Torts

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Tort

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A civil wrong other than breach of contract, for which the law provides a remedy.

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Tort 2

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A civil wrong, wherin one person's conduct causes a compenscible injury to a person, property, or recognized interest of another, in violation of a duty imposed by law.

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Transferred Intent

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When the defendant intends to commit one tort, but instead (or in addition), commit another tort to the same plaintiff, and/or commits the same and/or different tort to a different plaintiff.

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Battery

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Act by defendant that intentionally causes a harmful or offensive contact with the plaintiff's person.

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Assault

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Act by defendant that intentionally causes reasonable apprehension in plaintiffs of immediatley receiving a battery.

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False Imprisonment

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Act by defendant that intentionally causes the plaintiff to be confined to a bounded area.

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Intentional Infliction of Emotional Distress

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Extreme and outrageous conduct by defendant that intentionally or recklessly causes severe emotional distress in plaintiff.

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Trespass to Land

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An intentional act by defendant that causes a physical invasion of plaintiff's land

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Trespass to Chattel

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An intentional act by defendant that causes an interference with plaintiff's possessory interest in Chattel

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Conversion

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An intentional act by defendant that causes an interference with plaintiff's possessory interest in chattel so severe as to warrant a forced sale

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Self-Defense

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When defendant has a reasonable belief that a tort is about to happen to his person, he may use reasonable force to prevent such harm.

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Defense of Others

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When defendant has a reasonable belief that a tort is about to happen to an innocent third-party, he may use reasonable force to prevent such harm.

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Defense of Property

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When defendant has a reasonable belief that a tort is about to happen to his property, he may use reasonable force to prevent such harm.

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Negligence

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A duty to confrom to a standard of conduct that is breached by the defendant and the breach is the actual and proximate cause of plaintiff's damages.

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Duty

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Only foreseeable plaintiff's are owed a duty of care.

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Foreseeable Plaintiff's

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Plaintiff is generally a clearly foreseeable plaintiff

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Standard of Care

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General-reasonable prudent person
Specific-Standard of Care
Custom or Usage
Emergency situations
Children
Professionals
Automobile statutes
Common Carriers and innkeepers
Bailments
Owners and Occupiers of land
Control of 3rd persons

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Foreseeable Plaintiff's - Third Parties

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The breach of duty to one person causes the injury to a third party

Must be in the foreseeable zone of Danger
Minority Rule-plaintiff is any person whose harm is from an unbroken sequence of events started by defendants act.

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Bailment

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A bailment is created when one person (bailor) delivers personal property to another (bailee)

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Negligence Per Se

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A statute specific duty
1)the statute provides for criminal penalty and clearly defines a standard of conduct
2)the plaintiff is within protected class
3)the statute was designed to prevent the type of harm suffered by plaintiff.

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Negligent Infliction of Emotional Distress

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1-Must suffer physical injury (exception-erroneous report of relative's death or mishandling of corpse)
2-must be within "zone of danger"
EXCEPTION- under the bystander rule-must prove 1)Defendant is negligence 2)Bystander & victim are closely related
3)Bystander is present at the scene
4)Bystander perceived or observed the event
5)physical manifestation of emotional distress

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Breach

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When the defendant's conduct falls short of the required standard of care

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Res Ipsa Loquitur

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"the thing speaks for itself"
1-the accident is a type that would not normally occur unless someone was negligent
2-the instrumentality causing injury was in defendants sole control
3-the plaintiff did not contribute or cause the injury

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Actual Cause

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"but for" test
But for your wrongful conduct this would not have occured

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Proximate Cause-Legal Cause

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Direct-No intervening acts
Indirect-there is an intervening act by third-party or act of God between defendants act and plaintiff's injury
LIABLE if act is forseeable

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Independant intervening acts

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Negligent acts by 3rd person are foreseeable.
Intentional tors and criminal acts are usually not foreseeable
Acts of God:storms, flood, weather (foreseeable). earthquakes, lightnening (not foreseeable)

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Damages-Negligence

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Restore plaintiff to pre-injury status as far as possible

Economic injury (not in negligence)
Personal Injuries-Special (Medical expenses & Economic losses (lost earnings, impaired future earnings, permanent disability and disfigurement)
General damages-pain & suffering (Plaintiff has duty to mitigate)
Physical harm to property
Punitive-if willful or wanton

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Non-recoverable damages

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interest from date of damage and attorneys fees

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Collateral source rule

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damages will not be reduced because plaintiff received benefits from another source (eg. insurance)

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Remittitur

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award is so excessive as to "shock the conscience" -plaintiff given the choice of new trial or reduced award

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Additur

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so grossly inadequate-defendant given a choice increased award or new trial

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Defenses to Negligence

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Contributory negligence, Comparative negligence, Assumption of risk,

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Immunity

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Intrafamily immunity(family memeber could not sue another, limited to husband wife, parent child)Charitable Immunity(most jusrisdictions have eliminated), Government immunity (most states have eliminated)

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Strict Liability

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Liability without fault; absolute liability
Animals, Ultrahazardous or abnormally dangerous activity, Products liability
Defenses-assumption of risk, comparative negligence (reduction of damages award)
NO strict liability to trespassers

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Animals

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1. Trespassing animals-an owner is strictly liable for reasonably foreseeable damage done by the trespass of his animals
2. Personal injuries from wild animals not domestic(unless owner has knowledge of vicious propensity)

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Ultrahazardous or abnormally dangerous activity

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1)must involve risk of serious harm to persons or property,
2)must be one that cannot be performed with complete safety no matter how much care is taken
3)activity is not commonly engaged in the community

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Strict Products Liability

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a commercial supplier has an absolute duty not to put a defective product into the stream of commerce.

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Defective Product

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The defect must have existed when the product left defendant's control.
Manufacturing Defect
Design defect
Inadequate warning

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Strict Products Liability

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ABSOLUTE duty owed by commercial supplier not to supply a defective product that is breached by the defendant and the breach is the actual and proximate cause of plaintiff's damages.

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Negligent Product Liability

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REASONABLE duty owed by commercial supplier not to supply a defective product that is breached by the defendant and the breach is the actual and proximate cause of plaintiff's damages.

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Intentional Torts Product Liability

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Commercial supplier supplied a defective product with the desire or, knowledge of substantial certainty, that it will cause plaintiff damage.
Usually based on a battery theory. Very rare

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Implied Warranty

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IWM-goods are generally fit for ordinary purpose
IWFPP-buyer relies on sellers knowledge, skill and judgement to select suitable goods and seller is aware of it
Privity-buyer and family, household and guests

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Defamation

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A defamatory statement by the defendant, of or concerning the plaintiff, with publication to a third party, which results in damages to plaintiff.

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Defamatory statement

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any statement that has a tendancy to harm the reputation of the plaintiff. A dead person cannot be defamed

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Of or concerning plaintiff

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would a reasonable person understand that the defamatory statement referred to the plaintiff.

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Publication to 3rd party

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there must be a communication to a 3rd person who understood it. (intentionally or negligently) Repetition (plaintiff can recover for each repetition if its a separate publication. Single publication(additional printings=another publication)

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Damages to the plaintiff

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General or presumed by law and need not be proven

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Libel

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A defamatory statement that is recorded in writing or some other permanent form.

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Libel per se

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(Libel on it's face)
a statement that is libelous and defamatory on its face. General damages are presumed need not be proven

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Libel per quod

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(not defamatory on its face)
a statement wherein extrinsic facts are needed to prove that is defamatory statement. Special damages must be proven 1st

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Slander

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spoken defamation (oral). It is less permanent and in less physical form.
Repetitions: some oral communications may be considered libel. (How permanent, broad area, premeditated?) Special damages must be proven.

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Slander per se

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Conduct of business
Loathsome disease
Crime involving moral turpitude
Unchastity of women
Damages are presumed

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1st Ammendment-Constitutional Protection

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When the defamation involves
1)public official
2) public figure
3)a matter of public concern, or
4)media defendant, plaintiff must prove, in addition to the common law elements, fault on the part of defendant and falsity of the statement

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Fault on defendants part

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the type of fault that plaintiff must prove depends on the status of the plaintiff and/or the matter involved
Public Official-public figure-actual malice-private persons

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Falsity

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a defamatory statement is presumed to be false

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Damages

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Public figure/official-if actual malice is proved, then damages are presumed.
Private figure and matter of public concern-actual damages must be proved

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Defenses to Defamation

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Consent
Truth
Absolute privilege
Qualified Privilege
Defendant bears burden to prove privilege exists

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Mitigating factors

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1)Lack of malice
2)retraction
3)anger of speaker provoked by plaintiff
Not defenses to liability

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Trade Libel

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A statement disparaging the plaintiff's business, product or services for the purpose of persuading customers not to do business with plaintiff.
Must show loss of business

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Invasion of Right to Privacy

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1)Appropriation of plaintiffs name or likeness
2)Intrusion into plaintiff's seclusion
3)False light
4)Public disclosures of private facts

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Appropriation of plaintiff's name or likeness

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Unauthorized use by defendant of plaintiff's name or likeness for defendant's commercial advantage.
Unathorized use: no consent or contractual agreement
plaintiff's name or likeness: name, picture or voice
commercial advantage: used for advertising purposes. to sell a product or service
Damages: actual, nominal, injunction

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Intrusion into plaintiff's seclusion

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An objectionable intrusion by defendant into plaintiffs' private life.
Objectionable:to a reasonable person
Intrusion: act of prying or intruding
Plaintiff's private life: private place, conversation or matter. Plaintiff need not be aware of intrusion and photos taken in public are not actionable.

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False Light

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An objectionable publication by defendant that places plaintiff in a false light.
Objectionable-reasonable person
Publication: to the public, more than 1 person
False light: views that P does not hold or actions that P did not take.
1st ammendment applies if the matter is in public interest-malice must be proved

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Public Disclosure of private facts

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An objectionable public disclosure by defendant of private facts about plaintiff.
Objectionable:reasonable person
Public disclosure-publication: must be to the public, more than 1 person
Private facts: public record is not a private fact. Fact may be true and may still be liable.
1st amendment applies if matter is of legitimate public concern.

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Nuisance

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Substantial, unreasonable interference with the use or enjoyment of plaintiff's property
Substantial interference: must be offensive, inconvenient or annoying to the average person in the community
Unreasonable interference: must inflict injury that outweighs the utility of defendant's conduct
TL v PN: TL- intereference with exclusive possession by physical invasion. PN - intereference with the use or enjoyment

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Public Nuisance

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Unreasonable interference to the health, safety or property rights of the community.

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Intentional Misrepresentation

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Fraud. Misrepresentation of a material fact.
Scienter: knowing it was false or with reckless disregard to truth
Inducing reliance: intent to induce act or refrain from acting
Actual reliance: causation "but for"
Justifiable reliance: person lacks mental capacity, relied on fact, opinion is not justifiable (unless by someone with superior skills in the area)
Damages: actual pecuniary loss, may recover benefit of the bargain
NO DEFENSES

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Negligent Misrepresentation

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Negligent misrepresentation by plaintiff
1)plaintiff is a known party to have relied on the info (includes 3rd parties)
2)actual reliance (causation "but for")
3)justifiable(reasonable) reliance.
damages;
defenses-same as negligence

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Malicious Prosecution

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Institution of criminal proceedings against plaintiff. abscense of probable cause (insufficient facts to believe guilty)
damages-presumed
Prosecuters are immune from liability

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Wrongful Civil Proceedings

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Institution of civil proceedings against plaintiff. absence of probable cause(insufficient facts to believe guilty) damages presumed

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Abuse of Process

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Defendant's use of a legal process and purpose of the process is other than for what it was designed. Defendant is seeking some collateral advantage outside the legitimate ends of the legal process.

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Tortious Interference with contractual relationship

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valid contractual relationship between plaintiff and 3rd party, defendant KNOWS of this relationship, intentional interference to terminate the relationship (including making performance more difficult) and there is damage to plaintiff.

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Tortious Interference with Prospective Advantage

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Valid business expectancy between plaintiff and 3rd party, no contract exists (includes probable future business relationship that plaintiff has a reasonable expectation), defendant KNOWS of this expectancy, intentional interference to terminate expectancy and there is damage to plaintiff.
DEFENSES:defendant has a justifiable purpose (own business interest public interest) justifiable method.

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Survival Action

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Survival statutes reverse common law and allow cause of action to survive the death of the parties. Proceed as if parties are alive, awards come from or into decendants estate (subject to creditors) They include actions involving torts to property and torts resulting in personal injury EXCEPT: defamation, invasion of right of privacy, malicious prosecution

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Wrongful Death

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wrongful death acts grant recovery for pecuniary injury resulting to the spouse or other beneficiaries. (1-spouse and minor children, 2-adult children, 3-siblings and parents
Creditors have no claim.
recovery allowed-loss of support, companionship/consortium. No recovery for pain and suffering of decedent.

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Wrongful Birth

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Available when defendant denies mother the choice to abort, thus obligating a child to a wrongful life.

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Vicarious Liability

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When a party is liable for the tortious conduct of another because of the relationship between the tortfeasor and the party to whom the liability is imputed.

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Respondeat Superior

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"let the person higher up pay"

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Employers

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General rule: employer is liable for the torts of the employee committed within the scope of employment.
Intentional torts and criminal acts generally considered outside the scope of employment. EXCEPTIONS: force is authorized in the employment, friction is generated by employment, servant is furthering business of master.

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Frolic

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Pursuit of the employee's personal business as a substantial deviation from or an abandonment of the employment
Employer is NOT liable

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Detour

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Deviation that is sufficiently related to the employment to fall within its scope (slight deviation)
Employer IS liable
no liability for "coming & going"

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Independent Contractors

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An independent contractor is one who is engaged to perform a certain service fro another according to his own methods and manner: and is free from control and direction of his employer in all matters connected with the performance of the service except as to the results
Employer is NOT liable
EXCEPTIONS: the independent contractor is engaged in inheritently dangerous activities or the duty, because of public policy considerations, is non delegable

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Joint Enterprise

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When 2 people are in a business venture and have a common purpose and mutual right of control, then each may be vicariously liable for the tortious acts committed by the other as long as the tort is committed within the scope of the venture.

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Partnership

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When 2 people are in a business for profit, then each may be vicariously liable for the tortious acts committed by the other partner as long as the tort is committed within the scope of the partnership.

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Bailments

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the bailor is not vicariously liable for the tortious conduct of his bailee.

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Bailments-automobile

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General rule: automobile owners are not vicariously liable for the tortious conduct of another person driving his auto EXCEPT: Family car doctrin, permissive use statutes, negligent entrustment

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Family Car Doctrine

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many states hold the owner liable for tortious conduct of immediate family or household members who are driving with the owners express or implied permission.

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Permissive Use Statutes

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some states are imposing liability on the owner for damage caused by anyone driving with the owners consent

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Negligent Entrustment

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the owner may be liable for her own negligence in entrusting the car to a driver.

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Imputed Contributory Negligence

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A plaintiff will have imputed contributory negligence only where the plaintiff would have been vicariously liable for the negligence by the third party ("both ways test")

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Joint and Several Liability

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When 2 or more tortfeasors are either acting in concert or the injury is indivisible, then each tortfeaser is jointly and severally liable

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Satisfaction

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This is full payment by one of the tortfeasors in satisfaction of the judgements. Plaintiff cannot go after the other defendants.

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Release

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A surrender of plaintiff's cause of action-through contract or agreement, one tortfeaser is being released from liability
Common Law-1 released, releases all other defendants
Modernly-majority of the states hold that a release does not release any other tortfeasor unless it is expressly provided for in the release.

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Contribution

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Partial reimbursement
Allows any defendant that pays more than their share of damages to recover from other tortfeasors

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Methods of Apportionment

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Traditionally: Equal shares, each defendant pays equal share regardless of fault (minority rule)
Comparative contribution: proportional shares, each defendant pays in proportion to their relative fault (majority rule)
Can only be recovered from party that would have been liable. Does not apply to intentional torts.

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Indemnification

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Full reimbursement. Shifts the entire loss among the tortfeasors