Intentional Torts

Battery An intentional unpermitted act causing harmful or offensive contact with another. Elements: 1. Action with Intent The tortfeasor must have acted intending to cause a harmful or offensive contact with the person. a. In sole-intent jurisdictions, the defendant must have only intended to do the act which resulted in the harm. For example, a defendant would be culpable if he intended to kick his foot, but did not intent to cause harm to the plaintiff. b. In dual-intent jurisdictions, the defendant must have intended to both (a) do the act which resulted in the harmful or offensive contact and (b) that such act would almost certainly harm the plaintiff. c. Also, some jurisdictions employ a certainty of harm, rather than intent. Something like recklessness. Most courts say this is negligence. d. Doctrine of Transferred Intent The intent requirement transferred across victims, such that if a defendant accidentally commits a harmful touching on someone while intending battery on another, the law will transfer the intent from the intended victim to the accidental victim. It similarly transfers across battery and assault, such that if one intends only to assault, but accidentally commits a harmful touching, that person will have fulfilled the intent requirement for battery. 2. Harm to Plaintiff The action must result in a legally cognizable harm to the plaintiff. This harm can be physical, emotional or economic. These sorts of harms are realized when a battery results in a physical injury that may require some costly medical treatment and result in physical pain, but they can also be realized by any conduct that would be offensive to a reasonable sense of dignity. For example, the pushing down of an assistant nurse by a doctor when she didnt perform to his liking may not have caused a physical injury, but would have reasonably offended someone in a similar position. That doctor would be liable for battery. Similarly, any intentional touching with explicit negative consent not to touch is also offensive contact which is harm cognizable under battery. Note that in because dual-intent districts require that someone intend to cause harm, if the defendant does not know of a plaintiffs express wish not to be touch and the touching is otherwise benevolent, the defendant would not have the intent requirement for battery. 3. Instrumentality doesnt have to be fists, can also be using tools, including smoke. 4. Can also be completed by touching an immaterial extension of the person. Special Affirmative Defenses 1. Age Minors are typically able to commit battery if all the elements are present. However, most states find that particularly young children are incapable of the requisite intent. Assault Intentional placing of another in a reasonable apprehension of an imminent harmful touching (battery). Elements: 1. Action with intent A defendant must intend to commit an act that would provoke s reasonable person into the apprehension of an imminent battery. a. In sole-intent jurisdictions You only need to intend to do the action which causes the apprehension. b. In dual-intent jurisdictions, you also need to intend that you actions cause the imminent apprehension. 2. Imminent Must be now; general phrase is no significant delay. 3. Apprehension Knowledge that something is coming. Does not require fear, only knowledge. 4. Touching of the Mind There must exist a realization such that mental or physical anguish results. Almost always precedes battery. Conditional threats are not assault, but must look at the totality of circumstances. Threats involving things which the actor does not have a right to could also be assault. False Imprisonment Conduct by an actor which is intended to confine another within boundaries fixed by the actor. Elements: 1. Intent to cause confinement a. Same dual- and single-intent issue 2. Actual confinement The defendant must have caused the plaintiffs to be confined either through physical force, duress under color of authority, threats or other means will suffice. It is just required that a reasonable person would feel like they could not leave.

3.

4.

Fixed set of boundaries The confinement must be a limited to a set of boundaries. The size requirements for these boundaries are not clear in the common law, but they must not be too expansive (such as the borders of a country). It is not enough for a defendant to limit the plaintiff from going to a specific area. Victim must be conscious of confinement or suffer some harm by it A victim must either (a) be aware that they are being confined or (b) suffer some legally cognizable harm as a result of the confinement.

Law enforcement privileges are limited by duration (such that if it is clear that someone did not commit a crime, then law enforcement must release them in a reasonable amount of time) Intentional or Reckless Infliction of Emotional Distress (Restatement 45-46) An actor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional disturbance to another is subject to liability for that emotional disturbance and, if the emotional disturbance causes bodily harm, for that harm. 1. Elements: a. Extreme and outrageous conduct b. Severe emotional harm c. Intentional or reckless state of mind 2. Name calling and other verbal abuse typically doesnt amount to extreme and outrageous, unless special relationship exists a. Knowledge of vulnerability falls under power relationships 3. Typically employ a sliding scale between repetitiveness of conduct and severity 4. Fact-sensitive, case-by-case inquiry 5. Must prove sufficient causal relationship between conduct and plaintiffs distress 6. Sometimes clashes with first amendment rights 7. Must be intended, or at least reckless in their actions, to fall under this tort 8. Parasitic on other claims; damages for mental anguish included in other torts Bystander Intentional Infliction of Emotional Distress 1. Similar to Intentional Infliction of Emotional Distress, same elements 2. Intent must be aimed at the third person (Transferred Intent doesnt apply), or reckless as to third person distress 3. Requires that a bystander be present at the time, although some courts have relaxed this rule for egregious torts.

Affirmative Defenses for Intentional Torts

Self-Defense, Defense of Third Persons, Defense of Property Consent Public Necessity, Private Necessity Law Enforcement Public Rights Arrest & Detention

Self-Defense Privilege One is privileged to use reasonable force to defend against harmful or offensive bodily contact and against confinement. It does not apply to: insults, provocation, and revenge. Can be used in response to false imprisonment, but not officers wrongfully arresting. Defense of third persons now also allowed. Courts are split as to the case of mistake (defending a third person that you thought was receiving a battery, but wasnt) Authorities may use chase and use force to arrest. Common law has narrow ability to chase, most statutes give ability to chase in hot pursuit. In case of mistake as to guilt of person they are chasing, jurisdictions also split some say the shopkeeper is responsible for any torts committed, some still hold it a justification. o Courts are split as to chasing shoplifters or other people off property o Mistaken use of force courts are also split Defense must be appropriate to danger no deadly force except in case of life or limb; note some jurisdictions also require one to retreat if able. Defense and Repossession of Property Can use force to defend stealing of property and trespass o Deadly force can never be used in response to property crimes o May use self-help and reasonable use of force to *+ Consent Privilege A partys consent for another party to commit an act normally limits the acting party from liability for injury to that perso n. The burden of proving consent as an affirmative defense falls to the defendant, by their word, act or previous custom.

The ability for a party to consent can be limited by: o Power relationships (subordinate relationships) employers, custodians, etc. o Capacity age (for sex, abortion, etc.), mental incapacity (mental infirmity, intoxication) Affirmative consent is limited in scope actions cannot exceed consent, especially when explicit o Special case in surgery, where a doctor is bound to use best professional judgment because uncertain nature of surgery and inability to get consent in timely fashion. o Consent always tempered by exigent circumstances also patients capacity in those circumstances. Knowing consent requires disclosure (courts split on STD cases) o Consent by fraud never allowed o In case of Mistake, courts will look at the materiality of the mistake to the consent. Consent can be revoked at any reasonable time. Consent can be implied in exigent circumstances threatening death or bodily harm.

Public Necessity One is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster. Unless otherwise specified by statute, the public does not ordinarily need to pay for damages suffered by the owner. Many states have now adopted statutes for this. Must claim the act is public, not private, interest; reasonable belief that action is needed; action is a reasonable response Private Necessity In the course of (a) defending himself or his property or (b) others or their property from some threat of imminent harm for which the person is not responsible, that person can intentionally commit some necessary and reasonable act of trespass or conversion without liability. Private necessity, different from public necessity, damages for losses due to the trespass and/or conversion need to be paid to the owner. Necessity to take a life to save others is arguable, but not generally accepted. Police Justification General allowance for police to go about their business to arrest or search in the public interest. Public Rights General privileges for public employees to go where they need to go to do their job for the public good.

Negligence
Negligence The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation. Elements of Negligence 1. Duty a. General Standard of Care i. Every person has a duty to exhibit a standard of care that a reasonably prudent person would use under like circumstances. ii. The standard does not change when dealing with dangerous instrumentalities or emergencies, but a reasonable person would likely exercise a greater degree of care. iii. Rider appears for handicapped actors such that they would act as ordinarily prudent person with like infirmity. For example, a reasonable blind person may not be liable for accidentally dropping a marble, but they would be liable for a car accident because and ordinarily prudent blind person wouldnt drive. 1. For public policy reasons, mental infirm people are held to the ordinary person standard. Public policies include allocating losses between innocent parties, provide incentive for caretakers to control infirm individuals, reduces reliance on medically infirm defenses and avoiding procedural issues with proving mental infirmity. iv. Ordinary standard Old age, mental infirmity (including insanity), voluntary intoxication, internal business standards, general custom (except for medical malpractice) v. Factors incorporated into standard Physical characteristics (including sudden incapacitation), knowledge of circumstances, skill level, young age (sometimes) vi. Children will be held to the same standard of care as ordinary adults when partaking in dangerous activities normally reserved for adults (although the line there is vague) 1. Rule of 7s p. 124 b. Negligence Per Se i. A violation of a known positive law amounts to a breach of duty to reasonable care. The existence and knowledge of the law establishes a duty of care to be followed by accused. A breach of such law would therefore also be a breach of the accuseds duty of care. ii. Only applies to laws that express unlawful conduct but not civil liability. iii. Elements of Negligence Per Se 1. Statute must clearly define required conduct 2. Harm of type meant to be protected against by statute 3. Party was member of class designed to be protected by statute 4. Violation must be a proximate cause of injury iv. Possible Excuses from Negligence Per Se 1. Violation reasonable in light of actor's childhood, physical disability or incapacitation 2. The actor exercises reasonable care in attempting to comply 3. The actor neither knows nor should know of the factual circumstances that render the statute applicable 4. The actor's violation is due to the confusing way in which the requirements are presented to the public 5. The actor's compliance with the statute would involve greater risk to physical harm to the actor or others than noncompliance 2. Breach An action or omission that a reasonably prudent person would foresee to create an increased risk to himself or others is a breach. When discussing a breach, make sure to discuss reasonability, foreseeability and the risk-utility equation. a. Sometimes difficult to differentiate with intentional torts, because of certainty involved in negligence. b. Analyze each act for breach c. Employers can typically rely on the reasonableness of their employees when they are trained professionals (this is in relation to the safety of the employee, not the customers) d. Hands Risk-Utility Analysis (p. 153) i. When assessing an action or omission that creates a risk, the courts will take into account the costs of assuming the burden of preventing such a risk in ascertaining its reasonableness. ii. If the probability of an injury times the gravity of the harm is greater than the burden of preventing it, then the action to prevent the harm is reasonable. iii. Problems with application

3.

1. Difficult to estimate risks, probabilities and gravity of injuries with any certainty 2. Similarly, costs and benefits of avoiding risk difficult 3. Negligence sometimes because of forgetting, even when cost is accounted for e. Hazard negligence i. 3 methods of proving: 1. Defendant created the hazard and failed to remedy 2. Defendant noticed or should have noticed and failed to remedy 3. Defendants business makes hazard likely and defendant failed to remedy ii. Constructive Notice of hazard 1. Defendant should have known about a hazard due to its existence for a reasonably long period of time. f. The standard of care for negligence doesnt change if an individual or business holds itself to standards higher than that (or lower than that) g. The standard of care for negligence doesnt change depending on the general custom except in medical malpractice context (but evidence from general custom is admissible to ascertain standard of care) h. Reverse Negligence Per-Se i. Compliance with laws or regulations does not amount to compliance with a duty of care. ii. However does serve evidentiary purpose i. Res Ipsa Loquitur Limited doctrine wherein the elements of duty and breach are inferred from the nature of the event, even without direct evidence of action or omission. i. Will automatically survive directed motion and summary judgment ii. Many courts allow juries to draw inference of negligence as well, but the burden remains with the plaintiff iii. Elements of Res Ipsa: 1. Injury is of the type generally only created through negligence 2. More likely than not that the defendant was the responsible party a. Because the defendant had the right or power of control, and the opportunity to exercise such control, over the instrumentality of the incident (different from old rule which required direct control) 3. Not caused by the plaintiff iv. Courts also generally require that the defendant have substantially more knowledge regarding the circumstances of the event than the plaintiff. Or at least that plaintiff made adequate attempt to get knowledge and was unable. v. When it is equally possible that multiple parties are liable for an incident, a court may still apply Res Ipsa Loquitur in cases where it feels comfortable. Actual Cause a. If the incident in question would not have occurred but for the act of negligence by the defendant, then that act is an actual cause of the injury. But-For test may not apply when outcome unjust. i. When two or more people liable, but-for test may not capture culpable parties and they may apply different test. ii. When injury cannot be apportioned with reasonable certainty to multiple wrongdoers, they will be held jointly and severally liable (different from earlier Robicheaux rule, where no one would be at fault if they didnt act in concert) iii. If a partys negligent act fails the but-for test solely because other, non-negligent events were sufficient to cause the harm, the party is still liable. b. Where only one negligent caused an injury, but multiple negligent acts were committed which could have been the injuring act, all negligent parties will be held liable. c. Question of fact for jury, except where evidence so strong there is no dispute. d. Lost Opportunity Doctrine Medical Malpractice i. When a pre-existing injury or illness is aggravated by the alleged negligence of another, the injured party can sue for her lost opportunity to obtain a better degree of difficulty. ii. 3 approaches 1. Must be deprived of at least a 51% chance of a more favorable outcome than actually received, or no recovery. 2. Relaxation of the 51% rule but damages for entire recovery still awarded 3. (Favored approach) Lost opportunity is itself injury; damages awarded by multiplying percent of lost recovery by total injury. iii. Increased future risk treated similarly

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5.

Proximate Cause A plaintiff must prove that the injury caused is within the reasonable scope of risk of the act of negligence on the part of the defendant. This scope of risk includes injuries reasonably foreseeable to the negligence act. a. The injury must be of the same general nature as the foreseeable risk created by the negligent act. b. Policy has a large impact on proximate cause decisions because it illustrates what kind of actions society wants to be punished, and which ones are okay. c. Judges, juries and attorneys can describe circumstances at different levels of abstraction to get them into or out of the scope of risk (or foreseeability) d. Based on Cardozos opinion in Palsgraf (although adopts language from Andrews) e. Generally, rescues are foreseeable risks of creating a dangerous situation f. Is the injured person a member of the class of people who is subject the risk. g. As long as an injury is foreseeable, the extent of that injury doesnt need to be foreseeable must take victims as you get them thin skull rule (but remember limits, such that the act should have caused a normal person harm) h. Intervening Causes (Way to attack the prima facie case for proximate cause) i. Superseding causes are intervening causes that limit or terminate liability for the original tortfeasor. ii. However, if an intervening act (even a criminal or negligent act) is reasonably foreseeable to the initial negligent act, then it still falls within the scope of risk and the original party is still liable. i. Termination of Risks - When the risks from a negligent act have terminated and the victim has reached a position of relative safety, the original negligent act will no longer be a proximate cause of subsequent events. Injury a. Must be actual, cognizable harm.

Notes on Negligent Infliction of Emotional Distress (Restatement 46) 1. Form of negligence, definition: a. Places party in immediate danger of bodily harm and the emotional disturbance results from the danger b. Occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional disturbance. 2. Parasitic on other claims; cannot be claimed in connection with other torts 3. Doctrines employed for direct infliction a. Physical Injury required physical injury from impact Old rule b. Physical Impact no physical injury required, but impact or physical touching required - few states employ (Florida) c. Zone of Danger If negligent act puts plaintiff in danger of physical injury, can sue for emotional harm i. Requires (a) plaintiff to be in the zone of danger created by the act and (b) plaintiff must feel fear or extreme apprehension that they themselves were going to be physically harmed. ii. Note that this basically bars bystander claims if they werent in danger of injury. d. Restatement 46 A person is liable if (a) the defendants negligence places plaintiff in immediate danger of bodily harm or the negligence occurs in the performance of particular categories of undertakings, such as caring for an disposing of dead bodies, or in connection with a relationship in which the defendant is in a position of power or authorityover the plaintiff, or in which serious emotional disturbance is otherwise likely. i. Basically assigned fault for people in the zone of danger, for certain types of duties, for people in power relationships or injury is otherwise foreseeable. 4. Doctrines employed for bystander infliction a. Foreseeability Dillon Basic foreseeability with some caveats: i. Plaintiff must be near the scene of accident and not far away ii. The shock must have resulted from a direct emotional impact from sensory and contemporaneous observance of the accident iii. Plaintiff and victim must be closely related b. Foreseeability Thing Taking guidelines from Dillon and adding rules i. Closely related to injury victim ii. Plaintiff present at the scene of the injury producing the event and is aware of injury being caused to victim. iii. Plaintiff suffers serious emotional distress as a result, beyond that which would be anticipated if a disinterested witness viewed the same thing. c. Direct Victim (Under Restatement 46) Some jurisdictions have done away with the bystander qualification in certain circumstances where they owe a particular duty to the plaintiff (power relationships, doctors). 5. Proving injury a. Very few jurisdictions require a physical manifestation of emotional injury to bring claim

b. c.

Some jurisdictions require medically diagnosable disorder, but not necessarily physical manifestation Many states abolished rule, requiring case-by-case analysis of emotional disturbance

Notes on Loss of Consortium Claim 1. History used to be for master-servant relationships. 2. Claim for the loss of a legally protected interest in personal relationships, such that if one member of the relationship is tortuously injured, the other party can recover for damages to their relational interests. a. This does not entail damages for loss of future economic gain, only for the loss of society, companionship, affection and sexual relations. i. This can include enjoyment from activities they previously participated in. b. Most courts allow for a spousal loss of consortium claim for tortuous injury to a spouse. i. Some have gotten rid of them. ii. Some have expanded to allow for unmarried cohabitants c. Few jurisdictions allow for loss of consortium of a childs society, companionship and affection to the parent. 3. Some courts say that loss of consortium cannot rise higher than the injury claim on which they are based; comparative fault is also applied a. However, some courts call this a separate claim and not affected by comparative fault, limits, or waiver. Notes on Prenatal Harms p. 544 1. Viability of a fetus the ability to sustain life outside the mother. 2. Mothers have a special relationship with a fetus such that, generally, a mothers duty of care does not extend to an unborn fetus. Others can be liable for injuries caused to fetuses (this rule recently came into being) a. Public policy issues at work here, such that a woman must be comfortable to do with her body as she wills. Cannot be continually on the hook for legal liability for working out or the like. 3. 3 Doctrines for Assigning Liability for Prenatal Harms a. Born-alive (generally post-WWII) If the child is born alive, even for a moment, then a tortfeasor will be liable for injuries against the fetus. Most courts allow for suits when a fetus is born alive. b. Viability If a fetus is viable at the time of the injury, a tortfeasor is liable for injury whether the fetus is born alive or not. Most courts also allow for suits in this case. c. Absolute standing A tortfeasor is liable for any injury, whether the fetus was ever viable or not. Most courts do not assign liability here. 4. What was the standard age for viability? 5. Wrongful Conception a. Where a doctor negligently performs a sterilization operation, such that a woman gets pregnant anyways. b. Possible damage mitigations i. Full recovery full child-rearing costs ii. Benefits rule child-rearing costs minus benefits received from child iii. No recovery no recovery allowed for wrongful conception. This is the most common (31 states) c. Even in cases of no recovery for child-rearing, many courts allow for costs associated with childbirth 6. Wrongful Birth a. The birth was wanted, but doctor or someone else negligently failed to diagnose a genetic issue with resulting physical harm to the fetus and economic and emotional harm to the parents. From the parents. b. Typically parents argue that they would have aborted had the defect been found. c. Many states now allow this type of state. 7. Wrongful Life a. Suit brought by child alleging that the life was an injury that he needs damages for. b. Brought by child c. Courts dont really sustain this, but there is arguable precedent.

Affirmative Defenses to Negligence

Mitigating Damages through Others Negligence Contributory Negligence 1. Requires contributory negligence jurisdiction 2. Any negligence on the part of the plaintiff will bar any recovery from defendant 3. Last clear chance doctrine when a defendant (tortfeasor) had the last clear chance to avoid the injuring incident and did or should have seen it, contributory negligence is not allowed.

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Discovered peril same thing, but requires that defendant actually did know of the plaintiffs peril

Comparative Negligence 1. Requires comparative negligence jurisdiction 2. Total damages for the injury will be reduced proportionally by the degree of culpability the plaintiff bears to the conduct that caused the damages. 3. Discuss restatement assigning responsibility not fault 4. Discuss both joint and several liability (beneficial to victim) and proportionate share liability (beneficial to negligent tortfeasor with more money) 5. Sometimes, comparative fault not used even in cases where both parties negligent a. Plaintiffs negligence must be actual or proximate cause of injury b. Was plaintiffs negligence a superseding cause? c. Public Policy protecting children, incentivizing companies to create safe products, conflicting w/other rights 6. Last clear chance and discovered peril doctrines dropped 7. Illegal activity by plaintiff will bar that person from recovering for a tort. Modified Comparative Negligence 1. Requires Modified Comparative Negligence jurisdiction (basically just Wisconsin) 2. Total damages for the injury will be reduced proportionally by the degree of culpability the plaintiff bears to the conduct that caused the damages AND if plaintiffs fault was greater than that of the defendant, no recovery is allowed. Policy considerations can preclude a defendant from using comparative or contributor negligence. 1. Protecting children from sexual predators 2. Incentivizing companies to create safe products 3. Conflicts with other rights (like property) Assumption of Risk 1. Express Waiver a. A defendant can be released of duty when the plaintiff has validly assumed the risks created by the defendant. i. Must be a validly entered contract (issues of consideration, etc.) ii. Must be valid on public policy grounds 1. One public policy ground, the releasing party must not be limited in its ability to voluntarily give consent. iii. Content of the waiver must be specific 1. A general release that is overly ambiguous will not be enforced. Courts typically require a high level of specificity. b. Most courts hold that an express waiver to reckless or intentional torts would offend public policy, and be invalid. 2. Implied assumed risk (Implied Waiver) a. A tacit consent is assumed when the plaintiff, knowing of the risk and appreciating its quality, voluntarily chooses to confront it paraphrasing Dobbs. b. Sports In terms of playing sports, players assume certain risks that are inherent to the sport itself. i. Authorities can still be liable if they increase that inherent risk or breach other duties of care. 3. Complete defense vs. Comparative Fault a. Traditionally, assumed risk was a defense that led to a complete bar from recovery. b. Now, many jurisdictions merge it with comparative negligence principals, only reducing the damages. c. However, if the defendant reasonably believes that the plaintiff accepted the risk, defendant may not be liable at all for relying on it d. Also, most contractual or express assumptions of risk will afford complete defense. e. California primary vs. secondary assumption of risk i. Primary defendant owes no legal duty to plaintiff full defense ii. Secondary defendant owes legal duty, but plaintiff encounters risk knowingly contributory negligence Statutes of Limitation Claims may not be field after the applicable statute of limitations has elapsed barring stale claims and permit reasonable planning for lawsuits. 1. In most jurisdictions, a statute of limitations will being counting once the claim has accrued, or when (a) all of the elements of the tort are present and (b) the plaintiff discovers, or reasonably should have discovered, both the injury and the defendants role in causing it. (some jurisdictions still accept old rule, which starts it at the injury)

2.

3. 4.

5.

6. 7. 8.

The association between the injury and the defendants role in causing it can be established by expert analysis (doctor) or others similarly situated. b. Other triggers include first exposure to risk, some last exposure and some termination of employment. Because someone typically cant be sued twice for same injury, an attorney must take into account latent potential harm in client and decide on strategy: a. Can sue for current damages, and retain right for later suit b. Sue for current and prospective damages now c. Sue for current damages, emotional stress and fear for future injuries. d. Etc e. If one is exposed to an injury but doesnt show symptoms (like toxins in small quantities), sometimes able to sue now for monitoring, and later for treatment if disease occurs. Similar to latent harm. Forgetting does not toll a statute of limitations Repression of memories based on traumatic events sometimes toll statute of limitations, sometimes gives to jury to decide a. Tolls for other disabilities (p. 302) minority, unsound mind to manage affairs b. Certain legislative grace periods also exist to replace tolling issues. Equitable Estoppel when a doctor or someone else commits affirmative action (such as an assurance) on which the injured party reasonably relies that prevents the injured party from making a timely claim, the doctor cannot use the statute of limitations as a defense. 1) Delay in filing an action induced by defendant 2) Defendant misled the plaintiff 3) Plaintiff acted on information in good faith to delay the filing in a timely manner. Must always start the statute of limitations within the statute of repose (maximum allowable limit after injury) a. Usually for providing protection for a certain group, such as doctors, manufacturers, etc. Keep notice requirements (as in required notice of action) in mind that may shorten statute of limitations. Continuing Intrusions v. Permanent Injuries a. If permanent injury (such as the placement of porous irrigation ditches), then defendants pay amount for current and future damage and move on. i. Can sue any time for full amount. b. If continuing intrusion, then new tort occurs every moment it is not corrected. i. Can sue at any time, but only for the duration of the statute of limitations.

a.

Medical Malpractice 1. 2. Form of Negligence, same elements. Differences with Standard of Care a. Standard of care established by professional standards i. Usually proven through expert testimony unless breach is so egregious or clear as to render it not necessary b. Reasonably Prudent Practitioner rule now utilized, where a physician must exercise degree of care, skill, and proficiencies exercised by prudent practitioners in the same class to which he belongs. (replaces modified locality rule) Note that specialists are held to independent, specialist standard of care Some jurisdictions have statutory protections for doctors assisting in emergencies a. Doctors must have no pre-existing doctor-patient relationship with patient. Res Ipsa Loquitur Medical Context a. Res Ipsa applies in medical context as well, but complications to medical procedures make it difficult for judges to know if an injury is the type usually caused by negligence therefore new rule states certain cases will survive summary judgment for presentation of such expert testimony. b. Wasnt always the case, used to require injuries to be clearly negligence without experts. c. Because so many injuries in medical context happen when victim is unconscious, special rules apply i. Summary judgment cannot be used against any of the physicians who had the patient in their care for any period of time during unconsciousnesss ii. Element of control can be fulfilled by proving that the injury was caused by ANY external force while injured party was unconscious. 1. This is because medical practitioners have responsibility of care for patient while unconscious. Apologies from the doctor to patient for mistakes can sometimes be used as evidence for a breach of the reasonable standard of care; some jurisdictions have barred this.

3. 4. 5.

6.

Informed Consent 1. Every competent adult has a right to forego treatment, or even cure, if it entails what for him are intolerable consequences or risks. 2. Materiality Test of Full Information - In order to facilitate this right, a physician owes to his patient the duty to disclose in a reasonable manner all information that is material to an intelligent decision by the patient whether to undergo a proposed procedure, as decided from the perspective of a layperson without medical training. a. Old rule was that a doctor needed to provide all information that is customarily disclosed by physicians in similar circumstances some jurisdictions still go with this rule. 3. Causation If injury occurs and the patient claims that the doctor did not supply adequate information, the injury must be of the kind that was negligently undisclosed by the doctor for there to be a legal remedy. If the actual injury wouldnt have been warned of anyway, then no remedy available. 4. Type of Information to be Disclosed A physicians duty of care is to furnish the patient with the relevant risks and consequences for a certain procedure as governed by standard in medical community. Other information including a doctors history isnt necessarily required voluntarily. But success rates and information that they could get better treatment elsewhere is required in some jurisdictions. Courts will likely pay attention to reasonable standards and public policy when making this decision. P. 370. 5. In certain cases where a patient declines risk-free procedures, a doctor may have a duty to make sure the patient understands the material risks involved. 6. Comparative fault can be applied in informed consent context, where lack of information was only partially to blame for injury. 7. In case of human subject research (where placebos and the like are used) the first purpose is safe research, not subject.

Nonfeasance
1. 2. 3. No general duty to rescue in US law a. Academics here and abroad generally view this is difficult to swallow seems shallow. Discuss distinction b/w nonfeasance and misfeasance Qualifications a. If a person knows, or has reason to know that their conduct caused harm to another, then they have a duty to assist to prevent future harm. b. If a person, even innocently, creates an unreasonable risk of harm, a duty of reasonable care arises to employ reasonable care to prevent the harm from occurring. c. If statute or ordinance insists, duty exists d. Once you start rendering aid, you have a duty to continue that aid and to do it with such competence and skill as one possesses. (Restatement 44) e. Special relationships create a duty of care: i. See p. 36 of outline ii. Podias v. Mairs court, trying to make these defendants liable, state relationships requiring a duty to aid may be created simply by the ability to help someone in danger. th iii. DeShaney v. Winnebago County Dept. of Social Services Custodial relationship not built by 14 Amendment providing due process of law Good Samaritan laws in some states either create a duty to aid or to

4.

Death
1. 2. 3. Cause of action historically did not survive a victims death; now we have initiated statutes for wrongful death and survival Who can sue is limited by statute, this generally limits stepchildren and unmarried cohabitants Wrongful Death a. Suit brought by beneficiaries and heirs b. Money goes straight to heirs c. Involves funeral expenses and others. Different ways to measure: i. Loss to survivors Loss of support to defendants ii. Loss to estate The individuals projected lifetime savings iii. Some courts combine these two now. iv. Non-pecuniary damages sometimes also included: 1. Punitive damages 2. Mental anguish 3. Loss of consortium d. Children and others can sue for their own emotional distress, but not the distress of the victim. e. Common law barred recovery for beneficiaries who were contributorily negligent to the victims death i. Under comparative fault regimes, courts usually just apply the percentage of fault to reduce the damages of the defendant. Survival a. Suit brought by estate of the decedent, the personal representative of the estate b. Money goes to estate, subject to estate taxes, existing debts, etc. c. Estates can bring other tort suits that are still active for the decedent; also can bring suits against the estates of dead people d. Damages include: i. Medical expenses before death ii. Loss of wages until death iii. Pain and suffering before death iv. Punitive damages v. Sometimes Loss of Life or the value the decedent would have placed on his own life. e. Comparative negligence of a beneficiary doesnt matter, as a survival claim works as if the decedent was bringin g a suit themselves.

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Vicarious Liability
1. Doctrine of Respondeat Superior - Employers are strictly liable for the actions of their employees acting within the scope of the employers business. a. No matter how hard the employer tries to keep its employees from committing these torts, they are still liable for them. b. Goals i. Prevention of future injuries ii. Assurance of compensation to victims iii. Equitable spreading of losses caused by the business c. Older theory was based on Control whereas the employer was controlling the employee. d. Now, based on Enterprise Liability i. If business is participating in the benefits, should also pay for the risks ii. Distribution of risk business is the best place to distribute the risk and damages among the people participating Unpaid people may be considered servants of an employer if the church expects that person to act on its behalf and submitting to directions Sexual torts will not be considered within the scope of an employers business unless job conditions motivate such emotions a. In certain relationships (boy scout leaders, priests) employers will be vicariously liable for sexual or intentional torts. Sometimes when relationships are borderline, it will be a question for the jury to decide. Going & Coming Exception a. An employer is not generally strictly liable for the actions of the employee while he is coming or going to work, except when: i. There is more than an incidental benefit to the employer by the commute 1. This has been liberally construed in certain cases Hinman v. Westinghouse Electric 2. Sometimes exhibited by payment for travel times ii. There is special hazards to the commute 1. Distance alone is not a hazard. iii. There is a dual purpose to the commute, such that employee is also performing a concurrent service for the employee that would have necessitated another employee making the trip. Frolic & Detour a. If an employee is merely taking a slight deviation from the scope of employers work (a detour), the employer is stil liable for the employees negligent acts. However a significant d eparture from the scope of work (a frolic) will removed the employer from strict liability. Temporally and spacially. i. Smoking cigarettes detour ii. If its personal business, as long as hes also doing work stuff, its a detour. Independent Contractor Exception a. Employers are not generally strictly liable for the actions of independent contractors i. Factors in deciding ICs ii. Lack of control over details and methods of work (not goals or ends) iii. ICs own tools or skills, business, skills. b. Exceptions i. Nondelegable duty doctrine p. 588 1. When duties are imposed on the employer that arise out of the work itself because its performance creates dangers to others, there is a nondelegable duty. 2. Such as inherently dangerous duties or cases of a peculiar risk 3. Statutes also create nondelegable duties when they create a responsibility for one to provide safety protections for others 4. Maintaining the safety of land open to public business (security guards) ii. Principal of Apparent Agency 1. Estoppel for agency Hiring of incompetent contracts is also an exemption, but more of a negligence issue, but requires: a. IC was in fact incompetent or unskilled ot perform the job for which they were hired; and b. Principal knew or should have known of the incompetence

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Product Defect
1. Evolution of Rule a. Privity Requirement all product liability claims be between parties of a contract b. Requirement eroded, replaced with foreseeability by Cardozo c. This covers consumers when they rely on representations of a manufacturer d. Express or implied warranties to retailers from manufacturers are strict liability; when a warranty is broken, manufacturer is liable i. Since warranties were contractual, they were also bound by privity ii. This eroded later in a later decision e. Going to strict liability why? i. Enterprise liability f. After the drafting of Restatement (Second), 402A controlled see p 45 of outline i. Sellers are strictly liable for physical injuries to persons or property other than product itself. ii. Privity rules abolished. iii. Strict liability for defective products because unreasonably dangerous iv. Consumer's reasonable expectations define what counted as a defective product. Economic Loss Rule Where only the defective product is damaged, strict liability will not be applied, and the plaintiff must recover under contract or warranty. Strict liability is for damages involving separate property or personal injury. Manufacturing Defect a. Elements i. Product was in a defective condition and unreasonably dangerous for its intended use. ii. Such defect existed when the product left defendants control. iii. Defect was the proximate cause of the injury sustained b. Tests for defective condition i. Consumer Expectation Test (Good!) 1. Was the produce dangerous beyond the contemplation of a reasonable consumer? 2. Restatement (Second); used in most courts ii. Products Liability Test (Not so Good!) 1. A product contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product 2. Restatement (Third); not used much iii. Foreign-Natural Doctrine (Bad!) 1. Strict liability claims will not be allowed for defects involving the presence of naturally occurring irregularities Design Defects a. More like negligence b. Tests of design defects i. Consumer Expectation 1. Was the produce dangerous beyond the contemplation of a reasonable consumer? 2. Restatement (Second); largely replaced by Risk-Utility ii. Risk-Utility Test 1. A product design is defective when: a. It Is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner; or b. The benefits of the challenged designed do not outweigh the risk inherent in the design 2. Used in most courts, sometimes in conjunction with Consumer Expectation test 3. Some courts shift the burden to the defendant; when injury alleged and plaintiff shows that the product failed to perform as expected, then defendant must prove that utility outweighs risks in the design. c. Reasonable Alternative Design Corollary (RAD) Some courts apply this requirement for parties claiming design defect i. There was a safer alternative ii. The safer alternative would have prevented or significantly reduced the risk of injury without impairing the products utility iii. The safer alternative was both technologically and economically feasible when the product left control of the manufacturer. iv. Only used with Risk-Utility Test, not in cases where the courts still allow consumer expectation

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Inherently dangerous items if the primary function of the product in question is to be dangerous, then a plaintiff cannot claim that the product is unreasonably dangerous for its intended use. e. Sometimes, items are manifestly dangerous with no alternative design (dangerous toy guns), such that no reasonable alternative design is necessary to prove design defect. (Negligible utility) Information Defects a. A product has an information defect when it has a clear danger that could have been avoided by the use of a warning. b. Warnings serve two purposes: i. To warn of danger in connection with using it ii. To inform of safer ways to use it c. Obvious Dangers No duty to warn of dangers that should be obvious; if no duty found, no recovery available i. Codified in some states using reasonable person standard ii. Possible defense to information defect claims under comparative fault regimes d. Injury must be type of injury designed to be protected from by the warning i. Some courts require proof that the Plaintiff would have read and appreciated the warning ii. Other courts assume that Plaintiff would have done so e. Burden-shifting: p. 675, 11 f. Warnings must be given sufficient force and clarity proportional to the nature and extent of the risks involved g. Learned Intermediaries (in prescription drug context) physicians who are learned enough to convey the proper warning information to consumers in terms they understand. i. Manufacturers can properly rely on them to convey applicable risks ii. Must provide information to learned intermediaries, still iii. In direct marketing of drugs, many courts are now requiring that all warnings are posted by manufacturer 1. Restatement When a manufacturer knows or has reason to know that the learned intermediary will not be in a position to reduce the risks of harm h. Sophisticated Users - Similar rules apply i. Post-Sale Warnings Restatement PL Section 10 i. A manufacturer has a duty to warn those who previously purchased their products of defects that existed when the product was created, even when those defects are discovered after the sale; standard for warning is reasonableness. ii. Generally, before there can be any continuing duty to warn, repair or recall, there must be a defect or an actionable problem at the point of manufacture.

d.

Defenses to Product Defect Claims Comparative Fault Assumed Risk Unforeseeable Use