Torts Final Outline

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<p>TORTS FINAL OUTLINE DOLIN FALL 2011</p> <p>Introduction A. Definition: A tort is defined as a civil wrong, other than a breach of conduct, for which society is willing to give a remedy. Harm is required. A person who breaches a tort duty (i.e., a duty to act in a manner that will not injure another person) has committed a tort and may be liable in a lawsuit brought by a person injured because of that tort. Tort law is a fault based system. B. Theories in Tort Law: 1. Traditional View - Corrective Justice: The system of thought that the purpose of tort law is to hold Ds liable for harms they wrongfully caused and to enable Ps to recover compensation for the wrongs committed against them. 2. Social Utility or Policy: The system of thought that the purpose of tort law is to encourage socially responsible behavior. The good of society as a whole is viewed as dominant to the justice of an individual. 3. Redistributive Justice Who is best suited to absorb the costs? C. Tort law is the only branch of law still governed by common law.</p> <p>Intentional Torts A. Definition: Intentional torts share the requirement that the defendant intentionally commit the elements that define the tort. The actor need not intend to commit a harm. 1. ACT + INTENT + CAUSATION 2. ACT a. Acts are external manifestations of an actors will. Uncontrolled movements do not qualify as acts. 1. Example: A is riding her bike. She is stung by a bee and loses control of her bike. It crashes into B. There is no intent for battery 2. Example: A has a seizure. During her convulsing, she kicks B, causing injury. There is no intent for battery.</p> <p>1</p> <p>3. INTENT a. Intent can be defined as either specific or general. 1. Specific Intent Actor intends to bring about the consequences which occur. 2. General Intent Actor knows with substantial certainty that the consequences are likely to occur from his actions. A. Garratt V. Dailey: Boy moved chair as woman was sitting down in it. He stated he did not know she was sitting down. Trial court found him innocent because he lacked intent. Holding: He may not have intended to hurt her, but he acted with substantial certainty that his actions might cause her to fall. Liability Imposed. b. Rule of Transferred Intent: Intent can be transferred. If person A has the intent to injure person B, and his actions result in an injury to person C, person A is liable for person Cs injuries. Intent can also transfer from one intentional tort to another. 1. Only applicable for torts of assault, battery, false imprisonment, trespasses to chattels, and trespass to land. 2. Example: A is injured by B while trying to break up a fight. Holding: A suffered a battery, based on the rule of transferred intent. 3. Example: A intends to scare B with a gun (assault). The gun accidentally fires, shooting B. A is liable for the battery of B. c. Extended Liability: People are liable for all wrongdoings that result in an intentional tort, no matter how extreme. 1. Egg-shell Skull Rule D is liable for all injuries resulting directly from their wrongful act whether they could or could not be foreseen by him. (Ex. Vosburg v. Putney D loses use of his leg due to pre-existing condition aggravated by light kick by P P is liable.) 2. Example: A pushes B in frustration. B stumbles on something as a result, falls, and breaks his neck. He becomes paralyzed. A is liable for Bs medical bills. d. Insanity and Infancy Typically, neither insanity nor age is a defense to intentional torts. However, if the actor is incapable of forming intent (either general or specific) due to incapacity or age, then it may be a defense.</p> <p>2</p> <p>e. Rule of Parental Liability: In most cases, parents do not have liability for the torts of their children (i.e., are not vicariously liable) unless a separate tort of negligence can be proven against them. 4. CAUSATION a. The harm resulting must have been caused by Ds act or from something set in motion by his act. B. Battery 1. Definition D intentionally causes an unwanted harmful or offensive contact with V. a. A and B always fist bump on the way out of class. A goes to fist bump B, but misses and punches him in the face instead? Battery? No, because it wasnt an unwanted touch. 2. Does not require intent, only requires that a touch occur. 3. Contact may be with something attached to ones person (ex. a purse, clothing, etc). 4. Contact may be direct or indirect (ex. D digs a hole intending to set a trap that V falls into). 5. Whether contact is considered harmful or offensive is judged by the standard of a reasonable person. 6. Actual damage need not occur. 7. V need not be aware of harmful or offensive contact at the time it happens (ex. a patient who has an unauthorized surgery performed on her while she is unconscious). C. Offensive Battery 1. Requires intent to cause the offensive touch. 2. Conduct which offends a reasonable sense of personal dignity or which is so outrageous that it shocks the conscience. a. Ex. Cohen v. Smith P was pregnant and having an emergency C-Section. P notified hospital that it was against her religious belief to be seen by any men. During procedure, she was seen and touched by a male nurse. She sued for battery.</p> <p>3</p> <p>D. Assault 1. Assault is either (1) an attempt to cause harmful contact or (2) to cause apprehension of such contact. 2. Apprehension must be reasonable. 3. Apprehension must be of immediate harmful or offensive contact (ex. NOT threats from a distance or of future harm). 4. V must be able to perceive the immediate harmful or offensive contact (ex. not asleep or unconscious at the time of the threat) 5. V must believe that D will carry out their threat 6. Apprehension is not the same as fear (ex. V may know that they can defend themselves). 7. Apprehension is not dependent upon Ds ability to carry through with harmful or offensive contact (ex. D points unloaded gun at V but V does not know the gun is unloaded) 8. Words alone are typically not enough to constitute assault, however words with an overt act are (give me your money or Ill kill you while pointing a gun at V) E. False Imprisonment 1. In false imprisonment, the defendant unlawfully acts to intentionally cause confinement or restraint of the victim within a bounded area. 2. Generally, it is not considered unlawful if the restraint or detention is reasonable to the surrounding circumstances (such as preventing one from inflicting injury to other persons or property) 3. The confinement may be accomplished by (1) physical barriers; (2) force or threat of immediate force against the victim, the victim's family or others in her immediate presence, or the victim's property; (3) omission where the defendant has a legal duty to act (ex. driving to texas, get to texas and decide to keep driving, dont stop to let V out when they ask you to); or (4) improper assertion of legal authority. Moral pressure and future threats are not sustainable forms of false imprisonment. 4. Accidental confinement is not included.</p> <p>4</p> <p>5. Bounded area can be small or large (ex. an entire city), but if there is a reasonable avenue for V to escape (of which they are aware) then the elements have not been satisfied. a. three walls do not a prison make b. The way out cant be dangerous, disgusting, hidden, or humiliating 6. V must be conscience of imprisonment. 7. Amount of time V is restrained is not relevant. 8. Special Rules for Shop Owners Restraining Suspected Shoplifters a. Most states grant stores a privilege to detain either by statute or case law. In order for the privilege to apply, the following conditions must be satisfied: 1. There must be a reasonable belief that theft has occurred 2. The detention must be conducted in a reasonable matter 3. The detention must be only for a reasonable matter of time F. Intentional Infliction of Emotional Distress 1. Intentional infliction of mental distress exists when D, by extreme and outrageous conduct, intentionally or recklessly causes V severe emotional distress. a. Must be directed towards on specific individual and must be done in front of at least one witness. 2. It is judged on an objective standard based on ALL of the facts and circumstances. 3. Extreme and outrageous conduct is behavior which is beyond all possible bounds of decency and is regarded as atrocious, and utterly intolerable in a civilized community. 4. Examples include extreme business practices (such as collections) and misuse of authority. Obscene and abusive language typically does not constitute outrageous conduct, but it may if it is directed toward a V who is more sensitive to such language (ex. pregnant women, the elderly, children, etc) 5. Third-party victim recovery is available only if, in addition to proving the elements of the tort, V is (1) a close relative of the primary V; (2) present at the scene of the outrageous conduct against the primary victim; and (3) D knows the close relative is present.</p> <p>5</p> <p>G. Trespass to Land 1. Trespass to land is the intentional invasion onto Vs land, remaining on Vs land, or failing to remove something from Vs land which you are under a duty to remove 2. Intent to trespass is not required, only an intent to be where you are (ex. a hiker who unknowingly wonders onto private property is still trespassing) 3. Accidental trespass is not unlawful 4. Does not require harm as an element of the tort. 5. Land includes those areas above and below the ground surface (ex. low flying aircraft and tunneling). Land also includes those items on it (trees, flowers, pipes, etc) 6. Trespass to land does not require Ds physical entry upon it. Trespass could be cause by ones pond flooding onto Vs land, throwing something on to Vs land, or chasing a third party onto Vs land. 7. Trespass also applies to objects, thus sounds and odors could be considered a trespass. H. Trespass to Chattels 1. D acts with the intention of interfering with the property of another OR with knowledge that such interference is substantially certain to result. 2. P must suffer harm from such interference.</p> <p>Defenses to Intentional Torts A. Insanity 1. Insanity is not a defense to intentional torts. 2. POLICY ISSUE: In a case of two innocents, it is only fair that the guiltier of the two parties pay. 3. POLICY ISSUE: Where an insane person has paid another to encounter a particular danger associated with their mental illness, the insane person should not have to pay again if they cause damage to the person they have paid to care for them. This is not an assumption of risk issue for the caretaker but rather a policy issue in general.</p> <p>6</p> <p>B. Consent 1. Expressed or Implied Consent negates tortious behavior. a. Expressed consent is typically given in words. b. Implied consent occurs when, under the circumstances, Vs actions reasonably convey consent. 2. Consent can also be implied by law (ex. EMS officials are assumed to have consent to perform medical procedures in emergency situations on unconscious Vs). 3. Consent achieved by fraud or duress is an invalid defense. 4. General waivers are not acceptable, consent must be for a specified act 5. Consent is invalidated if Ds acts go beyond the scope of Vs consent (ex. extending medical procedures unless the extension of the procedure is warranted by a life threatening condition and consent cannot be acquired). C. Necessity 1. A person may interfere with the property of another in so far as the interference is reasonable and necessary to prevent a threatened injury from natural or other forces and where the threatened injury in substantially more serious than the trespass undertaken to avert it. a. Public Necessity D acts for the public good (ex. shooting a rabid dog). Public necessity is a complete defense. b. Private Necessity D acts to protect a private interest (ex. tying up a boat to a Ps dock during a storm w/o Ps permission). Private necessity is an incomplete defense: D is privileged to interfere with another's property, but is liable for the damage. 1. POLICY ISSUE: Law of Economics by choosing to protect his private interests, D is electing to pay resulting damage to P rather than to assume a greater damage upon his own property. D. Self-Defense 1. Reasonable force can be used where one reasonably believes that such force is necessary to protect oneself from immediate harm. 2. Self-defense must be in response to an immediate threat of harm. 3. Amount of force exerted should be the amount reasonably necessary to prevent harm to oneself.7</p> <p>4. Retreat is typically not required before use of self-defense, but majority find that retreat should be attempted, when it can be done safely, before using deadly force. 5. Applies to third parties (ex. In attempting to protect oneself, D accidentally hurts a bystander. D may assert self-defense claim against bystander for any injuries.) 6. May also claim defense of others if there is a reasonable belief that the person being aided would have had the right to use self-defense. E. Defense of Property 1. May use reasonable force to prevent a tort against ones real or personal property. 2. Use of deadly force to protect ones home is only acceptable when the occupants safety is in immediate danger. Negligence A. Definition: To recover for negligence, P must establish each of the following elements by a preponderance of the evidence (that is, by more than 50%): duty, standard of care, breach of duty, cause-in-fact, proximate cause and damages. 1. POLICY ISSUE: The fundamental policy of negligence law is to encourage individuals to change their behavior to conform with that which is expected by society.</p> <p>DUTY A. Standard Duty of Care 1. Everyone has a legal duty to act as a reasonably prudent person in the same or similar circumstances and to take precautions against creating an unreasonable risk of injury to other persons 2. POLICY ISSUE: while people can engage in whatever legal activities they choose to, once those activities cause harm to others, they have a duty to stop partaking in those activities 3. Duty of care is owed only to foreseeable victims</p> <p>4. Unforeseeable victims D breaches a duty of care to one P which also causes damage to an unforeseen victim8</p> <p>a. Example: Example: An employee of D negligently aided a passenger boarding a train, causing the passenger to drop a package. The package exploded, causing a scale a substantial distance away to fall upon a second passenger. Is the second passenger a foreseeable plaintiff? 1. First view in Palsgraf, P2 may establish the existence of a duty extending from the D to her by showing that D has breached a duty he owed P1. In short, D owes a duty of care to anyone who suffers injuries as a proximate result of his breach of duty to someone. 2. Second view in Palsgraf (majority view), P2 can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her in the circumstances, i.e., that she was located in a foreseeable zone of danger. A. Some a...</p>