1L Torts Outline PDF

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Outline of 1L Torts...

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Torts Outline Fall 2016 Spenser Clark “And that’s all I have to say about that”

Table of Contents: 1. Intentional Torts- 3 a. Trespass to Person- 3 b. Trespass to Land- 4 c. Trespass to Chattels- 4 d. Conversion- 5 e. False Imprisonment- 5 f. Intentional Infliction of Emotional Distress- 6 2. Defenses to Intentional Torts- 7 a. Insanity- 8 b. Self Defense- 9 c. Defense of Property- 9 d. Necessity- 10 3. Negligence- 10 a. Setting Standard of Care- 11 b. BPL Test- 12 c. Customs- 13 d. Negligence Per Se- 16 4. Proof of Negligence- 18 a. Res Ipsa Loquitor- 18 i. Medical Context- 22 5. Plaintiff’s Conduct and Defenses for Defendant’s Negligence- 20 a. Contributory Negligence- 20 b. Last Clear Chance- 22 c. Assumption of the Risk- 23 d. Comparative Negligence- 24 e. Causation- 23 f. Joint and Several Liability- 25 g. “But For” Exceptions- 26 h. Proximate Cause- 28 i. Affirmative Duties- 32 j. Duty of Owners/Occupiers- 33 i. Trespasser, Licensee, Invitee- 34 k. Duty Based on Reliance- 36 l. Privity- 36 m. Special Relationship- 37 n. Respondeat Superior/Vicarious Liability- 38 6. Damages- 38 a. Compensatory- 38 b. Punitive- 39 c. Damages Issues- 39

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Intentional Torts In cases of intentional harms the risk of mistake usually falls on the party who makes it; you don’t get to make a mistake Trespass to Person 1. Battery a. Rule: In order for a person to be liable for battery it must be shown that there was: i. Intent to Touch 1. No intent to harm is necessary ii. Touch iii. No consent b. Restatement: An actor is subject to liability to another for battery if: i. He acts intending to cause a harmful or offensive contact with the person of the other or a third party and ii. A harmful contact with the person directly or indirectly results c. Case: i. Vosburg v. Putney: D kicks P in the shin and P becomes sick and injury to the bone resulting in amputation 1. Wrongdoing is liable for all injuries resulting directly from the wrongful act, whether they could foresee the injuries or not 2. Offensive Battery a. Rule: The defendant must intend an offensive contact; it is not necessary for an actual harm to occur i. Actions in this category are done maliciously, willfully, wantonly, and causing outrage and indignity b. Restatement (Second) §18: Offensive Contact: An actor is subject to liability to another for battery if i. He acts intending to cause a harmful or offensive contact with the other person or third party and ii. An offensive contact with the person of another directly or indirectly results c. Case: i. Alcorn v. Mitchell: At a trial for trespass between the P and D, the D spat in the face of the plaintiff 1. Court holds that this is offensive battery and orders punitive damages 3. Assault a. Rule: An actor is subject to liability for assault if i. He acts intending to cause: harmful contact, offensive contact, or imminent apprehension of a contact AND ii. The other party is put in imminent apprehension b. General Notes: i. Assault is usually determined by the apprehension felt by person assaulted

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1. Restatement §24: Not necessary for person to believe that actor will follow through with the attack, just that apprehension is present ii. Words are generally not enough to sustain assault claims iii. A threat is only an assault if the threat presented is imminent iv. No touching required for assault c. Case: i. Tuberville v. Savage: P and D got into an altercation and P put his hands on sword and said “if I were not assize-time, I would not take such language from you.” 1. Rule: In order for a person to be guilty of assault he must have intended to commit the assault Trespass to Land 1. Rule: For trespass a plaintiff needs to show: a. Unauthorized entry into land of another b. Intent to be on land c. No consent 2. Case: a. Dougherty v. Stepp: D entered onto the unenclosed land of the plaintiff and began claiming it as own i. Rule is that the purpose does not matter, the only thing that matters is that land belonging to someone else and you have intent to be there (i.e.: not accidental/pushed on land) Trespass to Chattels 1. Rule: In order for a person to be liable for trespass to chattels there must be: a. Intentionally b. Interfering with another’s property c. Causing injury i. Note: No harm must be shown 2. An interference with possession 3. Restatement § 218: A person is subject to liability for trespass to chattels when the meddling is... a. Harmful to the possessor’s materially valuable interest in the physical condition, quality, or value b. If the possessor is deprived of the use of the chattel for a substantial period of time c. Some other legally protected interest of the possessor is affected 4. Cases: a. Blondell v. Consolidated Gas Co.: D wanted to attach governors to the plaintiff’s gas meters that would regulate the flow of the gas. Question for court was whether the defendants had made an unauthorized use of the plaintiff’s property. i. Court ruled that there was trespass even though harm did not result ii. Majority rule says that harm must take place

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b. Intel Corp. v. Hamidi: D sent emails criticizing the plaintiff’s employment practices to current fellow employees using the company’s email system. D argued that his actions never deprived P of the use of its computers; P claimed that there was damage. i. Rule: Computer servers are personal property, but in order for an interference to be considered actionable the act must cause some injury to the chattel or the plaintiff’s right to it ii. Court holds that no interference or trespass because the employer wasn’t deprived of access and use of the system c. eBay v. Bidder’s edge Inc.: P brought a suit against the defendant for deploying internet spiders to search P’s online database and post bidding updates on its own website. i. Was there trespass here: Court says yes because D’s spiders had the potential to impair operation of P’s website 5. Remedies: a. Damages are limited to the reduction in value of the chattel while it was gone; full price only awarded in cases of complete destruction Conversion 1. Rule: In order for a party to be liable for conversion there must be: a. Intentional b. Treating another’s property as your own i. If you destroy the person’s property it will fall under this category 2. Case: a. Poggi v. Scott: The plaintiff rented basement for the storage of wine barrels. The property was sold by the old owner to the defendant; D then allowed the sale of the barrels to two men who claimed they were empty, but knew they were filled with wine i. Rule: In actions for conversion, knowledge that the property belonged to someone else and intent to cause injury/harm does not matter. All that matters is the unwarranted interference with the property of another; intent to take, not intent to harm. ii. Court held that there was conversion 3. Remedy a. Originally the remedy given was forced sale and many jurisdictions will allow this. Increasingly though the courts have allowed people who innocently converted property to return it, if it has not been severely damaged and pay for the loss of the interim use and repairs False Imprisonment 1. Rule: In order for an act to constitute false imprisonment there must be: a. Imprisonment b. Intent to imprison 2. The area in which someone is contained can be large and does not have to be stationary a. There are limits- cant claim to be imprisoned within the rest of the world b. Movable and flexible- there does not need to be four walls, boundaries can be humans (security guards)

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c. Question is if jury can reasonably find that there was a prison 3. If the plaintiff has a means to escape or is free to leave at any time there is no false imprisonment 4. Defenses: a. Consent b. Honest Belief that imprisonment was necessary (not often) c. Defense of property d. Merchant’s privilege: Defense only available to a merchant who suspects that an item belonging to their place of business is being stolen i. Elements of this defense 1. Reasonable length of time 2. Reasonable manner 3. Reasonable grounds to believe that the good was stolen 5. Court’s Test for FI a. Person must be restrained within some boundary decided by an outside/exterior power, and must not have an alternative means of going and exercising his will 6. Cases: a. Bird v. Jones: P wanted to go into enclosed part of the public highway that was being used as seating for a boat race. He was stopped from going into enclosure by D and after a brief struggle climbed in anyways; two policemen came and stopped the plaintiff from going into area i. Court held that there was no false imprisonment because there were means to escape b. Whittaker v. Sanford: P was given complete freedom of movement on the defendant’s yacht, but when she was allowed to go on shore she was not given the freedom to roam or to remain there c. Coblyn v. Kennedy’s Inc.: P was shopping in D’s store and took off his ascot while he was trying on clothes. After paying for items P left store and put ascot back on, D’s employee witnessed it and asked him to come back into store i. Court held that there was false imprisonment because he was forced to submit out of fear and actions of the employee (forced back into store, grabbing of the arm, demands that P see the manager, etc.) ii. Rule: In order for there to be false imprisonment a person does not have to be physically restrained. Enough for a physical power to be used to get party to submit. Intentional Infliction of Emotional Distress 1. Rule: In order to be held liable under this tort there must be a. Extreme and outrageous conduct that is b. Intentional and reckless and c. Causes severe emotional distress i. Does not matter if person intended resulting harm 2. Restatement § 46: One who by extreme and outrageous conduct intentionally and recklessly causes severe emotional distress to another is subject to liability for such distress and any bodily harm that results.

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a. An actor is also liable to any member of the person’s immediate family and any third party who is present at the time and suffers distress; does not matter if that distress results in bodily harm b. The conduct must be really extreme and outrageous, and there must be intent to inflict emotional distress or malicious conduct i. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions and other trivialities 3. Cases: a. Wilkinson v. Downton: The defendant played a practical joke on the plaintiff and told her that her husband had been in a serious accident and was in the hospital. As a result of the statement the plaintiff experienced violent shock to nervous system and other injuries i. Court held that there was emotional distress because the act was willful and malicious b. Bouillon v. Laciede Gaslight Co.: The defendant’s employee (meter reader) pushed his way into front door of the plaintiff’s apartment, letting in cold air, and exchanged rude remarks with her nurse. P heard remarks and that evening suffered chills; the following day she had a miscarriage and suffered other permanent injuries

Defenses to Intentional Torts Consent 1. Rule: a. Minors- consent must be retained from the child’s guardian, except in emergencies b. Adult incompetents- substituted consent must be sought because they do not have the capacity to make decision for themselves c. Consent can be inferred from conduct i. Objective v. Subjective understandings of consent: Typically an object approach is followed because we don’t know a person’s thoughts. If it looks like consent it can said to be consent 2. Reasoning: Everyone has a right to complete immunity of his person from physical interference of others and has a right to say whether or not they want something to be done. 3. Cases: a. Mohr v. Williams: The plaintiff consulted with the defendant-physician about trouble with her right ear. D performs surgery but during surgery finds that the other ear is in bad shape; operates on left ear instead. i. Rule: Consent must be sought whenever a new form of touching arises b. Scholendorff v. Society of New York: Emergency rule- a physician is not liable for an assault and damages when in an emergency case and the plaintiff is unconscious and it is necessary to operate before consent is obtained c. Hudson v. Craft: P, an 18 year old boy, participated in an illegal fight hosted by D. P sustained injuries from his opponent and sued the promoter (the defendant) i. Rule: In cases where the defendant knowingly commits a wrong and the plaintiff is unable to appreciate the consequences of his consent, the defendant is liable

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for any resulting damage to the plaintiff. CONSENT DOES NOT RID HIM OF LIABILITY ii. Public Policy Limits on Consent in Athletic Cases: 1. In this case an illegal boxing match is a breach of the peace. Thus the participating parties get to sue each other for battery; the fact that they consent to the fight matters little in precluding liability 2. You cannot consent to breach of the peace 3. Paternalism argument: The parties the public policy is protecting cannot understand/appreciate the consequences of their consent so we have to protect them. d. Hoofnel v. Segal: P signed consent form to perform all necessary steps to protect health including the removal of reproductive organs. P stated orally previously that she didn’t want uterus removed. Removal was necessary and took place. i. Rule: Written consent forms can override other communications ii. Reasoning: Not upholding the consent form is unfair to the physician and makes him vulnerable to other suits that might arise if he did not have consent and thus could not take action to perform a necessary procedure. Additionally it is more cost efficient and limits the amount of litigation if there is a consent form to refer to 1. Consent forms not always upheld, but usually are 4. Sports a. Some courts suggest that the only touching you consent to in sport are those within the rules of game and you cannot intentionally or recklessly hit someone; however not completely true i. The guiding principle is that you are allowed touching to whatever extent touching is within the ordinary course/custom of the game; distinctions about what is reckless or intentional do not matter as much. Insanity 1. Not generally a defense to intentional torts 2. Cases a. McGuire v. Almy: P was the defendant’s caretaker (d was insane) and was employed to tend to D on 24-hour basis. D had a violent attack and P was struck with a broken piece of furniture and suffered injuries. i. Rule: When an insane defendant is capable of entertaining and does entertain the intent to strike and cause injury he may be held liable for tort ii. Public Policy argument for not having an insanity defense: 1. An insane person should pay for damage he does 2. Allowing insanity defenses introduces the kinds of difficulties faced in criminal trials to civil litigation 3. Insane people are not held liable for torts involving malice or defamation because they are not capable of acting in those manners 4. Argument against imposing liability for insanity

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a. The party can still be held liable because in order to claim self-defense there has to be a reasonable belief that harm is coming. If a reasonable person would not believe there is harm then the fact that you are under a delusion doesn’t matter (objective test) 5. Defense for someone who is insane and commits harm: a. P consented by assuming the risk of working with the defendant i. Doesn’t often work 6. Cases involving automatism a. These cases can be distinguished from insanity cases because here, if a defendant can prove that he was unconscious at the time the injury occurred he would not be held liable for an intentional tort because touching requires a conscious act. This does not preclude him from being liable for other torts Self-Defense 1. Rule a. The amount of force you use cannot be disproportionate to the harm threatened to you i. You do not have to wait until the blow actually hits in order to strike back, but you must be in imminent harm ii. You may defend a third party if that person is in imminent harm 2. Cases: a. Courvoisier v. Raymond: D’s shop was broken into and he retrieved a gun to scare the intruders away. The shots caught the plaintiff’s attention and he went over to diffuse the situation. D fired at plaintiff because he was coming at him (Police officer case) i. Rule: If a defendant has a reasonable cause to believe the plaintiff poses a threat to his life, any resulting injury may be considered to have taken place in selfdefense and the defendant cannot be held liable (Boston v. Muncey) b. Morris v. Platt: The accidental harming of an innocent bystander by force reasonably intended in self defense to repeal an attack by a third party is not actionable 3. Hypos: a. A strikes B, B strikes back with proportionate force, A strikes back, B sues A, A can't claim self defense b. A strikes B, B strikes with excessive force, A strikes B with excessive force, B sues A, not gonna win Defense of Property 1. Rule a. One may not use force that can cause death or serious bodily harm to defend property unless you meet one of the exceptions below i. Many courts have held that you can threaten more force than you can actually use to make someone leave your property 2. Cases a. Bird v. Holbrook: D set up a spring gun to protect his property and help identify the thief who stole tulips from property. P went into yard and triggered spring gun and was severely injured i. Rule: Allowed to use spring gun if notice is given. THIS IS NOT MODERN RULE.

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ii. Reasoning: It is inhumane to catch someone by means that would endanger his life or harm him and it is the purpose of English law to uphold humanity iii. Exception: When can you use spring gun or dangerous device? 1. Restatement § 85: When the trespasser’s intrusion is such that an actor, were he present, would be privileged to prevent or terminate it by the intentional infliction of such harm b. You can use the amount of force that would be allowed if person was physically present to protect property Necessity 1. Rule a. A person has a right to use another’s property out of necessity, but the person who uses the property has to pay for the damages done to the property that result from his using it 2. Cases a. Ploof v. Putnam: The plaintiff and his family were caught in a storm while sailing in their boat. Plaintiff attached the boat to the dock of the defendant to avoid injury; defendant’s servant untied the boat while the family was still inside i. Rule: Where there is a necessity to go onto the property or interfere with personal property of another, the defendant will not be liable for trespass ii. Reasoning: We want to contribute to the preservation of human life b. Vincent v. Lake Erie Transportation Co: D’s steamship was moored to the plaintiff’s dock when a storm appeared in the harbor. The crew of the ship kept the lines attaching the vessel to the dock tight and replaced them when they broke. The ship was lifted and thrown against the dock by the waves, causing damage to the dock. i. Rule: If you use another person’s property out of necessity you must pay for any damages resulting from your use

Negligence Negligence- the failure to exercise the standard of care that a reasonable person would have exercised in a similar situation 1. Elements a. Duty: Reasonable care not to harm other people by your actions b. Breach of Duty: Not performing the required duty of care c. Causation: The failure to use reasonable care is causally connected to the plaintiff’s harm i. Cause in fact 1. “But For” test ii. Proximate cause d. Damages: Was the plaintiff harmed? 2. Intro a. Division of Authority: Between the judge and jury on who decides if a person is negligent or not

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i. Judge and appellate court decides whether a reasonable jury could have found negligence given the evidence and instructions ii. Jury applies the law to the facts at hand and issues a verdict on whether a person acted negligently Setting the Standard of Care (Breach of Duty) 1. The reasonable person test (fairness) a. Rule: A party is guilty of negligence when he fails to act with the or...