Torts Flashcards
Intentional Torts
Elements
• VOLITIONAL ACT by the defendant
• Intent; AND
• Causation
Intent
If person’s PURPOSE was to bring about the consequence OR
the person knows to a substantial certainty that the result could occur
Super-sensitivities
Not taken into account unless the defendant knew of them beforehand.
Transferred intent
When D intends to commit one tort against one person but instead diff tort, different person or both.
Torts that intent transfers • Battery • Assault • False Imprisonment • Trespass to Land • Trespass to Chattels
Minors and incompetents
Maj. Both minors and incompetents will be liable for their intentional torts.
OHIO: children under the age of 7 are not liable for intentional torts.
Battery
- Intent to cause harmful or offensive touching
- An act by the defendant brings about the harmful or offensive touching to the person of the plaintiff
- Causation
The person does not have to be aware of the touching
No need to prove damages. Nominal damages are enough.
You can Transfer intent
Harmful or Offensive Touching
Harmful or Offensive TO a reasonable person of ordinary sensibilities.
Offensive if no permission given.
Permission is given for incidental day to day contact.
Exception: if the tortfeasor knew of the person’s special sensitivity
Dr. operating on wrong w/o consent is battery even if no harm.
Plaintiff’s Person
Touching can include things that are closely associated with or connected to the person.
A plate, a purse, shaking a car with the Plaintiff inside.
Causation
D is liable for direct and indirect contact. If D sets in motion a force that brings about harmful or offensive contact to the plaintiff’s person.
Assault
Elements
• Intent to cause apprehension of immediate harmful or offensive touching with the plaintiff’s person
• An ACT by the defendant to cause APPREHENSION of immediate harmful or offensive touching
• CAUSATION
You don’t need to prove damages, nominal damages will work.
You can transfer intent
APPREHENSION
The apprehension must be Reasonable, not exaggerated (unless defendant knows of the unreasonable fear).
Apprehension is not fear. It is the expectation.
Person MUST be aware of the apprehension.
The actual ability of the person doesn’t matter, it is the APPEARANCE that the tortfeasor has the ability to do it.
BUT in order for the apprehension to be REASONABLE, the tortfeasor must have the APPARENT ability to do it.
Effect of words
• Some OVERT ACT is necessary
o Words are not enough because they cannot create a REASONABLE apprehension of contact. The act may not be huge, e.g. clenching a fist
o BUT words MAY NEGATE an assault, I’d hit you if I wasn’t such a good guy.
• Conditional threat is sufficient
o Mugger says, give me your wallet and no one gets hurt.
Requirement of Immediacy
Apprehension of an immediate act only, future acts not sufficient.
Causation
The apprehension must have been legally caused by the defendant’s act or by something he set in motion, directly or indirectly.
False Imprisonment
• Intent to confine or restrain the person in a bounded area
• Act that confines or restrains the person in bounded area
• Causation
NO NEED TO RESIST
Time of confinement: immaterial, except as to damages
P must be aware of the imprisonment, or injured.
You can transfer intent.
You do not need to prove damages, nominal damages is enough. If motivated by Malice you might get punitive.
Sufficient Methods of Confinement or Restrain
- Physical Barriers
- Physical force: Restraint by physical force directed at him or member of his immediate family or his property
- Direct threats of force: against P, P’s immediate family
- Indirect threats: words or acts that REASONABLY imply a threat of force against P, P’s family or property.
- Failure to provide Means of escape: When P has lawfully come under D’s control, and P CANNOT leave w/o D’s assistance, D has an AFFIRMATIVE DUTY to provide a means of escape.
- Invalid Use of Legal Authority (False Arrests)
False Arrests
An arrest or detention made through legal process, warrant, is not false arrest.
HOWEVER, if arrest for a criminal offense WITHOUT a warrant is unlawful, and may constitute false imprisonment
When Arrest are privileged?
• Felony Arrests w/o warrant: by police officer (or private citizen acting at the officer’s direction) valid if officer has REASONABLE GROUNDS that a felony has occurred and the person arrested did it.
• Private person arrest: only if felony IN FACT occurred AND the private person had REASONABLE GROUNDS that person did it
Ohio: OR when he reasonably believed a felony had been committed
• Misdemeanor arrest: by officer or private person privileged if the misdemeanor was a BREACH OF THE PEACE AND committed in presence of arresting party
• Arrests to Prevent a Crime w/o a Warrant: police and private persons privileged if it reasonable appears that felony or breach of peace is being or about to be committed.
Amount of Force Allowable
- Felony: use force reasonably necessary to make arrest, deadly force ONLY if suspect poses threat of serious harm to others (including arresting party).
- Misdemeanor: use force necessary to make arrest BUT NEVER deadly force.
Shoplifting Detentions
Elements
• REASONABLE BELIEF as to the fact of theft
• Detention must be conducted in a REASONABLE MANNER, No deadly force
• Detention must only be for REASONABLE PERIOD OF TIME and ONLY for purposes of making an investigation
Insufficient Forms of Confinement or Restraint
- Moral Pressure: not enough
* Future Threats: not enough
BOUNDED AREA
Plaintiff’s freedom of movement in all directions must be limited. No reasonable means of escape known to the prisoner. A bounded area can be moving.
Intentional Infliction of Emotional Distress
Elements
• An ACT by D, that is EXTEREME and OUTRAGEOUS conduct.
• Intent to cause P to suffer severe emotional distress OR recklessness as to the effect of D conduct
• Causation
• DAMAGES: SEVERE emotional distress
Extreme and Outrageous Conduct
Conduct that transcends all bounds of decency tolerated by society.
Conduct may become outrageous if continuous.
• Extreme Business Conduct: Extreme methods of collection, repeated.
• Misuse of Authority: in some circumstances, teacher bullying students
• Offensive or Insulting Language: Generally NOT, BUT if SPECIAL RELATIONSHIP between P and D OR a Sensitivity on P’s part which the D is aware
• Special Relationship: Common carriers and innkeepers.
• Known Sensitivity: children, pregnant women, and elderly.
Bystander cases
When D causes physical harm to third person AND P suffers severe emotional distress because of her relationship to the injured person. MUST SHOW
• P was PRESENT when the injury occurred to the other person
• P was close relative to injured person
• D KNEW that P was present AND close relative of injured person
DON’T NEED presence or family relationship IF D had a design or purpose to cause severe distress to P.
Mishandling Corpses
Allows recovery where mental distress occurs under intentional infliction of emotional distress.
ACTUAL DAMAGES REQUIRED
Not necessary to have PHYSICAL damages BUT need to prove SEVERE emotional distress (more than a reasonable person could be expected to endure).
Punitive damages when Δ’s conduct improperly motivated.
Trespass to Land
Elements
• An ACT by D of physical invasion on P’s land
• D’s INTENT to cause physical invasion of P’s land
• Causation
TRANSFERRED INTENT applies.
DAMAGES: damages presumed, no need to show damages.
PHYSICAL INVASION
- Defendant Need not Enter onto Land. Floods P land, chases someone else on to P land, throws a rock
- Lawful Right of Entry expires. Allowed you to stay then night but you stay a week.
- If No Physical Object Enters Land: NOT trespass (more like a nuisance or strict liability)
- Land: the usable air and subsurface.
INTENT
Mistake IS NO DEFENSE, as long as you INTENDED to enter upon the land.
WHO IS THE PLAINTIFF in Trespass to land
ANYONE in ACTUAL or CONSTRUCTIVE POSSESSION (even if no title).
IF no one in possession the TRUE OWNER is presumed in possession.
LESSEE: some allow damages only to extent that trespass damages the LEASEHOLD interest.
Others allow full recovery for all damage done, BUT req. Lessee account to lessor for excess over damages to the leasehold.
Trespass to Chattels
ELEMENTS
• Act of defendant that interferes with plaintiff’s right of possession in the chattel
• Intent to perform the act that interferes with the plaintiff’s right of possession
• Causation; and
• Damages: no nominal damages BUT loss of possession is deemed to be an actual harm
TRANSFERRED INTENT: applies
Interference
ANY act of interference will suffice
• Intermeddling: conduct that serves to directly damage P’s chattels: denting car, hitting P’s dog
• Dispossession: conduct on D’s part serving to dispossess plaintiff of lawful right to possess
INTENT for Trespass to Chattels
Mistake as to the lawfulness of D’s actions is NOT DEFENSE. Intent to do the act of interference is sufficient. (not the intent to trespass)
WHO CAN BRING TRESPASS TO CHATTELS
ANYONE with possession OR the immediate RIGHT to possession.
Conversion
ELEMENTS
• An ACT of interfering w/ P right to possess, SERIOUS ENOUGH, to warrant full value of the chattel
• INTENT to perform that act
• CAUSATION
ACTS OF CONVERSION
- Wrongful acquisition, theft
- Wrongful transfer, selling,
- Wrongful detention, not returning
- Substantially changing
- Severely damaging or destroying
- Misusing the chattel
MERE INTENT TO PERFORM ACT REQUIRED:
Bona fide purchaser may be liable if it was stolen from true owner
• Accidental Conduct Insufficient, unless act using chattel w/o permission when accident occurred.
SERIOUSNESS OF INTERFERENCE OR CONSEQUENCE
A momentary taking or movement it is not enough.
Conversion if person refuses to return when asked OR ALTERS it.
The LONGER the withholding period and the more extensive the use during the time, more likely conversion occurred.
SPECIAL SITUATION OF BAILEES RECEIVING STOLEN PROPERTY
bailee takes w/o notice and returns to thief w/o liability, but if bailee has notice and returns to thief he is liable
SUBJECT MATTER OF CONVERSION
ONLY tangible personal property and intangibles that have been reduced to physical form, and docs. In which title to the chattel is merged (bill of lading or warehouse receipt). Real property and intangible CANNOT be CONVERTED.
WHO CAN BRING THE ACTION
Anyone with POSSESSION or the IMMEDIATE RIGHT TO POSSESSION may maintain action. But if not true owner must account to true owner.
REMEDIES for conversion
- Damages: FMV of chattel as of time and place of conversion. (tortfeasor gets title)
- Replevin: give it back
Consent
- Express
- Implied
Capacity required, Incompetents, drunken persons, and very young children deemed incapable of consent (Consent of parent necessary)
Cannot exceed consent granted
Express Consent
Consent by mistake: still valid UNLESS D caused the mistake OR KNOWS of the mistake
CONSENT INDUCED BY FRAUD; not a defense if the fraud goes to essential matter. IF the fraud goes to a nonessential matter consent is still a defense
Consent Obtained by Duress, is invalid, BUT threat of future action or some future economic deprivation is not duress
Implied Consent
Apparent Consent: a reasonable person would infer consent from P’s conduct.
ALSO inferred from USAGE and CUSTOM
Consent implied by Law:
where action necessary to save a person’s life, or important interest in property. Like emergency surgery to unconscious person.
Consent Criminal Act:
Maj. View, a person cannot consent to a criminal act, Min. consent to criminal act is valid defense
a. Modern Trend: consent is ineffective against illegal acts that are breaches of the peace, but is in those not breaches of peace.
Street fighting consent is ineffective.
b. Consent Invalid Where law seeks to protect members of victim class: consent not good (like statutory rape)
Self-Defense:
When person has reasonable grounds that he is being or is going to be attacked, he may use force necessary to protect against injury.
Retaliation Not Allowed.
Retreat not necessary, maj. No retreat, growing trend says you must retreat before using deadly force, UNLESS in your home. (OHIO must retreat Except in home or work or can’t do it in complete safety)
Not available to Aggressor: BUT if other uses deadly force, the aggressor may defend self with deadly force.
Defense of Others
If actor has reasonable belief that person aided would have right of self defense. (even if he doesn’t)
Only the amount of force reasonable.
Defense of Property
May use reasonable force (no deadly force)
• Request to Desist Usually Required, unless futile or dangerous
• Effect of Mistake: mistake allows as to the property owner’s right to use force or whether intrusion occurred, or whether request to desist needed
BUT mistake NOT allowed, where entrant has privilege to enter, then property owner is liable, UNLESS entrant intentionally or negligently caused mistake.
Limited to Preventing Commission of Tort against the property: until tort is complete, unless in hot pursuit
• Superseded by Other Privileges: like necessity, reentry, right to enter to recapture chattels
Reentry onto Land
Modern: use summary procedures, self-help not allowed
Common law: if tortuously disposed, could use reasonable force to regain possession.
Recapture of Chattel
Same as that of land, only peaceful means to recover, force only if in hot pursuit
Timely demand req, unless futile or dangerous
Recovery Only from Wrongdoer: not against third parties
Only reasonable force, NOT death or serious bodily harm
Entry upon land to remove
Wrongdoer’s land. Privileged to enter the land and reclaim at reasonable time and in a reasonable manner. Generally req. demand before such entry.
On land of innocent Party: at a reasonable time, and in a peaceful manner when landowner given notice and refuses to return it. Chattel owner liable for any actual damage caused by entry
On land through Owner’s own fault: NO privilege. Only legal process
Privileged Arrest
Invasion of Land: privilege entry on to another’s land for purpose of effecting arrest
Subsequent Misconduct: still liable for misconduct afterward
Mistake that you are privilege you may be liable
Necessity
May interfere with real or personal prop of another if reasonably and apparently necessary to avoid threatened injury from nature or another. As long threatened injury more serious than the invasion being avoided.
- Public necessity: where act is for public good, defense is absolute
- Private Necessity: where the act is solely to benefit any person or to protect any property the defense is qualified, actor must pay for any injury he causes.
Discipline
Parent or teacher may use reasonable force in disciplining children
Defamation (common law)
Elements • defamatory statement that turns out to be false • of and concerning Π • publication to a third party • damages
Defamatory Statement
A defamatory statement: statement that injures the plaintiff’s reputation as to honesty, trustworthiness, morality, or integrity that lowers reputation in the eyes of the community.
NAME CALLING is not enough.
BUT Truth is a valid defense. Δ has the burden of proving truth.
MUST BE a living person
Inducement and Innuendo
If statement is not defamatory on its face, Π may plead additional facts (inducement) to establish defamatory meaning by innuendo.
Of and concerning Π
Δ’s statement must be reasonable understood to refer to the Π.
If small group, yes refers to a member.
If larger group, no does not concern member.
Colloquium
If statement on its face does not refer to the Π, extrinsic evidence may be allowed in to establish that the statement refers to the Π. (pleading colloquium).
Publication to a third party
Must be communicated in an understandable fashion to a third person OTHER THAN the Π.
Publication must at least be negligently.
So if party took all the precautions possible no publication.
Primary publishers (TV newspaper) liable same as speaker.
repeating same liability.
One selling papers playing tapes only if knows or should have known of the defamatory conduct.
Damages
Slander-spoken defamation-Π must prove special damages.
Libel-written defamation or broadcasted-juries may presume damages.
Slander per se: juries may presume damages.
Slander per se
- Statement that impugn one’s conduct in trade or profession.
- Statement that once has committed crime involving moral turpitude.
- Statement that one has a loathsome disease.
- Statement that impugns the chastity of a woman
Truth Defense
If Δ can prove true, no defamation.
Constitutional Limitations
The First Amendment protects speech on matters of public concern.
Adds two requirements
• Falsity: Π must prove that the statement was false
• Fault:
o Public Person: must prove actual malice
Δ knew of falsity or acted in reckless disregard as to its falsity
A material change to a quote is reckless
o Private Person: most prove fault amounting to at least negligence.
Damage: ALL Πs must prove ACTUAL malice to recover presumed or punitive damages.
IF actual damages shown for private person, malice is still needed for punitive. if no malice only actual can be recovered.
Absolute Privilege
• Statements made in judicial proceedings
• Statements made in course of legislative proceedings
• Communications between spouses
privilege is NEVER loss.
Qualified Privilege
If abused it is gone. Lost if • not in the scope of the privilege • or if speaker spoke in malice Δ has burden to show privilege existed. Examples: • reports of official proceedings • statements in the interest of the publisher • statements in the interest of the recipient
Invasion of the Right to Privacy
Four branches
• Appropriation: use of Π’s name, picture, or likeness for commercial advantage without permissions. MUST be for advertising, promotional, or labeling purposes (newsworthy use OK) OHIO standard: for your benefit
• Intrusion: Interference w/Π’s seclusion in a way that would be objectionable to a reasonable person
Π must be in place where has an expectation of privacy.
• False light: widespread dissemination of info in some way inaccurate and would be objectionable to a reasonable person
• Public Disclosure of Private Facts: widespread dissemination of factually accurate information normally confidential and the disclosure of which would be objectionable to a reasonable person
Newsworthy disclosures not actionable.
Defenses to invasion of Right to privacy
Constitutional: If false light and matter of public concern then malice on part of Δ must be proved.
Consent is good defense.
Absolute and qualified privileges apply to false light and public disclosure of private facts.
Truth, inadvertence, good faith, or lack of malice are not good defenses.
Fraud
- Affirmative Misrepresentation by the Δ, not silence
- Fault: Scienter, Δ knew it was false
- Intention to Induce Reliance: must be material
- Justifiable Reliance: normally justifiable to rely on the opinion of one who has superior skill or knowledge in the subject matter of the transaction
- Damages
Negligent Misrepresentation
Confined to commercial transactions
Normally confined to the particular plaintiff whose reliance is contemplated.
Inducing Breach of Contract
Intentional action that causes a third person to breach an existing contract with the Π.
Interference with Contractual Relations
Δ may be liable if interference with a Π’s contractual relations makes performance more difficult, even if the interference does not actually cause a breach.
Interference with Prospective Economic Advantage
A Δ may be liable for interfering with a Π’s expectation of economic benefit from third persons, even in the absence of an existing contract.
Hard to prove.
Δs given a lot of latitude to protect their own economic interest.
Malicious Prosecution
- Institution of criminal proceedings against Π
- Termination in Π’s favor
- Absence of probable cause
- Improper purpose
- Damages
Most extend to civil proceedings too.
Abuse of Process
- Wrongful use of process for an ulterior purpose
* and a definite act or threat against plaintiff in order to accomplish an ulterior purpose
Negligence
Elements • Duty owed by defendant to plaintiff • Breach of that duty • Causation • Damages
To Whom is the duty owed?
General Rule: foreseeable plaintiffs
Andrews View: D owes duty of care to ANYONE who suffers injuries as a proximate result of his breach of duty to SOMEONE. P2 wins by showing D breached duty to P1.
Cardozo: Maj.: P2 must show that reasonable person would have foreseen the risk of injury to her in the circumstances (she was located in the foreseeable “zone of danger”)
Rescuers as Π
Rescuers ALWAYS foreseeable plaintiff if not wanton, BUT firefighter rule bars firefighters and police from injuries caused by the risks of rescue.
Prenatal Injuries
A reasonable duty of care IF fetus viable at time of injury (most have wrongful death if fetus dies)
Wrongful Life Action
Wrongful Life Action not recognized.
Failure to diagnose congenital defect of the fetus or properly perform a contraceptive procedure does NOT permit wrongful life action EVEN IF born handicapped.
Child suing the person.
Wrongful Birth and Wrongful Pregnancy
Parents can sue FOR EITHER failure to diagnose the defect (wrongful birth) or failure to properly perform contraceptive procedure (wrongful pregnancy)
Mom damages for labor. Defect: expense to care for child.
If healthy NO child rearing damages.
Intended Beneficiaries of Economic Transaction
Transaction for 3rd party benefit, D owes duty of care IF D could foresee harm if negligent.
The General Duty of Care
To act as an ordinary, prudent, reasonable person, to protect people in plaintiff’s position from unreasonable risk.
This is an OBJECTIVE standard.
Physical Characteristics – same as D (but must know handicaps)
Average Mental Ability: Individual mental handicaps are not considered. If crazy or stupid still must act like average mental ability.
Same Knowledge as Average Member of Community. If Δ has superior knowledge then he is required to use it
Professional Standard of Care
req. to possess & exercise the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Ohio “good practice”.
Specialist has superior knowledge, med. Spec. at national standard of care
a) Duty to Disclose Risks of Treatment: Must give enough info. For INFORMED consent. Info serious enough that a reasonable person in patient’s position would have withheld consent to the treatment.
Standard of Care for Children
Maj: child has standard of care of child of like age, education, intelligence, and experience. (a subjective test)
Min. Age for Capacity: most no arbitrary age, it is by individual child. BUT child before age of four unlikely.
Ohio no liability under age of Seven
Min. Traditional Rule of Sevens
Under seven: no liability
7-13 rebuttable presumption of incapable of negligence
14 older presumed to be capable of neg. unless otherwise shown.
Children doing adult activities
Held to same standard as adult IF normally only done by adults. Driving car, airplane, motor boat.
Basically if there is a motor involved.
Standard of Care for Common Carriers
Higher standard: liable for slight negligence
Automobile Driver to Guest
ordinary care: BUT some States GUEST STATUTES: nonpaying refrain from gross or wanton and willful misconduct.
Bailment standard of care
Duties Owed by Bailor (guy giving the thing)
• Gratuitous: sole benefit of bailee; bailor only need to inform of KNOWN dangerous defects.
• Bailments for Hire: duty to inform bailee of defects KNOWN to him OR ones he would have known by exercise of reasonable diligence
Duties Owed by Bailee
• Sole Benefit of Bailor Bailment: (Bailee doesn’t get paid), only slight diligence is required GROSS NEG.
• Sole Benefit of Bailee Bailment: (Bailor gratuitously loans property to bailee) GREAT DILIGENCE is required.
• Mutual Benefit: ordinary due care req.
Modern Trend: move away from all these classifications and new standard is ordinary care UNDER the circumstances.
Standard of Care in Emergency Situations
Δ must act as a reasonable person in the same emergency would have BUT if emergency was of Δ’s own making this doesn’t apply.
Standard of Care Owed by Owner/Occupiers of Land
Person:Activity:Condition
Undiscovered Trespasser:No Duty:No Duty
Discovered Trespasser:Reasonable Care:Known man made death trap
Licensee (social guest):Reasonable Care:Known concealed condition
Invitee:Reasonable Care:Same as above OR could have been known by reasonable inspection
Ohio duty to licensees and social guests
ordinary licensees treated same as trespassers: No duty except to refrain from willful, wanton, or reckless conduct likely to injure the person.
Social guests are owed a higher duty: deemed to be on premises for owners benefit.
Duty to use ordinary care as to activities AND to warn of any known condition that host should reasonable consider dangerous.
Firefighter’s Rule
Landowner liable to police officer or firefighter who enters premises in official duties IF
• injury caused by owners willful or wanton misconduct or affirmative negligence
• injury was result of hidden trap
• injury caused by owner’s violation of a duty imposed by statute or ordinance enacted for benefit of police or firefighters; AND
• owner was aware of Π presence and failed to warn of known, hidden danger.
Ohio’s Good Samaritan Statute
No person shall be liable for administering emergency care at scene of emergency UNLESS acts were willful and wanton misconduct.
does NOT apply where treatment is rendered for remuneration or expectation of remuneration.
Duty of Possessor to Those Off the Premises
• Natural conditions: NO DUTY, except decaying trees in urban areas
• Artificial Conditions: NO DUTY, BUT exceptions
o Unreasonably Dangerous Conditions
o Duty to Protect Passersby: take due precautions to protect passersby from dangerous conditions
• Conduct of Persons on Property: reasonable care to his activities and others on his property to avoid unreasonable risk to those outside.
“Attractive Nuisance” Doctrine
Ordinary Care
• Dangerous condition owner is aware or should be
• Young persons frequent area near the condition
• Condition likely to cause injury (dangerous, likely to cause harm, due to child inability to appreciate the risk, usually artificial. Abandoned cars, NOT WATER normally unless element of unusual danger to children; AND
• The expense of remedying the situation is slight compared with the magnitude of the risk
Foreseeability of Harm is True Basis of Liability: traditional was must show it attracted the child.
Ohio reaches adult rescuers of the child.
Duty of Easement and License Holders to Trespassers
reasonable care to protect trespassers
Duty Owed to a Licensee
• Licensee: enters land, w/ permission, for OWN purpose or business, rather than landowner’s benefit
• Duty to warn of dangerous conditions KNOWN, that makes unreasonable risk of harm that licensee unlikely to discover
• No Duty to Inspect, NOR repair known defects
• Duty to exercise reasonable care in ‘active operations’
Social Guests are licensees
Duty Owed to an Invitee
• Invitee: enters onto premises in response to express or implied invitation of landowner.
• Two classes
o Enter as members of public for purpose the land held open to the public
o Enter for purpose connected with the business of the landowner
• Characterization of Privileged Entrants
o Serving some purpose of the possessor: treated as invitee (mail)
o Under normal circumstances during working hours, as invitee
o Firefighter’s rule, police officer treated like licensees.
• Scope of invitation: if exceeds invitation, down to licensee or tresp
• Duty Owed: duties owed to licensees PLUS a duty to make reasonable inspections to discover dangerous conditions and thereafter fix
o Warning May Suffice.
o Obviousness of Danger, determined by circumstances
Users of Recreational Land
If not charging fees, liable only if willfully maliciously.
OHIO: NOT the above standard but immunity for wanton misconduct.
Modern Trend in land possessor liability
Rejection of Rules Base on Entrant’s Legal Status: apply reasonable person standard to dangerous conditions (no licensee or invitee), some have gotten rid of trespassers too.
Duties of a Lessor of Realty
General Duty: tort liability incident of occupation and control. If owner portions, owners still has duties to common areas
Exceptions:
• Lessor must give warning of existing defects, lessee is not likely to discover on reasonable inspection
• Lessor covenant to repair, is subject to liability for unreasonable dangerous conditions
• If lessor made voluntary Repairs negligently then he is liable
• Lessor subject to liability for unreasonably dangerous conditions at time of transfers, where nature of defect, length and nature of lease makes it unlikely that tenant will not repair.
Tenant Remains Liable to Invitees and Licensses
Duties of Vendor of Realty
duty to disclose concealed unreasonably dangerous conditions which vendor knows or should know AND that he knows the vendee is ignorant and unlikely to discover on reasonable inspection
Statutory Standards of Care: Negligence Per Se
Statutory applicable when statute provides a criminal penalty BUT Π needs
• Π w/in class intended to be protected by statute
• The harm is the particular harm intended to be avoided
• Standards are clear
Excuses for Negligence per se
- When compliance would cause more danger than violation
* Compliance would be beyond defendant’s control.
Effect of Establishing Violation of statute
Creates a conclusive presumption of duty and breach, sig min: hold it creates a rebuttable presumption as to duty and breach or statutory violation only prima facie evidence of neg.
Compliance w/ statute does not necessarily establish due care
Violation of a Civil Remedy Statute, sue under that statute NOT tort
Negligent Infliction of Emotional distress
o Plaintiff must be w/I the Zone of Danger:
o Bystander: if (i) P and person injured closely related (ii) the plaintiff was present AND (iii) plaintiff personally observed or perceived the event.
• Plaintiff Must suffer Physical Symptoms from the Distress: OHIO no physical injury as long as emotional injuries are severe and debilitating.
Special situations: when creates a greater likelihood of severe emotional distress: like erroneous report of relative’s death or mishandling of relative’s corpse.
Parasitic Element of Damages of other Tort
Affirmative Duties to Act
• General Rule NO duty to act
• Assumption of duty to Act by Acting
o Good Samaritan statutes: exemption licensed dr. etc. who voluntarily give emergency treatment from liability of ordinary negligence (gross neg avail)
• Peril Due to D’s conduct
• Special Relationship Between parties
o Duty of common Carriers: duty of reasonable care to aid or assist passenger
o Duty of Places of Public Accommodation: invitee/invitor
o Close family relationship
• Contracts
o Nonfeasance: No Duty
o Misfeasance: Due Care Required
• IF D had actual ability and authority to control third person’s action. D needs to know or should know that third person is likely to committee such acts.
Breach of Duty
Prove that First breach in fact happened, Second that D acted unreasonably. Must point to specific conduct.
- Custom or Usage, to show standard (but not conclusive)
- Violation of statute
- Res Ipsa Loquitur
Res Ipsa Loquitur
• Accident type normally not occur UNLESS someone was negligent
• Negligence Attributable to Defendant: instrumentality in exclusive control of D.
• Multiple D: when multiple parties in control res ipsa loquitur generally not available BUT min. shift burden so each D. must show their neg. not the cause
• P MUST show injury NOT attributable to him (his own testimony may be enough
Effect of Res Ipsa Loquitur:
• No directed Verdict for D: prima facie case :goes to jury
• IF D shows evidence of due care, same effect as any neg. case.
Actual Cause
But For the D act or omission to act, the P injury would not have happened
Concurrent Causes, multiple acts combine, none of the acts alone could have caused the injury
Joint Causes: Substantial Factor Test: where any one alone could’ve caused injury, it is sufficient IF D’s conduct a “substantial factor” in causing injury
Alternative Causes Approach:
Burden Shifts where two or more had been neg. BUT uncertainty exists about which one caused the injury. P shows that one of them caused by one of them, then D must show he didn’t cause it. IF they can’t then both liable.
Applied in Enterprise Liability. Industry group. Held liable by market share.
Proximate Cause (Legal Causation)
This is a limitation of liability
General Rule: D liable for harmful results in the normal incidents of and within the increased risk caused by his acts. Test based on foreseeability.
Proximate cause in Direct Cause Cases
If result of Δ’s negligent conduct is foreseeable, the Δ will be held liable
err on side of Π in direct cause fact patterns.
Proximate Cause in Indirect Cause cases
Indirect Cause Cases: negligence happens and another force came into being after negligence and combined with neg. to cause injury.
A Foreseeable Result w/Foreseeable Intervening Cause = Π wins.
A Foreseeable Result w/Unforeseeable Intervening Cause = Unsure
An Unforeseeable Results w/Foreseeable Intervening Cause = Unsure
An Unforeseeable Results w/Unforeseeable Intervening Cause = Π loses
Dependent Intervening Forces
Almost ALWAYS foreseeable. Normal responses or reactions to situation created by P neg.
(1) Subsequent Medical Malpractice
(2) Negligence of Rescuers
(3) Efforts to Protect Person or Property
(4) Reaction Forces
(5) Subsequent Disease
(6) Subsequent Accident
Independent Intervening Forces
May be forseeable where D’s neg increased the risk that these forces would case harm to P.
(1) Negligent Acts of Third Persons
(2) Criminal Acts and Intentional Torts of Third Persons
(3) Acts of God
Foreseeable Results Caused by Unforeseeable Intervening Forces
D usually liable. D threatens result by neg. conduct, and the result is produced by an unforeseeable intervening force. BUT crime or intentional tort deemed a superceding force and cuts off liability
Unforeseeable Results Caused by Foreseeable Intervening Forces
D not liable
Unforeseable Results Caused by Unforeseeable Intervening Forces
D not liable:results NOT w/I increased risk created by d neg. Breaks causal connection.
Unforeseeable Extent or Severity of Harm
Defendant Liable: Doesn’t matter.
Contributory Negligence
Standard of Care for Contributory neg
• General rule the same as ordinary neg.
• Rescuers: may not be contributory neg.
• Remaining in dangers: maybe
• Violation of statue may be
• As Defense to Violation of Statute by Defendant: BUT not where statute D violated to protect the particular class of P from own incapacity, then NOT a defense
Effect of Contributory Negligence: completely barred recovery
Last Clear Chance
If D had last clear chance to avoid harm P may still recover despite contributory neg.
1) Helpless v. Inattentive
a) Helpless: P puts self in danger he cannot get out, D is liable if had ACTUAL knowledge or P issue OR D SHOULD have known.
b) Inattentive: P in position he could get out of IF he was attentive. Almost all req. ACTUAL knowledge of P issue on behalf of D
Imputed Contributory Negligence
- General Rule: P may proceed against both neg. parties. NOT barred by imputed contributory neg.
- Imputed ONLY where P and neg person stand in relationship that P could be vicariously liable
Comparative Negligence
Partial Comparative: If P’s neg passes threshold 50 or 49% then complete bar. OHIO if P neg over 50%
Pure Comparative: doesn’t matter P %, he can recover to amount D was neg.
No last clear chance.
Reduce damage amount by percentage Π was negligent
Assumption of Risk
P denied recovery if
• P Knew of the risk
• Voluntarily assumed it
No Defense of Intentional Torts: but is for wanton or reckless conduct
Implied Assumption of the Risk
• Knowledge of the risk: P must know the risk
• Voluntary Assumption: must face risk voluntarily
IF no alternative not voluntary
• Certain Risks May Not Be Assumed
o Common carriers and public utilities (can’t disclaim risk)
o Statute enacted to protect a class, members cannot assume the risk.
o Risks not assumed if fraud, force, or emergency.
Express Assumption of Risk
express agreement, not favored and closely scrutinized but generally enforceable.
BUT not if it violates public policy.
Like patient signing form assuming the risk of negligent medical treatment.
BUT signing form to assume risk of negligently groomed ski slope allowed (recreational)
Liability Without Fault (Strict Liability)
Elements • Existence of ABSOLUTE DUTY on part of D to MAKE SAFE • BREACH of that duty • Causation • Damages
Strict Liability for Animals
Trespassing Animal: Owner is liable for damages caused IF reasonable foreseeable.
Personal injuries
• Wild(dangerous) animals – Strict Liability (if injured did nothing to cause inj.)
• Domestic Animals – Knowledge required, some states have statute that knowledge NOT required
• Persons Protected
o Licensees and Invitee – Landowner strictly liable
Public Duty Exception: Public duty(zookeeper) to keep animals, P must show neg.
o Trespassers MUST Prove Negligence:
Intentional Use of Vicious Watchdogs is different.
Abnormally Dangerous Activities
a question of law
There is substantial risk of serious harm NO MATTER how much care is exercised
• Must create 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
Extent of Liability for Strict Liability
Scope of Duty Owed: an absolute duty to foreseeable P to make safe, and liability imposed for any injuries resulting from “the normally dangerous propensity”
Proximate cause in Strict Liability
same as neg.
Defenses in Strict Liability
Contributory neg. no defense if P did not realize the danger. It IS a defense, if plaintiff knew of the danger and his unreasonable conduct was the very cause for the abnormally dangerous activity miscarrying: KNOWING CONTRIBUTORY NEGLIGENCE
Comparative neg: same as in negligence cases.
Ohio: if against Man. Assumption of risk is complete defense. If supplier or wholesaler, then normal comparative
Product Liability
Look at what theory you are using • intentional • strict liability • negligence • breach of warranty
Product Strict liability
• Δ must be a merchant of the good being sold
OHIO: Only manufacturer liable for injuries
• Goods are defective
o man. defect: was different than the others and the difference made it dangerous
o design defect: problem common to all others AND man. could have eliminated danger through a reasonable alternative design
• Defect existed when left sellers hands
presumption it did if moved through ordinary channels of distribution
• plaintiff made a foreseeable use of the product
Ohio when Supplier is treated as Manufacturer
Supplier treated as Man. if
o man. is insolvent, or not subject to process
o supplier is owns or is owned by man.
o supplier furnished the specifications for product or marketed under their name
o supplier altered or failed to maintain
o supplier failed to timely disclose Man. name
Tips for Products liability
• When theory is negligence let wholesalers and retailers off the hook
• adequate warning usually insulates a defendant from strict liability
• If “feasible alternative” for making safer, Δ should be liable without regard to warning
• foreseeable use is not the same as intended use
EVEN if negligent for party: like driving car 75 mph
• If product incidental to performance of service strict liability not available.
Private Nuisance
Conduct that causes a substantial and unreasonable interference with the use and enjoyment of land.
substantial: Offensive, inconvenient, or annoying to an average person in the community.
unreasonable: injury must outweigh the equity
ct weighs the equities in deciding whether to enjoin Δ activity.
Public Nuisance
An act that unreasonable interferes with the health, safety, or property rights of the community.
Recovery available ONLY if a private party has suffered some unique damage not suffered by the public at large
Defenses to Nuisance
- legislative authority: conduct consistent with zoning laws is relevant but not conclusive evidence use is not a nuisance
- No one actor is liable for all the damages caused by the concurrence of his acts and others
- Contributory negligence normally not allowed BUT when based on negligence Π must be free from contributory negligence
- “coming to the nuisance”: Π assumed risk by purchasing land and moving in next door to a nuisance that existed at the time.
Damages
Damages Recoverable in the Action
a. Personal injury
Can be compensated for all damages (past, present, and prospective), special and general: medical expenses, loss income, pain and suffering.
1) Foreseeability Irrelevant: doesn’t matter if extent of harm was unforeseeable.
Property Damage
Damages for cost of repair, or if property almost or completely destroyed FMV.
Punitive Damages
If D’s conduct wanton and willful, reckless or malicious
Nonrecoverable Items
Interest from date of damage in personal injury action; and
Attorney’s fees.
Duty to Mitigate Damages
P must take steps to mitigate the damages, otherwise it precludes recovery from additional damages caused by the aggravation of the injury.
Collateral Source Rule
The fact that P got benefits from other sources, insurance, sick pay, is irrelevant.
A recent trend allowed in medical malpractice or specific types of action.
Vicarious Liability
One person held liable for the tort of another.
• Respondeat Superior
• Independent Contractor Situations
• Partners and Joint venturers
• Automobile Owners: maybe
• Parent child: generally not but some statutory situations
• Tavernkeepers: dram shop laws
Respondeat Superior
a master/employer vicariously liable for torts committed by employee or servant within the scope of employment.
Frolic and Detour: If detour is minor (no much time, not much geographical distance) then employee still in scope of employment.
Intentional Torts: Normally not within scope of employment BUT could be when:
• Force is authorized in the employment (bouncer)
• Friction is generated by the employment (bill collector)
Employee is furthering the business of the employer (tossing rowdy customer)
NOTE: employers may still be liable for own negligence (neg. supervision retention etc these NOT vicarious liability)
Independent Contractor Situations
Principal generally NOT Vic. Liable. BUT
If independent contractor engaged in inherently dangerous activities (blasting)
Public policy considerations, is simply nondelegable
Liability for Own Negligence
Partners and Joint Venturers
each Vic. Liable for others actions.
Joint Venture IF
• Common purpose: business purpose normally Sharing expenses
• Mutual right of control: parties are on equal footing
Automobile Owner for Driver
NOT vicariously liable
BUT some states have “family car” doctrine: owner liable for conduct of immediate family or household member.
“permissive use” statutes imposing liability caused by anyone driving w/ consent
Owner liable for own neg.
OHIO doesn’t have either
Bailor for Bailee
Bailor NOT Vic liable
Parent’s liability for acts of Child
Not Vic. Liable:
Most states statute, make parent liable for willful and intentional torts of minor children up to a certain dollar amount ($5,000) (OHIO willful or malicious assaults or theft up to $10,000. if vandalism, desecration, or ethnic intimidation, $15,000)
BUT
Child acting as Agent for Parents: taking sister to soccer game etc. Parents are vicariously liable
Parent liable for own neg.
Tavernkeepers liability
common law no vic. Liability. proximate cause issue.
Many states, “dramshop acts” create cause of action in favor of third person injured by intoxicated vendee. NOT VIC Liability
Ohio Dramshop
liable is on store premises or parking lot and was proximately caused by negligence.
Away from premises, vendor knowingly sold alcohol to a noticeably intoxicated or under age person. AND person’s negligent conduct arose from the intoxication
Joint and Several Liability
When two or more tortuous acts combine to cause INDIVISIBLE injury to P, each D is jointly and severally liable.
• Torfeasors Acting in Concert:jointly even if injuries are divisible
Statutory Limitations to joint and several liability
the most common (i) no joint liability if tortfeasor judge to be less at fault than the plaintiff or (ii) no joint for torfeasor w/ regard to noneconomic damages(pain and suffering) liability proportional to his fault.
Ohio
• If 2 or more cause injury to Π, and one Δ is more than 50% responsible then that Δ is jointly and severally liable for all compensatory damages from economic loss
• If 2 or more cause injury to Π and one of Δ is 50% or less liable BUT committed an intentional tort then Δ is jointly and severally liable for compensatory damages from economic loss.
Satisfaction and Release
Satisfaction: Until P gets full payment from one tortfeasor she can go after all the others. If she does (satisfaction) she cant’go after the others
Release: P can release D from cause of action.
common law, release of one tortfeasor is release of all
Maj: release of one doesn’t discharge other BUT the claim is reduced.
Contribution
Contribution: when jointly liable, one pays more than his part he can go after the other tortfeasors for the balance
Comparative contribution: proportionate to relative fault of tortfeasors
Equal shares: a min. req. all tort to pay equal shares.
Contribution Tortfeasor must have liability
Not applicable to intentional torts
Indemnity
shifting the entire loss
• Right to indemnity by contract:
• Vicarious Liability
• Indemnity under Strict Products Liability: supplier liable if product was defective when it left his hands.
• Identifiable difference in degree of fault: in SOME juris. Apply indemnity to joint tortfeasor, one least at fault may recover indemnification from MORE WRONG tortfeasor.
Comparative juris. drops this.
Survival and Wrongful Death
Victim that dies, his cause of action survives (by statute). Both to torts of property and personal injury
EXCEPTIONS: torts on intangible personal interest (defamation, malicious prosecution,)
Wrongful Death
all states have a wrongful death statute
Some: the person representative is proper party OHIO
Others surviving spouse or next of kin
Measure of Recovery: For pecuniary injury resulting to spouse and next of kin. NOT pain and suffering of decedent
• Rights of Creditors: creditors have no claim against the amount awarded.
Defenses against Deceased: Recovery allowed only to the extent that the deceased could have recovered in the action.
Defenses Against Beneficiary: doesn’t bar action.
