1 TORTS

Intent: Knowing with a substantial certainty that the act will bring about a certain
harm.

INTENTIONAL TORTS:
Battery: The intent to cause a harmful or offensive touching of another’s person or
body.

Assault: The intent to cause imminent apprehension of a harmful or offensive

touching. P must be aware.

False Imp.: The intent to confine another against his/her will within fixed boundaries
with no reasonable means of egress. P must be aware of confinement.

I.I.E.D.: The intent to act outrageously and extreme to cause severe emotional
harm. In Florida, P must have a manifestation of emotional harm.

Trespass
to Land: The intent to be on the land, or force someone or something to be on the
land that P is the owner of, and you have no privilege to be on the land.

Trespass
to Chattels: An intentional act to intermeddle with another’s chattel in which the chattel
is harmed and/or owner is deprived use of for a substantial time or bodily
harm is caused to possessor.

Conversion: Intent to exercise dominion or control over chattel which permanently or

substantially deprives an owner of his possessory interest. Seriously
interfere with right of owner. D will pay for full value of chattel. Chattel
probably cannot be repaired.

PRIVILEGES/DEFENSES:

Consent: A verbal or non-verbal voluntary act in which a reasonable person agrees

for conduct to occur.
Can be: 1. Vocal
2. Actions - woman raised her arm for vaccination
3. Silence or inaction
4. Surrounding circumstances - football players

Self-Defense: If you don’t act in a reasonable and proportionate way you will
become a victim of a tortious act.
 1. Can use reasonable force.
2. Must retaliate if no longer threatened. If aggressor tries to
escape or withdraws.
3. Must have reasonable belief that if you don’t act you’ll be victim.
4. Provocation - need more than just words.
5. Retreat is only necessary when using deadly force. May stand
your ground.
6. Not liable when you injure a 3rd person when using self-defense.

Defense of
Others: May use same amount of force as if you were the person
being attacked. Must know who aggressor is, if mistake is made,
NO privilege. Can only use the same amount of force as the
person trying you are trying to defend.

Defense of
Property: May use reasonable force to expel another or a chattel from
imminent intrusion of his land. May not be deadly force unless
intrusion threatens death or serious harm. Must request intruder to
leave. Minimal amount of force to terminate intrusion. If intruder
mistakenly sets foot on property, you have no defense against him.

Recovery of
Property: May use reasonable non-deadly force to recover personal
property wrongfully taken as long as actor is in “hot pursuit”.
Mistake if reasonable is no defense.

Necessity: May committ a tort in order to prevent threatened harm to

public.

Public: Occurs when a public official or a private citizen reasonably

believes that action is necessary to prevent severe harm to the
public. Class of people being protected must be the “public as a
whole” or a substantial amount of people. (Set house on fire to
prevent the spread of fire to neighboring homes.)

Private: If D reasonably believes that action is necessary to

prevent harm to one’s self or to a small number of people he will
not be held liable for any actual damages caused by his actions.
(D tied boat to P’s dock as a result of a storm and was held liable
for damage to dock, but not for trespass.)

NEGLIGENCE:
Definition: The inadvertent or unintentional failure to exercise that care which Herman
would.

!One is liable for negligence when one owes a duty, breaches that duty, and
causes harm to the other as a result.

To whom do you owe a duty?

!Those you know you will affect.

!Those you are substantially certain you will affect:
- those in the zone of danger
- those you “at once know”
- those in the range of apprehension
!Those with whom you have a preexisting relationship with:
- privity in K
- family members
!Those the legislature wanted to protect thru making behavior criminal.

What duty do you owe?

!Herman (reasonably prudent person)

- what a reasonably prudent person would do under the same or similar
circumstances.
- B < P x L (Burden is less than the Probability times the Harm)

Intoxicated person - owes a duty of Herman

Person with physical disability - owe duty of Herman with same disability.

If you’ve created the peril (dangerous situation), then you have a higher
standard of care. Don’t have the luxury of acting like Herman.

Child - what a reasonably prudent CHILD of same age, intelligence, maturity,

training and experience would do under same circumstances.
- when child is engaging in adult activity or operating mechanical
machinery the child is held to the Herman standard.

Ill person - owes a duty only if there is knowledge or forwarning

(epileptic/sleeping pills).

Professionals - what a reasonably prudent doctor (of specific specialty)

in good standing would do under the circumstances (minimum level
required).
 P must show Dr. failed to inform him of risk before getting consent for tx.
That if P was informed, he would not have consented to tx.
That the adverse consequences that were not made known did in fact
occur, and P was injured by submitting to treatment.
Must have expert testimony to establish this minimum standard of proof.

Common Carriers - Owe a higher duty of care; liable for slight negligence.

Landowners - Owe a duty to warn or remove obvious dangers.

!Invitees: One who’s primary purpose for visit is for owners benefit.
(Customers in a store, business purposes)
DUTY: Reasonable Care to warn and inspect. (Not to set traps, warn of all
dangerous conditions, even you don’t know of danger, can still be held
liable)

!Licensees: One who’s primary purpose of visit is for the interest of a 3rd party or
themselves.(Social guest, sales person)
DUTY: Must warn of known dangers, not to set traps, doesn’t have to inspect.

!Trespassers: One who’s not legally allowed on premises.

DUTY: Not to set traps. Cannot intentionally, recklessly injure.

NEGLIGENCE PER SE:

!The violation of a statute creates a duty on D.

!Must have harm.

!Prevails over Herman standard.

!P must fall within protected class.

!Statute must be designed to prevent this kind of harm.

EXCEPTIONS: compliance would be more dangerous and therefore, violation of

statute is permissible or that compliance is impossible.

When is duty breached or violated?

!When you behave as Herman would NOT.

!When you violate a criminal statute.
!When professional falls below the minimum accepted standard.
!When a child does not behave as appropriately for her age, intelligence....
!When a common carrier or innkeeper fails to act as a “trustee”

Once D has been negligent, must now prove Causation:

!CAUSATION: Need to prove both Cause in fact AND proximate cause to be

liable.

CAUSE IN FACT:

!When BUT FOR your act, the injury would not have occurred. When if Herman
had acted, the injury would not have occurred.

PROXIMATE CAUSE (or cause at law):

!Type of harm Herman would worry about. The type of harm that is foreseeable.
If unforeseeable, then let D go!
!When the harm was the same that the legis. was concerned with.
!When the harm is of the same type as the “L” in Hand’s equation.

Eggshell skull rule: you take the person as you find them - all you have to foresee is
is an injury, you don’t have to foresee its extent.

!INTERVENING CAUSE: happens between time of D’s negligence and P’s injury,
act of 3rd party or thing (entity).

Must be SUPERCEDING: (Not foreseeable, if so, cuts off liability)

What is superceding? - 3rd party commits an intentional tort or criminal act.
- can be an act of God or nature.
- as long as it breaks the chain of causation in terms
of the D.
- Intentional tort acts are unforeseeable.
- strict liability acts are foreseeable.
- negligent acts are foreseeable.

YOUR ACT IS NOT THE PROXIMATE CAUSE OF HARM IF:

!An independant cause in fact occurs after your act and before the harm AND:
!You could not foresee the independant cause in fact at the time you acted.

Multiple Causes:

!Concurrent causes: Use Substantial factor test. “But for Both” stated
 actions, it is more likely than not that P would not have sustained the
injury. Each D in a multiple D tort, will be responsible for the entire result
when separate acts of negligence combine to produce directly a single
injury. Eg: large fire goes into a smaller one.

!If Substantial factor test fails and we know one of the D’s had to be
responsible, then the burden of proof shifts from P to D.
D’s percentage of the Market Share which they own.
D’s must show they did not sell a product or that their market
share is as great as P alleges.
P must define market and show that it is more likely than not that
at least one of the multiple D’s P is suing could have caused harm
to P.

To prove Negligence:

DIRECT EVIDENCE: Produce guy from Publix testifies he spilled juice and did not
clean it up.
CIRCUMSTANTIAL: Showing a dirty banana peel, stain on clothing.

RES IPSA LOQUITOR:

!The thing speaks for itself. When an injury occurs and no evidence to point to anyone
specific.

Must prove: 1. D had exclusive care, custody and control of the instrumentality.
2. Type of harm that wouldn’t have happened unless someone was
negligent.
3. P did not contribute to event.

In surgery situations: 1. Must have a surgery

2. General anesthesia
3. Injury has to be unrelated to the surgery.

EXCEPTIONS: 1. Vicarious liability: Hotel is responsible for employees.

Negl act must be completed within scope of one’s
employment.
2. Integration of function: relationships which are integrated.
3. Concert of Action - RIL may possibly arise.

DEFENSES TO NEGLIGENCE:

Joint and Several Liability: - where 2 or more D’s act in concert, they are jointly
 and severally liable. P can sue either, or both of them. P is entitled to recover the
entire amount from either or both.

Rescue Doctrine: Danger invites rescue. If rescue is foreseeable, original D is

liable.

!Contributory Negligence: If P fails to exercise ordinary care, recovery is barred.

- Contributory Neg will not bar recovery if you show that
the D had the Last Clear Chance to avoid injury.

!Comparative Negligence: Recovers damages based on percentage of fault attributed

to each party.
PURE: Each person recovers damages less whatever % they were negligent.
SLIGHT/GROSS: If B’s negl is NOT slight in comparison to A’s, NO RECOV.
50/50: If A’s negl is less than that of B, A recovers, B does not.

!Assumption of Risk:

Express: (K’tual) P has assumed the risk of negligence and D cannot be liable if:

1. There was equal bargaining power.

2. P doesn’t lack capacity to enter into agmt.
3. K has to be in the interest of the public.
4. Cannot K out of intentional or reckless torts.

Implied: D must show that the P’s actions demonstrate that she knew of the risk in
question and voluntarily consented to bear that risk.

1. There is a risk of harm caused by D.

2. P has knowledge of risk.
3. P voluntarily accepts this risk.

Involuntary: P is not barred from recovery - saving a child from a burning house.

Voluntary: P is barred from recovery - saving hat from burning house.

There is a duty by P to mitigate damages which could occur.

STRICT LIABILITY:
!Allows for liability without fault.

DUTY: - those in the zone of danger of activity.

 - those with whom you have a preexisting relationship with.
- those you know you will affect.

Duty is violated by simply engaging in the act.

CAUSATION: - Cause in Fact: When the harm would not have occurred if you
had not engaged in the activity (but for).

- Proximate cause: When the harm is the same as threatened by

the hazardous nature of the act.

SUPERSEDING INTERVENING CAUSE:

- An independent cause in fact occur after your act and before the
harm AND:
- you could not foresee the independent cause in fact at the time
you acted.

 Strict liability deals with: 1. Animals

2. Abnormally dangerous activities
3. Products liability

ANIMALS: - Domestic - Animals kept as pets, if it has vicious tendencies, then you
are liable. Must know animal to be dangerous. Not liable if there is a
warning sign that says “Bad Dog”

- Wild Animals - Owners may be held strictly liable.

- Domesticated Animals - Strictly liable once it leaves your property

ABNORMALLY DANGEROUS ACTIVITIES: (Blasting, oil rigs)

- Owner is strictly liable

- Harm caused must be within risk - foreseeable.
- No strict liability if there is an unusual result from the activity that
normally occurs.

Elements:
!Is the risk of harm great?
!Severity of harm
!The risk will materialize even if reasonable care.
!The activity is not one of common usage or custom.
!Was the activity inappropriate to the place in which it took place (location).
!Is the value of the activity to the community great enough to offset its unavoidable
 risks? (Necessity/luxury distinction must be made here).

Non natural use of land: In quantities and in a manner that could cause harm. Eg: a
fire not in a fire place.

Act of God is not a defense, instead it created a proximate cause (cause at law)
problem, not foreseeable. Excessive water due to a hurricane causes flooding - no
strict liability, but may be negligent if dam broke due to lack of care.

DEFENSES TO STRICT LIABILITY:

!P voluntarily assumed the risk - no strict liability.

!P involuntarily assumed the risk - strictly liable.

PRODUCTS LIABILITY:

Players in products liability:

!Manufacturers
!Retailers
!Consumers
!Bystanders

Theories of Liability:
!Intentional Tort
!Negligence
!Strict Liability
!Warranties

!Negligence: look for: DUTY, BREACH OF DUTY, CAUSATION, DAMAGES/INJURY

- negligent design of the product, all products apply

- negligent manufacture, this product is defective
- negligent warnings, no warnings or inadequate warnings
- negligent inspections

Who can sue:

- Anyone in the foreseeable zone of risk, including bystanders

Who can be sued:

- Manufacturers, almost always
- Retailers/wholesalers, almost never

What kind of injury:

 - damage to product
- damage to person
- damage to another product
- damage to person’s property

If you could have cured the defect for a minor amount of money relative to the risk
involved, you should have cured it. A warning cannot save you if you thought that
was the cure. (Eg. Highly flammable clothing with warning label, if you could have
prevented the clothing from being flammable, then you can be sued.)

!Strict Product Liability: A person is strictly liable for selling a product that is in a
defective condition unreasonably dangerous to a consumer,
and the product harms the consumer or his property.

1. Product is defective - does not work the way consumer expects.

2. Product is unreasonably dangerous - Herman would not have marketed it.
3. Product causes physical harm - Not property damage.
4. Seller must be in business of selling that kind of product - Manufacturer or retailer.
5. No substantial alteration of product by consumer

Is the product unreasonably dangerous?

!Does the product meet consumer expectations

!Can the product be made safe
!What would the cost be
!Should the product be marketed
!If the product can’t be made safe then can use “warnings”
!Question for the jury

Defenses: !State of Art Defense: accidents occur because there are reasons
we could not anticipate or know
!Misuse of product: not using product for its intended use.

!Warranties:

-Express: Expressly states the goods have certain qualities

-Implied: 1. Merchantibility: fit for ordinary purpose

2. Fit for Particular Purpose: buyer relies on sellers
recommendation.
NUISANCES:
TESTS: 1. Is there a substantial interference with use and enjoyment of property.
2. Is the act reasonable given the locality.
3. What is reasonable.

INJUNCTIONS ARE PRIMARY GOAL, NOT DAMGAGES.

!PUBLIC: an unreasonable interference with a right common to the general public.

Elements to the violations of rights:
- Public health
- Peace
- Comfort
- Convenience
- Safety

!PRIVATE: a non-trespassory invasion of another’s interest in the private use and

enjoyment of land.

LOOK AT: 1. Does P have an interest in the land.

2. The interference must be unreasonable and substantial
3. Was D’s conduct negligent, abnormally dangerous or intentional
(knows with substantial certainty that the interference will
occur).