Select Page

University of Pennsylvania School of Law
deLisle, Jacques

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
·         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