I. Introduction & Basics
Definition of a Tort- “A tort is a civil wrong.”
- “The purpose of tort law is to make plaintiff whole again.”
- Preponderance of the Evidence: (Civil) “More likely than not.” (51%).
- Clear and Convincing: (Civil - Punitive/Fraud) “Evidence that there is a high probability that the fact is true.”
- Beyond a Reasonable Doubt: (Criminal only) Highest burden.
- “Do not use criminal law language in your civil cases, and thou shalt not use civil language in your criminal courses.” (e.g., use “liable” not “guilty”).
II. Intentional Torts
The Prima Facie Elements- Common to most intentional torts: Intent, Act, Causation.
- 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.”
- Note: “Mistake does not negate intent.”
- Note: “Mental illness does not negate intent.”
- “Battery is an intentional act that causes a harmful or offensive touching of the plaintiff’s person.”
- Harmful/Offensive: “Determined by a reasonable person’s standard.”
- Plaintiff’s Person: “Anything intimately connected to the plaintiff’s person is a part of the plaintiff’s person.”
- Note: Damages are not a prima facie element.
- “Assault is an intentional act that places the plaintiff in the imminent apprehension of a harmful or offensive touching.”
- Note: “Defendant’s apparent ability to assault is sufficient.” (Actual ability not required).
- Note: “Words alone are insufficient to constitute assault. However, words if accompanied by an overt act may constitute assault.”
- Note: “Apprehension… must be immediate.”
- “False imprisonment is an intentional act, or omission to act where there is a duty to act, that confines or restrains the plaintiff to a bounded area.”
- Requirement: “Awareness of confinement is required for false imprisonment.”
- Methods of Confinement: Physical barriers, physical force, threat of force, failure to provide means of escape where there is an affirmative duty to do so.
- Note: “Moral persuasion is not a means of confinement.”
- “An intentional act that brings about a physical invasion of plaintiff’s real property.”
- Intent: “The intent is for doing the act constituting the trespass to land.” (Not intent to trespass).
- Note: “Mistake is not a defense.”
- Note: Damages are not required.
- “An intentional act by the defendant that interferes with plaintiff’s right of possession in the chattel.”
- Intent: “The intent is to do the act constituting the trespass.”
- Requirements: Requires either “some harm to the chattel” OR “plaintiff was dispossessed of it for a long enough period of time that the dispossession is a damage.”
- “Conversion is an intentional act by the defendant interfering with plaintiff’s right of possession of the chattel that is so serious as to require the defendant to pay the full value of the chattel.”
- Remedy: “Fair market value of the chattel determined at the time of conversion.” (Or Replevin: return of the chattel).
- “An intentional act by the defendant that is extreme and outrageous conduct that causes plaintiff to suffer severe emotional distress.”
- Extreme and Outrageous: “Conduct that transcends all bounds of decency tolerated by civilized society.”
- Note: “Insulting language is not extreme and outrageous conduct unless there is a special relationship (Innkeepers, Common Carriers) or a known sensitivity.”
- Bystander Recovery for IIED:
- Plaintiff was present when the injury occurred.
- Plaintiff must be a close relative to the injured party.
- Defendant knew that plaintiff was present and a close relative.
- “When the tort intended and the tort that was accomplished are within the following common law writs of trespass [Battery, Assault, False Imprisonment, Trespass to Land, Trespass to Chattel], the intent can be transferred from one to the other.”
III. Affirmative Defenses to Intentional Torts
- Legal Effect: “The legal effect of a valid affirmative defense is a complete bar to recovery.” (Synonym: Privilege).
- Express Consent: “Exists where plaintiff has expressly submitted to defendant’s conduct.” (Written or oral).
- Note: Fraud or Duress vitiates consent.
- Implied Consent (Apparent): “Exists when a reasonable person would infer consent from plaintiff’s conduct.” (e.g., sticking arm out for a shot, sports).
- Implied Consent (By Law): “Exists where action is necessary to save a person’s life or an important interest in property.” (e.g., unconscious in ER).
- Self-Defense: “When a person has a reasonable belief that he is about to be attacked, he may use reasonable force for protection.”
- Defense of Others: “One may use force to defend another person only when the other person could have used force.” (You step into the shoes of the victim).
- “One may use reasonable force to prevent the commission of a tort against his property.”
- Note: “You cannot use deadly force to defend property.”
- For the privilege to apply, there must be:
- “A reasonable belief as to the theft.”
- “The detention must be conducted in a reasonable manner and no deadly force can be used.”
- “The detention must be only for a reasonable period of time to complete the investigation.”
- Public Necessity: “Where the act is for the public good, the defense is absolute.” (No right to recover).
- Private Necessity: “Defendants acting out of private necessity are relieved of the technical tort of trespass, but must compensate plaintiff for any damage done.”
- “When every other affirmative defense fails, but it would be unjust or inequitable to hold defendant liable.”
- “It is a time period within which you must file an action.”
IV. Negligence
Prima Facie Elements- Duty
- Breach
- Causation (Causation in Fact + Proximate Cause)
- Damages
A. Breach (The Fault Element)
Standard Rule:- “Conduct falling below the standard of care of a reasonable, prudent person under the circumstances.”
- Minors: “The standard of care to be applied to minors is to act as a reasonable minor of like age and experience under the circumstances, unless the minor is engaged in an adult activity (e.g., driving). Then, they are compared to a reasonable person under the circumstances.”
- Physical Characteristics: “The physical characteristics of the person whose conduct is being evaluated are taken into account in applying the reasonable person standard.” (e.g., reasonable blind person).
- Mental Illness: “The mental illness of the defendant is not taken into account in evaluating the reasonableness of the conduct.”
- Professionals: “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.”
- “Determination of conduct reasonable under the circumstances is done by balancing the Probability that the risk of harm will manifest, the Gravity of the harm that can result, and the Cost of precautions which would reduce the risk of harm.”
- Rule: “Violation of a statute that provides for a criminal penalty can be used as a shortcut to find conduct falling below the standard of care… without a jury.”
- Legal Effect: “Negligence per se establishes a presumption of existence of a duty and breach thereof.” (Shifts burden of proof to defendant to rebut).
- Applicability Test: Plaintiff must show:
- “He is in the class intended to be protected by the statute.”
- “The statute was designed to prevent the type of harm that plaintiff suffered.”
- Excused Violation (Rebuttal):
- “Where compliance would cause more danger than violation.”
- “Where compliance would be beyond defendant’s control.”
- Meaning: “The thing speaks for itself.”
- Requirements:
- “The accident causing the injury is a type that would not normally occur in the absence of negligence.”
- “Plaintiff must establish that the instrumentality that caused the injury was in the sole/exclusive control of the defendant.”
- Legal Effect: “Res Ipsa Loquitur creates an evidentiary presumption of breach.” (Shifts burden to defendant).
B. Causation
1. Causation in Fact
- Sine Qua Non: “Without which it cannot be.”
- The But-For Test (Single Defendant): “But for defendant’s conduct, plaintiff would not be injured.” (If true, causation is met).
- Concurrent Causes: “Where several causes concur to bring about an injury, and any one alone would have been sufficient… it is sufficient if defendant’s conduct was a substantial factor in causing the injury.” (The But-For test fails here).
- Alternative Causes: “Where two or more persons have been negligent, but there is uncertainty as to which one caused plaintiff’s injury… The burden of proof shifts to the defendants… each defendant must show that his negligence was not the actual cause.” (e.g., Summers v. Tice).
- Market Share Liability: “If defendants cannot prove they didn’t manufacture the [instrumentality], they are liable according to their market share.” (e.g., Sindell).
- Loss of Chance: “Plaintiff may recover for the loss of a chance or reduced chance of recovery.” (Medical Malpractice exception).
2. Proximate Cause
- Definition: “Proximate cause is a 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 the defendant liable.”
- The Test: “Foreseeability of that particular type of harm.”
- Eggshell Skull Rule: “You take your plaintiff as you find them.” (Liable for full extent of injury even if unforeseeable magnitude, provided the type of harm was foreseeable).
- “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.”
- Rule: “If a particular harmful result was at all foreseeable from defendant’s negligent conduct, the unusual manner in which the injury occurred is irrelevant… and the extent of damage is immaterial.”
- “The acts of a third person that intervene between defendant’s negligent conduct and plaintiff’s injury.”
- Intervening vs. Superseding Acts:
- Intervening Act: “Any subsequent negligent act is an intervening act.”
- Superseding Act: “Only if the act is deemed superseding will the original negligent actor be relieved of liability.”
- Test for Superseding: The act must be “Extraordinary, Unforeseeable, and Independent.”
- Not Superseding: “If it is a normal, foreseeable consequence flowing naturally from the situation created by the negligent conduct.” (Original defendant remains liable).
- Criminal/Intentional Acts: “Intervening intentional or criminal acts tend to be intervening superseding acts.”
- “Danger invites rescue.”
- “The wrong that imperils life is a wrong to the imperiled victim; it is a wrong also to his rescuer.” (Original tortfeasor is liable to the rescuer).
C. Duty
General Rule:- “Duty is a legal obligation to conform to a reasonable person standard of care for the protection against unreasonable risks of harm.”
- The Zone of Danger: “The zone of danger is the area of increased risk of physical harm.”
- Rule: “If plaintiff was not in the zone of danger, no duty was owed.”
- General Rule: “Generally, there is no duty to act.” (No duty to rescue).
- Exceptions (Affirmative Duty to Act):
- Special Relationship: (e.g., Parent/child, Common Carrier/passenger, Innkeeper/guest).
- Voluntary Assumption of Duty: “If you volunteer to help, you must do so with reasonable care” and “not leave the victim in a worse position.”
- Creation of Peril: “If defendant’s negligence created the need for rescue.”
- Control of Instrumentality: “If you control the instrumentality that caused the injury.”
- Statutory Duty: (e.g., Teachers mandated to report abuse).