Torts Flashcards
Overarching Theories of Tort Recovery
Intentional tort; negligence; strict liability
Types of Intentional Torts
battery, assault, IIED, trespass to land/chattel, conversion
Strict Liability Torts: Definition and 3 Types
D is liable for injuring P whether or not D exercised due care. P does not have to show proof of fault.
Types: Possession of animals w/ dangerous propensities; abnormally dangerous activities; supplying product in a defective condition unreasonably dangerous
Negligence Elements
Duty, breach, injury/harm/damages, causation (actual/proximate)
Intentional Torts –> Privileges/Defenses: Types
POPCANS - Privilege defense of Others defense of Property Consent Authority Necessity Self-Defense
Defenses: Negligence
Contributory negligence; comparative negligence; assumption of risk
Defenses: Strict Liability Torts
Comparative negligence; assumption of risk
5 Elements of Intentional Torts
Voluntary act; intent; causation; harm; lack of privilege/defense
Intentional Tort Element: Establishing Intent (2 ways)
Two ways to establish; either:
(1) D desires that his act will cause harmful result described by tort (purpose intent); or
(2) D knows that it is substantially certain that such result will occur (knowledge intent)
Intentional Torts Intent Element: Transferred Intent + Applicable Crimes
If D acts with necessary intent to inflict certain intent torts, but causes injury to a diff victim then intended, D’s intent is transferred to actual victim.
–> Applies to battery, assault, false imprisonment, TTL, and TTC
Intentional Tort –> Battery: Definition and 3 Elements; Defense
An intentional act that causes a harmful or offensive contact with the P or w/ something closely connected thereto (such as hat).
- -> AKA need to prove 3 elements:
(1) Intent
(2) Harmful or offensive contact; and
(3) To the person or something physically closely connected thereto - -> P does not have to prove injury; will get compensatory damages just by showing elements.
- -> Defense to battery: consent
Intentional Tort –> Battery: Intent Requirements
D must either act with purpose intent (desire to cause an immediate harmful/offensive contact) or knowledge intent (know that such contact is substantially certain to occur)
Intentional Tort –> Battery Req: Imm harm/off contact (2 scenarios)
Two scenarios fulfill req:
(1) Contact would inflict pain/impairment of any body function, or
(2) If a reasonable person would regard it as offensive.
–> P need not be aware of the contact.
Intentional Tort –> Assault: Definition and 3 Elements
An intentional act that causes the P to experience a reasonable apprehension of an immediate harmful or offensive contact; words alone rarely create assault.
AKA Need to Prove 3 Elements:
(1) Intent
- -> Desire to cause immediate harmful/offensive contact or know such a result substantially certain to result.
(2) Reasonable apprehension (objective standard)
- -> Reasonable person in same position as P would have experience same apprehension
- -> Does not matter if D lacked actual ability as long as P apprehension is reasonable
(3) Imminent battery
Intentional Tort –> False Imprisonment: Definition and 4 Elements
An intentional act that causes a P to be confined/restrained to a bounded area against the P’s will, and the P knows of the confinement or is injured thereby.
AKA 4 Elements:
(1) Intent
- -> purpose intent or knowledge intent
(2) Confinement in Bounded Area
- -> Can consist of physical barriers, threats of force, failing to release P after duty to release arises, invalid assertion of legal authority.
- -> No duration requirement.
- -> P cannot have actual knowledge of reasonable means of escape.
(3) Against P’s Will (consent is defense)
(4) Either P is aware of confinement or injured thereby
- -> If P aware, P entitled to any damages jury finds appropriate; if P unaware, P can only claim damages if injured by confinement.
Intentional Tort –> IIED: Definition and 3 Elements
An intentional/reckless act amounting to extreme and outrageous conduct that causes the P severe mental distress.
3 Elements:
(1) Intentional or Recklessness
(2) Extreme and Outrageous Conduct
(3) Severe Emotional Distress
Intentional Tort –> IIED Element 1: Intentional / Recklessness Definitions
Intentional: purpose intent or knowledge intent (D acts w/ desire to cause severe emotional distress or knows that such severe emotional distress is virtually certain to occur).
Recklessness: D acts in conscious disregard of high degree of probability that emotional distress will follow
Intentional Tort –> IIED Element 2: Extreme and Outrageous Conduct + Offensive Language
Satisfied if the D’s conduct is beyond the bounds of decency (civilized society will not tolerate).
- -> Offensive/insulting language generally not outrageous, except (3 scenarios):
(1) D is common carrier/innkeeper;
(2) D knows of P’s particular sensitivity; or
(3) D is an authority figure using racial/ethnic slurs against a subordinate
Intentional Tort –> IIED Requirement: Severe Emotional Distress
More than the level of mental distress a reasonable person could be expected to endure.
- -> must be substantial/long-lasting, not trivial/transitory
- -> most states don’t require actual physical injury
Intentional Tort –> IIED: Third Party/Bystander Liability (2 scenarios)
Where D’s conduct is directed at 3rd party, D liable if:
(1) P is immediate family member/close relative of 3rd party and is present at the time and the D is aware of the P’s presence; or
(2) to any other P (regardless of relationship) present at the time if such distress results in bodily harm and D is aware of P’s presence
Intentional Tort –> Trespass to Land: Definition and 3Elements
An intentional act that causes a physical invasion of P’s land.
3 Elements:
(1) Intent
(2) Entry
(3) P’s Land
Intentional Tort –> Trespass to Land Element: Entry - Physical Invasion (3 scenarios)
If the D (3 Scenarios):
(1) enters/causes object or third person to enter onto P’s land
(2) enters onto P’s land lawfully but remains when under legal duty to leave, or
(3) fails to remove object from P’s land when under legal duty to do so.
Intentional Tort –> Trespass to Land: Damages Remedies
(1) Nominal damages (trespass but no injury)
(2) D liable for full extent of harm caused by trespass
(3) Punitive damages (willful/malicious conduct)
Intentional Tort –> Trespass to Land: Restitutionary Remedy - Ejectment (def + 3 elements)
Action brought by P to have D removed from property, and mesne damages (compensate for loss of use of land; measured by rental value of property or benefit gained by wrongful possessor - whichever greater).
Requirements (3 Elements):
(1) proof of legal title;
(2) proof of P’s right to possession; and
(3) wrongful possession by D.
Intentional Tort –> Trespass to Chattels: Definition and 4 Elements
An intentional act by the D that interferes with P’s chattel (tangible personal property or intangible property with a physical representation), causing harm/actual damages (include value of loss of use/rental value or cost to remedy intermeddling).
4 Elements:
(1) Intent
(2) Interference
(3) P’s Chattel
(4) Actual Damages (unlike TTL)
Intentional Tort –> Trespass to Chattels Element: Intent
D intentionally performs physical act that interferes with O’s chattel. Liable even though D did not intend to trespass.
*Note: Mistake is not a defense
Intentional Tort –> Trespass to Chattels Element: Interference (def + 2 types)
Generally, uses or borrows without authorization.
2 Types of Interference:
Dispossession –> a direct interference with P’s possession, such as where a D temporarily takes the P’s chattel or wrongfully refuses to return it.
Intermeddling –> an interference with a chattel that does not directly affect P’s possession
Intentional Tort –> Conversion: Definition and 3 Elements
An intentional act by a D that causes the destruction of or a serious and substantial interference with the P’s chattel (mistake not defense).
–> D exercises dominion and control over chattel
3 Elements:
(1) Intent (D liable even if acting in good faith - mistake not defense)
(2) Dominion and Control
(3) Destruction/Serious and Substantial Interference
Intentional Tort –> Conversion: Examples
Wrongful acquisition (theft, embezzlement, receiving stolen property); wrongful transfer; wrongful detention; loss, destruction, or severe damage; material alteration; significant misuse
Intentional Tort –> Conversion: Damages (Type 1/6 Factors; Type 2)
-Forced Sale (Common) - price: FMV at time converted
Justice of requiring D to pay full value factors:
(1) extent/duration of D’s exercise of dominion
(2) D’s intent to assert right inconsistent with other’s right of control
(3) D’s good faith
(4) extent/duration of resulting interference with P’s right of control
(5) harm done to chattel
(6) inconvenience/expense caused to P
-Replevin: action brought by P to get personal property back
Intentional Torts –> Privileges/Defenses: Privilege (what is it + 3 circs + BoP)
D not liable for conduct that would ordinarily subject him to liability.
May exist where:
(1) person affected by D’s conduct consents to the act
(2) some important personal/public interest will be protected by D’s conduct which justifies harm caused/threatened by D’s conduct, or
(3) D must act freely in order to perform an essential function
D has burden of proving existence of privilege and that privilege was exercised reasonably under circumstances.
Intentional Torts –> Privileges/Defenses: Consent
Consent must be effective and D must not exceed the scope of consent.
- -> may be express (P affirmatively communicates permission for D to act, D must act within scope) or implied (reasonable person would interpret P’s conduct as evidencing permission to act).
- -> may be found as matter of law where P cannot consent (emergency, reasonable person)
Intentional Torts –> Privileges/Defenses: Ineffective Consent (6 ways - MF DIVA)
If consent given by P, consent may be ineffective:
- -> mistake: of fact/law as to nature of conseq of D’s act and D is aware of mistake
- -> fraud: induced by D’s intentional deceit as to essential nature/conseq of act
- ->duress: induced by threat of imminent harm to P or false assertion of lawful authority over P
- -> incapacity: young children/people with impaired mental capacities (mental disease, defect, intoxication) incapable of consent
- -> violation of criminal statute: D’s tortious conduct constitutes a crime
- -> act outside of scope
Intentional Torts –> Privileges/Defenses: Self-Defense
D honestly and reasonably believes that D used reasonable force to prevent P from engaging in an imminent and unprivileged attack.
- -> can only use degree of force necessary to avoid harm threatened by P.
- -> Once threat is over, defense will not work; must be imminent existing threat.
- -> no duty to retreat in most jdxs; never have to retreat from own home
Intentional Torts –> Privileges/Defenses: Defense of Others (def + reasonable mistake doctrine)
D entitled to defend another from an attack by the P to same extent that 3rd person would be entitled to defend himself from P.
- -> Reasonable mistake doctrine: even if 3rd person would not be permitted self defense, D relieved of liability if reasonable person would have believed defense of 3rd person was justified and that D’s action was necessary to prevent harm to 3rd person.
- However, D liable for unreasonable mistake
Intentional Torts –> Privileges/Defenses: Defense of Property
D entitled to use reasonable force to prevent P from committing tort against D’s property.
- -> never deadly force
- -> D must first demand that P return property/leave property
- -> no mistake allowed, even if reasonable
Intentional Torts –> Privileges/Defenses: Necessity
D permitted to injure a P’s property if reasonably necessary to avoid substantially greater harm to public at large (essentially, a disaster), himself, or property.
- -> reasonable person under same circumstances (objective standard)
- -> mistaken belief in necessity ok if reasonable
- -> D may still be liable for actual damage to P’s property but not technical torts like trespass
Intentional Torts –> Privileges/Defenses: Authority (3 types)
3 Types:
(1) Arrest
- PO can arrest if reasonably believes D committed felony.
- PO can arrest for misdem if Ds action constituted breach of the peace.
- Private person acts at his/her own peril - if wrong, liable for tort.
(2) Shopkeeper’s Privilege
- Not liable for FI if had a RS that P stole.
- Can only detain for a reasonable period and in a reasonable manner on the premises/immediate vicinity.
(3) Discipline
- Parent/teacher may use reasonable force to discipline a child.
Intentional Torts Privileges/Defenses: Shopkeeper’s Privilege
Shopkeeper not liable for false imprisonment if he has reasonable suspicion that P has stolen goods, uses reasonable force to detain the person, and detains the P for a reasonable period and in a reasonable manner (either on premises or immediate vicinity).
Negligence –> Duty Element: Definition
A legal obligation req’ing the D to conform to a certain standard of conduct for the protection of others against unreasonable risk.
–> D has legal duty to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risk of injury to others.
Negligence –> Duty Element: Foreseeable Ps
D owes duty only to foreseeable Ps:
D owes duty only to those persons inside the geographic zone of danger at the time of D’s neg.
–> Rescuers (even nonprofessional rescuers) are per se foreseeable Ps: owed an independent duty (per se foreseeable Ps, even if neg)
Negligence –> Duty Element: Continuing risk of harm
When D’s prior conduct (tortious or not) creates continuing risk of harm of a type characteristic to the conduct, the D has a duty to exercise reasonable care to prevent/minimize the harm.
Negligence –> Duty Element: Duty Based on Undertaking
D undertakes to render services to P (rescuer) and knows/should know that services will reduce risk of physical harm to P
–> cannot just stop rescuing
Negligence –> Duty Element: Special Relationships
A person in a special relationship with another has affirmative duty of reasonable care with regard to risks arising within the scope of that relationship (position of power over P).
–> Examples: employer-employee in scope of employment; common carrier and inkeeper-customer; school-pupil; parent-child; landlord-tenant (common areas within landlord’s control); business-patron; and custodial relationships.
Negligent Infliction of Emotional Distress: Definition, Elements and Exceptions
D engages in neg conduct –> as a result, P suffers emotional distress w/ some sort of physical manifestation.
P must:
(1) have been in zone of danger (risk of being physically injured)
(2) have suffered some accompanying manifestation of emotional distress.
Exceptions:
(1) If the D negligently communicates announcement of death to loved one
(2) if D neg mishandles corpse
Negligent Infliction of Emotional Distress: Bystander Actions (def + 3 reqs)
Physical harm occurs to loved one and P sues for emotional distress as result of injury to loved one.
3 Requirements:
(1) P was located near scene of accident;
(2) P suffered severe emotional distress resulting from sensory and contemporaneous observance of accident; and
(3) had close relationship with victim (immediate family member).
Negligence –> Duty Owed By Land Possessors: Invitees (def + dut)
Invitee: person who enters onto D’s land at D’s express/implied invitation and enters for purpose relating to D’s interests/activities.
- -> Business invitee: enters onto D’s land for purpose related to D’s business
- -> Public invitee: enters onto D’s land for purpose for which it is held open to public
- -> Invitee may turn into licensee or trespasser if enter private area of property where invite does not extend
Land possessor had duty to exercise reasonable care to prevent injuries to invitees caused by activities conducted on land.
–> also has duty to exercise reasonable care to discover dangerous artificial conditions that invitees would not reasonable by aware of, and to warn invitees of existence of such conditions or make conditions safe
Negligence –> Duty Owed By Land Possessors: Licensee
Licensee: person who enters onto D’s property with express/implied permission and does not enter for purpose benefitting D or D’s activities, nor is the land held open to the public (IE social guests).
Land possessor has duty to exercise reasonable care to protect them from injury arising from activities conducted by the land possessor or on the land possessor’s behalf.
- -> usually sufficient for land possessor to warn licensee
- -> land possessor must use reasonable care to discover licensees whom he is not aware.
- -> land possessor must exercise reasonable care to warn of any artificial condition of which he is aware which present unreasonable danger of which licensee is unaware and unlikely to discover (but no duty to inspect land for dangerous artificial conditions).
- -> same standard of care for D to protect licensees from dangerous natural conditions to same extent as artificial conditions (should warn of known concealed dangers of all types)
Negligence –> Duty Owed By Land Possessors: Unknown Trespassers
Land possessor has no duty of care as to trespasser whose presence is unknown; no duty to inspect land to attempt to discover unknown trespassers.
–> However, duty to avoid infliction of willful/wanton harm.
Negligence –> Duty Owed By Land Possessors: Known or Frequent Trespassers
Most jdxs require land possessor to exercise reasonable care to protect known trespasser from injuries deriving from activities on the land; generally, LO must warn of known and concealed dangerous artificial conditions.
If land possessor knows/reasonably should know that trespasser frequently enters a portion of his land, standard may be higher than unknown trespassers (same as known).
D liable for failing to exercise reasonable care in warning known trespasser of artificial condition on premises if:
(1) possessor knows/has reason to know of presence in dangerous proximity to condition; and
(2) condition of such a nature that the D has reason to believe that trespasser will not discover it or realize risk involved.
D has no duty to protect known trespasser from injuries deriving from natural conditions on land.
Negligence –> Duty Owed By Land Possessors: Child Trespassers (attractive nuisance doctrine - 5 reqs)
Where activities/natural conditions are involved, standard of care: same as adult trespassers.
Attractive Nuisance Doctrine
–> Where artificial conditions are involved, standard of care heightened (duty to exercise reasonable care to prevent injury to children).
5 Reqs:
(1) Child too young to appreciate the danger
(2) D knows/has reason to know of the trespass
(3) D knows of the dangerous condition
(4) Condition is artificial and foreseeable that children will want to approach it
(5) The risk of danger of the artificial condition outweighs its utility and burden to fix it
Negligence –> Duty Owed By Land Possessors: Privileged Entrants
POs, firefighters responding to emergency
Licensees or invitees depending on purposes for entrance
Negligence –> Duty Owed By Land Possessors: Ps on Adjacent Land
Land possessor must exercise reasonable care to prevent P not on his land from injury deriving from land possessor’s activities or activities of others conducted on his land.
Land possessor must exercise reasonable care to prevent P not on his land from injury deriving from unreasonably dangerous artificial conditions that abut or protrude onto adjacent land
Land possessor must exercise reasonable care to protect passerby on a public street from injury deriving from dangerous artificial conditions on his land.
Negligence –> Duty Owed By Land Possessors: Landlords and Tenants (common areas v tenant areas -3)
Common areas in landlord’s possession remain landlord’s responsibility.
Landlord liability for tenant areas
- -> patent defects: dangerous natural or artificial conditions that are/should be reasonably apparent to tenant upon transfer of possession; NO duty to warn.
- -> latent defects: dangerous natural/artificial conditions of which tenant is unaware and are not reasonably apparent to him, of which landlord is aware; duty to warn, but not to inspect.
- -> negligent repair: no landlord duty where dangerous conditions arise after possession has transferred to tenant, unless landlord undertakes to repair such conditions
Negligence –> Breach/Standard of Care: RPP
D breaches duty to P if he fails to conduct himself as a reasonably prudent person under the same or similar circumstances.
Objective test: D’s conduct measured against expectation of conduct w/in community.
–> person w/ diminished cognitive abilities assessed w/o such disabilities (mental ability, speed of reflexes, or mental health)
However, law does consider:
–> person w/ increased knowledge/expertise compared to reasonable person possessing same amount of increased knowledge/expertise
–> in emergency not of Ds own making, must conduct themselves as reasonable person would behave in emergency
–> physical conditions (blind, deaf, amputee): standard of RPP w/ that condition
3 Factors to Analyze Breach of RPP (Hand Formula)
(1) What is the probability of harm occurring from D’s conduct?
(2) What is the likely magnitude of the harm going to be?
(3) What is the burden on D to avoid the harm?
Negligence –> Breach/Standard of Care: RPP Standard - Children
Reasonable person standard specifically takes account of age when D is a minor.
- -> Majority: minor D’s conduct assessed according to reasonable child of same age, education, intelligence, and experience standard.
- -> Minority: divides minors into three age levels (6 and below - not neg; 7-13 rebuttable presump not neg; 14 up rebuttable presump neg)
Exception: children engaging in adult activities –> adult standard of care
Negligence –> Breach/Standard of Care: Negligence Per Se (majority; ToPToH 3 conditions; exception)
Majority: Negligence per se –> Where D’s conduct also violates a statute that does not provide for civil liability (criminal statute), that statute can est the standard of conduct for breach of duty purposes.
Conditions (must be type of person, type of harm):
(1) injury caused by the D’s conduct is type that statute was intended to prevent
(2) P is a member of the class intended to be protected by statute; and
(3) D’s violation of statute is not excused (emergency not of D’s own making or when it’s more dangerous to comply with the law)
Exception:
Licensing statutes: not having a license does not create liability (IE expired DL not neg per se)
Negligence –> Breach/Standard of Care: Professionals
Professionals (drs, lawyers, accountants, etc.) treated differently in neg from other Ds.
–> Customary practice of professionals in good standing sets standard of care.
Negligence –> Breach Element: Determining Breach
P generally meets burden of proving breach by est that D’s conduct fails to conform to applicable standard of care.
Negligence –> Breach/Standard of Care: Res Ipsa Loquitur
Allows jury to infer D’s breach (only breach) based on the nature of the accident and D’s relationship to it (when P cannot identify precisely what D did wrong, but the sitch smells like neg)
3 reqs for res ipsa loquitur:
(1) the event that caused the P’s injury was one which would not ordinarily occur in the absence of neg
(2) it is more likely than not that it was D’s neg that was responsible for injury causing event because D had control over instrumentality of the harm; and
(3) P was not responsible for event that caused injury
–> Immaterial that P placed himself in situation of peril or that he did not take precautions to avoid injury.
–> Professional malpractice application - common knowledge exception: when equipment is sewn into P you don’t need an expert to est neg conduct
Negligence –> Cause in Fact (AC) Element: But-For Test
A D’s conduct was the cause in fact of an event if that event would not have occurred but for existence of conduct.
-As long as more than 50% at fault, D is liable for full extent of damages.
Negligence –> Cause in Fact (AC) Element: Substantial Factor Test
D’s conduct was AC if conduct was substantial factor in bringing about injury.
- -> For situations where two or more Ds conduct results in injury to P, but each D alone would have been enough to cause the entire harm.
- -> Joint and several liability –> P can collect from any Ds, and Ds can sue each other for contribution
Negligence –> Cause in Fact (AC) Element: Alternative Liability Theory (+ 3 reqs)
Where a Ps injury arises from neg conduct of two or more independently acting Ds, only one of whom can actually be responsible.
–> each Ds conduct is considered cause in fact of injury unless D can prove he did not cause P’s injury (burden of proof shifts from P to D)
3 Requirements:
(1) All Ds are tortious/neg
(2) All Ds are being sued together (can’t use if one D is left out); and
(3) Small number of Ds
- —-> Burden shifts to Ds to show they were not the cause; if Ds cannot do so, they will be J/S liable
Negligence –> Proximate (Legal) Cause Element: Intervening Force
Actively operates in producing harm to another after the actor has already committed his negligent act/omission.
–> D liable for foreseeable intervening force: rescuers neg; physician/nurse treatment; disease/subsequent injuries
Negligence –> Proximate (Legal) Cause Element: Unforeseeable Manner of Harm - Superseding Cause
An unforeseeable, intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury, and thus relieves original TF of any further liability.
–> Ex: naturally occurring phenomena; criminal acts of 3rd persons; intentional torts of 3rd persons; extraordinary forms of neg conduct
The more culpable the intervening force, the more likely it supersedes; typically, criminal conduct will be a superseding cause, if that conduct is not foreseeable.
Subsequent neg conduct is generally not so unforeseeable that it cuts off liability.
Tip: look for passage of time (at some point, liability is cut off)
Negligence –> Damages Element: Actual Damages
A P must affirmatively prove actual damages (property damages and personal injury damages are recoverable); nominal damages not available; punitive damages not allowed generally.
Negligence Element Damages: Collateral Source Rule
Collateral benefits (payments made/benefits given to injured P from other sources) are not subtracted from P’s recovery.
- -> Ex: insurance policies; employment benefits; gratuities; social legislative benefits.
- -> Payments made by TF or party acting for him (D insurance co) to injured party are credited against D’s tort liability.
Negligence Element Damages: Punitive Damages
Amount over and above compensation needed to make P whole, intended to punish D for egregious conduct and act as deterrent; available in tort cases where there has been willful, wanton, or malicious conduct.
–> test for whether punitive damages grossly excessive: (1) degree of reprehensibility; (2) ratio cannot be 10x higher; (3) diff between award and civil/criminal sanctions could be imposed for comparable misconduct.
Negligence –> Defenses: Contributory Negligence (don’t assume jdx on test)
P must exercise due care to protect himself from injury by D; P’s own neg (contributory neg) may bar P’s recovery (test: whether P acted as reasonable person under similar circumstances).
- -> Contrib neg traditionally barred all recovery by P (CL)
- ———> Last clear chance doctrine (generally wrong answer): if D’s neg occurs after Ps neg, so that D had last opp to avoid harm, P is entitled to full recovery.
- -> Contrib neg not complete bar if P in intentional tort, recklessness, or strict liability.
Negligence –> Defenses: Comparative Fault
Assume pure comparative fault w/ J/S liability unless told otherwise…
- -> P can recover no matter how much P is at fault; recover is amount of damages minus the percentage that P is at fault.
- -> J/S applies if mult neg Ds, and P is also at fault. SUbtract Ps percentage of fault and P can sue one or more Ds to get full remaining amount. If P sues only one D, D can seek contribution from other Ds.
Also, modified comparative fault…
–> P is barred from recovery if P is as much at fault or more at fault than D
Negligence –> Defenses: Assumption of Risk
A P assumes the risk of injury from D’s neg if P expressly/impliedly consents to undergo risk created by D’s conduct.
- -> Express (3 reqs): (1) P must be aware of and understand the terms; (2) injury that occurs must be within risks of which P agreed to relieve the D; and (3) the agreement must not be contrary to pub pol
- -> Implied (3 reqs): (1) P had knowledge of and appreciated nature of danger involved (subjective); (2) P appreciated specific danger that injured him; and (3) P voluntarily chose to subject himself to that danger.
Firefighter Rule (Prof Rescuers): When P is a prof rescuer AND is injured due to inherent risk of job, P cannot recover in neg against person who created need for rescue. (diff from Good Samaritans, we want those to be able to sue to encourage ppl to rescue)
Primary Assumption of the Risk
–> In certain contexts, there is no duty to be non-neg. Often arises in context of sporting events.
Strict Liability –> Categories: Possession of Animals
D can be SL for injuries inflicted by animal w/ dangerous propensities; wild animals (not customarily devoted to service of man) are generally considered w/ dangerous propensities.
- -> One bite rule: after one bite, known dangerous propensities
- -> Trespassers: no liability most jdxs for trespassers injuries by animals w/ dangerous propensities (except for known, frequent, or child trespassers; must show D failed to due care to warn or protect from animal).
Strict Liability –> Categories: Abnormally Dangerous Activities
Is activity abnormally dangerous (3 reqs):
(1) activity creates risk of serious injury as to P, his land, or chattels;
(2) risk cannot be eliminated by exercise of due care; and
(3) activity not usually conducted in that area/community.
- -> Proximate cause: P must be injured by the risk that makes activity dangerous.
- -> P can recover absent proof of fault as long as D was involved and activity caused the harm.
- -> Superseding cause may relieve strict liability D of liability
Strict Liability –> Defenses: Contributory Negligence
D generally cannot raise this defense with SL. (unless assumption of risk)
Strict Liability –> Defenses: Assumption of Risk
P completely barred from recovery if P knows of and appreciates the danger justifying imposition of strict liability and voluntarily exposes himself to such danger.
Products Liability –> Strict Products Liability in Tort: Definition
Strict products liability invoked when a defective product (for which approp D is responsible) injures approp P.
–> Generally, services alone are not enough.
Products Liability –> Strict Products Liability in Tort: Proper P
Any P injured while using defective product may recover damages from approp D.
- -> No req of contract privity
- -> Ex: purchasers and consumers; families; friends; guests; employees; bystanders physically injured
Products Liability –> Strict Products Liability in Tort: Proper D
Commercial suppliers at all levels of distribution, as well as commercial lessors, new home developers, and sellers of used goods (manufacturer, wholesaler, and retailer).
Retailers and commercial lessors subject to strict liability for defects in new goods that they sell or lease.
Occasional/one-time sellers not proper Ds.
Products Liability –> Strict Products Liability in Tort: Mixed Goods Services Situations
Providers of services are generally not strictly liable for injuries to customers.
- -> Ex strict liability: restaurants as sellers of good (food)
- -> Ex not strict liability: doctors/dentists (defective medicine)
Products Liability –> Strict Products Liability in Tort: Manufacturing Defect
Product is in a defective condition unreasonably dangerous, easiest to show.
Two Scenarios:
(1) Product is more dangerous than a consumer would reasonably expect when using in its intended manner or it is in a condition not intended by manufacture; AND
(2) Defect existed when leaving manufacturer’s hands
SL on manufacturer and everyone else in chain of distrib.
Products Liability –> Strict Products Liability in Tort: Design Defect
Product is in a defective condition unreasonably dangerous.
Product manufactured as manufacturer intended, but presents a danger of personal injury/property damage.
Two Tests:
(1) Ordinary Consumer Expectation Test
- -> Product is more dangerous than would be contemplated by the ordinary consumer who possesses ordinary knowledge common to the community.
(2) Risk-Utility Balancing Test
- -> Jury determines whether the danger the design threatens (cost in human injury and property damage) outweighs its utility to society.
- -> Product will be found defective if an alternative design could have reduced the danger at about the same cost.
Products Liability –> Strict Products Liability in Tort: Design Defect - Hindsight-Neg Test
Product is defective if reasonable person, knowing of danger it presented, would not have placed it in the stream of commerce.
Products Liability –> Strict Products Liability in Tort: Absence of Warnings
A D’s failure to warn a P that a product presents threat of personal injury/property damage may be considered a defect.
Two Scenarios:
(1) P is Asserting a Warning is Inadequate
- -> Test : reasonableness - does the warning reasonably inform reader of risks of the product and how to reduce them?
- -> Considers language, placement, size of font, clarity
(2) P is Asserting There is no Warning
- -> A manufacturer has to warn about risks of which it knows or should know.
- -> Consider the gravity and probability of the harm: 1% risk of death - they should warn; 1% risk of tooth discoloration - probably not
Some products so obviously dangerous no warning req (ex: knife)
Products Liability –> Strict Products Liability in Tort: Cause in Fact
P must show that defect that injured P was in existence at time it left D’s control, and that defect was substantial factor in bringing about injury.
Products Liability –> Strict Products Liability in Tort: Prox Cause
Same principles as neg, except where intervening conduct of 3rd person occurs:
- -> Neg handling of product after it leaves D’s control foreseeable and not superseding intervening force.
- -> 3rd parties criminal or intentionally tortious conduct unforeseeable intervening force that supersedes D’s wrongdoing, unless defect increased risk that 3rd party would engage in conduct.
- -> Did P use/alter the product in an unforeseeable way?
Learned Intermediary Doctrine
–> If a manufacturer provides a warning to a dr, the manufacturer can expect the dr will pass the warning on to the patient; if the dr does not, the dr is a superceding cause of patient’s harm.
Products Liability –> Strict Products Liability in Tort: Defense - Misuse
If P uses product in manner neither intended nor foreseeable, no SPL.
–> However, D may still be liable for foreseeable misuse.
Products Liability –> Strict Products Liability in Tort: Defense - Alteration
Liability reduced when product altered after leaving hands (must occur between time product leaves manufacturer and time of P’s injury).
–> Not applicable to design defect theory
Products Liability –> Strict Products Liability in Tort: Defense - Contributory Negligence
Originally, P’s unreasonable conduct was not a defense to SPL unless P knew of defect, comprehended the risk, and voluntarily elected to expose himself to the risk (only defense to SL).
Modern Law, contributory neg only applies as a defense to SPL if Ps conduct rises to the level of misuse, abnormal use, or independent neg (IE not where Ps wrongful conduct is a failure to discover the defect).
- -> A Ps continued use of a product which the P knows to be defective is not voluntary and not ATR if there are no practicable alternatives to such use.
- -> Where a D can show that his product was subsequently altered in an unforeseeable manner by someone in the chain of distribution or a third party, cts usually relieve D of liability.
Products Liability –> Strict Products Liability in Tort: Defense - Comparative Neg
P’s wrongful conduct that contributes (along with defective product) to injury reduces recovery in some amount.
- -> Usually limited to misuse, abnormal use, or independent neg.
- -> In some jdxs, the Ps unreasonable conduct in failing to discover and guard against the defect is not a defense.
Products Liability –> Negligence Theory: Proper Ds
P must est greater personal degree of fault; neg conduct results in liability for:
a D selling goods; a D repairing used goods; a D leasing real property; a D providing services; and franchisors
Products Liability –> Negligence Theory: Elements
Same elements part of neg (duty, breach, AC PC, damages).
Products Liability –> Negligence Theory: Duty
A duty is owed to any foreseeable P; no contractual relationship req.
Products Liability –> Negligence Theory: Breach of Duty
D judged by reasonable person standard of care, and breach of duty is unreasonable conduct by D.
- -> Proof that product is defective does not automatically est that each D in the chain of distribution breached a duty; P must est that D failed to exercise due care.
- -> If reasonable person would have realized product was dangerous in normal use, a D’s failure to inspect and discover defect is breach of duty under neg (consider nature of product, source of product, and extent of info available to D).
- -> If D inspects and becomes aware of defect, subsequent failure to find defect or to take reasonable precautions is judges by reasonable person standard.
Products Liability –> Negligence Theory: Cause in Fact and PC
Same as general neg.
Products Liability –> Warranty Theory: Definition
Liability arises from fact that product is not as represented (breaches warranty either expressly/impliedly).
–> P must est that a warranty existed as to product and that product does not conform to warranty.
Products Liability –> Warranty Theory: Express Warranties
An express warranty exists where D made representation as to nature/quality of product (can occur via advertising, during negotiations for purchase, or as provision of contract of sale) that becomes a basis of the bargain.
- -> (UCC) Express warranty may be created by D’s promise, by affirmation of fact, by description, or by use of sample or model.
- -> Any seller can make this warranty (manufacturer, distributor, or seller
Products Liability –> Warranty Theory: Implied Warranties
Two Types:
(1) where merchant deals in goods of particular kind, the sale of such goods constitutes an implied warranty that those goods will be merchantable (average quality for goods of that kind and generally fit for purpose for which such goods normally used).
(2) where a D knows/has reason to know that P is purchasing goods for a particular purpose, and the P is relying on D’s skill or judgment to furnish approp goods (sale of goods will constitute implied warranty that goods will be fit for P’s purpose).
- -> Requirements of privity and notice
- -> Can be disclaimed by K
Products Liability –> Warranty Theory: Defense -Disclaimer
(UCC) D allowed to disclaim/limit applicability of warranties by sufficiently conspicuous writing.
- -> it is prima facie unconscionable for seller to attempt to limit remedies available for breach of warranty to exclude recovery for personal injuries where consumer goods are involved.
- -> where goods sold as is, often implied that seller is disclaiming warranties
Products Liability –> Warranty Theory: Defense - Failure to Notify Sender
(UCC) P-buyer must notify D-seller of breach of warranty within reasonable time after buyer discovers or should have discovered it.
Products Liability –> Warranty Theory: Defense -Contributory and Comparative Neg
With respect to personal injury or injury to property, contrib/compar fault defenses are available where warranty is the theory on a similar basis to SL in tort.
Products Liability –> Warranty Theory: Defense -Assumption of Risk
Similar in application to SPL; if P voluntarily and unreasonably continues to use product after he discovers that it is not fit for purpose purchased or not of merchantable quality, D is exonerated from liability for personal injuries or property damage suffered by P.
Nuisance –> Types: Public Nuisance
An unreasonable interference w/ a right common to general public (health, safety, morals of community); P must have suffered harm of different kind from other members of public. Typically brought by govt actor (ex: AG).
Unreasonable factors: (1) whether the conduct involves a sig interference w/ public health, safety, peace, comfort, or convenience; (2) whether conduct is proscribed by statute, etc.; (3) whether conduct is of a continuing nature or has produces permanent/long-lasting effect, and as the actor knows/has reason to know, has sig effect on public right.
For Public Nuisance, P must (3 scenarios):
(1) have right to recover damages
(2) have authority as public official or public agency to represent state or political subdivision in the matter; or
(3) have standing to sue as representative of general public, citizen in citizen’s action, or member of class in class action.
Nuisance –> Types: Private Nuisance
Thing/activity that substantially and unreasonably interferes w/ P’s use and enjoyment of his land.
- -> Interference must be offensive, inconvenient, or annoying to an average person in the community; P cannot devote his land to unusually sensitive use and complain of nuisance based on otherwise relatively harmless conduct.
- -> P must be a possessor, owner of easement/profit, or owner of nonpossessory estate
Private Nuisance Reqs: A D is subject to liability only if his conduct is a legal cause of an invasion of another’s interest in private use and enjoyment of land, and the invasion is either:
(1) intentional and unreasonable; or
(2) unintentional and otherwise actionable under the rules controlling liability for neg or reckless conduct
Ct will weigh gravity of harm done to P against utility of D’s activity.
- -> Factors:
(1) compliance w/ applicable zoning ord;
(2) whether there are alternatives
(3) frequency and extent of interference/injury;
(4) utility and social value of D’s activity;
(5) who was there first (once a defense, now just a factor)
Nuisance –> Defenses
Contributory Neg - Same as neg; when harm is intentional/reckless, contrib neg not defense; when nuisance is abnormally dangerous activity, contrib neg is defense only if P has voluntarily and unreasonably subjected himself to risk of harm.
Assumption of Risk - same as neg
Coming to the Nuisance - fact that P has acquired/improved land after nuisance will not by itself bar action, but is a factor to consider in determining whether nuisance is actionable.
Compliance with Statute - same as neg
Nuisance –> Remedies: Granting Injunctive Relief v. Damages
Usual remedy is damages; where damages are inadequate, ct may grant injunctive relief (balancing of equities: economic hardship to parties and public interest in D’s activity continuing).
P must show (3 elements):
(1) he is about to suffer/will continue to suffer irreparable injury for which money damages are inadequate.
(2) the balance of hardships between P and D support equitable remedy.
(3) public interest would not be f by grant of injunction
P has privilege to enter D’s land and personally abate nuisance after notice to D and D refusal to act; extends to use of reasonable action necessary to terminate nuisance.
Nuisance –> Remedies: Injunction - Definition
Injunction is a ct order directed to a person/entity, usually to refrain from doing particular act (prohibitory) or do a particular act (mandatory).
Nuisance –> Remedies: TROs and Preliminary Injunctions
Prelim relief available (4 factors):
(1) P likely to succeed on the merits of underlying claim
(2) complaint shows P entitled to relief demanded either for limited period or perpetually
(3) denial of injunctive relief would produce waste, or great/irreparable injury to the P
(4) public interest as well as balancing of hardships favors grant of injunction
Notice required for prelim injunct; between notice and hearing on prelim injunct, party may seek TRO (14 days).
Nuisance –> Remedies: Permanent Injunction
Requirements: P must have prevailed on substantive claim and shown a need for continuing protection.
–> Need not be perpetual, may be set to expire by its own terms.
Defamation: Definition
P must establish D published defamatory material concerning the P that caused reputational damage.
Defamation: Issues
Defamatory message Certain pleading probs Publication of message Type of defamation Damages Common law defenses Constit issues
Defamation –> Issue: Defamatory Message
Message that holds a P up to hatred, ridicule, contempt, or scorn, causing reputational harm.
- -> Statements of fact: defamatory (would reasonably prudent person interpret statement as fact); statements of opinion: not defamatory.
- -> Message defamatory per se if apparent on face of message that it will injure P’s reputation.
- -> Defamatory message must be understood by person who receives it.
- -> Defamatory message must be one that can be believed as truthful and reputation harming.
Defamation –> Issue: Pleading Problems
Party suffering defamation must be living person or existing org.
Defamatory message concerning 3rd person cannot defame P (even if closely related).
Where P is not named, P must allege the message is of or concerning P and that P is identifiable by context.
Defamation –> Issue: Publication - Forms of Communication
Spoken/written statement communicated to third person (besides D and P).
P must prove reasonable third person who received defamatory message understood it to refer to P.
P must show D either intentionally published the information or was neg in publishing the information
–> Republication Rule: in addition to D, who originates defamatory message, other persons who repeat the defamatory message are potentially liable as well.
Defamation –> Issue: Types of Defamation - Libel
Libel: defamatory message embodied in any relative permanent form.
–> Reputational harm presumed, but damages have to be proven.
Libel per quod: libel not apparent on its face to be defamatory.
–> P must plead and est extrinsic facts to est libel was defamatory and referred to P.
Defamation –> Issue: Damages - Three Types
Pecuniary damages: quantifiable, actual monetary losses due to injury to reputation. (ex: loss of customers/job).
General damages: non-pecuniary aspects to injury to reputation (ex: humiliation, loss of friends).
Punitive damages: assessed against D to punish and deter future wrongful conduct (P must show vexatiousness/evil intent/malice to recover).
Defamation –> Issue: Defenses - Truth
P must prove falsity as part of prima facie case.
–> Exception: P is a private (not public) figure, and the matter is a private concern.
Defamation –> Issue: Defenses - Absolute Privilege
D may not be held liable for an otherwise defamatory message as a matter of law (no matter how bad the D is). D has burden to prove absolute privilege.
Types:
(1) Legislator not liable for defam message while on floor of legislature/during hearing/committee proceedings.
(2) Participant in judicial proceedings not liable for defam message reasonably related to proceedings.
(3) Policy-making officials of the executive branches of state/federal govts, so long as defam utterance made in course of duties and relevant to those duties.
(4) eDefam message communicated by one spouse to another.
–> Privilege ends if someone repeats in a non-privileged situation
Defamation –> Issue: Defenses - Qualified Privilege
Qual Privilege scenarios for defam message (D bears burden of proving Qual Privilege):
(1) Made in communication that appears reasonably nec to protect or advance the D’s own legitimate interests
(2) that were communicated on a matter of interest to recipient of the communication or 3rd person
(3) that were communicated concerning matter of public interest
(4) that contained in a criticism of a matter of public interest and
(5) that are republished in a report of public hearings or meetings, so long as D’s report is fair/accurate.
P bears burden of est qual privilege lost; D loses qualified privilege if (3 scenarios):
(1) he acts out of malice or is reckless as to the statement’s truth/falsity
(2) he exceeds scope of privilege
(3) he does not believe the truth of the defam communication
Defamation –> Issue: Defenses - Consent
Generally applicable principles relating to consent apply to defamation.
Defamation –> Issue: Constitutional Issues - Nature of P
Where a P is a public official or public figure, the P must est that the D acted with malice before recovery.
Public official: govt official who has/appears to have substantial responsibility over govt operations.
–> If defamation is related to capacity as public official, P must prove actual malice by clear and convincing evidence (D knew it was false/recklessly disregarded the truth or falsity).
Public figure: person who has either achieved pervasive fame/notoriety (celebrity); or voluntarily injected himself or allowed himself to be drawn into particular public controversy such that he becomes a public figure.
–> Treated same as public official, clear and convincing evidence for malice
Private Figure: look at subject matter and determine whether it is of public/private concern.
- -> Public concern: D must be shown to have exhibited some degree of fault higher than SL (negligence); presumed/punitive damages require actual malice
- -> Private concern: P does not have to prove actual malice to get presumed/punitive damages
Malice: knowing falsity/recklessness as to truth or falsity; D must have actually known that the message was false or actually entertained serious doubts about its truth (reckless disregard).
Defamation –> Issue: Constitutional Issues - Presumed and Punitive Damages
Where neg is applicable degree of fault and P does not show malice, P may only recover actual damages.
–> Actual damages are broader/more inclusive than common law pecuniary damages, and include all injuries to P’s reputation.
General damages may be presumed if otherwise available under defamation law, and punitive damages may be awarded upon proper proof where (2 scenarios):
(1) in any case where P est that D acted with malice; and
(2) where common law still applies (where a private P sues for defamation as to matter not of public concern).
Invasion of Privacy: Intrusion into Seclusion
D unreasonably intrudes into P’s seclusion (zone of privacy).
Seclusion refers to a P’s right to physical solitude or to the privacy of personal affairs/concerns.
–> P must have reasonable expectation of solitude/privacy.
Present when a D unreasonably intrudes into P’s seclusion; D’s intrusion must be highly objectionable to a reasonable person.
–> including physical and nonphysical intrusions
Damages include compensatory damages (eg mental distress) and if bad enough, punitive damages
Invasion of Privacy: Commercial Appropriation of Identity/Likeness
Appropriation is an unauthorized use of P’s identity/likeness for the D’s commercial advantage.
- -> Newsworthy purpose of P’s likeness/identity exempt
- -> P bears burden of proving he did not consent to D’s use
- -> Use present where D uses any object/characteristic sufficient to identify P
- -> Use must be connected to promotion of product/service
Invasion of Privacy: Public Disclosure of Private Facts
Definition: A D unreasonably discloses private facts about a P to the public.
- -> Actionable if highly offensive to reasonable person and not of legitimate public concern (not newsworthy).
- -> Look for passage of time - 20 years pass and less relevant
- -> Injunction possible because the information is true (unlike defamation)
- -> If D gets info from public records, D cannot be liable for sharing that information
Invasion of Privacy: Portrayal in False Light
Definition: D publishes matters attributing to P views he does not hold/attributing actions to him he did not take; must be such that a reasonable person would find it highly offensive.
- -> D must communicate material to substantial number of people.
- -> Where P portrayed in false light as to matter of public interest, P must prove that D acted with malice (knowledge of falsity or reckless disregard for truth or falsity).
Invasion of Privacy: Defenses and Privileges
Truth: not a defense to appropriation/intrusion; complete defense to false light.
Consent: defense to disclosure, intrusion, and false light.
–> P required to prove lack of his consent as element of prima facie case for appropriation.
Privilege: absolute and conditional privileges applicable to defamation applicable to public disclosure of private facts and portrayal in false light.
Wrongful Institution of Legal Proceedings: Malicious Prosecution
Definition: Institution of criminal proceedings by a D for improper purpose and w/o PC, that terminate favorably for the P (P is not convicted) and yet still causes P damages. (exs: persuading pros to bring charges against P, signing affidavit for warrant, giving false info to authorities w/ knowledge of falsity).
- -> D must act for primary purpose other than bring a guilty person to justice.
- -> D lacks probable cause when either (two scenarios): (1) a reasonable person possessing same facts as D would not have believed that the P was guilty; or
(2) D did not actually believe that P was guilty.
Wrongful Institution of Legal Proceedings: Defenses
Privilege: judges and prosecutors absolute; law enforcement more limited (not protected from malicious pros if particular conduct complained of consisted of acts outside scope of officer’s official duties/authority).
Truth: D can establish by prep of evidence that P was actually guilty of crime for which P was pros.
Wrongful Institution of Legal Proceedings: Abuse of Process
Exists where a D intentionally misuses a judicial process (civil or criminal) for purpose other than that intended.
–> P need not show D’s lack of PC; proof of D’s improper purpose serves same function.
Economic Torts–> Intentional Misrepresentation (Fraud): Definition
An intentional misrepresentation by a D, made with scienter, which is material and justifiably relied upon by P and which causes damages to P.
–> Scienter present when D knew statement was false or is reckless as to veracity.
Can consist of (3 scenarios):
(1) false, affirmative assertion;
(2) active concealment; or
(3) an omission of fact (failure to disclose)
Economic Torts –> Intentional Misrepresentation (Fraud): Elements
4 Elements P Must Prove:
(1) Intentional material misrepresentation by D
(2) Of past or present fact
(3) Made with knowledge and
(4) On which the P justifiably relied to P’s economic detriment
Mental State: D must intend P (or class of persons which P belongs) to RELY (will act or fail to act in reliance on Ds misrepresentation).
Failure to disclose not enough unless:
(1) D is fiduciary for the P
(2) D makes assertion believing to be true, subsequently discovers falsity or changed circumstances, and fails to disclose truth
(3) where D makes incomplete/ambiguous assertion, omitting additional facts that render his assertion misleading
(4) where D makes false assertion not intending anyone rely on it, subsequently discovers P intends to act in reliance, and fails to disclosure
(5) where the P reasonably expects disclosure
Economic Torts: Negligent Misrepresentation
Traditionally, D has no duty to avoid neg infliction of pure economic loss.
Many jdxs impose liability only in certain situations where:
(1) special relationship exists between D and P (like fiduciary duty), and the nature of D’s activity justifies holding D liable for failure to exercise due care (ex: accountants, lawyers, etc.).
(2) if D knows they are acting for the benefit of a 3rd party and the 3rd party relies and suffers economic loss
D liable only to Ps (2 possibilities):
(1) the person to whom misrepresentation was made; and
(2) to any other specific persons/identifiable group of persons that the D knew would rely on misrepresentation
Economic Torts: Interference with Contractual Relations
Contract must (3 elements):
(1) be in force and effect;
(2) be legal; and
(3) not be opposed to public policy
P must prove:
(1) D knew that there is a K between P and 3rd party; not enough that he has merely reaped the advantages of the broken K after the contracting party has withdrawn from it
(2) D acted with purpose of having the K breached or making it harder to perform
Exception: Ks to marry receive special treatment; almost without exception, cts have refused to hold it is a tort to induce parties to break them.
Economic Torts: Interference w/ Prospective Advantage
Protects probable expectancy interests of future contractual relations of a party (ex: obtaining employment, opportunity to gain customers); D liable where conduct unlawful in itself or malevolent (evincing desire to do harm to P for its own sake).
P must show that D:
(1) Knew of prospective economic advantage; and
(2) Acted to interfere with it for improper motives
- -> BUT D can act to protected their own competitive interests
Defense: privilege of competition - not a tort to beat a business rival to prospective customers.
Economic Torts: Injurious Falsehood (Trade Libel) - Definition
Definition: false statement made to 3rd party by the D that causes economic injury to P.
- -> need not be defamatory, personally relate to P, or cause others to shun the P’s company
- -> P bears burden of proving falsity
- -> D must intend to cause others not to do business w/ P
- -> Recovery: only for pecuniary losses that P proves have been realized/liquidated
P must prove:
(1) False statement
(2) actual malice or D knew statement was false or recklessly disregarded veracity
(3) made to another or published; and
(4) causing specific economic injury to P (not reputational harm, economic loss only)
Economic Torts: Injurious Falsehood (Trade Libel) - Defenses
Defenses:
(1) Consent - D not liable for injurious falsehood if speaking with consent of P
(2) Privilege - same absolute and qual privileges available in injurious falsehood action; if P est D acted with malice, conditional privilege lost
Miscellaneous Tort Concepts: Vicarious Liability Definition
Describes liability imposed on D because of his relationship w/ actual wrongdoer that directly caused injury to P.
Miscellaneous Tort Concepts: Vicarious Liability - Employer-Employee (Respondeat Superior)
Employer liable for injuries caused by neg / strict liability of employee if tortious act occurred w/in scope of employment.
- -> Did acts occur in frolic (major deviation, outside of scope) or in detour (small deviation from employer’s directions, within scope)?
- -> An act is within scope of employment if it is so closely connected w/ what employee was hired to do and so fairly and reasonably incidental to it that they may be regarded as methods of carrying out objective of employment.
- -> Employer can be directly liable if neg hiring
- ———–> Intentional torts generally not repondeat superior, even if committed during working hours (unless force used to further employer’s purpose).
Miscellaneous Tort Concepts: Vicarious Liability - Independent Contractor
D generally not liable for torts committed by someone he has engaged as an independent contractor.
–> Employee v. IC status depends on whether employer who hired dictates the means, method and manner of ICs work; more control: more likely to be employee not IC
Exceptions (2):
(1) The contractor undertakes a duty the law does not permit to be delegated to another; and
(2) a contractor engages in inherently dangerous activities (any activity to which there is high degree of risk in relation to surroundings, recognizable in advance as requiring special precautions.
Miscellaneous Tort Concepts: Vicarious Liability - Joint Enterprise (Partners and Joint Venturers)
Partners and joint venturers vicariously liable for each other’s torts if those torts were committed in the course and scope of the partnership / joint venture.
- -> Partnership: legal relationship arising from agreement between two or more persons to operate a business for profit.
- -> Joint venture: more limited scope/duration than partnership; present when two or more people engage in concerted activity for common business purpose and each has mutual right to control activity.
Miscellaneous Tort Concepts: Vicarious Liability - Negligent Entrustment
Cts generally recognize liability for neg entrust, whereby a D will be held liable for negligently permitting 3rd party to use thing/engage in activity.
P must prove that: (5 elements)
(1) the entrustee was incompetent, unfit, inexperienced, or reckless
(2) the entrustor knew, should have known, or had reason to know of the entrustee’s condition
(3) there was an entrustment (express or implied) of the chattel
(4) the entrustment created an appreciable risk of harm to others; and
(5) the harm to the injury victim
Miscellaneous Tort Concepts: Vicarious Liability - Owner of Auto or Driver
Owner of motor vehicle liable for neg operation by any person granted permission to use/operate it.
Family purpose doctrine: family member driver of family car, in pursuit of recreation/pleasure, considered to be engaged in owner’s business and viewed as agent or servant of owner.
–> P must show (4 elements): (1) D owned/had interest in/control over vehicle; (2) D made vehicle available for family use; (3) driver was member of D’s immediate household; and (4) driver drove the vehicle with the D’s permission.
Miscellaneous Tort Concepts: Vicarious Liability - Parent-Child
Parent normally not vicariously liable for tort committed by his child.
–> Parents can be liable for their own neg, neg supervision, or entrustment.
Miscellaneous Tort Concepts: Vicarious Liability - Bailor-Bailee; Tavernkeepers
Bailor-Bailee: Bailor not vicariously liable for torts of bailee.
Tavernkeepers: historically not vicariously liable for injuries inflicted on intoxicated patron; some states impose liability for injuries to third persons caused by intoxicated persons.
Miscellaneous Tort Concepts: Joint and Several Liability - Definition
Where two or more Ds acting in concert or independently injure P, and damages cannot be allocated amongst Ds, all Ds are liable for entire P injury; P can execute against any D.
–> In compar neg, any D compelled to pay damages to P greater than percentage of responsibility may obtain contribution for pro rata shares of other Ds.
Miscellaneous Tort Concepts: Joint and Several Liability - Contribution
One of several Ds responsible for neg injuring P may compel others to contribute an equal share toward any judgment satisfied by P against one of them.
–> In compar neg, amount payable by each D equal to share of P’s injuries for which D responsible.
Miscellaneous Tort Concepts: Joint and Several Liability - Indemnity
Where one D only vicariously liable for the tort of another directly liable D, the first D may recover entire amount of any damages paid to P from second D actually responsible for injury.
–> A D who injures a P may be liable when another D subsequently injures the P and aggravates the injuries the P suffered from first D; Cts permit first D to obtain indemnity from second for portion of additional damages imposed on first D attributable to aggravating injury.
Miscellaneous Tort Concepts: Satisfaction and Release
Satisfaction occurs when more than one D liable for P’s injuries, but P recovers fully from one D.
- -> P may not seek further recovery from any other D; D who paid P may seek contribution or indemnity from other Ds.
- -> P permitted to release one D while expressly retaining rights against others (or by permitting a P to make a covenant not to sue with one D while proceeding against others).
Miscellaneous Tort Concepts: Survival of Action and Wrongful Death
Survival statutes provide that the death of the victim or TF no longer abates tort action.
–> Majority: survival of actions allowed only where P suffered personal injuries; minority: survival of action only where injury suffered is property damage.
Wrongful death: action by which either the heirs of decesased victim or personal rep of the victim’s estate may bring action against TF responsible for victim’s death.
–> recovery: pecuniary losses resulting from death (ex: wages the victim might have earned over his lifetime) and damages (ex: victi medical expenses or loss of wages)
Loss of Consortium: where a spouse is killed, the surviving spouse may bring a claim for intangible injuries of loss, comfort, companionship, etc
Defamation Issue: Types of Defamation - Slander
Defamation in spoken form.
To recover, P must prove special damages (specific economic losses that flow from the slander).
–> P can also receive reputational damages
Defamation Issue: Types of Defamation - Slander per se
Type of slander so harmful that it is presumed that P suffered damage.
Four types:
(1) slander that imputed to P the commission of crime involving moral turpitude or infamous punishment.
(2) allegations of the P having a loathsome disease
(3) slander which imputes to the P behavior or characteristics that are incompatible w/ the proper conduct of his business, profession, or office; and
(4) falsely impute unchastity to a woman
Defamation Issue: Types of Defamation - Libel v. Slander
Factors to distinguish libel v. slander (more of these: libel):
(1) permanence of form
(2) area of dissemination
(3) extent to which message was planned rather than spontaneous
Miscellaneous Tort Concepts: Vicarious Liability - Hospitals
Hospitals liable for indep contractor physician’s medical malpractice.
- -> Apparent agency context: hospital liable because they are employing indep contrac to perform services accepted by another in the reasonable belief that services were being rendered by hospital/servants.
- -> Agency by estoppel context: hospital liable because they represent to the patient that physician is their employee/agent and cause patient to justifiably rely on care and skill of apparent agent.
2 Factors for liability:
(1) the existence of conduct by hospital that would cause a reasonable person to believe that physician was agent of hospital; and
(2) reliance on that apparent agency relationship by P
Other factors:
(1) whether hospital actively advertised medical services and/or qualifications, availability, or affiliation of certain physicians w/ the hospital
(2) the control that the hospital has over the indep contrac
(3) whether physician is on call
(4) whether the forms signed by patient are printed on hospital letterhead
(5) the existence of a prior/ongoing treatment history between patient and physician
(6) whether hospital has attempted to notify the patient of the physician’s indep contrac status through signs, communications, and/or consent forms; and
(7) the P patient’s testimony regarding how they understood and perceived the physician’s status with regard to hospital
Intentional Tort Element: Voluntary Act
Something conscious or willed, as opposed to purely reflexive.
Intentional Tort Element: Causation
D’s act or a force set in motion by D causes P’s injury
Children and Intentional Tort
Age does not matter; when a minor has committed a tort with force, he is liable to be proceeded against as any other person would be.
Intentional Tort –> Trespass to Land Element: Intent
2 Circumstances
(1) D desired to enter the land/caused something to enter, or
(2) D knew that land entry was substantially certain to result
*Note: Mistake is not a defense
Intentional Tort –> Trespass to Chattels: Remedies
Damages
-Cost of repair, FM rental V, and potentially punitive damages (if D is a particularly bad actor - willful, wanton, or malicious conduct).
Replevin
-Get back property of which one has been wrongfully dispossessed
Intentional Torts –> Privileges/Defenses: Defense of Property - Recapture of Chattels
Reasonable, non-deadly force may be used to get back own personal property if (2 Requirements):
(1) The person seeking to recapture requests its return first or a request would be futile; and
(2) D is in hot pursuit
Negligence –> Duty Element: Nonfeasance/Negligent Omission - Definition and Types
Failure to intervene/confer benefit on the P.
Types: Duty to rescue; duty to control 3rd parties; duty to protect; govt entities
Negligence –> Duty Element: Nonfeasance/Negligent Omission - Rescues
No duty to rescue or aid, except:
- D’s tortious conduct creates need to rescue
- At CL, if person undertake rescue, even if she doesn’t have a duty to do so, she must act reasonably (but see: Good Samaritan statutes protecting rescuers unless reckless/intentional wrongdoing)
- SPECIAL RELATIONSHIPS of dependence or mutual dependence (carrier/passenger, innkeeper/guest, captain/passenger, drinking buddies).
Negligence –> Duty Element: Nonfeasance/Negligent Omission - Duty to Control 3rd Parties
General Rule: No duty to control conduct of third party to prevent harm to another, except:
–> when a special relationship exists between D and the 3rd party as to prevent harm to another (Exs: prisons - warn of escape, parents - warn of child violent tendencies, psychotherapist - warn specific party)
Providers of Alcohol: purveyor not responsible for DUI injuries
–> Dram Shop Acts: impose liability on establishments (typically not social hosts) when they know, or should know, a patron is drunk and that person drives while intoxicated and harms a 3rd party.
Negligent Entrustment: when D gives something dangerous to someone D knows/should know is not competent to handle it
Parents: under duty to exercise reasonable care to control minor child to prevent intentional harm to others or creates unreasonable risk of bodily harm to others if:
(1) parent knows/has reason to know he has ability to
control child
(2) parent knows/should know of necessity and
opportunity for exercising control
Employers: duty to exercise reasonable care in hiring employees
Negligence –> Duty Element: Nonfeasance/Negligent Omission - Duty to Protect
Generally, no duty to protect another from 3rd party criminal conduct unless:
(1) Special relationship: landlord/tenant, business/invitee
(2) Some jdxs: only find duty where special relationship AND prior similar incidents that make 3rd party criminal conduct particularly foreseeable
Negligence –> Duty Element: Nonfeasance/Negligent Omission - D is Govt Entity
Whether a duty is owed depends on function:
(1) Proprietary function (acting in private area): treated as any other D for duty analysis.
(2) Discretionary activity (using judgment and allocating resources/setting policy): cts will not find a duty
(3) Ministerial function: duty once govt has undertaken to act (ex: stop sign installed incorrectly leading to accident)
(4) Public duty doctrine: cts find no duty when professional rescuers fail to provide adequate response, except:
- -> There is a special relationship between P and the agency, OR
- -> The agency has increased the danger beyond what would otherwise exist
Negligence –> Wrongful Conception/Birth/Life
(1) Wrongful Conception: birth of healthy child after P took steps to avoid conception, often neg performed sterilization procedure.
(2) Wrongful Birth: birth of child w/ anomalies, disease, or disability when the physician failed to diagnose issues during pregnancy
- -> P must claim that she would have ended pregnancy if the physician had not neg failed to disclose
(3) Wrongful Life: child’s claim for having been born w/ anomalies, disease, or disability because the physician failed to diagnose issues during pregnancy
Negligence –> Breach/Standard of Care: Professionals - Medical Malpractice
Physicians are read to possess and use knowledge, skill, and training of other physicians in good standing in the relevant geographic community.
- -> Specialists: national standard
- -> General practitioners: locality standard
Lack of informed consent
- Traditional (battery): physician is liable for battery if no informed consent about risks (P consent negated because of lack of disclosure).
- -> Same result when there is a gross deviation from actual consent (P agrees to toe removal but foot removed instead)
-Traditional (neg): Physician must divulge risks that are customarily divulged by a physician in the same circumstances (professional rule)
- New trend - Standard of Materiality: Physician must divulge all material risks, meaning that a reasonable patient would want to know in deciding to undergo the procedure/treatment
- -> Failure to divulge material risk = malpractice IF P can show she would have refused the procedure/treatment if the physician divulged the risk
Negligence –> Breach of Duty/Standard of Care: P Burden
P burden is to prove every element of the prima facie case (preponderance of the evidence).
2 Types of Evidence Show Breach of Duty
(1) Direct evidence (rare) - an eyewitness or a recording of the accident while occurring.
(2) Circumstantial - evidence from which one can draw reasonable inference.
Negligence –> Breach of Duty/Standard of Care: Slip-and-Fall Cases
P must show:
(1) D was neg for not discovering and repairing the dangerous condition.
(2) The dangerous condition was present long enough that D should have noticed it.
Negligence –> Cause in Fact (AC) Element: Loss of Chance
Typically medical malpractice situations - not majority rule; P must show that but for the med malpractice, P would not have lost chance/died.
Negligence –> Cause in Fact (AC) Element: Market Share Liability
General Product (ex: pharmaceuticals) - Several Liability
- -> P cannot show which of a large group of neg Ds was responsible for manufacturing the product that caused her harm.
- -> P can sue those who might have caused her harm and each D is responsible based on its share of the market.
Negligence –> Proximate (Legal) Cause Element: Unforeseeable Extent of Harm
D owes duty of reasonable care only to foreseeable Ps.
–>Does not matter that P suffered more harm than one would foresee; D is responsible for full extent of harm as long as the TYPE of harm is foreseeable.
Eggshell Skull Rule
–> Take your victims as you find them; does not matter if P is susceptible to greater harm because of unique susceptibility like eggshell skull.
Negligence –> Proximate (Legal) Cause Element: Unforeseeable Type of Harm
Unforeseeable type of harm: Was the injury suffered within the risk created by D’s negligent conduct?
Negligence –> Damages Element: Compensatory Damages
Generally, return P to pre-injury position.
3 Elements Reqd:
(1) Type of damage must be foreseeable (no the extent, but the type of damage)
(2) Must be reasonably certain (not speculative); and
(3) Not avoidable
- ——-> Avoidable Consequences Rule: P must take reasonably steps after injury to not increase/exacerbate (mitigate) the injury.
2 Categories
(1) Special Damages: pecuniary medical costs, lost wages, and cost of repair.
- -> Can recover past, present, and future damages; however, future damages will be reduced to present value.
- -> Collateral Source Rule: the fact that P has insurance to cover some/all damages does not mean that D does not need to pay.
(2) General Damages: more controversial because damages are intangible and difficult to measure.
- -> pain and suffering
Tort Damages: Punitive Damages
Never recoverable for neg conduct; D’s acts must be more culpable than neg (willful, malicious, or reckless).
- -> Goal is to make example of D so he and others will not engage in same behavior.
- -> Wealth of D is highly relevant here.
- -> DPC limits the amount (generally, more than 10:1 ratio to compensatory damages unconst)
Products Liability –> Strict Products Liability in Tort: Defense - Assumption of the Risk
Where P has used the product w/ knowledge of the risk.
Intentional Torts - Incompetent TF
Analysis of mental state
–> The fact that a D is mentally incompetent does not preclude a finding that he possessed the intent to commit an intentional tort, but may affect whether such intent actually existed.
Express Assumption of Risk (Disclaimer Clause)
An express AoR disclaimer clause is valid if 3 criteria met:
(1) P is aware of terms;
(2) injury which occurs is w/in the risks of which P agreed to relieve D; and
(3) disclaimer not contrary to public policy
- —> Disclaimer contrary to PP when it is actually involuntary bc the service is a critical need and the P has no other effective option.
Professional Malpractice Cases
Whether a D has breached his duty to the P is a question of fact to be determined by the jury.
In most prof malpractice cases, the jury receives expert testimony as to whether the D has failed to act in accordance w/ general standards of practitioners in good standing.
- ——> However, in some instances no special knowledge is necessary to determine that a prof’l has performed inadequately.
- ——> That judgment can be made from the juror’s experience.
- ——> If the judge determines that the jury is competent enough to judge the reasonableness of a failure to serve a lawsuit then no expert testimony will be nec to prove breach.
