Professional Documents
Culture Documents
Intent
Act (contracting muscle)
Intent Proper (knowing your finger is on a trigger)
Motive (pointing gun at your enemy)
Intent RST§8A
A person acts with the intent to produce a consequence if:
(a) the person acts with the purpose of producing that consequence; or
(b) the person acts knowing that the consequence is substantially certain to result.
Illustrations:
1. A throws bomb into B's office to kill B. A knows C is in the office. A does not desire to injure C, but knows his
act is substantially certain to do so. C injured. A liable to C for intentional tort.
BATTERY
Illustrations:
1. A, a surgeon, while B is under anesthesia, makes an examination of her person to which she has not given her
consent. A is subject to liability to B for battery but not assault.
3. A, with no intention of wetting anyone, throws water out of his window. He knows B is walking down the street
and of the strong probability that the water will wet B. A is not liable to B if a small quantity of water splashes in
his face but does him no bodily harm.
4. A throws dirty water from his window at B who is walking on a street below. A few drops fall on B's hand but do
him no bodily harm. A is subject to liability to B.
Vosburg v. Putney
If the intended act is unlawful, the intention to commit it must necessarily be unlawful. If your intent proper is to
commit an unlawful act, then your intent is unlawful.
CONVERSION
Illustrations:
1. A, against B's will, forcibly carries B upon the land of C. A is a trespasser; B is not.
5. A erects a dam, intentionally causing water to flood B’s land. A is a trespasser.
6. A intentionally shoots gun over land in B's possession, near the surface. A is a trespasser.
Douherty v. Stepp
There is trespass if the D didn’t damage the land but only entered P’s property. No mistake of fact defense – even
though D thought land was his own, he’s still liable.
TRESPASS TO CHATTELS
Illustration:
1. A, a police officer, mistakenly tells B that his car is under police custody but does not interfere with the car. An
hour later the mistake is discovered. A is liable to B.
3. A leaves his car parked in front of a store. B releases the brake on A's car and pushes it three or four feet, doing
no harm to the car. B is not liable to A.
4. B, desiring to play a joke upon A, pushes A’s car around the corner where it cannot be easily seen by A. A comes
out for his car, and fails to discover it for an hour. B is subject to liability for trespass to A.
Consent
No tort – no prima facie case. Battery is offensive/harmful contact but not all non-consensual touching constitutes
battery – if done in “spirit of pleasantry” (implied consent). *You know consent is implied by looking to
relationship, social conventions, etc. When, under circumstances, individual’s reasonably conveys consent.
Emergency Doctrine
Patient must be unconscious, incapable of consent, and without an agent
Time is of essence
Reasonable person would consent.
Mohr v. Williams
Nonconsensual surgery is battery even though there is no negligence and no bad intent, because there was no
emergency situation.
INSANITY
One who has deficient mental capacity is not immune from tort liability solely for that reason.
McGuire v. Almy
An insane person is liable for damage, regardless of blameworthiness, regardless of nature of mental condition.
When one of two innocent parties must pay, the actor is default.
SELF-DEFENSE
Actor need not wait till the blow is struck – he must reasonably believe another is about to inflict harm.
Only use force necessary to protect against harm – reasonable force.
Actor may act to prevent harm to 3rd person within reason.
Actor need not retreat.
Courvoisier v. Raymond
A person is privileged to act in self-defense if the surrounding circumstances would lead a reasonable man to
believe that he was in danger of losing his life or of receiving great bodily harm, even if the man mistakenly
believed the danger was present.
DEFENSE OF PROPERTY (uninhabited) realty
Possession
Request to depart unless unreasonable
Reasonable force
Bird v. Holbrook
The privilege of defense of property does not apply when the property owner uses a spring gun without notice and
harms an innocent trespasser. It's inhuman to catch a man by causing injury. If the intruder enters forcibly, a
warning is necessary only if it is safe to give one. When the intrusion is peaceable, a warning is necessary.
RECAPTURE OF CHATTELS
Recapture of Chattels
Possession
Wrongful taking—without claim of right
Reasonable force (“hot pursuit” required; a “speedy remedy”)
Recapture of Chattels P&K§22
Privilege is restricted to extreme cases where the emergency justifies the risk of the breach of peace, as when there's
a wrongful dispossession by force/fraud and a prompt repossession. Force must be reasonable, i.e. after a verbal
request if possible. If the owner only suspects the chattel was taken (shop owner suspects person of shoplifting)
owner cannot detain person.
Kirby v. Foster
The privilege of recapture of chattels does not apply to an actor who takes by force money when it was taken under
a good faith claim of right. Here, there was no wrongful taking. If there is a dispute over the money, the dispute
should be handled in court, not by physical violence. Money is not a chattel.
NECESSITY
Danger to life or property
Reasonable action
Liable for damages when protecting private property
Necessity P&K§24
One acts with necessity when he acts to prevent a threatened injury from force of nature or some other independent
cause. “Public” necessity protects the common good and justifies the defendant completely so long as the
emergency is great and he acts reasonably. “Private” necessity protects the person, his property, or a third person
and does not justify the defendant; he must pay for the damage. An honest mistake does not destroy the privilege.
Ploof v. Putnam
The doctrine of necessity allows the trespass to property and chattels when life or property would be in danger
without the trespass. A person may use reasonable force against another who attempts to prevent the trespass.
Assault P&K§10
intentional act
creates an apprehension (not fear)
of an imminent harmful or offensive contact (no actual contact necessary)
o pl must be aware of contact
o apparent ability to carry out threat – pl has to believe there’s a threat
o apprehension has no relation to fear – dignitary harm
Illustrations:
1. A, a scrawny individual, attempts to strike B, the heavyweight champion. B is not at all afraid of A, is confident
that he can avoid any such blow, and in fact succeeds in doing so. A is liabile to B.
Tuberville v. Savage
“Assault is an attempt to offer to beat another, without touching him”: there must be intention as well as an act to
make an assault. Recovery is allowed without actual harm b/c an assault is inchoate violence.
EMOTIONAL AND DIGNITARY HARMS: OFFENSIVE BATTERY
Offensive Battery
1) Intention to cause harmful/offensive contact (not necessarily to the person – extension of the person
covered as well) (intent element is satisfied even if the def only intends to cause apprehension of imminent
contact)
2) Offensive contact directly/indirectly results (not necessarily w/that person’s knowledge) (spitting in the
fact, forcibly removing a hat) (gray area: tap on shoulder, jostling)
Alcorn v. Mitchell
Battery with a malicious, willful, or wanton intention, even w/o real damage, is treated as an invasion of dignity,
and therefore, a battery.
False Imprisonment
1. Intent to confine plaintiff
2. Boundaries fixed by actor – restraint must be total
3. Actual confinement against pl’s will
4. Plaintiff’s awareness of confinement
5. No damages necessary
Bird v. Jones
When there are no fixed boundaries, false imprisonment must include some personal menace or force
accompanying obstruction. There must be complete boundaries, not a simple restriction of movement (i.e.
restriction in one direction but not the other).
EMOTIONAL AND DIGNITARY HARMS: THE INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Illustrations:
1. As a practical joke, A falsely tells B that her husband has been badly injured in an accident. B suffers severe
emotional distress. A is subject to liability to B for her emotional distress.
3. A is invited to a swimming party at an exclusive resort. B gives her a bathing suit which he knows will dissolve
in water leaving her naked in the presence of men and women whom she has just met. A suffers extreme
embarrassment, shame, and humiliation. B is liable to A.
Wilkinson v. Downton
When someone commits a willful or reckless act which causes severe emotional distress in a person in an ordinary
state of health and mind, the malicious intent to cause injury is imputed.
Scott v. Shepherd
If the original trespass is committed and the natural and probable consequence of that act was injury to someone
then the act is illegal and the actor is liable for all consequences, direct or consequential.
Illustration:
1. A, with reasonable care, carries on blasting operations in a closely settled rural district. A has no reason to know
of the presence of B's mink ranch nearby. The noise of the blasting frightens the mink and the fright causes them to
kill their young. A is not subject to strict liability to B for the loss of the mink.
Brown v. Kendall
If an act is lawful, unintentional, and conforms to standard of reasonable care there is no liability for an
unavoidable accident.
Rylands v. Fletcher
When someone has something in/on his land that can cause damage, even if the escape is lawful and occurs w/o his
knowledge or willfulness, if it infringes on another’s right, he is liable for the natural and anticipated damages,
unless it occurs through the other’s default or an act of God.
Hammontree v. Jenner
Liability of actor who causes an accident after suffering unconsciousness as a result of a known illness is not
determined by strict liability, but the principles of negligence.
NEGLIGENCE: THE REASONABLE PERSON
Negligence
1. Duty to conform to standard of conduct to protect others against unreasonable risk
2. Breach, or failure to conform to standard
3. Causation between conduct and injury
4. Damages
Roberts v. Ring (77 y/o man who shouldn’t be driving + 7 y/o kid who jumps IFO his car)
Certain qualifications to the reasonable man standard are made (children must act as reasonable children; blind
must act as reasonable blind; physically infirm must act as reasonable physically infirm) but generally standard is
objective.
Breunig v. American Family Ins. Co. (woman w/ mental history thinks she’s batman)
Generally insanity is not a defense to negligence except when it is such that if affects a person’s ability to
understand the duty of adhering to a standard of reasonable care or ability to adhere to the standard of care is
impaired and there was no forewarning of being subject to insanity.
Fletcher v. City of Aberdeen (blind man who falls into construction zone)
The conduct of an actor w/ a disability is negligent only if it does not conform to that of a reasonably careful person
with the same disability.
Blythe v. Birmingham Water Works (water spigot froze and damaged house)
Negligence is failure to use degree of care that a reasonably prudent person would in the same situation, which is
based on the ideally efficient behavior and does not include preparation for unprecedented or unanticipated events.
Eckert v. Long Island R.R. (guy injured rescuing child from train)
In the event of a rescue, there is an independent duty to child and rescuer, even if child was negligent, unless
rescuer was rash in his belief as to whether he could save the child without serious injury to himself.
Terry Formula – how reasonable is it to rescue? Can’t make a statistic based on one incident.
Magnitude of risk Utility of risk – how likely the rescue will be
Principal object – value of the rescuer Necessity of risk
Collateral object – value of the rescue
Hand Formula: The probability of the accident occurring, the gravity of the injury that results, and the burden of
adequate precautions must be weighed to determine
United States v. Carroll Towing Co. (barge knocked into 5 other barges & the bargee was absent)
The circumstance surrounding an accident must be considered when determining whether someone is to be held
liable for damages.
NEGLIGENCE: CUSTOM
Custom RTT:LPH§13
(a) An actor's compliance with the custom of the community, or of others in like circumstances, is evidence that the
actor's conduct is not negligent but does not preclude a finding of negligence.
(b) An actor's departure from the custom of the community, or of others in like circumstances, in a way that
increases risk is evidence of the actor's negligence but does not require a finding of negligence.
Titus v. Bradford, B. & K.R.R. (guy falls off of railroad b/c it wasn’t secured properly; but it was custom)
Within an industry, the customary usages, habits and risks of business determine the standard of care required to
meet the standard of ordinary care threshold with respect to negligence, because custom is a reflection of what
others expect of an actor. Lack of custom is a prima facie case of negligence.
Disclosure standard - serves a social welfare purpose, danger of paternalism must be balanced
(1) Reasonable (don't need to include obvious, irrelevant info)
(2) Objective (prudent person's decision)
(3) Exceptions (emergency - patient incapable of consent, therapeutic - threat to patient's wellbeing)
NEGLIGENCE: STATUTES AND REGULATIONS
Anon.
Wherever a statute enacts anything or prohibits anything for the advantage of any person that person shall have
remedy to recover the advantage given him/satisfaction for injury done contrary to law by the same statute
Thayer
Noncompliance with a statute counts as negligence per se.
Presumption v. Inference: “must” v. “may” assume existence of one fact from the existence of another
Ybarra v. Spangard (during operation, something wrong happens; all held liable)
In determining liability under res ipsa loquitor when there are several defendants who are potentially liable and
several instrumentalities/possibilities for negligence, everyone is liable for a failure to protect plaintiff from
unnecessary harm while under their care unless doctrine of respondeat superior (where the principal is liable for the
torts of his agents) is enacted.
CONTRIBUTORY NEGLIGENCE
RTT:LPH § 9
If an actor is confronted with an unexpected emergency requiring rapid response, this is a circumstance to be taken
into account in determining whether the actor's resulting conduct is that of the reasonably careful person.
Butterfield v. Forrester (plaintiff riding horse “violently” hits pole put across road by def)
Contributory negligence bars recovery, because the final cause is the ultimate cause of the injury. Had plaintiff
been going slower, he would have seen the pole.
Negligence - conduct creates undue risk of harm to others, requires duty/obligation of conduct to another
person
Contributory Negligence - conduct creates undue risk of harm to actor, requires no duty (really contributory
fault)
Fuller v. Illinois Central R.R. (70 yr old wagon driver hit by train that didn’t warn him/slow down)
Contributory negligence will not defeat an action when the defendant’s exercise of reasonable care would have
avoided the accident causing injury.
Last Clear Chance doctrine = negligence after contributory negligence after negligence (sole responsibility on
person w/last clear chance to avoid injury)
ASSUMPTION OF RISK
Lamson v. American Axe & Tool Co. (hatchet fell from a badly built rack)
A plaintiff assumes the risk of injury if the likelihood of injury does not depend on someone else’s negligence but
on the permanent conditions of surroundings, plaintiff’s continued presence in them, and his rejection of the
opportunity to exit those conditions.
Li v. Yellow Cab Co. (crossed 3 lanes of oncoming traffic to make left turn, guy who hit him was speeding)
Pure comparative negligence assesses liability in direct proportion to fault, but different forms of comparative
negligence are available.
Joint liability: Situation where each of several obligors, anyone can be responsible for entire loss where others are
unable to pay
Several liability: Each person has an obligation parallel to that of others - share of any judgment against one party
is not increased by default of another
Joint and several liability: Any situation where obligors are joint to obligee, and bear several liability amongst
themselves
Right of plaintiff against each def, and rights of defs against one another
Either tortfeasor is liable for entire loss
Union Stock Yards Co. v. Chicago R.R. (terminal and r.r. inspected and missed defective part)
One of several wrongdoers cannot recover from another wrongdoer even if the first was compelled to pay damages
for whole injury, unless they are not equally at fault (although a plaintiff can fully recover from either party).
Plaintiff can get full recovery from either defendant, but a defendant can’t turn around and sue the other defendant
if they are equally at fault; if one def is more at fault than the other, you can.
NY Cent R.R. v. Grimstad (barge not equipped w/safety equipment, captain drowned)
In order for the barge owner to be negligent, the lack of safety equipment must have been a “but for” cause of the
captain’s death as well as a substantial factor in it. Therefore if the probability of the captain drowning would have
been more than 50% even w/life saving equipment, the lack of it is not a substantial factor/but for cause of his
death.
Intentionally Tortious Or Criminal Acts Done Under Opportunity Afforded By Actor's Negligence RST §
448
When an actor’s negligent conduct creates a situation that which affords an opportunity for a third person to
commit a tort, then the act of that third person is a superseding cause of the harm, unless the original actor realized
or should have realized the likelihood that the situation might be created and that a third person might avail himself
of the opportunity to commit the tort. (Brower wagon theft case)
Risk Of Physical Harm Not Generally Increased By Tortious Conduct RTT:LPH § 30
An actor is not liable for physical harm when the tortious aspect of the actor's conduct was of a type that does not
generally increase the risk of that harm.
Brower v. New York Central (wagon and train crash, contents of wagon stolen)
Although an intervening cause may occur, it does not necessarily break the chain of causation if the intervention is
still within the foreseeable consequences of negligence. If it is not a superseding intervening cause, it is merely a
concurrent cause which is not sufficient to break the chain of causality.
Overseas Tankship v. Morts Dock (Wagon Mound I) (carelessly discharged oil set fire to dock later)
Overturns Polemis: Man must be considered to be responsible for the probable consequences of his act because
consequences that are natural or necessary or probable should have been foreseen (reasonable man would have
foreseen the consequences and therefore had a duty not to cause them; he should have met standard of care).
FORESEEABILITY
Consequences:
1. Type of harm: only held liable for injury of same general kind that they should have reasonably seen
and acted to avoid
2. Manner of harm: general character/type of harm and not its precise nature, detail, or manner of
occurrence
3. Extent of harm: if can see nature of harm done, even if extent of that harm is larger than was
foreseeable
Plaintiffs:
1. Plaintiffs harmed: not held for unforeseeable plaintiffs: no duty and hence no negligence toward the
unforeseen plaintiff (unsettled in US), only to plaintiffs of same general class of those toward whom
harm can be foreseen
PROXIMATE CAUSE (HEREIN OF DUTY): EMOTIONAL DISTRESS
Negligent Infliction Of Emotional Disturbance Resulting From Bodily Harm To A Third Person RTT § 47
An actor who negligently causes serious bodily injury to a third person is subject to liability for serious emotional
disturbance thereby caused to a person who:
(a) perceives the event contemporaneously, and
(b) is a close family member of the person suffering the bodily injury.
Duty P&K § 53
Duty is a question of whether the defendant is under obligation for the benefit of the plaintiff.
In negligence, there is always a duty to conform to the legal standard of reasonable conduct.
Changing social conditions lead to new duties. Courts will find a duty where reasonable persons would
recognize the duty would exist.
Limited Duty: Acts and Omissions P&K§56
Misfeasance is an act where the defendant created a new risk of harm
o liability extends to any person who reasonably anticipates the harm
Nonfeasance is an omission or failure to protect the plaintiff from the harm, where the defendant has made
the situation no worse.
o it’s necessary to find some relation between the parties, such that social policy justifies a duty to
act.
o Courts are “shocking to the extreme” in their refusal to hold a person liable for failing to rescue one
in danger. The issue is the difficulties of setting any standards of unselfish conduct required
(slippery slope)
Exceptions to the general rule
o Duty to aid common carrier/passenger, ship/seaman, employer/employee, host/guest,
shopkeeper/visitor, jailer/prisoner, etc.
o When you affirmatively act, you have a duty not to worsen the situation: “The good Samaritan
may find himself mulcted in damages, while the priest and the Levite who pass by go on their
cheerful way rejoicing.”
o If the def has made the situation worse, either by increasing the danger, by misleading the pl into
thinking the danger was removed
o If the def deprives the pl of help from other sources
Owners and Occupiers of Land: Trespassing Adults P&K§58
Possessor of land is not liable for injury to a trespassor when the owner fails to put his land in a safe
condition.
However, frequent trespass upon a limited area where def knows of frequent entry and should exercise
care.
Discovered trespassers: def is liable once trespasser's presence is known, landowner must refrain from
injury by willful/wanton conduct; but if the trespasser is perceived to be in a situation of peril/danger & the
landowner is notified, there is a higher duty.
Owners and Occupiers of Land: Trespassing Children P&K§59
There are conflicting interests between the freedom of the use of land and the protection of children.
Negligence is determined by weighing the probability and the gravity of the possible harm against the
utility of the def's conduct and the cost and trouble of reducing the risk
Landowner or occupier, rather than parent, is often in best position to protect straying child against dangers
on the land
In cases of "attractive nuisance," the landowner is liable, but only w/ unnatural conditions
If child is old enough to appreciate the danger, the owner is not liable.
Owner must have been able to anticipate that a child would trespass and get injured.
Owner must known of dangerous condition, or have reason to know of it.
AFFIRMATIVE DUTIES: THE DUTY TO RESCUE, CONT’D
SPECIAL RELATIONSHIPS
Boomer v. Atlantic Cement Co. (community wants injunction on cement plant operations)
Traditionally, the rule was that where there is a nuisance and substantial damage, an injunction is granted, even if
there is a disparity in economic consequences of injunction and nuisance. But if an injunction means holding one
cement plant to a higher standard than the rest of the industry, and payment of permanent (current and future)
damages to plaintiffs will "fully" compensate them, injunction is unwarranted.
NUISANCE: PUBLIC NUISANCE
DAMAGES
Types of Damages
(1) Non-pecuniary: physical and emotional consequences of injury (pain and suffering, loss of enjoyment)
(2) Pecuniary: economic consequences of injury (medical expenses, lost earnings, custodial care costs)
Components:
Pain and suffering
Expenses
Lost earnings
O’Shea v. Riverway Towing (lost wages computation for towboat cook negligently injured)
Computation must take into account the current wages, income taxes, annual expected percentage of increase in
wages, expected years of work remaining, and the discount to present value, as well as any "mitigation" (potential
alternative employment). The computation must take inflation into account at both ends or at neither end.
CONTINGENCY FEES
Pl's atty takes compensation only out of the funds the pl recovers.
Pros:
o enables pl to pursue meritorious claims even w/o funds.
o feared abuses won't occur since lawyers can choose cases w/ greatest chance of success.
o can give incentive against bringing frivolous lawsuits.
Cons:
o stirs up needless litigation
o allow a lawyer to collect enormous payments when settling easy cases
FEE SHIFTING
--Atty's fees are rarely awarded - only when one side advanced a claim/defense that was frivolous or malicious.
LOSS OF CONSORTIUM
Loss of consortium occurs when the person does not die but is injured such that he no longer functions as
he used to.
Today, American courts allow wives and husbands to sue for loss of consortium. Debate now centers
around suits by children whose parents have been injured/killed.
Generally, unmarried couples are not granted action for loss of consortium unless they have a common-law
marriage.
PUNITIVE DAMAGES