TORTS I.

Introduction Torts are civil actions other than contracts where a court awards damages attempting to put the injured party back to his position before the tort occurred. Before 1300- bsolute liability-no responsibility by defendant 1!"0-#ourt separates intentional torts from those arising from negligence 1$%%-&angan v. 'alicopter-the arrival (again) of strict liability for certain issues II. Intentional Torts *nder +T, respondeat superior is not an issue (e-cept for bouncers) and the defendant is liable for all resulting damages. Transferred intent is where there is intent to injure one party, but another is injured. the intent is transferred and damages are recoverable. Garrat v Dailey - 1. There must be purpose to cause the contact, /0 1. 2ave knowledge with substantial certainty that contact will occur. Vosburg v Putney-3Thin-4kull5 0ule-the defendant must take the plaintiff in his condition. intent is not necessary for injury when there is intentional contact. Wallace v Rosen-+n a crowded world, a person must e-pect a certain amount of contact. There is certain point when risk grows to substantial certainty that negligence turns into +T. A. Battery 1. intent-act with purpose or knowledge with substantial certainty that contact will occur 1. harmful or offensive contact 3. no consent. Mink v Univ. of Chicago- 6octors who give procedures, including giving medicine, without consent commit battery. Battery is easier to prove and win than negligence. This case is not informed consent because the patient did not know of the medicine. Fisher v Carrousel Motors- ny invasion of a direct e-tension of the body is sufficient for battery. +n this case, the employer was liable for the acts of the employee because of its approval of his actions. a!bertson v U"- The *4, like other employers, is not responsible for the intentional torts of its employees. +ntending to play a joke does not preclude finding of intentional tort. B. Assault 1. intend to cause or 784# that apprehension of harmful or offensive contact 96 1. there is apprehension of harmful or offensive contact 3. no consent :. there must be some gesture (and be near enough to act on it) ssault is in the legal system to preserve dignity and keep the peace. Conley v Doe- 6efendant must engage in contact that puts plaintiff in reasonable apprehension. there must be a gesture suggesting a present danger, mere words are not enough. #outon v $llstate- The apprehension of the plaintiff must be that of a reasonable person in those circumstances.

C. False Imprisonment 1. ;ust be conscious of confinement (or harmed, but this is not supported by any cases) 1. There must be intent to confine 3. There must be actual confinement :. 6efendant<s acts must be the cause of confinement Whittaker v "an%for%- The person must be able to leave the confinement, just saying she can leave does not mean she actually can. =our walls are not necessary, and the means to escape must be reasonable. Du&ler v "eubert- +f someone takes your wallet>purse you are falsely imprisoned because you need it to leave. +mpeding the escape is false imprisonment. D. Intentional Infliction of Emotional Distress 1. #onduct must be intentional or reckless 1. #onduct must be e-treme and outrageous 3. ;ust be a causal connection between wrongful conduct and emotional distress :. ?motional distress must be severe This is not the pain and suffering under other torts. This is basically a gap filler to get the attorney fees. 6efendant may not take advantage of special circumstances (@ot of Aold). 'arris v (ones- There must be causal connection between distress and conduct and be able to prove this link to a court. )aylor v Vallelunga-The court adds to the reBuirements a foreseeability issue to limit parties who can recover under ++?6. 'ustler v (erry Fal*ell- @ublic figures cannot recover without showing actual malice from either reckless disregard of the truth or knowledge of the falsity. E. Trespass to Land 1. +ntentional entering on land without permission 1. 0emaining on the land 3. @utting something on the land Dougherty v "te&&- Trespass action will lie even for nominal damages. #ondemnation is when the government or other entity takes the land from someone for the public good giving them compensation. +nverse condemnation happens when the acts of a government or entity make the land of another useless. #orlan% v "an%ers- 9uisance is the interference with the use and enjoyment of the land, while trespass is the interference with e-clusive possession. Classic trespass-intentional entry on another<s land, entry must be matter, and inferred damages. odern trespass- 9/T T0?4@ 44C invasion of a substance affecting an interest, intentional action, foresee the act could invade, substantial damage to property. &ast 1 come from nuisance. Public "ervice Co v Van Wyk- n intangible intrusion on land may be trespass, but there has to be proof of physical injury. &aw is changing to accomplish justice. F. Trespass to C!attels and Con"ersion Trespass to chattels is the intentional interference with the movable property where a showing of actual damages is reBuired. The key difference for conversion is the damages are the full value of the chattel. #ourts consider the

a) e-tent and duration of dominion or control b) intent to assert right inconsistent with owner<s c) actor<s good faith d) e-tent and duration of resulting interference e) harm done to chattel f) inconvenience and e-pense caused to the other 'uff!an v Wa%e- Trespass to chattels cannot occur on public property or where the public is invited. =reedom of speech is separable from the trespass issue. Dickens v Debolt- @olice officer has immunity unless acts are outside of authority. ?ating the fish is deemed to be conversion because of the e-tent of control. Pearson v Do%%- =or documents to be converted they must either be damaged or destroyed, reduced in value, or intellectual property (literary work, commercial idea, or scientific invention). III. #ri"ile$es and Defenses @rivileges justify or e-empt the intentional act from liability. They do not relate to the elements. &oosely referred to as a defense because it is basis for winning entire suit, and it is limited to intentional torts. 6efenses attack one of the elements of the tort. A. #ri"ile$e to Battery 1. #onsent- There does not have to be evil intent in civil suits for damages. Mohr v Willia!s- +ndividuals have the right to control their own body, and only in emergency situation where there is immediate threat to life and limb can a physician operate without consent. $shcraft v +ing- +f consent is given with condition, any procedures in e-cess of the condition result in a battery. #ourt is changing battery against doctors because harm has to be shown for recovery. Marchetti v +alish- +n order to recover in sports, you have to show intent or recklessness on behalf of the other party and that the contact was outside the rules and spectrum of normal play. 'ackbart v Cincinnati #engals- #ourts decide to get involved because action is outside the realm of normal play. fter this the leagues take it upon themselves to govern their players conduct more strictly to prevent use of the courts. )eolis v Moscatelli- Dou cannot consent to an illegal activity (fight in this case). 1. 4elf-defense- +n an immediate response, an individual can use parallel reasonable force to defend himself. 3. #orporal punishment- +n some states, a teacher can take the place of the parent. +t is determined on a case by case basis depending on the conduct and the age and siEe of child. )ho!as v #e%for%- 46 does not apply because it was not reasonable and because of the cooling down time. #orporal punishment was not appropriate because the punishment was e-treme.

B. Defense to False Imprisonment ttacking #onsent,oguchi v ,aka!ura- #onsent can be limited in =+, but once =+ is proven, the defendant is liable for all resulting injuries. Peterson v "orlein- cult case where the court changes the elements of =+ to prevent the parents from being liable while still e-tending liability to the friends. 9e-t time, use judicial process instead of friends. #onstructive waiver allowed her to consent to =+ for first 3 days because of incapacity. #onko*ski v $rlan-s De&t. "tore- person may be restrained by another if there is a reasonable belief that theft or another crime has been committed and the actions are reasonable once the person is detained. C. #ri"ile$e to Trespass to Land and C!attels +atko v #riney- 0easonable force can be used to protect property, but only after you ask them to cease and desist. ctions cannot be done indirectly what you can do directly. 6eadly force cannot be used until it is necessary for defense of life or limb. 6. %ecessity 1. @rivate Ploof v Putna!- #ourt holds that the threat to life and property precludes liability to trespass by necessity. &ife over property. Vincent v ake .rie )ransit- 8hen preserving life or property a party is still liable for damages. 1. @ublic necessity can prevent recovery in times of war or other mitigating circumstances. "urroco v Geary- There is no recovery of damages for the protection of the public. The necessity must be apparent, and there must be reasonable apprehension of the necessity. Wegner v Mil*aukee- The e-ception to the rule from above where the court wanted to allow recovery because the court uses the doctrine of public use. +n general, a taking is a planned activity for which the #onstitution reBuires compensation. ctions out of public necessity are spontaneous, and recovery is not allowed. I&. Duty ' Elements to %e$li$ence Suit( 1. duty-must show defendant owes duty to plaintiff (policy matter) 1. breach-must show there was a breach of duty 3. cause-in-fact-must show that defendant<s conduct was #+= of plaintiff<s injury (science matter) :. pro-imate cause-even if the first 3 are shown, there may be a line drawn to sever liability (policy matter) ". damages-must be actual (will discuss emotional harm) 'eaven v Pen%er- +f reasonable person knows that conduct will cause injury, he has duty to e-ercise ordinary care to avoid it. /ania v #igan- There is no general duty to rescue a person in danger. Far*ell v +eaton- /nce you begin performance of assistance, then a duty arises to take reasonable steps to complete it. +f a special relationship e-ists between the parties, then there is a

duty to rescue a person in danger, i.e.-employer-employee, carrier-passenger, innkeeper-guest, and warden-prisoner. $yres v 'icks-In"itor rule states there is legal obligation to assist when the injury resulted from the use of instrumentality under your control. +nvitation means either a public invitation (library) or economic benefit (department store). "ol%ano v 0-Daniels- business owner owes a duty to a third party to help when there is little cost to him. The court weighs the duty factors of foreseeability of harm, degree of certainty of injury, the closeness of connection between conduct and injury, moral blame, policy of preventing future harm, and the burden on defendant. )horne v Dees- #ourt held that a duty cannot rest on a bare promise. Marsalis v a"alle- #ourt found that defendant had a duty when there is a promise, reliance, and physical injury. This case is an e-ception from civil law. B. #ri"ity( Suits )y T!ird #arty Moch v Rennsalaer- The third party cannot sue the water company because it owed the duty to the city. #ourt did not want to allow suits against water companies. 'andall wants a better rule where recovery depends on who can best insure against the damages. ?.g. *kiah did not allow recovery for the city against the water company, and 2ayes allowed recovery for typhoid fever. "trauss v #elle Realty- 9either foreseeability nor privity are sufficient for a duty to arise, the court wants to limit the number of suits by not e-tending the duty of the power company. C. #rofessionals ucas v 'a!!- ttorneys generally have duty to clients to the e-tent of reasonable care in complicated manners. @laintiff argued 1rving where notary acted as attorney and recovery was allowed. 'andall does not like holding in this case. 6. Duty to Control Ot!ers )arasoff v Cal Regents- The court believes that a person has the duty to control others by warning a third party when a specific threat is mentioned. The policy of public protection outweighs the doctor-patient relationship. Vince v Wilson- The court e-tends negligent entrustment to the supplier of the money, the car salesman, and the dealership if it is proven at trial that they knew of the minor<s incompetence. E. Emotional *arm 1. +mpact rule-negligent contact, recovery allowed for distress 1. Fone of 6anger-plaintiff must have been in position for defendant<s actions to injure him 3. @hysical injury-resulting injury from emotional harm (heart-attack) :. 6irect bystander-'andall does not buy it, court occasionally falls back on this ". @arasitic tort-car crash, you can recover for emotional harm from other tort G. Huill-uniBue facts, and injury stands on its own because of facts 2uill v )W$- There is no chance of fraud because the doctor is trustworthy and can describe symptoms. The uniBue facts allow recovery. Daley v a Croi3- 6ue to special facts, recovery is allowed for insignificant injury. Potter v Firestone- 9o physical injury only fear of future cancer, court allows recovery for medical monitoring of future threat. /ne of few cases where courts allow recovery, test

1)defendant breached duty to plaintiff by e-posing them to cancer, and 1)the fear stems from evidence more likely than not increasing their risk of cancer supported by medical research. )hing v a Chusa- #ourt reBuires a close relationship between the two (mother-child), to be present and aware at the scene, and to have abnormal distress from accident. Gerrar%- There is general duty not to negligently inflict emotional harm on others. #oyles v +err- Te-as court limited Aerrard to handling of dead bodies. #ourt says that you cannot recover for pure negligent infliction of emotional distress. it must arise from another tort. F. In+ury to ,n)orn C!ild 8hen mother is pregnant at time of injury, some courts hold that the child must be born alive, others say that the child must be viable (capable of survival at time of injury outside the womb), others reBuire both. Renslo* v Mennonite 'os&ital- #ourt allows recovery because of foreseeability and there could have been steps to prevent it. =irst time recovery is allowed before conception. Viccaro v Milunsky- #ommon rule is no recovery, but court allows recovery for breach of counseling duty by doctor because of the genetic defect. @arents are awarded damages for e-traordinary care to his majority and possibly after this. This case is ?I#?@T+/9. #urke v Rivo- #ourt allowed recovery when the family has economic reasons for steriliEation and the doctor breached his guarantee. &. %e$li$ence -Breac! of Duty. =our historical bases before 1!"0 for civil liability 1. bsolute liability 1. +mmunity-argued by 0abun. family, sovereign, church 3. 6on<t know because there is not enough knowledge. :. @rosser says look at forms of action, trespass or trespass on case (e-ceptions). Trespass has matured into intentional torts. trespass on case has become negligence. A. Standard of Care #lyth v #ir!ingha! Water*orks- The court ruled that the defendant acted reasonably to prevent reasonably foreseeable harm, and further prevention was cost prohibitive. U" v Carroll )o*ing- 2and comes up with formula to determine if the Burden on the defendant (B) J the probability of occurrence (@) times the resulting injury (&). $%a!s v #ullock- #ourt weighs the benefits trolley lines have to society. There is nothing the trolley company could do besides stop operating to prevent this injury. Gulf Refining v Willia!s- BungholeC The court uses formula and says that cost to defendant is low compared to the resulting injury. Rivera v ,/C )ransit- ?mergency 6octrine- person in une-pected situations, not of his own making, is not held to same accuracy of judgment because of the split second decision as one who has full opportunity to weigh alternatives, even though it may later appear that the actor made the wrong decision. Wi%!yer v ". "ky*ays- #ommon carrier owes the utmost standard of care to its passengers. 6egrees of 9egligenceC 4light negligence is the failure to e-ercise minimal care, borderline to strict liability. /rdinary negligence is the failure to e-ercise ordinary care.

Aross negligence is the absence of care or omission of act with indifference to conseBuences, borderline to intent. #ro*n v Merlo- from #alifornia, Auest passenger statutes (more than ordinary negligence for recovery) violate the eBual protection clause. These statutes were introduced by the insurance companies, and most states have repealed them. Vaughan v Menlove- The standard of care for negligence is the reasonably prudent person (an objective view), not the best judgment of each person (a subjective view). (2ay rick case) Fre%ericks v Castora- #ourt applies the reasonable standard of care, not an e-pert standard of care, because of the ease of application for the jury. 9o e-pert testimony is reBuired because juries can understand driving. Delair v Mc$%oo- person has duty to check for reasonably visible wear on car to protect others based on ease of prevention. Daubert 4#en%ectin5 an% +u!ho 4outsi%e !e%ical arena5- The federal courts have made the judge the gatekeeper in determining the validity of e-pert testimony. Roberts v $- Blind person is held to the reasonable standard of a blind person and no higher. Robinson v in%say- child is normally held to the standard of a reasonable child (objective) of the same age (subjective). 8hen children are engaged in a deadly activity or operating deadly machinery, they are held to the standard of a reasonable adult. @rofessionals #oyce v #ro*n- To prove negligence, the e-pert<s testimony must establish a standard of care for the profession and show that the doctor did not meet this standard. (ones v 0-/oung- The e-pert must be a licensed member of the school of medicine about which he will testify, and he must show that he is familiar with the procedures, methods, and treatments in the defendant physician<s community or a similar one. 'eath v "*ift Wings- pilot is held to the care of a reasonable pilot with average e-perience. Furey v )( 'os&ital- 8hen there are two schools of thought, as long as the e-pert testimony is acceptable in one medical field, the e-pert is fine. Pauscher v 1o*a Me%ical- @atient rule-patient has right to know all material risks of operation from his perspective. professional rule-based on doctor<s perspective. =or patient rule you must establish that the material risk is unknown to the patient, a failure to discuss the risk, cause in fact, and injury. There still must be an e-pert testifying in informed consent cases. )rese!er v #arke- 6alkon shield doctor must seek out patient to warn of risk. Moore v Cal Univ.- +n order to satisfy his fiduciary duty and obtain a patient<s informed consent for a medical procedure, a doctor must disclose personal interests, whether for research or economic gain, unrelated to the patient<s health that may affect his medical judgment. #ustom ).(. 'oo&er- +n most cases the standard of the industry should be used, but there are situations where the court should apply its standard because of policy issues or low costs of implication. B. Relations!ip )et/een 0ud$e and 0ury #alti!ore 6 0hio RR v Goo%!an-Kudge sets standard of care for the driver to get out and look for oncoming train. #ontributory negligence is a complete defense.

Pokora v Wabash Rail*ay-The jury should set the standard of care, not the judge. Kudge should determine whether reasonable people could disagree. 'elling v Carey- 8hen prevention costs are low and potential damages are high, a court will reBuire doctors to perform procedures. This standard looks like strict liability. C. &iolation of Statute-%e$li$ence #er Se =our 4chools of Thought on 'iolation of 4tatutes .vi%ence of negligence-violation of statute can be used as evidence of negligence by the jury Rebuttable &resu!&tion-presumption of negligence, argued by e-cuse (defendant is child) ,egligence &er se-court must direct verdict as matter of law, still might permit defense as opposed to strict "trict liability-certain statutes are construed strictly (guns to children, @ure =oods ct) 'etherton v "ears-Dou must determine whether the statute applies to this protected class and the haEard, and once done there is no pro-imate cause issue. 9@4 )e%la v 'ell!an- plaintiff in violation of a statute is not contributorily negligent if their actions are reasonable under the circumstances or complying with the statute increases danger. ?9 Martin v 'er7og-Kury has no discretion on weight of statute when violated, similar to 4ears and protected class. 9@4 #ro*n v "hyne-The statute protected the public by reBuiring people treating others medically to be trained. =ailure to have a license is not negligence per se. cause in fact must be shown. ?9 Rushink v Gersthei!er-The law says that the actions of a thief cut off the liability of the owner, unless foreseeable. The plaintiff must be in the protected class. 0@ (criminal superseding act) D. #ro"in$ %e$li$ence Case )efore t!e 0ud$e and 0ury 6irect-person saw the Buestion at issue 0eal-presenting the gun that was used in the crime, concrete evidence #ircumstantial-evidence of point B, which is not at issue, that the jury can use to infer point . ,egri v "to& 6 "ho&8 1nc- Before the defendant can be negligent, he must have actual or constructive knowledge of the condition. @rima facie case is where evidence is enough to send the case to the jury by defeating a directed verdict motion. Chiara v Fry-s Foo% "tores-The store owner knew of the condition caused by the leaky product because of the mode of operation he accepted. 6efendant must show evidence of care to escape liability. Pietrone v 'on%a-The court said that the risk was obvious to 2onda because of the design of other motorcycles. The plaintiff was not reBuired to present an e-pert because the jury can infer that there are numerous solutions to the problems. .scola v Coca-Cola-=or 0+&, it must be shown that 1) defendant had e-clusive control 1) event does not ordinarily happen in the absence of negligence (courts have made this pivotal) 3) plaintiff was not contributorily negligent (reBuired in all negligence cases) Co3 v ,W $irlines-+f the details of an event are known, 0+& does not apply. without evidence is 0+& because it does not occur without negligence. plane crash

/barra v "&angar%- ll persons who have control over an anesthetiEed plaintiff are liable for damages to healthy parts of the body. This case has not been widely applied. #rannon v Woo%- The proper Buestion according to the court is whether the injury ordinarily occurs as the result of negligence. ?-ceptions to 0+& are bad result (some people die from anesthesia) and calculated risk (Brannon). $n%erson v "o!berg-/ne of the defendants was negligent to the unconscious plaintiff, and the court tells the jury to determine which one. (Broken instrument case) Connolly v ,iccollet 'otel- The court said the hotel had the duty to protect people who were passing by on the sidewalk because the hotel was profiting from the group<s stay and owed a higher standard of care to prevent injuries caused by its patrons. =or 0+& the court can instruct the jury on 1) +nference of negligence 1) @resumption of negligence 3) @resumption of negligence plus shift in burden of proof &I. Cause in Fact A. Introduction #ause in fact is a matter of science for the court and there are two testsC But for-whether the injury would have happened but for the defendant<s conduct. 4ubstantial factor-whether the defendant<s conduct was a substantial factor in the injury. ,/ Central RR v Gri!sta%-There are several causes in fact for injury, and defendant is only liable if he is a substantial factor or the but for cause of injury. B. Concurrent Causes $n%erson v )*in Cities Rail*ay-+f the defendant<s acts were a material or substantial factor of the injury then the court will e-tend liability. C. Failure to identify Specific Actor "u!!ers v )ice- The plaintiff could not prove which defendant caused the injury, but the court allowed recovery because both were negligent and holding otherwise would e-onerate them from liability. @ublic policy is a major concern in difficult cases. =ull recovery is obtained. 'y!o*it7 v .li illy-The court allows recovery under a national market share theory. @artial recovery is allowed based on the defendants in court. Falcon v Me!orial 'os&ital- The plaintiff need not show to a certainty that she would have survived because the cause in fact standard is 3more probably than not.5 *nder the lost chance theory, the recovery is limited by the percentage of increased survival. Richar%son v Richar%son-Merrell-The jury decides the cause in fact, but the judge must first decide if there is sufficient evidence to take the Buestion to the jury. This case led to 6aubert and the judge being the gatekeeper for the e-perts.