DIR Return Create A Forum - Home
---------------------------------------------------------
Kanagaroo Kort
HTML https://kangarookort.createaforum.com
---------------------------------------------------------
*****************************************************
DIR Return to: Torts
*****************************************************
#Post#: 62--------------------------------------------------
Torts outline 4
By: SunsetSailor Date: February 17, 2011, 9:39 pm
---------------------------------------------------------
Torts I
I. Bases of Liability
a.  has burden of proof to show  is guilty of
tort.
b. Intent
i. Subjective
ii. Focus is on what the actor believes the consequences are
substantially certain to result
c. Negligence
i. Objective
ii. Focus is on the outward conduct of  - unreasonably
risky conduct
iii. What would a reasonable person do
d. Strict Liability
II. Intentional interference with Person or Property
a. Intent
i. Intent - the actor desires to cause consequences of his act,
or that he believes that the consequences are substantially
certain to result from it
ii. Act – an external manifestation of the actors will and does
not include any of its results (consequences) even the most
direct, immediate or intended.
1. Acts are not involuntary muscle spasms, convulsions or bodily
movements during sleep
iii. Act is distinguished from consequence
1. the act must be intentionally or substantially certain but,
consequences need not be (A hugs B and breaks B’s neck. A did
not intend to break neck, but A intended to hug. (intended to
touch, but not to harm B – tort has been committed (battery)).
2. Whether  intended to harm does not matter, only
intent to act matters
iv. Levels
1. High likelihood – not intent
2. Substantial certainty – intent
b. Transferred Intent
i. Whenever both the tort intended and the resulting harm fall
within the scope of the old action of trespass:
1. Battery
2. Assault
3. False Imprisonment
4. Trespass to Land
5. Trespass to Chattels
ii. When  intends one of the five and commits any other
one of the five, the intent transfers and  is liable
c. Battery
i. §13 – Battery: Offensive Contact
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 the other or a third person, or an imminent
apprehension of such a contact, and
b. an offensive contact with the person of the other directly or
indirectly results.
ii. §18 - Battery: Harmful Contact
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 the other or a third person, or an imminent
apprehension of such a contact and,
b. a harmful contact with the person of the other directly or
indirectly results.
iii. §19 – Offensive Contact
1. In order that a contact be offensive to a reasonable sense of
personal dignity, it must be one which would offend the ordinary
person and as such one not unduly sensitive as to his personal
dignity. It must, therefore, be a contact which is unwarranted
by the social usages prevalent at the time and place at which it
is inflicted.
– (spitting on someone in public)
2. infringes on ’s actual and apparent wishes to avoid
it
iv. Bodily Contact Required
1.  must respect ’s apparent wishes to avoid
intentional bodily contact (exception – social setting – brushed
past in a crowd)
2. Can touch an intimate extension of ’s person ((Fisher
v. Carrousel Motor Hotel) – ripping plate out of someone’s hand)
3. Not necessary that  is aware of contact when it
occurs
a. Example – kissing  while she is sleeping 
battery
4. Size of the object doesn’t matter
v. Elements
1. Intent
a. Not necessary to desire physical harm. Intent is present if
either:
i. Intended to cause a harmful or offensive bodily contact
ii. Intended to cause an imminent apprehension of harmful or
offensive bodily contact.
2. Harmful or Offensive Contact
vi. If a third person is injured when  tried to hit
another,  is guilty even though he missed the other
d. Assault
i. §21 – Assault
1. An actor is subject to liability to another for assault if
a. He acts intending to cause a harmful or offensive contact
with the person of the other or a third person, or an imminent
apprehension of such a contact, and
b. The other is thereby put in such imminent apprehension
2. An action which is not done with the intention stated in
Subsection (1, a) does not make the actor liable to the other
for an apprehension caused thereby although the act involves an
unreasonable risk or causing it and, therefore, would be
negligent or reckless if the risk threatened bodily harm.
ii. Requirements
1. Intent (either one is sufficient)
a. Intent make apprehension
b. Intent to make contact
iii. Hostility
1. Not required that  bear malice toward , or
intend to harm 
iv. Threat
1. Must be imminent and
2.  has present ability to carry it out
v. Awareness
1. Other must be aware of the imminent danger (cannot jump
behind someone and shoot from behind)
vi. Capability
1.  must be able to effectuate the attempt of
intentional or offensive contact (Western Union v. Hill)
vii. Rule: an assault consists of an unlawful attempt to commit
a battery that was incomplete by some intervening cause.
e. False Imprisonment
i. §35 – False Imprisonment
1. An actor is subject to liability to another for false
imprisonment if
a. He acts intending to confine to other or a third person
within the boundaries fixed by the actor, AND
b. His act directly or indirectly results in such a confinement
of the other AND
c. The other is conscious of the confinement OR is harmed by it.
2. An act which is not done with the intention stated in
subsection (1,a ) does not make the actor liable to the other
for a merely transitory or otherwise harmless confinement,
although the act involves an unreasonable risk or imposing it
and therefore would be negligent or reckless if the risk
threatened bodily harm.
ii. §36 - Confinement
1. Other’s confinement within the boundaries fixed by the actor
must be complete
2. Confinement is complete although there is a reasonable means
of escape, unless the other knows of it
3. Not confinement if prevent direction that someone wants to go
iii. Knowledge
1.  must be aware of actual confinement OR
a. Knowledge of confinement must BE AT THE TIME OF THE
CONFINMENT (Parvi v. City of Kingston)
2. must suffer some actual harm
iv. Example – people are locked in a room but not aware that the
doors are locked. Not false imprisonment until they become
aware that the doors are locked.
f. Intentional Infliction of Mental Distress
i. §46 – Outrageous Conduct Causing Severe Emotional Distress
1. One who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is
subject to liability for such emotional distress, and if bodily
harm to the other results from it, for such bodily harm
2. Where such conduct is directed at a third person, the actor
is subject to liability if he intentionally or recklessly causes
severe emotional distress
a. To a member of such person’s immediate family who is present
at the time, whether or not such distress results in bodily
harm, or
b. To any other person who is present at the time, if such
distress results in bodily harm
Note: conduct must go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in a
civilized community. It is not enough to prove intent or
tortuous or criminal activity, or that it was malice. Does not
extend to mere insults, indignities, threats, annoyances, etc..
ii. Intent (3 types)
1.  desires to cause  emotional distress
2.  knows with substantial certainty that  will
suffer
3.  recklessly disregards the high probabability that
emotional distress will occur
iii. Transferred Intent
1. Generally limited in this tort except,
2.  directs his conduct to a member of ’s family
a.  is present, AND
b. ’s presence is known
iv. Elements
1. intentionally or recklessly
2. causes
3. severe mental distress to another
4. by extreme and outrageous conduct.
g. Trespass to Land
i. §158 – Liability for Intentional Intrusions on Land
1. One is subject to liability to another for trespass,
irrespective of whether he thereby causes harm to any legally
protected interest of the other, if he intentionally
a. enters land in the possession of the other, OR causes a thing
or a third person to do so, OR
b. remains on the land, OR
c. fails to remove from the land a thing which he is under a
duty to remove.
ii. Intent Required
1. Intent to enter the land or to commit the equivalent of the
entry.
2. Cause an entry upon the land by another or by an object
3. Remain upon the land after a privilege to be there has been
terminated
4. Exceed the permitted use of the land
5. Refuse to remove goods or materials left there
iii. May be above or below the surface
1. Example – bullets, mining, utility lines, extend an arm into
airspace
a. Exception – airplanes
i. Not generally a trespass upon the land
b. Must interfere with use and enjoyment of the land, AND
c. Be within the “immediate reaches” of the land
iv. §163 - Intended Intrusions Causing no Harm
1. One who intentionally enters land in the possession of
another is subject to liability to the possessor for a trespass,
although his presence on the land causes no harm to the land,
its possessor, or to any thing or person in whose security the
possessor has a legally protected interest.
v. §164 - Intrusions Under Mistake
1. One who intentionally enters land in the possession of
another is subject to liability to the possessor of the land as
a trespasser, although he acts under a mistaken belief of law or
fact, however reasonable, not induced by the conduct of the
possessor, that he
a. is in possession of the land or entitled to it, OR
b. has the consent of the possessor or of a third person who has
the to give consent on the possessor’s behalf, OR
c. has some other privilege to enter or remain on the land.
h. Trespass to Chattels
i. §217 - Ways of committing Trespass to Chattel
1. A trespass to chattel may be committed by intentionally
a. dispossessing another of the chattel, or
b. using or intermeddling with a chattel in the possession of
another
ii. §218 - Liability to Person in Possession
1. One who commits a trespass to a chattel is subject to
liability to the possessor of the chattel if, but only if,
a. He dispossesses the other of the chattel, OR
b. The chattel is impaired as to its condition, quality, or
value, OR
c. The possessor is deprived of the use of the chattel for a
substantial time, OR
d. Bodily harm is caused to the possessor, OR harm is caused to
some person or thing in which the possessor has a legally
protected interest.
iii. Loss of Possession
1. If  loses possession of the chattel for any time,
recovery is allowed even if the chattel is returned unharmed
a. Example: a car taken for a five minute “joy ride.” A trespass
to chattel has still been committed.
iv. Intent required
1. It is enough that  had an intent to act upon the
property
2. If his interference is substantial enough, he is liable even
though he had no intent to harm OR
3. Even invade another’s interest
v. Not liable if
1. he never intended to touch it at all AND does so accidentally
a. Example – Contractor excavating land and strikes a buried
telephone cable
i. Conversion
i. §222A - What Constitutes Conversion.
1. Conversion is an intentional exercise of dominion or control
over a chattel which so seriously interferes with the right of
another to control it that the actor may justly be required to
pay the other the full value of the chattel.
2. In determining the seriousness of the interference and the
justice of requiring the actor to pay the full value, the
following factors are important:
a. The extent and duration of the actor’s exercise of dominion
or control;
b. The actor’s intent to assert a right in fact inconsistent
with the other’s right of control
c. The actor’s good faith
d. The extent and duration of the resulting interference with
the other’s right of control
e. The harm done to the chattel
f. The inconvenience and expense caused to the other.
ii. Intent
1. Although it is an intentional tort, all that is required is
∆ intent to take possession of the property.
2. Mistake as to ownership will generally not be a defense
iii. Distinguish from Trespass to Chattel
1. The court looks at the six factors outlined above in
determining whether the interference is severe enough to be
conversion or just trespass to chattel.
iv. Ways to Commit Conversion:
1. (a) dispossessing another of a chattel as stated in §§ 221
and 222;
2. (b) destroying or altering a chattel as stated in § 226;
3. (c) using a chattel as stated in §§ 227 and 228;
4. (d) receiving a chattel as stated in §§ 229 and 231;
5. (e) misdelivering a chattel as stated in §§ 234 and 235;
6. (f) refusing to surrender a chattel as stated in §§ 237-241."
7. Acquiring Possession
8. Transfer to a third person
9. Withholding Good  refusing to return goods to their
owner, if the refusal lasts for a substantial period of time
10. Destruction (or fundamentally altering the good).
v. Payment
1. ∆ is liable for the full value of the goods, not just
the value of the use or damage (as in trespass to chattels), but
2. ∆ gets to keep the goods
III. Privileges
a. Privilege cannot exist if tort does not first exist
i. Without tort, there is no privilege
b. Duty, Right, No Right and Privilege
i. Right
1. Gives a potential  a claim enforceable against
another
2. Incorrect – “I have a right to self-defense”
ii. Privilege
1. Exempts a potential  from liability against another
2. Correct - “I have a privilege of self defense”
3. If  exceeds privilege, he has committed a tort
c. Consent
i. §892 - Consent
1. Consent is willingness in fact for conduct to occur. It may
be manifested by action or inaction and need not be communicated
to the actor
2. If words or conduct are reasonably understood by another to
be intended as consent, they constitute apparent consent and are
as effective as consent in fact.
ii. Once privilege is exercised, the tort vanishes - there is no
tort
iii. Defeats the intentional torts (writ of trespass)
1. Battery
2. False Imprisonment
3. Trespass to land
4. Trespass to Chattels
5. Conversion
iv. Implied Consent
1. Conduct
2. Custom
3. Circumstances
4. Relationship between the parties
v. Objective Manifestations
1. If reasonably seems to one in ∆’s position that
 consented, then there is consent regardless of
’s subjective state of mind.
2. Question is whether  reasonably believed that
’s words or conduct reflected a genuine consent
3. Example – woman presents arm to doctor in a line to get a
vaccination shot, doc gives shot (O’Brien v. Cunard)
vi. Informed Consent
1. Some s because of their relationship with ,
are under an obligation to provide appropriate information to
 to permit an informed consent and are subject to
liability if they fail to do so and harm results
vii. Consent to Conduct, not Harm
1.  who has consented or apparently consented to conduct
cannot recover for damages for harm resulting from that conduct,
even though  did not expect harm to result and did not
consent to harm
2. Consent to the particular conduct is effective although there
is no consent to the invasion that results from it, and the
person consenting does not anticipate and could not reasonably
anticipate that the invasion would follow.
viii. Emergency
1. Generally emergency is a substitute for consent
2. Scope of Consent
a. If ∆ goes substantially beyond scope of consent, he/she
is not privileged.
b. Example -- ∏ consents to an operation on her right ear,
but doctor, while ∏ is under anesthetic performs surgery
on her left ear (Mohr v. Williams).
3. If an emergency situation, however, the surgery may be
extended beyond the scope.
d. Invalid Consent
i. Incapacity
1. Minors, intoxicated persons, insane persons and others
similarly situated may lack capacity to give actual consent
2. Known to 
a. Professed consent is not enough to bar ’s claim if
 lacked capacity to give consent and  knew or
should have known of ’s capacity
3. Unknown to 
a. Incapacity negates actual consent but when  gives the
appearance of capacity and the appearance of consent, 
is not acting tortiously at all when he acts in accord with the
appearance.
ii. Mistake
1. Consent is ineffective to bar ’s claim if it is
induced by
a. misrepresentation OR
b. given under a material mistake of which  is or should
be aware, OR
c. by fraud
iii. Under Duress or Coercion
1. Duress is a threat of unlawful conduct that is intended to
and does prevent  from exercising free will or choice
e. Self Defense
i. §63 – Self-defense by force not threatening death or serious
bodily harm.
1. An actor is privileged to use reasonable force, not intended
or likely to cause death or serious bodily harm, to defend
himself against unprivileged harmful or offensive contact or
other bodily harm which he reasonably believes that another is
about to inflict intentionally upon him.
2. Self-Defense is privileged under the condition stated in
subsection (1), although the actor correctly or reasonably
believes that he can avoid the necessity of so defending
himself,
a. by retreating or otherwise giving up a right or privilege, or
b. by complying with a command with which the actor is under no
duty to comply or which the other is not privileged to enforce
by means threatened.
ii. Apparent Necessity
1.  is privileged to use reasonable force to defend
himself against unprivileged acts that he reasonably believes
will cause him bodily harm or offensive bodily contact
iii. Burden of Proof
1. Affirmative defense -  ordinarily has the burden of
proof
a. Exception – police officer
iv. Imminent danger
1.  need not await the first blow before asserting
himself
2. BUT, cannot be invoked to justify a preemptive strike against
someone who threatens no immediate harm
v. Reasonable Force
1. Depends upon harm threatened and upon the harm threatened and
in some measure on the whole circumstance of the case, including
the alternatives available
2. Deadly force
a. Only justified when  reasonably believes to be
attacked by such a force
vi. Excessive Force
1.  is only liable for the force that exceeded his
privilege, not for the entire force used
2. If  has caused an indivisible harm, one that cannot
practically be separated, he is liable for the entire harm
vii. Retreat
1.  may defend himself even if retreat is available
2. Exception -  not required to retreat when in his own
home, MAY USE DEADLY FORCE INSTEAD
f. Defense of Others
i. May use reasonable force to defend another person against
attack
ii.  “steps into” others shoes when defending – has same
privilege as they would have
iii. Liable for harm to third person only if he is negligent in
causing harm to the bystander
g. Defense of Property
i. §77 - Defense of Possession by Force Not Threatening Death or
Serious Bodily Harm
1. An actor is privileged to use reasonable force, not intended
or likely to cause death or serious bodily harm, to prevent or
terminate another’s intrusion upon the actor’s land or chattels,
if
a. The intrusion is not privileged or the other intentionally or
negligently causes the actor to believe that it is not
privileged, AND
b. the actor reasonably believes that the intrusion can be
prevented or terminated only by force used, AND
c. The actor has first requested the other to desist and the
other has disregarded the request, or the actor reasonably
believes that a request will be useless or that substantial harm
will be done before it can be made.
ii. §84 – Use of Mechanical Device Not Threatening Death or
Serious Bodily Harm
1. The actor is so far privileged to employ, for the purpose of
protecting his possession of land or chattels from intrusion, a
device not intended or likely to cause death or serious bodily
harm that he is not liable for bodily harm done thereby to a
deliberate intruder, if
a. the use of such a device is reasonably necessary to protect
the land or chattels from intrusion, AND
b. the use of the particular device is reasonable under the
circumstances, AND
c. the device is one customarily used for such a purpose, or
reasonable care is taken to make its use known to probable
intruders
iii. §85 – Use of Mechanical Device Threatening Death or Serious
Bodily Harm
1. The actor is so far privileged to use a device intended or
likely to cause serious bodily harm or death for the purpose of
protecting his land or chattels from intrusion that he is not
liable for the serious bodily harm or death thereby caused to an
intruder whose intrusion is, in fact, such that the actor, were
he present, would be privileged to prevent or terminate it by
the intentional infliction of such harm
iv. Privileged to use reasonable force when necessary to defend
v. Reasonable Force
1.  must limit force applied to meet the apparent need
for it
2. If  uses excessive force, he has exceeded his
privilege and will be liable for harms caused by the excessive
force
3. Defined as the least force that will be effective
vi. Intruder’s Superior Privilege
1. Intruder’s privilege to enter or remain in cases if necessity
to save herself from death or grave bodily harm will be superior
to the possessor’s privilege at least for a reasonable period of
time
vii. Deadly Traps
1. There is no independent privilege to protect property
interests by deadly traps
2. Policy - human life and limb are more important than
property interests
3. Warning signs may or may not exonerate  from
liability
viii. Trespassers
1. Landowner’s are generally not required to exercise care for
the benefit of trespassers
2. HOWEVER, they may not willfully injure or entrap them
a. If they do, they are liable for the harm done
h. Recovery of Property
i. Privilege to defend one’s possession of chattels by
reasonable force does not generally include a privilege to
recover possession by force or threats of force
1. Once possession is clearly lost, owner must resort ti the
courts to recover the chattel if peaceable recovery is not
possible
ii. Fresh Pursuit
1. Momentary loss of control during a scuffle is not a loss of
possession as long as the parties are still contending for the
chattel
2. Original possessor may even use reasonable force if needed to
recover the chattel in the course of or at the end of fresh
pursuit
iii. Shopkeeper’s Privilege
1. A store owner may detain a person suspected of shoplifting to
verify a suspicion of theft.
i. Necessity
i. §196 – Public Necessity
1. One is privileged to enter land in the possession of another
if it is, or if the actor reasonably believes it to be,
necessary for the purpose of averting an imminent public
disaster
a. Example – Blowing up someone’s house to prevent fire
spreading throughout the city (Surocco v. Geary)
ii. §197 - Private Necessity
1. One is privileged to enter land in the possession of another
if it is or reasonably appears to be necessary to prevent harm
to
a. The actor, or his land or chattels, or
b. The other or a third person, or the land or chattels of
either, unless the actor knows or has reason to know that the
one for whose benefit he enters is unwilling that he shall take
such action
2. Where the entry is for the benefit of the actor or a third
person, he is subject to liability for any harm done in the
exercise of the privilege stated in (1) to any legally
protected interest of the possessor in the land or connected
with it, except where the threat of harm to avert which the
entry is made is caused by the tortious conduct or contributory
negligence of the possessor
3. Privilege is incomplete – other must pay for the damages
caused by exercise of private necessity privilege
iii. May provide a privilege to enter land of another
1. Example – One puts a boat ashore on s land to avoid serious
risk of life in a storm
IV. Negligence
a. Negligence Formula
i. Elements – all 4 are required for liability
1. Duty to use reasonable care
2. Breach of the duty
3. Causation – close causal relationship between the conduct and
the resulting injury
a. Causation in Fact
i. ’s injury is caused by ’s conduct if, but for
’s conduct,  would not have suffered the injury
b. Proximate Cause
i. At bottom that  must persuade the court or jury that
’s conduct not only in fact caused ’s harm but
that it was a reasonably significant cause
4. Damage resulting from conduct of 
b. Standard of Care
i. Reasonable Prudent Person
1. Negligent if  fails to act as a reasonably prudent
person under the circumstances (or failure to act)
a. Neither more nor less
2. If no standard has been established by legislative enactment,
jury decides standard within the instructions given by the court
3. Objective standard
a. Conduct that creates or fails to avoid unreasonable risks of
foreseeable harm to others
b. State of mind is not important (opposite of intent)
4. Methods for determining risks acceptable to a reasonable
person
a. Mental and physical traits
b. May sidestep general standards by adopting specific rules
about specific kinds of conduct (speeding  shows prima
facie negligence)
c. Cost-benefit analysis
5. Circumstances
a.  must use care commensurate with the known or
reasonably foreseeable danger
b. Reasonable person will exercise care commensurate with the
circumstances (slowing down while riving near a group of playing
children)
c. If there is an emergency, the reasonable person may be found
not negligent even though in other conditions he would be
6. Physically disabled persons
a. Unsighted person is not negligent merely because by going out
into the world
b. Must still act as a reasonable person with those limitations
in mind
c. To the extent that a reasonable person with similar
limitations would do so, a disabled person must adjust for
limitations by using other senses or by altering conduct to
minimize the risks created by the disability
7. Mentally disabled persons
a. Insane adults and others suffering mental disability are
liable both for their intentional and negligent torts
b. If ’s conduct carried out by sane or sober people,
would count as negligence,  cannot escape liability that
he behaved as a reasonable and prudent person afflicted with
insanity or drunkenness
c. Between victim and insane ,  will pay for
damages inflicted
8. Knowledge possessed by reasonable person
a. Elemental knowledge
i. Fire burns
ii. Humans
iii. Animals
iv. Forces of nature
b. Not expected to have specialized knowledge
c. Changes over time and varies over place
d. Would always use the information that he has acquired, or
should have acquired in particular circumstances
i. Example -  knows that car’s brakes don’t work; must
use info
9. Superior knowledge
a. It is right to tell a jury that a reasonable person will use
the relevant special knowledge he has, but not right to tell the
jury that he is held to a higher standard of care
10. Children
a. Not subjected to reasonable person standard
b. Subjective standard
i. Child is required to conduct himself as a minor of his own
age, intelligence and experience in similar circumstances
c. Exception
i. Operating a motorized vehicle (boat, plane, snowmobile, etc.)
11. Emergency
a. Is unexpected by definition
i. If danger is foreseeable and can be prepared for, there is no
emergency
b. Actor is confronted with a sudden and unforeseeable emergency
not of his own making, the jury is permitted to consider the
emergency as one of the circumstances relevant in determining
whether the actor behaved reasonably
ii. Professional
Unless he represents that he has greater or less skill or
knowledge, one who undertakes to render services in the practice
of a profession or trade is required to exercise the skill and
knowledge normally possessed by members of that profession or
trade in good standing in similar communities
Heath v. Swift Wings (pilot must be held to an objective
standard, not looking at his experience or training but other
pilots)
Hodges v. Carter (Attorneys must act in good faith using good
judgment)
EXPERT TESTIMONY FOR MEDICAL MALPRACTISE
Is required unless the negligence is so grossly apparent a
layperson would have no difficulty recognizing it
Not sufficient that the expert says he himself would not
personally follow the ∆’s actions, he must testify that
the practice was not recognized as valid (Boyce v. Brown-case of
screw in ankle)
Must come from a similar community in similar circumstances
Board certified physicians, medical labs, and other health care
providers are held to an national standard of care. (Locality
rule: dated, now uniform education system for Drs)
Scot v. Bradford (minority decision using Canterbury rule)
-Patient based, subjective rule of informing each patient
everything he/she needs to know
TO SUE FOR MALPRACTISE MUST ALLEGE AND PROVE
∆ physician failed to inform him adequately of a material
risk before securing his consent to the proposed treatment
if he had been informed of the risks he would not have consented
to the treatment
the adverse consequences that were not made known did in fact
occur and he was injured as a result of submitting to the
treatment
DEFENSE
∏ knew of the risks
full disclosure would be detrimental to a patient’s best
interests
emergency existed requiring prompt treatment
Moore v. The Regents of the Univ. of CA(doctor who used patients
cells for research, A physician has a duty to disclose to a
patient intended research connected to the patient’s treatment)
THE PROFESSIONAL
-fiduciary duty: treat the other person like they were yourself,
your interests should not be separate but co-joined
c. Rules of Law
i. Forbids any assessment of the evidence to determine whether
there was negligence in the particular case
The court may adopt as the standard conduct of a reasonable man
the requirements of a legislative enactment or an administrative
regulation whose purpose is found to be exclusively or in part
to protect a class of persons which includes the one whose
interest is invaded, and
to protect the particular interest which is invaded, and
the protect that interest against the kind of harm which has
resulted, and
to protect that interest against the particular hazard from
which the harm results
Osborne v. McMasters (pharmacy case, When a statute imposes a
legal duty, violation of the statute constitutes negligence)
Martin v. Herzog (To omit, willfully or heedlessly the
safeguards prescribed by law for the benefit of another is to
fall short of the standard of diligence which we are under a
duty to conform)
Excused violation
An excused violation of a legislative enactment or an
administrative regulation is not negligence.
Unless the enactment or regulation is construed not to permit
such excuse, its violation is excused when.
The violation is reasonable b/c of the actor’s incapacity
He neither knows or should know of the occasion for compliance
He is unable after reasonable diligence or care to comply
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
d. Violation of Statute
i. Applicability of Statute
1. Negligence per se
a. Courts are allowed to adopt standards or rules of conduct
from a statute and apply them to a tort law case
b. Violation of the statute is negligence in itself if it causes
the kind of harm the statute was intended to avoid and to a
class of persons the statute was intended to protect
c. Violation conclusively shows negligence
d. Applied in motor vehicle cases (speeding, improper turns,
etc.)
2. Not negligence per se unless the statute is construed to
protect (2 restrictions):
a. against the type of risk or the type of harm that actually
occurred
b. a class of people that includes 
i. Difficult to determine what class is protected (Argue)
3. If both do not exist, there is no negligence per se
a. Example – If  suffers the type of harm covered by the
statute, she cannot claim negligence per se unless she is within
the class of people that the statute was intended to protect
ii. Effect of Statute
1. Imposes a specific duty or standard of care that would not
exist at common law but does not otherwise change the rules for
negligence, causation, defenses and procedures, OR
2. By express terms or by implication, this kind of statute
creates a new claim or cause of action not recognized at common
law. Instead of merely adding a specific duty, it creates a set
of rules about conduct or about adjudication, OR
3. Create new defenses to common law tort claims or enact lower
standard of care for some activities
e. Proof of Negligence
i. Court and Jury: Circumstantial Negligence
1. Jury
a. Determination of the facts
i. Determination of truth of ’s evidence
ii. If not convinced, mist find facts in favor of , even
if he introduces no evidence
iii. Determine credibility of witnesses
b. Determine whether  was negligent
i. Was ’s conduct the legal cause of ’s harm
ii. Amount of damages
c. Did ’s conduct amounted to the negligent creation of
an unreasonable risk
i. Was ’s conduct was a legal cause of ’s harm,
which is usually to say whether it created a risk of the general
kind of harm  suffered
2. Judge
a. Determine whether  was under a duty of care and if so
what standard of care applied
b. Sufficiency of evidence
i. Direct a verdict – reasonable people would not differ
1. Violation of statute
2. Overwhelming evidence
ii. Send to jury – reasonable people could differ
c. Forms of sufficiency
i.  does not prove facts
ii.  proves facts, but not negligence
d. New trial
i. Judge believes that jury’s verdict was against the weight of
the evidence
e. Evidence
i. Determine what evidence is admitted for jury’s consideration
f. Instructions
i. Instruct jury on legal rules
ii. Error could lead to reversal and new trial
3. Evidence
a.  has burden of proving facts to show each element of
negligence (duty, breach, causation and damages)
i. Produce evidence from which reasonable jurors could find that
the elements of ’s case were proven by a preponderance
of the evidence
ii. Persuade trier of fact that the elements of her case have
been proven
iii. Preponderance  greater than 50% likely
iv. Must be specific – not “ was negligent”
b.  has burden of proving facts to support affirmative
defenses (contributory negligence or comparative fault or the
statute of limitations)
4. Circumstantial evidence
a. Evidence of a fact that tends to establish and thus to permit
an inference of another fact
b. Does not create a “presumption” or shift the weight of
persuasion
c. Good lawyers must pile an inference upon an inference
ii. Res Ipsa Loquitur – “the thing speaks for itself”
1. ’s injury and surrounding facts by themselves can
show negligence
a. Even though  is unable to prove any specific act that
was unreasonably dangerous
2. If  owes  a duty of care, the jury is
permitted to infer that  was negligent in some
unspecified way when based on the evidence, experience
indicates:
a. The injury was probably the result of negligence, even though
the exact nature of that negligence is unknown
b. It was probably  who was the negligent person (in
control of the instrumentality)
3. Cannot apply unless:
a.  was in exclusive control of the harm-causing
instrumentality at some relevant time
b.  shows that she was not responsible for her own
injury
c. negligence was more probable than not the cause of the injury
4. Expert testimony
a. Can be used to establish negligence
5. Instrumentality does not have to be known (’s who are
anesthetized)
6. Exclusive control
a.  is in control of the instrumentality –  is
in a position to harm ,  is not in a position to
harm 
b. Show by eliminating others or show that  was
responsible for all probable causes of the injury
7. Public access
a. The fact that the public has access to the instrument, does
not necessarily exclude manufacturer from liability
i. Example – TV explodes in living room – manufacturer is liable
under res ipsa
b.  must be able to exclude himself from liability
8. Multiple s – special liabilities
a. Sometimes doctrine is used to “smoke out” guilty party
b. Hold all liable and force them to reveal true guilty party
iii. Customary practice
1. Specific practices that are widely used or accepted in a
relevant community or culture
2. typically NOT the standard of care – remains that of a
reasonable and prudent person
3. Sporting events
a. Violation of the rules, not enough to show negligence –
violation of the rules is customary
V. Causation in Fact
a. Must use term, “a cause” of harm, NOT “the cause” of harm
b.  must prove that not only he suffered harm sometime
after ’s negligent act occurred but that the harm was
caused in fact by ’s conduct (more probably than not)
c. Four causation problems
i. Scientific connection
1. prove what is not commonly known
ii. Who is the cause?
1.  is injured but cannot prove who
iii. Would safe behavior have avoided injury?
iv. What harm was caused?
d. Causation
i. Did ’s negligent conduct cause ’s harm or
not?
ii. Scope of ’s legal responsibility for negligent
conduct that has in fact caused the harm
1. Was the harm  suffered the same kind  risked
by his negligence
e. But-For Test
i. ’s conduct is a cause in fact of ’s harm if,
but for ’s conduct, that harm would not have occurred
ii. If  would have suffered that same harm had 
not acted negligently, ’s conduct is not a cause in fact
of the harm
f. Two or more persons as causes
i. Apportionment
1. Responsible for a share of ’s loss
2. Causal
a. One  caused a particular loss and should be liable
for no more
3. Comparative fault
a. Each  is held liable for a percentage of ’s
damages in proportion to that ’s percentage share of
fault
ii. Joint and several liability
1. Apportionment not possible
2.  may sue each tortfeasor separately
3.  may sue both tortfeasors in a single action
4.  may obtain a judgment against one and enforce it
against the other
5.  may not actually collect more than full compensation
iii. Courts drop the but-for test;  would not be able to
recover anything since each  would say they were not
guilty
1. Use substantial factor test instead
a. All s who are substantial factors in the harm are
causes in fact
b. Two fires are both causes of ’s harm, provided only
that each fire was sufficient standing alone to cause the same
harm
c. Policy – duplicative causes are still causes
d. Exception – if one fire burns ’s house to the ground
before second fire gets there, 2nd person is not liable
iv. Multiple tortfeasors – single injury
1. Burden shifts to the tortfeasors to show that 
suffered separable injuries and the injuries can be apportioned
– each  is treated as the cause of the entire
indivisible injury
2. Auto accidents – (2s, 1 )
a.  has a broken nose and a broken toe – impossible to
tell which driver caused which injury
b. Both s are treated as causes of ’s harm as a
whole
3. Medical Malpractice (2 docs – can’t tell)
v. Preexisting disability
1.  causes the death of a person who is already dying
a.  is liable but only for the extent that he hastens it
i. Damages - % of damages of the loss he caused (40% chance of
living -  took all of it away)
b. Some courts -  is liable for all damage
2. Policy -  goes to doc to maximize chances of her
survival and  doc is under a duty to do so
g. Proof of Causation
h. Problems in Determining Which Party Caused the Harm
i. Alternative causation
1. Both s are guilty of negligence – cannot tell which
one (Summers v. Tice)
a. Burden shifts to each  to show that he was not the
cause – if they can’t, they are both liable
ii. Market Share Liability
1. Substitute for joint and severable liability
a. Each  is only liable for a percentage represented by
that ’s share of the market in a harmful product
b. Example – DES drug – each manf liable for market share at the
time  took drug
VI. Proximate or Legal Cause
a. Intro
i. Used to limit ’s liability to the kinds of harm he
risked by his negligent conduct
1. Used to draw line of liability
ii.  is free to ignore risks (foreseeable harms) that a
reasonable person would ignore
1. If scope of liability were not limited to the scope of the
risks,  would not be free to ignore small risks
iii. It is not about causation at all but about the appropriate
scope of responsibility
iv. First  negligence and cause in fact must be proven
v. Negligent  is liable for all the general kinds of
harms he foreseeably risked by his negligent conduct and to the
class of persons he put at risk by that conduct
vi. ’s misconduct is not too remote for liability merely
because time or distance separates ’s act from
’s harm  turns on reasonable foreseeability
vii.  must have been reasonably able to foresee the kind
of harm that was actually suffered by 
viii.  is not liable merely because he could foresee the
harm; the harm must be the kind that he should have avoided by
acting more carefully
ix. Harm suffered by  must have been within the scope of
the risk  negligently created
x. Proximate cause issues must always be determined by the jury
xi. Issue of foreseeability or scope of the risk, little to do
with causation
xii. Duty of care – decided by judges
xiii. Duty v. Proximate Cause (Palsgraf)
1. Duty – Cardozo
a.  is not liable to  for harm if harm was
unforeseeable
b. Since the unreasonable risk created by  was a risk to
the passenger and a very small circle of persons who might have
been close enough if he (or package) fell, it created no
foreseeable risk to  -  is not liable
i. “The orbit of danger as disclosed to the eye of reasonable
vigilance” marked the scope of liability
2. Proximate Cause – Andrews
a.  owes a duty of care to the world and is liable for
any harm that occurs as a result of ’s negligence
xiv. Negligent  is only liable for harm of the same
general kind that they should have reasonably foreseen and
should have acted to avoid
xv. Wagon Mound
1. If  negligently created a risk of harm A, but harm B
resulted instead,  would not be liable for harm B
xvi. Wagon Mound II
1. If the risk of harm A had been foreseeable,  would
have to balance the risks and utilities to determine action
xvii. Wagon Mound v. Palsgraf
1. Same general thrust
2. Wagon Mound – risk of certain type of harm
3. Palsgraf – risk to a certain class of persons
xviii. Polemis
1.  is liable for all harms directly caused, whether
they were foreseeable or not
a. Eggshell scull rule -  must take  as he
finds him, no defense to say you didn’t know that that type of
harm was going to occur
xix. Unforeseeable Consequences
xx. Whether  should have foreseen the kind of harm that
in fact resulted and whether  was in the class of
persons to whom such harms might foreseeably befall
xxi.  is not a proximate cause of, and not liable for
injuries that were unforeseeable
xxii. ’s liability is limited to those harms he risked
by his negligence so that he escapes liability altogether for
those harms that were not reasonably foreseeable
b. Scope of Risk
i. Scope of ’s liability is determined by the scope of
risk he negligently created
ii. Point of limiting ’s liability under proximate cause
rules is to make ’s liability coextensive with his
negligence
1.  is not liable even for foreseeable harms if he was
not negligent in failing to minimize those harms
c. Extent of Harm
i. Foreseeability or Risk rule
1.  is subject to liability if he could reasonably
foresee the nature of the harm done, even if the total amount of
harm turned out to be unforeseeably large
ii. Eggshell Scull Rule
1.  is entitled to recover for all the harm done by
’s negligent act, even though a fractured scull is not
foreseeable
2.  takes  as he finds him
3.  is liable for aggravation of preexisting injuries or
conditions
4. Only comes into play when ’s conduct would put normal
people at risk
a.  need only exercise ordinary care to prevent
foreseeable harms
iii. Manner of Harm
1.  is liable for harms he negligently caused so long as
a reasonable person in his position should have recognized or
foreseen the general kind of harm  suffered
2.  is not ordinarily relieved merely because the manner
of injury or its details were unforeseeable
3. Derdiarian
a.  was struck by an oncoming car even though it was not
foreseeable that the driver would lose control because he had a
seizure
b.  was liable because the manner in which  was
injured didn’t matter – there was no adequate protection to
prevent foreseeable harm
iv. Manner of Harm vs. Intervening Act
1. Manner of Harm
a.  cannot avoid liability merely because  could
not reasonably have foreseen the manner in which injury comes
about
2. Intervening Act
a.  will not be liable if the injury comes about through
an unforeseeable intervening cause
3. Resolving the Conflict
a. Intervening causes are nit superseding causes if 
should have foreseen and avoided the general type of harm that
resulted, even though the intervening causes were themselves
unforeseeable
b. May hold that an intervening cause is foreseeable if it
represents a general type of foreseeable intervention, even
though it could not have been specifically anticipated
d. Intervening Causes
i. Intervening Cause
1. a new cause that comes into play after ’s negligent
conduct
2. ’s original negligence is still one of the proximate
causes of harm if ’s conduct led to ’s injury in
a continuous sequence
3. If the intervening force is in operation at the time 
acted, it is not an intervening cause at all
a. Example -  sets a fire when the wind is blowing, he
cannot avoid liability when the wind carries the fire to
’s house
ii. Superceding cause
1. If a second person or a new force unforeseeably intervenes to
trigger ’s injury after ’s act is complete,
responsibility falls on second person
2. Relieve  liability not merely because a new cause
intervened but rather that the risk represented is not one that
 negligently created
3. If intervening cause is the only proximate cause because it
is the efficient or immediate cause it is a superceding cause
and  is not liable
4. Intervening cause does not supersede ’s negligence
when it reflects the same general kind of risk which rendered
 negligent
iii. Foreseeable Intervening Causes
1. If the intervening cause itself is part of the risk
negligently created by , or if it is reasonably
foreseeable at the time of ’s negligent conduct – NOT
SUPERSEDING
2. Was the intervening cause foreseeable at the time of
’s negligent conduct, OR
3. Whether the injury is within the scope of the risk created by

4. If an intervening act is not reasonably foreseeable, then the
intervening event is a superseding cause and  as
original actor is relieved of liability
iv. Forces of Nature
1.  who acts in the presence of a natural force (high
wind) cannot say that wind was intervening cause; cannot
intervene if it is already in operation when  acts
2.  who can reasonably be expected to foresee and act
upon the danger of a natural force is negligent of he fails to
take that force into account
3.  who cannot reasonably be expected to foresee that a
dangerous natural force will appear is usually not negligent at
all
a. If no flood foreseeable,  not negligent for failing
to sandbag the river
v. Intervening Negligent Acts
1. ’s responsibility for negligence is not ordinarily
superseded by an intervening cause if he could foresee such an
intervening cause or a similar one
2. Intervening negligent acts seldom count as superseding causes
3. Both negligent original  and intervening  are
both liable for the harm they together inflicted under the rules
for joint and several liability or comparative fault
4. Intervening causes which lie within the scope of the
foreseeable risk are not superseding causes which relieve the
initial tortfeasor from duty
vi. Unforeseeable Intervening Acts
1. Injury outside the risk
a. Intervening act is regarded as a superseding cause when it is
outside the scope of the risk  negligently created
b. If the intervening act itself is unforeseeable, then it may
become a superseding cause
2. Termination of the Risk
a.  is only liable for his negligent conduct; after risk
has “terminated”  is not liable for harm that occurs
later
e. Public Policy
#Post#: 82--------------------------------------------------
Re: Torts outline 4
By: Deanndoll Date: April 8, 2015, 11:10 pm
---------------------------------------------------------
I agree with your idea.
#Post#: 132--------------------------------------------------
Re: Torts outline 4
By: Omagadai Date: July 4, 2018, 5:49 am
---------------------------------------------------------
I got the knowledge. From reading your post.
#Post#: 136--------------------------------------------------
Re: Torts outline 4
By: paovaree Date: November 6, 2018, 3:32 am
---------------------------------------------------------
This review is the best.
#Post#: 155--------------------------------------------------
Re: Torts outline 4
By: Peerapong Date: August 4, 2019, 11:18 pm
---------------------------------------------------------
These links work very well. I am also looking for
*****************************************************