I.

Battery 1. Intentional Tort of Battery 1. Vosburg A defendant in an action for battery is liable for damages arising from unforeseen injuries. a. The intention to do harm is the essence of the wrongful act. The wrongdoer is liable for all injuries resulting directly from the wrongful act whether or not they were foreseeable. Vosburg must show either that the intention was unlawful or that Putney is at fault. If the act is unlawful, the intention is unlawful. The court ruled that in this case the act was unlawful since it took place during class rather than on the playground and Putney was liable for all personal injuries sustained as a consequence of his wrongful act. 2. Garratt In regards to the intentional tort of battery, the element of intent is satisfied if the defendant knows with a substantial certainty that his act will result in a harmful or offensive contact. a. A five year old child can be liable for an intentional tort. 3. Mohr When a doctor obtains a patients specific consent for a particular operation he may not perform another operation on the patient without her consent. A patients consent is implied when an emergency situation arises. However, this does not allow the doctor a free license to attempt to remedy all problems found that are not life threatening. The court held that in this case, there was no evidence that the condition of the plaintiffs left ear presented a serious or life threatening situation. a. Even though there was no showing that he had a wrongful intent or that he had been negligent, Williams was still liable for battery. The court held that it was not relevant that the operation was successful. b. Regarding damages, the court held that damages would depend on the character and nature of the injury inflicted and that the beneficial nature of the operation and Williamss good faith must also be taken into consideration. ii. Burden of proof is on the plaintiff, as if to say, the plaintiff says I was shorted by this situation, please help me to deal with this by re-dealing the chips, so that I may be compensated for the short hand I was given 2. Battery a tort intended to protect peoples bodily integrity from unlawful or unauthorized touching. Every person has a right to complete immunity of his person from physical interference of others i. Act 1. Must be violational (not reflexive, like leg kicking after being tapped on the knee) 2. Contact a battery always involves touching or contact

3. The act could be, to do something that causes a person to be touched (ie: moving a chair when someone is sitting down) 4. For purposes of a battery, anything connected to the plaintiffs person is viewed as part of the plaintiffs person 5. Harmful or Offensive Contact whether any given contact is to be construed as harmful or offensive is judged by whether it would be considered harmful or offensive by a reasonable person of ordinary sensibilities. Contact is deemed offensive if the plaintiff has not expressly or impliedly consented to it. ii. Intent a battery occurs if the plaintiff shows that an intention was unlawful (without license) 1. Intention to do harm certainly satisfies this element, as does malice 2. Intention being unlawful satisfies this element, and unlawful means, violation of the order and decorum of the school or place of occurrence 3. The intent element is met if the defendant has knowledge to a substantial certainty that harmful bodily contact will occur; this is a subjective inquiry about what the defendant actually knew 4. A battery may occur even if the defendant intended to help the plaintiff iii. Causation 1. Actual Cause the plaintiff must show that but for the defendants act he would not have been injured when he was, in the way that he was. The plaintiff must show that the intention was unlawful, or that the defendant is at fault 2. Proximate Cause in tort the wrongdoer (defendant) is liable for all injuries resulting directly from the wrongful act, whether the extent of the harm could or could not have been foreseen by him (eggshell skull rule) 3. The defendant is liable not only for direct contact, but also for indirect contact; ie) it is sufficient if one sets in motion a force that brings about harmful or offensive contact to the plaintiffs person iv. Damage some legally cognizable harm must occur 3. Affirmative Defense of Consent i. Express Consent must be specific 1. By the patient ie: signing the consent form before surgery 2. By an authorized agent ie: only permissible if consent was given by the patient to the third party ii. Implied Consent occurs when a situation is life threatening 1. Defendant may not be held liable in cases of providing to an unconscious person emergency medical or surgical treatment as might reasonably be necessary for the preservation of life or limb 2. Defendant may not be held liable in situations of implied license of the playgrounds if defendant is free from malice, wantonness,

or negligence, and intends no harm to plaintiff note factual issues may likely arise about when the implied license is exceeded II. Negligence 1. Negligence Cause of Action / Prima Facie Case:

Identify the act(s) and/or omission(s) Duty (to be discussed in detail later in semester) - generally, if one undertakes to act, one must do so with due care the existence of a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury Breach breach of that duty by defendant Actual Cause but for the act or omission listed above, would the plaintiff have suffered this damage? the breach of duty by the defendant must be the actual and proximate cause of the plaintiffs injury Proximate Cause (also called Scope of Liability; sometimes called Scope of Responsibility) this is a limiting factor that seldom comes into play - for now, just skip over it Damage there must be some legally cognizable injury, like physical harm to the body or damage/destruction of property Affirmative Defenses 1) Plaintiffs Fault - plaintiff was careless (negligent) about his or her own safety in other words, he or she breached a duty to himself - the same standard is used to assess plaintiffs behavior as is used to assess defendants behavior 2. The basic concepts i. Cause must be linked to damage identify that the act or omission lead to the damage ii. Brown v. Kendall proceed with caution, maybe even hesitance (action with care) iii. When we do things we have a duty to do them with reasonable (ordinary, prudent) care iv. Learnedhand formula 1. B < PL = negligence 2. B > PL negligence a. B=burden i. human cost loss of aesthetic value ii. broader social costs b. P=probability c. L=harm(liability)

v. Reasonable Person 1. If reasonable persons effort < defendant negligence 2. If reasonable persons effort > defendant = negligence 3. The standard is ordinary/prudent care: what should he or she have done or known? (should signifies negligence) 4. Reasonable person is aware of customs and laws, has a standard that may change with time, as the laws advance or change. The standard doesnt change, the technology changes 5. Visible, provable, physical disabilities are usually taken into account 6. Certain defendants owe certain special care to certain plaintiffs 7. People with mental, physical, and education training are held to a higher standard vi. Acts/Omissions 1. Acts are slightly preferred to omissions, so when you are the plaintiffs counsel, try to state everything the defendant does as an act, instead of an omission vii. Goals of Tort Law 1. Compensations passing costs on 2. Deterrence punishment, but not too much, not overdeterrance 3. Proof of Negligence Breach (the first line of the breach analysis is a repetition of the scope) 1. Plaintiff must prove three things, given that the standard is what a reasonable person would have done a. What exactly the reasonable person would have done in the situation what should have been done b. What did the defendant(s) actually do what was done c. And so, this defendant was negligent (burden is on the plaintiff to get the jury to this conclusion) ergo negligence 2. Plaintiff has the burden of proof in establishing defendants fault, defendant has the burden of proof in establishing plaintiffs fault (was plaintiff negligent) they need to prove the three things above 3. Pokura v. Wabash Railway Co. a. Majority rule = illustrations such as these bear witness to the need for caution in framing b. Minority rule = it cannot be said that people have to get out of their cars i. Evidence of Custom: (when talking about custom outside of breach use the word expectedness) c. A custom is an accepted practice or usage by people within the same calling or field as the defendant that is well defined and not necessarily universal. These add up to 3 components: i. Well defined (but not necessarily universal)

ii. Accepted, used iii. By people in the same field or profession d. Can be good because : i. Shows the jury what the standard of care is, guides them in common sense ii. Shows the jury the expectations of society, and therefore, the expectations of the plaintiff iii. Shows the jury what others in the defendants field of work would have done e. Custom can be used as defendants rebuttal to plaintiffs prima facie case ii. Role of Statutes 1. Negligence per se a. negligence established as a matter of law, so that breach of the duty is not a jury questions b. use of a statute to particularize the standard of care, also applicable to regulations and orders enacted by administrative authorities c. negligence due to the violation of a law meant to protect the public, such as a speed limit or building code. Unlike ordinary negligence, a plaintiff alleging negligence per se need not prove that a reasonable person should have acted differently the conduct is automatically considered negligent, and the focus of the suit will be over whether it proximately caused damage to the plaintiff d. usually arises from a statutory violation 2. Before negligence will be found in violating a statute or regulation the following criteria must be met: a. The statute or regulations i. Must clearly define the required standard of conduct ii. Must have been intended to prevent the type of harm defendants act/omission caused b. Plaintiff must be a member of the class of person the statute was designed to protect c. Violation must have been a proximate cause of the injury 3. Judge Cardozo, Martin case from the book: Failure to follow a relevant statute is prima facie negligence a. Breach jury i. What specific standard care/conduct statute/legislation ii. What did defendant do? not conform with statute iii. Ergo, negligence (breach) jury must say yes to the breach b. What is the rationale for the majority rule that a violation of the relevant statute is negligence per se? Legislation made the statute from majority opinions

c.

d.

e.

f.

g.

o Hopefully using the reasonable man standard of care Most of us obey the law, therefore these are the laws and we follow them, so if they are broken then a tort (negligence) should result Reasonable person knows what the laws are (ideally) What are the arguments against this rule? Taking the choice away from the jury is highly troubling to many people o This rule is too concrete, taking all of the choice from the jury, which is what juries were put in place for, weighing in When is the statute relevant to be used? i. Rules restatement p 77 note 5: 1. Congruent class 2. Congruent interest 3. Congruent harm 4. Congruent hazard ii. Idaho rules: p 263 1. Specific standard of care/conduct 2. Congruent harm: is the statute intended to protect against the harm that occurred 3. Congruent class 4. Violation of the statute is a proximate cause of the injury When is there an excuse for violation of the statute i. General exceptions 1. If complying with the statute would be more dangerous than ignoring it 2. If compliance with the statute was impossible under the circumstances ii. Idaho exceptions 1. Impossibility 2. Anything over which defendant has no control Is proof of breach of statute better for the plaintiff than proof that the defendant didnt conform with the custom? Clearly, YES (that is the effect of negligence per se) So you rep a defendant that has violated a statute, where are you left? i. Prove it isnt relevant ii. Prove it wasnt violated by some exceptions (is there any wiggle room with the judge and with the jury) -yes with how you try the case

iii. Notice

1. What evidence should be sought after in discovery for proof of breach? a. Actual notice evidence that defendant literally knew the accident had occurred b. Constructive notice a legal conclusion based on the fact that defendant should have known about this c. Circumstantial evidence proving certain acts and circumstances in which the jury must make inferences d. Direct evidence a video of the event e. Standard of proof: more likely than not 4. Proof of Breach The doctrine of Res Ipsa Loquitur i. Res ipsa loquitur the doctrine providing that, in some circumstances, the mere fact of an accidents occurrence raises an inference of negligence that establishes a prima facie case ii. RIL really falls somewhere between negligence and strict liability iii. Gives plaintiff an opportunity to not be nonsuited and the case thrown out when they dont quite have all the evidence to add up to negligence 1. Presumption arises only if: a. The thing that caused the accident was under the defendants control b. The accident could happen only as a result of a careless act c. The injured plaintiffs behavior did not contribute to the accident iv. The doctrine of res ipsa loquitur has three conditions: 1. The accident must be of a kind which ordinarily does not occur in the absence of someones negligence 2. It must be caused by an agency or instrumentality within the exclusive control of the defendant 3. It must not have been due to any voluntary action or contribution on the part of the plaintiff ( this is obsolete now, with comparative fault) v. Majority rule: Permissible inference: 1. rule of evidence that permits but does not compel an inference of negligence under certain circumstances 2. allows an inference of defendants negligence existing for submission to the fact finder; may accept or reject the inference in the factual determination 3. saves plaintiff from nonsuit vi. Minority rule: 1. Presumption affecting the burden of producing evidence 2. This means that if the defendant offers no plausible rebutting evidence the plaintiff is entitled to judgment as a matter of law on liability. If, however, the defendant offers such evidence the jury is to be informed that the plaintiff still bears the burden of persuading the jury that defendant was negligent.

vii. Ie: plaintiff puts on evidence that leads to RIL and nothing more. Defendant puts on no evidence. Can this go to summary judgment for plaintiff? 1. Majority rule: no 2. Minority rule: yes viii. Without RIL 1. More plaintiffs would go uncompensated 2. Defendants would have motivation to hide/destroy evidence or be encouraged to be negligent as long as it cant be proven ix. RIL red flags (often on exams) 1. When we dont know what happened 2. Certain types of accidents: a. Things dropping from the ceiling b. Sponges being left inside people c. Things falling from windows d. Boiler explosions e. Structures collapsing f. Plane crashes, planes falling from the sky 5. Duty In General i. Duty is an easy element to meet most of the time. If one undertakes to act, one has the duty to do so while exercising reasonable care to reduce foreseeable harm to others. At the other end of the spectrum, there is no affirmative duty to help people out; in other words, the very general rule is that omissions are not actionable. ii. Duty is largely about relationships and line-drawing. Arguments are often made by analogy rather than by reference to hard and fast rules. Appeals to larger policy points are key. [ the goals of tort law ] iii. Duty is a question of law for the judge to decide iv. Due care - In general, it means that kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger. 6. Duty Source i. Why is this defendant found to have owed a duty to the plaintiff? ii. There is not a duty to assist or help others unless there is something more, a special relationship iii. Sources of duty: 1. Affirmatively undertaking to act 2. Creating a foreseeable risk of harm 3. Common carriers/inn keepers: liable for slight negligence 4. Special relationship (scope due care) a. Doctor/patient relationship b. Co-adventure-ers c. Frat brothers d. Tarasoff Factors i. Foreseeability of harm to a specific plaintiff

ii. Degree of certainty that the plaintiff would suffer injury iii. The closeness of the connection between the defendants conduct and the injury suffered iv. The moral blame attached to the defendants conduct morality v. The policy of preventing future harm vi. The extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach vii. Availability, cost, and prevalence of insurance for the risk involved viii. Other factors mentioned in class: 1. Degree of control and knowledge 2. Relationship to third party 3. Degree of authority, expertise 4. Identifiability of the victim 5. Creation of a dangerous situation ix. The therapist owes a duty to exercise due care to protect the foreseeable victim of that danger 5. Statutes a. Negligence per se when one breaks the statute i. Concerned with breach ii. Takes the matter away from jury because it is negligence in and of itself iii. More specific or detailed iv. When the statute lays it out b. When using a statute as a source of duty, ask: is the statute intended to protect this type of occurrence? Prevent this kind of damage? If not, then it doesnt apply. 6. Knowledge 7. Right to control 8. Active handling 9. Premises liability source: land ownership, because the landowner has control and knowledge a. Unitary system & Tripartite system b. Tripartite system - Invitee has permission to be on the land i. Scope due care + a duty to warn invitees of concealed dangers and those that are found by, or should have been found by, inspection (inspections are required to discover dangers conditions and make them safe) 1. Business invitees customers, employees 2. Public invitees when the and is open to the public

c. Tripartite System - Licensee social guests i. Scope duty to make safe known dangers that are concealed, plaintiff must take the land as the owners use it + duty to warn of danger they know, or should have known, about d. Tripartite System - Trespasser those on the land without permission i. Unknown trespasser no duty owed ii. Known or anticipated trespasser landowner is under a duty to exercise due care to warn the trespasser of, or to make safe, concealed artificial (man-made) dangerous conditions known to the landowner iii. Child trespasser attractive nuisance doctrine: most courts impose upon a landowner the duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on his property. Plaintiff must show: 1. There is a dangerous condition present on the land of which the owner is or should be aware 2. The owner knows or should know that young persons frequent the vicinity of this dangerous condition 3. The condition is likely to cause injury 4. The expense of remedying the situation is slight compared with the magnitude of the risk. 10. Landlord/Tenant a. Rule from Kline: landlord owes a duty to tenant to avoid risks foreseeable (including criminal acts by third parties) in common areas under they control, in unban areas and high populations in which landlord knows or should have knows of past crimes. Factors: i. Control ii. Knowledge iii. Duty undertaken iv. Contractual obligation v. Custom vi. Analogies to similar relationship 7. Scope of the Duty (usually due care) ask: how careful do you need to be? 8. Scope Governmental immunity i. Local and Municipal Government 1. Proprietary function, trash collection etc. - (no immunity) 2. Government function, policing etc. - (no duty)

10

3. Discretionary function, planning (immune) ii. State 1. States must pay if they take your land 2. Otherwise are immune via the constitution iii. Federal Torts Claims Act 1. General rule is waiver 2. Exception then carved out a. Intentional torts b. Discretionary function c. Military 9. Interests ask: is there a protected interest? i. Usually its physical interests and/or property interests ii. But can also be emotional harm 1. Factors a. State of mind of the defendant/actor/inflictor of the distress b. Degree of the distress, usually must be severe c. Types of distress d. Circumstances e. Jurisdiction 2. Parasitic emotional distress accompanies physical injury, and is a standard item of recovery iii. Economic Harm 1. Negligence that, just by change, doesnt hurt anyone 2. Should the people that didnt get hurt by chance to be able to recover? iv. Survival of actions actions usually survive death of a party v. Wrongful Death vi. Lost consortium, parasitic (piggyback) claims 1. Wrongful death relatives of decedent can recover for pecuniary damages (Economic), and damages funeral expenses, medical costs, financial loss to family (lost wages dependent relatives, lost services, lost intangible services) 10. Actual Cause (cause in fact) but for [defendants act or omission], then [plaintiffs injury] would not have happened 11. Proximate Cause i. Directness: 1. Directness in time, geography ii. Intervening causes 1. Main test for determining whether an intervening force is a superseding cause of harm to another: a. The fact that its operation or the consequences thereof appear after the event to be extraordinary rather than normal in view of the circumstances existing at the time of its operation 2. In order for a subsequent act of negligence to NOT be deemed n intervening cause, it is necessary that:

11

a. The succeeding act of negligence should be so connected with the first in time and nature to make it plain that the damage was the natural and probable consequence of the original wrongful act or omission b. And to establish this the original negligence must have been such that it must have been known to, or anticipated by, the original wrongdoer that, in the natural course of human conduct, a succeeding act of negligence was at least likely to be committed iii. Foreseeable consequences: 1. Are material only in the question of whether the act is negligent 2. Are the test of whether the damages are too remote to be recovered 3. If the risk is not foreseeable then the defendant should not be liable iv. Policy (goals of tort law) 1. Deterrence, but not overdeterrance 2. Compensation of those harmed that would otherwise go uncompensated 3. Punishment of wrongdoers retribution 4. Risk spreading 5. Administrative efficiency v. Plaintiffs argument in favor of liability (yes proximate cause): 1. Direct unfolding of events 2. Nothing intervening 3. Definite foreseeability its foreseeable that pushing someone on a train could start a chain of events in which someone got hurt vi. Defendants argument against liability (no proximate cause): 1. There were lots of intervening causes 2. No foreseeability, no way they could have known the package would blow up (make every event in the chain of reactions seem so weird and nuts that it is unforeseeable), making even the plaintiff seem unforeseeable 3. Directness, huge zig zag of events that happened so that these things are linked in NO way 4. Policy reasons: why is it bad to hold the defendant liable? Overdeterrance, if we hold defendant liable prices will go up vii. Palsgraf case gives two arguments: 1. Judge Cardozo, majority: there is a duty within the zone of danger (to the reasonable person), determined by whether the plaintiff is foreseeable to the reasonable person, this is NOT PROXIMATE CAUSEIT GOES UNDER BREACH [better for defendant] 2. Judge Andrews, minority: there is a duty to the world at large, foreseeable plaintiff and zone of danger go under proximate cause [better for plaintiff] 12. Plaintiffs fault: i. Factors 1. Burden of proof on defendant to identify the act or omission.

12

III.

Duty: Plaintiff owed a duty to themselves Scope: due care Breach: reasonable man AC but for plaintiffs a/o plaintiffs injuries wouldnt have occurred 6. Damages are the same as the prima facie case ii. Unreasonable Implied Assumption of Risk 1. Knowing you must know there is a risk 2. Voluntary you do it on your own, not under someone else telling you to 3. Unreasonable 13. Affirmative Defense i. Plaintiffs fault (bop is on defendant, but its not as hard to win an express assumption of risk) 1. Knowing 2. Voluntary 3. Unreasonable ii. Express assumption of risk 1. Burden of proof is on the defendant 2. Hard to win for the defendant (waivers are disfavored) 3. Standard for risks that are inherent of the activity 4. Disfavored in the courts Medical Malpractice lawsuits brought against doctors that fall in negligence 1. Source of the duty i. contractual relationship ii. Dr. is in this profession and takes money iii. Dr. is undertaking to act iv. Dr. has expertise and control v. Plaintiff is relying on Dr. has an expectation 2. Scope of duty (this should also be the first line of my breach analysis) [usually custom goes only under breach, and not under duty. Med Mal is the exception] i. Majority rule: doctors custom, ii. 2 views: 1. national standard of care 2. local standard of care 3. Breach usually given by experts, its a question for the jury, with the help of an expert testimony i. Whos custom? (usually comes from the state legislature, meaning it heavily DEPENDS ON THE JURISDICTION) 1. Similar type of area 2. Similar type of doctor 4. Actual Cause but for the doctors negligence [doctors act or omission] plaintiffs injury would not have occurred 5. Proximate Cause quite rare in this case 6. Idaho Medical Malpractice i. Extremely local standard

2. 3. 4. 5.

13

IV.

ii. Plaintiff must find a doctor that will testify in court or tell an expert what the local standard of care is iii. Statute calls for exactly what happened at exactly this time at exactly this place iv. RIL cannot be used in Idaho med mal cases, neither can negligence per se v. Prelitigation Screening Panels 7. Informed consent i. Patient based standard 1. What would the reasonable patient want to know 2. In Idaho its a custom standard, what do reasonable Doctors tell their patients? Strict Tort Liability 1. Rule it seems but reasonable and just that the neighbor, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbors, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property

14

Notes on the exam: Do not restate the facts or spend any time telling the story unless the questions says to do so The outline should follow the prima facie case, then move to affirmative defenses. (Implied consent is an affirmative defense.) Unless the question says differently you should make objective statements An exam in torts does well to begin, plaintiff will argue, defendant will reply Each argument should begin with a statement of black letter law Let your outline of the prima facie case shine through your analysis First, whats the law? Second, what facts support the finding? o What would plaintiff say, what will defendant say, how will plaintiff reply? For each element of the pf case, give the rule. If there is a debate about how to state the rule, give me plaintiffs formulation and defendants formulation. Then give me plaintiffs factual arguments, then defendants rebuttal arguments. If relevant, specify what policy arguments plaintiff and defendant will make. Later in the semester you will recognize many issues under any given element. Just follow the same pattern for each sub-issue. Do not rush to a conclusion. Play with the law and with the facts; make all plausible arguments. To some of you this will feel like belaboring a point. But this is how you learn to think like lawyers. Remember the point of an exam is to show off all that you know about the issues presented. The meat of the answer is the prima facie case (rules and fact application); the gravy is the discussion of the policy goals of tort law. When talking about intentional torts, avoid the words reasonable, negligent, should have known or breach. I want to be sure you know that intentional torts are separate from negligence. On the test: o Section 1: 11 multiple choice questions in a running hypo 4 possibility answers some may have legal mistakes in them, these are the wrong answers! some of them are doozies, dont let this confuse you well probably have way too much time to answer these, this is so you can read them CAREFULLY o Section 2: fact pattern followed by specific questions ie what will plaintiff argue under duty only answer what the question calls for, dont talk for an hour about proximate cause o Section 3: fact pattern followed by general questions Discuss the entire lawsuit, include affirmative defenses Affirmative defenses: o all we know for intentional torts (battery) is consent o Negligence, plaintiffs fault!! And a small subset of plaintiffs fault: express assumption of risk o Spell things out. Write down the rule, write down the arguments o If you think an argument is small, talk about it! o Show her that you understand a torts lawsuit, run through the prima facie case 15

o Discuss things under the correct element o Organize your answer, maybe a third of the time o She may give us an organizing time before the test, in which you can make your outline o Shell email the instructions with the time allotments and all of that, so that we can figure out our timing ahead of time o If you do not finish in time, throw your outline onto the end so that she knows what we know and didnt have time to write down o Know the rules! o Use headings, use paragraphs o Read through the fact pattern multiple times and know that generally, in the essay questions, everything is put there for a purpose o You do not get marked off for wrong stuff, dumb stuff, etc o Check your emails!

16