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Intentional Torts.

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  1. Intentional Torts
  1. Angry Boys Frequently Initiate Terribly Tense Conflicts


  1. A voluntary act committed with wrongful intent that causes someone to suffer some legally forbidden harm
  1. General Elements: Violent Idiots Always Create Havoc
  1. Voluntary Act
  1. A voluntary act is an act initiated by the actor’s chosen bodily movements and is not controlled by the bodily movements of another person or thing.
  1. Wrongful Intent
  1. Desire to cause a forbidden harm, or knowledge to a substantial certainty that some forbidden harm will result from the act. 
  2. Intent Policy Exceptions
  1. Proactive Mistake
  2. Transferred Intent
  1. Problem People
  1. Generally
  1. Must desire/know the harm caused by their conduct
  2. But don't need to have intended that actual harm will have resulted
  1. Examples
  1. Adults with Mental Incapacities
  2. Children
  1. Case: White v. Muniz
  1. Policy
  1. Recovery of costs
  2. Encouraging better caretakers
  1. Causation
  1. But-for the act, there would not be the harm the actor is supposed to be liable for 
  1. Forbidden Harm: Defined by Each IT
  1. Specific Intentional Torts
  1. Harms to Persons
  1. Battery: 1)voluntary and 2) intentional act 3) that causes 4) harmful or offensive contact 5) with another person
  1. Voluntary affirmative act
  1. Includes directing other people
  1. D telling masked men to attack P 
  1. Intent
  1.  Dual Intent- to act and act was harmful or offensive (majority)
  2. Single intent- to act only just contact (minority)
  3. Need not be malicious or hostile
  1. A practical joke or horseplay
  2. Welder puffing oxygen at P's crotch 
  1. Know to a substantial certainty result will occur

Mental incapacities or children may make intent more difficult to prove

  1. Transferrable Intent
  1. Intending to harm person A, but instead harm person B, still liable for battery
  1. Hall: A shoots at youth brandishing gun, misses, and hits neighbor
  1. Intent will transfer to any of the other intentional torts to complete the battery (FI, assault, trespass to land & chattels but not IIED)
  1. Proactive Mistake
  1. Does not intend to commit harmful act, but will be treated as such b/c of failure to investigate
  1. Policy: discourage dangerous, rash acts; encourage investigation
  1. Hunter who mistakenly shoots a dog thinking it's a wolf
  1. Causation / Volition
  2. Harmful or Offensive Contact
  1. Harmful =  pain or physiological change to a person's body
  2. Offensive
  1. Reasonable person in the plaintiff's position
  2. Nature of act (e.g. spitting)
  3. Context 
  4. Takes into account plaintiff's known sensitivities. 
  1. To a person 
  1. Closely associated to the body (e.g. knocking off a person's hat)
  2. The person's immediate sphere of influence.  (e.g. slapping a horse that P is on.)
  1. Interest protected: Protects bodily integrity, moral sphere of influence around the body
  2. Policy goal of preventing: 
  1. Retribution between parties, revenge
  2. Breaches of the peace
  3. Parties from engaging in aggressive acts that invite violent response
  1. DeRouen:  Um, My Groin is On Fire
  1. Didn’t have to know that the fire would result to satisfy battery, or intend injury, just needed to intend (that is, desire, or have KSC) to cause offensive bodily contact (O2 hitting co-worker’s body). 
  1. Limiting Factor:  Statute of Limitations
  1. Gives people freedom from fear of lawsuits many years after the fact
  2. Memory is a factor:  evidence dries up
  3. Ps could wait for a precedent case and then file suit to capitalize on long past incident
  1. Dickens v. Puryear:  Yeah, but He Told Me To
  1. Liable for batter for cutting P’s hair and because he directed Mask men to beat P up. Masked men were extension of D, same way as D would be liable for TL if dog entered another’s property. (conspiracy between him and masked men too)
  1. Assault: 1) voluntary and 2) intentional act 3) that causes 4) another person 5) to be placed in a reasonable apprehension of battery or false imprisonment
  1. voluntary
  2. intentional act
  3. causing
  4. Reasonable Apprehension
  1. intentionally aggressive conduct that may cause someone to react violently
  2. awareness of an impending contact or restraint
  3. threat must be imminent (future threats of harm =/= assault)
  4. does not require fear
  5. goes back to policy protection of dignity:  violation of your peace of mind is violation of your dignity
  6. acts or gestures (possibly accompanied by words) that would cause a reasonable person to believe contact or restraint is imminent;  usually must be an overt movement from D
  1. of battery or false imprisonment
  1. Known Sensitivity Exception
  1. Even if a reasonable person wouldn’t be afraid of a given thing/act, if D exploits D’s particular fear, they have a right to protect their rights
  1. D, knowing that P has severe arachnophobia, puts a very plastic tarantula on P’s desk
  1. IIED: 1) extreme and outrageous conduct 2)which intentionally or recklessly 3) causes 4) severe emotional distress
  1. Outrageous, extreme conduct
  1. Tests
  1. Would cause a reasonable person to say, “Outrageous!”
  2.  Utterly intolerable in civilized society
  3. Atrocious
  4. Beyond bounds of decency
  5. The more outrageous the conduct, the more it can go to confirm ED. 
  1. Factors
  1. Relationship between parties
  2. Abuse of power
  3. Potential for exploitation
  4. D’s power
  5. P’s vulnerability
  1. Is P in extremely susceptible state?
  1. D’s motive
  1. Malice
  2. Exploitation of P
  1. Context:  time and place
  1. Case: Brandon
  1. Intentional or Reckless conduct
  1. Recklessness would mean a lower level of intent – less purposeful than intentional
  2. knowledge to high probability that actions will cause severe ED
  1. this is lower standard than KSC
  2. necessary because insults are subjective; hurling an insult is not as clear-cut as hurling a rock
  1. NO transferred intent
  1. E.g.:  wife is in back room of store, sees robber assault her husband.  Robber has no intent towards the wife (doesn’t know she’s there), but there is reckless infliction of ED.  Relationship between robber’s intended victim and inadvertent ED sufferer (bystander wife) is key:  the closer they are (husband/wife) the greater the chance of ED.  Immediacy (physical proximity) of unintended victim is also key.
  2. Bystander:  witnesses harm to another, not at risk of physical harm himself (IIED + scene of crime)
  3. For strangers: a bystander not related to D’s direct victim must prove that he (bystander) was
  1. Present at the scene
  2. Suffered physical harm from the experience
  1. D has KSC that a bystander likely would be present
  1. Causes
  2. Emotional Distress 
  1. so severe that no reasonable person could be expected to endure it
  1. Policy:
  1. Problems
  1. Injury is subjective
  2. Hard to prove
  3. Risk of fraud is higher than with, say, a broken leg
  4. Financial liability could far outweigh fault
  5. Possible “floodgates” of litigation
  6. Definition as “severe” “extreme” and outrageous” is meant to address policy concerns, limit class of Ps and Ds
  7. Utility – fills in gap in tort of Assault.  In IIED, threat itself can be devastating enough to support cause of action
  1. Proofs
  1. Physical manifestations of ED
  2. Medical testimony (psychiatrists, experts, etc.)
  3. Lay Testimony (family and friends who can testify to a change in P as a result of the incident)
  4. The more outrageous the conduct, the more it goes to prove ED; outrageousness itself can be proof of ED
  5. P exhibits change in behavior, interruption of normal activities demarcated by the event
  1. False Imprisonment: 1) voluntary and 2) intentional act 3) that causes 4) an actual or reasonably apparent confinement or restraint
  1. Voluntary
  1. Hypo: P consents to ride in D’s car. After P enters the car, D locks the doors for safety. D and P then argue. P asks to get out and D refuses to unlock the doors. Failure to release P is FI.
  1. Intentional act           
  1. Proactive mistake
  2. Transferred intent
  1.  Causes
  2. P’s actual or reasonably apparent confinement or restraint (P usually required to have knowledge of this)


  1. Physical boundaries
  2. Physical restraint
  3. Imminent physical threats (body/property)
  4. Authority
  5. Immobilization
  1. E.g.  P goes camping with buddies to remote national park.  He has two broken legs in hip casts, and crutches.  Buddies take off in the night and leave P, taking his crutches with them.  FI, since P is immobilized (can only crawl, not a reasonable mode of transport) and isolated (in middle of national park
  1. Isolation
  1. Tests for confinement or restraint: a person is not confined or retrained when she has a reasonable means of escape. When is an escape reasonable?
  1. No/little risk of harm        
  1. “leave and I’ll kill your mother!”
  1. Would be expected if no/little risk to another person
  1. No little risk of humiliation
  2. No little risk to valued property
  3. Restricted access is NOT confinement
  1. A prevents B from entering home. B still has access to the outside world
  2. Cockrell: P was suspected of shoplifting and taken into a back room where security made him undress and search him. P did not have a reasonable means of escape and D did not use reasonable means to investigate (asking to drop pants and remove bandage was excessive)
  1. Shopkeeper’s privelege: 1) reasonable belief 2) reasonable means
  2. Policy: This jurisdiction placed burden on P because they wanted to protect businesses
  1. Harms against property
  1. Trespass to land: 1) voluntary and 2) intentional act 3) that causes a 4) tangible entry onto real property of another
  1. Case: Creel v. Crim: Lovelady direct Creel to cut down trees on land that turned out were Crim’s.
  1. Indemnity: Where D1 (Lovelady) must fully reimburse D2 (creel) for all damages D2 must pay to P(Crim)
  1. Culpable D1 must full reimburse inculpable D2
  1. Voluntary
  1. Creel: Voluntary entered property despite Lovelady directing him
  1. Intentional act
  1. Watch for Proactive mistake
  1. Creel: Lovelady directed Creel to proactively, but mistakenly enter Crim’s land w/o consent, both are treated as having the intent to trespass
  1. Causation
  1. But-for causation:
  1.  Creel: but for Lovelady’s order to cut down trees, Creel would not have entered
  1. Tangible entry
  1. Direct challenge to right of property
  1. Generally trespass requires entry of tangible thing (person, animal, or property
  2. Protects exclusive possession rights of property
  3. Exception: Environmental Trespass
  1. Bradley v. Am. Smelting (You got Smelt on My land!): Particle emissions blew over to land and accumulated.
  2. Tangible effect 🡺 accumulation of particles
  3. P may recover if 1) D intentionally spreads pollution on P’s land 2) the pollution tangibly accumulates 3) causes 4) foreseeable and substantial damage to land
  1. Minority rule and possibly the start of a new trend
  1. Nuisance: protecting use and enjoyment rights (noise, odor, light, etc.)
  1. Requires substantial and unreasonable interference w/ enjoyment
  1. May include: D entering, D pushing unculpable A, causing an object to enter, remaining on property beyond allotted time, exceeding consent, failure to remove things left on property
  1. Onto real property
  1. Surface area (home, yard, roof, etc.)
  2. Airspace within the “immediate reaches” of the grounds (used and occupied by owner/possessor) < 1000 ft
  3. Subterranean ground space used & occupied by owner/possessor (well and aqueduct)
  1. of another
  1. Trespass claim may be asserted by:
  1. Owners of real property
  2. Lawful possessors of real property (renters and leasees)
  1. Trespass To Chattels (personal property/slight interference)
  1. Trespass to Chattels: 1) a voluntary and 2) intentional act 3)that causes 4) an intermeddling with or dispossession 5)of personal property of another
  1. Voluntary act
  2. Intent
  3. Causation
  4. Intermeddling or dispossession
  5. Of another
  1. Intermeddling
  1. Types:
  1. The impairment of condition, quality, or value of property that causes P actual harm
  1. HYPO: D throws paint on P’s 50k car; P pays 2k to remove paint
  2. Value loss by out of pocket expense to repair car
  1. Deprivation of use of the property for a substantial period of time which causes P act which CAUSES P ACTUAL HARM
  1. HYPO: P loans his lawnmower to D for a day. D keeps it for an extra week despite P asking for it back
  1. Consequential damages may be rewarded
  1. The infliction of bodily harm to P or anything in which P has protected interest which causes P actual harm
  1. HYPO: D steals a bottle of P’s drugs. Lack of medication causes P to faint and hit his head
  1. Damages
  1. P must prove ACTUAL damages
  2. Damages typically are measured by the reduced value of P’s property
  1. Other measures: Rental value, repair cost (up to current value of property)
  1. Dispossession
  1. An exercise of dominion and control over property that excludes the rights of others to own or possess the property
  1. E.g: D deliberately but mistakenly takes P’s coat; D discovers the mistake an hour later and returns it to P
  1. D had the intent to take and keep it even if it was a proactive mistake. D would defend property if P came after him.
  1. Effect:
  1. P may recover nominal damages without proof of actual harm
  2. Intermeddling🡸==============🡺Dispossession
  1. CASE: Compuserve (stop Sending me SPAM!): Cyber sent CS’s customers massive amounts of spam hindering their servers and memory. CS implemented screening software to combat problem but customers still canceled. CS won on trespass to chattel claim
  1. Accumulation of spam created negative effect, Intermeddling occurred because there was impairment and a deprivation of use
  1. Conversion (serious interference and entitled to full value or forsale of property)
  1. Conversion is a 1) voluntary 2)intentional act 3)that causes the actor 4) to exercise dominion and control over 5)another’s property such that the other suffers a serious interference with property.
  1. Voluntary
  2. Intent
  3. Causation
  4. Dominion and control resulting in serious interference with personal property of another
  1. Serious interference        
  1. Factors (1-3 D’s actions; 3-6 P’s)
  1. Extent and duration of Ds exercise of dominion and control (short duration could be TC)
  2. D’s intent to assert a right in fact inconsistent with the other’s right of control
  3. D’s good faith?
  4. Extent and duration of resulting interference with other’s right to control
  5. Harm done to the chattel (has to be damaged beyond all repair)
  6. Inconvenience and expense caused to P
  1. Privileged Defenses: Justify D’s conduct and P may not recover
  1. The Needy Can Reasonably Stop Dastardly Deeds
  2. Consent
  1. 1)actual or reasonably apparent 2)voluntary choice 3)to submit to the conduct of another
  2. Actual Choice
  1. Subjective standard that requires a KSC of the conduct and its consequences
  2. Volition
  1. P must choose using her own free will and MUST NOT be coerced or deceived
  1. Means of Expression
  1. Subjective consent may be communicated by: Words, writing, or actions.
  1. Consenting to surgery, and then being unhappy with results is still consent
  1. May also be communicated by an authorized representative
  1. Guardianship: Mother signing consent to child’s surgery
  1. Reasonably Apparent Choice:
  1. Objective standard
  1. Silence or inaction may create a reasonable appearance of consent
  1. Kissing a girl while at lover’s lane
  1. Acts in context may create a reasonable appearance of consent
  1. Waiting in line for flu shot but got in line for tetanus shot
  1. Consent may be implied by community norms or customs
  1. Doctor gives patient w/ severe cuts antibiotic injection
  1. Scope: D’s conduct must fall within the scope P’s consent. If D’s actions exceed P’s consent 🡺 privilege fails. Factors include:
  1. Time: Open house from 1-4 and D comes at 7: No Consent
  2. Place: Entering a room that says “Employee only.”
  3. Person: Getting a massage from an unlicensed person after switch
  4. Type/Purpose of Conduct: Biting Mike’s ear during a boxing match. Consented to fighting, but no purpose of biting.
  5. Hellregel (Horseplay/Neck): Friends grabbed a P attempting to throw him in lake and P became seriously injured. P desired to engage in horseplay (sub.) and P’s conduct would cause  reasonable person to believe P consented to horseplay (obj.). Person Engaging in horseplay accept risks of accidental injury therein.
  1. Nullified Consent
  1. P giving consent can be nullified if given through:
  1. Fraud/misrepresentation
  1. Hogan (STD-Sex): Wife consented to sex, but not to be infected.
  1. D’s knowledge of P’s incapacity and Physical Duress
  1. Reavis (Bad Dentist!): D-Dentist fondles and has sex with P-assistant for many years. Took advantage of her economic situation(economic duress) also psychological problem.
  1. Was there an abnormality? And did D know about it? If he did🡺 liability and no consent
  1. Conduct Violating public policy
  1. Consent to a shootout and someone gets shot (consent nullified)
  2. Having “consensual sex” with a minor
  1. Reasonableness Privileges: 1)D must have a reasonable belief her rights are in imminent danger 2) D must use reasonable force to defend her rights
  1. Self Defense
  1. A person who 1)reasonably believes an act will cause her imminent bodily harm, offensive contact, or restraint, may use 2)reasonable force to defend herself against that act
  2. Reasonable belief
  1. Mistake
  1. Belief may be reasonable even if mistaken
  1. HYPO: “Give me all your money or I’ll kill you” as P reaches in pocket, but P does not have a gun
  1. Context: Provocative words and acts
  1. Reasonable belief is assessed by all surrounding circumstances; Words alone generally do not create a reasonable belief
  1. Bradley (get out of my café!): Screaming drunk threatened old lady and she shot him (he was big, previously threatened her, and had had history of violence)
  1. Instigation & Abandonment
  1. Instigators do not have self-defense privilege unless he clearly abandons the aggression
  1. Juarez (Dump a beer on you while you sleep): Deans started fight and P defended himself. Moving back after P jumped from bed is not abandonment
  1. Retreat
  1. Majority: the possibility of safe retreat does not prevent a reasonable belief in the need for a defense. There is no duty to retreat from any level of force especially in one’s home
  2. Minority: One must retreat from deadly force if the retreat can be accomplished w/o significant risk
  1. Reasonable Force
  1. Proportionality Test
  1. Force is reasonable if it proportional to the force it seeks to stop
  2. Factors: Age, strength, reputation for violence, special skills, weapons
  1. Defense of Others
  1. A person may use 1) reasonable force to defend others against an act that she 2) reasonably believes will cause others imminent bodily harm, offensive contact, or restraint
  2. Reasonable belief
  1. Seeing a student pull a “gun” on another, and teacher shoots student. Gun was fake.
  2. Contrary view:
  1. Requires that the others posses right to self-defense. If other is a tortfeasor🡺 Intervener may be liable even if he had a reasonable belief. Forces people to think before acting to save others
  2. Policy: Do we want to encourage people to help others?
  1. Reasonable force
  1. Defense of Real & Personal Property
  1. A person may use 1)reasonable force to defend her real property or personal property against intrusion or interference if she 2)reasonably believes such an intrusion or interference is imminent or ongoing
  2. Reasonable Belief
  1. Request/Inquiry
  1. Hypo: D sees P take his luggage, D sneaks up behind P and snatches it, ripping it in the process.
  2. Generally, One must request noninterference or return if it is reasonable to do so. Want to encourage inquiry.
  3. Do not want invasion of space just to get property
  1. Reasonable force
  1. Non-deadly force:
  1. Hypo: D restrains from getting her purse stolen and P falls breaking his ankle
  1. Non-deadly force is reasonable if proportionate under the circumstances.
  1. Deadly Force
  1. Deadly force is generally unreasonable unless there is a breach to inhabited dwelling or exposes a person to serious bodily harm        
  1. P trespasses on property and D shoots in air to scare him off
  2. May use minimal amount of force in certain circumstances
  1. Automatic devices and traps
  1. Katko (Shotgun trap to the leg): D setup a shotgun trap to defend old barn.
  1. Generally, such devices are not permissible unless D could have used the same force in person
  2. Exceptions if force is moderate or controllable: trained Dogs, barbed wire?
  1. Recapture of Personal Property
  1. Self Help
  1. An ordinary citizen has a right of recapture if she 1) actually has a need to do so 2)correctly directs her effort against the actual possessor and 3) proceeds in hot pursuit of the taker
  2. Reasonable force
  1. Request first if possible
  2. Force proportional to resistance (recapture of property can turn into right of self-defense if person resists and uses force)
  1. Judicial
  1. Replevin Action (Law prefers this)
  1. If P can identify the chattel, she may sue to recover it, under the following procedure
  2. P posts bond (compensation for D if P is wrong)
  3. Preliminary hearing held
  4. Sherriff seizes property or d delivers into court
  5. Ownership adjudicated
  1. Shopkeepers Privilege
  1. Reasonable belief (probable cause)
  2. Reasonable force used
  1. Necessity
  1. Person must 1)reasonably believe she or others face an imminent risk of serious harm and she must use 2)reasonable force to prevent that harm
  2. Public Necessity
  1. When many people are exposed to an imminent danger of serious bodily harm or property damage
  1. Surocco v. Geary: D explodes P’s house to save neighborhood from fire
  2. Beneficiaries
  1. Public officials or private citizens
  1. Effect
  1. D receives complete immunity; P barred
  2. Burning the home, D would not be liable
  3. What about the people who suffer the detriment?
  1. Private Necessity
  1. When privileged holder is exposed to an imminent danger of serious bodily harm or property damage
  2. Cases:
  1. Vincent (Screw your dock!): D moored boat at expense of the dock. Has right to keep boat there, but must pay resulting damages of the dock.
  1. Policy: unjustly enriched by keeping boat at expense of another’s property
  1. Eilers (Cult!!):
  1. Did not have to FI (P), there were other reasonable, less invasive alternatives (calling cops, institutionalizing him, counseling)
  1. Rossi: (Run from dog!):
  1. Had reasonable belief that it was necessary to trespass onto P’s land avoid to avoid dog
  1. Effect:
  1. D receives partial immunity but P may recover damages
  1. Negligence
  1. Is unreasonable conduct that causes another person harm (presumptively lawful conduct that P may prove is wrong)
  1. Mental state
  1. Conduct that imposes upon others a 1)foreseeable and 2)unreasonable risk of harm
  1. Forseeable < KSC
  2. D’s knowledge of risk may be 1)actual/subjective or 2)constructive/objective
  1. Elements (Do Be Careful Dummy)
  1. Duty
  1. Legal relationship that obligates D to exercise some care toward P
  1. Breach
  1. D has violated the specific standard of care required by duty
  1. Causation
  1. D’s breach was factual and proximate cause of P’s harm
  1. Damages
  1. P’s harm resulted in actual damages
  1. DUTY
  1. Ordinary Negligence: negligence of most ordinary citizens under the CL of torts
  2. Duty: People who do not act owe no duty to care for others
  1. Yania (Ditch and drown): P-decedent jumped into water filled ditch on D’s property after D, property owner, requests assistance. D did not have a duty to help him.

1. Did D commit the type of act that carries a duty?

2. Did P and P’s harm fall within the scope of D’s duty?

3. Do any policy limits or exceptions apply?

  1. STEP 1: Identity acts creating a DUTY (3 Rs: Risk, Relationship, Reliance)
  1. 1: RISK
  1. One who creates and imposes risks on others generally owes a duty to exercise reasonable care
  1. Creating risk
  1. Driving at high speed in a 35mph zone and striking a pedestrian
  1. Failure to prevent or reduce risk
  1. Installing cameras but not a doorman. Mugger robs woman. Camera did not create the risk, but D failed to reduce existing risk by hiring a doorman
  2. Farwell (Driving around while beaten up): Teen boy dies he is beaten by attackers and his friend drives him around all night, leaving him in garage afterward.
  1. Failure to prevent or reduce risk, unless D provoked attack.
  1. Def: Exists when one party has 1) knowledge of and control over the risks of the relation 2) and the other party depends on her protection
  2. Rule: The party in control owes a duty to the dependent party or to others to exercise reasonable care
  1. E.g.: Doctor/patient;innkeeper/guest;parent/child;guardian/charge;landowner;invitee
  1. Farwell: “Co-adventurer” relationship which required D to provide reasonable aid defending P or caring for him
  1. Rule: One who undertakes to aid another already at risk, but worsens the other’s position, owes a duty to exercise reasonable care
  1. Worsening occurs when:
  1. Induces the other’s detrimental reliance
  1. HYPO: D throws a rope to P in water, P relies on D and drowns swimming toward rope
  1. Preventing other assistance
  1. Farwell: Worsened P’s condition by driving him around instead of dropping him at hospital or leaving him alone
  1. STEP 2: Show P’s Harm is w/in Duty’s Scope
  1. RISK
  1. Is P’s harm the type that could be reasonably forseen? USE STOP-THE-DVD ANALYSIS (SLIDE 6; WEEK 6)
  1. McCollum: (OZZY!): Teen committed suicide while listening to Ozzy. COURTS ADOPT A HIGH FORSEEABILITY STANDARD and his suicide was not highly foreseeable; thus harm was not w/in scope
  1. Is P’s harm the type that her relational partner, would be expected to prevent?
  1. HYPO: Student is assaulted at an off-campus party and brings negligence claim against school. There is a relationship (school-student), but injury occurred off campus at unsponsored even which falls beyond scope of College’s duty.
  1. Is P’s harm the type that D sought to prevent by her undertaking?
  1. HYPO: Saving old man from bus, then man gets robbed. Made no effort to protect man from assault and there is no evidence D enhanced or created the risk
  1. General (Case-by-case) Multifactor analysis
  1. Principle: Public policy may limit or eliminate the duty in extraordinary cases with great public importance
  2. Policy considerations: Courts Frequently Limit Duties to Minimize Borderline Cases
  1. Certainty of Injury (whether she suffered a cognizable injury)
  2. Clarity of causal connection (closeness of D’s act and P’s harm)
  3. D’s moral blameworthiness
  4. Burden on D and society
  5. Deterrence
  6. Loss spreading
  7. Other (free speech)
  1. Mcollum: Imposing duty on CBS and OZZY would impose too heavy a burden on their and society’s 1st amendment free speech rights
  2. Rice (how-to hitman): Criminal purpose decreased free speech value and how-to aspects heightened forseeability of harm. DUTY OWED and D held liable.
  1. Specific (predetermined) limited duty rules: Special Actors: Public Offenders Often Get Amnesty
  1. Adults
  1. Activities: An o/o who affirmatively conducts an activity on her property has a duty to exercise reasonable care for foreseeable entrants
  1. Children: Attractive Nuisance Doctrine
  1. Rule: o/o owes a duty of reasonable care toward a child on her property if the child was injured by an artificial condition that lured her onto property
  1. Obvious/Common Risk limit: o/o owes no duty of care to a child if the child is injured by obvious or common danger that a reasonable child of similar age, intelligence, experience, and maturity would have recognized and avoided
  2. RST 2d § 339: o/o owes a duty of reasonable care toward a trespassing child on her property if the trespass was foreseeable the child was injured by an nonobvious artificial condition that exposed her to a foreseeable risk of death or serious bodily harm (removes LURE)
  1. Conditions: Duty for conditions on her property is determined by 1 of 3 approaches:
  1. 3 tiered entrant classification system (ECS)
  1. Trespasser: A person who enters another’s property w/o lawful consent
  1. Limited Care Owed: the o/o may not willfully harm a trespasser
  1. Leasee: a person who enters another’s property with lawful consent for a social or unilateral purpose
  1. Limited care owed: the o/o may not willfully harm a licensee
  2. The o/o must warn of known, nonobvious dangers
  1. Invitee: a person who enters another property for a mutual business purpose; specifically to provide a present or prospective economic benefit to the o/o in exchange for the right to enter OR a person who enters another’s property according to a public invitation
  1. FULL CARE OWNED: O/o must exercise reasonable care toward an invitee
  2. Case: Ruvacalba (Kid falls from stairs): Mother and Child went to visit father at work. Kid falls from stairs due to defective hand-rail. No invitee status(bldg not open to public & boss does not sell merchandise).  Assuming licensee status 🡺 no breach because D did not know about stairwell. P’s lawyer messed up.
  1. 2-tiered ECS
  1. Duty still depends on P’s entrant classification
  2. Licensee class eliminated. P’s either trespassers (no consent) or invitees (consent)
  1. Trespassers: Duty not to be willfully harmed
  2. Invitees: Duty of reasonable care
  1. Case by case multifactor analysis (eliminates predetermines duties & duty limitations
  1. New approach: Whether o/o owes a duty depends on unique facts and compelling policies of each case
  1. Policy considerations (Identical to McCollum)
  2. Criticism: Unpredictability, influx of new cases, burden on victim, etc.
  1. Rowland (Faucet-Tendon damage): Guest at host’s home’s sink broke and injured P. D did not warn or fix handle. Revered for P. Entrant status is irrelevant because all entrants are entitled to the same level of care. Landmark case that abandoned ECS because difficult to say what KNOWN DANGER would be under licensee status.
  1. Criminal Activity: Delta Tau: P was sexually assaulted by alumnus during a frat party.
  1. Prior similar incidents (PSI): (combined with specific harm): A duty to protect against criminal activity arises only if prior similar acts have been committed on or near the property. HIGH FORSEEABILTY REQUIRED; LIMITED DUTY: 2 prior incidents of assault.
  2. Totality of circumstances (combined with balancing test): A duty to protect against criminal activity arises if that activity was foreseeable in light of all the surrounding circumstances including prior similar incidents and the landowner’s and society’s burden of preventing such activity. ORDINARY FORSEEABILITY SUFFICERS: ORDINARY DUTY
  1. Professionals: A professional owes her client a duty of reasonable care to protect the client against the foreseeable risks of the professional’s conduct (NO LIMITS: DOMINIANT PARTY OWES DUTY TO SMALLER PARTY)
  1. Doctors- Non-clients and 3rd party duties may be full or limited:
  1. Rule: A doctor owes a nonclient a duty of reasonable care if the doctor’s professional conduct exposed the nonclient to a foreseeable risk of physical harm.
  1. Psychotherapist
  1. Rule: A psychotherapist owes a duty to protect a nonclient if her patient is either a named or readily identifiable (highly foreseeable) victim of that threat (the more serious the physical threat, the more court expands risk)
  1. Tarasoff (landmark case): Student was killed by a university outpatient after the outpatient’s therapist failed to disclose the outpatient’s threat to kill the student
  1. Factors: (always analyze this)
  1. Type of Harm
  2. Forseeability
  3. Extent of burden
  4. Policy
  1. CA requires only a duty to warn the victim and the police (harder to find liability)
  1. Public Agencies (Law enforcement)
  1. Methodology
  1. Does D enjoy Sovereign Immunity?
  1. Yes 🡺 Case is barred
  2. No 🡺 Proceed to Duty
  1. Does D owe P a duty of care?
  1. No 🡺 case is barred
  2. Yes 🡺 proceed to breach
  1. Sovereign Immunity against Intentional Torts (old rule: King can do no wrong)
  1. People committing IT are rogue actors
  1. Generally, No Immunity for Negligence (should be responsible for carelessness of its agents
  1. Discretionary (Policy or Planning) Function Exception: (balance of power- respect policy decisions made by branch of government)
  1. Public Agencies are immune from liability where the acts implement the agency’s discretionary functions
  1. Discretionary functions: policy or planning decision that the agency is legally entitled to make
  1. Deviations or failure to promote policy or planning decisions = no immunity
  1. Harry (Sprinklers over Hose): Use of hoses instead of sprinklers was individualized emergency decision that violated accepted firefighting practice and posed a narrow, moderate, and isolated danger to few people
  1. Factors for Determining Discretionary Function
  1. Degree of Deliberation (>deliberation = likely a policy or planning decision)
  2. Breadth of Decision and # of people affected
  1. High Department granted immunity for building a road next to a cliff and rock falls on car: Calculated policy decision that affects entire public
  2. Failure of HD EE to remove rocks and car hits rocks. 1)Violation of Job responsibilities 2)narrow and isolated danger created 3)to a small segment of public
  1. Social Utility of decision
  2. Burden of Precaution
  3. Violation of Internal policy (Violation = No immunity)
  1. Acts
  1. Where Public agency imposes a foreseeable risk on citizens 🡺 duty of care owed to citizens
  1. Harry: Siphoned away water from sprinklers that increased risk of more buildings burning down
  1. Omissions
  1. No Duty: There is no preexisting special relationship between a public agency and any particular citizen: Riss (crazy/Love)
  2. Policy against duty
  1. Balance of Power: Courts lack political power to control other gov’t branches
  2. Expertise: Courts lack expertise to set policy for other gov’t branches
  3. Floodgates: other branches of gov’t must either relocate or raise taxes
  1. Undertaking + Reliance: Where a public agency undertakes to aid a specific citizen and the citizen justifiably relies on that undertaking, the agency owes that citizen a duty of care
  1. Cuffy (Violent tenants): No duty! 1) son was not aware of police’s promise 2) family members chose to remain in home after police failed to arrive
  1. Special Harms (Administrative Problems)
  1. Policy Concerns
  1. Difficulty of proof
  2. Potential for fraud
  3. Floodgates
  4. Disproportion between liability and culpability
  1. Pure emotional distress: Emotional injury not caused by physical harm
  1. Easy cases where Duty is clearly owed
  1. Physical injury causes Emotional distress (no pets)
  2. Death: Mishandling of bodies; miscommunication of death
  1. Hard cases: Duty questionable or limited (CA and most jurisdictions
  1. Direct Victims: P’s who are directly exposed to D’s negligence and (generally) fear for their own safety
  2. Tests for Direct Victim Duty
  1. Physical Impact: D owes a duty of care to P if D’s negligence causes a physical impact on P’s body (smoke blown on you, droplets of water)
  2. Physical Zone of Danger: D owes a duty of care to P if D’s negligence exposes P to a forseeable risk of physical harm
  3. Physical Manifestation: D owes a duty of care to P if D’s negligence causes P to suffer emotional distress that is physically manifested by P’s behavior
  1. Diagnosable manifestations that may need to be confirmed
  1. Special Relationships or undertaking: Dr’s relational duty of care may extend to patient’s physical AND emotional wellbeing
  1. Burgess (Triangular): Dr delays c-section and baby gets brain damage. Given triangular relationship, emotionally charged nature of pregnancy, Dr owed a duty to protect Mom from ED in delivery of her child (P’s harm w/in scope)
  1. Bystanders: P’s who witnesses another being exposed to D’s negligence and fear for the safety of the other

Tests for Bystander

  1. Majority: Physical Zone of Danger: D owes a duty to a bystander if D’s negligence exposes the bystander to a forseeable risk of physical harm.
  1. Clohessy: Mother watches as her Kid is hit by a car and witness him die.
  1. Substantial Minority: (CA)Dillon-Forseeability: D owes a duty to a bystander if D’s negligence exposes bystander to a forseeable risk of emotional harm. Factors include:
  1. P is located at the scene of the incident (spatial)
  2. P suffers a direct emotional impact from contemporaneous observance of the incident (temporal)
  3. P and victim are closely related

-(showing up after incident can be liable for ED. There is a heightened sense of experience)

  1. Small Minority: Multi-element-Thing test: Must establish ALL: (harder test)
  1. P is present at the scene
  2. P then aware of the incident (or aftermath= clohessy)
  3. P and victim are closely related
  4. Victim’s injury is serious physical harm or death
  5. P Suffers serious emotional distress (implied in Dillon)
  1. BREACH: is D’s failure to meet the standard of care. D breaches the when failing to act like a reasonably prudent person acting under the same or similar circumstances.

1. What is D’s Standard of care?

2. Did D breach the standard of care by failing to act like a reasonable person under same or similar circumstances?



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