Torts Final Exam Outline – Turley – Fall 2010

THEORIES

  1. Theory of Torts
  2. Blackstone Commentaries
  3. Common Law commentaries that became the foundation for English and American law and established the concept of precedent
  4. Precedent  Cases are peeled back like an onion until you get to the very first case
  5. Formalism
  6. Series of concrete rules to make laws more predictable and neutral
  7. Founded on a series of cannons that would make other “cannons” go off
  8. If A happens then B
  9. Legal Realism Theory
  10. Karl Llewellyn
  11. For every cannon (if A do B) there were reversible cannons (If B do A)
  12. Judges were selecting cannons so that they could pre-determine the outcome
  13. Judges began to rule on cases based on policy and the purpose behind a particular rule
  14. Normative Arguments  Reason for the outcome is because it is the right thing
  15. Still the most common justification of the law
  16. All subsequent schools of thought are some kind of subset of Legal Realism
  17. Schools of Thought (Seven Areas of Doctrinal Law)
  18. Normative
  19. Look at determining what is the “norm of society”
  20. Determine what is morally right and wrong in society
  21. Usually decided by a jury to tell us what society believes
  22. Lockean
  23. Highlighted the definition and importance of property, as well as the relationships between a citizen and a state
  24. Went back to the State of Nature (No Law Established)
  25. 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
  26. Labor Theory
  27. You develop your claim to property by taking what is COMMON and mixing your sweat and labor
  28. 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
  29. Reduces redistribution of wealth and allows property holders to keep as much property as they want
  30. John Rawls
  31. Points out Locke’s Proviso
  32. You have a right to property as long as there is enough of the good for others
  33. May in fact violate God’s design and some redistribution might be made
  34. Utilitarianism Movement  “Wealth Maximization”
  35. The foundation for other schools of thought
  36. Deals with the “Greater Good”
  37. Jeremy Bentham
  38. We should strive to get the “greatest good for the greatest number” of people
  39. Law rather than Market shapes society
  40. Recognize that government creates and maintains central social conditions
  41. Debate  how far should government go to achieve the “greater good”
  42. Feminism Movement
  43. Started picking up stream in the 60’s and took off in the 70’s
  44. Women started asking “Why is the law like this?”
  45. Susan Estrich  Book on rape caused rape laws to be rewritten
  46. Courts may be neutral but the law may be biased
  47. Law had been shaped by middle-aged Caucasian Males
  48. Silent biases that are gender sensitive
  49. Women challenged concepts and legal language
  50. The adversarial process (law based on violence)
  51. Historical trials were made by ordeal, festering, and trial by contract
  52. Surrogates (employable knights) started to be accepted for the people who could afford them
  53. Move from Juris Pathic to Juris Generative System
  54. Juris Pathic Systems = Legal Death Systems
  55. One side dies and the other prevails, but the majority of disputes don’t reach trial
  56. Juris Generative Systems = Systems that allowed for equitable relief
  57. Critical Legal Studies Movement (Crits)
  58. Tended to view “greatest good” on the basis of class justice
  59. Movement based on class equality that started mostly as a Marxist movement
  60. Argue that judges should become active in redistribution of wealth
  61. Duncan Kennedy peeled back the Blackstone Commentaries
  62. Found out that most decisions came to Ecclesiastical (Church) Courts under the jurisdiction of King John
  63. These courts started reaching opinions that dealt with contract law (property) so they could actually retain that property
  64. Main argument was that the basic property definitions and doctrines were written by “haves” to prevent “have nots” from taking property
  65. Argument for a change of language of the court so that it becomes more equitable in class justice
  66. To have the courts gravitate toward decisions that represent more economic justice
  67. Allow courts to be forums for people that are marginalized in society by the means of dialogue and debate
  68. Hegelian Theory
  69. Cannot understand property in isolation
  70. You need to understand the DYNAMIC relationship between the property and the individual
  71. Only way to understand the problem is to understand the RELATIONSHIP a party has with the object
  72. We use the concept of pain and suffering as the way to recover for loss of property
  73. We tend to protect things to the degree that we value them
  74. Invariably, people will be upset because they cannot recover the “true personal value” of their loss
  75. Hegelian Values  Soft Values
  76. Ex  Sierra Club Case where the person valued a forest because they hiked there continuously but could not put a price on it
  77. Economic Theory
  78. Richard Posner “Father of Law and Economics”
  79. Always rejected the idea of soft values because there is always a market indicator
  80. Focuses on things that we can easily define (efficiency) instead of basing on morality, which varies from person to person
  81. Pareto Efficiency/Pareto Superiority
  82. When at least one party involved is better off and no parties are worse off (stop lights, signs)
  83. Pareto Optimality
  84. 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
  85. This has never been achieved
  86. Tragedy of the Commons
  87. When individuals lack private property rights, everyone is hurt from “overuse”
  88. By assigning individuals private property rights, all are benefited
  89. Kaldor Hicks Efficiency
  90. Goal is to have more winners than losers!
  91. If you really want to be efficient you should develop more winners than loser without the necessity of compensating the losers
  92. Concerned with “wealth maximization” and not social utility
  93. Cheapest Cost Avoider
  94. Person best equipped to avoid an accident at the LOWEST COST
  95. Generally the one with the most access to information AND ability to use the information
  96. Cheapest cost avoider tends to be liable in accidents
  97. 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.
  98. Externalities
  99. People generally don’t fight positive externalities and target negative externalities
  100. This is because negative externalities provide a risk to others
  101. Possibility of positive externalities gives rise to the free rider problem
  102. When individuals take advantage of the benefits of the activities of others without paying for those benefits
  103. Public Goods  May be ineffectively allocated
  104. Coase Theory
  105. It takes the coercive power of law for any rational actor will consider the cost that his actions will have on others
  106. Coase I
  107. The market in the end will determine who has rights regardless of the manner in which they are originally allocated (Assumes Perfect Market)
  108. Flaw is that NO market is perfect
  109. Perfect Market lacks “transaction costs” and “information costs” which can change outcomes
  110. Coase II
  111. For the Coast Theorem to function properly, a PEFECT MARKET had to be assumed with no transaction costs and perfect information.
  112. If the costs sustained by either party exceed the gain from the exchange itself, the exchange will NOT take place.
  113. Pigou  Market Failure
  114. Government should become involved to “hurry up” the market when the process of efficient allocation is proceeding too slowly.
  115. Role of the Court System
  116. Madisonian Principles
  117. System that encourages factions (groups) but also encourages those factions to compromise with one another
  118. Madison’s idea was to develop a system that implodes to the center (government) and forces compromise
  119. Therefore, from the many factions a majoritarian view will appear
  120. Public Choice Movement
  121. Challenges the role of courts in the Madisonian System
  122. Congress favors minority opinions over majority principles
  123. Mancut Olson
  124. Concentrated small groups are more powerful than large diffused groups
  125. 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)
  126. Arguments of Law
  127. Slippery Slope
  128. Based on this decision there will be cases brought in issues that are not well-suited for judicial decision making
  129. Argument for the court to do nothing OR for the court to adopt a “Bright Line Rule”
  130. Floodgates
  131. Do not overextend the tort in this area because thousands of cases will then be brought up to court
  132. 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
  133. Political Question Doctrine
  134. Way our system of government was created has a SPECIFIC role for the court
  135. Judicial Competence or Incompetence
  136. 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

  1. Intentional Harms
  2. Intent
  3. Purpose v. Knowledge (Specific v. General)
  4. A person acts with the intent to produce a consequence if
  5. The person has the purpose of producing that consequence
  6. The person knows to a substantial certainty that the consequence will ensue from the person’s conduct
  7. Meaning of Intent
  8. No Intent to Harm
  9. Δ does not need intent to harm the plaintiff because it is sufficient that he intended to do the act itself
  10. Substantial Certainty
  11. 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
  12. If result is “highly likely” then Δ did not intent the result
  13. Act DISTINGUISED from Consequences
  14. The act itself must be intended or substantially certain, BUT the consequence does not
  15. Transferred Intent
  16. Intent can be transferred
  17. 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
  18. Battery
  19. An (1) act (2) with the intent to cause (3) harmful or offensive bodily contact
  20. Elements
  21. Volitional Act by Δ
  22. Intent
  23. Intent to cause harmful or offensive bodily contact OR
  24. Intent to cause Π’s imminent apprehension of harmful or offensive bodily contact
  25. Not necessary for Δ to physically harm Π
  26. Transferred Intent Applies
  27. Harmful or Offensive Contact
  28. Harmful Touching  Causes pain or bodily damage
  29. Offensive Touching  Offends the “sense of dignity” of a reasonable person
  30. Causation Δ’s conduct must directly OR indirectly bring about the injury
  31. Lack of Consent
  32. Assault
  33. An (1) intentional act (2) causing apprehension of (3) harmful or offensive contact to Π’s own person
  34. Elements
  35. Act by Δ
  36. Words alone are not assault and conditional threats are generally not actionable
  37. Intent
  38. Intent to cause harmful or offensive bodily contact OR
  39. Intent to cause Π’s imminent apprehension of harmful or offensive bodily contact
  40. Not necessary for Δ to physically harm Π
  41. Transferred Intent Applies
  42. Apprehension
  43. 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
  44. Source of Threatened Harm
  45. Δ liable if he arouses apprehension of harm from any source
  46. CausationApprehension must be legally caused by Δ’s act or something he set in motion
  47. Lack of Consent
  48. Conditional Threat Exception
  49. 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
  50. 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
  51. False Imprisonment
  52. An (1) act (2) with the intent (3) to cause (4) Π’s confinement to a specific area
  53. Elements
  54. Volitional Act by ΔBUT words MAY suffice
  55. Intent
  56. Intent to Confine OR
  57. Knowing with substantial certainty that Π would be confined by Δ’s actions
  58. Confinement
  59. 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
  60. Means of Confinement
  61. Physical Force
  62. Imminent Threats of Immediate Harm to Π, his property, or his family
  63. Actual or Apparent Physical Barriers to Escape
  64. Includes refusing to release Π when under a duty to do so
  65. Assertion of Legal Authority and Π’s submission
  66. Arrest may be reasonable in place, time, and manner or else may become false imprisonment
  67. Causation
  68. Confinement must be legally caused by Δ’s intentional act OR a force set in motion by Δ
  69. Lack of Consent
  70. Transitory or Harmless Confinement
  71. Suspected shoplifters can be held for a reasonable time in a reasonable place and manner under “shopkeepers privilege”
  72. Intentional Infliction of Emotional Distress
  73. (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
  74. Elements
  75. Act by Δ Extreme AND Outrageous Conduct
  76. Goes BEYOND all possible bounds of reasonable decency
  77. Words alone MAY suffice, but simple insults are NOT actionable
  78. Exceptions
  79. Common Carriers and Public Utilities may be liable for insults not ordinarily actionable
  80. Intent
  81. Intent to cause Π’s emotional distress
  82. Knowing with substantial certainty that Π will suffer emotional distress
  83. Reckless disregard of the high probability that emotional distress will occur
  84. Causation
  85. Under the Old Rule physical injuries were required but under the Modern Rule Distress Alone Suffices
  86. Severe Emotional Distress
  87. Transferred Intent does not usually apply EXCEPT
  88. Immediate Family Present
  89. (1) Δ directs his conduce at a member of Π immediate family (2) Π is present and (3) Π presence is known to Δ
  90. Interference with Property
  91. Trespass to Land (Real Property)
  92. (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
  93. Elements
  94. Act by Δ
  95. Intent
  96. Intent to intrude on the land with the knowledge that the land belongs to another
  97. Negligent interference if damages are shown
  98. Transferred Intent Applies
  99. Intrusion Upon Land
  100. Δ must personally enter the land.
  101. Failure to leave the land or remove an object after consent is withdrawn
  102. Π’s Possession or Entitled to Immediate Possession of land
  103. CausationInvasion may be legally caused by Δ’s act or by force set in motion
  104. Trespasser can be liable for any harm even if it was not foreseeable
  105. Intrusions of nonphysical nature (gases, smoke) treated as a nuisance
  106. Air Space
  107. No right to air space above normal flight altitude.
  108. Therefore, it can be trespass of air space if
  109. (1) Δ enters the air space below normal flight altitudes and (2) the flight substantially interferes with Π’s use of the property
  110. Trespass to Chattels
  111. (1) Δ’s intentional interference with (2) Π’s use or possess (3) of a chattel
  112. Elements
  113. Volitional act by Δ resulting in dispossession or harm to chattel
  114. Intent
  115. Intent to deal with the chattel in the manner that he did so
  116. Invasion of Chattel Interest
  117. Dispossession (assessing proprietary interest) or Intermeddling (A lesser interference)
  118. Π’s Possession or Entitled to Immediate Possession
  119. Causation
  120. Invasion must have been legally caused by Δ’s intentional act or a force set in motion by Δ
  121. Damages to Chattels
  122. Δ only has to pay for damages done to the chattel
  123. Conversion Used to Regain Monetary Damages
  124. (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
  125. Elements
  126. Act by Δ resulting in interference with another’s possession of their chattel
  127. Intent
  128. Intent to deal with the chattel in the manner in which he actually did deal with it
  129. Invasion of Chattel Interest
  130. Factors in determining if person should pay full value (Conversion)
  131. Extent and duration of Δ’s exercise of dominion or control
  132. Δ’s good or bad faith
  133. Harm done to the chattel
  134. Inconvenience and Expense caused to Π
  135. Extent and duration of the resulting interference with Π’s right to control
  136. Δ’s intent to assert a right in fact inconsistent with the Π’s right of control
  137. Π’s Possession or Entitled to Immediate Possession
  138. Causation Invasion must have been legally caused by Δ’s intentional act or a force set in motion by Δ
  139. Different Ways of Committing Conversion
  140. Acquiring Possession - Δ takes possession of the property
  141. Bona Fide Purchaser
  142. Purchaser of a stolen good is a converter, EVEN if there is no way to know that the property was stolen
  143. Transferred to Third Person
  144. Δ transfers or sells the chattel to a third party who is not entitled to it
  145. Withholding Good
  146. Δ refuses to return the chattel to the owner and the refusal lasts for a substantial time
  147. Destruction
  148. Δ destroys or fundamentally alters the chattel
  149. Trespass to Intangible Property (Internet)
  150. Π must show actual damage or interference with the property
  151. Defenses to Intentional Torts
  152. Consent
  153. Types of Consent
  154. Express Consent
  155. If Π expressly consents to intentional interference with his person or property, Δ will not be liable for that interference
  156. Implied Consent
  157. Consent may be implied from Π’s conduct, from custom or from circumstances
  158. Objective Manifestation
  159. If the reasonable person would have believed that Π was consenting, then consent exists regardless of Π’s state of mind
  160. Substituted Consent
  161. 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.
  162. Five Ways to Negate Consent
  163. Violation of LawΠ cannot consent to an illegal act
  164. When the consented activity is a crime, the organizer or promoter of the activity may be held liable for resulting injuries
  165. Lack of Capacity to ConsentConsent is invalidated if Π is incapable of giving consent because of infancy, intoxication, unconsciousness, etc.
  166. Consent as a matter of law
  167. 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
  168. If Π gives consent for ONE intentional interference, Δ can be liable for any additional interferences
  169. Exception  When there is an emergency during a surgery; however, the interferences cannot exceed what is necessary to allow physician to seek further consent
  170. CoercionIf Π is coerced into consenting
  171. MistakeThe activity Π received injury in was NOT the activity Π believed he was consenting to
  172. Policy Reasons (i.e. STD)Cannot consent to getting an STD unless STD is disclosed before sex
  173. Insanity
  174. Insanity  NOT a defense to intentional torts
  175. Exception
  176. When someone is completely unconscious
  177. Self-Defense
  178. 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
  179. May only use self-defense to protect own person and cannot claim in cases of retaliation or future threats
  180. No Duty to Retreat Rule
  181. No duty to retreat if Δ is using non-deadly force
  182. Δ has a duty to retreat before deadly force is used
  183. Make my Day Laws
  184. Δ has no duty to retreat if he is attacked in his dwelling by someone who does not reside there
  185. Curtilage
  186. 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
  187. Defense of Others
  188. Δ may use reasonable force to protect another person against attack, subject to the same limitations as own self-defense
  189. Mistake in Self Defense
  190. Must show all the elements of self defense plus “reasonableness of mistake”
  191. Defense of Real Property
  192. Reasonable Belief and Reasonable Force
  193. Spring Traps and Man Traps
  194. Can’t use a spring gun because of morality (Cannot differentiate between friend and foe)
  195. Moliter Manus imposuit To Lay Gentle Hands
  196. Can’t use amount of force that would kill or cause serious injury, based on the idea that we value life more than property
  197. Escalating Force is allowed on theory that you are defending yourself
  198. Recapture of Chattels
  199. Recapture Involves
  200. (1) Possession by owner and (2) purely wrong taking or conversion (3) without a claim of right
  201. Law disfavors help in recovery of chattels
  202. If original transfer was voluntary, then help is not allowed at all
  203. Better course is to use legal remedy
  204. NEVER use force calculated to cause serious bodily injury or death in defense of property
  205. Necessity
  206. 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
  207. Types of Necessity
  208. Private Necessity
  209. 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
  210. The owner of the land may not resist or they may be liable for any damages
  211. INCOMPLETE PRIVILEGE Must pay for damage done during use of other’s property
  212. Public Necessity
  213. Δ may interfere with the land or chattels of others if doing so will prevent injury to the community as a whole
  214. Typically Δ will not have to pay for damages caused

NEGLIGENCE