torts outline weisberg fall 2011

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TORTS OUTLINE Weisberg FALL 2011 What is a tort? Poethics, Vosburg, 35n2; Brown v. Kendall,7; Vincent v. Lake Erie, 123; Greenman, 760. a) Resolving the disconnect between “should” and “was”– what value is served by Osterlind? Palsgraf? Hollaris? Hynes? Vosburg? Brown? Vincent? Greenman? 2) The development of liability based on fault: a) Brown v. Kendall-2 dogs fighting. D lifted stick to separate dogs and hit P. D not liable. i) If D actions were unintentional and he acted with due care, not liable. ii) The burden of proof is on the P to show that the D didn’t act w/ necessary care or that he did with intent 3) The Intentional Torts Garratt, 17; Talmage, 28; I de S, 37; Western Union v. Hill, 38; Hardy v. LaBelle, 46; Bonkowski, 116; Dougherty, 68; Glidden, 74. a) INTENTIONAL TORTS A.PRIMA FACIE CASE To establish a prima facie case of intentional tort, P must prove: i) Act by Defendant-the act required is a volitional movement by D. ii) Intent- Must intend the act that amounts to or produces the unlawful invasion and the intrusion must be the virtually inevitable consequence of the willful act. (1) Specific intent-the goal in acting is to bring about specific consequences (2) General intent-the actor knows w/ substantial certainty that these consequences will result (3) Transferred Intent-intent transfers to the tort actually committed or to the person actually injured (a) Only applies where the intended tort and the actual tort is assault, battery, false imprisonment, trespass to land, or trespass to chattel (4) Talmadge v Smith-D threw stick at 1 boy and hit another. Liable. Transferred intent. (a) Rule: transferred intent cannot be claimed if the original intent is fulfilled The fact that the injury resulted to a party other than was intended does not relieve the defendant from responsibility. (b) It is the intent to bring about the consequences of the tort and not injury. Thus, a person may be liable for unintended injuries from the consequences of the tort. (5) Vosburg v Putney-schoolboy kicked another lightly boy didn’t feel it. Prior condition lit up and causes $2500 injuries. (a) Motive impels a person to achieve a result. Intent denotes the purpose to use a particular means to cause that result. Therefore, even if a person acts w/o a hostile motive or desire to harm, or even when he is seeking to aid the P, he may be liable. (b) Mistake does not absolve a person from being held liable for intentional tort. 1

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TORTS OUTLINE Weisberg FALL 2011 What is a tort? Poethics, Vosburg, 35n2; Brown v. Kendall,7; Vincent v. Lake Erie, 123; Greenman, 760. a) Resolving the disconnect between should and was what value is served by Osterlind? Palsgraf? Hollaris? Hynes? Vosburg? Brown? Vincent? Greenman? 2) The development of liability based on fault: a) Brown v. Kendall-2 dogs fighting. D lifted stick to separate dogs and hit P. D not liable. i) If D actions were unintentional and he acted with due care, not liable. ii) The burden of proof is on the P to show that the D didnt act w/ necessary care or that he did with intent 3) The Intentional Torts Garratt, 17; Talmage, 28; I de S, 37; Western Union v. Hill, 38; Hardy v. LaBelle, 46; Bonkowski, 116; Dougherty, 68; Glidden, 74. a) INTENTIONAL TORTS A.PRIMA FACIE CASE To establish a prima facie case of intentional tort, P must prove: i) Act by Defendant-the act required is a volitional movement by D. ii) Intent- Must intend the act that amounts to or produces the unlawful invasion and the intrusion must be the virtually inevitable consequence of the willful act. (1) Specific intent-the goal in acting is to bring about specific consequences (2) General intent-the actor knows w/ substantial certainty that these consequences will result (3) Transferred Intent-intent transfers to the tort actually committed or to the person actually injured (a) Only applies where the intended tort and the actual tort is assault, battery, false imprisonment, trespass to land, or trespass to chattel (4) Talmadge v Smith-D threw stick at 1 boy and hit another. Liable. Transferred intent. (a) Rule: transferred intent cannot be claimed if the original intent is fulfilled The fact that the injury resulted to a party other than was intended does not relieve the defendant from responsibility. (b) It is the intent to bring about the consequences of the tort and not injury. Thus, a person may be liable for unintended injuries from the consequences of the tort. (5) Vosburg v Putney-schoolboy kicked another lightly boy didnt feel it. Prior condition lit up and causes $2500 injuries. (a) Motive impels a person to achieve a result. Intent denotes the purpose to use a particular means to cause that result. Therefore, even if a person acts w/o a hostile motive or desire to harm, or even when he is seeking to aid the P, he may be liable. (b) Mistake does not absolve a person from being held liable for intentional tort. (6) Ranson v. Kitner-killed dog mistaken for a wolf and held liable (a) Everyone is capable of intent in intentional torts-even minors and incompetents. (b) Did P have to prove if D was shooting at his chattel? Plaintiff does not have to disprove the good faith of D P just has to show substantial certainty that D meant to shoot his animal - Invasion of protected interest- interest here is chattel - (In this case there was no counter-showing, he meant to shoot a wolf, and that was a good thing). A benign purpose does not negate (c) Reasonable mistake was not a defense for the trespass iii) Causation-the Ds conduct must have been a substantial factor in bringing about the injury. (1) *the courts are more willing to extend the chain of causation here than by negligence.* (2) Garratt v. Dailey-child pulled chair out from old woman and held liable. b) Battery- intentional infliction of a harmful bodily contact upon another. contact to the P which results indirectly or directly in a harmful contact Not all purposeful touchings constitute an Intentional tort, while some benign touchings do, and not all careless acts constitute Negligence. i) Restatement elements: (1) Intention of (a) harmful or offensive contact (to a person of ordinary sensibilities) (offensive if P hasnt consented to it) (b) apprehension to other or a third person (c) knowledge substantial certainty (i) Garrett v. Dailey 1955 (5 yr. old removed chair as old lady was sitting down, not necessarily malice or prank but knew with substantial certainty). (2) contact is not consented to by the other or the others consent thereto is procured by fraud or duress (3) the contact is not otherwise privileged. Intent requires that the act must be done for the purpose of causing the contact or apprehension. ii) Not every Battery entails assault- some courts say this- ex: sleeping beauty hypothetical, kiss while sleeping. iii) Apprhension is not necessary-a person may recover for battery even though he is not conscious of the contact when it occurs iv) DO not need actual damages , can recover at least nominal damages c) Assault i) Elements: An assault is an unlawful attempt to commit a battery, in an intention unlawful offer to touch the person in a rude/angry manner and in circumstances to make the P think that battery was likely, along with the ability to commit battery if not prevented. Can also be offensive language, threatening -Reasonable apprehension of an immediate contact (1) Requirement of Reasonableness- The apprehension of contact has to be reasonable-they use the reasonable person test (a) Courts will not protect against exaggerated fears unless the D knew of the unreasonable fear and uses it to put the P in apprehension. (2) Apprehension is not the same as fear/intimidation. Apprehension is expectation. So one can reasonably apprehend an immediate contact even though he thinks he can defend himself. (3) In contrast to battery, the person must be aware of the Ds act for it to be apprehension. (4) Person does not need to know the identity of the person, only that theres an unpermitted force being directed at him. (5) If the words are accompanied by an overt act, clenching fist, then may be assault. Additionally, words may negate as assault if they make unreasonable any apprehension of imminent touching. Conditional threats can create an assault (point gun $ or life) (6) Immediate- apprehension for immediate contact, threats for the future do not count, and no assault if D is too far away or preparing for future assault (7) Even if no harm- I de S et ux v. W de S -Assizes 1348 (even if no harm done, D threw hatchet at P immediate

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apprehension of contract- want to dissuade public from attempting to hurt anyone) (8) Must have present ability- Western Union Telegraph Co. v. Hill 1933 (Let me pet/love you and fix your clock case). An assault is an unlawful attempt to commit a battery, in an intention unlawful offer to touch the person in a rude/angry manner and in circumstances to make the P think that battery was likely, along with the ability to commit battery if not prevented. (9) No requirement of damages-dont need to prove damages to make out prima facie case. P may recover nominal damages. If malice, punitive damages will be awarded d) Trespass to Land i) Elements: (1) Every unauthorized entry upon anothers land qualifies as a trespass, regardless of the degree of damage done in the process. dont have to show a purpose or motive to step on the land unlawfully. Certainty of intention to touch. P needs to show that D knew with at least substantial certainty that his action would result in what turned out to be the tort of trespass to land- doesnt matter if that is taken up mistakenly. (2) An act of physical invasion of Ps real property by the D (3) Protecting the interest of exclusive possession of realty, so just need a physical invasion (a) D doesnt need to enter on the land-could throw rocks, push pp on (b) Lawful right of entry expires (4) If no physical object enters the land, its nuisance or strict liability ii) Intent by the D to bring about a physical invasion (1) Dont need intent to trespass-intent to enter the land is sufficient iii) Causation-need to show that Ds act legally caused the physical invasion. iv) Land is the surface, air space, and subterranean to the depth and height that the P makes beneficial use of such space. (1) Every unprivileged entry onto the land of another is trespass regardless of the amount of damages. v) A/o in actual or constructive possession of land may bring an action for trespass. (1) Dougherty v. Stepp 1835 (D surveyed Ps land, but the entry upon anothers land without authorization always qualifies as a trespass and always infers some damages.) (2) A reasonable mistake is no defense to trespass. (a) Serota v. M. & M.Utilities Inc. 1967 (oil distributor filled already-full oil tank which then spilled on Ps property) Trespass to be liable need not intent or expect the damage of his intrusion (could be benign) e) Trespass to Chattels i) Elements: 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. (1) An act of the D interferes with Ps right of possession in the chattel a. Protects a persons right to possess his chattels, so any interference will suffice. Usually 2 forms: (a) Intermeddling-directly damaging Ps chattels (b) Dispossession-depriving P of his lawful right to possession of his chattel (2) Intent to perform the act bringing about the interference (a) Intent to do the act is sufficient-dont need to prove intent to trespass (b) Mistake as to the lawfulness of Ds actions is no defense (mistaken belief that D owned the chattel) (3) Causation (a) The interference with the chattel must have been caused by the Ds act or set into motion by the D (4) Damages (a) Chattel owner must prove more than nominal damages-there needs to be actual damages (b) By dispossession, the loss of the chattel is deemed to be an actual harm. (i) Glidden v. Szybiak 1949 (girl pulls on dogs ears but no trespass) 1. Unlike trespass to land, trespass to chattels does not entitle one to nominal damages. Some sort of damage must result from the interference because sufficient legal protection of the security of possession of a chattel is found in the privilege to use reasonable force to maintain possession. ???? (5) Liability without intent (good-faith mistake)- When one damages another, he is liable for that damage, even if he would not have committed the act causing the damage but for a good faith but mistaken belief. The relationship between liability and intent is such that even if one did not intend to do something, they can still be held liable for it. (a) Ranson v. Kitner 1889 (shot dog that looked like a wolf in good faith) f) False Imprisonment Elements: restrictions or detention on liberty of movement, restrictions that act on our will, make us feel that we dont have our liberty, that we cant go somewhere freely. contemporaneous consciousness Damages are on incursion on your liberty of movement. Harm doesnt have to be physical. (1) Prima Facie Case (a) An act or omission on the part of D that confines or restrains the P (b) To a bounded area (c) Intent (d) causation (2) Sufficient methods of confinement or restraint include: (3) Physical barriers (a) Big Town Nursing Home v Newman-Man kept in home against his will. Verdict for him. (4) Physical force- Can be directed at P, close family member, against Ps property a. P does not have to resist the force and does not have to test the threat when the (5) D has the apparent ability to carry it out. c. Threats of force-P, family member, property d. Failure to release ii) If P came under Ds control lawfully, an affirmative duty is placed on the D to release him at the right time, and if doesnt, it is false imprisonment. iii) Invalid use of legal authority (1) Shoplifting detentions are privileged if: (a) There is reasonable belief of theft (b) Detention must be conducted in a reasonable manner and cant use deadly force (c) Detention can only be for a reasonable amount of time and for the purposes of making an investigation. (brief)

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(2) Insufficient Methods of Confinement or Restraint: (a) Moral pressure (b) Future threats (c) Time of Confinement-time is irrelevant, except for the purpose of calculating damages (d) P must be aware of the confinement (i) Exception: if the P is injured by the confinement (e) A bounded area is one where the Ps freedom of movement in all directions is limited. The area will not be characterized as bounded if there is a reasonable means of escape of which the P is aware. iv) No need to prove actual damages. If malice, then may get punitive. (1) an intentional confinement of another when the person is aware of the confinement (a) (Hardy v. LaBelles Distributing Co.) 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 ones will to be actionable. (P accussed of shoplifting, said would have stayed anyways, not against will). v) Privileges: Storekeepers (1) Bonkowski v. Arlans Department Store 1968 (D approached P in parking lot to ask to look through bag and return to store). 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. The Restatement does not mention whether it is OK to detain someone who has left premises but still in the vicinity. It is for the jury to decide whether D reasonably believed the P had stolen goods, and whether the investigation was reasonable under all the circumstances. If it is not this privilege, then it could find a false arrest. When D has a privilege, the burden of proof is on D. 4) IIED The Convincing Sound of the Broken Bone vs the Pathetic Squeak of the Cracking Mind Siliznoff, 51; Slocum, 55; Harris, 58; Taylor, 65; Snyder v. Phelps (SCOTUS, 2011: hand-out) Emotional Distress redux Daley, 464; Thing, 471; Endresz, 478 Procanik, 483 a) IIED elements: One who behaves outrageously in causing severe emotional distress to another is liable for the damages stemming from that emotional distress, including physical injury b) *Severe emotional distress must be severe I.e. so severe that a reasonable person would not be expected to endure it. Unlike most torts, the severity of the damage affects not just how much the plaintiff will be able to recover, but whether P can recover at all. *medical proof required c) Prima Facie Case i) an act by the D amounting to extreme and outrageous conduct (1) To limit abuse of this tort, the conduct must transcend all bounds of decency tolerated by society. (2) Conduct that is not normally outrageous will be if it continuous in nature, directed a certain kind of P (kids, elderly, pregnant), committed by a certain type of D (common carrier, innkeeper) (3) Ex of outrageous conduct: i. Extreme business conduct-collection ii. Misuse of authority-school bullying pupils iii. Offensive language if there is a special relationship-common carrier and innkeeper iv. Known sensitivity-if D knows that P more susceptible and does, D liable. Ex: sensitive adult, kids, pregnant, old ii) intent or recklessness (1) liable for intentional and reckless (disregard for the high probability that emotional distress will result) (2) Intention-dont need to show purpose or motive, but you do have to show that the D knew w/ substantial certainty that there would be an invasion to the person of the other iii) Causation (1) D conduct proximately caused the Ps emotional distress (2) Where the D intentionally harms a 3rd person and the P suffers emotional distress b/c of relationship to that person, harder to prove intent and causation. So if cant show prima facie, can prove to establish case: (a) P was present when injury occurred (b) P was a close relative of person injured (c) D knew that P was there and was close relative iv) Taylor v Vallelunga-Daughter saw her father beaten. D won b/c didnt know daughter there. v) There is a special liability for the mishandling of corpses of a relative. vi) damages-severe emotional distress (1) actual emotional damages must be shown (physical injury not required) (2) Punitive damages allowed where D conduct was improperly motivated. d) Snyder v Phelps - The Supreme Court affirmed the lower court's decision in an opinion by Chief Justice John G. Roberts, Jr. The Court held that the First Amendment shields those who stage a protest at the funeral of a military service member from liability.Concurring: Breyer: Justice Stephen J. Breyer filed a concurring opinion in which he wrote that while he agreed with the majority's conclusion in the case, "I do not believe that our First Amendment analysis can stop at that point." Dissent: Alito: Justice Samuel Alito filed a lone dissent, in which he argued: "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case." i) Why is there an IIED Tort? (1) Jury found emotional distress (2) D countered it was excessive and used first amendment right as a defense- if speech is of public concern it is more likely to be protected. (3) (Public Concern- relating to any matter of political, social, or other concern to the community). How to determine? Content, form and context. (4) This is public because it addresses the moral and political conduct of the US and took place on a public street. (5) Example of private concern: tax return and sexually explicit video (6) ALL 3 OPINIONS CITE HARRIS V JONES- extreme and outrageous conduct in MD. (7) Plaintiff: Less than full protection under the 1st Amend. Because private matter, exploited as a platform, (8) MD rule- funeral picketing cannot consider, not in place at the time (9) Even protected speech is not equally permissible in all places and at all time e) State Rubbish Collectors Assn v. Siliznoff 1952 (trash collector case- threatened with physical violence) (There is a cause of action because there was without priv. an intentional infliction of emotional distress for serious threats of physical violence it does not matter that the threats do not technically rise to the level of assault.)

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Slocum v. Food Fair Stores of Florida 1958 (you stink to me grocery store old lady case- must go beyond mere insults) A) The conduct must be intentional or reckless; b) The conduct must be extreme and outrageous; c) There must be a causal connection between the wrongful conduct and the emotional distress; d) the emotional distress must be severe. g) Harris v. Jones 1977 (boss mimicking stuttering employee case) i) Intentional or reckless YES ii) Extreme and outrageous YES (1) In determining whether conduct is outrageous, the totality of the circumstances must be considered. The environment and characteristics of the individuals involved must be taken into account. (2) Whether conduct can be considered outrageous is initially a question for the judge. When reasonable people could form different opinions as to whether conduct was outrageous, it is a question for the jury. iii) Causal connection between wrongdoing and emotion distress NO iv) Distress must be severe NO h) Third Parties- When a Defendant is not even aware of the Plaintiffs presence or does not commit the acts causing the distress with the intention of causing Plaintiff such distress, the Defendant has not intentionally inflicted emotional distress upon the Plaintiff. 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. i) Taylor v. Vallelunga 1959 (Girl watched her dad beaten, D did not know she was there, no intention). Consent What happens when the plaintiff has consented to unlawful contact? Cunard, 92; Wallace, 31;Hackbart, 93; Mohr, 95; De May, 100 a) D is not liable for an otherwise tortuous conduct if the P consented to the Ds act. i) Types of Consent: Express (actual) Consent-P has expressly shown a willingness to submit to the Ds conduct (1) Consent by Mistake- is valid consent unless the D caused the mistake or know of the mistake and takes advantage of it (2) Consent induced by fraud-is not valid if it is an essential matter. If it is regarding a collateral matter, the consent will still be valid. (a) De May v Roberts-man in house under false pretense of being a Dr. and touched wife and suing. No consent b/c mistaken belief instilled by the Ds deceit. Lack of knowledge necessary to make consent. (3) Consent obtained by duress-invalid. a. Threats for future action or future economic deprivation do not constitute duress. ii) Implied Consent- Ps consent may be implied in a given case/ there are 2 types: (1) Apparent Consent-what a reasonable person would infer from the Ps conduct. (a) inferred from usage and custom-ex: daily life-bumped in crowd (2) Consent implied by law-where action is necessary to save a persons life or some other important interest in person or property Ex: unconscious (3) Silence and inaction can imply consent to a Ds acts if the circumstances are such that a reasonable person would speak if he objected. (a) OBrien v Cunard S.S. Co-People on the ship being vaccinated. P had the shot, Dr said need it a/w and she put out her hand. Directed verdict for D- means consent proven. (i) Questioned the consent in this case. Capacity Required: incompetents, drunks, children are incapable of consenting to tortuous conduct. Need consent of a parent or guardian. Criminal Acts-a person cannot consent to a criminal act (ii) The modern trend is to differentiate b/t acts that are breaches of the peace so the consent is ineffective (street fight) and those that arent so the consent is effective (prostitution) (iii) Where the act is made criminal to protect a limited class against its own lack of judgment (statutory rape), consent is not a good defense. (b) Wallace v. Rosen 2002 Indiana p.31 Pattern Jury Instuction- touching in a rude, insolent, angry, manner. expanded. (i) Sometimes Tort law reaches to certain norms- enforced implied consent upon us. (ii) P.32-33 reconstruct the battery jury instruction- key paragraph that explains why p lost is (iii) No battery as certain touching which are inevitably part of the world No, the circumstances in which the case takes place did not infer that the D met the requirements of battery. (iv) Is Wallace like Obrien? We implicitly consent to certain touchings. All Wallace did was sit in situation. This expands the notion of consent to a social or communal inference. (v) In order to have battery you need: 1. 1. knowing or intentional touching of a person in a rude insolent or angry manner 2. 2. any touching, however slight, may be an assault and battery 3. or 3. Battery can be recklessly committed where one acts in reckless disregard of the consequences, intention is immaterial. a. (today Battery is no longer a negligent tort, only an intentional tort) b. The court rules that the conditions on the stairway of Northwest High School during the fire drill were an example of Professors Prosser and Keetons crowded world. (Where touching and taps on the shoulder are inevitable). Rosen had a responsibility to her students to keep them moving and out the door during a fire drill. (c) Hart v Geysel-2 guys in illegal prize fight and one was killed. Allowed to sue, but consent can be brought as a defense as long as both parties consented to the act. (i) When one voluntarily engages in illegal conduct which will cause injury, the privilege of consent can be asserted to defend any civil action the P might bring. (ii) In pari delicto-in equal guilt, the Ds position is better. (pg 101) (iii) One should not profit from his own wrongdoing-this maxim also works against the P (iv) Allowing pp involved in illegal activities to sue brings a benefit to society that it wont allow pp engaged in illegal activities to take it too far. Its like an incentive to pp not to participate in illegal activities b/c they can be sued. (v) If the D goes beyond the consent given and does s/t substantially different, he is liable. (d) Mohr v Williams-surgery on the right ear. It was ok, but left had problems so operated on left. (e) Hackbart v Cincinnati Bengals, Inc-An intentional blow during a football game may give rise to liability even

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though there are rules to the game, Self Defense-when a person has reasonable ground to believe he is being or about to be attacked, he may use necessary force as protection against injury. i) When is the defense available? (1) Reasonable Belief-the privilege exists as long as the D reasonably believes that force is necessary to protect himself. Apparent necessity, not actual necessity! a. A reasonable mistake as to the existence of a danger is allowed. (2) Retaliation-when there is no longer a threat of battery, the privilege terminates and the original victim becomes liable for battery if he uses force (a) The initial aggressor is not privileged to defend himself against the other partys reasonable use of force. If the party uses deadly force when aggressor didnt, the aggressor may defend himself w/ deadly force. (3) Provocation-insult, threats, and opprobrious language do not justify the exercise of self defense. (a) If the words are accompanied by threats of violence or by an overt hostile act, then oral abuse may amount to a challenge to fight and then would be allowed (4) Amount of Force-can use the amount of force that is or reasonably appears to be necessary for protection against the threatened battery. (a) Deadly weapons can only be used if the D has a reasonable apprehension of loss of life or great bodily injury. (b) Retreat-since it is hard to retreat from an assailant, the majority holds that a person may stand his ground and use the force necessary to protect himself. (c) Injury to 3rd Party-if s/o accidentally hurts a 3rd party while defending himself, the privilege of self defense is carried over, like transferred intent, and he will not be liable to the 3rd party. Defense of Others a. Actor needs to have the reasonable belief that the person being aided would have the right to self defense. i. The D may use reasonable force even if his intervention was unnecessary as long as it was a reasonable mistake b. The defender may use the amount of force that he could have used had the injury been threatened at him. Defense of Property (1) One may use reasonable force to prevent the commission of a tort against real or personal property (2) A request to desist or leave must first be made unless it clearly would be futile or dangerous. (3) The defense does not apply once the tort had been committed; however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of her chattels b/c the tort is viewed as still being committed. (4) Whenever an actor has a privilege to enter the land of another b/c of necessity, recapture of chattel, etc, that privilege supersedes the privilege of the land possessor to defend her property. (5) Mistake: a reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is not allowed as to whether the entrant has a superseding privilege, unless the entrant leads the D to reasonable believe it is not privileged. (6) Katko v Briney-thief recovered punitive damages when injured in a shotgun trap. (a) The court values person over property. (b) No privilege exists to maintain a mechanical device which defends property when it automatically harms an intruder. ii) Recovery of Property Basic rule like reentry on land: when anothers possession began lawfully (a conditional sale), can only use peaceful means to recover the chattel. Reasonable force can be used only when in hot pursuit of one who has obtained possession wrongfully, by theft. (1) Hodgen v Hubbard- P got stove on credit by misrepresenting his assets. D ran after to forcibly take it back. J/P/R. This shows that the law does respect property b/c recognizes a privilege to recapture chattels when the owner has been defrauded or his rightful possession and he pursues the wrongful taker of his goods in fresh pursuit. (a) When is defense available? (i) Timely demand to return the chattel is first required unless clearly futile or dangerous. (ii) Can only recapture from a tortfeasor or some 3rd persons who knows or should know that the chattels were tortiously obtained. You cannot use force to recapture chattels in the hands of an innocent party. iii) Entry on land to remove chattel: iv) On Wrongdoers land -When chattel is on the wrongdoers land, the owner is privileged to enter and reclaim it at a reasonable time and in a reasonable manner, after made demand for return. v) On land of an innocent party -When chattel is on the land of an innocent party, the owner may enter and reclaim it at a reasonable time and in a peaceful manner when the landowner has been given notice of the presence of the chattel and refuses to return it. (1) Right to recapture supersedes right to defend property. vi) On land through owners fault- There is no privilege to enter the land and the chattel may only be recovered through the legal process. vii) Generally no mistake is allowed. Shopkeepers have a privilege to detain for a reasonable period of time individuals whom they reasonably believe stole. viii) Bonkowski v Arlans Department Store- P accused of taking jewelry and suing for FP b/c the store detained her 30 ft from the store. (1) (broadens the privilege cuz the customer left the premises) ix) Necessity2 (1) A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it. (2) 2 types of necessity: (a) Public Necessity-when the act is done for the public good (i) Surocco v Geary-D blew up P building to prevent a fire from spreading. J/D. o Sacrifice the property of an individual for the greater interest of society (b) Private Necessity-when the act is done solely to benefit any person/property from destruction or serious injury. An actor must pay for the injuries he causes. (c) Vincent v Lake Erie Transp Co- Ship owner left ship and the P took care of the (i) ship when it otherwise would have been lost in the storm. J/P/A. (ii) We have 2 competing interests at stake-2 property interests.

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(iii) The court says that the D made a decision based on the relevant efficiency of the outcome: he wanted to save his more valuable ship at the expense of damaging the dock, so liable NEGLIGENCE - Why does some careless behavior go unremunerated? (Palsgraf redux) Lubitz through Carroll Towing, 135-4 Vaughn, 150; Cordas, 159; Trimarco, 155 a) NEGLIGENCE Elements of the PRIMA FACIE CASE i) Duty on the part of the D to conform to a specific standard of conduct for protection of P against an unreasonable risk of injury. ii) A Breach of that duty by the D iii) Causation in fact-The breach is the actual and proximate cause of Ps injury iv) Damage b) A NEGLIGENCE FORMULA-Establishing a duty i) Lubitz v Wells -Father left a club. Son hit P. P suing father for negligence. dad not liable. (1) causal link: If father hadnt left the club out, the son wouldnt have swung it and the P wouldnt have gotten hurt! ii) Reasonable conduct that has a low probability of resulting in harm to others is not negligence iii) A superstructure if adult had to supervise child- what would that mean? Duties parents have to supervise children in the ordinary acts of life? iv) How long was the gold club sitting there? An instant ago is different than 24 hrs. Theory of carelessness had nothing to do with supervision but just that he left the an instrumentality that could cause harm for a certain amount of time. v) Blyth v Birmingham Waterworks Co-D not liable that water main broke b/c frost not foreseeable vi) Possible to do more to prevent bursting, but only responsible to do what the reasonable, prudent person would have done in those circumstances and would have been high cost. vii) the degree of foreseeability is lower than in Lubitz. c) Negligence involves the creation of an unreasonable risk, by act or omission, which a reasonable and prudent man would not create. Gulf Refining Co v Williams-D liable that didnt maintain the gas drums properly b/c a spark came out when opened. i) Even though also unusual, went to a jury, unlike Blythe, b/c higher foreseeability. a) An act for negligence will exist where the D incurs a risk that makes the possibility of harm real enough that an ordinary person would take action to avert the threatened danger Chicago, B & Q.R. v Krayenbuhl-D held liable b/c cost to lock TT and wouldnt deter use. i) The nature of precautions which must be taken depends on: (1) the character and location of the premises; (2) the purposes for which they are used; (3) the probability of injury; (4) the precautions necessary to prevent injury; and (5) the relation of such precautions to the beneficial use of the premises. d) Pipher v. Parsell Sup. Ct. Del. 2007 When actions of a passenger that interfere with the drivers safe operation of the motor vehicle are foreseeable, the failure to prevent such conduct may be a breach of the drivers duty to his passengers or the public. i) The business of life must go forward so always creating risk and s/t create a risk where potential harm is foreseeable. Permitted to keep creating risk, but may cross the line to liability for negligence Attractive nuisance doctrine! e) Davison v Snohomish County-D not held liable for failing to have an adequate guard rail that would have prevented the car from going through it and falling off the road b/c high cost. o Monetary cost is too high to make public responsible to protect against e/ possible accident. f) United States v Carroll Towing Co-D liable for not being on ship so didnt spot leak. i) It has been established that the D was negligent and the issue is whether the P was contributory negligent focusing on the Ps conduct rather than the Ds conduct. ii) Violation of internal rule that didnt have bargee (like locked RR) b/t 8-4 established foreseeability since the rule was instituted to protect against such circumstances so it was foreseeable that s/t like this would happen. iii) Negligence Equation: Costs to the D