TORTS OUTLINE

Types of TORTS:
1.​ Intentional torts = battery, assault, and false imprisonment
2.​ Negligence = acting without taking reasonable precautions for the safety of others = you are liable
for the unintended harm caused by sich conduct
3.​ Strict liability = regardless of intent, you can be held liable for the harm of another party (related
to negligence)

Prima Facie Torts

(prima facie case - case presenting sufficient evidence to support the elements of their legal claim) →
Element = required component of a legal claim that party which the burden of proof must demonstrate in
order to win

Intentional Infliction of Emotional Distress (IIED)

An actor is liable for outrageous conduct causing severe emotional distress if the actor
1.​ By extreme AND outrageous conduct
2.​ Intentionally OR recklessly
3.​ Causes severe emotional distress to another

False imprisonment

1.​ An actor intending to confine the other or a third person in fixed boundaries
2.​ This act directly or indirectly results in such a confinement and
3.​ The other is conscious of OR harmed by it
*Said confinement caused there to be damage
Assault
1.​ Acts intending to cause
2.​ Harmful or offensive contact or imminent apprehension of such contact
3.​ Other is, in fact, subjectively put in such imminent apprehension
4.​ And such apprehension is objectively reasonable
*said imminent apprehension caused there to be damage
Current battery elements (and one defense)
To win plaintiff must prove
1.​ Acts (directly or indirectly) intending to cause
2.​ Harmful or offensive
3.​ Contact with the person of another
4.​ The contact happens
*said contact caused there to be damage
But even if P shows all three, D still avoids liability if shows this contact was
4. Privileged (presence of privilege, if any, must be proven by D) → a tort happened, but my defense is
that there's some reason that the defense is not liable or some reason the defense should win (such as you
hit someone (which is the tort) but you did it in self defense)
Market-share Liability
 1.​ Company Y made and sold DES in the market where mom lived
2.​ Mom took DES
3.​ Daughter got a DES related illness
Negligence
1.​ Duty (what the D has to do to avoid liability) → General duty is one of reasonable care under the
circumstances
2.​ Breach
3.​ Actual causation (usually but-for)
a.​ Scope of liability (“proximate cause”)
4.​ Harm

Strict Liability
5.​ Duty (what the D has to do to avoid liability) → Do not through your involuntary actions, cause
any injury to occur - however carefully you do them
6.​ Breach
7.​ Actual causation (usually but-for)
a.​ Scope of liability (“proximate cause”)
8.​ Harm

Causation:
Actual Causation: to win a tort case, a p must prove that a particular d’s conduct actually caused
something to happen to the p
-​ Default rule: conduct is a factual cause of harm when the harm would not have occurred
absent the conduct
-​ “But for” cause → standard but not sufficient
-​ Burden of proof is on the plaintiff to get past 51% chance or greater
-​ And then you need to get to “actual belief”
General v Specific Causation
-​ General = whether a given type of conduct is, as a matter of science, physically capable of
causing the harm alleged → if hard to prove, expert testimony is needed
-​ Specific = whether this particular example of such conduct is, in fact, what caused the particular
harm alleged in this case
Successive causation = Camping fire burns down the Kingston house and once it is destroyed, 3 mins later
a railway fire comes to a charred field
-​ Dillon’s Rule: Total damage inflicted on the plaintiff MINUS the damage which would have been
inflicted even if the first destructive force had not existed
Concurrent Causation = When multiple tortfeasors inflict injuries at about the same time, and when each
would have independently been sufficient to cause injury on its own, each is treated as if it were a but for
cause
-​ Exception: the fire has to engulf the other one or if nature does it (MINORITY for nature)
-​ Loss of chance theory = P has under a 50% chance of survival some courts redefine injury as
reduction in probability, to avoid harsh but for outcome (not all courts use this)
Liability (burden shifting rules):
Alternative liability = When two people cause one harm, it becomes the burden of the defendant to prove
that the other defendant is responsible for the action, if not, then they are jointly responsible
Joint and Several Liability = defendants who are jointly liable can be joined and they are each liable in full
for the plaintiff’s damages, although plaintiff is entitled to only one total recovery
-​ Traditional rule = be acting in concert (aka working together) or create an indivisible harm (aka
it's impossible to know who is actually liable)
Ybarra v. Spangard = (guy who was in a surgery and didn’t know which doctor/nurse hurt him) Where
a plaintiff receives unusual injuries while unconscious and in the course of medical treatment, all those
defendants who had any control over his body or the instrumentalities that might have caused the injuries
may be held liable in an action based on res ipsa loquitur.
-​ Res ipsa loquitur = if the defendant did something negligent, then they can be held liable
Market share liability =
1.​ The generic nature of the product
2.​ The long latency period of the harm
3.​ The inability of plaintiffs to discover which defendant’s product caused the plaintiff’s harm
4.​ The clarity of the causal connection between the defective product and the harm suffered by
plaintiffs
5.​ The absence of other medical or environmental factors that could have caused or materially
contributed to the harm
6.​ The availability of sufficient “market share” data to support a reasonable appointment of liability

Immunities:
Governmental/Sovereign Immunity
-​ The government may not be sued without its consent → historical
-​ Exception: if these governments pass laws consenting/agreeing to be sued, then they can
be sued
-​ Ex. FTCA (federal torts claims act) = only certain types of torts cases can be
brought against the government (federal gov consents to be sued for the torts of
its employees)
-​ Exception to the exception: laws consenting to suit often have limits and caveats
-​ Ex. FTCA consent doesn’t extend to employee’s intentional torts
Charitable Immunity
-​ Charitable organizations are not liable in torts → now abolished
-​ Some legislatures have responded by “insulating charitable organization volunteers from
negligence liability under some circumstances” and limiting liability to beneficiaries
Intrafamily Immunities
-​ Immunities arising out of family relationships are those barring tort claims between husband and
wife and between parent and child → mostly dead
-​ Could have a plea for parental autonomy
-​ No parent-child immunity in wrongful death action brought against a parent intentionally
causing the child’s death
**Both charitable and intrafamily exist in a limited form

Battery Cases & Rules

Vosburg v. Putney = (kicked leg & disease) If you touched someone and that touching was unlawful, the
intention was also unlawful and you are responsible for all the harm caused directly or indirectly
(someone does not have to have subjective desire for a contact to harm)
Garratt v. Dailey = (kid moved chair) “when a minor has committed a tort with force, he is liable to be
proceeded against as any other person would be.” → they must have committed “some wrongful act”
before he could be liable (regardless of age!!)
1.​ Battery is established
2.​ If a person knows
3.​ With substantial certainty
4.​ Whatever you desire
5.​ Will cause contact to occur
Subjective certainty test
D believes low probability of D believes very high
contact (substantially certain)
probability of contact

D subjectively desires to contact Liability Liability

P

D does not subjectively desire to No Liability Liability

contact P
***Limited to “situation in which you have the substantial certainty that the conduct will bring about
harm to a particular victim, or to someone within a small class of potential victims within a localized
area”
Worker’s Comp = Workers injured in workplace accident, gets swift payment without questions and in
“exchange” workers lose right to sue for injury in tort so:
-​ No punitive damages
-​ Often no or few damages for pain and suffering
-​ Pre-set payouts (i.e. table of limbs)
Contact = Garratt v. Dailey shows that direct contact is unnecessary (harmful); A bodily contact is
offensive it if offends a reasonable sense of personal dignity (offensive) → has to be a reasonable person
(not overly sensitive & socially acceptable in time and place)
Note: even actions not ultimately detrimental, like successfully removing a wart from a
non-consenting patient, can be actionable batteries
Offensive battery (often arising in sexual harassment claims) - only intent required is the intent to cause
contact
-​ For an offensive battery to occur the contact must offend a “reasonable sense of personal dignity”
-​ Such as in the Fisher case when the word “negro” was used
Fisher v Carrousel Motor Hotel = (racism)The only intent we need is that flynn had substantial
certainty to touch fisher or fisher’s property
Single v. Dual Intent Jdx
-​ If single intent then all you need to prove is if a reasonable person would be offended
-​ If dual intent then you need to also take into consideration the intent to offend
Transferred intent = if you meant to hit person 1 but hit person 2 instead, you still had the intent to hit
someone and so you a liable
Leichtman v. WLW Jacor Communications = (cigar smoke in face) even smoke blown in someone’s
face can be contact → You need to show that contact happened for the purpose of humiliation
-​ BUT you cannot be overly sensitive

Privileges
Consent - cannot be given under fraud or duress
1.​ Privileged (presence of privilege, if any, must be proven by the defendant)
a.​ Privilege can be “consensual” (when the plaintiff agrees to otherwise tortious act) or
“nonconsensual” (shield the defendant even if the plaintiff objects to the conduct)
O’Brien v. Cunard Steamship Co. = (emigrant passenger; vaccine) A party is not liable for assault if the
alleged unlawful contact was justified or the accusing party otherwise consented to such contact.
(surgeons contact was justified b/c it was for their benefit also) → reasonable person standard
Barton v. Bee Line, Inc. = (raped by chauffeur) consent or not? this is a crime regardless b/c she was a
minor
-​ O'Brien: consent presumed unless plaintiff gave an affirmative no (consent is presumed until
affirmative no)
-​ Barton: no consent unless we have both affirmative yes of some kind and full knowledge (no
consent unit affirmative yes)
-​ Minority view
-​ Hudson: consent is not a privilege even if you willingly participate in a criminal touching (no
situation gets away from tort liability)
-​ Majority view
Hackbart v. Cincinnati Bengals, Inc. = How to distinguish between rule violations and ~rule violations~
= culture/context of the game (what would be something egregious to someone who is used to the rules of
the game)
Consent in the medical context
1.​ Medical battery: procedure done without consent *This term is just for convenience. There is no
separate tort of “medical battery” - its just battery
2.​ Informed consent: procedure done without enough information provided (whether or not there
was technically consent)
***Basic rule: medical touchings are touchings. Even if they are objectively healing, even if they are
proficiently conducted. Even if a theoretical reasonable person would have desired them.
Bang v. Charles T. Miller Hospital = (sterilized the patient w/o his informed/effective consent) no
emergency & so there could be infection if the patient denies the treatment, but that is his right
Circumstances where bang applies:
-​ Not an “emergency” → in an emergency then the actor has no reason to believe that the other, if
he had the opportunity to consent, would decline.
 -​ There are “alternative situations” possibly
-​ These “alternatives” are known “in advance”
Kennedy v. Parrott = (punctured cysts) the surgeon may extend the operation to remedy any abnormal or
diseased condition in the area of the original incision, in the exercise of professional judgment. Applies
when the patient is unable to give consent and no one is immediately available to consent for the patient.
Circumstances when the rule applies:
1.​ For internal surgery under anesthesia
2.​ P “incapable of giving consent, and no one with authority to consent for him is immediately
available”
3.​ “Good surgery” requires it
4.​ It's in the “area of the original incision”
Largey v. Rothman = (lymph node cut & small possibility of the complication she got - did the doctor
have to disclose?) jdx are split: “traditional”/”professional” standard = what would a physician
do/what is the prevailing medical standard; “Prudent patient” standard = what a prudent/reasonable
person in a patient's position would decide in relation to the information that the patient has every right to
expect - information material to their decision (clearing the air about all the substantial possibilities)
Defense of Persons & Property
To justify a plea of self-defense, a defendant must prove:
1.​ He acted honestly in using force (subjectively really did feel threatened)
2.​ His fears of death or serious injury were objectively reasonable under the circumstances, and
3.​ The means and degree of force used were objectively reasonable

✅
Self defense:
-​ Non Deadly force imposed on you = you can give nondeadly/no serious bodily harm right
back (you don't have to retreat)/(in your own home/dwelling) you are able to use reasonable force

❌
aka no deadly or serious bodily harm force
-​ Deadly force imposed on you = (in your own home/dwelling) you can use deadly force/ (in a
non-dwelling place) if you can “with complete safety” retreat/relinquish, you must
Defense of Others:
-​ If the situation does not need a certain amount of force, you cannot bring that amount of force
-​ Applies to family & strangers
Katko v. Briney = (shotgun in abandoned farmhouse) higher value upon human life than upon property
but the court wanted a new trial to decipher intent
Necessity = necessity justifies trespass/other things but does NOT apply if you hurt someone
Ploof v. Putnam = (boat on dock on Lake Champlain) there was no trespass b/c the ploofs had to dock
b/c of the storm & when the servant undocked them, he committed a tort

Vicarious Liability - within battery but can apply to other things

Respondeat superior = Masters are vicariously liable for the torts of their servants committed while the
latter are acting within the scope of their employment (includes employees but not independent
contractors)
-​ Factors to determine employment (vs independent contractor):
1.​ *Control (more employer control → E)
 2.​ Distinct occupation or business (less distinct → E)
3.​ Skill required in the particular occupation (less skill → E)
4.​ Length of time (more time → E)
5.​ Method of payment (by time or by the job) (by time → E)
6.​ Subjective beliefs of entering into M-S relationship (greater beliefs → E)
-​ Independent contractors → Non Liability rule:
1.​ The employer is negligent in selecting, instructing, or supervising the independent
contractor
2.​ The duty of the employer (arising out of some relation to the public or to the particular
plaintiff) is non delegable
3.​ The work is specifically, peculiarly, or inherently dangerous
-​ Direct liability (employers own culpable conduct)
-​ E.g. - negligent failure to do background checks on chuck (the employee), negligent
failure to train chuck, ordered chuck to throw hot oil on the customer.
-​ Was it in the scope of employment? While you’re doing your job. If you go off and do your own
thing for a while (a significant deviation) that's not within your employment
-​ Conduct within the scope of a servant within employment when:
a.​ It is of the kind he is employed to perform
b.​ It occurs substantially within the authorized space and time limits
c.​ It is actuated, at least in part, by a purpose to serve the master AND
d.​ If force is intentionally used by the servant against another, the use of force is not
unexpectable by the master
**Intentional torts under respondeat superior = At common law, applied only for a servant’s negligent
acts, but the modern trend is “to hold employers vicariously liable for the intentional torts of their
employees”

Assault Cases & Rules

***Assault is all about apprehension (not really fear) which is objectively reasonable and subjectively felt
Even if there was something you could do to change it, it would still be imminent
1.​ If you don't sing the national anthem rn i'll beat u up - assault
2.​ If you don't sing the national anthem tomorrow i'll beat you - not assault
a.​ They have time to prevent it - not imminent (like call the cops)
3.​ If i wasn't on probation, i’d beat you up - not assault
Read v. Coker = London 1800s case → no words can amount to assault *this is not the law*
Beach v. Hancock = 1853 America → We as civilized people should have the ability to live without the
fear of unlawful assault
False Imprisonment Cases & Rules
Someone is confined - BUT if there is a reasonable means of exit then it is not false imprisonment
Whittaker v. Sanford = Moral influence is not enough - it has to be physical
Coblyn - shopkeeper’s privilege = Shopkeepers statute provides defense to false imprisonment action
-​ allows a shopkeeper to investigate an alleged shoplifting and means that the shoplifter cannot
claim false imprisonment and file charges against the store owner.

IIED (Intentional Infliction of Emotional Distress) Cases & Rules

Intentional infliction of mental suffering, anguish, disturbance, or emotional distress is its own tort BUT it
has to be severe
-​ Mental anguish = highly unpleasant mental reactions, such as fright, horror, grief, shame,
humiliation, anger, embarrassment, chagrin, disappointment, worry, and nausea. (must be proved
obvi)
What is outrageous? And what is reckless?
-​ “Conduct is so outrageous in character, and so extreme in degree, as to go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community. Generally, the case is one in which the recitation of the facts to an average member of
the community would shout outrageous.”
-​ Reckless = failure to subjectively heed a very obvious and very significant risk of serious injury

Wilkinson v. Downton = practical joke which told the wife her husband was horribly injured and she was
shocked to her core. It caused serious and permanent damages but it wasn't assault, battery, or false
imprisonment → new tort
State Rubbish Collectors Association v. Siliznoff = A party can be liable for intentionally causing
another party mental distress by seriously threatening his physical well-being, regardless of whether the
threats technically constituted an assault under the circumstances.
-​ The court recognizes "a right to be free from serious, intentional, and unprivileged invasions of
mental and emotional tranquility."
Ford v. Revlon, Inc. = (SA case) An employer may be independently liable (so negligence for the master)
for intentional infliction of emotional distress against an employee. → Negligence on the part of the
master, separate from the servant’s actions