1
Q
3 major categories of liability wherein a plaintiff can sue and recover against the defendant
A
- Intentional torts
- Negligence
- Strict liability
2
Q
Weaver v. Ward
A
A person may be held civilly responsible in tort for injuries he/she causes to others, unless the injuries were caused totally w/o his/her fault.
3
Q
Brown v. Kendall
A
- P must prove D acted intentionally or failed to use ordinary care for intentional acts (ie. negligent) for it to be D’s fault
- To be held liable, D’s act must be voluntary
- The burden of proof is usually on the Plaintiff (from this case on)
4
Q
Involuntary v. Voluntary act
A
Involuntary
- Act against the persons will
- Not controlled by the person (ex. Seizures, sleepwalking)
Voluntary
- An act willed by one’s brain
- Voluntary movement
5
Q
Garratt v. Dailey
A
- Children 5 yo and older will be held liable in intentional tort.
- Intent may be established by established by proving either that the D acted with i- specific intent (“purpose intent”)
- D desires to bring an unlawful act/tort - general intent (“knowledge intent”)
- D has knowledge to a substantial certainty that an unlawful act/tort will result from D’s action
- Intent to do harm is NOT required to hold a D liable, but only the intent to act w/ substantial certainty.
6
Q
Parvi v. City of Kingston
A
- False imprisonment required
- either P’s conscious awareness of confinement at the time the confinement takes place
- OR harm from confinement
7
Q
Hardy v. LaBelle’s Distribution Co.
A
- A person who is free to leave but who chooses to remain does not have a viable false imprisonment action. (moral persuasion not sufficient)
- Person may be falsely imprisoned through threat to another or valuable property
- No minimum time restraint (even the briefest moment)
- Shopkeepers privilege
8
Q
State Rubbish Collectors v. Siliznoff
A
- IIED = intentionally causing severe emotional distress to another
- Nominal damages can’t be recovered for IIED
9
Q
Slocum v. Food Fair Stores of Florida
A
- By society standards, if it is extreme and outrageous and intends to cause mental damages of a very serious kind = actionable claim
- Extreme and outrageous conduct is measured Objective standard
- Unless D knows that P is sensitive
10
Q
Taylor v. Vallelunga
A
- D’s intent must be proven by P to recover for IIED
- D’s knowledge of P’s presence is a necessary element to alleging either the D’s specific or general intent or reckless state of mind
11
Q
Physical TTL (2)
A
- No actual harm is required
- Nominal damages are permitted
12
Q
What type of damages are required for Nonphysical TTL
A
Actual physical damages required
13
Q
Doughterty v. Stepp
A
- Trespass of land is intentionally causing entry onto the real property of another.
- The only intent required is intent to action. Mistake does not negate intent.
- Every unauthorized entry into the close (e.g land, boundary, property line, or fence) of another = TTL
- TTL protects one’s right to exclusive possession of one’s land
- Nominal damages & compensatory damages if damages were caused.
14
Q
Herrin v. Sutherland
A
- Possession of land includes the surface as well as space upward and downward within limitations that are reasonable
- Nominal damages can be used to enforce rights
15
Q
Rogers v. Board of Road Commissioners
A
- Discusses a continuous TTL
- Permission to enter someone’s property may be limited by
- Time
- Area
- Purpose - In sum, trespass action will lie if D enter P’s land with permission but then overstayed duration of permission (object also applies)
16
Q
Glidden v. Szybiak
A
- TTC- intentionally intermeddling w the possession of another’s chattel by causing:
(1) dispossession of the chattel or
(2) actual impairment of the condition, quality or value of the chattel
(3) or deprivation of the chattel’s use for a substantial time
17
Q
Surrocco v. Geary
A
- Public necessity is a complete defense (D pays $0 damages)
- D does not have to be a government official. Any person can act as the champion of the public.
- Necessities = D is acting to prevent a threatened injury from some force of nature or other independent causes not connected to P
- This case discussed public necessity
18
Q
What is a champion of the public privileged to do? (5)
A
- Privileged to destroy damage or use real or personal property
- If she or he reasonable believes
- It is necessary to avert
- Imminent
- Public disaster
19
Q
Bonkowski v. Arlan’s Department Store
A
Shopkeeper’s Privilege = shopkeeper/merchant is privileged to detain for reasonable investigation whom he reasonably suspects to have taken chattel unlawfully
Complete defense in TN: (1) reasonably suspects (2) reasonable manner and (3) reasonable period of time
20
Q
Hodgenden v. Hubbard
A
One dispossessed of chattel is privileged to use reasonable force immediately after dispossession
- Limited to hot pursuit;
- Must be a demand that person return chattel; and
- Limited to reasonable force under the circumstances
21
Q
Katko v. Briney
A
- A land owner is prohibited from setting out spring guns or otherwise using deadly force to protect real property unless human life is in danger
- Policy reason: Consideration of human lives.
- Human life is more important than property
- Bottom line: one may not use deadly force.
- May use reasonable force to protect property.
22
Q
When is force allowed to protect real property? (3)
A
- Plaintiff is trespassing
- Defendants has a reasonable belief that force is necessary AND
- Defendant requested Plaintiff trespasser to leave (or it would be useless to make such a request)
23
Q
CompuServe Inc. v. Cyber Promotions Inc.
A
- This case discusses the difference between TTC and Conversion
- Damage is calculated by the decrease in value of the chattel- TTC
- Damages of conversion is calculated by market value of the chattel at the time of the conversion
24
Q
Technical Injuries for Conversion
A
Substantial interference or destruction of personal property
25
Pearson v. Dodd
- This court ruled that the tort of conversion protects only tangible personal property
- Why no conversion action?
- Because the physical documents were not converted and the information in the documents that were photocopied in this case is not the type of property protected by conversion law
- According to this court, what information, if any, containing in documents may be protected by conversion law?
- Literary property
- scientific invention
- secret plans for the conduct of commerce are the types of property protected by conversion law
26
Technical Injuries for Battery
Harmful or offensive contract
27
Technical Injuries for Assault
Reasonable apprehension of imminent battery
28
Technical Injuries for False Imprisonment
Confinement to a defined (i.e. bounded) area
29
Technical Injuries for IIED
Severe emotional distress
30
Technical Injuries for Trespass to land
Entry onto real property
31
Technical Injuries for Trespass to chattel
Intermeddling or dispossession of personal property
32
Technical Injuries for Conversion
Substantial interference or destruction of personal property
33
Spivey v. Battaglia
In order to be liable for the intentional tort of battery, defendant must have
Intended and caused harmful or offensive contact or
Believed that harmful or offensive contact was substantially certain to follow, despite not anticipating the consequences of Defendants actions
The court is not saying that the defendant wouldn’t be liable for unanticipated injuries, rather they are saying the defendant must have foreseen some offensive or harmful contact
Negligence (risk)
34
Eggshell skull plaintiff rule:
defendant liable for a plaintiff unforeseeable and uncommon physical consequence caused by the defendant's negligent or intentional act
Defendant is liable for all resulting damaged, regardless of how unforeseeable they are
35
Ranson v. Kitner
D’s mistake, even if made in good faith does not negate intent
Good faith and “mistake” does not negate intent sufficient for imposing liability on D for intentional tort
36
McGuire v. Almy
Mental Illness does not negate intent for an intentional tort = insanity is not a defense for an intentional tort
Mentally ill are responsible for the damage caused by intentional torts like the manner of others
37
Altieri v. Colasso
Transferred intent doctrine
When defendants intends any 1 of the 5 specified intentional torts and accomplishes the technical injury for any 1 of the 5 torts, intent is established, whether intended for the plaintiff or for another person
Intent may be established even when the precise injury accomplished is not the one intended by the defendants
38
Wallace v. Rosen
Battery requires intentional physical harmful/offensive touch to the person of another
Offensive contact - would an ordinary person find it offensive, not just unduly sensitive as to personal dignity.
The injury is the contact
Elements of Battery
Crowded space: non-hostile touching does not amount to battery
Ie. tapping on the shoulder to tell you I need to pass
39
Fisher v. Carrousel Motor Hotel, Inc.
Offensive battery includes unpermitted and intentional contact with anything so connected with the plaintiff’s body as to be customarily regarded as part of the plaintiff’s person
Mental damages are recoverable in the case of willful battery, without the necessity to show an actual physical injury
40
Western Union Telegraph Co. v. Hill
Assault = intentionally causing apprehension of an imminent battery (i.e offensive or harmful bodily contact)
Words alone or words negating imminent of bodily contact are insufficient for assault
Only apparent ability needed not actual
Apprehension, not fear is required for assault
P can recover for assault, despite actual physical harm to the body
P.S: Vicarious liability and respondeat superior - employers are liable for the wrongful acts of their employees committed within the course and scope of their employment
41
What is an exception to false imprisonment?
* If there is a reasonable means of escape (without P losing dignity) it is not false imprisonment
42
What are the damages recoverable under false imprisonmet?
```
* Damages recoverable:
Compensatory damages
Nominal damages
Punitive damages
Mental suffering
```
43
Big Town Nursing Home v. Newman
False imprisonment: The direct restraint of a person of their physical liberty without adequate legal justification (eg. no court order for P’s confinement)
Means of escape - losing dignity
You can revoke consent to confinement and still be false imprisonment
44
Koffman v. Garret
- Consent means that P was in fact willing for the tortious conduct to occur.
- The question of consent is a question of fact.
- In sports, players don't consent to actions that are prohibited by the rules if the rules are made to keep players safe
45
Definition of Chattel
tangible, moveable personal property
46
General rule in Defense of real property
Owner of property is authorized to use reasonable force to eject the trespasser but cannot use deadly force unless necessary in self-defense or to prevent a felony
47
Defense of Others Majority Rule
Defendant steps into the shoes of 3rd party whom the Defendant is defending
48
When is someone privileged to use force in Defense of others
- Intervention is necessary
| - When defendant reasonably believes the 3rd party is privileged to use force in self-defense
49
What does the defense of others mirror?
The privilege to use force in defense of others essentially mirrors the privilege of defense of self
50
Poliak v. Adcok (TENNESSEE CASE)
- Reasonable belief (objective standard)
- As long as the threat of injury continues (necessary)
- With appropriate force (proportionate)
51
Defintion of Self-defense
one is privileged to use force to protect against imminent serious bodily injury
52
Before employing deadly force in self-defense, what is the minority view
“retreat to the walls”
53
Before employing deadly force in self-defense, what is the majority view
stand your ground doctrine
54
DeMay v. Roberts
Consent procured by fraud is invalid
55
Mohr v. Williams
- Balancing act on whether it is a life-threatening risk
| - Case discusses express consent and implied consent.
56
A patient is believed to impliedly consent to a medical procedure if all of she following factors exist: (4)
- P is unconscious or otherwise unable consent
- Life-preserving medical attention is necessary
- No reason to believe P with not consent
- And reasonable person would consent
57
What should a doctor do if a patient is unconscious or unable to consent?
The doctor should try to procure consent of a close relative of P if one is close by
58
Lubitz v. Wells
- Unreasonable risk is one which a reasonable person would recognize as involving a risk of harm to another
- It was not unreasonable conduct (i.e. not negligence) to leave a golf club lying on the ground in one’s backyard
- A golf club isn't intrinsically dangerous
59
Wallace v. Wal-Mart Stores Inc.
- Direct Evidence? Or Circumstantial evidence?
- Constructive Knowledge can be demonstrated by P in 2 ways:
- By showing that a store employee was present in the immediate area; or
- By showing that the substance had been on the floor for such a time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises
60
Wal-Mart Stores v. Rosa
- There are 4 elements P must establish in a slip and fall case
- Direct evidence? Or Circumstantial evidence?
- In cases in which circumstantial evidence is relied upon to prove constructive notice, the evidence must establish that it is more likely than not (not simply a possibility) that the dangerous conduction existed long enough to give the owner/operator a reasonable opportunity to discover the condition
61
Anjou v. Boston Elevated Railway Co.
- Direct Evidence
- Evidence of the fact sought to be proved (e.g. duty/breach = negligence)
- Circumstantial evidence
- Evidence from which the fact sought to be proved (e.g. duty/breach) may be inferred
62
Goddard v. Boston & Maine R.R. Co.
-Court found insufficient evidence from with RR’s negligence may be inferred
63
Dram Shop Laws
- DSL = various state statutes that govern civil liability of restaurants, taverns, liquor stores, and other commercial establishments that serve alcoholic beverages
- Generally establish civil liability of establishments arising out of the sale of alcohol to visibly intoxicated person or minors who subsequently cause death or injury to 3rd party as a result of alcohol related car crashes or other accidents
64
Teply v. Lincoln
- Negligence per se jurisdiction
| - Legal excuse is required
65
General Rule for Statutory Regulation/Negligence Per Se (When you break a statutory regulation)
When a statute, administrative regulation, or municipal ordinance imposed upon any person a specific duty for the protection or benefit of others, if a D neglects to perform that duty, D is liable for negligence:
- To anyone in the class of people intended to be protected by the statute;
- For any accidents/harms of the type that the statute was intended to protect against; and
- If the accident/harm was proximately caused by the D’s violation of the statute
66
Majority View for Statutory Regulations/ Negligence Per Se (When you break a statutory regulation)
violation of a statute, state or federal regulation, or municipal ordinance establishes negligence per se (i.e. negligence as a matter of law)
67
Minority view for statutory regulation/negligence per se (When you break a statutory regulation)
Such violation is merely evidence of negligence that may be outweighed by other evidence showing due care
-However, if a statute explicitly states that its violation gives rise to civil liability, even the minority will impose liability
68
Zeni v. Anderson
The Effect of violation of a statute falls within 1 of 3 categories:
- Prima Facie case of negligence with a rebuttable presumption of negligence
- Negligence Per Se
- Only evidence of negligence
69
Violation of a statute: Prima Facie case of Negligence with a rebuttable presumption of negligence
Based upon a justified excuse (only a few states, including Michigan)
- Proof of duty and breach of duty as matter of law that may be rebutted
- Only rebuttable upon a showing of credible (i.e. Justifiable) excuse
- Jury Makes the determination regarding the validity of the excuse
70
Violation of a statute: Negligence per se (as a matter of law)
Majority
- Violation is “negligence in itself” (i.e. negligence is established as a matter of law
- NPS usually arises from a statutory violation
- Court (not a jury) makes the determination regarding the validity of the excuse
71
Violation of a statute: Only evidence of negligence
Minority
| - Merely evidence of negligence
72
Perry v. S.N. & S.N.
Questions to consider in NPS cases:
- Whether the P is a member of the class the legislature intended to protect;
- Whether the P’s injury was of the type that the legislature intended to prevent; and
- Whether it is appropriate to impose tort liability for violations of the statute
73
Chicago, B. & Q. R. Co. v. Krayenbuhl
Negligence law is about striking the appropriate balance
Business of life cannot be rendered absolutely safe
Must weigh the public good and benefits against possible dangers of using of dangerous machinery
74
U.S. v. Carroll Towing Co.
Learned hand formula:
| -B
75
Determining Standard of care
1)Determining what the RPP would have done in same circumstances
2) Apply the rule of law
I.e. judicial pronouncement of SOC
3) Applying legislation not expressly defining the SOC in negligence action
Statute enacted for other purposes (non-tort)
4) Applying legislation expressly defining the SOC in negligence actions
Statute enacted for tort
76
Vaughan v. Menlove
- The reasonable prudent person
-Objective standard of care
not based on defendant
-Does not take into consideration the mental deficiencies of the Defendant
77
Gross Negligence
Refers to very great negligence
| Failure to exercise what even a careless person would exercise (not even slight care)
78
Custom: Restatement 2d of Torts §29-5A
Customs of the community or of other under like circumstances are factors to be considered but are not controlling where a reasonable person would not follow them
79
Custom part 2
Complying with the customs or of other in like circumstances is evidence that the actors conduct is not negligence, but does not preclude a finding of negligence
80
Custom part 3
Departing from the custom or of others in like circumstances is evidence that the actors conduct is negligent, but does not require a finding of negligence
81
Sears v. Roebuck
-Reasonable prudent person takes into consideration customs
Custom/practice of a particular industry is probative of certain conduct under the circumstances
-Expert testimony regarding the relevant standard of care must be adopted by the industry as a whole
82
Heath v. Swift Wings
Professional standard = Objective:
- Conduct of the reasonably prudent person (i.e. professional) under the same or similar circumstances, unless altered by statute
- The skill, training, and the knowledge of the “ordinary” member of the profession, not just the average
Specialists are generally held to a higher SOC than a general practitioner
83
Wolski v. Wandel
For legal malpractice, SOC is established by law
84
Establishing a SOC by applying a rule of law
Previously formulated by a binding court (i.e. judicial decision)
85
By what standard is the resonable purdent professional judged?
An objective standard
86
Definition of a professional
Person belonging to a learned profession or whose occupation requires a high level of training or proficiency
87
How is legal malpractice SOC determined in TN?
SOC includes knowledge of local rules of courts AND statewide SOC
88
Morrison v. McNamara
In medical malpractice cases, the duty of care is generally formulated as that degree of reasonable care and skill expected of members of the medical profession under the same or similar circumstances (this case used the national standard)
89
What are 3 SOC rules that courts can consider when deciding medical malpractice?
Locality Rule
Same/Similar locality
National Standard
90
Helling v. Carey
- Defendant can still be held liable, even when defendant complies with the professional standard of care
- Note: this case was later reversed by a statute by the Washington legislature after this decision was criticized
91
Stachniewicz v. Mar-Cam Corp.
NPS claim can arise when the violation of a statute or regulation shows that:
- There is injury to a member of the class of persons intended to be protected by the legislation
- Harm is of the kind which the statute or regulation was enacted to prevent
- Statute or regulation is an appropriate measure for awarding civil damages for negligence (i.e. tort liability)
92
Sanchez v. Wal-Mart Store, Inc.
- Injured party is in the class of persons whom the statute is intended to protect and
- Injury is the type against which the statute is intended to prevent
93
When may a non-tort statute be used to establish SOC?
a. Sanchez v. Wal-Mart Store
b. Stachniewicz v. Mar-Cam Corp.
c. Perry v. S.N. and S.N
94
Osbourne v. McMasters
- May a statute enacted for non-negligence purposes be used in a negligence action to establish the standard of care?
- When:
- The plaintiff is in the class of persons the statute is designed to protect and
- Harm suffered is the type of harm the statute is designed to protect
- “Negligence per se” = violation of a statute constitutes conclusive evidence of negligence
95
How is a SOC establish with a non-tort statute?
By applying a non-tort specific legislative enactment or administrative regulation
96
US Supreme Court Case Rules:
Pokora
Pennsylvania Rule
Goodmand Rule
Majority Rule
97
What is the Majority rule from the US Supreme Court cases
- Requires traveler to look and listen with the duty to stop dependent on the circumstances
- Its a jury questions
98
What is the Goodman Rule from the US Supreme Court cases
If the driver is not sure whether a train is dangerously near, a driver MUST stop, look, listen, and exit. Cordozo pointed out in Pokora that no Supreme Court decision (including Goodman) suggested that there was an absolute duty to stop at every railroad crossing irrespective of the danger
99
What is the Pennsylvania Rule from the US Supreme Court cases?
Mandated “an unyielding duty to stop, as well as look and listen, no matter how clear the crossing or the tracks on either side”
100
What is the Pokora rule from the US Supreme court cases?
You don’t have to STOP and get out of a vehicle = a driver who stops, looks, and listens has done enough
101
Pokora v. Wabash Railway Co. (USSC)
- There is a “need for caution in framing standards of behavior that amount to rules of laws”
- Jury should decide if P engaged in reasonable conduct
- Majority rule vs. PA rule (minority rule)
102
Baltimore & O.R. Co. v. Goodman (USSC)
- Contributory Negligence?
- Person harmed contributed to his own injury
- If the person is even 1% contributory, they are barred from recovery
- Driver at RR tracks must stop, look, listen, and exit vehicle if necessary, to look for a train = “stop, look, listen, and exit” rule
- Rule of law:
- When a standard of conduct is clear, it should be laid down once and for all by the courts and not be left to the jury
103
Establishing a SOC by applying a rule of law
Previously formulated by a binding court (i.e. judicial decision)
104
Scott v. Bradford
Used the informed consent doctrine, used a subjective test, BOP if on the P to plead and prove
105
Informed consent doctrine
- Physician is required to adequately inform patient about treatment protocol, available alternatives, and collateral risks
- Requires full disclosure of all material risks
- ICD is treated as a special type of negligence case, not a battery claim
- BOP= P must prove the action
106
Affirmative defenses to informed consent (3)
- Common knowledge
- Full disclosure would be detrimental to patient’s total care
- Emergency
107
Ashe v. Radiation Oncology Associates (TENNESSEE CASE)
An objective standard should be used in an informed consent case (TN uses this, Majority of jurisdictions use it)
108
3 standards of informed consent
Subjective standard (minority rule)
-What the patient would do
Objective standard (TN uses this, majority rule)
-What a reasonable prudent person in the patient’s
position would have decided if adequately informed of
all significant perils
Modified objective standard
109
What must a plaintiff prove by expert testimony in a Medical Malpractice case?
1. What a reasonable medical professional or specialist in the same or similar community would have disclosed to a patient
2. and that the physician or specialist departed from the norm
110
Moore v. The Regent of the University of California
- This case is not conversion, it is breach of fiduciary duty and lack of informed consent
- Informed consent doctrine requires a physician’s disclosure of research, economic, or other personal interests unrelated to the patients’ health that may affect his medical judgment
111
What must a plaintiff establish to prove conversion?
they must establish intereference with ownership
112
Cordas v. Peerless
- Discussed the sudden emergency doctrine
| - SOC for person facing a sudden emergency, not of his own making, is the “reasonable person in an emergency”
113
TN Good Samaritan Law
Law grants immunity so long as:
1. Person acts voluntarily
2. Person renders emergency care
3. Person acts in good faith, and
4. Person does not commit gross negligence
* Only Vermont and Minnesota require affirmative duty to render aid if you pass by an accident.
114
Roberts v. State of Louisiana
-The physical characteristics of the person whose conduct is being evaluated are taken into account in applying the reasonable person standard:
In this case, the question is, what would the reasonable blind man do under these circumstances
-In sum, look at a reasonable man under the same physical disability
115
Bruenig v. American Family Insurance Co.
-Majority view: reasonable person standard = mentally disabled adults (insane adults) are held responsible for the torts they commit regardless of their capacity to comprehend their actions (i.e., they are held to an objective reasonable person standard)
Therefore, the mental illness of the defendant usually is not taken into account in evaluating the reasonableness of their conduct
-Exception in this case: sudden mental incapacity, not liable for negligence
Note: the majority of jurisdictions, unlike Wisconsin, make no allowances for the mentally ill defendant, even in cases of sudden insanity or mental deficiency
116
Gould v. American Family Mutual Insurance Co.
-Institutionalized insane person is not negligent
Not liable for injuries to employed caretakers
-Policy considerations?
Not to put financial burden on family members who put mentaly illed in a institution already
117
Firefighter's Rule
Prohibits emergency personnel from holding a person liable for injuries suffered when responding to a situation created or caused by that person
118
Dellwo v. Pearson
```
SOC for a child:
Childlike age, intelligence, and experience unless:
1) Operating motorized vehicle
(Dellwo case)
2) Engaging in adult activity
(Restatement)
Engaged in inherently dangerous activity
(Robinson case)
```
119
Children engaged in childhood activities
- Should be judged by what is reasonable conduct by a child
- Majority of states don’t apply negligence principles to children 3 years old and under
- Most do apply to 7 years old and older
120
Children engaged in adult activities
- Judged by an adult standard
| - SOC for an adult
121
Summary- RPP
-Objective standard
-Does not take into consideration the mental deficiencies of D
-Takes into consideration the customs and if D still acted reasonably
-Does not take into consideration the mental insanity of D
-Exceptions:
1) Sudden illness- not foreseeable
Heart attack, seizure.
2) Institutionalize insane person - not liable to workers
-Takes into consideration the physical characteristics of D
-RPP in an emergency
-Child SOC
122
At what age are minor children are responsible for their intentional tort?
5 yrs old or older
Torts
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Decks in class (6)
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