TORTS OUTLINE

Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

. INTRODUCTION TO TORT LAW

1. What is a TORT?
A. A TORT is a civil wrong other than a breach of contract for which a remedy may be obtained,
usually in the form of damages, where the STANDARD OF PROOF is MORE LIKELY THAN
NOT, or more commonly known as the PREPONDERANCE OF THE EVIDENCE STANDARD.
B. The major functions of tort law of compensating victims and punish for wrong doings.
C. Conduct that either falls below some LEGAL STANDARD, where the D is at fault because he
INTENDS TO HARM another person or assumes an UNREASONABLE RISK OF HARM to
another person.
D. HARM is the result of the D committing a WRONG, not so much that the D acted wrongfully.
E. The injured person is said to have a CAUSE OF ACTION or a claim against the person who
committed the tort.
F. Not all torts are crimes and vice versa. Not all acts that cause harm are torts or crimes.
2. Generally, a plaintiff must prove the following elements:
A. What was the TORTIOUS CONDUCT or ACT or WRONG committed by the D?
B. Did the wrong cause HARM?
C. Whether the harm or injury suffered caused DAMAGES?
D. What are the possible DEFENSES the D can raise against liability?
3. Aims, Approaches, and Processes
A. MORAL RESPONSIBILITY/ CORRECTIVE JUSTICE. This theory explains the liability system as
the law's articulation of the moral requirement that wrongdoers make good for the losses that
their wrongdoing caused. The wrongful causation of a loss creates a moral relationship between
the victim and the wrongdoer, which is mirrored by the legal relationship between a Plaintiff and
Defendant, wherein one is held liable for the harm he/she caused and the court attempts to right
the morally faulty conduct. The great majority of tort cases turn on some kind of assumption that
the D is at FAULT. Moral responsibility or corrective justice says, “It’s the only right thing to
do.”
B. SOCIAL UTILITY/ POLICY provides for a system of rules that aims for the best course of action
that will result in good for the entire society. Social utility says, “What’s good for all of us.”
C. With CORRECTIVE JUSTICE, the court seeks to find what is right for the two parties whereas
social policy seeks what is the greater good for all of us.
D. What are the moral policy reasons for limiting compensation to cases of fault?
 Judges commitment to corrective justice.
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

 RISK DISTRIBUTION is tricky and is best left for the legislature; though many advocates
of the STRICT LIABILITY approach argue that there will be more compensation for
injured persons given that companies can spread the cost throughout an entire industry
(like product manufacturers) or pass on the costs to their consumers. In strict liability or
strict product liability, the law might designate that person, entity, or company that is the
best cost bearer or entity to spread the cost of accidents even if the D has not done any
wrong. In the case of a manufacturer, they will spread the cost to their consumers, which
is the cost of doing business.
E. DETERRENCE aims to deter certain kinds of conduct by imposing liability when certain conduct
causes harm. The aim of deterrence is that all persons will avoid conduct that would lead to tort
liability. Deterrence also minimizes the expenses in processing claims.
F. EFFICIENCY involves balancing costs and utility for the greatest net good of the community.
G. PROCESS VALUES concerns the fairness and the transparency of the processes by which
decisions are made by providing consistency, a sense of fair play, and balance between judge’s
discretion and flexibility. RULE BASED DECISION MAKING is fair in that everyone is treated
the same; thereby, allowing for transparency and respect for rule of law.

4. PROCEDURES AT TRIAL http://www.abanet.org/publiced/courts/motiondismiss.html

A. PLEADINGS-
 A lawsuit begins when a COMPLAINT is filed with the court. This complaint will state
that one or more P(s) seeking damages or equitable relief from one or more stated D(s),
wherein the P(s) alleges facts to support a claim.
 ANSWER: The document that disputes the factual claims, specifically, the answer
identifies the D’s defenses to the P’s claims, including any challenges to the court's
jurisdiction, and any counterclaims the D wishes to assert against the P.
 Instead of filing an answer within the time specified in the summons, the D can choose to
dispute the validity of the complaint by filing one or more MOTION(S).
 MOTION TO DISMISS OR DEMURRER (“MTD”): The D believes that the P’s complaint
does not state facts that show a valid legal claim. If the D’s motion is denied (not
sustained), then the case will proceed to the next step. The standard is TAKING ALL
FACTS OF COMPLAINT AS TRUE IN THE LIGHT MOST FAVORABLE TO THE NON
MOVING PARTY. MTD is filed for many reasons such no jurisdiction, immunity, or etc.
The ANSWER and MTD can be filed at the same time. If P’s allegations are insufficient to
state a cause of action, the court may grant a MTD (or demurrer) or dismiss the
complaint with leave to amend the complaint.
B. PRE-TRIAL-
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

 DISCOVERY: This is the procedure involving the investigation of the facts through
various means depositions, interrogatories, production of documents, or evidence
presented to the court OR the ordered exchange of evidence and statements between the
parties based on what they each expect to argue during the actual trial. There are rules of
evidence that become important as to what evidence can be admitted. This is important
because the jury can only consider evidence presented in the case. Typically, the attorney
in preparing for trial will try to ascertain what facts he/she must try to get admitted.
 MOTION FOR SUMMARY JUDGMENT: The D believes that the legal rules do not
permit the P to prevail even if the facts are undisputed or “accepted as true.” The
STANDARD is that THERE IS NO GENUINE ISSUE OF MATERIAL FACT, specifically;
THERE ARE NO MATERIAL ISSUES OF FACT REMAINING FOR TRIAL. "Material
fact" is one which, depending upon what the judge believes "really happened," could
lead to judgment in favor of one party, rather than the other. If facts are in dispute, judge
should deny the motion for summary judgment. Therefore, the court grants summary
judgment as a matter of law based only on the court’s finding that:
a. There are no issues of "material" fact requiring a trial for their resolution, and
b. In applying the law to the undisputed facts, one party is clearly entitled to
judgment.
 MOTIONS OF LIMITEE: The judge tries to pare the case down by eliminating issues that
are not essential in order to focus on key issues and by resolving problems with evidence.
C. TRIAL & JUDGMENT-
 SELECTION OF A JURY: VOIR DIRE.
 OPENING STATEMENTS (P then D; attorneys lay a road map of evidence that expect to
introduce in trial)
 PLAINTIFF’S CASE-IN-CHIEF
 EXAMINATION AND CROSS EXAMINATION
 CLOSING ARGUMENTS: P->D-> then P in rebuttal. These are arguments aimed at
persuading the jury on the basis of the testimony that one side or the other should be
believed.
 MOTION FOR DIRECTED VERDICT (“M-D/V”): Either party can move for M-D/V. if
facts are in dispute WHERE REASONABLE PEOPLE COULD DIFFER ON
INTERPRETATION OF THE FACTS (INFERENCES TO BE DRAWN FROM FACTS) –
this is a question for the jury to decide and no M-D/V will be granted. If the facts,
however, are clear and a reasonable people could not differ on the facts, the judge can
decide on the case as a matter of law and grant the M-D/V.
 DEFENDANT’S CASE-IN-CHIEF
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

 M-D/V (See explanation above)

 CLOSING ARGUMENTS
 DISCUSSION W/ JUDGE REGARDING JURY INSTRUCTIONS (“J.I.”)- Some time
before the judge instructs the jury, attorneys meet with the judge to discuss the J.I. At
this time, attorneys must raise their objections to proposed J.I.
 INSTURCTIONS TO THE JURY: The judge instructs or “charges” the jury to apply their
facts to the legal rules given in the instruction. These instructions are the rules of law
that the jury must apply to the case.
 JURY DELIBERATES, RENDERS VERDICT
 THE LOSING PARTY CAN MOVE FOR MOTION JML/ N.O.V. (Motion for Judgment
or as a Matter of Law; Motion Non Obstante Veredicto): The evidence is not legally
sufficient to justify a jury verdict for either the P/D. With Motion NOV, the court
reverses the ruling because it is in error of the law despite the fact that the jury decided
for either P/D.
 MOTION FOR A NEW TRIAL: May be granted due to an error committed in trial that
influenced the jury, the weight of the evidence, or the damages are unconscionably
low/high. Can be granted if there is an error of law or when the damages are so pitifully
low or grossly exorbitant and are not supported by the evidence.
 APPEAL: After a final decision has been made, either party or both may appeal from the
judgment if they are dissatisfied with the decision (and their jurisdiction grants the
ability). Even the prevailing party may appeal, if, for example, they wanted a larger
award than was granted. The appellate court (which may be structured as an
intermediate appellate court) and a higher court will then affirm the judgment, refuse to
hear it (which effectively affirms), reverse, or vacate and remand the trial court’s ruling,
which involves sending the lawsuit back to the lower trial court to address an unresolved
issue, or possibly for a whole new trial. Some lawsuits go up and down the appeals
ladder repeatedly before finally being resolved.
. INTENTIONAL TORTS
INTENT: Conduct is intentional if the actor acts either with PURPOSE or with KNOWLEDGE that the
consequence is SUBSTANTIALLY CERTAIN to result from it.
 What is the difference between INTENTIONAL TORTS v. NEGLIGENCE? Suppose Joe
becomes intoxicated and rides his car on the wrong side of the highway, thereby causing
a head-on collision that seriously injures P. Is Joe liable for battery? You must consider
whether he desired to cause the consequences of his act or believed or should have
known that the consequences were substantially certain to result from it.
 There is a CONTINUUM OF FAULT in Tort Law—
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

Intent-> reckless or wanton->negligence ->no fault

 SINGLE INTENT V. DUAL INTENT—DUAL INTENT requires (1) intent to act and (2)
intent to do the harm/ offense to be satisfied separately; whereas SINGLE INTENT
requires (1) intent to do the act, which results in contact that a reasonable person would
find offensive/harmful.
 CHILD LIABILITY: Young children may be found capable of intentional torts even
though too young to be capable of negligence. Most states have statutes that allow Ps to
recover from the parents of the D/child. The P, however, must prove a different
standard of fault (willful or malicious as opposed to intentional). .
a. Under 7
b. Under 18
 TRANSFERRED INTENT: An actor’s (1) intent is transferred between the five torts
BAFTT (Battery, Assault, False imprisonment, Trespass to Chattel, and Trespass to Land)
and (2) from the intended victim to the unintended victim.
B. CASES-
 Garratt v. Dailey (1955) — Intent is knowledge with substantial certainty that the act would
result in a harmful or offensive contact.
 White v. Muniz (2000) — [A person may be found to have] acted intentionally if [the person]
intended to do what [he or] she did, even though [his or] her reasons and motives were entirely
irrational. However, [the person] must have appreciated the offensiveness of [his or] her conduct.
a. NOTES! The above case is important to consider whether an intentional tort
requires proof that the D not only intended contact with the person of another,
but also intended the contact to be harmful or offensive to the person. Dual
Intent: Intent requires proof that the tortfeasor not only intended to contact
another person, but also intended that the contact to be harmful or offensive to
the other person.
 Stoshak v. E. Baton Rouge School (2007) — [I]f a person intended to inflict serious bodily
injury while trying to hit another person, but missed and accidentally hit someone else instead;
such intent is transferred to the actual victim.
C. NOTES! Intent does not mean “bad motive.” Intent is the desire to cause certain immediate
consequences, whereas motives are the actor’s reasons for having that desire. Motives are
usually irrelevant on the issue of liability.
1. BATTERY:
A. ELEMENTS- In order for P to show that D is liable to P, the following elements must be satisfied:
 INTENT
 UNPERMITTED TOUCHING
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

 VOLUTIONAL ACT (voluntary)

 RESULTING IN HARMFUL OR OFFENSE CONTACT
 DAMAGES
a. NOTES! Intent is found where the D acted purposefully or with substantial
certainty knowing that harm would result.
b. Unpermitted touching relates to the contact being unconsented to or
unprivileged. Does not have to be flesh to flesh.
c. A Volutional Act is a voluntary muscular movement, not reflexive movement or
an unintended movement resulting from a heart attack, seizure, being jostled in a
crowd.
d. Resulting in harm or offense is Xx.
e. Damages in Tort law need not be proven. Specifically, a P does not have to
prove actual damages. P can recover lost wages, medical expenses, pain and
suffering (p&s), and punitive damages in extraordinary cases. Substantial
emotional damages are parasitic to regular nominal damages.
B. EXTENDED LIABILITY PRINCIPLE: the tortfeasor is responsible for all the intended and
unintended results.
C. TRANSFERRED INTENT applies.
D. CASES
 Van Camp v. McAfoos (1968) — Without negligence or willful action, there is no cause for
action that would allow recovery for a tort claim. Without fault, there is no liability.
 Snyder v. Turk (1993) —Contact that is offensive to a reasonable sense of dignity is offensive
contact.
 Cohen v. Smith (1995)— Every human being of adult years and sound mind has a right to
determine what shall be done with his own body [even if it the touching involves medical
treatment]. Contact that violates one’s religious belief is offensive, although not harmful.
 Mullins v. Parkview Hospital, Inc. (2007)—P must show D acted intending to cause a harmful
or offensive contact with the P.
E. *OTHER SOURCES*— Restatement (Second) of Torts § 13: (1) An 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 another or a third person, or an imminent apprehension of such contact, and (b) an offensive
[or harmful] contact results directly or indirectly results with the person of the other.
2. ASSAULT:
A. ELEMENTS- In order for P to show that D is liable to P, the following must be met:
 INTENT
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

 TO PUT P IN AN APPREHENSION OF IMMINENT HARM (OF A BATTERY)

 P MUST BE AWARE OF IMMINENT BATTERY
 D MUST HAVE THE PRESENT ABILITY TO CARRY OUT THE IMMINENT BATTERY

B. Same rules for transferred intent and damages apply.

C. CASES-
 Cullison v. Medley (1991) — Conditional language which does not express any present intent
to harm the P does not constitute assault. Because [an assault constitutes] a touching of the
mind, as opposed to the body, the damages which are recoverable for an assault are damages for
mental trauma and distress.
 Dickens v. Puryear—

D. NOTES! (2) IMMINENT APPREHENSION does not have to be instantaneous but immediate
rather than in future. APPREHENSION is something more than fear. The apprehension must be
one which would normally be aroused in the mind of a reasonable person. P must be aware of
imminent harm and D must have present ability to carry out the imminent harm.
E. NOTES! WORDS alone do not constitute assault. Such as, WORDS NEGATING ASSAULT- “I
would punch you if the police officer were not watching”; WORDS OFFERING a CHOICE OF
ALTERNATIVE- “I’ll beat you up if you don’t do what I say.” This is not an assault; these are
expressed CONDITIONAL threats, where one may argue against there being imminent threat. It
is an assault to shake a fist under another’s nose, to aim or strike at him with a weapon, or to hold
it in a threatening position, to rise or advance to strike another, to surround him with a display of
force.
3. FALSE IMPRISONMENT:
A. ELEMENTS- In order for P to show that D is liable to P, the following must be met:
 INTENTIONAL CONFINEMENT
 WITHOUT PRIVILEGE OR CONSENT
 IN A BOUNDED AREA WITHOUT ANY REASONABLE MEANS OF ESCAPE
 FOR AN APPRECIABLE AMOUNT OF TIME where the
 P SUFFERED ACTUAL HARM/DAMAGES OR P WAS AWARE OF THE
CONFINEMENT.
B. Same rules for transferred intent and damages (as battery and assault)!
C. CASES
 McCann v. Wal-Mart Stores, Inc. — The court said no there was no actual physical
restraint.
D. NOTES! (3) Sometimes courts talk about confinement in a limited area; this goes to defining
confinement w/out reasonable means of escape (like avoiding bodily damage).
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

E. NOTES! Threats, demands, assertion of authority, duress of goods, grabbing P’s pants from the
dressing room, contractual requirement (P signs admission document after 3 days of
observation), and/or chemical confinement are sufficient for false imprisonment even though
restraint was not in a confined area.
F. Exclusion is not discriminatory; but may violate civil rights or public accommodation laws.
4. TRESSPASS TO LAND:
A. ELEMENTS- In order for P to show that D is liable to P, the following must be met:
 INTENTIONAL ENTRY (personal entry) or CAUSING ENTRY OF AN OBJECT
 WITHOUT OUT PRIVILEGE or CONSENT

B. Same rules for transferred intent and damages.

 If physical harm occurs, the D pays the cost of repair or the diminution in value of
property. Punitive damages if trespassing is deliberate.
 The Extended Liability Principle also applies. For example, if D trespassed on P’s land
and threw a lit cigarette in what D thought was a puddle of water that turned out to be
gasoline, D will be liable for damages from the fire.
C. NOTES! Property rights extend beneath the ground and above the ground. With trespass to
land, it does not matter if trespasser believed he or she had a right to be on the property. Intent
does not need to be intent to trespass; only intent to enter the land or refusing to leave the land.
D. CASES
 xxx

E. Substantial certainty intent (over 1800 golf balls landed on P’s prop over 5 yr period from
adjacent golf course)
F. NOTES! The tort of trespass seeks to protect possessory rights because it involves an invasion of
P’s interest in exclusive possession of his/her land.
4(B). NUISANCE is a tort which is an unreasonable and/or substantial interference with a
person’s use and enjoyment of her real property by actions on nearby real property
A. Examples: Noise, Dust, Odors, Insects, Rodents.
B. CASES: Injunctive relief available in golf ball case, court could enjoin or stop the golf course from
operating.
5. TRESPASS TO CHATTELS
A. ELEMENTS- In order for P to show that D is liable to P, the following must be met:
 INTENT (does not matter if D had a mistaken belief)
 INTERMEDDLING, SHORT OF CONVERSION, WITH ONE’S PERSONAL PROPERTY
POSSESSORY RIGHTS
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

 RESULTING IN HARM TO THE CONDITION, QUALITY OR VALUE OF THE

CHATTEL, OR IF OWNER DEPRIVED OF CHATTEL FOR SUBSTANTIAL TIME.
B. Actual damages of dispossession required.

C. CASES
 School of Visual Arts v. Kuprewicz— The court found the sending of sent large enough
emails that reduced the P’s computer functionality to constitute trespass to chattels.
a. To establish a trespass to chattels, P must prove the D intentional interefere[d] with the
use and enjoyment of personal property in [P’s] possession, and that [P] was harmed
thereby. Thus, one who intentionally interferes with another’s chattel is liable only if
there results in harm to the “the owner’s materially valuable interest in the physical
condition, quality or value of the chattel, or if the owner is deprived of the use of the
chattel for a substantial time”.
6. CONVERSION OR TROVER:
D. ELEMENTS- In order for P to show that D is liable to P, the following must be met:
 INTENT (Must be intent to exercise dominion over the chattel)
 TAKING SUBSTANTIAL DOMINION and CONTROL OVER CHATTEL

E. Like trespass to chattel, a converter can have a mistaken belief that chattel is his, but there is
generally no defense for mistake.
F. Damages for conversion are the replacement cost or the full value at the time of conversion or
value in risking market or replevin.
G. NOTES! What property can be converted? It used to be only tangible property (not land or
intangible prop like paper money, etc). New applications of conversion in cases involving
harvesting of body parts.
. DEFENSES TO LIABILITY FOR INTENTIONAL TORTS- PRIVILEGES
“Privilege” is the general term applied to various defenses in which special circumstances justify conduct which
would otherwise be tortious. In other words, even though P proves facts which establish prima facie the elements
of a tort, D can prove other facts which establish some privilege, which renders D’s, conduct non-tortious.
1. CONSENT:
A. Consent is WILLINGNESS or ASSENT, which may be expressed by WORDS or GESTURES, or implied
by the manifestation of certain CONDUCT/ACTIONS.
a. SAMPLE PROBLEM:
i. Has Berwyn consented to the kiss?
1. Does it seem that way to Berwyn.
a. If Berwyn said “no” – no consent, Austin liable for
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

battery.
2. Does it seem that way to Austin. The courts will only consider
what a reasonable person in similar situation as the P.
 MANIFESTED CONSENT (by conduct)
a. If Berwyn consent to the act (kiss) – but no consent given to harm done (broken
vertebra), Austin liable for battery? No, because she consented to the touching,
the broken vertebra was an accident. Austin was intending to kiss her. No
liability as long as the harm was not intended.
b. If Berwyn does not move because paralyzed by fear or horror, is there consent?
i. Actual consent? No, she did not say anything.
ii. Apparent / manifested consent (what a reasonable person would think
based on the facts).
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

B. Capacity to Consent
 he consent must be given by one having the capacity to do so, or one authorized to
consent for him. Infancy, intoxication, or mental incapacity normally will invalidate
effective consent.
a. Power relationships between the parties affect the issue of consent. Specifically,
whenever there is such a relationship consent can be invalidated. Some states
statutes forbid all sexual contact between mental health professionals and their
patients by enacting strict liability statutes wherein the health professional
cannot state that the patient consented.
i. Robins v. Harris— The position of authority a jailer holds over a prisoner
dictates that there be no exception for consent in our criminal law to the rule
against sexual contact between jailer and prisoner.
ii. It is important to know that under the Florida Rules of Professional
Responsibility and model rules, it is unethical to have a sexual
relationship with a client when it interferes with professional judgment
of lawyer. More likely than not, if sex did not proceed the professional
relationship, the lawyer can be grieved for violating professional rules.
iii. Another power relationship involves pastors and their parishioners.
iv. If P gave consent for operation while heavily sedated and doctor knows
patient is sedated, can the D-Dr. claim the P manifested consent? No,
because the P could not give consent. There are several levels of consent.
Such as in an emergency or when a person is already sedated and
something appears and the Dr must decide what to do (this is called the
EMERGENCY RULE, consent cannot be obtained and waiting increases
the risk. When an emergency actually or apparently threatens death or
serious bodily harm and there is no time or opportunity to obtain
consent, consent will be implied).
C. NOTES! Consent can be inferred by silence in some relationships and not in others, provided
such conduct would ordinarily be interpreted, as where a reasonable person would be expected
to speak or move if he objected.
D. NOTES! Like the rule about appearances in self-defense, one is permitted to act on the
reasonable appearance of consent in these cases.
E. Exceeding the Scope of Consent
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

The consent is to the D’s consent, and once given, the P cannot complain of the consequence of
that conduct, however, unforeseen. But the D’s privilege is limited to the conduct consented to or
acts substantially similar. The consent may be condition or limited as to the time, place, duration,
are and extent.
 Ashcraft v. King— The court found no consent since the procedure exceeded the scope of
the consent granted by the patient.
 In case where the patient consented to specific painkillers and the nurse injected patient
with drugs to which the patient did not consent. The courts found no consent.
 In case where parents consented to time-out room for their child, but were unaware of
condition of room. The court held there was no consent given the parent’s consent was
not fully informed because they did not know about the condition of the room.
 Kennedy v. Parrott—
a. Following a motion of directed verdict, the court articulated this rational
concerning consent during emergencies. The court said this was not battery.
“Fetish of consent,” it was senseless and improbable for the doctor to ask the
patient for consent every step of the way when the dr is working within the
scope of the procedure. Ultimately, this would require the doctor to sew up the
patient and wait for them to recover in order to obtain consent for another
procedure.
F. Informed Consent V. Battery
 A Dr is said to have committed a battery when the treatment exceeds the limits of
patient’s consent, i.e. how the procedure is done or the type of procedure.
 With regard to informed consent, which relates to negligence cases, the Dr. performs the
procedure to which the patient consented to but the patient was not adequately informed
of all the material risks. These are usually called lacked of informed consent cases,
because the Dr. failed to inform the patient of all the material risks.
G. Substituted Consent
 Unable to get consent from victim or the individuals lacking capacity (i.e., minors,
incompetents who are unable to give consent) and others give the consent on their behalf
and in good faith.
a. Recall the Terri Schiavo case. Here the court considered what was in the best
interest of Terri and her wishes.
H. NOTES! Under the majority view, one cannot consent to illegal activity.
I. NOTES! Consent can be revoked or limited.
 Doe v. Johnson— One who knows he has a venereal disease and knows that his sexual partner
does not know of his infection, commits a battery by having sexual intercourse.
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

a. Why is consent to sexual contact not valid if one person knew he/she had HIV?
In this case, the court appeared to be saying that perhaps if she did know there
would be no consent to sex.
J. NOTES! Consent procured by fraud or duress is not valid.
K. CUSTOM CAN BE RAISED BY THE P TO REFUTE CONSENT DEFENSE
 There are situations where customs prohibit touching by man or woman, wherein a P’s
silence (like in the Berwyn case) does not amount to consent because tradition would say
that a man could not touch a married woman. We must acknowledge custom, even if we
don’t understand. The law has to respect individuals’ customs especially if D knew of or
shared the P’s custom.
2. SELF DEFENSE:
A. SELF DEFENSE may be used if
1) there is a REASONABLY APPARENT NEED FOR SELF-DEFENSE and
2) THE FORCE for battery, THREAT OF FORCE for assault, or THE RESTRAINT for false
imprisonment USED IS REASONABLE IN DEGREE AND RESPONSIVE TO THE
APPARENT THREAT.
B. NOTES! The use of EXCESSIVE FORCE will negate the privilege to use SELF DEFENSE, because
excessive force is not reasonable in light of the reasonably apparent threat. Therefore, the amount
of force, assault or restraint used in self defense must be commensurate with the reasonably
perceived attack.
C. NOTES! PROVOCATION is not a defense. It usually is a communicative act such as an insult. If
someone makes an obscene gesture, the person has no reason or is not justified to use force on the
person. However, PROVOCATION could be considered in reducing or denying punitive
damage award.
D. NOTES! With self-defense, the victim does not have duty to ask if assault or whether a battery
will result.
3. NECESSITY
4. Public necessity- privilege to take property or enter property for the greater good.
A. Surocco v. Geary
 The authority granted to the court is through common law, the rights of necessity
adopted through the principles of natural law, god given rights, this principle has been
recognized. Why should innocent parties pay for the greater good? Social policy says
that the greater good of society outweighs the individual rights and the economic impact,
the potential damage to the surrounding houses is greater than the goods lost.
Government can destroy private property for the greater good. If public necessity, no
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

compensation.
B. Wegner v. Milwaukee Mutual. If public necessity by virtue of taking, then compensation.
C. The difference between the two is Minnesota stated had a constitutional provision preventing the
taking of the property. In the wegner case, the finding by the lower court was that the taking of
property was defensive under the doctrine of necessity and said their actions constituted a
taking. The minn. s/c stated once it was found that those actions constituted a taking, along with
the statutes whenever there is a taking there must be compensation. The difference is that there
is no mention of the statute. In the Surocco case, the opinion stated that if the legislature wanted
to enact a law for compensation, since there was none the Surocco case was looking at the general
provision under common law. The Practice Act of 1850 is the cause of action that gives rise to the
claim. This is an 1853 case there is a different kind of pleading. Here, the court said the
legislature could have provided compensation.
5. Private Necessity-
A. Ploof v. Putnam
 Trespass? The argument stated he docked their due to a storm, private necessity, the
landowner did not have a right to say you can’t be on the dock and when the landowner
untied it, they were able to claim trespass because he is untying.. because life and limb is
more important than property.
B. Vincent v. Lake Erie Transportation.
 Why is this not governed by Ploof, because in the end, his ship caused damages, he
choose to keep the safety of the boat than the safety of the people. This is exactly the
same case, they stayed and they caused damages. They have a right to pay. Dissent says
as a part of doing business, someone will dock there; no person would expect them to
leave when it was not safe to do so. If you consider other things. Like liability.
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

6. ATTRACTIVE NUISANCE
7. ARREST/ DETAINMENT
A. Police Officers
 Police officers are privileged to enter land to execute a warrant.
 Police officers are also privileged to make an arrest under a warrant that appeared to be
authorized and when there was probable cause to believe that a felony was committed.
B. Citizen’s Arrest: Private person often had privilege to make an arrest for felonies that were in fact
committed (but not for misdemeanors).
 All in all, the level of responsibility that a person performing a citizen's arrest may bear
depends on the jurisdiction.
 Mistake can subject the private person to possible lawsuits or criminal charges.

8. OTHER COMMON LAW PRIVILEGES

A. In Florida, news media are also afforded the privilege to enter land to cover news. (Recall in the
Caylee Anthony Coverage how reporters would go to front door and knocking for someone to
answer the door.)
B. Public accommodation laws
9. DEFENSES OF PROPERTY
A. FORCE
 CASES
a. Katko v. Briney () — “Life and limb more precious than property”
i. NOTES! Usually signs would not rebut the use of excessive force. There
are practical reasons why the law would not want us to set up traps like
because of child trespassers or people who were blind or illiterate.
b. Brown v. Martinez () — The issue in this case involves whether the use of
firearms to prevent trespass is reasonable. The court suggests that there is
nothing wrong if the threat of force is excessive to have the trespasser leave the
land, but it must be reasonable.
 NOTES! CRIME PREVENTION DEFENSE STATUTES- Remember some statutes protect
a user of force, even deadly force, to prevent specific crimes from occurring in their home
or to their person. Persons using such force would be protected from criminal or civil
liability.
B. SHOPKEEPER’S PRIVILEGE:
 The store can raise “shopkeeper’s privilege” as a defense. This privilege allows the
shopkeeper to detain a customer if the merchant reasonably believes the customer stole
merchandise.
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

 CASES
a. Peters v. Menard ()—
 NOTES! In situations where there is a mistake, the common law privilege to detain is at
the shopkeeper’s peril, meaning the shopkeeper will lose its privilege and can be liable
for false imprisonment.
10. RECAPTURE OF CHATTEL
A. STORE can chase thief in hot pursuit to recapture stolen goods; but once possession has been lost,
cannot forcibly recapture stolen goods from thief later. The owner can not a week later cannot
use force to get property back. Depends on the facts whether it is reasonable.
11. REPOSSESSION
A. CASES
B. REPOSSESSION OF CONSUMER GOODS AND LAND
C. Even if buyer in default, repossession must be w/o breach of peace.
D. Buyer may defend prop w/ reasonable force
E. Landowner must resort to the court to repossess land (usual rule by statutes).
. CIVIL RIGHTS VIOLATIONS

1. 42 U.S.C. § 1983 (these are called “1983 actions”)

A. Federal statute passed after Civil War. This allowed a P whose civil rights were violated to go to
federal court. At the time of its enactment, some state courts may have been less sympathetic to
civil rights violations.
B. In § 1983 actions Ps are allowed to recover attorney fees. Under the American rule, everyone
pays for his/her attorney’s fees unless statutory provision states otherwise.
C. These are constitutional law violations; however, many of the same facts that give rise to
constitutional violations could be common law intentional torts.
2. Examples:
A. A state cannot be sued under § 1983 actions because of the 11th amendment.
B. The 14th amendment violation of due process or equal protection- requires acts that “shock the
conscience”- ex: police officer forces a detainee to have sex with him- this violated the detainee’s
due process rights.
C. If police subject citizens to an unlawful warrantless search, this results in a Fourth Amendment
violation of the person’s rights.
D. If a prison guard sadistically beat an inmate, this is called an Eighth Amendment violation (cruel
and unusual punishment).
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

E. Student suspended from school for wearing a black armband to protest the Vietnam War; this is a
violation of the 1st Amendment (§ 1983 action but no common law tort).
. 1/10/2009- TORTS II

1. Exam Review
A. Essay exam: In analyzing cases, start with 1st Tortfeasor. Structure answers as such.
 X v. Y- Cause of action. “X will argue…. “
 Y’s response. Use key words “hard to argue, instead,” best argument, try to argue... etc. If
the jurisdiction applies… argue that.
 Sue X and Y under joint and several liability- indivisible injury-
 “See above.”
 “Proximate cause within the scope of foreseeable risk.”
 ”X could argue not negligence in …, but this is a weak argument, “
 CAUTION! Don’t discuss claims that are iffy... not clear on facts don’t argue.
 CAUTION! When thinking about essay exam, start thinking, if there was (a cause of
action)… x would argue, BECAUSE.

 CAUTION! Watch for incorrect statements of the law.

B. Clarifications on Black Letter Law:

 If someone causes personal injury, it’s foreseeable that victim will need medical injury
and medical malpractice is within foreseeable risk.
 Negligence per se, is easier, takes care of duty and breach. Will argue violation of statute
should replace reasonable care because 3 elements.
 Many jurisdictions do not allow RIL in medical malpractice cases, but this is one of those
cases in exceptions because within the collective experience and common sense of people,
so no expert testimony needed. RIL goes to breach.
 Loss of chance or opportunity involves someone with a pre-existing medical problem or
diseases and already more than 50% chance the person will not survive, and that pre-
existing was not caused by someone else’s negligence and the doctor was negligence and
this negligence prevented full recovery.
 “Captain of the ship” theory see Ybarra
 For Breach, argue Learned Hand Formula, a warning is relatively inexpensive as
compared to probability of harm and gravity of the loss (Carol Towing, B is less than
PXL, risk/ utility test) or should have made off limits.
 Missed Landowners Liability (Trespassers, Licensee, Invitee)
 There is no duty to report child abuse in common law, so no negligence per se.
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

2. NONFEASANCE
A. The No duty to Act Rule
B. Exceptions, Qualifications and Questions
3. CONTRACTS AND DUTY
 Professor Koonz is to conduct Wed’s class; read course reserves.

A. Contracts can affect tort duties, specifically, by creating, modifying or limiting tort duties
 If a contract creates tort duties, then liability and damages will be determined under tort
law not contract law
 A major difference between tort law and contract law is the permissible damages under
each. Specifically, contract law is limited to what is in the contract whereas with tort law
the damages can be significantly higher. Plaintiffs usually prefer to file a torts claim.
B. Important Considerations
 Authorities say K can’t dictate tort duties unless D has actually begun performance
under the K
 Was the K (or the under taking) an economic matter, or did it attempt to provide for
physical safety
 Did the P reasonably and foreseeably rely upon the K or undertaking w/ concomitant
loss when D breached
 Economic damages are not usually considered under tort law
 Some authorities believe that the reliance aspect is overdone and ought to be re-worked
to require only foreseeable harm
 Both the safety promise must be clearly distinguished from economic promise

C. When analyzing such cases its important to consider:

 Is D who undertakes duty to one person bound to perform duty for benefit of another
person?
 What is the duty D has undertaken? Is it reasonable care or something more?
 What is the scope of the duty undertaken- against what kinds of risks of harms is the D
obliged to protect?
D. Unenforceable promises:
 Thorne & Deas:
 What is the issue? Whether Deas owed the P for his half of the vessel and whether there
was a K
 Is Deas responsible for nonfeasance? No K, because no consideration. This is a promise
w/o consideration.
 What is the difference b/t cases where D begins performance and damages results?
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

 Even if no consideration, P may have claim for misfeasance (active negligence). But,
where no performance, P cannot sue for damages on promise made w/o consideration,
because this is misfeasance.
 What about reliance? Why would reliance make a difference it would a promise by D
plus P’s reasonable reliance upon it might operate as a substitute for consideration?
Should this matter in torts case? Greater harm. Loss of financial investment. Perhaps
relying on the fact that P said he would get insurance, and didn’t do it. Is it economic or
protection of physical harm? In this cases, it would be an economic matter because he
was seeking to recover costs of ship.
E. What constitutes sufficient undertaking
 Belhumeur (note 3) p was attacked by bees after neighbor promised to remove bee
infested tree.
 Should P be able to recover damages from D based on promise to remove tree?
 Was there an affirmative undertaking to create a duty to remove the tree?
 D got estimates on cost of removal. Is this enough?
 This is not purely economic damages it’s for physical safety and there was affirmative
undertaking by getting estimates on the cost of removal. This was not enough because
the risk of injury remained the same. Whether the P is in a worse position, increased risk
of harm, and reliance.
 Could said that obtaining estimates was not sufficient affirmative undertaking
 This undertaking did nothing to increase risk.

F. Enforceable Promises
 Spengler V.
 Is this a tort claim? Y, duty created by misfeasance. Michigan law does not allow.
 Is this a K claim? Y, claim limited to only K.
 What about D’s undertaking + P’s reliance?
 Michigan law says: breach of duty separate and distinct from breach of K (s this separate
& distinct) and active negligence/ misfeasance.
 No independent duty existing outside of K
 K promised to dispatched ems the duty to do so correctly emanated from k
 Court does not determine whether the actions = misfeasance.
 Why does the court not decide on unconscionability because they did not make the claim
in the lower court?
 Court does not seek to enforce this because would create additional duty to others,
against K principle of meeting of minds,
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

G. Restatement 3d §42
 Actor owes a duty of reasonable care when undertakes to render services to another
when actor knows or should know that service will reduce risk of physical harm if (a)
failure to exercise care increases risk of harm (beyond that which would have existed
w/out undertaking) and other person relies on undertaking.
 Remember this!
 Would this change result in Spengeler. Yes.

H. Difference b/t tort and Contract law duties

 Southwestern Bell
 What would be the damages? Economic
 Should this give rise to tort duty? No its is not a K about personal safety or reduce
physical harm. K related to economic activity (advertisement) and breach causes
economic damages (not physical) like loss business.
I. Grimes v. Kenne
 Lower court said special relationship; crated a special duty. The argument would be the
K was null and void as it left out a material element thus giving the parents a claim for
misrepresentation or lack of informed consent.
J. Contract that crate duties beyond terms
 Leavitt. D promised to repair ceiling plaster in P’s house, D did not repair, and plaster
fell on P. P sued for personal injury. Court affirmed MTD (nonsuit) ; damages too remote
and not w/n intention of parties of K… this line of thinking in 1942, that landlord don’t
owe a duty that is implied from the K , is outdated many jurisdictions recognize this as
duty and its independent and distinct from K terms provide for safety of the lessees.
K. Mobile Oil. Sed Mobil claiming injury due to fall on slippery floor. Lessor was notified of needed
repair and did not repair. Lower courts affirmed m/d
 Reverse- like the Leavitt, this case involved a physical risk and physical harm resulting
from the breach. The court willing to recognize tort duties and liabilities flowed repair
obligations most states have a statutory requirement, that there can be tort liability in
failing to do.
L. Restatements & lessor liabilities.
 r. 2d: lessor liable for ham due to disrepair if
 1. Lessor contracted to make repairs
 Disrepair creates unreasonable risk
 And lessor fails to provide reasonable care in perform k
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

 R3d person in special relationship w/ another owed duty of reasonable care in regard to
risk arising w/n cope of relationship. Rest 3d is broader.
M. Expired K
 Folsom: expiration of K w/ security co created no duty; even though security co failed to
remove alarm – not voluntary assumption of a duty.
N. Promises to 3d person
 Winterbottom: K b/t party general D
a. Court says no privity between the P and defendant, court does not allow the suit-
no privity of K.
b. This is a famous case for the “accepted work doctrine” derived from this case-
once a building K or completed a job and the landowner accepted it, the
contractor had no liability to someone injured by his negative work--- this rule is
obsolete and overruled by contemporary cases.
c. Remember the old case, the d tried to argue an excavation case was nonfeasance,
 H.R. Moch,
a. Trial court dismissed claim, appellate division; high court reverses- claim
dismissed
b. 3 ways:
i. Breach of K- P a non party not w/n contemplation of parties to be
enforceable by non-party
ii. Breach of common law tort- Cardozo says no tort duty b/c d did
nothing- Cardozo says can be categorized as a nonfeasance cases.
iii. Is this really a nonfeasance cases?
1. D promises action to enhance physical safety
2. P relies, these are some factors for arguing
iv. Was D’s misconduct really nonfeasance
 TORTS OUTLINE
Key: XX= Don’t understand/Revise, XX= Move, XX= Add more, D= Defendant, P= Plaintiff

4. 5. Interesting we don’t know why the water pressure was low b/c D did something actively
negligent- could have opened. It’s hard to say the D negligence, if we hold the D liable for the fire its
subjecting the D to strict liability. The claim was only that the water co failed to live up to the K promise to
provide water pressure, for a K claim nonperformance would be enough to establish liability- since K
liability is really strict liability. What would be the liability then if the party was a party to the K and it was
a K to provide water pressure, what might be the damages under Contract law? The damages under
contract law would be $42.50. The difference between creating a tort duty out of a K esp. we don’t know
why the water was low… liability w/o proof of some sort of fault would seem extreme. Cardozo worried
about indefinite expansion of liability. He is for limiting liability to those w/n scope of danger. What is
the scope of risk undertaken- to provide water; no guarantee against fire. Presumably if D undertaking a
risk to guarantee against fire, would have charged more. A promise to a is not a promise to b; remember
in Palsgraf- Cardozo talks about a duty to a limited class of persons w/n the zone of danger.
5. 6. Strauss-

6. Electrical co grossly neg. there was a blackout over large urban area for long period of time. P contracted
with utility for electrical services in his apartment- but, not in the basement- where he was injured when
he went down to gets water. Remember negligence is personal injury or property damages. Since P not
utility customer for basement area – could not recover although other customers did.
1/27/2010- Koonz