Prof. Price
Torts-Fall 2010
INDEX
I. DEVELOPMENT OF LIABILITY BASED UPON FAULT
A. PURPOSES AND DEFINITION OF TORT
i. TORT
ii. 5 PURPOSES OF TORT LAW
B. EARLY DEVELOPMENT OF TORTS
i. FORMS OF ACTION
ii. LIABILITY- COMMON LAW/MODERN LAW
II. INTENTIONAL TORTS
A. INTENT
i. ELEMENTS
ii. MISTAKE
iii. INSANITY
iv. TRANSFERRED INTENT
B. BATTERY
i. ELEMENTS OF BATTERY-
ii. THE TWO TYPES OF BATTERY UNDER THE RESTATEMENTS
C. ASSAULT
i. ELEMENTS OF ASSAULT
ii. “IMMINENT
iii. “APPREHENSION
iv. DIFFERENCES BETWEEN CRIMINAL/CIVIL ASSAULT
D. FALSE IMPRISONMENT
i. ELEMENTS OF FALSE IMPRISONMENT
E. INTENTIONAL INFLICITON OF EMOTIONAL DISTRESS
i. ELEMENTS OF INTENT. INFL. OF EMOT. DISTRESS
F. TRESPASS TO LAND
i. ELEMENTS OF TRESPASS TO LAND
G. TRESPASS TO CHATTELS-
i. ELEMENTS OF TRESPASS TO CHATTELS
H. CONVERSION
III. PRIVILEGES (Defenses to Intentional Torts)
A. CONSENT
i. DOES THE CONSENT DEFENSE APPLY
B. SELF-DEFENSE
C. DEFENSE OF OTHERS
D. DEFENSE OF PROPERTY
E. RECOVERY OF PROPERTY
i. LIMITATIONS ON THE RECOVERY PRIVILEGE
ii. THE SHOPKEEPER’S PRIVILEGE
F. NECESSITY
i. PUBLIC NECESSITY
ii. PRIVATE NECESSITY
G. AUTHORITY OF LAW
i. ARREST
ii. CIVILIAN ARREST
H. DISCIPLINE
I. JUSTIFICATION
IV. NEGLIGENCE
A. WHAT IS NEGLIGENCE
i. ELEMENTS OF NEGLIGENCE
B. THE NEGLIGENCE FORMULA
i. THE HAND FORMULA
C. THE STANDARD OF CARE (DUTY)
1. THE REASONABLY PRUDENT PERSON
2. PROFESSIONAL STANDARDS
i. THE MEDICAL PROFESSIONAL
ii. INFORMED CONSENT
iii. ATTORNEYS
iv. STOREOWNERS-
E. RULES OF LAW
i. STANDARD OF CONDUCT BY REASONABLE PERSON
F. VIOLATION OF STATUTE
i. TEST FOR VIOLATION OF STATUTE CASES:
ii. APPLICABILITY OF STATUTE
iii. EFFECT OF STATUTE
G. PROOF OF NEGLIGENCE
i. CIRCUMSTANTIAL EVIDENCE
ii. CIRCUM. EVID. IN “SLIP AND FALL” CASES-
iii. BURDENS ON P. TO PROVE TORT LIABILITY FOR NEGLIGENCE
iv. DIRECT EVIDENCE
H.RES IPSA LOQUITOR
i. WHEN TO APPLY RES IPSA LOQUITOR
ii. 2 APPROACHES TO THE APPLICATION OF RES IPSA LOQUITOR
TWO TYPES OF CAUSATION (CHAPS. V & VI):
1. Cause in Fact: Focuses on what happened, the sequence of facts
Cause is not itself a fact, but an inference drawn from the evidence.
2. Proximate Cause: Focuses on policy judgments, how far should liability extend as public policy decision rather than cause in fact
V. CAUSE IN FACT
A. SINE QUA NON
i. “BUT FOR” CAUSATION
ii. SUBSTANTIAL FACTOR TEST
iii. Problems in Determining Which Party Caused the Harm
iv. TOXIC TORT CASES
v. Medical Uncertainty Cases
VI. PROXIMATE (LEGAL) CAUSE
A. PROXIMATE (LEGAL) CAUSE
i. Overview:
ii. Tests Used to Determine Proximate Cause
B. Intervening Causes
1. Overview
2. Cases that highlight the issue of Superseding intervening forces
3. The Rescue Doctrine
C. Public Policy
1. Overview:
2. Cases that highlight Public Policy Objectives in Proximate Cause:
VII. JOINT TORTFEASORS
A. Joint and Several Liability
1. Overview and Definition
2. Acting in concert
3. Independent Acts Causing a Single Indivisible Injury
B. Three Methods for Dealing with Joint Tortfeasors
1. Joint and Several Liability
2. Comparative Liability
3. Hybrid between joint and several and comparative liability
C. Settlement of Claims involving Joint Tortfeasors
1. The Plaintiff is entitled to only one satisfaction for their claim.
2. “Collateral Source Rule”
3. “Mary Carter” Agreements
4. Contribution
5. Indemnification
D. Appointment of Damages (in specific situations)
1. Multiple, unrelated incidents result in indivisible injury to Plaintiff
2. When a single, indivisible injury is created by multiple tortfeasors in a single incident
3. Calculating damages for wrongful loss of life
VII. Duty of Care
1. Overview
2. There is no duty to prohibit other adults from engaging in immoral conduct.
3. Duty to Rescue
4. Duty to Protect
5. Duty to Warn
6. Duty to Unborn Children
a. Wrongful Death
b. Wrongful Birth
c. Wrongful Life
IX. Wrongful Death and Survival
A. Wrongful Death
1. Definition
2. Calculating Damages
B. Survival Claim
1. Definition
X. Defenses to Negligence
A. Overview
B. Plaintiff’s Conduct
1. Contributory negligence
2. Comparative negligence
3. Assumption of the Risk
4. Statute of Limitations
5. Immunities
XI. Nuisance
A. Overview
B.Private Nuisance
C. Public Nuisance
XII. Vicarious Liability
A. Respondent Superior
B. Independent Contractors
XIII. Strict Liability
A. Overview
B. Animals
1. Livestock
2. Domestic Animals
3. Wild Animals
C. Abnormally Dangerous Activities
1. Restatement Section 519 – Liability
2. Restatement Section 520 – Cr
duct creating a high risk of unintended harm (NEGLIGENCE)
II. INTENTIONAL TORTS
A. INTENT
i. ELEMENTS- Intent can consist of one of two elements:
1) A desire for tortuous consequences to occur
OR
2) knowledge with substantial certainty that tortuous consequences will occur
“Would a reasonable person foresee the contact or harm?”
ii. MISTAKE- Mistake does not negate intent (Df. still liable) ßRanson v. Kittner-WHY? ¯
Fear of fraudulent claims of mistake.
Desire to see the harmed person recover.
Preferable for defendants to bear the risks of their own mistake than their victim
iii. INSANITY- An insane person can be liable for an intentional tort ßMcGuire v. Almy
1. WHY?
a. To make their caretakers more watchful
b. The courts favor the injured party over the injurer
c. Courts cannot afford time/cost of detailed investigations of how insane each df. is
d. The intentional tort is a physical act unrelated to their subjective mental state
Tort law differs from Criminal Law in this respect
2. Insane individuals are NOT liable for deceitful torts (slander, libel)
i.e. the torts that require mental action
NOTE: Voluntary intoxication is treated the same as insanity; for the same reasons
iv. TRANSFERRED INTENT- When the df. Acts with tortuous intent, he is liable for tortuous consequences that result, even if the intended person/property is unaffected
– A à DESIRE FOR HARM à B; A à ACTUALLY HARMS à C = LIABILITY to C –
1. Intent can be only transferred among the five torts that derive from the original writ of trespass: battery, assault, false imprisonment, trsps. to land and trsps. to chattels.
a. If the tort that was intended OR the one that was accomplished is not one of those, transferred intent does not apply.
B. BATTERY- Battery is concerned with the right of every person to be
