Torts

Front 1

Elements of Intentional Torts

Back 1

voluntary act, intent (desire or substantial certainty that such a result will occur), causation, harm, and no privilege or defense

Front 2

Voluntary

Back 2

D not liable for tort for acts that are not voluntary

Acts are not voluntary if they are a product of pure reflex or if D is unconscious when act is performed

Front 3

Incompetency and intent; transferred intent

Back 3

mental incompetency or being a minor does NOT preclude a finding that he possessed intent to commit an intentional tort, but it may affect whether such intent actually existed

Transferred intent: if D acts with necessary intent to inflict certain intentional torts, but for some reason causes injury to a different victim than intended, D's intent is transferred to actual victim ***applies ONLY to assault, battery, false imprisonment, and trespass to land or chattels***

Front 4

Causation and intentional torts

Back 4

For intentional torts, D's act or a force set in motion by that act must cause the plaintiff's injury

Front 5

Battery

Back 5

intentional act that causes a harmful or offensive contact with P or with something closely connected thereto

D must either: desire to cause an immediate harmful or offensive contact OR know such contact is substantially certain to occur

harmful/offensive conduct: satisfied is contact would inflict pain or impairment of any body function, or if a reasonable person would regard it as offensive

**unlike assault, P does NOT need to be aware of the contact**

Front 6

List of intentional torts

Back 6

battery, assault, false imprisonment, intentional infliction of emotional distress, trespass to land, trespass to chattels, conversion

Front 7

assault

Back 7

intentional act that causes P to experience a reasonable apprehension of an immediate harmful or offensive contact

D MUST act with desire to cause immediate harmful or offensive contact or the immediate apprehension of such a contact, or know that this result is substantially certain to occur

liability for assault will NOT be found unless a reasonable person in the same position as P would have experienced the same apprehension

BUT if P's apprehension was reasonable, the fact that D lacked actual ability to cause harmful/offensive contact does NOT defeat liability

Offensive/harmful: satisfied if contact threatened would inflict pain or impairment of any body function or if a reasonable person would regard it as offensive

**P needs to be aware of the almost-contact**

Front 8

False Imprisonment

Back 8

Intentional act that causes P to be confined or restrained to a bounded area against P's will, and P knows of the confinement OR is injured thereby

D has requisite intent for false imprisonment IF he: desires to confine P to bounded area OR knows that such confinement is virtually certain to occur

P may be confined by use of physical barriers (locked in), by failing to release P where D has legal duty to do so, or by invalid assertion of legal authority

**NO duration requirement -- very brief still counts, although damages will be low**

P is under NO duty to resist if D uses credible threat of physical force

P is not confined if there is a reasonable means of escape of which he is actually aware

Front 9

Intentional Infliction of Emotional Distress

Back 9

intentional or reckless act amounting to extreme and outrageous conduct that causes P severe mental distress

D must have intent to cause severe mental distress OR be reckless in creating risk of emotional distress

Reckless = D acts in deliberate disregard of high probability that emotional distress will follow

Extreme/outrageous conduct: satisfied if D's conduct is beyond the bounds of decency - conduct that civilized society will not tolerate

Offensive/insulting language? generally not enough unless you are a common carrier or innkeeper, or P has a known sensitivity (pregnant women, elderly, children) - although, trend toward permitting recovery for offensive insults made by someone in position of authority

Severe distress: more than the level of mental distress a reasonable person could be expected to endure

3rd party IIED - if D intentionally or recklessly causes severe emotional distress to an immediate family member of P, where P is present at the time AND D is aware of P's presence OR if D causes intentionally or recklessly causes severe emotional distress to ANY other person regardless of relationship who is present at the time, IF such distress results in bodily harm to P (not to 3rd party who was targeted by D)

Front 10

Trespass to Land

Back 10

intentional act that causes physical invasion of P's land

**mistake is not a defense** D just needs to intentionally enter land - even if he thinks it's his!

**P MUST be in actual possession OR have a right to immediate possession of the land! This means lessees or adverse possessors can bring a trespass action but owners not in possession can't!**

Physical invasion - satisfied if D enters or causes 3rd person or object to enter onto P's land OR enters lawfully but then remains when under legal duty to leave OR fails to remove object from P's land when under legal duty

ALSO consider strict liability or nuisance

P's land: includes above AND beneath the surface

injury: nominal damages if P causes no injury - acts willfully or maliciously? punitive damages too!

Front 11

Ejectment

Back 11

action at law to recover possession of real property

Elements required: proof of legal title, proof of P's right to possession, and wrongful possession by D

P entitled to recovery of property and mesne damages, which compensate for loss of use of land - measure against rental value of property OR benefit gained by wrongful possessor, whichever is greater

At common law, if D mistakenly trespasses and improves the land, P can recover the property without compensating D

Front 12

Trespass to Chattels

Back 12

intentional act by D that interferes with P's chattel, causing harm (ACTUAL damages!!)

Intent: satisfied when D intentionally performs physical act that interferes with P's chattel - Mistake is NOT a defense

Chattel: tangible personal property or intangible property that has physical representation (like a promissory note)

Interference with P's chattel is actionable IF it constitutes:

Dispossession: direct interference with P's possession, such as where D temporarily takes P's chattel or wrongfully refuses to return it

OR Intermeddling: interference with chattel that does not directly affect P's possession (like kicking P's dog!)

**P MUST have been in actual possession or have had the right to immediately possess the chattel!**

Actual damages: can include value of loss of sue (rental value) of chattel during dispossession or cost to remedy an intermeddling

Front 13

Conversion

Back 13

D intentionally exercises dominion or control over a chattel that causes destruction of or a serious and substantial interference with P's chattel

Mistake is NOT a defense

More serious than trespass to chattels - the longer the period of interference and greater the use of chattel by D, more likely it will be conversion rather than trespass to chattels

D liable for full value of chattel at time of conversion

P usually can choose damages (full market value at time of conversion plus consequential losses) or replevin with damages for wrongful detention

D offering to return chattel does NOT alleviate conversion, and P doesn't have to accept - might mitigate for a D who innocently converted

Front 14

Acts more likely to be conversion than trespass to chattels

Back 14

Wrongful acquisition (theft, embezzlement, and receiving stolen property)

Wrongful transfer (selling, misdelivering, or pledging)

Wrongful detention (withholding from owner)

Loss, destruction, or sever damage

material alteration

significant misuse

Front 15

Factors deciding between conversion and trespass to chattels

Back 15

extent and duration of D's exercise of dominion/control

D's intent to assert a right inconsistent with the other's right of control

D's good faith

Extent and duration of resulting interference with P's right of control

harm done to chattel

inconvenience and expense caused to P

Front 16

Replevin

Back 16

action at law for recovery of specific chattels (tangible personal property) that have been wrongfully taken or detained

possessory action that permits P to recover immediate possession of property (at the beginning of action) - must post bond at beginning in case they find for D - D can too if he wants to keep chattel until action has concluded

damages suffered from deprivation may ALSO be recovered (market value of chattel at the time of deprivation minus market value at time action is commenced OR value of lost use)

P gets present value of chattel if he wins and chattel is not returned

Replevin is NOT available to recover real property or intangible personal property

Front 17

Replevin and the UCC

Back 17

UCC says buyer has right of replevin for goods identified in the contract IF

after reasonable effort he is unable to effect cover for such goods

circumstances reasonably indicate that such effort will be unavailing

OR if goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered

if bought for personal, family, or household purposes, buyer's right of replevin vests upon acquisition of special property interest, even if seller had not then repudiated or failed to deliver

Front 18

Defenses to intentional torts (list)

Back 18

POPCANS

privilege, defense of others, defense of property, consent authority, necessity, self-defense

Front 19

Privilege

Back 19

under certain circumstances, D may not be liable for conduct that would ordinarily subject him to liability

Privilege may exist where: person affected by D's conduct consents; some important personal or public itnerest will be proptected by D's ordinarily prohibited conduct, and this interest justifies the harm caused or threatened by D's conduct; D must act freely in order to perform an essential function

D has burden of proving existence of privilege and that privilege was exercised reasonably under the circumstances

Front 20

Consent

Back 20

Even though a D has otherwise committed an intentional tort, he is NOT liable if P consented to the act which constituted the tort!

In order to invoke this, consent must be effective, and D must not exceed scope of the consent

P can manifest consent expressly, by implication, or as a matter of law:

Express: exists where P affirmatively communicates permission for D to act

Implied: circumstances under which a reasonable person would interpret P's conduct as evidencing permission to act

Matter of Law: P is unable to consent AND emergency action is necessary to prevent his death of serious injury, a reasonable person would be expected to consent under the circumstances, AND no reason exists to believe P would not consent

Front 21

Defenses to Consent

Back 21

Consent is not effective if there is:

Mistake: consent is product of mistake of fact or law as to nature or consequences of D's act AND D is aware of the mistake

Fraud: consent is induced by D's intentional deceit as to the essential nature or consequence of his act. If fraud relates to a collateral matter, consent may still be effective, but fraud itself may be independently tortious as to P

Duress: consent is induce by threat of imminent harm to P, or by false assertion of lawful authority over P (or one of these things for member of P's immediate family)

Incapacity: as a matter of law, young children and people with mental disease, defect, or are intoxicated are incapable of consenting to tortious conduct! Without particular knowledge, D may interpret P's actions as manifesting consent

Violation of Criminal Statute: most jxs treat consent as ineffective where D's tortious conduct also constitutes a crime (minority says consent to a criminal act gets you off the hook for civil liability - unless you're a member of a class of persons protected by the violated criminal statute)

Front 22

Self-defense

Back 22

Using reasonable force to prevent P from engaging in an imminent and unprivileged attack

even if there was actually no harm threatened, D can successfully assert self-defense IF a reasonable person in the same circumstance would have believed he was under attack AND he subjectively believed he was under attack

D has no duty to retreat when acting in self-defense

ALSO: when a D otherwise properly acts in self-defense, he is NOT liable for intentional tort if he inadvertently inflicts injuries on innocent third parties (may be liable for negligence if it was unreasonable)

Front 23

Ohio Self-Defense

Back 23

D not at fault in creating violent situation; bona fide belief that D was in imminent danger of death of great bodily harm; and force is the only means of escape; and that they did not violate any duty to retreat

Front 24

Defense of Others

Back 24

D entitled to defend 3rd party to same extent that third party would be lawfully entitled to defend himself

Front 25

Defense of Others Ohio

Back 25

FILL

Front 26

Defense of Property

Back 26

D must first demand that P desist conduct that threatens injury to his property before he can use force in defense, UNLESS it would be futile or dangerous to demand

amount of force used must be no greater than necessary to prevent threatened harm - and it's NEVER permissible to use deadly force

This includes reasonable force to recover personal property of which he has been tortiously dispossessed by P (or against third party who knows)

BUT D may NOT use force to recover property as to which P came into possession under a claim of right

Mistake that you were tortiously dispossessed is NOT a defense

D can enter onto P's land to recover property if it is otherwise proper for him to use reasonable force - but must be at a reasonable time and in a reasonable manner - but D will be liable for actual damages he causes

Front 27

Recovery of Wrongfully Dispossessed Land

Back 27

Kind of defense of property

Majority says: D may never use force to recover land of which he has been wrongfully dispossessed

Front 28

Necessity

Back 28

D is permitted to injury P's PROPERTY if this is reasonably necessary to avoid a substantially greater harm to public, to himself, or his property

Reasonable person in same circumstance would believe it necessary to injure P's property - objective standard

Private interests? only okay when threatened harm is substantially greater than harm that will result - Public interests? only if threatened harm is SEVERE

Usually, D will still be liable for any actual damage to P's property if acting for private interests - if public interests, NO liability

Front 29

Authority - Arrest

Back 29

Where D is a police officer acting pursuant to a duly issued warrant, valid on its face, he is not liable in tort for arrest (reasonable mistake as to person okay)

Where police or private citizen acts to prevent felony being committed or about to be in his presence, NOT liable for intentional tort based on arrest (reasonable mistake okay)

Private citizen makes felony arrest but makes mistake about whether felony was committed? NO defense - mistake about identity? Reasonable okay

Authority okay for breach of peace (misdemeanor involving violence) - reasonable mistake okay

Warrantless arrests for misdemeanors that are not violent? No authority

If D entitled to make arrest, D may enter on P's land to do it

Front 30

Authority - shopkeeper's privilege

Back 30

Shopkeeper not liable for false imprisonment or related tort if he has reasonable suspicion that P has stolen goods, uses reasonable force to detain person, and detains them for a reasonable period and in a reasonable manner

Front 31

Authority - Discipline

Back 31

If D is charged with maintaining discipline (parent or teacher), he may use reasonable force to perform his duty

Factors: age, sex, psychical condition of disciplined P, motivation under which D acted

Front 32

Negligence elements

Back 32

Duty, Breach, Causation, Damages

Front 33

Duty: Foreseeable Ps

Back 33

You owe duty to foreseeable plaintiffs, including rescuers!

Front 34

Duty: Generally no affirmative duty to aid or protect... EXCEPT

Back 34

No affirmative duty to take action to aid or protect a P who is at risk of injury unless such action is taken... EXCEPT

when D's conduct is responsible for placing P in position where he requires aid (negligent omission - when D fails to do something that a reasonable person would have done - if this is you and your negligence puts P in danger, you have a duty). Modern approach gives you a duty even if you weren't negligent

ALSO - once you take an action to aid P, you have a duty to exercise due care as to your subsequent conduct (however, Good Samaritan statutes limit liability for rescuers and emergency aid)

Nonfeasance - if D gratuitously promises to take action to aid P, D has no duty to actually take this action EVEN IF P relied on this promise to his detriment (but not if you promise and then try to make good on the promise - then you're on the hook)

Front 35

Special Relationship

Back 35

D has a duty to take affirmative action in aid of P where a special relationship exists between them (usually when D has power over P)

Ex: employer-employee during scope of employment, common carrier/innkeeper carrier, school-pupil, parent-child, business-patron, and jailer-prisoner

Front 36

Duty to Control Third Parties

Back 36

No duty to control conduct of third person as to prevent him from causing physical harm to another, UNLESS: special relationship (parent under duty to exercise reasonable care to control minor child so as to prevent child from intentionally harming or creating unreasonable risk of bodily harm IF parent: knows or should know he can control the child AND knows or should know of necessity and opportunity for exercising control

Front 37

3rd parties - master/servant

Back 37

Master has duty to exercise reasonbal ecare to control servant while acting OUTSIDE schope of employment in order to preven servant from intentionally harming others or creating unreasoanble risk of bodily harm to them IF:

Servant is on master's premises/premises he is privileged to enter only as servant OR using master's chattel AND master knows/should know he has ability to control and of the necessity and opportunity for exercising control

Front 38

Employer's Hiring Duty

Back 38

duty to P to exercise reasonable care in hiring employees - liable for own negligence in hring, not vicariously liable for wrongful conduct of employee

Front 39

3rd person using your personal property

Back 39

D has a duty to control such use and to exercise due care in permitting third person to use property - auto owner!

Front 40

Special Relationship with 3rd person

Back 40

In some jxs, if D has special relationship and becomes aware that 3rd person intends to do specific harm to an identified P = duty to warn P of harm!

Psychotherapist-patient, custodian-prisoner

Also, you usually have no duty to protect 3rd party from criminal conduct UNLESS special relationship - foreseeability differs by jx

Front 41

Duty: gov't entities

Back 41

When D is a gov't entity, question of duty depends on function gov't is fulfilling that gives rise to cause of action

Proprietary function? Gov't treated like any other D

Discretionary activity (allocating resources)? no duty

Ministerial function? Duty once gov't has undertaken to act - must be non-negligent!

Public duty doctrine - no duty for police or fire dept unless there has been reliance on response of agency, special relationship between P and agency, OR agency has increased danger beyond what would otherwise exist

Front 42

Negligent Infliction of Emotional Distress

Back 42

P must have: been in zone of danger (where he was at risk of being physically injured);

have suffered some accompanying physical manifestation

(unless there's been mahandling of a corpse or negligent death telegram)

if D had preexisting duty to P, P can recover for NIED

Front 43

Ohio NIED

Back 43

Does not require proof of contemporaneous physical injury!

Also doesn't care about corpses

Front 44

NIED Bystander Actions

Back 44

Harm occurs to a loved one

P needs to have: been located near scene of accident, suffered severe emotional distress resulting from sensory and contemporaneous observance of accident, AND have close relationship with victim

Front 45

Ohio NIED Bystander Actions

Back 45

no zone of danger - looks at factors indicating harm was reasonably foreseeable, including whether P

was in close proximity to accident; was exposed to direct sensory experience of accident; and had close relationship to victim

Front 46

Wrongful Acts (3 kinds)

Back 46

wrongful conception, wrongful birth, wrongful life!

Front 47

Wrongful conception

Back 47

applies where injury is the birth of a healthy child

generally, these actions arise where P has had a negligently performed vasectomy or other negligently administered form of birth control

damages include cost of birth and cost to rectify ineffective contraceptive measure

courts are very reluctant to award costs of raising a child through age of majority

Front 48

Wrongful birth

Back 48

claim of parents for birth of an unhealthy child - generally stem from a physician's failure to diagnose a disability in the fetus, which P claims would have led her to not give birth

Not happening in many states

Front 49

Wrongful Life

Back 49

child's action for having been born unhealthy - most courts won't do this

Front 50

Ohio Wrongful Acts

Back 50

Ohio recognizes wrongful pregnancy or wrongful birth - limits damages to costs of pregnancy itself, not costs of rearing the child

No wrongful life claims

Front 51

Land Possessor Liability

Back 51

Standard of care applied to owners and occupiers of land varies according to which category of danger/activity were involved in injury to P:

Activities - injury to P came from conduct of persons on land

Artificial Conditions: injury to P derived from circumstances created by persons on the land - buildings, excavations, cultivation, etc.

Natural conditions - injury to P derived from circumstances not created by persons but existing on the land, such as natural bodies of water, trees occurring naturally, etc.

we ALSO have to look at what category of P it is

Front 52

Invitee

Back 52

person who enteres onto D's land at D's express or implied invitation, and who enters for purpose relating to D's interests or activities

Business invitee - invitee who enters onto D's land for purpose related to D's business activities or interests

Public invitee - member of public who enters onto D's land for purpose as to which land is held open to public

Considered a licensee or even a trespasser if he envers areas to which invitation does not extend, or if invitee stays in permitted area longer than was contemplated by invitation!

Front 53

D's duty to invitees

Back 53

to exercise reasonable care to prevent injuries to invitees caused by activities conducted on his land

ALSO duty to exercise reaosnable care to DISCOVER dangerous artificial coonditions that invitees would not reasonably be aware of, and to warn invitees of their existence OR make safe

dangerous natural conditions are the same as artificial

Front 54

Licensee

Back 54

person who entered D's land with D's express or implied permission, and who does not enter for a purpose benefiting D or D's activities

Front 55

D's duty to licensees

Back 55

D has duty to exercise reasonable care to protect them from injury arising from activities conducted by D or on D's behalf

warning is usually enough, but D also has to exercise reasonable care to discover licensees of whom he is not aware

D has duty of reasonable care to warn of any artificial conditions of which he is aware, which present an unreasonable danger, and of which licensee is unaware and unlikely to discover

D has NO duty to inspect his land for dangerous artificial conditions

Natural and artificial conditions treated the same

Front 56

Trespassers

Back 56

if P enters onto D's land without D's permission or without a privilege to enter, P is a trespasser!!

4 categories of trespasser: unknown, known, frequent, and children

Front 57

D's duty to unknown trespassers

Back 57

D has no duty of care to unknown trespassers

D has no duty to inspect land to discover unknown trespassers

Front 58

Duty to known trespassers

Back 58

Known if D knows about you or should have reasonably concluded that P trespassed

reasonable care to protect known trespasser from injuries deriving from ACTIVITIES conducted on land

D must exercise reasonable care to warn a known trespasser of hidden dangers of which D is aware and known trespasser is not

D has no duty to protect a known trespasser from injuries deriving from natural conditions on land

Front 59

Duty to Frequent trespassers

Back 59

if D knows or reasonably should know that trespassers frequently enter uponn a portion of his land, standard is the same as known trespassers, even if D is not aware that particular P is present on his land or has ever previously trespassed upon his land

Front 60

Duty to children trespassers

Back 60

activities and natural conditions: same as adults

sometimes heightened standard for artificial conditions - then D has duty to exercise reasonable care to prevent injury to children with dangerous artificial conditions

When heightened standard?

artificial condition is a foreseeable risk of unreasonable danger to trespassing children, if it is foreseeable that children are likely to trespass where artificial condition is located (attractive nuisance), child trespasser is unaware of risk, and risk of danger of artificial condition outweighs its utility

Front 61

Privileged Entrants

Back 61

police officers, etc. responding to an emergency, census takers, private persons exercising a privilege (to avoid a greater harm!)

either invitees or licensees depending on why they're there: if public purpose has a connection with D's activities connected on premises, invitee!

Police and firefighters are usually licensees

private persons are usually licensees

Front 62

Ps not on land, but adjacent to it

Back 62

Reasonable care to protect from unreasonably dangerous artificial conditions

Majority rule - no duty to protect from natural conditions

Minority rule - reasonable care to protect from natural conditions

Front 63

Landlords and tenants

Back 63

Common areas are landlord's responsibility - sometimes LL still has a duty in areas others possess

no duty to warn of or repair patent defects (dangerous natural or artificial conditions that are or should be reasonably apparent to tenant upon transfer of possession)

duty to warn of or repair latent defects (dangerous natural or artificial conditions which tenant is unaware of and which are not reasonably apparent to him and which LL knows about)

3rd parties - traditional view: no duty - modern view: licensees or invitees of tenant treated like tenant themselves

Front 64

Sellers of Land

Back 64

where D transfers both possession and ownership of land to another, no further duty to protect anyone! UNLESS

D has duty to disclose to purchaser any hidden dangerous conditions of which he knows or should know, and which buyer reasonably might not discover - extends to purchaser's invitees and licensees as to injuries

If D actively conceals this condition, duty to disclose continues until purchaser actually discovers dangerous condition and remedies it

Front 65

Standard of Care (generally)

Back 65

Generally: you breach a duty to P if you fail to conduct yourself as a reasonable person would in the same circumstances (reasonable person with same physical characteristics as D - but NOT intoxication or mental illness)

BUT if D possesses greater knowledge or expertise than average, we hold them to that standard

Emergency situation - act as a reasonable person would behave in the emergency (unless he is at fault)

Front 66

Breach of General Standard of Care

Back 66

Burden of Precautions - if burden to D of taking precautions against threatened risk was outweighed by likelihood that P would be injured by risk-producing activity, and how bad it is, then D failed to act as a reasonable person

greater benefit society derives from D's activity, more likely D has not breach by merely engaging in the activity or not undertaking certain precautions

Front 67

Standard of Care for children

Back 67

reasonable person standard specifically takes age into account when D is a minor

traditionally: <6, can't be negligent; 7-13, rebuttable presumption of non-negligence; 14 and up rebuttable presumption that D can be negligent

Children engaging in adult activities are required to conform to adult standard of care

Front 68

Statutory standard of care (negligence per se)

Back 68

Statutory standard of care wins over traditional tort standards



Negligence per se! Statute has effect of establishing standard of care ONLY when all following conditions are present:

Type of injury statute seeks to prevent

member of class intended to be protected

violation not excused - would be excused when compliance would have resulted in a harm greater than harm produced by violation, OR would have been impossible

Front 69

Standard of Care: Professionals

Back 69

Ds who engaged in certain activities held to a higher standard of care to public or their customers (historically) - common carriers and innkeepers have highest degree of care

Other professionals: customary practice of professionals in good standing

Deviation from custom - duty breached

Compliance with custom - no breach

Specialists particularly likely to be held to a national standard - others are standards of community

Don't inform P about risks and alternatives to proposed medical procedure? traditionally battery - still is with gross deviation from consent, but nondisclosure is usually malpractice - what would a doctor in good standing customarily divulge? All material risks

Front 70

Breach of Duty

Back 70

failure to conform to applicable standard of care

Front 71

Res ipsa loquitur

Back 71

Where P does not know and cannot effectively determine specifically what D's injurious conduct was

event would not occur without negligence (trier of fact looks at common experience or P's evidence) - a more likely than not standard

more likely than not D's negligence caused event

P not responsible for event (doesn't matter than P placed himself in situation of peril or didn't take precautions to avoid injury)

Front 72

Cause in fact

Back 72

P needs proof of cause in fact by a PREPONDERANCE of the evidence!

but-for test - D's conduct was cause-in-fact of an event if that event would not have occurred but for the existence of the conduct

substantial factor test - if conduct was a substantial factor in bringing about the injury (like when 2 or more D's conduct results in injury and each D's conduct alone would be sufficient) - remember, these people jointly and severally liable!

Alternative liability theory - P's injury arises from negligent conduct of two or more INDEPENDENTLY acting Ds, only ONE of whom can actually be responsible, and P can't establish which one it is, each D's conduct regarded as cause in fact unless D can prove it wasn't him - burden shifting! (Summers v. Tice)

proof - need to prove cause in fact by preponderance of evidence!

Front 73

Slip and fall cases

Back 73

in cases where P is injured because of fall on D's premises, P must show evidence from which jury may reasonably infer unreasonable conduct on part of D (condition of item on which he fell - prove it was there long enough that D was unreasonable in not discovering and remedying the condition)

Front 74

Guest Statutes

Back 74

lots of states say drivers only owe non-paying passengers unless there's gross negligence or recklessness

Front 75

Proximate Cause - foreseeable P

Back 75

D needs to show cause in fact AND proximate (legal) cause of injury

D owes duty of reasonable care only to foreseeable Ps (those within risk of harm created by D's unreasonable conduct)

Majority view - Ps in the zone of danger - minority - you got hurt due to breach, you're good

Front 76

Prox cause - Eggshell Plaintiff

Back 76

if D's conduct is a substantial factor in bringing about harm to another, mere fact that D neither foresaw nor should have foreseen extent of harm prevents him from liability!

D is liable for full consequences of P's injury, even though, due to P's peculiar susceptibility to harm (which D didn't know about), consequences more severe than in a normal person

Front 77

Prox cause -Superseding Cause

Back 77

unforeseeable, intervening cause that breaks chain of causation between initial wrongful act and ultimate injury, and thus relieves original tortfeasor of any further liability

Examples: naturally occurring phenomena; criminal acts of third persons; intentional torts of third persons; or extraordinary forms of negligent conduct

Front 78

Prox cause - Intervening force

Back 78

intervening force is one that actively operates in producing harm to another after the actor has already committed his negligent act or omission

Generally, D will be held liable for harm caused by foreseeable intervening forces

Because rescuers are foreseeable, original tortfeasor will be liable for ordinary negligence of rescuer

original tortfeasor usually liable for ordinary negligence of P's treating physician or nurse

Original tortfeasor usually held liable for diseases contracted or subsequent injuries sustained because of impairment of P's health resulting from original injury

D liable for negligent efforts on part of persons to protect life or property interests endangered by his negligence

Situations where P suffers subsequent injury after original injury, original injury was substantial factor in second accident, original tortfeasor is liable!

Front 79

Prox cause - when is an intervening force a superseding cause?

Back 79

Considerations: the fact that its intervention brings about harm of a different kind from that which would otherwise have resulted from D's negligence

Fact that its operation or consequences thereof appear to be extraordinary and unforeseeable after the event

and fact that the intervening force is operating independently of any situation created by D's negligence

Front 80

Prox cause- rescuers

Back 80

negligent D owes an independent duty of care to a rescuer!

even when rescue efforts done negligently (not wanton though), negligent D will be liable for both personal injury and property damage, whether rescuer succeeds in injuring himself, person rescued, or stranger

Front 81

Actual Damages

Back 81

personal injury and property damages recoverable! Includes general and special damages, past and future pain and suffering, medical expenses, lost wage, loss of consortium, but NOT attorney's fees

P's duty to mitigate applies!

collateral source rule - payments made to or benefits conferred on injured P from other sources are not credited against tortfeasor's liability, even where they cover all or part of the harm for which tortfeasor is liable - includes insurance, employment benefits, gratuities, social legislative benefits (like disability)

Front 82

Punitive Damages

Back 82

an amount over and above compensation needed to make P whole - intended to punish D for egregious conduct and to act as a deterrent against future conduct by D or others

Available in tort cases when there has been willful, wanton, or malicious conduct

P never ENTITLED to punitive damages, but jury may award them at its discretion - but awards can be reversed or overturned if excessive

Due process requires punitive damages not be grossly excessive on three measures: degree of reprehensibility of D's conduct, ratio between P's compensatory damages and amount of punitive damages (shouldn't be more than 10x!), and difference between punitive damage award and civil or criminal sanctions that could be imposed

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Defenses to Negligence

Back 83

Contributory negligence, comparative negligence, and assumption of risk

Front 84

Defenses to negligence: contributory negligence

Back 84

Plaintiff's own negligence may bar his recovery - did plaintiff act as a reasonable person would under the same circumstances

D must prove by preponderance of evidence that P fell below relevant standard of care and that this failure was the cause in fact AND proximate cause of P's damages

contributory negligence does NOT bar recovery if P's theory is intentional tort, recklessness, or strict liability

risks or dangerous acts might be reasonable in an emergency

children - reasonable child standard

Negligence per se is applicable in contributory negligence

3rd parties - can impute contrib. neg to P - if P and contributory neg 3rd person are sufficiently related such that P would be vicariously liable for 3rd person's negligence or if P's claim against D is completely derivative of a third person who was contributorily negligent (wrongful death, etc)

Last Clear Chance doctrine - basis for recovery even where P is otherwise contributorily negligent - if injury to P could still have been avoided through a subsequent exercise of due care by D, then D is said to have had last clear chance to avoid harm and P's contributory negligence will NOT bar recovery

helpless peril - P's negligence has placed him in position of danger from whcih he cannot extricate himself (no LCC doctrine for P here)

Inattentive peril - P's contributory negligence has placed him in positon of danger from which he could escape if observant enough to recognize his peril (LCC okay here)

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Defenses to negligence: Comparative Negligence

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Pure comparative negligence - apportionment of damages tracks apportionment of fault perfectly (Assume this for MBE!)

Partial comparative negligence - damages apportioned only if D's responsibility exceeds P's responsibility. P responsible for 50% or more? No recovery (OHIO!)

2 or more Ds not jointly liable?
Aggregate system - % responsibilities of all Ds are combined and apportioned only if this total exceeds P's percentage of responsibility

Individual equality system - P does not recover anything if his responsibility exceeds that of any single D

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Defenses to negligence: assumption of risk

Back 86

P assumes the risk of injury from D's negligence if P expressly or impliedly consents to undergo risk created by D's conduct

Express: written or oral - relieves D of his obligation to act non-negligently toward P, as long as not void against public policy and language is clear

Implied:
Knowledge of danger - subjective standard

Appreciation of specific danger

Voluntarily subjected himself to danger - express (exculpatory clause) or implied from fact that P continued in face of known danger (might not be if there's a lack of alternatives)

Sports - courts often determine D has no obligation to be non-negligent toward P because of nature of activity

Assumption of risk may not be asserted where P is a member of class intended to be protected by statute, and D's conduct both violates statute and threatens risk the statute was designed to prevent

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Strict Liability - def and possession of animals

Back 87

D is liable for injuring P whether or not D exercised due care

Possession of animals: wild - generally have known dangerous propensities and we are therefore strictly liable to them

Domestic animals have known dangerous propensities only if a reasonable owner would realize that animal presented danger of death or injury - one bite rule! Domestic rule also applies to bulls, stallions, mules, rams, bees

If P is unknown trespasser? Usually no liability for your animals of any type. Any other type of trespasser? negligence only - EXCEPT for vicious watchdogs - always strictly liable

D strictly liable for any kind of trespass to land or chattels of P by wild animals if likely to escape or by livestock - domestic pets do not count

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Strict liability - abnormally dangerous activities

Back 88

judge determines whether activity is abnormally dangerous by considering if:

activity creates risk of serious injury to P, his land, or his chattels

risk cannot be eliminated by exercise of due care

activity not usually conducted in that area

dynamiting, crop-dusting, and exterminating! not fireworks

Principles of causation generally applicable to negligence are also applied in strict liability analysis

for strict liability, harm to P must have resulted from type of danger that justified classifying animal or activity as dangerous

unforeseeable, intervening force could relive strictly liable D from liability!

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Defenses to Strict Liability

Back 89

Contributory Negligence - D generally may NOT raise contributory negligence - EXCEPT when P knew of danger that justified imposition of strict liability and his negligence caused exactly that danger to be manifested

Comparative negligence - some states adopted comparative fault systems that reduce recovery of Ps whose negligence contributes to their own injuries involving strict liability situations

Assumption of risk - P may be found to have assumed risk of injury and be completely barred from recovery in a strict liability situation if P knows of and appreciates danger justifying imposition of strict liability and voluntarily exposes himself to such danger

Front 90

Strict Products liability def

Back 90

invoked when a defective product, for which an appropriate D is responsible, injures an appropriate P

Front 91

Proper Plaintiff for strict products liability

Back 91

in general: if strict liability otherwise applicable, any P injured while using defective product may recover damages from appropriate D - includes purchasers, consumers, family, friends, guests, employees

Modern trend: to permit someone not using defective product to invoke strict liability against appropriate D if reasonably foreseeable that such a P might be injured by defective product (bystanders who get hit when car with defective steering hits them) and rescuers

Front 92

Proper D - products liability

Back 92

commercial suppliers - at all levels of distribution chain

commercial lessors/retailers - subject to strict liability for defects in new goods they sell or lease

not one-time sellers or occasional sellers - not proper Ds because they are not in a position to further goals of tort (safer products and cost-spreading)

Front 93

Proper Context- products liability

Back 93

generally, providers of services are not held strictly liable for injuries received by their customers. IF defective goods are supplied along with services, strict liability is still not applicable so long as goods supplied were merely incidental to rendition of services
BUT restaurants frequently strictly liable as sellers of food - doctors, etc. are more services, so no strict liability

Front 94

Defect

Back 94

strict liability where a product is in a defective condition unreasonably dangerous

Manufacturing Defects - product manufactured in a form other than manufacturer intended

Design Defects - product manufactured as manufacturer intended, but still presents a danger of personal injury or property damage to P

Consumer expectation test - product is unreasonably dangerous when it is more dangerous than would be contemplated by ordinary consumer who purchases it, which ordinary knowledge common to community as to its characteristics - so reasonably foreseeable purchaser would not have expected it to present danger that resulted in injury - then strict liability!

Danger-utility test - product is defective if jury determines that danger it threatens outweighs its utility to society - also considers availability and cost of safer alternative designs (if one could have reduced the danger at a similar cause? strict liability)

Hindsight-negligence test - product is defective if a reasonable person, knowing of danger it presented, would not have placed it in a stream of commerce - presumes D knew of the risk

Absence of warnings - product may be considered dangerously defective when it is accompanied by inadequate warning! message to user fails to sufficiently describe danger, mention all dangers, or inconsistent with instructions for use of product

if P establishes manufacturer knew or reasonably should have known of danger presented by product and failed to take precautions a reasonable person would have taken to warn adequately, this will impose strict liability

Certain products are regarded as so obviously dangerous no warning is necessary - like knives

No warning about adverse reactions like allergies? Defective depending on severity of potential reaction and number of people expected to be affected

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Cause in Fact - products liability

Back 95

injury is attributable to D -usually proven by showing the defect that injured P was in existence at time it left D's control

May be necessary to establish that intermediate handlers did not mistreat/alter product

P shows injury was caused by defect by proving defect was substantial factor in injury

warning defects are hard with causation because P must prove that she would not have been injured by product had there been a warning on product or had warning been adequate

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Proximate cause - products liability

Back 96

principles of prox cause relevant to negligence are applied the same way to products liability, EXCEPT for where intervening conduct of third persons occurs

Negligent handling of product by third party is regarded as foreseeable and is NOT superseding cause - includes negligent handling not directly affecting defectiveness of product (like when someone hits your defective car)

D relieved of strict liability where intervening force is SOLE prox cause of harm (injury would not have been suffered but for superseding or intervening force, independently of act or omission which constituted D's negligence)

3rd party's criminal or intentionally tortious conduct is regarded as unforeseeable intervening force that supersedes D's wrongdoing, unless defect somehow increased risk that third party would engage in such conduct

Front 97

Damages - products liability

Back 97

Generally same as most torts EXCEPT:

pure economic losses, such as loss of profits due to defective product, additional expenses, etc may NOT be recovered by P in strict liability

Some jxs look to nature of harm threatened by defect to detrmine availability of damages in strict liability, rather than distinguishing between property damage and economic losses - any loss suffered is recoverable if caused by defect that threatened personal injury, even if actual loss did not include personal injury

Front 98

Defenses

Back 98

Misuse - if P uses product in a manner than is neither intended nor foreseeable, he has misused product and it cannot be defective!

Contributory negligence - P's unreasonable conduct not a defense to strict products liability unless P knew of the defect, comprehend the risks posed by defect, and voluntarily elected to expose himself to those risks (only assumption of risk was a defense to products liability)

P's continued use of product which P knows to be defective is NOT voluntary and not assumption of risk IF there are no practicable alternatives to such use

Where D can show his product was subsequently altered in an unforeseeable manner by someone in chain of distribution or third party, no liability

Comparative negligence - P's wrongful conduct that contributes, along with defective product, to his own injury reduces his recovery in some amount (misuse, abnormal use, or independent negligence situations - not failure to discover defect)

Front 99

Products liability on a negligence theory (rather than strict liability)

Back 99

P must establish greater personal degree of fault! Negligent conduct should result in liability for:

commercial D selling used goods and unreasonably passes on defective product or negligently fails to discover defect, D repairing used goods, D leasing real property, D providing services, and franchisors

Front 100

Elements of negligence products liability

Back 100

Duty owed to foreseeable P - no contractual relationship required

Breach of duty - reasonable person standard of care - if inspection would have led them to realize product dangerous and they didn't? breach! except if packaged from manufacturer

causation - same as negligence

damages - same as strict liability

defenses - same as negligence

Front 101

Products Liability on Warranty theory

Back 101

liability arises from fact that product is not as represented

Express warranty - D made representation as to nature or quality of product - can occur via advertising, during negotiations for purchase, or as a provision of the contract of sale

implied warranty - where merchant deals in goods of a particular kind, sale of such goods constitutes implied warranty that those goods will be merchantable (average quality for goods of that kind and generally fit for purpose for which such goods are normally used) OR where D knows or has reason to know that P is purchasing goods for a particular purpose AND P is relying upon D's skill or judgment to furnish appropriate goods

defenses - disclaimer (goods sold "as is" - but can't be put in a warranty); failure to notify seller of breach within reasonable time; contributory and comparative negligence; assumption of risk (P voluntarily and unreasonably continues to use product after he discovers that it is not fit for the purpose purchased

Front 102

Nuisance (types)

Back 102

public nuisance, private nuisance, defenses, remedies

Front 103

Public nuisance

Back 103

unreasonable interference with a right common to general public

Circumstances that might sustain public nuisance holding: whether conduct involves significant interference with public health, safety, peace, comfort, or convenience; whether conduct is proscribed by statute etc.; and whether conduct is of a continuing nature or has produced a permanent or long-lasting effect, and as the actor knows or has reason to know, has a significant effect upon the public right

To recover damages in INDIVIDUAL action - P must have suffered kind of harm DIFFERENT from that suffered by other members of public

to enjoin or abate? P mus have right to recover damages, have authority as public officer or public agency to represent state or a political subdivision in the matter AND have standing to sue as rep of general public, as citizen in a citizen's action, or as a member of a class in a class action

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Private nuisance

Back 104

substantial (offensive, inconvenient, or annoying to an average person) and unreasonable interference with plaintiff's use and enjoyment of land

P cannot complain of nuisance based on conduct that would otherwise be relatively harmless because he devoted his land to unusually sensitive use

unreasonable: gravity of P's harm outweighs utility of D's conduct OR if intentional, harm caused by D's conduct is substantial and financial burden of compensating for this and other harms does not render unfeasible the continuation of the conduct - also, complaince with applicable zoning ordinances, priority of occupation, extent of interference, etc.

liability only to those who have property rights and privileges in respect to use and employment of land affected - possessors of land, owners of easements/profits, owners of nonpossessory estates in land that are detrimentally affected by interference with its use and enjoyment

D subject to liability ONLY if his conduct is legal cause of invasion of another's interest and invasion is either intentional and unreasoanble, or unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct

Front 105

Defenses to nuisance

Back 105

Contributory Negligence - but not when harm is intentional or reckless - when nuisance results from abnormally dangerous condition, contributory neg only if P has voluntarily and unreasonably subjected himself to risk of harm

Assumption of Risk - same as other torts

Coming to the nuisance - fact that P has acquired or improved land after nuisance is a factor to be considered in determining whether nuisance is actionable

Compliance with statute - relevant and persuasive, but not absolute, defense to nuisance arises upon evidence that D's conduct was consistent with applicable administrative regulations (zoning ordinance or pollution control reg)

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Remedies to nuisance

Back 106

Usually damages, BUT if it's inadequate or unavailable, injunctions after balancing economic hardship to parites and public interest in D's activity continuing

P can enter D's land and personally abate nuisance after notice to D and D's refusal to act - but only REASONABLE action necessary to terminate nuisance

Prohibitory injunction, mandatory injunction, temporary restraining order, permanent injunction

Front 107

Injunctions

Back 107

Prohibitory - most common - court order to refrain from doing particular act

Mandatory injunction - order to do particular act (subject to heightened scrutiny - facts and law clearly favor moving party)

Temporary Restraining Order - is P likely to succeed on merits? entitled to relief demanded? would denial produce waste or great injury? in public interest?
Must give notice to other party - emergency TRO granted without notice can only be for a certain period of time

Permanent injunctions - P must have prevailed on substantive claim and shown a need for continuing protection to be eligible
Final judgment - but can be set to expire by own terms

Front 108

Defamation def and what to check for

Back 108

P must establish that D published defamatory material concerning P that caused reputational damage

Check for: defamatory message, certain pleading problems, publication of message, type of defamation, damages, common law defenses, and constitutional issues

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Defamatory Message

Back 109

Lowers P in esteem of community or discourages third persons from associating with P

Usually only statements of fact, BUT sometimes opinions which imply speaker knows certain facts to be true (if a reasonable person would interpret statement as one of fact)

defamatory per se if it's apparent on the face of message that it will injure P's reputation - otherwise (per quod) you need other facts and you have to: plead and prove inducement, establish defamatory meaning by innuendo, and show that he himself was the intended P by colloquium

Defamatory message must be understood by person who receives it!

Judge decides whether statement COULD be defamatory, and jury decides whether it was

Front 110

Defamation - Pleading Problems

Back 110

Party suffering defamation MUST be a living person or existing organization!

Defamation of a close relation to P does NOT matter - you can only sue for yourself

Defamation of large group - no claim for any one member of group - if small enough, all have standing

Front 111

Defamation- Publication

Back 111

Any form of communication may be defamatory!

Message MUST be communicated to a third person who receives and understands it to be def - still works if D negligently allowed it to be communicated to third persons

Republication: Any person who repeats defamatory message is liable as a publisher - even if they say "allegedly" or that it's not their opinion! All persons who participate in originating a defamatory message are liable as primary publishers

When original publisher could reasonably foresee that defamatory message would be republished, he's liable for additional damages!

Person who distributes only liable if he knew or should have known that material contained defamatory messages

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Types of defamation

Back 112

Libel - defamatory message embodied in any relatively permanent form (writing, recording, sculpture, picture)

Libel per quod - libel as to which it is not apparent on the face of the communication that it's defamatory

Slander - defamatory message not preserved in permanent form

Slander per se - so harmful it's presumed P suffered damage - Crime involving moral turpitude, loathsome disease (not insanity!), bad things about him professionally, imputing unchastity to a woman

Front 113

How to distinguish between libel and slander

Back 113

look at: permanence of the form, area of dissemination, extent to which message was planned rather than spontaneous (more permanent, widely disseminated, and planned, more likely to be libel)

Front 114

Defamation - Damages

Back 114

Pecuniary - quantifiable monetary losses suffered by P due to injury to reputation - must present evidence of specific actual monetary losses (must establish for slander)

General - nonpecuniary injury to reputation (humiliation, loss of friends, etc.) - jury estimates amount of presumed damages - no proof of actual damages needed for slander per se or normal libel

Punitive - damages to punish and deter future wrongful conduct - P must make additional evidentiary showing of evil intent

Front 115

Common law defenses

Back 115

Truth - P must prove falsity as part of prima facie case

Absolute privilege - on floor of legislature, participant in judicial proceedings, quasi-judicial proceedings, policy-making officials (if related to duties), between spouses, broadcast media compelled to let third party use its facilities

qualified privilege - D is not held liable unless he loses privilege - communication reasonably necessary to protect or advance own legit interests, matter of interest to recipient, matter of public interest to one empowered to protect interest, criticism of matter of public interest - D bears burden of proving privilege - loses it IF:
Malice (if D's primary motive in publishing was something other than furthering interest that justified privilege); exceeds scope of privilege; D doesn't believe truth of communication - P bears burden of establishing these conditions

consent - generally applicable consent

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Constitutional issues with defamation

Back 116

Is P a public official or figure? Sullivan test! Must establish D acted with malice

Public official - gov't official who has/appears to have substantial responsibility over gov't operations (even police officers)

Public figure - either celebrity OR public figure for limited issues

Malice - knowing falsity or recklessness as to truth or falsity - D must actually know defamatory message was false, OR must have actually entertained serious doubts about truth (reckless disregard)

Subject matter of defamatory statement: need negligence if defamation is matter of public concern (actual malice for punitive/pecuniary damages) - private concern? no malice for any damages

availability of damages - where negligence is applicable degree of fault required and P does not show malice, P may only recover actual damages

Front 117

Invasion of Privacy

Back 117

when D unreasonably intrudes into P's seclusion

Wrongful conduct is interference with P's seclusion - physical intrusions included! Must be highly objectionable to reasonable person

Seclusion - p's right to physical solitude or privacy of personal affairs or concerns

Damages - compensatory (mental distress unaccompanied by physical injury) and punitive (sometimes)

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Invasion of privacy - appropriation of identity or likeness

Back 118

unauthorized use of P's identity or likeness for D's commercial advantage

P bears burden of proving he did not consent

identity/likeness - any object or characteristic sufficient to identify P

Must be in connection with promotion of product or service - economic benefit by itself is not enough

Front 119

Public Disclosure of private facts

Back 119

D unreasonably discloses private facts about P to the public

mus be highly offensive to a reasonable person and not of legit public concern

single third person does not equal public

must be aspect of P's life not open to public view or inspection and not a matter of public record

Compensatory damages okay

Not actionable when publication is newsworthy! includes celeb pictures

Front 120

Portrayal in a False Light

Back 120

D publishes matters that portray P in a false light - MUST communicate material to substantial number of people

False light - attributing to P views he does not hold or actions that he did not take AND that a reasonable person would find it highly offensive

compensatory and punitive damages

If P portrayed in false light as to matter of public interest, P must prove that D acted with malice (knowledge of falsity or reckless disregard for truth)

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Defenses and Privileges to invasion of privacy

Back 121

Truth - NOT a defense to appropriation or intrusion, since truth or falsity is not a relevant issue - BUT truth is a complete defense to portrayal in a false light

Consent - defense to disclosure, intrusion, and false light to same extent as any other intentional tort - P required to prove lack of consent as element of prima facie case for appropriation

Privilege - absolute and conditional privileges applicable to defamation should be available as to public disclosure of private facts and portrayal in false light

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Wrongful institution of legal proceedings

Back 122

malicious prosecution, wrongful institutions of civil proceedings, and abuse of process

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Malicious prosecution

Back 123

institution of criminal proceedings by D done for improper purpose and without probable cause that terminate favorable for P and cause P damages

Does not count if you just give info to authorities and rely on their discretion as to whether to prosecute

D lacks probable cause when a reasonable person possessing same facts as D would not have believed P was guilty, OR D did not actually believe P was guilty

Damages - harm to reputation and emotional distress

Defenses - Privilege (judges, prosecutors, and other law enforcement officials are absolutely privileged), or if D can prove P was guilty by preponderance of evidence (still can do this if criminal proceedings against P were terminated - higher burden of proof)

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Wrongful Institution of Civil Proceedings

Back 124

person who takes active part in initiation, continuation, or procurement of civil proceedings against another is subject to liability to the other for wrongful civil proceedings IF:

D acts without basis and primarily for purpose other than securing proper adjudication AND except where they are ex parte, proceedings have terminated in favor of person against whom they are brought

Front 125

Abuse of Process

Back 125

where D intentionally misuses judicial process (civil or criminal) for purpose other than that for which process is intended (parallels malicious prosecution)

P need not show D's lack of PC, as proof of D's improper purpose serves same function

Front 126

Economic Torts (list)

Back 126

intentional misrep, negligent misrep, interference with contractual relations, interference with prospective advantage, injurious falsehood

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Intentional Misrepresentation (FRAUD!)

Back 127

Intentional misrep by D, made with scienter, which is material and justifiably relied upon by P and which causes damages to P

False assertion, Active concealment, or Omission of fact will work

D must intend P will act or fail to act in reliance on misrep

Scienter - when D makes misrep knowing it to be false or recklessly possessing insufficient into as to its truth

Material: if it would influence a reasoanble person in determining his course of action in the particular transaction at issue - OR if D knows that P actually regards it as important

P has no duty to investigate

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Negligent Misrep (Ohio)

Back 128

Usually not actionable!

Ohio - when one, in course of business, profession, or employment, or in any other transaction in which he has a pecuniary interest, failing to exercise reasonable care or competence in obtaining or communicating the info, supplies false info for guidance of other in their business transactions (usually fiduciary-like relationship)

P recovers only for pecuniary loss suffered as result of reliance on misrep, NOT benefit of his bargain with D

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Interference with Contractual Relations

Back 129

Contract must: be in force and effect, be legal, and not be opposed to public policy (usually not contracts to marry though)

D must have caused interference - not just benefited

where damages can be compensated with money, action at law is appropriate

Front 130

Interference with prospective advantage

Back 130

protects the probable expectancy interests of future contractual relations of a party, such as prospect of obtaining employment or opportunity to obtain customers

D liable if conduct unlawful or malevolent

Defenses: privilege of competition - not a tort to beat a business rival to prospective customers!

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Injurious falsehood (trade libel)

Back 131

false statement made to another by Ds that causes economic injury to P

P bears burden of proving falsehood to third person

D must intend to cause others to not do business with P

recovery only for pecuniary losses that P proves have been realized or liquidated (specific lost sales)

Defenses: consent and privilege

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Vicarious liability - employer-employee (respondeat superior)

Back 132

employer liable for injuries caused by negligence or strict liability of an employee if tortious act occurred within scope of employment

Frolic - major deviation, outside of scope

Detour - small deviation from employer's directions - within scope

scope of employment - so closely connected with what the employee was hired to do and so fairly and reasonably incidental to it that they may be regarded as methods, even though improper

Intentional trots generally not given respondeat superior - UNLESS it's to further employer's purpose, even misguidedly

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Independent contractor

Back 133

D generally not liable for torts committed by someone he has engaged as independent contractor - no right to control their activity!

UNLESS - contractor undertakes duty the law does not permit to be delegated to another OR contractor engages in inherently dangerous activities - any activity with high degree of risk in relation to particular surroundings

Front 134

Joint Enterprise (partners and joint venturers)

Back 134

vicariously liable for each others' torts if those torts were committed in the course and scope of partnership or joint venture

Partnership - legal relationship arising from agreement between two or more persons to operate business for profit

joint venture - present when two or more people engage in concerted activity for common purpose and each person as mutual right to control activity

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Interference with prospective advantage

Back 135

protects the probable expectancy interests of future contractual relations of a party, such as prospect of obtaining employment or opportunity to obtain customers

D liable if conduct unlawful or malevolent

Defenses: privilege of competition - not a tort to beat a business rival to prospective customers!

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Injurious falsehood (trade libel)

Back 136

false statement made to another by Ds that causes economic injury to P

P bears burden of proving falsehood to third person

D must intend to cause others to not do business with P

recovery only for pecuniary losses that P proves have been realized or liquidated (specific lost sales)

Defenses: consent and privilege

Front 137

Vicarious liability - employer-employee (respondeat superior)

Back 137

employer liable for injuries caused by negligence or strict liability of an employee if tortious act occurred within scope of employment

Frolic - major deviation, outside of scope

Detour - small deviation from employer's directions - within scope

scope of employment - so closely connected with what the employee was hired to do and so fairly and reasonably incidental to it that they may be regarded as methods, even though improper

Intentional trots generally not given respondeat superior - UNLESS it's to further employer's purpose, even misguidedly

Front 138

Independent contractor

Back 138

D generally not liable for torts committed by someone he has engaged as independent contractor - no right to control their activity!

UNLESS - contractor undertakes duty the law does not permit to be delegated to another OR contractor engages in inherently dangerous activities - any activity with high degree of risk in relation to particular surroundings

Front 139

Joint Enterprise (partners and joint venturers)

Back 139

vicariously liable for each others' torts if those torts were committed in the course and scope of partnership or joint venture

Partnership - legal relationship arising from agreement between two or more persons to operate business for profit

joint venture - present when two or more people engage in concerted activity for common purpose and each person as mutual right to control activity

Front 140

Owner of Auto or Driver

Back 140

traditionally, owner of auto had NO vicarious liability for torts committed by person driving car with their permission

now, some jxs have family car doctrine - vicarious liability for members of owner's family or household - or any one they let drive it (permissive use)

owner of auto directly liable for negligence by permitting person to drive whom owner reasonably should have realized presented a risk of harm to others

Front 141

Parent-child

Back 141

normally no vicarious liability for crimes of your kids

Front 142

Bailor-Bailee

Back 142

bailor not vicariously liable for torts of bailee

Front 143

Tavernkeepers

Back 143

historically no, but now some states statutorily impose vicarious liability on tavernkeepers as to injuries to third persons caused by drunk patrons

Front 144

Joint and Several Liability

Back 144

All Ds Liable - where two or more Ds acting in concert injur P or where two or more Ds act independently and injure P and injury can't be split - P can get money form either D

contribution - D can compel others to contribute equal share toward any judgment satisfied by P against one of them - not applicable where Ds intentionally injured P

indemnity - one of two or more Ds responsible for P's injuries may in some situations cause one or more of other Ds to satisfy ENTIRE amount of Ps damages (1 D only vicariously liable for tort of another directly liable D; sometimes if one D was more wrongful than another)

Front 145

Survival of action and wrongful death

Back 145

survival of actions where P suffered personal injuries - most jxs

only if property damage - minority

pain and suffering does not survive in some jxs

punitive damages do not survive tortfeasor - most jxs

Front 146

Satisfaction and Release

Back 146

satisfaction - when more than one D is liable for P's injuries, but P recovers fully from one D

release - if P agreed with on D to give up his rights in exchange for settlement, then P lost his rights against all other Ds as well (most states don't do this anymore)