Johnson- Torts-Spring- 2012
FEDERAL TORT CLAIMS ACT
Procedure
– Specific damages must be claimed
Substance
– If, under state law, private actor would have a duty in neg, then the US has such a duty for negligence purposes
– The tort must have been committed by fed emp acting w/in scope of his/her employment
Exemptions, based on nature of the conduct (can’t sue for following)
– Discretionary function or duty
– Combatant actions of the military
– Claims arising in a foreign country
Exemptions, based on the cause of action (can’t sue for following)
– Assault, battery – Misrepresentation, deceit
– False imprisonment, false arrest – Interference w/ contract rights
– Malicious prosecution, abuse of process – Can’t use strict liability, must prove negligence
INTENTIONAL TORTS (see wypadki)
BATTERY
– Harmful offensive touching
– To P’s person
– Intent
– causation
ASSAULT
– act
– intent
– causation
– apprehension
– immediacy – threats of assault insufficient
FALSE IMPRISONMENT
– Intent – must desire to confine person (accidental confinement is under negligence)
– Confinement
a. Physical barrier, force, threats of force, omission – failure to act, invalid assertion of legal authority, duration of confinement is irrelevant, cannot be moral pressure or future threats
– bounded area
b. any reasonable means of escape negates bounded area –
i. if escape is unreasonable (embarrassment or discomfort) à bounded area
ii. reasonable means available but unknown à bounded area
– awareness of harm
c. person must be consciously aware of confinement
d. if not consciously aware of confinement BUT harmed = satisfied
OUTRAGE (IIED)
– act – extreme and outrageous (truly outrageous)
– intent or recklessness
– causation
– damages
Issues –
– eggshell plaintiff – does not apply to all unusually sensitive P to recover for act that would not cause emotional distress to a reasonable person
– if D knows of sensitivity – cause of action allowed
TRESPASS TO LAND
– intent, causation, physical invasion
TRESPASS TO CHATTELS
– intent, act – interferes w/ P’s right of possession, causation, damages – actual required
CONVERSION
– intent – knowledge/foresight to know actions will cause disuse of chattel
– interference must deprive possessor of chattel infinitely
o total displacement of chattel
o cannot be restored to initial condition or used in state it is in
o to implicate you cannot receive chattel back
o monetary damages = remedy (NO specific performance)
– personal property is anything tangible to a person
Distinguishing b/w Trespass to Chattels and Conversion
(1) extent and duration of dominion or control
(2) actor’s intent to assert right in fact inconsistent w/ other’s right of control
(3) actor’s good faith
(4) extent and duration of resulting interference w/ the other’s right to control
(5) harm done to chattel
(6) inconvenience and expense caused to other
DEFENSES
Contributory Negligence (minority) – P contributes to negligence – P cannot recover
Comparative Negligence (majority) – compare negligence of P to D (less, more or
rtion goes to state
OTHER REMEDIES (see wypadki)
Restitutionary Remedies – rather than focusing on P’s suffering, here focusing on D’s wrongful/unjust gain
ACCIDENTS (outside of ex-post negligence)
STRICT LIABILITY FOR ANIMALS
Livestock – imposes strict liability for possessor of trespassing livestock UNLESS (1) harm is not foreseeable; (2) trespass by animals being herded along highway is confined to abutting land; or (3) state common law/statute requires complaining landowner to have erected a fence
Domestic animals – only where possessor knew of animals dangerous disposition
Wild Animals – majority of jurisdictions apply strict liability to any owner of a wild animal (Minority – only if statutory law says specific animal is under strict liability)
STRICT LAIBILTIY FOR ULTRAHAZARDOUS ACTIVITES
P must show
(1) risk of abnormally great harm should D’s safety efforts fail;
(2) virtual impossibility of D’s elimination of risk of harm even w/ utmost care;
(3) resultant harm to P or P’s property CAUSED BY very hazards the risk of which led to describing D’s conduct as “abnormally dangerous”
Restatement – determination of abnormally dangerous
(1) Degree of risk of harm to persons or property;
(2) magnitude of harm;
(3) inevitability of risk irrespective of precautionary measures which may be taken;
(4) ordinary nature of activity in community in which it is found; and
(5) activity’s value to community in comparison of risk of harm created
