Torts Approsheet Road Map

Torts Intentional Torts • • • • • • • Assault: the defendant acts with intent to cause a harmful or offensive contact (or imminent apprehension of such contact) and an imminent apprehension directly or indirectly results. o Apprehension does not mean fear. Apprehension is knowledge or anticipation of the impending contact. Battery: the defendant acts with intent to cause a harmful or offensive contact (or imminent apprehension of such contact) and a harmful or offensive contact directly or indirectly results. o Doctrine of personal autonomy: contact with anything reasonably associated with the person satisfies the contact requirement. o Garratt v. Dailey: Defendant pulled chair out from woman trying to sit down. While Defendant did not purposely harm Plaintiff, substantial certainty that harm would occur is sufficient to establish intent. False imprisonment: the defendant acts with intent to confine or restrain the plaintiff to a bounded area, actual confinement occurs, and the plaintiff either knows of the confinement or is hurt by it. Intentional infliction of emotional distress (IIED): The defendant intentionally or recklessly engages in extreme or outrageous conduct that causes the plaintiff to suffer severe emotional distress. The plaintiff does not need to show physical symptoms in order to prevail. However, the plaintiff must show he suffered “severe emotional distress.” Trespass to land: the defendant physically invades the land of another and intends to be where he is. o It must be a physical invasion. An intangible invasion (e.g., lights or loud noises) might constitute a nuisance but not trespass. o Only the entrance must be intentional. The entrant does not need to know that the land belongs to another. Trespass to chattels: The defendant intentionally interferes with another’s use or possession of his personal property and harm results. The damages are the cost to repair the property. Conversion: The defendant intentionally interferes with another’s personal property and a serious and substantial harm results. The damages are the fair market value of the property or replevin. o The difference between trespass to chattels and conversion is the amount of damage. Significant/total damage = conversion. Defenses to Intentional Torts Consent: this can be express or implied. o Exceptions: incapacity (e.g., children), duress, consent obtained by fraud, or conditional consent. o O’Brien v. Cunard Steamship Co.: holding out arm while embarking ship constitutes implied consent for vaccination when all of the other passengers were being vaccinated. Self-defense, defense of others: The defendant reasonably believes force is necessary to protect against the unlawful use of force. (Subjective and objective component—the defendant must reasonably believe he is in danger AND a reasonable person would think he is in danger.) o The amount of force used in defense must be reasonable. The defendant cannot use deadly force unless he reasonably believes he faces deadly force. Defense of property: the defendant may use reasonable (not deadly) force to protect against an imminent threat to property. o Merchant’s defense: store owner can reasonably detain a person the store owner reasonably believes has stolen goods. Public necessity: the defendant acts to protect the public from a greater harm that would have occurred had he not acted. Private necessity: The defendant acts to protect an interest of his own. He is not liable for a tort, but he must still pay for actual damage caused. o Ploof v. Putnam: Plaintiff moored boat to Defendant’s dock to wait out a storm. Defendant wrongfully untied the boat. Plaintiff is not liable for trespass but must pay for damage. Transferred-intent doctrine: intent can “transfer” for torts involving assault, battery, false imprisonment, trespass to land, or trespass to chattels. Tender-years doctrine: in most states, children under the age of seven cannot be liable for intentional torts. INTRODUCTION TO NEGLIGENCE Negligence replaces the common law strict liability approach, which found liability regardless of whether the defendant acted reasonably. Elements of negligence: To sue for negligence, one needs to show all four elements: (1) duty, (2) breach, (3) causation—both actual and proximate cause, and (4) damages. 1. DUTY The reasonably prudent person standard applies. Heaven v. Pender. A few factors are considered in determining if the defendant was acting as a reasonably prudent person: • Children: Use a subjective standard for children. Look at the age, intelligence, and experience of the child. An exception exists if the child was engaged in an adult activity. If the child was engaged in an adult activity, use the reasonably prudent person standard. Examples of an adult activity include shooting a gun or driving a car or boat. • Physical characteristics: take into account if the defendant is physically impaired, but do not take into account if he is mentally impaired. • Professionals: take into account the defendant’s superior knowledge. • Emergencies: the jury is instructed to ask what a reasonably prudent person in the same situation would do. A few other factors to consider when noting the duty owed by the defendant: • Custom: Custom is generally evidence of a duty of care. In professional malpractice cases, it is conclusive evidence. • The T.J. Hooper: Industry custom is for ships to have radios. A ship without a radio got lost in a storm. That all other ships have radios is merely evidence that a reasonably prudent person would have a radio, it is not conclusive. • Duty to control third parties: Generally, there is no duty to control the conduct of third parties. However, there is a duty to act reasonably to control third parties if one has a special relationship with the third party (e.g., an owner and the occupiers of his land, a prison and its prisoners, or a mental institution and its patients). • Nonfeasance vs. misfeasance: Generally, there is no duty to affirmatively act to warn or prevent harm. There are several exceptions: Volunteers: once someone chooses to rescue, he has a duty to act reasonably. Relationship with victim: a special relationship, such as parent-child or landlord-tenant, may create a duty to act reasonably. Owners and occupiers of land • Undiscovered trespasser (a person the premises possessor does not or should not know of): No duty of care is owed. However, the premises possessor must not act wantonly or willfully. • Discovered trespasser (a person the premises possessor knows or should know is trespassing): the premises possessor must warn of or make safe unreasonably dangerous artificial conditions that he knows of. • Licensee (social guest): the premises possessor must warn of or make safe all concealed dangers that he knows of. • Invitee (one that enters a public place or business): The premises possessor has a duty to inspect the premises for danger and must warn of or make safe all dangers that he knows or should know of. Tip: this is the only case where a duty to inspect is imposed on the premises possessor. Negligence per se (violation of a statute) If the plaintiff establishes negligence per se, the plaintiff has conclusively proven duty and breach. He still must prove causation and damages for his negligence claim. • • Elements: (1) violation of a statute, (2) a person within the class of persons the statute is designed to protect was injured, and (3) the type of injury the statute was designed to prevent occurred. Exceptions: impossible to comply with statute, a reasonable effort to comply was made, compliance is unsafe. 2. BREACH The plaintiff must show that the defendant breached his duty of care. Res ipsa loquitor: When the circumstances surrounding the injury are unclear, if the plaintiff can show that the injury was likely the result of negligence and that it was likely the defendant that was negligent (e.g., if the defendant had exclusive control of the instrumentality causing the injury), the plaintiff has made a case for breach. Tip: If the plaintiff can show this, it means that the case should go to trial, and no directed verdict should be entered for the defendant. It does not necessarily mean that the plaintiff wins his case. • Byrne v. Boadle: While passing by a building, Plaintiff was injured by barrel of flour being lowered from above. Even though Plaintiff could not show how Defendant was negligent, there is a presumption of negligence when the flour was within Defendant’s control. Learned Hand formula (from United States v. Carroll Towing Co.): burden of preventing accident < (probability x loss from accident) (B< PL) If the burden of prevention is less than probability times loss, it is likely a breach of the duty of care to not take steps to prevent the accident. 3. CAUSATION There are two types of causation that must be present—actual (but for) and proximate. • • Actual (but-for) cause: There must be a factual connection between the breach and the injury suffered. (Ask yourself: But for the defendant’s actions, would the injury have occurred anyway? If yes, then there is no actual cause.) o Multiple causes: If there are two or more defendants, use the substantial factor test. If the defendant’s breach was a substantial factor in causing the harm, the defendant is liable. o Alternative causes: The plaintiff must show that all potential defendants are joined in the lawsuit and all defendants are negligent. The burden then shifts to each defendant to show his breach of duty was not the actual cause of the harm. • Summers v. Tice: Two hunters shoot at deer; one of them hits third hunter. No one knows which of two shooters hit third hunter. The alternative causes doctrine may be used to hold the defendants liable. o Market-share liability: The plaintiff is injured by a product that is produced by multiple manufacturers, each with a share of the market. It is impossible to determine which manufacturer made the product. All market participants are actual causes of the plaintiff’s harm. Proximate cause: The harm must be a foreseeable result of the breach. Tip: Watch out for an extraordinary or unforeseeable sequence of events at the time of the act or an unforeseeable intervening action. Examples of harm that is considered foreseeable: (1) medical malpractice that occurs after an accident, (2) harm that occurs during rescue efforts to protect life/property endangered by the defendant’s negligence, or (3) disease or subsequent accident that occurs after an accident. o Palsgraf v. Long Island Railroad Co.: Railroad attendant assisted by pushing passenger holding box of explosives onto moving train, causing box of explosives to fall and explode. Explosion caused scale on the platform to fall on Plaintiff. This type of harm to this Plaintiff was not foreseeable, so the railroad is not the proximate cause of Plaintiff’s injuries. 4. DAMAGES The plaintiff must suffer actual harm to successfully sue in a negligence action. Economic damages are those that relate to the loss (e.g., medical bills and lost wages). Noneconomic damages are compensation for nonmonetary losses (e.g., pain and suffering). • There are three types of damages: (1) Actual/compensatory: compensates the plaintiff for the loss or injury that has occurred. (2) Nominal: a trivial sum of money awarded to the plaintiff, who has established a cause of action but has not established damages. (3) Punitive: Designed to punish the defendant for outrageous conduct and deter others from acting similarly. Tip: this is usually only available if the defendant’s conduct was reckless, malicious, or willful and wanton. Tip: The plaintiff must show actual damages to recover in a negligence action. The plaintiff cannot recover punitive damages or nominal damages in a negligence action. • The plaintiff is not permitted to recover in negligence or strict liability if he has suffered a pure economic loss (i.e., no injury to himself or his property). Eggshell-skull rule: recovery is allowed if some harm is foreseeable, even if the extent of the plaintiff’s harm was unforeseeable. Negligent Infliction of Emotional Distress (NIED) This claim is brought when a plaintiff suffers emotional distress as a result of the defendant’s negligence. There are two methods of establishing NIED: (1) Zone-of-danger rule: the defendant acts negligently, the plaintiff is within the zone of danger, the plaintiff fears an impact (a near miss), and there is a physical manifestation of that fear (e.g., heart attack, miscarriage). (2) Bystander recovery: The defendant acts negligently, the plaintiff witnesses the negligent injury of a close relative, and the plaintiff suffers physical symptoms of emotional distress. But, a court may liberalize rules where the defendant’s negligence creates a great likelihood of distress (e.g., mishandling of a corpse). Affirmative Defenses to Negligence • • • Contributory negligence: the plaintiff cannot recover if he was even a little bit negligent unless the defendant had the last clear chance to avoid the injury. Comparative negligence: a judge or jury compares the plaintiff’s fault with the defendant’s fault and assigns percentages to each. o Pure comparative negligence: The plaintiff can recover no matter how negligent he is. His damages are simply reduced by his percentage of fault. o Partial (modified) comparative negligence: if the plaintiff was more at fault than the defendant (or, in some states, if the plaintiff and the defendant were equally at fault), then the plaintiff cannot recover. Assumption of risk: If the plaintiff knew of the risk and voluntarily assumed it, generally he cannot recover damages (however, some courts will analyze assumption of risk using a comparative fault analysis). It can be express or implied. Multiple Defendant Issues • Joint and several liability: In a joint and several liability jurisdiction, the plaintiff may recover all of his damages from any single defendant (and the defendant may seek contribution from the codefendant(s)). Each defendant is liable for all damages. In a several liability jurisdiction, each defendant is liable for only his percentage of fault. • Employees and other agents: Employers or principals are vicariously liable for the torts of their employees or agents that are committed in the course and scope of employment or agency. (Note: Intentional torts are usually outside the scope of employment unless they were foreseeable or they were committed for the purpose of serving the employer.) If an employer is found liable under this theory, he may seek indemnity (i.e., full payback) from his employee. • Independent contractors: A principal generally is not liable for the torts of his independent contractors. However, a principal is liable if the duty is nondelegable or an inherently dangerous activity. The principal may also be liable for his own negligence in hiring, firing, or supervising the contractor. Tip: a duty generally is nondelegable if it involves safety. • Parents generally are not vicariously liable for the acts of their children. However, a parent may be directly liable for his own negligence (e.g., failure to supervise). Strict Liability In a strict liability case, the plaintiff must prove duty (which, in this case, is absolute), causation, and harm. Tip: in a strict liability case, whether the defendant was acting reasonably is immaterial. • • • Abnormally dangerous activities: an abnormally dangerous activity is one that creates a foreseeable risk of serious harm even when reasonable care is exercised, and the activity is not a matter of common usage in the community. o Restatement (Second) of Torts: Factors to consider in determining whether an activity is “abnormally dangerous”: existence of high degree of risk, likelihood of great harm, inability to eliminate risk by reasonable care, extent to which activity is a matter of common usage, inappropriateness of activity to place carried on, and extent to which value outweighs risk. o Indiana Harbor Belt Railroad Co. v. American Cyanamid Co.: Hazardous material leaked from train car. Court held that strict liability does not apply—the accident could have been avoided by reasonable care. Thus, this is an ordinary negligence matter. Wild animals: Defendant is strictly liable for foreseeable harms caused by wild animals. Examples of wild animals include skunks, bears, and monkeys. Dogs, cats, cows, and honey bees are not wild animals. Strict liability also applies to products liability.