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The Culpability Spectrum

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Jeannette Shroyer

on 5 December 2014

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Transcript of The Culpability Spectrum

The Culpability Spectrum
Innocent Conduct
(Strict Liability)

Negligence
Recklessness
Intentional Misconduct
Unintended Harm
Intended Harm
Responsibility based on whether the defendant's conduct caused an injury
Fault (either moral or social) is not an issue

Definition: Unreasonable conduct that creates foreseeable risks of harm
Unintentionally caused personal injury

5 Elements
1. Duty
2. Breach
3. Causation
(Cause-in-Fact)
4. Scope of Liability
(Proximate Cause)
5. Damages
Definition: A legal obligation to exercise some level of care to avoid the risk of harming persons or property
General Duty of Reasonable Care
Exceptions
Factors That Influence
Duty Determination
One has a duty to FORESEEABLE PLAINTIFFS
to exercise REASONABLE CARE
with regard to FORESEEABLE RISKS OF HARM
resulting from one's conduct
Modernly: Everyone HAS a duty (with exceptions)
Restatement (Third) of Torts, Section 7:
(a) An actor ordinarily has a duty to exercise reasonable care when actors conduct creates a risk of physical harm

(b) A court may decide that defendant has no duty or that the ordinary duty of reasonable care requires modification
Limited Duty Rules
Premises Defects
No Duty to Assist, Act or Rescue
Third-Party Harm
Public Policy Doctrine
Emotional Distress
From A.W. v. Lancaster County School Dist (elementary school invader)
Defendant has acted despite foreseeable risk of harm
to a likely victim, but the law has limited their duty
1. Allocation of Loss
Who would better bare the loss?
2. Fairness
Is there a wrongdoer?
3. Deterrence/Accident Avoidance
Is there a way to prevent the wrong doing?
4. Economic Considerations
Would prevention be cost effective?
5. Administrative Concerns
What is the cost to society?
6. Legislative Considerations
Should there be statutes or regualtions?
Are there existing statutes or regulations that would clash with the new statute or regulation?
Application of Duty Determination Factors
Weigh in Favor of Duty
Weigh Against Duty
Harm is foreseeable and/or avoidable

The Defendant is uniquely positioned to prevent the harm

Establishing duty would chill Defendant's future bad conduct
Duty is too difficult to enforce and/or prove

Duty is too burdensome on the actors

A more efficient/effective alternative exists
Premise Defects
(Premise Liability)
Trigger: Person is injured on someone's property
- Property does the injuring
Status
Tripartite
1. Invitee
General duty of reasonable care

Permission of landowner for mutual benefit
(often pecuniary)
EX: Customer at a retail shop
2. Licensee
Duty to warn of hazards that should be known

Permission of landowner for the visitors own benefit
(without benefit of the landowner)
EX: Social Guest at a party
3. Trespasser
Only responsible for willful, intentional or reckless acts

NO permission from landowner
EX: Stranger on private property
Roland
(Modern Standard)
Status is not determinative
Defendant must act reasonably in light of the facts that determine status
Exceptions
Frequent Trespassers
EX: Railroad track "shortcut"

Owner acts reckless or negligent to trespasser
EX: traps on property

Children
Attractive Nuisance Doctrine
Restatement 2d § 399
Defendant knows or has reason to know children will be on property
Defendant knows or has reason to know that the premises are dangerous
Children don't recognize risk due to youth
Utility of maintaining/burden of eliminating danger v. risk to children
Failure to exercise reasonable care

Landlords
Traditionally no liability except when:
Concealed dangerous conditions known to landlord
Dangerous conditions create risk to those outside premises
Leased for public admission
Dangerous conditions in common areas over which landlord retains control
Landlord breaches an agreement to repair
Duty to Assist, Act or Rescue
General Rule: No duty to assist, act or rescue unless there is MISFEASANCE
MISFEASANCE: Affirmative conduct created the risk of harm and placed Plaintiff in danger
Exceptions to the General Rule
Third-Party Harm
General Rule: No liability for wrongs of third-parties
Public Policy Doctrine
General Rule: A government actor performing improperly usually not liable to those harmed by misfeasance because duty owed is limited to the public at large - individual requires a special relationship
Emotional Distress
General Rule: Can recover for emotional distress in order to make Plaintiff whole, as as they are also subject to physical risk
Exceptions to the General Rule
Duty to take reasonable protective measures to control the actions of third parties over which the Defendant exercises control or authority
Triggered:
Special Relationship
Duty may extend where special relationship is only between Defendant and tortfeasor
Privity in a relationship
No privity, no duty
Third Party Negligence
Defendant may have been able to control the risk of harm and did not
Foreseeability of harm is most important
Definition: A failure to meet the
REASONABLE STANDARD OF CARE
Reasonable Standard of Care
1. Foreseeability:
A general duty exists not to place others in foreseeable risk of harm
2. Standard of Care:
The Standard of Care that the Defendant must exercise towards the Plaintiff is that of a reasonable, ordinary and prudent person in the same or similar circumstances
Reasonable Person Test
Q: What would a reasonable person have done under the same or similar circumstances?
- Objective Test

Does not consider specific abilities or state of mind

Does consider what is known, perceived or experienced
- The law assumes that a reasonable person:

Takes actual knowledge and observations in to account

Sees what is clearly visible and hears what is clearly audible Knows basic facts common to the community

When undertaking a particular activity has knowledge common to others who engage in that activity

Is reasonable, not perfect
Hand Formula
B < P x L
B = Burden or cost/benefit of feasible safer alternative
P = Probability of harm
L = Nature and seriousness of the harm
If probability and seriousness of the harm outweighs the burden of a safer alternative, the safer alternative should be implemented,
Alternate Outcomes of the Hand Formula
Burden is too large
Probability is too low
Seriousness is low
Custom
Social Custom
Statues and Regulations
Industry Custom
The common practice and habits of a community that may be used to determine reasonable behavior
The common practice and habits of an industry that may be used to determine reasonable behavior
Possible Exceptions:
Exceptions:
Professionals such as doctors, lawyers, accountants, etc.
Custom plays a much more prominent role in determining the standard of care for professionals
The degree of care, knowledge and skill ordinarily possessed and exercised in similar situations by average members of the profession practicing in the field
Custom conclusively establishes the standard of due care
Expert Testimony is usually required to establish custom
Medical Malpractice
Informed Consent
Relevant Rational Standard of Care
Physician must disclose material risks and alternatives to the patient concerning the medical treatment, procedure, or other professional conduct, and the patient must agree after learning this information
Two Viewpoints
1. Professional Standard:
The physician is required to disclose those risks which a reasonable medical practitioner of like training would disclose under the same or similar circumstances
2. Patient Standard:
The physician's disclosure duty is to be measured by the patient's need for information
Lack of Informed Consent:
1. Physician did not present the risks and benefits of the proposed treatment and of alternative treatments

2. With full information, the patient would have declined the treatment

3. The treatment, even if appropriate and carried out skillfully, was a substantial factor causing the patient's injuries
Characteristics of Proper Informed Consent:
Communicated in ordinary terms
Opportunity to decide
Physician should still offer recommendation based on expertise and judgment
Alternatives should include no treatment at all and corresponding consequences
A judge may combine the duty and breach elements by issuing a directed verdict
Negligence Per Se
An act is considered negligent because it violates a statute
EX: Safety Statute
Two Elements:
1. Class of persons protected
Was the Plaintiff a member of the class of persons the legislature sought to protect?
2. Type of harm protected against
Was the type of harm suffered a type the legislature sought to prevent?
Excuses
Incapacity
No knowledge or reason to know of statute
Inability after reasonable diligence to comply
Emergency
Compliance involves greater risks
Reasonableness under all the circumstances (minority)
- Not normally an exception
- Can be an exception, unless Defendant caused the emergency
- A physically disabled person is held to the standard of a reasonable person with a like disability

- The Defendant must reasonably take care of their disability
- May have to take greater care than a physically able person
- MAJORITY RULE:
NO relief from liability if accident occurs because the defendant has a sudden unanticipated mental illness

- MINORITY RULE:
Sudden mental incapacity equivalent to a physical illness and would protect the defendant from liability IF they have no prior knowledge of this incapacity OR if they take proper care
Gender
Sudden Emergency Doctrine
Physically Disabled
Mentally Disabled
General Rule: A child’s conduct is measured against the conduct expected of a child of similar age, intelligence and experience

Age-Based Presumptions:
Under 7: Incapable of negligence
7-14: Rebuttable presumption minor is incapable of negligence
14+: Rebuttable presumption that minor is capable of negligence

EXCEPTIONS to the General Rule:
- Children engaged in adult activities will be held to an adult standard of care
- Children engaged in inherently dangerous activity
Children
Utmost Care:

Specialized Skills:

Common Carriers:
Heightened Standards of Care
Evidence of Breach
1. Circumstantial Evidence
2. Res Ipsa Loquitur
Since A happened, the jury can infer B so long as:
Inference is reasonable
B is more likely than not
Uses circumstantial evidence to show that the event caused the injury and was more likely than not negligent
Allows an inference of negligence despite no knowing exactly what went wrong
Triggered when:
Obvious that Defendant must have been careless, but Plaintiff does not have direct evidence
Plaintiff only knows that event happened and that he/she was injured
Elements
1. Event does not normally occur but for negligence
Facts of the accident
Common knowledge
Common sense
Expert testimony

2. Object/instrumentality under the exclusive control of Defendant
Evidence of who managed/controlled
Need not disprove every other possible cause; just that it is more likely that Defendants negligence caused the injury
Two Ways Defendant can Defeat Res Ipsa Loquitur Claim:
1. One of the elements are not satisfied
Event does not normally occur but for negligence
Exclusive control of the Defendant
2. Despite the injury, Defendant exercised due care (precautions)
However, precautions can also show a clearer picture of carelessness
Definition: A causal connection between the Defendant's conduct (breach) and the Plaintiff's injury

Connects the BREACH to the INJURY
Empirical Determination
Necessary, but not sufficient
Tests
But-For Test
Single cause test

But for the Defendant’s conduct, would the Plaintiff’s injury have occurred?

Triggered when only one possible cause of injury exists

A
but-for cause, not
THE
but-for cause
Substantial Factor Test
Was the Defendant's conduct a substantial factor in causing the Plaintiff's injury?

Substantial Factor:
Increased likelihood that harm would occur
AND
That type of accident/harm did in fact occur

A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm
Must be more than a remote or trial factory
Does not have to be the only cause of the harm

Conduct is not a substantial factor in causing harm if the same harm would have occurred without the conduct

Triggered when the injury was clearly the result of multiple causes

Duplicative
2 parties are independently careless and simultaneously cause injury to which each contributed

Successive
Multiple parties are independently careless and cause injury one right after the other
Often occurs in multiple car accidents
Difficult to sort out the causal influences

Preemptive
NO causation if harm came before conduct
Pre-existing relationship which may support a duty when risk arises within the scope of that relationship
Examples:
Parent to child
Daycare to child
Common carriers to passengers
Employers to employees

No duty to warn of a dangerous condition outside the scope of the contractual duty
Examples:
Homeowner hires house painter
Daycare center hired by child's parent
A voluntary rescue creates a duty to do so in a reasonable manner without making danger worse

Example:
Assisting a friend with chill, but making the danger worse by using leaches not antibiotic
If there is misfeasance, there is a duty to assist

Example:
Accidentally hit a moose with your vehicle and leave without warning other drivers or removing the risk
Voluntary assumption of duty to assist person in peril based on very little affirmative conduct

Example:
Offering to call 911 and failing to do so
Defendant has a duty not to prevent others from assisting the person in peril

Example:
Bartender does not allow a Good Samaritan to use the phone to call 911
A statute requires one to act for the protection of another, which is different from using statute to establish standard of care when a duty already exists

Examples:
Child physical and sexual abuse reporting statutes
Motorist must remain at the scene of the accident
Other
4 Ways Statutes Can be Used to Create Duties:
1. Statutory Negligence
Courts adopt statutory standards as standards of care; relevancy test

2. Statutory Tort
Legislature specifically creates a private right of action

3. Mandatory Standard of Care
Legislature provides that a statute should be standard of care in particular negligence actions

4. Implied Right of Action
Statute does not explicitly say anything about creating private right of action, but statute may manifest the intent to do so
Special Relationship

Contractual Special Relationship
Voluntary Assumption of Duty
Innocent Prior Conduct
Reliance on a Gratuitous Promise
Statute
Intentional Prevention of Aid by Others
Duty to Protect Against Criminal Conduct of Third Parties
Duty to provide reasonable security to protect people form the foreseeable criminal acts of third parties

Turns on: Special Relationships, Enhanced Foresight, Narrower Duty
Arms-Length Relationships
Examples:
Landlord-tenants
Business owner-patron
Property owner-invitee
Hotel-guest
Employer-employee
School-student
4 Tests of Foreseeability for Criminal Conduct
1. Specific Harm Test
2. Prior Similar Incidents Test
3. Totality of the Circumstances
4. Balancing Test
Impact Rule
Zone of Danger I
Zone of Danger II
Recovery permitted for emotional distress injuries only if physical impact occurs

Most courts eventually dropped this requirement
Arises out of fear for one's own physical well-being
Arises out of fear for the physical well-being for another

Bystander Cases
Allows one to cover for pure emotional distress if the party was in the foreseeable zone of foreseeable danger, but escaped without physical injury

The "zone of psychical danger" is the geographic space within which a party is at foreseeable risks of physical injury
Allows recovery where a family member was killed or seriously injured in an accident

The Plaintiff though within the physical zone of danger was not physically injured, suffered some serious emotional distress at seeing the serious injury to a close relative
Thing
Independent Duty
Defendant breached an independent duty obligation to act reasonably for the Plaintiff's emotional well-being
Requires foreseeability and relationship directly with Plaintiff
What harms can be legally attributed to Defendant whose actions are combined with others and natural events
Focus on ways that causation has been served
Presupposes cause-in-fact
3 Factors
1. Causal Link:
Based on circumstantial evidence if A is present, B is likely to occur
2. Plaintiff's Knowledge:
Defendant has greater capacity to explain what happend and who was responsible
3. Policy:
A erroneous finding of no liability is more harmful than an erroneous finding of liability
Joint and Several Liability
Loss of Chance of Recovery
Alternative Liability
1. "True" Joint Torts
Parties deliberately engaged together in tortious activity, even though harm caused by only one party
EX: Graffiti, Drag Racing
2. Vicarious Liability
Employer-employee, principal-agent
3. Independent Actors
Multiple sufficient causes
Concurring independent causes
Both tortfeasors necessary for injury
Single indivisible injury
Allows a Plaintiff to obtain damages from a Defendant for a heightened risk of death or injury, even if the Plaintiff cannot prove the ultimate injury was caused by the Defendant's negligence
Triggered when it's
impossible to trace causation

Both A and B were negligent and we don't know which one caused the injury
Use the but-for test

Burden of proof is shifted to Defendants

Summers
Factors:
Each Defendant was negligent
The responsible parties are in court
Harm was caused by only one of the Defendant's simultaneous conduct
Plaintiff is unable to show which Defendant caused the harm
Defendant's have better access to the facts
Some sort of relationship between the Defendant's exists
Proximate cause
arises when:

Harm is extremely widespread

Magnitude of the injury is grossly out of proportion to the negligent conduct

An unforeseeable result occurs
There are multiple parties/factors which contributed to the injury
Concerned with whether the consequences:

Were the product of a
natural
and continuous
sequence of events

Were
foreseeable

Involved the
type of risk
that made the Defendant's conduct tortious

Were
"normal"
Test used to evaluate the consequences:


Majority rule:
Defendant is responsible only for foreseeable harms/harms within the risk

Minority rule:
Intervening forces can cut off liability, but only if unforeseeable (Direct Consequences)
The careless conduct of the Defendant sufficiently relates to the harm suffered by the Plaintiff so that the Defendant may be held liable

Intervening:
Foreseeable
Does NOT break the chain

Superseding:
Unforeseeable
DOES break the chain

Criminal conduct of a 3rd Party:
Generally superseding, unless it was reasonable foreseeable

1. Was the
Plaintiff foreseeable
?
2. Was the
harm foreseeable
?
3. Was there an
intervening/superseding force
between the time of the defendant's carelessness and the time of the accident?
4. Exceptions:

Medial Malpractice Complications Rule
Tortfeasors ordinarily liable for damages stemming from subsequent, ordinary medical malpractice

Egg-shell Plaintiff Rule
Defendant is liable for all harms exacerbated by the Plaintiff's preexisting conditions

Rescuer Rule
Defendant is liable to negligent rescuers becuase danger invites rescue
Economic and Non-Economic

Compensate the Plaintiff and restore to pre-injury position - make the Plaintiff whole

3 Types of Compensatory Damages:
1.
Past and Future Medical Expenses
(economic)
2.
Lost Wages
(economic)
3.
Pain and Suffering
(non-economic)
4.
Loss of Enjoyment of Life
(LOEL)
Majority:
Allows consideration of LOEL, but only as one element in a general damage award for pain and suffering
Minority:
Refuses any recovery for LOEL
Loss of Consortium:
Legal right to the company, affection and service of a spouse, parent, child, sibling

Purpose is to punish the Defendant and operate as a deterrent - courts want to deter behavior while also vindicating the interests of the Plaintiff and society
Mental state is key: malicious, wanton, oppresive, morally culpable
Award may properly vary with Defendant's financial circumstances and the nature of the misconduct
Typically only available with intentional torts or reckless/egregious conduct
Types of Pain and Suffering
Physical Pain
Mental Suffering
Emotional Distress
PTSD
Mental Distress in Immediately Impending Accidents
Remitter:
To remedy excessively high verdict
Additur:
To remedy excessively low verdict
Passion/Prejudice Review:


Creates a cause of action by statute for the benefit of a defined class of person left behind when Defendant has tortiously killed
Defenses
Now that the Plaintiff has all the elements needed to establish prima facie case of negligence, the Defendant can respond with Defenses
An "absolute defense"
Complete bar to Plaintiff's recovery
Plaintiff's recovery is reduced by the percentage of their fault
Pure
Plaintiff's recovery is reduced by the percentage of their fault, all the way from 0% to 100%
Modified/Mixed/Impure
Plaintiff's recovery is still reduced by the percentage of their fault
BUT Plaintiff's recovery is barred if Plaintiff's negligence exceeds a certain amount
Usually 49% or 50% depending on jdx
Plaintiff gives explicit written or oral permission to release another party from a duty of reasonable care
Sometimes called "waiver" or "release"
An explicit, contracts-based waiver of liability
Elements:
Must be clear and unambiguous
Must involve a meeting of the mids
Cannot be against public policy
Tunkl Factors:
Business of a type generally thought suitable for public reguation
Service of great importance to public
Party holds itself out as willing to perform services
As result of essential nature of service, in economic setting of transaction, party seeking waiver has decisive advantage of bargaining strength
In exercising the power, party confronts public with a standardized adhesion contract, no provision to pay more and gets protection from negligence
As result of transaction, person or property of purchaser is placed under control of the sellfer, at risk of its negligence
This is a defense if the Defendant can demonstrate Plaintiff voluntarily and knowingly assumed the risks inherent to a dangerous activity
Implied by the Platinffi's behavior
3 Subjective Factors:
1. Knowledge
of the risk
2. Appreciation
of the risk
3. Voluntary Assumption
of the risk


Voluntary participation in activity with known risks
EX: sports (participants and spectators)
Pimary assumption of risk
occurs when a party enters into a relationship with another knowing and expecting that the other person
will not
offer protection against certain risks arising out of the relationship
Example of
limited duty


Knew of risk yet still voluntarily exposed self
EX: agreeing to go skydiving

NOTE:
Many courts have done away with Implied Assumption of Risk and either brought it into the duty analysis or replaced it with comparative fault.
Primary
Secondary
No duty, comparative fault bars Plaintiff's recovery
Defendant owed the Plaintiff a duty of care, but the Plaintiff encountered a known risk imposed by the Defendant's breach of that duty
Assumption of Risk
Contributory Negligence
Comparative Negligence/Fault
Express Assumption of Risk
Implied Assumption of Risk
Implied Primary Assumption of Risk:
Implied Secondary Assumption of Risk:
Wrongful Death and Survivial Statutes
Punitive (exemplary) Damages:
Compensatory Damages:
4 Step Framework to Analyze Scope
Intervening Causes
Foresight Test
Fireman's Rule
Professional rescuers cannot sue torfeasors who cause emergencies in which the rescuer gets hurt
Negligence
Overview
Unintended harm
1. Duty
2. Breach
3. Causation
4. Scope of Liability
5. Damages
Defenses
General Duty of Due Care with Limitations:
Premise Liability
Duty to Rescue
Third Party Harms/Crimes
NIED
Reasonable person standard of care
Hand Formula
Statutes
Custom
Professional Negligence
But-For test
Subtantial Factor Test
Joint and Several Liability
Foresight Test
Third Party Acts
Exceptions:
Medical Malpractice Complications
Egg-Shell Plaintiff
Rescuer
Compensatory
Punitive
Contributory Negligence
Comparative Negligence
Assumption of Risk
Express Assumption (waiver)
Tunkl Factors
Implied Assumption (implied by Plaintiff's action)
Primary Implied: NO duty
Exception: Intentionally caused injury
Secondary Implied: Duty, but breached that duty and Plaintiff voluntarily expoed self to harm
A person acts to produce a noxious result, or knows to a substantial certainty it will occur
1. Assault
2. Battery
3. Intentional Infliction of Emotional Distress
6. Conversion
4. False Imprisonment
5. Trespass to Chattel
Intent
Intent is
subjective
based on the tortfeasor
Harm is objective for victim unless you have reason to know otherwise and then becomes subjective
EX: Someone has saif before that they don't like to be hugged

A person acts with the intent to produce a consequence if:
The person has the
purpose
of producitng that consequence
OR
The person knows to a
substantial certainty
that the consequence will ensue from the person's conduct
Transferred Intent
If a Defendant intends to commit one intentional tort, and instead (or in addition to) another intentional tort occurs, the court will find that the Defendant intended for the second tort to occur as well
An intentional act that causes another to be placed in reasonable apprehension of imminent
harmful
or
offensive
contact
What Constitutes
Harmful
or
Offensive
?

Objective standard unless information leads you to believe otherwise
The standard then becomes subjective

EX: Hugging a stranger. It then comes out that the person like to be hugged by people they don't know
An intentional act that
actually causes
harmful or offensive contact with another person

Can be from a distance
Placing a log in the middle of the road for a biker to fall over

Can occur when there is harm to a property that is closely connected to a person
Someone harms a car or a dog
What Constitutes
Harmful
or
Offensive
?

Objective standard unless information leads you to believe otherwise
The standard then becomes subjective

EX: Someone gets hit. it then comes out that they like to be hit
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 results, for the bodily harms as well

It is important to look at the relationship between the Plaintiff and the Defendant
i.e. Boss and employer
Elements of Battery:
1. Intent
Purpose or desire to cause harmful/offensive contact
Substantially certain harmful/offensive contact will occur

2. Harmful/Offensive Contact
Would a reasonable person find the act harmful/offensive?

3. To a person
To a person's body or something attached to it
Elements of Assault:
1. Affirmative voluntary act
Mere words insufficient
2. Intent
Defendant's purpose is to cause the apprehension of a harmful/offensive contact
3. Resonable apprehension of immediate harm/Imminent apprehension of harmful or offensive contact
Imminence of threat - no significant delay
Apparent ability to carry out threat
Plaintiff must be aware of threat
Elements of IIED:
1. Outrageous Conduct
Exceeds the bounds of decency/socially tolerable behavior
Words alone may be sufficient
Speical relationship may be relevant

2. Intent
Purpose or desire to cause such harm
Recklessness (only intentional tort where recklessness applies)
High degree of risk or emotional harm and Defendant acts in disregard of such risk

3. Severe Emotional Harm
Evidence of significant emotional anguish
Intensity and duration factors
False imprisonment is the wrongful confinement, restraint, or detention of an individual to a limited area

Courts have traditionally held that the Plaintiff must be
aware
of the confinement, but modernly some courts have been challenging this rule
Elements of False Imprisonment:
1. Willful Detention
Can be acts or words alone
Operating on the person's will in some manner
2. Performed Without Consent
3. Without Authority of Law
The Plaintiff must prove absence of authority
False Imprisonment Defense:
The Shopkeeper's Privilege Defense
Merchants can detain customers if they have probable cause to reasonably believe that the customer stole merchandise

The merchant must conduct their investigation in a reasonable manner and detain customers for a reasonable period of time
Intentional use or intermeddling with chattel in possession of another

The chattel is impaired to condition, quality or value

A trespass occurs when the owner is deprived for some time, or the property is damaged

Damages include temporary loss of use and repair costs
(nominal damages do not count)
An intentional exercise of dominion or control over a chattel which so seriously interferes with the right to another to control it that the actor may justly be required to pay the other the full value of the chattel

A conversion occurs when the owner is deprived of the property for a long period of time, or if the property is lost/destroyed

The exercise of unlawful control has to be so serious as to cuase a "forced sale" of the property

Damages are measured by the fair market value of the property
When does a trespass rise to the level of conversion?
The seriousness of the interference with the chattel is based on the examination of several factors:

The extent and duration of the dominion or control
The intent of the actor to assert a right inconsistent with the owner's right to control
The actor's good faith
The extent of the interference with the owner's right to control
The harm done to the chattel
The inconvenience and expense caused to the true owner
Defenses to Intentional Torts
1. Consent
2. Privilege
3. Self Defense
4. Defense of Property
5. Necessity
Consent can be
express

Consent can be
implied
from behavior where, under the circumstances, Plaintif's conduct reasonably conveys consent
(where Defendant has no reason to know that Plaintiff does not consent, no matter what the behavior suggests)

Consent can be
implied by law
Medical Emergencies

Consent can be
negated by law
Children cannot consent to sex
The basic instinct to defend one-self against the threat of harm together with the fundamental ethic that one has a right to do so justify the law's privilege to commit in self-defense an act that otherwise would be a tort
What is Self-Defense?

Self-defense can be a complete defense to intentional tort where the Defendant used reasonable force that Defendant reasonably (even if mistakenly) belived was necessary to prevent immediate harm
What is Required for
Self-Defense?

Defendant must believe force is necessary

Force must be found to be reasonably necessary from the reasonable person's perspective
When Does it Apply?

Threat of intentional harm

Unlawful coninement and arrest

Sometimes threat of negligently cause harm
Defense of Others
What is required for defense of others?

May be a complete defense to an intentional tort where the Defendant goes to the aid of another

Traditionally only permitted where victim actually privileged to invoke self-defense
Modernly may only require Defendant's reasonable belief of victim's privilege

Defense of others limitations?

Sometimes barred from application where initial person in jeopardy was not privileged to invoke self-defense
A reasonable mistake does not negate the privilege
Defense of Self and Others
FACTORS:
Timing
The conduct to which the Defendant responding is in progress or eminent
Must act in real time
Accuracy
The Defendant must have a reasonable belief that his interests are being threatened
But, reasonable mistakes as to threat are allowed
Self-defense:
Reasonable mistake as to existence of danger allowed
Defense of Others:
Reasonable mistake as to whether the other person is being attacked or has a right to defend himself allowed
Force
May only use amount of force necessary to guard against conduct
Reasonable force may be used, but excessive force is a tort
No deadly force unless threat of serious bodily harm
Elements of Self-Defense:
Actual or apparent necessity
Defendant believes there is a necessity
Factors to look at:
Size, age, strength, reputation, aggressor, degree of physical harm reasonably feared, presence or absence of weapons
Other concerns:
Reasonable force, retreat rules, verbal provocation, ecessive force
When can one use
reasonable force
when defending property?
To prevent damage to one's real or chattel property
Unlike self-defense, reasonable mistake will not
excuse force directed against an innocent party
Allows one to interfere with the property interests of another in order to avoid greater injury
2 Types of Necessity:
Public
(complete defense)
Defendant takes someone else's property in order to prevent harm to the community
Private
(incomplete defense)
Defendant takes Plaintiff's property and uses t to prevent greater harm to their own property
Abnormally Dangerous Activities
6. Trespass
Tresspass to Land
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