MBE Torts Flashcards
Intentional Torts: General
1) Tortious conduct: Must be a voluntary act. Defendant must have directed the physical muscular movement. (or conduct)
2) Requisite mental state: Established if Defendant acts intentionally (with purpose of causing the consequence of his act; or knowing that the consequence is substantially certain to result)
- children/mentally incompetent: May be liable if they act intentionally
- transferred intent: intent satisfied if intended to cause contact with a third party but instead caused contact with the plaintiff (same tort against a different person) OR intended to commit an assault on a plaintiff—but instead committed a battery (different tort against the same person).
- IIED — recklessness standard: knows of the risk of harm created by the conduct, and the slight burden relative to the magnitude of risk, failure to adopt precaution a demonstration of indifference to the risk
3) Causation: when the resulting harm was legally caused by the defendant’s conduct. Legal causation = factual cause + proximate cause
- Factual cause: factual cause of harm when the harm would not have occurred absent the conduct (i.e., the “but for” cause).
- Proximate cause: limits a defendant’s liability. not subject to liability for harm the risk of which was not increased by the defendant’s intentional or reckless conduct.
BONUS
Participation in an Intentional Tort:
- A defendant who knowingly and substantially instigates, encourages, or assists another person’s commission of an intentional tort involving personal injury is subject to liability for that tort, even if the actor’s conduct does not independently satisfy all elements of the underlying tort.
Intentional Torts > Battery
BATTERY: A defendant is subject to liability to the plaintiff for battery if:
- He intends to cause a contact with the plaintiff’s person;
- His affirmative conduct causes such a contact; and
- The contact causes bodily harm or is offensive to the plaintiff.
vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv
transferred intent applies
- intended to cause contact with a third party but instead caused contact with the plaintiff (same tort against a different person) OR
- intended to commit an assault on a plaintiff—but instead committed a battery (different tort against the same person).
Harmful or Offensive Contact
- Harmful when it causes physical injury, illness, disease, impairment of bodily function, or death
- Offensive when a reasonable person would find the contact offensive (objective test). If the victim is hypersensitive, and the defendant knows that about the victim, the defendant may still be liable, unless the court determines that imposing liability would violate public policy.
- The plaintiff need not be aware of the contact when it occurs to recover.
- Indirect contact: contact need not be with the defendant himself
Contact with Plaintiff’s Person
- Contact with anything connected to the plaintiff’s person qualifies as contact with the plaintiff’s person for the purposes of battery
Causation
- A defendant who sets in motion a chain of events that causes contact with the plaintiff, whether the contact is direct or indirect, is subject to liability
Damages
- No proof of actual harm is required; the plaintiff can recover nominal damages.
- The plaintiff can recover damages from physical harm flowing from the battery.
- “Eggshell plaintiff” rule—a defendant is liable for all harm that flows from a battery, even if it is much worse than the defendant expected it to be.
- Punitive damages: if the defendant acted: outrageously; or with malice.
The defense to an intentional tort is consent, while the defense to negligence and strict liability is assumption of the risk.
Intentional Torts > Assault
Assault—defendant engages in an act that:
- The defendant intends to cause apprehension of such contact or to cause such contact itself.
and - Causes reasonable apprehension of an imminent harmful or offensive bodily contact;
Bodily Contact—not required
Plaintiff’s Apprehension
- Must be reasonable
- Plaintiff must be aware of the defendant’s action
Imminent
- Must be without significant delay
- Threats of future harm or hypothetical harm are not sufficient.
Mere Words
- Generally, “mere words do not constitute an assault.”
- Words can suffice if the defendant is able to carry out the threat imminently and takes action designed to put the victim in a state of apprehension, then there may be an assault.
Intent
may be present in one of two ways: The defendant must intend to cause either:
- An apprehension of imminent harmful or offensive contact; or
- The contact itself.
Damages
- No proof of actual damages is required; the plaintiff can recover nominal damages.
- The plaintiff can also recover damages from physical harm flowing from the assault.
- In appropriate cases, punitive damages may be available.
The defense to an intentional tort is consent, while the defense to negligence and strict liability is assumption of the risk.
Intentional Torts > Intentional Infliction of Emotional Distress (IIED)
Intentional Infliction of Emotional Distress (IIED)
Defendant intentionally or recklessly engages in extreme and outrageous conduct that causes the plaintiff severe emotional distress. Abusive language or conduct is more likely to be extreme and outrageous if the defendant knew about and deliberately exploited the plaintiff’s heightened susceptibility to emotional distress.
Extreme and outrageous conduct
- Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. The character of the conduct must be outrageous and the conduct must be sufficiently unusual to be extreme.
Hypersensitive Plaintiff
- defendant is liable if aware of the plaintiff’s hypersensitivity.
Immediate Family member
May recover if:
- PRESENT at the time of the conduct, and
- PERCIEVES the conduct, and
- SUFFERS severe emotional distress
Bystander - Stranger
May recover if:
- PRESENT at the time of the conduct,
- PERCIEVES the conduct, and
- SUFFERS bodily injury as a result of emotional distress (physical manifestation)
Intentional Torts > False Imprisonment
False Imprisonment
* Defendant intends to confine or restrain another within fixed boundaries;
* The actions directly or indirectly result in confinement; and
* Plaintiff is conscious of the confinement OR harmed by it
Confined Within Bounded Area
- Area can be large
- Area need not be stationary
Methods of Confinement
- Use of physical barriers, physical force, imminent threats, invalid invocation of legal authority, duress, or refusing to provide a safe means of escape
- The defendant’s use of moral pressure or future threats does not constitute confinement or restraint by duress, and a plaintiff is not imprisoned if she willingly submits to confinement.
- A court may find false imprisonment when the defendant has refused to perform a duty to help a person escape
Intent
- Defendant must act with the purpose of confining the plaintiff; or knowing that the plaintiff’s confinement is substantially certain to result.
- Negligent confinement—defendant not liable
- Transferred intent applies.
Shopkeeper’s privilege
A shopkeeper (or its employee) can, for a reasonable time and in a reasonable manner, detain a suspected shoplifter for the purpose of:
- (i) investigating,
- (ii) recapturing, or
- (iii) facilitating an arrest.
Merchant must have detained the plaintiff on or in the immediate vicinity of the merchant’s premises.
Defenses to Intentional Torts Involving Personal Injury > Consent
1) Consent
Express consent—the plaintiff, by words or actions, manifests the willingness to submit to the defendant’s conduct.
* The defendant’s conduct may not exceed the scope of the consent.
* Consent by mistake—a valid defense unless the defendant caused the mistake or knew of it and took advantage of it
* Consent by fraud—invalid if it goes to an essential matter. If the fraud only goes to a collateral matter, consent is still a valid defense.
Implied consent—the plaintiff is silent (or otherwise nonresponsive) where their silence and continued participation can reasonably be construed as consent
* Emergencies—it is fair to assume that someone in need of rescuing would allow a rescuer to touch him absent explicit consent
* Injuries arising from athletic contests—consent within the scope of the sport. A defendant could be liable if the conduct is reckless
* Mutual consent to combat
Capacity—Lack of capacity may undermine the validity of consent (e.g., youth, intoxication,
incompetency).
The defense to an intentional tort is consent, while the defense to negligence and strict liability is assumption of the risk.
Defenses to Intentional Torts Involving Personal Injury > Self-Defense (and Defense of Others)
Self-Defense
1) Use of Nondeadly Force
A defendant may use nondeadly force for the purpose of defending himself against another only if the defendant reasonably believes that:
- i) The other is intentionally inflicting or about to intentionally inflict unprivileged force on the defendant;
- ii) The force that the defendant is using is proportionate to the other’s use of force or threat of force; and
- iii) The defendant can prevent the other’s force or threat of force only by the immediate use of the force the defendant is employing.
Use of reasonable force
- force that is reasonable to defend against an offensive contact or bodily harm (i.e., not excessive).
No Duty to retreat
- need not retreat before using reasonable, proportionate force. Even if he can do so safely
Initial aggressor—NOT permitted to claim self-defense
- unless the other party has responded to nondeadly force with deadly force (they become the aggressor)
Injuries to bystanders—
- A person acting in self-defense is not liable for injury to bystanders as long as the injury was accidental and the actor was not negligent toward the bystander.
2) Use of Deadly Force
A defendant may use deadly force for the purpose of defending himself against the plaintiff only if the defendant reasonably believes that:
- i) The plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force upon the defendant;
- ii) The defendant is thereby put in fear of either death, serious bodily harm, or rape by the use or threat of physical force or restraint; and
- iii) The defendant can safely prevent the peril only by the immediate use of deadly force.
No duty to retreat
- In most jurisdictions, when a defendant uses deadly force, the defendant has no duty to retreat even if he can do so safely (e.g., “stand your ground” laws).
Burglary exception
- permits a defendant to use deadly force to prevent a burglary of the defendant’s home, even if the defendant was in peril of bodily harm that does not constitute serious bodily harm, death, or rape
3) Defense of Others—may use reasonable force in defense of others, if the others would be entitled to use self-defense
Defenses to Intentional Torts Involving Personal Injury > Defense of Property
4) Defense of Property
a. Reasonable force—may be used if the person reasonably believes it is necessary to prevent
tortious harm to the property
b. Deadly force—can never be used
- A person may never use deadly mechanical devices to defend property (e.g., a spring gun).
c. Recapture of chattels (personal property)
- Reasonable force may be used to reclaim personal property that has been wrongfully taken, but only if you first request its return, unless that would be futile.
- If the original taking was lawful (like a bailment) then only peaceful means may be used.
d. Force to regain possession of land
- Common law—reasonable force permitted
- Modern rule—use of force is no longer permitted; only legal process
Defenses to Intentional Torts Involving Personal Injury > Parental Discipline
Parental Discipline—parents may use reasonable force as necessary to discipline children.
Defenses to Intentional Torts Involving Personal Injury > Privilege of Arrest
Privilege of Arrest
a. Private citizen — Permitted to use reasonable force to make an arrest in the case of a felony IF:
- The felony has actually been committed; and
- The arresting party has reasonable grounds
to suspect that the person being arrested has committed the felony. - (reasonable mistake as to the identity of the felon is ok, mistake as to whether the felony was actually
committed is not)
b. Police
- Must reasonably believe that a felony has been committed and that the person arrested committed it
- An officer who makes a mistake as to whether a felony has been committed is not subject to tort liability.
c. Misdemeanor
- An arrest by a police officer may only be made if the misdemeanor was committed in the officer’s presence.
- An arrest by a private person may only be made if there is a “breach of the peace.”
Harms to Personal Property and Land > 1) Trespass to Chattels 2) Conversion
1) Trespass to Chattels
When a defendant intentionally interferes with the plaintiff’s right of possesion by:
a) Dispossessing the plaintiff of the chattel (harm is inferred); OR
b) Using or intermeddling with the plaintiff’s chattel AND proof of actual damages:
- actual harm to the chattel
- substantial loss of use of the chattel or
- bodily harm to the plaintiff
Intent
- Only the intent to do the act; need not intend to interfere
Damages
- May recover actual damages, damages resulting from the loss of use, nominal damages, or the cost of repair
2) Conversion —intentionally committing an act depriving the plaintiff of possession of his chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff entirely of the use of the chattel.
Intent
- Defendant must only intend to commit the act
- Mistake of law or fact is not a defense.
Damages
- plaintiff can recover the chattel’s full value at the time of conversion
Trespass to Chattels vs. Conversion—The more EXTREME the interference, the more likely the court will find CONVERSION.
Courts consider the following factors:
- The duration and extent of the interference;
- Defendant’s intent to assert a right inconsistent with the rightful possessor;
- Defendant’s good faith;
- Expense or inconvenience to the plaintiff; and
- Extent of the harm
Harms to Personal Property and Land > Trespass to Land
Trespass to Land—
- Defendant’s intentional act causes a physical invasion of the land of another
vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv
Intent
- Defendant need only have the intent to enter the land or cause the physical invasion.
- Intent to commit a wrongful trespass is NOT required.
- Mistake of fact is not a defense.
Defendant need not enter land
- intentionally flooding the plaintiff’s land, throwing an object (e.g., a rock) onto it, or intentionally emitting particulates into the air over the land will each suffice
No Requirement of Damages
- As with most other intentional torts, damage is presumed; i.e., actual injury to the land is not an essential element of the cause of action.
VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV
NECESSITY DEFENSE
In general
Private necessity Defense — available to a person who enters onto the land of another or interferes with that individual’s personal property to prevent an injury or other severe harm
- Even though trespass is excused, The defendant is LIABLE for actual damages they have caused, (but not nominal damages)
- The landowner may not use force to exclude the person.
Public Necessity Defense
When necessary to protect a large number of people from public calamities.
- NOT liable for damages to the property
Harms to Personal Property and Land >
Nuisance: Private v. Public
1) Private Nuisance:
Substantial and Unreasonable interference with the USE and ENJOYMENT of someone’s property
- Objective Standard: must be unreasonable to an objective person, even if the plaintiff is not personally bothered by it. – someone’s special allergies, etc. not considered
- An interference is unreasonable if the severity of the plaintiff’s harm outweighs the utility of the defendant’s conduct.
2) Public Nuisance:
Unreasonable interference with the health, safety, or property rights that affects the entire community at large.
- USUALLY brought by a public official or entity. (e.g., a state)
- However, A private citizen can sue for public nuisance only if they suffer unique harm in kind from that suffered by members of the general public
vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv
“Coming to the Nuisance” - Generally NOT a Defense
- It is generally not a defense that the plaintiff “came to the nuisance” by purchasing property in the vicinity of the nuisance with knowledge of the nuisance.
- However, it may be considered by the jury in determining whether the plaintiff can recover for the nuisance. Damages may be decreased.
- (i.e., the purchaser is still entitled to reasonable use or enjoyment of his land to the same extent as any other owner as long as he buys in good faith and not for the sole purpose of a harassing lawsuit.)
Negligence > 3 Types of Negligence
1) Common Law Negligence
2) Negligence Per Se
3) Res Ipsa Loquitur
The defense to an intentional tort is consent, while the defense to negligence and strict liability is assumption of the risk.
Negligence > Elements
1) Duty: An obligation toward another party
2) Breach: Failure to meet that obligation
3) Causation: Cause in fact (actual cause) and Proximate Cause (legal cause)
4) Damages: The loss suffered. Physical Harm required
The defense to an intentional tort is consent, while the defense to negligence and strict liability is assumption of the risk.
CL Negligence: Duty >
(1) owed to who? (2) standard of care?
1) Forseeable Plaintiffs (zone of danger)
2) Reasonably Prudent Person under the circumstances
- Objective standard - D Is presumed to have average mental abilities and knowledge
Modified standard for
- physical charachteristics: blindess, deafness, etc.
- children
Intoxicated persons
- objective standard (reasonable sober person) unless involuntary intoxication (reasonable intoxicated person)
CL Negligence: Duty > Standard of care for professionals?
Like other similar professionals with same background and training in that community
CL Negligence: Duty > Standard of care for a child?
like a reasonable child of similar age, intelligence, and experince
Exception:
- Adult activities - child who is engaged in adult activities is held to the objective standard for adults
CL Negligence: Duty > Parent’s Duty to prevent their child from committing harm?
When the parent knew or should have known their child was likely to commit harm
Parents have a duty to exercise reasonable care in the supervision of their minor children
CL Negligence: Affirmative Duty to Act (Special Relationships)
Generally, there is NO DUTY to aid, assist, or rescue. However–once you begin, must administer reasonable care.
- Exception: Special Relationships
- or If you create the risk
SPECIAL RELATIONSHIPS create an AFFIRMATIVE DUTY of regular reasonable care (regular standard) to aid or assist those persons and prevent reasonably foreseeable injuries. (Not a superman duty)
- Parent/child
- Hospital/patient
- Employer/employees
- Shopkeeper/business invitees
- Common carrier/passengers
- Custodian/person in custody
- Innkeeper/guests
The higher standard we place on the special relationship does not change the reasonable care standard, but rather it places the AFFIRMATIVE duty to act, where usually there is no affirmative duty to do anything
Special Relationships > Standard of Care
By authority—a person with the ability and actual authority to control another has a duty to exercise reasonable control.
- Example: A warden’s control over a prisoner; a parent’s control over a child
By relationship—defendant has a special relationship with the plaintiff
- Example 28: Common carrier-passenger; innkeeper-guest
These affirmative duties are not a Superman duty. It is a duty of reasonable care to aid or assist those persons and prevent reasonably foreseeable injuries.
Rescue Doctrine (Firefighter Rule)
Rescue Doctrine (Firefighter rule)
- An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional’s injury if the injury results from a risk inherent in the job
- However, such professionals may recover for harm caused by another’s negligence if the harm did not result from a risk inherent to the professional’s job.
CL Negligence: Duty > Landowner’s standard of care owed to:
- Unknown Trespasser
- Known Trespasser or Licensee (social guests, friends)
- Invitee (BUSINESS invitee, economic purpose)
1) Unknown Trespasser
2) Known Trespasser or Licensee (social guests, friends)
3) Invitee (BUSINESS invitee, economic purpose)
- LOOK FOR invitee who becomes a trespasser if they exceed the permission given to them or enter somewhere where landowner expressly does not give them permission to go.
1) No duty of care (LOWEST)
2) Duty to warn of known dangers to the landowner (HIGH)
3) Duty to inspect, warn, clean up, and make safe (HIGHEST)
VVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVVV
Under the modern approach to land-possessor liability, land possessors owe a duty of reasonable care to all land entrants (except flagrant trespassers).
Under the modern approach to land-possessor liability, land possessors owe a duty of reasonable care to all land entrants (except flagrant trespassers).
CL Negligence: Duty > Landowner’s standard of care> Attractive Nuisance
ATTRACTIVE NUISANCE– (Landowner NEGLIGENCE theory)
Land possessors have the duty to protect child trespassers from artificial conditions on their land when:
- 1) the condition exists where the land possessor knows or should know that children are likely to trespass
- 2) the land possessor knows or should know that the condition poses an unreasonable risk of serious bodily harm or death to children
- 3) children of the trespasser’s age cannot reasonably discover or appreciate the risk and
- 4) the risk outweighs the condition’s utility and the burden of eliminating the risk.
A land possessor who breaches this duty and causes the child trespasser physical harm is liable for NEGLIGENCE.
Breach > Evidence of Custom
1. Generally
2. Professionals
3. Physicians (+ infomed consent)
BREACH—EVIDENCE OF CUSTOM
Generally
- evidence of custom is admissable, but not dispositive
Professionals
- Evidence of custom is admissible AND dispositive of breach of duty
- Compliance with custom is a shield = no breach
- Deviation from custom is a sword = breach
Physicians
Modern trend—national standard
Traditional rule—physician in the “same or similar” locality
Informed consent:
Doctors must explain risks of medical procedures and Patients must give informed consent
Doctors are not required to inform the patient if:
- The risks are commonly known;
- The patient is unconscious or otherwise unable to consent (incompetent)
- The patient waives/refuses the information;
- The patient would be harmed by disclosure (e.g., it would cause a heart attack).
Physicians unconsented physical contact
- A physician’s failure to secure a patient’s consent to the nature, type, or extent of physical contact that the physician intentionally causes as a battery
Negligent Infliction of Emotional Distress (NIED)
Negligent Infliction of Emotional Distress (NIED)
Zone of danger—a plaintiff can recover for NIED if:
1) The plaintiff was within the “zone of danger” of the threatened physical impact; and
2) The threat of physical impact caused emotional distress.
- analogous to assault (apprehension of contact).
Bystander recovery (Close relatives)
A bystander can recover for NIED if the bystander:
- Is CLOSELY RELATED to the person injured by the defendant;
- Was present at the scene of the injury; and
- personally observed the injury.
Special relationship scenarios
- Negligent mishandling of a corpse
- Negligent medical information (e.g., a negligent misdiagnosis)
Physical manifestation—most jurisdictions require some physical manifestation of distress (such as nausea, insomnia, or miscarriage).
Strict Liability: 2 Scenarios
1) Wild Animals — Defendant is strictly liable for injury resulting from their animal’s dangerous propensities.
- Wild Animal - SL
- Domestic Pets - NO SL unless that particular pet has known dangerous propensities
Scope of Risk:
- Defendant is liable only to foreseeable plaintiffs
- Injury must flow from the dangerous propensity
Superceding Causes Cut off Liability
- Defendant’s liability can be cut off by unforeseeable intervening forces (superceding cause)
Persons Protected
- Licensees and invitees- Strictly Liable
- Trespassers - NO SL, must prove negligence
Trespassing Animals (commonly livestock)
- Owner of animal is strictly liable for damage caused by his animals while trespassing on another’s land as long as it was reasonably forseeable.
- Animals on PUBLIC Roads - Negligence Standard
Trespassing Pets
- Not SL unless owner knows or has reason to know the pet is trespassing on another’s property in a harmful way
vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv
2) Abnormally Dangerous Activity — strictly liable for personal injuries and property damage proximately caused by abnormally dangerous activity, regardless of precautions taken to prevent the harm
Definition: Abnormally Dangerous Activity
- (i) The activity must create a foreseeable risk of serious harm even when reasonable care is exercised;
- (ii) The activity is not commonly engaged in.
- Explosives, Hazardous chemicals, etc.
Scope of Risk:
- Defendant is liable only to foreseeable plaintiffs
- Injury must flow from the dangerous propensity
Superceding Causes Cut off Liability
- Defendant’s liability can be cut off by unforeseeable intervening forces (superceding cause)
vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv
DEFENSES - Assumption of the risk
DEFENSES - Unforeseeable Intervening Cause (Superceding Causes) - Cut off Liability
- Defendant’s liability can be cut off by unforeseeable intervening forces.
Contributory negligence is NOT a defense to Strict Liability
The defense to an intentional tort is consent, while the defense to negligence and strict liability is assumption of the risk.
Products Liability: 4 theories to sue
Bought something broken/defective. . .
1) Strict Product Liability (connected)
2) Inadequate warning (connected)
3) Negligence
4) Warranty
Products Liability > Strict Product Liability theory (or inadequate warning)
- connected
STRICT PRODUCT LIABILITY (for defective products)
Elements:
- The product was defective (in manufacture, design, or warning)
- The defect existed when the product left the defendant’s control; and
- The product was used in a reasonably foreseeable way
- The defect caused the plaintiff’s injury
TYPES OF DEFECTS
1) Manufacturing Defect - The product deviated from its intended design
2) Design Defect – the product conformed wiith its intended design
Two tests. The more technical the product is, the more likely it is that the risk-utility test will apply. Product is defective in design if:
- Consumer expectation test: it is less safe than the ordinary consumer would expect.
- Risk-Utility Test: the risks outweigh its benefits; must show that there is a reasonable alternative design
3) INADEQUATE WARNING (type of design defect)
- a failure to provide reasonable warnings or instructions regarding any nonobvious, foreseeable risk posed by its product if doing so will reduce that risk
Learned-intermediary rule
- a manufacturer of a prescription drug or medical device will not be held strictly liable for inadequate warnings or instructions if the manufacturer warned the prescribing physician about the risk of harm associated with that product.
vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv
PLAINTIFFS/DEFENDANTS
Plaintiffs – No privity requirement.
- ANYONE foreseeably injured by a defective product, including purchasers, other users, rescuers, and bystanders
Defendants – Any commercial supplier in chain of supply who sells the defective product, regardless of whether they were negligent (2nd element).
- Must be in the business of selling the product. No casual sellers.
- Service providers are NOT subject to strict products liability. (ex: dentist implanting defective synthetic tooth)
vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv
Not a Defense
b) comparative/contributory fault - negligence is foreseeable
c) Foreseeable product misuse, modification, alteration
- foseeable misuse, modification, alteration – still strictly liable, viewed as examples of comparative negligence.
DEFENSES BARRING recovery
a) assumption of the risk - BARS RECOVERY
- know and appreciate risk, still chose
b) Substantial change in the product - BARS recovery
Pure economic loss – no recovery
- No recovery if the defect in a product causes damage only to the product itself.
vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv
EVIDENCE speaking to defect - never dispositive
a) Compliance with governmental standards
- EVIDENCE that product is not defective, but not dispositive
b) “State of the art” defense
- In some jurisdictions, the relevant state of the art at the time of MANUFACTURE or WARNING is evidence that the product is not defective.
vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv
DISCLAIMERS, LIMITATIONS, WAIVERS DO NOT BAR CLAIMS FOR STRICT PRODUCT LIABILITY
There are 3 types of product defects: manufacturing defects, design defects, and warning defects. (Motorcycle example)
1) Manufacture: The motorcycle has plastic bolts where there are supposed to be metal bolts; the motorcycle was defectively manufactured.
2) Design: The motorcycle was built as designed, but it is unstable when carrying a passenger or heavy rider; the motorcycle’s design is defective.
3) Warning: The manufacturer should have warned riders that the motorcycle cannot accommodate passengers.
Defamation > Constitutional Requirements
Constitutional limitations will depend on the type of plaintiff.
1) Type of Plaintiff
a) Public official
- a person who has substantial responsibility or control over a government office, including a political candidate
b) Public figure
- i. General purpose public figure—a person of persuasive power and influence in society (celebreties)
- ii. Limited purpose public figure—a person who thrusts himself into a particular controversy (social activist)
c) Private individuals
- Most plaintiffs. Neither a public official/figure
2) Constitutional Limitations — P Must prove certain things in addition to regular defamation elements
Public official/figure (RECKLESS STANDARD)
- Plaintiff must prove that the person who made the statement acted with actual malice: either KNEW that it was false or acted with RECKLESS disregard (conscious disregard) for the truth
- (harder to prove defamation, more rights given for statements about these individuals)
Private individuals (NEGLIGENT STANDARD)
- P must prove that D knew the statement was false or acted with NEGLIGENT disregard for its falsity (should have known the statement was false)
Invasion of Privacy
Invasion of Privacy
- applies to people, not corporations
- right terminates upon death of P
1) Intrusion Upon Seclusion —Highly offensive and intentional intrusion on plaintiffs solitude, seclusion, or private affairs
- ex: phone tapping, hacking medical records, peeping toms
2) False Light —publicity given to false information about plaintiff with actual malice that places them in highly offensive and false light and results in damages
- ex: Writing a story about one person and including a mug shot of someone else.
- Qualified and absolute privilege defense apply
3) Appropriation of the Right to Publicity — unauthorized use of plaintiffs name or likeness for personal benefit (eg, Commercial advantage)
- ex: Utilizing someone’s voice in a commercial
4) Public Disclosure of Private Facts — publicity given to highly offensive and private matter concerning plaintiff that is not of legitimate public concern and results in damages
- Qualified and absolute privilege defense apply
vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv
Damages
- Emotional or mental distress
- special damages NOT NEEDED
Defenses
Consent - VALID defense to privacy torts
Truth—NOT VALID defense to privacy torts, as opposed to defamation
BUSINESS TORTS > Intentional Interference with Business Relations
1) Intentional Interference with a Contract
2) Interference with a Prospective Economic Advantage
3) Misappropriation of Trade Secrets
1) Intentional Interference with a Contract
Elements
- A valid contract existed between the plaintiff and a third party;
- Defendant knew of the contractual relationship;
- Defendant intentionally interfered with the contract, resulting in a breach; and
- The breach caused damages to the plaintiff
Nature of the contract
- Must be a valid contract
- Cannot be terminable at will
Interference with performance other than inducing breach
Defendant may be liable when he prevents a party from fulfilling its contractual obligations or substantially adds to the burden of performance
Defendant’s conduct must exceed the bounds of fair competition and free expression (flagrant)
2) Interference with a Prospective Economic Advantage
- Defendant intentionally interferes with a prospective business relationship or benefit between the plaintiff and a third party, in the absence of a contract
- The elements are the same as for intentional interference with a contract (without the contract), but the conduct must be wrongful.
vvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvvv
3) Misappropriation of Trade Secrets
- Plaintiff owns information that is not generally known (a valid trade secret);
- Plaintiff has taken reasonable precautions to protect it; and
- Defendant acquires the secret by improper means
