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Intentional Torts
Battery
Elements: 1) Intent to touch, 2) touch is offensive/harmful, 3) no consent, 4) touch*
Policy: dont do it activity levels
Trespass
Elements: Intentionally 1) enters land or causes another thing to enter or 2) remains on the land or 3) fails to remove from
land a thing which is his duty to remove
deluded by concepts of privilege (journalists don't have privilege) and implied consent
Policy: balance property interests v. public interests (investigative journalism)
Conversion
Elements: Intentionally 1) dispossesses other of chattel or 2) using or intermeddling with a chattel in the possession of
another
Liability to the person: 1) dispossess of the other or 2) property is impaired as to its condition, quality or value or 3)
possessor is deprived of use of property for substantial time or 4) bodily harm is caused to the possessor, or harm is
caused to some other person or thing the possessor has an interest in.
False Imprisonment
Elements: 1) intends to confine 2) act directly or indirectly results in confinements 3) other is conscious of confinement or
harmed by it
when not done with the intention, not responsible for transitory or harmless confinement
confinement is 1) fixed boundaries, 2) lack of knowledge of way to escape
confinement is actual or apparent physical barriers (cripple w/o crutches)
shoplifter exception wrong?
Defense of Person and Property
Proportionality of force > notice (Katko v. Briney)
reasonable and no alternatives of less force
Private Necessity
Emergencies
reasonably make use of peoples stuff (if public place) but must pay
Policy: WWSOD, making people pay doesnt disincentivize potentially public goods (e.g., dock)
Public Necessity
1) public necessity must exist 2) if you have choice on what to destroy, you have to pay for it (if not choice, you may not
have to pay but there is a court split)

Rule of Negligence
1. Negligence Standard
a. What would a Reasonable Person do?
b. Hand Formula: b<pL

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Negligence System
Custom and Medical Malpractice
custom can be a sword and shield
if whole industry lags, some courts will still apply Hand Formula to say youre liable (TJ Hooper)
Locality rule (med malpractice)
Policy: worried about deterring doctors from living/working in places of need
Statutes - Negligence Per Se
Violating purpose of law
Policy: giving effect to the legislatures judgment of conduct
Other Presumptions - Judge-Made Rules
Cycling rules v. standards issue
Res Ipsa loquitur
Elements: 1) accident, 2) exclusive control by D, 3) ordinary course of events the accidents wouldn't have occurred.
Information forcing - burden shifting - prevent pocket of immunity
Important aspect that someone might not have the information!
Policy: lowers administrative costs, less room for Ds to lie or withhold
Duty
Rescue and Relationships
Affirmative acts - sth you do increases the risk of causing harm
Can I use your phone cases - turns on public and private distinction
Rescue - single best rescuer, cant undertake and put person in worse position than before, don't want to deter other people
from rescuing [who is the best problem solver?]
Relationship Through Land
trespasser: no traps! Cant shoot at people.
licensee: reveal all threats
need less law than invitees here because youre typically friends with the person (aka invitees)
invitees: essentially the same as licensees, but have duty to inspect, warn, and control 3rd parties
CA rule (Rowlands) which eliminated this: 1)foreseeability of harm; 2) closeness of the connection between plaintiffs
harm and defendants conduct; 3) moral blame attached to conduct
Privity
foreseeability
3rd party must be anticipated and intended party of the transaction (Tarasoff case)
Strict Liability
Animals
ferae naturae
one bite rule
socially useful activities
Rylands
when you bring sth onto land for your own benefit and you dont maintain control and damages anothers land then youre
SL
ordinary and reasonable use of the land is okay (reciprocity)
Policy: Information forcing rule (warn neighbors to take precautions); internalize the cost

3. Abnormally Dangerous Activities

a. Elements: 1) foreseeable and significant risk of harm 2) even when reasonable care is exercised by all actors and 3) not a
matter of common usage

i.

explosives, chemicals
b. Policy: to lower activity levels, evidence, non-reciprocal risk (fully internalize cost), information forcing

4. Vicarious Liability (Respondeat Superior)

a. Liable for negligence always but not SL.
i.
only SL if going to motive to help employer or its foreseeable
b. Independent Contractor v. Employee: 1) extent of control*, 2) whether worker engaged in distinct occupation, 3) locality,
4) skills required, 5) supply instruments, 6) length of employment, 7) method of payment (time v by job), 8) regular
business of employer, 9) what do the parties think theyre doing, is the principle in business
c. Policy: gives employers incentives to take care, affects activity levels of employers, loss-spreading
d. Punitive damages NL unless: 1) principal authorized 2) worker was unfit and employer was reckless in hiring him 3)
managerial capacity + working in scope of employment 4) principal or manager ratified or approved the act [Exxon case
drunk manager on boat!]
e. Scope of Employment: Purpose Test and Foreseeable-Risk Test

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Defenses and Multiple Wrongdoers

Varieties of Assumption of Risk
Express - signing stuff away - you have to specifically sign it away (unless monopoly problem) (PARACHUTE CASE)
Primary - no duty, freely chose to undertake risk that was apparent (FLOPPER CASE)
Secondary - have duty, but choosing to waive the duty (BAR FIGHT CASE)

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Causation in Fact
But-for Causation
Finding cause where there is none: Herskowitz and Lone Palm Hotel
Not Finding cause where there is cause: when Grimstad works against plaintiff; STACY CASE,
Policy: recurring misses
Joint and Several Liability
if both are negligent, then L. but if one is negligent and the other isnt, then NL. (Summers v. Tice)
Market Share Liability and Contribution + Apportionment
Fungible products
Policy: decreases decision and error costs; worried about risk creation

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Proximate Causation LOTS OF WIGGLE ROOM IF I PUT L ON THIS PARTY, WILL THE SOCIAL OUTCOME
BE BETTER? THAT IS THE REAL QUESTION JUDGES BE JUDGING!!!
Remoteness and foreseeability
Intervening Causes
Limitation of Duty
Pure Economic Loss
Negligent Infliction of Emotional Distress

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Products Liability
Historical Development of Product Liability
Rationale for current rule is manufacturers are in the best positions to make their own products safe
Difficult for plaintiffs to prove
Force retailers to buy from reputable manufacturers
Deep pockets, spreading costs
Gives manufacturers the biggest incentives
Cons
Cross subsidy problem - less incentive to take care (consumers) + buying insurance (incr. price)
Manufacturing Defects
Elements: 1) injured, 2) injury result of defect, 3) using the product in the way intended
Design Defects
Risk utility balancing - alternative design that would pass risk utility

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Fact finders are not sophisticated parties to fully understand bPL

Plaintiffs are in difficult position to come up with better alternative design
Consumer expectations (minority)
possibility for less innovation
Campo test - open and obvious (lurking)
Failure to Warn
Dont have to warn if its obvious, micromort
heeding presumption - rebuttable presumption
Damages
Damages to Property
Objective rather than subjective value
If no objective - how much would it cost you to produce (labor costs)
Duty to take reasonable steps to mitigate, but D must pay
Damages offset in cases where youre giving a benefit through the same act (e.g. surgeon who neg. destroys organ to
make improvements to bodily function)
Lost earnings
Net present value of expected future earnings
Loss to society
Policy: optimal deterrence on the part of D, moral hazard problem (dont want to be worth more dead than alive), courts
don't take into opportunity costs (hard to determine, easy to exaggerate)
Pain and Suffering - Emotional Damages
If you have physical evidence, stronger case for NIED
Family members only; see it live (not on TV)
Policy:
Hedonic Damages
Speculative issue - if you dont have a proof problem then more likely to recover
Punitive Damages
Deterrence
Work hand in hand with crim law
Market transactions - most times compensatory damages is undervalued (b/c subjective value is non recoverable), forced
transaction at a price they wouldn't accept in marketplace
express communitys abhorrence
when torts are hard to detect (if there is low likelihood that D will get caught, punitive damages might be higher)
Nuisance
Basic Case
Ordinary land use is acceptable
If not ordinary SL vs. cost-benefit analysis
SL: incorporate all of their costs otherwise they will overproduce
CB: net positive for society, so dont pay
Coming to the Nuisance
Old rule: right of first possession
Modern rule: Community standards
land to highest and best use
allows formation of cities
Sensitivity and Spite
Not allowed to be spiteful, theres no useful activity
You have to show pure spite, this is hard to prove because of evidentiary problems
Remedies

General themes
1. Strict Liability
2. Life>Stuff
3. Decision costs and error costs

Trying to achieve the smallest costs of accidents to society

optimal accident rate (not zero)
generally theres an inverse relationship between decision and error costs
SL generally is that inverse relationship (create some errors in exchange for lower decision costs)
Res Ipsa Loquitur
pockets of immunity eg haft, herkovitz (error costs of systematic over and under deterrence)
comparative negligence (inverse of decision/error costs)
market share liability (decreasing both error costs - no more pocket of immunity -- but also decreasing admin costs b/c not
finding out who made the product, but also leads to judicial economy because youre covering cost of people coming
forward later with same harm)
Decisions costs

Error costs

1. trying to achieve the smallest cost of accidents to

society
Judges time and money (judicial system)
Litigation time and money

How likely you are going to get the right

outcome
Judges having one person, not an expert,
evaluate is that really a good idea? ESP for
products liability
Juries even more skeptical of high error costs
because theyre just random people off the street.

Rule of Negligence
If information is perfect, you get same amount of deterrence under both regimes
Negligence
1. makes it harder to bring case (expenses/time relates to pt. 3)
2. may lead to less cases overall
3. distributional problem (less poor people
bringing cases than rich people)

SL reduce activity level when due care is

insufficient to significantly reduce accidents.
2. leads to more cases generally
2. but more frivolous suits (-)
3. individual suits are cheaper (+)
leads to more settlements

Decision costs increase

- takes more time/money to determine
whether someone is negligent or not.
- Court costs + litigation costs (for both
parties)

4. person doing the act is better to assess the

risk than the court (+)

Error costs decrease

- but maybe not: juries are stupid!

5. takes two to tort issue

6. risk of overdeterrence (-)

affects newer technologies that want to enter

market
7. risk of unknown harms (-)
Decision costs decrease (?)
- less admin costs/case, but # cases increases
Error costs increase

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Comparative vs. Contributory Negligence

Pros of Comparative negligence:
More fair outcome (e.g., drunk driver runs over jay-walker or mindless pedestrian)
relieves avenues for serious tort offenders to get off scott-free (partial pocket of immunity)
Cons of Comparative Negligence:
More costly decision costs increase
More capricious (juries all over the place in terms of assigning percentages)
Distributional aspect (rich people can afford better lawyers)

Ideas for Tort System Reform

Products Liability
Removing the tort system for alternative designs
alternative schemes that can handle these pressures
Different rules for manufacturers of new tech.
Introducing comparative fault for Ds to get NL? (Daly vs. Melia arguments)
Gore
Cap on Punitive Damages = Dumb
Public Necessity
Admiralty rule should apply everywhere
Finding Rescuers Liable for their Negligent Treatment
Pocket of immunity problem
Katko
Spring Gun
We have the criminal system, punitive damages
Pre-Impact Fright
a.
Benyon case turns on evidence (skid marks) so in cases where theres no evidence
then injured/dead person doesnt recover? Seems arbitrary!
Coming to the Nuisance Defense
a. Cost of existing nuisances already baked into cost of land? Double recovery?
8. Market share Liability
fungibility might incentivize drug companies to tweak drugs slightly to argue non-fungibility (where in fact it really is
escape liability)

b. using exculpatory evidence (Sindell allowed) this would defeat the purpose of MSL (which is for companies to
internalize their proportion of the costs of harm)
c. why dont we expand this to other markets? Guns? Paint?
d. Disincentivize companies to take cost effective precautions? Only targets major companies, not all companies [pocket of
immunity for small companies] seems to be somewhat arbitrary (but maybe not Blums law!)
9.
Shoplifter exception in False Imprisonment?
a. Why not just make it a SL regime if the person is NOT a shoplifter? This would allow shopkeepers to use imprisonment,
but only if they are certain. Less arbitrary/mistake accidents.

I.

General
a. Purposes of the Tort System
i. Deterrence
1. Private enforcement not central control
2. Higher error and decision costs for central control
ii. Compensation
1. Restore status quo (corrective justice)
iii. Loss Spreading
1. Assign liability to party most able to pay (deep pockets)
2. Raise social insurance costs
b. Key Considerations
i. Unlimited liability for intentional torts (reduce activity level!!)
1. Vosburg v. Putney
2. White v. University of Idaho
ii. Background risks may reduce liability
1. Knight v. Jewett
2. Gambill v. Stroud
iii. Information Forcing Rules
1. Grabowski v. Quigley (battery, ghost surgery, L)
2. Brzoska v. Olson (battery, no-HIV preference, doctrol, NL)
3. Marghartia (Neg, pain for sailors lost leg, NL)
4. Byrne (barrel falling case, info. asymmetry, L)
5. Ybarra v. Spangard (RIL, multiple docs and nurses unknown who was negligent, L)
6. Madsen (SL, dynamite + mother mink idiosyncracy, NL)
7. Konradi (VL, post office trucks, L)
8. Fox farm case (nuisance case, shooting to annoy fox farm, L b/c no social utility in
shooting for spite)
iv. Negligence and Hand Formula negligence standard establishes number of socially optimal
accidents, impose L to deter individuals from falling below that standard

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1. Carrol Towing (negligently tied boat, broke free precautions taken ex ante + this
activity led to injury = negligence)
Assign liability rules to minimize transaction costs
1. Desnick v. ABC (trespass, undercover expose, default rule)
2. Ploof v. Putnam (private necessity, ship + dock, identify trading partners)
3. Rodi Yachts v. National Marine (custom, bargaining towards due car, NL)
Ex ante bargains/WWOSD
1. Restaurant critic (trespass, hidden identity, NL)
2. Vincent v. Lake Erie (private necessity, ship+dock, NL)
3. Kershaw v. Mcknown (relative value of goat and dog, single owner, NL)
Reciprocal Risk
1. Surocco v. Geary (public necessity, fire, NL)
Identifying plaintiffs and allocating harm
1. Lawson v. Management Associates (NIED, plane into dealership, NL)
Recurring miss cases
1. Lubin v. Iowa City (custom, water pipes + city, SL)
2. Gardner v. National Bulk Carriers (fall overboard ship + doesnt look, incentivize ship
capt to look, L)
3. Haft v. Lone Palm Hotel (no sign, never pass POE standard, sign is not costly, L)
4. Herkowitz (loss of chance, not able to prove beyond POE, dont want doctors to be neg,
L)
5. BMW v. Gore (punitive damages case, prob. of detection quite low, NL maybe should
be L).
6. Siegler v. Kuhlman (gasoline truck on highway, SL evidence is destroyed in fire)
7. Photoshop losing a roll of film (if NL, then no incentives for shop to take care)
8. Moskovitz v. Mt. Sinai (doctor fake med. records to cover up mistake, fear of POI, L)
Rylands SL list (SL reduce activity levels WHEN DUE CARE IS INSUFFICIENT TO
ELIMINATE ACCIDENTS!!
1. Water in underground mines (Rylands)
2. Wandering cattle (neighboring cattle ranchers either SL or NL)
3. Poisonous plants (Crowhurst)
4. Wild animals (ferae naturae) that escape (Behrens)
5. Transporting gasoline by truck (Siegler)