Torts Outline

Torts Outline

1. 5 Intentional Torts

   • Battery
     • Elements: 1) Intending to 2) make contact with another 3) that is harmful or offensive
       • Harmful: pain or bodily injury
       • Offensive: damaging to a reasonable sense of dignity
   • Assault
     • Elements: 1) intending to cause imminent apprehension 2) of harmful or offensive contact
       • Words alone are not enough; there needs to be an "overt act" by D
   • False Imprisonment
     • Elements: 1) intending to confine a person within boundaries set by the actor 2) confinement must actually occur 3) the person being confined is aware of the confinement or is harmed by it
       • Harm caused is fear or restriction of freedom to move or inability to do necessary tasks for well-being
       • Defenses: consent, operation of law, shopkeeper's privilege
   • Intentional Infliction of Emotional Distress (IIED)
     • Elements: 1) intentional conduct directed at P 2) that is extreme and outrageous 3) and causes the emotional distress 4) which must be severe
       • intent: 1) D desires to cause emotional distress 2) D knows with substantial certainty that P will suffer emotional distress 3) D recklessly disregards the high chance of emotional distress
   • Trespass
     • Conversion
       • Substantial interference with one's use or possession of property
         • D intended to take property
         • Ways to commit: 1) acquiring possession knowingly without permission 2) transfer to 3rd person 3) refusing to return property 4) destroying the property
     • Trespass to Land
       • Elements: 1)Intentional interference with 2) one's right to exclusive possession
       • Trespass to Land and Permission
         • A piece of property left on someone else's land after permission has expired
     • Trespass to Personal Property
       • Chattel - Interference with one's use of possession of property

2. 5 Defenses

   • Consent
     • Actual: verbal or written
     • implied: action in a certain situation
     • Invalidations for consent
       • 1. Fraud - consent secured through deceit, false pretenses or through omission is not legally valid
       • 2. Duress - Physical threats are legitimate forms of duress; economic threats are not
       • 3. Lack of Capacity
         • Minors
         • Mental disabilities that are temporary or permanent also diminish capacity
     • Doctrine of Informed consent
       • 1) Dr. fails to inform patient of material risk
       • 2) Causation - If a reasonable person wouldhave known about the risk, would he still have consented?
       • 3) The undisclsed risk caused the patient's injury
   • Self-Defense
     • A person is entitled to use reasonable force to preven harmful or offensive bodilty contact or to prevent false imprisonment
     • 2 questions to ask:
       • 1. Was the fear of bodily harm or injury reasonable under the circumstance?
       • 2. Were the means of force used reasonable?
         • Deadly Force
         • Non-deadly Force
           • Does not require a duty to retreat
   • Defense of Others
     • An intervening actor defending another person from harm when he is threatened
     • Same rules of self-defense apply
   • Defense of Property
     • Tortfeasor can use reasonable force in defending property, but not deadly force
   • Recovery of Property
     • Right to self-help by recovering property depends on promptness of recovery and reasonableness of force used
       • Deadly force is not allowed
       • Shopkeeper's privilege to false imprisonment
       • Privilege can only be invoked if property was wrongfully taken

3. A civil wrong committed upon a person or his property independent of a contract.

4. Negligence

   • 1) Duty
   • 2) Breach of Duty
     • 4 analytical devices used to determine breach of standard of care.
       • Hand Formula
         • If the burden of preventing a risk (B) is less than the probability of harm (P) multiplied by the gravity of harm (L), the standard of care has been breached [B<PL]
       • Reasonable Person
         • Knowledge
           • A reasonable person should know what he should know
           • A reasonable person has actual and constructive knowledge
           • Constructive knowledge is what someone should have known through reasonable diligence
         • Emergency
           • Because of a time and information deficit at the time of conduct, the standard of reasonableness changes
           • How would a reasonable person act under similar conditions?
         • Customs
           • A fairly well-defined, reasonable societal expectation of how people would act
           • "Industry Standard"
         • Physical Attributes
           • The relevant standard of care is altered to meet the tortfeasor's physical disability
           • What would a reasonable person with the same physical disability do?
         • Mental Attributes
           • Generally, not relevant in determining the standard of care in adults
         • Children/Minors
           • Age is relevant in determining the culpability of a reasonable person
           • General rule
             • Children age 5-7 years of age cannot be negligent
             • Older children, the standard of care is that of a reasonably careful minor of the same age experiences unless the minor's conduct was a dangerous adult activity
           • Illinois Rule
             • For children above age 14, there is a presumption of the adult standard, and the burden is on the minor to prove why the adult standard should not apply
             • • For children under the age of 14, there is a presumption of NO adult standard, and the burden is on the victim to prove why the adult standard should be applied.
         • Professionals
           • What would a reasonable person in that profession do?
         • Objective test: Whether an individual acted as a prudent person would under the circumstances without considering good faith or best judgment
       • Negligence Per Se
         • The relevant standard of care is established through a statute or regulation
           • Excuses: 1. incapacity 2. no actual or constructive knowledge 3. Impossible not to breach 4. Emergency not of one's own making 4. Compliance to the statute would create a greater risk of harm
           • A breach of the relevant standard of care may still be found even though there was compliance with a given statute.
       • Res Ipsa
         • 1) The harm causing thing is under the management or control of the D
         • 2) The thing that occurred does not ordinary happen if those who have management or control use proper care
         • 3) In the absence of explanation by the D
         • It's only a presumption and presumption can be rebutted
         • We admit we don't know what went wrong, but are willing to conclude that whatever went wrong was more likely than not the result of negligent conduct.
         • 3 different versions of Res Ispa
           • 1. It warrants an inference of negligence which the jury may drew or not, as their judgment. (Pro defendant)
           • 2. It raises a presumption of negligence which requires the jury to find negligence if defendant does not produce evidence sufficient to rebut the presumption (middle ground)
           • 3. It not only raises such a presumption but also shifts the ultimate burden of proof to defendant and requires him to prove by a preponderance of all the evidence that the injury was not caused by his negligence. (Pro Plaintiff)
   • 3) Causation in Fact
     • Actual causation
       • But for Causation
     • 1) Quantity of Proof
       • Did P prove/allege enough to satisfy the elements?
     • 2) Quality of Proof
       • Did D produce/conduct actual harm?
     • If one has a duty to another, and that duty is breached, such breach is not actionable unless it is a cause in fact of the harm
       • In fact - Substantial factor in bringing about the harm (does not mean the only cause)
         • The P has the burden of proving the casual link between the D's conduct an the harm (burden is preponderance of evidence; more likely than not)
   • 4) Proximate Causation
   • 5) Harm

5. Respondeat Superior - Principle that a person injured can sue a company if the employee who committed the tort:

   • 1) was acting withing the scope of employment
   • 2) intended to benefit the employer

6. Prime Facie

   • elements that must be established to prove cause of action