Torts Practice Flashcards
Battery
- A person acts intending to cause (directly or indirectly)** harmful or offensive conduct **or the apprehension of harmful or offensive contact
- and contact occurs.
- no consent given
Assault
- A person acts intending to cause (directly or indirectly)** harmful or offensive conduct **or the apprehension of harmful or offensive contact
- and reasonable apprehension occurs.
- No consent given
Intent
- Acting with purpose to cause h/off contact; or
- Substantial certainty that h/off contact will result
Offensive
harmful to a reasonable persons sense of dignity
Offensive Contact Case
- Male nurse touches religious woman who is offended by male seeing nude body.
- Boss serves meatballs to religious workers who specifically requested not to eat meat
Imminent definition
D’s act must cause victim to expect that he is** about to be touched**. Threatening someone in the future is not an example of this.
Cullison v. Medley (Assault Case)
Jump Astradle
Cullison hanging out with underage girl, family of girl enters mobile home of Cullison and father has a gun in his holster. Makes a threat to “jump astraddle” while touching gun.
Jump Astradle
Assault Conditional Statements
- If it is implied based on words that h/off contact won’t occur based on a cond’l statement, it does not constitute assault.
- If assailant makes a threat based on a condition that the other party has every right not to follow, it is assault.
o “If you don’t sleep with me, I’ll shoot you”
False Imprisonment
- Actor intends to confine person within boundaries fixed by actor; AND
- Person is confined to a limited area or is threatened by force, threat of force, or false assertion of legal authority for ANY appreciable time; AND
- Person was aware of confinement or was harmed; AND no privilege or consent given.
False imprisonment Cases
McCann v. Walmart
Knowlton v. Ross
Transferred Intent
If party intends to commit battery on X but batters Y, intent transfers to Y. Baska v. Scherzer: P breaking up fist-fight and gets punched.
If party intends one tort but another tort occurs, intent transfers. (Kanye Hypo)
Shopkeepers Privelage
One who reasonably believes another is stealing on premises is privileged w/o arresting the other to detain him on premises for time necessary for reasonable investigation of the facts. Must be in the moment stealing, not retroactive.
Consent
- Consent is judged by what someone would reasonable believe the other is indicating.
- It is an objective test, because we can not look into the mind of the person to see what they were actually thinking.
- Can be withdrawn expressly or impliedly (i.e. just walking away from a touch football game).
- Has a scope
* Consenting to one thing doesnt imply multiple things - Incapacity to consent
* Kids
* Intoxication
* Mental conditions
* Jailor inmate
DUAL NATURED - could be part of P’s Case or D’s as affirmative defense
Negligence
Negligence Elements
- Duty – someone is engaging in risk creating conduct; everyone is responsible for the management of his person or property to the standard of ordinary care (CA § 1714).
- Breach of duty (negligence) – individual/corporation manages themselves below the standard of care.
- Actual Harm or injury occurs.
- Factual Cause – there is a causal link between breach and P’s harm.
- Scope of Liability (aka proximate cause) – harm is actually one that D will be held liable for because it’s a harm of the kind that D’s breach of conduct would cause.
- Negligence Per Se - replaces the standard of general duty w/ violation of statute. Always address this one way or another if a statute, code, or anything like this is mentioned.
Negligence
Standard of Care
General duty of ordinary, reasonable care. The standard does not change, but the reasonable person must exercise care in proportion to the risk-level of the applicable conduct.
Stewart v. Motts
Car/Gasoline
F: Guy filling car with gasoline.
Rule: Court established there is only reasonable care. Not an additional standard. No higher level of care
Negligence
Varying Standards of Care
Physical disability: held to standard of how a RPP w/ same disability would act in situation.
Expert: RPP w/ same knowledge; what would they do?
Children: held to standard of a RP child of the same age, experiences, knowledge, and skill while performing child activities. If adult activity, then adult standard.
Stevens v. veneestra
Minor driving car
Rule: Court established that kids engaging in adult activities can be liable for RPP standard of care
Shepard v. Gardner Wholesale
Blind lady trips sidewalk
Rule: Court established standard of care for people w/ same disability
Hill v. Sparks
Tractor kills sister
Rule: Court established that there is a expertise varying standard of care.
Negligence
Breach
Someone creates an unreasonable risk of harm when a reasonable, prudent person would:
- Foresee that their actions might cause harm (was it foreseeable?); AND
- Take measures to reduce likelihood or avoid that foreseeable risk altogether.
Negligence
Methods for Proving Breach
- Basic Method - Proposing alternative
- Notice & Opportunity to Cure (Slips and Falls)
- B<PL (only if $ involved)
- Deviating from Industry Custom
- Negligence Per Se
- Res Ipsa Loquitur
(the action speaks for itself) - Special Knowledge
Standard for Assessing Negligence
Engaging in risky activity and RPP would
- Foresee their actions may create harm
- Take measures to reduce foreseeable risk
Proving Breach
Basic Method
Proposing an alternative method to D’s actions. Weighing the risks and costs of that action.
Indiana consolidated v.
Lawnmower garage fire
Rule: Established that the alternative of pushing lawnmower out of the garage would seriously injure the defendant. Not an actual alternative
Piper v. Parsell
Passenger jerked wheel
Rule: Court ruled driver should have foreseen that girl would grab wheel again.
Proving Breach
Notice & Opportunity to Cure
- **Employee created the hazard **and failed to correct it.
- Constructive knowledge: Enough time has elapsed between some hazard/accident for RPP to have discovered and abated it.
- Mode of operation: Manner of business owner’s business creates a predictable hazard that D has duty to monitor.
Slips and Falls
Renner v. Retzer
McDonalds chair
Rule: Court established that employees had constructive knowledge of chair causing hazard.
Notice and Opportunity to Cure
Un-varying methods of Standard of care
- Mental disability
- Old age related
B < PL
When burden of avoiding a bad outcome is less than probability times value of bad outcome, then D is negligent for doing what he did and not adopting alternative method.
B: how much the alternative costs and risks that the alternative poses. Tie, effort, opportunity cost.
P: Probability; how likely it is to occur.
L: Injury; cost, property damage, medical cost, lost work, etc.
US v. Carrol Towing Co.
Bargee
Rule: Cost of hiring a bargeman was less than the negligence it caused.
B <PL
Deviating from Industry Custom
Deviation from an industry custom may establish breach, but compliance might only establish a weak inference. Industry customs are a minimum requirement, not a maximum obligation.
Duncan v. Corbetta
Pressure treated wood = Cheap stairs
Rule: Court established industries customs enough for safety requirement
Negligence Per Se
- Statute clearly defines standard of conduct
- Harm caused is w/in the “class of harms” statute designed to prevent
- P must be member of class of person the statute was designed to protect
- Statute must have been violated
O’guin v Bingham County
Kids in landfill
Rule: Court established that the harms the boys faced was covered under the public safety language in the statute.
Negligence per se
GGS v JB
Creepy Dentist sexual assault
Rule: Court ruled that the damages wasnt in the type of harms it was meant to protect
Negligence per se
Res Ipsa Loquitor
The Action speaks for itself
You don’t know what negligent act is and can’t say what D should have done differently, so no facts to establish breach. You don’t know what D did to make barrel fall on his head.
RIL (Elements)
- Within control of the defendant at the time of probable negligence
- Defendant has a right, authority, or responsibility to control at the time of probable negligence
- The type of accident that occured does not usually happen without negligence by a class of persons to whom the defendant belongs
Byrne v. Boadle
Barrel falls on guys head
Rule: Court ruled the accident presumes negligence
Negligence Per se
Giles v. City of New Haven
Elevator chain w/ Woman operator
Rule: Court ruled that negligence by a defendant is not ruled out by plaintiff partial negligence
Actual harm
Legally cognizable harm
* Physical impairment of human body or property
Right v. Breen
Rear ended but no physical harm
Rule: No actual harm to D because of previous accidents
Actual harm
Factual cause definition
- D’s negligence caused some dangerous condition; AND
- The dangerous condition caused P’s injury.
But for Causation
Factual cause
But for D’s negligence, accident wouldnt have happened.
-Replay scenario w/o negligent act, if harm doesn’t occur then D was but-for cause.
Ziniti v. New England Central railroad
Guy drives over tracks/sign on wrong side
Actual causation was not proved. Stated differently, nothing suggests that if the additional signs had been present, then then the collision would have been avoided. Actual causation therefore does not exist.
Multiple Sufficient Causes
- In situations w/ multiple negligent actors; you can only die once.
- If the only reason that D1’s negligence fails but-for test is b/c there’s another sufficient cause (D2’s negligence) of P’s harm, D is still a factual cause.
- If you remove one D’s negligence and it still causes actual harm, then the test applies.
- If several causes could have caused the harm, then any cause that was a sufficient cause is held liable.
Landers v. East TX Salt Water Disposal Co
Salt water vs. Oil
All wrongdoers will be held jointly & severally liable for entire damages. Focusing on harm to fish, but-for fails; the harm still occurs but-for the other. If we knew one had gotten their first, but-for would work. (If A poisons Z and B then stabs Z, only A is liable; you can only die once)
Summers v Tice (Test)
Shotgun to the face
- Both Ds breached standard of care, both are negligent, but don’t know which caused the harm.
- But-for doesn’t work b/c you can’t determine the outcome of the test.
- This makes preponderance of evidence hard when you’re dealing w/ 2 actors: <50%.
Scope of Liability
- An actor’s liability is limited to those physical harms that result from the risks that made the actor’s tortious conduct.
- In other words: D is responsible for the risks that D ran when he was negligent.
Extent of Harm
SOR
- If an accident of the type that occurred is otherwise within the scope of the risk that D took, D is liable for the full extent of P’s foreseeable injuries, even if they’re unexpected.
SOL : Policy reasons
- Other more culpable actors.
- Permit appropriate insurance.
a. Who has better insurance? Dr. has med. mal., patient doesn’t for accidents. - Encourage people to adopt appropriate accident avoidance measures
a. Deterrence - Shift cost onto least cost avoiders
a. Who had the least burden to fix.
Thompson v. Kaczinski
Dissassembled trampoline blows into the road
They should have known high winds occur and trampoline was close to road. They also waited until hours after the storm passed to check.
Within SOR
Palzgraf v. LIRR
Woman gets hit w/ scale
Unpredicted harm and manner.
Subsequent medical negligence
SOR
- Subsequent medical malpractice is always foreseeable. Subsequent accidents + diseases, too. Don’t limit liability.
Unexpected manner
- The harm/injury that that occurred was w/in scope of risk but the manner in which it came about was not how one would have expected.
- Hughes v. Lorde Advocate: Kids going into the tent with the manhole open and lanterns out
- Recovery
SOR
Unexpected harm/result
- The harm/injury that occurred was not w/in scope of risk.
- Hypo: Rat poison next to stove, is flammable unbeknownst to them and explodes. Unexpected result; the expected result is poisoning a customer.
- No Recovery
SOR
Rescue Doctrine
- Injury invites rescue. Rescue is foreseeable. Rarely limits liability.
- If D is negligent and puts himself in peril and P goes to rescue and is injured, D is liable for P’s injuries.
- If injured while rescuing someone from another’s negligent risk creation, then the negligent person is liable for rescuer’s injuries too if rescuer reasonable believed injured was in peril.
- If in act of rescuing another negligent person injures rescuer, he is probably more culpable than the person whose negligent act started it off in the first place.
SOR
Criminal intervening acts
In D’s negligent act, was someone else’s criminal act within scope of risk (open door rule)?
* Was the exact criminal act w/in scope of risk; would an arsonist be hanging out at gas station.
* Foreseeable – liable, not foreseeable – not liable.
SOR
Collins v. Scenic Homes
Negligently built homes not up to fire code
Fire started 20 years later and people died due to arson. People dying in a fire is within scope of the risk and Scenic Homes is the least-cost avoider – they should have followed building codes and if they had, this would not have happened. 20 years does not matter for legal cause; only matters b/c of statute of limitations.
SOR
Subsequent Negligent & Intervening Acts
Apply scope of the risk test, along w/ the policies behind scope of liability limits. Foreseeable – liable, not foreseeable – not liable.
Hughes v. Lorde Advocate
Kids burned near manhole by lantern
Unexpected manner - The type of harm was foreseeable but just the way it happened was not.
Derdiarian v Felix Contracting Corp
Epileptic driver running into non protective barricade injured driver
Within the Scope of the risk
* The type of action D should have prevented regardless of the epileptic seizure
Ventricelli v. Kinney
Rental car trunk latch
Risk of having a faulty trunk does not include risk that someone would hit you while you’re trying to close it on a normal street. If it were on the freeway when it popped open, then it could be w/in scope of risk b/c of the hazard of not seeing.
- Not within SOR
Pure comparative fault
P can recover minus the proportion of their fault .
* If 95% at fault can still recover
Modified comparative Fault
P must be < 50% then can recover
Express AOR
Contract
* Does the contract actually waive liability for the wrong suffered
* Can this act or state of mind by the D actually be waited
* Cant waive gross negligence or recklesssness
Tunkl Factors
- Essential service - practical necessity
- Asymmetrical bargaining strength
- NO ability for P to opt out by paying extra money
- Offers service generally to the public
- Standarized adhesion contract - no ability to opt out
- CANNOT waive medical services, nursing homes, essential common areas of apt complexes, daycares
Stelluti v Casapenn
Women gets hurt on bicylce
- The contract had language to waive liability for getting hurt on gym equipment.
- Policy reason = insurance would be impossible for a gym to get
Moore v. Hartley
ATV course
The contract didnt include language that barred negligence for the condition of the safety course
Implied AOR
Primary AoR
- Inherent risks then
- No recovery
- Think woman hired to do house keep for alzheimers patient
Implied AOR
Secondary AoR
- Non-inherent risks
- Comparative fault rules apply
- Could the D eliminate/mitigate the risk without completely altering the activity
- Baseball nets to prevent against foul balls
- Baseball hotdogs shot at patrons could be handed out
Invitees
- Customers invited to a business
- making money off the invitee
- Duty exists
Liscencees
- Social guests
*No duty (traditionally)
Trespassees
No duty traditionally
Rowland v. Christian
Broken faucet injures liscencee (guest)
- Established duty of reasonable care to all entrants
- Whether a condition on your land might foreseeably cause injury
Special Relationships
Duty to Rescue
- Parent-child
- Teacher-student
- Employer-employee
- Hotels-guest
- Common-carrier-passenger
o E.g., bus, train, plane - Business-invitee
- Hospitals-patient
- Landlord-tenant
- Custodian-custodee
o E.g., jailor-inmate
They have a superior ability to protect within their care
Why?
Duty to rescue (Exceptions)
Generally no duty
- Creating P’s peril regardless of fault * (Accidently bump into the water when running down pier)
- Creating a continuing risk of harm (Hitting a deer on the highway, leaving it on the road)
- Voluntary undertaking to act (Drunk girl throwing up on coach)
- DOES NOT INCLUDE landowner - guest relationship (Podias - guy shot himself)
Accidently bump into the water when running down pier
Special Relationships
Duty to protect a victim from an attack on 3rd party
Generally no duty
- School - Student ( Sexually assaulted students at school = Duty)
- Hotel - guest
- Legal and voluntary custodians ( parent - child, Prisons)
- Employee - Employer
- Common carriers/passengers
- Custodians w/ superior ability to protect (hospital - patient, nursing home - resident)
- Landowners & businesses
- Landlord - tenant
Why?
Least cost avoider - they have special knowledge of the dangers
Foreseeability tests
Duty to Protect from 3rd Party
Modern
- Prior similar incidents
- Totality of Circumstances
- Balancing test (ToC ++) - Similar to B<PL
California - Duty to Protect from Harm
- LL has duty to tenants
1. To adopt reasonable security measures
2. To maintain those security measures
3. to warn about criminal activity - LL to protect from dangerous tenant
- Dangerous dog
- Threatening tenant behavior
Special relationships
Duties to Control
- Halfway houses - Prisoners (Dudley)
- Employers/Employees - w/n scope of duties
- NO probation officers
- NO spouses
- NO children UNLESS prior incidents or they aid the child in commiting the harm (buying kid a gun)
- Medical professionals - Tarasoff established duty of medical professionals (therapists)
Gregory v. Cotts
Alzheimers caretaker case
o Alzheimer’s patient bumps caregiver while she was washing dishes and a knife cuts her
o This is Primary AoR, where ∆ (Alzheimer’s patient) could not be made to be more careful/less risky
IIED
A person who engages in:
* Extreme and outrageous conduct
* intentionally or recklessly
* causes severe emotional harm
* is liable for the emotional harm
* Harm results
IIED
Extreme (Definition)
- at odds with social norms
- utterly inconsistent with someone elses role
- Coercive
- Exploiting someones vulnerability
IIED
Outrageous
- Repeated OR
- An abuse of power OR
- Directed at someone known to the D to be emotionally vulnerable
- Chanko (filming hospital death no IIED) versus GTE (horrible boss repeated abuse IIED)
NIED & Tests
D acted negligently & Suffers NO physical Injury
- Near misses
* Causes fear of life and has lasting emotional damage
* Impact - Actually touched slightly but NOT injured = emotional harm stemming from impact
* Zone of Danger - if placed in immediate risk of physical harm (CA test) - Bystanders
* Close relationship
* Present at the scene - must have witnessed or known it was occuring (rear view mirror)
* suffers emotional distress
Proves
* Physical manifestations
* Diagnosible conditions
NIED (Special relationships to Victim)
- Mishandling of dead bodies
- Doctor - mother patient (Doc has a contractual relationship to safely deliver baby) NOT Fathers
Loss of Consortium
- Spouse (or parent, depending on state) sues for their ED
- Death or serious injury
- Some states, children of deceased parents can recover but not in CA
Strict Liability (Definition)
Type of activity subject to strict liability
* D is liable for any and all harms
* regardless of level of care excercised
SL substitutes for duty and breach but still must prove causation
Strict Liability Activities
- Livestock
- Animals w/ dangerous tendancies
- Wild animals, but not zoos
Rylands v. Fletcher
Millpond collapses into mine
- Decided to open a mill in mining area
- The water from mill pond collapsed
- Under negligence theory B<PL, P could recover but if B>PL then costs shift to P
- However, under SL the D is liable
Policy goals of SL
- Deter risky activities
- Least cost avoider
- D can insure losses
Strict liability
Wild animals
- The wild animal is an animal that belongs to a category of animals that have not been generally domesticated and that are likely, unless restrained, to cause personal injury AND
- The injury is connected to the wild characteristic of the animal
Abnormally Dangerous Activities
(1) Activity poses a foreseeable, highly significant risk even with reasonable care AND
(2) Uncommon activity, and the harm is one that is of the type posed by the danger.
Case: see Dyer (blasting hit house = SL)
Manufacturing Defects
- Proof of defect
1. * 2d: product unreasonably dangerous according to consumer expectations
2. departed from its intended design regardless of level of care - Product was defective when it left D’s control
- The product defect caused the P’s injury
Case: Coca Cola bottle explosion
Design Defects
- Product that is designed in a way that gives rise to inherent risks; not just in one product, but a bad risk in all of them
- Manufacturer or seller can be held liable
Policy reasons
1. Can esure the product is safe by putting pressure on company
2. may be the only D that can be sued (think China)
3. Spread the loss to other consumers
4. They can indemnify the manufacturer for costs
Design Defect Tests
Consumer Expectations Test
Failed to perform as consumer would expect when used in foreseeable manner (Jeep rollover)
- Was the product designed in a way to protect against foreseeable misuse
Design Defect Tests
Risk Utility
Assess
* (1) Likelihood of injury
* (2) Gravity of danger
* (3) Mechanical feasibility of the alternative design
* (4) Economic feasibility of the alternative design
B<PL
Case: Knitz (die press finger cut = DD)
Design Defects test
RU/RAD
Design defect renders product unreasonably dangerous
- Risk Utility: Assessing utility of the product and the risk involved in its use
- RAD: DD to exist, there must also have been a safer alternative design
- Prevented or reduced risk of injury W/O substaintially impairing product utility AND doesnt introduce greater danger
- Economically and technologically feasible at the time the product left D’s control
- technologically possible
Case: Genie - Forklift tip over
Design Defects
CA Approach
Can choose either
1. Consumer expectations
2. RU/RAD
Failure to Warn (Definition)
Inadequate warnings or instructions led to
* foreseeable risks of harm posed by the product
* Could have been reduced or avoided by reasonable instructions or warnings
* ommission of instructions or warnings renders the product unreasonably safe
NO obvious dangers
* knives, saws, axes
See Cases: Tent Heater - adequate warning of type of harm, Meat grinder - no warning not to use w/o safety guard
Design Defects
Heeding Presumption
A rebuttable presumption that an adequate warning would have prevented P’s injury
Turns on “but for” - if the product would have had a warning, would the P have actually heeded the warning
