Torts

Front 1

Prima Facie Case

Back 1

To establish prima facie case of intentional tort, plaintiff must prove:
(1) Act by defendant (must be a volitional movement by defendant);
(2) Intention - may be either specific (goal in acting was to bring about specific consequence) or general (actor knows with substantial certainty that these consequences will result); and
(3) Causation - result must have been legally caused by defendant's act or something set in motion by him. Satisfied if defendant's conduct was a substantial factor in bringing about the injury.

Front 2

Transferred Intent

Back 2

Applies when defendant intents to commit a tort against one person but instead (1) commits a different tort against that person, (2) commits the intended tort against a different person, or (3) commits a different tort against a different person. In such cases, intent is transferred.

Transferred intent may be invoked only if both the tort intended and tort that results are one of the following: battery, assault, false imprisonment, trespass to land, or trespass to chattels.

Front 3

Intentional Torts to the Person

Back 3

(1) Battery
(2) Assault
(3) False Imprisonment
(4) Intentional Infliction of Emotional Distress

Front 4

Battery

Back 4

Elements:
(1) Harmful or offensive contact (judged by reasonable person standard, and can be direct or indirect);
(2) To Defendant's Person (includes anything connected to plaintiff, like clothing or a purse);
(3) Intent; and
(4) Causation.

Front 5

Assault

Back 5

Elements:
(1) Act by Defendant Creating Reasonable Apprehension in Plaintiff;
(2) Of Immediate Harmful or Offensive Contact to Plaintiff's Person;
(3) Intent; and
(4) Causation.

Apprehension doesn't mean fear or intimidation. Words MUST be coupled with actions. Words alone are not enough, but words can negate reasonable apprehension. Plaintiff must be apprehensive that she is about to become the victim of an immediate battery.

Front 6

False Imprisonment

Back 6

Elements:
(1) Act or Omission on the Part of Defendant That Confines or Restrains Plaintiff;
(2) To a Bounded Area;
(3) Intent; and
(4) Causation.

Sufficient methods of confinement/restraint:
(1) Physical Barriers;
(2) Physical Force;
(3) Threats of Force;
(4) Failure to Release; and
(5) Invalid Use of Legal Authority.

Insufficient methods of confinement/restraint:
(1) Moral Pressure; and
(2) Future Threats.

Time of confinement (duration) irrelevant - even if VERY short. Plaintiff must know of confinement or be harmed by it. For an area to be "bounded," freedom of movement must be limited in all directions. There must be no reasonable means of escape known to plaintiff.

Front 7

Intentional Infliction of Emotional Distress

Back 7

Elements:
(1) Act by Defendant to Extreme and Outrageous Conduct;
(2) Intent or Recklessness;
(3) Causation; and
(4) Damages (SEVERE Emotional Distress).

Extreme and outrageous behavior is conduct that transcends all bounds of decency. Conduct that is not normally outrageous may become so if (1) continuous in nature, (2) directed toward a certain type of plaintiff (kids, elderly, pregnant women, adults with known sensitivities), or (3) committed by certain type of defendant (common carriers or innkeepers may be liable for even mere "gross insults").

The more outrageous the conduct, the less proof of damages is required. Proof of physical injury not required.

When defendant causes intentional physical harm to third person, and plaintiff suffers severe emotional distress because of it, plaintiff may recover by showing either prima facie elements above or that (1) she was present when injury occurred, (2) she is a close relative of the injured person, and (3) defendant knew both.

IIED is a "fallback" tort. Always choose others over this one.

Front 8

Trespass to Land

Back 8

Elements:
(1) Physical Invasion of Plaintiff's Real Property;
(2) Intent; and
(3) Causation.

Physical Invasion - may be by a person or an object. If intangible, plaintiff may have nuisance action.

Real Property - Not just surface, but also airspace and subterranean space for a reasonable distance.

Intent - Defendant need only intend to enter on that particular piece of land (need not know it belongs to another).

Anyone in actual or constructive possession of the land may maintain this action.

Front 9

Trespass to Chattels

Back 9

Elements:
(1) Act by Defendant that Interferes with Plaintiff's Right of Possession in a Chattel;
(2) Intent;
(3) Causation; and
(4) Damages.

Intermeddling interference: directly damages the chattel.

Dispossession interference: deprives plaintiff of this lawful right of possession of the chattel.

Actual damages, not necessarily to the chattel, but at least to a possessory right, are required.

Front 10

Conversion

Back 10

Elements:
(1) Act by Defendant that Interferes with Plaintiff's Right of Possession in a Chattel;
(2) Interference is so Serious that it Warrants Requiring Defendant to Pay Chattel's Full Value;
(3) Intent; and
(4) Causation.

Acts of conversion include: theft (wrongful acquisition), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel.

The longer the withholding period and more extensive the use, the more likely it's conversion. Less serious is trespass to chattels.

Only tangible and intangible property (if reduced to physical form) subject. Anyone with possession or immediate right to possession may maintain action. Plaintiff may recover damages (FMV at time of conversion) or possession (replevin).

Front 11

Defenses to Intentional Torts

Back 11

(1) Consent
(2) Self Defense, Defense of Others, Defense of Property
(3) Privilege of Arrest
(4) Necessity
(5) Discipline

Front 12

General Consent - Defenses to Intentional Torts

Back 12

Plaintiff's consent to defendant's conduct is a defense, but majority view is that one cannot consent to a criminal act. Any consent fact pattern raises two inquiries:
(1) Was there valid consent (no fraud)?
(2) Did the defendant stay within boundaries of the consent (e.g., not use a gun in a boxing match)?

Individuals without capacity are deemed incapable of consent.

Front 13

Express (Actual) Consent - Defenses to Intentional Torts

Back 13

Defendant is not liable if plaintiff expressly consents to defendant's conduct. Exceptions:
(1) Mistake will undo express consent if defendant knew of and took advantage of the mistake;
(2) Consent induced by fraud will be invalidated if it goes to an essential matter only (not just a collateral matter); and
(3) Consent obtained by duress will be invalidated unless duress is only threats of future action or future economic deprivation.

Front 14

Implied Consent - Defenses to Intentional Torts

Back 14

Apparent consent is that which a reasonable person would infer from custom and usage or plaintiff's conduct (e.g., normal contacts inherent in body-contact sports, ordinary incidental contact, etc).

Consent implied by law arises when action is necessary to save a person's life or some other important interest in person or property.

Front 15

Self Defense, Defense of Others, Defense of Property - Defenses to Intentional Torts

Back 15

When question involves any of those, ask the following three questions:
(1) Is privilege available? Tort must now be or about to be committed - already committed torts don't apply.
(2) Is a mistake permissible as to whether tort being defended against is actually being committed?
(3) Was a proper amount of force used?

Front 16

Self Defense

Back 16

When a person reasonably believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury.

Availability of Defense: Modern trend imposes duty to retreat before using deadly force if it can be done safely, unless in own home. Self-defense generally not available to the original aggressor. May extend to third-party injuries caused while trying to defend herself, but may be liable if she deliberately injured third party in trying to defend herself.

Is Mistake Allowed?: Reasonable mistake as to existence of danger is allowed.

How much force may be used?: Force that reasonably appears to be necessary to prevent the harm (including deadly force). If more force than necessary is used, defense is lost.

Front 17

Defense of Others

Back 17

When is defense available?: One may use force to defend another when actor reasonably believes that the other person could have used force to defend himself.

Is mistake allowed?: Reasonable mistake as to whether the other person is being attacked or has a right to defend himself is permitted.

How much force may be used?: The defender may use as much force as he could have used in self-defense if the injury were threatened to him.

Front 18

Defense of Property

Back 18

When is defense available?: One may use reasonable force to prevent commission of a tort against her real or personal property. Request to desist or leave must first be made unless clearly dangerous or futile. Defense does not apply once the tort has been committed, however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of her chattels because tort is viewed as still being committed.

Is mistake allowed?: Reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. Mistake not allowed as to whether entrant has privilege, unless entrant conducts entry so as to lead defendant to reasonably believe it isn't privileged (such as refusing to say what necessity is).

How much force may be used?: Reasonable force, but one may NOT use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm.

Front 19

Reentry onto Land

Back 19

At common law, one could use force to reenter land only when the other came into possession tortiously. Under modern law, there are summary procedures for recovering possession of real property. Hence, resort to "self-help" is no longer allowed.

Front 20

Recapture of Chattels

Back 20

When is defense available? Timely demand to return the chattel is first required unless futile or dangerous. One may not use force to recapture chattels in hands of an innocent party. When chattels are on wrongdoer's land, owner is privileged to enter on land and reclaim them at a reasonable time and in a reasonable manner, after first making a demand for their return. When chattels on land of innocent party, owner may enter and reclaim at reasonable time and in a peaceful manner when landowner has been given notice of the presence of the chattel and refuses to return it. However, chattel owner will be liable for any actual damage caused by the entry. If chattels on the land of someone else through owner's fault (e.g., negligently letting cattle wander), no privilege to enter land. May be recovered only through legal process.

Is mistake allowed?: Generally, no. However, shopkeepers may have privilege to detain for a reasonable time those they reasonably believe to be in possession of shoplifted goods.

How much force may be used?: Reasonable force (not including force sufficient to cause death or bodily harm) may be used to recapture chattels.

Front 21

Privilege of Arrest

Back 21

Depending on the facts, the actor may have a privilege to make an arrest of a third person.

Invasion of Land: Privilege of arrest carries with it the privilege to enter another's land for purpose of affecting the arrest.

Subsequent Misconduct: Although the arrest itself may be privileged, actor may still be liable for subsequent misconduct.

Mistake: If arrest is for a misdemeanor, privileged only for breach of peace and if action takes place in front of defendant. If arrest is for a felony, officer may make a reasonable mistake. Citizens may make a reasonable mistake regarding identity of felon, but not regarding whether felony occurred.

Front 22

Necessity

Back 22

A person may interfere with real or personal property of another when reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than invasion undertaken to avert it.

Two types of necessity: (1) public (when act is for public good) and (2) private (when act is solely to benefit any person or any property from destruction or serious injury.

Under private necessity, actor must pay for any injury he causes.

Necessity is only a defense to property torts.

Front 23

Discipline

Back 23

A parent or teacher may use reasonable force in disciplining children.

Front 24

Defamation

Back 24

Common Law Elements:
(1) Defamatory Language;
(2) "Of or Concerning" Plaintiff;
(3) Publication Thereof by Defendant to Third Party; and
(4) Damage to Plaintiff's Reputation.

If defamation involves a matter of public concern, constitution requires plaintiff to prove two additional elements:
(5) Falsity of Defamatory Language; and
(6) Fault on the Part of the Defendant.

In common law case, plaintiff doesn't have to prove falsity. Rather, defendant may offer truth of statement as a defense.

Front 25

Defamatory Statements

Back 25

Language tending to adversely affect one's reputation. Statement of opinion is only actionable if it appears to be based on specific facts, and an express allegation of those facts would be defamatory. Name-calling is insufficient.

If statement not defamatory on its face, plaintiff may plead additional facts as "inducement" to establish defamatory meaning by "innuendo."

Any living person may be defamed. Defamation of a deceased person not actionable. In a limited sense, a corporation, unincorporated association, or partnership may be defamed.

Front 26

"Of or Concerning" Plaintiff (Defamation)

Back 26

Plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to plaintiff.

If statement doesn't refer to plaintiff on its face, extrinsic evidence may be offered to establish that statement refers to plaintiff. This is known as pleading "colloquium."

If defamatory statement refers to all members of a small group, each member may establish that the statement is "of and concerning" him by alleging that he is a group member (i.e., Everyone wins!).

If it is a large group, no member can prove statement is "of and concerning" him (i.e., No one wins!).

If statement only refers to some members of a small group, plaintiff can recover if a reasonable person would view statement as referring to him.

Front 27

Publication (Defamation)

Back 27

Communication of defamation to someone other than plaintiff. Can be made either intentionally or negligently. It is the intent to publish, not the intent to defame, that is the required intent. Each repetition is a separate publication. However, for magazines, newspapers, etc, most states have adopted a "single publication" rule under which all copies are treated as one publication.

Primary publishers liable to same extent as author/speaker. One who repeats defamation is liable, too (even if she states she doesn't believe it). One selling papers or playing tapes is a secondary publisher, and is liable only if he knows or should know of defamatory content.

Front 28

Damages to Plaintiff's Reputation (Defamation)

Back 28

Libel: Written or printed publication of defamatory language. Plaintiff doesn't need to prove special damages and general damages are presumed. Minority position distinguishes between libel per se and libel per quod (not defamatory on its face).

Slander: Spoken defamation. Plaintiff must prove special damages unless slander per se, which involves defamatory statements that:
(1) Adversely reflect on one's conduct in a business or profession;
(2) One has a loathsome disease;
(3) One is or was guilty of a crime involving moral turpitude; or
(4) A woman is unchaste.

Where original defamation is libel, any repetition (oral or not) is libel also. But written repetition of slander is libel. Radio and TV programs treated as libels if sufficiently permanent, premeditated, and broadly enough disseminated. The modern trend is that even "ad libbed" TV/radio is libel.

Front 29

Falsity (Defamation)

Back 29

In cases where plaintiff is constitutionally required to prove some type of fault, plaintiff also has burden of proving falsity.

If statement of public interest is true, plaintiff has no recourse. However, might have cause of action for IIED or invasion of right to privacy (unless plaintiff is a public figure).

Front 30

Fault on Defendant's Part (Defamation)

Back 30

Public Official/Figure: Malice must be proved.

Public Figure = someone who has achieved pervasive fame or voluntarily assumed a central role in a particular public controversy.

Malice:
(1) Knowledge of statement's falsity; or
(2) Reckless disregard as to falsity.

Malice is a subjective test - ill will is not enough. Deliberately changing a quote may be if it materially changes the statement's meaning.

Private Persons: Only negligence as to falsity need be proved if statement is a matter of "public concern."

These rules deal ONLY with degree of defendant's fault. Falsity has to be proven regardless.

Front 31

Defenses to Defamation

Back 31

(1) Consent: Same rules for consent as defenses to an intentional tort.
(2) Truth: Where plaintiff doesn't need to prove falsity, defendant may prove truth as a complete defense.
(3) Absolute Privilege: Defendant may be protected by an absolute privilege for the following - remarks made during a judicial proceeding, by legislators in a debate, by federal executive officials, in "compelled" broadcasts, and between spouses. This privilege can never be lost.
(4) Qualified Privilege: Can be lost through Abuse. Speaker may have qualified privilege for the following: reports of official proceedings; statements in interest of publisher - defense of one's actions, property, or reputation; statements in interest of recipient; statements in common interest of publisher and recipient. Qualified privilege may be lost if:
(a) statement not within scope of privilege; or
(b) it is shown that the speaker acted with malice.
Defendant bears burden of proving such privilege exists.

Front 32

Mitigating Factors (Defamation)

Back 32

Mitigating factors (e.g., no malice, retraction, anger of the speaker, provoked by plaintiff) may be considered by the jury on the damages issue. They are not defenses to liability.

Front 33

Invasion of Right to Privacy

Back 33

Four kinds of wrongs:
(1) Appropriation of Plaintiff's Picture or Name;
(2) Intrusion Upon Plaintiff's Affairs or Seclusion;
(3) Publication of Facts Placing Plaintiff in False Light; and
(4) Public Disclosure of Private Facts About Plaintiff.

Causation: Invasion of plaintiff's interest in privacy must have been proximately caused by defendant's conduct.

Proof of special damages is unnecessary - emotional distress and mental anguish are sufficient damages.

Defenses: Consent and defamation privilege defenses. Truth, inadvertence, good faith, and lack of malice are NOT good defenses.

This is a personal right and doesn't extend to members of a family, doesn't survive plaintiff's death, and is not assignable. Also not applicable to corporations.

Front 34

Appropriation of Plaintiff's Picture/Name - Invasion of Right to Privacy

Back 34

Must show unauthorized use for defendant's commercial advantage. Liability generally limited to advertisements and promotions of products/services. Mere economic gain to defendant by itself not sufficient.

Front 35

Intrusion Upon Plaintiff's Affairs or Seclusion - Invasion of Right to Privacy

Back 35

Act of prying or intruding must be objectionable to a reasonable person. The thing into which there is an intrusion must be "private."

Front 36

Publication of Facts Placing Plaintiff in False Light - Invasion of Right to Privacy

Back 36

"False light" exists where one attributes to plaintiff views he does not hold or actions he did not take. The false light must be something objectionable to a reasonable person under the circumstances. For liability to attach, there must be publicity. If matter of public concern, 1st Amendment requires that malice on defendant's part be proved.

Front 37

Public Disclosure of Private Facts About Plaintiff - Invasion of Right to Privacy

Back 37

Public disclosure must be objectionable to a reasonable person of ordinary sensibilities. Liability may attach even though statement is true. 1st Amendment limitations probably apply if matter is of legitimate public interest.

Front 38

Intentional Misrepresentation (Fraud/Deceit)

Back 38

Elements:
(1) Misrepresentation of Material Fact (no duty to disclose and opinion not actionable unless rendered by someone with superior skill in the area - silence not enough);
(2) Scienter (i.e., when defendant made statement, he knew or believed it was false or there was no basis for statement);
(3) Intent to induce plaintiff to act or refrain from acting in reliance upon the misrepresentation;
(4) Causation (actual reliance);
(5) Justifiable Reliance; and
(6) Damages (Plaintiff must suffer actual pecuniary loss).

No defenses to intentional misrepresentation.

Front 39

Negligent Misrepresentation

Back 39

Elements:
(1) Misrepresentation by Defendant in a Business or Professional Capacity;
(2) Breach of Duty Toward Particular Plaintiff;
(3) Causation;
(4) Justifiable Reliance; and
(5) Damages.

Generally, this action is confined to misrepresentations made in a commercial setting, and liability will attach only if reliance by particular defendant could be contemplated.

Front 40

Malicious Prosecution

Back 40

Elements:
(1) Institution of Criminal Proceedings Against Plaintiff;
(2) Termination in Plaintiff's Favor;
(3) Absence of Probable Cause for Prior Proceedings;
(4) Improper Purpose; and
(5) Damages.

Prosecutors are immune from liability. Most jurisdictions have expanded to include civil cases.

Front 41

Abuse of Process

Back 41

Elements:
(1) Wrongful use of process for an ulterior purpose; and
(2) Definite act or threat against plaintiff in order to accomplish an ulterior purpose.

Front 42

Interference with Business Relations

Back 42

Elements:
(1) Existence of a valid contract relationship between plaintiff and third party or valid business expectancy of plaintiff;
(2) Defendant's knowledge of the relationship or expectancy;
(3) Intentional interference by defendant inducing a breach or termination of the relationship/expectancy; and
(4) Damages.

Defendant's conduct may be privileged where it is a proper attempt to obtain business for itself or protect its interests, particularly if defendant is interfering only with plaintiff's prospective business rather than with existing contracts.

Front 43

Negligence

Back 43

Elements:
(1) Duty on part of defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury;
(2) Breach of that duty by defendant;
(3) Breach is the actual/proximate cause of plaintiff's injury; and
(4) Damage.

Front 44

Duty of Care - Negligence

Back 44

A duty of care is owed to all foreseeable plaintiffs. The extent of the duty is determined by the applicable standard of care. Therefore, when confronted with a negligence question, always ask:
(1) Was the plaintiff foreseeable?
(2) If so, what is the applicable standard of care?

Front 45

Foreseeable/Unforeseeable Plaintiffs - Negligence

Back 45

A duty of care is owed to all foreseeable plaintiffs. Problem arises when defendant breaches duty to plaintiff #1 and also causes injury to plaintiff #2. Two possible outcomes:
(1) Cardozo View (Majority) - Foreseeable Zone of Dangers: #2 can only recover if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances (i.e., she was located in the foreseeable zone of danger).
(2) Andrews View (Minority) - Everyone is Foreseeable: #2 may establish the existence of a duty existing from defendant to her showing that defendant has breached a duty owed to #1.

Front 46

Specific Situations Regarding Duty of Care - Negligence

Back 46

Rescuers: Rescuer is a foreseeable plaintiff where defendant negligently put himself or a third person in peril.

Prenatal Injuries: A duty of care is owed to a viable fetus. In cases of failure to diagnose a congenital defect or properly perform a contraceptive procedure, child may not recover for "wrongful life," but parents may recover damages in a "wrongful birth" or "wrongful pregnancy." Action for any additional expenses and for pain and suffering from labor; ordinary child-rearing expenses, however, cannot be recovered.

Intended Beneficiaries of Economic Transfers: Third party for whose economic benefit legal or business transaction was made may be a foreseeable plaintiff.

Front 47

Basic Standard of Care - Negligence

Back 47

Reasonable Person Standard: An objective standard. A defendant's mental deficiencies and inexperience are not taken into account (i.e., stupidity is no excuse). However, the reasonable person is considered to have the same physical characteristics as defendant (but remember, one is expected to know one's physical handicaps and to exercise the care of a person with such knowledge - e.g., a blind person should not fly a plane).

Front 48

Professionals and Standard of Conduct - Negligence

Back 48

A professional or someone with special occupational skills is required to possess the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Specialists will be held to an even higher standard of care.

Doctor has a duty to disclose risks of treatment to enable a patient to make an informed consent.

Front 49

Children and Standard of Care - Negligence

Back 49

Children are held to the standard of a child of like age, education, intelligence, and experience. This is a subjective test. A child under four is usually without the capacity to be negligent. Children engaged in adult activities may be required to conform to an "adult" standard of care.

Front 50

Common Carriers and Innkeepers (Standard of Care) - Negligence

Back 50

Held to a very high degree of care (i.e., they are liable for slight negligence).

Plaintiff must be a passenger or guest for this to apply.

Front 51

Car Drive to Guest (Standard of Care) - Negligence

Back 51

A guest in a car is owed a duty of ordinary care. In the few guest statute states, one is liable to non-paying passengers only for reckless tortious conduct.

Front 52

Bailment Duties (Standard of Care) - Negligence

Back 52

Duties Owed by Bailor: For a gratuitous bailment, bailor must inform of known, dangerous defects in the chattel. For a bailment for hire, bailor must inform of chattel defects of which he is, or should be, aware.

Duties Owed by Bailee: Bailee's standard of care depends on who benefits from bailment: (1) for sole benefit of bailor, low standard of care; (2) for sole benefit of bailee, high standard of care; and (3) for mutual benefit, ordinary standard of care.

Bailment: Similar to storage. Example - giving your car to a valet, leaving clothes to be dry cleaned, etc.

Front 53

Emergency Situations (Standard of Care) - Negligence

Back 53

Defendant must act as a reasonable person would under the same emergency conditions. The emergency is not to be considered, however, if it is of defendant's own making.

Front 54

Duty of Possessor to Those Off Premises - Negligence

Back 54

There is no duty to protect one off the premises from natural conditions on the premises; however, there is a duty for unreasonable dangerous artificial conditions or structures abutting adjacent land. Also, one must carry on activities on property so as to avoid unreasonable risk of harm to others outside the property. In urban areas, owner/occupier is liable for damage caused off the premises by trees on premises (i.e., falling branches).

Front 55

Duty of Possessor to Trespassers

Back 55

No duty owed to undiscovered trespasser. As to anticipated or discovered trespassers, landowner must:
(1) warn of or make safe concealed, unsafe, artificial conditions known to landowner involving risk of serious bodily harm; and
(2) use reasonable care in the exercise of "active operations" on the property. No duty owed for natural conditions or less dangerous artificial conditions. Easement and license owners owe a duty of reasonable care to trespassers.

Front 56

Attractive Nuisance Doctrine

Back 56

Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonable foreseeable risk of harm to kids caused by artificial conditions on his property. To establish doctrine's applicability, plaintiff must show:
(1) Dangerous condition on land that owner is/should be aware of;
(2) Owner knows/should know kids frequent the vicinity of the condition;
(3) Condition is likely to cause injury (i.e., dangerous because of kid's inability to appreciate the risk); and
(4) The expense of remedying the situation is slight compared to magnitude of risk.

Child does NOT have to be attracted onto the land by the dangerous condition, nor is the attraction alone enough for liability.

Front 57

Duty of Possessor to Licensees

Back 57

A licensee is one who enters on land with possessor's permission for her own purpose or business, rather than for the possessor's benefit. Possessor has duty to:
(1) Warn of dangerous conditions (natural or artificial) known to owner that create an unreasonable risk of harm to licensee and licensee is unlikely to discover, and
(2) Exercise reasonable care in the conduct of "active operations" on the property.

Possessor has no duty to inspect or repair. Remember: Social guests = licensees.

Front 58

Duty of Possessor to Invitees

Back 58

Invitees enter land in response to an invitation by landowner (i.e., they enter for a purpose connected with the business of the landowner or enter as members of the public for a purpose for which the land is held open to the public). The landowner or occupier owes the same duties owed to licensees plus a duty to make reasonable inspections to discover nonobvious dangerous conditions and, thereafter, make them safe. One will lose invitee status if she exceeds the scope of the invitation.

Front 59

Duty Possessor Owes to Users of Recreational Land

Back 59

A landowner who permits the general public to use his land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.

Front 60

Duty - Modern Trend

Back 60

A strong minority of states reject the distinction between licensees and invitees (and, in a few, trespassers as well), and simply apply a reasonable person standard to dangerous conditions on the land.

Front 61

Duties of Lessor and Lessee of Realty

Back 61

Lessee has a general duty to maintain the premises. Lessor must warn of existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on reasonable inspection. If the lessor covenants to repair, he is liable for unreasonably dangerous conditions. If lessor volunteers to repair and does so negligently, he is liable.

Front 62

Duties of Vendor of Realty

Back 62

A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which he knows the vendee is not likely to discover on a reasonable inspection.

Front 63

Statutory Standards of Care

Back 63

A statute's specific duty may replace the more general common law duty of due care if:
(1) statute provides for a criminal penalty;
(2) statute clearly defines the standard of care;
(3) plaintiff is within protected class; and
(4) statute was designed to prevent type of harm suffered by plaintiff.

Violation of some statutes may be excused where compliance would cause more danger than violation of where compliance would be beyond defendant's control.

Under majority view, an unexcused statutory violation is negligence per se; i.e., establishes first 2 requirements - conclusive presumption of duty and breach of duty. In contrast, even though violation of the applicable statute may be negligence, compliance with statute will not necessarily establish due care.

Front 64

Duty Regarding Negligent Infliction of Emotional Distress

Back 64

Duty to avoid causing emotional distress to another is breached when defendant creates a foreseeable risk of physical injury to plaintiff, either by
(1) causing a threat of physical impact that leads to emotional distress; or
(2) directly causing severe emotional distress that by itself is likely to result in physical symptoms.

Plaintiff can recover damages only if defendant's conduct caused some physical injury. While pure emotional distress may be insufficient, a severe shock to nervous system that causes physical symptoms is sufficient. Two cases where physical injury not required:
(1) erroneous report of relative's death, and
(2) mishandling of relative's corpse.

Most courts require that threat be directed at plaintiff or someone in her immediate presence (within "Zone of Danger"). A strong modern trend allows recovery based on foreseeability factors rather than zone of danger if:
(1) plaintiff and person injured by defendant are closely related;
(2) plaintiff was present at the scene; and
(3) plaintiff observed or perceived the injury.

Front 65

Affirmative Duties to Act

Back 65

Generally, one doesn't have a legal duty to act. Exceptions:
(1) One may assume duty to act by acting (e.g., once defendant undertakes to aid, must use reasonable care). Exception: Many states now have "Good Samaritan" statutes exempting doctors, nurses, etc from liability for ordinary, but not gross negligence.
(2) One has a duty to assist someone he has negligently or innocently placed in peril.
(3) A special relationship between parties (e.g., parent-child) may impose a duty to act. Similarly, common carriers, innkeepers, shopkeepers, and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons. Also, places of public accommodation have a duty to prevent injury to guests by third persons.
(4) Generally, no duty to prevent third person from injuring another. Affirmative duty may be imposed, however, if one has actual ability and authority to control a person's actions, and knows/should know person is likely to commit acts that would require exercise of his contract.

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Breach of Duty

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Where defendant's conduct falls short of that level required by applicable standard of care owed to plaintiff, she has breached her duty. Main problem is proof of breach. Three theories:
(1) Custom or Usage - May be used to establish standard of care, but does not control the question of whether certain conduct amounted to negligence. For example, although certain behavior is custom in an industry, a court may find entire industry is acting negligently.
(2) Violation of Statute: Existence of a duty owed to plaintiff and breach thereof may be established as matter of law by proof that defendant violated an applicable statute (negligence per se). Causation and damages must still be established by plaintiff.
(3) Res Ipsa Loquitur

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Res Ipsa Loquitur

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In some cases, very occurrence of an event may tend to establish a breach of duty. This doctrine requires plaintiff to show that
(1) accident causing injury is a type that would not normally occur less someone was negligent; and
(2) negligence is attributable to defendant.

Can often be shown by evidence that injury-causing instrumentality was in defendant's exclusive control. Plaintiff must also establish freedom from fault on his part. Where res ipsa loquitur is established, plaintiff has made his prima facie case and no directed verdict may be given for defendant.

Plaintiff's motion for directed verdict should always be denied except in rare case where plaintiff has established negligence per se and no issues with proximate cause.

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Causation

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Once negligent conduct is shown, plaintiff must show that conduct was cause of the injury. For liability to attach, plaintiff must show both actual cause and proximate cause.

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Actual Cause (Causation in Fact)

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Tests:
(1) But For Test - Injury would not have occurred but for the act. Test applies where several acts (each insufficient alone to cause injury) combine to cause the injury.
(2) Joint Causes - Substantial Factor Test: Where several causes bring about an injury, and any one alone would have been sufficient to cause the injury, defendant's conduct is cause in fact if it was a substantial factor in causing the injury.
(3) Alternative Causes Approach: Test applies where there are 2 acts, only one of which causes injury, but it is not known which one. Burden of proof shifts to defendants and each must show his negligence is not the actual cause.

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Proximate Cause (Legal Causation)

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Defendant's conduct, in addition to being cause in fact, must be proximate cause. Even though conduct actually caused plaintiff's injury, it might not be deemed to be proximate cause. Thus, doctrine of proximate causation is a limitation of liability and deals with liability or nonliability for unforeseeable or unusual consequences of one's acts.

General Rule: Defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. This is a foreseeability test.

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Liability in Direct Cause Cases

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Where there is an uninterrupted chain of events from the negotiable act to plaintiff's injury, defendant is liable for all foreseeable harmful results, regardless of unusual manner or timing. Defendant is not liable for unforeseeable harmful results not within the risk created by defendant's negligence. Most harmful results will be deemed foreseeable in direct cause cases.

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Liability in Indirect Cause Cases

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An affirmative intervening force (e.g., an act of third person, an act of God) comes into motion after defendant's negligent act and combines with it to cause plaintiff's injury.

Defendant liable when foreseeable results caused by foreseeable intervening forces.

Common intervening forces:
(1) Subsequent medical malpractice;
(2) Negligence of rescuers;
(3) Efforts to protect person/property of oneself or another;
(4) Injuries caused by another "reacting" to defendant's actions;
(5) Subsequent diseases caused by a weakened condition; and
(6) Subsequent accident substantially caused by original injury.

These six are almost always foreseeable. Independent intervening forces that are not a natural response/reaction may be foreseeable if defendant's negligence increased risk of harm from those forces:
(1) negligent acts of third persons;
(2) crimes/intentional torts of third persons; and
(3) acts of God.
Foreseeable results caused by unforeseeable intervening forces = defendant usually liable (not where force = crime/intentional tort by third person). Unforeseeable results caused by foreseeable intervening forces = defendant not liable.
Unforeseeable results caused by unforeseeable intervening forces = defendant not liable (and will typically break causal connection).

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Unforeseeable Extent or Severity of Harm

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In all cases, defendant takes his plaintiff as he finds him; i.e., defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable. This is also known as the "eggshell-skull plaintiff" rule.

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Damages

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(1) Personal Injury - Plaintiff is to be compensated for all damages (past, present, and future), both special and general. Foreseeability is generally irrelevant.
(2) Property Damage - Reasonable cost of repair or, if properly nearly destroyed, FMV at time of accident.
(3) Punitive Damages - Plaintiff may recover if defendant's conduct is "wanton and willful," reckless, or malicious.
(4) Nonrecoverable Items - Interest from date of damage in personal injury action and attorneys fees.
(5) Duty to Mitigate - Plaintiff has a duty to take reasonable steps to mitigate damages (e.g., seek appropriate treatment).
(6) Collateral Source Rule - Damages are not reduced just because plaintiff received benefits from other sources, e.g., health insurance.

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Contributory Negligence

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No defense to intentional tortious conduct or "wanton and willful" misconduct.
At common law, contributory negligence barred plaintiff's right to recovery. Almost all jurisdictions today favor a comparative negligence system.

Last Clear Chance Exception: Permits plaintiff to recover despite contributory negligence. Person with last clear chance to avoid accident who fails to do so is liable for negligence. Typically this is plaintiff's rebuttal to defense of contributory negligence.

Where plaintiff is in "helpless peril," defendant will be liable if he knew/should have known of plaintiff's predicament. In "inattentive peril" situations, i.e., plaintiff could have extricated herself if attentive, defendant must have actually known of plaintiff's predicament.

As a general rule, contributory negligence of a third party will be imputed to plaintiff (and bar her claim) only when relationship between third party and defendant is such that a court could find the plaintiff vicariously liable for third party's negligence.
Negligence is imputed in master-servant, partner, and joint venturer relationships. Negligence not imputed between husband and wife, parent and child, and auto owner and driver.

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Assumption of Risk

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Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant's act. Plaintiff must have (1) known of the risk and (2) voluntarily proceeded in the face of the risk.

Knowledge may be implied where risk is one that an average person would appreciate. Plaintiff may not be said to assume the risk where no available alternative or in situations involving fraud, force, or emergency. Common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk.

Risk may be assumed by express agreement.

Not a defense to intentional torts, but it is a defense to wanton and willful misconduct.

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Comparative Negligence

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Plaintiff's contributory negligence, in these cases, is not a complete bar to recovery. Trier of fact weighs plaintiff's negligence and reduces damages accordingly. Majority of states allow plaintiff to recover only if her negligence was less serious or no more serious than that of defendant (partial comparative negligence). "Pure" comparative negligence states, however, allow recovery no matter how great plaintiff's negligence.

Last clear chance not used in comparative negligence jurisdictions. Most comparative negligence jurisdictions have abolished defense of implied assumption of risk, but retained express assumption of risk. In most states, plaintiff's negligence will be taken into account even though defendant's conduct was "wanton and willful" or "reckless," but not if it was intentional.

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Strict Liability

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Elements:
(1) Existence of an absolute duty on the part of defendant to make safe;
(2) Breach of that duty;
(3) Breach was actual and proximate cause of plaintiff's injury; and
(4) Damage to plaintiff's person or property.

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Liability for Animals

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Owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.
Owner is strictly liable to licensees/invitees for injuries by wild animals as long as injured person did nothing to bring about the injury.
Owner not strictly liable for injuries caused by domestic animals unless he has knowledge of particular animal's dangerous propensities that are not common to the species.
Strict liability will not generally be imposed in favor of trespassers in absence of the owner's negligence. However, a landowner may be liable on intentional tort grounds for injuries inflicted by vicious watchdogs.

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Ultrahazardous or Abnormally Dangerous Activities

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Three requirements for application of strict liability:
(1) Activity must involve risk of serious harm to persons or property;
(2) Activity must be one that can't be performed without risk of serious harm no matter how much care is taken; and
(3) Activity is not commonly engaged in in the particular community (blasting, manufacturing explosives, etc). Some courts also consider the value of the activity and its appropriateness to the location.

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Extent of Liability

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Duty owed is the absolute duty to make safe the normally dangerous characteristic of the animal or activity. It is owed to all foreseeable plaintiffs.

In contributory negligence states, contributory negligence is no defense if plaintiff has failed to realize the danger or guard against it. It is a defense if plaintiff knew of the danger and his unreasonable conduct was the very cause of the ultrahazardous activity miscarrying. Assumption of risk is a good defense to strict liability. Most comparative negligence states apply their comparative negligence rules to strict liability.

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Theories of Liability - Products Liability

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Five theories:
(1) Intent;
(2) Negligence;
(3) Strict Liability;
(4) Implied Warranties of Merchantability and Fitness for a Particular Purpose; and
(5) Representation Theories (Express Warranty and Misrepresentation.

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Common Elements - Products Liability

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Plaintiff must show (under all five theories):
(1) a defect; and
(2) existence of the defect when the product left defendant's control.

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Types of Defects - Products Liability

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Manufacturing Defects: A product emerges from manufacturing different and more dangerous than those made properly.

Design Defects: All products of a line are the same, but have dangerous propensities.

Inadequate Warnings: Product may be defective as a result of manufacturer's failure to give adequate warnings as to the risks involved in using the product. For liability to attach, danger must not be apparent to users.

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Proving a Defect - Products Liability

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Manufacturing Defects: Defendant will be liable if plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect. Defendant must anticipate reasonable misuse. Applies to defective food, too.

Design Defects: Plaintiff must show defendant could have made product safer without serious impact on product's price or utility.

Government Safety Standards: Product's noncompliance with government safety standards is evidence, but not conclusive evidence, that product is defective.

Scientifically Unknowable Risk: Defendant will not be held liable for dangers not foreseeable at time of marketing.

Unavoidably Unsafe Products: Manufacturers will not be held liable for some dangerous products (e.g., knives) if the danger is apparent and there is no safer way to make the product.

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Existence of Defect When Product Left Defendant's Control - Products Liability

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Defect must have existed when product left defendant's control. This will be inferred if product moved through normal channels of distribution.

No requirement for privity of contract.

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Liability Based on Intent - Products Liability

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Defendant will be liable to anyone injured by an unsafe product if defendant intended the consequences of knew that they were substantially certain to occur. Products liability actions based on intent aren't common. If intent is present, most likely tort is battery.

Any injured plaintiff can sue (no privity required). Compensatory and punitive damages are allowed.

Defenses: Those available to other intentional torts.

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Liability Based on Negligence - Products Liability

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Must show:
(1) duty;
(2) breach;
(3) actual/proximate cause; and
(4) damages.

Duty of care owed to any foreseeable plaintiff. Privity not required. So any foreseeable plaintiff can sue, including users, consumers, and bystanders.
Commercial suppliers such as manufacturers, wholesalers, and retailers can be held liable.

Breach of duty shown by:
(1) negligent conduct of defendant leading to
(2) supplying of a defective product.
Negligence proved in same ways as a standard negligence case. Very difficult to hold retailers and wholesalers liable for negligence since they can usually satisfy their duty through cursory inspection.

Causation: an intermediary's negligent failure to discover a defect doesn't supersede the original manufacturer's negligence unless intermediary's conduct exceeds ordinary foreseeable negligence.
Physical injury or property damage must be shown (no recovery for purely economic loss).
Defenses are the same as in regular negligence action.

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Liability Based on Strict Tort Liability - Products Liability

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Elements:
(1) Strict duty owed by a commercial supplier of a product;
(2) Breach of that duty;
(3) Actual/proximate cause; and
(4) Damages.

Defendant has duty to supply safe products. Privity not required. For liability to attach, product must reach plaintiff without substantial alteration.
Strict products liability applies only to products. Even where a product is provided incident to a service (e.g., blood during an operation), no strict liability. Plaintiff may, however, sue in negligence.
Any commercial supplier can be held liable. Casual sellers will not be held strictly liable.
Breach of Duty: Plaintiff must show product is defective. Defect must make product unreasonably dangerous. Retailers may be liable even if they have no opportunity to inspect the product.
Causation: Actual = product defective when left defendant's control. Proximate = same as standard negligence cases.
Physical injury/property damage required - sole economic loss is insufficient.
Defenses: In contributory negligence states, no defense where plaintiff merely failed to discover defect or guard against it, or where plaintiff's misuse was reasonably foreseeable. Assumption of risk is a defense. In comparative negligence states, regular rules apply.
Disclaimers are irrelevant in negligence or strict liability cases if personal injury or property damages apply.

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Implied Warranties of Merchantability and Fitness - Products Liability

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Merchantability: Refers to whether goods are of average acceptable quality and are generally fit for ordinary purpose for which the goods are used.

Fitness for a Particular Purpose: Seller knows/has reason to know particular purpose for which goods are required, and buyer is relying on seller's skill and judgment in selecting the goods.

Most courts no longer require vertical privity. Most states adopted a narrow version of horizontal privity requirement. Buyer, family, household, and guests can sue for personal injuries. These warranties extend to bailments and leases as well as sales.

Breach - failing to live up to standards in warranties. Plaintiff doesn't have to prove any fault on part of defendant.
Actual/proximate case - same as standard negligence cases.
Personal injury, property damages, and purely economic loss recoverable.
Defenses: Assumption of risk and contributory negligence to same extent as strict liability cases. Failure to give notice of breach of warranty is a defense under UCC.
Disclaimers generally rejected in personal injury cases but upheld for economic loss.

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Express Warranty - Products Liability

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Any affirmation of fact or promise concerning goods that becomes part of basis of bargain creates express warranty.

Any consumer, user, bystander can sue. Also applies to bailments of leases. If buyer sues, warranty must have been part of basis for bargain. If plaintiff not in privity (e.g., bystander), she need not have relied, so long as someone did.
Fault need not be shown to establish breach. Plaintiff need only show product didn't live up to its warranty.
Causation, damages, and defenses same as under implied warranties.
Disclaimer will be effective in the unlikely case that it is consistent with warranty.

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Misrepresentation of Fact

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Seller will be liable for misrepresentations of facts concerning a product where:
(1) statement was of a material fact concerning quality or uses of goods (mere "puffery" insufficient), and
(2) seller intended to induce reliance by the buyer in a particular transaction.

Justifiable reliance required. Need not be plaintiff who relied, though - may have been prior purchaser. Privity is irrelevant.
Actual cause shown by reliance. Proximate cause and damages same as for strict liability.
Defenses: Assumption of risk not a defense if plaintiff is entitled to rely on the representation. Contributory negligence is same as in strict liability, unless defendant committed intentional misrepresentation.

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Private Nuisance

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Substantial, unreasonable interference with another private individual's use or enjoyment of property he actually possesses or to which he has immediate right of possession.
Substantial interference = offensive, inconvenient, or annoying to average person in community. Not substantial if merely result of plaintiff's hypersensitivity or specialized use of his property.
Unreasonable interference = severity of inflicted injury must outweigh the utility of defendant's conduct. In balancing, courts take into account every person is entitled to use his own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to defendant.

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Public Nuisance

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An act that unreasonably interferes with health, safety, or property rights of the community, e.g., using a building for criminal activities such as prostitution. Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large.

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Remedies - Nuisance

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Damages usually awarded.

Injunctive Relief: awarded when legal remedy of damages is unavailable or inadequate (e.g., nuisance will cause irreparable injury). Court will consider relative hardships, but not where defendant's conduct was willful or against an assertion of right by plaintiff.

Abatement by Self-Help: with private nuisance, available after notice to defendant and his refusal to act. Only necessary force may be used. With public nuisance, only a public authority or private party who has suffered unique damage can seek an injunction or abatement.

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Defenses - Nuisance

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Legislative Authority: Legislative authority for "nuisance activity" (e.g., zoning ordinance) is not an absolute defense, but it is persuasive.

Conduct of Others: No one actor is liable for all damage caused by concurrence of his acts and others'. Example - 10 steel mills polluting a stream. Each mill is only responsible for the pollution it causes.

Contributory Negligence: Generally no defense to nuisance unless plaintiff's case rests on a negligence theory.

Coming to the Nuisance: Generally not a bar to plaintiff's action unless she "came to the nuisance" for the sole purpose of bringing a harassing lawsuit.

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Vicarious Liability

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Liability that is derivatively imposed. In short, this means one person commits a tortious act against a third party and another person will be liable to the third party for this act.

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Respondeat Superior (Vicarious Liability)

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Master/employer will be vicariously liable for tortious acts committed by her servant/employee if tortious acts occur within scope of employment relationship.

Frolic and Detour: Employee making minor deviation from his employer's business for own purposes is still acting within scope of employment. If deviation (time/geographic area) substantially, employee not liable.

Intentional Torts: Usually held that intentional tortious conduct by servants not within scope of employment. Exceptions: (1) force is authorized in the employment (e.g., bouncer), (2) friction generated by employment (e.g., bill collector), (3) employee is furthering business of employer (e.g., removing customers from premises because they are rowdy).
Employers may be liable for their own negligence by negligently selecting/supervising employees (not vicarious liable though).

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Independent Contractor Situations - Vicarious Liability

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In general, principal will not be vicariously liable for tortious acts of her agent if agent is an independent contractor. Two broad exceptions:
(1) Independent contractor is engaged in inherently dangerous activities (e.g., excavating next to public sidewalk, blasting) and (2) duty, because of public policy considerations, is simply nondelegable (e.g., duty to use due care in building a fence around an excavation site).

Employer may be liable for own negligence in selecting or supervising independent contractor (e.g., hospital liable for contracting with unqualified and incompetent physician who negligently treats hospital's patient). Not vicarious liability, though.

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Partners and Joint Venturers - Vicarious Liability

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Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in scope and course of the affairs of the partnership or joint venture.

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Automobile Owner for Driver - Vicarious Liability

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General rule is that a car owner is not vicariously liable for tortious conduct of another person driving it. In some jurisdictions, courts employ theories other than vicarious liability to hold car owner liable.

Family Car Doctrine: In many states, owner liable for tortious conduct of immediate family or household members driving with owner's express or implied permission.

Permissive Use: A number of states have now gone farther by imposing liability on owner for damage caused by anyone driving with owner's consent.

Negligent Entrustment: Owner may be liable for own negligence in entrusting car to a driver. Some states have imposed liability on owner if she was present in the car at the time of the accident on theory that she should have prevented the negligent driving, and hence was negligent herself in not doing so (not vicarious liability, though).

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Bailor for Bailee - Vicarious Liability

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Under general rule, bailor not vicariously liable for tortious conduct of bailee.

Negligent Entrustment: As with car owners, bailor may be liable for own negligence in entrusting bailed object (not vicarious liability, though).

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Parent for Child - Vicarious Liability

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At common law, parent not vicariously liable for tortious conduct of a child. Most states, by statute, make parents liable for willful and intentional torts of their minor children up to a certain dollar amount.

Courts: May impose vicarious liability if child committed a tort while acting as agent for parents.

Parent may be held liable for her own negligence in allowing child to do something (e.g., use a dangerous object without proper instruction). Further if parent is apprised of kid's conduct on past occasions showing a tendency to injure another's person or property, may be liable for not using due care in exercising control to mitigate such conduct (e.g., by allowing child to play with other kids he has a history of attacking).

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Tavernkeepers - Vicarious Liability

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Common Law: No liability imposed for injuries resulting from vendee's intoxication, whether sustained by vendee or third person as result of vendee's conduct.

Modern Law: Many states have enacted Dramshop Acts. Such acts usually create a cause of action in favor of any third party injured by intoxicated vendee. Several courts have imposed liability on tavernkeepers even in absence of Dramshop Act. This liability based on ordinary negligence principles (foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicariously liability.

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Joint and Several Liability

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Where two or more negligent acts combine to proximate cause an indivisible injury, each negligent actor will be jointly and severally liable (each liable to plaintiff for entire damage incurred). If injury is divisible, each defendant liable for identifiable portion.

Where two or more defendants act in concert and injure plaintiff, each is jointly and severally liable, even if injury is divisible.

May states have abolished joint liability either (1) for those defendants judged to be less at fault than plaintiff, or (2) for all defendants regarding noneconomic damages. In these cases, liability will be proportional to defendant's fault.

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Satisfaction and Release

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Satisfaction: Recovery of full payment. Only one satisfaction allowed. Until there is satisfaction, plaintiff may proceed against all jointly liable parties.

Release: At common law, release of one joint tortfeasor was a release of all joint tortfeasors. A majority of states now provide that a release of one tortfeasor does not discharge other tortfeasors unless expressly provided in the release agreement.

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Contribution

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Allows defendant who pays more than his share of damages to have a claim against other jointly liable parties for the excess (i.e., it apportions responsibility among those at fault).
Limitations: Contributing defendant must be originally liable to plaintiff. Also, contribution not applicable to intentional torts.

Methods of Apportionment:
(1) Comparative Contribution - Most states have a comparative contribution system whereby contribution imposed in proportion to relative fault of various defendants.
(2) Equal Shares - in a minority of states, apportionment is in equal shares regardless of degrees of fault.

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Indemnity

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Involves shifting entire loss between or among tortfeasors. Available in following circumstances:
(1) by contract;
(2) in vicarious liability situations;
(3) under strict products liability; and
(4) in some jurisdictions, where there has been an identifiable difference in degree of fault (e.g., retailers who negligently rely on a product's condition may receive indemnification from manufacturer who negligently manufactured it).

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Comparative Contribution

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Most comparative negligence states have adopted a comparative contribution system where contribution is in proportion to relative fault of the various defendants. This approach also supplants indemnification rules based on identifiable differences in degree of fault.

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Survival and Wrongful Death

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Survival Acts allow one's cause of action to survive death of one or more of the parties. These acts apply to actions involving torts to property and torts resulting in personal injury. However, torts invading intangible personal interest (e.g., defamation, malicious prosecution) expire upon victim's death.

Wrongful Death: These acts grant recovery for pecuniary injury resulting to spouse and next of kin. A decedent's creditors have no claim against the amount awarded. Recovery is allowed only to extent deceased could have recovered in action if he'd lived (e.g., deceased's contributory negligence reduces recovery in contributory negligence states).

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Tortious Interference with Family Relationships

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Husband-Wife: Either spouse may bring an action for indirect interference with consortium and services caused by defendant's intentional or negligent tortious conduct against other spouse.

Parent-Child: Parent may maintain an action for loss of child's services as a result of defendant's tortious conduct, whether intentional or negligent. A child, however, has no action in most states against one who tortiously injures the parent.

Nature of Action: Actions for interference with family relationships are derivative. Hence, any defense that would prevent recovery by injured family member also prevents recovery for interference with family relationship.

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Intra-Family Tort Immunities

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Under traditional view, one member of family unit could not sue another in tort for personal injury. Most states have abolished husband-wife immunity. A slight majority have also abolished parent-child immunity (but generally doesn't allow children to sue merely for negligent supervision). Those that retain it do not apply it if:
(1) for intentional tortious conduct, and
(2) in auto accident cases to extent of insurance coverage.

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Federal Government Tort Immunity

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Under Federal Tort Claims Act, the U.S. has waived immunity for tortious acts. However, immunity will still attach for
(1) assault,
(2) battery,
(3) false imprisonment,
(4) false arrest,
(5) malicious prosecution,
(6) abuse of process,
(7) libel and slander,
(8) misrepresentation and deceit, and
(9) interference with contract rights.

Immunity not waived for acts characterized as "discretionary."

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State and Local Government Tort Immunity

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Most states have substantially waived their immunity to same extent as federal government. About half have also abolished municipal immunity to the same extent. Where municipal immunity has been abolished, the "public duty" rule provides that a duty owed to public at large is not owed to any particular citizen absent a special relationship between government body and citizen. Where municipal immunity still exists, contrast "governmental" functions (i.e., functions that could only be performed adequately by the government) and "proprietary" functions (functions that might as well have been provided by a private corporation). Courts limit application of sovereign immunity by not granting it for proprietary functions.

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Tort Immunity of Public Officials

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Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability attaches, however, for ministerial acts.

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Charitable Immunity

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Most jurisdictions have eliminated charitable immunity.