Torts Attack Outline With Policy Question Attack Outline (Received Grade A- using this on exam)
Professor Delisle, Fall 2013, Textbook: Epstein 10th Ed.
Intentional Battery
v Intentional – “What do I know?”
v Harmful/offensive (to ordinary person)
v Contact of a person P
v Defenses
Ø Consent
§ Explicit
· Cannot consent to illegal act (Illegal prizefight)
· Implied
· Emergency Rule (General reasonable person's std.)
· Substituted Consent (i.e. Parent/family member of unconscious person)
Ø Self-defense
§ Implicit proportionality doctrine
§ Likelihood of efficacy, actual danger, reasonable person std
Ø Insanity (generally does not work unless bat-shit crazy)
v Harm?
Ø Thin Skull Rule
Intentional Trespass
v Intentional – “What do I know?”
v Interference (ordinary person std.)
v With possessory interest of P
v Defenses
Ø Consent
§ Explicit
§ Implied
§ Emergency Rule (General reasonable person's std.)
§ Substituted Consent (i.e. Parent/family member of unconscious person)
Ø Defense of Property – Repel with “gentle hands”, not try to injure
Ø Necessity
§ Imminent threat? (still liable for damages if you intervene)
Intentional Assault – “Intentional battery that you see coming”
v Intent – “What do I know?”
v To cause a harmful/offensive contact, or imminent apprehension (but NOT just a fright)
Ø Words alone CAN be sufficient, if imminent apprehension
v P is actually put into such apprehension
v Self defense?
Negligence Action
v Duty
Ø Foreseeable Plaintiff?
§ “Radius of danger”
Ø Affirmative Duty
§ Duty to Rescue
· Created Peril
· After beginning, duty to continue
· Cannot prevent another from rescuing
§ Gratuitous Undertakings (like promissory estoppel)
· Duty to continue providing service or notify that service is no longer there
· But maybe only to people that were “privy” to that before
§ Owner-Occupier
· Classification System (older)
¨ Trespasser – Only liable for willful injury or reckless disregard
Ø Attractive nuisance? to Kids
¨ Licensee – Social Guest – No traps and no concealing danger
¨ Invitee (Customer) – Reasonable care that premises are safe
Ø Business invitee (store, etc..)
Ø Public invitee (Park open to public)
· Negligence standard
¨ Reasonableness – old classifications are taken into account
¨ B
Special Relationships
· To plaintiff
¨ Landlord/tenant (condos but not hotels)
· To Victim/3rd Party
¨ Therapist/patient
Ø Still only reasonable care
· Common carrier heightened duty of utmost care
v Breach (Negligence)
Ø Reasonable Person Standard (Objectively)
§ Under the circumstances
· No liability for extraordinary events
§ Irrespective of Age/infirmity
§ EXCEPTIONS:
· Legally Blind
· Children (UNLESS in an “adult” activity)
· Sudden Ins
)
· Excluding Minor Causes – “Substantial Factor” Test (Add tsp of water to dam and bursts, probably not liable)
· Unconventional Proof
¨ Put burden on D to exonerate themselves – Summers v. Tyce
¨ Market Share Liability
Ø Proximate Cause
§ Foreseeable [risk of the negligence]
· Same TYPE of harm as the negligence creates – physical injury from kick OK, electrocution from toilet overflowing NOT ok
· Danger invites rescue
§ Directness [in time and space]
· Had conditions “returned to normal”?
· Did anything intervene? (Palsgraf scales)
· Was it just one stream out of many to form a “river”?
v Affirmative Defenses
Ø Contributory Negligence – P barred if ordinary care would have prevented it
§ But intervening non-negligent factor does not relieve D from liability
§ Must show that P was negligent, AND that negligence caused the harm
· Must have caused the accident itself, not just made the harm worse
¨ Derheim v. N. Fiorito (Rejects the “Seat Belt Defense”)
· Not contrib. neg. if it is your legal right to do it
· Last Clear Chance – Person with last chance to avoid is solely liable
