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Wayne State University Law School
Browne, Kingsley R.

Torts Outline

Tort: civil wrong committed by one person against another. (criminal is defined social harm which compensates V while tort punishes tortfeasor). When question of reasonableness, goes to jury. Three types of torts à intentional, negligent, strict liability

I. Intentional Torts, Physical Acts
A. Battery
1. Intent
2. Desire
3. Knowledge
4. Act
5. Produce consequences
B. Trespass to Property
C. Trespass to Chattels

II. Defenses
A. Consent—objective v. subjective
1. athletic acts
2. illegal acts
B. Insanity
C. Self-defense
D. Defense of Property
1. Recapture of Chattels
E. Necessity

III. Emotional and Dignitary Harms
A. Emotional and Dignitary harms
B. Offensive Battery
C. Assault
D. False Imprisonment
E. Intentional Infliction of Emotional Distress

IV. Strict Liability and Negligence: Analytical Foundations

V. Negligence
A. Reasonable Person
B. Calculus of Risk
C. Custom
1. Medical cases
2. Informed consent
D. Negligence per se
E. Jury Function
1. Standards for submitting cases to jury
a. res ipsa loquittor
1. medical cases

VI. Plaintiff’s Conduct
A. Contributory Negligence
1. Avoidable consequences
2. Last Chance doctrine.
B. Assumption of Risk
1. Meistrich distinction

VII. Comparative Negligence
A. In General
B. Doctrinal complications
C. Multiple Defendants
1. joint and several
2. insolvency
3. contribution
4. settlements
D. Vicarious liability
1. restatement test
2. beyond restatement
3. independent contractors

VIII. Causation
A. Cause in Fact
B. Proximate Cause, question of foreseeability

IX. Affirmative Duties
A. Duty to Rescue
B. Gratuitous Undertakings
C. Special Relationships

X. Products Liability
A. Restatement
B. Proper Defendants
C. Product Liability
D. Product Defects
1. Construction defects
2. deign defects
3. duty to warn
E. Plaintiff’s conduct
F. Federal preemption

XI. Damages
A. Wrongful death
B. Punitive damages
C. Workers’ compensation


A. Battery: act by the D which brings about (1) harmful or offensive contact to P, (2) intent [subjective] to bring about harmful or offensive contact to P* (or anything connected to P’s person) AND (3) causation.
* D doesn’t necessarily intend injury, intent to commit assault suffices for intent for battery (transferred intent). Controlling intent is the one that accomplishes act NOT accomplish result*

1. Vosburg: D’s intended to contact P and it’s offensive bc against classroom rules = battery
a. D takes P “as he finds him”. Liable for all injuries directly resulting from wrongful act, even if not foreseeable.
2. Intent as Desire v. as Knowledge
a. Garratt: D liable if pulled chair intending for P to hit ground OR knew it’s substantially certain to occur. Subjective standard (what D knew would happen), using objective evidence
3. P need not be aware of battery (D kisses P while she’s asleep still battery)
4. Transferred Intent. Applies TORT-wide
a. Elements: D intends to commit tort against person but instead (i) commits a diff’t tort against that person, (ii) commits the same tort as intended but against a difft person or (iii) commits a difft tort against a difft person Talmage
b. Generalized knowledge insufficient. Shaw: P sued tobacco company for lung cancer resulting from secondhand smoke from his driving partner. D knew it would cause harm to a person but not to specific person. Cant be transferred
c. only when tort intended and result is assault, battery, false imprisonment, trespass land/chattels
5. If no intent, could still be negligence

B. Trespass to land/property
1. Elements: intentful property invasion, regardless of harm/damagesDougherty.
a. mistake as to lawfulness is no defense
2. D need not enter land (can throw something)
3. intangible trespass exception, requires harm/damage. Hamidi: cyberspace is intangible, requires harm

C. Trespass to chattels
1. Elements: act that interferences with P’s right of possession, intent to perform such act, causation and actual damages required

2. Defenses to Intentional Torts: reasonable person under like circumstances

A. Consent
1. Express. Mohr: D’s action beyond scope of consent (left ear), unauthorized touching = battery (even though P was unconscious, kissing case).
2. Implied by law: Consent reasonable to infer in emergency situations. Objective-

rties: privileged if D reasonably believes 3rd entitled to self defense (even if turns out wrong). D reasonably believes 3rd person in peril
a. traditional. Privileged if 3rd party where privileged

4. Bystanders: If D accidentally injuries C, still has privilege (C could sue D for negligence) UNLESS D deliberately used C in protecting himself.

D. Defense of property
1. Request to desist required unless it would be futile (ie used force/arms to enter)
2. Reasonable, non-deadly force unless person is threatened. M’Ilovy (D shot P when P tied to tare down D’s fence). Spring gun and dog could be considered deadly force (GBH)
3. mechanical device: only privileged if D would be privileged to use such force in person
3. limited to preventing commission of tort
4. Mistake
a. allowed if: mistake about whether intrusion has occurred or whether a request to desist is required, mistake regarding whether force is necessary
b. NOT allowed if: entrant has privilege (ie officer or friend who forgot purse (recapture chattels)) to enter, unless intruder doesn’t inform D of such right
5. can’t use more force than necessary but can threaten more!!!!

E. Recapture of Chattels (Conversion)
1. Reasonable, non-deadly self-help (force) ONLY when person wrongfully obtained possession of the chattel, return has been demanded & refused. Hot pursuit. Forbidden in cases of voluntary transfer and credit-debtor situations/contested property rights. P must be entitled to immediate possession. CL.
2. Modern: no ability of self help and owner who uses force may be liable
3. No retaliation/excessive force
4. Not privileged in voluntary transfers/claim of right Kirby: D gave P $$ then requested it back, P denied in order to reimburse himself. D attacked P to reclaim money. Not entitled to defense