Torts

Cause in Fact

1. Not a question of unreasonable conduct (I.e., swinging sword through crowd but missing). Question of whether the unreasonable act caused the harm 2. Speculate: Would the harm have occurred if the defendant had been acting reasonably? ("But for") 3. Very problematic field: Interstate pile-up... who is responsible for the damage? 4. Very subtle line b/w cause in fact and proximate cause I. When there is more than one cause of harm, the substantial factor test is used. The substantial factor standard can be helpful in meeting the preponderance burden when you're not quite there. It requires that negligence need not be the sole cause, just a substantial factor in bringing about the injury. This concept often comes into play when there is more than one negligent actor, each of which is the but for cause (equally likely). Substantial factor will hold all negligent actors liable. Then it just becomes a question of the apportionment of the damages.

Mere evidence

"Just a guideline" Jury's job to determine if there was a duty, breach. The statute may help to reach a decision in determination of whether or not there is a breach of the duty. "You may, but need not..." Statute is one piece of the evidence determining if the defendant behaved reasonably. LA does not have strict negligence Per Se. We don't have a presumption. However, the statute still usually rules the case.

Patterson v. Kuntz

- Defense of Third Parties - the right of defending yourself can extend to defending the rights of others, but only to a sense that they have the right to defend themselves. - C.C. Art. 236: "Fathers and mothers may justify themselves in an action begun against them for assault and battery, if they have acted in the defense of the persons of their children" -Facts: Defendant shot his neighbor's son. Defendant had been harassed for over a year by a prowler who repeatedly invaded their privacy and looked through the window at his womenfolk. The defendant thought the neighbor's son was this prowler. - PP: Trial court judge ruled in favor of the defendant that the use of the deadly weapon was justified. - Issue/Ruling: Was the use of a deadly weapon unreasonable? Was this self defense of the family? Yes, it was - Decision: Yes - This case is not about defense of others, but also defense of self. He has a right to respond in a way that is reasonable. The prior existence of prowling makes this case more reasonable for using deadly force. - Plaintiff argued that prowler had never attacked before. Police officers said, however, that they should expect an attack - Preemption: Defendant did not have to wait for an attack since the prowler had been invading their privacy for such a long time - "Repeated harassments, intrusions and invasions of defendant's premises by the prowler were sufficient to cause a reasonably prudent man to believe that the invader intended bodily harm to his wife and daughter... under the circumstances, he was warranted in repelling the invasion by use of a deadly weapon" - If there was no history, was there an apparent threat to the family? It is enough to let a jury decide if deadly force was a reasonable response. Again, it depends on the unique facts and circumstances of each case. Notes to Paterson - Defense of Apartment Complex and Tenants: Byrd v. Isgitt (La. App. 3rd Cir 1976): Manager has duty to protect the premises and the other dwellers. o "Under the pressures and heat of the occasion"- Justified in self-defense even if the manager could have "accomplished both [the defense] without inflicting such painful injuries" on the person. Defense of Hotel Guests: a privilege of the innkeeper to use force to protect his guests Under negligence theory- there is a duty for landowners to provide a safe environment for tenants and renters. You must engage in reasonable conduct. But if you exceed that duty you may be responsible for a battery. They do not have a right to commit a battery to prevent loud noise. It has to be a reasonable apparent threat. Bystander assisting in resistance to an unlawful arrest. • State v. Lindsay (La. 1980): On appeal, the Supreme Court, Blanche, J., held that since no probable cause existed to arrest defendant for any crime, he had right to resist officer. -Torture? Restatement (Second) of Torts, Section 76: The actor is privileged to defend a third person from a harmful or offensive contact or other invasion of his interests of personality under the same conditions and by the same means as those under and by which he is privileged to defend himself if the actor correctly or reasonably believes that (a) The circumstances are such as to give the third person a privilege of self-defense, and (b) His intervention is necessary for the protection of the third person. Do you have a right to torture someone in justification of possibly defending a third party from an imminent threat of harm?

Dual Drilling Company v. Mills Equipment Investment, Inc.

- It doesn't matter if you are applying civil law notion of conversion or common law version. - All elements are met. - We shouldn't rely on common law and develop civilian law. Most are human problems and the solutions that humans reach are usually the same - The notion of conversion as a tort involves blameworthy conduct. There is a version of conversion that is without blame or without fault. But it might still be considered fault for purposes of 2315- every man is responsible for their fault. This is the article where ewe read common law f torts into LA tort law. There are some theories that don't have common law principles of fault. But general torts are a violation of 2315. We have mixed jurisdictions in LA. - We don't care about the difference between common law nad civilian conversion. - Liability or solidary liability (joint and several) liability means that a plaintiff v. 2 defendants that are solidary bound, the plaintiff can recover the first amount from a defendant. The plaintiff can get the full amount from either defendant. The first defendant than can sue the second defendant for whatever they can get. This is important in some cases when 1 person is bankrupt. IIED: (Fill in Tort) -Diagnosed condition, identify causes and trace the symptoms. There were injuries going uncompensated. - Where you don't have a battery assault or false imprisonment but there is a harm that is deserving of recovery - It requires harm (sever emotional distress) - There was a great reluctance of courts to recognize IIED. Cases fall into common fact patterns. Intention Infliction of Emotional Distress: What kind up upset deserves recovery? - Extreme/ outrageous conduct (repeated conduct) - Severe emotional distress - Intent to cause severe emotional distress (knows that she is specifically sensitive) - Causation Frequent types of cases: (Workplace scenarios- powerful v. powerless),(race cases),(preexisting conditions) (mishandling of corpses- loss or jokes), (shock jocks), (defamation) In 90% of cases there is expert testimony attesting to a diagnosable condition (but its not required formally).

Negligence

. Identify the specific negligent act and determine what is the cost of taking precaution to prevent that act? (Res Ipsa is the exception) 2. Risk Utility formula explains most of tort law and risk regulation. Restatement Sec 282: Negligence defined: "In the restatement of this subject, negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm"

gross conduct W. Negligence

. Unlike Intentional Torts negligence is an objective standard, we are measuring the conduct of the actor 3. Whether they knew, or reasonably should have known A. Common Law - elements 3. 1 - Duty . The duty of care A. Level of conduct that reasonable people are expected to meet B. Negligent Conduct alone does not create an action C. Custom A. If you didn't harm anyone it is not a tort 4. 2 - Breach 5. 3 - Causation . Actual Church finds this interesting a. Proximate we will struggle with this A. Asks - How far does that liability extend? A. How close is the related injury to the breach of duty 6. 4 - Injury B. Louisiana - we got it right it first ; we have the Duty/Risk Formulation of Negligence ; 3. 1 - Cause in Fact 4. 2 - Duty- reasonable care by reasonable person, custom . Traditional Duty - same as common law duty a. (3) Scope of the Risk - same as proximate cause ; we ask it as part of duty 5. 4 - Breach 6. 5 - Injury C. It is an objective standard ; injury is specifically required D. When you analyze the issue - you start with the elements 3. Problem is, the each element has a chapter associated with them and all of them have the different tests associated with them . Gets very in depth

Misuraca v. City of Kenner

. [Facts] 3. Told the people playing with the wire to stop ; he then tested it by touching it 4. Defendant City of Kenner ; they are vicariously responsible for the police officer 5. Plaintiff the wife of the deceased 6. Court was the Police Officer's conduct negligent??? . What should he have done? How should he have behaved? A. Trick Question he did what he was supposed to, reasonably A. There actually could have been an argument that he was negligent if he had done more to stop the 'idiots on the side of the road' a. Look at pg. 128 A. You have to identify a specific act of negligence A. Those are not particularly specific B. [Due Care / Reasonable / Breach / Risky Conduct/ etc. words you need to use on the exam] b. If you don't remember anything else from this class Remember this There is always some degree of Acceptable Risk A. Basic example - driving to school. Of course there is a risk there B. Tort Law tries to get this into a more concrete setting A. Liability when there is unreasonable risk.

Types of specific risks

1. "Causation specific risk"- see causation above 2. "This plaintiff"-plaintiff is not liable 3. "This defendant"- actor is absolved from consequences (usually an affirmative defense or immunity) 4. "These damages"- 5. "This manner"- do we want to impose liability for damages occurring in a particular manner? (fairness) Did damage occur in a manner they did not foresee? Should we hold them liable?

Intentional

1. Battery 2. Assault 3. False imprisonment 4. Intentional infliction of emotional distress 5. Property torts

Elements of negligence in Louisiana (civil law):

1. Cause-in-fact - "but for" and substantial factor standards (i.e. Did the negligent act ultimately cause the injury?) 2. Duty/risk- or reasonable care by reasonable person (a reasonable person is above average) Custom is another factor in proving duty • Traditional duty - measured by the reasonable person standard • Scope of the duty - foreseeability of risk of harm 3. Breach - failure to behave in a particular way 4. Injury - negligence requires a specific injury (Ex: physical, emotional, etc.) • Church suggests always using the Louisiana model, and then, in a brief paragraph, explaining the differences between the two. The current trend is moving toward the Louisiana model. The differences between the two are really only different in theory, not in practice. In Louisiana, scope of the duty is affected by factors such as foreseeability, ease of association, type of harm/need for compensation, deterrence, ability to bear the loss, precedent, and efficient administration of justice

Other Standards of Causation

1. Sec 432: a. Except as state in Sub 2 (b here), the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent. b. If two forces are actively operating, one because of the actor's negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor's negligence may be found to be a substantial factor in bringing it about

Custom

1. The T.J. Hooper (60 F. 2d 737 (2d Cir. 1932)) - Custom is a factor in considering liability, but it does not trump the reasonableness standard. The injury was a direct result of unseaworthiness (negligence). 2. Duty- exercise reasonable caution 3. Plaintiff cargo owners sued defendant owner of barges which sank in a storm, who then sued third-party defendant owner of tugs which towed the barges. The trial court found all the vessels unseaworthy, and held each tug and barge jointly and severally liable to plaintiff cargo owners. Both defendant and third-party defendant appealed. The court affirmed the judgment, holding that the barges were unseaworthy in fact and that their owner did not take reasonable means to make them seaworthy as required by its charter, since they could not withstand a coastal March gale, they leaked badly under the stress of weather, and their pumps were not properly inspected. The court also upheld the finding that the tugs were unseaworthy because they did not have receiving sets with which they could receive weather reports, even though such sets were not standard in the industry. 4. But for Causation- but for a radio, the injury would not have occurred.

Res ipsa

1. The injury is of the kind that doesn't ordinary occur in the absence of negligence 2. The evidence must sufficiently eliminate other more probable causes of the injury 3. The negligence of the defendant must fall within the scope of the duty to the plaintiff 4. The negligence of the defendant must fall within the scope of risk to the plaintiff 5. All other negligent, non-defendant possibilities have been ruled out sufficiently 6. Could reasonable minds differ on an explanation after all three criteria were met? a. Plaintiff must prove each element of the tort and his cause of action by a "preponderance of the evidence" b. Two levels of proof: Facts : Probability test 1. Evidence must be presented from which reasonable minds could conclude the existence of the facts which he contends give him a cause of action 2. I.e., what happened? 3. Proof: 1. Direct evidence - firsthand knowledge 2. Circumstantial evidence - knowledge of the circumstances from which, when combined with other circumstances, one reasonably could infer the existence of the fact 4. Judge's control: determines whether reasonable minds could conclude the existence of the facts from the circumstances ii. Whether the facts give rise to a tort : Fault 1. IE, do the facts constitute "fault" 2. Usually circumstantial: "could reasonable minds conclude from the circumstances that the defendant acted unreasonably? 3. Also sometimes called "Mixed question law and fact" 4. Judge's control: 1. Directed verdict or judgment notwithstanding the verdict Proof by Inference- "The thing speaks for itself" • Res ipsa is the common sense evaluation of the strength of circumstantial evidence. This occurs when a plaintiff cannot prove exactly what happened but can prove that circumstances existed from which reasonable minds could conclude that the defendant was at fault. The benefit the plaintiff receives from res ipsa is a jury instruction saying something like "you may but are not required to conclude negligence based on the circumstantial evidence." • Narrow class of cases where this incident would not occur except for the negligence. • "More probably than not" standard • There is no other way to have a certain situation without some kind of fault (Milk trout) • It helps the plaintiff in presenting a prima facie case of negligence when direct evidence is not available. Res Ipsa does not apply if there is sufficient direct evidence explaining the occurrence and establishing the details of the negligence charged. • Direct v. circumstantial evidence needs to be distinguished but the line is not always clear • When you win res ipsa you win a jury instruction. When you lose res ipsa you may get no or a cautionary instruction or "you must find a specific act of negligence about whether or not the conduct was negligent or not." • The giving of the instruction or the refusal of by a judge is a legal issue. On a appeal you can argue err in an appeal. You are more likely to get an appellate court to evaluate the case. • Does not create a presumption: "you may consider" or let the jury decide without instruction. • Res Ipsa applies to duty and breach- Cause just means what caused the incident 2. Res ipsa: the common sense evaluation of the strength of circumstantial evidence; could reasonable minds conclude that the defendant acted unreasonably or that the "thing" presented an unreasonable risk of harm?

Special Duties:

1. When courts state that a defendant owed a "high" or "the highest" degree of care to the plaintiff/ Say, when (still a duty of reasonable car, but its just a different standard) a. The plaintiff has little choice in whether to enter into a relationship with defendant b. The defendant's activity involves an unusually high risk of harm c. The defendant has superior control (over the risk of harm) d. The better societal policy is to spread the harm among those who participate in or benefit from the defendant's activity 2. Some courts reject this in favor of ordinary duty/risk (what this reasonable person would do under these circumstances 3. EG: Innkeepers, common carriers, utility company a. Galland v. NOPSI, 377 So. 2d 84 (La. 1979) - "the mere showing of an injury to a fare-paying passenger on a public conveyance and his failure to reach his destination safely establishes a prima facie case of negligence and imposes on the carrier the burden of exculpating itself of negligence" i. Injury must be "caused by an accident, occurrence, or condition attributable to the carrier ii. "highest degree of care; liable for slightest negligence" iii. Not the same standard if another passenger injures someone while on the common carrier > same as any other business b. Private carriers have same standard as ordinary businesses (guard against predictable risks... even if victim is not a paying customer 4. Levi v. Slemco (La. 1989) - Company employing high power lines must exercise "utmost care" in situations involving the electricity of the wires, but in other accidents not involving electrocution, it has only the reasonable care 5. Fiduciary duties sometimes (but they don't matter TOO much)

Reasonable Care - In general

2. Restatement Sec 283: Conduct of a Reasonable Man: Unless the actor is a child, Standard of conduct of actor to avoid being negligent is that of a reasonable man under like circumstances 3. Restatement Sec 284: Negligent Conduct: Act or Failure to Act a. "an act which the actor as A REASONABLE MAN SHOULD RECOGNIZE as involving an unreasonable risk of causing an invasion of an interest of another, or b. "a failure to do an act which is necessary for the protection or assistance of another and WHICH THE ACTOR IS UNDER A DUTY TO DO" 4. Restatement Sec 289 Recognizing Existence of Risk: actor required to recognize risk of his conduct while exercising a. The mental faculties that a reasonable person would have (in any situation) b. The SUPERIOR mental faculties that THAT person has (e.g., actor is expert in X, he has duty to see risk involving X) c. Mental faculties include: attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence, and judgment 5. Restatement Sec 290: Actor is required to know: a. Matters of common knowledge at the time and in the community b. Common law, legislative enactments, and general customs in so far as they are likely to affect the conduct of other persons 1. Misuraca v. City of Kenner La. App. 5th Cir. 2001 - 2. A driver lost control of his vehicle. His car left the roadway, clipped a telephone pole guy-wire, flipped over, and landed upside-down in the adjacent drainage canal. The police officer was the first road officer to arrive at the accident scene. As the officer approached the canal, he passed two men attempting to handle a disconnected guy-wire. The decedent yanked on the guy-wire. The wire came in contact with a live electrical line, and both men were electrocuted. The city did not articulate any social, economic, or political considerations surrounding the police officer's actions in handling the immediate investigation or securing the accident scene. Plaintiff widow brought a wrongful death and survival action against defendant city and police officer, alleging that the police officer was negligent in allowing the decedent to touch a guy-wire. The widow appealed from the order of the 24th Judicial District Court, Parish of Jefferson, State of Louisiana, granting the city's and officer's motion for summary judgment. Court of Appeal affirmed summary judgment. a. Officers owe duty to members of society in regulating traffic, but people owe a duty to obey officers. b. Plaintiff must prove that the conduct in question was a cause in fact of the resulting harm, and the defendant owed a duty of care to the plaintiff, the required duty ws breached by the defendant, and the risk of harm was in the scope of the duty breached. c. Government agencies are subjected to certain duties which may make them liable for a breach. b. The officer did have a duty to act reasonably in investigate the traffic accident and make sure the motorists were safe from harm. Did he breach this duty? No. c. Regulations are not always going to answer the question of negligence, there are always different circumstances in which reasonability must be applied. Ex. it might unreasonable for you to not exceed the speed limit if in the case of an emergency. d. Is there a rule or policy reason as to why Kenner would owe a duty to the plaintiff in light of the current circumstances? e. "Slip and Fall cases" Note 3. They key inquiry is, did they know there was a spill? Obviousness of condition or spill? Do stores have the duty to clean up all spills immediately? How long did the spill exist? If the spill is immediate they must exercise reasonable care to correct conditions. Or through the exercise of care, should they have reasonably known? d. Jones v. Congemi: Reasonable according to ordinary person standards, NOT according to regulations

Gross, Willful, Wanton Conduct: hybrid b/w negligent and intentional acts

A. Law generally treats all three types of behavior as "gross negligence" or, as another source said, aggravated negligence B. Extreme departure from ordinary care in circumstances in which a reasonable person would exercise heightened care 1. Shows: a. ACTUAL or DELIBRIATE intent to harm, or b. an UTTER INDIFFERENCE to or CONCIOUS DISREGARD for consequences 2. For a person's safety or the safety or property of others C. Why is it important? Created to justify -Punitive damage statutes: R.S. 9:2800.4 Landowner guilty only if he's guilty of gross negligence (or intentional damages) D. NO operative principle E. Necessary Requirements 1. "Complete neglect of the rights of others" 2. Extreme departure from ordinary care" 3. Want of even slight care F. Substantial certainty of harm v. risk of harm G. Burden on the plaintiff to prove but can only be proved by the conduct itself and the circumstances around the conduct.

Reasonable Response- What is a RR in a self defense context?

Dixon v. Wilson held that the defendant's, football player, involuntary reaction to being stabbed by plaintiff with a fork justified defendant punching her. The punch was justified because when there is an aggressive act, and the defendant may use only so much force as is necessary to repel the aggression.If he goes beyond, he may be liable. • Before deadly force can be used, it is necessary that the party using deadly force make every effort to retreat, unless retreating presents an unreasonable risk of harm. (Ex: turning your back on someone with a gun) There is no duty to retreat before using deadly force when you are in your home. • While you may use deadly force to protect yourself or others, under the doctrine of preemptive action you may not use deadly force to protect your property. (Ex: You cannot shoot someone trying to steal your car.) • Size of aggressor is not determinative: trial court best determiner of facts Problems with these statutes: Uncertain language that creates the illusion that you have the right to use deadly force to defend your property. It extends the right to defense of property as well as the defense to others. But what kind of property rights do you extend it to? • Duty to retreat: o Restatement §65(2): self defense exists "although the actor correctly or reasonably believes he can safely avoid the necessity of so defending himself by a. retreating if he is attacked within his dwelling place b. permitting the other to intrude upon or dispossess him of his dwelling place or c. abandoning an attempt to effect a lawful arrest. This provision conflicts with 65 (3) which holds that the privilege of self defense by deadly in inapplicable if retreat is possible. o "Stand your ground law" Restatement §65(2), Comment g. Standing one's ground:"one whom another threatens to attack may stand his ground and repel the attack with reasonable force which does not threaten death or SBH, although he realizes that he can safely retreat and so avoid the necessity of using self-defense force." But if you are attacked with a deadly weapon, you should try to escape the situation first before retaliating. Thus: Don't have to flee as long as deadly force isn't used • Exception: Can stand ground AND use deadly force if in one's dwelling place • §19. Use of force or violence in defense o The use of force or violence upon the person of another is justifiable when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person's lawful possession, provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this Section shall not apply where the force or violence results in a homicide. o For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of force or violence was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur:(1) The person against whom the force or violence was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.(2) The person who used force or violence knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred. o C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using force or violence as provided for in this Section and may stand his or her ground and meet force with force. o D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used force or violence in defense of his person or property had a reasonable belief that force or violence was reasonable and apparently necessary to prevent a forcible offense or to prevent the unlawful entry.(you can't consider the possibility of retreat- conveyed in instructions to jury) This is a problem for juries, It is difficult to determine reasonableness without a duty of retreat. Church: they should not even be instructed upon the issue of retreat. §20. Justifiable homicide: A homicide is justifiable: - When death or harm is imminent - In the interest of preventing a felony, harm or death - Protecting one's property from burglary, unlawful force, unlawful entry - In defense of a third party or child (1) When committed in self-defense by one who reasonably believes that he is in imminent danger of losing his life or receiving great bodily harm and that the killing is necessary to save himself from that danger. (2) When committed for the purpose of preventing a violent or forcible felony involving danger to life or of great bodily harm by one who reasonably believes that such an offense is about to be committed and that such action is necessary for its prevention. The circumstances must be sufficient to excite the fear of a reasonable person that there would be serious danger to his own life or person if he attempted to prevent the felony without the killing. (3) When committed against a person whom one reasonably believes to be likely to use any unlawful force against a person present in a dwelling or a place of business, or when committed against a person whom one reasonably believes is attempting to use any unlawful force against a person present in a motor vehicle as defined in R.S. 32:1(40), while committing or attempting to commit a burglary or robbery of such dwelling, business, or motor vehicle. (4)(a) When committed by a person lawfully inside a dwelling, a place of business, or a motor vehicle as defined in R.S. 32:1(40), against a person who is attempting to make an unlawful entry into the dwelling, place of business, or motor vehicle, or who has made an unlawful entry into the dwelling, place of business, or motor vehicle, and the person committing the homicide reasonably believes that the use of deadly force is necessary to prevent the entry or to compel the intruder to leave the premises or motor vehicle.(b) The provisions of this Paragraph shall not apply when the person committing the homicide is engaged, at the time of the homicide, in the acquisition of, the distribution of, or possession of, with intent to distribute a controlled dangerous substance in violation of the provisions of the Uniform Controlled Dangerous Substances Law. B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur: (1) The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle. (Church: this is a limited defense) (2) The person who used deadly force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred. C. A person who is not engaged in unlawful activity and who is in a place where he or she has a right to be shall have no duty to retreat before using deadly force as provided for in this Section, and may stand his or her ground and meet force with force. D. No finder of fact shall be permitted to consider the possibility of retreat as a factor in determining whether or not the person who used deadly force had a reasonable belief that deadly force was reasonable and apparently necessary to prevent a violent or forcible felony involving life or great bodily harm or to prevent the unlawful entry.

The Specific Risk

Do we want to impose liability on this actor? i. A specific risk is selected so that societal policies can be balanced ii. 2 major categories 1. Causation- "but for" the actor's conduct the victim would not have suffered a loss. Was it a substantial factor in the loss? 2. Affirmative defenses- defeats tort recovery for plaintiff (consent, timely manner, contributory negligence, tort immunity) Applying tort law must decide whether the greatest good for the greatest number dictates that the loss should be transferred from the actor to the victim or if it should stay where it is.

Fricke v. Owens Corp

FACT: The foreman of a mustard mill persuaded the older superintendent to let him descend a ladder to rescue another employee who was lying unconscious at the bottom of a deep tank. Toxic mustard gases in the tank killed the employee and caused brain damage to the foreman. PP: The foreman's wife and curators and the employee's heirs filed an action for damages against the employer, the owners of the plant, and the superintendent, alleging that the injuries occurred because the superintendent knowingly exposed the employees to the vapors. The trial court granted the defendants' motion for summary judgment. The appellate court reversed. The defendants appealed. ISSUE: Does consent bar recovery to alleged intentional harm? Worker's comp? does it fall into an intentional tort RULE: All intended wrongs have in common the element that they are inflicted without the consent of the victim. Consent ordinarily bars recovery for intentional interferences with person or property. It is a fundamental principle of the common law that "volenti non fit injuria," to one who is willing, no wrong is done. ANALYSIS: The court asserted that the plaintiff's were correct in applying the definition of a battery to the facts of this case. n order for the actor to be liable for an intentional tort, it is not necessary that he intend to inflict actual damage or that his intention be malicious. It is sufficient if the actor intends to inflict either a harmful or offensive contact without the other's consent. The question however, according to the court, was whether or not the plaintiff consented to the contact. The court held that there was no genuine dispute of material fact and that the defendants were entitled to judgment as a matter of law. The court held that reasonable minds must have concluded that the foreman consented to whatever offensive or harmful contact that the superintendent desired or believed to a substantial certainty would befall him when he descended to rescue the employee. The court found that the foreman and superintendent did not know that the tank contained vapors or what had felled the employee to the bottom. CONCLUSION: The court reversed the judgment of the appellate court and reinstated the summary judgment dismissing the action of the wife, curators, and heirs against the employer, superintendent, and owners. There is no genuine issue of material fact do the action is dismissed- not worth going to trial because there is no intent exceeding the scope of the intent given. It was a mutual mistake, no one knew the contact was dangerous Must match the consent with the contact that forms the basis of the - knowledge of harmful contact Consent given Mutual mistake Scope of consent

Dickens v. Puryear

FACTS: PROCEDURAL POSTURE: Plaintiff victim filed suit against defendant perpetrators after the male perpetrator beat up the victim upon learning that the victim had shared sex, alcohol, and marijuana with the perpetrators' daughter. The facts if the case showed that the case qualified as assault and battery. The Wake Superior Court (North Carolina) granted summary judgment to the perpetrators on ground that the suit was time-barred (assault and battery charges must be brought within one year), and the judgment was affirmed by the Court of Appeals. The victim sought review by the state's highest court on the grounds that the complaint should be cast as intentional infliction of mental stress and that he could prove his case in court. ISSUE: Can the plaintiff prove any factual showing on the motion to support a claim for intentional infliction of mental distress thereby warranting the reversal of the summary judgment? Should the summary judgment be reversed and the defendants tried for intentional infliction of mental distress? RULE 1) The movant for summary judgment must clearly demonstrate the lack of any triable issue of fact and entitlement to judgment as a matter of law. 2) The one-year statute of limitations, N.C. Gen. Stat. § 1-54(3), applies to "libel, slander, assault, battery, or false imprisonment." The tort of intentional infliction of mental distress is none of these things. No statute of limitations addresses the tort of intentional infliction of mental distress by name. It must, therefore, be governed by the more general three-year statute of limitations, 3)The interest protected by the action for battery is freedom from intentional and unpermitted contact with one's person; the interest protected by the action for assault is freedom from apprehension of a harmful or offensive contact with one's person. The apprehension created must be one of an immediate harmful or offensive contact, as distinguished from contact in the future. In order to constitute an assault there must be an overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another. 4)Threats for the future are simply not present breaches of the peace, and so never have fallen within the narrow boundaries of assault. Thus threats for the future are actionable, if at all, not as assaults but as intentional inflictions of mental distress. ANALYSIS: Justice Exum disagrees with the lower courts that the summary judgment supports "only a claim for assault and battery." The court believes that the plaintiff may be able to demonstrate a triable issue of fact that he has suffered intentional emotion distress, an actionable tort. The court found that the threat of death (to go home pack his bags and leave the state) made by Earl Puryear towards the plaintiff was not an "Immediate threat." It was a threat for sometime in the future. The threat did not constitute a threat of "imminent harm" and therefore would not qualify under the definition of assault. A mere threat, unaccompanied by an offer or attempt to show violence, is not an assault. Threats for the future are simply not present breaches of the peace, and so never have fallen within the narrow boundaries of assault. Thus threats for the future are actionable, if at all, not as assaults but as intentional inflictions of mental distress. CONCLUSION: The lower court's ruling that affirmed summary judgment in favor of the male perpetrator was reversed on grounds that the plaintiff produced triable issue of fact concerning the ability to prove intentional emotional distress at trial. The case was remanded to proceedings against Earl Puryear based on this ruling. Notes on case: There was battery and assault, false imprisonment, but which theory? Intentional infliction of emotional distress IIED. There is an intent to create the reasonable apprehension of an imminent battery. Statute of limitations has expired for intentional torts so he is claiming IIED- Protecting your freedom from emotionally distress. Because there is a future threat, it is not an imminent threat. "this is a fill in tort meant to fill in gaps.

White v. Monsanto Company

FACTS: Irma White, P, an employee in Monsanto Company's labor pool for several years, was temporarily assigned to work in the canning department under the supervision of Gary McDermott. After White and three other employees had begun an assigned task, it became apparent that they could not continue without safety equipment. While waiting for the equipment, White occupied herself by cleaning the area while the others remained idle. Upon learning that certain employees were idle, McDermott confronted White and her co-employees, verbally chastising them with profane language 2 and threatening to terminate their employment. 3 Shortly after the incident, White experienced "tightness and pain in her chest, pounding and pain in her head, and appeared to be in shock." 4 White was hospitalized for two days and diagnosed as having suffered an acute anxiety reaction. PP: White brought suit in state court against McDermott and Monsanto Company for intentional infliction of emotional distress. A jury found McDermott and Monsanto Company liable in solido and awarded White $ 60,000. 6 The Louisiana Court of Appeal for the Fifth Circuit affirmed. 7 On appeal, the Louisiana Supreme Court held that Louisiana law recognizes an independent action for intentional infliction of emotional distress as defined by the Restatement (Second) of Torts, but reversed because the facts did not support a finding of liability. ISSUE: Was there intent to cause severe emotional stress? Was the act alleged by the plaintiff tortious? Has the plaintiff proved her cause of action of an alleged intentional tort of intentional infliction of emotional distress thus allowing her to recover damages? RULES: 1.La. Rev. Stat. Ann. § 23:1032 makes worker's compensation an employee's exclusive remedy for a work-related injury caused by a co-employee, except for a suit based on an intentional act. 2.The meaning of "intent" is that the person who acts either: (1) consciously desires the physical result of his act, whatever the likelihood of that result happening from his conduct; or (2) knows that that result is substantially certain to follow from his conduct, whatever his desire may be as to that result. Thus, intent has reference to the consequences of an act rather than to the act itself. Only where the actor entertained a desire to bring about the consequences that followed or where the actor believed that the result was substantially certain to follow has an act been characterized as intentional. 3. The exclusive remedy rule is inapplicable to intentional torts or offenses. The meaning of intent in this context is that the defendant either desires to bring about the physical results of his act, or believes they were substantially certain to follow from what he did. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result 4.In Louisiana, one who by extreme and outrageous conduct intentionally causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily HARM 5. In order to recover for intentional infliction of emotional distress, a plaintiff must establish: (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. ANALYSIS: When an employee seeks to recover from his employer for an intentional tort, a court must apply the legal precepts of general tort law related to the particular intentional tort alleged in order to determine whether he has proved his cause of action and damages recoverable. In other words, the court must apply the legal precepts of general tort law related to the intentional tort alleged. "The one-minute outburst of profanity directed at three employees by a supervisor in the course of dressing them down for not working as he thought they should does not amount to such extreme and outrageous conduct as to give rise to recovery for intentional infliction of emotional distress." The Court also decided that McDermott had no knowledge that the plaintiff was particularly susceptible to emotional distress and that his outburst was not meant to cause emotional distress of a sever nature. CONCLUSION: the judgments of the lower courts are reversed

Stephen K v. Roni L

FACTS: Cross-defendant mother, her minor child, and a guardian ad litem brought a paternity suit against cross-plaintiff father. After admitting paternity, cross-plaintiff filed a cross-complaint for fraud, negligent misrepresentation, and negligence, alleging that cross-defendant had falsely represented that she was taking birth control pills, and that in reliance upon such representation, he engaged in sexual intercourse with her. Cross-plaintiff alleged that as a proximate result of cross-defendant's conduct, he had become obligated to support the child and had suffered mental agony and distress. Cross-plaintiff also sought punitive damages ISSUE: Does false represntation vitiate consent? OUTCOME: The trial court treated the motion as a general demurrer to the cross-complaint and ordered the action dismissed. The court affirmed the judgment. As between two consenting sexual partners, cross-plaintiff could not hold cross-defendant liable in tort for the birth of a child conceived in an act of intercourse where he relied on cross-defendant's false representation that contraceptive measures had been taken. The court found that, for public policy reasons, the court should not interfere. HN1 Such wrongs as betrayal, brutal words and heartless disregard of the feelings of others are beyond any effective legal remedy and any practical administration of law. To attempt to correct such wrongs or give relief from their effects may do more social damage than if the law leaves them alone. Concerning the tort of misrepresentation in this case, the court asserts that asking the court to supervise the promise between 2 consenting adults in the realm of private sexual conduct encourages an unwarranted governmental intrusion into an individual's right to privacy. They also state that there was no good reason as to why the plaintiff could not have taken precautionary measures himself. Defendant: My consent was exceeded because I consented to sex, but not sex without birth control. It was a different type of contact. e. Failure of Consent: i. Misrepresentation: Stephen K. v. Roni L. (Cal. App. 2d Dist. 1980) A. Misrepresentation of birth control B. Court doesn't provide remedies for every kind of wrong. ii. Fraud is ordinarily a defect to consent A. Not for claims involving sexual conduct; EXCEPTION: iii. Duty to disclose information A. E.G. STD: La. R.S. 40:1062: unlawful to infect another in any manner with an STD or to do any act which will expose another to infection with an STD. B. Duty to people aware of the infection and third parties (e.g., employers) who could have prevented the spread. C. Duty to inform spouses as well. D. Treatment sufficient to establish knowledge of condition, not diagnosis. E. No strict negligence iv. Mistake: A. Consent grounded on mistake induced by the defendant is defeated, but mutual, reasonable mistake does not defeat consent. In other words, both parties make a mistake then the consent defense is still valid B. Mistake about collateral matters does not defeat consent. v. Duress "The Godfather" deal A. Consent is defeated definitely when there's threat of bodily harm, or duress. But what if there is none? B. Sexual harassment cases B. Economic and Tangible should be considered C. Threat of loss of employment? Meritor Savings Bank v. Vinson:(477 US 57): Sexual duress counts vi. Incapacity: Minors- mostly policy judgment (we shift the burden to the other party who is capable of making consent.) A. Doe v. Jeansonne (La. App. 3rd Cir. 1997): Girl's consent was vitiated because of her age B. L.K. v Reed: 13-year-old, mildly retarded girl's consent vitiated by "family stress, coupled with her age, intellect, and social skills, rendered her consent, from a legal standpoint, almost meaningless" C. Turner v. Bucher (La. 1975): Only minors beneath the age of discernment are not liable for their fault. Code articles about children: 1. 1785: The obligation arising from an offense or a quasi offense is also binding on the minor." 2. 1874: He [a minor] is not relievable against obligations resulting from offenses or quasi offenses 3. 2227: He is not restituable against obligations resulting from his offenses or quasi offenses vii. Illegal Acts: pg. 78 Note 8 A. La. bars loser in an illegal fault from suing. Some jurisdictions bar winner from using consent as a defense. B. Illegal gambling: What public policies? C. Cases can be split- if you consent to be involved in a prizefight, you consent and there is no action. Other jurisdiction say the sonsent is not valid because it is illegal. D. Illegal gambling? E. Rule in La- consent is valid even if it consent to participate in an illegal act. Necessity (pg 79)- true defense: no tort involved - Private v. public - Usually applies to destruction or trespass of land or property. If public, the public has to provide compensation. Under the 5th amendment, just compensation was due. It has been expanded today. The city or state should pay compensation for damage done. - Private= the individual that takes the action has to pay. If you destroy land or property you should pay for the damage done if even in necessity. - You have a right to trespass if it is a trespass of necessity. - Public necessity used to not always require compensation. Almost all cases require compensation today. - Private necessity is a common law term. But we do have a complex set of rules governing water bodies.

Compuserve Inc. v. Cyber Promotions Inc

FACTS: Cyber promotions has been sending unwanted spam advertisements to the subscribers of the plaintiff, Compuserve. Compuserve has asked defendant to stopped and has tried to create protections and barriers against future spam emails. Cyber promotions refuses to stop sending spam and the protections fail to keep the spam for being sent to subscribers. PP: Compuserve is seeking a preliminary injunction which would extend the duration of the temporary restraining order issued by the Court and would in addition prevent defendants from sending advertisements to subscribers. ISSUE: Does the plaintiff have a viable claim for trespass to personal property in which they would be able to seek injunctive relief? RULES: The tort of trespass to chattel is subject to liability if the intermeddling is harmful to the possessors materially valuable interest in the physical condition, quality or value of the chattel, or if the possessor is deprived of its use for a time or another legally protected interest is affected. HN9 Recovery may be had for a trespass that causes harm to something in which the possessor has a legally protected interest. Was the damage sustained by the plaintiff sufficient to qualify as a trespass to chattel and thus allow the plaintiff to receive injunctive relief? ANALYSIS: The court held that because the provider had demanded that the company stop sending e-mail to its customers, and the company deliberately evaded the providers' efforts to protect its computer equipment from such use, the provider had a viable claim against the company for trespass to personal property and was entitled to injunctive relief to protect its property. In so holding, the court found that (1) electronic signals generated and sent by computer were sufficiently physically tangible to support a trespass claim; (2) the value of the equipment used by the provider was diminished as a result of the company's conduct. The court also ascertained that the defendant's possession of the chattel was intentional. The defendants dispossessed the plaintiffs in a sense that the intermeddling of the system is actionable even though the physical condition was not impaired. For example, the utility of the service was impaired because of the flooding of junk email, subscriptions were cancelled and the physical equipment was strained.(result) One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if, (a) he dispossesses the other of the chattel, (b) the chattel is impaired as to its condition, quality, or value, (c) the possessor is deprived of the use of the chattel for a substantial time, or (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest. - None of these really occur here but, they were in a place wihere they shouldn't have been (This case was atypical because there was intent and no permission- harm was a harm to goodwill.) CONCLUSION: Plaintiff suffered many types of injuries or results from the defendants conduct. The damage sustained is sufficient to sustain and action for trespass to chattel. The injunction was granted. Notes: You need intent and interference (harm) with use and enjoyment. What's the basis for the interference here? The customer owns the system in this case. Normally you could argue that the customers have a trespass with the unwanted email. Was the email slower and was the system impaired at all? We have no indication on how much power was drained. The property is the Compuserve system, not the email accounts. But there is no trespass here, it is a nuisance, because there is no real impairment. However, the value has been affected. They are using the system in a way they are not authorized to use. There is one thing Compuserve has to do in order to make it a chattel: they have to ask them to stop. At this point, CyberServe has the intent. There is a policy trade off that makes it sound like a nuisance. "Federal Can Spam Act"- federal regulatory statute. It doesn't allow private entities to file.

Herrin v. Sutherland

FACTS: Defendant was hunting on the plaintiff's land without his permission. Defendant was firing his gun over plaintiffs house and cattle thus disturbing his peace and quiet. PP: Plaintiff landowner filed a complaint against defendant alleged trespasser in the District Court of Lewis and Clark County (Montana) and alleged damage to his property as a result of the trespasser's wrongful actions (firing of his gun over land). The trial court entered a judgment in the landowner's favor in the amount of one dollar per cause of action and the trespasser appealed. I: Can a person a person be liable for a trespass to land by launching a projectile into the air above another's land? RULE: The air space, at least near the ground, is considered private property of the owner of the land. Therefore, anything entering the airspace without the permission of the landowner is considered a technical trespass in which nominal damages may be recovered. ANALYSIS: The court held that the defendant was guilty of a technical trespass and liable for damages based on these claims: "Where one stands upon the land of another while hunting and fires a shotgun over the premises of a third, he interferes with the quiet, undisturbed and peaceful enjoyment thereof by the latter and is at least a technical trespasser." "The air space, at least near the ground, is almost as inviolable as the soil itself." A shotgun is a firearm of short range and thus constitutes a reasonable claim of concern, especially when fired over one's house and cattle. CONCLUSION: A cause of action is stated for nominal action at least. Notes on case: Policy accommodations: The court intentionally did not put an exact limit on airspace for airplanes. The court wants to encourage air travel. Even though the standard for trespass to land extends all the way to heaven in hell, there are some practical limits. For example you cannot sue an airline because it would stifle economic development. Fracking- is there a trespass? Technically. Some landowners win and others don't but oil and gas are essential to economic activity. Why do we have dignitary cases? To establish a precedent that objects that flow through can be a trespass. The plaintiff now has a case on the books. It can be easier to get trespassers to stop. There needs to be a physical entrance in order to qualify as a trespass. Nuisance: property based tort just like trespass to land but is created for the purpose of settling neighborhood disputes. There are competing legitimate uses based on the Obligations of Neighborhood. A neighbor has to accept the normal things that occur in a neighborhood. In this tort you look for a substantial interference or invasion. This theory is a balancing test and is very fuzzy. Many courts will morph the trespass theory into a nuisance tort. Trespass to land can apply to children because they have the intent to enter. But what if a child is injured on someone else's land: attractive nuisance (train tracks)- there are certain things that kids are attracted to- we are moving closer to a negligence theory. There are cases where a duty is owed to trespassers. Owner knows children may be trespassing so they must exercise a degree of care. Conversion and Trespass to Chattels - Often a matter of degree or how substantial was the interference with the property - Use conversion and trespass to chattel together - Only difference between the two is the money damages - Conversion- trespass with ownership - Chattel- trespass to use and enjoyment - Intentional interference with movables - Remedy for a conversion is the full price of the property o Extent and duration of control o Defendant intent to claim a right to property o Defendants good faith o Harm done o Expense or inconvenience caused - In a trespass to chattel case, the plaintiff must actually prove that he has suffered damages. - can be transferred to assault or battery if you can prove the elements.

Funeral Services by Gregory Inc. v. Bluefield Community Hospital

FACTS: Mortician, who embalmed corpse while unaware that it was infected with Acquired Immune Deficiency Syndrome (AIDS), and his wife brought action against hospital and physician, alleging battery, intentional and negligent infliction of emotional distress, and intentional and negligent misrepresentation. The Circuit Court, Mercer County, David W. Knight, J., dismissed claims, and mortician and wife appealed. Lower courts granted a summary judgment saying that the battery claim had to be dismissed because the facts alleged did not constitute a battery (or there was no touching). ISSUES: Does this case constitute a battery? Should the plaintiff be allowed to recover? Can a plaintiff collect damages in terms of simply having a fear of contracting a disease when there is no exposure? RULE: An action, even when it involves offensive touching, must be intentional for the action to be considered a battery. Intent means, "the actor desires to cause the consequences of his act or is substantially certain that the consequences will result from it." Damages cannot be awarded based solely on a fear of contracting a disease and no exposure to said disease. Damages sought solely based on a fear are unreasonable and are not considered a compensable injury. ANALYSIS: Although the court does allow damages to be recovered for emotional distress as a result of battery action, there was no battery performed. A battery involves intention, an element of which the plaintiff does not allege against the hospital. The allegation of negligence against the defendant may have been more appropriate. In terms of the plaintiff's ability to recover, the court held that "before a recovery for emotional distress damages may be made doe to a fear of contracting a disease, there must first be exposure. If there is no exposure, damages will be denied." There has to be a pathway for the disease. It opens up the floodgates for AIDS people. CONCLUSION: Affirmed. The trial court was correct in dismissing the battery allegation. The Supreme Court of Appeals, Brotherton, J., held that: (1) defendants' conduct in exposing mortician to intimate physical contact with bodily fluids and tissues of AIDS-infected corpse, without his knowledge or consent, did not constitute "offensive touching" sufficient to support claim of battery; (2) fear of contracting AIDS, in absence of actual exposure to virus, will not be recognized as legally compensable injury; and (3) claims for negligent and intentional infliction of emotional distress were governed by one-year statute of limitations. Notes on Case: THE HOSPITAL FORGOT. NEGLIGENCE DOESN'T HELP GREGORY BECAUSE IT HAS EXPRIED. IT HAS TO BE A BATTERY FOR HIM TO CLAIM DAMAGES. There was consent to touching the body. Does consent go to the prima faciae issue? Yes. The plaintiff did consent so it is a different kind of touching which may make it harmful or offensive because the body was contaminated. That is what converts the consent. Lower court- no "touching." He consented to the dead body, but did not consent to contact with an infected body. You have to have the appropriate proof of intent. This case fails in the intent. Did the hospital have knowledge or purpose to a substantial certainty? How do we match intent with contact? You have to have purpose or knowledge of a sub certainty that the plaintiff would have contact with the infected corpse. Plaintiff bears the burden of proof, he would have to prove that the hospital knew to a substantial certainty. The court is mixing the "fear of" cases or pinprick cases (there has to be a pathway for the disease)- the needle has to actually prick the skin. It has to be more than just a "fear of." The distinction must be made between knowledge of a risk and knowledge of a sub certainty. Again, this is the plaintiff's burden. Procedural Problems in a tort case: ELEMENTS OF CLAIM ARE IMPORTANT!!! Motion to dismiss Summary judgment: Is there a general issue of the material of the fact on the motion? Towards the opposite person to bring the appeal? In an appeal, Usually the lower court dismissed a claim because they applied the wrong standard of law. Lets apply the proper low correctly. Legal error- can happen in jury instructions. Motion to order a new trial Jury delivers a wrong verdict

Parvi v. City of Kingston

FACTS: Police officers for the Defendant City of Kingston took custody of Plaintiff- Parvi, who was intoxicated, and drove him outside the city limits instead of arresting him because he declared that he had no where else to go. After he was deposited on a golf course, Plaintiff found himself on the New York Thruway, where he was struck by a car and injured. Although he had little or no recollection of the entire evening, Plaintiff sued for false imprisonment. PROCEDURAL POSTURE: Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered March 10, 1976, which, by a divided court, affirmed a judgment of the Supreme Court in favor of defendant City of Kingston, entered in Ulster County upon a decision of the court at a Trial Term (John T. Casey, J.), dismissing the complaint at the close of plaintiff's case. ISSUE: Scope of the privilege: Do the facts of the case meet the four elements of a false imprisonment? Does a harm come as a result of the false imprisonment? Was the privilege of arrest a false imprisonment? (at the point of getting in the car, no it wasn't a false imprisonment.) RULES: 1) To assert a claim for false imprisonment, the plaintiff must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged. 2) False imprisonment, as a dignitary tort, is not suffered unless its victim knows of the dignitary invasion 3) Generally, restraint or detention, reasonable under the circumstances, and in time and manner, imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property in one's lawful possession or custody is not unlawful. 4) Where the privilege is based upon the value attached to the interest to be protected or advanced by its exercise, the privilege protects the actor from liability only if the acts are done for the purpose of protecting or advancing the interest in question. ANALYSIS: Elements 1 and 3 of the case are fulfilled. The plaintiff did not consent to the detainment and the police intended to confine the plaintiff because he was being arrested. The lower court dismissed the case because it found that the plaintiff was not conscious of the confinement because he did not remember. The Court however found the plaintiff had an "existence of consciousness at the time the imprisonment itself took place." For example the officers describe Parvi's responsiveness to the command that he get in the car and that he name a place to be dropped. Lastly, the court addresses the 4th element, the privilege of arrest. The court states that normally police officers have the privilege of arrest. However in this case, the court distinguishes that "it is clearly not privileged to arrest such a person for the sole purpose of running him out of town..." Because under the plaintiff's theory, "the false imprisonment count does not rest on the reasonableness of the police officer's action but on whether unwilling confinement of the plaintiff was the result of an arrest for a nonjustified purpose."(they are liable b/c they put them in a place they didn't want to be. This is an expansion of liability). CONCLUSION: order of the Appellate Division reversed, both causes of action reinstated and a new trial ordered. Notes: - Conditional privilege: they can arrest someone when they normally wouldn't be able to. Privilege is conditional because it is not absolute (amendments)

Leichtman v. WLW Jacor Communications Inc.

FACTS: Radio talk show guest Leichtman (an antismoking advocate) sued radio talk show hosts and radio station for battery, invasion of privacy, and violation of municipal regulation making it illegal to smoke in designated public places. Guest alleged that he was invited to appear on talk show to discuss full effects of smoking and breathing secondary smoke and that, at host's urging, second host lit cigar and repeatedly blew smoke in guest's face. PROCEDURAL POSTURE: The Court of Common Pleas, Hamilton County, dismissed action for failure to state claim on which claims can be awarded (12b6). You have to plead and prove every element. The tort of battery did not exist. Contact did not exist. Smoke did not meet the requisite contact required for battery. Guest appealed. The Court of Appeals held that: (1) guest stated claim for battery; (2) guest failed to state claim for invasion of privacy; and (3) there is no private right of action for violation of municipal regulation. ISSUE: Even though the act was trivial, was it battery? Is WLW, the employer, liable? RULE: A person is liable for battery if that person commits an act of "contact which is offensive to a reasonable sense of personal dignity." An offensive act is battery if it is "disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness." Under the doctrine of respondeat superior (vicarious liability), an employer can be liable if an "employee is acting in the scope of employment." ANALYSIS: First and foremost the court had to determine whether or not a battery had occurred. Applying the definition of battery, the court ruled that the act of blowing smoke at the plaintiff was both "offensive" and had "the physical properties of making contact." It also noted that every battery is "actionable" even though it may be trivial. The "substantial certainty" prong of intent was not addressed because Leichtman had made it clear in his complaint that the act was deliberate. The Court also addressed the issue of employer liability. Normally, an employer is not liable for the individual torts of its employees unless those employees were acting "within the scope of their employment," as they were found to be in this case. The court went on to say that another form of minor dispute resolution needs to adopted so that courts may focus on more serious and important cases. Courts are unwilling to "open the floodgates" so it is a very careful appellate opinion. CONCLUSION: It was ruled in the trial court that the plaintiff's allegation of facts did not constitute a battery. The ruling was reversed because the facts, although trivial, demonstrated an "offensive contact" by the defendants on the plaintiff. The case was remanded to be retried only on that basis of that ruling

Cole v. State of LA

FACTS: The officer was a member of a tactical unit that was trained to take charge of any situation involving inmate riots. The officer was injured during a training exercise when other officers beat him with unpadded batons. PP: Plaintiff correctional officer, individually and on behalf of his family, filed an action against defendant State of Louisiana, Department of Public Safety and Corrections, for damages based on intentional tort. The trial court awarded the officer general damages, and the Court of Appeal First Circuit, Parish of East Baton Rouge (Louisiana) affirmed. The State challenged the decision, and the court granted the State's writ application. ISSUE: Did the plaintiff give his implied consent to this degree of harmful or offensive contact? The defense of consent in Louisiana operates as a bar to recovery for the intentional infliction of harmful or offensive touchings of the victim. Consent may be expressed or implied; if implied, it must be determined on the basis of reasonable appearances. RULE: The defense of consent in Louisiana operates as a bar to recovery for the intentional infliction of harmful or offensive touchings of the victim. Consent may be expressed or implied; if implied, it must be determined on the basis of reasonable appearances. ANALYSIS: This act is not covered under the Worker's Comp provision because the result of the action was an intentional battery committed during the course and scope of the employment. The plaintiff met his burden of proof that striking a person with a baton intentionally is a harmful contact. Is the plaintiff allowed to recover? Usually the defense consent in LA operates as a bar to recovery for the intentional tort of battery. However, consent can be expressed or implied. Cole may have consented to some harmful or offensive contact within the routine exercise but the court stated that Cole "did not anticipate or consent to such brutality during a training session." In other words, the defense's assertion that Cole consented to a battery simply because he was a member of the tactical unit does not fall under the implied consent defense. HN7 When a person voluntarily participates in an altercation, he may not recover for the injuries which he incurs, unless force in excess of that necessary is used and its use is not reasonably anticipated. The use of unnecessary and unanticipated force vitiates the consent. In this case it is clear that the force used against Cole was unnecessary and unanticipated thus vitiating the consent of the victim. CONCLUSION: The court affirmed the trial court's finding that the officer was the subject of the intentional tort of battery, but reversed the award of damages for the closed head injury. The court remanded for a reassessment of damages. Is exceeded the scope of consent and is therefore a battery. Excessive force is what leads to the battery in this case outside the scope of what the plaintiff implicitly consented to.

Nickerson v. Hodges

FACTS:A woman brought suit against defendants alleging malicious deception and conspiracy with respect to the finding of a supposed pot of gold. PP: Plaintiffs, legal heirs of original plaintiff, appealed a decision by the Second Judicial District Court (Louisiana) which found in favor of defendants in an action alleging malicious deception and conspiracy with respect to the finding of a supposed pot of gold. ISSUE: Defendants can be held liable for inflicting serious mental suffering and humiliation even where they intend their actions as a practical joke. RULES: HN1 Defendants can be held liable for inflicting serious mental suffering and humiliation even where they intend their actions as a practical joke. ANALYSIS: It held that while the defendants likely intended what they did as a practical joke, and had no willful intention of doing any injury, they were aware that the injured woman had been the inmate of an insane asylum in the past and they inflicted serious mental suffering and humiliation on her. The court said it would have awarded the woman a substantial sum were she living, but the present plaintiffs, as her heirs, only required a nominal sum to serve the ends of justice. CONCLUSION: The court reversed the lower court's decision in favor of defendants and found some of the defendants liable to an injured woman's heirs for damages for mental suffering and humiliation of the injured woman. The court found defendants were liable even though they intended their actions as a joke. Notes: NEW TORT! Does it meet the elements of IIED. The fact that she had a prior condition makes it extreme and outrageous. Was there intent or substantial certainty that she would go nuts? Yes. The factual setting makes this case work- it was an elaborate joke.

Garrat v. Dailey

Facts: Procedural Posture: Bench trial- at the trial in front of the judge. Washington Supreme Court Appellate court. Reviewing the legal standard of the low court They are looking for a mistake- Bryan didn't have the intent to injure Ruth. They are implying that Brian had to intend harm but really he only had to intend contact. But Brian did intend for her to have an offensive or unauthorized contact ( falling on her ass). Question: Was there anything wrongful in Brian's act of moving the chair? Did Brian have knowledge to a substantial certainty that moving the chair would cause Ruth harm? Did brain have the requisite intent for battery? Holding: Remanded for clarification for the application of the facts. Before the case is dismissed, it needs to be determined whether or not Brian had knowledge that the plaintiff would attempt to sit down where the chair had been moved thus considering the possibility of intentionally causing Ruth harm. Rationale: By moving the chair before Ruth sat down, Brian did not have a "purpose, intent or design to perform a prank or to effect an assault or battery on the plaintiff." Liability can only be asserted if the act is intentional. Whether or not Brian knew "with certainty" that Ruth would try to sit down cannot be known by the facts of this case whether or not Brian intentionally moved the chair. - Rule set forth by the appellate court: Purpose of substantial certainty to unauthorized harmful or offensive contact or to commit battery is the standard (defer to factual judgments but reign supreme with legal issues) - Factual application of the rule is done by the trial court (evidence and witness) - Intent can be subjective (depends on state of mind of the defendant). Is Brian capable of understanding the substantial certainty to moving the chair? - Appellate courts focus on the issue of where the trial court may have errored

Davis v. White

Facts: Procedural history: Defendant received a default judgment in the amount of $50,000 Question: Did White willfully and maliciously wound Davis even though he was aiming to injure someone else? If so, is he liable for the debt? Holding: Yes. A person who intends battery or assault at another person but mistakenly strikes a third person is still liable for the injury to the third person. It doesn't matter who the intended victim is, only the actual victim that gets hurt. A debt incurred through a willful injury is nondischargeable. Rationale: The doctrine of transferred intent say that "one who intends a battery is liable for that battery when he unexpectedly hits a stranger instead of the intended victim." We want to extend liability to cover the intentional tort but the doctrine is not always applied as a rule and not in every case is it applied. Liability is extended to cover unforseeable or unintended consequences. Whether the actual intended person was injured is irrelevant. If the act is considered willful (deliberate or intentional) and malicious, the debt incurred from the wrongful act cannot be dismissed. Justice Dennis tells us the standard for intent, workers comp standard, and dignitary standard... How far is the dignity or personal autonomy protected? (Transferred intent can be transferred from tort to tort or intent can be transferred from one person to another.)

Caudle v. Betts (1981)

Facts: At a company Christmas party, B shocked the back of C's neck with a charged condenser and then chased him around until Caudle escaped by locking himself in an office. In the following months Caudle began to have frequent severe headaches and fainting spells. Caudle filed suit against Bett's and LM seeking damages for pain and suffering, lost motion and enjoyment of life, past medical expenses, loss of earnings, and future damages for permanent paralysis. Procedural history: Trial court found that an intentional tort was not committed by B because no injury was intended. The Court of Appeal affirmed for the same reason. Question: Can an action with unintended and unforeseeable injuries constitute an intentional tort? If so, is the plaintiff allowed to recover all consequences of the alleged battery even if the consequences were unforeseen? Holding: Yes, the action of the defendant was considered an intentional tort because the "intent with which tort liability is concerned is not necessarily a hostile intent or desire to do any harm." Just because B's intent was a practical joke, doesn't mean that the unexpected losses should fall on the innocent victim. Yes, the defendant would be able to recover damages because even though the injuries were not foreseen, the defendant made a "harmful or offensive contact with the person without the plaintiff's consent." Rationale: The defendant was held liable because he performed an action that invaded the interest of another in a way that the law forbids even though he honestly believed the act would not injure the plaintiff. The liability is sufficient, even if the intention is not malicious or consists of an intention to cause harm because the offensive contact was performed without the plaintiff's consent. It was also shown that the defendant did intend the contact of the condenser to be slightly painful or harmful. A defendant is liable not only for contacts that do actual physical harm, but also ones that are meant to be offensive and insulting. The fact that this tort was a battery entitles the defendant to damages. Standard: purpose of substantial certainty of harmful or offensive contact. Harm or offensive is measured by a reasonable standard, most people would find that being shocked would be offensive. Liability extends to unforeseeable consequences. Intent Contact Harmful or offensive Why is it that negligence doesn't apply? This tort is intentional because he is suing If this case was negligence it would fall under workers compensation because it has to do with an employer and employee relationship. There's an immunity: if you recover in workers comp you can't sue in tort law. Caudle can get more money if he sues outside the worker comp arena. Caudle is arguing this is an intentional tort because its outside the negligence/ workers comp immunity. Battery as evolved beyond a tort to keep the peace but to maintain person dignity or to be free from unauthorized touchings and unintended consequences. Liability for intentional torts extends to unintended or unforeseeable consequences. Intentional torts fall into the one year limitation

Sources of law

Federal and state (federal preceding state) i. Constitutional law- first ii. Statutory law- second iii. Common (jurisprudential) law- requiring interpretation

Perkins v. Texas and New Orleans Railroad

I. A train was traveling at 37 mph, 12 mph over the speed limit when it hit the broadside of a car killing 2 passengers, the plaintiff's husband. II. held that despite the fact that defendant was traveling in excess of the speed limit set by the railroad company (not by statute), the speeding itself was not the but for cause of the accident. Even if the train had been going the appropriate speed it still would not have been able to stop in time to prevent the crash with the vehicle, as testified to by expert witnesses. Burden = THE PLAINTIFF'S and in this case there was no evidentiary support for the plaintiff's claim under the "More probable than not" standard. III. Was it a substantial factor? What if the train was going slower and the decedent could have seen the train sooner and prepared to stop? IV. IE, would the accident have happened BUT FOR the negligence of the train operators?

United States v. Carroll Towing

If a bargee was left on the boat, would the injury have occurred? held that if the burden is less than the probability of harm times the injury or loss there is a duty to take reasonable precautions. A failure to do so is negligence. This has come to be known as Hand Formula. B (burden) < P (probability of harm or expected loss) x L (loss/injury). The Hand Formula is used to determine whether or not a duty has been breached. We balance PL over burden because we do not expect absolute safety; there is always an acceptable level of risk. There is a cost in every precautionary measure we take. This is a usual formula telling us for when reasonable people should take precautions. Reasonable people only take cost effective precautions. . PINTO SCENARIO: Polycentric problem- How do they decide what safety measures to put on or leave off? What about the consequences of adding safety parts? (seatbelts). Or once you say that ford had a duty to disclose, what about the other similarly low risks? The Ford Pinto example discussed in class further elaborates on the application of the Hand Formula. Under the cost-benefit analysis, taking additional safety measures in the construction of the Pinto would have cost more than the expected loss. The major controversy here is that Ford placed a quantifiable value on human life. Ford knew with substantial certainty that someone would die. Alleged wrongs or faults: 1. Failure to disclose/ fraud- a reasonable person would disclose facts to purchasers 2. Failure to install baffle (design defect case) 3. Performing a risk/ utility balance valuing life Injury- Death, destruction of property Cause- Did the neg. acts listed above cause the injury? "But for" the failure to disclose would the injury have occurred? Yes for some of the elements... You would have to show that disclosing injury would cause people not to by the car. Baffle? No, there was causation. The injury would not have occurred if the baffle was installed. Even if Ford had not done the injury analysis the injury still would have occurred. What is reasonable in this case and how to we measure what is safe? - If the benefits outweigh the costs, we continue to do it. (70 mph people still die but the benefit of going 70 outweighs a 50 mph speed limit. The tradeoff is worth it.) - There will always be a risk that we are willing to take Failure to Disclose: The risk of the car actually exploding is extremely low. Disclosing risks (under 1%) would have to be disclosed before you sell the vehicle. Most people at the dealership would not want to hear it. The burden of disclosure would be higher than the benefit. Failure to install the baffle: Baffle cost $11: What about the thousands of over safety devices that could have been installed? New safety belt? More padding? Becomes too expensive. Are we skilled enough to make correct safety choices? Putting value on human life: Is all human life invaluable? How did Ford decide that a human life was worth $2000? Number came from government document. A risk utility balance is the only way Ford can continue to do business. If they don't we couldn't afford to buy their cars (think about baby seat example 97% safe). All companies that make products make risk utility analysis. But there are standards in products liability cases. They have to be reasonable for reasonable people. A standard must be developed: When does a manufacturer have a duty to repair a defect? Knowledge of a risk alone should not create liability. There is always a risk. But what is the balance? Note to Ford after this case: Don't test a product and don't publicize it. Church believes that the Hand Formula can be used to explain every tort problem in some form or another. Hand calculates the reasonable amount of risk, which assists in determining how reasonable people would behave under like circumstances. Result: Cost would be more than the benefits of installing safety device. Ford would not be liable under the hand formula because there is no duty or no breach. All companies apply the formula. There is always going to be some kind of risk. The balance or hand formula tells us how people would behave under circumstances.

Multiple Defendants

If you have 2 defendants that cause a tort, they are both responsible for their allocated share under tort reform. If the plaintiff is negligent and D intentionally faulty, then the def is responsible and plaintiff's shre is paid by def. If they are both negligent, they share liability. a. Facts: In August, a fire started on the plaintiff's property far from his home because of the actor's negligence. In October, other factors beyond the control of the actor caused the fire to grow considerably. The result was damage to the victim's home. b. Rule: When two factors combine, the result is JOINT liability, NOT NO liability c. Good note: When there is one cause of harm, the but-for test is used. When there is more than one cause, the substantial factor test is used d. How does one determine which cause did what harm e. See Alternative liability: Actors have burden of demonstrating that they are NOT responsible for the harm done. f. Result is often: Jointly and severely liable

Affirming the 2 questions of negligence per se do not end inquiry into whether or not the doctrine should be applied. Other factors must be considered:

Is the statute relevant? Used by courts to exclude or include statutes 1. Whether the statute is the sole source of the defendant's duty to the plaintiff 2. Whether the statute clearly defines the prohibited or required conduct 3. Whether the statute would impose liability without fault 4. Whether invoking the negligence per se doctrine would result in damage awards disproportionate to the statutory violation 5. Whether the plaintiff's injury is a direct or indirect result of the violation of the statute 6. Adopting Body - The more formal the adopting body, the more likely it is admissible 4. Sec 285: The standard of conduct of a reasonable man may be: a. Statutory: Established by legislative enactment or administrative regulation b. Negligence Per Se: Adopted by the court from a legislative enactment or an administrative regulation that did not so provide c. Judicial: Established by a judicial decision d. Factual: Applied to the facts of the case by the trial judge or jury, if there is no such enactment, regulation, or decision 5. Sec 286 When Standard of Conduct defined by legislation or regulation will be adopted Court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part: a. To protect a class of persons which includes the one whose interest is invaded, AND b. To protect the particular interest which is invaded AND c. To protect that interest against the kind of harm which has resulted AND d. To protect that interest against the particular hazard from which the harm resulted. 6. Note 4: Seems very important a. What are the consequences of the court adopting a statute as a measure of negligence? i. Is the jury bound by it? ii. Is it limited to simply deciding whether defendant violated the statute as a matter of facts? (Negligence per se) iii. Presumption of negligence that the defendant must disprove? (Rebuttable presumption of negligence)? iv. Just part of the duty risk? b. No real answer... "Confused and unsettled"? 7. "Rule of Law" : Judge simply states what he thinks reasonable conduct would be under the circumstances a. Holmes' favorite: trial judge more familiar with recurring fact patterns b. Doesn't take into account specific or different circumstances

Trespass to land, conversion and chattels

Land- real property: result is entry onto land Conversion- personal property: result is to exercise dominion over pp Chattel- result is interfering with pp (same as conversion) 3 Elements- Acts, Intent to accomplish result, and result - Intent to enter/interfere/disposses -INTENT IS VERY MINIMAL. Intent does not have to be to trespass just the intent to enter (move from A to B) *Intent to trespass is easily satisfied and does not have to have blameworthiness

Strict Negligence per se

Mandatory Presumption)the statute establishes the standard of care. You can't argue you were reasonable if you violated the statute. If the def. violated the statute, you must find that he was negligence and owes damages. It defines the duty and determines the breach.

Motions to be made before trial

Motion to dismiss 12b6: failure to make a claim upon which relief can be granted. All allegations are true but fail to establish an element - Summary Judgment: ∆ moves for SJ taken the evidence we have, and viewing it in the light most favorable to plaintiff fails to establish an element. Takes issue away from jury - Directed verdict- an order from the judge to the jury to find a certain way takes the case away from jury - Judgment not withstanding the verdict: judge says the jury doesn't get the issue and the decision is taken away and makes the decision himself. When a reasonable juror could not differ or find a certain way. Takes case from jury. Res ipsa: Proof by Inference- "The thing speaks for itself"

Intent

Purpose or knowledge to a substantial certainty of ___offensive contact

Rains v. Bend of the River

Rains v. Bend of the River held negligence per se should not be a factor in the case of the boy who killed himself with his parents' gun and ammunition he bought from defendant. Although defendant was negligent pre se for failing to check the boy's age and selling him a gun (he was in the class of person) the statute requiring such action is aimed at preventing children from obtaining a weapon and shooting others. Suicide occurs irrespective of age and is not the target of the statute in question. The court also argues that the violation of the statute was the legal cause of Rains' death. The plaintiff loses but not because the def did not meet the other elements. The statute is a regulatory statute. Did the storeowner engage in faulty conduct? Yes he sold to minors. What about causation, (ACTUAL or proximate). Courts will say the party that sells a gun to a suicide will be liable normally. But this case is proximate cause (court uses legal cause)- it more likely or somewhat likely that the individual would not have committed suicide without the ammo. But when you have negligence of selling the ammo and suicide, suicide interrupts the chain of causation enough to where we won't hold the seller responsible. The scope of the duty does not include the risk of suicide. There was no indication that he was likely to commit suicide. All elements are met but suicide is too far removed so we won't find liability. You have to have both proximate cause and actual cause. Affirming the 2 questions of negligence per se do not end inquiry into whether or not the doctrine should be applied. Other factors must be considered:

Slayton v. McDonald

Self Defense: Generally Definition: F. There was an actual or reasonably apparent threat G. to the claimant's safety C. requiring and justifying force D. Must be reasonable: Though the force used cannot be excessive in degree or kind" ii. True defense: Even if everything the victim says is true, the actor should not be liable. iii. La Statutes: 2800.16: Limitation of liability for use of force in defense of certain crimes . A person who uses reasonable and apparently necessary or deadly force or violence for the purpose of preventing a forcible offense against the person or his property in accordance with R.S. 14:19 or 20 is immune from civil action for the use of reasonable and apparently necessary or deadly force or violence A. The court shall award reasonable attorney fees, court costs, compensation for loss of income, and al expenses to the defendant in any civil action if the court finds that the defendant is immune from suit in accordance with Subsection A of this Section i. DOES NOT JUSTIFY RETALIATION OR REVENGE ii. Slayton v. McDonald: La App. 2d Cir. 1997 . Facts: While in his own home, a kid (Slayton) is threatened by the bully (McDonald). Kid calls cops. Bully enters kid's house. Kid threatens bully with shotgun. Bully advances. Kid shoots. A. Issue: Was the use of the shotgun a reasonable defense? This was an easy because he was in the home and it was in defense of himself. He also exhausted every means possible as well. B. LA Aggressor doctrine: 0. "precludes tort recovery where the plaintiff acts in such a way to provoke a reasonable person to use physical force in fear or anticipation of further injury at the hand of the aggressor plaintiff,"- if you are the aggressor than you can't recover 1. ** unless the person retaliating has used excessive force to repel the aggression. 2. Danger weapon uses justified in situations determined by fact (the following are considered:) 1. Character and reputation of the attacker 2. The belligerence of the attacker 3. A large difference in size and strength b/w the parties 4. An over act by the attacker 5. Threats of serious bodily harm 6. Impossibility of a peaceful retreat > not necessary, but a big factor 7. CREDITIBILTY OF WITNESSES 4. Worked in conjunction with self-defense to bar or limit recovery

Negligence

did the actor exhibit unreasonable care: 1. Duty- did the actor foresee any harm from his conduct? Was the risk of harm unreasonable? 2. Breach- Did the actor act unreasonably in the light of the foreseeable risk? (how fast was he driving in the school zone?) 3. Causation- Did the action cause a loss? "But for"/ was it a "substantial factor?"

DEFENSES TO INTENTIONAL TORTS

TALK ABOUT THE ELEMENTS FIRST, THEN TURN TO DEFENSES NOT A TRUE DEFENSE- THE DEFENDNAT MUST PROIVE- IF THERE IS CONSENT IT IS ARGUABLE THAT THERE IS NO TORT... IT VITIATIES THE INTENET OR CONTACT. SELF DEFENSE IS A TRUE DEFENSE BECAUSE THE TORT ACTUALY HAPPENS. Types of Defenses to Intentional Torts: 1. Consent 2. Necessity 3. Self-defense 4. Defense of third parties 5. Defense of property 6. True privileges

Custom as Shield

The custom in this case was that some boats have radio. Hand says that the custom was not to have a radio. Hand says still that it still wasn't reasonable to not have radios even though it wasn't a custom. Customs themselves can be negligent. The defendant is arguing that he behaved reasonably because he did what everyone else does. But if the custom was that every other boat had a radio, custom can be used as very strong evidence to decide a case. A custom should be an evidence of due care. Custom as a defense is weaker than custom as a sword. . Forms of custom- Look to safety manuals, internal safety regulation, expert testimony i. 1. Get evidence of custom admitted. ii. 2. How strong is that evidence? Left up to factfinder

Res Judicata

Thing adjudged" Most torts are settled outside without filing suit through a compromise or release

Types of liability?

Vicarious liability- relationship to actor Strict liability- actor's relationship to a thing causing damage Absolute liability- actor participates in an activity leading to damages

Subject matter jurisdiction

a court which has jurisdiction over a certain tort claim

Jenkins v. St. Paul Fire & Marine Insurance Co

a. Attorney's negligence prevented the opportunity for recovery. b. Main Point: Case within a case doctrine modified. Before the burden for attorney malpractice was on the plaintiff to prove his claim would have result in recovery. Now the attorney must prove that the plaintiff' Malpractice defined: negligence in the performance of professional work c. How to prove that accident caused an injury: i. Lukas v. Insurance Company of NA (La. 1977) - "disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves afterwards, providing that the medical evidence shows there to be a reasonable possibility of causal connection b/w the accident and the disabling condition b. s claim could not possibly result in recovery.

Special Cases

a. Blind people and children must act as reasonable blind people and children would. (except for children and probably blind in inherently dangerous actives) b. Insane people have reasonable sane person standard: must live to everyone else's standard i. Exception sometimes with workers who are aware of a mentally deficient person's condition, the deficient person wouldn't be liable under certain circumstances ii. Why is there a difference between physical and mental disabilities? Proof, and most physical disabilities you can see more clearly and adjust behavior. With the insane, we want to force a certain party to take action; in these cases, the caregiver. iii. The exception is sudden unconsciousness or sudden insanity. c. A child is held to the standard of a reasonable child of like age and development. A child can be held as negligent but is not held to the same standard as an adult. A child is held the same standard that a reasonable child of the same and circumstances would be held. An exception to this is when a child is engaged in an adult or inherently dangerous behavior. Parents can be vicariously liable for the tortious actions of their children. They can also be independently liable if they were not acting as a reasonable, ordinary, prudent parent should have in preventing the actions of their child. d. Who gets to make the determination? Experts, regulations, jury, other standards to inform us? 7. Accidents (e.g. -Liable for becoming unconscious? Only if the unconsciousness was unreasonable): Standard a. The existence of such latent defect by proof so strong that it excludes any other reasonable hypothesis with reference to the cause of the accident except that it rests solely from the alleged defect i. He was not aware of the defect ii. The defect could not reasonably have been discovered and remedied by a proper inspection b. In sum, "he must prove that the accident "was caused exclusively by a latent defect in the vehicle and he was not guilty even of slight negligence that "in any way contributed to the accident" 8. Emergency Doctrine- are not defenses but instead are factored into duty/risk, In a true emergency there a lot more leeway given to actions which under normal circumstances would be unreasonable. Church- no emergency doctrine b/c an emergency falls under the changing circumstances.

Elements: of Common Law negligence

a. DUTY to exercise reasonable care (a reasonable person under regular circumstance) - Custom standard applies in some cases such as professional negligence or medical malpractice - Risk utility and the Hand formula - Negligence Per Se (statute breach) Admissible? Evidentiary value? - Res Ipsa Loq. (Always see if any of the 3 above criteria apply first then revert back to the first reasonable standard) b. BREACH of the duty to ex reas care d. CAUSATION (CAUSE IN FACT) PROXIMATE/LEGAL CAUSE- scope of dutyProximate cause is the primary cause of an injury. It is not necessarily the closest cause in time or space nor the first event that sets in motion a sequence of events leading to an injury. Proximate cause produces particular, foreseeable consequences without the intervention of any independent or unforeseeable cause. It is also known as legal cause. - Actual (But for) - Proximate e. INJURY

Violation of Statute, AKA Negligence Per Se

a. Law adopted as the standard of care for a reasonable person i. NOT b/c reasonable people always follow law (think speeding tickets) b. When will courts adopt a statute as the standard of care for a reasonable person under the circumstances? i. When the plaintiff is within the class of persons the statute was enacted to protect ii. The risk was within the class of risks statute was enacted to guard against 2. Wright v. Brown - RISK in the act MUST BE WITHIN THE CLASS OF RISKS THE STATUTE WAS DESIGNED TO PREVENT. Wright v. Brown held that (1) negligence per se was not applicable in this case because the class of risks this statute tried to protect the general public from was diseased dogs. Although the dog warden failed to keep the dog in question quarantined for the prescribed fourteen days, the fact that the dog was not diseased eliminates the need for the negligence per se jury instruction. This does not mean the dog warden was not negligent. But was the person a reasonable person within the circumstances? A. Negligent act: letting the dog out early B. Was the person within the class of person? Yes C. Was the injury within the scope? No- disease not dog bite

Reasonable care

a. Objective test? What would the ordinarily prudent person do under the circumstances? b. Subjective test? What would the ordinarily prudent person do under the circumstances?

Restatement Section 281 Cause of Action : Actor is liable if:

a. The interest invaded is protected against unintentional invasion b. Conduct of actor is negligent with respect to other or a class of persons in which victim is included c. Actor's conduct is legal cause d. Other actor has not so conducted himself as to disable himself from bringing an action for such invasion

magnitude of the risk

a. The social value which the law attaches to the interests which are imperiled b. The extent of the chance that the actor's conduct will cause an invasion of any interest of the other or of a class which has the other as a member c. The extent of the harm likely to be caused to the interests imperiled d. The number of persons whose interests are likely to be invaded if the risk takes effect in harm

Intentional Tort Theory- When can you or family members be allowed to recover against the person liable for the crime?

a. When there is a wrongful action or FAULT- fault has to be established in order for a plaintiff to be able to recover b. Intentional- plaintiff must prove intent in order to recover c. Negligence- unreasonable standard of care or lack of i. The ultimate conclusion- you are liable ii. Your conduct did not live up to the reasonable standard of care - but you are not necessarily liable d. Absolute liability cases are "fault free" e. No recovery or fault, the injured person pays for their own damages buying insurance) f. Why do we care that it's an intentional tort? Some negligence torts cannot be recovered, the purpose to protect the personal dignity and integrity of an individual i. Worker's comp- insurance schemes ii. Immunity iii. Tort debt cannot be- Nondischargeability/ bankruptcy iv. Student loans not dischargeable v. Damages- in some jurisdiction intentional torts have heightened damages. (Not in LA- compensatory damages) vi. Damages in intentional torts covers unintended and unforeseeable consequences for most cases. In negligence its limited to forseeability vii. Scope of liability- Punitive or exemplary damages exist in most states to punish not make whole. In LA punitive damages are only available in certain circumstances not in intentional torts

Assault:

an intentional tort that protects a person's interest in being free from apprehension of harmful or offensive contacts with his or her person. Trespass: a touching of the mind not the body 1. An actor is subject to liability to another for assault if a. He acts intending to cause harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact and b. The other is thereby put in such imminent apprehension 2. An action which is not done with the intention states in section 1a does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it, and therefore, would be negligent or reckless if the risk threatened bodily harm. - Intent - Reasonable apprehension of an imminent battery (harmful or offensive contact) - It has to appear that there is a battery about to happen - Assau - lt does not protect fear - Interest is from being free from unwanted contact or expectation of that

Boyer v. Johnson

held that there is no negligence per se doctrine in Louisiana, and that to establish liability a statutory violation must be determined to be the legal cause of the accident. Question addressed: Notion of negligence per se means a strict interpretation means that the violation of a statute means they arte guilty. However, criminal statutes are guidelines and can be used as evidence of negligence but not in the strict negligence per se sense. o The statute may not govern but if you violate the statute you will use. When the statute is so persuasive, the jury will apply it as the rule.

Linnear v. Center Point Energy

held that there should be no application of res ipsa here because there was direct evidence provided by both parties as to whether or not defendant was negligent. Res ipsa only goes to duty and breach when only circumstantial evidence is presented. There should not be any presumptions in res ipsa. Plaintiff's pictures could have been interpreted in a number of ways as to whether or not defendant was responsible for plaintiff's falling into the sinkhole next to her driveway.

Willful/ Wanton

gross negligence or wrecklessness

Salinetro v. Nystrom

held that defendant was not guilty of negligence in the death of plaintiff's fetus as a result of the but for standard. Because plaintiff was unaware of her pregnancy, even if defendant, doctor, had asked her if she was pregnant she would have responded that she was not because she was unaware of the fact herself. Custom within the field would not have required additional testing, and the x-ray would have still been performed. The omission did not cause the injury.

Roberts v. State

held that defendant, a blind concession stand worker, was not liable for bumping into plaintiff and knocking him down. The reasonable person standard adapts to the circumstances: What would a reasonable, ordinary, prudent blind person do under like circumstances. The alleged act of negligence by defendant—failure to use a walking stick—does not constitute negligence because most blind people can adequately negotiate their way around familiar settings without the aide of a walking stick. The principle is that we take into account physical disabilities or differences. The alternative is, does he have duty to use his cane to ensure the safety of others. Dobert standard- deals with the admissibility of expert testimony. This is usually used to define how reasonable things are under the circumstances. In this case, reasonable blind people don't use their cane when they've been in area where they are reasonable familiar. Plaintiff claimed he sustained injuries after being bumped into by a blind man who failed to use a cane while walking to the restroom. Since the incident occurred in the lobby of a post office and the blind man operated a concession stand in the building, plaintiff sued defendant state, advancing theories of negligent supervision and respondent superior. The court affirmed the dismissal of the suit, concluding that the standard of care for a blind person in determining negligence is what the ordinary reasonable person would do if he were blind. Under that standard, plaintiff failed to show that the operator was negligent, and without a cause in fact, the court did not need to reach the issue of defendant state's liability.

Breithaupt v. Sellers

held that proving contributory negligence on the part of the plaintiff was the burden of the defendant. Although plaintiff was negligent in failing to wear an orange hunting vest, the exercise of reasonable care on the part of the defendant might have prevented the accident. Therefore, whether the plaintiff's negligence was the but for cause of his own injury was a matter of fact that should have been left up to the jury to decide. The plaintiff's conduct could not constitutue contributory negligence unless the CN was the legal cause of thw accident. Was the NC a substantial factor in the causing of the injury? Must examine determining plaintiff's AND defendant's negligence ii. the Substantial factor in bringing about harm is tested by whether the harm would have occurred BUT FOR the actor/victim's conduct iii. Again, EACH ELEMENT of negligence must be proven

Anderson v. Minneapolis Railway Co.

held that the fire negligently started by the railway company was a substantial factor in bringing about the damage to his property, even though it combined with another fire. Although you can't prove which fire was responsible, the starter of each fire is solidarily liable for the damage. The burden of proof shifts to the defendant to prove that he was not responsible for the damage. VII. When two or more defendants can be held liable for the plaintiff's injury (joint and severally liable), one full set of damages can be collected from a single defendant. That defendant will then have to sue the would-be other defendant for their portion of the damages. VIII.

Smith v. Louisiana Health and Hospitals

held that the loss of chance of survival was an independent tort separate from wrongful death. The plaintiff must prove both negligence and the loss of chance of survival. The doctor's negligence was not the but for cause of the plaintiff's death; it was the but for cause of his loss of chance of survival. The damages should be for this specific loss. Damages cannot be computed with a specific formula taking a percentage of wrongful death damages. . Facts: Doctor did not notify the victim during a routine checkup that an x-ray taken showed signs of cancer. When the victim returned to the hospital ten months later with severe pain, the doctor ruled that he had less than one percent of survival. The chance of survival after the first x-ray was roughly 7-12%. a. Discussion: . Loss of Chance of Survival is an independent cause of action - loss of a chance of avoiding death that might not have occurred if the health care provider i. Must prove 1) Negligence that result in 2) loss of chance of survival ii. The damages should be for this specific loss. iv. Damages: 1. Cannot be computed by mathematical formula that computes total damage of wrongful death and then takes a percentage from that number. 2. Juries should be allowed to provide a lump sum award for all the damages based on a subjective consideration of all the factors. v. Right to appeal protects defendant

Black v. Abex Corp

held that, under the principle of alternative liability, when the conduct of two or more actors is tortious, and it is proven that harm has been caused to plaintiff by only one of them, but there is an uncertainty as to which one has caused it, the burden is on each such actor to prove that he has not caused it. Brining suit against more than one company that has produced the same damage-causing product imposes a market share liability on each company for their actions. a. Market Share Liability = From Keeton on Torts i. Injury or illness occasioned by a fungible product (identical-type product) made by all defendants joined in the lawsuit ii. Injury or illness due to a design-hazard, with each having been found to have sold the same type product in a manner that made it unreasonably dangerous iii. Inability to identify the specific manufacturer of the product or products that brought about the plaintiff's injury or illness iv. Joinder of enough of the manufacturers of the fungible or identical product to represent a substantial share of market. b. Alternative liability: when the conduct of two or more actors is tortious, and it is proved that harm has been caused to plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.

3 "levels" of law

i. Competing societal values (fairness) ii. Operative principles iii. Rules that develop from operative principles s. Societal values are always changing therefore, tort law and principles can change. *Note: General rules often develop in tort law but its important to never lose sight of the operative principle of the general risk and not the "rule"

b. McCarty v. Pheasant Run, Inc -

i. Thus, if the burden is less than the severity of the harm times the likelihood of it happening, the precaution should be taken. ii. Liability arises from the failure to take precautions that would generate greater benefits in avoiding accidents than the precautions would cost c. Both of these are DUTY/RISK = is the conduct's risk greater than its utility? 3. Sec 291: Unreasonableness: How determined, Magnitude if Risk and Utility of Conduct (Broussard Case) a. Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done b. More simply, an act is negligent and a risk unreasonable if the magnitude of the risk outweighs the utility of the action 4. Sec 292: Factors Considered in Determining Utility of Actor's Conduct In determining what the law regards as the utility of the actor's conduct for the purpose of determining whether the actor is negligent, the following factors are important: a. Social value which the law attaches to the interest which is advanced or protected by the conduct b. Extent of the chance that this interest will be advanced or protected by the conduct c. Extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct 5. Sec 293: Factors Considered in Determining Magnitude of Risk In determining the magnitude of the risk for the purpose of determining whether the actor is negligent, the following factors are important: a. The social value which the law attaches to the interests which are imperiled b. The extent of the chance that the actor's conduct will cause an invasion of any interest of the other or of a class which has the other as a member c. The extent of the harm likely to be caused to the interests imperiled d. The number of persons whose interests are likely to be invaded if the risk takes effect in harm

Tort Procedure

i. Victim files a petition or complaint in a court of proper venue (maybe where the crime was committed) ii. Defendant is supplied with a copy of the complaint with enough time to respond (due process) iii. Defendant responds 1. Demurrer 2. File an answer admitting or denying allegation iv. Discovery v. Motion for summary judgment (judge decides whether the plaintiff has enough evidence) vi. Trial if surviving summary judgment vii. Verdict viii. Appeal 1. Granting or refusing a demurrer 2. Granting or refusing a motion for summary judgment 3. Refusing or allowing a jury to hear certain evidence 4. Providing the jury with the incorrect law or instructions 5. Improperly granting a directed verdict

Presumption

if you found the def. violated the terms of the statute then the def shall be presumed to be negligent. In the absence of evidence from the defendant establishing reasonability. It shifts the burden of proof from plaintiff to defendant. It may be rebutted by probably evidence that the def. acted reasonably. "In the absence of contrary evidence..."

Battery

is an intentional tort that protects a person's interest in being free from physical contact (harmful or offensive) with the defendant. Some include not being consented to. a. Must be a voluntary act by the actor. b. The contact must occur (HARM OR DEFENSE) c. Intent d. Consent- MOSTLY A DEFENSE e. Battery does not have to include physical harm. f. Plaintiff must prove all these elements or the case will be dismissed. g. Technical battery can be proven by proving a voluntary act, intent, and harmful or offensive contact. i. Offensive is defined as "disagreeable or nauseating or painful because of outrage to taste and sensibiltites or affronting insultingness."

Tort law is state law

iv. Tort law brought by individual an act of one individual for a civil remedy for a wrong done to them. v. When can you or family members be allowed to recover against the person liable for the crime? 1. When there is a wrongful action or FAULT- fault has to be established in order for a plaintiff to be able to recover. LABELS: a. Intentional b. Negligence- unreasonable standard of care or lack of 2. The ultimate conclusion- you are liable 3. Your conduct did not live up to the reasonable standard of care - but you are not necessarily liable a. Absolute liability cases are "fault free"

Due Process

law may not be forced against an individual unless he receives the procedure which is "due" to him. Provided by state and federal constitutions.

Weight of statute

o Strict Negligence per se- o Presumption- o Mere evidence- LA does not have strict negligence Per Se. We don't have a presumption. However, the statute still usually rules the case.

Cangelosi v. Our Lady of the Lake Regional Medical Center,

o They wanted to make the application more strict and narrow. You have to use the test because it allows the plaintiff to prove nothing and claim negligence. Its an invitation to jury to be speculative at what happened. Today: If you have evidence of the conduct Res Ipsa doesn't apply. o 3 part test from Cangelosi pg. 159 Injury is the kind which does not occur in the absence of negligence. Π doesn't have to eliminate all probable causes but must present evidence indiciating at least a probability that the accident would not have occurred absent of negligence. The evidence must sufficiently eliminate other more probably causes of the injury, such as the conduct of the plaintiff or third person. Negligence must fall within the scope of his duty to the plaintiff. Again, two types of evidences: • Direct: testified to by witnesses as having come under the cognizance of their senses • Circumstantial: "evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred" o Or, another way: "a number of disconnected and independent facts from several witnesses and sources, which converge toward the fact in issue as a common center o Again, "one or more inferences, which may be said to reasonably arise from a series of proven facts o How about once more? "Circumstantial evidence allows the court or the jury to reason from circumstances known and proved to establish a disputed fact by inference. Circumstantial evidence does not directly prove the existence of a fact but gives rise to a logical inference that such a fact does exist. " Circumstantial evidence must still prove all the elements of negligence: • The injury is of the kind which ordinarily does not occur in the absence of negligence o Plaintiff must provide a foundation of facts from which to infer its claim (i.e., to invoke res ipsa); One of two results happen from these efforts... Permissive inference: (Jury may draw inference or refuse to) versus... Presumption: (Direct verdict for plaintiff if defendant offers no evidence to rebut it) • Conduct of the plaintiff/third party is (more probable than not) NOT the cause of the injury o Must sufficiently exclude the inference of himself or others causing the crime • The indicated negligence was within the scope or of defendant's duty to the plaintiff o Mostly: defendant was in "exclusive control" of the injury-causing instrumentality d. Res ipsa applied after all evidence is brought forward; Judge decides whether it: i. Goes to a jury: If reasonable minds differ on whether the plaintiff's injuries were caused by the defendant's negligent acts? Or "More probably than not" 3 part test 1. Did plaintiff establish his claim as being the most probable? If so, he wins 2. Could the jury make other inferences as to the facts that are just as reasonable ii. Direct Verdict: Reasonable minds could NOT differ e. In Med. Mal- Res Ipsa can be used when a medical instrument is left in a patient. We look to standard of care for professionals and customary standards. Also relies on expert testimony. f. Multiple defendants: Whose stuff caused the problem? Note 3 pg. 163 says that they be jointly bound. Church- now we evolve fault percentage. g. Note 5- presumptions in auto actions; but there are some that exist in the law: following vehicle is at fault. Person behind should be able to avoid the risk. This presumption can be overcome. These presumptions create rules of thumb especially for insurance companies to determine how much they are going to pay. h. Presumptions of varying force- bursting bubble. You presume until the ∆ produces evidence to the contrary. You have to overcome the presumption with evidence that is sufficient to beat it. Mandatory presumptions or irrebuttable- "you must find"

False Imprisonment:

protects a person's interest in having one's body free from restraint or confinement. Includes a voluntary act and an intent to confine or restrain. The act must cause complete confinement or restraint and the victim must be aware of the restraint or confinement. If not aware of it, the victim must suffer a harm as a result of it. Most are of the false arrest variety- the act of the defendant that causes the restraint or confinement is the assertion of legal authority to detain or confine the victim. Or merchants and shoplifters 1. Intent to confine- purpose or substantial certainty of confinement 2. Actual confinement- is there a "reasonable avenue of escape" 3. Conscious awareness/ or suffer harm as a result

Risk/Utility balancing

there is always some form of risk a. US v. Carroll Towing Co., Inc. Learned Hand's formula: Three factors to consider: i. Probability of injury (P) ii. Severity of Injury (L) iii. Burden of adequate precautions (B) iv. If B is greater than PxL, then there is no liability ; If B is less than PxL, then there is

general risk/ specific risk concept

when an actor's conduct does not fit under any of these then the action is considered "an accident"

Admissibility

when is that statute going to be admitted into evidence? Ex. divers license expiration is not going to be admissible. It usually has nothing to do with an injury. What is the fit between the statute and the injury so that we can determine a standard of care under the circumstances? o Class of person o Class of risk • What is the evidentiary value placed on a statute? What is the value we are going to give to the statute. • Make clear for exam!!!!

Boudreaux v. American Insurance Company

• Circumstantial evidence is sufficient to constitute preponderance when, taking the evidence as a whole, such proof shows that "the fact or causation sought to be proven is more probable than not" (jury could find that the defendant is negligent) • Are the alternatives in the scope of the negligent conduct? • Is there an instruction for the jury to make a determination? • Circumstantial evidence doesn't need to rule out all other alternatives; it just needs to exclude other reasonable hypotheses with a fair amount of certainty so that it is more probable than not (greater than 50%) that the harm was caused by tortious conduct of the defendant • This is res ipsa loquitur - negligence is inferred on the part of a defendant because the facts indicate this to be the more probable cause of jury in the absence of other as- plausible explanation by witnesses found credible • "negligence of the defendant at the most plausible explanation of the accident • Just have to prove SOME NEGLIGENCE, not which SPECIFIC NEGLIGENT ACT caused the injury • The facts of the occurrence WARRANT the inference of negligence, not that they compel such an inference. • IN SUM: "Do the facts of the controversy suggest negligence of the defendant, rather than some other factors, as the most plausible explanation of the accident Pilie v. National Food Store, 245 La. 276 (1963) Plaintiff's lose if "an inference that the accident was due to a cause other than defendant's negligence could be drawn as reasonably as one that is due to his negligence

Consent

• Consent is an affirmative defense to an intentional tort. The burden of proof is on the defendant to plead and prove the existence of consent. Note that there is a difference between consent as an element of the tort and consent as a defense to the tort. • Informed consent- medical malpractice (mostly battery) Can be negligent because the doctors must give them enough information and risks • Types of consent: o Expressed o Established o Implied- consent exists even when you don't have the words but it can exist in relation to the facts of the case o Duration of o Failure to o Illegal activities o Incapacity to consent • Consent can be withdrawn at any time if it is reasonable; thus, consent is not contractual. This is possible because consent allows someone else to invade your dignitary interest. Consent is subjective, and you must look to the mind of the victim. • Consent can be used as a defense to all of the intentional torts except IIED.

Defense of Property

• Defense of property is an affirmative defense to an intentional tort. You cannot use deadly force to defend property (unless a statute exists that permits it). Like in LA (carjacking case) • Katko v. Briney held that defendant was liable to plaintiff for the injuries plaintiff incurred when he broke and entered into defendant's property and was shot with a spring-loaded gun defendant had setup to injure any thieves. In this case, the building was not their primary residence and the force used to protect the building was excessive (not reasonable). A spring gun is indiscriminate and the facts can't be distinguished. Only in self-defense or defense of third parties is deadly force acceptable. The important distinction is that this was not a defense of self or home because it wasn't a home. • Defenses in protecting one's land: Katko v. Britney (La. 1971) - Spring traps with guns or bear traps do not qualify: Again, must use REASONABLE FORCE - Can't do anything with a trap you would not be justified in doing in person. Thus, actor can use a spring trap if the victim is committing a felony of violence or is endangering human life. - Criminal liability sometimes if such actions are taken - Societal value: Higher value upon human safety than upon mere rights in property. Cannot even use such force if notice is given. - There is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendant's personal safety as to justify self defense - A farmer shoots a gun away from where he things that trespassers are but ends up hitting one. Can you engage in assault to defend property? In some cases, yes you can. Does the farmer defending the land have the intent? He had intent to engage in a reasonable defense. He has to have the intent to use courts. But can intent by transferred? Was the intent lawful? - Sitins: homeowners can't use force to remove people if they are just sitting there.

Types of True Privileges:

• Discipline o Factors in determining the reasonableness of a teacher's true privilege: Age and physical condition of student Seriousness of misconduct soliciting punishment Nature and severity of punishment Attitude and past behavior of pupil Availability of less severe but equally effective means of discipline History between both child and teacher o Harrell v. Daniels held the teacher was justified in her paddling of a disruptive student. o Despite the fact that this particular disciplining resulted in bruises to the student's kidney, her contact was privileged because the punishment was administered according to school board regulations and in the presence of a witness. The discipline was reasonable. Additionally, the same student had been paddled by this teacher in the past and had not been injured. Teachers have a privilege to issue reasonable discipline and cannot be held liable unless it was willful and malicious. She warned the child several times and there were witnesses. The policy in this case reasonable and the teacher was consistent in applying the policy. o Schools have an obligation to hold students accountable and can even be liable for failing to keep disorderly students in check. This is heavily regulated and most public schools don't do this. Parents do not have to consent to this, nor can they refuse it, unless local school board regulations take those factors into consideration. C.C. Art 215 & 216: Parents are immune from tort suits by a child during the child's minority. Defense of discipline can be used after they reach the age of majority • Shopkeeper's Privilege (Privilege to Arrest) o Shopkeepers may use reasonable force to detain a person for questioning on the merchant's premises for a length of time not to exceed sixty minutes unless it's reasonable under the circumstances that the person be detained longer. A peace officer may, without a warrant, arrest a person when he has reasonable grounds to believe the person has committed a theft of goods. Because the defendant did not comply with the terms of Article 215, the defendant cannot receive immunity from liability. Only if questioning and reasonable investigation is performed and probable cause is established, then a merchant may hold a detained person for arrest by a police officer. o Derouen v. Miller held that the Winn-Dixie employee, defendant, was liable for false imprisonment of P, Derouen, for failing to question plaintiff while detaining her on suspicion of theft of a bag of shrimp. Shopkeeper's privilege requires questioning of the suspect if he is detained. The defendant also failed to wait until plaintiff actually left the store without paying for the shrimp before accusing her of theft. The caurt states that when the law is clear and unambiguous, a shopkeeper must follow the law literally. "Such a person" refers to the "person detained for questioning." o Thomas v. Schwegmann Is Schewegmann immune from the liability of detention? held that defendant, supermarket, was liable because the store did not have "reasonable cause," or articulable knowledge of particular facts reasonably to suspect the detained person. In order for a plaintiff to recover she must prove: unreasonable force was used, there was no reasonable cause to believe a theft was committed, and the detention lasted longer than 60 minutes (unless it was reasonable she was detained longer).In this case, there was no reasonable cause because the employees failed to examine if the nail kit contained glue. its employee had failed to exercise due diligence in determining whether or not the box of stick-on nails had actually included glue, which the employee accused plaintiff of stealing. Although plaintiff did open the box and scattered the contents around the store, destruction of property is not covered under shopkeeper's privilege. Therefore immunity cannot be extended. - State of LA v. Phillips: ordinary citizen can make an arrest if he can prove that a felony has been committed. Officer just needs probable cause. - Detention must be REASONABLE • Spousal Immunity o In Louisiana, spouses who are not judicially separated or divorced are immune from tortious suits against each other. When the marriage ends, the spouses may sue each other for tortious conduct occurring during the marriage. o Duplechin v. Toce held that the prescriptive period on torts was suspended during marriage. • Parental Immunity o A child who is not emancipated cannot sue either parent as long as they are married and not judicially separated or the custodial parent when the marriage is dissolved or the parents are judicially separated. When the immunity no longer applies, children can sue their parents for torts that occurred during the period of immunity. o However, parents can sue their children during their period of immunity. o Again, the prescriptive period does not begin until the immunity no longer applies. - Spousal Immunity: Duplechin v. Toce: Wife can't sue for battery until after divorce i. Marriage abates right but not eliminate cause of action ii. Statute of limitations for that cause of action starts when she can make the complaint (After divorce) iii. Social purpose: Ensure domestic tranquility; after divorce, no more social tranquility needed

Conversion & Trespass to Chattels

• Elements of conversion and trespass to chattels: 1. Intent to interfere with use and enjoyment 2. Actual interference • Conversion and trespass to chattels are both intentional torts that protect a person's possessory interest in personal property. Although these are technically two separate torts, they are often discussed as one because the only distinction is the remedy for each. • Conversion provides that a possessor should be able to exercise dominion and control over property. When a defendant causes conversion, or irreparable damage, to plaintiff's property the only remedy is recovery of the full value of the property. • Factors to consider in determining conversion: o Extend and duration of control o Defendant's intent to claim a right to the property o Defendant's good faith o Harm done o Expense or inconvenience caused • Trespass to chattels involves a physical interference with the enjoyment of the full value of the property. Recovery will differ based on the circumstances of the trespass. • Factors to consider in determining trespass to chattels: o Defendant's dispossessing plaintiff of chattel o Chattel's impairment as to its condition, quality, or value o Plaintiff's deprivation of the use of chattel for a substantial time o Bodily harm caused to plaintiff or harm caused to some person or thing in which plaintiff has a legally protected interest • The key question is how substantially did the defendant interfere with plaintiff's possessory interest. Unlike with trespass to land, damage must be proven. • Compuserve v. Cyber Promotions held that defendant's "spamming" of plaintiff's clients resulted in trespass to chattels in that it slowed the server speed, angered customers resulting in lost business, and continued despite requests from plaintiff to stop. Even though no physical damage was proven, the harm shown was enough to justify the tort. • Dual Drilling v. Mills Equipment Investments held that the intentional destruction of the wrong rig left the chattel irreparable and the defendant liable for damages equal to the total value of the destroyed rig. Additionally, this case points out that Louisiana requires fault be found before conversion can be proven. Under the common law, strict liability allows liability to be found without fault.

Trespass to Land

• Elements of trespass to land: 1. Intent to enter land 2. Entrance on land • Trespass to land is an intentional tort that protects a person's property and privacy. The intent is to enter, not necessarily to trespass. Although, the individual does not necessarily have to enter; firing a bullet, squirting water, etc. would qualify. • Louisiana distinguishes between good faith and bad faith trespass. Good faith trespasses usually only require payment for damages. Bad faith trespasses usually result in additional payment in excess of damages. • Trespasses can occur in a number of ways: o Entering land in possession of another or causing a third party or thing to enter the land o Remaining on land after possessor withdraws consent o Failing to remove something from land possessed by another that one is under a duty to remove o Exceeding the permitted use of the land • Herrin v. Sutherland held that any sort of trespass that interferes with your use and enjoyment of your property can qualify as trespass to land. In this case, defendant fired a gun across plaintiff's property. You are entitled to control over not only your physical property but also the area above and below your property "from heave to hell." In this case, even though the bullet was neither fired nor landed on plaintiff's property it still qualified as a trespass. • Airplanes, for example, are immune to the "from heaven to hell" principle because simply flying over your house does not interfere with your use and enjoyment of your property.

Types of Consent:

• Expressed Consent • Fricke v. Owens-Corning Fiberglass held that defendant was not responsible for plaintiff's injuries because defendant gave expressed consent to descend into the tank to retrieve his fellow employee. Because neither party knew the tank contained poisonous mustard gas, the defendant is not liable for any harm plaintiff encountered when he willingly descended into the tank. Damages beyond what had already been awarded by Worker's Compensation were not granted. • Established Consent & Implied Consent o Cole v. Louisiana held that the prison riot training exceeded the scope of plaintiff's established consent, which was to expose himself to a substantially milder risk. By not adhering to the predetermined "safety word" or padding the police sticks, plaintiff was exposed to unnecessary and unanticipated force which vitiated his implied consent as a willing participant. Consent to certain forms of contact and harm that exceeds those expectations does not necessarily constitute a battery. It's when the contact exceeds the expectations. o Just because injuries are worse than you thought they would be, doesn't mean that the scope of the consent changes. o How much do you consent to in a football game? We need to define the scope of consent. You consent to a certain amount of contact beyond legal contact. But how far? • Duration of Consent o While the scope of consent given may usually be expressed, the duration of the consent given is rarely explicitly articulated. It is possible that uncompensated consent may expire, but there are no specific requirements that govern this principle. • Failure to Consent o Stephen K. v. Roni L. held that misrepresentation of defendant's use of birth control does not vitiate plaintiff's consent. Although a technical tort of battery may exist here, Church believes the court probably found in favor of defendant because it didn't want to open the floodgates to more litigation like this. What sort of damages could the defendant really recover? There are instances in which false representation can vitiate consent, but this was more of a social policy. Id dad had one, it would have been a strange outcome that would have been in the interest of the child. They are concerned about the public policy implications if they had ruled in favor of the father. o This contact was a different type of contact. It exceeded the scope of consent. (Barbara A. v. John G.) Therefore, lack of consent could have been proved and the court should have ruled for the plaintiff. o If you gain consent based on fraud then it should not count. If only one party is mistaken, then the consent is not valid. If both parties are mistaken then the consent is valid. o If you knew or should have known about it, you have to disclose it with a partner. (Ex: If one party has a venereal disease and does not inform their partner, there could be a tort for battery. If you should have known, it's at least negligence.) • Consent to Illegal Activities o In Louisiana, you cannot recover damages for a tort in which you consented to partake in an illegal act. (Ex: If you consent to a prizefight and loose, you cannot sue for damages from a broken nose or some other injury.) • Incapacity to Consent o There are situations in which we try to protect people by disallowing their consent. (Ex: Children cannot consent to certain acts, such as statutory rape, because it is believed that their consent is invalidated by their age and lack of understanding of what they are consenting to.) o Incapacity does not always transfer perfectly to an intentional tort. The facts of each particular case will determine its applicability. - FTC= the government is the plaintiff and they are immune from lawsuits. You can sue the gov't but you have to jump into a lot of hoops. The existence of an std vitiates the consent.

Landry v. Bellanger

• Landry v. Bellanger held that defendant had acted in self-defense in protecting himself from harm by plaintiff, who was heavily intoxicated and attempting to start an altercation with him. Additionally, this case eliminated the aggressor doctrine, which held that in all cases where the plaintiff was the aggressor he was barred from recovery for any damages. Instead, Louisiana adopted the comparative fault doctrine, which allocates plaintiff's recovery based on his percentage of fault. Assumption of the risk is similar to consent in intentional torts. This was reasonable response. The court eliminates any discussion on who was the aggressor. • Dicta- standard they woul use was comparative fault if they were both found to be intentional battereres. Landry v. Bellanger: Elimination of Aggressor doctrine Adoption of Comparative Fault A. Facts: After the patron verbally accosted the tortfeasor in the bar for a period of time and poked him in the chest, the tortfeasor invited the patron outside. The patron bumped the tortfeasor with his chest, and the tortfeasor hit him once in the head. The patron sued to recover for damages resulting from injuries sustained as a result. B. PP: Plaintiff bar patron filed an action against defendant tortfeasor to recovery for damages resulting from injury sustained in physical altercation. The trial court rendered judgment for the patron because his injuries were a result of a battery by the defendant. Bellanger was the aggressor. His actions were totally unnecessary and it was not self defense. According to 2323 C., Landry's actions can have no effect on the liability of Bellanger and the damages recovered by Landry. The Court of Appeal First Circuit, Parish of Lafourche (Louisiana), refused to apply La. Civ. Code Ann. art. 2323(C) and concluded that fault should be apportioned between the parties. The reason is 2323 C. applies to negligence by the plaintiff, not when the fault is intentional. Because the plaintiff's acts were found to be intentional, the case warranted a comparitive fault analysis. After reviewing the evidence, the court found that fault should be apportioned equally between the 2. The tortfeasor was granted a writ of certiorari. C. Is the aggressor doctrine still a valid defense? Was this a reasonable response in self defense? Art. 2315- a person may recover damages for injuries caused by the wrongful act of another. Fault is the baiss for tort liability Art. 2323. Comparative fault A. In any action for damages where a person suffers injury, death, or loss, the degree or percentage of fault of all persons causing or contributing to the injury, death, or loss shall be determined, regardless of whether the person is a party to the action or a nonparty, and regardless of the person's insolvency, ability to pay, immunity by statute, including but not limited to the provisions of R.S. 23:1032, or that the other person's identity is not known or reasonably ascertainable. If a person suffers injury, death, or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death, or loss. B. The provisions of Paragraph A shall apply to any claim for recovery of damages for injury, death, or loss asserted under any law or legal doctrine or theory of liability, regardless of the basis of liability. C. Notwithstanding the provisions of Paragraphs A and B, if a person suffers injury, death, or loss as a result partly of his own negligence and partly as a result of the fault of an intentional tortfeasor, his claim for recovery of damages shall not be reduced. A. Decision: 1. The aggressor doctrine is inadequate and is no longer to be used because it creates a contributory negligence allotment of damages. 2. Plaintiff's behavior is to be a factor in the duty/risk analysis 3. In this case, the Bellanger was acting in self-defense and thus deserves no fault. C. Reasoning:: 1. LA is a pure comparative fault system whereby all contributing fault must be compared. 2. Aggressor Doctrine inconsistent with comparative fault (Article 2323): All persons' fault must be calculated. Aggressor doctrine = Contributory negligence (completely bars the recovery of injury victims because of their fault) 3. Also, the victim's awareness of danger is among the factor's considered in assessing fault percentage. 3. Limitation of Comparative fault: "if a negligent plaintiff is injured as a result of the fault of an intentional tortfeasor, his claim for recovery shall not be reduced by his percentage of fault" In other words, if there is plaintiff negligence, the percentage of fault has to be determined, but because of the fault of the intentional tortfeasor, the recovery of damages by the plaintiff cannot be reduced. The reason for this rule is because the legislators contend that in a moral sense, an intentional actor who is at fault should not benefit from a reduction in damages inflicted on a culpable negligent victim. But all in all, this section does not apply because the plaintiff or victim was not negligent; his actions were intentional. (appellate court was correct in this application) 4. Again, For self-defense to hold: a true defense 0. Victim's behavior must be beyond provocation 1. Must be an actual or reasonably apparent threat to the claimant's safety 2. NOT a desire for revenge or retaliation 3. No excessive force 4. Mere word or threats to not justify an apprehension of immediate harm 5. THIS CASE: Bellanger acting in SELF DEFENSE even though he did commit a battery iv. La. R.S. 9:2800: No person shall be liable for damages... sustained by a perpetrator of a felony offense during the commission of the offense or while fleeing the scene of the offense. However, the provision of this Section shall not apply if injury to or death of a perpetrator results from an intentional act involving the use of excessive force.- aggressor doctrine (not affected by Landry) v. Danger to life or limb Reasonably apparent- self defense cannot be based on mere words. A. Words alone insufficient though they may be: mitigating factors in allocating damages B. When are words ever alone? C. Social Policy: Peaceful society D. Reasonableness of threat is determined by trier of fact

Negligence Per Se

• Sometimes a court will adopt a statute as the standard of care of the reasonable person under the circumstances. The court will adopt a statute as the standard of care when the plaintiff is within the class of persons the statute was exacted to protect and when the risk was within the class of risks the statute was enacted to guard against. • Statutes here are not tort statutes. They are regulations that exist for reasons other than torts. (Pedestrian car statutes- this is a tort statute, the pedestrian always wins). • Enables the court to mold standards of conduct in penal statutes into rules of civil liability • Negligence per se is not a separate theory. It is part of the theory of negligence that allows you to use a statute to show there was a breach of duty. • In Louisiana (and most other jurisdictions) negligence per se serves as mere evidence or a guideline. The statute is included in the jury instructions, but they may disregard it if they choose. • Declaring conduct negligent per se is rendering the conduct negligently as a matter of law. The person whose conduct is negligent cannot escape liability by proving their action was reasonable. However, plaintiffs In negligence per se cases must still establish causation in fact, legal cause, and damages. • It's the courts job to adopt the standard of liability for criminal conduct.

True Privileges

• True privileges license certain classes of actors to violate the rights of others in certain circumstances. (Ex: parents, teachers, principals, etc.) These classes of actors are usually armed with true privileges to protect either their own rights or the rights of others.