Torts OutlineFall 2013

I. INTRODUCTION TO TORTS
1. What is a tort? A civil wrong not based in contract
1) origins: British common law
2) three types: intentional, negligence, strict liability
3) Purpose:

Preserving the peace: we want to provide civil redress for people; forming
alternative form of redress; allow vindication for people wronged by torts,
even where damages are not at issue
Compensation: designed to make the plaintiff whole; KEY; assumed to try to
look at corresponding damages to injury; not necessarily efficient because of
high transaction costs
Alternative systems: workers comp, insurance
Deterrence: deterring dangerous behavior (not clear that tort is the most
efficient way of doing so) (ex: loss of chance doctrineafraid of doctors that
avoid addressing someones chance of survival)
If damages are unforeseeable, deterrence is limited: how can you deter
someone from having an accident?
Corrective Justice (Cardozo): Tort should function as a mechanism that allows
individuals to sue their wrongdoer (vindication)
Loss Distribution: tort is about allocating risks to parties who are in the best
position to assume liability
Strict liability: for parties who have more control, more wealth, spread
costs equally and efficiently
Which way of allocating loss generates the most overall, societal
wealth? What is the most efficient use of funds?
Accountability: a way to hold large inst. Actors, corps, parties for which
individuals have very little ability to seek redress, to have a form of redress
Limiting Govt: if we didnt have torts, we would need statutes to regulate
every little thing;
Tort as alternative to agency capture: when an agency has lobbying
interest and have undue influence over a particular industry

II. NEGLIGENCEfailure to heed a duty of reasonable care owed to

another that causes injury to that other
A. DUTY ELEMENT: Who Owes a Duty?
1. Overview of Negligence Elements / Injury
a) 4 elements: DutyBreachCausationDamages need all four to
objectively prove prima facie case
b) Injury: the first and most basic condition for viable tort claim; must prove
that injury has suffered her the right kind of adverse effect
-physical harms: bodily harms or destruction of tangible property
-loss of wealth (incorrect drafting of will, forced unemployement)
-emotional distress (very severe)

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-loss of chance of survival
-loss of consortium
2. General Duty : must take precautions of a reasonably prudent person acting
under same circumstances to avoid causing harm to another
a) Requires plaintiff to establish that defendant owed her or a class of persons
including her an obligation to take care not to cause the type of injury she has
suffered
b) Duty can be established by reasonable foreseeability: if physical harm to
a person is reasonably foreseeable, actor has a duty to take care to not cause
such a harm to that person
c) Privity rule: limited duty to contracting partiesabolished in MacPherson
decision: duty owed is based on foreseeability of risk
d) No affirmative duty to act but when you do act, you have a duty to do what
a reasonable prudent person would do in like circumstances to avoid harm to
another
e) extent of foreseeability in Mussivand v. David: carrier of VD has duty to
disclose disease or take precautions against spreading infection to sexual
partner AND to that partners spouse who contracts the disease: spouse is a
foreseeable sexual partner (if direct partner is informed, liability shifts)

3. Qualified Duties of Care Affirmative Duties, Intro to Premises Liability

a) Affirmative Duty exists:
-when actor creates risk
-special relationship with victim (employer-employee, school-school children,
common carrier-carried)
-special relationship with tortfeasor
-Doctors and mental health professionals
-voluntary undertaking (hospitals providing care)
-Premises liability (Leffler): ownership creates liability; duty established by
status (status can shift from invitee to trespasser, as in Leffler)
Invitees: customer or client, mail carrier, garbage collector; there
for the interest of the inviter-- duty to keep premises reasonably safe
for ordinary use
Licensees: on property with possessors consent, not for benefit of
possessor (applies to social guest)--duty to warn and disclose nonobvious hazards of which the possessor are aware of or should be
aware; refrain from willfully or wantonly harming the party (no duty to
inspect or repair)
Trespassers: one who enters onto a possessors property with no
license or permission (implied or actual); does not need to be doing
wrong/have intent to do wrongduty to avoid willfully and wantonly
injuring them (willful and wanton = crossbows on lawn to deter)

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**Trespassing children exception: Attractive nuisance doctrine
1) dangerous condition on land
2) owner has knowledge of children in vicinity that might enter
3) owner knows condition would cause bodily harm
4) expense of remedying condition is slight
5) reasonable care is not taken (signage usually doesnt suffice)
ex: digs a big hole and doesnt fill it back in
**Once trespasser is discovered, owner has duty to warn of nonobvious
dangers
Shield rationale-wouldnt be fair to require Leffler to take steps to avoid
injury that was not foreseeable
50% of jurisdiction recognizes 2 status categories: invitees/licensees v.
trespasser (on land w. consent v. on land w.o. consent)
30% recognize 3 status categories (above)
20% no distinction (Rowland): Minority Ruling on the Collapsing of
Invitee/Licensee/Trespasser Duties Owed: use fact based test
4. Qualified Duties of Care Meaning and Significance of Duty, Pure
Economic Los
a) Pure economic loss: persons who lose existing wealth or expected income
may stand to recover from another who has carelessly caused such a loss
b) General rule: no duty of reasonable care to avoid causing pure economic
losses to another EXCEPT:
1) if parasitic to physical claim (economic loss as result of physical
harm: medical bills, loss of future income)
2) if parasitic to a property harm (car hits hotel, hotel closes, defendant
owes for loss of business)
3) accountants and attorneys
4) intentional tortfraud, interference w. contract

B. BREACH ELEMENT: What do they have a duty to do?

1. Breach and the Meanings of Negligence
a) Little nnegligence in sense of careless course of conduct
b) Generally a matter of factjury question
c) standard of care is important: least onerous to most onerous scale:
trespassersordinary careextraordinary carestrict liability
2. The Reasonable Person; Custom

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a) The reasonable person: objective standard applied to external conduct
rather than state of mind/attitude;
takes into account:
-youth: tender years doctrineAppelhans v. McFall- angry old
woman hit by 5 year old on bike
under 7 years old: no liability; 7-14 years old: sliding scale
subjective standard
children under a certain age are unable to recognize/appreciate
risk; there is a utility in letting youth make mistakes/learn;
(**caveat: underage but engaging in adult activityadult
ordinary care standard applies)
-limited physical disabilitiesclear cut and basically undisputable
-expertise: raises standardlawyers, doctors, accountants
doesnt take into account:
-mental incapacity, mental illness, clumsiness, old age, rashness
b) Custom: Compliance with custom is probative of reasonable care but not
dispositive of reasonable care; does not carry the day; even if defendant acted in
customary way, it will not establish that it lacks liability (TJ Hooper)
--Professional exception: Custom IS dispositive for doctors, lawyers, accountants;
Johnson rule: no breach as a matter of law when a defendant acts in accordance
with accepted professional practices; inverse: if not acting in accordance with
accepted professional practices it is NOT AUTOMATICALLY a breach
Adams factors (boy swinging huge wire is shocked): one way of determining
how much industry standard weighs?
1) was it a lawful exercise?
2) were precautions taken?
3) could the injury be foreseen?
4) is there something particularly dangerous (a special danger) about this place?
5) was there a departure from custom?
6) safer option v. burden to the defendant
7) noticewas there a precedent of similar injuries?
3. Balancing and Cost-Benefit AnalysisWhat if one could quantify the duty of
reasonable care?
Cost benefit analysis:
-Hand formula: B__P (L): balancing the burden on the defendant against the
probability of injury and the magnitude of the loss
-Posner law and econ movement: probability is collapsed: value/cost of precautions
v. value/cost of loss or harm; establishing specific dollar values; guard rail costs less
than plaintiffs medical bills, defendant should pay those medical bills

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-Lord Reid (Bolton case): when burden is large and probability of harm is very small,
no precautions are needed; when harm is very large, one must take ALL precautions

4. Res Ipsa LoquiturThe thing speaks for itself

Breach= Plaintiffs burden of proof burden of production AND burden of persuasion
Res ipsa loquitur: burden shifting mechanism; allows case to move forward without
initial production burden (b/c plaintiff may not have access to facts needed to please
with specificity); applies where defendant had exclusive control of situation, and is in
a significantly better position to present evidence needed; does not mean plaintiff
has met burden of persuasion
three factors:
1) event must be of a kind that does not ordinarily occur in the absence of someones
negligence
2) must be caused by agency/instrumentality within exclusive control of defendant
3) no voluntary action/contribution of plaintiff
ex: Byrne v. Boadle: sack of flour case, Ybarra v. Spangard (pl. under anesthesia for
appendectomy, medical pros have all exclusive knowledge/control of the facts),
Kambat v. St. Francis (lap band left in defendants abdomen)

C. CAUSATION ELEMENT
1. Introduction to Causation / But-For Test & Proof Problems; Loss of Chance
Actual cause: when an actors carelessness actually causes injury to the other; butfor test:
Skinner v. Squarewas presence of phantom zone on switch a but-for cause of
Skinners electrocution and death? NOcircumstantial evidence did not establish
only plausible explanation; plaintiffs failed to show burden of proof by preponderance
of the evidence
Loss of Chance of Survival: Falcon v. Memorial Hospital
-Trial ct. found for defendant, reasoning that because the 37% chance of survival was
not more than 50%, defendant could not be liable for plaintiffs wrongful death.
-Higher ct. changed outcome by altering the INJURY: not wrongful death, but loss of
chance of survival
-0% chance v. 37% chanceit is more likely than not that she lost a chance at
survival
-only applies to human life

98% of the time, loss of chance will arise from med mal cases
Needs to decrease chance of survival by clear amount
Must go to specific deterrence rational: dont want to have situations where
people create
Here, any number of things could have happened (vultures picking, nobody
would have found him anyway, etc.)

Multiple Necessary & Sufficient Causes, Burden Shifting

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Multiple Necessary Causes: but-for test
McDonald v. Robinsoncar collision causes injury to third party: but for the
concurrence of defendants separate negligence acts, the accident would not have
happened and produced the injury
-no need to be the singular cause of an injury to be found liable; its enough to be A
cause
Multiple Sufficient Causes: Substantial Factor test
-but-for test is not used to determine actual causation
-Risk of harm is not enough
-plaintiff must show that this cause alone (among others) would be sufficient to cause
totality of injury (Aldridge did not show that exposure to the chemical alone would be
sufficient, so cannot move on to substantial factor test)
-after determining cause is sufficient: actors carelessness must be a substantial
factor in bringing about an injury in order to be deemed a legal cause of that injury.
Carelessness will be deemed a substantial factor if it constitutes
(i) a non-trivial necessary condition for the occurrence of the plaintiffs injury; or
(ii) one of two or more forces that is each sufficient to bring about harm to another
Burden Shifting- Summers v. Tice (two hunters carelessly shoot a third hunter)
Alternative liability rule:
1) Each party is held independently
2) Each party is held prima facie liable
3) Each is permitted to break the deadlockpresent evidence that he or the other
was more likely to cause injury
*Only applies when:
1) Each of two or more parties have been independently and identically careless
towards the plaintiff
2) Carelessness of one but not the other could have caused injury
3) No suggestions tat there is any other tortfeasor involved
4) Plaintiff is absent of fault
Like res ipsathis rule stems from the dear that the faultless victim will be unable to
prove cause
Introduction to Proximate Cause Foreseeable Risks
Proximate Cause- is the injury too attenuated to make a party liable?
Evolution of prox cause rules/tests:
1. Natural and Ordinary Test: About physical proximity- very limiting and quickly
overruled- but set the groundwork for future concepts
Ryan Case- it was natural and ordinary (and therefore proximate) for a fire to
spread to one place (the shed), but NOT a proximate cause when the fire spread to a
second place (in this case- the plaintiffs house)
2. Directness Test- Polemis (opposite of the foreseeability test)
Not having foreseeability is irrelevant- if Ds careless acts directly caused Ps injury,
then D is liable
3. Foreseeability
-Union Pump v Allbriton- Pump manued by D caught on fire at Ds workplace. Put out
fire and a few hrs later P went w coworker to go check another valve. Took a faster
but less safe route to the valve, on the way back P slipped on water from putting out

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the fire and fell. P sued D bc she said w/o the fire, there would be no injury. Court said
you need cause in fact AND foreseeability, forces were not still in play, circumstances
were too remote- no prox cause.
--Was it reasonably foreseeable that Ds carelessness would cause Ps injury?
--Norm, expectation- what the defendant is expected to see, and not what they
defendant actually sees
--Setting an objective standard- an objective level of reasonable foreseeability
What is reasonably foreseeable?
-What one is expected to see, not what one actually perceives
-objective level of anticipation
4. Scope of Risk Test
Is the injury that befell the plaintiff amongst the types of harms that the defendant
risked by virtue of acting carelessly towards the plaintiff? Jolley v. Sutton London
Borough Council (boy injured fixing abandoned boat)
Proximate Cause Continued Superseding Cause
BL RULE: where intervening forces are individual actions distinct from natural
response or reaction to the situations caused by defendant, proximate cause will
most likely limit defendants liability
(Superseding cause) Pollard v. Oklahoma (boy collected powder in cans):
independent intervening acts of Millard and his parents rendered the original
negligent act of the defendant to only a remote cause of plaintiffs injury
(Not superseding cause) Clark v. E.I. DuPont (kids find glycerin in a graveyard):
distinct from Pollard- no work or effort to create new danger; injury naturally
stemmed from original dangerous act (negl. of E.I. DuPonts agent)
*Proximate cause is not tightly linked to temporal proximity between act and
intervening cause
Yes-Sup. Cause
1) Is the third party breach second in
time?
2) Is it a new form of mischief;
transformative; independent;
breaks chain of natural events;
acts of God

Not Sup cause

1) 2nd act is by plaintiff (theres a
different way to deal with pl.s
fault
2) forces set in motion by
defendants careless act
-inevitable consequences
(responses/reactions)
-rescue
-medical malpractice
-involuntary/kneejerk reaction

Proximate Cause Continued Palsgraf

Cardozo switches focus to duty from causation:
-Zone of Danger Test: the breach of the duty of care proven by plaintiff must be a
breach of duty owed to pl. or to class of persons to which she belongs

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-Cardozos relationality test: is victim in Palsgraf a foreseeable victimno, out of
danger zone
Andrew dissent: there should be no relational aspect to duty; look to proximate cause
-recovery must comport with common sense
-practical politics
-very uncomfortable reversing a jurys decision

D. (An interlude) STATUTORY SUPPLEMENTS TO NEGLIGENCE LAW

Negligence Per Se [Breach per se]- permits plaintiff to point to the standard of
care outlined by the stature, regardless of how he or she would fare under ordinary
standard of care
To invoke a statutory standard of care:
1) statute must protect this class of people
2) statute must protect this type of injury
3) statute must have clear standards of expected conduct
-Effect of violating a statutory standard of care: presumption of breach of duty of care
-Compliance with statute does not necessarily mean that duty has not been breached
(one can still be careless)
-Weighs heavily in favor of defendant
-Like customprobative not dispositive
-still must prove causation
Why does negligence per se exist?
1) giving deference to political branches of government (separation of
powers)
2) reasonable person will comply with the law: adherence to norm
3) efficiency
4) fairness: reasonable reliance on rules of conduct laid out in advance
Exceptions for negligence per se:
1) young children (unaware of law, tender years)
2) if there is an inability to comply
3) if it is more unreasonable or unsafe to comply with the law
Wrongful Death Acts
Two types of actions: policy purposes: deterrence and accountability
Wrongful death actionderivative claim of decedents

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-benefits decedents next of kin: must prove all 4 elements of negligence to
decedent, THEN prove this negligence had direct cause of next of kins loss
-deals with economic dependence: child care, elderly care, pension, wages from the
deceaseds job
-usually only allows for pecuniary damagesdamages for mental suffering not
recoverable (Nelson v. Dolanmother sues for emotional damage after sons death)
-loss of consortium- money for things like rent, education costs, sometimes parental
guidance, etc
Survival Actiondecedents harms prior to death
- brought by administrator of decedents estate
-purpose is to vindicate rights of decedent: had decedent survives, this would be part
of action
- pain and suffering (even if only 5 minutes as in Nelson v. Dolanfear of impending
doom) and medical costs up to time of death, funeral costsall recoverable

E. DEFENSES: burden shifts to defendant to engage in affirmative defense

Contributory Negligence vs. Comparative Responsibility
Contributory Negligence- applies to a few states: any fault shown by plaintiff will
negate its ability to recover ANYTHINGassessed by standard of ordinary care
**Last clear chance is exception to contributory negligence: if defendant has the last
clear chance to avoid causing injury and doesnt, no contributory negligence defense
will be available
Comparative Faultthree models
Modified/Partial- applies to 2/3 of jurisdictions: bars plaintiff from recovery if
plaintiff is found more than 50% negligent
Pure- 1/3 of jurisdictions: plaintiff recovers whatever percentage he or she is
responsible for
Divided: damages are divided by number of parties evenly
**Apportionment is usually the jurys responsibility: jury instructions are therefore
very important (policy choices often embedded)
Assumption of Risk: only for negligence claims and strict liability
- completely bars plaintiff from recovery
-balancing individual liberty/interest against liability of torts
-if an action is unreasonable, one may make assumption of risk argument AND a
contributory fault argument
-if an action in reasonable, assumption of risk is still available as defense
Express Assumption of Risk
1) Did plaintiff enter contract
(something written) voluntarily?
(no duress)
2) Did plaintiff understand contract?

Implied Assumption of Risk

1) Did plaintiff engage in conduct
voluntarily?
2) Did plaintiff understand the risk?

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Tunkl Factors to determine type of transaction in which exculpatory provisions

(express assumption of risk) will be invalid:
-business of a type generally thought suitable for public regulation
-party engaged in service of great importance or practical necessity to public
-party holds itself out as willing to perform public service
-decisive advantage in bargaining strength
-makes no provision whereby purchaser may pay a fee to protect against negligence
Knight v. Jewett identifies: MINORITY RULE
Primary Assumption of Risk: identifies special rule of no duty under which
participants in a certain kind of activity (typically a recreational sport) by virtue of
decision to participate, are owed no duty of reasonable care by other
participants
--NOT REALLY ASSUMPTION OF RISK, JUST A HOLE IN DUTY RECOGNIZED BY
A MINORITY OF JURISDICTIONS
Secondary Assumption of Risk (IMPLIED ASSUMPTION OF RISK): refers to
affirmative defense discussed in Smollett v. Skayting (no guard rails at the roller rink)
-voluntary choice, aware of risk
-American individualistic understanding
-deters plaintiff from engaging in risky behavior
Statutes of Limitation & Repose
Statutes of Limitation: triggered by injury (subject to inquiry rule)
*most jurisdictions adopt discovery rule: statute of limitations does not begin until
plaintiff discovers through reasonable diligence that he or she suffered a
compensable injury: Ranney v. Parawax- clock starts when P knows there is a
compensable inquiry link to legal claim

Statutes of Repose: triggered by date product is manufactured or purchased or by

defendants act
- can run out even before injury has manifested in a plaintiff, BUT gives predictability
and stability to businesses being sued

F. REMEDIES AT LAW: DAMAGES

Compensatory Damages: attempting to make the person whole
In personal injury: past, present, anticipatory
-economic losses: medical expenses, lost earnings, repair costs
-non-economic losses: pain and suffering (intangible losses)
--emotional distress
--loss of enjoyment of life
*note: attorneys fees are not separated in apportioning damages
1) Egg Shell Skull Principle: tortfeasor takes his victim as he finds him; liable
for foreseeable types of harms (and damages); extent of harm that is caused
by initial harm will not bar P from recovery

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Smith v. Leech Brain & Co: plaintiff husband dies from cancer caused by a lip
burn that he obtained while working for defendant; negligent work settings
caused molten metal to splatter on his lip
--case falls within egg shell skull principle, and thus defendant held liable for
all damages leading up to death as ultimate injury
2) Compensatory damages is almost always a question for the jury or trier of
fact:
Kenton v. Hyatt Hotels Corp: judge should not reconsider the damages
awarded by trier of fact unless it is so inaccurate that it shocks the
conscious
3) Duty to Mitigate: P has duty to reasonably mitigate his/her injury; objective
standard: does not take economic inequality into account (a woman who
cannot afford medication that a reasonably prudent person would take to
mitigate her injury will be said to have failed the reasonable person test)
4) Collateral Source Rule: generally damages are not reduced because the
person has received benefits from another source (if Ps medical expenses
were covered by insurance, such evidence cannot be presented)

Punitive Damages
In general: awarded in dignitary and intentional tort actions; for negligence, must be
more than garden variety
Standard for punitive damages in negligence cases:
1) Party knew or had reason to believe that his/her act of negligence was
about to inflict injury (wanton disregard)
and
2) that he or she continued his/her course of conduct with conscious
indifference to the consequences (deliberate indifference)
Mathias v. Accor Economy Lodging, Inc: bed bug case: punitive damages are
appropriate for the policy reason of deterrence
General rules set out by Posner for awarding punitive damages: if conduct
1) is not likely to be prosecuted criminally
2) causes minor injuries (
3) poses serious harms that may be difficult to detect
4) is undertaken by pernicious defendants
What is excessive?
Tort Reform: robust review of punitive damages
1) statutory fixes: caps
2) constitutional limits: 14th amendment due process (D has a right not to be subject
to excessive punitive damages)

Joint Liability & Contribution

Derivatively imposed liability (blanket term): someone other than actor that
caused the tort is held liable

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Vicarious liability (respondiat superior) is most common

Partners on a joint venture
Joint and several liability
3rd party insurance

Concept of agency: when should superiors be responsible for agents acting on

--other behalf?
a) parents can be held liable for action of children if child is acting as parents
agent
b) usually an employment issue: respondiat superior (distinct from negligent
hiring/supervising)
c) Partners in a joint venture: common purpose between two parties: need to show
mutual right to control
d) Parent authority (idea of implied respondiat superior): even if acts were outside of
scope of employment
--often applies to people in uniform: off duty cops, security guards, food service
workers
e) Intentional torts: not usually subject to resp. sup because its is outside of scope,
except: --if force is authorized by an employer
--friction is encouraged
--business employee is in service of employer for business purpose
f) Independent Contractors: responsible for their own acts, general not going to have
actions attributed to hired employer EXCEPT:
--if acting as an employee
--if engaged in an inherently dangerous activity
Taber v. MaineNavy service man gets drunk on base and gets into car accident
while driving off base; Was Maine acting in line of duty when he engaged in negligent
conduct? Yes, respondiat superior applies and govt is vicariously liable (ct.
distinguished between a detour and a frolic, resp. sup. applies to former but not
latter)
Two separate tests for vicarious liability/respondiat superior:
1) Does conduct of defendant benefit his/her employee? Whether or not
action was furthering the monetary or institutional interests of employer,
whether or not employer asked them to engage in conduct; Narrow
2) Is conduct of defendant characteristic of employment? (more modern
approach, Taber v. Maine): is it part of what the job entails? Broad

Joint Liability and Contribution:

Contribution: permits tortfeasor whos paid more than fair share of damages to
indemnify another tortfeasor stems from policy concern of unjust enrichment
Joint and Several liability: full damages amount is paid by at least one tortfeasor if the
other is insolvent; ex: P sues 2 parties for 100K, each apportioned to pay 50k, but
party B is insolvent. Party A needs to pay P full 100k.

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Presence of joint and several liability does not foreclose comparative fault

III. INTENTIONAL AND DIGNITARY TORTS

ACT - INTENT - CAUSATION
A. BATTERY & ASSAULT
1. Battery: Prima Facie Elements
1) Act (volitional movement)
2) intent to cause contact (no need for intent to harm or offend)
a. DIRECT INTENT TO BRING ABOUT CONTACT or
b. OBJECTIVE KNOWLEDGE THAT SUCH CONTACT IS SUBSTANTIALLY
CERTAIN TO BE PRODUCED]
3) causation (did act cause the contact; contact with object may be enough, but
there much be physical contact
**doctrine of extended personality: battery can be established by contact with
anything so connected with the body as to be customarily regarded as part of
the others person (cane, hat, a plate, pulling a chair out from underneath a
person)
**contact includes that which interferes with reasonable sense of personal
dignity; if someone asks the other not to touch in a certain way, it is
reasonable to respect that others wishes
2. Assault: Prima Facie Elements
1) Act (volitional, can be verbal)
2) Intent to cause plaintiff apprehension of imminent harmful or offensive
contact (present, not future threat)
3) If act actually causes plaintiff to reasonably apprehend such contact (actual
not potential)
Justifications to intentional torts: burden of proof falls on the defendant;
any defense not raised is waived; comparative fault will not come up in a
pure torts case
Consent: analog to assumption of risk; defendant is not liable for otherwise
tortious acts if plaintiff consented to defendants act (express or implied)
--scope of consent: consent induced by fraud (to essential matter of consent)
or duress will not be valid
--general implied consent: inferred from circumstances (reasonable person)
--implied by law: emergency situations
--Koffman v. Garrett: 13 yr. old tackled by football coach; rule violations are
not probative, but not dispositive of consent (like custom), they do not set
scope of consent as a matter of law
--OBrien v. Cunard: woman on line for vaccinations sues doctor for battery
claims she never consented; If a mistaken inference of consent arises from
conduct of plaintiff, a consent defense may be recognized
*DOCTRINE*: consent as a defense if D actually and reasonably
believed that P consented to the conduct

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Self Defense: unique to intentional torts; proportional response
--when a person actually and reasonably believes that he/she is about to be
attacked, he or she has a right to defend him/herself from bodily harm
--difficult to use against defamation and IIED
--NECESSITY to protect oneself
--only for prevention of tort, never for retaliation
--Battered women syndrome: outlier
Defense and Recapture of Property
--Katco v. Briney: spring gun case: Privilege to defend property does NOT
weigh out harm to human life; property < human life and limb
--distinction: protecting dwelling that you and your family inhabit, right to
defend person is there
--key: proportionality of harm
--Recovery of chattels privilege: at your own [legal] peril

3. False imprisonment: intentionally confining someone against their will

4. Intentional Infliction of Emotional Distress: intentionally or recklessly causing
another to suffer sever emotional distress through outrageous contact

Intent Revisited
Unintended Consequences & Knowledge

Vosburg v. Putney: boy kicks schoolmate in the kneed while at school during
class hours; causes plaintiff school mate to be permanently lame; defendant
boy claims he did not intend to cause injury
--Court holds that the requisite intent for battery is not to cause
injury or harm, but merely intent to cause unlawful contact
--also confirms egg shell skull rule: tortfeasor responsible for all
injuries caused even if intent of extent of injury is not there
Cole v. Hibberd: defendant kicked friend playfully in the rear: ISSUE: is
defendant liable for battery if she did not intend to harm plaintiff?
--Court holds that intent to cause contact, not intent to injury,
constitutes battery
--Defendants conduct would be considered offensive to a reasonable sense of
personal dignity
--In general: to satisfy intent element in intentional torts, there must be an
intent to bring about offensive contact or an intent to act with
knowledge that offensive contact is substantially certain to be
produced

Transferred Intent: can be applied to Battery and Assault

In re White: defendant white intended to shoot William Tipton but missed and
hit victim instead; ISSUE: was Whites conduct intentional toward victim if
defendant did not actually intend to shoot him
--Court held White liable because of DOCTRINE OF TRANSFERRED
INTENT: although defendant must intend a contact with another
person that is harmful or offensive, the individual who actually

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suffers the contact need not be the person defendant intended to
contact
--applies to assault and battery but not usually for property torts

B. INFLICTION OF EMOTIONAL DISTRESS

Intentional Infliction of Emotional Distress:

Defendant engages in cruel mistreatment of plaintiff: abominable conduct

towards often vulnerable party
Do not need threat of imminent harm
Manifestation of physical harm is not necessary
Paradox: loosely defined to fill in gaps, but worrisome to judges because of
notice element
PRIMA FACIE CASE (really horrific facts)
o Act: extreme, outrageous conduct (beyond all bounds of
decency)
o Intent to cause plaintiff to suffer severe emotional distress OR
should have known that plaintiff would suffer from emotional
distress as a result
o Injury: Severe emotional distress must occur
Dickens v. Puryear: defendant lured plaintiff into remote area and brought
along four people to intimidate and threaten the plaintiff using handcuffs,
nightsticks; threatened to kill and castrate; cut off his hair;
o Plaintiff alleged IIED by defendant: that he suffered severe, permanent
mental and emotional distress AND physical injury to his nerves and
nervous system/other physical ailments
o Monetary loss: inability to work
o ISSUE: does evidence demonstrate that plaintiff suffered IIED (beyond
assault and battery)?
o HOLD: yes: future threats are actionable by IIED; defendants conduct
was willful, malicious, calculated, deliberate, purposeful; and the
conduct CAUSED plaintiffs injury
Littlefield v. McGuffey: rental agreement broken with plaintiff by racist
landlord, he continued to harass and threaten her, her sister, and her
boyfriend; ct. held that evidence was sufficient to establish IIED
o ELEMENTS OF IIED AFFIRMED:
Conduct must be extremely outrageous
Actor must intend to cause emotional distress
Conduct must ACTUALLY CAUSE emotional distress (physical
manifestation of emotional distress is not required)
Limitations
o First amendment: public figures subject to different standards (less
able to make use of IIEDsubject to more public scrutiny)
o Private funerals: speech that could be deemed offensive or outrageous
might be someone exercising freedom of speech (Snyder v. Phelps:
funeral of soldier, politically offensive language is not outrageous)

Negligent Infliction of Emotional Distress

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BL Rule: there is no duty to avoid emotional distress of another

UNLESS
o Intentional
o Parasitic to physical injury
o Zone of danger test (2 versions): defendant is subject to a duty to
avoid emotional harms arising from a risk of imminent physical
harm to the defendant; majority rule (Robb): need a physical
manifestation of emotional distress;
1. Defendants carelessness places plaintiff at risk of imminent
physical harm
2. Plaintiffs has contemporaneous awareness of the peril that
causes her to fear for her own safety
3. Fright actually causes physical manifestations that would be
elements of damages
Use zone of danger test to determine DUTY, then prove other
elements of negligence, including an injury that is VERY severe
emotional distress
Minority/Federal rule (Gottshall): same first two parts of
Robb test; no physical manifestation required
o Certain special relationships: parents and guardians over children,
morticians to families, doctors to families of patients
Beul: guardian/child relationship creates duty to avoid
emotional harms because their acts can likely cause emotional
distress
Restatement 3rd sect. 46placement in immediate danger of
bodily harm or it occurs
o Bystanders can recover if
Plaintiff and person physically injured were closely related
If plaintiff was present at scene of the accident
Plaintiff personally observes/perceives harm of related party
(not heard)
Impact rule: filler for fake claims; difficult to prove
o System has a duty to address these problems
o Medical advances

IV. STRICT LIABILITY/ LIABILITY WITHOUT FAULT

A. PROPERTY TORTS: relief sought is often injunctive
Trespass: actor causes tangible invasion of the land that is lawfully
possessed by another
1) INVASION: Defendant interferes with plaintiffs right of exclusive possession of
land
a. Land=on, above, or below the surface; overhead wires and tunnels
2) INTENT to perform an act that interferes with that exclusive right; voluntary
entrance
a. does not need to know that land is possessed by another
b. specific intent not required
c. mistake is not a defense
3) CAUSATION: invasion by defendants act actually caused exclusive possession
of owner to be violated; damages are presumeddoes not need to be shown

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*Is the act volitional? No need for intent to harm
*Trespasser can be liable even if he or she has behaved reasonably (Burns Philp)
*Notice or knowledge of trespass is not an element of prima facie case (Burns
Philp)
Injuries Parasitic to Trespass: are personal injuries compensable? Who is liable?
--Special subset of claimants can recover without showing carelessness by
defendant if injury is a product of trespass (Kopka v. Bell Tel. Co.unauthorized
digging led to homeowner tripping in hole and injuring himself)
Why bring under trespass rather than negligence?
--easier, less elements, more straightforward
Entrant may become a trespasser by moving beyond scope of consent
(Copeland v. Hubbardsneaky cat camera case):
1) Was consent voluntarily given? (no material fraud, duress, or coercion)
2) Scope
a. Physical: Leffler
b. Temporal: time limits
c. Purpose: what did possessor offer entrance for/to do?
Intermeddling: general term for any time physical damage to property exists,
conversion is most common
Wrongful acquisition: acquiring property through fraud

Necessity & Nuisance

NECESSITY: emergencies, no time for consent and withholding consent
under those scenarios would be crazy;
**as soon as necessity is terminated, so does the right to be on the persons property
**if on a property, legally by necessity, if damage occurs to the property while there,
you will be responsible for such damage
NUISANCE: a continuing and substantial interference with possessors use
and enjoyment of his or her land (beyond annoying)
--both parties may be involved in lawful, but incompatible activities
Private Nuisance: must be possessor of land
Substantial: objective: what is offensive to average person in the community
Unreasonable: severity of injury; does injury outweigh utility of Ds conduct?
Public nuisance: govt has standing and will bring suit
Interference with health, safety, and property rights of the entire community
*compliance with law is probative but not dispositive
*for D to win against injunctive relief: must show that Ds injunction presents extreme
hardship that outweighs Ps enjoyment and use of property
*economic argument will not usually outweigh over use and enjoyment of land
*Factors can be used for public and private nuisancein relation to pub: the only
parties that have standing are govt and municipalities

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*Coming to the nuisance is not dispositivemust look to overall character and
expectations of enjoyment of property

B. ULTRAHAZARDOUS ACTIVITIES
Certain types of harm are subject to strict liability: no inquiry into fault
PRIMA FACIE ELEMENTS OF STRICT LIABILITY
Absolute duty on part of D to make condition safe
D has failed to make condition safe
Ds conduct was actual and proximate cause of injury
Generally applied to
Keeping of wild animals (Domesticated animals known to be dangerous
treated as wild animals)
Use of explosives and/or radioactive materials
Keeping of reservoirs
IN GENERAL: Ultrahazardous activitiy involves substantial risk of serious harm to
person or property no matter how much care is exercised (fireworks)
Restatement factors to determine whether an activity is abnormally dangerous:
Existence of a high degree of risk of some harm to the person, land or chattel
of others (probability)
Likelihood that the harm that results from it will be great (scale)
Inability to eliminate the risk by the exercise of reasonable care
Extent to which the activity is not a matter of common usage
Inappropriateness of the activity to the place where it is carried on
Extent to which its value to the community is outweighed by its dangerous
attributes (dont want to deter socially beneficial activities)
Defenses:
Statutes of limitations
Govt immunity test
Assumption of risk

V. PRODUCTS LIABILITY

Traynors strict products liability testapplies to tangible products

Place a product on the market
Product has a defect

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Manufacturer knows product will be used without inspection
Product causes injury during its normal use
Traynors arguments:
MacPherson: warranty of safety is not contractual, but a free standing concept
Policy arguments: which party is in most advantageous position to reduce
harm to human life and limb?
Procedural fairness: negligence is much too difficult to prove (what about
experts?still very difficult for injured party to prove negl.)
Compensation: manufacture in better position to spread the loss
Consumer protection: consumer has fundamental right to safety
General rule: Manufacturer is strictly liable in tort when an article he
places on the market, knowing that it is to be used without inspection
for defects, proves to have a defect that causes injury to a human being
having been used in the way it was intended
Privity is NOT required
Design defect: risk v. utility test: NY is most common
1.
2.
3.
4.
5.
6.

utility of design to public

utility of design to plaintiff
likelihood of harm associated with the design
availability of safer design
feasibility of producing safer design
what is consumers knowledge of design

Warning defect: adequate to warn party: was warning effective?

1.
2.
3.
4.

Specificity
Proper placement
Large/visible enough
In the right languages

DEFENSES:
Assumption of risk: complete
Causation (usually only form of redress for manufacturing defect)