8/20/09

Intentional torts
Negligence
*Supplement reading by a horn book

Briefing:
Operative facts
Issue: Is JD has the cause of action for battery against JD?
Rule: Definition for …..Accurately
Rational
Conclusion

Tort is a civil wrong

- is a civil wrong, other than a breach of contract, for which the law provides a remedy
- Purpose is to make you whole
o To restore the injured party to their original condition, insofar as the law can do
this, by compensating them for their injury
Precedence is the prior ruled cases that support certain rules of lax

Statutory Law
Constitution Law – supreme la w of the law
- If the state enacts a law that goes against US Constitution, that law is
Appellate opinions
Trial court – decide the questions of fact
- No precedence

Elements of the cause of action

- Theory of the recovery

Intentional torts

Battery

Battery is an intentional act by the defendant which brings about harmful or offensive contact
to the plaintiffs person.
- Elements:
o Intent – is either specific or general
 Specific intent- the actor intends the consequences of his conduct if his
goal in acting is to bring about these consequences
 General intent – and actor intends the consequences of his conduct if he
know with a substantial certainty that these consequences will result
 o Harmful or offensive contact
o Plaintiffs person

827/09

Basis of liability:
1. Intent
2. Negligence
3. Strict liability

Burden of proof is shifting the responsibility.

- 51% preponderance of the evidence (more then 50%)
- Clear and convincing evidence
o Punitive damages are to prevent future conduct
- 100 beyond the reasonable doubt (highest level of proof)
Volitional act - with deliberate intention

1. Intent
a. Good faith and mistake do not negate intent.
b. Transferred intent
i. Where the Δ intents to commit a tort against one person but instead
commits a different tort against that person, or commits the same tort
intended against a different person, or commits a different tort against a
different person the intent to commit a tort is transferred to another tort.
ii. The doctrine is limited to 5 intentional tort that fell with in the common
law writ of trespass: assault, battery, false imprisonment, trespass to
property and trespass to chattel.
Battery
- Restatement of torts is our back letter law!
- An actor is subject to liability to another for battery if
o (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
o (b) a harmful contact with the person of the other directly or indirectly results.
- (1) An actor is subject to liability to another for battery if
o (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
o (b) an offensive contact with the person of the other directly or indirectly
results.
-
 - (2) An act which is not done with the intention stated in Subsection (1, a) does not
make the actor liable to the other for a mere offensive contact with the other's person
although the act involves an unreasonable risk of inflicting it and, therefore, would be
negligent or reckless if the risk threatened bodily harm

- Does not need to cause injury

- Can only be offensive
- Awareness of the person battered is irrelevant because it is not one of the elements
- The touching element is satisfied by the touching of the object that is intimitly
connected to the π’s body
Assault (2nd restatement of torts)
- (1) An actor is subject to liability to another for assault if
o (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
o (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.
- Words alone are not
- The apprehension must be of the imminent touching

False Imprisonment (min 3)

- (1) An actor is subject to liability to another for false imprisonment if
o (a) he acts intending to confine the other or a third person within boundaries
fixed by the actor, and
o (b) his act directly or indirectly results in such a confinement of the other, and
o (c) the other is conscious of the confinement or is harmed by it.

- (2) An act which is not done with the intention stated in Subsection (1, a) does not
make the actor liable to the other for a merely transitory or otherwise harmless
confinement, although the act involves an unreasonable risk of imposing it and
therefore would be negligent or reckless if the risk threatened bodily harm.

-
- An intentional act or omission to act on the part of the Δ that confined or restrains the π
to a bounded area
- Will result when the π is restraint by the use of physical force directed to π or to his
immediate family
- An action of FI can be stated if the force is directed against π’s property
- Infliction is when the officer cannot arrest
- Misdemeanor – period do incarceration is under one year
- Felony – more then a year
 - A felony arrest without a warrant by a police officer is valid if the officer has reasonable
grounds to believe that a felony has been committed and that the person arrested has
committed it.
o Warrant is the judicial order issued
- For a misdemeanor both police officers and private citizens are privileged for
misdemeanor arrest w/out a warrant if the misdemeanor was a breach of the peace and
was committed in the presence of the arresting party.
- Shoplifting privilege
o For the privilege to apply
 There must be a reasonable belief as to the fact of theft
 The detention must be conducted in the reasonable manner and only a
non-deadly force can be used
 The detention must be only for a reasonable period of time and only for
the purpose of the investigation
o A COA will not be sustained if the person is subjected to the moral pressure
o Future threads are insufficient
- Awareness of confinement is the necessary element of FI, unless the person confined is
actually injured by the condiment
- The size of the area is not a important
- Coming voluntarily is not a defense
- Awareness
- Luxury of the are is not a defense
-

Intentional infliction of Emotional Distress

- An intentional act by a def. amounting to extreme and outrageous conduct intent on the
part of the def. to cause plt. to suffer severe emotional distress or recklessness as to the
effect of the def.’s conduct
- (1) One who by extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for such emotional distress,
and if bodily harm to the other results from it, for such bodily harm.
- (2) Where such conduct is directed at a third person, the actor is subject to liability if
he intentionally or recklessly causes severe
o
- re emotional distress to another is subject to liability for such emotional distress, and
if bodily harm to the other results from it, for such bodily harm.
- (2) Where such conduct is directed at a third person, the actor is subject to liability if
he intentionally or recklessly causes severe emotional distress
o (a) to a member of such person's immediate family who is present at the time,
whether or not such distress results in bodily harm, or
o (b) to any other person who is present at the time, if such distress results in
bodily harm.
-
 - NO PHISICAL INJURY NEEDED
- Extreme and outrageous
o Outrageous conduct is conduct that transcends all bound of decency tolerated
by society
o Insulting language will no be considered as outrageous conduct unless there is a
special b/w a π and Δ or an insensitivity on π’s side of which the Δ is aware.
- Bystander cases caused infliction of Emotional Distress
o Elements:
 plaintiff was present when the injury occurred to the other person
 π was a closed relative to the injured person
 Δ knew that the π was preset and the close relative of the injured person

Trespass to land

- An intentional act on def. part to bring about a physical invasion of π’s real property.
- One is subject to liability to another for trespass, irrespective of whether he thereby
causes harm to any legally protected interest of the other, if he intentionally
o (a) enters land in the possession of the other, or causes a thing or a third
person to do so, or
o (b) remains on the land, or
o (c) fails to remove from the land a thing which he is under a duty to remove.
- A trespass may be committed by the continued presence on the land of a structure,
chattel, or other thing which the actor or his predecessor in legal interest has placed
on the land
o (a) with the consent of the person then in possession of the land, if the actor
fails to remove it after the consent has been effectively terminated, or
o (b) pursuant to a privilege conferred on the actor irrespective of the
possessor's consent, if the actor fails to remove it after the privilege has been
terminated, by the accomplishment of its purpose or otherwise.
-
- Physical invasion – interest protected is the interest in exclusive possession of realty
- It is not necessary that a def personally come to the land
o Ex. Neighbor dumping trash on your property
o Fluid to property
o Nuisance (not responsible)

- Mistake as to the lawfulness of the entry is NOT a defense as long as the Δ indented an
entry upon the this particular land.
- Actual injury to the land is not an essential element to the cause of action
- Made to protect exclusive possessory right to the land
- If the intrusion interferes w/ the right to exclusive possession of the property, the law of
trespass applies
Trespass to Chattel
- An intentional act of Δ that interferes w/ π’s right of possession in the chattel
- Is to protect a person against interferences with a right to possess a chattel
- Mistake as to the lawfulness to the Δ’s action is not a defense
- Intent to trespass is not required, intent to do an act constituting the act is sufficient
- Might need damages to prove trespass

Conversion
- An intentional act by defendant interfereing with π’s right of possession in the chattel
that is serious enough in nature and consequence to Warrant that the Δ payed a full
value of chattel.
- Remedies = solutions, relief
o Damages
 Fair market value of the chattel
 Replevin – if you wish to have your chattel return

Privileges (Defenses)

Consent
- The Δ is not liable for a tortures act if the π consented to a Δ’s act
- Expressed Consent
o Is actual consent where π has expressly showed wiliness to submit to Δ’s conduct
o Consent induced by fraud is not a defense
o Consent induced by duress is not a defense
- Implied Consent
o Apparent consent
 Is that when a reasonable person will infer from π’s conduct
o Consent implied by law
 Where action is necessary to safe a person’s life or other important
interest in person or property
 Ex. Emergency care
o A person cannot consent to a criminal act

Self-defense
- The actor needs only to have a reasonable belief as to the other party’s actions
- One may use only that force that reasonable appears to be necessary to prevent the
harm

Defense of others
- One may use force to defend another person only when the other person could have
used force to protect themselves

Defense of property
 - One may use reasonable force to prevent the commission of the tort against hi property
- Is limited to preventing the commission of a tort against the property
- Once the tort was committed one cannot
Necessity
- Public necessity
o Where the act is for the public good the defense is absolute
- Private (look it up!!!)
o When the act is solely to benefit any person’s private property from the
distraction to prevent and the actor must pay for the injury he causes

Shoplifting privilege
- For the privilege to apply
o There must be a reasonable belief as to the fact of theft
o The detention must be conducted in the reasonable manner and only a non-
deadly force can be used
o The detention must be only for a reasonable period of time and only for the
purpose of the investigation
- A COA will not be sustained if the person is subjected to the moral pressure
- Future threads are insufficient

Justification – defendant’s actions may be justified where the actions taken were done
reasonably and done to protect others and personal property

Negligence

- Elements:
o 1. The existence of the duty on the part of the Δ to conform to a specific
standard of conduct or protection of the π against an unreasonable risk of harm
to all foreseeable plts
o 2. breach of that duty by the Δ
o 3. The breach by that duty of the Δ was the actual and proximate cause of π’s
injury
o 4. for damage of π’s person or property
- 1. Duty
o When a person engages in an activity he is under a legal duty to act as an
ordinary prudent reasonable person under the circumstances
o No duty is imposed on the person to take precautions against events that cannot
reasonably be foreseen
o Conduct falls beyond Standard reasonable standard of care is fault
o Duty of care is owned only to a foreseeable plaintiffs
o Judge Lerner theory Cost
o Contractual obligation
 o Liability limiting tool
o Under objective theory
o Relevancy – all evidence is admissible if it is applicable to the isssue
o Custom and usage is a good standard for a prudent reasonable person should do
in the industry. But it is not conclusive
 Practice or rule of conduct established in a particular community, locality,
or trade, by long usage and obligatory on those within its scope. A valid
custom must be certain, reasonable, not contrary to statute law,
o When the child is compared to a what a reasonable child of like age, intelligence
and experience done under the circumstances
 The standard of care to be applied to minor is to act as a minor of like
age, intelligence and experience, unless a minor is engaged in the adult
activity and then the reasonable prudent person would apply
 Once the minor engages in the adult activity he is compared to the
reasonable adult person under the circumstances
o People with physical disabilities are compared to the reasonable person with a
similar disabilities
 Physical characteristics of the person whose conduct is being evaluated is
taking in the account and in applying the reason person standard (what
would a reasonable blind person do in the circumstances)
o Mental disabilities are compared with a reasonable prudent person under the
circumstances
 The mental handicap of the defendant is not taken into the account to
evaluate the reasonableness of the account
Professionals
- Duty – one engaged in the activity has the duty of care to all foreseeable plaintiffs
- Breach- actions fell below the standard of care of a reasonable prudent professional
under the circumstances
o Not compared to the new professional, but to a licensed individual
o Remains the objective standard
o Expert testimony establishes standard of care
o Issue: what a reasonable doctor should say or what is the reasonable patients
want to know?
o Is there a statute violated?
 Osborne case
 A statute is a short cut to establish standard of care
2. Breach
a. Objective standard
i. Defendants conduct is measured against a reasonable ordinary prudent
person
b. Statutory standard of care
i. The standard of care in negligence may be established by proving the
applicability to the case of a statute providing for a criminal penalty
 ii. If this is done the statutes specific duty would replace the more general
duty of care
iii. In proving the applicability of the statutory standard plaintiff must show
the following:
1. Plt must show that he is in the class intended to be protected by
the statute
2. Plt must show that the statute was designed to prevent the type
of harm that the plaintiff suffered
3. The statute must be clear as to what standard of conduct it is
expected when and where and of whom it is expected
iv. Violation of the statute is negligence per se
- This means that pltf has established a conclusive presumption of
duty and breach of that duty
ii. Excuses for violation of statutes
1. Were compliance would cause more danger then violation
a. objective
2. where compliance would be beyond def.’s control
2. Res Ipsa Loquitur
- Elements:
i. The accident causing the injury would not occur unless for the negligence
taken place
ii. Pltf must show that the instrumentality that caused the injury was in the
sole control of the def
- Where the res ipsa element had been proven by plt he has made a prema facia
case and no directed verdict may be granted to def.
- Directed verdict- judge gets to call it, the case doesn’t go to the jury
- Direct evidence -
- Circumstantial evidence
 Pltf must proof facts from which the jury can infer that the def acted
unreasonable

10/22/09

Actual cause = Causation in fact

- Before the df’s conduct can be found to be the proximate cause of pl’s injury, it
must first be found to be the cause in fact of the injury
- An act or omission to act, is the cause in fact of an injury when the injury would
not have occurred but for the act, this is called the “but for” test

The but for test applies, 

- where several acts combine to cause the injury, but none of the acts standing
alone would have been sufficient.
 - When separate acts of negligence combine to produce a single injury each tort
feasor is liable even though neither act alone would have caused the injury.
- But for any of the acts, the injury or damage would not have occurred
- Where the def’s fault increases the likelihood of harm the fact that it might have
happened in the absence of fault it is not enough to break the cause in a fact
sequence
- Possibility will not sustain the verdict
- The reduction or loss of chance of recovery is recoverable under law

 Joint Causes – Where several causes concur to bring about an injury and anyone alone would
have been sufficient to cause the injury.
- It is sufficient if the df’s conduct was a substantial factor n causing the injury

Concurrent Causes
- The but for test
- When separate acts of negligence combine to produce a single injury each
tortfeaser is liable even though neither act alone would produce the injury
-
Alternative causes are where two or more parties are negligent but it is not certain who caused
the plt.’s injury
- Plnt must prove that the harm has been caused by one of the def.
- The burden of proof then shifts to the def. and each must show that his
negligence is not the actual cause

Proximate cause =legal cause

- Def. conduct must be a proximate cause of pltfs injury
- Not all injuries actually a caused
- Is a limitation of liability and deals with liability or non-liability for unforeseeable
or unusual consequences of one’s act
- The rule of proximate causation is that the def. is liable for all harmful results
that are in the normal incidents of and with in all of the harmful incidents the
text is based on foreseeability
- Is a legal doctrine that cuts of the liability for harm even thou the harm was
caused in fact of def’s negligent conduct b/c it would be unfair and unjust to hold
the def. liable.
- Testing
 Is it direct or indirect?
 Foreseeable = then the def. is a proximate cause of P’s injuries
-

Direct cause cases

 - Direct cause is where the facts present an uninterrupted chain of event from the
time of def.’s negligent conduct to the time of the plt’s injury
- If the injury was at all foreseeable from the def’s negligent conduct the unusual
manner in which the injury occurred or the unusual timing of cause and effect is
irrelevant to the def’s liability.
- Where def’s negligent conduct creates a risk of harmful result but an entirely
different and unforeseeable type of harm occurs def. is not liable for that harm.

Indirect causes
- Where the facts indicate that the force came into motion after the time of the
def’s negligent act and combined with a negligent act to cause injury to the plt.
- Indirect cause cases are those where intervening forces are present
- Whether an intervening force cuts of the def liability is determined by
foreseeability
- The acts of a third person that intervene b/w def.’s negligent conduct and plt’s
injury will interrupt the causal link if the conduct extraordinary, unforeseeable
and independent.
- It will not interrupt the causal link if it is a normal foreseeable consequence
flowing naturally created by the negligent conduct.
- Any subsequent negligent act is an intervening act, but only if the act is deemed
superseding will the original actor will be relieved of liability
- “Fainting”-
 is it volitional act?
1. Negligence?
a. No volitional act no liebility
 Is there a prior knowledge
1. If so then the seizure becomes foreseeable
2. Falls beyond the ordinaries person’s standard of care = breach
- How to write it out:
 D v. Deridian
1. Negligence
a. Duty
b. Breach
c. Causation
 Cause in fact
 Proximate Cause (issue: is the burning of deridian
proximately caused by dickens?)
1. Direct Cause
2. Indirect Cause
d. Damages

Joint Tortfeasors
 - Tortfeasors who engage in concerted action that is unreasonable conduct and
injures Plt. Are both liable to P. The essence of joint and severable liability is the
P’s can collect the full amount from either def.
- In CA each Tortfeasor only should pay the amount of damages that represents
the % that tortf contributed to the injury under the satisfaction and release
- P can file a suit against potential Ds and take judgment but P may collect only
one full satisfaction under satisfaction and release
- Any joint Tfsr that pays more then his share of the % of his damages may seek
contribution i.e. partial reimbursement from other joint tortfeasor
 This right of contribution is not affected by P chose of Ds and may be
enforced through 3rd party claim or separate contribution action if P does
not join all of the joint tortfeasors
- Where jury can’t reasonably establish responsibility or separate damages for
each tortfeasor that the injuries are indivisible and all Ds jointly and severally
responsible even though there is no concert of action

Comparative negligence
- Purely statutory
- Un absence of such we have joint and severable liability

Contribution and Indemnity

- Indemnity entitles a party to full reimbursement of cost of suit where one D is

vicariously liable for another action or contractually labile but not where Ds were
concurrent torfeasors
- Between multiple Ds
- Apportionment is the tool that allows the jury to allocate the damages b/w the
two incidents and assess damages against Ds only for the injuries received in the
first incident

Duty
- A liability limiting tool
- Cardozo (Majority): Zone of Danger
- Andrews (Minority): Once you engage in an activity you have a duty of care to all
foreseeable pl’s
- Duty: An actor has a duty to exercise reasonable car when the actors condut creates
a risk of physical harm

Privity of K
 - Gives rise to a duty of care

During final- Default is no duty of care, you must find a duty of care

What triggered the duty of care in these actions?

- In the absence
o Is there a contractual privity?

The elements of control and knowledge furnish the ingredients of a duty to warn!!!!

Tarasoff
- A duty to warn
- A warning which a therapist sends to a person whom a client has communicated an
intent to harm

Pure Economic Injury

- Liability is cut off in the absence of physical impact
- A pl is denied recovery for economic loss if that loss resulted from physical damage
to property, in which he had no proprietary interst

Pure Emotional Distress

- The ct replaces a definite subjective test, with a definite physical injury test
- The distress must be so severe as to manifest itself in an objective physical injury

Negligent Infliction of Emtional Distress

Requires:
1) Duty
2) Breach
3) Causation
4) Damages
Definite and objective physical injury

Thing v. La Chusa
Negligent Infliction of Emotional Distress
Bystander Recovery
Damages for emotional distress are recovered, is and only if
1) Pl established a close familial relationship
2) Pl is present at the scene and is aware of the injury being caused
 3) Pl as a result suffers serious emotional distress beyond that of disinterested
witnesses and which is not abnormal

Review

Exam taking technique

Q1

Harry v. Edward

Can Harry state the COA for Negligence against Edward?

To establish the professionally negligence the following elements must be established:

1. Duty
- There is duty
- Foreseeable plaintiffs
2. Breach
- The conduct falling below the conduct of care
- The reasonable prudent person would erect the net that is higher better
3. Causation
- Is it a cause in fact?
 But for test
 But for his failure to erect the higher net, harry would not be injured
- Is it direct or indirect cause?
 No intervening causes
 Uninterrupted chain of events
4. Damages
- The facts indicate that Harry suffered damages

Berry v. Edward

Can Barry state the COA as a bystander for Negligent infliction of emotional distress against
Edward ?
No NED fails on too many elements (not present, not in the zone of danger)
1. Duty
a. P. 455
b. 3 element of Thing
c. Replace the zone of danger
d.

Edward v. Berry
 1. Battery
- Intent
2. Negligence
- Throw a brick
 No reasonable prudent person would throw a brick

Q2

David v. Jill

1. Can David state the COA for Negligence against Jill

- Duty
 Carrying the canister of peper sprey gave rise to duty
- Breach
 Reasonable person would take care of the canister
 Negligence per se
1. 3 elements
2. Apply elements
- Causation
 Causation in fact
1. Conclusary remarks
2. But for he would not have spray himself and not have additional
injuries
3. Original breathing difficulties
a. Indirect cause
C. David picked it up and sprayed himself is
intervening act
D. Deredian
1. Superseding
a. The acts of a third person that
intervene b/w def.’s negligent
conduct and plt’s injury will
interrupt the causal link if the
conduct extraordinary,
unforeseeable and independent
b. Its is not uncommon for the boy to
spray themselves
c. Jill’s negligence is the cause of his
actions
4. Pulmonary injury
a. Indirect cause (see supra)
b. Diridian def
C. Is Misdiagnosis extraordinary, unforeseeable and
independent?
5. Medical Transport
a. Drinking and driving issue
b. Criminal acts are unforeseeable etc. and cut off liability
c.