LITTLE IVIES

TORTS OUTLINE EISENSTAT

TORTS OUTLINE- 1st Semester
Professor Eisenstat
I Intentional Torts
*For intentional torts, beware of an idiosyncratic P. Courts only allow for a reasonable person.

A. The Concept of Intent

Two Definitions
1. Purpose: the actor desires the consequences of his act (subjective)
2. Knowledge: the actor has knowledge to a substantial certainty that the consequence of his act will occur (objective)
· Substantially certain- the event almost has to occur as a matter of physics.
· Always ask “what would a reasonable person know or should know being in the shoes of the actor?”
· Need not be malicious or hostile intent
· Knowledge or belief of the actor is not based on his subjective state of mind but rather on the objective reasonable person standard.
· Acts of children are considered intentional only to the extent that they are capable of knowledge of the consequences

For one to be guilty of an intentional tort
· Actor must knowingly or desire something to happen
· Actor must be nearly certain his actions will cause result
· What was D’s intent? What was the actualization of D’s action to P?

1. A has a rifle, aims rifle at B, pulls trigger, bullet hits B
2. A has rifle, aims at a crowd, pulls trigger, bullet hits B
3. A has rife, taking target practice in his back yard, just behind A’s property line in his line of fire is a public beach, A pulls trigger, bullet hits B while he was on beach.
4. A owns rifle, takes target practice in middle of desert, unknown to A an airplane has recently crashed in area and B survived, A misses his target and hits B as he walks away from plane crash.

The act in all the hypos was that A fired the rifle. He intended to pull the trigger in all cases. There was no intent to hit B in cases 3 or 4. For A to be liable he had to intend to hit B with bullet. In #1 and #2 A had the requisite intent to hit B. In #3 and #4, no intent. #3: Three was no substantial certainty, not A’s desire to hit B, possibility B would be hit goes to negligence (therefore not intentional tort). For there to be an intentional tort it must be shown that A wanted to hit B and he knew with substantial certainty that he would.

Intentional torts are more likely to have punitive damages attached because the defendant is more blameworthy and we think he should be punished. Punitive damages: aim to punish the defendant. Compensatory damages: intended to make the plaintiff whole.

Cases/ Illustrations
Illustration: Driver hits pedestrian intentionally, pedestrian rushed to hospital and Dr. performs surgery on his leg and does a bad job. Leg has to be amputated. Who is liable to the pedestrian? In general the law will trace the consequences of the intentional tortfeasor’s acts much further than the negligent tortfeasor.

Garratt v. Dailey: P sued D for battery, claiming he pulled the chair out from behind her while she sat down with the intent of causing harm. Court found D did not have intent but may have known with substantial certainty that his act would cause harm. Notes from case: If it was apparent that D moved the chair with the knowledge of what would happen when P tried to sit, there would be a basis for recovery.

Spivey v. Battaglia: P sued D for negligence, assault, and battery because when D hugged P she experienced severe pain and was paralyzed. Court ruled that there was no assault or battery because D could not foresee that P would be so harmed. D did not desire the effects to occur. Court bars people from suing for damages that arise from bizarre results.

B. Perspectives on Intent- Transferred Intent and Mistake

Mistake
· A good faith mistake is not a defense to an intentional tort. However, under certain circumstances it may justify assertion of a privilege.
· As long as an actor desires the consequences of the act it will not be a defense that he was mistaken in his belief.
· Accident: The effect or consequences are not intended, not so probable or likely to make the conduct negligent.

Cases/ Illustrations
Ranson v. Kitner: D was hunting in woods for wolves, he shot and killed P’s dog believing it was a wolf. D was held liable for the value of the dog, even though he was acting in good faith.

Illustration: C hunting for specific wolf because wolf has been attacking livestock on his farm. While hunting C saw an animal lurking next to him, thought his life was in danger, shot and killed animal believing it was the wolf. Turns out the animal was the dog. Under Ranson v. Kitner, C is not liable because he was acting in self-defense and he made a reasonable mistake.

Illustration: C walking in street with rifle, he trips on thing in the street, falls down. Rifle discharges, hits dog. Is this an intentional tort? No, the result was not foreseeable. Is it negligent? Probably not, it was probably an accident.

Illustration: A goes into his backyard and cuts down trees for firewood (big backyard). A didn’t realize it but he crossed onto his neighbor’s yard and cut down his tree too. A is guilty of an intentional tort because he intended to cut something down, he was just mistaken as to whose tree it was.

Transferred Intent
Person to person, intentional tort to intentional tort
· Generally, if a person acts with the intent to cause a tort to another person that person can be held liable for another unintended tort to that person or to an unexpected 3rd person.
· Person to person: Can transfer person to person. A aims to hit B but misses and hits C. A’s intent was transferred from B to C. If there is tortious intent toward one party and you end up harming another party, there is liability.
· Intent to intent: Can transfer from intentional tort to intentional tort. If in intending to commit any one of the 5 intentional torts (battery, assault, false imprisonment, trespass to land, trespass to chattels) D accidentally accomplishes a different tort, he is liable for the tort he committed.
· Need intent to transfer. Only intentional torts transfer, cannot transfer negligence.
· Transferred intent does not apply to IIED.

Cases/ Illustrations
Illustration: A shot at dog (dog is target) bullet hits person instead. Is this a mistake or transferred intent? Transferred intent, A meant to hit something.

McGuire v. Almy: D insane woman, P was her nurse. D was having a violent fit and warned P not to enter the room or she would kill her. P entered room to prevent D from harming herself. D hit P over the head with a chair. D liable because she knew what she was doing. Rule: Where an insane person by his act does intentional damage to the person or property of another, he is liable for that damage in the same circumstances in which a normal person would be liable.

Talmage v. Smith: D threw a stick at a boy to get him off his property. Stick missed target and hit P in the eye and blinded him. D liable to P through doctrine of transferred intent. This case is different from Ranson v. Kitner because here D missed his target and did not hit what he wanted to hit.

Illustration:: A intends to batter B. He misses and batters C instead. A is liable to C for battery.

Illustration: A intends to assault B. He errors and actually batters B. A is liable to B for battery.

C. Battery
Intent to batter- voluntary act, substantially certain it will happen
Actualization of battery
Battery = harmful or offensive contact
Generally: a battery is the intentional, (unprivileged), harmful or offensive bodily contact. It is a tort that protects the body. For there to be a battery there has to be both intent and actualization.

R§13: Battery: Harmful Contact
An actor is subject to liable to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and
(b) a harmful contact with the person of the other directly or indirectly results.

- Two separate elements must be met. Intent (13(a)) and actualization (13(b)). Both parts must be present for the tort of battery.

R§18 Battery: Offensive Contact
(1) An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such contact, and
(b) an offensive contact with the person of the other directly or indirectly results.
(2) An act which is not done with the intention stated in subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

4 Elements of Battery
· Voluntary Act- must be an external manifestation of will (voluntary)

· Intent- There must be intent of contact. Person must desire to batter or be substantially certain that his action will result in a harmful or offensive touching.

· Harmful or Offensive Contact- There must be actualization of contact. Contact must be harmful or offensive contact, not just conduct. Not conduct, contact. The “its my body and I have control over by body” argument comes into play. There need not be physical harm. There must be physical contact but P can suffer only emotional harm as a result of the contact because a person’s dignity is essence of the tort.
Harmful- touching that inflicts any pain or injury
Offensive- touching that would offend a reasonable person’s sense of dignity.

· Causation- Contact must be caused by an affirmative act of the D (direct or indirect); a physical intrusion, not just an affront to dignity.

· Actor’s Intent: 1) Intent to cause harmful or offensive contact
2) Intent to put the person in imminent apprehension of contact
· Actor’s Actualization: Actual physical touching
· Must be direct or indirect contact. Direct contact is fist to face. Indirect contact is touching a person with a bat or grabbing their hat.
· D will be liable for aggravating an unknown injury through a battery.
· P need not be aware of a battery at the time it occurs.
· D will generally not be liable for unavoidable touching because of implied consent
· Battery is based on an objective standard to protect against hypersensitive or idiosyncratic Ps.
· Distinguish intent from motive- an actor can commit an intentional tort even though his motives are to help.
· Dignitary tort, it protects the well being of apprehensive or afraid of your body being contacted.
· You can have an assault without a battery, just as you can have a battery without an assault.

Cases/ Illustrations
· Illustration: A throws rock at B. Rock misses B and he did not know A tried to hit him. No battery because there was no actualization.

· Illustration: A is throwing rocks at bottles in his backyard but misses and hits B with the rock. No battery because there was no intent.

· Illustration: D kisses P while she is asleep. D has committed a battery even though P didn’t know it at the time.

· Illustration: At a baseball game, hecklers yelled at pitcher and pitcher threw ball at hecklers knowing there was a net between him and the hecklers. Pitcher threw the ball intending it to his the net, to his surprise the ball went through the net and hit the spectator. Pitcher acted to place hecklers in imminent apprehension of harmful or offensive contact (R13a) and his intention was to place the hecklers in imminent apprehension of offensive contact (R13b). Therefore there was a battery. Harmful: any physical impairment of another’s body. All that is required is contact, the extent of the harmfulness determine damages.

· See Glannon’s book for example about tripping someone with a wire or stuff about touching someone’s hat.

· Illustration: A is suffering from emotional distress and gets very upset if he is touched. B is walking down the street and accidentally bumps into A, causing offensive and harmful contact in A’s mind. Is B liable for a battery? No, because a normal, reasonable person would not be upset by the contact.

· Illustration: A is suffering from emotional distress and gets very upset if he is touched. B knows about A’s problem and he pokes him anyway. Is B liable for battery? Most jurisdictions will not find B liable.

· Fisher v. Carrousel Motor Hotel: P at a professional lunch when agent of D grabbed his plate and loudly said that a “Negro could not be served in the club.” D was liable for battery because the grabbing of the plate was an offensive invasion of P’s person (R18) and personal dignity is the essence of the tort of battery. “Unpermitted and intentional contact with anything so connected with the body as to be customarily regarded as part of the other’s person and therefore as partaking of its inviolability is actionable as an offensive contact with his person.”

· Illustration: A kicked B who had a bad knee. As a result of the kick B’s bad knee got worse. A is liable for aggravating B’s injury.

· Illustration: Doctor performs surgery on A that she did not consent to while she is knocked out. The Doctor is liable for battery even though A was not aware of it at the time it occurred.

· Illustration: A and B are on the Green Line. They are pushed up against eachother and because of the cramped conditions A somehow touches B and harms him. A will probably not be liable for battery because B impliedtly consented to A touching him due to the inherit nature of the Green Line.

D. Assault
P’s Intention is to make someone believe there will be a harmful or offensive contact, although no intention of actualization/
D must believe P intends to do what they threaten. P must have a well-founded apprehension of an imminent battery
· Assault- the intentional causing of an apprehension of harmful or offensive contact, though there was no actualization. Assault protects the emotion, the emotional state of mind.

· An assault is an unlawful attempt to commit a battery, but the battery is not completed because if some intervening event or cause. “To constitute an actionable assault there must be an intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt, if not prevented.”

· Act requirement: Must be a physical act or motion. Mere words do not constitute an assault.
· Intention to put the person in apprehension of a battery. D has the requisite intent for assault if D either intends to commit an assault or intends to commit a battery.
· Imminent apprehension of harm experienced by the victim. Victim must know of harm, she must be aware of it.
· Causal relationship between intent and apprehension.

· Actualization of apprehension on the part of P. Imminence of apprehension can be for a moment but it must exist. D’s act must cause P to he apprehensive
· It is not necessary that D bear malice toward P or intend to harm her. No hostility required.
· P may use reasonable force to defend oneself it placed in apprehension
· Apparent present opportunity to commit battery is seen as the standard of imminence
· If P has sufficient time to avoid the battery or get help he will generally be required to do so

Distinctions
Apprehension, not fear
· It is enough to know that a battery will or might occur, not that the victim is actually scared. Ex: A is a puny guy who is 5’ 2”, B is a huge guy who is 6’8”. A takes a swing at B and misses. This is an assault because B knows or expects a battery. It doesn’t matter if B was not scared of A.

Imminence
· Very strictly applied by the courts
· Does not necessarily mean immediate, but without significant delay
· Policy is if the intended victim has time or a way to escape the situation, he should do so

Mere Words Doctrine
· Theory that words alone do will not usually constitute an assault.
· Words coupled with conduct may constitute an assault. Must look at surrounding circumstances.
· If the parties have past relationships or experience words may be an assault.
· Look at the reasonableness of the words.

Cases and Illustration
I de S et ux. v. W de S: P sued D for assault because when P stuck her head out of a window and told D to stop beating on her door with a hatchet, D swung the hatchet at P but he did not hit her. D was liable for assault because he put her in imminent apprehension of physical harm when he swung the hatchet at her.

Western Union Telegraph Co. v. Hill: P sued for assault because an employee of D when P asked D to fix her clock. There was no assault because D could not reach across the counter, meaning he would have had to run around the counter to capture P and then there could be no imminence of danger. There must be imminence for there to be danger. What if: D could show that he could not possibly reached P from behind the counter. Could P sue for assault? Yes, because the question is whether she would reasonably feel an imminent apprehension of a battery.

Illustration: Glannon gives an example of someone waiving an atomic pen. Is it reasonable to think there is such a thing as an atomic pen?

E. False Imprisonment
D’s intent is to confine a person against their will
Actualization- P is confined and knows it, can’t escape, is harmed in some way
False Imprisonment is the intentional infliction of confinement. Intent to keep a person confined within the boundaries of an area and the person is within those boundaries and is aware of the confinement.

· Intent. Imprisonment must be the intent of the tortfeasor.
· Actualization. The person must actually have been imprisoned physically or merely by words which he fears to disregard. The idea is that P is held within certain limits, not that she is prevented from entering certain places.
· Consciousness. The person must know he is imprisoned.
· Harm. According to the restatement and the rule in most jurisdictions, the person must be harmed by the confinement even if you are unaware of being confined.
· Escape. If there are reasonable means for escape there is no imprisonment.
· Dignitary tort. You can recover for harms to emotional well being, and for the physical harms that result from the emotional harms.
· Most jurisdictions grant a store-owner the privilege to restrain a person if they have a reasonable suspicion that the person has shoplifted. Jurisdictions vary in the level of force that can be used (it must be reasonable) and the store owner can only restrain for a reasonable length of time.

Hypotheticals/ illustrations
Illustration. As a result of being intentionally falsely imprisoned by A, B missed an appointment where he was to sign a $1M deal and because A were falsely imprisoned he missed the deal and it was no longer open to A. Can A recover? A can recover from B for $1M.

Illustration: P is locked in her hotel room by D, but P is asleep for the entire 3 hour period and learns only later that the door was locked. P was not falsely imprisoned because she didn’t know it was happening at the time.

Illustration Say you were on a boat and the driver was going to let you off the boat in NY, and then the driver told you he wasn’t stopping until FL and kept you on board. You were falsely imprisoned from NY to FL.

Illustration You are on an airplane and the airline is delayed by 3 hours. You sue. Even if you want to get off the plane because you are being held there against your will, the airline does not have to allow you. When you surrender to a common carrier and agree to abide by the rules and regulations of the company, you give up the right to sue for false imprisonment. There is a level where that reasoning runs thin, and there is a point where you are falsely imprisoned on that airplane.

Illustration What if as you leave the room the Professor grabs your back pack and says you stay or I keep this, is that false imprisonment? So long as it is something of value that someone uses to keep you in the room, most jurisdictions would call this false imprisonment.

Illustration What about instead of grabbing your book bag, the professor says that if you leave the room he will report to the dean his suspicion that you have been cheating. Is that false imprisonment? No, see the Hardy case. Staying to clear your name is not false imprisonment.

Parvi v. City of Kingston, P was drunk and rather than arrest him for public drunkenness, D (the police) put him in the squad car, drove him out of town, and dropped him on a golf course 350 feet from the thruway. P wandered on to the thruway and was struck by a car. At trial, P had no recollection of his confinement. D was liable for false imprisonment because it was apparent that at the time P was put in the car and during the ride that he knew what was happening and he objected. But for D’s actions, P would not have been on the thruway. “False imprisonment, as a dignitary tort, is not suffered unless its victim knows of the dignitary invasion.” Also, the person must be harmed by the imprisonment.

Hardy v. LaBelle’s Distributing Co, P stayed at work to explain to employer that she did not steal a watch. It is not false imprisonment if an individual is confined with the knowledge that they may leave at any time, if the purpose of staying is to defend one’s character.

F. Intentional Infliction of Emotional Distress (IIED)
Intent is to cause severe emotional distress
Act must be extreme and outrageous, intentional or reckless
P must be inflicted with emotional distress, can have physical manifestations although not necessary
IIED is the intentional or reckless infliction, by extreme and outrageous conduct, of severe and emotional or mental distress, even in the absence of physical harm.

R §46 IIED, recognizes a cause of action for the intentional infliction of severe emotional distress, and to allow recovery (a) for such emotional infliction of severe emotional distress, and (b) for bodily harm resulting from it.

§ 46 Outrageous Conduct Causing Severe Emotional Distress(1) One who by extreme and outrageous conduct intentionally or recklessly 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. (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.

· Act. There must be extreme and outrageous conduct (ex: noose was not tortious, panties were). Don’t confuse the end result with the reprehensibleness of the act.
· Intent. Either must be intentional or reckless. Do not need to prove that the person intended to cause emotional distress, they could just be reckless. Reckless behavior is sufficient.
· Harm. There must be severe emotional distress, not just emotional distress.
· Cause of Action. A person has right to be free from negligent interference with physical well being.
· Extreme and Outrageous. P must show that D’s conduct was extreme and outrageous, beyond all possible bounds of decency.
· Free speech. One of the major aspects of this tort is the regulation of free speech, and if there is a conflict between the constitution and inflammatory speech, the constitution wins.

Four elements must coalesce to impose liability for IIED:
(1) The conduct must be intentional or reckless;
(2) The conduct must be extreme and outrageous;
(3) There must be a causal connection between the wrongful conduct and the emotional distress;
(4) The emotional distress must be severe.

No transferred intent.
Bystander recovery usually limited to family members only

3 ways to make a case that they had suffered emotional distress or harm
1) Physical injury with resulting emotional harm.
2) Emotional harms where there is a resulting physical harm.
3) Courts are hesitant to award a verdict for emotional harms with no physical symptoms because they have no proof on which to base their claims.

Hypotheticals/ illustrations
Illustration If D intentionally subjected P to such distress that bodily harm resulted, D is liable for negligently causing P’s bodily harm.

State Rubbish Collection Ass’n v. Silizonff: D threatened to beat P up and damage his truck. P threw up, was emotionally disturbed, and missed work. P has a basis for recovery because D intentionally caused severe emotional distress resulting in bodily harm.

Slocum v. Food Fair Stores of Fl: P was customer in D’s store and clerk told her “you stink to me”. D was not liable of IIED because the act was not done with the purpose of causing the distress or with knowledge that severe emotional distress was substantially certain to be the product of such conduct. There is liability only for conduct exceeding all bounds which could be tolerated by society, or a nature especially calculated to cause mental damage of a very serious kind. D saying “you stink to me” doesn’t cut it.

Harris v. Jones: P suffered from a speech impediment (stutter), D knew of P’s affliction and would verbally and physically mimic P’s stutter. However, P had a history of a stutter, and at trial was unable to show that his condition had worsened to be qualified as severely disabling emotional response to D’s conduct. Therefore, the fourth required element to prove IIED was missing and D was not liable.

Illustration A shoots B, B’s son sees the incident. Can B’s son sue A for IIED? If it was foreseeable that A knew B’s son was present, and would see the shooting, and the behavior is considered extreme and outrageous, A is liable. A must have intended for B’s son to see the incident.

Doctrine of Transferred Intent Applied to IIED
· Doctrine of transferred intent does not apply to IIED. However, courts sometimes allow for bystander recovery.
· Courts limit bystander or 3rd party recovery because the courts do not want a large group of people seeking recovery for this tort. To limit claims of IIED, courts apply these principles
· Most courts require that the 3rd party be present
· Most courts limit recovery to family members who are bystanders
· Many courts require that bystanders suffer an injury as a result of the IIED

Cases/ Illustrations
Illustration A man who is estranged from his wife enters her home where the wife, his children, and their babysitter are. The man shoots his wife in the presence of the children and babysitter.
How do you prove a cause of action for the children and the babysitter?
The actor’s actions had to be extreme and outrageous. The man’s act of shooting his wife knowing the children were present was extreme.
The man had to intend that the children and the babysitter see the shooting. If the father knew the children were in the room with the mother, there is intent. If the father did not know the children were home, he was reckless. Even if the children did not exhibit any physical symptoms of emotional distress, they could recover for emotional distress because they were young children and it is reasonable that they would be upset by the incident. Additional elements required to recover for IIED for bystanders are that the bystanders are family members, the bystander must be present and actually witness the incident.

To prove IIED for the babysitter you must prove that the man shot his wife with the knowledge that she would see it. The age of the nanny important, it would be more reprehensible if the nanny were 15 rather than 45. The emotional distress must result in bodily harm. Note, most jurisdictions do not require the emotional distress to be visible on an x-ray. They will accept normal manifestations of stress.

II. Privileges/ Defenses to Intentional Torts
A. Consent
· Consent by P to an intentional act by D which would otherwise give rise to tort liability will bar action based on such an act.
· To one who is willing, no harm is done.
· For P to win he has the burden to prove consent was not given.
· Express consent- words or conduct show that permission is given. Ex. 2 people fighting may consent to hitting eachother with fists but not brass knuckles
· Implied consent- objective manifestation. P acts in a way which a reasonable person would understand that consent has been given. Circumstances are such to create the privilege without liability. Ex. A doctor rendering emergency care, getting on the Green Line. For implied consent it must only be proven that D believed consent was given. This is not the same as what P thought, it is that D reasonably believed consent had been given.
· Silence may or may not be consent; based on circumstances and reasonable person standard.
· Consent given in duress or threat of physical injury is generally ineffective.

Medical Consent
· Emergency: Ability to give consent may be questioned in medical situations. Medical care providers may act in the absence of express consent if 1) the patient is unable to give consent (unconscious, intoxicated, mentally ill, incompetent); 2) there is a risk of serious bodily harm if treatment is delayed; 3) a reasonable person would consent to treatment under the circumstances; and 4) this patient would consent to treatment under the circumstances.
· Non-emergency: Doctor is required to seek consent of patient or immediate family. Modern trend is that doctors have patients sign consent forms.

Cases/ Illustrations
Illustration: A goes to the carnival and goes on the tilt-a-whirl ride. While on ride A is scared he will fall out and crash into the ground and nearly suffers a heart attack as a result. A has no basis for recovery because he consented to going on the ride.

Illustration: When you get on the subway it is implied that you have consented to annoying, smelly people rubbing up against you and possibly causing harmful or offensive contact.

O’Brien v. Cunard: P received a small pox vaccination by D (a doctor). P waited in line with others for the vaccine, understood she was waiting to be vaccinated, saw women in front of her show their arms to the doctor. She saw that D was checking for a previous vaccination scar and that those without the scar were vaccinated. She told D she had been vaccinated but had no scar, he said she needed vaccination because no scar, P extended her arm and received shot. P sued for assault, but there was no assault because based on her conduct D believed consent had been given.

Hackbart v. Cincinnati Bengals: During professional football game, D hit P out of anger and frustration but without an intent to injure. D and P were from opposing teams. However, consent is given to this sort of tortious contact when it is “part of the game”.

Mohr v. Williams: P sued for battery after D (doctor) operated on a body part that she did not consent to be changed. While performing an operation on P’s ear that she consented to, found that ear was fine but there was a problem in the other ear. D performed surgery on the other ear. Court held that any unwanted touching (non-consensual) is a battery, even if the touching is beneficial. The operation was performed without P’s consent and the circumstances were not such to justify performance without consent, therefore it was wrongful and unlawful.

Affirmative Defenses for Lack of Consent
Even if P proves her prima facie case beyond a preponderance of the evidence, D can assert an affirmative defense. Privileges take two forms (usually): 1) immunity- reserved for government officials, judges, used to be between married couples, and 2) if the perpetrator can prove that they are allowed to do what they did to the other person. If the perpetrator can show they had a privilege they are immune to tort claims.

B. Defense of Self and Others
Self Defense
· A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact and any threatened confinement or imprisonment. One may be privileged to use force in self-defense if such force appears to be reasonably necessary for the protection of the actor.
· Victim must be placed in imminent apprehension of a battery or be falsely imprisoned.
· Victim may use only level of force necessary for protection.
· The motive and intent of the victim in using self defense is incredibly relevant because must show why that level of force was necessary.

· Existence of Privilege: Anyone is privileged to use reasonable force to defend against a threatened battery.

· Retaliation: If the battery is no longer threatened, the privilege of self-defense terminates and the original victim becomes liable for battery. Privilege is only extended when defending against threatened battery. Even if a person was originally the aggressor, once he retreats he has a right to self-defense against the person he originally threatened.

· Reasonable Belief: Privilege to self-defense exists where person reasonably believes force is necessary to protect against a battery- even if there is in fact no threat. Ex: Case where P had reputation for shooting people, during argument P reached into his pocket, D reasonably believed P was going for his gun and shot him. Ex: D heard the guy he ejected from the dance was outside “getting some bricks” and stood by doorway. He reasonably believed that P was the bad guy as he approached the door and D was justified in pushing P.

· Provocation: Insults or verbal threats alone are insufficient to justify self-defense. However, if insults are accompanied by an actual threat of physical violence reasonably warranting an apprehension of physical harm, one may defend. Further, when accompanied by an overt hostile act, oral abuse may amount to a challenge to fight and constitute consent.

· Amount of Force: Amount of force used in self-defense must be reasonable and differences in size, age, and relative strength must be considered. To justify defense with a deadly weapon, defendant must have a reasonable apprehension of loss of life or great bodily injury.

· Retreat: Authorities differ in opinions about retreat. Some believe D must retreat if he can do so without increased danger, others believe he should be able to stand his ground. Common-law rule is that, rather than kill assailant or seriously wound him, D must “retreat to the wall”. However, people are not required to retreat in their own homes. People defending against guns, according to the restatement, are afforded every reasonable allowance to use deadly force in defense because of the predicament the assailant places them in.

· Injury to Third Party: Theory of “transferred intent” applies.

Cases/ Illustrations
Illustration: A and B are students and they don’t like eachother. At school B got A in trouble with the Principal. A sees B walking home and A decides to cross the street and beat B up. A and B happen to be standing in front of a police station, B has the option of walking into the police station for protection but he stands his ground. A strikes B, B hits back and flattens him. B was justified in hitting A because A did not have a right to place B in imminent apprehension of harm.

Illustration: Case where P had reputation for shooting people, during argument P reached into his pocket, D reasonably believed P was going for his gun and shot him.

Illustration: D heard the guy he ejected from the dance was outside “getting some bricks” and stood by doorway. He reasonably believed that P was the bad guy as he approached the door and D was justified in pushing P.

Illustration: D is being attacked by a tiny guy with a knife. D shoots and kills the tiny guy in self-defense. However, D is a kung-fu master with the skill to disarm the tiny guy while placing himself in little or no danger. D’s use of force was unreasonable.

Defense of Others
· A person may generally use reasonable force to defend another person against attack. The same rules apply as in self-defense: the defender may only use reasonable force, and may not use deadly force to repel a non-deadly attack.
· Courts are split on the effect of a reasonable mistake. Older courts hold that the intervenor steps into the shoes of the person aided, and this bears the risk of a mistake. The restatement gives a reasonable mistake defense to the intervenor.

· Nature of Privilege: One may use reasonable force in defending others.

· Reasonable Mistake: Some courts hold that if the intervenor steps into the shoes of the defending, he is privileged only when that person would be privileged. If the intervenor is mistaken in his belief that defense was necessary, he is justified as long as his decision is reasonable.

C. Defense of Property
· A person may generally use reasonable force to defend her property, both land and chattels.

· A reasonable mistake as to the existence of a privilege to protect property does not protect D. People act at their own risk in defending property and are liable if the invader is on the land as a matter of right.

· You cannot make a mistake in preventing someone from damaging your property, but you can prevent someone from entering your property if you believe that if by allowing that person to enter your property you are placing yourself in danger.

· You can never use force sufficient to kill or severely harm someone for the purpose of defending property alone.

· Cannot use lethal force to defend property except in certain jurisdictions.

· The privilege to defend property is limited to the use of force reasonably necessary to the situation as it appears to the property owner and is a question for the jury. Recognized limitations include that the owner must request the invader leave so long as the invasion is peaceful and owner is present. A request need not be made if the conduct indicates to the reasonable person that the intruder would not leave or that it could not safely be made in time.

· If an invader threatens the personal safety of the defendant or his family, defendant may use deadly force if necessary- especially if intruder attempts to enter the home at night. There is also a privilege to use reasonable force to prevent commission of a crime, and the force allowed is related to the seriousness of the crime. The general rule prohibiting deadly force is modified in come states if clear notice of danger is given.

· The limitations of the property owner’s privilege may restrict his power to eject the intruder from his property into a position of unreasonable physical danger.

· If the person’s presence endangers the personal safety of those on the premises, the privilege of self-defense or the defense of a 3rd party, permits the ejection of that person.

Cases/ Illustrations
Hypothetical: A and B are roommates. At Christmas break both go home. A comes back early, goes upstairs and goes to bed. There have been many burglaries in the neighborhood. B also comes back early, it is late at night, and he forgot his keys. B breaks a window and climbs in and begins picking up the glass. B sees no signs of A being in the house. A hears the glass break, goes downstairs with a gun, sees B (not knowing it is B) with something shiny in his hand and shoots him. B was privileged to be there, and A cannot use lethal force to defend his property. However, given the totality of the circumstances, A may have acted reasonably.

Illustration: A person stealing a ride on a RR train cannot be throw off at 30 mph. That exceeds the property owner’s privilege to eject the trespasser.

Katkp v. Briney: Spring-gun case. D owned a boarded-up farmhouse where nobody lived. People broke into it often and D set up a spring-gun to fire at anyone who opened the door. D intended for the gun to shoot a trespasser in the foot. P broke into D’s farmhouse and was shot in the foot. Court held that an owner is not allowed to set a spring-gun or create any other means that endangers life, to protect his property. The only time when it is permissible to shoot a trespasser is where the trespasser is endangering human life by his act or committing a violent felony.

Hypothetical: A chases B with a knife. B runs away and climbs over C’s fence into C’s yard. Can C sue B for trespass? No, because B trespassed for self-defense. B asserted a privilege against C (an innocent 3rd party, not a wrongdoer). C had a duty to allow B onto his property, but if A also climbed over the fence and continued his attack on B, C does not have a duty to protect B from A.

D. Necessity
· Under the defense of necessity D has a privilege to harm the property interest of P where this is necessary in order to prevent great harm to 3rd persons or to D herself.

· Public Necessity- the rights of a property owner are superseded by the necessity of preventing harm to the population. Provided a person is acting in the face of imminent danger and there is a real public necessity he is privileged. Under common law, the property owner is not (usually) entitled to compensation.

· Public v. Private privileges: If a private party is asserting the privilege he may have to pay the property owner for damages to the property.

· The privilege of necessity almost always refers to the property interests of another. Very few if any caselaw addresses the issue of using the necessity doctrine when defending actions that kill, injures, or otherwise harms another person.

Cases/Illustrations
Surocco v. Geary: D destroyed P’s house with purpose of preventing fire from spreading to a number of other homes. P sued D for not giving P sufficient time to remove his possessions from the house before D blew it up. Infer that P’s home would have been destroyed by fire had it not been blown up. D was privileged to blow up P’s house in the interest of public safety and preventing further destruction to other homes. D is required to be reasonable in his belief that the house had to be blown up at the time he blew it up. D must have seen necessity in his actions. (Ex of public necessity).

Hypothetical: There is a fire in town. A’s house will not be burned but if his house is destroyed the rest of the homes in the town will be saved. A’s house is destroyed and he has no basis for recovery because the house was destroyed in the interest of public good.

Vincent v. Lake Erie Transport: D owns a ship that he moors nightly at P’s dock. A storm comes that has enough veracity to carry away the ship and destroy it. P takes steps to secure the ship but in doing so incurs $500 in damages to his dock. D is required to pay P because the dock was destroyed as a private necessity.

III. Negligence

B. Assessing the “Unreasonableness of the Risk”
· Risk can be excused provided it is a reasonable risk. The restatement says that to determine whether D has created an unreasonable risk, look at the circumstances and ask- based on what D knew and should have known at the time, did he act reasonably?

· Criterion for determining if risk was reasonable or unreasonable:
1) Look at past experience to determine the chance of the event occurring (Blythe.
2) Creation of an unreasonable risk where result has grave results (Williams).

· What constitutes reasonable behavior is very subjective. The duty is to eliminate unreasonable harm to P, not to eliminate all risk.

· When determining if risk was reasonable:
1) % chance of thing happening
2) Gravity of result if thing happens
3) Court will not be overly intrusive in the private lives of individuals.
4) Balance between social utility v. risk of activity.
5) Middle road
Attractive nuisance doctrine.

Prima Facie Case for Negligence
1) Duty: A legal duty requiring D to conduct himself according to a certain standard, so as to avoid unreasonable risk to others.
2) Failure to conform: A failure by D to conform his conduct to this standard. (This element can be thought of as carelessness)
3) Proximate cause: A sufficiently close causal link between D’s act of negligence and the harm suffered by P. This is the proximate cause.
4) Actual damage: Actual damage suffered by P. Compared to intentional torts, such as trespass, where P can recover damage even without actual injury.

Just ask yourself: Would a reasonable person of ordinary prudence in D’s position do as D did?

§ 291 Unreasonableness; How Determined; Magnitude of Risk and Utility of Conduct 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.

§ 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) the social value which the law attaches to the interest which is to be advanced or protected by the conduct; (b) the extent of the chance that this interest will be advanced or protected by the particular course of conduct; (c) the extent of the chance that such interest can be adequately advanced or protected by another and less dangerous course of conduct.

§ 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 one of a class of which the other is 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.
Cases/ Illustrations:
Hypothetical: There is a mechanism that if installed on an airplane it prevents one crash every 50,000 takeoffs. If the plane crashes, the manufacturer will have a difficult time saying that he did not install the mechanism because the risk was so low. However, if the adding the mechanism will increase the price by $3,000 per ticket, society may feel differently.

Lubitz v. Wells: P sued D for negligently leaving a golf club in the yard that was used by D’s son to harm P’s daughter. The club was clearly dangerous if used in the way it was used, but the court did not hold that way because it is a slippery slope. The court will not be overly intrusive in the affairs of individuals.

Hypothetical: you’re walking gown the street and you hear a car speeding down the street. You see a 7 year old child crossing the street, the car driver will clearly hit the child. You jump out and push the child out of the way, and you are struck by the car. You want to sue the driver for negligence. Can you?- You had no duty to save the child. The court will allow recovery for reasons of social policy. As a society we want people to help others.

Illustration: 100% of Logan airport’s flights take-off and land over very populated areas of Boston. If there is a crash, the chances of harm are very high. For Logan to reduce the risk, Logan would only be able to have 2/3 the # of planes take-off and land. Is it worth the risk to the people.

Chicago RR v. Krayenbuhl: Krayenbuhl was P, RR was D. P’s child was severely injured when playing on RR turntable. RR aware that turntable was attractive to children to play on, they knew that the lock was often broken, and they knew children had easy access to turntable because there was a path next to it. RR liable because they knew turntable was an attractive nuisance and did not take pains to keep children out. Court reasoned that the burden of locking the turntable is proportional to the danger to be anticipated from leaving it undone. It would be unreasonable for a property owner to (for example) build a fence around a lake or inclose the lake with a fence because those steps are disproportional with the risk. But it is reasonable for the RR to use a lock to keep the children off the turntable and not doing so creates an unreasonable risk. (Attractive nuisance doctrine).

C. A Formula for Negligence
Judge Learned Hand’s cost-benefit analysis
P = the probability that the event will occur
L = the gravity of the resulting injury if the event does occur
B = the burden of adequate precautions
If B > PL, then you are justified in not taking adequate precautions
If B < PL, then you are negligent.

Cases/ Illustrations
US v. Carroll Towing: Situation where a barge broke loose during a storm and lost her cargo of flour. Judge Learned Hand suggests a cost-benefit analysis when determining if someone acted reasonably. Creation of Judge Learned Hand’s cost-benefit for deciding if someone acted negligently.

Hypothetical: A owns a shoe store. A is appalled by how salt on sidewalks ruins the shoes he sells. So, A decides to will lay down kitty litter on ice in front of store instead of salt. Kitty litter does not melt ice but provides traction (like salt). Pedestrian walks in front of store, sees kitty litter, thinks its salt, walks, slips, falls, sues. A’s defense is that he thinks the risk of not using kitty litter was warranted to prevent the shoes from being ruined. Applying Learned Hand’s cost-benefit analysis to the situation court must assign values to P, L and B to determine if A was negligent.

D. Applying the Reasonable Person Standard
Requirements to prove negligence
· Negligence does not impose any intent. The event occurred without intent.
· You must prove that D acted unreasonably.
· What a reasonable person does in one situation will not be reasonable in another situation. Negligence is fact specific.

Contributory Negligence: even if P was negligent he is not at fault if D was also acting negligently. This is different from compartory negligence.

Plaintiff Acting:
Defendant Acting:
Plaintiff’s Liability:
Reasonable
Reasonable
no
Reasonable
Unreasonable
no
Unreasonable
Reasonable
Most jurisdictions- yes
Unreasonable
Unreasonable
yes

Cases/ Illustrations
Brown v. Kendall: D was trying to break up a dog fight with a stick. D struck P in the eye with the stick as he prepared to strike the dogs. P was blinded. Jury instructed to allow D to use reasonable or ordinary care if D was carrying out a legal duty related to his employment. If D was not acting in accordance with his employment ten he had to demonstrate extraordinary care. Prior to this case negligence was not widely cited as the reason for an accident. Negligence was based on a very specific duty created based on the profession you were in.

Hypothetical: You are a lawyer and your client tells you: A friend of mine offered me a ride in his car. When I got into this car I was bitten by a poisonous snake. The snake got into the car because my friend left the windows open. We were in the Everglades. Can I sue him for negligence? Yes, because he left the windows open in the Everglades, allowing the snake to get into the car.

To prove negligence P must prove that D
· Had a duty. If there is no duty there can be no tort.
· That duty was breached. Breach of duty is fact specific.
· The breach of duty CAUSED the harm through “but for” or proximate causation
· P was harmed in some way. There must be a loss for the tort of negligence, must be able to show damages. Negligence in the air will not suffice.

Cases/ Illustrations
Illustration: Police officer chooses not to prevent a robbery because he is on his way to the movies. He had a duty to act.

Illustration: It snows, then rains, store owner does not remove the ice, pedestrian walks on sidewalk, falls and breaks his leg. Storeowner may have a duty to keep sidewalk clear of ice defined by statute. Not a duty in all jurisdictions. Breach of duty is fact specific.

Illustration: But for D’s failure to act reasonably and remove the snow/ ice from the sidewalk, P could have walked across the sidewalk without incident. But for causation.

1. Who is the Reasonable Person
· The reasonable person test does not mean what the average person does, it means what a reasonable person does. Average people drive 5-10 miles over the limit, they run yellow lights, they jaywalk. This is not reasonable- it is average.
· We impute a certain level of knowledge on people. People are responsible for information even if they don’t have that knowledge.

Cases/ Illustrations
Illustration: A is working on a scaffold, he is juggling tools in his hands and drops one. It hits someone in the head. A did not know what gravity is. A is responsible for knowing the information because we require people to have a level of knowledge that a reasonable person would have.

Delair v. McAdoo: D and P are driving their cars. D sought to pass P and as D drew alongside P, his tire blew out. D had 3 defenses. 1) D said his tire wasn’t bald, as P asserted. This is a question of credibility (left to the jury). 2) D said that even if his tire was bald he was not liable because he didn’t know it was bald. D had a duty to find out things that he should know, and the way D was to fulfil his duty is to inspect. Inspection is required because a reasonable person has the ability to inspect his tires. Were the problem in the engine, D may not have had a duty. 3) D didn’t know that a bald tire is dangerous. D has a duty to know that certain conditions are dangerous, D has a duty to know this information.

Hypothetical: A is a 16 year-old driver, just got his license. B pulls out in front of A, A doesn’t stop in time and rear-ends B. We cannot subjectify the level of reasonableness for policy reasons. We must hold people to the same standard of care. We don’t make allowances for new drivers. Usually the law does not make allowances for people with inferior abilities.

Hypothetical: A is a mechanic. He should know that the certain noise he hears from his engine means his engine will seize up. The engine does seize, there is an accident as a result. B is not a mechanic, he hears the same noise, engine seizes, accident results. Neither A nor B have their engines checked even though there is a noise. Should A be held to a different standard than B? The problem is that you begin to hold people to different standards. At times the court will look at what the reasonable expectation of care in a given situation. Courts are split on what level of care they require of people to comply with.

2. Emergency
· Did D act as a reasonable person would act in an emergency?
· People are held to what a reasonable person would do under the emergency circumstance.
· Man not required to exercise judgement normally required of him
· If emergency is created by the negligence of the actor, the emergency doctrine does not apply.
· It is not the conduct after the emergency has arisen that the law does not excuse, it is the negligent conduct that brought about the emergency.
· Actor must be suddenly faced with danger and have only moments to act (no time for deliberation).
· There are situations where one is required to anticipate an emergency and act to prevent it.

Cases/ Illustrations
Cordas v. Peerless Transport: D is a cab driver. A thief with a gun gets in his cab and threatens to shoot D in the head. D uses the emergency break to stop the car and jumps out before it completely stops. The car rolls ahead and hits P (minor injury). D was acting in an emergency situation. D is held as a reasonable person would under the emergency circumstances.

Hypothetical: A is adjusting his radio stations, looks up, sees a kid, breaks but hits him. A’s negligence created the emergency, therefore he cannot use the emergency doctrine.

Hypothetical: D driving past a school and child suddenly darts out of a driveway on a bicycle. D cannot use the emergency doctrine as a defense because he knew he was near a school, where there are children, and he had a duty to act to prevent an accident. (anticipate the emergency)

3. Persons With a Disability

Physical Disability
· Would a reasonable person with that physical disability act as D did?
· Disabilities listed in book: deafness, no sense of smell, short stature (not tall), epilepsy, age, paralysis
· Conduct must be reasonable in light of his knowledge of his disability.
· Disability treated as one (not all) of the circumstances under which he acts.
· Disabled person must take precautions, be they more or less, which the ordinary reasonable man would take if he were disabled. (The idea that he must use a greater degree of care has been rejected).
· Custom testimony is very important because it can show reasonable behavior. But, must show that custom itself is reasonable. Any time you are dealing with custom testimony you must show that the custom is reasonable.
· Intoxication- You are to act reasonably with the knowledge that people get drunk. Ex: obviously intoxicated person stumbles through a turnstile at subway station, stumbles to train tracks, he stumbles onto tracks, and he is hit by a train and killed. Court held that the train company had a duty to protect against foreseeable drunk people coming into the station. (“A drunken man is as much entitled to a safe street as a sober one, and much more in need of it.”)
· There is a duty of reasonableness on the part of a defendant to act reasonably toward people with a disability.

Cases/ Illustrations
Roberts v. State of LA: Agent of D was totally blind, operated concession stand. D left stand and walked without cane to bathroom, knocked into P and P fell over and broke his hip. D not negligent, even though he was 1) not using his cane, 2) he was familiar with area, 3) he was relying on other means to navigate, specifically, facial sense, 4) D had special mobility training and good mobility skills, 5) no evidence that D was acting negligent by walking fast or not paying attention. His conduct was reasonable.

Illustration: Obviously intoxicated person stumbles through a turnstile at subway station, stumbles to train tracks, he stumbles onto tracks, and he is hit by a train and killed. Train company had a duty to protect against foreseeable drunk people coming into the station.

Mental disabilities
· The reasonable person is not deemed to have the particular mental characteristics of D.
· Concerns of the Court
1) proof of disability
2) (Caretaker) holding people not liable due to a disability may allow people who care for disabled people to be lax, not to be so attentive to the disabled person they care for because they know the mentally ill person will not be held responsible
3) still need to make P whole
4) Poor P, rich D, P can no longer take care of himself, he should be and can be compensated by D.
· Factor #4 can be applied for both physical and mental disabilities. In either event, D can pay for P’s injuries. Factor #3 applies to physical and mental disabilities- P still needs to be made whole. Factor #2-caretakers would have to be more vigilant when knowing that their charge would be held liable if they were mentally ill or if they were physically disabled. Factor #1: proof is still a problem.
· Most courts hold that mental retardation or imbeciles are mental disabilities, not physical ones.

Cases/ Illustrations
Breunig v. American Family Ins: D was driving her car behind P when she suffered from an insane delusion and tried to drive her car into the back of P’s car. In most jurisdictions there can be no defense based on mental illness, it is not a circumstance that is taken into effect. However, this case is an exception because the court took into account that D knew she had a mental disability and was being treated for it, so she had some level of forewarning.

Hypothetical: A takes medication for her mental illness, her medication wore off while driving, she hallucinates and causes an accident. Most jurisdictions will not permit reduced liability for forewarning of mental illness (not the same as if the driver had a heart condition and his meds failed, he had a heart attack, and caused an accident).

Hypothetical: A is walking along, B comes along on a scooter (he is 10-years-old) and he hits A and hurts him. B’s youth will be taken into consideration, not just chronological age but his actual specific mental age of the 10-year-old. In most jurisdictions, this is the rule. Most courts do not feel it is fair to force a child to operate at the level of an adult, just as we do not expect someone with a physical disability to overcome that disability. BUT, we do expect a mentally ill person to act like someone without a mental illness.

I think that we do not allow people with mental illness to use their disability as a defense because of a stigma toward mental illness.

4. Age
· A child is held to the level of conduct of a reasonable person of that age and experience, not that of an adult.
· However, if the child engages in a potentially dangerous activity normally pursued only by adults, she will be held to the standard of care that a reasonable adult doing that activity would exercise.
· The reasonable child is held to what the individual is capable of provided the child is engaged in child activities.
· Some states have identified activities that are child activities and some that are adult activities.
· When a child engages in adult activities (depending on jurisdiction) they are held to be adults.
· Alsthimers and other old-age induced mental infirmities: If you want it to be considered an age factor- you argue that it is an age factor. If you want it to be considered a physical disability- you argue that it is a physical illness.

What about a 70 year old person: you can try to argue age because a person who is 70 has more experience than a 10 year old. However, if the fact that they are invoking an age issue, ask if it is because of a physical or mental disability.

Other stuff
Intoxication- intoxication is no defense. Even if D is drunk she is held to the standard of conduct of a reasonable sober person.

Anticipating the conduct of others- a reasonable person possesses at least limited ability to anticipate the conduct of others.

5. The Reasonable Professional
A) The Standard Care 166-70 174-82
· The standard of care required of an individual is the conduct of the reasonably prudent man under the same or similar circumstances. The standard of care of the reasonably prudent man remains constant, the quantity or degree of care required varies significantly with the attendant circumstances.
· The standard for a professional is:
· Formula: The reasonable person takes on the profession of the actor and an objective standard is applied.
· A specialist within a profession may be held to a standard of care greater than that required of the general practitioner. If a professional holds himself out to have higher skills than a general practitioner, he will be held to a higher standard.
· Problem of applying a subjective standard is that it permits a jury to consider the professional’s experience and training, whether outstanding or inferior, in determining the requisite standard of conduct, rather than applying a minimum standard generally applicable to all professionals in that field.
· Expert testimony: P must offer expert evidence on matters that are not common knowledge so a jury can make a determination as to negligence. Expert testimony is almost always required for medical malpractice cases.
· Professions subject to professional standard: attorneys, doctors, veterinarians, architects, engineers, accountants.
· The standard is not modified for professionals providing their services pro bono.
· Before a physician can be held liable for malpractice he must have done something in his treatment which the recognized standard of good medical practice forbids, or he must have neglected to do something which such standard

Cases/ Illustrations
Heath v. Swift Wings, Inc. Airplane owned by D and operated by co-D crashed, killing 3 people and pilot, due to pilot error. At trial expert testified that a reasonable pilot should have made a controlled landing in a nearby cornfield after realizing after takeoff that he was unable to achieve proper height and speed, and that had he done so P would not have died. Jury instruction: “negligence, with respect to aviation negligence could be more specifically defined as the failure to exercise that degree of ordinary care and caution, which an ordinary prudent pilot having the same training and experience as D, would have used in the same or similar circumstances.” This is an improper instruction as pilot should be held to an objective reasonable pilot standard, not a subjective standard of a pilot with the training D had.

Boyce v. Brown P sought treatment from D (doctor) for ankle fracture. D inserted screws in ankle, no contention that D did not do that properly. 7 years later P sought treatment from D for pain in her ankle. D taped ankle, fixed her arch support, no x-ray. P returned 2 years after that due to increased pain, D examined, no x-ray. Days later P sought treatment from 3rd party doctor who noticed physical symptoms and took x-ray. 3rd party doctor diagnosed the source of the pain as an eroded screw in her ankle.
Morrison v. MacNamara

B) Informed Consent 182-93
Scott v. Bradford
Moore v. The Regents of the University of California

C) Medical Malpractice and Health Insurance 193
The “Medical Malpractice Crisis” and Statutory Changes in the Common Law

This is a common Civ Pro Law Outline for University Law School classes at:AKRON ALABAMA ALBANY UNION AMERICAN APPALACHIAN *ARIZONA ARIZONA STATE ARKANSAS-FAYETTEVILLE ARKANSAS-LITTLE ROCK AVE MARIA SCHOOL OF LAW BALTIMORE BARRY UNIVERSITY *BAYLOR BOSTON COLLEGE BOSTON UNIVERSITY BRIGHAM YOUNG BROOKLYN CALIFORNIA - BERKELEY CALIFORNIA - DAVIS CALIFORNIA - HASTINGS CALIFORNIA - LOS ANGELES CALIFORNIA WESTERN CAMPBELL CAPITAL CASE WESTERN RESERVE CATHOLIC UNIVERSITY OF AMERICA CHAPMAN CHICAGO CINCINNATI CITY UNIVERSITY OF NEW YORK CLEVELAND STATE COLORADO COLUMBIA CONNECTICUT CORNELL CREIGHTON DAYTON DENVER DePAUL DETROIT MERCY DISTRICT OF COLUMBIA DRAKE DUKE DUQUESNE EMORY FLORIDA FLORIDA A&M*FLORIDA COASTAL FLORIDA INTERNATIONAL*FLORIDA STATE FORDHAM FRANKLIN PIERCE LAW CENTER GEORGE MASON GEORGETOWN GEORGE WASHINGTON GEORGIA GEORGIA STATE GOLDEN GATE +GONZAGA HAMLINE HARVARD HAWAII HOFSTRA HOUSTON HOWARD IDAHO ILLINOIS ILLINOIS INSTITUTE OF TECHNOLOGY INDIANA - BLOOMINGTON INDIANA - INDIANA POLIS INTER-AMERICAN IOWA THE JOHN MARSHALL JOHN MARSHALL (ATLANTA)*JUDGE ADVOCATE GENERAL'S SCHOOL KANSAS KENTUCKY LAVERNE*LIBERTY*LEWIS AND CLARK LOUISIANA STATE LOUISVILLE LOYOLA - CHICAGO LOYOLA MARYMOUNT - L.A. LOYOLA - NEW ORLEANS MAINE MARQUETTE MARYLAND MCGEORGE MEMPHIS MERCER MIAMI MICHIGAN STATE MICHIGAN, UNIVERSITY OF MINNESOTA MISSISSIPPI COLLEGE MISSISSIPPI, UNIVERSITY OF MISSOURI-COLUMBIA MISSOURI-KANSAS CITY MONTANA NEBRASKA NEVADA-Las Vegas NEW ENGLAND NEW MEXICO NEW YORK Law School NEW YORK UNIVERSITY NORTH CAROLINA NORTH CAROLINA CENTRAL NORTH DAKOTA NORTHEASTERN NORTHERN ILLINOIS NORTHERN KENTUCKY NORTHWESTERN NOTRE DAME NOVA SOUTHEASTERN OHIO NORTHERN OHIO STATE OKLAHOMA OKLAHOMA CITY OREGON PACE PENNSYLVANIA PENNSYLVANIA STATE PEPPERDINE PITTSBURGH PONTIFICAL CATHOLIC OF P. R.PUERTO RICO QUINNIPIAC REGENT RICHMOND ROGER WILLIAMS RUTGERS - CAMDEN RUTGERS - NEWARK ST. JOHN'S SAINT LOUIS ST. MARY'S ST. THOMAS (FLORIDA) ST. THOMAS (MINNESOTA) SAMFORD SAN DIEGO SAN FRANCISCO SANTA CLARA SEATTLE SETON HALL SOUTH CAROLINA SOUTH DAKOTA SOUTHERN UNIVERSITY SOUTHERN CALIFORNIA SOUTHERN ILLINOIS - CARBONDALE SOUTHERN METHODIST SOUTH TEXAS SOUTHWESTERN STANFORD STATE UNIVERSITY OF NEW YORK STETSON SUFFOLK SYRACUSE TEMPLE TENNESSEE TEXAS AT AUSTIN TEXAS SOUTHERN TEXAS TECH TEXAS WESLEYAN THOMAS JEFFERSON THOMAS M. COOLEY TOLEDO TOURO TULANE TULSA UTAH VALPARAISO VANDERBILT VERMONT VILLANOVA VIRGINIA WAKE FOREST WASHBURN WASHINGTON AND LEE WASHINGTON WASHINGTON UNIVERSITY WAYNE STATE WESTERN NEW ENGLAND WESTERN STATE*WEST VIRGINIA WHITTIER +WIDENER WILLAMETTE WILLIAM AND MARY WILLIAM MITCHELL WISCONSIN WYOMING YALE YESHIVA