Professional Documents
Culture Documents
Battery
! Intentional AND unpermitted contact which is harmful OR offensive (to reasonable man)
! Battery = assault which results in harmful contact
! Transferred intent applies
! Eggshell skull rule – Even if unpredictable damages happen, D is liable for all damages
Torts to Property = trespass to chattels, conversion = actual damages needed; trespass to land
Defenses
! Consent – Voluntary and informed words or conduct that shows P assented to tortious act.
o Not a defense if activity is illegal.
! Self-Defense - can use reasonable force to protect oneself against occurring or imminent attack
o reasonably proportionate force to situation (Lane – young man hits old man in defense)
! Defense of Property – reasonable force used to prevent tort against property
o no deadly force allowed (Brown – kids steal melons and D shoots kid)
! Necessity
o Public necessity – takings for use; destruction in combat; destruction in emergencies
o Private necessity – Complete defense BUT if actual damages, compensate injury.
2. Negligence
Prima Facie Case
! Fault – an act of negligence = replaces duty analysis;
! Causation – must show it is the cause in fact + proximate cause of the injury
! Damages – injury
Fault
Failure of Applicable Standard of Care = Fault
! Reasonable man standard – objective standard - “presumed” to know certain facts of common
experience and not create unreasonable risks for other people (including infirm – i.e. blind)
o Minors – Must act as a reasonable “child” of his age except when in an “adult activity”
o Mentally deficient – must act as a reasonable man; not taken into account
o Physically deficient – taken into account
o Emergencies – Has a duty to act as a reasonable man under similar emergency situation
! Professional Standard of Care – i.e. lawyers, doctors
! Custom of the Industry – BUT, custom may not always be a good std, and although admissible
may not be conclusive (Helling – glaucoma); custom can determine medical malpractice
! Calculus of Risk – (B<PL) = If cost of taking precaution is less than likelihood + severity of
harm, law will impose duty on D to take reasonable care. (Carroll Towing – keep bargee on.)
o Risk must be both foreseeable and unreasonable. (Pitre – boy clocked by a baseball)
! Standard Imposed by Statute – Violation of a statute is negligence per se if (1) the injuries
were caused by the statutory violation and (2) injuries were the type statute sought to protect.
! Owners of Land
o Trespasser – No permission to be on land
! Liable if no warn of dangerous artificial activities and attractive nuisances
o Licensees – People who enter with owner’s consent for limited purpose
! Liable if does not warn/make safe concealed dangerous conditions
• No duty to inspect for defects
o Invitees – People who enter with owner’s consent
! Types
• Business Invitees – business dealings
• Public invitees – opened to public (Lunney v. Post) - To determine look
at (1) Economic benefit, (2) Invitation, or (3) Relevant circumstances
! Liable if doesn’t keep property safe (duty to inspect for dangerous conditions)
! BUT there is no general legal duty to aid (unless tortfeasor or common carrier/innkeeper.)
o May be liable for failure to aid identifiable victim and victim doesn’t know of threat.
! If volunteer rescuer, must perform act with due care and can’t leave P in a worse position.
! Negligent Infliction of Emotional Distress – If nuclear family bystander can get if foreseeable
BUT most cts require that there was a physical injury (unlike IIMD)
Res Ipsa Loquitur = Fault (REMEMBER – RIL ONLY proves fault – must still show causation.)
! If have no conclusive evidence that D violated standard of care (above), P can prove RIL:
o accident couldn’t naturally or reasonably occur without D’s negligence
o D had exclusive control of instrumentality
o P or third party did not contribute to injury
! D can rebut a RIL inference by proving by uncontradicted evidence that occurrence was:
o caused by some outside agency over which he had no control OR
o occurrence was one which could occur outside his negligence
Causation
Cause in Fact (Actual Cause)
! “But For” Test – Subjective test – Injury would not have happened “but for” D’s act.
! Substantial Factor Test – Infer event was a “substantial factor” even if no hard evidence.
o Eliminating possibilities can elevate low probability – (Daly - woman falls, gets cancer)
o Can be established if P has shown there are several possible causes each of which alone
could cause same injury but P doesn’t know which cause actually created injury.
(Summers v. Tice – P was shot by two hunters during quail hunt)
o Negligent acts may be substantial cause if they result in loss of a chance to avoid a risk
(Herskovits – D failed to diagnose P’s lung cancer initially)
Proximate Cause
! Foreseeability Test (Cardozo approach in Palsgraf)
o Liable for all injuries reasonably foreseeable (natural and probable) from faulty act.
o Summary of Evolution:
! Polemis (Plank falls and sparks fly causing fire) - Foreseeability of these injuries
doesn’t matter if foresee some injury.
! Palsgraf – Liable if could reasonably foresee act to cause these injuries
! Wagon Mound 1 (Ship drops oil into water and fire starts even though fire was
not foreseeable) – Liable if could reasonably foresee act to cause these injuries.
• Palsgraf & Wagon Mound 1 – Reasonable foreseeability determines both
fault and causation
• Effect of Wagon Mound 1 – If an unforeseeable injury is of same type as
a foreseeable injury, both are considered foreseeable.
! Kinsman Transit (Crazy ice/boat case that dams up river) – Damages are
foreseeable if they are within the “area of hazard”
! Wagon Mound 2 – Same as Wagon Mound 1 but say a reasonable man should
weigh effect of ignoring risk against difficulty of eliminating risk (calculus of
risk – should this case be under fault?)
! Directness Test (Andrews approach in Palsgraf)
o D is liable for all injuries, regardless of whether injured party was a reasonably
foreseeable P, that directly flow from D’s action (all a question of “expediency.”)
o Not used because meshes public policy and causation AND causation should be a
strictly logical, objective determination.
Intervening Act – If intervening act was a foreseeable consequence of D’s breach, both D and
intervening tortfeasor are jointly liable (i.e. Kinsman Transit.)
Damages
! Personal Injury – all past, present, and future personal injury no matter how unforeseeable
! Property damages – FMV of property
! Punitives – P may get punitives if D’s conduct was wanton and willful, reckless or malicious
! Nonrecoverable damages – Lost interest and attorney’s fees
! Duty to mitigate – P must take reasonable steps to mitigate (i.e. seek medical treatment)
! Collateral Source Rule – P’s damages is not reduced by comp received from insurance.
Affirmative Defenses
Contributory Negligence (NC)
! P is contributorily negligent if his conduct was a contributing, foreseeable cause of injury.
! COMPLETE BAR to P’s recovery. (Butterfield v. Forrester –P did not see D’s obstruction.)
! Last Clear Chance Doctrine – P’s contributory negligence is NOT a bar if D had last clear
chance to avoid the accident.
Comparative Negligence
! Pure comparative negligence – P’s fault reduces damages based upon percentage of fault
o Problem - favors party who has incurred most damages regardless of amt of fault
! Partial comparative negligence – P may not recover if more than 50% at fault.
o Problem – draws an arbitrary line
! No last clear chance rule
Assumption of Risk
! Express assumption of risk [under K]
! Implied assumption of risk – P recognized and understood the risk and knowingly and
voluntarily encountered the risk
o “no-duty” rule applies only to risks which are “common, frequent, and expected.”
[Being hit with a baseball in the stadium
No Mitigation of Damages
! Seat Belt Defense – states are split on whether failure to wear a seat belt is aff. def.
Can hold Multiple D’s liable using following theories: alternative liability, concert in action,
enterprise liability, market share, “risk-contribution” theory.
3. Strict Liability
In certain activities, D may be liable for P’s injuries, even when D is not at fault.
Prima Facie Case
! Activity must be within certain categories
! Causation – Abnormally dangerous activity was cause in fact + proximate cause (see above)
! Damages – P must either prove personal injury or property damages
Categories
! Animals
o Trespassing Livestock – owner strictly liable for foreseeable damages
o Domestic Animals - Owner not strictly liable unless animal trespasses OR if owner
knows animal is abnormally dangerous
! Abnormally Dangerous Activity (not product)
o RS2 §519 –
! Subject to liability for harm to another resulting from abnormally dangerous
activity although he has exercised utmost care to prevent the harm
! Strict liability is limited to the kind of harm that makes this activity dangerous
(Foster v. Preston Mill – blasting operations frighten mink causing killing.)
o RS2 §520 – Balance of Factors Test to Determine Abnormally Dangerous Activity
o Major activities this goes to is: blasting; transportation of gas; impoundments;
application of poisons; landfills and toxic waste; atomic energy
! Contributory negligence, comparative negligence, and assumption of risk are defenses to this
Slander Per Se –
! assume that the statement is defamatory and causes damages (so must prove 1,2,5)
! Imputing serious morally reprehensible criminal conduct
! Allegations of loathsome or infectious disease
! Injures in respect to office or profession
! Lack of chastity to a woman
Defenses
! Truth
! Privilege (absolute and qualified)
! Poor General Reputation
Private Individuals in Private Matters - Go back to common law defamation (Greenmoss Builders)
7. IIMD in Relation to Defamation
See above for IIMD generally.
! Many IIMD cases involve defamatory statements made to P and are either accompanied by
defamation OR are made in IIMD because defamation requires higher standard.
First Amendment Defenses such as freedom of speech and freedom of religion can block an IIMD
action. (i.e. Paul v. Watchtower Bible – P shunned by Jehovah Witness and ct held allowed because of
freedom of religion; Hustler v. Falwell – No actual malice b/c a joke.)
8. Privacy
False Light Cases
! Publicity which places P in a false light in the public eye
! Prima Facie Case
o Stmts are false and personally embarrassing (to reasonable man) but not defamatory
o Most states require D made it with “actual malice”
o Damages
! Punitive damages allowed if actual malice met
! Compensatory - most require actual malice; can get IIMD