Torts Cases V1

Battery is committed if (1) the actor intends to cause harm or offensive contact and (2) a harm directly or indirectly results from the action

Under the Restatement 2d of Torts, "act" is used "to denote an external manifestation of the actor's will and does not include any of its results, even the most direct, immediate, and intended."

Battery occurs when one intends a harmful or offensive contact with another without the person's consent

R2Torts says an actor is subject to liability to another for battery if:
(1) He acts intending to cause a harmful or offensive contact with the person of the other; and (2) A harmful contact with the person of the other directly or indirectly results OR (3) An offensive contact with the person of the other directly or indirectly results

The intent to bring about a result which will invade the interests of another in a way the law forbids constitutes battery

• Dual Intent Jurisdiction requires that a tortfeasor both intend to cause the contact and intend for the contact to be harmful or offensive.

• Single Intent Jurisdiction requires that the tortfeasor only intend to cause the contact with another person.

A PL who shows the existence of a battery without an accompanying injury may be awarded, at most, nominal damages

Note: De minimis non curat lex -- the law cares not about trifles

"The law cares not about trifles."

Assault requires that a person acts while intending a harmful or offensive contact with another or acts while intending to produce a reasonable apprehension of an imminent battery, causing mental or emotional damages.

Words alone are not enough to make an actor liable for assault, unless the words are accompanied by other acts or circumstances that place an individual in reasonable apprehension of an imminent or offensive contact by the DF.

Transferred intent provides that a DF's intent to cause a harmful or offensive contact to one person or create an apprehension of imminent contact to that person may be transferred to an unintended target, thereby subjecting the DF to liability for battery (or assault)

A PL who consents to participate in a sport, game, or contest in which injury is possible does not have a claim in tort if he sustains an injury as a result of his participation

A person who knowingly infects another with a STD after failing to warn or take any precautions against exposure may be held liable for battery, regardless of any marital relationship to the victim.

Express or implied consent to engage in a physical altercation where there is a high likelihood of physical injury acts as a bar to recovery for a battery claim, unless the force used was in excess of that necessary or was not reasonably anticipated (e.g., bringing a gun to a fistfight)

Many states have statutes defining what constitutes disturbing the peace. These statutes may distinguish between when consent to a harmful contact is a defense and when it is not

The use of a dangerous weapon to repel an attack is justified if an individual is in fear of an imminent threat of serious bodily harm or death

An individual in a civil action may assert a claim of defense of family to justify an assault on a third party, so long as the force used was not in excess of that necessary or reasonable

Colorado statute that states that citizens of Colorado have a right to expect absolute safety within their homes (p. 65)

Florida statute stipulating that a person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes such conduct is necessary to defend himself (p. 65)

Florida statute permitting use of deadly force in the event of a home invasion

A DF claiming self-defense or defense of property to a charge of assault or battery must show that: (1) he used reasonable force not intended to cause death or serious bodily harm (2) to thwart an unprivileged harmful or offensive contact or other bodily harm (3) he believed was about to be imminently inflicted upon him

Utah statute permitting a person to use force, other than deadly force, against another to prevent or terminate criminal interference with real property or personal property

North Dakota statute permitting force if it is used to prevent or terminate an unlawful entry or other trespass in or upon premises, or to prevent unlawful carrying away or damaging of property

New Jersey statute permitting the use of deadly force to defend premises or property in certain situations

A person has a legal duty to use his or her property with the same level of ordinary care that would be exercised by a reasonable person.

If a DF is engaged in a lawful shipping business and has no knowledge of dangerous contents it has shipped, the DF is not liable for negligence in the handling of the dangerous items that subsequently cause injury, death, and property damage.

Under the Hand Formula test for negligence, an entity's unreasonable conduct is defined as the failure to take sufficient precautions when such precautions would generate greater benefits in avoiding incidents or accidents than the implementation would cost.

In a negligence action, the DF is held to the standard of care that a reasonable person would exercise under the circumstances, even if the DF is engaged in the use of a dangerous instrumentality.

The sudden emergency doctrine provides that a DF is not liable for negligence if he was faced with a sudden and unexpected danger and acted reasonably under the circumstances to avoid harm to himself or others.

In determining whether a DF's conduct fell below the standard of care that would be exercised by a similarly situated reasonable person, a jury may consider evidence of exceptional skills or qualities possessed by the DF.

An adult standard of care should be applied to a minor engaging in an inherently dangerous activity, such as the operation of a powerful motorized vehicle.

The standard of conduct to which a child must conform to avoid being found negligent is that of a reasonable person of similar age, intelligence, and experience under similar circumstances.

A blind individual may be contributorily negligent in his actions if he fails to exercise due care for his own safety with respect to known or reasonably foreseeable dangers.

A mentally disabled person is held to the standard of care of a reasonable person under like circumstances, regardless of the person's ability to understand or control his or her actions.

A blood bank failing to perform blood testing and screening for HIV/AIDS in 1983 was not liable for professional negligence when such tests were not accepted practice for blood banks in the profession nationwide.

The standard of care in a medical malpractice action is defined by the degree of care, skill, and proficiency exercised by reasonably careful, skillful, and prudent medical practitioners in the same class, acting under similar circumstances.

In a negligence action against a health care provider a PL is not required to produce expert medical testimony to show that the applicable standard of care was violated in matters of nonmedical, administrative, ministerial, or routine care provided by a hospital.

The standard of care that a landowner owes to a trespasser intending to commit a criminal act is not to intentionally injure the trespasser.

A DF will not be liable to a PL child under the attractive nuisance doctrine if the trespassing child is aware of the dangerous condition posed by being on the land, understands the risk involved and is in a position to avoid it, yet voluntarily proceeds and is subsequently injured.

(1) A place is one where the owner knows or has reason to know that children are likely to trespass;
(2) A condition will involve an unreasonable risk of death or serious bodily harm to children;
(3) Because of their youth children don't discover the condition or realize risk involved;
(4) Utility to the possessor and maintaining the condition and burden of eliminating the danger are slight compared to risk to child; and
(5) Possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children.

A landowner owes a duty of care to a licensee not to injure him by willful, wanton, or grossly negligent conduct and he must use reasonable care to warn about, or to make reasonable safe, a known dangerous condition that the licensee was unaware of.

Note: Social guests are classified as licensees in Texas.

In North Carolina, determining premises liability based on an entrant's status as either an invitee or licensee is abandoned in favor of a true negligence standard which examines whether a landowner acted as a reasonable person would have under the same circumstances.

An omission, or failure to perform an act required by statute, constitutes negligence per se.

For negligence per se to apply, the PL must show that they're (1) a member of the class that the statute was designed to protect and (2) that the harm suffered was the type the statute was intended to prevent.

The negligent acts complained of under a specific statute must be directly related to the purposes of the statute in order for the action to be successful.

If the PL was not in the class of persons designed to be protected and did not suffer the type of harm sought to be prevented by the law then negligence per se doesn't apply.

A landlord's failure to comply with state building codes constitutes negligence per se, but such liability may be excused by the landlord's lack of actual or constructive notice of the defective condition.

A business may be liable for failing to adopt new tech, even if the industry has not widely adopted it, if the use of the tech constitutes reasonable prudence.

● N. because cost of protection is less than risk.
● Custom ≠ Conclusive ; Just SOME Evidence

Assumption of Risk is not an absolute bar to recovery unless the PL's degree of fault in assuming the risk is greater than the DF's negligence.

Custom is admissible to demonstrate that the party did not act negligently, particularly if there are no statutes defining proper behavior.

• Three Elements to be prove contributory negligence for agreeing to ride with a drunk driver: (1) Driver was under the influence; (2) Knew or should've known they were under the influence; and (3) Voluntarily rode with the driver.

• Entering a car with knowledge that the driver is under the influence and voluntarily rides with them is guilty of contributory negligence per se.

If contributorily negligent, a PL may recover if the PL's negligence is less than the DF's negligence.

Generally, a release does not bar PL's maintenance of an action alleging willful and wanton misconduct by the DFs.

• A DF is absolved from liability for negligence if he proves by a preponderance of the evidence that a PL's contributory negligence was the proximate cause.
• Burden is on DF to provide greater weight of evidence that PL was the proximate cause and more negligent.
• The greater the danger the greater the vigilance required.

In a negligence action, the appropriate standard to be applied is whether they objectively exhibited ordinary care that a RP would have under similar circumstances, rather than a subjective standard held by the particular DF.

If injury of a type that does not typically occur without negligence does occur, negligence is presumed from the mere fact of the occurrence.

Res ipsa loquitur applies if: (1) the injuring instrument was under the Δ's exclusive control; and (2) The accident is one that does not ordinarily happen if the party in control uses proper care.

Sufficient direct evidence of negligence by the DF will preclude application of the doctrine of res ipsa loquitur, which allows an inference that the DF was negligent.

A battery is committed if:
(1) the actor intends to cause harm or offensive contact;
and
(2) harm directly or indirectly results

To prove battery, the PL must prove that:
(1) Tortfeasor intended to act; and
(2) tortfeasor intended to be harmful or offensive

Tortfeasor engages in voluntary movement that results in contact that a RP would find offensive

An actor is liable for assault if:
(a) acts intending to cause harmful or offensive contact with another or third person; or
(b) apprehension of imminent contact
AND
(c) the other is thereby put in such apprehension of imminent contact

Note: "apprehension" = understands the threat & "imminent" = about to happen

Trespass occurs when a person invades the right/interest of another to exclusive possession of land
(1) voluntary act
(2) actor must intend to be on land (even if unaware it's someone else's land)

1. Public necessity
2. Private necessity

An actor may use force to defend against one's self, another person, or property if the force is proportionate to:
(1) interest actor is protecting
(2) injury or harm threatened by another person

(1) Character & reputation of attacker
(2) Belligerence of attacker
(3) Difference in size & strength
(4) Overt act by attacker
(5) Serious bodily harm threatened
(6) Whether peaceful retreat is possible

Intentional infliction of emotional distress occurs when the DF's conduct is intentional or reckless, so outrageous that it is not tolerated by civil society, and it resulted in serious mental injury to the PL.

(1) Outrageous conduct by DF
-- go beyond all human decency
(2) DF intended to cause OR reckless disregard of probability of emotional distress
(3) PL suffered severe OR emotional distress
-- mental & physical injury
(4) actually & proximate causation of emotional distress

When outrageous conduct directed at third person, actor subject to liability if he intentionally causes severe emotional distress
(a) to member of person's immediate family present at the time whether or not results in bodily harm
OR
(b) to any other person present at the time if such distress results in bodily harm

In a negligence action, the PL must show by a preponderance of the evidence that the Def's action or inaction was a cause in fact of the PLs injuries.

A negligent DF cannot be held liable for a PL's injuries if the DF's negligence was not the legal cause of the injuries.

When two or more human entities both proximately cause injury to a PL, and only one is identified, the PL may recover the full amount of damages suffered from the one known wrongdoer.

● A legal principle stating a person will not be liable for their actions when they arise out of an emergency.
● They must act as a RP would under the same emergency conditions.

Respondeat superior holds an employer vicariously liable for the tortious acts of an employee committed incidental to or during the scope of employment.

To impose vicarious liability under New York statute, the use or operation of the car by the driver or the condition of the vehicle itself must be the proximate cause of the PL's injury.

Statute's Four Elements:
(1) death or injury results to a person or property;
(2) harm resulting from the operator's negligence;
(3) negligence arose from the use or operation of the car; and
(4) the vehicle operator was using the car with the owner's permission.

Under the doctrine of Alternative Liability, two independent tortfeasors may be held Jointly Liable if it is impossible to tell which one caused the PL's injuries, and the burden of proof will shift to the Def. to either absolve themselves of liability or apportion damages between them.

Alternative Liability requires a PL prove that two or more DFs: (1) breached a duty owed to the PL; (2) committed a tortious act; and (3) as a proximate result of at least one of the DFs' conduct, the PL was injured.

Doesn't apply when there's only proof of one DF being at fault.

Utilization of the market share theory of liability in a wrongful death suit to hold multiple DFs accountable for causing an individual's death is proper only when the particular products at issue are identical, fungible, or carry equivalent degrees of risk.

Under Market-share Liability, a manufacturer or distributor is liable for its share of the generically fungible products that are both defective from their creation and cause harm a substantial amount of time after their distribution.

Under the loss of chance doctrine, a physician may be liable for damages when his negligence diminishes or destroys a patient's likelihood of achieving a more favorable medical outcome.

A DF owes a duty of care to a PL only if the PL is in the zone of reasonably foreseeable harm resulting from the DF's actions.

• PL must be within a "orbit of danger" [danger zone];
• Harm must have been foreseeable;
• Works on the directness test that the action directly caused the harm.

• Everyone owes a duty to the world; must be proximate cause from the action to the harm; always have a duty at all times;
• "DF owes a duty of care to anyone who suffers injuries as a proximate result of his breach of duty to someone"

(1) But-for-test / cause in fact
(2) Natural and continual sequence between cause and effect
(3) Substantial factor
(4) Directness without too many intervening events
(5) Attenuation
(6) Likelihood of injury
(7) Foreseeability
(8) Closeness in time
(9) Closeness in space

A negligent motorist who injures a woman does not owe a legal duty of care to the subsequently conceived child of the injured woman.

A negligent actor can be held liable for all negligent damages caused, even if not reasonably foreseeable.

To recover damages in a negligence action, a PL must show that a DF's negligent conduct was a substantial factor in bringing about the PL's harm, without the presence of an intervening act sufficient to break the causal connection.

• To constitute proximate cause, there must be a natural, direct, and continuous sequence between the DF's negligent act and the PL's injury, which is a reasonably foreseeable consequence of the DF's negligence.

• It is not necessary that a negligence DF foresee the exact sequence of events which led to the accident sued upon.

An intervening act occurring after a DF's negligent act may be sufficient to break the causal connection, such that the DF's act can no longer be said to be the proximate cause of a PL's subsequent injuries.

Foreseeability is the prime element by which courts are guided.

No special relationship exists between an organizer of a free event and a spectator that gives rise to a legal duty owed by the organizer to warn the spectator of an approaching thunderstorm.

A social host may not be held liable for injuries to third parties caused by intoxicated adult guests, because (1) you can't know how much they drank beforehand, (2) you can't keep up with all guests at a party, and (3) they're ultimately in control of their choices.

Proprietors have a duty to take reasonable action to give appropriate emergency medical care to its patrons, but doesn't require they provide all medical care that might be reasonably needed.

Under the rescue doctrine, an injured rescuer can sue the party which caused the danger requiring the rescue.

The Firefighter Majority Rule provides that firefighters and police officers who are injured in the line of duty may not recover based on the negligent conduct of another that required their presence.

A therapist owes a duty to exercise reasonable care to protect a third party by warning that person of a specific and immediate threat of serious bodily injury targeted at the person by a specific individual who is in a treatment relationship with the therapist.

A physician has an affirmative legal duty to warn, and is liable for negligently failing to do so, family members or others who are foreseeably at risk of exposure to a disease contracted by an individual the physician is treating.

• To constitute proximate cause, there must be a natural, direct, and continuous sequence between the DF's negligent act and the PL's injury, which is a reasonably foreseeable consequence of the DF's negligence.

• It is not necessary that a negligence DF foresee the exact sequence of events which led to the accident sued upon.

"You must take the PL as you find him or her."

An individual who would ordinarily owe a duty of care to others may be relieved from that duty under certain public-policy considerations such as being relieved of traffic hazard liability when first responders dismiss you.

Instructors must exercise a standard of reasonable care to protect students from reasonably foreseeable risks.

A DF does not breach a duty of ordinary care owed under the particular circumstances if there is a lack of a foreseeable risk of harm to a PL.

Under the R3Torts, an actor's liability is limited to the harms that are the result of the type of risks that made the actor's conduct tortious.

A third-party's intervening intentional act will not break the chain of proximate causation between a DF's negligent conduct and a PL's subsequent injuries if the act is reasonably foreseeable.

Parental immunity is limited to conduct that constitutes the exercise of parental authority, the performance of parental supervision, parental custody, and the normal individualized necessities of the child such as care, discipline, maintenance, protection, guidance, and education.

The discovery rule provides that the statute of limitations does not run against a claim until an event or events have occurred that were reasonably likely to place the PL on notice that someone may have caused the injury.

• The Doctrine of Fraudulent Concealment: Where a party entitled to bring a cause of action is prevented from obtaining certain knowledge by a potential respondent's fraudulent concealment, the statutory limitation on the time for bringing the action will not begin to run until the entitled party discovers the right of action or, by the exercise of ordinary diligence, could have discovered the right of action.

• Two steps for tolling the statute of limitations for a medical malpractice:
(1) The physician had knowledge of wrongful conduct and failed to disclose it or concealed it from the PL and (2) The PL did not know or could not have reasonably known that a cause of action existed within the statutory period.

Statute of Repose: relates to the time when a DF committed the act or omission that is the basis for a PL's claim and bars a claim unless it is filed within a certain period after that time, even if the statute of limitations would not bar the claim.

Modern Interspousal Immunity Rule: As in S. Carolina, a spouse is not precluded from maintaining a tort action against the other spouse, whereas in the traditional common law, a married couple cannot sue because they share legal identity.

The two-part test for discretionary function exception, is the Berkovitz-Gaubert test, which bars suit only if:
(1) The acts alleged to be negligent must be discretionary, in that they involve an element of judgment or choice and are not compelled by statute or regulation and
(2) The judgment or choice in question must be grounded in considerations of public policy or susceptible to policy analysis.

An intervening act is not a superseding cause that breaks the causal connection between negligent conduct and resulting injury if it was: (1) reasonably foreseeable and (2) a substantial factor in bringing about the harm.

It is for a jury to decide, if reasonable minds could differ, whether an intervening act constitutes a superseding cause that broke the causal connection between the DF's negligent conduct and the PL's resulting harm.

A negligent DF is liable for damages to a PLfor all harm directly resulting from the injury and any additional and reasonably foreseeable harm caused by the normal efforts of a third party rendering aid.

Releases exculpating a school district from future negligent acts are invalid per public policy.

Releases signed under conditions that do not provide a PL with an informed, voluntary choice or that contain oppressive terms without an opportunity to be negotiated are unenforceable.

Assumption of the Risk is a complete defense when a DF shows that PL had knowledge and appreciation of a known risk and voluntarily confronted it.

Acts within the scope of employment are those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment.

If you have a domesticated animal that you either know or have reason to know is abnormally dangerous for its category (species) then you are going to be strictly liable for harms that the animal causes related to its dangerous competencies even though you exercised the utmost care.

A DF may be held liable for harm caused by a domestic animal with no history of being abnormally dangerous only if the owner intentionally caused the animal to do the harm or was otherwise negligent in failing to prevent the harm.

An individual or entity that carries on an abnormally dangerous activity is subject to liability for harm resulting from the activity even though the utmost care to prevent such harm was exercised.

The operator of a public fireworks display is strictly liable for harm resulting therefrom.

• The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care.