Torts I 2008 Professor Kornfeld ISSUES NEGLIGENCE • Duty o Foreseeable Victims (Palsgraff) Andrew’s dissent - duty owed to the world o Duty to Aid o Land Occupier Duty o Immunities Family - w/o immunity can implead parents for N • Breach of the Standard of Conduct o Res Ipsa Loquitor o Children o Professional’s/Doctor’s Standard Informed consent o Emergency Exception o Disabilities o Sudden/Unforeseen Incapacities o Negligence Per Se • Cause o But For o Loss of Survival o Substantial Factor o JSL Market Share • Proximate Cause o Foreseeable type of harm Eggshell Plaintiff - take P as is o No superseding, intervening force o Polemis/Direct Connection Test o Andrew’s dissent - foreseeability in hindsight • • • • • • • NEID o Direct Victims o Bystanders o Future NEID • Wrongful Death • Survivorship Actions • Loss of Consortium • Wrongful Conception/Birth/Life • Negligently Inflicted Economic Loss • Defenses o Contributory o Comparative o AOR UNKNOWN Ds • RIL o Ybarra • Substantial Factor o Both Neg and Both Cause • Redundant Actions o Both Neg and 1 Cause o Summers v. Tice • Acting in Concert o aid, encourage INTENTIONAL • Intent o Purposeful o Knowing o Transferred Intent • Battery • Assault • False Imprisonment • Malicious Prosecution • Abuse of Process • IIED o Reckless • IICR/IIEE • Wrongful Discharge • Implied Covenant of Good Faith and Fair Dealing o Bad Faith Denial of a K (Mini Tort) • Fraudulent Misrepresentation 1
Torts I 2008 Professor Kornfeld TORTS OUTLINE 1) INTENTIONAL TORTS a) Intent i) Definition - Intent is formed if an action is 1. Purposeful 2. Knowing a. Test: Substantial Certainty b. Subjective test – actual knowledge (i) Garret v. Dailey (5 year old didn’t want to aunt to fall and hurt herself when he moved her chair, but knew that falling would be the result) ii) Transferred Intent 1. Elements a. D intends to commit a tort against P but (negligently) commits a different tort against P b. D intends to commit tort against P1 but commits it against P2 c. D intends to commit tort against P1 but commits a different tort against P2 2. Historically limited to 5 intentional torts: battery assault, false imprisonment, trespass to chattel and trespass to land iii) Mistake Doctrine 1. Mistake is not a defense to intentional acts, unless P induced the mistake iv) Insanity and Infancy are not defenses b) Battery i) Elements 1. D intentionally causes 2. un-consented contact 3. with P’s person that is 4. harmful or offensive ii) Notes 1. offensive is objective – what society feels is acceptable a. exception when D knows P is unusually sensitive 2. consent is presumed for ordinary contact of everyday life 3. P’s person includes anything connect to P (clothing, purse, can if in it) 4. Intent to do battery not required, only to make contact 5. egg shell P – D liable for all harm that results if only a minor battery was intended a. you take the P as you find him 6. victim does not have to be aware of contact a. unconscious 7. Respondeat Superior – employer responsible for employee’s action c) Assault i) Elements 1. D intentionally causes 2.