PLAIN OLD NEGLIGENCE!!! / offense against / offense against / TURN OVER EVERY LEAF!!!
1 / 1 / possession / 1 / ownership / 2 / 2
Battery / Trespass / Conversion / Offensive Battery / Assault
intentional entry/substantial certaintyConversion requires attempt by 3rd party to claim ownership
conversion: converting real P into personal P / treating someone else's P as your own / DEFENSES TO INTENTIONAL TORTS / trespass to chattels: vandalism (lesser offense) no intent to harm/claim owner req'd
no changing locks, breach
3 / 5 / 5 / 6 / 6 / of peace / 7 / 7 / 8
implied consent (medicine & sports) / insanity (not a defense) / self-defense (even w/ 3rd party) / defense of property (only force necessary) / recapture of chattels (only if no claim of right) / necessity (servant cuts rope loose) / false imprison-ment
(awareness?) / intentional infliction of emotional distress
illegal boxing, rule infractions / Jewelry store / no spring guns / OK if force/fraud / privileged, but Ds / shoplifting, missed train
STRICT LIABILITY VS. NEGLIGENCE: HISTORY / ANALYTICAL IMPORTANCE / READ CAREFULLY!!!
escape of dangerous substance
10 / 11 / 12 / 13
Early Cases (e.g. Thorns, inevitable accident, lighted squib) / / Modern Approach (e.g. dogs and stick, Rylands) ultrahazardous activities / American Cases Rylands/Cairns as reasonable/unreasonable / Recent Hard Cases Bolton v. Stone (low risk events), epileptic driver
parents not vicariously liable, but special duty? negl.? / is (1) intention unlawful (2) at fault / Bramwell right to be free of foreign water Blackburn likelihood of mischief
THE CONCEPT OF NEGLIGENCE / if it escapes Cairns natural vs. unnatural
adults, elderly, children, disabled, mentally ill Batman (foreseeable) / Osborne: 1) purpose of statute 2) protected class 3) w/in type of accident
14 / / 15 / 15 / 17 / 18 / 19 / 21 / / 23 / 23 /
reasona-bleness standard (haystack) / sudden emer-gency doctrine / calculus of risk (B<PL) (bargee) / customary care (TJ Hooper) / custom in medical cases / informed consent (AIDS blood) / violation of criminal statutes / dram statute liability / Res ipsa loquitur (nondele-gable duty)
also weed burning near / disfavored / including kid saved on train tracks, man dies; powerline/Tel. / + conditional
PLAINTIFF'S CONDUCT (things you can do to screw up chances of recovery) / res ipsa
P boundary / res ipsa (1) usu. negl. (2) exclusive control (3) no contribution /
27 / 29 / 29 / Bernina / 30 / fellow servant / 31 / 31
contributory negl. (speeding horse, pole) / last clear chance (wagon on tracks, man ran over 3x) / imputed contrib. negl. (but not even fellow empl.) / assumption of risk (primary, secondary) / arbitration clauses / comparative negligence (e.g., pure, modified)
not empl. dangers fishmeal platform collapse no causation / "community of interest" / vibrating hatchet rack, fellow servant, flopper, ice rink
MULTIPLE DEFENDANTS (plus vicarious liability)
/ also not wearing seatbelts / direct negl. theory, hostile work environ. e.g. goosing
32 / only when both definitely contributed / 34
Joint and Several Liability (differs by state) / Vicarious Liability ("Respondeat Superior") (joint enterprise)
CA – J&S with contribution – each still 100% liable / incl. negl. indep. K doing dangerous work
CAUSE IN FACT / HMO – apparent/implied authority
court as expert witness / also ER Dr. / newspaper boy
37 / 38 / 38 / 38 / "gatekeeper" / 39 / 40 / 41
Rescue at Sea (no life buoys, butcausation?) / Statutory Violations
Negl. per se / Slip and Fall (but no Ds for lesser precaution, tub) / Products Liability seat belt 2 theories, drugs, asbestos / / Lost Chance Doctrine (Herskovits) / Multiple Causes, Apportionment market share liab
42 / Osborne (poison, p. 21); pharmacy overdose / Bendectin, exposure?, weird mice studies / concert of action 41/42(Sykes)
jumping to avoid accident / PROXIMATE CAUSE AND THE SCOPE OF DUTY
Cardozo: danger invites rescue / 3 theories (1) directness (2) foreseeability (3) harm w/in risk
42 / 43 / 43 / 44 / 45 / 43 / 46 / 46 /
fire cases (usually only 1st house it spreads to) / coincidence tree falls on speeding train / foreseeable intervention train past stop, rape; dynamite caps; match gas spill; things stolen from train / Polemis (plank hits boat) directness / Palsgraf – explosives no duty to party harmed / until situation stabilized (e.g. wreck) / Wagon Mound (foresee-able Ds)
even intentional tort doesn't necessarily break causal chain / see also rescue / US standard:
/ ATTRACTIVE NUISANCE? / SPECIAL DUTIES OF CARE / RR / harm w/in risk: negl. foreseeable
Ds w/in foreseeable type not degree
Important anytime someone is hurt / on someone else's P / implied licensee? / watchman
47 / 49 / foreseeable? / 51 / e.g. Moch, hydrant / 54 / / (boat loose)
Rescue situations / Possessors of Land / "Gratuitous" Promises / Special Relationships
(1) invitee (2) licensee (3) trespasser / increased harm or reliance / psych. Tarasoff; disk jockey; college, business, landlord
Note: DO NOT apply comparative negligence analysis to strict liability!!! / POCKETS OF STRICT LIABILITY
assumption of risk / harm w/in risk, mink CyanamidDs, lessor or lessee?
56 / 57 / 59 / judges decide / 62/67
Trespass/Conversion (spleen, wine barrels) / Dangerous Animals dogs, cattle fence range / / Abnormally Dangerous Activities (explosives) / ? of law / Nuisance (Private and Public) (unreasonable?)
requires actual Ds (can be caused by 3d parties, thieves) / exception to eggshell skull rule
Design defects/warnings negl. analysis (some juris. allow comparative negl.) / PRODUCTS LIABILITY (see also causation) / usually any substantial harm
components e.g. concrete / unreasonable
68/71 / cannot sue sub / 73 / no suit against sub / 76
Restatements §402A consumer contemplation; 3d Rest. negl. analysis / Manufacturing and Design Defects, e.g. used, second collision, obvious danger / Inadequate Warnings (birth control & vaccines, sufficiency of warnings)
Casa Clara – no Ds for pure econ. losses, e.g. D to product itself (salty concrete) – only for D to other P/injury / fan in car, VW seat, bulletproof vest, printing press / baby oil, do not breathe
/ DAMAGES / DUTY TO MITIGATE / BE SPECIFIC IN
DISCUSSING Ds!!!
also % likelihood not working
78 / cook injured: adjust / for inflation (discount rate/wages) / 79 / wanton, reckless / apply accurately to facts
Compensatory (loss of enjoyment, per diem, taxes) / Punitive (1) actual knowledge (2) disregard; BMW paint case
Jeanette Goldsberry's Case / Rules Outline – Torts
I.INTENTIONAL TORTS1
Sykes' Definition of Battery1
Battery, Trespass, Conversion where Bad Results Unintended1
Offensive Battery2
Sykes' Definition of Assault2
Assault2
II.DEFENSES TO INTENTIONAL TORTS3
Medicine – Implied Consent / Emergency and Non-Emergency3
Implied Consent – Sports (also Statutory Rape)4
Insanity Defense – (basically, there isn't one)5
Self-Defense5
Defense of Property6
Recapture of Chattels6
Necessity7
False Imprisonment7
Intentional Infliction of Emotional Distress8
III.STRICT LIABILITY VS. NEGLIGENCE: HISTORICAL EVOLUTION AND ANALYTICAL IMPORTANCE10
Early Cases10
The Modern Approach Emerges11
American Cases (Frosty Towards Rylands)12
Some Recent Hard Cases13
IV.THE CONCEPT OF NEGLIGENCE14
Reasonableness Standard (Adults, Elderly, Children, Disabled)14
Sudden Emergency Doctrine (Disapproved – Factor in Negligence)15
Calculus of Risk15
Customary Care17
Custom in Medical Cases18
Informed Consent19
Violation of Criminal Statutes21
Dram Statute Liability (Varies Widely by Jurisdiction)23
Circumstantial Proof (Res Ipsa Loquitur) and Related Matters23
V.PLAINTIFF'S CONDUCT27
Contributory Negligence27
Last Clear Chance (Disfavored in Comparative Negligence)29
Imputed Contributory Negligence (Only If Community of Interest)29
Assumption of Risk30
Arbitration / Indemnification Clauses (Sometimes Unenforceable)31
Comparative Fault31
VI.MULTIPLE DEFENDANTS32
Joint and Several Liability – Differs Widely by State32
Vicarious Liability ("Respondeat Superior")34
VII.CAUSATION37
Cause in Fact – Rescue At Sea37
Cause in Fact – Statutory Violations38
Cause in Fact – Slip and Fall Cases38
Cause in Fact – Products Liability (Including Medicine)38
Cause in Fact – Multiple Possible Causes, Apportionment40
Proximate Cause and the Scope of Duty42
VIII.SPECIAL DUTIES OF CARE47
Rescue Situations47
Possessors of Land49
"Gratuitous" Promises51
Special Relationships54
IX.POCKETS OF STRICT LIABILITY56
Intentional Torts Revisited (Trespass/Conversion)56
Dangerous Animals57
Abnormally Dangerous Activities59
Nuisance – Private62
Nuisance – Public67
X.PRODUCTS LIABILITY68
The Restatements68
Manufacturing and Design Defects Conceptualized73
Inadequate Warnings76
XI.DAMAGES78
Compensatory Damages78
Punitive Damages79
Jeanette L. Goldsberry
Cases and Rules for Torts.doc
Jeanette Goldsberry's Case / Rules Outline – Torts
I.Intentional Torts
Sykes' Definition of Battery
A harmful or offensive contact with a person resulting from an act that is intended to cause the plaintiff or a third person to (a) suffer that contact; or (b) suffer apprehension that such a contact is imminent.
Battery, Trespass, Conversion where Bad Results Unintended
Vosburg v. Putney (1891) (p. 4) (weak boy kicked at school, microbes)
Unlawful touching intended to cause harm adequate for battery, even if harm intended is milder than harm that occurs.
Garratt v. Dailey (1955) (p. 7) (arthritic lady, kid pulls chair away, she falls)
Even if you do not directly contact someone and cause their injuries, if you do something which will cause them offensive contact there is a battery.
Restatement (Third) of Torts – RTT:GP §1 INTENT (p. 8)
Talmage v. Smith (1894) (p. 9) (stick thrown at trespasser, 3rd party injured)
If A intends to hit B and hits C, A responsible for C's injuries – Transferred Intent.
Sykes' Definition of Trespass
Entry on property has to be intentional for trespass (not like a polluter accidentally having pollution seep onto your property). However, if the polluter knows with substantial certainty that the pollution will seep onto the property, then the polluter has trespassed.
Dougherty v. Stepp (1835) (p. 9) (generic example)
Any unauthorized, and therefore unlawful, entry is trespass.
Brown v. Dellinger (1962) (p. 10) (children ignite fire in grill while trespassing in garage)
"Knowledge" requirement fulfilled – children trespass, start fire with matches, responsible.
Cleveland Park Club v. Perry (1960) (p. 10) (ball inserted in pool drain; suction; disaster)
Intent requirement is to commit act and not intent to cause harm.
Maye v. Tappan (1863) (p. 11) ( tells property is 's; mines gold; restitution to )
If trespass/conversion unintentional, restitution allowed (less labor/extraction, no punitive)
Offensive Battery
Alcorn v. Mitchell (1872) (p. 65) ( spits at close of court case; awarded Ds)
Malicious spitting is offensive battery – damages awarded for lost dignity.
Restatement (Second) of Torts – §18 BATTERY: OFFENSIVE CONTACT (p. 66)
Respublica v. De Longchamps (1784) (p. 66) (French ambassador insulted)
Strike cane – insult – battery, if intentional.
Richmond v. Fiske (1893) (p. 66) (Crazy milkman enters house, awakens – battery)
Mad milkman – enters house, shakes awake to present bill – trespass and battery.
Sykes' Definition of Assault
An act done with the intention to cause a battery, or apprehension of imminent battery, which creates such an apprehension.
Assault
I. de S. and Wife v. W. de S. (1349) (p. 61) (tavern door struck, then ax waved)
struck door of closed tavern with hatchet; stuck head out and ordered him to stop; again swung hatchet in threatening manner (did not hit woman); assault but not battery.
Tuberville v. Savage (1669) (p. 62) (I would strike you if the judges weren't in town…)
If a condition is placed on a threat that, if taken at face value, prevents its fulfillment in the immediate circumstances, the act is not assault. There has to be present intent to harm.
Allen v. Hannaford (1926) (p. 62) (crazy landlady enforces lien on furniture w/gun – Ds)
Assault with unloaded gun still assault – causes apprehension.
Brooker v. Silverthorne (1919) (p. 64) (crazy man threatens telephone operator, no Ds)
Even when conduct objectionable, conditional threats cannot be taken as unconditional.
Restatement definition of Assault – §21. ASSAULT
II.Defenses to Intentional Torts
Medicine – Implied Consent / Emergency and Non-Emergency
Mohr v. Williams (1905) (p. 12) (right ear operated on instead of left – nominal Ds)
Generally, implied consent in surgery is only given for actions related to the specific invasion of the body necessitated by the surgery. You cannot operate on left ear if permission given for right, unless it is an emergency.
Allore v. Flower Hospital (1997) (p. 14) (generic example)
Implied consent in emergency – a legal fiction, under assumption would consent if able.
Kennedy v. Parrott (1956) (p. 16) (cysts punctured during appendectomy; phlebitis; no Ds)
If general surgery, minor problem noted as result of incision, implied consent given for routine correction, even if bad (unusual) side effect occurs.
O'Brien v. Cunard Steamship Co. (1891) (p. 16) (smallpox vaccination #2 for immigrant)
If you act as though you consent, even if you don't verbalize it consent is given.
Bonner v. Moran (1941) (p. 17) (generic example)
Parental consent necessary for operations on children.
Life Support / Physician-assisted suicide
OK not to use extraordinary measures to keep someone alive, but physician-assisted suicide not OK. (pp. 18–19) – but States have a right to regulate, and require proof that the person would have likely consented if able (Cruzan v. Director…, 1990) (p. 20–21).
Lausier v. Pescinski (1975) (p. 19) (kidney not taken from incompetent to save brother, guardian wouldn't consent)
Guardian must approve of damage to incompetent to save life of someone else.
Strunk v. Strunk (1969) (p. 19) (kidney taken, guardian agreed)
Court allowed transplant of kidney in similar case where guardian consented.
In re A.C. (1990) (p. 19); In re Baby Boy Doe (generic example)
In parent-fetus conflict, woman's decision not to have caesarean section respected, even when it could result in harm to fetus.
Maharam v. Maharam (1986) (p. 21) (wife gets herpes from husband, no Ds)
Venereal disease transmission not actionable unless fraud involved (non-disclosure).
Implied Consent – Sports (also Statutory Rape)
Hudson v. Craft (1949) (p. 22) (Illegal boxing case, promoter can be sued for Ds)
You cannot consent to an illegal act, and pari delicto (equally at fault) does not apply when statutory violation of a third party is proximate cause of injuries – third party liable.
Hart v. Geysel (1930) (p. 25) (volunteer suffers no wrong, opposite view from Hudson)
Dissent to above view in Hudson (Restatement adopted this dissent) – no cause of action.
Barton v. Bee Line, Inc. (1933) (p. 25) (underage woman seduces man)
No civil cause of action for statutory rape (suing employer for behavior of employee).
Hackbart v. Cincinnati Bengals, Inc. (1979) (p. 25) (football injury due to broken rule)
s in legal sporting events consent to injury from blows administered in accordance with rules, but not blows that are deliberately illegal.
Nabozny v. Barnhill (1975) (p. 26) (goalie injured in non-professional soccer game)
Same as Hackbart above also applies to non-professional sports.
Third Restatement of Torts – §2. RECKLESSNESS
(This is a way around the implied consent defense for willful rule violations in sports.)
Turcotte v. Fell (1986) (p. 27) (minor, typical rule infractions – jockey not liable)
Normal, typical infractions (as opposed to willful, reckless infractions) not actionable.
Gauvin v. Clark (1989) (p. 28) (hockey game rough – not actionable if within norm)
Even bad infractions, with a degree of recklessness commensurate with the nature of the sport, are not actionable, so long as they are not willful, wanton or reckless.
Marchetti v. Kalish (1990) (p. 28) (kids playing kick the can, rule broken, no Ds)
No liability for rule infractions in informal children's games unless reckless or intentional.
Ford v. Gouin (1992) (p. 29) (barefoot water skier injured by boat maneuver, no Ds)
In inherently risky sports, when does something, reckless outside of the context of the risky sport, that causes injury to , no cause of action, so long as no intent.
Cheong v. Antablin (1997) (p. 29) (snow skier not liable for Ds to from rule infraction)
Another skiing accident (snow skiing) – again, no cause of action, without solid proof of recklessness (not mere rule infraction). Assumption of risk, by participating in snow skiing.
Insanity Defense – (basically, there isn't one)
McGuire v. Almy (1937) (p. 30) (nurse gets Ds for injuries from insane private patient)
In general, no insanity defense in intentional or unintentional torts (as long as there is some, albeit skewed, intent – but not generally capable of defamation and malicious prosecution). (However, defense in criminal law.) Also, no assumption of risk in private mental healthcare situations (not true in public).
Polmatier v. Russ (1988) (p. 33) (crazy man kills father in law – civilly liable)
Another more extreme insanity case (killed father-in-law) – civil liability, but not criminal.
Gould v. American Family Mutual Insurance Co. (1996) (p. 33) (generic example)
Party that causes loss should bear loss, when neither party guilty through intent (re insane).
Self-Defense
Courvoisier v. Raymond (1896) (p. 34) (jewelry store robbery; cop accidentally shot)
In legitimate cases of self-defense, a defendant is not liable for unintentionally harming an innocent third party, so long as behavior reasonable under circumstances.
Morris v. Platt (1864) (p. 36) (generic example)
The accidental harming of an innocent bystander by force reasonably intended in self-defense to repel an attack by a third party is not actionable.
Restatement – RST §75 – HARM TO THIRD PARTIES IN SELF-DEFENSE
Boston v. Muncy (1951) (p. 37) (fight over automobile heater sale during WWII)
does not have to be in danger of great bodily harm, only bodily harm, to use self-defense.
Defense of Property
M'Ilvoy v. Cockran (1820) (p. 38) ( trespasser tearing down fence; force not justified)
"[I]n defense of possession a wounding cannot be justified."
Green v. Goddard (1795) (p. 39) (generic example)
Respond to force with force; respond to trespass with warning, then force.
Bird v. Holbrook (1825) (p. 40) (garden, bulbs being stolen, spring gun set – excessive)
You cannot booby-trap your property without warning, with the intention of wounding trespassers. Some kind of warning must be given, so that intention is deterrence not revenge.
Katco v. Briney (1971) (p. 44) (spring gun injures trespasser in home; also excessive)
Reasonable force to protect property, but not to take human life or inflict great bodily injury.
Restatement (Second) of Torts – §85 USE OF MECHANICAL DEVICE THREATENING DEATH OR SERIOUS BODILY INJURY (p. 46)
You can use force proportionate to crime – you can booby trap your home to protect yourself, but you must use the minimum force called for in the situation.
Recapture of Chattels
Kirby v. Foster (1891) (p. 46) ( underpaid; takes $ from amount given to pay others; managers recapture $ by force, hurt ; receives Ds)
You cannot use force to recapture chattels unless they were taken by force, fraud, or without claim or right; let the legal system deal with the situation.
Uniform Commercial Code – §9-503
Permits a secured party to repossess collateral in the event of default without a judicial proceeding "if this can be done without breach of the peace." (changing locks not allowed)
Landlord / Tenant cases of repossession (p. 49)
Necessity
Ploof v. Putnam (1908) (p. 50) (boat in storm; tied to dock; servant cuts them loose, Ds)
Life more important than property; if you do not allow someone to use your property in an emergency to protect himself, you are liable for injuries and D to their property. Otherwise, they must reimburse for use of property but no punitive Ds – just restitution.
Mouse's Case (1609) (p. 52) (admiralty law, things thrown overboard in storm)
You can throw property overboard on boat if necessary during storm to save life; everyone with property on boat contributes equally to loss – treated as joint owners. (Admiralty law).
Vincent v. Lake Erie Transportation Co. (1910) (p. 52) (stronger cord; boat owner liable)
In a crisis, if you allow someone to use your property to save their life or property, they are liable to reimburse you for damages (but no criminal liability – just reimbursement).
Post v. Jones (1856) (p. 57) (generic example)
Professional rescuers compensated well for risk, but fees reduced if unreasonable bargain.