Learning Flashcards

Question

As an intentional tort defense, explain: I. CONSENT

Answer 1

A. Express consent: If P expressly consents to an intentional interference with his person or property, D will not be liable for that interference. [53] (Example: P says to D, "Go ahead, hit me in the stomach – I’ll show you how strong I am." If D does so, P’s consent prevents P from suing for battery.) B. Implied consent: Existence of consent may also be implied from P’s conduct, from custom, or from the circumstances. [53 - 54] 1. Objective manifestation: It is the objective manifestations by P that count – if it reasonably seemed to one in D’s position that P consented, consent exists regardless of P’s subjective state of mind. [53] (Example: D offers to vaccinate all passengers on their ship. P holds up her arm and receives the vaccination. Since it reasonably appeared to D that P consented, there will be consent regardless of P’s actual state of mind. [O’Brien v. Cunard]) C. Lack of capacity: Consent will be invalidated if P is incapable of giving that consent, because she is a child, intoxicated, unconscious, etc. [54 - 55] 1. Consent as a matter of law: But even if P is incapable of truly giving consent, consent will be implied "as a matter of law" if these factors exist: (1) P is unable to give consent; (2) immediate action is necessary to save P’s life or health; (3) there is no indication that P would not consent if able; and (4) a reasonable person would consent in the circumstances. [54 - 55] (Example: P is brought unconscious to the emergency room of D, a hospital. D can perform emergency surgery without P’s actual consent – consent will be implied as a matter of law. Therefore, P cannot sue for battery.) D. Exceeding scope: Even if P does consent to an invasion of her interests, D will not be privileged if he goes substantially beyond the scope of that consent. [56 - 58] Example: P visits D, a doctor, and consents to an operation on her right ear. While P is under anesthetic, D decides that P’s left ear needs an operation as well, and does it. P’s consent does not block an action for battery for the left-ear operation, since the operation went beyond the scope of P’s consent. [Mohr v. Williams] 1. Emergency: However, in the surgery case, an emergency may justify extending the surgery beyond that consented to. [56 - 57] E. Consent to criminal acts: Where D’s act against P is a criminal act, courts are split. The majority rule is that P’s consent is ineffective if the act consented to is a crime. [60 - 61] (Example: P and D agree to fight with each other. In most states, each may recover from the other, on the theory that consent to a crime – such as breach of peace – is ineffective.)

Answer 2

A. Privilege generally: A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact, and any threatened confinement or imprisonment. [61] B. Apparent necessity: Self-defense may be used not only where there is a real threat of harm, but also where D reasonably believes that there is one. [61 - 62] C. Only for protection: The defense of self-defense applies only where D uses the force needed to protect himself against harm. [62] 1. Retaliation: Thus D may not use any degree of force in retaliation for a tort already committed. [62] (Example: P hits D with a snowball. Ten minutes later, D hits P with a snowball, in retaliation. D has committed battery on P, because D’s act was not done in true self-defense.) 2. Imminence: D may not use force to avoid harm which is not imminent, unless it reasonably appears that there will not be a later chance to prevent the danger. [62] (Example: P says to D, "I will beat you up tomorrow." D cannot beat P up today, to prevent tomorrow’s attack, unless it appears that there will be no way for D to defend tomorrow.) D. Degree of force: Only the degree of force necessary to prevent the threatened harm may be used. If D uses more force than necessary, he will be liable for damage caused by the excess. [63] 1. Deadly force: Special rules limit the use of deadly force, i.e., force intended or likely to cause death or serious bodily injury. [63 - 64] a. Danger must be serious: D may not use deadly force unless he himself is in danger of death or serious bodily harm. (Example: P attacks D with his fists, in a way that does not threaten D with serious bodily harm. Even if there is no other way for D to prevent the attack, D may not use his gun to shoot P, even if the shot is intended only to injure P – D must submit to the attack rather than use deadly force.) E. Retreat: Courts are split on whether and when D has a "duty to retreat" (i.e., to run away or withdraw) if the threatened harm could be avoided this way. [64] 1. Restatement view: The Second Restatement holds that: (1) D may use non-deadly force rather than retreating; but (2) D may not use deadly force in lieu of retreating, except if attacked in his dwelling by one who does not reside in the dwelling. [64] (Example: If P attacks D on the street with a knife, under the Restatement D may use his fists rather than running away, but may not use a gun rather than running away if running away would avoid the danger. If the attack took place in D’s home, where P was not also a resident, then D could use the gun.)

Answer 3

A. General rule: A person may use reasonable force to defend another person against attack. The same rules apply as in self-defense: the defender may only use reasonable force, and may not use deadly force to repel a non-deadly attack. [65] 1. Reasonable mistake: The courts are split on the effect of a reasonable mistake. Older courts hold that the intervener "steps into the shoes" of the person aided, and thus bears the risk of a mistake. But Rest.2d gives a "reasonable mistake" defense to the intervener. [65]

Answer 4

A. General rule: A person may generally use reasonable force to defend her property, both land and chattels. [65 - 68] 1. Warning required first: The owner must first make a verbal demand that the intruder stop, unless it reasonably appears that violence or harm will occur immediately, or that the request to stop will be useless. [66] B. Mistake: The effect of a reasonable mistake by D varies: 1. Mistake as to danger: If D’s mistake is about whether force is necessary, D is protected by a reasonable mistake. [66] (Example: D uses non-deadly force to stop a burglar whom he reasonably believes to be armed. In fact, the burglar is not armed. D can rely on the defense of property.) 2. Privilege: But if the owner’s mistake is about whether the intruder has a right to be there, the owner’s use of force will not be privileged. [66] (Example: D reasonably believes that P is a burglar. In fact, P is a friend who has entered D’s house to retrieve her purse, without wanting to bother D. Even non-deadly force by D will not be privileged.) C. Deadly force: The owner may use deadly force only where: (1) non-deadly force will not suffice; and (2) the owner reasonably believes that without deadly force, death or serious bodily harm will occur. [66] (Example: D sees P trespassing in P’s backyard. D asks P to leave, but P refuses. Even if there is no way to make P leave except by shooting at him, D may not do so, since P’s conduct does not threaten D with death or serious bodily harm.) 1. Burglary: But a homeowner is generally allowed to use deadly force against a burglar, provided that she reasonably believes that nothing short of this force will safely keep the burglar out. [67] D. Mechanical devices: An owner may use a mechanical device to protect her property only if she would be privileged to use a similar degree of force if she were present and acting herself. [67 - 69] 1. Reasonable mistake: An owner’s right to use a dangerous mechanical device in a particular case will be measured by whether deadly force could have been used against that particular intruder. [67] (Example: D uses a spring gun to protect his house while he is away. If the gun shoots an actual burglar, and state law would have allowed D to shoot the burglar if D was present, then D will not be liable for using the spring gun. But if a neighbor, postal carrier, or someone else not engaged in a crime happened to enter and was shot, D would not have a "reasonable mistake" defense – since D could not have fired the gun at such a person directly, the spring gun may not be used either.) Allowed to use “gentle hands” to protect property, but cannot maim or kill for property. The gentle hands rule allows for escalation to self defense, bc they rob you, you use gentle hands, they assault you and then you can self defense. Bu tnever use man trap or snare gun.

Answer 5

A. Generally: A property owner has the general right to use reasonable force to regain possession of chattels taken from her by someone else. [69 - 72] 1. Fresh pursuit: The privilege exists only if the property owner is in "fresh pursuit" to recover his property. That is, the owner must act without unreasonable delay. [69] (Example: A learns that B has stolen a stereo and is in possession of it. A may use reasonable force to reclaim the stereo if he acts immediately, but not if he waits, say, a week between learning that D has the property and attempting to regain it.) 2. Reasonable force: The force used must be reasonable, and deadly force can never be used. [69] 3. Wrongful taking: The privilege exists only if the property was taken wrongfully from the owner. If the owner parts willingly with possession, and an event then occurs which gives him the right to repossess, he generally will not be able to use force to regain it. [69 - 70] (Example: O rents a TV to A. A refuses to return the set on time. O probably may not use reasonable force to enter A’s home to repossess the set, because A’s original possession was not wrongful.) B. Merchant: Where a merchant reasonably believes that a person is stealing his property, many courts give the merchant a privilege to temporarily detain the person for investigation. [70 - 71] 1. Limited time: The detention must be limited to a short time, generally 10 or 15 minutes or less, just long enough to determine whether the person has really shoplifted or not. Then, the police must be called (the merchant may not purport to arrest the suspect himself). [71]

Answer 6

A. General rule: Under the defense of "necessity," D has a privilege to harm the property interest of P where this is necessary in order to prevent great harm to third persons or to the defendant herself. [72 - 75] B. Public necessity: If interference with the land or chattels of another is necessary to prevent a disaster to the community or to many people, the privilege is that of "public necessity." Here, no compensation has to be paid by the person doing the damage. [73 - 74] (Example: Firefightersdemolish D’s house, in which a fire has just barely started, because that is the best way to stop the fire from spreading much further. The firefighters, and the town employing them, probably do not have to pay, because they are protected by the privilege of public necessity.) C. Private necessity: If a person prevents injury to himself or his property, or to the person or property of a third person, this is protected by the privilege of "private necessity," if there is no less-damaging way of preventing the harm. [74 - 75] (Example: A, while sailing, is caught in very rough seas. To save his life, he may moor at a dock owned by B, and will not be liable for trespass.) 1. Actual damage: Where the privilege of private necessity exists, it will be a complete defense to a tort claim where P has suffered no actual substantial harm (as in the above example). But if actual damage occurs, P must pay for the damage she has caused. (Example: On the facts of the above example, if A’s boat slammed into B’s dock and damaged it, A would have to pay.) [75] 2. Owner may not resist: The main purpose of the doctrine of private necessity is to prevent the person whose property might be injured from defeating the exercise of the privilege. [75] Example: P moors his ship at D’s dock, to avoid being shipwrecked by heavy seas. D, objecting to what he thinks is a trespass, unmoors the ship, causing the ship to be harmed and P to be injured. P may recover from D, because P’s mooring was privileged by private necessity and D, therefore, acted wrongfully. [Ploof v. Putnam, 74]

Answer 7

A. Common law rules: 1. Arrest with warrant: Where a police officer executes an arrest with an arrest warrant that appears to be correctly issued, he will not be liable even if it turns out that there was no probable cause or the procedures used to get the warrant were not proper. [76] 2. Arrest without warrant: [76 - 77] a. Felony or breach of peace in presence: A police officer may make a warrantless arrest for a felony or for a breach of the peace, if the offense is being committed or seems about to be committed in his presence. A citizen may do the same. b. Past felony: Once a felony has been committed, an officer may still make a warrantless arrest, provided that he reasonably believes that the felony has been committed, and also reasonably believes that he has the right criminal. A citizen may make an arrest only if a felony has in fact been committed (though the citizen is protected if she makes a reasonable mistake and arrests the wrong person). c. Misdemeanor: At common law, no warrantless arrest (either by an officer or by a citizen) may be made for a past misdemeanor not involving a breach of the peace. 3. Reasonable force: One making an arrest may not use more force than is reasonably necessary. [77 - 78] a. Prevention: Where the arrest is made to prevent a felony which threatens human life or safety, even deadly force may be used, if there is no other way to prevent the crime. But where the felony does not involve such danger, deadly force may not be used. b. Apprehension after crime: If a crime has already been committed, the police may use deadly force only if the suspect poses a significant threat of death or serious physical injury to others. (Example: Officer spots Burglar escaping after his crime. Officer knows that Burglar is unarmed and unlikely to be violent. Officer may not shoot at Burglar to arrest him, even if there is no other way to make the arrest.)

Answer 8

A. Generally: Even if D’s conduct does not fit within one of the narrower defenses, she may be entitled to the general defense of "justification," a catch-all term used where there are good reasons for exculpating D from what would otherwise be an intentional tort. [79]

Answer 9

Offensive battery is somethign deeply offensive like putting feces on people or spitting on bus drivers etc. So it may not be deep bruising, but it’s super ofensive thing to happen.

Answer 10

I. COMPONENTS OF TORT OF NEGLIGENCE A. Generally: The tort of "negligence" occurs when D’s conduct imposes an unreasonable risk upon another, which results in injury to that other. The negligent tortfeasor’s mental state is irrelevant. [87] B. Prima facie case: The components of a negligence action are: [87] 1. Duty: A legal duty requiring D to conduct himself according to a certain standard, so as to avoid unreasonable risk to others; 2. Failure to conform: A failure by D to conform his conduct to this standard. (This element can be thought of as "carelessness.") 3. Proximate cause: A sufficiently close causal link between D’s act of negligence and the harm suffered by P. This is "proximate cause." 4. Actual damage: Actual damage suffered by P. (Compare this to most intentional torts, such as trespass, where P can recover nominal damages even without actual injury.)

Answer 11

II. UNREASONABLE RISK ``` A. Generally: P must show that D’s conduct imposed an unreasonable risk of harm on P (or on a class of persons of whom P is a member). [87] 1. Not judged by results: It is not enough for P to show that D’s conduct resulted in a terrible injury. P must show that D’s conduct, viewed as of the time it occurred, without benefit of hindsight, imposed an unreasonable risk of harm. [87 - 88] ``` B. Balancing: In determining whether the risk of harm from D’s conduct was so great as to be "unreasonable," courts use a balancing test: "Where an act is one which a reasonable [person] 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." [88 - 89]

Answer 12

III. THE REASONABLE PERSON A. Objective standard: The reasonableness of D’s conduct is viewed under an objective standard: Would a "reasonable person of ordinary prudence," in D’s position, do as D did? D does not escape liability merely because she intended to behave carefully or thought she was behaving carefully. [91] B. Physical and mental characteristics:The question is whether D behaved reasonably "under the circumstances." "The circumstances" generally include the physical characteristics of D himself. [91 - 94] 1. Physical disability: Thus if D has a physical disability, the standard for negligence is what a reasonable person with that physical disability would have done. [91 - 92] (Example: P is blind and is struck while crossing the street using a cane. If the issue is whether P was contributorily negligent, the issue will be whether a blind person would have crossed the street in that manner.) 2. Mental characteristics: The ordinary reasonable person is not deemed to have the particular mental characteristics of D. [92] (Example: If D is more stupid, or more careless, than an ordinary person, this will not be a defense.) 3. Intoxication: Intoxication is no defense – even if D is drunk, she is held to the standard of conduct of a reasonable sober person. [93] 4. Children: A child is held to the level of conduct of a reasonable person of that age and experience, not that of an adult. [93 - 94] a. Adult activity: But where a child engages in a potentially dangerous activity normally pursued only by adults, she will be held to the standard of care that a reasonable adult doing that activity would exercise. (Example: If D operates a motorboat, an activity that is potentially dangerous and normally pursued by adults, D must match the standard of care of a reasonable adult boater.) C. Custom: Courts generally allow evidence as to custom for the purpose of showing presence or absence of reasonable care. However, this evidence is generally not conclusive. [96] 1. Evidence by D: Thus where D shows that everyone else in the industry does things the way D did them, the jury is still free to conclude that the industry custom is unreasonably dangerous and thus negligent. [96] (Example: D operates a tugboat without a radio; the fact that most tugboats in the industry do not yet have radios does not prevent the jury from holding that D’s lack of a radio was negligent. [The T.J. Hooper]) 2. Proof by plaintiff: Conversely, proof offered by P that others in D’s industry followed a certain precaution that D did not, will be suggestive but not conclusive evidence that D was negligent. [96] D. Emergencies: If D is confronted with an emergency, and is forced to act with little time for reflection, D must merely behave as a reasonable person would if confronted with the same emergency, not as a reasonable person would with plenty of time to think. [97 - 97] (Example: D is a cab driver. A thief jumps in the cab, points a gun at D’s head, and tells him to drive fast. D, in a panic, mistakenly puts the car in reverse and injures P. The issue is whether a cab driver confronted with a gun-pointing thief would or might have behaved as D did, not whether a cab driver in ordinary circumstances would have behaved that way.) E. Anticipating conduct of others: A reasonable person possesses at least limited ability to anticipate the conduct of others. [98 - 99] 1. Negligence: D may be required to anticipate the possibility of negligence on the part of others. [98] (Example: It may be negligence for D to presume that all drivers near him will behave non-negligently, and that these others will not speed, signal properly, etc.) 2. Criminal or intentionally tortious acts: Normally the reasonable person (and, hence, D) is entitled to presume that third persons will not commit crimes or intentional torts. [98 - 99] a. Special knowledge: But if D has a special relationship with either P or a third person, or special knowledge of the situation, then it may be negligence for D not to anticipate a crime or intentional tort. (Example: It may be negligence for D, a psychiatrist, not to warn P that a patient of D’s is dangerous to P. [Tarasoff v. Regents, 99])

Answer 13

IV. MALPRACTICE A. Superior ability or knowledge: If D has a higher degree of knowledge, skill or experience than the "reasonable person," D must use that higher level. [100] (Example: D, because she is a local resident, knows that a stretch of highway is exceptionally curvy and thus dangerous. D drives at a rate of speed that one who did not know the terrain well would think was reasonable, and crashes, injuring her passenger, P. Even though D’s driving would not have represented carelessness if done by a reasonable person with ordinary knowledge of the road, D was responsible for using her special knowledge and is negligent for not doing so.) B. Malpractice generally: Professionals, including doctors, lawyers, accountants, engineers, etc., must act with the level of skill and learning commonly possessed by members of the profession in good standing. [100 - 103] 1. Good results not guaranteed: The professional will not normally be held to guarantee that a successful result will occur, only that she will use the requisite minimum skill and competence. [100] 2. Differing schools: If there are conflicting schools of thought within a profession, D must be judged by reference to the belief of the school he follows. [100] (Example: An osteopath is judged by the standards of osteopathy, not the standards of medicine at large.) 3. Specialists: If D holds herself out as a specialist in a certain niche in her profession, she will be held to the minimum standard of that specialty. [101] (Example: An M.D. who holds herself out as an ophthalmologist must perform to the level of the minimally competent ophthalmologist, not merely to the minimum level of the internist or general practitioner.) 4. Minimally qualified member: It is not enough for P to prove that D performed with less skill than the average member of the profession. D must be shown to have lacked the skill level of the minimally qualified member in good standing. [101] a. Novice: One who is just beginning the practice of his special profession is held to the same level of competence as a member of the profession generally. [103] (Example: A lawyer who has just passed the bar does not get the benefit of a lower standard – he must perform at the level of minimally competent lawyers generally, not novices.) 5. Community standards: Traditionally, doctors and other professionals have been bound by the professional standards prevailing in the community in which they practice, not by a national standard. [102] (Example: Traditionally, the "country doctor" need not perform with the skill commonly found in cities.) a. Change in rule: But this rule is on its way out, and many if not most courts would today apply a national standard. In "modern" courts, P may therefore use expert testimony from an expert who practices outside of D’s community. 6. Informed consent: In the case of a physician, part of the professional duty is to adequately disclose the risks of proposed treatment to the patient in advance. The rule requiring adequate disclosure is called the rule of "informed consent." The doctor must disclose to the patient all risks inherent in the proposed treatment which are sufficiently material that a reasonable patient would take them into account in deciding whether to undergo the treatment. Failure to get the patient’s adequate consent is deemed a form of malpractice and thus a form of negligence. (In some cases, usually older ones, failure to get informed consent transforms the treatment into battery.) [102 - 103]

Answer 14

V. AUTOMOBILE GUEST STATUTES A. Generally: A minority of states still have "automobile guest statutes" on their books. These generally provide that an owner-driver is not liable for any injuries received by his non-paying passenger, unless the driver was grossly negligent or reckless. [104]

Answer 15

VI. VIOLATION OF STATUTE A. "Negligence per se " doctrine: Most courts apply the "negligence per se" doctrine: when a safety statute has a sufficiently close application to the facts of the case at hand, an unexcused violation of that statute by D is "negligence per se," and thus conclusively establishes that D was negligent. [105] Example: D drives at 65 m.p.h. in a 55 m.p.h. zone. While so driving, he strikes and injures P, a pedestrian. Because the 55 m.p.h. limit is a safety measure designed to protect against accidents, the fact that D has violated the statute without excuse conclusively establishes that D was negligent – D will not be permitted to argue that it was in fact safe to drive at 65 m.p.h. 1. Ordinances and regulations: In virtually all states, the negligence per se doctrine applies to the violation of a statute. Where the violation is of an ordinance or regulation, courts are split about whether the doctrine should apply. [106] B. Statute must apply to facts: The negligence per se doctrine will apply only where P shows that the statute was intended to guard against the very kind of injury in question. [107 - 112] 1. Class of persons protected: This means that P must be a member of the class of persons whom the statute was designed to protect. [107] (Example: A statute requires all factory elevators to be provided with a certain safety device. The legislative history shows that the purpose was only to protect injuries to employees. P, a business visitor, is injured when the elevator falls due to lack of the device. P cannot use the negligence per se doctrine, because he was not a member of the class of persons whom the statute was designed to protect.) 2. Protection against particular harm: Second, the statute must have been intended to protect against the particular kind of harm that P seeks to recover for. [108 - 109] (Example: A statute requires that when animals are transported, each breed must be kept in a separate pen. D, a ship operator, violates the statute by herding P’s sheep together with other animals. Because there are no pens, the sheep are washed overboard during a storm. P cannot use the negligence per se doctrine, because the statute was obviously intended to protect only against spread of disease, not washing overboard. [Gorris v. Scott, 108]) 3. Excuse of violation: The court is always free to find that the statutory violation was excused, as long as the statute itself does not show that no excuses are permitted. [108 - 110] a. Typical reasons: Some typical reasons for finding D’s violation to be excused are: (1) D was reasonably unaware of the particular occasion for compliance; (2) D made a reasonable and diligent attempt to comply; (3) D was confronted with an emergency not of his own making; or (4) compliance would have involved a greater risk of harm. (Example: A statute requires all brakes to be maintained in good working order. D’s brakes fail, and he can’t stop, so he runs over P. If D can show that he had no way to know that his brakes were not in working order, his violation of the statute would be excused, and the negligence per se doctrine will not apply. [Freund v. DeBuse, 109]) 4. Contributory negligence per se : If the jurisdiction recognizes contributory negligence, D may get the benefit of contributory negligence per se where P violates a statute. [111 - 112] (Example: Cars driven by P and D collide. If P was violating the speed limit, and the jurisdiction recognizes contributory negligence, D can probably use the negligence per se doctrine to establish that P was contributorily negligent.) 5. Compliance not dispositive: The fact that D has fully complied with all applicable safety statutes does not by itself establish that he was not negligent – the finder of fact is always free to conclude that a reasonable person would take precautions beyond those required by statute. [112]

Answer 16

VII. PROCEDURE IN JURY TRIALS A. Burden of proof: In a negligence case (as in almost all tort cases) P bears the "burden of proof." This is actually two distinct burdens: [112 - 113] 1. Burden of production: First, P must come forward with some evidence that P was negligent, that P suffered an injury, that D’s negligence proximately caused the injury, etc. This burden is known as the "burden of production." This burden shifts from P to D, and perhaps back again during the trial. [112 - 113] 2. Burden of persuasion: Second, P bears the "burden of persuasion." This means that as the case goes to the jury, P must convince the jury that it is more probable than not that his injuries are due to D’s negligence. [113] B. Function of judge and jury 1. Judge decides law: The judge decides all questions of law. Most importantly, the judge decides whether reasonable people could differ as to what the facts of the case are; if they could not, he will direct a verdict. [114 - 115] (Example: In a car accident case, if the judge decides that D drove so fast that no reasonable person could believe that D acted non-negligently, he will take this issue away from the jury by saying that they must find D negligent.). (Jusge decides if statute is relevant in negligence cases) 2. Jury decides facts: The jury is the finder of the facts. In a negligence case (assuming that the judge does not direct a full or partial verdict), the jury decides: (a) what really happened; and (2) whether D breached his duty to P in a way that proximately caused P’s injuries. This means that it is the jury that usually decides whether D’s conduct satisfied the "reasonable person" standard. [115]

Answer 17

List Elements, List Defenses, and then Conclude who is liable. If P cannot prove all elements- then "there is no liability in tort" If P can, and there are no good affirmative defenses, then there "is liability in tort" If P can, and there is a good affirmative defense, "there is no liability in tort"

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