Tort Outline

•I. INTENTIONAL TORTS

•Battery
•intentional affliction of harmful or offensive bodily contact
•voluntary act
•intent - purpose to bring about contact or apprehension of contact. 2 prong to satisfy:
•purpose - either having the purpose of causing contact (does not need intent to injure)
•or substantial certainty - or the knowledge that the contact is substantially certain to be produced
•*can have transferred intent. accidently hits B when u intended to hit A (from people to people only)
•**DO NOT need intent to INJURE
•harmful or offensive contact
•could be indirect. Dailey - moved chair so body contacted ground
•contact to the person (or thing so closely identified to the person - like a cane or clothing, camera is borderline)
•contact must be harmful or offensive (to a reasonable sense of personal dignity)
•unless you are aware of a hypersensitivity and seek to exploit that hypersensitivity
•offensiveness depends on the context (bar scene v funeral)
•lack of consent
•if dr removes cancerous growth without your consent - its a battery even if it is beneficial to person. If person is
unconscious, courts may imply the consent if in a life threatening emergency
•Assault
•same elements of battery (voluntary act, intent)
•apprehension of harmful or offensive contact about to occur to u - instead of contact
•must have a threat - intended to cause contact or apprehension of contact which results in a well founded
apprehension of contact
•must be imminent contact - no time delay of significant amount, cant be fear of future contact, cant be
conditional (give me your camera or ill beat u up)
•False Imprisonment
•voluntary act, intent
•2 prong, lack of consent AND confinement
•if person is free to leave - no confinement - if means of escape is reasonable
•if escape is dangerous or unreasonable, not considered a means of escape
•merely not allowing a person to go where they want to go is not false imprisonment
•has to consciousness of confinement
•unless baby in vault - confinement causes harm - baby gets dehydrated
•Consent
•can imply consent - to be tapped on shoulder while in line to movies, also say its not offensive
•engaged in games (like dodgeball) - you consent to contact
•if you violate some the rules of the game (fouls), still may be considered implied consent
•boxing - consent - some courts say since it is really a fight, there is no consent
•Self-defense
•privilege to use force in self-defense turns on victim's reasonably belief that force is necessary solely to prevent
further intrusion that cannot be avoided by waiting for legal redress
•can use reasonable force and only reasonable force according to threat
•can use deadly force only if there is a threat of serious bodily injury
•Intentional infliction of emotional distress
•if u intentionally cause sever emotional stress that makes it reasonably foreseeable that bodily harm will result
•Traynor - Siliznoff - free standing tort for mental suffering due to intentional, serious threats of emotional harm
•de facto broadening of emotional harm
•modern tort - cause of action of ii of emotional stress, even if there is no physical harm, if the conduct of D is extreme
and outrageous (beyond general notions of decency - people would call "outrageous") - but if there is a known
susceptability, exploiting this would satisfy tort
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•intentionally or reckless causes severe emotional stress, look at the intensity & duration to gauge severity, but
do NOT need physical harm
•Defense of property
•cannot use deadly force
•cannot use wounding force on outlying premises
•II. ORIGINS OF NEGLIGENCE LAW
•Ordinary care (1850 Shaw opinion)
•not at fault if D used "Ordinary care" - the kind and degree of care, which prudent and caution men would use, such
as is required by the exigency of the case, and such as is necessary to guard against probably danger
•P must prove D acted without ordinary care = fault in first case - birth of fault system
•Professor Gregory view
•Shaw desired to make risk-creating enterprise less hazardous to investors & entrepreneurs
•assumption of risk doctrine - workers assume risk by working
•fellow servant doctrine - co not liable for accidents between employees
•ruthless but helped establish industry by subsidizing entrepreneurs
•industrial revolution - particularly railroads
•Holmes view
•praised Shaw for his accurate appreciation of the requirement of the community - understanding of the grounds of
public policy to which all laws must ultimately be referred
•fault principle - liability should fall where it falls if act is unforeseen and unintended - cannot punish all acts which
inherently come with some risk of harm - need reason for shift loss (fault)
•court system too expensive to be an insurance company
•Posner view
•thought tort system was a mechanism for deterrence - liability placed where it would be most effective to reduce
dangers (Strict Liability)
•generate rules of liability to bring about the most efficient - cost justified - level of accidents and safety
•III. NEGLIGENCE PRINCIPLE
•Ordinary care/Reasonable care (1919 Cardozo opinion)
•duty to adopt all reasonable precautions to minimize resulting perils
•"Reasonable care" and "Ordinary caution" to prevent harms in the range of "Prudent foresight"
•basically followed a learned hand test: weighed probability of accident, magnitude of loss, cost of avoiding -
emphasized foreseeability and ability to avoid harm with reasonable/ordinary care
•Learned Hand Negligence Test (1947 opinion)
•economic formula of ordinary care to establish negligence
•weigh [magnitude of loss if accident occurs x probability of the accident's occurring] vs [burden of taking
precautions that would avert the accident]
•Posner - against SL & Hand Test
•rule making enterprises liable for accidents would not induce enterprise to increase safety since they would pay
tort judgments to accidents instead - AND overall economic value would be diminished by incurring higher
accident-prevention cost in order to avoid lower cost accident
•in McCarty (1987) - majority opinion by Posner - parties cannot give info to quantify variables of Hand formula -
has greater analytic (rather than operational) significance since hard to quantify personal injuries. juries force to
make rough judgments of reasonableness, intuiting rather than calculating - so long as their judgment is
reasonable, trial judge has no right to set it aside
•Reasonable Person Standard
•external, objective standard that measures conduct (not state of mind) of what the Reasonable prudent person
would do in the circumstances
•represents general average of the community in foresight, caution, courage, judgment, self-control, altruism.
considers:
•reasonable risk of injury (in light of the utility of the conduct)
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•extent of the risks posed by her conduct
•likelihood of a risk actually causing harm
•alternatives that would achieve same purpose with lesser risk
•costs of various courses of action in determining what is reasonable
•Holmes - law does not view men as God does - when men live in society, certain average conduct necessary to
general welfare of society
•if u fall below ordinary prudence and intelligence - it is your misfortune
•exception - distinct defect of nature (blind, deaf, infants)
•mental ability too vague, there would be no rule at all (unless pronounced insanity incapacitating sufferer from
complying with rule broken)
•total loss of consciousness okay - not "impaired" consciousness
•superior attributes taken into account (asymmetry of law)
•children (blended standard - reasonable person of that age, intelligence, & experience, unless engaged in adult
activity)
•Emergency doctrine - some states hold person confronted with unforeseeable occurrence (shortness of time to
react), the circumstance that the D must act quickly is relevant
•Rules of Law
•Holmes 1927 opinion - judges should lay down law in reoccurring negligence cases
•RULE - driver must get out and look if not sure if train is oncoming at railway crossings
•role of jury should shrink overtime
•3 anomolies of judges during time of Holmes
•1. objective standards - held ppl to standard they could not meet, not subjective according to true
blameworthiness (eliminate questions of fact for jury)
•2. contributory negligence - instead of comparative negligence making both pay 50/50 - or whatever proportion
of their contribution to the accident (eliminate questions of fact for jury)
•3. rules of law (icing on the cake for not allowing cases to go to the jury)
•*Why 19th century? - railroads were new during period, dangerous, juries were from small communities and
would be sympathetic to victim
•juries were applying SL instead of negligence for this reason
•today - usually cases go to the jury - no rules of law
•Cardozo 1934 opinion - need caution in framing standards of behavior that amt to rules of law
•extraordinary sutations may not fairly or wisely be subjected to tests or regulations that are fitting
•rule can be futile or even dangerous in some cases
•Role of Custom
•evidence of custom is not dispositive - custom and reasonableness may diverge drastically
•jury must decide what is a reasonable custom under all the circumstances to decide negligence (just as it would
decide what is reasonable conduct)
•if custom has not been followed, D must have been aware that others are doing it in a safer way and the alternative
that might be safer must be feasible
•Role of Statutes
•whether a statute requires particular course of action under the circumstances
•legislatures often pass statutes establishing standards of care for common situations
•intended to promote safety by establishing standards of conduct for particular situations. impose small criminal
penalty, but say nothing of negligence in a civil action for damages
•generally - a reasonable person obeys the law so evidence that person ignored/disobeyed law will usually suffice to
establish negligence
•not negligence per se tho - automatic adoption of general legislative standards are too rigid - must look at individual
circumstances
•Holmes - "life of the law has not been logic; it has been experience"
•imposing liability is some unusual cases looks more like strict liability than liability based on fault
•Negligence Per Se with "Excuse"
 Tort Outline
•allows jury to consider violation of statutory standard, but is not conclusive
•hold an Unexcused Violation of the relevant statute is negligence per se - allows party who violated it to offer
evidence of an excuse or justification for doing so
•Restatement 2nd - Section 228A adopts this view, provides following examples:
•incapacity, lack of knowledge of need to comply, inability to comply, emergency, compliance poses greater
risk than violation
•or other reason (these are not exclusive)
•if excuse present - case goes to jury to decide if acted reasonable under all circumstances, including violation,
excuse, etc
•burden on P to prove D did not act reasonably
•Rule of the Road v Life and Limb Statute
•rule of road - some evidence of negligence
•compliance in some circumstances would make person less safe
•life & limb - negligence per se
•IV. PROOF OF NEGLIGENCE
•Constructive Notice
•slip & fall cases - evidence dangerous condition was visible and apparent & existed a sufficient length of time prior to
accident to permit D or D employees to discover and remedy the condition
•indirect evidence - length of time key to proof of negligence - condition of substance often used
•Business Practice Rule
•relieves burden of P to show how long condition existed - constructive notice not needed
•merchant bear burden of showing what steps were taken to avoid the foreseeable risk of harm
•start w/Vermont 1970 - self-service or other method that carries with it a corresponding duty of care by the store
to use reasonable measures to discover and remove from the floor debris which may have been dropped or knocked
to the floor by customers
•expanded to different types stores - boxes stacked in isles/creme rinse; but federal court applying Vermont rule
warned if u keep expanding, swallows norm rule - limits by requiring P to show how method of selling thing
slipped on was specifically dangerous
•sorta like SL - fact of injury usually means negligence to jury - very P friendly - no causal link between negligence
and the accident
•Res Ipsa Loquitur
•mere fact of accident occurring affords prima facie evidence of negligence
•3 factors:
•1. accident must be a kind which ordinarily does not occur in the absence of someone's negligence
•2. must be caused by an agency or instrumentality within the exclusive control of D
•can have multiple D's (hospital operation case)
•can have unknown instrumentalities (if victim was unconscious)
•3. must not have been due to any voluntary action or contribution on the part of the P
•Inference View - some states - jury can but does not need to infer negligence - inference can be dispelled if u find D
acted reasonably - D may still win unless P provides enough evidence that they were unreasonable
•CA gives more weight to res ipsa loquitur - keeps burden of proof on D - if no evidence (threshold of proof) -
negligence
•Products Strict Liability
•Development
•Ryan case - 1931
•implied warranty that product will be a certain quality - judge made doctrine
•does not have to prove negligence - just show a breach (contract law) - breached by putting defective product
on the market
•damages should not be limited to cost of product
•MacPherson - reclassified food defects as tort from negligence
•consumer can sue retailer, retailer can later sue manu
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•building a doctrine - direct action between consumer --> manu
•Traynor concurring opinion in Escola CA 1944 - intro manu defect SL
•manu is strictly liable for defective product it places on market that causes injury to human
•even where no negligence - public policy demands cost fixed where it will (1) most effectively reduce hazards
to people AND (2) most effectively be distributed among public as cost of doing business
•Traynor majority opinion in Greenman CA 1963 - intro design defect SL
•negligence as well as breach of warranty from defective design of power tool that caused injury
•echoing Escola concurrence - "manu is strictly liable in tort when article he places on market, knowing it will
be used without inspection for defects, proves to have a defect that causes injury to a human" - cost born by manu
rather than innocent victims who are powerless to protect themselves
•Traynor majority opinion in Vandermark CA 1964 - manu & retailer held SL
•held manu AND retailers SL
•manu cannot be insulated by delegating responsibility to retailer
•retailer is an integral part of producing and marketing enterprise, may be able to ensure product
safety, and was one link on chain P can conveniently sue
•max protection to P but no injustice to D bc they can spread cost as part of doing business
•Contractual Disclaimers are immaterial
•Elmore CA 1969 - bystanders protected by SL
•if anything, greater reason to protect bystanders than buyers since they have no opportunity to inspect for defects
before injury
•SL also applied to Commercial Lessors, Franchisors
•No SL to companies that finance purchases by others, or for defects in products merely used as part of rendering
service
•Manufacturing Defect
•product comes off assembly line diff from & more dangerous than intended product
•defect usually apparent by time of trial
•does not matter when defect developed - all Ds manufactures/retailers/lessors are held SL
•only true SL product claims - does not matter how defect occurred as long as manu defect is shown
•Design Defect
•more difficult issue bc most products have some inherent risk, where to draw line?
•generates vigorous defense bc so much at stake - asserts that all units of product are defect, not singular manu
defect product - plus open floodgates to other similar claims from product's buyers
•defect may emergy from mind of designer as well as from the hand of the workman
•Restatement - "unreasonable dangerous" standard applies in both context
•Restatement (2nd) of Torts, section 402A - authorizes recovery:
•1. by a user or consumer
•2. from a seller
•3. who is engaged in the business of selling the product
•4. for physical harm
•5. caused by the defective product
•6. that is unreasonably dangerous
•**fault in NOT an element of the claim - creates SL - although many courts require proof of fault in many
product liability cases (nearly same as negligence claims)
•Section 402A (2nd Restatement) - Ordinary Consumer Expectation TEST - product is unreasonably dangerous if:
•it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases
it, with the ordinary knowledge common to the community as to its characteristics
•not always conclusive bc consumer has no idea how safe a product could be made
•P favors bc more intuitive, does not require P demonstrate a safer design, may allow no expensive witness
•Section 2(b) (3rd Restatement) - Excessive Preventable Danger TEST - jury finds risk of danger inherent in the
challenged design outweighs the benefits of such design
 Tort Outline
•gravity of danger posed by the design, likelihood that such danger would occur, the mechanical feasibility of a
safer alternative design, financial cost of an improved design, adverse consequences to the product and to the
consumer that would result from alternative design
•more than mere negligence - jury focus in on the condition of the product, not the manu's conduct
•burden shifts to D to provide evidence that product should not be judged defective
•majority of states now apply this approach - nothing like broad acceptance Restatement 2nd received
•differences in Restatements
•** explicitly categorizes claims into manu or design defects or failure to warn claims
•requires P to demonstrate an alternative design that would eliminate risk, imposes evidentiary & costly/time
consuming proof problems - must show technically feasible & practicable in terms of cost & design of product
•unified claim for design defect (replaces claims based on negligence, warranty, SL, etc) - liability exists if and
only if standard met
•establishes a new products liability regime rather than "restating" current doctrine since it was only supported
by ONE case
•Barker CA 1978 - product is defect if it fails EITHER test
•Ordinary Consumer Expectation - if this is satisfied, move on to next prong:
•Excessive Preventable Danger
•*P friendly approach
•Soule CA 1994
•reserved Consumer Expectation test for cases in which the everyday experience of product's users permits a
conclusion that the product's design violated minimum safety assumptions - expert opinion not allowed to
demonstrate what an ordinary consumer would or should expect