An Intentional tort.

Define: A voluntary action intended to cause a harmful (or offensive) contact; and harm (or offense) occurs.

ELEMENTS:

(1) Intent to cause harmful/offensive contact

(2) Harmful/offensive contact occurs.

An Intentional Tort.

Define: A voluntary act intending to cause reasonable apprehension of imminent harmful/offensive contact; and apprehension occurs.

ELEMENTS:

(1) Intent

(2) Resulting apprehension

(3) of Imminent physical harm

SINGLE INTENT: Defendant is guilty upon proving he intended to make contact; and harmful or offensive contact results.

DUAL INTENT: Defendant is guilty upon proving he intended to (1) make contact, (2) he intends the contact to be harmful or offensive, and (3) harmful or offensive contact does result.

Apprehension: an anticipation or expectation that harmful contact will occur

Fear: The emotion that the victim feels about the anticipated contact.

An Intentional Tort.

Define: a voluntary act intending to unlawfully or unjustifiably confine or restain someone with a bounded area; AND defendant must in fact cause plaintiff to be confined to a bounded area.

(Implies that plaintiff is aware of confinement).

ELEMENTS:

(1) Intent (2) unlawful/unjustifiably (3) restrain/confine (4) bounded area

An Intentional Tort.

Define: an actor who by extreme and outrageous conduct, intentionally or recklessly, causes severe emotional disturbance to another is subjected to liability for that emotional disturbance; AND if the emotional disturbance causes bodily harm, also for the bodily harm.

ELEMENTS:

(1) Extreme and Outrageous conduct (2) Intent (or reckless) to cause severe emotional distress (3) plaintiff in fact suffers severe emotional distress.

Intentional Tort.

Define: A voluntary act where one intends to enter the land, and enters the land.

(no need to intend to trespass).

ELEMENTS:

(1) Intent to Enter Land (2) Presence on land.

An Intentional Tort.

Define: a voluntary act that prohibits the use and enjoyment of another's property by dislocating it, destroying it, stealing it, etc.

Intent to convert is not necessary.

ELEMENTS:

(1) Intent to exercise dominion or control over chattel (must not be knowingly), AND

(2) in fact dominion or control over chattel is exercised, AND

(3) Interference is serious enough ot require full compensation for the chattel.

An Intentional Tort.

Define: an intent to interfere or "inter-meddle" with a chattel of another, and actual interference (inter-meddling) occurs. This is short of conversion; liability is based on actual damage.

ELEMENTS:

(1) Intent to Interfere (inter-meddle) with the chattel of another, AND

(2) actual interference (inter-meddling) occurs.

Intentional Tort.

DEFINE/ELEMENTS:

(1)Every person,

(2) who under Color Of Law (statute, regulation, custom, or usage),

(3) of a State, Territory, or D.C.

(ø apply to Fed. government).

(4) Subjects, or causes to be subjected,

(5) any citizen (or person within jurisdiction thereof)

*implied intent

(6) Deprivation of any rights, privileges, or immunities secured by the Constitution and laws,

(7)Shall be liable to the injured party.

(1) 14th Amendment - "Due Process"

(2) 4th Amendment - "unreasonable search and seizure"

(3) 8th Amendment - "Excessive bail. . . excessive fines. . . nor cruel and unusual punishment inflicted."

(1) repeated over a period of time,

(2) Abuse of authority

(3) Directed at a vulnerable person/people

(4) Beyond all possible bounds of decency

(5) Shocks the conscience.

A plaintiff must prove all 5 elements:

(1) DUTY

(2) BREACH

(3) DAMAGE,

(4) ACTUAL CAUSE, and

(5) PROXIMATE CAUSE

(1) statute or regulation must clearly define a standard of conduct,

(2) the statue or regulation must have been intended to prevent the type of harm that the defendant's act (or omission) caused,

(3) The plaintiff must be a member of the class of person that the statute or regulation was designed to protect, AND

(4) the violation must have been the proximate cause of the injury.

An economic standard to determine if a breach of duty has occurred. The traditional formula is:

Breach occurs if - B < PL

B = Burden of adequate protection

P = Probability of Harm

L = Magnitude/Cost of Loss

(1) Intuitive - "seems negligent to me." (Jury decides)

(2) Solely by statutory prescription

(3) Hard-and-fast rules (established by courts)

(4) Customs of the community

(5) moral rule

Where multiple defendant's have acted to create Plaintiff's harm, a substantial factors test states that liability can be applied to any defendant whose behavior was a substantial factor in creating the harm.

Was it Necessary for the harm?

Was it Sufficient for the harm?

In a case where multiple Defendants are guilty of a tort against a Plaintiff, some jurisdictions allow the Plaintiff to sue all parties "Joint and Severally."

Joint and Several cases allow the Plaintiff to collect the entire sum from one party, whereas that party obtains contribution from other defendants in a separate case.

An exception to the Prima Facie rule.

It is rarely used, and it will get a negligence case to trial when there is no evidence in favor of the Plaintiff.

TRADITIONAL RULE:

(1) The harm is one that would not usually occur minus negligence.

(2) The instrument or agent responsible for the injury/harm was in exclusive control of the Defendant.

AND

(3) Circumstances indicate that there was no negligence on the part of the Plaintiff.

RESTATEMENT OF TORTS:

(1) The injury/harm is of the nature that it would not occur absent negligence.

(2) All other reasonable causes, including negligence of Plaintiff or third party, have been sufficiently eliminated by the evidence, AND

(3) Indicate negligence is within the scope of Defendant's duty to the Plaintiff.

A plaintiff's negligence is referred to as "contributory negligence" and is used to bar plaintiff from recovery.

This is a common law rule: still used in some jurisdictions - but is largely being replaced by Comparative Fault theories.

De Factor - a matter of the fact

De Jure - a matter of the law

In civil court the accusing party has the burden of proof, or the responsibility of persuading the court, that their claim is accurate.

There are some exceptions: Res Ipsa Loqitur would be an exception.

The traditional rule was that children under the age of 7 would not be held liable for their tortious acts.

The modern rule is that any child who is cognizant of his actions and the probable results, will be liable.

A tortious act will be transferred from one victim to another, even if the defendant was unaware that he would injur the second victim.

Intent can also be transferred between torts - from Assault to Battery.

Before the Comparative Fault theory was Contributory Negligence (which would bar any recovery) - The only excuse to contributory negligence was the "Last Clear Chance" donctrine.

In application it means that the Defendant cannot use contributory negligence as a defense, if he had the last clear chance to avoid harm, and did not.

Wrongful death claims are not made on behalf of the deceased, they are made on behalf of the decadent's dependants.

The claim is meant to make the dependent's "whole again" for the financial support that they have lost.

In Common Law a lawsuit could not continue if either party died before it ended.

Now a survival claim can be brought on behalf of, or against the estate of the deceased. A representative of the estate will stand in the place of the deceased.

Damages recovered in order to repay financial losses.

Medical Bills (Past and Future)

Lost Wages

Lost Earnings

Other expenses related to the tortious act

Damages awarded for other than financial compensation.

Pain and Suffering

Loss of Consortium

Loss of Opportunity

Any person who tries to save a person in harms way (at the expense of a tortfeasor) will not be liable to the victim for any harm they inflict while attempting to rescue them.

The original tortfeasor will, however, be liable to any harm inflicted on the rescuer while attempting to rescue the original victim.

Assumption of the risk is a defense to tortfeasors.

Express Assumption of the risk - express assumption of the risk involves contracts or explicit agreements.

Implied Assumption of the risk - Primary and Secondary.

Primary Implied Assumption of the Risk - this involves activities with known and expected risks such as sporting activities.

Secondary Implied Assumption of the Risk - This is unstructured activities where the plaintiff knowingly and voluntarily partakes in dangerous activities. This is similar to consent.

The negligent failure to diagnose a disability or defect, preventing parents from "avoiding" or "mitigating" damages (abortion).

Also negligent treatment of the mother, that later results in injury to the fetus/child qualifies as a wrongful birth claim. (this one is more challenging).

Collateral benefits are ignored (at trial) in most jurisdictions, however, in such cases the damages awarded will be subrogated back to the initial payer (usually an insurance company).

Payments made by the defendant or his agent will usually be reviewed by the court.

In Common Law - a Master could recover for loss of services to an apprentice injured by the tortfeasor.

It was later expanded to spouses.

Parents can collect this for loss of services from minor children, but not children for parents.

In Common Law a claim died with the party. Thus if a plaintiff, or a defendant, died before the claim was complete - the claim was barred.

There was no cause of action for wrongful death.

People are liable to negligent injury to a fetus.

The exception is that a mother has no duty to her unborn fetus; this is due to the unique relationship between the two.

The policy reasoning is that women would lose significant liberty if they could be liable for injury to fetus.

Defendants is usually liable for direct injury to a fetus caused by tortious acts.

Defendant may also be liable for injury resulting from negligent actions to mother, years earlier, that is a direct cause of injury to fetus.

For express "assumption of the risk," the waived liability is limited by the terms of the agreement. The agreement cannot be "all encompassing."

For Primary Implied "assumption of the risk," the liabilities waived must be foreseeable risks of the activity.

For Secondary Implied "assumption of the risk," the liabilities waived are for things not willing and wanton, or intentional. Also for defendant's disregard for the safety of others. (maybe?)

Essential services:Defendants performing essential services are not qualified for express or implied assumption of risk defense.

Unfair bargaining Advantage:An assumption of the risk agreement may be found invalid if defendant had an unfair bargaining advantage.

Fire-fighters and police officers are unable to sue for torts directly related to their job performance.

Thus a fire-fighter cannot sue a negligent fire-starter if he is burned while putting out the fire; however if he is bit by the fire-starter's dog in the process, he can sue for the dog-bite.

"Non-actions" or "Omissions"

Generally there is not duty to act, but exceptions do exist:

1. statutory duty

2. special relationships

3. creation of the risk

4. contractual duty

There are special relationships that create a higher than standard duty of care.

Carriers - bus drivers, pilots, taxi drivers, etc. have a near strict liability owed to their customers/passengers.

This has been replaced by the reasonable/prudent person standard in many jurisdictions.

1. Special relationship:

* Carrier/Passenger

*Innkeeper/guest

*Landowner/Lawful Entrant

*Employer/employee

*School/student

*Landlord/Tenant

*Custodian/person in custody

2. If defendant created the risk

3. duty created by statue.

Traditional rule gives 3 Classifications:

Licensee -An invited guest, on property for own benefit, (social guest or door to door salesman).

Duty to warn of known dangers.

Trespassor - an uninvited person. Generally a landowner has no duty to a trespassor except to avoid willful, wanton, or malicious actions.

If trespassor is known, landowner has a duty to warn of hidden dangers.

Invitee - welcome guests, there for landowners benefit, (customers, garbage man, etc.)

Reasonable care to keep premises safe.

MODERN TREND: Reasonable care standard to all, this is a minority rule.

Landowner has a duty to children.

(bottom line: if you have something that would attract children, and could harm them; as a landowner you have a duty to protect against harm that could be caused from the attractive nuisance).

Landowner has liability to physical harm caused to trespasser children if it is caused by an artificial condition on their land if:

1) the place where the condition exists is one upon which the possessor knows, or has reason to know, that children are likely to trespass,AND

2) The condition is one of which the possessor knows, or has reason to know, and which he realizes or should realize will involve an unreasonable risk of Death or Serious Bodily Harm to such children, AND

3) The children because of their youth do not discover the condition or realize the risk involved in inter-meddling with it or in coming within the area made dangerous by it, AND

4) The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, AND

5) The Possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect children.

The lessor assumes responsibility/duty for the land they are leasing, ø the landowner.

Exceptions:

1. common areas

2. injury resulting from failure of landowner to maintain anything he agreed to maintain, or

3. any injury caused by the performance of maintenance by landowner.

A private citizen can only bring a claim against a defendant if there is a private right of action.

This is different from a public right of action where only the government can bring charges.

Different from Contribution.

Indemnity is where a liable party, who is not at fault, seeks repayment from the party at fault in a separate trial, or from a contractual agreement.

An economic theory of liability.

It suggests that if a company is liable to all users and bystanders of the product, they can internalize the cost of liability by buying insurance and raising the price of the product.

This creates an ideal scenario because it causes the company to desire the safest and most efficient product possible.

In cases of vicarious liability an employer is typically not liable for actions of employees during their commute to and from work.

Exceptions to this rule involve

employers control at the time:

1. benefit from commute

2. dual purpose

3. payment for time and travel

4. etc

The key to determining vicarious liability is control.

Any tortious action performed by an employee, that is within the scope if employment, makes the employer vicariously liable.

Consider:

1. benefit to employer

2. time and location of action

    (was employee on duty, on site?)

3. Detour allows vicarious liability

4. Frolic - to leave course of an official duty will break   

    the liability.

INDEPENDENT CONTRACTORS

(WHEN THEY STILL BRING VICARIOUS LIABILITY):

If the employer has sufficient control over an independent contractor, the employer is still vicariously liable.

Employers also cannot delegate certain duties

(dangerous duties as an example).

performance of essential duties (surgery etc.)

If the plaintiff can show that the employee was within the scope of employment at the time of tort, the fact of being "en route" can be ignored.

Factors:

Benefit to the employer

Dual purpose

contracted payment for time and expense of travel

etc.

Some jurisdictions bar insurance from paying punitive damages, and others do not.

Some insurance policies exclude coverage of punitive damages.

It is argued that where an insurance company pays the punitive damages, the entire purpose of having them is invalidated.

A Judge determines if punitive damages are to be considered,

A Jury decides the amount of punitive damages are necessary.

These awards are to punish or deter future defendants from such behavior.

Pain and Suffering - damages awarded to compensate plaintiff for agony or physical pain that results from tort. Although pain and suffering has no financial equivalent, there is no better known method of compensation for the burden of P&S.

Loss of Enjoyment of Life: Some physical injuries affect the plaintiffs ability to perform desired tasks. This loss is usually compensated by a financial award.There must be some awareness of the lost opportunity.

Is it different than P&S? Some jurisdictions say yes, some say no. McDougald court says they are the same.