Torts

[1] Can the plaintiff prove the elements of the prima facie case? [2] Are there any good affirmative defenses?

No. Not unless Δ knew about them in advance.

Everyone

It was her purpose to bring about the consequence or if she knows to a degree of substantial certainty.

[1] victim to victim; and [2] tort to tort

[1] Harmful or offensive contact [2] with the Π’s person

Unpermitted

Anything physically connected with the plaintiff

[1] Apprehension [2] of an immediate contact

[1] It must be reasonable apprehension. [2] Do not confuse apprehension with fear or intimidation. [3] Apparent ability creates Reasonable Apprehension

[1] Words alone are not enough. [2] Words coupled with conduct can be enough. [3] Sometimes “words coupled with conduct” undo the conduct and any reasonable apprehension. Tip: If battery and assault both work on the same fact pattern, choose battery.

[1] Battery; [2] Assault; [3] False Imprisonment; [5] Intentional Infliction of Emotional Distress; [6] Intentional Torts to Property

[1] Assault, [2] Battery, [3] False Imprisonment, [4] Trespass to Land, [5] Trespass to Chattels

Use as a fallback position to use when other tort theories aren’t working.

[1] Outrageous Conduct, [2] Damages (severe emotional distress)

[1] Continuous conduct [2] toward a certain type of Π (children, old people, pregnant ladies) [3] by a certain type of Δ (common carriers or innkeepers)

Recklessness can suffice. Transferred intent is normally not available.

[1] Trespass to Land, [2] Trespass to Chattels, [3] Conversion

[1] Act of Physical Invasion [2] of Land

[1] There is no need to show knowledge of crossing a property line. [2] Propelling a physical object onto property will suffice.

It includes the airspace above and the subsurface below so long as it is at a distance where landowner could make reasonable use of that space.

[1] Active invasion [2] to personal property

[1] If there is some damage, choose trespass to chattels. If there is a lot of damage, choose conversion. [2] For conversion, “damage” can include serious interference with possessory rights.

[1] Trespass to Chattel – An interference with Π’s right of possession of chattel (either intermeddling or dispossession); [2] Conversion – An interference with Π’s right of possession so serious as to warrant that Δ pay the chattel’s full value

[1] Trespass to Chattel – Intent to do the act that brings about the interference; [2] Conversion – Intent to do the act that brings about the interference

[1] Trespass to Chattel – Recovery of actual damages from harm to chattel or loss of use (if dispossession, damages based on rental value; [2] Conversion – Damage award of fair market value of chattel at time of conversion (i.e., forced sale of chattel). May instead recover chattel (replevin)

[1] Consent, [2] Self Defense, [3] Defense of Others, [4] Defense of Property, [5] Necessity, [6] Discipline,

Yes

[1] Children, [2] Mentally impaired, [3] Consent given on basis of coercion or force, [4] Fraud or mistake

Express & Implied

Look for facts relating to mistake, fraud, or coercion

Custom and usage or through a Π’s own conduct.

[1] Homer tapped in Flag football – Δ has defense of implied consent; [2] Homer off the boat from Belgium – Δ has defense of implied consent; [3] Homer kicked in nuts – Δ exceeded the boundaries of his privilege

A person is justified in using reasonable force to prevent what she reasonably believes to be an imminent threat of force against her.

Self-defense requires that a reasonable person in the Δ’s position would have believed that he was in danger.

A person may use only the degree of force reasonably necessary to avoid the threatened harm.

The use of deadly force is reasonable only when the defender reasonably believes that she is facing the threat of deadly force himself.

You should retreat before you use deadly force unless you are in your home.

Yes. A reasonable defense as to the existence of the danger is allowed.

A person may defend another person in the same manner and under the same conditions as the person attacked would be entitled to defend himself.

Yes. A defender is not liable if he reasonably believed that another person was endangered.

A person may use reasonable force to defend his real or personal property. However, deadly force may never be used to protect property alone.

Only use reasonable force to re-capture property when you in hot pursuit of the person who took it.

Can detain shoplifter in reasonable manner for reasonable time.

Necessity is used only in conjunction with intentional torts to property (Trespass to land, property, or conversion)

[1] Public Necessity – an unlimited and unqualified privilege to protect a lot of people. [2] Private Necessity – a qualified privilege to protect a limited number of people

A parent or teacher may use reasonable force in disciplining children.

[1] Defamatory Statement [2] of or concerning Π [3] published to third party [4] resulting in damages to Π’s reputation

A statement that injures the Π’s reputation

At CL, truth is a defense to a defamation claim. Δ bears burden of proving truth.

The Δ’s statement must reasonably be understood to refer to the Π.

[1] The statement must be communicated to a third person in an understandable fashion. [2] The publication must be at least negligent, if not intentional.

When defamation is spoken (slander), the Π must prove special damages. When defamation is written (libel), juries may presume damages. Exception – A Π can recover presumed damages in cases of slander per se.

[1] Statement that impugns trade or profession; [2] Accusing someone of committing a crime of moral turpitude; [3] Statement that suggest someone has a loathsome disease; [4] Saying a woman is unchaste

[1] Truth; [2] Absolute privilege; [3] Qualified Privilege

Δ bears burden of proving truth

[1] Statement made in judicial proceeding; [2] Statement made in legislative settings (or executives); [3] statements between spouses

A privilege given to serve the interest of the person receiving the info. (prof writing reference letter). It can be lost if the statement is not within the scope of the privilege or if it is shown that the speaker acted with malice. Δ has burden of proof.

1st Am protects speech on matters of public concern. In cases involving such speech, the S.C. has added two elements to the Π’s prima facie case. [1] Falsity – Π must prove that statement was false. [2] Fault – Π must prove some level of fault.

[1] Fault Required – Actual malice (knowledge of falsity or reckless disregard as to truth or falsity); [2] Damages Recoverable – Presumed damages under CL rules (and punitive damages where appropriate)

[1] Fault Required – At least negligence as to statement’s truth of falsity; [2] Damages Recoverable – Damages only for proved “actual injury” (If Π proves actual malice, presumed and punitive damages may be available)

[1] Fault Required – No fault as to truth or falsity need be proved; [2] Damages Recoverable – Presumed Damages under CL rules (and punitive damages where appropriate)

Knowledge of Falsity and Reckless Disregard as to truth or falsity.

[1] Public Official – government officials; [2] Public Figure – tremendous influence or fame

[1] Public Persons – a public Π must prove actual malice. [2] Private Persons – a private Π must prove fault amounting to negligence

In matters of public concern, all Πs must prove actual malice to recover presumed or punitive damages.

Use of the Π’s name or picture for commercial advantage without permission.

Π’s likeness must be used for advertising, promotional, marketing, or labeling purposes

Interference with a Π’s seclusion in a way that would be objectionable to an average person

Π must be in a place where she has an expectation of privacy

Look for intentional infliction of emotional distress

The widespread dissemination of information that is in some way inaccurate and that would be objectionable to an average person.

The widespread dissemination of factually accurate information that would normally be confidential, and the disclosure of which would be objectionable to an average person.

[1] Consent; [2] Absolute & Qualified Privileges (Limitation – these only apply to False Light and Public Disclosure of Private Fact claims)

[1] Affirmative Misrepresentation, [2] Fault, [3] Intention to Induce Reliance, [4] Justifiable Reliance, [5] Damages

Silence will not suffice.

Scienter (fault) must be shown. Fraud is an intentional cause of action.

The statement must be material

It is normally justifiable to rely on the opinion of one who has superior skill or knowledge in the subject matter of the transaction.

Fraud is a “no harm, no foul” cause of action.

Negligent Misrep is confined to misreps made in commercial setting, and liability will attach only if reliance by the particular Π could be contemplated

[1] Inducing Breach of K; [2] Interferences with Contractual Relations; [3] Interference with Prospective Economic Advantage

An intentional action that causes a third person to breach an existing contract w/ Π.

A Δ may be liable if interference with a Π’s contractual relations makes performance more difficult, even if the interference does not actually cause a breach.

A Δ may be liable for interfering with a Π’s expectation of economic benefit from third persons, even in the absence of an existing contract.

[1] Malicious Prosecution; [2] Abuse of Process

[1] Institution of criminal (and often Civil) proceedings against Π; [2] Termination in Π’s favor; [3] absence of probable cause for prior proceedings; [4] improper purpose; [5] damages.

[1] Wrongful use of process for an ulterior purpose

Take some precautions to dampen those “risk rays!”

[1] You owe a duty to all people who are foreseeable victims of your failure to take precautions; [2] Plaintiffs who are foreseeable as a matter of law

Put yourself in the shoes of conductor. Ask him “Who would get hurt?” If you asked him about Mrs. Palsgraff, he’d say it’s ludicrous she could be hurt

[1] Rescuers; [2] Viable fetuses

The Pointdexter Rule. You must exercise the amount of care that would be taken by a reasonably prudent person under the same or similar circumstances. Harsh, rigid, objective test. Stupidity or carelessness doesn’t matter.

[1] Children; [2] Professionals; [3] Owners and Occupiers of Land

A child must exercise the degree of care that a reasonable child of like age, intelligence, and experience would exercise. Age 4 is the minimum cut-off.

The Rule of Sevens. [1] Children under the age of 7 – no negligence liability. [2] Children from age 7 to age 13 – presume no negligence, but is rebuttable. [3] Children age 14+ - presume child is capable of negligence but it’s rebuttable

A child engaged in an adult activity is held to the adult standard

A professional is required to possess and exercise the knowledge and skill of an ordinary member of that profession in good standing.

[1] Medical Malpractice requires informed consent. [2] Legal Malpractice – Π must prove that lawyer’s acts was the causation of her damages

[1] Source of the injury – Did the injury result from the conduct of activity or did the injury result from an encounter with a static condition? [2] Status of Π – is he (a) Undiscovered Trespasser; (b) Discovered Trespasser; (c) Licensee; (d) Invitee?

A social guest. You Like a Licensee.

Anyone who comes onto land held open to the public at large.

Activity – No duty; Static Condition – No duty

Activity – Reasonable Care; Static Condition – Man-Made Deathtraps (artificial conditions known to the landowner involving risk of death or serious bodily harm)

Activity – Reasonable Care; Static Condition – Concealed and known to occupier

Activity – Reasonable Care; Static Condition – Concealed and you knew about it or could have learned about it by reasonable inspection

[1] go to condition and make it safe or [2] give warning

Reasonable care standard

Almost always lose.

Strong minority of states have abolished the distinction between them.

It is a statutory based standard of care. The test is Class of Person, Class of Risk. Only if the statute meets the two-part test will the courts let the Π borrow the statute to get duty standard.

[1] compliance with the statute is more dangerous than violating the statue (not neg per se); [2] compliance is impossible under the circumstances

There is no duty to rescue!

[1] Δ put Π in peril; [2] Relationships (close family relationship, common carrier & innkeeper relationship, invitee/invitor); [3] Duty to control 3rd persons (Δ must have actual ability and authority to control – Parent/Toddler) [4] Assumption of duty by acting

Generally no duty to refrain from upsetting people

When Δ creates a foreseeable risk of physical injury to Π, either by [1] causing a threat of physical impact that leads to emotional distress or [2] directly causing severe emotional distress that by itself is likely to result in physical symptoms. Think of this as the Zone of Danger Rule

When there is a close relationship to the victim. Must be nearby to accident. Minority rule.

The Π must point to specific conduct.

Evidence of custom or Res Ipsa Loquitur

It’s always admissible, but never conclusive

It’s used by desperate Πs who don’t know what happened. The Π must prove two substitute facts: [1] The event is not one that does not normally occur in the absence of negligence. It will often involve expert testimony. [2] The injury-causing instrumentality was in Δ’s exclusive control.

[1] The event is one that does not normally occur in the absence of negligence. It will often involve expert testimony. [2] the injury-causing instrumentality was in Δ’s exclusive control

The plaintiff beats a directed verdict motion and gets to the jury.

[1] Cause in fact [2] Proximate cause. You need both.

The But-For test – a Δ’s conduct is the cause in fact of an injury when the injury would not have occurred but for the conduct.

[1] Substantial Factor test – use in cases w/ multiple Ds and commingled cause; [2] Burden Shifting – use in cases w/ multiple Δs and an unknown cause. This shifts burden to Δs to prove that each one didn’t do it.

Proximate cause is a limitation on a Δ’s liability. A person is only liable for those harms that are within the risk of his activity. It is the mechanism used limit the scope of Δ’s liability.

If the result of the Δ’s negligent conduct is foreseeable, the Δ will be liable. Hint – err on the side of finding for the plaintiff in these kinds of fact patterns.

Δ acts and then someone/something else acts and then Π gets hurt

Δ liable

Δ liable unless intervening force is crime or intentional tort

Δ not liable

Δ not liable; intervening force is superseding

Δ liable

Δ not liable

[1] subsequent medical malpractice; [2] Negligent Rescue; [3] Reaction forces (Δ’s actions makes crowd disperse and in the process people get run over); [4] Subsequent Diseases or Accidents

[1] Negligence of a Third Party (Δ blocks sidewalk and makes pedestrian walk in street and gets hit); [2] Criminal Conduct (garage owner has faulty locks and someone gets mugged); [3] Acts of God (roofer leaves equipment on roof knowing tornado is coming)

[1] Past and future medical expenses; [2] Past and future lost income; [3] Pain & suffering

A Δ is liable for the full extent of the damage he causes, even if the extent was unforeseeable. Δ is liable for all subsequent injury no matter how unforeseeable

[1] contributory negligence; [2]assumption of risk; [3] comparative negligence

A Π’s failure to use the relevant degree of care for his safety. Decide what standard Π has to live up to and whether he did or not. This is abolished in most states.

Π barred from recovery

Last clear chance – Π can recover if Δ had last clear chance to avoid accident but didn’t

Express and Implied

“I’ll take my chances…”

Completely bars recovery

Won’t work if doing so would violate public policy (ex: signing form from doctors waiving risk of negligent medical care) (but note – in the recreational context, there can be waiver. A skier who signs a form assuming risk of negligently groomed slopes would be barred from recovery)

Π has to have knowledge of the risk and there must be evidence that it was voluntary  Knowing & Voluntary

[1] The absence of an alternative – pit in front of only door to building. Man hurts himself leaving building. [2] Emergency situations – man jumps in front of car to push child out of way

Complete bar to recovery.

Pure Comparative negligence & modified Comparative negligence

Π always recovers something even if he was majority/dominant negligent actor

Π’s recovery is reduced to the threshold. After that threshold, he recovers nothing

[1] pure comparative negligence -30%; [2] modified comparative negligence – 0

Express assumption of risk

[1] Animals; [2] Abnormally Dangerous Activities

Strict liability for foreseeable harm caused by animals (other than household pets)

[1] Domesticated animals – no strict liability unless you know of the animal’s dangerous propensities in advance; [2] Wild Animals – strictly liable from the start. Unless Π does something really dumb, you’re strictly liable.

[1] The activity is incapable of being conducted except with high risk; [2] if harm occurs, it is likely to be severe; [3] the activity must be uncommon or unusual in the community in which it takes place

Blasting, toxic chemicals, nuclear energy

The harm still must be within risk. (Ex: toxic truck driven by driver runs stop sign and hits pedestrian. He won’t be strictly liable for that tort.)

Strict liability

Look carefully theory you are asked to apply. There will be sets of questions based on one fact pattern w/ different liabilities.

[1] Δ must be a merchant of the type of goods involved (manufacturers, wholesalers, retailers); [2] The product must be defective (manufacturing defect or design defect); [3] the defect existed when the product left the seller’s hands; [4] the Π made a foreseeable use of the product

[1] Manufacturing defect – the product is an anomaly, and the different between the product in hand and all others is the very difference that made the product dangerous; [2] Design defect – a problem common to each unit that the seller could have eliminated through a reasonable alternative design (cost effective way without impairing utility)

Traditional jdxns – conduct that is the equivalent of contributory negligence will not bar recovery; conduct that is the equivalent of assumption of the risk will bar recovery

A majority of comparative fault jdxns now apply comparative fault principles in strict products liability cases. (If Π was 30% at fault, he would only recover 70%)

[1] When the theory is negligence, let wholesalers and retailers off the hook (Wal-Mart can’t check every shaver); [2] An adequate warning usually insulates a Δ from strict liability; [3] When a question refers to a “feasible alternative” for making a product safer, it often signals that you should find the Δ liable on a design defect theory; [4] foreseeable use is not the same as intended use (Π using chair as stepladder); [5] if product use is incidental to the performance of a service, strict liability is unavailable

Conduct that causes a substantial and unreasonable interference with the Π’s use and enjoyment of land

Court will weigh the equities of the parties in deciding whether to enjoin a Δ’s activity.

[1] employer-employee; [2] automobile owner-automobile driver; [3] parent-child

The employer is vicariously liable for employee’s torts committed within the scope of employment.

Frolic – minor, thus no liability. Detour – major, thus liability

An employer is not liable for employees’ intentional torts.

Vicarious liability will extend to intentional torts if violence is part of the job.

Generally no vicarious liability

[1] Independent contractor is engaged in inherently dangerous activity. [2] public policy – it’s a catchall where land owners can’t insulate invitees for acts of i.c. (grocer can’t hire i.c. to give away ice cream samples and insulate himself from situations where ice cream melts and customer slips.

No liability

When the driver is performing an errand for owner, liability may be premised on agency principles.

[1] Family car states – owner is vicariously liable for the torts of any household member who was using the car w/ owner’s permission; [2] Permissive use states – Owner is vicariously liable for the torts of anyone who uses that car w/ permission

No

Look for direct liability first. First, ask if there was any reason to hold this Δ negligent for his own conduct. If not, then ask if he was vicariously liable

[1] joint and several liability; [2] indemnity; [3] contribution

Π can pick and choose among jointly liable defendants. Each Δ is liable to Π for entire damage incurred.

Each is jointly and severally liable for the entire injury. This is so even if the injury is divisible.

Where multiple Δs create a single indivisible harm

A passive defendant receives full reimbursement from active defendant.

All Δ are active participants leading to Π’s harm.

[1] Traditional rule – paying Δ recovers proportional shares form other Δs. [2] comparative contribution – recovery is based on relative fault of each tortfeasor.

Wrongful death or survival actions are not separate causes of action. They are labels that apply to tort actions when the tort results in the victim’s death.

Lawsuit brought by a decedent’s beneficiaries for their own loss of support and companionship that deceased would have provided

Lawsuit brought by a decedent’s estate based on claims that deceased could have brought had she lived. It is subject to defenses that could have been raised against deceased.

[1] Family immunity (one family member sues another. Doesn’t exist anymore); [2] governmental immunity; [3] charitable immunity (abolished in most jdxns

Proprietary function – any function that would normally be carried about by private actor. Ex: municipal parking garage.

[1] Police protection activity; [2] fire protection activity; [3] military activity.