Torts Outline My actual nightmaare PDF

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Torts Outline - Garlock Created By Kelly Campbell Introduction; Define Tort and the judicial Process  Hammontree v. Jenner (132)  Tort: Strict liability/product liability  Intent: Not required  Conduct: That causes injury or death.  Result: Injury occurs  Intent:  A person acts with intent to produce a consequence if:  The person acts with the purpose of producing that consequences; or  The person acts knowing that a consequence is substantially certain to result  Imminent Apprehension:  Actor must have an imminent apprehension that contact will result for the action.  Garrett v. Daily  Daily being substantially certain that Garrett would hit the ground because his actions established intent. He did not have to intend that she would be harmed.  Transferred Intent occurs when:  Intending to hit A but hit B  Between intentional torts specifically assault and battery  Single intent:  The only intent necessary in a battery case is the intent to make the contact. The intention to cause harm or offense is not relevant. Any touch that is both unconsented to and voluntary that leads to damage is eligible for liability.  Dual Intent:  Both intent to make contact in a harmful way and an intent for the contact to be harmful or offensive.

Intentional Torts

 Harmful/Offensive Battery:  A battery occurs when a person  (1) Intends to cause harmful or offensive contact.  (2) Conduct to make harmful or offensive contact with the person of another; causes imminent apprehension of such contact  (3) Results in harmful or offensive contact.

 Vosburgh v. Putney – If the intended act is unlawful, the intention to commit it must be unlawful.  Leichtman v. WLW Jacor Communcations, Inc. (25a) – One can commit a battery by intentionally blowing smoke in another’s face  Shaw v. Brown & Williamson (25b)  Alcorn v. Mitchell (56) – Spitting in someone’s face in a courtroom is considered an offensive battery  Fisher v. Carousel Motor Hotel Inc. (26) – An object in close contact with a person can be customarily regarded as an extention of that person’s body; if an aggressor contacts this extension in an unpermitted and intentional manner then a battery has occurred.  Battery: Single v Dual Intent  White v Muniz (27a) – In a dual intent jurisdiction, a tortfeaser must both intentionally contact another person and intend that the contact be harmful or offensive to be liable for battery.  Wagner v State of Utah (27c) - Intent to make contact is all that is necessary to meet the intent element in a battery claim.

 Assault:  A person is subject to liability for the tort of assault if:  (1) Intent: to cause imminent apprehension of a battery  (2) Conduct: to cause imminent apprehension of a battery  (3) Results: in imminent apprehension of a battery  An unconscious person cannot plead an assault case  If they don’t see the action, they cannot claim assault.  I de S. and Wife v. W. de S. (52)- When a person causes imminent apprehension of a battery, but does not touch the person of another, then an assault has occurred.

 Tuberville v. Savage (53) – Mere threats do not constitute an assault.

 Cullison v. Medley (28) – a person has a cause of action in tort for assault when an invasion of an individual’s mental peace occurs, determined as that within the mind of a normal person, as a direct result of intimidation by another individual or party.

 Fear is not required just the only the anticipation of the subsequent act.  False Imprisonment  RS §35 False Imprisonment (1)

An actor is subject to liability to another for false imprisonment if a. He acts intending to confine the other or a third person within boundaries fixed by the actor and, b. his act directly or indirectly results in such confinement of the other, and c. the other is conscious of the confinement or is harmed by it.

 Coblyn v. Kennedy’s Inc. (58)  If a person is restrained of his personal liberty by fear of a personal difficulty that amounts to false imprisonment within the legal meaning of the term. o Examples:  Someone steals your clothes while skinny dipping  Has to be conscious of the confinement  Involuntary submission  Believing you can’t leave is not enough there needs to be evidence  Exception: Conscious or harmed by it. If an unconscious person is imprisoned without their knowledge, they may have a case for false imprisonment if they are harmed as a result.  Means of an Escape. No imprisonment if there is an escape available and the plaintiff knows about it.

 Intentional Infliction of Emotional Distress  A person is liable for the tort of IIED if:  (1) – Intent to cause or Recklessly cause Severe Emotional Distress  (2) – Conduct: is Extreme or Outrageous  (3) – Result: In severe emotional distress

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(4) – liability has only been found where the conduct has been so outrageous in character to go beyond all possible decency and intolerable in a civilized community. person acts Recklessly in engaging conduct if: (1) – The person knows of the risk of harm created by the conduct or knows the facts of another person’s situation; and (2) – The precaution that would eliminate or reduce the risk involves burden that are so slight to the magnitude of the risk as to render the person’s failure to adopt the precaution a demonstration of the person’s indifference to the risk RS2 §46 Outrageous Conduct Causing Severe Emotional Distress (66-67)  Wilkinson v Downton (63) – When the behavior/conduct is extreme and/or outrageous, the D could be held liable for the tort of IIED  Contreras v. Crown Zellerbach Corporation (30) – Where plaintiff is susceptible to racial slurs and intimidation, and where P suffers as a result of such behavior, P has a cause of action for IIED.  Does not extend to mere annoyances, insults, trivialities 4 categories where the courts are more likely to allow a jury to find D has engaged inoutragous conduct:  1 – ∆ abuses position of power or special relationship.  2 - ∆ takes advantage of π known to be especially vulnerable

 Trespass to Land  A person is liable for the tort of Trespass to land when:  (1) – Intent – to enter land  (2) – Conduct – causing (taangilble) entry  (3) – Results – In entry to the land of another  Dougherty v. Stepp (12) – In regards to Trespass to land it is the entry that constitutes the trespass.  Cleveland Park Club v. Perry - ∆ a young boy who was a guest of π at their social club, stuck a ball in the pipes of π pool. The ball was sucked into the middle of the pipes, causing severe damage.  Supplement (33-40)  Trespass to Chattels  A person is liable for the tort of Trespass to Chattels when:

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Intent: is that to interfere with chattels Conduct: causes interfere with chattels Result: In interference and damage or dispossession Subject to liability if:  Dispossession occurs  Chattel is impaired as to condition, quality, or value  Possessor is deprived of the use of the chattel for substantial time or  Bodily harm is cause to the possessor or harm is cause to some other person or thing in which the possessor has a legally protected interest. If the chattel is lent to another no force may be used to reclaim the chattel  Ranson v Kitner: ∆ shot a dog, thought it was a wolf, Trespass to chattel lies.

Defenses to Intentional Torts  Consent:  Implied Consent  Consent is implied in an emergency under the assumption that a reasonable person would consent if they were able

 Consent Is implied based upon a persons conduct  Consent is implied based upon custom  Majority: No one can consent to an act that is illegal so therefore liability can be held  Minority: The willing suffer no injury; consenting to a crime bars any tort for recovery for

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either party.  Mohr v. Williams – If the action was unauthorized then it was unlawful. ∆ is liable for tort of battery b/c π consented to surgery on the left ear and the ∆ operated on the right ear.  Hudson v. Craft (22) – Each case should be decided on a case by case, when a promoter conducts an illegal boxing match, such a promoter is liable for damages suffered by minors in a fight. Emergency exception: Condcut that injures another does not make the actor liable to the other, even though the other has not consented to it if

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(a) an emergency makes it necessary or apparently necessary, in order to prevent harm to the other, to act before there is opportunity to obtain consent from the other or one empowered to consent for him, and  (b) the actor has no reason to believe that the other, if he had the opportunity to consent, would decline.  Mental Disability:  Insanity is not a defense to intentional torts.  Difficulty any satisfactory line between mental illness and incompetence  Fear that ∆ might feign insanity and avoid liability  Encourages those in charge of the insane to look after them and keep them from harming others  If an insane person has significant resources they should be used to compensate the innocent victim (fairness) in which they have harmed (strict liability)  These decisions are about public policy not logic  McGuire v. Almy (28)- if an insane person acts with the intention to strike another, then the former is liable for assault, if contact is made they are liable for battery.  Defense of Property  A person can use reasonable force to prevent a tort against real property or chattels  Does not excuse use of force against an innocent party  Intentional mechanical infliction of deadly force (spring guns) is not privileged unless such force is justified to defend oneself from deadly force.  Katco v. Briney (41) – unless the intrusion onto the property is in itself violent, or if there exists the immediate threat of violence, only then may the property owner use serious or deadly force. However, in the property owners absence, he may not use a spring gun to issue such force that is likely to cause serious injury or death  Recapture of Chattels  One is privileged to forcibly retake chattel that that been obtained by force or fraud if:  Fresh pursuit is satisfied  Prompt discovery of the dispossession and prompt persistent efforts to recover the chattel  Any undue lapse of time during the pursuit means that the owner is no longer privileged to use force and must resort o the law to recapture the chattel  One uses reasonable force under the circumstances

 Like defense of property, it is not privileged to inflict serious bodily harm to protect a property interest  No force can be used until a demand has been made to return the chattel  No demand has to be made if it is reasonably appears that demand would be useless or dangerous.  Hodgedon v. Hubbard (45) – When recapturing a chattel, generally force may not be used. However, in the process of recapturing thee chattel, the opposite party draws a weapon becoming the aggressor then force may be used in self-defense. CB 40-41 (spring guns)  Necessity  Allows a person to interfere with the property interests of an innocent party in order to avoid a greater injury (minimize overall loss)  A traveler may pass on the adjoining land if the road is obstructed, out of necessity  Injuries to private property for public interest  Burning crops as an army advances to prevent the use of the crops  Private necessity – An individual is privileged to interfere with another’s property but is liable for the damage  Ploof v. Putnam – π was out boating with his family when bad weather started. He pulled into the defendant’s dock (trespass) and tied the boat sso it and his family would be safe. Dock hand of the ∆ untied the boat, then the boat was flung onto shore, harming the π and his family. π has the privilege of necessity.  under the doctrine of necessity trespassing on another’s land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass.  The doctrine of Necessity applies with special force to preserve human life.  Vincent v. Lake Erie Transportation Co. (44) – When one uses the property of another out of necessity during a storm to make sure that damage to the first party’s ship and property is minimized, if the first party’s ship is preserved due to the use of the latter’s property with the destruction of the formers, than the first party owes damages to the latter.

 Negligence: the failure to exercise reasonable care under the circumstances.  Elements:  Duty  Breach  Cause in Fact

 Proximate Cause  Damage  The Basic Standard of Care  The Reasonable Person: Bound to proceed with such reasonable caution as a prudent man would have exercised under such circumstances  Rule of 7s: A child under 7 is not capable of Negligence, 7-14 must show proof, 14 and ^ is capable.  Cases:  Vaughn v. Menlove  Rule: A person has a legal duty to use his or her property with the same level of ordinary care that would be exercised by a reasonable person. https://www.quimbee.com/cases/vaughan-v-menlove  Oliver Wendall Holmes  Daniels v. Evans  Rule: Minors are entitled to be judged by a negligence standard commensurate with their age, experience, and wisdom only when engaged in activities appropriate to their age, experience, and wisdom.  Roberts v. Ring  Rule: Liability for comparative negligence of a child is judged by the standard of care usually exercised by an ordinary child of his age or maturity.  Breunig v. American Family Insurance Co.  Rule: insanity may be a defense to liability for negligence if an individual is suddenly overcome without forewarning by a mental disability or disorder that makes him incapable of conforming his conduct to the standards of a reasonable man under like circumstances.  Calculus of Risk  Foreseeability  Blythe v. Birmingham Water Works  https://www.quimbee.com/cases/blyth-v-birmingham-water-works  Rule: A defendant may not be liable for negligence if the defendant does what a person taking reasonable precautions would do under the circumstances.  The oncoming frost at this time of year was unforeseeable and the court says it was an accident not negligence.  Unreasonable

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Stone v. Bolton  https://www.quimbee.com/cases/stone-v-bolton  Rule: Negligence may exist when a defendant fails to act to prevent all reasonably foreseeable risks.  Bolton v. Stone  https://www.quimbee.com/cases/bolton-v-stone  Rule: No legal duty to prevent harm exists when the risk of damage to a person is so small that a reasonable man in the same position, considering the matter from the point of view of safety, would have thought it right to refrain from corrective action. Social Utility – Weighs the social utility of defendant’s actions in making a potentially unreasonable risk.  Eckert v. Long Island R.R. Co.  ˚https://www.quimbee.com/cases/eckert-v-long-island-r-r  Rule: Negligence does not arise from an act or omission designed to preserve human life.  The fundamental idea of liability for wrongful acts is that upon a balancing of the social interests involved in a case. Burden of Precaution: What a reasonable person should consider as the weight of taking the burden of precaution to protect against harm.  U.S. v. Carroll Towing Co.  https://www.quimbee.com/cases/united-states-v-carroll-towing-co  Rule: Liability for negligence due to failure to take safety precautions exists if the burden of taking such precautions is less than the probability of injury multiplied by the gravity of any resulting injury, symbolized by B < PL = negligence liability.  The Hand Formula  B (Burden of Precaution < P (Probability of injury) x L (The gravity of the resulting injury)  Judge Possner on the Hand Formula:  It may be the cost of installing saftety equipment (B), or , otherwise making the activity safer.  Cooley v. Public Service Co.  https://www.quimbee.com/cases/cooley-v-public-service-co  Rule: a Defendant is not liable for negligence by breach of Duty of care when the defendant could not reasonably uphold the duty without sacrificing its duty to another

party whose detriment would be far greater than that of the P if ∆ did not satisfy its duty of care to that party.  Custom:  (Evidence of standard of care – not conclusive in all JD): regular usage or way of doing specific things, a practice of some sort, must be widespread, does not need to be unanimous.  RS3 §13. Custom  (a) An actor’s compliance with the custom of the community, or of others in like circumstances, is evidence that the actor’s conduct Is not negligent but does not preclude a finding of negligence.  (b) An actor’s departure from the custom of the community, or of others in like circumstances, in a way that increases risk is evidence of the actor’s negligence but does not require a finding of negligence.  Comment b. Compliance with custom: rationale: …Possibly, the entire community or industry has lagged: all members of the group to which the actor belongs may have been inattentive to new developments or may have been pursuing self-interest in a way that has encouraged the neglect of a reasonable precaution.  Comment c: Departure from custom: While proof of deviation from custom is only evidence of negligence, this evidence often has significant weight. Aa a practical matter, the party who has departed from custom can counter the effect of this evidence by questioning the intelligence of the custom, by showing that its operation poses different or less serious risks than those occasioned by other engaging in seemingly similar activitites, or by showing that it has adopted an alternative method for reducing or or controlling risks that is at least as effective as the customary method;….    The TJ Hooper  https://www.quimbee.com/cases/the-t-j-hooper  (first 1931)  Rule: A business violates its duty of care by failing to use new safety technology if the use of that type of technology is widespread among other businesses in the same field.  (second 1932)  https://www.quimbee.com/cases/the-t-j-hooper--2

 Rule: A business may be liable for failing to adopt new technology, even if the industry has not widely adopted it, if the use of the technology constitutes reasonable prudence.  Lama v. Boras  https://www.quimbee.com/cases/lama-v-borras  Rule: Under Puerto Rico law, to demonstrate a prima facie case of medical malpractice, a plaintiff must demonstrate the basic norms of knowledge and medical care applicable to general practitioners or specialists, proof that the medical personnel failed to follow these basic norms in the treatment of the patient and a causal relation between the act or omission of the physician and the injury suffered by the patient.  Medical Malpractice: To establish a prima facia case for medical malpractice π must demonstrate: the basic norms of knowledge and medical care applicable to general doctors, proof that and the medical personnel failed to follow these basic norms n the treatmet of the patient and a caausaal relation between the aact or omission of the physician and the injury suffered by the patient.  If there are two acceptable customs, the jury does not decide which is better; this decision is left to the medical community and it considered to be an issue of law.  Locality rule: (obsolete mostly); praacticioners in small rural towns are not held to same standard as doctors in large cities.  Informed Consent:  (Non-Disclosure of a risk, injury & causal relationship between the two); A dr. proposing a course of treatment orr aa surgical procedure has a duty to provide the patient with enough information about its risks to enable the patient to make an informed consent to the treatment.  If an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent to the treatment, the dr. has breached this duty.  Must disclose nature, risk, feasible alternatives of treatment and consequences of nontreatment.  Exceptions: where patient is unconscious & incapable of consent and failure to get consent outweighs the risk of treatment or risk-disclosu...