Torts Flashcards
Tort
Legally recognized wrongful injuring of another that generates in the other a right of action against the wrongdoer
What are Physical Damages? What type of duty of care is owed?
Bodily Harm and Property Damage; General Duty of Care, or Unqualified Duties of Care
What are Nonphysical Damages? What type of duty of care is owed?
Economic Loss and Emotional Distress; Limited Duty of Care, or Qualified Duties of Care
Negligence Elements
Injury, Duty, Breach, and Causation
Negligence Defined
a breach of duty to avoid causing injury to another through careless conduct
General Duty Rule (unqualified)
a person has a duty to take ordinary carer to avoid causing physical harm to a reasonably foreseeable victims. General duty attaches to any course of conduct that carries risk of injury to another, and does not depend on stranger/non-stranger distinction.
Ordinary Prudent Person Standard
A person has a duty to act as an ordinary prudent person would (General Duty). Objective standard.
Privity of Contact
No duty to reasonably foreseeable others not involved in contact
Reasonable Foreseeability
an unqualified duty to take reasonable care not to cause physical harms is owed to another whenever a person of “ordinary sense” would recognize that careless conduct on his part would create “danger of injury to the person or property of the other.”
Heaven v. Pender.
MacPherson v. Buick
Baseline General Duty. A product Manufacturer owes a duty of general care to a user of the product regardless of the presence or absence of privity when (1) the nature of the product alerts the manufacturer that if carelessly made, the product will, under normal use, probably pose a danger to life and limb, and (2) the manufacturer cannot expect the product will be inspected by anyone else before use.
Mussivand
Liability to a third party for failure to disclose the original sexual partner turns on whether injury to the third party spouse was reasonably foreseeable.
Reasonable Foreseeability duty must be more than a possibility; must be probable
Types of Limited (Qualified) Duties
- Affirmative Duty to Protect/Rescue
- Premises Liability
- Pure Economic Loss
- Negligent Infliction of Emotional Damage
Affirmative Duty to Protect or Rescue Baseline Rule
There is no duty to take affirmative steps to rescue someone, even when the act of doing so would cost you nothing
Osterlind v. Hill
Drunk Plaintiff rents a canoe from Defendant. Canoe tips, Defendant does not save him. Hill had no duty to refrain from renting the canoe, and had no duty to rescue Osterlind.
Nonfeasance
failure to perform a required duty
Misfeasance
committing a wrong or error by mistake, negligence or inadvertance, but not by intentional wrongdoing
Exceptions to the Affirmative Duty to Protect or Rescue Baseline Rule
- Duty to Rescue statutes
- Voluntary Undertakings: when you start a rescue, you must take reasonable care in the rescue
- Good Samaritan Statutes
- Imperilment - without or without fault, A puts B in peril
- Special Relationships
Baker v. Fenneman
Plaintiff falls twice in Defendant’s Taco Bell. Defendant’s did not assist him, and should have known he was unwell.
If a possessor of land knows, or should know, that an invitee on the premises needs assistance, the possessor must take steps to assist, even if the possessor did not create the need to rescue.
Tarasoff Rule
a treating therapist who knows or should know that her patient poses a serious foreseeable danger to an identifiable potential victim owes a duty to take reasonable steps to warn the victim. Limited to if (1) victim is identifiable, and (2) therapist knows the victim
Duty Owed to Undiscovered Trespassers (Premises Liability)
a landowner owes no duty to an undiscovered trespasser. he has no duty to inspect to ascertain whether persons are coming onto his property
Duty Owed to Discovered Trespassers (Premises Liability)
once a landowner discovers the presence of a trespasser, he is under a duty to exercise ordinary care to warn the trespasser of, or to make safer, artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover. no duty owed for natural conditions and less dangerous artificial conditions
Invitee (Premises Liability)
Enters at invitation of possessor in furtherance of possessor’s business or mission (customer).
Possessor must take care to provide a reasonably safe premises.
Land Possessor’s Duty owed to an Invitee
Duty to take care to provide a reasonably safe premises.
Licensee (Premises Liability)
Enter with permission of possessor but not in futherance of possession’s business or mission (social guest)
Must warn of hidden dangers about which the possessor knows, or should know about.
Land Possessor’s Duty owed to a Licensee
must warn of hidden dangers about which the possessor knows, or should know about
Trespasser (Premises Liability)
Enters without permission.
No duty of care owed to adults (except for “known” trespassers).
when a possessor knows or ought to know that their property is constantly intruded on, they owe them a duty to warn of any dangers.
Duty owed to children not to maintain attractive nuisane or foreseeable dangerous conditions
Land Possesor’s duty owed to a Trespasser
No duty of care owed to adults, except when a possesor knows or ought to know that their property is constantly intruded on, where they owe them a duty to warn of any dangers
Duty owed to children not to maintain attractive nuisane or foreseeable dangerous conditions
Leffler v. Sharp
man goes from bar of an inn to rooftop through window next to locked door and falls through, even though door said no entry.
When he moved to restricted area, his status changed from invitee to trespasser, therefore no duty owed to him
Exceptions to Premises Liability
- California approach - always a duty owed to warn anyone, regardless of title about potential hazardous things on premises.
- Attractive Nuisance
Attractive Nuisance (Premises Liability)
Must show
1. there is a dangerous condition on the land of which the owner is or should be aware of
2. the owner knows or should know that children frequent the vicinity of this dangerous condition
3. the condition is dangerous because the child is unable to appreciate the risk
4. the expense of remedying the situation is slight compared with the magnitude of the risk
Pure Economic Loss Baseline Rule
there is no duty to take reasonable care to avoid pure economic loss.
economic loss is recoverable when it is parasitic on physical injury or tangible property damage.
Aikens v. Debow
truck driver hits bridge near plaintiffs motel, limiting access to motel. no liability.
no liability even if economic loss to a nearby business was a foreseeable consequence of defendants negligent driving because motel was not damaged, and motel was not affected differently than rest of society.
Exceptions to pure Economic Loss
Special relationships - D must know the consequences of tortious act (ex. lawyers, accountants). there is a heightened foreseeability test (people express v. consolidated rail), and nexus jurisdictions where some physical connection makes the economic loss especially foreseeable
Negligent Infliction of Emotional Damage Baseline Rule
there is no duty to avoid carelessly causing emotional distress to another person. if ED is parasitic on physical harm, the harm is recoverable
Exceptions to NIED baseline rule
- Special Relationships & Undertakings (BUEL v. ASSE - f-ex student)
- Zone of Danger
- Bystander Liability
Zone of Danger Test (NIED)
Where D acts carelessly to subject P to imminent physical danger of which P is aware of and which doesn’t materialize, P may recover for ED associated or stemming from that imminent danger
Zone of Danger Elements
- D’s carelessness put P at risk of imminent physical harm
- P’s awareness of that risk causes her to fear for her own safety
- (MINORITY RULE) P’s fright produces physical consequences that would be elements of damage if bodily injury is suffered
Robb v. Pennsylvania RR
plaintiff barely escapes death after car caught in rut at plaintiff’s carelessly maintained crossing.
ESTABLISHED ZOD TEST
Gotshall
P caused mental harm from experiencing his coworker dying under harsh working conditions. Used ZOD test without physical manifestation of distress
Bystander Liability (NIED) Rule and Elements
bystander may recover for ED caused by OBSERVING negligent infliction of injury to a third person if P is
1. closely related to the victim
2. present at the scene of the injury when it occurred and was aware that the victim was being injured
3. P suffers ED beyond what would be expected in a disinterested witness
Thing v. La Chuse
NIED. Plaintiff was not at scene of accident, but comes upon immediate aftermath and suffers serious distress results from seeing lifeless son.
What determines breach?
the level/type of care D owes P
Myers v. Heritage
nurse dropped patient from Hoyer lift.
court held the jury instruction should be OPP standard of care, as anyone could use the lift, does not require professional standard of care
Martin v. Evans
Jury decides what constitutes breach.
Defendant hit Plaintiff in a parking lot. Conflicting testimony from Defendant and his witness.
Accident itself does not prove negligence – jury should determine negligence, and thus jury verdict was reinstated.
Pingaro v. Rossi
Strict Liability v. OPP
Worker trying to check gas meter was attacked by D’s dog. D acted reasonably (dog was in backyard)
Statutory strict liability enacted by state law must be followed (NJ Dog bite statute)
Jones v. Port Authority
P was injured when buss operated by D lurched forward while he was boarding. Common carriers standard of care is Extraordinary Care.
Campbell v. Kovich
P injured by rock thrown from lawnmower.
D did not breach because he met OPP standard - checked lawn and used reasonable care.
Adams v. Bullock
boy electrocuted while swinging a wire that came in with a trolley wire.
A person who has taken reasonable precautions against foreseeable dangers may not be held liable for injuries caused by extraordinary circumstances.
Vaughan v. Menlove
P repeatedly told D that haystack on his property was a fire hazard, he ignored warnings, and haystack caught fire and burned down P’s cottage.
the OPP standard is objective - doesn’t matter that menlove is an idiot
Exceptions to Ordinary Prudent Person Standard
children cannot be held liable for negligence
Tender-years Doctrine
no child under the age of 7 can be held liable for negligence
Appelhans v. McFall
5 y/o hits old lady with bike.
not negligent under tender-years doctrine, and under Mass. Rule (kids held to OPP standard of kids of their age and maturity)
TJ Hooper Rule
even if D acted within the care that is industry custom, that fact alone does not establish that D used the level of care of ordinary prudence
The TJ Hooper (case)
tug boat could have saved cargo if it had a working radio on board, but industry standard/custom did not require boats to have radios.
Custom is highly probative to the standard, but is not dispositive. Just because a custom/tradition has been in place for a long time, that does not make it correct
Anti-TJ Hooper Rule
in professional malpractice cases, customary standard of care is dispositive. P must prove that D deviated from the standard of care in their practice. In professional malpractice cases, plaintiff almost always needs to bring in expert testimony to determine the standard of care
Condra v. Atlanta Orthopaedic
Overturns Johnson.
Expert testimony is admissible when relevant. only allowed if they have professional knowledge in that area and have actively practiced for at least 3 of 5 years.
Informed Consent (Industry and Professional Custom)
MD’s must provide info that a reasonable patient in P’s circumstances would find material to her decision (Largey v. Rothman)
Reasonable Prudent Patient Standard
what the physician should disclose to a patient in order that the patient can make an informed decision and act like an ordinary prudent person would do
Superior Knowledge Rule
Modified Objective Standard.
a person with special knowledge or skill is required to exercise the care a reasonable person with such special knowledge or skill would exercise under the same similar circumstances
Profession or Trade Principle (Modified Objective Standard)
a person engaged in a profession or trade is required to exercise the care a reasonable member of the profession or trade would exercise under the same or similar circumstances
Dakter v. Cavallino
truck driver got into an accident.
reasonable person standard becomes reasonable truck driver, as it is an objective standard, not a heightened standard. a prudent person with superior skill would use same standard.
US v. Carroll Towing
Hand formula case. If B> PL, the failure to take precaution isn’t a breach of standard of care
Hand Formula
Burden < Probability x Loss
Burden - cost of taking precaution
Probability - that harm will occur
Loss - magnitude of harm
If burden outweighs PxL, the failure to take precaution is not a breach of standard of care
Res Ipsa Loquitur
Exception to OPP breach
allows a jury to infer negligence where the exact cause of an accident is unknown.
Res Ipsa Loquitur Elements
- accident that harmed P is of a type that tends not to occur without carelessness
- instrumentality of harm is in D’s exclusive control
- P was a passive victim
Byrne v. Boadle
Res Ipsa Loquitur
barrel falls out of a window and hits P.
if injury of a type that does not typically occur without negligence does occur, negligence is presumed from the mere fact of the occurrence
Kombat v. St. Francis
Res Ipsa Loquitur
malpractice action for fatal infection traced to surgical pads left in P
no expert needed for foreign obect 0 common sense to not leave pads in. P not obligated to eliminate every alternative explanation for the event
Actual Causation (Factual Cause)
Did D’s carelessness play a role in bringing about P’s injury?
But-for D’s carelessness, would P be injured?
Proximate Cause (Legal Cause)
Limits the scope of cause in fact or actual causation. serves to cut off liability at a certain point even where cause in fact is satisfied, for reasons that the harm is somehow too attenuated to make liability justified
Preponderance of the evidence
P must prove that D’s breach probably (>50%) needed to happen for P to be injured.
Muckler v. Buchl
P falls down stairs due to poor lighting. all other causes ruled out.
It is more than likely that proper lighting caused fall
Butts v. Weisz
Old man trips on a step at his friends house, falls down stairs and dies. Estate cannot prove what caused fall, and Butts had been up and down stairs prior to fall.
Cannot prove why he fell, so no causation bc inference is not enough.
Mcdonald v. Robinson
Multiple Necessary Causes
two D’s driving negligently crashed into each other and hit P.
If the acts of two or more persons act in concert together to cause injury, and but-for such concurrence of actions, both D’s can be held jointly or severally liable on P’s discretion.
Multiple Necessary Causes
Each D action is necessary to have caused the injury. individual actions, by themselves, are not sufficient to cause injury
Multiple Sufficient Causes
exception to but-for causation and disregards proximate cause
if multiple acts occur, each of which standing alone would have been enough to cause injury, each act is regarded as an actual cause
Ford Motor v. Boomer
Multiple sufficient causes.
P was diagnosed with mesothelioma. worked as state trooper checking brake pads. also worked at navy ship yard.
the acts do not have to be concurrent so long as there are “operating and sufficient to cause the harm”
both held liable.
Alternative Causation
two or more D’s act independently, fault of only one was necessary to cause P’s injury, but which one is unknown.
Burden of causation shifted to D to disprove their carelessness
Summer v. Tice
Alternative Causation
while quail hunting, two D’s shoot at P, but it is unknown which P’s bullets actually hit D
because it is impossible to know who shot P, both D’s held joint and severally liable to protect P.
Market Share Liability
if multiple manufacturers of fungible goods are named as defendants in a negligence action and it cannot be determined which manufacturer caused the harm, the manufacturers will be held proportionately liable in accordance with their market share.
Sindell v. Abbott Labs
Toxic Torts
General Causation - P must prove that Drug is capable of causing harm in humans
Specific Causation - P must prove that P’s exposure to meds could have caused P’s harm; P must also prove that P’s exposure to meds was a necessary cause for P to contract harm
Cooper v. Takeda
Loss of a Chance
redefined injury to solve causation puzzle in Falcon. P dies in child birth because IV was not administered. even if administered P would only have a 37% chance of living, but MD deprived P of chance to survive.
Four Tests of Proximate Cause (know top test)
- Foreseeability (majority)
- Scope of Risk (minority)
- Natural and ordinary (ryan)
- Directness (polemis)
1 & 2 usually but not always reach same results
Foreseeability Test
the conduct giving rise to the harm must be of the same general type or category to make liability justified. the category of the harm needs to be foreseeable
Jolley v. Sutton
Foreseeability Test
rotting boat was an attractive nuisance and D’s careless failure to remove boat over 2 years proximately caused P’s injuries.
D was liable where nature and risk and type of injury were reasonably foreseeable
Union Pump v. Allbritton
Foreseeability Test
fire caused by defective pump. after fire stops, Allbritton slips and falls taking a shorcut back to office
Carelessness was not a proximate cause, as it was too remote and too attenuated. D’s fault was not a substantial factor in bringing injury, was just a “mere condition.” forces came to rest before P was injured.
Palsgraf v. LIRR
Proximate Cause
P injured while standing on train platform when person drops fireworks on the tracks while trying to board train.
a negligence plaintiff cannot piggyback on D’s carelessness that was directed towards a differently situated person. a Jury could not find D was careless with reference to P.
Kinsman
Proximate Cause
If a negligent actor creates a risk of foreseeable injuries, the actor may be liable for actual injuries of that same general type even if the actual injury’s nature and extent were not foreseeable.
Kinsman was dislodged at Continental’s dock by ice, causing damage to other ships who were dislodged, ultimately damming a river and wrecking a bridge
If an actor’s negligence triggers a chain of events leading to harm, the actor’s liability is not limited by the fact that another person in the chain failed to act to diminish the ultimate harm.
Quisenberry v. Huntington Ingalls
P’s family member died to exposure to asbestos at home form washing employees clothes. exposure at home was foreseeable - no laundry or changing area or warning at job.
a person owes a duty of care to individuals who face a recognizable risk of harm from persons conduct
Superseding Cause
an intervening event, occurring after the alleged tortfeasor’s act, that is legally deemed to override the tortfeasor’s act as the cause of the injury and to relieve the tortfeasor from liability to such injury
Superseding Cause General Rule
intervening causes do not supersede. However, if a potential superseding cause is wildly unforeseeable then it could possibly create a “new power of doing mischief”.
the more attenuated in time and space the intial cause becomes, the more likely that an intervening cause will become a superseding cause
NJ NY Port Authority v. Arcadian
Arcadian not liable for WTC bombing in ‘91 bc their fertilizer in its raw form did not pose any danger, thus the danger cause was unforeseeable
Negligence Per Se
Filler for breach element.
permits P to satisfy breach element of her cause of action by proving D violated a statutory rule of conduct.
Analysis for Negligence Per Se
- Does the statutes (or regulation) set a standard of conduct?
- is P a member of the class that the statute was meant to protect?
- was the incident among those that the statute was intended to prevent?
If YES to ALL, P can use NPS instead of having to prove each element of negligence
If NO to ANY, P cannot rely on NPS, but might be able to introduce the violation as evidence suggesting D failed to conform to common law’s ordinary care standard
Dalal v. City of NY
NPS
D hit P after running a stop sign. D was not wearing glasses, which she was required to due to NY traffic statute.
Violation of statute is NPS when violation causes the injury.
Bayne v. Todd Shipyards
NPS
P hurt on D’s loading dock w/o railing. regulation says railing is meant to protect employees, P was not an employee.
Still NPS bc P was of the class of people that the state regulation was meant to protect.
Victor v. Hedges
NPS
D invited P to see new CD player in truck, parked on sidewalk. while on sidewalk, car hits P.
not NPS because the event that caused the injury was not of the type the regulation was designed to prevent.
Wrongful Death
adds an additional class of plaintiffs who can recover from a tort suit, not a new tort. Duty/Breach/Causation still need to be proven.
Survival Action
Direct Action. Compensation by estate for losses incurred by decedent during life (payable to estate). Injuries suffered by tort victim. Estate can recover for pain and suffering decedent endured during the time between when injury occurred and before death
Wrongful Death Action
Derivative Action. Empowers decedent’s surviving family members to seek compensation for loss of the support they have incurred as a result of the tortious killing of their decedent. Injuries suffered by next of kim/family of tort victim. Next of kin can recover for lost earnings of decedent after death (up to retirement) and loss of society damages (different from emotional distress)
adds an additional class of plaintiffs who can recover from a tort suit, not a new tort. Duty/Breach/Causation still need to be proven.
Nelson v. Dolan
suit between mother of P who was killed in bike crash with D. P’s pre-death suffering is compensable, next of kin cannot recover for anguish over sons death (wrongful death act)
Contributory Negligence
if P is AT ALL to blame for their injury, P loses and is barred from recovery
Comparative Fault
some at-fault P’s can recover, but the compensatory damages awarded for those who do recover are reduced in proportion to fault. D must prove that P was negligent and that P’s negligence was the actual cause of P’s injury
Pure Comparative Fault
P can recover portion of damages based on % of fault (even if P is 99% at fault)
Modified Comparative Fault
MAJORITY RULE. P can recover until P’s fault is at 50% or higher, then no recover
US v. Reliable Transfer
Comparative Fault
Tanker ended up stranded on sand bar. P was 75% at fault, coast guard was 25% at fault. departed from customary standard of divided damages rule in admiralty
Hunt v. ODRC
ModifiedComparative Fault
inmate stuck hand in snowblower. should have known better, but was not taught properly by officer.
D breached duty of care to properly instruct P how to use snowblower. P=40%, D=60%, proportional recovery
Implied Assumption of Risk (AoR)
Complete bar to recovery. no agreement, but P freely and knowingly chooses to encounter a danger posed by D’s carelessness
Express Assumption of Risk (AoR)
Complete bar to recovery. Agreement between D and P, P agrees in advance to waive right to sue for injury caused by D’s wrongdoing
Jones v. Dressel
Express AoR
D skydiving company injured P customer when their plane crashed en route to jump site. P signed contract releasing D from liability.
the contract is valid and D cannot be held liable because the services provided by D are not essential to the public, and clause was clear/unambiguous
Dalury v. S-K-I
Expres AoR
P injured due to negligently placed pole on trail at D’s resort
millions of people ski by way of invitation from resorts such as D, and it is essential that these resorts cannot contract their way out of negligence
Express AoR Analysis
If consent waiver is signed- public policy analysis
1. extremely common activity?
2. essential for public service?
3. advertised to the masses?
Smollett v. Skating Dev Corp
Implied AoR
P hurt skating at D’s rink. rink was elevated, carpet next to rink, no guard rail, lots of kids. P fully understood the risks of harm to herself and voluntarily chose to enter rink, assuming risk of injury.
Sovereign Immunity
Affirmative Defense, only applies to US or State Government. Local governments and municipalities are not included (unless exception).
FTCA
Statute that limits soveriegn immunity. Federal Government is subject to liability “if a private person would be liable to the claimant in accordance with the law of the place where act or omission occurred.
Riley v. US
Sovereign Immunity Exception - DFE.
USPS has duty to place mailboxes in a safe place. Government retains immunity under discretionary function excemption (DFE).
P injured due to mailbox placement blocking her view of road.
Public Duty Rule
A government entity cannot be held liable for the injuries of an individual resulting from a public officer’s or employee’s breach of a duty owed to the public as a whole as distinguished from a duty owed to the particular individual
Riss v. City of NY
Public Duty Rule.
Woman calls police on stalker a few times, eventually gets attacked by the man.
absent special circumstances, law does not and should not recognize a duty owed by policy to take steps to protect a citizen. Police job is to protect society at large.
Strauss v. Belle Realty
Public Duty Rule.
P falls during black out in common area where ConED was contracted w landlord and P sues ConED.
ConED only liable to people that they contracted with, not P. Court’s holding limits extreme liability to ConED
Compensatory Damages
money owed by D to P as compensation for what P has suffered at the hands of D.
Punitive Damages
money owed by D to P as punishment for egregious mistreatment, or to further deter similar actions. A wanton disregard (recklessness) of the safety of others, and which in law is equivalent to malice
Economic Compensatory Damages
past/future lost earnings; past/future costs
Non-Economic Compensatory Damages
Victimization, disfigurement, past/future pain and suffering (no metrics for quantifying
Kenton v. Hyatt Hotels
Compensatory Damages.
skybridge at hotel falls, causing mass tort. Kenton awarded $4mil (not excessive) for her pain and suffering, mental anguish, medical bills, etc.
Eggshell Skull Rule
D is liable for P’s unforeseeable and uncommon reactions to D’s negligent tort. Tortfeasor takes his victim as he finds him.
Smith v. Leech Brian
Eggshell Skull Rule
spattering molten metal burns P’s lip, causing cancer that kills him. D alleges he should only be liable for burn (foreseeable damages).
Proximate cause limits liability, not damages. Burn is foreseeable, so extent does not matter, D is liable.
Nat’l By-Products v. Searcy
Punitive Damages
D was speeding and drove a tractor trailer into car, killing two people. did not know brakes were faulty.
NO PUNITIVE DAMAGES bc he did not act with malice and did not proceed with intentionally wanton disregard.
Mathias v. Accor Econo Lodge (Minority)
Punitive Damages
P bitten by bed bugs that hotel tried to lie to customers about and cover up.
Punitive damages are acceptable to deter fraudulent business practices
Respondeat Superior
allows plaintiff to sue principal for the actions of the agent (employer can be sued for acts of employees under the characteristic of employment)
Taber v. Maine
Respondeat Superior
Naval employee drank on base and got into car accident off base. Drinking on base was considered commonplace characteristic of the job
Battery
Intentionally Causing another to suffer a harmful or offensive contact.
ex: A intentionally shoots B in the back, B was unaware he was about to be shot (no assault)
Prima Facie Elements of Battery
- A Acts
- Intending to cause a contact with P (intent-subjective)
- The contact with P that D intends is of a harmful or offensive type (intent-objective)
- A’s act causes P to suffer a contact that is harmful or offensive (cause)
What is Offensive Contact (Battery)
fondling, massaging, cuddling, etc. things can be offensive but not physically harmful/injurious. Offensive to a reasonable sense of personal dignity, or if the actor knows the contact is highly offensive to another’s unreasonable sense of personal dignity, and contact was to be offensive
Paul v. Holbrook
Offensive Contact - Battery
a reasonable jury could conclude D intentionally touched P in an offensive manner
Extended Personality Doctrine (Battery)
P’s body does not need to be touched. blowing smoke, taking a plate in P’s hand is battery, etc.
Vosburg v. Putney
Intent Element of Battery
Vosberg gets kicked by Putney on his already injured leg, leading him to become disabled; even if the intent wasn’t to seriously hurt V, his intent was to kick him.
Cole v. Hubberd
Intent Element of Battery
Defendant playfully kicks her friend in the rear, and she suffers injury
Reasonable minds can only conclude the defendant intended to kick the plaintiff, and that kick would be considered offensive
Wagner v. State
Minority View of Intent Element
Actor must merely intend a physical contact for it to be battery.
Mentally ill person on state agency-supervised trip attacks Wagner. Wagner wants it to be negligence, not battery, because if it were battery the state is protected by soverign immunity.
Assault
Intentionally causing another to reasonably apprehend imminent harm OR offensive contact.
Prima Facie Elements of Assault
- A acts
- Intending to cause in P apprehension of imminent harmful or offensive contact, and
- A’s act causes P reasonably to apprehend such contact
Beach v. Hancock
Assault
P points unloaded handgun at D. Justification for apprehension is actionable
Brooker v. Silverthorne
Assault
Conditional verbal threats are not enough for assault – No apprehension as a matter of law because it was a conditional threat, and D was not physically present, so there was no intent to cause imminent harm
Vetter v. Morgan
P and D at a traffic stop. D made violent gestures/threats to P and P drove off the road and was injured.
When conducting assault analysis look at all circumstances to determine whether it was objectively reasonable for P to have apprehended fear of imminent harmful contact
P was woman, outnumbered, late at night, physically proximate (cars), threats took place between cars (cars can easily be used to injure)
Transferred Intent
allows intent that is directed at another to be transferred to the person whom actually suffers consequences of the action
In Re White
Battery (Transferred Intent)
D shot P while intending to shoot someone else
it is sufficient that D acted with the purpose to injure someone. D’s actions cannot be excused solely because he missed his intended victim.
(different victim, same intentional tort)
Nelson v. Carrol
Transferred Intent
man intends to assault P by showing gun to collect money, but gun accidentally fires and hits P
Intent is transferred across assault and battery (same victim, different intentional tort)
Lynn v. Burnette
Transferred intent
D shoots P but claims she was aiming for car and missed
transferred from things to persons
Corn v. Sheppard
Transferred Intent
D intended to shoot wolf, but wolf ended up being a dog. D didn’t know.
wronful intent of shooting of dog is transferred to battery
Express Consent
written consent to permit some sort of tortious conduct
Implied Consent
consent that is inferred from P’s actions/circumstances
Koffman v. Garnett
Implied Consent
youth football player agressively tackled by coach and injured.
reasonable jury could conclude D’s tackle was not a type of tackle that P consented to by being on the football team
Self-Defense is available to a victim who:
- reasonably believes
- that the use of force is necessary
- to avoid imminent injury to himself
- the force must be proportional
- non-deadly force can only be matched with non-deadly force
Haussler v. DeLoretto
Self-Defense
P’s lost dog found in D’s house. P was pissed and was frantic in front of D. P took aggressive steps toward D and D punched him.
D acted in reasonable self defense – proportional response
Katko v. Briney
Defense and Recapture of Property
D set up a shotgun contraption in his barn because there were often trespassers.
the shotgun was disproportionate and known to likely cause serious injury or death. not a reasonable measure
False Imprisonment Elements
Actor A is subject to liability to P for false imprisonment if
1. A acts
2. intending to confine P
3. A’s act causes P to be confined
4. P is aware of her confinement (Majority of Jurisidictions)
Minority Elements:
1. P did not consent to be confined
2. A was not legally authorized to confine P
Fotjik v. Charter Medical Corp.
False Imprisonment
P claimed he was confined at rehab. was allowed to leave and voluntarily returned. never physically restrained.
No false imprisonment. D did not coerce him to stay, and did not overcome P’s free will
Shopkeepers Privilege
provides that a person who reasonably believes another person has stolen, or is attempting to steal property, is privileged to detain that person in a reasonable manner and for a reasonable time to investigate ownership of the property
Shopkeeper’s Privilege Components
- a reasonable belief a person has stolen or is attempting to steal
- detention for a reasonable time
- detention in a reasonable manner
Grant v. Stop-N-Go Market
NOT Shopkeeper’s Privilege – no evidence of stealing, was held for over an hour, and told Grant he could not leave. Store mgr. threatened to call police, threat was enough for false imprisonment
Immunity Irvin v. City of Shaker Heights
Qualified and State- Statutory
P walking with young daughter was stopped, arrested, and beaten by police. imprisoned for 6 months awaiting trial, and was eventually acquitted.
A government official is immune from liability for the official’s conduct does not violate a constitutional right that a reasonable person would have known existed
Intentional Infliction of Emotional Distress Elements
- D acts
- for the purpose of (or recklessness as to) causing P severe emotional distress
- D’s conduct is “outrageous”
- D’s conduct causes such distress
Dickens v. Puryear
IIED
P had sex and did drugs with D’s 17 y/o daughter. D beat and threatened his life if he didn’t leave the state.
Only the conditional death threat satisfied IIED (SOL passed for assault and battery)
Littlefield v. McGuffey
IIED
upon learning of P’s interracial relationship, racist landlord reneges on lease and harasses P
IIED is limited in discrimination cases, but P does not have to prove “physical manifestation”
Hunt v. State
Reckless scope of IIED
cop investigates middle school incident and scares kid.
Recklessness as to risk of traumatizing the victim suffices to establish the intent element of IIED
Trespass to Land Elements
- D enters, or causes an entry, or remains on land, or fails to remove a thing from land that D is duty-bound to remove
- the land is in the lawful possession of another
- D intended to enter, or cause entry onto the land, or intended to remain on the land, or failed to remove a thing from the land.
Does not matter if D knows he is trespassing
Burns Philp v. Cavalea
Trespass onto Land
D placed fence between two properties without knowing it extended on P’s land without permission.
Notice that one is trespassing on land is NOT required.
Trespass by Necessity
NOT a defense to a trespass action
Vincent v. Lake Erie Transport
Trespass by Necessity
D leaves boat on dock during dangerous storm – cannot leave – D’s boat damages dock
D may trespass to preserve his life, but still has to pay for damages that he caused to P’s dock
Conversion
Wrongful Taking of Someone’s property
Merger Doctrine
Intangibles may be permitted where some kind of tangible token represents it (ex: stock certificate)
Thyroff v. Nationwide
(MINORITY) Conversion applied to Electronics
P sues former employer for conversion of his electronic workers. Conversion should cover electronic records
Trespass to Chattel Components.
damaged property or deprived of use.
One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if
1. he dispossesses the other of the chattel, or
2. the chattel is impaired as to its condition, quality, or value, or
3. the possessor is deprived of the use of the chattel for a substantial time
Chattel
tangible moveable personal property
Affirmative Defense to All Trespass Torts
Consent
COpeland v. Hubbard Broadcasting
Consent to Trespass
D hired vet student who filmed a vet doing surgery at someones house. Allowed in house, did not get permission to film.
D remaining within the geographic limits of consent is not dispositive
Nuisance Elements
- D acts
- In a way that causes an ongoing and unreasonable interference
- with P’s use and enjoyment of property in which P has possessory interest
Sturges v. Bridgman
D baker uses mortar in backyard. P doctor builds office against wall of mortar. claims nuisance
Here, the claim for nuisance is actionable because it negatively impacts his business
Injunctive Relief Standard (Nuisance)
If a nuisance exists, then an injunction is presumably appropriate, unless the hardship to ∆ greatly outweighs the hardship to π
Penland v. Redwood Sanitary
Injunction
sewage plant smelled bad making it impossible for people in area to enjoy the outdoors.
Injunction necessary, and does not place undue hardship on D, because they can manage cost by spreading across taxpayers
What constitutes an unreasonable interference?
Depends on its effects on an ordinarily reasonable person. Relevant factors to examine:
Location of nuisance, Neighborhood’s character, Nature of the nuisance, Frequency of intrusion, Effect the nuisance has on health/life/property
Boomer v. Atlantic Cement
No Injunction
Δ’s cement plant deemed a nuisance for causing air & ground pollution on πs’ property
Holding: No injunction granted because hardship to cement company would greatly outweigh the hardship to the public, and broader public impact.
Cost Benefit analysis to injunctive relief for nuisance
- Hardship to nonmoving company would greatly outweigh the hardship to public
- Broader public impact
Abnormally Dangerous Activities Elements
An activity is “abnormally dangerous” if it:
1. Creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors, and
2. Is not one of common usage
Rylands v. Fletcher
ADA
P operated coal mines, D built a reservoir, it broke and flooded the mines.
Choice to engage in this high risk activities brings strict liability
Klein v. Pyrodone
ADA
Fireworks display in public park hits P
ADA - Strict Liability - uses R2D factors to assess
Product Liability Elements
- Injury
- Product was sold by D
- D is a commercial seller of the product
- Product was defective at time of sale
- Causation (actual and proximate)
Who can be sued for product liability?
Manufacturer, Distributor, Commercial Retailer.
NOT casual sellers, sellers of services, sellers of used goods
Escola v. Coca Cola
Strict Products Liability
Waitress takes bottle of Coca Cola delivered to restaurant, explodes in hand.
Manufacturer is strictly liable if (1) places product on the market (2) the product contains a defect when placed on the market (3) mfr knows that product is to be used w/o inspection and (4) the product causes personal injury during its normal use
Three Types of Product Defects
Manufacturing Defect
Design Defect
Failure to Warn
Manufacturing Defect
A particular product has a manufacturing defect if it diverges from the manufacturer’s own specifications for the product
Design Defect
Flawed product line. there is a flaw in the plan or specifications for the product.
Failure to Warn
Information flaw. when safety requires that the product be sold with a warning but the product is sold without a warning (or without an adequate warning).
Gower v. Savage Arms
P shot in foot when gun accidentally fires while holding it.
all 3 defects
Greenman v. Yuba Power Prods
Products Liability
P used power tool manufactured by D to shape pieces of wood. wood flies off machine, injuring P.
manufacturer strictly liable for defect in the product
Chow v. Reckitt & Coleman
Product Liability
P blinded using lye to clear pipes.
A defendant is not liable for design defect if the evidence shows that the product’s utility outweighs its inherent risk of harm.
Risk > Utility
