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Rutgers University, Newark School of Law
Latin, Howard A.

Prof. H. Latin
Fall 2014

Intentional Liability theory

Negligence Liability Theory
Duty of care
Reasonable foreseeability: P must show that D caused reasonably foreseeable risk to P
Reasonable care: P must show that D failed to take reasonable care to avoid that risk

Strict Liability
Abnormally Dangerous activities
Non-natural use (real estate)

1. Intentional Torts

Intent:  Intent is based on the act, or the intention behind it
1) If your act is intentional and you intend to cause harm
2) If your act is intentional but you don’t intend to harm, you can still be liable for the natural and probable consequences of the action.
-Intentional torts are their own category because they tend to encompass certain types of dangerous behavior which the law wants to deter
Types of intentional torts:           
Battery- Prima Facie:
-Physical contact
Assault- Prima Facie:
-Imminent apprehension of harm (some states fear)
Intentional Destruction of Personal Property- Prima Facie:
-Property damage
Intentional Infliction of Emotional Distress- Prima Facie:
-Suffering emotional distress
-Shocking to the social conscience
Trespass- Prima Facie:
-Encroaching private property
Conversion (Strict liability tort)- Prima Facie:
-Taking of private property

Defenses- Two Types:
1) General Defense- tries to deny an element of the prima facie case
-Tort never occurred
-P consented
-No intent
2) Affirmative Defense- tries to justify act (self-defense, necessity)
-Self-defense: No straightforward formula
-Reasonable force in proportion to threat
-Determined by the nature and potential cost or danger of the threat, with extremely expensive or irreplaceable property or threat to life warranting deadly force
-Least amount of force necessary should be employed
-Who starts violence?
-Who injures who more?
-Type of force used?
-Includes damages caused by official duties of police, fire, etc.

Types of arguments for weighing liability
-Deterrence, minimizes costs, prevention:
Ways that a negative act can be prevented in the future
-Loss spreading/insurance:
Is there a pool that pays out claims for damage?
-Transaction costs:
How difficult is it to achieve a legal goal in regard to time and cost?
-Information access:
Is one party more knowledgeable about the circumstances surrounding the incident?
Will one side be wronged by a judgment for the other party?
-Retribution/punitive damages
Usually only applied for criminal or dangerous negative behavior
-Justice, coherence, consistent, predictable
Predictability, coherence and consistency allow judges to make easier rulings and help people predict the outcomes of their behavior
-Judicial administr

ion regarding responsibility for the action can be difficult or impossible to obtain at the time of the accident or even ever after
o   Prima Facie Case:
§  We look to see if this general type of injury ordinarily wouldn’t occur without negligence
§  We determine who (can be a group of people- class of actor) had control of the instrumentality that caused the injury
o   Things that may negate res ipsa
§  It’s unclear that the injury was the result of negligence (revert to regular tort case)
§  We don’t know or can’t attribute blame to any particular party responsibility for the injury- it’s an uncontrolled environment (i.e. person throwing chair from hotel room window)
Legal Custom:
·         Evidence for or against a particular practice that lay people wouldn’t ordinarily know
o   Way of proving/disproving negligence according to the customary practices of a certain profession
o   Custom is admissible as an offense or defense (doctors it’s binding as a defense, see below)
§  Custom may protect against acts which may cause harm when performed by certain professionals
§  Vast majority, or nearly all (98%) of certain group need to have adopted the custom to make it a custom
§  Custom subject to judge/jury’s decision of whether or not the custom is reasonable
§  Custom cannot be used as sword (offensively by P) to prove misconduct in and of itself, a finding of unreasonableness is still necessary because:
·         Allowing P’s to recover just because someone tries something new isn’t sufficient to prove negligence
o   Now defunct: Originally, custom binding when used as shield (defense) regardless of safety of reasonableness