What Are Torts?Emendatory system of justice corrective

Goals of the Law of Tortsframe tort arguments through these principles to be persuasive

prevention of self-help by victims and their relatives and friends against those who have caused injury

retribution against wrongdoers

deterrence of wrongdoers

compensation for the victims of wrongdoers

redress of social grievances

corrective justice and civil redress

fairness

How the Court analyzes Cause of ActionCourt looks to legal commentators and law review for understanding of invasion of privacy

looks to common law protecting similar elements to find a fitting precedent

when looking for precedent look as close to home as possible and slowly expand net. (state federal regional nation maybe international with similar legal system/principles)principles applied in one area may not make sense in another area

look to similar jurisdiction

How does an inherently conservative institution deal with change?a backward look court system must compensate for an evolving worldjump in railroad cases when railroad are new because there is no precedent to look to

the gut feeling is an important aspect

Roberson v. Rochester Folding Box Co. (9-16)the court's role in determining cause of action

Legislature must create the cause of action before the court may find it

Case of Thorns (26)intent is not always a requirement

The person who takes an action that unintentionally results in harm is still responsible.

Trespass an action taken against another that results in damage

Trespass on a Case damage given without intent

Weaver v Ward (27)inevitability

If the action was inevitable and the defendant did not act with negligence, the defendant is not at fault.

Erases distinction between Trespass and Trespass on the Case.

Brown v Kendall (27-31)burden

Plaintiff must hold burden to prove defendant's liability

Intentional Torts when the defendant tried to harm the plaintiffIntent (Restatement 3rd) 1 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.

Jackson v. Brantley (36-39)knowing and purposefully

Defendant must have knowingly and purposefully taken the action that resulted in the horses being on public highway

the consequences of his act are certain or substantially certain to result from his intentional conduct

intended to produce the consequences which in fact occurred

intent can be shown when the consequence is substantially certain to occur (40)

Beauchamp v Dow Chemicals (40-43)substantial certainty

Intention Tort requires defendant to produce contact knowing harm is substantially certain to occur from the contact

Substantial certainty should not be equated with substantial likelihood too low a bar

Test for Intent (varies by jurisdiction)Substantial certainty test injury is substantially certain to occur as a consequence of the defendant's actionapplication of the test should be limited to situations in which the defendant has knowledge to a substantial certainty that the conduct will bring about harm to a particular victim or to someone within a small class of potential victims within a localized area

True intentional tort test defendant truly intended the injury as well as the act

Battery (Restatement 2nd) 13An actor is subject to liability to another for battery if: (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person or an imminent apprehension of such a contact AND

(b) a harmful or offensive contact with the person of the other directly or indirectly results.

Assault (Restatement 2nd) 21(1) An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, AND

(b) the other is thereby put in such imminent apprehension.

(2) An action which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

Masters v. Becker (44-45)elements of battery

An actor is liable for battery if:(a) he acts intending to cause harmful or offensive contact with the person of the other or a third person or an imminent apprehension of such a contact, and

(b) a harmful and offensive contact with the person of the other directly or indirectly results

Does not require proving defendant intended to injure and to create specific injury that occurred

Brzoska v. Olson (47-52)standards for battery

Doctor had AIDs and patients sue for assault and battery

patients lose

Actual Exposure Test requires a plaintiff to show actual exposure to a disease-causing agent as a prerequisite to prevail on a claim based upon fear of contracting disease

Lack of consent is an element of battery.

Single Intent Standard Intent necessary for battery is the intent to make contact, not the intent to cause harm

Dual Intent Standard used by some other jurisdictions Intent necessary for battery is the intent to make contact, and the intent to cause harm

Dickens v. Puryear (53-55)assault and battery vs intentional infliction of emotional distress

Assault is an offer to show violence to another without strikingmust put other in apprehension of an imminent contact

threatened party has expectation of no significant delay

Battery is the carrying of the threat into effect by the infliction of a blow

Intentional infliction of mental distress is threats for the future because they are not imminent or immediate.

Singer v. Marx (56-59)transferred intent

An infant who forcibly invades the person of another is liable for a battery regardless of an intent to inflict injury. Only intent of action is necessary (57)

Defendant intentionally aiming injury at one party and injurer another is still liable for intentional tortthe injury being direct, natural and probable consequence of the wrongful act (58)

Typically parents are not held vicariously liable for actions of children (59)

licenses of the playground by being involved in an activity, there may be consent to the contact (59)

White v Muniz (60-64)insanity as a defense

Battery contact requires the contact also intended to be harmful or offensivedual intent

mental capacity as a defense only effective in dual intent jurisdictionmakes it harder to prove intent for contact to be harmful

(Restatement 2nd) 895Jone who has deficient mental capacity is not immune from tort liability solely for that reason

A jury may find an insane person to act intentionally if he intended what he did, even if the reason for such actions was irrational (64)

Hellriegel v. Tholl (73-76)consent as a defense

Consent is typically a defense to battery

Consent assumes the risk of accidental injury

Consent cannot be given under duress such as when plaintiff consent to activity to protect self

Consent is to activity, not injury

Consent is not always verbal may be implied by circumstance (77)

Consent through fraud, duress, or nondisclosure of material fact is not consent.

Consent to a game is not consent to injury against the rules of the game (78-79)

Mulloy v. Hop Sang (79-81)medical consent

Implied consent typically for what is necessary to save a life or other important interestsoverridden by voiding consent

Doctor acting against expressed wishes of patient still liable for battery and trespass

still liable for damages for trespass even if position of the patient was improved

Lane v. Holloway (89-91)injury in a fight

Ex turpi causa oritur non actio a plaintiff cannot sue for damages if they arise in connection with his own illegal act

Volenti non fit injuria voluntarily participating in a fight where both parties accept risk of incidental injury

these doctrines do not account for injury non-proportionate to the fightdefendant may still be liable for especially sever blow not in proportion to fight

Provocation is not relevant to the issue of compensatory damages (91)

Provocation is relevant to issue of punitive damages

Silas v. Bowen (91-95)self defense

Defendant may use reasonable force to eject party who is trespassing on property

Reasonable Force is not typically with a deadly weapon (ie gun)Deadly weapon may be authorized if conduct of trespasser puts reasonable person in apprehension of assault by trespasser

Non-Deadly Use of Force (Restatement 2nd) 63permits one to defend himself from harm by using non-deadly force even if he could have avoided injury by retreating

Deadly Use of Force (Restatement 2nd) 65force threatening death of serious bodily injury cannot be justified if retreat is possible unless the defender is attached within his own dwelling or is defending his own dwelling against intrusion or dispossession

many jurisdiction have not adopted retreat to the wall doctrine (96)

Castle Doctrine is similar and often codified by statute

Defense of others (Restatement 2nd) 76gives person the right to use force to protect third persons under the same conditions and by the same means as those under and by which he is privileged to defend himself if the actor corrected or reasonable believes that the circumstances are such as to five the third person a privilege of self defense AND

the actor's intervention is necessary for the protection of the third person

common law has actor step into shoes of third person to justify use of force in defense circumstance interpreted from third person's point of view. Restatement interprets from actor's point of view

Force in Prevention of a Felony (Restatement 2nd) 143deadly force may not be used in order to prevent the commission of a felony unless the felon is one threatening death or serious bodily harm or involving the breaking and entry of a dwelling place

Force is Arresting for a Felony (Restatement 2nd) 131deadly force may be used if reasonably necessary in order to arrest a person for a felony

Trespass to Land (trespass quare cllausum fregit) onto the property of another; invasion of the possessor's interest in exclusive possession of land (69)only intent necessary is action that constitutes invasion of land (67)involuntary action is not intentional trespass (68)

trespass is cause of action for nominal damages even if no actual damage or defendant was acting in good faith (68)no cause of action with privileged entry ie consent or implied consent

Trespass ab initio when a person lawfully entered land then abuses that privilege through conduct of tortious act (69)will be considered to have trespassed from the start

not generally applied when consent or invitation was given to enter property

Trespass to Chattel (trespass de bonus asportatis) wrongful taking of chattelsonly requires defendant acted voluntarily (71)

nominal damages permitted when defendant dispossessed plaintiff of chattel

mere interference with chattel will require showing of damages

Conversion intentional exercise of dominion or control over a chattel 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 (72)

Brown v. Martinez (97-101)use of force to defend property

There is no privilege to use force calculated to cause death or serious bodily injury when only property is threatened

person may not use force to threaten great bodily harm or endanger life absent threat or use of force by trespasser

Use of force to recapture property (see 103)never may use deadly force

Use of force in Discipline (see 104)

Destruction of property as a public necessity (see 105-108)

Ploof v. Putnam (108-110)doctrine of necessity

Doctrine of Necessity applies with special force to the preservation of human lifeentry upon the land of another may be justified by necessity

The right to life trumps the right to property (or any other right)

Vincent v. Lake Erie Transportation Co. (110-114)balancing rights of property

Damages done to one's property by forces beyond human control are not recoverable

Damages that occur because one party took action to prevent damage to their own property are recoverableUsing someone else's property to prevent damages to your own property makes you liable for those damages.

Defendant prudently and advisedly availed itself to the plaintiff's property for the purpose of preserving its own more valuable property and the plaintiffs are entitled to compensation for the injury done.

DISSENT (113-114)If the boat was lawfully in position at the time the storm began and the defendant could not leave that position without damaging his own property, then the damages to the dock was a result of inevitable accident.

Negligence did not have intent but should have known

Negligence Restatment (Third) of Torts 3A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.

Duty Restatement (Third) of Torts 7(a) An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm.

(b) In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.

Vaughan v. Menlove (121-125)reasonable caution

A person has the right to do what they want with their property until it harms another person's property.

Negligence if the person does not exercise reasonable care under all the circumstanceconsider whether conduct lacks reasonable care, foreseeable likelihood of the result, foreseeable severity of harm

Duty An actors ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harmmust exercise reasonable caution as a prudent man

Duty may vary by policy or principleage as an issue see 136

Delair v. McAdoo (126-128)reasonable person

A reasonable person is the average person with the same background and experience.

Objective standard

The reasonable person is assumed to have certain common knowledge and is responsible for knowing particular facts (such as the state of their vehicle)

(see 128 for Holmes quote on matter)

Charbonneau v. MacRury (129-135)reasonable man standard

Reasonable care under all circumstance of the particular case

Rule of Reasonable Conduct constant, but the reasonably ascertainable defects of the actor, whether adult or minor, are circumstantial to be considered in its application.

Child expected to exercise reasonable care as would ordinarily be exercised by the great mass of children of the same age, experience, capacity, and understanding SEE GOSS for reversal

Goss v. Allen (137-142)children and reasonable care

Children may be held to an adult standard of care when engaging in adult activities such as driving (reverses Charbonnau)

Children engaged in activities regularly engaged in by children (such as skiing) still apply a child's standard of care

Children Liability for Physical and Emotional Harm Restatement (Third) of Torts 10(a) A child's conduct is negligent if it does not conform to that of a reasonably careful person of the same age, intelligence, and experience, except as provided in Subsection (b) or (c).

(b) A child less than five years of age is incapable of negligence. (c) The special rule in Subsection (a) does not apply when the child is engaging in a dangerous activity that is characteristically undertaken by adults.

Emergency Liability for Physical and Emotional Harm Restatement (Third) of Torts 9If 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.

Disability Liability for Physical and Emotional Harm Restatement (Third) of Torts 11(a) The conduct of an actor with a physical disability is negligent only if the conduct does not conform to that of a reasonably careful person with the same disability.

(b) The conduct of an actor during a period of sudden incapacitation or loss of consciousness resulting from physical illness is negligent only if the sudden incapacitation or loss of consciousness was reasonably foreseeable to the actor.

(c) An actor's mental or emotional disability is not considered in determining whether conduct is negligent, unless the actor is a child.

Haley v. London Electricity Board (145-148)duty to foresee harm

It is the duty of an actor to reasonably foresee harm their conduct may create

Reasonably foreseeable is determined with regard to common knowledge

Barker v. City of Philadelphia (149-152)specialized knowledge for reasonable persons

A person who is employed to fulfill a particular job and has done so for some time has specialized knowledge in that job

A reasonable person is an objective standard, however it does take into account circumstance and experience of the individual.A reasonable person with the same training, specialized knowledge, and circumstance.

Foreseeability of the specific harm is not always required.If some form of injury is foreseeable and a different injury results, the defendant is still liability

Knowledge And Skills Liability for Physical and Emotional Harm Restatement (Third) of Torts 12 If an actor has skills or knowledge that exceed those possessed by most others, these skills or knowledge are circumstances to be taken into account in determining whether the actor has behaved as a reasonably careful person.

U.S. v. Carroll Towing (153-155)B