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University of Denver School of Law
Smith, Catherine E.



Fall 2014

Tort Law: Whether one whose actions harm another should be required to pay for the harm done.

I. Three Theories of Recovery:

A) Strict Liability: liability without fault

1) Product manufacturers

*Manuf’s have ability to foresee and spread the loss

*Strict v. Absolute Libaility? Q of law for judge. Then becomes Q of Fact for jury

B) Intentional Torts:1) Person acts with the purpose of producing the consequences or 2) Person acts knowing the consequence is substantially certain o result.

a) Assault

Ø Intent act, P reasonably fears (judged by RP in same pos.) immediate harm/contact.

Ø D lacked ability does not defeat liability.

Ø Harmful/offensive satisfied if contact threatened would inflict pain/impairment, or if RP would regard it as offensive.

b) Battery

Ø Intent infliction of harmful/offensive contact.

Ø D acts with desire to cause contact/knows result substantially certain to occur.

Ø Harmful/offensive contact element satisfied if the contact would inflict pain/impairment, or if a RP would regard it as offensive.

Ø Unlike assault, P need not be aware of the contact or see it coming.

c) IIED (Direct)

Ø Intent/Reck act amounting to extreme/outrageous conduct, causes P severed ED.

Ø D acts with intent or is reck in creating risk

Ø Conduct must be of kind society won’t tolerate

Ø P must prove distress was severe & substantial.

Ø Most states require P to show actual physical injury accompanied the distress

d) IIED (Indirect)

Ø Where D’s conduct directed at 3rd Party, D is subject to liability to a P if, if D intent or Reck causes severe ED.

Ø To immediate family/relative, where P present & D aware of P’s presence

Ø Recovery available whether or not distress > bodily harm

Ø To any other P present, if distress results in bodily harm & D aware of P’s presence.

e) Criminal conversations:

Ø Based on adultery.

Ø Historically, only available to husbands because of early property rights approach to husband/wife relationship. Some states have extended to wives.

Ø Most states have abolished altogether

f) Alienation of affections: Outsider drives a wedge

g) Sexual/Racial Harassment:

a) Federal Law/Background

1. CRA 1964—employment, voting rights, public accommodations, federally assisted programs.

2. Title VII-Prohibits discrimination in employment based on basis or race, color, religion, sex (gender)

*Age & sex orientation not in the list; in some states can still be discriminated against.

3. Title VII covers discrimination in hiring, promotion, conditions of employment, compensation

4. Conditions of employment—Sex harassment has two types:

a. Quid Pro Quo—Employment conditioned on sexual favors

b. Hostile work environment; so severe that it hurts work environment

b) Sexual Harassment (under Meritor)—P must prove:

1. He/she was subject to se

3 Burdens:

1. Pleading

2. Production

3. Persuasion

c) 3 Jurisdictions:

1. Permissive Inference

a. Permissive Inference (weak); a court may but need not find D negligent

b. Burden of prod and burden of persuasion still rests with P.

2. Court must find D negligent unless D presents plausible, rebutting evidence Burden of Production still rests with D.

3. Strong presumption (Must find D negligent unless it finds that D was not negligent, shifts burden of production and persuasion to D.)

d) Required public policy argument (ASK ABOUT THIS); Ybarra & need to hold Dr’s accountable? Would be discriminatory to deny RIL to someone, just because they are drugged up.

e) Med Mal(type of RIL): Where P receives unusual (in this case unrelated) injuries while unconscious and in the course of medical treatment, all those D’s who had any control over this body or the instrumentalities which might have caused the injuries may… be called upon to meet the inference of negligence by giving an explanation of their conduct.

1. Strict locale: same geographic community

2. Same or similar: community of similar size

3. National Standard:

*Public policy reasons for having different ones.