Torts- Midterm Outline I. Torts (General) - Def.

Tort: A civil wrong, other than a breach of contract for which the law provides a remedy - Purposes Of Torts: Corrective Justice: Face-to-face correction of a (wrong) moral imbalance between individuals Or Redress for civil wrongs: Not seen as fully compensatory or right the wrong, but rather recognition that victim wronged in a proportional manner to the wrong and their injury Optimal Deterrence: to deter excessively risky behavior (cost of deterring does not outweigh deterrence) Loss Distribution: large number individuals bearing small loss is better (and entails less loss) than a single person bearing one Compensation: Very minimal application. If driving function would only be interested in the degree of misfortune and not the commission of a tort Redress of Social Grievances: Individual v. Authority- Esp. against large, impersonal institutions - Four Elements of any Tort: Duty, Breach of Duty, Harm, Causation - Categories: Intentional Torts, Negligence (no need for intent), Strict Liability II. Intentional Torts Battery, Assault, False Imprisonment, Intentional Infliction of Emotional Distress - Prima Facie Case (all cases): 1. Act 2. Intent - Specific Intent: act with the purpose to producing consequence - General Intent: act knowing the consequence is substantially certain to result *(Garratt v. Dailey) - transferred intent applies: do not need to intend harm or offense to individual suffering from 3. Causation - can only recover for harms for which conduct of P is substantial factor of injury - cause in fact (literal cause- but for this) vs. proximate cause- which? - Other Concepts/Issues: - Claim must fit in legal box: any intentional interference of bodily autonomy not falling in categories of assault, battery, and false imprisonment are not actionable (where there is no remedy there is no wrong)

1.

Battery - Rule: Liable for a harmful or offensive contact with another, resulting from an intention to cause that contact, or from an intention to put another in apprehension that a harmful or offensive contact is imminent. - Harmful or Offensive: Reasonable Person (objective) standard - exception: if P has special information regarding sensitivity of D - Independent rules can help determine standard (i.e. classroom rules*Vosburg v. Putney) - Contact: direct or indirect - Intent: intent of harm not require, only of contact - Principles of: protection of personal autonomy, dignity, and physical security - Other Concepts/Issues - Actual damages not required Assault - Rule: Liable for creating in another a reasonable apprehension of imminent harm or offensive contact resulting from an intention to cause OR threaten (create apprehension of) such harm or contact - Reasonable Apprehension: - no apprehension, no assault (i.e. gun pointed while sleeping) - apprehension= expectation (does not require fear/intimidation in D) - exception to objective standard: if P has special information regarding sensitivity of D - Imminent threat: - mere words are not enough (overt act required) - more conditional the threat, weaker claim of imminence (although still sufficient- i.e. your money or your life) - must be immediate, close (i.e. not over telephone), and actual (no conditions) - Intent: transferred intent applies - Principles of: protection of personal autonomy, dignity, and physical security - Other Concepts/Issues - Actual damages not required False Imprisonment - Rule: Liable for restricting Ps freedom of movement where...Elements: - Intent to restrain freedom: specific or general - in cases of serious harm (beyond dignitary) specific intent less important

2.

3.

- Total Confinement: three walls do not make a prison , no reasonable means of escape - Conscious Awareness of Confinement (or harm as a result of) - Principles of: protection of personal autonomy, dignity - Other Concepts/Issues - Physical force not required if threat of force *(Coblyn v. Kennedy) - Weighing defense AR *(Coblyn v. Kennedy): confined on reasonable grounds, reasonable amount of time, and in a reasonable manner - Unequal power relationships can narrow scope of consent 4. Intentional Infliction of Emotional Distress (IIED) - Rule: Liable for emotional distress and for any resulting bodily harm when by extreme and outrageous conduct, intentionally or recklessly cause severe emotional distress - extreme and outrageous conduct: conduct that transcends all bounds of decency tolerated by society (objective) - High bar set for standard to protect against potential abuses - Examples: misuse of authority (i.e. school official, police), extreme business conduct (repeated, extreme methods of collection) - Offensive or Insulting Language (generally NO) - exception for known sensitivity (scope broadens) if special knowledge of Ps sensitivity - severe emotional distress: physical harm not necessary, but more than simple humiliation/unhappiness - Intent: specific or reckless (high probability will result) - Other Concepts/Issues - Third Party Emotional Distress: liable for IIED without specific intent if intentionally cause severe, physical harm to third person if plaintiff can prove: 1) present when injury occurred (can be relaxed in extreme cases) 2) close relative of injured person (not necessary if specific intent exists) 3) defendant knew present and a close relative OR 1) severe emotional distress results in bodily harm Defenses to Intentional Torts: Consent, Self-Defense, Defense of Others, Defense of Property, Necessity

III.

1. Consent - Rule: when plaintiff is willing for conduct to occur (objective consent standard for D) - violenti non fit injuria: voluntary assumption of risk - Expressed (actual consent) or Implied (apparent consent): must be communicated, but can be manifested by words or conduct (even in silence) - Reasonable person would have inferred-> Honest belief of D no defense

- Apparent Consent can be inferred from - usage and custom (individuals consent to ordinary contacts of daily life, professional sports player) - Authority of Law - prior relationship - Other Concepts/Issues - ***Scope: If act is beyond scope of consent than defense is not valid - Withdrawn Consent: can be withdrawn, must be communicated also - Capacity: Infancy, intoxication, or mental incapacity usually invalidates consent - Consent induced by fraud or inflicting duress is invalid - Substituted Consent: (i.e. doctor, parent) degree of risk determinate of effectiveness of defense - Emergency Doctrine: If cannot gain consent and cost or period (time) of waiting extraordinarily high, individual (for P) and social interest to presume consent (implied consent) *(Mohr v. Williams- note found for plaintiff) - Criminal Violation: - majority view- cannot consent (especially for crimes that are breaches of peace) b/c undermines protection under law (reinforcing statutory law) - minority/restatement- where parties equally wrong, tort law wont intervene - Gender-Bias: slightly pro-defendant, therefore pro-male in sexual misconduct - Risk Premium: some employees being compensated for assumption of risk (contract may be more appropriate to resolve and avoid tort double-dipping) *(McGuire v. Almy) 2. Self-Defense and Defense of Others (Privileges) - Rule: privilege when reasonably believe use of physical force is necessary to prevent or repel an attack or imprisonment may use such force as is reasonably necessary to prevent harm. - reasonably believe: apparent necessity sufficient-> privilege will lie with mistaken belief* (but objective standard- honest and reasonable) - *note argument against that innocent party harmed - necessary to prevent: when threat ends, so does privilege - reasonably necessary force: liable for injury resulting from unreasonable or excessive force - usually guided by equivalence rule - equal or less than threatened harm - reasonable means of retreat taken into consideration - Other Concepts/Issues - Third Party Injury: Acting in self-defense and injure innocent 3rd party not liable - Self-Defense of Third Party (Defense of Others): OK if reasonably believe 3rd party entitled to self-defense and that intervention necessary to protect

- same level of force may be used as is threatened to third party 3. Protection of Property (Privilege) n/a

4. Necessity (Privilege) - Rule: Privilege when interfering with the real or personal property of another where the interference is reasonably necessary to avoid threat of serious imminent harm to oneself or ones property for which P is not responsible [and where threatened harm is more serious than the apparent results of acts taken to avert it- economic analysis of liabilityincentivizing social benefit] - Use of your property for my benefit - Complete/Absolute Privilege: no liability, complete defense, Afforded to cases of Public Necessity - Incomplete Privilege: Generally applied in case of Private Necessity - ARs for: actor will internalize/weigh outcomes of behavior, all things being equal (both innocent) then the party on which nature placed risk should bear burden of saving themselves - Other Concepts/Issues - Economic/Social Incentives: Social benefits to necessity defense, can vary on facts of case [i.e. worth of boat and dock *(Ploof v. Putnam)] 5. Insanity (NOT A DEFENSE) - Why still liable? - problems of proof, comparable innocence (more blameworthy compared to victim), encourages family/medical professionals to be cautious - Counter: as we learn more about mental health problems-> problems of proof reduced, characteristics more similar to physical handicap - Intent: intent to contact still sufficient (regardless of motivation, intent to harm) IV. Negligence Failure to exercise reasonable care to avoid injury or damage to another person or property Prima Facie Case (Elements): - Duty: to conform to specific standard of conduct to protect against unreasonable risk of harm - Breach of that duty - Causation (actual (but for) and proximate (unbroken causal chain)) - Damage to Ps person or property

A.

Principles of: Right of Autonomy, Man must use property so as not to injure that of others B. Proxies for Negligence 1. Reasonable Person Standard 2. Negligence Calculus (Learned Hand) 3. Custom (compliance or non-compliance) 4. Professional Negligence or Malpractice 5. Statutes (violation of) 6. Per Se Rules 7. Role of Judge and Jury 1. Reasonable Person Standard - Negligence: failure to exercise the care that would have been exercised by a reasonably prudent person under the circumstances. - Objective Standard (incapacities or limitations of defendant, good faith or best effort are irrelevant, rather how reasonably prudent person would act) - *(Vaughan v. Menlove) (combustible hay) - Exceptions to objective standard: - Youth (for child-like activities) - Rationale: all jurists can place themselves in position (reasonableness perceptible), motivation for kids to have experiences leading to maturity - Physical Infirmities - Rationale: visible, measurable, verifiable, physically infirm can take extra care themselves - can cut both ways (potentially higher standard of care) - Restatement: conduct of an actor with physical disability is negligent only if it does not conform to that of a reasonably careful person with the same disability - NOT Mental Infirmities: less perceptible, problems of proof, usually guardian and opportunity to incentivize caution - exception: if analogous to sudden physical infirmity - Semi- Exceptions to objective standard: - Skill Variation: beginners (lower standard of care (where some risk assumed by defendant) v. experts (higher standard of care) - Life-saving Activity: voluntarily risking potential harm to oneself for the purpose of saving a life is not negligent unless regarded as rash or reckless under the circumstances *(Eckert v. Long Island R.R) - In practice tort system no absolute distinction between life and property - no general duty to rescue w/out special relationship

- Ordinary Usage/Custom: when everyone takes certain unnecessary risk (if accepted due to societal benefit)- question for jury - Foreseeability Requirement: Defendant not unreasonable/negligent unless knew or reasonably should have known that his actions posed a risk of harm *(Blyth v. Birmingham- frosted pipes) - usually sent to jury (modern trend) - Not average, but idealized reasonable person 2. Negligence Calculus - Rule: assumes reasonably prudent person would take cost justified precautions - Cost-Benefit Analysis: Breaks down negligence into three components: 1) probability a particular act or omission will cause harm 2) the magnitude of that harm, if occurs 3) value of the interest that must be foregone or sacrificed in order to reduce risk of harm - Hand Formula: If Probability (P) x Injury (L) > Burden (B), unreasonable-> negligent If Probability (P) x Injury (L) < Burden (B), reasonable-> not negligent - All variables to be considered in aggregate (not just specific case/harm) - Other Concepts/Issues: - Quantification Problems (ex ante and ex post) - Marginal Precaution: if able to identify most cost-effective level of precaution investment. Can argue marginal precaution not justified. - Risk Preference/aversion: With hand formula, all individuals risk neutral (wealth affect, luck belief, aversion to losses/risk preference for gains) - Strict Liability: Yields same, cost-effective decision-making, but costdistribution different (harmed not bearing costs), maybe less risk aversion do to certainty of torts system - Policy: Immoral? economic over moral interests- should incentivize reasonable over rationale (efficient) behavior. Counter: moral to treat anothers property equal to ones own property 3. Custom 4. - Rule: Used to set specific standard of care. Non-compliance used as shield, and compliance used as shield, majority view NOT dispositive. Three approaches: 1) Proxy/legal standard for reasonableness: sever custom from reasonableness determination- whats standard custom is by definition reasonable as matter of law exception where applied: where special info known by P

 pros: custom shows what industry values/believes is reasonably safe *(Titus v. Bradford), proxy for cost/benefit Cons: no chance for negotiation where third party harmed, deters improvement/adds risk to innovation, untaken precaution claim insufficient, limits employee bargaining power 2) Rejection of custom (as defense) for demonstrating ordinary care *(Mayhew- mine shaft bucket hole) Pro: if unreasonable behavior, custom shouldnt matter (whole industry negligent) Con: bypasses infeasible claim regarding untaken precaution 3) Modern, dominant Goldilocks Approach (little bit of this, little bit of that- *(TJ Hooper- radios on tugboats): Unlike Titus (custom= standard of care) and unlike Mayhew (jury doesnt even get to hear about custom), but rather that custom evidence is admissible but not dispositive - Other Concepts/Issues: - Coordinating Function: potential victims may be aware of practices by potential injurers and adjust activities accordingly - Court Intervention: market not acting efficiently, or parties facing harm at disadvantage, courts justified to substitute own assessment (counter: paternalistic b/c custom showing priorities of parties/industry) - Custom relies on market to be rationale v. interventionist Hand-Formula 5. Professional Negligence or Malpractice - Medical Malpractice Exception: custom dispositive in cases of medical malpractice (custom as safe harbor) - Rationale: separate negligence from unavoidable harm in medicine, complex/scientific, harmed patients-> jury emotional bias - Respectable Minority Rule: where non-compliance with standard rejected by respectable minority of practitioners is not malpractice (reasonably large) - Two Schools Problem: - National v. Local standard: modern trend national (average, not best) - New Treatment: Potentially discouraged. Defenses to potential harm: (lack of causation- would have happened under old treatment), clear evidence standard of care+, respectable minority - Expert Testimony: If conflict on standard of care, question for jury (Goldilocks approach) - Duty to Disclose: - Principle of: Autonomy Principle every human being right to determine what shall be done with body (limited by reasonable patient standard)

- Reasonable Patient Standard (majority): requires physician to disclose info reasonable patient in what physician knows or should know to be patients situation would wish to know. - custom not dispositive, patient autonomy/jury empowering - expert testimony on risks/benefits, not custom of disclosure - exception to objective: known idiosyncratic situation - Reasonable Physician Standard: must meet requirements of malpractice action- proving defendant failed to comply with standards of profession regarding disclosure to plaintiffs in patients position - custom dispositive, medical community sets, not patient - Exceptions to Disclosure: 1) emergency doctrine 2) therapeutic treatment privilege (very narrow): disclosure poses unfeasible and causal risk from medical point of view - Causation Requirement: After proving improper disclosure, must also prove causation - but for (i.e. would have declined treatment and what would have chosen = less harm) - objective standard: reasonable patient - Difficult to prove w/ serious procedures, easier elective procedures b/c alternative treatments 6. Statutes C. Defenses to Negligence 1. Contributory Negligence scheme: If other plaintiff negligent at all, then plaintiff cannot recover - note: court more likely to subjective for plaintiff 2. Comparative Negligence scheme (modern trend): look at degrees of negligence-> can result in reduced damages award V. Strict Liability (Liability Without Fault)

- Prima Facie Case: - Absolute Duty on part of D to act without harming another or their property - Breach of that duty - Causation (actual or proximate) - Damage to Ps person or property - Causation: Still complex. Did other take, or should have taken, efforts to mitigate risks under circumstances?

- Defenses: - Assumption of Risk - Contributory Negligence: Generally no defense if unknowing contributory negligence (failed to realize risk) but defense if knowing contributory negligence (knew of risk and unreasonable conduct cause of dangerous activity miscarrying) - Comparative Negligence: contributory negligence can result in reduced damages award - Other Concepts/Issues - Principle of Reciprocity/Reciprocal Risk: argument for SL that not reciprocal risk between D and P and therefore D should bear burden of harm Policy Issues to Consider: - How effectively would this rule/ruling deter/incentivize each party - Coase Theorem: Are transaction costs low (reasonable structural bargaining: intervention of court yield efficient outcome regardless, but potentially different distribution of resources - Are transaction costs high: intervention of court high impact/possibly inappropriate - Legislative Authority may be most often appropriate rationale - Problems of Proof - Comparable Innocence (P v. D) - Assumption of Risk (and risk premium) - Jury instructions: important for appeals, less so in influencing jury - Systemic Cost Considerations: more or less suits, more or less expensive suits (no settlement/difficult trials, more appeals) - Unlawful v. Lawful acts (historically moved left or right on spectrum of SL to Negligence Liability) - Direct v. Indirect Harm (historically moved left or right on spectrum of SL to Negligence Liability) - Change in common law as subsidy to corporation: SL-> negligence doctrine, contributory negligence scheme, burden of proof on plaintiff - Operational bias of juries (contextualizing/subjectivizing, deep pocket bias) - Negligence impact on level of care v. level of activity Random Concepts to Place in Outline Later - Inevitable Accident: defendant acted neither negligently nor with intent to harm - Untaken Precaution: If available, inexpensive, and effective P can show lack of reasonable care. Must show feasible and not result in unreasonable risk to others (no catch-22 scenarios) *(Cooley v. Public Service Co.) voluntary/involuntary intentional/unintentional lawful/unlawful

necessary/unnecessary negligent/non-negligent (leaves up to jury) If the act was lawful and contacts was unintentional, plaintiff can only recover if it is shown that defendant acted negligently or carelessly, failing to exercise due care to be expected from a reasonable person under the same or similar circumstances. The burden of proof is on the plaintiff.