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100 Cards in this Set
- Front
- Back
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Tort definition
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A civil wrong for which a victim receives compensation in the form of damages.
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Tort v. Crime
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Differences
1. Purpose Tort- Compensation Crime- Punishment 2. Standard of Proof Tort- Preponderance of the Evidence Crime- Beyond a reasonable doubt 3. Interests Violated Tort- Individual's Interest Crime- Society's interest 4. Procedural Rules Tort- Civil Rules of Procedure Crime- Criminal Rules of Procedure Similarities -Compensation (known as restitution) to the victim of a crime is frequently part of an offender's sentence. -Duties and obligations are imposed by law without the necessary consent or awareness of the individual and owed to society at large Intentional torts may be both a tort and a crime |
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Tort v. Contract
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Differences
1. Duties Assigned Tort- Imposed by law Contract- By parties' consent 2. Obligations Made To: Tort- Society in general Contract: Specific Individuals Similarities- The law may impose special duties depending on one's relationship to another. Tort duties may coincide with duties set forth in a contract. Some quasi-contractual duties (ex: the obligation to act in good faith) are imposed by law without the consent of the parties. |
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Theoretical Bases for Tort Law
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1. Intentional
2. Negligence 3. Strict Liability (growing) |
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History of Torts
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-Arose during the time of William the Conqueror
-Action in trespass and trespass on the case |
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Action in Trespass
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-Required a showing of direct force
-Tortfeasor was liable regardless of its intent or state of mind -Ex: If someone throws a log and it hits someone at the time. -Led to trespass on the case -Became intentional torts |
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Trespass on the Case
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-Allows recovery in the absence of force or in the application of indirect force
-Ex: If someone throws a log and it doesn't hit anyone at the time, but later someone trips on it. -Became negligence |
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Transition from Action in Trespass and Trespass on the Case to Intentional Torts and Negligence
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In 1850, there was a case in which the defendant was trying to break up a dog fight with a stick and unintentionally poked the plaintiff in the eye with the stick.
-C.J. Shaw was able to change the law by stating that the prior law was dictum and non-binding on the court. He distinguished between liability with fault and liability w/o fault rather than direct between indirect harm. -Change in tort law took hold so rapidly b/c of railroad construction during Industrial Rev during which they used workers up so rapidly that there would be constant lawsuits if both direct and indirect harms constituted a civil wrong. |
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Discovery
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The discovery process is extremely important in tort law.
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Intent- definition
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Requires that someone does something with the purpose of bringing about a particular consequence or knows with substantial certainty that a particular outcome will occur.
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Substantial certainty- definition
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Doesn't require complete certainty, but requires that something is more than highly likely.
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Transferred-Intent Doctrine
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The defendant's intent toward one person is transferred to the person who is actually injured as a result of the defendant's conduct or the defendant's intent to commit one kind of tort is transferred to the kind of tort that it in fact commits.
-intent can only be transferred from one third party to another third party, not from a third party to the defendant itself. |
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Battery- Definition
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Intentional infliction of harmful or offensive contact.
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Battery- Elements
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Elements:
1. Intention to commit harmful or offensive contact 2. Harmful or offensive contact occurs directly or indirectly. Direct: the defendant makes contact with the plaintiff's body or anything attached to or identified with the body. Indirect: The defendant makes contact with the plaintiff's body or with anything attached to or identified with her body using an object (ex: a thrown shoe) or other living thing (ex: a dog) -Doesn't require that the defendant intend to harm the plaintiff. If the defendant intends to make contact with the plaintiff, whether it is offensive or harmful, and harmful or offensive contact occurs, it is battery. -The plaintiff need not be aware of the contact at the time it occurs. -The defendant is liable for any consequences of the battery regardless of how unforeseen they may be. |
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Battery- Purpose
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-To protect individuals from undesired and unpermitted contact or invasion of their body.
-Includes contact with any part of a person's body or anything attached to or identified with the body, like a purse or a car. |
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Harmful- definition
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Requires evidence of physical harm (ex: blood, bruises, broken bones, etc.)
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Offensive- definition
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Offends a person with a reasonable sense of dignity
-Offensive contact was added to the definition of battery in the 19th century. |
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Assault- definition
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Intentional causing of apprehension of harmful or offensive contact.
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Assault- elements
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1. Intent to cause apprehension of imminent harmful or offensive contact
2. Plaintiff is in apprehension of an imminent harmful or offensive contact -Can be intent to commit battery or intent to frighten the plaintiff w/ no intent to make actual contact |
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Apprehension- definition
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-An understanding or awareness that the defendant has the present apparent ability to carry out the harmful or offensive contact
-Requires apprehension of harmful or offensive contact with the plaintiff and not with some other person, even if it is a relative. |
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Assault- doctrine of transferred intent
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-Applicable to assault.
-If the defendant intends to commit battery or frighten one person and another thinks that he may be harmfully or offensive contacted, the defendant will be liable to that other person. |
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Threat- definition
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-Threats of future harm aren't assault b/c the apprehension must be of imminent harmful or offensive contact
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False Imprisonment- definition
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Intentional confinement of another.
-Includes restraint in an open street or in a moving vehicle -Plaintiff must not have access to an alternative route -Alternative routes must not be routes that require the plaintiff to subject herself or her property to any risk of harm in an effort to extricate herself from her confinement. |
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False imprisonment- elements
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1. Intent to confine another.
2. Actual confinement of another. 3. Awareness of the confinement on the part of the plaintiff. -Doesn't require that the plaintiff is aware of her confinement at the time she is confined. As long as she becomes aware of her confinement while she is still confined, it is false imprisonment. -Includes restraint in an open street or in a moving vehicle |
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False imprisonment- doctrine of transferred intent.
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The doctrine of transferred intent is applicable in false imprisonment.
If a defendant intends to confine one person and in fact confines another and the other person is aware of her confinement, the defendant will be liable to the other person for false imprisonment. |
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Confinement- definition
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-Requires the defendant to impose boundaries on a plaintiff's movement
-Doesn't require physical force. -If a defendant imposes restrictions on a plaintiff's freedom of movement whether it is by physical force or by verbal or nonverbal threats of harm directed against the plaintiff or another person, it is confinement. -Threats must be of imminent harm and thus, threats of future harm are insufficient for false imprisonment. |
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False imprisonment- law enforcement
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-False imprisonment most often occurs in the context of law enforcement.
-A valid defense to false imprisonment is a law enforcement officer's assertion that he acted reasonably and in good faith when exercising his legal right to make an arrest or to detain someone even when the arrest or detention later turns out to be unlawful. |
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False imprisonment- shoplifting
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-In most states, a merchant who reasonably believes that a customer has stolen property has a right to detain the suspect individual for a short period of time for the purpose of investigation as long as the detention:
1. isn't unreasonably long 2. doesn't subject the plaintiff to bullying or insult 3. doesn't subject the plaintiff to public accusations of shoplifting 4. isn't used to coerce payment or the signing of a confession 5. takes place on the defendant's premises -a merchant's right of detention is lost once the plaintiff leaves the premises |
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Infliction of Mental Distress- definition
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Intentional infliction of severe emotional or mental distress as a result of extreme and outrageous conduct or if committed recklessly, with deliberate disregard of the emotional distress that the plaintiff is very likely to suffer.
-Recklessness must rise above the level of negligence. |
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Assault- purpose
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-To protect an individual's mental peace from an imminent and offensive or harmful contact.
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False Imprisonment- purpose
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-To protect an individual's freedom of movement.
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Infliction of Mental Distress- elements
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1. Intent to cause severe emotional distress or deliberate disregard of the emotional distress that the plaintiff is likely to suffer.
2. Plaintiff must suffer severe emotional distress. 3. Defendant's conduct toward the plaintiff is outrageous and extreme. |
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Severe emotional distress- definition
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Significantly affects other aspects of the plaintiff's life for an extended period of time after the infliction.
-At the very least, the plaintiff must have sought medical attention. However, the seeking of medical attention alone is not necessarily sufficient. -If the plaintiff's emotional distress is a result of her peculiar sensitivities or vulnerabilities, the defendant will only be liable if she knows of these sensitivities or vulnerabilities. |
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Outrageous and extreme conduct- definition
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-Must be considered intolerable in any civilized society and must exceed all possible bounds of decency.
-Factors include: 1. The power dynamic and relationship of the parties 2. Sensitivities of the plaintiff that the defendant knows about and exploits 3. Repetitiveness of the conduct -Mere insults and petty manipulation of others are insufficient for this tort. |
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Infliction of mental distress- doctrine of transferred intent.
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-Doctrine of transferred intent doesn't apply to the infliction of mental distress on a different person than the person on whom the defendant intended to inflict mental distress or the infliction of mental distress when the defendant had intended to commit a different kind of tort.
Exception: when the defendant's conduct is directed against a member of the plaintiff's immediate family and the defendant is aware that the plaintiff is present at the time of the conduct. -Purpose is that applying this doctrine would open the courthouse doors to all those who suffered emotional distress as a result of viewing tortious acts being intentionally committed against others. |
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Infliction of mental distress- those in public service
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-Common carriers and public utilities are held to a higher standard of conduct than the rest of the population and can be held liable for conduct that would not be considered actionable when committed by an ordinary citizen like highly insulting language
Purpose- stems from a concern that those who provide such services not be rude to their customers b/c customers have little choice in their providers. |
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Intentional Torts Against Persons
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1. Battery
2. Assault 3. False Imprisonment 4. Infliction of Mental Distress Common thread: Intent |
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Intentional Torts Against Property
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1. Trespass to Land
2. Trespass to Chattels 3. Conversion Common Thread: intent |
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Trespass to Land- definition
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Intentionally entering or wrongfully remaining on another's land
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Trespass to Land- elements
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1. Intent to make direct or indirect contact with the plaintiff's land or knowledge with reasonable certainty such contact will occur as the result of an action or conduct.
2. Direct or indirect contact with the plaintiff's land. Indirect contact- entering the plaintiff's land not with the defendant's body but with an object or living thing that is not part of the plaintiff's body. Ex: pellets from a BB gun -Doesn't require intent to harm property -If a defendant trespasses on another's land thinking it is his own or believing he is entitled to enter the land, he is still liable for trespass b/c in both situations, he intended to make contact w/ the land. |
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Trespass to Land- contact
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-Landowners own the airspace above their property below certain minimum flight altitudes (250 ft.) so damages cannot be awarded for any flights occurring above these altitudes.
-Trespass is also committed when a defendant who has permission to enter a plaintiff's land refuses to leave when the permission is revoked or refuses or neglects to remove something from the plaintiff's land when she is supposed to. |
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Trespass to Land- liability
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A defendant is liable for almost all consequences of his trespass, no matter how unforeseeble these consequences may be.
-In some courts, the defendant is liable for any emotional distress suffered by the plaintiff as a result of the trespass even if the plaintiff suffers no physical harm. |
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Trespass to Chattels- definition
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Intentional interference with another's use or possession of chattels
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Chattel- definition
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Personal property that is visible, tangible and movable
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Trespass to Chattels- elements
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1. Intent to make physical contact with the plaintiff's chattels.
-Intent to cause harm to the chattel is not necessary. -A defendant who mistakenly believes the chattel to be his own is still liable b/c he still intended to make physical contact with the chattel and made physical contact with the chattel that resulted in interference with the owner's and possessor's use or possession of the chattel. -Length of interference is irrelevant. Recovery will be allowed even if the interference is only temporary. 2. Physical contact with another's chattel that deprives that person of use or possession of his chattel. -The owner of the chattel need not be in possession of the chattel at the time of the interference. Both the owner and possessor are entitled to sue. 3. Actual harm to the plaintiff as a result of the defendant's intentional interference with the plaintiff's use or possession of chattels -The defendant has the right to return the goods at the time the suit is brought to mitigate the plaintiff's damages. |
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Conversion- definition
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Intentional interference with another's use or possession of chattel to the extent fairness requires that the defendant pay the full value of the chattel.
-Doesn't require intent to cause harm to chattels or to the plaintiff's possessory rights. -An innocent mistake on the part of the defendant is sufficient because the defendant still intended to exercise control over the plaintiff's chattel. -Title of the goods is deemed to have transferred from the plaintiff to the defendant because of the defendant's interference and as a result, the defendant is required to pay the full value of the property. -The plaintiff need not be the owner of the chattel, but can be the person in possession of the property at the time of conversion. -Removal of a plaintiff's property or transfer of a plaintiff's property to one who is not entitled to it is conversion if it creates a relatively serious interference with the plaintiff's right to possession and control of her property. |
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Factors taken into consideration in determining whether a defendant's interference with plaintiff's property rises to the level of CONVERSION
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1. The extent and duration of the defendant's exercise of control over the property.
2. The extent and duration of the resulting interference with the plaintiff's right to control. 3. The defendant's intent to assert a right inconsistent with the plaintiff's right of control. 4. The defendant's good faith. 5. The harm done to the chattel. 6. The inconvenience and expense caused to the plaintiff. |
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Conversion- intangibles
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Conversion suits can be brought for intent to interfere with a plaintiff's use or possession of intangible property and subsequent interference with a plaintiff's use or possession of intangible property if the intangible rights are linked to some kind of document. (ex: stock certificates, promissory notes)
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Defenses to Intentional Torts
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1. Consent
2. Self-defense 3. Defense of property 4. Regaining possession of chattels 5. Reentry on land 6. Public necessity 7. Private necessity Mistake in and of itself is not a valid defense to intentional property torts. |
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Consent- definition
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If a plaintiff who has the capacity to consent to interference with his person or property voluntarily does so, either explicitly or implicitly, the defendant will be liable for such interference.
Implied: Consent may be implied from the plaintiff's conduct or from any customs surrounding such conduct. -Determined by objective manifestations and not by the plaintiff's subjective mental state (purpose is that defendants are not expected to be mind readers.) -Question is whether a reasonable person in the defendant's shoes would have believed that the plaintiff consented to an invasion of his person or property. |
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Capacity to consent
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-Consent is not a defense if the plaintiff is incapable of or incompetent to give consent (intoxicated, mentally incompetent, underage, etc.)
-Consent to emergency action is implied if no indication exists that a person would have refused to give consent and if a reasonable person would have consented under like circumstances -If a plaintiff consents only b/c she is mistaken about some material fact, the consent will still be considered effective. If the defendant either knows or or induces the plaintiff's mistake the consent is ineffective. |
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Consent in medical cases in which the plaintiff alleges that the doctor didn't adequately inform her about the risks in a proposed treatment
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-Questions of mistaken consent most often arise in this context.
-If the doctor fails to disclose the consequences of a procedure that he knows will definitely follow from the treatment, consent is ineffective. If the doctor fails to mention a minor risk that may or may not be a consequence of the treatment, the consent is effective. |
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Consent in the context of criminal acts
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-The majority position is that consent to a criminal act is ineffective
-A minority and Restatement position is that consent to a criminal act is effective unless the crime is intended to protect a class of persons against their own poor judgment and the plaintiff is a member of that protected class (i.e. statutory rape) |
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Consent- voluntariness
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Consent because of duress that creates an immediate and serious threat to the plaintiff or another is involuntary.
-Threats of future harm or threats involving economic duress are insufficient to render a plaintiff's consent involuntary. |
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Consent- scope
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A defendant must not exceed the scope of the plaintiff's consent. A defendant will be liable for his act if he substantially deviates from what a plaintiff consented to.
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Self-defense- definition
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A plaintiff is entitled (privileged) to use reasonable force to protect himself from another against imminent harm if he reasonable believes that is necessary to do so. (most courts require that any person being aided must be privileged to act in self-defense.)
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Self-defense- elements
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1. The defendant was privileged to use force to defend herself.
2. The defendant used a reasonable degree of force. -Defense may be against any threatened harmful or offensive bodily contact or any threatened confinement. -Doesn't matter whether the threat posed is intentional or negligent. -Doesn't require the defendant to have suffered harm. |
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Privilege- definition
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-the defendant reasonably believes that a threat exists, even if she is wrong.
-purpose: self-preservation is the first law of nature. |
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Reasonable degree of force- definition
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Force that is reasonable necessary to protect the defendant against a threatened harm.
-Threat cannot be words alone unless they are accompanied by some type of hostile act. -The threat must appear to be of imminent, and not future, harm. -The defendant cannot believe that she has a reasonable alternative to the use of force to protect herself from the impending danger. -Force cannot be used against someone who is helpless. -Force cannot be used to justify any retaliation for a previously committed tort. -Cannot be deadly force unless the defendant is in danger of death or serious bodily harm herself (threat of rape works, but threat of trespass to chattels does not) Deadly force: force likely to cause death or serious bodily injury -Based on an objective standard in that the conduct of the defendant is compared to a reasonable person under similar circumstances. |
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Defense of Home
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Requires a showing that the defendant reasonably believed that he was in imminent danger of death or serious bodily harm and that no lesser degree of force was sufficient to prevent the harm.
-Some courts allow a defendant to use force even when he can safely retreat -purpose is to pay homage to individual honor and dignity -Other courts require a defendant to retreat if he can do so safely -purpose is the sanctity of human life -No court requires someone who is attacked in his own home to retreat. -Basis is that one's home is one's castle. |
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Prevention of Felonies (Restatement)
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-Deadly force may be used to prevent certain types of felonies
Ex: Robbery, kidnapping and rape -Defendant must believe that the felony cannot otherwise be prevented the type of harm threatened must involve death or serious bodily injury. -Defendant is entitled to use force even though she is not personally endangered. |
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Defense of Others
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-Reasonable force can be used to protect others, including complete strangers, when the defendant reasonably believes that the circumstances would support a claim of self-defense and that his intervention is immediately necessary for the protection of another person.
Majority position: The intervener steps into the shoes of the person he has sought to champion so if that person is not privileged to act in self-defense, the intervener is precluded from claiming the privilege of self-defense. Minority and Restatement position: An intervener can claim a privilege of self-defense as long as he reasonably believes the person he is aiding would have been privileged to use self-defense. |
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Defense of Property- definition
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A defendant is entitled to use reasonable (not deadly) force to protect his property against imminent harm if he reasonable believes it is necessary to do so and he verbally demands that the intruder stop first (if circumstances permit).
-Exception: A defendant doesn't have to issue a verbal demand to stop if he reasonably perceives that the request to stop will be useless of that the harm will occur immediately. |
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Defense of property- reasonable degree of force (definition)
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A property owner may only use that degree of force that is reasonably necessary to protect the property
-some states, i.e. Texas, allows deadly force to be used against property |
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Defense of property- mechanical devices
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A property owner may use a mechanical device only if she could use a similar degree of force if she were present when the intruder entered.
-Because such devices are usually considered deadly force, they may be used only to prevent death or serious bodily harm or the commission of certain felonies. -Established in Katko v. Briney (use of a springgun to protect the defendant's unoccupied farmhouse from burglaries resulted in severe injury to the plaintiff) -If an owner intends to use some non-lethal mechanical device, he must post some type of warning that will put others on notice that the device is present. Even a warning will not suffice in the case of a mechanical device that constitutes the use of deadly force. |
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Regaining Possession of Chattels- definition
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A property owner is entitled to use reasonable force to regain possession of chattel if the chattel was wrongfully taken the owner is in fresh pursuit.
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Reentry on Land- definition
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In some states, a land owner may use reasonable force to reenter his land, although the majority of courts deny that right to landlords attempting to evict tenants.
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Public necessity- definition
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A defendant may harm the property interest of another when necessary to prevent a disaster to the community or to a substantial number of people. No reimbursement to the plaintiff is required.
Perrysburg v. Toledo Edison Co: A utility company may be required to relocate its lines at its own expense if the relocation is demanded by public necessity. |
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Necessity
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-Justifies the defendant's harming of the plaintiff's property in emergencies
-Unlike other defenses, the defendant is privileged because of unusual circumstances that justify the defendant's actions and not because of some wrongdoing on the part of the plaintiff. |
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Private Necessity- definition
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A defendant may harm the property interest of another if necessary to protect his own interests or property interests or those of a few private citizens b/c no less damaging way to prevent the harm exists. Reimbursement of the plaintiff is required if there is substantial harm to the plaintiff's property.
-Unlike public necessity, the danger need not be severe. -In determining whether the privilege of private necessity can be invoked, the harm to the plaintiff's property must be weighed against the severity and the likelihood of danger the defendant is seeking to avoid. If the defendant causes no substantial harm to the plaintiff's property, she will not be liable for trespass. If the defendant causes actual damage to the plaintiff's property, the privilege will be limited and the defendant will be required to pay for the damages caused. -The person whose property has been harmed has no right to use reasonable force to prevent the exercise of the privilege and one who resorts to retaliatory force will be liable for any damages she causes. |
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Negligence- definition
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Conduct that creates an unreasonable risk of harm to another.
-Requires that a defendant is under an obligation to protect the plaintiff and fails to fulfill that obligation. |
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Duty- definition
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A legal obligation to act reasonably and arises out of our relationship to others.
-Exists only when a direct relationship between the plaintiff and defendant or the defendant and a third party whose negligence causes injury to the plaintiff, exists, though that relationship need not be a personal or an ongoing one. |
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Act reasonably- definition
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The defendant must exercise the degree of care that any reasonable person would exercise under similar circumstances.
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Relational approach to negligence
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The nature of the relationship between the parties determines whether the defendant has a duty to protect the plaintiff
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Foreseeability approach to negligence
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A defendant owes a duty only to those persons the defendant could reasonably foresee would be endangered.
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Possessors of Land
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-Possessor of land is focus of protection under common law
-Purpose of limiting liability of possessors was to encourage full utilization of land, unhampered by burdensome legal obligations to others. -The tenant, not the landlord, usually benefited from common law rules. -The duty of care owed by a possessor was determined by the class into which the plaintiff fell: trespasser, licensee or invitee. |
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Trespasser
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Definition: One who had no right to be on the defendant's land.
-Possessors must refrain from willfully or intentionally injuring trespassers. -A trespasser assumes the risks inherent in entering the land and is responsible for his own safety. -A possessor owes no duty of care to a trespasser to make the land safe or to protect the trespasser in any way. -If the possessor is pursuing dangerous activities on her property, she need not warn the trespasser of such dangers or avoid carrying on the activities. Exceptions: Some duty of care is owed when the plaintiffs are: 1. Trespassing children 2. Individuals known to be trespassers 3. Rescuing someone in danger as a result of the defendant possessor's negligence 4. Trespassing on a very limited portion of the possessor's land |
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Attractive Nuisance Doctrine- definition and basis
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Definition: A possessor is liable if he maintains a dangerous condition on the land that induces children to enter the premises because it is an enticing item on which it play.
Ex: Construction site Basis: Children who are trespassers should be entitled to greater protection than adults. |
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Attractive Nuisance Doctrine- Elements
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1. The possessor has reason to know that the condition is on a place on the land where children are likely to trespass.
2. The possessor must have reason to know of the condition and to know that it poses an unreasonable risk of serious injury or death to trespassing children. 3. Because of their youth, the children must not have discovered the condition or realized the danger posed by coming into the area made dangerous by the condition. 4. The benefit to the possessor in maintaining the condition in its dangerous form must be slight in comparison to the risk posed to the children. 5. The possessor must fail to use reasonable care to eliminate the danger or to protect the children. |
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Subjectivity of Attractive Nuisance Doctrine
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Age, experience and intelligence of the child may determine whether the attractive nuisance doctrine applies.
-The question is whether the child is able to appreciate the risks of the condition involved. |
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Attractive Nuisance Doctrine- natural v. artificial condition
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-If the condition is natural, the courts are less likely to allow a child to recover b/c
1. it is prohibitively expensive to protect children from a natural condition such as a lake 2. Children are more likely to be familiar w/ the risk involved with a natural condition. |
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Attractive Nuisance Doctrine-Reasonable means to prevent harm to children
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-Doesn't require possessor to make his premises childproof
-Doesn't require possessor to inspect for dangerous conditions for which she would otherwise be unaware -In many cases, posting a warning is sufficient |
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Rescue Doctrine ("danger invites rescue" doctrine)- definition and basis
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Anyone who causes harm to a person or property may be liable to one who is injured in an effort to rescue the imperiled person or property.
Basis: the rescuer would not have been injured if not for the negligence of the tortfeasor. -Prevents a plaintiff from being found contributorily negligent for voluntarily placing herself in a dangerous situation in order to save another. -Requires the threatened danger to be real, imminent and require immediate action if the victim is to be saved. -The defendant's conduct must be negligent or intentionally tortious |
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Known Trespassers- definition and basis
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Once a possessor knows that a particular person is trespassing on his property, he owes a reasonable duty of care to that person.
-Duty is clearer when the danger to the trespasser arises out of something that the possessor has done, but according to the Restatement, it should still apply when the condition is natural. Basis: The possessor's continuing tolerance of the trespass constitutes implied permission to use the land, elevating the trespasser to the status of a licensee. -As a practical matter, defendants often don't attempt to thwart trespassing b/c to do so would be expensive and probably unproductive. -When a possessor knows or has reason to know that trespassers are in dangerous proximity to a hazard and has reason to believe that the trespasser will either not discover the hazard or not realize its hazardous nature, the possessor has a duty to use reasonable care to warn the trespasser of the hazard. |
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Limited Trespass- definition
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Possessors of land owe a limited duty of care to frequent trespassers who use only a very limited area of their land.
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Licensee- definition
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Person who has the possessor's consent to be on the property, but does not have a business purpose for being there. Most are social guests.
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Licensee- duty
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A possessor has a duty to warn a licensee of any dangerous conditions if the possessor is aware of that condition and should reasonably anticipate that the licensee may not discover it.
-The most frequently litigated issue involves the obviousness of the hazardous condition and the warning that is required to prevent harm. -Ex: A warning that is adequate for an adult may not be adequate for a child b/c a peril that is obvious to an adult may not be obvious to a child. -A posted warning of danger is not sufficient when the possessor knows that a licensee is unable to read and the possessor may thus be required to use reasonable care to warn in some other way. -The possessor is under no duty to inspect for unknown dangers, but the courts are likely to find a higher duty of care if the possessor is carrying out activities on the land than if the danger arises out of some natural condition on the land. -Social guests in an automobile are owed the same standard of care as licensees on land- no duty of inspection. |
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Invitee- definition
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A person invited by the possessor onto her land to conduct business.
-Even if the plaintiff is not engaged in business at the time of his injury, he is considered an invitee as long as he has a general business relationship w/ the possessor. (established by Campbell v. Weathers. Plaintiff who was a longstanding customer of the defendant fell into an open trap door in a dark hallway when going to the back of the building to use a toilet on a day when he had made no purchases...court said that anyone who goes into a store w/ the intent of doing business at the present or in the future is an invitee) -A social guest does not rise to the status of an invitee even when performing an incidental service for her host because the host must gain some type of economic benefit before the guest can be considered an invitee. -A salesperson who makes an unsolicited call to a private home is not an invitee unless he is invited in, but a salesperson who calls on a business where she reasonable believes that door-to-door salespeople are typically received is considered an invitee. |
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Public invitee
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One who is invited and enters the land for the purpose for which the land is held open to the public.
-The visitor need not pay admission to be considered a public invitee. |
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Business invitee
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One who enters the land for a purpose connected with the business dealings of the possessor.
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Invitees in slip-and-fall cases
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-The majority of "slip-and-fall" cases involve invitees.
-The question is whether the possessor should be held liable for a customer's slip and fall caused by an unreasonable dangerous condition. -Plaintiff must show that the possessor either caused the hazard or was aware of the condition and failed to take reasonable measures to remove the hazard. |
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Losing Invitee Status
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-An invitee may become a licensee or trespasser if he goes to parts of the premises that extend beyond his invitation unless he reasonably believes that that part of the premises is open to the public.
-If a visitor receives explicit authorization from the possessor to go onto a private portion of the premises, she will become a licensee if she enters purely for her own benefit. (established in Lerman Bros. v. Lewis when a customer received permission to enter a room reserved for employees to look for a particular saleswoman and fell down the stairway when she entered the room...the court considered her a licensee who was required to take the premises as she found them b/c she entered the room for her own benefit and w/o the invitation of the possessor although she had permission to enter) -Operative fact is reasonable belief of the plaintiff -Invitee also loses status if she stays on the premises longer than is reasonably necessary to conduct her business or when her purpose becomes social rather than business |
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Invitee- duty of care
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A possessor owes a higher duty of care to a invitee than to a licensee or trespasser
-Has a duty to inspect his premises for hidden dangers and to use reasonable care when doing so -No duty to ferret out all hidden dangers -May be liable for a dangerous condition resulting from faulty construction or design even if the condition existed before he came into possession of the property. |
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Invitee- reasonable care
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-The definition of reasonable care varies depending on the use of the premises. Ex: Higher duty of inspection for a shopping mall than for a private home.
-In some situations, the use of a warning of a dangerous condition will meet the requirements of reasonable care, but in other situations affirmative action will be required. -Even if an invitee is aware of and appreciates the danger involved, the possessor may be obligated to take reasonable steps to reduce the danger. (Wilk v. Georges, although defendant posted sign warning customers of the especially slippery and dangerous condition of the walkways on that particular day, the court found that the defendant should have anticipated an unreasonable risk of harm to the plaintiff despite the posted signs.) -Reasonable care may require a possessor to exercise control over third persons in some cases (ex: a tavern owner may be required to prevent his patrons from becoming so intoxicated that they cause injury to others). |
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Outside the Possessor's Property
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-Possessors are generally found liable for conditions that pose an unreasonable risk of harm to persons outside the premises, especially when the hazardous condition is artificially created by the possessor (including man-made structures, additions to the land and alterations to the land.)
-Courts are less likely to impose liability when the condition is a necessity and an above-the-ground object like a telephone pole or a mailbox. -A possessor is under no duty to remove a natural hazardous condition or to protect others from it even if it poses an unreasonable danger of harm to persons outside of the property. -In urban and suburban areas, the courts have obligated possessors to prevent trees from exposing people outside the premises to an unreasonable risk of harm, to remove rotten trees and to inspect to discover potential defects in trees. -In rural areas, no duty to remove rotten trees or to inspect for defects has been imposed. |
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Landlord/Tenant Liability
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-A tenant who is in possession of property and members of the tenant's household, those in his employ and those working the land for him as independent contractors are entitled to the protection of common law rules.
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Tenant's Duties
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Like a landowner, a tent is liable for the injuries to an invitee resulting from a defect that could have been discovered using reasonable care even if the tenant didn't discover it in fact.
-This liability doesn't extend to common areas like elevators, stairwells and corridors if the building is an office building or a dwelling with multiple tenants. |
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Landlord's Duties
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-A landlord is liable to a tenant's invitees and licensees for those dangers that the landlord knows or should know about and that the tenant has no reason to know about.
-Doesn't require landlord to inspect the premises. -Purpose is to protect the tenant from hidden dangers of which the landlord is aware of should reasonably anticipate. -The landlord has an affirmative duty to inspect the premises to find and repair any damages if he has reason to believe that the tenant is planning on holding the premises open to the public. -Anyone injured as a result of a landlord's breach of his covenant to repair can sue him if the plaintiff can show that the landlord failed to use reasonable care in performing his contractual duties and fails to correct a condition within a reasonable time after being notified of it. -Even if a landlord has no contractual obligation to perform repairs, once he begins performance, he must do so reasonably. -If he does not do so, anyone on the premises w/ the tenant's consent who is injured as a result of the landlord's negligence will be allowed to recover against the landlord. -Reason is that if he initiates repairs and fails to complete them, he makes the situation worse b/c tenants are led to believe that the condition no longer exists. -If the tenant is aware that the repairs are incomplete or were done in a negligent manner, he and not the landlord will be held liable. -A landlord will usually be held liable for the negligence of an independent contractor that he has hired b/c a landlord can't delegate his responsibility to a third party. -A landlord has no duty to protect a tenant from criminal attack unless he has made an affirmative attempt to provide security or is has created or is responsible for a physical defect that enhances the risk of crime. -The warranty of habitability implied in residential lease agreements protects tenants against structural defects but does not require landlords to take affirmative measures to provide security against criminal attack. |
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Sellers of Land
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-A seller of land is released from liability once the buyer takes possession of the property generally.
-If the seller fails to disclose a dangerous condition of which she is or should be aware and she should realize the buyer will not discover, she will be liable to anyone injured as a result of that condition until the buyer has a reasonable opportunity to find and correct the defect, even if the buyer doesn't in fact discover it. -If the seller hides the defect or intentionally misleads the buyer into not looking for it, the seller will be liable until the buyer actually discovers the condition and has a reasonable time to correct it. -If the seller of a house is also its builder, some courts hold the seller liable for any injuries caused by defects in the house, analogous to product liability cases. |
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Common Law No-Duty Rule
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A defendant has no legal obligation to aid a plaintiff in distress unless a special relationship exists between the plaintiff and the defendant even when the defendant could assist the plaintiff without causing any harm to himself.
-Yania v. Bigan: The defendant was not held liable when he induced his friend to jump into a strip mine and refused to rescue him when it became apparent that he was drowning even though the defendant could have easily saved him. |
