Torts Outline – Condensed (1L)

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.