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Duties Outline

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Duties When does D have a duty to act a certain way?
Intentional Torts

Nonfeasance Misfeasance Special Relationships Statutes

Comm. Innkeepers


ADAs Nuisances Product Liability Vicarious Liability


Intentional Torts a. Rule i. RTT: D is liable for an intentional tort if D intends to produce a result or knows that a result is substantially certain to happen, and the result causes one of the following harmful consequences (single intent):

1. battery: D intends contact with someone and harmful / offensive contact with anyone results; a. note: D is liable for all resulting damages (Vosberg). b. minority / RST: D is liable for battery if D intends to cause a harmful / offensive consequence and a harmful / offensive consequence with P results (dual intent).

2. assault: D intends contact or the threat of contact and P's reasonable apprehension of actual, imminent battery results. a. reasonable = objectively unless D knows P is extra-sensitive; b. actual = not potential c. imminent = immediate in terms of time and space

3. false imprisonment: D intends to totally confine P and P's conscious awareness of confinement results.

4. intentional infliction of emotional distress: D intends to cause extremely outrageous conduct and P's severe distress results.

5. conversion: D intends to sell P's property to third party and sale results.

6. trespass: D intends to breach P's boundary or interfere with P's property right; and interference with P's possession or occupancy of property results. ii. The duty generally exists, but there are several exceptions.

1. consent / expected behavior: P consents to the activity, e.g. a professional athlete or during recess (Vosberg);

2. private necessity: D has incomplete privilege of tortious behavior, but must compensate P for right and damages (Vincent); a. necessity = danger to life/limb or inability to control movements (Ploof);

3. public necessity: D has official immunity from torts. b. Analysis i. Battery

1. The single intent rule, used in most courts, suggests that so long as the act that caused harm was intended, D is liable. The dual intent rule suggests that D must have intended to harm.

2. Generalized knowledge of likely harm is not the same as intent, which requires purpose or knowledge of substantial likelihood of harm to specific P.

3. D generally cannot kick P, but if the kick is "lawful," it is okay (Vosberg). ii. Private Necessity

1. There are four possible allocations of entitlement: a. P gets full property right (may use dock and does not have to pay (Vincent, Lewis dissenting); b. P gets incomplete privilege of property + liability (P may use dock but must pay rent and damages)(Vincent); c. D gets full property right (may exclude the boat without paying (Ds in Ploof)); d. D gets property + liability (D may exclude but must pay damages); i. This scheme is backwards so (d) actually doesn't make any sense (it is exactly the same thing as (b) but from D's perspective), but this is the way Shugerman likes it.

2. The problem with any solution other than Vincent is the danger of monopoly and price gouging during emergencies (Post v. Jones). a. The problem with the (c) solution is it could lead to dead Ps. iii. Public Necessity

1. This is old rule that developed before municipalities could be held liable for torts; Shugerman does not like it very much. c. Cases i. Battery

1. Vosberg v. Putney (Wis. 1891, 4): D who intended to lightly kick P during class and whose kick caused P's leg to fall off liable for all damages that resulted from battery.

2. Squibs a. White v. University of Idaho (Idaho 1990): single intent; D who put hands on student = battery. b. Wagner v. Utah (Utah 2005): only required mental state for battery is intent to contact (not cause harm), so insane person may commit battery. c. Talmage v. Smith (Mich. 1894): transferred intent; D who threw stick at A but hit B = battery.


Shaw v. Brown & Williamson Tobacco Corp. (D. Md. 1997): generalized knowledge that second-hand smoking causes harm insufficient intent for company to be liable for battery.


II. Consent

1. Vosberg v. Putney (Wis. 1891, 4): D who intended to lightly kick P during class had duty not to do so, but wouldn't be liable if kick were during recess. iii. Private Necessity

1. Ploof v. Putnam (Vt. 1908, 68): D liable for damages from removing boat belonging to P, who due to necessity trespassed on D's dock during storm.

2. Vincent v. Lake Erie Trans. Co. (Minn. 1910, 71): P liable for damages resulting from using RC in chaining boat to D's dock.

3. Squibs a. Mouse's Case (Eng. 1609): D not liable for throwing P's cargo away to save rest of ship. b. Post v. Jones (U.S. 1856): D can't charge excessive amounts for salvage due to emergency. iv. Public Necessity

1. Squibs a. N.Y.C. v. Lord (N.Y. 1837): official D immune via public necessity when he destroyed P's house to save rest of city. b. Respublica v. Sparhawk (Pa. 1788): official D who tore down house that would have been safe from danger immune via public necessity c. U.S. v. Caltex (U.S. 1952): U.S. does not have to compensate P for destroying plant during war. d. Schever v. Rhodes (U.S. 1974): Ohio gov. immune for Kent State shootings; pub. necessity. v. Semi-Objective Standards a. Rule i. D is liable for neglecting to act as a reasonable person in that situation would.

1. RC is an objective standard (Vaughn); a. exceptions (semi-objective standards): i. beginners: RC standard unless P assumes risk of D's inability; ii. experts: RC standard unless D presents expert status to P; iii. children: duty to act as an ordinary child of the same age (Roberts);

1. exception: the child is engaging in dangerous adult activities; iv. handicapped: duty to act as a reasonable handicapped person (e.g. a blind person not noticing a sign is OK, but she should not be driving); v. temporarily incapacitated: D has no RC duty if the incapacitation affects D's ability to understand duty or conform to the duty; and D has no notice or forewarning of the incapacitation (Breunig); vi. elderly: RC standard, unless (iv) or (v) is true (Breunig); vii. poor: poor people owe the same RC standard as rich. viii. insane: no duty if locked up unless person is P suing caregiver; then RC. b. Analysis i. Semi-objective standards generally depend on what P knows; if P has no reason to know that D has a lower standard of duty than RC (e.g. D is a child driving on the highway), D
has an RC standard. ii. Insane Ps (rather than Ds) are held to RC standard, in order to incentivize treatment instead of security. c. Cases i. Vaughn v. Menlove (Eng. 1837, 171): D had objective duty, not subjective judgment, to keep haystack from burning. ii. Roberts v. Ring (Minn. 1919, 178): 77-year-old D had RC duty to avoid hitting 7-year-old P, who had semi-objective duty to avoid being hit. iii. Breunig v. American Family Insurance Co. (Wis. 1970, 185): D who temporarily thought car was Batmobile and drove it into next lane liable only if she had no forewarning of temporarily insanity. iv. Denver & Rio Grande R.R. v. Peterson (Colo. 1902, 192): poor warehouseman owes the same standard of care as a wealthy person; otherwise, homeless would have no RC duty. v. Squibs

1. Ramey v. Knorr (Wash. App. 2005): D with foreseeable delusional disorder RC standard.

2. Jankee v. Clark County (Wis. 2000): insane P has RC duty not to jump out of window from D mental hospital, which has RC duty to secure P.

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