Definition of Torts

8/7/2019 Definition of Torts

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Definition ofTorts

Copyright 1999 by Ronald B. Standler

The word torts is rarely used by nonattorneys and the definitions in dictionaries are notparticularly enlightening.

The venerable legal treatise, Torts, by Prosser and Keeton attempts to define tort, largelyunsuccessfully:

Broadly speaking, a tort is a civil wrong, other than a breach of contract, forwhich the court will provide a remedy in the form of an action for damages.

Prosser and Keeton then criticize as "inaccurate" what they just said, by noting that otherremedies, such as injunctions, restitution, and self-help are available. In desperation,Prosser and Keeton try again to define tort:

It might be possible to define a tort by enumerating the things that it is not. It is

not a crime, it is not a breach of contract, it is not necessarily concerned withproperty rights or problems of government, but is the occupant of a largeresiduary field remaining if these are taken out of the law.

Part of the problem in making a precise definition of torts is that this area of law hasexpanded in an ad hoc fashion by judges (i.e., common law) and legislatures.

Torts is a large subject area in litigation, in which a victim (e.g., plaintiff) generally seeksmoney from some person, or some corporation, who harmed the victim.

The easiest way to get a sense oftorts is to list the major areas of tort litigation:

personal injury (e.g., automobile accident, slip and fall, dog bite)

medical malpractice

products liability (e.g., defect in either manufacturing or design of product, failureto warn)

wrongful death: survivor recovers economic value of remainder of decedent's life

patent infringement; copyright infringement

defamation (i.e., libel or slander)

intentional wrongs against a person: assault, battery, false imprisonment,intentional infliction of emotional distress. (N.B., assault and battery can also becrimes, see my essay that comparescivil and criminal law)

wrongs involving tangible property: conversion, "trespass to chattels" (N.B., sameoccurrence could also result in criminal prosecution for theft)
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wrongs involving real property: nuisance against nearby landowner, trespass onland

wrongs against a business, such as "unfair competition" or trademarkinfringement

dignitary harms against a person, such aso invasion of privacy: intrusion on seclusion, unreasonable publicity given

to private life, publicity placing person in false lighto civil rights violations, e.g., 42 USC 1983

four elements

There are four elements to a tort, allof which must be present before the court can order

a remedy:

1. Duty. The defendant must owe a legal duty to the victim. A duty is a legallyenforceable obligation to conform to a particular standard of conduct. Except inmalpractice and strict liability cases, the duty is set by what a "reasonable man ofordinary prudence" would have done. There is a general duty to preventforeseeable injury to a victim.

2. Breach of the duty. The defendant breached that duty.

3. Causation. The breach was the cause of an injury to the victim. The causation

does notneed to be direct: defendant's act (or failure to act) could begin acontinuous sequence of events that ended in plaintiff's injury, a so-called"proximate cause".

4. Injury. There must be an injury. In most cases, there must be a physical orfinancial injury to the victim, but sometimes emotional distress, embarrassment,or dignitary harms are adequate for recovery.

In most torts the defendant's actions were an accident (e.g., defendant was negligent), buttorts also cover wrongs where the defendant intended to harm the victim.

Sometimes one sees the statement that the central idea in [most] torts is the concept offault. Fault is the departure of defendant's conduct a minimum acceptable standard ofconduct. In other words, fault is the breach of the duty mentioned above.

I say "most torts", because there are a few, but important, torts in which liability isimposed without finding fault with the defendant's conduct. These so-calledstrictliability torts include:


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1. products liability2. keeping of wild or ferocious animals3. abnormally dangerous activities (e.g., storing, transporting, or using explosives in

a populated area)

duty

Justice Oliver Wendell Holmes, in Texas & Pacific Railway v. Behymer, 189 U.S. 468,470 (1903) said:

What usually is done may be evidence of what ought to be done, but what oughtto be done is fixed by a standard of reasonable prudence, whether it usually iscomplied with or not.

In U.S. v. Carroll Towing Co., 159 F.2d 169 (2dCir. 1947), Judge Learned Hand

considered a case in which a tugboat had broken away from a barge, the barge later sank:... the owner's duty, as in other similar situations, to provide against resultinginjuries is a function of three variables: (1) The probability that she will breakaway; (2) the gravity of the resulting injury, if she does; (3) the burden ofadequate precautions. Possibly it serves to bring this notion into relief to state it inalgebraic terms: if the probability be called P; the injury, L; and the burden, B;liability depends upon whether B is less than L multiplied by P: i.e., whether

B < P LThis is one of the few reported judicial decisions in the USA that contains an equation.When I first read this case, I was bothered by the retrospective application of the analysis.Afterthe loss, L, has occurred, it is easy to identify the specific measure(s) that allegedly

shouldhave been taken to prevent the loss and focus on just one or two loss-preventionmeasures. But, before the loss, there are N possible losses, L1, L2, L3, L4, ... LN, each ofwhich can be prevented by measures that cost less than the probability of injury times theamount of loss. But, the manufacturer or service provider might have an uneconomicalproduct or service ifallN loss-prevention measures were taken.


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Intentional Torts And Privileges

Prosser, Wade, & Schwartz's Torts: Cases & Materials 9th

Edition

John W. Wade, Victor E. Schwartz, Kathryn Kelly, David F.

Partlett

Battery1) Axn2) Intent to cause h/o contact / imminent apprehension

1. Desire/purpose OR2. Know w/substantial certainty

3) Results in h/o contact1. Contact may be an obj. close to P

Assault

1) Intent (desire/kwsc) to cause h/o contact / imminent apprehension1. Well founded rsbl apprehension2. May not need actual capacity

2) Axn by D1. Must B overt/offer2. Words can defuse but not if it reqs you to buy safety

3) Results in imminent apprehension

False Imprisonment1) Axn by D

1. If theres rsbl & safe escape, no F.I.

2) Intent (desire/kwsc) to confine P / 3rd party3) Conscious of confinement / harmed by it4) Results in confinement of P

1. Apprehension of Force (explicit/implicit)2. Retention of Property is enough restraint3. Physical Barrier4. Force5. Imminent threat of harm to property/immediate family6. Assertion of Authority7. Failure of release when theres duty to do so

Intentional Infliction of Emotional Distress1) Extreme & Outrageous Conduct

1. Beyond all bounds of decency2. Big obj. test of rsblness

2) Intentionally/Recklessly causes1. Recklessness--disregard of high % that severe emotionaldistresswill occur


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3) Severe emotional distress4) 3rd Party, h/she should B

1. Present2. Immediate family / suffer bodily harm

Trespass to Land1) Intent to enter land in possn of another / causes a thing /3rd person todo so2) Damages are nominal3) Things req. actual damage like pollution

Trespass to Chattels1) Impairment to chattel2) Can't use chattel3) Bodily harm

4) Intermeddle intentionally5) Disposses / deprive the owners possn6) No nominal damages for harmless trespass

Conversion1) Intent to interfere should be complete and substantial tojustify a sale2) Bad faith3) Complete deprivation4) Unjustified intent to assert a right5) Complete value6) Access to something which is needed for the operation / poss'nofanother

Consent1) Explicit2) Implied

1. Rsbl impression by axn2. Words/deeds which rsbl person would expect3. When injured to the pt. of unconsciousness & reqspromptattention for life / limb4. If in the course of operation, unanticipated cond.which imperilslife/ limb near the area of operation then can operate on it5. If no immediate removal would necessitate a sep.operationwhich may unduly threaten the patient then can imply consent

3) Mistake of Facts


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1. Not liable unless D knew mistake of facts2. Not liable unless D induced P by misrepresentation

4) No Good1. Duress2. Threat of force to person in immediate family

3. Drastic circumstances5) Illegal Activity1. Maj. say that consent is not a defense so parties areliable toeach other2. Min. say that consent is defense so parties can't recover

Self Defense1) If rsbly believe that they are unrsbly attacked, then can usersbl forceto protect yourself

1. Protect from force

2. Imminent apprehension of force3. False Imprisonment2) Force must be rsbl

1. Rsbl under circs2. No deadly harm unless life/serious limb threatened3. Cannot retaliate

3) Must retreat if A threatens w/deadly force4) Rsbl mistake is allowed5) D isn't privileged to defend against privileged force unlessthe othersprivileged force is based upon a rsbl mistake not caused by D6) Self-defense transfers over with torts to 3rd partysitutation, unlessunrsbl

Defense of Others1) Rsbl force under circs2) Rsbl mistake under circs3) Maj. say that if 3rd party intervenes & mistakenly helpsagainstprivileged force, the 3rd party is still liable even though itmay have beena rsbl mistake

Defense of Property1) Rsbl force under circs

1. No deadly force2. Less force than is needed to protect people

2) Can't use force in substitute if you couldn't use when present3) Traps arent discriminating so its problematic


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1. Entirety of what you are guarding v. entirety to harm4) Rsbl force allowed for prevention of crime

Repossesion of Property1) Can repossess if done w/o unnec. force/violence

2) Prompt & immediate hot pursuit nec.3) Liable if mistake occurs rsbl/not4) Repossession of property peacefully in installment sale trxn5) Can detain a person on premise if person rsbly believed tohave takenchattel unlawfully for rsbl investigation

Public Necessity1) Apparent nec. is enough2) No need for compensation3) Private citizen can act for pub. nec.

Private Necessity1) Although has the right to stay, must compensate2) Tort may be unjust enrichment3) If disproportionately harms, priv. nec. doesnt apply

Justification1) Only if no traditional defenses can't be used

Negligence

Elements of NegligenceBreach of Duty1) There's duty 2 use rsbl care & behav. rsbly 2 protectothers from unrsbl risk2) Breach when there's failure 2 use rsbl care/behav. unrsbly

Causation1) Causation in fact--cause of the fact2) Proximate causation

Damages1) Must B present2) No nominal damages allowed

Breach of DutyRsbl Care/Standard

1) Foreseeability1. Draw precautions & foreseeability 2 a pt. only2. Econ. arg. that U should only guard againstwhat rsbl person can foresee

2) Inherently dang. obj's


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1. Take extra care 4 inherently dang. objs b/crsbl person would take more precaution2. Ez'er 2 take care of only few dang. things

3) Rsbl person takes remedy against something anticipated1. Can anticipate unusual events but not

foreseeable from constructive/actual notice2. Rsbl person takes axn 2 remedy fromconstructive/actual notice3. Likelihood of harm, extent of harm, & ease ofavoiding risk looked @ 4 suff. 2 induce rsbl person 2 avoid;

` NOT probability4) Use of Dang. Objs

1. Dang. may B insig. against benefit 2 the soc.2. If making dang. obj. safe is high costoutweighing benefit, it's unrsbl 2 use it3. Rsbly safe isn't absolute safety but gets rid

of lot of risk @ low cost4. Foreseeable but unlikely harm, still take care5) Stand.of Rsblness changes w/X

Cost Benefit Analysis1) If B is less than Lp (burden is less than probability x gravity of

harm), thenneg. not 2 take precaution2) Policy 2 min. own cost & motivate 2 internalize soc. cost

1. Cost of risk & harm = harm caused + cost 2 precaution2. D shouldn't pay both b/c no incentive 2 avoid harm

3) Rest.1. Neg. if risk outweigh utility2. Risk of harm, likelihood, extent v.utility/benefit, burden of things safer

Rsbl Persons Stand.1) Obj. Stand. of rsbly prudent person

1. Knows certain things like objs fall, fireburns, etc.2. Shouldn't need 2 prove certain things & liableeven if lack knowledge b/c min. stand. of knowledge req'ed

2) Custom1. Doesn't prove by itself rsbl & neg.2. Relevance b/c [1] experience & judgment, [2]constructive notice, [3] opp. 2 do things safely & [4]

feasibility3. Irrelevance b/c may not always B rsbl

3) Circs 4 rsbl prudent person(1) Circs incl. emergency & imminent peril b/cord. person not hero(2) Disability


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1. If blind, stand. is rsbl prudentperson who's blind2. Disability taken into circ.

(3) Incl's superior attention, memory, info,intelligence, & judgment (iffy on last 2 b/c rest. didn't give

exs) (4) Child1. Usually 4 neg. of children, apply age,experience & intelligence 4 a child that age2. Adult stand. used when the activity isinherently dang. like operating machinery

(5) Insanity1. Usual stand. 4 insane people is rsblpersons stand. w/o insanity taken into acct.2. Policy rsns of compensation,deterrence, & false claims

3. Maj. do not take insanity into acct.even if it's sudden b/c ez'er 2 fake4. If insane P, then taken into acct b/ccompensation goal dif. where everybody is a

tortfeasor5. If insanity prevents P fromunderstanding the sit., then P's not barred from

recovery(6) Sudden Physical Collapse--taken into acct(7) Mental Deficiency

1. Taken into acct. if prevented P fromunderstanding but not into acct if can understand2. False claim less likely b/c can look @ history3. Stand. is btwn childs & insane

(8) Profession1. Rsbl in the field / profession2. Rsbl member who has knowledge that'sposs'ed normally/ord'ly in the profession3. Usually need expert testimonies4. Not need expert testimony if the circ.calls that even layman knows

(9) Doctors1. If a specialist, then it's stand. ofrsbl specialist2. Locality Rule--Dr's meas'ed by samelocality; used in rural areas3. Informed Consent--breach of duty whennot inform material risks & alt.s that would likelyaffect P's dec's

[1] P must show that if informed,


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wouldn't have perf'ed/consented[2] Stand. of obj. (rsbl patient)v. subj. (the particular patient)[3] Risk not warned must materialize[4] Dr's must disclose pers. int.

that may effect Dr's judgment4. Exceptions 2 disclosure[1] Risk ought 2 B known/already known[2] Disclosure would Bdetrimental 2 patients int. (probs)[3] If in ER, the patient isn't incondition 2 det. 4 himself

4) Aggravated Neg.1. Automobile Guest Statutes2. In CA, if by gratuitous favor there's only ord.duty of care & can only recover if there's aggravated neg.

3. Probs in distinguishing guests & increased misconductRules of Law1) 4 ways 4 rsbl persons stand.

1. Applying 2 the facts of the case by judge/jury2. Est. by leg. / adm. regulation3. Est.'ed by jud. dec.; part. cond. under thematter of law4. Adopted by Ct. of leg./adm. reg.; usually nocivil liabs but use the statute 2 det. unrsbl behav.

2) Violation of Statutes1. Statutes give fixed stand. 2 det. neg.2. If statute imposes specif. duty 4protection/benefit then liab.3. Statutory purpose doc.--look 2 protectedpeople & harm intended 2 prevent4. Ct. doesn't have 2 accept all the statutes5. Not adopt Sun. blue laws b/c not adopt rsblcond. when protect int. of state/secure indiv's enjoy of rt.& privileges

3) Neg. Per Se1. Maj. & Rest. view2. Once the stand. is set by the statute,unexcused violation is neg. per se3. Excused Violation 4 Neg. Per Se

[1] Rsbl violation b/c of the actors incapacity[2] D doesn't know/shouldn't know ofcomplying w/it[3] D is unable 2 comply after rsbl care[4] D is confronted w/emergency unrel'ed 2his miscond.


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[5] Greater risk of harm 2 D/others by complying[6] Not exclusive list of excuses

4) Presumption of Neg.1. When P shows that statute should B used, thenit's prima facie case of neg.

2. If there's no rebuttal, then D is neg.3. Rsbl excuses allowed4. If D evens the scale, D wins; If P tips bypreponderance, P wins

5) Evid. of Neg.1. Still the scale idea but D can put forth anything2. Jury decides if P's evid. tilts the scale / not3. P in theory can win even w/o presenting anything

6) Neg. per se v. Presumption of Neg.1. In excuses, Neg. per se only allows recog'edexcuses which the judge decs v. Presumption of neg. allows

any excuse that's 4 rsbl behav. which jury dec's2. In rebuttal, Neg. per se only recog. violationif excused v. Presumption of Neg. where D can rebut

Proof Of Neg.1) Circ. Evid.

1. Actual notice is when person actually knew2. Constructive notice is when by judging thecondition of the evid., rsbl person would've noticed;

should'veknown it was there3. Inference from inferences4. Infer from 1 fact 2 another fact

2) Res Ipsa Loquitur (RIL): Special Kind of Circ. Evid.(1) Deals w/the gap in the evid.(2) If U know, then can't use RIL(3) Reqts

1. D had exclusive control of the instrumentality2. The occurrence doesn't ord'ly occur w/o neg.3. There was no contrib. neg.

(4) Rebuttals1. If D can show that there was due careexercised, then it precludes neg.2. Rebuttal must B specific not gen. due care

(5) If by 3 reqts of RIL, even if there R otherpossibilities, if it's more likely than not Ds neg., then D's

neg.(6) D usually loses(7) Medicine & RIL

1. If common hazard, then no RIL


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2. Inherent risk despite due care exception[1] If there's low risk but canhappen despite all due care, ct's won't

draw inference[2] If P took calculated risk

which is rare but realthat injury can occur, RIL doesn't apply(8) Superior Knowledge of D Theory

1. Smoke out evid. by RIL b/c D is in thebetter position 2 obtain evid.2. Even w/o superior knowledge, if allthe reqts met, then more likely that D was neg. &probably liable so unfairer 2 P not 2 apply

(9) Ybarra Exception: Policy rsns1. Each Dr's has specific role & noneliable solely but anyone may B liab.

2. Little possibility of smoking out3. Dr's R insured so not so unfair4. All the D's had control of instr. @some X so better 2 put burden on them5. When patient is unconsc., all D's havecontrol of instr., & where unusual injury occurs,

apply RIL6. Specif. exception b/c spec.responsibility by med. profession, vicarious liab.,

& shared control7. Usually, P can't win against 2/more Dby showing merely neg. by 1 or the other must

have neg.(10) D can show lack of neg. 2 jury(11) RIL imp. b/c would've dismissed before evengetting 2 the jury(12) Dif. Approaches 2 RIL

[1] Inference1. Maj. Rule even though weakest2. Jury may infer whether / not D neg.

[2] Presumption1. D must put a box 2 rebut the

presumption2. P still has 2 prove so heavierburden (CA's)3. If scale even, D wins

[3] Shifting Burden of Proof1. D must tilt the scale2. If even, P wins3. Min. view


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(13) Similarities & Comparisons 2 violation ofstatute rules

1. Neg. per se --strongest & maj. but notshift burden2. Presumption similar 2 Presumption of RIL

3. Evidence similar 2 Inference of RIL4. Inference --weakest in RIL but maj.

Causation2 Types

1) Causation in Fact2) Proximate Causation

Causation in Fact1) But 4 Causation Test

1. But 4 D's unrsbl behav., the accident wouldn'thave occurred

2. Can have lots of but 4 causes 4 single harm3. Another way of saying that D's neg. is subst.factor of harm4. Doesn't apply when wrong place @ the wrong X incidents

2) More Likely Than Not1. More likely than not D's neg. was subst. factorthen possibility of something else occurring is discounted2. Must make ed'ed guess3. More likely than not means 1/2 or more

3) Injury Caused by Neg.1. Coexistence of injury & neg. isn't enough2. Neg. must have caused the injury3. Can infer causation from circ. evid.

4) Burden of Proof1. D only needs 2 show that more likely than notinjury wasn't the cause2. D doesn't have 2 prove another specific cause3. Relev. 2 incl. anything 2 disprove causation

5) Exception 2 But 4 tests & more likely than not(Herskovits Case)

1. No but 4 cause b/c lwr than 50% chance ofsurviving so wouldve died anyway w/o neg.2. Lost chances of life that was unrecoverable somake an exception3. Proportionate amt. of recovery not all theharm 4 D's neg.4. Only use this approach if show statisticallymore likely than not harm was caused by D's neg. in

medicine(Merrell Dow Case); Can't use it in birth defect cases where


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can't tell if the harm was caused by the drug6) Concurrent Cause

1. Can have more than 1 causations & all R liab.2. Each persons liab. alone may not have causedthe harm but sep. axns combined & prod'ed the single harm

3. One persons liab. doesn't negate the others liab.4. When neither axns R but 4 causes(1) Each causes were subst. part of theharm & should B liabl.(2) Think of but 4/more likely than not1st; then look 2 subst. part of the harm(3) Subst Factor Test

[1] Reverse But 4 Cause--Ds neg.behav. alone would've caused & would've

been but4 cause in the absence of other causes

[2] Double But 4 Cause--eachwould've been the but 4 cause, but 4 theother cause

[3] Book Note Def.--each alonewould've been suff. 2 bring about the

harm7) Joint Tortfeasors

1. Each neg. & 2 neg. acts together caused singleinjury OR2. Both acted in concert w/common plan design actin purpose

8) Joint Tortfeasor Probs/Exceptions1. Summers Case--shifted the burden of proof 2 D2 absolve themselves b/c can't say each more likely than notdid it; both acted neg'ly & smaller # than Ybarra so more fair2 hold them liab.2. Sindell Case--can't prove which mfgr'ed DES thatP's mom took; new theory where similar 2 Summers, burdenof proof shifted 2 D 2 show they didn't make DES & eachliab. 4 it's share by sev. liab.

(1) Consumers would B helpless w/o it(2) Mfgr's R in better position(3) D's R better able 2 bear the cost;risk spreading(4) Delayed effects of the drug(5) Deter from happening again(6) All the D prod'ed ID formula

Proximate Causation1) Policy

1. Not about cause but limiting legal responsibility


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2. No formula 4 prox. causes3. Fact oriented; result 1st & rsning later

2) Thin Skull Doctrine1. Take P as U find them2. Limited; conseq. of PI 2 persons

3. D pays by harm not by unrsblness b/c goal 2compensate against people who act tortiously3) Tools 4 Prox. Causation

1. Natural & cont. sequence2. Subst. factor in prod'ing the effect3. Dir. cnxn w/o intervening4. Too attenuated5. Likely 2 result6. Foreseeable result7. Remoteness of X & space8. Dir / indir.

9. Foreseeability4) Direct1. A factor in prox. cause not end all2. Being dir/indir. doesn't really tell who ismore unrsbl3. Polemis ct. said damages 4 dir; if indir.harm, then must have 2 foresee4. Def. --Conseq's flow in unbroken seq. w/ointervening cause from the orig. neg. act; act on a set stage

w/ointervening axns

5) Foreseeability1. Probably most imp. factor2. Wagon Mound ct. said no liab. 4 unforeseeableharm; not reconciliable w/thin skull doc.3. As long as type of harm was foreseeable, thendoesn't matter about the extent of harm4. Remote risk can B rsbly foreseeable

6) Palsgraf Case(1) Andrews Factors

1. Dir. cnxn--nat. & cont. seq; no indep. cause2. No remoteness in X & space3. Foreseeable

(2) Cardozo1. Foreseeable Ps--harm 2 part. P inbreach of duty

7) Major Tools 2 Analyze Prox. Cause1. Dir. / indir.2. Foreseeable conseq./harm3. Foreseeable P


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4. Scope of risk5. Tenuousness & potency of peril

Intervening Cause1) Def.

1. Harm by later cause of indep. origin which D

isn't responsible 42. Intervening Acts come after neg. & before injury3. Relev. 2 Prox. cause

2) General Norm1. Indep. intervening act cut off liab. but notevery intervening act is superseding2. Ord'ly neg. intervening act does NOT supersede

3) Foreseeability & Liability1. If intervening acts R foreseeable, then D is liable2. Even if not foreseeable P, liab. ifforeseeable result/harm

3. Even if not foreseeable manner, liab. ifforeseeable result4. Notion of basic scope of actors cond. / partof the risk

4) Exceptions when Intervening Acts R Superseding1. If both intervening act & resultunforeseeable, then superseding & no liability2. Wrong X, wrong place so no incr. in P's risk;if neg. of D doesn't incr. P's risk3. If it wasn't w/in the scope of risk

Special Theories of Superseding Causes1) Intentional Crim. Acts

1. Usually, superseding & no liab. if interveningact was intentional crim. act b/c extraord. even ifforeseeable result w/unforeseeable act/manner2. Exception --if D's neg. created unrsbl risk 4crim. act, then not superseding; if the intervening crim.

intentionalact was unrsbl risk then not superseding

2) Purveyors of Liquor1. Commercial sellers R liab. 4 neg. of otherswho drive after drinking b/c can stop serving & spread liab.

by insurance2. Most ct's don't hold soc. host liab. when therecipient is adult3. Soc. host liab. if the recipient is a childb/c illegal 2 serve minors in the 1st place

3) Rescuers1. Rescue doc.--Ord'ly rescuer allowed recoveryunless reckless whether rescuer injures himself, 3rd party,


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rescuee, / neg. party2. Reckless is higher stand. than rsbl3. Attempt 2 escape dang. then can recover unless reckless4. Most ct. apply rescue doc. 2 rescue of prop.as well

5. Doc. b/c 2 some extent rescuers R foreseeable P4) Medicine Neg.1. Genly med. neg. isnt superseding unless highly unusual2. Exceptions

(1) Dr. intentionally inflicted(2) Misperf. on operation/wrong operation(3) Wrong patient(4) NOT a gross neg. stand.

3. P injured by D & gets disease in the hospital(1) If incr'ed risk b/c of D, then liab.(2) If risk isn't incr'ed by D's liab., then

no liab.5) Suicide1. Usually suicide is a superseding event b/c it'san intentional act that breaks the chain2. Exceptions

(1) Not know he's committing suicide(2) B/c of irresistable impulse committed suicide

Joint TortfeasorsTypes of Joint Tortfeasors

1) Acting in Concert1. Express / tacit agmt 2 coop. 2 induce certain result2. Agree 2 do something unrsbl creating unrsblrisk/induce unrsbl risk

2) Joint Duty1. Ex. of owner & manger having duty 2 elevator

3) Vicarious Liab.1. Employer liab. 4 employee when act w/in scopeof the job

4) Concurrent Tortfeasors1. Indep. acts concurring creating harm 2 P ofindivisible injuries

Joint & Several Liability1) Collecting Damages

1. P can collect all the damage from 1 of the 2joint tortfeasors2. P can only get it once though3. P can collect in whatever way he likes4. In C/L, can join Ds in concert of axn but not4 concurrent tortfeasors


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2) Reconciling Comparative Neg. w/Joint & Sev. Liab.1. If D1 is judgment proof & there's no joint &sev. liab., P2. Min. --no joint & sev. liab. in comparative neg.3. Maj. --Joint & sev. liab. w/comparative neg.

so D's stuck if the other D can't pay4. Exceptions(1) Sindell Case--responsible 4 own portion(2) CA--not apply joint & sev. liab. innon-econ. damages(3) If D's have very low %s(4) Apply only 2 certain types of Ds

3) Satisfaction & Release(1) Unjust Enrichment Avoided

1. If already got compensation of fulljudgment, then full satisfaction & other D's

shouldnt' have 2 pay P again in sep. judgment(2) Partial Satisfaction

1. Part compensation will B credited &subtracted when collect from sep. 2nd judgment2. There's possibility of inconsistent judgment

(3) Release1. In C/L, if release 1 joint tortfeasor,then releases all the joint tortfeasors2. If call it covenant & / reserveexplicitly not 2 release, then won't release other

joint tortfeasors(4) Mary Carter Agmt

1. P would enter agmt w/D that D wouldpay @ least certain amt.

2. If the amt. from trial goes over whatD thinks, then P would pay D the excess amt.; but

D cantprofit from P3. Probs b/c deprive of fair trial from

c collusion btwn D & P4. Valued b/c risk reduced & incr. settlement

4) Contribution & Indemnity(1) Apportionment

1. Contribution --The other D pays itsshare 2 the D who paid2. Indemnity --D pays 4 the entire damage3. In C/L, indemnity was allowed bycontrib. wasn't

(2) Contribution


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1. Today allow contrib. except inintentional torts there's no contrib.2. Contribution available only btwn jointjudgment debtors (when P sues both); rejected in

Knell Case

3. Div. =ly in the old approach; div. byproportions of fault now(3) Interspousal Immunity

1. Maj. --D can't B liable 4 Ds spouse;since no joint liab., no contrib. allowed2. Min. --Allow contrib. btwn spouse b/cthere's tort liab. but spouse can't bring suit; since

liab.then joint tortfeasor allowed so contrib. allowed

(4) Allocation Prob. when P settles w/D1; Can D2get compensation from D1?

1. Permit Contrib.--D1 pays but unfairb b/c the value of settling w/ P disappears; not usethis method

2. D1 discharged so long as goodfaith--Unfair 2 D2 b/ccan't get contrib.; proof probs on goodfaith so lots of litigations3. Settlement w/D1 means selling 1/2 ofC/A w/D1--D2 would only pay 4 its share of fault;unfair 2 P b/c might not get full compensation so

would Breluctant 2 settle / not settle w/marginal Ds;

greatestequity of all 3 methods

false imprisonment

Intentionally restraining another person without having the legal right to do so. It's notnecessary that physical force be used; threats or a show of apparent authority aresufficient. False imprisonment is a misdemeanorand a tort (a civilwrong). If theperpetrator confines the victim for a substantial period of time (or moves him asignificant distance) in order to commit a felony, the false imprisonment may become a

kidnapping. People who are arrested and get the charges dropped, or are lateracquitted,often think that they can sue the arresting officer for false imprisonment (also known asfalse arrest). These lawsuits rarely succeed: As long as the officer hadprobable cause toarrest the person, the officer will not be liable for a false arrest, even if it turns out laterthat the information the officer relied upon was incorrect.

False imprisonment may sound like a person being dangerously restrained against theirwill and at risk of being seriously injured or killed. In a way, it is, but also can describe
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other situations which arent so perilous sounding.

The definition of false imprisonment is the unlawful restraint of someone which affectsthe persons freedom of movement. Both the threat of being physically restrained andactually being physically restrained are false imprisonment. In a facility setting, such as a

nursing home or a hospital, not allowing someone to leave the building is also falseimprisonment.

In particular, in nursing homes, the various body restraints are considered falseimprisonments. Not too many years ago, upon entering a nursing facility it was a commonsight to see many elderly people positioned in wheelchairs with vest or belt restraints on,to keep them from moving around independently. Nowadays, that activity is more likelyto fall under the definition of false imprisonment because it restricts those individualsability to move around on their own, should they desire to.

In fact, should a facility use patient restraints not related to medical treatment, under the

Health Care Financing Administration, they could lose their Medicaid certification. Avariety of situations are possible with this tort -- false imprisonment. If a person refuses tosign a hospitals voluntary admission form and is physically prevented from leaving, andthen does sign an agreement form consenting to voluntary admission, this could beconsidered false imprisonment.

One such case did occur in Foshee vs. Health Management Associates. A patient wasseeking admission to a psychiatric hospital after being declined for lack of space at afacility her physician had referred her to. At the psychiatric facility, a nurse told thewoman she could not see a physician unless she was formally admitted to the nursingfacility. This nurse continued on saying that this woman could sign a form for voluntary

admission, but if she refused to do so would be kept involuntarily under the states civilcommitment statute. She was kept under restraint at the facility for two days against herwill and was discharged only because she refused to sign a form authorizing her healthinsurance to pay for her admission and for the facilitys psychiatrists consulting services.

The District Court of Appeal of Florida ruled there was deceit and coercion of this patientby the nurse, and a civil suit was brought against the psychiatric nurse for falseimprisonment of this woman. The facility and psychiatrist were also found liable in thiscase. Quite the opposite can also happen with false imprisonment and the lack of usingrestraints that could result in a negligence case being filed if a patient is hurt. A case suchas this scenario did occur.

In Swann vs. Len-Care Rest Home, Inc, a physician ordered restraints on an as neededbasis and also wrote a letter ordering the resident restrained. When this patient was notrestrained, fell and required hospitalization for a head injury, a lawsuit was filed fornegligence.

What happened is a disoriented elderly woman, who frequently got up from herwheelchair and subsequently fell, had family requesting that she be restrained. In this


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group living facility the type of care provided was similar to that which would be found inan individuals home, without direct, one-on-one personal care.

The physician not only wrote and signed an order for restraints, but also wrote a separate

letter to facility management requesting the resident be restrained while unattended. Thefacility was sued for negligence and lost the case since the resident should have beenrestrained as ordered and requested and was not.

So, false imprisonment is not an easy situation to determine, most especially in nursingfacilities. The patients safety is of the utmost importance, but unlawfully restraining hasequal hazards with it.

Outside nursing home facilities, false imprisonment could occur if a retail store managersuspects you have stolen some items from the store and takes you to a back office fordetainment. During this time of confinement, you are refused a chance to go to the

bathroom or get water and the exit to the room is repeatedly blocked by the store managerwho wants to keep you detained until police arrive. This is also considered falseimprisonment, most especially if it continues for an excessively long period of time andthreatens the individuals well-being.

When considering whether false imprisonment has occurred, keep in mind the particularscenario at hand. Was a crime committed or not, by the person being detained? Was thewell-being of the individual hampered and were they threatened if they attempted toleave? Were they physically restrained against their will with repeated attempts to escapeor was the restraint more passive like a chemical restraint, medication, which altered thepersons state of mind. Chemical restraints can be just as restraining, if not more so, even

though there is not appearance of restriction of movement.

Topics - The Difference Between a Felony and a Misdemeanor

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What is the difference between a felony and a misdemeanor?

Answer: When you commit a crime in our society, you have to be punished. How muchpunishment a criminal gets depends on how bad their crime was.

To help determine how bad a crime was, the crime is called either a 'felony' or a'misdemeanor'.

Felonies are more serious crimes, and misdemeanors are less serious crimes. Both canalso result in imprisonment.

Felonies and misdemeanors are also given a number explaining how serious the crime is.The most serious crime is a 'class one felony', and the least serious crime is a 'class three
http://www.fugitivewatch.com/c-felony-misdemeanor.html#%23http://www.fugitivewatch.com/c-felony-misdemeanor.html#%23


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misdemeanor'. Here's how the order goes: CLASS 1, 2, 3, 4, 5, & 6 FELONIES, CLASS1, 2 & 3 MISDEMEANORS. A class 1 misdemeanor falls right after a class 6 felony.

Punishment is based off of this system, and can result in either jail time, a fine, or both.The jail time for felonies is based off of their class according to the following chart:

For a class 2 felonyMin 4 yrsMax 10 yrs

For a class 3 felonyMin 2.5 yrsMax 7 yrs

For a class 4 felonyMin 1.5 yrs

Max 3 yrs

For a class 5 felonyMin 9 monthsMax 2 yrs

For a class 6 felonyMin 6 monthsMax 1.5 yrs

Misdemeanors are also given jail time in accordance with their class according to the

following chart

1. For a class 1 misdemeanor, six months.

2. For a class 2 misdemeanor, four months.

3. For a class 3 misdemeanor, thirty days.

Similarly, punishments for crimes consisting of fines are based off of the seriousness ofthe crime, and are determined by the court at your hearing. Our laws limit fines to certainamounts:

1. Felonies may not exceed a fine of $150,000

2. Class 1 misdemeanors may not exceed $2,500

3. Class 2 misdemeanors may not exceed $750

4. Class 3 misdemeanors may not exceed $500


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Please note that the punishment for your crime depends on your criminal record, orwhether you've committed any crimes in the past. If you have a clean record [no crimesin your past] then you'll get an easier sentence. If you have a record [there are crimes inyour past] then you'll likely get a more serious sentence.

Another important difference between a felony and a misdemeanor conviction is theimpact that they will have on a person's future. When that person makes it out of jail andtries to get a job, a felony conviction will likely continue to haunt the criminal. Mostemployers want to know about all felony convictions - so if you are ever convicted of anyfelony, you would have to tell your employer. If you had just a misdemeanor, you wouldhave some more privacy in this respect

Definition of Torts

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