Essay About P Intent Dual Intent And D1

Intentional Torts.
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Intentional TortsAngry Boys Frequently Initiate Terribly Tense ConflictsDefinition    A voluntary act committed with wrongful intent that causes someone to suffer some legally forbidden harm. General Elements: Violent Idiots Always Create HavocVoluntary ActA voluntary act is an act initiated by the actor’s chosen bodily movements and is not controlled by the bodily movements of another person or thing. Wrongful IntentDesire to cause a forbidden harm, or knowledge to a substantial certainty that some forbidden harm will result from the act. Intent Policy ExceptionsProactive MistakeTransferred IntentProblem PeopleGenerallyMust desire/know the harm caused by their conductBut dont need to have intended that actual harm will have resultedExamplesAdults with Mental IncapacitiesChildrenCase: White v. MunizPolicyRecovery of costsEncouraging better caretakers CausationBut-for the act, there would not be the harm the actor is supposed to be liable for Forbidden Harm: Defined by Each ITSpecific Intentional TortsHarms to PersonsBattery: 1)voluntary and 2) intentional act 3) that causes 4) harmful or offensive contact 5) with another personVoluntary affirmative actIncludes directing other peopleD telling masked men to attack P Intent Dual Intent- to act and act was harmful or offensive (majority)Single intent- to act only just contact (minority)Need not be malicious or hostileA practical joke or horseplayWelder puffing oxygen at Ps crotch Know to a substantial certainty result will occurMental incapacities or children may make intent more difficult to proveTransferrable IntentIntending to harm person A, but instead harm person B, still liable for batteryHall: A shoots at youth brandishing gun, misses, and hits neighborIntent will transfer to any of the other intentional torts to complete the battery (FI, assault, trespass to land & chattels but not IIED)Proactive MistakeDoes not intend to commit harmful act, but will be treated as such b/c of failure to investigatePolicy: discourage dangerous, rash acts; encourage investigationHunter who mistakenly shoots a dog thinking its a wolf Causation / VolitionHarmful or Offensive ContactHarmful =  pain or physiological change to a persons bodyOffensiveReasonable person in the plaintiffs positionNature of act (e.g. spitting)Context Takes into account plaintiffs known sensitivities. To a person Closely associated to the body (e.g. knocking off a persons hat)The persons immediate sphere of influence.  (e.g. slapping a horse that P is on.)Interest protected: Protects bodily integrity, moral sphere of influence around the bodyPolicy goal of preventing: Retribution between parties, revengeBreaches of the peaceParties from engaging in aggressive acts that invite violent responseDeRouen:  Um, My Groin is On FireDidn’t have to know that the fire would result to satisfy battery, or intend injury, just needed to intend (that is, desire, or have KSC) to cause offensive bodily contact (O2 hitting co-worker’s body).  Limiting Factor:  Statute of LimitationsGives people freedom from fear of lawsuits many years after the factMemory is a factor:  evidence dries upPs could wait for a precedent case and then file suit to capitalize on long past incidentDickens v. Puryear:  Yeah, but He Told Me ToLiable for batter for cutting P’s hair and because he directed Mask men to beat P up. Masked men were extension of D, same way as D would be liable for TL if dog entered another’s property. (conspiracy between him and masked men too)Assault: 1) voluntary and 2) intentional act 3) that causes 4) another person 5) to be placed in a reasonable apprehension of battery or false imprisonmentvoluntaryintentional actcausingReasonable Apprehensionintentionally aggressive conduct that may cause someone to react violentlyawareness of an impending contact or restraintthreat must be imminent (future threats of harm =/= assault)does not require feargoes back to policy protection of dignity:  violation of your peace of mind is violation of your dignityacts or gestures (possibly accompanied by words) that would cause a reasonable person to believe contact or restraint is imminent;  usually must be an overt movement from Dof battery or false imprisonmentKnown Sensitivity ExceptionEven if a reasonable person wouldn’t be afraid of a given thing/act, if D exploits D’s particular fear, they have a right to protect their rightsD, knowing that P has severe arachnophobia, puts a very plastic tarantula on P’s deskIIED: 1) extreme and outrageous conduct 2)which intentionally or recklessly 3) causes 4) severe emotional distressOutrageous, extreme conductTestsWould cause a reasonable person to say, “Outrageous!” Utterly intolerable in civilized societyAtrociousBeyond bounds of decencyThe more outrageous the conduct, the more it can go to confirm ED.  FactorsRelationship between partiesAbuse of powerPotential for exploitationD’s powerP’s vulnerabilityIs P in extremely susceptible state?D’s motiveMaliceExploitation of PContext:  time and placeCase: BrandonIntentional or Reckless conductRecklessness would mean a lower level of intent – less purposeful than intentionalknowledge to high probability that actions will cause severe EDthis is lower standard than KSCnecessary because insults are subjective; hurling an insult is not as clear-cut as hurling a rockNO transferred intentE.g.:  wife is in back room of store, sees robber assault her husband.  Robber has no intent towards the wife (doesn’t know she’s there), but there is reckless infliction of ED.  Relationship between robber’s intended victim and inadvertent ED sufferer (bystander wife) is key:  the closer they are (husband/wife) the greater the chance of ED.  Immediacy (physical proximity) of unintended victim is also key.Bystander:  witnesses harm to another, not at risk of physical harm himself (IIED + scene of crime)For strangers: a bystander not related to D’s direct victim must prove that he (bystander) was Present at the sceneSuffered physical harm from the experienceD has KSC that a bystander likely would be presentCausesEmotional Distress so severe that no reasonable person could be expected to endure itPolicy:ProblemsInjury is subjectiveHard to proveRisk of fraud is higher than with, say, a broken legFinancial liability could far outweigh faultPossible “floodgates” of litigationDefinition as “severe” “extreme” and outrageous” is meant to address policy concerns, limit class of Ps and DsUtility – fills in gap in tort of Assault.  In IIED, threat itself can be devastating enough to support cause of actionProofsPhysical manifestations of EDMedical testimony (psychiatrists, experts, etc.)Lay Testimony (family and friends who can testify to a change in P as a result of the incident)The more outrageous the conduct, the more it goes to prove ED; outrageousness itself can be proof of EDP exhibits change in behavior, interruption of normal activities demarcated by the eventFalse Imprisonment: 1) voluntary and 2) intentional act 3) that causes 4) an actual or reasonably apparent confinement or restraintVoluntaryHypo: P consents to ride in D’s car. After P enters the car, D locks the doors for safety. D and P then argue. P asks to get out and D refuses to unlock the doors. Failure to release P is FI.Intentional act            Proactive mistakeTransferred intent CausesP’s actual or reasonably apparent confinement or restraint (P usually required to have knowledge of this)TestsPhysical boundariesPhysical restraintImminent physical threats (body/property)Authority ImmobilizationE.g.  P goes camping with buddies to remote national park.  He has two broken legs in hip casts, and crutches.  Buddies take off in the night and leave P, taking his crutches with them.  FI, since P is immobilized (can only crawl, not a reasonable mode of transport) and isolated (in middle of national parkIsolationTests for confinement or restraint: a person is not confined or retrained when she has a reasonable means of escape. When is an escape reasonable?No/little risk of harm        “leave and I’ll kill your mother!”Would be expected if no/little risk to another personNo little risk of humiliationNo little risk to valued propertyRestricted access is NOT confinementA prevents B from entering home. B still has access to the outside worldCockrell: P was suspected of shoplifting and taken into a back room where security made him undress and search him. P did not have a reasonable means of escape and D did not use reasonable means to investigate (asking to drop pants and remove bandage was excessive)Shopkeeper’s privelege: 1) reasonable belief 2) reasonable meansPolicy: This jurisdiction placed burden on P because they wanted to protect businessesHarms against propertyTrespass to land: 1) voluntary and 2) intentional act 3) that causes a 4) tangible entry onto real property of anotherCase: Creel v. Crim: Lovelady direct Creel to cut down trees on land that turned out were Crim’s.Indemnity: Where D1 (Lovelady) must fully reimburse D2 (creel) for all damages D2 must pay to P(Crim)Culpable D1 must full reimburse inculpable D2VoluntaryCreel: Voluntary entered property despite Lovelady directing himIntentional actWatch for Proactive mistakeCreel: Lovelady directed Creel to proactively, but mistakenly enter Crim’s land w/o consent, both are treated as having the intent to trespassCausationBut-for causation: Creel: but for Lovelady’s order to cut down trees, Creel would not have enteredTangible entryDirect challenge to right of propertyGenerally trespass requires entry of tangible thing (person, animal, or propertyProtects exclusive possession rights of propertyException: Environmental TrespassBradley v. Am. Smelting (You got Smelt on My land!): Particle emissions blew over to land and accumulated.Tangible effect 🡺 accumulation of particlesP may recover if 1) D intentionally spreads pollution on P’s land 2) the pollution tangibly accumulates 3) causes 4) foreseeable and substantial damage to landMinority rule and possibly the start of a new trendNuisance: protecting use and enjoyment rights (noise, odor, light, etc.)Requires substantial and unreasonable interference w/ enjoymentPHYSICAL HARM NOT REQUIREDMay include: D entering, D pushing unculpable A, causing an object to enter, remaining on property beyond allotted time, exceeding consent, failure to remove things left on propertyOnto real propertySurface area (home, yard, roof, etc.)Airspace within the “immediate reaches” of the grounds (used and occupied by owner/possessor) < 1000 ftSubterranean ground space used & occupied by owner/possessor (well and aqueduct)of anotherTrespass claim may be asserted by: Owners of real property Lawful possessors of real property (renters and leasees)Trespass To Chattels (personal property/slight interference) Trespass to Chattels: 1) a voluntary and 2) intentional act 3)that causes 4) an intermeddling with or dispossession 5)of personal property of anotherVoluntary actIntentCausation Intermeddling or dispossessionOf anotherIntermeddlingTypes:The impairment of condition, quality, or value of property that causes P actual harmHYPO: D throws paint on P’s 50k car; P pays 2k to remove paintValue loss by out of pocket expense to repair carDeprivation of use of the property for a substantial period of time which causes P act which CAUSES P ACTUAL HARMHYPO: P loans his lawnmower to D for a day. D keeps it for an extra week despite P asking for it backConsequential damages may be rewardedThe infliction of bodily harm to P or anything in which P has protected interest which causes P actual harmHYPO: D steals a bottle of P’s drugs. Lack of medication causes P to faint and hit his headDamagesP must prove ACTUAL damagesDamages typically are measured by the reduced value of P’s propertyOther measures: Rental value, repair cost (up to current value of property)DispossessionAn exercise of dominion and control over property that excludes the rights of others to own or possess the propertyE.g: D deliberately but mistakenly takes P’s coat; D discovers the mistake an hour later and returns it to PD had the intent to take and keep it even if it was a proactive mistake. D would defend property if P came after him.Effect:P may recover nominal damages without proof of actual harmIntermeddling🡸==============🡺DispossessionCASE: Compuserve (stop Sending me SPAM!): Cyber sent CS’s customers massive amounts of spam hindering their servers and memory. CS implemented screening software to combat problem but customers still canceled. CS won on trespass to chattel claimAccumulation of spam created negative effect, Intermeddling occurred because there was impairment and a deprivation of useIMPORTANT: FACTS SHOW A DIRECT HARM TO PROPERTY WHERE HAMIDI (6 EMAILS) DID NOTConversion (serious interference and entitled to full value or forsale of property)Conversion is a 1) voluntary 2)intentional act 3)that causes the actor 4) to exercise dominion and control over 5)another’s property such that the other suffers a serious interference with property.VoluntaryIntentCausationDominion and control resulting in serious interference with personal property of anotherSerious interference        Factors (1-3 D’s actions; 3-6 P’s)Extent and duration of Ds exercise of dominion and control (short duration could be TC)D’s intent to assert a right in fact inconsistent with the other’s right of controlD’s good faith?Extent and duration of resulting interference with other’s right to controlHarm done to the chattel (has to be damaged beyond all repair)Inconvenience and expense caused to PPrivileged Defenses: Justify D’s conduct and P may not recoverThe Needy Can Reasonably Stop Dastardly DeedsConsent1)actual or reasonably apparent 2)voluntary choice 3)to submit to the conduct of anotherActual ChoiceSubjective standard that requires a KSC of the conduct and its consequencesVolitionP must choose using her own free will and MUST NOT be coerced or deceivedMeans of ExpressionSubjective consent may be communicated by: Words, writing, or actions. Consenting to surgery, and then being unhappy with results is still consentMay also be communicated by an authorized representativeGuardianship: Mother signing consent to child’s surgeryReasonably Apparent Choice:Objective standardSilence or inaction may create a reasonable appearance of consentKissing a girl while at lover’s laneActs in context may create a reasonable appearance of consentWaiting in line for flu shot but got in line for tetanus shotConsent may be implied by community norms or customsDoctor gives patient w/ severe cuts antibiotic injection Scope: D’s conduct must fall within the scope P’s consent. If D’s actions exceed P’s consent 🡺 privilege fails. Factors include:Time: Open house from 1-4 and D comes at 7: No ConsentPlace: Entering a room that says “Employee only.”Person: Getting a massage from an unlicensed person after switchType/Purpose of Conduct: Biting Mike’s ear during a boxing match. Consented to fighting, but no purpose of biting.Hellregel (Horseplay/Neck): Friends grabbed a P attempting to throw him in lake and P became seriously injured. P desired to engage in horseplay (sub.) and P’s conduct would cause  reasonable person to believe P consented to horseplay (obj.). Person Engaging in horseplay accept risks of accidental injury therein. Nullified ConsentP giving consent can be nullified if given through:Fraud/misrepresentationHogan (STD-Sex): Wife consented to sex, but not to be infected.D’s knowledge of P’s incapacity and Physical DuressReavis (Bad Dentist!): D-Dentist fondles and has sex with P-assistant for many years. Took advantage of her economic situation(economic duress) also psychological problem.Was there an abnormality? And did D know about it? If he did🡺 liability and no consentConduct Violating public policyConsent to a shootout and someone gets shot (consent nullified)Having “consensual sex” with a minorReasonableness Privileges: 1)D must have a reasonable belief her rights are in imminent danger 2) D must use reasonable force to defend her rightsSelf DefenseA person who 1)reasonably believes an act will cause her imminent bodily harm, offensive contact, or restraint, may use 2)reasonable force to defend herself against that actReasonable beliefMistakeBelief may be reasonable even if mistakenHYPO: “Give me all your money or I’ll kill you” as P reaches in pocket, but P does not have a gunContext: Provocative words and actsReasonable belief is assessed by all surrounding circumstances; Words alone generally do not create a reasonable beliefBradley (get out of my café!): Screaming drunk threatened old lady and she shot him (he was big, previously threatened her, and had had history of violence)Instigation & AbandonmentInstigators do not have self-defense privilege unless he clearly abandons the aggressionJuarez (Dump a beer on you while you sleep): Deans started fight and P defended himself. Moving back after P jumped from bed is not abandonmentRetreatMajority: the possibility of safe retreat does not prevent a reasonable belief in the need for a defense. There is no duty to retreat from any level of force especially in one’s homeMinority: One must retreat from deadly force if the retreat can be accomplished w/o significant riskReasonable ForceProportionality TestForce is reasonable if it proportional to the force it seeks to stopFactors: Age, strength, reputation for violence, special skills, weaponsDefense of OthersA person may use 1) reasonable force to defend others against an act that she 2) reasonably believes will cause others imminent bodily harm, offensive contact, or restraintReasonable beliefSeeing a student pull a “gun” on another, and teacher shoots student. Gun was fake.Contrary view:Requires that the others posses right to self-defense. If other is a tortfeasor🡺 Intervener may be liable even if he had a reasonable belief. Forces people to think before acting to save othersPolicy: Do we want to encourage people to help others?Reasonable forceDefense of Real & Personal PropertyA person may use 1)reasonable force to defend her real property or personal property against intrusion or interference if she 2)reasonably believes such an intrusion or interference is imminent or ongoingReasonable BeliefRequest/InquiryHypo: D sees P take his luggage, D sneaks up behind P and snatches it, ripping it in the process.Generally, One must request noninterference or return if it is reasonable to do so. Want to encourage inquiry. Do not want invasion of space just to get propertyReasonable forceNon-deadly force:Hypo: D restrains from getting her purse stolen and P falls breaking his ankleNon-deadly force is reasonable if proportionate under the circumstances.Deadly ForceDeadly force is generally unreasonable unless there is a breach to inhabited dwelling or exposes a person to serious bodily harm        P trespasses on property and D shoots in air to scare him offMay use minimal amount of force in certain circumstancesAutomatic devices and trapsKatko (Shotgun trap to the leg): D setup a shotgun trap to defend old barn.Generally, such devices are not permissible unless D could have used the same force in personExceptions if force is moderate or controllable: trained Dogs, barbed wire?Recapture of Personal PropertySelf HelpAn ordinary citizen has a right of recapture if she 1) actually has a need to do so 2)correctly directs her effort against the actual possessor and 3) proceeds in hot pursuit of the takerReasonable forceRequest first if possibleForce proportional to resistance (recapture of property can turn into right of self-defense if person resists and uses force)JudicialReplevin Action (Law prefers this)If P can identify the chattel, she may sue to recover it, under the following procedureP posts bond (compensation for D if P is wrong)Preliminary hearing heldSherriff seizes property or d delivers into courtOwnership adjudicatedShopkeepers PrivilegeReasonable belief (probable cause)Reasonable force usedNecessityPerson must 1)reasonably believe she or others face an imminent risk of serious harm and she must use 2)reasonable force to prevent that harmPublic NecessityWhen many people are exposed to an imminent danger of serious bodily harm or property damageSurocco v. Geary: D explodes P’s house to save neighborhood from fireBeneficiariesPublic officials or private citizensEffectD receives complete immunity; P barred Burning the home, D would not be liableWhat about the people who suffer the detriment?Private NecessityWhen privileged holder is exposed to an imminent danger of serious bodily harm or property damageCases:Vincent (Screw your dock!): D moored boat at expense of the dock. Has right to keep boat there, but must pay resulting damages of the dock.Policy: unjustly enriched by keeping boat at expense of another’s propertyEilers (Cult!!): Did not have to FI (P), there were other reasonable, less invasive alternatives (calling cops, institutionalizing him, counseling)Rossi: (Run from dog!): Had reasonable belief that it was necessary to trespass onto P’s land avoid to avoid dogEffect:D receives partial immunity but P may recover damagesNegligenceIs unreasonable conduct that causes another person harm (presumptively lawful conduct that P may prove is wrong)Mental stateConduct that imposes upon others a 1)foreseeable and 2)unreasonable risk of harmForseeable < KSCD’s knowledge of risk may be 1)actual/subjective or 2)constructive/objectiveElements (Do Be Careful Dummy)DutyLegal relationship that obligates D to exercise some care toward PBreachD has violated the specific standard of care required by dutyCausationD’s breach was factual and proximate cause of P’s harmDamagesP’s harm resulted in actual damagesDUTYOrdinary Negligence: negligence of most ordinary citizens under the CL of tortsDuty: People who do not act owe no duty to care for othersYania (Ditch and drown): P-decedent jumped into water filled ditch on D’s property after D, property owner, requests assistance. D did not have a duty to help him.1. Did D commit the type of act that carries a duty?2. Did P and P’s harm fall within the scope of D’s duty?3. Do any policy limits or exceptions apply?STEP 1: Identity acts creating a DUTY (3 Rs: Risk, Relationship, Reliance)1: RISKOne who creates and imposes risks on others generally owes a duty to exercise reasonable careCreating riskDriving at high speed in a 35mph zone and striking a pedestrianFailure to prevent or reduce riskInstalling cameras but not a doorman. Mugger robs woman. Camera did not create the risk, but D failed to reduce existing risk by hiring a doormanFarwell (Driving around while beaten up): Teen boy dies he is beaten by attackers and his friend drives him around all night, leaving him in garage afterward.Failure to prevent or reduce risk, unless D provoked attack.RELATIONSHIPSDef: Exists when one party has 1) knowledge of and control over the risks of the relation 2) and the other party depends on her protectionRule: The party in control owes a duty to the dependent party or to others to exercise reasonable careE.g.: Doctor/patient;innkeeper/guest;parent/child;guardian/charge;landowner;inviteeFarwell: “Co-adventurer” relationship which required D to provide reasonable aid defending P or caring for him RELIANCERule: One who undertakes to aid another already at risk, but worsens the other’s position, owes a duty to exercise reasonable careWorsening occurs when:Induces the other’s detrimental relianceHYPO: D throws a rope to P in water, P relies on D and drowns swimming toward ropePreventing other assistanceFarwell: Worsened P’s condition by driving him around instead of dropping him at hospital or leaving him aloneSTEP 2: Show P’s Harm is w/in Duty’s ScopeRISKIs P’s harm the type that could be reasonably forseen? USE STOP-THE-DVD ANALYSIS (SLIDE 6; WEEK 6)McCollum: (OZZY!): Teen committed suicide while listening to Ozzy. COURTS ADOPT A HIGH FORSEEABILITY STANDARD and his suicide was not highly foreseeable; thus harm was not w/in scopeRELATIONSHIPIs P’s harm the type that her relational partner, would be expected to prevent?HYPO: Student is assaulted at an off-campus party and brings negligence claim against school. There is a relationship (school-student), but injury occurred off campus at unsponsored even which falls beyond scope of College’s duty.RELIANCEIs P’s harm the type that D sought to prevent by her undertaking?HYPO: Saving old man from bus, then man gets robbed. Made no effort to protect man from assault and there is no evidence D enhanced or created the riskSTEP 3: SEARCH FOR POLICY LIMITS (2 TYPES)General (Case-by-case) Multifactor analysisPrinciple: Public policy may limit or eliminate the duty in extraordinary cases with great public importancePolicy considerations: Courts Frequently Limit Duties to Minimize Borderline CasesCertainty of Injury (whether she suffered a cognizable injury)Clarity of causal connection (closeness of D’s act and P’s harm)D’s moral blameworthinessBurden on D and societyDeterrenceLoss spreading Other (free speech)Mcollum: Imposing duty on CBS and OZZY would impose too heavy a burden on their and society’s 1st amendment free speech rightsRice (how-to hitman): Criminal purpose decreased free speech value and how-to aspects heightened forseeability of harm. DUTY OWED and D held liable.Specific (predetermined) limited duty rules: Special Actors: Public Offenders Often Get AmnestyOWNERS/OCCUPIERS OF LAND (O/O) AdultsActivities: An o/o who affirmatively conducts an activity on her property has a duty to exercise reasonable care for foreseeable entrantsChildren: Attractive Nuisance DoctrineRule: o/o owes a duty of reasonable care toward a child on her property if the child was injured by an artificial condition that lured her onto propertyObvious/Common Risk limit: o/o owes no duty of care to a child if the child is injured by obvious or common danger that a reasonable child of similar age, intelligence, experience, and maturity would have recognized and avoidedRST 2d § 339: o/o owes a duty of reasonable care toward a trespassing child on her property if the trespass was foreseeable the child was injured by an nonobvious artificial condition that exposed her to a foreseeable risk of death or serious bodily harm (removes LURE)Conditions: Duty for conditions on her property is determined by 1 of 3 approaches:3 tiered entrant classification system (ECS)Trespasser: A person who enters another’s property w/o lawful consentLimited Care Owed: the o/o may not willfully harm a trespasserLeasee: a person who enters another’s property with lawful consent for a social or unilateral purposeLimited care owed: the o/o may not willfully harm a licenseeThe o/o must warn of known, nonobvious dangersInvitee: a person who enters another property for a mutual business purpose; specifically to provide a present or prospective economic benefit to the o/o in exchange for the right to enter OR a person who enters another’s property according to a public invitationFULL CARE OWNED: O/o must exercise reasonable care toward an inviteeCase: Ruvacalba (Kid falls from stairs): Mother and Child went to visit father at work. Kid falls from stairs due to defective hand-rail. No invitee status(bldg not open to public & boss does not sell merchandise).  Assuming licensee status 🡺 no breach because D did not know about stairwell. P’s lawyer messed up.2-tiered ECSDuty still depends on P’s entrant classificationLicensee class eliminated. P’s either trespassers (no consent) or invitees (consent)Trespassers: Duty not to be willfully harmedInvitees: Duty of reasonable careCase by case multifactor analysis (eliminates predetermines duties & duty limitationsNew approach: Whether o/o owes a duty depends on unique facts and compelling policies of each casePolicy considerations (Identical to McCollum)Criticism: Unpredictability, influx of new cases, burden on victim, etc.Rowland (Faucet-Tendon damage): Guest at host’s home’s sink broke and injured P. D did not warn or fix handle. Revered for P. Entrant status is irrelevant because all entrants are entitled to the same level of care. Landmark case that abandoned ECS because difficult to say what KNOWN DANGER would be under licensee status.Criminal Activity: Delta Tau: P was sexually assaulted by alumnus during a frat party.Prior similar incidents (PSI): (combined with specific harm): A duty to protect against criminal activity arises only if prior similar acts have been committed on or near the property. HIGH FORSEEABILTY REQUIRED; LIMITED DUTY: 2 prior incidents of assault.Totality of circumstances (combined with balancing test): A duty to protect against criminal activity arises if that activity was foreseeable in light of all the surrounding circumstances including prior similar incidents and the landowner’s and society’s burden of preventing such activity. ORDINARY FORSEEABILITY SUFFICERS: ORDINARY DUTYProfessionals: A professional owes her client a duty of reasonable care to protect the client against the foreseeable risks of the professional’s conduct (NO LIMITS: DOMINIANT PARTY OWES DUTY TO SMALLER PARTY)Doctors- Non-clients and 3rd party duties may be full or limited: Rule: A doctor owes a nonclient a duty of reasonable care if the doctor’s professional conduct exposed the nonclient to a foreseeable risk of physical harm.PsychotherapistRule: A psychotherapist owes a duty to protect a nonclient if her patient is either a named or readily identifiable (highly foreseeable) victim of that threat (the more serious the physical threat, the more court expands risk)Tarasoff (landmark case): Student was killed by a university outpatient after the outpatient’s therapist failed to disclose the outpatient’s threat to kill the studentFactors: (always analyze this)Type of HarmForseeabilityExtent of burdenPolicyCA requires only a duty to warn the victim and the police (harder to find liability)Public Agencies (Law enforcement)MethodologyDoes D enjoy Sovereign Immunity? Yes 🡺 Case is barredNo 🡺 Proceed to DutyDoes D owe P a duty of care?No 🡺 case is barredYes 🡺 proceed to breachSovereign Immunity against Intentional Torts (old rule: King can do no wrong)People committing IT are rogue actorsGenerally, No Immunity for Negligence (should be responsible for carelessness of its agentsDiscretionary (Policy or Planning) Function Exception: (balance of power- respect policy decisions made by branch of government) Public Agencies are immune from liability where the acts implement the agency’s discretionary functionsDiscretionary functions: policy or planning decision that the agency is legally entitled to makeDeviations or failure to promote policy or planning decisions = no immunityHarry (Sprinklers over Hose): Use of hoses instead of sprinklers was individualized emergency decision that violated accepted firefighting practice and posed a narrow, moderate, and isolated danger to few peopleFactors for Determining Discretionary FunctionDegree of Deliberation (>deliberation = likely a policy or planning decision)Breadth of Decision and # of people affectedHigh Department granted immunity for building a road next to a cliff and rock falls on car: Calculated policy decision that affects entire publicFailure of HD EE to remove rocks and car hits rocks. 1)Violation of Job responsibilities 2)narrow and isolated danger created 3)to a small segment of publicSocial Utility of decisionBurden of PrecautionViolation of Internal policy (Violation = No immunity)LIMITED DUTYActsWhere Public agency imposes a foreseeable risk on citizens 🡺 duty of care owed to citizensHarry: Siphoned away water from sprinklers that increased risk of more buildings burning downOmissionsNo Duty: There is no preexisting special relationship between a public agency and any particular citizen: Riss (crazy/Love)Policy against dutyBalance of Power: Courts lack political power to control other gov’t branchesExpertise: Courts lack expertise to set policy for other gov’t branchesFloodgates: other branches of gov’t must either relocate or raise taxesUndertaking + Reliance: Where a public agency undertakes to aid a specific citizen and the citizen justifiably relies on that undertaking, the agency owes that citizen a duty of careCuffy (Violent tenants): No duty! 1) son was not aware of police’s promise 2) family members chose to remain in home after police failed to arriveSpecial Harms (Administrative Problems)Policy ConcernsDifficulty of proofPotential for fraudFloodgatesDisproportion between liability and culpabilityPure emotional distress: Emotional injury not caused by physical harmEasy cases where Duty is clearly owedPhysical injury causes Emotional distress (no pets)Death: Mishandling of bodies; miscommunication of deathHard cases: Duty questionable or limited (CA and most jurisdictionsDirect Victims: P’s who are directly exposed to D’s negligence and (generally) fear for their own safetyTests for Direct Victim DutyPhysical Impact: D owes a duty of care to P if D’s negligence causes a physical impact on P’s body (smoke blown on you, droplets of water)Physical Zone of Danger: D owes a duty of care to P if D’s negligence exposes P to a forseeable risk of physical harmPhysical Manifestation: D owes a duty of care to P if D’s negligence causes P to suffer emotional distress that is physically manifested by P’s behaviorDiagnosable manifestations that may need to be confirmedSpecial Relationships or undertaking: Dr’s relational duty of care may extend to patient’s physical AND emotional wellbeingBurgess (Triangular): Dr delays c-section and baby gets brain damage. Given triangular relationship, emotionally charged nature of pregnancy, Dr owed a duty to protect Mom from ED in delivery of her child (P’s harm w/in scope)Bystanders: P’s who witnesses another being exposed to D’s negligence and fear for the safety of the otherTests for BystanderMajority: Physical Zone of Danger: D owes a duty to a bystander if D’s negligence exposes the bystander to a forseeable risk of physical harm.Clohessy: Mother watches as her Kid is hit by a car and witness him die. Substantial Minority: (CA)Dillon-Forseeability: D owes a duty to a bystander if D’s negligence exposes bystander to a forseeable risk of emotional harm. Factors include:P is located at the scene of the incident (spatial)P suffers a direct emotional impact from contemporaneous observance of the incident (temporal)P and victim are closely related-(showing up after incident can be liable for ED. There is a heightened sense of experience)Small Minority: Multi-element-Thing test: Must establish ALL: (harder test)P is present at the sceneP then aware of the incident (or aftermath= clohessy)P and victim are closely relatedVictim’s injury is serious physical harm or deathP Suffers serious emotional distress (implied in Dillon)BREACH: is D’s failure to meet the standard of care. D breaches the when failing to act like a reasonably prudent person acting under the same or similar circumstances.1. What is D’s Standard of care?2. Did D breach the standard of care by failing to act like a reasonable person under same or similar circumstances?