Intentional Torts
What are the elements of false imprisonment? Give an example of each.
(a) he acts intending (intent or substantial certainty) to confine the other or a third person within boundaries fixed by the actor. Ex. Gerry locks the door to the store with Mary inside.
(b) his act directly or indirectly results in such a confinement of the other. Ex. Mary is locked inside the store.
(c) And, the other is conscious of the confinement or is harmed by it. Ex. Mary sees Gerald lock the door.
What is the commonly used standard for breach? Explain and give an example.
Learned Hand Formula:
(1) Probability (P)
(2) Gravity of the resulting injury (L)
(3) Burden of adequate precautions (B)
-B < PL = negligent
-B > PL = not negligent
Ex. A town floods about 2 times each year because of blocked drainage systems. Damages that could be caused are $80,000 a year and maintenance to avoid the blockage costs $45,000 and must be done twice a year. $80,000 < $45,000 x 2 = not negligent.
Jared's goat escaped from its reasonably secure pen and wound up on the highway where, Lenny, a truck driver, hit the goat and crashed. Is Jared liable for Lenny's injuries?
No b/c although an owner is liable for its animal intruding upon the land of another, the exception to strict liability is when the animal intrudes on a highway.
What apportionment doctrine(s) are used when there is only one defendant? Multiple?
Only 1 = comparative or contributory
Multiple = Joint and several, or several
What are the elements of iied and what constitutes extreme and outrageous conduct?
Elements:
(1) extreme and outrageous conduct
-Repeated or carried out over a period of time
-An abuse of power by a person with some authority over the plaintiff OR
-Directed at a person known to be especially vulnerable
(2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress
(3) a causal connection between the conduct and injury
(4) severe emotional distress
Jessica works for Brian. Brian asked Jessica to sleep with him. Jessica said no and Brian told her that if she refuses, he would fire her. Jessica, fearful of loosing her job, agrees to sleep with him and does. Later, Jessica wishes to sue Brian. Does Jessica have an actionable claim? Why or why not? If yes, what claim can she allege?
Yes b/c Jessica expressed her unwillingness. Her consent was obtained under duress. Jessica can sue for battery and Brian cannot assert the defense of consent.
What types of harm satisfies the actual harm requirement? What types don't? Give an example of each.
Count: human body or property (Ex. broken leg)
Don't count: pure emotional or economic damages, or an increase in harm (Ex. inhaling smoke from a neighbors cigarette)
What is the difference between direct and vicarious liability? Provide an example for each.
Direct = An employee causes harm to a third party & the employer was negligent in selecting, training, retaining, supervising, or otherwise controlling the agent. Ex. Johnny hires to Steve at the paper factory knowing Steve without doing a background check and the factory burns down. If he had, Johnny would've noticed Steven had been previously convicted of arson.
Vicarious = An employer is subject to liability for torts committed by employees while acting within the scope of employment. Delivery driver runs a red light and hits pedestrian.
What is comparative fault? What is the difference between pure and modified comparative fault?
Comparative = P's recovery is discounted by her % fault
Pure = P can recover if another party is at all liable
Modified = P cannot be more than X% liable in order to recover (normally 50% or 51%)
What constitutes a special relationship where one owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship? What relationship does not give rise to an affirmative duty?
Does = A common carrier with its passengers, an innkeeper with its guests, a business or other possessor of land that holds its premises open to the public with those who are lawfully on the premises, an employer with its employees who are in imminent danger or injured and thereby helpless, a school with its students, a landlord with its tenants, and a custodian with those in its custody.
Doesn't = Physician-patient relationship.
Richard, sick and tired of teenagers breaking into his vacation home when he's not there, sets up a spring trap where when someone opens the front door, a can of paint hits the trespasser, home alone style. He put up a sign, warning trespassers to not trespass on his property or else they can be severely injured. Jack, a teenager, seeing the sign, still decides to trespass. Upon opening the door, he is hit in the chest with a paint can. Normally, it would cause a simple bruise but Jack has abnormally soft bones, so the impact caused all his ribs to break. This led to various expensive surgeries. Is Richards' defense privileged? Why or why not? If not, what damages does Richard owe to Jack?
Richard's action is not privileged. Although Jack is a trespasser, because Jack trespassed onto Richard's vacation house that he was currently not using, there was no imminent threat of death or serious injury. The trap was an unreasonable use of force and not privileged. The trap, although to a normal person would not have been so harmful, because of the eggshell rule, Richard had to take the plaintiff as he was and so he is liable for his medical bills.
What harms fall within the scope of risk and what is the difference between proximate cause and duty?
Harms: (a) for types of injuries foreseeably risked by their negligence & (b) to classes of persons foreseeably risked by their negligence.
Duty: Would a reasonable person have recognized (foreseen) a risk of harm and sought to avoid it?
Proximate cause: Should D have foreseen a harm of the same or general kind that occurred to a class of persons that included P?
Kris Co. sells portable burners. In the instructions manual includes a warning to not place the burner on top of flammable products like kitchen cloths while on or else it will overheat and explode. However, the warning was on the fifth page of the manual under the "Machine Maintenance" section. Jannet buys the burner, places it on top of kitchen cloth and it explodes in her faces, causing deep gashes. Is the warning improper? Why? Does it matter if Jannet says she had not read the manual and never does?
The waring sign is improper because a fair-minded person could reasonably infer that a user would be induced to only scan the manual and not get the information about the kitchen cloths.
It does matter because, while the warning was improper, Jannet's action would fail because there was no proof of causation.
Hannah and Mike get into a car accident and a jury finds that Mike is 51% liable and Hannah is 49%. The damages are $100,000. What amount of recovery will Mike get under contributory fault? Pure comparative fault? Modified comparative fault?
Contributory = 0 b/c barred
Pure = $49,000
Modified = 0 b/c barred
What are the differences between invitees, licenses, and trespassers? Discuss what duty is owed to each from both a traditional and modern approach.
Traditional:
Invitee = enters at invitation to a buis in furtherance of business or land open to the public (provide reasonably safe premisses (take active affirmative steps) and ordinary care of the RP)
Licensee = enters with permission but not in furtherance of business (social guests) (must warn of hidden dangers about which possessor knows or should have known)
Trespasser = enters without permission (no duty of care owed to adults but yes duty of reasonable care owed to minors not to maintain an attractive nuisance (invitee))
Modern
Duty of reasonable care to both invitees and licensees and retain the limited-duty-to trespassers rule.
What is the difference between conversion and trespass to chattel? Explain and give an example.
Conversion is an intentional exercise of dominion or control over a chattel that does not require actual harm of the chattel. This results in being required to pay its full value (forced sale). Ex. Mistakenly throwing your friends book in the fire when you thought it was yours.
Trespass to chattel is a temporary dispossession of a chattel that requires actual harm to the chattel. This results in being required to pay for its actual damages. Ex. Borrowing someone's watch without permission and dropping it, causing scratches.
What does the reason personal standard apply to and what does it take into account?
Applies to: Mental disability, intoxicated person, old age, low intelligence, children if engaged in dangerous/adult activity
Takes into account: physical disability, emergency, knowledge, experience or skill, children
What are the types of temporary deviations under scope of employment and under which one(s) is the employer liable?
Frolic = major departure from employee’s duties that is not within the scope of employment (employer not liable)
Detour = minor departure from employee’s duties that is still within the scope of employment (employer liable)
Reentry of employment = employee must have formulated an intent to act in furtherance of the employer’s business (employer liable)
Mary is injured by Thomas, Nancy and Pete. Mary's damages amount to $100,000. Mary is 5% liable, Thomas is 20%, Nancy is 35%, and Pete is 40%. Thomas is immune from payment. How much does Mary get from each under traditional contributory fault? Joint and Several? Several?
Contributory = 0 b/c recovery barred.
Joint and Several = $95,000 from Nancy and Pete
Several = $35,000 from Nancy and $40,000 from Pete.
What is the materiality standard and the medical (custom) care standard? What proof must P present that D is liable?
Materiality standard = Must disclose “significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure."
Medical (custom) care standard = Must disclose information that a reasonable medical practitioner would disclose
P must present expert witness testimony unless the negligence is obvious to a reasonable person.
Jane was walking with Thomas when her ex-boyfriend Kyle saw them. Jealous, Kyle picked up a rock and threw it at them, wanting to scare Jane but did not want to hit her. As the rock neared the couple, Thomas noticed it and ducked, while Jane remained blissfully unaware. Because Thomas ducked, the rock hit Mary, an innocent by-passer, in the head, causing a gash. Because of the pain, Mary dropped her very expensive phone, causing it to shatter. Mary had to pay to get it fixed. What actionable claims can each party bring against Kyle and what is their likelihood of success?
Jane = no actionable claim
Thomas = assault b/c of imminent apprehension
Mary = battery and trespass to chattel b/c of transferred intent
What are the three commonly used factual cause tests? Explain them, what damages can be recovered, and the standard of proof.
But for = But for D’s negligence, P’s harm would not have occurred. Recover only %. P must prove that D’s conduct was more likely than not a factual cause of the harm (preponderance of the evidence)
Substantial factor = Two or more causes concur to bring about an event. Full damages can be recovered. P must show that the increased risk was created by both D’s negligence and both were a substantial factor.
Loss of chance = Loss of opportunity injury in medical malpractice cases when D’s alleged negligence aggravates the P’s preexisting injury. Can recover only % of loss chance. P must prove the lost chance (any %) through preponderance (51%>).
What makes an alternative design reasonable?
That there (1) is a safer alternative design that (2) would have prevented or significantly reduced the risk of injury (3) without substantially impairing the product’s utility and (4) the safer alternative was both technologically & economically feasible.
Is recovery completely barred under assumption of risk? If no, when is recovery not barred and how is recovery apportioned?
Under express assumption, recovery is completely barred unless public policy or contractual rule void the release. Recovery is apportioned through comparative fault.
Under implied, depending on the jurisdiction, recovery can be completely barred or not (ex. For secondary implied, if P's choice is unreasonable, their recovery is reduced through comparative fault).
Jerry played soccer and his coach, Chris, would make him do drills without any safety equipment. 5 years after retiring, Jerry was experiencing debilitating headaches and went to the doctor. The doctor told him he had severe brain injuries caused by the drills. Jerry wishes to sue Chris. The statute of limitations for this injury is 2 years. Can Jerry sue Chris under a traditional statute of limitations jurisdiction? Can he under a discovery rule approach?
Jerry would be unable to recover under a traditional statute of limitations jurisdiction b/c the statute of limitations begins to run for the date of injury and it has been over 2 years.
Jerry would recover under discovery rule approach b/c its starts to run when the injury is discovered (known or should've known) and Jerry knows Chris' casual role in Jerry's injury.