Torts Flashcards
Intentional Torts
Prima Facie Case
To etablish a prima facie case for any intentional tort, the Plaintiff must prove:
(1) An act by the Defendant;
(2) Intent by the Defendant; and
(3) Causation of the result to the Plaintiff from the Defendant’s act.
Intentional Torts
Hypersensitivity of the Plaintiff
Is ignored (disregarded).
NOTE: Always assume Plaintiff is a “reasonable person”.
Intentional Torts
No Incapacity Defenses
Ignore any lack of capacity defenses for intentional torts.
- Children
- Insane people
- Developmentally disabled people
- Intoxicated people (alcohol/drugs)
“Defendant is not liable because he lacked legal capacity” - WRONG
Intentional Torts
“Act by Defendant”
The act required is a volitional movement by defendant
Intentional Torts
“Intent”
The intent that is relevant for purposes of intentional torts is the intent (desire) to produce the legally forbidden consequences that are the basis of the tort.
* The Defendant does not need to intend the specific injury that results.
Intentional Torts
“Transferred Intent”
The transferred intent doctrine applies when the Defendant intends to commit a tort against one person but instead:
(1) Commits a different tort against that person;
(2) Commits the same tort as intended but against a different person; or
(3) Commits a different tort against a different person.
The intent to commit a certain tort against one person is transferred to the tort actually committed or to the person actually injured for purposes of establishing a prima facie case.
Intentional Torts
Limitations on Use of Transferred Intent
Transfered intent may be invoked only if both the tort intended and the tort that results are one of the following:
(1) Assault
(2) Battery
(3) False Imprisonment
(4) Trespass to land
(5) Trespass to chattels
Intentional Torts
“Causation”
The result must have been legally caused by the Defendant’s act or something set in motion by the defendant. Causation is satisfied if the defendant’s conduct was a substantial factor in bringing about the injury.
Most cases - causation will not be at issue because it’ll be obvious.
Intentional Torts
Battery
(1) Harmful or offensive contact;
(2) Contact must be with the Plaintiff’s person.
(3) Damages not required.
All intentional torts also requires proof of intent and **causation*
(1) An act by the defendant that brings about harmful or offensive contact to the plaintiff’s person;
(2) Intent by the defendant to bring about the harmful or offensive contact; and
(3) Causation.
Battery
“Harmful or offensive contact”
- Harmful if it causes actual injury, pain, or disfigurement.
- Offensive if it would be considered (unpermitted) offensive to a reasonable person.
Battery
“Contact must be with the Plaintiff’s person”
- Contact includes anything connected to the Plaintiff (Purse, clothing, item P is holding) - Extended Personality Rule.
- Contact can be direct (striking the plaintiff) or indirect (setting up a trap)
- Contact need not be instantaneous (putting poison in your coffee☠️☕️)
Battery
Damages Not Required
The Plaintiff can recover nominal damages even if actual damages aren’t proved. The Plaintiff may recover punitive damages for malicious conduct.
Intentional Torts
Assault
(1) Act by the Defendant creating a reasonable apprehension in the Plaintiff;
* Third Restatement - “Plaintiff must anticipate a battery”
(2) Of an immediate battery (harmful or offensive contact to the Plaintiff’s person)
(1) An act by defendant causing a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff’s person,
(2) Intent by defendant to bring about in plaintiff apprehension of that contact, and
(3) Causation.
Assault
“Reasonable Apprehension”
The apprehension (knowledge) of harmful or offensive contact must be reasonable. Courts generally will not protect a Plaintiff against exaggerated fears of contact.
BUT - Defendant will be liable if he knows of the Plaintiff’s unreasonable fear and uses it to put the plaintiff in apprehension.
Assault - “apprehension”
Fear Not Required
Fear is not required - don’t confuse apprehension w/ fear or intimidation.
Assault - “apprehension”
Knowledge of Act
Plaintiff must have been aware of the threat from the Defendant’s act, although the Plaintiff need not be aware of the Defendant’s identity.
Assault - “apprehension”
Apparent Ability Sufficient
If the Defendant has the apparent ability to commit a battery, this will be enough to cause a reasonable apprehension.
Assault - “apprehension”
Effect of Words
Words alone lack immediacy (no matter how violent). For the Defendant to be liable, the words must be coupled w/ conduct.
- “In 15 seconds I’m going to punch you in the face” - this is not assault because it’s words alone.
However, words can negate reasonable apprehension.
Example: Defendant shakes their fist but states they are not going to strike.
Example: Holding a gun and saying “you just wait until tomorrow” - not immediate battery. So, no assault.
Assault - “immediate battery”
Requirement of Immediacy
The Plaintiff must be apprehensive that they are about to become the victim of an immediate battery.
Assault
Damages Not Required
The Plaintiff can recover nominal damages even if actual damages are not proved. Malicious conduct may permit recovery of punitive damages.
Example: Scenario in which Defendant cannot actually commit the battery (he has an unloaded gun) but makes empty threats stating he’s going to shoot Plaintiff. Reasonable apprehension looks at Plaintiff’s knowledge - if P was aware the gun was unloaded, then they know there can’t be any battery so there’s not assault.
If P has concrete information that the gun is loaded (when it is not), then it would be a battery.
If P is completely unaware whether the gun is loaded or unloaded - court will look to the reasonable person standard - would a reasonable person apprehend/anticipate that a battery was going to happen - likely yes.
Intentional Torts
False Imprisonment
(1) An act or omission on the part of the Defendant that confines or restrains the Plaintiff;
(2) The Plaintiff must be confined to a bounded area;
(3) Damages not required.
False Imprisonment
Methods of Confinement or Restraint
Sufficient acts of restraint include:
(1) Physical barries;
(2) Physical force directed against the Plaintiff, immediate family, or personal property;
(3) Direct threats of force (if you leave the room I’m going to shoot you);
(4) Indirect or implied threats of force;
(5) Failure to release the Plaintiff when under a legal duty to do so (taxi driver refusing to let a customer out);
(6) Invalid use of legal authority (false arrest)
(7) Omission (failure to act) can be an act of restraint when there’s a preexisting duty.
Insufficient acts of restraints include:
(1) Moral pressure;
(2) Future threats.
NOTE: Hypersensitivity of Plaintiff is ignored. “If you leave this room in the next 30 minutes, I’ll be really sad” and you stay in the room because you’re a deeply considerate person. Not a valid false imprisonment claim
Omission Failure to Act Ex: Plaintiff w/ wheelchair flying from LAX > CHI and flightcrew is aware P is on the flight but once they land, flightcrew does nothing to help P off the plane. They don’t lock the door, but their failure to summon a wheelchair constitutes a valid false imprisonment claim.
False Imprisonment
Time of Confinement
It is irrelevant how short the period of confinement is.
False Imprisonment
Awareness of Confinement
The Plaintiff must know of the confinement or be harmed by it.
D locks P’s bedroom door while P is asleep, but unlocks the door before P wakes up. P cannot recover for false imprisonment.
False Imprisonment
“Bounded Area”
For an area to be “bounded,” freedom of movement must be limited in all directions. There must be no reasonable means of escape known to the Plaintiff. The bounded area can be vague - doesn’t have to be particularly defined
- Note: An area is not considered bounded if there’s a reasonable means of escape that the Plaintiff can reasonably discover.
False Imprisonment
Considered a Bounded Area even if there is a way out, but it is Unreasonable
(1) Dangerous;
(2) Disgusting;
(3) Humiliating;
(4) Hidden.
False Imprisonment
Damages Not Required
The Plaintiff can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if the Defendant acted maliciously.
Intentional Torts
Intentional Infliction of Emotional Distress (IIED)
(1) An act by the Defendant amounting to extreme and outrageous conduct; and
(2) The Plaintiff must suffer severe emotional distress.
(3) Actual damages required.
IIED
“Extreme and Outrageous Conduct”
Extreme and outrageous conduct if it exceeds all bounds of decency tolerated in a civilized society.
- Mere insults are not considered outrageous.
- But, insults + threats, then the conduct can become extreme and outrageous conduct.
IIED
Examples of Extreme and Outrageous Conduct
Conduct that is not normally outrageous may become so if it:
(1) Continous in nature;
* Debt collection by harassment - calling at 3am making threats to repossess the car, claiming they need the money by the next day. (Did it exceed all the bounds of decency? Debatable) But, if they called repeatedly, persistent then it becomes outrageous.
(2) Committed by a certain type of Defendant (common carriers or innkeepers); or
* Transportation companies and hotels are obligated to treat customers w/ courtesy and respect. So when they deliberately do something w/ the goal of causing distress it will be considered extreme & outrageous.
(3) Directed toward a certain type of Plaintiff in a fragile class (children, elderly, pregnant women).
* Targeting a 5 year old and deliberately trying to distress him with vulgar words. OUTRAGEOUS.
* Same goes for elderly.
* You must know the woman is pregnant to trigger this rule.
(4) Targeting known sensitivity is considered outrageous conduct.
* D having advanced knowledge of P’s peculiar sensitivity and triggering it. Ex. Coworker knowing about their colleagues phobia then purposely triggering it.
IIED
“Severe emotional distress”
Plaintiff has no obligation to prove the severe emotional distress in any particular way.
“Plaintiff was mildly annoyed by D’s conduct, so she sued for IIED”. No claim because the distress must be severe.
IIED
Requisite Intent
Unlike for other intentional torts, recklessness as to the effect of the Defendant’s conduct will satisfy the intent requirement.
IIED
Actual Damages Required
Actual damages (severe emotional distress), not nominal damages, are required. Proof of physical injury generally isn’t required. The more outrageous the conduct, the less proof of damages required.
IIED is the only intentional tort to the person that requires damages.
IIED
Causation in Bystander Cases
When the Defendant’s conduct is directed at a third person, and the Plaintiff suffers severe emotional distress because of it, the Plaintiff may recover by showing either the prima facie case elements of emotional distress; or that:
(1) they were present when the injury occurred;
(2) the distress resulted in bodily harm or the Plaintiff is a close relative of the third person; and
(3) the Defendant knew these facts.
IIED is a fallback tort position. If another alternative in the Q is a tort that will also allow the P to recover, it should be chosen over IIED.
Trespass to Land
(1) Physical invasion
(2) Of land
* By person or object that is tangible
* Awareness of boundary NOT required, but deliberate act is required
* Damage NOT required
* Air above/soil beneath to reasonable distance
* Claimant must be person with right to possession of property, does not necessarily need to be the owner
Trespass to Chattels
Intentional interference with Plaintiff’s personal property that warrants Defendant pay damages
* Interference = directly damaging OR dispossession
* Intent to trespass NOT required but intent to do the act of interference required
* Defendant’s mistaken beleif they own the chattel is NO defense
* Actual damages NOT required
Small harm (compared to Conversion)
Conversion
Intentional interference with Plaintiff’s personal property so serious that warrants Defendant pay property’s FULL value
* Act of conversion = Theft; Wrongful transfer; Wrongful detention; Substantially changing; Severely damaging; Misusing chattel
* Intent to do the act of interference required
* Defendant’s mistaken beleif they own the chattel is NO defense
* Only tangible personal property and intangibles that have been reduced to physical form (promissory note) are subject to conversion
* Plaintiff may recover damages (FMV at time of conversion) or possession (Replevin)
Big harm (Compared to trespass to chattels)
Defense to Intentional Torts
Consent
- Defense to all intentional torts
- Plaintiff must have legal capacity: not drunk, disabled, children
- Person with limited capacity can consent but only to things within scope of their understanding
- Express Consent = Words giving permission (Oral or Written) unless obtained by Fraud, Duress, or if Mistake if defendant knew of and took advantage of the mistake
- Implied Consent = A reasonable person would infer from custom and usuage (Hockey) OR body language consent (Private setting on a date)
- Scope of Consent = exceeding scope results in liability (Doctor gives you a nose job when you said “Yes” to getting only a knee surgery)
Defense to Intentional Torts
Protective Privileges (3 Types & Requirements)
Types:
* Self-Defense
* Defense of Others
* Defense of Property
Requirements:
(1) Threat from Plaintiff
(2) Defendant must respond in heat of the moment, i.e., while threat is in progress or imminent (Not too soon/late)
(3) Defendant must have reasonable belief the threat is genuine
(4) Amount of force when the preconditions are met, is only the force necessary to the circumstances
- 🔥 with 🔥 not 💣
- 👋 with 👋
- 🔪 with 🔫
- Majority: No duty to retreat
- No use of deadly force to protect property🏠
- Presumption that home intruder poses a deadly threat unless visibily not deadly threat
- Reentry onto land: Common law = one could use force to reenter land only when an intruder came into possession tortiously (trespass). Modern law = ejectment for recovering possession of real property. Self-help not allowed.
Defense of Property
Shopkeeper’s Privilege
- Allows a merchant or any store owner to detain a customer if owner has a reasonble belief customer has shoplifted property
- If detention is limited to a reasonable amount of time, manner, and suspicion, NO liability for false imprisonment even if customer is innocent
Defense to Only Property Torts!
Necessity Defenses (2 Types)
- Only apply to (1) Trespass to land; (2) Trespass to chattel; (3) Conversion
-
Types:
(1) Public Necessity: Emergency situation and Defendant commits one of the property torts during the emergency to protect the community as a whole; Absolute defense!
(2) Private Necessity: Defendant acts in emergency to protect own interest. Action was to prevent serious harm to a limited number of people. - Actor must pay compensatory damages for any injury they cause unless the act was to benefit the property owner
- NOT liable for nominal/punitive damages because Defendant had a privilege to enter
- Can remain as long as emergency continues
- Limited or qualified defense!
This privilege trumps a property owner’s right to defend his property
(4) Traditional Elements
Neglience
(1) A duty on the part of the Defendant to conform to a specific standard of conduct for protection of the Plaintiff against unreasonable risk of injury;
(2) A breach of that duty by the Defendant
(3) The breach is the actual and proximate cause of the Plaintiff’s injury;
(4) Damages.
Duty - Questions of law
Breach - Predominately about facts
Causation - Logic and policy
Damages - Facts and law
Negligence - Duty
Duty of Care
A duty of care is owed to all foreseeable 👀Plaintiffs. If the Defendant’s conduct creates an unreasonable risk of injury to persons in the position of the Plaintiff, the general duty of care extends from the Defendant to the Plaintiff.
The extent of the duty is determined by the applicable standard of care.
When confronted w/ a negligence questions, you should ask:
(1) To whom do you owe a duty?
(2) What is the applicable standard of care (risk reduction)?
Duty is a legally imposed obligation to take risk reducing precautions for benefit of others.
Negligence - Duty
To whom do you owe a duty?
Only to foreseeable victims within the “zone of danger”.
Note: Look to the distance of where the victim was initially - were they in the zone of danger?
You do not owe a duty to unforeseeable victims. Unforseeable victims will always lose negligence claims.
Negligence - Duty
Rescuers are Foreseeable
A rescuer is a foreseeable Plaintiff when the Defendant negligently put themselves or a third person in peril (danger invites rescue).🏃⛑️
Note: Rescuers do not have to be in the zone of danger because danger invites rescue - once the catastrophe occurs rescuers will go into the zone to help.
Not firefighters or police officers
Negligence - Duty
Firefighter’s Rule
Firefighters 🚒 and police officers👮 are barred by the “firefighter’s rule” from recovering for injuries caused by the inherent risks of their jobs - even if the risk was created by the negligence of the property possessor.
Negligence - Duty
Intended Beneficiaries of Economic Transactions
A third party for whose economic benefit a legal or business transaction was made (i.e beneficiary of a will) may be a foreseeable Plaintiff.
Negligence - Duty
What is the Applicable Standard of Care?
How much risk reduction is required?
- All persons owe a duty to behave with the same care as a hypothetical reasonably prudent person acting under similar circumstances.
- The reasonably prudent person standard is an objective standard, measured against what the average person would do.
- A defendant’s mental deficiencies and inexperiences are not taken into account. (low intelligence is no excuse).
- Someone who is developmentally disabled will be held to the standard of a reasonably prudent person.
- Intoxication/on drugs not an excuse.
- Uniformed people not an excuse.
- Uneducated people not an excuse.
- Amature, clumsy not an excuse.
- EVERYONE NEEDS TO BEHAVE LIKE A REASONABLY PRUDENT PERSON (RPP)
Negligence - Duty
Exception for Superior Skill or Knowledge
While the reasonably prudent person standard sets a minimum level of care, a Defendant who has knowledge or experience superior to that of an average person is required to exercise that superior skill or knowledge.
The Defendant will be measured against the hypothetical reasonably prudent person with same superior skill or knowledge.
Ex. Professional race car must drive his personal car like a reasonably prudent person with the added skill and knowledge of a professional race car driver - so if his car goes into a skid he must use everything he knows about controlling a vehicle in a skid.
Negligence - Duty
Exception for Physical Characteristics Where Relevant
The reasonably prudent person is considered to have the same physical characteristics as the Defendant if those physical characteristics are relevant to the claim.
NOTE: Physical characteristics are usually irrelevant unless it is relevant in the problem! All should act like a reasonably prudent person.
Example - If the Defendant is blind, and the characteristic is relevant to the claim then the standard of care becomes a reasonably prudent person who cannot see.
Example - If the Defendant is 6’8 and height is relevant in the problem, then the standard of care becomes a reasonably prudent person who is 6’8.
Negligence - Special Standard of Care
Children
A child under five years old is usually without the capacity to be negligent (no standard of care)
Age 5-18: Children are held to the standard of a hypothetical child of like age, experience, and intelligence acting under similar circumstances. This is a subjective test. Pro-defendant standard of care. (So every child is going to have a different standard of care)
* Exception: Children engaged in potentially dangerous adult activities may be required to confrom to an “adult” standard of care - Reasonably prudent person.
—- (“Adult activity” - Operating a motorized vehicle - car/motorcycle; includes farm equipment - tractor; jet skis; snowmobiles)
Negligence - Special Standard of Care
Professional
Malpractice Claims
A professional is required to possess the knowledge and skill of an average member (conform to their colleagues) of the profession or occupation in good standing. Empirical standard (research/fact based)
NOTE: For malpractice claims an expert witness is often used to educate the jury on the professional custom.
* For expert witnesses, most courts apply a national standard of care - it’s assumed the standard of care is uniform. –Geographically the expert witness can be from anywhere, but they have to come from the same specialty.
Custom of the profession sets the standard of care
Professionals must provide the same care as an average member of the profession providing similar professional services.
Negligence - Special Standard of Care for Professionals
Duty to Disclose Risks of Treatment
A doctor has a duty to disclose the risks of treatment to enable a patient to given an informed consent. A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent on learning of the risk.
Malpractice Claims
Negligence - Special Standard of Care
Possessors of Land
Premises Liability Claims
Under the traditional rule followed in many states, the duty owed a Plaintiff on the premises for dangerous conditions on the land depends on the Plaintiff’s status as:
(1) Unknown trespasser;
(2) Known trespasser;
(3) Licensee; or
(4) Invitee.
Note: Possessor is not always the owner.
Note: If Plaintiff is injured from activities conducted on the land, the special rules for land does not apply. Only the ordinary prudent person standard of care would apply.
Ex. Plaintiff being a guest in someone’s home and getting burned by hot tea - this is not a dangerous condition on the land, so just the RPP standard of care would apply.
Negligence - Special Standard of Care Owed by Possessors or Land
Unknown Trespassers
Premises Liability Claims
No duty is owed to an undiscovered trespasser.
Plaintiff came onto the land without the possesor’s permission and possesor was unaware the trespasser was on their land - no duty!!
Negligence - Special Standard of Care Owed by Possessors or Land
Known Trespasser
Premises Liability Claims
As to discovered or anticipated trespassers, the land possessor must warn of or make safe any conditions that are:
H A C K
(1) Highly dangerous (involving risk of death or serious bodily harm);
(2) Artificial condition (man-made);
(3) Concealed (must be hidden); AND
(4) Known to the land possessor in advance.
Possessor has a duty only if all four conditions are present.
Possessor only has a duty for known, man-made death traps!
If there is a pattern of trespassing in the past - then there’s anticipated trespassing. (i.e. If people frequently cut through your backyard)
Negligence - Special Standard of Care Owed by Possessors or Land
Licensee
Premises Liability Claims
A licensee is one who enters land with permission for their own purpose or business, but without financial benefit to possessor. The land possessor has a duty to warn of or make safe hazardous conditions that are:
(1) Concealed; and
(2) Known to the land possessor in advance.
Land possessor must exercise reasonable care in the conduct of “active operations” on the property. The possessor has no duty to inspect or repair.
Typical Licensees:
* Social guests
* Uninvited indviduals walking up to your front door have implied consent by the custom of the community. Unless there are signs “no trespassing/soliciting” or the gates are locked.
Possessors must protect licensees from all known traps.
Negligence - Special Standard of Care Owed by Possessors or Land
Invitees
Premises Liability Claims
Invitees enter onto the land in response to an invitation by the possessor of the land for financial benefit of the possessor (purpose connected w/ the business of the land possessor or enter as members of the public for a purpose for which the land is held open to the public). An invitee will lose invitee status if they exceed the scope of the invitation (entering “employees only” room)
The possessor owes a duty to invitees regarding hazardous conditions that are:
(1) Concealed; and
(2) Known by possessor or could have discovered through reasonable inspection
* Reasonably inspections take place at reasonable intervals of time and are reasonably thorough.
Typical Invitees:
* Includes when open to public at large.
* Customers of a business
* Going to the airport to pick up your friend (you’ll be considered an invitee even if you didn’t spend any money because airport is open to the public)
Possessor must protect all reasonably knowable traps on the land.
Ex. If a store has a reasonably prudent person inspect their property every 3-months, and a hazardous condition comes about between the intervals and possessor was unaware - there will be no liability for it because there was reasonable inspection. Reasonable interval of time will depend on what the facility is; custom of other similar property possessors.
Negligence - Special Standard of Care Owed by Possessors or Land
How To Satisfy Premises Liability Duty
Premises Liability Claims
Possessor can satisfy their premises liability duty of care by the following measures:
(1) Eliminate the hazardous condition
- Repair;
- Replace; or
- Remove.
(2) Warning about the hazardous condition
- Warning must be sufficiently complete so that it communicates the nature of the danger to the person who receives the warning, but it must be a form of warning that will keep the danger present in their mind - Like a warning sign - likely the correct answer.
Negligence - Special Standard of Care Owed by Possessors or Land
Traspassing Children
Attractive Nuisance Doctrine
Most courts impose on a landowner the duty to exercise reasonably prudent care under circumstances to protect children from artificial hazards on the land.
To establish the doctrine’s applicability, the Plaintiff must show:
(1) Dangerous condition on the land that the owner is or should be aware of;
(2) The owner knows or should know that children might trespass on the land;
(3) The condition is likely to cause injury (it is dangerous because of the child’s inability to appreciate the risk);
(4) The expense of remedying the situation is slight compared w/ the magnitude of risk.
If there’s something attractive on your land, you must child proof.
Ex. If it’s unlikely that a child would trespass onto the land - possessor has no duty to eliminate conditions that is likely to cause injury. And if a child happens to come onto the land - possessor has no liability because they acted reasonably under the said circumstances.
Ex. If there’s something on the land that would draw the children - suburban neighborhood with a swingset, and you live across the street from an elementary school. Would you anticipate there’ll be children trespassing? YES. Then, that means as a reasonable prudent person you must exercise reasonable care that the swingset itself is safe and any other hazards on your property has been eliminated/made safe.
Negligence - Special Standard of Care Owed by Possessors or Land
Duty Owed to Users of Recreational Land
A landowner who permits the general public to use their land for recreational purposes without charging a fee is not liable for injuries suffered by a recreational user, unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.
Negligence - Special Standard of Care Owed by Possessors or Land
Duty of Possessor to Those Off Premises
Generally there is no duty to protect someone off the premises from natural conditions on the premises however, there is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land.
* Also, one must carry on activities on the premsies so as to avoid unreasonable risk of harm to others off the premises.
Negligence - Special Standard of Care Owed by Possessors or Land
Duties of Lessor and Lessee of Realty
The lessee has a generaly duty to maintain the premises. The lessor must warn of existing defects of which they are aware or have reason to know, and which they know the lessee is not likely to discover on a reasonable inspection. If the lessor covenants to repair, they are liable for unreasoanbly dangerous conditions. If the lessor volunteers to repair and does so negligently, they are liable.
Negligence - Special Standard of Care Owed by Possessors or Land
Duties of Vendor of Realty
A vendor must disclose to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know, and which the vendor knows the vendee is not likely to discover on a reasonable inspection.
Negligence Per Se - Statutory Standards of Care
Negligence Per Se - Statutory Standards of Care
Plaintiff must prove a clearly stated specific duty imposed by a statute providing for criminal penalties may replace the more generaly common law duty of due care if:
(1) Plaintiff is within the protected class;
(2) Statute was designed to prevent the type of harm suffered by the Plaintiff.
Class of person/class of risk
Protected class of persons can be: Children, customers, patients, pedestrians, visitors, occupants of the building, etc. (must be a subset).
Negligence Per Se - Statutory Standards of Care
Establishing Negligence Per Se
(1) Legal - Plaintiff must establish the statute is legally appropriate;and
(2) Factual - Plaintiff must show Defendant violated the statutory command.
Negligence Per Se - Statutory Standards of Care
Exceptions to Statutory Standard of Care
Violation of some statutes may be excused where compliance would cause more danger than violation or where compliance would be impossible.
Ex. Dave driving on the road swerves into the other lane to avoid hitting a child who runs into the road. Dave hits Pete who was travelling on the opposite road. Pete brings a negligence per se claim stating the statute reflects drivers may not cross the yellow line. Court will not apply the statute even if Pete meets the two prong standard of care test because here obeying the statute - he would have hit the child.
Ex. Dave has a heartattack while driving his vehicle and he runs a red light hitting Pete a pedestrian. Pete wants to use the red light statute as a standard of care. The exception applies - compliance was impossible.
Special Negligence Duties
Affirmative Duties to Act
Generally, one does not have a legal duty to act. There is no duty to rescue.
* If one chooses to act, they must do so as a reasonably purdent person under the set circumstnaces.
Affirmative Duties to Act Exception
Special Relationship Between Parties
A special relationship between the parties (parent-child) may create a duty to act. Similarly, common carriers-guests, innkeepers-guests, shopkeepers-customers and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons.
- Places of public accomodation have a duty to prevent injury to guests by third persons.
Mordern view: Expanded the concept of special relationship to any people who are not strangers. Mention this in the essay, but apply the traditional rule for MC.
Affirmative Duties to Act Exception
Peril Due to Own Conduct
One has a duty to assist someone they have negligently or innocently placed in peril.
Normally no duty to rescue if one did not cause the peril.
Affirmative Duties to Act Exception
Assumption of Duty by Acting
One may assume a duty to act by acting. Once the person undertakes to aid someone, they must do so with reasonable care.
* If the person who voluntarily and gratuitously rescues and does so in an unreasonable or negligent manner and causes harm, that person will be liable for his or her error.
Exception: Many states have enacted Good Samaritan statutes which insulate negligent rescuers from liability. The statute exempts doctors, nurses, etc., from liability for ordinary, but not gross, negligence.
* But, on the exam assume there is no Good Samaritan law, unless the call of the question explicitly states the statute applies.
Affirmative Duties to Act Exception
Duty to Prevent Harm from Third Persons
Generally, there is no duty to prevent a third person from injuring another.
* An affirmative duty may be imposed, however, if one has the actual ability and authority to control a person’s actions, and knows or should know the person is likely to commit acts that would require exercise of this control.
Affirmative Duties to Act Exception
If There’s an Affirmative Duties Exception, the Duty Owed Is:
Not duty to rescue, but duty to act reasonably under the circumstances.
Ex. Inkeepers-guest relationship - If the hotel is on fire, the hotel has a duty to call 911 or give the guests instruction. The hotel does not have a duty to go into the burning hotel room to rescue the guest.
Ex. If a child is drowning in a lake, and you are the cause, but you don’t know how to swim - there is no duty for you to risk your life by going into the lake to save the child. But you must seek help - call 911, throw a rope, etc. to act reasonably under the circumstances.
Standards of Conduct
Common Carriers and Innkeepers
Common carriers and innkeepers are held to a very high degree of care, meaning they are liable for slight negligence.
* The Plaintiff must be a passenger or guest.
Standards of Conduct
Automobile Driver to Guest
A guest in an automovile is owed a duty of ordinary care.
* In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.
Standards of Conduct
Bailment Duties
In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not title - Bailor loaning their car to the Bailee.
Duties owed by Bailee - Bailee’s standard of care depends on who benefits from the bailment: (1) Sole benefit of the bailor bailment, there is a low standard of care; (2) Sole benefit of the bailee bailment, there is a high standard of care; (3) Mutual benefit of bailment, there is ordinary standard of care.
Duties Owed by Bailor - (1) Sole benefit of the bailee bailment, the bailor must inform the bailee of known, dangerous defects in the chattel. (2) Bailment for hire, the bailor must inform the bailee of chattel defects of which they are or should be aware.
Standards of Conduct
Emergency Situations
A Defendant must act as a reasonably prudent person would under the same emergency conditions. The emergency is not to be considered, however, if it is of the Defendant’s own making.
Negligent Infliction of Emotional Distress
Negligent Infliction of Emotional Distress (Near Miss Cases)
Pure Emotional Claim
Defendant creates a **foreseeable risk of physical injury **to the Plaintiff. The Plaintiff usually must satisfy two requirements to prevail:
(1) Plaintiff must be within the “zone of danger”; and
* Plaintiff will be considered to be within the zone of danger of the Defendant’s negligent acts when the Plaintiff is sufficiently close to the Defendant such that they are subject to a high risk of a physical impact.
(2) Plaintiff must suffer physical symptoms from the distress.
* Most courts require that Plaintiff suffers subsequent physical symptoms from the distress.
In NIED, there is no physical injury but it’s a close call - near miss.
Plaintiff’s fear of almost getting injured.
Negligent Infliction of Emotional Distress
Bystander Case
A bystander outside the “zone of danger” of physical injury who sees the Defendant negligently injuring a third party can recover damages for emotional distress if:
(1) Plaintiff and the person injured by the Defendant are closely related; and
* Spouse, parent, minor child (strictly limited)
(2) Plaintiff was present at the scene of the injury and personally observed or perceived the event.
* Must have seen it in real-time - contemporaneous witness
Plaintiff’s grief/sadness witnessing their loved ones getting injured.
Negligent Infliction of Emotional Distress
Business Relationship Cases
Plaintiff can recover if highly foreseeable that careless performance by Defendant will produce emotional distress.
(1) Patient/medical laboratory - Erroneous conclusion that the patient has cancer.
(2) Customer/Mortuary - Losing remains/cremating when you chose embalming. Customer is already emotionally fragile and if the mortuary does their job carelessly, it’s highly foreseeable this will produce emotional distress.
(3) (No recovery) Customer/dry cleaner - Blouse is severly damaged and customer has a meltdown. Even if the reaction is sincere, this is not highly foreseeable.
Breach of Duty in Negligence
Breach of Duty
When the Defendant’s conduct falls short of that level required by the applicable standard of care owed to the Plaintiff, the Defendant has breached their duty. Breach can be an affirmative act or omission.
Breach of Duty in Negligence
Custom or Usage
When the standard of care is “reasonable prudence,” evidence of the custom or usage of others may be used to establish how a reasonable person sohuld have behaved under the circumstances.
However, this evidence is not conclusive on the question of whether a certain conduct amounted to negligence. Even if certain behavior is custom in an industry, a court may find that the entire industry is acting negligently.
Breach of Duty in Negligence
Violation of Statute - Negligence Per Se
Where the duty of care is set by a statute under the rules that govern using statutes in negligence litigation, proof of violation of the statute is conclusive evidence of breach of duty. This is known as negligence per se. Causation and damages must still be established by the Plaintiff.
Breach of Duty in Negligence
Res Ipsa Loquitur Doctrine
In some cases, the very occurence of an event may tend to establish a breach of duty. The res ipsa loquitor doctrine requires the Plaintiff to show that:
(1) The accident causing the injury is a type that is normally associated with negligence; and
(2) The accident would normally be due to negligence of someone in Defendant’s position.
- This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the Defendant.
Used by Plaintiff without information about Defendant’s breach.
Breach of Duty in Negligence
Effect of Res Ipsa Loquitur
Where Res Ipsa Loquitor is established, the Plaintiff has made a prima facie case and no directed verdict may be given for the Defendant. The jury then decides in their collective judgment.
- The Plaintiff can still lose, however, if the inference of negligence is rejected by the trier of fact.
- No directed verdict may be given for the defendant, because when the res ipsa element has been proved, the plaintiff has made a prima facie case for negligence.
- The doctrine, however, does NOT switch the burden of proof to the defendant and does NOT create a presumption of negligence.
- Furthermore, it does NOT require the defendant to present evidence of due care in rebuttal.
- If the jury elects not to infer negligence, it may find for the defendant even if the defendant presents no evidence on that issue.
Factual Causation
- Link between breach and harm
- For liability to attach, Plaintiff must show both (1) Factual and (2) Proximate cause.
Causation
“But For” Test
- Injury would not have occurred but for act or omission
- This test applies where several acts (each insufficient to cause the injury) combine to cause the injury
- Defendant can refute this by showing that Plaintiff would have still been injured even if the act or omission did not occur
Merged Causes
Substantial Factor Test
- Applicable when? 2 Defendants acting independently each commit a breach combining into single indivisible harm
- Effect? Defendant liable if breach contributed in significant/substantial way to ultimate injury
- If breach would have been able to cause entire harm if it had been only breach, it’s a substantial factor
- Merged cause scenario where both breaches found to be substantial factor = Defendants held jointly and severally liable
Which causation test to use: Substantial Factor OR But For Test?
2 Defendants + 2 Breaches + Merged Causation
Substantial Factor
Causation
Balancing Shifting Test (Unascertainable Cause)
- 2 acts, only ONE of which causes injury, but unknown which one
- Burden of proof shifts to defendants, and each must show that his negligence is NOT the actual cause
Quail hunting case (Summers v. Tice)
What’s the name of test for proximate causation?
Proximate Causation
- Proximate cause can be thought of in terms of fairness
- Foreseeability Test: Was outcome foreseeable risk associated with breach?
Foreseeability Guidelines (3)
- Passage of time = things that happen right away are more likely to be foreseeable than things that happen after long passage of time
- Geographic distance = things that happen close to where Defendant was located and where breach happened are more likely to be foreseeable than things that happened greater distance away
- Prior occurrence
Common Foreseeable Intervening Forces (4)
- Medical malpractice
- Negligence of rescuers
- Protection or reaction forces to the Defendant’s conduct, including efforts to protect person or property
- Disease or accident substantially caused by the original injury
Normal responses or reactions to situation created by Defendant’s negligent acts are almost always foreseeable; Defendant LIABLE
Intervening forces that are not just a natural response/reaction to the situation created by Defendant’s conduct may be foreseeable if defendant’s conduct ____ risk of harm from these forces. 3 types?
INCREASED.
1. Negligent acts of third person
2. Crimes and intentional torts of third person
3. Acts of God
Superseding Forces
Intervening forces that produce unforeseeable results break the causal connection between Defendant’s initial negligent act and Plaintiff’s ultimate injury, relieving Defendant of liability.
Eggshell Skull Doctrine 🥚💀
- Once plaintiff has established all other elements of claim, plaintiff receives ALL damages suffered, even if surprisingly great in scope
- Take your plaintiff as you find your plaintiff
Not limited to negligence claims
Comparative Negligence
- Defendant shows plaintiff failed to exercise proper care for own safety
- Jury will be instructed to assign % of fault –> Plaintiff’s recovery reduced based on plaintiff’s % of fault
- Last clear chance is not used in comparative negligence jdx’s
- Express assumption of risk is a complete defense. Implied assumption of risk is analyzed as either (1) Limitation on the duty owed to plaintiff or (2) Contributory negligence
- Plaintiff’s negligence will be taken into account in most states eeven though defendant’s conduct was wanton and willful or reckless. But plaintiff’s negligence is still no defense to intentional tortious conduct by the defendant.
Example: P proves $100,000 in damages. Jury finds D 80% at fault and P at 20% at fault. P’s damages reduced by 20%. P will recover $80,000.
Partial Comaparative Negligence
Majority of states have adopted partial comparative negligence, where if Plaintiff’s own negligence contributes to their injury above the threshold level (more than 50% at fault) then Plaintiff’s claim is barred.
- If more than one Defendant has contributed to the Plaintiff’s injury, the Plaintiff’s negligence will be compared w/ the total negligence of all the defendants combined.
Pure Comparative Negligence
Plaintiff’s own negligence contributes to their injury. Plaintiff’s damage award gets reduced by percentage of fault attributable to the Plaintiff.
- Pure comparative negligence allow recovery no matter how great Plaintiff’s negligence was.
- On the MBE, assume that pure comparative negligence applies unless the question states otherwise.
Damages
Personal Injury
All damages (past, present, prospective), both economic and noneconomic damages. Plaintiff suffering physical injury also may recover damages for any resulting emotional distress
Damages
Mental Suffering
Plaintiff may recover damages for mental suffering once they bring an underlying tort claim from which they suffered an original physical impact or injury, followed by emotional distress.
- They can “tack on” damages for mental and emotional suffering to the underlying claim because Defendants are liable not only for the physical consequences from their tortious conduct, but also for virutally all emotional or mental suffering that flows naturally from it.
- This includes fear, anxiety, etc.
Property Damage
- Reasonable cost of repair OR if property is totally or nearly destroyed, FMV at tie of accident.
- Cannot recover emotional distress damages for negligent harm to property.
- Cannot recover for emotional distress if another party negligently injures or kills pet
Available in negligence cases?
Punitive Damages
Not available in negligence cases. But plaintiff may recover punitive damages if defendant’s conduct is “wanton and wilful,” reckless, or malicious.
Nonrecoverable Items
- Interest from data of daamge in a personal injury action
- Attorneys’ fees
Duty to mitigate
Plaintiff has a duty to take reasonable steps to mitigate damages
Collateral source rule
Damages are not reduced just because the plaintiff received benefits from other sources
Contributory Negligence
- Plaintiff’s own negligence contributes to their injury
- Standard of care is same as ordinary negligence – rescuer will not be deemed contributory negligent without taking into account the emergency situation
- Contributory negligence is a defese to negligence proved by the defendant’s violation of a statute UNLESS statute was designed to protect a class of plaintiffs from their incapacity and lack of judgment
Is contributory negligence a defense to wanton and willful miscondct? Intentional tortious conduct?
1) NO
2) NO
Effect of Contributory Negligence
Completely barred plaintiff’s right to recovery at common law. However, almost all jdx’s now favor a comparative negligence system.
Last Clear Chance - Exception to Contributory Negligence
Last clear chance permits a plaintiff to recover despite their contributory negligence. The person with the last clear chance to avoid an accident who fails to do so is liable for negligence
Last Clear Chance - Exception to Contributory Negligence
Helpless Peril
If plaintiff is in helpless peril, defendant will be liable if they knew or should have known of plantiff’s predicament.
Last Clear Chance - Exception to Contributory Negligence
Inattentive Peril
In situations whee Plaintiff could have extricated themselves if attentive –> Defendant must actually have known of plaintiff’s predicament.
Last Clear Chance - Exception to Contributory Negligence
Prior Negligence Cases
For the last clear chance doctrine to apply, defendant must have been able, but failed, to avoid harming the plaintiff at the time of the accident. If defendant’s only negligence occurred earlier, doctrine will not apply
Imputed Contributory Negligence
- Contributory negligence of a third party will be imputed to a plaintiff (and bar plaintiff’s claim) only when the relationship between the third party and plaintiff is such that a court could fid the plaintiff vicariously liable for the third party’s negligence.
- Negligence is imputed in employer-employee, partner, joint venturer relationships.
- Negligence is NOT imputed between spouses, parent and child , and automobile owner and driver.
Assumption of Risk
Plaintiff may be denied recovery if they assumed the risk of any damage caused by defendant’s act. Plaintiff must have:
(1) Known of the risk; and
(2) Voluntarily proceeded in the face of the risk.
Implied Assumption of Risk
- Knowledge may be implied where the risk is one that an average person would clearly appreciate
- Plaintiff may not be said to have assumed risk where there is not available alternative to proceeding in the face of the risk or in situations involving fraud, force, emergency. Also, common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk
Express Assumption of Risk
Risk may be assumed by an express agreement
Is assumption of risk a defense to intentional torts? Defense to wanton and willful conduct?
1) NO
2) YES
Strict Liability - Liability for Animals
Domesticated Animals
Generally, an owner is not strictly liable for injuries caused by domestic animals (including farm animals). Exception - There is strict liability if one has knowledge of the animal’s dangerous propensities.
* Dogs that bite humans are considered to have dangerous propensities because dogs have been domesticated by humans for centuries. First bite - no strict liability, but bites 2 through X, owner is now on notice and there’s strict liability.
Note:
* Injury caused by the normally dangerous characteristic of domestic animals does not create strict liability.
(Donkeys normally kick w/ their hind legs, so if your donkey kicks someone this doesn’t cause strict liability.)
Landowner may be liable on intentional tort grounds for injuries inflicted by vicious watchdogs.
Strict Liability - Liability for Animals
Trespassing Animals
An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.
Strict Liability - Liability for Animals
Strict Liability to Trespassers
Strict liability will generally not be imposed in favor of trespassers. To recover for their injuries from a wild animal (or abnormally dangerous domestic animal) a trespasser must prove the owner’s negligence.
- If you own a dog that you know has dangerous propensities and a trespasser gets bit by coming onto your land - no strict liability.
Strict Liability - Liability for Animals
Wild Animals
An owner is strictly liable to licensees and invitees for injuries caused by wild animals (even those kept as pets).
Strict Liability - Dangerous Activities
Abnormally Dangerous Activities
Courts generally impose two requirements for finding an activity to be abnormally dangerous:
(1) The activity must create foreseeable risk of serious harm even when reasonable care is exercised by all actors; and
(2) The activity is uncommon in the community.
Example:
(1) Anything involving the use of explosives/blasting (nitroglycerin, fireworks, chemical or biological materials) - there’s always strict liability for explosives/blasting even if Defendant has taken upmost care.
(2) Transporting/handling highly dangerous chemical/biological materials.
(3) Use of nuclear energy or high dose radiation - low dose radiation is common and not considered abnormally dangerous.
Strict Liability - Products Liability
Products Liability
Products liability refers to the liability of a supplier of a defective product to someone injured by the product.
Victim almost always will have multiple causes of action:
(1) Negligence
(2) Intentional tort
(3) UCC claim - Implied warranties of merchantability and fitness for a particular purpose
(4) Representation theories (express warranty and misrepresentation/fraud)
(5) Strict Liability
Strict Liability - Products Liability
Elements for Strict Products Liability
To find liability under a strict liability theory, the Plaintiff must show:
(1) Defendant is a merchant;
(2) Product is defective;
(3) Product was not substantially altered since leaving the Defendant’s control;
(4) Plaintiff was making a foreseeable use of the product at the time of the injury.
(1) Defendant is a merchant;
(2) Product is defective;
(3) Product was the actual and proximate cause of P’s injuries;
(4) Plaintiff suffered damages to person or property.
Elements for Strict Products Liability
(1) Defendant is a merchant
Any commercial supplier can be held strictly liabilily. But, it does not extend to casual sellers and service providers.
(1) Casual sellers are not merchants
* Casual sellers typically sell used goods - cannot be held strictly liable because they’re not a merchant.
(2) Service provider are not merchants
* Ex. Chair breaks in the doctor’s office - doctor is not strictly liable, but Plaintiff may sue for negligence.
(3) Commercial lessors IS merchants - those who rent rather than sell products to be held strictly liable.
* Car rental companies will be held strictly liable if the car you rented breaks down and an accident occurs. However, Plaintiff will need to prove all the product liability elements.
(4) Everyone in distribution chain is merchant
* Can sue the retailer, wholesaler, manufacturer. Users, consumers, and bystanders can sue. (privity of contract is not required to bring a strict liability claim for a defective product)
Elements for Strict Products Liability
(2) Product is Defective
(1) Manufacturing defect - Product emerges from manufacturing is different from others and more dangerous than consumers would expect.
(2) Design defect - Risks associated w/ product’s design outweigh the utility of the design.
* Feasible Alternative Approach - Plaintiff must show an alternative design would have been safer, practical, and economically feasible. (typically w/ an expert witness)
(3) Information Defects - Hidden risks without adequeate warnings and instructions.
* Warning must be prominent (cannot be hidden)
* Comprehensible (Must be in multiple languages if seller is aware the product is being marketed to a certain group)
* Provide information about mitigating the risk
Elements for Strict Products Liability
Government Safety Standards
A product’s noncompliance w/ government safety standards establishes that it is defective, while compliance w/ safety standarad is evidence, but not conclusive, that the product is not defective.
Elements for Strict Products Liability
(3) Product was not substantially altered since leaving the Defendant’s control
Plaintiff must show that the product has not been significantly altered since it left the Defendant’s control. There is a presumption that product moved in ordinary channels of distribution has no alteration.
Elements for Strict Products Liability
(4) Plaintiff was making a foreseeable use of the product at the time of the injury.
Plaintiff must have been making a foreseeable use of the product at the time of the injury. A Defendant will not be held liable for dangers not foreseeable at the time of marketing.
* Foreseeable use does NOT mean an “intended” or an “appropriate” use.
Example: Plaintiff using a chair as a stepping stool - this is foreseeable!
Strict Liability
Nature of Damages Recoverable - Economic Loss Rule
Physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic loss.
Strict Liability
Disclaimers Ineffective
Disclaimers are irrelevant in strict liability cases if personal injury or property damages occur.
Strict Liability
Liability Based on Negligence
Negligence in a products case is proved the same as in a standard negligence case. Plaintiff may invoke res ipsa loquitur if the defect is something that would not usually occur without the manufacturer’s negligence.
- Intermediaries - It’s difficult to hold intermediaries (retailers and wholesalers) liable for negligence because they can usually satisfy their duty through a cursory inspection. Intermediary’s negligent failure to discover a defect does not supersede the original manufacturer’s negligence unless the intermediary’s conduct exceeds ordinary foreseeable negligence.
Strict Liability
Affirmative Defenses
(1) Traditional defenses - is knowingly encountering dangerous situation bars recovery.
(2) Contributory negligence - No defense if the Plaintiff has failed to realize the danger or guard agaisnt it. It is a defense if the Plaintiff knew of the danger and their unreasonable conduct was the very cause of the harm from the wild animal/abnormally dangerous activity/defective product.
(3) Comparative responsibility - The jury will assign percentages based on the respective responsibilities of the two litigants and then Plaintiff’s recovery will be reduced accordingly. (apply this on the exam, unless stated otherwise)
Nuisance
A nusiance is an invasion of property rights by tortious conduct that must be intentional or negligent. There are two types of nusiance: private and public.
Nuisance
Private Nuisance
Private nuisance is a substantial, unreasonable interference w/ another private individual’s **use or enjoyment **of property that the other individual actually possesses or has the right of immediate possession.
* Minor interference is not actionable under a nuisance claim.
Examples of Nuisance Case
Inconsistent Land Use
Two neighbors who just should not be located next to each other - often they’re two businesses. This is a nuisance case.
Plaintiff operating a facility that treated people who suffered from nervous breakdowns. The defendant who operated next door to the plaintiff specialized in heavy metal music.
Examples of Nuisance Case
Spite Cases
Defendant is acting out of spite to annoy the Plaintiff - deliberately blasting loud noises; shining bright lights into the Plaintiff’s home.
Examples of Nuisance Case
Gross Inconsideration Cases
Defendant hosting parties throughout the year.
Nusiance
Substantial Interference
Substantial interference is interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of the Plaintiff’s hypersensitivity or specialized use of their own property.
Nuisance
Unreasonable Interference
To establish unreasonable interference, required for nuisances based on intent or negligence, the severity of the inflicted injury must outweigh the utility of the Defendant’s conduct.
* Courts take into account that every person is entitled to use their own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courtses of conduct open to the Defendant.
Must be intolerable. Big time interference!!
Example: Neighbor mowing his lawn at 6am in the morning and disturbing your sleep - not an unreasonable interference.
Nuisance
Public Nuisance
Public nuisance is an act that unreasonably interferes with the health, safety, or property rights of the community.
* Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large.
Example: Building for criminal activities such as prostitution.
Remedies
Damages
The Plaintiff will be awarded damages.
(1) Injunctive Relief; or
(2) Abatement by Self-Help
Remedies
(1) Injunctive Relief
If the legal remedy of damages is unavailable or inadequate, injunctive relief will be awarded. In this case, the court will consider the relative hardships.
* However, hardships will not be balanced if the Defendant’s conduct was willful.
Remedies
(2) Abatement by Self-help
In the case of a private nuisance, self-help abatement is available after notice to the Defendant and their refusal to act. Only necessary force may be used. In public nuisance cases, only a public authority or a private party who has suffered some unique damage can seek an injunction or abatement.
Defenses
Legislative Authority
Legislative authority for “nuisance activity” (i.e. zoning ordinance) is not an absolute defense but is persuasive.
Defenses
Conduct of Others
No one actor is liable for all damages caused by concurrence of their acts and others.
Defenses
Contributory Negligence
Contributory negligence generally is no defense to nuisane unless the Plaintiff’s case rests on a negligence theory.
Defenses
Coming to the Nuisance
One may “come to a nuisance” (purchasing lang next to an already existing nuisance) and, thereafter, puruse an action. It is generally not a bar to the Plaintiff’s action unless the Plaintiff “came to the nusiance” for the sole purpose of bringing a harassing lawsuit.
Vicarious Liability & Other Miscellaneous
Vicarious Liability
Vicarious liability is liability that is derivatively imposed (there’s usually 2 tortfeasors). This means that one person (the active tortfeasor) commits a tortious act against a third party and another person (the passive tortfeasor) will be liable to the third party for this act.
(1) Active tortfeasor - Party whose affirmative conduct caused the harm.
(2) Passive tortfeasor - Party held vicariously liable based on relationship to active tortfeasor.
Vicarious Liability
Employer-Employee
An employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within the scope of the employment relationship. This concept is also know as the doctrine of respondeat superior.
Vicarious Liability - Employer-Employee
Frolic or Detour
An employee making a minor deviation from their employer’s business for their own purposes is still acting within the scope of employment. If the deviation in time or geographic area is substantial, the employer is not liable.
- Minor departure - Employer is still liable.
- Major departure - Employer is not liable.
Vicarious Liability - Employer-Employee
Intentional Torts
Intentional tortious conduct by employees is not within the scope of employment. Exceptions:
(1) Employee is furthering the business of the employer;
(2) Force is authorized in the employment;
* Misuse of that force is within the scope of the employment (i.e. bouncer of a club)
(3) Friction is generated by the employment
* Bill collector
Vicarious Liability - Employer-Employee
Liability for Own Negligence
Employers may be liable for their own negligence by negigently selecting or supervising their employees.
Vicarious Liability - Employer-Employee
Independent Contractor/Hiring Party
Hiring party (the principal) is generally not liable for torts commited by independent contractor.
Exception - A business owner can be held vicariously liable if the independent contractor working on the business premises and hurts a customer.
Vicarious Liability - Employer-Employee
Liability for Own Negligence
The employer may be liable for their own negligence in selecting or supervising the independent contractor.
Example - Hospitable may be liable for contracting w/ an unqualified and incompetenet health care provider who negligently treats the hospital’s patient.
Vicarious Liability
Partners and Joint Venturers
Each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture.
Vicarious Liability
Automobile Owner for Driver
General rule is that an automobile owner is not vicariously liable for the tortious conduct of another person driving their automobile.
* In some jurisdictions, courts have developed exceptions to this rule to hold an automobile owner liable under specific circumstances.
Family Car Doctrine - In many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owner’s express or implied permission.
Vicarious Liability - Automobile
Permissive Use
Many states now impose liability on the owner for damages caused by anyone driving with the owner’s consent.
* However, under the federal statute, rental car companies are not vicariously liable for the negligent accidents of their customers even if they do business in a “permissive use” state.
Vicarious Liability - Automobile
Negligent Entrustment
An owner may be liable for their own negligence in entrusting the car to the driver. Some states have also imposed liability on the owner if they were present in the car at the time of the accident, on the theory that they could ahve prevented the negligent driving, and hence were negligent in not doing so.
Vicarious Liability - Automobile
Driver Acting as Agent for Owner
The car owner will be liable if the driver is acting as the owner’s agent, for instance using the car to perform an errand for the owner.
Vicarious Liability
Bailor for Bailee
Under the general rule, the bailor is not vicariously liable for the toritous conduct of their bailee.
* Bailor may be liable for their own negligence in entrusting the bailed object.
Vicarious Liability
Parent for Child
At common law, a parent is not vicariously liable for the tortious conduct of their child. However, most states - by statute - make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount. (i.e $10k).
Vicarious Liability
Child Acting as Agent for Parents
Courts may impose vicarious liability if the child committed a tort while acting as the agent for the parents.
Vicarious Liability
Parent Liable for Own Negligence
Parent may be held liable for their own negligence in allowing the child to do something i,e, use a dangerous object without proper instruction.
* If the parent is apprised of the child’s conduct on past occasions showing a tendency to injure another’s person or property, they may be liable for not using due care in exercising control to mitigate such conduct - i.e. by allowing the child to play w/ other chuldren that they have a history of attacking.
Even if the Defendant is not vicariously liable, the Plaintiff may prevail if the Defendant personally was negligent in supervising the person causing the injury or in entrusting a dangerous object to someone not equipped to handle it.
Vicarious Liability
Tavernkeepers
- Under Common Law, no liability was imposed on vendors of alcohol for injuries resulting from the partron’s intoxication, whether the injuries were sustainted by the patron or by a third person as a result of the patron’s conduct.
- Under Modern Law, in order to avoid this common law rule, have enacted Dramshop Acts. Such acts usually create a cause of action in favor of any third person injured by the intoxicated patron. Several courts have imposed liability on tavernkeepers even in the absence of a Dramshop Act. This liability is based on ordinary negligence principles rather than vicarious liability.
Foreseeable risk of serving a minor or obviously intoxicated adult.
Vicarious Liability - Multiple Defendants
Joint and Several Liability
When two or more Defendants act in concert and injure the Plaintiff, each Defendant is jointly and serverally liable for the entire injury. Under joint and several liability the Plaintiff can recover full damages from any Defendant Plaintiff chooses.
But, if the injury is divisible, each Defendant is liable only for the identifiable portion.
Vicarious Liability - Joint and Several Liability
Satisfaction / Release
- Recovery of full payment is a “satisfaction” Only one satisfaction is allowed. Until there is satisfaction, however, one may proceed agaisnt all jointly liable parties.
- In most states, a release of one tortfeasor does not discharge other tortfeasors unless it is expressly provided for in the release agreement.
Vicarious Liability - Joint and Several Liability
Contribution Rule
Allows a Defendant who pays more than their share of damages under joint and several liability to have a claim against other jointly liable parties for the excess - seeks compensation from co-defendant(s).
Vicarious Liability - Joint and Several Liability
Comparative Contribution
In a multiple defendant scenario, a jury will assign every Defendant a percentage that reflects the relative fault of the various Defendants.
Note - Plaintiff can receive all the money s/he chooses from any Defendant, so the percentages do not matter to the Plaintiff, but the percentages control when Defendant A goes after B and C for contribution. But Defendant A bears the risk of insolvency of the co-defendants - If A goes after B for their share of the injury and B is insolvent, A is just out of luck.
Vicarious Liability - Joint and Several Liability
Equal Shares
In a minority of states, apportionment is the equal shares regardless of degrees of fault.
Vicarious Liability - Joint and Several Liability
Contribution Tortfeasor Must Have Liability
The contribution Defendant must be originally liable to the Plaintiff. If the contribution Defendant has a defense that would bar liability, they are not liable for contribution.
Vicarious Liability - Joint and Several Liability
Not Applicable to Intentional Torts
Contribution is not allowed among intentional tortfeasors.
Vicarious Liability - Joint and Several Liability
Indemnification
Indeminification involves shifting the entire loss between or among tortfeasors. The Defendant who paid was much less responsible tahn the nonpaying Defendant. Indemnity is available in the following circumstances:
(1) Vicarious liability situations where passive tort-feasor was held liable (full indemnification from the active tort-feasor);
(2) Under strict products liability where non-manufacturer was held liable (full indemnification from the manufacturer)
Full reimbursement to out-of-pocket Defendant.
Loss of Consortium and Tortious Interference w/ Family
Loss of Consortium - Spouses
Either spouse may bring an action for indirect interference w/ consortium and services caused by the Defendant’s intentional or negligent tortious conduct against the other spouse.
Three types of injuries loss of consortium is designed to compensate:
(1) Loss of household services;
(2) Loss of society/companionship;
(3) Loss of sex.
Derivative of the injured party’s claim so any defenses raised againt the injured spouse could also be raised to the consortium spouse.
Loss of Consortium and Tortious Interference w/ Family
Loss of Consortium - Parent-Child
A parent may maintain an action for loss of a child’s services and consortium as a result of the Defendant’s tortious conduct, whether intentional or negligent.
* A child, however, has no action in most states against one who tortiously injures their parents.
Loss of Consortium and Tortious Interference w/ Family
Nature of Action for Loss of Consortium
Loss of consortium actions are derivative. So, any defense that would reduce or bar recovery by the injured family member also reduces or bars recovery for intereference w/ the family relationship.
Loss of Consortium and Tortious Interference w/ Family
Survival of Tort Actions
Survival acts allow one’s cause of action to survive the death of one or more of the parties. The acts apply to actions involving torts to property and torts resulting in personal injury.
* However, torts invading intangible personal interests (defamation, invasion of right of privacy, etc) expire upon the victim’s death.
Loss of Consortium and Tortious Interference w/ Family
Wrongful Death
Wrongful death acts grant recovery for pecuniary injury resulting to the spounse and next of kin. A decedent’s creditors have no claim against the amount awarded. Recovery is allowed only to the extent that the deceased could have recovered in an action had they lived.
- The decedent’s contributory negligence reduces the wrongful death recovery in comparative negligence states. Similarly, a potentila beneficiary’s contributory negligence reduces theri share of the recovery in comparative negligence states.
Loss of Consortium and Tortious Interference w/ Family
Intra-Family Tort Immunities
Traditionally, one member of a family unit could not sue another in tort for personal injury.
- Today, most states have abolished spousal immunity.
- Slight majority have abolished parent-child immunity.
Those that retain parent-child immunity do not apply it in:
(1) cases alleging intentional tortious conduct; or
(2) Automobile accident cases to the extent of insurance coverage.
Governmental Tort Immunity
Federal, state, and municipal tort immunity has been eliminated. Where it survives, the immunity attaches to governmental, not proprietary, functions.
Governmental Tort Immunity
Federal Government
Under the Federal Tort Claims Act, the US has waived immunity for tortious acts. However, immunity will still attached for:
(1) Assault;
(2) Battery;
(3) False imprisonment;
(4) False arrest;
(5) Malicious prosecution;
(6) Abuse of process;
(7) Libel and slander;
(8) Misrepresentation and deceit; and
(9) Interference w/ contract rights.
- Note - Immunity is also not waived for acts that are characterized as “discretionary”; acts termed “ministerial are not immune from liability.
Governmental Tort Immunity
State Governments
Most states have substantially waived theri immunity to the same extent as the federal government; hence, immunity is retained for discretionary acts and for legislative and judicial decisionmaking.
Governmental Tort Immunity
Local Governments
Half of the states have abolished municipal immunity to the same extent as for the state government. Where municipal immunity has been aboslished, the “public duty” rule provides that a duty owed to the public at large is not owed to any particular citizen absent a special relationship between the governmental body and the citizen.
* So a city is not liable to one whose house burns if its fire department negligently fails to respond to an alarm, becasue the provision of the fire protection services is a public duty.
* Where municipal immunity still exists, contract “governmental” functions and “proprietary” functions. Courts limit application of soverign immunity by not granting it for proprietary functions.
Governmental Tort Immunity
Immunity of Public Officials
Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. Liability attaches, however, for ministerial acts.
Governmental Tort Immunity
Charitable Immunity
The majority of jurisdictions have eliminated charitable immunity.
Defamation (5)
“I AM PIFFD”
(1) (A) A defamatory statement = Adversely affects reputation; factual representation that reflects adversely on character.
(B) Specifically identifies Plaintiff = By name not required, any identifying information is sufficient. Small group = everyone has claim, Large group = no one has claim. Plaintiff must be alive when statement made.
(2) Published to a 3P = 1 other person beyond Plaintiff. Publication need not be intentional, mere negligent publishing suffices!
(3) Falsity of the defamatory language = Excludes negative but truthful statements, but subject to limitation by privacy torts.
(4) Fault on the part of the Defendant = degree of awareness Defendant had concerning the falsity of the statement; however, statement with good faith reasonable belief of truth = Not liable for defamation! Fault required depends on Plaintff (see flashcard)
(5) Damage to Plaintiff’s reputation (See flashcard)
Is a pure statement of opinion defamatory? Exception?
NO!
Opinion is actionable only if it implies specific facts.
“You’d be crazy to let Attorney X handle your escrow money” = Actionable! Implies he stole money from me.
Is name-calling sufficient for defamation?
NO!
“X is a son of a B**” = Not actionable!
Defamation Element of Fault
Fault Required Depends on ⭐️ Plaintiff ⭐️
- Private Person: Negligence
- Public Figure: Malice = Knowledge or reckless disregard (i.e., defendant deliberately lied or ignored very strong evidence the statement was false and went ahead and said it anyway). Who? Anyone in the public 👁️ or involved in public concern. (Note, level changes depending on what they’re publicly known for - so if someone arrested for X and you make false statement regarding X, Malice standard; but if you make false statement regarding something not known to public, then negligence standard)
Defamation Element of Damages
Damage to Plaintiff Reputation (Define: Libel, Slander Per Se, Other)
- Libel = Defamation embodied in permanent form 📖💿 Damages are presumed!
-
Slander Per Se = Words 🗣️ so clearly defamatory that ordinary person would understand injury; Damages presumed!
Slander per se categories:
(1) Business/profession 👩🏻💼
(2) Serious crime ⛓️💥
(3) Serious sexual misconduct
(4) Loathsome disease 🦠 (Leprosy; Venereal like STD’s) - Plaintiff must PROVE economic harm for slander other than Slander Per Se = Got fired, didn’t get rehired, lost a contract, revenues went down, etc.
Defamation Defenses (3)
- Consent ☑️
-
Absolute Privilege:
(A) Between spouses 💍
(B) Officers of gov in connection w/ official work 👩🏼⚖️⚖️ (Lawyer arguing case; Senator on floor) -
Qualified Privilege: Available on case-by-case privilege when public interest in encouraging candor. Only applies to statements made in (1) good faith and (2) relevant scope
(A) References / Recommendations 📝
(B) Common interest privilege: Qualified privilege for statements made to colleagues within same organization
Invasion of Privacy
Appropriation (Exception & Limitation?)
- Defendant uses Plaintiff’s name/image for commercial purpose 🌠 (Ex) Athlete picture on cereal box
- Newsworthiness exception
- NOT limited to celebrities
- Appropriation: EMOTIONAL damages 😢
- Right of publicity: ECONOMIC damages 💸
Invasion of Privacy
Intrusion 🏠
- Invasion of Plaintiff’s seclusion in way that would be highly offensive to reasonable person 🏡 (Ex) Eavesdropping; Wiretapping; Peeping Tom; Listening at keyhole
- Must be at a place where you have a reasonable expectation of privacy, i.e., no REP in public!
Invasion of Privacy
False Light 💡
- Dissemination of material falsehoold about Plaintiff that would be highly offensive to reasonable person 💬
- Most states require that Defendant KNEW the statement was false or made statement with reckless disregard of its falsity i.e., Malice
- (Ex) D runs around town and tells 100 people P is embezzling millions and D knows he’s not doing that !
- Defamation = Economic damages
- False light = Emotional damages
D says X is Catholic, however, X is Jewish = False light 💡 but NOT Defamation!
Invasion of Privacy
Disclosure 📣
- Widespread dissemination of confidential info about Plaintiff not of legitimate concern to public and highly offensive to reasonable person
- (Ex) Doc sent your medical records to everyone at law firm
- Newsworthiness exception 📰
- Disclosure must be of truly confidential fact
- (Ex) P is gay but not out at work; at a parade he is holding a “Gay and proud” sign. D coworker sees him at parade and tells everyone at work. P will lose disclosure case!
Affirmative Defenses to Privacy Torts
(1) Consent
(2) Absolute/Qualified privilege available for
- False Light and
- Disclosure Claims
