MBE Torts Flashcards
False Imprisonment
(i) D intends to confine P in a limited area with no means of escape
(ii) Ds conduct causes Ps confinement (or D has a duty to release P from confinement and doesn’t do it) and
(iii) P is conscious of the confinement
May a person who negligently puts herself in danger be liable for her rescuer’s injuries?
Yes, generally, there is no affirmative duty to act. However, this rule wouldn’t prevent recovering damages from someone for negligently putting themselves in danger.
If you rescue, even if you had no duty, and you get injured and can you sue the peril creator?
Yes, bc danger invites rescue
Letting people recover for injury, encourages them to help anyway
Negligent Infliction of Emotional Distress
(i) P was within the “zone of danger” of the threatened physical impact caused by D’s negligence that made P fear for his own safety; and
(ii) the threat of physical impact caused emotional distress
However, a bystander P outside the zone of danger can still recover if:
- she is closely related to the person D injured
- was present at the scene of the injury, and
- personally observed (or otherwise perceived) it.
Frolic vs Detour
An employer may be liable for a tort committed by an employee during the employee’s detour (a minor and permissible deviation from the scope of employment)
But not during the employee’s frolic (an unauthorized and substantial deviation).
Civil Battery
Harmful or offensive contact with the person of another
Do you need actual harm for battery?
No, just harmful or offensive contact
Defense:
Deadly force as self-defense
D may use self-defense only if they reasonably believe
(i) P is intentionally inflicting or about to intentionally inflict unprivileged force on D
(ii) D is thereby put in peril of either death, serious bodily harm, or rape by the use or threat of physical force or restraint, and
(iii) D can safely prevent the peril only by the immediate use of deadly force
True or False:
A D using force against an actual or apparent transgressor in self-defense wont be subject the D to intentional tort liability if they unintentionally harm a bystander
True
It would be unintentional harm by acting in self-defense
What are the 3 elements to prove an intentional tort
(1) an act (tortious conduct)
(2) intent (requisite mental state)
(3) causation
intent
(1) purpose of causing consequence; or
(2) knows consequence will result with substantial certainty
Can children and mentally incompetent people be liable for intentional torts?
Yes, if the acted w the requisite intent
battery
intentional, harmful or offensive contact with the person of another without consent
does the victim of a battery have to be conscious of it for it to be offensive?
No; they could be unconscious bc P doesn’t have to be aware of the contact when it occurs
Can a D be liable for battery if the victim was hypersensitive to the offensive contact?
the test is usually whether a person of ordinary sensibilities would find the contact offensive
BUT if the D knows the vic if hypersensitive they can still be liable
For battery, does the contact have to be direct?
No
ex: pulling a chair from under you, putting bucket above door
For battery, what entails contact w person of another?
anything connected to the plaintiff’s person
ex: hat on their head, bike their sitting on, book in you’re hand
For a battery, what does the D had to have intended?
D had to have intended the contact, not the offense
*doesn’t matter if they didn’t meant to be offensive
transferred intent
intent to commit one tort but commits another
intent to commit a tort against one person but instead commits it against another
Does transferred intent apply to battery?
Yes
damages that can be awarded for battery
no actual harm required;
- nominal damages can be awarded or
- comp damages if there was harm
damages for battery on an eggshell plaintiff
D will be liable for all harm that comes from the battery, even if worse than expected
Are punitive damages recoverable for a battery?
If the D acted
- outrageously; or
- with malice
consent defense for battery
no battery if there was express or implied consent
ex: boxing match
Assault
intentionally putting someone in reasonable apprehension of imminent harmful or offensive bodily contact
*no actual harm required
Is bodily contact required for assault?
No;
just an apprehension of imminent harmful or offensive bodily contact
Plaintiff’s apprehension in an assault
- must be reasonable
- Plaintiff must be aware of the D’s action (bc otherwise no apprehension)
*if unconscious, no apprehension
Do threats of future or hypothetical harm constitute assault?
No because it needs to be imminent
Do mere words constitute an assault?
Generally no, BUT IF D 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
ex: “your money or your life” in dark alley
What must D intend to do in an assault
Either:
- Intend an apprehension of imminent harmful or offensive contact;
- The contact itself
Damages that can be awarded for assault
no actual harm required;
- nominal damages can be awarded or
- comp damages if there was harm
- sometimes punitive if appropriate
Intentional Infliction of Emotional Distress (IIED)
D intentionally or recklessly engages in extreme and outrageous conduct that causes plaintiff severe emotional distress
Extreme and Outrageous Conduct
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 D is in a position of authority or influence over the P
> The P is a member of a group that has heightened sensitivity (like young children & the elderly)
What must public figures/officials show in a suit for IIED?
That the words contained a false statement of fact that was made with actual malice
(actual malice: knew the statement was false or reckless disregard of its potential falsity)
Can private plaintiffs recover for IIED if the speech was in the context of public concern?
No
When does transferred intent apply in IIED?
(1) Related bystanders:
An immediate family member of the victim is present at the time of the conduct and contemporaneously perceives it
(2) Defendant’s Purpose:
If D’s purpose in harming someone is to cause severe emotional distress to a 3rd party, then the 3rd party can recover for IIED
Reqs for damages from IIED
P must prove severe emotional distress beyond what a reasonable person should endure
> If a P experiences an unreasonable level of emotional distress, a D would only be liable if they knew of P’s hypersensitivity
Physical injury not required
False Imprisonment
(1) D intends to confine or restrain another within a bounded area
(2) D’s conduct directly or indirectly causes Ps confinement; and
(3) P was conscious of the confinement
Can a car be considered a bounded area for false imprisonement?
Yes, the bounded area doesn’t have be stationery
If a D refuses to perform a duty to help a victim escape, can this be false imprisonment?
Yes, it may be false imprisonment when the defendant refused to perform a duty to help the
victim escape
Shopkeeper’s Privilege exception under false imprisonment
A D isn’t liable for false impri. under merchant’s privilege when:
> D is a merchant/employee/agent
D reasonably believes P has attempted/wrongfully taken merchandise
Detainment occurs on, or in the immediate vicinity of the merchant’s premises
detainment is for a reasonable time and reasonable manner to investigate the matter
Under false imprisonment, does the duration of confinement matter?
No, duration of confinement is immaterial to the tort
Will a D be liable for false imprisonment if someone is confined due to their negligence?
No, because false imprisonment an an intentional tort which requires the D to act:
- with purpose of confining
OR
- knowing that confinement of the P will likely result
Does transferred intent apply to false imprisonment?
Yes
What damages can a P recover for false imprisonment?
no actual harm required;
- nominal damages can be awarded or
- comp damages if there was harm
what are the 2 types of consent
- actual consent
- presumed consent
Actual consent
the P by words or actions manifested a wiliness to submit to D’s conduct
*but the D’s conduct can’t exceed the scope of the consent
Consent by mistake
valid defense unless the D - caused the mistake or
- knew of it and took advantage of it
Consent by fraud
Essential matters:
invalid defense if the consent was given by fraud as to an essential matter
Collateral matters:
can be a valid defense if the fraud was relating to collateral (irrelevant) matters
Presumed Consent
the P is silent/non-responsive but their silence and continued participation can reasonably be construed as consent
> Emergencies: fair to assume rescuer has consent
Injuries arising from athletic contests: bc consent is within the scope of the sport
mutual consent to combat
What is required to give consent?
Capacity
A lack of capacity can undermine the validity of consent (ex: minors, incompetency, intoxication)
Defenses to Intentional Torts
(1) Consent
(2) Self-defense
(3) Defense of others
(4) Defense of property
(5) Parental discipline
(6) Privilege of Arrest
Self-defense
the use of reasonable force which is proportionate to defend against an offensive contact or bodily harm
Duty to retreat
Modern majority rule is that you do not need to retreat before using reasonable proportionate force
Initial Aggressor
an initial aggressor isnt permitted to claim self-defense unless the other party responded to non-deadly force with deadly force
Injuries to Bystanders
someone acting in self-defense isn’t liable for injuries to a bystander as long as it was accidental and the actor wasn’t negligent toward the bystander
Defense of Others
You may use reasonable force in defense of others, if that person themselves would’ve been entitled to use self-defense
Defense of Property
reasonable force may be used if the person reasonably believes it’s necessary to prevent tortious harm to the property
Can deadly force be used in defense of property
No; someone can never use deadly mechanical devices to defend property (e.g., a spring gun).
humans–> proportionate
property–> never
Defense of Property:
Recapture of Chattels (personal property)
Wrongfully taken:
Reasonable force can be used to reclaim personal property but ONLY IF first you ask for it back, unless doing so would be futile
Lawfully taken (like bailment):
only peaceful means can be used
Defense of Property:
Force to Regain Possession of Land
use of force not permitted; you can only try to regain: through legal process
Parental Discipline
Parents may use reasonable force as necessary to discipline children
Privilege of Arrest:
By a Private Citizen
Felonies:
Permitted to use reasonable force to make a felony arrest IF
(1) The felony was actually committed; and
(2) The arresting party has reasonable grounds to suspect that the person
being arrested committed the felony
Misdemeanor:
Arrest only allowed if there’s a “breach of the peace”
Privilege of Arrest:
By Police for felonies
Felonies:
> Must reasonably believe a felony has been committed + that the person arrested
committed it
> But an officer wont be subject to tort liability if they’re mistaken about whether a felony was committed
Misdemeanors:
> Arrest only allowed if the misdemeanor was committed in the officer’s presence
Trespass to Chattels
(personal property)
An intentional interference with P’s right to possess personal property by:
> Dispossessing P of the chattel
Damaging the chattel; or
Using or intermeddling with the chattel
Trespass to Chattels requires an intent as to what?
Only the intent to do the interfering act is necessary; not the intend to interfere
Under Trespass to Chattels, is mistake as to the legality of the action a defense?
No; mistake as to the legality of the action is not a defense for Trespass to Chattels
What damages can a P recover for Trespass to Chattels?
Dispossession or damage:
- actual damages
- damages for loss of use
- nominal damages
- cost of repair
Intermeddling:
- only actual damages
Conversion
Intentionally committing an act:
> Depriving P of possession of their chattel; or
> Interfering with P’s chattel in a manner so serious as to deprive P entirely of its use
Intent required for Conversion
Intent to commit the act that interferes
(not necessarily to commit conversion itself)
*Mistake of law or fact isn’t a defense
ex: thought u were cutting down ur own tree, but it was the neighbors. too bad ur liable
What damages can a P recover for Conversion
P can recover the chattel’s full value at the time of conversion
Trespass to Chattels
vs.
Conversion
Conversion is more serious, so the more extreme the interference, the more likely a court will find P was fully deprived.
Factors courts consider:
> The duration/extent of the interference;
> D’s intent to assert a right inconsistent with the rightful possessor;
> D’s good faith;
> Expense or inconvenience to the P; and
> Extent of the harm to chattel
Trespass to Land
D intentionally causes a physical invasion of someone’s land
Intent required for Trespass to Land
D only needed to have intended to enter the land or cause the physical invasion (causing objects to invade the land)
intent to commit a wrongful trespass not required
Who can bring an action for Trespass to Land?
Anyone in possession of the land
- includes tenants, not just owners
What damages can a P recover for Trespass to Land?
- no proof of actual damages is required (bc doesn’t cost D to trespass)
- nominal damages can be awarded
Necessity as a Defense to Trespass
Available to someone who enters onto another’s land or interferes with their personal property to prevent an injury or other severe harm
Could be
> private necessity
> public necessity
Private necessity
D not liable for:
nominal damages
D liable for:
actual damages they caused
*The owner may not use force to exclude the person
Public necessity
> Private property is intruded or destroyed when necessary to protect a large number of people from a public calamity
> D NOT liable for damages to the property
What are the 2 types of nuisance?
> private
public
Private Nuisance
An activity that substantially and unreasonably interferes with another’s use and enjoyment of land
ex: loud noises/foul odors
What constitutes
an unreasonable interference for a nuisance?
> Must be annoying to an ordinary, reasonable person
Someone hypersensitive may not have a cause of action for nuisance.
Someone who isn’t actually bothered can still have a cause of action for nuisance if it’d bother an ordinary, reasonable person
Courts will also balance the interference with the utility of the nuisance
What is not considered a nuisance?
> the blocking of sunlight
obstruction of views
Exception: spite fence/wall
> If a person puts up a fence or wall with no purpose except to block
a neighbor’s view or sunlight, then courts will sometimes find that to be a nuisance
Defenses to private nuisance
> Compliance with state or local administrative regulations
(not a complete defense, but evidence of reasonableness)
> “Coming to the nuisance”
Courts are hesitant to find a nuisance if you moved somewhere knowing about that conduct (not a complete defense, just a factor)
Public Nuisance
An unreasonable interference with a right common to the public as a whole
Who can bring claims for Public Nuisance?
Public official—
can bring an action on behalf of the public to abate the nuisance
Private individual—generally can’t bring a public nuisance claim unless the P suffered special harm that is different from the general public
Elements required for a negligence claim
(1) Duty
A legal obligation toward another party
(2) Breach
The failure to meet that obligation
(3) Causation
actual cause & proximate cause
(4) Damages
the loss suffered
Duty
A legal obligation to act as a reasonably prudent person to foreseeable P’s in the zone of danger
*most common standard of care ^ but there are others
Is there a duty to act affirmatively?
No, even if the failure to act appears to be unreasonable.
*there are some exceptions
Does foreseeability of harm alone create a duty?
No
Is there a duty to unforeseeable plaintiffs?
No
Plaintiff Rescuer
A person who comes to the aid of another is a foreseeable victim of the original negligent conduct.
Crime Victims
Considered foreseeable plaintiffs in certain circumstances
4 exceptions where there IS an affirmative duty to act
(1) Assumption of duty
(2) Placing another in danger
(3) By authority
(4) By relationship
Assumption of duty
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
If you put someone in danger you have an affirmative duty to act
By authority
A person with the ability and actual authority to control another has a duty to exercise reasonable control
ex: parent, warden, etc
By relationship
D has a special relationship with the plaintiff
ex: Common carrier-passenger; innkeeper-guest
Are Ds with specific mental or emotional conditions subject to the
reasonably prudent person standard?
Yes, the reasonably prudent person standard is an objective standard
Are Ds with particular physical characteristics subject to the same reasonably prudent person standard?
No, they have a modified standard which is to act as a reasonably prudent person with similar characteristics would
ex: blind D compared a reasonably prudent person who is blind.
Are Ds who were intoxicated held to the same reasonably prudent person standard?
Yes, held to the same standard as sober people unless the intoxication was involuntary
Are Ds who are children held to the same reasonably prudent person standard?
No, modified standard which is to act like a reasonable child of similar age, intelligence, and experience
UNLESS: the child is engaged in an adult activity, then they’re held to the reasonably prudent person standard like adults
Standard of care:
Common Carriers and Innkeepers
Majority is:
> common carriers owe the utmost care
> innkeepers owe reasonable care
Standard of care:
Automobile Drivers
Reasonable care to people in the car and around
If the bailee receives a benefit, then he has a higher duty of care; even slight negligence
can result in liability
Bailors and Bailees
(Bailment—a bailee temporarily takes possession of the bailor’s property)
- Bailor must warn a gratuitous bailee of known dangerous conditions
- If the bailor receives the sole benefit, then the bailee has a lesser duty.
- If the bailee receives a benefit, then he has a higher duty of care; even slight negligence
can result in liability
Standard of care:
Emergency Situations
standard of care is that of a reasonable person under the same circumstances
Landowner standard of care:
Invitees
Public invitee:
invited to enter land bc its being held open to the public (ex: state fair)
Business visitor:
entering land for purposes connected to business dealings with the landowner
> Duty of reasonable care:
- inspect for unknown dangers, make safe or warn, & prevent harm from active operations
*Non-delegable duty—cannot avoid this duty by assigning care of the property to an independent contractor
Landowner standard of care:
Licensees
A licensee enters the land with express or implied permission (ex: social guests)
> Landowner has a duty to either
(i) make the property reasonably safe; or
(ii) warn licensees of hidden dangers (latent)
> No duty to inspect for dangers
Must exercise reasonable care in conducting activities on the land
Duty of care:
unknown trespassers
Trespasser: someone on the land without consent or privilege
> There is no duty to unknown trespassers
> Exception:
refrain from willful, wanton, intentional, or reckless misconduct
(ex: use of spring gun)
Duty of care:
known trespassers
landowner has a duty to warn or protect of known artificial dangers
“Attractive nuisance” doctrine
landowner can be liable for injuries to children trespassing on the land if:
1) An artificial condition exists in a place where the owner knows or has reason to know that children are likely to trespass;
2) The landowner knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily harm;
3) The children, bc of their age, don’t discover or can’t appreciate the danger;
4) The utility of maintaining the condition is slight compared to the risk of injury; and
5) The owner fails to exercise reasonable care
Duty of care: Landlord/tenant
Landlord must:
> maintain safe common areas
> warn of hidden dangers (especially for premises that are leased for public use); and
> repair hazardous conditions
*tenant will still be liable for injuries arising from conditions within their control
Duty of care:
Off-Premises Victim
Natural conditions:
Generally, landowner isn’t liable for injuries resulting from natural conditions
(ex: your tree falls on their property)
Artificial conditions:
must prevent unreasonable risk of harm to persons not on the premises
(ex: your flag pole)
Breach of Duty
A violation of the standard of care
2 Approaches to figuring out breach
(1) Traditional Approach:
Reasonable person standard. Focuses on a common-sense approach of what the reasonably prudent person would do under the circumstances.
(2) Hand Formula (B < PL):
Burden v. Probability of harm x severity of Loss
Custom
Custom = majority practice within an industry or profession
> Generally, evidence of custom is admissible, but not dispositive
Custom:
Professionals
Custom for professionals is admissible and dispositive!!
> Compliance w custom: no breach
Deviation from custom:
breach
*Professionals = lawyers, doctors, accountants, electricians
Custom:
Physicians
> Traditional rule:
duty to act like other physicians in the “same or similar” locality
> Modern trend:
duty to act according to the national standard
> Informed consent:
- patients must give informed consent
- Doctors must explain the risks of medical procedures UNLESS:
The risks are commonly known;
The patient is unconscious;
The patient waives/refuses the information;
The patient is incompetent; or
The patient would be harmed by disclosure (ex: it’d cause a heart attack)
Breach of Statutes
When a law or statute establishes a particular standard of care, violation of that law constitutes a breach; aka “negligence per se”
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) P 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
What can be automatically established if neg per se is found
duty, breach, causation
Neg Per Se:
violation by plaintiff
Can establish comparative or contributory negligence
Does compliance w statute constitute reasonable care?
No, you could be following the statute and still be negligent
(ex: going the speed limit but still driving negligently)
Defense to Neg Per Se:
Excuse
> D may show that complying with the statute would’ve 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
Res Ipsa Loquitor
Circumstantial evidence of negligence can be sufficient to infer negligence
> Elements:
(1) The accident was of a kind that does not ordinarily occur without negligence;
(2) It was caused by an agent or instrumentality within the exclusive control of the D; and
(3) It wasn’t due to any action on the part of the P
(ex: barrel rolls out of building and injures a passerby. A jury
could reasonably conclude some type of negligence was the likely cause of that injury)
TIPS:
> Look for Motion for Directed Verdict or Summary Judgement bc it can go straight to the jury… is there any evidence from the facts of negligence?
> Answer choice includes language of what a JURY must find, infer, conclude, etc
Res Ipsa Loquitor:
Procedural Effect
> Creates a permissible inference that allows the case to go to the jury so they can decide if there was negligence or not
> Jury may infer negligence, but doesn’t have to
2 components of the Causation element
(1) Cause in fact, or actual cause
(2) Proximate cause, or legal cause
Cause in fact
(actual cause)
“But-For” Test:
P must show that but-for D’s negligence, the injury wouldn’t have occurred
Problematic circumstances with the “but-for” test
> Multiple tortfeasors:
you cant “but-for” any one of their faults
> Multiple possible causes:
you cant “but-for” one
> Loss of chance:
patient misdiagnosed bc of D’s negligence but
can’t show the misdiagnosis was the but-for cause
*If you see any of these, look past the but-for test
“Substantial factor” test
> Used when there’s conceptual problems with causation due to multiple causes
> Test:
Was D’s tortious conduct a “substantial factor” in causing the harm?
Ex: Can be used if 2 separate fires that merged to burn Ps home. P doesn’t know which fire caused it. Can show each fire was a substantial factor in causing the harm. could recover from either
Alternative Causation
P’s harm was caused by 1 of multiple D’s but each was negligent so we can’t determine who’s at fault
(ex3 hunters, 2 shot at same time, now 3rd one is hurt)
> Courts will shift the burden of proof to the defendants—aka will
impose joint and several liability on both unless one can show he did not cause the harm
> Concert of action:
if 2+ tortfeasors were acting together collectively
and that causes P’s harm, then all Ds will be jointly and severally liable
Loss of Chance of Recovery
(Medical Misdiagnosis)
If a physician negligently reduces P’s chance of survival, then that P can recover for that lost chance of recovery
- Ps can’t recover full damages; but can recover the portion that represents their
lost chance of survival
To calculate damages ask:
> what were their chances when they came in
> what were their chances when they got out? then subtract
Proximate Cause:
scope of liability
we only want to hold a D liable for the kind of result that makes an action negligent in the first place
if not within scope of risk/unforeseeable then no proximate cause
Proximate Cause:
Foreseeability of Harm
Proximate cause is found when P suffers a foreseeable harm caused by D’s conduct
> No liability for an unforeseeable type of harm
Intervening Cause
separate act which does NOT cut off liability bc it was foreseeable
TIP: assume everything is foreseeable unless they tell you its not
Superseding Cause
Unforeseeable event that DOES cut off liability
Extent of damages after causation is found
D is liable for the full extent of the P’s injuries, even if the extent is unusual or unforeseeable (like w Eggshell plaintiff)
*Because its the TYPE of damages must be foreseeable, not the EXTENT of them (too bad D)
2 types of damages avalibile in a negligence claim?
(1) compensatory damages
(2) Punitive damages
Actual (Compensatory) Damages
> Compensates P for actual damage they’ve suffered
> Purpose is to make the P whole again
> Can include costs of physical injuries and also emotional damages
Mitigation of Damages
Plaintiff must take reasonable steps to mitigate damages
Compensatory Damages-Neg:
Personal Injury
> Medical expenses, both past and future
Lost income and reduced earning capacity
Pain and suffering, both past and future
Compensatory Damages-Neg:
Property Damage
Generally, P may recover the difference in the market value of the property before and after the injury
May allow cost of repair or replacement value as an alternative measure of damages
In a claim for negligent damage to property without physical injury, can a P recover for emotional distress?
no
Punitive Damage-Neg:
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
Collateral-Source Rule
Most states have passed statutes that eliminate or substantially modify the collateral source
rule to avoid double recovery.
Negligent Infliction of Emotional Distress (NIED
Pure Emotional Harm
Can recover in these circumstances;
- Zone of Danger
- Bystander recovery
- special relationship
- Physical manifestation (can provide basis)
Can a P who suffers only an economic loss recover in negligence?
No; A P who suffers only economic loss without any related personal injury or property
damage can’t recover in negligence
Loss of Consortium
Allows recovery for loss arising from injury to a family member
Family members (typically a spouse) can claim loss of consortium or companionship.
Survival Action
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
Wrongful Death
Brought by the decedent’s spouse or representative to recover
losses suffered by THEM (the spouse or representative) as a result of the decedent’s death
Wrongful Life
Claim by child for D’s negligent failure to properly
perform a contraceptive procedure or diagnose a congenital defect
Wrongful Birth
Claim by parents for D’s negligent failure to properly
perform a contraceptive procedure or diagnose a congenital defect
Vicarious Liability
When one person is held liable for another person’s negligence
Joint and Several Liability
2 or more people cause a single accident. We don’t know the liability of each, so P can select any single D and collect 100% of damages.
Indemnification
—The party held vicariously liable may seek indemnification from the party who
was directly responsible
Respondeat Superior
The employer is held vicariously liable for the negligence of an employee, if it occurred
within the scope of employment
Generally, are employers liable for the intentional torts of employees?
No
exception: when the employee’s conduct is within the scope of employment
Scope of employment:
Detour
Minor deviation from the scope of employment
Employer IS liable
Scope of employment:
Frolic:
Major deviation from the scope of employment
the employer is NOT liable
Independent Contractors’ Torts
Generally, employers aren’t liable unless:
> employer has retained control over any part of their work + has duty of reasonable care
Independent contractor v. employee
Matter of independence
If the employer retains a right of control over the way the employee
does the work, then that person as an employee.
Apparent agency doctrine
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 IC was an employee based on manifestations from the putative employer
are parents generally vicariously liable for their minor children’s torts?
no
Non-delegable duties of an Ind. contractor
> 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
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 the damages from any negligent party
Indemnification
more like reimbursement cus they agreed to pay for you
whereas contribution they didn’t agree to pay they were just forced to
Contributory Negligence
If P was at all negligent, then P is barred from recovery
Contributory Negligence:
“Last Clear Chance” Doctrine
P can recover if they can show D had the last clear chance to avoid injuring the plaintiff but failed to do so
Pure Comparative Negligence
P’s recovery is reduced by the percentage of their fault
can comparative Fault be a defense to intentional torts?
no
Imputed Contributory Negligence
One party’s negligence is imputed to another party
ex: The negligence of the employee might be imputed to the employer in the employer’s suit against 3rd who negligently damaged the employer’s vehicle
Assumption of the Risk
Applies when a party knowingly and willingly embraces a risk for some purpose of his own
3 categories of strict liability
(DAD)
(1) abnormally dangerous activities
(2) wild animals
(3) defective products
Strict Liability:
Abnormally Dangerous Activities
A D engaged in a abnormally dangerous activity will be held strictly liable for personal injuries and property damage regardless of precautions taken to prevent the harm
> only liable for harm that flows from the risk made from the dangerous activity
Strict Liability:
Wild animals
owners are strictly liable for the harm arising from the animal’s
dangerous propensities.
Strict Liability:
Domestic animals
if the owner knows or has reason to know that the particular
animal has dangerous propensities, the owner is strictly liable.
Trespassing Animals
the owner of any animal is strictly liable for reasonably foreseeable damage caused it’s trespass
ex: farm animals, cows, etc
*if animal on public road then negligence standard applies
Strict Liability Defense
P’s assumption of risk completely bars recovery
3 types of claims for Products Liability
BSN
B= breach of warranty claim
S = strict product liability for defective product
N= negligence
Strict Product Liability
3 ways product can be defective
(1) manufacturing defects
(2) design defects
(3) failure to warn
strict product liability
(1) product was defective
(in manufacture, design, or failure to warn)
(2) defect existed when the product left the D’s control;
(3) the defect caused the Ps injury when used in foreseeable way
*No privity requirement—can sue up and down the chain of production or distribution
*Anyone foreseeably injured by a defective product can sue
failure to warn
(i) was there a foreseeable risk that was not obvious to an ordinary user, and
(ii) were the steps taken to warn about that risk reasonable?
Who can be a defendant in a strict product liability case?
> Anyone who sells the product when it is defective is potentially strictly liable.
Must be in the chain of distribution and in the business of selling
What test may be used when determining whether a product contains a design defect?
Risk-utility test
Defenses:
Strict Product Liability
(1) Contributory negligence
(2) Comparative fault
(3) Assumption of the risk
(4) Product misuse, modification, or alteration (D liable if misuse was foreseeable)
(5) Substantial change in the product
(6) Compliance with government standards
(7) “State of the art” defense
(8) Disclaimers, limitations, and waivers
Defamation
(1) D made a defamatory statement
(2) that is of and concerning the P
(3) the statement was published to a 3rd party who understood its defamatory nature; and
(4) there’s damage to Ps reputation
Defamatory statement
diminishes respect, esteem, or goodwill of P or deters ppl from associating with the P
> they must be false in order to be actionable (opinions dont count)
are internet service providers and platforms publishers for the purpose of defamation?
no
3 types of Ps for defamation
(1) public officials
(2) public figures
a. general purpose public figure
b. limited purpose public figure
^^ Here, Ps must prove “actual malice” standard aka D knew it was false and acted w reckless disregard
(3) private individuals
a.) matter of public concern:
> P must prove D was negligent w the falsehood
> actual damages only
b.) matter of private concern:
> in most sates P must prove at least negligent w falsehood
> general damages without proving malice
libel
defamatory statement that’s written/printed/recorded
- Can recover general damages (damages that compensate P for harm to their reputation)
- doesn’t require proof of measurable harm
slander
defamatory statement that is spoken
- P must prove special damages
- requires showing of economic loss
except in slander per se
true or false:
A person who merely repeats a defamatory statement may nevertheless be liable for defamation.
true
Defenses to defamation
(1) truth
(2) consent
(3) privileges
a. Absolute privileges
(speaker immune from liability)
b. Conditional privilege
(statement is made in good faith pursuant to some duty or responsibility)
torts for invasion of privacy
I-FAP
> Intrusion
> False light
> Appropriation of the right to Publicity
> Public disclosure of private facts
Intrusion Upon Seclusion
D intrudes upon the P’s private affairs, in a manner that would be highly offensive to a reasonable person
ex: phone tapping, hacking into med records etc
False Light
(1) D makes public facts about the P
(2) that place the P in a false light
(3) which would be highly offensive to a reasonable person
Appropriation of the Right to Publicity
A property-like cause of action when someone
(1) appropriates another’s name or likeness (needs to be clear its them)
(2) for D’s advantage
(3) without consent, and
(4) causes injury
ex: Utilizing someone’s voice in a commercial
Public Disclosure of Private Facts
(1) D publicizes (enough to become public knowledge) private information about P; and
(2) The matter publicized:
a) Is highly offensive to a reasonable person; and
b) Is not of legitimate concern to the public (not newsworthy)
ex: sex tape
Defenses of privacy torts
(1) consent
(2) Qualified and absolute privilege—applicable only to “false light” and “public disclosure” claims
- Truth isn’t a defense to privacy torts
Intentional Misrepresentation (Fraud)
false representation of a material fact, opinion, intention, or law by D who its false or acted with reckless disregard for its falsity
D must’ve intended to induce P to rely on misrepresentation
Negligent Misrepresentation
failure to take due care in providing information
D negligently gave P wrong info during the course of a business/profession which caused P to justifiably rely
*defenses = neg defenses
*damages = consequential
Intentional Interference with a Contract
D intentionally interfered with a K between P and 3rd party which caused and breach and that breach caused damages to P
*a k not terminable at will
Interference with a Prospective Economic Advantage
D intentionally interferes with a prospective business relationship or benefit between P and 3rd party, in the absence of a K
Misappropriation of Trade Secret
P owns info not generally known, has taken reasonable precautions to protect it; and D acquires the secret by improper means
Trade Libel
Publication of a false or derogatory statement with malice relating to the P’s business’ title, quality, or the quality of its products; and
Causes special damages bc of the interference/damage to business relationships
Malicious Prosecution
someone 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
D sets in motion a legal procedure in the proper form but has abused it to achieve some ulterior motive
must cause damages
When will a court hold a child or a mentally incompetent person liable for an intentional tort?
when they act w the requisite intent
When may a defendant be liable to a third-party victim for IIED?
when the harm they caused to someone w their extreme and outrageous conduct is contemporaneously seen by a family member causing them severe emotional distress
*unless the purpose was to 3rd party, then they can make a claim without being family/contemporaneous watching
When is the use of deadly force justified in self-defense?
D can use self-defense when they reasonably believe
> P is about to or is intentionally inflicting unprivileged force upon D that puts the in perl of death/SBH/rape and D can only avoid it by immediately using deadly force
What is the firefighter’s rule?
If an emergency professional, like cop/ firefighter is injured by someone’s negligence, they cant recover from them if the injury results from a risk inherent in the job.
assault
putting someone in reasonable apprehension of harm or offensive bodily contact
are words enough for assault
no they have to be paired w conduct that makes P reasonably anticipate harmful or offensive contact
public nuisance
an unreasonable interference with a right common to the general public
*priv citizen can only recover if suffers a harm diff than the one of the general public
How is P’s neg relevant in strict product liability
In most comparative-fault jurisdictions, the plaintiff’s own negligence reduces his recovery in a strict-products-liability action in the same manner as in a negligence action
merchant’s privilege
A merchant is privileged to use force against another for the purpose of
(i) investigating
(ii) recapturing, or
(iii) facilitating an arrest.
How would a D act intentionally
i) acts with purpose of causing the consequences of his act; or
ii) He acts knowing that the consequence is substantially certain to result.
trespass to chattel
D intentionally interferes with the plaintiff’s right of possession by either:
i) Dispossessing P of the chattel;
or
ii) Using/intermeddling with the plaintiff’s chattel.
Note: Trespass to chattels requires that the plaintiff show actual harm to or deprivation of the use of the chattel for a substantial time.
conversion
D intentionally commits an act depriving P of possession of her chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel.
Good Samaritan” statute
protects doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence;
standard of care for professionals
duty to act with the same skill, knowledge, and care as an ordinary practitioner in their community
what 3 torts does transferred intent usually apply to?
> battery
assault
false imprisonment
true or false
The defendant is liable for the fair market value of the chattel at the time of the conversion.
true
Innkeeper duty of care
duty to use reasonable care to protect its guests while they are on the premises.
Evidence that the innkeeper complied with (or deviated from) community or industry custom is relevant to—but not conclusive on—the issue of negligence.
Common-carrier duty of care
common carriers owe a duty to use reasonable care to protect passengers from harm that arises within the scope of that relationship.
Duty to known trespassers
to warn them of artificial dangers and act with reasonable care
res ipsa loquitur
Negligence is inferred if
(1) the plaintiff’s harm would not normally occur unless someone was negligent
(2) the defendant had exclusive control over the thing that caused the harm, and
(3) the plaintiff did nothing to cause the harm
Duty to invitees
(business guest)
inspect for unknown danger
warn and make safe & prevent harm
Substantial factor test
Where there are multiple forces combined to cause Ps harm and any one alone would’ve been sufficient to cause the harm, the test for actual causation is whether the defendant’s conduct was a substantial factor in causing the harm.
Is a service provider subject to strict product liability?
No, strict products liability claims can only be brought against commercial suppliers or sellers
- bc they’re in the business of manufacturing, selling, or otherwise distributing products of the type that harmed P
contributory negligence
P barred from recovery if any of their own negligence contributed to the harm.
Joint and several
vs.
several
Joint and several = can recover total damages from any of the Ds
vs.
Several = can recover only the portion each D is individually at fault for
Defamation according to plaintiffs
Private person:
> D must act with knowledge that statement is false OR negligent disregard for its falsity
Public Figures & Officials:
> D must act with actual malice!! Knowledge that statement is false OR reckless disregard for its falsity
Damages for:
Trespass to chattel
vs.
Conversion
Trespass to Chattel:
> damage cost
Conversion:
> full value of the chattel at the time of conversion
intentional misrepresentation
> D must’ve known of the falsity of the representation or acted with reckless disregard as to its truth.
> P must’ve justifiably relied on the misrepresentation.
> The misrepresentation must’ve been of a material fact, opinion, intention, or law.
can an initial aggressor claim self-defense?
Yes, if they non-deadly force they used then met w deadly force
parasitic damages
Damages for emotional distress that accompany a physical injury
design defect
When a product is less safe than contemplated by the ordinary consumer
Neg essay:
Duty, breach causation, damages
defenses:
> X was a superseding cause that cuts off my liability as the defendant (P would rebut that it was intervening bc foreseeable)
Landowner Duty:
Known/Anticipated Trespassers
(1) warn them about hidden, artificial dangers that they’re unlikely to uncover but that are known to the landowner
(2) use reasonable care in activities conducted on the land.
When can the owner of a domestic animal is strictly liable
When
(1) the owner knew or had reason to know about the animal’s dangerous propensities and
(2) P’s harm arose from those dangerous propensities.
When does a P have a claim for IIED that also physically or emotionally harmed a third party? (so both would have claims)
When:
(1) P contemporaneously perceived that conduct
(2) P was closely related to the third party, and
(3) D knew of the P’s presence and that relationship
pure-comparative fault
P’s recovery is reduced by their percentage of fault
In a pure comparative-fault
When P and D are both entitled to recover damages, P’s recovery is reduced by D’s recovery
who is duty of cared owed to?
A duty of care is owed only to persons who might be foreseeably harmed by the defendant’s negligent conduct.
learned-intermediary rule
Under the learned-intermediary rule, a manufacturer of a prescription drug or medical device won’t 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.
Driver duty of care:
Majority jurisdictions
vs.
Minority
Majority jurisdictions
> Duty of ordinary care (both to ppl who ride for free & pay)
Minority:
> “guest statutes” say the only duty is to refrain from gross or wanton and willful misconduct
(so likely wont be liable for negligence)
When is a supplier of a component strictly liable for it being integrated into a defective product?
when
(1) the component is defective
or
(2) the supplier substantially participated in the process of integrating the component into the product’s design and the component’s integration caused that product to be defective.
When is an employer is vicariously liable for its employee’s intentional torts
when
(1) reasonable force is inherent in and committed during the employee’s job or
(2) the employee is authorized to act on the employer’s behalf and has a position that provides an opportunity to commit the tort.
When will a physician who fails to disclose the risks of a medical treatment or procedure to a patient be liable for negligence?
When:
(1) the failure to disclose caused the patient to consent and
(2) the undisclosed risk materialized and resulted in physical harm.
When are punitive damages recoverable for:
> Negligence
> Intentional torts
Negligence
> Usually not recoverable n negligence unless there is evidence D was wanton and willful, reckless, or malicious
Intentional torts
> Typically allowed for intentional torts
Can someone who is not in the business of selling a product/commercial seller be held strictly liable if P provided service of the product by them?
No; someone who is a service provider or not the business of selling the defective product cannot be held strictly liable
Is assumption of the risk a defense to intentional torts?
No; think of battery.
Can a prima facie case of negligence be rebutted by showing D had no control over their compliance?
Yes,
Is contribution allowed for intentional torts?
No, contribution isn’t allowed in favor of someone who committed an intentional tort even if bot tortfeasors were guilty.
Meaning he can be indemnified for the entire amount by the other tortfeasor
True or False:
To make out a prima facie case in negligence, P must introduce evidence of negligence
True
can you make a prima facie case based on Res Ipsa Loquitiur if the negligence could’ve stemmed from more than 1 D?
No; it needed to have been in D’s exclusive control
when can a parent be liable for their child’s acts
A parent wont be liable for the child’s tortious behavior
A parent will be liable for their own negligence in controlling their child
can a supplier be liable for products liability under a failure to warn theory if the warning wouldn’t have prevented the harm?
no; it’d have to be a claim for a design defect
defamation
defamatory language concerning the P that is published to a third person which causes damages to Ps reputation
will foreseeability that other people would overhear/find out satisfy the element in defamation requiring the defamatory to be published to a third party?
yes
is physical harm required for NIED?
maj of courts say yes
True or false:
The majority of courts allow standalone emotional harm to be recoverable when there’s been a mishandling of a dead body of their relative resulting in severe emotional distress
True
is contributory negligence relevant for strict liability?
no
is contributory negligence a defense to negligence?
Yes
In a trespass to chattels claim, what is required to make a claim if the P only touched D’s chattel?
actual harm or a substantial interference
is assumption of the risk a defense to strict liability?
Yes; assumption of the risk can be a complete defense to strict liability
if someone misrepresents something to you + you don’t rely on it + you later find out of the misrepresentation, can you make a valid claim?
No because for a valid claim of misrepresentation you needed to have gotten harmed by reliance
default system of liability yon the MBE
> joint and several liability
pure comparative negligence
wrongful birth
lawsuit by parent when but-for Ds neg mom wouldn’t have had the baby
can a landowner forcibly expel a trespasser when the trespasser did so by necessity?
no
loss of chance of survival
P can recover a portion of their damages for the reduction in survival chance
Is assumption of the risk a defense to negligence?
Yes; not a complete bar though, it just reduces damages
does a manufacturer have an obligation to warn against obvious dangers?
no
does liability for a wild animal trespassing extend the owner of the land (if its not the same person as owner of the animal)?
No; unless the landowner had a right to possess the animal.
Can a P prevail on a claim of negligent misrepresentation if it used the erroneous information for a purpose other than the one for which the information was provided?
No; a plaintiff cannot prevail on a claim of negligent misrepresentation if it used the erroneous information for a purpose other than the one for which the information was provided.
Will a statement that’s substantially true, even though some details are inaccurate, considered defamatory?
No; A statement that is substantially true, as judged by the harm to the plaintiff’s reputation, is generally not defamatory, even though some details are inaccurate
In an action for misappropriation of the right to publicity does the D need to use the Ps name or picture?
No; even just mimicking the plaintiff’s voice is sufficient for a claim of misappropriation of the right to publicity
Are attorney’s fees in a personal injury suit recoverable?
No; Attorney’s fees in a personal injury suit are not recoverable.
How does product misuse affect the recovery of damages in a strict products liability action?
The misuse, alteration, or modification of a product by the user in a manner that is neither intended by nor reasonably foreseeable to the manufacturer typically negates the manufacturer’s liability.
if its feasible for a manufacturer to install a safety device, is it fine if they don’t but warn the purchaser that the product is unsafe?
No; where it’s feasible to include a safety device, it must be included
True or False:
RAP is not an issue when analyzing future interests that revert to the grantor (i.e., reversion, possibility of reverter, right of reentry).
true
3 types of concurrent ownership and their unity
- Tenancy in common: Unity of possession
- Joint tenancy: Unities of possession, interest, time, and title (““PITT””)
- Tenancy by the entirety: Unities of person, possession, interest, time, and title
what is created as a result of a failed attempt to create an easement?
A license
True or False:
In most jurisdictions, the measure of recovery in intentional misrepresentation cases is the benefit of the bargain.
true
you cant recover based on strict liability if only the product was damaged and not actual people
economic loss rule says you cant recover when there’s only been economic damages
punitive damages - wanton and willful misconduct
