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Torts Outline

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Torts Outline - University of Virginia School of Law

1. Intentional Torts a. Intent: in general i. Always goes to the act, not to the consequences ii.

2 ways to Satisfy:

1. Desired to bring about contact

2. Knew that contact would be the result of actions (e.g. running up stairs with a bat sideways, you could want people to get out of the way, but it's certain you would hit them)

iii. iv. v.

Evidence: intent must be inferred from the situation Non-excuses:

1. I meant this result, not that one

2. I meant to do the conduct, but the result was an accident Transferable: If you intended to tort A but instead torted B, the intent transfers to B

b. Battery i. Elements

1. Intent to commit an act that will cause harm

2. Harmful or offensive contact

ii. iii.

a. Contact doesn't have to be direct, just the result of the tortfeasor's action b. There are situations where touching, even harmful touching is expected (see below) Protects right to physical person Ex:

1. Vosburg v. Putney - Eggshell Plaintiff a. Facts: Assault and battery. Kid lightly kicks other kid under the table, causes infection and amputation due to preexisting condition. b. Rule: eggshell plaintiff - Take your victim as you find them. The act itself--the kick--was unlawful, and therefore the actor was liable for any consequences of that act c. Rule2: circumstances make a difference (e.g. playground vs. classroom)

2. Garratt v. Dailey - Substantial Certainty a. Facts: boy pulled chair out from under lady, she fell to ground, was hurt b. Rule: There must be substantial certainty that a harm will occur, must act with purpose to cause contact c. Holding: there was substantial certainty upon remand

c. Assault i. Elements

1. Intentional act a. Sometimes it was intended as assault b. Sometimes it is a missed battery c. Look to outward action of D, not his secret intentions

2. Definite Action that places victim in imminent apprehension of bodily harm

1 ii. iii.

iv. v.

a. Can be verbal or physically

3. Victim Reasonably Believes there is imminent bodily harm a. Apprehension is not the same as fear, it adjusts for lack of genuine fear b. Unusual sensitivity does not make for an assault unless D knows of this c. I.e. take an objective view, works both ways though (more or less afraid) Protects security/integrity of the mind I. de S. and Wife v. W. de S. - reasonable apprehension

1. Facts: Drunk comes to tavern and wants a drink, wench says no. He swings an axe at the door

2. Rule: If victim reasonably infers an imminent apprehension of harm, this is assault. Tuberville v. Savage - Impossibility and Imminence

1. Facts: Defendant, hand on his sword's hilt, said to plaintiff that he would "not take such language" from plaintiff if it were not assize time.

2. Rule: Language and actions can show intent or lack thereof, as well as eliminate imminence.

3. Reasoning: Impossibility: a threat does not amount to assault if it is impossible for it to occur Allen v. Hannaford

1. Rule: "whether there is an assault in a given case depends more upon what may be the secret intentions of the person committing the assault" (i.e. knowing the gun is loaded is irrelevant)

d. Trespass i.


1. Intent to enter land a. If entry was involuntary then it is not trespass b. Ignorance of entry is no excuse (no better treatment for ignorance)

2. Physical entry

ii. Ex:

1. Dougherty v. Stepp - harmless entry is still trespass a. Facts: Defendant entered plaintiff's land without permission, but left the land otherwise undisturbed. b. Rule: Every unauthorized entry onto private property is trespass - strict liability c. Reasoning: Defendant was liable for any consequences of trespass, whether it was unintentional or not

2. Cleveland Park Club v. Perry - unexpected consequences, eggshell property a. Facts: Trespass. Defendant, a 9 year old boy, lodged a rubber ball in a pool's pipes at a private club, causing "excessive damage" to the pipes.

2 b. Rule: "The intent controlling is the intent to complete the physical act and not the intent to cause injurious consequences." c. Reasoning: Where do we allocate the harm? Who can best insure against it? We can't have unintended consequences be an excuse

3. Guille v. Swan - Extent of (strict) Liability - Foreseeability a. Facts: balloon crashed causing damage to crops, operator called for help, people coming to his rescue caused more damage b. Rule: All that he ought to have foreseen he must be responsible for. Here the rescue was foreseeable, especially given calling for help

1. Public Service of Colorado v. Van Wyk - Intangible/Abstract Trespass c. Facts: Electromagnetic fields, noise, radiation was emitted from a public utility. Neighbor sued for trespass. d. Rule: For instances of intangible trespasses, onus is on victim to concretely demonstrate physical harm caused.

2. The Case of Thorns (Hull v. Orange) - strict liability for damages in trespass e. Facts: Guy cuts down thorns and goes on another's property to get them. f.

Rule: You are strictly liable for damages caused in trespass, even if it's minor

g. Reasoning: This is the regular basis for liability in trespass. h. Shift to allowing recovery for non-illegal things i.

See also the fact that the thorns landed there unlawfully, therefore he had no excuse in going to get them


Move to negligence?

e. Privileges/Defenses/Justifications i. Consent

1. Mohr v. Williams - Breadth of Consent & Autonomy in Medical Cases a. Facts: P consented to right ear operation. D operated on left ear instead after re-examining and consulting P's other doctor while P under anesthesia. No negligence during surgery, but P claimed harm. b. Rule: Patient has autonomy, must consent to all procedures c. Exception: emergency or implied consent d. Reasoning: Good Decision Theory: who can make the best decision

2. Hoofnel v. Segal - General Consent Forms

3 ii.

a. Rule: signing a waiver allowing anything that is medically necessary allows for discretion even when statements made afterward say otherwise for the un-agreed to procedure

3. O'Brien v. Cunard Steamship Co. - Non-verbal consent a. Rule: consent can be non-verbal if the action and circumstantial evidence make them so b. E.g.: putting arm out for a vaccine (even if you don't know what it's for)

4. Boxing/Sports/Consent to Illegal Acts a. Hudson v. Craft (1949) - Boxing Promoter Found Liable i. Facts: The defendant, a boxing fight promoter, recruited the plaintiff, an 18 year old boy, and an older man to enter into an illegal prize fight for $5. Boy gets hurt, sues the promoter. ii. Rule: No one can consent to participation in unlawful activity. I.e. consent is not a defense for organizing an illegal prize fight iii. Reasoning Majority View: Must have public policy to protect certain classes of individuals. Legislature determined that they needed to protect them. iv. Reasoning Minority View: "Violenti non fit injuria" -- the willing suffer no injury. Doesn't matter that it was unlawful. v. But see Hart v. Geysel (1930) no recovery due to consent for deadly blow in illegal fight vi. ex turpi causa non oritur actio (no action shall arise out of an improper or immoral cause) b. Notes on Boxing: Incentive effects i. No Consent Defense: you can sue if you get clobbered, but get sued if you win ii. Yes: if you clobber the other guy you are off the hook, but up a tree if you get hurt iii. Basically the incentive effects cancel each other out iv. Over deterrence: do we want civil in combination with criminal liability c. Competitors in sports consent to the violence that occurs within the boundaries of the rules, but not gratuitous violence beyond the rules. See Hackbart v. Cincinnati Bengals (1979) i. Sometimes if it is outside the rules it can be ok if it's still common (e.g. fights in hockey) ii. Gauvin v. Clark: consent to injuries from legal play, and also from those slightly outside the rules since rules aren't always followed iii. Compliance with the rules of football is a safe-harbor iv. You have not consented to deliberately illegal activity in the game Necessity (Privilege)

1. Self Help: if something bad is happening to you, you have the privilege to do a. Bilateral Monopoly: one person has the good, one person needs it, the law imposes to prevent excessive rent-seeking b. Generally you must reasonably compensate for the damage done to the other c. Liability is a question of allocation of damages, self-help to begin with is a question of efficient allocation of resources d. Deterrence: we add liability to deter people from pushing necessity too far e. You get punitive damages for excessive self help

2. Public Necessity: risk is to the public, damage to the owner of property to prevent greater harm to the public/others' property

3. Private Necessity: individual is at risk and uses property of others

4 iii.

4. General Note: it's much harder to claim necessity if you inflicted physical harm on someone's person


6. Ploof v. Putnam: Necessity and Liability for Damage a. Facts: Plaintiffs tried to moor at defendant's dock during storm, were turned away and received injuries and incurred damage when the boat was destroyed. b. Rule: When under duress, individuals may exercise "necessity" to a reasonable degree. However, individuals acting in necessity are liable for any property damage they cause, but are not liable for trespass. Trespass beyond what is appropriate for the threat level is not excused under necessity. c. No duty to rescue, but you can't get in the way d. Normal property rules don't apply

7. Vincent v. Lake Erie Transportation Co. - Compensation a. Facts: Ship is about to go out into a storm, but decides to stay moored at the dock instead without the consent of the dock owner. Ship damages dock during storm. b. Rule: Tortfeasor owes compensatory damages even in necessity situations. c. Reasoning: In cases of true need, the person in need will always choose to pay over losing life and limb. If you're not willing to pay for it, you're not in necessity. Compensatory damages discourage people from exaggerating necessity defense. Generally doesn't matter who has to pay though

8. Relation to Contributory Negligence: Raimondo v. Harding a. Facts: man ran out into the middle of the road, which would normally be negligent, but he was running away from robbers b. Rule: necessity is also a defense to contributory negligence c. Note: here necessity changes the standard for negligence in that situation, it does not excuse negligence d. Test: 3 conditions i. Emergency ii. No opportunity to deliberate actions iii. Reasonable person would have acted the same way under the circumstances Self Defense (not covered much)

1. Equivalence Rule

2. It is an Affirmative defense

3. Does not deny facts, changes relationship to mitigate liability

4. Similar to consent

2. Strict Liability a. Nuisance - exception to your rights on your property b. Abnormally Dangerous Activities: i. Strict Liability: for ADA, even if the utmost care is taken, the actor is still liable for any damage caused by the activity ii. Reasoning:

1. Due care is not sufficient to prevent accidents

2. We want to impose strict liability to force actors to internalize the costs or discover new methods to reduce risk

3. Activity Level: there is no way to prevent them and they are likely, we want them to reduce the amount that they do it or go somewhere else

4. Not criminal, just an allocation of costs argument - you play you pay iii. Test from R.2d SS 520:

1. Existence of a high degree of risk of harm

5 2. Likelihood that resulting harm will be great

3. Inability to eliminate risk through due care

4. Extent to which activity is not a matter of common usage a. Ex. driving a car

5. Inappropriateness of activity to place where it was done

6. Extent to which value of activity to community is outweighed by hazard a. Note this has been criticized by Koos v. Roth, which said it was too subjective (minority view though) iv. Harm within the Risk element - only strict liability for harms that are what make the activity abnormally dangerous v. Note: Negligence applies if the harm is outside the risk from the ADA vi. Spano v. Perini: Basic Rule - Blasting

1. Facts: blasting in NY, garage nearby was damage along with a car

2. Rule: When engaged in certain dangerous activities, strict liability applies. vii. Indiana Harbor Belt R.R. v. American Cyanamid Co.: Due Care Sufficient + No Alternatives

1. Facts: Toxic chemicals leaked from train while in a rail yard in Chicago. Due care would have prevented this leak.

2. Ruling: If due care is sufficient to prevent accidents and there is no alternative venue or method for the activity, it is not subject to strict liability.

3. Reasoning: Strict liability is a last resort when due care is not enough. viii. Siegler v. Kuhlman: Risk Outweighs Benefits + Evidence Problem

1. Rule: Gasoline Transportation on Highways is an ADA

2. Reasoning: a. Gasoline poses risk in any quantity, but transporting large amounts on roads is so dangerous that strict liability is justified over utility b. Problem: gasoline explosions on highways destroy the evidence needed to determine negligence ix. Airplanes:

1. First restatement said it was ultrahazardous, but it got safer so it's no longer so a. Exception: when something falls causing harm below

2. Boyd v. White: airplanes not ADA

3. Wood v. United Air Lines: Trespass a. Facts: midair collision causing damages to P's apartment b. Rule: no trespass as a matter of law in the absence to intention to invade land (no intent to crash) c. Vicarious Liability i. Different from Negligent Hiring and Negligent Supervision ii. Non-Business: child-parent, partner-partnership, etc. iii. Respondeat Superior - "let the master answer"

1. If employee (agent) torts P, then employer (principle) is also held liable when: a. Agent acts to further the will of the principle and agent's actions were foreseeable within the normal scope of employment (Ira S. Bushey) i. Broadway v. Kelly Brothers: There is no hard and fast space and time rule for frolic and detour. It is for the jury to decide whether the employee had left the scope of his employment at the time of the harm. Question of foreseeability b. Foreseeability can be reinforced if the employment made the harm more likely c. See Ira Bushy

2. Note: if the agent was found negligent, any precautions by the principle doesn't matter with regard to precautions, it's strict liability

3. Employer can indemnify the agent

6 iv.

v. vi.

4. Frolic and Detour: This doctrine exempts the employer from liability when the employee totally acts in a way inconsistent with his duties. There is a foreseeability component here too. a. Exception: sexual misconduct torts are never in furtherance of employment, see Doe v. Fulton-DeKalb Hospital Authority b. No uniform answer for intentional torts by employees

5. Borrowed Servants - contractors, who is an "employee" a. Charles v. Barrett: unless command is surrendered, an employee who is sent to another business to do work is under the sole responsibility of his original/primary employer (and thus they have vicarious liability) b. Morgan v. ABC Manufacturer: (modern trend) instead holds both liable since it is based on the right of control rather than actual control, and it is unreasonable to choose between a general and special employer based on these grounds

6. Independent Contractors: Sanford v. Goodridge: a. Test: if the one who has contracted out the work has the right to dictate the manner, means, and details of the service b. Question is whether the individual under contract possesses independence in the nature and method of performing the contracted work, i.e. has the hiring party relinquished the right of control that is normally enjoyed by an employer.

7. Policy: a. Helpful if employee is judgment-proof b. Employers can better insure (literally) c. Employer assumes the risk when hiring d. If specific employee is anonymous, easier to ID the employer (like Ybarra) e. Disperses loss across more people f. River Wear Commissioner v. Adamson: put liability on both servant and master to take advantage of deep pockets of the employer Ira Bushey v. U.S.: Scope of Employment - Foreseeable

1. Facts: Drunken sailor for coast guard came back to a drydock and caused damage.

2. Rule: Employer is liable if his employee's conduct was foreseeable within the scope of his employment and at least in part in purpose to serve the master. Employment made the harm more likely.

3. Reasoning: Even conduct that is contrary to the instructions of the employer is within the conduct of the employment because access was granted only due to employment (not a detour) and drunken sailors are predictable. Employer can better insure for actions of employee. Hern v. Nichols: for vicarious liability, the act must be done while in service to the master Schechter v. Merchants Home Delivery: Negligent hiring, supervision: If employer fails in his duty to hire competent personnel and supervise, train, and maintain that personnel, he can be sued directly for negligence in addition to being held vicariously liable.

1. Facts: hired a person with prior burglary conviction for home delivery job

3. Negligence a. Emergence: i. Forms of Action

1. Writ of Trespass: direct harm a. Basis for strict liability b. Question of Force c. Scott v. Shepherd: Natural and Probably Consequences i. Facts: Defendant threw a lighted squib into a market, it passed hands many times before ultimately causing harm to plaintiff


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