Direct Cause test or HWR foreseability Test?
· Tort- an actionable wrong
· Harmful or offensive contact
· With intent:
o Intent to cause injury not needed
o Actor desires to cause consequences of his act, or substantially certain that results will result from act
o Intent to bring about harmful or offensive contact (or intent to do an act believing that harmful and offensive consequences are substantially certain to result)
o Or intent to create an “apprehension” of imminent harmful or offensive contact
· Intent to
· Create an apprehension of
· A harmful or offensive contact
TRANSFER OF INTENT
· Assault to battery
· To a 3rd person if:
· Justified if proportionate to
o The protected interest
o The harm threatened with by aggressor
o Threat was immediate
DEFENSE OF OTHERS
· Allow if reasonable or if other person was justified (self-defense elements)
DEFENSE OF PROPERTY
· Deadly force not allowed unless facing attack inherently dangerous to life or well-grounded facts of assailant’s violent history
· No retreat from house (castle doctrine)
· Extreme or outrageous conduct
· Intent or recklessness as to the harm
· Severe emotional distress
o Tort of last resort
o Defenses: free speech, consent, self defense
o Expert testimony: minority yes, majority no
· In a bounded area (4 walls)
· Must be aware of confinement unless harmed
· Defenses: Self defense, defenseof others, lawful authority
· Liability with fault- lesser standard than intent
· Creating an unreasonable risk, failing to act when a dut
o Causation- But-for and proximate cause?
o Damages- Did the plaintiff suffer harm?
THE REASONABLE PERSON
· Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances
THE HAND FORMULA
o Financial Liability for negligence only if burden of preventing the injury does not exceed the magnitude of the accident, if it occurs, multiplied by the probability of the occurrence.
o B < P x L
o Unreasonable conduct is merely the failure to take precautions that would generate greater benefits in avoiding accidents than the precautions would cost.
o Factors that get considered in evaluating reasonableness: precaution cost, precaution benefits, accident likelihood & severity
o Instruction, circumstances
o When the party seeking protection from it was not negligent before the emergency;
o When the emergency is sudden and w/o warning;
o When reaction to the emergency was spontaneous, without time for reflection.
o No jurisdiction recognizes a special standard in emergencies, and there is a split, or dispute, as to whether juries should even hear something like an emergency instruction.
o Children: Age, Knowledge, Skill, Experience
o Adult activities
o A/B versus
o Why different standard? Note: is the “inherently dangerous” activity the same as the “adult activity”?
This appears to be a “refinement.”