Torts Outline 1-3 PDF

**Goals of tort Law** 1\. Righting wrongs/justice (moral duty) 2\. Compensation to injured parties 3\. Deter unreasonably risky or wrongful conduct a\. He's done everything to avoid. No unreasonable risks to deter. b\. Would deter all peeps with epilepsy from driving. i\. Benefit of peeps with...

**Goals of tort Law** 1\. Righting wrongs/justice (moral duty) 2\. Compensation to injured parties 3\. Deter unreasonably risky or wrongful conduct a\. He's done everything to avoid. No unreasonable risks to deter. b\. Would deter all peeps with epilepsy from driving. i\. Benefit of peeps with epilepsy driving outweigh costs ii\. Driving is useful; permits people to be economically independent and productive. 4\. Other social goals a\. Promote independence among persons with disabilities **Intentional Torts** **Battery** **[Battery]** An unconsented to harmful or offensive contact that someone does with purpose or knowledge is substantially certain to result A person is liable for battery when ○ They act with the ***intent*** to cause a harmful or offensive contact (or imminent apprehension of such contact) of the person of another AND ○ A harmful or ***offensive contact*** directly or indirectly results **[Intent of battery]** A person has intent if they acted with ○ Purpose of causing H/O contact OR ○ Knowledge that such H/O contact was ***substantially certain*** to result **[Offensive contact of battery]** Offensive = contact that offends a reasonable person's sense of dignity ○ Contact contrary to all good manners, outside norms of behavior **○ Harmful or injurious to a reasonable person's sense of dignity** **The offensive test is objective** **[Cases: offensive contact of battery]** [*McElhaney v. Thomas*--] Thomas's Ford F-150 truck was coming behind McElhaney. She was walking next to the curb, heard the tuck, so she stepped up onto the curb. Front passenger tire rolled onto her feet and trapped her and she realized she couldn't stand or walk. Thomas claims he just wanted to play a practical joke on her. ○ **When thomas drove up on the curb with his f-150 intending to bump her he acted with the intent to cause offensive contact BECAUSE being hit by a friend's F-150 truck is terrifying and beyond the bounds of acceptable practical joking.** ○ Direct contact * [Cohen v. Smith]* -- woman giving birth did not want to be seen or touched by a person of the opposite sex while naked. The doctor assured them their wishes would be respected, but a male nurse did in fact and see and touch her. ○ Held → An offensive touching occurs if the tortfeasor knew of a person's susceptibility to the touching, even if the touching would not be offensive to a person of ordinary sensibilities. ○ Direct contact * [Kumar v gate gourmet]* ○ Change meatballs to turkey then change back to pork meatballs and don't tell employees after they said they could not eat pork for religious reasons. ○ They informed the employer of the situation and the employer still decided to switch back to pork. He ignored their religious beliefs. Held → Offensive to a reasonable person's sense of dignity because they don't want to eat pork meatballs and they are without knowing it ○ Indirect contact **[Harmful contact of battery]** Causes injury, physical impairment, pain, or illness **[Cases of harmful contact of battery]** * Garratt v. Dailey* ○ A 5 year old is taken to the backyard of Garratt\'s house and pulls a chair out from underneath Ruth, she falls because she goes to sit down and no chair is there, and she breaks her hip. Brian says that he moved the chair without the purpose to make the plaintiff fall, he wanted to sit in the chair himself but he couldn't put the chair back in time. ○ Legally does age matter? → no so long as can prove intent ○ Does age matter practically? → YES because his age is considered in whether or not he had the knowledge she would sit and fall ○ Court held → Yes. A five-year-old child may be held liable for battery if she possessed the necessary intent ○ Indirect contact * Eichenwald v. Rivello* ○ A reporter has criticized donald trump and one of trump's followers wants to get back at this guy for his posts. Reporter has written online that he has epilepsy, commonly triggered by strobe lights. Rivello sends guys a twitter message that E clicks on that is a gif of a strobe light and causes E to have a seizure ○ Assuming this is a stretch, why did the court find that this could constitute a contact? ○ Held → Yes contact He intended to cause real physical harm to this reporter, had purpose and malicious intent. Using a gif with the intent to cause another person with epilepsy to have a seizure counts as a physical contact ○ Indirect contact **Cases -- transferred intent** *** Baska v. Scherzer*** ○ Scherzer and Madrigal got into a fight at a party at Baska's house and she tried to break it up, getting punched in the process causing her to lose several teeth and experience damages to her neck and jaw. Scherzer and Madrigal both testified that they did not intend to strike or injure Baska and their intent was only to injure the other defendant. ○ Court held → yes on hook for battery because intended to batter one another so that intent transfers. Just because defendants struck the plaintiff does not change the fact that their actions of punching were intentional. **Intentional Torts** **Assault** **[Assault:]** An actor commits assault when they act intending to cause reasonable apprehension of imminent, harmful, or offensive contact with the person of another \[or intending to cause harmful or offensive contact\] AND Reasonable apprehension of imminent harmful/offensive contact directly or indirectly results **[Offensive contact:]** Harmful or injurious to a reasonable person's sense of dignity **[Harmful contact:]** Causes injury, physical impairment, pain, or illness **[Intent of assault:]** Purpose of causing apprehension of imminent H/O contact OR Knowledge that apprehension of such imminent H/O contact was ***substantially certain*** to result **[Apprehension]** The belief that harmful or offensive contact is going to happen **[Transferred intent:] (applies to all intentional torts)** If I intend one tort, but a different tort results, the intent carries over If I intend a tort against one person, but it happens to a different person, the intent carries over If I intend an assault and battery happens then I am on the hook for battery Intend to tort someone but tort them in other ways or tort someone else you are liable Enough that if actor intends to produce the effect to the person of another and it is harmful to that person Snowball fight, aim for one persons but it hits another person, transfer to person they actually hit with it **[Is there always assault before battery?]** NO, reasonable apprehension must occur Sucket punch someone? No apprehension this would occur. Same with punching someone in their sleep **[Cases:]** * Cullison v. Medley* ○ Father threatens to jump astraddle Cullison if he doesn't stay away from his daughter. Mom pretending to be armed. No one touches or advances on him. Problem came down to was the use of conditional language which trial court said did not express any present intent to harm Cullison and was therefore not an assault. ○ Offensive assault, fearing for his life ○ Court held that there was **reasonable apprehension** of harmful or offensive contact because there are more than words here, there is also a threat of violence. This situation is different from just saying to stay away from her because they showed up in the middle of the night with weapons to threaten him and frighten him **Intentional Torts** **False Imprisonment** **[False Imprisonment:]** Someone is liable for FI if they ○ Intentionally *confine* another by Force Threat of force → pointing a gun at someone False assertion of legal authority (FALA) → I am a cop and you have to stay, say the cops are on their way. Not just say I'm going to call the cops "Duress" (fuzzy) (compulsion and not mere inconvenience)→ example from book, held clothes hostage ○ Within a limited area (bound in all directions, if free to proceed in any direction then there is not FI) ○ Without privilege or consent ○ For any appreciable time Feeling confined for even a second counts ○ P is aware of confinement or harmed by it **[Cases:]** * McCann v Wal-Mart* Facts that show WM has committed FI because: ○ Intent to confine Employees walked in front of cart and blocked exit → threat of force Say that the cops are coming and that they have to go with them **→ false assertion of legal authority because they are not, they called the** **security guard** Cops not showing up is key Physically put their hand on the cart When they are trying to prove who they are and provide ID the store people are saying no you still have to stay and they stay with them the whole time Don't let the little boy go to the restroom Pulled them to the corner of the store → confinement to a limited area ○ They were aware of the confinement ○ It was for an hour and a half * Knowlton v Ross* ○ P must be actually or physically constrained and a closed door doesn't satisfy that requirement unless threat is going to be used ○ Ok yeah I think for knowlton she decided it wasn't false imprisonment bc technically she walked into the room by herself and taking her ring did not qualify as duress and then she was allowed to go ○ It isn't the strongest case for FI even tho at the time I thought it was LOL ○ During the time period it might have been more difficult for women to like "disobey men" and such **Intentional Torts** **Defenses to intentional torts** **[Affirmative defenses:]** When are they relevant? ○ The court has already reached the conclusion that the defendant has already committed assault, battery, FI, etc. ○ Then say you're right but nevertheless I am not paying for damages because I can establish a/d Defense proves a/d because we have wall of a tort, to overcome that it only makes sense for defendant to prove ○ Still preponderance of evidence Legal consequence of a/d? ○ If they proved an a/d they avoid liability **[Self-Defense:]** ** Elements, if they can prove:** ○ Defendant perceives an ○ Actual or reasonably believed apparent threat to their safety (eg a battery, an assault, a false imprisonment with confinement secured through battery or assault) ○ The force employed was not excessive in degree or kind Must be proportionate (not element just extra note) ** Point of SD** ○ To retreat and get yourself out of the situation ○ If one punch will do it, then leave and don't hit again About warding off threat not retribution ** Extra to know** ○ If you started the fight you cannot used self-defense, cannot be initial aggressor **[Cases:]** * Grimes v Saban* and the motion for summary judgment ○ The girls had to different POV's on what happened, but agreed that: S and G arguing in the kitchen. S upstairs and locked herself in her room. S posts no one like grimes on FB. **○ Saban** → G goes up to S room and is yelling through door and pounding to get her to delete the post. S opens the door and says I deleted it as she opens the door, G advances on her while she is saying this. S pushes her back, G grabs S throat and is pushing back on her. Punch comes in, someone's hands on your throat you get to punch them (not excessive force). But then S keeps punching, maybe excessive force now, depends on whether the punches were enough to stop G and if G is punching back **○ Grimes** → G says when door opens she stepped back and S stepped out of the room and shoved her phone in her face saying she deleted it ○ G is saying S is initial aggressor. G says Idc, we're done, you're crazy. S pushes her away with both hands against door jam. G put one hand on throat and chest in order to push S away. S started punching her and hit her more than 5 times. Need 2 people to remove S off of G ○ Takeaway = initial aggressor and exerting too much physical force **[Stand your ground laws:]** Remove the duty to retreat before force, even deadly force, in self-defense Civil immunity in certain states for criminal prosecution Allowed to ward off attack in your own home **Shopkeeper's Privilege** A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant's premises. **Intentional Torts** **Consent** **Serves a dual purpose, dual nature:** Lack of consent is implied through the circumstances, but in some cases it is important for the plaintiff to prove nonconsent Formally part of P's case: ○ Eg cohen v smith -- nurse touches orthodox Jewish woman If can't prove that the nurse knew then it is implied consent ○ An a/d It can be (demonstrated) Express or implied through gestures, context, or even silence Withdrawn, either expressly impliedly (withdraw must be communicated otherwise other can continue) ○ It has a scope Medical context. I consent to kidney operation but took wrong kidney ○ Even if plaintiff clearly consented, court may invalidate consent for other reasons Incapacity to consent → fraud, minor, intoxication, mental condition, physical violence, power imbalance **Basic contours of consent-- defendant's reasonable perception** Defendant may express consent by words or acts that are reasonably understood by another person as consent Defendant may also express consent by silence or inaction if a reasonable person would understand that the silence or inaction intended to indicate consent ○ Did the defendant reasonably believe that the plaintiff had consented? Consent can also be ○ Implied by silence or inaction if a reasonable person would understand that the silence or inaction intended to indicate consent **Subjective standard** **Express v implied consent** Expressly→Word approximating consent Implied→ circumstances or gestures Example: Defendant punches plaintiff but says plaintiff consented to box ○ Expressly→ let's step in the ring and box ○ Implied→ start putting on your gloves Convey withdrawal of consent? Say it, can't just step back in this case because it's boxing, call time Implied by law (eg common law are re: medical emergency) **Scope of consent** Consenting to one thing doesn't necessarily imply consent to another **Withdrawal of consent** Plaintiff can withdraw consent at any time Can be implied as well **Consent can be invalid** Physical coercion (jailer and inmate, jailer has power to keep you in jail or use force) Jailer will never get consent from someone is incarcerated Economic coercion -- not the case in *Wulf* though because there was no threat to pull her paycheck **Cases:** *Wulf v Kunnath* ○ Kunnath thumped Wulf on the nape of her neck in response to a joke she made about him. On at least ⅔ occasions Wulf allowed Kunnath to thump her so this strike on the back of the neck isn't too different. She has thumped him too. Has a horseplay environment. Wulf sued for battery and injury. ○ Court held → If she wants to withdraw she has to communicate this with him. Silent consent, don't have to consent every time, history of casual relationship ○ Implied consent * Robins v Harris* ○ Robins was a female inmate at a county jail and defendant Soules was a new corrections officer on the 3rd shift. S ordered a lockdown requiring all inmates to stay in their cells. S summoned R and S grabbed R by the arm and brought her into the shower room where she performed fellatio on him. ○ R sued for battery. ○ Court held → S raised an affirmative defense of consent, which he could not do as a jailer. Power imbalance here because robins is an inmate and cannot consent to any sexual act with a jailer because he has an authority over her. * Hunt v Zuffa* ○ Mixed martial arts fighter brough claim of battery against his competitor for use of banned performance enhancing drugs. The plaintiff believed he would have avoided injury if not for the doping. ○ Court held → Yes Hunt did consent to the physical contact regardless of the performance enhancing drugs because Lesnar's conduct was not atypical (as in his fighting skill) and his injuries did not exceed those that are typical for MMA fighters. Z's doping doesn't alone establish that his conduct exceeded ordinary range of activity in MMA. Doping is common here unfortunately ○ Implied consent *Kaplan v mamelak* ○ Claimed the dr. operated on the wrong herniated disks in his back ○ Court held → Yes this operation did lack consent because the dr. did not have permission to operate on any disk other that T8-9 ○ Expressed consent, scope of consent Hudgens hypo ○ Volunteers at first a/d ○ Lies down and coworkers put their hands on his legs and arms, consent here through inaction? Yes ○ Did not consent to being waterboarded, withdrawal of consent was shown through his struggle ○ Implied consent/maybe expressed? **Negligence** **Elements of Negligence** Duty: ○ When engaging in risk creating conduct (managing our persons or property), we owe everyone a duty of reasonable care ○ The defendant owes the plaintiff a duty of reasonable care *under the circumstances* Breach: ○ The defendant breach this duty ○ 1) foreseeability, a reasonable and prudent person would foresee that their actions might cause harm to persons or property; 2) defendant's conduct fell below standard of care to minimize or avoid risks a RPP would have avoided/minimized Actual Harm: ○ For there to be actual injury/harm, the P must prove that they suffered a legally cognizable injury. Factual Cause: ○ Defendant's conduct actually contributed to the plaintiff's injury Scope of Liability: ○ Harm the defendant caused is one the law will hold the defendant liable for because it's of the type of that defendant's negligence would cause Exceptions to duty ○ People with physical disabilities and kids doing kid stuff ( a reasonable kid of the same or similar age, knowledge, skill, and experience of the defendant) This standard will vary!! Contextualized standard ○ Specialized expertise in the area that their action was in hold them to a level of what someone in their position with their knowledge would have done Not contextualized ○ NPS: a statute sets the standard of care **Basic standard for assessing negligence** *Someone creates an unreasonable risk of harm when* A reasonable prudent person would foresee that their action might cause harm A reasonable prudent person would take measures to mitigate or avoid risk altogether ○ Amount of care one takes may vary→ standard is always the same for negligence, but the amount of care a RPP should exercise varies Cases * Hammontree v Jenner* ○ Jenner crashed into a bicycle shop after he suffered from a seizure while he was driving. It was not foreseeable because the doctor cleared him a month earlier and he was seizure free for 8 years and it was reasonable because he complied with the CA law of his condition when it came to driving and he was on medication. ○ Held (I think it was a hypo) → he did use ordinary reasonable care to minimize the risks of foreseeable harms from his driving * Stewart v Motts* ○ Plaintiff was helping the defendant (repair shop) by pouring gas into the carburetor, the car backfired and caused an explosion that resulted in the plaintiff suffering from burns to his upper body. ○ Plaintiff requested for the judge to instruct the jury that there was duty for "extraordinary care" in this case ○ Held → the judge shouldn't have instructed the jury that there was an element of "extraordinary care" because the instructions recited set the proper standard when the "higher degree" of care in regards to certain circumstances was stated. * Hills v Sparks* ○ Was at an exhibit where he drove a dangerous machine he knew how to operate and instructed sister to ride on the ladder. Despite his knowledge and experience with the machine, still had his sister still ride on the ladder, and she fell off and he ran her over ○ Held → if the actor has more than the minimum standard of a reasonable person then they are required to exercise the superior qualities that they have in a manner reasonable under the circumstances **** *Stevens v Veenstra* **○** 14 year old defendant took a driver's education course. D made a right turn too sharply and hit the P. Trail court gave jury instructions that a minor is not held to the same standard as an adult but instead is judged by the reasonable care a careful minor of age, mental capacity, and experience of the D would use under the circumstances and they found that he was not negligent ○ Court held → Yes, it was wrong for the jury instructions to say that the defendant was not held to the same standard of conduct as an adult because of the frequency and sometimes catastrophic results of automobile accidents, it would be unfair to the public to permit a minor operating an automobile to observe any standard of care other than that expected of all others operating automobiles ○ KIDS DOING KIDS THINGS * Shepherd v gardner wholesale inc.* ○ Shepherd tripped over a raised concrete slab in the sidewalk in front of defendant's business. S suffered from cataracts and could not see well. A person with impaired vision is not required to see what a normal person can see and one is not guilty for negligence by using the public sidewalks with the physical inability to see what a person with normal vision could see ○ Court held → Under a physical disability like this they are not expected to exercise a higher degree of care to avoid injury **Negligence** **Duty** **Risk v non risk creating conduct** Risk creating conduct: ○ Default RC; variations (kids, physical disabilities) ○ Doctors and other specialized professions---custom of the profession Non risk creation: [no] duty of care, unless: ○ Premises liability ○ Duties to rescue/protect ○ Duties to control **Risk creating conduct** Default of reasonable care The default reasonable care standard allows for contextualization such as with **kids doing kid things** or those with **physical disabilities** that are not age related declines. Doctors and those in other specialized professions have a default reasonable care standard that adheres to the customs of the profession. When engaging in risk creating conduct (managing our persons or property), we owe everyone a duty of reasonable care The defendant owes the plaintiff a duty of reasonable care *under the circumstances* **Non risk creating conduct** Generally, when the defendant creates no risk of physical harm to persons or property, the defendant owes no duty. However, there are exceptions ** [Landowner premises liability]** ○ Invitees Museum guests, maybe tripping on some hazard Enter property to conduct commercial business ○ Licensees Any guest you invite over. Not there for your commercial benefit. Obligated to warn of dangers they know of ○ Trespassers (not invited on land) Flagrant -- wilful wanton ○ Cal. Civ. Code §1714 imposes a general duty of reasonable care Statutes trump common law rules! ○ If status categories are abolished, might an entrant's "status" still affect their recovery? Yes! Whether a condition on your land might foreseeably cause injury! ** [Duties to rescue/protect P]** ○ **Special relationships:** have the element of reliance and reduced ability to care for selves. Can't just get of the train. At school you don't have access to mom and dad, can't just leave, and school here to care for you. They become your parents. Employer has power over you Common carrier/passenger, Innkeeper/guest, Business/invitees, Employer/employee, School/students, Parent/child, Landlord/tenant, Custodian/custody ○ **Creating P's peril regardless of fault:** duty to rescue and abate peril Playing a game and you push someone into water and they can't swim Someone runs out in front of car, no warning, nothing to drink, going speed limit and you hit them ○ **Creating continuing risk of harm regardless of fault** **** Hit deer without fault, have duty to abate hazard to prevent harm ○ **"Voluntary undertaking to act" and P relies on D's efforts** ** [Duty to protect victim of crime by a 3rd party]** generally no duty to protect but there are exceptions: **○ Special relationships:** School and student, Hotels and guests, Employer and employees, "Legal and voluntary custodians" (Parent and child (parent subs--like babysitter) prison/prisoner), Common carriers--passengers, Custodians with superior ability to protect the P (Hospitals -- patients, Nursing homes -- residents), Landowners--tenants in common areas (varies by jurisdiction) and landowners--businesses (varies by jurisdiction) too **○ Tests for landowners:** Prior similar incidents (specifically daytime robberies in the parking lot, many, and similar) Recency, frequency, similarity of prior crimes (requires a high degree of similarity) "Totality of circumstances" test (misnomer) Had there been car break ins during day time in the parking lot at sams and frequent, a court using this test might be willing to find sam\'s club had a duty to protect her from a robbery Prior similar incidents BUT Lack of PSI won't preclude if generally foreseeable (e.g., prior property crimes could make violent crimes foreseeable) Balancing (T of C ++; totality of circumstances) (CA and posecai) T of C weighed against burden of protection Think of how burdensome it would have been to protect from this crime Sam's could have hired security guards to patrol parking lot, passive things wouldn't have helped in posecai because it was daytime Sounding a lot like breach ie B\