Torts Final Outline

Intentional Torts

Battery: Intentional use of force against a person that results in harmful or offensive contact. This need
not be direct bodily contact. (Such contact can include blowing tobacco smoke.)

-Offensive contact must be offensive to a reasonable person’s sense of dignity.

-Wrongdoer may be liable for all injuries resulting from the unlawful act, even if they were unforeseen at
the time of the act.

Transferred intent: Battery or assault can be committed on a third party even if the third party was not
the original target of attack. The actors’ intent to batter can be transferred to the third party without their
foreseeing it.
-If the act causing the injury was unlawful, the intent is also considered wrongful.

- Self-preservation is the first law of nature. An injury inflicted on another for self-preservation is not
battery. (Laidlaw v. Sage.)

-Physician must have patient’s consent in order to operate or treat patient. Patient has right to refuse
medical treatment.

-Someone who expressed his willingness to suffer a certain invasion has no right to sue if someone else
acts on that given consent.

Trespass: To enter upon another’s land without consent. It involves interference with the ownership or
possession of land. Protects right to owner’s exclusive possession of property.

Conversion: Intentional exercise of control over a chattel which interferes with the owner’s control such
that the actor may be required to pay for the full value of the chattel.

-Refusal to deliver a chattel without legal excuse also constitutes conversion.

Rule: If a person wrongfully takes ownership or dominion over another’s property because of a mistaken
view of his rights, this counts as conversion.

Defense of Person and Property: There is no privilege to use deadly force or cause serious bodily injury
to a trespasser or thief, unless the owner’s personal safety is threatened so as to justify self-defense.
Spring-guns are not justifiable against a trespasser or petty thief.

-Use of force can only become necessary as a last resort. Restatement S. 63

Rule: For more serious felonies (not minor thefts) such as robbery, the use of firearms may be justified
for self-defense and resisting robbery.

Private Necessity: Defendant is not liable for trespass or conversion if he has no alternative but to do so
in order to preserve his life. Private involves only the D’s personal safety.
Rule: Defendant may take and use private property to save himself, but must compensate the plaintiff for
its value once he is able to. Vincent v. Lake Erie Trans.

Public Necessity: Person may commit trespass or conversion if he reasonably believes it is necessary to
remove a danger to the public. Completely excuses the D.

Negligence
-4 elements: duty of care, negligence according to reasonable person standard, causation of injury, and
injury must be cognizable.

Reasonable Person standard: Objective measure of ordinary intelligence, common sense, not taking
unnecessary risks. Everyone held to same standard.

-If a person has a distinct defect that makes certain precautions impossible, he cannot be held liable for
not taking those precautions.

-Children are held to an adult standard when they engage in activity that’s dangerous to others and
normally done only by adults.

Risk and Precaution: Cost-benefit analysis of Hand Formula. N = when Probability x Liability >
Burden on defendant.
-Richard Wright’s criticism: In aggregate utility test, it is permissible to value private gain over safety of
others if private gain outweighs that risk.

-Risking one’s life to save another human life is not negligence, b/c the law strongly values human life.

Custom: Even if a certain precaution is not a custom in the industry, this doesn’t free a defendant from
negligence if the injury was easily avoidable. The T. J. Hooper.

-Customary practice isn’t a strong defense for negligence. Standard of due care is how a reasonable
person would act to ensure safety.

Medical Malpractice: Custom is important, but the standard is national rather than local. Proper
standard is whether the physician has exercised the degree of care and skill of an average qualified doctor,
taking into account advances in the profession. Brune v. Belinkoff.

Modified locality rule: Physicians in small towns cannot always have the same facilities available in
larger cities. Modified locality standard compares similarity of medical facilities, practices, and
advantages, not just localities. Gambill v. Stroud.

Negligence per se: Negligence established as a matter of law, where breach of duty isn’t a jury question.
It usually involves a statutory violation.

-Class of persons that the statute intended to protect is important for determining negligence.

-Underlying principle of a statute is more important than the exact letter of the law. Person will not be
penalized for following the principle even if violating the exact words. Tedla v. Ellman.

Res ipsa loquitur: Negligence arising from an injury that points to the defendant based on the situation
itself, prima facie.
-Plaintiff does not have enough facts about cause of negligence, and burden is not on him to show
negligence. In RIL cases, burden of proof falls on defendant.

RIL Test: (1) the accident must be something that does not ordinarily occur without negligence. (2) It
must be caused by an agency exclusively controlled by the defendant. (3) It must not have been caused by
any contributory action by the plaintiff.

-Where a plaintiff receives strange injuries while unconscious during medical treatment, all defendants
who had any control over his body or instruments which could cause injury may be liable for negligence.

Duties and Limitations: A defendant must owe a duty of care toward the plaintiff in order for the
plaintiff to be granted recovery for an injury caused by defendant.
-Defendant can’t be held liable for simply doing nothing, even if that harms the plaintiff.

-If an actor does an act and then realizes he created an unreasonable risk of physically harming another,
he has a duty to practice reasonable care to prevent the risk from taking effect.

-Where a person is attempting rescue (even gratuitously), he has an obligation not to injure the other
person by negligent performance of his task.

Special Relationships: Where there’s a special relationship, the defendant has a duty of care towards a
plaintiff and may need to restrain a third person from harming P.

-A physician must disclose his patient’s confidential information if it is necessary to protect the safety of
an individual in danger, or protect the community.

-A landlord has a duty to provide safety for its tenants if they can’t fully protect themselves because they
submitted to the landlord’s control.

Licensee Rule: A property owner is liable for physical harm to social guests which is caused by hidden
dangerous conditions only if he’s aware of those conditions and fails to give his guests warning.

Invitee Rule: Property owner owes a duty to exercise reasonable care for the safety of business invitees.
An invitee is also someone who materially benefits the property owner.

Privity Limitation: Relationship between parties to a contract that allows them to sue each other but
prevents a third party from doing so.

- If a defendant’s actions through a contract directly affects a third party which is not an indeterminate
class of persons, then the defendant may be liable for harm resulting to the third party.

- A defendant’s liability towards a third party not in privity is determined by: extent to which transaction
was meant to affect the plaintiff, foreseeability of harm, amount of certainty that P suffered injury, moral
blame of D’s action, closeness of connection, and policy of preventing future harm.

Economic Loss Doctrine: A plaintiff can recover against a defendant for physical injury or property
damages, but not for pure economic losses caused by negligence.
Economic loss means lost profits or expenses.

-Fishermen are entitled to recover economic losses when their boats are negligently impaired because
their livelihood is dependent on the ship’s integrity.
Negligent Infliction of Emotional Distress: A plaintiff can recover for emotional distress if she was in
the immediate zone of danger during the accident and if she suffers physical effects from the emotional
pain.

-Dillon Test for witness’s liability from distress: (1) plaintiff must be closely related to the accident
victim; (2) P must be present and witness the injury; and (3) P must have suffered serious emotional
distress.

But-for Causation: A cause without which the accident would not have taken place.
Traditional rule: In order to recover damages, a plaintiff must prove that a precaution the defendant failed
to take would more likely than not (more than 50% likely) have prevented the plaintiff’s injuries.

Lost Chance Theory: If a defendant’s negligence deprives a patient of a strong chance to survive or
recover from illness, then the defendant is liable for the lost chance. The likelihood of recovery if
precaution had been taken doesn’t need to be more than 50%.

Alternative Liability: When multiple defendants are negligent but only one of them caused injury, the
burden of proof is on defendants to show non-liability. Plaintiff isn’t required to identify exact source of
injury. Each defendant is liable for the entire damage whether they acted together or independently.

Market Share Liability: Where a plaintiff sues multiple negligent defendants and does not know which
actually caused injury, each manufacturer is responsible for injuries equivalent to the market share of its
products.

Proximate Causation: Cause that directly produces an event, and without which the accident wouldn’t
have taken place.
-Liability is not limited by whether or not the results were reasonably foreseeable, if the damage directly
resulted from the accident. Damage should be related to the D’s risk. Petition of Kinsman Transit Co.

-If defendant is liable for another’s injury, he may also be liable for any additional injuries caused by a
third party’s efforts in providing help, regardless of third party’s negligence.

Intervening Cause: Third person who intentionally injures P is an intervening cause of harm (D wouldn’t
be liable for those injuries) unless D could reasonably foresee the injury.

-If a third person was not acting as a free agent in causing injury, the negligent defendant may be liable
for creating the risk.

Limitation of Duty: There can only be negligence when the defendant specifically owes the plaintiff a
legal duty of care. Negligence exists in relation to others. For a finding of negligence, someone must
have committed a wrong against another party and violated that party’s right.

Damages: Main rule for property damage is that plaintiff should be compensated for the market value of
the property that was damaged or destroyed; the replacement cost.

Lost Earnings: When plaintiff receives damages for future lost earnings, the money amount is discounted
to their present value. The money will grow to the correct amount when it is due if the plaintiff invests it
safely.

Pain/Distress: The plaintiff’s age and life expectancy influence the amount of compensation he could
receive for pain and emotional suffering. Socioeconomic and other personal factors can also be relevant.
-A person can sue for the mental suffering of humiliation that may result from bodily injury,
imprisonment, defamation, marital problems, or destruction of property.

-Hedonic damages: Compensation to a plaintiff for loss of essential pleasures of life.

-There’s no clear standard. Court is likely to grant damages for physical disfigurement or loss of basic
senses such as sight, sound, smell, and taste.

Punitive Damages: Damages meant to punish a torfeasor and deter him from causing similar injuries in
the future, and also deter similar actors from wrongdoing.

- Punitive damages should not be so small that the defendant could easily absorb the cost, or be so large
that it would bankrupt the defendant. Damages should be balanced.

Pure Comparative Negligence: Plaintiff’s damages are measured according to his percentage of
negligence for injuries. Even if P is 90% negligent, he can recoup 10% of damages.

-Plaintiff cannot recover damages (even if D was negligent) if he seriously violated the law and his
injuries were the direct result of the unlawful action.

Defenses

Express Assumption of Risk: Plaintiff who expressly agrees to accept a risk of harm resulting from
defendant’s negligence cannot recover for injuries unless the contract went against public policy.

-Plaintiff cannot agree to assume risk of a contract if this goes against “public interest”. This applies to
hospitals, for example.

Primary Assumption of Risk: Plaintiffs generally cannot recover for injuries they suffer from a
voluntary dangerous activity they undertake.

-A person doesn’t assume the risk when he relies on defendant’s promise of safety and D fails to uphold
promise, unless danger is so extreme that promise wasn’t reliable.