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Torts II
University of Dayton School of Law
Hagel, Thomas

Torts II
Spring 2011
        I.            Duty:
a.       Always relative to the circumstances:
                                                               i.      Contractual Duty (Fiduciary, Physician, etc.)
1.       To do or refrain from doing the particular thing in the contract and has an end.
2.       Purpose is to secure the receipt of the thing bargained for.   
                                                             ii.      Tortious Duty – only on occasion under certain circumstances, but continues throughout the time that duty is applicable (you stay a driver, or a parent).  Additionally, you are not liable until there is actually harm or an invasion on the interest the duty serves to protect (Graham can drive on the other side of the road all he wants, it’s not until he hits someone is he actually liable for a tort.)  Finally the actor’s conduct usually bears the question if the actor has or has not used reasonable care (matter for the jury). 
1.       Legal Duty (Parent-child, Employer-ee, in loco parentis.)
2.       Statutory Duty (operate vehicle in a safe manner)
b.      Notes:  A duty is one that the actor shall conduct himself or not conduct himself in a particular manner. 
                                                               i.      No obligation if the actor does not have the ability to perform, it must be within his control. 
                                                             ii.      A breach of duty does not make an actor liable it only subjects him to liability. 
c.       Tortious Conduct (act or omission)– encompasses three general types of conduct:
                                                               i.      Intentional Torts:  Intentional invasion of a legally protected interest,
                                                             ii.      Negligence: creating an unreasonable risk of invasion of such an interest, or
                                                            iii.      Assumption of the Risk: Conduct that is carried on at the risk that the actor shall be subject to the liability of the harm caused (Look for Open and Obvious Danger – No pool lighting and it was dark out). 
      II.            Subject to Liability:
a.       Act is:
                                                               i.      Legal Cause (CIF+PC), AND
                                                             ii.      There is no valid defense (consent, necessity, self defense, privilege).
    III.            Injury and Harm:
a.       Three types of harm determines ability to recover (significant):
                                                               i.      Injury – invasion of any legally protected interest. 
                                                             ii.      Harm – Existence of loss or detriment in fact of any kind to a person resulting from any cause. 
                                                            iii.      Physical Harm – impairment on the human body. 
b.      The type of harm determines the limits of recovery. 
    IV.            Intent:
a.       Either voluntarily conscious desire for intended result (tough to prove), or
b.      Circumstantial evidence proves that under the circumstances is substantially evident that it resulted from the actions (easier from an evidentiary standpoint).
      V.            Reasonably Believes
a.       An actor given a set of facts and that the circumstances which he knows or as a reasonable man should know, are such as to cause a reasonable man to believe.  (Boxer Jumps into the Ring). 
b.      The qualities which characterize a reasonable man is the standard to which the actor must conform to in order to protect his ignorance. 
    VI.            Reasons to Know; Should Know; (Always dependent on the circumstances)
a.       Reason to Know: a person of reasonable intelligence or of the same superior knowledge as the actor (doctor) would infer that the fact in question exists or how they would govern their conduct under those facts (common sense, or common sense among your profession). 
b.      Should Know: held to a person with reasonable prudence and intelligence or the similar superior knowledge would do in the set of facts (Affirmative Duty to know – slippery while wet!). 
  VII.            Legal Cause:
a.       Legal Cause – the actor’s conduct must be tortious and the legal cause of the harm.  A particular act or omission must be the substantial factor in bringing about the harm (look for superseding event), and there must be no principal or rule of law that restricts the actor’s liability because of the manner in which the act or omission invaded the property (public and private necessity). 
b.      CIF + PC = LC
c.       Always start with the CIF, then ask the question for (PC):
                                                               i.      Under the set of circumstances is it fair to hold the defendant liable?
VIII.            Defenses:
a.       Privilege:
                                                               i.      Fact or legal principle would be tortious under ordinary circumstances, but under these particular circumstances the defendant has a privilege and he can escape that liability. 
1.       Must be able to prove that the defendant had the privilege when the tortious action occurred. 
2.       A privilege is seen when a defendant has consent, necessity, or if the defendant acted reasonable to his exercise of freedom (complete accident). 
3.       Note: whether consensual or irrespective of the other’s consent, a privilege prevents an act or omission which would be tortious from so being and therefore no liability. 
b.      Consent
                                                               i.      Willingness-in-Fact (Conscious Consent) – express or implied regarding the circumstances (action or inaction). 
1.       Any evidence to suggest that there was an indication of consent is relevant (silence or inaction can work). 
                                                             ii.      Apparent Consent – the defendant reasonably understood that they had consent.  (Jump into a Boxing Match). 
1.       Conduct that a reasonable person would conclude that it indicates consent justifies the prevention of liability. 
2.       If a reasonable person would not conclude this way, then the actor is not justified, and thus subject to liability. 
3.       Customs: In indicating what could be understood by a reasonable person as consent, the court can take into account the relevant community customs. (Signs will tell you when you cannot hunt, if there is no sign that means you can hunt). 
                                                            iii.      Effect of Consent: 
1.       If there is a proved consent, then the consenting individual cannot recover in a tort action for harm.
2.       In order to be effective, consent must be:
a.       One must have the capacity to consent or have consent by their guardian (less than 18, or mentally incompetent), and
b.      Must be the conduct consented to or substantially the same.
3.       Conditional Consent – is only effective during the certain conditions or time that the consenting individual allowed. 
4.       If the actor exceeds the consent, then the consent is not effective for the excess.  (consent to punch, but I didn’t say kick, liable for the kick.)
5.       Upon the termination of consent, so is the effectiveness of the consent except as it may be irrevocable by contract or if the actor reasonably concludes the consent is continuing. 
                                                           iv.      Must have Capacity.  And also the conduct consented to, must be conduct that the plaintiff is engaging in when they are invading their interest (Fraud). 
                                                             v.      Note: Consent to Negligence – is just assumption of the risk.    
    IX.            Liability of Posses

                                                                                                                     iii.      Also the children need not be trespassing on the land because of the certain condition, but rather the possessor knows or has reason to know that the children are likely to trespass. 
                                                                                                                                   iv.      Does not fully extend to conditions in which even children should realize the risk.  (fire and water or falling from a height under ordinary circumstances may be understood by any child.)  Look for distracting influences that hide the likely risk.  If possessor knows that children are too young to appreciate the dangers, he will still be likely be subject to liability. 
                                                                                                                                     v.      Only liable if he failed to conform to a reasonable man in his circumstances under like circumstances.  (Cooney has two fences, certainly seems reasonable.)
f.        Exception:  All the possessor has the duty is to reasonably give an adequate warning – to prevent particular harm.
3.       Known (Dangerous Activities):
a.       Rule:  Possessor who knows or has reason to know the presence of another who is trespassing (currently) on the land is subject to liability for the physical harmed by a possessor’s failure to carry on his activities upon the land with reasonable care for the trespasser’s safety.
b.      The possessor can continue these activities so long as he does so in a careful manner as to keep the trespasser safe. 
                                                                                                                                       i.      Can continue to shoot bows and arrows, but just make sure the trespasser is behind you. 
c.        Dangerous:  No duty to exercise care unless he knows, or sound or sight makes the possessor substantially certain or highly probable. 
d.      Highly Dangerous:  Exercise Reasonable care when:
                                                                                                                                       i.      Knows or is reasonable certain at the point of danger,
                                                                                                                                     ii.      Hear or sight there is substantially certain the trespasser is in the danger zone. 
4.       Known (Artificial Conditions that are Highly Dangerous):
a.       Rule: failure to exercise reasonable care to warn them of the condition if:
                                                                                                                                       i.      The possessor knows or has reason to know of their presence in dangerous proximity of the condition, and
                                                                                                                                     ii.      The condition is of such a nature that he has reason to believe that the trespasser will not discover it or realize the risk involved.