Wednesday, December 21, 2005

Outline - Torts - X - Medical Malpractice

Torts (2005 Fall)


  1. Types
    1. Negligence in care of patient
    2. Negligence in failing to obtain informed consent
      1. Supersedes former preference for battery, where defendant can invoke privilege of consent.
      2. Matthies v. Mastromonaco (hip surgery) – Material risk must be described.
  2. Expert Testimony
    1. Establishes
      1. Standard of care
      2. Whether or not physician departed from standard
    2. Established by
      1. Currency with customs in field of practice
      2. Before Sheely, field of practice in same or similar locality as locus of cause of action

Outline - Torts - IX - Products Liability

Torts (2005 Fall)


  1. Three Theories
    1. Warranty (breach of implied warranty of fitness and merchantability) - contract theory
      1. Strict liability on retailer [McCabe]
      2. Modern rule in UCC offers three alternatives
        1. Family or household member of buyer
        2. Reasonable consumer
        3. Bystander
    2. Negligence - tort theory [McPherson - Duty owned to foreseeable persons; privity rules modified]
    3. Products Liability under Second restatement § 402A
  2. Second Restatement § 402A
    1. Defendant is in the
      1. Business of selling,
      2. Products for use or consumption, and
      3. The product is expected to and does reach consumer without substantial change
    2. The product is in a defective condition. There are three alternative types of defects. Plaintiff must prove one of the following:
      1. Manufacturing
      2. Design
      3. Inadequate warning
    3. The product is unreasonably dangerous to the user/consumer or to her property. (No longer have to prove this.)
    4. The defect results in
      1. Physical harm to the
      2. User or consumer, and bystanders
  3. Product Defects - Plaintiff must prove at least one of the following:
    1. Manufacturing
      1. Strict liability
      2. Seller is responsible even if the defect was introduced somewhere up the supply chain. [Welge v. Planters]
    2. Design - Use one of two tests
      1. Consumer expectation test [Soule]

        A product is defective if it“fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.”

        1. The manufacturer’s product failed to perform as safely as an ordinary consumer would expect.
        2. The defect existed when the product left the manufacturer’s possession.
        3. The defect was a “legal cause” of plaintiff’s “enhanced injury”.
        4. The product was used in a reasonably foreseeable manner.


      2. Risk utility test [Barker]

        A design is defective “if through hindsight the jury determines that the product’s design embodies ‘excessive preventable danger,’” or, if the jury finds that the risk of danger inherent in the challenged design “outweighs the benefits of such design.”

        Factors to consider:

        1. Gravity of danger posed by the challenged design
        2. The likelihood that such danger would occur
        3. The mechanical feasibility of a safer alternative design (also known as a reasonable alternative design, or RAD) [Camacho, leg guards on motorcycle]
        4. The financial cost of an improved design
        5. The adverse consequences to the product and to the consumer that would result from an alternative design
      3. Barker - Plaintiffs offered two tests
      4. Soule - Limit consumer expectation test to obvious violations of minimum safety, apply risk utility test to crashworthiness cases.
      5. Pruitt - Defective air bag deployment not a common experience, so use risk utility test.
      6. Camacho - Crashworthiness doctrine applies “where a manufacturing or design defect, though not the cause of the accident, caused or enhanced the injuries”
    3. Inadequate Warning

      These come under a negligence regime. The following factors need to be considered:

      1. When must a manufacturer give a warning?

        A manufacturer must give a warning when it knows or should have known of a risk of harm to a substantial number of the population that is likely to encounter the product. (Majority of jurisdictions use hindsight rule; MA adopts “state of the art” rule in Vassallo.)

        Exception: Learned Intermediary Doctrine (e.g., pharmaceuticals) shields manufacturer except (i) in cases of mass immunization, (ii) where the FDA mandates direct warnings and (iii) where there is marketing directed at consumers.

        BUT: “The Pill” treated differently than other pharmaceuticals.

      2. To whom must a warning be given?

        Purchasers, users, and “persons who foreseeably will be injured or endangered by use or exposure to the product”

      3. Is the content of the warning adequate?

        Manufacturer must provide a written warning conveying reasonable notice of the (i) nature, (ii) gravity, and (iii) likelihood of known or knowable side effects.

        Hood – Plaintiff removed safety guards from saw blade and was injured.

      4. Did the lack of warning cause plaintiff's injuries?
  4. Defenses
    1. Comparative Fault [GM v. Sanchez – mis-shifted gear]
    2. Royer v. Catholic Medical Center – Where seller is primarily engaged in health services, no retailer liability. The service itself may be amenable to negligence.
  5. Contract vs. Tort Damages
    1. Breach of Contract
      1. Expectation damages (loss of the bargain)
      2. Generally, lost profits from loss of a product not recoverable
      3. Generally, no punitive damages
    2. Tort
      1. Compensatory damages (restores victim to position prior to tort)
      2. Compensatory damages may include lost future wages or profits
      3. Possibility of punitive damages (under a higher standard)
      Personal injuries Property damage (other than to product itself) Damage to the product itself Lost profits or benefits
    402A Yes Yes No No
    Disclaimable? No No X X
    Warranty Yes Yes Yes Must Bargain
    Disclaimable No Yes/No Yes Yes

Outline - Torts - VII - Strict Liability

Torts (2005 Fall)


  1. Traditional
    1. Animals
      1. Dangerous animals [Baker v. Snell]
        1. No physical impact required
        2. Strict liability
      2. Tame animals
        1. Negligence
        2. Strict liability if individual known to be dangerous
      3. Exceptions
        1. Zoos
        2. National Parks
    2. Rylands v. Fletcher
      1. If you bring anything on your land which, if it escapes, is likely to do damage, you’re strictly liable.
      2. Blackburn’s three analogies
        1. Escaping cattle which eats a neighbor’s grass or corn
        2. Privy filth which invades neighbor’s cellar
        3. Alkali works makes a neighbor’s habitation unhealthy by fumes and noisome
      3. Cairns: Strict liability for harm resulting from “unnatural use of land”.
    3. Related cases
      1. Losee v. Buchanan on basis that the price of modernization is compromising some rights.
      2. Cities Service claims it is reasonable to insist people pay their own way even in a crowded state.
      3. Turner distinguishes, insists building a reservoir is not “unnatural” use of land in rain-scarce Texas.
      4. Sullivan v. Dunham (majority American rule for blasting cases) – It is better that one man should surrender a particular use of his land than that another should be deprived of the beneficial use of his property altogether.
  2. Modern Strict Liability for Abnormally Dangerous Activities
    1. Elements (Second Restatement § 520)
      1. High degree of risk of harm to person, land, or chattels of others
      2. Likelihood that harm will be great
      3. Inability to eliminate risk by reasonable care
      4. Extent to which activity is uncommon
      5. Inappropriateness of activity to place
      6. Extent to which value to community is outweighed by danger.
    2. Indiana Harbor Belt
      1. Negligence applies in cases involving shipment of abnormally dangerous materials.
      2. Allocative (negligence) vs. distributive (strict liability)
        1. Posner relies on negligence to allocate the loss away from the community and to the several parties involved in the accident.
        2. Strict liability could be used to decide how to distribute the loss among the parties.

Outline - Torts - VII - Transition - Vicarious Liability

Torts (2005 Fall)


Liability that one person assumes for the acts of another. The vicar was responsible for the actions of his charges (respondeat superior).

  1. Direct Liability – An employer may be liable for negligence in hiring an errant employee.
  2. Respondeat Superior
    1. General Rule
      1. An employer is responsible for any actions of any employee that are foreseeable given the employment.
      2. Ira Bushey - Drunken sailor returning from bar to ship in dry dock opens valve, causing ship to list; conduct was foreseeable because sailors are renowned for drinking, and this sailor was returning “home” to the ship.
    2. Fellow Servant Rule – Employees of the same employer may not sue the employer for each other’s negligence under respondeat superior.
  3. Independent Contractors [Petrovich v. Share Health]
    1. General Rule
      1. No vicarious liability for actions of independent contractors.
      2. Except when there is implied or apparent authority conferred on the contractor by the employer.
    2. Apparent Authority
      1. Principal held itself out as employer of independent contractor as employee instead of contractor.
      2. Victim justifiably relied on this relationship.
    3. Imlied Authority – Employer retains right to control manner of work.

Outline - Torts - VI - Affirmative Defenses

Torts (2005 Fall)


  1. Contributory Negligence - consists of acting unreasonably in regard to one's own safety
    1. Elements
      1. Plaintiff negligent toward own safety
      2. Plaintiff's negligence is a substantial factor in her own harm
    2. Contributory negligence is an absolute defense.
    3. Exceptions and limitations
      1. Statutory violation [at least where purpose to protect plaintiff from own inability to appreciate consequences]
      2. Custodial care
      3. [Emergency]
      4. Last Clear Chance – If the defendant realized the contributory negligence and did nothing, the plaintiff could still recover.
    4. Contributory negligence is now a minority rule.
  2. Comparative Fault – Instead of being totally barred from recovery, the plaintiff’s recovery is diminished in proportion to his relative fault.
    1. In General
      1. Defendant must still prove the above elements
      2. What has changed: No longer is contributory negligence an absolute defense; instead, it’s a proportionate defense.
      3. A jurisdiction will have either contributory negligence (total bar) or comparative fault (proportionate bar) but not both.
    2. How does Comparative Negligence work?
      1. Defendant must establish plaintiff’s contributory negligence.
      2. Then, the jury is asked to determine: What percentage of plaintiff’s damages is attributable to plaintiff’s own negligence?

      Formula: Take 100% of plaintiff’s losses, and reduce plaintiff’s damages by the % of plaintiff’s losses attributable to plaintiff’s own negligence.

    3. Two types of comparative fault schemes:
      1. “Pure” [Li v. Yellow Cab]
      2. “Impure” [American Motorcycle Association]
        1. “No greater than” 50%
        2. “Less than” 50%
    4. Multiple Defendants – compare plaintiff’s negligence against the group of others, or against each individual defendant? (Majority combines)
    5. Set-offs
      Party X – 40% at fault, $10,000 damages
      Party Y – 60% at fault, $100,000 damages

      Courts are divided; if insurance is available, usually no set-offs allowed.

      Contribution Rule – permits Defendant #2 to sue in that case or a separate case against Defendant #1.

      Policy argument – Should recover from Defendant #1 if more Defendant #1’s fault; otherwise why are you penalizing Defendant #2 (by causing Defendant #2 to go out of business unfairly)?

    6. Effect upon Joint and Several Liability
      Plaintiff - 30%
      Defendant #1 - 60%
      Defendant #2 - 10%

      Assume a “pure” jurisdiction, and Defendant #1 is insolvent. Which party (Plaintiff or Defendant #2) should bear the risk of insolvency?

  3. Assumption of Risk
    1. Express/Formal (often written)
      1. Procedural - adhesion contract
        1. “Realistic opportunity to bargain?”
        2. Information provided?
        3. Opportunity to ask questions?
        4. Knowing consent?
      2. Substantive
        1. Fairness of the “agreement”
        2. Should contract trump tort duty? Should actors be able to “opt out” of tort system by disclaiming liability?
      3. Dalury – Ski area’s own negligence is neither inherent nor obvious and necessary risk in the sport of skiing.
      4. Hamelin – Equivalent bargaining powers between enterprises legitimize express assumption of risk.
      5. Leon – Release inserted between two irrelevant clauses not sufficiently noticeable.
      6. Krazek – Exculpatory clauses must be clear and definite, and the court will not formulate a requirement for specific “magic words”.
    2. Implied
      1. Elements
        1. Knowledge – Plaintiff subjectively knows, appreciates, and understands risk.
        2. Consent – Plaintiff voluntarily undertakes risk
      2. At common law, this was a complete defense, but that has changed with comparative fault.
      3. Primary implied assumption of risk
        1. Modifies the duty defendant owes plaintiff [Murphy – amusement ride]
        2. Typical of sporting events [Knight v. Jewett]
        3. Firefighter’s rule [Roberts v. Vaughn]
          1. No recovery for professionals
          2. Recovery available for volunteers
      4. Secondary implied assumption of risk
        1. Remains a proportionate affirmative defense in most jurisdictions
        2. Davenport – Comparative fault for continuing to use negligently unlit stairway when options were available

Outline - Torts - V - Negligence

Torts (2005 Fall)


Acting, even if as part of another, lawful act, without due care. [Brown v. Kendall]

Holmes defines negligence as the failure to avoid a foreseeable risk of harm.

In general, negligence consists of breaching the duty to act toward others as a reasonably prudent person would act under the circumstances.

  1. Duty
    1. Misfeasance - When one acts, one should act reasonably under the circumstances.
    2. Nonfeasance
      1. In general – A person has no duty affirmatively to act to aid or assist another. [Harper v. Herman, Sullivan]
      2. Exceptions
        1. Special Relationship
          1. With victim [Farwell]
          2. With actor who harms victim [Tarasoff – Psychiatric patient kills girl]
        2. Actor begins, then discontinues assistance. [Farwell]
        3. Creation of dangerous condition
        4. Victim is helpless and in danger of further harm after defendant’s actions even if non-tortious
        5. Interference with rescue [Soldano]
        6. Duty to report child abuse (many states)
      3. Policy decision to avoid excessive litigation can override special relationship. [Strauss v. Belle Realty Co.]
    3. Other duties


      1. Negligent entrustment [Vince – Grandaunt who buys car for reckless teen is held liable]
      2. Statute creating private right of action [Uhr (scoliosis)]


      1. Contract with another?
        1. Not usually [Moch – low water pressure in hydrant; Strauss v. Belle Realty Co.]
        2. But sometimes [Palka – wall-mounted fan]
      2. Affirmative misrepresentations? [Randi W. – child molester job recommendation; no negligence per se]
      3. Furnish alcohol [Reynolds – Wedding party]
    4. Owners and Occupiers
      1. Common Law
        1. Trespasser
          1. No duty with regard to condition of land
          2. Limited duty from intention or reckless injury
          3. (some jurisdictions) Duty to warn where O/O
            1. knows of dangers from conditions of land; and
            2. knows a specific trespasser is about to encounter the danger
          4. Higher duty for:
            1. Attractive nuisance
            2. Footpath exception
        2. Licensee
          1. No duty to make premises safe [Carter v. Kinney]
          2. Duty to warn where O/O
            1. knows of dangerous condition; and
            2. knows licensee might encounter danger
        3. Invitee
          1. Affirmative duty to make premises reasonably safe
          2. O/O must exercise care to discover unsafe conditions
          3. (some jurisdictions) Duty to warn where O/O
      2. Modern Rule
        1. No distinction between entrants
        2. O/O owes “ordinary due care” to all entrants [Heins – man visiting daughter in hospital slips]
      3. Premises Liability for Criminal Activity – Levels of Foresight [Posecai]
        1. specific harm rule – no duty unless aware of specific, imminent harm
        2. prior similar incidents test – foreseeability established by evidence of previous crimes on or near the premises
        3. totality of the circumstances test – same, with additional factors such as nature, condition, and location of the land
        4. balancing test – foreseeability of harm vs. burden of imposing duty (holding)
    5. Non-Physical Harm

    6. Emotional Harm
      1. Elements [Falzone – Car crash kills husband, comes close to wife]
        1. Reasonable fear of immediate personal injury
        2. Substantial bodily injury or sickness results
      2. Zone of danger [Buckley - Asbestos]
      3. Vulnerable plaintiff can recover if emotional distress is a foreseeable consequence of the negligent act. [Gammon – “Father’s” leg]
      4. Bystander liability [Portee – Child stuck in elevator shaft dies while mother watches helplessly]
        1. Defendant is negligent
        2. Death or serious bodily injury results
        3. Marital or intimate familial relationship between plaintiff and injured
        4. Observation at scene
        5. Resulting severe emotional distress
    7. Economic Harm
      1. Professional services [Nycal]
        1. Accountant has “actual knowledge” of the “limited group” who will rely on the report.
        2. Accountant has “actual knowledge” of the particular financial transaction that such information is designed to influence.
      2. Business interruption – limited foreseeability [People Express]
  2. Breach – Defendant’s behavior compared to standard of care
    1. Reasonably Prudent Person (RPP)
      1. RPP is more objective than each individual’s “best judgment” [Vaughn v. Menlove]
      2. Legislative immunity from criminal liabilities is no bar for tort recovery. [Powell v. Fall – If an enterprise is profitable, it should pay for damages caused. If it is unprofitable but still causes damage, it’s better for society that it goes out of business. (Bramwell)]
      3. Children are to be held instead to a standard of a reasonably prudent child of similar age and/or experience.
      4. Children engaging in adult activities are to be held to an adult RPP standard. [Hunting Hypo]
      5. Common carriers no longer subject to extraordinary care, but reasonable care under the circumstances [Bethel]
      6. Calculus of Risk – If the burden of taking the precaution is higher than the probable (foreseeable) liabilities, then a company may wish to raise prices to “spread the loss” in a primitive form of insurance. [Blyth v. Birmingham Water Works]

        Hand Formula [Carroll Towing]
        B > PL → liability

        B = burden of precaution
        P = probability of accident
        L = liability cost

        Negligence prima facie
        The defendant is liable only if BD < P * L(class of potential P’s) and BP < P * LP.

        Contributory negligence
        Even if defendant is negligent, plaintiff bears the loss if BP < P * LP.

    2. Roles of Judge and Jury

      Holmes – Judges should decide what the standard of care is because of the volume of similar cases they see. [Goodman]

      Cardozo – When a rule has become too confusing from overreach, juries should determine the standard of care. [Pokora]

    3. Custom
      1. As a sword - Departure from customary safety standard is evidence of negligence [Trimarco v. Klein]
      2. As a shield - Just because the defendant has complied with custom, that doesn’t mean he has acted reasonably. [T.J. Hooper, Hand]
    4. Statute
      1. Criminal statutes may be source from which court borrows a standard of conduct. [Martin v. Herzog]
      2. To establish negligence per se, plaintiff must show (elements):
        1. Defendant violated the statute;
        2. Plaintiff is within class of people the statute was designed to protect (statutory purpose);
        3. Injuries of sort the statute was designed to prevent (statutory purpose); and
        4. Defendant’s violation of statute caused plaintiff’s injuries.
      3. Escape hatches
        1. Revise or impute unstated legislative intent. [Tedla v. Ellman]
        2. Revise or rethink statutory purpose by narrowing or expanding the purpose.
          1. Violation of statute (failing to erect barrier around an open shaft) no liability if the statute was intended to protect against a different sort of hazard from that which caused the injury. [De Haen]
          2. Violation of ordinance (leaving car running at gas station) no liability because the ordinance was to prevent fires and not to prevent vehicles from moving. [Di Ponzaio v. Riordan]
        3. Recognized excuses
          1. Necessity
          2. Emergency
          3. Incapacity
        4. Create exceptions and make policy arguments [Rushink v. Gerstheimer - Plaintiff could proceed even though harm was not covered by key in-in-ignition statute's purpose.]
    5. Proof of Negligence
      1. A jury could find enough evidence from fact of broken jars on floor to establish merchant’s negligence. [Negri]
      2. Holmes’ rule of foresight can establish negligence. [Gordon]

        To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it.

      3. Res ipsa loquitur - "The thing speaks for itself."
        1. Rule (Prosser)
          1. The event must be of a kind which doesn’t occur in the absence of someone’s negligence;
          2. It must be caused by an agency or instrumentality within the exclusive control of the defendant; and
          3. It must not have been due to any voluntary action on the part of the plaintiff.
        2. Effects
          1. Inference of negligence permissible (prima facie case established)
          2. Burden of proof shifts to defendant
        3. Byrne v. Boadle - Plaintiff is not bound to show that a barrel could not have fallen from defendant flour dealer’s window without negligence.
        4. McDougald v. Perry - Defendant who had control of spare tire is liable in an accident which, based on common experience and general knowledge, would not have occurred but for his negligence.
        5. Ybarra v. Spangard – Plaintiff who receives unusual injuries while unconscious and in the course of medical treatment may recover from all those defendants who had any control over his body or over instrumentalities which might have caused the injuries, unless defendants can give an explanation of their conduct.
  3. Causation
    1. Actual Cause - “but for” causation
      1. Jury should decide [Stubbs]
      2. Increased chance causation – If a negligent act increases chances of a certain illness, and the illness in fact occurs, then the jury is permitted to infer cause. [Zuchowicz]

      When Actual Cause is Uncertain

      1. Lost opportunity – Plaintiff does not have to prove absolutely certain causation where physician’s malpractice makes it impossible to know what would have happened in absence of negligence. [Alberts v. Schultz]
      2. Joint and several liability
        1. Alternative liability – Where two defendants both act negligently and cause harm to the plaintiff, the burden shifts to the defendants to exculpate themselves. [Summers v. Tice]
        2. Concerted action
        3. Enterprise liability – Where there is industry-wide cooperation in an small industry, all are liable.
        4. Market share liability – Liability is imposed on each manufacturer based on its share of the market. Each manufacturer is severally liable, not jointly. [Hymowitz v. Eli Lilly & Co.]
    2. Proximate Cause - Legal Cause – plaintiff must establish that the breach caused the damage
      1. Tests
        1. Foresight test – Is the harm of the same sort that was risked when defendant breached her duty? [Wagon Mound No. 1] (Possibility – may be sufficient to establish proximate cause)


        2. Directness test - Does the harm flow in an unbroken stream from defendant’s act? [Polemis]
      2. Issues
        1. Type of harm - foresight test [Wagon Mound No. 1]
        2. Manner in which injury occurred - no foresight needed [McLaughlin – unwrapped heat block caused burns]
        3. Extent of injury
          1. No foresight needed
          2. Eggshell skull rule [Benn v. Thomas]
          3. Aggravation of original injury [Wagner – Plaintiff’s crutches slipped while he was recovering from broken leg by defendant]
        4. Rescuers
          1. Normal rescue efforts do not break chain of causation.
          2. Defendant also owes duty of care to rescuers who are injured while reasonably performing ordinary rescue efforts. [Wagner]
        5. Criminal conduct – Intervening criminal conduct does not insulate from liability if that intervening cause was foreseeable, particularly if it was in fact foreseen. [Hines v. Garrett]
        6. Unexpected victim – A victim who is within a foreseeable class is within the scope of risk. [Palsgraf, Kinsman cases]

    Plaintiff must establish both in order to recover.

  4. Damage
    1. Required to have a prima facie case.
    2. Lost opportunity can be recovered on a percentage basis. (not all jurisdictions) [Alberts v. Schultz]

Outline - Torts - IV - Transition - Intent and Liaiblity

Torts (2005 Fall)


Human interaction Acts of God/Nature
Intentional harm (knowledge) Reckless-
Unintentional harm "Unavoidable accident" Acts of Nature
Intentional torts Some intentional torts Negligence Strict liability No liaiblity No liability
  1. Strict Liability – “If you act, and your act causes harm, you pay.”
    1. Harboring wild animals
    2. Product liaiblity
    3. Engaging in especially dangerous activities
  2. Negligence - “If you act, and your act causes harm, and you acted unreasonably under the circumstances, you pay.”
  3. Spectrum of Liability
    “A” Default:
    If you act, and your act causes harm, you are presumptively liable

    Greater liability

    Less liability
    “B” Default:
    Let losses lie where they fall; no duty


Torts (2005 Fall)


  1. “A-Type” Arguments – Incomplete Privilege of Necessity
    1. Moral
      1. “As between two innocents, the one who caused the harm should pay.”
      2. Avoid unjust enrichment
    2. Economic
      1. Incomplete privilege discourages carelessness toward another’s property since defendant pays for harm no matter what.
      2. Keeping the privilege “incomplete” ensures that the defendant will minimize the overall social loss rather than just his own losses.
    3. Social Policy – “We should subsidize dock owners because otherwise people will be discouraged from going into the docking business.”
    4. Administrability
  2. “B-Type” Arguments – Absolute Privilege of Necessity
    1. Moral
      1. Let losses lie where they fall (Holmes)
      2. Liability should follow moral blame or fault. The defendant is not morally blameworthy.
    2. Economic
      1. If we make the defendant pay when it wasn’t morally blameworthy, we will create a disincentive for the defendant to “do the right thing”.
      2. We don’t want to discourage people from indulging in normal activity for fear that any action will result in liability for damage.
    3. Social Policy – “We should subsidize ship owners because otherwise people will be discouraged from going into the shipping business.”
    4. Administrability

Outline - Torts - II - Privileges and Defenses

Torts (2005 Fall)


  1. General Characteristics
    1. Defendant has the burden of proof.
    2. Defenses are usually (but not always) complete.
      1. Complete - self-defense; defense of property; contributory negligence
      2. Incomplete - privilege of necessity; comparative fault
      3. Ordinarily only triggered after establishing prima facie case.

    Complete Defenses

  2. Consent
    1. Condition to consent can overcome defense. [Ashcraft]
    2. Collateral mater, a condition for consent that has no bearing on the procedure in question, cannot overcome defense.
    3. Boxing [Hudson v. Craft]
      1. Majority – consent is invalid because breach of peace injures the state as a third party
      2. Minority – consent is valid unless the purpose of the statute is to protect people from their own bad judgment; arguments:
        1. Economic – If boxers can’t sue for damages, there would be less incentive for boxers to indulge.
        2. Moral – Let people do what they do, since nobody else is being hurt.
        3. Administrability – If boxers can sue every time despite giving consent, there would be a flood of lawsuits.
        4. Volenti non fit injuria – “To the willing, injury is not done”; personal choice
    4. Other exceptions
      1. “Consent to sexual intercourse cannot be equated to consent with a vile and loathsome disease.” [Hogan v. Tavzel]
      2. Infidelity does not affect the essential character of the contact itself, so consent is valid. [Neal v. Neal]
      3. Patients’ consent to treatment by dentist with AIDS, which he failed to disclose, bars recovery in absence of proof of exposure. [Brzoska v. Olson]
  3. Self Defense and Defense of Others
    1. Elements
      1. Acted honestly in using force
      2. Fears were reasonable under the circumstances
      3. Force was reasonable under the circumstances
    2. Reasonable mistake is excused.
  4. Defense of Property
    1. Realty
    2. Personalty
    3. Force allowed
      1. Assault – because there is no contact
      2. Imprisonment – only for chattels (see “shopkeeper’s privilege”)
      3. Only that amount of force reasonably necessary
    4. No privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendant’s personal safety as to justify a self-defense. [Katko v. Briney]
    5. Use of a pit bull in protecting realty allowed because the purpose includes deterrence, not just injury.
  5. Official Privilege
    1. An officer of the law, acting as an agent of the state, may inflict violence in order to effectuate an arrest.
    2. Tennessee v. Garner – An officer may not use deadly force to apprehend a fleeing suspect unless there is:
      1. Probable cause of felony; and
      2. Threat to the safety of officer or danger to community if left at large.
    3. Reasonably mistaken belief that suspect is reaching for a handgun excuses deadly force. [Anderson v. Russell]

    Incomplete Defenses

  6. Necessity
    1. Elements
      1. Defendant must face a necessity [Ploof v. Putnam]
      2. The value of the thing preserved must be significantly greater than the harm caused
    2. Even though the trespass is privileged, defendant must pay for the harm caused. [Vincent]
    3. General Average Contribution (GAC)

      The master of a ship can make it his privilege to jettison cargo in order to preserve the ship and the people and other property on his ship.

      Container Owned by Value of Contents
      A Competitor of ship owner $100,000
      B One-time customer of ship owner $80,000
      C Long-term customer $25,000
      D Ship owner $20,000

      Others share in the loss, so the ship owner won’t have to bear the loss alone, and the socially desirable outcome is obtained.

Outline - Torts - I - Intentional Torts

Torts (2005 Fall)


  1. Act Requirement [Sullivan]

    Personal Harm

  2. Battery
    1. Elements
      1. Act
      2. Intent to cause harmful or offensive contact with the person of another or a third person, or apprehension of immediate harmful or offensive contact
      3. Harmful or offensive contact results
    2. Defense – Privilege by consent
    3. It is sufficient only to intend offensive contact, or contact that does not suit social propriety [Vosburg, White]
    4. There must be substantial certainty that harmful or offensive contact would result. [Garrett]
    5. An insane person can form intent and be held liable. [McGuire v. Almy]
    6. Extension of body includes cane. [Respublica v. De Longchamps]
    7. Transferred intent applicable
  3. Assault
    1. Elements
      1. Act
      2. Intent to cause apprehension of contact
      3. Plaintiff has actual apprehension of imminent contact
    2. Conditional threates – A neighbor who says he’s going to come over and “take care” of you if you don’t shut up your dog is not liable for assault because the threat is not one of imminent action.
    3. Threat of violence – “Mere words” is not actionable.
    4. Transferred intent applicable
  4. Intentional Infliction of Emotional Distress (IIED)
    1. Elements
      1. Intent to inflict emotional distress, or knew or should have known that emotional distress was likely result.
      2. Conduct “extreme and outrageous”; “beyond all possible bounds of decency”; and “utterly intolerable in a civilized community”.
      3. Actions were cause of distress.
      4. Emotional distress “severe”; “no reasonable man could be expected to endure it.”
    2. Defense - Public figures must prove more than “outrageousness”, and that the act contains a “false statement of fact”
    3. Physical harm not necessary [Agis v. Howard Johnson]
    4. Jury determines if frivolous
    5. Transferred intent applicable for the following when there is severe emotional distress:
      1. Plaintiff is member of target’s immediate family present at the time, regardless of bodily harm
      2. Plaintiff is any other person present at the time, if bodily harm results
    6. May piggyback on other intentional torts, such as battery or trespass, even if distress not severe
  5. False Imprisonment
    1. Elements
      1. Defendant acts
      2. Defendant intend to confine
      3. Action results in confinement
      4. Plaintiff is aware of the confinement (some jurisdictions)
    2. Defenses – “Shopkeeper’s privilege”
      1. Reasonable belief
      2. Reasonable manner
      3. Reasonable amount of time
    3. Actual physical confinement is not required as long as there is an overbearing of the plaintiff's will [McCann v. Wal-Mart, Griffin v. Clark]
  6. Stalking - California statute
    1. Pattern of conduct
    2. Intent
    3. Reasonable fear for self or immediate family
    4. One of:
      1. Credible threat and demand to cease and desist
      2. Violation of restraining order

    Property Interests

  7. Trespass to Land
    1. Elements
      1. Affirmative act [Snow v. City of Columbia - no act, no liability]
      2. Intent to enter (knew with substantial certaininty)
      3. Actual entry
      4. Harm to land results (only necessary for damages)
    2. Defenses
      1. “Innocent” trespasser – mistake without gross negligence [Barnes v. Moore] not excused, but liability nominal
      2. Privilege for certain groups (such as state workers) providing assistance to people on the land. [State v. Shack]
    3. Martin test - Particulate pollution as trespass. [Borland v. Sanders]
  8. Nuisance
    1. Elements - Same as Trespass to Land except:
      1. Intrusions are intangible
      2. No physical damage results
    2. If damages are awarded, payment acts as purchase of enjoyment of property – no further nuisance charges may be brought. [Boomer]
    3. “Coming to the Nuisance” – The fact that the plaintiff acquired or improved land after a nuisance came into being does not bar action but may be considered in determining whether the nuisance is actionable.
  9. Conversion and Trespass to Chattels
    1. Elements
      1. Act
      2. Intent to interfer with possession of personal property
      3. Actual damage
    2. Difference
      1. Conversion akinto theft
      2. Trespass to chattels deals with more modest interferences, such as interfering with use [Hamidi]
    3. Mistake not excused.
    4. Invoked to create new types of property [Moore v. Regents]

Outline - Torts

Torts (2005 Fall)


Tuesday, December 20, 2005

The Agony

Just one more exam to go! Tomorrow is the Torts final. Everybody I've seen today is completely freaked out. Some are just staying home and trying rote. Others are trying rote at home. Some are going over practice tests. Others have already gone over them, and are just checking each other now.

I went in around half past one, but couldn't get started on the work until around 5pm. I worked on and off for about three hours, adjusting my outline to include vicarious liability and strict liability, and to fill in some case names for products liability and medical malpractice.

I am quite sure I will not get eight hours of sleep tonight. Uploading the outline itself will be a drag because I tend to reformat it in pure HTML, and uploading the Criminal Law outline took about four hours. We'll see how it goes, I suppose.

My next prong of attack will be to go over the multiple choice questions, which should take roughly two hours. After that, I'll skim through some of the sample exam essays.

By this time tomorrow I hope to be good and buzzed.

[] []

Monday, December 19, 2005

Criminal Law Final

After having three hours of sleep, I dragged myself up out of bed this morning around half past eight, took a shower to wake up, and trudged off to campus. I expected to do some last-minute reviewing while having breakfast there, but instead became drawn in to a discussion among some classmates from my section. It was kind of nice to be able to understand everything they were saying, armed with the knowledge and experienced garnered from a marathon 12-hour review session with Shirley and Krystle on Sunday. That review session had prepared me to take a look at the big picture, while being able to zoom in fairly close to the details.

The exam today was interesting. There were 30 multiple choice questions administered over one hour and fifteen minutes. I had pretty much finished answering by about 45 minutes through, but went through it again just to make sure, and ended up changing a couple of answers. Still, the time seemed more than enough. There were two fact patterns, the first of which was divided into two questions, for a total of three essay questions. We were given two hours and twenty minutes to write; Shirley and Oshin were done well before the 10 minute mark was called. I, on the other hand, delved into the writing, typing ad nauseam it seemed. (I don't use spell check, so a lot of times I had to go back and correct what I had typed.) In fact, when the 10 minute mark was called, I still had yet to analyze the fact pattern for attempted homicide. I ended up taking somewhere between 5 and 7 minutes to do that. Forutnately that wasn't too long, or I might've gotten panicked seeing Shirley and Oshin sitting quietly, twiddling their thumbs.

Professor Natapoff had said that we'd have more than enough time, and I suppose she's basically right. The fact patterns weren't much if at all longer than the examples we'd seen in class; the difference was that, while we had been given limited time to answer the practice exams in class, here we had over two hours.

I felt pretty confident about a lot of my answers. However, one thing we've learned in this class is that no matter how confident one thinks one is, there's just no telling when it comes to this class. It's not so much the subject matter, most of us agree, as the interaction between the class and Professor Natapoff.

I'm guessing that the average number of correct answers for the multiple choice will be in the low teens. We'll find out, I guess.

[] [] []

Outline - Criminal Law - XII - Punishment

Criminal Law (2005 Fall)


  1. Retribution
  2. Utilitarianism
    1. Deterrence
    2. Rehabilitation
    3. Incapacitation

Outline - Criminal Law - XI - Trial Process

Criminal Law (2005 Fall)


  1. Evidence
    1. Evidence that is relevant is admissible only if it is:
      1. Probative
      2. Material
    2. Evidence that is relevant but inadmissible
      1. Privilege
        1. Patient/doctor
        2. Attorney/client
        3. Priest/penitent
        4. Spouse
        5. Self-incrimination
      2. Hearsay [Krulewitch – Prostitution conspiracy]
      3. Prejudice [Zackowitz – Character evidence inadmissible unless defense makes character an issue; psychological profiles or reputations in rape cases.]
    3. Evidence that is relevant but limited in admissibility
      1. Rule 404(b) – Evidence of prior crimes may be used for proof of motive, opportunity, intent, etc., but not for establishing character.
      2. Signature exception – Where prior crimes establish a “signature”, preponderance of evidence is sufficient.
      3. Sex offenses – Evidence of prior offense admissible unless prejudicial.
      4. Impeachment – If defense makes character an issue, character evidence admissible.
  2. Burden of Proof
    1. Reasonable doubt
    2. Preponderance for affirmative defense
    3. Allocation
      1. Normally state bears burden of production (putting an issue in play) and burden of persuasion (convincing the trier of fact).
      2. State may not shift burdens to defendant by making an element’s converse an affirmative defense. [Patterson/Mullaney]
    4. Presumptions
      1. Conclusive [Sandstrom – Conclusive not okay]
      2. Mandatory
      3. Permissible
      4. Rebuttable
  3. Role of Counsel
    1. Perjury

      Nix v. Whiteside – If defendant wants to commit perjury, counsel must choose between free narrative, and thread of disclosure.

    2. Impeachment of prosecution witnesses

Outline - Criminal Law - X - Group Criminality

Criminal Law (2005 Fall)


  1. Overview

    ACT = any assistance



    Intent to agree [Lauria] +

    Agreement [Interstate, Alvarez (2)] +

    Overt act (unless serious crime)

    NARROW INTENT TESTS Intent to commit substantive offense (knowledge not enough) [Hicks, Gladstone, MPC]
    Association/nexus with perpetrator [Gladstone]
    Intent to commit substantive crime [MPC]

    Knowledge of results (for serious crime)


    Reasonable, foreseeable, natural consequence of setting criminal activity into motion [Luparello, Roy]

    Pinkerton – Liable for substantive crimes committed in furtherance of conspiracy or that are reasonably foreseeable consequences
  2. Aiding and Abetting
    1. Act – Any assistance at all
    2. Intent
    3. Hicks – Defendant was present when Rowe murdered Colvard and said something to Rowe.
    4. Gladstone – Defendant drew map to marijuana dealer’s house.
    5. Fountain – Knowledge of purpose for which weapon would be used establishes liability. Purpose required for lesser crimes; knowledge enough for major crimes.
    6. Luparello – Defendant liable for “natural, probable, and foreseeable” harms in the course of other intended offense.
    7. Roy – “Natural and probable” is insufficient by itself when defendant didn’t intend to participate.

      Note: Aiding and abetting is not a separate crime.

  3. Conspiracy
    1. Elements
      1. Intent to agree [Lauria]
        1. Stake in venture/inflated charges
        2. No other legitimate use
        3. Disproportionate business
      2. Agreement
        1. Simultaneity not required [Interstate Circuit]
        2. No conspiracy for association, such as membership in gang [Garcia]
        3. Knowledge may be inferred [Alvarez (2) – Smile and promise to be there enough to infer knowledge of details of crime]
      3. Overt act (not required for serious crimes)
        1. Ohio – Act from which intent may be inferred
        2. Maine – “Substantial step”, closer to attempt
    2. Further Liability
      1. Pinkerton (minority) – Defendant in jail held liable for substantive crimes committed by brother.
      2. Bridges – Defendant in brawl at birthday party liable for murder by co-conspirator as it was within scope of conspiracy by being reasonably foreseeable.
      3. Alvarez (1) – Defendant in drug sting killing might not have been liable if the role was “minor”, reducing foreseeability.
      4. MPC (majority) – Defendants liable for further substantive crimes only when strict conditions for accomplice liability are met.
    3. Abandonment and Renunciation
      1. Common Law
        1. “Affirmative action” to announce withdrawal.
        2. Some jurisdictions also require thwarting.
        3. Liable for conspiracy, but no longer for further crimes.
      2. MPC
        1. Withdrawal requires “affirmative action” to announce withdrawal.
        2. Renunciation is an affirmative defense against all conspiracy charges and is established by successful thwarting.

Outline - Criminal Law - IX - Attempt

Criminal Law (2005 Fall)


  1. Intent
    1. Specific Intent – Must have specific intent regardless of the intent requirement for the completed crime (Note: Under this standard, it’s impossible to be guilty of attempted involuntary manslaughter).
      1. Smallwood – HIV-positive defendant convicted of rape not guilty of attempted murder where he lacked specific intent.
      2. Hinkhouse – HIV-positive defendant who actively concealed condition from consensual sex partners liable for attempted murder.
    2. MPC § 5.01 – Regular intent (for the offense)
  2. Act – How much is enough?
    1. Dangerous Proximity (attempt vs. preparation) [Rizzo – Defendant was stopped before robbing intended victim who was nowhere in sight. No liability because not in dangerous proximity.]
    2. Equivocality Test/Res Ipsa Loquitur (hardest to prove)
    3. MPC (easiest to prove)
      1. General Rule – Substantial step, corroborative of normal intent for offense
      2. Abandonment (renunciation) must be voluntary and complete.
      3. McQuirter (Alabama, 1953) – Black man hanging around near white woman convicted of attempted assault with intent to rape.
      4. Jackson – Under MPC, defendants who gave up robbery twice found guilty of attempted robbery.
      5. Harper – “Bill trap” not a substantial step.
      6. Mandujano – Dealer who never came back guilty of attempt.
      7. Joyce – Dealer who didn’t open package not guilty of attempt.
  3. Solicitation
    1. Davis – Defendant who merely solicited another to kill intended victim, unaccompanied by an act, not guilty of attempted murder.
    2. Church – Defendant who did just about everything to ensure successful kill guilty of solicitation and attempted murder.
    3. Many states hold solicitation is not attempt because solicitor doesn’t purpose to commit the offense personally.
    4. However, many states hold solicitation as an independent offense.
  4. Impossibility
    1. Factual Impossibility
      1. E.g., picking an empty pocket.
      2. Not a defense
    2. Legal Impossibility
      1. E.g., buying stolen property that’s not actually stolen.
      2. May be a defense
    3. MPC – Circumstances as defendant believed them to be

Outline - Criminal Law - VIII - Defenses

Criminal Law (2005 Fall)


Both the actual and proximate causes must be met. The first is about possibility; the second is about judgment.

  1. Justification - lesser harms, necessity
    1. Self Defense
      1. Threat of death or serious bodily injury
      2. Immediate
      3. Honest belief that imminent force is necessary
      4. Objectively reasonable

      Goetz – Defendant shot 4 black youths on subway thinking they were going to rob him. Self defense requires objective reasonableness, and proportionality (use only force reasonably believed necessary).

    2. Battered Woman’s Syndrome (see also excuse)
      1. Admissibility of expert testimony on BWS
        1. Educate jury about what a reasonable person would do under the circumstances
        2. Goes to credibility of defendant
        3. Standard still objective reasonable person
      2. Some courts go further, permit BWS to be used as a subjective standard, evaluate reasonableness from the perspective of battered woman, not reasonable person.

      Kelly – Woman killed abusive husband thinking he was going to hurt her.

  2. Excuse - concession to human frailty
    1. Duress
      1. Common Law
        1. Threat of death or serious bodily injury
        2. “Present, imminent, and pending”
        3. Reasonable
      2. MPC § 2.09 – “Reasonable firmness” standard, permits both justification (lesser evils) and duress (threat of harm from another) [Toscano – Doctor in insurance fraud entitled to jury trial over whether his actions met “reasonable firmness” standard.]
      3. Source – Duress must spring from coercion by another person; natural events do not count.
      4. Imminence
        1. Fleming – POW who aided enemy broadcasts not under duress when only threats were used.
        2. Contento-Pacho – Defendant who swallowed balloons of cocaine under reasonable belief coercer would carry out threats did not have reasonable opportunity to escape.
        3. Ruzic – Canadian court invalidated imminence requirement as too restrictive.
    2. BWS – Courts split over whether it should be excuse as well as justification. Requirement of fear of imminent great bodily harm exists in both.
  3. Intoxication
    1. General Rule – Intoxication is a defense to purpose and knowledge (specific intent), but not to recklessness or negligence (general intent). [Kingston]
    2. Hood – Assault is an “attempt”, but is not a specific intent offense for intoxication cases.
    3. Egelhoff – Excluding intoxication defense for “deliberate homicide” upheld if statute redefined by precluding voluntary intoxication, but may be unconstitutional for precluding defendant from mounting defense.

Outline - Criminal Law - VII - Causation

Criminal Law (2005 Fall)


Both the actual and proximate causes must be met. The first is about possibility; the second is about judgment.

  1. Actual Cause

    But-for causation [Acosta – “But for” defendant’s fleeing the police, helicopter would not have been in position for crash]

  2. Proximate Cause
    1. Foreseeability – “Barely objectively cognizable” risk suffices, but not for intent, even “conscious disregard”, precisely because it is barely foreseeable. [Acosta – Helicopter crash in high speed pursuit]
    2. Intervening Cause – Causes that break the chain of causation (unless foreseeable).
      1. Arzon – Firefighter killed by a 2nd fire in the same building while responding to fire set by defendant; because firefighter’s risk was foreseeable, no break in chain of causation.
      2. Kibbe – Defendants left vagrant out in the cold, who was then struck and killed by a passing drunk; no break in chain of causation; defendants liable.
      3. Stewart – Victim was hospitalized for injuries sustained from attack, died in subsequent unrelated surgery; defendant not liable due to break in chain of causation.
    3. Triggering Cause – An act or omission that sets the chain of causation in motion.
      1. Warner-Lambert – No evidence of how factory fire started despite presence of potentially explosive substances.
      2. Welansky – Evidence of how fire started resulted in conviction of nightclub owner for involuntary manslaughter.
      3. Deitsch – Defendant liable for warehouse fire despite not knowing how the fire started, because charge directed at defendant’s actions in blocking fire escape with bales.

Outline - Criminal Law - VI - Rape

Criminal Law (2005 Fall)


  1. Overview
    FORCE NON-CONSENT RESISTANCE What mens rea must the defendant have with regard to non-consent to be guilty of rape? What role for reasonable mistake of fact?
    What is force? According to whom? Element or evidence?

    (no resistance, therefore no force)

    (evidence of resistance or threat of force)

    (fear in reasonable victim)

    (reasonable woman/more than token resistance)

    Rhodes (PA)
    (more than physical coercion; psychological, moral, etc.)

    MTS (NJ)

    Alston, Warren
    (resistance, evidence)

    (reasonable woman’s fear standard)

    (burden on defendant to obtain affirmative and freely given consent)

    Alston, Warren
    (necessary element)

    (obviated by showing of reasonable fear)


    (not purpose or knowledge)

    Fischer (PA)
    (reasonable mistake of fact available for non-traditional force, strict liability for physical force cases)

    Ascolillo (MA)
    (strict liability – no reasonable mistake of fact available at all)

    Negligence – most jurisdictions

    Recklessness – Alaska and UK

  2. Act
    1. Force, Non-Consent, and Resistance (see overview)
      1. Rusk – Victim did not resist because she was reasonably afraid. Defendant took keys, looked at her menacingly, asked her up to his apartment, pulled her by arm to the bed, initiated undressing.
      2. Warren – 6’3”, 185-lb. man lifted 5’2”, 100-lb. woman off bike and had sex with her.
      3. Alston – Defendant had sex with ex, pushing her legs apart, despite non-consent.
      4. Mlinarich – Juvenile delinquent forced by custodian to have sex or be returned to delinquent home.
      5. Rhodes – More than physical coercion: Psychological, moral, etc.
      6. MTS – Teens having sex after heavy petting.
      7. MPC § 213.1
        1. 1st degree rape – Actual death/SBI, or stranger
        2. 2nd degree rape – Threat of death, SBI, extreme pain, or kidnapping
        3. Gross sexual imposition - Compulsion by any threat that would prevent resistance by ordinarily reasonable woman
    2. Deception
      1. Evans – Defendant posed as psychologist conducting interviews for magazine article. A trick is not coercion.
      2. Boro – Defendant tricked victim into having sex as a non-surgical alternative treatment for fictitious disease. Fraud in the factum creates liability; fraud in the inducement does not.
  3. Intent (see overview)

    Generally most states use a negligence standard. Some, such as Massachusetts, use a strict liability standard.

    1. Sherry – Defendants took victim from party to another place, had intercourse. Victim alleged kidnapping, rape.
    2. Fischer (PA) – College students engaged in rough sex.
    3. Ascolillo (MA) – Acquaintances had sex before.
  4. Proof
    1. Corroboration – In American rule, not required for forcible rape.
    2. Rape shield laws – Victim’s prior sexual history inadmissible except:
      1. When it shows that victim and defendant had had sex before [Pope]; or
      2. When it shows witnesses’ biases, prejudices, or ulterior motives. [DeLawder]

Outline - Criminal Law - V - Death Penalty

Criminal Law (2005 Fall)


  1. Constitutionality
    1. Furman (1972) – Death penalty violated 8th Amendment. Holding gave two alternatives to states:
      1. Legislatively mandate death penalty in certain cases.
      2. Establish guidelines to determine who gets death penalty.
    2. Gregg (1976) – Bifurcated proceedings imposing death penalty constitutional.
    3. Woodson (1976) – Mandatory death sentence for any 1st degree murder violates 8th Amendment.
  2. Non-Murder Liability
    1. Enmund – Defendant drove getaway car. Death penalty may not be applied.
    2. Tison – Defendants helped their father, a known convict, to escape and take hostages. Father then killed four hostages. Death penalty upheld because of “major participation ... combined with reckless indifference to human life”.
  3. McCleskey v. Kemp
    1. Baldus Report showed statistical likelihood death penalty would be imposed on black defendant when victim is white.
    2. Supreme Court upheld conviction.
    3. Statistical discrimination is not intentional abuse.
    4. Jury discretion is not abuse.

Outline - Criminal Law - IV - Homicide

Criminal Law (2005 Fall)


  1. Overview

    Because different levels of homicide all involve the unlawful killing of another human being, we’re most concerned with the level of intent, which separates homicide into “murder” and “manslaughter”.

      Mens Rea Type of Homicide Cases/Notes
    Murder Premeditated or intentional (express malice) 1st Degree Murder or Intentional Murder Carroll, Guthrie
    Recklessness “plus” depraved indifference to human life (implied malice) 2nd Degree Murder or All Other Murder Girouard, Malone, Fleming
    Manslaughter “Provocation” or EED (MPC) Voluntary Manslaughter  
    Recklessness Involuntary Manslaughter Welansky
    Criminal gross negligence Negligent Homicide (MPC) Welansky
    Civil negligence (rare) Negligent Homicide (rare) Williams

    Of the many intent factors, we’ll concern ourselves primarily with premeditation and provocation, which distinguish 1st and 2nd degree murders. We’ll then explore manslaughter as a group.

  2. Premeditation
    1. Time factor
      1. Carroll – Defendant remembered gun, guilty of premeditated murder. No time is too short.
      2. Guthrie – Defendant killed victim after being insulted. Court rejects Carroll. Some period of time required to form intent. Intent is not the same as premeditation.
    2. Anderson – Defendant killed 10-year-old daughter of girlfriend. Explosion of violence inconsistent with premeditation and deliberation.
    3. Pillbury – Premeditation a bad measure of culpability.
  3. Provocation

    Because provocation implies impaired intent and thus can be used to reduce murder to manslaughter, the question we ask here is, “What’s enough to incite a ‘reasonable person’?”

    1. Elements
      1. Actual heat of passion
      2. Legally adequate provocation [Girouard]
      3. Absence of cooling time [Maher]
    2. Girouard – Defendant killed wife after being taunted. Words alone are not enough as a matter of law.
    3. Maher – Defendant shot at wife’s suspected lover. Objective standard of ordinary human nature in judging whether provocation was sufficient or reasonable (including reasonableness of cooling time).
    4. Excuse (frailty of human nature) vs. justification (victim contributed)
  4. MPC § 210.3 - Manslaughter
    1. Reckless; or
    2. Committed under extreme emotional disturbance (EED) with reasonable explanation or excuse.
      1. Defendant was under EED (jury question).
      2. Defendant’s behavior was reasonable under EED (objective).
    3. Cassassa - Defendant broke into former love interest’s home several times, finally killing her with a steak knife. Court found he was under EED, but that his actions were not reasonable even under EED.

  5. Recklessness and Negligence
    1. Recklessness in Murder
      1. Malone – Defendant killed victim while playing Russian Roulette. Court found recklessness and “callous disregard” for human life, upheld 2nd degree murder conviction.
      2. Fleming – Defendant killed victim while driving in oncoming traffic, with 0.315% blood alcohol, in high-speed police chase. Driving drunk, and driving recklessly while drunk, is “recklessness ‘plus’”, conviction for 2nd degree murder upheld.
    2. Recklessness and Negligence in Manslaughter
      1. Welansky – Night club owner knew of facts that would have given reasonable awareness of danger, which court held the same as knowing of danger. Defendant held liable for involuntary manslaughter due to recklessness.
      2. Williams – Defendants did not give their baby reasonable access to medical care. Although not criminally negligent, court held them civilly negligent, and imposed liability for negligent homicide under statutory manslaughter.

Outline - Criminal Law - III - Liability

Criminal Law (2005 Fall)


  1. Proportionality
    1. 8th Amendment – “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted ...”
    2. Harmelin – Life in prison without possibility of parole for possession of <700g of cocaine not “cruel and unusual”.
      1. Majority – Narrow holding that diversity in policy and implementation is heart and soul of federal system; but “death is different”.
      2. Kennedy concurrence – No strict proportionality; 8th Amendment only forbids extreme sentences “grossly disproportionate” to offense.
  2. Legality - Limits on what acts the state can criminalize
    1. Role of public morality [Lawrence - Statutes criminalizing sodomy unconstitutional for punishing homosexual status]
    2. Role of courts [Shaw – Court creates offense of “conspiracy to corrupt public morals”]
      1. Viscount Simonds – power in the courts
      2. Lord Morris – power to the jury
      3. Lord Reid (dissent) – power to Parliament
    3. Role of legislature [Keeler – Court declines to define unborn fetus as “human being”, reverses conviction of defendant who kneed his pregnant ex-wife, killing the fetus]
    4. Vagueness [Morales – Statute criminalizing loitering unconstitutionally vague]
      1. Lack of notice
      2. Arbitrary and discriminatory enforcement

Outline - Criminal Law - II - Intent

Criminal Law (2005 Fall)


  1. General Rule - Every element of every offense has a requisite intent, which must be proven before the defendant can be found guilty.
    1. Cunningham - Ripping out gas meter does not establish intent to release gas which put another in danger.
    2. Morissette - Statutory silence does not eliminate intent requirement for common law crimes.
  2. MPC § 2.02
    1. Purpose
      1. Conduct – Conscious object to engage in the conduct
      2. Circumstances – Awareness of circumstances, or believes or hopes such circumstances exist
    2. Knowledge
      1. Conduct or Circumstances – Awareness
      2. Result – Awareness that result is practically certain
    3. Recklessness (default requisite intent when statutes are silent) – Consciously disregards substantial and unjustifiable risk, gross deviation from law-abiding person
    4. Negligence – Should be aware of substantial and unjustifiable risk, gross deviation from reasonable person [Santillanes - Criminal negligence different from civil negligence]
  3. Motive - Irrelevant to criminal liability, important in sentencing
  4. Subjective vs. Objective Standards
    1. Subjective – What did the defendant actually intend or know? (purpose, knowledge, recklessness)
    2. Objective – What should the defendant have reasonably known? (negligence)
  5. Specific Intent vs. General Intent
    1. Generally speaking, a specific intent crime requires the defendant to have a specified further purpose.
    2. Intoxication can be a defense to a specific intent crime.
  6. Conditional Intent
    1. Statutes need to be worded carefully. [Holloway – Carjacking defendant intended only to take car, and intention to cause death or serious bodily harm was conditioned on not getting the car]
    2. Addressed case-by-case
  7. Willful Blindness
    1. General Rule – Deliberate ignorance = willful blindness = positive knowledge. [Jewell, narcotics middleman]
    2. MPC § 2.02(7) - Willful blindness same as knowledge
    3. Luban Objection – A drug dealer hires 3 couriers, tells them not to look in the trunk, and that 2 carry only clothes. Each now knows of 1/3 probability of drugs, and may believe himself carrying clothes.
  8. Strict Liability
    1. General Rule
      1. Strict liability is used for regulation.
      2. Early uses in labeling [Balint; Dotterweich]
    2. Parameters [Morissette - Stealing bomb casings]
      1. Public welfare health/safety offenses
      2. New regulatory rather than old “bad” offenses
      3. Controls a dangerous thing
      4. Defendant has care and control over potential harm (shifting burden of care to person in control away from public/consumer)
      5. Small penalties
      6. Low reputational harms
    3. Staples – Conviction reversed for defendant who violated firearms statute which would “criminalize a broad range of apparently innocent conduct.”
    4. X-Citement Video – Conviction reversed for defendant who used underage actress because of grammatical usage separating distribution and age elements.
    5. Guminga – Criminal penalties based on vicarious liability for employer whose employee served alcohol to minor violate due process; civil penalties better.
    6. Baker – Speeding defendant with stuck cruise control strictly liable because of voluntary act of engaging cruise control.
  9. Mistake of Fact
    1. General Rule – MOF is a defense when it “negatives” the intent requirement.
    2. MPC § 2.04 – Ignorance or mistake is a defense when it negatives the existence of a state of mind that is essential to the commission of an offense, or when it establishes a state of mind that constitutes a defense under a rule of law relating to defenses.
    3. Intent Levels
      1. Purpose – defense
      2. Knowledge – defense
      3. Recklessness – defense
      4. Negligence – defense if “reasonable”
      5. Strict liability – no defense
        1. Prince – Defendant’s reasonable mistake of girl’s age no defense against strict liability.
        2. Olsen – Defendant’s reasonable mistake of girl’s age no defense when act is most serious of degrees established by statute.
    4. Reading statutory elements
      1. Bramwell (“lesser wrong”) – Mens rea not required when act is wrong in itself [Prince, majority]
      2. Brett (“lesser crime”) – No conviction in absence of criminal mind [Prince, dissent]
      3. Dan-Cohen – Decision rules vs. conduct rules
        1. Conduct rules speak to general public
        2. Decision rules speak to legal officials
        3. Problem of notice
      4. Kahan – MOF excused only if it negates inference that defendant has failed to internalize social norms.
  10. Mistake of Law
    1. General Rule - Mistake of law is no defense. [Marrerro – Federal corrections officer brought handgun to club.]
    2. When mistake of law acts like mistake of fact:
      1. If statute makes legal awareness of a fact an element, mistake of law functions like MOF.
      2. Smith (David) – Defendant who tore up property he thought belonged to him did not have requisite intent for the offense.
      3. Cheek – Defendant’s honest belief that wages are not income is a defense; but opinion that income taxes are unconstitutional is no defense.
    3. “Willfully” and “knowingly”
      1. Should “willfully violate” or “knowingly violate” mean knowledge of existence of law, or normal “knowledge” intent?
      2. International Minerals – Normal knowledge where defendant transports corrosive liquids
      3. Liparota – Knowledge of existence of law in food stamp fraud; no criminalizing “broad range of apparently innocent conduct”
      4. Ratzlaf – Knowledge of existence of law in insufficient funds; writing a check is normally an innocent act
      5. Bryan – Knowledge of unlawfulness of act sufficient to convict unlicensed firearms dealer
    4. Reliance
      1. Reliance on official statement of law is defense
      2. Recognized sources of reliance:
        1. Judicial decisions [Albertini - Defendant relied on 9th Circuit decision that his participation in protests was lawful]
        2. Statutes
        3. Administrative orders
      3. Advice of counsel not reliable [Hopkins]
    5. Limits
      1. Lambert – Statute requiring registration of out-of-state felons unconstitutional for imposing strict liability without giving notice.
      2. Cultural Defense – Different cultures have different social norms and may imply different intents.

Outline - Criminal Law - I - Act

Criminal Law (2005 Fall)


  1. Involuntariness
    1. General Rule - Involuntariness is a defense to the act requirement. [Martin - No liability because defendant was not in public voluntarily, thus does not satisfy element requiring him to “appear in public”.]
    2. Unconsciousness – Where not self-induced, unconsciousness is a complete defense. [Newton, defendant was not conscious of shooting police officer, corroborated by expert testimony.]
    3. MPC § 2.01(2)
      1. Reflex or convulsion
      2. Unconsciousness movement or sleepwalking
      3. Hypnosis
      4. Movement not a result of conscious or habitual effort
    4. Exceptions
      1. Where statute does not require volition [Winzar – No defense when statute reads “found drunk”]
      2. Where defendant was aware of probability of acting involuntarily [Decina – Epileptic seizure no defense]
  2. Omissions
    1. General rule – No liability for failure to act unless law imposes a duty
    2. Duties [Jones]
      1. Statute – Statute imposing duty on “any person” who lets an elderly person suffer pain fails to provide clear standard, not enforceable. [Heitzman, non-resident daughter did nothing to stop siblings’ abuse of parent.]
      2. Relationship
        1. Pope – Defendant not liable for death of child whose mother killed him.
        2. Jones – Defendant not liable for not feeding child of family friend.
        3. Beardsley – Defendant not liable for death of woman, not his wife, who overdosed in his house.
      3. Contract [Stone and Dobinson - defendant and his housekeeper had duty to his rent-paying sister]
      4. Assumption of Care and Seclusion [Oliver - Defendant had duty to man she brought home from club, in effect secluding him from others]
    3. Euthanasia – Terminating Treatment vs. Assisted Suicide
      1. Barber – Doctors lacked duty to provide heroic life sustaining measures after they are deemed futile; treats terminating treatment as an omission.
      2. Cruzan – State may require clear evidence of patient’s constitutionally protected refusal of unwanted medical treatment; Scalia rejects distinction between “active” suicide and “passive” declining treatment.

Outline - Criminal Law

Criminal Law (2005 Fall)

INTRODUCTION - From Bowers v. Hardwick to Lawrence v. Texas, the law continues to evolve and change. Criminal law is best encapsulated thus:


In Latin, this is expressed as actus non facit reum nisi mens sit rea (“an act does not make guilt unless the mind be guilty”).

  1. ACT
  6. RAPE

Saturday, December 17, 2005

Property Midterm

The Property midterm was on Thursday. It seemed fairly straightforward, although I was slightly thrown off by the lack of need to cite case names. Then again, Property has always been a fairly straightforward class, although sometimes, Professor Petherbridge's interpretation of the Socratic method leaves students a little confused. Still, his answers to e-mail questions helped straighten us out as to what rules he expects us to apply.

There were 15 multiple choice questions, and an essay. The multiple choice section actually took me close to 50 minutes to do. I would have finished sooner, but I ended up spending a good 10 minutes erasing my scantron. (The way I take multiple choice tests, I would circle the correct answer on the exam itself, and fill it out later. When I came up across a question I should skip, I absent-mindedly failed to skip it on the scantron. Grr.)

The most memorable question involved a triangle of privity. The question was very humorously worded, but the principle was pretty straightforward. The fact patter was as follows (minus the humor):

Superman leases out the Hall of Justice to Batman for 5 years. Batman meets Robin, and a year into the lease, the Dynamic Duo move out together to Gotham city. Batman contracts with Wonder Woman, who assumes all the covenants of the master lease. A year later, Wonder Woman assigns the remainder of the lease to Aquaman. A year after that, Aquaman assigns to Wolverine for one year. Wolverine fails to pay rent. Whom can Superman collect from?

The answer was Wonder Woman (privity of contract) and Aquaman (privity of estate). There is no privity of estate between Superman and Wolverine because, although Aquaman "assigns to Wolverine" for one year, there is another year left, so what Wolverine has is a sublease, and not an assignment, and there is no privity of estate between the landlord and a sublessee.

The essay was also fairly straightforward, and stuffed full of issues. It's too long to repeat here, but suffice it to say that everybody seemed to have addressed the same issues. One thing that I noticed I missed, after talking with classmates during the Criminal Law review session yesterday, was the rule against perpetuities (RAP) in the essay. The original landowner devised the following on her death:

To Henry husband to my wife Wilhelmina [for life], but there is agriculture, or if the prairie dogs on the land are harmed, then to my son Udo and his heirs.

I don't remember if the words "for life" were there (Shirley doesn't remember seeing those words), but I think they were, because I called Henry's interest a life estate, which would only work if the words "for life" were there. In either case, Udo has a shifting executory interest. That alone should have triggered thoughts of RAP in my mind. I missed that.

All in all, I'm glad I had enough time to type the essay. I could have squeezed out more issues if there had been more time, but at least I wasn't caught in the middle of a sentence when time was called. In fact, I had just typed the last period only a second before time was called. Talk about close!

It's time now to cram for Criminal Law and Torts. Fighting procrastination is hard, though, especially since my outlines for both classes are mostly done.

[] [] []

Thursday, December 15, 2005

Saturation Point

There's a point, I think, after which it just doesn't help to study anymore. I believe I've reached that point with Property. I've had a whole week to work on the outline, and I got it done last night. In fact, most of it had been done by Monday night, except for landlord-tenant law. Since that material is more recent, I'm more comfortable with it.

I went to the law library today with the full intention of studying. After Tuesday's review session, during which we went over possessory estates, future interests, and especially focused on the rule against perpetuitites, I've reached a certain saturation point. I honestly think there's not much more I can study for this exam. So I spent my time in the law library playing spider solitaire.

Mind, this is not to say that I think I will ace the exam. It is merely to say that I feel comfortable enough that I don't think I will do poorly. It's part and parcel, I suppose, of an overall feeling of listlessness, and an inability so far this semester to get really excited about course material. Despite the rumors from other sections that my section (which has the lion's share of older students and students with more real-world experience) studies assiduously, I am an exception. Having discovered too late that simply doing the reading isn't enough, and that briefing matters both more and less than I had thought before the beginning of the semester, it seems that it's just too much work to relearn an entire semester's worth of material. Besides, I'd already reviewed it by dint of creating the outline.

The Property exam begins in 12 hours. Next week, we will face finals for Criminal Law and Torts, both of which are far more intimidating. I guess there's not much more to say, except a fond good luck to my classmates. Just don't outscore me by too much, okay?

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Wednesday, December 14, 2005

Outline - Property - VI - Landlord-Tenant

Property (2005-2006)


  1. Leasehold Estates
    1. Term of Years – No notice of termination required.
    2. Periodic Tenancy
      1. Year-to-year – Half year notice
      2. Periods less than a year – Notice requires one period, no more than half year
    3. Tenancy at Will
      1. No fixed period
      2. Endures as long as both landlord and tenant want
      3. Termination
        1. Common Law – A lease giving tenant power to terminate also gives landlord same power.
        2. Minority – A lease terminable at lessee’s will creates life tenancy determinable. [Garner v. Gerrish, NY]
      4. Can be grafted onto term of years or periodic tenancy, making them determinable
    4. Tenancy at Sufferance: Holdovers
      1. Eviction (plus damages)
      2. Express or implied consent to creation of new tenancy
        1. Implied periodicity based on when rent due
        2. Implied periodicity not to exceed one year
      3. Crechale & Polles v. Smith – Refusal to extend lease negated by acceptance of rent checks and failure to eject.
  2. Statute of Frauds - Certain sorts of contracts must be written down. Here’s a helpful mnemonic:

    Marriage (such as pre-nuptials) Year - Anything that involves more than one year (relevant here) Land Executor Goods greater than $500 Surety

  3. Selection of Tenants – Fair Housing Act
    1. Class protected
      1. Race
      2. Color
      3. Religion
      4. Sex
      5. Familial status
      6. National origin
    2. Actions prohibited
      1. Refusal to sell or rent after bona fide offer
      2. Refusal to negotiate for sale or rental
      3. Otherwise making unavailable or denying
      4. Discrimination in terms, conditions, or privileges
      5. Discrimination in provision of services or facilities
      6. Making, printing, or publishing indications of preference, limitation, or discrimination
      7. Misrepresenting availability
    3. Exemptions
      1. Any single family home if the owner does not own more than three such homes.
      2. A room or unit in a dwelling meant for no more than four independent families if the owner lives in one.
    4. Prosecution and burden shifting [Soules]
      1. Prima facie case
        1. Plaintiff is member of class
        2. Plaintiff qualified for rent
        3. Plaintiff was denied or rejected
        4. Apartment/dwelling still available
      2. Defense
        1. Legitimate reason for denial unrelated to status
        2. Plaintiff had bad attitude
        3. Consideration of other tenants
      3. Rebuttal – Plaintiff now must show defense was pretextual rather than legitimate.
  4. Delivery of Possession
    1. English Rule (majority) – There is an implied covenant requiring the lessor to put the lessee in possession.
      1. More likely to get possession
      2. Landlord better positioned to prosecute evictions
    2. American Rule (minority) – There is no implied duty upon the lessor as against wrongdoers to lessee’s right of possession. [Hannan v. Dusch]
      1. Unfair to hold landlords liable
      2. Incentives well-aligned
  5. Assignments and Subleases
    1. Assignment – Transfer of all remaining interests
    2. Sublease – Transfer of less than all remaining interests
    3. Privity
      1. Privity of contract remains between landlord and first tenant unless specified (e.g., assignee or sublessee assumes all covenants or agrees to be bound by terms and conditions of master lease, making landlord third-party beneficiary of subcontract) [Ernst v. Conditt]
      2. Privity of estate between landlord and assignee
      3. No privity at all between landlord and sublessee
      4. Landlord may recover from those in privity, either of estate or of contract
    4. Consent (minority) – Where commercial lease requires prior consent, consent may be withheld only for commercial objections. [Kendall v. Ernest Pestana – Contractual nature, obligation to “good faith” and “fair dealing”]
      1. Financial responsibility of proposed assignee
      2. Suitability of use for particular property
      3. Legality of proposed use
      4. Need for alteration of premises
      5. Nature of occupancy (e.g., office, factory, clinic)
      6. Protection of landlord in ownership and operation of the particular property [Krieger v. Helmsely-Spear]
  6. Tenants in Default
    1. Default
      1. Tenant fails to pay rent.
      2. Tenant fails to observe some other lease obligation.
    2. Tenant in possession [Berg v. Wiley]
      1. Where tenant has not abandoned, forcible reentry is wrongful eviction.
      2. Self-help repossession is wrongful eviction.
    3. Tenant who has abandoned possession [Sommer v. Kridel]
      1. Majority – Duty to make reasonable effort to mitigate damages
      2. Minority – No duty to mitigate damages