MY TORTS SET
Terms in this set (88)
•Rivera v NY Transit
•Sudden occurrence that actor did not bring about
•Must make speedy choice b/w alternative responses
•When choice of responses in split-second instance, actor is not negligent if he does not choose the correct option
•have a duty of
Factors to Impose Strict Liability
degree of risk
of harm (likelihood great harm)
3. (in)ability of actor to
control risk thru ordinary care
4. (not) a matter of
(in)appropriateness to the place
the activity is used
6. does the harm outweigh the
value to community
•intentional to do act which leads to harmful contact
•either will satisfy
Keel v Hainline
Hammontree v Jenner
•Sudden seizure while driving
•sudden illness not negligence
•strict liability does not apply
Brown v Kendall
•not intentional tort, accidental
•separating dogs fighting
new negligence principle
•P cannot recover unless D does not exercise ordinary care
Garratt v Dailey
•hard to prove negligence in children, intent battery
y* that harmful contact would occur
•intent to do act, not intent for harm
Wallace v Rosen
•educators fire drill right
d* exception (prosser)
•Just touching is not enough for battery, has to be offensive to ordinary person. . .
Mink v University of Chicago
•DES prenatal battery case
•Battery: do something that leads to harmful unconsented contact, administering these pills counts as this
Lambertson v US
•intent to do action not intent to cause harm
•Plaintiff sues Gov't b/c wants to collect judgment
Conley v Doe
•sues for assualt, ruled not assault
words not enough
•words have to be accompanied by some action/display etc. . .
Bouton v All State
•boy shot on halloween in army costume
no reasonable apprehension
Zavala v Wal-Mart
•Establish elements of False imprisonment
•For FI, has to be a threat of force that puts perons in
n* of force
•moral pressure, threat of deportation/employment not enough
•locking them in is enough tho
Elements of False imprisonment
(Zavala v Wal-Mart 2001)
on Ps freedom of movement
threat of force
reasonable apprehension of constraint
-gives rise to
means of coercion
readily at hand
WHITTAKER v. SANFORD
•Water = actual physical restraint
•(intentional)Act= refused by constant referral
there has to be a phys. bound of somekind
d* for False Imprisonment
False Imprisonment Tort
•Based upon premise of
y*: ability to chose what you want done and dont want done w/ your body
•freedom of movement (4th Amendment)
DUPLER V SEUBERT (1975)
•Did not have to have any
use of force,
threat is enough
•Court factors in
imbalance in power relationships
s*(play a role in element of coercion)
•can defeat tort if
obvious and easy means of escape
Intentional Infliction of Emotional Distress
•When you can't sue for physical damages
•Courts reluctant to adopt
Elements for Intentional Infliction of Emotional Distress
Harris v Jones
(2) Conduct must be
b/w conduct and distress
(4)Distress must be
How to tell if extreme & outrageous (IIED)
unacceptable by civil society
•Conduct that is
not regularly encountered
•would make average person say "that's outrageous"
•class of tort law
•harms not physical in nature (ex: IIED, invasion of privacy, defamation)
•Almost always treated as intentional
Yates v John Marshall Law School (2008)
•Suit for Intentional Infliction of Emotional Distress
•Court rejects b/c conduct not
extreme and outrageous
intentional or reckless
s* b/c it is in the nature of law schools to reject people
HUSTLER V FALWELL (1988)
•Suit for IIED
•Court Says that Falwell is
s* must be allowed to be depicted and insulted etc...
•To find Hustler liable for IIED is a violation of 1st Amendment
•Political cartoons are essential to 1st Amendment
•Don't want to encourage (self) censorship
•Intentional exercise of control or domination over chattel that interferes w/ victim's right to chattel
Dickens v Debolt
•Illustrates important point about property torts:
Tort does not provide compensation for sentimental value
e* of things
Factors of conversion
•Severity of interference
•Harm to chattel
•Absence of good faith
•Inconvenience or expense to victim
Mohr v Williams
•wrong ear surgery
•did plaintiff consent to other ear surgery?
•possible sources of consent,
general, substituted, emergency
court ruled plaintiff did not consent
General Consent ?
(Mohr example) because she is consenting to surgery on the one ear, she is thus consenting to surgery on the other ear...
The legal doctrine that allows an authorized person to consent to or forgo treatment on the patients behalf
•when Immediate medical treatment is needed (life threatening)
•emergency care can be given to prevent loss of life or limb (serious injury)
Type of consent in which a patient who is unable to give consent is given treatment under the legal assumption that he or she would want treatment.
Durable power of attorney
•Allows individuals in advance to identify individual capable of making decisions for him/her
Advance directive (living will)
I anticipate that X will happen and if it does then this is what I want done
Ashcraft v King (1991)
•blood transfusion HIV case
•it is a battery b/c patient and doctor entered into
Marchetti v Kalish (1990)
•kick the can case, battery in sports
•Court says you must show actions are reckless or intentional breaking of rule to constitute battery
•Intentional: intent to harm
Hackbart v Cincinnati Bengals (1979)
•Not scope of employment that matters, but rather were you in the course of employment at the time of the tort
•Why sue Bengal's:
y* might apply
Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties.
CCH v Phillies
13 years old is too young to consent
Thomas v Bedford (1980)
•corporal punishment in schools (battery & consent)
•Was the consent
•educators authority (loco parentis)
•implied consent: by entrusting child to school they consented
•limits on educator privilege:
Noguchi v Nakamura (1982)
•Boyfriend driving away car
•usually concerns NIED
•when emotional damage is also accompanied by physical harm
•sue for emotional damages relating to the physical harm
Negligent Infliction of Emotional Distress
•The tort of causing another severe emotional distress through one's negligent conduct.
•Most courts will allow a plaintiff to recover damages for emotional distress if the defendant's conduct results in physical contact with the plaintiff or, when no contact occurs, if the plaintiff is in the
zone of danger
zone of danger
The area in which a potential plaintiff would be at risk of physical harm. Usually, in order to recover for emotional distress must have been in zone of danger.
Quill v Trans World Airlines
Quill v Trans World Airlines (1985)
•Case for Neg Infliction of Emotional Distress
•Court ruled that Plaintiff must be in (1)
ZONE OF DANGER
and also have (2)
PHYSICAL MANIFESTATION OF EMOTIONAL DISTRESS
A dangerous place, condition, or object that is particularly attractive to children
•Privilege that justifies the defendant's harming go the plaintiff's property in order to protect his own interest or those of a few private citizens
•Defendant is technically not to have held to have committed a tort, but the Defendant must pay for any damage that he caused.
Tarasoff v. Regents of University of California
• did not warn victim of patient's intentions; Patient killed victim.
• No duty to confine
• Yes: duty to warn
RULE OF LAW (FACTORS):
Certainty of harm
Connection between conduct and injury
Policy preventing future harm
Extent of burden
Consequences to community
Availability, cost, and insurance
Brown v. Kendall
DUE CARE: NEGLIGENCE
o Two dogs fighting, one owner took a stick to try and separate but hit the other owner in the eye in the process.
o He was not liable because the act was done with due care.
o Plaintiff must prove that the intent was unlawful or (IF lawful) that he acted without due care, otherwise no imposition of fault.
Plaintiff must prove that the intent was unlawful or (IF lawful) that he acted without due care, otherwise no imposition of fault.
Langan v. Valicopters, Inc.
•Degree of risk
•Gravity of harm (likelihood that harm will be great)
Ability/inability of actor to control risk through ordinary care
•Extent to which the activity a matter of
•Appropriateness/inappropriateness to place used
•Does the harm outweigh the value to the community
Vosburg v. Putney
So long as the intent was to kick him, he is liable for all results:
thin skull rule
Thin skull rule/eggshell
you take your victim as you find them
purpose(intent) and/or substantial certainty
Mohr v. Williams
CONSENT AS DEFENSE TO BATTERY
o Issue: was there consent to operate on the left, was consent necessary, and did
the intent have to be malicious?
o No consent to operating on the other ear. Consent to surgery is always
necessary. This was not an emergency. Malice is not a factor for intent in civil
•Consent isn't necessary for emergencies if the person is so injured they are
unconscious and so dire as necessary to preserve life/limb -
implied consent (emergency)
• Vincent v. Lake Erie Transport
o Captain unloaded cargo at the dock, a storm came up, he kept the ship moored, the dock was damaged because the boat knocked it in the storm.
o The captain must still pay for the damages. He derived a benefit, and the risk being shared means resulting costs should also be shared.
o Public policy concerns of risk minimization and cheapest cost avoider.
The captain could best determine the risk of going to sea so should have to pay the cost of damages where least risk was chosen caused damage to someone else's property.
o Those who are best in the position to gauge risks should incur the costs as well.
HR Moch v. Rensseleaer Water
o Defendant had a contract with the city to supply water for sewers, street cleaning, and fire hydrants. There was a fire and insufficient water pressure to fight.
o Issue: does the water company have a duty to someone outside their contract to provide water
o HOLD: No, the legal duty to provide water lies with the city, not the contractor. To impose a duty would extend one to a large new class of people.
o This is a case of nonfeasance so outside the duties of contract to third parties. The scope of duty depends here on public policy.
Strauss v. Belle Realty
DUTY - SCOPE
o 1977 power failure in NYC. Old man goes down to the basement to get water
and is injured because the stairs are not maintained and there is no light. He sues the landlord and the power company for not providing light even though the contract for the common areas was with the landlord and not tenants.
o Issue: no privity of contract, so does the power company owe him a duty?
oHOLD: No, they are answerable to landlord and contract parties. To extend would
include too many people and increase liability to the extent that it would
prevent commerce and put companies out of business.
Potter v. Firestone
o They live near a landfill where Firestone unlawfully dumped toxic substances.
They are afraid of getting cancer now.
o Issue: can you sue for emotional distress because of fear of getting cancer,
without evidence of actual injury?
o Injury acts as a proof of the genuineness of mental distress but there are other
ways. To collect damages must show:
o Exposure to toxic substances
o Fear stems from corroborated knowledge that you are more likely than not
going to get cancer - from an expert.
o Toxic torts - exposure but long latency period before any sign of injury
Renslow v. Mennonite Hospital
o She received a blood transfusion of the wrong type. Her blood became sensitized. The hospital knew of injury but did not disclose. They had a duty to notify. She had a baby years later and it developed serious damage because of the sensitization.
o Court extends damages here because injuries sustained determined whether the child was viable even before conceived. There is a right to be born free of injury, so duty extends to the child.
o The duty is extended in part because medical developments have increased the ability to reduce or ameliorate prenatal injury. If the parent isn't notified of possible injury, then they can do nothing to prevent injury. The duty to a child is to prevent injuries from birth.
o The prospect a child will be born is reasonably foreseeable.
Blyth v. Birmingham Waterworks Co.
Marshall V Ranne
•wild boar escaped, man stuck in house
did not voluntarily encounter risk,
even though the boar was outside of his house and he left, he did not have any
reasonable alternative course of conduct
•Courts rejected comparative and contrib neg w/r/t strict liability and accepted AOR as partial or complete defense (especially with respect to voluntary encounter)
Assumption of Risk Criteria
1) Actual or constructive knowledge of risk?
2) Specific appreciation?
3) Does plaintiff have voluntary encounter?
Wrinkle v. Norman
Abolishes the licensee/invitee distinction.
Neighbor's loose cattle
injured Plaintiff while he was trying to untangle the cattle.
Plaintiff could not recover b/c trespasser
public necessity case
Rowland & Christian
landholder has a duty to everyone to manage their household
d* with a view towards the safety of others.
• owe a duty of due care to all (including trespassers),
• duty default
• Tarasoff gets its factors from this case
Blackburn v Dorta
•no facts given
AOR is no longer viable as an absolute bar to recovery after the adoption of a CN (comparative neg) standard.
Vaughan v Menlove
•Hay rick was improperly constructed
•Defendant says "he used his best judgment"
•Court shifts from subjective standard to objective standard
•Why? In plaintiff's interest to play stupid
•want consistent outcome for consistent injury which causes consistent damage
Reasonable Person Standard
That standard of behavior that judges a person's actions in a situation according to what a reasonable person would or would not do under similar circumstances. (Vaughan)
•if actor knows more than ORPP, he is held to higher standard
Boyce v. Brown
New SOC for Medical profession
~~ Ankle case
•Average Care of a Medical Professional
•Provided by medical profession
•In the community (or similar communities)
•In the same field of specialty
•Applied w/ ordinary professional care
PAUSCHER v IOWA METHODIST MEDICAL CENTER
What does plaintiff have to
prove for lack of informed consent:
(1) - Material Risk
(2) - Undisclosed
(3) - If disclosed would lead patient to refuse
(4) - Procedure caused the patient harm
• use reasonable patient standard - hindsight fallacy
STRAUSS V. BELLE REALTY CO
•Court determines that Con Edison owes no duty b/c there is
no contractual relationship
Test for materiality (Pauscher)
of risk happening
of not getting procedure
of underlying condition
HEATHERON V SEARS
(1) - Was the Statute
(2) - was the statute created for
(3) - was the victim in the
of the statute
(4) - Was the breach of the statute the
of the injury, was this the
kind of risk that materialized
YBARRA V SPANGARD
•Patient in for appendectomy
•Get paralysis in arm after he went under
•Sues b/c he doesn't know what happened
•Satisfied the elements of Res Ipsa
NY Central RR v Grimstad
•Classic example of
Anderson v Minneapolis
•Substantial factor test
Material or substantial element
t* in producing harm"
Concert of Action
Two or more tortfeasors were acting pursuant to a
common plan or design
and the acts of one or more of them tortiously caused Plaintiff's harm, then they are
all jointly and severally liable
Substantial factor determination
(1) - # of causal actors
(2) - continuity of force, did force of factor happen continuously or did it come to rest
(3) - Passage of time - longer time passed less likely a factor
Summers v. Tice
•Quail hunting, 2 Ds shot and not sure who hits plaintiff
shifts burden to defendant
not with proof of negligence like Ybarra, with PROOF OF CAUSATION
•*first have to prove defendants were negligent•
•Unfair to dismiss claim & have burden fall on plaintiff
If P's harm caused by
(i) one of small # of Ds (no more than 5),
(ii) each of whose conduct was tortious, and
(iii) all Ds are present before the court, court may SHIFT THE BURDEN of proof to each individual D to prove his conduct was not the cause of P's harm.
Summers v Tice
HYMOWITZ V. ELI LILLY & CO. (Cause in Fact)
e* - Des Effects on Daughter
•Cannot show which manufacturer caused what harm
•Unfair to have damages fall on plaintiff
•Court applies market-share liability
Falcon v Memorial Hospital
•Statistical approach to
•The doctor was not the cause of death but the doctor was negligent
•Plaintiff may recover for % of her chance of survival if doctor exercised due care of a reasonable doctor
•Some states require >50% chance for recovery
DAUBERT V. MERRELL DOW PHARMACEUTICALS, INC.
Causation can be proven even if it is not known how the harm occurred, but only if there is sufficiently compelling proof that the defendant must have caused the harm somehow.
Standard for Admission of Scientific Evidence
(1) the testability of the theory/methodology,
(2) whether the theory has been published and subject to peer review,
(3) any potential rate of error and
(4) whether the knowledge has reached general acceptance in the field.
RYAN V. NEW YORK CENTRAL
•RR fire, destroys structure adjoining railroad
•Is RR liable for destruction of adjoining structure
you have to draw a line somewhere
•Not liable for the damage of the second house
•plank fell in hold of ship caused spark and caused explosion
•D was liable b/c it was a
•Court does not use foreseeability as an indicator of proximate cause
Direct Cause (Prox Cause)
•Not remote, in time or space
•Immediate explanation, no other source
YOU MIGHT ALSO LIKE...
Academic Word Lists - AWL Sublists
Intentional Torts/ Negligence
OTHER SETS BY THIS CREATOR
Contracts (2019 MBE Stuff I need to remember)
MBE Property (2019 UBE Stuff I want to Emphasize)
Wills and Trusts (Pennsylvania)