• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

Card Range To Study

through

image

Play button

image

Play button

image

Progress

1/124

Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

124 Cards in this Set

  • Front
  • Back
INTENTIONAL TORTS - PRIMA FACIE CASE - Act by Defendant
The act required is a volitional movement by defendant.
INTENTIONAL TORTS - PRIMA FACIE CASE - Act by Defendant - Intent
Intent may be either (i) specific (the goal in acting is to bring about specific consequences) or(ii) general (the actor knows with "substantial certainty" that these consequences will result).



Transferred Intent


General Rule


The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead (i) commits a different tort against that person, (ii) commits the same tort as intended but against a different person, or (iii) commits a different tort against a different person. In such cases, the intent to commit a certain tort against one person is transferred to the tort actually committed or to the person actually injured for purposes of establishing a prima facie case.




Limitations on Use of Transferred Intent


Transferred intent may be invoked only if both the tort intended and the tort that results are one of the following:




Assault;


Battery;


False imprisonment;


Trespass to land ; or


Trespass to chattels.




Everyone is "capable" of intent. Incapacity is not a good defense. Thus, young children and persons who are mentally incompetent will be liable for their intentional torts.





INTENTIONAL TORTS - PRIMA FACIE CASE - Act by Defendant - Causation
The result must have been legally caused by defendant's act or something set in motion by him. Causation is satisfied if defendant's conduct was a substantial factor in bringing about the injury.
INTENTIONAL TORTS -PRIMA FACIE CASE-INTENTIONAL TORTS TO THE PERSON - Battery
Battery

Elements of the prima facie case:


Harmful or offensive contact;


To plaintiff's person;


Intent; and


Causalion.




Harmful or Offensive Contact


Judged by Reasonable Person Standard


Harmfulness and offensiveness are judged by a reasonable person standard.




Exam Tip: Contact is considered offensive only if' it has not been consented to. However, consent will be implied for the ordinary contacts of everyday life (e.g., minor bumping on a crowded bus).




Direct or Indirect Contact


Contact can be direct (e.g., striking plaintiff) or indirect (e.g., setting a trap for plaintiff to fall into).




Plaintiff's Person


Plaintiff's person includes anything connected to the plaintiff (e.g., clothing or a pu rse).




Damages Not Required


Plaintiff can recover nominal damages even if actual damages are not proved. Plaintiff may recover punitive damages for malicious conduct.

INTENTIONAL TORTS -PRIMA FACIE CASE-INTENTIONAL TORTS TO THE PERSON - Assault
Elements of the prima facie case:

An act by defendant creating a reasonable apprehension in plaintiff;


Of immediate harmful or offensive contact to plaintiff 's person;


Intent; and


Causation.




Distinguish Fear


Apprehension should not be confused with fear or intimidation (e.g.• a weakling can cause apprehension and thus assault a bully).




Apparent Ability Sufficient


If defendant has the apparent ability to commit a battery, this will be enough to cause a reasonable apprehension.




Effect of Words


Words alone are not sufficient. For the defendant to be liable, the words must be coupledwith conduct. However, words can negate reasonable apprehension (e.g., the defendant shakes her fist but states that she is not going to strike the plaintiff).




Requirement of Immediacy


Plaintiff must be apprehensive that she is about to become the victim of an immediate battery.




Damages Not Required


Plaintiff can recover nominal damages even if actual damages are not proved. Malicious conduct may permit recovery of punitive damages.

INTENTIONAL TORTS -PRIMA FACIE CASE-INTENTIONAL TORTS TO THE PERSON - False Imprisonment

Elements of the prima facie case:



An act or omission on the part of defendant that confines or restrains plaintiff;


To a bounded area;


Intent; and


Causation.



Sufficient Methods of Confinement or Restraint


Sufficient acts of restraint include: (i) physical barriers, (ii) physical force, (iii) threats of force, (iv) failure to release, and (v) invalid use of legal authority (see D.3.c., infra) .



Insufficient Methods of Confinement or Restraint


Insufficient acts of restraint include: (i) moral pressure and (ii) future threats.



Time of Confinement


It is irrelevant how short the period of the confinement is.



Awareness of Confinement


Plaintiff must know of the confinement or be harmed by it.



What Is a Bounded Area?


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.



Damages Not Required


Plaintiff can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if defendant acted maliciously.

INTENTIONAL TORTS -PRIMA FACIE CASE-INTENTIONAL TORTS TO THE PERSON - Intentional Infliction of Emotional Distress
Elements of the prima facie case:

An act by defendant amounting to extreme and outrageous conduct;


Intent or recklessness;


Causation;


and Damages- severe emotional distress.




Extreme and Outrageous Conduct


This is conduct that transcends all bounds of decency. Conduct that is not normally outrageous may become so if:


It is continuous in nature;


It is directed toward a certain type of plaintiff (children, elderly persons, pregnant women , supersensitive adults if the sensitivities are known to defendant); or


It is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere "gross insults").




Requisite Intent


Unlike for other intentional torts, recklessness as to the effect of defendant's conduct will satisfy the intent requirement.




Damages


Actual damages (severe emotional distress), not nominal damages, are required. Proof of physical injury is not required. The more outrageous the conduct, the less proof of damages is required.




Exam Tip: Intentional infliction of emotional distress is the only intentional tort to the person that requires damages.




Causation in Bystander Cases


When the defendant intentionally causes physical harm to a third person and the plain tiff suffers severe emotional distress because of it, the plaintiff may recover by showing either the prima facie case elements of emotional distress or that (i) she was p t when the injury occurred, (H) she is a close relative of the injured person, and (iii) the defendant knew facts (i) and (ii).




Exam Tip: Intentional infliction of emotional distress is a fallback tort position. Thus, if another alternative in your exam question is a tort that will also allow plaintiff to recover, it should be chosen over this alternative.

INTENTIONAL TORTS -PRIMA FACIE CASE-INTENTIONAL TORTS TO PROPERTY - Trespass to Land
Trespass to Land

Elements of the prima facie case:


Physical invasion of plaintiff's real property;


Intent; and


Causation.




Physical Invasion


The invasion may be by a person or object (e.g., throwing a baseball onto plaintiff 's land is a trespass). If intangible matter (e.g., vibrations or odor) enters, the plainliff may have a case for nuisance.




Real Property


Real property includes not only the surface, but also airspace and subterranean space for a reasonable distance.




Intent


Defendant need intend only to enter onto that particular piece of land (he need not know that the land belonged to another).




Potential Plaintiffs


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




No Requirement of Damages


Plaintiff can recover without showing actual injury to the land.


INTENTIONAL TORTS -PRIMA FACIE CASE-INTENTIONAL TORTS TO PROPERTY - Trespass to Chattel

Elements of the prima facie case:


An act by defendant that interferes with plaintiff' s right of possession in a chattel;


Intent;) Causation; and


Damages.



Two Types of Interference


The interference may either be an intermeddling (i.e., directly damaging the chattel) or a dispossession (i.e., depriving plaintiff of his lawful right of possession of the chattel).



Damages


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

INTENTIONAL TORTS -PRIMA FACIE CASE-INTENTIONAL TORTS TO PROPERTY - Conversion
Elements of the prima facie case:

An act by defendant that interferes with plaintiff's right of possession in a chattel;




The interference is so serious that it warrants requiring defendant to pay the chattel's full value;




Intent; and




Causation.




Acts of Conversion


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




Seriousness of Interference


The longer the with holding period and the more extensive the use, the more likely it is to be conversion. A less serious interference is trespass to chattels.




Subject Matter of Conversion


Only tangible personal property and intangibles that have been reduced to physical form(e.g., a promissory note) are subject to conversion.




Potential Plaintiffs


Anyone with possession or the immediate right to possession of the chattel may maintain an action for conversion.




Remedies


Plaintiff may recover damages (fair market value at the time of conversion) or possession (replevin).

INTENTIONAL TORTS - DEFENSES TO INTENTIONAL TORTS - Consent
Plaintiff 's consent to defend ant's conduct is a defense, but the majority view is that one cannot consent to a criminal act. Any consent fact pattern raises two inquiries:



Was there a valid consent (e.g.. no fraud)?




Did the defendant stay within the boundaries of the consent (e.g., not use a gun in a boxing match)?




Express (Actual) Consent


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




Implied Consent


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.




Capacity Required


Individuals without capacity are deemed incapable of consent, e.g., incompetents, drunken persons, and very young children.




Exam Tip: This requirement of capacity differs from the rule for the intent element of intentional torts, where incapacity is no defense; i.e., everyone (even a young child) has the capacity to commit a tort, but not everyone has the capacity to consent to a tort.




Exceeding Consent Given


If defendant exceeds the scope of consent and does something substantially different, he may be liable.

INTENTIONAL TORTS - DEFENSES TO INTENTIONAL TORTS - Self-Defense, Defense of Others, and Defense of Property
When a question involves the defense of sel f, others, or property, ask the following three questions:



Is the privilege available? The tort must now be or about to be committed. Al ready committed torts do not qualify.




Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed?




Was a proper amount of force used?




Exam Tip: Keep your parties clear. In questions involving these defenses, the conduct of the defendant was prompted by the com.mission or apparent commission of a tort by the plaintiff. That tort is not at issue, however; the issue is whether the defendant's response itself constituted a tort against the plaintiff (usually battery, trespass to land, or trespass to chattels) or instead was privileged by one of these defenses.

INTENTIONAL TORTS - DEFENSES TO INTENTIONAL TORTS - Self-Defense, Defense of Others, and Defense of Property - Self-Defense
When a person reasonably believes that she is being or is about to b attacked, she may use such force as is reasonably necessary to protect against injury.



When Is Defense Available?


One need not attempt to escape, but the modern trend imposes a duty to retreat before using deadly force if this can be done safely, unless the actor is in her home.




Self-defense is generally not available to the initial aggressor.




Self-defense may extend to third-party injuries (caused while the actor was defending herself). An actor might be liable to a third person if she deliberately injured him in trying to protect herself.




Is Mistake Allowed?


A reasonable mistake as to the existence of the danger is allowed.




How Much Force May Be Used?


One may use only that force that reasonably appears to be necessary to prevent the harm (including deadly force). If more force than is reasonably necessary is used, the defense is lost.




INTENTIONAL TORTS - DEFENSES TO INTENTIONAL TORTS - Self-Defense, Defense of Others, and Defense of Property - Defense of Others

When Is Defense Available?

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



Is Mistake Allowed?


A reasonable mistake as to whether the other person is being attacked or has a light 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.

INTENTIONAL TORTS - DEFENSES TO INTENTIONAL TORTS - Self-Defense, Defense of Others, and Defense of Property - Defense of Property
When Is Defense Available?

One may use reasonable force to prevent the commission of a tort against her real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous. The 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 the tort is viewed as still being committed.




Exam Tip


Remember that this defense is not available against one with a privilege. Whenever an actor has a privilege to enter onto the land of another because of necessity.recapture of chattels, etc., that privilege will supersede the privilege of the land possessor to defend her property.




Is Mistake Allowed?


A reasonable mistake is allowed as to whet.her an intrusion has occurred or whether a request to desist is required. A mistake is not allowed as to whether the entrant has a privilege (e.g., necessity) that supersedes the defense of property right, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged (such as by refusing to say what the necessity is).




How Much Force May Be Used?


Reasonable force may be used. However, one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm.




Exam Tip: There is a common misperception that deadly force may be used to protect one's home. This is not strictly true. Many of the ''home defense"cases are really self-defense cases. Thus, deadly force can only be used when a person, not just property, is threatened.


INTENTIONAL TORTS - DEFENSES TO INTENTIONAL TORTS - Self-Defense, Defense of Others, and Defense of Property - Reentry onto Land
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.
INTENTIONAL TORTS - DEFENSES TO INTENTIONAL TORTS - Self-Defense, Defense of Others, and Defense of Property - Recapture of Chattels
The basic rule is the same as that for reentry of land at common law: When another's possession began lawfully (e.g., a conditional sale), one may use only peaceful means to recover the chattel. Force may be used to recapture a chattel only when in hot pursuit of one who has obtained possession wrongfully, e.g., by theft.



When Is Defense Available '?


Timely Demand Required


A timely demand to return the chattel is first required unless clearly futile or dangerous.




Recovery Only from Wrongdoer


The recapture may be only from a tortfeasor or some third person who knows or should know that the chattels were tortiously obtained. One may not use force to recapture chattels in the hands of an innocent party.




Entry onto Land to Remove Chattel


On Wrongdoer 's Land


When chattels are located on the land of the wrongdoer, the owner is privileged to enter onto the land and reclaim them at a reasonable time and in a reasonable manner, after first making a demand for their return.




On Land of Innocent Party


Similarly, when the chattels are on the land of an innocent party, the owner may enter and reclaim her chattel at a reasonable time and in a peaceful manner when the landowner has been given notice of the presence of the chattel and refuses to return it. (As noted above, the chattel owner's right of recapture supersedes the landowner's right to defend his property.) However, the chattel owner will be liable for any actual damage caused by the entry.




On Land Through Owner's Fault


If the chattels are on the land of another through the owner's fault (e.g., negligently letting cattle wander), there is no privilege to enter onto the land. They may be recovered only through legal process.




Is Mistake Allowed?


Generally, no mistake regarding defendant's right to recapture the chattels or enter onto the land is allowed. However, shopkeepers may have a privilege to detain for a reasonable period of time individuals whom 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 serious bodily harm, may be used to recapture chattels.

INTENTIONAL TORTS - DEFENSES TO INTENTIONAL TORTS - Privilege of Arrest
Depending on the facts, the actor may have a privilege to make an arrest of a third person.



Invasion of Land


The privilege of arrest carries with it the privilege to enter another's land for the purpose of effecting the arrest.




Subsequent Misconduct


Although the arrest itself may be privileged, the actor may still be liable for subsequent misconduct (e.g., failing to bring the arrested party before a magistrate, unduly detaining the party in jail).




Mistake


Misdemeanor


If the arrest is for a misdemeanor, it is privileged only if for a breach of peace and if the action takes place in front of defendant. (Most state statutes grant police officers a broader privilege.)




Felony


For a felony arrest, a police officer may make a reasonable mistake. Citizens may make a reasonable mistake regarding the identity of the felon, but not regarding whether the felony occurred.

INTENTIONAL TORTS - DEFENSES TO INTENTIONAL TORTS - Necessity
Necessity

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary to avoid threatened injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it. There are two types of necessity : (i) public-when the act is for the public good; and (ii) private-when the act is solely to benefit a limited number of people. Under private necessity, the actor must pay for any injury he causes (unless the act was to benefit the property owner).




Exam Tip


Necessity is a defense only to property torts.

INTENTIONAL TORTS - DEFENSES TO INTENTIONAL TORTS - Discipline
A parent or teacher may use reasonable force in disciplining children.
HARM TO ECONOMIC AND DIGNITARY INTERESTS - DEFAMATION
The Jaw of defamation is divided into two parts: the common law elements and the constitutional requirements.



The elements of common law defamation are:


Defamatory language;




"Of or concerning" the plaintiff;




Publication thereof by defendant to a third person; and




Damage to plaintiff's reputation.




If the defamation involves a matter of public concern, the Constitution requires the plaintiff to prove two additional elements :




Falsity of the defamatory language; and


Fault on the part of defendant.




Exam Tip: In a common law case, plaintiff does not have to prove falsity as part of the prima facie case. Rather, defendant can offer truth of the statement as a defense.

HARM TO ECONOMIC AND DIGNITARY INTERESTS - DEFAMATION - Defamatory Language
Defamatory language is defined as language tend ing to adversely affect one's reputation . A statement of opinion is actionable only if it appears to he based on specific facts, and an express allegation of those facts would be defamatory. Name-calling is insufficient.



Inducement and Innuendo


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




Living Person Requirement


Any living person may be defamed. Defamation of a deceased person is not actionable. In a limited sense, a corporation, unincorporated association, or partnership may be defamed (e.g., by remarks as to its financial condition, honesty, integrity, etc.).

HARM TO ECONOMIC AND DIGNITARY INTERESTS - DEFAMATION - Of or Concerning" Plaintiff
The plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff.



--Colloquium


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




Group Defamation


lf the 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 that the statement is "of and concerning" him (i.e., no one wins!).


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

HARM TO ECONOMIC AND DIGNITARY INTERESTS - DEFAMATION - Publication
Publication means communication of the defamation to someone other than the plai ntiff. Such publication can be made either intentionally or negligently. It is the intent to publish, not the intent to defame, that is the requisite intent. Each repetition is a separate publication. However, for magazi nes, newspapers, etc., most states have adopted a "single publication" rule under which all copies are treated as one publication.



Exam Tip: An exam favorite is the situation where a defamatory statement about plaintiff is made only to plaintiff As a general rule, there is no publication and thus no defamation.




Who May Be Liable?


Primary publishers (e.g., newspapers, TV stations, etc.) are liable to the same extent as the author or speaker. One who repeats a defamation is liable on the same general basis as the primary publisher (even if she states the source or makes it clear that she does not believe the defamation). One selling papers or playing tapes is a secondary publisher and is liable only if he knows or should know of the defamatory content.

HARM TO ECONOMIC AND DIGNITARY INTERESTS - DEFAMATION - Damage to Plaintiff's Reputation
The type of damages plai ntiff must prove depends on the type of defamation (libel or slander) involved. In some slander cases, plaintiff m.ust prove that she suffered special damages-that is, she must have suffered some pecuniary Joss in order to recover anything. But once plaintiff has proved specjal damages, she may recover general damages as well.



Libel


Libel is the written or printed publication of defamatory language. Plaintiff does not need to prove special damages and general damages are presumed. The minority position distinguishes between libel per se and libel per quod (not defamatory on its face).




Slander


Slander is spoken defamation. Plaintiff must prove special damages, unless defamation falls within slander per se categories; i.e., defamatory statements that:


Adversely reflect on one's conduct in a business or profession;




One has a loathsome disease;




One is or was guilty of a crime involving moral turpitude ; or




A woman is unchaste.




Radio and Television Broadcasts Are Libel


Radio and television programs are treated by most courts today as libel.

HARM TO ECONOMIC AND DIGNITARY INTERESTS - DEFAMATION - First Amendment Concerns
When the defamation involves a matter of public concern, plaintiff must prove, in addition to the common law elements:

Falsity of the statement, and


(ii) Fault on the part of defendant.




a. Falsity


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




Exam Tip: If a statement of public interest is true, plaintiff has no cause of action for defamation. However, if you see this type of statement on the exam, consider whether plaintiff may have a cause of action for intentional infliction of emotional distress or invasion of right to privacy (unless plaintiff is a public figure).

HARM TO ECONOMIC AND DIGNITARY INTERESTS - DEFAMATION - First Amendment Concerns - Fault on Defendant's Part
The type of fault that a plaintiff must prove depends on the plaintiff's status.



Public Official or Figure Must Prove Malice


Under the New York Times v. Sullivan rule, malice must be proved in defamation cases brought by public officials and public figures.




What Constitutes a Public Figure?


A person becomes a "public figure" by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy.




Definition of Malice


Malice (as defined by New York Times v. Sullivan) is:




Knowledge that the statement was false, or




Reckless disregard as to whether it was false.




This is a subjective test. Defendant 's spite or ill will is not enough to constitute malice. Deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quotation.




Private Persons Need Not Prove Malice


Under Gertz v. Welch, where a private person is the plaintiff, only negligence regarding the falsity must be proved if the statement involves a matter of "public concern ." (If not a matter of public concern, constitutional restrictions do not apply.) Where the defendant is negligent, only "actual injury" damages are recoverable. However, where malice is found, damages may be presumed, and punitive damages allowed.




Exam Tip: Note that the status of the plaintiff (public figure or private person) is relevant orily for the degree of fau)L required; the e)ement of falsity must beproved regardless of the status of the plaintiff as long as a matter of public concern is invol ved (and you should assu me that a matter of public concern is involved whenever the plaintiff is a public figure).

HARM TO ECONOMIC AND DIGNITARY INTERESTS - DEFAMATION - Defenses to Defamation
Consent

Consent is a complete defense. The rules relating to consent to intentional torts apply here.




Truth


Where plaintiff does not need to prove falsity (i.e., the statement is about a purely private matter), defendant may prove truth as a complete defense.




Exam Tip: Remember that falsity and fault are prima facie case elements only i n a constitutional defamation case. Plaintiff does not need to prove falsity in a common law defamation case because defamatory statements are presumed to be false; defendant has the burden to prove truth as a defense.




Absolute Privilege-Can Never Be Lost Defendant may be protected by an absolute privilege for the following: remarks made during judicial proceedings, by legislators during proceedings, by federal executive officials, in "compelled" broadcasts, and between spouses.




Qualified Privilege - Can Be Lost Through Abuse


Sometimes the speaker may have a qualified privilege for the following: reports of official proceedings; statements in the interest of the publisher-defense of one's actions, property, or reputation; statements in the interest of the recipient; and statements in the common interest of the publisher and recipient.




The qualified privilege may be lost jf (i) the statement is not within the scope of the privilege, or (ii) it is shown that the speaker acted with malice. Defendant bears the burden of proving that a privilege exists.




Mitigating Factors


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.

HARM TO ECONOMIC AND DIGNITARY INTERESTS - INVASION OF RIGHT TO PRIVACY - Four Branches
Four Branches

This tort includes four kinds of wrongs:




Appropriation of Plaintiff's Picture or Name


It is necessary to show unauthorized use of plaintiff 's picture or name for defendant's commercial advantage. Liability is generally limited to advertisements or promotions of products or services. Mere economic benefit to defendant (not in connection with promoting a product or service) by itself is not sufficient.




Intrusion on Plaintiff 's Affairs or Seclusion


The act of prying or intruding must be highly offensive to a reasonable person. Furthermore, the thing into which there is an intrusion must be "private." Photographs taken in public places are not actionable.




Publication of Facts Placing Plaintiff in False Light


''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 highly offensive to a reasonable person under the circumstances. For liability to attach, there must be publicity.




First Amendment Limitation


If the matter is in the public interest, malice on the defendant's part must be proved.




Public Disclosure of Private Facts About Plaintiff


This wrong involves public disclosure of private information about plaintiff (e.g., matters of public record are not sufficient). The public disclosure must be highly offen sive to a reasonable person of ordinary sensibilities. Liability may attach even though the actual statement is true. First Amendment limitation s probably apply if the matter is of legitimate public interest.

HARM TO ECONOMIC AND DIGNITARY INTERESTS - INVASION OF RIGHT TO PRIVACY - Causation
The invasion of plaintiff's interest in privacy (under any of the four kinds) must have been proximately caused by defendant's conduct.
HARM TO ECONOMIC AND DIGNITARY INTERESTS - INVASION OF RIGHT TO PRIVACY - Proof of Special Damages Unnecessary
Plaintiff need not plead and prove special damages. Emotional clistress and mental anguish are sufficient damages.
HARM TO ECONOMIC AND DIGNITARY INTERESTS - INVASION OF RIGHT TO PRIVACY - Defenses
Some defenses to the right of privacy actions are consent and the defamation pri vilege defenses. Truth generally is not a good defense; nor is inadvertence, good faith, or lack of malice.
HARM TO ECONOMIC AND DIGNITARY INTERESTS - INVASION OF RIGHT TO PRIVACY - Right of Privacy-Miscellaneous
The right of privacy is a personal right and does not extend to members of a family, does not survive the death of the plaintjff, and is not assignable. The right of privacy is not applicable to corporations.
HARM TO ECONOMIC AND DIGNITARY INTERESTS - MISREPRESENTATION - Intentional Misrepresentation (Fraud, Deceit)
Prima facie case:



Misrepresentation of a material fact (no duty to disclose and opinion not actionable unless rendered by someone with superior skill in the area). Silence is generally not enough; one must make affirmative misrepresentations;




Scienter, i.e., when defendant made the statement, she knew or believed it was false or that there was no basis for the statement;




Intent to induce plaintiff to act or refrain from acting in reliance upon the misrepresentation;




Causation (actual reliance);




Justifiable reliance (generally, reliance is justifiable only as to a statement of fact, not opinion); and




Damages (plaintiff must suffer actual pecuniary loss).




There are no defenses to intentional misrepresentation





HARM TO ECONOMIC AND DIGNITARY INTERESTS - MISREPRESENTATION - Negligent Misrepresentation - Prima facie case:

Prima facie case:



Misrepresentation by defendant in a business or professional capacity;



Breach of duty toward a particular plaintiff;




Causation,




Justifiable reliance; and




Damages.




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

HARM TO ECONOMIC AND DIGNITARY INTERESTS - INTERFERENCE WITH BUSINESS RELATIONS -
Prima facie case:

(i) existence of a valid contractual relationship between plaintiff and a third party or valid business expectancy of plaintiff; (ii) defendant's knowledge of the relationship or expectancy ; (iii) intentional interference by defendant inducing a breach or termination of the relationship or expectancy; and (iv) damages.




Privileges


Defendant's conduct may be privileged where it is a proper attempt to obtain business for itself or protect its interests. A privilege is more likely to be found if defendant: (i) interfered only with plaintiff s prospective business rather than with existing contracts; (ii) used commercially acceptable means of persuasion rather than illegal or threatening tactics; (iii) is a competitor of plaintiff seeking the same prospective customers; or (iv) has a financial interest in or responsibility for the third party, or is responding to the third party's request for business advice.

HARM TO ECONOMIC AND DIGNITARY INTERESTS - WRONGFUL INSTITUTION OF LEGAL PROCEEDINGS - Malicious Prosecution
Prima facie case: (i) institution of criminal proceedings against plaintiff (e.g., filing a complaint with the police); (ii) termination inplaintiff's favor ; (iii) absence of probable cause for prior proceedings (insufficient facts for a reasonable person to believe that plaintiff was guilty, or defendant, in fact, did not actually believe plaintiff to be guilty); (iv) improper purpose (i.e., something other than bringing a person to justice); and (v) damages. Prosecu tors are immune from liability.



Wrongful Civil Proceedings


Most jurisdiction s have extended the malicious prosecution action to cover civil cases.

HARM TO ECONOMIC AND DIGNITARY INTERESTS - WRONGFUL INSTITUTION OF LEGAL PROCEEDINGS - Abuse of Process
Prima facie case: (i) wrongful use of process for an ulterior purpose, and (ii) definite act or threat against plaintiff in order to accomplish an ulterior purpose.
NEGLIGENCE - PRIMA FACIE CASE
Elements of the prima facie case:



A duty on the part of defendant to conform to a specific standard of conduct for protection of plaintiff against an unreasonable risk of injury;




A breach of that duty by defendant;




The breach is the actual and proximate cause of plaintiff's injury; and




Damage.

NEGLIGENCE - DUTY OF CARE
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:



Was the plaintiff foreseeable?




If so, what is the applicable standard of care?

NEGLIGENCE - DUTY OF CARE - Foreseeable/Unforeseeable Plaintiffs

A duty of care is owed only to foreseeable plaintiffs. However, a problem arises where defendant breaches a duty to one plaintiff ("Pl'') and also causes injury to another (possibly unforeseeable) plaintiff ("P2"). There are two possible outcomes:




Cardozo View (Majority)-Foreseeable Zone of Danger


P2 can recover only 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 i n the foreseeable zone of danger.




Andrews View (Minority)-Everyone Is Foreseeable P2 may establish the existence of a duty extending from defendant to her by a showing that defendant has breached a duty owed to Pl.



NEGLIGENCE - DUTY OF CARE - Specific Situations
Rescuers

A rescuer is a foreseeable plaintiff where defendant negligently put himself or a third person in peril (i.e., danger invites rescue). However, firefighters and police officers may be barred by the firefighter's rule" from recovering for injuries caused by the risks of a rescue.




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, the child may not recoverfor ''wrongful life," but the parents may recover damagi:s in a "wrongful birth" or' wrongful pregnancy" action for any additional medical expenses and tor pain and suffering from labor; ordinary child-rearing expenses, however, cannot be recovered.




Intended Beneficiaries of Economic Transactions


A third party for whose economic benefit a legal or business transaction was made (e.g.,a beneficiary of a will) may be a foreseeable plaintiff.

NEGLIGENCE - DUTY OF CARE - Standards of Care - Basic Standard - The Reasonable Person
The reasonable person standard is an ojective standard , i.e., one's conduct measured against what the average person would do. A defendant 's mental deficiencies and inexperience are not taken into accou nt (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)
NEGLIGENCE - DUTY OF CARE - Standards of Care - Particular Standards of Conduct
Professionals

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. Medical specialists will be held to a national standard of care.


Duty to Disclose Risks of Treatment


A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent. A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld consent on learning of the risk.




2) Children


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.




Common Carriers and Innkeepers


Common carriers and innkeepers are held Lo a very high degree of care; i.e., they are liable for slight negligence.




Exam Tip: For the higher common carrier and innkeeper standards to apply, the plaintiff must be a passenger or guest.




Automobile Driver to Guest


A guest in an automobile is owed a duty of ordinary care. In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.




Bailment Duties


In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not title (e.g., bailor loans her car to the bailee).


Duties Owed by Bailee


The bailee's standard of care depends on who benefits from the bailment (i) for a sole benefit of the bailor bailment, there is a low standard of care;(ii) for a sole benefit of the bailee bailment, there is a high standard of care;and (iii) for a mutual benefit bailment (typically a bailment for hire), there is the ordinary care standard. The modern trend applies a duty of ordinary care under the circumstances, whereby the type of bailment is just one factor taken into account.




Duties Owed by Bailor


For a sole benefit of the bailee bailment, the bailor must inform the bailee of known, dangerous defects in the chattel. For a bailment for hire, the bailor must inform the bailee of chattel defects of which he is or should be aware.




Emergency Situations


A 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.



NEGLIGENCE - DUTY OF CARE - Standards of Care - Owners and/or Occupiers of Land
The extent of the liability of owners and/or occupiers of land (and those in privity with the owner/occupiyr) depends on where the injury occurred and on the status of the plaintiff.
NEGLIGENCE - DUTY OF CARE -Standards of Care - Owners and/or Occupiers of Land - Duty of Possessor to Those Off Premises
There is no duty to protect one off the premises from natural conditions on the premises; however, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land. Also, one must carry on activities on property so as to avoid unreasonable risk of harm Lo others outside the property.



Exam Tip: In urban areas, the owner/occupier is liable for damage caused off the premises by trees on the premises (e.g., falling branches). This has been an exam favorite in recent years.

NEGLIGENCE - DUTY OF CARE -Standards of Care - Owners and/or Occupiers of Land - Duty of Possessor to Those On Premises
In most states the duty owed a plaintiff on the premises for dangerous conditions on the land depends on the plaintiff 's status as trespasser, licensee, or invitee.
NEGLIGENCE - DUTY OF CARE -Standards of Care - Owners and/or Occupiers of Land - Duty of Possessor to Those On Premises - Trespassers
No duty is owed to an undiscovered trespasser. As to discovered or antici pated trespassers, the landowner must : (i) warn of or make safe concealed, unsafe, artificial conditions knowll to the landowner involving risk of death or serious bodily harm, and (ii) use reasonable care in the exercise of "active operations'' on the property.(No duty is owed for natural conditions or less dangerous artificial conditions .) Easement and license holders owe a duty of reasonable care to trespassers.




NEGLIGENCE - DUTY OF CARE -Standards of Care - Owners and/or Occupiers of Land - Duty of Possessor to Those On Premises - Attractive Nuisance Doctrine
Attractive Nuisance Doctrine

Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. To establish the doctrine's applicability, plain tiff must show: (i) a dangerous condition on the land that the owner is or should be aware of, (ii) the owner knows or should know children frequent the vicinity of the condition, (iii) the condition is likely to cause injury, i.e., dangerous because of child's inability to appreciate the risk, and (iv) lhe expense of remedying the situation is slight compared with the magnitude of the risk.




Exam Tip: For liability to attach, the four requirements above must be shown. The child does not have to be attracted onto the land by the dangerous condition, nor is the attraction alone enough for liability

NEGLIGENCE - DUTY OF CARE -Standards of Care - Owners and/or Occupiers of Land - Duty of Possessor to Those On Premises - Duty Owed to Licensees
A licensee is one who enters onto the land with the possessor's permission for her own purpose or business, rather than for the possessor's benefit. The possessor has a duty to (i) warn of dangerous conditions (natural or artificial) known to the owner that create an unreasonable risk of harm to the licensee and thal the licensee is unlikely to discover, and (ii) exercise reasonable care in the cond uct of ''active operations" on the properly. The possessor has no duty to inspect or repair. (Remember: Social guests are considered licensees.)
NEGLIGENCE - DUTY OF CARE -Standards of Care - Owners and/or Occupiers of Land - Duty of Possessor to Those On Premises - Duty Owed to Invitees
Invitees enter onto the land inresponse to an invitation by the 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 ]and is heldopen to thepublic ). The landowner or occupier owes the same duties owed to licenses a duty to make reasonable inspections to discover nonobvious dangerous d, thereafter, ma1te fhem safe. One will lose invitee status if she exceeds the scope of the invitation.
NEGLIGENCE - DUTY OF CARE -Standards of Care - Owners and/or Occupiers of Land - Duty of Possessor to Those On Premises - Duty Owed to Users of Recreational Land
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 the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.
NEGLIGENCE - DUTY OF CARE -Standards of Care - Owners and/or Occupiers of Land - Duty of Possessor to Those On Premises - Modern Trend Rejects Status Rules
A strong minority of states reject the distinction between licensees and invitees (and, in a few states, trespassers as well), and simply apply a reasonable person standard to dangerous conditions on the land.
NEGLIGENCE - DUTY OF CARE -Standards of Care - Owners and/or Occupiers of Land - Duties of Lessor and Lessee of Realty
The lessee has a general duty to maintain the premises. The lessor must warn if existing defects of which he is aware or has reason to know, and which he knows the lessee is not likely to discover on a reasonable inspection. If the lessor covenants to repair, he is liable for unreasonably dangerous conditions. If the lessor volunteers to repair and does so negligently, he is liable.



Exam Tip - If the guest of a tenant is injured , the landlord may be liable as lessor of the premises. But don't stop there-remember that the tenant may also be liable to the guest because of the tenant's status as the owner/occupier of the premises.

NEGLIGENCE - DUTY OF CARE -Standards of Care - Owners and/or Occupiers of Land - Duties of Vendor of Realty
A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to k now, and which he knows the vendee is not likely to discover on a reasonable inspection.
NEGLIGENCE - DUTY OF CARE -Standards of Care - Statutory Standards of Care
A statute's specific duty may replace the more general common law duty of due care if: (i) the statute provides for a criminal penalty, (ii) the statute clearly defines the standard of conduct, (iii) plaintiff is within the protected class, and (iv) the statute was designed to prevent the type of harm suffered by plaintiff.
1) Excuse for ViolationViolation of some statutes may be excused where compliance would cause more danger than violation or where compliance would be beyond defendant's control.
2) Effect of Violation or ComplianceUnder the majority view, an unexcused statutory violation is negligence per se; i.e., it establishes the first two requirements in the prima facie case-a conclusive presumption of duty and breach of duty. In contrast, even though violation of the applicable statute may be negligence, compliance with the statute will not necessarily establish due care.
NEGLIGENCE - DUTY OF CARE - Duty Regarding Negligent Infliction of Emotional Distress
The duty to avoid negligent infliction of emotional distress may be breached when the defen dant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail: (i) the plaintiff must be within the "zone of danger"; and(ii) the plaintiff must suffer physical symptoms from the distress .
NEGLIGENCE - DUTY OF CARE - Duty Regarding Negligent Infliction of Emotional Distress - Plaintiff Must Be Within the ''Zone of Danger"
The plaintiff usually must show that her distress has been caused by a threat of physical impact.
NEGLIGENCE - DUTY OF CARE - Duty Regarding Negligent Infliction of Emotional Distress - Plaintiff Must Suffer Physical Symptoms from the Distress
Most courts usually require that the defendant's conduct cause the plaintiff emotional distress that manifests itself in physical symptoms (note that severe shock to the nervous system that causes physical symptoms will satisfy this requirement).
NEGLIGENCE - DUTY OF CARE - Duty Regarding Negligent Infliction of Emotional Distress - Special Situations Where Requirements Not Always Necessary - Bystander Not in Zone of Danger Seeing Injury to Another
A bystander outside the "zone of danger" of physical injury who sees the defendant negligently injuring another can recover damages for her own distress as long as the plaintiff and the person injured by the defendant are closely related , (ii) the plaintiff was present at the scene of the injury, and (iii) the plaintiff personally observed or perceived the event.
NEGLIGENCE - DUTY OF CARE - Duty Regarding Negligent Infliction of Emotional Distress - Special Situations Where Requirements Not Always Necessary - Special Relationship Between Plaintiff and Defendant
The defendant may be liable for directly causing the plaintiff severe emotional distress that leads to physical symptoms when a duty arises from the relationship between the plaintiff and the defendant, such that the defendant's negligence has great potential to cause emotional distress (e.g.• doctor's misdiagnosis that patient has terminal illness).
NEGLIGENCE - DUTY OF CARE - Duty Regarding Negligent Infliction of Emotional Distress - Special Situations Where Requirements Not Always Necessary - Other Situations
The plaintiff may be able to recover without proving the two requirements where the defendant's negligence creates a great likelihood of emotional distress (e.g., erroneous report of a relative's death or mishandling of a relative's corpse).



Exam Tip: Keep in mind that the torts for infliction of emotional distress are not the only means of recovering damages for emotional distress. If physical injury has been caused by commission of a tort, plaintiff can "tack on" damages for emotional distress as a ''parasitic"element of his physical injury damages, without the need to consider the elements of the emotional distress torts.

NEGLIGENCE - DUTY OF CARE - Affirmative Duties to Act
Generally, one does not have a legal duty to act. Exceptions to this rule exist, however:



a. Assumption of Duty by Acting


One may assume a duty to act by acting (e.g., once defendant undertakes to aid someone, he must do so with reasonable care).




Exception: Many states have enacted Good Samaritan statutes, which exempt doctors, nurses, etc., from liability for ordinary, but not gross, negligence.




Peril Due to Defendant's Conduct


One has a duty to assist someone he has negligently or innocently placed in peril.




Special Relationship Between Parties


A special relationship between the parties (e.g.. parent-child) may create 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. In addition, places of public accommodation have a duty to prevent injury to guests by third persons.




Duty to Control Third Persons


Generally, there is no duty to prevent a third person from injuring another. An affirmative duty may be imposed, however, if one has the actual ability and authority to control a person's actions, and knows or should know the person is likely to commit acts that would require exercise of this control..

NEGLIGENCE - BREACH OF DUTY
Where defendant's conduct falls short of that level required by the applicable standard of care owed to the plaintiff, she has breached her duty. Whether the duty of care is breached i n an individual case is a question for the tTier of fact. The main problem relates to proof of the breach. Plaintiff may use one of the following theories:
NEGLIGENCE - BREACH OF DUTY - Custom or Usage
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 i n an industry, a court may find that the entire industry is acting negligently.
NEGLIGENCE - BREACH OF DUTY - Violation of Statute
Existence of a duty owed to plaintiff and breach thereof may be established as a matter of law by proof that defendant violated an applicable statute ("negligence per se"). Causation and damages must still be established by plaintiff.
NEGLIGENCE - BREACH OF DUTY - Res Ipsa Loquitur
In some cases, the very occurrence of an event may tend to establish a breach of duty. The doctrine of res ipsa loquitur requires plaintiff to show that (i) the accident causing the injury is a type that would not normally occur unless someone was negligent, and (ii) the negligence is attributable to defendant (i.e., this type of accident ordinarily happens because of the negligence of someone in defendant's position) . This can often be shown by evidence that the instrumentality causing the injury was i n the exclusive control of defendant. (Plaintiff must also establish freedom from fault on his part.)



Effect of Res lpsa Loquitur


Where res ipsa loquitur is established, plaintiff has made a prima facie case and no directed verdict may be given for defendant. Plaintiff can still lose, however, if the inference of negligence is rejected by the trier of fact.




Exam Tip: Questions testing on res ipsa loquitur often have the defendant making a motion for a directed verdict. These questions don't require you to memorize rules of civil procedure-all you need to remember is the following:




Deny defendant's motion for directed verdict if plaintiff has established res ipsa Joquitur or presented some other evidence of breach of duty (such as defendant's violation of a statute);




Grant defendant's motion if plaintiff has failed to establish res ipsa loquitur and failed to present some other evidence of breach of duty.




Occasionally, plaintiff may also move for a directed verdict. Plaintiff's motion should always be denied except i n the rare case where plaintiff has established negligence per se through violation of an applicable statute and there are no issues of proximate cause.

NEGLIGENCE - CAUSATION
Once negligent conduct is shown (a breach of the standard of care owed a foreseeable plaintiff), plaintiff must show that the conduct was the cause of his injury. For liability to attach, plaintiff must show both actual cause and proximate cause.
NEGLIGENCE - CAUSATION - Actual Cause (Causation in Fact)
Before defendant's conduct can be considered a proximate cause of plaintiff 's injury, it must first be a cause in fact of the injury. Several tests exist:'



'But For"Test


Act or omission is the cause i n fact of an injury when the injury would not have occurred but for the act. This test applies where several acts (each insufficient to cause the injury alone) combine to cause the injury.




Joint Causes-Substantial Factor Test


Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, defendant's conduct i s the cause in fact if it was a substantial factor ln causing the injury.




Alternative Causes Approach


This test applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negligence is not the actual cause. [Summers v. Tice]




Exam Tip: Distinguish these last two tests: Under the joint causes approach , both parties caused the harm. Under the alternative causes approach, although both parties acted negligently, only one caused the harm.

NEGLIGENCE - CAUSATION - Proximate Cause (Legal Causation)
In addition to being a cause in fact, the defendant's conduct must also be the proximate c.use of the injury. Even though the conduct actually caused plaintiff 's injury, it might not be deemed to be the proximate cause. Thus, the doctrine of proximate causation is a limitation of liability and deals with liability or non liability for unforeseeable or unusual consequences of one's acts.
NEGLIGENCE - CAUSATION - Proximate Cause (Legal Causation) - General Rule··-Scope of Foreseeable Risk
A defendan t generally is liable for all harrniul results that are the normal incidents ofand within the increased risk cau sed by his acts. This is a foreseeability test.



Exam Tip: Questions raising proximate cause issues will not require you to make a judgment call on foreseeability in a close case. Often the call of the question will be whether one or both parties are entitled to summary judgment- which should be denied if there is any issue of foreseeability for the jury. In other cases, the facts in the question will be so clear-cut that common sense will tell you immediately whether the harm that occurred was foreseeable.

NEGLIGENCE - CAUSATION - Proximate Cause (Legal Causation) - Liability in Direct Cause Cases
In a direct cause case, where there is an uninterrupted chain of events from the negli gent act to plaintiff 's injury, defendant is liable for aII 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 harmf ul results will be deemed foreseeable in direct cause cases.
NEGLIGENCE - CAUSATION - Proximate Cause (Legal Causation) - Liability in Indirect Cause Cases
In an indirect cause case, an affirmative i ntervening force (e.g., an act by a thi rd person, an act of God) comes into motion after defendant's negligent act and combines with it to cause plaintiff 's injury.
NEGLIGENCE - CAUSATION - Proximate Cause (Legal Causation) - Liability in Indirect Cause Cases - Foreseeable Results Caused by Foreseeable Intervening Forces-Defendant Liable
Defendant is liable where his negligence caused a foreseeable harmful response or reaction from a dependent intervening force or created a foreseeable risk that an independent intervening force would harm plaintiff.



Common Dependent Intervening Forces


The following dependent intervening forces are almost always foreseeable:subsequent medical malpractice, (ii) negligence of rescuers, (iii) efforts to protect the person or property of oneself or another, (iv) injuries caused by another "reacting" to defendant's actions, (v) subsequent diseases caused by a weakened condition, and (iv) subsequent accident substantially caused by the original injury.




Independent Intervening Forces


Independent intervening forces that are not a natural response or reaction to the situation created by the defendant's conduct may be foreseeable if defendant's negligence increased the risk of harm from these forces. Independent intervening forces include (i) negligent acts of third persons, (ii) crimes and intentional torts of third persons, and (iii) acts of God.

NEGLIGENCE - CAUSATION - Proximate Cause (Legal Causation) - Liability in Indirect Cause Cases - Foreseeable Results Caused by Unforeseeable Intervening Forces Defendant Usually Liable
Defendant is liable where his negligence increased the risk of a foreseeable harmful result and that result is ultimately produced by an unforeseeable intervening force. This rule does not apply where the unforeseeable intervening force was a crime or intentional tort of a third person.



NEGLIGENCE - CAUSATION - Proximate Cause (Legal Causation) - Liability in Indirect Cause Cases - Unforeseeable Results Caused by Foreseeable Intervening Forces Defendant Not Liable
In the rare case where a totally unforeseeable result was caused by a foreseeable intervening force, most courts hold defendant not liable.
NEGLIGENCE - CAUSATION - Proximate Cause (Legal Causation) - Liability in Indirect Cause Cases - Unforeseeable Results Caused by Unforeseeable Intervening Forces Defendant Not Liable
Intervening forces that produce unforeseeable results (results not within the increased risk created by defendant's negligence) are generally deemed unforeseeable and superseding. Superseding forces break the causal connection between defendant's initial negligent act and plaintiff's ultimate injury, thus relieving defendant of liability.
NEGLIGENCE - CAUSATION - Proximate Cause (Legal Causation) - Liability in Indirect Cause Cases - Unforeseeable Extent or Severity of Harm-Defendant Liable
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.
NEGLIGENCE - DAMAGES
Damage is an essential element of negligence; thus, damage wiII not be presumed (and nominal damages are not available).



Personal Injury


Plaintiff is to be compensated for all his damages (past, present, and prospective), both economic damages (such as medical expenses) and noneconomic damages (such as pain and suffering) . Foreseeability of the extent of harm is generally irrelevant; i.e., one takes one's plaintiff as one finds him. A plaintiff suffering physical injury also may recover damages for any resulting emotional distress.




Property Damage


The measure of damage is the reasonable cost of repair or, if the properly is nearly destroyed, the fair market value at the time of the accident.




Punitive Damages


Plaintiff may recover punitive damages jf defendant's conducL is "wanton and willful," reckless, or malicious.




Nonrecoverable Items


Nonrecoverable items include: (i) interest from the date of damage in a personal i njury action, and (ii) attorneys' foes.




Duty to Mitigate


As in all cases, plaintiff has a duty to take reasonable steps to mitigate damages (e.g., seek appropriate treatment).




Collateral Source Rule


Damages are not reduced just because plaintiff received benefits from other sources ( e.g.,health insurance).


NEGLIGENCE - DEFENSES TO NEGLIGENCE - Contributory Negligence
Contributory negligence is negligence on the part of the plaintiff that contributes to her injuries. The standard of care for contributory negligence is the same as for ordinary negligence. Hence, a rescuer will not be deemed contributorily negligent without taking into account the emergency situation. Also, plaintiff's violation of an applicable statute may be used to establish his contributory negligence.



A Defense to Defendant's Violation of Statute


Contributory negligence is a defense to negligence proved by defendant's violation of an applicable statute unless the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment (e.g., child injured after darting into street i n school zone and getting hit by speeding car of defend ant).




No Defense to Intentional Torts


Contributory negligence is not a defense to wanton and willful misconduct or intentional tortious conduct.




Effect of Contributory Negligence


Contributory negligence completely barred plaintiff's right to recovery at common law. Almost all jurisdictions now favor a comparative negligence system.




Last Clear Chance-An Exception to Contributory Negligence


Last clear chance permits plaintiff to recover despite her contributory negligence. Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. (Last clear chance is essentially plaintiff's rebuttal to the defense of co negligence.)




Helpless Peril


In many states, where the plaintiff is in ''helpless peril," defendant will be liable if he knew or should have known of plaintiff 's predicament.




Inattentive Peril


In "inattentive peril" situations (i.e., plaintiff could have extricated herself if attentive), defendant must actually have known of plaintiff 's predicament.




Prior Negligence Cases


For the last clear chance doctrine to apply, defendant must have been able, but failed, to avoid harming plaintiff at the time of the accident. If defendant's only negligence occurred earlier, the doctrine will not apply.




Imputed Contributory Negligence


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





NEGLIGENCE - DEFENSES TO NEGLIGENCE - Assumption of Risk
Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant's act. Plaintiff must have (i) known of the risk and (ii) voluntarily proceeded in the face of the risk.



Implied Assumption of Risk


Knowledge may be implied where the risk is one that an average person would clearly appreciate. Plaintiff may not be said to have assumed the risk where there is no avail able alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency. Also: 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.




Express Assumption of Risk


The risk may be assumed by an express agreement.




No Defense to Intentional Torts


Assumption of risk is not a defense to intentional torts, but it is a defense to wanton and willful misconduct.

NEGLIGENCE - DEFENSES TO NEGLIGENCE - Comparative Negligence
In comparative negligence states, plaintiff's contributory negligence is not a complete bar to recovery. Rather, the trier of fact weighs plaintiff's negligence and reduces damages accordingly (e.g.• if plaintiff is 10% at fault, her damages are reduced by 10%). A majority of states have adopted partial comparative negligence, which still bars plaintiff's recovery if his negligence was more serious than defendant's negligence (or in some states at least as serious as defendant's). States that have adopted pure comparative negligence allow recovery no matter how great plaintiff's negligence.



Exam Tip: On the MBE, assume that pure comparative negligence applies unless the question states otherwise.




Effect on Other Doctrines


Last clear chance is not used in comparative negligence jurisdictions. Most comparative negligence jurisdictions have abolished the defense of implied assumption of risk but have retained the defense of 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.

LIABILITY WITHOUT FAULT (STRICT LIABILITY) PRIMA FACIE CASE -
For strict liability, the following elements must be shown : (i) the nature of the defendant's activity imposes an absolute duty to make safe; (ii) the dangerous aspect of the activity was the actual ,· and proximate cause of the plaintiff's injury; and (iii) the plaintiff suffered damage to person or property.
LIABILITY WITHOUT FAULT (STRICT LIABILITY) - LIABILITY FOR ANIMALS
I. Trespassing Animals

An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.




Personal Injuries


Strict Liability for Wild Animals


An owner is strictly liable to licensees and invitees for injuries caused by wild animals as long as the injured person did nothing to bring about the injury.




No Strict Liability for Domestic Animals


An owner is not strictly liable for injuries caused by domestic animals unless he has knowledge of that particular animal's dangerous propensities that are not common to the species.




Strict Liability Not Available to Trespassers


Strict liability will generally not be imposed in favor of trespassers in the absence of the owner's negligence. However, a landowner may be liable on intentional tort grounds for injuries inflicted by vicious watchdogs.

LIABILITY WITHOUT FAULT (STRICT LIABILITY) - LIABILITY FOR ANIMALS - ABNORMALLY DANGEROUS ACTIVITIES
Courts generally impose two requirements for finding an activity to be abnormally dangerous: (i) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (ii) the activity is not a matter of common usage in the community.



Exam Tip: Exam questions testing on strict liability often include a statement in the facts or in an answer choice that the defendant exercised reasonable care. Remember that no amount of reasonable care on the part of the defendant will relieve him of liability in a strict liability situation.

LIABILITY WITHOUT FAULT (STRICT LIABILITY) - LIABILITY FOR ANIMALS - EXTENT OF LIABILITY
Scope of Duty Owed

The 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.




Defenses


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 abnormally dangerous activity miscarrying. Assumption of the risk is a good defense to strict liability. Most comparative negligence states apply their comparative negligence rules to strict liability cases.

PRODUCTS LIABILITY - BASIC PRINCIPLES
Products liability refers to the liability of a supplier of a detective product to someone injured by the product.
PRODUCTS LIABILITY - BASIC PRINCIPLES - Theories of Liability
There are five theories of liability that plaintiff may use: (i) intent, (ii ) negligence, (iii) strict liability, (iv) implied warranties of merchantability and fitness for a particular purpose, and (v) representation theories (express warranty and misrepresentation)



Exam Tip: If the question does not indicate what theory of liability plaintiff is using, apply a strict liability theory because that is the easiest to prove.

PRODUCTS LIABILITY - BASIC PRINCIPLES - Common Elements
To find liability under any products liability theory, plaintiff must show: (i) a defect, and (ii)existence of the defect when the product left defendant's control.
PRODUCTS LIABILITY - BASIC PRINCIPLES - Common Elements - Types of Defects
Manufacturing Defects

If a product emerges from manufacturing different and more dangerous than the products made properly, it has a manufacturing defect.




Design Defects


When all products of a line are the same but have dangerous propensities, they may be found to have a design defect.




Inadequate Warnings


A product may be defective as a result of the manufacturer's failure to give adequate warnings as to the risks involved in using the product that may not be apparent to users. For prescription drugs and medical devices, warnings given to "learned intermediaries" (e.g., the prescribing physician) will usually suffice in lieu of warnings to the patient.

PRODUCTS LIABILITY - BASIC PRINCIPLES - Common Elements - Proving a Defect
Manufacturing Defects

For a manufacturing defect, 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). This test also applies to defective food products.




Design Defects


For a design defect, plaintiff usually must show that the defend ant could have made the product safer, without serious impact on the product's price or utility.




Government Safety Standards


A product's noncompliance with government safety standards establishes that it is defective, while compliance with safety standards (including labeling requirements) is evidence-but not conclusive-that the product is not defective.




Scientifically Unknowable Risks


Defendant will not be held liable for dangers not foreseeable at the 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.

PRODUCTS LIABILITY - BASIC PRINCIPLES - Common Elements - Existence of Defect When Product Left Defendant's Control
The defect must have existed when the product left defendant's control. This will be Inferred if the product moved through normal channels of distribution.



Exam Tip: In virtually all products liability actions, the fact that there was no contractual privily between the plaintiff and defendant will not prevent plaintiff from recovering. Nevertheless, it is still a favorite wrong choice in products liability exam questions based on negligence or strict liability theories. Remember that any foreseeable plaintiff including a bystander, can sue any commercial supplier in the chain of distribution regardless of the absence of a contractual relationship between them.

PRODUCTS LIABILITY - LIABILITY BASED ON INTENT
Defendant will be liable to anyone injured by an unsafe product if defendant intended the consequences or knew that they were substantially certain to occur. Products liability actions based on intent are not very common. If intent is present, the most likely tort is battery.



Who Can Sue?


Privity is not required, so any injured plaintiff can sue.




Damages


In addition to compensatory damages, punitive damages are available.




Defenses


The defenses are those available in other intentional torts cases.

PRODUCTS LIABILITY - LIABILITY BASED ON NEGLIGENCE
The prima facie case i s the same as in any negligence case. Plaintiff must show (i) duty, (ii) breach, (iii) actual and proximate cause, and (iv) damages.



Duty of Care


A duty of care is owed to any foreseeable plaintiff.




Who Can Sue


Privity with the defendant is no longer required. so any foreseeable plaintiff can sue. This includes:


Users;


Consumers; and


Bystanders.




Who Can Be Held Liable?


Commercial suppliers such as manufacturers, wholesalers, and retailers can be held liable.




Breach of Duty


Breach of duty is shown by (i) negligent conduct of defendant leading to (ii) the supplying of a defective product (as defined above).




Proof of Negligence


Negligence is proved the same as in a "standard" negligence case. The plaintiff may invoke res ipsa loquitur.




Liability of Retailers and Wholesalers


It is very difficult to hold retailers and wholesalers liable for negligence because they can usually satisfy their duty through a cursory inspection.




Causation


A n intermediary's (e.g., wholesaler's) negligent failure to discover a defect docs not supersede the original manufacturer's negligence unless the intermediary 's conduct exceeds ordinary foreseeable negligence.




Nature of Damages Recoverable


Physical injury or property damage must be shown. (Recovery will be denied if the sole claim is for economic loss.)




Defenses


The defenses are the same as in a general negligence action.

PRODUCTS LIABILITY - LIABILITY BASED ON STRICT TORT LIABILITY
The prima facie case: (i) a strict duty owed by a commercial supplier of a product; (ij) production or sale of a defective prod uct; (iii) actual and proximate cause; and (iv) damages.



Duty


Defendant has a duty to supply safe products.




Who Can Sue?


Privily is not required-users, consumers, and bystanders can sue.




No Substantial Alteration


For liability to attach, the product must reach plaintiff without substantial alteration.




Does Not Extend to Services


Strict products liability applies only to products. Even where a product is provided incident to a service (e.g., blood during an operation), there is no strict liability.Plaintiff may, however, sue in negligence.




Who Can Be Held Liable?


Any commercial supplier can be held liable. Casual sellers will not be held strictly liable.




Production or Sale of Defective Product


Plaintiff must show that the product is defective (see A.2., supra) . The defect must make the product dangerous beyond the expectation of the ordinary consumer. Retailers may he liable even if they have no opportunity to inspect the product.




Causation


For actual cause, plaintiff must show that the defect existed when the product left defendant's control. If the defect is difficult to trace, plaintiff may be able to rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect.


Proximate cause is the same as in negligence cases.




Nature of Damages Recoverable


Physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic loss.




Defenses


In contributory negligence states, ordinary contributory negligence is no defense where plaintiff merely failed to discover the defect or guard against its existence, or where plaintiff's misuse was reasonably foreseeable. Assumption of the risk is a defense. In most comparative negligence states, courts will apply their comparative negligence rules.




Disclaimers Ineffective


Disclaimers are irrelevant in negligence or strict liability cases if personal injury or property damages occur.

PRODUCTS LIABILITY - IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
There are two warranties implied in every sale of goods that can serve as the basis for a suit by a buyer against a seller:



Merchantability, which refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used; and




Fitness for a particular purpose, which arises when the seller knows or has reason to 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.

PRODUCTS LIABILITY - IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS
Who Can Sue?

Most courts no longer require vertical privity. Most states adopted a narrow version of the horizontal privity requirement. This means the buyer, family, household , and guests can sue for personal injuries.




Bailee and Lessee


These warranties extend to bailments and leases as well as sales.




What Constitutes Breach?


If the product fails to live up to either of the above standards, the warranty is breached and the defendant will be liable.




Proof of Fault Unnecessary


Plaintiff does not have to prove any fault on the part of defendant.




Causation


Actual cause and proximate cause are handled as in ordinary negligence cases.




Damages


Personal injury and property damages, and purely economic loss, are recoverable.




Defenses


Defenses include assumption of risk (using a product while knowing of breach of warranty) and contributory negligence to the same extent as in strict liability cases. Failure to give notice of breach is a defense under the U.C.C. (even in persona] injury cases).




Effect of Disclaimers


Disclaimers are generally rejected in personal injury cases but upheld for economic loss.

PRODUCTS LIABILITY -REPRESENTATION THEORIES - Express Warranty
Ia addition to the theory of implied warrantjes, a defendant may be liable when a product does not live up to some affirmative representation. The two representation theories are: Express Warranty and Misrepresentation of Fact.



Express Warranty


Any affirmation of fact or promise concerni ng goods that becomes part of the basis of the bargain creates an express warranty.




Who Can Sue?


Any consumer, user, or bystander can sue. If a buyer sues, the warranty must have been "part of the basis of the bargain ." If plaintiff is not in privity (e.g., bystander), she need not have relied on the representation as long as someone did.




Bailee and Lessee


This warranty extends to bailments and leases as well as sales.




Breach


Fault need not be shown to establish breach. Plaintiff need only show that the product did not live up to its warranty.




Causation, Damages, and Defenses


Causation, damages, and defenses are treated just as under implied warranties.d.




Disclaimers


A disclaimer will be effective only in the unlikely event that it is consistent wit.h the warranty.

PRODUCTS LIABILITY - REPRESENTATION THEORIES - Misrepresentation of Fact
A seller will be liable for misrepresentations of facts concerning a product where:



The statement was of a material fact concerning quality or uses of goods (mere puffery insufficient), and




The seller intended to induce reliance by the buyer in a particular transaction.Liability is usually based on strict liability but may also arise for intentional or negligent misrepresentations.




Justifiable Reliance


Justifiable reliance is required (i.e., the representation was a substantial factor in inducing the purchase). Reliance need not be the victim's (it may be a prior purchaser's). Privity is irrelevant.




Causation and Damages


Actual cause is shown by reliance. Proximate cause and damages are the same as for strict liability.




Defenses


Assumption of risk is not a defense if plaintiff is entitled to rely on the representation. Contributory negligence is the same as i n strict liability, unless defendant committed intentional misrepresentation.

NUISANCE
Nuisance is not a separate tort in itself. Rather, nuisances are a type of harm-the invasion of either private property rights or public rights by conduct that is tortious because jt falls into the usual catego ries of tort liability (i.e., intentional, negligent, strict Iiahility). There are two types of nuisance: private and public.
NUISANCE - PRIVATE NUISANCE
Private nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment of property that he actually possesses or to which he has a right of immediate possession.



Exam Tip: Nuisance questions on the MBE will often flag the correct choice with a key term from the definition of nuisance-e.g., defendant is liable because the activity created a "substantial" (or "unreasonable'') interference with plaintiff 's use of her land.




Substantial Interference


Substantial interference is interference that is offensive, inconvenient, or annoying to the average person i n the community. It is not substantial if it is merely the result of plaintiff's hypersensitivity or specialized use of his own property.




Unreasonable Interference


To establish unreasonable interference; required for nuisances based on intent or negligence, the severity of the inflicted injury must outweigh the utility of defendant's conduct. In balancing these respective interests, courts take into account that every person is entitled to use his own land i n a reasonable way, considering the neighborhood , land values, and existence of any alternative courses of conduct open to defendant.




Trespass to Land Distinguished


In a trespass, there is an interference with the landowner's exclusive possession by a physical invasion; in a private nuisance, there is an interference with use or enjoyment.




NUISANCE - PRIVATE NUISANCE
Public nuisance is an act that unreasonably interferes with the 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.
NUISANCE - REMEDIES
Damages

Plaintiff will usually be awarded damages.




Injunctive Relief


If the legal remedy of damages is unavailable or inadequate (e.g., the nuisance will cause irreparable injury), injunctive relief will be awarded. In this case, the court will consider the relative hardships. However, hardships will not be balanced where defendant's conduct was willful.




Abatement by Self-Help


In the case of a private nuisance, self-help abatement is available after notice to defendant and his refusal to act. Only necessary force may be used. ln public nuisance cases, only a public authority or a private party who has suffered some unique damage can seek an injunction or abatement.

NUISANCE - DEFENSES
Legislative Authority

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




Conduct of Others


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




Contributory Negligence


Contributory negligence generally is no defense to nuisance unless plaintiff 's case rests on a negligence theory.




Coming to the Nuisance


One may ''come to a nuisance" (purchasing ]and next to an already existing nuisance) and, thereafter, pursue an action. It is generally not a bar to plaintiff's action unless she ''came to the nuisance" for the sole purpose of bringing a harassing lawsuit.




GENERAL CONSIDERATIONS FOR ALL TORT CASES - VICARIOUS LIABILITY
Vicarious liability is liability that is derivatively imposed . In short, this means that one person commits a tortious act against a third party and another person will he liable to the third party for this act. The basic situations that you should note for bar examination purposes are set out below.
GENERAL CONSIDERATIONS FOR ALL TORT CASES - VICARIOUS LIABILITY - Doctrine of Respondeat Superior
A master/employer will be vicariously liable for tortious acts committed by her servant/ employee if the tortious acts occur within the scope of the employment relationship.



Frolic and Detour


An employee making a minor deviation from his employer's business for his own purposes is still acting within the scope of his employment. If the deviation in time or geographic area is substantial , the employer is not liable.




Intentional Torts


It is usually held that intentional tortious conduct by employees i s not within the scope of employment . Exceptions:




Force is authorized in the employment, e.g ., bouncer.




Friction is generated by the employment, e.g., bill collector.




The employee is furthering the business of the employer, e.g., removing customers from the premises because they are rowdy.




Liability for Own Negligence


Employers may be liable for their own negligence by negligently selecting or supervising their employees. (This is not vicarious liability.)

GENERAL CONSIDERATIONS FOR ALL TORT CASES - VICARIOUS LIABILITY - Independent Contractor Situations
ln general, a principal will not be vicariously liable for tortious acts of her agent if the agent is an independent contractor. Two broad exceptions exist, however:



The independent contractor is engaged i n inherently dangerous activities, e.g.,excavating next to a public sidewalk, blasting.




The duty, because of public policy considerations, is simply nondelegable, e.g ., the duty to use due care in building a fence around an excavation site.




Liability for Own Negligence


The employer may be liable for her own negligence in selecting or supervising the independent contractor (e.g., hospital liable for contracting with unqualified and incompetent physician who negligently treats hospital's patient). (This is not vicarious liability.)

GENERAL CONSIDERATIONS FOR ALL TORT CASES - VICARIOUS LIABILITY - Partners and Joint Venturers
Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture.
GENERAL CONSIDERATIONS FOR ALL TORT CASES - VICARIOUS LIABILITY - Automobile Owner for Driver
The general rule is that an automobile owner is not vicariously liable for the tortious conduct of another person driving his automobile. In some jurisdictions, courts employ theories other than vicarious liability to hold an automobile owner liable



Family Car Doctrine


In many states, the owner is liable for tortious conduct of immediate family or house hold members who are driving with the owner's express or implied permission.




Permissive Use


A number of states have now gone further by imposing liability on the owner for damage caused by anyone driving with the owner's consent.




Negligent Entrustment


An owner may be liable for her own negligence i n entrusting the car to a driver. Some states have also imposed liability on the owner i f she was present in the car at the time of the accident, on the theory that she could have prevented the negligent driving, and hence was negligent herself in not doing so. (This is not vicarious liability.)

GENERAL CONSIDERATIONS FOR ALL TORT CASES - VICARIOUS LIABILITY - Bailor for Bailee
Under the general rule, the bailor is not vicariously liable for the tortious conduct of his bailee.



Negligent Entrustment


As above, the bailor may be liable for her own negligence in entrusting the bailed object. (This is not vicarious liability.)

GENERAL CONSIDERATIONS FOR ALL TORT CASES - VICARIOUS LIABILITY - Parent for Child
A parent is not vicariously liable for the tortious conduct of the child at common law. Note, however, that most states, by statute, make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount (e.g., $1O,OOO)



Child Acting as Agent for Parents


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




Parent Liable for Own Negligence


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

GENERAL CONSIDERATIONS FOR ALL TORT CASES - VICARIOUS LIABILITY - Tavern keepers
Common Law

No Liability was imposed on vendors of intoxicating beverages for injuries resulting from the vendee's intoxication, whether the injuries were sustained by the vendee or by a third person as a result of the vendee's conduct.




Modern Law


Many states, in order to avoid this common law rule, have enacted Dramshop Acts. Such acts usually create a cause of action in favor of any third person injured by the intoxicated vendee. Several courts have imposed liability on tavern.keepers even in the absence of a Dramshop Act. This liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liabiIity.




When you see an MBE question on vicarious liability, recognizing whether applies is only the first step in your analysis. Even where defendant is notvicariously li able; plain L ff may prevail if defendant personally was negligent in supervising the person causing the injury. Always look for this option among your answer choices.

GENERAL CONSIDERATIONS FOR ALL TORT CASES - PARTIES -MULTIPLE DEFENDANT ISSUES - Joint and Several Liability
Where two or more negligent acts combine to proximalely cause an individual injury, each negligent actor will be jointly and severally liable (i.e., liable to plaintiff for the entire damage incurred). If the injury is divisible, each defendant is liable only for the identifiable portion.



Defendants Acting in Concert


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




Statutory Limitations


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

GENERAL CONSIDERATIONS FOR ALL TORT CASES - PARTIES -MULTIPLE DEFENDANT ISSUES - Satisfaction and Release
Satisfaction

Recovery of full payment ls a "satisfaction ." Only one satisfaction is allowed. Until there js satisfaction, however, one may proceed against all jointly liable parties.




Release


At common law, a 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.

GENERAL CONSIDERATIONS FOR ALL TORT CASES - PARTIES -MULTIPLE DEFENDANT ISSUES - Contribution and Indemnity
Contribution and indemnity are doctrines that determine how joint tortfeasors allocate between them the damages they must pay to a successful plaintiff.



Exam Tip: To keep these two doctrines separate in your mind, recall that generally, for contribution to apply, both defendants must have a measurable degree of culpability for the tort, but indemnity usually applies when one of the parties is much more responsible than the other. It is important to note that neither of these doctrines affects how much the plaintiff receives. Rather, they deal with how much of the total award each defendant ultimately must pay.

GENERAL CONSIDERATIONS FOR ALL TORT CASES - PARTIES -MULTIPLE DEFENDANT ISSUES - Contribution and Indemnity - Contribution
The rule of contribution allows a defendant who pays more than his share of damages under joint and several liability to have a claim against other jointly liable parties for the excess; i.e., it apportions responsibility among those at fault.



Limitations


The contribution defendant must be originally liable to the plaintiff. Also, contribution is not applicable to intentional torts.




Methods of Apportionment


Comparative Contribution


Most states have a comparative contribution system, whereby contribution is imposed in proportion to the relative fault of the various defendants.




Equal Shares


In a minority of states, apportionment is in equal shares regardless of degrees of fault.

GENERAL CONSIDERATIONS FOR ALL TORT CASES - PARTIES -MULTIPLE DEFENDANT ISSUES - Contribution and Indemnity - Contribution - Indemnity
Indemnity involves shifting the entire loss between or among tortfeasors. Indemnity is available in the following circumstances: (i) by contract., (ii) in vicarious liability situations, (iii) under strict products liability, and (iv) 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 the manufacturer who negligently manufactured it; one whose liability is based on a secondary duty may recover indemnification from a person who had a primary duty; one who is passively negligent may recover indemnification from a joint tortfeasor who is actively negligent) .
GENERAL CONSIDERATIONS FOR ALL TORT CASES - PARTIES -MULTIPLE DEFENDANT ISSUES - Contribution and Indemnity - Contribution - Comparative Contribution
As noted above, most comparative negligence states have adopted a comparative contribution system where contribution i s in proportion to the relative fault of the various defendants. This approach also supplants indemnification rules based on identifiable differences in degree of fault.
SURVIVAL AND WRONGFUL DEATH - Survival of Tort Actions
Survival acts allow one's cause of action to survive the death of one or more of the parties. The acts apply to actions involving torts to property and torts resulting in personal injury.However, torts invading intangible personal interest (e.g., defamation, invasion of right of privacy, malicious prosecution) expire upon victim's death.
SURVIVAL AND WRONGFUL DEATH - Wrongful Death
Wrongful death acts grant recovery for pecuniary injury resulting to the spouse and next of kin. A decedent's creditors have no claim against the amount awarded . Recovery is allowed only to the extent that the deceased could have recovered in an action had he lived. Hence, the decedent's contributory negligence reduces the wrongful death recovery in comparative negligence states. Similarly, a potential beneficiary's contributory negligence reduces her share of the recovery in comparative negligence states.
TORTIOUS INTERFERENCES WITH FAMILY RELATIONSHIPS
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 the other spouse.




Parent-Child


A parent may maintain an action for loss of a 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 the injured family member also prevents recovery for interference with the family relationship.

TORT IMMUNITIES
Intra-Family Tort Immunities

Under the traditional view, one member of a family unit could not sue another in tort for personal injury. Today, most states have abolished husband-wife immunity. A slight majority have also abolished parent-child immunity (but generally do not allow children Lo sue merely for negligent supervision). Those that retain parent-child immunity do not apply it in (i) cases alleging intentional tortious conduct, or (ii) automobile accident cases to the extent of insurance coverage.

TORT IMMUNITIES - Governmental Tort Immunity
Governmental Tort ImmunityIn varying degrees, federal, state, and municipal tort immunity has been eliminated. Where it survives, immunity attaches to governmental , not proprietary, functions.



Federal Government


Under the Federal Tort Claims Act, the United States has waived immunity for tortious acts. However, immunity will still attach for (i) assault, (ii) battery, (iii) false imprison ment, (iv) false arrest, (v) malicious prosecution , (vi) abuse of process, (vii) libel and slander, (viii) misrepresentation and deceit, and (ix) interference with contract rights.Immunity is not waived for acts that are characterized as "discretionary," as distinguished from those acts termed "ministerial."




State and Local Governments


Most states have substantially waived their immunity to the same extent as the 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 the public at large is not owed to any particular citizen absent a special relationship between the governmental body and the 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.




Immunity of Public Officials


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.

TORT IMMUNITIES -Charitable Immunity
The majority of jurisdictions have eliminated charitable immunity.