Torts Outline

TORTS OUTLINE – Fall 2014 – Prof King

Wednesday, August 20, 2014

8:27 PM

1. Intentional Torts

a. Battery

i. Act – A acts

ii. Intent – Intending to cause a contact with P

iii. Contact – A intends to make harmful or offensive contact

iv. Cause – A’s act causes P such contact

v. No Defenses

b. Assault

i. A acts,

ii. Intending to cause in P the apprehension of an imminent harmful or offensive contact with P; and

iii. A’s act causes P to reasonably apprehend such a contact

iv. No Defenses

c. Defenses

i. Consent

ii. Self-Defense

1. Mistake okay

iii. Defense of Others

iv. Defense & Recapture of Property

1. Mistake not okay

v. (NOT) Age

vi. (NOT) Horseplay

2. Negligence – Soundbytes

a. DUTY

i. In general, individuals have a general duty to exercise reasonable care to avoid causing harm to reasonably foreseeable individuals who may be harmed by their conduct. The duty owed is a duty of ordinary prudence and care.

b. BREACH

i. Whether the D acted with the degree of care she was duty-bound to exercise, or – put otherwise, or a failure to do something that a reasonably careful person would do.

c. CAUSATION

i. Causation generally requires that the plaintiff demonstrate that the plaintiff’s breach was the actual and proximate cause of their injury. Causation is important because liability only attaches when the breach of the duty was the cause of the injury. Actual causation requires showing that the breach was the “but-for” cause of the P’s injury. Proximate causation generally requires a showing that the type of harm suffered by the plaintiff was reasonably foreseeable to the D at the time they acted, and not a fortuitous injury that was not within the scope of foreseeable harm.

d. DAMAGES

i. Once the above has been shown, the general rule is that the plaintiff is entitled to fair and reasonable compensation from the defendant in light of the losses suffered as a result of the defendant’s negligence. Punitive Damages are available when the plaintiff proves either 1) wanton disregard, or 2) deliberate indifference.

3. Negligence – Duty

a. General Duty of Reasonable Care

b. Qualified Duties of Care

c. Qualified Duties of Care

i. No General Duty to Rescue or Protect

1. Exception #1: Defendant involved in injury

2. Exception #2: Voluntary Undertaking

3. Exception #3: Special Relationship

d. Premises Liability

i. MAJORITY: 3 Categories

1. Invitee

2. Licensee

3. Trespasser

ii. MINORITY:

1. Combine Invitee & Licensee

iii. Super Minority

e. California’s Duty Approach

i. Rowland Factors – Limiting 7 Public Policy Factors

1. Foreseeability of harm to the P

2. Degree of certainty that P suffered an injury

3. Closeness of connection between the injury and D’s action

4. Moral blameworthiness of D’s conduct

5. Policy of preventing future harm

6. Extent of the burden to the D & community of imposing such duty

7. Insurance availability & cost

4. Negligence – Breach

a. Defining the Reasonable Person

i. NOT Exceptions:

1. Sudden disability

2. Intoxication

3. Mental attributes

ii. Exceptions:

1. Physical Disability

2. Emergency

3. Professionals

4. Children (Complex Exception)

a. MAJORITY RULE: (aka. Massachusetts standard) Children are held to a standard of care that a reasonable child of the same age, intelligenc and experience would exercise.

b. MINORITY RULE:

i. Tender Years Doctrine:

b. Negligent Parental Supervision

c. Industry and Professional Custom

d. Medical Malpractice: Medical Mistakes

e. Medical Malpractice: Informed Consent

i. Reasonable Physician Standard

ii. Reasonable Patient Standard

iii. Exception:

1. Emergency situations

2. Therapeutic privilege

3. Infancy and capacity

f. Reasonableness, Balancing, and CBA

i. The HAND FORMULA = B < P(L) x L

ii. Disproportionate Cost Test –

g. Res Ipsa Loquitur

i. (1) the event ordinarily does not occur in the absence of negligence

ii. (2) it was caused by an agent or instrument in the sole control of the D

iii. (3) it must not have been due to any voluntary action by the P; P likely doesn’t even know what actions gave rise to her injury

h. Negligence Per Se

i. Elements:

1. (1) Defendant violated a statute, and statute was one which governed conduct

2. (2) Statute was designed to protect the class of persons that included plaintiff

3. (3) Injury was one the