Full Torts Rule Statements Uploaded 4.15 Flashcards
Torts I & II
Vicarious Liability | Employees
An employer will be vicariously liable for the tortious actions of an employee who is acting within the scope of employment. Conduct within the scope of employment includes acts that the employee is employed to perform or that are intended to profit or benefit the employer. (Detour = minor permissible, slight deviation from work [vicarious liability] Frolic = unauthorized, substantial deviation from work [no vicarious liability]) Generally, an employer is not vicariously liable for the intentional torts of employees except: (1) When force is inherent in the work (e.g., bouncer); and (2) If the employer authorizes the employee to act on his behalf, and the employees position provides the opportunity to commit an intentional tort
Vicarious Liability | Independent Contractors
Employers are not vicariously liable for the tortious actions of an independent contractor. Employer/Employee = An amployer has the right to control the means and methods by which an employee performs the work. Independent contractors = An employer only have the right to control the end product of an independant contractor’s work. A person who hires an independant contractor is vicariously liable for certain conduct (i.e., non-delegable duties): (1) abnormally dangerous activites; (2) inherently dangerous activities; (3) non-delegable duties arising out of a relationship with a specific plaintiff or the public (i.e., activities that are inhrently risky or that affect the public at large, such as construction work adjacent to a public highway); (4) the duty of a storekeeper or other operator of premises open to the public to keep such premsises in a reasonably safe condition; and (5) in a minority of jurisdictions, the duty to comply with state safety statutes. A person who hires an independant contractor’s negligence is a factual cause of harm to one who recieves the services, and such harm is within the scope of liability
Vicarious Liability | Joint Venture/Enterprise
Participants in a joint venture or enterprise will be vicariously liable for the tortious conduct of other particiapants if: (1) there is an agreement, express, or implied, among the members of the group; (2) with a common purpose to be carried out by the group; (3) with a community of pecuniary interest in that purpose among the members; and (4) an equal right to a voice in the direction of the enterprise, which give an equal right of control
Vicarious Liability | Car Owner - Negligent Entrustment
The owner of a vehicle (or any other object that carries the potential for harm) may be liable for the negligent acts of a driver to whom the car owner knew or should have known the user’s negligent propensities
Vicarious Liability | Car Owner - Family Purpose Doctrine
Many jurisdictions, through legislation or judicial decision, attach vicarious liability to the owner of a car for the tortious conduct of a family member using the car for the benefit of the family
Vicarious Liability | Car Owner - Imputed Negligence
Minority jurisdictions apply “imputed negligence” as a form of vicarious liability if the owner is the passenger while the driver engages in tortious conduct
Vicarious Liability | Car Owner - Owner Liability Statutes
Some states have enacted legislation that attaches vicarious liability to a car owner for the tortious conduct of anyone driving the car with permission
Strict liabiity | Wild animals
An owner or possessor of a wild animal will be strictly liable for injuries caused by a wild animal’s dangerous propensities, no matter how much precaution is taken on the part of the owner of possessor to prevent injury. “Wild animals” are those which are not traditionally and by custom devoted to the service of humankind in the place where it is being kept. The defendant need not own the animal but must be in possession and control of it
Strict liabiity | Domestic Animals
An owner or possesor is not strictly liable for injuries caused by domestic animals unless they have knowledge of that animal’s dangerous propensities; “every dog gets one free bite” and “every horse gets one free kick.” “Domestic animals” are those which are traditionally and by custom devoted to the service of humankind in the place where it is being kept. An owner or possessor is strictly liable for reasonably foreseeable damage done by his/her trespassing animal. The defendant need not own the animal but must be in legal possession and control of it. Defense: a defendant is not strictly liable when the plaintiff’s injury is attributable, not to the defendant’s keeping of the animal, but to the plaintiff’s unnecessarily and voluntarily putting him/herself in a way to be hurt knowing the probable consequences of his/her act, so that he/she may fairly be deemed to have brought the injury upon him/herself
Strict liabiity | Ultrahazardous/Abnormally Dangerous Activity
A defendant will be strictly liable for harm caused by his/her engaging in an ultrahazardous/abnormally dangerous activity. To determine if an activity is ultrahazardous/abnormally dangerous, consider the factors: (1) Existence of a high degree of risk of harm to the person, land, or chattels of others; (2) Likelihood that the harm that results from it will be great; (3) Inability to eliminate the risk by the exercise of reasonable care; (4) Extent to which the activity is not a matter of common usage; (5) Inappropriateness of the activity to the place where it is carried on; and (6) Extent to which its value to the community is outweighed by its dangerous attributes. The harm sustained must be caused by the thing which makes the activity ultrahazardous. (Mother mink killing her litter was not caused by the things which make blasting ultrahazardous). Strict liability does not apply where the injury results from an act of God which the owner had no reason to anticipate. (Hydro plant owners did not anticipate hurricane damaging hydro plant which subsequently floods nearby properties)
Public Nuisance
A public nuisance is an unreasonable interference with a right common to the general public. The following factors may be used to determine whether interference with a public right is unreasonable: (1) Whether the conduct involves a substantial interference with a public health, safety, peace, comfort, or convenience; (2) The degree to which the utility of the conduct outweighs the interference; (3) Whether the conduct is proscribed by statute, ordinance, or regulation; (4) Whether the conduct is of a continuing or has produced long-lasting effects. A plaintiff can only recover if they suffer an injury that is different in kind from that suffered by the general public while engaging in the right common to the general public that is being affected by the defendant’s conduct
Private Nuisance
A private nuisance is a non-trespassory invasion of another’s interest in the private use and enjoyment of land which is substantial and unreasonable. Substantial intereference is interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of the plaintiff’s hypersensitivity or specialized use of their own property. To be unreasonable, the severity of the inflicted injury must outweigh the utlity of the defendant’s conduct. A vendee of land cannot sue a vendor of that land for a nuisance created on the land when the vendor was in possession of the land
Nuisance Remedy Considerations
Where there is a large disparity between the harm caused by the nuisance and the economic effect of an injunction to abate the nuisance, and where the nuisance is permanent and unabateable, the court has the equitable power to substitute permanent damages for both past and future harm in the place of an injunction. A residential landowner may not have relief if he knowingly came into a neighborhood reserved for industrial or agricultural endeavors and has been damaged by moving to that neighborhood. However, where the public interest is at state (. . . like the development of large-scale housing), an injunction may be issued conditioned on the housing developer paying the costs of abatement (cease operation or more operation). Indemnity in these situations is limited to cases where a developer has foreseeably brought into a previously agricultural or industrial area the population which makes necessary the granting of an injunction against a lawful business and for which the business has no adequate relief
Products Liability Theories
When a plaintiff files a product liability case, it is usually based on one or several claims on which to base their action: (1) Intent; (2) negligence (MacPherson v. Buick Motor Co.); (3) Breach of warranty; and (4) Strict products liability
Products Liability | Intent
A defendant will be liable to anyone injured by an unsafe product if the defendant intended the harmful consequences or knew that they were substantially certain to occur. Liability based on an intentional torts is very uncommon. If the requisite intent on the part of the defendant is established, the intentional tort on which the cause of action most likely will be based is battery
Products Liability | Negligence - Duty
The commercial manufacturer, distributor, retailer, or seller of a product owes a duty of reasonable care to any foreseeable plaintiff (i.e., a purchaser, user, or bystander) under the Cardozo/majority rule and to anyone under the Andrews/minority rule. Remember, privity of contract is no longer required
Products Liability | Negligence - Breach
Failure to exercise reasonable care in the inspection or sale of a product. Plaintiff must prove that the defect exists, and that the defendant’s lack of reasonable care led to the plaintiff’s harm (i.e., had the D exercised reasonable care in inspection or sale of the product, the defect would have been discovered, and the P would not have been harmed). P may also implicate res ipsa loquitur if the defect could not have occurred without the manufacturer/distributor/retailer/selller’s negligence
Products Liability | Negligence - Causation
P must still prove actual and proximate causation
Products Liability | Negligence - Damages
P is entitled to recover damages from personal or property damage. A claim for purely economic loss is generally not allowed. Nominal damages are not allowed
Product Liability | Breach of Express Warranty
For purposes of a products liability claim, an express warranty is a guarantee - an affirmation of fact or a promise - made by a defendant in the “chain of distribution” (manufacturer, wholesaler, retailer, dealer, etc.) regarding the product that is part of the basis of a bargain (a key factor is whether the defect or characteristic of the item which was in breach of the warranty was readily discoverable to the plaintiff when the plaintiff took the item). A seller is liable for any breach of that warranty, regardless of fault. Damages for personal injury or property damage are recoverable
Product Liability | Breach of Implied Warranty of Merchantability
When a merchant who deals in a certain kind of goods sells such goods, there is an implied warranty that they are merchantable. “Merchantable” means that the goods are of a quality equal to that generally acceptable among those who deal in similar goods and are generally fit for the ordinary purposes for which such goods are used
Product Liability | Breach of Implied Warranty of Fitness for a Particular Purpose
An implied warranty of fitness for a particular purpose arises when the seller knows or has reason to know: (1) the particular purpose for which the goods are required; and (2) that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods
Product Liability | Breach of Implied Warranty - Effect of Disclaimer
Disclaimers of liability for breach of implied warranties must be specific and are very strictly construed. Contractual limitations (like those attempted in Henningsen v. Bloomfield Motors, Inc.) on personal injury damages resulting from a breach of implied warranty are per se unconscionable
Manufacturing Defect
A manufacturing defect is a deviation from what the manufacturer intended the product to be that causes harm to the plaintiff. Products with manufacturing defects are defective because of some characteristic that is different that others in a line of that product, usually as the result of faulty workmanship or defective materials. The test for the existence of such a defect is whether the product conforms to the defendant’s own specifications
Design Defect
Depending on the jurisdiction, courts apply either the consumer-expectation test or the risk utility test to determine whether a design defect exists. Many jurisdictions use various hyrbids of the two tests, and some states allow the plaintiff to prove a design defect under either test. Consumer - expectation test: does the product include a condition not contemplated by the ordinary consumer that is unreasonably dangerous to him/her? Risk-utility test: Do the risk posed by the product outweigh its benefits? In a majority of jurisdictions that use this test, the plaintiff must prove that a reasonable alternative design was available to the defendant, and the failure to use that design has rendered the product not reasonably safe; the alternative design must be economically feasible
Failure to Warn Defect
A failure to warn defect exists if: (1) there were foreseeable risks of harm, not obvious to an ordinary user; (2) the defendant had actual or constructive knowledge of those risks (the defendant is allowed to introduce evidence that the risk was either unknown or unknowable); (3) the risks would have been reduced or avoided by providing reasonable instructions or warnings; and (4) the defendant failed to provide adequate warnings or instructions to reduce or avoid those risks
Defamation Elements
A plaintiff in defamation case must prove: (1) defamatory statement; (2) of or concerning the plaintiff; (3) published to a third party; (4) falsity of the defamatory lanugage; (5) fault on the part of the defendant; and (6) damage to the plaintiff’s reputation
Defamation Defenses
The defenses to defamation are (1) Truth; (2) Consent; and (3) privileges
Element 1: Defamatory statement
A defamatory statement is a statement of fact that tends to adversely affect one’s reputation. A statement of opinion by itself is generally not actionable. A statement of opinion may be actionable if it appears to be based on specific facts, and those facts are false and defamatory
Libel
A defamatory statement in writing
Slander
A spoken defamatory statement
Element 2: Of or Concerning the Plaintiff
the plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referrred to the plaintiff. If the defamatory statement is about a group of people, the plaintiff must be specifically identifiable as a member of the group within the statement to be actionable
Element 3: Publication to the Third Party
Publication means communication to at least one other person who understands it. Intent to defame is not need, only intent to publish. Each repetition is a separate publication; however, for magazines, newspapers, books, etc., most states have adopted a “single publication” rule under which all copies are treated as one publication. An interactive internet service provider is not treated as a publisher when a user of its service posts defamatory content; to be an “information content provider,” thus subjecting it to liability, the interest service must create, develop, or, at a minimum, manipulate the content
Element 4: Falsity of the Statement
Common law presumed that defamatory statements are false. Therefore, at common law, the burden was on the defendant to prove truth as a defense. Modernly, a majority of jurisdictions require that the plaintiff prove that the statement was false (slight inaccuracies are insufficient)
Element 5: Fault on the Defendant’s Part
A majority of jurisdictions require a showing of fault on the part of the defendant. There are additional constitutional limitations (i.e. degree of fault limitations) depending on the status of the plaintiff. (public figure or official; private person, matter of public concern; private person, matter of private concern)
Public Figure or Official
Under NY Times v. Sullivan, actual malice must be proven if the plaintiff is a public figure or official. A public figure is one who has interjected him/herself in matters of public controversy such that they have gained general fame or notoriety in the community. General fame in a specialized professional community is insufficient. Actual malice can be proven by (1) knowledge of falsity; or (2) reckless disregard for the truth of the statement. Mere failure to verify the accuracy of the information is insufficient to prove reckless disregard for the truth. Reckless disregard for the truth means that the defendant seriously entertained doubts as the accuracy of the information
Private Person, Matter of Public Concern
Under Gertz v. Welch, when the plaintiff is a private person, only negligence regarding the falsity must be proved if the statement invovles a matter of public concern. If the defendant is negligent, only actual injury is recoverable. However, if actual malice is proven, presumed and punitive damages are allowed
Private Person, Matter of Private Concern
A state may permit recovery of presumed and punitive damages absent a showing of actual malcei when the defamatory statements do not involve matters of public concern
Element 6: Damage to Plaintiff’s Reputation, Libel
Because of the permanency of a libelous publication-one which is written, printed, or otherwise recorded-common law presumed general damages. The plaintiff only needed to invite the jury to award damages that it believed flowed from the defendant’s defamatory communication. Subject to the modern constitutionally imposed limits on damages recoverable in a defamation action, the libel plaintiff now needs to prove general damages- those damages that compensate the plaintiff for harm to the plaintiff’s reputation
Element 6: Damage to Plaintiff’s Reputation, Slander
Where the defamatory statement is slander-spoken or in gesture-the plaintiff needs to prove “special damages,” that is, ascertainable damages involving economic loss. Under the doctrine of slander per se, a plaintiff alleging slander need not prove special damages if the statement fits into one of four categories: (1) That the plaintiff committed a crime. Many jurisdictions require the crime to be one of moral turpitude or one which subjects the plaintiff to imprisonment; (2) Conduct reflecting on the plaintiff’s lack of fitness in his/her business, trade, or profession; (3) That the plaintiff has a “loathsome disease.” Traditionally, this included illnesses such as leprosy or a sexually transmitted disease; and (4) traditionally, that a woman was “unchaste,” or modernly, general sexual misconduct
Defamation Defense: Truth
At common law, the burden of proving truth rested with the defendant as a defense. Modern law requires the plaintiff prove that the statement was false. Notwithstanding the modern standard of placing the burden of proving falsity with the plaintiff, a defendant may still want to introduce evidence that the statements were true. Slight inaccuracies will not suffice as an untruthful statement
Defamation Defense: Consent
Consent by the plaintiff is a defense, but as with other torts, a defendant’s defamatory statement cannot exceed the scope of the plaintiff’s consent
Defenses: Absolute Privileges
Statements made under the following circumstances are shielded by absolute privilege: (1) in the course of judicial proceedings by the participants to those proceedings; (2) in the course of legislative proceedings by the participants to those proceedings; (3) in the course of legislative duties by a legislator; (4) in the course of federal or executive duties by federal or executive employees; (5) between spouses concerning a third-person; and (6) required publications by a political candidate that a station must carry and may not censor
Defenses: Qualified/Conditional Privileges
Statements made under the following circumstances are shielded by a qualified/conditional privilege: (1) In in the interest of the publisher defendant, such as defending his reputation; (2) In the interest of the recipient of the statement or a third-party (such as between a prior employee to a prospective employer about the employment of an employee); and (3) when broadly, there is a public interest in encouraging candor. The privilege may be lost if: (1) it is made outside the scope of the privilege; or (2) when made with actual malice
Invasion of Privacy - Appropriation of Name or Likeness
A majority of states recognize an action for the misappropriation of the right to publicity, which is based on the right of an individual to control the commercial use of his/her identity. The plaintiff must prove: (1) the defendant’s unauthorized appropriation of the plaintiff’s name, likeness, or identity; (2) for the defendant’s commercial advantage; (3) lack of consent; and (4) resulting injury
Invasion of Privacy - Intrusion Upon Seclusion
A majority of states recognize an action for unreasonable intrusion upon the plaintiff’s private affairs. The plaintiff must prove: (1) intrusion upon the plaintiff’s place, conversation, or matter. (the intruded place, conversation, or matter must be one in which the plaintiff holds a reasonable expectation of privacy - whether a reasonable person would have expected that place, conversation, or matter to be private from the defendant’s specific intrusion. Reasonableness depends on who the plaintiff is and the nature of intrusion.); and (2) the intrusion is highly offensiev to a reasonable person. The courts have held that eavesdropping via hidden devices is considered an unreasonable intrusion. The courts have held that photographing someone in public is not considered an unreasonable intrusion
Invasion of Privacy - False Light
A majority of jurisdictions recognize the tort of false light. The plaintiff must prove: (1) the defendant publicized facts about the plaintiff; (2) that placed the plaintiff in a false light; (2) which false light would be highly offensiveto a reasonable person; and (4) most jurisdictions require the additional element that the defendant act with actual malice. The false light does not necessarily involve an absolute falsity; rather, the presentation of the truth in a misleading way can be sufficient. Consequently, truth is not a defense if the resulting implication is still false or misleading, but may be a defense if the resulting implication is true.
Invasion of Privacy - Public Disclosure of Private Facts
Because of its tension with the First Amendment protections, a minority of jurisdictions recognize the privacy tort of public disclosure of private facts. In jurisdictions that do recognize the tort, the plaintiff must prove: (1) the defendant gave publicity to a matter concerning the private life of another, and (2) the matter publicized is of a kind that: (a) would be highly offensive to a reasonable person, (b) is not of legitimate concern to the public.
Malicious Prosecution
A person is liable for malicious prosecution when: (1) they instituted or continued a criminal prosecution against the plaintiff (most jurisdictions have extended malicious prosecution to include civil cases as well as criminal actions); (2) the proceedings were terminated in favor of the accused (terminated in favor of the accused means the action was terminated at the instigation of the prosecution, usually for failure to prove a case; termination does not include terminations at the instigation of the accused plaintiff, such as a plea deal leading to a dismissal of the criminal case); (3) there was an absence of probable cause for the proceedings (Probable cause exist if credible facts exist that would lead a person of ordinary caution and prudence to believe that the accused is guilty of the crime alleged); (4) the defendant acted with malice (“malice” here is when the defendant had a wrongful or improper motive or was motivated by some purpose other than bringing a guilty person to justice; it does not necessarily require ill-will or hatred); and (5) the plaintiff suffered damages (the plaintiff may recover legal expenses, lost work, time, loss of reputation, and emotional distress)
Abuse of Process
Abuse of process is the misuse of the power of the court. The essence of the tort lies in using the legal process for an ulterior motice. The plaintiff must prove: (1) a legal procedure set in motion in proper form; (2) that is “perverted” to accomplish an ulterior motive; (3) a willful act perpetrated in the use of process that is not proper in the regular conduct of the proceeding; and (4) causing the plaintiff to sustain damages
Intentional Misrepresentation (Fraud/deceit)
The plaintiff must prove: (1) misrepresentation of a material past or present fact (there is no duty to disclose a material fact unless the defendant: (a) stands in a fiduciary relationship to plaintiff, (b) is selling real property and knows the plaintiff is unaware of, and cannot reaosnably discover, material information about the transaction, or (c) has spoken and their utterance deceived the plaintiff); (2) scienter (when the defendant made the statement, they knew or believed it was false or that there was no basis for the statement; and (3) intent to deceive; (4) causation (plaintiff actually relied on representation; if a third-party relies on the defendant’s representation, the defenadant will be liable if they could reaosnably forsee that the third party would so rely); (5) justifiable reliance (the plaintiff’s reliance was justifiable; reliance generally is justifiable only on the representations of fact; the plaintiff is under no obligation to investigate the fact; reliance is not justifiable if the facts are obviously false; reliance on opinion is justifiable only if the defendant offering the opinion has a superior knowledge of the subject matter) and; (6) damages (plaintiff must suffer actual pecuniary loss)
Negligent Misrepresentation
Generally, this action is confined tos misrepresentation made in a commercial setting, and liability will attach only if reliance by the particular plaintiff could be contemplated. In some jurisdictions, the accountant who regularly conduct audits and furnishes financial statements and opinions routinely required by lenders, investors, purchasers, or others is not liable unless he/she is informed that an identified third party or parties will be using the statement for a particular purpose. In other jurisdictions, the accountant who regularly conducts audits and furnishes financial statements and opinions routinely required by lenders, investors, purchasers, or others can be liable if the plaintiff was reasonably foreseeable. The plaitiff must prove: (1) misprepresentation by the defendant in a business or professional capacity; (2) breach of duty towards a particular plaintiff; (3) causation; (4) justifiable reliance, and (5) damages
Interference with Business Relations
Plaintiff must prove: (1) existence of a valid contractual relationship between plaintiff and a third party or valid business expectancy of the plaintiff; (2) the defendant’s knwoledge of the relationship or expectancy; (3) intentional interference by the defendant inducing a breach or termination of the relationship or expectancy, and (4) damages
Interference with Business Relations - Privilege
The defendant’s conduct may be privileged if it is a proper attempt to obtain business for itself or protect its interests. A privilege is more likely to be found if the defendant: (1) interfered only with the plaintiff’s prospective business rahter than with existing contracts; (2) used commercially acceptable means of persuasion rather than illegal or threatening tactics, (3) is a competitor of the plaintiff seeking the same prospection customers, or; (4) has a financial interst in or responsibility for the third party, or is responding to the third party’s request for business advice
Trade Libel
Trade libel imposes tort liability for statements injurious to a plaintiff’s business or product. Unlike defamation, it is not intended to compensate for harm to the personal reputation of the owner/manager of the business. Proof of special damages is required. Damages for mental suffering are not available. Defenses include truth, as well as priviege of fair competition (e.g., making general comparisons to a competitor’s product). Plaintiff must prove: (1) publication; (2) of a false and derogatory statement; (3) with malice; (4) relating to the plaintiff’s title to his business property, the quality of his business, or the quality of its products, and; (5) causing special damages as a result of interference or damage to business relationships.
Slander of Title
Similar to trade libel, slander of title protects against false statements that harm or call into question the plaintiff’s ownership of real property. The plaintiff must prove: (1) publication; (2) of a false statement; (3) derogatory to the plaintiff’s title; (4) with malice; (5) causing special damages; and (6) as a result of diminished value in the eyes of third parties
Battery Elements
(1) defendant intends to cause contact with the plaintiffs person; (2) defendants affirmative conduct causes such contact; and (3) the contact causes harm or is objectively offensive to the plaintiff’s person
Battery Information
Intent required is intent to make contact - it is the intent to do the act that leads to contact and it is not intent to harm. Knowledge with substantial certainty that contact will occur is sufficient. CA and some jurisdictions require “dual” intent meaning (1) intent to make contact; and (2) purpose of harm of offense. Contact must be volitional; sufficient for contact to be made with something closely associated with the plaintiff. The test is what would be offensive to an ordinary person not unduly sensitive as to personal dignity; bodily harm is not required
Assault Elements
(1) defendant intends to cause the plaintiff to anticipate an imminent and harmful or offensive contact with plaintiffs person; and (2) the plaintiff was placed in imminent apprehension as a result of the defendant’s conduc
Assault Information
The defendant’s apparent ability to cause harm can be sufficient to place the plaintiff in anticipation of harm. Apprehension means the person has to feel the apprehension and not learn about it afterward. Apprehension does not mean fear - we need apprehension, not fear
False Imprisonment Elements
(1) the defendant intends to confine the plaintiff within a limited area; (2) the defendant’s conduct caused the plaintiffs confinement; and (3) the plaintiff is conscious of that confinement
False Imprisonment Information
“Moral persuasion” is insufficient to establish confinement. Confinement can occcur as a result of false legal authority or improper legal authority. It is sufficient if the defendant fails to release the plaintiff from a confinement despite owing a duty to do so. Reasonable means of escape, if one exit of a room/building is locked with plaintiff inside, but another reasonable means of exit is left open, there is no imprisonment (exit must be readily available and a safe means). Failure to remember the confinement after the fact is insufficient to show plaintiff was conscious of confinement. The test is whether the plaintiff was conscious of the confinement as it was happening. A minority of jurisdictions allow recovery if plaintiff was conscious of the confinement OR was harmed by it.
Intentional Infliction of Emotional Distress (IIED) Elements
(1) Intended to cause exteme and severe emotional distress upon the plaintiff, or knew with substantial certainty that the plaintiff would suffer severe emotional distress; (2) with conduct that is extreme and outrageous; and (3) the plaintiff suffered severe and extreme emotional distress
Intentional Infliction of Emotional Distress (IIED) Information
It is not the intent to do the act, it is the intent to cause severe emotional distress upon the plaintiff with the act. In minority jurisdictions, CA included, require that the conduct be directed at the plaintiff with the plaintiff present. Conduct is extreme if it exceeds all possible limits of decency in a civilized society and is especially calculated to inflict severe emotional distress. Mere insults and vulgarities will not suffice. The context and manner in which the conduct is directed at the plaintiff is to be established. The emotional distress must be beyond what a reasonable person could endure
Trespass to Land Elements
(1) the defendant commits an intentional act; and (2) that causes the physical invasion onto the land of another
Trespass to Land Information
Defendant does not have to intend harm to land. Defendant only needs to intend to do the act that leads to the physical invasion onto the land of another. Harm is not required (breaking a blade of grass will suffice). Physical invasion can be (1) of the airspace above the land; (2) of the subsurface; or (3) when someone fails to remove something from the property after consent or privilege to be on property has been withdrawn.
Trespass to Chattels Elements
(1) They intend to act that interfere’s with another’s property; and (2) the act interferes with the plaintiff’s right of possession in the personal property/chattel (i.e., harm)
Trespass to Chattels Information
Only intent to do that act is necessary. The defendant need not intend to interfere. Dispossession is sufficient. Impariment as to the property’s condition, quality, or value is sufficient. Deprivation of use for a substantial period of time is sufficient. Bodily harm is caused to the possessor, or harm is caused to some person; or thing in which the possessor has alegally protected interest is sufficient
Conversion Elements
(1) intentional exercise of dominion or control over a chattel; (2) which so seriously intereferes with the right of another to control it that the action may justly be required to pay the other the full value of the chattel
Conversion Information
The chattel can be a document if the contents of the document are capable of causing economic damage - literary property, scientific invention, trade secrets, or info held to be sold. In determining he seriousness of the interference and the justice of requiring the actor to pay the full value, the following factors are important: (1) extent and duration of the actor’s exercise of dominon of control; (2) actor’s intent to assert a right in fact inconsistent with the other’s right of control; (3) actor’s good faith; (4) extent and duration of the resulting interference with the other’s right of control; (5) harm done to chattel; and (6) inconvenience and expense caused to the other
Actual Consent Elements
(1) A plaintiff consents to the tortious conduct of another if the plaintiff is willing for that conduct to occur. Willingness may be express or inferred from the facts and plaintiff’s conduct
Actual Consent Information
Willingness need not amount to desire. Revocation of actual consent: When plaintiff clearly communicates a revocation of actual consent to the plaintiff, the consent is generally no longer legally effective. An exception exists when it would be unreasonably burdensome for the defendant to immedietly comply with the revocation. Consent doesn’t apply retroactively
Implied Consent (Presumed Consent) Elements
A defendant is not liable for tortious intentional conduct if: (1) under prevailing norms, the defendant is justified in engaging in the conduct in the absence of the plaintiff’s actual or apparent consent; and (2) the defendant had no reason to believe that the plaintiff would not have actually consented to the conduct if the defendant had requested the plaintiff’s consent
Self-Defense Elements
A defendant has a privilege to use force against the plaintiff for the purpose of defending themselves against the plaintiff’s unprivileged use of force if: (1) the defendant reasonably believes that force is immedietly necessary to protect himself against the force, even though there is in fact no necessity (when the threat of force upon the defendant no longer exists, the privilege to use self-defense terminates. A defendant may be liable for conduct done in the name of self-defense if there is no immediacy); and (2) the amount of force is or reasonably appears to be necessary for protection against the threatened force (to justify resistance with a deadly weapon the plaintiff must have reasonable apprehension of loss of life or great bodily injury)
Self-Defense of a Third Person Elements
A defendant has a privilege to use force against the plaintiff for the purpose of defending a third person against the plaintiff’s unprivileged use of force if: (1) the defendant reasonably believes that force is immedietly necessary to protect the third person against immediate harm; and (2) the amount of force is or reasonably appears to be necessary for protection of the third person against the threatened force (meaning the amount of force defendant may use is the same amount of force the victim could have used in the same circumstances. The “D” steps in the victims shoes)
Duty to Retreat
Majority Rule: No need to retreat and a defendant can use deadly force if they reasonably believe deadly force is immedietly necessary to protect against the threat of death or great bodily injury. Minority Rule: before using deadly force in self-defense the defendant must attempt to make a reasonable retreat, except when in their home
Defense of Property
The privilege to defend property is limited to the use of force reasonably necessaary to the situation as it appears to the defendant against unlawful intrusion. (1) the intrusion must be unlawful; and (2) the privilege to defend using deadly self-defense is only allowed when the intruder threatens personal safety of the defendant or his family; the defendant may use deadly force if it is necessary in the circumstances
Shopkeeper’s Privilege
(1) A store, or its agent, will have a privilege to detain a plaintiff if (1) they have reasonably grounds to believe the plaintiff engaged in a theft of the defendant’s store; and (2) they detain the plaintiff in a reasonable manner (defendant. Must only use force which is reasonable under the circumstances; only non-deadly force can be used; the detention can take place in the immediate vicinity of the store); and (3) they detain the plaintiff for a reaosnable amount of time (a reasonable time is that which is reasonably necesssary to determine if a theft occurrred under the circumstances
Recapture of Chattels
(1) where another’s possession began lawfully, one may use only peaceful means to recover chattel; and (2) force may be used to recapture chattel only when in hot pursuit of one who had obtained possession wrongfully (a demand to return the chattel must precede the use of force, unless the circumstances make it clear that the demand would be futile or dangerous. Only reasonable force may be used, not force sufficient to cause death or serious bodily injury)
Discipline
(1) A parent (or someone temporarily responsible for them) may use reasonable force in disciplining children, taking into account factors, such as age, and condition of child, the seriousness of the behavior, and apparent motive behind it (corporal punishment does not violate the due process clause of the Eighth Amendment against cruel and unusual punishment); and (2) a teacher’s privilege to discipline is more properly predicated on the need to maintain reaosnable order within the classroom and other school facilities (the use of force to punish through pain is not necessary to maintain order/safety, thus corporal punishment is prohibited in public schools unless expressly authorized by statute)
Necessity
A person may interfere with the real or personal property of another when: (1) it is reaosnably and apparently necessary in an emergency; (2) to avoid injury from a natural or other force; and (3) when the threatened injury is substantially more serious than the invasion is undertaken to avert it
Public Necessity
A defendant can raise public necessity as a defense if they acted to avert an “imminent public disaster.” (absent legislation, no right of recovery)
Private Necessity
Can be a defense when the action was to prevent serious harm to a limited number of people (the defendant will still be liable for actual damage caused by the action)
Authority of Law (Law Enforcement Privilege)
(1) a law enforcement officer acting within the scope of employment is privileged to use force against another for the purpose of arresting or otherwise confining somoene, investigating; terminating; or preventing crime; or otherwise enforcing the law; and (2) the content and scope of privilege are determined largely by applicable constitutional law principles and criminal law rules
Negligence
The elements necessary are: (1) a duty to use reasonable care; (2) a failure to conform to the required standard (breach of duty); (3) a reasonable close causual connection between the tortious conduct and the resulting injury (actual causation or “but for” - the act actually caused the injury); (4) the injury to the plaintiff must be fairly within the scope of liability of the defendant’s tortious conduct - is the act foreseeable that it could cause injury; and (5) actual loss or damage resulting to the interest of another
Res Ipsa Loquitur
In some cases, the very occurrence of an event may allow for an inference to be made by the fact finder that a defendant breached their duty when there is an absence of other direct evidence to establish breach. Requires: (1) the accident causing the injury is a type that would not normally occur unless someone was negligent; and (2) the negligence is probably attributable to the defendant meaning that this type of accident ordinarily happens because of the negligence of someone in the defendant’s position (evidence that the instrumentality causing the injury was in exclusive control of the defendant can establish the second element). If applicable, the jury may make an inference that defendant breached (the plaintiff does not automatically win (the plaintiff must prove causation and damages; the defendant may be able to rebut the presumption). If applicable, and an inference can be made that the defendant breached, how strong the inference is, will depend on the circumstances of the accident
Eggshell Doctrine
A defendant must take the plaintiff as he finds him and hence may be liable for damages for aggravation of a pre-existing illness
Palsgraf Doctrine
Majority Cardozo: a defendant owes a duty to those in the zone of danger.Plaintiff’s are in the zone of danger if it is reaosnably forseeable that those plaintiff’s would be harmed as a result from the defendant’s actions. Minority Andrews: Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B, or C alone
Negligent Infliction of Emotional Distress (NIED)
A duty to avoid NIED may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The P usually must satisfy two requirements: (1) plaintiff must be within the “zone of danger,” (plaintiff must usually show that their distress has been caused by a threat of physical impact; i.e., driver negligently ran a red light and skidded to a stop inches away from Pedestrian, who was crossing in a crosswalk. Plaintiff’s shock from nearly being run over caused her to suffer a heart attack. Plaintiff can recover for NIED because she was in the zone of danger); and (2) plaintiff must suffer physical symptoms from the distress (majority rule requires that defendant’s conduct cause plaintiff emotional distress that manifests itself in physical symptoms (i.e., nervous breakdown, miscarriage, heart attack etc)
NIED Bystander Not in Zone of Danger Seeing Injury to Another
A bystander outside the zone of danger who sees the defendant negligently injure another cannot recover damages for their own distress, unless: (1) the plaintiff and the person injured by the defendant are closely related; (2) the plaintiff was present at the scene of the injury; and (3) the plaintiff personally served or perceived the event. (In these instances, physical symptoms from the distress are not required
NIED Special Relationship between Plaintiff and Defendant
Defendant may be liable for directly causing the plaintiff’s severe emotional distress when a duty arises from the relationship because plaintiff and defendant, such that defendant’s negligence has great potential to cause emotional distress. i.e., doctor negligently confused patient’s file for another and told plaintiff they had a terminal illness; plaintiff becomes extremely distressed; plaintiff can recover for NIED because a false diagnosis of terminal illness creates a foreseeable risk of severe emotional distress. i.e., mortuary negligently cremates the body of plaintiff’s mother contrary to plaintiff’s explicit instructons that her body be buried; plaintiff can recover for NIED because mishandling a relative’s corpse creates a foreseeable risk of severe emotional distress to family members
Landowner’s Duty of Care - Trespassers
The duty of a landowner to protect against harm to others also exists in locations where the public might not lawfully meet the property, but where the landowner knows or reasonably knows or reasonably should know trespassers might meet their property (reasonably forseeable trespassers). A landowner is not under a duty to protect against trespassers in areas where they do not know, or reasonably shouldn’t have known that a trespasser might come in contact with the property
Landowner’s Duty of Care - Invitees
In order for a person to be classified as an invitee is sufficient that he go on the land in furtherance of the owner’s business (it is not necessary that the invited person gain an advantage by his entry on the land). Towards an invitee, the owner of the premises has a duty to exercise reasonable care in keeping the premises safe for use by the invitee. There may circumstances by which this duty is extended to include the responsibility to protect the invited from criminal attacks by third parties.
Landowner’s Duty of Care - Licensees
A social guest is considered a licensee and has been defined as someone who enters the premises of the owner by permission but for the licensees own purpose (Therefore, a social guest is a person who goes on another’s property for companionship, diversion, or entertainment). A social guest as a licensee generally must take the premises of his host as he finds them. However, the owner of the premises has a duty towards the licensee of any hidden dangers which are unknown to his guest of which he, has knowledge, and to refrain from injuring his guest willfully or wantonly
Compensatory Damages
A plaintiff in a negligence case must suffer actual harm. Compensatory damages are meant to compensate the plaintiff for that harm caused. (i.e., it is meant to restore the plaintiff to the position they were in before harm occurred; nominal damages, meant to acknowledge a right are not available in a negligence claim)
Collateral Source Rule
Prevents a plaintiff from receiveing compensation for damages that have already been paid by a third party (i.e., even if medical insurance pays for the plaintiff’s medical expenses following injury for negligence, the defendant will still be responsible for the full amount of damages)
Punitive Damages
Are meant to punish a defendant and deter conduct, is only available in negligence cases where the defendant’s conduct was particularly egregious
Contributory Negligence
In contributory negligence jurisdictions (minority), a plaintiff may not recover if they contribute in any way to their own injury (i.e., it is a defendant’s defense to a negligence claim when the plaintiff contributes to their injury). Joint tortfeasors remain jointly and severally liable for the whole amount for damages to plaintiff. A defendant cannot claim the plaintiff was contributory negligent, thus barring the plaintiff’s recovery, if the defendant had the last clear change to avoid the accident (“last clear chance” doctrine states when they have the last chance to avoid it 100% of the injury is on the plaintiff). When a plaintiff has contributed to their own injury, joint and several liability does exists in contributory negligence cases
Comparative Negligence
In comparative negligence cases (majority), a plaintiff’s recovery will be reduced by their own proportional share of responsibility of their injury. Pure: a plaintiff’s recovery will be reduced by their own % of responsibility regardless of what % it is. Modified: a plaintiff will only be able to recover if his/her own negligence is not more than the defendants. Joint tortfeasors in comparative negligence jurisdictions can defend against paying the entire amount of damages by the % of the plaintiff’s own negligence and/or the % of the negligence of other joint tortfeasors. When a plaintiff has contributed to their own injury, joint and several liability does not exists in comparative negligence cases
Assumption of Risk
A person assumes the risk of injury when the person: (1) has actual or constructive knowledge of the risk; (2) appeciates its dangerous characters; and (3) voluntarily accepts the risk, with the time, knowledge, and experience to make an intelligent choice
Statutes of Limitations and Repose
For purpose of SOL, the cause of action acrrues when the plaintiff discovered or should have discovered the negligently inflicted injury rather than at time of injury
Interspousal Immunities
Only applies to personal injuries and not to property damage. Traditionally, interspousal immunity prevented one spouse from using the other in a personal-injury action. In most jurisdictions today, interspousal immunity has been abolished, and either spouse could sue the other for personal-injury
Parent-Child Immunity
Only applies to personal injuries and not to property damage. Traditionally, parents were immune from tort claims brought by their children. Modernly, there has been a clear trend toward abolising or greatly limiting parental immunity (judicial abrogation has taken longer than it has for interspousal immunity). Courts generally allow parents to be held liable in areas other than core parenting activities. For example, most states allow children to sue parents for: (1) injuries arising from auto accidents, (2) sexual abuse and intentional tortious conduct; and (3) when the parent is acting in a dual capacity, such as the parent is a physician treating the child for an injury (medical malpractice claim allowed)
Charities
Most states have either totally or partially abolished the common law rule of charitable immunity. Some states cap the amount of damages recoverable from a charitable organization
Federal Governmental Immunity
Under the Federal Tort Claims Act (FTCA), the U.S. government waives immunity in tort actions, with the folllowing exceptions: (1) certain enumerated torts (assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation and deceit, interference with contract rights; intentional torts committed by law enforcement officers are not excepted; (2) discetionary functions (i.e., planning or decision making); (3) assertion of the government’s immunity by a government contractor in a product’s liability case if the contractor conformed to the government specifications and warned the government of any known dangers of the product; and (4) certain traditional government activities (i.e., postal, tax collection, property seizure, admiralty, quarantine, money supply, and military activity). When the federal government is liable under the FTCA, it is liable in the same manner and to the same extent that a private person under the same circumstances would be, except it is not liable for punitive damages
State Governmental Immunity
Most states waived sovereign immunity, at least partially, through legislation. However, the legislation enacted has imposed limits on the amount of recovery, and the circumstances under which the state can be held liable. They have also created procedural barriers to recover that do not exist in claims against private defendants. State tort claims acts vary greatly
Duty Standard of Care - General
Generally, a person owes a duty to act as a reasonably prudent person would under similar circumstances
Duty Standard of Care - Minors
A minor owes a duty to exercise the same care that a reasonably careful child would with the same age, intelligence, maturity, training, and experience would under similar circumstances
Duty Standard of Care - Minors in Adult Activites
A minor who is engged in an adult activity is held to the same standard as a reasonably prudent adult engaging in that activity. Adult activites are those that are inherently dangerous and normally performed by adults (18+ years)
Duty Standard of Care - Professionals
Must adhere to the standards of their profession as what is customary to their field. A specialist within a profession may be held to a standard of care greater than that required of the general practitioner
Duty Standard of Care - Storeowners
Duty to inspect and ensure the safety of the premises for customers
Duty Standard of Care - Landowners to Known Trespassers
duty to protect against harm where the landowner knows, reasonably knows, or reasonably should know trespassers might meet the property
Duty Standard of Care - Landowners to Unknown Trespassers
Unless the landowner knows trespassers frequent the area, only has a duty to refrain from intentionally or recklessly causing an injury with a dangerous condition
Duty Standard of Care - Landowners to Invitees
use reasonable care to search for and anticipate dangeorus conditions and warn the invitee about any dangerous conditions and/or make the conditions safe
Duty Standard of Care - Landowners to Licensees
Duty to warn of any hidden dangers which are unknown to the guest of which the owner has knowledge, and to refrain from injuring his guest willfully and wantonly
Negligence Per Se
A clearly stated duty imposed by statutes providing for criminal and regulatory penalties may replace the more general duty of prudent reasonable care if: (1) the plaintiff is within the class of person sought to be protected by the statute; and (2) that statute was designed to prevent the type of harm suffered by plaintiff
Breach - General
a person breaches when they fail to conform to the applicable standard of care
Breach - Negligence Per Se
Where a duty is imposed by a statute to a particular defendant, a violation of that duty constitutes a breach
Breach - Res Ipsa Loquitur
Negligence is inferred from the mere occurrence of certain acceidents, indicating it likely would not have occurred without negligence
Intervening Criminal Acts
Generally breaks the chain of causation unless foreseeable
Intervening Act
If the intervening act was foreseeable, than they are not superseding which does not cut off liability
Superseding Act
If intervening acts are unforseeable, than it is superceding, which cuts off liability
Rescue Doctrine
an injured rescuer can sue the party which caused the danger requiring the rescue in the first place
