Class of Laws May Include – Min.46 • Statutes Allowing No Excuse or Defense – Some states may enact laws that the courts may interpret as implying either strict liability or absolute liability. The court found that there was no custom diverged from. Bailments c. FDA -Absolute Liability Rule – Applied by some courts when an injured individual falls into an intended protected class and actors can’t defend themselves or where statute declares no defense for a particular conduct. but that divergence does not necessarily mean that one was not negligent. Ex.

1.47 2. the event giving rise to the harm must be one that does not generally occur in the absence of negligence. C. Circumstantial Evidence – Evidence from which the fact in question can be inferred. and D breached his duty of care not pick it up. ex. Where a jury may infer negligence: • from the duration risk present. • Ex. 1. Res Ipsa Loquitur . -Constructive Notice –Established where a danger existed for so long that it should have been discovered through exercise of reasonable care. 4. then the defendant must have had either actual or constructive notice of the danger. and gritty. Where the banana peel was dark. OR where it was foreseeable loose grapes from a shelf in a store may fall on the floor and failure to supply non-skid mats was negligent. even in the absence of the specific condition that caused the harm to P. the failure to take precaution may give rise to liability. An event that does not normally occur in the absence of negligence . Selling pizza on waxed paper to customers who would consume it while standing on a slick marble floor. LIABILITY FOR NEGLIGENCE DEPENDS ON FORESEEABLITY. tire marks -Banana Peel Slipping Cases Cases: A. but courts generally require that the in order to use Res Ipsa. Allow the plaintiff to survive the defendant’s “No evidence” summary judgment motion to dismiss Res Ipsa Evidence: In order to Use the Doctrine. 2. • the proximity and opportunity to discover the risk by D prior to plaintiff’s injury and • Where there is evidence of prior occurrence of dangerous conditions in the past 3. Res Ipsa Loquitur doctrine eases the difficulty of the burden of proof by raising inference of causation and negligence by D. NOT NOTICE • If a danger was NOT foreseeable.” Res Ipsa Loquitur – A type of circumstantial evidence where the mere occurrence of a certain event may allow a jury to reasonably infer both negligence and causation and defendant’s relation to it. there must be…. a court may hold that it was “reasonably inferred that the peel was in place of accident for some time.“The Thing Speaks for Itself. Mode of Operation – IF the defendant’s method/mode of operation makes an injury foreseeable. Finger prints.

Spangard (S.48 2. Presumption that shifts the burden of persuasion (esp. of CA. not defendant.Ct. Presumption that shifts the burden of going forward with evidence 3. may give rise to either A) an Independent Tort (Spoliation of Evidence) OR B) Presumption of guilt or sanctions against Defendant (More usage) • Factors that May Be Considered to Determine Spoliation of Evidence: 1. ethically. Jury found all liable to P. but has all access to vital evidence to P’s case. Defendant’s Response to P’s Use of Res Ipsa Loquitor . And where there are facts that defendant’s conduct more likely than not was the cause of the event CONSIDER: • Defendant’s exclusive control over and the responsibility for the instrumentality that gave rise to the injury -Ex. When none of the D’s would say who was liable.The defendant often will respond by producing rebuttable evidence that due care was in fact exercised by the defendant.Majority 2. reckless or negligent . Construction workers injured by a chemical explosion at the chemical plant they worked at had their suit allowed to continue since the court held that the defendant chemical company had exclusive control over the instrument that had caused the injury • Defendant’s superior knowledge or opportunity to obtain knowledge to the facts of the event causing P’s harm -Ex. multiple D’s) Multiple Defendants: Res Ipsa Loquitor may be used in regards to multiple defendants where there was multiple defendants who had either 1)Joint control over the injuring instrumentality OR 2) Had access to information related to the P’s injuries and creates a presumption of negligence against these D’s • Ybarra v. or that the injury was caused by a third party. Allows for Permissible Evidence. or regulatory) 2. Was there a duty to retain the evidence (statutorily. Was the duty breached intentional. the court based its decision to allow the case to go forward by reasoning that the defendant gas company had superior knowledge of the gas distribution system and had access to the necessary facts. Spoliation of Evidence – In cases where the defendant acted negligently. the court allowed res ispa loquitor to P to present this refusal by each D to tell guilty party. 1944): Where there were several defendants at a hospital in doctors and nurses who held responsibility of reasonable care to plaintiff patient was injured by an act not related to his surgery. Where a gas main exploded killing several persons. Procedural Effect of Use of Res Ipsa Loquitor: 3 Views Today 1. and there has been either intentional or un-intentional destruction of that evidence.

Was the evidence lost relevant. but is not entitled to more than the total loss. What sanction is appropriate? -dismissal. It also was foreseeable to the mother that if she didn’t fill the car with gas it might stall out on the highway. • Example – Williams v. Steves Industries (Tex. If it is indispensable – “But for”. the plaintiff will not get “double recovery” for the same injury. • “But For” Test is a question of fact for a jury to decide as to whether P’s/D’s conduct “multiplied” the chances that harm may occur • Direct or Circumstantial Evidence can support Factual Causation • There may be more than one “But for” cause to P’s injury • STUDY FIRE SCENARIOS ON PAGE 375 IN SATL Joint and Several Liability – When more than one defendant is found liable. preclusion. 1985). NEED PROVE BOTH 1.49 3. but will receive compensation from either from only one of the D’s. or partially from both. PROXIMATE CAUSATION-An policy inquiry into whether it is fair to impose liability on defendant whose conduct was the factual cause of the plaintiff’s injury • Reasonable “Foreseeability” Test FACTUAL CAUSATION – • Plaintiff normally has the burden of proof in factual causation • Consider whether the defendant’s conduct was a substantial factor in bringing about P’s injury. or direct? 4. .Where a mother and her two children were killed when they were rear-ended by a eighteen-wheeler driven by D. exclusion. had her reward reduced by the mother’s comparative negligence since mother’s car would not have stalled out in the middle of a busy highway “but for” her negligence in not filling up the car with gas before she began traveling. • “But For” Test 2. circumstantial. jury instructions -REMEDY WILL DEPEND ON CULPABILITY OF DEFENDANT/3RD PARTY Spoliation of Evidence torts may be brought against Third Parties • CHAPTER 7: FACTUAL CAUSATION CAUSATION : 2 TYPES. FACTUAL CAUSATION –A factual inquiry into whether the defendant’s conduct precipitated the plaintiff’s injury. or if it is independently sufficient “But-For” Test (Sine qua non): “But for” the defendant’s conduct (negligence) the harm would NOT have occurred.

blindness. 2. Each defendant is shown to have acted tortuously. Normal Factual Causation – Burden is on the plaintiff 2. Res Ipsa Loquitor – Plaintiff’s burden eased 3. • Ex. he will be dropped from the suit. patient “lost chance” to possible recovery from cancer. this principle will likely not apply. paralysis. One of the shots put out P’s eye. loss of limb. -If the Plaintiff is found to be contributorily negligent. The court allowed the burden of proof to shift to the two D’s since both D’s were negligent and it was impossible for the P to discover which actually shot him. The actual wrongdoer is one of the small group of members of defendants presently before the court. CA.50 “Substantial Factor” Test – Factual causation test used intertchangeably with the “but for” test. Alternative Liability – Burden shifts to defendants if all were negligent and the responsible party is in court.Who Has the Burden? 1. Tice .Ct. Tice (S. the jury may be instructed to find the defendant negligent if it thought the defendant’s conduct was a “substantial factor” in producing the harm. absent proof of causation. walking in a line and a bird flew above plaintiff ---with the two defendants each firing shots.) • **Damages should be awarded in proportion based on plaintiff’s percentage of chance for a better outcome from the harm in question. (or nationwide) • Not many states have embraced this rule Perspectives on Factual Causation. Doctrine used most often in medical malpractice • Some states reject the Doctrine Multiple Fault and Alternative Liability: • The burden of proof in factual causation shifts to the defendants if: 1. • Summers v. A doctor was found negligent where failed to timely provide the proper treatment to refer a patient to another specialist who could treat the ill patient. Market –Share Liability – Apportionment of fault between multiple defendants based on their share of a particular market in a particular jurisdiction. • Ex. etc. Summers v. 1948): Where Plaintiff and two defendants were quail hunting on an open range. The nature of the accident makes it impossible for the plaintiff to prove causation • Each defendant is subject to FULL LIABILITY for P’s injuries. “Loss of Chance Rule” – Doctrine that allows the plaintiff to recover damages where the defendant’s conduct was a substantial factor in causing the plaintiff a loss of chance to escape from the harm in question (death. and 3. -If one of the D’s is able to present convincing evidence of his lack of liability.

Aiding and Abetting. involvement in arrangements for cooperation.Where there is concerted action by substantial assistance. • An agreement by two or more persons • To participate in a lawful act in an unlawful manner. defendant’s presence at time of tort. Plaintiff need not show that defendant caused the harm. California Market Share Liability – Burden shifts to the defendants if the number sued upon is sufficiently substantial to prevent injustice (likely responsible party is in court). • Well established rule in every jurisdiction 7. Two types: 1. • The defendant must be generally aware of his assistance in an overall unlawful or tortuous activity at the time defendant provides assistance to wrongdoer • And the defendant must knowingly and substantially assist the principal violation • Factors for “Substantial Assisting” – nature of act encouraged. • Based market share on the state-wide market • If one defendant is dismissed by disproving liability to P.51 4. DuPont 5. NY Market Share Liability – Defendant who engaged in a particular type of conduct is liable to the P even if the defendant neither caused the plaintiff’s harm nor acted in concert with the one who did. Concerted Action Liability: Where a defendant may be held liable who acted in concert with the wrongdoer. Joint Enterprise Liability – Form of concerted action where a defendant becomes liable to P because of the nature of his partnership to wrongdoer. remaining defendants pick up his slack to the total liability to P. D’s relationship to actor. Enterprise Liability – Burden shifts to the defendants if they all jointly controlled the risk and its virtually certain the responsible party is in court • Hall v. and D’s state of mind. only that defendant acted in concert with the one who did commit the wrong. amount of assistance by D. • There is an injury caused by an unlawful overt act performed by one of the parties in the agreement • Where the overt act was done in furtherance of the common scheme. Civil Conspiracy – Where there is a concerted action by agreement. Concerted Action Liability . which gives equal right to control of the operations . Eli Lily and Co. • The party whom the defendant aids must perform a wrongful act that causes injury. • Based market share on the national market • Hymnowitz v.Liability may be maintained against a person who stood in a particular relationship with the actual wrongdoer. May be applied when there is an express/implied agreements for common purpose or community of pecuniary interest or equal right to voice direction of enterprise. 2. Abbott Industries 6. 3. • See Sindell v.

therefore hitting man who is prone to heart failure. D’s 1st Amendment rights. CHAPTER 8: PROXIMATE CAUSATION Proximate Causation: 2 Views 1. if the gravity of the threatened harm is great and the cost of adequate precautions are minimal Ex. PREVAILING VIEWS ON PROXIMATE CAUSATION: Modified Foreseeability • Plaintiff must fall. • In considering liability. within the class of persons foreseeably endangered by the defendant’s conduct Ex. • The result must fall with the scope of risks that made the defendant’s conduct negligent or otherwise tortuous Ex. determine the defendant’s level of responsibility for the act committed. and foreseeability of the act. BUT the precise details or manner of its occurrence need not be anticipated by the defendant Ex. You take P as is. If a gas station requires cars be turned off before pumping gas. Giving a child a loaded gun is negligent b/c of the foreseeable risk that it might discharge and it is irrelevant if the gun fired from being dropped instead of the trigger being pulled. it was the car rolling back over P’s leg. or encourages the tortuous action committed by another. at least generally. • Foreseeability is NOT sufficient to create liability where the harm that occurred was “too tenuous and remote” • Proximate Cause where there is foreseeability of danger Intervening and Superseding Causes . • Torts on incitement usually fail against the media. • Foresight of the remote possibility of harm may establish proximate cause. Palgraf • The broad outlines of the harm must be foreseeable.52 Incitement – Possible liability of Defendant for verbally or orally expressing a view which “incites”. Ex. • The full extent of the physical harm need NOT be anticipated. dies shortly after the accident caused by heart failure. the gas station cannot be liable to P who leaves car running but the injury that occurred wasn’t the explosion of the car. Foreseeability – Liability is limited to only reasonably foreseeable results. (Continuous Sequence) 2. Direct Causation – Liability will be imposed even for unforeseeable harm directly resulting from the defendant’s tortuous conduct. Hosting a large picnic and serving unlimited alcohol all day long with no security measures taken will lead to proximate cause if a drunk man from the party drives his car into crowd injuring people. D is still liable.

-IF the intervening cause is foreseeable. Foreseeable that not protecting a work-site next to road may allow a incapacitated driver to hit one of the workers -Ex 2. an act of intervention. • • • . an intervening criminal act by 3rd party may cause D to be liable. If D’s negligence rendered P’s injuries to point of delirium and P “unknowingly” rips off bandages and dies. DOES NOT APPLY TO PROFESSIONAL RESCUERS (cops. Ex. -If the intervening force is NOT foreseeable and NOT within the scope of the risk created by D. • Rescue Doctrine: Rules in intervening and superseding cause apply to rescuers as well – 1. then the ultimate damage caused is not defendant’s responsibility -If foreseeability of Intervening force BUT D’s conduct in no way increases risk of harm to P by the intervening force or if there is intervening criminal or intentional harm by 3rd party. D is liable for P’s injuries. firefighters) 4. EVEN IF the negligence on the part of the rescuer aggravates the P’s injuries 2. recovery for the death will be denied. who was later struck by another car that slid off icey road while P tried to flag down help. and this is true even if the victim. 3. defendant is still liable -Most courts hold that the initial wrongdoer is liable for aggravated injuries caused by ordinary negligence by medical professionals treating original injury -Ex. or within the scope of the risk that made D’s conduct negligent. D is liable. and tortuous conduct by D Intervening Acts of the Victim – A tortfeasor may be liable for injuries sustained by another in an effort to escape threatened harm. Normal rescue efforts do NOT break chain of proximate causation between the tortfeasor who created the peril and the victim. thereby absolving the defendant of legal responsibility. An injured rescuer’s claim against the creator of the peril cannot be usually frustrated by claims of lack of proximate cause.53 • Intervening Cause – Force that comes into play after tortuous conduct has occurred and actively contributes to the production of the harm for which recovery is sought. P whose car knocked off road by negligent driver D. D is not liable EXCEPTION: If the D has a duty to P (landlord/tenant). Requirements –imminent peril. as a result of fright/frenzy/panic adds to the danger by act that would otherwise seem unwise. If P has to dash across the road in order to escape being hit by D’s negligent driven car and in the process dashes through a plate glass window. Victim Suicide – IF the victim retained any capacity to know what he or she was doing. Superseding Cause – Intervening force which break the chain of proximate causation between the defendant’s negligence and the plaintiff’s harm. D liable.

Others using common law say superseding cause is “an all or nothing determination. expense) CHAPTER 9: LIMITED DUTY – FAILURE TO ACT Failure to Act: • General Rule – No duty and No liability for failing to provide assistance to one in peril • EXCEPTIONS: Where NOT to act would make one Liable 1. Character and Position of 3rd Party – Was 3rd party in much better position or had more ability/knowledge to act 5. with reasonably safe workplace & against criminal attack -Landlord – To tenant.” • Relevant Factors: 1.” • Shifting Responsibility – (Gen. less chance of shifting 3. a third persons failure to prevent the harm is a superseding cause which relieves the tortfeasor of liability for any harm incurred subsequent to the “shifting of responsibility. • In extraordinary circumstances. duty to provide adequate security for common areas 2. Rule) 3rd Party’s failure to act does NOT break causation. Magnitude of threatened harm – more serious. Lapse of time – greater amount of time btw wrong by tortfeasor. Duty Based on Relationship To Tortfeasor: . also facilitate civil claims against 3rd parties -Invitors – To Invitees onto ones land when assistance needed. inconvenience. responsibility may shift. Likelihood 3rd party will act (relationship to P. and the tortfeasor will not be liable for subsequent damages. rest likely but unsure -Carriers/Innkeepers/Utilities – Duty to help injured patron or one under attack. Duty Based on Relationship to Victim: -Family – Parent/Child (in loco parentis) is sure duty. If 3rd party and D had a contract covering situation. When the initial tortfeasor has done everything possible to avoid the harm.54 -Doctors may held liable for a patient’s suicide if it was foreseeable based on their expertise -Most states hold that unforeseeable suicide will not allow proximate causation Comparative Fault to Superseding Causes – Some courts hold that adoption of comparative fault by courts does not abolish superseding cause. also duty to provide safe conditions -Custody – Warden has duty to prevent harm to prisoner. more likely of shifting 4. school to students possibly -Employment – Employer to employee. the 3rd party assumes full responsibility 2. or his omission unforeseeable.

Ex. Creating a Dangerous Situation – One who innocently or tortuosly creates a dangerous situation must exercise care to prevent harm occurring to others. whether tortuous or innocent. that person has a duty to provide remedial assistance. -To determine liability ask: 1) Has there been an undertaking by D? (A past practice-crossing guards. the duty may arise from the supplier’s inherent right to control the property and his opportunity to do so. 4. 7. 5. 6. especially where a parent knows his child has dangerous tendancies -Mental Health Patients – A doctor who knows that a patient would cause harm has a duty to potential victims. Legislation typically bars negligence against doctors who gratuitously provide medical assistance. . if A does not stop and help a bleeding B on side of road. but also that the managing doctor must make “reasonable predictions” about the dangerous tendencies of his patients and warn potential victims when appropriate. -Information Providers – Must exercise care in providing information to a third person who may use that information to harm another individual. Entrustment of Dangerous Instrumentalities – A supplier of a chattel or land must use reasonable care to see that the instrument is not used to harm others. holding out-emergency rooms. A will be liable for the aggravation of those injuries.55 -Children – Parents may have a duty to control a child. If A’s car hits B’s b/c of B’s negligence. promises w/ out action that induced reliance. If the supplier is present. This duty may override doctor’s duty to not disclose. 3. Voluntary Assumption of the Duty – Those who choose to get involved in a certain situation must exercise reasonable care. Involvement in an Accident – If a person’s actions. AND 2) What is the duty (To whom/ what) -Rescuers may become liable for terminating its rescue Statutory Duties – Some states may have “required” Good Samaritan laws. have rendered another person helpless or susceptible to harm.

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