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The Law of Torts Outline
Assault:
Definition: Special Rules:
Battery:
Definition: Special Rules:
False Imprisonment:
Definition: Intent: To directly or indirectly confine another Within boundaries defined by confiner Without privilege to do so.
Special Rules: It is unclear if a reckless act would meet Restatement criteria. Motives are immaterial (desire or hostility not required) Doctrine of Transferred Intent: applies but is normally limited to transfer from person to person and only limited to intent to falsely imprison. (exceptions exist). With transferred intent, knowledge regarding risk to transferee is irrelevant. With foreseeability, such mens rea is required.
P’s knowledge: In most jurisdictions and under the Restatements, the P must know of the confinement or be harmed by it. (Harm must be more than simply dignitary if no awareness.) However, Restatement does provide for post-confinement awareness recovery if P suffered great emotional distress, humiliation and “resulted in serious illness”.
Nature of Confinement: Must reasonably appear to P to be complete. Need not be in a single location. If area of confinement is extremely large, may not be imprisonment but rather exclusion. Confinement may be caused by duress other than physical force or threat of such force towards P. May be targeted at others. Words may be sufficient. Threat should be immediate, but this is not a strict standard.
Exceptions: Right of shopkeeper to detain: on reasonable suspicion of tortious theft, may use reasonable force to detain, for reasonable investigation. False arrest: (suspected criminal offenders)
Intentional Infliction of Emotional Distress:
Definition: Intentionally or Recklessly Causes severe emotional distress to another By extreme and outrageous behavior.
Special Rules: Physical injury is not required. (compare with negligent IED) Punitive damages may be recovered. Words alone are sufficient. Intent to cause harm not required. Recklessness sufficient. Fine line between mere insults and outrageous behavior. (Non-tort V. Tort). Depends on context. Racial slurs considered outrageous. Consider sensitivity of issue vs. Free Speech Violation. Insults by employees of utilities and common carriers are actionable. Negligent + standard for interference w/ disposal of human remains. Otherwise non-tortuous insults may be actionable when directed at especially susceptible groups such as children. Actual harm need not be intended.
Doctrine of Transferred Intent: does not apply! 3rd person must either have been intentionally targeted or distress was substantially likely to occur. Nature of Damage: Distress must be severe. Severe distress not necessary in cases against utility and common carrier employees. Presence at time of conduct may not be necessary if intent or knowledge, but a great time delay may be a block.
Defenses:
Trespass to Land:
Definition: Intent: Intent need not be to hurt or offend. Good will is not a defense. Act of entry must be voluntary. Need not be direct: Cause another to do so. Can also be refusing to leave once permission is withdrawn.
Damages: Nominal damages care be granted w/o harm (prevent prescriptive taking). Typically risk/ benefit analysis not considered when determining damages. Foreseeability: need not foresee damage caused, but risk of trespass must be!
Trespass to Chattel:
Definition: Intentionally Action on behalf of:
Intent: Purpose or knowledge re. use or intermeddling Reasonable mistake not a defense (as to possession), unless induced by owner. Reasonable mistake is permissible defense if belief is that it is necessary for self-defense or public necessity.
Damages:
Conversion:
Definition: Evaluating degree: Extent and duration of control Extent and duration of interference, incl. harm done, inconvenience and expense. Good faith.
Intent: Intent to exercise control over chattel. Need not wish to interfere w/ other. May reasonably believe chattel is her own and still cause conversion. Negligence is insufficient.
Stolen goods: Cannot take good title of stolen goods. Thus, taker commits conversion regardless of good faith. But if conveyor obtained goods by fraud or deceit, if purchased in good-faith then title is good. Conversion occurs when a negotiable instrument is paid on forged endorsement. (Receiver beware) Money or negotiable instrument paid to bearer is not subject to 3rd party conversion.
Bailment: The act of placing property in the custody and control of another, usually by agreement in which the holder (bailee) is responsible for the safekeeping and return of the property. Responsible for conversion only if refuses transfer when he knows or should know who possessor is.
Damages: Typically is market value of goods at conversion plus interest. If converted good is returned and accepted, then damages are dec. by value of returned good. Prompt return after good faith conversion, court may reduce damages or force acceptance of return.
Insanity:
Consent:
Self-Defense:
Defense of Others:
Defense of Land and Chattel:
Definition: Privilege to use reasonable force not intended to cause serious bodily harm. Prevent entry into one’s land a or taking of chattels, provided:
Special Issues: Despite intruders reasonable belief, defender has right to use force Can only use mechanical device if: If intruder has privilege to intrude, may not use force unless reasonably led to believe by intruder that he has no privilege. Necessity, civil rights, public need, private necessity (may need to pay damages for any harm to property)
Recapture of Land and Chattel:
Definition: Privilege to immediately repossess land or chattel by use of reasonable force If dispossession occurred w/o claim of right or through fraud, duress or B & E. Must be made fairly soon after dispossession Must request other give up possession unless reasonably believes such request is futile, dangerous or substantial harm will occur. Force may not risk death or serious injury.
Special Issues:
Discipline: Permitted to use reasonable force to maintain discipline if in position of authority.
Justification: Permitted to use reasonable force to maintain order, safety or the preservation of property.
Negligence:
Three requirements for prima faciae case: Standard of Care: Objective standard based on the reasonable person in like circumstances model. Special standard for those w/ special skills. Some facts assumed known or “duty to find out.” Children usually held to standard of like age, intelligence or experience. Minors engaged in adult activities (driving) are treated under adult standard. Mentally deficient adult held to standard of an adult for negligence. Lower standard for emergency Lower standard for physically handicapped, but must be aware of own limitations when engaging in activity.
“Calculus of Risk”: defendant’s burden to exercise care compared with loss incurred times probability of loss. (Learned Hand) Decided usually by jury though occasionally overruled by judge. (mixed ? of law and fact) Statutory Violations: Standard of care set by legislature May have built in civil cause of action. State courts usually read-in civil cause. Federal courts do not. Violation of statute usually is considered per se negligence, but P must be: (1) in class protected by legislation and (2) must be relevant to injury. 3 standards: Per se negligence w/ excuse (ignorance of the facts, not of law) – decision of law Presumption of negligence (rebuttable) – decision of fact Evidence of negligence (can only serve as evidence to convince jury)
Some absolute criminal liability violations have absolute civil liability as well. (Serving alcohol to minors)
Role of custom: Ordinary person can usually only testify to things they saw (except: “drunk” or “speeding”) Experts can testify to custom/ standard practice. Evidence of custom may not be conclusive. Physicians: currently national or same–or-similar community standard.
Informed Consent: Res Ipsa Loquitur: Instruction to jury that proof of a certain fact can be treated as proof of another fact. (Coca-Cola bottle exploding). Requirements: Does not compel jury to decide in Ps favor, but specifically allows such conclusion. Policy purpose is to force D to show true cause of injury.
Special Situations:
Negligent infliction of emotional distress: Liability of Possessors of Land: Common Law: Modern Law: One standard for all Reasonable person standard. Many states limit liability for all but malicious acts for owner’s of recreational property not charging entry fee. 3rd party liability at reasonable person standard. Implied warranty of habitability for lessors.
Failure to Aid – Affirmative duties
Joint Liability:
Can occur due to: Vicarious liability Concert of activity Concurrent activity
Injury would not have occurred but for activity of each D, or Action of each D is a substantial contributing cause of injury, even though it may have occurred as result of act of any one of the D’s. Summary Rule: joint liability appropriate when damages are indivisible.
Several liability: Contribution: Available only under joint liability. Occurs when one tortfeasor pays more then his fair share of the liability. May seek to recover from other tortfeasors. (Right of Contribution) Exceptions and special rules: Not available when person seeking contribution was guilty of intentional misconduct. Apportionment made based on relative degrees of fault or causation, or Liability apportioned equally. Many states do not allow contribution against tortfeasor who is immune to original claim. Settlements:
But if settlement equals full judgment, then further claim is barred except under contribution. Settlements under full value: Settler liable to co-tortfeasor for overpayment, or More recently, grant settler immunity, and grant co-tortfeasor credit for amount of settlement. (either for amount paid or amount of settlers liability).
Indemnity: When one tortfeasor has vicarious liability for another, he may be liable for full damages. Buyer versus seller for product liability Some courts allow indemnity b/w two tortfeasors if one is passively responsible and the other actively. (Current trend to abolish this for consideration). Some courts allow immunity for indemnitee once indemnitor has settled.
Actual Cause:
Most of the time, if an act is the “but for” cause, then it is the actual cause. (The act is both necessary AND sufficient to result in the injury). However, when there are two competing causes, either of which is sufficient to result in the injury but neither of which is necessary for it, the fact that the act was a “substantial” or “contributing” cause is enough to merit liability. See Kingston v. Chicago & Northwest Railway (one fire set by sparks from steam engine merges with another fire “of equal rank” that sprang from an unknown origin, and the combined conflagration destroys Π’s property. Δ is liable b/c the steam engine fire was a “substantial cause,” even if it was not necessary for the harm). Courts occasionally fall back on this “substantial cause” approach even apart from the necessary / sufficient problem above when the “but for” test would lead to unjust results
Series of Events & post hoc fallacy: Shifting the burden on causation: Where two defendants are have both committed identical acts, either of which might constitute the negligence element but it’s impossible to determine who is responsible, the burden of proof on actual cause is shifted to the Δs, and each must attempt to exonerate himself. Ybarra v. Spanguard for causation. Summers v. Tice (two Δs shoot at bird at same time; birdshot hits Π in the eye. Impossible for Π to determine which was the cause but unfair to let both off, so burden shifted instead).
This differs from the fire case above. There, either cause was sufficient but neither was necessary. Here, one act alone is necessary, but it’s impossible for Π to prove whose act it was. Problems with this idea quickly arise when the number of defendants increases. How low a probability are we willing to deal with? Compare Hall v. DuPont (shift allowed where Π can determine which of 6 blasting cap manufacturers made the cap that injured her) With Burton v. Waller (shift disallowed where Π sued 7 highway patrolmen for injuries resulting from shootout in which at least 31 policemen were firing weapons).
Sometimes the burden of persuasion on causation is shifted to a single Δ due to violation of a safety statute. [Causation presumed and Δ must rebut!]
Loss of chance as causation? Not clear whether a reduction in chance of health can be causation. A slight majority of American states allow recovery. Two approaches: If loss of chance allowed and jury finds it to be the cause, what damages? Two approaches: Treat the injury as pled and allow full recovery. Christie says: Where the Π had chance of recovery above 50% and Δ reduced it to below 50%, it seems fair to call Δ’s acts a substantial cause of Π’s injury and allow full recovery. Treat the injury as a loss of chance and allow partial recovery. If Π had a 40% chance of survival and Δ reduced it to 20%, give Π 20% of what he would get normally.
Proximate Cause:
Early history “Foreseeable Plaintiff”
The first rule was “direct cause,” and foreseeability was irrelevant. This obviously made no sense, and courts were dying to find a way to get foreseeability into the analysis to prevent such injustice. Hence, they turned to the only place in the law you could find it then—the duty question! See Palsgraf v. Long Island Railroad (Δ railroad negligently pulled a passenger onto a moving train; he dropped a box carrying fireworks, which exploded and caused a shock wave that knocked luggage scales into Π. Δ not liable b/c Π was not a reasonably foreseeable victim within the “area of apparent hazard,” and Δ thus owed no duty to her.)
Foreseeability / “scope of the risk” rule
Today, foreseeability is part of the causal analysis as well as the duty analysis. Now you are only liable for injuries that result from forces you improperly risked. However, once you take the improper risk, the fact that you didn’t foresee the extent of the damages is irrelevant [eggshell skull Π]. Somewhere the causal link always gets too tenuous, and it’s no longer fair to hold Δ liable. Imagine that “the Reasonable Person” is standing next to Δ when Δ does the stupid act. Reasonable Person would say, “You better not do that; X might happen.” What could X be? If the Reasonable Person wouldn’t fear it, then no proximate cause. (E&E) Always ask: What did Δ improperly risk?
The damages must be of the same kind that Δ improperly risked. [Remember, extent of damage is irrelevant. Eggshell skull]: Compare Wagon Mound I (although it was reasonably foreseeable that oil spill in Sydney harbor would foul slips on a dock, it was NOT reasonably foreseeable that the oil would somehow catch on fire and burn the dock down. Recovery for the burning dock therefore denied) with Wagon Mound II (facts of same accident, but this time suit was for nuisance and trial judge found that it Δs foresaw the risk of a fire burning up the ships in the harbor, but considered it such a low possibility that they could disregard it. But that means it was reasonably foreseeable, so liability should attach!) Compare Kinsman Transit I (Δ shipowner liable for flooding downtown Buffalo b/c he improperly risked the breaking loose of his ship. Ship was moored sideways during semi-flood with ice jams floating downriver; ice jams broke ship loose; ship ran into another ship and broke it loose; two ships combined ran into bridge and collapsed it; two ships combined with rubble of collapsed bridge to flood downtown Buffalo! Even given the strange facts, damming and flooding were still foreseeable b/c a 500 foot ship can easily dam a 200 foot wide river) with Kinsman Transit II (given same facts as above, Δ not liable for interference with contract after grain elevator could not operate until cleanup finished and river traffic resumed. Δ never risked interfering with contracts, and this reaches the point where the causal link is too tenuous to fairly impose liability.)
The problem of “foreseeable injuries but unforeseeable manner.” [Key is defining “what did Δ improperly risk?”] Compare Hughes v. Lord Advocate (where Δs left a kerosene lantern outside to mark an open manhole, Δs liable when Π child gets burned in bizarre manner by dropping the lantern into the manhole and causing a freak explosion. The Δ risked a burn injury and is liable for it, even though precise manner of injury was bizarre). With Doughty v. Turner Manufacturing (Δs not liable for chemical burn after negligently knocking a ceramic lid into a vat of molten cyanide, which exploded five minutes later and burned Π. The Δs risked injury by splashing, NOT by explosion.)
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