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

 
Torts
Prof. H. Latin
Fall 2014

Intentional Liability theory
Elements:
Causation
Damage
Intent

Negligence Liability Theory
Elements:
Duty of care
Breach
Causation
Injury
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
Or:
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
-Intentional
-Nonconsensual              
Assault- Prima Facie:
-Imminent apprehension of harm (some states fear)
-Intentional
-Nonconsensual
Intentional Destruction of Personal Property- Prima Facie:
-Property damage
-Intentional
-Nonconsensual
Intentional Infliction of Emotional Distress- Prima Facie:
-Suffering emotional distress
-Intentional
-Nonconsensual
-Shocking to the social conscience
Trespass- Prima Facie:
-Encroaching private property
-Nonconsensual
Conversion (Strict liability tort)- Prima Facie:
-Taking of private property
-Nonconsensual

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
-Factors:             
-Who starts violence?
-Who injures who more?
-Type of force used?
-Necessity/Emergency
-Privilege
-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?
-Fairness
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