Torts

Front 1

Intentional Torts

Back 1

B A I T

Front 2

Privileges to Intentional Torts

Back 2

1. Consent,
2. Defense (Self-property, Others),
3. Necessity
4. Authority of Law,
5. Discipline,
6. Justification

Front 3

Implied Consent (privilege) In fact

Back 3

π acting (behavior/conduct) in a way that a RP would take as consent

Front 4

2. Consent Implied in Law

Back 4

at the situation and whether there was an expectation

Front 5

Consent applies If π is incapable of consenting, but RP would have, in these situations

Back 5

i. Medical emergencies:
1. Life-threatening emergency
2. No indication that π would not consent if able
3. RP would consent
ii. Non-emergencies don’t work (Demay pregnant woman in bed)
iii. If conscious you can refuse treatment

Front 6

Exceptions to consent privilege

Back 6

i. Fraudulently obtained consent is not valid (DeMay pregnant women)
ii. Exceeding the scope of consent
1. Hackbart v. Cin. Bengals: in football consent to some contact, but not to all torts
2. Mohr v. Williams: Dr. got consent to operate on the wrong ear (not life-threatening)
iii. Lack of capacity: if incapable of consenting (minors, insane) then consent invalidated
iv. Consent given under duress is not valid?? (kind of a given)

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II. Self-Defense

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a. A person is privileged to use reasonable force to defend himself
i. Π’s reasonable belief: that force is necessary to protect herself
ii. No retaliation: privilege is against threatened battery, (not necessarily initial aggressor, must be defense)
iii. Provocation: words are not enough, words w/ a threat of BH is enough
iv. Reasonable amount of force for protection
v. Retreat: common law rule was that ∆ must retreat
1. Majority rule: no duty to retreat, ∆ may stand his ground and use deadly force if necessary
2. Restatement view: the ∆ can use deadly force if there is a slight doubt that she can’t retreat
vi. Transfer: Injury to a third party: if ∆ acting in self defense against A injures B, defense transfers (like transferred intent).

Front 8

III. Defense of Others

Back 8

a. A ∆ may use reasonable amount of force to defend another person against attack (similar to SD)
b. Reasonable Mistakes (Two approaches):
i. Intervener “steps into the shoes” of the person he is defending (privileged only when that person would be privileged to defend himself)
ii. Restatement view: Privileged to use reasonable force even if the ∆ mistakenly intervenes, as long as his mistake was reasonable

Front 9

IV. Defense of property

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a. Person may use reasonable force to defend property
i. Deadly force is never justified in defense of property, Katko (spring gun)
1. Policy: Value of Human life GREATLY outweighs the value of property
ii. Deadly force is only appropriate when imminent threat to life/serious bodily injury
iii. Warnings do not privilege deadly force
iv. Shop owner’s privilege: able to detain a potential shoplifter

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V. Necessity

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a. ∆ has a privilege to harm the property interest of π where it is necessary to prevent greater harm to public, himself, or his property (Succoro blew up houses to stop the fire in Cali)
b. Only works if it causes harm to property not people
c. Policy: interests of society supersede the one
i. An individual property owners judgment can be clouded by self-interest

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Necessity public vs. private

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d. Private vs. Public
i. Both
1. Must be in good faith for the public good
2. There must be an apparent impending threat
3. Mistakes are OK (like Succoro)
4. Doesn’t need to be someone in position of authority
ii. Public
1. If necessary to protect the public (policy question on boundaries and socio-economic considerations
2. Complete privilege: if criteria are met then there is no liable (we don’t want people not to act in an emergency for fear of liability)
iii. Private
1. Act necessary to protect private interest (person, property, other persons or property, no less damaging way to prevent)
a. Incomplete privilege: pay for what you damage (indemnify)
i. Damages yes, but not tort liability (Vincent, steamship hitting docks at night)
ii. Act of God may be a complete defense

Front 12

VI. Authority of Law

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a. If ∆ is commanded or authorized by law to do what he does, no liability (police, military persona, prison officials, etc.)
b. How far do sanctions extend?
i. Was there discretion or judgment on the ∆’s part or
ii. Was the ∆ merely carrying out an order

Front 13

Arrest w/ warrant

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i. Warrant: considered ministerial:
1. If the officer acts improperly he is liable
2. If officer mistakenly arrests the wrong person in good faith, still liable

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ii. w/o warrant

Back 14

1. can be done by officer or even citizen, but citizen’s leeway is more narrow
2. Ok if reasonable grounds for suspecting a felony has been committed
3. Officer may make arrest for past felony in his presence if he is in pursuit
4. Non-felony (misdemeanor): if commited in officers presence
5. Some jurisdictions extend power to officer for misdemeanor in his presence

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VII. Discipline

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a. Some relationships privilege the exercising of reasonable force and restrant
b. Best example: Parent-Child
i. Factors in determining if reasonable (Restatement)
1. Age, sex, condition of child
2. Nature of offense
3. Apparent motive
4. Influence of child’s conduct as example on other children in same family
ii. Whether confinement is necessary
1. Was it disproportionate to the offense
2. Unnecessarily degrading
3. Likely to cause serious or permanent harm
iii. Parent to longer have immunity
iv. Parent privilege transfers to teachers, babysitters, etc.
v. Teacher has limited privilege to maintain order in the classroom (not clearly defined scope)
vi. Military: normally dealt w/ in military law

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VIII. Justification

Back 16

a. The catchall privilege: (last resort) reasonable under the circumstances
i. When imposing liability of ∆ would be inappropriate for public policy reasons
ii. An action if reasonable under the circumstances and is preventing a more egregious violation of rights (like damage to property or personal injury) may justify the commission of an intentional tort (Sindle—school-bus driver charged for false imprisonment)
b. Burden of proof on ∆

Front 17

a. The Reasonable Prudent Person (RPP

Back 17

i. This is the main standard of care now: ∆ should act as a RPP under similar circumstances
1. Not meeting that standard qualifies as a BREACH of duty
ii. Policy problem: “under the (similar) circumstances”: what if someone just really isn’t that smart and is doing their best?

Front 18

1. Dumb Person (=)

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a. The RPP standard does not subjectify DOWN, Vaughn (hay rick burns, ∆ plays the dumb card, doesn’t work for him)

Front 19

2. Smart Person (+)

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a. However it does subjectify UP, so if ∆ has superior intelligence or training, etc. then she will be held to a higher standard of care

Front 20

3. Ignorance (=)

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a. doesn’t matter if it is something the RPP should have known, Delair (guy w/ worn out tires, should have known by a reasonable inspection)

Front 21

4. Emergency situation (-)

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a. make an otherwise negligent act reasonable, as long as the RPP would have acted the same in an emergency, Cordas (cabbie bails on cab because he’s at gun point—cab hits a woman)

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5. Physical Disabilities (-)

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a. law will subjectify down to how the RPP would act w/ that disability (the disability is part of the circumstances the RPP finds herself in) Roberts (blind person)

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6. Children (- , w/ a = exception)

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a. Do subjectify down to a child’s age, capacity, maturity, experience
b. Engaging in Inherently Dangerous Activity Exception: child is held to adult standard of care in such activities, Robinson (kid/snowmobile)

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7. Insane/Mentally handicapped

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(= , w/ a – exception)

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8. Gender

Back 25

(=)
a. Majority (=)
b. Minority (-) reasonable woman standard, Ellison (sex. harass.) just 9th circ

Front 26

b. The Professional and Custom (The RP Professional)

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i. If there is an accepted reasonable standard in a certain field, then it must be followed
1. If ∆ possess a higher degree of knowledge, skill, or experience than the RPP, ∆ must use that higher lever
2. Subjectify + for additional training, but not – for lack of training

Front 27

1. Objective professional standard

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not what one would have done in the same situation w/ the same training and experience as ∆, but rather the knowledge, training, and skill of an ordinary member of the profession in good standing (like a minimum standard of acceptable behavior, Heath

Front 28

iii. Attorneys

Back 28

1. Possess requisite degree of knowledge, skill, ability as the RP Attorney
2. Exert best judgment
3. Exercise reasonable and ordinary care in application of the knowledge (diligence)
a. Client must show that “but for” the A’s negligence they would’ve won

Front 29

iv. Doctors

Back 29

Malpractice
Lack of informed consent

Front 30

1. Rules for showing Medical Malpractice, Boyce

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a. Dr. doesn’t possess the requisite skill and learning of average member of the profession, or doesn’t apply it w/ reasonable/ordinary care
b. Dr. does something that is forbidden, or omits something required by the recognized standard of practice
c. There must be a standard of medical practice in the community (shown by evidence
d. Malpractice is NEVER assumed, must be affirmatively proven
e. Must be established by expert medical testimony, unless so grossly negligent that a layman would easily recognize it.
f. The fact that other physicians testify that they would have acted differently is insufficient, must have been deviation from comm. standard

Front 31

3. Local Standard

Back 31

designed to account for ineptitude of rural Dr.’s who were not afforded the same training (minority) maybe reinforces status quo

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b. Similar community in similar circumstances standard

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i. Tries to balance the need of π to have expert testimony and protect small town from big city influences (majority have accepted

Front 33

c. National standard,

Back 33

?): w/ board certified physicians, etc., the standard is to be measured by the national standard (some jurisdictions have adopted this)

Front 34

4. Informed Consent (Failure to Disclose Problem)
a. Duty: a physician must adequately disclose to the patient (CAMPT

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i. Collateral risks (side effects)
ii. Available alternatives
iii. “Material” risks: if likely to affect the patient’s decision
iv. Personal interests of the doctor, Moore (USC Doc and man’s cells)
v. Treatment

Front 35

b. Three potential standards of disclosure:

Back 35

i. Reasonable Doctor: what the reasonable Dr. usually discloses
ii. Reasonable Patient: what the R patient would want to know
iii. Actual Patient (Scott v. Bradford): what this actual patient …

Front 36

Excetptions to Dr.s Standards of disclosure

Back 36

i. Risks are common knowledge
ii. Disclosing would be detrimental to the patient’s care
iii. Emergency

Front 37

d. Causation in lack of informed consent

Back 37

had patient known of risk she wouldn’t have consented (very subjective post hoc)

Front 38

e. Damages in lack of informed consent

Back 38

adverse consequence did actually occur, resulting in injury

Front 39

v. Custom Generally

Back 39

1. Not normally definitive (Probative, not dispositive), but reflects what a standard of reasonable care probably is; evidence is shown to the jury who decides
a. When there is a customary way and ∆ fails to conform, subjectify +
b. Custom is determinative in medical field
c. Can establish a duty, Trimarco (shower doors)
2. Limitation: if a custom is clearly negligent it cannot be used as a defense
3. Ways to prove:
a. Expert
b. Bulletins, brochures, manuals
c. Federal standards

Front 40

c. Hand Formula

Back 40

Calculating Negligence—Reasonable Risk
i. B < PL = liability; B > PL = no liability, Carroll Towing (boat breaks loose/ no bargee
1. Burden must of adequate precaution must be less that the probability that something tortious will happen * the gravity of the injury
2. Interesting but sensible POLICY

Front 41

vd. Rules of Law

Back 41

i. Courts can establish bright-line “rules of law” to establish precedent

Front 42

e. Statutes

Back 42

i. Legislature deciding standard of care—there still must be a common law duty

Front 43

ii. Threshold Question for statutes

Back 43

1. Harm is that which the statute meant to prevent, Osborne (woman drinks unlabeled poison)
2. Person harmed must belong to the group that the statute meant to protect, Stnachiewicz (bar room brawl)
3. Appropriateness of the statute as a standard of care (also proximate causation

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Applying statutes: 3 views

Back 44

Majority: negligenc per se
minority rebuttable presumtion
minority: evidence only

Front 45

Majority) Negligence per se

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a. Statute fixes the standard of care to be conclusive evidence of negligence
b. Must examine legislative intent
c. W/o express extension of liability by the legislature, courts should be hesitant to do so on their own, Zeni

Front 46

1. (Minority) Rebuttable Presumption

Back 46

a. Establishes prima facie negligence case
b. ∆ becomes negligent as a matter of law unless the presumption is rebutted
c. 2 standards of rebuttal
i. Goes to jury if not rebutted (minority)
ii. Negligence is presumed if no excuse (majority)
d. Excuse: positive, unequivocal evidence to rebut
e. Possible rebuttals (excuses) AEING (Restatement)
i. Actor’s incapacity
ii. Emergency
iii. Incapable of complying
iv. No knowledge
v. Greater risk in complying (Zeni—woman walking/snowy road)

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2. (Minority) Evidence Only

Back 47

a. Violation is just evidence—it goes as a question to the jury
i. Possible questions
1. Knowledge of duty?
2. Clearly defined duty?
3. Should strict liability apply
4. Disproportionate result from imposing liability? (Perry, child abuse)
5. Can provimate or direct causationbe shown?

Front 48

a. Negligent Infliction of Emotional Distress (Physical manifestations rule)

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1. ∆’s negligent conduct proximately causes:
2. Emotional distress (even w/o physical impact), which
3. Results in a definite and objective physical injury

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Exceptions to NIED

Back 49

i. RPP standard, absent specific knowledge of π’s unusual sensitivity, no recovery for hypersensitive mental disturbances where RPP would not be affected under the circumstances
ii. Where π has narrowly escaped imminent and serious harm to his own physical well being, the courts readily allow recovery upon a showing of ensuing mental disturbances (w/o physical injury)

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b. Bystander Rule ii. Dillon

Back 50

1. Π’s proximity: to the accident
2. Temporal proximity: Contemporaneous sensory perception, as contrasted w/ learning from others about the accident post hoc
3. Relationship proximity: were the π and the victim closely related?
a. Policy problem is the new balancing test v. the bright-line Amaya

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iii. Thing Rule: π must be:

Back 51

1. Closely related to the victim by blood or marriage
2. Present at the scene at the time it occurs and aware that it is injuring victim
3. Π as a result suffers serious emotional distress—beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances

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c. Duty to Rescue

Back 52

i. Generally, ∆ has no duty to rescue
1. A university has no duty to regulate the private lives of student, Hegel (girl gets into drugs, etc. while in school

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ii. Exceptions to no duty to rescue

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1. Special Relationships: harm is foreseeable, ∆ had ability to control it
a. Parent-child, husband-wife, ship master, other employers
2. ∆’s actions put π in peril
a. Also, if ∆ is a master or invitor, and π is injured by instrumentality under ∆’s control, ∆ can be liable for failure to exercise R care to avoid aggravation, even if she was not negligent, Ayres (boy-escalator)
3. Assumption of duty: ∆ does attempt to rescue, and in doing so increases the risk of harm, or is relied upon by the π to her detriment
4. Child Abuse (Duty to control others), J.S. (Old man abusing young girls, wife ∆)
a. Spouse/∆ must have:
i. Actual knowledge or special reason to know of the likelihood of spouse’s behavior against a particular person(s)
ii. Duty to take reasonable steps to prevent or warn of the harm
b. B<PL analysis: nature/risk of harm, foreseeability/severity v. opportunity/ ability to prevent harm (societal interest v. marital relationship)

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d. Duty to Warn i. Therapist

Back 54

1. Once ∆ (therapist) determines (or reasonably should have determined under applicable professional standards) that a patient:
2. Poses a serious danger of violence to others,
3. ∆ bears a duty to exercise reasonable care to predict the foreseeable victim
a. Policy issue: doctor patient privilege v. potential harm to victim

Front 55

ii. duty to warn Clergy

Back 55

1. UT rule for clergy
a. No duty to reveal evidence gained through confession (even child abuse)
b. Duty to turn over info gained by other means

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duty to warn attorneys

Back 56

1. Lawyer MAY reveal info he believes is necessary to:
2. Prevent her client from committing a criminal act
3. Establish a claim on behalf of the attorney (?)

Front 57

duty to discovered trespassers

Back 57

a. Duty not to injure by active operations or willful/wanton disregard,
b. Some jur. disregard (a) and say: exercise reasonable care for the trespasser’s safety
c. Includes frequent trespassers on a very limited part of the land who the owner knows about (owner must use reasonable care to make premises safe, or at least warn of dangers)

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ii. Licensees

Back 58

1. Includes: Social Guests
2. Duty: licensee takes premises as she finds them, Barmore (Masonic buddies: mentally ill son stabs guest)
a. BUT owner has a duty to warn of hidden dangers
b. And, duty of reasonable care (in most places)
c. Added protection for child licensees, obligation to inform a child about a risk when there wouldn’t be a duty to an adult

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iii. Invitees:

Back 59

enter w/ permission for property owner’s purpose/benefit (normally bus. related)
2. Duty:
a. Take reasonable care to make the premises safe by: inspecting for danger, warning of it, controlling third persons on the premises
3. Exceeding the scope of invitation:
a. If invitee goes outside the scope, he becomes a trespasser or a licensee, depending on whether he does so w/ or w/o the consent of landowner, Wheelan (customer goes into the back room)

Front 60

1. Children Restatement

Back 60

2. Attractive nuisance/turntable doctrine
c. Restatement (rejecting Britt, most states have accepted this): artificial conditions highly dangerous to trespassing children (ACHDTC)
i. LO knows or has reason to know that kids are likely to trespass
ii. LL knows or has reason to know of the condition, and realizes or should realize will involve an unreasonable risk of death or serious bodily harm
iii. Because of their youth, kids don’t discover the condition or realize the risk involved
iv. B<PL
v. LL fails to exercise reasonable care to eliminate the danger, or otherwise protect the children
1. Policy: However, ∆ (LL) can’t be an insurer of kid’s safety

Front 61

3. Persons privileged to enter irrespective of LO’s consent (Public Officials)

Back 61

i. Some courts say that if entering for business purpose or is essential to LO, then invitee (sanitary inspectors, garbage man, etc.)
ii. Fireman, police, have generally been held to be licensees
iii. Some courts have abandoned the categories and applied a general reasonable care, negligence standard
iv. @least 5 use standards: (1) licensees, (2) invitees, (3) entitled to the highest duty the LO already owed to someone else at that place and time, (4) given a separate category, (5) reasonable care under all circumstances