Torts (MBE) Flashcards
Intentional Torts: Transferred Intent + Torts That Apply
When the defendant intends to commit a tort against one person but instead, either: (i) commits a DIFFERENT TORT against that same person, (ii) commits the same tort as intended but against a DIFFERENT PERSON, or (iii) commits a DIFFERENT TORT against a DIFFERENT PERSON.
The following torts are the only ones that apply under this doctrine:
1) Assault
2) Battery
3) False Imprisonment
4) Trespass to Land
5) Trespass to chattels
Intentional Torts: Plaintiff’s Hypersensitivity
A plaintiff’s extreme sensitivity is disregarded in a lawsuit.
Intentional Torts: Lack of Capacity
Incapacity is NOT taken into account for an intentional tort, meaning children or mentally incompetent persons will be liable for their intentional torts.
Intentional Torts: Battery
Intentional harmful or offensive CONTACT with the PLAINTIFF’S PERSON
Intentional Torts: Battery - Offensive Contact + Implied Consent
Contact is offensive if it is NOT PERMITTED or NOT CONSENTED to
Consent will be implied for ORDINARY CONTACT of everyday life.
Intentional Torts: Battery - Plaintiff’s Person
Anything that is connected to or touching the plaintiff (e.g., purse or clothing)
Intentional Torts: Battery, Assault, and False Imprisonment - Required Damages
Even if no actual damages can be proven, a plaintiff can recover NOMINAL DAMAGES or PUNITIVE DAMAGES for malicious conduct. This is true for ASSAULT, BATTERY, and FALSE IMPRISONMENT
Intentional Torts: Assault
Intentionally creating a REASONABLE APPREHENSION of an IMMINENT HARMFUL OR OFFENSIVE CONTACT to the PLAINTIFF’S PERSON.
Intentional Torts: Battery - Instantaneous Contact
Contact does NOT need to be instantaneous, it could be caused on delay (e.g., spring trap)
Intentional Torts: Assault - Plaintiff’s Knowledge of Conduct
The plaintiff must have been AWARE OF THE THREAT from the defendant’s act, BUT need not be aware of the defendant’s identity.
Intentional Torts: Assault - Defendant’s Apparent Ability
If the defendant has the APPARENT ABILITY to commit a battery, this will be enough to cause a reasonable apprehension.
Intentional Torts: Assault - Effect of Words
Words alone are NOT ENOUGH to commit an assault, but they can be used to NEGATE a physical act (e.g., the defendant shakes their fist but says they are not going to hit the plaintiff)
Intentional Torts: False Imprisonment
A defendant’s act or omission that CONFINES or RESTRAINS the plaintiff to a BOUNDED AREA.
Intentional Torts: False Imprisonment - Sufficient Acts of Restraint
1) Physical barriers,
2) Physical force directed against plaintiff, immediate family, or personal property,
3) Direct or implied threats of force,
4) Failure to release with a legal duty to do so, or
5) Invalid use of legal authority
Intentional Torts: False Imprisonment - Insufficient Acts of Restraint
1) Moral pressure, or
2) Future threats
Intentional Torts: False Imprisonment - Time of Confinement
It is IRRELEVANT how short of a period the plaintiff is restrained for
Intentional Torts: False Imprisonment - Awareness of Confinement
The plaintiff MUST KNOW of the confinement or be HARMED by it
Intentional Torts: False Imprisonment - Reasonable Escape in Bounded Area
The area is NOT BOUNDED if there is a REASONABLE means of escape
Ways out that are not reasonable:
1) dangerous,
2) disgusting,
3) humiliating, or
4) hidden
Intentional Torts: Intentional Infliction of Emotional Distress
Defendant creates EXTREME and OUTRAGEOUS CONDUCT that results in SEVERE EMOTIONAL DISTRESS to the plaintiff
Intentional Torts: Intentional Infliction of Emotional Distress - Extreme or Outrageous Conduct
Conduct that transcends all bounds of decency. Conduct that is normal, but may become extreme if: (i) it is CONTINUOUS, (ii) committed by a CERTAIN DEFENDANT (i.e. common carriers or innkeepers), or (iii) direct toward a CERTAIN PLAINTIFF (i.e., children, elderly persons, pregnant women, or known sensitive adults)
Intentional Torts: Intentional Infliction of Emotional Distress - Requisite Intent
Defendant’s state of mind can be INTENTIONAL or RECKLESS.
Intentional Torts: Intentional Infliction of Emotional Distress - Damages Required + Proof of Physical Damages
Actual damages (i.e., sever emotional distress), are required
Proof of physical damages is generally NOT required
Intentional Torts: Intentional Infliction of Emotional Distress - Causation to Bystander
If the plaintiff is a bystander, he may recover by showing either the prima facie case of IIED or: (i) they were PRESENT when the injury occurred, (ii) the distress resulted in bodily harm to a CLOSE RELATIVE, and (iii) the defendant KNEW of these facts.
Intentional Torts: Trespass
Defendant intends a PHYSICAL INVASION of plaintiff’s REAL PROPERTY.
Intentional Torts: Trespass - Physical Invasion Requirement
The invasion can be by a PERSON or OBJECT, but NOT INTANGIBLE (e.g., odor or sound)
Intentional Torts: Trespass - Intent
The defendant need only intend TO ENTER the land, not the fact that the land is owned by another.
Intentional Torts: Trespass - Damages
Damages are NOT REQUIRED for plaintiff recovery.
Intentional Torts: Trespass to Chattels
Intentional INTERFERENCE with plaintiff’s RIGHT OF POSSESSION in a chattel (personal property).
Intentional Torts: Trespass to Chattels - Types of Interference
1) Damage item, or
2) Dispossession (depriving plaintiff of rightful possession)
Intentional Torts: Trespass to Chattels - Intent
intent to trespass IS NOT required, only intent to act of interference is required (meaning, defendant’s mistaken belief that they own the chattel is no defense)
Intentional Torts: Trespass to Chattels v. Conversion
Trespass to chattels results in a SMALL HARM
Conversion results in a BIG HARM (full market value of property)
Intentional Torts: Conversion
Intentional interference with plaintiff’s personal property so serious that warrants defendant pay property’s FULL VALUE.
Intentional Torts: Conversion - Acts of Conversion
Acts of conversion include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing or damaging the chattel.
Intentional Torts: Conversion - Intent
The only intent required is the intent to do the act that interferes. Mistake as to ownership is NO DEFENSE.
Intentional Torts: Conversion - Remedies
Plaintiff may recover DAMAGES (fair market value) or POSSESSION (replevin).
Defenses to Intentional Torts: Consent
The plaintiff’s consent to defendant’s conduct is a defense, UNLESS it is a criminal act.
Defenses to Intentional Torts: Consent - Capacity
Individuals without capacity are INCAPABLE of consent
Defenses to Intentional Torts: Consent - Express v. Implied + Exceptions
The plaintiff may expressly consent to defendant’s conduct by words or writing, or impliedly consent inferred from CUSTOM and USAGE, PLAINTIFF’S CONDUCT, or BY LAW (e.g., lifeguard saving a drowning patron)
Exceptions: (i) mistake will undo express consent IF DEFENDANT KNEW of and took advantage of the mistake, (ii) consent induced by FRAUD, and (iii) consent obtained by DURESS.
Defenses to Intentional Torts: Consent - Scope of Consent
Defendant may exceed the scope of consent by committing a MORE INTRUSIVE invasion or by invading a different interest than the one the plaintiff referenced.
Defenses to Intentional Torts: Privileges - Self-Defense
A personally who REASONABLY BELIEVES they are being attacked may use such force as is REASONABLY NECESSARY to protect against injury.
Defenses to Intentional Torts: Privileges - Self-Defense - Duty to Retreat (Majority v. Modern Rule)
Majority Rule - No duty to retreat
Modern Rule - imposes a duty to retreat before using DEADLY FORCE, unless actor is in their home.
Defenses to Intentional Torts: Privileges - Self-Defense - Mistake
A reasonable mistake as to the existence of the danger is ALLOWED.
Defenses to Intentional Torts: Privileges - Self-Defense - Amount of Force
One may use only the force that REASONABLY APPEARS to be necessary to prevent the harm.
Defenses to Intentional Torts: Privileges - Defense of Others
One may use force to defend another when they REASONABLY BELIEVE that the other person could have used force to defend themselves.
Defenses to Intentional Torts: Privileges - Defense of Property
One may use REASONABLE FORCE to prevent the commission of a tort against their real or personal property, but force causing DEATH or SERIOUS BODILY HARM IS NEVER ALLOWED.
Defenses to Intentional Torts: Privileges - Defense of Property - Shopkeeper’s Privilege
A shopkeeper has a privilege to detain a suspected shoplifter for investigation if the following requirements are satisfied: (i) there must be a REASONABLE BELIEF as to the fact of theft, (ii) the detention must be conducted in a REASONABLE MANNER and nondeadly force must be used, and (iii) the detention must be only for a REASONABLE PERIOD OF TIME.
Defenses to Intentional Torts: Privileges - Defense of Property - Reentry onto Land
One could force reentry onto land when an intruder came into possession tortuously
Defenses to Intentional Torts: Privileges - Defense of Property - Recapture of Chattels
Similar to reentry onto land, one may use peaceful means to recover chattel. Reasonable force may be used to recapture chattel when in HOT PURSUIT.
Defenses to Intentional Torts: Privileges - Necessity
A person may interfere with the real or personal property of another when it is NECESSARY in an emergency to AVOID SUBSTANTIAL INJURY from a NATURAL FORCE.
Defenses to Intentional Torts: Privileges - Necessity - Public v. Private
Public - a natural emergency that threatens a large group of people (e.g., town or city), where the defendant does not have to pay for any damages to property
Private - a natural emergency that only impacts a few people (e.g., household), however the defendant DOES have to pay COMPENSATORY DAMAGES and can REMAIN ON THE PROPERTY as long as emergency continues
Negligence Elements
1) Duty
2) Breach
3) Causation (proximate and actual)
4) Damages
Negligence: Duty - To Whom Is A Duty Owed?
A duty of care is owed only to FORESEEABLE PLAINTIFFS within the zone of danger
Negligence: Duty - Rescuers
A rescuer is a FORESEEABLE plaintiff when the defendant negligently put themselves or others in peril
Negligence: Duty - Firefighter’s Rule
Firefighters and police officers are barred from recovering for injuries caused by the inherent risks of their jobs.
Negligence: Duty - Prenatal Injury
A duty of care is owed to a VIABLE FETUS, and parents may recover for WRONGFUL BIRTH in cases for failure to diagnose defect
Negligence: Duty - Intended Beneficiaries of Economic Transactions
A third party for whose economic benefit a legal or business transaction was made MAY BE A FORESEEABLE PLAINTIFF.
Negligence: Duty - Basic Standard of Care
All persons owe a duty to behave as a REASONABLY PRUDENT PERSON, measured as an OBJECTIVE STANDARD.
Negligence: Duty - Basic Standard of Care - Superior Skill or Knowledge
A defendant who has superior knowledge or skill is expected to exercise that to other people (heightened duty)
Negligence: Duty - Basic Standard of Care - Exception for Physical Characteristics
One who has different physical characteristics (e.g., blind) should act as a reasonably prudent person WITH THAT CHARACTERISTIC.
Special Negligence Duties: Children + Children Under 5 + Adult Activities
Children are held to the standard of similar AGE, EXPERIENCE, and INTELLIGENCE (subjective test)
A child under 5 years old is usually WITHOUT THE CAPACITY to be negligent.
Children engaged in potentially dangerous adult activities (e.g., operating a motorized vehicle) may be required to conform to an “adult” standard of care
Special Negligence Duties: Professionals + Doctors
A professional is required to possess the knowledge and skill of an AVERAGE MEMBER OF THE PROFESSION
Doctors generally are held to the NATIONAL STANDARD of care.
Special Negligence Duties: Doctors - Risk of Treatment
A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent. This duty is breached if an undisclosed risk was serious enough that a reasonable person WOULD HAVE WITHHELD CONSENT on learning of the risk.
Special Negligence Duties: Possessor of Land - Unknown Trespasser
NO DUTY is owed to an undiscovered trepasser
Special Negligence Duties: Possessor of Land - Known Trespasser
Land possessor must warn or make safe any conditions that are: (i) ARTIFICIAL, (ii) HIGHLY DANGEROUS, (iii) CONCEALED, and (iv) KNOWN to the land possessor in advance (known manmade death traps)
Special Negligence Duties: Possessor of Land - Licensees (Define Licensee and Duty) + Duty to Inspect or Repair
A licensee is one who enters onto the land with the possessor’s permission for their OWN PURPOSE or BUSINESS, but without financial benefit to possessor (i.e., social guests).
For licensees, the land possessor has a duty to warn of or make safe HAZARDOUS CONDITIONS that are: (i) CONCEALED, and (ii) KNOWN TO THE POSSESSOR IN ADVANCE (all known traps)
The landowner must exercise reasonable care in the conduct of “active operations,” there is NO DUTY to inspect or repair.
Special Negligence Duties: Possessor of Land - Invitees (Define Invitees and Duty)
Invitees enter onto land in response to an INVITATION by the possessor of land, unless invitee exceeds scope of the invitation.
The landowner owes a duty to invitees regarding HAZARDOUS CONDITIONS that are: (i) CONCEALED, and (ii) KNOWN to the land owner in advance or COULD HAVE BEEN DISCOVERED by a reasonable inspection. (all reasonably knowable traps)
Special Negligence Duties: Possessor of Land - Attractive Nuisance + Elements
A landowner has the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by DANGEROUS ARTIFICIAL CONDITIONS.
To establish the doctrine’s applicability, the plaintiff must show:
1) a DANGEROUS CONDITION on the land that the owner is or should be aware of,
2) the owner KNOWS OR SHOULD KNOW that children might trespass on the land,
3) the condition is LIKELY TO CAUSE INJURY, and
4) the EXPENSE of remedying the situation IS SLIGHT compared with the magnitude of the risk
Special Negligence Duties: Possessor of Land - Users of Recreational Land + Exception
A landowner who permits the GENERAL PUBLIC to use their land for RECREATIONAL PURPOSES with NO FEE is NOT LIABLE for injuries suffered by a recreational user, UNLESS the landowner WILLFULLY and MALICIOUSLY failed to guard against or warn of a dangerous condition or activity.
Special Negligence Duties: Possessor of Land - Duty to Those Off Premises + Duty to Carrying On Activities
There is generally NO DUTY to someone OFF the premises from NATURAL CONDITIONS, EXCEPT FOR an UNREASONABLY DANGEROUS ARTIFICIAL CONDITION.
One must carry on activities to AVOID UNREASONABLE risk of harm to others of the premises.
Special Negligence Duties: Possessor of Land - How to Satisfy Premises Liability on Duty
Either: (1) Eliminate the hazardous condition (repair, remove, or replace), or (2) WARN about hazardous condition
Special Negligence Duties: Possessor of Land - Duties of Lessor and Lessee of Realty
The lessee has a general duty to maintain the premises
The lessor must warn of existing defects of which they are aware or have reason to know. If the lessor covenants to repair, they are liable for UNREASONABLY DANGEROUS CONDITION.
Special Negligence Duties: Possessor of Land - Duties of Vendor of Realty
A vendor MUST DISCLOSE to the vendee concealed, unreasonably dangerous conditions of which the vendor knows or has reason to know and which the vendor knows the vendee is NO LIKELY TO DISCOVER on a reasonable inspection.
Negligence Per Se Requirements
A criminal statute may replace duty of care if:
1) plaintiff is within the PROTECTED CLASS, and
2) the statute was designed to PREVENT THE HARM SUFFERED by the plaintiff
Negligence Per Se: Excuse for Violation
Violation of some statutes MAY be excused where compliance would CAUSE MORE DANGER than violation OR where compliance was BEYOND DEFENDANT’S CONTROL (compliance was impossible).
Negligence Per Se: Effect of Violation v. Effect of Compliance
A statutory violation of negligence per se establishes the first two requirements in the prima facie case (presumption of duty and breach of duty)
However, compliance with the statute WILL NOT necessarily establish due care.
Special Duties: Affirmative Duty to Act
Generally, one DOES NOT have a legal duty to act (no duty to rescue)
Special Duties: Affirmative Duty to Act - Special Relationship Between Parties Exception
A special relationship MAY create a duty to act (e.g., parent-child, doctor-patient)
Certain jobs as COMMON CARRIERS, INNKEEPERS, or SHOPKEEPERS, or others that gather profit for care of patrons are required to care for customers
Special Duties: Affirmative Duty to Act - Peril Due to Own Conduct Exception
One has a duty to assist someone they have negligently or innocently placed in peril.
Special Duties: Affirmative Duty to Act - Assumption of Duty by Acting
One may assume a duty to act by taking responsibility to assist someone
Special Duties: Preventing Harm from Third Persons
Generally, no duty to prevent a third person from injuring another. HOWEVER, one may have a duty imposed if he has the actual ABILITY and AUTHORITY to control a person’s actions, and knows the person is likely to commit acts that would require exercise of this control.
Special Duties: Good Samaritan Statutes + Scenarios Silent on Good Samaritan Statutes
Good Samaritan statutes exempt rescuers (e.g. doctors, nurses, etc.) from liability for ORDINARY negligence, BUT NOT gross negligence.
If an issue arises that is silent as to Good Samaritan statutes, the person will be liable for negligence of a rescue.
Negligent Infliction of Emotional Distress - Near Miss Case
In addition to the underlying negligence, the plaintiff must show:
1) the plaintiff was within the “ZONE OF DANGER,” and
2) the plaintiff must suffer PHYSICAL SYMPTOMS from the distress
Negligent Infliction of Emotional Distress - Bystander Case + Physical Symptoms
A bystander outside the “zone of danger” who sees the defendant negligently injured can recover damages for their own distress if:
1) the plaintiff and the person injured by the defendant are CLOSELY RELATED (e.g., child or spouse), and
2) the plaintiff was PRESENT at the scene and PERSONALLY PERCEIVED the event
Most states have dropped the requirement that physical symptoms be shown.
Negligent Infliction of Emotional Distress - Business Relationship Case
Plaintiff can recover if HIGHLY FORESEEABLE that careless performance by the defendant will produce emotional distress (e.g., doctor’s misdiagnosis of terminal illness)
Proving Breach
Plaintiff must show concrete evidence of breach of duty
Breach in Negligence: Custom or Usage
Evidence of the custom or usage of others may be used to establish how a person SHOULD HAVE acted under certain circumstances
Breach in Negligence: Negligence Per Se
Violation of a statute may show breach of duty if the plaintiff was in the class of persons the statute sought to protect and the statute was meant to prevent the type of harm that occurred.
Breach in Negligence: Res Ipsa Loquitur
Where the defendant does not have information about breach, plaintiff may prove it by showing:
1) the accident causing the injury would not occur without a negligent act, and
2) the negligence is probably attributable to the defendant (e.g., showing EXCLUSIVE CONTROL by defendant. `
Breach in Negligence: Res Ipsa Loquitur - Effect + Directed Verdict (Plaintiff’s Motion v. Defendant’s Motion)
When res ipsa loquitur is established, plaintiff has made a prima facie case and NO DIRECTED VERDICT can be given TO DEFENDANT
The plaintiff’s motion for a directed verdict should ALWAYS BE DENIED, UNLESS plaintiff has established NEGLIGENCE PER SE and there are no issue of proximate cause.
Causation in Negligence: Factual Causation (But For Test) + Defendant’s Rebuttal
Injury would not have occurred but for defendants act or omission
Defendant’s rebuttal will begin with “even if,”… the our actions were different the result would have remained.
Causation in Negligence: Factual Causation - Substantial Factor Test + Liability
Where multiple sufficient causes to injury exist, defendant’s conduct will be a factual causation if it is a SUBSTANTIAL FACTOR in causing the injury.
Defendants would be found JOINTLY AND SEVERALLY liable and Plaintiff can recover full amount of damages from either defendant
Causation in Negligence: Factual Causation - Unascertainable Causes
Where more than one act occurs, but plaintiff cannot differentiate which act caused injury, the BURDEN SHIFTS to defendants to prove liability.
Causation in Negligence: Proximate Causation + Factors
A defendant generally is liable for a harmful result that was foreseeable from the defendant’s actions
Foreseeability factors: 1) passage of time, 2) geographic distance, and 3) prior occurance
Causation in Negligence: Proximate Causation - Foreseeable Intervening Forces + Third Party Crime
Defendant can be found liable when their negligence caused a foreseeable normal REACTION from an INTERVENING FORCE that would harm the plaintiff.
Examples: medical malpractice, negligence of rescuers
Third Party Crime - If defendant’s negligence increased risk of harm such as crimes or negligence of third persons, defendant’s conduct may be foreseeable.
Causation in Negligence: Proximate Causation - Superseding Forces
Intervening forces that produce unforeseeable results NOT WITHIN the increased risk created by defendant’s negligence break the causal connection and relief defendant of liability.
Damages in Negligence: Eggshell Skull Doctrine
Once the plaintiff has established all other elements of claim, plaintiff receives ALL damages suffered even if surprisingly great in scope (i.e., you take your plaintiff as you find him)
Damages in Negligence: Property Damage
The measure of damage is the reasonable cost of repair or fair market value if completely destroyed
Damages in Negligence: When Punitive Damages are Recoverable
Punitive damages generally are not available in negligence cases, unless defendant’s conduct is WANTON AND WILLFUL, RECKLESS, or MALICIOUS
Damages in Negligence: Contributory Negligence
If plaintiff contributes to his own injuries, he would be barred from recovery from defendant.
Damages in Negligence: Contributory Negligence - Last Clear Chance
Permits plaintiff to recover despite their contributory negligence if the person with the LAST CLEAR CHANCE to avoid an accident fails to do so.
Damages in Negligence: Assumption of Risk
Plaintiff may be denied recovery if they assumed the risk of any damage, plaintiff must have::
(i) KNOWN the risk, and
(ii) VOLUNTARILY proceeded in the face of the risk
Damages in Negligence: Comparative Negligence (Partial v. Pure) + Default
Damages are reduced according to the percentage plaintiff is at fault
Partial Comparative Negligence - Plaintiff can recover so long as defendant is MORE negligent than defendant (51%)
Pure Comparative Negligence - Plaintiff can recover ANY AMOUNT defendant was found negligent (as low as 1%) (this is the DEFAULT rule)
Strict Liability: Domesticated Animals + Trespassers
An owner is not strictly liable for injuries caused by domesticated animals, UNLESS the owner has KNOWLEDGE the animal has unique VICIOUS PROPENSITIES
An owner will NOT be liable to trespassers, even if knowledge of vicious propensities
Strict Liability: Trespassing Animals
An owner is strictly liable for the damage caused by a trespassing animal
Strict Liability: Wild Animals
An owner of a wild animal is strictly liable to licensees and invitees for injuries caused by wild animals
Strict Liability: Abnormally Dangerous Activities Requirements + Foreseeability
1) The activity CANNOT BE MADE SAFE even through exercising ordinary care (e.g., explosives, toxic chemicals, etc.)
2) The activity is UNCOMMON where it is conducted
Foreseeability - The defendant’s liability ONLY EXTENDS to foreseeable plaintiffs
Strict Liability: Products Liability - Theories of Liability
1) Intent
2) Negligence
3) Implied Warranties of Merchantability and Fitness for a Particular Purpose
4) Representation
5) Strict Liability
Strict Liability: Products Liability - Strict Liability Elements
To find strict liability, the plaintiff must show:
1) The defendant is a MERCHANT,
2) The product is DEFECTIVE,
3) The product was NOT SUBSTANTIALLY ALTERED, and
4) Plaintiff was making a FORESEEABLE USE of the product
Strict Liability: Products Liability - Merchant Requirement (Commercial Lessor v. Service Provider) + Distribution Chain
Commercial lessors (renting products, such as rental car company) IS a merchant for strict liability purposes. However, a service provider (e.g., doctor) is NOT a merchant.
The ENTIRE DISTRIBUTION chain can be found liable (distributor, wholesaler, manufacturer, etc.)
Strict Liability: Products Liability - Defective Product Requirement - Types of Defect, Description, and Proving Liability + Government Safety Standards
1) Manufacturing defect - product departs from its intended design (plaintiff must show product failed to perform as safely as an ordinary consumer would expect)
2) Design defect - When all products are the same, but have dangerous propensities (plaintiff must show product could have been made safer by practical and feasible methods)
A products noncompliance with government safety standard establishes it is defective (but not vice versa)
3) Information defect - Failure to give adequate instructions or warnings as to the risk involved in using the product that may not be apparent (plaintiff must show warning was not prominent, comprehensible, or showing information about mitigating risk)
Strict Liability: Products Liability - Leaving Defendant’s Control Requirement - Presumption
If the product moved through normal channels of distribution, it will be inferred that the product was not altered and that the defect existed when the product left the defendant’s control.
Strict Liability: Products Liability - Foreseeable Use Requirement - Misuse
Foreseeable DOES NOT MEAN intended or appropriate, many products can be misused in ways that could be foreseeable (e.g., standing on chair)
Strict Liability: Products Liability - Disclaimers
Disclaimers are IRRELEVANT in strict liability cases if personal injury or property damages occur.
Nuisance: Private
A SUBSTANTIAL, UNREASONABLE INTERFERENCE with another private individual’s USE OR ENJOYMENT of property that the other individual actually possess or has a right of immediate possession.
Nuisance: Private - Substantial Interference Standard
An interference is NOT substantial if it is merely the result of the plaintiff’s HYPERSENSITIVITY or specialized use of their property.
Nuisance: Public + Recovery by Private Party
An act that UNREASONABLY INTERFERES with the health, safety, or property rights OF THE COMMUNITY (e.g., using building for prostitution).
A private party may recover if they suffered unique damages not suffered by the public at large.
Nuisance: Remedies
1) Injunction
2) Abatement by Self-Help - available after notifying defendant and they refuse to act
Vicarious Liability
Where a tortfeasor commits a tortious act and another person will be liable
Vicarious Liability: Employer-Employee + Frolic and Detour
An employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within the SCOPE OF EMPLOYMENT
An employee making a MINOR deviation from their employer’s business is acting WITHIN THEIR SCOPE OF EMPLOYMENT, but if substantial deviation in time or geographic area, the employer is NOT LIABLE.
Vicarious Liability: Employer-Employee - Liability for Intentional Torts + Exceptions
Intentional torts from employees is NOT within the scope of employment
Exceptions:
1) Employee is furthering the business of the employer (e.g., removing people from store)
2) force is AUTHORIZED (e.g., bouncer)
3) the situation is likely to arise from the employment (e.g., repo man)
Vicarious Liability: Independent Contractor
The hiring party will NOT be vicariously liable for the tortious acts of an independent contractor, UNLESS working on the premises and hurts a customer (e.g., keeping premises safe)
Vicarious Liability: Partner and Joint Ventures
Each member of a partnership is vicariously liable for the tortious conduct of another member committed in the SCOPE and COURSE of the partnership
Vicarious Liability: Automobile Owner General Rule
Generally, an automobile owner is NOT vicariously liable for the tortious acts of another person driving their automobile
Vicarious Liability: Automobile Owner General Rule - Family Car Doctrine
The owner is liable for tortious conduct of IMMEDIATE family or household members who are driving the the owner’s express or implied permission.
Vicarious Liability: Tavernkeepers (Common Law v. Modern Law)
Common law - NO liability imposed on vendors of intoxicating beverages for injuries resulting from the patron’s intoxication
Modern law (Dramshop Acts) - Any third person injured from an intoxicated person may sue the tavernkeeper if found ordinarily negligent (not vicarious liability)
Multiple Defendants: Joint and Several Liability
Under traditional common law, when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor can be held jointly and severally liable, meaning any one can be responsible for ALL DAMAGES.
Multiple Defendants: Contribution
Contribution allows a defendant under joint and several liability to claim against other jointly liable parties for the excess.
Multiple Defendants: Indemnification
Involves shifting the ENTIRE LOSS between or among tortfeasors (i.e., vicarious liability or strict products liability)
Loss of Consortium: Between Spouses
Either spouse may bring an action for indirect interference with consortium and services caused by the defendant’s intentional or negligent tortious conduct against the other spouse
Loss of Consortium: Parent-Child + Injury to Parents
A parent may maintain an action for loss of a child’s services and consortium as a result of the defendant’s tortious conduct.
However, a child HAS NO ACTION against one who tortiously injures their parent.
Survival Acts
Allows one’s cause of action to survive the death of one or more of the parties for personal injuries
Wrongful Death
Grants recovery for pecuniary injury resulting to the spouse and next of kin, recovery is allowed only to the extent the deceased could have recovered.
Defamation Elements
The elements of defamation are:
1) A defamatory statement that SPECIFICALLY IDENTIFIES the plaintiff,
2) PUBLISHED to a third party,
3) DAMAGE to the plaintiff’s reputation,
4) FALSITY of the defamatory language, and
5) FAULT on part of the defendant.
Defamation: Defamatory Statement
A defamatory statement is one tending to adversely affect one’s reputation
Defamation: Deceased Persons
Any living person may be defamed, but defamation of a deceased person IS NOT ACTIONABLE
Defamation: Statement Identifying Plaintiff - Colloquium
Extrinsic evidence may be offered to establish that the statement refers to the plaintiff.
Defamation: Statement Identifying Plaintiff - Group Defamation (Small v. Large Group)
If the defamatory statement refers to ALL members of a SMALL GROUP, everyone has a claim, if a large group is referenced NOBODY has a claim.
Defamation: Publication Requirement + Statement to Plaintiff
Publication means COMMUNICATION of the defamation to a THIRD PERSON who understands it, made either intentionally or negligently.
A statement ONLY TO THE PLAINTIFF cannot be publication, thus no defamation.
Defamation: Publication Requirement - Who May Be Liable? + Internet Service Providers
Primary publishers may be liable (e.g., newspapers, TV, etc.) to the same extent as the author or speaker.
An internet service provider IS NOT treated as a publisher when a user posts defamatory content.
Defamation: Damage to Reputation Requirement (Libel v. Slander)
Libel - defamation embodied in a PERMANENT FORM (e.g., writing, printed publication, or radio). These are PRESUMED to have damages under the law.
Slander - Spoken defamation. Plaintiff must prove SPECIAL DAMAGES, UNLESS it falls within the slander per se categories.
Defamation: Damage to Reputation Requirement - Defamation Per Se
1) Adversely reflect on plaintiff’s BUSINESS or PROFESSION,
2) State that plaintiff has committed a SERIOUS CRIME involving moral turpitude,
3) SERIOUS SEXUAL MISCONDUCT, and
4) LOATHSOME DISEASE
Defamation: Falsity Requirement - Public Official or Figure + Private Persons
Plaintiff must prove falsity.
1) Public Official or Figure - Actual malice must be proven (KNOWLEDGE statement was false or RECKLESS DISREGARD as to whether it was false)
2) Private Persons - Must prove negligence if matter of PUBLIC CONCERN.
Defamation: Defenses - Consent
Consent is a complete defense
Defamation: Defenses - Truth
Defendant may prove truth as a complete defense
Defamation: Defenses - Absolute Privilege
The defendant may be protected if:
1) communications BETWEEN SPOUSES,
2) Remarks made during JUDICIAL PROCEEDINGS, by LEGISLATORS during proceedings, or federal EXECUTIVE OFFICIALS in compelled broadcasts
Defamation: Defenses - Qualified Privilege
Arises only when there is a PUBLIC INTEREST IN ENCOURAGING CANDOR (references and recommendations), and can be lost through abuse.
Invasion of Right to Privacy: Types of Wrong
1) APPROPRIATION of the plaintiff’s picture or name,
2) INTRUSION of plaintiff’s privacy
3) Publication of facts placing plaintiff in FALSE LIGHT, or
4) PUBLIC DISCLOSURE OR PRIVATE FACTS
Invasion of Right to Privacy: Appropriation of Plaintiff’s Picture or Name + Newsworthiness
Must show UNAUTHORIZED USE of the plaintiff’s picture or name for the defendant’s COMMERCIAL ADVANTAGE.
A newsworthy application of name or image is an EXCEPTION (e.g., picture in newspaper)
Invasion of Right to Privacy: Intrusion on Plaintiff’s Affairs or Seclusion
Forbids acts such as EAVESDROPPING, SPYING, or INTERCEPTION OF PHONE CALL, that is PRIVATE and HIGHLY OFFESNIVE to a reasonable person.
Invasion of Right to Privacy: Publication of Facts Placing Plaintiff in False Light + Matters of Public Interest
Where one attributes to the plaintiff views they DO NOT HOLD or actions they DID NOT TAKE, and it is HIGHLY OFFENSIVE to a reasonable person.
If a matter of public interest, ACTUAL MALICE must be proven.
Invasion of Right to Privacy: Public Disclosure of Private Facts About Plaintiff
Public disclosure of PRIVATE INFORMATION about the plaintiff that is HIGHLY OFFENSIVE to a reasonable person, EVEN IF TRUE.
Misrepresentation: Intentional Misrepresentation (Fraud, Deceit)
To establish a prima facie case for intentional misrepresentation requires:
1) MISREPRESENTATION of a material past or present fact,
2) SCIENTER (defendant knew or believed it was false)
3) INTENT to induce the plaintiff to act in reliance,
4) CAUSATION (actual reliance)
5) JUSTIFIABLE RELIANCE
6) DAMAGES
Misrepresentation: Duty to Disclose + Exceptions
There is NO GENERAL DUTY to disclose a material fact, UNLESS defendant: (i) stands in a FIDUCIARY RELATIONSHIP, (ii) selling REAL PROPERTY, or (iii) their communications deceive the plaintiff
Misrepresentation: Third Party Reliance
If a third party relies on the defendant’s misrepresentation, the defendant will be liable if they could reasonably foresee that the third party would rely.
Misrepresentation: Negligent Misrepresentation Elements + Typical Setting This Comes In
1) MISREPRESENTATION by defendant in a business or professional capacity,
2) BREACH,
3) CAUSATION
4) JUSTIFIABLE RELIANCE,
5) DAMAGES
Generally, this action is confined to misrepresentations made in a COMMERCIAL SETTING
Interference with Business Relations Elements
To establish a prima facie case for interference with business relations, the following elements must be proved:
1) Existence of a VALID CONTRACTUAL RELATIONSHIP between the plaintiff and third party OR VALID BUSINESS EXPECTANCY
2) Defendant’s KNOWLEDGE of the relationship,
3) INTENTIONAL INTERFERENCE, and
4) DAMAGES
Interference with Business Relations - Privilege + Common Examples
The defendant’s conduct may be privileged if it is a proper attempt to obtain business for itself or protect its interests
Common examples: (i) defendant interferes with POTENTIAL business, (ii) uses COMMERCIALLY ACCEPTABLE MEANS, (iii) responding to THIRD PARTY’S REQUEST
