#10925 - Outline Torts Beskind Copy - Torts

1. Overview 3

1.1 Goals of the tort system 3

1.2 Categories of tort damages 3

1.3 Damage continuum 3

2. Intentional Torts 3

2.1 Basic Prima Facie Case 3

2.1.1 Volitional Act 3

2.1.2 Intent 4

2.1.3 Causation 4

2.1.4 Injury 4

2.2 Specific Prima Facie Cases 4

2.2.1 Battery and Assault 4

2.2.2 Intentional infliction of emotional distress (IIED) 8

2.2.3 False Imprisonment 9

2.2.4 Trespass to land 11

2.2.5 Trespass to Chattels 12

2.2.6 Conversion (with Trespass to Chattels) 13

2.3 Affirmative defenses 13

2.3.1 Consent 14

2.3.2 Self-defense/ defense of others/ defense of property 15

2.3.3 Discipline 17

2.3.4 Necessity 17

3. Negligence 18

3.1 Elements of Negligence 18

3.2 Duty (Question of law for the judge) 18

3.2.1 Risk creation + foreseeability (Misfeasance) 18

3.2.2 Affirmative duty to warn and rescue (Nonfeasance) 18

3.2.3 Arguments for/ against new rule 20

3.2.4 Landowner liability 21

3.2.5 NIED 22

3.2.6 Economic Harm 23

3.3 Reasonable person and standard of care 23

3.3.1 Hand Formula 23

3.3.2 Internal Circumstances: Children/ mentally disordered/ disabled 24

3.3.3 External Circumstances 24

3.3.4 Violation of statute as negligence 25

3.3.5 Malpractice 25

3.3.6 Res Ipsa Loquitur 26

3.4 Causation 28

3.4.1 Actual cause/ but for cause/ substantial cause 28

3.4.2 Proximate cause/ legal cause/ scope of liability 29

3.4.3 Intervening cause 29

3.5 Damages 30

3.6 Defenses 31

3.6.1 Immunities 31

3.6.2 Contributory negligence 32

3.6.3 Comparative negligence 33

3.6.4 Assumption of risk 33

3.6.5 Mitigation 33

3.7 Multiple parties liability 34

3.7.1 Vicarious liability 34

3.7.2 Joint and several liability 34

3.7.3 Group liability 35

4. Strict Liabilities 35

4.1 Animals 35

4.2 Abnormally dangerous activities 36

5. Miscellaneous 36

1. Preventing Retribution

2. Compensating the victim

3. Increasing safety

4. Deterrence

   1. Punishing the tortfeasor (specific deterrence: Deterring the wrongdoer individually)

   2. Deterring future torts (general deterrence: People become aware of general compensation paid and people are more careful).

5. Avoiding societal economic costs

   1. Prevent people from falling back on society after injury

1. Economic

   1. Property damages

   2. Lost wages

   3. Bills: medical, funeral etc.

2. Non-economic damages

   1. Physical: scars, loss of use, death

   2. Emotional: pain, depression, anxiety

   3. Reputational: defamation

1. Nominal damages: symbolic, indicates that one party is wrong

2. Compensatory damages: designed to make P whole insomuch as compensation can do

3. Punitive damages: to punish the tortfeasor, can be adjusted depending on D’s wealth

1. Exclude: spasm, sleep/unconscious actions, manipulation of the actor’s body by others

   1. E.g. faint and fall

2. Include:

   1. reactions to emergencies: somebody coming at me, I put my hand out

   2. responses to threats and fear: people threaten me with a gun to hit another

3. Volitional act is not about the end or intermediate result of the act

1. P needs to prove that D acts with the purpose to cause the consequence or that D knows or should have known with substantial certainty that the act will cause the consequence.

2. Intentional tort or recklessness distinction

   1. Some industrial activities that involve a high risk of harm may reasonably encompass situations that fall within the scope of an intentional tort rather than recklessness if the following is demonstrated:

      1. Knowledge by the employer of the existence of a dangerous process, procedure, instrumentality or condition within its business operation;

      2. knowledge by the employer that if the employee is subjected by his employment to such dangerous process, procedure, instrumentality or condition, then harm to the employee will be a substantial certainty;

      3. the employer, under such circumstances, and with such knowledge, did act to require the employee to continue to perform the dangerous task

   2. Deliberate removal by the employer of an equipment safety guard is evidence, the presumption of which may be rebutted, of an act committed with the intent to injure another.

   3. Recklessness: conduct creates a known risk that can be reduced by relatively modest precautions.

1. Actual causation = but for causation: cause in fact of the plaintiff’s injury

   1. Intentional tort only has actual causation

2. Legal causation = proximate causation: legally fair to hold the defendant liable for the injury

1. Injury: invasion of legally protected interest of another

2. Harm: loss or detriment in fact

3. Damages: what the P claims for, in dollars

   1. always consider damages in the injury part

1. An actor is subject to liability to another for battery if he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and a harmful or offensive contact with the person of the other directly or indirectly results.

2. An actor is subject to liability to another for assault if he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and the other is thereby put in such imminent apprehension.

3. An assault usually precedes battery.

4. Act

5. Intent FORK: dual/ single intent

   1. Dual intent (modern trend): intend the contact and harm.

      1. Transferred intent (Hall v. McBryde):

         1. (Intend a different kind of consequence) If an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact, or of putting another in apprehension of either a harmful or offensive bodily contact, and such act causes a bodily contact to the other, the actor is liable to the other for a battery although the act was not done with the intention of bringing about the resulting bodily harm.

         2. (Intend a harm to a third party) If the P acts intending to cause a harmful or offensive contact with a third person, or an imminent apprehension of such a contact, but causes such a contact with the D, P is liable to the D as if P intended to so affect D.

            1. Throw a ball at a crowd: intent requirement is met because he knows with substantial certainty that he would hit someone. Not transfer intent because there is no specific victim.

            2. A aims at B, mistaken B for C, and actually hits B, this is not transfer intent, as A intends to hit B. This is a mistake of fact about B’s identity.

      2. P needs to prove that D acts with the purpose to cause the harmful or offensive contact, or an imminent apprehension of such a contact, or that D knows or should have known with substantial certainty that the act will cause the a harmful or offensive contact or an imminent apprehension of such a contact.

         1. I throw a stone at someone thinking that it will miss – purpose to cause harm

         2. I empty a bottle of water from the second floor – substantially certain

         3. Substantial certainty test is a subjective test. Must really know with substantial certainty.

   2. Single Intent (majority rule): intend to act

      1. Includes: a bad joke

      2. Excludes: stumbles on someone (may be negligence)

   3. Purpose of intent requirement: confine intentional tort liability to cases in which the defendant acts with a higher level of culpability than mere carelessness.

6. Causation: causes (directly or indirectly) harmful and offensive contact, but for P’s act, the injury wouldn’t have happened.

7. Injury (damages):

   1. Offensive or harmful contact – Battery

      1. A bodily contact is offensive if it offends a reasonable sense of personal dignity.

         1. Circumstances: If prior course of conduct between the parties indicates that they accept contacts that would ordinarily be considered offensive, the contacts are not offensive.

         2. If D acts knowing the particular sensibility of the person that would be offended by the contact, the contact will also be considered offensive. (Cohen)

         3. Social usage: unwarranted by the social usages prevalent at the time.

      2. Contact examples:

         1. The D need not actually touch the P, or even be present at the time of the contact:

            1. touch with a stick

            2. set up a wire and P trip overs it later

            3. lace one’s drink with poison

            4. blow smoke on P’s face (FORK: a kind of substance/ lack of physical touching)

            5. provide a hotel room infested with bedbugs (substantial certainty that P would suffer an offensive contact with the bugs)

            6. moving a chair when D know with substantial certainty that P would sit down and land on the floor

            7. set up security system in his car that administers an electric shock to trespasser.

         2. Objects intimately associated with D’s body: hat, coat, glasses.

         3. A, who is suffering from a contagious skin disease, touches B's hands, thus putting B in reasonable apprehension of contagion. This is an offensive touching of B.

         4. Contact need not be with D or instrumentalities of D. Contact with the ground or with other objects will suffice.

      3. Contact and consequences

         1. Actor is liable for the unintended consequences caused by contact. E.g. D trips P, but P falls down the stairs, hurt by a stone, and suffers concussion. The tripping part is a complete battery, and D is responsible for the concussion even though D did not intend to cause concussion.

         2. D intends a blow, but causes more injury than expected. If the blow is tortious, then D is responsible. If the blow is not tortious, then D not responsible.

         3. A intentionally hits B on the head. B is taken to the hospital where, by a gross and not expectable error, a nurse gives him a poison instead of a medicine, as a result of which he is seriously harmed. It may be...