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310 Cards in this Set

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To est prima facie case of intentional tort, P must prove
1. act by D
2. intent
3. causation
ACT (for purpose of intentional tort) is
VOLUNTARY (Vol) movement by D
Define intent
May be either (1) specific (DESIRE that certain consequences result from action OR (2) general (KNOWLEDGE that those results are substantially certain to occur as a result of actions.)
Transferred intent doctrine
Legal principle that intent can be transferred from one victim or tort to another
To what torts can transferred intent be used?
FI, Trespass to land, Battery, Assault, Trespass to chattel. Does NOT usually apply when other tort ends up causing IIED.
Causation element for intentional tort means
result must have been legally produced as a result of D's act or something set in motion by D. Causation is satisfied if it was a SUBSTANTIAL FACTOR.
Issue: Can children or mentally incompetents be liable for intentional torts?
Yes. Incapacity no defense.
List intentional torts to person
Battery, Assault, FI, IIED
Elements of battery
1. harmful or offensive contact
2. to P's person
3. intent
4. causation
How to determine if contact harmful or offensive
judged by a reasonable person standard
P's person includes
things immediately attached to P--cane, purse, etc.
Are proof of damages required for prima facie case of battery?
No P can recover nominal damages even if actual damages are not proved. P may recover punitive damages for malicious conduct.
Assault--elements
1. Act by D creating a reasonable apprehension in P
2. of immediate harmful or offensive contact to P's person
3. intent
4. causation
Distinguish reasonable apprehension from fear or intimidation as element in assault
Apprehension of imminent contact does not necessarily mean P feels afraid or intimidated (e.g. a weakling can cause apprehension & thus assault a bully)
Can apparent ability to carry out a battery be enough for reasonable apprehension.
Yes
Can words alone constitute an assault?
Rarely. More often words can transform an ambiguous act into an assault or prevent it from being one.
Assault: Are damages required?
No. P can recover nominal damages even if actual damages not proved. Malicious conduct may permit recovery of punitive damages.
Distinguish tortious & criminal assault
Criminal--2 types: i. Attempted battery: may be committed even though victim unaware II. Intent to frighten type: must be actual intention to cause apprehension.
Tortious--D acts w/ the intention of placing P in apprehension of imminent harmful or offensive contact + P actually placed in such apprehension.
Elements of FI
1. Act or omission by D that confines or restrains P
2. To a bounded area
3. Intent and
4. Causation
FI: what is a bounded area?
1. freedom of movement must be limited in all directions.
2. no reasonable means of escape known to P
Sufficient methods of confinements or restraint for FI
1. physical barriers
2. physical force
3. threats of force
4. failure to release
5. invalid use of legal authority
FI: Insufficient methods of confinement or restraint include
1. moral pressure
2. future threats
Elements of false arrest constituting FI
1. D asserted legal authority to detain P
2. P believed D had the authority
3. P submitted against P's will
4. D in fact lack legal authority
To avoid liability for FI, police must show arrest was
lawfully made w/ probable cause (reasonable reliance on report that crime has been or about to be committed)
FI: are damages required?
No P can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if D acted maliciously.
IIED: Elements
1. act by D amounting to extreme & outrageous conduct
2. intent or recklessness
3. causation and
4. damages--severe emotional distress
IIED: can mere words suffice?
Yes (unlike assault where mere words will rarely suffice) but mere insults are generally not actionable. Words have to be truly outrageous & go beyond bounds of decency.
IIED--Conduct that is not normally outrageous can become so if
1. continuous in nature
2. directed toward a certain type of (like child, pregnant women)
3. committed by certain Ds (i.e innkeepers or common carriers may be liable for mere gross insults)
3rd person can recover for IIED under what 2 situations?
1. D knows 3rd person present + is close family of victim (MAJ) 2. D knows 3rd person present + victim's emotional distress is so bad it causes 3rd person bodily harm.
IIED: Are damages required?
Yes. Actual damages (severe emotional distress) not nominal damages are required. Proof of physical injury is not required. The more outrageous the conduct, the less proof of damages is required.
List intentional torts to prop
trespass to land
trespass to chattels
conversion
Elements of trespass to land
1. Physical invasion of P's real prop
2. Intent
3. Causation
Issue: Intent element for trepass to land
D need only intend to enter onto that particular piece of land (D does not need to know land belonged to another). MISTAKE IS NOT A DEFENSE.
Does trespass to land require proof of damages?
No P can recover for damages (like digging a hole, building a fire, etc) but even if no actual harm, nominal damages
Trespass to chattel
1. Act by D that interferes w/ P's right of possession in a chattel
2. intent
3. causation and
4. damages
Trespass to chattel: 2 types of interference
intermeddling or a dispossession
Trespass to chattel: are damages required?
Yes, not necessarily to the chattel but at least a possessory right
Conversion
1. Act by D that interferes w/ P's right of possession
2. so serious that it warrants requiring D to pay full value of chattel
3. intent and
4. causation and
5. damages
Diff b/n trespass to chattel + conversion; factors?
Seriousness. Factors include extent of D's dominion or control, duration of loss, ? D had bad faith, degree of harm to chattel, degree of inconvenience + expense to P
Acts of conversion include
theft, wrongful transfer, wrongful detention, substantially changing or severely damaging a chattel.
If prop of another is gained initially through consent, can a conversion occur?
Yes, severe misuse, destruction, exceeding authorization, substantial change in prop can result in a conversion even if D initially had permission to use.
Subj matter of conversion
tangible personal prop & intangibles that have been reduced to physical form
Potential P in conversion
anyone w/ possession or the immediate right to possession of the chattel.
Conversion: remedies
P may recover damages (FMV at time of conversion) or possession (replevin)
Defenses to intentional torts
Consent
Self Def
Def of others
Def of prop
Priv of arrest
Necessity
Discipline
Consent as an affirmative def to intentional tort means
permission, approval, agreement.
Can one consent to a crim act?
MAJ: no. MIN hold consent effective but all make consent invalid if P is a member of a "protected class."
For any consent fact pattern, what 2 ?s should be raised?
1. Was consent valid?
2. Did D stay w/in boundaries of the consent?
3 types of consent
express, implied in fact, implied in law
Implied in fact consent is
apparent consent; that wh a reasonable person would infer from custom & usage or P's conduct to be objective manifestation of agreement.
Implied in law consent
arises in emergency sit's when action is necessary to save person's life or other person or prop interest &
1. P unable to consent
2. reasonable person in P's position would consent &
3. no evid that P would not consent.
Issue: P consents but does not have capacity (child, insane)
Consent not effective--P's family has to consent for P. NOTE: everyone has capacity to commit a tort, but not everyone has capacity to consent.
Effect of conduct which exceeds consent
negates the consent. (e.g. cont contact after game ends, Dr. operating on wrong body part)
Consent obtained through mistake
will undo consent if D knew & took advantage of the mistake
Consent obtained through duress
invalidates consent--(must involve an immediate + serious threat of harm to P or P's family)
Consent obtained through fraud
invalidates consent if it relates to an essential, not collateral matter
For problems involving self def, def of others & def of prop, ask what 3 questions?
1. Is the privilege available? Tort must now be or about to be committed.
2. Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc) is actually being committed?
3. Was the proper force used?
Self def
Use of force to protect oneself from a real or threatened attack. Generally, a person is justified in using a reasonable amount of force in self defense if he or she believes that the danger of bodily harm is imminent & that force is necessary to avoid this danger.
When is self def available? i.e. is there a duty to retreat? is self defense available to an initial aggressor? Can an actor be liable for intentional acts which injure 3rd persons while trying to protect self?
1. One need not attempt to escape, but the mod trend imposes a duty to retreat before using deadly force if this can be done safely, unless the actor is in her own home.
2. Self def is gen not available to initial aggressor.
3. While using self def, an actor might be liable for intentional acts which injure 3rd persons while trying to protect himself. (i.e. using person as a shield).
Self def: is mistake allowed?
Yes a reasonable mistake as to the extent of danger is allowed.
How much force may be used in self defense?
that which reasonably appears necessary to prevent the harm.
Self defense + deadly force
Person can use deadly force only if he reasonably believe the other person is about to kill or seriously injure him.
Def of others
One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself.
Def of others: is mistake allowed?*
A reasonable mistake as to whether the other person is being attacted or has a right to defend himself is permitted.
Def of other: effect of mistake--MAJ & MIN
MAJ "step into the victim's shoes"--if not entitled to employ self def you can't use force on victim's behalf. MIN: you are entitled to reasonable mistake
Judge Wilde--re: def of others--
1st card is what my Conviser says. 2nd is what my other sources indicate.
And MBE ?s will get into some of these fine line distinctions.
Def of others: how much force may be used?
as much force as the person being defended could have used in self def.
Force can be used in def of prop when (4)
1. intrusion not privileged
2. actor has reasonable belief force is necessary to prevent or terminate the intrusion
3. force is preceded by demand to desist (unless dangerous or futile)
4. no greater force than that which appears to be reasonably necessary to protect prop can be used.
In def of prop, when is a mistake allowed and not allowed?
a reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. Mistake is NOT allowed as to whether entrant has a privilege (e.g. necessity) that supersedes the def of prop right unless entrant lead D to reasonably believe it is not privileged (such as refusing to say what the necessity is)
Def of prop--how much force may be used.
Reasonable. One may NOT use deadly force unless the invasion also entails a serious threat of bodily harm.
Can one use force to reentry land? CL & Mod
CL: yes if other came into possession tortiously.
Modern: there are summary procedure for recovering real prop. Self help no longer allowed. must use judicial system.
When can force be used to recapture chattel?
only when in hot pursuit of one who has obtained possession wrongfully--e.g. theft.
W/o the hot pursuit factor, chattels wrongfully taken may be recovered through peaceful means from wrongdoer if:
1. the right to immediate repossession of prop
2. timely demand
3. can only be recovered from wrongdoer (not innocent party)
May a dispossessed owner go onto land of other to reclaim chattel?
Yes but only at a reasonable time & in peaceful manner when the landowner has given notice of the presence of chattel & refuses to return it. However, the chattel owner will be liable for any actual damage caused by the entry.
If chattels are on the land of another through the owner's own fault, is there a privilege to enter onto the land?
No, they must be recovered through the legal process.
When acting to recapture chattel, what if D is mistaken about the 3rd person being in wrongful possession of it?
D takes the risk of mistake--even a reasonable one--& no mistake regarding D's right to recapture the chattel or enter the land is allowed.
(except shopkeeper's priv)
Shopkeeper's priv (5 elements)
1. reasonable grounds to suspect person being detailed stole sometg
2. detention must be in store or in immediate vicinity
3. only reasonable, nondeadly force may be used
4. investigation must be conducted in a reasonable manner
5. for a reasonable period of time.
How much force may be used in recapture of chattels/
reasonable force, never deadly force
Priv of felony arrests w/o a warrant and degree of force permitted--POLICE
reasonable belief that a felony has been committed & the person being arrested did it. Only the degree of force reasonably necessary to make the arrest allowed. Deadly force only when the suspect posses a threat of serious harm.
Priv of felony arrest w/o a warrant--PRIVATE CIT
As a gen. rule private cit (like police) may arrest w/o a warrant to prevent a felony or breach of the peace that is being committed or reasonably appears to be committed in his presence. Once crime committed private person may still arrest but authority depends on the person actually doing the crime & citizen takes full responsibility for a mistaken arrest. Deadly force allowed only when the suspect poses threat of serious harm.
Priv of misdemeanor arrest w/o a warrant--police or private cit--& degree of force allowed
misdemeanor must be a breach of the peace
committed in the arresting party's presence.
Some states allow police to arrest for misdemeanor other than breach of peace which is committed in their presence. Degree of force allowed is that which is reasonably necessary to make the arrest but never deadly force.
Doctrine of private necessity
1. Def to prop torts in wh
2. D privileged to invade prop rights of another
3. if emergency wh threatens life or prop
4. & requires immediate ac/n
5. so long as D does so reasonably
6. & must pay for resulting damage
(Courts usually compare the importance of what D was trying to protect w/ the importance of the right that the D invaded to protect it.)
Doctrine of public necessity
1. D is privileged to invade the prop rights of another
2. in emergency wh threatens the public good, a large number of people or properties
3. requires immediate ac/n
4. so long as D does so reasonably.
5. complete def. D does not have to pay for damage.
(Courts usually compare the importance of what D was trying to protect w/ the importance of the right D invaded to protect it.)
Does a reasonable mistake negate defense of private necessity?
No but lasts only as long as the danger & must pay for resulting damage.
Disciple as a def to intentional tort?
Parent, teacher, military commander, other can use REASONABLE force to preserve order. EXCESSIVE FORCE will negate.
Torts which harm economic, dignitary & reputation interests
1. defamation
2. invasion of right to privacy
3. misrepresentation
4. interference w/ bus relations
5. wrongful institution al legal processes
General damages in defamation & invasion of right to privacy cases
Damages which the law presumes flow from the tort--humiliation, mental anguish, harm to reputation w/ no$ repercussions.
Special damages in defamation & invasion of right to privacy cases
Damages P alleges. In defamation cases, P must prove special damages for them to be awarded. E.g. pecuniary losses caused by harm to P's reputation for defamation. P does NOT need to plead & prove special damages for invasion of right to privacy, Law considers emotional distress & mental anguish sufficient.
Elements of CL defamation
1. Defamatory language
2. of or concerning P
3. by D
4. publication
5. damage to P's rep
Issue: defamation & stmts of opinion
No liability for defamation unless stmt false. Stmts wh are expressions of writer's feelings re subj matters are stmts of opinion, and opinions are neither true nor false. Stmts of opinion can only be actionable if the reasonable person would interpret stmt as true or false.
If defamation involves a matter of public concern, the Con requires P to prove
In addition to defamatory language, of or concerning P, publication and damages to P's reputation (CL elements) must also prove
1. falsity of language
2. fault on the part of D--level depends on status of P: If public figure: malice; private: neg
(In a CL case, P does not have to prove falsity as part of the prima facie case. Rather, D can offer truth of stmt as a defense.)
CL V Con law & falsity in defamation cases
CL: P does not have to prove falsity in prima facie case. Rather D could offer truth as a defense.
Defamatory language is
that which tends to damage one's reputation.
When is stmt of opinion defamatory?
1. reasonable person would interpret stmt as factual &
2. it can be proven false.
Inducement & innuendo in defamation case.
Inducement-extrinsic facts wh show defamatory nature of stmt not defamatory on its face.
Innuendo--P's explanation of a why stmt which does not initially appear so was defamatory.(e.g. innuendo of stmt "David burned down his house" can be shown by pleading that the stmt was understood to mean that David was defrauding his ins co. The fact that he had insured his house is pleaded and proved by inducement.)
Is defamation of dead person actionable?
No
Colloquium in defamation case
Extrinsic evid offered to prove defamatory stmt refers to P if it does not do so on its face.
Issues around group defamation
1. If stmt refers to all members of a small group, ea member may establish it is "of or concerning" him.
2. If stmt refers to a large group, no member can prove stmt is "of & concerning" him
3. If stmt only refers to some members of a small group, P can recover if a reasonable person would view the stmt as referring to P.
Publication in defamation means
communication to someone other than P. Can be intentional or neg. Ea repetition is a sep publication, but most states have "single publication" rule for mags & newspapers.
Libel & proof of damages?
written defamatory language. P does not have to prove special damages, general damages are presumed.
Libel per se & libel per quod
MIN distinction which recognizes libel per se as actionable in itself requiring no proof of special damages and libel per quad (libel not evident on its face) as actionable only w/ proof of special damages.
Slander
spoken defamation. (defamatory lang, of or concerning P, publication, damage to P's rep) P must prove special damages unless slander per se.
Slander per se categories
1. stmt which adversely reflect one's conduct in a bus or profession
2. stmt that P has a loathsome disease
3. stmt that P is guilty of a crime involving moral turpitude or
4. state woman P is unchaste
Do most courts treat radio & TV broadcasts as libel or slander?
libel
If defamation is a matter of public concern P also must prove (+ CL elements) _________ & __________?
falsity of stmt
fault on part of D
In defamation, level of fault P must prove depends on
P's status--public figure or private person
For public figure, P in defamation suit must prove
malice under the New York Times V. Sullivan rule
Malice w/ regard to mental state for defamation is
1. Knowledge that the stmt was false or
2. reckless disregard as to whether it was false.
For private person, P in defamation suit must prove
negligence as to stmt's truth or falsity under Gertz v. Welch if stmt is a matter of public concern. If not a matter of public concern, Constitutional restrictions do not apply
Damages recoverable for public figure in defamation actions
presumed damages under CL rules & punitive damages where appropriate.
Damages recoverable for private P in defamatory action when stmt matter of public concern
Damages only for proved "actual injury". If P proves malice, presumed & punitive damages may be available.
Damages recoverable for private P in defamatory action when stmt matter of private concern
presumed damages under CL rules & punitive when appropriate
Defenses to defamation
Consent
Truth
Absolute priv
Qualified priv
Ways qualified priv may be lost
1. stmt not w/in scope of priv
2. speaker acted w/ malice
Are mitigating factors defenses to liability in defamation?
No, but jury can consideration mitigating factors--such as retraction, anger of speaker in reaction to P, etc.
4 torts under invasion of right to privacy
1. appropriation of P's name or likeness
2. D's intrusion into P's affairs or seclusion
3. Publication of facts placing P in false light
4, Public disclosure of private facts about P
To prove appropriation of P's picture or name, P must show
1. unauthorized use
2. for D's commercial advantage
Mere ec benefit to D (not in connection w/ promoting a product or service) by itself is not sufficient.
To prove intrusion on P's affairs or seclusion, P must show
1. Act of prying or intruding
2. Highly offensive to a reasonable person
3. Thing intraded must be PRIVATE. (Photos taken in public places are not actionable.)
To prove false light, P must show
1. D attributed to P views he does not hold or actions he did not take
2. Highly offensive to a reasonable person
3. Must be publicity.
4. If public concern, MALICE on part of D must be proved.
To prove public disclosure of private facts, P must show
1. Public disclosure of PRIVATE INFO about P
2. HIGHLY OFFENSIVE TO A REASONABLE PERSON
3. 1stA limitations probably apply if matter of legitimate public concern.
Causation element in invasion of right to privacy (under all 4)
Invasion of P's interest must have been proximately caused by D's conduct.
Defs to invasion of right of privacy torts
Consent & defamation privilege defenses. Truth generally NOT good def nor is inadvertence, good faith or lack of malice.
Right of privacy as a personal right means......Does it extend to family or corps? Survive death?
the right of a person & the person's prop to be free from unwarranted public scrutiny or exposure. It does not extent to family members nor corps. It does not survive death nor is it capable of being assigned.
Elements of intentional misrepresentation (Fraud, Deceit)
1. misrepresentation of a material fact
2. scienter--D knew or believed it was false or that there was no basis
3. intent to induce P to act in reliance
4. causation (actual reliance)
5. justifiable reliance (gen. reliance is justifiable only as to a stmt of fact, not opionion)
6. damages (actual pecuniary loss)
Defenses to intentional misrepresentation
There are no defenses to intentional misrepresentation.
Prima facie case for Neg Misrepresentation
1. Misrepresentation by D in a bus or professional capacity
2. breach of duty owed to P
3. causation
4. justifiable reliance
5. damages
Prima facie case of Interference w/ Bus Re/ns
1. existence of a valid Kual re/ship b/n P & 3rd party or valid bus expectancy of P
2. D's knowledge of the re/ship or expectancy
3. intentional interference by D inducing a breach or termination of the re/ship or expectancy
4. damages
Defense of priv to interference w/ bus re/ns.
Proper competitive behavior in commercial setting
Wrongful institution of legal proceedings includes what 3 torts
malicious prosecution
wrongful civil proceedings
abuse of process
Prima facie case for malicious prosecution
1. institution of crim proceedings against P
2. termination in P's favor
3. absence of probable cause
4. improper purpose
5. damages
Can prosecutors incur liability for malicious prosecution?
No, prosecutors are immune
Prima facie case for wrongful civil proceedings (most juris/ns)
1. institution of civil case against P
2. termination in favor of P
3. absence of basis for suit
4. improper purpose
Prima facie case for abuse of process
1. wrongful use of process for an ulterior purpose
2. definite act or threat against P to accomplish an ulterior purpose
Prima facie case of neg
Neg is failure to ack reasonably in the face of foreseeable risk. Prima facie case of neg
1. duty
2. breach
3. actual & prox cause
4. damage
Duty of care is owed to
all foreseeable Ps
Extent of duty is determined by
the applicable standard of care.
Generally, the extent of duty owed is by the
applicable standard of care.
2 possible outcomes when D breaches duty to P1 & also causes injury to another (possibly unforeseeable) P2
Cardoza (MAJ) Foreseeable zone of danger
Andrew (MIN) Everyone is foreseeable
Andrews/Cardoza views & mod courts
use combo--i.e. require prox cause (Andrews) but use Cardoza's reasoning to conclude prox cause does not exist if P was outside the scope of foreseeable danger.
Basic standard of care
Reasonable person standard which is OBJECTIVE & measured against what the average person would do.
In neg actions, how are D's mental deficiencies taken into account?
They are not--still measured against what the average reasonable person would do.
In neg actions, how are D's physical deficiencies taken into account?
The "reasonable person" is considered to have the same physical disabilities as D but D is expected to know his handicaps & exercise the care of a person w/ such knowledge.
Standard of care of professionals
required to possess the knowledge & skill of a member of the profession in good standing in similar communities. Med professionals are held to national standard.
Standard of care & children
Children held to the standard of a child of like age, ed, intelligence & exp. Subj test. Children doing adult activities required to conform to "adult" standard of care.
Standard of care of innkeepers & common carriers
very high degree of care--liable for slight neg.
Standard of care of adult driver to guest
ordinary care. A few states have guest stats in which driver liable to nonpaying passengers only for reckless tortuous conduct.
Standard of care in bailment situations
depends on who benefits from bailment. In situations of mutual benefits, (bailment for hire) ordinary standard, If sole benefit of bailee, low standard. If sole benefit of bailor (person who brings prop) higher.
Standard of care in emergency sits
D must act as a reasonable person would under the same emergency conditions--but emergency is not considered if D created the emergency.
Duty of possessor of land to those off the premises
1. No duty for natural conditions on land.
2. Duty to protect from unreasonably dangerous artificial conditions.
3. Duty to conduct activities on prop so as to avoid unreasonable risk of harm to those outside prop..
Duty of land occupier/possessor to those coming onto prop depends on
P's status as a trespasser, licensee or invitee
Duty of land occupier/possessor to undiscovered trespassers
No duty owed
Duty of land occupier/possessor to discovered or anticipated trespassers
1. warn or make safe concealed, unsafe, artificial dangerous cond/ns known to the landowner causing risk of serious injury
2. no duty for natural or less dangerous cond/ns
3. duty of reasonable care in "active operations" on land.
To est attractive nuisance doctrine, P must show
1. dangerous artificial cond/n on land that owner is or should be aware of
2. owner knows or should know children frequent vicinity
3. cond/n is likely to harm child b/e of chld's inability appreciate danger.
4. expense of remedy is slight compared w/ magnitude of the risk.
Licensee is
one who enters onto land w/ possessor's permission for her own purpose or business. Social guest are licensees.
Land possessor's duty to licensee's
1. warn of dangerous cond/ns (natural or artificial) known to owner that create an unreasonable risk of harm to the licensee & licensee is unlikely to discover
2. exercise reasonable care in conduct of "active operations" on prop.
Invitees are
those who enter onto the land for purpose of landowner in connection w/ the bus of the landowner--or enter for a purpose for which the land is held open to the public.
Duty owed by land possessor to invitees
Same as for licensees + duty to make reasonable inspections to discover nonobvious dangerous conditions & thereafter make safe.
Duty owed by landowners of recreational land
Landowners who permits public to use his land for free for recreational purposes is not liable for injuries unless the landowner willfully & maliciously failed to guard against or warn of a dangerous condition or activity.
Mod trend rejects distinction b/n invitees & licensees (& a few trespassers) & applies
a reasonable person stand to dangerous cond/ns on the land
Gen duty of lessor of land
not liable to lessee or others on land for harm caused by dangerous artificial cond/ns on the land.
Exceptions to gen rule that lessors not liable (4)
1. sit where lessor Ks to repair or makes neg repairs
2. undisclosed dangerous conditions known to lessor
3. land leased for purposes involving admission of gen public
4. parts of land retained in the lessor's control which lessee is entitled to use (i.e. common areas).
Duty of vendor of realty to vendees
must disclose concealed, unreasonably dangerous cond/ns which vendor knows or has reason to know exist & which vendee unlikely to discover w/ reasonable inspection.
Stat may replace CL duty of due care if
1. Stat provides for a crim penalty.
2. Stat clearly defines standard of conduct.
3. P is w/in protected class
4. Stat was designed to prevent the type of harm suffered by P
Violation of stat may be excused when
1. compliance would cause more danger than violation
2. beyond D's control
Effect of violation of or compliance with stat & negligence
MAJ: unexcused violation of stat is NEG PER SE wh establishes duty & breach of duty. But compliance will not necessarily est due care.
2 requirements P must satisfy to prevail in NIED
1. P must be w/in zone of danger
2, P must suffer physical symtoms from the distress
Zone of danger in NIED
1. P located in dangerous area created by D's neg
2. P frightened by the risk of harm
NIED: Special requirements for bystander not in zone of danger seeing injury to another
1. P & victim injured by D are closely re/d
2. P was present at the scene of the injury +
3. P personally observed or perceived the event.
NIED: Special re/ship b/n P & D
D may be directly liable for NIED when D has a duty to P based on a special re/ship (i.e. physcian who misdiagnoses terminal illness.)
NIED: other sits w/o proving zone of danger or physical symptoms
erroneous report of relative's death
mishandling of a relative's corpse
Exceptions to gen rule that one does not have a legal duty to act
1. assumption of duty by acting
2. peril caused by D's conduct
3, special re/ship b/n parties
4. duty to control 3rd persons
Breach of duty
When D's conduct falls short of the level reqired by applicable stand of care owed to P, D has breached D's duty.
Theories used to prove breach of duty in neg ac/n
1. custom or usage
2. violation of stat--neg per se
3. res ipsa loquitur
Doctrine of res ipsa loquitur requires P to show:
1. accident causing the injury is a type that would not normally occur unless someone was neg. &
2. neg is attributed to D
3. D had exclusive control of instrumentality causing injury
4. P must also est freedom from fault
Effect of res ipsa loquitur
P has made a prima facie case + no directed verdict may be given to D
Causation in neg ac/n
Once P proves D's neg conduct, P must show that neg conduct was cause of his injury--both ACTUAL & PROX. cause
Tests for actual cause
1. "but for" test
2. joint causes--substantial factor test--both parties caused harm.
3. alternative causes approach
How is alternative causes approach applied?
When there are 2 neg acts-- only one of which causes injury, but it is not know which one. The burden of proof shifts to Ds & ea must show that his neg is not the actual cause.
Prox Cause
Legal cause which deals w/ liability or nonliabiity for unforeseeable or unusual consequences of one's acts. Doc of prox cause concerns limitation of liability.
General rule of causation for neg
FORESEEABILITY TEST: D is liable for all harmful results that are w/in the increased risk caused by D's acts.
Liability in direct cause cases
D liable for all foreseeable harmful results of his neg. D is not liable for unforeseeable harmful results which are not w/in risk of D's neg.
What happens in indirect cause cases?
An act of God or 3rd person comes into motion after D's neg act & combines w/ it to cause P's injury.
Dep interv/g cause or force
cause of an accident or injury that occurs b/n D's neg & injury, but does not change D's liability, b/e it is almost always foreseeable.
Common examples of dep interv/g force (6)
1. subsequent med. malpractive
2. neg of rescuers
3. efforts to protect person or prop
4. subsequent diseases caused by a weakened cond/n
5. injuries caused by another reacting to D's actions
6. subsequent accident substantially caused by original injury
Indep interv/g cause or force
force which operates on a cond/n produced by a cause which came before it but in no way resulted from the cause; forces that are not natural responses to sit created by D's neg.
When foreseeable results caused by unforeseeable interv/g force, D is usually
liable, b/e neg increased risk of a foreseeable harmful result though that result is ultimately produced by an unforeseeable interventing force. Does not apply when the unforeseeable interv/g force was a crime or intentional tort of 3rd per.
When unforeseeable results caused by foreseeable interv/g force, D is usually
not liable. Rare care when a totally unforeseeable result was caused by a foreseeable interv/g force, most courts hold D not liable.
When unforeseeable results caused by unforeseeable interv/g force, D
not liable., b/c interv/g forces that produce unforeseeable results (not w/in risk D created) are generally considered unforeseeable & superseding.
Superseding forces
break the causal connect/n b/n D's initial neg act & P's ultimate injury, thus relieving D of liability.
When unforeseeable extent or severity of harm occur, D is
liable. re: eggshell skull P rule
Damages as element of neg
essential element, will not be presumed, & nominal damages not available.
Types of recoverable damages
1. personal injury
2. prop damage
3. punitive damages
Personal injury damages include
economic & noneconomic. P suffering physical injury may also recover damages from resulting emotional distress.
Measure of prop damage
reasonable cost of repair or FMV
Punitive damages if
D's conduct is "wanton & willful."
Nonrecoverable damages include
attorney fees
interest from the date of damage in personal injury suit
Duty to mitigate (avoidable consequences doctrine)
P's responsibility to make injury or damage less severe or intense. Damages could be reduced if P failed to mitigate.
Collateral source rule
Damages are not reduced just b/e P recevied benefits from other sources (e.g. ins)
Defs to Neg
1. Contributory neg
2. Assumption of risk
3. Comparative neg
Contributory neg is
neg on the part of P that contributes to her own injuries. Standard of care for contributory neg is the same as for ordinary neg.
Effect of contributory neg
completely barred P's right to recovery at CL. Almost all jurisd/ns now favor a comparative neg system.
Last clear chance rule
Exception to contributory neg. ; permits P to recover despite her contributory neg.; person w/ last clear chance to avoid an accident who fails to do so is liable for neg. Last clear chance doc applies to small # of cases which still use cont neg. LAST WRONG DOER IS VIEWED AS THE WORST WRONGDOER or at the least the decisive one so should pay
3 applications of last clear chance
1. If D knew or should have known P was in "helpless peril" D will be liable
2. INATTENTIVE PERIL: If D understood that P could have extricated herself from the harm but D also knew P was unaware of this, D will be liable.
3. For last clear change to apply, D must have been able but failed to avoid harming P at time of accident.
Imputed contributory neg
neg of a 3rd party imputed to P(and bar P's claim) only when re/ship b/n 3rd party & P is such that a court could find P vicariously liable for the 3rd party's neg. (e.g. employee-employer)
For assumption of the risk defense, D must show P
1. knew the risk and
2, vol proceeded inthe face of the risk
Assumption of risk may be implied where
the risk is one that an average person would clearly appreciate. Does not apply where there is no available alternative (like fraud or an emergency)
Assumption of the risk is not a def to
intentional torts (but is a def to wanton & willful misconduct)
In comparative neg. states,
P's own neg is not a complete bar to recovery. Rather it proportionately reduces the damages recoverable from D.
Partial comparative neg
bars P's recovery if his neg was more serious than D's neg (or in some states) as serious
Pure comparative neg
allows recovery no matter how great P's neg.
Strict liability--elements of a prima facie case
1. nature of D's activity imposes an absolute duty to make safe
2. dangerous aspect of the activity was the actual & prox cause of P's injury (remember strict liability will NOT be imposed if unexpected type of harm not re/d to dangerous activity) and
3. P suffered damage to person or prop.
3 areas where strict liability imposed
1. wild animals
2. abnormally dangerous activities
3. strict products liability
Does owner have strict liability for trespassing animials?
Yes, strict liability for reasonably foreseeable damage done by trespass of owner's animals.
Will strict liability be imposed for personal injuries caused by wild animals?
Yes, owner is strictly liable to licensees & invitees for injuries caused by wild animlas as long as P did nothing to bring about the injury
Will strict liability apply to injuries caused by domestic animals?
No, owner NOT strictly liable UNLESS he has knowledge of animal's dangerous propensities & not common to species
Will strict liability be imposed for injuries caused by Owner's animals to trespassers?
No, strict liability will generally not be imposed in favor of trepassers in absence of owner's neg. A landowner may be liable on intentional tort grounds for injuries inflicted by vicious watchdogs.
2 requirements courts used to find activity abnormally dangerous
1. activity must create a foreseeable risk of serious harm even when reasonable care is exercised
2. the activity is not a matter of common usage in the community.
Scope of duty owed for abnormally dangerous activities
absolute duty to make safe the normally dangerous characteristic of the animal or activity. Owed to all foreseeable Ps.
Defenses to strict liability for an abnormally dangerous activity
1. contributory neg--no def if P did not realize danger
2. assumption of the risk--good de.
3. contributory neg--most states DO apply their comp neg rules to strict liablity cases.
Products liability refers to
supplier of a defective product to someone injured by the product.
5 theories of products liability P may use
1. intent
2. neg
3. stict products liability
4. implied warranties of merchantability & fitness for a particular purpose
5. representation theories (warranty & misrepresentation)
To find liability under any product's liability theory P must show
1. defect
2. defect existed at time product left D's control
Types of defects
1. manufacturing
2. design
3. inadequate warnings
Proving a manufacturing defect
D will be liable if P can show the product failed to perform as safely as an ordinary consumer would expect (D must anticipate misuse). Test applies to defective food products.
Proving a design defect
P usu. must show D could have made product safer, w/o serious impact on $ & utility
Re: govt safety standards & product defects
A product's noncomplicance establishes defect, while complaince is evid but NOT conclusive the product is not defective.
Product liability based on intention tort theory
D will be liable to anyone injured by an unsafe product if D intended the consequences or knew they were substantially certain to occur.
Product liability based on neg
P must show duty, breach, actual & prox cause & damages. (Re: Damages: Where D's neg causes only mental disturbances w/o accompanying physical illness or physical consequences in absence of other tort liability the vast Maj of courts still hold there can be no recovery. e.g. mouse in bottle of milk which just causes mental distress)
Duty of care in products liability case based on neg is owed to
any foreseeable P
Who can sue in products
liability ac/n based on neg?
users, consumers, bystanders.
Who can be liable in products liability ac/ns based on neg?
manufacturers, wholesalers, retailers
Breach of duty in products liability ac/n based on neg is shown by
1. neg conduct of D leading to
2. supplying a defective product,
3. P can invoke res ipsa loquitur.
4. difficult to hold retailers & wholesalers neg b/e they can usu. satisfy duty w/ inspection
Prima facie case of strict products liability in tort
1. strict duty owed by a commercial supplier of a product
2. production or sale of a defective product
3. actual & prox cause
4. damages
Who can sue in strict products
liability ac/n ?
users, consumers, bystanders.
Must be no sig alteration of the product.
If product is used in a service, does strict liability apply?
NO
Who can be held liable in strict products liability?
Any commercial supplier. Not casual sellers.
For strict products liability, the product's defect must make the product
dangerous beyond the expectation of the ordinary consumer.
Causation prong of strict liability means
P must show the defect existed when product left D's control. P may be able to rely on a inference that this type of product failure ordinarily would occur only as a result of product defect. Proximate cause is the same as for neg.
Nature of damages recoverable in strict products liability
physical injury or prop damage--Recovery will be denied if sole claim is for ec loss.
When is contributory neg not a defense in strict products liability?
1. P failed to discover defect or guard against its existence
2. P's misuse was reasonably foreseeable.
Discuss assumption of the risk as a def to strict products liability in tort
Yes assumption of risk can be def. (e.g. traditionally, if person knew his brakes were defective yet chose to drive anyway person would be barred from holding manufacturer liable. Now implied assumption of the risk is handled as part of comparative fault. So if P voluntarily chose to encounter a known danger, not necessarily a total bar to liability but a reason why some blame will be assigned to the P when court decides each party's share of comparative fault.)
Is comparative neg a def to strict products liability in tort?
Most comparative neg states will apply their rules
Are disclaimers effective in neg or strict liability cases if personal injury or prop damage occur?
No they are irrelevant.
Which 2 types of warranties can serve as the basis for a suit by a buyer against a seller?
Implied warranty of merchantability
implied warranty of fitness for a particular purpose
Implied warranty of merchantability
refers to whether the goods are of average acceptable quality & are generally fit for the ordinary purpose for which the goods are used
Implied warranty of fitness for a particular prupose
arises when the seller knows or has reason to know the particular purpose for which the goods are requried & the buyer is relying on the seller's skill & judgment in selecting the goods.
Who can sue under a product breach of warranty theory?
Most courts no longer require verticle privity & adopt a narrow version of the horizontal privity requirement--which means buyer, family, household & guests--also extends to baliments & leases.
What constitutes breach in product warranty suit?
product failing to live up to either of 2 warranty standards. Proof of fault on part of D not necessary.
Causation in product breach of warranty suit
actual & prox cause as in ordinary neg
Damages available in breach of warranty product liability suit
Personal injury & prop damages AND PURELY EC loss are recoverable
Defenses available to D in product liability suit under breach of warranty theory
1. Assumption of the risk (using a product while knowing of breach of warranty)
2. Contributory neg to same extent as in strict products liability cases.
3. UCC--failure to give notice of breach
Effect of disclaimers in products liability cases under breach of warranty theory
generally rejected in personal injury cases but upheld for ec loss.
2 types of representation suits when product does not live up to some affirmation by seller
1. express warranty
2. misrepresentation of fact
Express warranty
Any affirmation of fact or promise concerning goods that becomes part of bargain
Who can sue under an express warranty theory?
Any consumer, user or bystander including bailments & leases. Buyer must have relied on the warranty as part of the basis of the bargain.
Breach of express warranty means
product did not leve up to its warranty. Fault need not be shown.
Causation, damages & defenses
are the same as implied warranties. (Defenses: Assumption of the risk (using a product while knowing of breach of warranty), Contributory neg to same extent as in strict products liability cases, UCC--failure to give notice of breach)
Disclaimer of express warranties
will only be effective in unlikely event it is consistent w/ the warranty.
Seller liable for misrepresentation concerning a product when
1. Stmt was of a material fact concerning quality or uses of goods
2. Seller intended to induce reliance by buyer in trans/n.
3. actual justifiable reliance (which shows actual causation)
4. proximate cause
5. Damages--physical injury or prop damages must be shown--recovery will be denied if the sole claim is for ec loss.
Nuisance
not a separate tort but rather a type of harm--invasion of either private or public prop rights by tortious conduct which falls into categories of intentional, neg or strict liability.
Private nuisance is
substantial, unreasonable interference w/ another private ind's use or enjoyment of prop that he possesses or to which he has a right of immediate possession.
Substantial interference (nuisance) is
offensive, inconvenient, annoying to average person in the community. Not substantial if it is result of P's hypersensitivity or specialized use of his own prop.
Unreasonable interference (nuisance) is
based on intent or neg, the severity fo the inflicted injury must outweigh the utility of D's conduct.
Public nuisance is
an act that unreasonably interferes w/ the health, safety or prop rights of the community. Private party can recover for pub nuisance only if the private party suffered unique damage not suffered by the pub at large.
Remedies for nuisance include
1. damages
2. injuntive relief
3. abatement by self help
Abatement by self help available in private nuisance
after notice to D & his refusal to act; only necessary force may be used.
Abatement by self help in public nuisance
can only be carried out by a public authority or a private party who has suffered some unique damage can seek injunction or abatement.
Defense for nuisance include (4)
1. Legislative authority (i.e zoning) persuasive but not absolute
2. conduct of others (all of the factories are polluting)
3. Contributory neg--no defense unless P's case rests on a neg theory
4. coming to the nuisance is generally not a bar unless P "came to nuisance" for sole purpose of bringing the law suit.
Vicarious liability
Liability that one party bears for the actionable conduct of another b/e of the re/ship b/n them.
Doctrine of respondeat superior
A master/employer will be vacariously liable for tortious acts committed by her servant/employee if the conduct is w/in the scope of employment.
Frolic
minor deviation of employee from his employer's bus for his own purposes--considered still w/in scope of employment
Detour
an employee's major deveiation in time or geographic from his employer's bus for his own purposes--considered outside of the scope of employement.
Respondeat superior & intentional torts
Not w/in scope of employment except when
1. force is authorized in the employment (bouncer)
2. friction is generate by the employment (bill collector)
3. employee is furthering bus of the employer
General rule re ind Kor sits & vicarious liability
A principal will not be held vicariously liable for tortious acts of ind Kor
Exceptions to gen rule that principal will not be help liable for torts of ind Kor
1. inherently dangerous activities
2. nondelegable duties--work performed in a public area necessarily involves an "inherent danger"
Employer/principal may be held liable for own neg
if neg in selecting or supervising employees or ind Kors.
Vicarious liability of partners & joint venturers
each vicariously liable for torts of other members committed in scope & course of the affairs of the partnership or joint venture.
Vicariously liability of auto owner for driver
Gen rule, auto owner not vicariously liable for the tortious conduct of another person driving his car.
Family car doctrine
Many states--owners is liable for tortious conduct of immediate family or household members who are driving w/ the owner's express or implied permission.
Permissive use re: auto
# of states have imposed liablity on the owner for damage caused by anyone driving his auto w/ consent
Neg entrustment re:auto
owner may be liable for own neg in entrusting car to a driver.
Bailor for bailee--vicariously liability?
Gen rule, bailor not vicariously liable for the tortious conduct of bailee. Bailor may be liable for her own neg in entrusting the bailed object.
Parent for child--vicarious liability?
1. CL: no but
2. Most states, yes up to a certain $ amt (e.g. $10,000)
3. Yes, if child acting as agent for parent.
4. Parent liable for own neg--e.g. allowing child to do someth dangerous
Tavern keepers--vicarious liability?
1. CL--no
2. Mod Dramshop Act.
3. Liable for own neg--e.g. foreseeable risk of serving a minor or obviously intoxicated person
Joint & several liability
liability that may be apportioned either among 2 or more parties or to only one or a few select members. Ea party is individually responsible for the entire obligation, but a paying party may have a right of contribution & indemnity from the nonpaying parties.
Statutory limitations on joint & several liability
Many states have abolished joint liability & made liability proportional when
1. D judged to be less at fault than P or
2. for all Ds re: nonec damages
In joint & several liability, satisfaction is
recovery of full payment. Only one is allowed, but until satisfaction, P can still go after all Ds.
Release (CL & MAJ)
CL: release of one joint tortfeasor was a release of all. MAJ; relase of one does not d/c other tortfeasores
Contribution & joint & several liability
apportions responsibility & allows a D who pays more than his share of damages to have a claim against other Ds for excesss
Are contributions applicable to intentional torts?
No
Methods of apportioning contribution in joint & several liability
1. MAJ comparative (relative fault)
2. MIN equal shares
Indemnity
Shifts the entire loss between or among tortfeasors through the right of a party who is secondarily liable to recover from the primarily liable party reimbursement of $ paid to a 3rd party for injuries resulting from breach of duty.
Situations in wh Indeminity is available (4)
1. by K
2. in vacarious liability sits
3. under strict products liability
4. in some juris/ns where there has been an identifiable diff in % of fault
Survival of tort actions
allow one's cause of ac/n to survive the death of one or more of the parties. Apply to personal injury & prop torts.
What torts cannot survive P's death?
defamation, invasion of right of privacy, malicious prosecution
Wrongful death acts
grant recovery for pecuniary injury resulting to spouse & next of kin. Decedent's creditors have no claim against the amt.
Tortious interferences w/ family re/ships include
1. Husband/wife ac/n for neg or intentional tort causing interference w/ consortium, etc.
2. Parent-child
3. Derivative so any defense that would prevent recovery by injured family member would also prevent recovery for interference w/ the fam re/ship
Tort immunities--3 types
1. Intra family
2. Govt
3. charitable
Traditional view of intra family tort immunity
one member of a family could not sue another in tort
Husband wife immunity
Immunity of one spouse from a tort ac/n by the other for personal injury. Abolished in most states.
Parental immunity
Principle that a child is prohibited from suing a parent for damges caused by neg. MAJ retain this immunity but it is not applied to intentional tort cases or auto accident cases covered by insurance.
Govt tort immunity
in varying degrees has been eliminated. Where it survives, it attaches to GOVERNMENTAL not proprietary func/ns.
Under Fed Tort Claims Act, US has
waived immunity for tortious acts which are "ministerial" (as opposed to "discretionary")
Exceptions to Fed Tort Claims Act where immunity will still attach include ("discretionary" acts )
US has waived immunity for assault, bat, fi, false arrest, malicious prosecution, abuse of process, libel & slander, misrepresentation & deceit & interference w/ K rights..
State & local government immunity
Most states & 1/2 municipalities have substantially waived their immunity to the same extent as the fed. gov. Courts limit sovereign immunity to govt functions and do not grant it for proprietary functions.
Immunity of public officails
granted for discretionary acts done w/o malice or improper purpose. Liability still attaches for ministerial acts.
Charitable immunity
Immunity of a charitable orgaization from tort liability--has been eliminated or restricted in most states
Firefighter's rule or professional rescuer's rule
Provides that a professional rescuer generally cannot hold someone liable for neg that creates a need for the rescuer's services. Only apples to risks inherent in the professional rescuer's services
Policy rationale for this rule
1. we pay taxes to cover
2. worker's will be entitled to workers' comp for on the job injuries
3. we do not want people to fear liability to discourage people from calling for help when they need it.
Tort liability when two or more people act "in concert"?
Whenever 2 or more persons commit tortious acts in concern, each become subj to liability for the acts of the others, as well as for his own acts.