Torts Outline:
Intentional Torts (Transferable):
Intent is a desire or knowledge of substantial certainty that a result will occur
1. Assault
Elements:
1. Intent to make a person perceive imminent touch
2. Success
3. Lack of consent - voluntary
2. Battery
Elements:
1. Intent to touch an individual
2. Success
3. Lack of consent
3. Trespassing to land
Elements:
1. Intent to breach close (property which can be enclosed)
2. Success
3. Lack of consent
4. Trespass to DBA (chattels)
Elements:
1. Intent to interfere with ownership rights
2. Success
5. Conversion
Elements:
1. Intent to interfere with ownership rights
2. Success
3. Fair to make defendant pay full value
Defenses to Intentional Harms:
a. Consent
i. Form, verbal, implied in fact (conduct)
ii. Emergency situations
b. Insanity
i. intent is crucial
ii. Intent a normal person would not have entertained
c. Privilege
i. Self-defense
1. Use a reasonable force under the circumstances
ii. Defense of property
1. Property is less valuable than human life
2. Can meet force with force (break open gate = thrown out, not asked)
iii. Recapture of chattels
1. Requires: 1. Ownership 2. Taking or conversion without right
d. Necessity
i. Private
1. Ordinary prudence and due care
2. Compensation for damage to property
ii. Public – no compensation unless prediction is false
Strict Liability – you’re liable for the harm you caused
Direct Cause - your act caused harm
Indirect Cause - created a danger/peril, which leads to harm
Cost benefit analysis of due care:
If B<PL = unreasonable; if B>PL=reasonable
B=Burden of care; P= probability of injury; L= cost of injury
Negligence – lack of due care
Elements:
1. Duty – the plaintiff must show a duty to act non-negligently
Duty to use reasonable care
i. To protect others
ii. To avoid hurting others
iii. Statutory
iv. Detrimental Reliance - reliance on a promise led to harm
2. Breach – breach of a duty, fall below the standard of care
Reasonable person under similar circumstances
I. Custom
II. Breach of statute
a. Negligence per se
b. Evidence of negligence
c. Prima Facie evidence
i. Gets past motion of dismiss
ii. Shifts burden to the defendant to prove he is not negligent
3. Cause – was the breach of duty connected to the harm
a. Cause in fact - means substantial factor
i. Was the breach of duty a substantial factor in causing the harm? (did they create
a risk?)
ii. This means in most cases (above) is true if "but for" the breach the harm would
not have happened. (if you didn’t screw up the harm wouldn’t have happened.)
iii. 3 Questions to consider regarding Cause-in-fact:
1. What do we mean when we say A caused B?
2. How do you prove it?
3. Should it matter whether A caused B?
b. Proximate cause
i. Direct consequences
1. Covers direct consequences
2. Indirect consequences in the creation of risk
ii. Foreseeability
1. Extent (of peril, of damage)
4. Harm – did the plaintiff suffer harm
a. proof of actual physical damage to person or property
Standard of Care:
1. Reasonable Person
Was the person doing a wrong? If not then not liable.
Personal characteristics Objective characteristics
Judgment Does not matter Law does consider
Knowledge Does not matter Law does consider
Child/Age Law does consider Does not matter
Cars etc. Does not matter Law does consider
Insanity Does not matter Law does consider
Blindness Law does consider Does not matter
2. Calculus of Risk
3. Custom
a. Often rises out of a consensual relationship (employee-employer, dr.-patient)
b. May influence, but does not have conclusive weight.
To keep questions away from the jury:
a. Before a decision:
1. Directed Verdict
2. Dismiss
b. After a verdict:
3. Judgment not withstanding the jury verdict (JNDV)
4. Statutes and Regulations
a. Jury instructions:
Consider breach of a statute as evidence that the person acted unreasonably.
b. Two ways to use a breach of statute
i. Negligence per se (the court decided the effect was)
ii. Evidence of negligence
5. Problems of Proof of Negligence
a. Res Ispa Loquitur – prima facie case when the plaintiff does not know who wronged them
b. Elements of Res Ispa Loquitor:
i. Ordinariness - ordinarily when this happens is it because someone screwed up?
ii. Nexus - if someone screwed up was it the defendant?
Affirmative defenses to negligence:
Contributory - reduces proportionately
Assumption of risk - reduces proportionately
4 states, plus DC use common law rule that defenses are 100%
Ch 7 Affirmative Duties
1. Duty to Rescue
There is no duty to rescue
2. Duties of Owners and Occupiers
a. Attractive nuisance – applies to kids
b.
3. Gratuitous Undertakings
a. Duty to exercise reasonable care
4. Special Relationships
Ch 10 Damages
1. Wrongul death and Loss of Consortium
a. Wrongul Death
i. History
ii. Measure of Damages
b. Survival of Personal Injury Actions
c. Actions for Loss of Consortium
Different Types of Damage awards
1. Nominal - no actual harm done
2. Compensatory/Actual - to pay for harm done
3. Punitive - when the person was very bad, to punish
Market Share:
2. In the time period when it was purchased
3. In the area where it was purchased
4. For the use as used by the plaintiff.
Joint and Several: each is liable for the whole amount
Most states have adopted Comparative Fault/Negligence: we look at market share of wrongdoing
(including the plaintiff)
