ATTACK SHEET

Intentional Torts (Battery, Assault, FI, IIED)

BATTERY Battery is the intentional infliction of a harmful or offensive bodily contact (1) Intent- (Transferred intent applies) (1) Desire or purpose to cause (actual) or (2) belief that the consequences are likely to follow (2) Infliction- But for Cause/ Proximate Cause (3) Harmful/Offensive Contacta. Bodily Harm b. Known eggshell can recover c. Offensive Contact Standard- reasonable person in the same circumstances Known eggshell- might be able to recover Defenses (Consent, Self Defense, Defense of a 3d party, Necessity, Protection of Property) ASSAULT Assault is the intentional causing of an apprehension of harmful or offensive conduct If there is battery, also consider if there was first assault. Only need to show that V witnessed what was about to happen to them. (1) Intent? a. D intended to commit battery and failed, or b. D intended to put P in apprehension, despite not wanting to cause contact (2) Imminent Contact (3) Apprehension a. V has to be aware of danger (4) Cause (Actual/Proximate) FALSE IMPRISONMENT False imprisonment occurs when the D intentionally confines the P. The P is confined when his will to leave a place with fixed boundaries is overcome in a way that would overcome the will of an ordinary person in Ps position. (1) Intent (legal/actual) a. Must intend to confine (2) Unlawful restrain of personal liberty or freedom of locomotion a. Actual/apparent barrier b. Overpower physical force c. Threat of physical force d. Asserted fake legal authority e. Duress (3) P is aware of confinement Defenses: Voluntary consent D used a threat of future action IIED IIED occurs whenever the D intentionally or recklessly causes, by outrageous conduct, sever emotional or mental distress (1) Intent a. D intended to bring out distress b. D knew with substantial certainly that the distress would result c. D recklessly disregarded the possibility that distress would result i. Abuse of Power, Taking advantage of vulnerable P, repeating or continuing acts (2) Extreme and outrageous conduct a. Must offend generally accepted standards of decency and morality i. Known Eggshell- can recover in some jurisdictions

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(3) Cause (4) Sever Emotional Distress DEFENSES (Consent, Self Defense, Defense of a 3d party, Necessity, Protection of Property) CONSENT (defense to all ITs) Rule: When parties engage in mutual combat in anger, each is liable to other for physical injury o Min.- No liability, even if combat is out of anger Prizefighting Rule- engaging in mutual combat without anger, no liability SELF DEFENSE(1) Belief (2) Reasonable (belief) (3) Imminent Threat (4) Reasonable Means a. Generally no duty to Retreat i. For deadly force is a duty in a minority of jurisdictions DEFENSE OF 3D PARTY (maj.) Broad Privilege- D is not liable if reasonable belief was a mistake (min.) Reasonable Belief has to be correct o Shoe stepping doctrine- D only privileged to defend 3d party V if V has privilege to defend for himself NECESSITY Threshold Q: Risk Averted > Risk Imposed Private- still liable for damage Public- complete defense PROTECTION OF PROPERTY RULE: One may use reasonable force in the protection of his property, but one may not use such means of force as will take human life or inflict bodily injury (1) Reasonable Belief (2) Reasonable Means a. Exception: Can use deadly force when trespasser is committing a violent felony

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STRICT LIABILITY
(1) Abnormally Dangerous Activities [ex. Blasting, nuclear particular purpose, research on contagious viruses, biochemical weapons] One who carries out an abnormally dangerous activity is strictly liable for any damage that proximately results from the dangerous activity (1) CREATES A FORESEEABLE AND HIGHLY SIGNIFIGANT RISK (2) ACTIVITY IS NOT OF COMMON USAGE Factors: (1) existence of high degree of risk of some harm, (2) likelihood that if harm that results will be great, (3) inability to eliminate risk by use of reasonable care, (4) unusualness of the activity, (5) inappropriateness of the activity to the place where it is carried out, (6) extent to which the activities value to the community is out-weighed by the activities dangerous attributes Cause/Damages! Defenses: Assumption of Risk Its really negligence: o Is a matter of common usage o Danger can be eliminated with due care

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STRICT PRODUCTS LIABILITY

MANUFACTURING Rule: D is liable when the product didnt meet manufacturers own specific design P must prove that the defect: (1) Existed (2) Was unreasonably dangerous (3) Caused Ps injury (4) Damages! DESIGN CE- for simple and non-technical products, defect is apparent RU- for complex designs, designs that are not readily apparent (1) Usefulness/ desirability- Utility to General Public (2) Likelihood of causing injury (3) Availability of substitute (4) Manuf. ability to eliminate unsafe characteristic without impairing usefulness/increasing cost significantly (5) Users ability to avoid danger by exercising due care (6) Users anticipated awareness (7) Feasibility of loss spreading (Insurance/internalizing cost) WARNING Rule: Duty to warn of reasonably knowable risk at time of the sale (1) NECESSITY: Is the warning necessary? a. Not a matter of common knowledge (2) ADEQUACY: Is the warning adequate? a. Indicates scope of danger b. Reasonably communicates extent/seriousness of harm c. Physical aspects of warning would alert reasonably prudent person d. Indicates consequences of failing to adhere e. Means to convey must be adequate (3) DIFFERENT OUTCOME- P would have acted diff had warning been adequate a. Heeding presumption- D acting different a rebuttable presumption. D has to introduce evidence that P would not have heeded the warning SELLER A seller of a product is liable without fault for personal injuri es (or other physical harm) caused by the product if the product is sold in a defective condition (1) D was a seller (2) D is in the business of the selling products of this type (3) Product was sold in defective condition (4) Product was expected to and did reach user without substantial change (5) Product was actual/legal cause of accident DEFENSES ASSUMPTION OF RISK Express Secondary ImpliedCOMPARATIVE N Duty to identify defect o Maj.- reasonable= full recover; unreasonable= reduced damages o Texas Rule: No duty to ID P must use product reasonably

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Vicarious Liability
EMPLOYEES XXX will argue that ____ is vicarious liable for ____. An employer is vicariously liable for Negligence of an employee while acting in the scope of the employers employment Birkner (Scope of employment)Test: (1) Kind~ Employees conduct must be of the general kind the employee is hired to perform (2) Type~ Employees conduct must occur substantially within the hours and ordinary spatial boundaries of employment (3) Vicarious Motivation~ Employers conduct must be motivated at least in part by the purpose of serving the employers interest INDEPENDENT Ks Apparent Authority (1) Representation by principle (2) Reliance on representation (3) Change in position by P due to that representation Concurring opinion to Roessler: [Plaintiff] may make the argument that the court should use the non delegable duty framework set out in the Roessler concurring opinion, where the hospital is always responsible. [P] could argue that this is a better standard because the patient is always vulnerable when he enters the hospital and doesnt have an opportunity to shop around for alternative doctors

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NEGLIGENCE
DUTY (1) (2) (3) (4) CREATION OF RISK SPECIAL RELATIONSHIP COMPANIONS ON A SOCIAL VENTURE 3D PARTY (Must have special relationship with either victim or tortfeasor) a. FOS of harm to P b. Degree of certainty that P will be injured c. Closeness b/w Ds conduct and Ps harm d. Policy of preventing future harm e. Burden to D and consequences to community if there is liability f. Availability/cost of insurance for risk STATUTORY a. Statute designed to prevent harm b. Type of harm statute meant to prevent the type P suffered c. P within class that statute intends to protect LANDOWNERS (Maj) a. Trespassor- No duty (unless frequent trespasser or child) b. Licensee- no material benefit/social guest- Duty to make safe/warn against known dangers c. Invitee- material benefit/expect premises to be safe- Duty to warn of known dangers, inspect property for discoverable ones LANDOWNERS (Min) a. Only a duty to lawful entrants i. FOS of harm ii. Purpose for entrant being on property iii. Time, manner, circumstance of entrance iv. Use to which premises are put v. Reasonableness of inspection, repair, warning vi. Opportunity/ease of repair or chance to give warning vii. Burden on land owner, community in providing adequate protection MUNICIPALITIES a. Generally no duty, except where i. Municipality assumes duty through promise/action ii. Knowledge by agents that inaction will lead to harm iii. Direct communication/contact between agent and V iv. Vs justifiable reliance NOT TO CREATE ED a. Direct NIED (no physical injury) i. Reasonable Fear ii. Immediate Injury iii. Causes ED 1. Need symptoms b. Psychic Harm: Without symptoms i. Reasonable Fear ii. FOS because of vulnerability iii. Severe ED c. Indirect IED (Bystander Claims) i. Death or serious injury because of Ds N ii. Proximity to accident iii. Witnessed Event- shock was direct iv. Closely related to victim v. Severe ED

(5)

(6)

(7)

(8)

(9)

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BREACH (1) Def: failed to use reasonable standard of care (2) DIRECT EVIDENCE (3) CIRCUMSTANCIAL EVIDENCE a. Constructive Notice i. Visible/Apparent ii. Existed for sufficient amount of time for discovery b. Res Ipsa i. Accident usually doesnt occur without N ii. Instrumentality in exclusive control of D iii. No contributory N (in modern jurisdictions, is in damages) (4) STANDARD a. REASONABLE PERSON i. FOS under same circumstances ii. Physical disability/ sickness taken into account iii. Children iv. Emergencies 1. Use LH equation b. LH EQUATION i. B>PL c. CUSTOM i. Exist ii. Reasonable iii. D knew of custom and failed to adhere (5) STATUTORY a. Per se unless there was an excuse i. Incapacity ii. Mistake of fact iii. Unable to act with due diligence iv. Compliance increases risk of harm v. Emergency (6) MEDICAL MALPRACTICE a. National Standard, use custom b. For INFORMED CONSENT, doctor has to i. Warn of all reasonable alternatives (invasive/non) 1. Prof. standard ii. Risk and likely outcomes 1. Reasonable patient standard iii. CAUSE for IC: Would patient have accepted alternative treatment if doctor had informed 1. Strong majority- reasonable patient (objective) 2. Minority- subjective (that specific) patient

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CAUSE (1) ACTUAL a. But for b. Substantial Factor if several potential causes (2) PROXIMATE a. An actors liability is limited to physical harms that made the actors conduct tortuous b. FOS of type of harm & Direct/Natural Result c. Palsgraff dissent: i. FOS, Directness, closeness in time and space, substantial contributing factor, not to many intervening causes (3) INTERVENING a. Neg. D whose conduct creates/increases risk of particular harm is not relieved from liability except where it is not within the scope of the risk i. SOR- harm suffered must be of same type as that which made Ds conduct N ii. Harm intentionally caused by 3d person no longer cuts off liability (4) JSL a. Concert in Action i. Liable if (1) Knew conduct of JTF constituted breach and (2) provided substantial assistance/encouragement b. Joint Conduct i. If P can definitively show that multiple Ds are at fault, but is unsure which one caused the injury, burden shifts to Ds to show who caused harm or all parties are liable c. Independent Conduct- successive actions (5) MARKET SHARE (PL) a. Multiple Ds to suit are clearly culpable (Prod. Lia.) but exact match of D to Ps injury is impossible to determine b. Liability assigned based on market share produced/sold/distributed (6) LOSS OF CHANCE (Medical) a. Need a material loss and it has to be more likely than not that doctor caused injury DAMAGES (1) COMPENSATORY (P/F) a. Economic i. Medical: hospital/doctors bills, medication, therapy, surgery, travel, therapeutic and other equipment ii. Lost Earnings 1. Current and future (due to change), fringe benefits (insurance, stock) iii. Property b. Non-Economic i. Pain and Suffering: Physical Pain, Recovery, Emotional Distress, LEL ii. P&S and LEL~ if unconscious most courts deny for P&S, and courts split on LEL (2) WRONGFUL DEATH a. On behalf of family members b. Economic: immediate losses (funeral), lost financial contributions, lost household services c. Non-Economic- LoC, ED (3) SURVIVAL a. Same as compensatory, except no LEL b. Comp. N will reduce damages (4) PUNATIVE a. Have to be for egregious wrongdoing, where action was motivated by spite, malice (5) NOMINAL a. Only when no compensatory damages (offensive contact batteries) b. Intended to recognize Ds wrongdoing

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DEFENSES TO NEGLIGENCE (1) CONTRIBUTORY N (2) COMPARATIVE N a. Ps fault > 50%, no recovery (majority) b. Ps fault is > = 50%, no recovery (3) ASSUMPTION OF RISK a. Express: Exculpatory Agreement i. Contract has to be clear and ambiguous ii. Cannot contravene Public Policy (Tunkl) 1. Concerns business type generally though suitable for public regulation 2. Party seeking exculpation engaged in performing service of great importance to public 3. Same party holds itself out as willing to perform service for any member of the public 4. Same party has decisive bargaining advantage 5. No available options for Ps to obtain/buy protection from N 6. Person or property of purchaser is placed under control of seller, subject to risk b. Implied (Generally) i. Knows the Risk (Knowledge of facts, appreciation of risk) 1. Scope of Risk applies: So cant use this if P suffers N risk outside of what is inherent or visible ii. Voluntarily consents c. Primary- Risk are inherent in activity. Negates Duty i. TEST: were dangers obvious and necessary or obscure/unobserved? d. Secondary- P knowingly encounters negligent and unreasonable risk created by D i. Voluntarily ii. Knowingly 1. Usually reduces damages