Torts Outline
Torts Outline
Professor Steenson
Fall Semester 2022
Cari Watson
Materials Used: office hours notes; lecture notes; Torts and Compensation casebook; Themis
Outlines; Torts Quick study guide; Quimbee outline; Quimbee website
A. GENERALLY
Snyder v. Turk 627 N.E 2d 1053 (Ohio Ct. App. 1993) (angry surgeon case) Pg. 27-28
Cohen v. Smith 648 N.E.2d 329 (Ill App ct. 1995) (religious hospital nudity case) Pg.
28-30
1. Elements
A defendant is liable to the plaintiff for battery when
he:
i) Causes a harmful or offensive contact with
the person of another; and
ii) Acts with the intent to cause such contact
or the apprehension of such contact.
a. Actual force
b. Threat of force
c. Duress
d. Breach of a legal duty to release
A. CONSENT
Kaplan v. Mamelak 162 (Cal . App. 4th 637 2008)(Dr operated on wrong
herniated disk)
Doe v. Johnson 817F. Supp 1382 (W.D. Mich. 1993)(P sues D for having sex with
her and not disclosing he had HIV)
a. Mistake
Consent by mistake is valid consent unless the
defendant caused the mistake or knew of it
and took advantage of it.
b. Fraud
Consent induced by fraud is invalid if it goes to
an essential matter. If the fraud that induced
the consent goes only to a collateral matter, then
the consent is still valid.
c. Duress
Consent given while under duress (physical force
or threats of physical force) is not valid. The
threat, however, must be of present action, not of
future action. In general, threats of economic
duress will not be enough to render a plaintiff’s
consent invalid.
2. Implied Consent
The plaintiff’s consent is implied when the plaintiff
is silent (or otherwise nonresponsive) in a situation
in which a reasonable person would object to the
defendant’s actions.
a. Emergency situation
When immediate action is required to save the life
or health of a patient who is incapable of
consenting to treatment, such consent is
ordinarily unnecessary. Courts generally say that
consent is “implied in fact,” but it probably is
more accurate to say that the treatment is
privileged.
1. Felony
a. Arrest by private citizen
A private citizen is privileged to use force
(e.g., commit a battery or false imprisonment
tort) to make an arrest in the case of a felony if
the felony has in fact been committed and the
arresting party has reasonable grounds to suspect
that the person being arrested committed it.
It is a defense to make a reasonable mistake as to
the identity of the felon but not as to
the commission of the felony.
b. Arrest by police officer
A police officer must reasonably believe that a
felony has been committed and that the person she
arrests committed it. Unlike a private citizen, a
police officer who makes a mistake as to the
commission of a felony is not subject to tort
liability.
2. Misdemeanor
A. TRESPASS TO CHATTELS
1. Definition
A defendant is liable for trespass to chattels (i.e.,
tangible personal property) if she intentionally
interferes with the plaintiff’s right of possession by
either:
i) Dispossessing the plaintiff of the chattel;
or
ii) Using or intermeddling with the plaintiff’s
chattel.
2. Intent
Only the intent to do the interfering act is necessary;
the defendant need not have intended to interfere with
another’s possession of tangible property.
The doctrine of transferred intent applies to trespass
to chattels.
3. Appropriate Plaintiffs
An action for trespass to chattels may be brought
by anyone with possession or the immediate right to
possession of the chattel.
4. Mistake
Mistake by the defendant about the legality of his
actions is not a defense.
5. Damages
In a case of dispossession, a plaintiff may recover
for:
1. Definition
A defendant is liable for conversion if
he intentionally commits an act depriving the plaintiff
of possession of her chattel or interfering with the
plaintiff’s chattel in a manner so serious as to
deprive the plaintiff of the use of the chattel. The
plaintiff’s damages are the chattel’s full value at the
time of the conversion.
Only personal property and intangibles that have been
reduced to physical form (e.g., a promissory note) can
be converted.
2. Intent
The defendant must only intend to commit the act that
interferes; intent to cause damage is not necessary.
Mistake of law or fact is no defense (e.g., a purchaser
of stolen goods is liable to the rightful owner).
Accidentally damaging the plaintiff’s chattel is
not conversion if the defendant had permission to use
the property.
3. Interference
The defendant interferes with the plaintiff’s chattel
by exercising dominion or control over it. Examples of
acts of conversion include wrongful acquisition,
transfer, or detention; substantially changing;
severely damaging or destroying; or misusing the
chattel.
Vincent v. Lake Erie Transportation Co. 124 N.W. 221 (Minn. 1910)
(Steamship owned by the defendant was at a dock unloading cargo but
could not leave because of bad weather. When the weather came through
it slammed the ship against the dock doing $500 worth of damage.)
1
I. Elements of negligence. DBCSD
A. Duty
B. Breach of duty
C. Cause in fact
II. Duty
B. Other formulations
A. Standard of care
(Intellectual disability)
(3) Intoxication
Foreseeability of harm
Gravity of harm
Burden of adequate precautions
Florek v. Vannet
Negligence per se- a form of ordinary negligence that results from the
violation of a statute. A per se negligence rule substitutes a statutory
standard of care for the ordinary prudent person standard of care, such that
a violation of a statute is conclusive evidence of duty and breach.
Ordinary prudent person standard of care
Must show evidence of what the other party did
Argue those actions fall below the standard of a reasonable person
Definition
3. Cost-Benefit Analysis
In many cases, courts describe the primary factors to
consider in determining whether the defendant has
acted negligently to be:
a. The foreseeable likelihood that the defendant’s
conduct would cause harm;
4. Negligence Per Se
a. Basic rule
i) When a criminal or regulatory
statute (or an administrative regulation
or municipal ordinance) imposes upon any
person a specific duty for the protection
or benefit of others;
ii) If the defendant neglects to
perform that duty;
iii) He is liable in negligence to anyone in
the class of people intended to be protected
by the statute;
iv) For any accidents or harms of the type
the statute was intended to protect against;
v) That were proximately caused by the
defendant’s violation of the statute.
In most jurisdictions, the violation of the
statute establishes either negligence as a
matter of law or a rebuttable presumption of
negligence.
A majority of courts hold that a violation
of a state or federal regulation or a
municipal ordinance may also result in
negligence per se. A minority of
jurisdictions hold that violation of a
regulation or an ordinance is merely
evidence of negligence.
V. Damages
1. Actual Damages
The plaintiff must prove actual harm, i.e.,
personal injury or property damages, in order to
complete the requirements of liability for
negligence. Unlike actions for intentional
torts, nominal damages are not recoverable in
negligence actions. In addition, a plaintiff who
suffers only economic loss without any related
personal injury or property damage cannot recover
such loss through a negligence action. However,
once a plaintiff has proven non-economic injury,
he is entitled to recover both economic and non-
economic damages. Attorney’s fees and interest
from the date of damage are not recoverable in a
negligence action.
2. Compensatory Damages
The general measure of compensatory damages is
compensation that would make the victim whole, as
if he had never suffered the injury.
3. Mitigation of Damages, Avoidable Consequences
The plaintiff must take reasonable steps to
mitigate damages. Although sometimes phrased as
a “duty to mitigate,” this “duty” is not an
obligation that the plaintiff owes to the
defendant but instead is a limitation on the
plaintiff’s recovery due to the failure to avoid
harm that could have been avoided by the use of
reasonable effort after the tort was committed.
For example, if the victim fails to use
reasonable care to treat a wound, resulting in
infection and the loss of a limb, she ordinarily
X. VICARIOUS LIABILITY
1. Contributory Negligence
Contributory negligence occurs when a plaintiff fails
to exercise reasonable care for her own safety and
thereby contributes to her own injury. Note that
when a plaintiff is suing a defendant for the
negligent rendering of services, such as medical
services, the plaintiff’s negligent conduct in
creating the condition that the defendant has been
employed to remedy is not taken into account.
a. Contributory negligence: traditional rule
At common law, and in a handful of states, the
plaintiff’s contributory negligence (i.e.,
failure to exercise reasonable care for her own
safety) is a complete bar to recovery, regardless
MNEMONIC: DAD
EXAM NOTE: The “DAD” situations are the only situations in
which a defendant can be liable without fault.
E. Defenses
F. Domestic Animals
a. Known to be dangerous
A domestic animal’s owner is strictly liable
for injuries caused by that animal if he knows
or has reason to know of the animal’s dangerous
propensities and the harm results from those
dangerous propensities. Otherwise, at common
law, a domestic animal owner is liable only for
negligence.
b. “Dog-bite” statutes
Many states have enacted “dog-bite” statutes that
hold owners of dogs or other domestic animals
designated in the statute strictly liable for
damages resulting from personal injuries.
A. Types of defects
1. Design defects
2. Manufacturing defects
3. Inadequate warnings
1. Available theories?
a. Strict liability
b. Contributory negligence
In a contributory-negligence
jurisdiction, the plaintiff’s
negligence generally is not a defense
to a strict-products-liability action
when the plaintiff negligently failed
to discover the defect or misused the
product in a reasonably foreseeable
way, but it generally is when the
plaintiff’s fault consisted of
unreasonably proceeding in the face of
a known product defect.
Note: Suppliers are required to
anticipate reasonably foreseeable
misuses of their products.
c. Assumption of risk
2. Express Warranties
An express warranty is a guarantee—an
affirmation of fact or a promise—made
by the seller regarding the product
that is part of the basis of a bargain.
A seller is liable for any breach of
that warranty, regardless of fault.
Damages for personal injury or property
damage are recoverable.
a. Disclaimers
Although the seller generally can
disclaim warranties, in the case of
consumer goods, any limitation of
consequential damages for personal
injury is prima facie unconscionable.
In the case of express warranties, a
disclaimer is valid only if it is
consistent with the warranty, which
it usually is not.
b. Tort defenses
1. Assumption of the risk
Most jurisdictions hold that
the plaintiff’s unreasonable,
voluntary encountering of a
known product risk bars
recovery.
2. Comparative fault
2. Common elements
3. Merger
a. Design defects.
c. Manufacturing defects.
1. Users
2. Consumers
3. Bystanders
G. Defenses