Themis Torts Flashcards
1
Q
Intentional Torts involving personal injury in General
A
- Tortious conduct—voluntary act/failure to act
- Requisite mental state—purposeful (or reckless for IIED), or defendant (D) knows the
consequence is substantially certain - Causation—resulting harm legally (i.e., factually and proximately) caused by D’s conduct
* Second Restatement (R2d) elements: act, intent, causation
2
Q
Battery
A
- D intends to cause contact with plaintiff’s (P’s) person (or anything connected to P’s
person)
* Transferred intent applies
* Single-intent rule (majority rule)—D may be liable if D (i) intends to bring about the
contact; D need not intend (ii) that the contact is harmful or offensive
* Double-intent rule (minority rule)—D must (i) intend to bring about a contact, and
(ii) intend that the contact be harmful or offensive - D’s conduct causes such contact
* Indirect contact counts
* D’s conduct must be voluntary and affirmative - The contact causes bodily harm or is offensive to P
* Harmful: physical injury, illness, disease, impairment, death
* Offensive: reasonable-person standard (objective), or when D knows that the contact is
highly offensive to P’s sense of personal dignity
3
Q
Assault
A
D intends to cause P to anticipate imminent, harmful and offensive contact, and
D’s affirmative conduct causes P to anticipate such contact
1. Anticipated contact—no actual contact required; P must be aware of D’s acts; anticipated
contact must be harmful or offensive
* R2d uses “apprehend”
2. Imminence—threats of future harm or threats made by D who is physically too far away do
not usually satisfy this requirement
3. Intent—subject to transferred intent
4
Q
IIED
A
- Intent or recklessness
* D, by extreme and outrageous conduct, intentionally/recklessly causes P severe
emotional distress
* Transferred intent does not apply to IIED when D intended to commit a different
intentional tort (e.g., battery) against a different victim (instead governed by the
“bystander” rule for third-party victims)
* Transferred intent may apply to IIED if, instead of harming the intended person, D’s
extreme and outrageous conduct harms another - Extreme and outrageous conduct by D (beyond human decency, outrageous)
- Public figures/concerns (public figures must show falsity and actual malice; private P
cannot recover if issue was of public concern) - Emotional harm caused by harm to third party (distresses member of victim’s
immediate family—with or without resulting bodily injury—or other bystander resulting in
bodily injury) - Causation (factual-cause test)
- Damages—severe emotional distress (beyond reasonable person’s endurance or D knows
of P’s heightened sensitivity)
5
Q
False Imprisonment
A
- D intends to confine another within a limited area, D’s conduct causes P’s confinement
or D fails to release P from confinement despite a duty to do so, and P is conscious of
the confinement - Confinement—limited area or when P is compelled to move in a highly restricted way
(e.g., physical barriers or force, threats, invalid use of legal authority, duress, failure to
provide means of escape) - Length of confinement—immaterial except as to amount of damages
- Intent—purposeful act or knowing confinement is substantially certain to result
- Damages—majority: actual damages unnecessary, P can recover nominal and possible
punitive damages; minority: actual damages necessary only if P was unaware of
confinement
6
Q
Defenses to Intentional Torts involving Personal Injury
A
Consent
Self-Defense
Defense of third persons
Defense of property
Discipline or control of minor child
protect individuals from self-harm (mentally impairment)
Privilege of arrest and other crime-related conduct
Merchant’s privilege
7
Q
Consent
A
Consent—D not liable if P gave legally effective consent (i.e., actual, apparent, or presumed,
or there was an emergency)
1. Actual (express)—P is willing for the conduct to occur; revoked by clear communication
2. Apparent—D reasonably believes that P actually consents
3. Presumed (implied)—D is justified based on prevailing social norms or D has no reason to
believe P would not actually consent if D had requested consent
4. Emergency—usually medical, purpose of conduct is to prevent/reduce risk to P’s
life/health
* Third Restatement (R3d) uses actual and presumed consent; R2d.uses express and
implied consent
8
Q
Self-Defense
A
Self-defense—D must reasonably believe that the force is (i) necessary and (ii) proportionate
to the force P is intentionally inflicting
1. Defensive purpose—D’s force must be defensive, but defense need not be D’s sole
motive for force
2. Nondeadly force—D reasonably believes that (i) P’s force is intentional and unprivileged,
(ii) D’s force is proportional, and (iii) D can prevent P’s force/threat only by immediate force
3. Deadly force—D reasonably believes that (i) P’s force is intentional and unprivileged, (ii) D
is at risk for death/serious bodily harm/rape, and (iii) D can prevail only by immediate use of
deadly force
4. No duty to retreat (majority)—before using force, including deadly force, in defense
5. Withdrawal—if P withdraws, D no longer has privilege to use force
6. Initial aggressors—generally not entitled to claim self-defense
7. Not liable for injuries to bystanders—D may use nondeadly force against a bystander if
(i) the force P is using against D is substantially greater than the force D uses against the
bystander, and (ii) D’s use of force against the bystander is immediately necessary
9
Q
Defense of third persons
A
- Reasonable belief that defended party entitled to use force to defend self
- Immediately necessary
10
Q
Defense of property
A
- D privileged to act to prevent P’s imminent intrusion if:
* P’s intrusion is not privileged;
* D reasonably believes that P is intruding/about to intrude and D can prevent it by
means used;
* D asks P to stop or such request would be useless/dangerous;
* Means used are reasonably proportionate to value of interest protecting; and
* Means used are not intended to/likely to cause death/serious bodily injury - No deadly force allowed—including deadly traps
- No force allowed to reclaim real or personal property wrongfully taken—must use
legal action (e.g., eviction); personal property subject to “fresh pursuit” exception
11
Q
Disciple or control of minor child
A
- Parents—reasonable force/confinement ok considering child’s age and gravity of behavior;
privilege may extend to one acting in loco parentis - Educators—reasonably force ok to maintain order/safety
12
Q
Protect individuals from self-ham (mentally impairment)
A
D may use force against
another if (i) D reasonably believes it necessary to protect that person from death/serious bodily
harm and (ii) that person does not understand nature/consequences of her actions
13
Q
Privilege of arrest and other crime-related conduct
A
private actor
law enforcement officials
use of force
14
Q
Private Actor
A
- Felony arrest—ok if crime was actually committed and reasonable to suspect the
person arrested committed it - Misdemeanor arrest—majority rule: only if committed in presence of arresting party
and if breach of peace; R3d: only if misdemeanor creates a substantial risk of bodily
harm and private actor reasonably believes police will not be able to prevent/terminate
crime - Assisting police—ok if private actor reasonably believes police need help and police
conduct is/could be privileged - Intervenor—force ok against an intervenor intentionally impeding actor’s privileged
conduct/aiding arrestee to resist/escape
15
Q
Law enforcement officials
A
Privileged to use force/threat/confinement to (i) arrest, (ii)
investigate/terminate/prevent crime, or (iii) enforce the law; off-duty officer is a private
actor
16
Q
Use of force
A
private actor/police can only use force if (i) reasonably necessary and
proportionate, (ii) for a legitimate purpose, (iii) in the context of arrest, intent to arrest is
communicated prior to force (unless communication would be useless)
17
Q
Merchant’s privilege
A
seller of goods/services privileged to use force for the purpose of (i)
investigating potential theft, (ii) recapturing personal property, or (iii) facilitating arrest
1. Merchant must reasonably believe that the other has taken merchandise or failed to pay
for purchase
2. Merchant’s use of force must be (i) on or immediately near merchant’s premises, (ii)
reasonable, and (iii) of reasonable duration; deadly force not ok
18
Q
Trespass to chattels (tangible personal property)
A
- Intentional interference with P’s right of possession by either—
* Dispossessing or
* Using or intermeddling with P’s chattel - Only intent to do the act is necessary—transferred intent applies
- Mistake of law or fact—not a defense
- Damages—actual, loss of use, and nominal damages; no loss of use damages without
dispossession; compensation for diminished value or cost of repair
19
Q
Conversion
A
- Intentional act
* Must only intend to commit the act that interferes (intent to damage not necessary)
* Mistake not a defense
* Transferred intent does not apply; must intend to control the particular chattel - Interference with P’s right of possession (exercising dominion or control)
- So serious (based on duration/extent, intent to assert a right, D’s good faith, extent of
harm and P’s inconvenience) that it deprives P of the use of the chattel - Damages (full value of property or replevin)
20
Q
Trespass to Land
A
- Intent to enter land or cause physical invasion, not to trespass; transferred intent applies
- Physical invasion of property
- Proper P—anyone in actual or constructive possession of land
- Necessity as defense to trespass
* Private—qualified privilege for limited number of people to enter or remain on land to
protect own person/property from serious harm; not liable for trespass but responsible
for actual damages
* Public—unqualified/absolute privilege to avert imminent public disaster; not liable
for damage if actions reasonable or reasonable belief that necessity existed, even if
initial entry not necessary
21
Q
Private Nuisance
A
Private—substantial and unreasonable interference with another’s use or enjoyment of his
land
* Proper P—anyone with possessory rights in real property or members of that
household
* Interference must be intentional, negligent, reckless, or result of abnormally dangerous
conduct
* Substantial—offensive to average reasonable person in the community (objective)
* Unreasonable—effectively renders the land unavailable for ordinary use, is a per se
nuisance, does not comport with customs/expectations, results from failure to use
reasonable care, causes physical damage to land/fixtures, or is motivated by malice
* Defenses to private nuisance
o Regulatory compliance—incomplete defense; admissible but not determinative
o Coming to the nuisance—does not entitle D to judgment as a matter of law but jury
may consider
* Failure to abate natural condition—D liable when the natural condition creates risk of
harm, risk is known/obvious, D fails to take steps to address risk, and the natural
condition causes substantial and unreasonable interference with P’s land
22
Q
Public nuisance
A
Public—unreasonable interference with a right common to the general public; defenses in
private nuisance generally applicable
* Proper P—private citizen suffering harm different in kind from general public
23
Q
Remedies to nuisance
A
Remedies—damages; injunctive relief (balance the equities)
24
Q
Abatement of Nuisance
A
- Private—Reasonable force permitted to abate; must give D notice of the nuisance and
D refuses to act - Public—Absent unique injury, public nuisance may be abated only by public authority
25
Negligence
Negligence—failure to exercise care a reasonable person would exercise; breach of the duty to
prevent foreseeable risk of harm to anyone in P’s position; breach must be the cause of P’s injuries
A. Elements
1. Duty (obligation to protect another against unreasonable risk of injury)
2. Breach (failure to meet that obligation)
3. Causation (close causal connection between action and injury)
4. Damages (harm suffered)
26
Negligence - Duty
Duty—owed to all foreseeable persons who may be injured by D’s failure to meet reasonable
standard of care; foreseeability of harm to another sufficient to create general duty to act with
reasonable care
27
Duty - Failure to Act
Generally no duty to act
28
Foreseeability of harm to P
Cardozo - D only liable to Ps within the zone of foreseeable harm (Palsgraf majority rule)
Andrews - if D can foresee harm to anyone resulyting from his negligence, D owed duty to everyone harmed (foreseeable or not) (minority rule)
29
Duty - Special foreseeable Ps
Rescuers - D liable for negligently putting rescuer/rescued party in danger
- can apply comparative respnosibility if rescuer's efforts are unreasonable
- Emergency professionals barred from recovery if injury resutls from risk of the job (firefighters rule)
Fetuses - duty of care owed to fetuses vialbe at time of injury
30
Affirmative duty to act
exceptions to general rule that there is no duty to act
* Assumption of duty
* Placing another in peril
* By contract
* By authority
* By relationship (e.g., employer-employee, parent-child, common carrier-passenger)
* By statute imposing an obligation to act
31
Standard of Care - RP
objective standard
* Physical (not mental) characteristics are considered in determining reasonableness
* Defendant who possesses special skills or knowledge must exercise her superior
competence with reasonable attention and care
* Voluntarily intoxicated person held to same standard as sober person
* Child—reasonable child of similar age, intelligence, and experience
o But child engaged in high-risk adult activity held to adult standard
o Children under age of five generally found incapable of negligent conduct
32
Standard of care for common carriers
(planes, trains, buses)—highest duty of care consistent with
practical operation of the business (majority)
33
SoC Innkeepers
Innkeepers—ordinary negligence (majority); “slight negligence” (common law)
34
SoC Automobile drivers
absent “guest statute” (minority—refrain from wanton & willful
misconduct), ordinary care to guests as well as passengers (majority)
35
SoC Bailor
o Gratuitous—duty to warn bailee of known dangerous defects
o Compensated—duty to warn bailee of defects that are known or should have been
known by the bailor had he used reasonable diligence
36
Bailee
o Gratuitous—liable only for gross negligence
o Compensated—must exercise extraordinary care
o Mutual benefit—must take reasonable care
37
Sellers of real property
Sellers of real property—duty to disclose known, concealed, unreasonably dangerous
conditions; liability to third parties continues until buyer has a reasonable opportunity to
discover and remedy defect
38
Standard for trespassers
Trespassers (traditional/majority approach)—refrain from willful, wanton, reckless or
intentional misconduct toward trespassers; no “spring-guns”
o Discovered—warn or protect against concealed, dangerous, artificial conditions
o Undiscovered—generally no duty unless owner should reasonably know that
trespassers are entering land, then same duty owed a licensee (majority)
o Attractive nuisance—liable for injuries to trespassing children if artificial condition
poses unreasonable risk of serious bodily injury, children cannot appreciate the
danger, burden of eliminating danger slight compared to risk of harm, and owner
fails to exercise reasonable care to protect children
39
Soc Invitee
(traditional approach/majority)—Invited to enter for purposes for which the
land is held open or for business purposes
o Reasonable care to inspect, discover dangerous conditions, and protect invitee from
them; nondelegable duty
o Duty does not extend beyond scope of the invitation
o Recreational land use (some jurisdictions)—possessor who opens land to public
for recreation generally not liable for injuries sustained by recreational land users
unless (i) charges a fee or (ii) acts willfully, maliciously, or with gross negligence
40
SoC Licensee
(traditional approach/majority)—enters land of another with permission or
privilege (social guest; emergency personnel)
o Warn of concealed dangers that are known or should be obvious
o Use reasonable care
41
SoC R3d Approach to property owners
o Reasonable care under all circumstances; no invitee/licensee distinction
o Fact of trespass considered by jury in determining reasonable care
o Duty not to act in intentional, willful, or wanton manner causing physical harm is only
duty owed to flagrant trespasser
42
SoC Landlord and tenants
o Landlord liable for injuries occurring in common areas resulting from hidden dangers
about which landlord fails to warn, on premises leased for public use, as a result of
a hazard caused by negligent repair, or involving a hazard landlord agreed to repair
o Tenant liable for injuries to third parties due to conditions within tenant’s control
43
SoC Off-premises victims
o No duty for harm by natural condition (except rotting trees in urban areas)
o Duty to prevent unreasonable risk of harm caused by artificial condition
44
SoC Sellers of real property
Duty to disclose any concealed and unreasonably dangerous conditions
45
Breach - Burden of Proof
(preponderance of the evidence)
* Greater probability than not that D failed to meet standard of care (as shown by
custom/usage, statutory violation, or res ipsa loquitur)
* Failure was proximate cause of injury and P suffered damages
46
Breach - Traditional approach
compare D’s conduct with what reasonably prudent person
would do under the circumstances (objective)
47
Breach - Modern and R2d approach
(cost-benefit analysis)—consider (i) foreseeable
likelihood that D’s conduct would cause harm,
48
Breach - Custom
Evidence of custom is generally admissible but not conclusive in establishing proper
standard of care
49
Breach - Professionals Custom
Professionals—expected to show same skill, knowledge, and care as an ordinary
practitioner in same community; specialists may be held to higher standard
o For professionals, deviation or compliance with custom is dispositive of breach
o An expert must generally establish the standard of care unless negligence is so
obvious that it would be apparent to a layperson (e.g., a surgeon amputating the
wrong leg)
50
Breach - Physicians
o Majority rule—national standard (including specialists)
o Minority (traditional) rule—same or similar locale standard
o Failure to comply with informed consent requirement is medical negligence
(malpractice) unless risk is commonly known, patient is unconscious, patient waives
or is incompetent, or disclosure too harmful
51
Breach - Negligence per se
* Elements
o Criminal or regulatory statute imposes a specific duty for protection of others
o D neglects to perform the duty
o D liable to anyone in the class of people intended to be protected by statute
o For harms of the type the statute was intended to protect against
* Causation—once the elements of negligence per se are established, D is liable for
injuries that were proximately caused by D’s violation
* Defenses
o Compliance impossible or more dangerous than noncompliance
o Violation reasonable under the circumstances
o Statutory vagueness or ambiguity
o Compliance with federal regulation preempts common-law tort action
52
Breach - Res Ipsa Loquitur
(circumstantial evidence; doesn’t change standard of care; establishes
an inference of negligence sufficient to avoid dismissal)
* P’s harm would not have occurred if D used ordinary care (no injury would typically
occur in absence of negligence); but P need not conclusively exclude all other possible
explanations
* P not responsible for injury (loosely applied in most comparative-fault jurisdictions)
* P’s injury under D’s exclusive control
o Modern trend favors generous interpretation of exclusivity
o Many courts ignore exclusivity for product liability if manufacturer wrapped the
package or it is clear that negligence took place during production
o If many medical personnel had access to P during surgery in malpractice claim,
some jurisdictions
53
Cause in fact/actual cause
but for D’s conduct, injury wouldn’t have occurred; most
courts require causal link; substantial-factor test for conduct of 2+ Ds or causes; if unclear,
burden shifts to multiple Ds to prove each did not cause P’s harm
* Joint and several liability—may apply if 2+ Ds are each a factual cause of indivisible
injury or Ds acted with common plan or design
* Loss of Chance—applies in some jurisdictions if P’s chance of recovery was <50%
before D’s conduct; can recover percentage of total damages equal to difference
between chance of recovery before and after D’s negligence
54
Proximate cause/scope of liability
* Limitation on liability
o Foreseeability—D liable for reasonably foreseeable consequences of a foreseeable
type (majority); D liable for all direct consequences (minority/Andrews test)
o Ps who can recover—P can recover if P was a foreseeable victim of D’s conduct
(majority) or P’s harm was within scope of liability of D’s conduct (minority)
o Eggshell-plaintiff rule—extent of damages need not be foreseeable
* Intervening and superseding causes
o Direct cause—uninterrupted chain of events from D’s act to P’s injury—
foreseeability of type of harm does not necessarily preclude liability (majority)
o Intervening cause—a cause of P’s harm that occurs after D’s tortious act
o Superseding cause—breaks the chain of proximate causation; D not liable;
unforeseeable intervening cause is a superseding cause (“Act of God;” criminal act;
intentional tort of third party); negligent intervening acts are foreseeable (medical
malpractice) and may lead to joint and several liability
55
Damages - Actual physical harm
must prove actual injury (bodily harm or property damage), not
just economic loss; nominal damages and attorney’s fees not permitted in negligence
actions
* Parasitic damage—if tort
56
Compensatory damages
make the victim whole
57
Duty to mitigate
not a duty to D, but may reduce P’s recovery
58
Pesronal injury
past/future pain and suffering, medical expenses, lost wages/reduced
future earnings; eggshell-plaintiff rule applies
59
Property damage
generally, difference between fair market value before injury and
immediately after; most courts allow cost of repair as alternative if cost of repair does not
exceed value of property, or cost of replacement for household items
60
Collateral source rule
* Traditional rule—benefits from outside sources (P’s insurance) not credited against
D’s liability; payment by D’s insurer are not from a collateral source and are credited
against D’s liability
* Modern trend—statutes have eliminated or substantially modified rule
61
Punitive Damages
—clear/convincing evidence, malicious, willful & wanton, or reckless
behavior; can include torts that inherently involve this state of mind or behavior; generally
cannot exceed single-digit ratio to compensatory damages
62
NIED
* Zone of danger
o P was within “zone of danger” (feared for safety); threat of physical impact caused
emotional distress
o Proof: Majority—emotional distress must be manifested by physical symptoms
(e.g., nightmares, shock, ulcers); minority—allow recovery without a physical
manifestation of harm
* Bystander recovery
o A P outside the zone of danger can recover if: (i) closely related to person injured by
D; (ii) present at the scene; and (iii) personally observed or perceived the injury
o Proof: Majority—requires physical symptoms (see above)
* Special relationship
o Most common examples are a mortician mishandling a corpse or a common carrier
mistakenly reporting the death of a relative—no threat of physical impact or physical
symptoms required
63
Pure economic loss
only recoverable with related personal injury or property damage
64
Wrongful death
recoverable damages include loss of support, companionship, society,
and affection, but not pain/suffering of P; recovery limited to what decedent could recover
65
Survival actions
Survival statute may permit representative of decedent’s estate to
pursue any claims decedent would have had at time of death; may include pain/suffering
* If survival and wrongful death actions permitted, no double recovery allowed
66
Loss arising from injury to family member
loss of consortium and society for
physical/emotional injury to spouse or child
67
Wrongful life
minority allows action by child for failure to perform contraceptive
procedure or diagnose congenital defect; damage limited to those attributable to disability
68
Wrongful birth
—if birth due to failed contraceptive procedure or diagnosis of defect, many
states permit parents to recover medical expenses for caring for disabled child; some
states allow mother to recover pain/suffering damages and medical expenses for labor
69
Vicarious - Employer's liability for employee;s torts
* Occurs when employer has a right to control the means and methods of employee
(otherwise, see IC)
* Tort within scope of employment (acts employee is employed to do or acts intended
to profit or benefit employer); not liable for intentional torts unless (i) force inherent to
job (e.g., bouncer), (ii) employee motivated to benefit employer, or (iii) authorized to
act/speak for employer and position provided opportunity for the tort (e.g., fraudulent
contract as employer’s agent)
* Employer may be liable for detour (minor deviation from scope) but not frolic
(unauthorized and substantial deviation)
* Direct liability—negligent hiring, training, supervision, or otherwise controlling an
employee is employer’s negligence (not vicarious liability)
70
Vicarious - Independent Contractors
employers generally not liable for IC’s torts, except for:
* Vicarious liability for retention of control
* Vicarious liability for abnormally/inherently dangerous activity or nondelegable duty
* Vicarious liability for IC acting under apparent agency
* Direct liability for negligent selection of independent contractor
71
Vicarious - Business partners; joint enterprise participants
—liable for tortious conduct of each
other if committed within scope of business purposes
72
Vicarious - Car owners
* Negligent entrustment of car or other object with potential for harm (if D knows/should
know of driver’s or user’s negligent propensities)
* Family-purpose doctrine (D liable for family members driving with permission) versus
owner liability statutes (liable for anyone driving with permission)
73
Vicarious - parent/child
vicarious liability only if child acted as parent’s agent, state statute applies,
or if assumed liability on child’s driver’s license application for negligent driving
* Primarily negligent if fails to exercise reasonable care to prevent minor child from
intentionally or negligently harming third party if parent (i) can control child and
(ii) knows or should know the necessity and opportunity for exercising such control
74
Vicarious - Dram-shop liability
—many states recognize cause of action against seller of intoxicating
beverages when a third party is subsequently injured due to buyer’s intoxication; most
states only allow liability if buyer was minor or intoxicated at time of sale; many states
extend to social hosts for injuries to intoxicated guest and/or third parties
75
Immunities - Government
1. Government
* Federal—traditionally immune, but now immunity is limited by FTCA
o Sovereign immunity not waived for enumerated torts, discretionary functions, gov’t
contractor product liability (unless failed to warn or conform with gov’t
specifications), and most traditional gov’t activities
o Immunity waived for intentional torts committed by law enforcement officers
* State—most states have waived sovereign immunity, at least partially, but acts vary
o Municipalities/local gov’t agencies—usually governed by state tort claims acts;
immunity traditionally attached only to governmental functions
o Public-duty rule—no liability to any one citizen for municipality’s failure to fulfill a
duty that owed to public at large, unless special relationship creates special duty
2. Government officials—immunity applies if is performing discretionary functions
entrusted by law unless acts with malice or improper purpose; no tort immunity for carrying
out ministerial acts
* Absolute immunity from personal liability—legislators performing their legislative
functions, judges performing their judicial functions, prosecutors
76
Umminity - Intra-family
—interspousal immunity extinguished in most states; parent-child immunity
generally limited to core parenting activities
77
Immunity - Sharing liability among multiple Ds
1. Joint & several liability—(default for MBE) each D found liable for single indivisible harm
liable for the entire harm
2. Pure several liability—each D liable only for his proportionate share
3. Satisfaction & release—no double recovery
4. Contribution—tortfeasor who paid more than fair share of common liability generally can
recover excess of fair share from joint tortfeasor; can recover no more than the joint
tortfeasor would be liable to P for; not generally available for intentional tortfeasors
5. Indemnification—shifting of loss from vicariously liable tortfeasor to primarily responsible
party; may be based on agreement, equity, subsequent additional harm, or strict product
liability
78
Defenses to negligence
Contributory fault
Comparative fault
Assumption of the risk
79
Contributory fault
* P’s fault is complete bar to recovery (common law/traditional rule)
* Not a defense to an intentional tort, gross negligence, or recklessness
* Last clear chance rule—abolished in most jurisdictions; P may mitigate legal effect of
own fault if D had last clear chance to avoid injuring P; D’s actual knowledge of P’s
inattention required for liability to inattentive P; D liable to helpless P if knew or should
have known of P’s helpless peril
80
Comparative fault
* Pure—not a complete bar to recovery; P’s damages reduced by proportion that P’s
fault bears to total harm
* Partial
o If P is less at fault than Ds combined, P’s recovery reduced by percentage of fault
o If P is more at fault than Ds combined, P recovers nothing
o If P and D are equally at fault, P recovers 50% of his total damages (in minority
jurisdictions P recovers nothing if equally at fault)
* Comparative fault will not reduce P’s recovery for intentional torts
81
Assumption of the risk (A/R)
* Traditionally—unreasonably proceeding in face of known, specific risk affects
recovery
* Contributory-negligence jurisdiction—no recovery
* Comparative-fault jurisdiction—merely reduces recovery
* Exculpatory clauses in contracts—unenforceable if (i) disclaims liability for reckless
or wanton misconduct or gross negligence;(ii) gross disparity of bargaining power
(iii) exculpated party offers services of great importance or practical necessity to public;
(iv) subject to typical contractual defenses; or (v) against public policy
o Generally, common carriers, innkeepers, and employers cannot disclaim liability for
negligence
82
Strict Liability Elements
DAD (Dangerous activities, Animals, and Defective/dangerous products)
A. Elements
1. Absolute duty to make P’s person or property safe
2. Actual & proximate causation
3. Damages
83
Strict Liability - abnormally dangerous activities
1. Not commonly engaged in; inherent, foreseeable, and highly significant risk of harm (look
to gravity of harm, inappropriateness of place, limited value of activity)
2. S/L limited to harm expected from activity
84
Strict liability - Animals
1. Wild animals—R2d includes all animals not by custom devoted to the service of
humankind where it is being kept; R3d excludes animals that pose no obvious risk of
causing substantial personal injury
* Owner/possessor is S/L for harm done by wild animal despite owner’s precautions to
prevent harm, as long as harm arises from dangerous propensity characteristic of
animal or about which owner has reason to know
* Owner/possessor S/L for injuries caused by P’s fearful reaction to unrestrained wild
animal
2. Abnormally dangerous animals
* Owner/possessor S/L for injuries if knows or has reason to know of dangerous
propensities abnormal for the animal’s category or species and harm results
* Owner/possessor S/L for reasonably foreseeable damage caused by trespassing
household pets if owner knows or has reason to know that the pet is intruding on
another’s property in a way that has a tendency to cause substantial harm; general
negligence standard applies if pet strays onto a public road and contributes to an
accident there
3. Trespassing animals—owner/possessor S/L for reasonably foreseeable damage caused
by trespassing animal
85
Defenses to Strict Liability
1. Contributory negligence not a defense in contributory-negligence jurisdictions—does not
bar recovery
2. Comparative-fault jurisdictions—negligence may reduce P’s recovery under a S/L claim
(R3d approach); courts divided, some do not allow reduction
3. Assumption of Risk/Knowing contributory negligence—bars recovery
4. Statutory privilege—no S/L for D performing essential public services
5. Trespassers—property possessor not S/L for injuries inflicted by his animals against a
trespasser, except, in some jurisdictions, for injuries inflicted by a vicious watchdog
86
Products Liability - Negligence
1. Duty—reasonable care owed to any foreseeable P by commercial manufacturer,
distributor, retailer, or seller
2. Breach—failure to exercise reasonable care in inspection/sale of product (i.e., defect
would have been discovered if D was not negligent)
3. Causation—factual & proximate
4. Damages—actual injury/property damage, not pure economic loss
5. Defenses—contributory/comparative negligence and A/R
87
Strict Products Liability - Elements
* Product was defective (in manufacture, design, or failure to warn)
* Defect existed when it left D’s control
* Defect caused P’s injury when the product was used in a reasonably foreseeable way
88
Strict Products Liability - Defective product
(res ipsa may apply)
* Manufacturing defect—product does not conform to D’s own specifications
* Design defect
o Consumer expectation test—dangerous beyond expectation of ordinary consumer
o Risk-utility test—risks > benefits and reasonable alternative design (economically
feasible) available; failure to use that design rendered product unreasonably unsafe
* Failure-to-warn defect
o (i) Foreseeable risk of harm, (ii) not obvious to ordinary user of product, and
(iii) risks could have been reduced or avoided with reasonable instructions or
warnings
o Learned-intermediary rule—manufacturer of prescription drug or medical device
typically satisfies duty to warn by warning prescribing physician of problems with the
drug/device, unless (i) manufacturer knows drug/device will be dispensed without
personal intervention or evaluation of a healthcare provider, or (ii) in the case of
birth control pills
89
Strict Product Liability - Plaintiff
Plaintiff—not required to be in privity of contract; anyone foreseeably injured may recover
90
Strict Product Liability - Defendants
must be in the business of selling (includes manufacturer, distributor, and
retail seller)
* If D provides both products and services, generally liable if product is consumed, not if
product is only used (i.e., hospital not generally liable as a distributor of defective
implants)
* Casual sellers, auctioneers, P’s employer, and service providers generally not S/L
* Retail distributors of a prescription drug/device may be liable for own negligence, but
only S/L for manufacturing defects
91
Strict Product Liability - Damages
Damages—personal injury or property damage, pure economic loss must be brought
under warranty action
* “Market share” liability—for fungible defective products produced by multiple
manufacturers, jury can apportion damages based on manufacturer’s market share
92
Strict Product Liability - Defenses
* Comparative fault—P’s negligence reduces recovery as will A/R (majority)
* Contributory negligence—P’s negligence not a defense if P misused product in
reasonably foreseeable way or negligently failed to discover defect
* A/R—complete bar to recovery in contributory-negligence jurisdictions; in most
comparative-fault jurisdictions A/R only reduces recovery
* Unforeseeable misuse, alteration, or modification by the user precludes (most
contributory-negligence states) or reduces (most comparative-fault states) recovery
* Compliance with governmental safety standards—not conclusive evidence that
product is not defective, but may be considered
* State-of-the-art standard—product conforms with level of scientific, technological,
safety knowledge existing and reasonably feasible when product was distributed;
compliance with state-of-the-art standard will only bar recovery in some states; n/a to
manufacturing defect claims
* Statute of limitations—begins to run against P with personal injury when P discovers,
or should discover with reasonable care, his injury and its connection to the product
* Unforeseeable intervening causes
93
Implied Warranties
* Merchantability—product is generally acceptable and reasonably fit for ordinary
purpose
* Fitness—product fit for particular purpose; seller must know purpose and buyer must
rely on seller’s skill or judgment in supplying product
* Privity requirements
o Alternative A (majority)—allows a member of the buyer’s family/household to
recover for personal injury (not property damage or pure economic loss)
o Alternative B—anyone reasonably expected to use, consume, or be affected by the
product may recover for personal injury only
o Alternative C—Alternative B + recovery for property damage and economic loss
* Damages—personal injury; property damage; pure economic loss
94
Express warranties
* Affirmation of fact or a promise about product; part of the basis of bargain
* Seller liable for any breach of express warranty, regardless of fault
95
Defenses to Warranties
* Disclaimers
o Consumer goods—limitation of consequential damages for personal injury is
unconscionable
o Express warranties—valid only if consistent with warranty (usually not)
* Comparative fault and A/R—same as in S/L claims
* Contributory negligence—not a bar except when it overlaps A/R
* Misuse—prevents recovery under the implied warranty of merchantability when the
product is warranted to be fit for ordinary purposes (majority)
* Claim generally fails if P fails to provide seller with notice of breach of warranty within
the statutorily required time period or “a reasonable period of time”
96
Defamation Elements
* Defamatory language—diminishing respect, esteem, or goodwill toward P
* Of or concerning P—reasonable third party believes language refers to particular P
* Publication—intentional or negligent communication to third party who understands
defamatory nature; republication identifying original speaker and uncertainty as to
accuracy of the statement still may satisfy this element
* Falsity (public concern)
o If statement relates to matter of public concern or P is a public figure, P must
prove defamatory statement is false
o Private P suing on a statement that does not involve matter of public concern not
required to prove falsity; D may prove truth as an affirmative defense
* Fault
o Public figure—actual malice (D knows of falsity/reckless disregard of truth)
o Private figure/matter of public concern—D acted with fault; either negligence or
actual malice
o Private figure/not matter of public concern—at least negligence
97
Defamation - Libel/slander distinguished
* Libel—written, printed, or otherwise recorded in permanent form; general damages
that compensate P for harm to reputation (generally includes radio and television)
o Common law allowed recovery for presumed damages
o Libel per quod—if defamatory statement requires proof of extrinsic facts to show it is
defamatory, P must prove either special damages or a category of slander per se
* Slander—spoken word, gesture, or any form other than libel; special damages or
slander per se required; third party heard comments and acted adversely to P; usually,
but not always, economic loss
* Slander per se—no special damages required if accused of committing a crime,
conduct that reflects poorly on P’s fitness to conduct trade or profession, loathsome
disease, sexual misconduct; general damages then permitted as parasitic damages
98
Libel/slander - constitutional limit son damages
* Private person/matter of public concern—actual malice required for punitive or
presumed damages
* Private person/not public concern— actual malice not required for punitive or
presumed damages
99
Libel/Slander Defenses
* Truth
* Consent—cannot exceed scope
* Absolute privilege—for remarks: (i) during judicial/legislative proceedings (generally
must be made by participants and related to proceedings); (ii) by legislators or
federal/state executive officials in course of official duties; (iii) between spouses; or
(iv) in required publications
* Qualified privilege—affecting important public interest, in the interest of D or third
party; privilege is lost if abused; burden on D to prove privilege exists; burden on P to
prove privilege abused and lost
100
Invasion of Privacy
I FLAP (Intrusion, False Light, Appropriation, Private facts)
1. Applies only to individuals, terminates upon death
* Intrusion upon seclusion—D’s intentional intrusion into P’s private affairs, highly
offensive to a reasonable person (no publication required)
* False light—publication of facts about P or attributing views/actions to P that place him
in false light objectionable to a reasonable person under circumstances; truth not
always a defense; in matters of public interest, P must show malice
* Misappropriation—unauthorized use of P’s picture or name for D’s advantage; lack of
consent; injury (some states allow action to survive death)
* Public disclosure of private facts—public disclosure of private facts (even if true)
about P that would be highly offensive to a reasonable person and is not of legitimate
concern to the public; in tension with First Amendment—disfavored tort
2. Damages—proof of emotional/mental distress enough, special damages not required
3. Defenses—absolute/qualified privilege for false light/public disclosure; consent applies to
all types of privacy torts, but any mistake re: consent negates defense; truth not a defense
101
Intentional misrepresentation
1. False representation of material fact, opinion, intention, or law—generally no duty to
disclose
2. Scienter—knowledge or reckless disregard of truth
3. Intent to induce P to act or refrain in reliance on misrepresentation
4. Causation—actual reliance
5. Justifiable reliance—not justifiable if statement obviously false or lay opinion
6. Damages—actual economic loss/consequential damages and punitive damages; no
nominal damages; no damages for emotional distress
102
Negligent misrepresentation
1. D provides false information to P as a result of D’s negligence in the course of D’s
business or profession, and
2. P justifiably relies on the information and incurs pecuniary damages as a result
* P must be a member of a limited group for whose benefit the information is supplied
* Information must be relied on in a transaction that D intends to influence or knows
recipient intends to, or substantially similar transaction
3. Defenses—standard negligence defenses
4. Damages—reliance and consequential
103
Intentional interference with Contract
* D knew of valid contractual relationship between P and third party
* D intentionally interfered with contract in a way that substantially exceeds fair
competition and free expression, resulting in a breach and
* Breach caused damages to P
* Defenses—justified if motivated by health, safety, or morals; contract is terminable at
will; D is business competitor
104
Interference with prospective economic advantage
(no contract)
* More egregious conduct required for liability, should be independently tortious; violates
federal or state law; improper conduct per balancing analysis
* Business competitor will not be liable for encouraging switching business
105
Theft of trade secrets
* P owns valid trade secret (provides a business advantage)
* Not generally known
* Reasonable precautions to protect
* D took secret by improper means
106
Injurious Falsehoods
1. Trade libel—malicious publication of derogatory statement relating to P’s title to business
property/quality of products, and interference or damage to business relationships; proof of
special damages required and mental suffering damages unavailable; truth and fair
competition are valid defenses
2. Slander of title—publication of false statement derogatory to P’s title to real property;
malice; special damages as a result of diminished value in the eyes of third parties
107
Malicious prosecution
—intentional & malicious institution of legal proceeding for improper
purpose; no probable cause; action dismissed in favor of the person against whom it was
brought
* Damages can include legal expenses, lost work time, loss of reputation, emotional
distress
* Judges and prosecutors have absolute immunity from liability
108
Abuse of Process
use of legal process against P in a wrongful manner to accomplish a
purpose other than that for which the process was intended; willful act; proof of damages
required
109
