How to use:
The first outline consists of a larger more comprehensive description of all the material covered in the course (that I was able to get down on paper). The second outline was a shorter, very condensed "bare essentials" version used for the final exam.
I don't encourage law students to copy this or any other outline prepared by another, but rather, read through it and use it to gap-fill or review the subject matter. I do encourage students to copy the strategy of writing a condensed outline for the final rather than bringing in a giant 80+ page behemoth into finals, provided they are open book/open note. Honestly, I'd prepare short-form outlines even if it was closed notes, just to use as a study aid.
Before using or relying upon this outline, please refer to this website's disclaimer.
My Torts Outline (for a much better .doc version, click here. File hosted on Dropbox.)
II. Intentional Interference with Person or Property
1. Intent
- Garrat v. Dailey (1955)
o 5 year old pulled out a chair from under P, P injured her hip and sued
o Found that the child did not have any willful or unlawful purpose in his actions, no intent to injure P
* Act must be done with the purpose of causing contact, etc., or with knowledge on the part of the actor that such contact is substantially certain to be produced
o Age is not a factor in torts, but may be used to evaluate the mental capacity and thereby intent of an individual
- Spivey v. Battaglia
o P put his arm around fellow employee D for the purposes of mild embarrassment, as a joke
* Was unintentional, lacked substantial certainty to cause harm
- Ranson v. Kitner
o D killed P’s dog, mistaking it as a wolf accidentally, and wolves were good to shoot at that time
o D was liable for the price/value of the dog, as mistaken identity is not an issue for trespass to chattel
- McGuire v. Almy
o Mental illness as a defense in determining intent
* May still be liable, and craziness is not a defense
- Talmage v. Smith
o P threw a stick at guy, hit other person in an attempt to scare them away
o Transfer of intent. A person is responsible for injury caused, regardless of if the one injured.
2. Battery
- Restatement 2d of Torts § 13. Battery: Harmful Contact
o An actor is liable for battery if
* a) He acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
* b) A harmful contact with the person of the other directly or indirectly results
- Restatement 2d of Torts § 18. Battery: Offensive Contact
o (1) An actor is subject to liability to another for battery if
* a) He acts intending to cause a harful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact and
* b) an offensive contact with the person or of the other directly or indirectly results
o (2) An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.
- Cole v. Turner
o Battery may be found even if touching someone in anger.
- Wallace v. Rosen
o In educational context, teacher is able to touch a kid to get them to move during a fire drill. Is a privileged kind of unwanted contact.
- Fisher v. Carrousel Motor Hotel, Inc.
o Court found it constituted battery due to the proximity of the plate to P’s body, was with hostile intent.
3. Assault
- Assault is the apprehension that comes before an impending battery, which may or may not occur
- I de S et ux. V. W de S (1348)
o Wife assaulted but not actually hit, still assault.
- Western Union Telegraph Co. v. Hill
o Conduct (reaching to grab someone) not act within professional capacity that creates reasonable apprehension constitutes assault
4. False Imprisonment
- Big Town Nursing Home v. Newman (1970)
o Retired person held against his will by Nursing Home in disregard of Newman’s rights, without consent or cause, constituted false imprisonment.
- Parvi v. City of Kingston (1977)
o Does not need to be conscious of imprisonment at the time in order for it to be called false imprisonment
- Hardy v. LaBelle’s Distributing Co (1983)
o False Imprisonment requires restraint against one’s will, and if the P may leave without significant impediment then it is not tortable
- Enright v. Groves (1977)
o Claim of false imprisonment is valid if an individual is arrested for no clear reason or claim, or if such a reason is just invented later
- Whittaker v. Sandford (1912)
o False imprisonment may occur if the imprisonment is initially consensual but continues past the time consented to.
o If allowed to leave, still may be imprisoned if the method of exiting is impractical or presents a substantial barrier/is unsafe
5. Intentional Infliction of Emotional Distress
- State Rubbish Collectors Ass’n v. Siliznoff, (1952)
o Cause of action for intentional infliction of emotional distress by threats to physical well-being, even though threats may not have constituted a technical assault.
- Slocum v. Food Fair Stores of Florida, 1958
o P sought damages for emotional distress, claiming a heart attack and whatnot from insulting language
* “Content only intended to cause emotional distress only” as verbal insults not a tort in itself
- Harris v. Jones (1977)
* Four elements for liability for intentional infliction of emotional distress
* Intentional or reckless
* Extreme and outrageous
* Causal connection between conduct and distress
* Distress must be severe
- Taylor v. Vallelunga 1959
o Does not constitute intent if infliction of emotional distress was not purposefully and maliciously aimed at her.
6. Trespass to Land
- Dougerty v. Stepp (1835)
o All unlawful entries, even those without any damage to the land, are tortuous, and constitutes a trespass to land
- Herrin v. Sutherland (1925)
o Nominal damages for trespass in the case of shooting over a person’s land. Despite no physical pass, the gun shot and the noise was sufficient for trespass.
- Rogers v. Board of Road Com’rs for Kent County (1947)
o Item on land, with permission, that is left for an extended period of time becomes trespass because it is left beyond the agreed upon time.
* Restatement says “failure to remove a thing placed on the land pursuant to a license or other privilege” is trespass
7. Trespass to Chattels
- Glidden v. Szybiak (1949)
o If an individual is injured by chattel while trespassing to that chattel, the individual is not prevented from seeking remedies due to trespass.
- Compuserve v. Cyber Promotions (1997)
o Digital communications are sufficiently tangible to support a trespass claim
- Zaslow v. Kroenert (1946)
o No conversion, trespass to chattels for which plaintiff may recover only actual damages suffered by reason of the loss of the use of property because the trespass was not serious enough, and the displacement was temporary and necessary.
8. Conversion
(A) Nature of the Tort
- Restatement 2d §222A. What Constitutes Conversion
o 1) Conversion is an intentional exercise of dominion…over a chattel, which…interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.
o 2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value the following factors important:
* a) The extent and duration of the actor’s exercise of dominion or control; b) The actor’s intent to assert a right in fact inconsistent with the other’s right of control; c) The actor’s good faith, d) The extent and duration of the resulting interference with the other’s right of control, e) The harm done to the chattel; f) The inconvenience and expense caused to the other.
- Ways in which chattel may be converted
o 1) Acquiring possession of it, like stealing the chattel, 2) Damaging or altering it, 3) Using it, 4) Receiving it, 5) Disposing of it, 6) Misdelivering it, 7) Refusing to surrender it
- Pearson v. Dodd (1969)
o Property taken from the rightful owner and made to be used for the other’s own purposes may be “converted.”
* Taker is responsible for the value of the property to the original owner, essentially forcing a sale
(B) Effect of Good Faith
- May be subject to liability for conversion although not subjectively at fault
o Such as a delivery to the wrong person made due to fraud of the subject of delivery
* Some modern statutes grant privilege
o Buying stolen goods, the good faith buyer still will not have legitimate claim to the stolen good
* If a thief obtains an item of value through trade, even undervalued, the thief has title and may sell it, so that a good faith purchaser has valid title and the purchaser is not subject to conversion
(C) Necessity of Demand; Return of Chattel
- Demand
o Some states, possession by innocent converter is only liable if refusing to return chattel on demand
- Return
o Return of item does not bar conversion, but it must be taken into account for the damages recoverable
(D) Damages
- The measure of damages for conversion is based on the value of the property in question
o Normally this is market value, but sentimental objects, D may sue for emotional harm
(E) What May Be Converted
- Traditionally goods capable of being lost and found, i.e. chattel not land
o Can now also apply to stocks or digital information
(F) Who May Maintain the Action
- Anyone in possession of a chattel at the time a conversion can maintain action for it, so that even a finder may recover for conversion
III. Privileges
1. Consent
- O’Brian v. Cunard S.S. Co. (1891)
o Consent is determined by external manifestations, not internal objections to a proceeding/event/action
- Hackbart v. Cincinnati Bengals, Inc. (1979)
o Consent to Event that’s inherently dangerous makes actions in the normal course of Event consensual.
- Mohr v. Williams (1905)
o Giving consent to one medical procedure does not give consent to another procedure.
o Privilege exists in medical procedures in cases where the patient cannot give consent, or there is an immediate risk of serious bodily harm, or if the doctor has no reason to believe that the patient would not consent, or in similar cases of emergency medical procedures.
- De May v. Roberts (1881)
o If an individual has consent on false pretenses, then their action may still be tortuous
2. Self-Defense
- Existence of Privilege
o Anyone is privileged to use reasonable force to defend oneself against a threatened battery on the part of another
- Retaliation
o No privilege when threat is no longer present, and the victim may become liable for battery
- Reasonable Belief
o Privilege exists when defendant believes that force is necessary to protect oneself, even though there may not be any actual necessity in fact.
- Provocation
o Verbal insults or threats do not justify the exercise of self-defense
- Amount of Force
o Force used must be reasonable and appropriate to the threat
- Retreat
o Some disagreement, but generally, if one is able to easily and safely avoid danger then they are expected to do so and the privilege may not exist for self defense if one does not retreat.
- Injury to Third Party
o Transfer of intent applies so that the privilege will carry over if defending oneself appropriately and a third party is inadvertently injured
3. Defense of Others
- Nature of Privilege
o Is recognized privilege similar to that of self-defense
o Most questions relate to reasonability of force
* Upheld when a) threats made to a family and a defendant shot a man outside their residence holding a flashlight, b) father shot a boy that wouldn’t stop beating up his son, etc.
- Reasonable Mistake
o Effect of reasonable mistake as to the necessity of taking action
* Some say “step into the shoes” of the third party, and privilege only exists when the person would be privileged to hold themselves
* Other courts say that the use of reasonable force to defend another even if there is a mistake is privileged, so long as the mistake was reasonable.
4. Defense of Property
- Katko v. Briney (1971)
o An owner may not use deadly force, or set traps capable of inflicting death or serious injury, to defend unoccupied property against trespass. Property owner may be liable and not privileged to defend their property by such means.
5. Recovery of Property
- Hodgeden v. Hubbard (1846)
o The use of force in recovering property is not privileged, generally.
- Fresh pursuit
o Any undue lapse of time during which the pursuit has not been commenced, or has come to a halt, will mean that the owner is no longer privileged to fight himself back into possession, but must resort to the law.
- Bonkowski v. Arlan’s Department Store (1968)
o A merchant has a protective interest in protecting its property and is allowed to request and detain, with minimal force, a customer reasonably suspected of stealing merchandise
6. Necessity
- Surocco v. Geary (1853)
o If a normally tortuous action is done with a reasonable amount of force in order to protect society or the civil government, then it may be privileged
- Vincent v. Lake Erie Transp. Co (1910)
o Private property may be used by another party in times of emergency to preserve the value or safety of another property (such as a dock to protect a ship), but the non-owner is liable for those damages
9. Justification
- Justification is the general overarching term for privileged actions
o Sindle v. New York City Transit Authority (1973)
* “Restraint or detention, reasonable under the circumstances and in time and manner, imposed for the purposes of preventing another from inflicting personal injuries or interfering with real personal property in one’s lawful possession or custody is not unlawful…A parent, guardian, or teacher entrusted with the care or supervision of the child may use physical force reasonably necessary to maintain discipline or promote the welfare of the child.”
IV. Negligence
2. Elements of Cause of Action
- Negligent/Negligence
o Cause of action for negligence requires several things beyond negligent conduct
* Duty to use reasonable care
* Breach is a failure to conform to the required standard
* Causation is the connection between the conduct and the resulting injury
* Damage is the actual loss resulting to the interests of another
3. A Negligence Formula
- Restatement 3d §3. Negligence
o A person acts negligently if the person does not exercise reasonable care under all circumstances. Primary factors to consider in ascertaining whether the person’s conduct lacks reasonable care are the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm
- Lubitz v. Wells (1955)
o An object must be “intrinsically dangerous” if it is to be found that leaving that object out is negligent behavior. (Golf club).
- Blyth v. Birmingham Waterworks Co. (1856)
o “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.”
- Pipher v. Parsell (2007)
o For negligence, must establish that “defendant owed plaintiff a duty of care; defendant breached that duty; and defendant’s breach was the proximate cause of the plaintiff’s injury.”
- Chicago, B. & Q.R. Co. v. Krayenbuhl (1902)
o “the fact that the children were trespassers on the defendant’s property did not deprive them of the right to enforce defendant’s duty to use reasonable care to make its premises safe”
- Davidson v. Snohomish County (1928)
o A party is not negligent for creating a situation that protects against all possible damages, but rather only for areas of special danger or substantial risk.
- The United States v. Carroll Towing Co. (1947)
o Three standards for determining the appropriate level of care: 1) probability of damages, 2) gravity of resulting damages, 3) burden of adequate precautions. (Burden > or < damages times probability)
4. The Standard of Care
(A) The Reasonable Prudent Person
- Vaughan v. Menlove (1837)
o Origin of the reasonable person standard, which is a standard of care measured by what a reasonable person, given the situation, would do in exercising seemingly sound judgment, taking into consideration an individual’s capabilities and the situation one finds oneself in.
- Delair v. McAdoo (1936)
o “Any ordinary individual…knows that when a tire is worn thorough to the fabric, its further use is dangerous and it should be removed.” D should have known and had reason to know, and therefore is guilty of negligent action.
- Trimarco v. Klein (1982)
o Negligence requires prior notice or reasonable suspicion that a person would have some reason to believe that a risk was present. If conduct is reasonable, then there is no negligence present. Custom as a relevant factor in determining what is reasonable care.
- Cordas v. Peerless Transportation Co. (1941)
o State does not hold one in an emergency to the exercise of that mature judgment required of him under circumstances where he has an opportunity for deliberate action.
- Roberts v. Louisiana (1981)
o Handicapped individuals are given a wider latitude for negligence than a non-handicapped person given what is reasonable in their situation. (reasonably prudent blind person)
- Robinson v. Lindsay (1979)
o Because petitioner was operating a powerful motorized vehicle, he should be held to an adult standard of care and conduct expected of an adult.
- Breunig v. American Family Insurance Co.
o Insanity may provide defense to a negligence case where the driver is suddenly overcome without forewarning by a mental disability or disorder which incapacitates, conforming his conduct to the standards of reasonable man under like circumstances.
(B) The Professional
- Heath v. Swift Wings, Inc. (1979)
o One who engages in business, occupation, or profession must exercise the requisite degree of learning, skill, and ability of that calling with reasonable and ordinary care. (Generally, not individually, given their experience.)
- Hodges v. Carter (1954)
o When evaluating negligence on behalf on an expert, the reasonable prudent person standard is measured by 1) does he possess the requisite degree of learning, skill and ability necessary, 2) did he exert his best judgment, 3) did he exercise reasonable and ordinary care and diligence
- Boyce v. Brown (1938)
o In considering medical malpractice, one must consider 1) one licensed to practice medicine is presumed to possess the degree of skill, 2) Before a physician or surgeon can be held liable as for malpractice, he must have done something… forbidden… or neglected to do something… 3) negligence is never presumed, but must be proven…
- Morrison v. MacNamara (1979)
o Reasonable persons standards involve the standards for individuals in a particular area. In this case, an expert medical witness from out of state does not provide support when other expert witnesses from the area claim that the procedure was acceptable.
- Scott v. Bradford (1979)
o Informed consent for medical malpractice, it is a physician’s duty to notify a patient of possible risks, or it is negligence. Patient must prove 1) defendant failed to inform adequately of a material risk before securing consent to the treatment, 2) if he had been informed of the risks he would not have consented, and 3) adverse consequences did occur and he was injured as a result of the treatment.
- Moore v. Regents of the University of California (1990)
o 1) a person of adult years and in sound mind has the right to determine whether or not to submit to lawful medical treatment, 2) patent’s consent to treatment must be informed consent, 3) physician has a duty to disclose all information material to the patent’s decision. A physician must disclose personal interests that may affect the doctor’s professional judgment, and failure to do so may give rise to cause of action.
(C) Aggravated Negligence
- Degrees criticism
o Difficult to set lines, as they are subjective and wiggly depending on the situation
- Degrees of Care
o Care required by the reasonable person varies according to risk involved
* Things known to be dangerous, such as explosives or electricity, the actor is required to exercise caution commensurate with it.
* A common carrier, such as a bus driver responsible for others, must exercise additional.
- Degrees of Negligence
o Slight negligence as a failure to use great care
o Ordinary negligence as a failure to use reasonable care
o Gross negligence as a failure to exercise even slight care
- Wilful, Wanton and Reckless Conduct (generally the preferred standard for extreme cases of negligence)
o Class of conduct between negligence and intentional torts that involves a deliberate and intentional disregard for a known high degree of probability of harm to another.
5. Rules of Law
- Pokora v. Wabash Ry. Co. (1934)
o In the question of how much care is appropriate, Standards of behavior may not be determined by extraordinary situations, but rather for the commonplace or normal. The question that must then be asked is if a person exercised care that would be sufficient for the commonplace or normal situation.
6. Violation of Statute
- Osborne v. McMasters (1889)
o Where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute or ordinance was designed to prevent.
(A) Applicability of Statute
- Stachniewicz v. Mar-Cam Corp. (1971)
o A violation of a statute or regulation constitutes negligence as a matter of law when the violation results in injury to a member of the class of persons intended to be protected by the legislation and when the harm is of the kind which the statute or regulation was enacted to prevent.
- Ney v. Yellow Cab Co. (1954)
o Violation of a statute constitutes harmful negligence if a) the legislative intent was to protect individuals from the particular harm in question, b) the violation of the statute was the proximate cause for the injury, and c) the act of the thief was not an intervening, independent, efficient force which broke the causal connection between the original wrong and the injury.
- Perry v. S.N. and S.N. (1998)
o Negligence per se cannot be applied to violations of statutes that require reporting of the criminal acts of a third party. There is no legal duty in common law that penalizes for failing to come to the aid of another in distress.
(B) Effect of Statute
- Martin v. Herzong (1920
o Facts
* Plaintiff and husband driving, struck by D’s automobile
* Negligence is charged right of center of the highway
* Negligence charged against P, in that he was traveling without lights
* Lights are intended for the guidance and protection of other travelers on the highway
* Admitted violation of a statute intended for the protection of travelers on the highway
o Rule
* A D who travels without lights is not to pay damages for his fault, unless the absence of lights is the cause of the disaster
o Application
* Evidence of a collision occurring more than an hour after sundown between a car and an unseen buggy, proceeding without lights, is evidence from which a causal connection may be inferred between the collision and the lack of signals
- Zeni v. Anderson (1976)
o Facts
* P traveled along well-used pedestrian snowpath, with her back to oncoming traffic
* D driving within the speed limit in a steady stream of traffic
* D’s windshield was clouded
* D’s car struck the P on the driver’s right side
* It was common for nurses to use the roadway to reach the Health Center
* D maintained that failure to use the sidewalk constituted contributory negligence because it violated… statute
o Rule
* Role of a penal statute in a civil action for damages is that violating the statute establishes only a prima facie case of negligence.
* If there is sufficient excuse or justification there is ordinarily no violation of a statute and the statutory standard is inapplicable
o Application
* The statute itself provides a guideline for when it is impractical to use the sidewalk
* Adequate jury instruction…
7. Proof of Negligence
(A) Court and Jury: Circumstantial Evidence
- Goddard v. Boston & Maine R.R. Co. (1901
o Facts
* Personal injuries received by falling on a banana
o Ruling
* Skin may have been dropped within a minute by one of the persons who was leaving the train. Not the fault of the station owners.
- Anjou v. Boston Elevated Railway Co. (1911)
o Facts
* P arrived on one of D’s cars
* Slipped on banana peel
* One of the duties of employees of the D was to observe and remove whatever was upon the platform to interfere with the safety of travelers
o Rule
* Obligation rested upon the D to keep the station reasonably safe for passengers
o Application
* Appearance and condition of the banana peel that it had been upon the platform for a considerable period of time that would have been removed if they had been reasonably careful
o Ruling
* For the P
- Joye v. Great Atlantic and Pacific Tea Co. (1968)
o Facts
* P slipped and fell on banana in D’s supermarket
o Rule
* Needs sufficient evidence to present a jury issue as to constructive notice to defendant of a dangerous condition
o Application
* Was pure speculative, reversed in favor of the D because no evidence could be found of their negligence or lackthereof
- Ortega v. Kmart corp. (2001)
o Facts
* P slipped on puddle of milk at D’s store
* Could not present evidence as to how long the milk had been on the floor, but P claimed that because evidence showed D had not inspected the area in a while prior, they were negligent
o Rule
* Owner has a duty to exercise reasonable care in keeping the premises reasonably safe
o Analysis
* The exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed to safeguard against the possibility that such a customer may create a dangerous condition by disarranging the merchandise and creating a potentially hazardous condition
* Not need to show actual knowledge of possible dangerous condition where evidence suggests constructive knowledge of its existence
* Still has burden of producing evidence to show that the dangerous condition existed to constitute constructive notice
o Ruling
* Remains a question of fact for the jury if the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care
- Jasko v. F.W. Woolworth Co. (1972)
o Facts
* P slipped on piece of pizza in front of a pizza counter in D’s store
* Dangerous condition created by the store’s method of sale
* Steps taken to constantly clean the floor show that the store owner recognized the danger
* Selling on waxed paper created reasonable probability that food will drop onto the floor. Food on a terrazzo floor will create a dangerous condition.
o Rule
* When the operating methods of a proprietor are such that dangerous conditions are continuous or easily foreseeable, the logical basis for the notice requirement dissolves.
- H.E. Butt Groc. Co. v. Resendez (1999)
o Facts
* D slip and fall near D’s grape displays
* Sued P for negligence
o Rule
* Must prove 1) actual or constructive knowledge of a condition on the premises, 2) the condition posed an unreasonable risk of harm, 3) P did not exercise reasonable care to reduce or eliminate the risk, and 4) failure to use such care proximately caused her injuries
o Application
* Evidence that the display created an unreasonable risk of customers falling
(B) Res Ipsa Loquitur
- Byrne v. Boadle (1863)
o Facts
* P walking in a public street past the defendant’s shop
* Barrel of flour fell upon him from a window above the shop
* No evidence to connect the defendant or his servants with the occurrence
o Rule
* Res ipsa loquitur, mere fact of the accident having occurred is evidence of negligence, the rule must be absolute to enter the verdict for the P
o Application
* I think it apparent that the barrel was in the custody of the defendant, who is reasonable for the acts of his servants who had control of it, its falling is prima facie evidence of negligence.
- McDougald v. Perry (1998)
o Facts
* Traffic accident, personal injuries sustained
* As D drove over rr tracks, the 130-pound spare tire came out of its cradle underneath and fell to the ground, bounced into the air and collided with the windshield of P’s Jeep
* Judge instructed jury on the doctrine of res ipsa loquitur
o Issue
* Application of res ipsa loquitur to the circumstances of a wayward automobile wheel accident
o Rule
* Where direct proof of negligence is wanting, elements consistent with negligent behavior are present. P must establish that the instrumentality causing his or her injury was under the exclusive control of the D. that the accident is one that would not have occurred without negligence on the part of the one in control
o Ruling
* We conclude that the spare tire escaping is the type of accident which would not occur but for the failure to exercise reasonable care by the person who had control of the spare tire
o Analysis
* P is not required to eliminate with all certainty all other possible causes or inferences. All that is required is what reasonable persons can say that on the whole it is more likely that there was negligence associated with the cause of the event than that there was not
- Larson v. St. Francis Hotel (1948)
o Facts
* P walking on sidewalk adjoining D’s hotel
* Struck on the head by a heavy, over-stuffed arm chair
* No one appears to have seen from whence the chair came
* It is a reasonable inference that the chair came from some portion of the hotel
o Rule
* Must prove 1) there was an accident, 2) that the thing or instrumentality which caused the accident was at the time of and prior thereto under the exclusive control and management of the defendant, 3) that the accident was such that the ordinary curse of events, the D using ordinary care, the accident would not have happened.
* The rule of exclusive control is not limited to actual physical control, but applies to the right of control of the instrumentality which causes the injury
o Application
* A hotel does not have exclusive control of its furniture. Could not have prevented… not res ipsa loquitor
- Ybarra v. Spangard (1944)
o Facts
* P consulted D, diagnosed with appendicitis
* Had appendectomy performed by D
* Prior to operation, had never had any pain in right arm and shoulder, but had pain when awakened
* P believes based on res ipsa loquitur, D is guilty
o Application
* P was unconscious, manifestly unreasonable for them to insist that the identify one or any of them as the person who did the negligent act
o Ruling
* We merely hold that where a P receives unusual injuries while unconscious and in the course of medical treatment, all those Ds who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explanation of their conduct
- Sullivan v. Crabtree (1953)
o Facts
* P adult son, killed while a guest in a motor truck which swerved off the highway and overturned down a steep embankment. Suit brought against both the owner and the driver of the truck
* D testified that there was some loose gravel on the road, pavement was broken a little
* He lost control of the truck
o Issue
* Duty of care owing by D
o Rule
* Does not generally apply to motor vehicle accidents but it may apply to such an accident where the circumstances causing it were within the driver’s control and the accident was such as does not usually occur without negligence
o Application
* Cause of the death used for was D’s loss of control of the truck. May have been due to his own negligence, or it may have been due to no fault of his
* It was for the jury to choose the inference they thought most probable
V. Causation in Fact
1. Sine Qua Non
- Perkins v. Texas and New Orleans R. Co. (1963)
o Negligence is not actionable unless it is a cause in fact of the harm for which recovery is sought
2. Proof of Causation
- Reynolds v. Texas & Pac. Ry. Co. (1885)
o Where the negligence of the defendant greatly multiplies the chances of accident or injury to the plaintiff, and its of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence is not sufficient to break the chain of cause and effect between negligence and injury.
- Gentry v. Douglas Hereford Ranch, Inc. (1998)
o Negligence action requires proof of 1) existence of a duty, 2) breach of the duty, 3) causation, and 4) damages
- Kramer Services, Inc. v. Wilkins (1939)
o Injury must be caused by negligence, needs more than just that the injury and the negligence coexisted.
- Herskovits v. Group Health Cooperative of Puget Sound (1983)
o Causing a reduction of the opportunity to recover (loss of chance) by one’s negligence does not necessitate recovery for all damages caused by victims death. Damages should be awarded based on damages caused directly by premature death, such as lost earnings and additional medical expenses, etc.
- Daubert v. Merrell Dow Pharmaceuticals, Inc. (1995)
o Expert testimony must fall be relevant and within accepted standards for how scientists conduct their research and reach their conclusions – may not rest exclusively on the reputation or testimony of the expert alone.
3. Concurrent Causes
- Hill v. Edmonds
o Where separate acts of negligence combine to produce directly a single injury, each tortfeasor is responsible for the entire result, even though his act alone might not have caused it.
- Anderson v. Minneapolis, St. P. & S. St. M. Ry. Co. (1920)
o Joint and several liability if unknown origin of what caused damages, if it was, for example, two fires, one of unknown origin and one of known origin.
4. Problems in Determining Which Party Caused the Harm
- Summers v. Tice (1948)
o If two are negligent and unknown who caused the injury – both of those so firing are liable for the injury suffered by the third person, although the negligence of only one of them that could have caused the injury. Where the matter of apportionment is incapable of proof, the innocent wronged party should not be deprived of his right to redress. The wrongdoers should be left to work out between themselves any apportionment
- Sindell v. Abbott Laboratories (1980)
o Each defendant will be held liable for the proportion of the judgment represented by its share of that market unless it demonstrates that it could not have made the product which caused the plaintiff’s injuries.
VI. Proximate or Legal Cause
- Atlantic Coast Line R. Co. v. Daniels (1911)
o Courts do not attempt to deal with cause and effect in absolute degree, but only in such a limited way as is practical and is within the scope of ordinary human understanding.
1. Unforeseeable Consequences
- Ryan v. New York Central R.R. Co. (1866)
o Every person is liable for the consequences of his own acts. Thus liable in damages for the proximate results of his own acts, but not for remote damages.
- Bartolone v. Jeckovich (1984)
o A defendant must take a plaintiff as he finds him and hence may be held liable in damages for aggravation of a pre-existing illness. Nor may defendants avail themselves of the argument that plaintiff should be denied recovery because his condition might have occurred even without the accident.
- In re Arbitration Between Polemis and Furness, Withy & Co., Ltd. (1921)
o If the act would or might probably cause damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes having no connection with the negligent act, except that they could not avoid its results.
- Overseas Tankship (U.K.) Ltd. V. Morts Dock & Engineering Co., Ltd. “Wagon Mound No. 1” (1961)
o Not fair for an act of negligence, which results in some trivial foreseeable damage, the actor should be liable for all consequences however unforeseeable and grave, so long as they can be said to be “direct.”
o Is the standard by which what a reasonable man would have foreseen
- Overseas Tankship (U.K.) Ltd. V. Miller Steamship Co. “Wagon Mound No. 2” (1966)
o It does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such a small magnitude. A reasonable man would only neglect such a risk if he had some valid reason for doing so.
- Palsgraf v. Long Island R.R. Co. (1928)
o If no hazard was apparent to the eye of the ordinary vigilance, an act innocent and harmless, at least outwardly appearing so, with reference to her, did not take itself to the quality of a tort because it happened to be a wrong, though apparently not one involving the risk of bodily insecurity, with reference to some one else.
- Yun v. Ford Motor Co. (1994)
o Proximate cause has been described as a standard for limiting liability for the consequences of an act based “upon mixed considerations of logic, common sense, justice, policy and precedent.” Proximate cause “must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability.”
2. Intervening Causes
- Derdiarian v. Felix Contracting Corp. (1980)
o Where the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, liability turns upon whether the intervening act is a normal or forseeable consequence of the situation created by the defendant’s negligence.
o If the intervening act is extraordinary, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus.
- Watson v. Kentucky & Indiana Bridge & R.R. Co. (1910)
o The mere fact that the concurrent cause or intervening act was unforeseen will not relieve the defendant guilty of the primary negligence from liability, but if the intervening agency is something so unexpected or extraordinary as that he could not or ought not to have anticipated it, he will not be liable, and certainly he is not bound to anticipate the criminal acts of others by which damage is inflicted and hence is not liable therefor.
- Fuller v. Preis (1974)
o Act of suicide is not a superseding cause in negligence law precluding liability. An intentional tort-feasor may be liable for the wrongful acts of a third party if foreseeable
o There is neither public policy nor precedent barring recovery for suicide of a tortuously injured person driven ‘insane’ by the consequence of the tortious act.
- McCoy v. American Suzuki Motor Corp. (1998)
o The Rescue Doctrine – Allows an injured rescuer to sue the party which caused the danger requiring the rescue in the first place. Rescuer must show the defendant proximately caused the injury. Proximate cause determined by if it is foreseeable that the intervening cause is sufficiently close to be decided by a jury, and not the court.
3. Public Policy
- Kelly v. Gwinnell (1984)
o Negligence is tested by whether the reasonably prudent person at the time and place should recognize and foresee an unreasonable risk or likelihood of harm or danger to others. When negligent conduct creates such a risk, setting off foreseeable consequences that lead to plaintiff’s injury, the conduct is deemed the proximate cause of the injury.
o A court determines that a duty exists and liability will be extended, it draws judicial lines based on fairness and policy.
- Enright v. Eli Lilly & Co. (1991)
o A DES plaintiff generally finds it impossible to identify the manufacturer of the drug that caused her injuries. We held that liability could be imposed on DES manufacturers in accordance with their share of the national DES market, notwithstanding the plaintiff’s inability to identify the manufacturer particularly at fault for her injuries.
X. Damages
1. Personal Injuries
- Anderson v. Sears, Roebuck & Co. (1974)
o Remittitur purpose is the maximum recovery rule - The rule directs the trial judge to determine whether the verdict of the jury exceeds the maximum amount which the jury could reasonably find and if it does, the trial judge may then reduce the verdict to the highest amount that the jury could properly have awarded.
o Five cardinal elements of damages: past physical and mental pain; future physical and mental pain; future medical expenses; loss of earning capacity and permanent disability and disfigurement.
- Richardson v. Chapman ((1997)
o Trier of fact enjoys a certain degree of leeway in awarding compensation for medical costs that, as shown by the evidence, are likely to arise in the future but are not specifically itemized in the testimony
o Upper maximum amounts must be respected by the jury, however, as shown by the evidence and testimony of the experts
- Montgomery Ward & Co., Inc. v. Anderson (1998)
o A trial court must exclude evidence of payments received by an injured party from sources collateral to the wrongdoer, such as private insurance or government benefits
o Recoveries from collateral sources do not redound to the benefit of a tortfeasor, even though double recovery for the same damage by the injured party may result.
- Zimmerman v. Ausland (1973)
o The plaintiff in a personal injury case cannot claim damages for what would otherwise be a permanent injury if the permanency of the injury could have been avoided by submitting to treatment by a physician, including possible surgery, when a reasonable person would do so under the same circumstances.
Chapter 10: Damages (Handout)
- Introduction: Categories of Damages
o Nominal Damages: a token amount to vindicate a specific legal interest; available in actions for battery, assault, false imprisonment, trespass to land
o Compensatory Damages: actual damages caused by D’s wrongful act or omission; actual damage is an element in negligence actions and in all other tort actions except a few intentional torts for which nominal damages suffice.
* Traditionally, courts have divided compensatory damages into (1) economic or special damages, and (2) non-economic or general damages.
o Punitive Damages: not compensation; exist to punish tortfeasors who engage in aggravated misconduct
- Personal Injuries
o Economic Damages
* Medical Expenses
* P entitled to recovery of reasonable medical expenses, both past and future. Expert testimony generally required to prove the need for and the reasonable cost of future medical expenses
* Lost wages/income
* P entitled to recover of past and future lost wages. Expert testimony generally necessary to prove what P would have earned in the future. Young children not yet in work force and persons temporarily unemployed may recover for loss of future wages.
* Computation
* Present value: Damages awarded as a lump sum in most personal injury cases. Generally future losses must be reduced to “present value,” i.e. the amount that will generate the amount needed for a future expense
* Inflation: Generally, present value lump sum must be adjusted for inflation, but courts disagree on the preferred method of computing future inflation.
* Taxation: P’s compensatory damage award for personal injuries is not subject to federal income tax. Most courts do not consider tax exempt status in determining future losses and do not inform jury of tax exempt status. However, punitive damages are not exempt from income tax.
* Interest: Generally, tort damages are unliquidated and no interest is allowed until a judgment is entered or a verdict is rendered. However, some state statutes allow interest from the date of injury, from the date of action filing, or from the date on which the expense was actually incurred.
o Non-Economic Damages: Physical Pain and Suffering
* Damages Recoverable
* P may recover for suffering prior to trial and for future suffering reasonably certain to result from injury. Amount not capable of precise determination; no fixed standard for measurement; issue generally left to jury.
* Includes mental anguish caused by physical injuries, e.g. recovery for mental anguish caused by permanent incontinence, impotency, scars and disfigurement, and loss of sense of smell or taste, but generally not for litigation-induced stress.
* Computation of Damages
* Per Diem: Courts split on whether P’s attorney can make a ‘per diem’ argument for pain and suffering
* Present Value: Courts divided on whether award for future pain and suffering is to be reduced to present value: (1) not reduced because no market value; (2) reduced because a rough approximation is better than nothing; (3) leave it to the jury.
* Criticism: recovery of pain and suffering is excessive; should be limited to physiological pain and suffering. But pain and suffering is way to cover attorney’s fees, which are generally not recoverable in the US in the absence of a statute.
* Traditional American rule that damages are not awarded for reduced life expectancy itself (as opposed to loss of future income).
o Judicial Control of Amount of Recovery.
* Standard: An award is excessive or inadequate if the amount of the verdict demonstrates that jury acted ‘contrary to law out of prejudice or passion’ or if ‘shocking to the judicial conscience.’ Excessive if verdict ‘exceeds the maximum amount a reasonable jury could find.’
* Remedies
* Set aside verdict and grant new trial on both liability and damages or just damages if court convinced that finding of liability not tainted.
* Remittitur and Additur: a court may condition a grant of a new trial on whether P will accept a lesser amount (remittitur) on whether D will pay a greater amount (Additur). Additur used by fewer courts and raises constitutional isseus.
o Legislative Control of Amount of Recovery
* Damage Caps: A slight majority of states have put some statutory limits on the amount recoverable damages.
* Some caps are only on particular types of actions, such as medical malpractice or torts. Other caps are on non-economic damages in all actions.
* Caps have generated much constitutional litigation. All tort actions held constitutional, and caps.
* Calculation: Various issues as (1) whether to inform jury, (2) application to multiple causes of action arising out of same incident, and (3) application of comparative fault to damage cap.
* Query: whether it would be preferable to caluculate intangible damages according to a fixed schedule based on factors such as the type of injury and the age/life expectancy of P
o Other Items of Damage
* The Collateral Source Rule: P may recover damages from D even though P has received compensation for those damages from a source collateral to D, such as from P’s medical insurance, life insurance, disability insurance, employee benefits, etc.
* Rule lets P recover reasonable value of services provided gratuitously, such as nursing services provided without charge by relative
* However, the rule does not apply to payments made by D, by a joint tortfeasor, by one who mistakenly believes he is a joint tortfeasor, or by D’s insurance company.
* Collateral source rule does not necessarily result in a double recovery because many insurance contracts provide for a right of subrogation and many government programs require reimbursement if P recovers from D by a judgment or settlement.
* Tort Reform: As part of the tort reform movement, many states have modified the collateral source rule by statute.
* Loss of Consortium: Most states recognize a claim by the spouse of an injured person for loss of conjugal relations, society, companionship, household services, etc. The claim is considered derivative and must usually be brought as a part of the injured person’s claim.
* Expense of Litigation: English and civil law rule that winning party pays the losing party’s litigation expenses, including attorney’s fees. US rule is that certain costs are recoverable by the winning party, but not attorney’s fees unless provided for by statute.
* The Contingency Fee: In lieu of hourly or other fee, the lawyer collects a percent of the recovery, usually 30% to 40%. The lawyer gets nothing unless P wins the case. The contingency fee is frequently criticized, but it does allow low-income clients access to the legal system.
* Some federal and state statutes limit the amount of the contingency fee if the case is tried, settled, under the Federal tort claims act.
* Hourly fee: By contrast, most defense lawyers are paid on an hourly fee basis, but concern about some lawyers running up unnecessary hours.
* Champerty and Maintenance. Champerty: an agreement by a person with no interest in the lawsuit to aid in its litigation in exchange for a share of the proceeds. Maintenance is meddling with a lawsuit by providing a party with the means to carry it on. Both were illegal at common law and have some modern applications.
* Structured Settlements and Period Payment of Judgments: Traditionally, damages awarded in lump sum after either judgment or settlement. Modern trend toward structured settlements with periodic payments, encouraged by tax free treatment of interest earned on principal. Some limited movement toward periodic payment of damages following a court judgment.
* Doctrine of Avoidable Consequences: an injured P may have an obligation to undertake reasonable measures in order to mitigate damages. Failure to do so results in an inability to recover damages for permanent or other aggravated injury that might have been prevented.
- Physical Harm to Property
o Damage to property is measured by the difference in value before and after the tortious conduct causing the damage. Generally, value is market value at the time and place of the tort.
- Punitive Damages
o Punitive or “Exemplary” Damages: An additional amount of damage over and above compensatory damages designed to punish, deter D, and deter others. Generally, D’s conduct must involve some ‘outrage’ or aggravated fault. Not appropriate when an intentional tort merely technical in nature or in negligence actions. A dispute whether punitive damages proper in strict liability or against D’s estate.
* An award of compensatory damages is a necessary precondition for an award of punitive damages, but some courts allow nominal compensatory damage or injunctive relief in leiu of compensatory damages
* Punitive damages are discretionary and jury never has to award them
* In calculating the amount of any punitive damages, the jury usually considers the character of the D’s act, the nature and extent of the harm to P, and D’s wealth. Evidence of D’s criminal punishment may be permitted in mitigation in some states
* Miscellaneous procedural safeguards: (a) allowing the jury to decide whether to award punitive damages and, if so, then have the judge decide the amount; (b) bifurcating the trial to keep evidence relevant only to punitive damages out of the liability phase of the trial; and (c) requiring clear and convincing evidence
o Vicarious liability: Courts are divided about whether an employer is vicariously liable for punitive damages for the torts of employees or agents.
o Availability of Insurance: Courts have divided on whether D’s liability insurance should cover an award of punitive damages. Cases focus on interpretation of language in insurance contract and public policy considerations.
o Constitutionality: historically, courts have refused to impose constitutional restrictions on punitive damages. However, recently the USSC did recognize some limited constitutional restrictions on punitive damages.
o Tort Reform: A number of states have imposed some statutory limitations on the manner of awarding punitive damages, on the amount of such awards, or on the amount of the award that P may retain.
XII: Defenses
1. Plaintiff’s Conduct
(A) Contributory Negligence
- Butterfield v. Forrester (1809)
o If a person can avoid injury and easily avoided it, with ordinary care, then they are not able to recover for damages
- Davies v. Mann (1842)
o If an individual may have avoided damage to property, there is a responsibility to do so, otherwise such negligent damages may cause liability, even if the property is where it is not supposed to be.
(B) Comparative Negligence
- McIntyre v. Balentine (1992)
o So long as a plaintiff’s negligence remains less than the defendant’s negligence, the plaintiff may recover; in such a case, plaintiff’s damages are to be reduced in proportion to the percentage of the total negligence attributable to the plaintiff.
(C) Assumption of Risk
- (1) Express
o Seigneur v. National Fitness Institute, Inc. (2000)
* Exculpatory clause is sufficient to insulate the party from his or her own negligence as long as its language clearly and specifically indicates the intent to release the defendant from liability for personal injury caused by the defendant’s negligence
* Unambiguous exculpatory clauses are generally held to be valid in the absence of legislation to the contrary
* Three exceptions:
o When the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence
o When the bargaining power of one party to the contract in so grossly unequal as to put that party at the mercy of the other party’s negligence
o When the transaction involves the public interest
* To process a decisive bargaining advantage over a customer, the service offered must usually be deemed essential in nature
- (2) Implied
o Rush v. Commercial Reality Co. (1929)
* Duty to maintain and contributory negligence are questions for the jury where there is some room for argument on both sides, and there are questions of fact to be determined based on evidence on both sides.
o Blackburn v. Dorta (1977)
* Contributory negligence no longer serves as a complete bar to plaintiff’s recovery but is to be considered in apportioning damages according to the principles of comparative negligence
* Assumption of risk is equivalent to contributory negligence, then it can no longer operate as a complete bar to recovery
2. Statutes of Limitations and Repose
- Teeters v. Currey (1974)
o The cause of action accrues and the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence for his own health and welfare, should have discovered the resulting injury
VII: Joint Tortfeasors
1. Liability and Joinder and Defendants
- Bierczynski v. Rogers
o Each participant is liable for harm to a third person arising from the tortious conduct of the other, because he has induced and encouraged the tort
- Coney v. J.L.G. Industries, Inc.
o Term “joint and several liability” means either of two persons whose concurrent negligence contributed to cause plaintiffs’ injury and damage may be held liable for the entire amount of the damage caused by them
2. Satisfaction and Release
- Bundt v. Embro
o One who has been injured by the joint wrong of several parties may recover his damages against either or all but there can be only one satisfaction
o No double recovery for a single injury
- Cox v. Pearl Investment Co.
o Manifest intent of the parties to a contract should always be given effect unless it be in violation of law or public policy
o Where a contract has the effect of releasing one joint tortfeasor but expressly reserves the right to sue others who may be liable for it, it should not in law be treated otherwise
- Elbaor v. Smith
o Settlements that skew the trial process, mislead the jury, promote unethical collusion among nominal adversaries and create the likelihood that a less culpable defendant will be hid with the full judgment
o Procedural and substantive damage Mary Carter agreements can inflict upon our adversarial system declare them void as violative of sound public policy
3. Contribution and Indemnity
- Knell v. Feltman
o A defendant may bring into action another person who may be liable to him for all or any part of the damages, even though the plaintiff does not seek a judgment against him.
- Yellow Cab Co. of D.C., Inc. v. Dreslin
o In the case of common obligation, an injured plaintiff in the suit from which a right of contribution develops must have had a cause of action against the party from whom contribution is sought.
- Slocum v. Donahue
o When a release is given in good faith to one of two or more persons liable in tort for the same injury, it shall discharge the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor.
o Contribution is allowed between joint tortfeasors who cause another, by reason of their wrongdoing, to incur injury or damage. Statute permits a plaintiff to settle with one joint tortfeasor and still have recourse against remaining tortfeasors.
4. Apportionment of Damages
- Bruckman v. Pena
o One injured by the negligence of another is entitled to recover the damages proximately caused by the act of the tortfeasor, and the burden of proof is upon the plaintiff to establish that the damages he seeks were proximately caused by the negligence of the defendant.
o Defendants cannot be held liable for Plaintiff’s subsequent injury and this is so whether or not such damage can be apportioned between the two injuries.
- Michie v. Great Lakes Steel Division, Nat’l Steel Corp.
o Where the negligence of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severly liable, although there was no common duty, design, or concert action.
- Dillon v. Twin State Gas and Electric Co.
o To constitute actionable negligence there must be damage, and damage is limited to those elements the statute prescribes (not for all damages that were received that may not have been due to the party’s negligence)
VIII: Duty of Care
2. Failure to Act
- Hegel v. Langsam
o No responsibility to prevent or supervise the actions of others unless that responsibility is specifically assumed by a party.
- L.S. Ayres & Co. v. Hicks
o No general duty to go to the rescue of a person in peril
o Failure to render assistance in such a situation may constitute actionable negligence if the injury is aggravated through a lack of due care (if you caused it, you gotta fix it)
- J.S. and M.S. v. R.T.H.
o Foreseeability of the risk of harm is the foundational element in the determination of whether a duty exists
* Is based on actual knowledge of the risk of injury, constructive knowledge, policy implications, scope of liability
- Tarasoff v. Regents of University of California
o As a general rule, one person owed no duty to control the conduct of another, nor to warn those endangered by such conduct
* Exception for when the defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of the conduct
4. Emotional Distress
- Daley v. LaCroix
o Recovery for mental disturbance without accompanying physical injury or physical consequences or any independent basis for tort liability has been generally denied unless the physical consequences of mental disturbance are immediate and apparent
- Thing v. La Chusa
o Foreseeability test for emotional distress
* If Plaintiff was located near the scene of the accident or away from it
* Whether the shock resulted from a direct emotional impact from seeing the accident directly, or learning about it from others
* If the plaintiff and victim were closely related, as contrasted with absence of any relationship or the presence of only a distant relationship
5. Unborn Children
- Endresz v. Friedberg
o A wrongful death action may not be maintained for the death of an unborn child
* Must be born before dying, legally
- Procanik by Procanik v. Cillo
o Infant plaintiff may recover as special damages the extraordinary medical expenses attributable to his affliction, but that he may not recover general damages for emotional distress or for an impaired childhood
IX: Owners and Occupiers of Land
1. Outside the Premises
- Taylor v. Olsen
o The question of landowner’s or possessor’s attention to the condition of his roadside trees under a general standard of ‘reasonable care to prevent an unreasonable risk of harm’ is to be decided as a question of fact upon the circumstances of the individual case.
o Practical difficulty of continuously examining each tree in the untold number of acres of forests…
- Salevan v. Wilmington Park, Inc.
o The public has a right to the free and unmolested use of the public highways and that abutting landowners may not so use their land as to interfere with the rights of persons lawfully using the highways
2. On the Premises
(A) Trespassers
- Sheehan v. St. Paul & Duluth Ry. Co.
o If wantonly injured in the operation of the Railroad, the company is answerable in damages
o It is not bound to any act or service in anticipation of trespassers thereon; and that the trespasser who ventures to enter upon a track for any purpose of his own assumes all risks of the conditions which may be found there, including the operation of engines and cars
o Obligation arises at the moment of discovery, which is common to human conduct, to make all reasonable effort to avert injury to others from means which can be controlled.
(B) Licensees
- Barmore v. Elmore
o Duty towards invitee is greater than that owed by licensee
* A social guest as a licensee, must take the premises as he finds them, with a responsibility only to warn of hidden dangers of which he has actual knowledge that otherwise would be willful and wantonly injurious.
* Duty has responsibility of reasonable care to keep the premises reasonably safe for use by the invitee
(C) Invitees
- Campbell v. Weathers
o The public has a general invitation to become or be customers, and therefore are invitees
* Is an invitee regardless of a lack of intent to become a customer, if they visit the store
- Whelan v. Van Natta
o The possessor of land is subject to liability to another as an invitee only for harm sustained while he is on the land within the scope of his invitation. Invitee ceases to be an invitee after the expiration of a reasonable time within which to accomplish the purpose for which he is invited to enter, or to remain.
(D) Persons Outside the Established Categories
- Children
o Attractive Nuisance Doctrine
* Duty owed to child trespassers or licensees
* Place where the condition exists is likely to know that children are likely to trespass
* The condition is one of which the possessor knows or has reason to know which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children
* Children don’t discover the risk or realize it by coming within the dangerous area
* Utility to maintain the dangerous condition and burden of eliminating it are slight compared to the risk involved
* Possessor fails to exercise reasonable care to eliminate the danger and protect the children
- Persons Privileged to Enter Irrespective of Landowner’s Consent
o Five different answers given to the question of how public officials are to be treated
* Classified as licensees
* Classified as invitees
* Held as entitled to the duty owed to licensees or invitees depending upon the highest duty which the landowner already owed to some other person at that place and time
* Given a separate classification
* Held entitled to reasonable care under all the circumstances
(E) Rejection or Merging of Categories
- Rowland v. Christian
o Reject the rigid common law classifications and to approach the issue of the duty of the occupier on the basis of ordinary principles of negligence
XI: Wrongful Death and Survival
1. Wrongful Death
- Moragne v. States Marine Lines, Inc.
o Wrongful death claim is legit, although not always recognized as such.
- Selders v. Armentrout
o Damages involved in wrongful death cases are primarily dealing with a fictitious or speculative future life, as it might have been had the wrongful death not occurred. All evidence of future damage is necessarily speculative to a degree.
o Contributions reasonably expected from a minor, not only during minority but afterwards may be allowed on evidence justifying a reasonable expectation of pecuniary benefit.
o Law allows recovery for the loss of the society, comfort, companionship of a spouse, and that extends to children or the death of a child as well
2. Survival
- Murphy v. Martin Oil Co.
o Wrongful death action - Whenever the death of a person shall be caused by wrongful act, entitled the party injured to maintain an action to recover damages in respect thereof, and shall be liable for damages
o Survival action – damages for pain and mental suffering
o Can’t generally have both, but if someone has pain for a few days and then dies from a tortuous act, then they may recover for both, but not for the same period of time.
Chapter 11: Wrongful Death and Survival (Handout)
- Early Common Law
o Tort actions didn’t survive the death of either party
o Family members of a person killed by a D’s tortuous conduct did not have any action against D for their personal losses resulting from death
o Modern response: the enactment of survival statutes and wrongful death statutes
- Survival Statutes
o Statutes provide that certain designated actions survive the death of a party. Most of these statutes designate personal injury actions as surviving.
o Action is usually brought by executor or administrator of the deceased’s estate, and recovery passes to the estate
o Most modern cases allow both survival and wrongful death actions when the death is caused by D’s tortious conduct. The concern is to avoid any double recovery for damages that may overlap the two claims. In such cases, pain and suffering is usually allocated to the survival action and funeral and burial expenses are allocated to the wrongful death action.
- Wrongful Death Statutes
o Statutes provide that certain designated beneficiaries of the deceased have cause of action based on the loss caused to them by the death.
o Beneficiaries
* Spouses, children, parents
o Damages may include (1) loss of on-going financial support; (2) loss of services; (3) loss of society and companionship; and (4) funeral expenses.
* Early statutes limited damages to pecuniary loss, but modern statutes and cases allow recovery for loss of society and companionship
* Parent’s action for death of minor child: loss of society and companionship allowed
* Child’s action for death of parent: loss of education, training and nurturing is viewed as having economic value to child.
* Many statutes have caps on total damages or on the non-economic damages.
o Miscellaneous
* Courts divided on whether discovery rule applies to wrongful death actions
* Courts divided on whether a spouse’s remarriage is admissible in evidence.
- Defenses
o Defenses based on Decedent’s Conduct
* Survival statutes merely continue decedent’s own action, and thus they allow any defense that would have been a defense had decedent lived, such as contributory negligence, assumption of risk, etc.
* In wrongful death statutes, an heir’s claim is derivative and thus subject to any defense that would have been had decedent lived
* But courts are divided when defense based on family immunity because death ends the reason for immunity
* Courts are divided when decedent settled the claim prior to death
o Defenses based on Conduct of the Beneficiaries
* Because survival action s merely continue decedent’s own action, the negligence of a beneficiary is not a defense
* Courts divided in wrongful death actions
* Some use same approach used in survival actions, such as beneficiary’s negligence is not a defense, especially when the plaintiff is the ‘estate’
* Other courts treat contributory negligence, assumption of risk, et.c as a sole beneficiary or of all beneficiaries as a defense
* When one or more, but not all beneficiaries are contributoraly negligent or assume the risk, most courts bar only the culpable beneficiary
o Comparative negligence
* In a wrongful death action the decedent’s percentage of fault is imputed to the plaintiff
* In a wrongful death action, when both decedent and the beneficiary are at fault, aggregate their fault for purposes of modified comparative negligence statute.
o Statute of limitations
* Some wrongful death statutes have their own statute of limitations, while others fall under a general statute of limitations for negligence or tort actions
* Statute of limitations sometimes more strictly construed because wrongful death a statutory action not known at common law. Thus, tolling provisions or discovery rule might not apply
* Except in limited situations, the discovery rule does not apply simply because the fact of death is sufficient discovery of a possible cause of action
XIII: Imputed Negligence/Fault/Vicarious Liability
1. Respondeat Superior
- Bussard v. Minimed, Inc.
o Doctrine of respondeat superior – an employer is ordinarily liable for the injuries its employees cause others in the course of their work. Imposes liability whether or not the employer was itself negligent, and whether or not the employer had control of the employee.
o Doctrine’s application requires that employee be acting within the course of employment, which is defined expansively
o Does not include the employee’s daily commute
* BUT it allows for exceptions such as when the risk arises from or is related to work
- O’Shea v. Welch
o Pursuant to Kansas law, an employer is only liable for injuries caused by an employee acting within the scope of the employment
* Test is if such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it
2. Independent Contractors
- Murrell v. Goertz
o An independent contractor is one who engaged to perform a certain service for another according to his own methods and manner, free from control and direction of his employer in all matters connected with the performance of the service except as to the result thereof
- Maloney v. Rath
o A nondelegatable duty operates to assure that when a negligently caused harm occurs, the injured party will be compensated by the person whose activity caused the harm and who may therefore properly be held liable for the negligence of his agent, whether his agent was an employee or an independent contractor.
3. Joint Enterprise
- Popejoy v. Steinle
o The burden of establishing the existence of a joint venture relationship is upon the party asserting the relationship exists.
o Cases and authorities emphasized the commercial and profit motive aspects of the community of pecuniary interest element of a joint enterprise or joint venture relationship
4. Bailments
- Malchose v. Kalfell
o Family car doctrine places liability on the owner of a vehicle for negligent operation by a person using the vehicle with the express or implied consent of the owner for purposes of the business or pleasure of the owner’s family. Owner is liable for tortuous acts of the driver.
5. Imputed Contributory Negligence
- Smalich v. Westfall
o A plaintiff ought not be barred from recovery against a negligent defendant by the contributory negligence of a third person unless the relationship between the plaintiff and the third person is such that the plaintiff would be vicariously liable as a defendant for the negligent acts of the third person
Chapter 13: Imputed Fault (Handout)
- Introduction
o Vicarious liability refers broadly to a judicial or legislative determination that a certain relationship between two parties justifies imputing the negligence of one party to the relationship to the other party to the relationship.
o Vicarious liability is the generic reference, whereas respondeat superior refers generally to the doctrine that the employer is vicariously liable for an employee’s negligence while acting in the scope of his employment.
- Respondeat Superior: The employer-employee relationship
o General Rule
* Under RS an employer is liable for the negligence of an employee committed acting in the scope of his employment
* Distinguish situations where the employer is liable based on its own negligence in some aspect of hiring, training, or supervising the employee
o Rationale for RS
* Control Rationale: The employer is liable whenever the employee’s act was committed with the implied authority, acquiescence or subsequent ratification of the employer
* Enterprise rationale: an employer is liable whenever the employer’s enterprise would have benefitted from the employee’s act but for the unfortunate fact of injury.
* Compensation Rationale: Damages are to be paid by the “deep pocket”
o Scope of Employment Limitation
* Acts of the employee must be so connected to his employment as to justify imposing the cost of the injury on the employer. This may depend on all the facts of the case, and no rigid rule governs when an employee is in the scope of employment.
* Generally, commuting to and from work is not in the scope of employment, but some exceptions may exist. Thus, the salesman using his own car in his work is in the scope of employment while driving home from his last appointment.
* However, employees may not insulate themselves from RS by imposing safety rules or instructing employees to be careful
o Intentional Torts
* An employer may be vicariously liable for an employee’s intentional tort when they are reasonably connected with the employment and thus are within the scope of employment
o Punitive damages
* Generally, punitive damages are not imputed to the employer unless (1) he authorized or ratified the employee’s acts (2) he was reckless in employing or retaining the employee (3) the employee was employed in a managerial capacity and was acting in the scope of his employment.
- Independent Contractors
o Definition
* An independent contractor is one engaged to perform a certain service for another according to his own methods and manner, without control and the direction of the employer with respect to all matters connected with the performance of the service other than the end result
o Legal Effect
* The employer of an independent contractor is not vicariously liable for harms caused by the negligent acts of the independent contractor
o Rationale
* The independent contractor differs from an employee in that the contractor does the work during his own time, in his own way and under nobody’s direction, so that the employer has no right of control.
* The work is the contractor’s own enterprise, and the contractor, not the employer, should bear the risk of the enterprise.
* Independent contractors, as a class, are more financially responsible parties than employees
o Exceptions to the employer’s protection from vicarious liability
* Non-delegateable Duty
* The employer of an independent contractor will be vicariously liable when the independent contractor is hired to engage in an activity which, by reasons of public policy and the risk of serious bodily injury, is so important that the employer ought not be allowed to avoid it by hiring somebody else to discharge it
* A non-delegateable duty is not based on any obvious criterion, but rather is found to exist in a series of ad hoc decisions based on public policy considerations.
* Inherently or intrinsically dangerous activities
* The employer of an independent contractor may be vicariously liable for harms caused by the independent contractor who was hired to engage in an inherently or intrinsically dangerous activity
* The exception is not limited to activities involving extraordinary risk such as blasting, that would qualify as abnormally dangerous activity for the purposes of strict liability. It requires only an activity that involves a peculiar risk of harm that calls for more than ordinary precautions
* Illegal activities:
* An employer who contracts with an independent contractor for performance of an illegal act is vicariously liable for any damage caused by the illegal act
* Violation of Safety standards
* One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions
o Liability based on actual negligence of employer of an independent contractor
* Employer may be liable for its own negligence (1) in hiring an unqualified contractor, (2) in providing inadequate instructions, directions, or equipment, (3) in failing to stop any unreasonably dangerous practices that come to the employer’s attention
o Miscellaneous
* Indemnity
* The vicariously liable employer may obtain indemnity from either a negligent employee or a negligent contractor
* Apparent authority
* One who expressly or impliedly represents that another party is his servant or agent may be held vicariously liable for the latter’s negligence to the extent of that representation. This may apply even though the other is an independent contractor or even when there is no employment relationship at all between the parties
* The apparent authority doctrine has been used to hold franchisers vicariously liable for the negligent conduct of independent contractor franchisees or to hold hospitals vicariously liable for medical malpractice of independent physicians.
- Joint Enterprise
o Elements of joint enterprise, aka joint venture has these four elements
* An agreement, express or implied, among members of a group
* A Common purpose to be carried out by the group
* A community of interest in that purpose among the members
* An equal right to a voice in the direction of the enterprise, which gives a right of control.
o Legal Effect
* When a joint enterprise exists, each member of the group is vicariously liable for the negligent acts of the others within the scope of the enterprise or venture
o Commercial
* A joint enterprise is basically a commercial concept derived from the law of partnership and the principals of agency. Courts tend to transform the community of interest element into a community of pecuniary interest element in order to avoid extending enterprise to a noncommercial injury situations arising out of group activities by family or friends
- Bailments: Liability of owner of automobile
o General rule
* A bailment does not make the bailor vicariously liable for the acts of the bile in the use of the chattel
* However, judicial and legislative decisions have altered the common law rule with respect to automobiles
o Presumption that Owner controls vehicle
* Some older cases held that the owener’s mere presence in the car established his right of control over the manner of driving, so that the owner becomes responsible for the acts of the driver fas if the driver were the owner’s agent
* States retreated from this rule because it would encourage ‘backseat driving’
* The owner’s duty to objet or interfere with negligent driving as soon as he becomes aware of it is actual negligence, not vicarious liability
o The family purpose or family car doctrine
* Doctrine is a legal fiction by which the owner of an auto is vicariously liable when the car is negligently driven by a member of the immediate household. Doctrine based on assumption that the car is being used for family purpose even if the driver is using the car only for his own pleasure or convenience
* Car must be driven with the consent of the owner, but consent may be inferred from very general circumstances.
o Automobile consent statutes:
* Many states have statutes making the owner of an automobile vicariously liable for injury caused by the negligent operation of the vehicle by one driving with the owner’s consent
o Insurance contracts
* The need for auto consent statutes is greatly lessened by the omnibus clause in standard insurance policies. The clause extends insurance coverage not only to the named insured, but also the insured household and to any person using the vehicle with the insured’s permission, provided the use was in the scope of the permission.
o Negligent Entrustment Distinguished
* Vicarious liability doctrines must be distinguished from cases in which the employer/owner/bailor was itself negligent in entrusting the chattel to one not competent to use it safely or reasonably
- Imputed Contributory Negligence
o Imputed Contributory Negligence
* The use of vicarious liability principals to impute the contributory negligence of one party to another party
* Many courts use the two war test that prohibits imputing contributory negligence to the owner as a plaintiff based on a relationship unless the negligence can also be imputed to the owner as a defendant based on the same relationship
* The doctrine of imputed contributory negligence is now largely discredited except in a few narrowly defined situations and in derivative claims
o Driver and Passenger
* The negligence of the driver is no longer imputed to the passenger
* A passenger may be negligent in failing to keep a reasonable lookout for danger, but the passenger is protected by reliance on the driver until circumstances put the passenger on notice to the contrary.
o Husband and Wife.
* At common law
XIV: Strict Liability
1. Animals
- Liability imposed on those who keep, possess or harbor animals
o Landowners are not responsible for harm done by wild animals on their property unless they reduce the wild animal to possession or control or introduce a non-indigenous animal into an area
o The owner of cattle is liable when animals trespassed upon the plaintiff’s land
o Dogs and cats were not included
* May not apply anymore
* Liability also is affected by statutory provisions requiring dogs to be muzzled or leashed
* A dog owner who displays an easily readable sign that says “bad dog” in a prominent area in his premises is not liable in strict liability to anyone who is at least 6 years old. (Florida)
2. Abnormally Dangerous Activities
- Rylands v. Fletcher
o A person who lawfully brings on his land something which, though harmless while it remains there, will naturally cause harm if it escapes, he must take care to keep in that which he has brought onto the land, otherwise has absolute liability for its harms.
* Later added natural and unnatural distinction, with the difference largely established on the basis of inherent danger of the thing on the land
- Miller v. Civil Constructors, Inc.
o Strict liability on owners and users of land for harm resulting from abnormally dangerous conditions and activities
* Abnormally dangerous =
* A) existence of a high degree of risk of harm
* B) likelihood that harm will result is great
* C) inability to eliminate risk
* D) extent to which the activity is commonplace
* E) appropriateness of the activity to where it is carried out
* F) extent to which the value of it is outweighed by the danger involved by it
3. Limitations on Strict Liability
- Foster v. Preston Mill Co.
o There is strict liability in blasting cases whether the damage is caused by trespassory or non-trespasory invasions
- Golden v. Amory
o The person who for his own purposes brings on his lands and collects and keeps there anything likely to cause harm if it escapes, must do so at his own peril
o Exception – does not apply to major acts of God releasing whatever it is from his land
- Sandy v. Bushey
o The owners or keepers of domestic animals are not answerable for an injury done by them in a place where they have a right to be, unless the animals in fact, and to the owners’ knowledge, are vicious.
* Exception if a person keeps a dangerous animal which he knows is accustomed to attack and injure mankind, he assumes the obligation of an insurer against injury by such animal
Outline #2 (File here in .pdf format, hosted on Dropbox)
The outline attached above is only in PDF format, so I'm afraid I can't easily make it searchable like most of the other outlines provided on this blog. Still, it should be useful to check against your own outline to make sure you haven't missed anything.
Intent
Was the harm intentional?
o Intent is determined by:
* Evaluation of a person’s state of mind, an act may have the purpose of causing an outcome, or there exists substantial certainty that such an outcome will occur. (Garrat v. Dailey)
- If clearly yes
o An individual may be liable for harms caused, including punitive.
- If clearly no
o May be liable for economic damages but not punitive (Ranson v. Kitner).
- Yes, but…
o The intent was from a crazyperson?
* Mental illness does not remove liability for tort (McGuire v. Almy)
o It was a child?
* Not a factor, may be used to evaluate capacity to connect action with outcome (Garrat v. Dailey)
- No, but…
o I did not intent to hit that guy. I meant to hit the other guy standing right next to him.
* Transfer of intent – still counts (Talmage v. Smith)
- I intended one harm and another happened (like battery to trespass to chattels)
o Transfer of intent may apply, but it is questionable
Battery
Was a contact battery?
o An actor is liable for battery if he acts intending to cause harmful or offensive contact, and harmful or offensive contact directly or indirectly results
* Intent
* Harmful or offensive
* Resulting contact
- Yes, but…
o I only touched the dude
* It’s still battery and you are liable (Cole v. Turner)
o I was trying to move a kid for its benefit
* That’s okay (Wallace v. Rosen)
- No, but…
o I broke a plate he was holding
* Close enough, it’s battery (Fisher v. Carrousel Motor Hotel, Inc.)
Assault
Was it assault?
o Assault is the apprehension that comes before an impending battery, which may or may not occur
- Yes, but…
o I couldn’t have actually reached her
* Still assault (Western Union Telegraph v. Hill)
False Imprisonment
Was it False imprisonment?
o A person held against their will without consent or cause
- Yes, but…
o It was an old person, and old people don’t have rights.
* That was wrong and you should pay (Big Town Nursing Home v. Newman)
o They were not conscious when they were held against their will
* It still counts (Parvi v. City of Kingston)
o They could have easily left if they wanted
* If there is no significant impediment to leaving, it’s not false imprisonment (Hardy v. LaBelle’s)
- No, but…
o The initial imprisonment was unjustified, but justification was found later for the imprisonment
* Is false imprisonment (Enright v. Groves)
o Consensual imprisonment that extended beyond the time agreed to
* Is false imprisonment (Wittaker v. Sandford)
Intentional Infliction of Emotional Distress
Did I hurt your feewings?
- Yes, intentionally
o Was it severe (extreme and outrageous)?
* Yes - Threats to a person’s well being, like threatening to beat them up is tortable (State Rubbish Collectors Ass’n v. Siliznoff)
* Did it cause severe distress?
o Yes
* May be liable
o No
* May not be liable unless actual new and significant harms come as a result of the behavior (Harris v. Jones)
* Sort of - Consequences more severe than reasonably considerable in the action may not be tortable, such as verbal insults causing a heart attack (Slocum v. Food Stores of Florida)
* No - Not IIED
- No - Not IIED if not aimed at the person who is distressed (Taylor v. Vallelunga)
Trespass to Land
Did you come on my land, you jerkface?
- Yes
o All unlawful entries onto land justify nominal damages, even if no damage to land (Dougerty v. Stepp)
- Yes, but I had permission
* Not tortuous
o But your stay on my land extended past the time you were given permission to stay
* Is tortuous (Rogers v. Board of Road Com’rs for Kent County)
- No, but - Even shooting over a person’s land constitutes trespass (Herrin v. Sutherland), as does something flying above or whatever (immediate reaches above the land)
Trespass to Chattels
Hey, that’s my stuff!
- I was injured while messing with your stuff. Can I still sue you?
o Yes (Glidden v. Szybiak)
- But the stuff was digital. Can I be sued?
o Yes (Compuserve v. Cyber Promotions)
- But I had to take your stuff, and I gave it back, and it wasn’t hurt. Can you still sue me?
o Nope (Zaslow v. Kroenert)
Conversion
You took my stuff. Do I have a claim to force sale?
- Was the property taken and used for the other’s own purposes?
o Yes (Pearson v. Dodd)
- Does good faith factor in?
o Depends! A buyer of a stolen item may have no title and be forced to return property, unless the thief obtained the item through fraudulent sale, then the thief may have title and your purchase would be legit.
- What if I give it back?
o Is it damaged or was the rightful owner barred from using it?
* No
* Then no conversion
* Yes
* Then may be conversion
Privileges
Is consent given or granted?
- No, but
o External consent + an internal denial of consent = consent given (O’Brian v. Cunard S.S. Co.)
o Medical exceptions are valid, as long as no consent is able to be given or it is an emergency
- Yes, but
o Consent to one medical procedure does NOT give consent to a different one (Mohr v. Williams)
o Was under false pretenses, it’s NOT CONSENT (De May v. Roberts)
May I hit this guy in defense of myself?
- Yes, if: Reasonable belief that you are going to be harmed, and force used is reasonable
- No, if: Retaliation is not cool, verbal insults don’t count, not if force is unreasonable, not if easily able to retreat
- Third party damaged while attempting to defend oneself?
o Transfer of intent/privilege: May be protected if it fits into the yes category from above
May I hit this guy who is about to hit this other guy?
- Yes, if: Reasonable belief that (x) is going to be harmed, and force used is reasonable
- No, if: Retaliation, verbal insults, force unreasonable, able to retreat
- Mistakes?
o Two interpretations of privilege of third party and mistakes
* Into the shoes of the third party, only privileged to defend if that other person is or would be
* Broader latitude interpretation, that its okay if the mistake is reasonable.
May I hit/detain/tickle/splatter this guy who is about to steal my stuff?
- May not use deadly force to defend property, as human life is more precious than stuff (Katko v. Briney)
May I hit/detain/tickle/splatter this guy to get my stuff back that he stole?
- Generally, that is not okay (Hodgeden v. Hubbard)
o BUT it may be okay if you are right there and can get your stuff back without the use of too much force
o Merchants have a special interest in detaining and asking about customers reasonably suspected of stealing merchandise (Bonkowski v. Arlan’s Dep’t Store)
If something is done, normally tortuous, but for a necessary and compelling reason, is it okay?
- Yes, if a reasonable amount of force used to protect society or the civil government (Surocco v. Geary)
o MAY still be liable for economic damages, but not punitive (Vincent v. Lake Erie Transp. Co)
Is it Justified?
- A general term for something normally tortuous done for a reason that may be privileged. (Sindle v. NY Transit)
Negligence
Negligence in General
- What is required for a claim of negligence?
o Duty: duty to use reasonable care
* Reasonable Care under all circumstances
* Leaving an object out is negligent only if object is “intrinsically dangerous”
* “Reasonable Prudent Person” Standard of foreseeability
o Should have known and had reason to know
o Emergency situations have a lesser burden for reasonable care
* Disabled person?
o Less burdens, but still reasonable prudent given capabilities
* Children?
o Held to adult standard if driving a vehicle or engaging in other adult behavior
* Professional?
o Higher burden to act considering their professional expectations, considering:
* Training or specialized knowledge
* Is best judgment exercised
* Reasonable and ordinary care and diligence
* Foreseeable that it will result in harm
* Sudden and unforeseeable incapacity is excusable
* Medical Malpractice context: Must have informed consent, or doc is negligent
o Informed consent = personal interest (financial, for example) that affect doctor’s professional judgment and all material information to the surgery.
* Foreseeable the severity of any harm that may ensue
* Burden of precautions of eliminating or reducing risk of harm
* Not all risks need be eliminated, just severe, special or substantial areas of risk as is practical
o Formula for the proper level of care?
* Burden VERSUS Resulting Damage + Probability of Damage
o Breach: Failure to conform to standard of reasonable care
* Reasonable standards are determined by the commonplace, not the extraordinary unique situation
* Acts of God do not constitute breach of reasonable care
o Causation: connection between breach and damages
* Refer to Causation In Fact section
o Damage: actual loss to another
- How Negligent Is An Act?
o Degrees of care
* Care required by reasonable person varies according to the risk of damages involved
* Ultra dangerous activity such as explosives require extra care
* Common carrier has extra care standard
o Degrees of negligence
* Slight negligence is a failure to use great care
* Ordinary is a failure to use reasonable care
* Gross negligence is a failure to exercise slight care
* Willful, wanton and reckless conduct is extreme recklessness bordering on intentional
* Deliberate and intentional disregard for a known high degree of harm to another
Laws and Statutory Negligence (Negligence Per Se)
- Someone violates a law. Is that proof of negligence?
o Violation of a statute does constitute negligence per se if:
* Plaintiff is in the class of people protected by the statute
* Plaintiff is harmed by the kind of harm intended to be prevented
* Causation between violation of statute and Plaintiff’s harm
Proof of Negligence
- How much proof do you need?
o Need to have sufficient circumstantial (or more) evidence to show that
* Actual or constructive knowledge of a condition on the premises
* The condition posed unreasonable risk of harm
* Plaintiff did not exercise reasonable care to reduce or eliminate the risk
* Failure to use such care proximately caused injuries
o Cannot be purely speculative
* Burden on the Plaintiff to show negligence, but evidence may be circumstantial
Res Ipsa Loquitur – Proof by Virtue of Accident’s Occurrence
- How do you prove something is negligent by virtue of it having happened?
o Must be certain that the only possible result of an accident was negligence and fault of a Defendant
o Must prove
* There was an accident
* The thing that caused it was under the exclusive control of the defendant
* The accident would not have happened if the Defendant did not use ordinary care
o Res Ipsa Loquitur is sort of stupid and not used by courts often, generally
Causation in Fact
Sine Qua Non
- Negligence must have caused an injury for which recovery is sought
o Is a “but for” test: injury would have not happened but for defendant’s negligence
Proof of Causation
- How do you prove a negligent act caused a harm?
o Where the negligent action of a defendant
* Multiplies chance of accident or injury to plaintiff
* It is of a character naturally leading to its occurrence
o Does not matter if it may have happened without the negligence present
* But the simultaneous existence of negligence and damage is not sufficient – must have some proof of causation
Concurrent Causes
- Where separate acts of negligence that combine to cause a single injury
o Each tortfeasor is responsible for the entire result
o So a plaintiff may recover all damages by a single known defendant when cause is concurrent between a known and unknown tortfeasor
Problems in Determining Which Party Caused the Harm
- If two are negligent but a single caused a harm, and it is unknown which one is responsible
o Still responsible, and damages may be apportioned between them
- Proportionment strategy for similar situations?
o May be liable for market share for the harms caused in, say, a products liability case for injuries of unknown origin
Proximate or Legal Cause
What is Proximate Cause?
- A limit on liability, where causation is limited to causes which are so closely connected with the result, and are of sufficient significance that the law is justified in imposing liability
Unforeseeable Consequences
- Only liable for consequences of proximate cause, or are foreseeable and not remotely consequential
o Intervening acts may prevent liability for damages caused by negligence
* Must have traceable chain of causation between negligence and damage
o Must be reasonably foreseeable
- Pre-existing condition?
o May still be liable for aggravating a pre-existing condition
- Unforeseen severity?
o But if what is a otherwise trivial foreseeable damages, may not be liable for damage greater than what is foreseeable
Intervening Causes
- Breaks in the chain of causation
o May or may not be liable, depending on if that intervening act is reasonably foreseeable depending on the situation as caused by the Defendant’s negligence
* If extraordinary, not liable. If ordinary, liable.
* Needs to be really extraordinary and unforeseeable, for reals
- Harms to a rescuer?
o Rescue Doctrine says that there are the same burdens of proximate cause, to be determined by jury, but may be liable for harms to a rescuer.
- Liable for someone’s suicide?
o Only if the cause of the severe mental anguish is clearly and directly caused by tortuous act
Public Policy
- Effect of public policy in negligence claims?
o May be consideration given to causal chain despite lack of foreseeable consequences if there is a substantial policy interest or an interest in fairness
* Such as long term consequences of drug/medication stuff that would normally be unforeseeable
Damages
- Elements damages calculation
o Past physical and mental pain
o Future physical and mental pain
o Future medical expenses
o Loss of earning capacity
o Permanent disability and disfigurement
o Loss of consortium, community
o Separately, may also include punitive damages not resulting from the harm
- How are they determined exactly?
o There is leeway in awarding compensation, as many elements are essentially speculative
* Judge may use remittitur or additur or retrial if the amount is not reasonable
o Damages may be capped by statute
- What if the injury was avoidable?
o May not recover for injuries that may have been avoided by seeking medical treatment after being injured
- What if Defendant gets insurance/other compensation for injury?
o May still recover
Defenses
Plaintiff’s Conduct
Contributory Negligence
- Plaintiff’s duties that may provide defenses to liability
o If Plaintiff could’ve easily avoided injury to person/property with ordinary care, they can’t recover
* Also with preventative measures for damages to property, or medical care after injured, defendant not liable for additional issues stemming from what would essentially be the plaintiff’s negligence
- Comparing negligence between Defendant and Plaintiff
o Percentage reductions depending on amount plaintiff was at fault
o Some courts may use a complete bar if any contributory negligence, others use comparative calculations
Assumption of Risk
- Contracts may explicitly say “I assume risk of injury for x thing” (Exculpatory Clause)
o Usually valid, but must be unambiguous/clearly written
* Exceptions to risk assumption clause:
* Party protected by the clause intentionally causes harm or engages in reckless, wonton or gross negligence
* Adhesion contract (unequal bargaining power for an essential service)
* Public interest/policy
- Implied Risk?
o May be discretionary if there is room for argument
Joint Tortfeasors
Liability and Joinder Defendants
- Groups of individuals who are liable for a tortable harm
o Each is liable for the conduct of the other because “he has induced and encouraged the tort”
* AKA joint and several liability, where any party may be responsible for the entire damage
* BUT there can only be one recovery/satisfaction
Settlements
- Generally they are acceptable
o Although, some agreements that skew the trial process are not
* Such as Mary Carter agreements, in which the Plaintiff pay one Defendant to rat out their others and then pays that Defendant off.
Contribution and Indemnity (It can be a kind of defense)
- Someone accuses you of something, you can blame someone else for it.
- What about if parties have a common obligation to do something and there is negligent fault
o Must have a cause of action against the party from whom contribution is sought to indemnify them
o When good faith release is given to one of the parties, it will discharge them of all liability for contribution to any other tortfeasor
* Also, contributory settlements, or whatever. Idk. This part is confusing.
- What if the plaintiff is injured, and then again years later?
o Original defendant only liable for the original damage, not subsequent injury unless proximately caused by the original’s tortuous act
- What if the injury comes from negligence of two or more parties creates a single indivisible inury?
o Jointly and severly liable, despite no common duty, design or action
Apportionment of Damages
- Multiple parties responsible for different percentage of damage?
o May apportion damages among those, but injury must be proved by plaintiff
* In order to be actionable, damage must be proved.
Duty of Care
Failure to Act
- Generally, there is no duty to prevent the actions of others, to protect others, or to act
o Exceptions
* You caused it, you gotta fix it
* If there is actual knowledge of a risk, policy implications, and is under the scope of liability
* If it is an assumed responsibility
* Invitee or guest
o (refer to owner/occupier of land section)
* If there is some special relationship to either the one who needs to be controlled or the foreseeable victim
Negligent Infliction of Emotional Distress
- What do you need to have for emotional distress claim?
o Must be injury
* Generally needs physical injury or consequence or an independent basis for tort liability, unless mental disturbance is immediate and apparent
o Must be foreseeable that action will cause emotional disturbance.
* Factors:
* Plaintiff was physically near the scene of the accident
* Plaintiff observed the accident occur
* Plaintiff was closely related to the victim
Unborn Children
- Wrongful death claims for unborn babies?
o Can’t make them, because they must be born before having died, legally
* However, Infant plaintiff may recover medical expenses attributable to affliction due to tort relating to harms as an unborn child (wrongful birth)
* But can’t recover for emotional distress or an unhappy childhood.
Owners and Occupiers of Land
Outside the Premises
- Does responsibility exist for a landowner outside of their own land?
o Must not obstruct the use of public or other’s land
* But there is some latitude for something such as a tree falling outside of one’s land, as it is an unreasonable expectation to monitor all of the land constantly. Depends on all the circumstance.
Inside the Premises
Trespassers
- Duty to trespassers?
o No, trespasser assumes risk generally. Obligation may exist if owner discovers trespasser to make all reasonable effort to avoid injury to trespasser.
Licensees
- A licensee is like a social guest
o Duty: licensee takes the premises as he finds them, with a responsibility only to warn of hidden dangers of which the owner has actual knowledge, or what would otherwise be willful and wantonly injurious, duty to keep premises reasonably safe.
Invitees
- Invitee is one invited, such as a customer
o Owner is subject to liability for harms, but
* Invitee must be within the scope of invite
* Does not need to be an actual customer, may just be a window shopper or bathroom user
Persons Outside Established Categories
- Children
o Attractive Nuisance Doctrine: Owner is liable if
* He Knows children are likely to trespass
* He Has reason to know a situation is dangerous or possibly harmful to children
* Children do not know of the risk, or aren’t able to appreciate it
* Great utility to maintain the dangerous condition and high comparative burden to eliminate it
* He Fails to eliminate risk to children and injury occurs
- Privileged persons
o Public officials, such as fire fighters, may be treated differently, but it depends on the court
* Held to reasonable care, classified as invitees, licensees, etc.
Rejection or Merging of Categories
- Some criticize the categories and claim that all owners should just be held to reasonable care standard
Wrongful Death and Survival
Wrongful Death
- Defined: Statutes which provide that certain beneficiaries have a cause of action based on the loss caused to them by the death
o Damages include:
* Loss of financial support
* Loss of services
* Loss of society and companionship
* Funeral expenses
Survival
- Defined: A claim can survives death of a plaintiff
Vicarious Liability
Respondeat Superior
- General Doctrine: employer is responsible for employee while employee is in the scope of their employment
o Scope of employment is broadly defined except,
* Commute, generally, unless the risk of accident arises from or is related to their job
Independent Contractors
- Different than employers in liability
o Independent, so employer not liable, except
* Non-delegateable duty such as it is so essential a responsibility, or is inherently dangerous
Joint Enterprise
- Must be economic in nature, for a common purpose, equal rights of control, community interest, agreement among members of the group
o Does not extend to family ventures
Bailments
- Family car doctrine
o Owner is liable for others
* Alternative, is that all drivers are under the owner, provided they have permission
Imputed Contributory Negligence
- Plaintiff can recover from employer, unless the employer/liable one is the plaintiff
o May be barred if they can’t sue themselves, for example
Strict Liability
Animals
- Liability for those who keep animals
o Not liable for wild animals
o May be liable for non-indigenous populations they introduce
o Pets and other animals not strictly liable
* Unless the animal is known to be vicious, or is inherently dangerous (tiger, pit bull, etc.)
Abnormally Dangerous Activities
- What is an abnormally dangerous activity
o High risk of harm
o Likelihood that the harm that will result is great
o Inability to eliminate risk
o Not a commonplace activity
o Appropriateness of the location
o Extent to which the value of it is outweighed by the danger involved in it
Limitations on Strict Liability
- Aren’t strictly liable if
o Act of got releases something from your land that you would normally be liable for
Textbook: Torts Casebook
Chapter 1: Development of Liability Based Upon Fault
- What does tort mean?
o Comes from Latin meaning tortus, which means twisted, and the French word Tort which means injury or wrong
o Is a civil wrong, other than a breach of contract, for which the law provides a remedy
- Modern Tort Law
o Increasing in the public sphere
* Medical malpractice, injuries due to fault, etc.
- Purposes of tort law
o To provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands”
o To deter wrongful conduct
o To encourage socially responsible behavior
o To restore injured parties to their original condition, insofar as the law is able, by compensating them for their injury
o To vindicate individual rights of redress
- Historical Origins
o Gradual development, difficult to pin down
o Lots of British legal type stuff, origins have to do with that, I guess
* Writ of trespass
* Originally was the punishment of a crime, but enveloped satisfaction to the injured party
o Trespass v. Case
* Trespass lies only for direct and forcible injuries, while case lies for other tangible injuries to person or property
- Cases to Brief
o Hulle v. Orynge (The Case of Thorns) - 1466
* Dude damaged another’s house on accident while building his house
* Dude was liable for damages to the house
o Weaver v. Ward – 1616
* P brought action of trespass of assault and battery against D
* Accidental wounding during training exercise, both were soldiers
* Differentiation between “with a felonious mind” or accidental
* Noted that accidental isn’t necessarily liable in this case
o Brown v. Kendall – 1850
* Two dogs fighting, D tried to separate them with a stick, but accidentally hit P in the eye and injured him
* Question of if a party’s remedy should be sought in an action of the case, or of trespass
* If hitting the plaintiff was unintentional, and done in doing a lawful act, then the defendant was not liable, unless it was done without due care
o Cohen v. Petty - 1933
* D driver P passenger, D drove reckless and wrecked and caused P injury
* D fainted while driving the automobile
* So, not chargeable with negligence as the illness was sudden and immediate
o Spano v. Perini Corp. - 1969
* Is negligence necessary for damages?
* Were the vibrations, not the debris
* Absolute liability for blasting/demolitions?
* Nope, if you take all care and injure yourself, not liable for damages, with balances of rights b/w landowner and their neighbors to improve property without hurting others…
Chapter 2: Intentional Interference With Person or Property
1. Intent
o Garrat v. Dailey
* D = five years old infant
* D pulled out the chair from under P and sued
* Found that
* He did not have any willful or unlawful purpose in his actions
* He did not have any intent to injure the plaintiff
* Did not have any intent to bring about any unauthorized or offensive contact with her person
o The placement of intent in tort law
* Act must be done with the purpose of causing the contact, etc., or with knowledge on the part of the actor that such contact, etc. is substantially certain to be produced
o Issue of age
* Not a factor in tort
o Spivey v. Battaglia
* P and D employees of a company
* D put arm around P, causing damages to P’s neck, nerves, etc.
* Suit for Negligence and A&B
* Neg = unintentional, A&B = intentional, so can’t both be true
* Incident is more Neg, without “substantial certainty” to cause harm
* Reversed lower decision of summary judgment for the P – D couldn’t have been “reasonably certain” of the harm that was caused.
o Ranson v. Kitner
* Dog killed by D
* D thought it was a wolf
* Simple mistake
* But, liable for the value of the dog
o McGuire v. Almy
* A&B case (assault and battery)
* Should the judge have directed a verdict in the case?
* D=crazy, P=nurse
* Is crazyperson liable for torts?
* Is it intentional or not?
o Is that person capable of intent to harm?
o Jury found that it was so, and so it was tortuous and able to sue for such
o Talmage v. Smith
* D had property with sheds
* Kids on his roofs, may or may not have seen the P
* D threw stick at kids.
* P was blinded by the stick.
* Intent to hit the kid or intend to frighten?
* Is it a use of reasonable force?
* Was a fair statement of law, but the result based on jury findings
* The fact that the result was injury other than intended doesn’t matter, D was responsible
2. Battery
o Cole v. Turner
* Least touching someone in anger is battery, accidental brush is not, violence is
o Wallace v. Rosen - 2002
* Instructor accused of battery, claimed it was in the purpose of protecting the kids during a fire drill.
- Restatement (Second) of Torts (1965)
o Battery: Harmful Contact
* Is subject to liability if
* Intends to cause harm or offensive contact, or imminent apprehension of such a contact
* Harmful contact directly or indirectly results
o Battery: Offensive Contact
* 1. An actor is subject to liability if
* a. he acts intending to cause harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact
* b. an offensive contact with the person of the other directly or indirectly results
* 2. An act which is not done with the intention stated in Subsection does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.
- Fisher v. Carrousel Motor Hotel, Inc.
o P is a mathematician employed by NASA attending a conference at D’s hotel.
o D employee took a plate from P’s hand and said that “Negro could not be served in the club”
* Court found it constituted battery due to the proximity of the plate to P’s body, was with hostile intent.
3. Assault
- I de S et ux. V. W de S (1348)
o Wife assaulted but not actually hit.
o First account of battery
- Western Union Telegraph Co. v. Hill
o Assault case
o Western union sexual harassment, tried to grab the wife of Hill
* Sapp of Western Union did not act within the scope of his employment, and tried to grab Hill, was guilty
4. False Imprisonment
- Big Town Nursing Home v. Newman (1970)
o Initial judgment for P
o D appealed
o Sued for actual and exemplary damages stemming from false imprisonment
o Newman = retired person, living in Home
* Newman was told he would not be held at Home against his will, but was not allowed to use phone, leave, or take visitors, held forcibly at Home
o Home acted in complete disregard of Newman’s rights
* Amount of damages was excessive, but confirmed that it was a case of false imprisonment
- Parvi v. City of Kingston (1977)
o P trying to calm down argument between others.
o P taken out of town and left there by police/D
* P was struck by a car while returning
o False imprisonment?
* Reversed. Did constitute false imprisonment
* Does not need to be conscious of imprisonment at the time in order for it to be called false imprisonment
- Hardy v. LaBelle’s Distributing Co. (1983)
o D employer, P employee
* P was detained in a back room and questioned about stealing a watch, which was never proved
* P sued for false imprisonment
o Issues
* Whether the evidence is sufficient to support the verdict
* If the District court erred in the issuance of its instructions
o Rule
* Restraint of an individual against their will and unlawfulness of such restraint
* P was not forced to stay against her will, but wanted in order to clarify the situation
o Favor of Defendants
- Enright v. Groves (1977)
o Claim of false imprisonment
o Groves/D was ununiformed officer
* P taken forcefully without charges to police station. Later convicted of ordinance violation for having her dog loose.
* D states probably cause, and force was permissible in act of arresting the P.
o Affirmed in favor of P
* Officer never explained why P was being arrested, and officer had no reason to arrest
- Whittaker v. Sandford
o P attendees, D leader of religious sect
o P attempted to abandon sect and was detained by D
o Brought action for false imprisonment after being released with the help of a local sheriff.
o Won in court, defendant appealed
o Ruling
* It was false imprisonment
* The prison, or barrier, was the sea on the yacht
5. Intentional Infliction of Emotional Distress
- State Rubbish Collectors Ass’n v. Siliznoff, 1952
o P sued to collect on certain notes
o D sued for emotional distress, threats of being beat up by P
- Slocum v. Food Fair Stores of Florida, 1958
o P sought damages for mental suffering and emotional distress
* Heart attack and whatnot from insulting language by the D
o Rule
* “Content only intended to cause emotional distress only”
* Verbal stuff was not a tort in itself
- Harris v. Jones 1977
o P employee of GM, D superior at GM
o D ridiculed P for speech impediment
o Conclusion
* Outrageous conduct causing severe emotional distress
* Intentionally or recklessly… causes severe emotional distress…and for resulting bodily harm
* Four elements for liability for intentional infliction of emotional distress
* Intentional or reckless
* Extreme and outrageous
* Causal connection between conduct and distress
* Distress must be severe
* Ruled in favor of D
* Wasn’t that bad, the Judge says to be ruled as “severe”
- Taylor v. Vallelunga 1959
o P says he was beat up by D
o 2nd count of tort, P says she was traumatized by seeing the beating
* Severe fright and emotional distress
o Ruling
* Failure for 2nd count to meet requirements of intentional infliction of emotional distress
* Defendant did not know that the daughter was there, or would view the attack, and the emotional distress was not purposefully or maliciously aimed at her
6. Trespass to Land
- Dougerty v. Stepp 1835
o Proof for act of trespass was that his neighbor claimed it for his own, but didn’t do anything on his land except survey it
* Ruling that it wasn’t a trespass, and that damages should be dependent on what was done on the land as an act of trespass
o Court on appeal says that if you trespass, that is harm
* All unlawful entries are entitled to nominal damages
- Herrin v. Sutherland 1925
o D hunting for birds, shot over P’s land
o Nominal damages ordered in trial court
o Judgment affirmed for nominal damages at least for trespass
- Rogers v. Board of Road Com’rs for Kent County 1947
o P damages for death of husband caused by trespass of D
* Trespass consists on leaving a stake on the land
o D negligence of county commissioners
o Trial dismissed case, P appealed
* Guy was killed on a snow fence, mower accident.
o Ruling
* Restatement says “failure to remove a thing placed on the land pursuant to a license or other privilege” is trespass
* Case remanded for further proceedings
7. Trespass to Chattels
- Glidden v. Szybiak (1949)
o Procedural Posture
* Defendants appealed the judgment of the trial court, Hillsborough County (New Hampshire), holding them liable for plaintiff's injury caused by defendants' dog.
o Overview
* Defendants' dog injured plaintiff. Defendants contended that plaintiff was engaged in the commission of a trespass at the time of her injury and was therefore, barred from recovery under the statute. The court held that no claim was advanced at the trial that the dog was in any way injured by the conduct of plaintiff. Consequently she could not be held liable for a trespass to the dog that would prevent her recovery under the statute here invoked. Additionally, the court found that only one of the defendants owned the dog. The judgment against the defendant non-owner was set aside, as she was not in possession of the dog. Possession implied the exercise of care, custody or control of the dog by one whom though not the owner assumes to act in his stead. Here the actual care, custody and control of the dog was in defendant owner.
o Outcome
* The judgment against the defendant owner was affirmed, as she alone was responsible for the conduct of the dog. However, the judgment against the defendant non-owner was set aside, as she was not in possession of the dog at the time of the injury.
- Compuserve v. Cyber Promotions (1997)
o Procedural Posture
* Plaintiff, internet service provider, was granted a temporary restraining order that enjoined defendant advertising company from using the provider's services to send or receive electronic mail (e-mail) and from falsely representing that the e-mail was generated by the provider. The provider then sought a preliminary injunction to enjoin the company from sending unsolicited e-mail advertisements to its customers.
o Overview
* The internet service provider contended that they were entitled to a preliminary injunction enjoining the advertising company from sending unsolicited e-mail to its customers on the grounds that the company's transmission of e-mail to the provider's computer equipment constituted an actionable tort. The court held that because the provider had demanded that the company stop sending e-mail to its customers, and the company deliberately evaded the providers' efforts to protect its computer equipment from such use, the provider had an viable claim against the company for trespass to personal property and was entitled to injunctive relief to protect its property. In so holding, the court found that (1) electronic signals generated and sent by computer were sufficiently physically tangible to support a trespass claim; (2) the value of the equipment used by the provider was diminished as a result of the company's conduct; (3) the provider was not a public utility and thus the company enjoyed no special privilege to use the provider's proprietary computer systems; and (4) the company had adequate alternative means of communication available to it.
o Outcome
* The court extended the original temporary restraining order until a final judgment was entered. The court further granted the internet service provider's request for a preliminary injunction enjoining the advertising company from sending unsolicited electronic mail to the provider's customers.
8. Conversion
- (A) Nature of the Tort
o Pearson v. Dodd (1969)
* Facts
* Dude had his misdeeds made public
* Sued for invasion of privacy, conversion
* What is conversion
o Took something, converted via interference, reduced or removed the value of a property
* The wrongful possession or disposition of another's property as if it were one's own; an act or series of acts of willful interference, without lawful justification, with an item of property in a manner inconsistent with another's right, whereby that other person is deprived of the use and possession of the property. [Cases: Trover and Conversion ? 1.] — convert, vb. — conversionary, adj.
- Restatement § 222A. What Constitutes Conversion
o (1) Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.
o (2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:
* (a) the extent and duration of the actor's exercise of dominion or control;
* (b) the actor's intent to assert a right in fact inconsistent with the other's right of control;
* (c) the actor's good faith;
* (d) the extent and duration of the resulting interference with the other's right of control;
* (e) the harm done to the chattel;
* (f) the inconvenience and expense caused to the other.
(To Chapter 3) 2. Self-Defense
- Existence of privilege
o Reasonable force to defend himself against threatened battery on the part of another.
- Retaliation
o Privilege is not recognized for retaliation
- Reasonable Belief
o Privilege when one believes that force is necessary to protect himself against battery
- Provocation
o Verbal insults and provocation does not justify the exercise of self-defense
- Amount of Force
o Must be or appear reasonably necessary
- Retreat
o Defendant must retreat if he can do so without increasing his danger, rather than standing his ground and using deadly force
- Injury to a third Party
o Defending against A, injures B unintentionally, then the defendant is not liable
3. Defense of Others
- Nature of Privilege
o Is recognized as something similar to self defense
4. Defense of Property
- Katko v. Briney (1971)
o Question
* If an owner may protect personal property in an unoccupied boarded-up farm house against trespassers and thieves by a spring gun capable of inflicting death or serious injury.
o Facts
* Dude breaking into abandoned farmhouse had his leg blown off by a shotgun trap.
* Dude sued owners for damages
o Ruling
* Wasn’t in self defense and was an unreasonable use of force, so the D landowner was liable for damages to the P thief.
5. Recovery of Property
- Hodgeden v. Hubbard (1846)
o Facts
* P buyer of stove, D seller warehouse
* D found P to have bad credit and P had misrepresented himself.
* D took stove away from P by force and violence, P drew a knife and was held down by D as the stove was taken away
o Ruling
* D not justified in use of force to recover property, gave nominal damages to the P.
- Bonkowski v. Arlan’s Department Store (1968)
o Facts
* P, wife and husband arrested by D, mall cop
* D accused P of stealing based on 3rd party claim
* P presented receipts, D left
* P brought claim for emotional distress, slander, false arrest
o Ruling
* Dismissed due to lack of evidence and privilege of the D in protecting its property
6. Necessity
- Surocco v. Geary (1853)
o P to recover damages for D exploding P’s house and property
o D did so as a necessity to stop a fire burning down the area
- Rule
o If necessary to protect society or the civil government, it’s cool
- Ruling
o For the D
- Vincent v. Lake Erie Trasp. Co. 1910
o P dock owner, D unloading ship on P’s dock
o Damages to dock for 500 for leaving ship tied to dock during a storm
o D damaged dock.
- Ruling
o P entitled to damages for property
* If you use private property, you are entitled to pay for damages to other person’s property in preservation of your own.
Privileges not assigned
- Arrest
- Discipline
Lecture Notes
Development of Liability Based upon Fault
- General Stuff
o Tort actions
* Big Slice of Negligence
* Strict liability don’t prove fault, is uncommon
* Misrepresentation
* Defamation
* Invasion of privacy
* Interference with contracts and the Judicial process
* Civil rights actions and other torts
o Origins
* To prevent breach of peace and settle disagreements
* To deter conduct that exposes people to harm
* Protections for some rules
* Like if you try to save a kid, can be protected from liability
Liability Based on Fault
* Definitions
* Trespass
o Origins in early common law
o Refers to damages nowadays
* Trespass on the case
o Damages, indirect harms, negligence
o Antiquated concepts
* Current divisions
* Intentional/unintentional in modern era
* Damages
o Remedy for harms, money value to correct the trespass
* Types of Damages
o Compensatory damages
* To correct or make whole
o Nominal damages
* Don’t have to show actual harm, yet is a minimal damage to show harm has occurred
o Punitive damages
* Punishment to discourage wrong actions
* Cases
* Weaver
o Unintentional, accidental, in the course of lawful conduct
* D must prove that he was without fault
* Like if a child runs out and gets hit by a car, must not be anticipatable
* Brown v. Kindall
o Jury instructions won’t correct
* Said if not mandated, should be liable
* No fault if both act reasonably
* Intentional v. voluntary act
* Is not intentional, so, not liable
o What if neither exercising care?
* Contributory negligence
* Largely abandoned, means defense against D’s negligence, both at fault then negligence
* Cohen
o Not forseeable, unforwarned
o Sudden, immediate
o Necessary to avoid for the accident
* Not liable
* Spano v. Perini
o Absolute or strict liability
* Says it applies to all liability, to dangerous acts
* Boundaries for strict liability?
* All things can be Strict liability because many things are dangerous
o Not a matter of common usage
o One is exposing others to an unusual risk
* Garrat v. Daily
o Needed substantial certainty and purpose to show intent that it was a tortuous act
o Tests for intent
* equal purpose, substantial certainty
o Criticism of substantial certainty test
* How to gain/show “substantial” certainty?
* Spivey v. Battalia
o Negligence, as injury was unforeseeable injury
o Intent was “offensive bodily contact”
* Question is what the damages are for incident
o Statute of limitations
* It’s a big deal
o Distinction between assault and battery
* Assault
* Apprehension of appending battery
* Battery
* Physical harm or unwanted undesired contact
o Privilege
* Such as self defense for an impending assault
* Employers responsible for employee negligence, usually
o Proximate Cause
* Tracing the consequences of an act further with intentional over
* Not very true in practice
o Ranson v. Kitmer
* If a mistake, still liable for intent
o McGuire v. Almy
* Just because crazy, still liable (in torts)
* Everyone would take the crazy defense
* Intoxication
* Also not an excuse, generally
o Talmage v. Smith
* Threw a stick, liable?
* Principal of transferable intent
o Transfer can go to all many intentional torts
o Restatement of torts disagrees
* Or at least gets a floor on transfer of intent
* Privilege of intent both transfer, with privilege and liability
- Battery
o Cole v. Turner
* Historical
o Wallace v. Rosen
* Harmful contact, but was harmful touching?
* Privilege in defense of student
* May not increase to standard of battery
* Issue with battery instead
o Reckless? Battery? Conflict with intent?
o Fisher v. Carrousel
* Racial insult, uses battery standard
* Case is snatching act
o Close connection, attack on a thing is equal to an attack on a person
* Fits battery standard
- Assault
o I de S et ux
* Wife nearly hit, wasn’t, still entitled to tort
* 1st case of assault and not battery
o West Un. V. Hill
* Guy propositioned women
* Tried to grab
* Apprehension of unpermitted bodily contact
o “reasonable” apprehension
o of an “immanent battery”
* Emotional distress?
False Imprisonment
- Big Town
o Jury ruled for P
* Judge decreased payout on appeal
o Confinement v. Obstruciton
* Obstruction is less bad
* Needs more than obstruction
* No clear definition for what is/isn’t false imprisonment
* Reasonable means of escape
o Like, crawling through a sewage pipe is not reasonable
- Parvi v. Kingston
o Matter if actual harm, or knowledge of invasion of protected interest?
* No. Doesn’t need to know was imprisoned or attacked in order for it to be FI
* Loss of freedom, awareness, at the time is important but not necessary to be aware later
* Avoids frivolous cases
* Some disagreement
* Folks sometimes say that awareness is necessary
- Hardy v. LaBelle
o Was not physically prevented from leaving
* Not imprisoned, as was able to leave and willing to stay
o May be imprisoned if valuable possessions were taken, etc.
* Often FI is a jury issue with many variables
- Enright v. Groves
o Cop detained lady, took to jail for not producing DL
* Convicted of leash law violation for dog
* Lady sued for FI
* Cop had no reason to insist to see DL, or arrest for legit reason
- Whittaker v. Sanford
o No physical detainment but the sea acts as a barrier
* Quickly as FI
o Issue
* Consent to confinement across the ocean
* Legit
o Dangerous to let out in middle of ocean, had prior consent
* But failure to release from legit confinement is FI
Intentional Infliction of Emotional Distress
- Garbage Ass v. Slitz
o Ass sues for non-payment
o Slitz says that was threatened and sued for emotional distress
* Before this case in California, not easy to get ED
* Was not common unless attached to another damages case of action
* Is in the essence of Assault claims
o 1st Restatement’s perspective
* Needed physical or other components, more direct
* Difficult to measure
* Concern over the number of possible claims
o Need some cause for it, legit
* Some situations are serious enough to bring tort for ED
o Cause of Action in ED
* Direct cause of ED in actions of the defense
* Is how awful the action is, or likely to cause ED
* Substantial certainty or negligence/recklessness
* Involves severe ED
o Jury would have to find ED link to physical harm with ED
* Undesirable
* Is a medical determination
* Silly things coming as a result of ‘being nervous’
* Court rejects restatement on this
- Slocum v. Foods
o Concern of legit or non-legit claims for ED
o P told she stinks, rudely
o P has heart attack
o P sues for damages, ED
o Court says
* Must believe that intent was that severe emotional distress
* Severe emotional distress and intent and reckless
- Harras v. Jones
o Hinges on Extreme and Outrageous argument
* Preexisting case of crazy made wore, takes away from the extreme and outrageous claim
o How 2 measure extreme and outrageous
* Not precise, but is very bad behavior
* Factor’s test to find ED
- Need for a standard that holds the most serious while avoiding the most trivial
o Most serious cases may have two qualifications
* Cases where someone suffers an extreme atypical crippling distress
* Behavior must be extreme and outrageous, or is reckless
* Is repetitive, is from a person in power, is of a known sensitivity, is done regardless of asking for it to stop, contextual permissibility
* Causation
* Intent or reckless behavior
o No clear bright line due to inherent vagueness of the key terms
* Extreme, outrageous, everyday, etc.
- Harris v. Jones
o Why didn’t establish severe emotional distress?
* Was an existing condition already
* Didn’t regularly visit the psychiatrist, or seem like it was an extreme level of emotional distress
- Taylor v. Vallelunga (1959)
o P did not allege that the D knew that she was even there
* P has some need to show or allege that the D had some measure of substantial intent or belief that emotional harm was there
* Therefore, the court said that the P needs that and did not proceed with this case
- Notes and Questions
o Footnote 4, Knierim v. Izzo
* Threat carried out outside of the presence of the wife
* Threat was to kill the lady’s husband
* Court still ruled for P as it was the intent to cause the wife emotional distress, despite her not being there when the threat was made.
o Schurk v. Christensen
* Mother of five year old recovered against babysitter molester
* Permitted to recover
* Severe distress made
* Usually, though, P must be present and the harm directed
Trespass to Land
- Dougherty v. Stepp
o Who’s right are we protecting
* The person entitled to immediate possession
* Landowner or lease holder
* Entitled to nominal interest
o Principal of nuisance
* Damn kids on my lawn
* Must find a way to balance both parties reasonable interest
- Dougherty v. Stepp
o Physical invasion question
* A person walking across is physical trespass to land, which was required in old timy common law
* But now, in some circumstances, odors, gasses, etc are also, but they didn’t use to be considered “Trespass to land”
- Herrin v. Sutherland
o Guy hunting ducks over a dude’s land
o Shot over the dude’s land
* Is it trespass?
o Yes
* Noise issue, the physical shot going over the land
* Is mostly a nuisance issue, annoying the cows
o How much airspace do you own?
* Cannot be everything, with airplane traffic and etc.
* Is usually about to the length of the top of your building or so
* “The immediate reaches above the land”
* Some exceptions with commercial landings, (questions of privledge)
o Underneath the ground?
* Some, but is taken over by a special field of law relating to mineral, oil and gas rights
- Rogers v. Board of Road Com’rs for Kent County
o Initially
* Was no trespass, as the stake was privileged according to agreement
o Winter came
* Stakes were not removed as they should have been, and it became trespass because it was on their land without cause or permission
o Extended law beyond trespass on entry
* Trespass ab initio
* After period of consent passes, you may have trespass
o Problem
* Trespass is an intentional tort
* Leaving the fencepost was unintentional, however, which makes the ruling of this case questionable.
* IS more of a case of negligence
- Footnote
o Consequences of trespass
* If intentional, consequences of the trespass will be extended further.
* If negligence, not as much
* On the other hand, usually negligence is traced pretty far.
Trespass to Chattels
- Glidden v. Szybiak (1949)
o Dog bites 4 year old girl
* No trespass to the dog as the dog was not damaged
* Pain not factored in, as it is “chattel”
o Difference between chattles and land trespass?
* Chattel is movable and would place undue burden on folks, bring frivolous suits where there is no damage but unintentional trespass
* Like picking up the wrong book or brushing by a person’s car in a parking lot
o Would need damage to be tortuous
- Compuserve v. Cyber inc. (1997)
o Using service despite being told not to.
o Damage?
* Was losing customers due to the spam emails
o Trespass?
* Yes, as electronic stuff was going through their computers and their property, and it served no good reason
* They even did it despite countervailing efforts of the P
o Ruling
* Plaintiff needed some kind of protection from this trespass.
o Question
* What about private people?
* No, there really isn’t any harm, and there would be a flood of litigation if there was a tort remedy for SPAM
* But a virus?
* Yes, if they have damaged your computer and you can identify them, and they have the money to pay you, you can bring a personal cause of action for any real harms caused.
- Pearson v. Dodd (1969)
-
- Conversion
o What is the value of the car before the conversion/possession
* “You break it, you buy it”
o A long history
* Many changes through time
o Today?
* Modern cause of action
* If an object is taken and converted for their own use, unlawfully
o How does conversion happen?
* Zaslow v. Kroenert
* Dispute over who owns a house, P leaves, D changes locks, D puts P’s furniture in a warehouse, and who owns the right to the house?
* Was there conversion of the furniture that had been moved out
o No on appeal, as it was not a serious enough interference, was a temporary displacement
o Hypo
* Warehouse burns down while furniture wasn’t supposed to be there, all else equal, does that liability go to the taker or the owner?
* Because of the intervening act, the value was taken, and so yeah, it’s a conversion.
o How long, about?
* 35 minutes, depending on the context and the owners need for the object, or dependency on that object
o Outlined in § 222A
* Importance of factors depend on the context, and are weighed differently
* It’s a super subjective judgment :(
- Chattel Conversion
o How do you convert something
* IF it is damaged, altered, use is taken from owner, etc.
* THEN may be converted
- The Effect of good faith
o If it’s a mistake, may still be liable
* Is generally not a defense
o A few situations where adjustments are made
* Commercial convenience factor
* If no suspicious behavior, and is common practice, may not be liable
o Bone Fide purchaser problem
* Dude takes a book, sells it to someone else
* Cannot get good title from a thief, therefore, you have to return it to the original owner even if you paid for it.
- Necessity of Demand, Return of Chattel
o Do not need to demand back if you want conversion
* If it’s no longer wanted and conversion is complete, can bring tort
* Some states necessitate a demand to bring action
o Must chattel be returned?
* What if it is refused upon the taker offering it back?
* Even if it’s still in pristine condition?
o Cannot force someone to take something back
* Exception, is that the court in its discretion may force you to take it back and limit you to trespass damages
o Usually only if a thing is taken innocently will it need to be taken back, or won’t qualify as conversion in this situation.
- Note
o Can force someone to buy, but not to sell
* Otherwise, dude can just scratch something that the owner won’t sell if he want’s to buy it, and claim conversion to his advantage
- What may be converted?
o Something like promissory notes may have the value attached instead of just the value of the piece of paper that may have been taken
* Or such as taking a key to a car, may qualify as conversion of the car and not merely the key.
o Intangibles like goodwill?
* No, there are other remedies that are better suited, although there isn’t anything clearly preventing that route under the law
- Who may Maintain the Action
o Usually the one’s who’s immediate rights have been taken
New Chapter 3 : Privileges
- 1. Consent
o O’Brian v. Cunard SS Co. (1891)
* Was vaccinated against the lady’s wants
* Kind of, she didn’t say anything, but she stood in line and took the shot, so she wasn’t forced, there were external manifestations of acceptance and no external refusal.
* Vaccinations are beneficial too, so, it’s like, come on.
o Hackbart v. Cincinnati Bengals (1979)
* Dude got hurt at football
* Injury ended his career
* Was not during the normal course of the game, was after a play
* The point?
* Is inherently violent game that was consented to
* Court may not determine it as consent, must be remanded to jury as it was not during the normal course of the game and may not have been consented to, and it was against the rules of the game
o Just if it’s a violation of the rules doesn’t make it tortuous, unintentional violations would exceed limits and ruin the game
* How then do they determine consent in a context like this?
* Customs of the game, what normally happens, cultural acceptance or norms, etc.
* What do the players accept as the permissible boundaries?
* May want to err on the side of consent having been offered.
* If there is a custom or practice, it privileges people to act a certain way
o Unless a proper notice is given on an individual or group thing.
o Mohr v. Williams (1905)
* P patient D doctor
* Agreed operation on one ear, but operated on the other one unexpectedly
* Consent was not given, but it was to fix a disease discovered during the process of the medical procedure
* Is it battery because she did not consent?
* Yes.
* But what about the fact that it was beneficial?
* Does not affect the claim of battery, but it may affect damages calculation
* Exceptions?
* If patient is unable to give consent, or if there is a risk of serious bodily harm, or if a reasonable person would consent, and if the doctor has no reason to believe that the patient would not consent.
o Mostly applies to cases of emergencies where medical procedures must be performed without much notice
o If a Child
* Must have consent from parents, but if a parent says no, like in a religious context, then you can take it to a judge and may be able to grant the exception to save a life over violating the parents’ power to exercise control over their child.
o De May v. Roberts
* Pregnant lady, doctor and assistant
* Found out that he was not a doctor’s assistant and was a single unmarried young man
* P sued and was granted that he fraudulently made her believe that he defrauded her and unlawfully laid his hands on her
o (seems bullshitty)
* De May didn’t say anything deceptive, so where is the deception?
* Mores stated that it was offensive for such a thing, and the lady was entitled to her privacy
o Doctor should have understood this, and that they would have thought he was qualified to assist with the birth.
* The point?
* Can have consent, but if it is obtained through deception then it may still be tortuous
- Consent to a criminal act
o Court does not wish to reward a criminal act
* Deterrence
o IF both are criminal actors
* Generally, just consider if consent, then consent
* Not a factor of the criminal activity when it’s mutual
o Boxing hypothetical
* Consent for injury
* Illegal match?
o It’s consensual, so injury may not,
* Legal match with regulations that are ignored?
o May affect the law differently, and increase liability for what had been thought of as consensual
* Because it’s not a fully informed consent
- Conversion
o What is the value of the car before the conversion/possession
* “You break it, you buy it”
o A long history
* Many changes through time
o Today?
* Modern cause of action
* If an object is taken and converted for their own use, unlawfully
o How does conversion happen?
* Zaslow v. Kroenert
* Dispute over who owns a house, P leaves, D changes locks, D puts P’s furniture in a warehouse, and who owns the right to the house?
* Was there conversion of the furniture that had been moved out
o No on appeal, as it was not a serious enough interference, was a temporary displacement
o Hypo
* Warehouse burns down while furniture wasn’t supposed to be there, all else equal, does that liability go to the taker or the owner?
* Because of the intervening act, the value was taken, and so yeah, it’s a conversion.
o How long, about?
* 35 minutes, depending on the context and the owners need for the object, or dependency on that object
o Outlined in § 222A
* Importance of factors depend on the context, and are weighed differently
* It’s a super subjective judgment :(
- Chattel Conversion
o How do you convert something
* IF it is damaged, altered, use is taken from owner, etc.
* THEN may be converted
- The Effect of good faith
o If it’s a mistake, may still be liable
* Is generally not a defense
o A few situations where adjustments are made
* Commercial convenience factor
* If no suspicious behavior, and is common practice, may not be liable
o Bone Fide purchaser problem
* Dude takes a book, sells it to someone else
* Cannot get good title from a thief, therefore, you have to return it to the original owner even if you paid for it.
- Necessity of Demand, Return of Chattel
o Do not need to demand back if you want conversion
* If it’s no longer wanted and conversion is complete, can bring tort
* Some states necessitate a demand to bring action
o Must chattel be returned?
* What if it is refused upon the taker offering it back?
* Even if it’s still in pristine condition?
o Cannot force someone to take something back
* Exception, is that the court in its discretion may force you to take it back and limit you to trespass damages
o Usually only if a thing is taken innocently will it need to be taken back, or won’t qualify as conversion in this situation.
- Note
o Can force someone to buy, but not to sell
* Otherwise, dude can just scratch something that the owner won’t sell if he want’s to buy it, and claim conversion to his advantage
- What may be converted?
o Something like promissory notes may have the value attached instead of just the value of the piece of paper that may have been taken
* Or such as taking a key to a car, may qualify as conversion of the car and not merely the key.
o Intangibles like goodwill?
* No, there are other remedies that are better suited, although there isn’t anything clearly preventing that route under the law
- Who may Maintain the Action
o Usually the one’s who’s immediate rights have been taken
Moving on
New Chapter 3 : Privileges
1. Consent
o O’Brian v. Cunard SS Co. (1891)
* Was vaccinated against the lady’s wants
* Kind of, she didn’t say anything, but she stood in line and took the shot, so she wasn’t forced, there were external manifestations of acceptance and no external refusal.
* Vaccinations are beneficial too, so, it’s like, come on.
o Hackbart v. Cincinnati Bengals (1979)
* Dude got hurt at football
* Injury ended his career
* Was not during the normal course of the game, was after a play
* The point?
* Is inherently violent game that was consented to
* Court may not determine it as consent, must be remanded to jury as it was not during the normal course of the game and may not have been consented to, and it was against the rules of the game
o Just if it’s a violation of the rules doesn’t make it tortuous, unintentional violations would exceed limits and ruin the game
* How then do they determine consent in a context like this?
* Customs of the game, what normally happens, cultural acceptance or norms, etc.
* What do the players accept as the permissible boundaries?
* May want to err on the side of consent having been offered.
* If there is a custom or practice, it privileges people to act a certain way
o Unless a proper notice is given on an individual or group thing.
o Mohr v. Williams (1905)
* P patient D doctor
* Agreed operation on one ear, but operated on the other one unexpectedly
* Consent was not given, but it was to fix a disease discovered during the process of the medical procedure
* Is it battery because she did not consent?
* Yes.
* But what about the fact that it was beneficial?
* Does not affect the claim of battery, but it may affect damages calculation
* Exceptions?
* If patient is unable to give consent, or if there is a risk of serious bodily harm, or if a reasonable person would consent, and if the doctor has no reason to believe that the patient would not consent.
o Mostly applies to cases of emergencies where medical procedures must be performed without much notice
o If a Child
* Must have consent from parents, but if a parent says no, like in a religious context, then you can take it to a judge and may be able to grant the exception to save a life over violating the parents’ power to exercise control over their child.
o De May v. Roberts
* Pregnant lady, doctor and assistant
* Found out that he was not a doctor’s assistant and was a single unmarried young man
* P sued and was granted that he fraudulently made her believe that he defrauded her and unlawfully laid his hands on her
o (seems bullshitty)
* De May didn’t say anything deceptive, so where is the deception?
* Mores stated that it was offensive for such a thing, and the lady was entitled to her privacy
o Doctor should have understood this, and that they would have thought he was qualified to assist with the birth.
* The point?
* Can have consent, but if it is obtained through deception then it may still be tortuous
- Consent to a criminal act
o Court does not wish to reward a criminal act
* Deterrence
o IF both are criminal actors
* Generally, just consider if consent, then consent
* Not a factor of the criminal activity when it’s mutual
o Boxing hypothetical
* Consent for injury
* Illegal match?
o It’s consensual, so injury may not,
* Legal match with regulations that are ignored?
o May affect the law differently, and increase liability for what had been thought of as consensual
* Because it’s not a fully informed consent
2. Self Defense
Outline #3 - Abbreviated study guide (in .doc format, hosted on Dropbox)
Intentional Interference with Person or PropertyIntent
Was the harm intentional?
o Intent is determined by:
* Evaluation of a person’s state of mind, an act may have the purpose of causing an outcome, or there exists substantial certainty that such an outcome will occur. (Garrat v. Dailey)
- If clearly yes
o An individual may be liable for harms caused, including punitive.
- If clearly no
o May be liable for economic damages but not punitive (Ranson v. Kitner).
- Yes, but…
o The intent was from a crazyperson?
* Mental illness does not remove liability for tort (McGuire v. Almy)
o It was a child?
* Not a factor, may be used to evaluate capacity to connect action with outcome (Garrat v. Dailey)
- No, but…
o I did not intent to hit that guy. I meant to hit the other guy standing right next to him.
* Transfer of intent – still counts (Talmage v. Smith)
- I intended one harm and another happened (like battery to trespass to chattels)
o Transfer of intent may apply, but it is questionable
Battery
Was a contact battery?
o An actor is liable for battery if he acts intending to cause harmful or offensive contact, and harmful or offensive contact directly or indirectly results
* Intent
* Harmful or offensive
* Resulting contact
- Yes, but…
o I only touched the dude
* It’s still battery and you are liable (Cole v. Turner)
o I was trying to move a kid for its benefit
* That’s okay (Wallace v. Rosen)
- No, but…
o I broke a plate he was holding
* Close enough, it’s battery (Fisher v. Carrousel Motor Hotel, Inc.)
Assault
Was it assault?
o Assault is the apprehension that comes before an impending battery, which may or may not occur
- Yes, but…
o I couldn’t have actually reached her
* Still assault (Western Union Telegraph v. Hill)
False Imprisonment
Was it False imprisonment?
o A person held against their will without consent or cause
- Yes, but…
o It was an old person, and old people don’t have rights.
* That was wrong and you should pay (Big Town Nursing Home v. Newman)
o They were not conscious when they were held against their will
* It still counts (Parvi v. City of Kingston)
o They could have easily left if they wanted
* If there is no significant impediment to leaving, it’s not false imprisonment (Hardy v. LaBelle’s)
- No, but…
o The initial imprisonment was unjustified, but justification was found later for the imprisonment
* Is false imprisonment (Enright v. Groves)
o Consensual imprisonment that extended beyond the time agreed to
* Is false imprisonment (Wittaker v. Sandford)
Intentional Infliction of Emotional Distress
Did I hurt your feewings?
- Yes, intentionally
o Was it severe (extreme and outrageous)?
* Yes - Threats to a person’s well being, like threatening to beat them up is tortable (State Rubbish Collectors Ass’n v. Siliznoff)
* Did it cause severe distress?
o Yes
* May be liable
o No
* May not be liable unless actual new and significant harms come as a result of the behavior (Harris v. Jones)
* Sort of - Consequences more severe than reasonably considerable in the action may not be tortable, such as verbal insults causing a heart attack (Slocum v. Food Stores of Florida)
* No - Not IIED
- No - Not IIED if not aimed at the person who is distressed (Taylor v. Vallelunga)
Trespass to Land
Did you come on my land, you jerkface?
- Yes
o All unlawful entries onto land justify nominal damages, even if no damage to land (Dougerty v. Stepp)
- Yes, but I had permission
* Not tortuous
o But your stay on my land extended past the time you were given permission to stay
* Is tortuous (Rogers v. Board of Road Com’rs for Kent County)
- No, but - Even shooting over a person’s land constitutes trespass (Herrin v. Sutherland), as does something flying above or whatever (immediate reaches above the land)
Trespass to Chattels
Hey, that’s my stuff!
- I was injured while messing with your stuff. Can I still sue you?
o Yes (Glidden v. Szybiak)
- But the stuff was digital. Can I be sued?
o Yes (Compuserve v. Cyber Promotions)
- But I had to take your stuff, and I gave it back, and it wasn’t hurt. Can you still sue me?
o Nope (Zaslow v. Kroenert)
Conversion
You took my stuff. Do I have a claim to force sale?
- Was the property taken and used for the other’s own purposes?
o Yes (Pearson v. Dodd)
- Does good faith factor in?
o Depends! A buyer of a stolen item may have no title and be forced to return property, unless the thief obtained the item through fraudulent sale, then the thief may have title and your purchase would be legit.
- What if I give it back?
o Is it damaged or was the rightful owner barred from using it?
* No
* Then no conversion
* Yes
* Then may be conversion
Privileges
Is consent given or granted?
- No, but
o External consent + an internal denial of consent = consent given (O’Brian v. Cunard S.S. Co.)
o Medical exceptions are valid, as long as no consent is able to be given or it is an emergency
- Yes, but
o Consent to one medical procedure does NOT give consent to a different one (Mohr v. Williams)
o Was under false pretenses, it’s NOT CONSENT (De May v. Roberts)
May I hit this guy in defense of myself?
- Yes, if: Reasonable belief that you are going to be harmed, and force used is reasonable
- No, if: Retaliation is not cool, verbal insults don’t count, not if force is unreasonable, not if easily able to retreat
- Third party damaged while attempting to defend oneself?
o Transfer of intent/privilege: May be protected if it fits into the yes category from above
May I hit this guy who is about to hit this other guy?
- Yes, if: Reasonable belief that (x) is going to be harmed, and force used is reasonable
- No, if: Retaliation, verbal insults, force unreasonable, able to retreat
- Mistakes?
o Two interpretations of privilege of third party and mistakes
* Into the shoes of the third party, only privileged to defend if that other person is or would be
* Broader latitude interpretation, that its okay if the mistake is reasonable.
May I hit/detain/tickle/splatter this guy who is about to steal my stuff?
- May not use deadly force to defend property, as human life is more precious than stuff (Katko v. Briney)
May I hit/detain/tickle/splatter this guy to get my stuff back that he stole?
- Generally, that is not okay (Hodgeden v. Hubbard)
o BUT it may be okay if you are right there and can get your stuff back without the use of too much force
o Merchants have a special interest in detaining and asking about customers reasonably suspected of stealing merchandise (Bonkowski v. Arlan’s Dep’t Store)
If something is done, normally tortuous, but for a necessary and compelling reason, is it okay?
- Yes, if a reasonable amount of force used to protect society or the civil government (Surocco v. Geary)
o MAY still be liable for economic damages, but not punitive (Vincent v. Lake Erie Transp. Co)
Is it Justified?
- A general term for something normally tortuous done for a reason that may be privileged. (Sindle v. NY Transit)
Negligence
Negligence in General
- What is required for a claim of negligence?
o Duty: duty to use reasonable care
* Reasonable Care under all circumstances
* Leaving an object out is negligent only if object is “intrinsically dangerous”
* “Reasonable Prudent Person” Standard of foreseeability
o Should have known and had reason to know
o Emergency situations have a lesser burden for reasonable care
* Disabled person?
o Less burdens, but still reasonable prudent given capabilities
* Children?
o Held to adult standard if driving a vehicle or engaging in other adult behavior
* Professional?
o Higher burden to act considering their professional expectations, considering:
* Training or specialized knowledge
* Is best judgment exercised
* Reasonable and ordinary care and diligence
* Foreseeable that it will result in harm
* Sudden and unforeseeable incapacity is excusable
* Medical Malpractice context: Must have informed consent, or doc is negligent
o Informed consent = personal interest (financial, for example) that affect doctor’s professional judgment and all material information to the surgery.
* Foreseeable the severity of any harm that may ensue
* Burden of precautions of eliminating or reducing risk of harm
* Not all risks need be eliminated, just severe, special or substantial areas of risk as is practical
o Formula for the proper level of care?
* Burden VERSUS Resulting Damage + Probability of Damage
o Breach: Failure to conform to standard of reasonable care
* Reasonable standards are determined by the commonplace, not the extraordinary unique situation
* Acts of God do not constitute breach of reasonable care
o Causation: connection between breach and damages
* Refer to Causation In Fact section
o Damage: actual loss to another
- How Negligent Is An Act?
o Degrees of care
* Care required by reasonable person varies according to the risk of damages involved
* Ultra dangerous activity such as explosives require extra care
* Common carrier has extra care standard
o Degrees of negligence
* Slight negligence is a failure to use great care
* Ordinary is a failure to use reasonable care
* Gross negligence is a failure to exercise slight care
* Willful, wanton and reckless conduct is extreme recklessness bordering on intentional
* Deliberate and intentional disregard for a known high degree of harm to another
Laws and Statutory Negligence (Negligence Per Se)
- Someone violates a law. Is that proof of negligence?
o Violation of a statute does constitute negligence per se if:
* Plaintiff is in the class of people protected by the statute
* Plaintiff is harmed by the kind of harm intended to be prevented
* Causation between violation of statute and Plaintiff’s harm
Proof of Negligence
- How much proof do you need?
o Need to have sufficient circumstantial (or more) evidence to show that
* Actual or constructive knowledge of a condition on the premises
* The condition posed unreasonable risk of harm
* Plaintiff did not exercise reasonable care to reduce or eliminate the risk
* Failure to use such care proximately caused injuries
o Cannot be purely speculative
* Burden on the Plaintiff to show negligence, but evidence may be circumstantial
Res Ipsa Loquitur – Proof by Virtue of Accident’s Occurrence
- How do you prove something is negligent by virtue of it having happened?
o Must be certain that the only possible result of an accident was negligence and fault of a Defendant
o Must prove
* There was an accident
* The thing that caused it was under the exclusive control of the defendant
* The accident would not have happened if the Defendant did not use ordinary care
o Res Ipsa Loquitur is sort of stupid and not used by courts often, generally
Causation in Fact
Sine Qua Non
- Negligence must have caused an injury for which recovery is sought
o Is a “but for” test: injury would have not happened but for defendant’s negligence
Proof of Causation
- How do you prove a negligent act caused a harm?
o Where the negligent action of a defendant
* Multiplies chance of accident or injury to plaintiff
* It is of a character naturally leading to its occurrence
o Does not matter if it may have happened without the negligence present
* But the simultaneous existence of negligence and damage is not sufficient – must have some proof of causation
Concurrent Causes
- Where separate acts of negligence that combine to cause a single injury
o Each tortfeasor is responsible for the entire result
o So a plaintiff may recover all damages by a single known defendant when cause is concurrent between a known and unknown tortfeasor
Problems in Determining Which Party Caused the Harm
- If two are negligent but a single caused a harm, and it is unknown which one is responsible
o Still responsible, and damages may be apportioned between them
- Proportionment strategy for similar situations?
o May be liable for market share for the harms caused in, say, a products liability case for injuries of unknown origin
Proximate or Legal Cause
What is Proximate Cause?
- A limit on liability, where causation is limited to causes which are so closely connected with the result, and are of sufficient significance that the law is justified in imposing liability
Unforeseeable Consequences
- Only liable for consequences of proximate cause, or are foreseeable and not remotely consequential
o Intervening acts may prevent liability for damages caused by negligence
* Must have traceable chain of causation between negligence and damage
o Must be reasonably foreseeable
- Pre-existing condition?
o May still be liable for aggravating a pre-existing condition
- Unforeseen severity?
o But if what is a otherwise trivial foreseeable damages, may not be liable for damage greater than what is foreseeable
Intervening Causes
- Breaks in the chain of causation
o May or may not be liable, depending on if that intervening act is reasonably foreseeable depending on the situation as caused by the Defendant’s negligence
* If extraordinary, not liable. If ordinary, liable.
* Needs to be really extraordinary and unforeseeable, for reals
- Harms to a rescuer?
o Rescue Doctrine says that there are the same burdens of proximate cause, to be determined by jury, but may be liable for harms to a rescuer.
- Liable for someone’s suicide?
o Only if the cause of the severe mental anguish is clearly and directly caused by tortuous act
Public Policy
- Effect of public policy in negligence claims?
o May be consideration given to causal chain despite lack of foreseeable consequences if there is a substantial policy interest or an interest in fairness
* Such as long term consequences of drug/medication stuff that would normally be unforeseeable
Damages
- Elements damages calculation
o Past physical and mental pain
o Future physical and mental pain
o Future medical expenses
o Loss of earning capacity
o Permanent disability and disfigurement
o Loss of consortium, community
o Separately, may also include punitive damages not resulting from the harm
- How are they determined exactly?
o There is leeway in awarding compensation, as many elements are essentially speculative
* Judge may use remittitur or additur or retrial if the amount is not reasonable
o Damages may be capped by statute
- What if the injury was avoidable?
o May not recover for injuries that may have been avoided by seeking medical treatment after being injured
- What if Defendant gets insurance/other compensation for injury?
o May still recover
Defenses
Plaintiff’s Conduct
Contributory Negligence
- Plaintiff’s duties that may provide defenses to liability
o If Plaintiff could’ve easily avoided injury to person/property with ordinary care, they can’t recover
* Also with preventative measures for damages to property, or medical care after injured, defendant not liable for additional issues stemming from what would essentially be the plaintiff’s negligence
- Comparing negligence between Defendant and Plaintiff
o Percentage reductions depending on amount plaintiff was at fault
o Some courts may use a complete bar if any contributory negligence, others use comparative calculations
Assumption of Risk
- Contracts may explicitly say “I assume risk of injury for x thing” (Exculpatory Clause)
o Usually valid, but must be unambiguous/clearly written
* Exceptions to risk assumption clause:
* Party protected by the clause intentionally causes harm or engages in reckless, wonton or gross negligence
* Adhesion contract (unequal bargaining power for an essential service)
* Public interest/policy
- Implied Risk?
o May be discretionary if there is room for argument
Joint Tortfeasors
Liability and Joinder Defendants
- Groups of individuals who are liable for a tortable harm
o Each is liable for the conduct of the other because “he has induced and encouraged the tort”
* AKA joint and several liability, where any party may be responsible for the entire damage
* BUT there can only be one recovery/satisfaction
Settlements
- Generally they are acceptable
o Although, some agreements that skew the trial process are not
* Such as Mary Carter agreements, in which the Plaintiff pay one Defendant to rat out their others and then pays that Defendant off.
Contribution and Indemnity (It can be a kind of defense)
- Someone accuses you of something, you can blame someone else for it.
- What about if parties have a common obligation to do something and there is negligent fault
o Must have a cause of action against the party from whom contribution is sought to indemnify them
o When good faith release is given to one of the parties, it will discharge them of all liability for contribution to any other tortfeasor
* Also, contributory settlements, or whatever. Idk. This part is confusing.
- What if the plaintiff is injured, and then again years later?
o Original defendant only liable for the original damage, not subsequent injury unless proximately caused by the original’s tortuous act
- What if the injury comes from negligence of two or more parties creates a single indivisible inury?
o Jointly and severly liable, despite no common duty, design or action
Apportionment of Damages
- Multiple parties responsible for different percentage of damage?
o May apportion damages among those, but injury must be proved by plaintiff
* In order to be actionable, damage must be proved.
Duty of Care
Failure to Act
- Generally, there is no duty to prevent the actions of others, to protect others, or to act
o Exceptions
* You caused it, you gotta fix it
* If there is actual knowledge of a risk, policy implications, and is under the scope of liability
* If it is an assumed responsibility
* Invitee or guest
o (refer to owner/occupier of land section)
* If there is some special relationship to either the one who needs to be controlled or the foreseeable victim
Negligent Infliction of Emotional Distress
- What do you need to have for emotional distress claim?
o Must be injury
* Generally needs physical injury or consequence or an independent basis for tort liability, unless mental disturbance is immediate and apparent
o Must be foreseeable that action will cause emotional disturbance.
* Factors:
* Plaintiff was physically near the scene of the accident
* Plaintiff observed the accident occur
* Plaintiff was closely related to the victim
Unborn Children
- Wrongful death claims for unborn babies?
o Can’t make them, because they must be born before having died, legally
* However, Infant plaintiff may recover medical expenses attributable to affliction due to tort relating to harms as an unborn child (wrongful birth)
* But can’t recover for emotional distress or an unhappy childhood.
Owners and Occupiers of Land
Outside the Premises
- Does responsibility exist for a landowner outside of their own land?
o Must not obstruct the use of public or other’s land
* But there is some latitude for something such as a tree falling outside of one’s land, as it is an unreasonable expectation to monitor all of the land constantly. Depends on all the circumstance.
Inside the Premises
Trespassers
- Duty to trespassers?
o No, trespasser assumes risk generally. Obligation may exist if owner discovers trespasser to make all reasonable effort to avoid injury to trespasser.
Licensees
- A licensee is like a social guest
o Duty: licensee takes the premises as he finds them, with a responsibility only to warn of hidden dangers of which the owner has actual knowledge, or what would otherwise be willful and wantonly injurious, duty to keep premises reasonably safe.
Invitees
- Invitee is one invited, such as a customer
o Owner is subject to liability for harms, but
* Invitee must be within the scope of invite
* Does not need to be an actual customer, may just be a window shopper or bathroom user
Persons Outside Established Categories
- Children
o Attractive Nuisance Doctrine: Owner is liable if
* He Knows children are likely to trespass
* He Has reason to know a situation is dangerous or possibly harmful to children
* Children do not know of the risk, or aren’t able to appreciate it
* Great utility to maintain the dangerous condition and high comparative burden to eliminate it
* He Fails to eliminate risk to children and injury occurs
- Privileged persons
o Public officials, such as fire fighters, may be treated differently, but it depends on the court
* Held to reasonable care, classified as invitees, licensees, etc.
Rejection or Merging of Categories
- Some criticize the categories and claim that all owners should just be held to reasonable care standard
Wrongful Death and Survival
Wrongful Death
- Defined: Statutes which provide that certain beneficiaries have a cause of action based on the loss caused to them by the death
o Damages include:
* Loss of financial support
* Loss of services
* Loss of society and companionship
* Funeral expenses
Survival
- Defined: A claim can survives death of a plaintiff
Vicarious Liability
Respondeat Superior
- General Doctrine: employer is responsible for employee while employee is in the scope of their employment
o Scope of employment is broadly defined except,
* Commute, generally, unless the risk of accident arises from or is related to their job
Independent Contractors
- Different than employers in liability
o Independent, so employer not liable, except
* Non-delegateable duty such as it is so essential a responsibility, or is inherently dangerous
Joint Enterprise
- Must be economic in nature, for a common purpose, equal rights of control, community interest, agreement among members of the group
o Does not extend to family ventures
Bailments
- Family car doctrine
o Owner is liable for others
* Alternative, is that all drivers are under the owner, provided they have permission
Imputed Contributory Negligence
- Plaintiff can recover from employer, unless the employer/liable one is the plaintiff
o May be barred if they can’t sue themselves, for example
Strict Liability
Animals
- Liability for those who keep animals
o Not liable for wild animals
o May be liable for non-indigenous populations they introduce
o Pets and other animals not strictly liable
* Unless the animal is known to be vicious, or is inherently dangerous (tiger, pit bull, etc.)
Abnormally Dangerous Activities
- What is an abnormally dangerous activity
o High risk of harm
o Likelihood that the harm that will result is great
o Inability to eliminate risk
o Not a commonplace activity
o Appropriateness of the location
o Extent to which the value of it is outweighed by the danger involved in it
Limitations on Strict Liability
- Aren’t strictly liable if
o Act of got releases something from your land that you would normally be liable for
Outline #4 - General Torts Notes (file in .doc format here, hosted on Dropbox)
Readings NotesTextbook: Torts Casebook
Chapter 1: Development of Liability Based Upon Fault
- What does tort mean?
o Comes from Latin meaning tortus, which means twisted, and the French word Tort which means injury or wrong
o Is a civil wrong, other than a breach of contract, for which the law provides a remedy
- Modern Tort Law
o Increasing in the public sphere
* Medical malpractice, injuries due to fault, etc.
- Purposes of tort law
o To provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands”
o To deter wrongful conduct
o To encourage socially responsible behavior
o To restore injured parties to their original condition, insofar as the law is able, by compensating them for their injury
o To vindicate individual rights of redress
- Historical Origins
o Gradual development, difficult to pin down
o Lots of British legal type stuff, origins have to do with that, I guess
* Writ of trespass
* Originally was the punishment of a crime, but enveloped satisfaction to the injured party
o Trespass v. Case
* Trespass lies only for direct and forcible injuries, while case lies for other tangible injuries to person or property
- Cases to Brief
o Hulle v. Orynge (The Case of Thorns) - 1466
* Dude damaged another’s house on accident while building his house
* Dude was liable for damages to the house
o Weaver v. Ward – 1616
* P brought action of trespass of assault and battery against D
* Accidental wounding during training exercise, both were soldiers
* Differentiation between “with a felonious mind” or accidental
* Noted that accidental isn’t necessarily liable in this case
o Brown v. Kendall – 1850
* Two dogs fighting, D tried to separate them with a stick, but accidentally hit P in the eye and injured him
* Question of if a party’s remedy should be sought in an action of the case, or of trespass
* If hitting the plaintiff was unintentional, and done in doing a lawful act, then the defendant was not liable, unless it was done without due care
o Cohen v. Petty - 1933
* D driver P passenger, D drove reckless and wrecked and caused P injury
* D fainted while driving the automobile
* So, not chargeable with negligence as the illness was sudden and immediate
o Spano v. Perini Corp. - 1969
* Is negligence necessary for damages?
* Were the vibrations, not the debris
* Absolute liability for blasting/demolitions?
* Nope, if you take all care and injure yourself, not liable for damages, with balances of rights b/w landowner and their neighbors to improve property without hurting others…
Chapter 2: Intentional Interference With Person or Property
1. Intent
o Garrat v. Dailey
* D = five years old infant
* D pulled out the chair from under P and sued
* Found that
* He did not have any willful or unlawful purpose in his actions
* He did not have any intent to injure the plaintiff
* Did not have any intent to bring about any unauthorized or offensive contact with her person
o The placement of intent in tort law
* Act must be done with the purpose of causing the contact, etc., or with knowledge on the part of the actor that such contact, etc. is substantially certain to be produced
o Issue of age
* Not a factor in tort
o Spivey v. Battaglia
* P and D employees of a company
* D put arm around P, causing damages to P’s neck, nerves, etc.
* Suit for Negligence and A&B
* Neg = unintentional, A&B = intentional, so can’t both be true
* Incident is more Neg, without “substantial certainty” to cause harm
* Reversed lower decision of summary judgment for the P – D couldn’t have been “reasonably certain” of the harm that was caused.
o Ranson v. Kitner
* Dog killed by D
* D thought it was a wolf
* Simple mistake
* But, liable for the value of the dog
o McGuire v. Almy
* A&B case (assault and battery)
* Should the judge have directed a verdict in the case?
* D=crazy, P=nurse
* Is crazyperson liable for torts?
* Is it intentional or not?
o Is that person capable of intent to harm?
o Jury found that it was so, and so it was tortuous and able to sue for such
o Talmage v. Smith
* D had property with sheds
* Kids on his roofs, may or may not have seen the P
* D threw stick at kids.
* P was blinded by the stick.
* Intent to hit the kid or intend to frighten?
* Is it a use of reasonable force?
* Was a fair statement of law, but the result based on jury findings
* The fact that the result was injury other than intended doesn’t matter, D was responsible
2. Battery
o Cole v. Turner
* Least touching someone in anger is battery, accidental brush is not, violence is
o Wallace v. Rosen - 2002
* Instructor accused of battery, claimed it was in the purpose of protecting the kids during a fire drill.
- Restatement (Second) of Torts (1965)
o Battery: Harmful Contact
* Is subject to liability if
* Intends to cause harm or offensive contact, or imminent apprehension of such a contact
* Harmful contact directly or indirectly results
o Battery: Offensive Contact
* 1. An actor is subject to liability if
* a. he acts intending to cause harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact
* b. an offensive contact with the person of the other directly or indirectly results
* 2. An act which is not done with the intention stated in Subsection does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.
- Fisher v. Carrousel Motor Hotel, Inc.
o P is a mathematician employed by NASA attending a conference at D’s hotel.
o D employee took a plate from P’s hand and said that “Negro could not be served in the club”
* Court found it constituted battery due to the proximity of the plate to P’s body, was with hostile intent.
3. Assault
- I de S et ux. V. W de S (1348)
o Wife assaulted but not actually hit.
o First account of battery
- Western Union Telegraph Co. v. Hill
o Assault case
o Western union sexual harassment, tried to grab the wife of Hill
* Sapp of Western Union did not act within the scope of his employment, and tried to grab Hill, was guilty
4. False Imprisonment
- Big Town Nursing Home v. Newman (1970)
o Initial judgment for P
o D appealed
o Sued for actual and exemplary damages stemming from false imprisonment
o Newman = retired person, living in Home
* Newman was told he would not be held at Home against his will, but was not allowed to use phone, leave, or take visitors, held forcibly at Home
o Home acted in complete disregard of Newman’s rights
* Amount of damages was excessive, but confirmed that it was a case of false imprisonment
- Parvi v. City of Kingston (1977)
o P trying to calm down argument between others.
o P taken out of town and left there by police/D
* P was struck by a car while returning
o False imprisonment?
* Reversed. Did constitute false imprisonment
* Does not need to be conscious of imprisonment at the time in order for it to be called false imprisonment
- Hardy v. LaBelle’s Distributing Co. (1983)
o D employer, P employee
* P was detained in a back room and questioned about stealing a watch, which was never proved
* P sued for false imprisonment
o Issues
* Whether the evidence is sufficient to support the verdict
* If the District court erred in the issuance of its instructions
o Rule
* Restraint of an individual against their will and unlawfulness of such restraint
* P was not forced to stay against her will, but wanted in order to clarify the situation
o Favor of Defendants
- Enright v. Groves (1977)
o Claim of false imprisonment
o Groves/D was ununiformed officer
* P taken forcefully without charges to police station. Later convicted of ordinance violation for having her dog loose.
* D states probably cause, and force was permissible in act of arresting the P.
o Affirmed in favor of P
* Officer never explained why P was being arrested, and officer had no reason to arrest
- Whittaker v. Sandford
o P attendees, D leader of religious sect
o P attempted to abandon sect and was detained by D
o Brought action for false imprisonment after being released with the help of a local sheriff.
o Won in court, defendant appealed
o Ruling
* It was false imprisonment
* The prison, or barrier, was the sea on the yacht
5. Intentional Infliction of Emotional Distress
- State Rubbish Collectors Ass’n v. Siliznoff, 1952
o P sued to collect on certain notes
o D sued for emotional distress, threats of being beat up by P
- Slocum v. Food Fair Stores of Florida, 1958
o P sought damages for mental suffering and emotional distress
* Heart attack and whatnot from insulting language by the D
o Rule
* “Content only intended to cause emotional distress only”
* Verbal stuff was not a tort in itself
- Harris v. Jones 1977
o P employee of GM, D superior at GM
o D ridiculed P for speech impediment
o Conclusion
* Outrageous conduct causing severe emotional distress
* Intentionally or recklessly… causes severe emotional distress…and for resulting bodily harm
* Four elements for liability for intentional infliction of emotional distress
* Intentional or reckless
* Extreme and outrageous
* Causal connection between conduct and distress
* Distress must be severe
* Ruled in favor of D
* Wasn’t that bad, the Judge says to be ruled as “severe”
- Taylor v. Vallelunga 1959
o P says he was beat up by D
o 2nd count of tort, P says she was traumatized by seeing the beating
* Severe fright and emotional distress
o Ruling
* Failure for 2nd count to meet requirements of intentional infliction of emotional distress
* Defendant did not know that the daughter was there, or would view the attack, and the emotional distress was not purposefully or maliciously aimed at her
6. Trespass to Land
- Dougerty v. Stepp 1835
o Proof for act of trespass was that his neighbor claimed it for his own, but didn’t do anything on his land except survey it
* Ruling that it wasn’t a trespass, and that damages should be dependent on what was done on the land as an act of trespass
o Court on appeal says that if you trespass, that is harm
* All unlawful entries are entitled to nominal damages
- Herrin v. Sutherland 1925
o D hunting for birds, shot over P’s land
o Nominal damages ordered in trial court
o Judgment affirmed for nominal damages at least for trespass
- Rogers v. Board of Road Com’rs for Kent County 1947
o P damages for death of husband caused by trespass of D
* Trespass consists on leaving a stake on the land
o D negligence of county commissioners
o Trial dismissed case, P appealed
* Guy was killed on a snow fence, mower accident.
o Ruling
* Restatement says “failure to remove a thing placed on the land pursuant to a license or other privilege” is trespass
* Case remanded for further proceedings
7. Trespass to Chattels
- Glidden v. Szybiak (1949)
o Procedural Posture
* Defendants appealed the judgment of the trial court, Hillsborough County (New Hampshire), holding them liable for plaintiff's injury caused by defendants' dog.
o Overview
* Defendants' dog injured plaintiff. Defendants contended that plaintiff was engaged in the commission of a trespass at the time of her injury and was therefore, barred from recovery under the statute. The court held that no claim was advanced at the trial that the dog was in any way injured by the conduct of plaintiff. Consequently she could not be held liable for a trespass to the dog that would prevent her recovery under the statute here invoked. Additionally, the court found that only one of the defendants owned the dog. The judgment against the defendant non-owner was set aside, as she was not in possession of the dog. Possession implied the exercise of care, custody or control of the dog by one whom though not the owner assumes to act in his stead. Here the actual care, custody and control of the dog was in defendant owner.
o Outcome
* The judgment against the defendant owner was affirmed, as she alone was responsible for the conduct of the dog. However, the judgment against the defendant non-owner was set aside, as she was not in possession of the dog at the time of the injury.
- Compuserve v. Cyber Promotions (1997)
o Procedural Posture
* Plaintiff, internet service provider, was granted a temporary restraining order that enjoined defendant advertising company from using the provider's services to send or receive electronic mail (e-mail) and from falsely representing that the e-mail was generated by the provider. The provider then sought a preliminary injunction to enjoin the company from sending unsolicited e-mail advertisements to its customers.
o Overview
* The internet service provider contended that they were entitled to a preliminary injunction enjoining the advertising company from sending unsolicited e-mail to its customers on the grounds that the company's transmission of e-mail to the provider's computer equipment constituted an actionable tort. The court held that because the provider had demanded that the company stop sending e-mail to its customers, and the company deliberately evaded the providers' efforts to protect its computer equipment from such use, the provider had an viable claim against the company for trespass to personal property and was entitled to injunctive relief to protect its property. In so holding, the court found that (1) electronic signals generated and sent by computer were sufficiently physically tangible to support a trespass claim; (2) the value of the equipment used by the provider was diminished as a result of the company's conduct; (3) the provider was not a public utility and thus the company enjoyed no special privilege to use the provider's proprietary computer systems; and (4) the company had adequate alternative means of communication available to it.
o Outcome
* The court extended the original temporary restraining order until a final judgment was entered. The court further granted the internet service provider's request for a preliminary injunction enjoining the advertising company from sending unsolicited electronic mail to the provider's customers.
8. Conversion
- (A) Nature of the Tort
o Pearson v. Dodd (1969)
* Facts
* Dude had his misdeeds made public
* Sued for invasion of privacy, conversion
* What is conversion
o Took something, converted via interference, reduced or removed the value of a property
* The wrongful possession or disposition of another's property as if it were one's own; an act or series of acts of willful interference, without lawful justification, with an item of property in a manner inconsistent with another's right, whereby that other person is deprived of the use and possession of the property. [Cases: Trover and Conversion ? 1.] — convert, vb. — conversionary, adj.
- Restatement § 222A. What Constitutes Conversion
o (1) Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.
o (2) In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:
* (a) the extent and duration of the actor's exercise of dominion or control;
* (b) the actor's intent to assert a right in fact inconsistent with the other's right of control;
* (c) the actor's good faith;
* (d) the extent and duration of the resulting interference with the other's right of control;
* (e) the harm done to the chattel;
* (f) the inconvenience and expense caused to the other.
(To Chapter 3) 2. Self-Defense
- Existence of privilege
o Reasonable force to defend himself against threatened battery on the part of another.
- Retaliation
o Privilege is not recognized for retaliation
- Reasonable Belief
o Privilege when one believes that force is necessary to protect himself against battery
- Provocation
o Verbal insults and provocation does not justify the exercise of self-defense
- Amount of Force
o Must be or appear reasonably necessary
- Retreat
o Defendant must retreat if he can do so without increasing his danger, rather than standing his ground and using deadly force
- Injury to a third Party
o Defending against A, injures B unintentionally, then the defendant is not liable
3. Defense of Others
- Nature of Privilege
o Is recognized as something similar to self defense
4. Defense of Property
- Katko v. Briney (1971)
o Question
* If an owner may protect personal property in an unoccupied boarded-up farm house against trespassers and thieves by a spring gun capable of inflicting death or serious injury.
o Facts
* Dude breaking into abandoned farmhouse had his leg blown off by a shotgun trap.
* Dude sued owners for damages
o Ruling
* Wasn’t in self defense and was an unreasonable use of force, so the D landowner was liable for damages to the P thief.
5. Recovery of Property
- Hodgeden v. Hubbard (1846)
o Facts
* P buyer of stove, D seller warehouse
* D found P to have bad credit and P had misrepresented himself.
* D took stove away from P by force and violence, P drew a knife and was held down by D as the stove was taken away
o Ruling
* D not justified in use of force to recover property, gave nominal damages to the P.
- Bonkowski v. Arlan’s Department Store (1968)
o Facts
* P, wife and husband arrested by D, mall cop
* D accused P of stealing based on 3rd party claim
* P presented receipts, D left
* P brought claim for emotional distress, slander, false arrest
o Ruling
* Dismissed due to lack of evidence and privilege of the D in protecting its property
6. Necessity
- Surocco v. Geary (1853)
o P to recover damages for D exploding P’s house and property
o D did so as a necessity to stop a fire burning down the area
- Rule
o If necessary to protect society or the civil government, it’s cool
- Ruling
o For the D
- Vincent v. Lake Erie Trasp. Co. 1910
o P dock owner, D unloading ship on P’s dock
o Damages to dock for 500 for leaving ship tied to dock during a storm
o D damaged dock.
- Ruling
o P entitled to damages for property
* If you use private property, you are entitled to pay for damages to other person’s property in preservation of your own.
Privileges not assigned
- Arrest
- Discipline
Lecture Notes
Development of Liability Based upon Fault
- General Stuff
o Tort actions
* Big Slice of Negligence
* Strict liability don’t prove fault, is uncommon
* Misrepresentation
* Defamation
* Invasion of privacy
* Interference with contracts and the Judicial process
* Civil rights actions and other torts
o Origins
* To prevent breach of peace and settle disagreements
* To deter conduct that exposes people to harm
* Protections for some rules
* Like if you try to save a kid, can be protected from liability
Liability Based on Fault
* Definitions
* Trespass
o Origins in early common law
o Refers to damages nowadays
* Trespass on the case
o Damages, indirect harms, negligence
o Antiquated concepts
* Current divisions
* Intentional/unintentional in modern era
* Damages
o Remedy for harms, money value to correct the trespass
* Types of Damages
o Compensatory damages
* To correct or make whole
o Nominal damages
* Don’t have to show actual harm, yet is a minimal damage to show harm has occurred
o Punitive damages
* Punishment to discourage wrong actions
* Cases
* Weaver
o Unintentional, accidental, in the course of lawful conduct
* D must prove that he was without fault
* Like if a child runs out and gets hit by a car, must not be anticipatable
* Brown v. Kindall
o Jury instructions won’t correct
* Said if not mandated, should be liable
* No fault if both act reasonably
* Intentional v. voluntary act
* Is not intentional, so, not liable
o What if neither exercising care?
* Contributory negligence
* Largely abandoned, means defense against D’s negligence, both at fault then negligence
* Cohen
o Not forseeable, unforwarned
o Sudden, immediate
o Necessary to avoid for the accident
* Not liable
* Spano v. Perini
o Absolute or strict liability
* Says it applies to all liability, to dangerous acts
* Boundaries for strict liability?
* All things can be Strict liability because many things are dangerous
o Not a matter of common usage
o One is exposing others to an unusual risk
* Garrat v. Daily
o Needed substantial certainty and purpose to show intent that it was a tortuous act
o Tests for intent
* equal purpose, substantial certainty
o Criticism of substantial certainty test
* How to gain/show “substantial” certainty?
* Spivey v. Battalia
o Negligence, as injury was unforeseeable injury
o Intent was “offensive bodily contact”
* Question is what the damages are for incident
o Statute of limitations
* It’s a big deal
o Distinction between assault and battery
* Assault
* Apprehension of appending battery
* Battery
* Physical harm or unwanted undesired contact
o Privilege
* Such as self defense for an impending assault
* Employers responsible for employee negligence, usually
o Proximate Cause
* Tracing the consequences of an act further with intentional over
* Not very true in practice
o Ranson v. Kitmer
* If a mistake, still liable for intent
o McGuire v. Almy
* Just because crazy, still liable (in torts)
* Everyone would take the crazy defense
* Intoxication
* Also not an excuse, generally
o Talmage v. Smith
* Threw a stick, liable?
* Principal of transferable intent
o Transfer can go to all many intentional torts
o Restatement of torts disagrees
* Or at least gets a floor on transfer of intent
* Privilege of intent both transfer, with privilege and liability
- Battery
o Cole v. Turner
* Historical
o Wallace v. Rosen
* Harmful contact, but was harmful touching?
* Privilege in defense of student
* May not increase to standard of battery
* Issue with battery instead
o Reckless? Battery? Conflict with intent?
o Fisher v. Carrousel
* Racial insult, uses battery standard
* Case is snatching act
o Close connection, attack on a thing is equal to an attack on a person
* Fits battery standard
- Assault
o I de S et ux
* Wife nearly hit, wasn’t, still entitled to tort
* 1st case of assault and not battery
o West Un. V. Hill
* Guy propositioned women
* Tried to grab
* Apprehension of unpermitted bodily contact
o “reasonable” apprehension
o of an “immanent battery”
* Emotional distress?
False Imprisonment
- Big Town
o Jury ruled for P
* Judge decreased payout on appeal
o Confinement v. Obstruciton
* Obstruction is less bad
* Needs more than obstruction
* No clear definition for what is/isn’t false imprisonment
* Reasonable means of escape
o Like, crawling through a sewage pipe is not reasonable
- Parvi v. Kingston
o Matter if actual harm, or knowledge of invasion of protected interest?
* No. Doesn’t need to know was imprisoned or attacked in order for it to be FI
* Loss of freedom, awareness, at the time is important but not necessary to be aware later
* Avoids frivolous cases
* Some disagreement
* Folks sometimes say that awareness is necessary
- Hardy v. LaBelle
o Was not physically prevented from leaving
* Not imprisoned, as was able to leave and willing to stay
o May be imprisoned if valuable possessions were taken, etc.
* Often FI is a jury issue with many variables
- Enright v. Groves
o Cop detained lady, took to jail for not producing DL
* Convicted of leash law violation for dog
* Lady sued for FI
* Cop had no reason to insist to see DL, or arrest for legit reason
- Whittaker v. Sanford
o No physical detainment but the sea acts as a barrier
* Quickly as FI
o Issue
* Consent to confinement across the ocean
* Legit
o Dangerous to let out in middle of ocean, had prior consent
* But failure to release from legit confinement is FI
Intentional Infliction of Emotional Distress
- Garbage Ass v. Slitz
o Ass sues for non-payment
o Slitz says that was threatened and sued for emotional distress
* Before this case in California, not easy to get ED
* Was not common unless attached to another damages case of action
* Is in the essence of Assault claims
o 1st Restatement’s perspective
* Needed physical or other components, more direct
* Difficult to measure
* Concern over the number of possible claims
o Need some cause for it, legit
* Some situations are serious enough to bring tort for ED
o Cause of Action in ED
* Direct cause of ED in actions of the defense
* Is how awful the action is, or likely to cause ED
* Substantial certainty or negligence/recklessness
* Involves severe ED
o Jury would have to find ED link to physical harm with ED
* Undesirable
* Is a medical determination
* Silly things coming as a result of ‘being nervous’
* Court rejects restatement on this
- Slocum v. Foods
o Concern of legit or non-legit claims for ED
o P told she stinks, rudely
o P has heart attack
o P sues for damages, ED
o Court says
* Must believe that intent was that severe emotional distress
* Severe emotional distress and intent and reckless
- Harras v. Jones
o Hinges on Extreme and Outrageous argument
* Preexisting case of crazy made wore, takes away from the extreme and outrageous claim
o How 2 measure extreme and outrageous
* Not precise, but is very bad behavior
* Factor’s test to find ED
- Need for a standard that holds the most serious while avoiding the most trivial
o Most serious cases may have two qualifications
* Cases where someone suffers an extreme atypical crippling distress
* Behavior must be extreme and outrageous, or is reckless
* Is repetitive, is from a person in power, is of a known sensitivity, is done regardless of asking for it to stop, contextual permissibility
* Causation
* Intent or reckless behavior
o No clear bright line due to inherent vagueness of the key terms
* Extreme, outrageous, everyday, etc.
- Harris v. Jones
o Why didn’t establish severe emotional distress?
* Was an existing condition already
* Didn’t regularly visit the psychiatrist, or seem like it was an extreme level of emotional distress
- Taylor v. Vallelunga (1959)
o P did not allege that the D knew that she was even there
* P has some need to show or allege that the D had some measure of substantial intent or belief that emotional harm was there
* Therefore, the court said that the P needs that and did not proceed with this case
- Notes and Questions
o Footnote 4, Knierim v. Izzo
* Threat carried out outside of the presence of the wife
* Threat was to kill the lady’s husband
* Court still ruled for P as it was the intent to cause the wife emotional distress, despite her not being there when the threat was made.
o Schurk v. Christensen
* Mother of five year old recovered against babysitter molester
* Permitted to recover
* Severe distress made
* Usually, though, P must be present and the harm directed
Trespass to Land
- Dougherty v. Stepp
o Who’s right are we protecting
* The person entitled to immediate possession
* Landowner or lease holder
* Entitled to nominal interest
o Principal of nuisance
* Damn kids on my lawn
* Must find a way to balance both parties reasonable interest
- Dougherty v. Stepp
o Physical invasion question
* A person walking across is physical trespass to land, which was required in old timy common law
* But now, in some circumstances, odors, gasses, etc are also, but they didn’t use to be considered “Trespass to land”
- Herrin v. Sutherland
o Guy hunting ducks over a dude’s land
o Shot over the dude’s land
* Is it trespass?
o Yes
* Noise issue, the physical shot going over the land
* Is mostly a nuisance issue, annoying the cows
o How much airspace do you own?
* Cannot be everything, with airplane traffic and etc.
* Is usually about to the length of the top of your building or so
* “The immediate reaches above the land”
* Some exceptions with commercial landings, (questions of privledge)
o Underneath the ground?
* Some, but is taken over by a special field of law relating to mineral, oil and gas rights
- Rogers v. Board of Road Com’rs for Kent County
o Initially
* Was no trespass, as the stake was privileged according to agreement
o Winter came
* Stakes were not removed as they should have been, and it became trespass because it was on their land without cause or permission
o Extended law beyond trespass on entry
* Trespass ab initio
* After period of consent passes, you may have trespass
o Problem
* Trespass is an intentional tort
* Leaving the fencepost was unintentional, however, which makes the ruling of this case questionable.
* IS more of a case of negligence
- Footnote
o Consequences of trespass
* If intentional, consequences of the trespass will be extended further.
* If negligence, not as much
* On the other hand, usually negligence is traced pretty far.
Trespass to Chattels
- Glidden v. Szybiak (1949)
o Dog bites 4 year old girl
* No trespass to the dog as the dog was not damaged
* Pain not factored in, as it is “chattel”
o Difference between chattles and land trespass?
* Chattel is movable and would place undue burden on folks, bring frivolous suits where there is no damage but unintentional trespass
* Like picking up the wrong book or brushing by a person’s car in a parking lot
o Would need damage to be tortuous
- Compuserve v. Cyber inc. (1997)
o Using service despite being told not to.
o Damage?
* Was losing customers due to the spam emails
o Trespass?
* Yes, as electronic stuff was going through their computers and their property, and it served no good reason
* They even did it despite countervailing efforts of the P
o Ruling
* Plaintiff needed some kind of protection from this trespass.
o Question
* What about private people?
* No, there really isn’t any harm, and there would be a flood of litigation if there was a tort remedy for SPAM
* But a virus?
* Yes, if they have damaged your computer and you can identify them, and they have the money to pay you, you can bring a personal cause of action for any real harms caused.
- Pearson v. Dodd (1969)
-
- Conversion
o What is the value of the car before the conversion/possession
* “You break it, you buy it”
o A long history
* Many changes through time
o Today?
* Modern cause of action
* If an object is taken and converted for their own use, unlawfully
o How does conversion happen?
* Zaslow v. Kroenert
* Dispute over who owns a house, P leaves, D changes locks, D puts P’s furniture in a warehouse, and who owns the right to the house?
* Was there conversion of the furniture that had been moved out
o No on appeal, as it was not a serious enough interference, was a temporary displacement
o Hypo
* Warehouse burns down while furniture wasn’t supposed to be there, all else equal, does that liability go to the taker or the owner?
* Because of the intervening act, the value was taken, and so yeah, it’s a conversion.
o How long, about?
* 35 minutes, depending on the context and the owners need for the object, or dependency on that object
o Outlined in § 222A
* Importance of factors depend on the context, and are weighed differently
* It’s a super subjective judgment :(
- Chattel Conversion
o How do you convert something
* IF it is damaged, altered, use is taken from owner, etc.
* THEN may be converted
- The Effect of good faith
o If it’s a mistake, may still be liable
* Is generally not a defense
o A few situations where adjustments are made
* Commercial convenience factor
* If no suspicious behavior, and is common practice, may not be liable
o Bone Fide purchaser problem
* Dude takes a book, sells it to someone else
* Cannot get good title from a thief, therefore, you have to return it to the original owner even if you paid for it.
- Necessity of Demand, Return of Chattel
o Do not need to demand back if you want conversion
* If it’s no longer wanted and conversion is complete, can bring tort
* Some states necessitate a demand to bring action
o Must chattel be returned?
* What if it is refused upon the taker offering it back?
* Even if it’s still in pristine condition?
o Cannot force someone to take something back
* Exception, is that the court in its discretion may force you to take it back and limit you to trespass damages
o Usually only if a thing is taken innocently will it need to be taken back, or won’t qualify as conversion in this situation.
- Note
o Can force someone to buy, but not to sell
* Otherwise, dude can just scratch something that the owner won’t sell if he want’s to buy it, and claim conversion to his advantage
- What may be converted?
o Something like promissory notes may have the value attached instead of just the value of the piece of paper that may have been taken
* Or such as taking a key to a car, may qualify as conversion of the car and not merely the key.
o Intangibles like goodwill?
* No, there are other remedies that are better suited, although there isn’t anything clearly preventing that route under the law
- Who may Maintain the Action
o Usually the one’s who’s immediate rights have been taken
New Chapter 3 : Privileges
- 1. Consent
o O’Brian v. Cunard SS Co. (1891)
* Was vaccinated against the lady’s wants
* Kind of, she didn’t say anything, but she stood in line and took the shot, so she wasn’t forced, there were external manifestations of acceptance and no external refusal.
* Vaccinations are beneficial too, so, it’s like, come on.
o Hackbart v. Cincinnati Bengals (1979)
* Dude got hurt at football
* Injury ended his career
* Was not during the normal course of the game, was after a play
* The point?
* Is inherently violent game that was consented to
* Court may not determine it as consent, must be remanded to jury as it was not during the normal course of the game and may not have been consented to, and it was against the rules of the game
o Just if it’s a violation of the rules doesn’t make it tortuous, unintentional violations would exceed limits and ruin the game
* How then do they determine consent in a context like this?
* Customs of the game, what normally happens, cultural acceptance or norms, etc.
* What do the players accept as the permissible boundaries?
* May want to err on the side of consent having been offered.
* If there is a custom or practice, it privileges people to act a certain way
o Unless a proper notice is given on an individual or group thing.
o Mohr v. Williams (1905)
* P patient D doctor
* Agreed operation on one ear, but operated on the other one unexpectedly
* Consent was not given, but it was to fix a disease discovered during the process of the medical procedure
* Is it battery because she did not consent?
* Yes.
* But what about the fact that it was beneficial?
* Does not affect the claim of battery, but it may affect damages calculation
* Exceptions?
* If patient is unable to give consent, or if there is a risk of serious bodily harm, or if a reasonable person would consent, and if the doctor has no reason to believe that the patient would not consent.
o Mostly applies to cases of emergencies where medical procedures must be performed without much notice
o If a Child
* Must have consent from parents, but if a parent says no, like in a religious context, then you can take it to a judge and may be able to grant the exception to save a life over violating the parents’ power to exercise control over their child.
o De May v. Roberts
* Pregnant lady, doctor and assistant
* Found out that he was not a doctor’s assistant and was a single unmarried young man
* P sued and was granted that he fraudulently made her believe that he defrauded her and unlawfully laid his hands on her
o (seems bullshitty)
* De May didn’t say anything deceptive, so where is the deception?
* Mores stated that it was offensive for such a thing, and the lady was entitled to her privacy
o Doctor should have understood this, and that they would have thought he was qualified to assist with the birth.
* The point?
* Can have consent, but if it is obtained through deception then it may still be tortuous
- Consent to a criminal act
o Court does not wish to reward a criminal act
* Deterrence
o IF both are criminal actors
* Generally, just consider if consent, then consent
* Not a factor of the criminal activity when it’s mutual
o Boxing hypothetical
* Consent for injury
* Illegal match?
o It’s consensual, so injury may not,
* Legal match with regulations that are ignored?
o May affect the law differently, and increase liability for what had been thought of as consensual
* Because it’s not a fully informed consent
- Conversion
o What is the value of the car before the conversion/possession
* “You break it, you buy it”
o A long history
* Many changes through time
o Today?
* Modern cause of action
* If an object is taken and converted for their own use, unlawfully
o How does conversion happen?
* Zaslow v. Kroenert
* Dispute over who owns a house, P leaves, D changes locks, D puts P’s furniture in a warehouse, and who owns the right to the house?
* Was there conversion of the furniture that had been moved out
o No on appeal, as it was not a serious enough interference, was a temporary displacement
o Hypo
* Warehouse burns down while furniture wasn’t supposed to be there, all else equal, does that liability go to the taker or the owner?
* Because of the intervening act, the value was taken, and so yeah, it’s a conversion.
o How long, about?
* 35 minutes, depending on the context and the owners need for the object, or dependency on that object
o Outlined in § 222A
* Importance of factors depend on the context, and are weighed differently
* It’s a super subjective judgment :(
- Chattel Conversion
o How do you convert something
* IF it is damaged, altered, use is taken from owner, etc.
* THEN may be converted
- The Effect of good faith
o If it’s a mistake, may still be liable
* Is generally not a defense
o A few situations where adjustments are made
* Commercial convenience factor
* If no suspicious behavior, and is common practice, may not be liable
o Bone Fide purchaser problem
* Dude takes a book, sells it to someone else
* Cannot get good title from a thief, therefore, you have to return it to the original owner even if you paid for it.
- Necessity of Demand, Return of Chattel
o Do not need to demand back if you want conversion
* If it’s no longer wanted and conversion is complete, can bring tort
* Some states necessitate a demand to bring action
o Must chattel be returned?
* What if it is refused upon the taker offering it back?
* Even if it’s still in pristine condition?
o Cannot force someone to take something back
* Exception, is that the court in its discretion may force you to take it back and limit you to trespass damages
o Usually only if a thing is taken innocently will it need to be taken back, or won’t qualify as conversion in this situation.
- Note
o Can force someone to buy, but not to sell
* Otherwise, dude can just scratch something that the owner won’t sell if he want’s to buy it, and claim conversion to his advantage
- What may be converted?
o Something like promissory notes may have the value attached instead of just the value of the piece of paper that may have been taken
* Or such as taking a key to a car, may qualify as conversion of the car and not merely the key.
o Intangibles like goodwill?
* No, there are other remedies that are better suited, although there isn’t anything clearly preventing that route under the law
- Who may Maintain the Action
o Usually the one’s who’s immediate rights have been taken
Moving on
New Chapter 3 : Privileges
1. Consent
o O’Brian v. Cunard SS Co. (1891)
* Was vaccinated against the lady’s wants
* Kind of, she didn’t say anything, but she stood in line and took the shot, so she wasn’t forced, there were external manifestations of acceptance and no external refusal.
* Vaccinations are beneficial too, so, it’s like, come on.
o Hackbart v. Cincinnati Bengals (1979)
* Dude got hurt at football
* Injury ended his career
* Was not during the normal course of the game, was after a play
* The point?
* Is inherently violent game that was consented to
* Court may not determine it as consent, must be remanded to jury as it was not during the normal course of the game and may not have been consented to, and it was against the rules of the game
o Just if it’s a violation of the rules doesn’t make it tortuous, unintentional violations would exceed limits and ruin the game
* How then do they determine consent in a context like this?
* Customs of the game, what normally happens, cultural acceptance or norms, etc.
* What do the players accept as the permissible boundaries?
* May want to err on the side of consent having been offered.
* If there is a custom or practice, it privileges people to act a certain way
o Unless a proper notice is given on an individual or group thing.
o Mohr v. Williams (1905)
* P patient D doctor
* Agreed operation on one ear, but operated on the other one unexpectedly
* Consent was not given, but it was to fix a disease discovered during the process of the medical procedure
* Is it battery because she did not consent?
* Yes.
* But what about the fact that it was beneficial?
* Does not affect the claim of battery, but it may affect damages calculation
* Exceptions?
* If patient is unable to give consent, or if there is a risk of serious bodily harm, or if a reasonable person would consent, and if the doctor has no reason to believe that the patient would not consent.
o Mostly applies to cases of emergencies where medical procedures must be performed without much notice
o If a Child
* Must have consent from parents, but if a parent says no, like in a religious context, then you can take it to a judge and may be able to grant the exception to save a life over violating the parents’ power to exercise control over their child.
o De May v. Roberts
* Pregnant lady, doctor and assistant
* Found out that he was not a doctor’s assistant and was a single unmarried young man
* P sued and was granted that he fraudulently made her believe that he defrauded her and unlawfully laid his hands on her
o (seems bullshitty)
* De May didn’t say anything deceptive, so where is the deception?
* Mores stated that it was offensive for such a thing, and the lady was entitled to her privacy
o Doctor should have understood this, and that they would have thought he was qualified to assist with the birth.
* The point?
* Can have consent, but if it is obtained through deception then it may still be tortuous
- Consent to a criminal act
o Court does not wish to reward a criminal act
* Deterrence
o IF both are criminal actors
* Generally, just consider if consent, then consent
* Not a factor of the criminal activity when it’s mutual
o Boxing hypothetical
* Consent for injury
* Illegal match?
o It’s consensual, so injury may not,
* Legal match with regulations that are ignored?
o May affect the law differently, and increase liability for what had been thought of as consensual
* Because it’s not a fully informed consent
2. Self Defense
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