Torts Flashcards
To establish a prima facie case for any intentional tort, the plaintiff must prove:
- An act by the defendant
- Intent by the defendant
- Causation of the result to the plaintiff from the defendant’s act
For intentional torts the act required is ___ by the defendant.
a volitional movement
The intent that is relevant for purposes of intentional torts is the intent to ____. The defendant does not need to intend the ____
bring about the forbidden consequences that are the basis of the tort; specific injury that results.
The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead:
- Commits a different tort against that person
- Commits the same tort as intended but against a different person
OR - Commits a different tort against a different person
–> In such cases, 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.
Transferred intent may be invoked only if both the tort intended and the tort that results are one of the following:
- Assault
- Battery
- False imprisonment
- Trespass to land
- Trespass to chattels
Who is capable of committing intentional torts
Everyone is “capable” of intent. Incapacity is not a good defense. Thus, young children and persons who are mentally incompetent will be liable for their intentional torts.
Causation for intentional torts is satisfied if the defendant’s conduct was ____
a substantial factor in bringing about the
injury.
Note: In most cases, causation will not be at issue when you are analyzing an intentional tort because it is usually obvious that the defendant’s conduct was a substantial factor in causing the harm.
The key testable elements for battery are:
- Harmful or offensive contact
- Contact must be with the plaintiff’s person
+ Intent/causation as usual
Contact is harmful if it ____.
Contact is offensive if it ____.
causes actual injury, pain, or disfigurement
would be considered offensive to a reasonable person (hyper sensitivity is ignored)
Contact is considered offensive only if it hasn’t been ____. However, consent will be
implied for the ____
permitted or consented to; ordinary contacts of everyday life (for example, minor bumping on a crowded bus).
Contact for battry covers both ___ contact
direct (for example, striking the plaintiff) or indirect (for example, setting a trap for the plaintiff to fall into).
Plaintiff’s person includes ____
anything connected to the plaintiff (for example, clothing or a purse).
For battery the plaintiff can recover nominal damages even if ____. The plaintiff may recover punitive damages for ____.
actual damages aren’t proved; malicious conduct
The key testable elements for assault are:
- Act by the defendant creating a reasonable apprehension in the plaintiff
- Of an immediate battery (harmful or offensive contact to the plaintiff’s person)
+ Intent/Causation
For assault the apprehension of harmful or offensive contact must be ____. Courts generally will not protect a plaintiff against ____.
reasonable; exaggerated fears of contact
___ is not required for there to be an assult
Fear
Apprehension shouldn’t be confused with fear or intimidation (for example, a weakling can cause a bully to apprehend offensive contact for purposes of assault).
If the defendant has the ____ to commit a battery, this will be enough to cause a reasonable apprehension.
apparent ability
Ex: If gun is not loaded but pl. doesn’t know that = that can still be assault
Effect of words on creating a reasonable apprehension of an immediate battery in the pl.
In the vast majority of cases, words alone are not enough. For the defendant to be liable, the words must be coupled with conduct.
However, words can negate reasonable apprehension (for example, the defendant shakes their fist but states that they are not going to strike the plaintiff).
For assault the plaintiff must be apprehensive that they are about to become the victim of an ____ battery.
immediate
For an assault claim the plaintiff can recover ____ even if actual damages are not proved. Malicious conduct may permit recovery of ____.
nominal damages; punitive damages
The key testable elements for false imprisonment are:
- An act or omission on the part of the defendant that confines or restrains the plaintiff
- The plaintiff must be confined to a bounded area
+ Intent/Causation
Sufficient acts of restraint for false imprisonment include:
- Physical barriers
- Physical force directed against the plaintiff, immediate family, or personal property (for example, confiscating the plaintiff’s purse)
- Direct threats of force
- Indirect or implied threats of force
- Failure to release the plaintiff when under a legal duty to do so (for example, a taxi driver refusing to let a customer out)
- Invalid use of legal authority (for example, false arrest)
Insufficient acts of restraint for false imprisonment include:
- Moral pressure
- Future threats
How long does confinement need to be for false imprisonment claim
It is irrelevant how short the period of the confinement is.
For false imprisonment the plaintiff must ___ of the confinement or be ____ by it.
know; harmed
What Is a Bounded Area for false imprisonment?
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.
Damage rule for false imprisonment
The plaintiff can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if the defendant acted maliciously.
The key testable elements for intentional infliction of emotional distress are:
- An act by the defendant amounting to extreme and outrageous conduct
- The plaintiff must suffer severe emotional distress
+ Itent/Causation
Extreme and Outrageous Conduct is conduct that ____
transcends all bounds of decency
Conduct that is not normally outrageous may become it for IIED if:
- It is continuous in nature
- It is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere “gross insults”) OR
- It is directed toward a certain type of plaintiff (children, elderly
persons, someone who is pregnant, supersensitive adults if the
sensitivities are known to defendant)
For IIED and unlike for other intentional torts, ____ as to the effect of the defendant’s conduct will satisfy the intent requirement.
recklessness
Damage requirement for IIED
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 is
required.
____ is the only intentional tort to the person that requires damages.
Intentional infliction of emotional distress
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.
Intentional infliction of emotional distress is a ____ tort position.
fallback
The intentional torts to the person include:
- Battery
- Assault
- False imprisonment
- IIED
The intentional torts to property include:
- Trespass to land
- Trespass to chattels
- Conversion
The key testable elements for trespass to land are:
- Physical invasion
- Of the plaintiff’s real property
+ Intent/Causation
For trespass to land the invasion may be by a ____. If intangible matter (for example, vibrations or odor) enters, the plaintiff may have a case for ____, but not for trespass since those things are not considered physical.
person or object (for example, throwing a baseball onto the plaintiff’s land is a trespass)
nuisance
For trespass to land real property includes not only the surface, but also _____
airspace and subterranean space for a reasonable distance.
The trespass claim belongs to the person with the ____, and not necessarily the owner.
right to possess the property
–> if you enter a rented apartment without permission, the tenant has a claim against you, not the landlord
Intent for trespass to land
The defendant need intend only to enter onto that particular piece of land. The defendant need not know that the land belonged to another.
Damage requirement for trespass to land
The plaintiff can recover without showing actual injury to the land.
The key testable element for trespass to chattels is:
Act by the defendant that interferes with the plaintiff’s right of possession in a chattel
Types of interference for trespass to chattels
The interference may either be an intermeddling (that is, directly damaging the chattel) or a dispossession (that is, depriving the plaintiff of their lawful right of possession of the chattel).
Intent required for trespass to chattels
Intent to trespass isn’t required; intent to do the act of interference is all that is needed. The defendant’s mistaken belief that they own the chattel is no defense.
Damage requirement for trespass to chattels
Actual damages—not necessarily to the chattel, but at least to a possessory right—are required.
The key testable elements for conversion are:
- Act by the defendant that interferes with the plaintiff’s right of possession in a chattel
- Interference is serious enough in nature or consequences to warrant that the defendant pay the chattel’s full value
Intent required for conversion
As with trespass to chattels, mistake as to ownership is no defense; the only intent required is the intent to do the act that interferes with the plaintiff’s right of possession.
The longer the withholding period and the more extensive the use, the more likely it is to be ____. A less serious interference is ____.
conversion; trespass to chattels
Subject Matter of Conversion
Only tangible personal property and intangibles that have been reduced to physical form (for example, a promissory note) are subject to conversion.
Remedies for trespass to c hattels
The plaintiff may recover damages (fair market value at the time of conversion) or possession (replevin).
Possible defenses to intentional torts:
- Consent
- Protective privileges
- Necessity
The plaintiff’s consent to the defendant’s conduct is a defense, but the majority view is that one cannot consent to ____.
a criminal act
Any consent fact pattern raises two questions:
- Was there a valid consent?
- Did the defendant stay within the boundaries of the consent?
Individuals without capacity are deemed ____, for example, drunken persons, and very young children. Persons with limited capacity, such as older children and persons with mild intellectual disabilities, can consent, but only to ____
incapable of consent; things within the scope of their understanding.
Everyone (even a young child) has the capacity
to ____, but not everyone has the capacity to ____.
commit a tort; consent to a tort
The defendant is not liable if the plaintiff expressly consents to the defendant’s conduct. Exceptions:
(1) mistake will undo express consent if the defendant knew of and took advantage of the mistake;
(2) consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and
(3) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation.
Mistake will undo express consent if ____
the defendant knew of and took advantage of the mistake;
Consent induced by fraud will be invalidated if _____
it goes to an essential matter, but not a collateral matter
Consent obtained by duress will be invalidated unless the duress is ____
only threats of future action or future economic deprivation.
Apparent consent is that which ____, for example, normal contacts inherent in body-contact sports, ordinary incidental contact, etc.
a reasonable person would infer from custom and usage or the plaintiff’s conduct
Consent implied by law arises when ____
action is necessary to save a person’s life or some other important interest in person or property.
If the defendant ____ by committing a more intrusive invasion or by invading a different interest than the one the plaintiff referenced, they may be liable.
exceeds the scope of consent
Protective privileges include:
- Self-defense
- Defense of others
- Defense of property
- Reentry onto land
- Recapture of chattels
When a question involves the defense of self, others, or property, ask the following three questions:
- Is the privilege available?
- Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed?
- Was a proper amount of force used?
Protective privileges only apply for ___
preventing the commission of a tort.
Self-Defense Elements
When a person reasonably believes that they are being or are about to be attacked, they may use such force as is reasonably necessary to protect against injury.
For self-defense the majority rule is that there is ____ to retreat. The modern trend imposes a duty to retreat before ___ if this can be done safely, unless the actor is in their home.
no duty; using deadly force
Self-defense is not available to the ____ aggressor unless ____
initial
the other party responds to the aggressor’s nondeadly force by using deadly
force.
Self-defense may extend to ____ injuries (caused while the actor was defending themselves).
third-party
An actor might be liable to a third person if they deliberately injured the third person in trying to protect themselves.
Is mistake allowed for self-defense
A reasonable mistake as to the existence of the danger is allowed.
How Much Force May Be Used in self-defense?
One may use only that force that reasonably appears to be necessary to prevent the harm (including deadly force). If more force than is
reasonably necessary is used, the defense is lost.
Deadly force is not proportional to threats to ___
property (but check for reasonable belief about safety to self)
When Is Defense of others available?
One may use force to defend another when they reasonably believe that the other person could have used force to defend themselves.
Is mistake allowed for defense of others
A reasonable mistake as to whether the other person is being attacked or has a right to defend themselves is permitted.
How Much Force May Be Used for defense of others?
The defender may use as much force as they could have used in self-defense if they were the one threatened with the injury.
When Is the Defense of property Available?
One may use reasonable force to prevent the commission of a tort against their real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous.
The defense of property does not apply once the tort has ____; however, one may use force in ____ of another who has tortiously dispossessed the owner of their chattels because the tort is viewed as still in progress if the defendant is in the act of fleeing.
been committed; hot pursuit
Defense of property is not available against one
with a ____.
privilege
–> whenever an actor has a privilege to enter onto the land of another because of necessity,
recapture of chattels, etc., that privilege will supersede the privilege of the land possessor to defend their property.
Is mistake allowed for defense of property?
A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required.
A mistake is not allowed as to whether the entrant has a privilege (for example, necessity)
that supersedes the defense of property right, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged (such as by refusing to say what the necessity is).
Before force may be used in defense of property, the pl must:
request to desist or leave must first be made unless it clearly would be futile or dangerous.
For defense of property How Much Force May Be Used?
Reasonable force may be used. However, one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm.
–> The same principle makes it impermissible to set deadly mechanical devices or traps (such as spring guns) to protect property.
A shopkeeper has a privilege to detain a suspected shoplifter for ____. For the privilege to apply, the following conditions must be satisfied:
investigation
- There must be a reasonable belief as to the fact of theft
- The detention must be conducted in a reasonable manner and only nondeadly force can be used
- The detention must be only for a reasonable period of time and only for the purpose of making an investigation
At common law, one could use force to reenter land only when an intruder came into possession tortiously, such as by a trespass. Under modern law, there are summary procedures such as ejectment for recovering possession of real property. Hence, resort to ____ is no longer allowed.
self-help
The basic rule is the same as that for reentry of land at common law: When another’s possession began lawfully (for example, a conditional sale), one may use only ____ to recover the chattel.
Reasonable force may be used to recapture a chattel only when ____, for
example, by theft.
peaceful means; in hot pursuit of one who has obtained possession wrongfully
Necessity defense
A person may interfere with the real or personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it.
Types of necessity:
Public and private
Public necessity defense
A defendant can raise public necessity as a defense if they acted to avert an “imminent public disaster.”
Private necessity defense
Private necessity can be a defense when the action was to prevent serious harm to a limited number of people. Under private necessity,
the actor must pay for any injury they cause (unless the act was to benefit the property owner).
Necessity is a defense only to ____ torts.
property
The elements of a prima facie case of negligence are:
- A duty on the part of the defendant to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury
- A breach of that duty by the defendant
- The breach is the actual and proximate cause of the plaintiff’s injury
- Damages
When confronted with a negligence question, you should always ask:
- To whom do you owe a duty?
- What is the applicable standard of care?
A duty of care is owed to all ____. 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.
foreseeable plaintiffs
Test for foreseeable plaintiffs
“zone of interests”
A rescuer is a foreseeable plaintiff when ____
the defendant negligently put themselves or a third person in peril (danger invites rescue).
Firefighters and police officers are barred by the “firefighter’s rule” from recovering for ____
injuries caused by the inherent risks of their jobs.
A third party for whose ____ a legal or business transaction was made (for example, a beneficiary of a will) may be a foreseeable plaintiff.
economic benefit
All persons owe a duty to behave with the same care as a hypothetical ____ in the conduct of their activities to avoid injuring foreseeable victims.
reasonably prudent person
The reasonably prudent person standard is an ____ standard, measured against what the
average person would do. A defendant’s mental ____ are not taken into account.
objective; deficiencies and inexperience (in other words, low intelligence is no excuse).
Exceptions to reasonably prudent standard being objective:
- Superior Skill or Knowledge
- Physical Characteristics Where Relevant
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 experience.
The “reasonably prudent person” is considered to have the same physical characteristics as the defendant if ____ (but remember, one is expected to know one’s physical abilities and to exercise the care of a person with ____—for example, a blind person should act as a reasonably prudent person who cannot see and not attempt to, for instance, drive a car).
those physical characteristics are relevant to the claim; such knowledge
SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT include:
- Children
- Professionals
- Possessors of land
Children are held to the standard of ___
a child of like age, intelligence, and experience (rhis is a subjective test)
A child under ___ is usually without the capacity to be negligent. Children engaged in potentially dangerous ____ may be required to conform to an “adult” standard of care.
five; adult activities
A professional is required to possess the ____.
For doctors, most courts apply a ____ standard of care to evaluate their conduct.
knowledge and skill of an average member of the profession or occupation in good standing (empirical standard)
national
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 ____
unknown trespasser, known trespasser, licensee, or invitee.
Duty owed to unknown trespassers
No duty is owed to an undiscovered trespasser.
As to discovered or anticipated trespassers, the land possessor must warn of or make safe any conditions that are:
- Highly dangerous (involving risk of death or serious bodily harm)
- Artificial
- Concealed
- Known to the land possessor in advance
A licensee is one who enters onto the land with the possessor’s permission for ____
their own purpose or business, rather than for the possessor’s benefit.
As to licensees, the land possessor has a duty to warn of or make safe hazardous conditions that are:
- Concealed
- Known to the land possessor in advance
For invitees the land possessor must exercise reasonable care in the conduct of “____on the property. The possessor has no duty to____.
active operations; inspect or repair
Invitees enter onto the land in response to an invitation by the possessor of the land (meaning they enter for a purpose connected with the ____ or enter as members of the public for a purpose for which the land is ____).
business of the land possessor; held open to the public
An invitee will lose invitee status if ____
they exceed the scope of the invitation.
The landowner or occupier owes a duty to invitees regarding hazardous conditions that are:
- Concealed
- Known to the land possessor in advance or could have been discovered by a reasonable inspection
Attractive Nuisance Doctrine
Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on their property.
To establish the doctrine of attractive nuisance’s applicability, the plaintiff must show:
- A dangerous condition on the land that the owner is or should be aware of
- The owner knows or should know that children might trespass on the land
- The condition is likely to cause injury (it is dangerous because of the child’s inability to appreciate the risk)
- The expense of remedying the situation is slight compared with the magnitude of the risk
For liability to attach, the requirements above must be shown. The child does not have to be ____ by the dangerous condition, nor is the attraction alone enough for ____
attracted onto the land; liability.
A landowner who permits the general public to use their land for recreational purposes without charging a fee is ___ for injuries suffered by a recreational user, unless ____
not liable
the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity.
There generally is no duty to protect someone ___ the premises from natural conditions on the premises; however, there is a duty for unreasonably dangerous artificial conditions or structures ____. Also, one must carry on activities on the premises so as to avoid ____ to others off the premises.
off; abutting adjacent land
unreasonable risk of harm
The lessee has a general duty to ____. The lessor must warn of ___
maintain the premises; 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 _____. If the lessor volunteers to repair and does so ____, they are liable.
unreasonably dangerous conditions; negligently
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.
A clearly stated specific duty imposed by a statute providing for ____ may replace the more general common law duty of due care if:
criminal penalties (including fines for regulatory offenses and ordinances, such as for speeding)
- The plaintiff is within the protected class
- The statute was designed to prevent the type of harm suffered by the plaintiff
Exceptions to negligence per se:
Violation of some statutes may be excused where compliance would cause more danger than violation OR where compliance would be beyond the defendant’s control
Effect of compliance with statutory standard of care
Even though violation of the applicable
statute may be negligence, compliance with the statute will not necessarily establish due care.
Effect of Violation of statutory standard of care
Under the majority view, an unexcused statutory violation is negligence
per se; in other words, it establishes the first two requirements in the prima facie case—a conclusive presumption of duty and breach of duty.
Affirmative duty to act - general rule
Generally, one does not have a legal duty to act. There is no duty to rescue.
Exception to duty to act rule:
- Special Relationship Between Parties
- Peril due to own conduct
- Assumption of duty by acting
A special relationship between the parties (for example, parent-child) may create a duty to act. Similarly, ____ owe duties of reasonable care to aid or assist their patrons. In addition, places
of public accommodation have a duty to _____
common carriers, innkeepers, shopkeepers, and others that gather the public for profit
prevent injury to guests by third persons.
One may assume a duty to act by ___
acting (for example, once the
defendant undertakes to aid someone, they must do so with reasonable
care).
One has a duty to assist someone they have negligently or innocently placed in ____
peril.
Good Samaritan statutes
Exempt doctors, nurses, etc., from liability for ordinary, but not gross, negligence.
Duty to Prevent Harm from Third Persons - General Rule
Generally, there is no duty to prevent a third person from injuring another.
Duty to Prevent Harm from Third Persons - Exceptions
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.
Duty: Automobile Driver to Guest
A guest in an automobile is owed a duty of ordinary care.
In the few guest statute states, one is liable to nonpaying passengers only for reckless tortious conduct.
In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not ___
title (for example, bailor loans their
car to bailee)
The bailee’s standard of care depends on who benefits from the bailment:
(1) for a sole benefit of the bailor bailment, there is a low standard of care;
(2) for a sole benefit of the bailee bailment, there is a high standard of care; and
(3) for a mutual benefit bailment (typically a bailment for hire), there is the ordinary care standard.
Note: The modern trend applies a duty of ordinary care under the circumstances, whereby the type of bailment is just one factor taken into account.
For a sole benefit of the bailee bailment, the bailor must ___. For a bailment for hire, the bailor must ___
inform the bailee of known, dangerous defects in the chattel; inform the bailee of chattel defects of which they are or should be aware.
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.
Actions for infliction of emotional distress are not the only means of recovering damages
for emotional distress. If physical injury has been caused by commission of a tort, the plaintiff can ____ for emotional distress as a “parasitic” element of their physical injury damages, without the need to consider the elements of the emotional distress torts.
“tack on” damages (pain and suffering damages)
Types of NIED cases:
- Near miss cases
- Bystander cases
- Business relationship cases
Near miss cases of NIED the plaintiff usually must satisfy two requirements to prevail:
- The plaintiff must be within the “zone of danger”
- The plaintiff must suffer physical symptoms from the distress
For NIED the 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.
In a near miss case, most courts require that the emotional distress caused by defendant’s conduct manifest itself in ___
physical symptoms (minority of states have dropped this requirement)
A bystander outside the “zone of danger” of physical injury who sees the defendant negligently injuring another can recover damages for their own distress as long as:
- The plaintiff and the person injured by the defendant are closely related (spouse, parent, minor child)
- The plaintiff was present at the scene of the injury and personally observed or perceived the event
+ Most states drop the requirement of physical symptoms in this situation.
The defendant may be liable for directly causing the plaintiff severe emotional distress when a duty arises from the relationship (typically
____ in nature) between the plaintiff and a defendant, such that the defendant’s negligence has ____
commercial; great potential to cause emotional distress
Note: Most states drop the requirement of physical symptoms in this situation as well.
Two common examples that meet the criteria for there being a special relationship between pl/def for NIED
patient/medical laboratory (false positive due to negligence); customer/funeral parlor (negligent cremation against families wishes, loss body/remains)
The plaintiff may use one of the following theories to show proof of the breach:
- Custom or usage
- Violation of statute
- Res ipsa loquitor
Whether the duty of care is breached in an individual case is a question for ____
the trier of fact
When the standard of care is “reasonable prudence,” evidence of the ____ of others may be used to establish how a reasonable person should have behaved under the circumstance. However, this evidence is ____ on the question of whether certain conduct amounted to negligence
custom or usage; not conclusive
RES IPSA LOQUITUR - basic idea
In some cases, the very occurrence of an event may tend to establish a breach of duty.
The doctrine of res ipsa loquitur requires the plaintiff to show that:
- The accident causing the injury is a type that would not normally occur unless someone was negligent
- The negligence is probably attributable to the defendant (meaning this type of accident ordinarily happens because of the negligence of someone in the defendant’s position)
–> This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant.
Effect of Res Ipsa Loquitur
Where res ipsa loquitur is established, the plaintiff has made a prima facie case and no directed verdict may be given for the defendant.
- The plaintiff can still lose, however, if the inference of negligence is rejected by the trier of fact.
Re: causation for liability to attach, the plaintiff must show both ____
factual cause (actual cause) and proximate cause
An act or omission is a factual cause of an injury when the injury would not have occurred____ the act or omission.
“but for”
The “but for” test applies where several acts (each insufficient to cause the injury
alone) ____ to cause the injury. A defendant can refute this by showing that ____
combine; the plaintiff would have still been injured “even if” the act or omission did not occur.
Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, the defendant’s conduct is the cause in fact if ____
it was a substantial factor in causing the injury
The UNASCERTAINABLE CAUSE APPROACH applies when there are two acts, only one of which causes injury, but ____. The burden of proof shifts to ____, and each must show that his negligence is not the actual cause.
it is not known which one; defendants
Under the merged causes approach, ___ parties caused the harm. Under the unascertainable causes approach, although both parties acted negligently, only ___ caused the harm.
both; one
“Eggshell-skull” plaintiff rule.
In all cases, the defendant takes the plaintiff as they find the plaintiff; meaning, the defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable.
The doctrine of proximate causation is a ____ and deals with liability or non-liability for unforeseeable or unusual consequences of one’s acts.
limitation of liability
Proximate cause - general rule
A defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts. This is a foreseeability test!
The defendant is liable when their negligence caused a ____ from an intervening force or created a ____ that an intervening force would harm the plaintiff.
foreseeable reaction; foreseeable risk
The following intervening forces that are normal responses or reactions to the situation created by the defendant’s negligent act are almost always foreseeable:
- 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
Intervening forces that are not just a natural response or reaction to the situation created by the defendant’s conduct may be foreseeable
if ____. These intervening forces include:
the defendant’s negligence increased the risk of harm from these forces.
(1) negligent acts of third persons,
(2) crimes and intentional torts of third persons, and
(3) acts of God.
Intervening forces that produce unforeseeable results (results not within the increased risk created by the defendant’s negligence) are
generally deemed unforeseeable and ___
superseding (Superseding forces break the causal connection between the defendant’s initial negligent act and the plaintiff’s ultimate injury, thus relieving the defendant of liability)
Damages for personal injury claims
- The plaintiff is to be compensated for all their damages (past, present, and prospective), both economic damages (such as medical expenses) and noneconomic damages (such as pain and
suffering). - A plaintiff suffering physical injury also may recover damages for any resulting emotional distress.
Damages for property damage claims
The measure of damage is the reasonable cost of repair or, if the property is totally or nearly destroyed, its fair market value at the time of the accident.
Emotional distress damages generally cannot be recovered for ___ harm to property.
negligent
Ex: Under this last stated rule, a person cannot recover for emotional distress if another party
negligently injures or kills their pet.
Punitive damages generally are not available in ___ cases.
However, a plaintiff may recover punitive damages if defendant’s conduct is ____
negligence
“wanton and willful,” reckless, or malicious.
Nonrecoverable items include:
(1) interest from the date of damage in a personal injury action (sometimes called “pre-judgment interest”), and
(2) attorneys’ fees.
As in all cases, the plaintiff has a duty to take reasonable steps to ____ damages (for example, seek appropriate treatment).
mitigate
Damages are not reduced just because the plaintiff received ____
benefits from other sources (for example, health insurance).
The standard of care for contributory negligence is ____
the same as for ordinary negligence
Contributory negligence is a defense to negligence proved by the defendant’s violation of an applicable statute unless ____
the statute was designed to protect this class of plaintiffs from their incapacity and lack of judgment
Contributory negligence is not a defense to ___ misconduct or ____ tortious conduct.
wanton and willful; intentional
____ negligence completely barred the plaintiff’s right to recovery at common law. However, almost all jurisdictions now favor a ____ negligence system
Contributory; comparative
Last Clear Chance
An Exception to Contributory Negligence: permits a plaintiff to recover despite their contributory negligence. Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. (doesn’t apply in comparative negligence jurisdictions)
Last clear chance rule: In many states, if the plaintiff is in _____ the defendant will be liable if they knew or should have known of the plaintiff’s predicament.
“helpless peril,”
Last clear chance rule: In ____situations , the defendant must actually have known of the plaintiff’s predicament
“inattentive peril” (that is, where the plaintiff could have extricated themselves if attentive)
For the last clear chance doctrine to apply, the defendant must have been able, but failed, to _____. If the defendant’s only negligence occurred earlier, the doctrine will not apply.
avoid harming the plaintiff at the time of the accident
As a general rule, the contributory negligence of a third party will be imputed to a plaintiff (and bar the plaintiff’s claim) only when ____
the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party’s
negligence.
–> Negligence is imputed in employer-employee, partner, and joint venturer relationships. Negligence is not imputed between spouses, parent and child, and automobile owner and driver.
The plaintiff may be denied recovery if they assumed the risk of any damage caused by the defendant’s act. The plaintiff must have:
- Known of the risk and
- 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.
Exceptions to implied assumption of the risl
- The plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an 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.
Assumption of the risk may be either”
express or implied
Assumption of risk is not a defense to ____ torts, but it is a defense to ____ misconduct.
intentional; wanton and willful
In comparative negligence states, the plaintiff’s contributory negligence is not a ___
complete bar to recovery.
In a comparative negligence jurisdiction there
are no rules governing the assignment of fault; the numbers are ____
left to the discretion of the jury.
Types of comparative negligence regimes:
- Partial comparative negligence: bars the plaintiff’s recovery if their negligence was more serious than the defendant’s negligence (or in some states at least as serious as the defendant’s).
–> If more than one defendant has contributed to the plaintiff’s injury, the plaintiff’s negligence
will be compared with the total negligence of all the defendants combined. - Pure comparative negligence: allows recovery no matter how great plaintiff’s negligence was.
On the MBE, assume that ____ comparative negligence applies unless the question states otherwise.
pure
Assumption of the risk in comparative negligence jurisdctions
- Express assumption of risk is a complete defense.
- Implied assumption
of risk is analyzed as either: (1) a limitation on the duty owed to the plaintiff; or, more commonly, (meaning the defendant does not owe a duty to protect the plaintiff against known risks such as being hit by a foul ball at a baseball game);
(2) contributory negligence (meaning, the plaintiff unreasonably encountered a known risk, thereby reducing or barring their damages under the state’s comparative negligence rules).
Wanton and Willful Conduct in a comparative negligence jurisdiction
- The plaintiff’s negligence will be taken into account in most states even though the defendant’s conduct was “wanton and willful” or
“reckless.” - However, the plaintiff’s negligence is still no defense to intentional tortious conduct by the defendant.
Three categories of strict liability
- Liability for animals
- Abnormally dangerous activities
- Injuries caused by defective products (gets complex and somewhat negligence-like)
An owner is not strictly liable for injuries caused by domestic animals (including farm animals) unless ____
they have knowledge of that particular animal’s dangerous propensities that are not common to the species (first bite rule)
Injury caused by the ____ characteristics of domestic animals (for example, bulls or honeybees) does not create strict liability.
normally dangerous
In regards to animals don’t forget to consider that a landowner may be liable on intentional tort grounds for injuries inflicted by ____
vicious watchdogs.
Liability for Trespassing Animals
An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals.
Strict Liability for animals and 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.
Courts generally impose two requirements for finding an activity to be abnormally dangerous:
- The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors
- The activity is not a matter of common usage in the community
Common examples of abnormally dangerous activities include ____
blasting or manufacturing explosives, storing or transporting dangerous chemicals or biological materials, and anything involving radiation or nuclear energy.
Limitations on SL from abnormally dangerous activities
- The defendant’s liability extends only to foreseeable plaintiffs
- The harm must result from the kind of danger to be anticipated from the dangerous activity (or animal) including harm caused by fleeing from the perceived danger.
Strict liability for abnormally dangerous activities does not apply when the injury is caused by something ____
other than the dangerous aspect of the activity (for example, a dynamite truck suddenly blows a tire and hits a pedestrian but does not explode).
The exercise of reasonable care will ____ the defendant of liability in a strict liability situation.
not relieve
Theories of liability for products liability that a plaintiff may use:
- Intent
- Negligence
- Implied warranties of merchantability and fitness for a particular purpose
- Representation theories (express warranty and misrepresentation)
- Strict liability
To find liability under a strict liability theory, the plaintiff must show:
- The defendant is a merchant (in other words, a commercial supplier of the product)
- The product is defective
- The product was not substantially altered since leaving the defendant’s control
- The plaintiff was making a foreseeable use of the product at the time of the injury
Any ____ can be held liable as a merchant under product SL.
commercial supplier
____ sellers will not be held strictly liable for product injuries.
Casual
Strict products liability applies only to ____. Even when a product is provided ____, there is no strict liability.
products
incident to a service (for example, blood during an operation) –> The plaintiff may, however, sue in negligence.
Most states include commercial _____. In other words, those who ____ rather than sell products also can be held strictly liable
lessors; rent
Commercial suppliers include manufacturers, wholesalers, and retailers. ____ is not required—users, consumers, and bystanders can sue.
Privity
–> Remember that any foreseeable plaintiff, including a bystander, can sue any commercial supplier in the chain of distribution regardless of the absence of a contractual relationship between them.
Types of product defects
- Manufacturing Defects
- Design Defects
- Information Defects
Manufacturing Defects
If a product emerges from manufacturing different from and more dangerous than the products that were made properly, it has a manufacturing defect.
Pl. showing for Manufacturing Defects
The defendant will be liable if the plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect (the defendant must anticipate reasonable misuse)
Design Defects
When all products of a line are the same but have dangerous propensities, they may be found to have a design defect.
Manufacturers will not be held liable for some dangerous products (for example, knives) if ____
the danger is apparent and there is no safer way to make the product.
Pl. showing for Design Defects
The plaintiff usually must show that the defendant could have made the product safer, without serious impact on the product’s utility or price (the “feasible alternative” approach).
A product’s noncompliance with government safety standards establishes that ____, while compliance with safety standards (including labeling requirements) is evidence—but ____—that the product is not defective.
it is defective; not conclusive
Information Defects
A product may be defective as a result of the manufacturer’s failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users.
For prescription drugs and medical devices, warnings given to ____ will usually suffice in lieu of warnings to the patient.
“learned intermediaries” (for example, the prescribing physician)
The plaintiff must show that the product has not been significantly altered since it left the defendant’s control. If the product moved
through normal channels of distribution, it will be inferred that ____
the product was not altered and that the defect existed when the product left the defendant’s control.
The plaintiff must have been making a ____ use of the product at the time of the injury.
foreseeable (A defendant will not be held liable for dangers not foreseeable at the time of marketing)
Remember a “foreseeable” use does not mean an ____ or ___ use.
“intended”; an “appropriate”
–> Many products are commonly misused in ways that could be considered foreseeable.
Nature of Damages Recoverable for product SL
Physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic loss.
Disclaimers are ____ in strict liability cases if personal injury or property damages occur.
irrelevant
Negligence in a products case is proved in ____
Negligence in a products case is proved the same as in a “standard” negligence case.
-> As is the case in that context, the plaintiff may invoke res ipsa loquitur if the defect is something that would not usually occur without the manufacturer’s negligence
It is very difficult to hold intermediaries
(such as retailers and wholesalers) liable for negligence because they can usually satisfy their duty through _____. In addition, an intermediary’s negligent failure to discover a defect does not supersede the original manufacturer’s negligence ____
a cursory inspection; unless the intermediary’s conduct exceeds ordinary foreseeable negligence.
Who can sue under negligent product liability action
Privity with the defendant is no longer required, so any foreseeable plaintiff can sue.
Nature of Damages Recoverable - negligent product liability action
Physical injury or property damage must be shown. (Recovery will be denied if the sole claim is for economic loss.)
Negligent product liability action - effect of disclaimers
As with strict liability, disclaimers are irrelevant in cases based on negligence if personal injury or property damages occur.
There are two warranties implied in every sale of goods that can serve as the basis for a suit by a buyer against a seller:
- Merchantability
- Fitness for a particular purpose
Implied warranty of Merchantability, which refers to whether the goods are of average
acceptable quality and are generally fit for the ordinary purpose for which the goods are used. Goods that are likely to injure users even when ____ are quite obviously in breach of this warranty and will subject the seller(s) to liability.
handled properly
Who Can Sue? for the two implied warranties in product sales
Most courts no longer require vertical privity. Most states adopted a narrow version of the horizontal privity requirement = This means the buyer, family, household, and guests can sue for personal injuries. These warranties also generally apply to a lease of goods.
What Constitutes Breach of the implied warranties in product sales:
If the product fails to live up to either of the above standards, the warranty is breached and the defendant will be liable. The plaintiff does not have to prove any fault on the part of defendant.
Damages recoverable under implied warranty of merchantability or fitness for a particular purpose?
Personal injury and property damages, and purely economic loss (unlike SL or negligence theories), are recoverable.
Effect of disclaimers under implied warranty of merchantability or fitness for a particular purpose?
Disclaimers are generally rejected in personal injury cases but upheld for economic loss.
A defendant may be liable when a product does not live up to some affirmative representation. The two representation theories are:
- Express warranty
- Misrepresentation of fact
Express Warranty
Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty. An express warranty may also be made in a lease of goods.
Who Can Sue? - representation theories of product liability
Any consumer, user, or bystander can sue. If a buyer sues, the warranty must have been “part of the basis of the bargain.” If the plaintiff is not in privity (for example, a bystander), they
need not have relied on the representation as long as someone did.
Breach under representation theories of product liability
Fault need not be shown to establish breach. Plaintiff need only show that the product did not live up to its warranty.
Effect of disclaimers - representation theories of product liability
A disclaimer will be effective only in the unlikely event that it is consistent with the warranty.
A seller will be liable for misrepresentations of facts concerning a product where:
- The statement was of a material fact concerning quality or uses of goods (mere puffery insufficient)
- The seller intended to induce reliance by the buyer in a particular transaction
Liability for misrepresentation of fact is usually based on ____ but may also arise for
intentional or negligent misrepresentations.
strict liability
For misrepresentation of fact theory of product liability justifiable reliance is required (in other words, the representation was a substantial factor in inducing the purchase). Reliance
need not be the ____.
victim’s (it may be a prior purchaser’s) = Privity is irrelevant.
For misrepresentation of fact theory of product liability assumption of risk is not a defense if the plaintiff is ____
entitled to rely on the representation.
Contributory negligence defense to SL:
- Contributory negligence is no defense if the plaintiff has failed to realize the danger or guard against 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 or abnormally dangerous activity or defective product.
Assumption of the risk is ____ defense to strict liability.
a good
Comparative negligence defense to SL:
Many comparative negligence states apply their comparative negligence rules to strict liability cases.
A nuisance is ____ by tortious conduct.
an invasion of property rights
There are two types of nuisance:
private and public.
Private nuisance is ____
a substantial, unreasonable interference with
another private individual’s use or enjoyment of property that the other individual actually possesses or has a right of immediate possession.
Substantial interference is interference that is ____
offensive, inconvenient, or annoying to the average person in the community.
It is not substantial interference (and thus nuisance) if it is merely the result of ____
the plaintiff’s hypersensitivity or specialized use of their own property.
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
-> In balancing these respective interests, 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 courses of conduct open to the defendant.
In a trespass, there is an interference with the landowner’s exclusive possession by ____; in a private nuisance, there is an interference with ____.
a physical invasion; use or enjoyment
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.
Remedies for nuisance
- Damages: The plaintiff usually will be awarded damages.
- Injunctive Relief: If the legal remedy of damages is unavailable or inadequate (for example, the nuisance will cause irreparable injury), injunctive relief will be awarded.
- Abatement by Self-Help (with rules)
In considering injunctive relief for a nuisance, the court will consider the relative
hardships. However, hardships will not be balanced if ____
the defendant’s conduct was willful.
In the case of a private nuisance, self-help abatement is available after ____. Only ___ force may be used.
notice to the defendant and their refusal to act; necessary
In public nuisance cases, only a ____ or a private party who has ____ can seek an injunction or abatement.
public authority; suffered some unique damage
____ for “nuisance activity” (for example, a zoning ordinance) is not an absolute defense but is persuasive.
Legislative authority
No one actor is liable for all damage caused by ____ of their acts and others.
concurrence
Ex: Ten steel mills are polluting a stream. Each steel mill is responsible only for the pollution it causes.
Contributory negligence generally is no defense to nuisance unless _____
the plaintiff’s case rests on a negligence theory.
One may ____ and, thereafter, pursue an action. It is generally not a bar to the plaintiff’s action unless the plaintiff “came to the nuisance” for the ____
“come to a nuisance” (purchasing land next to an already existing nuisance)
sole purpose of bringing a harassing lawsuit.
Vicarious liability is liability that is ___ imposed. This means that one person (the ____ tortfeasor) commits a tortious act against a third party and another person (the ____ tortfeasor) will be liable to the third party for this act.
derivatively
active; passive
The basic situations that you should note for bar examination purposes where vicarious liability MAY be imposed:
- Employer-Employee
- Independent Contractor Situations
- Partners and Joint Venturers
- Automobile Owner for Driver
- Bailor for Bailee
- Parent for Child
- Tavernkeepers
An employer will be vicariously liable for tortious acts committed by their employee if (“doctrine
of respondeat superior.”):
the tortious acts occur within the scope of the
employment relationship
Frolic vs. Detour
An employee making a minor deviation from their employer’s business for their own purposes is still acting within the scope of employment = mere frolic
If the deviation in time or geographic area is substantial,
the employer is not liable = detour!
It is usually held that ____ tortious conduct by employees is not within the scope of employment. Exceptions to this:
intentional
- The employee is furthering the business of the employer, for example, removing customers from the premises because they are rowdy
- Force is authorized in the employment, for example, a bouncer
- Friction is generated by the employment, for example, bill collector
Employers may be liable for their own negligence by ____
negligently selecting or supervising their employees
General Rule - vicarious liability for independent contractors
In general, the hiring party (the principal) will not be vicariously liable for the tortious acts of an independent contractor (the agent) when the hiring party does not control the manner and method in which the independent contractor performs the job.
Exceptions to Independent Contractor general rule
Where a duty is simply nondelegable such as the duty of a business to keep its premises safe for customers.
The employer may be liable for their ____ in selecting or supervising the independent contractor
own negligence
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.
The 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.
A number of states have now gone further by imposing liability on the owner for damage caused by anyone driving with the owner’s consent (minority rule!). However, under a 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.
An owner may be liable for their own negligence in entrusting the car to ___. Some states have also imposed liability on the owner if _____ at the time of the accident, on the theory that they could have prevented the negligent driving, and hence were negligent in not doing so.
a driver; they were present in the car
The car owner will be liable if the driver is acting as the ____, for instance using the car to perform an errand for the owner.
owner’s agent
Under the general rule, the bailor is not vicariously liable for the tortious conduct of ____. As above, the bailor may be liable for their own negligence in ____
their bailee; entrusting the bailed object.
A parent is not vicariously liable for the tortious conduct of their child at ____. Note, however, that most states, ____, make parents liable for the ____ torts of their minor children up to a certain dollar amount (for example, $10,000).
common law; by statute; willful and intentional
Courts may impose vicarious liability if the child committed a tort while ____
acting as the agent for the parents.
The parent may be held liable for their own negligence in ____, for example, use a dangerous object without proper instruction. Furthermore, if the parent is apprised of
the child’s conduct on past occasions showing ____, they may be liable for not using due care in exercising control to mitigate such conduct, for example, by allowing the child to play with other children that they have a history of attacking.
allowing the child to do something; a tendency to injure another’s person or property
Tavernkeepers vicarious liability - CL rules
No liability was imposed on vendors of intoxicating beverages for injuries resulting from the patron’s intoxication, whether the injuries were sustained by the patron or by a third person as a result of the patron’s conduct.
Tavernkeepers vicarious liability - Modern law
- Many states, 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 (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability.
Under the traditional common law rule, when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be ____. If the injury is divisible, each defendant is liable ___
jointly and severally liable (that is, liable to the plaintiff for the entire damage incurred)
only for the identifiable portion.
When two or more defendants act in concert and injure the plaintiff, each is jointly and severally liable for the entire injury. This is so even if _____
the injury is divisible.
Many states have abolished joint liability in cases based on fault either (in these cases, liability will be proportional to the defendant’s fault):
(1) for those defendants judged to be less at fault than the plaintiff, or
(2) for all defendants regarding noneconomic damages.
Recovery of full payment is a “____.” Only ___ is allowed.
satisfaction; one
Until there is satisfaction, however, one may proceed against ____
all jointly liable parties.
In most states, a release of one tortfeasor does not ____ unless it is ____ for in the release agreement.
discharge other tortfeasors; expressly provided
____ are doctrines that determine how joint tortfeasors allocate between them the damages they must pay to a successful plaintiff.
Contribution and indemnity
–> Keep in mind that neither of these doctrines affects how much the plaintiff receives. Rather, they deal with claims by a defendant against other joint tortfeasors to determine how much of the total award each of them ultimately must pay.
The rule of contribution 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; in other words, it apportions responsibility among those at fault.
Methods of Apportionment
Comparative Contribution (majority): contribution is imposed in proportion to the relative fault of the
various defendants.
Equal Shares (minority): apportionment is in equal shares regardless of degrees of fault.
The contribution defendant must be ____ to the plaintiff. If the contribution defendant has a defense that would bar liability (such as intra-family tort immunity), they are ___ for contribution.
originally liable; not liable
Indemnification ____
involves shifting the entire loss between or among tortfeasors.
Contribution is not allowed among ____
intentional tortfeasors.
Indemnity is available in the following circumstances:
- In vicarious liability situations
- Under strict products liability for the non-manufacturer
To keep contribution and indemnity separate in your
mind, recall that, for contribution to apply, generally both
defendants must have a ____ of culpability
for the tort; on the other hand, indemnity usually applies when the paying defendant is ____ than the nonpaying defendant or is liable only vicariously because of their relationship with the nonpaying defendant.
measurable degree; much less responsible
LOSS OF CONSORTIUM: In any torts case where the victim is married, the spouse is granted an ____
individual claim against all the original def’s (derivate of the original claim = same defenses/arguments can be made)
LOSS OF CONSORTIUM: Between Spouses
Either spouse may bring an action for indirect interference with consortium and services caused by the defendant’s intentional or negligent tortious conduct against the other spouse.
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 parent.
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 (for example, defamation, invasion of right of privacy, malicious prosecution) expire upon the victim’s death.
Wrongful death acts grant recovery for pecuniary injury resulting to ____. Recovery is allowed only to the extent
that ____.
the spouse and next of kin; the deceased could have recovered in an action had they lived
-> Hence, the decedent’s contributory negligence reduces the wrongful death recovery in comparative negligence states. Similarly, a potential beneficiary’s contributory negligence reduces their share of the recovery in comparative negligence states.
A decedent’s ____ have no claim against the amount awarded in a wrongful death based suit.
creditors
Under the traditional view, one member of a family unit could not sue another in tort for personal injury. Today, most states have outright abolished ___ immunity.
spousal
A slight majority have also abolished ____ immunity (but generally do not allow children to sue merely for ____).
parent-child; negligent supervision
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.
In varying degrees, federal, state, and municipal tort immunity has been eliminated. Where it survives, immunity attaches to ____, not proprietary, functions.
governmental
Under the Federal Tort Claims Act, the United States has waived immunity for tortious acts. However, immunity will still attach 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 with contract
rights.
+ Immunity is also not waived for acts that are characterized as “discretionary” (those involving considerations of political or economic policy, usually made by senior officials); acts termed “ministerial” (those performed at the operational level of government) are not immune from liability.
Most states have substantially waived their immunity to the ____;
same extent as the federal government = hence, immunity is retained for discretionary acts and for legislative and judicial decisionmaking.
About ____ states have abolished municipal immunity to the same extent as for the state government.
half of the
Where municipal immunity has been abolished, 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.
–> Thus a city will not be liable to one whose house burns if its fire department negligently fails to respond to an alarm, because the provision of fire protection services is a public duty.
Where municipal immunity still exists, contrast “____” functions (functions that could only be performed adequately by the government) and “proprietary”
functions (functions that might as well have been provided by a private corporation). Courts limit application of sovereign immunity by ____
not granting it for proprietary functions.
The majority of jurisdictions have eliminated ____ immunity.
charitable
The elements of defamation are:
- A defamatory statement that specifically identifies the plaintiff
- Published to a third party
- Falsity of the defamatory language
- Fault on the part of the defendant
- Damage to the plaintiff’s reputation
A defamatory statement is ____.
one tending to adversely affect one’s reputation
A statement of opinion is actionable only if _____. ___ is insufficient.
it appears to be based on specific facts, and an express allegation of those facts would be defamatory
Name-calling
If the statement is not defamatory on its face, the plaintiff may plead additional facts as ____ to establish defamatory meaning by ____
“inducement”; “innuendo.”
Any ___ person may be defamed.
living, Defamation of a deceased person is not actionable.
In a limited sense, a corporation, unincorporated association, or partnership ___ defamed
may be (for example, by remarks as to its financial condition, honesty, integrity, etc.).
For defamation the plaintiff must establish that a reasonable reader, listener, or viewer would understand that _____
the defamatory statement referred to the plaintiff
If the statement does not refer to the plaintiff on its face, ____ may be offered to establish that the statement refers to the plaintiff. This is known as pleading ____
extrinsic evidence; “colloquium.”
Group defamation rules
- If the defamatory statement refers to all members of a small group, each member may establish that the statement specifically identifies them by alleging that they are a group member (in other words, every member of that small group wins!).
- If the statement only refers to some members of a small group, the plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff.
- If the statement is about a large group, no member can prove that the statement specifically identifies them (in that case, no one wins!).
Publication for defamation means
communication of the defamation to a third person
who understands it.
For defamation publication can be made either ___. It is the intent to ____, not the intent to ____, that is the requisite intent.
intentionally or negligently
publish; defame
Each repetition is a separate ___
publication
However, for magazines, newspapers, etc., most states have adopted a ____ rule under which all copies are treated as one publication.
“single publication”
An exam favorite is the situation where a defamatory statement about the plaintiff is made only to the plaintiff.
As a general rule, in this situation there is ____
no publication
and thus no defamation.
Who May Be Liable for defamation?
Primary publishers (for example, newspapers, TV stations, etc.) = liable to the same extent as the author or speaker.
One who repeats a defamation = liable on the same general basis as the primary publisher (even if she states the source or makes it clear that she does not believe the defamation).
One selling papers or playing audio files = secondary publisher and is liable only if he knows or should know of
the defamatory content.
An Internet service provider = not treated as a
publisher when a user of its service posts defamatory content.
Under traditional common law, the plaintiff did not have to prove that the statement was false. Rather the defendant was obliged to prove truth as a defense. Many states have altered that rule, however, and now require the plaintiff to _____
prove falsity as part of the case-in-chief.
If you see a true statement on the exam, consider whether the plaintiff may have a cause of action for ____
intentional infliction of emotional distress or invasion of right to privacy (unless the plaintiff is a public figure or a matter of public concern is involved).
For defamation a majority of states require a showing of ___ on the part of the defendant
fault
Under the New York Times v. Sullivan rule, ____ must be proved in defamation cases brought by public officials and public figures.
actual malice
What Constitutes a Public Figure?
A person becomes a “public figure” by achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy.
Actual malice (as defined by New York Times v. Sullivan) is:
- Knowledge that the statement was false OR
- Reckless disregard as to whether it was false
–> This is a subjective test. The defendant’s spite or ill will is not enough to constitute malice. Deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quotation.
When a private person is the plaintiff, only
____ regarding the falsity must be proved if the statement involves a matter of “public concern.” If the statement is not a matter of public concern, constitutional restrictions do ____
negligence; not apply (but note that many states require a showing of negligence as a matter of state law).
In a defamation claim against a private person if the defendant is negligent, only ____ damages are recoverable. However, if actual malice is found, damages may be , and ____ damages allowed.
“actual injury”
presumed; punitive
What Constitutes Actual Injury? [for negligence based defamation]
Actual injury is not limited to economic damages. It may include damages for impairment to reputation and personal humiliation as long as the plaintiff presents evidence of such damages (in other words, no presumed damages).
What Is a Matter of Public Concern?
To determine whether the defamatory statement involves a matter of public concern or private concern, the courts will look at the content, form, and context of the publication.
Note that the status of the plaintiff (public figure or private person) is relevant only for ____
the degree of fault required.
The type of damages the plaintiff must prove depends on the type of defamation (libel or slander) involved:
- Damages generally are presumed under the law of libel and slander per se
- Everything else: the plaintiff must prove that they suffered special damages—that is, they must have suffered some pecuniary loss in order to recover anything. But once the plaintiff has proved special damages, they may recover general damages as well.
Libel (+examples)
Libel is a defamation that is embodied in permanent form.
- It is often a written or printed publication of defamatory language.
- Defamation in
radio and television programs is treated by most courts today as libel.
Slander
Slander is spoken defamation.
The plaintiff must prove special damages, unless the defamation falls within one of the slander per se
categories. These are defamatory statements that:
- Adversely reflect on the plaintiff’s business or profession
- State that the plaintiff has committed a serious crime (this includes most common law crimes and is sometimes referred to as crimes involving “moral turpitude”)
- Impute that the plaintiff has engaged in serious sexual misconduct
- State that the plaintiff has a loathsome disease
Defenses to Defamation
- Consent
- Truth
- Privilege
Consent is a ____ to defamation.
complete defense
In cases where the plaintiff is not obligated to prove falsity of the statement as part of their own case, the defendant may prove ___ as a complete defense.
truth
Absolute privileges to defamation:
- Communications between spouses
- Remarks made during judicial proceedings, by legislators during proceedings (even if not related to the proceedings), by federal executive officials, in “compelled” broadcasts
Examples of qualified privileges to defamation:
- References and recommendations
- Reports of public hearings or meetings
- Statements made to those who are to take official action (for example, statements made to a parole board about a prisoner)
- Statements made to defend one’s own actions, property, or reputation
A qualified privilege arises only when ____. The ___ bears the burden of proving that a privilege exists. Whether a speaker has a qualified privilege will be determined on a ____.
there is a public interest in encouraging candor.
defendant; case-by-case basis
The qualified privilege may be lost if the statement is not within the scope of the privilege or it is shown that the speaker acted with ____
actual malice.
For defamation mitigating factors (for example, no malice, retraction, anger of the speaker provoked by the plaintiff) may be considered by the jury on the ____ issue; they are not ____ to liability.
damages; defenses
The right of privacy is a personal right and does not extend to ____. The right of privacy is not applicable to ___.
members of a family, does not survive the death of the plaintiff, and is not assignable; corporations
The invasion of the plaintiff’s interest in privacy must have been ____ caused by the defendant’s conduct.
proximately
The plaintiff need not plead and prove special damages. ____ are sufficient damages.
Emotional distress and mental anguish
Four kinds of wrongs in invasion of privacy actions:
- Appropriation of the plaintiff’s picture or name
- Intrusion on the plaintiff’s affairs or seclusion
- Publication of facts placing the plaintiff in a false light
- Public disclosure of private facts about the plaintiff
Appropriation of Plaintiff’s Picture or Name
- It is necessary to show unauthorized use of the plaintiff’s picture or name for the defendant’s commercial advantage.
- Liability is generally limited to advertisements or promotions of products or services.
–> Mere economic benefit to the defendant (not in connection with promoting a product or service) by itself is not sufficient.
Intrusion on Plaintiff’s Affairs or Seclusion
- This claim forbids such acts as eavesdropping, spying, interception of phone calls or electronic communications, and other similar conduct.
- The act of prying or intruding must be highly offensive to a reasonable person.
- Furthermore, the thing into which there is an intrusion
must be “private.”
–> Photographs taken in public places are not actionable.
Publication of Facts Placing Plaintiff in False Light
“False light” exists where one attributes to the plaintiff views they do not hold or actions they did not take. The false light must be something highly offensive to a reasonable person under the circumstances. For liability to attach, the defendant must circulate the statement to the public at large. Sharing the statement with only one or a few persons will not be sufficient to trigger liability.
For Publication of Facts Placing Plaintiff in False Light of the matter is of public interest, ___ on the defendant’s part must be proved.
actual malice
Public Disclosure of Private Facts About Plaintiff
This wrong involves public disclosure of private information about the plaintiff (for example, matters of public record are not sufficient). The public disclosure must be highly offensive to a reasonable person of ordinary sensibilities. Liability may attach even though the actual statement is true. First Amendment limitations probably apply if the matter is of legitimate public interest.
Some defenses to the right of privacy actions are ___ and the ____ defenses. ___ generally is not a good defense; nor is inadvertence, good faith, or lack of malice.
consent; defamation privilege
Truth
To establish a prima facie case for intentional misrepresentation requires:
- Misrepresentation of a material past or present fact
- Scienter (when the defendant made the statement, they knew or believed it was false or that there was no basis for the statement)
- Intent to induce the plaintiff to act or refrain from acting in reliance upon the misrepresentation
- Causation (actual reliance)
- Justifiable reliance
- Damages (the plaintiff must suffer actual pecuniary loss)
There are ____ defenses to intentional misrepresentation.
no
There is no general duty to disclose a material fact, unless the defendant:
(1) stands in a fiduciary relationship to the plaintiff;
(2) is selling real property and knows the plaintiff is unaware of, and cannot reasonably discover, material information about the transaction; or
(3) has spoken and their utterance deceives the plaintiff.
If a third party relies on the defendant’s representation, the defendant will be liable if ____
they could reasonably foresee that the third party would so rely.
____ concealment of a material fact may also constitute a misrepresentation.
Physical
Reliance generally is justifiable only on representations of _____. Reliance on opinion is justifiable only if the defendant offering the opinion has ____
fact (and the plaintiff is under no obligation to investigate the fact)
a superior knowledge of the subject matter.
A prima facie case for negligent misrepresentation requires:
- Misrepresentation by the defendant in a business or professional capacity
- Breach of duty toward a particular plaintiff
- Causation
- Justifiable reliance
- Damages
Generally, negligent misrepresentation is confined to misrepresentations made in a _____, and liability will attach only if reliance by the particular plaintiff could be ____
commercial setting; contemplated (for example, for negligent misrepresentation, foreseeability that the statement will be communicated to a third party does not make the defendant liable to the third party).
To establish a prima facie case for interference with business relations, the following elements must be proved:
- Existence of a valid contractual relationship between the plaintiff and a third party or valid business expectancy of the plaintiff
- The defendant’s knowledge of the relationship or expectancy
- Intentional interference by the defendant inducing a breach or termination of the relationship or expectancy
- Damages
As a defense to interference with business
relations the defendant’s conduct may be privileged if it is a ____
proper attempt to obtain business for itself or protect its interests
A privilege in defense to interference with business is more likely to be found if the defendant:
(1) interfered only with the plaintiff’s prospective business rather than with existing contracts;
(2) used commercially acceptable means of persuasion rather than unlawful or threatening tactics;
(3) is a competitor of the plaintiff seeking the same prospective customers; or
(4) has a financial interest in or responsibility for the third party, or is responding to the third party’s request for business advice.
