Author: Anonymous
School: UC Davis School of Law
Professor: Professor Johns, Fall 2002
Text: Prosser, Wade, Schwartz, Kelly
I. Torts: A civil wrong, other than a breach of contract, for which the law provides a

remedy.

A. Major purposes of tort law:

1.      Provide a peaceful means for adjusting the rights of parties who might otherwise “take the law into their own hands”; providing a remedy in court

2.      Deter misconduct

3.      Encourage socially responsible behavior, safety

4.      Restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury

B. Sources of authority

1.      Primary authorities:

• Constitution (US & State)
• Statutes
• Higher Court w/in jx

2.      Secondary authorities (not binding, but persuasive):

• Common law in another jx
• Restatements

C. Basis of liability: Largely fault-based: In general, no tort liability (eg. driver who suffers seizure while driving).  Fault: intentional or negligent (ie. falling below the standard of care) misconduct.

D. Tort analysis:

1.      ¶ proves elements of tort

2.      Δ has reasons of defense (can concede elements, but must introduce reasons)

 

II. Intentional Torts

• Doctrine of Transferred Intent:  5 torts that fell w/in the trespass writ: battery, assault, false imprisonment, trespass to land, and trespass to chattels.  When the Δ intends any one of the five, and accidentally accomplishes any one of the five, the doctrine applies and the Δ  is liable.

A.     Battery

1. External manifestation of will (Act)

a.       Act: External manifestation of the actor’s will and does not include any of its results.

b.      Illustrations:

• Movement of arm in swinging a low-boy leg
• Removing a chair from underneath an elderly woman
• Hugging a co-worker in a “friendly, unsolicited hug”
• Throwing a stick
• Grabbing a plate from another’s hand and shouting

2. Desire to cause consequences OR knowledge to “a substantial certainty” that consequences will result at the time of the act (Intent)

a.       Intent: Actor ⁽¹⁾ desires to cause consequences of his act, OR ⁽²⁾ that he believes that the consequences are substantially certain to result from it.

b.      28 states of mind…infer intent from the circumstances, facts

Possible states of mind:

• Desire to cause harmful (e.g. physical impairment, pain, or illness) OR offensive (offensive to a reasonable sense of personal dignity) contact to ¶ or another
• Knowledge to a substantial certainty that act will cause harmful or offensive contact to ¶ or others.
• Transferred intent: between people, torts

c.       Illustrations:

• Desire to strike another and injure; cause harmful contact
• Knowledge to a substantial certainty that moving the chair (ie act) would result in “contact or apprehension”
• Desire to cause offensive contact by giving an unsolicited hug or grabbing a plate out of one’s hand (objects are considered “intimately connected” to body)
• Imminent apprehension of contact by throwing stick to scare others or intent to cause offensive contact with an unsolicited hug, but instead causing harmful contact = transferred intent.

3. Harmful contact (e.g. pain, illness, physical impairment) OR offensive contact to a reasonable sense of personal dignity.  Physical contact must result, but it does not have to be directly w/ the body (ie. can be via an object). (Effect)

a.       What Constitutes Bodily Harm: Any physical impairment of the condition of another’s body, or physical pain or illness.

b.      What Constitutes Offensive Contact: A bodily contact is offensive if it offends a reasonable sense of personal dignity.  (Caveat: The Institute expresses no opinion as to whether the actor is liable if he inflicts upon another a contact which he knows will be offensive to another’s known but abnormally acute sense of personal dignity.)

c.       Illustrations:

• Being struck in the head by a lowboy
• Falling on the ground and breaking hip
• Suffering sharp pains and becoming paralyzed on left side of face
• Getting hit by a stick
• Having plate grabbed from your hand (some items considered so intimately associated w/ person)
• Personal dignity offended and high degree of embarrassment

4. Direct or indirect connection between act and effect (Causation)

a.       Illustrations:

• Direct: Low-boy leg to ¶ head
• Indirect: Δ.moving chair and ¶ falling to ground.  (Connection is w/ ground).

5. Compensable injuries (e.g. wage loss, pain and suffering) or punitive.  Were there actual damages (ie. compensatory)?  (Damages)

a.       Policy: Compensate people for their injuries; Make people financially responsible for acts; Encourage safety

• People liable regardless of mental capacity b/c goal is to compensate people for harm done (don’t use criminal law standards of mental illness).  Person is not morally culpable, only liable for compensation.

b.      Illustrations:

• Physical injuries
• Mental injuries as result of intentional tort
• If the plate was removed from in front of the victim instead of from his hand, would that constitute battery?
  • No unless imminent apprehension was caused (transferred intent from assault).  Otherwise, need the physical contact.

6. Hypothetical:

 

B.     Assault

1. External manifestation of Δ’s will

a.       Illustrations:

• Swinging a hatchet
• Making a motion to touch ¶ from behind a counter.
• Words w/ a gesture (if intent and imminent apprehension fulfilled)

2. Desire to cause consequences from Δ’s act or knowledge to a substantial certainty that consequences will result from act; Transferred intent

– What is Δ’s subjective state of mind?  What contact was Δ intending?

a.       28 states of mind

Possible states of Mind:

• Desire to cause imminent apprehension of harmful or offensive contact to ¶ or another.
• Knowledge to a substantial certainty that act will cause imminent apprehension of harmful or offensive contact to ¶ or another.

b.      Illustrations:

• Intent to cause contact w/ door (trespass to land—transferred intent)
• Intent to cause offensive contact (to a reasonable sense of personal dignity) by reaching over the counter to touch a young woman

3. ⁽¹⁾ Imminent apprehension of ⁽²⁾ harmful and offensive contact.  Imminent apprehension that contact will result unless prevented.  Distinguish from fright.

– (i.e. Must examine ¶’s state of mind.  Did ¶ experience imminent apprehension or harmful or offensive contact?  Did ¶ believe act would occur w/o intervention—eg. self-defense, third party—and w/o significant delay?)

– Fear is not necessary, only certainty that contact will result.

a.       What Constitutes Apprehension: Victim must believe that the act may result in imminent contact unless prevented from so resulting by the other’s self-defensive action or by his flight or by the intervention of some outside force.
– Comment b: Distinction between apprehension and fright.  It is not necessary that the other believe that the act done by the actor will be effective in inflicting the intended contact upon him.  It is enough that he believes that the act is capable of immediately inflicting the contact upon him unless something further occurs…(ie. apprehension: being afraid not required)

b.      Unreasonable Character of Apprehension: If the act is intended to put another in apprehension of immediate bodily contact, and succeeds in so doing, the actor is subject to liability for an assault although his act would not have put a person of ordinary courage in such apprehension.

c.       Apprehension of Imminent and Future Contact: (1) To make the actor liable for an assault he must put the other in apprehension of an imminent contact.

– Comment b: “Imminent” does not mean immediate, in the sense of instantaneous contact, as where the other sees the actor’s fist about to strike his nose.  It means rather that there will be no significant delay.

d.      Ability to Carry Out Threat: Not necessary that Δ believes that he has the ability to inflict the harmful or offensive contact which his act apparently threatens.  (However, the more impossible act will happen, the less likely a jury will believe ¶)

e.       Policy: Peacekeeping device

f.        Illustrations:

• Imminent apprehension demonstrated when ¶ jumps back and away from Δ’s hand.  It is irrelevant whether Δ had ability to actually touch ¶ or not.
• Imminent apprehension that ¶ may get hit by a hatchet.

4. Direct or indirect connection between act and effect.

a.       Illustrations:

• Direct: imminent apprehension results when ¶ believes she may be hit w/ a hatchet or when ¶ jumps away when Δ makes motion to touch her.

5. Nominal, compensatory, punitive damages

a.       Policy:

1.      Nominal: Deter, preserve peace, protect sanctity of being & home, vindict a right where no actual damages were suffered or incurred.

2.      Compensatory: Compensate ¶ for injuries actually suffered or occurred

3.      Punitive: To punish Δ and deter others from engaging in antisocial conduct.

6. Note:

a.       Assault does not always accompany battery.  If no imminent apprehension of contact, then no assault (e.g. getting hit from behind and not seeing the attacker beforehand.)

b.      The difference between battery and assault is the effect on the ¶

c.       Assault reflects shifting community standards and is contextual, dependant on societal mores—what contact is considered harmful or offensive?

 

BATTERY	ASSAULT
Act: External manifestation of will	same
Intent: 28 states of mind; Transferred intent	same
Effect: Harmful or offensive contact	Imminent apprehension of harmful or offensive contact
Causation: Direct or indirect connection between act and effect	same
Damages: Nominal, compensatory, punitive	same

 

 

C.     False Imprisonment

1. External manifestation of Δ’s will

a.       Illustrations:

• Being confined in a nursing home, restraint chair, or police car.
• Failure to act after assuming a duty to act.  E.g. failing to allow a passenger off a boat when undertook a promise/obligation to.

2. Desire to cause consequences or knowledge to substantial certainty that consequences will result; Transferred intent

a.       Illustrations:

• Intent to confine individual in a nursing home, restraint chair, or police car.
• Desire confinement of ¶ on a boat.

3. Confinement w/in boundaries fixed by Δ which ¶ is conscious of (i.e. not sleeping or unconscious) OR harmed by

a.       What Constitutes Confinement: ⁽¹⁾ Boundaries fixed by the actor must be complete. ⁽²⁾ The confinement is complete although there is a reasonable means of escape, unless the other knows of it.  ⁽³⁾ The actor does not become liable for false imprisonment by intentionally preventing another from going in a particular direction in which he has a right or privilege to go.

• Physical Barriers
• Physical Force
• Threats of Physical Force
• Other Duress:

–     Very narrow definition: threat to immediate family or ¶’s property only.

–     Comment a…There may be confinement by submission to a threat to inflict harm upon a member of the other’s immediate family, or his property.

• Asserted Legal Authority:

–     Δ bears burden to prove properly asserted legal authority

b.      Knowledge of Confinement: No liability unless the person physically restrained knows of the confinement or is harmed by it.

c.       Refusal to Release or to Aid in Escape: If the actor is under a duty to release the other from confinement, or to aid in such release by providing a means of escape, his refusal to do so with the intention of confining the other is a sufficient act of confinement.

d.      Policy:

• Check on legal authority, and uphold citizens’ civil rights.
• Uphold Due Process, so that citizens know what they’re being charged for.

e.       Illustrations:

• Confinement by keeping ¶ physically w/in nursing home.
• Confinement by physical force by placing ¶ in restraint chair.
• Threatening to put ¶ into restraint chair if ¶ wouldn’t comply with Δ’s wishes.
• Confinement by physical barriers includes water around a boat when stranded on boat.
• ¶ aware at the time of confinement that he is being confined (e.g. in a police car)
• Wrongful assertion of legal authority: Law enforcement officer putting one into a police car for no valid reason or taking a ¶ in to jail on an unrelated charge or unarrestable charge (e.g. dog leash violation is not an arrestable charge).
• Refusal to release ¶ from nursing home when under a duty to do so.
• Duress does not include reputation or job; it is limited to harm of immediate family or physical property.

4. Direct or indirect connection between act and effect

a.       Illustrations:

• Direct: Confinement in nursing home against ¶’s will directly resulted in ¶’s injuries, including losing 30 lbs.
• Indirect: The confinement in police car did not in itself cause injury, but unlawful confinement caused ¶ to be released in a golf course where he wandered out onto the highway and was hit.
• Must be a connection between confinement and ¶’s unwillingness to be confined.  If ¶ actually wanted to be there, then no liability.

5. Damages: Nominal, compensatory, punitive

a.       Policy:

– Punitive: to ensure legal authority does not overstep its boundaries.

6. Note: Consider other torts to charge Δ w/ if no specific statute to address the problem.

• In nursing home case, consider assault and battery.  ¶ was unlawfully threatened and put into restraint chair (e.g. harmful/physical contact, and imminent apprehension of harmful/offensive contact)
• Where police arrested citizen for non-arrestable charge (dog leash violation), could also be battery (act: grabbing her arm), and assault (if she saw him coming at her and experienced immediate apprehension)

 

D.    Trespass to land

1. Act by Δ: External manifestation of Δ’s will

a.       Liability for Intentional Intrusions on Land:  One is liable to another for trespass, irrespective of whether harm caused to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or third person to do so, or (b) remains on the land, or (c) fails to remove from the land a thing which he is under a duty to remove.

b.      Intrusions Upon, Beneath, and Above Surface of Earth:

(1)   Except as stated in Subsection (2), a trespass may be committed on, beneath, or above the surface of the earth.

(2)   Flight by aircraft in the airspace above the land of another is a trespass, if, but only if,

(a)    it enters into the immediate reaches of the air space next too the land, and

(b)   it interferes substantially with the other’s use and enjoyment of his land.

 

c.       Policy:

• Common use of the action of trespass is to obtain a determination of a ¶’s right to exclusive possession.
• But trespass is limited to prevent the floodgates, namely protecting industry.

d.      Illustrations:

• Δ surveying the land as if it’s his own (includes stepping onto the land).
• Operating smelter factory.  Intrusion of smelter from a neighboring factory onto a neighbor’s property.
• Shooting a shotgun at water fowl flying over ¶’s property—even if shots fired from one standing outside the property.
• Failure to act when under a duty.  Failing to remove a post for a snow fence by a government agency onto private property.

2. Intent: Desire to cause consequences to KSC that consequences will result; transferred intent.

a.       Intended Intrusions Causing No Harm:  If intentionally enter land in the possession of another, liability to the possessor for a trespass, although his presence on the land causes no harm to the land, its possessor, or to any thing or person in whose security the possessor has a legally protected interest.

b.      Intention.  The intention which is required…is an intention to enter upon the particular piece of land in question, irrespective of whether the actor knows or should know that he is not entitled to enter.  It is, therefore, immaterial whether or not he honestly and reasonably believes that the land is his own, or that he has the consent of the possessor or of a third person having power to give consent on his behalf, or that he has a mistaken belief that he has some other privilege to enter.

c.       The wrong for which a remedy is given…consists of an interference with the possessor’s interest in excluding others from the land.  Consequently, even a harmless entry or remaining, if intentional, is a trespass.  This is true even though the possessor benefits from the trespass, as where the trespasser tears down a worthless building or prepares a field for cultivation…

d.      Illustrations:

• Δ intended to be on the piece of property that was in possession of another (even if he didn’t know).
• Δ intended to produce smelter that would knowingly go onto a neighbor’s property, and knowledge to a substantial certainty that wind, and other factors could blow the smelter
• Δ intended to shoot at water fowl over ¶’s property.
• Intent to leave post on property when a duty to remove.
• Transferred intent: Death by battery (being thrown from lawn mower after lawn mower hit a fence post).  Intended trespass, but caused battery.

 

 

3. Effect:  Intrusion on land in possession of another.

a.       Illustrations:

• A bullet flying into the air space of land in the possession of another.
• Intrusion of smelter onto property.
• Allowing the post to remain on private property.

4. Causation: Direct or indirect

a.       Illustrations:

• Direct: Bullet shot by one intending to shot over another’s property.
• Indirect: Δ liable for consequences resulting in his trespass.  e.g. If he failed to remove a snow fence post when under a duty, Δ is liable.
• Indirect: Factory operates and smelter comes onto ¶’s property.

5. Damages: Nominal, compensatory, punitive

a.       Policy:

• Original rule: Nominal damages if no damage to the land done because it asserts the owner’s title, and avoids adverse possession.  Resolve whose land it is, and thereof, prevent encroachments (intentional or inadvertant).
• In case of air pollution, actual damages needed otherwise will burden the court system.
• Protects sanctity of property (use and enjoyment) and the right to exclude
• If potential for injury is great, and not inconsequential, then justifiable for damages.

b.      Illustrations:

• In order to protect industry, matter (e.g. air pollutants) have to accumulate and cause substantial damages.  With the case of a factory/manufacturing plant, nominal damages will not be effective.
• Shooting a gun has great potential for injury and damages.  Award nominal damages to prevent potential damages.
• Compensate for death of victim, but not punitive.

 

E.     Trespass to chattel

1. Act: External manifestation of will.

a.       Illustrations:

• 4-year-old sitting on a dog and pulling his ears.
• Sending unsolicited e-mails

2. Intent: 28 States of Mind

Possible states of mind:

• Intent to intermeddle with personal property
• Desire to intermeddle with personal property

a.       Illustrations:

• Intended and desired to send unsolicited e-mails.
  • Impairment of chattel (quality, condition, or value)
  • Substantial deprivation
  • Bodily or other harm

3. Effect: Harmful intermeddling with personal property

 

a.       Illustrations:

• No harmful intermeddling and long-term damage to dog by 4-year-old sitting on its back and pulling its ears.  No substantial deprivation.
• No injury to possessor of dog by actions of 4-year-old girl.
• Harmful intermeddling (impaired chattel) by using server space and server not working as well.  Spam also took up time, equipment
• Harmful intermeddling (bodily or other harm to owner of the chattel): Harming a legally protected interest: business and relationships with customers.

4. Causation: Direct or indirect causal connection between act and effect
5. Damages: Compensatory

a.       Policy:

• Must show harm.  No nominal damages because want to avoid overburdening the court with petty breaches of personal property.

 

F.      Conversion

• What Constitutes Conversion

Conversion is an intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. 

1. External manifestation of will

a.       Illustrations:

• Copying software of employer
• Taking another’s horse for a ride

2. Desire or knowledge to substantial certainty

a.       If Δ intends to affect the chattel in a manner inconsistent with the ¶’s right of control, the fact that he acted in good faith, and under a mistake, does not prevent liability for conversion.

b.      Illustrations:

• Desire to have software for own use
• Desire to ride horse

3. Serious interference with personal property justifying forced sale

a.       Illustrations:

• Computer code = literary work.
• Not serious or harmful intermeddling if horse not harmed by Δ’s riding it.
• Information, if taken unlawfully, is not conversion if the papers are returned to owner before working hours again.  Thus, the only thing really taken is the image of the papers.  No serious interference, no conversion.

4. Direct or indirect connection between act and effect
5. Compensatory (full value) or punitive (always severe)

a.       Illustrations:

• Stealing the creative product of someone else and using it to create own business is bad faith and unjust enrichment.
• Facts and information not viewed as property, a tangible commodity.  Thus, if no damage to property, no conversion.
• Damages awarded on market value of the item.

 

 

CONVERSION	TRESPASS TO CHATTEL
Act: External manifestation of will	same
Intent: Desire or knowledge to substantial certainty	28 states of mind
**Effect: Serious interference with personal property justifying forced sale	Harmful intermeddling with personal property
Causation: Direct or indirect connection between act and effect	same
Damages: Compensatory (full value), punitive (always severe)	Compensatory

 

G.    Intentional Infliction of Emotional Distress (IIED)

1. Extreme and outrageous conduct by Δ

a.       Outrageous Conduct Causing Severe Emotional Distress

(1)   One who by extreme and outrageous conduct intentionally or recklessly (i.e. state of mind of Δ) causes severe emotional distress to another is subject to liability for such emotional distress, and if (i.e. not required) bodily harm to the other results from it, for such bodily harm.

(2)   Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a)    to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b)   to any other person who is present at the time, if such distress results in bodily harm.

 

– Comment d. Liability has been found only where Δ’s conduct has been 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.  Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!”

b.      Policy:

• To establish a code of conduct
• Deter future antisocial behavior
• Mental well-being as a value in itself worthy of protection.

c.       Illustrations:

• Members of a garbage collecting association threatening to beat up another garbage collector, cut his truck tires or burn the truck, or put him out of business if he didn’t go to the Ass’n meeting that night and arrange to comply with the Assn’s wishes and repay another member.
• Store employee to customer: “If you want to know the price, you’ll have to find out the best way you can…you stink to me” is not antisocial enough.
• Daughter witnesses her father being beaten up on Christmas Day.
• Supervisor mimicking a speech impediment of his worker.

2. Intent or recklessness; Limited transferred intent

a.       Transferred intent is limited to cases where ^(a) ¶ is a member of person’s immediate family who is present at the time of the act; ^(b) ¶ is any other person who is present at the time, if duress results in bodily harm.  (In CA, Δ is required to know of the presence of a 3^rd party.)

b.      Intention and recklessness.  The rule stated in this Section applies where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct.  It applies also where he acts recklessly…in deliberate disregard of a high degree of probability that the emotional distress will follow.

c.       Illustrations:

• Δ thought: “I want this conduct to cause dehabilitating distress.”
• Δ ignored possibility and probability that severe emotional distress would be suffered when imitating co-workers speech impediment.
• Words must intend to have real meaning and serious effect.  e.g. A comment, “If you want to know the price, you’ll have to find out the best way you can…you stink to me” from a grocery store employee to a customer does not show requisite intent.
• For transferred, Δ must be aware of or aware to a high degree of probability that there may be an immediate family member present when committing the act.
  • If Δ not aware of family member present while father is being beaten, no liability.  Nor is there liability if no evidence beating was to make her suffer emotional distress or Δ know to a substantial certainty to be produced by Δ’s conduct.

3. Severe emotional distress experienced by ¶

a.       Policy:

• Not to open the floodgates, but to compensate for behavior that is not worthy of protection from the law.  To avoid floodgates, ¶ holds burden to prove severe emotional distress.
• Finally can recognize tort of emotional distress and injury.
• Keeping lawsuits within reasonable bounds and not overburdening the court system (keep costs down).  Some rude behavior will have to be tolerated.
• Jury can sort out frivolous claims.  It is easier to determine whether mental distress resulted from intentional misconduct than to determine whether physical injury resulted from mental distress.

b.      Illustrations:

• If a prior condition exists, must demonstrate that condition has significantly worsened and is more dehabilitating.
  • e.g. If one who has a previous condition of stuttering, but is made fun of by his manager, and claims his condition was worsened, ¶ must have documentation to prove claim.
• Racial, religious, ethnic slurs, victim’s sensitivity can add to severity.

4. Direct, Indirect connection between act and effect
5. Compensatory and punitive

a.       Nominal damages not awarded because liability only found if behavior is severe.

b.      Punitive damages almost always justified because the conduct is judged outrageous and intolerable.

6. IIED History:

• No recovery for emotional distress
• Assault: Recovery for imminent apprehension of harmful or offensive contact
• Parasitic recovery where technical tort shown (e.g Fisher– battery when plate grabbed, but also suffered emotional distress)
• Recovery for parties in special relationships (e.g. funeral homes, telegrams)
• 1934 Restatement: Recovery for negligently inflicted physical injury resulting in IIED
• 1948 Restatement: Recovery for IIED (Siliznoff case: Supreme Court approves the cause of action in dicta)—not all states have followed CA’s adoption of this new Restatement.

 

III. Privileges: Defendant’s Affirmative Defenses

A.     Consent: ¶’s consent to the Δ’s conduct may prevent Δ from being liable for an intentional tort.

1. Meaning of Consent.

(1)   Consent is willingness (i.e. ¶’s subjective willingness) in fact for conduct to occur.  It may be manifested by action or inaction and need not be communicated to the actor.

• A ¶ holding up her arm to be vaccinated and not voicing an opinion not to be vaccinated is communicated that ¶ consented.

(2)   If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.

2. Effect of Consent.

(1)   One who effectively consents to conduct of another intended his interests cannot recover in an action of tort for the conduct or for harm resulting from it.

(2)   To be effective, consent must be

(a)   by one who has the capacity to consent or by a person empowered to consent for him, AND

• Physician must be authorized by patient to give consent to doctor while patient is unconscious—not just present for mental well-being of patient.

(b)   to the particular conduct, or to substantially the same conduct

• NFL player only consents to some contact, but not all contact.  A blow to the neck after a play is over would not be within the particular conduct consented to.

(3)   Conditional consent or consent restricted as to time, area or in other respects is effective only within the limits of the condition or restriction

(4)   If the actor exceeds the consent, it is not effective for the excess.

• Actor exceeded consent when he intentionally hit another player after the play ended during a professional football game.  Victim only consented to roughness w/in the rules of the game, and perhaps general customs…but not to blow to the neck outside of play.

(5)   Upon termination of consent its effectiveness is terminated, except as it may have become irrevocable by contract or otherwise, or except as its terms may include, expressly or by implication, a privilege to continue to act.

3. Types of consent

a.      Express consent

(1)   Illustrations:

• NFL player consents to violence within the game and perhaps general customs (i.e. incidental contact and customarily tolerated behavior) of the game.  League rules specifically indicate what conduct is ok and not ok.
• Patient consents to operation of right ear.

b.      Apparent or Implied consent

(1)   Illustrations:

• Inaction implies manifestation of consent (ie. Δ could reasonably believe consent) when ¶ holds up her arm to a doctor who is vaccinating.

4. When consent not a defense (exceptions):

a.      Consent Under Mistake, Misrepresentation or Duress

• ¶ was misinformed and really didn’t need to get the shot to get off the boat, so therefore, consent was given under misrepresentation.
• If one accompanying the doctor to a woman giving birth, it is assumed that he is medically trained.  Thus, consent for the one to enter the room is consent under mistake, and not valid consent.  Δ has a duty to disclose if consent is by mistake.
• ¶, a young woman, is separated from her family, and the only way you can get off the boat is to get vaccinated could be construed as duress.

b.      Consent to Crime—split in jx

(1)   Majority: No recovery; consent IS consent

• Death or injury occurred during an unlawful prize fight is not covered by tort.  Since prize fighting is unlawful activity, can’t reward the one who got the worse consequence.
• If one engages in unlawful activity, he is liable for the consequences that result.

(2)   Minority: Can recover

 

 

c.       Emergency Action Without Consent

Conduct that injures another does not make the actor liable to the other, even though the other has not consented to it if

(a)    an emergency makes it necessary or apparently necessary, in order to prevent harm to the other, to act before there is opportunity to obtain consent from the other or one empowered to consent for him, and

• Needs to be an emergency situation.  As long as injury is not life threatening, patient still has choice of operation or not.  Patient retains right to consent re: own body, and to protect personal dignity.

(b)   the actor has no reason to believe that the other, if he had the opportunity to consent, would decline.

 

B.     Self-Defense/Defense of Others/Defense of Property

1. In general, anyone is privileged to use reasonable force to defend himself against a threatened battery/assault/trespass on the part of another.  Burden of proof is on the Δ.
2. Amount of force: Privilege limited to the use of force that is (or reasonably appears) to be necessary for protection against a threatened battery.  Proper considerations include differences in age, size and relative strength.  Humans are considered more valuable than property.  Use of force must be reasonable under the circumstances; no death or serious bodily harm unless a person reasonably believes that his life is in danger.

– When protecting property, the purpose is to prevent a break-in, not punish the person who does.  With real property, generally, the use of force is unreasonable as the property isn’t going anywhere; the remedy, then, is the law/lawyers.

– More leeway to reasonableness of force when burglarized at night.

– Usually a jury question in deciding whether force is reasonable.

(1)   Illustration:

• Using a spring gun to protect an unoccupied spring house is excessive use of force.

 

C.     Recovery of Property

1. Amount of force: Force must be reasonable—no deadly or serious bodily injury force.
2. Fresh pursuit: Reasonable force can only be used when in fresh pursuit

(1)   Illustrations:

• Stove purchased with bad credit; defendants can use reasonable force in retrieving property if necessary and in fresh pursuit.

3. Shopkeepers’ privilege: in order to prevent shoplifting, shopkeepers have a reasonable period of time in which they can detain suspected shoplifters.  Can also search backpacks, purses.

(1)   Illustrations:

• Suspected thefts can be retained outside the premises if detention is reasonable (in reason and in time).
• Person detained for 20-30 minutes while the police called is ruled reasonable.

D.    Necessity

1. Public: A public entity is privileged to enter land or interfere with chattels if it reasonably appears necessary to avert a public disaster (i.e. sacrifice one’s property for the good of many).  The individual must act in good faith.  No compensation is required.  (But today, insurance could be the answer.)

(1)   Illustrations:

• A public official’s decision to blow up a house to try and contain a city-wide fire is privileged, and thus, no compensation is given.

2. Private: A person is privileged to enter land or interfere with chattels in the possession of another where entry or interference is necessary to protect any person from death or serious bodily injury, or necessary to protect any land or chattels from destruction or injury.  However, the privilege is incomplete: Δ must compensate for harm done to land or chattels.

(1)   Illustrations:

• Δ liable for damages to ¶’s dock resulting from Δ’s intentional tying his boat to ¶’s dock [i.e. trespass intended] during a storm in order to protect his boat.  Δ incurred a benefit at ¶’s expense.  Does not reflect moral fault.

E.      Justification: Δ can assert reasonable authority to protect self or others (usually dictated by policy)

(1)   Illustrations:

• School bus driver with rowdy kids can take reasonable steps to protect property (i.e. bus) and to honor their duty as a protector of children.

 

IV. NEGLIGENCE

A.     Elements

1. Duty of Δ to create reasonable care under circumstances

a.       Objective standard of reasonable care.  Not based on moral fault.

b.      Require people to eliminate all unreasonable risk; everyone has a duty to provide reasonable care to prevent harm to others.

c.       “Reasonable care” is fact-specific

2. Breach of duty to use reasonable care by Δ
3. CIF: Δ’s breach of duty caused injury to ¶
4. Proximate Cause: For fairness & policy reasons, Δ should be liable to ¶ for injuries

a.       Requires sufficient/fair connection between what Δ did wrong and how much Δ should pay

5. Damages: No nominal. Compensatory required

 

B.     Determining the DUTY

1. Learned Hand Formula: B < PL (burden, probability, magnitude)

a.      HIGH risk and LOW burden, usually have DUTY to take precautionary measures

i.                     Gulf Refining Co: Exploding gas drum w/ defective caps.  Δ has duty to customers that drums in good condition.  Burden low (throw away old drums), utility low (no use for old barrels), and risk extremely high.