Torts Flashcards
MI: Caps on Medmal Damages
Non-economic damages:
- $280,000
- $500,000 if paralyzed, inability to procreate or take care of yourself, spinal/brain cord injury
NIED: Elements
- Defendant was negligent
2. Plaintiff did not suffer any physical trauma
NIED: Bystander Cases
- Plaintiff witnesses defendant’s negligence
- To a person closely related to them
- Plaintiff suffers emotional distress, which manifests itself in physical symptoms.
MBE: It must be immediate
MI: It can be fairly contemporaneous to the accident
Assault: What is an apprehension?
Knowledge or anticipation
False Imprisonment Elements and Exception for Merchants
- Defendant acts with the intent to confine or restrain the plaintiff to a bounded area
- Actual confinement occurs
- Plaintiff knows or is hurt by it
Exception: Merchant’s Privilege: if merchant has a reasonable belief as to theft, they can detain the shopper in a reasonable manner for a reasonable time.
IIED
- Defendant intentionally or recklessly
- Engages in extreme or outrageous conduct
- Results in severe emotional distress
Extreme/Outrageous: transcends social norms; repetitive
Trespass to Land
Physical invasion onto property of another, and defendant intends to be there
Trespass to Chattel
Intentional interference with personal property of another, and harm results
Remedy: Cost to repair
Conversion
Intentional interference with personal property of another, and significant damage results
MBE Remedy: FMV at time and place of conversion
MI Remedy: 3x actual damages and attorneys’ fees
Defenses to Intentional Torts: Consent
Plaintiff must have the capacity to consent (not minors, incompetent people, or intoxicated people).
Consent can be express or implied (i.e., by conduct)
Would a reasonable person in defendant’s position think there was consent?
Self-Defense
A person with a reasonable belief that they, or another, are in imminent danger, can use reasonably necessary force to protect against the harm.
Nuisance MBE
Interference with the use and enjoyment of someone’s property.
Nuisance MI
Can be private or public.
Private: substantial unreasonable interference with use and enjoyment of property.
Unreasonable is offensive/annoying to average person.
Requirements:
- You have property rights with respect to use and enjoyment
- The invasion causes significant harm
- The defendant’s conduct is the legal cause of the invasion
- Defendant’s conduct was intentional and unreasonable, or unintentional and otherwise negligent or reckless
Two types of private nuisance:
- Nuisance per se: nuisance at all times
- Nuisance in fact: nuisance by reason of the circumstances
Public: unreasonable interference with the health, safety, or morals of the community. Plaintiff must show he suffered a unique harm.
Privacy Torts
Appropriation
False Light
Disclosure
Intrusion
You have no privacy rights after you die.
Intrusion
- Defendant intentionally pries
- Into private place
- In a way that is offensive to a reasonable person
Exception: Consent
Appropriation
- Unauthorized use of plaintiff’s name or likeness
- To advertise a product in a commercial manner
Exceptions:
- Consent
- Newsworthy Exception: Published matter in public interest
Disclosure
- Defendant widely disseminates private information about plaintiff
- That would be highly offensive to a reasonable person
- Info is accurate and confidential
Exceptions:
- Consent
- Newsworthy Exception: Published matter in public interest
- Defamation privileges
False Light
- Defendant widely spreads facts about plaintiff
- Which places plaintiff in a false light
- That would be offensive to a reasonable person
- Statement must be objectionable - Consent
- Newsworthy Exception: Published matter in public interest
- Defamation privileges
Defamation Elements
- Defamatory statement about plaintiff
- Unprivileged Publication of statement to a third party
- Fault
- Damages
- Falsity
- For public concern and public figure
- Defamatory statement about plaintiff
- Statement is an assertion of fact
- Adversely affects reputation
- Plaintiff must be alive when statement is made
- Plaintiff can be a corporation
- Unprivileged Publication of statement to a third party
- Third party must understand the statement
- Only need an intent to publish, not an intent to defame
Defamation: Fault
Negligence: for private figures
Public figure: malice (knowledge of falsity or reckless disregard of its truth).
Defamation: Damages
MBE: Damages are presumed for libel. Slander is presumed if slander per se (one of the 4 categories).
MI: Whether libel or slander, damages are presumed if they are re: crimes of moral turpitude or unchaste (whether male/female).
In MI, if a plaintiff can prove the statements were made with malice, they can recover economic and non-economic damages (not punitive). Otherwise, only economic.
Defamation Defenses
- Consent
2a. Absolute Privilege: Statements between spouses; statements during judicial, legislative, an executive proceedings
2b. Qualified Privilege: statements made when candor is encouraged, and speaker has a reasonable belief their statement is accurate and only discusses matters relevant to situation.
Wild Animals
Strict Liability
Applies to all injuries from wild animals if they are a foreseeable result of having a wild animal.
- Safety precautions do not matter
Strict Liability: Who cannot recover for a strict liability tort?
Does not apply to trespassers (discovered or undiscovered). However, you cannot use animals to guard against trespassers.
- Product liability
- Animals
- Abnormally dangerous activity
Domestic Animals
MBE: No strict liability
MI: For all dog bites if you are legally allowed to be where you are, unless you adequately provoked the dog.
Abnormally Dangerous Activity
- Creates a foreseeable risk of harm even when reasonable care is exercised; and
- Not a matter of common usage in the community
Type of harm suffered must be the type that made the activity dangerous in the first place.
Trigger words: explosive, nuclear, blasting, dynamite, mining, etc.
Product Liability Elements
- Proper parties
- Any plaintiff
- Defendant must be a merchant (routinely deals in goods of the kind)
- Casual sellers or sellers who provide goods incidental to services are not merchants
- Every party in chain of distribution is liable
- MI: Only manufacturers can be liable - Product defective from time it leaves manufacturer’s hands
- Presumed if it travels through chain of distribution
- Types of defects: manufacturing defect; design defect; failure to warn
- Does not include unavoidably or unknowingly dangerous products
Government Regulations
- MBE: If it does not comply, it is presumed defective. If it does comply, it is evidence of non-defectiveness.
- MI: If it does comply, it is presumed not defective. If it does not comply, it is evidence of defective.
- Plaintiff makes foreseeable use (or misuse) or product
Product Liability: Manufacturing Defect
Product came out in an unintended manner and was more dangerous than expected
- Safety precautions do not matter
Product Liability: Design Defect
Product came out as intended, but there is an alternative design that is safer, practical, and cost-effective.
- Look at how dangerous it is and how avoidable it is
Product Liability: Failure to Warn
- There should be a warning if there is a hidden risk.
- If it is obvious, it generally does not need a warning
- Examine the specifics of the warning (i.e., size, color, font, etc.)
Evidence that the plaintiff failed to read the warning, or would have disregarded a proper warning is evidence to defeat the claim.
Malicious Prosecution
- Prior proceedings have been terminated in favor of plaintiff
- There was a lack of probable cause in those proceedings
- Malice is present (purpose other than securing a proper adjudication)
- MI: Special injury to plaintiff
Intentional Interference with Business Relations
- Valid relationship exists
- Defendant knew of it
- Defendant intentionally coerces a breach or termination
- Defendant was unauthorized to interfere
- Defendant’s interference resulted in damages
Remedies
- Economic loss
- Punitive damages if defendant acted maliciously
- Injunction
Misrepresentations
- Defendant makes a material misrepresentation
- Knew the statement was false or said it with reckless indifference of its truth
- Defendant intended to induce reliance on the misrepresentation
- There was justifiable reliance by the plaintiff
- Plaintiff suffered pecuniary damage
When does J&S liability apply in Michigan?
Medmal cases and products liability.
- Otherwise, MI applies several liability
When does indemnification usually come up?
Common with various liability or products liability.
Vicarious and Direct Liability: Employers
Employers are vicariously liable for torts of employees if the tort is within scope of employment.
Intentional torts are usually outside scope unless done for purpose of serving employer of if they were foreseeable.
An employer can also be directly liable for their own negligence in failing to hire, fire, or supervise
Vicarious Liability: IC
A principal is generally not liable for his IC. Two exceptions:
- Nondelegable duty
- Inherently dangerous activity
- Direct liability
Government Immunity: Agencies
Immune from tort liability if the agency is engaged in the exercise/discharge of a government function
Making use of your land to provide a park for members of the public
is a governmental function
Government Immunity: Agents
Immune from liability if it occurred in the scope of employment, as long as three things are met:
- Agent acting or reasonably believes they are acting within scope of authority
- Agency is engaged in exercise of a government function
- Agent’s conduct does not amount to gross negligence that is the proximate cause of the injury
Gross negligence: reckless conduct that demonstrates a substantial lack of concern for whether an injury occurs
Government Immunity: Public Officials
Elected officials of all levels of government are immune from tort liability if they are acting within the scope of their authority.
Ex: judges, legislators, mayors, etc.
When does government have an affirmative duty to act?
- Municipality assumed a duty to act
- Agent had knowledge that inaction could lead to harm
- Some direct contact between plaintiff and agent
- Plaintiff justifiably relied on municipality’s assumption of duty
Pothole/Highway Exception
- Defect
Public buildings: gov’t is obligated to repair/maintain public buildings
Highways: extends to improved parts of highway (designed for vehicles).
- Knowledge
- Government must know of defect and have a reasonable time to repair it
- Public building: presumed if the defect existed to an ordinary observant person for 90 days or longer before injury (30 days for highway) - Notice
Injured person must serve notice in a timely manner — generally 120 days from injury.
Notice should specify location and nature of defect, injury sustained, and names of any known witnesses
