Intentional Torts

Battery
~ Prima Facie
o Intent to touch/contact
(1) Actual intent; or knowledge of substantial certainty of
contact
(2) Intent to contact or cause to hit something/someone
else
(3) Transferring intent
o Intent to harm or offend
(1) Actual intent to harm/offend; or knowledge that it will
harm/offend
(2) Knowledge
If conduct typically harms/offends
knew would be harmed
o Single v. Dual Intent Jurisdictions
Single (minority rule but gaining speed)
Intent to Contact resulting harm
Dual Intent (modern rule but losing ground)
Intent to Contact + Harm resulting harm
~ Restatement 19
o A bodily contact is offensive if it offends a reasonable sense of
personal dignity
~ Recklessness
o Unintentional creation of harm in the face of risk
~ THINGS TO REMEMBER
o Eggshell theory take the plaintiff as you found them
o PARENTS
Not normally liable for children, unless parents were
negligent
o Offensive offending a reasonable sense of dignity
Assault
~ Prima Facie
o Intent
(1) Actual Intent to cause imminent harmful or offensive
contact; or
(2) feels imminent apprehension of harmful or offensive
contact
o THINGS TO REMEMBER

Transferred Intent

False Imprisonment
~ Prima Facie
o (1) Intent to confine
o (2) Resulting confinement
must be (1) aware of confinement
(2) Harmed by confinement
~ Confinement
o Physical force, threats, assertion of legal authority or duress
o Reasonable person believes they cant win
Intentional Infliction of Emotional Distress
~ Restatement 3d Torts 45
o Extreme and outrageous conduct intentionally recklessly causes
severe emotional disturbance to another is subject to liability for
that emotional disturbance
~ Extreme and Outrageous Conduct
o Would make a reasonable person exclaim outrageous!
~ State of mind
o (1) Intent to cause severe emotional harm
o (2) Recklessness: indifference to risk of severe emotional harm
~ Causation
o Some courts require evidence that shows causal connection
~ THINGS TO REMEMBER
o Much higher bar than battery/assault
Rationale: concern for false claims, difficult to put $ value
on emotional distress, litigation can prolong distress
o Bad motive required
o Pleading affirmative defense
When is exercising legal right that might lead to s
emotional distress

Property Torts
~ Trespass to land
o Prima Facie
(1) Intent
Intentional entry of anothers land
Causing object to enter land
Unintentional entry refusal to leave
(2) Result

 Entry on anothers land

Object enters anothers land
~ Conversion of Chattels
o Prima Facie
(1) Intent
Intent to make others property your own
(2) Result
Interferes with anothers exclusive control of property
~ Trespass to chattels
o Prima Facie
(1) Intent
Intent to interfere with anothers use and enjoyment
of property
(2) Result
Interference harm
o THINGS TO REMEMBER
Meeting intent
(1) Actual intent
(2) Knowledge of substantial certainty
Result
Harm to materially valuable interest
deprived of use for long time
Defenses
Consent Elements
o (1) Consent can be non verbal
o (2) If reasonable person would believe consented
o (3) No consent if not voluntarily given to
Coercion/Duress
Power imbalance
o (4) Must be meaningful consent
Incapable of understanding nature of the
act/consequences/moral significance
misled or mistaken
o THINGS TO REMEMBER
Mental capacity
Children and those w/o mental capacity to
understand cannot consent

Self-defense Elements
o (1) Must perceive an imminent threat to bring about self-defense

o (2) Must be reasonable and not excessive

o Deadly Force
Must feel deathly force to give deathly force
o Defense of Others
Same rules as self-defense
Minority rule: If you defend the wrong person, you
can be held liable to the

Defense of Property
o (1) Must be reasonably necessary to defend
o (2) Force is the same as the given threat
o Restatement 85
No privilege to use deadly force unless the intrusion to the
property threatens death
Negligence

Duty of Care
Overall rule: Duty is owed to everyone
o Prudent person standard
Standard of care exercised by a reasonable person under
similar circumstances
o Physical disability/ability
Reasonable care of someone with the same disability in a
similar circumstance
o Mental disability
Restatement 2d 238
Mental disability is held to the same standard as
everyone else
Policy arguments
(1) Allocates losses to the one who caused the
occasioned losses
(2) Forces persons w/ disabilities to pay for damage
they do if they are to live in the world
Creasy v. Rusk
Alzheimers patient hurt the back and knee of nurse
o No liability for b/c was a nurse and
assumed risk of s behavior

o Superior Qualities
Restatement 2d 289
Actor w/ superior qualities must act as reasonable
person would with similar superior qualities
Hill v. Sparks
seasoned expert w/ earthmoving machine. Tells
to stand on ladder falls and dies should have
exercised higher care due to expertise
o Children
A child is to exercise the same care as a reasonably careful
child
EXCEPT
When performing adult activities held to same care of
reasonable adult performing similar activities
(Minority Rule)
Some states if a child is a certain age or younger
no liability
Robinson v. Lindsay
Snowmobile accident w/ injured 11yo and 13yo driver
o 13yo was held to adult standard
o 11yo slightly contributory negligence
o Specific Duty: DRIVING
Some states outline specific legal standards that
reasonable people are held to
Nonetheless, drivers STILL exercise ordinary care
Marshall v. Southern Railway
driving when trestle narrows road hits
oncoming with bright lights
o Keep reasonable careful lookout and keep
same control at night to be able to stop
w/in range of other car
Chaffin v. Brame
driving 40mph oncoming car didnt dim
headlights ran into unlit truck blocking the lane
o Denied Marshall rule
o cannot be held contributory liable for hitting
a truck that was parked in a travel lane

Common Law No-Duty Rule

o Generally, no duty to warn or protect from third party harms
Why?
Protecting individual autonomy

Difficulty drawing a line

Dont want to reduce incentive for to take due care
i.e. might act more careless if someone else has a
duty to warn another
o Exceptions
Good Samaritan Statutes (rare)
Extends protection to people who act in good faith
Special Relationships
Common Carrier/Passenger
Innkeeper/Guest
Landowner/Invitee
Hospital/Patient
School (supervisory role)/Student
Voluntary Undertaking
Individual has taken affirmative steps to help
o Individual autonomy is waived

Dangerous Instrumentalities
o Only one standard Reasonable care
Level of reasonable care may be higher depending on
situation
o Stewart v. Motts Rule
One standard ordinary care is the care a reasonably
prudent person would use under circumstances presented

Emergency Doctrine
o General: Restatement 3d 9
If an actor is confronted with an emergency situation, the
situation will be taken into account when determining if the
person acted reasonably
o Intoxication
Intoxicated people are held to the same standard of care as
an not intoxicated person

Establishing Breach
Determining Breach
o (1) Would a reasonable person have foreseen the risk of harm?
If no not negligent
o (2) Would a reasonable person have taken steps to avoid or
minimize risk?
If no not negligent
Foreseeability

o When harm was too likely to occur to justify risking it without

taking precaution
o When courts use unforeseeable although the actual harm
was foreseeable, a reasonable person would not have taken
action to prevent it
Risk too low
o Pipher v. Parsell
Case where passenger grabs drivers steering wheel once
and then twice
Was the second instance foreseeable?

Balancing Risks and Burdens

o Must balance risk involved with burden of addressing the risk
o Indiana Consolidated v. Matthew
Damage done to brothers garage when lawnmower caught
fire
Human life > property
o Stinnet v. Buchele
Roof painter feel off the roof
s responsibility to take precaution because he was
experienced
o (1) had greater knowledge
o (2) benefitted from the job should bear
burden
o (3) Since s life was on the line he shouldve
been more safe
o US v. Carroll Towing
Determining negligence in sinking of the barge
Bargee was not on board to prevent collision
If it cost $25,000 to hire a bargee to avoid $30,000 and
didnt negligence
If vice versa no negligence

Learned Hand Formula

o Used to evaluate burden, probability, and foreseeable injury
If Burden is less than probability x injury, then a court will
ask a person to exercise care
o B < PL
For example,
B = Hiring someone as a bargee for $50,000
PL = Damages of $25,000
Court will not impose duty of care because the PL is less
than B
o Policy

Promotes fairness, economic efficiency, and gives juries a

concrete formula
o Applying the formula
It is a good way to evaluate, but in other circumstances it
might not work b/c a reasonable person might not have
time to go through the formula before acting
Can apply to emergency situation, but is only taken into
account rather than determinative

Proving and Evaluating Conduct

o cannot prevail if they do not know what the did
o Santiago v. First Student
Bus collision when was 8th grade. Didnt remember any
details
Summary judgment granted b/c no evidence

Evidence
o HAS BURDEN OF PROOF AND PERSUASION
o Direct evidence
(1) Clearly shows fact
i.e. if you got into an accident and a police officer
had clocked your speed
(2) Circumstantial Evidence
Evidence that permits inference
i.e. long skid marks identifying that s car was
speeding
(3) Eyewitness Testimony
Juries heavily weight it
(4) Expert Witness
Required to give opinion on a particular field
Jury decides what expert to believe

Slip and Fall cases

o Prima Facie
(1) Owner created dangerous condition; or
(2) Had actual knowledge of dangerous condition and failed
to eliminate risk
(3) Mode or method of business made it foreseeable that a
dangerous condition would arise
o Thoma v. Cracker Barrel
left her seat to go to the bathroom and slipped on wet
area that was caused by condensating pitchers
Reversed and remanded

o Wal-mart Stores v. Wright

Woman slipped on puddle of water in the outdoor garden
area.
o Failure to follow a partys precautionary steps or procedures is
not necessarily failure to exercise ordinary care

Industry Custom/Standards
o Role of customs
(1) Evidence of custom is relevant as it dictates what a
reasonable person might do
(2) Custom could be used as evidence of foreseeable risk
o Use of custom is admissible because it establishes a standard by
which ordinary care may be judged
Duncan v. Corbetta
Staircase injury when builders used wood that wasnt
custom
Pressure-treated v. non pressure-treated
o TJ Hooper
Barges towed by two tugs were lost.
Custom was to have radios on board to receive
transmissions of storms
Not costly to acquire
Learned Hand rule

Breach of Duty
Apportionment Basics w/ Multiple Parties
Joint and Several Liabilty (most states)
o When two or more tort-feasors act concurrently to produce a
single injury
o Initial tort-feasor may be liable for s whole damage that
proximately resulted
o can sue both tort-feasors separately, or in same action
o can receive judgment against either one and enforce it against
one, or against both and enforce it against both
o cannot get more than full compensation
o s can sue each other for their contribution %

Several Liability
o can recover percentage from both s
i.e. 70% 1 & 30% 2
o If one cant pay up is out whatever small amoeba cant
pay

Comparative Fault

Factual Causation
But For Test (If it wasnt for x y wouldnt have happened
o Hale v. Ostrow
tripped when trying to navigate overgrown bushes and
cracked concrete
Jury must decide on what exactly happened, but must also
speculate on hypotheticals
But-for the overgrown bush?
But-for the cracked concrete?
o Salinetro v. Nystrom
o NOT A BUT-FOR case b/c if doctor wouldve asked, the same
result wouldve occurred
Woman goes to doctor and gets x-ray. Has to abort a baby
as a result
Sues doctor for not asking when her last menstrual
cycle was
Ct. grants judgment for doctor

Substantial Test
o

Liability of two + s
o When divisible Injury
Apportion damages based on causality, with each liable
only for injuries it alone caused
1 Broken Arm, 2 Broken Leg
1 liable for arm, 2 liable for leg
o When indivisible
Both s liable
Indivisible when
(1) Single injury and both s but for cause
o 1 and 2 Broken Leg and Arm
1 and 2 both liable for arm and leg
(2) Single injury and each a substantial factor
o W/o 1s action 2 wouldve caused harm, and
vice versa
OR
o 1 and Mother nature
o Each is sufficient cause of s injury
o Anderson v. Minneapolis Railway

 property burned by fire either from s

engine or forest fire sweeping towards
s property
But-for 1 house would still burn b/c
of forest fire
But-for forest fire 1s engine would
still burn property
(3) Divisible injury but dont know which caused it
o Landers v. East Texas
Salt water from both companies ruined
s pond and dont know what company
did what
ALL of the wrongdoers are held jointly
and severally liable when there is no
certainty
can go ager one separately, or
against both in one suit
When unknown what caused the harm
Summers v. Tice
o and two others were hunting, when they
both shot and the s eye was hit
Both s held liable since both
participated in negligent activity

o Loss of Chance
Proximate Causation
General Rule: Must be w/in scope of risk
o Not proximate if is in position of relative safety
Alternate approaches
o Multifactor Test (Palsgraf)
Much space,
How much time has passed,
Intervening cause,
How substantial a factor was s negligence
Natural continuous sequence of events
o Rescue Doctrine
Danger invites rescue
Rescuer can recover from
o Intervening acts
o Palsgraf v. Long Island RR
Push man onto train and suitcase filled with fireworks
explodes, and caused scales to fall and hit

 Court used multifactor test to show no negligence

o Wagner v. International Railway
s cousin fell into gorge after RR said passengers can
stand outside railway cars
went to recover body, but got injured doing so CAN
SUE FOR NEGLIGENCE

Scope of Risk
o Proximate cause when the harm which occurred was of the same
general nature as the foreseeable risk created by the s
negligence
Medcalf v. Washington
Attacked outside when buzzer was broken
No liability to landlord b/c an attack wasnt
foreseeable
o An actors liability is limited to those physical harms that result
from the risks that made the actors conduct tortious
(Restatement 3d)
o Liability is rejected unless reasonable person would have
foreseen and avoided same kind of harm suffered by
o Not liable when some entirely different risk eventuates to an
entirely different harm
Harm w/in SCOPE OF RISK
o Foreseen harm or risk of same general type and general class of
person
o Took greater precautions to avoid than
o * General Rule: Actual harm can be w/in scope of risk even if
exact harm, extent of harm, or exact manner of its occurrence is
not foreseeable
Broad v. Narrow Approach
o Broad: an injury is within scope of risk as long as the harm was
foreseeable, even if precise mechanism of harm wasnt
Hughes v. Lord Advocate
Left unguarded manhole surrounded by kerosene
lanterns. Boys dropped lantern into manhole causing
explosion and harming
Unforeseeable mechanism = lantern exploding
Foreseeable harm = open manhole
NEGLIGENCE
o Narrow: Must include foreseeable mechanism, unlike broad
approach
Doughty v. Turner
dropped cap into molten hot liquid wasnt
injured by splash, but by chemical reaction explosion

NO NEGLIGENCE mechanism was not foreseeable

o Superseding Cause
Breaks the causal chain
Some other act happens after s negligence
Defense
Both acts together led to s injury
o Intervening Criminal Acts
Court should place responsibility on criminal
Watson v. Kentucky and Indiana Bridge & RR
derailed gasoline tank Criminal threw match
explosion injured
o RR was not liable b/c criminal act
EXCEPTION
When a criminal act is foreseeable
Hines v. Garrett
o Train passes s stop but lets her out at the
next one where there is known criminal activity
o was assaulted
o TRAIN IS LIABLE
o Intervening Suicide acts
Suicide will be considered the cause of s act unless the
s negligence rendered the unable to appreciate the
self-destructive nature of the act
Delaney v. Reynolds
stored gun loaded and unlocked. was crackhead
who took gun and misfired two shots before she
turned the gun on herself and it discharged.
Was the risk of grabbing fun foreseeable? Maybe.
o Negligent Intervening acts
When a 3rd party intervenes between s negligence, it
automatically severs causal chain if its not NORMAL OR
FORESEEABLE
Derdiarian v. Felix Contracting
Worksite was slammed by a driver having an
epileptic seizure who didnt take medicine (negligent)
Worksite was still liable because they didnt
safeguard worksite
Ventricelli v. Kinney

leased car with defective truck, which attempted

to repair. was parked and attempting to slam lid
when oncoming car ran into
o Not liable because intervening act was not
foreseeable
o Car is parked where cars are normally parked
would be different if it was on the shoulder of
the highway?
Unforeseeable accident

EXCEPTION
When risk created by has not stabilized, an
intervening cause does not interrupt
Marshall v. Nugent
o Saw truck coming that went off-road driver
stopped to pull truck back onto roadeffort
blocked road went to flag oncoming
motorists about obstruction drove over hill
and hit
Verdict against truck driver
His negligence was not over yet!
Still being pulled off the side of the
road
MEDICAL MALPRACTICE INTERVENING CAUSES DO
NOT BREAK CAUSAL CHAIN

Zone of Danger
o s actions create a risk within a certain vicinity; persons within
the range of apprehension are owed a duty by the

Res Ipsa Loquitur

USED TO REACH THE JURY
o Fact of accident suggests more likely than not negligence caused
harm
o Defendant more likely than not tortfeasor
Majority rule w/ multiple s (Restatement)
No res ipsa unless
o (1) 1 most likely tortfeasor
o (2) Shared responsibility
Even if cant offer evidence, it is enough to get to a jury
o Requirements
Accident would not happen w/o negligence

Negligence is attributable to the

Cannot have any contribution from the

o s defenses
can relent res ipsa by proving actual cause
can show other common non-negligent causes of the
accident
can try to prove he acted w/ due care
Suggested that claim res ipsa when has better access
to evidence

Cases
o Byrne v. Boadle
Flour barrel to the face
Doesnt typically happen
o Koch v. Norris
High voltage line fell and damaged s property
Weather was sunny and winds ordinary
o Cosgrove v. Commonwealth
During storm, power lines fell and started a fire with a
buried fas line that was leaking
Can hit gas co. with res ipsa, but not electric

Products Liability
Medical Malpractice
Standard of care is dictated by practices in the profession
o Heart surgeon is held to heart surgeon standard, etc
Expert testimony is required
o Especially for Res Ipsa
Locality rule is no longer applicable
Required to make known ALL serious risks of surgery or not undergoing
a procedure so patient can make a sufficient decision
Not required to disclose everything UNLESS
o (1) It is a serious risk to the
o (2) Industry standard requires doctor to inform about something
Common Carriers
Landowners
Action and Inaction
Wrongful Birth/Wrongful Life

Wrongful Death
Survival
Contracts/Undertakings
Immunities
Negligence Defenses
Liability
Vicarious Liability/Respondeat Superior
Strict Liability
Product Liability