Torts Attack PDF

**Battery**: is an (1) intentional act by D (2) to cause (3) harmful or offensive contact with the D (4) causing (5) damages. \*\*Offensive to reasonable sense of person dignity, even if unusually sensitive but not if D knew 1. Intent Single -- Intent for contact Dual -- intent for contact and...

**Battery**: is an (1) intentional act by D (2) to cause (3) harmful or offensive contact with the D (4) causing (5) damages. \*\*Offensive to reasonable sense of person dignity, even if unusually sensitive but not if D knew 1. Intent Single -- Intent for contact Dual -- intent for contact and for it to be harmful Transferred Intent: P/P & T/T 2. Contact **Defense -- Consent:** 2RS -- willingness for conduct to happen; action or inaction & need not be communicated Express, Implied, Emergency **Assault:** is an (1) a volition act by D (2) with intent to cause immediate apprehension of (3) harmful or offensive contact (4) causing reasonable apprehension in P. MUST BE SEEN!! Imminent = close in time and space of actual threat **FI:** is an (1) an intentional act by D (2) that confines P to a bounded area (3) without a reasonable means of escape (4) where P is aware of or harmed by it. **FI Defenses:** **Shopkeepers' Priv.** Reasonable manner and time **Consent:** Subsequent consent can negate FI **IIED:** is (1) E/O conduct by the D (2) with the intent or recklessness to cause emotional distress (3) actually causing emotional distress in P (4) resulting in damages **E/O:** MUST be "utterly intolerable to civilized society" **Damages/Harm:** severe/substantial **Trespass:** is the (1) intentional intrusion (2) on to property owned by another (3) without consent or privilege (4) interferes with Ps right of possession. \[*Desnick* consent \> misrepresentation\] Remaining or failing to remove **TTC:** is an (1) intentional act by the D (2) intermeddling or using Ps personal property (3) without consent (4) causing actual harm to the chattel or P is deprived of its use for a substantial time. **Conversion:** is an (1) intentional act by D (2) exercising substantial control over Ps personal property (3) seriously interfering with Ps ownership rights (4) to the extent justifying forced sale. D = pay for full value of the property *\[The last laugh\]* **Privileges:** "CSPN" **Consent:** Express OR implied, but CAN'T exceed scope **Self-Defense:** reasonable belief and force *\[Katko\]* **Defense of Property:** reasonable force; NEVER deadly for property alone **Necessity -- ONLY for property** **Public:** don't need to \$\$ for damage; unlimited/unqualified privilege **Private:** reasonable believe action is necessary; must \$ for damage *\[Ploof\]* **Negligence**: The tort of negligence is when there is (1) a duty (2) a breach of that duty (3) causing (but-for and proximately) (4) damages/harm to the P. **Duty**: "AUSL"; As a matter of law COURT!! **Affirmative Acts:** misfeasance/nonfeasance - Duty begins when you engage in act that creates risk!; exception Vermont \$100 fine **Undertakings** - Voluntary assumption of duty; can't make situation worse than when you found it!; medical; botched rescue *\[Coast Guard\]*; reasonable care once undertaking. **Special Relationships:** creates duty to protect/help; professional relationship *\[Tarasoff\]* **Land:** **Traditional** - Trespassers -- no to adults (exception is attractive nuisance for children *\[Turn table case\]*) - Discovered trespassers; frequent trespassers - Invitees -- duty to make the premises reasonable safe - Licensees (social guests) -- duty to warn against hidden dangers that are known or should have been known **Modern (Rowland & 3RS)** Reasonable-conduct-under-all-the-circumstances 1. Foreseeability of the harm (2) connection between Ps injury and Ds conduct (3) moral blame **Breach**: \[Standard of Care\] Failure to exercise reasonable or ordinary care JURY!! **Mental:** not unless known **Physical:** yes what reasonable person with that same impairment would do **Children:** same age, intelligence, and maturity Except adult activities **Hand Formula**: B \< PL *\[US v. Carrol Towing\]* **Custom/Med Mal/ Informed Consent** **Custom:** not dispositive **Med Mal:** locality **Negligence per se**: protects a particular class from a particular type of harm *\[Martin\]* \*\*\*\* 3RS looks at \#1 = more flexible application **Causation**: **But-for:** but-for the defendant's act/omission, Ps injury would not have occurred \*requires a counterfactual analysis **Proximate:** is the harm caused a reasonably foreseeable consequence of the breach? *\[Palsgraf: Cardozo -- no duty for unforeseen P\]* *\[Kinsman: even if parties actions were not the direct cause of the events, still be liable if it is reasonably foreseeable that it could have happened.\]* **Damages**: 1) promote deterrence 2) corrective justice 3) recognize loss **Punitive** - Exceptional cases - Extremely blameworthy conduct - Deter/punish egregious behavior **Compensatory** **Specific**: out-of-pocket costs; medical costs **General**: pain and suffering; non-tangible items **Defenses**: **Contributory** Completely bars recovery on the claim if P is negligent **Comparative** **Pure**: P can recover even if 99% at fault **Modified**: 50/51% = non recovery **SL for abnormally dangerous activities:** (1) the activity must be abnormally dangerous and (2) the harm must be the type that makes the activity dangerous in the first place. *\[Rylands-flooding\]* \*\*\* likely to cause harm no matter how careful a person is 3RS approach: (1) creates foreseeable and highly significant risk and (2) not a matter of common usage **SL for abnormally dangerous animals:** wild = always strict; domestic = some are 1-bite, some states have statutory modifications. MUST CONFINE/CONTROL *\[Baboons\]* **Respondeat Superior:** (1) Is the D liable for the tort; (2) was D an employee; (3) was D within the scope of his/her employment? \*\*Conduct within the scope is = (1) work they are hired to perform (2) tort happened within authorized time and space of employment. [Frolic v. Detour // Independent contractors] **Products Liability:** A party may be held liable under a products liability claim for manufacturing, distributing, or commercially selling that is defective at the time of sale and causes (but-for and proximate) the consumers injury. Defects include: manufacturing, warning, and designing. **Manufacturing:** occurs where there is defect in specific unit or sets of units. These can be discovered by (1) comparing the defective unit to the intended design and (2) the difference caused the injury. *\[Planters\]* \*\* 3RS encourages product safety investment // no reasonableness test **Designing:** occurs when an entire product line's (1) design's dangers outweigh its utility (risk v. utility test) OR (2) when the product is more dangerous than the average consumer would expect (consumer expectations test) \*\* 3RS reasonableness test/ MUST show reasonable alternative *\[Chrysler\]* **Failure to warn:** occurs when a product does not contain proper instructions and/or adequate warning of foreseeable risks, uses, and misuses - Reasonable instructions, avoid label clutter, learned intermediary rule -- RX -- doc held liable - NOW turning to Direct-to-consumer advertising **Product Liability Defenses**: **Misuse** - Was it foreseeable? Yes = no defense **Assumption of the Risk** - Voluntary acceptance that harm might occur *\[Flopper\]*