Torts Outline

Torts
Christina Whitman
Fall 2006

Cheat Sheet:

Things to look for in Intentional Tort Claims:

Are the elements of the PF case met?
Is there a defense which can be brought up?

Things to look for in Negligence Claims:

What duty did the defendant have to the plaintiff?
Did the defendant breach this duty specifically?
Did the particular breach cause the injury?

If these elements don’t line up, there is no claim!
If they do match up:

Was the plaintiff contributorily negligent/assumed the risk?
Is there a defense (immunity/emergency doctrine)?
Is there an issue of vicarious liability?

Things to look for in NIED Claims:

Was the physical impact test met?
Was the zone-of-danger test met?
Was the Dillon test met?

Was there a subsequent physical manifestation of injury?

Is there proximate cause?

Things to look for in Products Liability Claims:

Was there a defect in the product?

Manufacturing?
Design?
Failure to warn?

Is there proximate cause?
Is there a defense?

Misuse
Plaintiff negligence
Assumption or risk

Things to look for in Ultrahazardous Activity Claims:

Is there a foreseeable, high degree of risk?
Is it an unavoidable danger?
If so, was the injury caused by the behavior which made the activity dangerous?

Things to look for in Negligence Per Se Claims:

Was there a statute which the defendant violated?
Was this statute written to prevent the conduct which occurred?
If D had not violated the statute, would the incident have occurred?

Outline

I. Intentional, Dignitary Torts (Intent, Act, Result): Battery
A. Prima Facie Case
1. A acts
2. intending to cause
a) harmful contact with P[i], [ii], or
b) contact with P that is offensive[iii]; and
3. A’s act causes such contact.
B. Act
1. Rarely at issue
2. Only problem if outside influence causes A to perform a “non-act” (i.e. B takes A’s hand and hits C with it.)
C. “Intending” to cause
1. Sometimes straightforward – Either a purpose to case the contact or substantial certainty that such contact will occur.
a) If you think it will happen or want it to happen, you’re liable.
2. Mostly inferences will have to be drawn to infer intent
3. Intending contact is usually the only necessary requirement, not actually intending for a particular harm to occur. You will be liable for all damage that is caused. (Eggshell Scull rule) [iv] 4. Knowledge that the touching will occur is sufficient but not necessary to make the prima facie case (if you think it probably won’t, but then does, you can still be liable).
5. Offensive: must be against prevailing standards of acceptable touchings, offends a reasonable sense of personal dignity.
6. If someone has a known phobia and you specifically target them, even if it wouldn’t be offensive to others, it can still be battery.
D. Causes contact
1. Must involve “touching”
2. Does not have to be direct
a) E.g. if you throw a dart at someone, that is “touching”.
b) E.g. particulate nature of cigarette smoke allowed to be “touching”.[v] 3. Can also be touching of something the plaintiff is in contact with.
a) Doctrine of extended personality
4. Plaintiff does not have to be aware of the touching at the time.
E. Even if the damages are small (in cases of offensive contact, mostly) winning a case shows that you have been wronged.
II. Intentional Dignitary Torts (Intent, Act, Result): Assault
A. Prima Facie Case – “Attempted Battery”
1. A acts
2. intending to cause in P the apprehension of[vi]:
a) an imminent harmful contact with P, or
b) an imminent contact with P that is offensive; and
3. A’s act causes P reasonably to apprehend this imminent contact.
B. Apprehension
1. Only apprehension, not fear
a) Damages depend on fear aspect however.
C. Ability to actually commit the act necessary to make the apprehension reasonable.
1. “Words alone” – Mere words do not suffice. Must be coupled with other acts or circumstances that lead to apprehension.
a) Previous behavior that makes P believe the words will actually come to bear can be taken into account.
2. Must be just and reasonable grounds for the fear (Brooker)
D. Conditional threats may negate the assault (if you weren’t old… vs. if you don’t sleep with me…)
E. Must be IMMINENT danger (I’m going to come back and… not assault) [vii],[viii] F. P must have apprehension that he himself will be hurt, not a third party.
III. Intentional Dignitary Torts (Intent, Act, Result): False Imprisonment
A. Prima Facie Case
1. A acts
2. intending to confine P
3. A’s act causes P to be confined; and
4. P is aware of the confinement
B. Test: (1)Willful detention, (2)without consent, (3)without authority of law – Randall’s Food Markets v. Johnson.
C. Threats of calling the police are not enough to constitute false imprisonment if there are no other factors to overcome free will(size, age, experience, sex, physical demeanor).[ix] D. Can use to sue for damages or release (in the instance when you are still being held prisoner – usually by the government).
E. Confined:
1. In a physical space
2. Can be nonstationary
3. Can be an exit but physical danger prevents you from getting to it
IV. Transferred intent in Dignitary Torts
1. Tortfeasor should be just as culpable when they had one intent.
B. Same victim, different tort
C. Across victims[x] D. Across torts and victims
E. From things to persons
V. Classic defenses to intentional torts – justification vs. excuse
A. Self-defense (justification)
1. Not for:
a) Nonthreatening provocations
b) If you are the initial aggressor
2. Only to stop impending battery or thwart one in progress.
3. May only use reasonable force (force victim reasonably believes is necessary)[xi] 4. No duty to retreat
a) Exception: Restatement – use of deadly force BUT not the majority rule
b) Exception to exception – no duty to retreat in your own home
5. May not escalate violence. Can only respond with similar or lesser level.
6. Ex. Initial aggressor (non deadly force) à victim (deadly force) à initial aggressor (deadly force). Can initial aggressor claim self defense? Most states say yes, if he could not have retreated.
B. Consent[xii] 1. Explicit (signed forms) vs. implicit (voluntary participation)
2. Cannot consent to an illegal activity, against public policy – from Restatement, but not the majority rule.
3. If words, gestures or conduct manifest consent, even if plaintiff did not actually consent, consent will suffice as a defense
4. Legislature bars some disadvantaged classes from consent (statutory rape).
5. Misinformed consent is negated (woman agrees to “medical procedure” which is in actuality for the doctor’s sexual gratification.
6. Medical cases – consent necessary before surgery, implied consent not valid.
a) Sometimes consent sought of family members
b) Difficult when unanticipated events occur and pt cannot easily be woken
c) If a reasonable person would consent to treatment, the physician can do the treatment (“Emergency rule”)
C. Defense of others
1. Same rules apply as in self defense
2. If you come upon the scene and take a mistake of facts re: initial aggressor –
a) Some say: You step in the shoes of the aggressor and are only allowed to use deadly force if they would be allowed.
b) Others say: May act on a reasonable belief that a battery is about to be committed.
D. Investigative detention and arrest
1. Enables officials and private citizens to advance the cause of law enforcement and the operation of the legal system.
2. Whether a shopkeeper had the privilege to detain someone suspected of robbery can be a jury decision.[xiii] Must have probably cause or reasonable grounds. May only detain for reasonable time in reasonable manner.
3. Police officers can detain someone under reasonable suspicion.
4. Police officers lose privilege if taken with excessive force.[xiv] E. Qualified immunity
1. Police officers and some public officials stand to benefit from the additional defense of qualified immunity when acting in the line of duty.
F. Mental Imbalance (excuse)
1. A truly insane person cannot act, as an act requires manifestation of internalized reasoned will. Maliciousness not required, however, and P can still be held liable.
G. Defense of property
1. A person may generally use reasonable force to defend their property (land and chattels)
a) Warning required force
2. If you assert your property rights in unacceptable means, you can be liable (clean hands doctrine) [xv] 3. Deadly force is only permitted in the case where you are fearful for your personal safety. [xvi] 4. You may only use force to retain something if it is momentarily out of your possession (i.e. if you lend your friend a football you cannot use force to get it back a week later – but if someone tries to steal your football you can use force during the attempted theft).
H. Necessity (property torts)
1. D can harm the property of a third person provided it is necessary to prevent great bodily harm to D or a third person.
2. Public necessity – in the great interest of the public, trespass is necessary and compensation need not be paid. [xvii] 3. Private necessity – if damage occurs, trespasser must pay actual damages, owner may not resist trespass.[xviii] I. Consent (property torts)
1. A trespass is not committed when the individual has consent to be on the land for the prescribed purpose (implied v. explicit)
2. An entrant may become a trespasser by moving beyond the possessor’s invitation or permission.[xix] VI. IIED
A. Tort of “outrage” – that’s outrageous! (to standard societal norms, unless D is aware that P has a particular phobia which would make his conduct outrageous)
B. Severe embarrassment, disappointment, or humiliation (may closely resemble an assault but was a threat of a future action).
C. Conduct must be
1. Outrageous
2. Undertaken for the purpose of causing the victim emotional distress so severe that it could be expected to affect adversely his physical health; and
3. That causes such distress (even if physical harm is not generated).
D. Intent can be:
1. D desires to cause emotional distress.
2. D knows with substantial certainty emotional distress will occur
3. D recklessly disregards high probability distress will occur.
E. IIED is intended to supplement, not supplant, other cases
1. Can collect parasitic damages, if defendant is found liable of one tort can hold them to emotional distress.[xx] F. A (death) threat for the future which is intended to cause serious mental distress is actionable.[xxi] G. Physical manifestations of emotional distress are not necessary to collect on a claim – but may not be able to collect punitive damages.[xxii] H. Outrageous behavior must be calculated to cause a specific person emotional distress (although courts differ on this point – some don’t require desire to cause emotional distress, only behavior which is directed toward a specific individual).[xxiii]

VII. Negligence
A. Tort of negligence is different than common meaning of “negligence”.
1. One incorporates 4 elements (duty, breach, cause in fact, proximate cause) while the other is just the breach.
B. Prima Facie Case
1. P has suffered an injury
2. A owed a duty to a class of persons including P to take care not to cause an injury of the kind suffered by P
3. A breached that duty of care
4. A’s breach was the actual and proximat