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Torts Outline: Walker

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

intent. her age, infirmity, education, skill or any other characteristic


(41). Insanity, like infancy, is not a defense to intentional torts, but rather a
characteristic that must be considered in determining whether the actor
had the requisite intent.
Single intent v. Dual intent
Single only requires that the actor only willfully touched someone,
which caused a harmful or offensive result. Irrelevant if they
intended the contact to be harmful or offensive.
Dual, actor must intend to touch and intend for the contact to be
harmful.
Baska v. Scherzer (44) Girl punched breaking up a fight. Transferred Intent

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.

While confinement can be imposed by physical barriers or force, much


less will do. Threats of physical force can suffice. Threats can be explicit
or implicit. Confinement based on false legal authority can suffice.

Torts to Property (53-61)


Trespass to land (54-55)
P must prove:
(1) An ownership or possessory interest in the land,
(2) An intentional and tangible invasion
(3) Intrusion or entry by defendant onto the land that harms Ps
interest in exclusive possession
Personal entry or intentionally causing an object to enter the land.
Ownerships extends below the ground and to a reasonable height above
the ground.
Unintentional entry is not trespass, however, if you are then asked to leave
and you dont, this will be trespass.
Only has to have intent to enter land. Not intent to trespass. Therefore,
entering on land you think is yours, can be trespass. Also, doesnt matter if
you dont intend to cause any harm.
Damages can come from cost of repair, diminution in the value,
compensatory or even emotional distress or annoyance damages. Even
injunctive relief to get someone to get something off your property.
Deliberate or malicious trespass may warrant punitive damages.
Extended liability means a trespasser is liable for all damages caused
while trespassing even if he did not intend to cause damage. Throwing
cigarette into pool of gasoline you though was water, resulting in a barn
burning down makes you liable for the barn.
Conversion of chattels (56-58)
If you purchase a stolen item, it is conversion. However, if you buy
property that was obtained by trick or fraud, and you did not know it was
obtained through trick or fraud, it is not conversion.
Trespass to chattels (58-59)

Trespass to chattels involves something short of a conversion. Liability is


based on actual damages, either in the form of actual harm to the chattel
itself or an interference with the plaintiffs access or use.

Defenses to Intentional Torts (63-88)


A Defendant is liable if an intentional tort is proven, unless they prove a defense
or had consent.
Self-defense and defense of others
Touchet v. Hampton (63) D punches P after angry voicemails.
ND: D seeks out and punches P in response to angry voicemails.
Here, because the threat was not readily apparent, and D could of
left, coupled with his actions of excessive force thereafter amounts
to a showing of battery without the possibility of self-defense.
Rule: A defendant may assert self-defense as a defense to a claim
of battery where the evidence shows that there was an actual or
reasonably apparent threat to the defendants safety and that the
force used by the defendant on the plaintiff was not excessive. The
threat to the defendants safety must be readily apparent.
In Morneau v. American Oil Co., 272 So.2d 313, 316
(La.1973), the court noted that mere words, even though designed
to excite or irritate, cannot excuse a battery.
Katko v. Briney (67)
Brown v. Martinez (69)
Gortarez v. Smittys Super Valu, Inc. (70) Shopkeeper privelage
Rule: a merchant may, with reasonable cause, detain a person
suspected of shoplifting in a reasonable manner and for a
reasonable time and for the purpose of questioning the suspect or
summoning a law enforcement officer.
Surocco v. Geary (82) spread of fire
Rule: a party who destroys the property of another on the basis of
a good-faith, public necessity will not be held liable for the
damages.
Vincent v. Lake Erie Transportation Co. (85)

Rule: A party who damages the property of another while acting


out of private necessity must compensate the property owner for
the resulting damage.

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)

Stewart v. Motts (93) Pouring gasoline into carburetor/dangerous


instrumentality
Rule: In a negligence action, the defendant is held to the standard
of care that a reasonable person would exercise under the same or
similar circumstances, even if the defendant is engaged in the use
of a dangerous instrumentality.
Posas v Horton (96) D rear ended P after kid appeared in road,
Emergency
Rule: In Nevada, a defendant whose vehicle strikes the back of
plaintiff's vehicle is not guilty of negligence if she was confronted
with a sudden emergency which she did not create and
accordingly acted like a reasonably prudent person would have
under like circumstances. R.3d 9 & Dobbs 98
Creasy v. Rusk (100) Mental patient with Alzheimers hits nurse.
Rule: A mentally disabled person is held to the standard of care of
a reasonable person under like circumstances, regardless of the
persons ability to understand or control his or her actions.
Policy: First, this rule will allocate the blame between two
innocent parties to the party who caused the harm. Second, the rule
provides an incentive to caretakers of the mentally disabled to
prevent harm to others. Third, this removes the incentive for a
defendant to feign a mental illness to avoid liability. Fourth, the

rule also remedies the difficulty that jurors face in attempting to


evaluate the impact of a potential tortfeasors mental disability.
Finally, because state and national policy seeks to promote equality
between disabled persons and those without disabilities, the rule
holds the mentally disabled responsible if they are to engage
themselves in society. 101/R.3d 9.e
Rule: Caretakers have special duty to patients.
Robinson v. Lindsay (105) R.3d 10 Child Standard of Care.
Snowmobile
Rule: When participating in an activity that is inherently
dangerous a child should be held to an adult standard of care.
Rule: Child standard of care. reasonably careful child of the same
age, intelligence, maturity, training and experience.

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

intended to prevent the type of harm caused and to protect a class


of persons of whom the plaintiff is a member.
Impson v. Structural Metals (117) - Truck passed car 100 from
intersection.
Rule: The acceptable excuses for not complying with a statutory
standard of care are when:
(1) the violation is acceptable in light of the persons
incapacity,
(2) the person neither actually knows nor should know of
the opportunity for compliance with the statute,
(3) the person is unable to comply after taking reasonable
care,
(4) the person is met with an emergency not created by his
or her own misconduct, and
(5) and when compliance with the statutory standard would
create a greater risk of harm.

Element 2: Breach of Duty (121 - )


Foreseeability is a case-by-case specific, fact question for the jury.
Pipher v. Parsell (123) Foreseeability of risk. D liable to passenger when
other passenger grabbed steering wheel and caused accident the second
time.
Rule: A driver owes a duty of care to his passengers because it is
foreseeable that passengers may be injured if through inattention or
otherwise, the driver involves the car in a collision.
Indiana Consolidated Insurance Co. v. Mathew (127) Lawnmower on
fire.
Rule: In a negligence action, a person is held to the reasonable
person in like circumstances standard, which values human life
over property and applies even in the face of a sudden emergency
not of the persons own making.
Policy: The law values human life above property . . . . (129)
Stinnett v. Buchele (130) P painting roof had more knowledge of safety.

Rule: An employer is not negligent for failing to provide an


employee with a safe place to work when the employees
knowledge of the risks involved with the specified activity is equal
to or greater than that of the employer.
Policy: An employers obligation to its employee is not the
frequently impossible duty of furnishing absolutely safe
instrumentalities or place to work.
Policy: Perhaps it is not unreasonable to fail to take action to
lessen a risk to someone that is so patently obvious that the other
person can be relied upon to avoid it on his own. (132.4)
DBernier v. Boston Edison Co. (133)- Pole fell on P after it was struck by
a vehicle. P sues D for negligent design of the pole.
Rule: To avoid negligence, a manufacturer must consider the
reasonably foreseeable risks of injury created by a products use in
its normal environment and design the product to prevent an
unreasonable risk of such injuries.
Learned Hand Risk-Utility Assessment (137-142)
Liability (142 146)
Comparative fault (143.1)
Joint and Several Liability (143.3)
Rule: Plaintiff can enforce her tort claim against either tortfeasor
in (1) Joint liability jurisdictions, even if they are only liable for a
proportionate amount of damages. However, if P obtains full value
of judgment from one D, that D can recover contribution from
other D, for their portion of damages. (2) In Several liability
jurisdictions, P can only get from each D their portions of
damages.
Santiago v. First Student, Inc. (147) Kid on bus slams head, no evidence of neg.
Rule: A plaintiff in a negligence case has the burden of presenting
evidence sufficient to demonstrate the existence of a material issue of fact relating
to the defendants negligent conduct.
Thoma v. Cracker Barrel (153) P slipped on water in a store. Constructive
Notice

Rule: To prove negligence in a premises liability case, the plaintiff


must show that the defendant either caused a dangerous condition
or had actual or constructive notice of the dangerous condition.
Res Ipsa Loquitur (162 - ); R.3d 17 (99-104)
1. Jury can find negligence but doesnt have toJury instruction..
(166.2)
2. Presumptions and changes in burden of production/persuasion.
(166.5)
3. Stems from a lack of evidence, Plaintiff has duty to investigate.
(170.2)
4. Expert testimony (171.5)
5. Multiple actors requires further evidence from P. (174.1)
Byrne v. Boadle (162) Barrel of flour flies out of bakery.
Rule: If injury of a type that does not typically occur without
negligence does occur, negligence is presumed from the mere fact
of the occurrence.
Eaton v. Eaton (165) Traditional rule for Res Ipsa Loquitur
Rule: For P to use Res Ipsa Loquitur, they must show: (1) the
accident which procured Ps injury was one which ordinarily does
not happen in the absence of negligence, (2) the instrumentality or
agent which caused the accident was under the exclusive control of
the D, and (3) the circumstances indicated that the untoward event
was not caused or contributed to by any act or neglect on the part
of the P.
Koch v. Norris Public Power District (167) Power lines
Policy for Res Ipsa: [Accidents] do not normally [occur] without
fault on behalf of the [party] that maintains them and res ipsa
loquitur is applied in the absence of a substantial, significant, or
probable explanation.
Cosgrove v. Commonwealth Edison Co. (168) Gas lines
Policy for Res Ipsa: Ds superior knowledge of the facts at hand
and its responsibility to the community, create duty to come
forward and make an explanation.

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

recovery and any resulting monetary award must be provided through


expert testimony.
Thompson v. Kaczinski (204) trampoline parts in the road bc of storm
Rule: Under the Restatement (Third) of Torts, a plaintiffs liability is
limited to the harms that are the result of the type of risks that made the
plaintiffs conduct tortious.
Palsgraf v. LIRR (209)
Rule: A defendant is only liable for negligence if he owes a legal duty to
the plaintiff and breaches that duty, and if the resulting harm was reasonably
foreseeable.
Hughes v. Lord Advocate (218) Manhole and Kerosene
Rule: The manner in which harm occurs is immaterial in determining the
proximate cause of a plaintiffs injuries, as the relevant inquiry is to the
type of harm reasonably foreseeable by the defendant.
Marcus v. Staubs (223)
Rule:
Delaney v. Reynolds (228)
Rule:
Derdiarian v. Felix Contracting Corp. (230)
Rule:
Ventricelli v. Kinney System Rent A Car, Inc. (233)
Rule:
Marshall v. Nugent (235)
Rule:
Pohl v. County of Furnas (246)
Rule:
Christensen v. Royal School Dist. No. 160 (260)
Rule:
Moore v. Hartley Motors (271)

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:

Podias v. Mairs (410)


Rule:
Iseberg v. Gross (435)
Rule:
Posecai v. Wal-Mart Stores, Inc. (439)
Rule:
Ward v. Inishmaan Assocs. Ltd. Partnership (446)
Rule:
Tarasoff v. Regents of Univ. of California (453)
Rule:
Brigance v. Velvet Dove Restaurant, Inc. (459)
Rule:
Homer v. Long (472)
Rule:
Catron v. Lewis (477)
Rule:
Potter v. Firestone Tire and Rubber Co. (491)
Rule:
Remy v. MacDonald (495) E BShull v. Reid (501)
Rule:
Weigel v. Lee (508) C FLee v. Crookston Coca-Cola Bottling Co. (570)
Rule:
Knitz v. Minster Machine Co. (577)

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:

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