Torts Outline Research Paper

|Intent |Recklessness |Negligence |Strict Liability | |R 3d § 1 |R 3d § 2 |R 3d § 3 |R3d § 20, Products Liability | |R 2d § 8A |R 2d § 500 |R 2d § 283 |R 2d §§ 402A, 519 | |Act with purpose of producing the|Acts with knowing indifference to a |Does not exercise |Engages in certain conduct that | |consequence or knowing that the |risk of harm that would be obvious to |reasonable care under all |causes harm. | |consequence is substantially |another in that situation; Acts with |the circumstances; | | |certain (constructive intent) to |deliberate disregard of a high |Creates an unreasonable |E.g. , Vicarious Liability, | |result |probability of harm |risk of harm. |Abnormally Dangerous Activities, | | | | |

Sale of Defective Products | 2. Battery 1. Rule • Restatement 2d Section 13 (Harmful) & Section 18 (Offensive) 2. Prima Facie Case • D Acts • Intending (Garratt, Section 8A, Section 20) to • Cause (Vosberg Rule #2, chapter 2) or the intentional apprehension that D will cause a • Harmful (Section 15) or Offensive (Section 19) • Contact with another p. 28-29 • Harmful or offensive contact results to another or a third person (transferred intent, p. 24) 3. Related Cases.

4. Other Information • Definition of Offensive – Offends a person’s dignity as defined by the time and place. Is the action against the social norm? The actor does not have to know the contact is offensive. • Instrumentality – An individual may be guilty of battery if an instrumentality of his causes harm to another. In this case, you must determine the individual’s intent in using that instrumentality. (Think snowmobile incident) • Mentally disabled people are commonly held liable for intentional torts even though intentional torts require subjective intent which they don’t meet.

3. Assault 1. Rule • Restatement 2d Section 21 2. Prima Facie Case • D Acts • Intending (Garratt, Section 8A) to • Cause (Vosberg Rule #2, chapter 2) or the intentional apprehension that D will cause a • Harmful (Section 15) or Offensive (Section 19) Contact • Imminent Apprehension ensues • The threat must be imminent and present. • The actor must have the ability to do so. • Ask yourself would a reasonable person have this fear? 3. Related Cases 4. Intentional Infliction of Emotional Distress 1. Rule • Section 46 in the Restatement 2d 2. Prima Facie Case.

• Extreme and outrageous conduct: so outrageous in character and extreme in degree as to go beyond all possible bounds of decency and regarded as atrocious and intolerable in a civilized community. (comment d) • Intentionally or recklessly: acts with the purpose of producing the consequence or knowing that the consequence is substantially certain to be result; OR knows of the risk created by the conduct or know facts that make the risk obvious to another in that situation and indifference to the risk. • Causes • Severe emotional distress: extreme, that is, no reasonable person should be expected to endure it.

• Transferred Intent: R. 2d Sect 46(2) – immediate family if present and emotional distress happens, and any other person if present AND bodily harm results from the emotional distress. 3. Related Cases 4. Other Information • Courts typically agree that this tort can be applicable in the first five instances: o 1) Future threats of serious bodily harm; 2) Debt Collection; 3) Constitutionally protect rights (Fisher w/o plate); 4) Dead bodies: Restatement Section 868 – Interference w/ dead body; 5) False reports of serious bodily harm (Wilkinson, telegraph cases); 6) Insulting language?

(Taylor, Logan) • If there is a relationship between the parties, if it occurs 2 or more times and you can establish a repeated pattern of conduct, and if you are aware of the person’s susceptibility to the conduct, then you can claim IIED. 5. False Imprisonment 1. Rule • Sections in the Restatement that apply here are 39, 40, 40A. 2. Prima Facie Case • Did the defendant intend to confine the individual or a third person? • Did the defendant fix the boundaries? • The act directly or indirectly results in the confinement of the other • Is the plaintiff aware of the confinement or suffered harm from it?

3. Related Cases 4. Other Information • Restraint is the setting of fixed boundaries by the defendant so as to not let the plaintiff leave. • Physical restraint is not always required, acts and threats are a good sign. • There must be no reasonable escape • Merchants have some maneuvering room to do what is necessary to protect property, but it must be reasonable • Reasonable time (be brief), reasonable grounds (be certain), reasonable manner (be polite). 6. Trespass 1. Trespass to Land 1. Rule.

• Restatement 2d Section 158 – Intentional, physical entry onto the land possessed by another. 2. Prima Facie Case • Basic trespass here. Looking for intent or recklessness, physical entry, of another’s land. • Defendant acts intentionally o To enter the land in the possession of the other o Or remain on the land o Or failed to remove something from the land they had a duty to remove o Or caused a third person to do any of the above • Transferred intent – can put something or a third person on the property and it is still trespass 3.

Other Information • Check for affirmative defenses here – privilege, necessity, consent • Restatement 2d Section 163 (No Harm) – still liable to the possessor for a trespass if he intentionally trespasses even if no harm happened to the land, the possessor, or any thing or person the possessor has a legally protected interest • Restatement 2d Section 164 (Mistake) – still liable to the possessor for a trespass if he intentionally trespasses even if it is a mistake, however reasonable, not induced by the conduct of the possessor, that the he is in possession of the land or entitled to it, that he had consent, or that he had some other privilege 2.

Trespass to Chattels 1. Rule • Restatement 2d Section 217 & 218 – Intentional dispossession or use of the chattel of another. 2. Prima Facie Case • Intentional dispossession or use of • Another person’s property • And the dispossession is not permanent – aka the property has not been permanently altered • And there is a negative effect (i. e. bodily harm) to the possessor. 3. Other Information • Check for affirmative defenses here – privilege, necessity, consent 3. Conversion 1.

Rule • Restatement 2d Section 222A – Intentional exercise of dominion or control of a chattel of another which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. In addition, if it severely prevents someone from using it for their convenience, it could be deemed a conversion. 2. Prima Facie Case • Looking for intent – did they mean to keep it or take it for an extended period of time. • Did the defendant take control of the property? • Was it seriously interfered with so as to interrupt the right of another?

• Was it changed or altered? Was there inconvenience? How was the chattel harmed? • What was the inconvenience and expense done to the other party? 3. Other Information • Check for affirmative defenses here – privilege, necessity, consent 4. Related Cases AFFIRMATIVE DEFENSES 7. Consent (Privilege) 1. Rule • Restatement 3d Rules 892 (A – D) 2. Prima Facie Case • Objective manifestation (Restatement Section 892 (2) O’Brien), of • Subjective willingness in fact (Restatement Section 892 (1)): Voluntary • For the particular or substantially the same conduct to occur: Knowing (Restatement section 892A) 3.

Related Cases Barton, Ban, Kennedy, Hackbart 4. Other Information • Consent is subjective, but it may be manifested objectively. Words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact. (Implied consent) 1. Exceptions to Consent • Consent induced by fraud or duress not valid because not voluntary; R2d §892B • Emergency Action does not require consent; R2d § 892D 2. Criminal Consent Rules

• There are three (3) different rules regarding consent: o Criminal Consent (Majority Rule) – if there is consent from the victim and the underlying activity is criminal then consent is no longer valid. o Restatement Rule 892C (Minority Rule – Twist on Barton) – Consent is effective to bar recovery in a tort action even though it was consent to a crime, UNLESS the conduct was made criminal to protect a certain class of people at which point the consent of members of that class is no longer valid. o Barton (Minority Rule) – if she consented to the action, then it would bar her action in court.

Her consent is valid as long as she knows the nature and quality of her act. 3. Medical Consent • Consent rules as they apply to doctors. Consent to one body part is not consent to the rest of the body. • The patient must be given alternatives or at least know all the facts before true consent can be given. • Cannot go beyond specific consent given by patient UNLESS it is an emergency (Scope of consent). 4. Informed Consent • Two types of informed consent violations: 1) Battery 2) Negligence • Negligence – type of informed consent where someone fails to explain the risk involved.

The patient has given consent but there as been a breach of duty adequately to inform the patient of the risks. • Battery – type of informed consent. It is unapproved/un-welcomed touching of one’s body. “Where treatment is unauthorized and performed without consent, the doctor has committed a battery” even if “A condition is on the consent, it is a matter of primary importance, and the doctor acts in excess of violation of that condition, if proved, constitute a battery” If the scope of consent is violated, it is a battery.

• Also liable for battery if you explain all risk but did not explain a risk or result that they should have known to a substantial certainty would happen, then it is a battery. (constructive intent) • Majority Rule for Scope – consent applies to just the operation that was consented to, unless it is an emergency and you have a reason to know that they would consent. Bang • Minority Rule for Scope – you may extend consent to the general area of the operation/incision as a good surgeon would allow (p. 53). Kennedy 8. Self Defense (Privilege) 1. Self-Defense by Force Not Threatening Death or Serious Bodily Harm 1.

Rule • Restatement 2d Section 63 2. Prima Facie Case • Reasonable force (not intending to cause death or serious bodily harm) • Against unprivileged harmful or offensive contact • Reasonably believes another actor • Intends to inflict on him 3. Other Information • Self-defense is privileged even though: the actor correctly/reasonably believes (objective – does not have to be right) he can avoid the necessity to defend himself by retreating or giving up a right or privilege or by complying with a command which he has no duty to comply with or the other has no privilege to enforce by the means threatened.

• Reasonable belief – a reasonable person would also entertain the same apprehension. This includes acts and statements. • Reasonable force – must not be disproportionate to the harm which the actor is protecting himself from; the fact that it is an emergency situation is considered (a reasonable man in this emergency situation) • Duty to Retreat – there is no duty to retreat in this situation • Legal Duty Exception – if the actor has a legal duty to comply to a demand then he cannot use self-defense against the harm the individual is privileged to apply for the purpose of securing compliance.

2. Self-Defense by Force Threatening Death or Serious Bodily Harm 1. Rule • Restatement 2d Section 65 2. Prima Facie Case • An actor is privileged to use force causing death or serious bodily harm when: o He reasonably believes the other is about to inflict an intentional contact or bodily harm o He is put in peril of death or serious bodily harm o Can safely be prevented by the use of such force 3. Other Information.

• Self-defense is privileged even though: the actor reasonably believes he can avoid the necessity by retreating within his dwelling place or permit the other to intrude or dispossess him of his dwelling place or abandon an attempt to get a lawful arrest. • Self-defense is NOT privileged if: the actor reasonably believes he can safely avoid the necessity by retreating (if attacked anywhere other than his dwelling or in a place which is the dwelling of another) or relinquishing any right or privilege other than the privilege to prevent intrusion or dispossession or to effect a lawful arrest.

• Standing Ground (the Jason Rule) – a person can stand his ground, if he reasonably believes, the slightest doubt that he cannot escape safely. 3. Related Cases 9. Defense of Others 1. Rule • Restatement 2d Section 76 2. Prima Facie Case • Can protect a third Person • From harmful or offensive contact (or other invasion of his interests) • Under same conditions by which the actor is entitled to self-defense (see section 8 of this outline) • If the actor reasonably believes:

o The circumstances are such that the third person is entitled to self-defense o His intervention is necessary for the protection of the third person 3. Related Cases 4. Other Information • Restatement 76 (Minority Rule) – Objective rule: You have whatever privilege a reasonable person would have in my circumstance. If I can see but the one being attacked can’t, I can’t shoot. • Derivative Privilege (Majority Rule) – Subjective rule: You have whatever privilege the party “in danger” has. If I can see but the person “in danger” can’t, I can shoot.

10. Defense of Property 1. Defense of Possession by Force 1. Rule • Restatement 2d Section 77 2. Prima Facie Case • Actor can use reasonable force not intended to cause death or serious bodily harm if: o The intrusion is not privileged or the other acted to make the actor believe its not privileged o AND the actor reasonably believes the only way to terminate it is by the use of force o AND a request to desist was made and disregarded or the request would be useless or result in substantial harm before it can be made 3.

Other Information Incomplete Privilege – This refers to cases where a person has a privilege to protect himself or his chattel so he is free of liability from trespass, but he is not free from liability for any material harm done to its physical condition. The only way an actor can prevent this intrusion is if he has reasonable grounds to believe that it is likely to cause substantial bodily harm to him or third persons. 2. Use of Mechanical Device Not Threatening Death or Serious Bodily Harm 1. Rule • Restatement 2d Section 84.

2. Prima Facie Case • Privileged to use device, not likely to cause death or serious bodily harm, to protect land or chattels if: o It is reasonably necessary o AND the device is reasonable under the circumstances o AND the device is customarily used or reasonable care is taken to make it known to intruders 3. Other Information • Look at comments for any extra situation regarding the type of device used. 3. Use of Mechanical Device Threatening Death or Serious Bodily Harm 1. Rule • Restatement 2d Section 85 2. Prima Facie Case and chattel only if, had the actor been present, he would have been allowed to use such force. 4. Related Cases 11. Necessity (Privilege) 1. Public Necessity 1. Rule • Restatement 2d Section 196 2. Prima Facie Case • Can enter the land of another if the actor reasonably believes it is necessary for the purpose of avoiding an imminent public disaster. 2. Private Necessity 1. Rule • Restatement 2d. 197 2. Prima Facie Case.

• One is privileged to enter or remain on another’s land if it reasonably appears to be necessary to protect: o The actor, his land, or his chattels o Or a third person (his land or chattels), unless he knows the person does not want such action. • This is not a full privilege. The actor is still liable for any harm done in the exercise of the privilege unless the threat of harm was caused by the tortious conduct or contributory negligence of the possessor. 3. Related Cases • Restatement 197(1) – Ploof; Restatement 197(2) – Vincent 4. Other Information.

• Doctrine of necessity: “An inability to control movements inaugurated in the proper exercise of a strict right, will justify entries upon land and interferences with personal property that would otherwise have been trespass” • Using or destroying someone else’s property is justifiable if based on necessity. • Necessity is a privilege that can negate self defense and defense of property. If the person is privileged to be on the property and the other uses physical force thinking of self defense, this may be a valid battery claim. 12. Discipline (page 93 in casebook).