DAVO Outline

Intentional Torts
 Transferred intent
o Battery, assault, false imprisonment, trespass to chattel, trespass to land
 Mistake, infancy, insanity not defense
 Battery: harmful or offensive contact (contact intended not nec. harm)
o Defendant must be direct cause
 Assault: reasonable apprehension of harmful or offensive contact
 False imprisonment: confinement or restraint within a bounded area
o Victim must be conscious of confinement
 Trespass to chattel: intentionally damage property, deprive from possessor for period of
time, or dispossess entirely
 Conversion is very serious harm to property, less serious is trespass to chattel
o Purchasing stolen property even innocently
 Infliction of Mental Distress
o Intentionally or recklessly
o Third party victim only in personal and close circumstances

Privileges to Intentional Torts

 Consent – express, implied, or by law.
o Invalidated by:
 Incapacity
 Action Beyond scope of consent
 Fraud
 Duress
 Illegality
 Self Defense requires
o Immediate response
o Reasonable use of force, and reasonable mistakes are allowed
o Retreat not required
 Defense of Others – whenever self-defense would have been allowed
 Defense and recovery of property
o Reasonable force only, mistakes not allowed
o Can use serious force to eject from habitation
 Necessity: Action minimizes overall loss
o Public necessity is a complete defense
o Private necessity is a privilege but IS liable for the damage

Negligence and Reasonable Person Standard of Care: 1. Duty and 3. Breach of Duty 2. Standard
of Care 4. Cause in fact 5. Proximate cause 6. Damages
 Reasonable person: physical conditions and emergency conditions taken into account, not
mental capacity of inexperience. Some allowance for children except when performing
adult activities
  Unreasonableness: Burden < Probability*seriousness of likely harm

Proof of Breach
 Evidence
o 1. Direct evidence comes from personal knowledge
o 2. Circumstantial evidence requires inference from other facts
 Res Ipsa Loquitur
o 1. An accident normally does not happen without negligence
o 2. Exclusive control of the instrumentality by the defendant
o 3. Absence of voluntary contribution by the plaintiff (some jurisdictions)

Negligence-Per-Se
 A criminal statute may be used for determining standard of care, replaces reasonable
person
 Licensing statutes typically excluded, as are children

Professional Negligence
 Courts defer to expertise of profession to determine standard of care – determinative
 Malpractice –
o must have deviated from custom of local standard
o failed to provide information to the patient
 Battery for different procedure
 Negligence – failure to disclose relevant information
 Professional Rule: Liability based of information typically
divulged
 Patient Rule: physician obligated to reveal all material risks
 Patient must prove that had she known, she (subjective) or a
reasonable person (subjective) would have foregone the procedure
 Attorney malpractice: cause-in-fact hard to prove, would you otherwise have won?

Duty in Negligence Cases: people who created risk have duty to prevent injury
 Nonfeasance: failure to intervene to confer benefit, generally NOT duty
o No duty to rescue except
 Created the peril
 Special Relationships
 Act and Reliance, promised aid
 Contract
o No duty to control except
 In special relationships (therapist)
 Supplier of liquor
 Negligent entrustment
o Duty to protect
 Except Landlords and arely, a business patron relationship
 Police have no duty unless created reliance
Land Occupier Duty: status of care depends on status of enterer
 Trespassers: Obligated to warn of manmade danger, child gets duty of ordinary care
 Licensees (like social guests): duty to warn of risk
 Invitees (business and public): possessor must take affirmative steps to discover danger
and warn. Standard of reasonable care
 Unitary standard in some states
 No duty to those outside the land by natural occurrences
 Landlord-Tenant duty in common area, negligent repairs, secret dangerous conditions, etc

Duty Limited by Kind of Harm

 Negligently inflicted emotional distress
o Some states require third party to have been within “zone of danger” or have been
close to the victim
o Very few still require physical manifestation of mental distress
 Wrongful conception: birth of a healthy child, damaged often offset by positive gain of
having child
 Wrongful birth: but-for negligence of information, the plaintiff would have terminated
 Wrongful life: claim of child, must jurisdictions don’t recognize
 Loss of consortium: one spouse recovers from damage to another spouse
 Wrongful death: statutory, relative suing for tortuous loss, recovery pecuniary only
 Survival Action: continuation of decedent’s action against tortfeasor
 Negligently inflicted economic loss:
o only allowed when lost wages or lost profits arising from physical injury or
property damage, not pure economic loss
o Usually concerns suppliers of information (accountants) – can be extended to 3rd

Cause-in-Fact: “But for”

 In redundant cases, “substantial factor” used instead of “but for”
 Shift burden of proof to defendant in cases of simultaneous conduct, hold jointly liable
 Market-share liability where brand cant be determine
 Medical uncertainty: “loss of opportunity to survive”

Proximate or legal cause

 Foreseeability Test
o 1. A reasonably foreseeable result or type of harm
o 2. No superseding intervening force (only when extraordinary)
 Egg-shell plaintiff personal injury rule
o Liable even if type of injury suffered not necessarily foreseeable
 Direct Test ??
o Caused injury without intervening force
 Practical Politics, rough sense of justice test (Justice Andrews)
 Restatement Test: uses substantial factor requirement considers
 o Number of other factors contributing to harm
o Whether defendant created continuous and active force??
o Lapse of time

Joint and Several Liability

 Joint Tortfeasors – each individual is fully liable, one responsible for the other’s share
o 1. Act in concert to commit a tort OR
o 2. Act independently but cause a single indivisible tortious injury OR
o 3. Share responsibility for a tort because of vicarious liability (employers)
 Some jurisdictions do allocations of liability based on comparative fault
 Condemnation/Indemnification: allows tortfeasor to switch blame to another more
culpable

Damages
 Nominal damages: symbol for liability but no harm proven
 Compensatory: for pecuniary and non-pecuniary loss
o Personal injury:
 Medical expenses
 Lost wages
 Other economic consequences caused by injury
 Pain and suffering
o Collateral source, some states have subtracted insurance awards
 Punitive: punish and deter egregious conduct (when committed with malice)

Defenses
 Contributory Negligence: plaintiff’s conduct which falls below standard for own
protection. Complete defense.
o Most states have replaced with comparative negligence: only partial bar to
plaintiff’s recovery (partial defense)
 Assumption of risk: complete defense 1. Plaintiff must know a particular risk and 2.
Voluntarily 3. Assume it
o Express Assumption: engage in risky behavior, contract, etc
o Implied Assumption: usually absorbed into comparative negligence
 Immunities
o Bars on charitable and spousal immunity have been lifted
o Parent-child immunity still exists
o Government is immune for discretionary functions but not ministerial acts

Strict Liability: without fault

 Injuries caused by animals unless
o Harm not foreseeable (known, should have known)
o Trespass by animals is confined to abutting land along highway
o Landowner was required to erect a fence by state law
 Abnormally dangerous activities
o Risk of great harm should safety efforts fail
 o Impossibility of elimination of risk of harm
o Injury or harm caused thereby
o Activity must be under defendants control
 Only plaintiff’s assumption of risk is defense, the fact that plaintiff may have failed to use
reasonable care is irrelevant

Products Liability
 Claims 1) a manufacturing defect 2) a design defect or 3) defect by inadequate warning
 Principal theories: 1) negligence 2) breach of one or more warranties 3) strict products
liability and 4) misrepresentation
 Defense: claim assumption of risk
 Negligence
o Foreseeability: known or knowable at time of manufacture
o Covers reasonable use or misuse by reasonable consumer
o Not enough just proof of defect,
o product changes cannot be used as proof
o Res ipsa loquitur allows plaintiff to shift burden of proof
 Strict liability of products
o Necessity of showing a sale and of showing a defect
o Question on pg. 59**
o Defect
 Consumer expectations test “foreign-natural”
 Risk/Utility Test – 7 prongs
 Hybrid Barker v Lull Engineering test
 1. Failed to perform safely when used in reasonable manner
 2. Product design proximately caused injury and defendant fails to
prove that benefits outweigh the risks
 Most jurisdictions state that you must prove there was safer,
technologically feasible, alternative ???
 Unavoidably unsafe product: liable if marketed without due care
 Duty to Warn: Liable if potential for injury is not readily apparent to user
o Negligence: seller has duty to warn
o Strict liability: reasonable man would not put in commerce had he known danger
o No duty w/ obvious danger (guns, etc)
o Applies to sellers and lessors but not repairers
o Continuous duty to warn
 Strict liability exists for misrepresentation
 Restatement (Third) Come back ???

Nuisance and Trespass

 Continuing nuisance if it could be abated at any time, statute of limitations tolled anew
 Permanent nuisance: no abatement applies, single statute of limitations\
 Private nuisance: unreasonable interference with use of property interest, only be brought
with current possessory interest in the property
 Both intentional and unintentional but negligent
  Public nuisance: interference with health or safety, etc
o Can be brought by public agency or from “special injury” private plaintiff,
different in kind from rest of public, including personal physical injury
o Economic loss applies only in certain cases
o Prospective nuisance
 Trespass
o Enters land, remains on the land, fails to remove something from land

Misuse of Legal Processes

 Malicious Prosecution, Malicious Institution of Civil Proceedings
o Wrongful prosecution of defendant in bad faith (must be acquitted)
 Abuse of Process
o Can be abused regardless of who wins decision