Torts Outline .docx

**Table of Contents** **Chapter 1: Introduction and Overview of Tort Law** **Chapter 2: Intentional Torts** A. Intent B. Battery C. Assault D. False Imprisonment E. Trespass to Land F. Environmental Trespass to Land G. Nuisance H. Trespass to Chattel I. Conversion J. Intentiona...

**Table of Contents** **Chapter 1: Introduction and Overview of Tort Law** **Chapter 2: Intentional Torts** A. Intent B. Battery C. Assault D. False Imprisonment E. Trespass to Land F. Environmental Trespass to Land G. Nuisance H. Trespass to Chattel I. Conversion J. Intentional Infliction of Emotional Distress **Chapter 3: Defenses to Intentional Torts** A. Consent B. Defense of Self C. Defense of Others D. Defense of Real Property E. Defense and Recovery of Personal Property F. Necessity **Chapter 4: Negligence** A. Elements of a Negligence Action B. Negligence Formulation and Factors C. Establishing the Standard of Care 1. Case law i. The Reasonable Prudent Person ii. The Reasonable Prudent Child iii. The Reasonable Prudent Professional 2. Rule of Law 3. Non-Tort Statute 4. Tort-Specific Statute D. Proving Negligence **Chapter 1: Introduction and Overview of Tort Law** A. Overview of tort law: (3 types of torts) intentional torts, negligence, strict liability a. Voluntary act required for all torts b. Liability for intentional and unintentional torts c. Burden of proof (production, persuasion) on the plaintiff 1. Absolute/Strict Liability: liability without fault a. Policy considerations i. Corrective justice: ∆ committed wrong and was at fault; π innocent (correct imbalances) ii. Compensation: restore π to pre-tort position iii. Optimal deterrence: \$ to encourage ∆ and others not to engage in that conduct 2. Do not have to be showing of fault if engaging in an ultrahazardous/dangerous act (but socially beneficial) 3. Purpose: b. Intended to restore plaintiff to pre-tort position c. Protect against wrongs resulting in injury to person or property B. Brief history d. Based on writs of trespass and trespass on the case e. Oliver Wendell Holmes Jr. (1881) i. A person is answerable for all consequences of one's actions ii. A person acts at his peril regardless of fault f. Concept of fault introduced by *Weaver v. Ward* g. Burden of proof switched to the plaintiff **Chapter 2: Intentional Torts** **Intentional torts: provide remedy for those injured by another's intentional or purposeful conduct** A. **Intent**: first element of *prima facie* case (π must prove to move forward w/ her cause of action) a. Intent -- specific or general (reckless in IIED) b. Act -- Voluntary/volitional (movement must be willed not involuntary) c. Causation ("but for the volitional act, the technical injury would not have occurred") d. Technical injury/ "Consequences" -- different for each intentional tort i. Battery: harmful/offensive contact to the person of another ii. Assault: apprehension of imminent battery iii. False Imprisonment: confinement iv. Trespass to Land: interference with the possessory rights of one's real property v. Environmental TTL: invisible entry, substantial harm/damages vi. Nuisance: interference with possessor\'s use and enjoyment of real property vii. Trespass to Chattel: interference with possession of personal property viii. Conversion: major interference and destruction of property/chattel ix. Intentional Infliction of Emotional Distress: severe emotional distress 1. Requisite intent: established one of two ways (don't need both) A. Specific intent: desiring to bring about the technical injury/consequence of a particular tort B. General intent: acting with knowledge to a substantial certainty that technical injury/ consequence of a particular tort will occur 2. Must intend \#4 technical injury/consequence, not \#2 the voluntary act 3. Good faith mistake does not negate intent 4. Children are responsible for their intentional torts (*Garratt v. Dailey*) 5. Mental illness does not negate intent (*McGuire v. Almy*) 6. Transferred intent doctrine (5) a. Can use intent for one tort to establish intent for another tort b. ∆ intends to harm one person, but inadvertently causes harm to another c. Π can prove intent for any of the 5 specified intentional torts by establishing that the ∆ intended to commit any 1 of the 5 and accomplished any 1 of 5 TID: applies when -- Defendant commits a different tort against the same person; Defendant commits a same tort against a different person; Defendant commits a different tort against a different person; CANNOT transfer from object to person d. Only works with i. Battery ii. Assault iii. Trespass to land iv. Trespass to chattel v. False imprisonment B. **Battery** e. Intentionally causing harmful or offensive contact with the person of another f. Technical injury for battery (does not require actual injury; either/or/and:) x. Harmful contact: physical impairment, pain, illness xi. Offensive contact: offend a reasonable sense of personal dignity xii. Contact 1. With another's physical body 2. Includes anything so intimately associated as to be customarily regarded as part of the person (*Fisher v. Carrousel Motor Hotel, Inc.*) g. Set into motion the chain of events that that results in the harmful/offensive contact h. Seeks to protect a person from unwanted bodily contact i. Nominal damages are available j. Crowded world: a certain amount of personal contact is inevitable and must be accepted C. **Assault** k. Intentionally causing apprehension of an imminent battery xiii. No touching, fear, contact required xiv. A person can be battered without being assaulted xv. Mere words alone are insufficient unless coupled with other acts/circumstances xvi. "apparent" ability not "actual" xvii. No future threats, must be imminent xviii. Π must be awake/conscious l. Protects: mental freedom from unwanted touching m. Nominal damages are available D. **False Imprisonment** n. Intentionally causing a person to be confined to a physical space by boundaries determined by the defendant. o. p. Liability for false imprisonment xix. He acts intending to confine another within [boundaries fixed by the actor], and xx. His [act directly or indirectly results in such a confinement] of the other, and xxi. The [other is conscious] of the confinement **or** is [harmed] by it. xxii. If there is a [reasonable means of escape about which the plaintiff is aware], not false imprisonment action may lie xxiii. the direct restraint of one person of the physical liberty of another without adequate legal justification. q. Protected interest: freedom of movement r. Technical injury: confinement s. Words can constitute false imprisonment if they are words the plaintiff "fears to disregard" t. Damages xxiv. Actual damages: restore the plaintiff to their pre-tort position xxv. Exemplary damages: punitive; punish defendant xxvi. Remittitur: reduces damages given to plaintiff u. **Shopkeepers privilege:** a shopkeeper can detain for reasonable investigation a person whom the shopkeeper reasonably believes to have stolen property v. False arrest xxvii. A false imprisonment claim under the color of law may also be termed a false arrest action xxviii. Conviction for the crime for which one is arrested is a defense to a false arrest or false imprisonment claim xxix. Whether the defendant's conduct was reasonable or not, a false arrest or false imprisonment action will not lie if the plaintiff actually committed the crime E. **Trespass to Land** w. Intentionally entering or causing entry onto the real, immovable property of another (another's "close of land") xxx. Key: entry xxxi. Land, real property, fixed to land x. Liable, irrespective of whether he causes harm to any legally protected interest of the other, if he intentionally "enters land in the possession of the other, or causes a thing or a third person to do so" y. No harm required, so nominal damages available z. Interest protected: possession of real property xxxii. Cause of action belongs to the possessor (not owner, unless both) a. Space upwards and down to the earth beneath (within reasonable limitations) b. The actor, without himself entering the land, may invade another's interest in its exclusive possession by throwing, propelling, or placing a thing either on or beneath the surface of the land or in the air space above it. c. Flight by aircraft in the space above the land, if it enters into the immediate reaches of the air space next to the land, and it interferes substantially with the other's use and enjoyment of his land d. Nominal damages xxxiii. The damages awarded to the plaintiff are dependent on the extent of damage done to the property/land xxxiv. Entry alone is enough to lead to damages F. **Environmental Trespass to Land** e. Invisible entry onto the close (real property) of another f. Microscopic particulate matter g. Actual/substantial damages required h. No nominal damages available G. **Nuisance** i. Requires proof of a substantial and unreasonable interference with the use and enjoyment of the possessor's land (real property) j. Unreasonableness of the interference is necessary for liability xxxv. There is no liability without [significant harm] xxxvi. Must be able to prove actual damages xxxvii. No nominal damages (requires actual significant damages) k. Can co-exist with Trespass to land H. **Trespass to Chattel** l. Intentionally using or intermeddling with the possessory interests of the chattel of another (physical contact) xxxviii. dispossession (requires contemporaneous awareness) *or* xxxix. actual impairment of condition, value, or quality *or* xl. deprivation of use for substantial period of time *or* xli. harm to something in which possessor has a legally protected interest m. Possessor of chattel: one who has physical control of the chattel with the intent to exercise such control on his own behalf, or on behalf of another xlii. Protects a possessory interest n. Chattel: personal and moveable property, not fixed to land o. The owner of personal property can create a privilege in the would-be trespasser by granting consent to use the property. p. Nominal damages are not available xliii. It requires proof that the user intermeddling constituted an actual harm q. Measure of damages: Diminution of value of the chattel to the possessor I. **Conversion** r. Intentionally exercising dominion or control over chattel that so seriously interferes with the possession that defendant is justly forced to pay full value of the chattel xliv. Essentially an aggravated trespass to chattel s. Forced sale of the chattel t. Nominal damages available xlv. Measure of damages: full market value of property at the time of the conversion J. **Intentional Infliction of Emotional Distress** u. Intentionally causing severe emotional distress to another xlvi. Tort of last resort xlvii. Responsible for emotional distress *and* bodily harm resulting from it v. *Prima facie* case xlviii. Intent: general, specific, or recklessness (∆ knew risk but was indifferent to the risk) xlix. Act: extreme and outrageous conduct 3. Words alone are not enough 4. Beyond bounds of human decency/civil society l. Causation: "but for...." li. Harm: severe emotional distress; limited to what a reasonable person would suffer; no nominal damages w. No nominal damages (emotional distress must manifest itself physically) x. Plaintiff must be identified to defendant (aware of presence) y. Recovery for physical injury lii. Allowed if physical injury results from intentionally subjecting plaintiff to serious mental distress z. IIED is not covered under the transferred intent doctrine **Chapter 3: Defenses to Intentional Torts** G. **Overview** a. General defense vs affirmative defense i. General defense: ∆ attacks π's *prima facie* case (disputes intent, causation, act, tech. inj.) ii. Affirmative defense: ∆ established that they were privileged to commit the tort, proving an independent reason that π should not be permitted to recover, and ∆ should not be held liable 1. Does not negate the elements of the *prima facie* case 2. Burden of proof on the defendant H. **Consent** b. Consent iii. Proof that the plaintiff was in fact willing for the tortious conduct to occur iv. Apparent: (POV of ∆) π's words or conduct reasonably understood to mean π was willing for the conduct to occur v. Implied: reasonably inferred from the π's conduct vi. Express: oral or written; π has expressly shown a willingness for the ∆ to perform the conduct vii. One must have capacity to consent viii. Often a question of fact (determined by jury) ix. Consent can be limited by place, time, scope, purpose 3. Ex: sports = implied consent to the conduct permitted by the rules of the game c. Medical battery -- implied consent to medical battery (all 5 elements necessary) 1. π unable to consent (minor, unconscious, drunk, etc.) 2. lifesaving/preserving medical attention 3. reasonably necessary at the time 4. no reason to believe *this* plaintiff would not consent ***and*** 5. a reasonable person would consent a. Consent and fraud/misrepresentation (*De May v. Roberts*) i. Consent procured by fraud/misrepresentation is invalid ii. To invalidate consent, fraud must go to essential character of the conduct, not to a collateral matter iii. Often a factual determination a. General tort rule: π's consent to criminal conduct is valid unless ∆'s conduct violates a criminal statute designed to protect a class of persons to which π belongs I. **Defense of Self (Self Defense)** d. One is privileged to use reasonable force to protect self against imminent serious bodily injury as long as: x. ∆ reasonably believes xi. force is immediately necessary (does not have to be right) xii. To avoid ongoing threat of injury, and xiii. ∆'s force is in proportion to the threat e. Once the threat of force ends, the privilege of self-defense ends (no retaliation) f. Deadly force (created substantial risk of causing death or serious bodily harm) may be used in self-defense if it is proportional to the threat g. ∆ cannot be the initial aggressor; initial aggressor not able to claim self-defense J. **Defense of Others** h. Mirrors the privilege of defense of self; ∆ "steps into the shoes" of the other i. ∆ reasonably believes that the other person would be privileged to use force in self-defense and one's intervention is necessary at the time K. **Defense of Real Property** j. Property owners may use as much force as is reasonably necessary to prevent another from unlawfully coming onto their property or to remove another who is trespassing, but property owners must prove: xiv. The trespass occurred xv. Reasonable belief force was necessary xvi. They asked the trespasser to leave or that the request would have been futile k. Force to protect real property xvii. Deadly force NOT permitted 4. Law values human life over real property L. **Defense and Recovery of Personal Property (chattel)** l. Recovery of chattel (if do not meet elements seek recovery via TTC) xviii. One dispossessed of chattel is privileged 5. to use reasonable force 6. to recover the chattel 7. immediately after its dispossession xix. Limited to: 8. Fresh pursuit 9. Demand return (unless futile or dangerous) and 10. Reasonable force under the circumstances m. No deadly force n. Law values human life over property M. **Necessity** o. Defendant acting based upon reasonable belief xx. to prevent threatened injury 11. from force of nature 12. other independent cause not connected to π or ∆ p. Public and Private necessity xxi. Public necessity: when ∆ acts on behalf of the public 13. Complete defense, no recovery, not held liable at all 14. "Champion of the public" a. Privileged to destroy, damage, or use real or personal property of another b. If defendant reasonably believes c. It is necessary to do so to avert d. Imminent e. Public disaster xxii. Private necessity: to protect interest private to ∆ 15. ∆ defends his own private property based on necessity; 16. Limited or partial privilege f. No liability for technical tort g. BUT must pay for actual damages caused 17. Reasonable belief 18. Protect property 19. From imminent harm or danger 20. From a force of nature/ act of God N. **Justification** q. Catch-all r. Extenuating circumstances **Chapter 4: Negligence** **Negligence: Actions provide remedy for injuries sustained by one's unintentional and unreasonable conduct** A. **Elements of a Negligence Action (*prima facie*)** 5. Duty/standard of care -- establishing duty (4) iv. To act as the reasonable prudent person would in same or similar circumstances v. Requires defendant to foresee unreasonable risk of harm for any volitional act 6. Breach vi. Non-conformity to the standard of care vii. Along with duty, sometimes referred to as "negligence" 7. Causation viii. Causation in fact (but for) and ix. Proximate/legal cause 8. Harm x. Actual loss; damages **Policy:** - Striking the appropriate balance (balancing act) - Circumstances in which ∆ was acting - Weighing public benefit against possible dangers (not probable) - "Business of life cannot be rendered absolutely safe" **Contributory negligence:** (comparative negligence) requires proof of same 4 elements (duty, breach, causation, harm) **Gross negligence:** failure to exercise any care; aggravated negligence **Establishing Duty** - Duty exists when: B\>PL A. B = Burden of taking precaution B. P = Possibility of risk C. L = Gravity of potential harm - 4 ways to establish duty 1. Case law (RPP) a. The reasonable prudent person b. The reasonable prudent child c. The reasonable prudent professional 2. Rule of law 3. Non tort statute 4. Tort specific statute **The Reasonable Prudent Person** - ALWAYS objective standard, NEVER subjective - Not based on ∆ knowledge but that of the RPP - What **THE** reasonable prudent person would do under the same or similar circumstances - Does not take on actor's mental deficiencies, unless sudden mental incapacity - Circumstances change (emergency doctrine), he does not - Emergency still requires RPP in same/similar circumstances - Takes on actor's physical characteristics - Considers custom and still acts reasonably (not determinative) - Factfinder to determine mental deficiency or physical characteristic **The Reasonable Prudent Child** - The reasonable child of like age, intelligence, and experience *unless* - Operating motorized vehicle (*Dellwo* jurisdiction) - Engaged in adult activity (RESTATEMENT) - Engaged in inherently dangerous activity (*Robinson* jurisdiction) - Objective standard (always) - Some jurisdictions provide no exceptions for children **The Reasonable Prudent Professional** - Not based on person's individual training, perceptions, feelings, experience, etc. - Objective standard - Professional: A person belonging to a learned profession or whose occupation requires a high level of training and proficiency - Specialists held to standard - "Minimally competent professional" or "ordinary"; NOT "average" - Expert testimony required to establish SOC/duty, *unless* within common knowledge of laypersons - Licensing/certification does not matter, still held to RP\[P\] standard - Custom does not dictate duty - The RP\[P\] takes into consideration custom, but still acts reasonably - **Informed Consent Doctrine (ICD):** - Physician required to inform patient about treatment protocol, available alternatives, and collateral and material risks; (Duty) - What a reasonable patient would want to know (minority) - Burden of proof on π - AND includes research, economic or other personal interests in patients' treatment protocol - Affirmative defenses to ICD - Exceptions: Common knowledge, therapeutic privilege e(emotionally upset patient), emergency - Burden of proof not on ∆ to plead/prove - Breach of fiduciary duty - Fiduciary relationship/obligation = trust - Breach of obligation = best interest not in mind - No proof of actual damages required - No actual harm/loss (immaterial to breach of FD) - Disgorgement of fees/economic benefit - Example: medical context = doctor and patient **Applying Rule of Law** - **Rule of Law:** Judicial declaration of specific conduct that always constitutes duty and breach - Term of art; specific legal meaning - Rare because "too rigid" and disfavored in negligence law **Applying Non-Tort Legislation** - "This statute/regulation/code (criminal or civil)... tells us we cannot do x, and if ∆ violated x, it should establish duty and breach" - Asks: can π use statute/regulation/code (criminal or civil for non-tort purpose to establish standard of care in negligence law. - When a court may allow for non-tort statute to be used in **establishing Duty and Breach:** - Injury to a member of the class of persons intended to be protected by the legislation AND - Harm is of kid which the statute or regulation was enacted to prevent AND - Appropriate for imposition of tort liability - Question of Law: judge determines whether statute can be used - Question of Fact: jury determines if statute was violated - **Negligence per se** - Term of art - Negligence as a matter of law - Proof of the statute's violation - Option for effect of proof