Everything up to Products Liability – study A LOT
Products Liability – a little
Everything after Products Liability – at a regurgitation level (if it’s even on the exam)
Assigned problem – will utilize on Final Exam
Four basic goals: IRAC
Rules and explanations of rules (be aware that there may be multiple rules)
Before you come to the exam, make sure that you have an organized and complete articulation of the rules and regulations of the cause of action
Be able to articulate the rules like you would do to a court as a lawyer would
Be careful of the terminology that you use and use the terminology that the court would
Remember that some sub-rules have ambiguity and variation
Policy and theory
Why do we have this rule
Why are there objections/support for this rule
**Umbrella issues – putting the particular issues you are talking about in context**
Remember to state that what is being talked about is a tort à Define a tort
Types of torts (intentional/negligence)
Put what we are talking about into a larger and broader context
Better to over-articulate than to leave something out
Most Prevalent Issues that Students Have with Exams
Focusing so much on one topic, that you leave out some important information that may also be considered a tort
Us a post-it not to write down all of the different types of torts so that you have them all in front of you
Seeing a problem that isn’t there and spending a lot of time talking about and not enough time on more important issue
Try rank-ordering the issues and spending the most amount of time on what you are most sure about and at least some time on those that you are not as confident about
Too easily (and wrongfully) dismissing a claim
Missing something ENTIRELY
Outline of claims
v George: Batter/assault
v No malice or ill will. No direct contact by Kramer – rather, contact with water. May not be fearful of water. Seems to be no damage.
§ For exam, remember to include easy connections like, malice is not a requirement for batter; not a matter of being fearful of water, but an apprehension of contact. à probably not a fearful contact, but it may be an offensive.
¨ How much water was it? (a drip or a gush)
¨ How does the “crowded world” theory tie in?
v Elaine: Battery and maybe assault
Ø Definitely an intent issue – not clear from the facts where Kramer could even see her. No malice or ill will. No direct contact with Kramer. And for the assault, not clear that she apprehended anything.
§ Don’t know whether Kramer saw her, so don’t know whether or not there was intent
§ Intentional battery on George à transfers to Elaine
§ No apprehension or fear on her part because she did not see it coming
§ She likely did not see it coming – the fact that she slipped makes it more likely that she didn’t see it coming.
MAKE SURE YOU ADDRESS THE AMBIGUITY OF THE CASE FOR EXAM
§ Did George have apprehension of contract?
§ How much water was there
§ Did Elaine see the puddle
v Kramer: Assault and intentional infliction of emotional distress
Ø No fear of imminent contact; IIED – is this outrageous enough/intent?/but lots of damage.
§ Even if you consider that Jerry knows Kramer’s fear, he may not have had the intent to inflict serious emotional distress.
§ Was Jerry’s conduct outrageous enough?
§ On the assault – there as no assault because there was no fear or apprehension of offensive contact à because the garden gnomes are inanimate objects
v And then the city maybe or the owner of the sidewalk (if it is a private sidewalk) could bring a trespass claim.
Ø Intent?/Kramer does not touch
Remittieder – a reduction in the jury’s awarded amount to the plaintiff
à option of either taking the reduced amount or filing for a new trial
Categories of Torts
Intentional torts (requires some sort of intent)
tortfeaser – defendant
Intentional Infliction of Emotional Distress
Trespass to Land
Trespass to Chattels* (not very important)
Strict liability (a personal is automatically liable, despite the amount of care)
Voluntariness – is a requirement of intent, but does not guarantee intent.
Restatement of law – law out the black-letter law across all 50 jurisdictions and tries to unify it (IT IS NOT THE LAW)
Courts refer to it as persuasive law
Some courts have actually adopted the restatement as their state’s law.
What are the elements of the cause of action?
Nominal damages – A trifling sum awarded when a legal injury is suffered but when there is no substantial loss or injury to be compensated.
INTENT – Intent is something that rarely comes up in most tort cases
**Most of the time it will be pretty apparent**
The act must be done for the purpose of causing the contact [or apprehension] or with knowledge on the part of the actor what such contact or apprehension is substantially certain to be produced.
“It is not enough that the act itself is intentionally done and this, even though the actor realizes or should realize that it contains a very grave risk of bringing about the contact or apprehension.”
Consequences of Proving Intentional Torts v. Negligence
§ The amount of money that can be asked for
rom doing bad things to public
§ It wouldn’t be right if insane person has lots of money, for the insane person not to pay up to the one they offend.
ASSAULT –Restatement (Second) of Torts § 21 – Assault
(1) An actor is subject to liability to another for assault if:
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and (b) the other is thereby put in such imminent apprehension
Must be an imminent threat of harmful or offensive contact – future threats are not enough
Ø Must have apprehension à NOT THE SAME THING AS FEAR
Ø Must have an apprehension that one is going to be touched in a way that they have a right not to be.
Proximity (must be reasonable distance to believe that you are in imminent danger) à (threat comes from a person in a different state)
Ø Close physical proximity, time, and actually a threatened harm and not a hypothetical harm [ex: if I were the man I used to be, I would hit you])
Elements: an act by the D that puts the P in apprehension of an imminent – bodily contact that would be harmful or offensive.
The D must intend his act. Beyond that, the D must also intend either: a) to put the P in apprehension of a harmful or offensive contact or b) must intend some other trespassory tort, such as battery.
No actual contact is required.
Words alone can never constitute an assault – words obviously occur within a context and the surrounding events or actions are material. Words uttered by an assailant with a gun are different than those same words used in jest between two unarmed friends.
Principle of Extended Liability: A D who is guilty of an intentional tort, at least one that involves conscious wrongdoing, is liable for all the damages caused not merely those intended or foreseeable.
Imminent: must fear harm occurring very soon.
1. The apprehension created by the assault must be one of immediate harmful or offense contact – not contact in the future. (Dickens v. Puryear) Four men attacked P and beat him into semi-consciousness, cut his hair, threatened him with castration and death if he didn’t leave the state. Not assault b/c of words implying future harm.
Sleeping Beauty – a battery takes place because there is physical contact, but there is no assault because she cannot see the kiss coming