Torts (Main Deck)* Flashcards
WHAT IS THE GENERAL APPROACH TO ANALYZING A TORTS QUESTION?
STEP 1: For each individual tort:
1A: PRIMA FACIE CASE: Determine if the Plaintiff can establish a prima facie case against the Defendant.
1B: DEFENSES: Determine what defenses are available to the Defendant.
STEP 2: 3RD-PARTY LIABILITY: Consider issues of third-party or multiple Defendant liability.
STEP 3: REMEDIES: Determine what remedies may be available to the Plaintiff.
PRELIMINARY ISSUE:
BY WHAT STANDARD MUST THE ELEMENTS OF A TORT ACTION BE PROVEN & WHO CARRIES THE BURDEN?
Tort actions and defenses generally must be proven by a preponderance of the evidence. In rare cases, an element or defense must be established with clear and convincing evidence (e.g., actual malice in a defamation action brought by a public official).
Note: A preponderance of the evidence means that it is more likely than not (i.e., more than 50 percent likely) that the facts are as the offering party purports them to be.
PRELIMINARY ISSUE:
WHAT IS EACH PARTY’S BURDEN OF PROOF IN A TORT ACTION?
Plaintiff: To establish a prima facie case against a Defendant, the Plaintiff carries the burden to prove each element by a preponderance of the evidence.
Defendant: Once the prima facie case has been established, the Defendant may raise applicable defenses, which also must be proven by a preponderance of the evidence.
PRELIMINARY ISSUE:
WHEN WILL A PLAINTIFF BE BARRED FROM BRINGING SUIT IN TORT, REGARDLESS OF THE ACCUSATION?
Rule: A Plaintiff will be barred from bringing suit if the Defendant can claim an absolute immunity.
Common Law: At common law, the following enjoy complete immunity from tort liability:
1) Charities,
2) Spouses (from suing each other),
3) Parents and underage children, AND
4) Government agencies.
Modern Approach:
1) Most jurisdictions have removed the charity and spousal immunity.
2) Tort actions are allowed between underage children and parents for intentional torts.
3) The Federal Tort Claims Act provides a limited waiver of immunity for acts carried out in the course of executing or implementing government policy.
STEP 1 -
PRIMA FACIE CASE & DEFENSES:
LIST THE 9 CATEGORIES INTO WHICH A TORT MAY FALL
1) Intentional Torts
2) Negligence Torts
3) Strict Liability Torts
4) Products Liability Torts
5) Nuisance Actions
6) First-Amendment Related Torts (Defamation & Invasion of Privacy)
7) Misrepresentation Torts
8) Interference with Business Relations Torts
9) Wrongful Institution of Legal Proceedings Torts
INTENTIONAL TORTS:
WHAT ELEMENTS MUST THE PLAINTIFF GENERALLY ESTABLISH TO PROVE A DEFENDANT’S LIABILITY FOR AN INTENTIONAL TORT?
Rule: To establish a Defendant’s liability for an intentional tort, the Plaintiff generally must prove:
1) The Defendant acted voluntarily,
2) The Defendant acted with the requisite intent, AND
3) The Defendant’s action was the cause of the tortious result.
Note: Most intentional torts do not require that actual damages be proven to establish a prima facie case (i.e., the Plaintiff can sue for nominal damages).
INTENTIONAL TORTS:
WHAT TYPE OF INTENT MUST THE DEFENDANT HAVE TO BE HELD LIABLE FOR AN INTENTIONAL TORT?
Rule: To establish the Defendant acted with intent sufficient to be held liable for an intentional tort, the Plaintiff must prove the Defendant:
1) Actually desired to bring about the consequences of his act, OR
2) Knew or believed such consequences were substantially certain to result from his act.
Note:
1) The Plaintiff need only prove that the Defendant intended to commit the act which amounts to a tort. Thus, the Defendant’s knowledge that the act amounts to a tort and/or mistaken belief regarding the circumstances surrounding his activities are irrelevant to proving intent.
2) The requirement of substantial certainty is met if the Defendant knew or believed there was a high probability that the result would occur.
3) Everyone has the capacity to form the intent to commit an intentional tort. Thus, neither infancy nor insanity is a defense to intentional torts.
INTENTIONAL TORTS:
DOCTRINE OF TRANSFERRED INTENT
(Define & State the Rule)
Definition: Under the Doctrine of Transferred Intent, a Defendant’s intent can be transferred from one tort to the tort actually committed and/or from one person to the person actually harmed.
Rule: The Doctrine of Transferred Intent applies to five torts:
1) Assault
2) Battery
3) False Imprisonment
4) Trespass to Land
5) Trespass to Chattel
Note: Assault, battery, and false imprisonment are intentional torts to the person. Trespass to land and trespass to chattel are intentional torts to property.
INTENTIONAL TORTS:
LIST 4 INTENTIONAL TORTS TO THE PERSON
1) Assault
2) Battery
3) False Imprisonment
4) Intentional Infliction of Emotional Distress
INTENTIONAL TORTS:
ASSAULT
(Define & State the Rule)
Definition: Assault occurs when a person intentionally places another in apprehension of immediate harmful or offensive physical contact.
Rule: To establish a Defendant’s liability for assault, the Plaintiff must prove:
1) The Defendant acted voluntarily,
2) The Defendant intended to place the victim in fear or apprehension of an imminent harmful or offensive physical contact, AND
3) The Defendant’s act caused the Plaintiff to feel reasonable apprehension.
Note:
1) Harsh or threatening words generally are not sufficient to establish a prima facie case of assault, unless they are accompanied by an act of the Defendant.
2) The threat must be of an immediate harm to the Plaintiff.
3) The Plaintiff’s apprehension is judged by a reasonable person standard.
4) Apprehension will be established if the Plaintiff expected or anticipated imminent harmful or offensive contact.
INTENTIONAL TORTS:
BATTERY
(Define & State the Rule)
Define: Battery occurs when a person intentionally causes a harmful or offensive contact with the person of another.
Rule: To establish a Defendant’s liability for battery, the Plaintiff must prove:
1) The Defendant acted voluntarily,
2) The Defendant intended to make contact with the victim’s person, AND
3) The Defendant’s act caused a harmful or offensive contact with the Plaintiffs person to occur.
Note:
1) The Plaintiff does not have to prove that the Defendant intended to harm or offend her, only that he intended to make the contact.
2) Whether an act is harmful or offensive is judged by a reasonable, non-hypersensitive person standard.
3) The contact may be direct or indirect, and may be with the person of the plaintiff or anything connected to the plaintiff.
4) The plaintiff does not have to be aware of the battery at the time it occurred.
INTENTIONAL TORTS:
FALSE IMPRISONMENT
(Define & State the Rule)
Definition: False imprisonment is the intentional confining of another.
Rule: To establish a Defendant’s liability for false imprisonment, the Plaintiff must prove:
1) The Defendant acted voluntarily,
2) The Defendant intended to confine the Plaintiff to a bounded area, AND
3) The Plaintiff was actually confined with no known reasonable means of escape.
Note:
1) A split of authority exists over whether the plaintiff must be aware of the confinement:
a) Common Law: The Plaintiff must be conscious of being confined.
b) Modern Trend: The Plaintiff must be conscious of being confined or harmed by the confinement.
2) Known reasonable means of escape are those that would not be physically or mentally harmful to the Plaintiff or his property or threaten the safety of another.
3) The Defendant may restrain the Plaintiff by a physical act, or by threats of harm to the Plaintiff, the Plaintiffs property, or third parties.
INTENTIONAL TORTS:
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
(Define & State the Rule)
Definition: Intentionally or recklessly causing another to feel extreme mental or emotional distress, torment, or discomfort.
Rule: To establish a Defendant’s liability for MED. the Plaintiff must prove:
1) The Defendant intentionally or recklessly engaged in extreme or outrageous conduct,
2) The Defendant’s conduct would cause a reasonable person extreme emotional or mental distress, AND
3) The Plaintiff actually suffered extreme mental or emotional distress (i.e., damages).
Note:
1) Extreme and outrageous conduct is conduct that goes beyond the bounds of decency and would not be tolerated in a civilized society.
2) Insulting words generally are not sufficient to establish IIED.
3) In the case of a hypersensitive Plaintiff, it is sufficient that the Defendant’s conduct would cause a hypersensitive person extreme emotional or mental distress if the Defendant was or should have been aware ofthe hypersensitivity.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
COMMON CARRIERS AND INNKEEPERS
(State the Rule)
Rule: Common carriers or innkeepers are held to a higher standard than the average person and will be held liable for intentionally directing insults toward patrons or customers if the language used causes the patron or customer emotional distress.
**Note: **
1) The Plaintiff must be a patron or customer ofthe common carrier or innkeeper.
2) The Plaintiff does not have to show extreme emotional distress to recover. Slight emotional distress will suffice.
3) The common carrier or innkeeper will be held liable for an employee’s insulting activity.
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS:
DEFENDANT’S LIABILITY TO THIRD PARTIES
(State the Rule)
Rule: To establish a Defendant’s liability for MED. a third-party Plaintiff must prove:
1) The Defendant intentionally or recklessly engaged in extreme or outrageous conduct toward a third party in the Plaintiffs presence,
2) The third party is a close relative of the Plaintiff,
3) The Defendant knew ofthe Plaintiffs presence and the Plaintiffs relationship to the third party,
4) The Defendant’s conduct would cause a reasonable person in the Plaintiffs position extreme emotional or mental distress, AND
5) The Plaintiff actually suffered extreme mental or emotional distress.
INTENTIONAL TORTS:
LIST 3 INTENTIONAL TORTS TO PROPERTY
1) Trespass to Land
2) Trespass to Chattel
3) Conversion
Note: Trespass to land applies to real property. Trespass to chattel and conversion apply to personal property.
TRESPASS TO LAND
(Define & State the Rule)
Definition: Trespass to land is an intentional physical invasion on the property of another without permission or the right to enter.
Rule: To establish a Defendant’s liability for trespass to land, the Plaintiff must prove that the Defendant, without permission or right:
1) Intentionally entered or remained on the land of another, OR
2) Intentionally caused an object or person to enter or remain on the land of another.
Note:
1) The Plaintiff need only establish that the Defendant intended to enter, or cause another person or thing to enter, the Plaintiffs property.
2) Owners and possessors of land have standing to raise a trespass claim.
3) A trespass may occur above or below land.
4) At common law, only intrusion of tangible items or persons are recognized as actionable. Modernly, most jurisdictions recognize actions in trespass for intrusion of particles or gasses.
TRESPASS TO CHATTEL
(Define & State the Rule)
Definition: Trespass to chattel occurs when a person intentionally interferes with another’s right of use or possession of personal property.
Rule: To establish a Defendant’s liability for trespass to chattel, the Plaintiff must prove:
1) The Defendant acted intentionally to damage ortake possession of the chattel. AND
2) The Plaintiffs right of use or possession was actually interfered with (i.e., damages).
Note:
1) The Plaintiff need not demonstrate that the Defendant intended to interfere with the Plaintiff’s right of use or possession. Only the Defendant’s intent to commit the act (damaging or possessing the chattel) is required.
2) The length of time that the Plaintiff’s right of use or possession was interrupted is not relevant to establishing the Defendant’s liability (i.e., the Defendant’s possession of the Plaintiff’s chattel for a brief period will suffice), though the amount of time the Defendant interfered with the Plaintiff’s right is relevant to determining the amount of damages the Defendant will owe for the trespass.
CONVERSION
(Define & State the Rule)
Definition: Conversion occurs when a person intentionally and substantially interferes with another’s right of use or possession of personal property.
Rule: To establish a Defendant’s liability for conversion, the Plaintiff must prove:
1) The Defendant intentionally acted to substantially damage, alter, transfer, or withhold (for a substantial period of time) the Plaintiff’s chattel, AND
2) The Plaintiffs right of use or possession was actually and substantially interfered with (i.e., damages).
Note:
1) If found liable, the Defendant will be liable for the full value of the chattel, measured at the time of conversion.
2) The Defendant’s mistake as to who rightfully owns or possesses the chattel is not a defense.
LIST 7 DEFENSES AVAILABLE TO A DEFENDANT ACCUSED OF AN INTENTIONAL TORT
1) Arrest Privilege
2) Consent
3) Defense of Self (Self-Defense)
4) Defense of Others
5) Defense or Recapture of Chattel
6) Necessity
7) Shopkeeper’s Privilege
INTENTIONAL TORT DEFENSES:
ARREST PRIVILEGE
(State the Rule)
Rule: Depending upon the status of the person and the circumstances, an individual may be privileged to use a reasonable amount of force to carry out a warrantless arrest. Whether the privilege is available depends on:
1) Whether the individual carrying out the arrest is a police officer or private citizen,
2) Whether the suspected crime is a felony or a misdemeanor, AND
3) Whether the crime is in progress or has already been committed.
ARREST PRIVILEGE:
FELONY ARREST
(State the Rule)
Rule 1: Police officers and private citizens are privileged to carry out an arrest without a warrant for a felony if:
1) The arrestor reasonably believed the arrestee was committing or was about to commit a felony, AND
2) The felony is or is about to be committed in the arrestor’s presence.
Rule 2: Police officers, but not private citizens, are privileged to carry out a warrantless arrest for a felony that has been completed if the officer reasonably believes that:
1) A crime has been committed, AND
2) The arrestee committed the crime.
Note: The privilege applies even if the officer is mistaken in his belief that a crime has been committed or that he has the right person, so long as the belief is reasonable.
Rule 3: A private citizen is privileged to make an arrest for a felony that has already been completed only if:
1) The citizen reasonably believes that a crime has been committed, AND
2) A felony has actually been committed.
Note: The privilege applies if a citizen is mistaken in his belief that he has the correct person, but does not apply if he is mistaken in his belief that a crime was committed.
ARREST PRIVILEGE:
MISDEMEANOR ARREST
(State the Rule)
Rule: Police officers and private citizens are privileged to carry out a warrantless arrest for a misdemeanor if the misdemeanor is a breach of the peace and:
1) The crime occurred or is occurring in the arrestor’s presence. OR
2) If the crime was completed, the arrestor carried out the arrest in the immediate aftermath ofthe crime.
ARREST PRIVILEGE:
WHAT LEVEL OF FORCE MAY BE USED TO CARRY OUT AN ARREST?
Misdemeanor Arrest: A police officer or private citizen is privileged to use reasonable non-deadly force to carry out a misdemeanor arrest. Deadly force is not allowed.
Felony Arrest:
1) If the arrest is carried out to prevent or interrupt a dangerous or violent felony, deadly force may be used if no other option is available to the arrestee.
2) If the arrest is carried out after a felony has been committed:
a) Deadly force may be used by an officer if:
i) The arrestee poses a significant threat of death or serious bodily harm to the officer or others, AND
ii) The use of deadly force is reasonably necessary to prevent the arrestee from fleeing or harming others.
b) Deadly force may be used by a private citizen only if:
i) The person upon whom deadly force was used actually committed a violent or dangerous felony, AND
ii) Deadly force was reasonably necessary to prevent the arrestee from fleeing or harming others.
INTENTIONAL TORT DEFENSES:
CONSENT
(State the Rule)
Rule: If the Plaintiff consented to the Defendant’s conduct, an action that would otherwise constitute an intentional tort will be privileged. Consent may be either express or implied.
Express Consent: A person manifests express consent through verbal or physical communications that convey explicit consent to the challenged conduct.
Note: Courts apply an objective standard to determine whether consent was expressly manifested.
Implied Consent: Implied consent can be found in two ways:
1) Consent may be implied from the Plaintiffs conduct in the context of the surrounding circumstances (e.g., boxer entering the boxing ring), OR
2) Consent may be implied by law (e.g., mouth-to-mouth resuscitation of an unconscious person).
CONSENT:
LIST 5 METHODS BY WHICH CONSENT MAY BE INVALIDATED
1) Duress
2) Fraud or Mistake
3) Illegality
4) Incapacity
5) Going Beyond the Scope
INVALIDATING CONSENT:
DURESS
(State the Rule)
Rule: Consent is not a defense if it was obtained by threat of imminent use of physical force.
Note: Threats of economic harm generally do not constitute duress and will not negate the Plaintiff’s consent.
INVALIDATING CONSENT:
FRAUD OR MISTAKE
(State the Rule)
Rule: Consent will be invalid if:
1) The Plaintiffs consent was obtained through the Defendant’s fraudulent misrepresentation of a matter central to the interaction between the Plaintiff and Defendant, OR
2) The Defendant knew that the Plaintiffs consent was based on a mistaken belief as to a central matter and did not correct that belief.
a) Note: Consent will be invalidated only if the Defendant actually knew of the Plaintiffs mistaken belief. Whether the Defendant should have known of the mistake is irrelevant.
INVALIDATING CONSENT:
ILLEGALITY
(State the Rule)
Majority Rule: Consent by the Plaintiff to an intentional tort that amounts to a criminal act is not valid and will not relieve the Defendant of civil liability.
Minority Rule: Consent by the victim to a criminal act that also constitutes an intentional tort is valid for purposes of relieving the Defendant of civil liability unless the Plaintiff is a member of a class the criminal statute was intended to protect.
INVALIDATING CONSENT:
INCAPACITY
(State the Rule)
Rule: Consent is not valid if the Plaintiff lacks the capacity to consent. A Plaintiff is held to lack the capacity to consent if the Plaintiff is:
1) A child,
a) Note: The age of capacity for consent purposes depends upon the circumstances. A good rule of thumb is the more serious the harm, the older the child must be to give valid consent.
2) Mentally deficient or insane,
3) Intoxicated, OR
4) Unconscious.
a) Note: An exception to this rule exists for unconscious victims in an emergency situation where immediate action is necessary to save an individual’s life.
INVALIDATING CONSENT:
OVERSTEPPING THE BOUNDS OF CONSENT
(State the Rule)
Rule: Consent will be invalid if the Defendant’s act exceeds the bounds of consent granted by the Plaintiff.
INTENTIONAL TORT DEFENSES:
SELF-DEFENSE
(State the Rule)
Rule: A Defendant may justifiably commit what would otherwise be an intentional tort if:
1) The Defendant reasonably believed force was necessary to protect himself from immediate harm, AND
2) The force used to protect himself was reasonable.
Note:
1) Self-defense is available only if the Defendant believes he is threatened with immediate harm.
2) The Defendant may rely on the defense even if he was mistaken in his belief that he was in immediate danger, so long as his beliefwas reasonable.
3) Use of deadly force is reasonable only if the Defendant reasonably believed such force was necessary to avoid death or serious bodily harm.
SELF-DEFENSE:
DUTY TO RETREAT
(State the Rule)
Majority Rule: There is no duty to retreat before using reasonable non-deadly or deadly force in one’s own
self-defense.
Minority Rule: There is a duty to retreat before using deadly force if:
1) The self-defender is not in his own home. AND
2) Retreat may be carried out safely.
INTENTIONAL TORT DEFENSES:
DEFENSE OF OTHERS
(State the Rule)
Rule: A Defendant is justified in using reasonable force to protect a third party from immediate harm if the Defendant reasonably believed that the third party would be justified in using reasonable force in her own defense. A split of authority exists as to the effect of a Defendant’s mistake:
1) Common Law: If the third party did not have a right to use force in her own defense, then defense-of-others will not protect the Defendant from civil liability, regardless ofthe reasonableness of the Defendant’s belief.
2) Modern Approach: If the third party did not have a right to self-defense, a Defendant is justified in using force to protect the third party if the Defendant’s mistake as to the third party’s right to defend herself was reasonable.
Note: The Defendant may only use the amount of force that the person being aided would be justified in using.
INTENTIONAL TORT DEFENSES:
DEFENSE OF PROPERTY
(State the Rule)
Rule: A Defendant is justified in using reasonable, non-deadly force to protect her property or chattel.
Note:
1) Deadly force can never be used in defense of property.
2) Non-deadly force is unreasonable if a verbal warning or demand would adequately protect the property.
3) Defense-of-property will not protect the Defendant’s actions if the Plaintiff has a privilege to commit the tort against which the Defendant is defending (e.g., Plaintiff entering Defendant’s land to recapture wrongfully taken chattel).
4) The Defendant must be correct in her belief that the Plaintiff is committing or is attempting to commit a tort against the Defendant’s property.
DEFENSE OF PROPERTY:
FORCE IN THE RECOVERY OF CHATTEL
(State the Rule)
Rule: A Defendant is justified in using reasonable, non-deadly force to recover chattel wrongfully taken if:
1) The Defendant is acting in the immediate aftermath of the item having been taken (i.e., hot pursuit), AND
2) The Plaintiff has no right to possess the chattel.
Note: The reasonableness of Defendant’s belief will not protect his acts if he is mistaken in his belief that the Plaintiff has no right to possess the chattel.
DEFENSE OF PROPERTY:
ENTRY ONTO LAND
(State the Rule)
Rule: A Defendant is justified in using reasonable, non-deadly force to enter the land of another to recapture chattel if:
1) The entry is carried out at a reasonable time and in a reasonable manner, AND
2) The Defendant is not to blame for the chattel being on the other’s land.
Note: Whether the Defendant will be liable for damage caused depends upon the status ofthe landowner:
1) If the landowner is a wrongdoer (i.e., responsible for taking the Defendant’s property or permitted wrongfully taken chattel to be kept on her land), the Defendant is not liable for damage caused in entering the land and recapturing the chattel.
2) If the landowner is not a wrongdoer, the Defendant retains the privilege to enter the land, but is responsible for any damage caused in entering the land and recapturing the chattel.
DEFENSE OF PROPERTY:
DEFENSE OF HOME
(State the Rule)
Common Law: A Defendant is justified in using deadly force to prevent another from breaking into the Defendant’s home.
Modern Trend: Deadly force is not justified unless the Defendant reasonably believes the life or physical safety of an occupant is threatened by the intruder.
INTENTIONAL TORT DEFENSES:
NECESSITY PRIVILEGE
(Define)
Definition: A Defendant is privileged to engage in activity
that would otherwise constitute an intentional tort when such actions are reasonably necessary to avoid a greater harm to herself or to society. The privilege may be based on public or private necessity.
NECESSITY:
PUBLIC NECESSITY
(State the Rule)
Rule: A Defendant may commit an act that would otherwise constitute an intentional tort if doing so was necessary to protect the safety or interests of the public or a significant group of people.
Note:
1) Generally, the Defendant must establish that the harm caused by his intentional act was less than the harm which he sought to avoid.
2) Public necessity is a complete defense, and the Defendant will not be liable for damages caused by the activity.
NECESSITY:
PRIVATE NECESSITY
(State the Rule)
Rule: A Defendant may commit an act that would otherwise constitute an intentional tort if:
1) Committing the tort was necessary to protect the Defendant’s own safety or property, AND
2) The interest protected was greater than the injury caused by the Defendant’s act.
Note: Private necessity is an incomplete defense. Though the Defendant’s acts are privileged, he will be liable for any damage caused by his activity.
INTENTIONAL TORT DEFENSES:
SHOPKEEPER’S PRIVILEGE
(State the Rule)
Rule: A Plaintiff will not succeed in an action for false imprisonment against a shopkeeper if:
1) The shopkeeper reasonably believed a theft occurred, AND
2) The Plaintiff was detained in a reasonable manner and for a reasonable time.
Note: A reasonable time and manner is that which is reasonably necessary to investigate whether the Plaintiff committed a theft.
NEGLIGENCE
(Define & State the Rule)
Definition: Negligence occurs when the Defendant acts in a manner that falls below a legally required standard of care and causes injury to another’s person or property.
Rule: To establish a Defendant’s liability for negligence, the Plaintiff must prove:
1) A duty that requires the Defendant to avoid acting in a manner that would create an unreasonable risk of injury to others,
2) The Defendant breached that duty,
3) The Defendant’s breach was the actual and proximate cause of the Plaintiffs injury, AND
4) The Plaintiff suffered actual harm.
Note: Unlike most intentional torts, negligence actions require that the Plaintiff demonstrate actual harm (i.e., nominal damages are not available in negligence).
NEGLIGENCE:
DUTY OF CARE
(Define)
Definition: A duty of care is a legally enforceable obligation that requires an individual to exercise reasonable care in the conduct of his activities so as to avoid creating an unreasonable risk of harm to others.
Rule: A Defendant generally is held to the standard of care of a reasonable person, and is expected to exercise the caution of a prudent person in similar circumstances.
Note: In determining whether the Defendant met the standard of care of a reasonable person in similar
circumstances:
1) The fact-finder cannot consider the Defendant’s mental condition or inexperience, BUT
2) The fact-finder can consider the Defendant’s physical characteristics.
NEGLIGENCE-DUTY:
WHAT IS THE ROLE OF CUSTOM OR USAGE IN DETERMINING THE APPROPRIATE STANDARD OF CARE?
(Define & State the Rule)
Definition: Custom or usage refers to well-established industry practices (custom) and common uses of products (usage).
Rule: Evidence of industry custom or common product usage may be offered to establish the standard of care to which a person will be held.
Note: Though violation of custom or usage can be introduced as evidence ofthe Defendant’s breach of duty, proof that the Defendant followed industry custom is not necessarily determinative.
NEGLIGENCE-DUTY:
TO WHAT STANDARD OF CARE ARE PROFESSIONALS HELD?
Rule: Professionals are expected to adhere to the standard of care of a trained professional in their field.
Note: If accused of professional negligence, proof by the Defendant that she adhered to the industry custom of her profession conclusively establishes that the Defendant acted reasonably and. thus, did not violate her duty of care.
NEGLIGENCE-DUTY:
WHAT DUTIES DO DOCTORS OWE THEIR PATIENTS?
Rule: Doctors have a duty to disclose information about the patient’s treatment and obtain the patient’s informed consent before performing medical procedures on the patient’s body.
Note: A split of authority exists as to how much information the doctor must provide:
1) Physician Rule: In jurisdictions that apply the Physician Rule, a doctor’s duty to disclose is determined by the level of disclosure customarily provided to patients by other doctors in the field. The level of disclosure customarily provided by other doctors in the field is determined through expert testimony.
2) Reasonable Patient Rule: Under the Reasonable Patient Rule, a doctor’s duty to inform is measured by what a reasonable patient would need to know in order to make an informed and intelligent decision about the proposed treatment.
NEGLIGENCE-DUTY:
TO WHAT STANDARD OF CARE ARE CHILDREN HELD?
Rule: Children are held to the standard of care of a reasonably prudent child of the same age, experience and intelligence.
Note:
1) Whether a child has capacity to be negligent depends on the jurisdiction:
a) Traditional View: Children under the age of 7 were irrebuttably presumed incapable of negligence.
b) Modern Approach: Children under the age of four or five, depending on the jurisdiction, are generally presumed incapable of negligence.
2) Children engaged in potentially risky conduct that is considered an adult activity generally are held to the standard of care of a reasonable adult engaged in that activity.
NEGLIGENCE -
DUTY:
TO WHOM DOES A PERSON OWE A DUTY OF DUE CARE?
Rule: A Defendant owes a duty to protect foreseeable victims against foreseeable risks of harm. Whether a victim is foreseeable depends upon the test applied in the jurisdiction:
Majority Rule (Zone of Danger Test): A duty of care is owed only to people who could foreseeably be harmed by the Defendant’s conduct (i.e., people who are within the zone of danger created by Defendant’s conduct).
Minority Rule (Whole World Test): A duty of care is owed to everyone (in the whole world) to avoid engaging in unreasonable conduct. Thus, any person harmed by the conduct is a foreseeable victim.
NEGLIGENCE -
DUTY:
WHAT DUTIES ARE OWED BY AN OWNER OR POSSESSOR OF LAND TO THOSE WHO ARE NOT ON THE LAND?
**Natural Conditions **
Common Law: At common law, land owners/possessors owe no duty to those outside ofthe property to protect against harm caused by natural conditions on the property.
Modern Trend: Landowners/possessors (predominantly in cities and the suburbs) must exercise reasonable care to inspect the property and protect those outside of the property from natural conditions on the property (e.g., falling trees or tree limbs).
Artificial Conditions
Rule: Landowners/possessors have a duty to reasonably protect those outside of the property from harm caused by artificial conditions on the property.
Possessor’s Activities
Rule: Landowners/possessors have a duty to exercise reasonable care when carrying out activities on their property to protect against an unreasonable risk of harm to others outside the property.
NEGLIGENCE-DUTY:
WHAT DUTIES ARE OWED BY AN OWNER OR POSSESSOR OF LAND TO THOSE WHO ARE ON THE LAND?
Rule: At common law, the duty owed by a possessor of land depends upon the status of the person who entered the land. Three categories of entrants are recognized:
1) Trespassers
2) Licensees
3) Invitees
Note: Though both owners and possessors of land may be held liable for injury caused to others on their property, in most cases the possessor of the land will be held primarily responsible, and the owner of the land will be held secondarily responsible.
NEGLIGENCE-DUTY:
TRESPASSERS
(Define & State the Rule)
Definition: A trespasser is a person who enters or remains on the land of another without right or permission.
Rule: The duty owed to a trespasser depends upon whether theowner/possessor knows of the trespasser’s presence:
1) Unknown Trespassers: A landowner/possessor generally owes no duty to unknown trespassers, but must not intentionally create harmful or artificial conditions for the purpose of injuring potential trespassers on the property.
2) Known Trespassers: A landowner/possessor who knows, expects, or should know of a trespasser’s presence has a duty to:
a) Warn the trespasser of any hidden or inconspicuous artificial conditions that could cause death or serious bodily harm to the trespasser, AND
b) Exercise reasonable caution when carrying out activities on the property.
Note: The landowner/possessor does not owe a duty to warn known trespassers of obvious conditions or conditions that the trespasser should reasonably discover.
NEGLIGENCE -
DUTY:
TRESPASSING CHILDREN
(ATTRACTIVE NUISANCE DOCTRINE)
(State the Rule)
Rule: To establish a Defendant’s liability under the Attractive Nuisance Doctrine, the Plaintiff must prove:
1) The hazardous object or artificial condition is located in an area the landowner/possessor knows or should know that children are likely to trespass,
2) The owner/possessor knows or should know that the object or condition presents an unreasonable risk of death or serious bodily harm to trespassing children,
3) The children, due to their youth, will not appreciate the risk presented by the object or condition, AND
4) The risk to the children outweighs the utility to the owner/possessor of maintaining the condition and the burden of removing the danger.
**Note: **
1) In cases where it is not possible to remove the dangerous object or artificial condition, the owner/possessor may erect barriers to prevent children’s access.
2) At common law, the Plaintiff must show that it was the hazardous condition itself that drew the child to the land. Modernly, most courts only require that injury to child trespassers was foreseeable.
NEGLIGENCE-DUTY:
LICENSEES
(Define & State the Rule)
Definition: A licensee is a person who enters or is present on the land of another with the permission ofthe owner or possessor, but for the licensee’s sole benefit, interest, convenience or gratification.
Rule: To licensees, a landowner/possessor owes a duty only to warn of hidden dangers on the property of which the owner/possessor knows or should know.
Note: There is no duty to inspect the land for dangers or to make repairs.
NEGLIGENCE-DUTY:
INVITEES
(Define & State the Rule)
Business Invitees: Business invitees are those who enter land at the express or implied invitation ofthe owner or possessor of the land for the purpose of engaging in a business transaction or otherwise benefiting the owner or possessor.
Public Invitees: Public invitees are those who enter land or property that is held open to the public.
Rule: To invitees, a landowner/possessor owes a duty to:
1) Maintain the property in a safe condition, AND
2) Conduct a reasonable inspection of the property to detect hidden dangers. If a hazardous condition is found, the possessor must:
a) Fix, repair, or remove the hazardous condition, OR
b) Warn the invitee of the condition (if it is impossible to fix, repair, or remove).
Note: Landowners/possessors also owe a duty to rescue invitees who become endangered while on the property as invitees.
NEGLIGENCE-DUTY:
WHAT DUTIES ARE OWED BY A LANDLORD WHO RENTS PROPERTY TO A TENANT?
Common Law: At common law, a landlord is not held liable for failing to inspect for, warn, or repair dangerous conditions on the property that existed before or that arose after the tenant took possession.
Modern Approach: A landlord has a duty to:
1) Use reasonable care to make common areas safe,
2) Repair or warn of known dangers of which the tenant is unaware, AND
3) Exercise reasonable care in making and completing repairs.
Note: Landlords generally do not have a duty to inspect unless the landlord knows or should know the rented property will be held open to the public, in which case the landlord has a duty to inspect for and repair hazardous conditions before the tenant comes into possession of the property.
NEGLIGENCE-DUTY:
AFFIRMATIVE DUTIES TO ACT
(State the Rule)
Rule: Generally, no affirmative duty to assist, rescue, intervene on behalf of, or come to the aid of another exists in tort law.
Exception: An affirmative duty to rescue is recognized where:
1) The Defendant created the situation that imperiled the victim,
2) The Defendant and the victim have a special relationship, and the risk to the victim arises within the scope of that relationship, AND/OR
3) The Defendant has voluntarily assumed the duty by beginning to assist a person in peril,
a) Note: Once the Defendant has begun to assist, she must do so with reasonable care and she must continue to assist if stopping would leave the victim worse off than before the Defendant rendered assistance.
NEGLIGENCE - DUTY:
LIST 6 SPECIAL RELATIONSHIPS THAT GIVE RISE TO AN AFFIRMATIVE DUTY TO RESCUE
1) Common Carrier and Passengers
2) Innkeeper and Guests
3) Landlord and Tenants
4) Employer and Employees
5) Business and Patrons
6) School and Students
NEGLIGENCE - DUTY:
WHEN WILL AN AFFIRMATIVE DUTY TO CONTROL THE ACTIONS OF ANOTHER ARISE?
Rule: An affirmative duty may be imposed on the Defendant to control the actions of a third party if a special relationship exists between the Defendant and the third party justifying imposition of the duty. To establish a Defendant’s duty to control, the Plaintiff must prove:
- The Defendant had the actual ability and authority to control the third party’s actions,
- The Defendant knew or should have known the third party was likely to commit acts that would require exercise of such control, AND
- A relationship exists between the Defendant and the third party that justifies imposing the duty on the Defendant (e.g., parent/child).
Note: In cases where the Defendant was aware of the likelihood that a third party would commit a harmful act, but does not have authority to control the third party, an affirmative duty to warn the intended victim may exist if the relationship justifies the imposition ofthe duty (e.g., psychotherapist/patient).
NEGLIGENCE:
BREACH
(Define & State the Rule)
Definition: Breach occurs when the Defendant fails to meet the required standard of care by acting unreasonably.
Rule: To establish the element of breach, the Plaintiff must show that the Defendant:
1) Failed to use reasonable care under the circumstances,
2) Failed to meet a specific standard of care (custom or special relationship),
3) Violated a statute (negligence per se), OR
4) Was in control of a situation in which the Plaintiff was injured, and no other person could have caused the harm (res ipsa loquitor).
Note: Because breach is determined according to the reasonableness of the Defendant’s actions, it is in most cases a question for the fact-finder to determine.
NEGLIGENCE - BREACH:
HOW DOES THE JURY DETERMINE WHETHER A DEFENDANT’S ACTIONS WERE UNREASONABLE?
Rule: To determine whether a Defendant’s conduct was unreasonable, the burden of avoiding the harm is balanced against the likelihood and magnitude of the harm.
Note: This comes from the Hand Formula, which finds negligence when the Defendant’s burden of taking reasonable measures to avoid causing the harm (B) is less than the probability of the harm occurring (P), multiplied by the magnitude of the loss if the harm occurs (L). If B < P x L, then the Defendant acted unreasonably.
NEGLIGENCE - BREACH:
CUSTOM OR USAGE
(State the Rule)
Rule: The role of custom or usage in establishing breach depends on whether the evidence offered demonstrates that the Defendant’s actions conformed with or deviated from customary practices of an industry:
1) Nonconforming Acts: Proof that the Defendant failed to conform with industry practices is strong (though not conclusive) evidence that the Defendant failed to act with reasonable care and, therefore, breached her duty to the Plaintiff.
2) Conforming Acts: Proof that the Defendant conformed with industry practices can be offered as evidence that the Defendant acted in a reasonable manner and, therefore, did not breach her duty to the Plaintiff. However, if the industry custom itself is determined to be unreasonable, the Defendant’s conformance with the custom will not protect the Defendant from liability.
NEGLIGENCE - BREACH:
NEGLIGENCE PER SE
(Define & State the Rule)
Definition: Negligence per se is the use of the Defendant’s violation of a criminal statute to establish that the Defendant owed a duty to the Plaintiff and that the Defendant breached that duty.
Rule: The Defendant’s violation of a criminal statute may be used to establish the Defendant’s breach of a duty of due care if:
1) The statute clearly defines the conduct that will result in a criminal violation,
2) The harm suffered by the Plaintiff is the type the statute was designed to prevent, AND
3) The Plaintiff is within the class of persons the statute was designed to protect.
Note:
1) While violation of the statute conclusively establishes the Defendant’s duty and the Defendant’s breach of that duty, a Defendant’s proffer of evidence that he complied with a statute is accepted only as relevant evidence of the Defendant’s reasonable behavior.
2) In a jury trial, the judge and jury have complementary roles in determining whether negligence per se will establish the Defendant’s duty and breach:
a) The judge determines, as a matter of law, whether the three elements of negligence per se have been established.
b) The jury determines whether the Defendant violated the criminal statute.
NEGLIGENCE - BREACH:
RES IPSA LOQUITOR
(Define & State the Rule)
Definition: The doctrine of res ipsa loquitor allows the Plaintiff to establish that the Defendant breached a duty of due care in situations where the Plaintiff was injured as the result of an accident that usually would not occur but for someone’s negligence, but no direct evidence of the Defendant’s unreasonable conduct (i.e., breach) is available.
Rule: The Plaintiff can raise an inference of Defendant’s breach of duty of due care through res ipsa loquitor by proving:
1) The harm would not normally occur without someone’s negligence,
2) The instrumentality of the harm was under the exclusive control of the Defendant at the time the harm occurred, AND
3) The Plaintiff did not negligently or voluntarily contribute to the harm.
Note: Res ipsa loquitor gives rise to an inference of breach. Thus, the fact-finder may, but is not required to, find breach occurred if the above elements are met.
NEGLIGENCE:
WHAT MUST THE PLAINTIFF PROVE TO ESTABLISH CAUSATION?
1) Actual Causation (Cause-in-Fact), AND
2) Legal Causation (Proximate Cause).
NEGLIGENCE - CAUSATION:
ACTUAL CAUSATION
(CAUSE-IN-FACT)
(Define & State the Rule)
Definition: Cause-in-fact, or actual causation, simply means that the Defendant’s act was the actual cause of the harm caused to the Plaintiff.
Rule: Actual causation may be established in any of three ways:
1) But For Test: The Plaintiff must prove that but for the Defendant’s conductor activity, the Plaintiff would not have
suffered an injury.
2) Substantial Factor Test: In a situation where the harm was caused by two or more forces, the Plaintiff must establish that the Defendant’s conduct was a substantial factor in causing the harm and, if carried out independently of the other acts, was sufficient to cause the harm.
3) Shifting the Burden Approach: When more than one Defendant breached a duty, but only one caused the harm to the Plaintiff and it is unclear which Defendant’s acts caused the harm, the Plaintiff may offer proof that each Defendant breached a duty of care, which will shift the burden to the Defendants to prove that his/her negligent act was not the cause of the harm.
NEGLIGENCE - CAUSATION:
LEGAL CAUSATION
(PROXIMATE CAUSE)
(Define & State the Rule)
Definition: Proximate cause is the requirement that the causal relationship between the Defendants act and the Plaintiffs injury be strong enough that holding the Defendant responsible for the harm does not violate the principles of fairness.
Rule (Foreseeable Harm Test): To establish proximate cause, the Plaintiff must prove:
1) The harm was a reasonably foreseeable result ofthe Defendant’s activity, AND
2) The Defendant s act was not superseded by an intervening force.
NEGLIGENCE - CAUSATION:
INTERVENING FORCES
(Define & State the Rule)
Definition: An intervening force is an act by a third party or nature that occurs after the Defendant’s act and joins with the Defendant’s negligent act to cause the harm.
Rule: The Defendant will remain liable for all harm that results from his negligent act, despite the occurrence of an intervening force, if:
1) The occurrence of the intervening force was foreseeable, OR
2) The type of harm suffered by the Plaintiff was a foreseeable result of the Defendant’s conduct (even if the intervening force was not foreseeable and/or the harm would not have occurred if not for the combination of the intervening force with the Defendant’s conduct).
Note: In the rare case that neither the intervening force nor the resultant harm was foreseeable, the intervening force will be found to have superseded the Defendant’s acts and the Defendant’s acts will not be the proximate cause of the Plaintiff’s injury.
NEGLIGENCE - HARM:
WHAT TYPE OF HARM MUST THE PLAINTIFF PROVE TO PREVAIL IN A NEGLIGENCE ACTION?
Rule: Generally, the Plaintiff must demonstrate that he suffered actual physical harm as a result of the Defendant s negligence. Mental or emotional harm that stemmed from or resulted in a physical injury is compensable once the prima facie case of negligence is established, but mental or emotional harm, alone, is not sufficient to support a negligence action.
Exception: In some instances, negligent infliction of emotional distress may be actionable in the absence of a physical manifestation of injury.
NEGLIGENCE - HARM:
EGGSHELL-PLAINTIFF RULE
(State the Rule)
Rule: Once duty, breach, and causation have been established, a Defendant will be held liable for all injuries suffered by the Plaintiff due to the Defendant’s negligent act, regardless of whether the severity or type of injury was foreseeable.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
(State the Rule)
Rule: A Plaintiff may recover for emotional distress that is negligently inflicted by the Defendant if the harm suffered by the Plaintiff is foreseeable and the Defendant owed a general duty to refrain from causing such harm. To establish the Defendant’s liability for negligent infliction of emotional distress (NIED), the Plaintiff must prove:
1) The Defendant’s conduct created a risk of physical impact to the Plaintiff,
2) That act caused the Plaintiff severe emotional distress, AND
3) The emotional distress caused a physical injury or ailment in the Plaintiff.
Exception: The Plaintiff need not demonstrate a physical manifestation of emotional distress if the distress was caused by:
1) Negligent handling of a close relative’s corpse, OR
2) Erroneous notification of a close relative’s death.
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS:
BYSTANDER RECOVERY
(State the Rule)
Majority Rule: A Plaintiff bystander must be within the zone of physical danger created by the Defendant’s conduct to recover under NIED. Those outside the zone of danger cannot recover damages for their own distress.
Minority Rule: A Plaintiff outside the zone of physical danger can recover for NIED if the Plaintiff can demonstrate:
1) He was located near the scene of an accident that harmed another,
2) The emotional shock resulted from the contemporaneous observation of the accident, AND
3) He is closely related to the victim of the accident.
LIST 3 DEFENSES AVAILABLE TO A DEFENDANT ACCUSED OF NEGLIGENCE
1) Contributory Negligence
2) Comparative Negligence
3) Assumption of the Risk
Note: Contributory negligence and assumption ofthe risk act as a complete bar to a Plaintiff’s recovery. Comparative negligence generally serves only to reduce the amount that will be recovered.
NEGLIGENCE DEFENSES:
CONTRIBUTORY NEGLIGENCE
(Define & State the Rule)
Definition: Contributory negligence is conduct by the Plaintiff that:
1) Falls below the standard of conduct to which the Plaintiff should adhere to ensure his own protection, AND
2) Contributes to the Plaintiffs injuries.
Rule: Contributory negligence is a complete bar to recovery. Upon proof of the Plaintiffs contributory negligence, the Plaintiff will be barred from receiving damages.
NEGLIGENCE DEFENSES:
LAST CLEAR CHANCE DOCTRINE
(State the Rule)
Rule: Under the Last Clear Chance Doctrine, the Defendant may be held liable for negligence despite a finding of the Plaintiffs contributory negligence, if the Defendant negligently failed to avoid a danger after the Plaintiffs contributory negligence.
Note: The Last Clear Chance Doctrine applies only in contributory negligence jurisdictions.
NEGLIGENCE DEFENSES:
COMPARATIVE NEGLIGENCE
(Define & State the Rule)
Definition: Under comparative negligence, the Plaintiff will be awarded damages inversely proportional to the Plaintiffs level of responsibility for the harm caused.
Pure Comparative Negligence: Under pure comparative negligence, a Plaintiff can recover a percentage of damages, regardless of the severity or proportion of his own negligence (e.g., if the Plaintiff is found to be 95 percent responsible for the harm caused due to her own negligence, she still can recover 5 percent of the damages caused to her or her property).
Modified Comparative Negligence: Under modified comparative negligence, a Plaintiff can recover a percentage of damages, up to the point of the Plaintiff’s responsibility reaching or exceeding the level of responsibility of the Defendant, after which the Plaintiff will be denied recovery.
NEGLIGENCE DEFENSES:
ASSUMPTION OF THE RISK
(State the Rule)
Rule: Assumption of the risk is a complete bar to recovery by the Plaintiff. A Plaintiff will be found to have assumed the risk of injury or harm if the Plaintiff:
1) Knew of a particular risk, AND
2) Voluntarily acted to assume the risk.
Note: Assumption of the risk may be either express or implied:
1) Express: The Plaintiff accepts the risk by explicit agreement.
2) Implied: The Plaintiff voluntarily engages in an activity in which a reasonable person would be aware of the associated risks.
a) Where assumption of the risk is found to be implied, courts often apply the principles of comparative negligence to allow the Plaintiff partial recovery.
b) Assumption of the risk will not be implied if the Plaintiff had no choice but to assume the risk.
STRICT LIABILITY
(Define)
Definition: Strict liability torts are those in which a Defendant is held liable for the harmful consequences of his actions without regard to his intent, negligence, or fault.
Note: For purposes of the bar exam, strict liability actions are brought in response to harm caused by:
1) Animals,
2) Abnormally dangerous activities,
3) Defective products.
STRICT LIABILITY:
HARM CAUSED BY ANIMALS
(State the Rule)
Rule: An animal owner may be held strictly liable for damage or harm caused by her animals, depending upon the type of animal that causes the harm:
1) Livestock: At common law, an owner of livestock is held strictly liable for damage caused by livestock trespassing on others’ land, regardless of the care exercised by the owner to prevent the trespass. Modernly, an owner of livestock is strictly liable for foreseeable harm caused by trespassing livestock.
2) Domestic Animals: An owner of a domestic animal will be held strictly liable for injuries caused by the animal if the owner knew or should have known of the animal’s violent temperament or dangerous tendencies.
3) Wild Animals: An owner of wild animals in captivity will be held strictly liable for injuries caused by the animals, regardless ofthe level of care exercised or precautions taken.
STRICT LIABILITY:
HARM CAUSED BY ABNORMALLY DANGEROUS ACTIVITIES
(State the Rule)
Rule: A Defendant who engages in an abnormally dangerous activity will be held strictly liable for the damage caused by the activity, regardless of the precautions taken. To hold a Defendant strictly liable,
the Plaintiff must prove:
1) The Defendant was involved in an abnormally dangerous activity,
2) The risk associated with the activity could not be eliminated,
3) The Plaintiffs person or property was harmed, AND
4) The activity was controlled by the Defendant at the time the injury occurred.
Note: To determine whether a Defendant’s activity was abnormally dangerous, courts look to:
1) The level of risk inherent to the activity,
2) The magnitude ofthe harm risked,
3) The impossibility of removing all risk,
4) Whether the activity is appropriate to the location, AND
5) The value to the community of continuing the dangerous activity.
WHAT DEFENSES MAY BE AVAILABLE TO A DEFENDANT ACCUSED OF A STRICT LIABILITY TORT?
Rule: Once a Plaintiff has established the facts sufficient to prove the elements of a strict liability claim against the Defendant, the Defendant may argue:
1) Assumption of the risk (complete defense), OR
2) Comparative negligence (partial defense).
PRODUCTS LIABILITY:
WHAT TYPES OF DEFECTS WILL RENDER A PRODUCT DEFECTIVE FOR PRODUCTS-LIABILITY PURPOSES?
Rule: A productive may be found to be defective due to:
1) A manufacturing defect,
2) A design defect, OR
3) Inadequate warnings or instructions.
HOW DOES A PLAINTIFF PROVE A MANUFACTURING DEFECT?
Rule: To prove the existence of a manufacturing defect, the Plaintiff must prove:
1) The product failed to conform with its intended design, AND
2) The defect made the product unreasonably dangerous.
Note: A manufacturing defect exists when a particular product (or portion of a product line) fails to conform with its intended design due to a defect that occurred at the time of manufacturing.
HOW DOES A PLAINTIFF PROVE A DESIGN DEFECT?
Rule: A Plaintiff may establish the existence of a design defect through:
1) Alternative Reasonable Design Test: The risks associated with the product could have been reduced by the adoption of a reasonable alternative design.
2) Risk Versus Utility Test: The risks posed by the product as designed outweigh the utility of the product as designed.
3) Consumer Expectation Test: The product failed to perform as safely as an ordinary consumer would expect.
Note:
1) A design defect exists when products are unreasonably dangerous due to the failure to design an adequately safe product line.
2) The Defendant’s proof that the product was designed and produced with state-of-the-art technology at the time of distribution generally acts as an absolute defense to a charge of design defect.
WHAT FACTORS WILL A COURT LOOK TO WHEN DETERMINING IF THE DESIGN PASSES MUSTER UNDER THE RISK VERSUS UTILITY TEST?
Rule: To determine if the risk of the product as designed outweighs the utility of the product as designed, courts will look to:
1) The usefulness ofthe product,
2) The safety precautions built into the product,
3) The availability of a substitute product or design,
4) The manufacturer’s ability to eliminate the risks associated with the product,
5) The buyer’s or user’s ability to avoid the risks associated with the product,
6) The buyer’s or user’s anticipated awareness of the risks associated, AND
7) The manufacturer’s ability to spread costs associated with increasing the safety of the product’s design.
DEFECT DUE TO INADEQUATE WARNING OR INSTRUCTION
(Define & State the Rule)
Definition: A defect due to inadequate warning or instruction exists when the manufacturer fails to warn of a known risk.
Rule: To establish the existence of a defect due to inadequate warning or instruction, the Plaintiff must prove:
1) A risk was known to the manufacturer,
a) Note: The risk must have been known at the time of distribution.
2) The risk was not readily apparent to the Plaintiff.
3) The manufacturer failed to warn the Plaintiff about the risk, AND
4) The Plaintiff would not have used the product if she had been properly warned.
**Note: **
1) The manufacturer must warn not only of risks associated with the product’s intended uses, but also of risks associated with the product’s reasonably foreseeable misuses.
2) A non-manufacturing seller must warn only of risks that are known or readily apparent to the seller. The seller does not have a duty to inspect.
LIST 3 THEORIES ON WHICH A PLAINTIFF MAY BRING SUIT FOR PRODUCTS LIABILITY
1) Negligence
2) Breach of Warranty
3) Strict Liability
PRODUCTS LIABILITY:
NEGLIGENCE THEORY
(State the Rule)
Rule: To establish negligence liability for a defective product, the Plaintiff must prove:
1) The Defendant owed the Plaintiff a duty of care,
2) The Defendant breached that duty,
3) The breach was the actual and proximate cause of the Plaintiff’s injury, AND
4) The Plaintiff or his property suffered actual physical harm.
Note: All parties along the product supply chain from manufacturing to the sale of the product may be held liable under a negligence theory of products liability.
NEGLIGENCE THEORY:
WHAT DUTIES ARE OWED BY MANUFACTURERS & SELLERS?
Manufacturers: Manufacturers have a duty to:
- Exercise reasonable care in the design and manufacture of the product so as to avoid unreasonable risk of harm to foreseeable plaintiffs, AND
- Provide adequate warnings and instructions as to the proper use of the product and risks to be avoided in the use of the product.
Non-Manufacturer Sellers: Non-manufacturer sellers have a duty to warn of any risks reasonably ascertainable by the seller (i.e.. that could be discovered by a quick inspection), but of which a reasonable buyer or user would be unaware.
NEGLIGENCE THEORY:
TO WHOM IS THE DUTY OWED?
Rule: A duty is owed to all foreseeable plaintiffs. A foreseeable Plaintiff is anyone who:
- Would put the product to a foreseeable use.
- Would put the product to a foreseeable misuse, OR
- Would be affected by the use or misuse of the product.
Note: Foreseeability is determined by what was known or should have been known when the product was manufactured.
NEGLIGENCE THEORY:
BREACH
(State the Rule)
Rule: To establish the Defendant breached its duty, the Plaintiff must prove:
- The product was defective, AND
- The defect was a result of the Defendant’s failure to act with reasonable care.
Note:
- To determine whether the Defendant failed to act with reasonable care, courts will apply the Hand Formula (B < P x L).
- As with other negligence actions, the Plaintiff may invoke res ipsa loquitorto
establish the Defendant’s duty and
breach. - As with other negligence actions, the Plaintiff may rely on negligence per se to establish breach (i.e., that the Defendant violated a safety ordinance or statute).
NEGLIGENCE THEORY:
CAUSATION
(State the Rule)
Rule: A plaintiff must show that the Defendant’s breach was the actual and proximate cause of the Plaintiffs injury.
Note: Evidence of recent purchase and ordinary use of the product will aid the Plaintiff in establishing causation.
NEGLIGENCE THEORY:
HARM
(State the Rule)
Rule: A Plaintiff must demonstrate the Defendant’s breach caused actual physical harm to her person or property. Economic loss is not sufficient.
BREACH OF WARRANTY THEORY:
WHAT WARRANTIES MAY BE INCLUDED WITH THE SALE OF A PRODUCT?
- Express Warranties
- Implied Warranties
- Warranty of Fitness for a Particular Purpose
- Warranty of Merchantability
Note: As with negligence and strict liability, any person who buys, uses, or is affected by the use of a product generally may bring suit (i.e., has standing) against the Defendant under a breach of warranty theory.
BREACH OF WARRANTY THEORY:
EXPRESS WARRANTY
(Define & State the Rule)
Definition: Express warranties are oral, written, or visual representations made by the seller to the buyer communicating that the product meets certain standards or has certain qualities.
Rule: A seller will be held liable for breach of an express warranty if:
- The seller makes an express representation as to the quality or characteristic of a product, AND
- The product did not have the promised quality or characteristic.
Note:
- The seller’s representations must be statements of fact, not mere opinion.
- The seller’s belief or reasonableness of belief in the truth of her statements is irrelevant.
BREACH OF WARRANTY THEORY:
IMPLIED WARRANTY OF MERCHANTABILITY
(Define & State the Rule)
Definition: The implied warranty of merchantability warrants that products are fit for their ordinary purpose.
Rule: A seller will be held liable for breach of implied warranty of merchantability if the product is not fit for ordinary use.
Note:
- The seller must be a commercial merchant of the product sold (i.e., must regularly sell goods of that kind).
- A minority of jurisdictions limit standing to sue for breach of implied warranty of merchantability to the purchaser and the purchaser’s family and guests.
- Plaintiffs may recover for pure economic loss in addition to physical harm.
BREACH OF WARRANTY THEORY:
IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE
(Define & State the Rule)
Definition: The implied warranty of fitness for a particular purpose warrants that the goods are fit for the buyer’s particular purpose.
Rule: A seller will be held liable for breach of an implied warranty of fitness for a particular purpose if the Plaintiff can prove:
- The seller knew or had reason to know the Plaintiff desired the goods for a particular purpose,
- The Plaintiff relied on the seller’s expertise or judgment to select the goods, AND
- The goods were not suitable for the Plaintiffs particular purpose.
Note:
- The seller does not have to be a commercial merchant of the product sold. Any seller can be held liable for breach of warranty of fitness for a particular purpose.
- Plaintiffs may recover for pure economic loss in addition to physical harm.
BREACH OF WARRANTY THEORY:
DISCLAIMERS OF WARRANTIES
(State the Rule)
Express Warranties: A seller may not disclaim an express warranty once it has been made, but the seller can limit the remedies available for breach of warranty.
Implied Warranties: A seller may limit liability or damages for breach of implied warranties through the use of a disclaimer:
- Merchantability: The disclaiming language must mention merchantability and be conspicuous.
- Fitness for a Particular Purpose: The disclaiming language must be in writing and conspicuous.
Note: Language such as “as is” or “with all faults” generally will suffice to disclaim both implied warranties if the disclaimer is conspicuously placed.
PRODUCTS LIABILITY:
STRICT LIABILITY THEORY
(State the Rule)
Rule: A manufacturer or seller of a defective and unreasonably dangerous product will be held strictly liable for the physical harm caused to the user of the product if:
- The product is defective and unreasonably dangerous,
- The manufacturer or seller is responsible for placing the product in the stream of commerce,
- The product reached the user or consumer without substantial alteration, AND
- The defective product caused harm to the person or property of the user or consumer.
Note:
- Everyone in the chain of distribution (i.e., manufacturer, wholesaler, merchant) can be held strictly liable for an unreasonably dangerous defective product.
- As with other strict liability torts, the manufacturer’s or seller’s reasonable or extraordinary care in preparation or sale of the product will not act as a defense.
- Only the user or consumer of the product may bring suit under a strict products liability theory. However, it is not necessary that the user or consumer be the individual who purchased the product from the seller.
STRICT LIABILITY THEORY:
HOW IS IT DETERMINED IF A PRODUCT IS UNREASONABLY DANGEROUS?
Rule: A product will be found to be unreasonably dangerous if it is so dangerous that a reasonable consumer with ordinary knowledge of the product would not contemplate or expect the danger to arise from a reasonably foreseeable use of the product.
Note: The unreasonable danger must come from a defect in the product to meet the requirements of strict liability.
PRODUCTS LIABILITY:
WHAT DEFENSES MAY BE AVAILABLE TO A DEFENDANT CHARGED WITH LIABILITY FOR A DEFECTIVE PRODUCT?
1) Assumption of the Risk
2) Contributory or Comparative Negligence
3) State-of-the-Art Design
4) Disclaimer
PRODUCTS LIABILITY DEFENSES:
ASSUMPTION OF THE RISK
Rule: A Defendant can defend against a negligence, breach of warranty, or strict liability claim by proving the Plaintiff voluntarily assumed the risk.
PRODUCTS LIABILITY DEFENSES:
CONTRIBUTORY OR COMPARATIVE NEGLIGENCE
Common Law: A Defendant can defend against a negligence claim by showing the Plaintiff was contributory or comparatively negligent. However, contributory or comparative negligence generally is not a defense to a charge of breach of warranty or strict liability.
Modern Approach: A Defendant’s liability for a negligence, breach of warranty, or strict liability action may be reduced by the Plaintiffs comparative negligence.
LIST 2 TYPES OF NUISANCE
- Private Nuisance
- Public Nuisance
Note: Nuisance actions can be based on the Defendant’s
intentional or negligent activity, or strict liability in cases of abnormally dangerous activities.
PUBLIC NUISANCE
(Define & State the Rule)
Definition: A public nuisance is a substantial and unreasonable interference with a right commonly held by the general public.
Rule: Courts will hold a Defendant liable for public nuisance if the Defendant’s conduct:
- Substantially interferes with the public’s health, safety, peace, comfort, or convenience,
- Is continuous and substantially and detrimentally affects a public right, OR
- Resulted in a long-lasting effect and substantially and detrimentally affects a public right.
WHO CAN BRING SUIT FOR PUBLIC NUISANCE?
Rule: A public nuisance action may be brought by:
1) A public official or agency, OR
2) A private person or business that has suffered special damage (i.e., different or more severe harm than that suffered by the public at large).
Note:
1) A private person bringing suit for public nuisance must prove the additional element of having suffered a different or more severe harm than that suffered by the public.
2) The Plaintiff need not have a possessory or ownership interest in the affected property to bring suit.
PRIVATE NUISANCE
(Define & State the Rule)
Definition: Private nuisance is a substantial and unreasonable interference with a private individual’s use and enjoyment of her land.
Rule: To establish the Defendant’s liability for private nuisance, the Plaintiff must prove the Defendant’s conduct substantially and unreasonably interfered with the Plaintiffs use and enjoyment of her land.
Note:
1) The nuisance action must be brought by one with a possessory or ownership interest in the affected land.
2) If the Plaintiff is bringing suit under a strict liability theory (i.e., abnormally dangerous activity), the Plaintiff does not have to establish that the Defendant’s interference was unreasonable.
NUISANCE:
SUBSTANTIAL AND UNREASONABLE INTERFERENCE
(Define)
Substantial Interference
Definition: Substantial interference will be found if the Defendant’s conduct:
1) Causes damage or harm to another’s land or person, OR
2) Causes another to reasonably feel extreme discomfort, annoyance, or inconvenience (i.e., would also cause a person of normal sensitivity to feel discomfort, etc.).
Unreasonable Interference
Definition: Unreasonable interference will be found if the harm suffered by the Plaintiff outweighs the benefit to the Defendant of continuing the activity.
LIST 2 COMMON DEFENSES THAT CAN BE RAISED IN RESPONSE TO A CHARGE OF NUISANCE
1) Contributory Negligence
2) Coming to the Nuisance
NUISANCE DEFENSES:
COMING TO THE NUISANCE
(Define & State the Rule)
Definition: Coming to the nuisance (a form of assumption of the risk) occurs when the Plaintiff buys or takes possession of property with conditions or activity that would create the nuisance already present.
Common Law: Traditionally, proof that the Plaintiff assumed the risk by coming to the nuisance was a complete bar to recovery.
Modern Approach: Modernly, proof that the Plaintiff assumed the risk by coming to the nuisance will be considered as one factor in determining whether the interference caused by the Defendant’s activity was substantial and unreasonable.
Note:
1) When determining the reasonableness of the interference, courts also consider:
a) The Defendant’s activity is appropriate for the surrounding area, AND
b) The Plaintiff’s use of her property is appropriate for the surrounding area.
2) Coming to the nuisance is a bar to recovery when a Plaintiff purchases property for the sole purpose of bringing a nuisance action.
FIRST AMENDMENT TORTS:
DEFAMATION
(Define)
Definition: Defamation is the writing or speaking of untrue derogatory facts about another to a third party. Defamation may be either:
1) Libel: Usually written or printed defamatory language or pictures. Sufficiently permanent defamation that has been widely disseminated (e.g.. DVD recording) may also be libel.
2) Slander: Spoken defamatory language.
FIRST AMENDMENT TORTS:
DEFAMATION
(State the Rule)
Rule: To establish the Defendant’s liability for common law defamation, the Plaintiff must prove:
1) The Defendant made a defamatory statement,
2) The statement was of and concerning the Plaintiff,
3) The Defendant published the statement to a third party, AND
4) The Plaintiff suffered harm (i.e., damages).
Note:
1) Whether the Plaintiff must demonstrate actual harm to fulfill the damages requirement depends upon whether the defamation action is for libel or slander.
2) Under the common law, the Defendant’s fault (i.e., falsity of the statement) is presumed. However, if the statement is about a public official or figure, or a matter of public concern, First Amendment principles require that the Plaintiff also establish fault.
DEFAMATION:
DEFAMATORY STATEMENT
(Define & State the Rule)
Definition: A defamatory statement is an untrue derogatory statement of fact that, if believed, would cause harm to the Plaintiff’s reputation.
Rule: To establish that a statement is defamatory, the Plaintiff must prove:
1) The statement is disparaging toward the Plaintiff,
2) The statement, if accepted as true, would cause others to form a negative opinion about the Plaintiff, AND
3) The statement is a factual assertion (not opinion).
Note:
1) The Plaintiff need only show that a significant minority of right-thinking (i.e., reputable) people would form a negative opinion of the Plaintiff if the statement
were believed.
2) When determining defamation in a jury trial, the judge determines, as a matter of law, whether the statement could be construed as defamatory, and the jury determines whether the statement made was, in fact, defamatory.
3) If a statement can be interpreted in more than one manner, the Plaintiff may establish the statement’s defamatory nature by offering proof that at least one person understood it to be defamatory.
DEFAMATION:
OF AND CONCERNING THE PLAINTIFF
(State the Rule)
Rule: The Plaintiff must demonstrate that the defamatory statement was reasonably understood to refer to the Plaintiff.
Note:
1) If the Plaintiff is not specifically referenced in the statement, he must offer extrinsic evidence to prove that the statement refers to him.
2) Whether the Defendant intended to refer to the Plaintiff is irrelevant.
3) When a defamatory statement refers to a group of people and does not name any one individual, a Plaintiff has standing to bring suit if he can establish his membership in that group.
4) If, however, the group is large (e.g., citizens of Los Angeles), an action for defamation will not succeed.
DEFAMATION:
PUBLICATION
(State the Rule)
Rule: The Plaintiff must prove that the Defendant intentionally or negligently communicated the defamatory statement to a third party.
Note: Republishers of statements (i.e., those who repeat or republish a defamatory statement made by another) generally will be held liable for defamation to the same extent as the primary speaker or author if they knew of the defamatory nature of the content.
DEFAMATION:
DAMAGES
(State the Rule)
Rule: Whether the Plaintiff must demonstrate actual harm to fulfill the damages requirement depends upon the type of defamation:
1) Libel Per Se: Damages are presumed.
2) Libel Per Quod: Plaintiff must prove damages (minority rule).
3) Slander: Plaintiff must prove damages.
4) Slander Per Se: Damages are presumed.
Note:
1) When damages are presumed (libel per se and slander per se), the damages presumed are general (i.e., it is presumed that the Plaintiffs reputation or emotional well-being was damaged). The Defendant may, but is not required to, offer evidence of actual reputational or economic harm.
2) When it is required that the Plaintiff prove damages (libel per quod and slander), the Plaintiff must prove special damages (i.e., the Plaintiff must prove he suffered economic harm).
DEFAMATION:
GENERAL & SPECIAL DAMAGES
(Define)
General Damages: Harm to the Plaintiffs reputation, or emotional or psychological trauma suffered by the Plaintiff.
Special Damages: Specific economic losses caused by or resulting from the defamatory statement.
LIBEL PER SE
(Define & State the Rule)
Definition: Libel per se is libel that is defamatory on its face. No interpretation or explanation is required to understand the defamatory meaning of the statement.
Rule: A Plaintiff does not have to prove special damages for a libel per se defamation action.
LIBEL PER QUOD
(Define & State the Rule)
Definition: Libel per quod is libel whose defamatory meaning can be discerned in light of the context or circumstances in which the statement is made, but is not defamatory on its face.
Majority Approach: A Plaintiff does not have to prove special damages for a libel per quod defamation action.
Minority Approach: In a minority of jurisdictions, if a libelous statement is not defamatory on its face, the Plaintiff must:
1) Introduce extrinsic evidence to demonstrate the defamatory nature of the statement, AND
2) Prove the Plaintiff suffered an economic loss due to the defamatory statement (i.e., special damages).
SLANDER PER SE
(Define & State the Rule)
Definition: Slander per se is spoken defamation that is considered inherently harmful.
Rule: In an action for slander per se, the Plaintiff does not have to prove damages. Slander per se will be found where the Defendant’s statement:
1) Attacks a person’s character, standing or competence in a manner that directly calls into question the Plaintiffs competence to perform adequately in her trade or profession,
2) Alleges the Plaintiff is infected with a loathsome disease (e.g., leprosy or venereal diseases),
3) Alleges the Plaintiff has engaged in serious sexual misconduct (e.g., a married person being unchaste), OR
4) Alleges the Plaintiff has engaged in serious criminal misconduct (e.g., crime of moral turpitude).
WHEN ARE FIRST AMENDMENT CONCERNS RELEVANT IN A DEFAMATION ACTION?
Rule: The First Amendment’s protection of free speech is relevant due to its requirement that the Plaintiff meet a higher burden of proof to establish defamation for statements made regarding:
1) A public official,
2) A public figure, OR
3) A private person regarding a matter of public concern.
PUBLIC OFFICIAL
(Define)
Definition: A public official is a government employee who:
1) Has, or appears to have, substantial responsibility for or control over the conduct of governmental affairs, AND
2) Occupies a position sufficiently high in the hierarchy of
government as to invite public scrutiny and discussion.
PUBLIC FIGURE
(Define)
All-Purpose Public Figure: A public figure is a person who is not a public official but who has achieved pervasive fame or notoriety or attracted considerable public interest due to her activities, accomplishments, or position in society (e.g., a celebrity, political candidate, baseball player).
Limited Public Figure: A limited public figure is a person who has done something that has generated publicity or drawn widespread attention, but only with respect to a particular controversy or matter. Limited public figures may be voluntary or involuntary:
1) Voluntary Limited Public Figure: A person who has thrust herself to the forefront of a public controversy in order to influence the resolution of the issues involved.
2) Involuntary Limited Public Figure: A person who has become widely known due to publicity of a particular issue or controversy, but who did not want or invite the public attention.
PRIVATE PERSON & MATTER OF PUBLIC CONCERN
(Define)
Private Person: A private person is one who does not represent a public institution and has not achieved fame or notoriety or otherwise attracted widespread public interest or scrutiny.
Matter of Public Concern: A matter of public concern is an issue or event that affects the public interest or that the public has a need to know.
WHAT MUST BE PROVEN BY A PUBLIC OFFICIAL OR PUBLIC FIGURE TO PREVAIL IN A DEFAMATION ACTION?
Rule: If the Plaintiff is a public official or figure, the Plaintiff must prove, in addition to the prima facie elements of common law defamation, that:
1) The statement was false, AND
2) The statement was made with actual malice. Actual malice will be found if the Defendant:
a) Knew the statement was false, OR
b) Made the statement with reckless disregard as to its truth.
Note: The plaintiff bears the burden of proving actual malice by clear and convincing evidence.
WHAT MUST BE PROVEN BY A PRIVATE PERSON TO PREVAIL IN A DEFAMATION ACTION?
Rule: If the Plaintiff is a private person and the statement regards a matter of public concern, the Plaintiff must prove, in addition to the common law elements of defamation, that:
1) The statement was false, AND
2) The Defendant acted negligently in making the statement.
Note: Whether the Plaintiff must demonstrate actual harm to her economic interests or reputation depends upon the mental state of the Defendant:
1) If the Plaintiff can demonstrate that the Defendant acted with actual malice, the Plaintiff need not prove actual harm (i.e., general damages will be presumed).
2) If the Plaintiff can demonstrate that the Defendant acted only negligently, the Plaintiff must also prove actual harm to recover.
WHAT DEFENSES ARE AVAILABLE TO A DEFENDANT ACCUSED OF DEFAMATION?
1) Truth (complete defense)
2) Privilege
3) Opinion
4) Consent (complete defense)
DEFAMATION DEFENSES:
ABSOLUTE PRIVILEGE
(Define & State the Rule)
Definition: An absolute privilege applies when public policy or the administration of justice demands the speaker be given complete immunity.
Rule: A speaker with an absolute privilege is completely protected from liability for defamation, no matter the falsity or outrageousness of the statement or the speaker’s intent.
Note: The absolute privilege applies to:
1) Witnesses in legislative, executive and judicial proceedings,
2) Reporting of criminal activity to a police officer,
3) Proceedings before administrative licensing bodies,
4) Legislators speaking in legislative proceedings, AND
5) Compelled publications.
DEFAMATION DEFENSES:
QUALIFIED PRIVILEGE
(Define & State the Rule)
Definition: A qualified privilege acts to protect a speaker who has a public or private duty to make the statement, or feels a moral or social obligation to do so if the speaker acted within the scope of the privilege and in good faith.
Rule: A speaker will be protected by a qualified privilege if the speaker acts within the scope of the privilege and without malice.
Note: The speaker will lose a qualified privilege if the Plaintiff can prove the speaker acted with actual malice.
DEFAMATION DEFENSES:
OPINION
(State the Rule)
Majority: Only a statement of fact will support a claim for defamation. A person’s statement of opinion is not actionable.
Minority: Any statement that suggests or hints at a factual basis for the opinions claimed will support a claim for defamation.
Note: Whether a statement is one of fact or opinion often depends upon the context in which the statement was made.
INVASION OF PRIVACY:
LIST 4 TORTS THAT FALL UNDER THE INVASION OF PRIVACY UMBRELLA
1) Appropriation of Name or Likeness
2) Intrusion Upon Seclusion
3) False Light
4) Public Disclosure of Private Facts
INVASION OF PRIVACY:
APPROPRIATION OF NAME OR LIKENESS
(State the Rule)
Rule: To establish a Defendant’s liability for invasion of privacy through appropriation of name or likeness, the Plaintiff must prove:
1) The Defendant appropriated the Plaintiffs name or likeness,
2) The appropriation was for the Defendant’s own use or benefit, AND
3) The Plaintiff did not consent.
Note: Appropriation does not apply to journalistic articles or books written about another.
INVASION OF PRIVACY:
INTRUSION UPON SECLUSION
(State the Rule)
Rule: To establish a Defendant’s liability for invasion of privacy through intrusion upon seclusion, the Plaintiff must prove:
1) The Defendant intentionally intruded upon the Plaintiffs solitude or seclusion, AND
2) The intrusion would be highly offensive to a reasonable person.
Note:
1) The intrusion must invade the Plaintiffs zone of privacy (i.e., a place where the Plaintiff can reasonably expect to be left alone).
2) The intrusion can be physical or non-physical (e.g., a photograph taken through the window of the Plaintiffs home).
INVASION OF PRIVACY:
FALSE LIGHT
(State the Rule)
Rule: To establish a Defendant’s liability for invasion of privacy through false light, the Plaintiff must prove:
1) The Defendant publicized false facts about the Plaintiff, AND
2) A reasonable person would object to the publication of those facts.
Note: If the matter is a matter of public interest, both public and private plaintiffs must also prove the Defendant acted with actual malice.
INVASION OF PRIVACY:
PUBLIC DISCLOSURE OF PRIVATE FACTS
(State the Rule)
Rule: To establish a Defendant’s liability for invasion of privacy due to public disclosure of private facts, the Plaintiff must prove:
1) The Defendant publicized private facts about the Plaintiff.
2) The publication would be highly offensive to a reasonable person, AND
3) The facts do not legitimately affect the public interest.
WHAT DEFENSES ARE AVAILABLE FOR A CHARGE OF INVASION OF PRIVACY?
1) Consent
2) Privilege (Absolute and Qualified)
LIST 2 TYPES OF MISREPRESENTATION
1) Intentional Misrepresentation
2) Negligent Misrepresentation
INTENTIONAL MISREPRESENTATION
(State the Rule)
Rule: To establish a Defendant’s liability for intentional misrepresentation, the Plaintiff must prove:
1) The Defendant made a misrepresentation of a material fact to the Plaintiff,
2) The Defendant intended to induce the Plaintiffs reliance on the statement,
3) The Defendant knew the statement was false (or acted with reckless disregard as to its truth),
4) The Plaintiff justifiably relied on the statement, AND
5) The Plaintiff suffered economic harm.
NEGLIGENT MISREPRESENTATION
(State the Rule)
Rule: To establish a Defendant’s liability for negligent misrepresentation, the Plaintiff must prove:
1) The Defendant made an untrue, inaccurate, or misleading representation to the Plaintiff,
2) The Defendant owed the Plaintiff a duty of care,
3) The misrepresentation fell below the standard of care required,
4) The Plaintiff justifiably relied on the representation, AND
5) The Plaintiff suffered economic harm.
LIST 2 TYPES OF INTERFERENCE WITH BUSINESS RELATIONS
1) Intentional Interference with Contract
2) Intentional Interference with Prospective Economic Advantage
INTERFERENCE WITH BUSINESS RELATIONS:
INTENTIONAL INTERFERENCE WITH CONTRACT
(State the Rule)
Rule: To prove a Defendant’s liability for interference with contract, the Plaintiff must prove:
1) A contract existed between the Plaintiff and a third party,
2) The Defendant knew or should have known of the contract’s existence,
3) The Defendant intentionally and improperly interfered with the contract,
4) The contract was in fact disturbed, AND
5) The Plaintiff suffered economic harm.
Note: Interference will be found if the Defendant induces the third party to breach the contract or makes it impossible for the contract to be performed.
INTERFERENCE WITH BUSINESS RELATIONS:
INTENTIONAL INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE
(State the Rule)
Rule: To prove a Defendant’s liability for interference with prospective economic advantage, the Plaintiff must prove:
1) The existence of an economic relationship between the Plaintiff and a third party,
2) The relationship contained the probability of future economic benefit to the Plaintiff,
3) The Defendant knew of the relationship and expected benefit,
4) The Defendant intentionally interfered with the relationship,
5) The relationship was in fact disturbed, AND
6) The Plaintiff suffered economic harm.
LIST 4 DEFENSES TO INTERFERENCE WITH BUSINESS RELATIONS
1) Fair and ethical competition,
2) Reasonable action to protect the interests of a third party,
3) Reasonable action to protect one’s own financial interest,
4) Interference with an illegal contract.
LIST 3 TYPES OF WRONGFUL INSTITUTION OF LEGAL PROCEEDINGS
1) Malicious Prosecution
2) Wrongful Use of Civil Proceedings
3) Abuse of Process
WRONGFUL INSTITUTION OF LEGAL PROCEEDINGS:
MALICIOUS PROSECUTION
(State the Rule)
Rule: To establish a Defendant’s liability for malicious prosecution, the Plaintiff must prove:
1) The Defendant instituted criminal proceedings against the Plaintiff,
2) The criminal case was terminated in the Plaintiffs favor,
3) Probable cause did not exist for the criminal charges,
4) The Defendant acted with an improper purpose (i.e., a reason other than pursuit of justice), AND
5) The Plaintiff was harmed.
Note: Prosecutors are immune from liability for malicious prosecution.
WRONGFUL INSTITUTION OF LEGAL PROCEEDINGS:
WRONGFUL USE OF CIVIL PROCEEDINGS
(State the Rule)
Rule: To establish a Defendant’s liability for wrongful use of civil proceedings, the Plaintiff must prove:
1) The Defendant instituted civil proceedings against the Plaintiff,
2) The civil case was terminated in the Plaintiffs favor,
3) Probable cause (or reasonable belief) did not exist for the civil claim,
4) The Defendant acted with an improper purpose (i.e., a reason other than the pursuit of justice), AND
5) The Plaintiff was harmed.
WRONGFUL INSTITUTION OF LEGAL PROCEEDINGS:
ABUSE OF PROCESS
(State the Rule)
Rule: To establish a Defendant’s liability for abuse of process, the Plaintiff must prove:
1) The Defendant wrongfully used the legal process for an ulterior purpose, AND
2) The Plaintiff was harmed.
Note: Abuse of process is distinguished from malicious prosecution or wrongful use of civil proceedings in that abuse of process is the use of legal channels to abuse or harm the Plaintiff (e.g., misuse of a subpoena to testify).
STEP 2 -
JOINT OR THIRD-PARTY LIABILITY:
JOINT & CONCURRENT TORTFEASORS
(Define)
Joint Tortfeasors: Joint tortfeasors are two or more people who acted together to cause injury to the Plaintiff.
Concurrent Tortfeasors: Concurrent tortfeasors are two or more people whose independent acts together caused an indivisible harm to the Plaintiff (i.e., they did not work together, but their acts combined to cause the Plaintiffs harm, and the amount of harm caused by each Defendant cannot be determined).
JOINT OR THIRD-PARTY LIABILITY:
JOINT & SEVERAL LIABILITY
(Define & State the Rule)
Definition: Joint and several liability is the notion of holding all Defendants who proximately caused an indivisible injury to the Plaintiff fully and individually responsible for the extent of the Plaintiffs injuries.
Rule: At common law, co-tortfeasors are held jointly and severally liable if:
1) They worked together to cause the injury (joint tortfeasors), regardless of whether the injury was divisible, OR
2) Their independent acts caused an indivisible harm (concurrent tortfeasors).
Note: Under a theory of joint and several liability, if the Plaintiff is unable to collect from one joint tortfeasor, she may collect the full amount from the remaining (solvent) tortfeasors.
JOINT & SEVERAL LIABILITY:
WHO PAYS WHEN DEFENDANTS ARE HELD JOINTLY & SEVERALLY LIABLE?
(State the Rule)
Common Law: Traditionally, each joint or concurrent tortfeasor paid a portion of the damages equal to the pro rata share (e.g., if two tortfeasors, each would pay half; if three, each would pay one-third).
Modern Approach: Modernly, the majority of jurisdictions follow a theory of comparative liability, under which each Defendant pays only for the percentage of harm caused by that Defendant if the percentage of harm caused by each Defendant can be determined.
Note: Under joint and several liability, if one Defendant is unable to pay, that Defendant’s share of financial responsibility will be allocated among the remaining Defendants, even if the jurisdiction follows a comparative liability approach for allocating damages.
JOINT OR THIRD-PARTY LIABILITY:
CONTRIBUTION
(Define & State the Rule)
Definition: Contribution is a way of forcing co-tortfeasors to share responsibility for harm caused to the Plaintiff.
Rule: If a Defendant is required to pay for a higher percentage of damages than the percentage of harm caused by the Defendant, the Defendant may seek contribution from co-tortfeasors if the Defendant can prove:
1) The co-tortfeasor worked with the Defendant to cause the harm (joint tortfeasor), OR
2) The co-torfeasor’s independent act contributed to the Plaintiffs injury such that the harm caused by the Defendant was indivisible (concurrent tortfeasor).
JOINT OR THIRD-PARTY LIABILITY:
INDEMNIFICATION
(Define & State the Rule)
Definition: Indemnification is the shifting of complete financial responsibility from the Defendant to a third party.
Rule: A Defendant may receive indemnity from a third party if:
1) The third party is deemed more culpable than the Defendant, OR
2) Principles of justice require that the third party be required to pay.
Note: Issues of indemnification usually arise in questions of vicarious liability.
JOINT OR THIRD-PARTY LIABILITY:
VICARIOUS LIABILITY
(Define)
Definition: Vicarious liability is a legal doctrine that allows liability to be assigned to a person who did not cause an injury, but is in a relationship with the original tortfeasor such that it is deemed just to hold the third party vicariously liable.
VICARIOUS LIABILITY:
DOCTRINE OF RESPONDEAT SUPERIOR
(State the Rule)
Rule: A principal (employer) will be held vicariously liable for tortious acts committed by his agent (employee) if the tortious acts occur while the employee was acting within the course or scope of the agency relationship (employment).
Note:
1) An act is within the course or scope of employment if the act is necessary to carry out the required job functions or if it would reasonably be expected that the employee would perform the act.
2) Minor deviations (e.g., a delivery driver stopping for a soda at a convenience store) generally are held to be within the course and scope of employment. Large deviations (e.g., delivery driver driving 50 miles out of his way to go gambling while on duty) generally are found to be outside the scope of employment.
VICARIOUS LIABILITY:
VEHICLE OWNERS
(State the Rule)
Rule: Generally, an automobile owner is not vicariously liable for the tortious conduct of another person driving his vehicle.
Exceptions:
1) Family Purpose Doctrine
a) Rule: Under the Family Purpose Doctrine, the owner of a vehicle is liable for tortious conduct of family members driving the car for the family’s benefit.
2) Permissive Use
a) Rule: Under permissive use statutes, liability is imputed to the owner for the acts of anyone driving the owner’s vehicle with the owner’s express or implied consent.
3) Negligent Entrustment
a) Rule: An owner will be liable for allowing a person the owner knows or should know is negligent to drive the car.
VICARIOUS LIABILITY:
PARENT FOR CHILD
(State the Rule)
Common Law: At common law, parents are not held vicariously liable for the conduct of their children.
Modern Approach: Modernly negligence will be imputed if a parent:
1) Provides the child with a dangerous instrumentality,
2) Fails to supervise the child, OR
3) Is aware of and sanctions the child’s negligent conduct.
VICARIOUS LIABILITY:
TAVERNKEEPERS
(DRAM SHOP LAWS)
(State the Rule)
Common Law: Liability will not be imputed for injuries caused by an intoxicated customer.
Modern Approach: Bartenders and owners will be held vicariously liable for injuries caused by intoxicated customers if the bartender/owner was negligent in serving the customer.
Note: The customer must be inebriated or underage when served alcohol for the bartender/owner to be held liable.
STEP 3 -
REMEDIES:
WHAT TYPE OF REMEDIES MAY BE AVAILABLE IN TORT?
1) Money Damages
2) Equitable Remedies
DAMAGES
(Define)
Definition: Damages refer to the money awarded to the
Plaintiff to compensate for the physical injury suffered.
NOMINAL DAMAGES
(Define & State the Rule)
Definition: Nominal damages are awarded to the Plaintiff as a symbolic act (usually constituting one dollar).
Rule: Nominal damages are awarded when the Plaintiff has established the prima facie elements of a tort, but no actual harm has been suffered.
COMPENSATORY DAMAGES
(Define & State the Rule)
Definition: Compensatory damages are awarded to repay the Plaintiff for injuries suffered due to the Defendant’s tortious conduct.
Rule: Compensatory damages are awarded to compensate the Plaintiff for economic, physical, and emotional losses.
PUNITIVE DAMAGES
(Define & State the Rule)
Definition: Punitive damages are awarded as a form of punishment and deterrence.
Rule: Punitive damages are awarded to punish the Defendant for particularly egregious tortious conduct and to act as a deterrent to the commission of similar acts in the future.
DAMAGES:
HOW ARE COMPENSATORY DAMAGES DETERMINED FOR PERSONAL INJURY?
Rule: Plaintiffs who have suffered a pers onal injury can recover compensatory damages for:
1) Medical expenses,
2) Lost income,
3) Pain and suffering, AND/OR
4) Other economic losses attributable to the injury (e.g., future losses).
DAMAGES:
HOW ARE COMPENSATORY DAMAGES DETERMINED FOR HARM CAUSED TO PROPERTY?
Rule: Damages awarded to compensate for harm or
destruction of property are measured by the fair market value of the property at the time the tortious act was committed.
DAMAGES:
HOW ARE COMPENSATORY DAMAGES DETERMINED FOR HARM CAUSED TO PROPERTY?
Rule: Damages awarded to compensate for harm or
destruction of property are measured by the fair market
value of the property at the time the tortious act was committed.
DAMAGES:
HOW ARE PUNITIVE DAMAGES DETERMINED?
Rule: Generally, punitive damages will be no more than 10 times the amount of the compensatory damages awarded.
Note: Due Process prohibits the awarding of grossly excessive damages against tortfeasors.
DAMAGES:
COLLATERAL SOURCE RULE
(State the Rule)
Rule: Under the Collateral Source Rule, the amount of damages owed by the Defendant to the Plaintiff cannot be reduced due to the Plaintiffs receipt of money from other sources (e.g.. insurance).
Note: The Collateral Source Rule prohibits the parties from informing the jury of the existence of other sources of payment.
DAMAGES:
PLAINTIFFS DUTY TO MITIGATE
(State the Rule)
Rule: Plaintiffs have a duty to mitigate the economic or physical harm that results from the Defendant’s tortious conduct, whenever mitigation is possible. If a Plaintiff fails to mitigate the harm, the Defendant will not be held liable for damages that could have been avoided.
EQUITABLE REMEDIES:
INJUNCTIVE RELIEF
(Define & State the Rule)
Definition: Injunctive relief is the use of the court’s power to prohibit a person from engaging in an activity.
Rule: Where the legal remedy of money damages is inadequate, courts may grant injunctive relief. In making this determination, courts will balance the interests and hardships of the parties.
Note:
1) Money damages are inadequate if the Defendant’s action will cause irreparable harm to the Plaintiff.
2) Injunctive relief may be in the form of a temporary restraining order or permanent injunction.
3) Depending upon the severity of the harm, courts may grant injunctive relief in addition to damages.
