Torts Outline PDF

Torts Outline Conway Intentional Torts I. Battery a. Intent to cause harmful of offensive contact. i. Acting purposefully of causing the harmful or offensive contact or...

Torts Outline Conway Intentional Torts I. Battery a. Intent to cause harmful of offensive contact. i. Acting purposefully of causing the harmful or offensive contact or ii. With knowledge that such harmful or offensive contact was substantially certain to be produced. b. Harmful or offensive contact occurred. i. Offensive contact occurs if the contact offends a reasonable sense of personal dignity. ii. Scope of liability: 1. Battery may occur through a defendant’s direct or indirect contact with the plaintiff 2. The intent required is not a specific intent to cause the type of harm that occurred – just an intent to bring about a harmful or offensive contact. 3. The type of harm and the extend of that harm the wrongdoer would be held liable if the actual harm is more than expected c. Offensive, Indirect, and Intangible Contacts: i. There does not have to be direct physical contact to a person, the contact can be indirect as through an object such as the plate being snatched from the person. Also, the language used during the interaction adds to the impact of actions from the defendant. d. Single v. Dual intent: i. Dual Intent: The plaintiff must prove that the defendant intended for the contact to happen AND that the contact is intended to be harmful or offensive. ii. Single Intent: The plaintiff must prove that the defendant intended for the contact to happen THEN the contact resulted in harmful or offensive contact. II. Assault a. The intent to cause harmful or offensive contact and a person is in an imminent apprehension of a battery i. The plaintiff must know and be conscious of the intended contact from the defendant. b. Reasonable and imminent apprehension of such contact i. A threat, no matter how frightening, if not accompanied by circumstances indicating plaintiff in a position of immediate harm, the apprehension is not imminent. ii. The reasonable apprehension is based on the reactions of a reasonable persons. c. Transfer of Intent Doctrine: the intent established of an assault (to 1 person) can transfer to establish the intent for a batter to another, resulting from the same actions. III. False imprisonment a. The defendant acts intending to confine plaintiff within boundaries fixed by defendant Torts Outline Conway b. Defendant’s actions result in confinement of plaintiff. c. Plaintiff is conscious of the confinement OR is harmed by the confinement. d. Shopkeeper’s privilege: i. Reasonable belief ii. Reasonable Manner iii. Reasonable Time IV. Trespass a. Land i. Plaintiff owns or has an exclusive possessory interest in the land ii. Defendant intentionally acts causing a physical invasion, or failure to leave, the land of another. 1. A trespasser need not be aware they are trespassing, just that they intent to be where they are. b. Chattel i. Dispossessing plaintiff of the chattel or ii. Using or intermeddling with plaintiff’s chattel (and thereby damaging the chattel or harming plaintiff). c. Conversion i. Depriving plaintiff of the possession of his chattel or ii. Interfering with plaintiff’s chattel in a manner so serious to deprive plaintiff of the use of the chattel. iii. Factors considered: 1. Extent and duration of the control 2. Defendant’s intent to assert a right to the property; 3. Defendant’s good faith 4. The harm done and 5. Expense or inconvenience caused. V. Intentional infliction of emotional distress a. Outrageous conduct by the defendant. b. The defendant’s intention of causing, or reckless disregard of the probability of causing emotional distress. c. The plaintiff’s suffering severe or extreme emotional distress; and d. Actual causation of the emotional distress by the defendant’s outrageous conduct. e. Prima facie claim: i. Defendant intentionally or recklessly ii. Through outrageous conduct iii. Caused plaintiff severe emotional distress. Defenses to intentional torts I. Consent a. Expressed or implied i. Fraud potentially destroys defense of consent. b. Consent implied by law i. Used in emergency situations II. Self defense a. Self-defense is valid when the defendant has reasonable belief that the force used was necessary under the given circumstances III. Defense of others Torts Outline Conway i. One can use reasonable force when protecting third parties who are threatened with any kind of immediate harm. IV. Defense of property i. A reasonable amount of force necessary to protect the interest is acceptable, however, in no event can force designed to cause death or serious bodily injury be used to justify protection of mere property rights. Negligence I. Duty a. Standard of care of reasonable and prudent person under the circumstances i. Taken into consideration: 1. Extraordinary skill and knowledge 2. Physical disability ii. Not taken into consideration: 1. Mental disability 2. Hindsight b. Children i. Standard of care for a child: child is expected to exercise the same standard of a reasonable child of the same or similar: 1. Age 2. Intelligence/knowledge 3. Experience ii. Unless a child is engaged in activity normally reserved for adults such as driving, then the adult standard of care is applied. c. Sudden Emergency i. Will only apply if there was no prior negligence on part of the defendant’s actions. d. Special Duty rules: i. Generally, no duty to affirmatively act or aid others, unless: 1. Responsible for placing one in perilous position. 2. Undertake to act for another’s protection 3. Special relationship that compels action a. Common carriers/ innkeepers/ possessor of land who holds it open to the public. ii. Rescue doctrine- allows an injured rescuer to sue the party which caused the danger requiring the rescue in the first place. 1. Reasonable manner and belief. iii. Firefighter rule 1. Firefighters and police officers who are injured may not recover based on the negligent conduct that require their presence. 2. Unless they are injured outside the reason they are responding. iv. Good Samaritan Statues: Generally, relieves a defendant from liability if they were rendering emergency care and caused some injury. 1. Are designed to remove the threat of litigation as a potential disincentive to assisting one in need. v. Duty to protect 3rd parties from another’s harm 1. Health care workers Torts Outline Conway a. The duty to warn, arises when i. a special relationship arises, ii. the threat is imminent and iii. there is a specific target. b. Healthcare providers generally have a duty to warn specific people who are likely to be harmed by the patient’s illness. i. an affirmative duty to warn identifiable third persons in the patient’s immediate family against foreseeable risks emanating from a patient’s illness. 2. Employer-Employee a. An employer who exercises control over their employee has a duty to comply with the standard of care of a reasonable and prudent employer to prevent the employee from causing an unreasonable risk of harm to another. vi. Negligently inflicted emotional distress: duty to avoid negligent infliction of emotional distress may be breached when defendant creates a foreseeable risk of physical injury to plaintiff. 1. Zone of danger rule: plaintiff must show that their distress has been caused by a threat of physical impact—and most courts require that plaintiff’s emotional distress manifests itself in physical symptoms 2. Dillon Rule/bystander Rule: bystander outside the “zone of danger” can recover so long as a. plaintiff was present at the scene of the injury. b. plaintiff personally observed or perceived the event; and c. plaintiff and the person injured are closely related. i. “Closely related” means spouse or child. vii. Doctrine of primary assumption of risk-Inherent Risk 1. One who takes part in an activity accepts the obvious dangers of it that are inherent in that activity 2. Primary assumption of the risk only applies in 2 types of “inherent risks” a. Positive, desirable risks of the activity b. Negative risks of the activity that cannot be eliminated through the exercise of reasonable care. e. Duty based upon the victim’s status i. Trespassers 1. Adult trespassers a. A landowner must refrain from reckless, willful, or wanton conduct toward a trespasser. b. If a trespasser comes onto the land to commit a crime, the landowner’s duty is to not intentionally injure the trespasser. 2. Child trespassers Torts Outline Conway a. Attractive nuisance doctrine: Landowner is subject to liability for harm to children caused by artificial condition on land if: i. the owner of the artificial condition knew or reasonably should have known that children are likely to trespass, ii. the owner realized or should reasonably realize that the condition involved a risk of harm or bodily injury to a child, iii. due to the child’s age, they did not realize the danger of the condition, iv. the utility of maintaining the condition and eliminating the risk is no burden to the owner, and v. the owner failed to exercise reasonable care to eliminate danger or to protect the child on their property. ii. Licensees 1. Social guests are licensees. 2. Licensee is one who enters the property of another with the purpose or business for their own benefit. 3. Duties of Landowner’s: a. No gross negligence and b. Warn or make safe any dangerous conditions of which landowner is aware and licensee is not. iii. Invitees 1. One who enters at an expressed or implied invitation a. Land open to public b. Has business with landowner 2. Duty owed a. Exercise ordinary care to protect from risk which the owner is actually aware or reasonably should be through inspection. b. No duty to warn of open and obvious dangers c. Duty to protect from 3rd party criminal attacks of which the landowner had i. Actual awareness ii. Foreseeable risk. II. Breach a. The learned hand formula i. Burden < Probability * Loss 1. Burden of taking percussions against an accident 2. Probability that an accident will occur 3. Loss seriousness/magnitude of damages or injury ii. Where burden is less than P*L the actor breached duty of care iii. Where burden is greater than P*L no breach of duty of care b. Negligence per se Torts Outline Conway i. Prima facie claim 1. D violated statute prohibiting certain conduct 2. Statute was intended to protect against harm for which recover is sought 3. Person harmed was part of the class of persons for whom the statute was intended to protect. ii. Negligence per se take care of the duty and breach elements of negligence the plaintiff must then prove causation and damages iii. Excuse: 1. An excused violation of a legislative enactment or an administrative regulation is not negligence. 2. Unless such enactment or regulation is construed not to permit such excuse, its violation is excused when a. the violation is reasonable because of the actor’s incapacity; b. he neither knows nor should know of the occasion for compliance; c. he is unable after reasonable diligence or care to comply; d. he is confronted by an emergency not due to his own misconduct; e. compliance would involve a greater risk of harm to the actor or to others. c. Industry & Personal custom i. Industry & Personal custom while relevant will never change or dictate the standard of care for negligence. d. Res Ipsa Loquitur i. The nature of the accident suggests that it was probably due to negligence ii. Defendant had exclusive control over whatever caused the accident (such that it was defendant’s negligence) and iii. Plaintiff lacks direct evidence of the event relative to the information available to defendant. e. Recklessness i. A person acts with recklessness in engaging in conduct if: 1. they know of the risk of harm created by the conduct 2. the precaution that would eliminate/reduce the risk involves burdens so slight. 3. person’s failure to adopt the precaution is a demonstration of their indifference to risk. III. Actual cause “but-for” i. But-for test, the harm to plaintiff would not have occurred but for the defendant’s negligence. ii. The point of all of this is that but-for cause is not a search for a lone cause — there is no such thing. It is merely an analysis of whether the defendant’s act or omission of negligence is one of the essential links in the chain of causation that led to the harm. b. Multiple sufficient independent causes Torts Outline Conway i. Each of the defendant’s conduct separate from the other was sufficient to have caused the harm for which the plaintiff seeks recovery. c. Alternative liability doctrine: i. (a) there be more than one tortfeasor, ii. (b) all tortfeasors are engaged in similar conduct, iii. (c) plaintiff was injured as a result of the actions of one of the tortfeasors, and iv. (d) plaintiff name all of the tortfeasors to the action. IV. Proximate cause: the cause of an injury which is a natural and continuous sequence unbroken by any efficient intervening cause tied to the negligent conduct of the defendant. a. Direct cause: i. Defendant is subject to liability for those consequences that are a direct result of Defendant’s tortious conduct, whether or not foreseeable b. Foreseeability: i. The type of harm must be foreseeable when linked to the type of negligence of the defendant’s actions. c. Superseding v. Intervening Superseding Intervening Defendant is not liable Defendant is liable Does break the chain of causation Does not break the chain of causation Type of harm is unforeseeable Type of harm is foreseeable Has no relation to the negligence at hand. Has relation to the negligence at hand V. Damages (generally) a. Special Economic Damages i. Economic harms caused by Defendant’s misconduct 1. Lost wages/earning capacity 2. Medical expenses (past and future related to injury) 3. Property repairs (or lost FMV of property) a. Heirlooms are recoverable. b. General Noneconomic Damages i. Injuries for which there is no market value 1. Pain and suffering 2. Emotional anguish/mental distress 3. Disfigurement/ physical impairment or disability 4. Loss of reputation 5. Loss of spousal or parental consortium c. Wrongful Death statute i. Designed to compensate for what the decedent’s family endured after the death. i.e. loss of consortium. d. Survival Statute i. Claim survives for the benefit of the estate. ii. Damages the victim incurred up until their death. VI. Limitations on Actual Damages a. Doctrine of failure to mitigate damages. Torts Outline Conway i. Imposes post-tort duty on plaintiff to exercise reasonable care to treat or lessen the ultimate harm plaintiff suffers and for which plaintiff can expect to receive compensation from the tortfeasor. b. Collateral Source rule i. Declares that plaintiff’s receipt of benefits from someone other than the tortfeasor (i.e. insurance) to help pay or reimburse Plaintiff for some of her losses should not work to lessen the tortfeasor’s liability for all the harm caused. c. Seat Belt defense (a matter of comparative fault) i. The use of seat belts is now admissible in court. VII. Affirmative Defenses a. Contributory Negligence i. Plaintiff’s own negligence bars recovery. (relieves defendant from liability). ii. For a defendant to succeed with this defense they must meet the elements of negligence: duty, breach, causation, and damages. iii. Is a very strict rule, if the plaintiff has any notion of contributory negligence, they cannot recovery against the defendant. b. Comparative fault i. Pure comparative fault 1. Plaintiff’s contributory negligence/assumption of the risk “shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion…” 2. The recovery will be reduced the percent the plaintiff is at fault. ii. 50% comparative fault 1. Plaintiff can only be equal to 50% or less at fault to recover. 2. The recovery will be reduced the percent the plaintiff is at fault. iii. 49% comparative fault 1. Plaintiff can only be equal to 49% or less at fault to recover. 2. The recovery will be reduced the percent the plaintiff is at fault. c. Expressed Assumption of the Risk 1. Requires: a. Public policy hurdle: Release doesn’t offend public policy. b. Drafting hurdle: Release language is clear and unambiguous and conspicuous. d. Secondary implied assumption of the risk (completely bars plaintiff’s recovery) i. The defendant has been negligent AND the plaintiff is aware of the negligence and proceeds anyway. VIII. Damages Generally a. Remittitur i. Trial court advises the plaintiff can either accept a reduction in damages or court will grant new trial. ii. All court have power of remittitur. b. Additur Torts Outline Conway i. Trial court gives defendant the choice of either accepting an increase to the damages award (when the jury’s is too low in light of the evidence) of court will grant new trial ii. Federal courts do not have the power of additur. c. Nominal Damage ii. For negligence there must be actual damages, so not nominal damages iii. For intentional torts, nominal damages apply. d. Punitive damages iv. damages assessed in order to punish the defendant for outrageous conduct and/or to reform or deter the defendant and others from engaging in conduct similar to that which formed the basis of the lawsuit.