Torts I Notes 8/27/2013 7:57:00 AM

Torts are the laws of accidents. This body of law promotes safety, deters
risky behavior and compensates victims of accidents. In order to have a tort,
there must be (The holy trinity!):
Fault
Someone to pay
Damages

Intent:
In order that an act may be done with the intention of bringing about a
harmful or offensive contact or an apprehension thereof to a particular
person, either the other or a third person, the act must be done for the
purpose of causing the contact or apprehension or with knowledge on the
part of the actor that such contact or apprehension is substantially certain to
be produced (13 Restatement).
Garratt v. Dailey (1955): defendant claims that young boy
intentionally pulled a chair from under her, causing her injuries.
o While a minor who has committed a tort with force is
liable as any other would be, a plaintiff must establish
that the defendant committed his or her act for the
purpose of causing the harmful contact or with
substantial certainty that such contact will result.
Spivey v. Battaglia (1972): Plaintiff was paralyzed after defendant
intentionally hugged her against her will.
o A party who acts with knowledge and substantial
certainty that a particular result will follow is liable for
all results flowing from his act regardless of how
unforeseeable or unreasonable.
Ranson v. Kitner (1889): Defendants mistook the plaintiffs dog for
a wolf and shot it dead.
o Parties are liable for damages caused by their own
mistaken understanding of the facts, regardless of
whether they have acted in good faith.
McGuire v. Almy (1937): mentally insane patient injured Plaintiff.
o An insane person is liable for his intentional torts.
Talmage v. Smith (1894): Defendant threw a stick to get some
boys off of his shed and injured one of them.
o Transferred intent: If an actor has the intent to commit
any of the transferred intent torts (assault, battery,
false imprisonment, trespass to land, and trespass to
chattels), the actor will be liable for all other
transferred intent torts that result from that act. The
actors liability extends to all parties harmed, not
merely the original intended victim.
***Suing for intentional torts is a much more direct line to damages***
Battery:
knowing or intentional touching of one person by another in a rude, insolent
or angry manner. Plaintiff does not have to be aware of the battery
Harmful Contact
o A) acting with the intention to cause a harmful or offensive
contact with the person of another, or an imminent
apprehension of such a contract, and
o B) a harmful contact with the person of another directly or
indirectly results
Offensive Contact
o A) acting with the intention to cause a harmful or offensive
contact with the person of another, or an imminent
apprehension of such a contract, and
o B) an offensive contact with the person of another directly or
indirectly results.
Cole v. Turner (1704): No facts given!
o The lightest angry touch constitutes battery. A gentle
touch made in close quarters with no ill intention is not
a battery. A forceful or reckless touch, in close quarters
is a battery.
Wallace v. Rosen (2002): Teacher touched a parent during a fire
drill after instructing her to exit the building.
o Consent to ordinary personal contact is assumed for all
contacts that are customary and reasonably necessary
to the common intercourse of life, and in such
circumstances, no intent to unlawfully invade anothers
interest will be found.
Fisher v. Carrousel Motor Hotel, Inc. (1967): Black customer was
told that he wouldnt be served in front of all his colleagues.
o A Plaintiff may recover for battery even when not
physically touched so long as the Defendant committed
an unwanted, intentional invasion of the inviolability of
the Plaintiffs person.
Assault:
an intentional offer to touch the person of another in a rude or angry
manner under such circumstances as to create a well-founded fear of an
imminent battery.
Western Union Telegraph Co. v. Hill (1933): Repairman solicited
sexual favors from a female customer in exchange for him fixing
her broken clock.
o For assault to occur, there must be an intentional and
unlawful offer or attempt to touch anothers person in a
harmful or offensive manner such that it creates a well-
founded apprehension of imminent battery. One
accused of assault must also appear to have the
present ability to commit the battery if not prevented.

False Imprisonment:
the direct, physical restraint of a person where there is no legal justification
for the imprisonment and there is no other reasonable means of escape.
Big Town Nursing Home, Inc. v. Newman (1970): Plaintiff
attempted to leave a nursing home and was held there against his
will.
o False imprisonment is one persons direct restraint of
anothers physical liberty in the absence of sufficient
legal justification.
o Remittitur: A judges order to reduce the damages awarded
by a jury in civil cases as a result of a lack of evidence during
trial.
Parvi v. City of Kingston (1977): Plaintiff was arrested for being
intoxicated. He was driven outside of city limits and released where
a moving car injured him.
o Consciousness of confinement is a necessary element
of false imprisonment, but recollection of that
consciousness is not. It is thus possible to maintain a
cause of action for false imprisonment despite lacking
any recollection of confinement.
Hardy v. LaBelles Distributing Co. (1983): Plaintiff was accused of
stealing a watch from her place of employment. She was detained
and questioned, but released later.
o While actions or words may give rise to a claim of false
imprisonment, the actions or words must rise to the
level of unlawful restraint against ones will to be
actionable.
Enright v. Groves (1977): Plaintiff was given a citation for her dog
being off a leash, but was detained for not providing the police with
her license.
o Conviction of the crime for which one is arrested bars a
subsequent claim for false imprisonment, but being
arrested for something that is not illegal does.
Whittaker v. Sandford (1912): Plaintiffs were members of a cult and
when they decided to quit the group, they were denied a means of
escape.
o Physical restraint is required for false imprisonment,
but this does not mean actual physical force must be
used. Refusing to provide one with the means to
overcome a physical barrier can constitute restraint.

Intentional Infliction of Emotional Distress:
Where intentional conduct has been so outrageous in character and extreme
in degree as to go beyond all possible bounds of decency.
State Rubbish Collectors Assn v. Siliznoff (1952): Defendant
alleged that agents of Plaintiff threatened him with physical violence
if he did not make an arrangement to pay Plaintiffs member the
money derived from the collection.
o There exists a cause of action for intentional infliction
of emotional distress for serious threats of physical
violence whether or not such threats technically rise to
the level of assault.
Solcum v. Food Fair Stores of Florida (1958): Plaintiff was a
customer in Defendants store and asked an employee the price of
an item. The employee insulted her by responding that [i]f you
want to know the price, youll have to find out the best way you can
because you stink to me.
o Mere expressions of insults or general abuse are not
actionable unless it can be shown that they were
intended to bring about severe emotional distress.
Harris v. Jones (1977): Defendant (Supervisor) frequently mocked
Plaintiff (worker) about his speech impediment and his condition on
the job, causing him to feel distress.
o For intentional infliction of emotional distress: 1) the
conduct must be intentional or reckless; 2) the conduct
must be extreme and outrageous; 3) the wrongful
conduct must cause the distress; and 4) the emotional
distress must be severe.
Taylor v. Vallelunga (1959): Plaintiff alleges Defendants physically
attacked him and his daughter, alleges she witnessed the attack.
o For one to recover for emotional distress when she has
experienced no physical injury, she must establish that
the Defendant intentionally caused her to suffer from
severe emotional distress.

Trespass to Land:
Unauthorized entry upon anothers land.
a. Quiet title: when one is in possession of the land, but another is claiming
possession.
b. Ejectment: when a defendant is in possession of land but another would
like them removed
Dougherty v. Stepp (1835): Defendant entered Plaintiffs land to
perform a survey, but did not mark trees or cut timber. Plaintiff
sued for trespass.
o Every unauthorized entry upon anothers land qualifies
as a trespass, regardless of the degree of damage done
in the process.
Herrin v. Sutherland (1925): Defendant, while hunting, fired his
shotgun at birds flying over Plaintiffs land.
o Interference with the airspace over ones property can
give rise to an action for trespass.
Rogers v. Board of Road Comrs for Kent County (1947): Defendant
placed a snow fence and posts upon Plaintiffs husbands property
with the understanding that it would be removed at the end of
winter. Defendant did not remove the fence at the end of winter,
and Plaintiffs husband was killed by an accident involving the
fences continued presence on his property.
o When one consents to the presence of a structure or
chattel on his property and that structure or chattel is
not removed after the consent is revoked or
terminated, he may recover for damages resulting from
its continued presence.

Trespass to Chattel:
physical interference with the chattel (personal, moveable property) in the
possession of another.
Glidden v. Szybiak (1949): A dog owned by Defendants bit Plaintiff,
a four year-old girl. Plaintiff sued to recover for her personal
injuries.
o In order to prove a case of trespass to chattels, there
must be damage to the chattel, the owner must be
deprived of use of the chattel for a substantial period of
time, or bodily harm must result from the trespass.
CompuServe Inc. v. Cyber Promotions, Inc. (1997): Despite
Plaintiffs request that they cease to do so, Defendants continually
distributed unsolicited e-mail advertisements to the subscribers of
Plaintiff. Plaintiff sought to enjoin Defendants from continuing in its
efforts to send such unsolicited messages to its subscribers.
o Electronic signals sent via a computer are sufficiently
tangible to form the basis of a cause of action for
trespass to chattels, and interference therewith can be
actionable.
Conversion:
intentional dominion over a chattel that interferes with anothers rights to
control it.
Pearson v. Dodd (1969): Staffers of Plaintiff, a United States
Senator, repeatedly entered his office and removed various
documents. They made copies of the documents and distributed the
copies to Defendants, who published their contents.
o Conversion is the intentional exercise of control or
dominion over a chattel that interferes with anothers
rights to control it with sufficient severity that the
party exercising such control may fairly be required to
pay for its full value.
o Where information is gathered and arranged at some
cost and sold as a commodity on the market, it is
properly protected as property.
Privileges:
9 Defenses to intentional tort liability.
Consent: a partys willingness for conduct to occur.
a. In order to be valid, consent must be given by one who is
capable of consent and
b. Defendant actions do not exceed the scope of consent.
c. Can be withdrawn and cannot be fraud or duress.
OBrien v. Cunard (1891): all passengers on defendants
ship were required to be vaccinated; plaintiff was a
steerage passenger who allegedly didnt consent to
vaccination.
When consent to act is not explicitly
expressed, an individual may rely on the
other party's behavior and overt acts in
order to determine whether that party has
consented to the individual's conduct.
Hackbart v. Cincinnati Bengals, Inc. (1979): One
football player intentionally hit another.
Even in an inherently violent situation such
as a game of professional football, it is
possible for one to go beyond its customs
and so be liable for injuries in tort if the act
was intentional.
Mohr v. Williams (1905): Plaintiff sues a surgeon, for
assault and battery after Defendant successfully and
skillfully performed an operation on Plaintiffs left ear
without specific consent.
If an operation is performed without
Plaintiffs consent, and the circumstances
were not such as to justify its performance
without consent, then the operation is
wrongful and thus unlawful.
Medical care providers may act in absence
of expressed consent if: 1) the patient is
unable to give consent, 2) there is risk of
severe bodily harm, a reasonable person
would consent under the circumstances and
4) the physician has no reason to believe
the patient would not consent.
De May v. Roberts (1881): Plaintiff (Roberts) had
requested that a doctor, visit her house for
medical purposes. He arrived along with a second
person, Defendant Scattergood, who was not a
doctor.
Consent given under false pretenses is
not valid consent and will not operate
as a defense to a subsequent action.
Self-Defense: anyone is privileged to use reasonable force to
defend himself against a threatened battery on the part of another.
a. The privilege exists when the defendant reasonably believes
that the force is necessary to protect him against battery.
b. If during self-defense a bystander is hurt, one is not liable for
negligence.
c. Verbal provocation, excessive force, and retaliation are not
privileged.
Exception: if the abusive words are accompanied by an
actual threat of physical violence reasonably warranting
an apprehension of imminent bodily harm, one may be
privileged to defend.
Defense of others: a person may use reasonable force to defend a
3rd party from impending attack by another person.
a. The person can only use the amount of force that the 3
rd

party would have been privileged to use.
Reasonable mistake: If one makes a mistake about
whether force is necessary, one is protected by a
reasonable mistake defense.
Defense of property: one may use non-deadly, reasonable force
under the circumstances to protect property.
o Katko v. Briney (1971): Defendants rigged a shotgun in a
bedroom positioned to shoot trespassers in the legs upon
opening the door. Plaintiff Katko entered the bedroom
unlawfully which triggered the gun and most of his entire
right leg was blown away.
Premises owners do not have a privilege to
protect their property using force intended or
likely to cause death or serious harm against a
trespasser.
a. Possessor who used force to defend property in a reasonably
mistaken belief that he was entitled to privilege is not
protected unless the intruder in some way mislead the
possessor as to his id or authorization.
Recovery of property: An owner of a chattel, wrongfully
dispossessed of that item (by fraud or force), has a privilege to take
prompt action and use reasonable force under the circumstances
(non-deadly) to recapture the chattel.
a. Fresh pursuit is required, person entitled to recover property
w/o legal intervention UNLESS a lapse of time/delay has
occurred; must be prompt discovery and pursuit without
unreasonable delay.
b. Must not breach the peace.
c. Reasonable force is not permitted until a demand for return of
chattel has been made unless such a demand would be futile
or dangerous.
Hodgenden v. Hubbard (1846): Plaintiff purchased a
stove from Defendants on credit and took it away.
Defendants quickly discovered that Plaintiffs credit
information was false and immediately set out to
overtake him and recover the stove by force.
o Bonokowski v. Arlan's Department Store (1968): Plaintiff had
left department store after shopping. She was asked to see
the contents of her purse but it was found that she did not
shop lift.
There exists a privilege for merchants or
shopkeepers to detain those whom they
reasonably believe to have unlawfully taken
chattels for a reasonable investigation and
thereby avoid liability for false imprisonment.
Public Necessity: Use of private property by a public official for a
public purpose.
a. Where there is imminent danger and a real public necessity,
there is privilege.
Surocco v. Geary (1853): Alcalde of San Francisco
(Defendant), in the midst of a massive fire, destroyed
Plaintiffs house in an effort to stave off the fire.
A person who tears down or destroys the
house of another, in good faith, and under
apparent necessity, during a deadly fire, in
an effort to save the adjacent buildings and
to stop the fires progress, cannot be held
personally liable in an action by the owner in
connection with the destroyed property.
Vincent v. Lake Erie Transp. Co. (1910): A steamship
owned by Lake Erie Transportation Co. was tied at
Vincents dock to unload cargo. A storm arose and the
vessel was held secure to the dock causing $500 in
damage to the dock.
Where one reasonably believes his interests
outweigh the loss or harm another may
incur, his conduct is privileged. That person
will be held liable, however, to the extent he
or she causes damage to anothers property
or land. **private necessity**
Authority of Law: one of official capacity may act under authority of
law, engaging in conduct that otherwise would be tortious.
a. Examples include arrests made by police with or without a
warrant if made in good faith.
Discipline: One who has the rightful control of another, has the
privilege of exercising reasonable force and restraint upon them,
without inflicting great bodily harm.
a. This privilege usually extends to parents, teachers, and
military/naval officers.
Justification: A defendants act may be privileged if reasonable
under the circumstances to protect others from personal injury or
protect property despite not falling under any of the other privileges
o Sindle v. New York City Transit Authority (1973): Plaintiff was
a passenger on a school bus owned by Defendant transit
authority and driven by Defendant Mooney. Students aboard
the bus were behaving rather disobediently and causing
damage to the bus despite Defendants admonitions.
Ultimately, Defendant bypassed the usual stops and took the
Plaintiff and a few other students to a police station.
Reasonable restraint or detention undertaken
with the aim of preventing another from inflicting
personal injury or damaging property is not
unlawful.
Negligence: a separate form as a basis for unintended torts.
*professional, children, med mal, res ipsa loquitor, negligent per se, ect*
A cause of action for negligent requires:
a. A duty of reasonable care
b. A breach of that duty
c. A causal connection between the conduct and the resulting
injury
d. Actual damages resulting from the breach.
(duty + breach = liability)(Liability x causation=
damages)
A plaintiff has three different burdens of proof: 1) the burden of
pleading, 2) the burden of coming forward with enough evidence to
avoid directed verdict against him and 3) the burden of persuading
the jury.
Lubitz v. Wells (1955): Defendant Wells, Sr. left a golf club lying in
his yard. His son, Defendant Wells, Jr. and his friend, Plaintiff, were
playing in the yard when Wells, Jr. discovered the club. Wells, Jr.
picked up the club and swung it, striking the Plaintiff in the face and
injuring her.
o A golf club is not so inherently dangerous that leaving
it lying in a yard can constitute negligence.
o Children under 7 are incapable of negligence, children
age 7-14 may be presumed incapable, but may be
proved capable and children over 14 may be presumed
capable, but may be proved incapable.
Blyth v. Birmingham Waterworks Co. (1856): Defendants had
installed water mains along the street with hydrants located at
various points. One of the hydrants across from Plaintiffs house
developed a leak as a result of exceedingly cold temperatures and
caused water damage to the house. Plaintiff sued for negligence.
o A mere accident that is not occasioned by the failure to
take action or the taking of such an action does not
qualify as negligence.
Gulf Refining Co. v. Williams (1938): Plaintiff was injured after a
gasoline container delivered by Defendant exploded while he was
trying to remove its cap. The explosion occurred as a result of a
spark caused by worn threads on the cap.
o Foreseeability of a harm is the existence of such a
likelihood of damage so as to induce action to take care
against it on the part of a reasonably prudent person.
Chicago, B. & Q.R. Co. v. Krayenbuhl (1902): Plaintiff, a four year-
old child, was injured while playing on dangerous equipment owned
and operated by Defendant, a railroad company. Despite the fact
that Defendant had rules requiring the equipment to be locked and
inaccessible to members of the public, Plaintiff was able to access it
when he discovered it
o With respect to dangerous instrumentalities, the
character, location, and utility of the instrumentality as
well as the ease of making it safer must be taken into
account in determining what degree of precaution is
necessary so as not to be negligent.
Davison v. Snohomish County (1928): Plaintiffs were driving their
car across a bridge, at which point the car lost control and drove off
the road, over the guardrail. Plaintiffs suffered severe injuries and
wrecked their automobile. Plaintiffs brought an action to recover for
their damages.
o While municipalities are required to maintain roads for
public use, there are limitations to the extent of safety
that can be provided to all roads. For elevated
causeways or viaducts, municipalities are required only
to take such measures as are reasonable to prevent
against injury. Absolute safety cannot be guaranteed.
United States v. Carroll Towing Co. (1947): Plaintiffs barge broke
away from Defendants tugboat and started to leak after it was
swept away into the propeller of a tanker.
o When the magnitude of the risk exceeds the utility of
the conduct, there is a duty of care to protect others
from harm. The owners duty, as in other similar
situations, to prevent against resulting injuries is a
function of three variables: (1) The probability of the
kind of incident in question; (2) the gravity of the
resulting injury; and (3) the burden of adequate
precautions.
Vaughan v. Menlove (1837): Defendant paced a stack of hay near
cottages owned by Plaintiff. Defendant was warned that there was a
substantial possibility that the hay would ignite, and Defendant
replied that he would chance it. The hay eventually did ignite and
burn Plaintiffs cottages
o One has behaved negligently if he has acted in a way
contrary to how a reasonably prudent person would
have acted under similar circumstances.
Delair v. McAdoo (1936): Defendant attempted to pass Plaintiff as
they were driving in their cars. Defendants tire exploded as they
were alongside one another, causing a collision.
o Drivers are required to know the condition of the parts
of their vehicles that may become dangerous when
their dangerous condition could be found through a
reasonable inspection.
Trimarco v. Klein (1982): Plaintiff suffered severe injuries when the
glass of a bathtub he was in shattered. Defendants owned the
building in which the incident occurred, and had used ordinary glass
for the bathtub enclosure despite the common practice of using
shatterproof glass in such cases. Plaintiff sued for his personal
injuries.
o When custom and practice have removed certain
dangers, the custom may be used as evidence that one
has failed to act as is required under the
circumstances.
Cordas v. Peerless Transportation Co. (1941): A taxi driver working
for the Defendant, Peerless Transportation Co. (Defendant), jumped
from his taxi while it was running to escape an armed highwayman
who was being pursued by his victim. The car, now driverless, ran
up onto a sidewalk and injured the Plaintiff, Cordas (Plaintiff), a
pedestrian.
o Reasonable and prudent action is based on the set of
circumstances under which the actions took place. To
qualify as a sudden emergency, the event must be
unforeseen, sudden and unexpected.
Roberts v. State of Louisiana (1981): The Plaintiff, Roberts
(Plaintiff), fell and broke his hip when a blind man bumped him
into.
o The handicapped are held to a reasonable standard of
care for a person with their disability, the handicap is
considered part of the circumstances.
Robinson v. Lindsay (1979): The plaintiff, an eleven-year-old girl,
lost the use of her thumb as a result of a snowmobile accident. The
driver of the snowmobile was a thirteen-year-old boy.
o When a child causes injury by engaging in dangerous or
adult conduct, they are held to an adult standard of
care.
Breunig v. American Family Ins. Co. (1970): The Plaintiff, Breunig
was injured in a car accident when Erma Veith, the Defendant,
American Family Ins. Co.s (Defendant) insured, drove her car into
the Plaintiffs truck after suffering a schizophrenic attack.
o It is unjust to hold a person to a reasonable person
standard in evaluating their negligence when a mental
illness comes on suddenly and without forewarning
causing injury to another.
o Most courts do not make any allowance for the mental illness
of a defendant in torts casesthe defendant is judged by the
reasonable person standard.
Heath v. Swift Wings, Inc. (1979): Pilot error caused an airplane
crash, killing the pilot and the passengers.
o Professional standard of care is not a subjective
standard, it is an objective standard (the knowledge,
training, and skill of an ordinary member of the
profession in good standing) predicated on the rules
and guidelines of the profession.
Hodges v. Carter (1954): The Plaintiff, Hodges is suing the
Defendants, his former attorneys, alleging that they negligently
prosecuted his insurance claims against out of state insurance
companies when the attorneys failed to properly serve the
complaints.
o Attorneys are not liable for errors in judgment or
mistakes of law if they: 1) possess the requisite degree
of learning, skill and ability necessary to practice, 2) he
will exert his best judgment and 3) he will exercise
reasonable and ordinary case and diligence in the use
of his skill and in the application of his knowledge.
Boyce v. Brown (1938): Nannie Boyce suffered pain and disability
seven years after the Defendant, Brown placed a metal screw in her
ankle. The Plaintiffs, sued the Defendant.
o Medical malpractice can only be shown where, by
expert testimony, it is established that the doctor acted
outside of the community norms in their treatment of
the patient.
Morrison v. MacNamara (1979):
Scott v. Bradford (1979):
Moore v. Regents of University of California (1990):
Pokora v. Wabash Ry. Co. (1934):
Osborne v. McMasters (1889):
Stachniewicz v. Mar-Cam Corp. (1971):
Ney v. Yellow Cab Co. (1954): Yellow Cab Co.s (Defendant), cab
was stolen from the street side where its driver had left it running,
unlocked and unattended. While driving the stolen cab, the thief
struck and damaged the Plaintiff, Neys vehicle.
o If the harm resulting from negligence is foreseeable,
then an intervening criminal act does not break the
chain of causation.
Perry v. S.N. and S.N. (1998): The parents of two children who
were sexually abused at their day care center filed a complaint
against friends of the alleged abusers for failing to report the abuse.
In failing to report, the defendants violated a section of the Family
Code.
o A cause of action in negligence per se requires that
there be an underlying duty at common law.
Martin v. Herzog (1920): Elizabeth Martins husband William Martin,
was driving a buggy after dark without using lights. He was killed
when the Defendant, Herzogs car collided with the buggy.
o If the plaintiffs negligence is a contributory cause of
the injury, then he cannot recover for the negligence of
the defendant.
Zeni v. Anderson (1976): Zeni was injured when she was hit by the
Andersons car on her way to work. The Plaintiff was not using a
sidewalk, but a snow path, and was therefore in violation of a
statute requiring pedestrians to use sidewalks where available.
o The violation of a statute creates a rebuttable
presumption of negligence, which can be overcome by
providing an adequate excuse as to why the statue was
ignored.
Goddard v. Boston & Maine R.R. Co. (1901): An individual slipped
on a railroad platform after stepping on a banana peel and
sustained certain injuries.
o A railroad is not liable for negligence, if a passenger of
the railroad may have perpetrated the negligent action.
Anjou v. Boston Elevated Railway Co. (1911): Anjou (Plaintiff),
slipped and fell on a banana peal left on the Boston Elevated
Railway Co.s (Defendant), train platform.
o Circumstantial evidence can be used to establish proof
of negligence.
Joye v. Great Atlantic and Pacific Tea Co. (1968): Joye (Plaintiff),
slipped and fell on a banana peal in the Atlantic and Pacific Tea
Co.s (Defendant), store.
o If there is no evidence to establish that the defendant
had notice of the hazard, then the plaintiff cannot
prove negligence.
Ortega v. Kmart Corp. (2001): Slip and fall in Kmarts refrigerated
section.
o Plaintiffs may demonstrate the storekeeper had
constructive notice of the dangerous condition if they
can show that the site had not been inspected within a
reasonable period of time so that a person exercising
due care would have discovered and corrected the
hazard.
Jasko v. F.W. Woolworth Co. (1972): Jasko (Plaintiff), was injured
when she slipped and fell on a slice of pizza in the F.W. Woolworth
Co.s (Defendant), store.
o When the defendant engages in a business that is
prone to hazardous mishaps, then the nature of the
business serves to put the business on notice of
possible injuries.
H.E. Butt Groc. Co. v. Resendez (1999): Slip and Fall near grapes.
o A plaintiff in a slip and fall case must prove that the
condition of the premises posed an unreasonable risk
of harm, and the facts and circumstances will
determine whether such risk is unreasonable.

Res Ipsa Loquitor : the elements of duty of care and breach can be
sometimes inferred from the very nature of an accident or other outcome,
even without direct evidence of how any defendant behaved.
The plaintiff's injury must be of a type that does not ordinarily occur
unless someone has been negligent.
The plaintiff's injury or damage must have been caused by an
instrumentality or condition that was within the exclusive control of
the defendant.
The event in question must not have been attributable to any fault
of plaintiff is responsible.
o Byrne v. Boadle (1863): Byrne testified that he was walking
along Scotland Road when he evidently lost consciousness.
Witnesses testified that a barrel of flour fell on him. Neither
Plaintiff nor any of the witnesses testified as to anything done
by Boadle that could have led to the barrel falling.
A plaintiff must persuade a jury that more likely
than not the harm-causing event does not occur in
the absence of negligence. The plaintiff does not
have to eliminate all other possible causes for the
harm, nor does the fact that the defendant raises
possible non-negligent causes for the harm defeat
plaintiffs effort to invoke res ipsa. The key is that
a reasonable jury must be able to find that the
likely cause was negligence.
o McDougald v. Perry (1998): McDougald, was injured when
the spare tire flew off of the Defendant, Perrys, trailer and hit
the McDougald windshield.
Res Ipsa Loquitur applies to rare occurrences
where the accident itself is evidence upon which
to base an inference of negligence.
o Larson v. St. Francis Hotel (1948): Larson, was injured when
an armchair thrown from a window of the Defendant, St.
Francis Hotel, struck her.
Res Ipsa Loquitur does not apply unless the
object that caused the accident is under the
exclusive control of the defendant and under
ordinary circumstances using ordinary care, the
accident would not have happened.
o Ybarra v. Spangard (1944): In a personal injury action, the
Superior Court of Los Angeles County entered judgments of
nonsuit as to all Defendants in an action for damages for
personal injuries.
When Plaintiff receives unusual injuries while
unconscious and in the course of medial
treatment, all those defendants who had any
control over his body or the instrumentalities,
which might have caused the injuries, may
properly be called upon to meet the inference of
negligence by giving an explanation of their
conduct.
o Sullivan v. Crabtree (1953): The passenger in a truck was
killed when the truck swerved and went off the road and
down a steep embankment. The driver of the truck was
unable to determine the exact cause of the accident.
The doctrine of Res Ipsa Loquitur creates a
burden on the defendant to show a reasonable
explanation for the injury. The strength of that
burden depends on the facts of each case and the
strength of the inference created.

Causation: There are two types of causation, cause-in-fact or proximate
cause.
Duty +Breach =LiabilityLiability +Causation= Damages




BLSA Torts Review 8/27/2013 7:57:00 AM
Element

Rule
Battery Assault Tress
(land)
Tress
(Chattel)
IIED False
Impris.
Conversion
V.con - - - - - - -
Intent Touch/
Appr.
Touch/
Appr.
Entry Inter. Distress Con-
finement
Serious
Interference
Cause - - - - - - -
Ess.
Ele-
ment
Touch/
Appr.
Appr.
of
Imm.
battery
Entry on
land of
another*
Inter. w/
Property
of
another
Serious
infliction
of
distress,
extreme
&outrage
Con-
finement
Serious
inter. w/
Possession
rights of
property of
another
w/o
consent
- - - - - - -

Rule Statement Formula:
1) Volitional Conduct: Consciousness
2) Intention to cause: a) purpose, b) knowledge to substantial certainty
3) and causing: reasonable person standard applies here, a reasonable
person should have known that effect would be caused.
4) insert essential tort element here
5) w/o consent or privilege

Transferred Intent only applies to Battery, Assault, Trespass to Land,
Trespass to Chattel, False Imprisonment and Conversion only. The elements
include: 1) intend the first forcible tort, 2) another resulting forcible tort
happened, 3) direct, 4) immediate (no time lapse).

Trespass to Land: Five ways for entry; 1) personal entry, 2) cause a 3
rd

persons entry, 3) cause a thing to enter land, 4) remain on land after
privilege (time, space or purpose) is revoked, 5) failing to remove a thing
from land.

Trespass to Chattels: There must be damages to win a claim. In order to
prove damages, you must show: 1) deprivation (use loss) for substantial
period of time and 2) physical quality or value diminished.

Conversion: Five ways to convert property; 1) take possession, 2) transfer
possession, 3) withhold possession, damage/alter possession and 4) use.
Four factors of seriousness: 1) extent of control (how much), duration (how
long), inconvenience and 4) damage or harm. In order to determine
damages, examine the initial market value and subtract the market value at
the time of conversion.

False Imprisonment: Five ways to confine; 1) force against person, 2) force
against property, 3) threat against person, 4) threat against property, 5)
legal authority, 6) physical with no reasonable means of escape.
Confinement must be direct and the plaintiff must know about the
confinement.

IIED: Use a reasonable person standard to establish extreme and
outrageous behavior, unless the defendant has prior knowledge of special
circumstance surrounding ones sensitivity. No physical

Issues can be written as such: Volitional conduct with intent to
cause and causing

Defenses:
Consent: Can be expressed or implied. There are 5 elements to have implied
consent; 1) unable to consent, 2) risk of serious harm, 3) harm emergent,
4) no other reason to believe consent wouldnt be given and 5) would a
reasonable person have consented. Consent can be limited by time, space
and purpose. Conceit is a defense to consent.

Defense of Others

Defense of Property: 1) exclusive possessory rights to property, reasonable
force (no killing/serious bodily harm unless its in your current dwelling),
privilege or consent to be there.

Self Defense

Recovery of Property: 1) taken by force/fraud, 2) promptly discover it was
taken, 3) promptly and persistently pursue, 4) reasonable force. (Hogens v.
Hubbard)
Shopkeepers privilege: 1) must be a store owner, 2) reasonably
suspect there is a taking of property 3) reasonable force to detain
(to investigate).

Public Necessity: Use of private property by a public official for a public
purpose to benefit a substantial part of the community.


Tips for Exams:
Read the fact pattern through once
Number each tort as they appear in the fact pattern
Do separate IRAQs for each individual tort claim (i.e. one for
battery facts, one for assault facts, one for IIED facts, ect.)
Preponderance standard of proof

Evidence: Basic Fact
Inference- Circumstances
Presumptions
a. Conclusive
b. Rebuttable
Direct fact

Plaintiffs Burden of Proof
1) Pleading
2) Going forward at trial
3) Risk of non persuasion at trial

Negligence per se Statue
Presumption of negligence-violation of safety statute=prima facia case, but
rebuttable and burden is upon the opposing party to establish a legally
sufficient excuse.
1) protected class of persons
2) person in protected class
3) statute in place for statute
Brittain Torts Review 8/27/2013 7:57:00 AM
Market share liability is a modern tort theory, developed by courts to
facilitate recovery for plaintiffs who, injured by fungible, mass-marketed
products, were unable to identify the responsible manufacturer with
enough certainty to establish causation. Since its creation, plaintiffs
proceeding under market share liability have been denied recourse to
punitive damages awards, and limited to recovery of compensatory
damages, developed to assess blame to a certain number of defendants who
made generic, non-traceable product.

RIL: 1) but for negligence, the incident wouldnt have happened, 2) plaintiff
isnt at fault and 3) the defendant had sole control over the item that caused
the damage. Its an evidentiary rule presented after the case has been
presented to the jury.

Negligence per se: 1) statute in place to protect from harm, 2) plaintiff is in
the class of protected persons.

Duty

Product Liability:
Nuisance:
Defamation:
Invasion of Privacy:
Civil Rights:
Misuse of Legal Procedure:
Misrepresentation:
Interference with Advantageous Relationships:

Torts II Notes 8/27/2013 7:57:00 AM
Negligence
Joint tortfeasors: When two or more people are responsible for the same
liability, they may be jointly liable, severally liable or joint and severally
liable.
Joint liability: each party is liable up to the full amount of the
relevant obligation.
Several liability: the parties are liable for only their respective
obligations.
Joint and several liability: whereby a plaintiff may recover all the
damages from any of the defendants regardless of their individual
share of the liability.
Duty of Care
Privity of contracts:
Non-feasance:
Misfeasance: