Black Letter

Black letter law- simple law

TORT - A CIVIL WRONG A fault based system of recovery. Defendants conduct

Demurrer- a pleading stating that although the facts alleged in complaint may be true, they are insufficient for plaintiff to state a coa for relief.

Intentional Torts:

Battery

Battery- An act by the defendant that intentionally causes harmful or offensive touching to plaintiff’s person. Can recover for pain and suffering parasitic to Battery, does not need to be severe as in IIED.

Intent

Intent: Two types of intent- requires no showing of malice (bad faith), or bad motive. Requires only volitional act performed with knowledge that is substantial certainty will result. Good faith and mistake do not negate intent. Mental illness does not negate intent.

• Specific intent- An actor intends the consequences of his conduct if his goal is to bring about those consequences.
• General Intent- An actor intends the consequences of his conduct if he knows with substantial certainty that those consequences will occur.

Act- the act refers to volitional movement on the defendant’s part. Causation- the causing or producing of an effect. Harmful or offensive touching- whether touching is harmful or offensive objectively Plaintiff’s person- any object connected to the plaintiff’s person is intimately touching.

Remand- to send back to a lower court.

Transfer intent: transfer cause of action from one tort to another tort. Ex.when A has intent to hit B but actually hits C. C has a cause of action from A. Can only occur from the 5 writs of trespass. Battery, Assault, False imprisonment, Trespass to chattel, trespass to land.

Doctrine of transferred intent: intent: permits plaintiff to prove intent by proving that the defendant intended to commit any one of five intentional torts and accomplishing any of those five intentional torts (Battery, assault, trespass to land, trespass to chattel/conversion, false imprisonment).

Assault

Assault- an intentional act by the defendant that causes a reasonable apprehension of an imminent harmful or offensive touching of the plaintiff’s person. Assault has to do with apparent ability. Defendant’s apparent ability to assault is sufficient. Words alone are insufficient to constitute assault, however words if accompanied by an overt act may constitute assault. The apprehension of a harmful or offensive contact must be imminent.

False Imprisonment

False Imprisonment- an intentional act or omission to act where there is a duty to act that confines or restrains the plaintiff to a bounded area. Methods of confinement or restraint:

1. Physical barriers
2. Physical force
3. Threat of force (directed at plaintiff or someone else)
4. Failure to provide means of escape when there is an affirmative duty to do so. Awareness of confinement is a essential for recovery of false imprisonment.

Intentional Infliction of Emotional Distress (IIED)

Intentional Infliction of Emotional Distress (IIED) an intentional act by the defendant that is extreme and outrageous conduct that causes plaintiff to suffer severe emotional distress. Prima Facie elements for IIED- act, intent, causation, extreme outrageous conduct, severe emotional distress

extreme and outrageous conduct: conduct that transcends all bounds of decency tolerated by civilized society.

• Insulting language is not extreme and outrageous conduct, unless there is a special relationship between plaintiff and defendant or a known sensitivity on plaintiff’s part
  • Special relationship- innkeeper (hotel/motel owner); common carrier (American airlines);
  • A known sensitivity- health issue ex. Pulmonary problem, age issue ex. An old person at a nursing home

Severe: physical manifestation. a COA that compensates you for emotional distress Emotional distress is parasitic to battery; can recover in battery, no need for a separate COA. Use IIED only when Plaintiff’s damages are purely emotional. not one of the 5 writs of torts, can’t transfer intent.

Bystander Intentional Infliction Emotional Distress

Bystander Intentional Infliction Emotional Distress- an intention to cause severe emotional distress exists when the act is done for the purpose of causing the distress or with the knowledge on the part of the actor that severe emotional distress is substantially certain (general intent) to be produced by his conduct. Prime facie elements for bystander emotional distress are the same prima facie elements as IIED. act, intent, causation, extreme outrageous conduct and severe emotional distress. The hard part about this is to prove the INTENT element that the defendant intended to also cause severe emotional distress towards her. The intent element has 3 elements of its own listed below that must be proved by the facts.

In order to recover for B-IIED- extreme and outrageous conduct; severe emotional distress; intent - acted with intent towards the bystander. *Here there is a intent problem for the plaintiff.

To prove intent you need the following 3 elements:

1. Plaintiff must be present when the injury occurred to the other person
2. Plaintiff must be a close relative to the injured party
3. Defendant knew that plaintiff was present and a close relative of the injured party

Trespass to land

Trespass to land- an intentional act that brings about a physical invasion of plaintiff’s real property. D does not need to enter on the real property. Trespass can occur on the surface, below, or above the surface. Ex: shooting ducks over property, still trespass. The intent is for doing the act constituting the trespass to land. Ex: stepping on someone’s property, thinking it is your property is still trespass. Because the ACT itself. But, being pushed does not constitute the underlying act, there would be no intent, therefore no trespass. Mistake is not a defense as long as D intended to enter upon land. The purpose of trespass to land is the protection of the possessory interest in the real property. Extent of damages goes to dollar amount. Don’t need damage requirement for trespass to land (it is not a prima facie element) Mistake does not negate the intent (act). Ex. building a wall on someone else’s land without knowledge that it is not their land is trespass to land. The intent element is there. Ex. A slip onto someone else’s property would not constitute the intent element in trespass to land, this would be neglect.

Trespass to Chattel

Trespass to Chattel- an intentional act by the defendant that interferes with the plaintiff’s right of possession in the chattel *Don’t need to permanently deprive the chattel from the plaintiff. Damage is not relevant.

1. Mistake is not a defense.
2. The intent is to do the act constituting the trespass.

Conversion

Conversion- an intentional act by the defendant interfering with plaintiff’s right of possession in the chattel that is so serious as to require defendant to pay full market value of the chattel. What are the remedies to make plaintiff whole again:

1. Fair market value of the chattel determined at the time of the conversion.
2. Replevin - when plaintiff seeks the return of the chattel, rather than payment for his fair market value. Affirmative defenses are a complete bar to recovery Releases- surrender for the COA (Cause Of Action) (pay the plaintiff)

Affirmative defenses to Intentional Torts: Complete Bar to Recoveries!!!!!

If no facts suggest affirmative defenses, state under IRAC in Conclusion. ” There are no facts to give right to affirmative defenses.”

1. Shopkeeper’s privilege

1. Shopkeeper’s privilege- false imprisonment For a shopkeeper’s privilege to apply there must be:

1. A reasonable belief as to the theft
2. The detention must be conducted in a reasonable manner and no deadly force can be used
3. Detention must be only for a reasonable period of time to complete the investigation

2. Consent

2. Consent- express or actual consent (battery)

• Express-Verbal or Written
  • exists when P has expressly submitted to D’s conduct.
  • Fraud vitiates (nullifies) consent
  • Duress vitiates consent.
• Implied consent- apparent consent or consent applied by law
  • apparent exists when a reasonable person would infer consent from plaintiff’s conduct
  • consent applied by law exists where action is necessary to save a person’s life or an important interest in property

3. Self-defense and defense of others

3. Self-defense and defense of others: (battery; assault)

1. Self Defense-When a person has a reasonable belief that he is about to be attacked he may use reasonable force for protection. **Deadly force is only reasonable when defendant is using deadly force. Can only use reasonable force to prevent physical attacks against you.
2. Defense of others- One may use force to defend another person only when the other person could have used force.

4. Defense of Property

4. Defense of Property- One may use reasonable force to prevent the commission of a tort against his property.

• Commission of a tort: at the time of committing the act of the tort. Exists until tort has been completed.
• *You cannot use deadly force to prevent the commission of a tort against his property

5. Public Necessity

5. Public Necessity (Trespass to land)- Where the act is for the public good, the defense is absolute. *Those whose property is destroyed by an act of public necessity will not have the right to recover.

6. Private Necessity

6. Private Necessity (trespass to land)- where the act is solely to benefit any person or property from destruction or serious injury. *Defendant acting out of private necessity is relieved of the technical tort of trespass but must compensate plaintiff for the damage done.

• Necessity requires some emergency not for conveniency

7. Justification

Don’t need to know for final→ 7. Justification- defendant’s actions may be justified if the action taken was reasonable and done to protect others from personal injury or to protect property. (rarely used find one above usually)

• Justifications is a generic term for a defense to intentional torts in circumstances where it would be unfair to hold defendant liable but the facts do not meet the requirements of any traditional defense.

8. Statute of Limitations

8. Statute of Limitations- When the statute of limitations has run out on a tort (EXPIRED) defendant can raise the affirmative defense.

• Tolling the statute - the act of filing the complaint.

Torts is a fault based system of recovery

Negligence:

Elements of a cause of action Prima facie elements for COA:

A. Duty - existence of a duty to conform to a specific standard of conduct to protect plaintiff against unreasonable risk of harm.

THREE WAYS TO ESTABLISH DUTY

1. BY ENGAGING IN AN ACTIVITY (Privity of Care)

• By virtue of engaging in an activity that increases the risk of physical harm towards foreseeable plaintiffs, one is under a duty to act as a reasonable, prudent person under the circumstances.
• Zone of Danger: Area of increased risk of physical harm
  • Example: Swinging golf club creates duty to those nearby (in zone of danger)
  • Example: Operating motor vehicle creates duty to other drivers

2. BY STATUTE (Negligence Per Se)

• Violation of applicable statute establishes:
  1. Existence of duty
  2. Breach thereof
• Requirements:
  • Plaintiff within protected class
  • Injury is particular harm statute intended to prevent
  • Must be criminal statute (provide for criminal penalty)

3. BY PRIVITY OF CONTRACT

• Contract relationship creates duty
• Example: Attorney-client relationship
• Example: Landlord-tenant
• At common law, this was the ONLY way to establish duty

GENERAL RULE ON RESCUE

There is no duty to rescue, unless there is a special relationship or the ability to control the means of help.

Tarisoff: duty to prevent violent crimes- a threat of future act of violence is not privileged and mental health care professionals have a duty to report it.

Pure Economic Loss/ physical impact rule

1. Pure Economic Loss/ physical impact rule - In the absence of physical impact where losses are purely economical there is no duty of care

Pure Emotional Loss

2. Pure Emotional Loss : recovery for pure emotional distress is done through negligent infliction of emotional distress.
   • Negligent Infliction of Emotional Distress (NIED)- the court replaces the physical impact test with a “definite and objective physical injury test”. This is also called the physical manifestation test. (in the absence of physical manifestation there is no duty of care.)
     1. Duty- the court replaces the physical impact test with a “definite and objective physical injury test” this is also called the physical manifestation test.
   • Bystander recovery for Negligent Infliction of Emotional Distress (BNIED): in order for plaintiff to establish that the defendant owed the bystander (plaintiff) a duty of care,
     1. Plaintiff establishes a close familial relationship
     2. Plaintiff is present at the scene and is aware the act is causing injury.
     3. Plaintiff suffers serious Emotional Distress beyond that of a disinterested witness and which is not abnormal. *depending on if the bystander was in the zone of danger… if bystander is in close proximity and in the zone of danger then she has her own COA of NIED. But if bystander is watching from a distance and is not included in the zone of danger, then her COA is BNIED. * the difference between BIIED and BNIED is if Defendant knew that plaintiff was present and a close relative of the injured party.. If the defendant does not know who the bystander or that there is a bystander present, then BNIED.

B. Breach (fault element) –

1. Conduct falling below the standard of care

1. Conduct falling below the standard of care of a reasonable prudent person under the circumstances. [Way to prove fault. (Direct evidence)]
   • ECONOMIC: Method of proving breach aka Learned Hand Formula: Determination of conduct reasonable under the circumstances is done by balancing the probability that the risk of harm will manifest the gravity of harm that can result and the burden or cost of the precautions which would reduce the risk of harm. ($ damages > %probability of harm occurring x cost of remedial measures = is breach) ie. safety feature on a lighter.
   • What a reasonable person would do under the circumstances can be evidenced by industry standards and customs.
   • Physical Disabilities- the physical characteristics of a person whose conduct is being evaluated are taken into account in applying the reasonable person standard. Mental Disabilities- The mental illness of the defendant is NOT taken into account in evaluating the reasonableness of the conduct. (compare with reasonable prudent person)
   • Minor-The standard of care to be applied to minors is to act as a reasonable minor of like age under the circumstances, unless the minor is engaged in an adult activity.
   • Professional- the standard will be of a reasonable prudent person in that profession under the circumstances, not conforming to the experience and training of the person in the case. (novice would not be compared to novie, instead a reasonable prudent person)

2. Negligence per se

2. Negligence per se = Violation of a statute that provides for criminal (when government punishes you) penalty can be used as a shortcut to finding that the conduct fell below the standard of care of a reasonable prudent person under the circumstances. (No issue of fact- doesn’t have to go to jury)
   • In order to prove applicability of a statutory standard plaintiff must show the following: (Two Tier applicability test)
     1. Plaintiff must show that he is in the class intended to be protected by the statute (example of person smoking in non smoking area, a person in non smoking area) AND
     2. Plaintiff must show that the statute was designed to prevent the type of harm that plaintiff suffered (ex: the people in non smoking section who suffered harm from person smoking)
   • Negligence per se establishes a presumption of existence of a duty and a breach thereof - when violate a statute to prove affirmative defense (ex: mandatory reporter- therapists have duty to report bc there is a statute)
     1. An evidentiary presumption is a shifting of the burden of proof of the existence of a duty to the defendant
     2. The other side (the defendant) must now rebut the evidentiary presumption. (aka excuses)
        • Where compliance would cause more danger than violation. (ex: A driving down a road, B pulls out of driveway, A swerves to avoid B; snow on the sidewalk case lady moved to walk on street and got struck) EITHER/OR
        • Where compliance would be beyond defendants control (if there is no excuse then plaintiff has established that there was a duty of care and the defendant breached it) (if there is no rebut in the evidence, then you don’t write part a and b mentioned above, you just state that there is no evidence of a rebut in the analysis of negligence per se after #2.)

3. Res ipsa loquitur

Only when there is ABSENCE of evidence (direct/circumstantial) to prove fault element: 3. Res ipsa loquitur - in situations where circumstantial evidence may itself establish breach of duty of care, res ipsa loquitur requires plaintiff to show the following: (circumstantial/ indirect evidence)

• That the accident causing the injury is a type that would not normally occur in the absence of negligent conduct. AND
• Plaintiff must establish that the instrumentality that caused the injury was in the sole control of the defendant. Res ipsa loquitur creates : (legal effect)

1. An inference of negligence in some jurisdictions (allowing case to go to jury; shift burden of breach to defendant) AND
2. Evidentiary presumption in others

C. Causation-

1. Causation In fact

1. Causation In fact - Defendant’s conduct cannot be considered the proximate cause of the plaintiff injury, unless it is first the cause in fact of the injury. (Sine qua non - Without which it could not be) - must prove causation in fact in order to go to proximate cause. Ex. 101 freeway accident, causes people to be late and suffer consequences- there is causation in fact (causally connected) it is a tool to limit liability.
   • “But for” test (for single causes/defendant): But for the defendant’s conduct plaintiff would not be injured (ex. “but for” my negligent conduct she would have been able to make it on time) (if it wasn’t single handedly for the defendant’s negligent conduct, the plaintiff would not have suffered the injury.)""But for “fill in def conduct""
     1. The act of the defendant is the cause in fact of the injury when the injury would not have occurred but for the act.
     2. When there is only one defendant, this is the only test required.
     3. It is not enough for plaintiff to prove that the negligent conduct might have caused the harm. Plaintiff must prove that the negligent conduct more likely than not was the cause the of the harm. (more than 51%)
   • If not/meets cause in fact: “If the but for test fails the defendant’s breach is not the cause in fact of plaintiff’s injury.”/ “If it meets the but for test then the defendant’s negligence was the cause in fact of plaintiff’s injury” Where defendant’s negligent conduct increases the likelihood of harm, the fact that it might have happened even in the absence of negligent conduct is NOT enough to break the cause and effect sequence.
   • Concurrent causes: Where several acts combine to cause injury, but none of the acts standing alone would have been sufficient. Each tortfeasor is liable for the full amount even though neither act alone would have caused the injury.
     1. But for test applies: “But for any of the acts, the injury would not have occurred”.
   • Joint causes: either act would be sufficient to cause the injury (ex. where two fires merge causing a single injury) (Can’t use “but for” test here- both would fail)
     1. Substantial factor test: where several causes concur to bring about an injury and anyone alone would have been sufficient to cause the injury, it is sufficient if defendant’s conduct was a substantial factor in causing the injury.
     2. So long as defendants conduct was a substantial factor in causing the injury, he can be held liable.
   • Alternative causes: Where two or more persons have been negligent but there is uncertainty as to which one caused plaintiff’s injury. (ex. Summer v. tice- two hunters shoot at a quail and cause injury to the plaintiff’s eye, it is unclear who the one pellet came from)
     1. Under the alternative causes approach plaintiff must prove that the harm has been caused by one of them with uncertainty as to which one.
     2. The burden of proof shifts to the defendant and each defendant must show that his negligence was not the actual cause.

2. Proximate causation

2. Proximate causation- is the legal doctrine that cuts off liability for harm, even though the harm was in fact caused by defendant’s negligent conduct, because it would be unfair or unjust to hold defendant liable. In addition to being the cause in fact, defendant’s conduct must also be the proximate cause of the injury. The defendant is liable for all harmful results that are the normal incidents of and within increased risk caused by his acts. (liability limiting tool) according to Andrews - duty of care to all, cut off by proximate cause.
   • Direct causes: A direct cause case is one where the facts present an uninterrupted chain of events from the time of defendant’s negligent act to the time of plaintiff’s injury. THERE ARE NO INTERVENING ACTS interrupting that causal link.
     1. If a particular harmful result was at all foreseeable from the defendant’s negligent conduct, the unusual manner in which the injury occurred is irrelevant to the defendant’s liability and the extent of damage is immaterial.
        • Eggshell skull rule (Bartolone)- defendant must take plaintiff as he finds him.
        • Polemis case
        • Wagon Mound 2- it found trier of fact that it is foreseeable for oil on water can catch fire if spilled.
   • Where defendant’s negligent conduct creates a risk of harmful result, but an entirely different and unforeseeable type of harmful result occurs the defendant is not liable for that harm. (cuts off liability)
     • Palsgraf Holding- Cardozo’s zone of danger: the limits of the zone of danger (increased area of physical harm) are defined by foreseeability. Defendant has a duty of care to those within that zone.
     • Andrews- the duty extends to all and liability can be cut off by the rules of proximate causation.
     • Wagon Mound 1- It found that it was not enough to anticipate some damage to the harbor (pollution), did not anticipate the fire. Proximate cause is to be tested by the reasonable foreseeability of that type of harm
   • Indirect causes: the acts of a third person that intervene between defendant’s negligent conduct and plaintiff’s injury will interrupt the causal link if the conduct is extraordinary, unforeseeable, and independent - superseding act (then it terminates the tortfeasor liability). It will NOT interrupt the causal link if it is a normal foreseeable consequence flowing naturally from the situation created by the negligent conduct (then its not superseding act and tortfeasor liable for all).
     1. The intervening act can be plaintiff’s own negligent act.
     2. Any subsequent negligent, intentional or criminal act is an intervening act. Only if the act is deemed superseding, will the original negligent actor be relieved of liability.
     3. The Rescue Doctrine - peril/danger invites rescue, defendant is liable if he proximately caused the danger and the rescuer was injured during the process of the rescue, as rescuers becomes foreseeable where there is danger.

D. Damages-: Next semester Torts II.

P suffered injuries. Apportion damages for cases with multiple tortfeasors:**USUALLY ON MULTIPLE CHOICE**

Joint Tortfeasors:

Tortfeasors who engage in action that is unreasonable conduct and that injures plaintiff are both liable to the plaintiff. Where 2 or more tortfeasors act in concert each will be jointly and separately liable for the entire injury, even if the injury is divisible.

1. Joint and Several liability

1. Joint and Several liability: where 2 or more tortious acts combined to proximately cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable for that injury. Each is liable to the plaintiff of the entire damage. The plaintiff can collect the full amount from either defendant. Ex. Can recover $100 k judgment from either defendant

2. Contribution

2. Contribution - any joint tortfeasor that pays more than his share of plaintiff’s damages may seek contribution or partial reimbursement from other tortfeasors. (contribution comes into play after the plaintiff has received their full judgement. Contribution is a tool used between defendants when there are multiple defendants.)
   • Contribution is a device where by responsibility for payment is apportioned amongst those who are at fault.

3. Indemnification

3. Indemnification - indemnity involves shifting the entire loss between tortfeasors, in contrast to apportioning it as in contribution. (does not require joint tortfeasors)
   • Ex. Teacher stepped on student’s toes, the teacher can seek indemnity from UWLA even if not a joint tortfeasor or named as a Defendant

4. Satisfaction

4. Satisfaction -Plaintiff may file as many lawsuits against potential defendants as he chooses, but he may collect only one satisfaction. Satisfaction prevents multiple recoveries.

5. Release

5. Release- a surrender of plaintiff’s (P) (Cause Of Action (COA) against a party to whom the release is given.

Affirmative defense: do not need to know until next semester

Contributory negligence is a defense to negligence (common law)- if P at all negligent, even 2% negligent, then P cannot recover anything.

Comparative negligence (statute)- comparing negligence of plaintiff that led to his own injury, to that of defendant. *Take and apply to multiple defendants. Instead of making them jointly and severally liable, use to compare their negligence and make them pay their portion of the fault. In the absence of concert of action. Reduce recovery per degree of fault. CA has pure comparative negligence- where the P is 80% negligent, then they must pay 80% for damages

If there IS concert we still maintain joint tortfeasors. But if they are NOT in concert, then look at comparative negligence.