Torts OutlineFall 2013

I. INTRODUCTION TO TORTS1. What is a tort? A civil wrong not based in contract1) origins: British common law2) three types: intentional, negligence, strict liability3) Purpose:

Preserving the peace: we want to provide civil redress for people; forming alternative form of redress; allow vindication for people wronged by torts, even where damages are not at issue Compensation: designed to make the plaintiff whole; KEY; assumed to try to look at corresponding damages to injury; not necessarily efficient because of high transaction costs Alternative systems: workers comp, insurance Deterrence: deterring dangerous behavior (not clear that tort is the most efficient way of doing so) (ex: loss of chance doctrineafraid of doctors that avoid addressing someones chance of survival) If damages are unforeseeable, deterrence is limited: how can you deter someone from having an accident? Corrective Justice (Cardozo): Tort should function as a mechanism that allows individuals to sue their wrongdoer (vindication) Loss Distribution: tort is about allocating risks to parties who are in the best position to assume liability Strict liability: for parties who have more control, more wealth, spread costs equally and efficiently Which way of allocating loss generates the most overall, societal wealth? What is the most efficient use of funds? Accountability: a way to hold large inst. Actors, corps, parties for which individuals have very little ability to seek redress, to have a form of redress Limiting Govt: if we didnt have torts, we would need statutes to regulate every little thing; Tort as alternative to agency capture: when an agency has lobbying interest and have undue influence over a particular industry

II. NEGLIGENCEfailure to heed a duty of reasonable care owed to another that causes injury to that otherA. DUTY ELEMENT: Who Owes a Duty? 1. Overview of Negligence Elements / Injurya) 4 elements: DutyBreachCausationDamages need all four to objectively prove prima facie caseb) Injury: the first and most basic condition for viable tort claim; must prove that injury has suffered her the right kind of adverse effect-physical harms: bodily harms or destruction of tangible property-loss of wealth (incorrect drafting of will, forced unemployement)-emotional distress (very severe)-loss of chance of survival-loss of consortium2. General Duty : must take precautions of a reasonably prudent person acting under same circumstances to avoid causing harm to anothera) Requires plaintiff to establish that defendant owed her or a class of persons including her an obligation to take care not to cause the type of injury she has sufferedb) Duty can be established by reasonable foreseeability: if physical harm to a person is reasonably foreseeable, actor has a duty to take care to not cause such a harm to that personc) Privity rule: limited duty to contracting partiesabolished in MacPherson decision: duty owed is based on foreseeability of riskd) No affirmative duty to act but when you do act, you have a duty to do what a reasonable prudent person would do in like circumstances to avoid harm to anothere) extent of foreseeability in Mussivand v. David: carrier of VD has duty to disclose disease or take precautions against spreading infection to sexual partner AND to that partners spouse who contracts the disease: spouse is a foreseeable sexual partner (if direct partner is informed, liability shifts)3. Qualified Duties of Care Affirmative Duties, Intro to Premises Liabilitya) Affirmative Duty exists:-when actor creates risk

-special relationship with victim (employer-employee, school-school children, common carrier-carried)

-special relationship with tortfeasor

-Doctors and mental health professionals

-voluntary undertaking (hospitals providing care)

-Premises liability (Leffler): ownership creates liability; duty established by status (status can shift from invitee to trespasser, as in Leffler)Invitees: customer or client, mail carrier, garbage collector; there for the interest of the inviter-- duty to keep premises reasonably safe for ordinary useLicensees: on property with possessors consent, not for benefit of possessor (applies to social guest)--duty to warn and disclose non-obvious hazards of which the possessor are aware of or should be aware; refrain from willfully or wantonly harming the party (no duty to inspect or repair)Trespassers: one who enters onto a possessors property with no license or permission (implied or actual); does not need to be doing wrong/have intent to do wrongduty to avoid willfully and wantonly injuring them (willful and wanton = crossbows on lawn to deter)

**Trespassing children exception: Attractive nuisance doctrine1) dangerous condition on land2) owner has knowledge of children in vicinity that might enter3) owner knows condition would cause bodily harm4) expense of remedying condition is slight5) reasonable care is not taken (signage usually doesnt suffice)ex: digs a big hole and doesnt fill it back in

**Once trespasser is discovered, owner has duty to warn of nonobvious dangersShield rationale-wouldnt be fair to require Leffler to take steps to avoid injury that was not foreseeable 50% of jurisdiction recognizes 2 status categories: invitees/licensees v. trespasser (on land w. consent v. on land w.o. consent)30% recognize 3 status categories (above)20% no distinction (Rowland): Minority Ruling on the Collapsing of Invitee/Licensee/Trespasser Duties Owed: use fact based test4. Qualified Duties of Care Meaning and Significance of Duty, Pure Economic Losa) Pure economic loss: persons who lose existing wealth or expected income may stand to recover from another who has carelessly caused such a lossb) General rule: no duty of reasonable care to avoid causing pure economic losses to another EXCEPT:1) if parasitic to physical claim (economic loss as result of physical harm: medical bills, loss of future income)2) if parasitic to a property harm (car hits hotel, hotel closes, defendant owes for loss of business)3) accountants and attorneys4) intentional tortfraud, interference w. contract

B. BREACH ELEMENT: What do they have a duty to do?1. Breach and the Meanings of Negligencea) Little nnegligence in sense of careless course of conductb) Generally a matter of factjury questionc) standard of care is important: least onerous to most onerous scale:trespassersordinary careextraordinary carestrict liability2. The Reasonable Person; Customa) The reasonable person: objective standard applied to external conduct rather than state of mind/attitude;takes into account: -youth: tender years doctrineAppelhans v. McFall- angry old woman hit by 5 year old on bikeunder 7 years old: no liability; 7-14 years old: sliding scale subjective standardchildren under a certain age are unable to recognize/appreciate risk; there is a utility in letting youth make mistakes/learn; (**caveat: underage but engaging in adult activityadult ordinary care standard applies) -limited physical disabilitiesclear cut and basically undisputable-expertise: raises standardlawyers, doctors, accountantsdoesnt take into account:-mental incapacity, mental illness, clumsiness, old age, rashnessb) Custom: Compliance with custom is probative of reasonable care but not dispositive of reasonable care; does not carry the day; even if defendant acted in customary way, it will not establish that it lacks liability (TJ Hooper)

--Professional exception: Custom IS dispositive for doctors, lawyers, accountants; Johnson rule: no breach as a matter of law when a defendant acts in accordance with accepted professional practices; inverse: if not acting in accordance with accepted professional practices it is NOT AUTOMATICALLY a breach Adams factors (boy swinging huge wire is shocked): one way of determining how much industry standard weighs?1) was it a lawful exercise?2) were precautions taken?3) could the injury be foreseen?4) is there something particularly dangerous (a special danger) about this place? 5) was there a departure from custom?6) safer option v. burden to the defendant7) noticewas there a precedent of similar injuries?3. Balancing and Cost-Benefit AnalysisWhat if one could quantify the duty of reasonable care?Cost benefit analysis:-Hand formula: B__P (L): balancing the burden on the defendant against the probability of injury and the magnitude of the loss-Posner law and econ movement: probability is collapsed: value/cost of precautions v. value/cost of loss or harm; establishing specific dollar values; guard rail costs less than plaintiffs medical bills, defendant should pay those medical bills-Lord Reid (Bolton case): when burden is large and probability of harm is very small, no precautions are needed; when harm is very large, one must take ALL precautions

4. Res Ipsa LoquiturThe thing speaks for itselfBreach= Plaintiffs burden of proof burden of production AND burden of persuasionRes ipsa loquitur: burden shifting mechanism; allows case to move forward without initial production burden (b/c plaintiff may not have access to facts needed to please with specificity); applies where defendant had exclusive control of situation, and is in a significantly better position to present evidence needed; does not mean plaintiff has met burden of persuasion three factors:1) event must be of a kind that does not ordinarily occur in the absence of someones negligence2) must be caused by agency/instrumentality within exclusive control of defendant3) no voluntary action/contribution of plaintiffex: Byrne v. Boadle: sack of flour case, Ybarra v. Spangard (pl. under anesthesia for appendectomy, medical pros have all exclusive knowledge/control of the facts), Kambat v. St. Francis (lap band left in defendants abdomen)C. CAUSATION ELEMENT1. Introduction to Causation / But-For Test & Proof Problems; Loss of ChanceActual cause: when an actors carelessness actually causes injury to the other; but-for test: Skinner v. Squarewas presence of phantom zone on switch a but-for cause of Skinners electrocution and death? NOcircumstantial evidence did not establish only plausible explanation; plaintiffs failed to show burden of proof by preponderance of the evidenceLoss of Chance of Survival: Falcon v. Memorial Hospital -Trial ct. found for defendant, reasoning that because the 37% chance of survival was not more than 50%, defendant could not be liable for plaintiffs wrongful death. -Higher ct. changed outcome by altering the INJURY: not wrongful death, but loss of chance of survival-0% chance v. 37% chanceit is more likely than not that she lost a chance at survival-only applies to human life 98% of the time, loss of chance will arise from med mal cases Needs to decrease chance of survival by clear amount Must go to specific deterrence rational: dont want to have situations where people create Here, any number of things could have happened (vultures picking, nobody would have found him anyway, etc.)Multiple Necessary & Sufficient Causes, Burden ShiftingMultiple Necessary Causes: but-for testMcDonald v. Robinsoncar collision causes injury to third party: but for the concurrence of defendants separate negligence acts, the accident would not have happened and produced the injury-no need to be the singular cause of an injury to be found liable; its enough to be A causeMultiple Sufficient Causes: Substantial Factor test-but-for test is not used to determine actual causation-Risk of harm is not enough -plaintiff must show that this cause alone (among others) would be sufficient to cause totality of injury (Aldridge did not show that exposure to the chemical alone would be sufficient, so cannot move on to substantial factor test)-after determining cause is sufficient: actors carelessness must be a substantial factor in bringing about an injury in order to be deemed a legal cause of that injury. Carelessness will be deemed a substantial factor if it constitutes(i) a non-trivial necessary condition for the occurrence of the plaintiffs injury; or (ii) one of two or more forces that is each sufficient to bring about harm to anotherBurden Shifting- Summers v. Tice (two hunters carelessly shoot a third hunter)Alternative liability rule:1) Each party is held independently2) Each party is held prima facie liable3) Each is permitted to break the deadlockpresent evidence that he or the other was more likely to cause injury*Only applies when:1) Each of two or more parties have been independently and identically careless towards the plaintiff2) Carelessness of one but not the other could have caused injury 3) No suggestions tat there is any other tortfeasor involved 4) Plaintiff is absent of faultLike res ipsathis rule stems from the dear that the faultless victim will be unable to prove cause Introduction to Proximate Cause Foreseeable RisksProximate Cause- is the injury too attenuated to make a party liable?Evolution of prox cause rules/tests: 1. Natural and Ordinary Test: About physical proximity- very limiting and quickly overruled- but set the groundwork for future conceptsRyan Case- it was natural and ordinary (and therefore proximate) for a fire to spread to one place (the shed), but NOT a proximate cause when the fire spread to a second place (in this case- the plaintiffs house)2. Directness Test- Polemis (opposite of the foreseeability test)Not having foreseeability is irrelevant- if Ds careless acts directly caused Ps injury, then D is liable3. Foreseeability-Union Pump v Allbriton- Pump manued by D caught on fire at Ds workplace. Put out fire and a few hrs later P went w coworker to go check another valve. Took a faster but less safe route to the valve, on the way back P slipped on water from putting out the fire and fell. P sued D bc she said w/o the fire, there would be no injury. Court said you need cause in fact AND foreseeability, forces were not still in play, circumstances were too remote- no prox cause.--Was it reasonably foreseeable that Ds carelessness would cause Ps injury?--Norm, expectation- what the defendant is expected to see, and not what they defendant actually sees--Setting an objective standard- an objective level of reasonable foreseeabilityWhat is reasonably foreseeable? -What one is expected to see, not what one actually perceives-objective level of anticipation4. Scope of Risk TestIs the injury that befell the plaintiff amongst the types of harms that the defendant risked by virtue of acting carelessly towards the plaintiff? Jolley v. Sutton London Borough Council (boy injured fixing abandoned boat)Proximate Cause Continued Superseding CauseBL RULE: where intervening forces are individual actions distinct from natural response or reaction to the situations caused by defendant, proximate cause will most likely limit defendants liability(Superseding cause) Pollard v. Oklahoma (boy collected powder in cans): independent intervening acts of Millard and his parents rendered the original negligent act of the defendant to only a remote cause of plaintiffs injury(Not superseding cause) Clark v. E.I. DuPont (kids find glycerin in a graveyard): distinct from Pollard- no work or effort to create new danger; injury naturally stemmed from original dangerous act (negl. of E.I. DuPonts agent)*Proximate cause is not tightly linked to temporal proximity between act and intervening causeYes-Sup. CauseNot Sup cause

1) Is the third party breach second in time?2) Is it a new form of mischief; transformative; independent; breaks chain of natural events; acts of God1) 2nd act is by plaintiff (theres a different way to deal with pl.s fault2) forces set in motion by defendants careless act-inevitable consequences (responses/reactions)-rescue-medical malpractice-involuntary/kneejerk reaction

Proximate Cause Continued Palsgraf

Cardozo switches focus to duty from causation:-Zone of Danger Test: the breach of the duty of care proven by plaintiff must be a breach of duty owed to pl. or to class of persons to which she belongs-Cardozos relationality test: is victim in Palsgraf a foreseeable victimno, out of danger zoneAndrew dissent: there should be no relational aspect to duty; look to proximate cause-recovery must comport with common sense-practical politics-very uncomfortable reversing a jurys decision

D. (An interlude) STATUTORY SUPPLEMENTS TO NEGLIGENCE LAWNegligence Per Se [Breach per se]- permits plaintiff to point to the standard of care outlined by the stature, regardless of how he or she would fare under ordinary standard of careTo invoke a statutory standard of care:1) statute must protect this class of people2) statute must protect this type of injury3) statute must have clear standards of expected conduct-Effect of violating a statutory standard of care: presumption of breach of duty of care-Compliance with statute does not necessarily mean that duty has not been breached (one can still be careless)-Weighs heavily in favor of defendant-Like customprobative not dispositive-still must prove causationWhy does negligence per se exist?1) giving deference to political branches of government (separation of powers)2) reasonable person will comply with the law: adherence to norm3) efficiency4) fairness: reasonable reliance on rules of conduct laid out in advanceExceptions for negligence per se:1) young children (unaware of law, tender years)2) if there is an inability to comply3) if it is more unreasonable or unsafe to comply with the lawWrongful Death ActsTwo types of actions: policy purposes: deterrence and accountabilityWrongful death actionderivative claim of decedents-benefits decedents next of kin: must prove all 4 elements of negligence to decedent, THEN prove this negligence had direct cause of next of kins loss-deals with economic dependence: child care, elderly care, pension, wages from the deceaseds job-usually only allows for pecuniary damagesdamages for mental suffering not recoverable (Nelson v. Dolanmother sues for emotional damage after sons death)-loss of consortium- money for things like rent, education costs, sometimes parental guidance, etc

Survival Actiondecedents harms prior to death- brought by administrator of decedents estate-purpose is to vindicate rights of decedent: had decedent survives, this would be part of action- pain and suffering (even if only 5 minutes as in Nelson v. Dolanfear of impending doom) and medical costs up to time of death, funeral costsall recoverableE. DEFENSES: burden shifts to defendant to engage in affirmative defenseContributory Negligence vs. Comparative ResponsibilityContributory Negligence- applies to a few states: any fault shown by plaintiff will negate its ability to recover ANYTHINGassessed by standard of ordinary care**Last clear chance is exception to contributory negligence: if defendant has the last clear chance to avoid causing injury and doesnt, no contributory negligence defense will be availableComparative Faultthree modelsModified/Partial- applies to 2/3 of jurisdictions: bars plaintiff from recovery if plaintiff is found more than 50% negligentPure- 1/3 of jurisdictions: plaintiff recovers whatever percentage he or she is responsible forDivided: damages are divided by number of parties evenly**Apportionment is usually the jurys responsibility: jury instructions are therefore very important (policy choices often embedded)Assumption of Risk: only for negligence claims and strict liability- completely bars plaintiff from recovery-balancing individual liberty/interest against liability of torts-if an action is unreasonable, one may make assumption of risk argument AND a contributory fault argument-if an action in reasonable, assumption of risk is still available as defenseExpress Assumption of RiskImplied Assumption of Risk

1) Did plaintiff enter contract (something written) voluntarily? (no duress)2) Did plaintiff understand contract?1) Did plaintiff engage in conduct voluntarily?2) Did plaintiff understand the risk?

Tunkl Factors to determine type of transaction in which exculpatory provisions (express assumption of risk) will be invalid:-business of a type generally thought suitable for public regulation-party engaged in service of great importance or practical necessity to public-party holds itself out as willing to perform public service-decisive advantage in bargaining strength-makes no provision whereby purchaser may pay a fee to protect against negligenceKnight v. Jewett identifies: MINORITY RULEPrimary Assumption of Risk: identifies special rule of no duty under which participants in a certain kind of activity (typically a recreational sport) by virtue of decision to participate, are owed no duty of reasonable care by other participants--NOT REALLY ASSUMPTION OF RISK, JUST A HOLE IN DUTY RECOGNIZED BY A MINORITY OF JURISDICTIONS

Secondary Assumption of Risk (IMPLIED ASSUMPTION OF RISK): refers to affirmative defense discussed in Smollett v. Skayting (no guard rails at the roller rink)-voluntary choice, aware of risk-American individualistic understanding-deters plaintiff from engaging in risky behaviorStatutes of Limitation & ReposeStatutes of Limitation: triggered by injury (subject to inquiry rule)*most jurisdictions adopt discovery rule: statute of limitations does not begin until plaintiff discovers through reasonable diligence that he or she suffered a compensable injury: Ranney v. Parawax- clock starts when P knows there is a compensable inquiry link to legal claim

Statutes of Repose: triggered by date product is manufactured or purchased or by defendants act- can run out even before injury has manifested in a plaintiff, BUT gives predictability and stability to businesses being sued

F. REMEDIES AT LAW: DAMAGESCompensatory Damages: attempting to make the person wholeIn personal injury: past, present, anticipatory-economic losses: medical expenses, lost earnings, repair costs-non-economic losses: pain and suffering (intangible losses)--emotional distress--loss of enjoyment of life*note: attorneys fees are not separated in apportioning damages1) Egg Shell Skull Principle: tortfeasor takes his victim as he finds him; liable for foreseeable types of harms (and damages); extent of harm that is caused by initial harm will not bar P from recoverySmith v. Leech Brain & Co: plaintiff husband dies from cancer caused by a lip burn that he obtained while working for defendant; negligent work settings caused molten metal to splatter on his lip--case falls within egg shell skull principle, and thus defendant held liable for all damages leading up to death as ultimate injury 2) Compensatory damages is almost always a question for the jury or trier of fact:Kenton v. Hyatt Hotels Corp: judge should not reconsider the damages awarded by trier of fact unless it is so inaccurate that it shocks the conscious3) Duty to Mitigate: P has duty to reasonably mitigate his/her injury; objective standard: does not take economic inequality into account (a woman who cannot afford medication that a reasonably prudent person would take to mitigate her injury will be said to have failed the reasonable person test)4) Collateral Source Rule: generally damages are not reduced because the person has received benefits from another source (if Ps medical expenses were covered by insurance, such evidence cannot be presented)Punitive DamagesIn general: awarded in dignitary and intentional tort actions; for negligence, must be more than garden variety Standard for punitive damages in negligence cases: 1) Party knew or had reason to believe that his/her act of negligence was about to inflict injury (wanton disregard)and2) that he or she continued his/her course of conduct with conscious indifference to the consequences (deliberate indifference)Mathias v. Accor Economy Lodging, Inc: bed bug case: punitive damages are appropriate for the policy reason of deterrence General rules set out by Posner for awarding punitive damages: if conduct1) is not likely to be prosecuted criminally2) causes minor injuries (3) poses serious harms that may be difficult to detect4) is undertaken by pernicious defendantsWhat is excessive?Tort Reform: robust review of punitive damages1) statutory fixes: caps2) constitutional limits: 14th amendment due process (D has a right not to be subject to excessive punitive damages) Joint Liability & ContributionDerivatively imposed liability (blanket term): someone other than actor that caused the tort is held liable Vicarious liability (respondiat superior) is most common Partners on a joint venture Joint and several liability 3rd party insurance

Concept of agency: when should superiors be responsible for agents acting on --other behalf? a) parents can be held liable for action of children if child is acting as parents agent b) usually an employment issue: respondiat superior (distinct from negligent hiring/supervising)c) Partners in a joint venture: common purpose between two parties: need to show mutual right to controld) Parent authority (idea of implied respondiat superior): even if acts were outside of scope of employment--often applies to people in uniform: off duty cops, security guards, food service workerse) Intentional torts: not usually subject to resp. sup because its is outside of scope, except: --if force is authorized by an employer--friction is encouraged--business employee is in service of employer for business purposef) Independent Contractors: responsible for their own acts, general not going to have actions attributed to hired employer EXCEPT: --if acting as an employee--if engaged in an inherently dangerous activityTaber v. MaineNavy service man gets drunk on base and gets into car accident while driving off base; Was Maine acting in line of duty when he engaged in negligent conduct? Yes, respondiat superior applies and govt is vicariously liable (ct. distinguished between a detour and a frolic, resp. sup. applies to former but not latter)Two separate tests for vicarious liability/respondiat superior:1) Does conduct of defendant benefit his/her employee? Whether or not action was furthering the monetary or institutional interests of employer, whether or not employer asked them to engage in conduct; Narrow2) Is conduct of defendant characteristic of employment? (more modern approach, Taber v. Maine): is it part of what the job entails? Broad

Joint Liability and Contribution: Contribution: permits tortfeasor whos paid more than fair share of damages to indemnify another tortfeasor stems from policy concern of unjust enrichmentJoint and Several liability: full damages amount is paid by at least one tortfeasor if the other is insolvent; ex: P sues 2 parties for 100K, each apportioned to pay 50k, but party B is insolvent. Party A needs to pay P full 100k.Presence of joint and several liability does not foreclose comparative fault III. INTENTIONAL AND DIGNITARY TORTSACT - INTENT - CAUSATIONA. BATTERY & ASSAULT1. Battery: Prima Facie Elements1) Act (volitional movement)2) intent to cause contact (no need for intent to harm or offend) a. DIRECT INTENT TO BRING ABOUT CONTACT orb. OBJECTIVE KNOWLEDGE THAT SUCH CONTACT IS SUBSTANTIALLY CERTAIN TO BE PRODUCED]3) causation (did act cause the contact; contact with object may be enough, but there much be physical contact**doctrine of extended personality: battery can be established by contact with anything so connected with the body as to be customarily regarded as part of the others person (cane, hat, a plate, pulling a chair out from underneath a person)**contact includes that which interferes with reasonable sense of personal dignity; if someone asks the other not to touch in a certain way, it is reasonable to respect that others wishes2. Assault: Prima Facie Elements1) Act (volitional, can be verbal)2) Intent to cause plaintiff apprehension of imminent harmful or offensive contact (present, not future threat)3) If act actually causes plaintiff to reasonably apprehend such contact (actual not potential)Justifications to intentional torts: burden of proof falls on the defendant; any defense not raised is waived; comparative fault will not come up in a pure torts caseConsent: analog to assumption of risk; defendant is not liable for otherwise tortious acts if plaintiff consented to defendants act (express or implied)--scope of consent: consent induced by fraud (to essential matter of consent) or duress will not be valid--general implied consent: inferred from circumstances (reasonable person)--implied by law: emergency situations--Koffman v. Garrett: 13 yr. old tackled by football coach; rule violations are not probative, but not dispositive of consent (like custom), they do not set scope of consent as a matter of law--OBrien v. Cunard: woman on line for vaccinations sues doctor for batteryclaims she never consented; If a mistaken inference of consent arises from conduct of plaintiff, a consent defense may be recognized*DOCTRINE*: consent as a defense if D actually and reasonably believed that P consented to the conductSelf Defense: unique to intentional torts; proportional response--when a person actually and reasonably believes that he/she is about to be attacked, he or she has a right to defend him/herself from bodily harm--difficult to use against defamation and IIED--NECESSITY to protect oneself--only for prevention of tort, never for retaliation--Battered women syndrome: outlierDefense and Recapture of Property--Katco v. Briney: spring gun case: Privilege to defend property does NOT weigh out harm to human life; property < human life and limb--distinction: protecting dwelling that you and your family inhabit, right to defend person is there--key: proportionality of harm--Recovery of chattels privilege: at your own [legal] peril

3. False imprisonment: intentionally confining someone against their will4. Intentional Infliction of Emotional Distress: intentionally or recklessly causing another to suffer sever emotional distress through outrageous contactIntent RevisitedUnintended Consequences & Knowledge Vosburg v. Putney: boy kicks schoolmate in the kneed while at school during class hours; causes plaintiff school mate to be permanently lame; defendant boy claims he did not intend to cause injury--Court holds that the requisite intent for battery is not to cause injury or harm, but merely intent to cause unlawful contact--also confirms egg shell skull rule: tortfeasor responsible for all injuries caused even if intent of extent of injury is not there Cole v. Hibberd: defendant kicked friend playfully in the rear: ISSUE: is defendant liable for battery if she did not intend to harm plaintiff? --Court holds that intent to cause contact, not intent to injury, constitutes battery--Defendants conduct would be considered offensive to a reasonable sense of personal dignity--In general: to satisfy intent element in intentional torts, there must be an intent to bring about offensive contact or an intent to act with knowledge that offensive contact is substantially certain to be producedTransferred Intent: can be applied to Battery and Assault In re White: defendant white intended to shoot William Tipton but missed and hit victim instead; ISSUE: was Whites conduct intentional toward victim if defendant did not actually intend to shoot him--Court held White liable because of DOCTRINE OF TRANSFERRED INTENT: although defendant must intend a contact with another person that is harmful or offensive, the individual who actually suffers the contact need not be the person defendant intended to contact--applies to assault and battery but not usually for property torts

B. INFLICTION OF EMOTIONAL DISTRESSIntentional Infliction of Emotional Distress: Defendant engages in cruel mistreatment of plaintiff: abominable conduct towards often vulnerable party Do not need threat of imminent harm Manifestation of physical harm is not necessary Paradox: loosely defined to fill in gaps, but worrisome to judges because of notice element PRIMA FACIE CASE (really horrific facts) Act: extreme, outrageous conduct (beyond all bounds of decency) Intent to cause plaintiff to suffer severe emotional distress OR should have known that plaintiff would suffer from emotional distress as a result Injury: Severe emotional distress must occur Dickens v. Puryear: defendant lured plaintiff into remote area and brought along four people to intimidate and threaten the plaintiff using handcuffs, nightsticks; threatened to kill and castrate; cut off his hair; Plaintiff alleged IIED by defendant: that he suffered severe, permanent mental and emotional distress AND physical injury to his nerves and nervous system/other physical ailments Monetary loss: inability to work ISSUE: does evidence demonstrate that plaintiff suffered IIED (beyond assault and battery)? HOLD: yes: future threats are actionable by IIED; defendants conduct was willful, malicious, calculated, deliberate, purposeful; and the conduct CAUSED plaintiffs injury Littlefield v. McGuffey: rental agreement broken with plaintiff by racist landlord, he continued to harass and threaten her, her sister, and her boyfriend; ct. held that evidence was sufficient to establish IIED ELEMENTS OF IIED AFFIRMED: Conduct must be extremely outrageous Actor must intend to cause emotional distress Conduct must ACTUALLY CAUSE emotional distress (physical manifestation of emotional distress is not required) Limitations First amendment: public figures subject to different standards (less able to make use of IIEDsubject to more public scrutiny) Private funerals: speech that could be deemed offensive or outrageous might be someone exercising freedom of speech (Snyder v. Phelps: funeral of soldier, politically offensive language is not outrageous)Negligent Infliction of Emotional Distress BL Rule: there is no duty to avoid emotional distress of another UNLESS Intentional Parasitic to physical injury Zone of danger test (2 versions): defendant is subject to a duty to avoid emotional harms arising from a risk of imminent physical harm to the defendant; majority rule (Robb): need a physical manifestation of emotional distress; 1. Defendants carelessness places plaintiff at risk of imminent physical harm2. Plaintiffs has contemporaneous awareness of the peril that causes her to fear for her own safety3. Fright actually causes physical manifestations that would be elements of damages Use zone of danger test to determine DUTY, then prove other elements of negligence, including an injury that is VERY severe emotional distress Minority/Federal rule (Gottshall): same first two parts of Robb test; no physical manifestation required Certain special relationships: parents and guardians over children, morticians to families, doctors to families of patients Beul: guardian/child relationship creates duty to avoid emotional harms because their acts can likely cause emotional distress Restatement 3rd sect. 46placement in immediate danger of bodily harm or it occurs Bystanders can recover if Plaintiff and person physically injured were closely related If plaintiff was present at scene of the accident Plaintiff personally observes/perceives harm of related party (not heard) Impact rule: filler for fake claims; difficult to prove System has a duty to address these problems Medical advancesIV. STRICT LIABILITY/ LIABILITY WITHOUT FAULTA. PROPERTY TORTS: relief sought is often injunctive Trespass: actor causes tangible invasion of the land that is lawfully possessed by another1) INVASION: Defendant interferes with plaintiffs right of exclusive possession of landa. Land=on, above, or below the surface; overhead wires and tunnels2) Intent to perform an act that interferes with that exclusive right; voluntary entrancea. does not need to know that land is possessed by anotherb. specific intent not requiredc. mistake is not a defense3) Causation: invasion by defendants act actually caused exclusive possession of owner to be violated; damages are presumeddoes not need to be shown*Is the act volitional? No need for intent to harm*Trespasser can be liable even if he or she has behaved reasonably (Burns Philp)*Notice or knowledge of trespass is not an element of prima facie case (Burns Philp)Injuries Parasitic to Trespass: are personal injuries compensable? Who is liable? --Special subset of claimants can recover without showing carelessness by defendant if injury is a product of trespass (Kopka v. Bell Tel. Co.unauthorized digging led to homeowner tripping in hole and injuring himself)Why bring under trespass rather than negligence?--easier, less elements, more straightforwardEntrant may become a trespasser by moving beyond scope of consent (Copeland v. Hubbardsneaky cat camera case):1) Was consent voluntarily given? (no material fraud, duress, or coercion)2) Scopea. Physical: Lefflerb. Temporal: time limitsc. Purpose: what did possessor offer entrance for/to do?Intermeddling: general term for any time physical damage to property exists, conversion is most common

Wrongful acquisition: acquiring property through fraud

Necessity & NuisanceNECESSITY: emergencies, no time for consent and withholding consent under those scenarios would be crazy; **as soon as necessity is terminated, so does the right to be on the persons property**if on a property, legally by necessity, if damage occurs to the property while there, you will be responsible for such damageNUISANCE: a continuing and substantial interference with possessors use and enjoyment of his or her land (beyond annoying)--both parties may be involved in lawful, but incompatible activities Private Nuisance: must be possessor of land Substantial: objective: what is offensive to average person in the community Unreasonable: severity of injury; does injury outweigh utility of Ds conduct? Public nuisance: govt has standing and will bring suit Interference with health, safety, and property rights of the entire community*compliance with law is probative but not dispositive*for D to win against injunctive relief: must show that Ds injunction presents extreme hardship that outweighs Ps enjoyment and use of property*economic argument will not usually outweigh over use and enjoyment of land*Factors can be used for public and private nuisancein relation to pub: the only parties that have standing are govt and municipalities*Coming to the nuisance is not dispositivemust look to overall character and expectations of enjoyment of propertyB. ULTRAHAZARDOUS ACTIVITIES Certain types of harm are subject to strict liability: no inquiry into fault PRIMA FACIE ELEMENTS OF STRICT LIABILITY Absolute duty on part of D to make condition safe D has failed to make condition safe Ds conduct was actual and proximate cause of injury Generally applied to Keeping of wild animals (Domesticated animals known to be dangerous treated as wild animals) Use of explosives and/or radioactive materials Keeping of reservoirs IN GENERAL: Ultrahazardous activitiy involves substantial risk of serious harm to person or property no matter how much care is exercised (fireworks) Restatement factors to determine whether an activity is abnormally dangerous: Existence of a high degree of risk of some harm to the person, land or chattel of others (probability) Likelihood that the harm that results from it will be great (scale) Inability to eliminate the risk by the exercise of reasonable care Extent to which the activity is not a matter of common usage Inappropriateness of the activity to the place where it is carried on Extent to which its value to the community is outweighed by its dangerous attributes (dont want to deter socially beneficial activities) Defenses: Statutes of limitations Govt immunity test Assumption of riskV. PRODUCTS LIABILITY

Traynors strict products liability testapplies to tangible products Place a product on the market Product has a defect Manufacturer knows product will be used without inspection Product causes injury during its normal use Traynors arguments: MacPherson: warranty of safety is not contractual, but a free standing concept Policy arguments: which party is in most advantageous position to reduce harm to human life and limb? Procedural fairness: negligence is much too difficult to prove (what about experts?still very difficult for injured party to prove negl.) Compensation: manufacture in better position to spread the loss Consumer protection: consumer has fundamental right to safety General rule: Manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being having been used in the way it was intended Privity is NOT requiredDesign defect: risk v. utility test: NY is most common 1. utility of design to public2. utility of design to plaintiff3. likelihood of harm associated with the design4. availability of safer design5. feasibility of producing safer design6. what is consumers knowledge of designWarning defect: adequate to warn party: was warning effective?1. Specificity2. Proper placement3. Large/visible enough4. In the right languagesDEFENSES: Assumption of risk: complete Causation (usually only form of redress for manufacturing defect)