Cal Bar Torts

Front 1

BATTERY

Back 1

Battery requires an intentional act which is intended to and does result in a harmful or offensive touching of the person of the Plaintiff with resulting damage

Front 2

Actual Causation (“But for” + “Substantial Factor”)

Back 2

D’s act was a substantial factor in bringing about Plaintiff’s harm. Each D acting alone could have caused P’s injury.

Front 3

Proximate Causation

Back 3

It is foreseeable that someone would be injured. Thus, D is the proximate cause of P’s injury

Front 4

Defenses

Back 4

CSDDR. R=repossession
(a) Consent
(b) Self-Defense
(c) Defense of Others
(d) Defense of Property:

Front 5

Defenses - (a) Consent

Back 5

Actual or implied assent by P to D’s act. 2 forms of implied: 1. custom & usage 2. D’s reasonable interp of P’s objective conduct. Validity: “Consent is invalid when induced by fraud, duress (present threat); or when consent is given by P lacking capacity; or when the act by D goes beyond the scope of consent.”

Front 6

Defenses - (b) Self-Defense

Back 6

A non-aggressor D who has reasonable fear of harm can use a reasonably necessary force to prevent the harm.”
(i) Deadly force: “In response to deadly force, D can use the same degree of force intended to cause death or serious bodily harm.”
Retreat: “Modern trend requires retreat before using deadly force. No retreat is necessary if the attack occurs in the D’s home.”
(ii) Excessive Force: “Rule is that when D uses force beyond that reasonably necessary to prevent the harm threatened, D is not protected by the defense.”

Front 7

Defenses - Defense of Others

Back 7

D is privileged to use that degree of force the victim could have used in self defense

Front 8

Defenses - Defense of Property

Back 8

D may use that degree of force reasonably necessary to protect property from theft, destruction, trespass.”
(i) Demand: D must demand that the interference end prior to the use of force unless demand would be futile.
(ii) Force used to re-enter property: “Modernly, self-help to recover possession is not permitted.”
(iii) Force used to recapture chattel: “Reasonable, non-deadly force can be used against one who has wrongfully taken a chattel, if D has right to possession, makes a timely demand (unless futile) and is in fresh pursuit.”

Front 9

ASSAULT

Back 9

Assault requires an intentional act which is intended to and does result in Plaintiff’s apprehension of an imminent battery causing damage

Front 10

FALSE IMPRISONMENT

Back 10

False Imprisonment requires an intentional act which actually confines (overcoming the will to leave) of the Plaintiff causing Plaintiff damage

Front 11

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Back 11

Intentional Infliction of Emotional Distress requires an intentional, extreme and outrageous act resulting in Plaintiff’s severe emotional distress

Front 12

Extreme and Outrageous Act

Back 12

Extreme and Outrageous Act is conduct that exceeds all bounds of decency tolerated in civilized society

Front 13

P’s severe emotional distress

Back 13

must interfere with ability to conduct normal activities of life. No physical symptoms are required

Front 14

REAL PROPERTY – TRESPASS

Back 14

Trespass requires an intentional and volitional entry onto another’s property depriving the possessor of the land of exclusive possession

Front 15

REAL PROPERTY – TRESPASS
Defenses: CPPR

Back 15

(a) Consent:
(b) Private Necessity: Property can be invaded/damaged if it reasonably appears necessary to protect any person or property from destruction or serious injury. Partial privilege – actor is liable for actual damages caused to property but is not liable for the technical trespass.
(c) Public Necessity: Person can invade/damage real or personal property when reasonably necessary to avoid a public disaster. Absolute privilege – actor is not liable for any damage.
(d) Repossession: 1. make demand, 2. reasonable prompt entry

Front 16

TRESPASS TO CHATTELS

Back 16

Trespass to Chattels requires an intentional act interfering with P’s possessory right in personal property causing P damage.

Front 17

CONVERSION

Back 17

Conversion requires an intentional act resulting in the unauthorized assertion of dominion and control over another’s property causing P damage. Trespass to Chattel always exists when there’s conversion

Front 18

INTERFERENCE WITH CONTRACT

Back 18

1. Existing valid contractual relationship:
2. Knowing interference by affirmative act:
3. Intent to disrupt in order to damage P:
4. Damages:
5. Defenses: Business privilege (D used proper means to achieve legit business purpose) & unenforceable contract.

Front 19

INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE

Back 19

Requires an intentional interference by one party of another’s prospective economic advantage. (Same elements as for interference with K except not limited to existing Ks).

Front 20

INTENTIONAL MISREPRESENTATION (FRAUD)

Back 20

An intentional misrepresentation of a material fact with scienter which is actually and justifiably relied upon by plaintiff resulting in damages. Scienter: knowingly false or reckless disregard for the truth

Front 21

NEGLIGENT MISREPRESENTATION

Back 21

Misrepresentation made by D in business or professional capacity; breach of duty to that particular P; causing justifiable reliance by P; resulting in damages

Front 22

WRONGFUL INSTITUTION OF LEGAL PROCEEDING

Back 22

1. Malicious Prosecution:
(a.) filing of a claim against a party for a purpose other than seeking justice
b. the claim being dismissed in the D’s favor;
c. absence of probable cause for prosecution or civil filing
d. damages.
2. Abuse of Process:
a. a claim was brought to further an improper purpose;
b. some definite act or threat against P in order to accomplish ulterior purpose;
c. damages.

Front 23

DEFAMATION

Back 23

Defamation requires a Defamatory Statement, Of and Concerning Plaintiff, Falsity, Publication to Third Persons, causing Damages to ∏’s reputation

Front 24

Defamatory Statement

Back 24

A defamatory statement is one which tends to lower P’s reputation with at least a substantial minority of the community

Front 25

Inducement and innuendo

Back 25

Where a statement is NOT defamatory on its face, P may introduce extrinsic facts (known as pleading by inducement) to show the defamatory meaning by innuendo

Front 26

Of and Concerning the Plaintiff

Back 26

In order to recover for defamation, Plaintiff must prove that the defamatory statement referred to him/her.
A. Group Defamation: Statement must refer to all members of the group.
B. Colloquium: Where a statement on its face does not specifically refer to a P, P may introduce extrinsic facts to prove the defamatory statement was “of and concerning” her/him.

Front 27

Publication to Third Persons

Back 27

Statement must be published to third persons and understood to be defamatory. *Publication doesn't have to be intentional.

Front 28

Falsity

Back 28

(Only where the D is news media and there is a Constitutional Defense.) At common law, falsity is NOT an element in P’s case. A defamatory statement was presumed to be false. Truth is an affirmative defense. Constitutional Defense: (where D is news media), falsity is an element in P’s prima facie case.

Front 29

DEFAMATION - Damages
SLANDER

Back 29

SLANDER: General Damages NOT presumed. Must prove special damages. “Defamation in the form of slander is not actionable without a showing of special damages. General damages are not presumed.”
General Damages: Those damages the law itself presumes to have accrued from the wrong complained of. They must be immediate, direct and proximate result of the injury.
Special Damages: identifiable losses actually suffered by the P (loss of ee, medical expenses). Must be specifically pleaded & proved.

Front 30

DEFAMATION - Damages
SLANDER PER SE

Back 30

SLANDER PER SE: General Damages ARE presumed. Loss of reputation is presumed. If the slander falls within one of the four following categories, P need not show special damages.
1. Lack of Chastity of a Woman
2. Present Loathsome Disease
3. Accusation of Crime involving Moral Turpitude
4. Statements Affecting P in Trade or Business (Statement must relate to some characteristic that has special significance to P’s profession.)

Front 31

DEFAMATION - Damages
LIBEL PER SE “LIBEL”:

Back 31

General Damages ARE presumed. If the defamation is in the form of libel, and is defamatory on its face, general damages are presumed from the fact that it was published. P need not show special damages to recover, although she can recover these.

Front 32

DEFAMATION - COMMON LAW DEFENSES

Back 32

P (private person) v. D (private person)
1. Consent by P to the publication.
2. Truth of the gist of the statement is an absolute defense.

Front 33

DEFAMATION - Qualified Privilege

Back 33

Qualified Privilege – Limited Privilege: 1. Fair Comment: an honest opinion about matters of general public interest. 2. Reports of Public Proceedings: Employer Job Recommendation; Publication to One Taking Official Action; Interest of Publisher (D’s statement made to defend his/her own actions, property or reputation); Interest of Recipient (e.g. statement by credit bureau). 3. Loss of Qualified Privilege: Four-prong test to determine if publication beyond the scope of qualified privilege

Front 34

DEFAMATION - Absolute Privilege

Back 34

Speaker will not be liable even with a showing of malice.: 1. Judicial proceeding: Statements must bear a reasonable relationship to the proceedings. 2. Legislative proceedings, 3. Gov. executive proceedings: reasonable relationship req., 4. Compelled broadcast: media is compelled to broadcast the information from the speaker (e.g. Unibomber).

Front 35

DEFAMATION - CONSTITUTIONAL PRIVILEGES

Back 35

Public Official/Public Figure v. News Media (actual malice): New York Times v. Sullivan – If the P is a public figure or public official, the test to determine whether the news media D will be held liable is MALICE. MALICE TEST: knowledge of the falsity or reckless disregard of whether it was true or false. The test is subjective awareness.
• Damages: If P can show ACTUAL MALICE (knowledge of the falsity or reckless disregard of the truth), s/he can recover general common law damages and punitive damages without affirmative showing of injury.

Front 36

DEFAMATION - CONSTITUTIONAL PRIVILEGES

Private Person v. News Media:

Back 36

Where the defamatory statement regards a non-public person, there is less concern for freedom of speech and press. Further, private individuals are more vulnerable to injury from defamation because they do not have as much public access for rebuttal.

Front 37

DEFAMATION - CONSTITUTIONAL PRIVILEGES

Public Concern v. Private Matter:

Back 37

Is the subject matter one of PUBLIC CONCERN? (Negligence): Defamation actions brought by private individuals are subject to constitutional limitations only when the defamatory statement involves a matter of public concern. NEGLIGENCE TEST: Would a reasonably prudent editor/publisher know or should have known that the statement was defamatory? Objective Awareness.

Front 38

DEFAMATION - CONSTITUTIONAL PRIVILEGES

PURELY PRIVATE MATTER

Back 38

(Common Law Applies): Rule: When the defamatory statement involves a matter of purely private concern, P may recover presumed and punitive damages according to common law or state statute. The news media loses their special constitutional protections if they defame a purely private person about a purely private matter.

Front 39

DEFENSES TO DEFAMATION

Back 39

Consent, Truth, Privilege, 1st AM
1. Consent
2. Truth, but the D has the burden.
3. A privilege occurs:
a. Absolute privileges &
b. Qualified privilege: Based on circumstances of the speech, not identity of speaker. 3 elements: socially useful context, defamatory material is relevant to that socially useful context, D made the statement in good faith, with belief in accuracy of statement.
4. First amendment glosses (only for media Ds).

Front 40

INVASION OF PRIVACY

Back 40

An intentional or negligent act by the D resulting in serious and unreasonable invasion of the P’s right of privacy causing damages

Front 41

INVASION OF PRIVACY - INTRUSION

Back 41

An intrusion into P’s privacy or seclusion in a private matter such that a reasonable person should find the intrusion objectionable causing damages.
* P must be in place with expectation of privacy. Must be secluded.
* There is no requirement of physical entry to commit an intrusion.

Front 42

INVASION OF PRIVACY - MISAPPROPRIATION OF NAME OR LIKENESS

Back 42

D uses Ps name or likeness for a commercial advantage without P’s consent.

Front 43

INVASION OF PRIVACY - FALSE LIGHT

Back 43

D publishes a story in connection with the P that:
a. Places P in a false light. False light attributes to P views that s/he does not hold, actions s/he did not take.
b. Publication is objectionable to a reasonable person; and
c. Widely disseminated.
d. Causation.
e. Damages.

Front 44

INVASION OF PRIVACY - FALSE LIGHT
DEFENSES:

Back 44

i. Truth is NOT a defense.
ii. Newsworthiness – where invasion occurs in the context of a newsworthy event of current interest (liberally defined by the courts) there is no cause of action for false light privacy. i.e. private info re: politician.
iii. Media are privileged absent malice. If the matter is one of public interest, the individual must establish falsity and actual malice whether or not s/he qualifies as a public figure. Test: Malice = knowledge of the falsity or reckless disregard of whether it was true or false.

Front 45

INVASION OF PRIVACY - PUBLIC DISLCOSURE OF PRIVATE FACTS

Back 45

Requires public disclosure of non-public information in such a manner as to offend a reasonable person causing damages. DEFENSES: Public disclosure. Falsity & malice.

Front 46

NEGLIGENCE - DUTY:

Back 46

D has a duty to act as a reasonable person would in like or similar circumstances to avoid causing unreasonable risk of harm to others. Two separate inquiries:

Front 47

NEGLIGENCE - DUTY: To whom does a given D owe a duty?

Back 47

Can P claim they were entitled to a duty?
a. Cardozo: A duty is owed to foreseeable victims within the zone of danger. Exception: Rescuers are always owed a duty and can assert a negligence claim even if they are very far away
b. Andrews: One owes a duty to the whole world to behave in a manner so as to not create unreasonable risk of harm.

Front 48

NEGLIGENCE - How much care do you owe?

Back 48

You owe the amount of care that would be given by reasonable prudent person acting under similar circumstance.

Front 49

NEGLIGENCE - How much care do you owe? Exceptions: Superior Knowledge

Back 49

Superior Knowledge is taken into account. If the D has special knowledge, they are expected to use it

Front 50

NEGLIGENCE - How much care do you owe? Exceptions: Physical Characteristics

Back 50

of the D are taken into account. So if they are blind, we use reasonably prudent blind person

Front 51

NEGLIGENCE - How much care do you owe? Exceptions: Children

Back 51

Kids under age 4 are incapable of negligence. Kids owe standard of care of a hypothetical child of similar age, experience, and intelligence. Exception: When child is engaged in adult activity, use the reasonable person standard

Front 52

NEGLIGENCE - How much care do you owe? Exceptions: Professionals

Back 52

Doctors:
1. Specialists are held to a national standard of care and must conduct themselves as a reasonable specialist would nationally.
2. Generalists are held to standard of care of a reasonable physician in the same or similar locality.
ii. Other Professionals: Must possess the minimum, common skill of members in good standing in the profession. Professionals must act as a reasonable expert would in like or similar circumstances.

Front 53

NEGLIGENCE - How much care do you owe? Exceptions: Land occupiers/owners

Back 53

Liability dependent on status of person on land.

Front 54

NEGLIGENCE - Duty owed to Adult Trespasser

Back 54

No duty is owed by land occupier to make premises safe. Modernly, Roland v. Christian – full duty is owed even to trespassers.

Front 55

NEGLIGENCE - Duty owed to Known Adult Trespasser

Back 55

Land occupier had a duty to warn of dangerous conditions on the land.

Front 56

NEGLIGENCE - DUTY:

Back 56

D has a duty to act as a reasonable person would in like or similar circumstances to avoid causing unreasonable risk of harm to others. Two separate inquiries:

Front 57

NEGLIGENCE - DUTY: To whom does a given D owe a duty?

Back 57

Can P claim they were entitled to a duty?
a. Cardozo: A duty is owed to foreseeable victims within the zone of danger. Exception: Rescuers are always owed a duty and can assert a negligence claim even if they are very far away
b. Andrews: One owes a duty to the whole world to behave in a manner so as to not create unreasonable risk of harm.

Front 58

NEGLIGENCE - How much care do you owe?

Back 58

You owe the amount of care that would be given by reasonable prudent person acting under similar circumstance.

Front 59

NEGLIGENCE - How much care do you owe? Exceptions: Superior Knowledge

Back 59

Superior Knowledge is taken into account. If the D has special knowledge, they are expected to use it

Front 60

NEGLIGENCE - How much care do you owe? Exceptions: Physical Characteristics

Back 60

of the D are taken into account. So if they are blind, we use reasonably prudent blind person

Front 61

NEGLIGENCE - How much care do you owe? Exceptions: Children

Back 61

Kids under age 4 are incapable of negligence. Kids owe standard of care of a hypothetical child of similar age, experience, and intelligence. Exception: When child is engaged in adult activity, use the reasonable person standard

Front 62

NEGLIGENCE - How much care do you owe? Exceptions: Professionals

Back 62

Doctors:
1. Specialists are held to a national standard of care and must conduct themselves as a reasonable specialist would nationally.
2. Generalists are held to standard of care of a reasonable physician in the same or similar locality.
ii. Other Professionals: Must possess the minimum, common skill of members in good standing in the profession. Professionals must act as a reasonable expert would in like or similar circumstances.

Front 63

NEGLIGENCE - How much care do you owe? Exceptions: Land occupiers/owners

Back 63

Liability dependent on status of person on land.

Front 64

NEGLIGENCE - Duty owed to Adult Trespasser

Back 64

No duty is owed by land occupier to make premises safe. Modernly, Roland v. Christian – full duty is owed even to trespassers.

Front 65

NEGLIGENCE - Duty owed to Known Adult Trespasser

Back 65

Land occupier had a duty to warn of dangerous conditions on the land.

Front 66

NEGLIGENCE - Duty owed to Child Trespassers

Back 66

Attractive Nuisance Theory.” Land occupier is liable to children only if: 1. Possessor knows or has reason to know that children are likely to trespass. 2. Land occupier knows or has reason to know condition is dangerous to children. 3. Risk to the child outweighs the utility of maintaining the condition and the burden of eliminating the danger.

Front 67

NEGLIGENCE - Duty owed to Licensee

Back 67

People who come onto the land for their own benefit. Duty is to warn the licensee of a known dangerous condition on the land. ***Owner/Occupier has NO duty to INSPECT/REPAIR known defects. [Firefighters/cops are usually licensees. They never recover for injuries that are an inherent risk of their jobs.]

Front 68

NEGLIGENCE - Duty owed to Invitee

Back 68

People who come onto the land to confer some benefit on the occupier. Duty is to inspect, warn, and make safe dangerous conditions on the land. People outside the Land: land occupier is required to correct conditions which are unreasonably dangerous to those outside the land.

Front 69

NEGLIGENCE - Omissions to Act

Back 69

As a general rule, Defendant’s failure to act will not result in liability. But, liability will be imposed if there was an affirmative duty to act and D failed to act. b. Bar Exam Hint: If fact pattern indicates that the culpable conduct maybe that of an omission to act, give the general rule of “no duty” then discuss the exception:

Front 70

NEGLIGENCE - Affirmative Duty to Act: Duty to aid others

Back 70

If D’s at fault, D must aid. Modernly, some statutes make it a criminal offense for drivers of autos to fail to aid any person involved in an accident even though D was not involved. Good Samaritan Rule: One who, though under no legal duty to do so, aids a person who is hurt or in peril, must exercise due care not to worsen the victim’s situation

Front 71

NEGLIGENCE - Affirmative Duty to Act: Duty to control third persons: Bailment & Public Premises

Back 71

1. Bailment: If the owner of chattels permits a third person to use his chattel, the bailor will be liable for intentional or negligent acts of bailee if committed in his presence, or if s/he knows or has reason to know that such bailee is likely to commit such acts.
2. Public Premises: Those who hold premises open to public must use due care to protect persons coming onto the premises from theft of property, attack, etc. from other persons on the premises. (common carriers, innkeepers, restaurants)

Front 72

NEGLIGENCE - Affirmative Duty to Act: Duty to control third persons: Children & Special relationships

Back 72

3. Duty to control children: Parents will be liable for acts of child if parents knew or should have known of the child’s dangerous propensities and had an oppty to exercise control over the child. Otherwise, parents are generally not vicariously responsible for acts of child committed in their presence or otherwise.
4.Special relationships: family, school-pupil, hospital-patient, jailkeeper-prisoner, common carrier-passenger, landowner-invitee, etc.

Front 73

NEGLIGENCE - BREACH

Back 73

Always discuss what a reasonable person would have done in the same circumstances

Front 74

NEGLIGENCE - Res ipsa loquitor

Back 74

The thing speaks for itself:
a. Accident would not have occurred in the absence of someone’s negligence.
b. Event was caused by an instrumentality in exclusive control of D.
c. Plaintiff did not contribute to his/her own injuries.

Front 75

NEGLIGENCE - ACTUAL CAUSATION - But for Test:

Back 75

Where the facts only involve one D, write, “Defendant is the actual cause of Plaintiff’s injuries because ‘but for’ _________(D’s act), the accident would not have occurred.

Front 76

NEGLIGENCE - ACTUAL CAUSATION - Substantial Factor Test

Back 76

Each (act or D) was a substantial factor in causing P’s injuries. Either D’s act would have been sufficient to produce the results.”
* Both will be jointly and severally liable.
* When there are Multiple Ds with unascertainable unknowable cause, shift the burden on proof to the D’s, or they will be jointly and severally liable.

Front 77

NEGLIGENCE - PROXIMATE CAUSATION

Back 77

Did anything intervene between D’s negligent act and P’s injuries such that D will be relieved of liability? RULE: Proximate cause is a policy consideration that in certain instances will limit D’s liability

Front 78

NEGLIGENCE - PROXIMATE CAUSATION
Direct Causation:

Back 78

“Causation is direct here, because there were no intervening acts between P’s injury and D’s Act. Further, it is foreseeable when D did _________________, someone would be injured.” Move on.

Front 79

NEGLIGENCE - PROXIMATE CAUSATION
Indirect Causation

Back 79

Indirect – Something intervened between D’s negligent act and P’s injuries. Discuss whether the intervening force was dependent (define) or independent (define). Then discuss if the intervening act was foreseeable or unforeseeable. If the intervening act was unforeseeable, then the chain of causation is broken (MAJOR issue).

Front 80

NEGLIGENCE - PROXIMATE CAUSATION
Indirect Causation
Dependent forces

Back 80

Dependent forces are those which occur as a result of D’s original negligent act. D will be held to the proximate cause of P’s injuries if the intervening force was dependent.

Front 81

NEGLIGENCE - PROXIMATE CAUSATION
Indirect Causation
Independent forces

Back 81

not arising from D’s act may relieve D of liability. These forces are called superseding. i.e. Acts of God, animals, intentional criminal acts only if unforeseeable

Front 82

NEGLIGENCE - DAMAGES

Back 82

P is entitled to recover all compensatory damages, including general damages such as pain and suffering, and special damages, which must be specifically pleaded and proved. Punitive damages are NOT recoverable for negligence UNLESS facts specifically show D’s conduct was wanton, willful, or reckless.”

Front 83

NEGLIGENCE - DAMAGES
The eggshell skull rule

Back 83

You take your P as you find him. If the D has committed every other element of negligence, the D must pay for all damage suffered by the P even if surprisingly great in scope.

Front 84

NEGLIGENCE - DEFENSES
Contributory Negligence:

Back 84

P has a duty to act as a reasonable person would in like or similar circumstances to prevent an unreasonable risk of harm to himself.
Classic contributory negligence: rare.

Front 85

NEGLIGENCE - DEFENSES
Contributory Negligence Per Se:

Back 85

Two-Prong Test if P violates a Statute or Express Rule of Employer:
a. Class of Persons: Is P w/i the class that statute or rule was designed to protect?
b. Type of Injury: Is P’s injury the type the statute was designed to protect against?

Front 86

NEGLIGENCE - DEFENSES
Comparative Negligence

Back 86

Some Js will assign a percentage of fault attributable to P’s negligence and reduce P’s damage award by that percent.
a. Pure comparative fault: use the jury percentages. (default rule)
b. Partial or modified comparative negligence: Ps damages are reduced but if the P is more than 50% at fault, the P gets nothing.

Front 87

NEGLIGENCE - DEFENSES
Assumption of Risk:

Back 87

The test is whether P knew of the risk and voluntarily assumed it. Rescue Attempts – Exception: Where P voluntarily attempts a rescue of one in peril, the court will not find the rescuer either contributorily negligent or to have assumed the risk.

Front 88

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (RARE):

Back 88

MAJORITY VIEW: There must be actual physical impact resulting from D’s actions. There is no duty to take due care to avoid only emotional distress and thus no liability if only that consequence follows. Must have physical impact on Plaintiff to recover.
Exception: 1. Some Cts permit recovery for mental distress alone if mistaken telegram announces death or tragedy. 2. Some Cts permit recovery for mental distress alone if negligent handling of corpses of relatives.

Front 89

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:
MODERN RULE

Back 89

No actual physical impact resulting form D’s act but mental distress is manifested by physical symptoms

Front 90

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:
Bystander mental distress

Back 90

Bystander mental distress. Where D’s conduct result s in physical harm to another, and P suffers mental distress (manifested by physical symptoms) as a consequence of perceiving the injury to the other, many Js will permit P to recover for his mental distress if P is in the actual zone of danger.
1. Zone of Danger: The majority of states require that P have been sufficiently close to the distress-causing event that ∏ was actually threatened with physical harm.

Front 91

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:

CALIFORNIA RULE:

Back 91

BALANCING TEST: California has abandoned the zone of danger test in favor of balancing P’s proximity to the event; the contemporaneousness of P’s perception of the event; and the closeness of the relationship between P and the person physically injured.

Front 92

NEGLIGENCE – VICARIOUS LIABILITY
EMPLOYER/EMPLOYEE: NEGLIGENT ACTS:

Back 92

An employer is liable for negligence or strict liability his/her employee committed during the course and scope of employment.

Front 93

NEGLIGENCE – VICARIOUS LIABILITY
EMPLOYER/EMPLOYEE: NEGLIGENT ACTS:
Sub-Issue:

Back 93

Test: Acts which are so closely connected with what the employee was hired to do. Discuss whether employee was acting within the scope and course of employment. Use all of the facts relating to whether employee was acting in the course and scope of employment.

Front 94

NEGLIGENCE – VICARIOUS LIABILITY
EMPLOYER/EMPLOYEE: STATEMENT

Back 94

“In order for employer X to be liable for negligence, it must first be established whether the employee is negligent. If the employee is negligent and the negligent act was committed in the course and scope of the employment, the employer X will be held liable under the theory of Respondeat Superior.”

Front 95

NEGLIGENCE – VICARIOUS LIABILITY
EMPLOYER/EMPLOYEE: INTENTIONAL ACTS

Back 95

An employer is generally not liable for the intentional acts of his/her employee because intentional acts of employees are not considered within the course and scope of their employment.

Front 96

NEGLIGENCE – VICARIOUS LIABILITY
EMPLOYER/EMPLOYEE: INTENTIONAL ACTS
Exceptions

Back 96

Court finds intentional conduct to be w/i course & scope of employment:
1. employer was negligent in the selection of the employee.
2. employee is furthering business of employer
3. force is authorized and part of the employment (e.g. bouncer)
4. friction is generated by employment (e.g. bill collector)

Front 97

NEGLIGENCE – VICARIOUS LIABILITY
PARENT/CHILD

Back 97

A parent is usually not liable for acts or omissions to act on his child unless: Parent knew of child’s behavior and had the ability to control it and did not. Negligent entrustment – D permits his child to use a firearm knowing that the child had exhibited previous violent behavior towards his peers. Some courts hold parents liable for acts of children on grounds that parent is the “principal” & child is the “agent.”

Front 98

NEGLIGENCE – VICARIOUS LIABILITY
INDEPENDENT CONTRACTOR/PRINCIPAL

Back 98

A principal is usually not liable for tortuous acts of her agent if the agent is an independent contractor because the hirer has no right to control the activity of the contractor:
Exceptions:
1.Principal was negligent in selection of or hiring of independent contractor.
2.Contractor is engaged in inherently dangerous activity.
3.Nondelegable duty doctrine – task poses a risk to numerous persons – where the contractor undertakes a duty which the law does not permit the hirer to delegate (nondelegable duty) such as maintaining a car in good repair.

Front 99

NEGLIGENCE – VICARIOUS LIABILITY
BAILOR/BAILEE

Back 99

A bailor is not vicariously liable for the torts of his bailee.

Front 100

NEGLIGENCE – VICARIOUS LIABILITY
PARTNERS/JOINT VENTURERS

Back 100

Partners and JVs are vicariously liable for the torts of each other committed in the course and scope of the partnership of joint venture.

Front 101

JOINT AND SEVERAL LIABILITY

Back 101

Where two or more tortuous acts combine to proximately cause an indivisible injury to P, each tortfeasor will be jointly and severally liable for that injury.

Front 102

JOINT AND SEVERAL LIABILITY
Satisfaction:

Back 102

Where P recovers full payment from one tortfeasor by either settlement or payment of judgment, she may not recover further against any other joint tortfeasor.

Front 103

JOINT AND SEVERAL LIABILITY
Release:

Back 103

Common law: a release of one tortfeasor, was a release of all. Modern/Majority Law: a release of one tortfeasor DOES NOT discharge other tortfeasors. The claim against the others is reduced to the extent of the amount stipulated in the agreement or the amount of consideration paid, whichever is greater.

Front 104

JOINT AND SEVERAL LIABILITY
Indemnity

Back 104

Involves the shifting of the entire responsibility for the loss between or among tortfeasors. Indemnity is available under the following circumstances:
i.Right to indemnify by contract
ii.Vicarious liability: ER seeks indemnification from person whose conduct actually caused the damage).
iii.Indemnity Under Strict Products Liability: In products liability cases each supplier is liable to the injured customer but suppliers can seek indemnification against other suppliers in the distribution chain.
iv.Note: The manufacturer is ultimately liable if the product was defective when it left the manufacturer’s hands.

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PRODUCTS LIABILITY

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There are five possible theories of recovery Plaintiff can assert in products liability. They are Negligence, Strict Liability, Implied Warranty, Express Warranty, and Misrepresentation. Only those applicable will be discussed.”

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PRODUCTS LIABILITY
NEGLIGENCE:

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Remember, “ordinary negligence” focuses on the D, while products liability focuses on the defective product.

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PRODUCTS LIABILITY
NEGLIGENCE:
PROPER P

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Briefly state why the P is a proper P in one sentence.
ISSUE: The first issue in any products liability analysis is who is the proper plaintiff.
RULE: The P can be anyone within the foreseeable use of the product – that is, all persons who are endangered by the defective product. Write on Bar: “Here, X is a member of the household and is therefore a foreseeable user of the product. X is a proper ∏.”

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PRODUCTS LIABILITY
NEGLIGENCE:
PROPER D:

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Manufacturers, Product Designers, Wholesalers, Retailers. Note: Standard of care for manufacturers/designers is different from the standard of care for retailers. Write on Bar: “Here, X is the manufacturer of the product and is therefore a proper D.”

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PRODUCTS LIABILITY
NEGLIGENCE:
DUTY - MANUFACTURERS/DESIGNERS

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The standard of care for the Manufacturer or Designer is that they must act as a reasonable manufacturer or designer would act in the same or similar circumstances in designing and manufacturing the product. Manufacturer and Designer may also have a duty to inspect, discover and correct defects, which a reasonable inspection would reveal. This also includes a duty to warn if the product is unavoidably unsafe.
b. RETAILERS/WHOLESALERS (headnote): RULE: Retailer has no duty to inspect unless s/he knows or has had reason to know that the product is likely to be dangerous. [Minority Rule: Retailer has a duty to inspect and discover defects that a reasonable inspection would show.

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PRODUCTS LIABILITY
NEGLIGENCE:
DUTY - RETAILERS/WHOLESALERS

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Retailer has no duty to inspect unless s/he knows or has had reason to know that the product is likely to be dangerous. [Minority Rule: Retailer has a duty to inspect and discover defects that a reasonable inspection would show.]

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PRODUCTS LIABILITY
NEGLIGENCE: BREACH OF DUTY:

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PLAINTIFF MUST SHOW THAT BREACH OF DEFENDANT’S DUTY RESULTED IN A DEFECTIVE PRODUCT. The central question is how would a reasonable manufacturer or designer with the same skill, knowledge, and experience act in like or similar circumstances.

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PRODUCTS LIABILITY
NEGLIGENCE: BREACH OF DUTY:
DEFECT OF MANUFACTURE

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(error in production line)

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PRODUCTS LIABILITY
NEGLIGENCE: BREACH OF DUTY:
DEFECT IN DESIGN:

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P must show three things:
1.there is alternative way to build the product that would have been safer
2.the alternative design is also cost effective
3.alternative design is practical

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PRODUCTS LIABILITY
NEGLIGENCE: BREACH OF DUTY:
DEFECT IN WARNING (lack of adequate warning).

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Part of Product’s design. If product can’t be made physically safer, might be safer with add’l instructions or warnings.

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PRODUCTS LIABILITY
NEGLIGENCE: DAMAGES:

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Plaintiff may recover for pain and suffering. Economic damages alone are insufficient (Damages resulting from product’s failure to perform as well as expected are not recoverable.)”

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PRODUCTS LIABILITY
NEGLIGENCE: DEFENSES: CAM

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i. Contributory negligence, ii. Assumption of risk, iii. Misuse of Product: Determine whether the P properly used product for intended purpose. Not a defense if misuse is foreseeable.

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STRICT PRODUCTS LIABILITY

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Focus on the product and not on the conduct of the D. “P may recover from any commercial supplier (manufacturer, retailer, wholesaler, lessor) who places an article on the market which is in a defective condition unreasonably dangerous to users, consumers, bystanders.” SL does not apply to suppliers of services.

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STRICT PRODUCTS LIABILITY
PROPER P:

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All persons who are endangered by the defective product.

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STRICT PRODUCTS LIABILITY
PROPER D:

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All persons engaged in the commercial distribution of products are liable.

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STRICT PRODUCTS LIABILITY
IS THE PRODUCT DEFECTIVE

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Must discuss ALL three tests.
i. Consumer Expectation Approach
ii. Feasible Alternative Test – Cost/Benefit Analysis
iii. California Test – Barker v. Lull Engineer Co

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STRICT PRODUCTS LIABILITY
IS THE PRODUCT DEFECTIVE
Consumer Expectation Approach:

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Product is defective when product is unreasonably dangerous in its normal intended use. Product may be dangerous beyond the expectation of the ordinary consumer; and 2. Manufacturer must have been able to foresee the dangers of the product.

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STRICT PRODUCTS LIABILITY
IS THE PRODUCT DEFECTIVE
Feasible Alternative Test – Cost/Benefit Analysis:

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Court balances what it would cost to market the product as it is against what it would have cost to market the product free of danger. If a safer product would require unreasonably high costs, the product is not defective.

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STRICT PRODUCTS LIABILITY
IS THE PRODUCT
California Test – Barker v. Lull Engineer Co.: DEFECTIVE

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A product is defective if: 1. the product is unreasonably dangerous beyond the expectation of the ordinary consumer (i.e. Consumer Expectation Approach) AND 2. plaintiff proves that the defect proximately caused her injury (foreseeability not an issue). The burden of proving that utility outweighed danger shifts to D.

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STRICT PRODUCTS LIABILITY
ACTUAL CAUSE:

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The defect which injured P existed at the time it left D’s control and D’s acts must have been at least a substantial factor in bringing about P’s injuries.

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STRICT PRODUCTS LIABILITY
PROXIMATE CAUSATION:

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Look at the wrongfulness of intermediate handler’s conduct to determine whether such conduct will be superceding. Criminal or intentional tortious conduct will relieve D of liability.

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STRICT PRODUCTS LIABILITY
DEFENSES:

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a. Misuse of product. Suppliers must anticipate reasonably foreseeable uses.
b. Scientifically unknown risks:
c. Allergies: if allergic group is significant, manufacturer must warn if they know there is a danger of allergic reaction.
d. Assumption of the Risk: knew of the risk and voluntarily assumed it.
e. NOTE: NO CONTRIBUTORY NEG DEFENSE!

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STRICT PRODUCTS LIABILITY
DAMAGES

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No recovery for economic loss. Recovery for pain and suffering.

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PRODUCTS LIABILITY
EXPRESS WARRANTY:

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MUST BE OBVIOUS. Express warranty requires an affirmation of fact made by seller to Buyer relating to the goods which is the basis of the bargain.”
1. Affirmation of fact must be misrepresentation of material fact concerning character or quality of the product.
2. Representation must be made to the public by label or advertising.
3. Justifiable reliance on representation must influence the transaction.

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PRODUCTS LIABILITY
IMPLIED WARRANTY:

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“A commercial seller is liable to an ultimate user if the product fails to satisfy the implied covenant of fitness for intended purpose.” 1. Implied to every sale of goods is a warranty that the goods are of a quality equal to that generally acceptable among those who deal in similar goods; and 2. Goods are fit for the ordinary purpose for which they are foreseeably used.
PRIVITY: UCC 2318(a) and in the majority of states, privity is required between the seller and the injured party. This theory is extended to the purchaser and his family and is sometimes extended to guests in his home.
DEFENSES: 1. Assumption of Risk, 2. Contributory Negligence: after discovery of defect, P acts unreasonably, 3. Timely Notification of the Breach under UCC: Buyer must notify the Seller within a reasonable time after s/he discovers or should have discovered the defect or Buyer’s claim will be barred.

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STRICT TORT LIABILITY
WILD ANIMALS:

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Possessors of wild animals (even if tamed) are strictly liable for injuries to others if injury occurs as a result of the animals’ dangerous propensities.

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STRICT TORT LIABILITY
DOMESTIC ANIMALS:

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(Dogs, cats, birds, cows, horses). Possessors of domestic animals will not be liable for the animal’s first bite unless the owner knew that the animal had dangerous propensities. California View: Pet owners are strictly liable for injuries caused. There are no “free bites” in California.

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STRICT TORT LIABILITY
INHERENTLY DANGEROUS ACTIVITIES:

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3 Prong Test: For SL to attach, the three requirements must be met:
1.Activity Poses Serious Risk Of Harm To Persons Or Property and
2.Cannot Be Performed With Complete Safety.
3.Activity Not Usually Conducted In That Area.

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NUISANCE

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There are two types of nuisance causes of action: public and private. The facts are such that the P can sue under either theory.

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PUBLIC NUISANCE:

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P can sue D on the theory of public nuisance if s/he can allege that the damages s/he suffered were different in kind than those suffered by the general public.”
Definition: An act which substantially and unreasonably interferes with the health, safety, or property rights of the community. Recovery for public nuisance is available only if a private party has suffered some special injury not suffered by the public at large.

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PUBLIC NUISANCE: SUBSTANTIAL INTERFERENCE:

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Interference with P’s land must be substantial (offensive, inconvenient, or annoying to an average reasonable person in the community not abnormally sensitive).

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PUBLIC NUISANCE:
UNREASONABLE INTERFERENCE:

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Interference is unreasonable if the gravity of the harm outweighs the utility of D’s conduct. BALANCING TEST: Court will balance the risk of harm D’s activities create to the community AGAINST the utility of D’s conduct to the community.
Bar hint: Factors: # of people employed by D, the impact its operations have on the community as a whole, and the harm to the community if D’s operation is shut down or activities are curtailed. Ct will look at the nature of each party’s use of their land and the ability of the parties to bear the loss by shifting costs. Court will consider which party can better bear the loss by shifting it to insurance or business expenses.

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PUBLIC NUISANCE:
SPECIAL INJURY:

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Plaintiff must suffer a special injury unlike that of the other residents in the community. In certain circumstances, a private party can assert a public nuisance cause of action if s/he has suffered a “special injury” unlike that suffered by other residents of the community as a whole. “Here, P has suffered a special injury unlike that of the other residents in that ______. Only X number of other homeowners were similarly injured.”

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State on the Bar after analysis of public nuisance:

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“If for some reason the court holds that the P has not suffered special injury and thus does not allow P to proceed on a theory of public nuisance s/he should still be able to assert a cause of action based on private nuisance because D substantially interfered with the use and enjoyment of P’s land.”

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PRIVATE NUISANCE:

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A substantial, unreasonable interference with P’s use and enjoyment of her land. Note: P only has to show interference with use and enjoyment of her land to recover. S/he does not need to show harm to the community as a whole. Court uses a balancing test – balancing the harm to P’s land against the utility of D’s conduct.
DEFENSES: Coming to the Nuisance: P has purchased land and moved in next to the nuisance (after nuisance was already in existence) – a form of assumption of risk. Also, which party began use of land first.

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MOST HEAVILY TESTED

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1. negligence, 2. defamation, 3. invasion of P, 4. Strict Products Liability, 5. Nuisance.