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Temple University School of Law
Rogers, Brishen

Tort Law
Fall 2012
Prof. Brishen Rogers
I.                    Overall Themes of Tort Law
a.      Hammontree v. Jenner: Jenner crashed car due to epilepsy, while medicated.  Cannot apply strict liability to drivers. Not negligent b/c illness was unforeseen.
b.      Employers’ vicarious liability for their employees
                                                              i.      Christensen v. Swenson: respondeat superior – employers are liable when employees are acting within hours & scope of employment.
                                                           ii.      Ira S. Bushey & Sons:
                                                         iii.      Generally not liable for intentional torts by employees unless employer is furthering business interest of the employee when he commits the tort.
                                                         iv.      Lisa M. :
                                                            v.      Policy goals of : preventing future injuries, spreading losses (p. 22)
                                                         vi.      Berkner factors (p. 23) for relieving employer liability: employee acts for purely personal motives, if act is in no way connected to employers’ interests, or if conduct is unprovoked & highly unusual. 
c.       Alternatives to Tort: Workers Comp & other No-Fault Compensation Schemes.  Often guarantee limited compensation to P, but also deny P the right to sue in tort.
                                                              i.      Workers Comp – Employers must provide employees who suffer work-related injuries or disease w/medical & income benefits regardless of fault for injury.  Employees, in turn, must treat workers comp as exclusive remedy & give up common law tort claims.
                                                           ii.      Other Focused no-fault schemes: Black Lung Disease, Childhood Vaccine Act, Birth Related Neurological Injury, September 11th Compensation, Liability of nuclear Power Operator.
                                                         iii.      Why? If insurance is not otherwise obtainable, reduces administrative costs
                                                         iv.      What do they have in common?  Pooling mechanisms to compensate aggrieved parties, strict liability, often a cap on damages.
                                                            v.      Comprehensive No-Fault & Beyond (New Zealand)
II.                 Intentional Torts– require an intentional act, not accidents
a.      Battery
                                                              i.      RST 13: An actor is subject to another for battery if he acts intending to cause a harmful or offensive contact with the person…or an imminent apprehension of such contact AND a harmful/offensive contact directly or indirectly results (PFC Case for battery underlined)
                                                           ii.      RST 18: Unpermitted & intentional contact w/anything so connected w/the body as to be regarded as a part of the other’s person.
                                                         iii.      Intent: (RST 8A) the actor desires to cause consequences of his act or believes that consequences are substantially certain to result from the act (but the actor doesn’t necessarily seek to cause them). 
1.      Doesn’t have to be malicious – must look at whether the contact in question is ordinary & to be expected under the circumstances.
                                                         iv.      Harmful or Offensive contact w/Ps person (directly or indirectly): any contact that intentionally interferes with a reasonable person’s sense of personal dignity.
                                                            v.      Garratt v. Dailey: Did child have knowledge that his actions would cause P harm?  Even if Brian’s actions were not intended to injure or embarrass P, but he had knowledge that she was in the process of sitting down, intent is established.
                                                         vi.      Vosburg v. Putney: D reached foot across the aisle in classroom & touched P’s leg, aggravating existing injury.  The wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him. => eggshell skull rule (rule for DAMAGES!): D takes victim as he finds them – liable for all resulting harm, even if due to pre-existing condition.
a.      Trespass: intentional & unauthorized entry onto another’s property by self or an object under your control
                                                              i.      Unintended intrusions (RST 165): those resulting from reckless or negligent conduct or from abnormally dangerous activities.  Subject to liability only if intrusion causes actual harm.
                                                           ii.      Intentional intrusions (RST 158): liable in trespass for an intentional intrusion, irrespective of harm caused.  Intent = intention to enter space, doesn’t matter if known that property belonged to someone else.
                                                         iii.      Dougherty v. Stepp: surveyor entered onto land, thinking it was available for claim.  Unlawful entry onto land of another constitutes trespass, even if there is no damage.  Treading on grass/unauthorized entry = harm.                       
                                                         iv.      Brown v. Dellinger – children playing in neighbor’s garage w/charcoal burner liable for destruction when fire started
                                                            v.      Cleveland Park v. Perry: invited swimmer puts a ball in pool drain. Swimmer was allowed to be in pool, but ball wasn’t supposed to be in drain
b.     Assault
                                                              i.      RST 21: An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact w/ the person, or an imminent apprehension of such contact AND (b) the other is thereby put in such imminent apprehension
1.      Fear is not required, just “apprehension/anticipation of imminent harmful or offensive conduct.
2.      Threat must be immediate, close, & actual (not conditional)
1.      Extra-sensitive P: no liability unless D knows about hypersensitivity (RST 27)
                                                           ii.      Picard v. Barry Pontiac-Buick: mechanic shouted at P & lunged at her.  Offensive contact w/camera constituted assault & battery
c.       Trespass to Chattels & Conversion: intentional act of dominion or control over chattel which so seriously interferes w/right of another to control it that actor may justly be required to pay the other full value of the chattel (RST 222A). (Trespass covers real property, Chattel covers personal property).
                                                              i.      Merger doctrine (RST 242): P can recover for loss of intangible property if it is “merged” into paper document or other tangible property
                                                           ii.      Conversion available for “intangible property interests that do not strictly satisfy the merger test”.  Doesn’t require intent to do harm, but intent to intrude or interefere w/property.
                                                         iii.      Thyroff v. Nationwide Mutual Insurance: Nationwide leased Thyroff computer database, terminated contract & revoked his access to the database the next day.  Society’s reliance on computers & electronic data is substantial, if not essential.  It’s generally not the physical nature of the document that determines it’s worthier.  Therefore, protections of the law (conversion) should apply equally to both forms – physical & virtual. 
                                                         iv.      Intel Corp v. Hamdi: former employee sending critical e-mails about employer over employer’s e-mail system.  NOT trespass b/c caused no harm to computer system or disruption to systems operation
                                                            v.      CompuServe v. Cyber Promotions: spamer liable for trespass to chattels
                                                         vi.      Conversion: Conversion is an intentional act of dominion or control over chattel which so seriously interferes w/the right of another to control it that P may be entitled to compensation for the full value of the chattel.  (RST 222A)
                                                       vii.      Trespass to Chattel: interference is lest severe (property has not been destroyed or taken away). P obtains partial compensation.
d.     False Imprisonment: (RST 38-41) an unlawful and intentional restraint of an individual’s personal liberty or freedom of locomotion. (1) actual or apparent physical barriers, (2) overpowering physical force, (3) threats of physical force, (4) other duress, (5) [wrongfully] asserted legal authority.  Failure to provide means of escape when P is under your control.

to think.
5.      Coase Theorem: when parties have full information and can easily bargain, the rule of liability will not effect the cost of goods or services.  In such situations, sophisticated parties will simply use contracts to assign liability to whichever party can better protect against the risk.
                                                         vi.      Public Necessity: when there is a risk to the property of a sufficiently large number of people to make the risk “public” and that risk can be reduced or eliminated by damaging or destroying the property of the plaintiff.  Privilege is ABSOLUTE & a complete defense to liability.
III.               Accident Law
a.      Introduction to Negligence: the failure to exercise reasonable care to avoid injury or damage to another person or property.  Often split up as carelessness, foolishness, or selfishness.
                                                              i.      Prima Facie Case:
1.      Duty: generally a duty of reasonable care
2.      Breach: act or omission by D that demonstrates failure to take reasonable care
3.      Causation: “actual causation” & “proximate cause”
4.      Harm
                                                           ii.      Brown v. Kendall: seminal case.  2 dogs were fighting, owners tried to separate them w/a stick & D accidentally struck P as he was backing up.  Plaintiff has burden of proof & standard of care is “ordinary care”
1.      Pre-Brown, either trespass (direct harm) or case (indirect harm),  intention/negligence didn’t matter, and standard was “extraordinary care”.
                                                         iii.      Adams v. Bullock: Adams, 12 yr old boy, was swinging an 8ft wire while playing on a bridge above trolley track.  Burned himself.  D could not have predicted this, no reasonable care could have changed the outcome.  Ordinary caution would not have forethought this extraordinary peril.
                                                         iv.      Braun v. Buffalo Gen. Elec. Co: electric wires were strung from a vacant lot & hadn’t been checked in 15 years.  Carpenter was electrocuted.  Liable b/c lot was likely to be built on one day (in the middle of a city), wires could have been insulated, and they hadn’t been inspected/checked in 15 yrs.
b.      Ongoing contest between Negligence & Strict Liability: due care vs. ultrahazardous material
                                                              i.      Rylands v. Fletcher: Rylands owned a mine beneath a property where Fletcher built a reservoir.  Though not intentional, one party is taking on more risk than the other.  No negligence by Fletcher, but no risk was assumed by Rylands.  No liability if harm is due to P’s fault, if harm is due to “acts of God”; only liable for “natural consequences”.  Strict liability: though D was not negligent, he brought onto his land something, which if escaped, was likely to do “mischief”. 
                                                           ii.      Losee v. Buchannon: Buchanon’s steam boiler exploded & was catapulted onto Losee’s land, through several of his buildings.  Society must have factories, machinery => owners are not responsible for any damage accidentally & unavoidably done to their neighbor.  We all benefit from existence of factory, therefore must give up right to recovery w/o negligence.
                                                          iii.      Losee & Rylands still in competition
1.      Turner v. Big Lake Oil: Texas is arid climate, storage of water is a natural/necessary & common use of land, needed to maintain livestock industry.  Rylands not applicable when water escapes.