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Torts Outline – Steven Finz I. Intro a. What is Torts? i. The law can be divided into two broad areas: substantive and procedural ii. Torts concerns Substantive law 1. What are people’s duties and rights 2. A duty is a legal obligation 3. A right is something you are entitled to have done for you. 4. If I owe you ten dollars, I have a duty to pay and you have a right to receive. 5. A tort is a violation of a duty that one person owes to another without an agreement. II. Where Issues Come From a. Three Factors where all Torts come from i. Basis of Liability 1. There is no tort unless someone who has done something for which the law imposes liability. 2. Fault a. Intent b. Negligence c. Recklessness 3. Strict Liability (Liability without fault) ii. Proximate Cause and Damage (Harm a Plaintiff sustains) 1. With very few exceptions, liability is not imposed unless there is actual damage or injury. Even if a plaintiff is injured, he/she must show that the injury was proximately caused by the defendant’s behavior.

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Torts Outline – Steven Finz

I. Introa. What is Torts?

i. The law can be divided into two broad areas: substantive and proceduralii. Torts concerns Substantive law

1. What are people’s duties and rights2. A duty is a legal obligation3. A right is something you are entitled to have done for you.4. If I owe you ten dollars, I have a duty to pay and you have a right

to receive.5. A tort is a violation of a duty that one person owes to another

without an agreement.II. Where Issues Come From

a. Three Factors where all Torts come fromi. Basis of Liability

1. There is no tort unless someone who has done something for which the law imposes liability.

2. Faulta. Intentb. Negligencec. Recklessness

3. Strict Liability (Liability without fault)ii. Proximate Cause and Damage (Harm a Plaintiff sustains)

1. With very few exceptions, liability is not imposed unless there is actual damage or injury. Even if a plaintiff is injured, he/she must show that the injury was proximately caused by the defendant’s behavior.

iii. Affirmative Defenses1. A legal argument that releases a defendant from all liability based

on some privilege or special circumstance.a. I.E. Self-Defense

III. Intent in Generala. In the law of torts, intent is generally defined is that a defendant desired or was

substantially certain that a specific result would occur…+ Intentional Tort you are examining.

b. Intent is a SUBJECTIVE standard (what was going on in the person’s mind) proved with OBJECTIVE evidence. I.E. What the person actually thought, and not what a reasonable person would have thought.

c. Difference between VOLUNTARY actions and INTENTIONAL actions

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i. I.e. if you voluntarily point a gun at someone and pull the trigger, but you think the gun is empty. You acted voluntarily, but without intent.

d. Also difference between INTENT and MOTIVEi. i.e. You are motivated to play a prank on a friend because it would be

funny, however your friend is injured and does not think it is funny. You still intentionally played the prank, but your motive was not to injure.

IV. Intentional Tortsa. Intentional Invasions of the Person

i. Battery – Essential Elements1. Intentional

a. The desire or substantial certainty that harmful or offensive contact will occur.

2. Harmful or Offensive Contacta. Harmful means injury occursb. Contact is offensive if P does not authorize or give

permission for the contacti. Objective standard to define offensive contact: The

kind of contact a reasonable person would not be offended by.

ii. A D’s knowledge of a person’s special sensitivity to certain contact DOES result in a battery. (I.E. If I know you are seriously offended by people tapping you on the shoulder, and I intentionally tap you on the shoulder, I have committed a battery.)

3. With the Plaintiff, or some logical extension of the plaintiff4. WITHOUT CONSENT OR PRIVELEGE. 5. “But for test”6. “Take the Plaintiff as you find them”

a. Means that the Defendant is liable for all consequences proximately flowing from the completed harmful/offensive contact.

ii. Assault – Essential Elements1. Intent

a. Defendant’s desire or substantial certainty that his/her act will produce a harmful contact, offensive contact, or apprehension of such contact.

2. Inducing Plaintiff’s reasonable apprehension of harmful or offensive contact.

a. Apprehension does not mean fear, but fear ALWAYS includes apprehension.

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b. Apprehension means anticipating or looking forward to something with discomfort.

i. I threaten to punch Mike Tyson in the face, he might not be afraid, but he is definitely experiencing apprehension.

c. There is no assault unless the apprehension or fear is reasonable.

i. I.e. if someone is deathly afraid of shaking hands with someone, a reasonable person is not afraid of these things and thus attempting to shake hands with this person is not assault.

ii. However, specific knowledge of a person’s fear of shaking hands IS assault. Because you know to a substantial certainty that this person will experience apprehension or fear from shaking hands with you.

iii. Almost all courts have said that you cannot commit assault with words alone. EXCEPT if I tell you “I’m going to shoot you with the gun I have in my coat,” and I reach into my coat. This is enough to produce reasonable apprehension. However, it is not the WORDS it is the PHYSICAL ACT in conjunction with the words.

3. Ways to commit assaulta. Acting with the to make offensive contact w/ pb. Acting with the substantial certainty that harmful contact

will occurc. Acting with the substantial certainty that offensive contact

will occurd. Acting with the desire that the p will become apprehensive

of harmful or offensive contacte. Acting with substantial certainty that p will become

apprehensive of harmful or offensive contact. iii. False Imprisonment

1. Intenta. The desire or knowledge to a substantial certainty that the

plaintiff will be confined by the defendants act. b. If a defendant is not aware of a plaintiff’s confinement

there is no imprisonment.i. I.e. if I lock up a building unaware that anyone is

inside, I lack the necessary intent to confine a plaintiff.

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ii. False imprisonment never makes necessary that a defendant know the plaintiff’s identity.

1. I.e. If I think that I am locking John in a building, but it’s really Sam. It is not a defense to say I intended to confine John and not Sam.

2. Confinement of the Plaintiffa. Overcoming the Plaintiff’s will to leave.

i. Must be overcome by what would overcome an ordinary person’s will to leave.

ii. This means you cannot confine a person who is unconscious or asleep, because this person has no will to leave.

iv. Intentional Infliction of Emotional Distress1. The Defendant’s desire or knowledge to a substantial certainty that

his/her actions will result in the plaintiff’s experiencing emotional distress.

a. The tort is one that only interferes with the person’s mental condition.

b. In connection with IIED, the conduct must be so outrageous it exceeds all bounds of conduct normally tolerated by society. The conduct must be EXTREMELY likely to produce mental suffering in the Plaintiff.

2. Severe or Serious Mental Sufferinga. Some jurisdictions require an actual physical symptom of

the distress. b. Affirmative Defenses

i. Self Defense1. Prevent a Tort2. By using reasonable force

a. The force that appears necessary to the reasonable person. b. Trick for reasonable person argument: Whenever you act

that act has advantages and disadvantages. If disadvantages outweigh the advantages, the behavior is unreasonable. I.E. Someone comes at me with a realistic looking fake gun, I hit them with a baseball bat. I reasonably believe that gun is real and hit you with a baseball bat. The advantage is that I reasonably believe that I am saving my life, the disadvantage is serious harm to the person with the fake gun. The Courts will always take the position that the most valuable thing to a person is their life, therefore deadly

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force is only reasonable when someone reasonably believes that their life is in danger. I.E. If you hit me with a bag of marshmallows, it would not be reasonable for me to shoot you.

ii. Defense of Others1. Prevent a tort2. By using reasonable force3. Primary theory: You can defend others if you reasonably perceive

the other person is threatened by tortuous conduct.4. Derivative Theory: You have the right to defend others only if the

person in danger also has the right to self defense. iii. Defense of Property

1. Prevent a torta. Recapture of Chattels

i. Wrongful dispossessionii. Prompt Action

iii. Reasonable Force2. By using reasonable force

c. Intentional Invasions of Propertyi. Trespass to Land – Essential Elements

1. Intent – knowledge or substantial certainty that his or her act would result in entry to the property

2. Entry on plaintiff’s realty/land a. Entry – going in or onto the realty – entry occurs when

anything tangible or real enters the realty. i.e. if I throw my trash over the fence into plaintiff’s yard, I have made an entry.

b. Realty is land and anything permanently attached to the land.

3. The entry must be unauthorized4. REMEMBER: NO DAMAGE IS REQUIRED IN A TRESPASS

TO LAND CASE. ii. Trespass to Chattel

1. Intenta. Desire or knowledge that the particular thing would be

affected by the defendant’s conduct2. Interference – doing something with the chattel that only the

rightful owner of the chattel has the right to do.3. Damage –

iii. Affirmative Defenses1. Necessity

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a. Public Necessityi. Requires an emergency threatening the general

public.ii. Public necessity does not require that the defendant

pay damages. b. Private Necessity

i. Emergency threatening only an individual life or property.

ii. In private necessity you still have to pay damages.c. Consent

i. Consent is an affirmative defense to ALL intentional torts.

ii. Defendant has the burden of proving consent.iii. If you induce consent by deception, it is not a

defense.1. I.e. if I tell you I need your car because I am

a police officer, but I’m not a cop, I have committed a trespass to chattel.

V. Negligencea. Definition – negligence is usually defined as the breach of the duty of reasonable

care. i. Duty of Reasonable Care - A Defendant is not liable to a Plaintiff unless

the Defendant owes the Plaintiff a duty of reasonable care. (Special knowledge or skills increases the Duty of Care)

ii. Factors When Determining Duty of Reasonable Care1. Foreseeable Risk – A risk is foreseeable if a reasonable person

would have anticipated the harm or outcome. 2. Foreseeable Plaintiff – whether it was foreseeable that the

anticipated injury would occur to that particular Plaintiff. a. Palsgraf Case – Cardozo uses forseeability, Judge Andrews

uses proximate cause. b. Cardozo says that when the Defendant was yanked onto the

train there were many foreseeable outcomes. However, there was nothing about the package that would’ve placed the ordinary person on notice of the danger of the Plaintiff. “No hazard was apparent to the eye of ordinary vigilance.”

c. “The risk reasonably to be perceived defines the duty to be obeyed.” Therefore, the railroad operator could not reasonably perceived the danger to the Plaintiff.

d. Carroll Towing – Duty of Care a function of three variablesi. Probability of event

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ii. Gravity of resulting injuryiii. Burden of adequate precautionsiv. Negligence = Risk/Utility

1. Negligence = Burden < (Probability x Loss)2. Not Negligence = Burden > (Probability x

Loss)e. Plaintiff always has the duty to mitigate damages. I.E. to

not increase the risk. (I negligently cut your finger which requires stitches, you fail to get stitches causing infection, hospital has to amputate your finger. I am not liable for the amputation b/c you failed to mitigate the damges.)

***Note*** Minors under the age of 7 are not capable of negligence.

3. Rescuersa. “Danger invites rescue” Cardozo – If a foreseeable plaintiff

is put into danger, it is reasonably foreseeable that someone will attempt to rescue that person. (Rescue Doctrine)

b. “The risk of rescue is born of the occasion.” Cardozo - If you have a duty to the person who is hurt, you have a duty to the rescuer.

c. Elements of Rescuei. Defendant must cause peril or the appearance of

such to a third party.ii. Peril must be imminent

iii. Reasonable person would recognize the peril or appearance of peril and the plaintiff must also have recognized it.

iv. The plaintiff must have exercised reasonable care in effecting the rescue.

4. Affirmative Conducta. The injury to the Plaintiff must result from the Defendant’s

affirmative conduct. b. Defendants do not owe a duty of reasonable care to

Plaintiffs who are in danger not created by the Defendants affirmative conduct.

i. I.E. If someone is choking on a piece of steak at a restaurant you do not owe them a duty of reasonable care to try and help them.

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ii. Once you start the act of attempting rescue, you may create a duty of reasonable care.

5. Exam Tips6. Special Relationship

a. A Defendant’s special relationship with a Plaintiff may create certain duties.

i. I.E. If an individual tells his/her psychiatrists that he/she intends to hurt or kill another person, the Psychiatrist may owe a duty of reasonable to care to the intended victim.

ii. Other relationships: ship captains to passengers, attorney/client, doctor/patient, etc.

7. Landholdersa. Some jurisdictions limit the duty of a landowner to

plaintiff’s injured on their land.i. Trespassers

1. Someone who enters the land without permission = the only duty a landowner owes to a trespasser is not to intentionally injure them, however, the landowner may use reasonable force to eject the trespasser.

ii. Licensees1. A landowner owes the licensee a duty to

warn the individual about known, hidden artificial conditions of the land which may pose a danger.

2. A landowner only owes a duty to warn about ARTIFICAL aspects of the land. I.E. mountains and lakes.

3. Social Guests are generally licensees. iii. Invitees

1. “Business Invitee” - Person who’s presence on the land confers or is likely to confer some benefit on the landowner = Invitee

2. “Public Invitee” - Someone who entered the land in response to an invitation to the general public.

3. The landholder owes invitees a general duty of reasonable care.

iii. Breach

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1. Definition of Breach – Duty of reasonable care is breached if the Defendant fails to do something that the reasonable person would’ve done.

2. The Court decides what duty is owed, the jury decides whether it was breached. In other words, duty is a question of law and breach is a question of fact.

3. Always look at it as what the reasonable person would do in the precise factual setting of the Defendant. (I.E. the reasonable 11 year old, the reasonable Doctor, the reasonable Lawyer, etc.)

4. When arguing about breach, you usually argue about whether the reasonable person would have done what the Defendant did.

5. Special Ways to Prove Negligencea. Violation of a Statute or Negligence “Per Se”

i. If a statute exists that protects a class of people to which the Plaintiff exists from the type of risks that occurred in that particular case.

ii. You must argue what the purpose of the statute was. iii. The fact that a statute is designed to prevent one

risk does not necessarily mean that it is not designed to prevent other types of risk.

iv. Most Courts say that violation of a statute is negligence “per se” unless the Defendant can prove there is a circumstance outside of the Defendant’s control.

6. Presumption – something the law accepts as true. a. Two Kinds

i. Irreuttable Presumption (Conclusive Presumption)1. Defendant cannot disprove negligence “per

se” with an excuse.ii. Rebuttable Presumption

1. Something the law accepts as true, unless the Defendant can show a valid excuse for violation of the statute.

VI. Res Ipsa Loquitor – The Thing Speaks for Itselfa. Proof of one thing from which another may be deduced or inferred.

“Circumstantial Evidence”b. Bodel – P got hit by a barrel that fell out of a window, P brings negligence suit. D

asks to dismiss the case. Judge declares that because barrels don’t roll out of windows by themselves, negligence must have existed. Since the only people around were the Defendant or one of his employees, one of them must have been

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negligent. The circumstantial evidence then “speaks for itself” and establishes a logical conclusion that the Defendant was negligent.

c. Basically, an accident that would not normally happen without negligence happens. The Plaintiff is not the cause, and the D has “exclusive control” over the event. Therefore, one may deduce that the accident was caused by the Defendant’s negligence.

VII. Negligence as a Torta. Duty of Reasonable Careb. Breach of that Dutyc. Proximate Cause – a combination of factual cause and legal cause

i. Was Defendant’s conduct a proximate cause of Plaintiff’s harm?ii. Cause in Fact

1. The “But For” Rulea. Defendant’s conduct is a factual cause of Plaintiff’s harm if

the harm would not have occurred without the Defendant’s behavior.

2. Substantial Factor Rule – If Defendant’s conduct is a substantial factor in causing the Plaintiff’s injury then the Defendant’s conduct is a cause in fact.

3. Alternate Liability Rule (Summers v. Tice) – Two people shot at the same Plaintiff. Only one Defendant actually hit the Plaintiff. Plaintiff could not prove by a preponderance of the evidence that either Defendant’s bullet was the one that hit him. The Court reasoned that when two Defendant’s engage in identical acts of negligence and one of them causes harm and it is impossible to tell which act caused the harm, then both of the Defendant’s are held liable.

a. Two or more defendants commit identical acts of negligence.

b. One of them causes harm to P.c. It could have been any of the Defendants.d. The Circumstances are such that it is impossible to

distinguish which act caused the harm.e. The burden of proof shifts to the Defendants to prove that

their negligent act was not the cause of the P’s injury. iii. Legal Cause

1. Foreseeability – if D’s conduct was a cause in fact it is a legal cause as long as the P’s injury was a foreseeable consequence of D’s conduct.

2. Probable – If D’s conduct was a cause in fact to P’s injury it was a legal cause of whatever harm is a probable result.

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3. Not Extraordinary In Retrospect – If D is actual cause it is a legal cause if the harm is not highly extraordinary result in retrospect

4. Start by assuming that if D’s conduct is a cause in fact then it is a legal cause and then look for reasons that it would not be a legal cause.

iv. Joint Tortfeasors1. Joint and Severally Liable – D’s are liable independently and

jointly liable if their actions are a cause of P’s injury2. Apportionment of Fault Rule – (some jurisdictions) each D pays

the percentage of the damage they caused to the P v. Recklessness or Aggravated Negligence

1. Essential Elementsa. Willful disregard of anb. Obvious Risk with ac. High Probability of Serious Harm

2. Example: If I live in a city apartment and fire a shotgun out of my window. Firing the gun creates the obvious risk that someone will get shot and hurt. I willfully disregarded this risk by firing the shotgun, and thus was reckless.

vi. Slip and Fall1. Employee or employer created, knew, or should’ve known of a

danger.2. Mode of operation: “Icee Machine” Hypo

a. Business creates a foreseeable dangerous condition or risk by the way the business operates.

d. Damagei. Describes the harm that has been sustained.

1. Injury to the human body2. Injury to property

a. P is entitled to reduction in value, cost of replacement or repair.

b. Lost profits CANNOT be recovered in negligence cases. 3. Mental suffering is not damage unless it results from a physical

injury. e. Damages

i. Nominal 1. Token sum that a P may receive if P has not suffered any damage

or injury. ii. Punitive Damages

1. Damages awarded to P for the purposes of punishing the Defendant.

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2. Can only be awarded when the D has done something to warrant punishment.

a. In intentional torts if the D acts with malice then the D might be liable for punitive damages

b. Malicious, fraudulent, or oppressive.c. Punitive damages are generally not awarded for pure

negligence cases.i. Recklessness might result in punitive damages.

3. Compensatory Damagesa. Designed to compensate the P for the damage he/she has

sustained.b. Collateral Sources Rule – The court does not consider any

funds received from people outside of the tortfeasor or people paying on behalf of the tortfeasor.

c. The Duty to Mitigate Damages – when a P sustains injury, the P is required to act to prevent any further injury, Tortfeasors do not have to pay for any further preventable injury that occurred because of the P’s failure to prevent further injury.

iii. Loss of Chance Doctrine1. “Loss of chance doctrine reflects an inescapable tension between

traditional demands of causation on the one hand and, on the other, a concern for plaintiffs who, by the very nature of the claim, will never have available to them anything but probabilities.”

2. Restatement 323a. One who undertakes, gratuitously or for consideration, to

render services to another which he should recognize as necessary for the protection of the other’s person or things is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if:

i. His failure to exercise such reasonable care increases the risk of such harm, or

ii. The harm is suffered because of the other’s reliance upon the undertaking.

b. Loss of chance sues only for the chance, and not the actual outcome.

VIII. Liability Without Fault or Strict Liabilitya. Liability imposed regardless of fault. b. Typical Cases where Strict Liability is Imposed

i. Injury to a P based on D’s Keeping of a Wild Animal

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1. Also “one-bite” rule with dogs. ii. Storage of Dangerous Substances

iii. Persons who engage in Ultra-Hazardous or Abnormally Dangerous Activities

1. Necessarily involve a grave risk of serious harm.a. I.e. Using dynamite.

2. Reasonable Care does not eliminate the risk. 3. Not a common activity.

iv. Products Liability1. Manufacturer or distributor of defective products

c. Defenses that Applyi. Contributory Negligence

1. Unreasonable Conduct by the P that contributed to the P’s harm.a. “All or Nothing” Approach

i. If P contributed to the accident, then P gets nothingb. Pure Comparative Negligence

i. P’s recovery is reduced in proportion to the P’s fault.

c. Modified Comparative Negligencei. P’s fault = to D’s fault, then P gets nothing

ii. Assumption of the Risk1. Primary Assumption of the Risk: Occurs when the P knows the

risk and voluntarily encounters it. = Complete Defense, P cannot recover.

a. Nature of the Activityb. Parties relationship to the activity

2. Only applies when the P ACTUALLY knows of the risk. Should have known is not enough.

3. Secondary Assumption of the Risk: Other jurisdictions employ assumption of the risk as a contributory negligence claim which reduces the P’s ability to recovery.

IX. Vicarious Liabilitya. The most common is respondeat superior

i. Employee and1. Must determine if the individual is an ACTUAL employee or an

independent contractor. 2. Most important: if the hirer had some ability to control the

individual’s behavior. ii. Scope of Employment

1. Individual’s actions must occur within the scope of employee2. Actions that are designed to benefit an employer.

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iii. Exam Tips1. If employee violates specific instructions given by the employer

does not mean the employee was acting outside of the scope of his/her employment.

iv. Master/Servant or Agency1. Was the act committed within time and space limits of the agency?2. Was the offense incidental to, or of the same general nature as, the

responsibilities the agent is authorized to perform?3. Was the agent motivated to any degree to benefit the principal by

committing the act?X. Products Liability

a. Strict Products Liability i. Product is defective and

ii. Caused an unreasonable riskb. Defect

i. Consumer Expectation – Product is defective if it fails to perform as the reasonable consumer would expect it to perform.

ii. Reasonable Safety – Balancing1. Disadvantages of its condition outweigh the advantages

c. Design Defecti. Defect exists because of the way the product was defined

ii. 3rd Restatement: Product is defective in design if the foreseeable risks resulting from its design could have been reduced by a reasonable alternative design.

iii. Some jurisdictions: the P has the burden of proof in showing a reasonable alternative design.

d. Manufacturing Defecti. Product fails to perform to its intended design

e. Failure to Warn Defecti. Product was not accompanied with an adequate warning

Important Restatement Sections

§ 431 What Constitutes legal cause:         The actor’s negligent conduct is a legal cause of harm to another if

·        His conduct is a substantial factor in bringing about the harm·        There is no rule of law relieving the actor from liability because of

the manner in which his negligence has resulted in the harm       § 433 Considerations important in determining substantial factor question

         number of other factors that contribute in producing the harm and extent of effect which they have in producing it

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         whether actor’s conduct has created a force in active and continuous operation up to the time of the harm or created a situation harmless unless acted upon by other forces (natural and continuous sequence)

         Lapse of time (remoteness in time)

Restatement § 479- A Π whose negligence puts him in danger- in a helpless situation- can recover from ∆ who subsequently, acting negligently, harms the Π—on 2 conditions

·        Π was helpless at the time the harm occurred and unable to avoid the harm AND

Restatement § 480- A Π who, by exercise of reasonable vigilance, could discover the danger created by the ∆’s negligence in time to avoid the harm to him, can recover if, but only if, ∆

·        Knows of Π’s situation, and·        Realizes or has reason to realize that Π is inattentive and therefore

unlikely to discover his peril in time to avoid the harm, and·        Thereafter is negligent in failing to utilize with reasonable care and

competence his existing opportunity to avoid the harm