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143 Cards in this Set

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Is hypersensitiviy a factor in determining whether an intentional tort committed?
No
Can a child or drunk be liable for an intentional tort?
Yes, no incapacity defense to intentional torts.
Elements of tort of battery
1. harmful or offensive contact AND

2. contact must be with the plaintiffs person
Harmful or offensive element of tort of battery
Contact is offensive when it is not permitted by person of ordinary sensitivity

(no hypersensitivies considered in intentional torts)
Is a tort committed when:

1. friend taps on shoulder
2. man strokes girls hair after she said she didn't want to talk to him
1. No tort of battery because this is type of touching normally permitted by people of average sensitivity.

2. This will go to jury for tort of battery. Sexual harassment is a category of battery litigation.
Contact has to be with plaintiff's person (element of tort of battery):

1. Does it have to be immediate?

2. does it have to involve d's body?

3. does it have to involve p's flesh?
1. No, poisoning lunch sandwich of plaintiff in morning is tort of battery.

2. No, e.g. d can commit battery with gun.

3. No, battery can be to anything connected to plaintiff, eg grabbing purse, kicking owner's dog (battery against owner of dog)
Elements of tort of assault
1. d places p in apprehension (meaning knowledge that may soon be touched in impermissible fashion)

2. of an immediate battery
Can assault occur when:

1. puny boy tells big strong man that he will hit him

2. when a tries to shoot b, but gun is unloaded

3. a verbal threat of action

4. A shakes fist in B's face. A says if you weren't my best friend, I would hit you.

5. A says I will hunt you down and beat you up after work today.
1. Yes, this is enough to place big man in apprehension (meaning knowledge that may soon be touched in impermissable fashion)

2. Yes, if b thinks the gun is loaded. Put self in plaintiff's shoes

3. No, need accompanying menacing conduct for assault. Mere words are not sufficient immediacy.

4. No, words negate immediacy.

5. No, not assault bc not placed in apprehension of immediate battery.
Assault element of immediate battery: Are mere words sufficient?
No, need accompanying menacing conduct for assault. Conduct is usually brandishing a weapon that could create harm.
Elements of tort of false imprisonment
1. Act of restraint

2. Confinement in a bounded area
Act of restraint
element of tort of false imprisonment
1. threats are sufficient
2. typical act is physical barriers
3. omission can be an act of restraint if duty to help someone move
4. act of restraint only counts if p is aware of it OR harmed by it
Is this tort of false imprisonment?

1. A leaves door open and tells B that he will murder B's son if leaves.

2. disabled passenger needs assistance getting off plane. Crew leaves w/out helping.

3. A locks B in room for 1 hour while asleep. A never knew.

4. A locks B in room for hour. B doesn't know of it but nurse can't get it to give medicine.
1. Yes, this is a threat that will operate on the mind of a person with ordinary sensitivy

2. Yes, omission is act of restraint bc crew had duty to help passenger off.

3. No, act of restraint only counts if p is aware of it.

4. Yes, bc B is harmed by it.
Confinement in a bounded area
(element of tort of false imprisonment)
1. Plaintiffs movement needs to be limited in all direction. Can be by terms of threat of placement of physical barrier

2. Confined place can't have reasonable means of escape that reasonable plaintiff could discover

2.
Is this the tort of false imprisonment?

1. Barricade on street so that can't go to right

2. Exclude entry

3. P locked into space with exit, but exit is dangerous or disgusting or humiliating or impossible to discover. (e.g. crawl through rat infested sewer pipe)
1. No, movement must be limited in all directions

2. No doesn't limit movement in all directions. Can violate other legal requirements.

3. Yes, assault if confined place without REASONABLE means of escape that reasonable person could discover
Elements of tort of intentional infliction of emotional distress
1. reckless satisfies intent

2. D must engage in outrageous conduct

3. P must suffer severe resulting distress (any form of severe distress is enough)
Define outrageous conduct
(element of iied tort)
Exceeds all bounds of decency tolerated in a civilized society.

- mere insults are never outrageous

- hallmarks of outrageousness: (1) d's bad behavior is engaged in continuosly or repetitively; (2) more likely outrageous if d is common carrier (transportation agency) or innkeeper; (3) P is member of fragile class of persons (eg young children, elderly, pregnant women, members of racial or religious minorities targeted by racially insensitive speech)
Might these situations meet the outrageousness of the tort of IIED?

1. A calls B a four letter word?

2. Phone call from creditor every night for month making serious threats.

3. Stranger calls kid four letter words

4. A puts rubber rattlesnake onto B's chair and watches from behind door. B is terrified of snakes has heart attack.
1. No, mere insults are never outrageous.

2. Yes, bc repetitive behavior

3. Yes, bc fragile class of persons.

4. Yes, if B knew of phobia. No, if B didn't know of phobia bc hypersensitivity not considered in intentional torts.
how is exploitation of known sensitivyt treated in IIED tort?
Meets outrageous element of tort.
Elements of tort of intentional infliction of emotional distress
1. reckless satisfies intent

2. D must engage in outrageous conduct

3. P must suffer severe resulting distress (any form of severe distress is enough)
Define outrageous conduct
(element of iied tort)
Exceeds all bounds of decency tolerated in a civilized society.

- mere insults are never outrageous

- hallmarks of outrageousness: (1) d's bad behavior is engaged in continuosly or repetitively; (2) more likely outrageous if d is common carrier (transportation agency) or innkeeper; (3) P is member of fragile class of persons (eg young children, elderly, pregnant women, members of racial or religious minorities targeted by racially insensitive speech)
Might these situations meet the outrageousness of the tort of IIED?

1. A calls B a four letter word?

2. Phone call from creditor every night for month making serious threats.

3. Stranger calls kid four letter words

4. A puts rubber rattlesnake onto B's chair and watches from behind door. B is terrified of snakes has heart attack.
1. No, mere insults are never outrageous.

2. Yes, bc repetitive behavior

3. Yes, bc fragile class of persons.

4. Yes, if B knew of phobia. No, if B didn't know of phobia bc hypersensitivity not considered in intentional torts.
how is exploitation of known sensitivyt treated in IIED tort?
Meets outrageous element of tort.
Intentional tort of trespass to land elements
1. Physical invasion

2. of land (includes air above and soil below out to a reasonable distance)

3. Intent requirement-that d got to challenged place on purpose--no requirement of awareness that crossed property line
Trespass to land?

1. hiking in state park and accidentally veer into private land.

2. Have heart attack and fall onto private land OR horse out of control and takes rider onto private land.

3. floodlights or project music onto neighbor's land

4. airplane flies over house

5. ball thrown over private property
1. Yes, even though no notice that left state park. Mistake no defense.

2. No, didn't purposefully/intentionally enter land.

3. No, Intangible forces are not trespasses because not PHYSICAL invasion.

4. No, not invasion of land out to REASONABLE distance

5. Yes, physical invasion by propelling ball through airspace a reasonable distance over private property
Physical invasion element to tort of trespass to land
1. enter land

2. throw or propel or project tangible objects onto private property.
Conversion and trespass to chattel
Both deal with deliberate damage or theft to personal property.

Differentiate by degree of harm. Small harm is trespass to chattels. Extensive harm is conversion

- personal property includes anything other than house or land
Remedy for
1) conversion
2) trespass to chattel
1) market value of car in undamaged state (you break it you buy it)
2) cost of repair
Trespass to chattel or conversion?
1. keying car
2. sledgehammer entire car
1. trespass to chattels, gets cost of repair
2. conversion, fair market value of of car in undamaged state
Affirmative defenses to intentional torts
1. consent
2. self-defense
3. defense of others
4. defense of property
Who can consent to intentional tort?
Person with capacity
When do children have capacity to consent?
1. can consent to childish things, e.g. to wrestle each other

2. can't consent to adult things, e.g. sex or surgery
types of consent to intentional torts
1. express consent (explicit permission)
--ignored when obtained by duress or fraud

2. implied consent

(a) arises from custom/usage--when goes to place where invasions are customary or usual

(b) based on d's reasonable interpretation of plaintiff's objective conduct
Intentional torts?

1. A consents to intercourse but B doesn't tell that have std.

2. A gets shoved hard on subway

3. A invites B to dinner and B brings flowers. A's lights dim, candles burning, etc. B kisses A.

4. A invites B over to watch tv in family room. A gets B. B goes into bedroom in other wing.
1. Yes, battery. A sues for battery. B defends with consent. A wins because consent is ignored when obtained by fraud or duress.

2. Not battery because implied consent arising from custom/usage. From using the subway where shoving is customary.

3. Battery if A consented based on her objective conduct.

4. Yes, trespass to land. A consented to tv in family room. B exceeded the scope of consent.
Any intentional torts question arising in sports game that refers to rules of game
Rules of the game are always irrelevant.

What is relevant is what is CUSTOMARY in the game.
Scope of consent to intentional torts
If D exceeds scope of consent, he is liable for a tort.
Requirements for valid
self defense
defense of others
defense of property
1. proper timing
(threat d is responding to is either imminent or in progress)
--No revenge

2. reasonable belief on part of d that there is a reasonable threat
--reasonable mistake is ok
Is intentional tort committed?

1. Someone preparing to slap you in face. You slap back or push their arm back.

2. A takes B's laptop. A shoots them.

3. A shoots rabid dog to save kids.

4. A flies private aircraft and lands on B's property, destroying corn crops.
1. No, ok as self defense. Use of force necessary under the circumstances.

2. yes battery by A bc can't use deadly force to protect property.

3. No conversion claim by dog owner against A bc defense of public necessity.

4. B sues for trespass to land. A has private necessity defense and is only liable for compensatory damages.
shopkeepers privilege
store owner can protect property by detaining shoplifters

--privilege applies when store acts with a reasonable belief of shoplifting.
--reasonable mistakes are ok
Scope of force permitted in self-defense, defense of others, defense of property
Force necessary under the circumstances
when is deadly force permissible?
In a life-threatening situation. When own or third person's life in jeopardy.

--Deadly force OR deadly traps never allowed in cases involving property.
Necessity defense in torts of trespass to land/chattel or conversion

- Two types of necessity defense
1. public necessity: when d invades p's property in an emergency to protect community as whole or significant group of people
--absolute defense of d

2. Private necessity: when d invades p's property in an emergency to protect an interest of his own
--limited or partial defense
Legal consequences that can arise in private necessity defense to intentional torts (conversion, trespass to land/chattel)
1. private necessity d must pay for actual harm he inflicts (compensatory damages)

2. private necessity d is never liable for nominal or punitive damages.

3. Right of refuge/sanctuary. As long as emergency continues, private necessity d is permitted to remain on p's land. He cannot be expelled, ejected, or forced off land. Landowner's privilge to chase away trespasser is suspended during emergency.
Defamation defined and elements
Statement that adversely affects reputation

1. defamatory language of or concerning the plaintiff
--reflects negatively on some trait of character
--person defamed must be living at time of defamation

2. Publication
--reputation is what other people think of you, thus defamation involves publication
--one person is sufficient for publication
--can be satisfied through negligence. Person need not intend to publish defamatory statement.

3. damages maybe
--some defamation claims have to prove the element of damages. Others don't
a) libel: Don't have to prove damages.
b) slander: Have to prove damages
Can statements of opinion be defamation?
Yes, satisfies element one of tort if listeners would assume that speaker has facts to back it up.
Subcategories of defamation
1) libel any defamation embodied in permanent format
--e.g. burned on cd, stored on hard drive of computer, filmed

2) slander: spoken defamation.
Types of slander
1. slander per se
- includes 4 topical categories and is very damaging to reputation
- don't have to prove damages

(a) any statement concerning p's business or profession

(b) p has completed crime of moral turpitude

(c) statement imputing on chastity to woman (any sexual conduct when single)

(d) statement that p suffers from a loathsome disease (leprosy, venereal disease)

2. slander not per se
-- need to prove damages
Defense to defamation
1. consent

2. truth (good faith belief NOT enough)

3. privilege: two kinds

(a) absolute
- conversation or written communication between married people
- officers of three branches of government engaged in official duties

(b) Qualified privilege
(REQs to get privilege: reasonable basis for any misstatement, limited to relevant information)
- speech on a socially useful occasion where we want to encourage candor
-
Defamation?

1. letters of recommendation
2. conversation between spouses about neighbor
3. people who speak to cops in police investigations
1. Not defamation bc qualified privilege applies because we want to encourage candor in this situation.

2. not defamation becaues absolute privilege applies to conversations between spouses
3. not defamation because qualified privilege occurs in socially useful occasion where we want to encourage candor
If underlying subject matter of defamation is of public concern, what extra elements must plaintiff prove and why?
1. falsity of statemetn and fault (malice) on part of defendant
2. to avoid chilling 1st amendment speech
MA follows what approach to defamation
Always follows the public concern approach, meaning that additional elements apply:

1. falsity of the statement
2. fault on the part of the defendant (malice)
Privacy tort of appropriation
Use of plaintiff's name or picture for commercial purpose without plaintiff's permission
4 types of privacy torts

(dignitary measure of damages)
1. appropriation (rt of publicity)

2. intrusion

3. false light (not in MA)

4. disclosure of private fact
newsworthiness exception to appropriation privacy tort
This eliminates possibility of tort conflicting w/ first am.

Not newsworthy: use for advertising or packaging or as trademark
Privacy tort?

1. SI puts tiger woods on cover

2. SI uses tiger woods to sell product

3. P is jewish. D tells lots of people that P is devout roman catholic.

4. Accountant mass mails copy of your tax return.

5. Registrar posts transcript on door. Doctor posts your med records on exam.

6. Tabloids publish that celebrity has drug problem

7. A is 28 year old out and politically active gay man. A is not out at work. B tells office that saw A at gay pride parade.
1. No, bc of newsworthiness exception to appropriation privacy tort.

2. appropriations violation. Newsworthiness exception doesn't apply to advertising

3. Yes, false light privacy tort. Even though not defamation.

4. tort of disclosure of private fact

5. tort of disclosure of private fact.

6. Not tort of disclosure of private fact because of newsworthiness exception

7. Not tort of disclosure of private fact because it was NOT a private fact.
intrusion
invasion by the defendant of a plaintiff's seclusion in a way objectionable to the average person.

- When plaintiff has expectation of privacy at time of violation

- no requiremetn that be a trespass


e.g. wiretapping, electronic surveilance, interception of phone calls, secret videotaping AND low tech analogies such as peeping
Tort of privacy of false light
Widespread dissemination of a major misrepresentation about the plaintiff that would be objectionable to an average person

- misrepresentation can be defamatory or not defamatory
- no magic number for widespread dissemination
- Doesn't require deliberate spreading of lie by D. Tort actionable even if D believes statement is correct. Good faith doesn't protect from liability.

**not recognized in MA
Tort of disclosure of private fact
Widespread dissemination of confidential information about p that would be objectionable to the average person.

--newsworthiness exception--not actionable tort if public right to know the confidential information. INterpreted broadly.

--dual life limitation--when plaintiff operating in two spheres and tries to keep them separate from each other. NOt actionable tort if individual transports info from one sphere to other.
Defenses to privacy torts
1. consent
- defense to all four privacy torts

2. Absolute and qualified privileges for defamation law
--spouses, gov officers
--socially useful speech situations
--(defenses only to false light and disclosure)
Four elements of negligence
1. duty

2. breach

3. causation

4. damage
Analysis of duty element of negligence

(two inquiries)
1. to whom do we all owe a duty? foreseeable victims

2. how much care must we all give to foreseeable victims to avoid liability?
To whom do we all owe a duty?
** foreseeable victims

--unforeseeable victims always lose negligence claims
--rescuers are always owed a duty of care even if injury to rescuers was unforeseeable at beginning of situation.
Claim for negligence?

1. A rushes to catch train and jump to train. RR employee helps push A onto plain. A drops package containing explosives and hurts B. Does B have negligence claim?
1. No, because B was an unforeseeable victim. RR employee couldn't foresee harm to B and didn't owe duty to B.
How much care must we give to foreseeable victims to avoid liability?
As careful as a reasonably prudent person acting under similar circumstances
Is rule governing how much care we must give to foreseeable victims to avoid liabliity subjective or objective?
Objective.
Negligence?

1. p sues d for negligence. D kept kerosene soaked rags in garage and burned p and d's garages.
Yes negligence.

1. Foreseeable victim? Yes
2. Care of reasonably prudent person? No
What standard of care does negligence rule apply to insane, mentally disabled?
EVERYONE held to care of reasonably prudent person standard UNLESS

1. d has superior knowledge, then standard is reasonably prudent person with that superior knowledge

2. Factor in physical characteristics of D. E.g. if d is blind, negligence standard is reasonably prudent blind person.
Exceptions to reasonably prudent person standard for negligence
1. superior knowledge--if a d has superior knowledge relevant to case, a standard becomes a reasonably prudent person with that superior knowledge

2. Factor in physical characteristics of D. E.g. if d is blind, negligence standard is reasonably prudent blind person.
Special duty circumstances:
When does reasonably prudent person negligence standard change?
1. Children aged 4-18 (when NOT engaging in adult activities such as driving)

2. Professionals actors

3. Duty owed by occupiers of real estate to those who enter property and get hurt

4. Statutory duties of care

5. Affirmative duties of care
T or F: Children under the age of four cannot be liable for negligence
True
Standard of care for children aged 14-18
(negligence)
Standard of care for hypotethical child of similar age, experience and intelligence acting under similar circumstance

**subjective standard that is lenient
**difficult to win negligence cases against kids

(Except use regular reasonably prudent standard when child engages in adult activities--generally driving)
Negligence?

1. A rides trike over hand of B. Both A and B are age six and A riding trike for first time.

2. Doctor failed to give A mammogram at routine check-up and A diagnosed with serious breast cancer 6 mths later.
1. Not negligent under reasonably prudent standard for aged 4-18. A only has duty of care equal to 6 year old of equal experience and intelligence.

2. Ask whether doctor used same standard of care as average member of profession practicing in similar community. Basically ask empirically what other professionals do.
Standard of care for professionals
(negligence)
Held to standard of care as an average member of profession practicing in similar community.

**MA doesn't consider community of doctor.

**Majority rule compares to city or country doctors

(compares d to his real world colleagues, not a hypoethetical reasonably prudent person. This standard is empirical. Use expert witness.)
Negligence?

1. Undiscovered trespasser comes on land and gets hurt and sues landowner.

2. People use land as shortcut and get hurt and sue landowner.
1. No negligence. Real estate owner has no duty to those who enter property as undiscovered trespasser and gets hurt.

2. Negligence if did not use reasonably prudent person standard of care.

Entrants were anticipated trespassers
Duty owed by occupiers of real estate to those who enter property and get hurt
1) What was cause of entrant's injury? Two ways:

(a) activities carried out on property by occupier or occupiers agents or employees

(b) encountering a dangerous activity

2) What legal status does the entrant have on the land?

(a) undiscovered trespasser--
owed NO duty of care regardless whether cause of accident is activity or condition

(b) Discovered trespasser
and anticipated trespassers--
--(i) Hurt by activities: reasonably prudent person standard of care.
--(ii) hurt by condition on land:
Duty only arises when:
----1) condition was an artificial condition (built by humans)
----2) condition is be highly dangerous (capable of killing or maiming)
----3) Condition is concealed from trespasser
----4) Condition is one that occupier of land knew about before the accident

(c) Licensee, enters with permission,e.g. social guests
--(i) hurt by activity:
reasonably prudent person
--(ii) hurt by condition:
Duty arises when:
----(1) condition concealed
----(2) occupier had advance knowledge of condition

(d) Invitee, when land held open to public, eg mall--
--(i) activity: reasonably prudent person standard
--(ii) conditions:
Occupier owes duty of care when:
----(1) condition concealed
----(2) condition is one that occupier knew about in advance or could have discovered through reasonable inspection

































2.
When does occupier owe duty to discovered trespasser who is hurt from condition on property?
Duty only arises when:

1) condition was an artificial condition (built by humans)

2) condition is be highly dangerous (capable of killing or maiming)

3) Condition is concealed from trespasser

4) Condition is one that occupier of land knew about before the accident.

**duty to protect from man-made death traps
When does occupier owe duty to discovered trespasser who is hurt from activity on property?
Negligent if doesn't follow duty of care of reasonably prudent person.
When does occupier owe duty to licensee who is hurt from activity or condition on property?
Activity: reasonably prudent person standard

Condition: Duty arises when
(1) condition concealed
(2) occupier had advance knowledge of condition

**duty to protect from all traps on property
Negligence

1. friend slips on rug without rug pad. Owner knew rug was slippery.

2. Chair breaks in school and studnet gets hurt.
1. Yes because friend is licencee and land owner owes duty of care when dangerous condition concealed and occupier had advance knoweldge of condition.

2. Entrant is invitee and condition was concealed. Negligent if owner knew or reasonably should have known through reasonable inspection.
When does occupier of real estate owe duty to person who gets hurt on land from activity done there?
Always standard of care of reasonably prudent person, regardless of type of person on land and reason why.
When does occupier have duty of care to invitee who is hurt from activity or condition on property?
(1) activities:
reasonably prudent person

(2) conditions:
Occupier owes duty of care when:
----(1) condition concealed
----(2) condition is one that occupier knew about in advance or could have discovered through reasonable inspection

**owe duty to protect from all reasonably knowable traps on land
Duty of care in MA
of property occupiers to others on their land
1. lawful
- includes invitees and licensees
- standard of reasonably prudent person

2. unlawful
-includes all trespassers
-only protected if property owner is reckless

**doesn't distinguish between conditions and activities, as on multistate
Firefighters and police officers on the multi-state and in MA:

Can they recover for negligence of land occupier when they get hurt on land?
can't recover for injuries that are inherent risk of job

--form of assumption of the risk
--Not recognized in MA, can recover as any other person, under the reasonably prudent person standard.
how are individuals who enter land for recreational purposes
-with owner's permission and
-who don't pay fee

treated for purposes of legal duty analysis?
Treated as trespassers for purposes of legal duty analysis.
Duty of care of land occupier?

1. A allows B to use land for skiing without fee. B gets hurt and sues A.
1. B is treated as trespasser.
What duty of care is required for child trespassers?
Reasonably prudent person standard for protection for artificial conditions on the land.

--Ask how foreseeable it is for children to trespass on the land in the first place.
If a property occupier owes a duty regarding a condition on property, how can property occupier satisfy duty?
1. fix hazard

2. give warning
How does a statute requiring a standard of care affect a negligence case?
Can p use a statutory duty standard and have evidence of violation become negligence per se (no further discussion of reasonableness)?
Yes if two factors met:

1. p must show that member of class of persons that statute designed to protect

2. p must show that accident was in class of risks that statute trying to prevent
Does statutory standard of care apply?

1. D lights joint and apt blows up bc of gas leak. Statute exists fining and possibly jailing pot users.

2. d had duty to stop at red light because statute penalizes those that do not.
1. Statutory standard of care may not be applied. Apply class of persons, class of risk. Blowing up apts was not class of risk statute tried to protect. Trying to protect pot smokers, not neighbors. Thus, reasonably prudent test will be applied and d will probably be found negligent.


2. Yes, because act of running red lights expressly prhobited by statute and p is class of persons statute designed to protect.
In MA, is violation of a statutory duty of care per se negligence?
No, statutory duty of care is only a factor in reasonablness under the reasonably prudent person standard.
When class of person, class of risk test met, is statutory duty of care always used to show automatic negligence?
No, don't use statutory duty of care when:

1. compliance with statute is more dangerous than violation of statute,

2. when compliance impossible
Duties to act affirmatively
There are none.

--No duty to rescue a person in peril unless

1) d is cause of peril
2) pre-existing relationship between d and person in peril
-- family relationship
-- common carrier/innkeeper
-- land occupier duty to invitee

3) someone takes on duty to rescue

**then duty to rescue reasonably
What is the duty of care?

1. A passes young girl drowning in pond and does nothing.
1. no duty to rescue person in peril

2.
Is there a duty to rescue?
No, unless

1) d is cause of peril
2) pre-existing relationship between d and person in peril
-- family relationship
-- common carrier/innkeeper
-- land occupier duty to invitee

3) someone takes on duty to rescue

**then duty to rescue reasonably
Good samaritan laws
(MA has one but not generally applicable to all rescuers under all circumstances)
1. MA statute applies to individuals with some professional training in rescue, including doctors, nurses, emts, police officers, fire fighters.
Negligent infliction of emotional distress
Situations where p is upset based on d's negligence. D has already violated a duty of care. If trauma to body, then not nied.

To recover, p must show:

1) p was in zone of physical danger as result. Must have been a near miss or close call as to PLAINTIFF.
OR
bystander to injury of loved one

2) p must suffer subsequent physical manifestation flowing from the distress (minutes, hours, days after)
negligent infliction of emotional distress?

1. P crosses street on walk signal. D nearly hits P. P has heart attack (or miscarriage, or rash)

2. A sends severed wax head to colleague.
1. Yes near miss situation. Negligence by d and subsequent physical manifestation flowing from distress.

2. INTENTIONAL infliction of emotional distress
near miss v. bystander claim and why relevant
Relevant bc both are sufficient for claim for neglignet infliction of emotional distress

bystander claim: p suffers grief after witnessing injury to loved one
Bystander claim for
negligent infliction of emotional distress in MA
bystander claim: p suffers grief after witnessing injury to loved one

--must be subsequent physicla manifistations flowing from distress

* Don't have to be present at moment when injury happens. Ok if arrive on scene shortly after
Intentional infliction of emotional distress
v.
Negligent infliction of emotional distress
Intent or carelessness
Breach element in negligence claim
P must identify wrongful danger that D engaged in and explain why wrongful

1. identification of fact
2. argumetn why it violates appropriate duty standard

--easy element to analyze when specific duty such as statutory duty of care. Clear that d breached duty.
--Breach requires detailed analysis when duty is general.
Res ipsa loquitor
For the doctrine to apply and satisfy the breach requirement, the plaintiff must show

1. accident which occurs doesn't normally occur in the absence of negligence.
--can be shown by appeal to common knowledge or resort to expert testimony

2. this type of accident is normally due to the negligence of someone in d's position

--The thing speaks for itself." Breach doctrine used by plaintiffs who can't identify wrongful conduct e.g. bc lack info.

--When established, case goes to jury.
Negligence:

1. A walks down street and barrel falls on head
1. Yes, case goes to jury under res ipsa loquitor. Accideent that occurs normally via negligence. Barrel in d's control when drops is typically due to d's negligence.
Causation element of negligence analysis
1. Ask whether breach was the cause of the injury?

Apply but-for test: But for the breach, would plaintiff had escaped injury?

-D can try to argue: even if I had been careful, p still would have gotten hurt SO causation requirement not met.
Causation analysis when multiple defendants
1) multiple d's with mingled causation.
--Did each defendant contribute to ultimate injury in substantial or significant way?
---If yes for both, then hold d's jointly liable.

2) multiple defendants and unascertainable cause
--Shift burden of proof. Ds are jointly and severally liable if they CANNOT establish by a preponderance of the evidence that they were NOT the cause of the injury. (D's must negate causation)
-- When impossible to ascertain cause of accident by required preponderance of the evidence.
Negligence?

1. A and B are strangers camping. A and B separately leave campfires going. Forest fires start and mingle.

2) A and B shot guns at same time. 50/50 chance that A and B each shot C.
1. Yes, will be held jointly liable. Case of multiple d's with mingled causation. Even though neither d was the but-for cause, can still be held liable if they each were "substantial factor" in ultimate injury.

2) Burden of proof shifts bc multiple defendants and unascertainable cause. D's jointly and severally liable if they CANNOT establish by preponderance of evidence that not the cause of C's injury.

C can't establish by a preponderance of evidence that either A or B shot him. True cause is unascertainable.
Legal/Proximate Cause
Exists when injury was foreseeable

--Device to make sure that recovery is fair. Only fair for ds to pay for foreseeable consequences of breaches.
Negligence?

1. P suffers harm almost instantaneously after d commits breach (eg legs broken in car crash)

2. D hits P's car, loaded with dynamite lawfully. 30 people die.
1. Yes, injury was foreseeable and proximate/legal cause exists.

2. Likely deny relief because no proximate cause.
Defendant always held liable in these indirect cause cases

(these injuries are always foreseeable)
1. intervening medical negligence

2. intervening negligent rescue

3. intervening protection or reaction forces

4. Subsequent disease or accident
Negligent?

1. D runs red light, hits P, and P breaks leg. Leg amputated later due to doctor's incompetent care. Liability of d?

2. D hits A with car. C tries to help and drags A out of road and dislocates shoulder. Is D liable for dislcoated shoulder?

3. D hits pedestrian. Other peds panic, stampede, and P is stepped on and nose broken. Is D liable for nose breaking?

4. D hits P and breaks leg. P falls next day and breaks arm bc hard to use crutches. Is D liable for broken arm?

5. P eats rotten shrimp cocktail and gets ill and breaks arm at home sick in bathroom. Is restaurant liable for broken arm?
1. D liable for amputated leg bc foreseeable that doctors sometimes make mistakes. This is intervening medical negligence(Doctor also liable)

2. Yes, proximate cause is satisfied under the intervening negligent rescue theory.

3. Yes under intervening protection or reaction forces theory, which eliminates need for proximate cause.

4. Yes, under subsequent disease or accident theory, which eliminates need for proximate cause.

5. No liability bc no proximate cause.
Breach is serving rotten shrimp. Broken arm not foreseeable injury from rotten shrimp.
Indirect cause analysis (when not within four automatic negligence situations)
Ask whether foreseeable (proximate cause)
Eggshell skull doctrine
When d has committed all elements of negligence, he pays for all harm suffered by p.

**you take your plaintiff as you find your plaintiff.

**Every tort subject to this doctrine, e.g. battery, etc.
Negligence liability?

1. you knock over old person at party and they break 10 bones.
1. must pay damages for all broken bones. Take plaintiff as find plaintiff.
Procedural requisites for obtaining equitable relief (injunction)
1. have to establish liability on merits--that someone committed torts

P must show:


2. no adequate remedy at law (money remedy)

3. tort involves implicates a protectable interest (always satisfied bc is a tort!)

4. injunction would be enforceable
--prohibitory injunction always enforceable

5. Benefit to plaintiff will be greater than harm to defendant.
In what situations is there no adequate remedy at law?

Why relevant?
1. relevant bc can only get equitable relief when no adequate remedy at law.

2. remedy at law = money remedy

3. Situations:
- when d has no money
- where harm is impossible to measure
- when conduct is ongoing
When might an injunction not be enforceable and why relevant?
1. relevant because only enforceable injunctions will be ordered

2. Less likely enforceable when:
-when injunction out of state
-when injunction affirmatively demands that d do act, especially if act is complex
Can one get a remedy at law and equitable remedy?
Yes--possible to get money damages and injunction.
Defenses to issuance of injunction.
1. unclean hands:
argument that plaintiff has engaged in misconduct

2. laches
prejudicial delay

3. First Amendment
When want injunction against publication.
P seeks injunction from smoke at factory next door. Factory has twice expanded in the 10 years that P had lived there. Can P get an injunction?
Probably not. D will defend with laches, prejudicial delay.

This doesn't prevent P from getting money damages.
Affirmative defenses to negligence
1. Comparative fault

- d can offer evidence that p failed to use care for his own safety
--e.g. to be reasonably prudent or conform to statute

--jury instructed to compare negligence of p and d and determine each's degree of fault. P's recovery will be reduced by his own degree of fault.
Partial comparative fault
affirmative defense to negligence
- P's fault of less than 50% reduces recovery

-P's fault of more than 50% bars recovery
Injuries caused by animals:
3 types
1. injury caused by domesticated animal (dog)
- strictly liable if knows has vicious propensities
- always strictly liable in MA

3. wild animals
--strict liability for owner

2. trespassing cattle
- strict liability
Is one liable for injury caused by domesticated animal in MA and on MS?
Strictly liable IF
-know that it has vicious propensities

-MA: owner strictly liable for ANY injuries caused by animal UNLESS victim is trespasser or teasing or tormenting the dog.
Liability?

1. dog bit A. Dog bit B. B sues owner.

2. Tiger owner takes every precaution, but tiger escapes and bites neighbor.
1. Strictly liable because owner knew that domesticated animal had vicious propensities.

2. strictly liable for wild animals.
Is one liable for injury or damage caused by trespassing cattle?
Yes, strict liability for owner.
Is one liable for injury caused by his wild animal?
Yes, always strict liability for owner.
Strict liability defined
- safety precautions irrelevant

- liable no matter what
Ultra-hazardous activities

Why relevant?
Category of strict liability

e.g.
--anything involving blasting/explosives
--using chemical or biological substances
--anything involving radiation or nuclear energy
Categories of strict liabilities
1. animals
2. ultra-hazardous activities
3. harm caused by consumer product
Elements of ultra-hazardous activities
1. can't be made safe
2. pose severe risk of harm
3. uncommon where d is conducting them.
Harm caused by consumer products

why relevant?
1. relevant because category of strict liability

2. look at call of question carefully--only use strict liability when question says p is suing in strict liability
Elements of strict liability claims in product liability cases
1. showing that d is merchant (someone who routinely deals in goods of this type)

2. showing that product defective.
- manufacturing defect
- design defect

3. defect in question existed when product left defendant's hands

4. P must show that he was a foreseeable user making a foreseeable use of the product.
Liability?

1. A sells bike on ebay and it hurts B. B sues A.

2. A owns restaurant. B sues A when his chair in restaurant breaks and hurts him. B sues A.

3. B rents car and brakes fail. Is rental co liable?
1. no strict liability for products liability bc A not merchant. A is casual seller

2. Not strictly liable. A is service provider and not a merchant.

3. Yes, strict liability. Rental co. is a commercial lessor--a merchant.
Every merchant in distribution chain is liable. There is no requiremetn of privity of contract.

What kind of liability?
strict liability
manufacturing defect and why relevant
product that hurt plaintiff differs from all other products that came off assembly line in way that makes it more dangerous than consumers would expect.

- 1 in a million product

- relevant to show that product is defective in determining whether strict liability should be applied.
design defect defined and why relevant
1. has design defect when we can imagine another way that product could have been built

*Design defect when there is an alternative design that is:
1. safer than marketed version of property
2. cost-effective. Not significantly more expensive than marketed product
3. practical, meaning doesn't subvert product's central purpose.

2. relevant bc merchang of product with design defect that hrms someone is held strictly liable
If a product has a residual risk which cannot be physically designed away and is not apparent to consumer, will merchant be held strictly liable.
This is a design defect because can come up with alternative design with warning
How does p show that defect in question existed when product left d's hands?

And why relevant?
1. presumed if product traveled in ordinary channels of distribution. D has to negate this presumption.

2. relevant bc required to get strict liability in product liability cases.
How does product misuse affect recovery in product liability case?
Misuse of product does not automatically prevent recovery for product liability.

Consider whether its foreseeable that people would use the product in that way. (e.g. stand on chair rather than sit)
Defense to strict liability
Comparative fault (just as in comparative negligence)
Tort of nuisance
An interference with ability to enjoy property to an unreasonable degree

--courts balance the interests between p and d

--can be intentional, negligent, or strict liability nuisance litigation
Vicarious liability
When P sues second party not involved in injury-causing conduct

1) employer-employee
--employer is vicariously liable when employee acting in scope of employee
--exception: Most intentional torts are outside scope of employment and no vicarious liability (when random acts of violence). Except when employer authorized employee to use force or employee acting in overzealous fashion to serve interest of employer.

2) Hiring party and independent contract
--no vicarious liability
--exception: land occupier is vicariously liable if independent contractor hurts invitees

3) car owner-car driver
--owner not vicariously liable for driver's torts
--exception: if lend car for purpose of owner, then driver is agent, and owner will be vicariously liable.

4) parent-child
--no vicarious liability
Immunities: Two categories in MA
1) In MA, charitable immunity. When charitable enterprises engaged in core charitable activities, liability is capped at 20,000. Does not apply to revenue generating activities of charity.

2) (MTCA: mass torts claims act) MA has statute waiving governmental immunity so can sue state, towns, and counties. Waiver contains procedural and substatnive limits on liability. Damages limited to 100,000 and can't recover for intentional torts. Must also give advance notice of intention to bring claim.
Loss of consortium
If victim of tort is married, uninjured spouse is also get consortium claim.

Purpose to allow recovery for:

1. loss of services (laundry, cooking, etc)

2. loss of society
(companionship)

3. loss of sex