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Torts
University of Denver School of Law
Ehrenreich, Nancy

       I.            Intro to Tort Law
o   Two approaches to analyzing Tort Law
§ Corrective Justice- use tort law about fairly resolving disputes b/tw parties; fairness argument; tries to do what is fair for both partiesà compensation/punishment
§ Utilitarian- minimizing harm on society, focuses more on effect on law on collective society, how will law and rules affect society as a whole à deterrence
Purposes of Liability
Deterrence
Compensation
Punishment
Private remedies esp. when not crim. or crim. doesn’t provide adequate remedy.
Elements of Torts
§ Primafacie case-The elements of the case, what the plaintiff has to prove in order to gain recovery for tort, has to prove beyond a preponderance of evidence, more than 50%
§ Affirmative defenses- some independent reason the defendant should not be held liable
§ Derivative defenses- defenses that derive from the elements of the tort, a challenge of the plaintiff’s view of the facts
§ Affirmative defenses- Self defense/others/property, affirming the facts given, but giving a reason for actions
o Types of Arguments
§ Doctrinal- how the rule of law fits with the case
§ Policy- how policy will make precedent, conflict b/tw two rules, gaps in rules or if rule doesn’t exist
 
    II.            Intentional Torts
o   Battery- protects a person’s bodily integrity, the right to be free from intentionally inflected contact that is harmful or offensive
o   Elements of Battery:
§ Intent- no intent to cause harm/result; intent to cause contact or apprehension/awareness of contact
·         Purpose or Desire to make Contact
·         KSC- knowledge w/ substantial certainty that action with make contact
§ Contact
·          harmful or offensive
·          indirect or direct
 
o   Don’t have to intend a harmful or offensive contact, just to make contact or apprehension of contact
o   Don’t have to intend the precise injury or result
o   Causation rule à responsible for all direct consequences from behavior
o   Voluntary Action
§ External manifestation of will
§ Have control over one’s body
o   Objective Test- reasonable person standard, would reasonable person find this contact offensive. Contact element
o   Subjective Test- what was the defendant thinking, what was their intent. Intent element.
o   Cases
§ Waters v. Blackshearà firecracker
§ Polmatier v. Russàson in law hits w/ beer bottle and shoots father in law
§  Nelson v. Carrollà nightclub accidental gunshot
§ Leichtman v. WLW Jacor Communicationsà smoke in the face
§ Andrews v. Peters àco-worker knee bump
§ White v. Munizà elderly women hits caretaker
o   Transferred Intent
o   B/tw people
§ As long as the defendant had intent to make contact with the primary group, the consequences of his intent count as battery
§ Hall v. McBrydeà boy shoots at car w/ gang but hits innocent neighbor
o   B/tw torts
§ Transfer of assault à battery or battery à assault
o   Defenses to Intentional Torts
o   Consent- must be knowing, informed and voluntary
§ Expressed- waivers, contracts
§ Implied- from the statements of behavior of the plaintiff
§ Duration of consent- until plaintiff withdrawals consent
·         What a reasonable person considers being an adequate length of consent.
§ Withdrawal- it would have to withdrawal consent in a way that a reasonable person would consider it to be a withdrawal of consent.
§ Scope of the consent- what are you consenting to?
·         Consent to the “rules of the game”
·         Whatever a reasonable person would think you are consenting to. 
·         Consenting to the contact, do not have to consent to the physical harm that resulted from the contact.
§ Apply Reasonable Person’s standard test
·         McQuiggan v. Boy Scouts of America àboy scout plays with paper clips
·         Hogan v. Tavzel à husband gives wife STD
§ Mistakes- consent is vitiated when…
·         Defendant knew of plaintiff’s mistake and allowed consent to be made
·         Fraudulently induced
o   Defense of self
§ Objective Test/Reasonable Person’s Test
·         Danger
·         Imminent Danger
·         Proportionality
§ Subjective Test (what the actual person feared/did)
·         Danger
·         Imminent Danger
·         Proportionality
§ Slayton v. McDonaldà two 14 yr. olds fight, defendant shoots plaintiff in defense
o   Defense of others
§ Objective Test/Reasonable Person’s Test
·         Danger
·         Imminent Danger
·         Proportionality
§ Subjective Test (what the actual person feared/did)
·         Danger
·         Imminent Danger
·         Proportionality
§ “In their shoes” test- defense only works if the person you are defending could have brought a self defense argument. 
§ Young v. Warrenà father shoots daughter’s abusive boyfriend
 
 
o   Intentional Infliction of Emotional Distress (IIED)- protects a person’s right to be free from serious emotional distress
o   Intent Element
§ P/D to cause ED
§ KSC that would cause ED
§ Recklessly disregard a substantial risk of causing ED
o   Outrageous element
Apply objective test- would reasonable person find this outrageous.
“outrageous conduct must be so extreme in degree as to go beyond all possible bounds of decency to be regarded as atrocious and utterly intolerable in a civilized community”
Not outrageous “mere insults, indignities, threats, annoyances, petty oppressions, other trivialities
Frequency of conduct 1 incident not enough unless really bad.
Particular susceptibility that defendant knows about
Position of authority or power and has affect over other person’s interests (actual or apparent)
Severe Emotional Distress
ED must actually result b/c of conduct
Apply Objective and Subjective test to determine is ED occurred
§ Miller v. Willbanksàhospital accuses mother of taking drugs
§ Dana v. Oak Park Marina, Inc. à videotaped women changing.
§ Zalnis v. Thoroughbred Datsun Car Co. à car salesman yells at customer
 III.            Negligence
A.    Introduction
·         Four Elements of Negligence:
o   Duty- duty to act w/ reasonable care.
o   Breach- whether you failed to act w/ reasonable care
o   Causation- by breaching his duty the ∆ caused
o   Harm/Damages- harm to the ∏
·         Utilitarian- deter careless behavior
·         Corrective Justice- fair to make defendant pay, b/c the defendant didn’t act reasonably
·         Objective test- reasonable person standard
·         Subjective test- too variable, did the ∆ act as responsibly as that person could be
 
B.     The RPS
1.      Traditional RPS
·         Traditional definition- care that a reasonable person would use, common sense of how people should behave, jury decides this standard
o   Reasonable person would have averted to the risk (aware of the risk)
o   Reasonable perso

hould have known
·         Some statutes only allow for recovery from recklessness not negligence
·         Punitive damages may be available
·         Definition:
·         Person knows of the risk of harm created by conduct or knows of facts that make risk obvious to RP; and subjective standard
·         Disregard that risk (cost of avoiding the risk is low)
·         Restatement
o   Person knows of risk of harm
o   Knows of facts that would make it obvious to anyone in that person’s situation that a risk existed
o   Burden to ∆ to take precaution is so slight
o   Sometime punitive damages available for recklessness not negligence
o   Sometimes statutes don’t allow ∏ to sue for negligence have to sue for recklessness instead
 
D.    Proving Breach
1.      Violation of a Statute (negligence per se)
·         Proof of violation of a statute may support a finding that either a ∆ breached duty- majority view is that violation of statute is a conclusive evidence of breach
·         Negligence per se
o   ∆ Violated statute
o   Harm statute designed to prevent
o   Plaintiff was w/in class designed to be protected by statute.
o   Has to be a safety statute
o   Has to be a specific standard of care
·         Licensing Statutes
o   Administrative in nature
o   Doesn’t establish specific standard of care
·         Excuses: possible to be negligent per se but not be liable
o   Used reasonable due diligence to comply w/ statute
o   Prove you had a valid reason to violate the statute
o   Emergency situation
o   Impossible to comply
o   If there is a safer option that requires violation
o   It’s a really old statute that no one follows but is still on the books
 
2. Industry Custom
·         Violation of industry custom can be used to prove breach
·         Defendant’s assert that they acted in accordance w/ custom, but just b/c it is common behavior w/in an industry does not mean it is a reasonable behavior
·         Complying w/ custom can be admitted as evidence of reasonable care but not conclusive
·         Utilitarian reasoning, gives courts ability to push and influence industry to behave in appropriate manner
·         Relationship b/tw tort law and market is that tort law can be like gov’t regulation by trying to make people act a certain way
TJ Hooper
Elledge v. Richland/Lexington School
·         Industry Custom for Professionals
o   Compliance/violation of industry customs for a professional is different
§Compliance may be a directed verdict for the defendant (professional)
§More courts are moving towards just using compliance as evidence of non-breach
o   Violation of a custom is used as evidence of breach
o   Professionals set their own standard of care