1: MODERN TORT LIABILITY: Intentional injury, Failure to exercise care, and strict liability.
A. INTENTIONALLY INFLICTED INJURY
A. INTENT and Culpability
a. Knowledge with substantial certainty committed battery: or if you know that is enough to show intent. (Garrat v. Dailey: 5 year old went to a house, moved a chair where plaintiff fells where she was going to sit down pg. 11)
B. HARMFUL OR OFFENSIVE CONTACT
C. NO CONSENT
D. DEFENSES: Privilege: affirmative defense is where burden of proof rests on defendant. Did he know with substantial certainty. (Garrat v. Dailey *Bryan did know when substantial certainty that she would fall because that had happened to him in his K class* Bryan’s age is material would influence his knowledge of situation. Court misleads. Infant in law – minor).
E. Public Policy:
a. Fault principle: defendant must pay the costs.
b. Liability should be used to deter accidents: by pinning liability on person at fault you are creating a deterring affect. Think twice about when you kick people.
F. Rule:“thin skull rule” – egg shell rule (responsible if you do act if you know it is not a good thing, might lead to a serious injury which one might be responsible)
ACTIONS BASED ON LACK OF CARE (NEGLIGENCE)
A. Duty
a. Foreseability: If a risk is reasonably foreseeable, defendant must exercise reasonable care. Duty of care: defendant has duty to exercise reasonable care. (Doe v. Roe.(dating and defendant had herpes but didn’t tell girl.
b. When you cannot foresee a risk you have no duty to prevent it. (Cohen v Petty (NOT an issue of foreseeability because defendant had never fainted before while driving).
DEFENSES
A. Assumption of Risk: to successfully assert the assumption of the risk a defendant must show that the plaintiff subjectively appreciated danger and voluntarily chose to confront it and manifested a willingness to relieve the defendant of any obligation to exercise care. This defense totally bars recovery. (Doe v. Roe: didn’t assume risk because didn’t know).
a. person subjectively appreciates danger
b. voluntarily
c. doesn’t have expectation that care will be exercised.
B. Contributory negligence: if defendant could prove, then this would be a total defense. However, not a defense to an intentional tort.
C. Comparative negligence
a. Pure: compares plaintiff negligence to defendant’s negligence. Plaintiff collects whatever percentages of damages is her fault. 65% responsible is def. And 35% of plaintiff then they will collect 35% for plaintiff
b. Modified: threshold where it is at 50%. Subtract from plaintiff’s recovery that percent that is her fault.
STRICT LIABILITY
A. New: plaintiff in south Carolina no longer has to show that owner knew or should have known about dangerous dog. Gets new rule from California.
1. Hossenlopp v. Cannon (facts:dog bite )
2. Note: *In some states, they have declined to adopt strict liability because it is better to decided by legislature.
3. Absolute liability: defendant cannot raise defenses on the def. Own conduct. (i.e. will always be liable whether plaintiff did something or willfully encountered risk, can’t raise anything that exists to defend).
AN INTRODUCTION TO INSURANCE:
A. Insurance company and insurance enter K wh
son v. US-41 Lambertson/Plaintiff injured after he hit meat hooks but defendant, federal ee that sent the case to federal court)
Note 2: Sovereign immunity: federal government enjoys immunity from suit. Federal government partially waived sovereign immunity. Partial waiver: Fed Torts Claims acts permits civil actions against U.S. state government caused by negligent but does not waive “SR” with respect to assault or battery. Cannot recover for intentional torts of federal employees. (Federal torts claims act) (that is why court finds its battery and plaintiff doesn’t win).
2. INTENT AND MISTAKE
A. When someone intentionally does something, the fact that person made a mistake, does not relieve person of liability, even though mistake was caused in good faith. Rule: when a defendant intends to do something it is not defense that the defendant made a mistake to the animal/person that they intended to do. (Ranson v Kitner-44)(Kitner (appellant) killed dog of Ranson (appelee) while hunting for wolves)
TREATMENT OF MISTAKE IN INTENTIONAL TORT.
MISTAKE
Traditional
FACTUM – essence = invalidates consent
INDUCMENT – peripheral = consent valid
DEMAY CASE
MODERN APPROACH
Mistake Material to Plaintiff’s consent ? YES
Mistake Induced by or known to Defendant to Plaintiff? YES
