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Torts Study Outline
Intentional Torts
Battery
Intentional invasion of others right of personal security (social policy). Defendants acts
intentionally cause harmful or offensive contact with the victims person
1). Voluntary/Conscious Act
2) Intent to cause harmful or offensive contact or the imminent apprehensionof harmful or offensive contact
*Offends a reasonable sense of personal dignity*
Reasonable person in the same set of circumstances Is it socially acceptable?
a). Desire - Must act for the purpose of causing the resulting contact(cause the consequences of his act )
OR
b.) Knowledge H/O contact is substantially certain to occur
3.) Harmful or offensive contact ( directly or indirectly) occurs
o Harmful illness, physical injury results
o Offensive Not socially acceptable contacts (not offensive even though the
person turns out to be hypersensitive and truly offended)
o Use reasonable person standard person in the same or similarcircumstances (would they find the contact offensive?)
Prior conduct (relationship) between parties must beconsidered
Ex: Boyfriend-girlfriend: hugging, kissing
Co-workers: slapping on the back, joking around physically
Policy Rationale: Legal redress discourages wrongful contact and violent retaliation
Nuggets of info:
Motive With Intent, the motive is NOT relevant (even if good)
Motives for forming intent do not have to be rational
Intent does not have to be hostile or malicious
Mental Incapacity (makes difficult to prove intent element)
Mental incapacity (insanity) is irrelevant to forming intent
Must appreciate the consequences of their actions
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Social Policy: do not want people claiming insanity or mental
illness to defend their wrongful acts that cause damage to others .
Public Policy To enforce liability so that relatives of the insaneshall be led to restrain the insane person.
Majority of jurisdictions hold insane liable for their acts.
Children
o Children can form requisite intent
o Possible parental liability for torts of children
o Childs tort must be committed willfully or wantonly
o Damages to be obtained are capped at a very low amount (few thousand or
less
o Parents are not vicariously liable for torts of their children just by virtue of
being their parents (CL rule)
Examples of Battery:1). Touching, hugging, kissing someone who makes it clear that they do not wish the
contact.
2). Desiring a harmful/offensive contact such as falling, tripping, spitting
Examples that are not Battery:
1). Picking up package and accidentally dropping on someone
(intent is to pick up package, not to drop on someone).
2) Stepping off bus and knocking someone over
(intent is to step off bus, but not to knock someone over)
Transferred Intent
Intent to commit battery of one person and actually inflicts one on another
Intent transfers to other person actor still liable for injuries
Social Policy Reason not acceptable to exonerate just because wrongperson was affected by the battery (act)
Allows recovery where actor attempts one intentional tort but causes another
Intends battery but commits assault or vice versaEx.: Ted tries to hit Sally but misses and places Sally in apprehension of
the battery therefore, Ted commits an assault.
*Courts allow transfer of Intent between assault & battery, false imprisonment,conversion, and trespass to chattel*
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Assault
Defendants acts intentionally cause the victims reasonable apprehension of immediate
harmful or offensive contact. (*constitutes a touching of the mind, if not of the body*)
1). Voluntary/Conscious act (with purpose)
2). Intent: Acts to cause a H/O contact with the person or an imminent
apprehension of H/O contacta) Desire (must act for the purpose of the resulting imminent
apprehension of the H/O contact)
OR
b) Knowledge that H/O contact (battery) or imminent apprehension of H/O
contact (battery) substantially certain to occur
3). Contact: The reasonable apprehension of an imminent battery or imminent
apprehension of H/O occurs
*Only apprehension of immediate contact must be established*
Apprehension:
Must perceive (be AWARE) that harmful or offensive contact is about to happen.
Ex. If victim is attacked from behind or while asleep, there is no apprehension prior to
contact. Victim is not AWARE.
Can create apprehension without actual attempt to cause contact.
Ex. A has unloaded gun, but intentionally leads B to believe gun is loaded, assault has
occurred, even though A does not have intent or ability to shoot. A has created
apprehension to B of being shot.
Nugget of Info:
Defendants ability or inability to carry out threat is irrelevant (see above
example)
All that is required is that defendant intends that the plaintiff be apprehensive
of the contact Plaintiff REASONABLY believes that the threat will be carried out.
Imminent Apprehension
Not necessarily fear - in anticipation of, perception of
Without significant delay expectation of H/O contact is
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formed in the mind of a reasonable person.
Does not have to be immediate but within a short interval of time
Conditional Assault (Threats)
1)If the assault or threat is made based on the victims non compliance with thedemand, it is an assault.
Ex. If you dont sleep with me, I will shoot you.
If you dont give me all of your money, I will kill you.
2). If the actors threat (words) negate, or defeat the imminent assault, then there is noassault. Words indicate that actor does not intend to carry out the assault
Ex. If there was not a policeman here, I would smack you.
If you were not an old man, I would beat you silly.
Mere Words
Words alone do not constitute an assault because they do not show thedefendants purpose to cause immediate harmful or offensive contact
Defendant must produce a threatening act or motion to distinguish
between bluffing and aggression
Policy Rationale
Compensation
Purely psychological injury is compensable harm
Restrictive in what kind of psychological stress is allowed for compensation
Deterrence
Deter violent retaliatory response to unlawful attack
Encourages victims of attacks to refrain from behavior in excess of thatjustified by self-defense
Provides legal redress when apprehension of imminent attack allows a
legitimate privilege of self-defense
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False Imprisonment
When a person confines another intentionally without lawful privilege and against his
consent within a bounded area for any appreciable amount of time.
Intent to Confine
Without lawful privilege
Against his consent
Within a bounded area
For any appreciable time (however short)
Intent to confine
o Desire to confine requisite intent is merely to confine
o
Knowledge that confinement was substantially certain to occuro Mistaken identity is no excuse
o No personal malice, hostility, or desire to harm is necessary
o Good faith belief that confinement is justified is no excuse
o Directly or Indirectly causing confinement is immaterial
Requisite intent must be present
Confinement occurs: in a bounded area, restricted, limited freedom of movement
(restricted freedom of movement in all directions)
*not applicable to keeping someone out*
Bounded Area:
Can be a large area (even an entire city) Vehicle (even if moving)
Exceptions to False Imprisonment
If there is a means of escape (but victim must be aware of means ofescape)
Escape not reasonable if victim must be heroic, endure excessive
embarrassment or discomfort
Methods of confinement or restraint
Physical barriero Must surround in all directions so that there is no reasonable means of
escape known to the victim
Force, threat, or duress of goods of immediate force against person,
property, or family
Assertion of Authority
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o (real or perceived; doesnt matter if person doesnt have actual
authority as long a person being confined believes he does)
Refusal to Release (Omission of duty to act)
o Refusing to release from a once-valid confinement or aid in release by
providing a means of escape (duty to act)
Ex: A invites B out on his boat. B requests to go back to shore, A refuses;this is false imprisonment.
Awareness of confinement or suffer harm as a result
*Court says actual physical restraint not necessary*
False Imprisonment is a trespassory tort
Plaintiff can recover damages even if she sustains no harm
Actual harm is required if the plaintiff is NOT aware of confinement when
it took place
Ex. Someone drugs you and locks you in a trunk. You must show harm
from being drugged or locked in the trunk
Appreciable Time:
Length of time of confinement is irrelevant even a few seconds will suffice,
however, the length of confinement is relevant to establishing the amount of damages to
be awarded.
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Intentional Infliction of Emotional Distress
When the defendant by his outrageous conduct, recklessly causes the victim severeemotional distress even in the absence of physical harm
An intentional or reckless act
Of extreme and outrageous conduct (outside of normal societal bounds of conduct)
Cause plaintiff to suffer severe emotional distress
o Words may be sufficient (racial epithets)
o Intent need not be malicious (tasteless practical joker)
No transferred intent (general rule)
Exception: must be immediate family member who is present at the time& distress results in bodily harm
Exception to the exception: no need to establish presence or familial relationship
if it can be shown that defendant had apurpose to cause severe distress
Ex: Ex-boyfriend B calls ex-girlfriend C and threatens to kill new boyfriend N. B
then kills N
Insensitive, callousness or rudeness is insufficient; does not rise to extreme &
outrageous
Must consider the context of the relationship between the parties Highly subjective standard reason it is difficult to establish
Courts reluctant to recognize tort concerned about fraudulent claims
Courts will limit liability where outrageous conduct on the part of the defendant is
proved
Known Sensitivity of the plaintiff Eggshell skull rule will make defendant liable
o Eggshell skull hypersensitive or special sensitivity
Acting without regard that a high probability that severe emotional distress will
result
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Negligent Infliction of Emotional Distress
Must have caused some physical impact of the plaintiffs person (car, etc.)
Must have physical injury or physical manifestation of objective symptoms
Cannot recover for fright or shock alone
Must provide physical evidence resulting from shock
Must be medically diagnosable as an emotional disorder (if emotional injury)
Must suffer imminent apprehension of harm to himself (personal harm)
Ex. Mother sees her son get hit by car. Car doesnt touch her
Zone of Danger Rule
Guidelines for recovery
Courts guidelines
Plaintiff was located near scene of the accident vs. being at a distance
Shock must result from a direct emotional impact upon the plaintiff from the sensory &contemporaneous observance of the accident vs learning about it from someone else
Plaintiff and victim must be closely related
Dillon Test
Defendant only responsible for the damage that he caused
Defendant must owe plaintiff duty with respect to foreseeability
Person does not have to be in zone of danger
Policy Rationale
Serious mental distress with physical manifestations results in economic loss
From an accident-avoidance perspective, it deters culpable behavior
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Torts to Property
Trespass to Land
Unauthorized entry onto land of another or causing another person or object to enter the
plaintiffs land
Substantial Certainty that entry will take place
Must have intent
o Can still be liable for intentional trespass even if mistaken aboutownership/possession
o Can still be liable even if there is no intent to harm the land
Personal Entry
Causing an Object to enter the land (firing a bullet, throwing an object, driving a
car)
Damage is presumed do not need actual harm/injury to the land required
Transferred intent applies to trespass to land
Trespass is an interference with possession not ownership
Liable for trespass when lawful right of entry expires
o Ex. P visits S, S gets mad at P and tells him to leave; if P does not leave he isnow liable for intentional trespass
Plaintiff must have a possessory interest since tort is premised on an interference of the
right to use and the enjoyment of the land
Ex. Owner may be guilty of trespass if she leases property to another and
enters the property without consent of the tenant (tenant has temporary
possessory rights)
What constitutes Land
-Surface of land, below the surface, or the airspace above it.
-Ct presumes that subsurface space to height or depth that plaintiff makes
beneficialuse of it
Stringing wires over land for cable
Flying an airplane at low altitudes
Tunneling or digging under it
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Trespass to Chattel
Intermeddling with the chattel of another person that interferes with the plaintiffs right of
possession
Acting with intent to intermeddle with chattel & cause harm/damage (interfering
with; touching physically)
Total dispossession of chattel (stealing)
Substantial deprivation of use of chattel (not a momentary interference)
Dispossession (nominal damages) OK in context of dispossession if you dispossess but
give back because it is a trespass
o Dispossession consists of taking chattel from owners possession w/o his
consent or by fraud or duress, barring the plaintiffs access to the chattel or
destroying it while in the plaintiffs possession
o Defendant does not have to act in bad faith (maliciousness)
o Good Faith (in dispossession or harm) is not a defense
o Only requisite intent is (to act) required
o
Trivial interference is not actionable
Ex. A shoots Bs dog because he resembled a wolf. A is liable for trespass to chattel
(only intent to damage/kill is what is relevant; A is acting in good faith which is not a
defense)
*Liability and classification of Trespass to Chattel or Conversion is a matter of degree
(seriousness) Trespass to Chattel is just short of Conversion*
Liability is imposed if:
Possessor of chattel suffers dispossession or lost use
Chattel or possessor is harmed (to be compensable)
Liability is based on actual damage and not FMV of chattel
Reasonable mistake as to identity or ownership does not negate liability
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*Transferred Intent applies to Trespass to Chattels*
Conversion
Intent to exercise dominion and control over the chattel of another
Voluntary Act
A voluntary act by defendant with the plaintiffs right of possession in the chattel
that is serious enough in nature to warrant that the defendant pay the full value ofthe chattel
Dominion & control is inconsistent with the rights of the true owner
Intent
Intent to perform the act bringing about the interference to plaintiffs right of
Possession, but does not have to be wrongful or malicious
Causation
Interference must be caused by defendants act or set act in motion
Forms of Conversion
Wrongful acquisition of chattel (theft, embezzlement)
Wrongful Transfer (selling, mis-delivering)
Destruction of chattel
Misuse of chattel
Unauthorized Use of Chattel
Unauthorized Sale with intent to pass title
Refusal to surrender chattel to the true owner or possessor
Substantially Changing
Definition of substantial interference (according to ALI)
Extent and duration of control
Defendants intent to assert a right to the property
Defendants good faith
The harm done
Expense or inconvenience caused
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Intent with Regard to the Act
Mistaken Ownership is not a defense to Conversion
Innocent purchaser of stolen property is still liable for conversion
*The defendants are still intentionally acting to assert dominion & control*
Several Persons May Be Liable (Serial Conversion)
If A steals Bs watch and sells to C, then C refuses to return to B, then A may collect
from either one, but not both.
Bona Fide Purchaser
A bona fide purchaser is still liable for conversion (even if buying in good faith w/o
knowledge of the theft) if it is stolen from the true owner
Reason: The thief cannot sell anymore than what he has; likewise the purchaser cannot
buy anymore than the thief has which is NOTHING.
Subject Matter of Conversion
Personal Property
Intangibles reduced to physical form (i.e. promissory note)
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Defenses to Intentional Torts Privileges
Self- Defense
Privileged to use reasonable force to defend against harmful or offensive bodily contact and
against confinement.
Based on apparent necessity of self-defense
Applies to BATTERY, ASSAULT, AND FALSE IMPRISONMENT
Must reasonably believe that threat exists (can be mistaken and it still applies)
o Use objective/reasonable person standard
o Consider circumstances of event and past history of the parties
Can use reasonable force to forestall the attack
Reasonable Deadly force
Reasonable force necessary to prevent the harm - must not exceed threat posed Sexual attacks or attacks by force likely to cause death or serious bodily harm/may
respond with deadly force of your own but must be REASONABLE
Retreat
Defendant is not required to retreat or otherwise avoid the need for self-defense.
Some states require reasonable retreat before using deadly force if there is a safe
and reasonable means of escape Minority view
Exception: in own dwelling
Excessive Force
Privilege only covers REASONABLE force!*
Any defendant may not RETALIATE or continue a defense after the fight is over. (or there is no
longer a threat of injury)
Provocation
*Provocation is not sufficient to raise self-defense privilege
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Insults, Arguments
Unlawful Arrest
May use self-defense to resist Unlawful arrest
Defense of Third Persons
May generally defend as though you are defending yourself
Defense to False Imprisonment
Shopkeepers Peril
If shopkeeper suspects someone of shoplifting, shopkeeper may assert
privilege and detain IF:
There is a reasonable belief as to fact of theft (probable cause)
Detention must be done in a reasonable manner using non-deadly force
Detention must be for a reasonable period of time and only for purpose of
Investigation.
Reasonableness lays a significant role because we want people to resort to court rather than
self-help or vigilante justice
Defense of Property
General Rule: Privilege to defend property (land & chattels) as right to defend himself
May only use reasonable force to protect property
Inhabitants safety must be threatened
Deadly Force:
Trespasser must be committing a felony of violence or felony punishableby death
Trespasser is endangering human life by his act.
Mechanical DevicesIf property owner would not do it directly, then he cannot do it indirectly by
a spring gun or other mechanical device unless a felony is being committed
Non-Mechanical
Barbed Wire, broken glass must post notice
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Social Policy Justification: Value of Human life outweighs the interest of a possessor of
land in asserting exclusion rights.
Necessity
Defense that allows the defendant to interfere with the property of an innocent party in
order to avoid a greater injury. The act is justified because the behavior minimizes the
overall loss
Public Necessity:
Privileged to harm property if the class of persons being protected is the public as a
whole or a substantial number of persons.
Actor is not liable for damages
Private Necessity: When harm to property is protecting ones own interests or those of a few private citizens
Actor is liable for damages
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Prudent to avoid reasonably foreseeable risks of harm
Foreseeability is not measured by what is more probable than not, but that includes
whatever is likely enough in the setting of modern life that a reasonably thoughtful person wouldtake account of it in guiding practical conduct
Standard of Reasonable Care- Responsibility to act in a particular way Avoid injuring others by carelessness
One Standard of Care: Reasonable Care
o Standard of care does not change
o Degree of care changes proportionate to the danger of the activity
Care that is proper under the circumstances
Reasonable Person Standard- what a normal person would do in the same or similar
circumstances to avoid reasonably foreseeable risks of harm
common sense, sound judgment, ordinary prudence
considers foreseeable risk of injury
considers extent of risks by conduct
considers likelihood of risk actually causing harm
considers cost of various courses of action
considers whether there are alternatives to proposed conduct
Wholly objective standard
Assumed to possess the general experience of any member of the community
Knowledge and understanding generally held by the community
Emergency Situations
Jury may consider defendants reasonableness acting under emergency conditions
Physical Conditions
Easily measured; perceived as tangible
May be taken into account by jury; does not mean exoneration
Mental Conditions
Irrelevant for purposes of negligence liability
Public Policy Rationale: Mental disability too hard to measure; easily faked
Superior Knowledge, Skills, Abilities
Standard of care does not change But is required to exercise the superior qualities in a manner reasonable under the
Circumstances
Children
Held to standard of comparable conduct to other children of same age, experience,intelligence
Exception: If engaged in an adult activity, child is held to adult standard
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Role of Custom (Deviation or Compliance)
Evidence of compliance or breach of custom is admissible as evidence
Custom evidence does not establish breach of duty
Standard of care remains unchanged
May suggest some degree of probability/forseeability of harm Deviation from custom may suggest breach of duty
Compliance with custom may show lack of breach of duty
General custom and usage is admissible because it tends to establish a standard by
which ordinary care may be judged even where an ordinance prescribes certain
minimum safety requirements which the custom exceeds
Negligence Per Se
An actor is negligent if:
Violation of a statute
Statute is designed to protect against the type of accident the conduct causes
Victim is within the class of persons that the statute is designed to protect
Compliance does not establish due care
Causal Link
Must still prove that violation of the statute is the cause of the harm
Ex: Causal Link Prescription pills with no insert (must have insert per statute).
Plaintiff takes pills w/o warning notice and dies
Defendant must prove that plaintiff would have still taken pills because she does not
usually read the warning anyway.
Defendant is not causal link because if Plaintiff does not read insert anyway, despiteDefendants omission of the insert or inclusion, Plaintiff still would have taken the pills.
Licensing Statutes
Most courts will not invoke negligence per se in this context
Will not use licensing statute as standard of care
Licenses statutes are to protect public from lacking requisite skill (of driving)
Plaintiff would have to prove lack of ability to recover
Non-Adoption of Statute by Judge
Does not bar Plaintiffs recovery
Proceeds under reasonably prudent person standard of care
Adoption of Statute by Judge
Statute replaces the usual reasonable prudent person standard of care
Jury role is limited
Jury only needs to find that statute was violated
Plaintiff must still prove other elements of negligence
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Excuses to Exclude Violations
Violation is reasonable because of actors incapacity
Actor knows nor should know of the occasion for compliance
Actor is unable after reasonable diligence or care to comply Actor is confronted by an emergency not due to his own misconduct
Negligence: Breach of Duty
The Risk Calculus All conduct creates some risk
Need not take all possible measures to avoid all possible risk
Negligence liability when defendant engages in unreasonable risk
Effect of technology conduct not negligent may become unreasonable when reasonable
means to lessen danger become available
Assessment of Unreasonableness Judge Learned Hand
Likelihood that conduct will injure others
Seriousness of injury if it happens
Balanced against interest which he must sacrifice to avoid the risk
Balancing Test Hand Formula
B = Burden that defendant would have to bear to avoid the risk
P = Probability that harm will occur from defendants conduct
L = Gravity of the Potential injury (magnitude)
B < PL
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Res Ipsa Loquitur
The Thing Speaks for Itself
An accident that normally does not happen without negligence; exclusive control of the
instrumentality by the defendant; and absence of voluntary action or contribution by the
plaintiff
Two forms of evidence of Negligence Breach of Duty
Direct Proof of Breach
No need to draw inferences
Evidence from personal knowledge or observation
Eyewitnesso Credibility and Reliability
Videotape
Circumstantial Proof of Breach
Must draw inferences from other facts to have probative value
Res Ipsa Loquitur
No direct evidence of the defendants behavior in connection with the event
Circumstantial evidence that permits the drawing of inferences (Indirect Means)
Jury may infer that defendant acted unreasonably without other proof
Plaintiff seeks to establish
The harm-causing event was probably due to negligence
The defendant was probably the culpable party
Must establish by a preponderance of the evidence the res ipsa Loquitur elements or case
will probably not get to jury
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Does not have to eliminate all other causes of harm; even if defendant raises possible
non-negligent causes
Special Case
Ybarra v. Spangard
Court allowed plaintiff to sue several defendants who had control over hisbody during the surgery
Plaintiff was unconscious and became aware of an injury after surgery
Court allowed Res Ipsa to flesh out the guilty party
Court felt that all defendants had control over the body or instrumentalities
that caused the injuries
Cause in Fact (Actual Cause)But-for Causation
But For test
Injuries are actual, factual result of the defendants actions
Plaintiff must establish that but for the defendants actions, he would not have
suffered harmSine qua non without which it is not; an indispensable requisite
Injury would not have happened without the defendants act
If the outcome is the same WITHOUT defendants negligence, then defendant is notthe but for cause of injury
Plaintiff has the burden of proving the but for cause of his injuries
May have more than one but for cause for injury
But for test may not satisfy actions of multiple negligent actors
Substantial Factor Test
When the but for test does not satisfy the causation elementWhen two events would have been sufficient by itself to bring about the harm
Usually when there are multiple actors (redundant multiple causes)
Indivisible Injury
Jointly & Severally liable
Shifting the Burden of Causation
When both defendants are negligent breached duty of care
Defendants must prove that they are not the but for cause of plaintiffsInjuries
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suffered.
Takes effect after the defendants negligence and contributes to the negligence producing
plaintiffs injury
Rescue Doctrine
Danger invites rescue Rescue is foreseeable as a matter of law
The wrongdoer may not have foreseen the coming of a deliverer, but is
accountable as if he had
Rescuer can recover from the defendant whose negligence prompts the
rescue
Where the defendant negligently injures or endangers himself and theplaintiff is
injured in the rescue
Defenses to Negligence
Contributory/Comparative Negligence
Joint & Several Liability
Joint Tortfeasors
2 or more individuals who act in concert to commit a tort
Aids or encourages another in committing a tort
Just as liable as one committing the tort Act independently but cause a single indivisible tortious injury
Plaintiffs entire injury must be attributable to the negligent acts of both
tortfeasors
Share responsibility for a tort because of vicarious liability
Employers may be held liable for negligence of employee/agent
Each individual is fully liable to the plaintiff for the entire damage award
joint & severally liable
Plaintiff may seek from one or all, but not multiple damages
Can look to one defendant for the entire amount
Allocating Fault Among Joint Tortfeasors
Traditionally a pro-rata share
Been replaced by comparative fault
Liability is divided by proportion of responsibility each defendant bears
Strict liability require solvent defendants to pay defaulting dependantsshare
Some make plaintiff absorb the loss in addition to their comparative
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Fault
Assigning Shares of Responsibility
A). Nature of persons risk-creating conduct Includes awareness or indifference
Risk-Creating Conduct
Unreasonable conduct under the circumstances
Extent to which conduct failed to meet applicable legal standard
Circumstances surrounding conduct
Each persons abilities/disabilities
B.) Strength of cause between each persons risk-creating conduct and the harm
Timing of each persons conduct in causing the harm
Comparison of risks created by the conduct Actual harm suffered by the plaintiff
Contributory Negligence
Traditionally
Complete bar to plaintiff recovery must be cause in fact & proximate to bar
Standard of conduct on part of plaintiff which falls below the standard he should conform
to for his own safety
Uses reasonable person standard
Victims have responsibility to mitigate their injuries
Wear seatbelt/helmet even though they dont contribute to defendants
negligence
Last Clear Chance Doctrine
If Defendant is negligent after the plaintiff, plaintiffs negligence is ignored
Plaintiff can receive complete recovery
Comparative Negligence
Pure Comparative
Can recover some percentage from liable defendant regardless of extent of their own
Negligence
Modified Comparative Negligence
Partial recover up to plaintiffs level of culpability for her own accident
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Greater than 50% Approach
If plaintiff more than 50 % negligent than defendant, there is no recovery
50% or Greater Approach
If greater than or equal to 50% negligent than defendant, there is no recovery
Slight Negligence
South Dakota
If plaintiff negligence is slight there is some recovery, otherwise recovery is barred
Comparative Vs. Contributory
Comparative allows for a more equitable allocation of responsibility for injuries
Contributory usually bars recovery
Assumption of the Risk
Plaintiff must
Have knowledge of a particular Risk
Subjective standard
Must voluntarily expose herself to the risk
Assume the Risk
Express
By Contract explicity agrees to accept risk
Invalid as a defense when contrary to public policy
Implied
By plaintiffs conductReasonable
Usually a complete defense
Unreasonable
May overlap into contributory negligence
FireFighters Rule
Preclude recovery for injuries that they are compensated to address
Public Policy
May discourage negligent individuals from seeking assistanceMay be absorbed into comparative fault
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Torts Notes Week 14
Carriers, Host-Drivers & Landowners
Duty of Landowners
Owes no duty to licensee or trespasser except to refrain from willful, wanton orreckless conduct which is likely to injure him
Owes no duty to anticipate or prevent the presence of licensees or trespassers
When trespasser or licensee is discovered in a position of peril, a landowner is
required to use ordinary care to avoid injuring him.
Duty of care arise after the landowner knows or from facts within his knowledge
should know or believe that a trespasser or licensee is on the land
Classification of Entrants
Trespasser
Person who has no legal right to be on anothers land and enters the landw/o express or implied consent of the landowner
Duty owed: no duty of reasonable care owed only avoidance of willful,wanton, intentional injury
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Frequent/Known Trespasser
If approaching a non-evident or artificial condition, he land occupier is obligatedto warn the trespasser if there is a danger of serious bodily harm or death
Invitee:
An invitee is any person invited on the premises for the pecuniary benefitof the landowner or on the premises held open to the general public
Business invitee
Public Invitee
Duty owed: Reasonable care
Licensee: Person on the land with permission but with a limited license to be onthe premises (Ex. Trick or treater)
Duty owed: no duty of reasonable care owed only avoidance of willful,
wanton, intentional injury
Duty of Care Owed to Children