Torts Final Exam Outline – Turley – Fall 2010
THEORIES
- Theory of Torts
- Blackstone Commentaries
- Common Law commentaries that became the foundation for English and American law and established the concept of precedent
- Precedent Cases are peeled back like an onion until you get to the very first case
- Formalism
- Series of concrete rules to make laws more predictable and neutral
- Founded on a series of cannons that would make other “cannons” go off
- If A happens then B
- Legal Realism Theory
- Karl Llewellyn
- For every cannon (if A do B) there were reversible cannons (If B do A)
- Judges were selecting cannons so that they could pre-determine the outcome
- Judges began to rule on cases based on policy and the purpose behind a particular rule
- Normative Arguments Reason for the outcome is because it is the right thing
- Still the most common justification of the law
- All subsequent schools of thought are some kind of subset of Legal Realism
- Schools of Thought (Seven Areas of Doctrinal Law)
- Normative
- Look at determining what is the “norm of society”
- Determine what is morally right and wrong in society
- Usually decided by a jury to tell us what society believes
- Lockean
- Highlighted the definition and importance of property, as well as the relationships between a citizen and a state
- Went back to the State of Nature (No Law Established)
- In the State of Nature, God created the Earth in common and the conflict started when humans began taking common things and making them their own
- Labor Theory
- You develop your claim to property by taking what is COMMON and mixing your sweat and labor
- Means that property can be traced back to God and not the Government, therefore, the state is limited on how much property it can take
- Reduces redistribution of wealth and allows property holders to keep as much property as they want
- John Rawls
- Points out Locke’s Proviso
- You have a right to property as long as there is enough of the good for others
- May in fact violate God’s design and some redistribution might be made
- Utilitarianism Movement “Wealth Maximization”
- The foundation for other schools of thought
- Deals with the “Greater Good”
- Jeremy Bentham
- We should strive to get the “greatest good for the greatest number” of people
- Law rather than Market shapes society
- Recognize that government creates and maintains central social conditions
- Debate how far should government go to achieve the “greater good”
- Feminism Movement
- Started picking up stream in the 60’s and took off in the 70’s
- Women started asking “Why is the law like this?”
- Susan Estrich Book on rape caused rape laws to be rewritten
- Courts may be neutral but the law may be biased
- Law had been shaped by middle-aged Caucasian Males
- Silent biases that are gender sensitive
- Women challenged concepts and legal language
- The adversarial process (law based on violence)
- Historical trials were made by ordeal, festering, and trial by contract
- Surrogates (employable knights) started to be accepted for the people who could afford them
- Move from Juris Pathic to Juris Generative System
- Juris Pathic Systems = Legal Death Systems
- One side dies and the other prevails, but the majority of disputes don’t reach trial
- Juris Generative Systems = Systems that allowed for equitable relief
- Critical Legal Studies Movement (Crits)
- Tended to view “greatest good” on the basis of class justice
- Movement based on class equality that started mostly as a Marxist movement
- Argue that judges should become active in redistribution of wealth
- Duncan Kennedy peeled back the Blackstone Commentaries
- Found out that most decisions came to Ecclesiastical (Church) Courts under the jurisdiction of King John
- These courts started reaching opinions that dealt with contract law (property) so they could actually retain that property
- Main argument was that the basic property definitions and doctrines were written by “haves” to prevent “have nots” from taking property
- Argument for a change of language of the court so that it becomes more equitable in class justice
- To have the courts gravitate toward decisions that represent more economic justice
- Allow courts to be forums for people that are marginalized in society by the means of dialogue and debate
- Hegelian Theory
- Cannot understand property in isolation
- You need to understand the DYNAMIC relationship between the property and the individual
- Only way to understand the problem is to understand the RELATIONSHIP a party has with the object
- We use the concept of pain and suffering as the way to recover for loss of property
- We tend to protect things to the degree that we value them
- Invariably, people will be upset because they cannot recover the “true personal value” of their loss
- Hegelian Values Soft Values
- Ex Sierra Club Case where the person valued a forest because they hiked there continuously but could not put a price on it
- Economic Theory
- Richard Posner “Father of Law and Economics”
- Always rejected the idea of soft values because there is always a market indicator
- Focuses on things that we can easily define (efficiency) instead of basing on morality, which varies from person to person
- Pareto Efficiency/Pareto Superiority
- When at least one party involved is better off and no parties are worse off (stop lights, signs)
- Pareto Optimality
- If you keep striving for Pareto Efficiency, there will be a point in which you cannot develop another change without making someone else worse off
- This has never been achieved
- Tragedy of the Commons
- When individuals lack private property rights, everyone is hurt from “overuse”
- By assigning individuals private property rights, all are benefited
- Kaldor Hicks Efficiency
- Goal is to have more winners than losers!
- If you really want to be efficient you should develop more winners than loser without the necessity of compensating the losers
- Concerned with “wealth maximization” and not social utility
- Cheapest Cost Avoider
- Person best equipped to avoid an accident at the LOWEST COST
- Generally the one with the most access to information AND ability to use the information
- Cheapest cost avoider tends to be liable in accidents
- By articulating a manner in which the cost assumed by one party is in fact assumed by MULTIPLE parties, this EXPANDS THE UNIVERSE of cost and forces a reevaluation to see who the cheapest cost avoider is.
- Externalities
- People generally don’t fight positive externalities and target negative externalities
- This is because negative externalities provide a risk to others
- Possibility of positive externalities gives rise to the free rider problem
- When individuals take advantage of the benefits of the activities of others without paying for those benefits
- Public Goods May be ineffectively allocated
- Coase Theory
- It takes the coercive power of law for any rational actor will consider the cost that his actions will have on others
- Coase I
- The market in the end will determine who has rights regardless of the manner in which they are originally allocated (Assumes Perfect Market)
- Flaw is that NO market is perfect
- Perfect Market lacks “transaction costs” and “information costs” which can change outcomes
- Coase II
- For the Coast Theorem to function properly, a PEFECT MARKET had to be assumed with no transaction costs and perfect information.
- If the costs sustained by either party exceed the gain from the exchange itself, the exchange will NOT take place.
- Pigou Market Failure
- Government should become involved to “hurry up” the market when the process of efficient allocation is proceeding too slowly.
- Role of the Court System
- Madisonian Principles
- System that encourages factions (groups) but also encourages those factions to compromise with one another
- Madison’s idea was to develop a system that implodes to the center (government) and forces compromise
- Therefore, from the many factions a majoritarian view will appear
- Public Choice Movement
- Challenges the role of courts in the Madisonian System
- Congress favors minority opinions over majority principles
- Mancut Olson
- Concentrated small groups are more powerful than large diffused groups
- Small concentrated groups will have less free-riding problems because their members will have less of an incentive to free ride (they can be easily identified)
- Arguments of Law
- Slippery Slope
- Based on this decision there will be cases brought in issues that are not well-suited for judicial decision making
- Argument for the court to do nothing OR for the court to adopt a “Bright Line Rule”
- Floodgates
- Do not overextend the tort in this area because thousands of cases will then be brought up to court
- Deals with the fact that the court will be overwhelmed by the multitude of cases that might come forth as a result of Court’s decision
- Political Question Doctrine
- Way our system of government was created has a SPECIFIC role for the court
- Judicial Competence or Incompetence
- You are not in a good position to make this decision, so maybe you should defer to the legislative branch who will be more competent in its use
INTENTIONAL TORTS
- Intentional Harms
- Intent
- Purpose v. Knowledge (Specific v. General)
- A person acts with the intent to produce a consequence if
- The person has the purpose of producing that consequence
- The person knows to a substantial certainty that the consequence will ensue from the person’s conduct
- Meaning of Intent
- No Intent to Harm
- Δ does not need intent to harm the plaintiff because it is sufficient that he intended to do the act itself
- Substantial Certainty
- If Δ knows to a substantial certainty that a particular effect will occur as a result of their action, they are deemed to have intended the result
- If result is “highly likely” then Δ did not intent the result
- Act DISTINGUISED from Consequences
- The act itself must be intended or substantially certain, BUT the consequence does not
- Transferred Intent
- Intent can be transferred
- If A meant to harm B but instead harms C, then C will be able to sue A for an intentional tort as long as he can establish A’s intent to harm B
- Battery
- An (1) act (2) with the intent to cause (3) harmful or offensive bodily contact
- Elements
- Volitional Act by Δ
- Intent
- Intent to cause harmful or offensive bodily contact OR
- Intent to cause Π’s imminent apprehension of harmful or offensive bodily contact
- Not necessary for Δ to physically harm Π
- Transferred Intent Applies
- Harmful or Offensive Contact
- Harmful Touching Causes pain or bodily damage
- Offensive Touching Offends the “sense of dignity” of a reasonable person
- Causation Δ’s conduct must directly OR indirectly bring about the injury
- Lack of Consent
- Assault
- An (1) intentional act (2) causing apprehension of (3) harmful or offensive contact to Π’s own person
- Elements
- Act by Δ
- Words alone are not assault and conditional threats are generally not actionable
- Intent
- Intent to cause harmful or offensive bodily contact OR
- Intent to cause Π’s imminent apprehension of harmful or offensive bodily contact
- Not necessary for Δ to physically harm Π
- Transferred Intent Applies
- Apprehension
- Π must have reasonable apprehension of IMMINENT harmful or offensive touching of himself AND must be subjectively AWARE of the threat at the time thereof
- Source of Threatened Harm
- Δ liable if he arouses apprehension of harm from any source
- CausationApprehension must be legally caused by Δ’s act or something he set in motion
- Lack of Consent
- Conditional Threat Exception
- If Δ threatens to harm Π because he does not obey a demand by Δ, and Δ has a legal right to perform the act in question NO ASSAULT
- Ex A threatens to thrown B out of their house because B is a burglar. Since A can legally force B to leave, this is not an assault
- False Imprisonment
- An (1) act (2) with the intent (3) to cause (4) Π’s confinement to a specific area
- Elements
- Volitional Act by ΔBUT words MAY suffice
- Intent
- Intent to Confine OR
- Knowing with substantial certainty that Π would be confined by Δ’s actions
- Confinement
- Restriction to a limited area without knowledge or reasonable means of escape AND must be aware of the confinement at the time or else harmed by the confinement
- Means of Confinement
- Physical Force
- Imminent Threats of Immediate Harm to Π, his property, or his family
- Actual or Apparent Physical Barriers to Escape
- Includes refusing to release Π when under a duty to do so
- Assertion of Legal Authority and Π’s submission
- Arrest may be reasonable in place, time, and manner or else may become false imprisonment
- Causation
- Confinement must be legally caused by Δ’s intentional act OR a force set in motion by Δ
- Lack of Consent
- Transitory or Harmless Confinement
- Suspected shoplifters can be held for a reasonable time in a reasonable place and manner under “shopkeepers privilege”
- Intentional Infliction of Emotional Distress
- (1) Extreme of outrageous conduct (2) with the intent to cause OR reckless disregard of the probability of causing (3) severe emotional or mental distress
- Elements
- Act by Δ Extreme AND Outrageous Conduct
- Goes BEYOND all possible bounds of reasonable decency
- Words alone MAY suffice, but simple insults are NOT actionable
- Exceptions
- Common Carriers and Public Utilities may be liable for insults not ordinarily actionable
- Intent
- Intent to cause Π’s emotional distress
- Knowing with substantial certainty that Π will suffer emotional distress
- Reckless disregard of the high probability that emotional distress will occur
- Causation
- Under the Old Rule physical injuries were required but under the Modern Rule Distress Alone Suffices
- Severe Emotional Distress
- Transferred Intent does not usually apply EXCEPT
- Immediate Family Present
- (1) Δ directs his conduce at a member of Π immediate family (2) Π is present and (3) Π presence is known to Δ
- Interference with Property
- Trespass to Land (Real Property)
- (1) Δ intentionally (2) enters, remains (even if entry was legal) or places an object (or refuses to remove an object) on Π’s land (3) without permission
- Elements
- Act by Δ
- Intent
- Intent to intrude on the land with the knowledge that the land belongs to another
- Negligent interference if damages are shown
- Transferred Intent Applies
- Intrusion Upon Land
- Δ must personally enter the land.
- Failure to leave the land or remove an object after consent is withdrawn
- Π’s Possession or Entitled to Immediate Possession of land
- CausationInvasion may be legally caused by Δ’s act or by force set in motion
- Trespasser can be liable for any harm even if it was not foreseeable
- Intrusions of nonphysical nature (gases, smoke) treated as a nuisance
- Air Space
- No right to air space above normal flight altitude.
- Therefore, it can be trespass of air space if
- (1) Δ enters the air space below normal flight altitudes and (2) the flight substantially interferes with Π’s use of the property
- Trespass to Chattels
- (1) Δ’s intentional interference with (2) Π’s use or possess (3) of a chattel
- Elements
- Volitional act by Δ resulting in dispossession or harm to chattel
- Intent
- Intent to deal with the chattel in the manner that he did so
- Invasion of Chattel Interest
- Dispossession (assessing proprietary interest) or Intermeddling (A lesser interference)
- Π’s Possession or Entitled to Immediate Possession
- Causation
- Invasion must have been legally caused by Δ’s intentional act or a force set in motion by Δ
- Damages to Chattels
- Δ only has to pay for damages done to the chattel
- Conversion Used to Regain Monetary Damages
- (1) Δ’s intentional interference with (2) Π’s possession or ownership of property (3) that is so substantial that he should be required to pay full value for it
- Elements
- Act by Δ resulting in interference with another’s possession of their chattel
- Intent
- Intent to deal with the chattel in the manner in which he actually did deal with it
- Invasion of Chattel Interest
- Factors in determining if person should pay full value (Conversion)
- Extent and duration of Δ’s exercise of dominion or control
- Δ’s good or bad faith
- Harm done to the chattel
- Inconvenience and Expense caused to Π
- Extent and duration of the resulting interference with Π’s right to control
- Δ’s intent to assert a right in fact inconsistent with the Π’s right of control
- Π’s Possession or Entitled to Immediate Possession
- Causation Invasion must have been legally caused by Δ’s intentional act or a force set in motion by Δ
- Different Ways of Committing Conversion
- Acquiring Possession - Δ takes possession of the property
- Bona Fide Purchaser
- Purchaser of a stolen good is a converter, EVEN if there is no way to know that the property was stolen
- Transferred to Third Person
- Δ transfers or sells the chattel to a third party who is not entitled to it
- Withholding Good
- Δ refuses to return the chattel to the owner and the refusal lasts for a substantial time
- Destruction
- Δ destroys or fundamentally alters the chattel
- Trespass to Intangible Property (Internet)
- Π must show actual damage or interference with the property
- Defenses to Intentional Torts
- Consent
- Types of Consent
- Express Consent
- If Π expressly consents to intentional interference with his person or property, Δ will not be liable for that interference
- Implied Consent
- Consent may be implied from Π’s conduct, from custom or from circumstances
- Objective Manifestation
- If the reasonable person would have believed that Π was consenting, then consent exists regardless of Π’s state of mind
- Substituted Consent
- Consent may be substituted if Π is unable to consent and it instead obtained from a spouse, parent, or attorney appointed as guardian ad libidum.
- Five Ways to Negate Consent
- Violation of LawΠ cannot consent to an illegal act
- When the consented activity is a crime, the organizer or promoter of the activity may be held liable for resulting injuries
- Lack of Capacity to ConsentConsent is invalidated if Π is incapable of giving consent because of infancy, intoxication, unconsciousness, etc.
- Consent as a matter of law
- If Π is incapable of giving consent the it is implied as a matter of law if (1) immediate action is necessary to save Π’s life or health, (2) there is no indication that Π would not give consent if able and (3) a reasonable person would give consent in Π’s circumstances
- If Π gives consent for ONE intentional interference, Δ can be liable for any additional interferences
- Exception When there is an emergency during a surgery; however, the interferences cannot exceed what is necessary to allow physician to seek further consent
- CoercionIf Π is coerced into consenting
- MistakeThe activity Π received injury in was NOT the activity Π believed he was consenting to
- Policy Reasons (i.e. STD)Cannot consent to getting an STD unless STD is disclosed before sex
- Insanity
- Insanity NOT a defense to intentional torts
- Exception
- When someone is completely unconscious
- Self-Defense
- Person allowed to protect himself (1) from threatened harmful or offensive bodily contact, or threatened confinement or imprisonment, (2) if there is a reasonable believe of imminent harm and (3) the level of force used is consummate
- May only use self-defense to protect own person and cannot claim in cases of retaliation or future threats
- No Duty to Retreat Rule
- No duty to retreat if Δ is using non-deadly force
- Δ has a duty to retreat before deadly force is used
- Make my Day Laws
- Δ has no duty to retreat if he is attacked in his dwelling by someone who does not reside there
- Curtilage
- Use of deadly force in a dwelling also extends to the area of land surrounding the dwelling to prevent imminent entry by someone who does not reside there
- Defense of Others
- Δ may use reasonable force to protect another person against attack, subject to the same limitations as own self-defense
- Mistake in Self Defense
- Must show all the elements of self defense plus “reasonableness of mistake”
- Defense of Real Property
- Reasonable Belief and Reasonable Force
- Spring Traps and Man Traps
- Can’t use a spring gun because of morality (Cannot differentiate between friend and foe)
- Moliter Manus imposuit To Lay Gentle Hands
- Can’t use amount of force that would kill or cause serious injury, based on the idea that we value life more than property
- Escalating Force is allowed on theory that you are defending yourself
- Recapture of Chattels
- Recapture Involves
- (1) Possession by owner and (2) purely wrong taking or conversion (3) without a claim of right
- Law disfavors help in recovery of chattels
- If original transfer was voluntary, then help is not allowed at all
- Better course is to use legal remedy
- NEVER use force calculated to cause serious bodily injury or death in defense of property
- Necessity
- A person may interfere with real or personal property of another where interference is reasonably necessary to avoid threatened injury from natural or other force where injury is MORE serious than invasion that is undertaken to avert it
- Types of Necessity
- Private Necessity
- If Δ is acting to prevent injury to himself or his property, or to the person or property of a third person, his privilege is protected
- The owner of the land may not resist or they may be liable for any damages
- INCOMPLETE PRIVILEGE Must pay for damage done during use of other’s property
- Public Necessity
- Δ may interfere with the land or chattels of others if doing so will prevent injury to the community as a whole
- Typically Δ will not have to pay for damages caused
NEGLIGENCE