Cruel Intentions
Battery v. Assault
Battery: an act which brings about harmful or offensive contact
Assault: an act which creates a reasonable apprehension of imminent (immediate) harmful or offensive contact (Apprehension must be reasonable; apparent ability is sufficient)
Causation: Exceptions to the but-for cause requirement
Multiple Sufficient Causes:
Plaintiff must demonstrate that each defendant acts alone would have been sufficient to cause the harm
Alternative liability:
When two or more people were negligent, but it’s unknown which one negligent act caused the injury
Burden of proof shifts to defendants
Market-share liability: apportioned according to % of risk created
Concert of Action: Acting in common design or conspiracy
What are the elements to Negligence? Bonus Points for the infamous 5th element.
• Defendant owed some duty to plaintiff
• There was a breach of that duty by the defendant
• The breach of duty by the defendant was the
• Actual cause, and
(Bonus) Proximate cause of the plaintiff’s injury
• The plaintiff suffered harm to their person or property
Joint and Several Liability & Several Liability
J & S: All defendants are responsible for all damages
(Plaintiff may collect fully from any one defendant)
SL: defendants are only responsible for their portion
How is Damage to Property Measured?
Cost of Repair
Diminution in Value
False Imprisonment Elements & Common Exception
False imprisonment: intent to confine P + P was conscious of confinement + P did not consent + without privilege.
Ex; Physical barriers, force, threats of force, coercion
Exception: Shopkeeper’s privilege: reasonable belief + manner + period of time
Negligent Infliction of Emotional Distress Rules
Plaintiff must be within the zone of danger and suffer real harm; There was a threat of physical impact; Plaintiff’s distress manifested itself in physical symptoms
Bystander exception; Bystander outside zone of danger can still recover if:
• Plaintiff and person injured are closely related
• Plaintiff was present at the scene of the injury
• Plaintiff immediately observed or perceived the event
Prenatal Injuries
Wrongful life, Wrongful birth, Wrongful pregnancy
Who is suing & why?
Bonus Points: Is this proximate cause? Why?
• Wrongful life: (action by child) (rare)
• Wrongful birth: failure to diagnose defect (Act by parent) (Parent’s action for loss of the option to terminate pregnancy)
• Wrongful pregnancy: failure to perform contraceptive procedure (Person who got the procedure)
Bonus: it is proximate cause because it ALWAYS FORESEEABLE
Respondeat Superior Rules With Examples!
“Going and coming” rule: commute (not in scope)
“Frolic of his own” (Major deviation)(going to beach) (not in scope)
Exception (special errand)(milk for starbucks)(in scope)
Minor detour/deviation (stopping to get a coffee) (in scope)
Employer liable for torts by employees (not independent contractors) acting in the scope of their employment.
Compensatory Damages
Compensatory damages: redressing the harm suffered
Special: medical expenses, lost earnings, etc. General: pain and suffering, etc.
Name the Nuisances! Two Intentional (& common relief)
Bonus: Negligent Nuisance
Nuisance: intentional interference with use of land
• Private: offensive, inconvenient, or annoying to average community member
• Public: unreasonably interferes with health, safety, or property of community
Remedies: injunctive relief
Negligence Bonus: Attractive Nuisance: specific to risk of harm to children • Artificial + hidden + serious
Negligence per se & Res ipsa loquitur
Rules + what does a Plaintiff have to prove?
• Negligence per se: violation of statute without excuse
- Statute designed to protect from this type of harm
- Statute designed to protect this type of victim
• Res ipsa loquitur: the thing speaks for itself
- Event would not normally occur absent someone’s negligence
- What caused the injury was in the defendant’s exclusive control
- Not applicable with multiple defendants (exclusive control)
Proximate Cause Test & Rules
A cause which, in a direct sequence unbroken by any superseding cause, produced the harm
Foreseeability: was the injury a reasonably foreseeable consequence of the defendant’s negligence?
Directness: did anything break the chain of causation between defendant’s act and plaintiff’s injury?
Substantial factor: was the defendant’s act a substantial factor leading to the harm suffered?
Scope of risk: was the injury a result of the type of risk that made the defendant’s act negligent?
Assumption of risk(s)
1. Express: plaintiff signed a waiver or verbal
2. Primary implied: for certain inherently dangerous activities
3. Secondary implied: actual knowledge + appreciation of the danger
Punitive v. Nominal Damages
• Punitive damages: for wanton/willful, malicious acts, or showing reckless disregard for the safety/lives of others, or fraud or oppression.
• Nominal damages: a violation of one’s interests (e.g. privacy or dignity), but no actual injury to person, or property, or to compensable financial interests; available only for intentional torts because “harm” is required for negligence
Defenses to Intentional Torts
Consent: defendant not liable if plaintiff consented to the act
(1) By mistake: valid unless defendant caused or took advantage of it
(2) By fraud or duress: not a defense
(3) Implied consent: what a reasonable person would infer (e.g., sports)
(4) Capacity required: incompetents, intoxicated persons, young children
Self-defense: reasonable belief that a person is under attack
(1) May use such force as reasonably necessary to protect against injury
(2) Apparent necessity is sufficient if the belief is reasonable
(3) “Stand your ground” v. safe retreat
(4) Defense of others: same standard
Liability for Animals
Wild animals: always strictly liable
Trespassing animals: liable for reasonably foreseeable harm
Domesticated animals: liable if the owner knew or should have known of the particular animal’s dangerous propensities
Palsgraf!
Case Brief + Holding + Minority
Bonus Point: Names of Justices
Holding (Cardozo): Duty owed to foreseeable plaintiffs/ there is no liability for harm to an unforeseeable plaintiff.
Minority (Andrews): Duty owed to everyone!
Please explain Contributory Negligence & Comparative Negligence
Contributory negligence: only in AL, DC, MD, NC, and VA • Complete bar to recovery
Comparative negligence: “partial” (49/50%) and “pure”
Pure: Reduces plaintiff’s recovery by plaintiff’s share of negligence
• In 49/50% jurisdictions, may bar recovery
All Products Liability Defects
Design defect: plaintiff must show a reasonable alternative
• Consumer expectation test: what a reasonable consumer would think • Risk-benefit test: alternative test, only if the risk is too esoteric
Warning defect: no clear warning of a hidden danger to consumers
No liability for misuse beyond reasonably foreseeable uses
Single v. Dual Intent
Bonus: What is Idaho?
Single intent jurisdiction (Idaho); intent to make contact...that turns out to be offensive
Dual intent jurisdiction; is the intent to make contact and that it be harmful or offensive.
Factors For Abnormally Dangerous Activities & Rule
Factors
Existence of high Degree of risk of some harm to person, land, or property
Likelihood that the Harm that results from it will be great
Inability to Eliminate the risk by exercise of reasonable care
Extent to which activity is Common
Inappropriateness where activity takes place
Value to community
Rule:
The activity must create a serious risk of foreseeable harm even when reasonable care is exercised
The activity is not a matter of common usage in the community
Exceptions to reasonable person standard & failed exceptions
Exceptions
•1. Professionals: Reasonable member of the profession (goes to locality rules)
2. Children: AIMEE Age, Intelligence, Maturity, Education, Experience
3. Physical disability
No exception:
1. Sudden Emergency
2. Dangerous Substance
3. Mental Disability
Invitees, Licensees, & Trespasser Duties
• Invitees: for a business purpose, or land held open to the public; Standard: reasonable care + duty to warn, make safe, and inspect
• Licensees: not for landowner’s benefit (social guest); Standard: duty to warn or make safe, if danger is known
• Trespassers: entry without permission or privilege
Undiscovered trespassers: there is a duty to refrain from wanton or willful conduct toward undiscovered trespassers.
Discovered: duty to warn or make safe of artificial conditions, that involve a risk of death or serious injury, which the trespasser is unlikely to discover
Affirmative Duties
General rule: no duty to act (i.e., no duty to rescue)
Assumption of duty by acting
• Reasonable care
• “Good Samaritan” laws: some states exempt licensed doctors, nurses, etc. who voluntarily render emergency treatment from ordinary negligence
• Still liable for recklessness
• Special relationships and affirmative duties
• Parent-child, common carriers, places of public accommodation