Torts

Front 1

Intentional Torts - General Information

Back 1

I. Hypersensitivity of π – ignore.
II. I.T. – no incapacity.

Front 2

Intentional Torts (7)

Back 2

BATTERY:
ASSAULT:
FALSE IMPRISONMENT:
INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS:
TRESPASS TO LAND
TRESPASS TO
CHATTELS/CONVERSION
DECEIT / FRAUD / INTENTIONAL
MISREPRESENTATON:

Front 3

BATTERY

Back 3

Intent: desire to bring about the harmful/offensive contact or substantial certainty.
Harmful or Offensive Contact: Un-permitted. Not normally permitted by a reasonable person. (can be direct or indirect if ∆ sets in motion a chain of events)
With πs Person: Anything connected

Front 4

ASSAULT

Back 4

a. Intent: to cause apprehension
b. Apprehension: knowledge the π may be touched (always from π persp)
c. Of an Immediate Battery:
i. Must include physical conduct not just words
ii. Words can negate
1. Conditional words
2. Future threats.

Front 5

FALSE IMPRISONMENT

Back 5

can recover for humiliation.
o Intent:
o Restraint:
 Threats can be sufficient (sufficient to act on the mind of a reas. person)
 Omission can suffice if there is a duty to move.
 Must know or suffer harm
o Confinement in a Bounded Area: (not keeping someone out)
 Not bounded if: There is a reasonable means of escape that is reasonably discoverable.

Front 6

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Back 6

o Intent: to inflict emotional distress
o Outrageous Conduct:
 Mere insults not sufficient.
 Hallmarks
• continuous or repetitive conduct
• ∆ is common carrier or innkeeper (high degree of decency)
• π is a member of a fragile class (outrageous to target) = young children, elderly, pregnant women, racial, religious, or ethnic min.
• exploiting a known phobia/sensitivity
o Severe Emotional Distress: more than momentary.

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TRESPASS TO LAND

Back 7

• Intent: to be on the property
• Invasion: physically or by propelling any tangible object on the property.
• Land: Includes air above and ground below to a reasonable distance.

Front 8

TRESPASS TO CHATTELS/CONVERSION

Back 8

(Mutually exclusive)
• Intent: do the act intentionally
• Invasion: of personal property by damaging or depriving of possession
• Difference is one of degree & damages (conversion – full value v. repairs).
• Self Help: when chattel is located on the land of a wrongdoer, owner is privileged to enter and reclaim in a reasonable manner.

Front 9

DECEIT / FRAUD / INTENTIONAL MISREPRESENTATON

( + Negligent Misrepresentation)

Back 9

o Known false statement (or reckless disregard)
 Silence can suffice if there is a duty to speak.
o Intent to induce reliance about a material fact
o Justifiable reliance
o Damages

 Negligent Misrepresentation: if intent cannot be shown, but if a duty can be found b/c of fiduciary relationship or other professional relationship of trust.

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TRANSFERRED INTENT

Back 10

Intent to commit a tort against one person can be transferred to other persons w/ the following five torts. (BAFTT)
1) Battery
2) Assault
3) False Imprisonment
4) Trespass to Land
5) Trespass to Chattels

Front 11

DEFENSES TO INTENTIONAL TORTS:

Back 11

CONSENT
SELF DEFENSE / DEFENSE OF OTHERS
/ DEFENSE OF PROPERTY
NECESSITY
PRIVILEGE OR AUTHORITY OF LAW

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CONSENT

Back 12

o Capacity:
o Express Consent:
 Not by fraud or duress.
o Implied Consent:
 Custom or Usage: π goes to a place or engages in an activity where invasions are customary.
 ∆ Reasonable Interpretation of π objective conduct: jury determines ∆ reasonableness.
o Scope

Front 13

SELF DEFENSE / DEFENSE OF OTHERS / DEFENSE OF PROPERTY

Back 13

Timing: Conduct is in progress or is imminent. (no revenge)

Accuracy: Reasonable belief that the tort is being or about to be committed.

Force: Must be reasonably necessary to avoid the harm.
- Deadly Force: Only if a human life is threatened or there is threat of serious bodily injury. NEVER TO PROTECT PROPERTY.

Front 14

Right of Recature for Chattels / Reentry

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• Right of Recapture for Chattels / Reentry:
o Reasonable Force
o After Demand has been made
o If initial possession lawful – removal must be by ejection.

Front 15

Shopkeeper Privilege

Back 15

o Detention must be reasonable.
o Reasonable belief a theft was committed (based on reasonable suspicion) or other crime.

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NECESSITY

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(Only for Property Rights)
o Public Necessity: ∆ invades property in an emergency to protect the community as a whole or a large number = ABSOLUTE DEFENSE.
o Private Necessity: to protect a personal interest.
 must pay for actual harm done to property.
 not liable for nominal or punitive damages.
 Right of refuge so long as emergency continues.

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PRIVILEGE OR AUTHORITY OF LAW

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• Police → Always a defense for when (1) an arrest in involved w/ a valid warrant, or (2) if no warrant only if probable cause to believe he committed a felony or (3) misdemeanor arrests w/out warrants if done in fresh pursuit, act is a breach of the peace and done in officer’s presence.
• Private Citizen → subject to same tests but must be right.
• Force → must be reasonable, deadly force only if serious felony or delay would create risk to others.

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MISCELLANEOUS INTENTIONAL TORTS

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MALICIOUS PROSECUTION
ABUSE OF PROCESS
BUSINESS TORTS

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MALICIOUS PROSECUTION

Back 19

• Institution of Civil or Criminal Proceeding against π
• Termination Favorable for π
• Absence of Probable Cause
• Improper Purpose
• Damages

Front 20

ABUSE OF PROCESS

Back 20

o Wrongful use of process for ulterior motive
o Some definite act or threat ag. π to accomplish ulterior motive.
 Note → no lack of PC or favorable termination. Always consider if MP is an option.

Front 21

BUSINESS TORTS (often paired w/ K on an essay)

Back 21

Interference w/ Contractual Relationships

Interference w/ Prospective Advantage

Trade Libel

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Interference w/ Contractual Relationships + Defenses

Back 22

o Interference w/ Contractual Relationships: Interference (doesn’t have to be breach) with the actual performance of an existent contract.
 Defense: Honest Persuasion → protecting legit. interest, honest advice, acting for the social good.

Front 23

Interference w/ Prospective Advantage

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When no contract can be shown.
 Problem → damages are speculative.

Front 24

Trade Libel

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o Trade Libel: Publication of a statement which is false and injurious and causes actual economic injury for the π w/ some third party. (applies to corps and entities)
• Special damages required
• Modernly, courts will grant injunction.
• Defenses: Truth and Privileges (see defamation), or general statement of comparative quality by a competitor.

Front 25

DEFAMATION - COMMON LAW

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o Defamatory Statement: Identifying π. Tends to adversely affect reputation.
 Insults: not enough – need allegations of fact that reflect negatively on a trait of character.
 Alive
 Opinion: if listener would assume it’s based on facts.
o Publication: To at least one more
 Overhear: if it was reasonable – counts. (rem → not an intentional tort!)
o Damages
 LIBEL: (permanently memorialized) No need to prove damages
 SLANDER: (oral or spoken)
• Slander Per se – no need to prove damages
o oral statement concerning π business or profession.
o crime of moral turpitude.
o imputing unchastity to a woman.
o loathsome disease – leprosy, venereal.
• General Slander: must show economic loss.

Front 26

FIRST AMENDMENT DEFAMATION

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Must bring if it s a matter of public concern or it’s about a public figure / official.
o Falsity: (burden shift)
o Fault:
 Public Figure / Official: Must show malice (recklessly or knowing)
 Private Figure: Negligence (in accuracy checking).

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DEFENSES

Back 27

o Consent:
o Truth
o Privilege:
 ABSOLUTE PRIVILEGE: (status based)
• Married Persons
• Officers of the three branches of gov’t in their official capacities.
 QUALIFIED PRIVILEGE: (content or circumstances based)
• Rule: If you limit yourself to relevant matters you are not liable for a reasonable (i.e. innocent) misstatement of fact.

Front 28

PRIVACY TORTS

Back 28

APPROPRIATION
INTRUSION
FALSE LIGHT
DISCLOSURE

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APPROPRIATION

Back 29

Un permissive use of name or picture for commercial advertisement.
• Exception: newsworthiness.

Front 30

INTRUSION

Back 30

invasion of the π solitude in a way that would be objectionable to a reasonable person.
• Defense: No reasonable expectation of privacy.

Front 31

FALSE LIGHT

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Widespread dissemination (lots of people) of a major misrepresentation about the π that would be objectionable to a reasonable person.
• Note → emotional distress and mental anguish are sufficient damages.
• Exam Trick: Can be unintentional.
• Watch for First Amendment Issues!

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DISCLOSURE

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widespread dissemination of confidential information re. π that would be objectionable to an average person. (deals w/ truthful info!)
o Watch for First Amendment Issues!
o Exceptions:
 Newsworthiness (Cheney example)
 Dual Life Fact Pattern.

Front 33

DEFENSES TO PRIVACY

Back 33

• CONSENT: applies to all four
• PRIVILEGE: (absolute and qualified) only for False Light and Disclosure.
• TRUTH – for false light.

Front 34

NEGLIGENCE - DUTY (3 major issues)

Back 34

Foreseeable Victim
Reasonably Prudent Person
Special Duty Standards

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• Foreseeable Victim

Back 35

o Foreseeable Victim: (Cardozo – must be near/in zone of danger v. Andrews – all).
 Exception: Rescuers are always foreseeable plaintiffs no matter how far.

Front 36

• Reasonably Prudent Person

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o Reasonably Prudent Person in Similar Circumstances (objective standard applicable to all).
 Exceptions:
• Superior Knowledge – RPP w/ that superior knowledge.
• Physical Characteristics – built into the standard.

Front 37

Special Duty Standards (7)

Back 37

DEFENDANT IS A CHILD
PROFESSIONALS
OCCUPIER OF LAND TO ENTRANTS
STATUTORY STANDARDS OF CARE
DUTIES TO ACT AFFIRMATIVELY
NEGLIGENT INFLICTION OF
EMOTIONAL DISTRESS
BAILOR / BAILEE

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DEFENDANT IS A CHILD

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child of similar age, experience and intelligence.
Exception: Engaged in an adult activity – RPP standard.

Front 39

PROFESSIONALS

Back 39

of the average member of that profession, practicing in a similar community. (small v. large) An empirical standard.
• Note → this standard applies to advice soliciting consent as well.

Front 40

OCCUPIER OF LAND TO ENTRANTS (major issues)

Back 40

Undiscovered Trespassers
Discovered Trespassers
Licensee
Invitees
Neighbor
Special Cases
SATISFYING THE DUTIES

Front 41

Undiscovered Trespassers

Back 41

NO DUTY TO UNDISCOVERED TRESPASSERS.

Front 42

Discovered Trespassers

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(also reasonably anticipated/expected-frequent shortcuts).
• Conditions: owes a duty for known, man-made, hidden DEATH-TRAPS.

Front 43

Licensee


Invitee

Back 43

Enter property w/ permission NOT open to the public (usually social guests) usually for own purpose.
• Conditions: all known, hidden traps.


On the land w/ permission for the benefit of the occupier or open to the public.

Owes a duty for all knowable hidden traps - includes a duty to investigate.

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Neighbor

Back 44

owes a duty to protect from unreasonable artificial conditions

Front 45

Special Cases (3)

Back 45

o Firefighters & Police: automatic licensee standard. BUT they NEVER recover from an inherent risk of the job (AR)
o Child Trespassers: always reasonably prudent care.
 Attractive Nuisance Doctrine:
• Aware (or should be) of dangerous condition.
• Know (or should) kids are likely to be attracted to dangerous condition
• Injury likely
• Kids not aware of the risk
• Expense less than risk.
• → ELIMINATE DANGER
o Hazardous Condition:

Front 46

SATISFYING THE DUTIES

Back 46

• Fix or Repair.
• Warn – no longer concealed.

Front 47

DUTIES TO ACT AFFIRMATIVELY

+ Rescuer Duty

Back 47

THERE ARE NONE!
• Remember there is no duty to rescue.
• Exceptions:
o If ∆ caused the peril
o Preexisting Relationship: i.e. family member, common carrier innkeeper / patron, land occupier/invitee, Employer / Employee if in the course of employment to protect against unreasonable harm.
o THEN → must rescue reasonably under the circumstances (never have to put life in peril), otherwise responsible for all damages caused by negligence.

Front 48

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

Back 48

duty to avoid conduct upsetting to others. WITHOUT PHYSICAL TRAUMA (based on a near miss situation)
• Breach of one of the other duties (gen. neg/RP or Special Duties).
• Zone of physical danger
• Subsequent Physical Manifestation
o Exception: if ∆ negligence creates a great likelihood of severe emotional distress (e.g. misrepresenting a relatives death or mishandling a corpse).

Front 49

Bystander Distress Claim

Back 49

• BYSTANDER DISTRESS based on seeing someone else injured or killed.
o Physically present
o Witness Injury
o To a Relative

Front 50

BAILOR / BAILEE

Back 50

to inform the bailee of known dangerous defects

Front 51

BREACH

Back 51

Evidence (id the specific wrongful conduct) & Analysis (show why falls short of the standard) → inverse relationship to specificity of standard.
o RES IPSA LOQUITOR: Used by the π when cannot tell w/ precision what the ∆ did wrong.
 Accident is of a type that doesn’t normally occur in the absence of negligence. (injury implies negligence).
 Accident happens normally b/c of negligence of someone in the ∆ position (control element)
 RESULT → avoid dir. verdict and get to the jury.

Front 52

CAUSATION – FACTUAL CAUSE

Back 52

o link b/n breach and injury. The But-For Test → but for the breach I would be free of injury (π), or alternatively, even if ∆ had behaved prudently π still would have been hurt.
 NOT FOR MULTIPLE DEFENDANTS:
• Mingled Causation: both actions mingle to cause the injury.
o Substantial Factor Test: Did each or either ∆ contribute to the injury in a substantial way?
 NOTE → breaking statute can be concurring actual cause, if but for the violation π would not have been injured.
• Unascertainable Causation: (hunting case).
o BOP shifts to ∆: must show he was NOT the cause.

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CAUSATION – PROXIMATE CAUSE (general definition)

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 Foreseeability: the consequences must be foreseeable for liability to attach.

Front 54

CAUSATION – PROXIMATE CAUSE - Direct Cause Questions

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• Direct Cause Questions: ∆ breach → immediate injury to π usually foreseeable, unless surprising or shocking outcome .

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CAUSATION - PROXIMATE CAUSE - Indirect Cause Questions

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• Indirect Cause Question: ∆ breach THEN intervening act THEN π suffers full harm.
o GR: Foreseeable Result Cause By Foreseeable Intervening Forces = ∆ liable.
 Intervening Negligent Medical Treatment → ∆ liable.
 Intervening Negligent Rescue → ∆ liable.
• Note → Not all rescuers recover, they are foreseeable victims but the HARM they suffer must also be foreseeable from breach.
 Intervening Protection or Reaction → ∆ liable
 Subsequent Disease or Accident → ∆ liable.
 Criminal Act & IT of 3rd Party → LIABLE IF FORESEEABLE.
 Act of God → LIABLE IF FORESEEABLE.
o GR: Foreseeable Results Caused by Unforeseeable Intervening Forces = ∆ liable.
o GR: Unforeseeable Results with Foreseeable or Unforeseeable Intervening Forces = ∆ NOT liable.

Front 56

CAUSATION - PROXIMATE CAUSE - When Unsure.

Back 56

• When Unsure →
o FIRST Q: Is this a direct or indirect cause situation? → if indirect...
o SECOND Q: Why does this behavior concern me?
o THIRD Q: Go to the end – is this the behavior I was worried about? IOW, given the breach was the resulting harm foreseeable?
 Example: Am I worried about food poisoning b/c I’m worried someone will break their arm?

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DAMAGES

Back 57

Egg Shell Skull Doct: ∆ must pay for all harm suffered by the π even if large in scope. “You take your victim as you find him.” THIS APPLIES TO ALL TORTS.

Front 58

NEGLIGENCE DEFENSES

Back 58

I. COMPARATIVE FAULT / NEGLIGENCE: When π is shown to have been negligent jury will weigh π fault and recovery is reduced by that %.
a. Pure: π always recovers no matter how much at fault.
b. Partial: if π is 50% or more responsible then won’t recover.
II. CONTRIBUTORY NEGLIGENCE: (historically) π negligence contributing to harm = complete bar to recovery. Not applicable in comparative fault states.
a. Exception: Last Clear Chance Rule → if ∆ had the last clear chance to avoid the harm but did not then π is not barred from recovery.
III. ASSUMPTION OF RISK: (historically) (1) knew of risk; (2) voluntarily proceeded, BUT not available if ∆ negligence required π to give up valuable right.

Front 59

STRICT LIABILITY

Back 59

Precautions taken are IRRELEVANT. This goes to breach only!
• ANIMALS
• ULTRA-HAZARDOUS ACTIVITIES

Front 60

STRICT LIABILITY - ANIMALS

Back 60

o Domesticated Animals: (dog) Not SL for dog bites.
 Exception: If you know the dog has vicious propensities. So if the dog has previously bitten someone, you are on notice.
• Note → Every Dog Gets One Free Bite? No b/c of negligence.
o Trespassing Cattle: (trampling/eating)
o Wild Animals: You are strictly liable if you keep these.

Front 61

STRICT LIABILITY - ULTRA-HAZARDOUS ACTIVITIES

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(usually explosives, highly dangerous chemical or biological substances, nuclear energy or radiation).
• Activity that cannot be made safe.
• Poses a sever risk of harm.
• Uncommon in the area where conducted.

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CONSUMER PRODUCTS

Back 62

STRICT PRODUCTS LIABILITY
NEGLIGENCE
IMPLIED WARRANTY
EXPRESS WARRANTY /
MISREPRESENTATION

Front 63

STRICT PRODUCTS LIABILITY

Back 63

Merchant: ∆ must be a seller or distributor (someone who routinely deals in goods of this type).
• NOT Casual Sellers, or Service Providers
• YES (Commercial Lessors, or any Indirect Seller).
Defective Product:
• Manufacturing Defect: product differs from all others off the assembly line which makes the product more dangerous than the consumer expected.
• Design Defect: if there is another way to physically construct the product (hypothetical alternative design).
1. Safer than design marketed
2. Economical / Cost effective (not much more $)
3. Practical: doesn’t’ undermine or impair utility.
• Failure to Adequately Warn: if they can be created to make product safer – must be clear and conspicuous.
Defect Existed at the time the product left the ∆ hands.
• Presumption: if the product moved through ordinary channels of distribution (not used).
Foreseeable User and Use: this is broader than intended use.
Causation:
• Actual and Proximate
Damages: Generally not extended if π suffered only economic loss.

Front 64

NEGLIGENCE

Back 64

Duty
- Foreseeable π
- Standard of Care
Breach: (unlike w/ SL, ∆ fault must be established)
Causation: Actual and Proximate
Damages:

Front 65

IMPLIED WARRANTY

Back 65

Implied Warranty of Merchantibility: (for all goods sold by merchants). Products must be safe, average quality, properly packaged, and fit for ordinary purpose. Privity required BUT buyers family and household guests can sue.

Implied Warranty – Particular Purpose: Arises when any seller (even non-merchant) knows the buyer is relying on the seller’s skill and knowledge to supply a product for a particular purpose. (same privity req. as IWM).

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EXPRESS WARRANTY / MISREPRESENTATION

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Must be commercial supplier or seller. An affirmation of fact or promise. It cannot be disclaimed. Any foreseeable user can sue.

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PRODUCTS DEFENSES

Back 67

I. COMPARATIVE FAULT
II. CONTRIBUTORY NEGLIGENCE
III. ASSUMPTION OF RISK.

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NUISANCE

Back 68

An unreasonable degree of interference with the use and enjoyment of ones land. Requires the court to balance the interests.
Note → can be intentional, careless, or careful (a non-intentional tort).

Front 69

VICARIOUS LIABILITY (5)

Back 69

EMPLOYER / EMPLOYEE
HIRING PARTY / INDEPENDENT
CONTRACTOR
PARTNERS AND JOINT VENTURERS
AUTO OWNER / DRIVER
PARENTS / CHILDREN
Remember this is a fall-back position only, only use when no direct theory is available.

Front 70

EMPLOYER / EMPLOYEE

Back 70

If the tort is committed w/in the scope of employment. Known as Respondeat Superior.
• Exception: Intentional Torts → generally these are out of the scope of employment UNLESS it’s designed to serve the employer’s adgenda / part of the job.
• Dramshop Acts: Vendee liable if Vendor leaves bar drunk and hurts 3d party.
• ESSAY TIP: Bring up anytime suit is brought against an employee.

Front 71

HIRING PARTY / INDEPENDENT CONTRACTOR

Back 71

GENERALLY NOT VL.
• Exception: a landowner is vicariously liable if an IK hurts and invitee on the land. This is known as a Non-Delegable Duty.

Front 72

PARTNERS AND JOINT VENTURERS

Back 72

for tortuous conduct committed in the scope and course of the partnership/venture

Front 73

AUTO OWNER / DRIVER

Back 73

GENERALLY NOT VL
• Exception: If I lend you my car to do an errand for me = principal / agent relationship = VL.
• Some Jurisdictions  Family Car Doctrine: liable for tortuous conduct of immediate family or household members who are driving with the owner’s express or implied permission
• Some States  Permissive Use: impose liability on the owner for damages caused by anyone driving with the owner’s consent
• Note → Can be liable for negligent entrustment (NOT VL)

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PARENTS / CHILDREN

Back 74

GENERALLY NOT VL
Exceptions:
Other states
Agency Theory: if acting as the agent for the parent.
Negligence Theory: known propensity w/ failure to warn.

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JOINT AND SEVERAL LIABILITY

Back 75

When two or more tortious acts combine to proximately cause an injury to a π (indivisible), each tortious actor will be J&S liable, meaning π can recover entire judgment from either.
RELEASES: Releases to one person discharge all ∆ at common law but a “covenant not to sue” releases only that particular defendant.
CONTRIBUTION: Allows a ∆ required to pay more than his share of damages to recover from the other jointly liable parties, the excess. Usually split according to # of defendants, sometimes by degree of fault attributed (comparative contribution)
INDEMNIFICATION: is sought by a defendant who wishes full compensation from another.

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LOSS OF CONSORTIUM

Back 76

Whenever π of tort is married, uninjured spouse gets separate COA in own right allowing for recovery for (1) loss of services, (2) loss of companionship, (3) loss of sex.

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TORT IMMUNITIES

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INTRA-FAMILY
GOVERNMENTAL
CHARITABLE IMMUNITY

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INTRA-FAMILY

Back 78

H-W immunity mostly abolished

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GOVERNMENTAL - Federal Government

Back 79

Federal Government: under the FTCA, fed government has waived immunity but does attach for: assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, defamation, fraud, and interference with K rights. Acts that are discretionary: immunity applies. Acts that are ministerial: no immunity

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9

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GOVERNMENTAL - State

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State Government: largely waived like the fed government
• Public Duty Rule: a duty owed to the public at large is not owed to any particular citizen absent a special relationship b/t the government body and the citizen
• If immunity applies: distinguish b/t governmental functions and proprietary functions. NO SI for proprietary functions

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GOVERNMENTAL - Public Officials

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Public Officials: if carrying out official duty, immune from tort liability for discretionary acts done w/o malice or improper purpose. Liability attaches for ministerial acts

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CHARITABLE IMMUNITY

Back 82

Mostly eliminated