Torts I Notes 8/27/13 10:57 AM

Torts are the laws of accidents. This body of law promotes safety, deters

risky behavior and compensates victims of accidents. In order to have a tort,

there must be (The holy trinity!):

Fault

Someone to pay

Damages

Intent:

In order that an act may be done with the intention of bringing about a

harmful or offensive contact or an apprehension thereof to a particular

person, either the other or a third person, the act must be done for the

purpose of causing the contact or apprehension or with knowledge on the

part of the actor that such contact or apprehension is substantially certain to

be produced (§13 Restatement).

Garratt v. Dailey (1955): defendant claims that young boy

intentionally pulled a chair from under her, causing her injuries.

o While a minor who has committed a tort with force is

liable as any other would be, a plaintiff must establish

that the defendant committed his or her act for the

purpose of causing the harmful contact or with

substantial certainty that such contact will result.

Spivey v. Battaglia (1972): Plaintiff was paralyzed after defendant

intentionally hugged her against her will.

o A party who acts with knowledge and substantial

certainty that a particular result will follow is liable for

all results flowing from his act regardless of how

unforeseeable or unreasonable.

Ranson v. Kitner (1889): Defendants mistook the plaintiff’s dog for a

wolf and shot it dead.

o Parties are liable for damages caused by their own

mistaken understanding of the facts, regardless of

whether they have acted in good faith.

McGuire v. Almy (1937): mentally insane patient injured Plaintiff.

o An insane person is liable for his intentional torts.

Talmage v. Smith (1894): Defendant threw a stick to get some boys

off of his shed and injured one of them.

o Transferred intent: If an actor has the intent to commit

any of the transferred intent torts (assault, battery,

false imprisonment, trespass to land, and trespass to

chattels), the actor will be liable for all other

transferred intent torts that result from that act. The

actor’s liability extends to all parties harmed, not

merely the original intended victim.

***Suing for intentional torts is a much more direct line to damages***

Battery:

knowing or intentional touching of one person by another in a rude, insolent

or angry manner. Plaintiff does not have to be aware of the battery

Harmful Contact

o A) acting with the intention to cause a harmful or offensive

contact with the person of another, or an imminent

apprehension of such a contract, and

o B) a harmful contact with the person of another directly or

indirectly results

Offensive Contact

o A) acting with the intention to cause a harmful or offensive

contact with the person of another, or an imminent

apprehension of such a contract, and

o B) an offensive contact with the person of another directly or

indirectly results.

Cole v. Turner (1704): No facts given!

o The lightest angry touch constitutes battery. A gentle

touch made in close quarters with no ill intention is not

a battery. A forceful or reckless touch, in close

quarters is a battery.

Wallace v. Rosen (2002): Teacher touched a parent during a fire drill

after instructing her to exit the building.

o Consent to ordinary personal contact is assumed for all

contacts that are customary and reasonably necessary

to the common intercourse of life, and in such

circumstances, no intent to unlawfully invade

another’s interest will be found.

Fisher v. Carrousel Motor Hotel, Inc. (1967): Black customer was

told that he wouldn’t be served in front of all his colleagues.

o A Plaintiff may recover for battery even when not

physically touched so long as the Defendant committed

an unwanted, intentional invasion of the inviolability of

the Plaintiff’s person.

Assault:

an intentional offer to touch the person of another in a rude or angry manner

under such circumstances as to create a well-founded fear of an imminent

battery.

Western Union Telegraph Co. v. Hill (1933): Repairman solicited

sexual favors from a female customer in exchange for him fixing her

broken clock.

o For assault to occur, there must be an intentional and

unlawful offer or attempt to touch another’s person in

a harmful or offensive manner such that it creates a

well-founded apprehension of imminent battery. One

accused of assault must also appear to have the

present ability to commit the battery if not prevented.

False Imprisonment:

the direct, physical restraint of a person where there is no legal justification

for the imprisonment and there is no other reasonable means of escape.

Big Town Nursing Home, Inc. v. Newman (1970): Plaintiff attempted

to leave a nursing home and was held there against his will.

o False imprisonment is one person’s direct restraint of

another’s physical liberty in the absence of sufficient

legal justification.

o Remittitur: A judge’s order to reduce the damages awarded

by a jury in civil cases as a result of a lack of evidence during

trial.

Parvi v. City of Kingston (1977): Plaintiff was arrested for being

intoxicated. He was driven outside of city limits and released where

a moving car injured him.

o Consciousness of confinement is a necessary element

of false imprisonment, but recollection of that

consciousness is not. It is thus possible to maintain a

cause of action for false imprisonment despite lacking

any recollection of confinement.

Hardy v. LaBelle’s Distributing Co. (1983): Plaintiff was accused of

stealing a watch from her place of employment. She was detained

and questioned, but released later.

o While actions or words may give rise to a claim of false

imprisonment, the actions or words must rise to the

level of unlawful restraint against one’s will to be

actionable.

Enright v. Groves (1977): Plaintiff was given a citation for her dog

being off a leash, but was detained for not providing the police with

her license.

o Conviction of the crime for which one is arrested bars a

subsequent claim for false imprisonment, but being

arrested for something that is not illegal does.

Whittaker v. Sandford (1912): Plaintiffs were members of a cult and

when they decided to quit the group, they were denied a means of

escape.

o Physical restraint is required for false imprisonment,

but this does not mean actual physical force must be

used. Refusing to provide one with the means to

overcome a physical barrier can constitute restraint.

Intentional Infliction of Emotional Distress:

Where intentional conduct has been so outrageous in character and extreme

in degree as to go beyond all possible bounds of decency.

State Rubbish Collectors Ass’n v. Siliznoff (1952): Defendant alleged

that agents of Plaintiff threatened him with physical violence if he

did not make an arrangement to pay Plaintiff’s member the money

derived from the collection.

o There exists a cause of action for intentional infliction

of emotional distress for serious threats of physical

violence whether or not such threats technically rise to

the level of assault.

Solcum v. Food Fair Stores of Florida (1958): Plaintiff was a

customer in Defendant’s store and asked an employee the price of

an item. The employee insulted her by responding that “[i]f you

want to know the price, you’ll have to find out the best way you can

because “you stink to me”.

o Mere expressions of insults or general abuse are not

actionable unless it can be shown that they were

intended to bring about severe emotional distress.

Harris v. Jones (1977): Defendant (Supervisor) frequently mocked

Plaintiff (worker) about his speech impediment and his condition on

the job, causing him to feel distress.

o For intentional infliction of emotional distress: 1) the

conduct must be intentional or reckless; 2) the conduct

must be extreme and outrageous; 3) the wrongful

conduct must cause the distress; and 4) the emotional

distress must be severe.

Taylor v. Vallelunga (1959): Plaintiff alleges Defendants physically

attacked him and his daughter, alleges she witnessed the attack.

o For one to recover for emotional distress when she has

experienced no physical injury, she must establish that

the Defendant intentionally caused her to suffer from

severe emotional distress.

Trespass to Land: Unauthorized entry upon another’s land.

a. Quiet title: when one is in possession of the land, but another is claiming

possession.

b. Ejectment: when a defendant is in possession of land but another would

like them removed

Dougherty v. Stepp (1835): Defendant entered Plaintiff’s land to

perform a survey, but did not mark trees or cut timber. Plaintiff sued

for trespass.

o Every unauthorized entry upon another’s land qualifies

as a trespass, regardless of the degree of damage

done in the process.

Herrin v. Sutherland (1925): Defendant, while hunting, fired his

shotgun at birds flying over Plaintiff’s land.

o Interference with the airspace over one’s property can

give rise to an action for trespass.

Rogers v. Board of Road Com’rs for Kent County (1947): Defendant

placed a snow fence and posts upon Plaintiff’s husband’s property

with the understanding that it would be removed at the end of

winter. Defendant did not remove the fence at the end of winter,

and Plaintiff’s husband was killed by an accident involving the

fence’s continued presence on his property.

o When one consents to the presence of a structure or

chattel on his property and that structure or chattel is

not removed after the consent is revoked or

terminated, he may recover for damages resulting

from its continued presence.

Trespass to Chattel:

physical interference with the chattel (personal, moveable property) in the

possession of another.

Glidden v. Szybiak (1949): A dog owned by Defendants bit Plaintiff,

a four year-old girl. Plaintiff sued to recover for her personal injuries.

o In order to prove a case of trespass to chattels, there

must be damage to the chattel, the owner must be

deprived of use of the chattel for a substantial period

of time, or bodily harm must result from the trespass.

CompuServe Inc. v. Cyber Promotions, Inc. (1997): Despite Plaintiff’s

request that they cease to do so, Defendants continually distributed

unsolicited e-mail advertisements to the subscribers of Plaintiff.

Plaintiff sought to enjoin Defendants from continuing in its efforts to

send such unsolicited messages to its subscribers.

o Electronic signals sent via a computer are sufficiently

tangible to form the basis of a cause of action for

trespass to chattels, and interference therewith can be

actionable.

Conversion:

intentional dominion over a chattel that interferes with another’s rights to

control it.

Pearson v. Dodd (1969): Staffers of Plaintiff, a United States

Senator, repeatedly entered his office and removed various

documents. They made copies of the documents and distributed the

copies to Defendants, who published their contents.

o Conversion is the intentional exercise of control or

dominion over a chattel that interferes with another’s

rights to control it with sufficient severity that the

party exercising such control may fairly be required to

pay for its full value.

o Where information is gathered and arranged at some

cost and sold as a commodity on the market, it is

properly protected as property.

Privileges: 9 Defenses to intentional tort liability.

Consent: a party’s willingness for conduct to occur.

a. In order to be valid, consent must be given by one who is

capable of consent and

b. Defendant actions do not exceed the scope of consent.

c. Can be withdrawn and cannot be fraud or duress.

O’Brien v. Cunard (1891): all passengers on defendant’s

ship were required to be vaccinated; plaintiff was a

steerage passenger who allegedly didn’t consent to

vaccination.

When consent to act is not explicitly

expressed, an individual may rely on the

other party's behavior and overt acts in

order to determine whether that party has

consented to the individual's conduct.

Hackbart v. Cincinnati Bengals, Inc. (1979): One football

player intentionally hit another.

Even in an inherently violent situation such

as a game of professional football, it is

possible for one to go beyond its customs

and so be liable for injuries in tort if the act

was intentional.

Mohr v. Williams (1905): Plaintiff sues a surgeon, for

assault and battery after Defendant successfully and

skillfully performed an operation on Plaintiff’s left ear

without specific consent.

If an operation is performed without

Plaintiff’s consent, and the circumstances

were not such as to justify its performance

without consent, then the operation is

wrongful and thus unlawful.

Medical care providers may act in absence

of expressed consent if: 1) the patient is

unable to give consent, 2) there is risk of

severe bodily harm, a reasonable person

would consent under the circumstances and

4) the physician has no reason to believe

the patient would not consent.

De May v. Roberts (1881): Plaintiff (Roberts) had

requested that a doctor, visit her house for

medical purposes. He arrived along with a second

person, Defendant Scattergood, who was not a

doctor.

Consent given under false pretenses is

not valid consent and will not operate

as a defense to a subsequent action.

Self-Defense: anyone is privileged to use reasonable force to defend

himself against a threatened battery on the part of another.

a. The privilege exists when the defendant reasonably believes

that the force is necessary to protect him against battery.

b. If during self-defense a bystander is hurt, one is not liable for

negligence.

c. Verbal provocation, excessive force, and retaliation are not

privileged.

Exception : if the abusive words are accompanied by an

actual threat of physical violence reasonably warranting

an apprehension of imminent bodily harm, one may be

privileged to defend.

Defense of others: a person may use reasonable force to defend a

3rd party from impending attack by another person.

a. The person can only use the amount of force that the 3rd

party would have been privileged to use.

Reasonable mistake: If one makes a mistake about

whether force is necessary, one is protected by a

reasonable mistake defense.

Defense of property: one may use non-deadly, reasonable force

under the circumstances to protect property.

o Katko v. Briney (1971): Defendants rigged a shotgun in a

bedroom positioned to shoot trespassers in the legs upon

opening the door. Plaintiff Katko entered the bedroom

unlawfully which triggered the gun and most of his entire right

leg was blown away.

Premises owners do not have a privilege to

protect their property using force intended or

likely to cause death or serious harm against a

trespasser.

a. Possessor who used force to defend property in a reasonably

mistaken belief that he was entitled to privilege is not

protected unless the intruder in some way mislead the

possessor as to his id or authorization.

Recovery of property: An owner of a chattel, wrongfully

dispossessed of that item (by fraud or force), has a privilege to take

prompt action and use reasonable force under the circumstances

(non-deadly) to recapture the chattel.

a. Fresh pursuit is required, person entitled to recover property

w/o legal intervention UNLESS a lapse of time/delay has

occurred; must be prompt discovery and pursuit without

unreasonable delay.

b. Must not breach the peace.

c. Reasonable force is not permitted until a demand for return of

chattel has been made unless such a demand would be futile

or dangerous.

Hodgenden v. Hubbard (1846): Plaintiff purchased a

stove from Defendants on credit and took it away.

Defendants quickly discovered that Plaintiff’s credit

information was false and immediately set out to

overtake him and recover the stove by force.

o Bonokowski v. Arlan's Department Store (1968): Plaintiff had

left department store after shopping. She was asked to see

the contents of her purse but it was found that she did not

shop lift.

There exists a privilege for merchants or

shopkeepers to detain those whom they

reasonably believe to have unlawfully taken

chattels for a reasonable investigation and

thereby avoid liability for false imprisonment.

Public Necessity: Use of private property by a public official for a

public purpose.

a. Where there is imminent danger and a real public necessity,

there is privilege.

Surocco v. Geary (1853): Alcalde of San Francisco

(Defendant), in the midst of a massive fire, destroyed

Plaintiff’s house in an effort to stave off the fire.

A person who tears down or destroys the

house of another, in good faith, and under

apparent necessity, during a deadly fire, in

an effort to save the adjacent buildings and

to stop the fire’s progress, cannot be held

personally liable in an action by the owner in

connection with the destroyed property.

Vincent v. Lake Erie Transp. Co. (1910): A steamship

owned by Lake Erie Transportation Co. was tied at

Vincent’s dock to unload cargo. A storm arose and the

vessel was held secure to the dock causing $500 in

damage to the dock.

Where one reasonably believes his interests

outweigh the loss or harm another may

incur, his conduct is privileged. That person

will be held liable, however, to the extent he

or she causes damage to another’s property

or land. **private necessity**

Authority of Law: one of official capacity may act under authority of

law, engaging in conduct that otherwise would be tortious.

a. Examples include arrests made by police with or without a

warrant if made in good faith.

Discipline: One who has the rightful control of another, has the

privilege of exercising reasonable force and restraint upon them,

without inflicting great bodily harm.

a. This privilege usually extends to parents, teachers, and

military/naval officers.

Justification: A defendant’s act may be privileged if reasonable

under the circumstances to protect others from personal injury or

protect property despite not falling under any of the other privileges

o Sindle v. New York City Transit Authority (1973): Plaintiff was

a passenger on a school bus owned by Defendant transit

authority and driven by Defendant Mooney. Students aboard

the bus were behaving rather disobediently and causing

damage to the bus despite Defendant’s admonitions.

Ultimately, Defendant bypassed the usual stops and took the

Plaintiff and a few other students to a police station.

Reasonable restraint or detention undertaken

with the aim of preventing another from inflicting

personal injury or damaging property is not

unlawful.

Negligence: a separate form as a basis for unintended torts.

*professional, children, med mal, res ipsa loquitor, negligent per se, ect*

A cause of action for negligent requires:

a. A duty of reasonable care

b. A breach of that duty

c. A causal connection between the conduct and the resulting

injury

d. Actual damages resulting from the breach.

(duty + breach = liability)(Liability x causation=

damages)

A plaintiff has three different burdens of proof: 1) the burden of

pleading, 2) the burden of coming forward with enough evidence to

avoid directed verdict against him and 3) the burden of persuading

the jury.

Lubitz v. Wells (1955): Defendant Wells, Sr. left a golf club lying in

his yard. His son, Defendant Wells, Jr. and his friend, Plaintiff, were

playing in the yard when Wells, Jr. discovered the club. Wells, Jr.

picked up the club and swung it, striking the Plaintiff in the face and

injuring her.

o A golf club is not so inherently dangerous that leaving

it lying in a yard can constitute negligence.

o Children under 7 are incapable of negligence, children

age 7-14 may be presumed incapable, but may be

proved capable and children over 14 may be presumed

capable, but may be proved incapable.

Blyth v. Birmingham Waterworks Co. (1856): Defendants had

installed water mains along the street with hydrants located at

various points. One of the hydrants across from Plaintiff’s house

developed a leak as a result of exceedingly cold temperatures and

caused water damage to the house. Plaintiff sued for negligence.

o A mere accident that is not occasioned by the failure to

take action or the taking of such an action does not

qualify as negligence.

Gulf Refining Co. v. Williams (1938): Plaintiff was injured after a

gasoline container delivered by Defendant exploded while he was

trying to remove its cap. The explosion occurred as a result of a

spark caused by worn threads on the cap.

o Foreseeability of a harm is the existence of such a

likelihood of damage so as to induce action to take

care against it on the part of a reasonably prudent

person.

Chicago, B. & Q.R. Co. v. Krayenbuhl (1902): Plaintiff, a four year-

old child, was injured while playing on dangerous equipment owned

and operated by Defendant, a railroad company. Despite the fact

that Defendant had rules requiring the equipment to be locked and

inaccessible to members of the public, Plaintiff was able to access it

when he discovered it

o With respect to dangerous instrumentalities, the

character, location, and utility of the instrumentality

as well as the ease of making it safer must be taken

into account in determining what degree of precaution

is necessary so as not to be negligent.

Davison v. Snohomish County (1928): Plaintiffs were driving their

car across a bridge, at which point the car lost control and drove off

the road, over the guardrail. Plaintiffs suffered severe injuries and

wrecked their automobile. Plaintiffs brought an action to recover for

their damages.

o While municipalities are required to maintain roads for

public use, there are limitations to the extent of safety

that can be provided to all roads. For elevated

causeways or viaducts, municipalities are required only

to take such measures as are reasonable to prevent

against injury. Absolute safety cannot be guaranteed.

United States v. Carroll Towing Co. (1947): Plaintiff’s barge broke

away from Defendant’s tugboat and started to leak after it was

swept away into the propeller of a tanker.

o When the magnitude of the risk exceeds the utility of

the conduct, there is a duty of care to protect others

from harm. The owner’s duty, as in other similar

situations, to prevent against resulting injuries is a

function of three variables: (1) The probability of the

kind of incident in question; (2) the gravity of the

resulting injury; and (3) the burden of adequate

precautions.

Vaughan v. Menlove (1837): Defendant paced a stack of hay near

cottages owned by Plaintiff. Defendant was warned that there was a

substantial possibility that the hay would ignite, and Defendant

replied that he would “chance it”. The hay eventually did ignite and

burn Plaintiff’s cottages

o One has behaved negligently if he has acted in a way

contrary to how a reasonably prudent person would

have acted under similar circumstances.

Delair v. McAdoo (1936): Defendant attempted to pass Plaintiff as

they were driving in their cars. Defendant’s tire exploded as they

were alongside one another, causing a collision.

o Drivers are required to know the condition of the parts

of their vehicles that may become dangerous when

their dangerous condition could be found through a

reasonable inspection.

Trimarco v. Klein (1982): Plaintiff suffered severe injuries when the

glass of a bathtub he was in shattered. Defendants owned the

building in which the incident occurred, and had used ordinary glass

for the bathtub enclosure despite the common practice of using

shatterproof glass in such cases. Plaintiff sued for his personal

injuries.

o When custom and practice have removed certain

dangers, the custom may be used as evidence that one

has failed to act as is required under the

circumstances.

Cordas v. Peerless Transportation Co. (1941): A taxi driver working

for the Defendant, Peerless Transportation Co. (Defendant), jumped

from his taxi while it was running to escape an armed highwayman

who was being pursued by his victim. The car, now driverless, ran

up onto a sidewalk and injured the Plaintiff, Cordas (Plaintiff), a

pedestrian.

o Reasonable and prudent action is based on the set of

circumstances under which the actions took place. To

qualify as a sudden emergency, the event must be

unforeseen, sudden and unexpected.

Roberts v. State of Louisiana (1981): The Plaintiff, Roberts (Plaintiff),

fell and broke his hip when a blind man bumped him into.

o The handicapped are held to a reasonable standard of

care for a person with their disability, the handicap is

considered part of the circumstances.

Robinson v. Lindsay (1979): The plaintiff, an eleven-year-old girl,

lost the use of her thumb as a result of a snowmobile accident. The

driver of the snowmobile was a thirteen-year-old boy.

o When a child causes injury by engaging in dangerous

or adult conduct, they are held to an adult standard of

care.

Breunig v. American Family Ins. Co. (1970): The Plaintiff, Breunig

was injured in a car accident when Erma Veith, the Defendant,

American Family Ins. Co.’s (Defendant) insured, drove her car into

the Plaintiff’s truck after suffering a schizophrenic attack.

o It is unjust to hold a person to a reasonable person

standard in evaluating their negligence when a mental

illness comes on suddenly and without forewarning

causing injury to another.

o Most courts do not make any allowance for the mental illness

of a defendant in torts cases—the defendant is judged by the

reasonable person standard.

Heath v. Swift Wings, Inc. (1979): Pilot error caused an airplane

crash, killing the pilot and the passengers.

o Professional standard of care is not a subjective

standard, it is an objective standard (the knowledge,

training, and skill of an ordinary member of the

profession in good standing) predicated on the rules

and guidelines of the profession.

Hodges v. Carter (1954): The Plaintiff, Hodges is suing the

Defendants, his former attorneys, alleging that they negligently

prosecuted his insurance claims against out of state insurance

companies when the attorneys failed to properly serve the

complaints.

o Attorneys are not liable for errors in judgment or

mistakes of law if they: 1) possess the requisite degree

of learning, skill and ability necessary to practice, 2)

he will exert his best judgment and 3) he will exercise

reasonable and ordinary case and diligence in the use

of his skill and in the application of his knowledge.

Boyce v. Brown (1938): Nannie Boyce suffered pain and disability

seven years after the Defendant, Brown placed a metal screw in her

ankle. The Plaintiffs, sued the Defendant.

o Medical malpractice can only be shown where, by

expert testimony, it is established that the doctor

acted outside of the community norms in their

treatment of the patient.

Morrison v. MacNamara (1979):

Scott v. Bradford (1979):

Moore v. Regents of University of California (1990):

Pokora v. Wabash Ry. Co. (1934):

Osborne v. McMasters (1889):

Stachniewicz v. Mar-Cam Corp. (1971):

Ney v. Yellow Cab Co. (1954): Yellow Cab Co.’s (Defendant), cab

was stolen from the street side where its driver had left it running,

unlocked and unattended. While driving the stolen cab, the thief

struck and damaged the Plaintiff, Ney’s vehicle.

o If the harm resulting from negligence is foreseeable,

then an intervening criminal act does not break the

chain of causation.

Perry v. S.N. and S.N. (1998): The parents of two children who were

sexually abused at their day care center filed a complaint against

friends of the alleged abusers for failing to report the abuse. In

failing to report, the defendants violated a section of the Family

Code.

o A cause of action in negligence per se requires that

there be an underlying duty at common law.

Martin v. Herzog (1920): Elizabeth Martin’s husband William Martin,

was driving a buggy after dark without using lights. He was killed

when the Defendant, Herzog’s car collided with the buggy.

o If the plaintiff’s negligence is a contributory cause of

the injury, then he cannot recover for the negligence

of the defendant.

Zeni v. Anderson (1976): Zeni was injured when she was hit by the

Anderson’s car on her way to work. The Plaintiff was not using a

sidewalk, but a snow path, and was therefore in violation of a

statute requiring pedestrians to use sidewalks where available.

o The violation of a statute creates a rebuttable

presumption of negligence, which can be overcome by

providing an adequate excuse as to why the statue

was ignored.

Goddard v. Boston & Maine R.R. Co. (1901):  An individual slipped

on a railroad platform after stepping on a banana peel and

sustained certain injuries.

o A railroad is not liable for negligence, if a passenger of

the railroad may have perpetrated the negligent

action.

Anjou v. Boston Elevated Railway Co. (1911): Anjou (Plaintiff),

slipped and fell on a banana peal left on the Boston Elevated

Railway Co.’s (Defendant), train platform.

o Circumstantial evidence can be used to establish proof

of negligence.

Joye v. Great Atlantic and Pacific Tea Co. (1968): Joye (Plaintiff),

slipped and fell on a banana peal in the Atlantic and Pacific Tea

Co.’s (Defendant), store.

o If there is no evidence to establish that the defendant

had notice of the hazard, then the plaintiff cannot

prove negligence.

Ortega v. Kmart Corp. (2001): Slip and fall in Kmart’s refrigerated

section.

o Plaintiffs may demonstrate the storekeeper had

constructive notice of the dangerous condition if they

can show that the site had not been inspected within a

reasonable period of time so that a person exercising

due care would have discovered and corrected the

hazard.

Jasko v. F.W. Woolworth Co. (1972): Jasko (Plaintiff), was injured

when she slipped and fell on a slice of pizza in the F.W. Woolworth

Co.’s (Defendant), store.

o When the defendant engages in a business that is

prone to hazardous mishaps, then the nature of the

business serves to put the business on notice of

possible injuries.

H.E. Butt Groc. Co. v. Resendez (1999): Slip and Fall near grapes.

o A plaintiff in a slip and fall case must prove that the

condition of the premises posed an unreasonable risk

of harm, and the facts and circumstances will

determine whether such risk is unreasonable.

Res Ipsa Loquitor : the elements of duty of care and breach can be

sometimes inferred from the very nature of an accident or other outcome,

even without direct evidence of how any defendant behaved.

The plaintiff's injury must be of a type that does not ordinarily occur

unless someone has been negligent.

The plaintiff's injury or damage must have been caused by an

instrumentality or condition that was within the exclusive control of

the defendant.

The event in question must not have been attributable to any fault

of plaintiff is responsible.

o Byrne v. Boadle (1863): Byrne testified that he was walking

along Scotland Road when he evidently lost consciousness.

Witnesses testified that a barrel of flour fell on him. Neither

Plaintiff nor any of the witnesses testified as to anything done

by Boadle that could have led to the barrel falling.

A plaintiff must persuade a jury that more likely

than not the harm-causing event does not occur

in the absence of negligence. The plaintiff does

not have to eliminate all other possible causes for

the harm, nor does the fact that the defendant

raises possible non-negligent causes for the harm

defeat plaintiff’s effort to invoke res ipsa. The key

is that a reasonable jury must be able to find that

the likely cause was negligence.

o McDougald v. Perry (1998): McDougald, was injured when the

spare tire flew off of the Defendant, Perry’s, trailer and hit the

McDougald windshield.

Res Ipsa Loquitur applies to rare occurrences

where the accident itself is evidence upon which

to base an inference of negligence.

o Larson v. St. Francis Hotel (1948): Larson, was injured when

an armchair thrown from a window of the Defendant, St.

Francis Hotel, struck her.

Res Ipsa Loquitur does not apply unless the

object that caused the accident is under the

exclusive control of the defendant and under

ordinary circumstances using ordinary care, the

accident would not have happened.

o Ybarra v. Spangard (1944): In a personal injury action, the

Superior Court of Los Angeles County entered judgments of

nonsuit as to all Defendants in an action for damages for

personal injuries.

When Plaintiff receives unusual injuries while

unconscious and in the course of medial

treatment, all those defendants who had any

control over his body or the instrumentalities,

which might have caused the injuries, may

properly be called upon to meet the inference of

negligence by giving an explanation of their

conduct.

o Sullivan v. Crabtree (1953): The passenger in a truck was

killed when the truck swerved and went off the road and down

a steep embankment. The driver of the truck was unable to

determine the exact cause of the accident.

The doctrine of Res Ipsa Loquitur creates a

burden on the defendant to show a reasonable

explanation for the injury. The strength of that

burden depends on the facts of each case and the

strength of the inference created.

Causation: There are two types of causation, cause-in-fact or proximate

cause.

Duty +Breach =Liability…Liability +Causation= Damages

BLSA Torts Review 8/27/13 10:57 AM

Elemen

t

Rule

Battery Assault Tress

(land)

Tress

(Chattel)

IIED False

Impris.

Conversion

V.con - - - - - - -

Intent Touch/

Appr.

Touch/

Appr.

Entry Inter. Distress Con-

finement

Serious

Interference

Cause - - - - - - -

Ess.

Ele-

ment

Touch/

Appr.

Appr.

of

Imm.

battery

Entry on

land of

another*

Inter. w/

Property

of

another

Serious

infliction

of

distress,

extreme

&outrag

e

Con-

finement

Serious

inter. w/

Possession

rights of

property of

another

w/o

consent

- - - - - - -

Rule Statement Formula:

1) Volitional Conduct: Consciousness

2) Intention to cause: a) purpose, b) knowledge to substantial certainty

3) and causing: “reasonable person standard” applies here, a reasonable

person should have known that effect would be caused.

4) insert essential tort element here

5) w/o consent or privilege

Transferred Intent only applies to Battery, Assault, Trespass to Land,

Trespass to Chattel, False Imprisonment and Conversion only. The elements

include: 1) intend the first forcible tort, 2) another resulting forcible tort

happened, 3) direct, 4) immediate (no time lapse).

Trespass to Land: Five ways for entry; 1) personal entry, 2) cause a 3rd

person’s entry, 3) cause a thing to enter land, 4) remain on land after

privilege (time, space or purpose) is revoked, 5) failing to remove a thing

from land.

Trespass to Chattels: There must be damages to win a claim. In order to

prove damages, you must show: 1) deprivation (use loss) for substantial

period of time and 2) physical quality or value diminished.

Conversion: Five ways to convert property; 1) take possession, 2) transfer

possession, 3) withhold possession, damage/alter possession and 4) use.

Four factors of seriousness: 1) extent of control (how much), duration (how

long), inconvenience and 4) damage or harm. In order to determine

damages, examine the initial market value and subtract the market value at

the time of conversion.

False Imprisonment: Five ways to confine; 1) force against person, 2) force

against property, 3) threat against person, 4) threat against property, 5)

legal authority, 6) physical with no reasonable means of escape.

Confinement must be direct and the plaintiff must know about the

confinement.

IIED: Use a reasonable person standard to establish extreme and outrageous

behavior, unless the defendant has prior knowledge of special circumstance

surrounding one’s sensitivity. No physical

Issues can be written as such: Volitional conduct with intent to

cause and causing…

Defenses:Consent: Can be expressed or implied. There are 5 elements to have implied

consent; 1) unable to consent, 2) risk of serious harm, 3) harm emergent, 4)

no other reason to believe consent wouldn’t be given and 5) would a

reasonable person have consented. Consent can be limited by time, space

and purpose. Conceit is a defense to consent.

Defense of Others

Defense of Property: 1) exclusive possessory rights to property, reasonable

force (no killing/serious bodily harm unless its in your current dwelling),

privilege or consent to be there.

Self Defense

Recovery of Property: 1) taken by force/fraud, 2) promptly discover it was

taken, 3) promptly and persistently pursue, 4) reasonable force. (Hogens v.

Hubbard)

Shopkeeper’s privilege: 1) must be a store owner, 2) reasonably

suspect there is a taking of property 3) reasonable force to detain

(to investigate).

Public Necessity: Use of private property by a public official for a public

purpose to benefit a substantial part of the community.

Tips for Exams:

Read the fact pattern through once

Number each tort as they appear in the fact pattern

Do separate IRAQs for each individual tort claim (i.e. one for battery

facts, one for assault facts, one for IIED facts, ect.)

Preponderance standard of proof

Evidence: Basic FactInference- Circumstances

Presumptions

a. Conclusive

b. Rebuttable

Direct fact

Plaintiff’s Burden of Proof1) Pleading

2) Going forward at trial

3) Risk of non persuasion at trial

Negligence per se Statue Presumption of negligence-violation of safety statute=prima facia case, but

rebuttable and burden is upon the opposing party to establish a legally

sufficient excuse.

1) protected class of persons

2) person in protected class

3) statute in place for statute

Brittain Torts Review 8/27/13 10:57 AM

Market share liability is a modern tort theory, developed by courts to

facilitate recovery for plaintiffs who, injured by fungible, mass-marketed

products, were unable to identify the responsible manufacturer with

enough certainty to establish causation. Since its creation, plaintiffs

proceeding under market share liability have been denied recourse to

punitive damages awards, and limited to recovery of compensatory

damages, developed to assess blame to a certain number of defendants who

made generic, non-traceable product.

RIL: 1) but for negligence, the incident wouldn’t have happened, 2) plaintiff

isn’t at fault and 3) the defendant had sole control over the item that caused

the damage. Its an evidentiary rule presented after the case has been

presented to the jury.

Negligence per se: 1) statute in place to protect from harm, 2) plaintiff is in

the class of protected persons.

Duty

Product Liability:

Nuisance:

Defamation:

Invasion of Privacy:

Civil Rights:

Misuse of Legal Procedure:

Misrepresentation:

Interference with Advantageous Relationships:

Torts II Notes 8/27/13 10:57 AM

Negligence Joint tortfeasors: When two or more people are responsible for the same

liability, they may be jointly liable, severally liable or joint and severally

liable.

Joint liability: each party is liable up to the full amount of the

relevant obligation.

Several liability: the parties are liable for only their respective

obligations.

Joint and several liability: whereby a plaintiff may recover all the

damages from any of the defendants regardless of their individual

share of the liability.

Duty of Care Privity of contracts:

Non-feasance:

Misfeasance: