Torts Master Outline PDF

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Outline - Torts I. Intentional Torts Tort law has competing policies  Corrective Justice  Public Policy

A.

Fault i.

ii.

Tort law is premised on fault, or blameworthy conduct i. Strict liability is an exception as plaintiffs do not need to establish fault ii. Blameworthy conduct can be:  intentional conduct  negligence  strict liability

Cases i.

Van Camp v. McAfoos

B. Intent i.

ii.

Defined two ways i. Acted with purpose or desire to cause contact, (Mullins) or ii. Substantial Certainty Test  The tortfeasor does not have to specifically intend to cause a harmful or offensive contact, but they must only be substantially certain that their action will do so. (Garratt, White)

Doctrine of Transferred Intent i.

ii.

ii.

A intends to hit B but hits C. The intent to hit B is transferred to C. (Stoshak) Doctrine of Transferred Intent (between torts): If a person intends to commit one tort but commits another tort instead, the intent transfers to the actual tort committed.

Cases i. ii. iii. iv.

Garratt v. Dailey White v. Muniz Stoshak v. East Baton Rouge Parish School Cullison v. Medley

B. Extended Liability i.

A tortfeasor who commits an intentional tort is liable for all damages caused and all consequences of that tort, not just those intended or foreseeable.

B. Battery Intent and result requirements

1. Elements 1. An act by defendant 2. The act caused contact with the plaintiff (Mullins) 3. Defendant intended to cause harmful OR offensive contact (Cohen) 4. Contact was harmful or offensive

ii.

Cases 1

1. 2. 3. 4. 5. 6.

A.

Prosser v. Keeton Van Camp v. McAfoos Snyder v. Turk Cohen v. Smith White v. Muniz Mullins v. Parkview

Assault i.

Elements: i. ii. iii.

ii.

Reasonable apprehension of  Apprehension = anticipation, not fear.  Conditional apprehension works too an imminent contact  imminent = no significant delay, not immediate.  Plaintiff must be aware of imminent contact intent  can transfer -- intend a battery and end up committing assault because of bad aim

Cases i.

Cullison v. Medley

B. False Imprisonment i.

Elements: i. ii.

ii.

Intent to confine within boundaries fixed by the actor Actual confinement by the actor; victim must either know of the confinement at the time it occurs, or be harmed by it if they are unaware of the confinement  Confinement doesn’t have to be physical, just a belief that they can’t leave (stolen pants)

Cases: i.

McCann v. Wal-Mart Stores, Inc.

B. Torts to Property i.

Trespass to Land i.

ii.

Conversion of Chattels i.

ii.

Elements  intentional entry upon the land of another without permission or refuses to leave a. throw something, mistakenly get there, or have your invitation revoked Elements  Defendant must intends to exercise substantial dominion over the chattel that is owned by the plaintiff. a. Substantial dominion: Is met by theft of chattel, destruction of chattel, or by exercising a strong degree of control over the chattel. b. Degree is central to distinguishing between conversion and trespass

Trespass to Chattels i.

Elements 2



ii.

Cases i.

A.

Intentional interference, without justification or consent, with someone’s use or possession of property. (School of Visual Arts) a. This is a temporary deprivation

School of Visual Arts v. Kuprewicz

Defenses

Defendant must only disprove one element of an intentional tort to defeat a prima facie case First 4 defenses are based on plaintiff’s conduct

1. Self-Defense 1. Defendant must prove:  Reasonable person would have perceived a threat that required defendant to act; and  Defendant’s response was reasonable.  Use of Force - Proportional  You can use the same amount of force that is being used against you  Provocation does not justify force  Use of deadly force is limited if you’re able to retreat

ii.

Arrest and Detention / Shopkeeper Rule Generally Defense to false imprisonment A shopkeeper may detain a suspected shoplifter “on the premises” for a reasonable investigation. 1. privilege extends beyond premises (Peters v. Menard) b. If storekeeper reasonably believes in shoplifting, they can detain somebody for a reasonable period on the premises   

 Cases

a. Peters v. Menard

ii.

Defense and Repossession of Property  Generally a. You can threaten to use deadly force to protect the rights of your property and still invoke the privilege b. If you use deadly force or force likely to cause serious bodily injury to protect property then you will not be able to claim the privilege c. No harm no foul, but if something happens when you use an unreasonable amount of force, even if there is not an intent to harm then you will be unable to raise the privilege as a defense

 Cases a. Katko v. Briney b. Brown v. Martinez

ii.

Consent

 Actual consent (Express)

a. person agrees to the conduct (subjective)

 Apparent consent (Implied) 3

a. person appears to agree to the conduct by their words or actions (objective)

 Consent Defenses: a. Person lacks the capacity to consent b. Touching goes beyond what was originally consented to (outside the boundaries) c. Fraud or mistake

 Cases a. Robins v. Harris b. Kennedy v. Parrot c. Doe v. Johnson

ii.

Necessity  Privileged Conduct

a. Arrests and searches; officers can enter land to execute a sear or arrest warrant b. Public rights; user of public utility (e.g. a restaurant) has the privilege of not being denied access and cannot be held as a trespasser c. Necessity; public and private necessity

 Public Necessity

a. A public danger (affects the greater public) - complete bar to liability b. Saving lives is virtually always a public necessity (Surroco)

 Cases

a. Surroco v. Geary b. Vincent v. Lake Erie Transportation

 Private Necessity

a. A private danger (affects your own private needs) - does not act as a complete defense 1. If there is damage or loss, there is a requirement to pay restitution 2. Distinguished by who is making the decision and how many people benefit from the decision

 Cases a. Ploof v. Putnam b. Wegner v. Milwaukee Mutual

II. Negligence A.

Elements i. ii. iii. iv. v.

Duty Breach Actual Harm (F)Actual Cause Proximate Cause

B. Duty i.

Standard Of Care - Reasonable Care/Ordinary Care a. exercise the care that would be exercised by a reasonable and prudent person under the same or similar circumstances to avoid/minimize risk to others. 4

b. Standard never changes (Stewart v. Motts) except: 1. Physical disability = reasonable care by a person with a like infirmity (Shepard v. Gardner Wholesale) 1. NOT Mental (Creasy v. Rusk) b. Expert/Superior Knowledge = if an actor has more than minimum qualities, then he is required to exercise them in a reasonable manner. (Hill v. Sparks) c. Jury instructions - Sudden Emergency (Bjorndal) 1. Same level of care, just being clearly explained to the jury

b. Cases a. b. c. d. e.

ii.

Stewart v. Motts Shepard v. Gardner Wholesale Creasy v. Rusk Hill v. Sparks Bjorndal v. Weitman

Children a. If a child is involved in a child’s activity, they use a reasonable child standard. b. If a child is involved in an adult activity, they use a reasonable adult standard. a. An adult activity is generally anything involving a motor vehicle

c. Cases a. Robinson v. Lindsay

iii.

Negligence per se 1. Statute itself supplants the usual common law standard of care 2. To establish negligence per se: 1. the statute or regulation must clearly define the required standard of conduct; (Martin) 2. the statute or regulation must have been intended to prevent the type of harm the defendant’s act or omission caused; and 3. the plaintiff must be a member of the class of persons the statute or regulation was designed to protect (O’Guin) 4. The violation must be the proximate cause of the injury. 3. A person’s conduct is excusable if: (Impson) 1. the violation is reasonable because of the actor’s incapacity; 2. he neither knows nor should know of the occasion for compliance; 3. he is unable after reasonable diligence or care to comply; 4. he is confronted by an emergency not due to his own misconduct; or 5. compliance would involve a greater risk of harm to the actor or to others. 4. Cases 1. Martin v. Herzog 2. O’Guin v. Bingham County 3. Impson v. Structural Metals

c. Sudden Emergency 1. People who are suddenly placed in a position of peril through no negligence of their own, and who are compelled to act without opportunity for reflection, are not negligent if they make a choice as a reasonably careful person placed in such a position might make, even though they do not make the wisest choice. 5

2. Many districts do not use the emergency instruction, however, as the standard of care never actually changes, merely adjusts to the situation and it’s up to the jury to determine if the defendant acted reasonably (Bjorndal).

3. Cases 1. Bjorndal v. Weitman

C.Breach 1.

Foreseeability is Key 1. Reasonable care, not perfect 2. Alternatives are often examined 1. Pipher - How the second jerk of the wheel could have been prevented; was there a reasonable way to stop it 2. Indiana - Balance convenience and risk; potential harms and effort weighed

3. Hand Formula (Carroll Towing) 1. 2. 3. 4. 5.

B = burden of adequate precautions against the risk (costs, time, effort) L = the gravity or magnitude of the harm or injury (loss) P = probability of the harm occurring (foreseeability) If BPL then failure to take the precaution is not a breach of the standard of care

b. Proof 1. Plaintiff must prove the elements by a preponderance of the evidence 1. Slip and fall (Thoma) 1. actual knowledge (knew) or constructive knowledge (should have known); or 2. created the hazard b. Can use direct evidence or circumstantial evidence c. Custom can be used as evidence for ordinary care 1. As a sword, ok (Duncan v. Corbetta) 2. As a shield, not ok (TJ Hooper) d. The mere happening of an accident is not evidence of breach (Gift) 1. Res Ipsa is the exception to this

b. Cases a. Pipher v. Parsell (Noted) b. Indiana Consolidated Insurance Co. v. Matthew (Noted) c. United States v. Carroll Towing Co. (Noted)

d. Forsyth v. Joseph e. Thoma v. Cracker Barrel Old Country Store Inc. (Noted) f. Duncan v. Corbetta g. The T.J. Hooper

b. Res Ipsa Loquitor a. For use when plaintiff cannot prove defendant’s breach, but negligence is the leading cause of that type of harm 1. Explore alternatives (e.g. Jeffries -- no inspection on car, may not have been negligence) b. 3 part test: 1. The accident which produced a person’s injury was one which ordinarily does not happen in the absence of negligence 6

2. The instrumentality or agent which caused the accident was under the exclusive control of the defendant, and 3. The circumstances indicated that the untoward event was not caused or contributed to by any act or neglect on the part of the injured person. c. Res Ipsa Loquitur does not establish negligence (this is not negligence per se). All RIL does is allow the breach issue to be presented to the jury.

b. Cases a. Byrne v. Boadle b. Warren v. Jeffries

C.Actual Harm i.

ii.

A legally cognizable harm, frequently referred to as actual damages. Failure to show that actual damage resulted from negligence will lose.

Cases a. Right v. Breen

C.Causation i.

Factual a. But-for Test (Hale) a. but for the defendant’s actions, the plaintiff would not have been injured. b. For want of a nail b. Multiple Tortfeasors a. Only for use when there is an indivisible injury (Landers) b. When harm cannot be divided between multiple defendants, each is a cause and fault apportionment rules apply 1. Fault Apportionment Rules 1. Apportion by causation; used with divisible injuries 2. Indivisible injury from multiple tortfeasors 1. Joint and Several Liability with Contribution 1. All defendants are 100% responsible; can’t collect more than 100% but can get it all from 1 defendant 2. Defendant can then go after others for contribution 2. Proportionate Share 1. Jury is asked to determine fault for each defendant b. If defendants breach is substantial factor, defendant may be liable (Anderson) i. Substantial factor test determines that either of the tortfeasors breaches was sufficient to cause the harm b. Burden of proof is shifted back to defendant (Summers)

ii.

Cases a. b. c. d. e.

Hale v. Ostrow Salinetro v. Nystrom Landers v. East Texas Salt Water Disposal Co. (Noted) Anderson v. Minneapolis, St. Paul & Sault Ste. Marie Railway (Noted) Summers v. Tice 7

ii.

Proximate a. Define Scope of Risk (Palsgraf) a. Harm that occurs must be of the same general nature of the defendant's negligence b. eg. internal dialogue -- gee i better not do x otherwise z may happen b. Danger Doctrine a. c. Extent of Injury Unforeseeable a. Thin skull rule (Hammerstein) d. Unusual Manner (Hughes) a. Most often doesn’t matter as long as it is still within scope of risk b. IF harm occurs in such an unusual manner that its from a different risk, then it destroys proximate cause (Hughes, Turner Manufacturing) (Turner Manufacturing) e. Intervening a. Act is a superseding cause (Watson) b. T1 and T2 i. T1 wants to pin it on T2 b. Acts must be sequential from T1 and T2 (Nugent) c. Gaines Tab (OK bombing) i. IF cause is independent of original injury and not foreseeable it breaks causal chain and second actor is liable b. T2s negligence can break the causal chain c. Position of Safety i. Reaching position of safety can defeat liability for T1

ii.

Cases a. Bernier v. Boston Edison Co. (Mrs. Magoo struck by a car and careens out of control) b. Medcalf v. Washington Heights Condominium Ass’n, Inc. c. Abrams v. City of Chicago d. Palsgraf v. Long Island Railroad Co e. Hughes v. Lord Advocate f. Doughty v. Turner Manufacturing Co. LTD. g. Hammerstein v. Jean Development West h. Watson v. Kentucky & Indiana Bridge & Railroad

C.Defenses to Negligence Negation of one element will defeat Affirmative Defenses

1. Contributory Negligence 1. Plaintiff was also negligent; plaintiff failed to care for themselves (Butterfield) 2. Complete defense

b. Comparative Negligence 1. Can be a complete defense but most often isn’t 2. Pure comparative negligence 1. Compare both sides of the v 3. Modified comparative negligence 8

1. If plaintiff is too much at fault, plaintiff can’t collect

b. Rescue Doctrine 1. If a person sees another person in imminent danger, the individual cannot be charged with contributory negligence unless they act recklessly

b. Last Clear Chance 1. If the defendant discovered or should have discovered the plaintiff’s peril and could have reasonably avoided it, the plaintiff’s earlier negligence would neither bar nor reduce damages 2. Cannot use contributory negligence defense

b. Illegal Activity 1. When the plaintiff’s injury is a direct result of his knowing and intentional participation in a criminal act he cannot seek compensation for the loss. (Barker)

b. Assumption of Risk 1. Assumption of Risk 1. a person assumes a risk when voluntarily agrees to accept a known and appreciated risk 2. Variation of consent that arises under negligence 1. i.e. a consent to harm 2. Complete defense in a contributory defense jurisdiction b. 3 Types of Assumption of Risk 1. Express AoR 1. Agreement for � to accept risks (Boyle) 1. Exceptions - Doesnt’ need to be written (e.g. hospital in Tunkl) 2. Exculpatory clause hold harmless (e.g. sports facilities) 3. Use doesn’t matter what kind of jurisdiction you’re in (i.e. comparative vs. contributory) ii. Implied AoR - Primary 1. Voluntarily accepting a known and appreciated risk through their actions 2. Plaintiff implicitly agrees to conduct that is inherently risky (Avila). 3. No duty to make activity any safer than normal, but cannot increase the risk 4. Still in action in contributory negligence jurisdictions and acts as a complete defense ii. Implied AoR - Secondary 1. Voluntarily accepting a known and appreciated risk through their actions 2. Facing defendant’s negligence, the plaintiff agrees to encounter the risk anyway (Betts) 1. Car with breaks that were never serviced; made known, you take it anyway 2. Merges with comparative negligence in some jurisdictions (i.e. comparative jurisdiction regime) and becomes a partial defense 3. Still in action in contributory negligence jurisdictions and acts as a complete defense 9

vii.

Cases 1. Marshall v. Nugent 2. Butterfield v. Forrester

3. Crownover v. City of Shreveport 4. Barker v. Kallash 5. Boyle v. Revici (AoR) 6. Tunkl v. Regents of University of California (AoR) 7. Betts v. Crawford (AoR) 8. Avila v. Citrus Community College District (AoR)

III. Landowner Duties A.

Classes - Trespasser, Licensees, Invitees, and Children 1. Landowners Duties 1. Invitee 1. Business Invitee - A person invited on to provide a pecuniary benefit 2. Public Invitee - A person on the premises that is open to the general public 3. Duty

1. Ordinary care 1. Disclose hidden dangers, unless danger is open and obvious b. Licensee i. Allowed on land with permission, but had limited license to be there 1. Includes social guests ii. Duty 1. Avoid WWR (Gladon)

2. Disclose hidden dangers, unless danger is open and obvious b. Trespasser i. Person who has no legal right to be on another’s land and enters without ii.

ii.

their consent Duty 1. Avoid WWR 2. Except 1. Discovered in peril (then ordinary care) 2. Activity vs condition of land 3. Attractive Nuisance 4. Footpath rule 1. If the landowner knows people frequent the area, then the duty reverts to ordinary care

Children a. Attractive Nuisance Doctrine (Bennett)

ii.

i. Trespass foreseeable ii. Landowner knows of danger iii. Child, because of age, cannot protect himself Open and Obvious Danger 10

a. If a danger is open and obvious to an individual of average intelligence then there is no need to warn invitees or licensees.

ii.

Cases 1. Gladon v. Greater Cleveland Regional Transit Authority 2. Bennett v. Stanley

A.

Firefighter Rule a. Common Law Doctrine i.

Precludes a firefighter from recovering for defendant’s negligence

b. Cases i.

Minnich v. Med-Waste, Inc.

VI. Nonfeasance A. No Duty to Act a. There is no legal responsibility for observing an individual in peril b. There is no legal responsibility for placing an individual a potential position of peril, unless physically forced (Yania) c. Individual assume legal responsibility when they voluntarily assume care for individual in peril (Mraz) i. The level of care must only be that of reasonable care, not rescue

B. Exceptions, Qualifications and Questions a. Causes harm to another person (Podias) i. Triggers duty to help, even innocently harming ii. Ordinary care must be used to remedy, not rescue b. Creates unreasonable risk of ...