Torts Outline – Condensed (1L)


Top 4 Supplements for 1L Torts:

We need to consider two factors in Tort Liability
Intentional Torts
  • Battery Intentional infliction of harmful or offensive bodily contact (define each word)
    • Has to be an act
    • has to be intent, to bring contact or apprehension
    • Intent 2 prongs
      • Purpose of having contact OR
      • Knowledge contact is substantially certain to be produced
        • Dont need intent to “injure”
    • Can transfer intent – oops shot wrong person
    • Contact doesnt need to be direct – Garret v Daily Boy
    • Contact can be with something the person is holding, borderline is camera in girl’s hand
    • Contact has to be harful or offensive to a reasoanble sence of personal dignity
      • Unless the D knows of the senstivity and seeks to exploit it
      • Offensiveness depends on the context – singles bar not offensive, curch offensive
    • Altering structure of body without consent – wrong/different surgery
      • Implied consent if it is necesary at the time, need to do heart surgury immediately etc
    • You can Consent to a battery
      • You can imply consent, in a soical situation
  • Assault same But here you have apprehension of conteact
    • Threat of force intended to cause contact or apprehension of contact (that is harmful or offensive)
    • And results in a well founded (to a reasonable person) apprehension of imminent contact
    • Well founded apprehension
    • You need apparent ability to carry out
  • False imprisonment
    • Lack of consent
    • Confinement – if free to leave no confinement (as long as its reasonable, it CAN be inconvenient though)
    • Preventing someone from going where they want to go is not confinement (cant go in club)
    • You need to be aware of confinement
      • Restatement says you dont need (awareness)  if there is harm
  • All torts with consent factor
    • You can imply consent, eg in a soical situation
    • sports, you participate then you implied
    • soemtimes consent is void like in a fight, because against public policy
  • Self Defense
    • You can use reasonable force
    • Deadly force only if serious threat of bodily harm
    • You can make a reasonable mistake in identity (Cop comes out of mob)
    • If an attack is repulsed you privilege ends
    • You can use reasonable force to protect someone else.
  • Intentional Infliction of Emotional Distress
    • Modern rule – you can have cause of action if there is extreme and outrageous conduct
      • beyond generally accepted standards of decency.
      • Know succeptibility rule – if the D knows you are sensitive and exploits it then can be liable
    • Different relationships matter: boss v. worker different then worker v. worker
    • Distress mus be severe
      • measured by duration
      • under restatement you dont need physical manifestations
    • Distress must be caused recklessly or intentionally

Negligence (Unintentional Torts)

  • Recovery based on justice
  • Loss shifted to the defendant
  • Loss is still there but now it is on the defendant due to fault
  • Prior to workers compensation
  • Tort law is mage by judges whose idealogoy change
  • Large scale manufacturing and transportation changed a lot (industrial revolution)
  • Escola – Traynor says loss isnt really just shifted, it is actually distributed
    • Traynor says distribution is good
    • Enacted strict product liability ~1960
      • Requires showing a defect, not as easy as you might think
  • Tort law is taking a more expansive posture
  • Courts did not view themselves as law makers
    • In invitee area they created a new class public invitees
  • Begin 1980 trimming some of the expansion to more conservstive views
  • Tort law made state by state by each supreme court
  • Brown v Kendal
    • Corner stone of modern tort
    • Must prove negligence
    • All or nothing defence : no contrib negl
  • Balanceing Learned Hand Test
    • Used priarily by Appellate courts
    • Some sence of a likely hood of injury
    • AND the seriuos of the injury that may occur
    • If it costs more to avoid the accident then society will probably not want to pay that cost
    • Has there ever been an accident before?
  • Jurys are not instructed to use Learned Hand they are told to judge as an Ordinary Reasonable Person
    • Society demands this standard
    • What makes a reasonable person
      • Blind? well you have to act as a reasonable Blind person, which may mean you dont do certain things
      • Mental Conditions ARE NOT TREATED AS PHYSICAL, you are STILL HELD TO OBJECTIVE ordinary reasonable person
      • Experts Dr, Lawyer, who know more are held to a Higher standard (of what an ordinary Dr or Lawyer would know)
      • If you Old you are still held to ORP standard
      • Children are exception they are held to their age and general knowledge as a similarly aged child (alot has changed about this since the 60s)
        • Unless engaging in adult activities, then the child is treated as an adult (driving, boating, etc.)
  • Who applies the Ordinary Reasonable Person test?
    • Some courts adopt rules of law (RR crossing cases)
      • Holmes: Heres the rule: you must get out of your car and look for train, IF  you dont get out to look then you are contributory negligence
      • Cardozo: points out that it may not do any good to get out of the car
    • More Modern view is that it should go to the JURY
      • Unless the jury would obvi only come to one conclusion
      • Some courts do use the rule though, (Baseball screen case, you only have to screen the feild so a reasonably expected amount of people can be protected)
  • Custom Standards (Common Carrier, Dr, Lawyer, Accountant etc.)
    • Relevant but court not bound by it
    • Andrews v. Airline case
      • Introduces new liability rule
      • Common carrier all the way back to 19th are held to UTMOST CARE
      • Airline baggage case
      • CALIFORNIA has this rule and was even extended to Indiana Jones Ride AND Elevators/Escalators
      • New YORK abolished this rule believes that common law is sufficiant
        • Common carriers in NY only owe reasonable care
    • Statutes, courts are doing the same thing that rule of law cases did
      • If you dont stop at a stoplight then that is negligence per se
      • Becasue the statute is designed to protect the particular class of people (drivers) from that particular hazard (running red lights)
    • Tedla case
      • Might been seen as a contradiction to the statute
      • Because it was safer to walk on the other side of the road
        • Creates rule of the road statute, (as opposed to life and limb)
        • It is still negligence per se, but it is excused because of the type of statute
    • Doctors liscneses usually not negligence per se
  • Cases when you need circumstantial evidence
    • The length of time a spill on floor due to its conditon
    • Constructive notice doctrine in slip and fall cases
      • You (P) must prove Constructive notice ^
      • Clean spill v dirty spill
    • This rule doesnt allow the P to recover even if it proves the D practices of the establishment were unreasonably unsafe
      • Because you have to show that the particular spill cause the accident, not just general procedure
    • Courts next start adapting and dispense the constructive notice
      • Starts with method of business, self service
      • This ^ can be expand to pizza parlors, costco etc
      • Mode of operation rule: The hazardous condition regularly arises, customers regularly open shampoo and spill it on the floor
        • ^ this shows that sometimes P can recover even though the shampoo hit the floor 5 seconds before fall
        • That means the liability can be without cause this is ALMOST STRICT LIABILITY
        • Example of the law changeing over time
  • Res Ipsa Loquitur (older doctrine)
    • Barrel out of window
    • This sort of accident would not occur without negligence
    • the fact the accident happend shows negligence
    • The cause was in exclusive control of the D
    • The P did not contribute to the accident
  • Saw a modern application of Res Ipsa in Escola case
  • Traynor characterized this as an expansive res ipsa verdict, because there was enough evidence to allow a directed verdict for the D, (the D was reasonable)
    • By giving it to the jury P wins (because juries are sympathetic)
    • it is essentially imposing strict liability
  • Ibarra Case
    • Appendectomy, injured the guys shoulder
    • Res Ipsa Loquitur
    • This ordinarily would not occur without negligence
    • injury to unconsious P to unrelated part of the body
    • P could not establish exclusive control he didnt know who did it cuz he was asleep
    • This was obvi negligence, but Who? Do we need strict liability?
    • HOLDING when you have an unconsious patient with an unrelated injury then:
      • You can bring together the partes that had control at one time or another of one or more of the instrumentalities that cause the acccident
      • Once you get out of medical profession: unconsious, unrelated body part then it becomes difficult to apply Ibarra
  • Broken Wire in Neck case
    • P didnt enjoin all the parties and there fore the responsible party may not have even been in court
  • CA has a case involving owner of building
    • Subcontractor to repair an elevator, ladder was left out causing harm
    • Allowed Ibarra theory here
    • TRAYNOR Dissented
      • It would be the responsibility of the employer, but not the employee
  • Some courts have rejected Ibarra, because modern discovery is available to find out what really happend.
  • 1960’s we have a special rule for manufacturers
    • The have a duty to create safe products and to spread losses
    • Manuf have Strict tort liability for defective products, (Traynor originated this and it quickly spread to all courts)
    • Even an injured bystander
  • Who can you sue?
    • Manufacturer? YES
    • Retailer? Yes, may be the most convenient, manuf may be bankrupt
    • Lessor? Yes, if they lease products as a part of their business. Washing machine rentals, Hertz, BMW
      • Doesnt distingusih between long term short term. both liable
    • Services that make use of a product (Bus Line)? No, not Strict Liability
  • Manufacturer defects
    • The onese that come of the line wrong, different than others
  • Design defects
    • Onese with unsafe design, (exceptions for Steak Knives)
      • Manuf will have to show that knife is not excessivly dangerous compared to other knives
  • Barker v Lall
    • Gave test for defectiveness
    • Two prong OR test
      • Ordinary consumer expectation, when used in its intended, OR
      • Reasonably foreseeable manner
    • Does risk of harm outweigh the benefits?
  • Hindsight – You use the excessive preventable danger at the time of trial. (Could be a 10 year old product)
  • Court in the 1980s adopts restatement 3rd of Torts
    • Brings design defects back to neg law
      • P must proove forseeable risk
      • Could be reduced or eliminated by a reasonabley alternative design
      • lack of change in design makes the product unreasonbly unsafe
      • A negligence type standard
      • No consumer expectation needed
    • As we enter this more conservative era we may have seen Barker overruled
      • Sule case asks to overrule Barker, but they decline BUT
        • They will limit consumer expectation requirements to:
          • The every day experience violated everday use consumer expectations
          • Excludes very complex products
        • Can be defined expansively or narrowly
          • Car rolls over blows up at 2mph = design defect
  • Reasonable Care
  • Utmost Care for Common Carriers
  • And Srtrict Product LIability
  • Custom Standard (Medical Profession sets own standard)
    • Standard is ordinary medical practice
      • Requires expert to testify what the standard is AND
      • That the D deviated from it
      • You are judged by your own school of thought as long as that school is reputable
  • Does the expert have to be from same/simlar locality (trad rule) or from the same exact feild?
    • Early on courst said no must be the same feild not similar
    • Later courts said yes, you just need to have knowledge of the procedure, dont need to be local
    • Now pool is national for witnesses ( to stop conspiracy of silence)
  • Common knowledge exception
    • When it is obvioulsly negligent (scapel left ) then you dont need expert witness.
  • Can you use Res Ipsa Loquitur to bridge the gap, whether it ordinarily occurs without negligence
    • P wants to use expert to show the jury if it is ordinary
    • D also wants an expert to prove its not negligent
  • Informed Consent
    • Doctor reasonable no negligence
    • Plaintiff needs to be reasonably informed of the risks of the procedure
    • What is hte standard of care?
      • Only have to inform what is ordinarliy done
      • CA says no, this is patient oriented
        • You need to inform of ANY foreseeable risk
        • Alternative procedures
        • AND ordinary practices of Dr
      • P has to establish that he would have not had the procedure if he was informed
        • Not based on patient but on ORP for obvi reasons
  • Duty/No Duty Owed to Others
    • People dont owe an affirmative duty to others (baby on train tracks…you dont need to help
    • Misfeasance – Resuce begins then you owe a duty of care
    • Nonfeasance – you dont need to help at all
  • Tarasoff rule what is owed when a patient prdicted or should have of a harm to 3rd party
    • Traditionally said no duty
    • CA says we really dont like no duty rules, look at Thing and Legg which came before
      • Foreseeability is most important factor
      • We dont need to abolish the rule, there is an exception
        • If D has special relation ship to both patient and victim
          • Court says special relation ship should be EXPANDED to only reqire special relationship with ONE PARTY
    • You cant take Trasoff much further, becasue courts will not impose a special relationship on law enforcement
  • Landowner Case What duty does the landowner owe
    • Invitee there for spec purpose
    • Pub Invitee, land open to public (most courts dont recognize)
      • Owed full duty of care
    • Licensee
      • Owed a duty against wanted willful misconduct, consealed traps, and in some juris care of Active Operations
      • They are allowed but not for business purpose
      • Friends visiting
      • Land not open to the public
    • Trespasser
      • There without permission
      • Duty of wanted willful miscondeuct, consealed traps, and in some juris care of Active Operations
      • CA trespassers get general duty of due care
        • But the P still needs to prove negligence
    • Protection for recreational land
      • Most states, parks streams lakes
      • CA thought same ^ Court of App said it has to be suitable for recreation purposes
        • But the statute doesnt require suitablility so the court got rid of this
    • Landowner
      • CA and other states have abolished old rules set and put up a Reasonable Care Standard
      • Crime?
        • Only has duty to protect agains same prior crimes on premises
        • EXpanded to similar crimes closeby
        • EXpand even more, we abolish prior similar and base it on FORESEEABILITY
      • Court in CA has CUT back on expansion
        • When prevention is very costly then P must show a high degree of foreseeability
          • Almost always requires prior similars
        • Relaxed in an opinion by J George, makes sure to say that it USUALLY requires similars
  • EMOTIONAL DISTRESS
    • Fear for your own safety
      • Used to have phys manifestations
      • Modern view says ONLY Stress has to be severe or serious
    • Fear for safety of another
      • Traditionally no recovery
      • Modern you can recover for your own fear AND for your child, relative, and spouse
        • Some juris Must be in zone of danger
        • CA doesnt think so it uses Dillon, three guidelines
          • Near the scene
          • Close relationship
          • Foreseeability is necesarry
      • Still born Baby Case
      • Closely related
      • at the time
      • and aware of injury
      • and serious ED beyond ordinary obs, but cant be abnormal
    • Some courts have flirted with foreseeabiltiy but abbandoned
  • Loss of consortium Husband Wife –> Kids yes
    • Kids loss of parents, usually no!
  • Economic harm is special and immunities have been abolished

Cause in Fact

You must prove a causal link to your injury

  • Stubb case dirty water
    • all those other causes
    • court could say you havent singled out the defendant
    • But there are a lot more cases this year
  • Court says there probably was a causal link
  • Common sense judgement based on policy that cause in fact was established
    • P only has to point with reasonable certainty that the D caused it
    • The opposite of this would be mere conjecture
  • Stairway cases
    • 1919 says mere conjecture
    • 1991 Alaska, NO it is reasonably certain that the low light caused the fall
  • Classic example is the article of the drunk driver
    • Jurys will strive to impose liability on drunks even if a sober driver couldnt have avoided it eithr, just because plicy against drunks
  • In some cases the But For test breaks down
    • Two forrest fires, note 9 pg 359
    • Each fires are roaring and would have destroyed the home
      • But before the fires hit they merge
      • Neither is a but for cause, neither is a necessary cause
      • Either on would have caused it
        • Neither one is a but for cause
    • Substantial factor test, each fire can be considered a causal link
      • What if someone threw a ciggarette into the large fire and “added” to it?
        • Not a substantial factor
    • What if one fire was caused by nature?
      • Since the natural fire would have destroyed the house no liability
      • Others say NO NO NO, when there are two responsible parties, ie Nature and Defendant one can be liable for 100%
    • Discrete causes
  • Joint and Several Liability JSL
    • Traditional rule, each is Jointly and Severally Liable, you dont proportion the loses between defendants
  • Some courts say its impossible to proportion
    • Same argument against comparitive fault (contrib) because how can you tell?
  • Other courts say no you really can determine comparative percentages.
  • Now that Courts say you can divide proportion of fault
    • Defendants now say you should divide damages too BUT
    • P say thats not fair, we want to be able to recover 100% from either
    • Court says NO the whole point is P compensation, we are not gonna kill that
      • CA We do think that Defendants can proportion  it among them selves, (Comparative Indemnity) but Defendants need to work this out.
      • Probably have to go to court D vs D to establish liability %
    • CA only abolished JSL for non-economic loss
    • CA has JSL for economic loss
  • P gets to pick eeny meeny miney mo D2 you write me a check for $1,000,000! D2 –> D1 and D3 write me a check for your part or else we will litigate.

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