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Strategies Identify elements and match them to facts


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Joshua Kaplan Professor Geistfeld

Torts Spring 2005



Introductory Notes and Key Points


  1. Strategies

    1. Identify elements and match them to facts

    2. State assumptions if you are making them!

    3. Don’t mention incomplete torts that don’t have good arguments on each side.

    4. Issue Spotting: logical permutations preferable, chronological order is ok.

    5. Give good arguments for both sides (be an advocate)




  1. Ideas:

    1. Comparison with criminal law

      1. Elements are fairly straightforward

      2. Intent is relevant (although in different ways)

      3. Difference  Accidental injuries

      4. Criminal law is public law ; Tort Law is about individual rights and duties

    2. Mass Torts  Disaster causes damages to lots of people

    3. Link between tort law and regulatory law  Polluters creating risks of accidental harm. Is the regulatory system enough? Environmental/workplace regulation.

    4. Standard of proof Preponderance of the evidence (> 51%)

    5. assumption of risk should bar recovery

    6. contributory negligence mitigates recovery (shared liability)

    7. Prima facie case: Allege facts satisfying each element, claim damages

    8. Compensation as key to understanding tort law

      1. security interest has priority over liberty interest

      2. Compensate security interest first (over liberty interest)



  1. Torts and Defenses


Intentional Torts: Defenses to Intentional Torts:

Battery Consent

Trespass Self Defense (also, Defense of Others)

Assault Defense of Property

False Imprisonment Necessity (property torts)

Recapture of Chattel

Intentional Infliction of Emotional Distress (IIED) NOT Insanity!

Fraud
Unintentional Torts: Defenses to Unintentional Torts:

Negligence Comparative Fault

Negligent Infliction of Emotional Distress (NIED)

Strict Liability (products) Assumption of Risk (possibly)

Negligent Misrepresentation



Overview of Tort Theory



  1. Two main practical objectives

    1. Compensation –of injured Π; indemnity or restitution for harms; vindicate parties and deter retaliation or violent and unlawful self-help ( Restatement 2nd).

    2. Deterrence –– maximizing wealth, minimizing (discouraging) risk; tort is a very expensive insurance policy, so SL is usually bad. Negligence liability remedies injustices and supplies incentives to deter unjust behavior. Think Restatement 3rd. [NOTE: argued that criminal system captures as much deterrence as is necessary]

    3. 2 justifications sometimes seem in conflict

      1. Compensation would say just require injury (no need to evaluate fault).

      2. Deterrence implies effect of injury doesn’t matter (punish conduct).




  1. 2 Theoretical justification

    1. Economic view  Cost minimization (goes well with deterrence)

      1. injuries are social costs, Precautions are social costs; regulate accidents in order to reduce accident costs.

      2. Problem: Does a good job of explaining lots of doctrine, but lacks a good normative justification.

    2. Fairness – “corrective justice,” rights based view (goes well with compensation)

      1. Individual rights protected for some other reason (e.g. autonomy). Redress for wrongful behavior.

      2. Problem: Can’t explain Strict Liability




  1. Prioritizing Interests

    1. Security interest has priority over liberty interest Serious injury bigger threat to autonomy than taking precautions/paying damages

    2. Strict liability is proof  Damages without wrongful behavior, e.g. innocent trespass

    3. If we start off with priority of security over liberty interest, all intentional torts are easy

    4. choice between negligence and SL choose what better protects security interest

    5. death and severe physical injury safety over money

      1. Damages do no good for the dead; help injured, but don’t make whole

        1. In practice, lower damages for death than serious injury cases

      2. Most severe violation of security interest is not well protected

      3. Severe injuries  damages help but they don’t make people whole




  1. The Ideal World  Complete Protection

    1. In ideal, no tort law needed  fully consensual outcomes

    2. Ideal Transaction (Driver/pedestrian)

      1. Evaluating risk

        1. Driver will take precaution as long as B < PL.

        2. When B > PL, will choose to take risk and pay for it

      2. Setting a price  monetizing injury:

        1. identify risk in question ( 1 in 10,000 chance)

        2. Find minimum amount of money victim Willing To Accept (WTS) in order to assume, e.g. $25.

      3. Paying damages: Driver pay and pedestrian is no worse off than she would have been without the risk  $25 compensates for risk (price or risk goes up as probability of injury goes up)

      4. Compensating for actual injury $25 * 10,000 = $250,000 (L)




  1. Negligence liability and fair compensating for wrongful death

    1. There is no way to compensate for death; Driver gets a windfall if he kills victim

    2. Negligence Liability can compensate potential victim by requiring standard of care above cost-benefit amount

      1. Injurer has to pay more for care, but doesn’t have to pay for full value of wrongful death

      2. Victim compensated with extra safety

    3. Punitive damages solves behavioral problems  Forces injurer to take inefficient precautions




  1. Use of Strict Liability when it reduces risks better than negligence

    1. Negligence liability for Reciprocal risks

      1. Parties are equal with respect to each other; i.e. both engage in risky behavior

      2. Highly significant risks of common activity merge into background risk of living in society assumed by each member.

      3. Victim of reasonable risk is compensated by general good and right to engage in activity (pedestrian compensated by exercise of own right to drive over time)

      4. Individuals can insure themselves against reasonable risk at lower cost than compensation through tort system

    2. Strict Liability Non-reciprocal risks

      1. Π gets no benefit from being able to perform activity in reasonable manner

      2. Negligence rule does not provide reciprocal benefit

      3. Potential victims must be compensated for their injuries

      4. If negligence and SL would result in identical risk levels, guarantee of compensation gives SL an advantage in these cases.

    3. Evidentiary problems

      1. If Π can never prove causation, there’s no incentive for injurer to take reasonable care

      2. Strict Liability provides motivation for injurer to at least take efficient precautions (B




  1. Limitations of duty

    1. Security has priority over liberty

    2. Scarcity – can’t compensate all injuries

    3. Allocated payment to physically injured victim Ensures that ∆ had enough resources to compensate most important injuries (i.e. security interest violations)

    4. Emotional distress

      1. won’t bankrupt claimant if you add a few more parties to the pool

      2. Still an injury

      3. Is by definition an arbitrary line

Intentional Torts

In General


  1. Interests Perspective: 3 main interests:

    1. physical security interest – includes interest in real property and chattel

    2. liberty interest – moving about the world

    3. interest in emotional tranquility – dignitary harms like assault.

    4. If interests are equal, then the law seems to lie where it falls – in essence a fairness argument relying on normative distinction between interests




  1. Motive v. Intent

    1. Motive – one’s over all purpose in acting – is often irrelevant

      1. Example: A punches B in the face, because he thinks pain will be good for B.

      2. A still had intent to punch B.

      3. A committed Battery regardless of motive

      4. Evidentiary concern: Motive is difficult to determine.

      5. Motive is relevant for certain defenses (e.g. self defense)

    2. Intent The action itself that you mean to perform

      1. Knowledge  Outcome is substantially certain.

        1. As long as act is substantially certain, intent is established

        2. Garrat v. Dailey - Boy pulls chair out from under aunt. She falls and gets hurt. He may not have had motive to hurt, but knowledge was there

        3. Statistical knowledge does NOT establish intent – ∆ has to intend harmful conduct towards ∏

          1. Example  defective coke bottle explodes (1 in 10,000 chance). The fact that it’s done 10,000 times will result in injury does not mean that any one act is a substantial certainty

        4. High likelihood is not enough to establish intent

      2. Purpose becomes relevant in cases when result is not substantially certain.

      3. Recklessness – not an intent with substantial certainty




  1. Unintended Consequences and Transferred Intent

    1. Eggshell-skull rule: Liable for harm that directly results from conduct.

      1. Take victim as you find him; liable for results even if not foreseeable

      2. Considered damages rule, but all damages questions are ultimately causal questions.

    2. Cole v. Hibbard  Hibbard was drunk and kicked Cole. She did not intend to injure her. intent is satisfied by intent to touch, not intent to cause specific damages

    3. Transferred Intent

      1. If ∆ had requsite intent with repsoenct to A, liable for intentional tort against any other person who is injured.

      2. Shooting a gun into a crowd of 10,000 – have malicious intent and substantial certainty of hitting somebody – doesn’t matte who victim is.

      3. Occurs across torts and victims –

        1. could intend assault to A, and be liable for battery against B

        2. White shot at Tipton and hit Davis. He intended to assault Tipton, but was liable for battery against Davis.




  1. Defenses

    1. Excuses are much more limited than in criminal law – reason behind action is much less important. More worried about compensation than culpability.

    2. Consent

      1. Non-consentual nature of interaction is the paramount concern of tort system

      2. Absence of consent creates concern about autonomy of the parties.

      3. Express consent NO LIABILITY

      4. Implied consent Fictional consent – circumstances imply that person would’ve consented

        1. look for objective manifestation

        2. Consent as a matter of law: implied if 1) Π unable to consent; 2) immediate action necessary to save Π’s life or health; 3) no indication Π would not consent; 4) reasonable person would consent.

          1. Emergency medical situations: conduct is justified out of concern that ordinary liability for battery will be disruptive of emergency life-saving

          2. Reasonable to assume the person would want to be saved (may be Christian Scientist, etc.)

      5. Capacity to consent – applies to children, disabled, etc

        1. NOTE: no private right of action for statutory rape

        2. intoxication may inhibit capacity

      6. Scope of Consent: - once established, question is often what did Π consent to?

        1. Scope of consent is usually an issue of fact for the jury.

        2. Medical Contexts patient consents to specific action performed and to risks that are entailed

        3. Athletic Injuries Koffman v. Garnett – Football Coach tells player to stay still and tackles him. Breaks player’s arm.

      7. Uninformed consent may be viewed in two ways

        1. Scope of consent

        2. No consent at all because of lack of awareness

      8. Substitute ConsentParents can consent for children, incompetents




    1. Self Defense/Defense of Others

      1. Reasonable belief in impending harm (harmful or offensive contact; confinement or imprisonment)

      2. Imminence - prevents “self help” when possible to go to authorities

      3. Proportionality  use reasonable force

      4. Only for protection  NOT retaliation

      5. Courts split on duty to retreat  NO duty to retreat in one’s home

      6. Reasons to allow self help

        1. Some jurisdictions say fleeing causes dignitary harm

        2. Tort remedy doesn’t fully compensate for certain harms (death)

        3. Reasonableness and balance of interests

          1. Attacker  unreasonable liberty interest

          2. Bystander  reasonable security interest

          3. Self-Defender  reasonable security interest

          4. Security is generally a priority over liberty.

      7. Aggressor cannot claim self defense, unless he disengages.

        1. If defender uses excessive force, could become liable for battery.

        2. If you attack or trespass, you do not forgo all of your tort rights.

      8. Defense of others: may use reasonable force to defend another person; split about reasonable mistake




    1. Defense of Property

      1. 3 elements: reasonableness, imminence, proportionality

      2. Warning required, unless reasonably appears that violence/harm will occur immediately, or request to stop useless

      3. Mistake as to danger is reasonable; mistake as to intruder’s right to be there is not.

      4. May only use deadly force if non-deadly would not suffice; reasonable belief in death/serious injury.

      5. Rule: Security interest trumps liberty interest. Defense of mere property does not justify use of excessive force (especially fungible property).

      6. Use of mechanical device will be judges by whether or not similar force would be allowed if owner was present in person.

      7. What if ∏ was stealing ∆’s life savings?

        1. Discretionary money is generally thought of as liberty interest

        2. level of protection increases as money becomes more important




    1. Recapture of Chattels

      1. 3 elements: reasonableness, imminence, proportionality

      2. May use reasonable force in cases of momentary possession (imminence/fresh pursuit):

        1. Self help remedy may be more effective

        2. Less likely to be mistakes.

      3. May not use force if person has had possession over period of times

        1. Example  See someone with your bike that was stolen a week ago.

      4. Use of force only if wrongful taking  Π cannot use force to repossess object willingly parted with

      5. extreme force is justified when there is a threat to persona safety, e.g. against one who breaks into house at night.

      6. Merchants Can temporarily detain suspected thief for investigation – must call police after short period




    1. Necessity

      1. Element of choice removed because of a change in physical circumstances beyond control – e.g. forced to trespass

      2. Privilege to harm property interest of Π where necessary to prevent great harm to 3rd person or to ∆ herself.

      3. Public necessity: no compensation if acted to prevent disaster to community

      4. Private necessity: prevent harm to self, property or 3rd person

        1. actual damage: Π must pay for any damage that occurs to ∆’s property - no damage means no liability for trespass

        2. owner may not resist: purpose of doctrine to prevent owner from resisting exercise of privilege

      5. Ploof:: Plaintiffs tied boat to D’s dock. D untied boat; liable for damages. Trespass was justified because the security interest of defendant outweighs property interest of plaintiff

      6. Vincent: Ship at end of the dock stayed in harbor when storm made it unsafe for captain to leave. owners of ship had to pay for damages to the dock cause by the ship (internalization of cost leads to efficient action).

      7. Purposeful availment – qualitative nature of choice – ties into fairness arguments and Kantian ethics (treating others as means instead of ends)

        1. Trolley Driver Problem – switches track to kill 1 person instead of 5. That 1 person did not have to be on tracks to save the other 5 – he was a coincidence.

        2. Surgeon harvesting organs – kills 1 to save 5 That person had to be killed to save the other people, but there was purposeful availment




    1. Insanity NOT a defense, except for reflex actions


Physical Harms


  1. Battery  intentional infliction of harmful and unlawful bodily contact

    1. Elements:

      1. Act

      2. Intending to cause

        1. harmful contact , or

        2. contact with victim that is offensive; and

      3. Act causes such contact

    2. Differs from Assault, in that assault requires apprehension of the harm

    3. need NOT intend to physically harm Π

    4. Herr v. Booten  Day before 21st B-day, Herr’s friends took him out, bought him alcohol. He drank too much and died. Ruling: Supplying alcohol to someone before 21st birthday is negligence but there was no battery. No intent: no knowledge (substantial certainty) that Herr would chug the bottle of JD

    5. Π need not be aware of contact as it happens; e.g. still a battery if ∆ kisses Π while Π is sleeping

    6. Offensive contact: Some battery cases are based on offensive contact that is not necessarily harmful. Example  Spitting in face

      1. Still an interest in physical integrity/safety.

      2. Dignitary harms raise more complex questions - Social context matters

    7. [Intent for assault also satisfied intent for battery if contact occurs]



Dignitary/emotional harms


  1. Assault  intentionally causing apprehension of imminent harmful/offensive contact

    1. Elements

      1. Act

      2. Intending to cause apprehension of:

        1. imminent harmful contact, or

        2. imminent offensive contact; and

      3. Act caused such reasonable apprehension

    2. Differs from battery  Assault must only create apprehension of imminent physical harm in defendant

    3. No requirement of malice or intent to harm.

    4. [Intent for battery satisfies intent for assault]

    5. Π must be aware of danger. Apprehension of harm to third party will not be an assault.

    6. Key concepts: Apprehension, reasonable, Imminent

      1. Imminent: “I’d break your neck if it was Friday,” is not an assault if it’s not Friday. Could still have emotional distress claim if not imminent

      2. Apprehension:

        1. This can come from words, acts, etc.

        2. Apprehension is NOT FEAR

          1. Example: Even if A is sure he can overcome B, B can still assault A.

          2. Battery protects from the fear of intentional physical harms.

          3. Assault protects from the apprehension of battery.

      3. Reasonable

        1. Links to requirement of intent If A knew B was watching movies all day long and tapped him on shoulder with intent to scare, reasonable apprehension

        2. Varies with social context – classroom vs. playground; haunted house on Halloween; sports games (consent as a defense)

    7. Brooker v. Silverthorne - Man threatened phone operator that if he was there he would break her neck. No assault - fear of harm was not justified.




  1. False Imprisonment  intentional infliction of confinement

    1. Elements:

      1. Act

      2. Intended to obstruct or detain

      3. Act obstructs or detains

    2. No liability for negligently/unintentionally creating imprisonment, unless serious injury caused

    3. Does NOT require force – threats, coercion, assertion of legal autority enough

    4. Π must either be aware of confinement, or suffer some injury

    5. NOTE: competing liberty interests. Kidnapper’s unreasonable liberty interest vs. victim’s reasonable liberty interest

    6. Merchant necessity defense: holing person he wrongly believes is shoplifting

      1. Originally, liberty and economic interests thought to be equal – loss lies where it falls.

      2. shoplifting became a big problem, owners needed to be able to detain people and investigate

      3. Reasonableness: reasonable method, reasonable belief, reasonable time




  1. Infliction of Emotional Distress intentional or reckless infliction, by extreme and outrageous conduct of severe mental or emotional distress.

    1. Elements

      1. Extreme and outrageous conduct”

        1. such that “a reasonable person can’t endure” – presumption that it would harm

        2. “beyond all possible bounds of decency”

      2. Intent to cause emotional distress.

        1. desires

        2. substantially certain

        3. recklessly disregards high probability

        4. transferred intent is limited: Π must be immediate family member of victim, present, , and Π’s presence known to ∆

      3. severe emotional distress occurs as a result of conduct

        1. Π must show that she sought medical aid

        2. usually does not have to prove resultant bodily harm

    2. Interests – Π’s emotional tranquility vs. ∆’s liberty

    3. Parasitic damages. Compensation for emotional harm that accompany a predicate tort,

    4. Recognized later than other torts because:

      1. injuries are not as manifest

      2. Emotional harms are an inevitable part of living in society

      3. Change in social circumstances (subsidence of gendered perspective)

      4. Original torts were made to prevent self-help/physical violence. As concern disappears, there is ability to deal with “secondary issue

    5. Concerns: False Claims, coordination with existing causes of action, Impact on behavior of duty holder.

    6. Neglignet Infliction of Emotional Distress (NIED)

    7. Dickens 31 year-old man has sexual relationship with 17 year-old girl. Parents lure to desserted area, beat up, threaten castration if he doesn’t leave town. Complaint filed after SOL for assault (effects harder to discover, so longer SOL). Holding: Plaintiff should be allowed to bring action for emotional distress – continued threat on his life goes beyond assault

    8. Littelfield v. McGuffey Π is moving into apartment; Black boyfriend comes with their daughter to pay for installation. D refuses to rent, calls Π pretending to boyfriend, harasses Π’s sister.

    9. Doe 1 v. Roman Catholic Diocese of Nashville: RIED Π’s molested by priest after terminated sue Church sue for Reckless IED (Church didn’t disclose facts about past). Court lets Church off – no intentionality; conduct not “directed at” bystanders (parents). Justification for ruling is elusive: limit # of victims, because you don’t want to “chill” behavior, but this is not the type of behavior we worry about chilling. In reality liability should be limited to prevent bankruptcy and ensure compensation to actual victims.


Property Torts (Possessory interests)


  1. Trespass to Land

    1. Elements:

      1. Π owns land

      2. ∆ either enters Π’s land w/o permission; or remains on Π’s land w/o right (even if entered w/ right); or puts an object on (or refuses to remove object from) Π’s land.

      3. Intent

        1. Intentional trespass

        2. negligent trespass treated as negligent

        3. innocent trespass: ∆ intends to be on land, and land belongs to Π

    2. NOTE: Innocent Trespass and Strict Liability:

      1. historical conditions – gave courts opportunity to mark property lines

      2. Punitive damages: compensatory damages are nominal, but they allow for court to impose punitive damages

      3. Property rights includes right to exclude

      4. Protection of that right requires punitive damages. Otherwise, people will just trespass and pay nominal fee every time.

    3. Trespass to airspace: plane flies within immediate reaches of airspace (below federal minimum altitude), and substantially interferes w/ Π’s use and enjoyment

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