Short Tort Outline PDF

Preview

Summary

Short version of final outline for Torts w/ Barbra Stark...

Description

Short Tort Outline:  Introduction:  Civil Action between two people: that causes harm (physical, emotional etc.)  Three categories: o Intentionally invaded interest (intent required) o Strict liability (no fault claims); abnormally dangerous activities o Negligence** (impose liability failed to behave as reasonably prudent person)  How to approach Tort Problems: o look at elements of prima facie case (pl must prove every single one, if doesn’t prove one then no liability, pl will lose) o If pl can prove every element  is there any affirmative defenses that the def can use? If yes, then def may win (def must prove); if no, then pl will succeed. o Elements  defenses  liability yes or no  Vicarious liability, contribution, comparative fault  Intentional Torts:  Principles that apply to all intentional torts: every one involves a volitional act done with intent o Volitional act: act has been done under the def’s control o Intent: synonymous with purpose; two situations where intent gets tricky:  Person doesn’t wish or desire to bring out outcome, but knows with substantial certainty will occur  Transferred intent: two ways it can occur: victim to victim, tort to tort (Carl the high jumper first intended trespass (tort 1) then committed battery by landing on neighbor (tort 2), intended victim was owner of land (victim 1) but really was fiancée he landed one (victim 2). Baska pg 6.  Dual v. Single Intent: intent to make contact (single intent; Wagner pg. 5), intent to contact AND intent to harm or offend (dual intent; White pg. 5).  Battery: always need intent o Two key elements: 1) intent to touch 2) harmful or offensive touching  Harmful or offense touching: unpermitted (offensive)  keep in mind super sensitivities unless def knew them in advance; MUST HAVE CONTACT (or not battery)  With the pl’s person: pl’s person, not confined to pl’s body parts only anything physically connected to the person may also count (plate in hand case) o Important Cases to remember: Synder v. Turk (pg.3); Cohen v. Smith (pg. 3-4); Garret v. Dailey (pg.4) (substantial certainty rule)  Assault: o Elements: 1) intent to place victim in apprehension of immediate harmful or offensive contact  Apprehension: reasonable and awareness of immediate touching (don’t confuse apprehension with fear or intimidation) 1



Immediate contact: words alone generally do not have enough immediacy, words coupled with conduct. o Important Cases to remember: Cullison v. Medley (pg. 7).  False Imprisonment: always need intent to unlawfully confine o Two basic elements: 1) sufficient active restraint 2) bounded area  Sufficient active restraint: look at facts; threats to use force are enough, some cases inaction is enough if understanding that def would act for the pl’s benefit (Whitaker), generally pl needs to be aware of confinement at the time of it happens, length of time for confinement is irrelevant (to prove prima facie case, may come up for damages); confinement by threats.  Bounded area: freedom of movement is restricted, limits  more than a mere inconvenience, area is not bounded if there a reasonable means of safe escape that the pl knows about (secret panel in room wouldn’t work) o Important cases to remember: McCann v. Walmart (pg. 8).  Intentional Infliction of Emotional Distress: newest tort, need intent o Two basic elements: 1) outrageous conduct and 2) damages  Outrageous  must be very high, not just insulting, not expected to deal with everyday  Three ways to make conduct outrageous: 1) repeated conduct 2) abuse of power by def 3) knowledge of pl’s vulnerability.  Damages: don’t need to show physical injury, must be severe/substantial emotional harm.  Important twists to prove intent: 1) need to aware pl can prove intent by showing recklessness on part of def (reckless disregard of high probability that conduct will cause emotional distress to another person) 2) concept of transferred intent is normally not available to prove this tort (can prove directly to pl like a close relative)  Important cases to remember: Chanko v. American Broadcasting Companies Inc (pg 9495); extreme and outrageous conduct, not to be found here, does not satisfy exceedingly high legal standard, NY court has not accepted any claims; GTE Southwest Inc v. Bruce (pg. 95); Pattern and context (relationships between parties), affirmed IIED; Roth v. Islamic Republic of Iran (pg. 96) (terrorist attack exception to presence prong of test for IIED recovery)  Three Intentional Torts involving Property:  Trespass to Land: one who directly enters land or causes entry intentionally (above or below the surface that the landowner can make reasonable use of o Two elements: 1) pl must prove ownership to land and 2) intention and tangible invasion instruction by def onto the land that 3) harms pl. interest in exclusive possession (malicious intent not required)  Act of physical invasion: no requirement that def know he has crossed a property land (intent to move forward by conscious decision); don’t need to personally go on property, if you propel an object onto land that counts (don’t confuse with intangible/ non-physical invasion  smells/lights; NUSIANCE 2



separate tort)  doesn’t include nonvolitional trespassers (beyond your control, i.e. drugged and dragged). Land: not only surface of property, but also subsurface below and air space above, so long at a distance where landowner could make reasonable use of space

 Conversion: o Elements: 1) the def. must intent to exercise substantial control over something and interfered with owner’s ability to control it.  Substantial dominion: all matter of how serious the interference is, interference should be serious enough to justify imposing liability (ALI) factors important include:  (a) extent and duration of the control  (b) defendant’s intent to assert a right of property  (c) defendant’s good faith  (d) harm done and  (e) expense or inconvenience caused o Some damage to property  trespass to chattel o A lot of damage/ complete destruction  conversion o Damages for conversion  measured by the value of the chattel at time of conversion, can fluctuate (market, stocks), some courts permitted pl to recover highest market value of chattel within reasonable time, some seek return of the chattel (replevin)  Trespass to Chattel: o Elements: 1) intentionally and without justification or consent 2) physically interfered with use or enjoyment of pl’s personal property and 3) pl harmed.  Usually only involved tangible things, modern cases more and more to do with technology. o Important cases to remember: School of Visual Arts v. Kuprewicz (pg. 10).  Affirmative Defenses against Intentional Tort Claims:  Consent: o Consent is a defense to ALL intentional torts o Things to consider: 1) did pl have capacity to consent (child, coerced so invalid, mentally impaired, fraud or mistake then invalid) 2) consider whether consent expressed or implied.  Expressed consent: words were used with capacity  Implied consent: custom or usage, looking at pl own conduct (reasonable def’s test, don’t take into account of pl’s subjective views, def can exceed the scope of tort privilege)  Self-Defense: o Person is justified to use reasonable force to prevent what she reasonably believes to be a threat of imminent harm against her 3



Reasonable belief: if def herself she was under attack, and if reasonable person would also be threatened in that situation (both subjectively and objectively to reasonable person), subjectively  Reasonable force: deadly force (firearms) usually considered reasonable, response must be proportionate to threat, objectively  Retreat necessary: no duty to retreat (ordinarily), in most cases can stand ground, courts are divided duty to retreat before using deadly force (modern take do need to retreat unless in own home)  Defense of others: o Person is entitled to defend other persons from attack in the same manner/condition as they would defend themselves  Would other person be able to assert self-defense? Put yourself in the shoe of those you are trying to protect then use same rules you would apply for selfdefense.  Issue of mistake: if mistake was reasonable can assert defense of others  Defense of property: o Basic rule: reasonable force to protect his real or personal property  Deadly force can never be used to protect property alone (don’t confuse self-defense with defense of property)  Katov v. Briney: spring gun to stop burglars from breaking into unoccupied house  NOT ALLOWED. o Quick Tips: application of hot pursuit doctrine to recapture property (can only use reasonable force; Brown); detention of suspected shoplifters (shopkeeper privilege  can detain in reasonable manner for reasonable amount of time, tort of shopkeeper can be false imprisonment and then his defense is defense of property, no deadly force; Gortarez)  Consent: subjected willingness v. implied consent o Does pl have the capacity to consent? Minor, incapacity, power relationships (Robin v. Harris pg. 13). Limited use.  Defense of Necessity: o Can only be used as defense for trespass to land, trespass to chattel, and conversion  if it isn’t property tort can’t use necessity in response o Public necessity: being done for the benefit of a lot of people, unlimited and unqualified privilege against tort action. UNLIMITED PRIVILEGE  Fire raging that will destroy whole city, mayor orders destruction of whole row of houses (mayor defending a whole lot of people against imminent public disaster) o Important cases to remember: Surroco v. Geary (pg 14.) o Private necessity defense: the def reasonably believes that action is necessary to protect herself or handful of other people, do have privilege to interfere with someone else’s property, privilege is qualified in that you do need to pay for any damages that you cause. 4

o Important cases to remember: Ploof v. Putnam (pg. 14); Vincent v. Lake Erie Transportation (pg. 14).  Negligence:  Elements of Negligence: o 1) Duty of care: pl must establish that def owed him a duty of care o 2) Breach of duty: pl need to show that def violated relevant standard of care o 3) Causation: actual/ factual o 4) Causation: proximate o 5) damages  Duty Element o Imposing risk of harm, degree of risk depends on risk you engage in (“risk rays emanate from you and how far they extend to the real world”), principle of duty  before you act must take precautions to dampen your risk rays to bring closer to your body (how much effort do you need to take to reduce risk rays and who should you be mindful) o Two basic components of duty: 1) to whom you owe a duty? 2) and how much care must you take?  To whom you owe a duty of care: owe a duty of care to all people who are foreseeable victims from your failure to take precautions  How much care is owed? How many precautions do you need to take? The answer is always you must take the amount of care that a reasonably prudent person would take under the same/similar circumstances.  Neutral in physical characteristics, but in behavior “nerd”  Reasonably prudent person standard is objective/rigid, not kind to def (inexperience/ intelligence doesn’t matter)  Mentally disabled people are held to the same reasonably prudent person standard  Superior skill or expertise  some subjectivity, juries can consider these characteristics in evaluating def’s conduct, individual with the same skill do in those circumstances  Same with physical handicaps  some subjectivity allowed, what would reasonably prudent person with the same physical handicap do (i.e. blind/deaf) o Important Cases to remember: Stewart v. Motts (pg. 16), care varies according to the circumstances/conditions must equal degree of danger involved; Posas v. Horton (pg. 16) sudden emergency instruction; Creasy v. Rusk (pg. 17) mental disabilities same standard as reasonable prudent person. o Special Duty Standards:  Children: Basic Rule  child must exercise same reasonable duty of care that child of the same, intelligence, or experience would exercise under the circumstance (child under the age of 5 incapable of negligence)  much more subjective than normal standard of care; exception: child will be held to adult standard if engaging in adult activity (i.e. driving a car) 5

 

Important Case to remember: Stevens v. Veenstra (pg. 18). Professional Malpractice Cases: Standard  person who holds themselves out as a learned professional, required to possess and exercise the knowledge and skill of ordinary member of profession in good standing  Courts regularly defer to the professionals to set the standard (if ordinary professional would of made mistake, no negligence), expert witnesses sometimes necessary to set the standard (not always  i.e. if doctor makes egregious mistake)  Doctrine of informed consent: if doctor does not inform patient of risk of surgery, doctor can be liable for negligence (ordinary professional would have informed of risks) o Owners and Occupiers of Land: duty owed to owner/occupier of land when someone injured on her property, what is the duty owed?  Source of the injury, duty standard may be different depending on if the injury is caused by affirmative activity on land or instead if injury resulted with encounter with static condition on land; o Trespasser: any person who has no legal right to be one another’s land and enters land without landowner’s consent  Landowners do not owe a duty of reasonable care to either trespasser  only to avoid reckless conduct, applied only when the landowner has not discovered or received notice or imminent danger to the entrant; fails to act reasonably in the face of this known danger to an entrant guilty of willful/wanton misconduct (duty to warn); Child trespassers/ attractive nuisances (pg. 71)  Important cases to remember: Gladon v. Greater Cleveland Regional Transit Authority (pg. 69-70). o Licensee: most cases simply a social guest (people you Like); someone who is on land for limited amount of time, neither trespasser or invitees; some statues broaden duty to social guests. No reasonable care duty, only duty to not harm by intentional or willful or wanton misconduct. Landowners might have to exercise reasonable care after discovering both their presence and some immediate danger to them; landowner owes licensee a duty of reasonable care in carrying out activities on land, willful/ wanton rule protects landowners on conditions of land.  HOWEVER SEE  Modern trend to abolish these categories (abolish distinction between invitee and licensee, some states have even abolished trespasser categories), owe reasonable prudence to all landowners and occupiers  Rowland v. Christian (pg. 71); abolishes common law duty and substitute general reasonable care  Scruti v. City of New York (pg 72); status on land is a factor in deciding what constitutes reasonable care (jury), NY abolished tests.  Large number of states  (almost 20), retained invitee, trespasser, licensee categories, but extend duty of reasonable care to both invitees/ licensees These states retain limited duty to trespasser rule even though dropped invitee/licensee distinction. 6

o Invitee: anyone comes onto premises held open to the public at large or for business visitors (does not include police officers or firefighters  treated as licensees); duty owed? Activity on land  reasonable care; static condition  duty to protect if condition is concealed that you knew about or could have learned about by reasonable inspection; owed the most duty of care (duty to inspect); duty of reasonable care to all invitees for all conditions o Tips for landowner duties: 1) in case involving static conditions, def can satisfy obligation imposed by law by making condition safe or def can give a warning. 2) child trespasser that get injured on land, special concern of children standard of care is always reasonable prudence (for conditions), attractive nuisance doctrine o Open and obvious hazard: obvious when both condition and risk are apparent to and would be recognized by a reasonable man in position of visitor exercising ordinary perception  No duty of landowner to any entrant except if landowner expects distraction  Important case to remember: Kentucky River Medical Center v. McIntosh (pg. 72-73) no open and obvious because distracted EMT o Recreational Use statutes: limit liability in order to encourage landowners to make land available for recreation in a world becoming increasingly crowded, still owe duty of care to private guests, statues protect public entities that maintained negligently that land was already public, broadening of government immunity, VERY HIGH STANDARD to win case (pg. 74) o Landowners duty to tenants: most statutes now set standard to landlords to keep common areas safe (may even be given negligence per se affect) (pg. 74)  Negligence per se: pl attempts to set the duty standard of care by using a statute o Pl alleges negligence in case, to establish the duty element uses pertinent statute, when can pl borrow statute to use it to set the duty standard?  Only when pl can satisfy the two part test: 1) pl has to show that the statute is meant to protect a certain class of people that the pl is a part of (class of person) 2) pl also how to show that the statute is meant to protect against the type of risk or harm that is basically the type of harm in her case (class of risk) o The pl who fails to borrow statute, can still go forward and litigate using normal reasonably prudence. o If pl is successful in borrowing statute and jury goes ahead and proves that statute is violated  negligence per se  Exceptions: 1) if compliance with statute would be more dangerous than violating statute, than violation not negligence per se (excused) 2) compliance is impossible, also Restatement Third of Torts exceptions (pg 120). o Important Cases to Remember: Marshall v. Southern Railway (pg. 19); Chaffin v. Brame (pg. 19); Martin v. Herzog (pg. 19)negligence as a matter of law; O’Guinn v. Bingham County (pg. 20); class of person/class of risk question  jury; Getchell v. Lodge (pg. 21) emergency exception  jury fact question  Negligent Infliction of Emotional Distress: o Issue: Does the law impose duty to avoid injuring people’s psyche? 7

o General Rule: Normally do not owe a duty to avoid upsetting other people  Exceptions: 1) def exposes to use to risk in the first place and then you suffer physical manifestations from the distress; zone of danger can recover  near miss situation. 2) bystander can recover NIED if not within zone of danger if that person is at the scene of the accident and had close relationship with victim of the accident; most states still require physical manifestations for bystanders o Important cases to remember: Stacy v. Rederiet Otto Danielson (pg. 97); zone of danger; Mitchell v. Rochester Railway Co (pg. 97); fear not enough, impact rule no physical touch; Catron v. Lewis (p. 98-99); Not in zone of danger, never placed in physical risk, reasonable fear of own safety, element of shock, differ from Stacey/ Mitchell negligence conduct affects other person (not person harmed), not a close family member  Breach of Duty:  General Rule: a pl in a negligence action in order to prove breach of duty normally has to point to specific conduct that is alleged to violate the duty standard (talk about exactly what the def did wrong  driving drunk or really fast) o How do we establish that certain conduct is sufficiently bad to violate duty standard? o Foreseeability: of some type of harm is central to issue of whether a person’s conduct breached the standard of reasonable care. Actor is negligent only if his conduct created a foreseeable risk and the actor recognized or a reasonable person would have recognized it** question of fact for the jury (pg. 23). o Reasonable person in defendant’s circumstances would risk/ not have foreseen any damage  defendant is “simply not negligent” (pg. 23).  Important cases to remember: Pipher v. Parsell (pg. 22); Limones v. School District of Lee County (pg. 23).  Unstructured Weighing of Costs and Risks: o Way to judge reasonableness of risks: (1) life v property (2) property v. more valuable property (3) treat other...