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Torts 180.02.

F15 “Attack” Outline


Professor DeMott Fall 2015

Intentional Torts
Battery
Elements
1. Intent to cause harmful or offensive contact
a. Dual intent v. single intent
b. Acting with purpose to cause consequences or with knowledge that the
consequences are substantially certain to result
c. Transferred intent (Singer v. Marx)
2. Harmful or offensive contact
a. To the body or an extension of the body (knocking a hat off a head)
3. Lack of Consent

Defenses
1. Consent
a. Scope of consent (Lane v. Holloway, Hellriegel v. Tholl)
b. Express v. implied
c. Presumed consent (medical situations/surgeries)
2. Self-Defense (2d., §63)
a. Reasonable person must see the need for self defense
b. Proportionality (Lane v. Holloway)
c. Limits on the authorized use of deadly force (2d., §65) Silas v. Bowen, Brown v.
Martinez)
i. To prevent the commission of a felony
d. Defense of a third person (2d., §76)
e. Defense of land and chattels (2d., §77)

Damages
1. No requirement of showing actual damages
a. “Offensive” is measured by the standard of the reasonable person
2. Defendant is liable for the full extent of the damages

Assault
Elements
1. Intent to cause imminent apprehension of a harmful or offensive contact
a. Imminent = pay attention to timeline of the threat
2. Imminent apprehension of harmful or offensive contact
a. Words alone do not constitute an assault, but surrounding (2d., §31)
3. Lack of Consent
4. Knowledge of the assault (§22)
a. Plaintiff can’t have an apprehension if they are unaware of the defendant’s actions
(e.g. pointing a gun at a passed out person ≠ assault)

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Torts 180.02.F15 “Attack” Outline
Professor DeMott Fall 2015

Defenses
1. Consent
a. Scope of consent (think of going to a haunted house – consent to be put in
imminent apprehension?)
b. Express v. implied
c. Presumed consent
2. Self-Defense
a. Reasonable person must see the need for self defense
b. Proportionality
c. Defense of a third person (2d., §76)
d. Threatening somebody to stay away or you’ll kill them?

Damages
1. No requirement of showing actual damages
a. “Apprehension” is measured by the standard of the reasonable person
2. Defendant is liable for the full extent of the damages

Trespass to Land
Elements
1. Intentional entry onto land of another without consent
a. Intent requirement is minimal
b. Mistaken entry onto land is still trespassing (2d., §164, e.g. entering land under the
assumption it is public land, but it is actually private land)
c. Involuntary/accidental entry onto land is trespassing, but is only actionable if
actual damages result (e.g. falling onto private land)

Defenses
1. Consent
a. Scope of consent
b. Express v. implied (traveling salesman)
c. Presumed consent
2. Necessity
a. Retrieving livestock
b. To avoid injury, risk of loss (Ploof v. Putnam)
c. Emergency situations
d. Travelers on highways who need to exit the highway to avoid obstruction

Damages
1. No requirement of showing actual damages
2. Actual damages are required for a cause of action based on involuntary trespass

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Torts 180.02.F15 “Attack” Outline
Professor DeMott Fall 2015

Trespass to Chattels
Elements
1. Intent
2. Dispossession of a chattel or intentional use or inter-meddling with a chattel in the
possession of another (2d., §217)

Defenses
1. Consent
2. Necessity

Damages
1. Very limited situations where recovery is allowed (2d., §218)
2. Conversion is better for damages!

Intentional Infliction of Emotional Distress


Elements
1. Intent or Recklessness (3d., §46)
a. Single intent
2. Extreme and outrageous conduct
3. Severe emotional harm results
a. Where a reasonable person would be unable to adequately cope

Fraud/Intentional Misrepresentation
Elements
1. False representation
2. Made with knowledge or belief of its falsity or reckless indifference to its falsity
3. Intent to induce the plaintiff to act
4. Justifiable reliance
5. Resulting damages

Defenses
1. Contributory negligence ≠ not a defense
2. Opinion v. fact
a. Depends on the specificity of the claim

Damages
1. Plaintiff must show fraud with clear and convincing evidence to recover

Negligence
Elements
1. Duty
a. Matter of law

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Torts 180.02.F15 “Attack” Outline
Professor DeMott Fall 2015

b. General duty = not to create a risk of harm to others/to act in accordance with a
reasonable standard of care in the surrounding circumstances (§7)
i. Exceptions/Circumstances affecting the standard of care: age, knowledge,
disability, emergencies (§9-§12)
c. Foreseeability
i. Most jurisdictions include foreseeability standard
ii. Restatement, 3d., §7 does not include foreseeability
d. No-duty determinations are made for public policy reasons
e. Affirmative duties (exceptions to the no-duty-to-rescue rule)
i. Defendant created a risk (tortiously or not) and plaintiff required aid (§39)
ii. Special relationship between plaintiff and defendant (§40)
iii. Special relationship to a third party who poses a risk (§41)
iv. Defendant voluntarily promised aid/came to rescue (§42)
v. Defendant takes charge of the other (§43)
f. Duties of landowners
i. Invitee/licensee/trespasser
1. Exception: attractive nuisance for child trespassers, rescue trespassers

2. Breach
a. Learned Hand’s Carroll Towing formulation
b. Negligence per se (§14) – look at purpose of statute (type of accident it is meant to
prevent/type of person it is meant to protect)
i. Excused violations
c. Custom (§13)
d. Res Ipsa Loquitur (§17) – accident’s of the type that don’t occur without
negligence; difficulties with evidence

3. Causation
a. Factual causation
b. Proximate causation
i. Direct Cause
ii. Foreseeability Standard
1. Sequence of events
a. Intervening/superseding causes
2. Remoteness of the injury from the cause (temporal/spatial)
3. Substantial factors
iii. Harm within risk
c. Foreseeability
i. General v. specific
ii. What has to be foreseeable: plaintiff, type of harm, manner of harm?

4. Harm

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Torts 180.02.F15 “Attack” Outline
Professor DeMott Fall 2015

a. Physical harm
b. Loss of chance
c. Emotional distress
d. Economic harm

5. Liability/Damages
a. Vicarious liability
b. Joint/multiple tortfeasors

Defenses
1. Contributory/Pure comparative negligence/Modified comparative negligence
2. Assumption of risk
3. Last clear chance (not used anymore)

Strict Liability
1. Animals
a. Livestock
b. Wild animals
c. Abnormally dangerous animals

2. Dangerous Activities
a. Elements (§20)
i. Risk exists even when reasonable care is taken
ii. Not of common usage
b. Sensitive plaintiffs
c. Land use (“escape”)

Products Liability
1. Manufacturing Defects
a. Product does not conform to the specs it should have
b. Product must be defective at the time it leaves the manufacturer’s hands

2. Design Defects
a. Was there a reasonably alternative safer design?
i. Consumer expectations
ii. Risk-utility
b. Exception for unavoidably unsafe products (prescription drugs!)

3. Warning Defects
a. Adequacy of warnings based on a reasonable standard
b. Procedural v. substantive

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Torts 180.02.F15 “Attack” Outline
Professor DeMott Fall 2015

c. Exceptions: Learned intermediaries and bulk suppliers