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Legal Profession
Santa Clara University School of Law
Manaster, Kenneth A.

Prof. Kenneth Manaster Torts 2014 Fall

A. General Principles

Within each lawsuit, can plaintiff prove Prima facie case?

a. If no, end of analysis.

b. If yes, does defendant have any affirmative defenses?

1. Vicarious liability: employer is liable for employees’ tort if within the scope of employment.

2. The nature of P

· Supersensible P: a reasonable person would not have been hurt by P – D is not liable unless he knows the super-sensibility.

· Thin-skull rule: a reasonable person would have been harmed, but the degree of harm would not be as severe – D is liable for the whole thing.

3. Everybody is liable for intentional tort, including kids, mentally illness

4. Transferred intent.

a) From person to person.

b) From tort to tort (5 torts: Not IIED and conversion)

c) Both

Intent can only transfer if there was a tort to begin with. If there was no tort, intent (to cause contact .e.g. ) can’t transfer to other P.


1. Battery: is an intentional act of causing contact to another person which is considered harmful or offensive to a reasonable person.

1) Contact: direct physical contact or objects closely associated with the body (anything touching/holding, or has to be intimately associated)

2) Causation: but for…

3) Intent: on purpose or knowledge to a substantial certain the contact would happen.

4) Harmful or offensive: what a reasonable person under the circumstances would find harmful or offensive

2. Assault: is an intentional act of causing another person to feel apprehension of imminent bodily contact/harm

1) Act: physical conduct

2) Intent: specific intent

3) Causation: but for…

4) Consequence: apprehension of immediate bodily harm

I. Apprehension: the perception/knowledge that harmful contact will result

a) Reasonable

b) Not fear or intimidation

c) Apparent ability, not actual ability, to create an immediate apprehension

II. Immediacy

III. Bodily harm:

a) words alone not enough, has to be coupled with conduct.

b) Undue conduct

c) words undo conduct and reasonable apprehension

5) P’s ability to fend off attack is not a defense to assault.

3. False imprisonment: intentionally restraining another person to a bounded area who is aware of the confinement

1) Sufficient act of restraint

a. Threat is enough, force not needed

b. Inaction. Obligation to act. Boat case?

c. P has to know confinement at the time.

2) Confinement: limit one’s ability to move by physical barrier or threats of force

3) Bounded area (not just inconvenience): bounded in all directions in which a reasonable person would not find a safe path through.

4) Not bounded if a) there is reasonable escape (sewage pipe not reasonable), and b) plaintiff has to know the escape

4. IIED: outrageous conduct intentionally or recklessly causing severe emotional distress to another person.

1) Act: outrageous conduct.

Plaintiff sensitivity considered (small kid)

Continuous and systematic can contribute to outrageous

2) Intent: intentional or recklessness

3) Causation: actual and proximate

4) Consequence: Substantial emotional distress (damage)

Physical symptoms no longer required in most states.


5. Trespass to Land: intentionally invade another person’s property.

1) Defendant invade plaintiff’s property

2) Physical objects, not music

3) Includes up and down from surface, reasonable distance

6. Trespass to Chattels

Intentionally Interference with the right of possession of personal property.

Small damage/ short term dispossession: trespass to chattels.

7. Conversation

Intentionally dominate and control over a chattel which so seriously interferes right of possession of personal property that the actor may justly be required o pay the full value of the property.

· the extent of duration of actor’s exercise of dominion or control

· The actors intent

ozo View (Majority): no duty owed to unforeseeable Ps (those who are outside the foreseeable “zone of danger” (also discussed in NIED) are unforeseeable Ps)

b. Andrews View: if there is a foreseeable P, then every P is a foreseeable, because duty owed to a foreseeable P (if there is one) “transfers” to an unforeseeable P.

· Compensation (someone should pay V):

· Deterrence: yes

· Corrective justice (who should pay):

– fair because D already negligent to someone (who luckily did not get hurt).

– If no foreseeable V at all, unjust to impose liability for results/persons they need not be thinking about? Otherwise people can be too timid to do anything.

3. Special situations:

1) Rescuers are foreseeable Ps (policy to encourage people to help)

2) Fetal injuries are foreseeable (don’t hurt a pregnant woman)

B. What level of care?

1. Physical disability held to reasonable person with such disability.

2. Children

Age <4 – do not owe standard care, not negligent

Age 4-18: held to reasonable children with similar age and experience (intelligence???), unless engage in adult activity.

3. Lower mental capacity held to the same standard as reasonable person. [Vaughan v. Menlove], “dumb as toast” doesn’t negate liability.

4. Intoxication is irrelevant – held to a reasonable sober person.

5. Custom: admissible but not conclusive.

6. Emergency: yes, a reasonable person in emergency, having little time to decide

7. Owner and occupiers of land

1) Invitee (formal invitation for business purpose): public place: museums, churches, airports, stores, schools, work place.