Rozan - Torts - Spring 2014

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  1. Three topics that tort courts consider?
    • 1) policy issues
    • 2) procedural posture
    • 3) consequences of ruling
  2. Goals of the tort system:
    • compensate the P for harm - “make the P whole”
    • sensibly allocating the burdens of harm
    • “optimal” deterrence of D’s conduct
    • punish
    • system of redress, so don’t take things into own hands
    • communicate social values
    • protect D’s… only punish when truly culpable
    • certainty
    • way to allocate losses
  3. A tort is:
    • a lawsuit
    • seeking compensation
    • for a breach of duty
    • imposed by law
  4. We studied four (4) ways that a D can be liable to a P:
    • intentional torts
    • negligence
    • strict liability
    • vicarious liability
  5. "Intent" means the D:
    • had the purpose to bring about the tortuous result, OR
    • knew with substantial certainty that the result would occur
  6. There are three things common to "intent":
    • it can be inferred
    • it is subjective
    • kids or the mentally deficient CAN have intent
  7. "Transferred intent" means that:
    • a D's intent to commit any trespass tort can satisfy the element of intent for any other trespass tort, OR
    • intent transfers victim-to-victim
  8. "Reckless" means:
    a disregard of a high degree of risk that the result will occur
  9. The "normative argument" is:
    what the law should be
  10. "Strict liability" means:
    • "you break it, you buy it"
    • P can prevail without show the D was at fault
    • P does NOT need to show breach of duty, but...
    • P must still show 1) act, 2) cause in fact, 3) proximate cause, and 4) injury
  11. "Fault-based liability" means:
    • the court will consider why the D injured the P
    • will only be liable if acted intentionally or negligently
  12. There are five (5) things common to all intentional torts:
    • intent
    • legal cause
    • volitional act
    • P has burden of proof
    • NO INJURY required
  13. The seven (7) intentional torts we covered were:
    • battery
    • assault
    • intentional infliction of emotional distress
    • false imprisonment
    • trespass to chattels
    • conversion
    • trespass to property
  14. Transferred intent only transfers between:
    • the trespass torts:
    • assault, battery, false imprisonment, trespass to chattels, and trespass to property
    • (and courts hesitate to transfer intent between people and property)
  15. To prove that a D is liable for battery, the P must show there were four (4) elements:
    • an act
    • with intent
    • that does cause
    • to cause harmful or offensive contact
  16. Three (3) special considerations for battery are:
    • the act cannot be generalized (like 2nd hand smoke)
    • the contact must be offensive to the P (subject) and to  reasonable person (objective)
    • the contact does not need to be directly to the body (like Fisher's plate)
  17. To prove that a D is liable for assault, the P must show there were four (4) elements:
    • - act
    • - with intent to cause a h/o contact or apprehension of a h/o contact
    • - that DOES cause
    • - apprehension of an IMMINENT h/o contact
  18. Four (4) special considerations for assault are:
    • words alone are not enough
    • the apprehension must be reasonable or the D must know the P has an unreasonable fear and use it
    • there must be an opportunity for the D to carry out the threat immediately or the P must think so
    • there cannot be a reasonable means of avoidance
  19. To prove that a D is liable for false imprisonment, the P must show six (6) elements:
    • act with
    • intent to cause confinement
    • within boundaries fixed by the actor
    • that does cause
    • confinement
    • P is conscious of or is harmed by the confinement
  20. Three (3) special considerations for false imprisonment are:
    • there must be no reasonable means of escape
    • boundaries must be in all directions
    • harm could be psychological, physical, or economic
  21. To prove that a D is liable for intentional infliction of emotional distress, the P must show five (5) elements:
    • act
    • that was reckless OR was intended to cause severe emotional distress
    • that did cause
    • severe emotional distress
    • the act was extreme and outrageous
  22. Five (5) special considerations for IIED are:
    • transferred intent is NOT allowed
    • physical manifestation of s.e.d. helps
    • F-T said may balance s.e.d. with e/o, BUT Calder says e/o must be such that "no reasonable man can endure" and no balancing
    • court may consider s.e.d. of 3rd party if present and immediate family
    • some courts may allow transferred intent for IIED between family members
  23. To prove that a D is liable for trespass to chattels, the P must show four (4) elements:
    • act
    • intent to interfere with property
    • that does cause
    • temporary dispossession OR impaired condition OR deprived use for a substantial time
  24. To prove that a D is liable for conversion, the P must show four (4) elements:
    • act
    • with intent to exercise control
    • that does cause
    • permanent deprivation
  25. To prove that a D is liable for trespass to property, the P must show four (4) elements:
    • act
    • with intent of physical invasion OR remaining w/o permission OR failing to remove some item
    • that does cause
    • physical invasion OR remaining w/o permission OR failing to remove some item
  26. Three (3) special considerations for trespass to property are:
    • mistake does not matter
    • some courts may consider particulate matter but there must be HARM
    • light is still only a nuisance
  27. The five (5) defenses to intentional torts we covered were:
    • consent
    • self defense (for self and 3rd party)
    • defense of property (lesser and greater force)
    • necessity (private and public)
    • shopkeepers privilege
  28. There is one (1) thing common to the "defenses to the intentional torts":
    D has the burden of proof
  29. There are five (5) elements to "consent" to an intentional tort:
    • manifestation (explicit or implicit)
    • scope
    • circumstances (voluntary?)
    • withdrawn?
    • mental capacity
  30. Three (3) special considerations for consent to intentional torts are:
    • doctors may not need if impractical
    • can't give consent for illegal activity
    • might be policy reasons to allow consent for illegal activity
  31. There are four (4) elements to "self defense" to an intentional tort:
    • can use reasonable force
    • not intended or likely to cause death
    • if they have reasonable belief
    • of imminent h/o contact
  32. Four (4) special considerations for self-defense to intentional torts are:
    • court will consider size, reputation
    • court will consider who was initial agressor
    • there is always a duty to retreat for deadly force (unless in home) and sometimes for excessive force
    • force used must be PROPORTIONAL
  33. There are three (3) elements to "self defense of a 3rd party" to an intentional tort:
    • my use reasonable force (what use to defend self)
    • if reasonable belief (well-founded apprehension of imminent h/o to 3rd party)
    • some courts say mistaken belief invalidates (if 3rd party could not do this, than neither could you)
  34. There are three (3) elements to "defense of property" to an intentional tort:
    • reasonable force (proportional, not deadly or likely to cause serious harm)
    • reasonable belief
    • necessary to prevent intrusion
  35. Two (2) special considerations for defense of property are:
    • limited duration (while threatened or fresh pursuit)
    • only if intrusion was not privileged (or D intentionally/negligently makes you think it wasn't)
  36. There are four (4) elements to "defense of private necessity" to an intentional tort:
    • must be deliberate act
    • had reasonable belief
    • interference was reasonable and necessary
    • to avoid serious harm
  37. Two (2) special considerations "defense of private necessity" to an intentional tort:
    • qualified privilege!
    • did D create the risk?
  38. Shopkeeper's privilege as defense to an intentional tort says may detain suspected shoplifter if have three (3) elements:
    • reasonable manner
    • reasonable amount of time
    • reasonable suspicions
  39. Negligence liability:
    allows court to find D liable for injuries to P even when D did not intend to hurt P
  40. ELEMENTS of negligence:
    1) duty,  2) breach, 3) cause in fact, 4) proximate cause, 5) injury/damages
  41. duty, General std:
    all persons have a duty to act as reas. prudent person would under the same/similar circumstances to minimize the risk of injuries to others
  42. Six considerations for GENERAL duty standard under negligence
    • knowledge/skills
    • phys. char/disabilities
    • not mental disabilities
    • minors (maybe special duty standard)
    • emergency circumstances
    • mental ILLNESS
  43. negligence duty rules for minors
    • reas care + age/exper/intell
    • if adult activity, adult standard
    • rule of 7 (minority)
  44. negligence duty rules for mental illness
    • normal insanity = gen. std, BUT
    • Breunig exception, AND
    • Gould exception to Breunig exception
  45. Negl: four (4) ways to find duty:
    • general standard
    • Hand Test
    • Limited duty
    • Rescue Doctrine
  46. Hand test for negligence "duty"
    Is there a cost justified precaution (B<PL) Carroll Towing?
  47. No duty rule:
    in general, no liability for failure to act
  48. Limited duty rules (3 of them)
    • exceptions to the "no duty to act rule"
    • 1 - misfeasance when D imperiled P
    • 2 - voluntarily assumed duty
    • 3 - special relationships
  49. Rules for voluntarily assumed duty (four of them)
    • 1 - if assume, must carry through
    • 2 - once start, must be reasonable
    • 3 - if discontinue, must do reasonably
    • 4 - if govt, must have special relationship to P
  50. breach of duty, general definition:
    when actions foreseeably cause unreasonable harm
  51. Negl: one (1) way we show breach: harm was "foreseeable"
    reas. person would or should have known there was risk
  52. Negl: five (5) ways we show breach: D was "unreasonable"
    • Hand test
    • custom
    • statute
    • res ipsa loquitur
    • induced a 3rd party to be negligent
  53. cause-in-fact, general definition:
    D's breach of duty in some way was actual cause of P’s injury
  54. For cause in fact, there are four (4) variations:
    • one tortfeasor: but-for causality
    • multiple causes, temporally concurrent + NOT separable: substantial factor approach
    • multiple causes, separable: D only liable for part of injury that their negligence caused
    • joint liability: P doesn’t know which D liable through no fault of P!
  55. Five (5 ) kinds of joint liability (to cause in fact)
    • but-for (BBQ)
    • concert of action
    • enterprise liability
    • alternative liability
    • market share liability
  56. proximate cause, gen. def.:
    was D’s conduct sufficiently import. in bringing about harm such that D is legally responsible?
  57. Four (4) things to do when looking at proximate cause:
    • don't use "direct test" from Polemis
    • use modern test which is "foreseeability" from Palsgraf
    • check intervening causes
    • check special rules if slip and fall
  58. Modern "foreseeability" proximate cause test, three (3) rules:
    • foreseeable P (Palsgraf)
    • foreseeable type of harm (Wagon Mound)
    • foreseeable extent, NOT... but "eggshell P"... liable for additional harm
  59. When does intervening cause negate proximate harm (break chain of events)?
    • when it was not foreseeable and so becomes a "superseding event"
    • doesn't matter if was negligent act
  60. Intervening causes we ALWAYS treat as foreseeable:
    • medical malpractice
    • rescuer (Rescue Doctrine)
    • acts of God
  61. Intervening causes we NEVER treat as foreseeable:
    gross negligence
  62. Intervening causes we SOMETIMES treat as foreseeable:
    criminal acts
  63. For "slip and fall" must show:
    • condition existed
    • knew
    • no reasonable care
    • AND
    • causation
  64. In negligence claims, injuries must be:
    • legally recognized
    • defined carefully
    • may include "lost opportunities"
  65. When thinking about damages, consider three (3) things:
    • compensatory
    • punitive
    • multiple tortfeasors
  66. The purpose of compensatory damages is:
    make P “whole”: to extent possible to put P in same pos. would have been w/o inj.
  67. Two categories of compensatory damages:
    • pecuniary
    • non-pecuniary
  68. Four issues that affect P's ability to collect compensatory damages:
    • failure to mitigate
    • collateral source rule
    • loss of consortium
    • lost opportunity doctrine
  69. failure to mitigate doctrine:
    • reduced damages if
    • P does not take reasonable steps
  70. collateral source rule:
    even if can collect from 3rd party, still collect for FULL amount from this D (often in insurance cases)
  71. loss of consortium

    • damages when lose “services” of another (like a spouse)
    • minority: for parent/ child
  72. lost opportunity doctrine, definition
    • P can recover even when more likely than not would have been injured anyway
    • don't need to have cause in fact
    • just loses chance for better medical outcome
  73. lost opportunity doctrine, three versions:
    • pure lost chance
    • proportional approach
    • substantial possibility approach
  74. pure lost chance:
    • P only needs to show that the D’s negligence decreased the P’s chance,
    • no matter how slight, of avoiding the inj
    • if show this P gets FULL damages
  75. proportional approach (variation on pure)
    • same test as pure
    • but recovery is limited to (% of chance lost) x (total amt of damages normally recovered)
  76. substantial possibility approach (variation on pure)
    P must show substantial possibility that D’s NEGL CAUSED injury (does not need to be > 50% but not clear how much)
  77. Punitive damages, purpose:
    Punitivegen. def.: damages intended to punish this D and/or deter this and/or other potential D’s
  78. Punitive damages, P must prove:
    reckless indifference to the rights of others, and conscious action in deliberate disregard of them may provide the necessary state of mind to justify punitive damages
  79. Punitive damages, limits:
    • unlawful where occurred
    • within J of this court
    • related to harm of this P
  80. Punitive damages, three (3) due process issues:
    • grossly excessive?
    • arbitrary?
    • notice?
  81. Punitive damages, three (3) factor test for grossly excessive:
    • degree of reprehensibility
    • single digit ratio p.d.:c.d.
    • civil penalties?
  82. Punitive damages, three (3) rules/issues for multiple tortfeasors:
    • joint and several liability
    • indemnity
    • contribution
  83. Defenses to negligence, three (3) categories:
    • P's negligence
    • assumption of risk
    • immunity
  84. strict liability, defintion
    • P can prevail w/o showing D was at fault

  85. strict liability, P must show:
    • - don’t need to show there was breach, level of care by D is irrelevant
    • - But NOT AUTOMATIC LIABILITY, Still need to show
    • - act
    • - cause in fact
    • - proximate cause
    • - damages
  86. vicarious liability (imputed), definition:
    person other than actual tortfeasor liable b/c of special relationship
Card Set
Rozan - Torts - Spring 2014
Rozan - Torts - Spring 2014
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