torts outline 2012

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TORTS OUTLINE 2/11/12 11:18 PM STRICT LIABILITY ELEMENTS FROM BARBRI: 1) The nature of defendant’s activity imposes an absolute duty to make safe. 2) the dangerous aspect of the activity is the actual and proximate cause of the plaintiff’s injury; and 3) the plaintiff suffered damage to person or property ELEMENTS FROM CLASS: 1) ∆ was a merchant 2) absolute duty owed by a commercial supplier 3) production or sale of a defective product 4) actual and proximate cause 5) damages o Privity of contract not required (can sue anyone in distribution change) GOALS OF STRICT LIABILITY: o Loss-spreading o Loss avoidance o Loss allocation o Administrative efficiency

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Page 1: Torts Outline 2012

TORTS OUTLINE 2/11/12 11:18 PM

STRICT LIABILITY ELEMENTS FROM BARBRI: 1) The nature of defendant’s activity imposes an absolute duty to

make safe. 2) the dangerous aspect of the activity is the actual and proximate

cause of the plaintiff’s injury; and 3) the plaintiff suffered damage to person or property

ELEMENTS FROM CLASS: 1) ∆ was a merchant 2) absolute duty owed by a commercial supplier 3) production or sale of a defective product 4) actual and proximate cause 5) damages

o Privity of contract not required (can sue anyone in distribution change)

GOALS OF STRICT LIABILITY:o Loss-spreadingo Loss avoidanceo Loss allocationo Administrative efficiency

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o Fairnesso Protection of individual autonomy

COMPARE TO NEGLIGENCE:o Moral views of interpersonal conducto Opt out of the dangerous business or assume the risk

ABNORMALLY DANGEROUS ACTIVITIES: Rest. 520o DEFINITION: an activity may be characterized as abnormally

dangerous if it involves a substantial risk of serious harm to person or property no matter how much care is exercised. Whether an activity is abnormally dangerous is a question of law that the court can decide on a motion for directed verdict.

o TEST: 2 Requirements: 1) the activity must create a foreseeable risk of serious

harm even when reasonable care is exercised by all actors; and

2) the activity is not a matter of common usage in the community

o RYLANDS V. FLETCHER: Mill owner held strictly liable when a neighbor’s mines were flooded from water escaping from the mill owner’s reservoir. This was considered an abnormal use in mining country.

Also: blasting, manufacturing explosives, crop dusting, fumigating.

Life is more important than the right to use property Natural: no strict liability Unnatural: ∆ deemed to have acted at own risk Distinguished: in TX we loosen strict liability for

unnatural uses of land if it’s customaryo SULLIVAN V. DUNHAM: blasters are liable for direct

consequences of their actions. No liability for consequential injuries if there is no negligence

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o PRODUCTS LIABILITY: there may be strict liability imposed for damage caused by products, depending on the theory used by a court in resolving such problems.

6 FACTORS FOR ABNORMALLY DANGEROUS: R. 520

THOMAS V. WINCHESTER: Rule: if the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger.

o Irrespective of contract the manufacturer is under a duty to make it carefully

Restatement 2nd and 3rd Distinctions:o 402(A) Restatement 2nd:

“unreasonably dangerous”o Restatement 3rd:

3 different types of defects all possible care was taken foreseeable risks of harm could have been

reduced inadequate instructions

o Tests: Consumer Expectation Test (2 nd Restatement)

Limits liability to end user Depends on what the consumer’s expectations

are Risk Utility Analysis

takes into account all the care taken in preparation

you can use experts but; expands liability to any user not just the end

user

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DEFENSES: DEFENSES FOR PRODUCTS LIABILITY:

o GM V. SANCHEZ: a consumer has not duty to discover or guard against defect. Contributory negligence by P is not a defense when such negligence consists merely in a failure to discover the defect in a product

o Statutes of repose: SoL but begin to run when product soldo JONES V. RYOBI: when a third party’s modification makes a

safe product unsafe, the seller is relieved of liability even if the modification is foreseeable

OPEN AND OBVIOUS DANGER: (Camacho)o The test to determine if a danger is open and obvious is

whether "an average user with ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection.

LIRIANO V. HOBART CORP: manufacturer liability can exist under a failure-to-warn theory even in cases where the substantial modification defense bars a design defect claim

o Court doesn’t want to expand the scope of a duty to prevent all possible injuries for manufacturers but they do think that the duty to warn has a more limited scope focusing on the foreseeability of the risk

o Also a duty to warn of dangers discovered after the product is sold.

PRODUCTS LIABILITY: Liability of a supplier of a product to one injured by the product THEORIES:

o Intento Negligenceo Strict liability

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o Implied warranties of merchantability and fitness for a particular purpose

o Representation theories

EXISTENCE OF A DEFECT:o Plaintiff MUST SHOW that product was defective when the

product left ∆’s controlo TYPES:

Manufacturing defects: different than the others and more dangerous

Design defects: all made the same but have dangerous propensities because of their mechanical features or packaging

Inadequate warnings: type of defect design Must have clear and complete warnings of any

dangers that may not be apparent to userso “DEFECTIVE PRODUCT”

P must prove that product was dangerous beyond the expectation of the ordinary consumer

Food: consumer expectation approacho DESIGN DEFECT:

P must show that a less dangerous modification or alternative was economically feasible

Must be practical Cheaper or not much more expensive Less dangerous

MACPHERSON V. BUICK: if the object can place someone’s life in danger if negligently made then it can be a thing of danger

o There is a duty to make a product carefullyo Manufacturers are responsible for the finished product

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o Thomas v. Winchester: Mislabeled poison= inherently dangerous

o Loop v. Litchfield: Bad wheel on a sawing machine (accident after 5 years and user knew of bad wheel; risk of injury too remote, not liable.)

ESCOLA V. COCA COLA: public policy demands the responsibility be fixed wherever it will most effectively reduce the hazards.

o manufacturer can handle the costo Traynor’s Concurrence: 2 tests for PL

Consumer Expectation (402A) Risk utility analysis

Restatement 2nd: 402A: Defines defective state in terms of consumer’s expectations

o What is considered “unreasonably dangerous” to consumero TEST: Consumer expectation test

Limits liability to end user Seller liable if engaged in business in selling Must reach end user without substantial change

Restatement 3rd: gives three types of defectso All possible care was takeno Foreseeable risks of harm could have been reducedo Inadequate instructionso TEST: risk utility analysis

Expands liability to any user, not just end user Can use expert testimony

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SOULE V. GM: Basically a decision over what type of test should be used in design defect cases: a reasonable user standard or the risk-benefit test with use of experts and geared to “reasonable safety”

CAMACHO V. HONDA: o Crashworthiness doctrine: a motor vehicle manufacturer

may be liable in negligence or strict liability for injuries sustained in a motor vehicle accident where a manufacturing or design defect, though not the cause of the accident, caused or enhanced the injuries

o Duty of reasonable care by the manufacturers to minimize the injurious effects of a foreseeable collision by employing common sense safety features

GM Case v. Camacho case: court discusses the different tests, we’re not completely throwing out the consumer expectation test, but we recognize that there are some types of cases where it doesn’t work

Consumers are justified in assuming what they buy is reasonably safe, depending on many factors.

o Usefulness/desirabilityo Safety/likelihood of injuryo Availability of substituteo * Manufacturers ability to eliminate unsafe partso User’s ability to avoid danger by using careo User’s anticipated awareness of inherent dangerso Feasibility of spreading the loss by setting price or carrying

liability insuranceo Dissent in Camacho asks which test?

COMMON DEFECT PROBLEMS: Misuses: suppliers must anticipate reasonable foreseeable uses

even if they are misuses of the product Scientifically Unknowable Risks: ex. New drugs

o Courts generally refuse to find the drugs unreasonable dangerous where it was impossible to anticipate the problem and make the product safer or provide warnings

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Allergies: if allergic group is significant in number, product is defective unless adequate warnings are conveyed

o Trend: requires warnings whenever manufacturer knows that there is a danger of allergic reaction, even though the number affected may be very small.

ELEMENTS:o Merchant / commercial suppliero Defecto Product was not altered

(presumed if it traveled in ordinary channels of distribution)

o P was making foreseeable use of product

SAFETY INSTRUCTIONS AND WARNINGS: Purpose: reduce risks and warn of irreducible dangers Brown Forman Corp. v. Brune: no notice is required for a bottle

of tequila Maneely v. GM: No duty to warn of the dangers of riding in the

bed of a pickup truck

HOOD V. RYOBI: Sufficient warning, need only be reasonable under the circumstances.

o Prolific warnings tend to do more harm than goodo Standard for adequacy:

Warning must adequately indicate the scope of danger Reasonably communicate the extent or seriousness of

the harm that could result from misuse of the product Physical aspects of warning must be adequate to alert a

reasonably prudent person to the danger Simple directive warning may be inadequate when it

fails to indicate the consequences

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Means to convey the warning must be adequate STATE V. KARL: Court declined learned intermediary doctrine

where manufacturer is excused from warning each patient who receives the drugs when the manufacturer properly warns the prescribing physician of the dangers

o Outdated bc people can bypass doctors easilyo Reasons for not adopting the doctrine:o 1) informed consent requires a patient based decision rather

than the paternalistic approach of the 1970so 2) Drs have less time than eer to inform patients of the risks

and benefitso 3) sine they spent 1.3 billion in advertising in 1998.. it’s hard

to say they can’t effectively advertise

VASSALLO V. HEALTHCARE CORP: a manufacturer will be held to the standard of knowledge of an expert in the appropriate field, and will remain subject to a continuing duty to warn (At least purchasers) of risks discovered following the sale of the product at issue.

INTENT: either specific or general SPECIFIC INTENT:

o When a person acts with a purpose of inducing the consequence or acts knowingly that the consequence is substantially certain to result

o Recklessness is NOT intent

GENERAL INTENT:

TRANSFERRED INTENT:

Not enough that they act deliberately, they must desire to produce the forbidden conduct. What actor sought to achieve.

o 2 EXCEPTIONS:

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Even if you don’t desire it, you act knowing that the conduct is virtually certain to occur

Restatement Torts: substantially certain

GARRAT V. DAILEY: must prove a wrongful act has occurred

SUBSTANTIAL CERTAINTY TEST: Rest. 3rd: test be limited to situations in which the defendant has knowledge to a substantial certainty that the conduct will bring about harm to a particular victim or to someone within a small class of potential victims within a localized area.

BATTERY: Protects the integrity of the body of each of us (bubble!) ELEMENTS:

1. Intent to bring harmful or offensive contract to P’s person2. Harmful or offensive contact to Po Harmful: anything that causes blood, broken bone trip to the

hospital, it’s self evidento Offensive: if it offends a reasonable sense of dignity

3. Contact is with the P’s person

“Plaintiff’s person:” anything connected to the plaintiff’s person is viewed as part of their person

o ex. Cane, clothes, electric cooties! Doctrine of transferred intent applies Apprehension not necessary Actual damages not required

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o Can recover at least nominal damages even though he suffered no severe actual damage.

o Punitive damages may be recovered where ∆ acted with malice

PICARD V. BUICK: Assault is a physical act of threatening nature or an offer of corporal

injury which puts an individual in reasonable fear of imminent bodily harm

Battery: and act that was intended to cause and in fact did cause an offensive contact with or un consented touching of or trauma upon the body of another

WISHNATSKY V. HUEY: no requirement of actual bodily injury, uses a reasonable person’s sense of personal dignity

Assault and Battery: The difference:o Battery: the intentional act that causes a harmful or offensive

contact OR with something closely connected Reasonable person standard Battery: hit someone from behind so they have no

apprehension of the contact, but it occurs. o Assault: causes reasonable apprehension of an imminent or

immediate battery Imminent means must be in reaching distance, not over

the phone Assault ex: throwing the knife and they see it coming

but you miss

ASSAULT: Protects peace of mind ELEMENTS:

1. An act by defendant creating a reasonable apprehension of an imminent or immediate battery

2. Intent on the part of ∆ to bring about in the plaintiff apprehension of immediate harmful or offensive contact

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3. causation

REASONABLENESSo Apprehension is not the same as fear or intimidation, because

apprehension has the sense of expectationo Knowledge of act required: must be awareo Knowledge of ∆’s identity not requiredo ∆’s apparent ability to act is sufficient (even if defendant isn’t

actually capable (gun isn’t loaded but P doesn’t know )) apparent ability can create a reasonable apprehension

(if it looks like you can, even though you can, it creates a reasonable apprehension)

EFFECT OF WORDS:o Words are generally not enough (they lack immediacy)o Words that negate immediacy:

Conditional: “if you weren’t my bff I’d stab you” Not an assault because the words negate the

immediacy Where threat is real but promises action in the future

“just you wait” Conditional threat is sufficient: if the words and act

combine to form a conditonal threat, an assault will result

FALSE IMPRISONMENT: ELEMENTS:

1. An act or omission to act by ∆ that confines or restrains the plaintiff to a bounded area (against P’s will) and P knows

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2. Intent to confine or restrain the P to a bounded area3. Causation (is injured thereby)

Must be unlawful Must restrain their movement (could be a room or a city) Can be words alone, can be threats of force Restraints can be invisible

SUFFICIENT METHODS OF CONFINEMENT/RESTRAINT:o Physical barrierso Physical force

Directed at him or a member of his immediate family Action can also lie if the force is directed against P’s

propertyo Direct threats of forceo Indirect threats of force

Words that reasonably imply that the ∆ will use force against P’s person or immediate family

o Failure to provide means of escape If ∆ owes P a duty to facilitate that person’s movements,

there can be an affirmative duty to take steps to release the P.

o Invalid use of legal authority False arrests are not basis for false imprisonment Privileged arrests:

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Felony arrests without warrant Valid if officer has reasonable grounds to

believe a felony has been committed Private person can only do this if a felony

has in fact been committed and person has reasonable grounds for believing they committed it

Misdemeanor arrests without warrant Privileged if it’s a breach of the peace and

was committed in the presence of the arresting party

Arrests to prevent a crime without a warrant When felony or breach of peace is in

process of being or reasonably appears to be, arrest is privileged

Amount of Force Allowable Felony arrest: may use degree of force reasonably

necessary to make arrest Deadly force only necessary when suspect

poses a threat of serious harm Misdemeanor arrest: only the degree of force

necessary to effect the arrest but NEVER deadly force.

Shoplifting Detentions are privileged Must be reasonable belief of theft Detention must be conducted in a reasonable

manner and only non-deadly force can be used Detention must only be for a reasonable period of

time and for purpose of making an investigation

Will only lead to a charge if P is aware of the restraint and suffers harm

o Could be mental or physicalo No harm no foul: no torto If I lock you in a room while you sleep but you never know it,

it’s not false imprisonment

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LOPEZ V. DONUT HOUSE: moral pressure is not enough. Evidence must establish restraint against P‘s will as where she yields to force, threat of force, or the assertion of authority

Shoplifting cases: reasonable grounds can be a defense

INTENTIONAL INFLICTION OF EMOTIONAL

DISTRESS: ELEMENTS:

1. An act amounting to extreme or outrageous conduct Conduct that exceeds all bounds of decency tolerated

by society2. Intent on ∆ to cause severe emotional distress, or recklessness

as to ∆’s conduct Recklessness can cause liability

3. Causation If to a third party, P must show:

Present when injury occurred to other person P was a close relative of injured person ∆ knew P was present and a close relative

4. Damages; severe emotional distress Actual damages are required, but not necessary to

prove physical injuries to recover Must establish severe emotional distress

EXAMPLES OF OUTRAGEOUS CONDUCT:o Extreme Business Conduct: extreme methods of collection, if

repeated, may be actionableo Misuse of Authority: school authorities threatening and

bullying pupils

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o Offensive or Insulting Language: only actionable if there is a special relationship or a sensitivity on P’s part of which ∆ is aware

SPECIAL RELATIONSHIP SITUATIONS: common carriers and innkeepers owe special duties to their patrons that will be a basis for liability even when the act is something less than outrageous

o Ex. Bus driver insulting passenger

KNOWN SENSITIVITY: If ∆ knows P is more susceptible to emotional distress, liability will follow if ∆ uses extreme and outrageous conduct intentionally to cause such distress and succeeds

o Ex. Children, pregnant women, elderly people

LOOK FOR:o Power disparity o Repetitive

SPECIAL LIABILITY FOR MISHANDLING CORPSES: special category for mental distress resulted from intentional or reckless mishandling of a relative’s corpse

WOMACK V. ELDRIDGE: a reasonable person would or should have recognized the likelihood of the serious mental distress that would be caused in involving an innocent person in child molesting cases

o 4 element test: 1) conduct intentional or reckless (intent) 2) conduct was outrageous and intolerable 3) causal connection between conduct and distress 4) emotional distress was severe (damages)

TITLE 7 CASES:

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o Someone made 2 racial remarks, not a steady barrage

TRESPASS TO LAND: ELEMENTS:

1. An act of physical invasion of P’s property2. Intent on ∆’s party to bring about a physical invasion of

property Don’t need to know that you crossed the boundary line,

only that you are putting one foot in front of the other3. Causation

PHYSICAL INVASION:o Defendant need not enter land (can be something thrown)o Lawful right of entry expires (ex. He stays after allowed)

INTENTIONAL MISREPRESENTATION: ELEMENTS:

o Material representationo Representation is untrueo Seller knew or had reckless disregard for the trutho Intent to induce reliance (cases turn on this)o Duty to disclose

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OLLERMAN V. O’ROURKE: Factors significant to impose a duty:o Condition is latent and not readily observable by purchasero The purchaser acts upon the reasonable assumption that the

condition does (or does not) existo The vendor has special knowledge or means of knowledge not

available to the purchasero The existence of the condition is material to the transaction

RELIANCE: (her notes) o A misrepresentation is not actionable unless the plaintiff in

fact and justifiably relied (otherwise there’s no link between action and damages)

o Relying means choosing the conduct because of the representation (acting or refusing to act because of the misrepresentation)

o If you enter into a transaction without learning of the misrepresentation until after the transaction has closed or would have entered into the deal whether or not the misrepresentation would have been made, then there is NO MISREP claim.

o If the misrepresentation is SO material, then reliance is inferred

o RELIANCE NOT JUSTIFIED: when the misrepresentation is not material it makes a legal conclusion by one without a specialized

knowledge

IMPERIAL ICE V. ROSSIER: interference with a contract: awareness of an economic relationship and malicious intentional interference.

DELLA PENNA V. TOYOTA: interference with prospective economic advantage:

o Awareness of relationshipo Intentional interferenceo Resulting injury

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TRESPASS & NUISANCE: PRIVATE NUISANCE: one is subject to liability for conduct that is a

legal cause of an invasion of another’s interest in the private use and enjoyment of the land if the invasion is either

o Intentional and unreasonable, oro Unintentional and arising out of negligent or reckless conduct

or abnormally dangerous conditions or activities GRAVITY OF HARM: FACTORS: R. 827: in defining the gravity of

harm from an intentional invasion of another’s interest in the use and enjoyment of land, the following factors are important:

o the extent of the harm involvedo the character of the harm involvedo the social value that the law attaches to the type of use or

enjoyment invadedo the suitability of the particular use or enjoyment invaded to

the character of the locality; ando the burden on the person harmed of avoiding the harm

UTILITY OF THE CONDUCT- Factors Involved R. 828o In determining the utility of conduct that causes an intentional

invasion of another’s interest in the use and enjoyment of land, the following factors are important:

o The social value that the law attaches to the primary purpose of the conduct

o The suitability of the conduct to the character of the locality; and

o The impracticability of preventing or avoiding the invasion

PUBLIC NUISANCE: historically used to combat public health hazards

o an unreasonable interference with a right common to the general public;

o ex. whether the conduct involves a significant interference with the public health, public safety, the public peace, the public comfort, or the public convenience.”

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ELEMENTS:o 1) unreasonable interferenceo 2) with a right common to the general publico 3) by a person or people with control over the instrumentality

alleged to have created the nuisance when the damage occurred

BOOMER CASE:RULE: private nuisance: intentional, unreasonable, unreasonably dangerous

DEFENSES: Motive: self-defense, necessity, did it for a justifiable reason

CONSENT: Every consent has a scope! A defendant is not liable for an otherwise tortious act if P consented

to ∆’s act. o Can be given expressly, or implied from custom, conduct, or

words, or by law. EXPRESS (ACTUAL) CONSENT:

o Where plaintiff has expressly shown a willingness to submit to ∆’s conduct

1) consent by mistake: I still a valid defense unless the ∆ caused the mistake or knows of the mistake and takes advantage of it

2) consent induced by fraud: not a defense, but the fraud must go to an essential matter

3) consent obtained by duress: may be held invalid IMPLIED CONSENT:

o 1) apparent consent: consent which a reasonable person would infer from P’s conduct (ex. Sports)

inferred from usage and custom (ex. Daily life of bumping in a crowd)

o 2) consent implied by law: where action is necessary to save a life or some other important interest

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will occur in emergency situations

CAPACITY REQUIRED: incompetents, drunk persons, and very young children are deemed incapable of consent to tortious conduct

CRIMINAL ACTS: majority view is that a person cannot consent to a criminal act

o Modern Trend: differentiates between illegal acts that are breaches of the peace (street fight- consent ineffective) and those that are not (act of prostitution- consent ineffective).

o Consent Invalid where law seeks to protect members of victim’s class:

ex. Statutory rape- consent is not a good defense in an action by a member of that class

EXCEEDING CONSENT GIVEN:o If ∆ goes beyond the act consented to and does something

substantially different, he is liable

HART V. GEYSEL: follows First Restatement, no man shall profit by his own wrongdoing; one who has sufficiently expressed his willingness to suffer a particular invasion has no right to complain if another acts upon his consent.

THE PROTECTIVE PRIVILEGES: Check the timing: must be heat of the moment and responding to

an imminent or in progress threat Must have reasonable belief that the threat is genuine

SELF-DEFENSE:o When person has reasonable grounds to believe that he is

being or about to be attacked he may use such force as is reasonably necessary for protection against the potential injury

o WHEN AVAILABLE?

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Reasonable belief: apparent necessity is sufficient Reasonable mistake as to the existence of the

dangers does no vitiate the defense Retaliation not allowed: limited to force necessary to

prevent the commission of the tort (must be proportionate)

Retreat not necessary: although growing trend would impose a duty to retreat before using deadly force unless the actor is in his own home

Not available to aggressoro COURVOISER V. RAYMOND: test is whether the

circumstances would lead a reasonable man to believe his life was in danger, or in danger of receiving great bodily harm.

DEFENSE OF OTHERS:

DEFENSE OF PROPERTY:o Can never use deadly force to protect property

KATKO V. BRINEY: spring guns are prohibited except to prevent the commission of felonies of violence where human life is in danger; higher value on human safety than property rights.

NECESSITY: Only apply to property torts and are very rare PUBLIC NECESSITY:

o Where the act is for a public good, the defense is absolute PRIVATE NECESSITY:

o Where the act is solely to benefit a limited number of people, the defense is qualified

Defense is absolute if the act is to benefit the owner of the land (start a fire to stop a fire)

o HYPOS:

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Dave is cross-country hiking in rural Northern Minnesota in February and a blizzard arises and if he doesn’t take shelter immediately he will die. He sees a farmhouse and….

1) knocks, no answer, door is locked, breaks window, crawls in to take shelter, leaves the next day.

Liable to pay for the broken window 2) knocks, door isn’t locked so he walks in, takes

shelter, gets sued. Liable for nothing because emergency

3) arrives, unlocked, enters, farmer walks in and finds him and shoves him out

Farmer is liable for battery for throwing him back out into the blizzard

VINCENT V. LAKE ERIE: ordinary rules of property were suspended by forces beyond human control. Ship owners were responsible for damages their boat caused to dock.

DAMAGES: COMPENSATORY DAMAGES: an attempt to return the plaintiff to

his or her condition before the accidento Measures cost of harm in past and future termso Courts stick with single-judgment single-payment approacho Includes: past and future medical bills, sometimes non-

pecuniary damages such as pain and suffering and loss of consortium

SEFFERT V. LA TRANSIT: Damages only excessive if they, at first blush, shock the conscience and suggest passion, prejudice or corruption on the part of the jury.

MCDOUGAL V. GARBER: Cognitive awareness is a prerequisite to recovery for loss of enjoyment. Also held that loss of enjoyment of life should NOT be considered a separate damages category form pain and suffering

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EVENT OF DEATH:o Survival action: provides recovery of damages the deceased

could have obtained before death Lost income & medical expenses from time of injury to

time of death, maybe pain and sufferingo Wrongful death action: when tortious conduct is

responsible for victim’s death Usually economic loss to the beneficiaries

o Loss of life damages: seek to compensate a decedent for the loss of the value that the decedent would have placed on his or her own life

o Wrongful death of a child: ?????????????

PUNITIVE DAMAGES:

TAYLOR V. SUPERIOR COURT: punitive damages allowed where ∆ has been guilty of oppression, fraud, or malice: express or implied

EYOMA V.FALCO: jury can consider the patient's total disability and impairment in awarding loss of enjoyment damages.

COLLATERAL SOURCE RULE: plaintiffs in personally injury actions can still recover full damages for their injuries even if they’ve already received compensation through a collateral source such as medical insurance

ARAMBULA V. WELLS: collateral source rule applies to lost wages and gratuitous services. PP: Don’t want to punish people for other people helping them out. Also want to encourage insurance and private charitable assistance.

AUTOMOBILE LIABILITY INSURANCE: provides that insurer will cover amounts for which insured is held liable, and hire and pay for lawyer to defend in suit

STATE FARM V. CAMPBELL: 3 guidelines set out in Gore (1996) for measuring punitive damages in civil case.

o 1) the degree of reprehensibility of the ∆’s misconduct

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must be so reprehensible so as to warrant the imposition of further sanctions to achieve punishment and deterrence

o 2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award

rarely exceed a single-digit ratio, based on facts and circumstances of ∆’s conduct and harm to P.

o 3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases

not a substitute for the criminal process

GOVERNMENT LIABILITY: KKK act 1871: Every person who subjects another to a deprivation

of their rights shall be liable to the party injured § 1985(3): Created damages remedy for citizens deprived of

constitutional rights by persons acting in a conspiracy

IMMUNITIES: Only a violation of a clearly established righto Government immunityo Qualified immunityo Absolute immunity: usually officials performing judicial and

legislative functions TEST: Whether the act is a function normally performed

by a judge and whether the parties dealt with the judge in his judicial capacity

ON THE EXAM!! 1) Policy on enjoyment of life damages

o Know the positions and take a stance

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2) Intentional infliction of emotional distress in relation to gender and race cases

3) Title 7 employment discriminationo Title 9

Apply IIED to fact patterns 4) Products Liability 5) punitive

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