Intentional Torts

Front 1

Intention torts involving physical injury: Three Elements the plaintiff is required to prove

Back 1

1. voluntary act

2. intent or transferred intent

3. causation

Front 2

What is a Voluntary act?

Back 2

Defendant must have the state of mind that directed the physical movement.

Front 3

What is Intent?

Back 3

Defendant acts with the Purpose of causing the consequence OR defendant acts knowing the consequence is substantially certain to occur.

Consequences: means the action taken that constitutes the tort, not that the defendant intended the particular harm that followed.

Children and mentally incompetent person can be held liable if they act with requiered intent

Front 4

What is Transferred intent?

Back 4

Peron intends to commit an intentional tort against one person but instead commits

1. a different intentional tort against the same person

2. the same intended tort against a different person OR

3. A different intentional tort against a different person.

Front 5

What does Transferred intent apply to?

Back 5

1. battery

2. assault

3. false imprisonment

4. trespass to land

5. trespass to chattels

DOES NOT APPLY TO intentional infliction of emotional distress.

Front 6

What is causation?

Back 6

Defendant's conduct was a substantial factor in creating the harm

Front 7

Definition of the tort of Battery

Back 7

Defendant causes a harmful or offensive contact with a person of another AND acts with the intent to cause that contact OR the apprehension of that contact

Front 8

(Battery) What is Harmful or Offensive Contact?

Back 8

Harmful: causes an injury, physical impairment, pain, or illness

Offensive: a reasonable person would find the contact offensive

NOTE: could be liable if aware that victim is hypersensitive and act nonetheless

NOTE: plaintiff does NOT need to be aware of the contact when it occurs.

NOTE: contact with anything connected to the plaintiffs person qualifies as contact with the person.

Front 9

(Battery) Damages:

Back 9

Egg shell plaintiff or thin skull plaintiff: Defendant is not required to foresee the extent of damages to be liable for all damages

No proof of actual harm is required (can recover nominal damages)

Punitive damages if the defendant acted with malleus or outrageously

Front 10

Definition of Assault:

Back 10

Plaintiff's reasonable apprehension of an imminent harmful or offensive bodily contact caused by the defendant with intent.

Front 11

(Assault) Intent

Back 11

Defendant must intent to either cause

1. That apprehension OR

2. The contact itself.

Front 12

(Assault) apprehension:

Back 12

Must be reasonable AND the plaintiff must be aware of or have knowledge of the defendants act.

Actual fear is NOT required

Front 13

(Assault) Imminent

Back 13

Must be without significant delay

Threats of future harm are not sufficient

Front 14

(Assault) Mere words:

Back 14

Mere word do not constitute an assault however words coupled with the circumstances can indicate an imminent threat of a harmful or offensive contact

Front 15

(Assault) Damages:

Back 15

No proof of actual damages is required

Plaintiff can recover nominal damages

Plaintiff can also recover damages from physical harm flowing from the imminent apprehension ie heart attach

Front 16

Intentional Infliction of Emotional Distress (IIED) definition:

Back 16

A defendant is liable for intentionally or recklessly acting with extreme or outrageous conduct that causes the plaintiff sever emotional distress.

Courts are hesitant to recognize this tort

Front 17

(IIED) intent:

Back 17

The defendant must intend to cause severe emotional distress or at least be reckless as to the risk of causing extreme emotional distress.

TRANSFERRED INTENT DOES NOT APPLY

Front 18

(IIED) Extreme or outrageous conduct

Back 18

Exceed the limits of common decency (Ordinary person will exclaim 'outrageous') so as to be intolerable to society

Mere insult, indignities, or threats are not enough

More likely to find if 1. defendant is in a position of authority or influence over the plaintiff OR plaintiff is a member of a group that has heightened sensitivity.

Front 19

(IIED) Conduct Directed toward a Third Party immediate family:

Back 19

If the conduct is directed at a member of the victim's immediate family who is present at the time of the conduct, and the defendant is aware of that presence, then that person can e liable whether or not there Is physical injury

Front 20

(IIED) Conduct Directed toward a Third Party not immediate family:

Back 20

Defendant must be aware of the bystanders presence and that bystander suffers distress that results in bodily injury then that person can be liable

Front 21

(IIED) Severe emotional distress

Back 21

Plaintiff must prove severe emotional beyond what a reasonable person could endure

Front 22

(IIED) Damages

Back 22

Physical injury is NOT required (except in the case of a bystander other than a family member)

Front 23

False Imprisonment Definition

Back 23

1. Defendant acts intending to confine or restrain another within boundaries fixed by the defendant, 2. The actions directly or indirectly result in confinement AND 3. the plaintiff is aware of the confinement OR harmed by it

Front 24

False Imprisonment Confined within bounded area:

Back 24

plaintiff's freedom of movement in all directions must be limited.

the area can be large

Does not have to be stationary

Not considered bounded if there is a safe means of escape.

Front 25

False Imprisonment: Methods of confinement

Back 25

Use of physical barriers, physical force, threats, invalid use of legal authority, duress, or refusing to provide a safe means of escape.

A court may find confinement when the defendant has a duty to release the plaintiff from existing confinement and refuses.

Front 26

False Imprisonment: Shopkeeper's Privilege

Back 26

A shopkeeper can detain a suspected shoplifter without being considered false imprisonment

Front 27

False Imprisonment: Intent

Back 27

Defendant must act:

1. with the purpose of confining the plaintiff OR

2. with the knowledge that the plaintiff's confinement is substantially certain to result.

Confinement due to negligence is not intentional

Transferred intent applies to false imprisonment

Front 28

False Imprisonment: knowledge of confinement

Back 28

Plaintiff must be aware of the confinement at the time it occurs OR suffer actual harm from the confinement.

Front 29

False Imprisonment: Damages

Back 29

Actual damages are not required and nominal damages can be recovered unless the plaintiff is not aware of the confinement

Front 30

Defenses to Intentional Torts Involving Personal Injury(DTIT)

Back 30

1. consent

2. Self-Defense

3. Defense of others

4. Defense of property

5. Parental Discipline

6. privilege of Arrest

Front 31

(DTIT) Express Consent:

Back 31

Plaintiff, by words or actions, manifests a willingness to submit to the conduct.

Conduct cannot exceed the scope of the consent.

Front 32

(DTIT) Consent by Mistake

Back 32

Is valid UNLESS the defendant caused the mistake or knew of it and took advantage of it

Front 33

(DTIT) Consent by Fraud

Back 33

Invalid IF it goes to an essential matter however, if the fraud goes to a collateral matter (ie amount of money you get to fight) then the consent is valid

Front 34

(DTIT) Consent under duress

Back 34

Not valid when threats of physical force however, threats of economic duress will not make consent invalid

Front 35

(DTIT) Implied Consent

Back 35

When a reasonable person would object and you are silent OR when you enter into circumstances where you are signaling indirectly your willingness to endure certain conduct ie playing sports (only liable then if the conduct is reckless/ outside the normal scope of the sport)

Front 36

(DTIT) consent and capacity

Back 36

lack of capacity (youth intoxication incompetency etc) may undermine the validity of consent

Front 37

(DTIT) Self- Defense

Back 37

a person may use reasonable force to defend against an offensive contact or bodily harm. Force must be reasonably proportionate to the anticipated harm.

A reasonably mistaken belief about a threat will be a valid defense.

Not required to retreat if you are legally entitled to be where you are ie your home

Initial aggressor is not entitled to claim self defense

Front 38

(DTIT) Self-Defense and injuries to bystanders

Back 38

The defender or actor is not liable for injuries to bystanders as long as the injuries were accidental and the actor was behaving reasonably (not negligent)

Front 39

(DTIT) Defense of others

Back 39

You are allowed to use reasonable force in defense of other upon a reasonable belief that the party would be entitled to use self defense.

Front 40

(DTIT) Defense of Property

Back 40

Can use reasonable force if reasonably necessary to prevent tortious harm to property

May NOT use Deadly force in defense of property

Recapture of personal property only through peaceful means

Front 41

(DTIT) Parental discipline

Back 41

Parent may use reasonable force or impose reasonable confinement as necessary to discipline their child.

Front 42

(DTIT) Privilege of Arrest as a Private Citizen

Back 42

Permitted to use force to make an arrest in the case of a felony IF

1. the felony has actually been committed AND the arresting party has reasonable grounds to suspect that the person being arrested has committed the felony

Reasonable mistake as to identity is permissible but NOT a mistake as to whether the felony was actually committed.

Front 43

(DTIT) Privilege of Arrest Police

Back 43

Must reasonably believe a felony has been committed and that the person arrested committed it. An officer who makes a mistake as to whether a felony has been committed is NOT subject to tort liability

ALSO a misdemeanor arrest may only be made if there is a 'breach of the peace'

Front 44

Trespass to Chattels Definition

Back 44

An intentional interference with the plaintiff's right to chattels either by

1. dispossessing the plaintiff OR

2. using or intermeddling with the plaintiff's use of the chattel

Front 45

Trespass to chattels Intent

Back 45

Only the intent to do the interfering act is necessary not intent to interfere with another's possession of the tangible property

Mistake about the legality of the action is NOT a defense.

Front 46

Trespass to Chattels Damages

Back 46

in dispossession plaintiff may recover Actual damage caused and loss of use damages

In use or intermeddling the plaintiff can only recover actual damages

Actual damages include diminution in value or the cost of repair

Front 47

Conversion definition

Back 47

Defendant intentionally commits an act depriving the plaintiff of possession of his chattel or interfering with the chattel in a manner so serious as to deprive the plaintiff entirely of the use of the chattel.

Front 48

Conversion damages

Back 48

Plaintiff can recover the chattel's full value at the time of conversion

Front 49

Conversion and Intent

Back 49

Defendant must only intent to commit the act that interferes

Mistake of law or fact is not a defense

Front 50

Conversion and Interference

Back 50

Can occur by exercising dominion or controle over the plaintiff's chattel

If the original acquisition was not wrongful then the plaintiff must first demand return of chattel before suing for conversion

Front 51

Conversion and Action for replevin

Back 51

Action for return of the chattel as an alternative to damages

Front 52

Trespass to chattels v. Conversion

Back 52

Conversion- interference to such a degree that the defendant should have to pay the full value

Factors:

1. the duration and extent of the interference

2. defendant's intent to assert a right inconsistent with the rightful possessor

3. expense of inconvenience to the plaintiff AND

4. Extent of harm to chattel

Front 53

Trespass to land definition

Back 53

Defendant intentionally causes a physical invasion of someone's land (could be throwing a rock onto the land or failure to leave property after lawful right of entry has expired)

Front 54

Trespass to land Intent

Back 54

only need intent to enter land or cause the physical invasion NOT the intent to commit a wrongful trespass

Mistake of fact NOT a defense

Front 55

Trespass v. Nuisance

Back 55

Trespass always involves an actual physical invasion or intrusion on the land

Nuisance may are may not involve a physical invasion or intrusion (ie noise or oder)

Front 56

Trespass to land Damages

Back 56

No proof of actual damages is required and can recover nominal damages

Front 57

Necessity as a defense to trespass

Back 57

GR: available to a person who enters onto the land of another or interferes with their personal property to prevent an injury OR to prevent another sever harm

PRIVATE NECESSITY: incomplete privilege the defendant must pay for actual damages that he has caused

PUBLIC NECESSITY: when to protect a large number of people from harm full privilege and not liable for damages to the property

Front 58

private Nuisance Definition

Back 58

An activity that substantially and unreasonably interferes with another's use and enjoyment of land.

It can be intentional, negligent, reckless, or the result of an abnormally dangerous activity

Front 59

Private Nuisance interference

Back 59

If the conduct that interferes with the use and enjoyment of land is unintentional, then the plaintiff must show that the conduct was negligent.

If the conduct that interferes with the use and enjoyment of land is intentional, then it will be considered a nuisance if it is more than the plaintiff should have to bear

Front 60

What is not a private nuisance

Back 60

1. blocking sunlight OR

2. the obstruction of views

EXCEPT the 'spite fence' (fence with no purpose except to block the neighbor's view or sunlight)

Front 61

Defenses to Private Nuisance

Back 61

depends if conduct was negligent, intentional, or abnormally dangerous.

compliance with state or local laws not a complete defense

Coming to the nuisance-move somewhere knowing about a conduct- not a complete defense just one factor considered by the court

Front 62

Public Nuisance Elements

Back 62

1. An Unreasonable interference with a right common to the general public as a whole (ie pollution blocking a highway etc)

2. Special harm to the plaintiff that is special or distinct from the public.

Front 63

Remedies for nuisances

Back 63

injection: abetment (court hesitate if value of activity is greater when compared the harm it created)

Damages: for harm suffered or permanent damages

Front 64

Abatement for public and private nuisance

Back 64

Private Nuisance: a person may enter another's land to abate a private nuisance AFTER giving the defendant Notice of the nuisance and the defendant refuses to act.

Reasonable force may be used to abate the nuisance

Public Nuisance: abated by public agency/authority

Front 65

Negligence

Back 65

what would a reasonably prudent person do under the same or similar circumstances?

conduct that falls below the minimum degree of ordinary care imposed by law to protect other against unreasonable risk of harm

Failure to exercise the care that a reasonable person in that situation would exercise and acting in a way that breaches the duty to prevent foreseeable risks of harm to others.

The breach of the duty must be the cause of the plaintiff's harm

Front 66

negligence elements

Back 66

1. Duty

2. Breach

3. Cause (in fact and proxement)

4. Damages

Front 67

Negligence Duty

Back 67

GR: There is a legal duty owed to all foreseeable persons who may be injured by the defendants failure to follow a reasonable standard of care

Front 68

Negligence Duty: failure to Act

Back 68

GR: No duty to act affirmatively even if it is unreasonable

Front 69

Negligence Duty: Foreseeability of Harm

Back 69

If acting affirmatively, the foreseeability of the harm to others is enough to give rise to this general duty of reasonable care.

DOC owed only if plaintiff is a member of the class of persons who might be foreseeably harmed by the conduct.

A person who comes to your aid they are a foreseeable plaintiff EXCEPT 'firefighters rule' certain emergency personnel may be barred from recovering damages.

Front 70

Negligence Duty: failure to Act EXCEPTIONS

Back 70

Assumption of Duty: voluntarily giving aid or rescuing another is liable for injury cased by the failure to act with reasonable care in performance that aid or rescue

Placing another in danger: If you pushed someone in the pool that cant swim you have a duty to act to get them out

By Authority: person with ability and actual authority to control another has a duty to exercise reasonable control

By Relationship: business-patron or common carrier-passenger duty to aid or assist and prevent reasonably foreseeable injuries.

Front 71

Negligence Standard of Care

Back 71

Reasonable prudent person un the same or similar circumstances: Objective standard

presumption of average mental ability and knowledge

Particular physical characteristics ARE taken into account ie blindness or deafness

Intoxication: unless involuntary same standard as sober person

Children: more subjective, what would a reasonably prudent child of the age do EXCEPT when engaged in 'adult activity' ie driving then age is not taken into account.

Front 72

Negligence SOC and the cost benefit analysis

Back 72

Another way to see if 'reasonable person'

whether there is a reasonable, efficient, inexpensive, sensible precaution that should have been taken in light of the foreseeable risks.

Court take into account the foreseeable likelihood of harm, the severity of the harm, and the burden. ie high risk low burden = negligence

Front 73

Negligence SOC and custom

Back 73

this is relevant evidence BUT is not a complete defense

Front 74

Negligence SOC and professionals

Back 74

expected to exhibit the same skill and knowledge as another practitioner in the same community/context

specialist may be held to a higher standard

Front 75

Negligence SOC and physicians

Back 75

Traditionally: physician in the 'same or similar' locality

Modern trend: National standard of care

Must get informed consent: 1. explain the risk of medical procedures UNLESS commonly know, patient is unconscious, patient waives/refuses the information, incompetence, or patient would be harmed by disclosure ie heart attach

Front 76

Negligence Per Se

Back 76

A law or regulatory statute imposes a duty for the protection or benefit of others.

The statue will establish the standard of card and if law broken then the duty was breached

Plaintife must 1. be in the class of people it was intended to protect, 2. the accident must be the type of harm that the statute was intended to protect against, AND 3. the harm was caused by a violation of that statute.

Front 77

Negligence Per Se Defenses

Back 77

compliance with statute was impossible or an emergency justified violation of the statute. Must show compliance would have been even more dangerous that violation of the statute.

WHEN plaintiff also violates or is the only one who violated a statue it counts as comparative or contributory negligence.

Front 78

SOC: Common Carriers and Innkeepers

Back 78

Traditionally: highest duty of care consistent with the practical operation of the business (liable for slight negligence)

Majority of courts today: Common carriers held to a higher standard, Innkeepers liable only for ordinary negligence (not higher standard)

Common Carriers and Innkeepers have a duty to act affirmatively based on the special relationship with passengers and guests.

Front 79

SOC: automobile drivers

Back 79

Some jurisdictions have 'guest statutes' Guests and friends in a car can hold driver liable if they were reckless, grossly negligent, wonton, or willful misconduct.

Many jurisdictions have abandoned quest statutes and apply negligence standard to driver

Front 80

SOC: Bailors and Baileees

Back 80

bailee temporarily takes possession of another's property ie valet

SOC depends on circumstances in the light of which conduct is measured by the standard of reasonable care.

Front 81

SOC: Emergency

Back 81

that of a reasonable person in the same or similar situation

Front 82

SOC: Trespasser

Back 82

Land possessor is obligated to refrain from willful or wonton misconduct, or reckless harm (spring gun use will result in liability)

Front 83

SOC: discovered or anticipated trespassers

Back 83

1. must warn or protect them from hidden danger 2. no duty to warn of natural conditions or artificial conditions that wont cause the risk of death

3. undiscovered trespassers no duty

Front 84

SOC: trespassers ' attractive nuisance' doctrine

Back 84

Possessor of land may be liable to injuries to children trespassing on land IF

1. an artificial condition exists in a place where the owner knows or has reason to know children are likely to trespass, 2. know or have reson to know the artificial condition poses an unreasonable risk of death or serious bodily harm 3. the children, because of youth, do not discover or cannot appreciate the danger, 4. the utility to the land possessor of maintaining the condition is slight compared to the risk of injury AND 5. the land possessor fails to exercise reasonable care.

Front 85

SOC: Licensees

Back 85

enters land with express or implied permission:

Duty to either correct or warn licensees of concealed dangers, no duty to inspect for dangers, and must exercise reasonable care in conducting activities on the land

Front 86

SOC: Invitees

Back 86

someone who comes onto the land for a mutual or joint purpose (ie customer in business)

Duty of reasonable care and it is non delegable (not avoidable through assigning to independent contractor)

Front 87

SOC: landlord/tenant

Back 87

remains liable for injuries in common areas such a parking lot, injuries from hidden dangers about which the landlord did not warn the tenant, injuries from premises that are lease for public use, or injuries from hazard the landlord has agreed to repair

Occupier continues to be liable for injuries arising from conditions within the tenants control

Front 88

SOC: landlard/tenant off premises victims

Back 88

possessor not liable for injuries resulting from natural conditions EXCEPTION falling trees

artificial Conditions: must prevent unreasonable risk of harm o persons not on the premises and must exercise reasonable care in conducting activities on the land.

Front 89

SOC: Res Ipsa Loquitur

Back 89

cases where you only have circumstantial evidence of negligence (ie barrel falling out of warehouse window) will be sufficient

Elements:

1. the accident was of a kind that usually does not occur in the absence of negligence

2. Caused by an agent or instrumentality within the defendants exclusive control AND

3. was not due to the plaintiffs own negligent

MEDICAL malpractice cases- when ie under though surgery and something when wrong but don't know who, courts shift the burden by holding all possible defendants jointly and severally liable unless they can exonerate themselves.

Front 90

Negligence: Causation

Back 90

Plaintiff must show that the breach was the cause of his or her harm. Has two parts Cause in fact and Proximate cause

Front 91

Negligence: Cause in fact

Back 91

'But For' Test: Plaintiff must show that the injury would not have occurred but for the defendant's negligence.

Front 92

Negligence: Cause in fact: Concurrent tortfeasors contributing to an individual injury

Back 92

When the tortious acts of two or more defendants are each a factual cause of one harm, then Joint and Several liability applies.

P can sue either defendant and collect damages

Front 93

Negligence: Cause in fact: Alternative Causation

Back 93

P harm was caused by only one of a few defendants but it cannot be determine which one cause the harm.

Courts will shift the burden of proof to the defendants and Joint and several liability will be imposed on both unless they can show which one of them cause the harm

Front 94

Negligence: Cause in fact: Concert of Action

Back 94

If two or more tortfeasors were acting together collectively and that causes the plaintiffs harm all defendants will be joint and severely liable

Front 95

Negligence: Cause in fact: Loss of chance of recovery

Back 95

If a physician negligently reduces a plaintiff's chance of survival, then that plaintiff can recover. Under this rule, the P's chance of recovery must be less then 50% even prior to the negligent misdiagnosis. (high chance of death with or without the negligent conduct)

Damages will be a partial recover for the last chance of survival measured by the % of you damages that correspond to the likelihood that the D's negligence caused your harm. ie 50% sure D caused your harm you get 50% damages.

Front 96

Negligence: Proximate Cause (scope of liability)

Back 96

R.3rd: Defendant's liability is limited to those harms that result from the risk that made the defendant's conduct tortus (ask is this the kind of harm that made us decide that this behavior is negligent?)

OTHER COURTS: Factors 1. is there a natural and continuous between the cause and effect 2. was one a substantial factor 3. was there a direct connection without too many intervening causes 4. was the cause likely to produce that effect 5. could the d have foreseen the harm 6. was the cause too remote in time

SOME COURTS: combine combine cause in fact and proximate cause and instruct the jury that they must find that the negligence was a substantial factor in bringing about the harm

Front 97

Negligence: Proximate Cause: intervening cause

Back 97

Factual cause that contributes to the harm

Front 98

Negligence: Proximate Cause: superseding cause

Back 98

an intervening cause that breaks the chain of causation.

An unforeseeable intervening cause is a superseding cause with severs the connection

In the case of negligent or criminal conduct of a third party, courts have held that if the intervening conduct is foreseeable then the initial negligent actor should be liable (ie guns left on a playground that someone ends up shooting)

MODERNCOURTS: tend not to focus on intervening and superseding causes

Front 99

negligence: Damages

Back 99

Actual damages: P must prove actual damages/harm. Nominal damages cannot be recovered

Front 100

Negligence: Damages: Economic loss rule

Back 100

P who suffers economic loss WITHOUT any related personal injury or property damage cannot recover in negligence HOWEVER if a p has proven non-economic injury then the p can recover non economic AND economic damages

Front 101

Negligence: Damages: Mitigation

Back 101

P must take steps to mitigate damages or face limitation on damages

Front 102

Negligence: Damages: personal injury

Back 102

1. medical expenses (past and future)

2. pain and suffering

3. lost income and future income

Front 103

Negligence: Damages: Property

Back 103

GR: P may recover the difference between the market value of the property before and after the injury.

Harm to Personal Property: most courts allow recovery of the cost of repairs

Household items: courts often use replacement value as the measure of damages

Front 104

Negligence: Damages: collateral Source Rule

Back 104

Traditionally: payments made to P from outside sources, ie medical insurance, can not be credited against the liability of the tortfeasor AND not admissible at trial.

Modern Trend: most have elimination collateral source rule to avoid double recover

Front 105

Negligence: Damages: Punitive

Back 105

Recoverable if P can show by clear and convincing evidence that the d acted willfully, recklessly, or with malleus. ie IIED

Front 106

Negligence: Damages: Negligent infliction of emotional distress (NIED)

Back 106

GR: P's cannot recover for NIED except for limited circumstances.

Front 107

Negligence: Damages: NIED: Zone of Danger

Back 107

Traditional rule: the P can recover for emotional distress if he was within the zone of danger and feared for his own safety (ie pregnant woman thinks she will get ran over my a team of horses but they narrowly miss her, this fear causes her to have miscarriage she can recover)

Front 108

Negligence: Damages: NIED: Bystander Recovery

Back 108

SOME COURT: bystander can recover for distress if 1. the person injured is closely related to the bystander 2. the bystander is present at the scene, and 3. personally observed the accident

Front 109

Negligence: Damages: NIED: Exceptions to the physical injury requirement

Back 109

cases when a p can recover for NIED

1. a physician misdiagnoses a disease OR

2. a funeral home miss handles a body

Front 110

Negligence: Damages: wrongful Death

Back 110

Action brought by a member of the family (spouse, next of kin or personal representative) for losses suffered as a result of the decedent's death under actions created by state statutes

DAMAGES: include loss of support/income and loss of companionship and society

Front 111

Negligence: Damages: survival Action

Back 111

brought by a representative of the decedents estate on behalf of the decedent claims include damages resulting from personal injury or property damages.

Front 112

Negligence: Damages: Recovery for loss arising from injury to family members

Back 112

Spouses: loss of consortium

Parent-Child: loss of services if child is injured, loss of companionship in wrongful death if child is killed, child may recover for the parents companionship in a wrongful death action

Front 113

Negligence: Damages: Wrongful life or birth

Back 113

Life: Not permitted in most states

Birth: Many states do permit recover ie failure to diagnose a defect in child

Front 114

Vicarious Liability (VL):

Back 114

One person held liable for another's negligence

Front 115

VL: respondent superior

Back 115

Employers are vicariously liable for the employee's torts if they occurred within the scope of employment

Front 116

Direct liability for employees action when

Back 116

Direct negligence action when negligent in hiring and failure to train

Front 117

VL: Detour v. Frolic

Back 117

Detour: employer is liable, ie stop on his or her way

Frolic: employer is not liable (not within the scope of employment) ie abandons work altogether

Front 118

VL: independent contractors

Back 118

employer is not liable

sustentative test: even if someone is described as an independent contractor, court will treat that person as an employee if the employer retains a right of control over the way that employee does the work.

Employer may be liable when 1. inherently dangerous activities 2. non delegable duties ie invite, duty of business to keep premises it safe, duty to comply with safety statutes

Front 119

VL: Business partners

Back 119

partners in a joint enterprise may be liable for each others torts when two or more parties have a common purpose and mutual right of control they may be liable for each others torts that are committed within the scope of the business purpose.

Front 120

VL: Negligent entrustment

Back 120

a person can be directly liable for negligently entrusting a vehicle, gun, or a dangerous device to someone who is not in the position to care for it

Front 121

VL: Parents and children

Back 121

GR: parents are not VL for their minor children's torts

EXCEPTIONS:

1. child commits a tort while acting as an agent for the parent

2. State Statutes provide for liability of parent for act.

3. Parent approves application for child to get their drivers license

Front 122

VL: negligence of parents

Back 122

may be liable for their OWN negligence with respect the child's conduct. Parent has a duty to exercise reasonable care to prevent a minor child from harming a third party, provided the parent has the ability to control the child and knows or should have known of the necessity for exercising such control

Front 123

VL: 'Dram Shop' Liability

Back 123

limit on liability of bars and bartendrs for injuries caused when people drink too much and injure third-parties when direct (serve to much) and VL

Front 124

VL: who has immunity

Back 124

Federal Government, State Governments, and Government officials

Front 125

VL: immunity: Federal Government

Back 125

Federal Tort Claims Act waived immunity of the Federal Government for tort actions

EXCEPTIONS: immunity still exists for 1. certain enumerated torts (is assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, and interference with contractual rights) 2. discretionary functions (planning/ decision making) 3. a government contractor if the contractor conformed to government specifications and the government knew about any known dangers and 4. Traditional government activities (ie tax collection, admiralty, military activities, etc)

Front 126

VL: Immunity: State Government

Back 126

most have waived immunity to some extent

Front 127

VL: Immunity: Government officials

Back 127

immunity applies if preforming a discretionary function, as long as those are done without malice or an improper purpose. NO immunity for administerial act ie driving

WESTFALL ACT: precludes all liability on the part of the federal employee under state tort law

Front 128

VL: Intra Family Immunities: Parent/Child

Back 128

Traditionally: parent were immune from child tort claims

Recent trend: limited parental immunity

Courts allow liability but NOT in 'core' parenting activities. ie can sue parent for injuries arising from automobile accidents, sexual abuse, intentional tortious conduct, or when the parent is acting in a duel capacity

Front 129

Joint and Several Liability

Back 129

Pl can collect all of his damages from either d when more than one tortfeasor for a single harm.

Applies when 1. the tortious acts of two or more tortfeasors combine to produce one injury/harm 2. when two or more tortfeasors act in concert 3. alternative liability (small # of defendants) 4. res ipsa loquitur in medical malpractice cases

Front 130

J&SL: Contribution

Back 130

When two or more tortfeasors are subject to liability to the same P and one has paid more than his fir share then the tortfeasor can sue the other for contribution

CALCULATTIONS: different by Jx either 1. comparing how far each tortfeasor departed from the standard of care or 2. pro rata allocation

Front 131

J&SL: Pure several Liability

Back 131

available in some Jx: each tortfeasor is only liable for his own share of the harm

Front 132

J&SL: Indemnification

Back 132

Shifts the entire loss from one party to the other Available when there is a prior agreement between the parties, there is equitable indemnification- a substantial difference between the harm worthiness of the two parties, requiring a shifting of the loss from one to the other, there is significant additional harm caused by another tortfeasor OR SL, each supplier has indemnification against previous suppliers.

Front 133

Negligence: Defenses

Back 133

1. Contributory Negligence

2. Comparative Negligence

3. Assumption of the Risk

Front 134

Negligence: Defenses: Contributory Negligence

Back 134

Traditionally: P's failure to exercise due care would eliminate any change of recovery

Front 135

Negligence: Defenses: Contributory Negligence: Last clear chance Doctrine

Back 135

if the D had the last clear chance t avoid the harm and failed to do so the P could still recover.

HELPLESS PLAINTIFF: due to own negligence was in peril from which he cannot escape D is liable if he knew or should have know of the P's peril and could have avoided harming the P

INATTENTIVE PLAINTIFF: peril due to own inattention, D is liable only if he had actual knowledge of peril

Front 136

Negligence: Defenses: Comparative Negligence

Back 136

almost all Jx. apportion of damages between the D and the P based on their relative degrees of fault

Front 137

Negligence: Defenses: Pure Comparative Negligence

Back 137

P contributory negligence is NEVER a complete bar to recovery. P's damages are reduced by the extent to which the plaintiff contributed to the harm

Front 138

Negligence: Defenses: Modified comparative Negligence

Back 138

Majority of Jx have adopted

if the P is less at fault that the D P recovery is reduced by his % of fault

IF the P is more at fault than the D P cannot recover

most jx P and the D are equally at fault, P recovers 1/2 of his total damages minority of jx say if equal P recovers nothing

Front 139

Negligence: Defenses: MCN: multiple defendants

Back 139

P degree of negligence is compared to the negligence of all of the other defendants combined

Front 140

Negligence: Defenses: Imputed Contributory Negligence

Back 140

Limits one persons recover because of another persons negligence, doctrine is disfavored and does not apply 1. a married P whose spouse was contributory negligent in causing the harm in a suit against a third party, a child P whose parents negligence was a contributing cause of harm in a suit against a third party, an automobile passenger suing a third party driver if the negligence of the driver of the car in which the passenger was riding also contributed to the accident OR and automobile owner in an action against a D driver for negligence when the driver of the owners car also was negligent

Front 141

Negligence: Defenses: Assumption of the risk

Back 141

P has knowingly and willingly accepted a risk of harm and as a result cannot recover

Front 142

Negligence: Defenses: AofR: exculpatory clauses in Contracts

Back 142

GR: parties can contract to disclaim liability on negligence. HOWEVER: court hesitate to enforce IF: they disclaim liability for reckless, wonton misconduct, or gross negligence, a gross disparity of bargaining power, party seeking to enforce offers services of great importance to the public ie hospital, or the provision is subject to contract defenses ie fraud duress.

Generally: common carriers, innkeepers, and employers cannot disclaim liability for negligence

Front 143

Negligence: Defenses: AofR: Athletic Events (participants and spectators)

Back 143

assume the risk fo certain injuries and accidents that ar inherent in the game or activity, D's can help by posting warning signs etc

Front 144

Negligence: Defenses: Consent v. Assumption of the Risk

Back 144

Assumption of the risk applies to negligence, while consent applies to intentional torts.

Front 145

Negligence: Strict Liability

Back 145

P does not need to show D was negligent

1. abnormally dangerous activities

2. wild animals

3. defective products

Front 146

Negligence: Strict Liability: Abnormally dangerous activities (ADA)

Back 146

Factors:

1. Does it create a foreseeable and highly significant risk of physical harm EVEN when reasonable care is exercised 2. What is the gravity of the harm resulting from the activity 3. does it have great value to the community AND 4. is the activity appropriate to the location (not in R.3d)

Front 147

Negligence: Strict Liability: ADA: Scope of Risk

Back 147

limitation on liability: Only strictly liable for the harm the flows from the risk that made the activity abnormally dangerous ie your explosive truck blows up, SL, you run someone over with your explosive truck not SL.

AIRPLANES: traditional rule SL Modern trend: negligence law

Front 148

Negligence: Strict Liability: Rule of Rylands v. Fletcher (broad rule)

Back 148

bursting reservoir case:

Broad Rule of SL (not followed): If D, for his own purpose, brings on his land and collects and keeps there anything that is likely of doing mischief, IF it escapes then he must keep it as his peril and if he doesn't do so then he is liable for all damages which is the natural consequence of its escape

Front 149

Negligence: Strict Liability: Rule of Rylands v. Fletcher (narrow rule)

Back 149

Majority of Jx follow that there should be SL for bursting reservoirs

Front 150

Negligence: Strict Liability: Wild Animals

Back 150

A species or class is not by custom devoted to the service of mankind in the place where he is being kept

Front 151

Negligence: Strict Liability: Dogs

Back 151

some jx: 'dog bite' statutes which provide that owners are liable if their dog bites someone

Most jx: you are only liable if you were negligent OR if you had reason to know of your dogs (or domestic animals) dangerous propensities.

Front 152

Negligence: Strict Liability: Domestic animals

Back 152

Generally not SL however, if the owner knows or has reason to know of the domestic animals dangerous propensities and the harm results from those dangerous propensities then they are liable

Front 153

Negligence: Strict Liability: owners animals on other land

Back 153

Any animal (other than household pet) are liable for reasonably foreseeable damage caused by his animal while trespassing.

EXEPTION: if the owner of a household pet knows or has reason to know the pet is intruding on the other property then they are liable also

Front 154

Negligence: Strict Liability: P's conduct as relates to the animal

Back 154

P's contributory negligence may reduce recover in comparative fault states However, it will not eliminate recovery in contributory negligence jx

If the P is aware of he dangerous propensity of an animal and taunts the animal he may be prohibited from recovering un the doctrine of assumption of the risk

Front 155

Negligence: Strict Liability: defenses

Back 155

Contributory negligence jx: contributory negligence is not a defense to strict liability

Comparative negligence jx: minority believe comparative negligence of P should reduce his recovery even when SL.

assumption of the risk: knowingly and willingly, complete bar on recovery in SL case.

Statutory privilege: party performing an essential public services is exempt from SL however still could be liable for negligence

Front 156

Negligence: Products Liability lawsuits

Back 156

1. negligence (P must prove the particular D was negligent)

2. strict liability

3. contract/warranty cause of action

Front 157

Negligence: Strict Products Liability

Back 157

Anyone in the business of selling a product hat is defective can be liable: the manufacturer, distributor, or seller of a defective product may be liable for harm that is caused by the product being defective.

Front 158

Negligence: Strict PL Elements

Back 158

The P must show:

1. the product was defective (ie manufacture, design, or failure to warn)

2. The defect existed at the time the product left the D's control AND

3. the defect caused the P's injury

Front 159

Negligence: Strict Products Liability: Manufacturing Defect

Back 159

The product deviates from what the manufacturer intended

TEST: does the product conform to the D's own specifications? If it deviates from intended design and that deviation make it more dangerous and causes your harm then the D is liable even if he acted reasonably

Front 160

Negligence: Strict Products Liability: Design Defect

Back 160

TWO TEST:

ONE: consumer expectation test. Product is defective in design if it is less safe than contemplated by the ordinary consumer.

TWO: risk utility test: product is defective in design if it could have been made safer by additional safety features.

P must prove: 1. there are reasonably, feasible, safety features / alternative designs that would have made the product safer thus failing to include those features makes the product defective

Front 161

Negligence: Strict Products Liability: Failure to warn

Back 161

Product does not include an adequate warning; most important when you cannot chage the design without making the product ineffective ie pills

Front 162

Negligence: Strict Products Liability: Failure to warn 'Learned intermediary' rule

Back 162

Deals with prescription drugs:

GR: manufacturer does not have a duty to warn the consumer directly but satisfies that duty by warning the doctor who prescribes the drug

EXCEPTION: Manufacturer is aware that the drug will be given directly without the personal intervention of doctors or health-care providers ie birth control pills

Front 163

Negligence: Strict Products Liability: Inference of Defect

Back 163

Circumstantial evidence can be sufficient if the injury is the kind that ordinarily would not result absent a product defect and other causes can be eliminated

Front 164

Negligence: Strict Products Liability: P's and D's

Back 164

P's can be anyone foreseeably injured by the defective product (ie purchasers, subsequent users, and bystanders)

D's must be in the business of selling (ie manufacture, distributor and retailer) can not be a casual seller to be SL for defective product

Front 165

Negligence: Strict Products Liability: Damages

Back 165

P can recover for personal injury or property damage

claims for purely economic lass cannot be brought under SL must be brought under breach of warranty theory

Front 166

Negligence: Strict Products Liability: Defenses Comparative Fault Jx v. Contributory Negligence Jx

Back 166

comparative Fault Jx: P's own negligence reduces recovery in a SPL action. Misuse or modification will reduce but not eliminate recovery

Contributory Negligence Jx: NOT a defense when the P is negligent in failing to discover the defect IS a defense if the P unreasonably proceeded in the face of a known defect. Product misuse if unforeseeable will completely bar recovery

Front 167

Negligence: Strict Products Liability: Defenses: Assumption of the risk

Back 167

complete bar to recover if knowingly and willingly accepted the risk HOWEVER in comparative fault Jx courts hesitate to make certain assumptions of risk and only partial bar proportionate to the degree of fault

Front 168

Negligence: Strict Products Liability: Defenses: Substantial change in product

Back 168

This is a superseding cause that cuts of liability

Front 169

Negligence: Strict Products Liability: Defenses: Compliance with Government Standards:

Back 169

Compliance is evidence, but not conclusive evidence that the product is not defective EXCEPT a state tort claim may be preempted. IF federal law 1. congress explicitly indicated that it should be preempted in the statute, 2. congress has comprehensively regulated the filed OR 3. it would be impossible for the manufacturer to comply with both the federal regulation and the requirements of state tort law.

Front 170

Negligence: Strict Products Liability: Defenses: State of the Art Defense

Back 170

in a case alleging failure to warn or design defect, the manufacturer can introduce evidence about the level of scientific and technical knowledge at the time the product was manufactured or distributed ALTHOUGH not a complete defense it is relevant evidence

Front 171

Negligence: Strict Products Liability: Defenses: Disclaimers or Limitations by Seller

Back 171

generally does not bar or reduce a valid products liability claim

Front 172

Defamation:

Back 172

P may bring an action for defamation if the D 1. made a defamatory statement 2. that is of or concerning the P 3. the statement is published to a third party who understand the defamatory nature and 4. damaged the P's reputation.

The statement must be false

Front 173

Defamation: constitutional requirements

Back 173

IF matter of public concern, P must show that the D was at lest negligent with regard to the falsehood

IF the P is a public official or public figure the P must prove actual malleus

Front 174

Defamation: Defamatory Language

Back 174

Language that diminishes respect, esteem, or goodwill toward the P or deters others from associating with the P

Front 175

Defamation: 'of or concerning'

Back 175

a reasonable person must believe the defamatory language referred to this particular P. IF it refers to a group, a member of the group can only bring an action if the group is so small that the matter can reasonably be understood to refer to that member.

Front 176

Defamation: Publication

Back 176

Must be communicated to a third party who understood the content. A person who repeats a defamatory statement may be liable for defamation Federal Statute provides that internet service providers are not publishers for purposes of defamation

Front 177

Defamation: Falsehood

Back 177

the statement must be false and truth is traditionally an absolute defense However today, in most states, falsehood is an element of the claim.

Opinions are only actionable if the person stating it implies that they have objective fact to support it

Front 178

Defamation: P is Public official

Back 178

must show the statement is false and the statement was made with actual malice

actual malic: knowledge that the statement was false or acting with reckless disregard with regard to the truth of the statement.

Front 179

Defamation: P is Public Figure

Back 179

Public figures must show actual malice to recover for defamation

actual malic: knowledge that the statement was false or acting with reckless disregard with regard to the truth of the statement.

Front 180

Defamation: P is Private individual

Back 180

1. matter of public concern: P must show D was at least negligent as to the truth

2. not a matter of public concern: no constitutional requirements but most states require at lest negligence

Front 181

Defamation: Libel

Back 181

Defamation that is written, printed, or otherwise recorded in a permanent form (ie tv and radio broadcast)

P must only prove general damages

Front 182

Defamation: Slander

Back 182

Defamation by spoken work or gesture, or any form other than libel.

P must prove either 1 special damages OR 2. show concrete harm

Front 183

Defamation: Slander per se

Back 183

1. P has committed a serious crime or a crime of moral turpitude 2. P is unfit for his or her trade or business 3. P has a lonesome disease 4. P has committed severe sexual misconduct

Front 184

Defamation: Damages

Back 184

1. public official or public figure, actual damages ie out of pocket, reputation, etc

2. private individual and matter of public concern actual damages

3. private individual but NOT a matter of public concern, general damages including presumed damages without proving actual malice

Front 185

Defamation: Defenses

Back 185

1. Truth is an absolute defense

2. Consent is an absolute defense

3. Privileges are an defense

Front 186

Defamation: Defenses: Absolute Privileges

Back 186

Four categories- statements made:

1. in the course of judicial proceedings

2. in the course of legislative proceedings

3. between husband and wife

4. in required publication by radio and TV ie statements by a political candidate that a station must carry and may not censor

Front 187

Defamation: Defenses: Conditional Privileges

Back 187

Statement is mad in good faith pursuant to some duty or responsibility

1. in the interest of the defendant ie defending your reputation

2. in the interest of the recipients of the statement or

3. affecting some important public interest

(the person had a good reason or a duty to say something and a good faith belief in the truth of the statement ie co to hire someone you tell them to hold off because of Z and Z is false)

D must have made the statement within the appropriate bounds of the privilege

Front 188

Invasion of Privacy:

Back 188

Fours causes of action

1. misappropriation of the right to publicity

2. unreasonable intrusion upon P's private affairs

3. False light

4. Public disclosure of private facts

Front 189

Invasion of Privacy: Misappropriation of the Right to Publicity

Back 189

P has the right to decide if someone can use their name or likeness for commercial purposes must be 1. unauthorized appropriation for their own advantage 2. without your consent, 3. you have been injured

Front 190

Invasion of Privacy: Unreasonable intrusion on P's private Affairs

Back 190

D's intrusion on P's private affairs, solitude, or seclusion in a manner that is objectionable to a reasonable person

Front 191

Invasion of Privacy: False Light

Back 191

Similar to defamation and sometimes can be both! putting together half-truths that convey a false impression subject to rules of defamation

Front 192

Invasion of Privacy: public disclosure of private facts

Back 192

D' gives publicity (more than just publication) to a matter concerning the private life of another and the matter publicized is highly offensive to the reasonable person and not of light concern to the public (almost impossible to win because court broadly define legitimate public concern)

Front 193

Invasion of Privacy: Defenses

Back 193

Truth is NOT a defense to invasion of privacy!

same defenses of absolute and qualified privileges under defamation apply

Consent is a defense however mistake as to consent can negate the defense

Front 194

Intentional Misrepresentation: Elements

Back 194

False representation

1. must be about a material fact 2. deceptive or misleading statements 3. can arise through concealing a material face 4. generally no duty to disclose material facts to others

(may be an affirmative duty if there is a fiduciary relationship, the other party is likely to be misled by statement the D made earlier OR the D is aware the other party is mistaken about basic fact of the transaction and custom suggest that disclosure should be made)

Front 195

Intentional Misrepresentation: Scienter

Back 195

D know the representation is false and acted with reckless disregard for its false hood

Front 196

Intentional Misrepresentation: Intent

Back 196

D must intend to induce a P to act in reliance on the misrepresentation

Front 197

Intentional Misrepresentation: Causation

Back 197

the misrepresentation must have cause the P to act or refrain from acting. P must have actually relied on the misrepresentation

Front 198

Intentional Misrepresentation: Justifiable Reliance

Back 198

NOT justifiable if the fact are obviously false or it is clear that the D was stating a non professional opinion

Front 199

Intentional Misrepresentation: Damages

Back 199

P must prove actual, economic, pecuniary loss. nominal damages are NOT available

Front 200

Negligent Misrepresentation: Elements

Back 200

the D usually an account firm or other supplier of commercial information who provides false information to a P as a result other the D's negligent in preparing the information

My be liable for pecuniary damages caused by that P's justifiable reliance ONLY if there is either 1. a contractual relationship with the D or 2. the P is a third party known by the D to be a member of the limited group for who benefit the information is supplied AND the information must have been relied upon in a transaction the supplier of information intended to influence or at lest knew that the recipient of the information intends to influence

Front 201

Negligent Misrepresentation: Defenses

Back 201

Negligence defenses can be raised ie contributory negligence, comparative fault.

Front 202

Negligent Misrepresentation: Damages

Back 202

Can recover out of pocket and consiquicial damages in the negligent representation is proven with sufficient certainty

Front 203

Intentional interference with business relations: Elements

Back 203

1. D must know of the contractual relationship between the P and the third party 2. D intentionally interfered with the contract resulting in the breach and 3. the breach caused damages to the P

Front 204

Intentional interference with business relations: Nature of Contract

Back 204

CANNOT be terminable at will and MUST be valid

Front 205

Intentional interference with business relations: Interference with performance other than inducing breach

Back 205

D may be liable when he prevents a party from fulfilling its contractual obligation of substantially adds to the burden of performance. D's conduct must exceed fair competition and free expression

Front 206

Intentional interference with business relations: Justification

Back 206

if motivated by considerations of health, public safety, or public morals

Front 207

Intentional interference with business relations: Misappropriation of Trade Secrets

Back 207

1. P owns a valid trade secret that is not generally known

2. P has taken reasonable precautions to protect it AND

3. D has taken the secret by improper means

Front 208

Injurious Falsehoods: Trade Libel

Back 208

Statements that injure a P's business or product. Proof of special damages is required(only pecuniary damages are recoverable) The statement does not need to be defamatory

MUST PROVE: publication of a derogatory statement, related to the quality of the P's business or products, that damages the business relationship

Front 209

Injurious Falsehoods: Slander of title

Back 209

False statements that call into question a P's ownership of real property.

P must prove publication of a false statement, derogatory to the P's title with milieus causing special damages diminished the value in the eyes of third parties

Front 210

Wrongful Use of the Legal System: Malicious Prosecution

Back 210

a person intentionally and maliciously institutes or pursues a legal action for an improper purpose without probable cause and the action is dismissed in favor of the person against whom it was brought

Damages proximately cause by the conduct including legal expenses, loss of work time, loss of reputation and emotional distress

Prosecutors enjoy absolute immunity to the tort but does not protect them from criminal prosecution

Front 211

Wrongful Use of the Legal System: Abuse of Process

Back 211

P must prove D has set in motion a legal procedure in proper form but has abused it to achieve some anterior motive some willful act perpetrated in the use of the process which is not proper in the regular conduct of that proceedings and conduct cause the damage