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I. Intentional Torts
At common law, parents are not vicariously liable for the torts of their children simply
by virtue of their being parents. (38)
Transferred intent (1) meaning to hit one person, but hitting another (44); or (2)
intending to only commit an assault but accidently hitting the person, committing battery. (50.9)
Battery
Snyder v. Turk (30) Surgeon Shoved Face of nurse during surgery
Rule: To be liable for battery, a person must both intend to cause and
actually cause a harmful or offensive contact, defined as conctact
offending a reasonable sense of personal dignity.
Cohen v. Smith (30) Nurse touches naked body of religious women
Rule: An offensive touching can occur if a tortfeasor has knowledge of a
persons unusual susceptibility and the tortfeasor then violates that
susceptibility, even if a reasonable person would not be offended by the
touching.
Policy: Protecting personal integrity has always been viewed as an
important basis for battery.
Garratt v. Dailey (35) Little kid pulls chair out from under
Rule: A minor may be held liable for the tort of battery if she acted
intentionally, with knowledge to a substantial certainty that her actions
would cause a harmful or offensive contact to another person.
White v. Muinz (39) Old person w/ dementia punches caretaker in nursing home
Rule: In a dual intent jurisdiction, a tortfeasor must both intentionally
contact another person and intend that the contact be harmful or offensive
to be liable for battery.
Rule: Take into consideration a persons mental capabilities and other
relevant personal characteristics (E.G.: mental illness) to determine their
Assault
Cullison v. Medley (46) Family shows up to Ps trailer, threaten him.
Assault only requires mental or emotional damages, caused when a person
acts while intending a harmful or offensive contact or acts while intending
to produce a reasonable apprehension of an imminent battery. A jury could
conclude that Cullisons apprehension was reasonable. Cullisons failure
to allege physical harm is immaterial, and Cullison may recover for his
mental and emotional harm.
P needs to recognize that a contact will possibly occur. Therefore, if this
PO wasnt here Id punch you, isnt an Assault.
Rule: Assault requires that a person acts while intending a harmful or
offensive contact with another or acts while intending to produce a
reasonable apprehension of an imminent battery, causing mental or
emotional damages.
False Imprisonment
This is a trespassory tort, so P can recover damages even if she sustains no harm.
McCann v. Wal-mart (51) Mother of children accused of stealing, forced to stay.
Rule: False imprisonment occurs when a tortfeasor, using any means of
duress, intentionally confines a victim in a boundary fixed by the
tortfeasor, and the victim is either aware of or harmed by the confinement.
Negligence (89-239)
Elements of negligence (92)
Element I: Duty of Care
Physical disability changes duty of care to that of a reasonable person with
the same disability. (98) R.3d 11(a)
Intoxication (99.6)
Sudden incapacitation (99.7) R.3d 11(d)
Expert knowledge: Higher, has to exercise superior qualities. (104)
Chaffin v. Brame (108) P blinded by high beams of other driver hit unlit
truck in road and was not guilty of Con. Neg. as
a matter of law.
Rule: The general test for negligence is whether a person acted as a
reasonable, prudent person under like circumstances.
Negligence Per Se (110 119) Rule & Policy R.3d 14: (88); Excuses 15 (93)
1. Removes jury from question of duty and breach of duty. However,
jury must still determine factual question of whether D violated the
statute in question? (116.6)
2. Courts may decide to adopt a civil standard of conduct. (116)
3. Minority views (111)
4. Applies to regulations and ordinances in must jurisdictions. (112)
5. NPS doesnt apply to child standard of care, but evidence. (119.3)
6. Does not matter if people ordinarily violate statute. (119.4)
OGuin v. Bingham County (112) - P enter landfill through whole in fence.
Rule: A statutory duty of care will replace the reasonable person
standard in a negligence action only if the statute or regulation
clearly defines the standard, and the statute or regulation is
Warren v. Jeffries (169) Car on incline rolls back, kids jump out and
dies. No res ipsa loquitur because alternate
explanations for alleged negligence.
Rule: For the doctrine of res ipsa loquitur to apply, an accident
must have been more likely than not caused by the defendants
negligence. Res ipsa loquitur shifts the burden of proof on the
issue of negligence to the defendant.
Giles v. City of New Haven (171) Elevator/ Exclusive Control No More
Rule: The extent of a defendants control over an injury-causing
instrumentality is merely a factor that may influence a finding that
the defendants negligence was more likely than not the cause of
the plaintiffs injury.
Element 3: Compensable Harm
Right v. Breen (177) - Auto-collision, P doesnt allege vehicle injuries.
Rule: To succeed on a negligence action, a plaintiff must prove
actual damages.
Policy: It is difficult to imagine what purpose would be furthered
by permitting anyone who is jostled in a crowd or otherwise
suffers some unintended contract with his person or injury to his
dignity to set in motion the judicial machinery necessary for a
recovery of nominal damages.
Element 4: Factual Cause
Hale v. Ostrow (180) Old woman tripped going onto road b/c of bushes.
Rule: A plaintiff must show causation in fact to succeed on a negligence
claim, by proving that the harm would not have occurred but for the
defendants negligence.
Salinetro v. Nystrom (181) X-rays of pregnant women who didnt know she
was.
Rule: If the harm would have occurred in the absence of the defendants
conduct, the defendant cannot be liable.
Apportionment of Liability: Separate & divisible v. Single & indivisible.
(184).
Landers v. East Texas (186)
Rule: Single indivisible injury makes actors jointly and severally liable
and judgment can be pursued against any of them by P.
Substantial Factor Test
R.3d 27; Dobbs (189.2) When but-for doesnt work because there is other
conduct that could have caused injury, a substantial factor test can be used to
prove factual cause. However, Restatement doesnt like substantial factor. R.3d 27
cmt. J
Summers v. Tice (191) Hunting accident. Youll shoot your eye out!
Rule: Under the doctrine of alternative liability, two independent
tortfeasors may be held jointly liable if it is impossible to tell which one
caused the plaintiff's injuries, and the burden of proof will shift to the
defendants to either absolve themselves of liability or apportion the
damages between them.
Policy: When it is impossible to know which defendant was the actual
cause of an injury, both must be held liable to protect the plaintiff.
Otherwise, the plaintiff risks not receiving full recovery for his injuries.
The defendants are usually in a much better position than the plaintiff to
present evidence to exonerate themselves, and thus should bear the burden
of working out a fair apportionment of damages.
Mohr v Grantham (194) Lost chance
Rule: In Herskovits v. Group Health, 664 P.2d 474 (Wash.1983), the court
determined that a physicians failure to properly diagnose a patients lung
cancer, which diminished the patients chance of long-term survival from
39 percent to 25 percent, was actionable. To hold otherwise, noted the
court, would be a blanket release from liability for doctors and hospitals
any time there was less than a 50 percent chance of survival. In
Herskovits, the issue was not whether to recognize a cause of action, but
how to recognize a cause of action. Ultimately, the Herskovits court
concluded that the appropriate framework for considering a lost chance
claim was with a substantial factor theory of causation. The substantial
factor test is an exception to the general rule of proving but for
causation and requires that a plaintiff prove that the defendants alleged act
or omission was a substantial factor in causing the plaintiffs injury, even
if the injury may have occurred anyway. In Washington, the test has been
limited only to claims involving medical negligence. Treating the loss of a
chance as a cognizable injury allows a plaintiff to recover for the loss of
an opportunity for a better outcome while providing for the proper
valuation of such an interest. Here, the determination of the lost chance of
Rule:
Avila v. Citrus Community College District (279)
Rule:
Gladon v. Greater Cleveland Regional Trans. Auth. (301)
Rule:
Bennett v. Stanley (307)
Rule:
Kentucky River Medical Center v. McIntosh (312)
Rule:
Minnich v. Med-Waste, Inc. (318)
Rule:
Walski v. Tiesenga (329)
Rule:
Vergara v. Doan (334)
Rule:
Harnish v. Childrens Hospital Medical Center (342)
Rule:
Estate of Cilley v. Lane (400)
Rule:
Wakulich v. Mraz (406)
Rule:
Farwell v. Keaton (408)
Rule:
Rule:
Honda of America Mfg., Inc. v. Norman (582)
Rule:
Liriano v. Hobart Corp. (589)
Rule:
Bowling v. Heil Co. (599)
Rule:
Doomes v. Best Transit Corp. (606)
Rule:
Hymowitz v. Eli Lilly and Co. (632)
Rule: