MBE Torts Flashcards
Three Elements—to prove an intentional tort, the plaintiff must prove:
o Act;
o Intent; The actor acts with the purpose of causing the consequence; or
The actor knows that the consequence is substantially certain to follow.
and
o Causation.
Tort of battery
1) Defendant causes a harmful or offensive contact with the person of another (or anything connected to the person e.g. a hat/book); and
2) Acts with the intent to cause that contact or the apprehension of that contact.
What is harmful or offensive contact?
Harmful—causes an injury, pain, or illness
Offensive-A person of ordinary sensibilities would find the contact offensive.
Victim need not be conscious of the touching to be offensive. If the victim is unconscious, and the defendant knows that about the victim, the defendant may still be liable
Contact—the contact can be direct, but need not be
Damages for tort of battery
No proof of actual harm is required; the plaintiff can recover nominal damages.
The plaintiff can also recover damages from physical harm flowing from the battery. (eggshell plaintiff)
Many states allow punitive damages if the defendant acted:
▪ Outrageously; or
▪ With malice.
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.
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.
Tort of assault
defendant engages in an act that:
o Causes reasonable apprehension of an IMMINENT harmful or offensive bodily contact and must be aware of D’s action; and
o The defendant intends to cause apprehension of such contact or to cause such contact itself.
Damages for assault
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
Elements of IIED
Intent- defendant intentionally or recklessly
Act- engages in extreme and outrageous conduct that
Causation- causes the plaintiff severe emotional distress (must be cause in fact)
What does extreme and outrageous mean?
Conduct that exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society.
Courts are more likely to find conduct or language to be extreme and outrageous if:
▪ The defendant is in a position of authority or influence over the plaintiff; or
▪ The plaintiff is a member of a group that has a heightened sensitivity (such as young children or the elderly).
Public figures and public officials cannot recover for IIED unless
they can show that the words contain a false statement of fact that was made with “actual malice.”
▪ Actual malice—with knowledge that the statement was false or with reckless disregard of its potential falsity.
o The Supreme Court has suggested that even private plaintiffs cannot recover if the conduct at issue is speech on a matter of public concern
If the defendant directed extreme and outrageous conduct toward one party and ended up causing severe emotional distress to another party, the doctrine of transferred intent may make him liable for IIED, but only in certain circumstances:
- Immediate family member
2.Bystander
3.Different intentional tort: If the defendant commits a different intentional tort toward one victim, thereby causing severe emotional distress to another, the same rules apply.
A family member of the victim can recover for IIED if:
An immediate family member of the victim who is -
-present at the time of the conduct and
-perceives the conduct
may recover for IIED regardless of whether that family member suffers bodily injury as a result of the distress.
A bystander can recover for IIED if:
Can recover for IIED if:
-present at the time of the conduct,
-perceives the conduct, and
-suffers distress that results in bodily injury (i.e., physical manifestation of the distress).
Damages for IIED
plaintiff must prove severe emotional distress beyond what a reasonable person should endure.
Physical injury is not required (except in the case of a bystander, discussed above).
Nominal, subsequent physical injuries (eggshell), punitive sometimes
False imprisonment elements
o Defendant intends to confine or restrain another within fixed boundaries;
o The actions directly or indirectly result in confinement; and
o Plaintiff is conscious of the confinement or harmed by it
A court may find false imprisonment when the defendant has refused to perform a ____ to help a person escape
duty
Shopkeeper’s privilege: false imprisonment
—a shopkeeper can, for a reasonable time and in a reasonable manner, detain a suspected shoplifter.
Intent for false imprisonment?
▪ With the purpose of confining the plaintiff; or
▪knowing that the plaintiff’s confinement is substantially certain to result.
NEGLIGENCE IS NOT ENOUGH
Damages for false imprisonment
plaintiff can recover nominal damages; actual damages are also compensable.
Defenses to intentional torts
Consent (express or implied)
Lack of capacity to consent
Self defense (use of reasonable force that is proportionate)
In defense of others
Defense of property (reasonable/non-deadly)
Parental Discipline
Privilege of arrest
Are you allowed to use force to regain possession of land?
▪ Common law—reasonable force permitted
▪ Modern rule—use of force is no longer permitted; only legal process
Are you allowed to use force to regain possession of land?
▪ Common law—reasonable force permitted
▪ Modern rule—use of force is no longer permitted; only legal process
trespass to chattels
an intentional interference with the plaintiff’s right to possess personal property either by:
dispossessing the plaintiff of the chattel or
damaging the chattel
Damages for trespass to chattels
o May recover actual damages, damages resulting from the loss of use, nominal damages, or the cost of repair
o In cases involving use or intermeddling, plaintiff may only recover actual damages.
Tort of conversion to chattels
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.
Conversion damages
plaintiff can recover the chattel’s full value at the time of conversion
Factors to consider when determine whether it is a trespass to chattel or conversion
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
Trespass to land
defendant intentionally causes a physical invasion of someone’s land
Defendant need only have the intent to enter the land or cause the physical invasion
Necessity as a Defense to Trespass
In general—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
Private: must pay actual damages caused
Elements of private nuisance
an activity that substantially and unreasonable interferes with another’s use and enjoyment of land.
Elements of negligence
- Duty—an obligation toward another party
- Breach—the failure to meet that obligation
- Causation—cause in fact (actual cause) and proximate cause (legal cause)
- Damages—the loss suffered
How to determine if there is a duty:
Majority view—Cardozo approach (see Palsgraff)
● A duty is owed to a plaintiff only if the plaintiff is a member of the class of persons who might be foreseeably harmed by the conduct.
▪ Minority view (the Restatement view)—Andrews approach
● Anytime conduct could harm someone, there is a duty to everyone; whether this particular plaintiff was foreseeable is a proximate cause issue
In general, there is no affirmative duty to help others, but there are exceptions:
Assumption of duty—Voluntary Undertaking: a person who voluntarily aids or rescues another has a duty of reasonable care in the performance of that aid or rescue.
Placing another in danger
By authority—a person with the ability and actual authority to control another has a duty to exercise reasonable control.
By relationship—defendant has a special relationship with the plaintiff (e.g. common carrier (bus) and passenger)
What is the next thing you should analyze after establishing there is a duty?
the standard of care owed
What is the standard of care for:
General:
Mental and emotional characteristics:
Physical characteristics:
Intoxication:
Children:
G- Reasonably prudent person under the circumstances—generally an objective standard
Mental and emotional characteristics
Objective standard—defendant is presumed to have average mental abilities and knowledge
Physical characteristics
Modified standard—particular physical characteristics are taken into account; defendant is compared with a reasonably prudent person with like characteristics
Intoxication
Objective standard—held to the same standard as sober people unless the intoxication was involuntary.
Children
o Modified standard—reasonable child of similar age, intelligence, and experience
o Adult activities—Children engaged in high-risk adult activities (e.g., driving a car) are held to the objective standard for adults.
Standard of care for specific situations
Common Carriers and Innkeepers:
Automobile Drivers:
Emergency Situations:
Common Carriers and Innkeepers
o Traditional rule: Utmost care—highest duty of care consistent with the practical operation of the business
o Many courts today: liable only for ordinary negligence (not a higher standard)
Guests and friends in a car—drivers were traditionally liable only for grossly negligent, wanton, or willful misconduct (often under “guest statutes”).
o Most jurisdictions apply a general duty of reasonably standard to the driver of a car.
Emergency Situations—standard of care is that of a reasonable person under the same circumstances.
Standard of care for possessors of land
(2 approaches)
Traditional tripartite structure—one-half of jurisdictions continue to follow this approach The standard of care depends on the status of the entrant as a trespasser (lowest standard of care), a licensee (intermediate standard of care), or an invitee (highest
standard of care).
Modern (California) way—one-half of jurisdictions follow this approach
▪ Reasonable standard of care under the circumstances, with the status of the entrant as one of the relevant circumstances
Standard of care for land possessors to trespassers (both discovered/anticipated and undiscovered)
Duty: refrain from willful, wanton, intentional, or reckless misconduct
▪ Undiscovered trespassers—no duty owed
▪ Discovered or anticipated trespassers—must warn or protect them from hidden dangers
Elements of attractive nuisance doctrine
a) An artificial condition exists in a place where the owner knows or has reason to know that children are likely to trespass;
b) The land possessor knows or has reason to know that the artificial condition poses an unreasonable risk of death or serious bodily harm;
c) The children, because of their age, do not discover or cannot appreciate the danger;
d) The utility of maintaining the condition is slight compared to the risk of injury; and
e) The land possessor fails to exercise reasonable care
Standard of care for land possessors to licensees
Traditional rule: Land possessor has a duty to either make the property reasonably safe or warn licensees of concealed dangers.
▪ No duty to inspect for dangers
▪ Must exercise reasonable care in conducting activities on the land
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
California Way (Minority and Third Restatement approach)
land possessor duty
o Minority- Some states—reasonable standard of care under all the circumstances for all entrants
▪ The fact that the land entrant is trespassing is one fact that the jury may consider in deciding whether the land possessor has exercised reasonable care
o The Third Restatement § 52—reasonable care under the circumstances, except “flagrant trespassers”
▪ The only duty to flagrant trespassers (e.g. a burglar) is to not act in an intentional, willful, or wanton manner to cause physical harm.
Duties of Landlord in LL-tenant relationship
o Landlord must:
▪ Maintain safe common areas;
▪ Warn of hidden dangers (especially for premises that are leased for public use); and
▪ Repair hazardous conditions
Note. As an occupier of land, the tenant continues to be liable for injuries arising from conditions within the tenant’s control.
What is a breach of duty
A violation of the relevant standard of care
Traditional approach to analyzing a breach of duty
Reasonable person standard. Focuses on a common-sense approach of
what the reasonably prudent person would do under the circumstances.
Breach of duty: specific rules
Custom:
Generally:
Professionals:
Physicians: (traditional and modern)
Generally: evidence of custom admissible, but not dispositive
Professionals—lawyers, doctors, accountants, electricians
▪ Custom is admissible and dispositive
Physicians
▪ Traditional rule—physician in the “same or similar” locality
▪ Modern trend—national standard
Physicians, breach of duty, informed consent rules
Patients must give informed consent to procedures:
Doctors must explain the risks of medical procedures.
● Doctors are not required to inform the patient if:
o The risks are commonly known;
o The patient is unconscious;
o The patient waives/refuses the information;
o The patient is incompetent; or
o The patient would be harmed by disclosure (e.g., it would cause a heart attack).
Breach of duty: statutes
when a law or statute establishes a particular standard of care, violation of the law constitutes a breach; unexcused statutory violations constitute negligence per se.
Elements of Negligence per se
1) A criminal law or regulatory statute imposes a particular duty for the protection or benefit of others;
2) Defendant violated the statute;
3) Plaintiff must be in the class of people intended to be protected by the statute;
4) The accident must be the type of harm that the statute was intended to protect against; and
5) The harm was caused by a violation of the statute
Defesnes to negligence per se
Excuse:
▪ Defendant may show that complying with the statute would be even more dangerous than violating the statute
▪ Compliance was impossible or an emergency justified violation of the statute
▪ Incapacity (physical disability), exercised reasonable care in trying to comply, vagueness
Elements of res ipsa loquitur
1) The accident was of a kind that does not ordinarily occur in the absence of negligence;
2) It was caused by an agent or instrumentality within the exclusive control of of the defendant; and
3) It was not due to any action on the part of the plaintiff.
Procedural effects of res ipsa
Allows the case to go to the jury
Avoids a directed verdict in favor of the defendant (allows the plaintiff to make a prima facie case of negligence without direct evidence of negligence)
Jury can infer negligence, but need not
Negligence: causation has two elements
proximate cause (legal cause)
Cause in fact (actual cause)
Cause in fact test
Test if there are multiple causes:
“But-for” test—plaintiff must show that the injury would not have occurred “but for” the
defendant’s negligence
“Substantial factor” test: The test is whether the defendant’s tortious conduct was a “substantial factor” in causing the harm.
If Plaintiff’s harm was caused by only one of a few defendants (usually two) and each was negligent, and it cannot be determined which one caused the harm then:
Courts will shift the burden of proof to the defendants—will impose joint and several liability on both unless one can show he did not cause the harm
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
If plaintiff’s harm was caused by two or more tortfeasors acting together collectively then:
then all defendants will be jointly and severally liable.
Loss of chance doctrine:
if a physician negligently reduces the plaintiff’s chance of survival, then that plaintiff can recover for the lost chance of recovery.
Plaintiff cannot recover the entire amount of damages; but can recover the portion that represents their lost chance of survival
Scope of liability for proximate cause:
Person is liable for the risks that made her conduct negligent. The issue is whether the injury that occurred was within the scope of the defendant’s breach.
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Majority rule for proximate cause
no liability for an unforeseeable type of harm
Intervening vs. Superseding causes
Courts used to distinguish between “intervening” causes, which do not break the chain of causation, and “superseding” causes, which do. Some courts still make this distinction.
Third-party criminal acts may or may not break the chain of causation.
Negligence: damages
compensatory damages: purpose is to make the plaintiff whole again
Negligence: Sometimes a plaintiff who suffers a physical injury can also recover for ________
emotional
damages (i.e., “parasitic damages”).
Negligence: Sometimes a plaintiff who suffers a physical injury can also recover for ________
emotional
damages (i.e., “parasitic damages”).
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Mitigation of damages: negligence
o Plaintiff must take steps to mitigate damages
o Can be considered a duty, but it’s more of a limitation on recovery
Categories of compensatory damages in a negligence action for personal injury
Medical expenses, both past
and future
Lost income and reduced earning capacity, past and future
Pain and suffering, both past and future
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Categories of compensatory damages in a negligence action for property damage
a. General rule—plaintiff may recover the difference in the market value
of the property before and after the injury
b. Cost of repair or replacement value often allowed as an alternative measure of damages
Collateral source rule
Benefits or payments to the plaintiff from outside sources are not credited against the liability of any tortfeasor.
Evidence of such payments is not admissible at trial.
However: Most states have passed statutes that eliminate or substantially modify the collateral source rule to avoid double recovery. (not VA)
Punitive damages in negligence actions
● Purpose is to punish and deter future conduct
● May be available if the defendant acted willfully, wantonly, recklessly, or with malice, or if an inherently malicious tort is involved
● Availability may be limited by statute
The U.S. Supreme Court has held that as a matter of due process punitive damages must be within a single-digit ratio of any compensatory damages.
Recovering for NIED without showing physical harm
- Zone of danger
- Bystander recovery (closely related)
- Special Relationship (negligent diagnosis/negligent handling of loved one’s corpse)
At common law, plaintiffs could only recover for NIED if ______
they suffered a physical injury
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Elements of NIED Zone of danger
o The plaintiff was within the “zone of danger” of the threatened physical impact; and
o The threat of physical impact caused emotional distress.
Elements of NIED bystander recovery
1) Is closely related to the person injured by the defendant;
2) Was present at the scene of the injury; and
3) Personally observed the injury.
Do most jurisdictions require some physical manifestation of distress for NIED?
yes
A plaintiff who suffers only ______ without any related personal injury or property damage cannot recover in negligence.
economic loss
e.g. Someone negligently damages a road. A business owner loses business due to the damage to the road. The owner cannot recover for that economic loss because the business owner has not suffered any personal injury or property damage.
Can you recover economic damages if you can also prove injury or property damage in a negligence action?
Yes
Wrongful death action in negligence
Brought by:
Recovering for:
o Brought by the decedent’s spouse or representative to recover losses suffered by the spouse or representative as a result of the decedent’s death
o Can include loss of economic support and loss of consortium
Survival action in negligence:
o Brought by a representative of the decedent’s estate on behalf of the decedent for claims that the decedent would have had at the time of the decedent’s death
o Claims include damages resulting from personal injury or property damage
Recovery for Loss Arising from Injury to Family Members
● Family members (typically a spouse) can claim loss of consortium or companionship.
Negligence: Respondeat Superior
The employer is held vicariously liable for the negligence of an employee, if it occurred within the scope of the employment.
Distinction: Employer’s own negligence v. vicarious liability for an employee’s conduct
▪ Direct negligence—the employer is liable for the employer’s own negligence.
▪ Vicarious liability—the employer is liable for the employee’s actions.
Are employers generally liable for the intentional torts of its employees?
No; but
when the employee’s conduct is within the scope of employment (e.g., force is inherent in the employee’s work i.e. a bouncer)
Determining scope of employment is a vicarious liability action:
Frolic:
Detour:
▪ Detour (minor deviation from the scope of employment)—the employer is vicariously liable.
▪ Frolic (major deviation from the scope of employment)—the employer is not liable.
Are employers generally liable for the torts committed by independent contractors?
No
Difference b//w independent contractor and employee?
If the employer retains a right of control over the way that employee (or nominal independent contractor) does the work, then the courts will treat that person as an employee.
Vicarious liability for an independent contractor’s torts: non-delegable duties
● Inherently dangerous activities;
● Duties to the public or specific plaintiffs for certain types of work, such as
construction work by a roadway;
● Shopkeepers have a duty to keep the premises safe for the public
Apparent agency doctrine for vicarious liability of independent contractors
an independent contractor (IC)
will be treated as an employee if:
● The injured person accepted the IC’s services based on a reasonable belief that the IC was an employee, based on manifestations from the putative employer; and
● The IC’s negligence is a factual cause of harm to one who receives the services, and
such harm is within the scope of liability.
Ex: You accept medical services from a doctor wearing a name tag with the hospital logo. If the doctor commits malpractice, you may be able use apparent agency doctrine to establish the hospital’s vicarious liability, even if the hospital says the doctor was an IC, if you can show you reasonably relied on the hospital’s representation, as manifested in the name tag.
Vicarious liability of business partners
can be liable for the torts of other business partners committed within the scope of the business’s purpose.
Vicarious liability: automobile owners
a. Negligent entrustment—an owner can be directly liable for negligently entrusting a vehicle (or any other dangerous object) to someone who is not in the position to care for it.
b. Family-purpose doctrine—the owner of an automobile may be vicariously liable for the tortious acts of any family member driving the car with permission.
c. Owner liability statutes—the owner of an automobile may be vicariously liable for the
tortious acts of anyone driving the car with permission.
Vicarious liability for parents
parents generally are not vicariously liable for their minor children’s torts.
but
parents can be liable for their own negligence with respect to their children’s conduct (e.g., negligent supervision)
Dram shop liability
o Holds bar owners, bartenders, and even social hosts liable for injuries caused when people drink too much alcohol and injure third parties
o Liability is based on statute and varies by state, especially liability for social hosts.
o Direct liability for the server’s own negligence in serving the person (not vicarious)
NOT A THING IN VA
Federal tort claims act
Expressly waives immunity and allows the federal government to be sued for certain kinds of torts
Exceptions to federal tort claims act
(Gov. maintains immunity)
certain enumerated torts, discretionary functions, and traditional
governmental activities.
Federal tort claims act:
Do government officials have immunity for
Discretionary functions?
Ministerial Functions?
discretionary - yes
ministerial - no
What is a ministerial act?
A ministerial act is an act performed in a prescribed manner and in obedience to a legal authority, without regard to one’s own judgment or discretion.
What is the Westfall Act?
precludes any personal liability on the part of a federal employee under
state tort law.
What is joint and several liability?
● Two or more defendants are each liable for a single and indivisible harm to the plaintiff; each defendant is subject to liability to the plaintiff for the entire harm.
Plaintiff can recover all of his damages from any negligent party.
Defenses to negligence
Contributory Negligence
- Last Clear Chance Doctrine (under contributory negligence jx mostly)
Comparative Fault
Imputed Contributory negligence
Assumption of risk
What is contributory negligence
If the plaintiff was negligent in some way, that negligence completely precluded the plaintiff’s recovery.
Old common law rule; still applicable in some states aka in VA
What is the last clear chance doctrine?
Allows a negligent plaintiff to recover upon showing that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so.
ex. Daisy is speeding and sees Myrtle negligently walk into the street. She should not feel free to run her over on the theory that Myrtle’s contributory negligence will relieve her of liability. If Daisy has the last clear chance to avoid the injury, then contributory negligence will not be a bar.
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
What is comparative fault defense in negligence actions
Plaintiff’s negligence does not completely bar recovery; it limits the plaintiff’s ability to recover
Most jurisdictions have adopted a comparative fault approach.
There are two kinds of comparative fault
Pure comparative negligence
Modified comparative negligence
Rule for pure comparative negligence
plaintiff’s recovery is reduced by plaintiff’s percentage of fault
ex. If the jury finds that the Jordan (the plaintiff) is 90% at fault, then she can recover only 10% of her damages.
Rule for modified comparative negligence
If the plaintiff is MORE at fault than the defendant, then the plaintiff’s recovery is
barred.
Some jurisdictions: If the plaintiff and defendant are EQUALLY at fault, then the plaintiff’s recovery is barred.
Note. If there is more than one defendant, the plaintiff’s negligence is compared with the total negligence of all defendants combined.
Is comparative fault a defense to intentional torts?
NO
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Do most comparative negligence jx use the last clear chance doctrine?
NO
What is imputed contributory negligence?
One party’s negligence is imputed to another party
Example 77: An employee is negligently driving during the scope of employment and is in a car accident with another negligent driver. The negligence of the employee might be imputed to the employer in the employer’s suit against the third party who negligently damaged the employer’s vehicle.
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Imputed contributory negligence is generally disfavored, and it does not apply to:
o A child plaintiff whose parent’s negligence was a contributing cause of her harm, in a suit against a third party.
o A married plaintiff whose spouse was contributorily negligent in causing the harm, in a suit against a third party.
What is an assumption of the risk?
● Applies when a party knowingly and willingly embraces a risk for some purpose of his own
● Analogous to the defense of consent in intentional torts
● Can be express or implied
Express assumption of the risk elements
1) Is the waiver clear?
2) Is the waiver enforceable?
typically in writing
Express assumption of risk:
Courts might not enforce exculpatory provisions in certain situations:
- waiver disclaims for reckless and wanton misconduct
- gross disparity in bargaining power
- The party seeking to enforce the provision offers services of great importance to the public (e.g., medical services);
- The provision is subject to contract defenses (fraud/duress)
- against public policy
Implied assumption of risk:
Participants in and spectators of athletic events
Courts often hold that a participant or spectator cannot recover because the party knew of the risks and chose to accept those risks.
Implied assumption of risk:
Unreasonably proceeding in the face of known, specific risk:
Contributory negligence jurisdictions:, and a minority of comparative-fault jurisdictions:
Most comparative fault jurisdictions:
Occurs when the plaintiff voluntarily encounters a known, specific risk
CN: this form of assumption of the risk remains a total bar to recovery.
CF: this form of assumption of the risk has been merged into the comparative-fault analysis and merely reduces recovery.
● The issue is whether the plaintiff reasonably or unreasonably encountered the risk
Strict liability for:
- abnormally dangerous activities
- Wild animals
- Defective products
Basic rule for abnormally dangerous activities
a defendant engaged in an abnormally dangerous activity will be held strictly liable for personal injuries and property damage caused by the activity, regardless of precautions to prevent the harm.
“Abnormally Dangerous” Activity factors:
o Whether it creates a foreseeable and highly significant risk of harm even when the actor takes due care;
o The severity of the harm resulting from the activity;
o The appropriateness of the location for the activity;
o Whether it has great value to the community
scope of liability for abnormally dangerous activities
defendant is liable for the harm that flows from the risk that made the activity abnormally dangerous
What are Wild animals
animals that, as a species or class, are not customarily kept in the service of humankind
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Scope of liability for wild animals
Scope of liability for wild animals
owners are strictly liable for the harm arising from the animal’s dangerous propensities.
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Liability to land entrants wild animales
licensees/invitees:
trespasser:
Strictly liable
Not strictly liable
Scope of liability for wild animals
owners are strictly liable for the harm arising from the animal’s dangerous propensities.
Note. in some jurisdictions: injuries caused by a vicious watchdog= strictly liable
Domestic animals: scope of liability
if the owner knows or has reason to know that the particular
animal has dangerous propensities, the owner is strictly liable.
Many states have dog bite statutes which ________
hold dog owners strictly liable for injuries caused by dogs
Scope of liability for trespassing animals:
Exceptions:
the owner of any animal is strictly liable for reasonably foreseeable damage caused by his animal while (that animal is) trespassing on another’s land.
▪ Household pets, unless the owner knows or has reason to know that the pet is intruding on another’s property in a harmful way
▪ Animals on public roads—a negligence standard applies
Does contributory negligence in a strict liability case bar recovery?
NO
Does comparative negligence bar recovery in strict liability cases?
No, but could diminish recovery in some jx
Defense to strict liability that is a complete bar on recovery
Assumption of the risk
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
a plaintiff can bring different types of claims for products liability:
● Negligence—plaintiff must prove duty, breach, causation, and damages
● Strict Liability for Defective Products
● Breach of Warranty Claim
There are three types of product defects:
manufacturing defects, design defects, and failure to warn.
Elements of a strict products liability claim:
o The product was defective (in manufacture, design, or failure to warn);
o The defect existed when the product left the defendant’s control; and
o The defect caused the plaintiff’s injury when the product was used in a foreseeable
way.
Manufacturing defect elements
▪ The product deviated from its intended design.
▪ The product does not conform to the manufacturer’s own
specifications.
Design defect two tests
▪ Consumer expectation test—the product is defective in design if it is less safe than the ordinary consumer would expect.
▪ Risk-utility test—the product is defective in design if the risks outweigh its benefits; must show that there is a reasonable alternative design (that would’ve had a better cost/benefit or risk-utility profile).
Failure to warn:
of a foreseeable risk that is not obvious to an ordinary user
What is the learned intermediary rule in failure to warn liability
(Often applies to prescription drugs): Manufacturers of prescription drugs must warn the prescribing physician.
● Exception: drugs marketed directly to consumers
courts may allow proof of a defect by _________, especially when the defect causes the product to be destroyed.
circumstantial evidence
Who are the plaintiffs in a strict products liability case?
Is there a privity requirement to sue?
o Anyone foreseeably injured by a defective product, including purchasers, other users, and
bystanders
o No privity requirement—can sue up and down the chain of production or distribution
Who can be a defendant in strict products liability case?
o Anyone who sells the product when it is defective is potentially strictly liable.
o Must be in the chain of distribution and in the business of selling (aka not a casual seller
Damages for strict products liability
Plaintiff can recover for personal injury or property damage
Defenses to strict products liability?
Contributory Negligence:
Comparative fault:
Assumption of the risk:
Product misuse, modification, or alteration:
Substantial change in product:
Compliance with gov. standards:
State of the art defense:
Disclaimers, limitations, and waivers:
CN: courts hesitate to allow the plaintiff’s negligence to completely bar the plaintiff’s recovery against the defendant for a defective product.
CF: the plaintiff’s own negligence will reduce his recovery in a
strict-products-liability action.
AOR: if the risk is one that the plaintiff knew about and voluntarily chose, then the plaintiff will not be allowed to recover.
PM: Generally, the manufacturer (or seller) will be liable as long as the misuse, modification,
or alteration was foreseeable. (viewed as examples of comparative negligence)
SC: can bar recovery
GS: Compliance with safety standards is admissible that the product is not defective, but it is not dispositive evidence.
SOA: ▪ In some jurisdictions, the relevant state of the art at the time of manufacture or warning is evidence that the product is not defective.
▪ In other jurisdictions, compliance with the state of the art is a total bar
D: does not bar
Warranty claims for product liability may be brought:
Is privity required?
● Warranty claims may generally be brought up and down the distribution chain.
● Privity is not required.
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Implied warranties (2) (think contracts)
o Merchantability—the product is suitable for the ordinary purposes for which it is sold.
o Fitness for a particular purpose—the seller knows the particular purpose for which the
product is being sold, and the buyer relies on the seller’s skill or judgment.
Express warranties
an affirmation of fact or a promise by the seller that is part of the basis of the bargain
Defense to warranty claims
disclaimers
Contributory negligence
comparative fault
assumption of risk
product misuse
In a defamation action, a plaintiff must prove that the defendant:
o Made a defamatory statement;
o That is of and concerning the plaintiff;
o The statement was published to a third party who understood its defamatory nature;
and
o Damage to the plaintiff’s reputation results.
What is defamatory language?
Language that diminishes respect, esteem, or good will toward the plaintiff, or a statement that deters others from associating with the plaintiff
Defamatory language must. be _____, in order to be actionable
false
Defamatory statements made about a group: can an individual recover?
a member of the group can bring an action only if the group is so small or the context is such that the matter can reasonably be understood to refer to that member.
What does “published” mean for defamation purposes?
The statement must be communicated to a third party.
Is a person who repeats/disseminates a defamatory statement may be liable for defamation?
yes, may be liable
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Federal statute provides that internet service providers and platforms are not liable for the purposes of defamation.
Are internet service providers and platforms liable for the purposes of defamation?
No
Defamation of a public official/public figure
the plaintiff must prove that the person who made the statement either knew that it was false or acted with reckless disregard for the truth (actual malice standard)
Defamation private individual
matter of public concern:
Not a matter of public concern:
▪ Matter of public concern—plaintiff must prove that the statement is false and that the person who made the statement was reckless/negligent with respect to the falsehood
(should have known the statement was false)
▪ Not a matter of public concern—it is unclear whether constitutional limitations apply; a
state need not require a plaintiff to prove negligence
What is libel?
a written, printed, or recorded statement (including TV/radio broadcasts, e-mail, and electronic communications)
What is slander
a statement that is spoken
Damages for libel
plaintiff may recover general damages (i.e., recovery without proof of measurable harm)
damages for slander
the plaintiff must prove special damages (requires a showing of economic loss)
Slander per se examples
▪ Commission of a serious crime
▪ Unfitness for a trade or profession
▪ Having a loathsome disease
▪ Severe sexual misconduct
Private individual and matter of public concern damages
plaintiff can recover only actual damages
unless she shows actual malice
Private individual but NOT a matter of public concern damages
plaintiff may recover general damages, including presumed damages, without proving actual malice.
Defenses to defamation
Truth
Consent
Privileges
Absolute Privilege for defamation
the speaker is completely immune from liability for defamation; includes statements made:
▪ In the course of judicial proceedings;
▪ In the course of legislative proceedings;
▪ Between spouses; and
▪ In required publications by radio and TV (e.g., statements by a political candidate that a station must carry and may not censor)
Conditional privilege for defamation liability
the statement is made in good faith pursuant to some duty or responsibility; includes statements made:
▪ In the interest of the defendant (e.g., defending your reputation);
▪ In the interest of the recipient of the statement; or
▪ Affecting some important public interest
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Invasion of privacy: 4 causes of action
Intrusion upon seclusion
False Light
Appropriation of the Right to Publicity
Public Disclosure of Private Facts
Public Disclosure of Private Facts
o (1) Defendant publicizes a matter concerning the private life of another; and
o (2) The matter publicized:
▪ (a) Is highly offensive to a reasonable person; and
▪ (b) Is not of legitimate concern to the public.
Appropriation of the Right to Publicity
a property-like cause of action when someone (1) appropriates another’s name or likeness (2) for the defendant’s advantage (3) without consent, and (4) causes injury
False Light
defendant (1) makes public facts about the plaintiff,
(2) that places the plaintiff in a
false light,
(3) which would be highly offensive to a reasonable person
ex. Writing a story about one person and including a mug shot of someone else.
Intrusion upon seclusion
defendant intrudes upon the plaintiff’s private affairs, in a manner
that is objectionable to a reasonable person
Ex. phone tapping, hacking medical records, peeping tom
Damages for torts of invasion of privacy
plaintiff need not prove special damages; emotional or mental distress is sufficient
Elements of intentional misrepresentation (think contracts)
- False representation of material fact/ or active concealment
- Scienter: defendant has to know that the representation is false or acted with reckless disregard for its falsehood
- Intent—defendant must intend to induce the plaintiff to act in reliance on the misrepresentation
- Causation—the misrepresentation must have caused the plaintiff to act or refrain from acting
- Justifiable Reliance—reliance is NOT justifiable if the facts are obviously false or it is clear that
the defendant was stating an opinion. - Damages:Plaintiff must prove actual, economic, pecuniary loss
o Nominal damages are NOT available.
Intentional Interference with a Contract
▪ 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 or substantially adds to the burden of performance; and
▪ The breach caused damages to the plaintiff
Defendant’s conduct must exceed bounds of fair competition and free expression
Misappropriation of trade secrets
o Plaintiff owns information that is not generally known (a valid trade secret); o Plaintiff has taken reasonable precautions to protect it; and
o Defendant acquires the secret by improper means.
Implied warranties (2) (think contracts)
o Merchantability—the product is suitable for the ordinary purposes for which it is sold.
o Fitness for a particular purpose—the seller knows the particular purpose for which the
product is being sold, and the buyer relies on the seller’s skill or judgment.
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Categories of compensatory damages in a negligence action for personal injury
Medical expenses, both past
and future
Lost income and reduced earning capacity, past and future
Pain and suffering, both past and future
Injurious falsehoods:
Trade Libel
Slander of title:
Trade Libel—need not necessarily damage the business’s reputation
o Publication;
o Of a false or derogatory statement;
o With malice;
o Relating to the plaintiff’s title to his business, the quality of his business, or the quality of its
products; and
o Causing special damages as a result of interference with or damage to business
relationships
Slander of Title
o Publication;
o Of a false statement;
o Derogatory to the plaintiff’s title;
o With malice;
o Causing special damages; and
o Diminishes value in the eyes of third parties.
a plaintiff can bring different types of claims for products liability:
● Negligence—plaintiff must prove duty, breach, causation, and damages
● Strict Liability for Defective Products
● Breach of Warranty Claim
Standard of care for invitees
o Land possessor owes a duty of reasonable care—the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and take reasonable steps to protect the invitee from them.
o Non-delegable duty—cannot avoid the duty by assigning care of the property to an
independent contractor
Wrongful Use of the Legal System
malicious prosecution
Abuse of process
Malicious Prosecution
A person intentionally and maliciously institutes or pursues a legal action for an improper purpose without probable cause, and the action is dismissed in favor of the person against whom it was brought.
Abuse of Process
o The defendant sets in motion a legal procedure in the proper form but has abused it to achieve some improper motive.
o Some willful act perpetrated in the use of the process that is not proper in the regular conduct of that proceeding
o The conduct must also cause damages.
