TORTS LOGUE FALL 2017
Overall
HARM
Duty not to intentionally cause harmful or offensive contact
NEGLIGENCE
Duty to take reasonable care in their actions to avoid causing physical harm to someone
DUTY TO RESCUE
If you cause the peril (negligently or not) you owe ordinary care to those who may be harmed by it
DUTY TO WARN
If you have a special relationship to the person that’s going to cause harm then you have a duty to warn foreseeable victims
If you have a special relationship to the person who you know is going to be harmed then you have a duty to warn them
IIED
Duty to not inflict emotional distress intentionally and foreseeably
Intentional Torts
Basics of Torts Law: it is a common law field that is established largely via cases
Core structure of tort law: depth over detail à important to look at the internal driving logic
Tort law guards against:
Physical Harm to person or property
Forcible dispossession of land
Taking or conversion of personal property
Assaults
Affronts to personal dignity and emotional tranquility
Battery: Harmful Conduct
A person is liable to another for battery if:
He does it with the intention to cause harmful or offensive contact and
Harmful contact with the person causes direct or indirect results
Intent: doesn’t have to be an intent to cause harm, just an intent to make contact
A person is acting w intent to produce a consequence if:
The person acts w purpose of producing the consequence
The person acts knowing that the consequence is likely to happen
Single intent: some jurisdictions think you only need to intend the contact for battery (piano teacher) (this is majority)
Dual intent: some think you need to intend the contact and the intent is to be harmful/offensive
Vosburg v. Putney
D kicked P & P subsequently became very ill
D didn’t intend to cause any harm, however, the kick was the cause of P’s injury & kick wasn’t accidental, it was committed in violation of normal rules of the school – no implied license
Rule: wrongdoer is liable for all injuries resulting from a wrongful act, regardless if he could not foresee the harm he would cause
Class Notes: You can have battery w/o assault – how can D be liable when he didn’t mean to seriously injure P?
It was still unlawful – he kicked him and intended to kick him
Occurred in the classroom where you don’t expect to be kicked, if classroom kicks were expected, not a tort & there was no consent or implied consent
Substantial certainty of subsequent harm = intent
Example of eggshell skull
Assault: Bascically an attempted battery. Putting someone in the fear of battery
an actor is subject to liability for assault if:
He acts intending to cause a harmful or offensive contact with another person or a third person, or an imminent apprehension of such a contract and the other is thereby put in such imminent apprehension
The fact that a plaintiff feels that he could prevent the assault or threat of assault doesn’t mean that it isn’t an actionable assault, even if someone steps in and prevents someone from committing an assault, it is still an actionable assault. P has suffered a compensable injury from a threat of attack that is easily warded off.
Can’t be assault if plaintiff didn’t apprehend the threat
Negligence
Duty
Breach
Causation
Harm
Brown v. Kendall
P & D’s dogs were fighting, D started to beat them with a stick and accidentally hit P in the eye
If, in the course of a lawful act, a pure accident arises, no action for damages can be supported
If P & D were using ordinary care, or if just D was, or if both were not, then P can’t recover
Ordinary care is the kind and degree of care which prudent and cautious men as is required by the circumstances and is necessary to guard against danger
An accident is something D could not have avoided by the use of ordinary care
HOLDING: If the defendant’s act is lawful, the plaintiff must establish that the defendant did not use ordinary care.
Class Notes:
For Brown v. Kendall, negligence is the rule, not strict liability
If the act is necessary: ** Burden of proof on plaintiff
P ordinary care & D ordinary care: P pays for damages
P ~ordinary care & D ordinary care: P pays for damages
D~ ordinary care & P ordinary care: D pays for damages
D~ ordinary care & P ~ordinary care: P pays for damages
If the act in unnecessary: **Burden of proof on defendant
P ordinary care & D extraordinary care: P pays
P~ ordinary care & D extraordinary care: P pays
P ordinary care & D ordinary care: D pays
P ~ordinary care & D ordinary care: P pays
P ordinary care & D~ ordinary care: D pays
P~ ordinary care & D~ ordinary care: P pays
Stone v. Bolton
Instant Facts: Stone, who lived next to a cricket ground, was struck on the head by a cricket ball that had been hit out of the grounds.
Black Letter Rule: The defendants had a duty to prevent the plaintiff’s injury because it was reasonably foreseeable.
*Strict Liability applied
Bolton v. Stone
Instant Facts: Stone, who lived next to a cricket ground, was struck on the head by a cricket ball that had been hit out of the grounds.
Black Letter Rule: If the risk of harm is so slight and the expense of reducing it so great that a reasonable person would not have taken any further precautions, a defendant’s conduct is not negligent.
*Negligence applied
Hammontree v. Jenner
Instant Facts: The defendant driver, an epileptic, had a seizure and crashed into the plaintiff’s bicycle shop, causing damage and personal injuries.
Black Letter Rule: Negligence principles govern the liability of a driver who causes harm because he was suddenly disabled due to a known illness.
HOLDINGS: if an accident isn’t foreseeable, you can’t be held liable. Another holding is we aren’t going to use strict liability in car accident cases.
Class Notes:
Risk: probability of occurring AND magnitude of harm
If extremely low risk: no liability
Intermediate risk: ordinary care (maybe more)
Substantial risk: no liability
Reasons for torts: 1) Incentives 2) Corrective Justice
The Reasonable Person
Vaughan v. Menlove
P owned 2 cottages & D was his neighbor who placed buildings and a hay stack on his own property but very near to the cottages
P was worried about the hay catching on fire – warned D, but D said he would “chance it”
Hay caught on fire and burned down the cottages
Rule of law is that you have to use your property so that you don’t harm someone else’s property – D is liable for the consequences of his own neglect – if the jury had to decide if D had made a decision to the best of his judgment, that would be a fuzzy/vague line & no rule would really exist – the prudence of a reasonable man is the applicable standard
Class Notes: Standard for negligence is the ordinary man standard.
Roberts v. Ring:
D hit P’s son with his car, D contends that he wasn’t negligent, but that the son was
D was driving and P ran in front of the car and was hit
D was driving 4-5 mph – his age & condition were appropriate to consider because it points to the fact that he shouldn’t have been driving – if someone’s act causes injury to others, his negligence is to be judged by the standard of care usually exercised by prudent men.
Holding: For determining negligence infirmities that are objective and measurable should be taken into account but not age. Age of son can be taken into account for contributory negligence.
Daniels v. Evans
P, 19, died when his motorcycle hit D’s car – question of if P should be held to a different standard of care because he is a minor
In this case, he was a minor engaged in an acti
n objective – sometimes the value/importance of collateral object needs to be considered
Probability that the collateral object will be attained by the conduct that involves risk to the principle; the utility of the risk
The probability that the collateral object would not have been attained without taking the risk – necessity of the risk
Osborne v. Montgomery
P’s bike got caught on D’s car door when he was trying to pass D & was flung to the ground.
Action did result in injury, but it’s not negligent because it was (opening the door) what most people would do in that circumstance.
Liability for wrongful acts – rests upon the idea that we are balancing social interests, not every action that results in injury makes someone liable for negligence.
Cooley v. Public Service Co
P was on the phone when some power & telephone lines fell down and caused a loud noise on the phone & she suffered from “traumatic neurosis” and a loss of sensation on her left side. P sued power company & telephone company
P wanted power company to implement one of 2 devices at cross-over areas to prevent the lines from falling onto telephone wires
It was determined that there was a chance of passerby’s being electrocuted
D was found to have exercised reasonable cause because it would have been unreasonable for D to put those on the street at a risk of electrocution in order to prevent the slight chance of neurosis due to a loud noise.
United States v. Carroll Towing Co.
Sinking of the Anna C – occurred when the bargee was not on board, question of whether or not he should have been on board
It was determined that it was the owner’s duty to provide against injuries
3 variables
(1) Probability that the boat will break away
(2) The gravity of the resulting injury
(3) The burden of adequate precautions
When the cost of accidents is less than the cost of prevention, a rational profit-maximizing enterprise will pay tort judgments to accident victims rather than incur the larger cost of avoiding liability
3rd Restatement: Negligence: a person acts negligently if the person doesn’t exercise reasonable case under all the circumstances. Primary factors to consider: foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm…and the burden of precautions
under negligence, the defendant who hovers close to the line could find that a small decrease in care results in exposing him to liability for all accidents instead of none – so that holds that negligence standard induces a higher level of care than strict liability because under strict liability, the defendant is responsible for all harms, so a small decrease in care generates only a small change in the frequency/severity of the harm
Class Notes courts use a cost/benefit analysis which is inherit in the logic of the rule
Underlying logic – if there is an easy/cheap precaution that would’ve protected against a really big risk, you should have taken that precaution if the precaution was hard or expensive and the risk guarded against is relatively small, you shouldn’t take the precaution, take the risk
Risk is an uncertain product – if the burden is less than the probable loss, you should do it (B
