Torts Outline

I. Intentional Torts
A. Assault
1. Actor intends to cause “harmful or offensive touching” with the person of the other or a third person or imminent apprehension of such a contact; or
2. if the actor knows with substantial certainty that the action will cause apprehension of a harmful or offensive touching; and
3. the other is put in such imminent apprehension.
a. Apprehension is different from fright – you don’t have to be actually scared (can use self-defense).
b. It is sufficient for apprehension that the π know that the harm will occur unless something else occurs to intervene.
c. It depends more on the apprehension created in the mind of he person assaulted than upon what may be the intent of the person committing the assault.
B. Battery
1. Actor Intends to cause unlawful harmful touching, or knows, or should know, with substantial certainty that his actions will cause such harm.
a. Intent to commit act is what controls not the intent to cause harm.
i. Ex: Boy who puts rubber ball in pool drain he mistakenly believes to be not sucking is liable.
b. Transferred intent – intent to commit harmful act is transferred to a third party who is struck inadvertently.
c. Substantial certainty – Ex: boy pulls chair out from under old woman as she sits.
2. π does not consent to the touching.
a. Implied consent – arises from circumstances.
i. Ex: victim of accident has implied consent to emergency medical services.
ii. Ex: kids playing on playground have implied consent to foreseeable injuries.
iii. Counter Ex: doctor is liable when he performs surgery on left ear when patient consented to right ear.
b. Substituted consent
i. Ex: a parent or guardian can consent for a minor or incompetent to undergo surgery.
ii. Can be overridden if induced by fraud or non-disclosure of material fact.
c. Duty of Disclosure – true consent can not be given in absence of all material facts.
i. Ex: Doctor must disclose reasonable risks and benefits involved in medical treatments and non-treatments.
d. Volunteers cannot recover for the reasonably foreseeable injuries they incur.
i. Ex: Illegal prize fighters cannot recover from each other, but may recover from the promoter as the driving force because they are the intended class of persons to be protected.
ii. Ex: Football player can recover from blatant injuries contrary to the rules which are not inherent risks.
II. Nonconsensual Defenses
A. Insanity
1. Insane persons can be held liable for intentional acts, epileptics are not held liable for uncontrollable acts because as between two innocents, let the actor bear the burden, and guardians of insane persons can be deterred.
B. Self-Defense
1. Actor must be in imminent apprehension of receiving great bodily harm.
2. If the actor wounds a third party inadvertently while taking reasonable steps to defend himself, there is no liability.
a. Ex: shop owner purposefully shoots cop who he thinks is a rioter coming to get him.
C. Defense of property
1. Force may be used to repel actual force.
2. Force may be used to repel intruders when they fail to desist after being requested to stop.
3. Force intended to cause grievous bodily harm.
a. Policy: replaceable property is not as valuable as personal safety.
b. Booby traps or spring guns cannot be used solely to protect personal property because they do not discriminate between innocent trespassers and thieves.
c. Deadly force can be used to protect dwelling places because if the owner were home, he could reasonably construe the breaking and entering to be an assault.
d. Force may be used to protect property which is not replaceable and has enourmous social benefit. Ex: cure for AIDS where there is only one vial.
D. Recapture of Chattels
1. Force is not authorized to get property back from a person who peacefully possesses your property under mistaken claim of right.
a. Policy – a victim cannot be the arbiter of his own claim, public order and peace are of greater weight, right of defense but not redress.
b. Ex: employee who takes $50 back pay from payroll cannot be beaten-up by his employer.
2. Peaceful repossession is allowed when done in “hot-pursuit” against someone who has taken under fraud, force or without claim of right.
E. Necessity
1. Actor who cannot control his movements while exercising a strict right.
a. Ex: mooring a boat to protect life and property during a violent storm is not unlawful.
2. Actor may be liable for damages while protecting his own more valuable property at the expense of another’s.
a. Ex: cargo ship moored to dock during storm damages the dock.
b. “Incomplete privilege” – ∆ may cause harm if he pays for it prevents “Unjust enrichment” where the cargo ship owner walks away unscathed.
3. “Public Necessity” -a public official may act with immunity if he damages a person’s property to benefit the public at large.
III. Strict Liability v. Negligence.
A. Policy
1. Strict Liability
a. ∆ internalizes the costs imposed on others as if he were the injured party (as between two innocents…)
b. Eliminates difficulty in determining “standard of care”
i. Reduces litigation costs in individual cases; however
ii. Gives incentives for more lawsuits, raising costs overall.
c. Net transfer of wealth from class more likely to reinvest it to a class of victims.
2. Negligence
a. π internalizes the costs he would not have avoided.
b. Requires determination of “standard of care” and “reasonableness”.
i. increases cost of litigation in individual cases.
ii. reduces number of lawsuits because costs of litigation outweigh expected compensation.
c. Wealth remains with class who is productive and takes reasonable calculated risks.
B. Strict Liability
1. Rylands v. Fletcher
a. An actor is strictly liable for trespass, even if he was morally innocent and had no knowledge that his actions would cause damage. – Judge Bramwell at court of Exchequer.
b. A person who for his own purposes brings on his lands and collects anything likely to do mischief if it escapes is prima facie liable for all damages which are the natural consequences of its escape. – Judge Blackburn at court of Appeals
i. Proper defenses are contributory negligence, and Acts of God.
c. A person who uses his land for any non-natural purpose, and in consequence of doing so, causes damage to another’s property, is liable for the damages arising from the non-natural use. – Judge Cairns at House of Lords.
i. Building owner is not liable when third person causes plumbing to overflow because indoor plumbing is necessary in modern society and not non-natural. Non-natural means not ordinary.
2. Respondeat Superior – an employer is strictly liable when his employees are liable (either strictly or negligently) for damages that they caused while in the course of their employment. Does not include private contractors.
C. Negligence requirements- Duty, Breach, Causation, Damages.
D. Standard of Care determination
1. Objective Standard – did ∆ act reasonably under all the circumstances?
a. more likely to take into account practical circumstances when actions can be deterred.
ii. Ex: blind person will not be held liable for his lack of sight because his blindness can’t be deterred.
b. Brings substandard behavior up to the average level because general public safety demands it, otherwise stupid people have built-in defense.
c. Beginners held to an average skill standard because of public reliance and safety.
d. Children a held to an adult standard when they engage in dangerous adult activities. – Ex: teenager driving a car, operating heavy equip., shooting a gun.
2. Subjective Standard – did π act in good faith?
a. Difficult to determine mindset of actor.
b. Policy – do not deter heroism, do not penalize reliance.
3. Foreseeability – negligence not strict liability.
a. Sudden medical afflictions are not foreseeable – Ex: heart attack while driving, therefore no liability.
b. Recurring medical conditions are foreseeable – Ex: sudden mental delusion while driving creates liability only when there is a history of mental delusions.
c. Protecting the disabled – persons are required to take reasonable precautions to prevent harm to those who cannot protect themselves due to physical disabilities – Ex: blind pedestrian falls into un-barricaded hole in sidewalk.
d. Valid lack of knowledge precludes foreseeability – Ex: honking horn in good faith to warn ships is not negligent.
E. Cost-Benefit (Economic) Theory of Negligence
1. Actor is liable if he fails to take precautions where B < P*L (Hand Formula).
a. Ex: barge owner fails to man his barge during daylight in a crowded port – high degree of risk, low cost of labor in comparison.
b. Problems with strict application of this formula:
i. Forget to calculate all possible precautions.
ii. Forget to calculate all possible injuries.
iii. Units discrepancy.
iv. Marginal precautions- it may be that only the first $100 spent was worth the benefit gained, even though $150 spent still satisfies B<P*L.
v. Assumes a risk neutral person with full knowledge of the costs/benefits.
2. Don’t have to take precautions for which the costs outweigh the benefits.
a. Ex: power lines fall on telephone lines and cause shock – too remote a risk, too expensive to prevent.
b. Ex: person falls and burns face on steam pipes under a sink – too remote a risk, not liable for unforeseeable uses.
F. Custom Theory of Negligence
1. Precautions that others in the profession deem necessary.
2. Most representative of good cost/benefit analysis when the custom involves competitive businesses, or one’s own safety, but not the safety of strangers.
3. Difficult to determine how to group the profession – frame grouping so as to minimize losses and costs while mazimizing deterrence.
a. Ex: Doctors are held to national standard rather than local standard of care because of modern access to technology.
b. Ex: Should tugboats carry weather radios if they are local tugs, tugs of a certain size, cargo, time of day, etc.
4. Custom may be used as evidence of reasonable care but is not the strict measure of reasonable care.
a. Ex: Opthamologist not performing inexpensive glaucoma test on persons under 40. (risks outweigh the costs.)
b. Ex: Doctor must inform patients of all risks that would affect a prudent patient’s decision to undergo surgery, even if his custom is not to inform so he won’t scare the patient.
IV. “Per se” Negligence.
A. Negligence becomes a question of law not fact for the jury.
1. Policy – judgment of legislature deemed probably more wise than judgment of an individual or a jury.
2. Policy – reliance on the presence of a stop sign, whether or not it is reasonable.
B. Violation of a statute is negligence per se, unless it can be excused by circumstances such as necessity.
C. The violation of a statute that is technically defective is still negligent because it still represents good social benefit.
D. Old statutes that are no longer enforced are not strict measures of negligence.
1. Policy- Evidence that the ordinary person’s judgment was correct over the judgment of the legislature.
2. Policy – there may be reliance on the violation of a statute- Ex: persons crossing a yellow line before they turn because it helps them see better.
E. Only the class of persons intended to be protected by the statute (either express or implied in the statute) can recover and only for the character of injuries it was designed to prevent.
F. Violation of a statute is not negligent if it following it to the letter would put the actor at a greater risk because legislative intent was not to increase risk.
G. Violation of the statute must be proximate cause of injury.
1. Just because a license is required does not mean that practice without a license is per se negligence.
a. Ex: operating a car without a driver’s license is probably not per se negligence.
i. Policy: It is easy for a jury to find if a driver is acting negligently, with or without a license, because they all have common driving experience.
b. Counter Ex: practicing medicine without a license is probably per se negligence.
i. Policy: It is very difficult for the trier of fact to determine negligence in medical cases, so a bright line is drawn.
ii. Policy – the legislature thought it so important to regulate t