Torts

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Torts Mnemonic

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I Demand Private Attorneys Sue Naughty, Negligent Generals!
I (ABCFITT/DARNCOPS)
Private (AFLIP)
Attorneys (I’M WAM)
General (VJIW)

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ESSAY STRUCTURE

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(1) State the tort, (2) prima facie case, (3) apply law to facts, (4) conclusion, (5) defenses, (6) general considerations

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INTENTIONAL TORTS

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Act (volitional), Intent (specific/substantial certainty/transferred), Causation (substantial factor; liable for all consequences)

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Battery

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A harmful or offensive contact with P’s person. (offensive = not permitted by person of ordinary sensitivity)

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Assault

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An act by D creating a reasonable apprehension (knowledge) in P of immediate harmful or offensive contact with P’s person.
i. Words alone insufficient, but can negate reasonable apprehension.

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False imprisonment

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An act or omission by D that confines or restrains P to a bounded area.
i. P must know of the confinement or be harmed by it.
ii. “Bounded” area: freedom of movement must be limited in all directions; no reasonable means of escape known to P.

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Intentional infliction of emotional distress

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Extreme or outrageous conduct causing severe emotional distress.
i. Requires proof of actual damages (severe emotional distress); recklessness satisfies the intent req’t.
ii. 3P bystander may recover if she was present during the act, is a close relative of the P, and P knew the 2 preceding facts.

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Trespass to land

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D intentionally invades P's property (land, surface, air)
i. D need intend only to enter that land; he need not know the land belonged to another.

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Trespass to chattels

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An act by D that interferes (damaging/dispossession) w/P’s right to possession in a chattel; damages.
i. Remedy: actual damages from harm to chattel or loss of use (if dispossession, rental value)

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Conversion

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Act by D that interferes w/P’s right of possession in chattel, so seriously that it warrants requiring D to pay chattel’s full value.
i. Remedies: Damages (FMV at time of conversion) or replevin

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Private nuisance

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1) Substantial and 2) unreasonable (DISCUSS UTILITY) 3)interference with a 4) private individual’s 5) use and enjoyment of his land. The interference must be offensive, inconvenient, or annoying to an average person in the community.
i. Defenses: zoning ordinance (notice), coming to the nuisance is NOT a defense.

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Public nuisance

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Unreasonably interference w/the health and safety, property or public rights of the community causing particular injury to the P.
A private individual may only recover if he or she suffers unique damage.

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Intentional Tort Defenses

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DARNCOPS
Discipline
Authority of law
Recapture
Necessity
Consent
Others (defense of)
Property (defense of)
Self (defense of)

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Consent

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Was there a valid consent? If yes, did D stay w/in the scope?
1. Consent: express, apparent from custom and usage or P’s conduct, or implied by law.
2. D must have capacity to be capable of consent.

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Self-defense

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If D reasonably believes that she is about to be attacked, D may use reasonable force necessary to protect himself from imminent bodily harm. (Reasonable mistake allowed)

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Defense of others

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One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself. (Reasonable mistake allowed)

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Defense of property

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D may use reasonable force (never deadly) to prevent a tort to his property. A request to desist must be first made unless it would clearly be futile.
One may also use force when in hot pursuit of another who has tortiously dispossessed the owner of her chattels because the tort is viewed as still being committed.
Reasonable mistake:
Yes: as to intrusion, whether request is required
No: whether entrant has privilege, unless entrant enters in a way such to make the O believe the entry is not privileged.

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Recovery of property

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Recovery of property allows a person to use reasonable force in hot pursuit of someone wrongfully taking property.

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Public necessity

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D may interfere with real/personal property of another when reasonably necessary for public good.

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Private necessity

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D may interfere with P's real/personal property of another when reasonably necessary to protect his own interest. The actor must pay for any injury he causes.

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Shopkeeper’s privilege

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Shopkeeper’s privilege is permitted to detain a person for a reasonable period of time based on a reasonable belief of theft.

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Defamation

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Defamation is a defamatory statement of or concerning P, published to a 3P that damages the (living) P’s reputation.

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Defamation Damages

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Special (economic) damages must be proven, but are presumed where the statement is libel (minority of JX distinguish between libel per se and liber per quod) or slander per se.
1. Libel is written or printed publication of defamatory language.
2. Slander is spoken defamation.
3. Slander per se is spoken defamation concerning conviction of serious crime, loathsome disease, unchastity of a woman, or adversely reflect on one’s conduct in a business or profession. "CLUB"

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Defamation Constitutional Constraints

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Public figures/public concern must also prove falsity of the statement and malice (knowledge of falsity/reckless disregard to truth).
Private figures/public concern must prove falsity of the statement and negligence regarding the falsity, and where malice is found, damage may be presumed and punitive damages allowed.

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Defamation Chart

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Defamation Defenses

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Consent
Truth (if matter is not one of public concern)
Absolute Privilege (can never be lost): remarks made during judicial proceedings, by legislators in debate, fed officials, b/t spouses
Qualified privilege (can be lost through abuse): reports of official proceedings, fair comment opinion, socially useful purposes

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Appropriation

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An unauthorized use of P’s name or picture for D’s commercial advantage.

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Intrusion into Seclusion

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Prying or intruding into P’s privacy or seclusion that is objectionable to a reasonable person.

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False light

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Exists where D attributes to P false or misleading facts objectionable to a reasonable person. (malice req’d if public matter)(Publication required for damages)

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Public Disclosure of Private Facts

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Public disclosure of private information about P that would be objectionable to an average person.
i. Truth is not a defense.
ii. Private-reasonable attempt to keep it private
iii. Cannot be a legitimate public concern.

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What should you always discuss with privacy torts?

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IIED

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Intentional misrepresentation (Fraud, Deceit)

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Misrepresentation of a material fact with knowledge of falsity, intent to induce reliance, causing actual reliance, P reasonably relied, and P suffered actual pecuniary loss.

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Negligent misrepresentation

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Misrepresentation by D in a business or professional capacity, breach of duty toward a particular P, causing, justifiable reliance, and damages.

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Malicious prosecution

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Instituting a criminal proceeding against P without probable cause for an improper purpose which terminated in P’s favor.

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Wrongful civil proceedings

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Most jurisdictions have extended the malicious prosecution actions to cover civil cases.

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Abuse of process

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Wrongful use of process for an ulterior purpose and definite act or threat against P in order to accomplish that ulterior purpose.

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Interference w/business relations & Defense

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1) existence of a valid contractual relationship between P and a 3P or valid business expectancy of P;
2) D knew of the relationship or expectancy;
3) intentional interference by D inducing a breach or termination of the relationship or expectance; and
4) damages
Privilege: D's conduct may be privileged where it is a proper attempt to obtain business for itself or protect its interests, particularly if D is interfering only with P's prospective business rather than with existing Ks.

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NEGLIGENCE

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Duty (standard of conduct), Breach, Actual and Proximate Cause, Damage

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Duty

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A person owes a duty of care to others to act as a reasonable person under similar circumstances to foreseeable plaintiffs (zone of danger/everyone)

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Trespassers

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No duty owed to undiscovered trespassers. As to discovered or anticipated trespassers, landowner has duty to warn or make safe concealed, unsafe known artificial conditions involving risk of death or serious bodily harm and use reasonable care in the exercise of “active operations on the property.”

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Attractive nuisance doctrine

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A landowner must exercise ordinary care to avoid reasonably foreseeable risks of harm caused by artificial conditions. P must show 1) a dangerous condition of which D knows or should have known, 2) D knows or should know children frequent the vicinity, 3) condition is likely to cause injury b/c of child’s inability to appreciate risk, and 4) expense of remedying the situation is slight compared with magnitude of risk.

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Licensees

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Duty to warn of dangerous conditions known to the owner that create an unreasonable risk of harm to the licensee and that licensee is unlikely to discover, and exercise of reasonable care w/r/t activities on the property.
a. No duty to inspect or repair.
b. Licensee is one who enters w/permission for her own purpose/business, e.g., social guest

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Invitees

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Same duties as licensees PLUS a duty to make reasonable inspection.
a. Invitees enter for a purpose connected w/landowner’s business or for which the land is held open to the public

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Bailor/Bailee Duties

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Bailor/Bailee-
Bailor Duties: Gratuitous, the bailor must inform of known, dangerous defects in the chattel. Bailment for hire, the bailor must inform of chattel defects of which he is aware or should be aware.
Bailee Duties:
Sole benefit of the bailor: low standard of care
Sole benefit of the bailee: high standard of care
Mutual benefit: ordinary standard of care

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Statutory standard of care

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A statutory standard of care may replace CL duty of care if statute provides for a criminal penalty, clearly defines the std of conduct, P is w/in the protected class, and statute was designed to prevent the type of harm suffered by P.
1. Violation may be excused if compliance would cause more danger than violation, or where compliance is beyond D’s control.
2. Unexcused violation is negligence per se (conclusive presumption of duty and breach of duty).

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Affirmative duty to act

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SCRAP
There is no legal duty to act unless:
1. Statute requires
2. Contract promises
3. Relationship requires
4. Assumption of duty undertaken--Duty to control third persons if one has actual ability and authority to control a person’s actions, and knows or should have known the person is likely to commit acts that would require exercise of control.
5. Peril caused by D

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Superior knowledge

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A person with superior knowledge must act as a reasonably prudent person with superior knowledge.

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Professionals

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Professionals owe a duty of care of an average member of the profession practicing in a similar community. (Specialists: national std)

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Negligent infliction of emotional distress

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The duty to avoid causing emotional distress to another is breached when D creates a foreseeable risk of physical injury to P, 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.
Injury required except where there is an erroneous report of a relative's death or a mishandling of a relative's corpse.
Zone of danger requirement: Most courts require that the threat be directed at P or someone in her immediate presence.
A bystander may recover if he witnessed the negligent injury of a close family member.

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Theories available to a P for breach of duty by D

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1. Custom or usage
2. Violation of statute
3. Res ipsa loquitor

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Breach

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Breach occurs when D’s conduct falls short of the level required by the applicable standard of care owed to P.
D breached his duty to (standard of care) when he (fill in facts).

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Res ipsa loquitor

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The very occurrence of an event tends to establish a breach of duty. P must show the accident causing the injury is a type that would not normally occur absent negligence, by evidence that instrumentality causing the injury was in D’s exclusive control.

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MBE questions asking whether a motion for directed verdict should be granted

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Deny if P has established RIL or presented some other evidence showing D's breach (such as D's violation of a statute).
Grant if D has not established RIL or some other evidence of breach.

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Causation

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Actual
Proximate

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Actual causation

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But for the act or omission P’s injury would not have occurred.
1. Joint causes (any one cause alone sufficient to cause the injury): Substantial factor test
2. Alternative causes (2 acts, only one causes the injury but unknown as to which one) BoP shifts to D, and each must show that his negligence is not the actual cause.

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Proximate causation

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The injury was foreseeable and there was no superseding intervening force.
1. D is liable for all foreseeable harmful results.
2. Foreseeable intervening causes: negligent medical treatment, negligent rescue, protective movement in reaction, subsequent disease or accident.
3. Superseding intervening causes: intervening forces that produce unforeseeable results (results not w/in the increased risk created by D’s negligence) are generally deemed unforeseeable and superseding. Superseding forces break the causal connection b/t D’s initial negligent act and P’s ultimate injury, thus relieving D of liability.

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Negligence Defenses

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i. Comparative negligence
ii. Contributory negligence
iii. Assumption of risk

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Comparative negligence

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Partial CN: P may only recover if her negligence was less or no more serious than that of D. Majortiy JX
Pure CN-Where P is contributorily negligent, P’s damages are reduced accordingly. Minority of JX

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Contributory negligence

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Where P’s own negligence contributes to her injuries, P is barred from recovery.
1. Exception: Last Clear Chance: person w/the last clear chance to avoid an accident who fails to do so is liable for negligence.

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Assumption of risk

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P is barred from recovery where he was aware or should have been aware of the risk and voluntarily proceeded in the its face. Not available in comparative negligence JX.
Exceptions:
No available alternative.

Common Carriers and public utilities may not limit their liability by disclaimer.

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Strict Liability

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P must show an absolute duty on D’s part to make safe, breach, actual and proximate causation, and damages.

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Wild animals

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An owner is strictly liable to licensees and invitees for injuries caused by wild animals, provided the injured person did nothing to bring about the injury.
Trespassers: SL not imposed, the O must be negligent. However, an O may liable on intentional tort grounds for injuries inflicted by viscious watchdogs.

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Ultra-hazardous or abnormally dangerous activities

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D is strictly liable for activities that involves risk of serious harm to persons or property, cannot be made safe no matter how much care is taken, and is uncommon in the particular area.
Minority of JX: value of activity vs. importance of activity to area.

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Strict Liability Defenses

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Assumption of risk, comparative negligence. (contributory negligence is NO defense)

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PRODUCTS LIABILITY

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P must show a defect which existed when the product left D’s control. All commercial suppliers can be held liable.

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Products Liability Approach

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P.S. I Should Never Want Rain.
1. Products liability umbrella statement
2. Show defect>DIM
3. Intent
4. S/L
5. Negligence
6. Warranties
7. Representations

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Types of defect

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DIM
Design
Manufacturing
Inadequate warning

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Manufacturing defect

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A manufacturing defect is shown where a product emerges from manufacturing in a way that makes it more dangerous than products made properly.

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Design defect

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A design defect is shown where P shows an alternative design that is safer, economically feasible and practical (does not destroy utility).

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Inadequate warnings

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A product may be defective as a result of the manufacturer's failure to give adequate warnings as to the risks of a non-apparent danger involved in using the product.

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Products Liability Negligence

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Negligence: A breach of duty is shown by D’s negligent conduct which leads to it placing a defective product in the supply chain.

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Strict products liability

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P must show 1) A strict duty owed by a commercial supplier of a product, 2) breach of that duty, 3) actual and proximate cause, 4) damage.

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Strict products liability defenses

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Comparative negligence and assumption of risk. Disclaimers are irrelevant for negligence or SL cases if personal injury/property damages occur)

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Implied warranties

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Implied warranty of merchantability
Implied warranty of fitness for a particular purpose

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Implied warranty of merchantability

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Implied in every sale of goods by a MERCHANT is a warranty that goods are of average acceptable quality and generally fit for the ordinary purpose for which such goods are used.
Allowed where loss is economic only.

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Implied warranty of fitness for a particular purpose

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Implied in every sale (ANY seller) of goods is a warranty that arises when the seller knows or should know the particular purpose for which the goods are required and that the buyer is relying on the seller’s skill and judgment in selecting the goods.
iii. Narrow horizontal privity requirement: buyer, family, household and guests can sue for personal injuries.
Allowed where loss is solely economic.
Privity Requirement: Buyer, household, family, and guest can sue for personal injury.

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Representation Theories for Product Liability Actions

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Express Warranty
Misrepresentation of fact.

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Vicarious liability

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Employers are liable for employee’s torts committed within the course and scope of employment.

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Express Warranty

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Any affirmation of fact or promise concerning goods that becomes a part of the basis of the bargain creates an EW.
Breach-Fault unnecessary. P must show that the product did not live up to the W.
Disclaimers-Only effective in the unlikely event that it is consistent with the W.

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Misrepresentation of Fact

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A seller will be liable for misrepresentation of facts concerning a product where:
1. The state was of a material fact (not puffery)
The seller intended to induce reliance by the buyer in a particular transaction.
The buyer relied on the representation.
Causation and Damages: Actual cause shown by reliance. Proximate cause and damage are the same as strict liability.

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Joint tortfeasors

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Joint defendants may seek contribution or indemnification from the other, but both are jointly and severally liable to the P.

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Wrongful death

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Recovery is allowed for pecuniary injuries resulting from the death of a spouse or next of kin to the extent the decedent would have recovered had he lived.

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Product Liability Umbrella Paragraph

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There are five theories of liability that P may use: intent, negligence, strict liability, IWoM and IWoF4aPP, and representation theories.