Torts I

a person with reasonable sensitivity. there are no hyper-sensitive Ps. A child, drunk and crazy can commit and intentional tort

battery, assault, false imprisonment, IIED, trespass to land, trespass to chattels/conversion

1. harmful or offensive contact
2. with Ps person
3. cause
4. intent

unpermitted by person of ordinary sensitivity

includes anything they are holding or touching or riding in the case of a horse

does not have to be immediate or instantaneous. you can poison someones food that later causes them harmful contact through eating it

1. D must place P in a reasonable apprehension of battery
2. the battery must be imminent
3. cause
4. intent

knowledge! a reason to know or believe- does not have to be absolute knowledge

if p knows the gun is unloaded then p is not in apprehension. if p does not know the gun is unloaded then p is in apprehension of a battery

words alone do not suffice!
even if words promise action, it is still not immediate.
you must have immediate physical conduct.

pay attention to words, they can negate the immediacy

the harm is not imminent so no apprehension

1. D must commit an act of restraint
2. as a result P is confined to a bounded area
3. cause
4. intent

P must be harmed of or aware of act of restraint

must be a pre-existing obligation on D to facilitate Ps movements

a threat will suffice- do not have to have physical restraint. threat must operate in the mind of a normal person.

when there is a reasonable means of escape that the P can reasonably discover

dangerous, disgusting, humiliating or hidden

no, never. just because u cant go inside the clinic to get an abortion does not mean u are being falsely imprisoned!

1. Ds conduct must be outrageous
2. Ds conduct must cause P severe emotional distress
3. cause
4. intent
(negligent infliction of emo distress is different)

can be reckless or intentional
only intentional tort with the word intentional in it, but only one that doesnt require intent

exceeds all bounds of decency tolerated by a civilized society

1. continuous or repetitive in nature
2. D is transportation company or a hotel
3. p is a member of a fragile class of persons
a. child
b. elderly
c. pregnant woman

P can recover if D KNEW about Ps hyper-sensitivity because that would make Ds conduct Outrageous. it is outrageous to deliberately target Ps weak spots

p does not have to prove any specific damages like lost work or wages, dr bills etc. P just has to describe to jury what happened.

when the P was mildly annoyed by Ds really horrific conduct

if you are exercising your first amendment rights your conduct cannot be deemed outrageous in a tort suit

1. intentional act of physical invasion
2. there must be land

1. D enters property
2. D throws physical object onto land

P does not have to be aware he crossed a boundary, but he does have to get to the location on purpose

1. sight
2. sound
3. smell

the earth below and air above in for a reasonable distance.

intentional interference with Ps personal property/stuff

1. D damages Ps property
2. D takes Ps property away from P

1. Trespass to Chattels has slight harm
2. Conversion has more serious harm and the remedy. Conversion operates as forced sale. So the remedy can be the full value of the item not merely the cost of repair.

the Plaintiffs- the case where they neutered the ladys dog.

1. Consent
2. Privileges
3. Necessity

Must have legal capacity!
cant be drunk or a child and consent . children can consent to age appropriate invasions of their interests

an explicit declaration giving D permission to behave in a particular way.
Exception: fraud or duress

1. custom or common usage (getting a hair cut/ physical contact and sports)
2. Ds reasonable interpretation of Ps objective conduct (body language consent)

all consent has scope, if d exceeds scope of consent he will be liable for a tort

1. self defense
2. defense of others
3. defense of property

1. timing; the threat must be imminent or in progress
2. D must demonstrate a reasonable belief that the threat was genuine

a reasonable mistake will not destroy a protective privilege

a shopkeeper can detain suspected shoplifters if reasonable to think they stole something

Rule of proportionality.
can only use deadly force to meet deadly force
cannot use deadly force to defend property

1. trespass to land
2. trespass to chattels
3. conversion

D invades property to protect community or group of people
this is an absolute defense

in an emergency D invades Ps property to protect himself of his property. this is a qualified defense and D has to pay for actual damage to Ps land. D never liable for nominal or punitive damages. P cannot force D to leave land in emergency.

D will not be liable for damage to property

1. P must show D made defamatory statement concerning P
2. P must show Published
3. P must show Damages (maybe)

one that adversely affects the P's reputation.
allegation of purported fact that reflects negatively on character trait of P.
3rd persons detered from working with P.

when it implies an underlying factual basis.
Use the "what are u really saying" test.

NO, never

P can provide context and/or surrounding circumstantial evidence.

It can still be defamatory if the ambiguity can be resolved with additional evidence.

NO, never

to a person other than P or D. republication is when it is repeated- all people are liable for republication. the more people shared with the greater the harm and the greater the damages

it need not be intentional, it can be negligent.
example: mailing defamatory information to the wrong person and they open it.

Damages are presumed for:
1. Libel
2. Slander Per Se
Must put on proof of damages for
1. Slander

Written, recorded, filmed, captured

1.statement relates to Ps business or profession
2.Statement that P committed crime of moral turpitude
3. statement imputing unchastity to a woman
4.statement that P has a loathsome disease

oral or spoken
must show economic harm
hurt feelings or social stigma are not sufficient

1. consent
2. truth
3. privileges

1. spouses
2. officers of the government acting within the scope of their duties
3. members of the media engaged in reporting on public proceedings

1. public interest encouraging candor (letters of recommendation)

1. good faith and reasonable belief that the statement is truthful (honest mistake)
2. D must confine himself to relevant topics

1. defamatory statement
2. published
3. damages (maybe)
4. statement was false
5. D acted with fault

1. P is a public figure then P must prove D knew it was false and made statement anyway or D acted recklessly and made absolutely no check accuracy (malice)
2. P is private figure then p must show D was negligent and did not behave with reasonable prudence enough to investigate the statement

1. Appropriation
2. Intrusion
3. false light
4. disclosure

Ds use of Ps name or image for commercial purposes
exception: newsworthiness

D invades Ps seclusion in a way thats highly offensive to a reasonable person.
P must be in a place where she has a reasonable expectation of privacy.

D makes widespread dissemination of a material falsehood about the P that would be highly offensive to a reasonable person
Policy: Dont Gossip!
No defense if it was made with good faith that it was accurate

widespread dissemination of confidential information highly offensive to a reasonable person.
facts in question have to be truly confidential (no one can know- if some people know its not confidential)
exception: newsworthiness

1. consent - defense to all 4
2. absolute and qualified privileges- defenses to false light and disclosure

1. duty
2. breach
3. cause (actual and proximate)
4. damages

1. to whom do I we a duty?
2. how much care do i owe?

to foreseeable victims of your carelessness.

one who is not in the zone of danger

rescuers. rescuers who are injured and who are not in the zone of danger can still recover except for firemen!

the reasonable prudent person acting under similar circumstances.

the same reasonably prudent person standard applies to all defendants even if they are mentally ill or disabled etc

1. superior knowledge
2. physical characteristics

if a D has superior knowledge about any aspect of the case (even a nugget of info) then the standard becomes a reasonably prudent person with that superior knowledge

the reasonably prudent person always has the same physcial characteristics as the defendant.

1. act by defendant
2. intent
3. cause

can only be used if both the tort intended and the tort that results are:
1. assault
2. battery
3. false imprisonment
4. trespass to land
5. trespass to chattels

1. D intends to commit tort against A but instead
a. commits different tort against A
b. commits same tort as intended but against B
c. commits different tort against B

when the tort is either being committed now or is about to be committed
CANNOT be for a tort that was already committed

there is a duty to retreat before deadly force can be used, if retreat can be done safely.
there is no duty to retreat in your own home.

1. children
2. professional
3. premises liability
4. statutory standards of care
5. duties to act affirmatively
6. negligent infliction of emotional distress

a.Children 4-18 owe the care of a hypothetical child of similar age, experience and intelligence acting under similar circumstances
b.This is a subjective standard unlike the reasonably prudent person that is objective

same as a RPP
required that they operate a motor vehicle

a.Dr or other pro owes her patients/clients the degree of care that would be exercised by the average member of that profession providing similar pro services

none, they are palsgraf- unforeseeable!

if possessor knows or should know then they need to protect against
1. artificial/manmade
2. highly dangerous
3.concealed or hidden
4. possesor knew about it in advance
aka: known manmade deathtraps

duty to protect from
1. concealed hazardous condition
2. known about in advance
(dont have to be death traps like required for discovere trespassers)

duty to protect against
1. concealed hazardous condition
2. known about in advance or discoverable through reasonable investigation

cannot recover for injury due to
-inherent risk of their job!

1. is there something on land that lures children in?
2. is it something child not likely to perceive risk of?

1. fix, eliminate or repair hazard
2. Warn them about it!
cuidado piso mojado!

It is when a statute provides for a criminal penalty and the P wants to use the statute to establish the duty of care and breach of the duty

1. P is member of class of persons statute is intended to protect
2. P can show that the injury is in the class of risks meant to be protected
AKA CLASS OF PERSON CLASS OF RISK

1. if complying with the statute would be more dangerous than violation.
example: D swered across double line so as not to hit child. If D was not allowed to cross line he would have hit child.
2. compliance would be impossible.
example: impossible for D not to cross line when he had a heart attack!

NO - unless there is a pre-existing relationship or if D created the danger

1.Formal legal one
2.Business owner and invitee
3.Common carrier and passenger
4. Innkeeper and guest
5.Employer and employee
6.Family member and family member

rescue reasonable under the circumstances

u are liable!

D must commit negligent act
P must suffer emotional harm NOT physcial harm

1. near miss
2. bystander
3. relationship

1. Ds negligent act put P in a zone of danger
2. P must prove a subsequent physcial manifestation of distress
-heart attack, miscarriage, pooping pants

1. D causes serious bodily injury to X
2. P is emotionally upset beause X is hurt
P must prove
1. P is closely related to X
2. P was there and saw X get hurt

1. P and D have pre-exisitng connection
2. highly foreseeable emotional distress if there is carelessness int he conduct of the relationship
-dr tells patient they are going to die when they arent

1. P must identify specific wrongful conduct that D engaged in
2. and say WHY it was wrongful

1. P has to convince us that the accident that occurred is ordinarily associated with negligence
2. the accident must be shown to ordinarily be due to the negligence of someone in Ds position
-the injury causing object was in control of D at the time of the accident

goes to the jury!

factual and legal
aka
actual and proxmate

linkage between the breach and the injury!
A cause not The cause
Test:
The but for test!

1. merged causes scenario
2. unascertainable causes

2 fires started by 2 people
use the Substantial Factor test
Could EACH BREACH have caused the INJURY on their OWN? if yes they are substantial factors and jointly liable

when there are too many bullets or manufacturers of drugs and no way to ascertain who the proper defendant is the BURDEN SHIFTS to the defendant to explain why their BREACH did not CAUSE THE INJURY
if neither D can carry the shifted burden then they will BE JOINTLY LIABLE

1. P suffered injury that was foreseeable
2. Injury was foreseeable consequence of Ds breach

breach followed almost instantaneously by an injury
continuous uninterrupted chain of events

Freakish and Bizarre Results
hitting car full of dynamite

D commits Breach then other events will occur until later the harm/injury happens

1. Interveneing Medical Negligence
2.interveining negligent rescue
3. interveining protection or reaction forces
4. Subsequent Disease or Accident

1. look at breach
2. ignore all events and look at the outcome
3. was the outcome expected when looking at the breach?
If NOT FORESEEABLE NO LIABILITY! example- shrimp and slipping in puke

take them as u find them!
this applies to every tort!
so if u punch someone who already has a broken eye socket and their eyeball falls out u are liable!

contributory: if u contribute at all u cant recover anything
comparative: P and Ds get assigned a %
modified comparative: if P is over 50% then P does NOT recover

1. animals
2. abnormally dangerous activity
3. product

1. domestic animals:
p must prove negligence unless d knew of the animals dangerous propensities
2. wild animals:
no matter the precautions, if u keep one u are liable

i.It creates a foreseeable risk of serious harm even when reasonable care is exercised
ii.The activity is not a matter of common usage in the community
Look For:
explosives, toxins, nuclear energy

if it says shes suing negligence then analyze negligence
if it says she suing strict liability then analyze strict liability

1. Merchant
2. Product is defective
3. product has not been altered since it left Ds hands
presumed if product moved in ordinary channels of distribution
4. P must have been making a foreseeable use of the product at the time of the injury

1. Manufacturing
departs from intended design/different from all others made
2. Design
there is a safer,cost effective, practical design
failure to conform to gov regulations is proof of defect
3. Warning/Information
risks that cannot be designed away that are not obvious to product users require an ADEQUATE warning or instructions

Carelesness, Stupidity, cockiness by P can all reduce award to P but D is still strictly liable

a substantial and unreasonable interferenece with someone's ability to enjoy their own land
Objective test:
must be annoying, offensive or oppresive to normal person

BALANCING TEST- D can use his land the way he wants but not to the degree that it makes Ps life miserable
LOOK for answers that include a balancing of interests

1. employer/employee
2. hiring party/independent contractor
3. owner of car lends car
4. parent/child

1. not in scope of employment
2. job authorizes use of force
3. job generates friction
4. tort committed by employee trying to serve employers interest

business owner hires IC to do work on premises and he harms and Invitee

if u lend car out for hire/to do errands for u then u can be vicariously liable because u become principle agent

there is none
BUT
P can be liable for their own recklessness if they leave a gun on table and C uses it to shoot someone - P breachs duty to others

1. when he is vicariously liable he can get indemnity from the active tortfeasor
2. any non-manufacturing party can get indemnity from the manufacturer in strict products case

Spouse of V
1. loss of services
2. loss of society
2. loss of sex