Special Defendants 3

STUFF 2

SPECIAL DEFENDANTS 3

I. Multiple Defendants 3

II. Doctor 3

III. Employer/Employee 3

IV. Business/Customer 3

INTENTIONAL TORTS 4

I. KNOWING & INTENTIONAL TORTS AGAINST PEOPLE 4

a. INTENT & CAUSATION 4

b. Fraud 4

c. Intentional Nuisance 4

d. Battery 4

e. Assault (no contact) 4

f. False Imprisonment 5

g. Intentional Infliction of Emotional Distress RST §46 5

II. KNOWING & INTENTIONAL TORTS AGAINST PROPERTY 5

a. Trespass to Land 5

b. Trespass to Chattels 5

c. Conversion 6

III. DEFENSES 6

a. Implied or Express Consent 6

b. Self defense 6

c. Defense of Third Parties 6

d. Defense of Property 6

e. Necessity 7

f. Recapture Chattels by Force 7

g. Not Defenses 7

VICARIOUS LIABILITY 8

b. Parents 8

c. Employees - Respondeat Superior 8

d. Joint Enterprise 8

JOINT & SEVERAL LIABILITY 9

I. Joint and Several Liability 9

II. Acting In Concert 9

III. Independent Acts Causing a Single Indivisible Injury 9

IV. Allocation of Liability 9

NEGLIGENCE 10

I. Flowchart 10

II. Standard of Care 10

III. Duty 11

IV. Breach 12

V. Cause In Fact 12

VI. Proximate Cause 13

VII. Damages 14

VIII. DeFeNsEs 14

STRICT LIABILITY 16

I. Flowchart 16

II. Conversion 16

III. Animals 16

IV. Abnormally Dangerous Activities 16

V. Nuisance 17

IX. DeFeNsEs 18

PRODUCTS LIABILITY 18

DAMAGES 23

STUFF

More likely than not (51%) / The following theories / X as a possible Defendant
Possible theories against X
Worker’s Compensation / Knowing with certainty / Trespass - object
Direct causation for intentional torts / RES IPSA somewhere on exam

SPECIAL DEFENDANTS

I.  Multiple Defendants

1.  Did they act in concert – aiding/encouraging another in committing tort?

2.  Joint Enterprise – together for mutual profit?

3.  Were there independent acts that caused a single indivisible injury?

4.  Simultaneous independent torts, not sure who caused harm.

à Check contribution & indeminity

II.  Doctor

i.  Informed Consent? Deprives person of choice and breaches duty owed by doctor

1.  Negligence for not obtaining it.

2.  Must prove causation – Would P have consented regardless or would have made a different choice? Most people would consent to x under the circumstances.

3.  Either (1) subjective – allow P to testify or (2) objective – what reasonable person/most people would do

ii.  Battery for exceeding consent? Emergency privilege? Consent by fraud?

iii.  Major internal operation - consent construed as general, particularly when complete diagnosis is impossible until anesthesia is applied

iv.  National standard of care is modern trend. Sometimes locality.

v.  Despite custom, Dr still negligent, a la TJ Hoooper. (glaucoma case)

vi.  Experimental treatment – let contract law govern.

vii.  Res Ipsa Loquitur (Ybarra)

viii. Loss of a chance (Herskovitz)

III. Employer/Employee

i.  Worker’s Compensation - An individual injured at work can only receive workers' comp benefits and cannot sue for other damages – strictly a no fault system.

1.  Exceptions:

i.  Workers hurt not @ place run by employer but someone else (working @ warehouse)

ii.  Injured empl sues someone besides employer – equipment manufacturer.

ii.  Indeminity

IV. Business/Customer

i.  Shopkeeper’s privilege

(1)  Reasonable Suspicion, (2) Detain for Reasonable Amount of Time,

(3) Use Reasonable Force

ii.  Possessors are obligated to exercise reasonable care to protect business visitors from the acts of third persons and animals (RST §344)

iii.  Customer invitee so duty of reasnble care in maintaining premises activities

1.  Reasonable Care: Guard against something know or should know about

2.  Must take affirmative steps to inspect property and find hidden dangers, unlike licensee. Must remedy – fence off or warn invitee where risk is (1) unknown to him and (2) not obvious.

3.  But possessor liable if should anticipate harm despite knowledge and obviousness RST §343A

INTENTIONAL TORTS

I.  KNOWING & INTENTIONAL TORTS AGAINST PEOPLE

a.  INTENT & CAUSATION

1)  Purpose or Knowing with substantial certainty

2)  Intent to do act, not to harm

3)  Transferred intent

ii.  DIRECTLY CAUSED HARM

b.  Fraud

c.  Intentional Nuisance

1)  See Strict Liability

d.  Battery

1)  (1) Act with (2) intent to cause a (3) harmful or offensive contact to a person or a third person or (4) imminent apprehension of such contact, and (5) such contact actually results

i.  Intent – Knowing with substantial certainty or Purpose

ii.  Harmful/offensive – would harm/offend reasonable person with ordinary sensibilities

iii.  Imminent apprehension – belief act is capable of immediately inflicting contact, unless something else occurs, not fear

2)  Mechanical Devices are under Defense of Property

e.  Assault (no contact)

1)  (1) Act with (2) intent to cause (3) a harmful or offensive contact to a person or third person or (4) imminent apprehension of such conduct, and (5) the other is thereby put in such imminent apprehension

i.  Act – words alone insufficient

ii.  Intent – Knowing with substantial certainty or Purpose

iii.  Harmful/offensive – would harm/offend reasonable person with ordinary sensibilities

iv.  Imminent apprehension – belief act is capable of immediately inflicting contact, unless something else occurs, not fear

v.  Reasonable apprehension – no unusual sensitivity

f.  False Imprisonment

1)  (1) Act with (2) intent to cause confinement (3) in a bounded area that

(4) actually causes the confinement

i.  Act – physical barrier, threat of immediate force, threat to property, general restraint, demonstration of physical power

ii.  Intent – Knowing with substantial certainty or Purpose

Also includes if negligent and major harm results

iii.  Bounded Area – area bounded in all directions

2)  But Shopkeeper privilege

(1)  Reasonable Suspicion, (2) Detain for Reasonable Amount of Time,

(3) Use Reasonable Force

g.  Intentional Infliction of Emotional Distress RST §46

1)  (1) Extreme or outrageous conduct committed (2) intentionally or recklessly (3) that causes severe emotional distress; (4) also liable for resulting bodily harm

i.  Extreme/outrageous conduct – so severe and outrageous as to go beyond all possible bounds of decency and be regarded as atrocious, and utterly intolerable in a civilized community, words alone sufficient

ii.  Intentionally – intent to cause severe emotional distress, not another tort

iii.  Recklessly – acting in deliberate disregard of high probability that actions would cause severe emotional distress

iv.  Actor’s knowledge of D’s sensitivity due to physical/mental condition

2)  Where conduct is directed at a third person, liable if intentionally or recklessly causes severe emotional distress to

a.  Member of such person’s immediate family present at the time

b.  Any other person present, if such distress results in bodily harm

II.  KNOWING & INTENTIONAL TORTS AGAINST PROPERTY

a.  Trespass to Land

1)  (1) Intentionally (2) entering land in possession of another or (3) causing a thing or a third person to do so

2)  Damages

i.  Reduction in fair market value of the land

ii.  Nominal or punitive damages if no harm occurred

b.  Trespass to Chattels

1)  (1) Intentional (2) interference w/ use/possession of (3) personal property.

i.  Interference – damage or take temporarily

2)  Damages

i.  Reduction in market value

c.  Conversion

1)  (1) Intentional (2) exercise of dominion and control over a chattel (3) which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. RST §222A

i.  Intent – desire to exercise dominion and control over chattel

2)  Damages

i.  Forced sale damages – fair market value

ii.  Depend on D’s mental state – mistakenly or knowingly

III. DEFENSES

a.  Implied or Express Consent

1)  Exceptions: fraud, duress, exceeding scope of consent, lack of capacity, consent to illegal/criminal acts

2)  Implied – from conduct and circumstances

3)  Express – verbally or in writing

b.  Self defense

1)  When a person is (1) attacked or (2) correctly believes (3) or has reasonable grounds to believe (4) he is about to be attacked, (5) he may protect himself (6) by using force as (7) reasonably necessary

i.  Reasonable belief – circumstances in which reasonable person would believe his life was in danger or serious bodily harm would result, even if mistaken (only reasonable mistake)

ii.  Reasonable force – only force necessary required to protect self

iii.  Deadly force – (1) reasonable belief (2) no reasonable alternative

c.  Defense of Third Parties

1)  Same conditions as self defense

d.  Defense of Property

1)  Privilege limited to (1) amount of force (2) reasonably necessary to defend the property; (3) after request to depart, if applicable

i.  Reasonable force – deadly force not justified unless intruder would cause death or serious bodily harm

ii.  Request to depart – not required if actual force (breaking down fence) but required if force is implied (setting foot on land)

2)  Mechanical devices – privilege only if could use similar degree of force if present and acting himself.

i.  Deadly force – wire shoots shotgun prohibited b/c may not use deadly force unless trespasser is committing violence or endangering human life

ii.  Exception – sign saying that trespasser will be shot may negate intent for battery

3)  Shopkeeper Privilege

i.  Reasonable grounds for suspicion of larceny

ii.  Detention for a Reasonable Amount of Time

iii.  Reasonable Force

e.  Necessity

1)  Private Necessity

i.  Privilege to (1) interfere with or harm property (2) to prevent greater injury to (3) self, property, or third party (4) from forces of nature or third party (5) if there is no other alternative

ii.  Incomplete defense – liable for damages

2)  Public Necessity

i.  Privilege to (1) interfere with or harm property (2) when such interference (3) appears reasonably necessary (4) to prevent a disaster to the community.

f.  Recapture Chattels by Force

1)  For (1) wrongful taking – force, fraud, or claim of right, (2) may use reasonable (3) but not deadly force (4) subject to fresh pursuit requirement

g.  Not Defenses

1)  Insanity

2)  Contributory negligence

3)  Assumption of risk

VICARIOUS LIABILITY

a.  Vicarious Liability

i.  Jointly liable for actions of another.

ii.  Imposes tort responsibility because of relationship with the wrongdoer.

b.  Parents

i.  Generally not vicariously liable for children’s torts

ii.  May be liable for negligent supervision

c.  Employees - Respondeat Superior

i.  Indemnity

1)  Passive and innocent employer may recoup losses from the employee

ii.  Strictly Liable For Employees’ Torts

i)  Committed Not in scope of employment WHEN

i.  Car accident during lunch hour

ii.  Frolic and Detour

- doing other things during work (accident on way to bar)

- unless too extensive or extreme

iii.  Using badge/id to get into house to commit tort

- exterminator gets into house and commits assault

ii)  Committed in Scope of Employment.

i.  Purpose is to serve employer’s objectives

ii.  General type of work employee is employed to perform

iii.  Occurs within time and place authorized by employers

iii)  Control test to determine if employee/independent contractor

iii.  Independent Contractors

1)  No liability unless in scope of employment

i.  Implied authority

ii.  Apparent authority

iii.  Dangerous work

(1)  work involving special dangers to others

(2)  failure to take reasonable precautions against danger

iv.  Non-delegable duty

v.  Own negligence

d.  Joint Enterprise

i.  Can impute negligence to another if together for mutual profit

JOINT & SEVERAL LIABILITY

I.  Joint and Several Liability

i.  More than 1 (several) and each is responsible for the entire damage award (joint).

ii.  If unable to collect a co-tortfeasor’s portion, the rest are responsible.

II.  Acting In Concert

i.  Intentionally aiding or encouraging another to commit a tort.

ii.  Liable as individual who actually committed the tort. (act in concert)

III. Independent Acts Causing a Single Indivisible Injury

i.  Two or more individuals whose acts cause a single indivisible injury

IV. Allocation of Liability

i.  Traditionally

1)  Pro-rata share of damages based on number of joint tortfeasors

2)  Damage amount divided by number of Ds ($100M/5Ds = $20M/D)

ii.  Comparative Fault

1)  Liability divided by proportion of responsibility each tortfeasor bears for injury

2)  In absence of reform statute, joint liability is not altered and each tortfeasor is still responsible for full damage amount. Am. Motorcycle

a.  Settlement

i.  Settling D’s percentage of fault is deducted from damages awarded to P regardless of actual settlement amount.

b.  Contribution

i.  Action to recover amount paid above his pro-rata share.

c.  Indemnity

i.  Action for complete reimbursement to recover 100%. Does not usually apply here.

NEGLIGENCE

I.  Flowchart

ACT Causation HARM P’s CN

1.  What is the harm? Whose conduct caused the harm? Which conduct caused the harm?
2.  Res Ipsa - was the accident one that typically does not happen without negligence and D was in control?
3.  What is D’s act? What did D do/not do? – failed to warn about danger, storage of x
Did D have duty? Foreseeable Plaintiff under Palsgraf?
4.  How did the D fail to exercise reasonable care (it is unreasonably dangerous to do x) OR create an unreasonable risk to person or property? How did D breach duty? Custom? Violated statute? Did not take cost-effective precaution (B<PL)?
5.  What would a reasonable person under the circumstances have done (reasonable care) – would he have recognized the danger?
What duty did he have? Special Duty? Did D have to follow a custom? Did D violate a _ statute (per se)? Did D not take a cost-effective precaution (B<PL)? Compliance with _ statute relevant but inconclusive.
6.  Did the harm more likely than not occur but for D’s act or would have occurred anyway? Would things have been different? Concurrent causes? Alternative causes?
7.  Was the harm proximately caused by the D’s act? Was P a foreseeable plaintiff? Did negligence increase risk of injury or was it a coincidence (Berry)?
8.  What are the damages? Only economic? Property damage? Bodily Injury? Mitigation of damages - Reasonable?
9.  Was there contributory/comparative negligence by P – careless?
Assumption of risk – knowledge, voluntary, reasonable – primary/secondary?
Emergency existed? Complete or Partial bar to recovery?
10.  Last clear chance by the D – helpless/inattentive P? No CN when gross negligence v. ordinary negligence. No CN for doing anything on your property. (Leroy Fibre)
Under comparative fault, last clear chance not complete bar but weighs in favor when calculating fault.

II.  Standard of Care