Professional Documents
Culture Documents
I. Battery
Definition - An actor is subject to liability to another for battery if
he acts intending to cause a harmful or offensive contact with the
person of the other or a third person, or cause an imminent apprehension
of such contact, and a harmful contact with the person of the other
directly or indirectly results.
1. Intent
Definition - The actor desires to cause the consequences of his
act, or that he believes that the consequences are substantially certain
to result from the act.
- Case on Point - Garratt v. Dailey
2. Contact
Tortfeasor need not make direct contact with the plaintiff. It is
enough to make contact with plaintiff's clothing, walking stick, horse
on which he/she is sitting, car he/she is riding, etc.
B. Exceptions:
1. Privilege
Definition - Conduct which, under ordinary circumstances, would
subject the actor to liability, under particular circumstances does not
subject him to liability.
Privilege may be based on the consent of the person affected by
the actor's conduct with the following restrictions:
2. Self- Defense
II. Cause-In-Fact
Definition - Did the defendant's conduct in fact cause the plaintiff's
harm?
A. Probability
B. Circumstantial evidence
-Plaintiff must be certain at the time of the accident that the
particular hazard is the cause-in-fact of the accident. Just because a
hazard exists doesn't make it the cause-in-fact in hindsight.
-Case On Point - Cuthbert v. City of Philadelphia
A. Masters
B. Servant
C. Independent Contractors
-Master's are not liable for the torts of independent contractors.
IV. Damages
-Three types:
A. Compensatory Damages
-Definition - The amount of money necessary to restore the plaintiff
to his pre-injury condition.
Note: Excessive compensatory damages awards may be reversed on
appeal.
1. Personal Injury
a. Medical Expenses
2. Criteria
- So long as the evidence is that more probably than not
(better than 50-50) the plaintiff's injury will be permanent, the jury
may award damages on the assumption that it will be.
2. Wrongful death
- Two types of compensation:
B. Punitive Damages
- Purpose is to punish defendant for intentional tort or gross
negligence, to deter others from engaging in that type of conduct and to
encourage plaintiff's to sue when compensatory damages are likely to be
minimal.
C. Nominal Damages
- Defendant is guilty but no real damages awarded (i.e. $1 award)
D. Indemnification v. Contribution
V. Liability Insurance
VI. Negligence
Definition - A person is guilty of negligence when he/she acts or fails
to act otherwise than an ordinary person would under similar
circumstances.
-Case on Point - Brown v. Kendall
4. But/For test - But for the actions of the plaintiff did the tort
occur.
A. The social value which the law attaches to the interest which
is to be advanced or protected by the conduct.
A. The social value which the law attaches to the interests which
are imperiled.
B. The extent of the chance that the actor's conduct will cause an
invasion of any interest of the other or of one of a class of which the
other is a member.
C. The extent of the harm likely to be caused by the interests
imperiled.
D. The number of persons whose interests are likely to be invaded
if the risks takes effect in harm.
8. Law-Fact Distinction
-The determination of the applicable general standard of care is one
of law for the judge and the determination of negligence is a question
of fact for the jury.
11. Custom
- Exeptions -
1. The Condition -
i. Is one which the possessor has created or
maintains.
AND
ii. Is, to his/her knowledge, likely to cause death or
serious bodily harm to such trespassers.
AND
iii. Is of such a nature that he has reason to believe
that such trespassers will not discover it.
AND
2. The possessor has failed to exercise reasonable care
to warn such trespassers of the condition and the risk involved.
- Sec. 335 Restatement 2d -
Exception:
There is a Duty to Warn a third party. Balancing test for when
duty to warn comes into play:
B. Proximate Cause
Key Question - Would the injury have occurred but for the
negligence of the defendant.
a. Foreseeable Results
b. Foreseeable Plaintiffs
C. Prenatal Harm
15. Immunities
3 Categories of Immunity:
A. Governmental (Shrinking)
1. Qualified Immunity
- Qualified Immunity can be overcome if it can be demonstrated
that defendant acted in bad faith.
2. Absolute Immunity
a. Government acting in a proprietary function (something
that is not a government function [e.g. owning ballpark, etc.]) - No
longer applies
b. Government acting in a government - a government function
is one that only the government can engage in - police, fire, etc.])
c. Government acting in a discretionary function (the
conduct of administrators in establishing plans, specifications or
schedules of operations). Can be overcome by bad faith.
d. Government acting in a ministerial function - a
ministerial function is one where a governmental official has a duty to
act in a certain way. If he/she fails to act in that way the government
is liable.
e. Current Wisconsin Law = No absolute immunity. State and
Local governments liable in tort with certain restrictions.
i. Must give notice of claim within 120 days of the
incident.
ii. Recovery against municipality limited to $50K
iii. Recovery against the State limited to $250K
iv. No punitive damages allowed (unless bad faith is
proved)
v. Government is still immune if acting in discretionary
function.
vi. If government employee is acting in a ministerial
function (employee is directed by law to do something) and negligence
arises then liability exists.
A. The person who for his own purposes brings on his lands and
collects and keeps there anything likely to do mischief if it escapes,
must keep it in at his peril, and, if he does not do so, is prima facie
answerable for all the damage which is the natural consequence of its
escape.
- Case on Point - Fletcher v. Rylands
B. The policy of law does not impose the rule of strict liability
to protect against harms incident to the plaintiff's extraordinary and
unusual use of the land.
- Case On Point - Foster v. Preston Mill Co.
1. Bases of Liability
a. Negligence
i. Manufacturer owes a duty of care to all, not just
those involved in the contractual relationship if (1) there is a
probable danger of serious injury if the product is negligently made
(forseeability) and (2) it is foreseeable that the product will be used
by someone other than the immediate buyer.
ii. Manufacturer of finished product is responsible for
each piece that goes into the product whether he/she makes it or not.
iii. In a case involving a defective product that breaks
in normal use causing injury, to recover in negligence the plaintiff
must prove not only that the breakdown and resulting injuries were
proximately caused by a product defect, but also that negligence
attributable to the manufacturer caused the defect to be present
- Case On Point - MacPherson v. Buick Motor Co.
Comment m. "Warranty."
The liability stated in this section does not rest upon
negligence. It is strict liability. The basis of liability is purely
one of tort.
- Sec. 402A Restatement 2d -
2. Most modern civil rights actions are based on Sec. 1 of the Civil
Rights Act of 1871:
Every person who, under color of any statute, ordinance,
regulation, custom or usage, of any State or Territory or the District
of Columbia, subjects, or causes to be subjected, any citizen of the
United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for redress. - 42
U.S.C. 1983 -
4. In any given Sec. 1983 suit, the plaintiff must still prove a
violation of the underlying constitutional right; and depending on the
right, merely negligent conduct may not be enough to state a claim.
- Case on Point - Daniels v. Williams
X. Defamation
C. Harm - The plaintiff must prove that he/she has suffered harm
because of the defamatory statement.
5. Defamation - Definitions:
6. Groups
A. Compensatory
8. Retractions
A. Retractions affects the calculation of both punitive and
compensatory damages.
B. Some states limit damages unless a retraction is asked for and
refused.
C. Some states make a demand for a retraction a prerequisite for
bringing an action.
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