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128 Cards in this Set
- Front
- Back
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Intentional Tort Prima Facie Case
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Act, Intent, Causation |
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Intentional Torts - Act
Intentional Torts - Capacity |
The Act required is a volitional movement by defendant.
Capacity is not an issue for intentional torts. Children, mentally insane are liable. |
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Intent – Intentional Torts
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Intent may be shown by either:
a. Specific Intent: The goal in acting is to bring about specific consequences. b. General Intent: The actor knows with substantial certainty that these consequences will result. or c. Transferred intent |
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Transferred Intent Applies to which torts:
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Battery, Assault, False Imprisonment, Trespass to land, Trespass to chattels.
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Transferred Intent
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Transferred intent: applies when D intends to commit a tort against one person but instead:
a. commit a different tort against that person b. commits the same tort as intended but against another person c. commits a different tort against a different person. |
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Causation (Intentional Torts)
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The results must have been legally caused by D's act or something set in motion by D. Causation is satisfied if D's conduct was a substantial factor in bringing about the injury.
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Battery - Definition
Battery - Offensive |
Rule: An act by the Defendant that intentionally causes a harmful or offensive contact to the Plaintiff’s person
• Offensive contact: the type of contact not permitted by a person of ordinary sensitivity. Violates a sense of reasonable dignity. Unwanted sexual touching is offensive. • Direct Contact: contact with P’s person or anything that P is holding or touching (hat, cane, plate), • Indirect contact: D sets into motion a force or instrumentality to cause battery (D poisons P, P gets sick hours later) • Damages – actual (need not be proven), nominal, punitive |
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Assault - Definition
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Rule: An act by the Defendant that intentionally causes a reasonable apprehension in the Plaintiff of immediately harmful or offensive contact with P's person.
• Words alone are insufficient, but can negate reasonable apprehension. • Apprehension should not be confused with fear or intimidation. Apprehension means having the knowledge not having fear or being intimidated. • P must be aware of D’s act, • Immediate - D must have present ability to commit act, future threats of harm not sufficient • Damages – actual (need not be proven), nominal, punitive |
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False Imprisonment
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Rule: An act or omission by D that intentionally confines or restrains the P to a bounded area
• P must know of the confinement or be harmed by it. • Sufficient acts of restraint: physical barriers, physical force, threats of force, failure to release, invalid use of authority. • Amount of time of confinement is irrelevant |
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Intentional Infliction of Emotional Distress
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Rule: Extreme or outrageous conduct by the Defendant that intentionally causes severe emotional distress
• Extreme and outrageous – conduct that exceeds all bounds of decency tolerated in a civil society. • Recklessness satisfies the intent requirement • Malicious conduct – conduct need not be malicious – a joker can cause IIED • P’s sensitivity – intent can be found if D knows of P’s sensitivity • Damages – Requires proof of actual damages (severe emotional distress) • Insults alone are not outrageous • Common carriers and innkeepers may be liable even for mere gross insults. |
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Intentional Infliction of Emotional Distress
Third Party Bystander |
• 3rd party Bystander may recover if 1) she was present during the act, 2) is a close relative of the P, and 3) D knew the 2 preceding facts.
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Intentional Infliction of Emotional Distress
Special classes of sensitivity |
Special classes of sensitivity include children, elderly people, and pregnant women.
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Trespass to Land:
Unintentional Entry onto land: |
Rule: An intentional act that brings about a physical invasion of P’s land
• D needs intent only to enter that land; he need not know that the land belonged to another. • Physical invasion must be by person or object. • Sight (lights), sound (loud music) and smell (boiling cabbage) does not constitute a physical invasion. • Physical invasion of air and subsurface is a trespass provided it's at a reasonable distance from the surface. Airliner flying overhead is beyond a reasonable distance. • Damages – actual (need not be proven), nominal • Unintentional Entry onto land - A person is not liable for trespass for negligent or reckless entries unless he causes damage to the land. |
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Trespass to Chattel
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Rule: An intentional act that brings about an interference with the P’s possessory interest in a chattel.
• Remedy: actual damages from harm to chattel or loss of use (if dispossession, rental value). Proof of damages required. • Interference – 1) inter-meddling with the property, 2) dispossession of property – depriving owner of use for certain time |
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Conversion
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Rule: An intentional act by D that brings about an interference with the P’s possessory interest in the chattel so severe as to warrant a forced sale.
• Interference – obtaining control and dominion • Damages: D must pay the fair market value of the chattel at the time of conversion or replevin. |
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Defenses to Intentional Torts
(11) |
a. Consent -express, implied in fact, implied in law (all)
b. Self-defense (B, A, F.I) c. Defense of others (B, A, F.I) d. Defense of property (B, A, F.I., TL, TC, Conversion) e. Shopkeeper’s privilege (F.I) f. Privilege of arrest (B, A, F.I) g. Necessity (private and public) (TL, TC, Conversion) h. Recapture of chattel (TL, TC, Conversion) i. Re-entry onto land (TL) j. Discipline |
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Consent
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• Express, apparent from custom and usage of P's conduct, or implied by law. • Consent by mistake – valid unless D knew of or caused mistake • Consent by fraud – invalid if fraud is regarding essential matter (not if re: collateral issue) • Consent by duress – invalid if obtained by immediate threats of force b. Implied in fact consent – consent that a reasonable person would infer from P’s conduct, custom and usage or public policy c. Implied in law consent – consent where action is necessary to save a life or other important interest in person or property: 1) P is so injured, unconscious or unable to grant consent and there’s no close relative to consent, 2) immediate decision is necessary, 3) there’s no reason to believe P wouldn’t have consented if he were able to, 4) a reasonable person in P’s position would have consented |
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Capacity to Consent:
Exceeding the scope of consent: |
Capacity to consent - minors, those who are mentally incompetent or intoxicated do not have the capacity to give valid consent
Exceeding the scope of consent – D is liable if he goes beyond the act consented to or does something substantially different. |
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Consent to an illegal act
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Consent to an illegal act:
a. Majority – consent to an illegal act is invalid b. Minority – consent may be valid, however, damages may not be awarded |
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Self Defense
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Rule: D may use reasonable force to prevent harm when there is a reasonable belief that a tort is being or about to be committed to him
• Force used: 1. Non-Deadly Force: the force that is reasonably necessary to prevent harm 2. Deadly force may be used if a life is at stake 3. Initial aggressor can’t use force to defend against a reasonable response to his aggression (can use only if response is with excessive force) • Duty to Retreat: 1) Majority – no duty to retreat, 2) Modern trend – one should retreat before using deadly force if it can be done safely – unless one is in own home |
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Defense of Others
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Rule: D may use reasonable force to defend another when there is a reasonable belief that a tort is being or is about to be committed on a 3rd party
• Force used: a. Reasonable force b. Whatever force D could have used in self-defense c. Deadly force may be used only if a life is at stake • Reasonable belief : a. Modern trend – D not liable for mistake as long as reasonably believed person could have used force to protect himself b. Older rule – “stepping into shoes of other”: D liable even if he made a reasonable mistake |
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Defense of Property
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Rule: D may use reasonable force when there is a reasonable belief that a tort is being or is about to be committed to his real or personal property.
• Request to desist must precede use of force unless it would be futile or dangerous. • Force used: a. Reasonable force - One may not use deadly force causing death or serious bodily harm such as spring/mechanical guns, electric fences, or vicious dogs. b. Deadly force can only be used when a person, not just property, is threatened. |
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Recapture of Chattels - (wrongfully Withheld)
D.E.F. |
Rule: An individual can enter another’s land to recapture chattel, as long as (i) demand is made, (ii) entry is made in reasonable manner, and (iii) reasonable force is used. (D.E.F)
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Re-entry onto Land - (to regain possession of land wrongfully withheld)
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Rule: There is no privilege to go onto land wrongfully withheld to force a tenant out.
• At common law one could use force to re-enter land but modernly one must resort to legal procedures to recover possession of real property. |
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Shopkeeper’s Privilege - (Detention for Investigation)
B.I.T. |
Rule: A shopkeeper has a privilege to reasonably detain an individual who he reasonably believes to be in possession of shoplifted goods.
Detainment must be: (B.I.T) 1. Reasonable belief 2. Reasonable investigation 3. Reasonable amount of time |
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Privilege of Arrest
Felony - Police Officer, Private Citizen Force allowed |
• By police officer - the officer must reasonably believe that a felony has been committed and that the person he arrests has committed it.
• By Private Citizen - The felony must have been committed and the citizen must reasonably believe that the person he arrests has committed it. • Force allowed - (for both) that degree of force reasonably necessary to make the arrest; deadly force only when the suspect poses a threat of serious harm. |
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Privilege of Arrest
Misdemeanor arrests Force allowed |
• The misdemeanor must be a breach of peace and committed in the arresting party's presence.
• Force allowed - That degree of force reasonably necessary to make the arrest, but never deadly force. |
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Public Necessity
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Rule: D may interfere with the real or personal property interest of another where it is reasonably necessary to prevent great harm to the public at large.
• Absolute privilege: a. Complete defense when property is destroyed in order to protect the public at large. b. No liability for damages unless a statute allows otherwise |
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Private Necessity
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Rule: D may interfere with the real or personal property interest of another where it is reasonably necessary to prevent great harm to the D or other private citizens.
• D will be liable for actual compensatory damages to other's property unless the act was to benefit the property owner. • No liability for nominal or punitive damages. • As long as emergency continues the P property owner cannot throw D off his land. |
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Discipline
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Rule: A parent or teacher may use reasonable force to control, train, or educate a child in their care.
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Defamation
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Rule: Defamation is a defamatory statement, of or concerning P, with publication to a third party, that damages the (living) P's reputation.
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Defamatory Statement
On its face With extrinsic facts Fact v Opinion |
Rule: An allegation of fact that tends to adversely affect the P's reputation.
• Defamatory “on its face” – when the statement standing alone is defamatory • Defamatory "with extrinsic facts" – If a statement is not defamatory on its face P may plead additional facts as inducement to establish defamatory meaning by innuendo. • Fact v. opinion: a. Statement of fact – defamatory b. Statement of opinion – defamatory if opinion is based on specific facts (the broader the facts, the more likely it is opinion) |
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• Who can be defamed?
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a. Only a living person can be defamed.
b. Corporation defamed in limited sense – usually trade disparagement |
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Of or Concerning Plaintiff
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P must establish that a reasonable person would understand that the defamatory statement referred to the P.
• Colloquium – when “of or concerning” is not clear on its face, P must introduce extrinsic facts to show that the statement could be reasonably interpreted by at least one other person as referring to P. |
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Group Defamation |
1. Small group – If a defamatory statement references all members of a small group then all have been defamed. 2. Large group – If a defamatory statement references a person in a large group then that statement is not actionable. 3. If the statement refers to some members of a small group P can recover if a reasonable person would view the statement as referring to the P. |
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Publication to a 3rd party
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Rule: Publication is an intentional or negligent communication to a third party of that defamatory statement.
3rd party must reasonably understand the statement. |
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Slander
Damages |
Rule: Slander is spoken defamation
• Damages – general damages are not presumed. • Damages must be economic in nature (special damages) – firing from a job, loss of business, customers are deserting business, loss of contract. Cannot rely on social harm damages such as being shunned |
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Libel
Damages |
Rule: Libel is written or printed publication of defamatory language.
• Damages for libel: • Majority – general damages are presumed and need not be proven. Special damages need not be established but P may prove pecuniary loss if he so wishes • Minority: libel per se – when the libelous statement is defamatory on its face, general damages are presumed libel per quod – when extrinsic facts are needed to prove that the libelous statement is defamatory, special damages must be proven first and then courts will presume general damages. |
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Slander per se
Damages |
Rule: Slander per se is spoken defamation concerning (i) committing a crime of moral turpitude, (ii) loathsome disease (leprosy and venereal disease), (iii) unchastity of a woman, or (iv) adversely reflect on one’s conduct in a business or profession.
• Damages are presumed - no need to plead and prove special damages |
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Libel v. Slander
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The more permanent, broadly disseminated and premeditated, the more likely the defamatory statement is libel.
Minority - TV or Radio broadcast is libel |
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Constitutional Defamation - Public Figure/Public Concern
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Public Figure/Public Concern - must also prove falsity of the statement and malice (fault) (knowledge of falsity/reckless disregard to truth).
1. Truth of the statement is presumed 2. If malice is shown damages are presumed for libel or slander per se |
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Constitutional Defamation - Private Figure/Public Concern
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Private Figure/Public Concern - must prove falsity of the statement and negligence regarding the falsity.
1. Where the defendant is negligent only actual injury damages are recoverable. 2. Where malice is found, damages may be presumed and punitive damages allowed. |
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Defenses for Defamation CAT
Affirmative Defenses (2) |
1. Consent (same as intentional torts)
2. Truth – (if matter is not one of public concern) D can offer evidence that statement was truthful). 3. Affirmative Privileges (absolute, qualified) |
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Defenses for Defamation
Affirmative Privileges - Absolute Privilege |
Absolute privileges (can never be lost) – arise based on identity or status of defendant:
a. husband and wife communicating with each other. b. Officers of the three branches of government engaged in official duties: i. judicial proceedings – statements made in all judicial proceedings that bear reasonable relationship to proceedings ii. legislative proceedings – remarks by either federal or state legislatures acting in official capacity iii. executive proceedings – statements by governmental officials exercising function of office that bear reasonable relationship to proceedings c. Members of the media for reports of public proceedings. |
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Defenses for Defamation
Affirmative Privileges - Qualified Privilege |
Qualified privilege (can be lost through abuse)
a. Reports of official proceedings b. Public Interest: • statements made to one acting in public interest • fair comment opinion regarding another’s acts in course of general public interest c. socially useful purposes – arises based on the reason for the statement – why the statement was said. This arises if there is a public interest in encouraging candor. i.e. Letters of recommendation or references, statements made to police or investigating officers a. D must speak in good faith – D must have a reasonable belief in the truth of the statement b. D must confine his statements to relevant matter. |
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Qualified Privilege can be lost where: |
1. The D knows the statement is false 2. The D is reckless as to the truth 3. The statement is published outside the context where the qualified privilege should apply. |
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Mitigating Factors for defamation
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1. no actual malice – evidence of no actual malice will mitigate were malice may be inferred.
2. retraction – will mitigate because shows lack of actual malice (refusal to retract may prove actual malice) 3. anger – may mitigate if D was provoked by P |
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Trade Libel
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Rule: A statement disparaging P’s business, product or services, for the purpose of persuading customers not to do business with the P.
Damages – special damages required. P must show loss of business or customers |
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Invasion of Privacy
4 Torts |
1. Appropriation of P's picture or name
2. Intrusion into seclusion 3. False light 4. Public Disclosure of private facts |
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Appropriation of P's Picture of Name:
Damages |
Rule: An unauthorized use of P’s picture or name for D’s commercial advantage
• Liability is generally limited to advertisements or promotions of products or services. • no contractual agreement with the celebrity (P) • Damages: 1. actual damages – reasonable value of P’s name or likeness 2. nominal damages 3. injunction – a court order to stop the ad or promotion |
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Intrusion into Seclusion
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Rule: prying or intruding into P’s privacy or seclusion that is objectionable to a reasonable person.
• The thing into which there is an intrusion must be private • P must be in a place where there is a reasonable expectation of privacy. i.e. at home, a hotel room. • There is no expectation of privacy for a person on a cell phone in a public place. • There is no requirement that D enters on to P’s property to commit an intrusion • Photos taken in a public place are not actionable |
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False Light
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Rule: False light exists where D attributes to P false or misleading facts highly offensive to a reasonable person.
• For liability to attach there must be publication • Malice is required if public matter. • The falsehood can be but need not be a defamatory statement. • There is no good faith defense for False Light. The P speaks at his peril. |
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Public Disclosure
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Rule: Public disclosure of private information about P that is highly offensive to a reasonable person
• Liability may attach even though the actual statement is true • Facts in question must be truly private or intimate in order to have a cause of action • Dual life fact pattern might not be actionable • Newsworthiness exception: publishing the President's medical exam results would be allowed as public interest. |
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Causation: Note: IIED |
The invasion of P's interest in privacy must have been proximately caused by D's conduct. Note: Always discuss IIED when there is a privacy tort. |
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Invasion of Privacy - Defenses
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• Consent is a defense to all four privacy torts – (reasonable mistake as to consent is not a valid defense)
• Absolute privilege and qualified privilege from the law of defamation are available defenses for false light and disclosure claims • Truth – only for false light |
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Negligence
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Rule: In order to prove Negligence a P must show that the D owed a duty of care to P, that D breached his duty of care, and that the D’s breach was the actual and proximate cause of P’s damages.
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Elements of Negligence
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1. Duty
• Foreseeable Plaintiff • Standard of Care 2. Breach 3. Causation • Actual cause • Proximate cause 4. Damages 5. Defenses: Contributory negligence, comparative negligence, and assumption of risk |
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Foreseeable Plaintiff
Cardozo view Andrews view |
Rule: a person owes the duty of care of a reasonable prudent person under similar circumstances to foreseeable plaintiffs.
• Cardozo view: (majority view) a P in the “zone of danger” is a foreseeable plaintiff. • Andrews view: (minority view) anyone injured as a proximate result of D’s breach of duty to someone else is foreseeable plaintiff. |
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Basic Standard of Care:
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Rule: A person owes the duty of care of a reasonable prudent person under similar circumstances
• Objective standard • Average mental ability: insane person - judged as reasonably prudent person under circumstances, • intoxicated – held to standard of reasonably sober person • Physical handicap or disability – held to standard of Reasonably Prudent Person with that particular handicap (blind person) • Same knowledge as average member of community –(gravity, fire is hot) • Circumstances¬ – look at particular circumstances of each situation |
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Standard of Care - Particular Standard - Professionals
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Rule: the professional must exercise the skill and knowledge normally possessed by members of that profession in good standing in similar communities.
• Specialist – held to even higher standard than general practitioner • Knowledge, training, skills – negligence must be in that particular area of skill • Member of their profession – new professional is presumed as competent in that area as seasoned professional • Doctrine of informed consent – (applies to doctors) A doctor, prior to performing an operation, procedure or treatment, must inform patient of risks involved to enable the patient to make an informed consent. Failure to inform, where undisclosed risk was serious enough that a RP in patient’s position would have withheld consent, results in doctor’s breach of duty • P must know of the injury before statute of limitations begins to run |
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Standard of Care - Particular Standard - Professionals
Medical Specialists Primary Care Physicians Doctors duty to Disclose |
1. Medical Specialists are held to a national duty of care
2. Primary care physicians are held to a regional standard of care 3. Doctors have a duty to disclose the risks of treatment to enable a patient to give an informed consent. A doctor breaches that duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk. |
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Standard of Care - Particular Standard - Children
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Majority Rule:
Children age 5 and above owe the duty of care of children of similar age, experience, education and intelligence acting under similar circumstances. • This is a subjective standard of care which differs from child to child. This standard ends up being flexible and lenient Minority Rule - breaks down ages: • 0 - under 7 = conclusive presumption incapable of negligence • 7 – under 14 = rebuttable presumption • 14 and above = no presumption of innocence • 17 and over treated as RPP (adult). |
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Standard of Care - Particular Standard - Children
Children engaged in adult activities |
If a child is engaged in an adult activity then the default standard of care (Reasonable Person Test) is used.
i.e. a child operating a motorized vehicle is held to the duty of a reasonable person operating a motorized vehicle under similar circumstances |
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Standard of Care - Particular Standard – Common Carriers and Innkeepers
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Rule: Common carriers and innkeepers must exercise a high degree of care to assist passengers and guests and prevent injuries from 3rd parties.
Common carriers and innkeepers are liable for even slight negligence. Note: P must be a guest or passenger |
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Standard of Care - Automobile Driver to passenger
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• Passenger doesn’t pay for ride – driver must warn of known, non-obvious defects and drive with reasonable care
• Passenger pays for ride – driver must also make reasonably inspections for dangerous conditions • Guest Statute State – In some states D owes a duty to non-paying passengers to refrain only from gross recklessness or wanton conduct. (Paying passengers are owed duty of ordinary care). |
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Standard of Care - Bailment
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Duties Owed by Bailor:
• Gratuitous bailment: inform only of known dangerous defects in the chattel • Bailment for hire: inform of dangerous defects in the chattel known to him or should be known to him by exercise of reasonable diligence. Duties Owed by Bailee: • Sole benefit of bailor bailment – only slight diligence required (liability only for gross negligence) • Sole benefit of bailee bailment – great diligence required (liability results from slight negligence) • Mutual benefit bailments – ordinary due care required • Modern trend: do away with classifications and bailee must exercise ordinary care under circumstances |
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Standard of Care - Emergency Situations
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• Since there is little time for reflection in an emergency situation, D must act as a RPP under the circumstances.
• Emergency may not be considered if it is of D’s own making |
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Standard of Care - Owner and Occupier of Land
P's not on the land (but adjacent to land) |
Rule: There is no duty to protect one that is off the premises from natural conditions on the premises; however, there is a duty for unreasonable dangerous artificial conditions or structures abutting adjacent land.
Conduct on land – landowner has a duty to exercise reasonable care with respect to his own activities/conduct on the land and to control the conduct of others on his property so as to avoid unreasonable risk of harm to those outside property. |
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Standard of Care - Owner and Occupier of Land
Undiscovered/unknown Trespasser Discovered/known Trespasser |
1) There is no duty owed to unknown/undiscovered trespasser
2) As to discovered/known or anticipated trespassers, landowner has duty to warn or make safe concealed, unsafe, known artificial conditions involving risk of death or serious bodily harm and use reasonable care in the exercise of active operations on the property. |
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Attractive Nuisance Doctrine
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Rule: A landowner has a duty to exercise ordinary care to avoid reasonably foreseeable risk of harm to children caused by artificial conditions on land.
P must show: 1. A dangerous condition on the land that the owner knows or should have known, 2. Owner knows or should know children frequent the vicinity of the condition, 3. Condition is likely to cause injury because of a child’s inability to appreciate the risk, and 4. The expense of remedying the situation is slight compared with magnitude of risk. |
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Standard of Care - Owner and Occupier of Land
Licensee |
Rule: A landowner has a duty to warn of dangerous conditions known to the owner that create an unreasonable risk of harm to the licensee and that licensee is unlikely to discover, and exercise of reasonable care in the conduct of “active operations” on the property.
No duty to inspect – owner/occupier need not inspect for defects or repair known defects Licensee is a Social guest - Licensee is one who enters with permission for her own purpose/business, e.g., social guest, girl scout selling cookies. |
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Standard of Care - Owner and Occupier of Land
Invitee |
Rule: A landowner has a duty to warn of dangerous conditions known to the owner that create an unreasonable risk of harm to the invitee and that the invitee is unlikely to discover, make reasonable inspections to discover non-obvious dangerous conditions and make them safe and exercise of reasonable care in the conduct of “active operations” on the property.
• Invitees enter for a purpose connected with landowner’s business or for which the land is held open to the public. i.e customer of a business, churchgoer |
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Statutory Standard of Care/Negligence per se
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Rule: A statutory standard of care may replace the common law duty of care where there is a statute that provides a criminal penalty for violating the statute, the statute clearly defines the standard of conduct, the plaintiff is within the protected class the statute was designed to protect, and the plaintiff suffered the harm the statute was designed to prevent.
• Violation may be excused if compliance would cause more danger than violation, or where compliance is beyond D’s control • Unexcused violation is negligence per se (conclusive presumption of duty and breach of duty). |
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Affirmative Duties to Act
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General rule: there is no legal duty to act for the benefit of others unless:
1. Assumption of duty by acting 2. Defendant caused the peril 3. Special relationship between the person in peril and rescuer parties. Employer/employee, parent/child, friends hanging out together 4. Common law carriers and innkeepers 5. Duty to control third persons if one has actual ability and authority to control a person’s actions, and knows or should known the person is likely to commit acts that would require exercise of control. 6. Note: there is no duty to put one’s life at risk in order to rescue a person in peril |
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Superior Knowledge
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Rule: A person with superior knowledge must act as a reasonably prudent person with superior knowledge
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Negligent infliction of Emotional Distress
Bystander Distress Recovery Theory |
Rule: A person is liable where the D acts negligently, the P is in the zone of physical danger and suffers physical manifestation of distress
• Special situations that don’t require physical injury: a. erroneous report a relative’s death b. mishandling of relative’s corpse Bystander Distress Recovery Theory: Rule: A witness may recover if he witnesses a negligent injury to a close family member, suffers emotional distress with a physical manifestation and is in the zone of danger. |
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Breach
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Rule – Breach occurs when D‘s conduct falls short of the level required by the applicable standard of care owed to the plaintiff.
Proof of Breach: 1. Custom and Usage – may be used to establish standard of care, but does not control whether certain conduct amounted to negligence. 2. Violation of Statute/Negligence per se: causation and damages must still be established by P. 3. Res Ipsa loquitur |
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Res ipsa loquitur
(the thing speaks for itself) |
Rule: The very occurrence of an event tends to establish a breach of duty. P must show the accident causing the injury is a type that would not normally occur absent negligence, by evidence that the instrumentality causing the injury was in D’s exclusive control.
1. Note: It is not necessary to show defendant has actual possession of the instrumentality 2. Effect of Res ipsa loquitur: Where res ipsa is established, P had made a prima facie case and no directed verdict may be given for defendant |
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Causation
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D's breach must be the Actual and Proximate cause of P's injury
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Causation - Actual Cause
Joint Causes Alternative Causes Distinguish both causes |
Actual Cause: “But for” D’s breach (act or omission to act), P's injury would not have occurred.
1. Joint causes: Substantial factor test: Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, D’s conduct is the cause in fact if it was a substantial factor in causing injury. 2. Alternative causes (2 acts, only one causes the injury but unknown as to which one) BOP shifts to D, each must show that his negligence is not the actual cause. 3. Distinguish both tests: Under Joint – both parties caused the harm. Under alternative causes – although both parties acted negligently only one caused the harm. |
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Causation - Proximate Cause
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D is generally liable for all harmful results that are the normal incidents of and within the increased risk caused by his act.
(this is a foreseeability test) • D is liable for all foreseeable harmful results. |
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Common Dependant Foreseeable intervening causes
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negligent medical treatment, negligent rescue, protective movement in reaction, subsequent disease or accident
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Independent Intervening Causes
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Forces that are not a natural response or reaction to the situation created by D’s conduct may be foreseeable if D’s negligence increased the risk of harm from these forces.
These forces include: negligent acts of third persons, crimes and intentional torts of third persons, and acts of God. |
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Superseding intervening causes
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Intervening forces that produce unforeseeable results are generally deemed unforeseeable and superseding and will break the causal chain.
• Unforeseeable - results not within in the increased risk created by D’s negligence • Superseding forces break the causal connection between D’s initial negligent act and P’s ultimate injury, thus relieving D of liability. |
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Eggshell Skull
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The defendant is liable for all injuries suffered by plaintiff even if surprisingly great in scope. The Defendant takes the Plaintiff as he finds him even if Plaintiff is frail.
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Damages:
Personal injuries Property Punitive Mitigation Non-recoverable items |
Damages: plaintiff must have suffered damages; nominal damages are not available.
1. Personal injuries - P is to be compensated for all his damages (past, present, and prospective) a. General: non-economic damages – pain and suffering (phobias, sleep loss, nightmares, personality changes, pre/post-impact fears) b. Special: economic losses and expenses - lost wages/earnings, impaired future earnings/permanent disability and disfigurement, out of pocket expenses – reasonable medical bills 2. Property Damages - a. damage – P will be reimbursed for reasonable cost of repair b. destruction – measure of damages is fair market value at time of incident 3. Punitive Damages – P may recover punitive damages if D’s conduct is “wanton and willful”, reckless, or malicious. 4. P has duty to mitigate damages. Failure to mitigate bars recovery of additional damages caused by aggravation of injury. 5. Non-recoverable items include (i) interest from the date of damage in a personal injury action and (ii) attorneys’ fees |
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Defenses - Contributory Negligence
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Rule: Where P's own negligence contributes to her injuries, P is barred from recovery.
• Contributory negligence of parent is not imputed to child in actions against 3rd parties. |
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Last Clear Chance Doctrine
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Exception: Last Clear Chance Doctrine
P’s contributory negligence will not be a bar to recovery and D will be held liable if P can say that D had last clear chance to avoid injury but didn’t, if: 1. D’s negligent act occurs after P’s contributorily negligent act, and 2. D could have avoided the accident/injury with due care Note: LCC is P's rebuttal to the defense of Contributory Negligence. |
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Defenses - Comparative Negligence
Pure Modified (Partial) |
Where P is contributorily negligent, P’s recovery will be reduced in proportion to percentage of P’s fault.
a. Pure comparative negligence – P's Recovery will be reduced by the percentage of P's fault. (P recovers no matter what) b. Modified (Partial) comparative negligence – P fault 50% or more is a bar to recovery. Note: On MBE assume comparative negligence applies unless stated otherwise. |
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Essay: Contributory Negligence/Comparative Negligence
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At common law, where P’s own negligence contributes to his injuries, P is barred from recovery. However, many jurisdictions use a comparative negligence system where P can recover damages minus the percentage of their contributory negligence.
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Defenses - Assumption of the Risk
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Rule: P is barred from recovery where he was aware of the risk and voluntarily proceeded in the face of the risk.
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Strict Liability
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Rule: P must show the nature of D’s activity imposes an absolute duty to make safe, the dangerous aspect of the activity was the actual and proximate cause of P’s injury, and that the P suffered damages to person or property
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Strict Liability for Trespassing Animals
Fencing in Fencing out |
Rule: An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals
i. “Fencing in”- owner is not strictly liable for trespassing livestock if attempts to fence in and is strictly liable if does not fence in. ii. “Fencing out” – If P properly fences his land, P has strict liability claim against D whose animal breaks in. |
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Strict Liability - Personal Injury - Wild Animals:
Domestic Animals (exception): Strict Liability for Trespassers: |
A. Wild Animals:
An owner is strictly liable to licensees and invitees for injuries caused by wild animals as long as the injured person did nothing to bring about the injury. B. Domestic Animals Generally there is no strict liability for domestic animals.
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Strict Liability - Ultra-hazardous or abnormally dangerous activities
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Rule: D is strictly liable for activities that involves a foreseeable risk of serious harm to persons or property, cannot be made safe no matter how much care is taken, and is uncommon in the particular area. (Rylands v Fletcher)
• Test Hint – look for blasting or dynamite, use of highly dangerous toxic and easily dispersed chemical or biological material, or nuclear energy or radiation |
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Strict Liability - Defenses
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Defenses
A. Assumption of risk – is a valid defense (the major SL defense) B. Comparative negligence – these states will reduce damages award. C. Contributory Negligence is not a defense to SL. |
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Products Liability / Theories of Liability
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There are five theories of liability that P may use: 1) Strict Liability, 2) Negligence, 3) Implied Warranties 4) Representation/Express Warranties, and 5) Intent. P must show a defect which existed when the product left D’s control.
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Strict Products Liability in Tort
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Prima facie case: P must show (i) a strict duty owed by a commercial supplier of a product; (ii) production or sale of a defective product; (iii) actual and proximate cause; and (iv) damages.
(P was making foreseeable use at the time of injury - misuse can be foreseeable). |
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Strict Products Liability in Tort
Strict Duty (Duty of Care) Who has the duty? |
Strict Duty: D has a duty to supply safe products.
1. Strict products liability applies only to products and does not extend to services. 2. There is no privity required therefore users, consumers, and bystanders can sue 3. Every party in the distribution chain must be a merchant therefore any commercial supplier can be held liable. Casual sellers will not be held strictly liable. i.e. selling at garage sales |
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Strict Products Liability in Tort
Production or sale of a defective product (Breach) |
Production or sale of a defective product (Breach):
P must show that the product is defective. The defect must make the product dangerous beyond the expectation of the ordinary customer. |
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Strict Products Liability in Tort
Production or sale of a defective product (Breach) Types of Defects: |
a. Manufacturing defect: is shown where product differs from all other products that came off of the same assembly line in a way that makes it more dangerous than consumers would expect. (Consumer Expectation Test)
b. Design defect: Where all products of a line are the same but have dangerous propensities, they may be found to have a design defect. A design defect is shown where P shows an alternative design that is safer, economically feasible and practical (does not destroy utility of the product). c. Inadequate warnings: a maker is liable for products with residual risks that are not apparent to consumers, and cannot be repositioned. |
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Strict Products Liability in Tort
Actual and Proximate Cause |
Actual and Proximate Cause:
1. Actual: Must show that the defect existed when the product left D’s control. 2. Proximate: the act and resulting injuries were a foreseeable result of D’s conduct, or the D’s conduct was a substantial factor in causing injury. |
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Strict Products Liability in Tort
Damages |
Physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic losses
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Strict Products Liability in Tort
Defenses |
Comparative negligence and assumption of risk.
Disclaimers are irrelevant for negligence or SL cases if personal injury/property damages occur |
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Products Liability - Negligence
Duty of Care Breach Causation Damages Defenses |
Negligence: P must show duty, breach, actual and proximate cause and damages.
Duty of Care: A duty of care is owed to any foreseeable plaintiff. (Privity is not required). Breach of duty is shown by (i) negligent conduct of D leading to (ii) the supplying of a defective product. 1. Negligence is proved the same as in a “standard” negligence case. Retailers and wholesalers can usually satisfy their duty through a cursory inspection. 2. P can invoke Res Ipsa Loquitur. Causation: 1. Actual: Must show that the defect existed when the product left D’s control. 2. Proximate: the act and resulting injuries were a foreseeable result of D’s conduct, or the D’s conduct was a substantial factor in causing injury. |
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Products Liability - Implied Warranties
Implied warranty of merchantability Implied warranty of fitness for a particular purpose Privity Breach - Notice of Breach Causation Damages Defenses |
There are two warranties implied in every sale of goods that can serve as the basis for a products liability suit.
A. Implied warranty of merchantability: is a warranty that goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used. B. Implied warranty of fitness for a particular purpose: is a warranty that arises when the seller knows or should know the particular purpose for which the goods are required and that the buyer is relying on the seller’s skill and judgment in selecting the goods. C. Privity - Narrow horizontal privity requirement: buyer, family, household and guests can sue for personal injuries D. Breach - If the product fails to live up to either of the above standards, the warranty is breached and the defendant will be liable. 1. Notice of Breach: U.C.C. § 2-607 requires the buyer to give the seller notice within a reasonable time after buyer discovers or should have discovered the breach. E. Causation: Actual and Proximate - same as negligence. F. Damages – personal, property, and purely economic damages recoverable F. Defenses – Assumption of the risk, contributory/comparative negligence, failure to give notice of breach under U.C.C. § 2-607. |
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Products Liability - Representation Theories
Express Warranty Defenses Misrepresentation of Fact Defenses |
Express Warranty: Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty.
Defenses: Assumption of the risk, contributory/comparative negligence Misrepresentation of Fact: A seller will be liable for misrepresentations of facts concerning a product where (i) the statement was of a material fact concerning the quality or uses of goods and (ii) the seller intended to induce reliance by the buyer in a particular transaction. 1. Mere puffery is insufficient Defenses: Assumption of the risk is not a defense if P is entitled to rely on the representation. Contributory/comparative negligence is same as in strict liability unless D committed intentional misrepresentation. |
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Products Liability - Liability based on Intent
Damages Defenses |
Rule: D will be liable to anyone injured by an unsafe product if D intended the consequences or knew that they were substantially certain to occur. (look for battery)
Privity is not required, any injured P can sue. Damages: In addition to compensatory damages, punitive damages are available. Defenses: The defenses are those available in other intentional torts cases. |
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Private Nuisance
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Rule: A substantial, unreasonable interference with a private individual’s use and enjoyment of property that he actually possesses or to which he has a right of immediate possession.
• Substantial: The interference must be offensive, inconvenient, or annoying to an average person in the community. |
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Private Nuisance Balancing Test |
The interference is unreasonable if the gravity of the harm outweighs the utility of the conduct engaged in by the defendant. |
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Public Nuisance
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Rule: Unreasonably interference with the health, safety, or property rights of the community.
• Recovery is available only if P has suffered some unique damage not suffered by the public at large |
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Defenses for Private and Public Nuisance
(3) |
i. Legislative Authority – (zoning ordinance) is not an absolute defense but is persuasive.
ii. Conduct of others – No one actor is liable for all damages caused by concurrence of his acts and others. 10 mills pollute a stream. Each mill is responsible only for the pollution it causes. iii. Coming to the Nuisance – One may “come to a nuisance” and thereafter pursue an action. It’s not a bar to recovery unless P “came to the nuisance” solely to bring forth a cause of action. |
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Intentional Misrepresentation - (Fraud, Deceit)
Damages Defenses |
Rule: Misrepresentation of a material fact with knowledge of falsity, intent to induce P to act or refrain from acting in reliance of the misrepresentation, causing actual reliance by P, and P suffered actual pecuniary loss.
Damages: a. P must suffer actual pecuniary loss b. P may recover “benefit of bargain” Defenses: There is no defense to intentional misrepresentation |
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Negligent Misrepresentation
Damages Defenses |
Rule: Misrepresentation by D in a business or professional capacity, breach of duty towards a particular P causing justifiable reliance and damages
• Breach of duty toward particular P does not extend to foreseeable Ps. • This action is confined to misrepresentations made in a commercial setting and liability will attach only if reliance by the particular plaintiff could be contemplated • Damages: a. P must suffer actual pecuniary loss b. P may recover “benefit of bargain” F. Defenses a. Contributory negligence - same rule as for negligence |
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Malicious Prosecution & Wrongful Civil Proceedings
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Malicious Prosecution: instituting a criminal proceeding against P without probable cause for an improper purpose which terminated in P’s favor and damages
Wrongful Civil Proceedings: (same as malicious prosecution but related to civil proceedings) most jurisdictions have extended malicious prosecution to encompass wrongfully instituted civil cases, but lack of probable cause is more difficult to prove |
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Abuse of Process
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Abuse of Process: wrongful use of process for an ulterior purpose and definite act or threat against P in order to accomplish an ulterior purpose.
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Interference with Contractual Relationship or Prospective Advantage
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Rule: (i) existence of a valid contractual relationship between P and a 3rd party or valid business expectancy of P (ii) defendant had knowledge of the relationship or expectancy (iii) intentional interference by D inducing a breach or termination of the relationship or expectancy and (iv) damages.
• D’s conduct may be privileged where it is a proper attempt to obtain business for itself or protect its interest |
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Vicarious Liability
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Vicarious Liability/Respondeat Superior – Employers are liable for employee’s torts committed within the scope of employment
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Vicarious Liability - Hiring party & Independent Contractors: Exception: |
General rule is that there is no vicarious liability. Exception: If an independent contractor injures an invitee the landowner is liable |
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Vicarious Liability - Auto Owner and auto driver: Exception: |
General rule is that there is no vicarious liability. Exception: if the driver is doing an errant for the owner then the owner is vicariously liable for the drivers torts. |
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Vicarious Liability Parents and children: |
General rule is that parents are not vicariously liable for the torts of their children. |
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Joint tortfeasors - Joint and Several Liability
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Rule: When two or more tortious acts combine to proximate cause an indivisible injury to the plaintiff, then each tortfeaser may be jointly and severally liable (each liable to P for entire damages)
1. Acting in concert – When both Ds act together, both Ds are liable even if only one did the actual tortious act. 2. Successive acts – Ds not jointly and severally liable for successive negligent acts; each D pays in proportion to his percentage of damages 3. Overlapping liability – when negligent acts overlap - no joint and several liability 4. Satisfaction – full payment in satisfaction of the judgment (P is entitled to only one satisfaction but D1 can try for contribution or indemnification from other Ds). |
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Release
Common Law Modernly |
Rule: A surrender of P’s cause of action through K or agreement (one tortfeaser is being released from liability)
1. Common law – a release of one tortfeaser released all tortfeasers 2. Modernly – majority of states hold that a release does not release any other tortfeasers until expressly provided for in the release 3. If consideration is paid, liability of other tortfeasers will be reduced (by amount of consideration). |
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Contribution / Indemnification
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Contribution – Allows any tortfeasor that pays more than his share of damages to recover against other tortfeasers
1. Methods of Apportionment: • Majority - comparative contribution; each D pays in proportion to relative fault • Minority - equal shares; each D pays equal regardless of degrees of fault 2. Contribution may only be recovered from party that would have been liable to original P. 3. Contribution does not apply to intentional torts. Indemnification – When D is only passively at fault and pays satisfaction, may shift entire loss and recover from other tortfeasers that actively caused negligent act. (Indemnification rejected by most comparative negligence jurisdictions) 1. when there is a contractual promise to indemnify 2. implied when special relationship between Ds that allows for vicarious liability 3. A supplier, who is liable to injured P in SL in torts, may be indemnified from previous suppliers in distribution chain. 4. some states allow a joint tortfeasor to recover indemnification from co-joint tortfeasor if there is considerable difference in degree of fault |
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Wrongful Death
Common Law Modernly |
Wrongful Death: Recovery is allowed for pecuniary injuries resulting from the death of a spouse or next of kin to the extent the decedent would have recovered had he lived.
1. Common law- no cause of action (courts felt was for criminal court) 2. Modernly – every state has wrongful death statute and next of kin may recover for loss of consortium and loss of support (decedent’s contributory negligence reduces award) |
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Loss of consortium
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A spouse can bring a cause of action for loss of consortium when a spouse is injured. Any defense that can be used against the main spouse can be used against the consortium spouse.
Damages: loss of services (no one to help around the house), loss of society (companionship), loss of sex |
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Survival Acts
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Survival Acts – a cause of action that survives P or tortfeaser’s death
1. Common law – cause of action did not survive death & no recovery 2. Modernly – cause of action survives and next of kin may recover for P’s pain and suffering, lost wages, or medical expenses up until death. • Exception: torts that invade intangible personal interest such as defamation, invasion privacy or malicious prosecution do not survive death because too personal. |
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Governmental Tort Immunity
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Under the doctrine of sovereign immunity, governmental units are generally not subject to tort actions for discretionary activities which take place at the planning or decision-making level of government.
Statutory limitations have waived tort immunities for ministerial acts that are performed at the operational level of government. |
