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77 Cards in this Set
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Battery
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Definition
(1) Battery is the intentional infliction of a harmful or offensive bodily contact Requirements for Battery (1) Δ caused touch to person (2) Touch was harmful or offensive to a reasonably sense of decency (3) Δ either desired or knew to a substantial certainty that touch would occur |
Ghassemieh v. Schafer: defendant desired to injure or offend.
Garrat v. Dailey: defendant knew to a substantial certainty that the touch would occur. Fisher v. Carrousel Motor Hotel: physical contact is not necessary to constitute a battery so long as there is contact with clothing or an object closely identified with the body. |
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Assault
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i) Definition
(1) An intentional threat or attempt, coupled with apparent ability, to do bodily harm to another, resulting in immediate apprehension of bodily harm; no bodily contact is necessary ii) Must prove intent to cause apprehension of imminent harmful or offensive bodily contact, intent to cause actual harmful or offensive bodily contact, or intent to cause a confinement |
Vetter v. Morgan: words alone can be an assault if they put the other in reasonable apprehension of imminent harmful or offense contact with his person.
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Intentional Infliction of Emotional Distress
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Emotional distress
D caused emotional distress Emotional distress was severe D’s conduct was outrageous "Defendant's outrageous conduct caused the plaintiff to suffer severe emotional distress." |
Chuy v. Philadelphia Eagles: it is up to the jury to decide how outrageous the conduct was.
Eckenrode v. Life of America Insurance Company: outrageous conduct may come from an abuse of power (such as an insurance company over claimant in this case). |
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Defenses to Intentional Torts
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Consent (O'Brien v. Cunard: woman doesn't voice her non-consent to getting a vaccine.)
Self-Defense (Tatman v. Cordingly: person must reasonably believe the danger exists.) Defense of Others Defense of Property (Katko v. Briney: spring-gun case - deadly force is not appropriate for defense of property). |
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Res Ipsa Loquitur
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Negligence is obvious.
The accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence. EX) The rubber glove in the stomach after surgery. |
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Substantial Factor Test
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-defendants conduct sufficient
-x's conduct sufficient -defendant's conduct substantial |
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Alternative Liability Test
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-group of tortfeasors
-only one was CiF -not the plaintiff's fault that they can't prove which one it was -all members are defendants |
Summers v. Tice: burden shifts to the defendants to prove non-liability.
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Alternatives to the But-For Test
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(change the test)
-substantial factor (the example of the two fires) (shift the burden of proof) -alternative liability (summers v. tice) -indivisible injury (two car accidents in one day, Piner) (charge defendant with someone else's conduct) -concerted action (common design, aid and abet, Bichler v. Eli Lilly) (change the inquiry) -remedy impairment (takes the opportunity for another suit away) -lost opportunity (compensation for loss of a percentage survival) -market share |
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Breach Do-Over
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Is plaintiff's accident by itself sufficient to justify calling defendant's conduct wrongful? (do B>PL for that one individual)
-very narrow view, almost never sufficient -Wagon Mound 2 |
Palsgraf
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Rules for Negligent Infliction of Emotional Distress
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-"Impact" Rule - Bosley v. Andrews
-Zone of Danger / Fear for Self - Neiderman v. Brodsky -"Uninjured Bystander" - Dillon v. Legg (Sinn v. Burd in casebook) |
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Duty Rule in Mental and Emotional Harm
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-plaintiff sustained serious emotional trauma
-person of average sensitivities would have too -physical manifestations |
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Legal Cause in Mental and Emotional Harm
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-plaintiff near the scene
-direct and contemporaneous observation -plaintiff closely related to victim |
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No Vicarious Liability for Independent Contractor's EXCEPTIONS
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-inherently dangerous work
-holding out as ee -misc. non-delegable duty situations |
Hunley v DuPont
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Pusey v. Bator: Test for Independent Contractor
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Right to control the manner of means of the work
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Negligence Per Se Rule
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(1) whether the injured person falls within the class of persons it was intended to protect, and
(2) whether the harm complained of was the harm it was intended to guard against. -Potts (the bug on the fruit case, plaintiff used wrong statute) |
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Transferred Intent
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(1) If a person intends to cause wrongful action to one person but acts upon a third accidentally, they are considered to have transferred intent to the third person and are liable as if originally intended
(2) If a person intends to cause a harmful act but ends up creating a different wrongful action, it is considered as if they intended the act that actually occurred |
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Self-Defense
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Δ honestly and reasonably force necessary to protect from actual or apparent threat
AND reasonably prudent person would have used the same under the same or similar circumstances |
Tatman v. Cordingly: person must reasonably believe that a real danger exists (both subjective and objective standard); it existed here because the old man was armed.
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Defense of Property
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The privilege to defend property rests on essentially the same basis as the right to defend oneself. A property owner may use only so much force as appears necessary to protect the property.
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Misfeasance v. Nonfeasance
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Misfeasance
(a) Active misconduct working positive injury to others Nonfeasance (a) Passive inaction, a failure to take positive steps to benefit others, or to protect them from harm not created by any wrongful act of Δ |
Galanti v. United States
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Pure Economic Loss
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(1) this is economic loss without physical injuries
(a) traditionally recovery was denied (2) Much of the flow of causation is related to contracts (a) Tort law tries not to invade on contracts |
Testbank
Moransais |
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Trespasser
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One who enters without any privilege to do so; generally there is no duty to trespassers
(i) the exceptions are children or where significant numbers of trespassers are known to frequent a particular and limited part of the land |
Thunderhawk
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Licensee
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One whose only privilege derives from owner’s consent; social guests are licensees; reasonable care duty is in:
(i) the conduct of activities on the premises if the danger is not apparent to the licensee (ii) warn licensee of dangerous conditions (both natural and artificial) known to occupier and not known or likely to be discovered by the licensee |
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Invitee
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Comes on some errand of potential economic benefit to the occupier; reasonable care must be used to make the place suitably safe; occupier must make inspection and disclose dangers
Stitt v. Holland Abundant Life Fellowship |
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Attractive Nuisance Doctrine
Thunderhawk |
1. A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:
a. possessor knows or has reason to know that children are likely to trespass b. knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and c. the children do not realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and d. the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared to the risk to children involved (B<PL) e. the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children 2. Elements a-d (1-4) must be met; if so, then the duty of reasonable care under 5th element attaches to land possessor a. Π must then prove breach, proximate causation, and damages through evidence |
Thunderhawk
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Breach
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B<PL
1. B= burden 2. P= probability (probability of accidents occurring) 3. L= injury (foreseeable threat as shown by the evidence) OR the Breach Do-Over Test |
Grace and Co. v. City of LA - the cost of fixing the one pipe was much greater than the chance that it would burst and cause the harm, so it was not negligent for the city to leave the pipe as it was.
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Res Ipsa Loquitur (2)
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(i) For res ipsa loquitur:
1. the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence 2. it must be cause by an agency or instrumentality within the exclusive control of the Δ 3. it must not be due to any voluntary action on the part of the Π (ii) All three requirements must be met. If so, jury may infer that Δ was negligence even though there is no direct evidence to that effect. 1. this is a ticket to the jury; the other factors must still be met |
Colmenares Vivas v. Sun Alliance Insurance
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Negligence Per Se Breach
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(i) Did Δ violate the statute?
(ii) Can Δ claim a recognized excuse? |
Martin v. Herzog
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Legal Cause Tests
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Directness Test- was Π’s injury a direct result of Δ’s wrongful conduct? (In re Polemis) NO LONGER GOOD LAW
General Foreseeability Test- was Π’s injury among the array of risks that led to breach determination. aka was Π’s injury among the P (foreseeable array) that led to B<PL determination? Breach Do-Over Test: was plaintiff's specific injury enough to make defendant's conduct negligent under the B>PL test? (Palsgraf, generally the answer is no) |
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Negligence Per Se Legal Cause
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(b) For Negligence Per Se Legal Cause
(i) Statute designed to protect Π’s class of person? (ii) Statute designed to prevent type of harm sustained? |
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Personal Injury Compensatory Damages
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(a) Medical (and related) expenses (past and future)
(i) Everything needed for physical care (b) Earning losses (past and future) (c) Physical and mental pain and suffering (past and future) |
Rodriguez v. McDonnell Douglas Corp.
McDougald v. Garber Haynes v. Yale New Haven |
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Affirmative Defenses
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Affirmative Defenses
(a) Contributory or comparative negligence (b) Failure to avoid consequences (c) Mitigations of damages (d) Assumption of risk |
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Getting Around Contributory Negligence - Ameliorative Doctrines
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1. “last clear chance” rule- negligent Π should still recover if he could show that Δ had later opportunity to avoid the accident
2. “Willful and Wanton” rule- if Δ’s misconduct was “willful and Wanton,” then Π’s negligence is ignored |
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Comparative Negligence
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(a) Attempts to divide liability between Π and Δ in proportion to their relative degrees of fault
(i) This change from contributory to comparative has caused liability insurance premiums to rise (b) Punitive damages are not usually reduced by the % of the Π’s liability (c) The %s returned by the jury are the extent to which the parties have strayed from the commonly held standards (the extent of their breach) Hoffman v. Jones |
Hoffman v. Jones
Wassell v. Adams |
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Pure Comparative
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(a) Π can recover no matter how responsible he is
(i) Ex. Π can recover 1% if he is 99% liable |
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Modified Comparative
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(a) Π is cut-off from recovery at a certain point of liability
(i) Ex. If Π is >50% liable, he gets no damages |
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Things to Ask When Examining Statutes
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(a) Coverage- what kinds of torts coverage has the legislature spoken to in this issue?
(i) What kinds of Δ conduct 1. Negligence or strict liability? What about intentional torts? (ii) What kinds of Π conduct? 1. Π’s negligence? Assumption of the risk? Failure to avoid consequences or mitigate damages? Consent? Self-defense or defense of property? (iii) Types of harm? 1. Property damage? Personal injury? Emotional injury? Pure economic loss (b) Bar Rule- under what circumstances is Π precluded from recovery? (c) Diminution Rule- for those Πs that the statute does not bar, what does the statute provide as a mechanism for diminishing that recovery to take into account the victim’s conduct? (d) First look at language of statute; then look at aim, the underlying values that it is enacted for |
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Mitigation of Damages
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(i) Π cannot recover for damages that can be avoided after the accident by taking prudent measures to prevent or reduce severity of injuries
(ii) Post-accident |
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Failure to Avoid Consequences
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(i) Applied in cases where Π not wearing seatbelt
(ii) Pre-accident (iii) Avoidable consequences is different from comparative negligence issues 1. both are pre-accident conduct 2. comparative fault was cause in fact and legal cause of victim’s injuries 3. avoidable consequences are a cause in fact of only some of the injuries |
Dare v. Sobule
Hutchins v. Schwartz |
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Damages: Failure to Wear a Seatbelt
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treat like failure to mitigate damages- don’t award anything for extra damages that would otherwise be prevented; jury does this
forgive it treat as indistinguishable from contributory negligence work out a % based diminution tailored to the particular conduct (appropriate and limited reduction) |
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Assumption of the Risk
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(1) After comparative fault era begins, we need different names for the 3 things considered under assumption of risk:
(a) Express assumption of risk- exculpatory contract or pre-accident release (b) Implied primary assumption of risk- limited duty (sports, etc.) (c) implied secondary assumption of risk- voluntarily and knowingly undertakes a risk |
Bennet v. Hidden Valley Golf and Ski
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When will plaintiff be charged with third party's actions?
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Relationship between Π and X is such that Π would be held vicariously liable for the damaging effects of X’s fault
OR Π’s suit against Δ is “derivative” of X’s injuries Ex. Loss of consortium for husband when wife is injured; innocent bystanders seeking to recover when their relatives are injured |
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Relationships Giving Rise to Vicarious Liability
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Employee - Employer
Parent – Child (by statute) Partnerships Joint enterprises Car owner – car driver (by statute) |
Pusey v. Bator
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Parental Liability
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o Generally, parents not liable for torts of their children in common law.
o Limited liability in some jurisdictions (by statute): • Usually only for children in certain age range. • Often only apply to acts of malicious mischief. |
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Respondeat Superior
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o Liability of a master for the tort of a servant who was acting in scope of employment
o Factors in considering employer – employee relationship: • Is the employee acting within the scope of employment? • Is the action of employee reasonably foreseeable conduct? • If the answer to either is yes…vicarious liability exists. |
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Contribution and Indemnity
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Brochner v. Western Insurance Company
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Partial Settlements
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i) If Π releases A from liability while going after B, C, and D, should A remain exposed to contribution liability?
(1) Today, there is a strong trend toward treating the settlement and release as insulating A from such liability ii) Also, should judgment against B, C, and D be reduced to reflect the fact that P received partial payment for the injury from A? (1) Most states hold yes iii) Judgment may be reduced by: (1) dollar amount A paid in settlement (the “pro tanto” method) (2) A’s “pro rata” share of liability (here ¼) (3) an amount reflecting A’s percentage fault (a) this is the recent trend |
McDermott v Amclyde
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One Satisfaction Rule
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(g) “One Satisfaction” rule- Π should not recover more than his damages
(i) this does not apply when Π settles |
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Six Different Situations for Battery
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Remember: A battery occurs when a defendant inflicts a harmful of offensive contact on plaintiff.
Δ desired touch Δ desired touch to injure Δ desired touch to offend (Ghassamieh) Δ knew to substantial certainty that touch would occur (Garrat) Δ knew touch would cause injury Δ knew touch would offend a reasonable sense of decency |
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Consent: The essential versus collateral distinction.
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To vitiate consent the mistake must extend to the essential character of the act itself, which is to say that which makes it harmful or offensive, rather than to some collateral matter which merely operates as an inducement.
Examples Choirmaster seduces pupil by telling her that intercourse will improve her voice - Choirmaster has misrepresented intercourse as an exercise for voice improvement, relating specifically to the act of contact; thus contact is vitiated through the lie. Man seduces woman through false promise of marriage - False promise of marriage relates to collateral matter; the act of intercourse is understood to be the same by each party; thus consent remains. **Consent may also be rendered ineffective if it was coerced or if the party was incapacitated on account of infancy, mental incompetency, or intoxication. |
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Duty: Independent Contractors and the Humanitarian Exception
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Generally, once an owner accepts a piece of construction work from an independent contractor, the owner takes full responsibility for it
1. Contractor’s duty of care to a third party therefore ceases (and thus liability goes as well) Humanitarian exception applies to contractors’ work that is 1. dangerously defective (ex. if Δ’s wiring would cause harm to foreseeable third parties using it in expected ways) 2. inherently dangerous (applies to acts like blasting, instead of conditions or instrumentalities), OR 3. imminently dangerous (if it is reasonably certain to place life or limb in peril) |
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Duty: Exceptions to Non-Feasance (i.e., ways in which the plaintiff might characterize non-feasance to establish a duty)
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(1) Categorize the case as a misfeasance case (it is not always easy to draw the line between misfeasance and nonfeasance)
(2) Apply an Exception: 1. Good Samaritan / volunteer / undertaking; reasonable care not to worsen the situation 2. special relationship to Π 3. Prior [innocent] conduct 4. Special relationship to X (duty and conduct) - This answers question: when can one be held liable for his own torts negligence in failing to prevent or guard against another’s crimes for torts? |
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Galanti Exceptions to Non-Feasance
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Δ has in any way taken an affirmative step to create the danger (ex. cow in the road)
Δ’s failure to properly exercise his ability to control the foreseeably dangerous instrument (ex. escaped mental patient) law enforcement officials may have the duty to warn or protect against danger if they have voluntarily assumed or incurred that duty to a specific individual (this would only apply to the protected witness in galanti) |
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Firm Dillon v. Flabby Dillon
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a. Firm Dillon requires all 3 elements to be met; Robertson prefers Firm Dillon
b. Flabby Dillon allows for some of the elements to be met and weighed (lack of an element is not an automatic bar) |
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Robins Dry Dock Rule from TESTBANK
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Π denied recovery for economic loss if that loss resulted from physical damage to property in which he had no proprietary interest.
“Denying recovery for pure economic losses is a pragmatic limitation on the doctrine of foreseeability, a limitation we find to be both workable and useful.” |
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Persons of Ordinary Prudence
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(a) Adults are held to the person of ordinary prudence
(b) Children are based on age, intelligence, and experience (much more subjective for each case) |
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Breach: T.J. Hooper
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Following industry custom is not conclusive on the matter of breach.
An industry can never set its own legal standard. However, deviation from industry custom is a powerful argument for breach (everyone is doing it so the burden is probably low). |
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5 Step to Identify Cause in Fact
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(a) identify the “injury in suit”
(b) identify the defendant’s wrongful conduct (c) create a mental picture of the conduct had the wrongful conduct been “corrected” to the minimal extent necessary to make it conform to the law’s requirements (d) ask question of whether injury would have still occurred had the defendant behaved correctly in the sense indicated (e) answer the question |
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Cause in Fact: Cases in Which Res Ipsa Loquitur is Appropriate
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(i) Concerted action
(ii) Master-servant (iii) Principal-agent (iv) Nondelegable duty – Colmenares |
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Remember the but-for cases!
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(1) East Texas Theaters v. Rutledge: removing the rowdy people would not have guaranteed that plaintiff not be hit by bottle bc unknown if rowdy people were throwing things.
(2) Marek v. Southern Enterprises: removing firecracker throwers would have kept plaintiff from losing hearing since it was known who was throwing the firecrackers. |
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Alternative Liability: KEY CASE
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Summers v. Tice
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Looming Threat Rule from Dillon
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1. if Π would have fallen to death , Δ is not liable
2. if Π would have been seriously injured, Δ would be liable only for the injuries sustained beyond those that would have occurred naturally |
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Rules of Thumb for Legal Cause
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(a) Unforeseeable plaintiffs rarely recover
(b) It is difficult to recover for unforeseeable types of harm (c) Even though the mechanism (manner of occurrence) is unforeseeable, recovery is often allowed (d) Generally the unforeseeability of the extent of the injuries presents no problem |
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Damages: Rodriguez
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Damages: McDougald
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Plaintiff must be away of loss in order to get non-pecuniary damages.
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Damages: Haynes
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The underinsured motorist benefits were a collateral source and it was correct to deduct plaintiff's recovery from the hospital by the amount of recovery from that collateral source.
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Contributory Negligence: Ameliorative Practices
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“double standard” on the breach issue- actions that would be enough for normal negligence are not enough to prove contributory negligence
other courts would refuse to find Π’s actions as the legal cause of the damages (even though identical conduct harming someone else would cause liability) |
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Should the court impose a duty to wear a seatbelt while driving?
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Most jurisdictions say NO.
a. Δ should not diminish the consequences of his negligence by Π’s failure to anticipate accident; Πs are not required to predict Δs’ negligence b. seatbelts are not required in all vehicles c. majority of motorists do not habitually use their seatbelts d. “battle of experts” would ensue to argue what damage would have been avoided e. legislature has not mandated seatbelt use f. duty to mitigate damages does not arise until after the accident and injury have occurred HUTCHINS C. SCHWARTZ court says YES. a. there is minimal effort required to fasten a seatbelt b. drivers who fail to use seatbelts should be held responsible for the incremental harm they cause c. automobile accidents are foreseeable d. Π has a duty to mitigate damages before the accident in some instance |
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Comparative Negligence Statutes: NY
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Π shall be diminished in the proportion to which the culpable conduct caused the damages
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Comparative Negligence Statutes: ARK
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Fault of Π must be less than fault of party or parties from whom Π seeks damages; damages are diminished in proportion to his own fault - this is called the “modified 50%” type; Π < Δ
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Comparative Negligence Statutes: Wisconsin
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no recovery if negligence of the plaintiff is greater than negligence of defendant. damages reduced in proportion to amount of negligence.
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Imputing Fault: White v. Lunder
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Statute says “contributory negligence shall not bar recovery…” - This means that only Π’s negligence is counted for comparison; not Π and his wife
Statute says “any damages allowed shall be diminished in proportion to the amount of negligence attributable to the person recovering” - This means to add Π and Π’s wife for diminishing the damages. |
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Joint and Several Liability: Kaeo v. Davis
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City requests that the jury be made aware of how their decision effects parties. Court agrees that jury does more than fact finding; applying justice requires a knowledge of underlying law.
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Concerted Action: Bichler v. Eli Lilly
Two Theories of Concerted Action |
(1) CONSCIOUS PARALLELISM: Consciously parallel conduct (no direct evidence or plus factor is required)
(2) SUBSTANTIAL ASSISTANCE / ENCOURAGEMENT: although acting independently, one actor's actions substantially encourage the wrongful conduct of the others (i.e., failure to test the drugs). **No express agreement is required. |
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Concerted Action: Bichler v. Eli Lilly
Two Theories of Concerted Action |
(1) CONSCIOUS PARALLELISM: Consciously parallel conduct (no direct evidence or plus factor is required)
(2) SUBSTANTIAL ASSISTANCE / ENCOURAGEMENT: although acting independently, one actor's actions substantially encourage the wrongful conduct of the others (i.e., failure to test the drugs). **No express agreement is required. |
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Default Assumptions in the pre-statutory common law of torts
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contributory negligence barred recovery
when p established liability against multiple tortfeasors, the liability was joint and several d's were entitled to contribution from one another on a head-count basis |
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Courts' attitudes regarding tort law statutes
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(1) strive to implement legis. language
(2) legis. must have meant to keep in place those old features that are not explicitly changed in statute |
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Restatement position on duty rules
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in exceptional cases, when articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.
the restatement disapproves of ad hoc (one at a time) declarations of no duty. |
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