Glossary of 2006 Fall Torts Rules Klass UofM

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Battery (basic definition)
D is liable to the P for battery if: - D intends to cause harmful or offensive contact to the P; AND; - a harmful or offensive contact with the P directly or indirectly results. Rstmt lang is ambiguous re: whether D must intend harm/offense in addition to intending the contact.
Battery - Single-Intent
In some courts ("single intent"), D is liable to the P for battery if: - D intentionally causes bodily contact; AND - the contact D caused is ultimately determined to be harmful or offensive.
Battery - dual intent
In some courts ("dual intent"), D is liable to the P for battery if: - D intentionally causes bodily contact; AND - D intends for the contact to be harmful or offensive.
Intent to Cause Contact
Intent to cause contact is present if: - D intends to cause the contact with or w/o intending harm (Vosburg); OR - D doesn't intend to cause contact or harm but knows contact is substantially certain (Garratt); OR -D intends to cause harm though contact is not substantially certain (A throws knife at B or shoots at B from distance).
Contact exists when: - D's actions result in direct physical contact w/P (Vosburg) - D's actions cause P to come into contact with the ground or other harm-causing object (Garratt) - D's actions result in physical contact with something closely related to P (clothing, something he is holding, etc.) (Fisher) - D contacts an object which, sometime later, comes into contact with P (Stratton)
"Wrongful" Contacts
Harmful contacts - Detrimental physical changes to a person, object or thing (harm) - Any change in bodily condition (bodily harm) Offensive contacts - Contact that offend a reasonable sense of personal dignity
Consensual Privileges in Battery
Consensual privileges (D must prove to avoid liability): - Evidence that P has consented to or allowed the contact - Sometimes consent is communicated - Sometimes consent is determined by facts and circumstance
Nonconsensual Privileges in Battery
Nonconsensual privileges - Self defense - Defense of others - Defense of property - Necessity - others
A D is liable for assault if: - D acts intending to cause harmful or offensive contact or an imminent apprehension of such contact; AND - P is put in such imminent apprehension. If D does not intend to cause the contact or apprehension --> no assault for imminent apprehension even if act involves unreasonable risk of causing it and thus would be negligent or reckless (negligent or reckless v. substantial certainty).
False Imprisonment
D is liable for false imprisonment if: - D acts intending to confine P within boundaries fixed by D; - His act directly or indirectly causes the confinement; AND - P is conscious of the confinement or is harmed by it. D is not liable if it is not done with intention to confine and confinement is transitory or harmless, even though act involves unreasonable risk of imposing confinement.
Intentional Infliction of Mental Upset
D is liable for emotional distress and/or bodily harm if: - D engages in extreme or outrageous conduct intentionally or recklessly; - the conduct causes emotional distress and/or bodily harm. Where such conduct is directed at a 3d person: D is also liable to members of that person's immediate family present at the time for emotional distress even if no bodily harm. D is liable to any other person present if such distress results in bodily harm.
"Secondary" assumption of the risk (SAR)
SAR is based on P's awareness of risk already posed by D's negligence but P proceeds anyway.
"Primary" assumption of the risk – no breach of duty of care (PAR)
PAR is about failure to prove breach of a duty of care b/c of the type of activity engaged in or the P's status.
But-For Cause / Cause-in-Fact
- P must always show that the D's conduct “caused” the harm. - But for the D's conduct, would P have suffered the same harm? - Was D's conduct a substantial factor in bringing about the harm? - Special issues of but-for cause when there are multiple Ds (Summers; Ybarra).
Proximate (“Legal”) Cause
Proximate cause requires that there be a sufficient relationship between the D's negligence and the harm to the P. Proximate cause asks whether the harm to P was a reasonably foreseeable result of D's negligent conduct.
Elements of Negligence
- D owed a duty of care to P to conform to a certain standard of conduct. - D breached the duty of care owed to P (negligent conduct). - D's negligent conduct was the cause-in-fact of P's harm and also the proximate cause of P's harm. - P sustained actual loss or damages from D's conduct. NOTE – the duty of care in most cases is to act reasonably under the circumstances.
Landowner Duty of Care to Invitees (business guests and public invitees)
Landowner liable if:
- D knew or should have discovered condition on land and should realize the unreasonable risk of harm;
- Should expect invitee would not discover danger or protect against it; and
- Fails to exercise reasonable care to protect invitee.
Landowner Duty of Care to Licensees (social guests)
Lesser duty of care than for invitees. D is liable for harm to licensee if: - D knows or has reason to know of condition and that it involves unreasonable risk of harm to licensee and - licensee won't know of danger; - D fails to exercise reasonable care to make the condition safe OR - warn of the risk involved; - Licensee does not know or have reason to know of condition.
Landowner Duty of Care to Trespassers
Generally only a duty to avoid wanton and willful conduct causing harm; BUT D is liable for harm to trespassers if: - D has maintained artificial condition on land he knows is likely to cause serious bodily harm, - D knows trespassers constantly intrude and they will not discover the condition; AND - D fails to warn trespassers of the condition.
Duty to Trespassing Children
D is liable for harm to trespassing children caused by artificial condition D created on land if: - D knows or h/r to know children are likely to trespass; - D knows or h/r to know the condition involves unreasonable risk of death or serious bodily injury to such children; - Children do not discover condition or realize the risk; - Utility of the condition does not outweigh risk to children; and - D fails to exercise reasonable care to eliminate danger or protect the children.
Summary of Landowner Duties
Invitees: general duty of care to protect against dangerous conditions on land of which D is aware or s/b aware. Licensees: duty to warn of dangerous conditions on land of which D is aware or s/b aware. Trespassers: duty to avoid wanton or willful conduct and to warn of known dangerous artificial conditions if trespassers are known or s/b known. Child trespassers: duty of care to protect against known dangerous artificial conditions if children are known or s/b known to trespass.
Last Clear Chance Doctrine (Helpless P) (Rest. Sec. 479)
A P who has negligently subjected himself to risk of harm from D's subsequent negligence can still recover if, immediately preceding the harm: - P cannot reasonably avoid the harm; AND - D is negligent in failing to act reasonably to use his existing opportunity to avoid harm when he knows of the P's situation or would have discovered the peril if he were to exercise vigilance.
Last Clear Chance Doctrine (inattentive P) (Rest. Sec. 480)
A P who by exercise of reasonable vigilance could discover danger created by D's negligence in time to avoid the harm can still recover if: - D knows of the P's situation; AND - D realizes or should realize P is inattentive and unlikely to discover peril in time to avoid harm; AND - D is thereafter negligent in failing to act reasonably to use opportunity to avoid harm.
Restatement (Third) of Torts Sec. 14 (P.F.D. 2005) - Negligence Per Se
An actor is negligent if, without excuse, the actor - violates a statute that is designed to protect against the type of accident the actor’s conduct causes, AND - if the accident victim is within the class of persons the statute is designed to protect.
Excused Violations (Restatement Second of Torts Sec. 288A) - of Negl Per Se
An actor’s violation of a statute is excused and not negligence if: - The violation is reasonable b/c of the actor’s incapacity; - He neither knows nor should know of the occasion for compliance; - He is confronted by an emergency not due to his own misconduct. - Compliance would involve a greater risk of harm to the actor or to others. Restatement (Third) of Torts provides different factors.
Res Ipsa Loquitur
(1) where a thing is under management of D and accident would not normally happen where proper care is used, jury can infer that accident arose from lack of care in absence of explanation by D (majority rule). (2) it may be inferred that D has been negligent where accident causing P's harm is a type of accident that ordinarily happens b/c of negligence of D (Rest. (Third) of Torts).
Consequences of Res Ipsa Loquitur
Most jurisdictions – application of the doctrine gives rise to a permissible inference of negligence – i.e., it allows but does not compel the jury to find the D acted negligently. Some other jurisdictions – application of the doctrine gives rise to a rebuttable presumption of negligence – i.e., burden shifts to D to disprove negligence.
Self-Defense – No threat of death or serious bodily harm
If a person reasonably believes she is faced with present threat of force not threatening death or bodily injury: - She may use reasonable force not intended or likely to cause death or bodily injury. - She may use such reasonable force even if she reasonably can avoid self-defense by retreating, giving up rights, or complying with commands the other has no right to enforce.
Self-Defense – Threat of death or serious bodily harm
If a person is threatened with force she reasonably believes is intended or likely to cause present death or serious bodily harm: - She can respond with force intended to cause death or serious bodily harm. - She can use that force even if she could avoid the need for defense by retreating into her home, permitting the other to intrude into her home, or abandoning a lawful arrest.
For all claims of self-defense
If D uses excessive or unreasonable force, D is only liable for damages arising from the amount of force that is excessive D must satisfy a subjective standard and an objective standard. D must subjectively belief she if faced with threat of force; and D's belief must be reasonable under the circumstances. If D is mistaken, but her mistake is reasonable, self-defense is available to avoid liability if carried out reasonably.
Necessity is a defense to claim for trespass or other intentional interference with property. Necessity is used offensively to seek damages for the landowner’s interference w/ P's person or property under circumstances of necessity (Ploof). Necessity is used defensively to avoid the landowner’s claim for intentional interference w/property (Vincent). Necessity applies where circumstances NOT caused by P require the necessity (unlike self-defense).
Public Necessity
Public necessity arises where there is a risk to the property of a large number of people and risk can be reduced or eliminated by damaging or destroying P's property With public necessity, the privilege is “absolute” – complete defense to liability. Ex – tearing down a house to avoid spread of fire to the entire neighborhood.
Private Necessity
Private necessity arises where there is a risk to only one person or his property that can be reduced or eliminated by destroying someone else’s property. With private necessity, the privilege is “qualified” in that the D may use the P's property/land but must pay for any damage after the fact.
Strict Liability – Abnormally Dangerous Activities (Rest. 2d)
One who carries out an abnormally dangerous activity is subject to liability for harm to persons, land or chattels even if he used the utmost care. Such strict liability is limited to the kind of harm, the risk of which makes the activity abnormally dangerous.
Strict Liability – Abnormally Dangerous Activities (Rest. 2d) Factors consid. whether activ is abnormally dangerous...
Following factors considered to determine whether activity is abnormally dangerous: - whether activity involves a high degree of risk of harm; - whether gravity of harm is likely to be great; - whether risk cannot be eliminated by exercise of reasonable care; - whether activity is not a matter of common usage; - whether activity is inappropriate to the place where it is carried out; - the value of the activity to the community.
Strict Liability – Abnormally Dangerous Activities (Rest. 3d Draft)
An actor who carries on an abnormally dangerous activity is subject to strict liability for physical harm resulting from the activity. An activity is abnormally dangerous if: - The activity creates a reasonably foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and - the activity is not one of common usage.
Intentional Trespass
P must have exclusive possession of the property. D must intentionally intrude (cause physical invasion) on the land or intend to act with substantial certainty that act will cause an intrusion. Intrusion must be unauthorized. D is liable without P showing of actual damages (nominal damages OK).
Unintentional Trespass
P must have exclusive possession of the property. D's action must result in physical invasion. D's action must be unauthorized. D's action is unintentional but “wrongful” – negligent, reckless or ultra-hazardous. P must show actual damage to recover.
Public Nuisance – Liability (Rest. 821B)
D's action must cause significant interference with right common to the general public (i.e., public health, safety, peace, comfort or convenience); OR Conduct is prohibited by statute, ordinance or regulation; OR Conduct is continuing and long-lasting and actor knows or has reason to know of significant effect on public right.
Public Nuisance – Remedy (Rest. 821C)
For damages -- P must suffer harm different than other members of the public. For injunction -- P must have right to recover damages or have authority as public official or be a representative of general public (i.e. class member or class representative).
Private Nuisance (Rest. 822)
P has “some” interest in property. D's conduct is cause of invasion of P's interest in use and enjoyment of land (no physical invasion required). D's conduct results in significant harm. D's conduct is: Intentional and unreasonable (balancing of factors) OR Unintentional and wrongful (negligent, reckless, abnormally dangerous).
Unreasonableness – Gravity of Harm v. Utility of D's conduct (Rest. 826-828) Trespass & Nuisance
Invasion is unreasonable if: - gravity of harm outweighs utility of D's conduct OR - harm to P is serious and financial burden on D to compensate for this type of harm is feasible. Gravity of P's harm and utility of D's conduct both involve factors that include social value, suitability to locality, and practical considerations.
Standards for Granting Injunctions (Rest. 2d Torts 936) Trespass & Nuisance
Appropriateness of injunction is based on: - Nature of interest to be protected; - Adequacy to P of injunction and other remedies; - Any unreasonably delay by P on bringing suit; - Any relative misconduct on part of P; - Relative hardship likely to result to D if injunction is granted and to P if it is denied; - The practicability of framing and enforcing the order of judgment.
Options for Remedies in Nuisance Cases
No injunction and no damages for P (not a nuisance at all). P gets damages but no injunction based on balancing of factors (activity is a nuisance but doesn't meet injunction standard – Boomer). P gets an injunction for future conduct and damages for past conduct. P gets an injunction but has to pay damages to D (Spur).

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