Intentional Torts (∆ is liable for X if:)Battery: ∆ (1)acted (2)intending to (3)cause (4)harmful or offensive contact [1-(direct or indirect) 2-(intent v. dual intent, substantially certain) 4-(offensive to reasonable sense of personal dignity, eggshell doctrine, contact to things closely attached to body)]Assault: ∆ (1)acts (2)intending to (3)cause harmful or offensive contact or imminent apprehension of it and (4) causes imminent apprehension and (4)∏ reasonably believes is a present ability to inflict it . [2-(intent or S/C), 3-(be careful of indirect here, ∏ must be aware) 4-(apprehension of imminent not future contact)] Go for assault on every battery. Intent xfers, need only show ∏ was aware of imminent battery. FI: ∆ (1)acts with (2)intent to confine, which (3)results in confinement and (4)∏ is conscious of confinement or harmed by it [1-(direct or indirect), 2-(confine within boundaries fixed by actor), 4-(harm is dignitary, so conscious of confinement suffices) Shopkeeper Defense-(reasonable detain for reasonable time upon reasonable belief —mistake ok) susceptible to implied consent]IIED: ∆, by (1)extreme or outrageous conduct, (2)intentionally or recklessly (3)causes (4)severe emotional distress [1-(transcends bounds of decency, objective std. subject to some circumstances (racial slur in special relationship was enough, no eggshell, but knowledge of fragile state may apportion extreme/outrageous), 2-(reasonably certain works, intent may xfer to ∏ family if present & ∆ knows of presence), 4-(w/o bodily harm, courts more careful - tends to look for history of treatment not Jones)]INTENT: Intent xfers between all to all, except IIED, eggshell all but IIED, intent vs. Insurance or Workers Comp: [TX Ass&Bat: intend, know, reckless +harm]Defenses to intentional torts (Most affirmative with preponderance burden, but consent sometimes attack against prima facie, instead of affirmative)Implied Consent - conduct reasonably understood as consent (circumstances relevant, reasonably understood as manifested. view from ∆)Medical/Informed Consent - ∏ must show (1)∆ failed to inform adequately of material risk before securing consent (2)being informed would have not caused no to consent (3)uninformed risks manifested due to unconsented treatmentEmergency Action w/o consent: Valid defense if: emergency makes it (1)necessary or apparently necessary, in order to (2)prevent harm, to (3)act before opp. to get consent and actor has (4)no reason to believe that one unable to consent would not consent if had opportunity. Scope of Consent: No more than consented to. EXCEPT: Medical -> internal: Dr. has implied consent for anything in area of orig. cut, when sound prof. judgement determines correct surg. procedure is to extend scope. valid as consentConsent in Custom [sports] - Consent to near all in game, either allowed or tolerated by rules - but so reckless beyond range of ordinary in sport - no consentConsent to Crim behavior - Some JX - Yes. Some JX: Cannot consent to criminal. Texas: Cannot consent to criminal (to avoid liability)Duress kills consent: Duress and special relationship considerations. Fraud kills consent: Fraud as to act. inducement ok [i.e. Iʼm rich, sleep with me - sex is act - consented to sex. But fake Dr. get consent for exam. act is intercourse. consent by fraud] Lack of Capacity kills consent [Intox, diminished mental ability, minors]Defensive Force (self or others) [no deadly force]: Actor can use (1)reasonable force (2)not intended or likely to cause dearth or serious bodily harm to defend himself or others against unpriv. harmful or offensive contact or other bodily harm when he reasonably believes other is about to intentionally inflict on him. No duty to retreat. [deadly force] same statement but, to use deadly force must reasonably believe other about to inflict intentional contact that will put in peril of death or serious bodily injury which can safely be prevented only by immediate use of such force. [no retreat in dwelling place-unless also place of others][duty to retreat if accurate or reasonable belief that, with complete safety, retreat or relinquish exercise of right or priv. (other than as above)][force not in excess relative to attack]JX SPLIT of Defense of Others Majority: if defense of other is mistaken belief, defense not avail. Minority: Mistaken belief re: need to intervene is availDefense of Property: Privilege to use force necessary for protection of property, must request desist or believe request will be useless or substantial harm done before can be made (force to cause death or serious bodily harm never ok) ((spring gun)Necessity: (in saving life or property) justifies entry onto anotherʼs property. Where such necessity taken, actor likely liable for actual damages for use Parental: Priv. by parents to use reasonable force. Some JX extend to teachers and schools officialsLegal Auth: Public officials have priv to detain, contact, trespass w/ limits: police restrained to detain by reasonableness(4th amnd), harm to prop may be subject to comp under takings clause

Cause in Fact / Actual Causation general - act can cause specific - did cause harm

Proving General Causation (Scientific)Daubert (no longer frye, where evid. must be generally accepted by experts) - admitted when: evid. based on testable theory or technique, which has undergone peer review, technique - has known error rate and standards of control?, underlying science generally accepted) - General is threshold, must still prove specificProving Specific Causation Housley: good health->accident then bad health. if reasonably possible causal connection between accident and injury. “actual causation met”Probabilities: Not enough to show CIFCircumstantial may be enough w/ general

Imputing CIF (Liability)

Overdetermined(A&B Cause)

2 or more indeterm, neg. acts (i.e. delete one harm

same) - indep, actual cause - each sufficient to

causeTHEN Joint and Several Liability (check compare/

contrib neg)

Underdetermined(A or B, not both cause)2 nearly simultaneous,

similar neg. causal. Indep committed, only 1 of 2

caused, but nature of ∆s acts prevents ∏ from

knowing which caused:Burden Shifts to ∆s(Summers v. Tice)

Market Share LiabilityIf ∏ cannot prove which of three or more “persons” caused the injury but that all could have; court require each ∆ to pay percentage based on their market share at the time of the injury. (Pharma and few other uses) (Sindell)Market def (US, state, or area)

Vicarious Liability

Respondeat SuperiorMaster/Servant

“Masters held vicariously liable for torts of their servants committed while in scope of employment”

M/S relationship - consensual, where one performs services for another and master controls/right to control conduct of servant. (Need not be paid. )Generally no indep contractorsIndep or Emp: distinct op or biz, skill req. in part. operation, time employed, method of payment and by time or by jobScope of Emp test (factors): act commonly done by servants of sort in part. case, previous M/S relationship, if master has reason to expect action, similarity in quality of act to authorized act, belief in M/S relationship?Master liable for indep. K when - negligent in choosing, training or supervising, some duty out of relation, work specifically, pecularly, or inherently dangerous

Joint EnterpriseTwo or more join together in enterprise, which each has equal right to control

others conduct.Negligent conduct of one is imputed to all othersElements:agreement (express or implied to do enterprise)manifest intent to be associated as joinjoint interest, by contributiondegree of joint proprietorshipprovisions for sharing profits and lossesGenerally: formal K establishes biz (sharing of profits and mutual control)

BUT: Injured ∏ from car crash - ∏ trying to hold passengers responsible for driverʼs neg. Defense use also: ∆ use to establish contrib. neg. against ∏ʼs passengers

Family Purpose: Many states - Judicially developed special rule, which under certain circumstances, imposes vicarious liability upon automobile owners for harm caused by persons to whom the cars have been loaned or made available

Strict LiabilityLook for when: Animals, dangerous substance or instrument, or something escaping form landStrictly Liable when: ∆ʼs conduct caused the harm Policy: Who should bear expense of the injury?- Or, what company in best position to assess risk and determine insurance need- Essentially negligence, where duty breached upon causing harm. - Distributive JusticeAnimals: Common law: those that possess, confine, manage animals capable of harm to persons/property held strictly liable when animals escape and cause harm- 2-3 Categories = Wild Animals, Livestock, Domestic (dog, cat, housepets) - domestic maybe not strict unless

owner knew of dangerous propensities of animal- Rstmnt 3d is strict liability on wild animals and abnormally dangerous animals- Livestock and domestic prob. not strict liability w/o knowledge that abnormally dangerous- Must still cause harm (tripping on lion not strict liability alone)Escape from Land - If bring something on land, strict liability to keep it contained (i.e. water reservoir)- UNLESS done out of necessity or contemplated in original grant- Cases: Strict liability yes - built reservoir, broke, caused water damage off property. no - well site run-off

basin built, leaked onto other property with damage run-off basins necessity of TX oil bizAbnormally Dangerous Activity- ∆ does abnormally dangerous activity strictly liable for all harm resulting to kind of harm that makes activity

abnormally dangerous (gas truck crashes - strict liability if explosion, not if damage only from truck impact)- Factors to determine “abnormally dangerous” -

- Existence of high degree of risk - of some harm to person, land, chattels- likelihood that harm that results from it will be great- inability to eliminate risk by reasonable care- extent to which activity is not a matter of common usage- inappropriateness of activity to place it is being done at- extent to which value to community is outweighed by dangerous attributes

- Not applicable if but-for ∏ʼs abnormally sensitive character there would be no harm- Rstmnt 3d: abnormally dangerous = strict liability for harm resulting from activity

- abnormally dangerous is: activity creating foreseeable & highly significant risk of harm even under reasonable care AND activity is not one of common usage

Theories of Tort Purpose and PolicyCorrective - one who wrongfull injures another must make them wholeInstrumental - Incentives to act carefully in futureLaw and Econ - about reducing cost of accidents efficientlySocial Justice - Public policy / Social control - police conduct of othersDistributive Justice - Aim to restore individuals that which they are entitledEnterprise liability - accident cost should be internalized by activity and distributed among participants in itPragmatism - Tort law is product of each situation - No robots on bench, personalities matterCritical Theorists - tort law dominated by [feminist - gender roles & power] [race - racial dynamics and power]

Reasonable PersonGenerally, must conform to that of a reasonable person under the circumstances (composite of communityʼs judgement)Circumstances Considered:Physical (ie blind) - yes vs. mental (low iq) - no- but if mental illness sudden w/ no warning - likelyEmergencies - yes (conform to act as reasonable would under emergencyKnowledge & Skill - If so possessed beyond most others, then are circumstancesKids - <5 - no negligence, >5 then act as reasonably careful kid of same age, intelligence, experience: BUT when child in dangerous activity chara. taken by adults, held to adult standardill rule - >14 - rebuttable presump. of adult, 7-14 - presump of unable to meet adult std., under 7 - no negligence

DutyPossessors of LandDuty re:Land (Invitee/Licensee/trespasser most->least)I. Invitee (Pub invitee- member of public invited to enter for purp. for which land is open biz invitee - invited to enter/remain purp. direct/indirect connected w/ biz dealings with possessor)

A. liability for condition that caused physical harm if:1. knows or by reasonable care would discover condition and that it involves unreasonable risk2.should expect invitee not discover or realize danger or fail to protect themselves3.and fails exercise reasonable care to protect

II. Licensee (consent to be on property)A. liability for condition that caused physical harm if:

1. knows or reason to know (reasonable person can infer) of condition and should realize unreasonable risk to licensee, and should expect they not discover or realize2. fails to exercise reasonable care make condition safe or fail to warn of condition and risk3. licensee not know or have reason to know of condition and risk

III. Trespasser (no priv. to enter or remain)A. refrain from wanton and willful (no duty to unknown trespasser)B. Constant trespasser (artificial conditions only)

1. liability for bodily harm from artificial condition if (1)poss. created or maintains (2)to his knowledge likely to cause death or s.b.h. to tress. and (3) such a nature reason to believe tress. not discover it. AND possessor failed to exercise reasonable care to warn of condition and risk

C. Known Trespasser (artificial condition which involves risk of death or s.b.h only)1. liability for s.b.h. from artificial condition if (1)knows or reason to know of presence in dangerous proximity to condition, and condition of such nature he reason to believe tres. not discover or realize risk

IV.Attractive Nuisance: liable for injury to trespassing kids (JX: Any v. under 14.. some age diff)A. know or reason to know kids trespass, condition know or reason to know unreasonable risk, kids do not discover risk or realize risk (because of age), utility and burden slight v. risk, and possessor fails to exercise reasonable care to eliminate danger or protect kids from

" Nuances

Nuances to Possessor dutyFirefighter rule - licensee, may bar recovery if in official capacityRecreational use - allowing public use -> partially immunized form liabilityDuty to Off-prop (urban - natural cond. liable, rural - no_Lessor/Lessee - Generally no - but if warr. of habit, hidden dangers known to L but not T, lease for public use, common areas (stairwells,etc), negligent repairs

Special relationships that up dutyCommon Carrier - protect against unreasonable harm and give first aid after know or reason to know ill or injured and to care until cared by others (Innkeeper)Assumption of duty - required by law or voluntarily takes custody under circumstances such as to deprive of normal opp. for protection under similar dutyMaster/Servant, Fam., Store/Customer, hotel/guest, school/pupil, Jailor/PrisonerReliance creates duty - if practice known, educated reliance upon, any unreasonable practice or abandonment w/o notice violates dutyDuty to rescue - no general duty, but act w/ due care if undertaken (deters others from rescue)Duty when you cause harm - If you cause harm, duty to assist (liable as to this duty only if/for injures directly result from failure of this duty)Duty to Warn others - Tarasoff - Dr. duty to warn 3rd about threats - dr. held to reasonable similar professional under similar circumstancesStatutorily Imposed Duty

Limitations of duty Despite clearly foreseeable harm, duty lowered where:Guest Statutes (lowered duty of operators of motor vehicles to passengers)No duty to rescue or prevent harm (where no relationship exists)Minimized duty to prevent purely economic harmMinimized duty to prevent emotional distressMinimized duty to prevent harm to fetusActions of govt. officials in their official capacity lower duty to themLowered duty of family member to each otherLowered duty of on-duty police or fire against negligent persons

Breach Failure to act according to Reasonable standard

B<PL TestBurden < Prob of Injury x gravity of Loss (injury)

If B<PL, then there is a duty to take on the burden, failing to do so is a breach of duty

Negligence Per SeViolation of statute serves to show duty/breach (subject to cause/harm findings)

Ask 2 questions(1)Statute designed to protect against type of accident that actorʼs

conduct caused?(2)Was the accident victim within class of persons statute designed

to protectJX on Neg. Per Se: Majority - Is negligence per say (as matter of law)Minority - Evidence of negligence (Jury decides)Small Minority - rebuttable presumption of negligence (prima facie)May not apply where: vague or amorphous - OSHA reg - dry floors “so far as possible”Disprop. liability - i.e. reqʼing person to report child abuseLicensing Statutes - Failure to be licensed not usually neg. per se: However, will be held to standard of care of what you held self out to beNote: Statute giving private right of action

CustomBreach of duty is shown if there is a customary practice, and it was ignoredNot necessarily conclusive but: If proof of custom and it was ignored, and departure was prox. cause of accident, may establish liability. Adhering to custom is not necessarily enoughCustom must have been current when act occurredPolicy may trump customMedical Profs: Custom less important. More of foreseeability i.e. glacoma test case. Think defensive medicince

Res Ipsa Loquitor (the thing speaks for itself)Accident alone is prima facie for duty/breach - show cause/carmTrad: Fact finder may draw permissible inferences of neg. from circum. when (1)ordinarily does not happen (2)under exclusive control of ∆-not always used, and (3)circum. not caused or contributed to by any act or neglect by injured party. Most states - creates enough evid. to get to jury(Third Rstmt Rule: Fact finder may infer that ∆ has been negligent when accident causing ∏ʼs physical harm is a type of accident that ordinarily happens as a result of the negligence of a class of actors of which the ∆ is a relevant member and )Ybarra - burden shifting. Someone in room was negligent, every instrument in control of∆s. Distributive justice. However, Res ipsa only when ∏ canʼt know or doesnʼt have access to facts. If ∆ does not maintain a very high level of exclusive control, res ipsa less likely

Foreseeability - duty or proximate cause? Palsgraf - The risk reasonably perceived defines the duty owed.

Prox cause care about direct and foreseeable harm- Was harm direct result of negligence?- Was harm foreseeable? (Was ∏ foreseeable?)- Negligence must CAUSE the harm. TX Cause Std - substantial factorForeseeability (Varying Standards - Palsgraf most common

Liability No harm foreseen Exact harm foreseen Causal connection ! -----|---------------------|----------------|------------ "Foreseeable to harm Some harm foreseeable General type of harm (Even a very small amount) harm foreseen

Polemis Palsgraff (Cardozo) Wagon Mound II Wagon Mound I ! Restatement 2d Palsgraff – Andrews dissent

Foreseeability Factors -Palsgraf-Cardozo foresee of harm, degree certainty ∏ would be injured, causal proximity from act to injury, moral blame of ∆ʼs conduct, policy prevent future harm, burden to ∆ and community to impose duty, availability, cost, prevalence of insurance for risk. Foreseeability - Andrews Dissent - If ∆ʼs conduct is (1)substantial factor in bringing harm to another, that ∆ neither (2)did//should have foreseen extent of harm or manner it occured does not prevent liability. But not legal cause if, ((1) looking back from harm, it appears (2)highly extraordinary that should have brought about the harm.Lost Chance Doctrine - Applies where ∆ is dying or already diminished chance of survival. Reduction or elimination of ∏ʼs chance of better outcome, ∆ liable for that loss (“the lost chance”) - trad. 50% better of living - JX, now: ∏ can recover either (1)loss of substantial chance, (2)increased risk (3) “pure chance or proportionality, where ∏ recover on showing nexus btwn failure to diagnose pre-existing and lost chance to recover to reasonable degree of certainty. Maj/TX: “more likely that not cause” Min: trad. - 51% ruleRescuers generally foreseeable (reasonable act under circ. / similar manner of rescue) - if this, rescuer not contrib. negligent. Breaking Causal Chain: - intervening cause complicates - is a superseding cause if breaks chainForeseeability still measuring stick. Rescuers, med. negligence (not gross), ambulance acc. all foreseeable. Criminal Conduct generally not foreseeable - but special relationships or prior notice changeCourt limiting liability on unforeseen harm - foreseeability is P/C issue. If harm foresee but no liability - duty issue.

Prox. Cause

Negligence and foreseeability, but no liability (Limitations of foreseeability)

Negligent Infliction of Emotional Distress - Prox. cause limited by different tests:(1)Impact Zone Rule - No duty to prevent emotional harm, needed impact - Found condom, stom. pain, faint now inclusive under broader view of test - Minority JX(2)Zone of Danger - Modification of (1). must be in zone of danger of neg. act (physical harm close)(3)By-Stander Liability (Two Tests - Dillon (Maj JX) - factors, La Chusa - elements, Dillon - Balancing: Is ∏ near scene of accident, did shock result from direct emotional impact (sensory and contemporary observance, where ∏ and V closely related La Chusa - Elements (1)closely related, (2)present at scene at time and is aware of inj (3)suffers serious emotional disturbance(4)Direct Victim - ∆ owes direct duty of care - often where ∆ communicating with family re: injured Used in negligent handling of corpses, or any where there is special relationshipNo Mental Anguish cause of action in TX, may get awards based on, but canʼt bring aloneLoss of Consortium - usually wrongful death. (wife & baby) Compensates spouse for loss or deprivation of companionship/partnership. Non-economic damages. Not available if not married - Not available for child/parent. Prenatal Harm: trad rule - first breath, new rule: viable, wrongful death statute (TX use)Wrongful birth/life (w-full birth action by parents, w-full action by kids) - only awards special damages, not general - will compensate for diff. between normal life and life got - not between life and no life. (i.e. if w/ special needs - compensation is for those needs, not for the birth/life itself). Purely Consequential Economic Loss - when acting negligently - is pure economic loss foreseeable? Trad. rule for recovery (TX JX) - no recovery for pure economic loss w/o physical injury or prop. damageModern: Recovery in some instances (i.e. oil spill in bay (distributive theory award), special relationship, People express: reasonable measure to avoid risk to particularly foreseeable identifiable class of ∏s whom ∆ knows or reason to know likely to suffer such damages from conduct

Affirmative Defense to Negligence

Contributory Negligence - ∏ totally barred from recovery, even if ∏ʼs negligence far less than ∆ʼs. (even 1% at fault)- However, ∏ʼs negligence must be actual and proximate contrib. cause of ∏ʼs harm for claim to be barred or reduced- Contrib not a bar when ∆ʼs actions are = {intentional, reckless or grossly negligent, last clear chance applies, ∏ too remote or not PC}- Assumption of Risk - implied assumption of risk treated same as evaluating ∏ʼs negligence vs. ∆ʼs. - Last Clear Chance - Allows liability despite contrib negligence.

- If accident victim by own negligence placed himself in danger of injury at hands of other when he is unable to prevent. - AND other knows or should know of victims peril in time to avoid injury and fairs to exercise ordinary reasonable care, then other is

guilty of actionable negligence and Vʼs actions will not bar recovery under contrib. negligence defense.Comparative Negligence - Factors: (1)Nature of conduct of each party at fault, (2) extent of causal relationship btwn conduct & damages- Pure Comparative - allows damaged party to recover even if 99% at fault; Damages = 100% — ∏ʻs fault (Some JX)- Modified Comparative Fault - bar from recovery if ∏ʼs comparative fault is either 50% or 51% - by JX

- If not barred, ∏ʼs recovery reduced by degree of fault- Nuances

- No Last Clear Chance Avail- Joint and Severally Liable usually abrogated (though Uniform Comp. Fault Act keeps)- Comparative no defense in intentional or reckless conduct by ∆- If multiple ∆ʼs, in modified comp. JX, ∆ʼs combined fault must be more than ∏ʼs (and not individ. more) to allow recovery- Comparative fault complicates determination (defense) of superseding causes. Jury can allocate fault and consider effect of

superseding causes- Crashworthiness and Product Liabilities - how comparative fault measured, if at all, when defect enhances injury in crash- Criminal conduct of ∏ may act as complete bar- If one of many ∆ʼs is immune but partially at fault, his share apportioned to other ∆s equally (JX specific nuances, as well)

Assumption of Risk (AOR)= (a)knowledge, (b) appreciation, (c) voluntary exposure of risk No AOR defense for intentional torts- Express AOR - express, explicit agreement to risk (waivers, releases

- Exculpatory Agreements disfavored. Alone, not violate public P. But if agreement includes AOR for intentional tort, gross neg., negligence to minors, or involves hospitals - may be violate public policy as matter of law and not valid.

- Agreement must (1)Clearly spell out intention of parties (2)nothing in social relationship between parties militating against enforcement, and (3)not against public policy

- Negligence which caused injury must be reasonably related to object or purpose for which release given- Public Policy disfavors unequal bargaining power (housing, blanket waivers, medical consent(?))

- Implied AOR - (Primary & Secondary) - Primary - assumption of risks not created by negligence; engaging in activity that has known and commonly accepted risks

- no liability to ∆ when ∏ chooses to engage in activity with inherent and commonly accepted risks- i.e. Getting hit with baseball at ballpark. - Affirmative Defense or Denial of Duty? If impliedly assuming known risk, argue abrogation of duty. (Strategic as to burden too)

- Secondary - Assumption of existing negligently created risk May be avail. in comp. or contrib. JX - ∏, aware of risk created by ∆ʼs negligence, continues voluntarily to encounter it (ice skating case - too slick, kept skating)- Two types: Pure/strict - Assumption is reasonable (running into burning house for kid) Qualified - not reasonable (same but for hat)- Pure strict is AOR but not Contrib neg. / Qualified is AOR and Contrib. neg.- Pure/Strict - no fault, JX may still bar recovery / Qualified - fault and may be barred or proportionally reduced

Immunity - (Exam Alert) Immunity also likely not available in intentional tortsGovt Immunity - If decision discretionary, better chance of immunity, FTCA - federal tort immunity only for “discretionary acts”, state likely similar immunity to federal, municipality likely not as broad as (i.e. police failed to protect person from abusive friend - liability)Charitable Immunity - Very few states (NJ, for one), theory - protecting financial assets of charities, AOR, also avoiding hurts to helpFamily Immunity - Not avail in most JX, but one spouseʼs behavior to another must be outrageous. Par. Discipline and Discretion is usually immune. (i.e. choosing food/housing/medical services)

More Affirmative Defenses to NegligenceAvoidable Consequences - After ∏ injured, some damages may be barred by ∏ failing to take reasonable steps to avoid aggravation. Some states only to conduct after tort, others allow application to ∏ʼs pre-injury avoidance measures such as seatbelt use (JX)Premises Liability - Duty to secure against crime Old rule: duty again imminent harm from violent, New rule: foreseeability vs. burdenStatutes of Limitation and Repose - IF EXAM HAS DATES, check SOL/R- SOL for negligence 2-3 years, depending on JX- Discovery rule - extends SOL when negligence first discovered (not nec. when harm discovered)- Statute of Repose - does not allow discovery rule (SOL begins on negligent act)

- Usually for construction of buildings, I.e. if industries allow to use discovery rule may be excess. liab.- Collateral Source Rule - Canʼt look at additional sources of compensation (why should ∆ benefit from

employerʼs ability to give health insurance)