Torts Outline Daniel Ricks



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Torts Outline
Daniel Ricks
Fall 2006
Professor Richard Stewart
New York University
Overview


  1. Intentional Harms

    1. Prima Facie Case

    2. Types of Offenses

    3. Illustrative Defenses

  2. Accidental Harms

    1. Historical Foundations

    2. Analytic Foundations

    3. Decisional Foundations

  3. Negligence

    1. Reasonable Person

    2. Calculus of Risk

    3. Duty to Rescue

    4. Custom

    5. Statutes and Regulations

    6. Judge and Jury

    7. Res Ipsa Loquitur

    8. Vicarious Liability

  4. Causation

    1. Cause in Fact

    2. Joint Tortfeasors

    3. Proximate Cause

    4. Recovery for Emotional Distress

  5. Affirmative Defenses Based on Plaintiff’s Conduct

    1. Contributory Negligence

    2. Assumption of Risk

    3. Comparative Negligence

  6. Liability Among Joint Tortfeasor Defendants

  7. Damages

  8. Modern Strict Liability

  9. Alternatives to Tort

  10. Medical Malpractice

    1. Standard of Care

    2. Physicians Duty of Disclosure and Informed Consent

    3. Res Ipsa

    4. Alternative Approaches to Medical Mishaps

  11. Products Liability

    1. Fall of Privity and Rise of Products Liability

    2. Restatement Formulations

    3. Tort or Contract?

    4. Manufacturing or Construction Defect

    5. Design Defects

    6. Duty to Warn

    7. Plaintiff’s Conduct

  12. Punitive Damages



  1. Intentional Torts

    1. Prima Facie Case

      1. Conduct

      2. Injury

      3. Causation

        1. Same for most Intentional Torts: More probably than not, D caused the injury of which P complains.

      4. Damages

        1. Physical Injury: medical expenses, lost income, pain and suffering

        2. Dignitary Injury: difficult to measure because intangible

        3. Elements: will depend on injury

        4. Scope: All directly caused harm award in damages

    2. Intent—A person intentionally causes harm if he bring acts purposefully or knowingly.

      1. Purpose: Acts with desire to bring about that harm.

      2. Knowledge: Knows with substantial certainty that harm will occur.

        1. Garratt v. Dailey (pulls chair from under old arthritic lady)

    3. Types of Intentional Torts

      1. Battery—intentional infliction of harmful or offensive bodily contact

        1. Conduct: D acts intending to cause harmful or offensive bodily contact with P (or 3rd person) or intends to cause imminent apprehension on P’s part of such a contact. Without this intent, it can’t be a battery.

        2. Injury: An offensive contact with P directly or indirectly results.

        3. Vosburg v. Putney: Vosburg means to touch leg, which is wrongful because class has been called, so a battery is committed, even though it was probably not intended to have that particular result.

        4. Inaction or failure to act is not a battery although it may be some other tort

        5. Garrett v. Dailey: Dailey, 5-year-old, moves chair and arthritic old lady tries to sit down and falls. Although no intent to hurt, court finds he knew with substantial certainty that she’d try to sit down.

        6. Talmage v. Smith: D throws stick at two of P’s friends but hits P in eye, even though D hadn’t seen him.

      2. Assault

        1. Conduct: D acts intending to cause harmful or offensive contact with P or 3rd person, or imminent apprehension of such a contact.

        2. Injury: P is put in such imminent apprehension. No physical harm but fright, emotional distress, or dignitary harm.

        3. I. de S. and Wife v. W. de S.: No harm done when angry man at tavern struck hatchet at woman.

      3. Trespass to Land

        1. Conduct: D intentionally does an act that interferes with P’s exclusive control of land.

        2. Injury: Space is invaded. Could be more than injury to space—injury to specific things on property. Can be completely innocent.

        3. Dougherty v. Stepp: D’s presence on P’s land is trespass although he entered only to survey land and did not mark anything.

        4. Brown v. Dellinger: 2 kids purposefully light fire in charcoal burner in P’s garage. Ends up destroying garage and house.

        5. Cleveland Park Club v. Perry: Kid in swimming pool puts rubber ball in drain pipe, ruins pool. Trespass because intent to complete physical act, not intent to cause injury.

        6. Intangible trespass is not a trespass. (Public Service v. Van Wyk.)

      4. Trespass to Chattels

        1. Conduct: Intentional intrusion into P’s exclusive control of chattel.

        2. Injury: Chattel damaged or even just interfered with. Can be completely innocent.

        3. Intel v. Hamidi: Not trespass to chattels because the electronic communications of D neither damaged recipient computer system nor impaired its functionality.

      5. Conversion

        1. Conduct: D takes complete and indefinite control of P’s property. More than trespass to chattels.

      6. False Imprisonment

        1. Conduct: D’s intentional restraint of someone’s liberty of movement, accomplished through force or pretended authority.

      7. Intentional infliction of emotional distress

        1. Conduct: More general than assault.

        2. Pioneer case: D sends false telegraph as joke and wife has nervous breakdown thinking her husband is injured.

    4. Illustrative Defenses

      1. Background

        1. Defendant can deny:

          1. What alleged didn’t amount to a tort

          2. Factual basis—defend against the claim

        2. D can claim illustrative defense: notwithstanding prima facie case, P can’t recover because of the affirmative defense. Burden of proof on D.

      2. Contributory/ Joint Negligence

        1. Not an acceptable defense for an intentional tort

      3. Consent

        1. Can be expressed or implied by conduct

        2. Mohr v. Williams: doctor operates on left ear without consent—battery

        3. O’Brien v. Cunard Steamship: Holding out arm for smallpox vaccination is implied consent.

        4. Kennedy v. Parrott: While performing appendectomy, doctor discovered ovarian cysts which he punctured out of medical judgment and which caused great pain. Not a trespass even though didn’t consent, because couldn’t have gotten it immediately. Reasonable person test.

        5. Vosburg: If they’d been on playground, consent might have been a good defense because of implied license of playground.

      4. Insanity

        1. Not recognized as an affirmative defense if insane person acts with requisite intent, even when the intent is not to harm.

        2. McGuire v. Almy: D, insane woman, attacks her nurse, P. Because she formed the intent to strike, held to same standard as normal person.

      5. Self-Defense

        1. Doesn’t take into consideration the individual situation or a peculiarity but is the reasonable person test for imminent harm.

        2. Still committed tort but is privileged to do it, unlike consent where it wouldn’t be a tort if consented to.

        3. Courvoisier v. Raymond: Cop, P (Raymond), approaches D without his uniform as his deputies chase the trouble makers in the street. Disbelieving that P is a cop, D shoots and injures P, thinking he’s in imminent danger because P approaches in threatening manner.

      6. Necessity

        1. Ploof v. Putnam: P tries to dock in storm at private dock of D, who unties boat which is then ruined. Because of necessity in storm, should be allowed.

        2. Vincent v. Lake Erie Transportation: D (Vincent) can keep boat tied to dock in storm, but must pay for resulting damages.

        3. Courvoisier: also falls under necessity.

      7. Defense of Others

      8. Defense of Property

      9. Recapture of Chattels

      10. Arrest

      11. Justification



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