Torts Outline

I. INTENTIONAL TORTS– purpose/desire to invade another’s legally protected interests

A. MEANING OF INTENT: shown either by “purpose or desire” or “substantial certainty”
1. Substantial Certainty– “if D knows to subst’l certainty that consequence will ensue from his conduct”
2. “Substantial certainty” is subjective, not rznble person. Can be deduced from circumstances.
3. Intent need not be malicious, nor intent to cause harm. Only intent to invade legally protected interest.

B. TRANSFERRED INTENT: p. 796
1. Transfers intent to commit one tort to the intent to commit another otherwise unintended tort
a. Example– I only want to scare you (assault) but I make harmful/offensive contact (battery)
2. Transfers intend to commit a tort on one person to the intent to committing a tort on someone else
a. Example– If I throw at rock at you but I hit someone else on accident

C. BATTERY: protects physical & dignitary interests. Requires actual contact.
1. Definition: affirmative voluntary act [intentional] that causes harmful/offensive contact with a non- consenting person.
2. Elements of battery
a. Intent– must exist in one of 3 forms:
i. purpose or desire to cause contact,
ii. substantial certainty contact would result
iii. transferred.
b. Causation– but for Ds affirmative voluntary act the contact would not have occurred
c. Harmful/offensive contact– i.e. what rznble person would find harmful/offensive.
i. Cohen v. Smith– NO SPECIAL SENSITIVITES.
d. To a person– directly to the body or something closely associated with it.
3. Harmful/Offensive– “disagreeable or nauseating or painful b/c of outrage… affronting insultfulness”
4. Victim need not be aware of contact at the time. People have right to personal autonomy.
5. Vicarious Battery– someone who’s present & incites/encourages battery is equally liable [Leichtman]

D. ASSAULT: also includes attempted battery; an attempted battery is an assault.
1. Restatement definition: D if liable for assault if…
a. he acts intending to cause harmful/offensive contact w/ person (attempted battery)
b. or an apprehension of such contact; and
c. the other person is thereby put in such imminent apprehension.
2. Elements-
a. Affirmative voluntary act — words alone not enough
b. Intent– same as battery: Purpose/desire, substantial certainty, or transferred.
c. Causation– but-for Ds act the apprehension would not have occurred
d. Reasonable apprehension of harmful/offensive contact.
i. Objective standard
ii. IMMINENCE– no temporal or distance obstacles. “No significant delay.”
iii. Must have ability to carry out threat
iv. P must be aware of threat (but not necessarily afraid)
v. No special sensitivities (Unless D knows about Ps sensitivity)
e. To a person — can’t threaten to damage property

E. IIED — only requires reckless conduct
1. Restatement definition– D liable if…
a. He intentionally or recklessly causes severe emotional distress by extreme & outrageous conduct; also liable for any physical harm that results.
b. D also liable for any emotional distress suffered by…
i. His victim’s family members, if they’re present.
ii. Anyone’s emotional distress, if D uses physical violence.

2. Elements of IIED
a. Outrageous conduct — objective standard
i. exceeds boundaries of decency/socially tolerable conduct
ii. words alone sufficient
iii. existence of special relationship (i.e. position of power)
iv. special vulnerability (i.e. rape victim)– D must be aware of vulnerability
1. rude/mildly abusive conduct may be sufficient if D knows of susceptibility
b. Intent– purpose/desire to cause distress or substant’ly certain distress will result from conduct
i. Recklessness– conscious disregard of high risk that emotional harm will result
c. Causation– but-for the affirmative voluntary conduct
d. Serious emotional harm
i. objective standard — “So severe that no rznble person should be expected to endure it”
ii. intensity & duration factors
iii. objective evidence not required
iv. conduct must be directed at P
1. Exceptions– family members present @ time and cases w/ extreme violence

II. DUTY

A. GENERAL DUTY OF REASONABLE CARE
1. Definition of the General Duty– everyone has a general duty to foreseeable plaintiffs to exercise reasonable care in regard to foreseeable risks of harm arising from your conduct.
2. Difference b/w Duty & Scope– obvious overlap b/c of foreseeable harm/ Ps
a. Duty– generally expanding. Duty asks whether this conduct should include legal obligation.
b. Scope–limiting device. Scope asks if harm is too remote/unexpected to require compensation
3. Policy-based
a. Prosser: duty is “An expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.”
b. Evolves & Adapts– courts create new duties & reevaluate old limited duty rules in response to changes in society, new technology, new information, changing relations & responsibilities.

4. The Rowland Factors– when to impose the General Duty:
a. Foreseeability of the harm
b. Degree of certainty that P actually suffered injury
c. Closeness of the connection b/w Ds conduct & Ps injury
d. Policy of preventing future harm
e. Moral blame attached to Ds conduct
f. Extent of burden on D & society of imposing duty
g. Availability & cost of insurance for the risk involved
5. Other Policies the Courts Consider:
a. Convenience of administration (judicial economy)
b. Capacity of the parties to bear the loss (allocation of risk)
c. Economic considerations (who is the least-cost avoider? at what social cost?)
d. Legislative Considerations (whether duty will interfere with existing statutes/regulations)

6. Pre- MacPherson– Privity of Contract– manufacturer’s liability for injuries sustained from negligent manufacture was limited to only the person who bought product & signed contract. No one else.
7. MacPherson: Birth of the General Duty
a. Abolished privity of contract– duty doesn’t originate from contract, it originates from law.
b. Created general duty for manufacturers:
i. Every manufacturer has duty to any person who will foreseeably use his product.
ii. If negligent manufacture makes injury foreseeable, D is liable for failure to exercise rznble care in production & inspection.

B. LIMITED DUTY TO ACT, ASSIST OR RESCUE
1. Misfeasance v. Nonfeasance
a. Misfeasance– when someone’s affirmative conduct creates risk of harm that causes accident.
i. But-for causation of the risk AND the injury.
b. Nonfeasance– when the risk is not created by that person’s affirmative conduct.
i. There is often but-for causation of the extent of injury but NOT the risk.
2. Exceptions
a. Special Relationship — dependence or expectation of aid
i. Parent/Child
ii. Teacher/Student
iii. Employer/Employee
iv. Companions in social ventu