Intentional Torts
Elements of Battery
Andrews's Approach to Duty
Defendants owe a duty of reasonable care to the entire world, foreseeability is analyzed under proximate cause
Liability for domestic animals
If defendant aware of vicious propensities and those propensities the same as harm plaintiff suffered, then defendant strictly liable
qualified immunity
state: bad faith (discretionary? Bad faith? gross neg or reck?
Federal : clearly established: 1) was the right clearly established, 2) if yes then would/should reasonable D know it was clearly established?
Tunkl Factors - what are they and when are they applied?
1. To determine whether to enforce an express waiver of liability
2. Tunkl factors:
-Should government regulate this industry?
-Contract of adhesion?
-Disproportionate bargaining power between the parties?
-Is this a business open to the public?
-Plaintiff paid defendant with expectation of protection?
-Good or service of importance to the public?
False Imprisonment
Cause in Fact tests
- But for (Concurrent causes)
- Overdetermined cause
- Alternative Liability
-Concerted Action
-Multiple Sufficient Causal Sets
-Substantial Contribution to the risk
When is a warning required and what do courts say you should always warn about
1. When there is a risk of harm that the normal user would not be aware of
2. Is the warning adequate?
- Adequately indicate scope, extent and consequences of danger
- Adequate in content and intended audience
- Balance of cost benefits of additional warnings
should warn about: 1)irreducible risk, 2) how to mitigate risk 3) what to do if risk occurs, 4) how not to use in a dangerous way
entity immunities?
state: discretionary/ministeral, gov/proprietary
discreationary
1) is it discreationary
2) is this discreationary jusgmdnet one we want to protect? (social, political, economic reason?)
consider peavler factors
gov/properitary:
1) traditionally done by gov?
2) can only be done by gov? (police)
3) charged a fee?
4) if fee then did they make a profit?
Peavler Factors - what are they and when are they applied?
1. Used when determining whether conduct was discretionary or ministerial
2. Factors:
- Nature of the conduct?
- Effect on government operations?
-Court's capacity to evaluate the properity of government action
IIED
Professional Standard of care:
Who does it apply to and what is it?
Applies to: medical professionals, lawyers, accountants, vets, surveyors, engineers, architects, sometimes pilots
Standard: Objective standard considering the average professional's level of skill and training
If off duty, then reasonable person standard applies rather than professional standard, but special skills and training may be considered
tests for each kind of "defect" and what prima facie evidence are needed for each?
Manufacturing- R2 "consumer expectation" and R3 departs from intended design
design- R2 consumer expectation and majority risk utility (must show alternative design feasible in all JX)
warning- was the danger of the type that required a warning to the average consumer? was the wanring adequate?
warning need to prove D,B,C,PC, Harm
M/D- C and PC and H only
public duty doctrine (duty or immunity/)
Duty- nonfeasance only
1) did the city assume a voluntary duty?
2) the city knows their inaction could lead to harm
3) did injured party justifiable rely on this promise
4) (only in some JX) was there direct contact between P and city?
Frolic v. Detour test
1. Time and space of deviation
2. Length in time of deviation
3. Incidental to work
4. Employee's intent
5. Freedom employee permitted in performing duties
6. Type of work employee hired to do
Participation Liability
Non-delegable duties
1. Activities involving trespass or nuisance
2. Activities that create peculiar risk
3. Duty to maintain land and chattels
4. Where imposed by statute
5. Repossession of collateral
6. Medical malpractice
RIL In Strict products liability and which beach RIL is closer and why?
In SL- was the incident of teh kind that would not ordinarily occur without a defect? and Was the incident not solely caused by something other than a product defect at time of sale/distribution?
closer to the R3 breach test, no sole control element
excuses for neg per se?
5
1) incapable due to physical incapacity (not needed to be perm) or minority
2) did they reasonable try to comly?
3) was it safer for anyone not to?
4) statute too vague?
5) D did not have reason to know the facts of this circumstance gave rise to this statute
Custodial Factors
Trespass to Chattels
Special Relationship Categories
1. Common carriers and passengers
2. Innkeepers and guests
3. Those that open their land to the public
4. Landlords and tenants
5. Schools and their students
6. Custodian and those in their custody
7. Employees and Employees
8. Co-adventures
If none of the above, apply custodial factors
misuse in products liabulity
If its a foreseeable misuse then liability, if not foreseeable likely no liability
consent: types and definitions
actual: willingness, within the scope of time and nature, capable of giving consent, no mistake or duress
apparent: is actor reasonably believes the person is actually consenting
presumed: under social normals D has no reason to believe P would not have actually consented if asked
Criminal Conduct on land
- Specific Harm rule: No duty unless D is aware of specific imminent harm about to befall P
-Prior similar incident tests: The harm is only foreseeable if there were prior similar incidents on that property
-Totality of the circumstances test: If third-party criminal was foreseeable under the circumstances, then duty
Balance test: Balance the foreseeable harms verse the burden of preventing them (Learned Hand Formula)