Term
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Definition
| Liable for battery if (a) there is intent to cause a harmful or offensive contact, or an imminent apprehension of such contact, and (b) a harmful [or offensive] contact directly or indirectly results. |
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Term
| A. Elements for Prima Facie Case of Battery |
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Definition
a. Act by Defendant
b. Intent
c. Harmful or Offensive touching
d. Causation
e. Lack of Consent |
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Term
| Elements of Battery(When Liable) |
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Definition
a. Liable for battery when (1) D acts intending to cause a harmful or offensive contact, and (2) when a harmful contact results. The least touching of another in anger is battery.
1. Snyder v. Turk – Dr pulls nurse’s face towards operation opening in anger.
b. D also liable not relatively trivial contacts which are merely offensive and insulting (protecting personal integrity). Contact which is offensive to a reasonable sense of personal dignity is offensive contact.
1. Cohen v. Smith – male nurse saw and touched P’s naked body, which was against her religious beliefs (P had informed D). Liable – offensive touching.
2. Leichtman v. WLW Jacor Communications, Inc. – intentional blowing of smoke in P’s face; D liable for battery. Offensive contact.
a. Employer only responsible for torts of employees if employee is acting under scope of employment. |
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Term
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Definition
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.
a. Substantial certainty of result can provide required intent
1. Garrat v. Dailey – Child pulls chair out from under p; P falls. Even though D doesn’t desire to harm P, if D knows there is a substantial certainty P will be harmed, then intent element of battery is satisfied.
b. Transferred intent – (1) tortfeasers intends tort on A, but commits tort on B; (2) tortfeasers intends a tort, but accomplishes another one.
1. Hall v. McBryde - D shot gun at passenger in car, D accidently shot P, pedestrian. No intent to shoot P, but use transferred intent.
2. Extended Liability – D commits intentional tort; liable for all damages resulting, not merely those intended or foreseeable
c. Child Liability – Most states children still liable for torts. Some states have an age cut-off where children will be held liable (b/c presumed small children incapable of the required intent). Standard of care (to find negligence) of minor is that ordinarily used by similar children of same age.
1. Parental Liability for the torts of their minor children – depends on statute (state will enact usually if willful/wanton tort, and damages capped at a low amt $); common law says parents not vicariously for torts of their children.
d. Insanity - R2T §895J - One who has deficient mental capacity is not immune from tort liability solely for that reason.
1. Polmatier v. Russ – D insane at time he murdered P. Still liable, b/c he intended to harm him, although the reasoning for it was irrational.
e. In a “dual intent” jurisdiction, the fact of insanity may be considered when determining whether an insane defendant appreciated the harmfulness/offensiveness of his/her conduct.
1. White v. Muniz ¬– Dementia patient (w/ loss of memory, impulse control & judgment) hits caregiver. No intent b/c D couldn’t appreciate the harm of her conduct, due to her dementia. |
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Term
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Definition
| An actor is subject to liability to another for assault if (a) he acts intending to cause a harmful or offensive contact, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension. |
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Term
| Elements for Prima Facie Case for Assault |
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Definition
a. Act by Defendant
b. Intent
c. Apprehension of immediate touching
d. Causation
e. Lack of Consent |
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Term
No contact required for assault v.
Some apprehension of the imminent contact is required for assault |
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Definition
a. Cullison v. Medley- Ds intended to frighten P, by surrounding him and threatening him with bodily harm with a revolver. P suffers chest pains & psychological trauma.
C. Some apprehension of the imminent contact is required for assault
a. Koffman v. Garnett – D (football coach) tackled P, while explaining a technique, and accidently broke P’s bone. No assault b/c no time for P to apprehend the imminent danger. Once coach tackled him, the battery was already in progress.
1. R2T §29(1) The apprehension created must be one of imminent contact, as distinguished from any contact in the future. “Imminent” does not mean immediate, in the sense of instantaneous contact . . . . It means rather that there will be no significant delay. |
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Term
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Definition
Trespass to Land – R2T §158: A trespasser is liable, even if no harm is caused, if he intentionally (a) enters another’s land or causes a thing or person to, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.
B. Trespass to Chattels – R2T §217: (Chattels are personal property). Trespass to chattels is the intentional dispossession, use or intermeddling of another’s chattel. With trespass to chattels, you must show actual damages.
C. Conversion of Chattels – R2T §222A: Conversion is when property is interfered with the owner’s control of it in a “complete or very substantial” way, and owner can get the value (but not the thing back). Factors in determining the extent of interference and if actor must pay back owner: (a) extent & duration of actor’s control over chattel, (b) actor’s intent to take away owner’s control, (c) actor’s good faith, (d) harm done to chattel, (e) inconvenience & expense caused to the owner. |
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Term
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Definition
A. Protecting Against the Apparent Misconduct of the Plaintiff
a. Self-Defense – R2T §70: There must be an immediate threat of harm to trigger the self-defense privilege. You must have a reasonable belief that force is necessary, but you can be mistaken. You can use reasonable force in amount and duration based on the circumstances to protect your person.
1. The force you use must be proportional in some sense.
2. Words are insufficient provocation to trigger the privilege of self-defense because language doesn’t constitute assault.
3. You can only use deadly force to counter deadly force.
4. In own home, no obligation to retreat from deadly force. (but outside home, may be obligation to retreat from deadly force, but depends).
5. Non-deadly force: no obligation to retreat; ok to respond w/non-deadly force
b. Defense of Third Persons – R2T §83: if actor is privileged for the purpose of stopping a trespass or conversion, and in doing do, unintentionally harms a 3rd person, actor not liable unless he knew or should have known of the risk created.
c. Temporary Detention for Investigation. R2T §120A – An actor is privileged to detain someone whom he reasonably believes has taken his chattel or not paid for services, for time necessary for reasonable investigation
1. Merchant privilege to detain for investigation
a. Great Atlantic & Pacific Tea Co. v. Paul – P suspected of stealing. No reasonable belief for stealing (P wasn’t trying to leave store yet, D didn’t actually see him take it, etc), so therefore no reasonable reason for the detention.
d. Defense and Repossession of Property
1. R2T§ 77 - reasonable force and actor reasonably believes that the intrusion can be prevented or terminated only by the force used ok if intrusion is not privileged. The force involved is limited in particular by the requirement that the trespasser first be asked to depart, except when the intruder is acting in such a way that a reasonable person would find that such a request is useless or can’t be made in time.
2. R2T § 79 - You do not have the privilege to use force that may cause death or serious injury against trespassers unless the trespass itself threatens death or serious injury. The value of human life outweighs possession of land.
3. R2T §85 – A possessor of land cannot do indirectly by using a mechanical device, that which he could not do immediately and in person.
a. Katko v. Briney – mechanical gun set up to shoot trespassers. D were not present, no threat of bodily harm, only possession of property. No privilege to use this type of force.
b. Brown v. Martinez – P trespassed on D’s land; D shot P. Not shown that D feared for his safety. No privilege to use gun.
4. Recovery of property – only if in “hot pursuit,” & only use reasonable force (never justified to use deadly force for property).
e. Discipline – Parents are privileged to use reasonable force to discipline their child. |
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Term
| Protecting Against the Apparent Misconduct of the Plaintiff |
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Definition
B. Consent R2T §892: Willingness for conduct to occur. May be manifested by action or inaction and need not be communicated to the actor. If words or conduct are reasonably understood as intending consent, they are effective as consent.
a. Effect Of Consent R2T§ 892A – (1) If consented to, no tort claim. (2) Consent must be given by one who has capacity to consent, or by person empowered to consent for him, and consent must be to the actual conduct. |
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Term
| Negligence – The Prima Facie Case |
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Definition
I. Elements of a negligence cause of action.
• (1) DUTY - The defendant owed plaintiff a legal duty;
• (2) BREACH - The defendant, by behaving negligently, breached that duty;
• (3) HARM - The plaintiff suffered actual damage;
• (4) CAUSE IN FACT - The defendant’s negligence was an actual cause of this damage;
• (5) PROXIMATE CAUE - The defendant’s negligence was a “proximate cause” of the damage. |
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Term
I. Duty
A. Reasonable Person Standard - |
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Definition
Elements of Negligence to create the Prima Facie Case
I. Duty
A. Reasonable Person Standard - The standard of care requires conduct of a reasonable and prudent person under the same or similar circumstances.
a. External circumstances
1. There is no “exceptional” standard of care in dangerous situations (the reasonable person standard applies), but the degree of care required does increase with danger and risk
a. Stewart v. Motts – gas explosion; higher degree of care necessary when dealing with dangerous substances like gasoline. |
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Term
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Definition
C. Negligence per Se – Specification of Particular standards or duties
a. Attempts by judges to define the duty owed (what a reasonable person would do when specific facts present) as a matter of law / The difficulties when judge’s announce a set standard of care |
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Term
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Definition
| b. Negligence per se – defining duty by “statute”: Is the plaintiff in the class of persons the statute is designed to protect, and is the injury in a class that the statute is designed to protect? If you cannot establish negligence per se, you can use this as evidence to establish negligence (but easier to establish negligence per se). |
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Term
| c. Excused violation of “statute” (excuses to negligence per se) |
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Definition
c. Excused violation of “statute” (excuses to negligence per se)
a. Actor’s incapacity (medical emergency, mental incapacity, child)
b. Neither knows nor should know of compliance (night driver’s taillight goes out w/o his knowledge)
c. Unable to after reasonable diligence to comply
d. Confronted by emergency not due to own conduct (brake failure)
e. Compliance would have caused a greater risk to actor or others
2. Impson v. Structural Metals Inc. - D’s truck tries to pass P w/in 100 ft of intersection, and hits P. Statute prohibits this. D says he is excused, denied. |
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Term
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Definition
A. Risk/Utility Formula: Assessing Reasonable Care by assessing risks and costs
a. Breach: Assessing reasonable care
...(a) Intentional tort – have to be certain ppl will be killed/injured, but this is a statistic, not certainty. Not intentional tort. Also, intent is to build cheaper, not to hurt anyone.
(b) If concrete used, person injured – not liable for intentional tort b/c no safer way to build.
(c) Wood safer than concrete, no liability to use concrete b/c using wood holds up progress (ppl will not build due to liability).
(d) If specific work/method negligent, then liable. |
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Term
| 2. Criteria for assessing what constitutes “unreasonable risk” |
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Definition
| a. R3T §3 – Negligent if actor doesn’t exercise reasonable care under circumstance. Factors: foreseeability of harm occurring, severity of harm, burden of precaution. |
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Term
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Definition
| Impose liability where: The burden of precaution is less than the probability of harm x the gravity of harm. If action would be very burdensome, not reasonably expected to take that precaution (social utility). |
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Term
| b. Learned “Hand” formula...Impose liability where: |
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Definition
2. Benefits of hand formula: (1) social efficiency, (2) fairness
3. Only works when property is involved (can’t determine value of life)
4. Alternatives: (1) when danger is foreseeable, must act to deter, (2) community expectation approach |
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Term
| c. Apportioning responsibility |
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Definition
1. Comparative fault – each faulty party bears burden of losses. Each party liable only for % responsible.
2. Apportionment among defendants – multiple tortfeasers; they split damages based on % of fault.
3. Joint and several liability – Multiple tortfeasers; P can enforce against either. P can get judgment on either, but not for more than full amt of damages.
4. Contribution – if only 1 D pays full amt, not fair. So co-D would pay D his portion, called contribution.
5. Insolvent or immune tortfeasers – 1 D is immune to tort liability. Co-D incurs all expense of damages, and cannot get contribution.
6. Several liability and comparative fault – Determine % fault of each D, and D only liable for his share. P can only pursue each D for the % fault. |
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Term
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Definition
Inference & Custom – P must prove negligence more probable than not
a. Proving Conduct
1. Santiago v. First Student, Inc. – P unable to show evidence that D was negligent. Cannot pursue claim.
2. Upchurch v. Rotenberry – car crash; too much conflicting evidence. Jury decides the truth, cannot overrule; can reasonable go either way. |
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Term
Proving Negligence: Inference & Custom:
b. Evaluating Conduct |
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Definition
1. Thoma v Cracker Barrel Old Country Store Inc. - P slipped on liquid in store. P could not show through evidence than D was probably negligent by conduct. Mere presence of liquid insufficient. To recover, P must show D created or had knowledge of the dangerous condition.
2. Wal-mart Stores, Inc. v Wright – Wal-mart negligent based on its own manual (higher standard), but not by reasonable person standard. Court says only reasonable care must be taken (doesn’t want to discourage businesses from employing a higher degree of care b/c they would be liable to stick to it).
3. The T.J. Hooper – Court says although radios weren’t the industry custom, it would have prevented the accident, and so should have been used b/c of its availability and not burdensome for D to use (use common sense). Courts want advanced technology to be used (progress). |
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Term
| Res Ipsa Loquitur - R2T § 328D |
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Definition
| “It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when (a) the event is of a kind which ordinarily does not occur in the absence of negligence; (b) other responsible causes, including the conduct of the plaintiff or third persons, are sufficiently eliminated by the evidence; and (c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.” |
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Term
| c. When does Res Ipsa apply? - Probably negligence and probably the defendant |
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Definition
1. Probably defendant: Harm-causing event must be tied to the defendant
a. Giles v. City of New Haven - P, elevator attendant keeps pressing buttons; goes for a wild ride. Tries res ipsa, but cannot prove it was probably D (who maintains elevator). Could have been P’s negligence.
2. Probably negligence: Event must be one that generally does not occur absent negligence
a. Warren v Jeffries - Car runs over child (who dies); no res ipsa b/c cannot be determined if negligence caused accident, or if there was something wrong w/ car (not examined after accident).
b. Widmyer v Southeast Skyways, Inc. – Plane crash; apply res ipsa b/c of technology it is unlikely plane crash to happen w/o negligence. |
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Term
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Definition
Compensable Injury
A. Preston v. Cestaro – Car accident, D hit P. P claims back injuries. Found that back injuries caused by previous incident. The negligence must have actually caused harm in order to recover damages. |
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Term
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Definition
A. The but-for test of causation (harm wouldn’t have happened but for D’s negligence)
a. R3T § 28 - Tortious conduct must be a factual cause of physical harm for liability to be imposed. Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. |
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Term
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Definition
B. Concurrent & sufficient causes, indivisible injury
a. Landers v East Texas Salt Water Disposal Co. – 2 D’s responsible, but cannot tell % fault of each (so cannot apply but-for test). So, all of the wrongdoers will be held jointly and severally liable for entire damages. |
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Term
IV. Cause in Fact (c)
C. Substantial factor test - R3T §27: |
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Definition
If multiple acts exist, each of which alone would have been a factual cause of the physical harm at the same time, each act is regarded as a factual cause of the harm.
a. Anderson v Minneapolis, St. Paul & Sault Ste. Marie Railway – Fire started by D, but combines with another fire of unknown origin. D liable as if he alone at fault. |
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Term
| IV. Cause in Fact (D.) Proof: What Was Caused? |
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Definition
a. Present value approach to apportionment: The damages for negligence are decreased in contributory negligence when negligence of D is great and other causals are present.
1. Dillon v. Twin State Gas & Electric – Boy trespasses on D’s bridge, but D knows this happens a lot. Boy loses balance, grabs wire and is electrocuted, dies. If wire were insulated, boy would have prob survived. D’s should have known the risk, and insulated it. |
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Term
IV. Cause in Fact
b. Alternative causation |
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Definition
1. Summers v Tice – 3 ppl Hunting quail. 2 Ds shoot and P gets hit. We don’t know who actually shot P, but since they were both negligent, both liable. D’s burden to offer proof of apportionment (b/c D has more knowledge).
a. Doe v. Baxter Healthcare Corp. - Unsuccessful attempt to rely upon Summers v. Tice alternative liability. Blood transfusion from multiple sources; P gets HIV. Must show that other sources were probably not responsible in order to hold D liable. |
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Term
| Joint and Several Liability-- Causation |
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Definition
| When two or more persons by their acts are possibly the sole cause of a harm, or when two or more acts of the same person are possibly the sole cause, and the plaintiff has introduced evidence that the one of the two persons, or the one of the same person's two acts, is culpable, then the defendant has the burden of proving that the other person, or his other act, was the sole cause of the harm. |
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Term
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Definition
| Allows someone else resp. for their injury who isnt nec. the "but for cause" they are just giving assistance. |
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Term
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Definition
| The real reason for the rule that each joint tortfeasor is responsible for the whole damage is the practical unfairness of denying the injured person redress simply because he cannot prove how much damage each did, when it is certain that between them they did all; let them be the ones to apportion it among themselves. Since, then, the difficulty of proof is the reason, the rule should apply whenever the harm has plural causes, and not merely when they acted in conscious concert. |
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Term
| Procedure > Multiple Defendants > Joint & Several Liability |
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Definition
| Ordinarily defendants are in a far better position to offer evidence to determine which one caused the injury. |
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Term
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Definition
| A party moving for summary judgment has the burden of proving there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. In deciding whether there is a disputed material fact issue precluding summary judgment, the court will accept the evidence that favors the nonmovant as true and indulge all reasonable inferences and resolve all doubts in favor of the nonmovant. When the defendant produces competent evidence to negate a necessary element of the plaintiff's cause of action, to preclude summary judgment, the plaintiff must introduce evidence sufficient to raise a fact issue with respect to the element the defendant seeks to negate. The court must affirm the judgment if any theory advanced by a defendant in his motion is meritorious. |
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Term
| Negligence > Duty > Affirmative Duty to Act > Special Relationships > General Overview |
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Definition
| The five factors that can be relevant to whether a defendant substantially assisted the wrongdoer include: (1) the nature of the wrongful act; (2) the kind and amount of the assistance; (3) the relation of the defendant and the actor; (4) the presence or absence of the defendant at the occurrence of the wrongful act; and (5) the defendant's state of mind. |
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Term
| Duty > Affirmative Duty to Act > Special Relationships > General Overview |
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Definition
| The mere presence of the particular defendant at the commission of the wrong, or his failure to object to it, is not enough to charge him with responsibility. |
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Term
§ 876 Persons Acting in Concert
Multiple Defendants > Concerted Action > General Overview |
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Definition
For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he
(a) does a tortious act in concert with the other or pursuant to a common design with him, or
[*311] (b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance [**7] or encouragement to the other so to conduct himself, or
(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person. |
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Term
| Nature of the Wrongful Act (Neg.>Duty> Breach |
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Definition
| The purpose of the concert-of-action theory is to deter antisocial or dangerous behavior that is likely to cause serious injury or death to a person or certain harm to a large number of people. Juhl, 936 S.W.2d at 644-45. It is commonly recognized that driving while intoxicated is an antisocial and dangerous behavior, likely to cause serious injury or death to a person. |
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Term
| Relationships of Parties in Multi Def. |
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Definition
3. Relation of the Parties
There is no special relationship between Allen and Faggard, such as an employee/employer relationship, that would place one party in a position of control over the other. Allen and Faggard were just acquaintances who decided to "hang out" one afternoon. |
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Term
| Determining Liability Re; The concert-of-action theory. |
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Definition
| All those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt the wrongdoer's acts done for their benefit, are equally liable. |
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