Intentional Torts1. Batterya. Elements: 1) Intent to touch, 2) touch is offensive/harmful, 3) no consent, 4) touch*b. Policy: dont do it activity levels 2. Trespassa. Elements: Intentionally 1) enters land or causes another thing to enter or 2) remains on the land or 3) fails to remove from land a thing which is his duty to remove i. deluded by concepts of privilege (journalists don't have privilege) and implied consent b. Policy: balance property interests v. public interests (investigative journalism) 3. Conversiona. Elements: Intentionally 1) dispossesses other of chattel or 2) using or intermeddling with a chattel in the possession of another b. Liability to the person: 1) dispossess of the other or 2) property is impaired as to its condition, quality or value or 3) possessor is deprived of use of property for substantial time or 4) bodily harm is caused to the possessor, or harm is caused to some other person or thing the possessor has an interest in. 4. False Imprisonmenta. Elements: 1) intends to confine 2) act directly or indirectly results in confinements 3) other is conscious of confinement or harmed by it i. when not done with the intention, not responsible for transitory or harmless confinementii. confinement is 1) fixed boundaries, 2) lack of knowledge of way to escape iii. confinement is actual or apparent physical barriers (cripple w/o crutches)iv. shoplifter exception wrong? 5. Defense of Person and Propertya. Proportionality of force > notice (Katko v. Briney)i. reasonable and no alternatives of less force 6. Private Necessitya. Emergenciesi. reasonably make use of peoples stuff (if public place) but must payii. Policy: WWSOD, making people pay doesnt disincentivize potentially public goods (e.g., dock)7. Public Necessitya. 1) public necessity must exist 2) if you have choice on what to destroy, you have to pay for it (if not choice, you may not have to pay but there is a court split)

Rule of Negligence1. Negligence Standarda. What would a Reasonable Person do? b. Hand Formula: bStuff3. Decision costs and error costs

Trying to achieve the smallest costs of accidents to society optimal accident rate (not zero) generally theres an inverse relationship between decision and error costs SL generally is that inverse relationship (create some errors in exchange for lower decision costs) Res Ipsa Loquitur pockets of immunity eg haft, herkovitz (error costs of systematic over and under deterrence) comparative negligence (inverse of decision/error costs) market share liability (decreasing both error costs - no more pocket of immunity -- but also decreasing admin costs b/c not finding out who made the product, but also leads to judicial economy because youre covering cost of people coming forward later with same harm)

Decisions costs Error costs

1. trying to achieve the smallest cost of accidents to society How likely you are going to get the right outcome

Judges time and money (judicial system) Litigation time and money Judges having one person, not an expert, evaluate is that really a good idea? ESP for products liability

Juries even more skeptical of high error costs because theyre just random people off the street.

Rule of Negligence

If information is perfect, you get same amount of deterrence under both regimes Negligence SL reduce activity level when due care is insufficient to significantly reduce accidents.

1. makes it harder to bring case (expenses/time - relates to pt. 3)2. leads to more cases generally

2. may lead to less cases overall 2. but more frivolous suits (-)

3. distributional problem (less poor people bringing cases than rich people)3. individual suits are cheaper (+) leads to more settlements

Decision costs increase takes more time/money to determine whether someone is negligent or not. Court costs + litigation costs (for both parties)4. person doing the act is better to assess the risk than the court (+)

Error costs decrease - but maybe not: juries are stupid! 5. takes two to tort issue

6. risk of overdeterrence (-) affects newer technologies that want to enter market

7. risk of unknown harms (-)

Decision costs decrease (?)- less admin costs/case, but # cases increases

Error costs increase

Comparative vs. Contributory NegligencePros of Comparative negligence:1. More fair outcome (e.g., drunk driver runs over jay-walker or mindless pedestrian)2. relieves avenues for serious tort offenders to get off scott-free (partial pocket of immunity)Cons of Comparative Negligence:1. More costly decision costs increase 2. More capricious (juries all over the place in terms of assigning percentages)3. Distributional aspect (rich people can afford better lawyers)

Ideas for Tort System Reform1. Products Liability a. Removing the tort system for alternative designsi. alternative schemes that can handle these pressures b. Different rules for manufacturers of new tech. c. Introducing comparative fault for Ds to get NL? (Daly vs. Melia arguments)2. Gore a. Cap on Punitive Damages = Dumb3. Public Necessitya. Admiralty rule should apply everywhere 4. Finding Rescuers Liable for their Negligent Treatmenta. Pocket of immunity problem5. Katko a. Spring Gun b. We have the criminal system, punitive damages6. Pre-Impact Fright a. Benyon case turns on evidence (skid marks) so in cases where theres no evidence then injured/dead person doesnt recover? Seems arbitrary! 7. Coming to the Nuisance Defense a. Cost of existing nuisances already baked into cost of land? Double recovery? 8. Market share Liabilitya. fungibility might incentivize drug companies to tweak drugs slightly to argue non-fungibility (where in fact it really is escape liability)b. using exculpatory evidence (Sindell allowed) this would defeat the purpose of MSL (which is for companies to internalize their proportion of the costs of harm) c. why dont we expand this to other markets? Guns? Paint? d. Disincentivize companies to take cost effective precautions? Only targets major companies, not all companies [pocket of immunity for small companies] seems to be somewhat arbitrary (but maybe not Blums law!) 9. Shoplifter exception in False Imprisonment?a. Why not just make it a SL regime if the person is NOT a shoplifter? This would allow shopkeepers to use imprisonment, but only if they are certain. Less arbitrary/mistake accidents.

I. Generala. Purposes of the Tort Systemi. Deterrence1. Private enforcement not central control2. Higher error and decision costs for central controlii. Compensation1. Restore status quo (corrective justice)iii. Loss Spreading1. Assign liability to party most able to pay (deep pockets)2. Raise social insurance costsb. Key Considerations i. Unlimited liability for intentional torts (reduce activity level!!)1. Vosburg v. Putney2. White v. University of Idahoii. Background risks may reduce liability1. Knight v. Jewett 2. Gambill v. Stroud iii. Information Forcing Rules 1. Grabowski v. Quigley (battery, ghost surgery, L)2. Brzoska v. Olson (battery, no-HIV preference, doctrol, NL)3. Marghartia (Neg, pain for sailors lost leg, NL)4. Byrne (barrel falling case, info. asymmetry, L)5. Ybarra v. Spangard (RIL, multiple docs and nurses unknown who was negligent, L) 6. Madsen (SL, dynamite + mother mink idiosyncracy, NL)7. Konradi (VL, post office trucks, L)8. Fox farm case (nuisance case, shooting to annoy fox farm, L b/c no social utility in shooting for spite) iv. Negligence and Hand Formula negligence standard establishes number of socially optimal accidents, impose L to deter individuals from falling below that standard 1. Carrol Towing (negligently tied boat, broke free precautions taken ex ante + this activity led to injury = negligence) v. Assign liability rules to minimize transaction costs 1. Desnick v. ABC (trespass, undercover expose, default rule)2. Ploof v. Putnam (private necessity, ship + dock, identify trading partners)3. Rodi Yachts v. National Marine (custom, bargaining towards due car, NL)vi. Ex ante bargains/WWOSD1. Restaurant critic (trespass, hidden identity, NL)2. Vincent v. Lake Erie (private necessity, ship+dock, NL)3. Kershaw v. Mcknown (relative value of goat and dog, single owner, NL)vii. Reciprocal Risk 1. Surocco v. Geary (public necessity, fire, NL)viii. Identifying plaintiffs and allocating harm1. Lawson v. Management Associates (NIED, plane into dealership, NL) ix. Recurring miss cases 1. Lubin v. Iowa City (custom, water pipes + city, SL)2. Gardner v. National Bulk Carriers (fall overboard ship + doesnt look, incentivize ship capt to look, L)3. Haft v. Lone Palm Hotel (no sign, never pass POE standard, sign is not costly, L)4. Herkowitz (loss of chance, not able to prove beyond POE, dont want doctors to be neg, L)5. BMW v. Gore (punitive damages case, prob. of detection quite low, NL maybe should be L). 6. Siegler v. Kuhlman (gasoline truck on highway, SL evidence is destroyed in fire)7. Photoshop losing a roll of film (if NL, then no incentives for shop to take care) 8. Moskovitz v. Mt. Sinai (doctor fake med. records to cover up mistake, fear of POI, L)x. Rylands SL list (SL reduce activity levels WHEN DUE CARE IS INSUFFICIENT TO ELIMINATE ACCIDENTS!! 1. Water in underground mines (Rylands)2. Wandering cattle (neighboring cattle ranchers either SL or NL)3. Poisonous plants (Crowhurst)4. Wild animals (ferae naturae) that escape (Behrens)5. Transporting gasoline by truck (Siegler)