INTENTIONAL TORTSIntent:

1. Acting with the purpose of causing the underlying wrong; or2. Being substantially certain the underlying wrong will occur

Restatement §8A: Intent The word "intent" is used throughout the Restatement of this Subject to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.

Garratt v. Dailey: (5 year old, pulling chair)1. Acting with the purpose of causing the underlying wrong (substantive element of the tort); or2. Being substantially certain the underlying wrong will occur (underlying tort may arise).

NOTES: Responsible for reasonably foreseeable consequences – Spivey v. Battalgia (Galoot case) Mistake does not negate intent – Ranson v. Kitner (thought dog was wolf) Being mentally insane does not negate intent – McGuire v. Almy (nurse taking care of insane)

o If capable of entertaining intent TRANSFERRED INTENT: If a person intends to commit a tort on one person, they are responsible for any

actions towards a person they were unaware of, yet ended up committing the tort on. – Talmage v. Smith (throwing sticks at boys on roof)

Battery:1. Intending to cause2. harmful, or3. offensive4. contact

Restatement §13: Harmful ContactAn actor is subject to liability to another for battery if:

(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, an (b) a harmful contact with the person of the other directly or indirectly results.

Restatement §15 Bodily HarmBodily harm is any physical impairment of the condition of another's body, or physical pain or illness.

Restatement §18 Offensive ContactAn actor is subject to liability to another for battery if:

(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

(b) an offensive contact with the person of the other directly or indirectly results.

An act which is not done with the intention stated does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

Restatement §19: What constitutes offensive contact A bodily contact is offensive if it offends a reasonable sense of personal dignity.

In a crowded world some touching will occur, get used to it! – Wallace v. Rosen (Fire alarm tap) Contact with anything attached to the person or intimately identified with the person satisfies the contact

element. Fisher v. Carrousel Motor Hotel, Inc.

Not necessary to touch the plaintiff’s body or even his clothing. Knocking/snatching anything from P’s hand or touching anything intimately connected

with his person, when done in an offensive manner, is sufficient.

Assault:Apprehension of an imminent harmful or offensive contact with apparent ability to bring about the harm.

Restatement §21: Assault An actor is subject to liability to another for assault if

(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and(b) the other is thereby put in such imminent apprehension.

An action which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

Restatement §22: Attempt unknown to other An attempt to inflict a harmful or offensive contact or to cause an apprehension of such contact does not make the actor liable for an assault if the other does not become aware of the attempt before it is terminated.

Restatement §30: Conditional Threat If the actor intentionally puts another in apprehension of an imminent and harmful or offensive contact, he is subject to liability for an assault although he gives to the other the option to escape the contact by obedience to a command given by the actor, unless the command is one which the actor is privileged to enforce by the infliction of the threatened contact or by a threat to inflict it.

Restatement §31: Threat by Words Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person.

NOTES: to create in the mind of the party alleging the assault a well-founded fear of an imminent contact, coupled

with the apparent present ability to effectuate the attempt if not prevented – Western Union Telegraph Co. v. Hill (Guy reaches across counter at woman)

False Imprisonment:1. Intent to confine someone within boundaries fixed by the actor;2. They are directly or indirectly confined;3. They are aware of their confinement or harmed by it.

Restatement § 35: False ImprisonmentAn actor is subject to liability to another for false imprisonment if

(a) he acts intending to confine the other or a third person within boundaries fixed by the actor, and

(b) his act directly or indirectly results in such a confinement of the other, and

(c) the other is conscious of the confinement or is harmed by it.

An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatened bodily harm.

Restatement §36: Confinement

To make the actor liable for false imprisonment, the other's confinement within the boundaries fixed by the actor must be complete.

The confinement is complete although there is a reasonable means of escape, unless the other knows of it.

The actor does not become liable for false imprisonment by intentionally preventing another from going in a particular direction in which he has a right or privilege to go. (this would be exclusion)

Restatement §37: How Caused If an act is done with the intent to confine another, and such act is the legal cause of confinement to another, it is immaterial whether the act directly or indirectly causes the confinement.

Restatement §38: Confinement by Physical BarriersThe confinement may be by actual or apparent physical barriers.

Restatement § 39: Confinement by Physical Force The confinement may be by overpowering physical force, or by submission to physical force.

Restatement §40: Confinement by Threats of Physical ForceThe confinement may be by submission to a threat to apply physical force to the other's person immediately upon the other's going or attempting to go beyond the area in which the actor intends to confine him.

Restatement §40A: Confinement by Other DuressThe confinement may be by submission to duress other than threats of physical force, where such duress is sufficient to make the consent given ineffective to bar the action.

Restatement §41: Confinement by Asserted Legal Authority The confinement may be by taking a person into custody under an asserted legal authority.

The custody is complete if the person against whom and in whose presence the authority is asserted believes it to be valid, or is in doubt as to its validity, and submits to it.

Restatement §42: Knowledge of ConfinementUnder the rule stated in § 35, there is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it.

Restatement §45: Refusal to Release or Aid in EscapeIf the actor is under a duty to release the other from confinement, or to aid in such release by providing a means of escape, his refusal to do so with the intention of confining the other is a sufficient act of confinement to make him subject to liability.

Restatement §45A: Instigating or Participating in False ImprisonmentOne who instigates or participates in the unlawful confinement of another is subject to liability to the other for false imprisonment.

NOTES: False imprisonment is the direct restraint of one person of the physical liberty of another without adequate

legal justification – Big Town Nursing Home, Inc. v. Newman (wouldn’t let guy out of nursing home) The person must be aware at the time of the imprisonment that he is being falsely imprisoned, it is not

required that the person remember that imprisonment afterwards – Parvi v. City of Kingston (Drunk dude taken to golf course)

Moral restraint is not false imprisonment. A person who willingly enters somewhere and does not ask to leave (who actually said she wanted to stay and clear her name, in this case) cannot be considered to have been falsely imprisoned – Hardy v. LaBelle’s Distributing Co. (Thought employee was shoplifter)

False arrest arises when one is taken into custody by a person who claims but does not have proper legal authority. Enright v. Groves (Cop asks for driver’s license, she refuses, he arrests)

If police arrests you without legal authority – that would be a false

imprisonment claim – but if you are arrested with legal authority (probable cause) then no false imprisonment.

Failure to provide a means of exit constitutes false imprisonment.o Requires that be bound by physical boundaries which must be complete with no reasonable means

of escape – Whittaker v. Sandford (Kept lady on the ship) Confined by actual (water) or apparent (carrying 4 children) physical barriers It is not false imprisonment to keep someone out of a particular place (e.g., from getting

on to highway or into building), if there is a reasonable means of escape available. Reasonable means of escape – if it presents a risk to person, property or dignity it is not

reasonable. (open window on 2d floor (person), can leave through first floor window but must jump into large mud pond and ruin clothes (property), can leave through window naked (dignitary))

Intentional Infliction of Emotional Distress:1. The conduct must be intentional or reckless2. The conduct must be extreme and outrageous3. There must be a causal connection between the wrongful conduct and the emotional

distress; and4. The emotional distress must be severe.

Restatement §46: Outrageous Conduct Causing Severe Emotional DistressOne who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or (b) to any other person who is present at the time, if such distress results in bodily harm.

COMMENT:d. Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"

The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one's feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. See Magruder, Mental and Emotional Disturbance in the Law of Torts, 47 Harvard Law Review 1033, 1053 (1936). It is only where there is a special relation between the parties, as stated in § 48, that there may be recovery for insults not amounting to extreme outrage.

f. The extreme and outrageous character of the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity. The conduct may become heartless, flagrant, and outrageous when the actor proceeds in the face of such knowledge, where it would not be so if he did not know. It must be emphasized again, however, that major outrage is essential to the tort; and the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough.

i. Intention and recklessness. The rule stated in this Section applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct. It applies also where he acts recklessly, as that term is defined in § 500, in deliberate disregard of a high degree of probability that the emotional distress will follow.

Restatement §500: Reckless Disregard of Safety Defined The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.

Restatement §47: Conduct Intended to Invade Other Interests But Causing Emotional DistressConduct which is tortious because it intended to result in bodily harm to another or in the invasion of any other of his legally protected interests does not make the actor liable for an emotional distress which is the only legal consequence of his conduct.

Restatement §48: Special Liability Of Public Utility For Insults By ServantsA common carrier or other public utility is subject to liability to patrons utilizing its facilities for gross insults which reasonably offend them, inflicted by the utility's servants while otherwise acting within the scope of their employment.

NOTES: One who, without privilege to do so, intentionally causes severe emotional distress to another is liable (a) for

such emotional distress, and (b) for bodily harm resulting from it – State Rubbish Collector Ass’n v. Siliznoff (Trash/mafia-like case)

Plaintiff must establish SEVERE emotional distress. Does not extend to mere insults, indignities, threats, annoyances or trivialities – Slocum v. Food Fair Stores of Florida (“You stink to me”)

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress and if bodily harm results from it, for such bodily harm as well – Harris v. Jones (Worker at GM w/ speech problem) CASE ALSO GIVES DEFINITION ABOVE

For a family member to claim IIED must be present, the person inflicting the IIED must know they are present and intend to inflict the IIED upon them – Taylor v. Vallelunga (Witnessed her father being beaten up, but the beaters did not know she was there, can’t sue for IIED)

Trespass to Land:1. Intent to enter real property in the possession of another without permission or privilege2. Such entry results

Restatement §158: Liability for Intentional Intrusions on LandOne is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove

Restatement §159: Intrusions Upon, Beneath, and Above the Surface of Earth(1) A trespass may be committed on, beneath, or above the surface of the earth.(2) Flight by aircraft in the air space above the land of another is a trespass if, but only if, (a) it enters into the immediate reaches of the air space next to the land, and (b) it interferes substantially with the other's use and enjoyment of his land.

Restatement §160: Failure to Remove Thing Placed on Land Pursuant to License or Other PrivilegeA trespass may be committed by the continued presence on the land of a structure, chattel, or other thing which the actor or his predecessor in legal interest has placed on the land

(a) with the consent of the person then in possession of the land, if the actor fails to remove it after the consent has been effectively terminated, or

(b) pursuant to a privilege conferred on the actor irrespective of the possessor's consent, if the actor fails to remove it after the privilege has been terminated, by the accomplishment of its purpose or otherwise.

Restatement §163: Intended Intrusions Causing No Harm

One who intentionally enters land in the possession of another is subject to liability to the possessor for a trespass, although his presence on the land causes no harm to the land, its possessor, or to any thing or person in whose security the possessor has a legally protected interest.

Restatement §164: Intrusion Under MistakeOne who intentionally enters land in the possession of another is subject to liability to the possessor of the land as a trespasser, although he acts under a mistaken belief of law or fact, however reasonable, not induced by the conduct of the possessor, that he (a) is in possession of the land or entitled to it, or (b) has the consent of the possessor or of a third person who has the power to give consent on the possessor's behalf, or (c) has some other privilege to enter or remain on the land.

Notes: Every unauthorized and therefore unlawful entry on to the property of another is a trespass –

Dougherty v. Stepp (Survey crew on land they thought was theirs)i. Mistake is not a defenseii. Liable for damage even if damage is just the treading down of herbage.

Trespass doesn’t need actual damages, nuisance does – Bradley v. American Smelting and Refining Co. (particulate accumulation on land)

An object passing over someone’s land (at least close to the ground) is the same as passing on someone’s land and therefore trespass – Herrin v. Sutherland (Shooting at ducks over another persons land)

Failure to remove an item after a license for that item has expired is trespass – Rogers v. Board of Road Com’rs for Kent County (Plaintiff’s husband his fence anchor will mowing grass, it was supposed to be removed. Husband died)

A renter can claim trespass because at the time they are the possessor

Trespass to Chattels1. Intentional interference with personal property2. Actual harm or damage results.

Restatement §216: Definition of Possession of ChattelsA person who is in "possession of a chattel" is one who has physical control of the chattel with the intent to exercise such control on his own behalf, or on behalf of another.

Restatement §217: Ways to Commit Trespass to Chattel A trespass to a chattel may be committed by intentionally

(a) dispossessing another of the chattel, or (b) using or intermeddling with a chattel in the possession of another.

Restatement §218: Liability to the Person in PossessionOne who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,

(a) he dispossesses the other of the chattel, or (b) the chattel is impaired as to its condition, quality, or value, or (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest.

NOTES: Plaintiff must prove more than nominal damages – Glidden v. Szybiak (Girl bit by dog, she did not injure the

dog, no trespass to chattel) Email spamming was considered physical intermeddling with the chattel and therefore actionable as a

trespass to chattel – CompuServe Inc. v. Cyber Promotions, Inc. (Spamming was producing a demand on Compuserves equipment, demanding disk space and draining processor power)

Conversion:Exercise of dominion and control over chattel which so seriously interferes with the right of another to control it, that actor must be required to pay the other the full value of the chattel.

Restatement §222A: What Constitutes ConversionConversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.

In determining the seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important:

(a) the extent and duration of the actor's exercise of dominion or control; (b) the actor's intent to assert a right in fact inconsistent with the other's right of control; (c) the actor's good faith; (d) the extent and duration of the resulting interference with the other's right of control; (e) the harm done to the chattel; (f) the inconvenience and expense caused to the other.

Restatement §223: Ways of Committing Conversion(a) dispossessing another of a chattel as stated in §§ 221 and 222;(b) destroying or altering a chattel as stated in § 226;(c) using a chattel as stated in §§ 227 and 228;(d) receiving a chattel as stated in §§ 229 and 231;(e) disposing of a chattel as stated in § 233;(f) misdelivering a chattel as stated in §§ 234 and 235;(g) refusing to surrender a chattel as stated in §§ 237-241.

NOTES: Punitive damages allowed when the conversion was malicious but not innocent Damages

o The measure of damages for conversion is the value of the property converted. Is usually the market value which is determined at the time and place of the conversion.

o If there is no market value, but there is special value to the owner Can’t recover for sentiment alone but can recover for emotional harm suffered by the

loss. The publication of information which does not amount to literary property, scientific invention, or secret plans

formulated for the conduct of commerce, without an actual physical conversion of the documents containing the information does not amount to conversion – Pearson v. Dodd (Copying of documents of Senator, put back, did not interfere with use of)

An individual may be subject to liability even when acting in good faith (delivering goods to an imposter) If the convertor pays the full value of the chattel to the owner then no more recovery can be sought

DEFENSES/PRIVILEGES

Restatement §890: PrivilegesOne who otherwise would be liable for a tort is not liable if he acts in pursuance of and within the limits of a privilege of his own or of a privilege of another that was properly delegated to him.

Consent:Restatement §10A: ConsentThe word "consent" is used throughout the Restatement of this Subject to denote willingness in fact that an act or an invasion of an interest shall take place.

Restatement §892: Meaning of Consent

(1) Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor.(2) If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.

Restatement §892A: Effect of Consent(1) One who effectively consents to conduct of another intended to invade his interests cannot recover in an action of tort for the conduct or for harm resulting from it.(2) To be effective, consent must be: (a) by one who has the capacity to consent or by a person empowered to consent for him, and (b) to the particular conduct, or to substantially the same conduct.(3) Conditional consent or consent restricted as to time, area or in other respects is effective only within the limits of the condition or restriction.(4) If the actor exceeds the consent, it is not effective for the excess.(5) Upon termination of consent its effectiveness is terminated, except as it may have become irrevocable by contract or otherwise, or except as its terms may include, expressly or by implication, a privilege to continue to act.

Restatement §892B: Consent Under Mistake, Misrepresentation, or Duress(1) Except as stated in Subsection (2), consent to conduct of another is effective for all consequences of the conduct and for the invasion of any interests resulting from it.(2) If the person consenting to the conduct of another is induced to consent by a substantial mistake concerning the nature of the invasion of his interests or the extent of the harm to be expected from it and the mistake is known to the other or is induced by the other's misrepresentation, the consent is not effective for the unexpected invasion or harm.(3) Consent is not effective if it is given under duress.

Restatement §892C: Consent to Crime(1) Except as stated in Subsection (2), consent is effective to bar recovery in a tort action although the conduct consented to is a crime.(2) If conduct is made criminal in order to protect a certain class of persons irrespective of their consent, the consent of members of that class to the conduct is not effective to bar a tort action.

Restatement §892D: Emergency Action Without ConsentConduct that injures another doesn’t make the actor liable to the other, even though the other has not consented to it if:

(a) an emergency makes it necessary or apparently necessary, in order to prevent harm to the other, to act before there is opportunity to obtain consent from the other or one empowered to consent for him, and

(b) the actor has no reason to believe that the other, if he had the opportunity to consent, would decline.

Restatement §49-52: Effect of Consent/Apparent Consent/Consent by Whom Given/Consent to Whom GivenThe rules stated in §892A as to the effect of consent/apparent consent/person by whom consent is given/person to whose consent must be given to the invasion of an interest apply to the intentional invasion of interests of personality.

Restatement §55: Fraud or Mistake as to Harmful or Offensive Character of ConductThe rule stated in §892B(1) as to consent induced by fraud or mistake as to the essential character of conduct applies to fraud or mistake as to the harmful or offensive character of a contact.

Restatement §57: Fraud or Mistake as to Collateral MatterThe rule stated in §892B(2) as to consent induced by fraud or mistake as to a collateral matter not affecting the essential character of the conduct applies to intentional invasions of interests of personality.

NOTES: TEST: Would a reasonable person in defendant’s shoes think there was consent. Minors and mentally handicapped cannot consent (drunk can) Can have an outward manifestation of consent: Waiting in a line for shots, holding your arm up, did not say

anything – O’Brien v. Cunard S.S. Co. Consent can be established by custom and usage—Hackbart v. Cincinnati Bengals, Inc. (Consented to the

violence of football, but not violence outside the established rules) Consent to a surgery is not a consent to all surgery – Mohr v. Williams (Doctor was going to operate on right

ear, but didn’t see anything wrong with it, operated on left ear instead = BATTERY). The doctor can be held liable for not obtaining the consent of a patient that is unconscious for non-emergency surgery.

There is no privilege of consent if obtained under a false belief – De May v. Roberts (Scattergood witnessed birth)

Self-DefenseRestatement §63: Self-Defense By Force Not Threatening Death or Serious Bodily Harm (1) An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.(2) Self-defense is privileged under the conditions stated in Subsection (1), although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself, (a) by retreating or otherwise giving up a right or privilege, or (b) by complying with a command with which the actor is under no duty to comply or which the other is not privileged to enforce by the means threatened.

Restatement §65: Self-Defense By Force Threatening Death or Serious Bodily Harm(1) Subject to the statement in Subsection (3), an actor is privileged to defend himself against another by force intended or likely to cause death or serious bodily harm, when he reasonably believes that (a) the other is about to inflict upon him an intentional contact or other bodily harm, and that (b) he is thereby put in peril of death or serious bodily harm or ravishment, which can safely be prevented only by the immediate use of such force.(2) The privilege stated in Subsection (1) exists although the actor correctly or reasonably believes that he can safely avoid the necessity of so defending himself by (a) retreating if he is attacked within his dwelling place, which is not also the dwelling place of the other, or (b) permitting the other to intrude upon or dispossess him of his dwelling place, or (c) abandoning an attempt to effect a lawful arrest.(3) The privilege stated in Subsection (1) does not exist if the actor correctly or reasonably believes that he can with complete safety avoid the necessity of so defending himself by (a) retreating if attacked in any place other than his dwelling place, or in a place which is also the dwelling of the other, or

(b) relinquishing the exercise of any right or privilege other than his privilege to prevent intrusion upon or dispossession of his dwelling place or to affect a lawful arrest.

NOTES:Self-Defense – Governed by an objective test

a) Timing requirement must be satisfiedi) The tort defended against is either (1) now occurring, OR (2) just about to occur.

(1) If already occurred, there is no defense. (Retaliation)b) The privilege of self-defense arises when

i) The act is just about to occur, OR you are in fresh pursuit of the personii) Reasonable belief that the tort is being committediii) Reasonable force has been used

(1) Majority rule no duty to retreat, but under Modern trend, there is a duty to retreat if:(a) You can do it safely and(b) Are not in your own home.

(i) Only applicable when you have to use serious force, does not apply to reasonable force cases.

(2) Never to include serious bodily injury is involvedc) Existence of Privilege – anyone is privileged to use reasonable force to defend himself against a threatened

battery on the part of another.d) Retaliation – the privilege is one of defense against a threatened battery, not one of retaliation.

i) When the battery is no longer threatened, the privilege terminates.ii) Even if a person initially was an aggressor, once he retreated he has a right to self-defense against the

person he initially threatened.e) Reasonable Belief – the privilege exists when the defendant reasonably believes that the force is necessary

to protect himself against battery, even though there is in fact no necessity. E.g., person has a reputation for shooting people, you get into an argument with him, he puts his hand in his pocket, you reasonably believe

(because of his reputation) that he is going to draw a revolver, and you hit him over the head with a cane, knocking him unconscious.i) Reasonable mistake on the part of the actor will protect him. (think about above scenario)

f) Provocation – insults, verbal threats, or abuvise language do not justify the exercise of self-defense.i) If the abusive words are accompanied by an actual threat of physical violence reasonably warranting an

apprehension of imminent bodily harm, one may be privileged to defend.ii) One does not have to wait for the “blow” to fall before acting.iii) When accompanied by an overt hostile act, oral abuse may amount to a challenge to fight and

constitute consentRestatement § 69: Effect of Actor’s ConsentIf the actor has consented to any particular bodily contact, or any other invasion of his interests of personality, he is not privileged to defend himself against such an invasion unless his consent was obtained by fraud or has been withdrawn; but he retains his normal privilege of self-defense against any contact or invasion not included within his consent.

g) Amount of Force – the privilege is limited to the use of force that is or reasonably appears to be necessary for protection against a threatened battery. Defendant has the burden of proving that use of force was reasonable.i) Differences in age, sex, height, weight and relative strength are proper considerations.ii) To justify resistance with a deadly weapon, defendant must have a reasonable apprehension of loss of

life or great bodily injury.h) Retreat – may stand his ground and use any force short of that likely to cause serious injury if you can do so

and retreat without increasing his danger.i) In one’s own home, you can stand ground and use deadly force, “even kill,” assailant

i) Injury to Third Party – E.g., C defending himself against A, unintentionally shoots B instead. So far as “transferred intent” is concerned, the privilege of self-defense is carried over, and C is held not to be liable to B in the absence of some negligence towards him.

Defense of Others Nature of Privilege – privilege similar to that of self-defense. It is recognized for the defense of third persons.

o Early common law recognized a feudal privilege in the master of the household to defend members of his family and his servants against attack.

Reasonable Mistake – courts have differed in the effect of a reasonable mistake as to the necessity for taking action

o Some courts hold that the intervenor steps into the shoes of the person he is defending, and is privileged only when that person would be privileged to defend himself.

Defense of Property Can use force to protect your property, but not deadly force unless you are there and in danger – Katko v.

Briney (Shot-gun trap in a house that they don’t live in)

Recovery of Property You have a right to retake property, if it can be down without unnecessary violence or a breach to the peace

– Hodgeden v. Hubbard (Guy steals stove using fraud, employee chases him, takes out knife and gets it back.

Shopkeeper’s Privilege. Bonkowski v. Arlan’s Department Store (lady was shopping in store, suspected to have shoplifted was stopped and searched right outside the store) – subcategory of this privilege – Shopkeeper’s privilegei) A businessman who reasonable suspects a customer of theft may in order to make reasonable inquires

hold the person for a short time if that customer has not left the storeii) There is a shopkeeper’s privilege to detain a customer if there is reasonable belief that that person has

stolen goods. (1) Always have to make a demand to recover chattel before you use force.

iii) Restatement §120A: Recovery of property privilege requires two-part inquiry (1) D has to have reasonable belief that person has shoplifted

(2) Reasonable basis to detain person and detention itself was reasonable in manner, scope, length, etc.

(3) Note: restatement provision allows leeway for mistake – therefore shop owners have some sort of safety net

iv) SEE (SM pg 29) Section 812.015, Florida Statutes (parts 3A,B,C)(1) Law enforcement officer, merchant, farmer, or transit agency’s employee or agent, who has

probable cause to believe that a retail theft, farm theft, transit fare evasion, or trespass, or unlawful use or attempted use of any shoplifting or inventory control device countermeasure, has been committed by a person, an in the case of retail or farm theft, that the property can be recovered by taking the offender into custody may, for the purpose of attempting to effect such recovery or for prosecution, take the offender into custody and detain the offender in a reasonable manner for a reasonable length of time. In the case of a farmer, taking into custody shall be effectuated only on property owned or leased by the farmer. In the event the merchant, merchant’s employee, farmer, or a transit agency’s employee or agent takes the person into custody, a law enforcement officer shall be called to the scene immediately after the person has been taken into custody.

(2) The activation of an anti-shoplifting or inventory control device as a result of a person exiting an establishment or a protected area within an establishment shall constitute reasonable cause for the detention of the person so exiting by the owner or operator of the establishment or by an agent or employee of the owner or operator, provided sufficient notice has been posted to advise the patrons that such a device is being utilized. Each such detention shall be made only in a reasonable manner an only for a reasonable periods of time sufficient for any inquiry into the circumstances surrounding the activation of the device.

(3) The taking into custody and detention by a law enforcement officer, merchant, merchant’s employee, farmer, or a transit agency’s employee or agent, if done in compliance with all the requirements of this subsection, shall not render such law enforcement officer, merchant, merchant’s employee, farmer, or a transit agency’s employee or agent, criminally or civilly liable for false arrest, false imprisonment, or unlawful detention.

Necessity:The definition of a necessity defense: a defense to liability for unlawful explanation where the conduct is unavoidable and is justified by preventing the occurrence of a more serious harm.

PUBLIC NECESSITY: Necessity provides a privilege for private rights. If a person destroys the property of another out of necessity, for the greater good of the community, that person cannot be held liable – Surocco v. Geary (Fire in San Francisco, destroyed plaintiff’s house to stop the spread)

PRIVATE NECESSITY: When acting out of private necessity – no tortious conduct can be found but as is the case in Vincent, any damage you do while acting out of private necessity is your responsibility – Vincent v. Lake Erie Transport Co. (Ship in a storm ties to dock and damages dock)

This defense only applies to property torts. There is a difference between private and public necessity. When acting under private necessity, there is still liability for damages, although no tort claim, whereas in public necessity, there is no damages liability nor tort claims. Necessity prevails over defense of property.

Authority of Law:Police officers, military personnel, prison officials, regulatory inspectors, or officials at mental health facilities may act under authority of law, engaging in conduct that otherwise would be tortious.

Discipline:Several factors to use to determine whether the conduct was within the privilege of discipline or falls outside of it

i. Ageii. Sexiii. Condition of childiv. Nature of offense and apparent motivev. Influence of child’s conduct as example on other children in same familyvi. Whether force or confinement is reasonably necessary and appropriate to compel

obediencevii. Whether it is disproportionate to the offense, unnecessarily degrading, orviii. Likely to cause serious or permanent harm

Justification:Generally, restraint or detention, reasonable under the circumstances and in time and manner, imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property in one’s lawful possession or custody is not unlawful.

A parent, guardian or teacher entrusted with the care or supervision of a child may use physical force reasonably necessary to maintain discipline or promote the welfare of the child – Sindle v. New York City Transit Authority (Bus driver takes kids to police station without letting them out, due to the destruction they are causing).

Negligence: Duty & Breach

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“the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do” Blyth v. Birmingham Waterworks, Co.

Duty: (Foreseeability) Is not self defined, must be established through a breach analysis

Specific Duty Cases (cases where court has already run breach analysis) “If the nature of the thing is such that it is reasonably certain to place life and limb in peril when negligently

made, it is then a thing of danger. If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser, and used without new tests, then irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully.” – MacPherson v. Buick Motor Co. (one of the wheels was made of defective wood)

University not under a duty to students for their private lives – Hegel v. Langsam INVITEE: “There may be a legal obligation to take positive or affirmative steps to effect the rescue of a

person who is helpless or in a situation of peril, when the one proceeded against is a master or invitor, or when the injury resulted from used of an instrumentality under the control of the defendant.” – L.S. Ayres & Co. v. Hicks (6 year old boy got fingers trapped in escalator)

Particularized Foreseeability “in this kind of case will conform the standard of Foreseeability to the empirical evidence and common experience that indicates a wife may often have actual knowledge or special reason to know that her husband is abusing or is likely to abuse an identifiable victim and will accommodate the concerns over the inherent difficulties in predicting such furtive behavior” – J.S. and M.S. v. R.T.H. (Abuse of neighbor children by husband, wife also found negligent)

If a professional (Dr. or lawyer) determines a patient/client poses a serious danger of violence to others, he bears the duty to exercise reasonable care to protect the foreseeable victim of that danger – Tarasoff v. Regents of University of California (Therapist case)

NEG

D

D B

C

Breach Analysis[Carrol Towing]P x G > B =NEGP x G < B =NOT

StatutesMar-Cam Test

IN FACTHill: But-For TestAnderson: Substantial Factor

ProximatePalsgraf: Foreseeability of PlaintiffWagon Mound: Foreseeability of InjuryPolemis: Direct [But-For]

ForeseeabilityGulf-Refining Test

Breach: (Foreseeability)Breach Analysis: B < PL = negligence

P: Probability of the injury (Lubitz & Blyth)L: Gravity of the injury (Chicago R.R.)B: Burden of adequate precautions (including opportunity costs) (Chicago R.R. & Davison)

United States v. Carroll Towing Co. a/k/a the Learned Hand Test(Chicago, B. & Q.R. Co. v. Krayenbuhl [Burden not too great] and Davison v. Snohomish County [burden to great])

If Given a Statute: Mar-Cam Test (If test is not satisfied then resort to common law B < PL)1. Is the plaintiff within the class the statute was intended to protect?2. Is the harm suffered that which the statute was intended to prevent?

Stachniewicz v. Mar-Cam Corp.

If yes: Effects of a statute: (Use a Statute to more easily prove Duty & Breach) Zeni v. Anderson1. Rebuttable Presumption of Negligence: In many cases violation of a statute establishes only a

prima facie case. The court held the general rule is “evidence required to rebut the presumption should be positive, unequivocal, strong and credible” (P has established negligence per se but D has evidence to show it is not per se).

2. Negligence per se: The court said “if the defendant is liable despite the exercise of due care and the availability of a reasonable excuse, this is really strict liability not negligence.” The court further said that legislative intent chose not to deal with private rights and therefore not carry over to torts. (P has established negligence and there is no excuse that D could give).

3. Evidence of Negligence (Piece of evidence P introduces helps in the Breach Analysis-Carroll).

Restatement §283: Conduct of a Reasonable Man: The StandardUnless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.

Comment C. Standard of the “reasonable man. Negligence is a departure from a standard of conduct demanded by the community for the protection of others against unreasonable risk. The standard which the community demands must be an objective and external one, rather than that of the individual judgment, good or bad, of the particular individual. It must be the same for all persons, since the law can have no favorites; and yet allowance must be made for some of the differences between individuals, the risk apparent to the actor, his capacity to meet it, and the circumstances under which he must act. The actor is required to do what this ideal individual would do in his place. The reasonable man is a fictitious person, who is never negligent, and whose conduct is always up to standard. He is not to be identified with any real person; and in particular he is not to be identified with the members of the jury, individually or collectively. It is therefore error to instruct the jury that the conduct of a reasonable man is to be determined by what they would themselves have done. This standard of the reasonable man is that it enables the triers of fact who are to decide whether the actor's conduct is such as to subject him to liability for negligence, to look to a community standard rather than an individual one, and at the same time to express their judgment of what that standard is in terms of the conduct of a human being. The standard provides sufficient flexibility, and leeway, to permit due allowance to be made for such differences between individuals as the law permits to be taken into account, and for all of the particular circumstances of the case which may reasonably affect the conduct required, and at the same time affords a formula by which, so far as possible, a uniform standard may be maintained.

Restatement §291: Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done

Restatement §292: Factors Considered in Determining Utility of Actor's ConductIn determining what the law regards as the utility of the actor's conduct for the purpose of determining whether the actor is negligent, the following factors are important:

(a) the social value which the law attaches to the interest which is to be advanced or protected by the conduct;(b) the extent of the chance that this interest will be advanced or protected by the particular course of conduct;(c) the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct.

Restatement §293: Factors Considered in Determining Magnitude of RiskIn determining the magnitude of the risk for the purpose of determining whether the actor is negligent, the following factors are important:

(a) the social value which the law attaches to the interests which are imperiled;(b) the extent of the chance that the actor's conduct will cause an invasion of any interest of the other or of one of a class of which the other is a member;(c) the extent of the harm likely to be caused to the interests imperiled;(d) the number of persons whose interests are likely to be invaded if the risk takes effect in harm.

Restatement §296: Emergency (1) In determining whether conduct is negligent toward another, the fact that the actor is confronted with a sudden emergency which requires rapid decision is a factor in determining the reasonable character of his choice of action.

(2) The fact that the actor is not negligent after the emergency has arisen does not preclude his liability for his tortious conduct which has produced the emergency.

Restatement §328A: Burden of Proof In an action for negligence the plaintiff has the burden of proving

(a) facts which give rise to a legal duty on the part of the defendant to conform to the standard of conduct established by law for the protection of the plaintiff,

(b) failure of the defendant to conform to the standard of conduct,

(c) that such failure is a legal cause of the harm suffered by the plaintiff, and

(d) that the plaintiff has in fact suffered harm of a kind legally compensable by damages.

FORESEEABILITY: (Negligence at its core)

TEST for foreseeability: “The existence of some real likelihood of some damage and the likelihood is of such appreciable weight and moment as to induce, or which reasonably should induce, action to avoid it on the part of a person of a reasonable prudent mind.” – Gulf Refining Co. v. Williams (bungcap case. There was NOTICE- CITE FOR EXAM IF BREACH OF DUTY)

Installed fire plugs leaking in a severe frost, not negligence, frost was extreme – Blyth v. Birmingham Waterworks, Co.

Probability (average circumstance) coupled with the existence of possibility.

BURDEN: Failure to do something that was not required was not negligence. Court did not see it as reasonable that the

county should have to erect guardrails on every road. Since they aren’t required to do so, the failure of the guardrail in this case was not negligence – Davison v. Snohomich County

INTERNAL/EXTERNAL CIRCUMSTANCES: Internal: Stupid people are not held to the reasonable stupid person standard – Vaughan v. Menlove External: If you are aware or should be aware of the danger you are undertaking, held to the standard that

you knew or should have known – Delair v. McAdoo (tire blow-out case) External: Industry standards can be evidence that you were not negligent, but the entire industry can be

negligent – Trimarco v. Klein (Tub glass) External: Sudden emergency can make B bigger, things that may normally be negligent may not be in

emergency situations – Cordas v. Peerless Transportation Co. (Driver at gunpoint) Internal: People with physical disabilities held to a reasonable disabled person standard – Roberts v. State of

Louisiana (Where are my Rasinettes guy?)

Internal: Children are typically held to a standard of “conduct to that expected of a reasonably careful child of the same age, intelligence, maturity, training and experience” because they will one day learn. However, when children partake in activities that are inherently dangerous (pulling a tube on a snowmobile) they are held to an adult standard of care – Robinson v. Lindsay

Internal: Sudden mental episodes are held to a standard of a person suffering a sudden heart attack, epileptic seizure, stroke or fainting, unless the person had prior warning signs – Breuig v. American Family Ins. Co. (Batman lady)

PROFESSIONAL: A professional is held to a standard of an ordinary prudent professional in that field – Heath v. Swift Wings

(Plane crash; a specialist may be held to a standard greater than a general practitioner) LAWYERS: To get malpractice must show that the lawyer had an out (another way of doing something) and

that if they had done it the other way they would have won the case. “An attorney who acts in good faith and on the honest belief that the advice and acts are well founded is not answerable for mere error of judgment or mistake in an unsettled point of law.” – Hodges v. Carter

MEDICAL MALPRACTICE: Doctors are held to a national standard, not a local one, they are nationally board certified – Morrison v. MacNamara (standing urethral smear)

o Informed Consent, must prove:1) The defendant physician failed to inform him adequately of material risk before securing

his consent to the proposed treatment;2) If he had been informed of the risks he would not have consented to the treatment;3) The adverse consequences that were not made known did in fact occur and he was

injured as a result of submitting to the treatment.Scott v. Bradford

CIRCUMSTANTIAL EVIDENCE (Speaking to Notice/Foreseeability): Appearance of the banana led to the conclusion that it had been there a while. Therefore the court said it

could conclude it wasn’t recently dropped and the obligation rests on the defendant to keep its station reasonably safe – Anjou v. Boston Elevated Railway Co.

Must show defendant: 1. Put the danger there 2. had notice that it was there; or 3. had constructive notice – Joye v. Great Atlantic and Pacific Tea Co. (another banana case)

Plaintiff has burden of producing evidence that the dangerous condition existed for at least a sufficient time to support a finding that the defendant had constructive notice of the hazardous condition – Ortega v. Kmart Corp. (Spilt milk)

When operating methods of the proprietor are such that dangerous conditions are continuous or easily foreseeable, the logical basis for the notice requirement dissolves. Then, actual or constructive notice of the specific condition need not be proved – Jasko v. F.W. Woolworth Co. (serving pizza on wax paper)

Contributory Negligence: If plaintiff’s action is also negligent and their negligence caused the injury then no recovery.

Comparative Negligence: Plaintiff’s negligence is compared to Defendant’s negligence and recovery is calculated as Defendant’s negligence % less the Plaintiff’s negligence %.

Causation in FactBut for test – Hill v. Edmonds (But for the defendant parking in the middle of the road with his lights off the injury wouldn’t have happened; but for the plaintiff crashing into the parked defendant the injury wouldn’t have happened)

Substantial Factor Test- Two causes combine; either may have caused the injury by themselves (but for does not work!) Anderson v. Minneapolis, St. P. & S. St. M. R.R. Co. (Two fires, either may have burned the plaintiff’s land on its own. The Court ruled “The negligent party should be held liable even though it cannot be said that the fire they created was the one that burned the property.WHEN YOU DON’T NEED TO PROVE CAUSATION IN FACT:

ACTING IN CONCERT: BURDEN SHIFTS TO DEFENDANT (defendants point fingers). When burden shifts, causation in fact need

not be proven! – Summer v. Tice (hunting party, like Ybarra, but Ybarra is only in the medical field)SINDELL EXCEPTION

DES, couldn’t prove which drug manufacturer produced the one that injured, court held “each manufacturer should be liable for the approximate responsibility for the injuries caused by its own product.” LIMITED to 1.

Concentrate industries; and 2. Where delayed effects make it impossible to know. – Sindell v. Abbott Laboratories

RES IPSA LOQUITUR “The thing speaks for itself” – Byrne v. Boadle (barrel of flower) “Res Ipsa Loquitur applies in an accident which on the basis of common experience and as a matter of

general knowledge, would not occur but for the failure to exercise reasonable care” – McDougald v. Perry (130 lbs spare tire flies out of moving vehicle) “The plaintiff is not required to eliminate with certainty all other possible causes or inferences…All that is required is evidence from which reasonable persons can say that on the whole it is more likely that there was negligence associated with the cause of the event than there was not.”

PLAINTIFF MUST PROVE:o That there was an accidento That the thing or instrumentality which caused the action was at the time of and prior thereto under

the exclusive control and management of the defendant; o That the accident was such that in the ordinary course of events, the defendant using ordinary

care, the accident would not have happened. Larson v. St. Francis Hotel

Restatement §328D: Res Ipsa Loquitur

(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when

(a) the event is of a kind which ordinarily does not occur in the absence of negligence;(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and(c) the indicated negligence is within the scope of the defendant's duty to the plaintiff.

(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.

(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.

Proximate Cause (Foreseeability)Eggshell plaintiff: “The defendant must take the plaintiff as he finds him and hence may be held liable in damages for aggravation of a pre-existing illness – Bartolone v. Jeckovich (Guy had breakdown and couldn’t work out, accident aggravated pre-existing schizophrenic condition)

THREE TESTS FOR PROXIMATE CAUSE

PALSGRAF: Foreseeability of the plaintiff or whether the plaintiff was in the zone of danger “Risk imports relation” (the more risk you create…the greater the zone of danger…a greater duty owed) Palsgraf is the dominant test Odd that Cardozo required the injured Plaintiff to pay the costs of the Defendant

Palsgraf v. Long Island R.R. Co.WAGON MOUND 1& 2:

Foreseeability of the injury “The essential factor in determining liability is whether the damage is of such a kind as the reasonable man

should have foreseen”Overseas Tankship (U.K) Ltd. v. Morts Docks & Engineering Co. Ltd.

POLEMIS: Direct Causation: defendant liable for all things proceeding from action (intervening-superseding causes

break nexus); basically a “But for” Test Foreseeability doesn’t matter

In re Arbitration Between Polemis and Furness, Withy & Co. Ltd.

INTERVENING CAUSES:

Questions of Proximate Cause are typically left to the jury but can go to the judge is the injury was not reasonably foreseeable.– Yun v. Ford Motor Corp. (Plaintiff knew spare tire was loose based on service center giving notice of such. On the highway, it fell off and rolled across to the side and the Plaintiff’s 65yr. old father crossed the highway to retrieve the tire and was hit on his way back. Plaintiff sued company for defective spare tire but court determined that the father lacked common sense when he crossed the street and that it was unforeseeable to defendant that a person would do this and took the question of proximate cause as a matter of law rather than a matter of fact)

“Where acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant’s negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant’s conduct, it may well be a superseding act which breaks the causal nexus.” – Derdiarian v. Felix Contracting Corp. (Defendant Dickens suffered epileptic seizure and hit the plaintiff which caused the plaintiff to be splattered with hot liquid enamel)

Intentional acts will break the causal nexus between a negligent defendant. “A” proximate cause v. “The” proximate cause– Watson v. Kentucky & Indiana Bridge & R.R. Co. (Tank car full of gas spilt on road, person may have lit cigar or intentionally started the fire, if it was intentional it was an superseding cause and no liability for negligence)

Suicide may or may not be a superseding intervening cause – Fuller v. Preis (because of mental derangement, guy was unable to resist impulse to commit suicide)

Rescuers are to be anticipated and should not be barred from bringing suits (quoted Cardozo in saying “Danger invites rescue”) – McCoy v. American Suzuki Motor Corp. (Driver attempted to flag people to warn of wreck, was hit on the way back to the site)

Classic Examples: Act of God/Force of Nature: extraordinary, unforeseeable, and independent Intentional Acts: criminal behavior

PUBLIC POLICY: Dram Shop: Legislation imposing strict liability upon the seller of alcohol when sale results in harm to a 3rd

party. Should a social host be held liable to adults who become visibly intoxicated? Kelly v. Gwinnell & Zak Liability to a mother’s Injury should not be extended to a future child who may be impacted by that prior injury

because it would draw the line to far. Enright v. Eli Lilly & Co.

JOINT TORTFEASORS In Florida defendant is not liable for entire amount, just the amount they caused (Comparative Negligence)

F.S. Ch 768.81 Joint Liability: each D responsible for entire loss; occurs when damage is indivisible

(two hunters shoot lung at same time), one lawsuit for all Ds. P can recover 100% of damages from a D who is only 5% negligent.

Release Rules: must be careful of how you release someone in an indivisible tort. If you say “I release you” instead of “I release you and only you,” you could accidentally let all parties off the hook.

Several Liability: each D responsible for his share; occurs when damage is divisible (hunters hit hand & foot); separate lawsuits for each D; no contribution issues. P can recover damages from each D in proportion to their negligence.

Mary Carter Agreements: Secret agreements between a plaintiff and defendant. Defendant turns on other defendants. Against public policy – Elbaor v. Smith

Damages1. Past Physical and Mental Pain2. Future Physical and Mental Pain3. Future Medical Expenses4. Loss of Earning Capacity5. Permanent Disability and Disfigurement

Anderson v. Sears, Roebuck & Co. Note Pg. 532

o All future pecuniary losses reduced to present value.o Most jurisdictions adjust for inflation

o Pain and suffering damages are not reduced by present value

ISSUE: Whether the acts were negligent.RULE: Negligence occurs when a person breaches a duty they have causing damages. Duty is not self-defined and must be established by way of a breach analysis. If we have a statute we must use the Mar-Cam Test, which looks at whether the plaintiff was the type of person the statute intended to protect and whether the statute intended to protect the type of injury that was caused. (Run Mar-Cam)

If there is not a statute or if the statute does not apply, we must use the test established in Carroll Towing. B<LP, where “B” is the burden of doing things differently, “L” is the gravity of the injury and “P” is the probability of the injury. The burden is the cost of doing things differently, including opportunity costs, direct expenses, the time needed and various other factors. The gravity speaks to how serious an injury that results from the alleged negligence would be. While the probability is the probability of that injury occurring, foreseeability is important in determining whether the injury was probable. (run Carroll Towing)

It is next important to look at causation in fact. We must determine whether the injury was caused by the breach of the duty. To do this we determine, using, Hill v. Edmonds, that but for the plaintiff’s actions the injury would not have occurred. If there are concurrent causes, we would use the Substantial Factor test mentioned in Anderson v. Minneapolis. With concurrent causes it could not be said that but for the one cause, the other cause would not resulted in similar damages.

Lines are often drawn in torts, at times the court refuses to extend liability beyond a certain point, the refusal to extend beyond this point is referred to as proximate cause. Courts primarily use three tests to determine whether there was proximate cause, the tests outlined in Polemis, Wagon Mound, and Palsgraf. Polemis establishes a direct causation, which states that as long as the result can be traced back to the action, without any superseding or intervening factors, it is the proximate cause. Polemis in essence uses the same “but for” test used in causation in fact. The test articulated in Wagon Mound depends on the foreseeability of the injury. Whether at the time of the actions, the resulting injury was foreseeable. The test stated in Palsgraf is used by the majority of the courts, the test hinges on whether the plaintiff was foreseeable. The test establishes a “zone of risk,” if the plaintiff is in that zone of risk they are said to be a foreseeable as the plaintiff.