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205 Cards in this Set
- Front
- Back
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Two Broad Concepts (Intentional Torts) |
In the world of intentional torts, there are no incapacity defenses
All intentional torts require intent |
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Incapacity defenses (intentional torts)
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Individuals who lack capacity in other branches of the law – crazies, drunks, children
Any answer you see that D is not liable because he lacks capacity is wrong |
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Doctrine of Transferred Intent
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If a defendant intends to commit any intentional tort against any victim, that defendant will be liable even though a different tort results and a different victim is impacted
Called “intent” but it’s really just an accident. It’s legal fiction but not testable legal fiction |
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The seven intentional torts
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Battery
Assault False Imprisonment IIED Trespass To Land Trespass To Chattels Conversion |
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Battery
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Intent to cause
Harmful or Offensive Conduct The Conduct Must be with the plaintiff’s person |
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Harmful or Offensive Contact (Harmful)
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Pretty much self-explanatory—a contract that impairs the body
1. Makes you bleed 2. Breaks a bone 3. Sends you to the hospital 4. Makes you dead 5. Usually not on the bar: too obvious, too easy |
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Harmful or Offensive (Offensive)
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In order to determine whether a contact is offensive – you must decide whether a contract violates a reasonable sense of personal dignity
1. Would be unpermitted by a normal person 2. We do not honor eccentricities (the tap on the shoulder) 3. Touching of the hair might win, or any other touch that lacks common sense or social awareness, could be sexual, could not be. |
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Contact with the plaintiff’s person
1. |
Includes anything that the plaintiff is holding or touching
2. Object has to be connected to the person – if the object is not connected to the person even if it’s inanimate, not battery 3. Contact does not have to be instantaneous (poison someone’s lunch earlier in the day) |
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PA Lack of Consent to Surgical Procedures
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Operating on a patient without the patient’s informed consent is considered a battery in PA. To obtain an informed consent to a surgical procedure a surgeon must provide a description of the procedure and disclose risks and alternatives that a reasonable person would consider material to the decision of whether to undergo the treatment
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Assault
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D must place the P in apprehensions of immediate battery
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Assault (Apprehension)
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Apprehension doesn’t mean fear – just knowledge.
D doesn’t have to fear for his safety to require knowledge – a shrimpy guy threatens a muscular guy – still assault because it’s not fear we’re into – it’s knowledge D must not create fear, just have the inherent ability to do something |
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Assault (Apprehension) – the “Unloaded Gun Problem”
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If the P knows the gun is empty he will lose, but if he doesn’t and the gun is unloaded, he will recover.
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Assault (Of an Immediate Battery)
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Words alone lack immediacy
1. A pure verbal threat unaccompanied by any conduct is not enough to make out an assault 2. There has to be conduct – on the bar – overwhelmingly – conduct is display of a weapon 3. Even though I have threatening conduct – word can negate immediacy – don’t ignore accompanying words When can words not show immediacy? 1. “If you weren’t my friend I’d beat the heck out of you!” 2. “I’m gonna get you…tomorrow.” |
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False Imprisonment
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Must Commit and Act of Restraint
P Must be in Bounded Area No reasonable |
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False Imprisonment (act of restraint)
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1. Threats are sufficient (the stereotype is normally a physical restraint – doesn’t have to be the case. A credible threat is sufficient (“you try to leave this room and I’ll shoot you”) or non-explicit threat
2. An omission or failure to act by D can be an act of restraint if D had pre-existing duty (e.g. if you have an obligation to help someone move around – airline has obligation to help someone move) 3. An act of restraint only counts if P knows of or at the time or suffers harm as a result – PA follows this too. If you are completely unaware – no good. |
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False Imprisonment (P Must be Confined in a Bounded Area)
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An area is not bounded if there is reasonable means of escape that a P can reasonably discover.
1. You’re not locked in if you can get out 2. Look to reasonable – not going to be reasonable if only way out is: Dangerous Disgusting Humiliating Hidden |
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PA Shoplifting Rules
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Detentions are privileged. Officer, merchant, or merchant’s employee must have probable cause to believe that retail theft has occurred or is occurring and that the person detained has committed it. Suspect may be detained in a reasonable manner for a reasonable time either on or off the premises in order to
1. Require suspect to identify himself and afford time to verify authentication 2. Determine whether suspect has unpurchased merchandise in his possession or 3. Inform peace officer or institute criminal proceedings against the suspect 4. Whether probable cause existed is a question of law for the court |
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Intentional Infliction of Emotional Distress
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Defendant must engage in outrageous conduct
Plaintiff must suffer emotion distress |
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IIED level of intent
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Does not require that Dacted intentionally – it is enough that D acted recklessly – of the seven torts this is the only one with intentional in its name and it does not require intentional conduct
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IIED – Outrageous Conduct (generally)
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Not every deliberate conduct is a tort – only the method produced by outrageous conduct
Not always a tort to deliberately distress someone Conduct is outrageous when it exceeds all bounds of decency tolerated in civilized society |
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IIED Outrageous Conduct (two negative rules)
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It is not outrageous to simply insult someone – insults alone are not outrageous
If someone is exercising First amendment rights – that is not outrageous |
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Three Hallmark Rules
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1. Conduct is continuous – might be a closer call if the conduct happened only once – would probably go to the jury. But if a person kept repeating it to you – that would become outrageous
2. If the defendant is a common carrier or an innkeeper it is easier to label conduct as outrageous – still has to be intentional or reckless though 3. P is a member of a fragile class of persons – three fragile classes Little children Elderly Women Pregnant women (obvi D has to know she’s pregnant) |
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IIED – Outrageous Conduct (Eccentricities)
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Law generally doesn’t recognize eccentricities unless D knew of P’s particular fears. It is always outrageous to target someone’s emotional weak spot
Always outrageous to exploit plaintiff’s fears (e.g. rattlesnake) |
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IIED – Severe Emotional Distress
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There is no specific type of evidence that the P must offer to prove this.
Don’t have to show that you missed days at work or prove that you are on medication or that you saw psychiatrist, etc. – you can show them if they’re true but you don’t have to prove this To test on this bar examiners will probably negate the element in the body of the problem (e.g. Tricia was “mildly annoyed) |
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Trespass to Land
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D must commit a physical invasion of P’s property
P must be the possessor of the land |
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Trespass to Land (Physical Invasion)
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Two ways to satisfy
1. Enter Property D does not need any knowledge that he crossed the boundary line The intent does not relate to awareness that he crossed the boundary line – just the intent to walk (law says – tough luck, buy a map) If it’s not intentional – not a trespass (e.g. car steering goes out or something – not trespass) 2. Propel something on to land NOTE: Invasion must be physical – projecting intangible obnoxious forces is not a trespass (sight, sound, smell) |
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Trespass to Land (P Must be Possessor)
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P does not have to own the land, in fact, P will not have claim even if he’s not the owner of the land (rentors have a claim)
Air above and soil below are trespassers provided they are at a reasonable distance from the surface (commercial airliner probably too high) |
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Trespass to Chattels/Conversion (Both Involve)
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Intentional interference with plaintiff’s personal property
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Trespass to Chattels/Conversion (What is Personal Property?)
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Personal property is all your stuff.
Everything you own EXCEPT land and building 1. Vehicles 2. Bicycle 3. Motorcycle 4. Car 5. Clothing, accessories, hat, glove, scarf |
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Trespass to Chattels/Conversion - A D can interfere with your property in either of two ways
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Deliberately Damage
Taking it away form you – depriving you of possession |
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Trespass to Chattels/Conversion (Are the private civil remedies for…)
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Difference between them is the degree of interference
If the degree is relatively minor – appropriate COA is trespass to chattels If degree is significant – the appropriate cause of action is conversion |
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Trespass to Chattels/Conversion
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Distinction is important because of the remedy.
If conversion – P can recover full value of the asset Conversion is forced sale because D has to pay the full price of the object You break it you buy it |
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Consent
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1. Did P have legal capacity?
2. If so – two types of consent? |
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Consent (Did the P have legal capacity)
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The rule is the opposite of the rule concerning who can be held liable for an intentional tort
You NEED capacity to consent but you DON’T NEED capacity to be liable for an intentional tort But children can agree to age appropriate behavior Once you get to 16,17, 18 close to adult consent if not identical |
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Consent (Express Consent)
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“Hey Mike, come on in!”
Exception: Void if through duress or fraud One night stand – consent |
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Implied Consent
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Two subcategories
Implied consent from custom or usage Defendant’s reasonable interpretation of P’s objective conduct |
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Implied consent (Implied consent from custom or usage)
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If P goes to a place or engages in activity where invasions are routine – the assumption is that you consent to those invasions
Very common example is when you play sports – when you play football, you consent to getting knocked down. No false imprisonment for being in a hockey penalty box |
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Implied consent from custom or usage (D’s Reasonable Interpretation of P’s objective conduct)
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We are allowed to read in the situation and make common sense inferences
Body language consent Doctrine of consent is based on reasonableness and therefore is not important to note and understand that this does not encompass date rape or anything close to it |
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Consent (Scope)
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If you exceed it – you are liable for tort.
E.g. giving a patient a nose job while under surgery |
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PA mutual consent
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Parties involved in combat by mutual consent may recover actual but not punitive damages from eachother
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Self Defense/Defense of Others/Defense of Property
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Turns on two tests
Timing Accuracy |
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Self Defense/Defense of Others/Defense of Property (Timing)
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D can only invoke this priv. if they are responding to a threat that is imminent or in progress
Ya gotta act in real time – in the heat of the moment No revenge – no retaliation (can’t wait a day to slap someone back) |
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Self Defense/Defense of Others/Defense of Property (Accuracy)
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D will only have a protected privilege if he has reasonable belief that the threat is genuine
A reasonable mistake does not defeat the privilege – if the jury thinks you made a reasonable mistake you will indeed have a defense |
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Self Defense/Defense of Others/Defense of Property (Proportion of Force)
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D may only use the amount of force necessary to the threat involved – if you use excessive force that is a tort (rule of proportionality/necessity/symmetry)
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Self Defense/Defense of Others/Defense of Property (Life Threatening Force)
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If faced with life threatening force you in turn can use deadly force
1. You can also shoot the assailant if they’re about to shoot an innocent party 2. Deadly force is never allowed to protect property 3. You can’t use deadly mechanical devices to protect property either |
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PA deadly force
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Follows modern trend – imposes a duty to retreat before using deadly force unless owner is
In his home or In his place of work and the assailant is not a co-worker |
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Necessity Doctrines (in general)
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Only applies to the property torts
When we’re dealing with – trespass to land, trespass to chattel, conversion |
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Public Necessity
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When D invades P’s property in an emergency to protect the community as a whole, in an emergency to protect the community as a whole or a significant group of people
E.g. Blowing up a house or car to save town from an oil fire NOTE: this is an absolute defense. We do not want the savior to hesitate. RATIONALE: Property can be saved because it can be insured |
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Private Necessity (generally)
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Arises when a D invades P’s property in an emergency to protect an interest of his own
That interest could be the D’s own physical safety or it could be to protect his own property This D by definition is not an altruist. There are legal consequences (next card) |
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Private Necessity (three legal consequences)
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1. D remains liable for actual damage done to property
2. D – no liability or punitive damages imposed for his torts 3. As long as the emergency continues – the P property owner cannot throw the D off his land – “you have the right of sanctuary” |
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Defamation (Elements)
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Defendant must make a defamatory statement that specifically identifies the P
D must publish aht statement P may have to prove special damages PA: Fault |
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Defamatory Statement (generally)
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Statement is defamatory if it tends to cast a negative light on interpretation
Usually very self-evident if the statement adversely affects reputation “Someone is a child molester” “someone is embezzling” Must specifically identify the plaintiff Can only commit the tort of Defamation against a living person |
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Defamatory Statements (minor tricky rules)
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Name calling is not defamatory
Generally you need a statement that is a representation of fact – can also be opinion if it implies possession of factual basis (if reasonable people would interpret it to be a veiled representation of fact – “you’d be crazy to get this attorney”) |
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Defamatory Statement (“Must specifically Identify the Plaintiff”)
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1. Can also identify the position
2. If a statement refers to a group of people – usually defamatory if it’s a small group but not a large group |
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In the United States you can only commit the tort of Defamataion against…
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a living person. P has to be alive at the time the statement was made
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Defamation (publication)
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1. Things said to a person alone in private cannot hurt reputation
2. Publication turns out, however, to be de minimus. D must share defamatory statement with ONE PERSON – not the P, and element is satisfied. Has nothing to do with actual publication of newspaper – obviously though the more people you tell the more harm done 3. Publication doesn’t have to be deliberate – can be careless, inadvertent or negligent (e.g. misaddressing an envelope) |
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Defamation Damages (generally)
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In order to prove whether a D can prove damages – you have to know what kind of defamation cases you’re dealing with
1. Libel 2. Slander |
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Libel
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Libel is any for of defamation that is written down or otherwise embodied in some permanent format (filed or taped)
Damage is presumed |
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Slander
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Defamatory statement is oral or spoken
Damages are subdivided – certain slanders have more than others, like slander per se |
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Slander per se
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Slander per se is treated the same as libel with regards to the damage comcept
You get the jury on two elements – damage is presumed Four categories – inclusive list – very specific 1. Statement relating to plaintiffs business or profession 2. Statement that committed a crime of moral turptitude (ambiguous phrase – thievery, dishonesty, income tax fraud, embezzlement, homicide violent armed assault, petty crimes may not qualify e.g. drug possession) 3. Statement imputing unchastity to a woman (chastity means abstinence for sexual activity to woman – says that she’s at all sexually active before she’s married – depends on the community of whether this is harmful to reputation) 4. Statement that the P suffers from a loathsome disease (leprosy, venereal disease) |
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Not within slander categories
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Statement that a man is promiscuous
Damages must be economic in nature – not solely social harm |
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PA’s List for Slander Per Se
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Statements imputing shortcomings incompatible with P’s business trade, profession or office
2. P has a loathsome disease 3. Words imputing indicitable criminal offense 4. Allegations of serious misconduct |
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Defenses to Slander
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Consent
Truth Affirmative Privileges 1. Absolute privileges 2. Qualified privileges |
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Defenses to Slander (Consent)
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Same rules as above
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Defenses to Slander (Truth)
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D can always offer evidence that the statement made is factually accurate
Because it’s an affirmative defense – the defendant bears the burden of proof |
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Defenses to Slander (Absolute Privileges)
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Arise on the identity of the D. Three types
1. Spouses Communicating with each other (even if there’s been a publication – you can say whatever you want to your spouse) 2. Officers of the three branches of government engaged in official duties (in judicial area – lawyers and witnesses are considered officers of the judicial branch) 3. Members of the media for reports of public proceedings |
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Defenses to Slander (Qualified Privilege)
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Arises based on the reason for the statement, not based on who said it, but for why it was said
Types: 1. When there is a public interest encouraging candor. Open-ended, but some examples – statements made to police or officers, letters of recommendation or other forms of reference D must observe two conditions: 1. The defendant must speak in good faith 2. That means the defendant must have a reasonable belief in the truth of statement (if you use it to spread lies – you do not have a privilege) |
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Public Concern Case (Defamation - Defined)
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When a D’s alleged defamatory statement relates to a matter of public concern there are additional requirements before a P can win a defamation case ( must prove two extra elements)
Matter of public concern is something we count as generally newsworthy – a politician is taking bribes, an athlete is taking performance enhancing drugs |
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Public Concern Case (Two Elements to Prove)
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That the allegation is false
Fault (also sometimes called MALICE) |
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Two Elements of Public Concern Case (show that allegation is false)
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Truth is now presumed, it is no longer an affirmative defense. WE ASSUME that the newspaper told the truth until the mayor can show it was a lie. In PA – the D has the burden of proving truth
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Two Elements of Public Concern Case (MALICE)
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Prove that D made the statement in other than good faith. Wasn’t honest and good faith, something culpable and despicable about it.
If D is a public figure – we have to show that the D knew the statement was false and made it anyway OR was reckless in investigating the truth of the statement If D was a private figure – we need only show negligence (same if it’s matter of public or private concern) |
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PA Public Concern Add-On
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P may introduce evidence that D republished an allegedly defamatory statement after a complaint had been filed alleging the statement was defamatory. Evidence may help establish that D acted with malice in the original publication
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Appropriation
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To appropriate or take something that doesn’t belong to you
Occurs when the D uses P’s name or picture for a commercial advantage (obvious example – put major league dude on box of cereal without permission) Two cautions 1. Newsworthiness exception (magazine puts someone on the cover related to news – you are allowed to make newsworthy use) 2. This claim is not limited to celebrities |
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Appropriation v. Right to Publicity
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Appropriation is primarily about the emotional disturbance you feel when your picture is plastered around – right to publicity deals more with an economic concern
Appropriation is the origin of the right to publicity but different |
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Intrusion (Defined)
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Invasion of the P’s seclusion in a way highly offensive to an average person (e.g. electronic invasions or low tech, peering into someone’s window
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Intrusion (exam portion)
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P must be in a place where there is a reasonable expectation of privacy
Some examples 1. Clearly in your own home 2. Probably in your car with respect to certain things 3. Probably in a hotel room 4. You do not have one you’re using you cell phone in a public place 5. PA – personal injury claimants have a diminished expectation of privacy, hence, they can expect reasonable inquiry and investigation into their claim, including surveillance while in a public place There is no requirement that a P enter onto defendant’s property to have intrusion(e.g. you can take pics from afar) |
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False Light (defined)
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The widespread dissemination of a major falsehood about the P that would be highly offensive to an average person
Falsehood need not be defamatory (they overlap but it is broader than defamaition) There is no good faith defense – you speak at your own peril |
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Disclosure (defined)
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The widespread dissemination of confidential info on P which would be highly offensive to an average plaintiff
1. Involves TRUTHFUL info, but it’s intimate, sensitive. (would want it to be secret unless we made the decision to release it) 2. D who circulates medical records or financial data to someone without permission |
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Disclosure (exam points)
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Newsworthy exception (e.g. the medical records for a presidential candidate)
Facts in question must be truly private or intimate – watch out for the “dual spheres of life” – something might be private in one and public in the other – not protected |
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Affirmative Defenses (Privacy Torts)
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Consent: Defense to all four
Absolute and Qualified Privilege are defenses to false light and disclosure |
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Intentional Misrepresentation (fraud, deceit)
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Prima facie case
1. Misrepresentation of material fact (no duty to disclose unless rendered by someone with superior skill in the area) (In PA – adoption agency has to tell the truth when it volunteers info to prospective parents) 2. Scienter – i.e. when D made the statement she knew or believed it was false or there was no basis to the statement 3. Intent to induce P to act or refrain from acting in reliance upon misrepresentation 4. Causation (actual reliance) 5. Justifiable reliance (generally reliance is justifiable only to statement of fact, not opinion) and 6. Damages – P must suffer actual pecuniary loss 7. IN PA – breaches of contract are generally barred under gist of action doctrine |
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Negligent Misrepresentation
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1. Misrepresentation by D in a business or professional capacity (PA – adoption agencies again – must use reasonable care and make a good faith effort to make a comprehensive investigation)
2. Breach of duty toward particular P. 3. Causation 4. Justifiable Reliance 5, Damages Generally action is confined to misrepresentations made in a commercial setting and liability will attach only if reliance by the particular plaintiff could be contemplated |
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Inducement of a breach of contract
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Prima Facie Case
Existence of a valid contract relationship between P and third party or valid business expectancy of P D’s knowledge of the relationship or expectancy Intentional interference by D inducing a breach of termination of the relationship or expectancy and Damages |
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Inducement of Breach of Contract (Privilege)
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D’s conduct may be privileged where it is proper to attempt to obtain business for itself or protect its interests
Privilege is more likely to be found if D 1. Interfered with P’s prospective business rather than with existing contracts 2. Used commercially acceptable means of persuasion rather than illegal or threatening tactics 3. Is a competitor of P seeking prospective customers 4. Has a financial interest in or responsibility to the third party or is responding to 3P’s request for business advice PA – party will not be liable for tortious interference with contractual relations for giving truthful information to one another |
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Malicious Prosecution
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Institution of criminal proceedings against P (filing a complaint with the po for example
2. Termination in plaintiff’s favor 3. Absence of probable cause for prior proceedings (insufficient facts for a reasonable person to believe that P was guilty or D in fact did not actually believe P to be guilty) 4. Improper purpose (something other than bringing a weird person to justice) 5. Damages Prosecutors are immune |
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PA – Wrongful Civil Proceedings
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Dragonetti statute makes both P’s and their attorneys wrongful for this. Must show
1. Underlying proceedings were terminated in her favor 2. D initiated these proceedings without probable cause or acted in a grossly negligent matter 3. D filed the original action for improper purpose and 4. P’s sustained damages as a result Atty’s have probable cause to bring action when they reasonably believe in facts on which action relies and legal theory under which it is brought Laypersons have probable cause to bring an action when they reasonably believe the claim may be valid in reliance on advice of counsel, sought in good faith, and after full disclosure of all relevant facts within their knowledge |
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Abuse of Process
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Prima Facie case
1. Wrongful use of process for an ulterior purpose 2. Definite act or threat against P in order to accomplish an ulterior purpose |
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Negligence
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Duty (P must show that the D owned a duty of care and specify what that duty was
Breach – P fell short of that duty Causation – includes both factual and proximate cause elements Damages |
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Duty (in general)
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Every person in the world is obligated to take risk regarding precautions as they engage in various daily activities
1. We don’t have to be perfect – we don’t have to get the prob down to zero – but we need to take risk reducing precautions |
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Default Standard of Care
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Otherwise known as the plain vanilla standard of care. Think about
Who are foreseeable plaintiffs? How much care do I owe? |
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Who are foreseeable plaintiffs (the plain vanilla standard of care)
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Palsgraf – you don’t owe duties to unforeseeable victims outside the zone of danger (people far away are not forseeable)
If you are a rescuer – you are excused from the Palsgraf standard. “Danger invites rescue” when someone comes into the action to render aid or assistance, you should have seen that coming |
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How Much Care do you owe? (the plain vanilla standard of care)
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You owe the type of care given to a reasonably prudent person acting under similar circumstances
Reasonably prudent person 1. Has no physical attributes (he is not tall or short, not male or female, no age, no race) 2. He has a very specific set of behavioral characteristics (someone you’d never want to go out drinking with, always one step ahead, always carries preparedness items) 3. Most of us fall short of the reasonable person. 4. We make o allowances for the D’s shortcoming – he can be stupid, dull, below average, have a disease of the mind, or be a beginner engaged in the activity for the very first time |
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Two Departures from Duty
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If the D has superior skill or knowledge on matters relevant to the case
If relevant we will incorporate the physical attributes |
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If the D has superior skill or knowledge on matters relevant to the case
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The reasonably prudent person becomes a hypothetical person with that skill or knowledge
E.g. Professional nascar driver held to standard of profession nascar driver |
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Physical Attributes
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If relevant we’ll include them
1. Tall 2. Blind But only if it’s relevant – e.g. tall people can drive a car just as well as a short person |
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PA duty of Care
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PA recognizes several factors to weigh in determining whether a duty of care exists including
1. Relationship between parties 2. Social utility of actor’s conduct 3. Nature of the risk imposed on foreseeability of harm incurred 4. Consequences of imposing duty on the actor and 5. The overall public interest in the proposed solution |
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Six Duty Scenarios
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1. Duty owed by children
2. Negligence of a Professional 3. Premises Liability Litigation 4. Statutory Standards of Care 5. Duty to Act Affirmatively 6. NIED |
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Negligence of Children (Children Under 5)
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Children under 5 are incapable of negligence
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Negligence of Children (Children above 5)
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Owe the rest of the world a duty of care of a hypothetical child of similar age, experience, and intelligence acting under certain circumstances
1. The child standard of care is a subjective one – differs for every child in the world 2. Pretty flexible 3. Not impossible for P to win 4. EXCEPTION – adult activity – next card |
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Negligence of Children (Exception)
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If a child is engaged in an adult activity then we do not use the special standard of care. We go backwards and use the plain vanilla of care.
Adult activities include: cars, farm equipment, motorboat, jetski, snowmobile, anything with a motor basically, states split on whether hunting is an adult activity |
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PA – Negligence of Children (Minimum Age)
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1. Children under 7 are presumed to be incapable
2. Children aged seven to fourteen are rebuttably presumed to be incapable of negligence 3. Children over 14 are presumed capable of negligence |
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Cases alleging negligence of a professional
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Could be any professional – lawyer, engineer, healthcare providers – but we’re mostly talking about healthcare providers)
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Cases alleging negligence of a professional (standard)
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Must exercise the skill and knowledge normally possessed by members of that profession in good standing in similar communities
Custom sets the standard – we want our doctor’s to conform to it Plaintiff almost always needs an expert witness EXCEPTION: Similar Communities (next card) |
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Medical Malpractice (similar communities)
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The traditional American view was that the care in medicine might vary between big city places and small rural places
So if you’re a rural physician, you use a rural standard of care HOWEVER – specialists we use a modern standard of care and the modern trend is trending in favor of national standard of care for all |
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Premises Liability Litigation (Basics)
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Possessor
1. Often the owner but not always, because much real estate is rented 2. If the property is rented to the possessor is the tenant in possession? Entrant 1. P who has come into the house |
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Duties to Unknown Trespasser
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Comes on to the land without permission and possessor is unaware of his presence
This person always loses – zero liability Policy: an unknown trespasser is Mrs. Palsgraf – a perfect example of an unforeseeable victim |
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Known or Anticipated Trespasser (generally)
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Somebody comes on the land without permission but now the possessor is actually aware of the individual’s presence on the property
On the bar exam –possessors should know about trespassers when there has been trespassing in the past |
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Known or anticipated trespasser (duty of landowner)
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There is only a duty when the condition is artificial in nature (no duty to protect from natural conditions)
Conditions must be highly dangerous – could kill or main (no duty to protect from moderately dangerous conditions) Conditions must be concealed from the trespasser (no duty to protect these kid of entrants form open or obvious hazards on the land) D must know about the hazard in advance COMPRESSED RULE: Duty to protect from known, hidden, manmade death traps on the land |
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Licensee (defined)
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A person who enters land with permission but who does not confer economic benefit on the possessor
E.g. – guest, someone you invite over is the stereotypical one Could also be someone who came to your door to solicit (got their permission from “custom of the community” – you could put up a no soliciting sign though) |
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Duty to licensee
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Possessor must protect licensee only from conditions that meet a two-part test
1. Concealed form the license (hidden danger) 2. Condition must be known in advance by the possessor Compressed: Possessor must protect licensee for all known traps on the land |
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Invitee (Defined)
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Enters with permission and either confers economic benefit on possessor or property is open to general public.
Stereotypical invitee – customer of the business Also invitee if you go to things open to public like house of worship or pic someone up at the airport |
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Duty to Licensee
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Hazard must be concealed form the invitee
Hazard must be one that the possessor knew about in advance or could have discovered through reasonable inspection. Two points about the inspection: 1. Knew or should have known 2. One that could be done by a reasonably prudent person (not obsessively through detail – takes into account costs and benefits) COMPRESSED: Possessor owes an invitee a duty to protect from all knowable traps |
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Current Status of Landowner liability
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More than half the states have abolished this – just throw it out and use reasonably prudent person
NOT on the bar exam |
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Firefighters and Police Officers (Landowner Liability)
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Almost always licensees
Firefighters and police officers never recover negligence damages for injuries that are an inherent risk of their employment (firefighter that gets burned, even if landowner negligently set the fire |
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Child Trespassers (Landowner Liability)
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Owed a duty of reasonable prudence under all circumstances with regard to artificial conditions on the land
Two key things to analyze reasonable prudence 1. How foreseeable was it that children will trespass in the first place? 2. One thing that will make it foreseeable is if it’s something that LURES CHILDREN IN-the attractive nuisance doctrine |
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Landowner premises case – possessor can satisfy duty in two ways
1. |
Fix the hazard, correct the problem
2. Give a warning – warning also satisfies duty completely – warning satisifies duty just as fixing it would be (popular on MBE) |
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PA – Duty to Possessor of those off the Premises
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Subject to liability for harm caused on adjacent property by the condition of at tree if the exercise of reasonable care would have disclosed the condition and the risk involved and the condition could have been made reasonably safe
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PA – Duty Owed to a Trespasser
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PA follows the general rule
However, PA law also imposes a duty to refrain rom wanton (Conduct so reckless it makes the harm highly probable) and willful conduct (intentional act of unreasonable character and risk or so obvious that actor must be aware of it) |
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Statutory Standard of Care (defined)
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In many negligence cases the P will point to a criminal statute and ask the court to use the requirements of the statute as a specific standard of care for that case only
Called “negligence per se” or “breach per se” |
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Statutory Standard of Care (two part test)
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1. P has to show that he is in the class of persons that the statute seeks to protect
2. P has to show that the accident that actually occurs is in the class of risks that this statute is trying to protect (More often than not on the bar the P FAILS this test) |
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Statutory Standard of Care (Two Exceptions)
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If compliance (obedience to the statute) would be more dangerous than violation (swerving over double yellow line to avoid a kid – causes an accident)
2. Compliance was impossible under the circumstances (e.g. driver dies of a heart attack and runs a red light because of it) |
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Duty to Act Affirmative (generally)
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In general there is no duty to act affirmative. When you take something on you have to do it reasonably, but there is no general affirmative duty to act
You do not have a duty to rescue (exceptions – next card) |
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Exceptions – When there is a duty to rescue
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If there is a relationship between the person in peril and the defendant that will trigger a duty to rescue
1. Traditionally the courts looked for a formal relationship (employeer-employee |
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innkeeper-guest)
2. |
Modern trend is informal relationships (e.g. friend passes out at dinenr and you know CPR
If D put the plaintiff in peril (not excessive – don’t have to jump in burning building, just call the fire department) If you voluntarily opt to rescue and screw it up (EXCEPTION: next card) |
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Good Samaritan Statutes
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Insulates voluntary rescuer for negligent recscue to ncentivize them to rescue
PA protects various types of medical personnel who are volunteering without compensation– must be proof of gross negligence before P can recover In PA, normal people may intervene with defibrillators if there is good faith (reasonable believe that emergency requires immediate action), but trainers are preferred users of those devices |
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NIED (defined)
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D engages in negligent act but there is no physical harm to P, P will just be upset
D must first be negligent through some special duty of care |
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Three Different Scenarios
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1. Near Miss
2. Bystander Case 3. Relationship Case |
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NIED Near Miss
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P, although not physically injured by D’s negligence, was placed in zone of physical danger by D’s negligence (almost caused trauma)
Distress caused subsequent physical manifestations E.g. heart attack, miscarriage BUT modern trend seems to relax this requirement |
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NIED Bystander Case
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Negligent D causes a serious injury to or death of 3rd person
Death of 3P makes P sad Not really law – just a way to orient your thinking – instead of fright like near miss case think SADNESS Conditions for Recovery 1. P and X must be closely related 2. P must see injury to X as it happens – CONTEMPORANEOUS Witness on the scene Rules vary state to state – but they’ll test on core case |
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NIED Relationship Cases
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P and D are in business relationship and it is highly foreseeable that negligence by the D will distress P
E.g. Medical patient and medical laboratory mixing up test results Customer and funeral parlor – Grandma’s the wrong color |
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PA – Wrongful Birth and Wrongful Life Actions
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PA does not permit an action for damages based on claims that but for D’s negligent act or omission
1. The P would not have been conceived or would not have been born (“wrongful life”) 2. The P’s child, once conceived, would not have been born (wrongful birth) Statute does not apply to actions for negligent failure to properly perform a contraceptive procedure |
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PA – Duty to Disclose Risks of Treatment
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In PA – failure to disclose risks of surgical procedure cases create an action in battery – not negligence
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PA- Duty of Healthcare Institutions
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Action may arise against health care institution such as nursing home for policies, actions, or inaction of the institution itself
To establish negligence claim, P must show that institutional had actual or constructive knowledge of the procedures or omissions that caused the harm and that the negligence was a substantial factor in bringing about the harm |
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PA Increased Risk of harm – Medical Negligence
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When a physician’s negligence is a substantial factor in causing patient’s injury, the plaintiff does not have to prove to a certainty that proper care would have, as a medical fact, prevented the injury
If there was any substantial possibility of avoiding the injury and the doctor has destroyed that possibility, he is liable A causal connection between the injury suffered and physician’s failure to exercise reasonable care may be proved by evidence that the risk of incurring those injuries was increased by Dr.’s negligent conduct |
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PA Burden of Proof – Legal Negligence
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DOES NOT apply to legal malpractice, P must show that she would have wont he underlying action absent the atty’s alleged negligence
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PA Common Carriers and Innkeepers
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In PA common carriers and innkeepers owe a special duty to their patrons requiring exercise of the highest degree of care
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PA Automobile Driver to Guests
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PA follows the common law rule of ordinary care and has no guest statute
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Duty to Control Third Persons
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May be liable for negligently supervised employee. To impose liability, P must show that
1. Employer knew or in the exercise of reasonable care should have known the need to exercise control over the employee to see that he did not act in a manner dangerous to third persons 2. Employer failed to exercise such control 3. Employee acted in dangerous manner which emoployer had notice of and acquiesced 4. Third party injured as a result |
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Breach (defined)
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P must do two things
1. Identify specific behavior that was wrongful (can be affirmative error or can be omissions – “you looked away from the road to change the radio station” vs. “you failed to signal while making a right turn”) 2. Offer a theory as to why conduct fell below standard of care (custom and usage, or cost benefit analysis) |
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Res Ipsa Loquitor (defined)
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A doctrine used by a P who cannot identify a D’s wrongful conduct. Does not know what the D did wrong. Back door to a jury room
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Res Ipsa (P has to show)
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1. The accident is of a type normally associated with negligence
Could be a probability test or could be expert testimony 2. That an accident of this type is normally due to negligence of someone in D’s position. Show evidence that D had CONTROL over instrumentality |
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Res Ipsa (effect of a valid case)
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P withstands directed verdict
Substitutes for direct evidence of a breach Jury is not, however, obligated to decide in P’s favor. Can decide either way. |
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Two types of causation
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Factual Cause
Proxmiate Cause NOTE: talk about factual cause first |
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Factual Cause (generally)
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Part of the case where the P establishes a linkage or connection between the breach and the injury suffered
Two semantic points 1. A D is never a factual cause - A BREACH is a CAUSE 2. Don’t ever speak of “the” factual cause – speak of “a” factual cause – all events have an infinite number of prior causes – if you say “the cause” it sounds like you don’t understand the principal |
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Factual Cause (Defined)
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A breach is “a cause” if “but for” the breach, P would be healthy today
In other words – we’re imagining a factual universe where we imagine everything happened the same way except P emerges uninjured If P emerges uninjured – breach is a factual cause Provides a structure for an argument about causation but does not lead you to an inevitable conclusion |
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Big Scenarios where we use factual cause
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MULTIPLE D’s
Two Scenarios 1. Multiple D’s and Merged Causes 2. Multiple D’s and Unascertainable Causes |
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Multiple D’s an Merged Causes (fact causation)
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In a merged cause case – I’ve got two or more negligent causes. They are not acting together, they’re complete strangers. Their negligence releases some kind of destructive force in the world. Merged force hurts the P (e.g. two parties set fires that combine and combine fires burn down house)
Substantial Factor Test: must ask whether each breach could have caused the harm by itself, each breach is a substantial factor. Each D is liable, D’s together are jointly liable |
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Multiple D’s and Unascertainable Causes (Fact Causation)
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We don’t know who was responsible, we can just reduce is to probabilities
We handle this by shifting the burden of proof, D’s will exonerate themselves, and if they can’t, they are liable |
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Proximate Cause (basic premise)
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Every action changes the subsequent history of the world til the end of time
There has to be a point where liability is cut off – and proximate cause is the cutoff So we’re looking at situations where things are a little attenuated |
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Proximate Cause – P must convince us that what happened…
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Was a foreseeable consequence of the breach. When you committed the act, you should have seen what happened to me as a predictable and foreseeable consequence.
It is fair for D’s to prepare for foreseeable consequences of their action |
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Proximate Cause – two types
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1. Direct Cause
2. Indirect cause |
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Direct Cause Case (Proximate Cause)
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P commits the breach – P is injured fairly contemporaneously
1. Liability would not be called into question by delay of time (any attenuated quality would not be delay of time) 2. Rather would have to do with the surprising nature of what happened a. If outcome was far-fetched, freakish, bizarre or unforeseeable –liability is not fair |
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Indirect Cause (Proximate Cause)
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D commits breach, other stuff happens in the middle, other people get involved. Only after that does P suffer full extent of harm.
Liability likely to be attenuated because of the passage of time, not because of purely surprising outcome Cases involving Intervening Medical Negligence 1. Cases involving intervening medical negligence D runs red light – hits pedestrian, messes up pedestrian’s leg – injuries are foreseeable Dr. does remain liable for his error too 2. Intervening Reaction or Protection Forces D runs red light and enters intersection crowded with lots of pedestrians. They stampede to get away – one of the P’s steps on a dude’s face. Liable for leg and face Cases say D is liable for all of it. Peeps in the immediate vicinity are going to react 3. Subsequent disease or accident D runs the red light and breaks the leg – pedestrian trips on crutches – later |
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Alternative way of looking at Proximate Cause
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Look at breach and ask “What am I afraid of?”
Shift your gaze to the P – what happened to the P? If it’s a match – liability is appropriate. If not – comes out the other way |
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Eggshell Skull Principle
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Under this principle, once the D has committed the other elements of the claim – P is responsible for all, even if surprisingly great in scope.
Take the P as you find him. Not limited to negligence – take the P as you find him |
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Contributory Negligence
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Negligence on the part of the P that contributes to her injuries. Same standard of care as ordinary negligence.
Some things 1. Can be used as a D’s violation of statute unless statute was designed to protect P’s from incapacity and lack of judgment 2. Not a defense to contributory negligence 3. Completely bars a P’s right to collect |
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Last Clear Chance Doctrine
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Exception to Contrib.
Person with the last clear chance to avoid an accident is liable for negligence. Think about 1. Helpless Peril – In many states where P is in “helpless peril,” D will liable if he knew or should have known of a P’s predicament 2. Inattentive Peril – D must actually have known of P’s predicament 3. Prior Negligence Cases – D must have been able, but failed, to avoid harming P at time of accident. If D’s only negligence occurred earlier – doctrine will not apply |
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Imputed Contrib.
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As a general rule, the contrib of a third party will be imputed to a P only when the relationship between the third party and P is such that a court could find P vicariously liable for the 3P’s negligence.
Negligence is imputed in employer-employee, partner, and joint-venturer relationships. Negligence is not imputed between husband and wife, parent and child, automobile owner and driver |
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Implied Assumption of the Risk
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Knowledge may be implied where the risk is one that an average person would clearly know about.
P may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency. CAVEAT - Common carriers and public utilities may not limit their liability by disclaimer, and members of class protected by statute will not be deemed to have assumed any risk PA has mostly abolished assumption of risk for downhill skiing and riding off-road vechicles and banned negligent action between ski resort patrons |
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Express Assumption of Risk
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May be assumed by an express agreement
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Asusmption of the Risk v. Intentional Torts
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Not a defense to intentional torts but is a defense to willful and wanton misconduct
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Comparative Negligence (Defined)
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A D in a negligence case can negate his negligence by showing that P failed to show proper care for his own safety (P was not reasonably prudent to avoid hurting himself)
Sidenote: you must obey statutes designed to prevent you from harm |
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Comparative Negligence – What does the Jury do?
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Weighs the fault and gives everyone a percentage. No law on how that percentage allocation needs to be done – it’s the jury’s discretion. Once you find what P is liable for, P’s recovery is reduced by P’s percentage of fault
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Types of Comparative Negligence
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1. Pure Comparative Negligence
2. Modified or Partial |
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Pure Comparative Negligence
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Purely by the numbers – P always recovers something even if they bear the lion’s share of the fault
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Modified or Partial Comparative Negligence
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1. P’s fault under 50% reduces recovery
P’s fault over 50% is an absolute bar. P goes home empty handed |
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PA – What comparative negligence?
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Partial. Recovery is barred only when P’s negligence exceeds the combined negligence of all D’s. Also no comparative neg. for wanton and willful conduct
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Liability for Injuries Cause by Animals – Preliminary
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Distinguish between
1. Domestic Animals 2. Wild Animals |
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Liability for Injuries Cause by Animals – Domestic Animals
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Generally a DOG – you are not strictly liable for your dog in dog bite cases (domestic animals in general)
IMPORTANT EXCEPTION: You are strictly liable if you keep a domesticated animal and you have knowledge of its vicious or dangerous propensities. NOW we will make you strictly liable. (Usually means Dog has bitten someone in the past) – DOES NOT APPLY IN PA CAVEAT: There is no strict liability for dog bites (EVEN WITH KNOWLEDGE OF DANGEROUS PROPENSITY) if person is a trespasser |
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Liability for Injuries Cause by Animals – Wild Animals
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Strict Liability. Always liable. No free bites. No rule about advanced knowledge.
Typical exam trick is to load up a question about safety precautions – doesn’t matter Also – what is a wild animal will be fairly obvious |
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Abnormally Dangerous Activities
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Rylands rule
Person is strictly liable for a harm caused by abnormally dangerous activity 1. An activity is abnormally dangerous if it creates a foreseeable risk of serious harm even when reasonable care is exercised 2. Also not a common practice in community |
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Typical Abnormally Dangerous Activities
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Blasting
Use of highly dangerous toxic and easily dispersed chemical or biological matter Highly corrosive chemical in tanker truck Nuclear energy or radiation |
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Strict Liability (In general)
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If someone gets hurt by a dangerous product, likely to have a variety of theories. Could be negligence, fraud, warranty action
Can be consumer products but also covers industrial products, forklift truck, drill press, meat grinder, large industrial oven |
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Four elements of product liability
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D Must be a merchant
P must show that product was defective Product has not been altered since it left the defendant’s hands You were making a foreseeable use of the product at the time of the injury |
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Product Liability Elements (D was a Merchant)
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D has to be a merchant – one that ordinarily deals in goods in this type
Four different things to ask about merchants 1. Casual sellers are people like you or me selling stuff – not merchants, we can’t be strictly liable 2. Service Products – if you make services available as collateral part of delivering service, not considered merchant. E.g. surgeon who gives blood transfusions is not a blood merchant 3. Lessors – Lessors are considered merchants and can be strictly liable – does not require transfer of title to be a merchant (E.g. a rental company could be liable for defective brakes) 4. Every party in the distribution chain is considered a merchant, and thus every party is liable for the strict liability cliam – no privity requirement, you have a strict liability claim not just against those you dealt with directly but those up the chain |
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Product Liability Elements (Product was defective)
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Often stipulated on multistate
Three different forms 1. Manufacturing Defect 2. Design Defect 3. Information defect |
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Manufacturing Defect
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Product has a manufacturing defect if it differs from all the others that came off the assembly line in a way that makes it more dangerous than the P would normally expect
Sometimes called “consumer expectation test” Product is an anomaly – irrelguar – the one in a million test |
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Design Defect
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Hypothetical alternative design would have been safer
Three tests 1. Hypothetical design posited by the P must be safer than the version actually marketed 2. Must be economical – has to cost about the same as the version marketed 3. Practical – cannot undermine the feasibility of the product If P meets the test – version marketed is defective in design If there is a regulation to make things safer – failure to conform to that can prove a design defect If the entire product is bad – extent of liability is MASSIVE |
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Information defect
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If a product has residual risks that cannot be eliminated by a design change and are not obvious to the user, that product is defective if it does not contain adequate warning and instruction about those risks
Not all warnings are created equal – have to be adequate If the product can be physically made safer – WE DON’T WANT A WARNING – WE WANT IT TO BE SAFER |
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Malfunction Theory (PA)
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Used to infer existence of a defect when the allegedly defective product has been destroyed or is otherwise unavailable. P does not need to specify but must present evidence that the product malfunctioned with normal use in the absence of reasonable secondary causes. Jury can infer defect with other elements
Will not succeed when product was misused or there may be another cause of malfunction such as improper maintenance or wear and tear) |
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Product Liability Elements (Product has not been altered)
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Usually a non-issue because it is presumed satisfied if the product moved in ordinary channels of distribution
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Product Liability Elements (You were making foreseeable use of product at time of injury)
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Many misuses of products are foreseeable (e.g. chair as a step ladder)
But still, sometimes people use product in unforeseeable way |
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Strict Liability – Affirmative Defenses
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Comparative fault. Any fault by P will result in assignment of percentages and a reduction in P’s recovery
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”Unknowing Contributory Negligence” (PA)
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Failure to guard against the existence of the danger is no fedense while knowing contrib is a complete defense
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PA Damages for Strict Liability
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No recovery if strictly for economic loss – the fact that the measure of a P’s damage is in economic loss does not transform nature of injury to strict economic loss. P can recover for emotional distress on strict liability tort
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Nuiscance
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Type of harm, not really a type of claim.
The interference with P’s ability to enjoy real estate to an unreasonable degree – on bar exam it will be extreme You can deliberately interfere, negligently interfere, you might exercise all reasonable prudence, you might be doing otherwise legal activity |
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How to prove nuisance
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Courts Balance the interests
P has right to be free from miserable experience D’s right o use land as he wishes |
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Coming to the Nuisance
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Not a defense if P came to the nuisance (got there first)
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Vicarious Liability (generally)
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Vicarious liability arises when the active tortfeasor wants to hold someone else liable. Based on relationships. Four Types
1. Employer/Employee 2. Hiring Party/Independent Contractor 3. Automobile Owner/Automobile Driver 4. Parents/Children |
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Vicarious Liability (Employer/Employee)
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Employer is vicariously liabe for torts committed by an employee that are committed within the scope of employment
Intentional Torts – generally outside the scope of employment Exception 1. Job involves use of physical force (nightclub bouncer) 2. Job is one that generates friction or anger or animosity (debt collector) 3. Any tort, directional or not, that serves bosses interest (clerk slaps you over expired coupons – misguided but he’s trying to serve you) |
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Vicarious Liability (Hiring Party/Independent Contractor)
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No vicarious liability
Bar Exam Exception: A property possessor is vicariously liable if independent contract injures an invitee PA is different – retain control over the crew and responsible for acts and omissions of Independent Contractor and employees 1. Shown by contractual provisions giving property owner control over the manner, method, and operative details of the work or 2. By showing the property owner exerted actual control over the work |
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Vicarious Liability (Automobile Owner/Automobile Driver)
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Car owner not vicariously liable for those who borrow the car
BUT if you authorize someone to use your car – you are vicariously liable In the real world doesn’t matter – insurance policy covers all drivers anyway PA has no family car or permissive use doctrine – retained general rule that car owner not vicariously liable for driver’s torts |
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Vicarious Liability (Parents/Children)
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Parents are not vicariously liable for the torts of their kids
The only reason you’d sue a kid is because they’re covered by parents insurance PA – parents may be liable for up to 2500 in damages for tortious acts of minor children |
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Tavernkeepers (PA)
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PA Dramshop Act – unlawful for any liquor license to sell, furnish or give any alcoholic beverages to visibly intoxicated persons
1. Not unlawful to supply alcohol to insane people or habitual drunkards” unless they are minors or visibly intoxicated 2. Adult social hosts liable only for knowingly serving alcohol to minor who subsequently injures himself or third party – no social host liable for serving alcohol to intoxicated adult 3. Not enough that social host should have known of alcohol being served to minor – must be actual knowledge |
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Joint Tortfeasor Issues
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You will often be told to assume that P has sued multiple D’s and wont he case. ON bar exam, D’s are jointly liable
Jury assigns percentages and will be asked to assign D a number indicating degree of fault |
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Indemnification
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Vicariously liable party can be indemnified by active tortfeasor
Non-manufacturer in strict products case can get indemnity from the manufacturer |
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PA Majority view (Joint Tortfeasors)
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Release of one tortfeasor does not discharge other tortfeasors unless provided in release agreement
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PA Contribution
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PA Adopted Uniform Contribution Among Tortfeasors Act for Cases Involving Joint tortfeasors – establishing apportionment of contribution among joint tortfeasors based on comparative fault of each tortfeasor
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PA Settlement
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Joint tortfeasor entering into settlement with P is permitted to seek contribution rom other tortfeasors whose liability has been extinguished by the settlement
Yet – settling tortfeasor can’t recover contribution from tortfeasor whose liability is not extinguished by settlement, even if amount of settlement turns out to be more than TF’s pro rata share of judgment |
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Loss of Consortium Claim
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If the victim of any tort is married, the uninjured spouse gets a separate cause of action in his or her own name
Only two things to know 1. Derivative – any defense that could be asserted against injured spouse will be available against the consortium P as well 2. You get three things Loss of services – solely to help out around the house Loss of society – companionship Loss of sex |
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Survival and Wrongful Death – PA
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PA has both of these torts, though separate and distinct they must be combined in one suit to avoid duplicate recovery
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Intra-Family Tort Immunities - PA
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PA has abolished both husband and wife immunity and parent child immunity
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State Governments and Municipalities
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PA retains them except for actions falling within these categories
1. Vehicle Liability 2. Care, custody, control of personal property 3. Real property 4. Trees, traffic controls, street lighting 5. Utility Service Facilities 6. Streets 7. Sidewalks 8. Care, custody, control of animals Applies to “injury to person or property” based on tort law – does not extent to contract action where focus is on the protection bargained-for expectations |
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Government Officials
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Any public official acting pursuant to court directive immune from tort action for false arrest
However, victim may still have claim for violation of federal constitutional rights |
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Charitable Immunity
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Abolished in PA
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