TORTS OUTLINE
v *** If the call of the question says, write a memo to the advising partner advising her of the liabilities – put it in a memo format!!!
v ************KNOW LATIN TERMS************
INTENTIONAL TORTS
v all intentional torts: intentional, and unlawful – w/o justification or excuse
Ø Justification & excuse is not the unlawful part – it is a defense
v Liability Based Upon Fault
Ø damnum absque injuria: loss, hurt or harm without an injury does not give rise for an action for damages
§ Anonymous changed this theory – because it says that there is liability with out fault
· Protecting the public policy:
¨ 1. Right to bodily integrity
¨ 2. Right to the protection of your property (right to property)
¨ (court does not care why it happened, b/c the other person is completely innocent)
Ø voluntary v. involuntary acts
Ø ROL: In a lawful act, the defendant is not accountable for injury if the injury was unavoidable & the defendant was using ordinary care
§ Inevitable accident: an occurrence which is not intended & based on all circumstances could not been forseen or prevented by exercise of reasonable care.
· possibility of not being liable if the defendant can prove it was an inevitable or unavoidable accident
§ If ordinary care is used, plaintiff can NOT recover
· “ordinary care” – signals negligence based on what a prudent man would do
¨ ordinary care standard varies according to facts & circumstances
¨ distinction between ordinary care & extraordinary care – extraordinary care: higher standard: because it tells you how your behavior should be (little wiggle room)
Ø If after using extraordinary care, there is still a high degree of risk, the defendant bears the burden
§ Absolute liability – for certain acts because they have such a high cost of damage
· Don’t have to intend it, or prove negligence either
· PP: right to be free from injury on your own property
¨ Even if it is not intentional, or benefits society
Ø ROL: One who is suddenly stricken ill, which he had no reason to anticipate, which renders it impossible to control the car – not liable
§ PP: One should not be liable for acts that you cannot control (or beyond your control)
§ For Recovery: Plaintiff has the burden of proof to show that the person was ill before getting into the car or knew that there was a possibility of getting ill.
· The law requires the at the acts were voluntary to be liable
· Ex. Having a seizure 14 yrs later – you are not expecting it – not liable
· Ex. If you have reason to believe you have a heart attack – then you took on the risk & voluntarily drove & injure somebody – liability
· Ex. If you had no idea you were going to have a heart attack – no liability
§ If acts are involuntary (ex. while you are unconscious or asleep) – no liability
Ø ROL: Right for private information to be withheld (within Doctor & Patient)
Ø ROL: Responsibility extends from Doctor to Patient, and is not extended to a third party
§ ex. doctor prescribed medicine to patient & did not warn patient of the side effect of drowsiness. patient drives a car, falls asleep and kills passenger. Passenger does not have a case against the doctor
· Example of wrong with out a remedy
Ø Trespass via etarmis – action to recover for damages resulting from the direct or immediate injury inflicted by one party against the person or their property
§ Trespass with force in arms – you use some kind of force to damage my chattel
Ø Trespass quare coausem freg – trespass by reaching the plaintiff’s boundaries; by breaching a persons’ boundary
Ø Respondeat Superior: let the employer answer. Employer is responsible for the acts of its employee if the employee is acting with in scope of the employment
v Intent: 3 types:
Ø 1. General Intent: setting in motion a chain of events knowing with substantial certainty that the result will occur
§ Law does not require that you have the intent to harm – just intent to do the act
· D becomes liable for reasonably foreseeable consequences, thou the exact result in damages were not contemplated
§ A 5 yr old child can have intent – is set to the same standard as an adult (A child can entertain the thought of being malicious)
· 4 yrs & below – cannot form intent – not liable for intentional torts
· Ex. the boy knew that if he pulled out the chair, then the lady will fall & hit the ground –liable
¨ He had no intent to break her hip, but he intended to touch her in a way that he had no right to do, without privilege; he had no right to touch her (ground acting as the agent)
Ø 2. Specific Intent: purpose or design to cause the harm or injury
§ when the defendant acts with specific knowledge to bring about specific circumstances (outcome) (e.x. punching someone – u know its going to hurt) – liable for an intentional tort
¨ Ex. If you meant to break her hip
Ø 3. Transferred Intent: thisdoctrine permits the plaintiff to prove intent by proving that the defendant intend to do 1 of the 5 intentional torts, but instead accomplished any one of the other 5 intentional torts
§ Battery
§ Assault,
§ False Imprisonment
§ Trespass to Chattel
§ Trespass to Property/Land
§ you had the intent to do the act, even if you did it to the wrong party
· Ex. liable for battery if you intended to do the assault
§ 3 basic scenarios: “transferred intent is when…”
· 1. intent to do one tort, but accomplish another
· 2. intent to harm one party but harm another
· 3. intent to do one tort or harm to 1 party & accomplishing that and doing harm or a second tort to another party
§ PP: the law does not want to permit people getting away with the tort
§ PP: deterring antisocial behavior
§ Ex. if Mark throws a rock at a tree and hits Barbara – No transferred intent – no liability for an intentional tort- because there is no tort law regarding the tree; it would probably be negligence
Ø ROL: Good Faith and Mistake do not negate intent (can still be liable – b/c you have general intent – you had intent to act)
§ You do not have to prove bad motive
§ Mistake à still an intentional tort (even if no injury à still liable) – outcome not the issue
· Cannot make a mistake as an intentional tort but if you make a mistake in asserting a defense or a privilege to do an act – u can be absolved (ex self defense) – as long as its reasonable
§ PP: You are responsible for your own actions
§ PP. floodgates – if everyone claimed they were well intentioned.
Ø ROL: Mental Illness does not negate intent. Held to the standard of a normal person (majority rule of law)
§ No malice, logic or rational thought process required
· Patient has to have entertained the thought, even thou it is not rational
· Child & insane person: can have intent (even if it is not logical and if they did not understand the consequences)
§ Public Policies:
· 1. An insane person must pay for his support & pay for the damages that he has done
¨ the injured person should have a remedy
· 2. An insane person with abundant wealth should not continue in unimpaired enjoyment of that wealth, while the victim bears the burden of the harm unaided.
· 3. Don’t want to have to determine whether someone is insane or not
· 4. It makes the person watching the behavior (ie. Nurse) much more watchful???????????
§ Public safety issue – safety of the caregiver
§ If it is a sudden onset of insanity – there is not civil liability
§ Assumption of the risk: you know what the risk is, and you willingly take it on (minority rule of law)?????
Ø ROL: Voluntary intoxication does not negate intent – you have general intent – you knew you were getting drunker when you were drinking – thus liable
§ Ex. You become drunk & attack someone – liable
Ø Intent can be inferred relying on circumstantial evidence
v Battery: the intentional touching of another, whether direct or indirect, which is harmful or offensive without justification or excuse
Ø Touching
§ direct or indirect – you can use your hand, or a rock or stone or any other agent
§ ROL: the touching element of battery may be satisfied by contact with something so intimately connected with the body as to be customarily regarded as part of that person. (agent)
· The very fact that you touched somebody – is the damage
¨ (Touching under negligence – you have to show real injury or damage)
· It has to be attached to you
· If an object is next to you, but not touching you – then it is not battery (it could be trespass to chattel)
· Ex. If someone snatches something from your hand – battery
· Ex. If you are sitting in your car & someone touches your car (minority – says battery, majority says not battery – because it s not that intimately connected to you)
· Ex. you pinched me – no damage, but it was an offensive touching so you can recover
Ø harmful and offensive are distinctive – in order to prove battery, you only have to prove 1
§ Offensive – if it causes the person to suffer from humiliation and indignity
· Don’t have to show actual physical harm
· Ex. spitting in someone’s face or knocking off their hat – could be offensive
· Ex. Putting gravy in someone’s pocket
Ø ROL: In a crowded world a certain amount of personal contact should be expected
§ Time, place and circumstances critical
Ø ROL Most jurisdictions do not require that you touch in anger (majority)
§ Liable whether I am conscious or unconscious when you batter me
Ø PP: protecting right to bodily integrity &dignity
Ø Ex. blowing smoke into someone’s face who you know is allergic to it
§ Intentional act – you know and you do it anyways – battery
§ If you did not know of the allergy – no battery
Ø Ex. May be liable if you pulled a practical joke, even u believed the plaintiff wouldn’t be harmed
§ Mistake does not negate intent
Ø Ex. a kid lightly kicks his friends’ leg and he has to have his leg amputated
§ If you have an intention to kick – you are liable – even thou you don’t have the intent to cause the injury (or even if you didn’t know that it would occur) b/c you set in motion a chain of events
· There has to be a causal link – Ex. you tap someone in the shoulder and someone goes blind – liable for the battery, but not for blindness (someone going blind from a touch not highly likely)
Ø Ex. you touch someone after they have asked you not to touch them – battery – b/c no consent
Ø Ex. if you have aids and you don’t know & sleep with someone, infecting them – not liable for battery or assault – b/c you have no intent (May have a claim for negligence –should have known of the disease)
v Assault: the unlawful, intentional placing of another in apprehension of imminent bodily contact with the apparent ability to carry it out
§ Apprehension: an uneasiness of mind – Has to be imminent apprehension
§ The law does not require that one has the ability to hurt you – they just have to take over your mind
· Fear vs. Apprehension
¨ Apprehension is required for the tort (not fear)
¨ Fear goes beyond apprehension
Ø If you can demonstrate fear, you get greater damages
Ø ROL: in order for there to be an assault there has to be some movement towards the person
§ Leering, lip smacking, licking from a distance is not enough
§ (ex. if a person is standing 4 feet away licking his lips and leering & no movement towards her)
§ if at a distance away, and not moving towards you (standing still) – no apparent ability
Ø ROL: mere preparation does not constitute assault
§ Ex. Picking up rocks and not making any movement towards him – not an assault
§ Ex. caring a gun to an interview in your brief case – not an assault
§ Ex. if you take the gun out and lay it on the table – an assault
tice.
§ A reasonable person standard – how would a reasonable person react
§ Ex. A stranger does not have to know that you are particularly sensitive about your smell
§ Ex. if he knew that she was sensitive –the he would be liable
Ø ROL: If you have knowledge of my special sensibility & you exploit them, then you are liable (b/c you are exploiting someone’s weakness)
Ø ROL: Mere verbal insult is not enough
Ø ROL: many states – racial treats are not actionable
Ø Minority: Subjective standard – based the particular individual involved (not used in this case)
Ø Ex. IF B pushes C and tells her she stinks – he would be liable for battery and IIED
§ Public Policies
· 1. want people to develop a thicker skin
· 2. don’t want to turn every abusive outburst into IIED
· 3. people should be able to blow off steam and anger
Ø ROL: A Third Party Bystander can recover if
§ 1. he is a close relative of the primary victim
§ 2. he is present at the scene of the outrageous conduct
§ 3. the actor (the one causing the harm) knows that the close relative for the victim is present
· if actor doesn’t know he is there then no general or specific intent to harm the bystander
§ *under the restatement: it doesn’t have to be a family member – it can be anyone
§ ex. A is sitting on her front porch watching her husband B, who is standing on th sidewalk, C who hates B and is friendly to A, whose presence is KNOWN to him, stabs B, killing him. C is liable to A for the mental anguish, grief and horror he causes
Ø PP: protecting mental integrity – you can not damage or injure my psyche.
Ø PP: Everyone has the right to be free of severe emotional distress
Ø PP. law does not support antisocial behavior
Ø Traditionally recovery only allowed for physical injury – b/c of the absence of tangible physical injury & injury was hard to prove
§ Common carrier rule: the existence of a special relationship, arising either from contract or from the inherent nature of a non-competitive public utility, supports a right and correlative duty of courtesy beyond that legally required in general mercantile or special relationships
· Court look at common carriers differently b/c there is a special relationship btwn a person doing business and the customer
¨ Special relationship – you are responsible for treating them with dignity and respect
¨ Common carriers held to a higher standard or conduct and sometimes held liable for using insulting langue to their passengers and patrons.
Ø if you have contact with the public, you have responsibility to make sure they are safe
¨ You want to be safe when you are getting services – customer expects courtesies
¨ rule no longer exists– everybody is responsible for protecting psyche
v Trespass to Land: the intentional, unlawful entry upon the land and possession of another
Ø Actual damage not required – the damage is the invasion
Ø Law protects the possessor – the rightful possession of the property (law does not look at ownership)
Ø Force cannot be used to protect the land. It can only be used for self defense
Ø ROL: Trespass can either be by a person or thru an agent
§ Ex. X throws a bucket of paint into Y’s land – trespass by agent
Ø ROL: good faith and mistake does not negate the trespass; Motive is irrelevant (all that matters is that you violated another’s’ rights)
§ Ex. If you trip on accident and you trespass – not liable – accidental – no intent – not a voluntary act
§ Ex. if you are careless and trespass – negligent invasion – liable
Ø ROL: Continuing trespass occurs when one intentionally leaves an item (or remains) when one has duty to remove the item (or leave) & such trespass occurs during the entire time of the violation
§ For every single day that you fail to remove the action, you have separate case of action
· If it is not stopped, then it can become a prescriptive right, thus customary
· If there is a “no trespass sign” and it is ignored, it can become customary
§ License: a permission to do something on another’s land, and without that permission, the act would be unlawful
· A license is revocable at will – if I revoke the agreement then you have to leave
Ø Government immunity – No liability for negligent acts
Ø ROL: Exceeding a limit that you have been giving – trespass
§ Overstaying your welcome – actionable .
Ø ROL: If you enter a space where you have not been given permission – a trespass, even if you have permission to enter the property.
§ If you are in a house with permission, and if you don’t have permission to be into a room – trespass
Ø ROL: If you use more space than you have been permitted – trespass
Ø PP: protects the possessor of the land.
