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Torts
San Joaquin College of Law
Pearson, Janice L.

PEARSON – TORTS SRPING 2010 OUTLINE
 
 
Torts Overview For Exams. 2
Intentional Torts. 3
Strict Liability in Tort5
Strict Liability for Animals. 5
Strict Liability for Abnormally Dangerous Activities. 6
Strict Liability in Tort7
Strict Liability in Contract (Warranty)9
Chain of Distribution. 10
Negligence. 11
Issue: Duty. 11
Issue: Standard of Care. 12
Issue: Breach. 13
Issue: Actual Cause. 13
Issue: Legal Cause. 14
Issue: Damages. 15
A. Joint Tortfeasors. 15
B. Satisfaction and Release. 15
C. Contribution and Indemnity. 15
D. Vicarious Liability. 16
Issue: Defenses. 17
A.   Contributory Negligence. 17
A1. Last Clear Chance. 18
A2. Assumption of Risk – In General18
B. Comparative Negligence. 19
C. Comparison of Strict Liability Claims Across Jurisdictions. 20
D. Statute of Limitation (SoL)20
Informed Consent Negligence Essay Structure:21
Medical Malpractice Negligence Essay Structure:21
Land Occupier’s Duty Exception. 22
Artificial Conditions Highly Dangerous to Trespassing Children §339. 22
Rowland v. Christian – CA Minority view.. 22
Persons Privileged To Enter Irrespective Of Landowner’s Consent23
Lessor – Lessee. 23
Pagelsdorf –Minority view.. 23
Liability for Criminal Acts. 23
Negligent Infliction of Emotional Distress (NIED) Duty Exception. 24
Wrongful Life, Wrongful Birth Duty Exception. 25
Defamation.. 26
Invasion of Privacy. 29
Torts Overview For Exams
 
 
Intentional Torts Essay Q
                Do Intentional Torts
                Don’t forget defenses
 
Negligence Essay Q
                Look for Intentional Torts
                Do Negligence analysis
 
Strict Liability Essay Q
                Look for Intentional Torts
                Remember to look for Animals and Abnormally Dangerous Activities
                Go through all Product Liability elements (SLinT, SLinK)
                Go through a Negligence analysis
 
Defamation Essay Q
                Look for Intentional Torts
                Do Defamation analysis
                Consider Invasion of Privacy
                Consider IIED
                Consider Negligence
 
Invasion of Privacy Essay Q (typically arises after a Defamation issue)
                Look for Intentional Torts
                Do Defamation analysis
                Do Invasion of Privacy analysis
                Do IIED
                Consider Negligence
 
 
 
Intentional Torts
 
Intent: The desire to cause a particular consequence, OR knowledge to a substantial certainty (99%) that the consequence will occur.
                -Intent refers to the act; mistake does NOT negate intent (i.e. mistaking a dog for a wolf while hunting does not negate intent to shoot it.).
Transferred Intent- Intent can transfer between the torts of assault, battery, FI, trespass to land and chattels, and between victims. (NOT IIED and conversion.)
 
Intentional Torts:
Battery- is the volitional, unauthorized act intended to cause a harmful or offensive touching to another where such touching occurs.
Assault- is a volitional, unauthorized act intended to place another in reasonable apprehension of an imminent harmful or offensive touching with the apparent ability to carry it out.
False Imprisonment- is a volitional, unauthorized act intended to confine another within boundaries set by the defendant, using force or the threat of force, with no reasonable means of escape and the Π is aware of the confinement or suffers physical injury.
Intentional Infliction of Emotional Distress (aka. Outrage) – is extreme and outrageous conduct done intentionally or with reckless disregard of causing severe emotional distress.
Third-party Victim: In order for a 3P to recover under IIED the actor must
o    Know the 3P is there, AND
o    There is a close relationship between the 3P and victim, OR suffer a physical manifestation
Trespass to Land- is a volitional, unauthorized, intentional entry to land that proves to belong to another.
·         Continuing Trespass – continuing presence of a thing or person on another’s property after consent has been terminated.
·         Nuisance Trespass – substantial and unreasonable invasion of the use and enjoyment of someone’s land without requiring physical presence on their land.
Trespass to Chattel- is a volitional, unauthorized intentional interference with the chattel of another and causes actual damages.
Conversion- is a volitional, unauthorized exercise of dominion or control over a chattel that seriously interferes with the right of another to control it, such that the actor may justly be required to pay the full value of the chattel considering: 1) Extent and duration of dominion/control, 2) Harm done to the chattel, 3) inconvenience and expense.
 
Damages
Personal Injury and Property Damage only needs to be proved for IIED, Trespass to Chattels, and Conversion.
Economic loss is recoverable if it flows out of PI or PD, but not recoverable if it is the sole loss. Punitive damages are available if conduct is outrageous or malicious (i.e. common law malice).
 
Defenses
Defense of Consent-Consent is an agreement, approval, or permission given by a competent person that may be given verbally, by conduct, or by implied consent. Applies to assault, battery, trespass and conversion. Consent void if obtained through fraud, but not void if fraud is related to a collateral ($) matter.
Defense of Self/Others- One is privileged to use reasonable force when one (or other people) is threatened with injury. Privilege terminates when battery is no longer threatened. Reasonable mistake allowed. Aggressor can defend self if they have retreated and are then attacked.
Majority view: when defending others, if make a mistake then held to be negligent
Minority view: when defending others, mistake does not void defense privilege
Defense of Land- One does have a right to use reasonable force to defend land, but one must first ask the entrant to leave. Moreover, a landowner does not have the right to use force when the entrant is privileged to be on the land. Cannot eject trespasser into position of unreasonable physical danger, unless endangering person on property.
Defense of Recovery of Property (Recapture of Chattel)- One may use force to recover property if:
Hot (fresh) pursuit
Theft or fraud
Make demand first
No deadly force
Bear the risk of mistake
Defense of Private Necessity- Trespass is privileged when necessary to escape a serious threat to human life. Human life is more important than the invasion of exclusive possession of land. However, although not liable for the trespass, the entrant is liable for any damage done to the land.
Defense of Public Necessity– Trespass is privileged when necessary to respond to events of public necessity. Here, the entrant is not liable for either the trespass or for any damage done to the land or property.
Bona Fide Purchaser- is someone who pays value for the chattel without knowledge of any competing claims of ownership. Title of item must be transferred to middle person-thru fraud. Theft trumps BFP.  Is conversion if pay no or little value, if aware of fraud, or if transfer of item is due to theft.
 Ex. A →(Loaned Car)  B → (Fraudulent Representation) C → (Sold) → D (BFP)
Shopkeeper’s Privilege-A merchant can detain a person for a reasonable period of time, for a reasonable inspection when the have reasonable cause to believe that a person has committed a theft. You can use reasonable force.
 
Strict Liability in Tort
 
·         Strict liability holds Δs responsible without any regard to the Δ’s conduct.
·         Under strict liability, always talk about actual cause, legal cause, damages, and defenses right afterwards.
·         Overview – There are three primary contexts:
o    Animals
§ Trespass of Domestic Animals
§ Personal Injury Caused by Domestic Animals
§ Wild Animals
o    Abnormally dangerous activities
o    Products
§ Intentional Tort (see Intentional Torts section)
§ Strict Liability in Tort
·         Manufacturing defects
·         Design defects
·         Warning defects
§ Strict Liability in Contract (Warranty)
§ Negligence (see Negligence section)
Animals
 
 
 
 
Strict Liability for Animals
 
o    Anyone who keeps, posses, or harbors the animal, not just the owner may be liable.
o    When it is a domestic animal, look at whether it was a trespass or a specific injury.
a.        Trespass of Domestic Animals:
·         Dogs and cats can freely trespass absent a statute 
·         If you have a trespassing animal and the animal causes injury, owner is liable for both.
·         Injury can include damage to land, personal property (chattel), and persons on the land who are part of the household.
·         Unforeseeable intervening forces (acts of God) cut off liability
b.       Personal injury Caused by Domestic Animals:
·         Liability extends to Δs who know or have reason to know that the animal has a dangerous propensity
·         Physical injury relates to any domestic animals, including pets
·         Generally, you cannot recover punitive damages for strict liability activity because you have to prove willful and vicious activity.
·         Intentional intervening forces cut off strict liability in most jurisdictions.
·         Unforeseeable intervening forces (acts of God) do not cut off liability
c.        Wild Animals:
·         We hold a person strictly liable for the narrow characteristic that made it subject to strict liability, so strict liability isn’t available to the Π who trips over the snake, but is available to the Π who is bitten by the snake.
·         One of the things that make a wild animal wild is that we fear them, so recovery is available for emotional distress under strict liability when the Δ has kept a wild animal. (E.g., gorilla opening your refrigerator, but no physical injury suffered. This is part of the risk created by keeping a gorilla.)
·         Unforeseeable intervening forces (acts of God) do not cut off liability
 
Abnormally Dangerous Activities
 
 
 
Strict Liability for Abnormally Dangerous Activities
 
Rule: An abnormally dangerous activity is an activity that possesses a high risk of serious injury that cannot be eliminated with reasonable care, is uncommon usage and inappropriate to the area, and has no value to the community.
·         Do not use the term “abnormally dangerous” unless you are talking about an activity.
·         Look at the following balancing factors to determine if something is an abnormally dangerous activity (don’t have to have all):  (Note: these elements are included in the Rule above.)
1.        The risk of harm is high
2.        The harm that would ensue if the risk materialized would be great
3.        Risk can’t be eliminated by use of reasonable care
4.        Inappropriate to the area in which the activity took place
5.        Not common usage
6.        Societal value vs. Dangerousness
·         It’s up to the court, not the jury, to decide whether an activity is abnormally dangerous.
·         You will only be held liable for the kinds of injuries that made this an abnormally dangerous activity. (E.g., causing animals to kill their mink by blasting does not count.) Talk about this under legal cause.
·         Activities subject to strict liability:
o    Toxic chemicals and inflammable liquids
o    Pile driving
o    Crop dusting
o    Poisonous Gases
o    Rockets
o    Fireworks display
o    Hazardous waste disposal site
o    Oil wells
o    Water Escape
o    Storage or use of dynamite
·         An intentional tortious intervening third party act will cut off liability; most other acts (like Acts of God) don’t cut off liability for abnormally dangerous activities.
 
Product Liability
 
 
 
 
Click here to go to Strict Liability in Tort flowchart
 
Strict Liability in Tort
 
Parties A v. B
         I.      A will sue B for strict liability in tort (SLinT)
1.        SLinT Rule:  (CSDUUD)
·         Rule: To prove a cause of action for SLinT, Π must show that Δ is a commercial supplier who has put a product into the stream of commerce in a defective condition unreasonably dangerous and unaltered it caused Π damage.
·         This applies even if the seller has exercised all possible care and no contractual relationship exists
·         Exceptions
o    Open and obvious dangers
o    Unavoidably unsafe products (i.e. a rabies vaccine)
2.        Damages
·         Rule: To recover in SLinT Π must suffer either personal injury (PI) or property damage (PD)
                                                                            i.      Pure economic loss in not recoverable in SLinT. Damage to the product is economic loss.
                                 

tailer.
·         Implied Warranty of Fitness for a Particular Purpose: buyer has conveyed a need for a particular purpose and relies on seller’s expertise to fill that need. (Note: the person on whom you relied for their expertise is liable, not defendants higher up in the chain.)
2.        Damages: PI, PD, and Economic Loss only with privity of K
·         PI also allows Π to recover economic loss
·         Damage to the product is economic loss
·         Consider possible negligence damages
3.        Proper Parties:
·         Π – A proper Π for an implied warranty is any foreseeable Π with personal injury, property damage, or who has privity of contract and suffers economic loss. (This can be in the horizontal or vertical chain of distribution.)
·         Δ
o    Merchantability: A proper Δ is any commercial seller who has passed the product on in the chain of distribution.
o    Particular Purpose: a proper Δ is any commercial seller who hears the special needs of the purchaser and exercises their expertise in filling that need.
4.        Causation (Actual and Legal):
5.        Defenses: (DUCK)
·         Disclaimer (Not available for PI)
·         Unforeseeable Misuse
·         Knowing Misuse (Assumption of Risk)
·         Comparative Fault
Chain of Distribution
 
 
 
 
 
 
 
Negligence
Click here for Negligence flow chart
 
Parties A v. B
1.       A will sue B for negligence.
Negligence Rule: To prove a cause of action in negligence, A will have to prove that B owed him a duty to the applicable standard of care and that a breach of that duty was the actual and legal cause of his damages.(Mnemonic: DSBALD)
 
 
Issue: Duty   
AFFIRMATIVE ACT
a.        Three Exceptions to “affirmative act” duty:
·         Land Occupiers (replace this section with Land Occupiers duty analysis)
·         Negligent Infliction of Emotional Distress(replace this section with NIED duty analysis)
·         Wrongful Life, Wrongful Birth (replace this section with Wrongful Life/Birthduty analysis)
b.        Rule: Any time you do any kind of affirmative act, you automatically owe a duty of reasonable care to anyone who might foreseeably be injured by this act.
§ Palsgraf: two views on who is owed a duty of care
o    Majority view (Cordozo): holds that a duty is owed only to foreseeable plaintiffs located in a foreseeable zone of danger.
o    Minority view (Andrews): holds that if a duty is owed to anyone, the duty is owed to all. 
§  Wrongful Injury of an unborn child is recoverable in a majority of jurisdictions, but not in the minority including CA.
§ Fireman’s Rule: no duty owed if fireman injured by conditions of the fire; owe a duty to warn of hazards other than fire.
§ Employees: owe a duty on behalf of employees acts performed within the scope of their employment. (See also Vicarious Liability.)
§ Contractors: normally do not owe a duty on their behalf unless performing an inherently dangerous activity. (See also Vicarious Liability.)
§ Negligent Entrustment – if you allow an impaired person (drunk or otherwise) to borrow your car, machinery, gun, etc., you are liable. You are liable for YOUR own negligence in letting them borrow it (not in their negligence)(borrower may also seek compensation under this theory).
c.        Analysis: Here,
d.        Conclusion:
OMISSION (FAILURE) TO ACT
a.        Rule: Generally a bystander is not liable for failing to act if they had no role in creating the risk associated with the harm or aggravation of harm. No duty to assist is owed. However:
·         Negligent injury by D: duty to take reasonable affirmative action to aid him.
·         Innocent injury by D: creating a dangerous condition in the highway creates a duty to take reasonable precaution against injury to persons using it.
** 2 Exceptions to the General Rule:
1)       Induce reliance by promise or act – A duty to act may be imposed whenever the D assumes a responsibility to act and such undertaking increases the risk of harm or is relied upon by the P to her detriment
2)       Special Relationships – Some relationships will impose a duty on the defendant to act:
                                                                i.      Duty to Care- Where Defendant has a duty to care for Plaintiff, there may be a legal obligation to take positive or affirmative steps to effect the rescue of P who is helpless or in a situation of peril:
·         Business/invitee: you get an economic benefit from them being on your land. 
·         Employer/Employee
·         Parent/Child
·         Spouse/Spouse
·         Jailer/Prisoner
·         Common Carrier/Passenger
·         Innkeeper/Guest
Component Mftr
Component Mftr
Component Mftr
Manufacturer
Buyer
Retailer
Distributor
User
Bystander
Vertical Chain of Distribution
Horizontal Chain of Distribution
SLinT: everyone who touches the defective product is liable under SLinT.
Negligence: if manufacturer is negligent and others are not, then only mftr is liable for negligence.