TORTS I Attack and Final Outline – Professor Kathleen Butler
Fall 2013
SEVEN INTENTIONAL TORTS: I B F A T T C
1 (iiED) Intentional Infliction of Emotional Distress
2. (B) Battery
3 (FI) False Imprisonment
4. (A) Assault
5. (Tl) Trespass to Land
6. (Tc) Trespass to Chattel
7. (C) Conversion
Note: IT’s Tell us What Bhvr Satisfies the Tort (e.g. hit, on P’s land, confine, etc)
DEFENSES TO INTENTIONAL TORTS: DCN
DEFENSES
CONSENT
NECESSITY
PROPERTY
INEFFECTVE (MICEF)
PUBLIC
SELF
EXPRESS (Words/Outward Expression)
PRIVATE
OTHERS
IMPLIED (Conduct/Custom/Emergency)
SHOP KEEPER’S
NEGLIGENCE – Requires Plaintiff to show that Defendant owed a duty or standard of care (SOC) that was breached when Defendant did not act like a RPP/SSC and created an unreasonable risk which was the actual or proximate cause of Plaintiff’s injuries/damages.
First – Determine if this Misfeasance or Nonfeasance
Misfeasance – A duty for standard of care
Nonfeasance – No Duty for a standard of care (Unless 1 of the exceptions: Spec Relationships
DUTY – A Defendant has a legal duty to act as a reasonable, and prudent person and exercise reasonable care to Plaintiff under the same or similar circumstances.
· SOC
· Conduct
· Customs
· RPPSSC
· Professional Standards
· Child Standard
· Disabled Standard
· Statute 2 part test
· Special Relationship
· Land Owner or Occupier (Trespassers – Known v Unknown/ Attractive Nuisance/ Licensees/Invitees)
· Contract
· Assuming a duty by getting involved
BREACH A breach is a failure to act as a reasonable, prudent person under the same or similar
circumstances. A Defendant breaches a duty through an act or omission that exposes
others to an unreasonable risk of harm. This breach is found in either1 of 5 ways:
Risk-Utility
Risk-Burden
RIL
Statute
Jury Determination
Nonfeasance Misfeasance Malfeasance
CAUSATION
1) Cause in Fact: BUT FOR or Substantial Factor for Concurrent Events
Alternate Liability
Joint and Several Liability
Market Share Liability
2) Proximate Cause
Foreseeability v Direct Cause
Intervening
Superceding
Palsgraf: Foreseeable P, Harm and Manner (Majority View…Limit on running of negligence)
Andrews View – Minority View – Palsgraf is responsible for it all.
Cordozas View – Majority View – Limit on the running of the negligence.
DAMAGES
**If there was a duty and a breach = negligence BUT must establish C and D as well.***
DEFENSES:
Contributory Negligence/Last Clear Chance
Comparative negligence: Pure Comparative and the 2 different modified versions
Assumption of the Risk: Express and Implied
Negligent Intentional Emotional Distress (NIED)
cause you did not mean to shoot the dog does not negate the fact that you were intending to hunt wolf’s and does not matter the dog looked like a wolf. D meant to shoot and kill “that one” right there.
A person who chooses to act taking a risk is liable for their mistake. The “not what it seems risk” falls upon you.
HYPO: On a sound stage you pick up a gun you belief is a fake prop gun, with fake bullets. You point it at your friend, shoot it, but it was a real gun, and the bullet passes through your friend’s shoulder. You did not mean to shoot and if you knew it was a real gun you would not have. Who cares you made a mistake, you had intent to point & shoot gun.
Insane: Insanity does not always mean that D had intent. Insane people can have intent. Must have:
(a) Was the insane defendant capable of and in fact entertained the intent required? An insane reason is not the same as no intent to cause the result.
HYPO A: Insane person sees the nurse walk into her room, and believes she is a CIA spy out to kill her, so she picks up a broken furniture leg and hits the nurse. Did the crazy lady mean to hit the person? YES. She knew it was a person, just not a nurse there to take care of her. There was intent.
HYPO B: What is the insane person thought the nurse was a giant dragon coming to eat her, and she takes the furniture leg and hits the nurse. There was NO INTENT. She did not think it was a person, just some fierce animal. Delusion can negate intent.
