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TORTS INTRO
TORTS INTRO
What is a tort?
● A civil wrong
● That causes a plaintiff harm
● For which courts will impose civil liability upon a defendant
● Allowing the plaintiff to recover damages for the injury suffered by the
defendant’s wrongful conduct
Why do we have a theory of torts?
To return an injured plaintiff to his/her pre-tort self and make whole again while
holding the party responsible for P’s injuries responsible for the conduct
3 underlying theories: Intentional, Negligence, Strict Liability
INTENTIONAL TORTS
GEN PFC:
- Intent
- Specific
- General
- Intending actual injury
- Volitional act
- Done on purpose
- defendant acted with their own will and was not coerced or forced into
committing the act.
- (muscular reaction)
- Causation
- BUT FOR D’s wrongful conduct - P would NOT have been harmed
- Damages
- Trespass to land = ONLY 1 W/OUT damages req
GOAL
● Allows P to recover damages for injury suffered by D’s wrongful conduct ● Purpose - to return person to pre-tort self & make whole again while holding party who caused P’s injuries (D) responsible for conduct
INTENT
● Person acts w/ intent to product consequence IF act: a. W/ purpose of producing that consequence or b. Knowing that consequence = substantially certain to result Transferred Intent: ● intent is satisfied if the actor intends to cause the relevant tortious consequence to a third party, rather than the plaintiff – the fact that the injury resulted to another than was intended does not relieve the defendant from responsibility ● Actor intends to intentionally hurt 2nd party BUT injury to 3RD party occurs - still liable for act IF : ○ Injury occurred in gen manner intended AGAINST PROP TRESPASS TO LAND
PFC
- Intent (to invade land of another);
- Volitional act (unauthorized physical entry onto land); &
- Causation ( BUT FOR D’s land entry - P would NOT have been harmed (i.e. right to posses interfered w?) PHYSICAL HARM/DAMAGES ≠ REQ ( physical harm not required – entry is the damage) ● Intentional & unauthorized entry onto REAL property of which another has: a. Rightful ownership of or b. Otherwise has exclusive possession & control of (e.g., tenant) ● DOES NOT req actual damages ● Includes some area below & above physical land RST § 158: Trespass to Land A person engages in trespass if he intentionally (a) enters land in possession of the other, or causes a thing or third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove Intangible trespasses: an intangible intrusion may give rise to a claim for trespass, but only if an aggrieved party is able to prove physical damage to the property caused by such intangible intrusion 🡪 most times, no trespass for intangible things (noise, nuisance, etc) Trespass by overflight : generally within ~500 ft of the ground = trespass
CASES
● Dougherty v. Stepp:
- Fraud;
- Duress;
- Barring access;
- Destruction;
- Fundamental altering;
- Using in some way that deprives owner of control;
- Using in unlawful way;
- Refusing to give something back; &
- Accepting control from someone else knowing it = stolen ● Mistake of fact ≠ def - you intended to exercise d&c over property REGARDLESS of who you thought it belonged to ● Strict liability tort - D need ONLY intend to exercise d&c (take possession of property) ● IRRELEVANT if actor:
- Knew who owned property &/or
- Had action plan to convert property or not ○ If results in serious interference = conversion ● Good faith ≠ def BUT can = aggravating or mitigating factor Factors to Determine Substantial Interference: ● The extent and duration of the defendant’s exercise of dominion or control ● The defendant’s intent to assert a right in fact inconsistent with the plaintiff’s right of control ● The defendant’s good faith ● The extent and duration of the resulting interference with the plaintiff’s right of control ● The harm done to the chattel; and ● The inconvenience and expense cause to the other
CASES
● Kremen v. Cohen: ○ P created a website. ○ A con man, Cohen, called the company through which the website was purchased & claimed ownership - went on to use it for his own thing & made a lot of money on it. ○ Rule: CA law ruled that interference w/ the rights associated w/ ownership of a domain name constitutes & actual claim for conversion ● Ebay ○ "spiders" dispatched by D interfered w/ Ebay's functionality by taking up bandwith – conversion ● Sotelov ○ invasive pop up ads interfered & caused damage in terms of wasted time, breaches of security, lost productivity, & burden on memory & display capabilities – conversion ● Microsoft ○ Russian operatives breached security & committed fraud & ID theft, tarnishing microsofts reputation & lost profits as a result – conversion ● Jetblue ○ Info was taken, but it did not interfere w/ the true owners use or damage in any way the value of the property - not conversion
● Poggi v. Scott ○ Poggi stored barrels of wine in Scotts basement, Scott sold one to a third party but that third party stole the rest. ○ Rule: Conversion occurs when one exercises d&c over the personal property of another while seriously interfering w/ the true owner's use. ■ Intent to cause harm is not req. ● Moore v Regents of University of CA ○ Moore had cancer & his doctors recommended surgery & tests. ○ They kept the tissues & used them for medical research resulting in patents & financial gain - as well as increasing the body of knowledge. ○ Rule: Conversion can only occur w/ interference w/ another persons property which seriously affects the true owners use of that property ■ Once cells leave the body they are no longer owner & thus can't constitute conversion. AGAINST PERSON ASSAULT
PFC
- Intent (to cause fear or apprehension of harmful or offensive conduct in P);
- Volitional act (D’s act DOES cause fear or apprehension in P);
- Causation; &
- Damages (nominal) ● Intent to cause another to reasonably anticipate or fear imminent battery (harmful or offensive contact) UNLESS something further occurs (e.g., self-def, retreat, intervention) ● Apprehension does ≠ fright ○ ONLY req person to think they are in imminent apprehension of harmful or offensive contact ■ EVEN IF ≠ fear
CASES
● I. de S & Wife v. W. de S ○ D came to the home of the pair & she put her head out the window to tell him to leave. ○ He swung axe at her & hit the door. ○ Rule: No physical harm is req to be liable for assault. ● Turberville v. Savage ○ Turbeville put his hand on a sword & said “if judges weren’t here I wouldn’t take your shit!” ○ Rule: Assault req intent to create apprehension of harmful or offensive bodily contact. ○ In other words it’s a mere empty threat w/ no affirmative action or intention. ● Allen v. Hannaford ○ P hired movers to get her stuff which was on lien to the lessor ○ The lessor held a gun to her head & threatened to shoot if she didn’t put the stuff back, pistol was unloaded unbeknownst to P ○ Rule: Actual ability to complete the battery is not req for assault, only the creation of apprehension or fear of imminent bodily harm is needed to support liability for assault. ○ *a public policy issue – we have a right to live in a society w/o being put in fear of physical harm. ■ Maintains order.
- Act directly or indirectly results in confinement
- Damages
- P =: a. Conscious of confinement or b. Harmed by it
DEFS
- Protection of person or prop
- Consent ( Herd )
- Apparent consent precludes liability IF actor reasonably believes P ACTUALLY consents to confinement
- Safe alternate exit ( Zavala )
CASES
● Colblyn v Kennedy’s ○ Dept store somewhat forcefully accuses & accosts & old man for stealing when he did not, & he has a heart attack. ○ Rule: False imprisonment does not occur on the premises of a merch if he: ■ a) reasonably suspects the other of larceny ■ b) detains the other in a reasonable manner & ■ c) for a reasonable amount of time as measured by the reasonable person standard. ○ Rule: Force or threat upon ones freedom is not a necessary component of false imprisonment ● Sindle v. NYC transit ○ Juveniles were fighting on the bus & it was getting dangerous so bus driver detoured to the police station. ○ One of the kids who was not a wrongdoer jumped out the window & got run over & sued. ○ Rule: detention which is reasonable under the circumstances & reasonable in time & manner, imposed for purposes of protecting another from inflicting injury to persons or property is not unlawful ■ Physical force & restraint can be used if it is in the benefit of child welfare IIED
PFC
- Intent (or recklessness) (to inflict emotional distress);
- Volitional act (extreme or outrageous behavior by D);
- Causation: &
- Damages
- SEVERE emotional distress to P ● Conduct =:
- Extreme &
- Outrageous ● Regular person hearing facts would say “outrageous!” ● Can be PARASITIC to other torts - may be pursued EVEN IF 1 DOES NOT sue for underlying tort ○ EX: underlying tort = trespass - P sues for IIED BUT NOT for trespass ● Person can = liable for IIED INDIRECTLY to 3rd party present during act
CASES
● Wilkinson v. Downton ○ Downton played a prank on plaintiff that her husband was smashed in an accident.
○ She went into shock & vomited & had long lasting negative consequences. ○ Rule: liability for IIED exists when the act is extreme or outrageous & intended to cause actual or constructive harm to a person & it actually does cause that harm ● State Rubbish v. Siliznoff ○ A biz decided to leave State rubbish & go to Siliznoff, State rubbish threatened to beat him up if he didn’t pay them various fees. ○ Rule: Assault holds when it is shown that one intentionally subjects another to mental suffering incident to serious threat to his physical well being, whether the threats are made under circumstances to constitute a technical assault ● Hustler ○ Court rules that press needs some first amendment breathing room ● Republic of Sudan ○ Usually the person must be present for liability but in cases of terrorism there is a caveat where compelling third party claims can be compensated. DEFS TO PROP NEVER MENTAL INSTABILITY ● MENTAL ILLNESS NEVER = DEF IN CIVIL - ONLY IN CRIM NECESSITY ● HAVE TO MENTION IF PRIVATE OR PUBLIC a. Private:
- Going onto someone’s land as means of necessary protection (think hurricane in-class essay) b. Public:
- Like being somewhere that usually = open to public, but at that certain time (of trespass) was not
- EX: going to park closed at night - IS COMPLETE DEFENSE - COMPLETELY BARS D FROM RECOVERY ● "Conditional" or "incomplete privilege" - refers to type of situation where trespass out of necessity CANNOT be punished BUT individual still = liable for damages resulting from trespass ( Lake Erie ) ○ ≠ COMPLETE DEFENSE - DOES NOT COMPLETELY BAR D FROM RECOVERY
CASES
● Mouse's case ○ Gen avg compensation ○ Admiralty law - in order to keep things fair, if cargo owners properties must be damaged in some way to prevent larger harm to cargo/ship/people the cargo owners will be compensated equally, regardless of who's cargo was damaged or let go ● Ploof v. Putnam ○ D owned an island. ○ Plaintiff was sailing along & a huge storm came & P docked on D's dock to save his boat & family. ○ A ward of the plaintiff untied the boat, resulting in it crashing ashore, damage to the boat, & injury to his family. ○ Rule: when uncontrollable circumstances pose a danger to human life, invasion of another's property to avoid this harm does not constitute trespass ● Vincent v. Lake Erie Transportation Co
EMERGENCY
● Consent = implied IF :
- Scenario = life threatening &
- Person ≠ capable of giving consent ● If person = capable of consenting - MUST be respected ○ EVEN IF = emergency
CASES
● Mohr v. Williams ○ D was a specialty ear surgeon, Mohr had serious ear problems. ○ She consented to surgery on the R ear but under anesthesia the L ear was way worse so surgery was performed on it instead. ○ Rule: Absence of malice or negligence does not operate as a good defense to assault & battery. ■ Any unlawful or unauthorized touching unless in pleasantry will constitute battery.
MINORS
● Minors & incompetents req guardian consent ○ UNLESS emergency
ILLEGAL CONDUCT
● Majority - CANNOT consent to illegal acts ● Minority - CAN consent
CASES
● Hudson v. Craft ○ D operated illegal boxing ring in which Hudson paid 5 dollars to fight & then was injured. ○ Rule: a promoter of an illegal event may be liable for torts suffered by participants even if those participants consented to participation ○ minority view: the willing suffer no injury; no action shall arise out of an improper or immoral cause
SPORTS
● SEE ASSUMPTION OF RISK §
● Gen rule - person consents by participating so (i.e. assumption of risk) athletic injuries in line w/ "rules of the game" ≠ liability ○ HOWEVER , if D DOES NOT play by rules = liable - ■ Consent here ≠ def bc P DID NOT consent to be involved in (& thus assume risk of harm to) any activity NOT permitted by rules ● Exceptions:
- Formal settings (organized contact sports):
- D CAN = liable for injury done w/in rules of game IF jury decides D acted: a. Willfully; b. Deliberately; or c. W/ reckless regard for safety
- D breaches duty of care ONLY IF they: a. INTENTIONALLY injure another participant or b. Engage in conduct TOTALLY OUTSIDE range of ordinary activities involved in sport
- Informal settings (playing w/ friends):
- COA req D’s conduct =: a. Reckless or b. Intentional
- Neg ≠ suffic
SELF DEF & DEF TO OTHERS ● Valid under mistaken belief (i.e. acted in self-defense under false assumption that you were being attacked/harmed) ● Can defend others (3rd parties) from harm ● Accidental harming of innocent bystander by force reasonably intended in self-defense to repel attack by 3rd party ≠ actionable ○ i.e. NO liability - valid defense
CASES
● Courvoisier v. Raymond ○ Store owner lives above his own shop which was being robbed. ○ He went to stop them & they stood their ground so he shot at them a few times. ○ Cops came & one approached him & he shot at the cop. ○ Rule: self-defense is a good defense to liability for intentional torts even if the D is mistaken but reasonable in his belief of imminent grave danger. **NEVER MENTAL INSTABILITY ● ***MENTAL ILLNESS NEVER = DEF IN CIVIL - ONLY IN CRIM*****
CASES
● McGuire v. Almy ○ McGuire cared for mentally ill & sometimes violent Almy. ○ Almy lashed out w/ a piece of furniture, injuring McGuire. ○ Rule: a legally insane person is liable for intentional damage causes to another person or property in the same way a sane person would be. ○ *this is about the choice/act of the D, not the mental state. ■ Doesn't matter if the D thinks its a person from outer space or insanity has untethered them from reality, if they intend to commit the intentional tort they are liable (not for criminal charges though). ■ Protects caregiver in these circumstances from unfair financial disadvantage ● Polmatier v. Russ
of whether they were negligent. This is based on the principle that those who profit from placing products into the stream of commerce should bear the responsibility for ensuring the safety of those products. ● ● The rationale behind strict liability is often to provide a remedy for individuals who suffer harm, even if the wrongdoer did not act with malice or negligence. This can encourage individuals and businesses to take extra precautions and ensure the safety of their activities or products. ● ● It's important to note that the application of strict liability varies across jurisdictions, and not all activities or situations fall under strict liability. Additionally, some jurisdictions may have specific statutes or laws that define the scope and conditions of strict liability in certain contexts.
NEG
PFC
- Duty
- Did person have duty to behave certain way that protects other people or property from injury?
- Breach
- Did person (by act or omission) fail to meet duty?
- Causation
- Damages
REASONABLE PERSON
● Conduct should be judged by obj stdrd - reasonable person of ordinary prudence under similar circumstances (“reasonably prudent man”) ● Person’s wealth DOES NOT impact level of care req to exercise
CASES
● Vaughn ○ guy w/ stack of hay near his house & was warned by neighbors that it could catch fire. ○ It did it burned neighbor’s property. ○ Rule: A person should be held to a reasonable person standard when determining negligence
SUPERIOR KNOWLEDGE RULE
● Pro in his pro trade = req to behave as reasonable member of the trade would act under the circumstances ( HIGHER STDRD )
CASES
● Dakter v. Cavallino
MINORS
● Minors = entitled to be judged by stdrd of care comparable w/ their:
- Age;
- Experience; &
- Wisdom ● Minor stdrd ONLY APPLIES WHEN engaged in activities appropriate for their:
- Age;
- Experience; &
- Wisdom
- Think motorcycle case ( Daniels )
CASES
● Daniels v Evans ○ kid on motorcycle crashed & died ○ Rule: he was engaged in an adult activity requiring particular skill & will be judged as such
INSANITY
● Adults usually held liable for mental illness IF sudden incapacitation = due to ONGOING mental illness ● Rationale:
- Where 2 innocent people = injured - causer would bear brunt of damages
- Probability that collateral object would not be attained some other way
- If more likely than not actor can gain the collateral object, by doing something else (safer alts) - prob ≠ reasonable to take risk acting in this way
CASES
● Eckert v Long Island ○ guy tries to save child from train tracks, does but is subsequently hit by train.
HAND FORMULA
● Liability due to failure to take safety precautions exists when burden of those precautions (B) = LESS THAN probability of injury (P) MULTIPLIED by cost of injury if did occur (L) ● B < P(L) CUSTOM ● Helps define reasonable person under spec circumstances (modified to custom of area/practice/trade) ● Actor’s compliance w/ custom of community or others in like circumstances = evid that actor’s conduct ≠ neg automatically ○ BUT DOES NOT preclude finding of neg (i.e. ≠ determinative) ● Actor’s departure from custom of community or of others in like circumstances in way that increases risk = evidence that actor’s conduct = neg ○ BUT DOES NOT req finding of neg
CASES
● Titus v Bradford ○ guy fell off the rail car bc of something precariously tied, but done so per custom. ○ Rule: reasonably safe means safe according to the habits, usages, & ordinary risks of the biz ● Lucy Webb v Perotti ○ guy in psych hospital dove out window. ○ Rule: failure to comply to internal standards may result in negligence – a P may rely on the D’s own set of standards of care in making a decision to engage, that is why we hold them to it (this is position of RST) MED MAL
PFC
- Evidence of gen recognized stdrds/practices/procedures that would be exercised by competent practitioners in D dr.’s field of med under same or similar circumstances;
- Evidence that D dr. departed from recognized & gen accepted stdrds/practices/procedures in manner alleged; &
- Evidence that D dr.’s departure from gen accepted stdrds/practices/procedures = proximate cause of P’s injuries/damages ● Health care pros must exercise same care other pros commonly exercise ● Stdrd = factual/objective - NOT reasonable ● Juries:
- CANNOT decide what = reasonable for specialist - determined by field’s stdrd &
- Usually likely to favor suffering pt P ● Exp test usually req to:
- Identify stdrds &
- Establish violations (departures) of those stdrds
CASES
● Lama v. Borras
○ unnecessary surgery outside standard of care. ○ Rule: Unnecessary surgery makes physician liable for any foreseeable risk. ● Murray v UNMC Physicians ○ withheld treatment for insurance reasons, but only bc starting & stopping would have been a detriment to P. ○ Rule: doctors must act w/in standard of care among physicians, & unfortunately must consider the effects of insurance & legality
COMMON KNOWLEDGE RULE
● Exception to modern rule req exp test ● Exp test ≠ req if court determines alleged neg = something avg person can easily understand ○ i.e. avg layperson can understand med issue at hand ● Arises when jury has “common knowledge” that harm would not have occurred W/OUT D’s neg ● Rarely applied in complex med issues - need exp test
CASES
● Morlina ○ doc rx’d cipro against the advice of the formulary. ○ Rule: common knowledge suggests that the formulary is a guidebook, not a standard of care & standard of care is developed through years of experience & pro publications
LOCALITY RULE
● Traditional "locality rule" - stdrd of care determined based on geo location of dr. ○ Protected gen practitioners in small rural areas ● Overruled - no longer applies ● Modern rule = national strd - requires physicians (both general practitioners or specialists) to exercise degree of care & skill of avg qualified practitioner NATION-WIDE
CASES
● Brune ○ mother was given too much anesthetic in a small town 50 miles from medical epicenter who used a smaller, customary amount. ○ Rule: doctors are held to a current standard in the profession no matter where they are located. ■ This isn’t the 1800s
INFORMED CONSENT
● Diminishes liability of physician - pt takes on risk ● Recovery from med mal based on lack of informed consent = limited to either: a. Non-emergency treatment/procedure/surgery or b. Diagnostic procedure involving invasion or disruption of integrity of pt’s body
CASES
● Canterbury v Spence ○ failed to inform of chance of serious side effect (paralysis). ○ Rule: a physician must disclose all the risks that a reasonable person might find significant in deciding whether to consent to treatment. ● Kozup ○ kid got HIV from life-saving transfusion, very rare, & w/out the transfusion he would have died. ○ Doc didn’t disclose this risk (1 in 3.5 million). ○ Rule: P must show that failure to disclose material risk would have resulted in a decision against the treatment ● Bly v Rhoads
○ watershed in determining whether a private remedy is implicit in a statute that doesn’t expressly provide one we must look at
- Is the p one of the protected class?
- Is there an indication of legislative intent to create or deny a remedy?
- Is it consistent w/ underlying legislative principles?
- Is the cause traditionally relegated to state law? JUDGE & JURY ● Prevention of BOTH (judge or jury) from taking control so don’t abuse unlimited power by deciding contrary to law or w/ bias/passion ● Limits jury discretion - unlimited jury discretion may undermine central principle of justice (all cases should be treated =) ● Q of due care should be left to jury BUT stdrd of conduct should be laid down by court (judge) ● “Jury hindsight bias” - when jury believes bc something DID occur - it = likely TO occur ○ Jury must look NOT at what precautions WOULD be taken now that we know BUT what precautions SHOULD HAVE been taken at the time
CASES
● Baltimore & Ohio RR v. Goodman ○ established “stop, look & listen” standard of care ● Pokora v Wabash ○ if ordinary standards fail, the jury should look at the facts for application. This limited Goodman. PROOF OF NEG ● P has exhausted possibilities of proof when he shows:
- What D did;
- How dangerous it was;
- D’s opportunity to recognize (be aware of) danger;
- Availability of safer alts; &
- D’s opportunity to know about safer alts RES IPSA LOQUITUR PFC ● Event/harm must:
- Kind that DOES NOT ordinarily occur in absence of someone’s neg (but for);
- Caused by agency or instrumentality w/in exclusive control of D; &
- i.e. D must have sole or primary control over object or process that causes resulting event/harm
- NOT have been due to ANY voluntary action/contribution on part of P ( NO CN ) ● “Thing speaks for itself” ● Jury should infer neg from very fact that situation occurred ● Invoked by P to establish D’s neg by circumstantial evidence ● D HAS BURDEN OF PROOF OF SHOWING WHY ≠ NEG ● Can reach jury: a. Through this doctrine ALONE or b. By adding exp witness test (doctrine + test)
CASES
● Colmenares
○ arm rail of an escalator stopped, causing them to fall & become injured. Unlikely that the rails would stop moving but for lack of proper care (negligence), no one else had control of the rails, & P’s actions did not contribute in any way. ● Holzhauer ○ opposite of Colmenares, where the whole escalator stopped. ○ Must show that the stoppage was due to negligence, not some third party (like someone pressing the stop button) ● Ybarra ○ Conspiracy of silence among doctors. ○ The doctrine of RIL is used when evidence is inaccessible to the injured P, this compels the D to provide the evidence, this compels the D (in this case doctors/nurses) to explain why their conduct was not negligent or why some other thing is responsible DEFS (P’S CONDUCT) CONTRIBUTORY NEG (CL) ● ONLY MINORITY APP (OLD CL DOCTRINE ABOLISHED IN MAJORITY OF JURIS) ● D bears burden of proof to show:
- P’s neg &
- P’s neg’s casual relationship to P’s harm/injury ● Must show failure to exercise reasonable care on P’s part caused harm ● At CL - COMPLETE bar to recovery ABSENT exceptions of D’s: a. Last clear chance to avoid harm or b. Willfulness in causing harm ● Strd of care req of person w/ disability = ≠ liable for contributory neg IF used level of care REASONABLE person under same or similar disability would under circumstances ○ Partially subj strd - considers individual’s actual physical disabilities in assigning liability for comparative neg
LAST CLEAR CHANCE (“LCC”)
● ONLY MINORITY - COMPARATIVE RIDS OF IT
● P’s 's response to D’s defense of contributory negligence (lessens harsh effects of CN) ○ If party has last clear chance to avoid accident & fails to do so - 1st party = held SOLELY liable ■ REGARDLESS of contributory negligence of another LCC Helpless P: ● Where P has to show reason he knowingly or voluntarily subjected himself to risk of harm due to D’s negligence is bc either a. P ≠ able to avoid it by reasonable care or b. D = negligent in failing to use existing opportunity to avoid harm when he knows or should have known chance of danger P was in had he used reasonable care LCC Inattentive P: ● Where although P could have discovered danger if he exercised reasonable care - can still recover IF D:
- Knew of P's potential for peril &
- Realized that P = inattentive &
- STILL DID NOT exercise reasonable care to use existing opportunity to avoid causing harm
CASES
● Gyerman
