Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Torts Overview
Intent
Battery
Assault
False Imprisonment
11
Trespass to Land
15
Trespass to Chattels
16
Conversion
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18
Consent
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Medical Consent
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22
Defense of others
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Defense of property: reasonable mistake is NOT allowed under common law rule of property.
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Recovery of Property
24
Necessity
25
Negligence
27
Elements of Negligence
27
Negligence Formula
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Standard of Care
30
Emergency Doctrine
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33
33
34
35
35
35
35
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38
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40
Effect of Statute
40
Proof of Negligence
43
Burdens of Proof
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43
Circumstantial Evidence
43
Direct Evidence
45
45
Causation
49
Causation In Fact
49
50
Proof of Causation
50
Concurrent Causes
51
53
54
54
Unforeseeable Consequences
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Foreseeability
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Intervening Causes
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Torts Overview
A. Definition: Comes from the Latin word tortus twisted and French word tort- injury or wrong.
It is a civil wrong, other than a breach of contract, for which the law provides a remedy.
B. Law of Obligation: to compensate or restore a person to the place (with money or other
compensation) before the tort occurred
1. Hypo: Sheldon and Sheila approach a light at an intersection. Light wasnt working and
both people had green lights. Sheila is hurt and sues Sheldon.
a) Is this a tort?
(1) No, this doesnt work as both people had green lights. Neither person
was at fault.
2. Main purposes: Main would be to deter and forgive.
a) Provide a peaceful means for adjusting the rights of parties who might otherwise
take the law into their own hands.
b) Deter Wrongful Conduct
c) Encourage Socially responsible behavior
d) Restore injured parties to their original condition, insofar as the law can do this,
by compensating them for their injury.
e) To vindicate, clear someone for blame or suspicion, individual rights of redress.
3. Historical Origins
a) Writ of trespass: Broad sense of trespass meaning doing something to hurt or
offend someone.
b) Writ of trespass on the case: Was used when the wrong did not have a law or
had been tried before. This was essentially a new case with no precedent.
4. Approach to Torts
a) Originated with liability based upon actual intent and actual personal culpability
with a strong moral tinge, and slowly formulated external standards that took less
account of personal fault.
b) (More Accepted approach) law began by imposing liability on those who caused
physical harm, and gradually developed toward the acceptance of moral
standards as the basis of liability.
c) There has been no steady progression from liability without fault to liability based
on fault. The difference between no-fault periods and fault-based periods is,
rather, one of degree.
C. Liability based on Fault
1. Fault: One who voluntarily does an act which results in damages to another is
responsible for the damages even if the act is lawful. (Hulle v Orynge)
a) Hulle v. Orynge: lawyer argued erect building and piece falls on neighbors
house then held liable also argued lift stick in self-defense to prevent assault
accidental injury person behind him still at fault. First case and establishes an
idea of fault.
(1) RULE: If a man does a thing, he is bound to do it in such a way as to
cause no harm or injury to others.
2. A person is liable for damages he causes unintentionally by intentional actions.
a) In order to establish fault THE PLAINTIFF must have evidence to support that
either the intention was unlawful or the defendant was at fault. (Brown v Kendall).
b) Plaintiff bears the burden of proof in intentional torts. (Brown v. Kendall)
II.
c) There are two different ways of determining fault: intent and negligent. (Brown v
Kendall)
(1) Brown v Kendall dogs attacking each other and one owner grabs stick
and hits plaintiff in eye accidentally.
D. Fault Continuum
1. Intentional torts: judged by a subjective (internal: of a particular state of mind) standard.
a) Malicious conduct: acting with a specific intent to harm.
b) Desire intent: acting with a desire or purpose that a consequence will follow.
c) Belief intent: acting with a belief that a consequence is substantially certain to
follow. (judged objectively)
2. Negligent Torts: judged by an objective (reasonable person) standard.
a) Recklessness: acting to create an unreasonable high probability of a
consequence. (aggravated negligence)
b) Negligence: acting to create an unreasonable foreseeable risk of a consequence.
(1) Hypo: You are by a lake and shoot a shotgun because you are alone.
Would this be considered a battery?
(a) No, because both desire intent and belief intent is not present.
Intent
A. Two types of intent: dont have to have both
1. Desire Intent: main type, person acts with the desire or purpose to inflict the
consequence of a tort, difficult to prove
2. Belief Intent: substantial certainty of consequence, even if dont desire the result, actor
must subjectively believe that the result is going to follow, the result must be foreseeable
or probable (Garrett v. Dailey)
a) Garrett v. Dailey: Five-year-old boy pulled chair from underneath old lady as she
was sitting down. Boy says he wasnt playing a joke, but just wanted to sit in the
chair.
(1) Court ruled that defendant could believe that the old lady would fall.
Established the standard for belief intent. Does not have to intent to
commit the tort, must establish adequate level for belief intent that the tort
will happen. (objective standard).
(a)
(2) Ouch Rule Children are capable of forming intent to commit the tort of
battery. Children could be held liable for contact that any child would
know to cause someone to say ouch.
(a) Age does not negate liability
(3) Parents are not liable for childs torts
(a) 4 year old who strikes his babysitter in the throat crushing her
larynx is held liable.
(b) 2 year old who bites a baby is too young to to form intent.
B. Good faith intent mistakes do not negate liability
1. Ranson v. Kitner: Defendants were out hunting wolves and shot the plaintiffs dog
believing it was a wolf. Defendants were liable for the killing of the dog even though they
made a good faith mistake in committing the tort.
a) Hypo: Defendant fuel oil distributor had a contract to deliver oil to a residence.
One day, during the delivery, the oil overflowed and damaged surrounding lawn
III.
(a) If he threw the stick trying to the care the boy would he be liable?
(i)
No, because you have a right to defend your property.
There would be no intentious tort to transfer.
Intentional Torts (Dignitary Torts)
A. Battery
1. Elements
a) Intent to cause harmful or offensive contact
b) Acts in a way that will cause harmful or offensive contact
(1) Harmful or offensive contact: (Restatement Second of Torts)
(a) 13: Battery: Harmful Contact
(i)
An actor is subject to liability to another for battery if
(a) He acts intending to cause a harmful or offensive
contact with the person of the other or a third
person, or an imminent apprehension of such a
contact, and
(b) A harmful contact with the person of the other
directly or indirectly results.
(i)
Hypo: One schoolboy, during a class hour,
playfully kicked another on the shin. He
intended no harm, and the touch was so
slight that the plaintiff did not actually feel it.
However the effect was restarting an
infection in the leg of a previous injury.
Plaintiff suffered damages from the jury to
be $2,500. Is this a battery?
(ii)
Yes; Even though the injury could not have
been foreseen.
(b) 18 Battery Offensive Contact
(i)
An actor is subject to liability to another for battery if
(a) He acts intending to cause a harmful or offensive
contact with the person of the other or a third
person, or an imminent apprehension of such a
contact, and
(b) An offensive contact with the person of the other
directly or indirectly results.
(ii)
An act which is not done with the intention stated in
subsection 1a does not make the actor liable to the other
for a mere offensive contact with the others person
although the act involves an unreasonable risk of inflicting
it and, therefore, would be negligent or reckless if the risk
threatened bodily harm.
c) The harmful or offensive contact does occur.
(1) Result Standard: to be an actionable offensive battery the contact has to
be one that would be offensive to a reasonable person of ordinary
sensitivities. (previously have been looking at the intent standard)
(a) Hypo: Plaintiff fell at a skating rink and broke her arm. Over the
protests of plaintiff and her husband, defendants employees, one
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F. Trespass to Chattels
1. Elements
a) 1. Act: volitional act (decision was made)
b) 2. Intent: interfere w/ chattel in the possession of another
c) 3. Result: chattel is impaired to its condition, quality, or value O
R possessor is
deprived of the use of the chattel for a substantial time O
R bodily harm caused to
the owner.
2. Cases
a) Glidden v. Szybiak
(1) Four-year-old girl left her home to go buy some candy from the store. She
found a dog on the porch of the store and mounted it and pulled up on its
ears. The dog bit her on the nose. Her injuries required treatment from
two doctors and are no longer noticeable except up close. Glidden wins
because defendant could not prove the elements of trespass to chattels.
(a) RULE: R2T 218 One who without consensual or other privilege to
do so, uses or otherwise intentionally intermeddles with a chattel
which is in possession of another is liable for a trespass to such a
person if:
(i)
The chattel is impaired as to its condition, quality, or value,
or
(ii)
The possessor is deprived of the use of the chattel for a
substantial time, or
(iii)
Bodily harm is thereby caused to the possessor or harm is
caused to some person or thing in which the possessor
has a legally protected interest.
(2) Note: Unlike trespass to land, trespass to chattels does not entitle one to
nominal damages. Some sort of damage must result from the
interference because sufficient legal protection of the inviolability of
possession of a chattel is found in the privilege to use reasonable force to
maintain possession.
(3) Note: One who non-consensually uses or interferes with a chattel of
another is guilty of trespass if the chattel is damaged, the possessor is
deprived of use for a substantial time, or bodily harm is caused by the
interference.
G. Conversion
1. Elements
a) Act: volitional act (decision was made)
b) Intent: to exercise dominion or control over the chattel of another
c) Result: interference results so seriously with the right of another to control it that
the actor may justly be required to pay the other the full value of the chattel.
2. Cases
a) Pearson v. Dodd
(1) The plaintiff is a US Senator. Several times in the summer of 1965, two
former employees of the plaintiff at times with assistance from members
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V.
b) Constitutional provisions against taking private property for public use without
due compensation do not apply to action under the police power to protect the
public against the spread of contagious diseases or devastating fires and floods
or other exigencies
(1) The Government must show that the danger to the public was imminent
and the taking was a necessity, not just a convenience.
4. Private Necessity Notes
a) Hypo: An extortioner arrives at the office of a business tycoon ad threatens to
drop a package of explosives if not paid $1M. The business tycoon threatens to
placate him, but when the negotiations fail, the extortioner drops the package.
(1) If the tycoon leaps behind a bystander and is protected from the blast, is
he liable?
(a) No, able to save self out of private necessity.
(2) If he pulls the bystander in front of himself, is he liable?
(a) Yes, never privileged to take a life.
b) Generally, taking a life out of necessity is not acceptable when invoking necessity
as a privilege
(1) Example: Three shipwrecked individuals kill the fourth to eat him in order
to survive.
Negligence
A. Overview
1. Most cases will be with plaintiffs conduct being measured against the standard of the
reasonable person because the defendant has pled the affirmative defense of
contributory negligence: the defendant is claiming the plaintiffs conduct was negligent
and that the plaintiffs negligent conduct also contributed to the cause of plaintiffs
injuries.
2. Reasonable Risk vs. Unreasonable Risk
a) Probability that the harm will occur
b) Gravity/severity of the harm
(1) If severity of the harm is high, probability of the harm can be low
(2) If probability of the harm is high, the severity of the harm can be low.
c) Burden of avoiding the risk
(1) Factors to weigh when assessing burden
(a) Cost and effort of the defendant to protect society
(b) Impingement on socially useful conduct
B. Elements of Negligence
1. Duty
2. Breach of Duty
3. Causation
4. Injury
C. Negligence Formula
1. Determining Negligence
a) Probability that the risk would actually result in harm
b) Gravity/severity of the harm
c) Burden of eliminating the risk
(1) Burden comes in two forms
(a) Monetary & Effort Costs
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Causation
A. Causation Overview
1. Causation is not the cause of the injury, but a
cause of the injury
2. Both Causation in Fact and proximate causation are required to prove negligence
B. Causation In Fact
1. Sine Qua Non
a) Meaning
(1) Without which not
b) But for principle
(1) But for the defendants negligence, the injury would not have occurred.
(2) Causation in Fact Exists (WORDING)
(a) But for the defendants negligence in [FACTS], injury would not
have occurred
(3) Causation in Fact does not exist (WORDING)
(a) It cannot be said that but for the defendants negligence in
[FACTS], injury would not have occurred
c) Hypothetical alternative
(1) Jury inquires what would have happened if defendant was not negligent
d) Cases
(1) (Perkins v. Texas and New Orleans R.R. Co.) - The Plaintiffs husband
was killed in a collision between the car he was a passenger in and a
freight train operated by the Defendant, New Orleans Railroad Co. At the
intersection of the road and rail crossing where the accident occurred, a
large warehouse obstructed the view of both the cars driver and the
trains engineer and brakeman. The trains engineer and brakeman were
aware of the obstruction and while approaching the intersection rang the
trains bell and whistle and put its headlights on. The intersection also had
warning signals to warn drivers of approaching trains. These signals were
operating at the time of the accident. Of the three railway employees in
the forward engine of the train only two, the brakeman and a fireman saw
the car emerge from the intersection. The third, the engineer did not see
the car due to the obstructed view, but applied the emergency brakes
when his companions alerted him to the presence of the car. At the time
of the accident the train was between 30 to 60 feet from the car. Both
parties have conceded that the driver of the car, who was also killed, was
negligent in driving upon the train track with the signal lights on. The
parties have also conceded that the train was traveling at 37 miles per
hour when the self-imposed speed limit for the intersection was 25 miles
per hour.
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(iv)
(v)
(vi)
d) Cases
(1) (Derdiarian v. Felix Contracting Corp.) - Dickens was driving eastbound
on the thoroughfare where Plaintiff was working on an excavation. The
driver suffered an epileptic seizure and lost consciousness, striking
Plaintiff. The driver was undergoing treatment at the time, but had failed
to take his medication that particular day. The automobile crashed
through a single wooden horse-type barricade, and struck an employee of
a subcontractor, who was propelled into the air. Upon landing, the
employee was splattered by boiling liquid enamel from a kettle. Plaintiff
and his wife sued the employer, Felix Contracting Corporation (Felix),
Dickens, and the contractor for negligence, (Defendants) claiming that the
employer failed to maintain a safe work site. Plaintiffs maintained that the
barrier should have covered the entire width of the excavation site, and
there should have been two flagmen present, as opposed to one. Felix
contended that Plaintiff was injured solely as a result of Dickens
negligence, because there was no causal link between Felixs breach of
duty and Dickens negligence.
(a) Rule - Foreseeability is the reasonable anticipation of the possible
results of an action. Proximate cause is determined by whether an
intervening act is a foreseeable consequence of the defendants
negligence. If it is not foreseeable, then it is a superseding act
which would sever the causal connection.
(b) More - On appeal, defendant employer argued that there was no
causal link between the employer's breach of duty and plaintiff's
injuries. The Court of Appeals of New York held that Plaintiffs
injuries were a foreseeable result of the risk created by the
employer. When the acts of a third person intervene between the
defendants conduct and the plaintiffs injury, the causal
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