MBE Torts Flashcards
Intentional Tort: Prima facie case of intentional tort
Act by D- volitional movement
Intent - specific and general
Causation
Intentional Tort: Specific and General Intent
Specific intent - intent to bring about specific harm.
General intent - substantial certainty that tortious conduct will result from D’s act
Intentional Tort: Causation (intentional tort)
D’s conduct must be a substantial factor in bringing about the resulting harm
Intentional Tort: Transferred Intent Doctrine
D acts with the intent to commit a given tort but:
A: Commits it against different person than intended;
B: Commits a different tort than intended
or
C: both
Intentional Tort: Transferred intent from intended act to tort actually committed
Applicable Torts
D’s original intent transfers to the tort actually committed and/or person actually harmed, resulting in D’s liability in what types of charges?
Assault,
battery,
false imprisonment,
and
trespass to land or chattel.
Elements of Assault
Act by D
- that creates a <strong>reasonable apprehension in P</strong>
- of <strong>harmful or offensive contact to P’s person. </strong>
Intent
Causation
Assault
P’s requirements (knowledge and apprehension)
P’s knowledge/expectation
- knowledge of D’s act
- an expectation that it will result in immediate harmful or offensive contact to P’s person.
- The apprehension must be of immediate contact. Threats of future contact are insufficient. Similarly, there is no assault if defendant is too far away to do any harm or is merely preparing for a future harmful act.
P’s Apprehension
- The apprehension must be reasonable.
- Apprehension may reasonably exist though actual contact is impossible, so long as there is the apparent ability to cause contact.
- Fear or intimidation need not be present.
Element of Assault: “Apprehend an Immediate harmful or offensive contact”
P must apprehend an immediate or imminent battery.
Words or threats of future battery are usually insufficient, unless coupled with some overt act (e.g picking up a weapon, clenching fists, etc)
-
A conditional threat, when combined with an overt act, is sufficient for assault, so long as D did not have the right to impose the condition (self-defense).
- E.g., “Your money or your life” is assault. “If you try to hit me, I’ll fight back” is not assault.
However, words may negate an assault (if they remove Ds reasonable apprehension).
Element of Assault: Damages
Actual damages are not required.
Nominal damages may be awarded
Punitive damages when there is malice.
Battery - elements
Defendant will be liable for battery when she intends harmful or offensive contact and harmful or offensive contact results.
Harmful or offensive contact by D to P’s person
Intent
Causation
Battery - reasonable person standard
Battery - scope of contact
Battery - P’s mindset
Battery - reasonable person standard
- Whether the contact is harmful or offensive is judged by the reasonable person test, an objective standard.
Battery Contact - scope of contact
- Anything connected to plaintiff’s person is considered plaintiff’s person, e.g. something she is holding.
Battery - P’s mindset
- P need not be conscious that the contact occurred at the time.
Battery - Damages
Actual damages are not required.
A court may award nominal damages, or punitive damages where malice was present.
False Imprisonment Elements
WILLFUL act . . .
. . . intending to confine the plaintiff without the plaintiff’s consent and without authority of law
D’s act causes or indirectly the plaintiff’s confinement
P is aware of his/her own confinement
False Imprisonment - Act
Threats of False Imprisonment - Threats of immediate physical force may also be sufficient to be acts of restraint. A mere threat to imprison will not qualify for false imprisonment. Typically when determining whether a threat counts as false imprisonment, the court will look at whether the plaintiff had a just fear of injury.
Invalid Use of Legal Authority - An example of an invalid use of legal authority is the detainment or arrest of a person without a warrant, with an illegal warrant, or with a warrant illegally executed. So long as the person is deprived of his personal liberty, the amount of time actually detained is inconsequential.
Shopkeeper’s Privilege - One of the affirmative defenses to the false imprisonment tort is called the shopkeeper’s privilege defense. in this situation, a defendant store-owner has detained the plaintiff because the defendant believed that the plaintiff has stolen or is attempting to steal an item from the defendant. The doctrine of shopkeeper’s privilege states that in this situation, a shopkeeper defendant who reasonably believes that the plaintiff has stolen or is attempting to steal something from the defendant shopkeeper may detain the plaintiff in a reasonable manner for a reasonable amount of time to investigate.
False Imprisonment: Confinement to bounded area
P must be aware of or harmed by confinement
- P’s freedom of movement must be limited
- Physical barriers;
- Physical force;
- Failure to provide escape when there is a duty to provide it.
No reasonable means of escape THAT P IS AWARE OF
- If reasonable person could get out, no false imprisonment
If means of escaping will result in the risk of physical harm to the detainee, then the area is bounded.
Threatening to harm the detainee’s family if the detainee leaves would also result in the area being bounded.
Intentional Infliction of Emotional Distress - elements
Defendant will be liable for intentional infliction of emotional distress when she acts in a manner amounting to extreme and outrageous conduct, and with the intent to cause plaintiff severe emotional distress, or with recklessness as to the effect of her conduct, and severe emotional distress on the part of the plaintiff results.
- Extreme and outrageous conduct by D
- Intent or recklessness (as to causing the distress)
- Causation
- Severe emotional distress in P results
IIED
Extreme and Outrageous Conduct - Defined
Non-Outrageous Conduct - When can it trigger IIED?
Conduct exceeds bounds of decency in society
-
Examples of outrageous conduct:
- Extreme business conduct, such as extreme collection methods, may be actionable.
- Misuse of authority in some circumstances may be actionable, e.g. school authorities threatening pupils.
- Offensive or insulting language will generally not be characterized as outrageous conduct unless there is a special relationship between plaintiff and defendant or a sensitivity on plaintiff’s part of which defendant is aware.
Non-outrageous conduct may be actionable if:
- Individual Targeting: D targets P’s known sensitivity or weakness D’s conduct is continuous
- Fragile Class: Repetitive targets P who is a member of a “fragile” class (elderly, children, preg. women, D is a common carrier or innkeeper)
- Duties to Patrons: Common carriers and innkeepers owe special duties to their patrons that will be a basis for liability even when the act is less than outrageous.
IIED - “Severe emotional distress”
P must suffer severe emotional distress from D’s conduct.
- Physical symptoms not necessary (usually are necessary in Negligent inflication of emotional distress)
Note: watch for facts indicating extreme, outrageous conduct but P is unbothered- this is not IIED!
IIED - Intent or recklessness
Recklessness = D disregards the likely consequences of his acts
IIED - Bystander Requirements
When D intentionally causes severe, physical harm to a third person and the P suffers severe emotional distress because of her relationship to the injured person, the elements of intent and causation may be harder to prove.
Requirements:
- P was present when the injury occurred to the other person;
- P was a close relative of the injured person;
- and
- D knew that P was present and a close relative of the injured person.
Note: P need not establish presence or family relationship if she shows D had a design or purpose to cause severe distress to plaintiff. E.g. D calls P to tell her (truthfully) that she has killed her best friend, for the purpose of causing her distress.
Many courts have allowed recovery where the mental distress results from intentional or reckless mishandling of a relative’s corpse.
Interference with Property: Three types of Interference
occurs through any of the following
Dispossession - depriving P of his possessory rights in chattel
Trespass - minor interference or damage
Conversion- significant interference or damage that justifies D paying chattel’s full value.
Chattel
tangible personal property (moveable)
Recapture of Chattels
A defense to trespass
D may use peaceful means to recover possession of chattel taken unlawfully.
Use of force-Recapture of chattels
reasonable force may be used to recapture chattel, but not deadly force or force sufficient to cause serious bodily harm
Recapture of Chattel - Privilege to enter depends on
Privilege to enter depends on who possesses property:
- Wrongdoer: reasonable time to reclaim chattel in a reasonable manner.
- Innocent person’s property- 1st give notice required to landowner. If he refuses, D may enter at a reasonable time and peaceful manner.
Recapture of chattels - limitations
D-Owner may recapture from
- original wrongdoer
- or
- 3rd person who knows the chattel was wrongfully obtained.
D-owner must make a timely demand for return
- exception not required if making demand would be futile or dangerous
Privilege to enter depends on who possesses property:
- Wrongdoer: reasonable time to reclaim chattel in a reasonable manner.
- Innocent person’s property-
- 1st give notice required to landowner.
- If he refuses, D may enter at a reasonable time and peaceful manner.
Exception that DISALLOWS D (eliminates his privilege) to enter another’s property to retrieve chattel
If D’s chattel is on another’s property through D’s fault, D does not have a privilege to enter property.
Conversion
significant interference or damage that justifies paying chattel’s full value
Can become conversion under continuing trespass theory
Requirement for conversion
A longer and/or more damaging use of P’s chattel gives rise to conversion.
All that’s required is that D’s conduct cause a serious invasion of the chattel interest of another in some manner.
___________________
Conversion does not require that D damage or permanently deprive the owner of the chattel.
Trespass to Land-Elements
Physical invasion of P’s real property by D
Intent- D does not need to know the land belongs to another
Causation
Tresspass and Conversion
Damages (definition and types)
Trespass - P can recover the cost of repair or rental value of Chattel.
Conversion- Conversion does not require that D damage or permanently deprive the owner of the chattel. Only requires that D’s conduct cause a serious invasion of the chattel interest of another in some manner.
- full market value at the time of conversion
- or
- repossess the chattel. (replevin)
Trespass to Land-Physical invasion requirement
- D enters P’s property or propels an object onto it. ( walks, throws ball, chases someone)
- P must only have actual or constructive possession- ownership not required
- Must be a physical invasion
- P’s real property includes: surface space, airspace, and subterranean space to a reasonable distance.
Trespass to Land- damages
Damages not required- compare to trespass to chattel and conversion
Shopkeeper’s privilege
Store may detain suspected thief if:
- reasonable cause to believe theft occurred
- detainment conducted in reasonable manner
- detains for only reasonable period of time
- detains only for investigation
- No deadly force allowed
NOTE: Shopkeeper may be held liable for any harm caused by acts that exceed the privilege.
Consent-Definition
A defense to all intentional torts.
Consent may be given expressly. It may also be implied from custom, conduct, or words, or by law.
Capacity required of P
NOTE: drunk, mentally impaired, children incapable of consent
Express consent- Definition and Invalid Forms of Express Consent
P gives D verbal or written consent.
Exceptions to express consent:
- Mistake: Consent invalid if D caused mistake.
- Fraud: not valid if the fraud goes to an essential matter that induced the consent.
-
Duress: Usually invalid.
- Note that threats of future action or future economic deprivation do not constitute legal duress to invalidate consent.
Implied consent-definition
Implied consent is generally of two types:
Apparent consent: a reasonable person would infer from P’s conduct that she consented. E.g. engaging in a contact sport. May also be inferred from usage and custom, e.g. a person is presumed to consent to the ordinary minor bumping experienced in a crowd.
Implied by law: where action is necessary to save a person’s life or some other important interest in person or property.
- Applies in emergency situations where P is incapable of consenting and a reasonable person would conclude some contact is necessary to prevent death or serious bodily harm. E.g. emergency surgery on unconscious person.
Scope of Consent - Capacity of Individuals, Criminal Acts, D’s Actions
Capacity: Incompetents, drunken persons, and very young children are deemed incapable of consent. Consent of parent or guardian is necessary.
Criminality: A person cannot consent to criminal activity. The modern trend is that consent is ineffective where the criminal act is a breach of the peace (e.g. a street fight) and effective when it is not (e.g. prostitution). Consent not a good defense when P is part of a class the law exists to protect.
Scope of Consent: When Ds actions exceed the scope of the consent, the defense is invalid for the additional acts.
Self-Defense- requirements
When a person reasonably believes she is being, or is about to be, attacked, she may use such force as is reasonably necessary to protect herself.
- Reasonable mistake as to the threat of attack does not invalidate the defense.
- Initiating Force: An aggressor may not use the defense. However, if the aggressor used non-deadly force, and was then confronted with deadly force, he may use deadly force in response.
- No duty to retreat (majority). One may stand one’s ground and repel an attack.
- Reasonable Force: One may not use deadly force in response to non-deadly force. The amount of force used must be reasonable.
-
Covers accidental injuries on 3rd Parties.
- Exceptions:
- D might be liable to the bystander for negligence.
- If D deliberately injured a bystander to protect himself, the defense is not a good one.
- Exceptions:
Defense of Others- requirements
D steps in the shoes of the intended target.
D may not use greater force than the intended target could have reasonably used
Reasonable mistake by D is allowed
Defense of Property - Generally
Available to prevent tort against property
Request to desist is usually required, unless the circumstances make it clear that such request would be futile or dangerous.
Deadly Force NEVER ALLOWED, including traps, spring guns, and vicious dogs.
Defense of Property - Mistake
Reasonable mistake does not invalidate the defense, if mistake pertains to
- whether an intrusion occurred
- whether a request to desist is required
EXCEPTION - Mistake will invalidate the defense if entrant had a privilege to enter the property that supersedes the defense of property right, so long as the entrant did not cause the mistake, e.g. by refusing to inform the property owner of the facts.
Defense of Property - Privileges to Enter Land
Privileges to enter land that supersede the defense of property right are:
necessity,
right of reentry,
right to enter another’s land to recapture chattel.
_______________________________
Privilege SUPERCEDES the defense of property right, UNLESS entrant causes the mistake e.g. by refusing to inform the property owner of the facts.
Necessity-Definition
A defense to torts against property (trespass to land, trespass to chattel, conversion) in which D damages P’s property in an effort to avoid a greater danger
Necessity Requirements
D’s interference with P’s property must be reasonably necessary to avoid immediate threatened injury.
Immediate Threatened Injury > interference undertaken to avert it.
Types of Necessity
Public Necessity - absolute defense
Private Necessity- limited defense
Public Necessity- requirements
Absolute Defense - P cannot recover any damages
D’s invasion of P’s property must be reasonable necessary to protect the community or a large group of people
Private Necessity- requirements
where the defense is to protect individual persons or property, the actor must pay for the damage she causes.
- P can recover actual damages, but _not punitive or nominal damage_s, (unless D’s act benefited P.)
Intrusion upon seclusion has these elements
An act of prying or intruding by D ⇒ upon P;
The intrusion would be objectionable to a reasonable person;
and
Object of intrusion or prying is “private.”
Publication/Disclosure of Private Facts
Defined
- Publication or public disclosure by D
- Of private information about P;
- The reasonable person would object to the facts being made public.
_____________________________________________
The Facts MAY or MAY NOT be TRUE
A public figure usually not a P in this type of action.
Matters of public record may never constitute private facts.
Defamation- Elements
Defamatory statement- adversely affect’s P’s reputation (must be based on specific facts).
- Statements of fact may always be defamatory, but <em>statements of opinion </em>may also be if appear to be based on specific facts + express allegation of those facts would be defamatory.
- The statement may be defamatory on its face, or by innuendo, e.g. statement that a woman has just given birth when she has only been married one month.
Concerning P- must be concerning an identifiable group. (E.g., saying, “Someone in San Francisco is a draft dodger,” is not slander.).
- Note: P <u>MUST BE ALIVE</u>
Publication - statement must be intentionally or negligently made to a 3rd person who understood it
- No requirement that 3rd party be a part of the conversation - can be a listener/reader/etc
Harmful to P’s reputation
__________________________
Falsity & Fault - only required if statement involves a matter of public concern or a public figure or official.
Defamation
Libel, Slander, and Slander Per Se DEFINED
Libel = written defamatory statement
- An oral repetition of libel is still libel, not slander.
- NOTE: TV and radio broadcasts are considered libel
Slander = a spoken defamatory statement
Slander Per Se = a defamatory statement that:
- Concerns and adversely reflects on P’s business or professional reputation
- Claims P has a Loathsome Disease
- Claims P committed a crime of moral turpitude
- Imputes a woman’s chastity
Defamamtion - Liability for republication?
the republisher of a defamatory statement is liable to the same extent as the original publisher
- Each republisher along the chain is liable.
A republisher may be liable even if she states that she does not believe the allegation and that it came from a different source.
Defamation damages burden
P’s burden in proving damages depends on whether it was libel, slander, or slander per se
Libel - P does NOT have to prove special damanges
-
Libel = written defamatory statement
- NOTE: TV and radio broadcasts are considered libel
Slander - P MUST prove special damages unless statement constitutes slander per se
- Slander = a spoken defamatory statement
- Special Damages - a specific economic loss
Slander Per Se - Does not need to prove special damages
a defamatory statement that:
- Concerns and adversely reflects on P’s business or professional reputation
- Claims P has a Loathsome Disease
- Claims P committed a crime of moral turpitude
- Imputes a woman’s chastity
Defamation-Constitutional Considerations
1st Amendment Considerations
1st amend. considerations arise when defamation involves ….
a public figure,
- Public Figures=one who has pervasive fame or notoriety or who voluntarily assumes a central role in a public matter
public official
- Public Official-= public office holder
matter of public concern.
- Matter of public concern- statement related to a community of interests or concerns (includes national interests)
Defamation-Constitutional Considerations-
Elements If defamation involves a matter of public concern:
If defamation involves a matter of public concern, P must prove:
- Falsity- P must prove statement was falso
- Fault- P must prove D was at fault;
Standards differ for public vs. private figures.
- Public official/figure = actual malice standard (knowledge of the statement’s falsity or reckless disregard to whether it was false)
-
Private figure = negligence standard
- Note: for defamation involving private figures and private matters there is no fault standard at common law
Defamation: Damages Consideration: Libel
For libel, general damages are presumed and need not be proven.
Special damages in this context mean pecuniary losses.
Defamation: Damages Consideration: Slander
For slander, general damages are not presumed and must be proven, except in the cases of slander per se.
P must prove special damages unless the statement constitutes slander per se.
Special damages = a specific economic loss.
Defamation: Damages Consideration: Slander Per Se
DO NOT NEED TO PROVE SPECIAL DAMAGES FOR SLANDER PER SE
Defenses to Defamation-types
Consent
Truth
Privilege
Defenses to Defamation: Consent
Consent is a complete defense
P may consent to an organization investigating her and sharing its finding with potential employers
Defenses to Defamation: Truth
Truth is a complete defense for cases of purely private concern
Defenses to Defamation: Absolute or Qualified Privileges
Absolute privilege:
- Government official communications: All 3 branches
- Judicial proceedings (to judge, lawyers, witnesses)
- Legislative proceedings
- Executive proceedings
- “Compelled” broadcast or publication (e.g. equal time for candidates)
- Communication between spouses
Qualified privilege: D’s liability for defamatory statements is limited if the purpose of the speech is to promote truthfulness and/or related to fair comment and criticism.
- Reports of public proceedings: excuses accurate reports only
- Public interest: e.g. statements to a parole board
-
Fair comment and criticism: matters of general public interest
- letters of recommendation/employment reference, (Must be asked, cannot affirmatively make slanderous statement); book review,; reports of public proceedings; bank teller disclosing activity of account co-owner
Malicious Prosecution -definition
Arises when D initiates a frivolous charge or claim against P with an improper purpose (file false police report).
Malicious Prosecution: Elements
- D commenced a prior criminal or civil legal proceeding against P. Note: Prosecutors are immune from this) 2. Proceeding terminated in P’s favor 3. No probable cause for the original proceeding ( D knew P was not guilty or had insufficient facts to reasonable believe P was guilty) 4. D had improper purpose in initiating the proceeding 5. Damages
Abuse of Power- definition
Arises when D uses the legal system as an ulterior purpose to threaten or act against P
Misrepresentation-types
Intentional-fraud or deceit Negligent
Intentional Misrepresentation-elements:
- D misrepresents a past or present material fact
- D knows or believes the misrepresentation is false
- D intends to induce P to act or refrain from acting in reliance on the misrepresentation
- Actual reliance by P (causation)
- Justifiable reliance by P
- Damages - P must suffer monetary loss
Negligent Misrepresentation elements:
- D misrepresents a past or present material fact in a business or professional setting
- Breach of duty of care owed to a particular P (ie D knew P could rely on the misrepresentation)
- Actual and justifiable reliance by P
- Damages- P must suffer monetary loss
Appropriation
use of P’s name or likeness for commercial purposes (promo or ads) without consent.
Newsworthiness exception
no liability for use of name or likeness for reporting news
Intentional Interference with Business Relations
Elements and defenses
Arises when a 3rd party interferes with an existing contract
-
Plaintiff:
- has a valid contractural relationship or business expectancy (includes contracts between P and 3rd party)
-
Defendant:
- has knowledge of the relationship or expectancy
- Intentionally interferes with that relationship
- Interference causes a breach or termination in P’s contract or expectancy
- Damages
Defenses
- D’s conduct a may be privileged when it is a proper attempt to obtain business or protect his interests (eg. competing for P’s customers)
Negligence Elements
Elements:
- ^ Damages
- ^ Causation
- ^ Breach
- ^ Duty
CLIMB the LADDER
Negligence Elements - Hierarchy of Elements (Ladder)
Hierarchy is bottom up on image. D will have a stronger argument for defeating P at the lowest level possible.
- Ex. defeating Duty is a stronger answer than Causation
Elements:
^ Damages
^ Causation
^ Breach
^ Duty (to reasonably foreseeable Ps in zone of danger)
Negligence:Duty of reasonable care
Duty of reasonable care: Imposed on all human activity.
Duty to act as an ordinary, prudent, reasonable person would act.
Negligence - duty of care - Reasonable person
Physical: Someone with Ds physical characteristics, but with the knowledge and mental capacity of an ordinary person E.g. a reasonable epileptic would not drive a car.
Mental: The reasonable person has average mental ability. Thus, mentally retarded people are liable for harm caused by their negligence, even if it is the result of their lower mental capacity.
Negligence
Foreseeable Victim
Those within the zone of danger (area around D’s activities in which a P could foreseeably be injured).
Negligence
Foreseeable Victim
Rescuer’s Exemption
Rescuer’s Exemption: if D puts himself or another in danger and a third person attempts to rescue, D can be held liable for the rescuer’s injuries, even if unforeseeable.
EXCEPT Firefighters and other Professionals who assume the risk as professionals
Negligence
Foreseeable Victim
Prenatal Injury or Death
A duty of care is owed toward viable fetuses. Thus, prenatal injuries are actionable.
Death of Fetus: Most states also permit a wrongful death action if fetus dies.
Disabled Fetus: Wrongful life damages are not permitted, when the P is a person born disabled because of failure to diagnose a birth defect.
- However, parents may have an action for wrongful birth in such cases, allowing damages for additional medical costs; or wrongful pregnancy for failure to provide a contraceptive procedure, allowing damages for unwanted labor (medical costs, pain and suffering).
- If the child is born healthy, most states do not allow recovery for additional child-rearing expenses.
Negligence: Duty of Care - Intended economic beneficiaries
Intended third party beneficiaries of economic transactions are owed a duty of care if D could reasonably foresee that negligence would cause harm.
Negligence - Children’s standard of care and Minimum Age for Liability
For child Ds, the duty is to exercise the level of care that a child of the same age, experience, and training would exercise.
Children get Adult Standard if:
- engaged in an adult activity
- or
- inherently dangerous activity.
_______________
Minimum age for liability: Most courts do not have a set age at which liability cannot attach but judge each case on the evidence. However, it would be unlikely for a court to find a duty for a child below the age of four.
Negligence:Standard of Care and Innkeepers
held to the utmost standard. Liable for even slight negligence to passengers and guests
Negligence:Standard of Care- custom or usage in an industry
can be used to establish a standard of care, but failure to adhere does not automatically give rise to a breach of duty
Negligence:Standard of Care- Professionals
Act with the care of an average member of the profession in good standing in similar communities.
Specialists (neurosurgeons) are held to a national standard of care
Statutory Standard of Care: Negligence Per Se
An existing statute may establish a duty of care, in which case the specific duty imposed by the statute will replace the general common law duty of due care
Violation of the statue means P must only prove causation, not breach of duty.
Compliance Does not automatically clear D of Liability
Statutory Standards of Care and Negligence Per Se Requirements
- Statute provides a criminal penalty.
- Standard of conduct is clearly defined in the statute
- P is within the class of people the statute was designed to protect
- The statute was designed to protect against the type of harm P suffered
_________________________
Statutory Standards of Care and Negligence Per Se does not apply if:
Compliance is more dangerous than non- compliance
Compliance is impossible under the circumstances
Negligence: Duty of Care of owners/occupiers of land to trespassers
ATTRACTIVE NUISANCE DOCTRINE - CHILD TRESPASSERS
Owner must take reasonable care to eliminate dangers on property or protect children from dangers if:
- owner is aware or should be aware of dangerous condition
- owner knows or should know children are in vicinity
- condition likely to cause injury if encountered by children
- because children unable to appreciate the dangerous condition
- Magnitude of the risk outweighs its utility or expense to fix
Negligence: Duty of those off Premises
No duty regarding natural conditions (exception for decaying trees next to sidewalks or streets in urban areas)
No duty regarding artificial conditions, with major exceptions:
- Landowner liable for unreasonably dangerous conditions (e.g. allowing water to run off roof and form ice on sidewalk).
- Duty to take due precautions to protect passersby, e.g. erecting a barrier to keep people from falling into an excavation at the edge of the property.
- Duty to control conduct of others on his property to avoid unreasonable risk of harm to others off the property.
Negligence: Duty of Care
Licensees and Invitees
Invitee: an official relationship, i.e. a business customer or a visitor to a public building.
- Owed the highest duty: duty to exercise reasonable care, and take affirmative steps for P’s safety (i.e. in a nonfeasance case).
Licensee: a social guest.
- Owed _only the duty to warn of known,_ concealed dangers. No requirement of reasonableness.
Negligence: Duty of Care of owners/occupiers of land to trespassers
Unknown or Undiscovered Trespassers
NO DUTY OWED
Only if UNKNOWN or Undiscovered. There is a duty owed to known or anticipated trespassers.
Negligence: Duty of Care of owners/occupiers of land to trespassers
ANTICIPATED TRESPASSERS
Owner has reason to believe trespassers on land.
Activities: owner has duty of reasonable care in carrying out activities on property
Dangerous Conditions- owner has duty to make safe or warn of any
- known,
- concealed,
- man-made or artificial hazards.
Negligence: Duty of Care of owners/occupiers of land to trespassers
Exceptions
No duty owed to Trespassers as general rule. Three exceptions:
Known habitual Trespassers: duty to warn or make safe concealed dangers.
Children (attractive nuisance): When young children are attracted onto the land and a dangerous condition exists (the condition need not be the attraction), if:
- Owner knows <em>(or should know)</em> > children are in vicinity likely <em>to trespass </em>and encounter dangerous artificial condition, AND
- Owner aware or should be aware of dangerous condition (natural or artificial) on her property
- Dangerous condition likely to cause injury if encountere
- Magnitude of Risk outweighs Expense or Utility of Fixing the Dangerous Condition
Holders of Easements and Licenses owe a duty of reasonable care to trespassers. Employees and independent contractors do not.
Negligence: Breach of Duty: Res ipsa loquitur-requirements
The very occurrence of the accident’s causing P’s injuries suggests negligent conduct. Arises if facts cannot establish breach of duty b/c circumstances surrounding event are unknown to P
P must show:
- Harm would not normally occur absent negligence
-
Harm normally results from negligence by one in D’s position
- Often by showing injury-causing instrument in D’s exclusive control
- Injury was not attributed to P
Negligence: Actual Cause
“But For” Test
Establish a causal connection between the alleged breach of duty and the resulting injury.
“But for” test- but for D’s alleged breach of duty, P’s injury would not have occurred.
Negligence: Actual Cause
Substantial factor test
Substantial factor test: for multiple causes of P’s injury.
- D’s breach is the actual cause if it was a substantial factor in bringing about P’s injury.
Used if multiple causes bring about P’s injury and any one of them alone would have caused the injury (fire start on D1’s land and D2”s land, each of which spreads to P’s land and destroys home)
Negligence: Actual Cause
Burden shifting test
Burden shifting test
Burden of proving actual cause shifts to multple Ds
- ^ if no D can prove another D was responsible >>> all D’s are jointly and severally liable.
Used if multiple D’s act (often simultaneously) only one causes P’s in jury, but unclear which D caused injury. (p hit by stray bullet at busy firing range. and its unknown which shooter hit P)
Note MBE may refer to actual cause as “ cause in fact”
Negligence: Proximate Cause, Generally
Causes or Intervening Causes that are (any of following)
-
Foreseeable
- <em><strong></strong></em>Measuring stick for proximate cause.
- D is liable for the forseeable outcome of his conduct
- Direct
- Indirect
Establishes that it is fair under the law to hold D responsible for P’s injuries.
Negligence: Proximate cause- Forseeability
Measuring stick for proximate cause.
D is liable for the forseeable outcome <strong>at TIME OF ACT</strong>of his conduct
Negligence: Proximate Cause Indirect/Intervening Causes
Indirect/Intervening Causes
D’s conduct > CONTRIBUTING ACTS P’s injuries
D’s is usually liable if injury could have possibly resulted even without the intervening forces.
Eggshell plaintiff rule-define
D takes P as he finds him
D is liable for the full extent of P’s injuries foreseeable or non-forseeable
- Regardless of whether injuries are forseeable.
Negligence Damages - Generally
P must prove damages
Damages are NOT PRESUMED in Negligence
Nominal damages are not available.
Negligence Damages-types
Personal Injury: D must compensate P for all damages (past, present and prospective damages).
- Economic and non-economic damages are recoverable.
Property Damage:
-
Full cost of Repair
- >> If Irreparable -> full market value <strong><em>at the time of accident</em></strong>
<strong><em></em></strong>
Punitive -
- ONLY IF D’s conduct is
- Wanton and Willful; or
- Reckless; or
- Malicious
Negligence: Damages-non-recoverable
P can never recover Damages in Negligence Action for:
- Interest from the date of damage in personal injury cases
- Attorney’s fees.
Negligence: Damages-Duty to mitigate
P has a duty to take reasonable steps to mitigate damages.
Negligence: Comparative Negligence (Comparative Fault)
D can establish that P’s injuries are at least partially the result of P’s own negligence. Court apportions fault between P and D and reduces P’s recoverable damages accordingly
Partial or Modified Comparative negligence- P can only recover damages if he was less than 50% at fault.
Pure Comparative negligence- P can recover damages even if he was more than 50% at fault
Note: defenses vary by state MBE questions usually note what defense applies: otherwise assume pure comparative negligence
Negligence: Contributory Negligence (and Last Clear Chance Defense)
Contributory Negligence: P is barred from recovery if D establishes that P’s negligence contributed to injuries.
Last clear chance of defense- P can rebut D’s contributory negligence claim by alleging D had the last clear chance to avoid the injury that caused the accident.
Negligence: Assumption of risk
D can deny P’s recovery by establishing that P assumed the risk of damage caused by D’s act.
Requirements: D must show:
- P KnewOR P Should Have Known objective standard the RISK
-
P voluntarily proceeded in the face of that risk.
- P can counter > there was no reasonable alternative to avoid injury
Negligent Infliction of Emotional Distress
P may recover for emotional distress resulting from D’s negligence >>>> only if emotional distress = some physical manifestation.
Negligent Infliction of Emotional Distress-elements:
D’s negligence results in a close risk of bodily harm to P.
- P must be in “zone of danger” to recover,
- D’s act must have early caused physical harm to P.
D’s negligence results in P’s severe emotional distress
P exhibits some physical manifestation attributable to his emotional distress (heart attack, miscarriage)
- Symptoms of physical manifestations can be instantaneous or appear days later.
- Insufficient: Nonphysical symptoms like depression or nightmares
Negligent Infliction of Emotional Distress- bystander claims
bystanders may be able to recover for emotional distress resulting from D’s negligence.
P must be
- Closely related to injured person
- Present when injury occurred
D Must
- knew p was closely related and present
- know that injured person was closely related to P
3rd Person must
- be seriously injured or killed
Strict Liability:
Strict liability is limited to cases involving
P can establish D’s liability for P’s injuries without proving D acted negligently. No amount of due care will relieve D of liability under strict liability.
Strict liability is limited to cases involving
- Product liability,
- animal conduct,
- ultrahazardous and/or abnormally dangerous conditions.
Nature of D’s activity imposes absolute duty to make safe
Causation- actual and proximate cause (dangerous aspect of D’s activity caused P’s injury)
Damages - to P’s person or property
Strict Liability: Prima Facie Case- Defenses
assumption of risk
comparative negligence
Strict Liability: Abnormally Dangerous Conditions - Elements
Abnormally Dangerous or ultrahazardous activities or conditions Give rise to STRICT LIABILITY for ANY RESULTING INJURIES
___________
Requirements for proving abnormally dangerous condition or activity:
- Severe Risk of Harm to persons or property
- Cannot be made safe can’t be performed w/o serious risk of harm; it will never be safe
-
Uncommon in the Community
- Look for explosive toxic and/or biohazard materials
-
Injury MUST RESULT from ABNORMALY DANGEROUS ACTIVITY
- Watch for fact patterns where abnormally dangerous conditions exist but do not cause P’s injury.
- Example truck carrying toxic wast in sealed containers which fall and crash into P’s car but do not spill. No strict liability b/c the abnormally dangerous nature of the containers did not cause P’s injury
Strict Liability: Animal Conduct-Property Damage
Animal owners are strictly liable for reasonable, foreseeable, damage resulting from their animal’s trespass on another’s property.
Wild Animals- have DANGEROUS PROPENSITY
- Strict Liability owed
- to licensees and invitees
- for unprovoked injuries
- caused by their wild animals any non-natural thing that escapes their property and harms neighbor
Domestic animals- no strict liability unless owners know of their animal’s unusually dangerous propensities (dog previously bit). Trespassers cannot recover.
Merchant duties and definition
Merchant = one who routinely deals in the product sold, including any merchant in the stream of commerce (manufacturer rep, distributors, suppliers)
- Casual sellers, service providers are not merchants.
STRICT DUTY to supply SAFE Goods
Merchants (must be Merchant) May DISCLAIM Warranties of Merchantibility w/ specific mention of the “merchantability” or any language that would be reasonably understood by a buyer to exclude that warranty.
Product Liability: Strict Liability- Elements
Elements of Strict Liability
- D is a MERCHANT
-
Defective Product:
- Defect must make product unreasonably dangerous.
- Product Unaltered > since leaving D’s control
- Product Used BY P in a Foreseeable Manner.
- P’s misuse of the product can be foreseeable
Who can SUE - foreseeable users or bystanders. (buyers, guests, family)
DAMAGES
- P MUST BE INJURED (Physical or Property)
- P CANNOT sue solely for ECONOMIC Damages.
Product Liability: Types of product defects:
Manufacturing defect
Design defect
Inadequate warning
Unavoidably unsafe product
Product Liability: Manufacturing Defects
Product departs from intended design …. causing it to be more dangerous than designed.
P must show that the product failed to perform as safely as an ordinary consumer would expect
Product Liability: Design Defect
Product creates an unreasonable risk of danger due to its faulty design.
P must show that a hypothetical alternative design exists… that is safer … but has a comparable cost and purpose
Product Liability: Inadequate Warning
Manufacturer failed to adequately warn of a non-obvious risk associated with a product’s use.
Manufacturer has a duty to warn of foreseeable dangers from misuse of the product.
P must show that the product has risks …. that cannot be eliminated by redesign… and consumers would not ordinarily notice.
Product Liability: Unavoidably unsafe products
If product cannot be made safe for its ordinary use <u>(chain saws, fire arms) </u>……
….Manufacture must give:
- Proper instructions for use
- Adequate warnings of known dangers
D not liable for unforeseeable<strong> </strong>at the time the product was marketed risks
Product Liability: Negligence Theory vs. strict liability theory
P may establish liability for a product defect under standard negligence theory
note a product defect is almost always easier to establish under a strict liability theory.
Product Liability: Negligence Theory- elements:
Duty of Care- each merchant in the stream of commerce owes a duty to all foreseeable product users and bystanders.
Breach of duty- D’s negligence leads to the supplying of a defective product
- retailers and wholesalers satisfy due care by a cursory inspection of the product ( makes it difficult to hold accountable)
Causation: P must show actual and proximate cause.
- Note: an intermediary’s negligent failure to discover defect does not absolve upstream merchant of liability.
Damages: P must show physical injury or property damage- economic loss alone is not recoverable
Defenses- all standard negligence defenses are available.
Product Liability: Implied Warranties
Implied in every sale of goods …. is a warranty of merchantability and warranty of fitness for a particular purpose.
Product Liability: Implied Warranties- merchantability
Merchantability- seller warrants that goods are of average acceptable quality (without defects) and generally fit for their ordinary purpose
Product Liability: Implied Warranties- fitness for purpose
Requirements:
- seller knows or has reason to know the particular purpose for which buyer is purchasing
- buyer relies on seller’s skills or judgement
- seller implies that goods are fit for that purpose ( shoe salesman- running show- expertise)
Product Liability: Implied Warranties- who can sue
who can sue- all reasonable foreseeable users can sue for personal injuries arising from a breach of an implied warranty
Product Liability: Implied Warranties- Defenses
Defenses:
assumption of risk
contributory
comparative negligence
Product Liability: based on Representation
D may be liable if a product falls short of an affirmative representation made to buyer
Product Liability: based on Representation- elements
same as implied.
- Warranty-existence of an implied warranty
- Breach- product fails to live up to applicable warranty
- Causation- actual and proximate
- damages- personal, property and economic are all recoverable.
Product Liability: based on Representation-defenses
Defenses:
- assumption of risk
- contributory
- comparative negligence.
Product Liability: misrepresentation of fact
seller liable for any misrepresentation made in the course of a sale if:
- Seller made misrepresentation regarding a material fact concerning the quality or use of the goods
- Seller intended to induce reliance by buyer
- The misrepresentation induced justifiable reliance by P.
No assumption of risk.
- Contributory negligence available if misrepresentation was negligent, not intentional.
Nuisance define
Tortious invasion of either public or private property rights.
Note- Nuisance is a harm caused by tort, not a tort itself.
Nuisance- Private
a substantial, unreasonable interference with another individual’s use or enjoyment of his/herproperty.
Substantial interference- must be offensive, annoying or inconvenient to the average person in the community.
- Interference is not substantial if P is hypersensitive or using property for a specialized, abnormal purpose.
Unreasonable interference-severity of P’s injury must outweigh the utility of D’s conduct
Nuisance-Public
Unreasonable interference with health, safety or property rights of the community at large.
Recovery is only available to a private party if she suffered unique damage not suffered by the public at large.
Government usually brings public nuisance suits
Nuisance - Remedies Available
money damages
injunctive relief
Defenses to Nuisance
P cannot recover if he came to the nuisance (bought property next door) for the sole purpose of bringing suit
Contributory negligence is available if
- P asserts a negligence theory
- and
- acted negligently in creating the nuisance
Negligent hiring
A claim made by an injured party against an employer based on the theory that the employer knew or should have known about the employee’s background which, if known, indicates a dangerous or untrustworthy character.
Pre-employment background checks, employee drug testing, and employment physical exams are some of the ways negligent hiring claims can be avoided.
Vicarious Liability and respondeat superior
Arises when D commits a tort against P and a 3rd person is held liable due to his relationship with D
- Employers are liable for torts committed by employees within the scope of their employment
Respondiat superior for intentional torts
intentional torts usually outside the scope unless:
- Job requires use of force (bouncers)
- job entails creating friction (bail bondsman)
- The intentional tort is done to further the employer’s goals (Physically breaking up fight in store)
Vicarious Liability-Independent Contractors
Employers are generally not liable for torts committed by independent contractors
except for acts that are inherently dangerous** or **duties that are nondelegable
Partnership vicarious liability - liability for other partner
each partner is vicariously liable for any other partner’s torts committed within the scope of the partnership
Vicarious Liability-Parent/child
Parents are not liable for their children’s torts, but parents may be separately negligent if they had reason to know of a child’s propensity to injure or facilitate the tort
Vicarious Liability-Tavernkeepers
Businesses serving alcohol may be held liable to a P injured by an intoxicated patron if the business was negligent in serving the patron
Dramshop Acts
Joint and several liability
arises if the acts of two or more Ds combine to produce a single indivisible injury. Each D is jointly and severally liable for the entire harm if his actions were a factor in bringing about P’s injury Satisfaction- if P recovers fully from one D, she may not recover more from a jointly liable D
D who pays more than her share of damages under joint and several liability can assert a claim against jointly liable parties for the excess paid. Not applicable to intentional tort liability Contribution is usually imposed in proportio to relative fault.
False light - Elements/Definition
False light:
- Publication of facts about P by D placing P in a false light in the public eye.
- The “false light” would be objectionable to a reasonable person; and
- If the matter is of public interest, D must have malice.
False light is defined as attributing to P views she does not hold or actions she did not take.
The right to privacy is personal. It does not extend to family members and is not assignable.
False light - Exempt Types of D and Defenses
Exempt Types of D
- The right to privacy is personal. It does not extend to family members and is not assignable.
- Corporations have no right to privacy.
Defenses:
Consent. Some states require consent be in writing. Acts may not exceed scope of consent. Mistake as to whether consent was given (which in fact it was not), even if reasonable, invalidates the defense.
Privileges: The privileges to defamation appear to apply to invasion of privacy as well.
Intentional Interference with Prospective Economic Advantage
Protects the probable“expectancy” interests of future contractual relations of a party, such as the prospect of obtaining employment or the opportunity to obtain customers
- Economic relationship between P and 3rd Party,
- Potential future benefit arising out of the relationship,
- D knew of the relationship,
- Action or Intent to commit acts designed to disrupt the relationship, and
- Damages caused by the Ds acts.
Note: modern decisions have expanded this to protect such non-commercial expectancies as interference with an expected gift or legacy under a will.
The tort of interference with prospective economic advantage protects the same interest in stable economic relationships as does the tort of interference with contract, though interference with prospective advantage does not require proof of a legally binding contract. The chief practical distinction between interference with contract and interference with prospective economic advantage is that a broader range of privilege to interfere is recognized when the relationship or economic advantage interfered with is only prospective.
