Torts

Intentional Torts involving personal injury

• Battery

• Assault

• Intentional Infliction of Emotional Distress

• False Imprisonment

Requirements for Intentional Torts

• Requisite mental state: The defendant must act intentionally (i.e., purposely or knowing that the consequences are substantially certain to result) except for intentional infliction of emotional distress, where a reckless mental state is sufficient.

• Tortious conduct: May be a voluntary act or a failure to act

• Causation: Factual and proximate causation is required

Transferred intent

The requisite intent exists when the defendant:

• Intended to commit one intentional tort against the plaintiff but instead committed a different intentional tort against the plaintiff (e.g., battery instead of assault) OR

• Intended to commit an intentional tort against a third party but instead committed that tort against the plaintiff.

When does a defendant act recklessly?

When:

• The defendant knows of the risk of harm created by the conduct or knows facts that make the risk obvious to another in the person’s situation; and

• The precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the risk as to render the defendant’s failure to adopt the precaution a demonstration of the defendant’s indifference to the risk.

Types of Causation and definitions

• Factual causation: “but-for cause.” When a defendant’s conduct is generally a factual cause of harm when the harm would not have occurred absent the conduct.

• Proximate causation: “Legal cause” Limits a defendant’s liability. A defendant who intentionally or recklessly causes harm is not subject to liability for harm the risk of which was not increased by the defendant’s intentional or reckless conduct.

Battery

A defendant is liable for battery if:

• The defendant intends to cause contact with the plaintiff’s person

• The defendant’s affirmative conduct causes such a contact AND

• The contact causes bodily harm or is offensive to the plaintiff

  • Harmful = contact that causes physical injury, illness, disease, impairment of bodily function, or death.

  • Offensive = A reasonable person would find the contact offensive. Contact is also offensive when the defendant knows that the contact is highly offensive the the plaintiff’s sense of personal dignity and contacts the plaintiff with the primary purpose that the contact will be highly offensive.

Contact with anything connected with the plaintiff’s person qualifies as contact with the plaintiff’s persons for the purposes of battery.

Minority view = must prove intent to cause contact AND that the contact be harmful and offensive.

Damages: physical, emotional, nominal, punitive

Eggshell Rule

The defendant is not required to foresee the extent of damages to be subject to liability for all damages. (E.g., If a defendant pinches a woman who has hemophilia and she later bleeds to death then the defendant is liable for their death).

Assault

A defendant is subject to liability to the plaintiff for assault if:

• The defendant intends to cause the plaintiff to anticipate an imminent harmful or offensive contact with the plaintiff’s person AND

• The defendant’s affirmative conduct causes the plaintiff to anticipate such contact with the plaintiff’s person.

No contact is required but the plaintiff must be aware of the defendant’s conduct. Threats of future harm or threats from a defendant who is too far away to actually make contact do not usually meet the “imminence” requirement.

Mere words alone do not constitute an assault but may negate the intent.

Intentional Infliction of Emotional Distress

The defendant, by extreme and outrageous conduct, must intentionally OR recklessly cause the plaintiff severe emotional distress. Conduct is extreme and outrageous if it exceeds the possible limits of human decency, making it unacceptable in civilized society.

Transferred intent may apply ONLY if, instead of harming the intended person, the defendant’s extreme and outrageous conduct harms another.

Public Figures or Public Concern: To recover for IIED by reason of publication, public figures and public officials must show falsity and actual malice. Private plaintiffs cannot recover for IIED if the conduct at issue was speech on a matter of public concern because that conduct may be protected by the First Amendment.

Damages: Defendant’s actions must be a factual (but for) cause of the plaintiff’s distress. And the plaintiff must experience severe distress beyond what a reasonable person could handle—unless the defendant knows that the plaintiff is hypersensitive to severe emotional distress.

Emotional Distress Caused by Harm to Third Party

A defendant who intentionally or recklessly harms a victim may be liable to the victim’s close family members who witness the defendant’s conduct and suffer severe emotional distress. But if the defendant’s purpose is to upset a third party, then that third party can recover without having witnessed the conduct or being related to the victim.

False Imprisonment

A defendant is liable for false imprisonment it:

• The defendant intends to confine the plaintiff within a limited area (or when they are forced to move in a highly restricted way)

• The defendant’s conduct causes the plaintiff’s confinement or the defendant fails to release the plaintiff from a confinement despite owing a duty to do so AND

• The plaintiff is conscious of the confinement.

Methods of confinement include physical barriers, force, threats, legal authority, duress, and failure to provide a means of escape. The length of confinement is unimportant except to calculate the amount of damages.

Proof of actual damages is typically not required, but a minority of jurisdictions require such proof when the plaintiff is unaware of the confinement.

Defenses to Intentional Torts Involving Personal Liability

• Consent

• Self-Defense

• Defense of Others

• Defense of Property

• Privilege to Discipline or Control a Minor Child

• Privilege of Arrest

• Merchant’s Privilege

Consent

A defendant is not liable for otherwise intentional tortious conduct if the plaintiff gave legally effective consent to that conduct.

• Actual or Express: The plaintiff is willing for the conduct to occur. Such willingness may be express or inferred from the facts.

• Apparent: The defendant reasonably believes that the plaintiff is wiling for the conduct to occur.

• Presumed or Implied: The defendant’s conduct is justified based on prevailing social norms, and the defendant has no reason to believe that the plaintiff would not actually consent.

• Emergency Doctrine: The defendant’s conduct is justified if the defendant:

  • Intends to prevent/reduce a risk to a plaintiff’s life or health

  • Reasonably believes that (1) the risk substantially outweighs the plaintiff’s interest in avoiding the conduct and (2) immediate action is necessary AND

  • Had no reason to believe that the plaintiff would not actually consent.

Determination of whether a participant in an athletic or recreational activity can rely on apparent or presumed consent typically involves consideration of a variety of factors, such as whether the conduct is a violation of a safety rule of the sport, whether the conduct typically occurs during the activity, and whether the conduct involves significant risks of very serious injury or death.

Self-Defense

A defendant claiming self-defense must reasonably believe that the force is necessary and proportionate to the unprivileged force that the plaintiff is intentionally inflicting or about to inflict.

A defendant who uses excessive force in self-defense remains liable for (1) any harm attributable to the excessive force or (2) all indivisible harm caused by the privileged force and the excessive force.

Non-deadly Force: The defendant must reasonably believe that:

• The plaintiff is intentionally using, or about to use, unprivileged force on the defendant

• The force that the defendant is using is proportionate AND

• The immediate use of force is the only way to prevent the plaintiff’s force or threat of force.

Deadly Force: The defendant must reasonably believe that:

• The plaintiff is intentionally using, or about to use, unprivileged force that will lead to death, serious bodily harm, or rape AND

• The defendant can safely prevent this harm only by immediately using deadly force.

  • Under the majority rule, there is no duty to retreat before using deadly force in self-defense.

Harm to Bystander: The defendant may use non-deadly force against a bystander if the defendant reasonably believes that:

• The force that the plaintiff is using against the defendant is substantially greater than the force that the defendant used against the bystander AND

• The defendant’s use of force against the bystander is immediately necessary to avoid the plaintiff’s threat or use of force.

Defense of Third Persons

The defendant must reasonably believe that the third person is privileged to use force in self-defense and that intervention is immediately necessary.

Defense of Property

The defendant is privileged to act to prevent the plaintiff’s imminent intrusion on the defendant’s land or personal property if:

• The intrusion is not privileged

• The defendant reasonably believes that the plaintiff is intruding or about to intrude and that only the means used can prevent this

• The defendant first asks the plaintiff to stop or reasonably believes that doing so would be futile or dangerous

• The means used are reasonably proportionate ro the value of whatever the defendant is protecting AND

• The means used are not intended or likely to cause death or serious bodily injury.

NO deadly force is allowed, including deadly traps. Additionally, the defendant must use legal action (e.g., eviction)—not force—to regain property.

Privilege to Discipline or Control a Minor Child

Parents (and those acting in loco parentis) may use reasonable force or confinement based on the child’s age and the gravity of the behavior. Educators may use reasonable force to maintain order and safety.

Privilege of Arrest

• Private Actor:

  • Felony arrest: Force may be used to make a felony arrest if (1) the felony has been in fact committed AND (2) the defendant has reasonable grounds to suspect that the person being arrested committed it.

    • Under the Third Restatement, the defendant must also reasonably believe that law enforcement will likely be unable to apprehend the other unless the defendant immediately uses such force. This privilege does NOT apply if the defendant makes a mistake (even a reasonable one) as to either the identity of the felon or the commission of the felony.

  • Misdemeanor arrest: Under the majority rule, the misdemeanor must happen in front of the private actor and be a breach of the peace.

    • The Third Restatement recognizes the privilege only if (1) the misdemeanor creates a substantial risk of bodily harm and (2) the private actor reasonably believes that the police will be unable to stop it.

• Law Enforcement Officials: Law enforcement officials may use force, threat of force, or confinement to make an arrest, investigate or stop a crime, or otherwise enforce the law. Off-duty officials are treated like private actors.

• Use of Force: The force used by private actors or law enforcement officials must be reasonably necessary, proportionate, and for a legitimate purpose. Additionally, the actor must communicate the intent to arrest before using force (unless it would be useless).

Merchant’s Privilege

A seller of goods or services (i.e., merchant) may use force against another to investigate a theft, recapture personal property, or facilitate arrest. The merchant must reasonably believe that the other has wrongfully taken merchandise or failed to pay. The force must be used on or immediately surrounding the merchant’s premises, in a reasonable manner, and for a reasonable time. Deadly force is not allowed.

Torts to Personal Property and Land

• Trespass to Chattels

• Conversion

• Trespass to Land

• Nuisance

Trespass to Chattels

Trespass to chattels (i.e., tangible personal property) is an intentional interference with the plaintiff’s right of possession by dispossession OR by use or intermeddling. Only the intent to do the interfering act is needed, and transferred intent applies. A defendant’s mistake of fact or law is NOT a defense.

• Dispossession cases: The plaintiff may recover for actual damages, loss of use, and nominal damages OR

• Use or intermeddling cases: The plaintiff may recover only when there are actual damages.

Actual damages may include the chattel’s decrease in value or cost of repair.

Conversion

Conversion is an intentional act by the defendant:

• Deprives the plaintiff of possession of a chattel OR

• So seriously interferes with the chattel that it deprives the plaintiff of its use.

Only the intent to do the interfering act is needed, but transferred intent does NOT apply. Defendant’s mistake of fact or law is NOT a defense.

Damages amount to the full value of the converted property at the time of the conversion. Alternatively, the plaintiff may bring an action for replevin to recover the chattel.

The distinction between trespass to chattels and conversion depends on the degree of seriousness of the interference.

Factors considered to tell the difference between trespass to chattels and conversion

• The duration and extent of the interference

• The intent to assert a right inconsistent with the rightful possessor

• The defendant’s good faith, the expense of the convenience to the plaintiff AND

• The extent of the harm to the chattel.

The more extreme the interference, the more likely the court will find conversion rather than trespass to chattels.

Trespass to Land

Trespass to land requires the intent to enter the land or cause a physical invasion (e.g., throwing an object onto the land)—not the intent to commit a wrongful trespass. Transferred intent applies. No proof of actual damages is required, nominal damages are okay.

Defense to Trespass to Land = Necessity

• Private necessity (qualified privilege): Allows a limited number of people to enter or remain on land to protect themselves or their property from serious harm. However, the defendant is still responsible for actual damages.

• Public necessity (absolute privilege): Allows a trespass to protect a large number of people from a public disaster (e.g., spreading of a fire). The defendant is not liable for damage if they act reasonably. So even if there was no actual necessity, the defendant is NOT liable if they reasonably believed that there was.

Private Nuisance

Private nuisance is a substantial and unreasonable interference with another’s use or enjoyment of land. The interference must be intentional, reckless, negligent, or the result of abnormally dangerous conduct.

• Substantial interference: One that would be offensive, inconvenient, or annoying to an average reasonable person in the community.

• Unreasonable interference: One that makes the land unavailable for ordinary use or enjoyment AND:

  • is nuisance per se

  • does not comport with customs/expectations

  • results from a failure to use reasonable care

  • causes physical damage to land/fixtures OR

  • is motivated by malice.

Anyone with possessory rights in the real property is an appropriate plaintiff.

Defenses:

• Regulatory compliance (incomplete defense): Evidence of the defendant’s compliance is admissible but not determinative.

• Coming to the nuisance: Evidence that the plaintiff came to the nuisance does not entitle the defendant to judgment as a matter of law, but the jury may consider such evidence.

Public Nuisance

Public nuisance is an unreasonable interference with a right common to the general public. Private citizens are appropriate plaintiffs if they have suffered harm that is different in kind from the general public.

Negligence Requirements

• Duty: The obligation to protect another against the unreasonable risk of injury

• Breach: The failure to meet that obligation.

• Causation: A close causal connection between the action and the injury.

• Damages: The harm suffered.

Duty

A duty of care is owed to anyone who may forseeably be injured by the defendant’s failure to act as a reasonable person under the circumstances.

Foreseeability of the Plaintiff (Duty)

• Cardozo (majority) view: The defendant is liable only to plaintiffs who are within the zone of foreseeable harm.

• Andrews (minority) view: If the defendant can foresee harm to anyone due to their negligence, then a duty is owed to everyone harmed (foreseeable or not).

The defendant may be liable for negligently putting the rescued party or the rescuer in danger. If the rescuer’s efforts are unreasonable, comparative responsibility applies. However, under the firefighter’s rule, emergency professionals CANNOT recover for injuries resulting from the risks of the job.

Affirmative Duty to Act

There is generally no duty to act affirmatively. But a duty to act affirmatively may be imposed:

• If the defendant assumes a duty

• If the defendant places another in peril

• If the defendant has actual authority to control another (e.g., parent over child, employer over employee)

• By a contract

• By a relationship (e.g., employer-employee, parent-child, common carrier-passenger)

• By a statute imposing an obligation to act for the protection of another

Standard of Care (Generally)

Objective standard which takes physical characteristics into account but not mental ones. A defendant with special skills or knowledge must apply them with reasonable attention and care.

A voluntarily intoxicated is held liable to the same standard as a sober person.

A child is held to the standard of a reasonable child of similar age, intelligence, and experience. But a child engaged in a high-risk, adult activity is held to an adult standard. A child under the age of five generally cannot be negligent.

Standard of Care for Specific Classes of Defendants

• Common carriers (e.g., planes, trains, buses) are held to the highest duty of care consistent with the practical operation of the business. As a result, they can be held liable for “slight negligence.”

• Innkeepers (hotel operators) are liable only for ordinary negligence. At common law, they could be held liable for slight significance.

• Automobile drivers owe ordinary care to their guests (nonpaying) as well as their passengers (paying), unless there is a guess statute. Guest statutes exist in a minority of states and impose a duty to refrain from gross or wanton and willful misconduct with a guest in the car.

• Gratuitous bailors need only inform the bailee of known dangerous defects. In contrast, compensated bailors must take reasonable care to ensure the item is safe for the bailee’s foreseeable use or give adequate warning of any defects.

• Bailees in a bailment for the bailor’s sole benefit are liable only for gross negligence. Bailees who receive the sole benefit of the bailment must exercise ordinary care. Bailees in a bailment for mutual benefit must exercise reasonable care.

Duty to Possessors of Land (Majority Rule)

• Invitees: Inspect of unknown dangers, make safe or warn, and prevent harm from active operations

• Licensees: Warn of concealed dangers that are known or should be obvious to the land possessor

• Known or anticipated trespassers: Warn of concealed artificial dangers

• Other trespassers: Refrain from willful, wanton, reckless, or intentional misconduct (e.g., traps)

Duty to Possessors of Land (Minority Rule)

• Invitees, Licenses, Known or anticipated trespassers: Exercise reasonable care under all circumstances.

• Other trespassers: Refrain from willful, wanton, reckless, or intentional misconduct (e.g., traps)

Duty to Land Possessors — Special Cases

• Trespassing children: Under the attractive nuisance doctrine, land possessors are liable for injuries to trespassing children if:

  • An artificial condition poses an unreasonable risk of serious bodily injury to children

  • Children cannot discover or appreciate the danger

  • The utility of the condition is slight compared with the risk of injury AND

  • The land possessor fails to exercise reasonable care

Landlord and tenants

Landlords are liable for injuries occurring:

• In common areas

• As a result of hidden dangers about which they fail to warn the tenant

• On premises leased for public use

• As a result of a hazard caused by negligent repair

• As a result of a hazard that the landlord had agreed to repair.

Conversely, tenants are liable for injuries arising from dangerous conditions within their control.

Off-premises victims

Landowners generally owe no duty to someone off the premises who is harmed by a natural condition (except for trees in urban areas). But for artificial conditions, landowners owe a duty to prevent an unreasonable risk of harm.

Sellers of real property

Sellers of real property have a duty to disclose to buyers any concealed and unreasonably dangerous conditions known to the seller. The seller’s liability continues until the buyer has a reasonable opportunity to discover and remedy the defect.

Breach of Duty (Generally)

A breach of duty occurs when a defendant departs from the required standard of care, such as through failing to act as a reasonable person, through an unexcused violation of a statute, or—if there is no direct evidence—through res ipsa loquitur.

• Majority approach: To determine negligent conduct, courts compare the defendant’s conduct with what a reasonably prudent person would have done under the circumstances (objective standard).'

• Third Restatement: To determine negligent conduct, courts will do a cost-benefit analysis. courts consider the foreseeable likelihood that the defendant’s conduct would cause harm, the foreseeable severity of any resulting harm, and the defendant’s burden in avoiding the harm.

Custom (Breach of Duty)

Custom evidence is admissible, but generally not conclusive, to establish the proper standard of care. But for professionals, deviation from or compliance with custom is dispositive evidence of a breach.

Professionals are expected to use the same skill, knowledge, and care as an ordinary practitioner in the same community. Specialists may be held to a higher standard than general practitioners. An expert must establish the standard of care for a professional unless the negligence is so obvious that a lay person can identify it (e.g., a surgeon amputating the wrong leg).

Physicians, including specialists, are held to a national standard in most jurisdictions. This departs from the traditional rule that physicians are held to the same locale standard. Failure to comply with the “informed consent” doctrine amounts to medical negligence unless (1) the risk is commonly known, (2) the patient is unconscious, (3) the patient waives or refuses information, (4) the patient is incompetent, or (5) disclosure would be detrimental.

Negligence Per Se Elements

• A criminal or regulatory statute imposes a specific duty for the protection of others

• The defendant violates the statute by failing to perform that duty

• The plaintiff is in the class of people intended to be protected by the statute

• The harm is of the type that the statute was intended to protect against.

Once these elements are established, the defendant is liable for any injuries that were proximately caused by the violation of the statute. However liability may be avoid if any of these defenses apply:

• Compliance was impossible or more dangerous than violating the statute

• The violation was reasonable under the circumstances, or the defendant exercised reasonable care in attempting to comply with the statute

• The statutory requirements were confusing

• Compliance with federal regulations preempts a common-law tort action

Res Ipsa Loquitur

The trier of fact may infer the existence of a defendant’s negligent conduct in the absence of direct evidence of such negligence. Requires proof of the following:

• The accident was of a kind that ordinarily does not occur in the absence of negligence.

• The accident was caused by an agent/instrumentality within the exclusive control of the defendant.

  • Courts generously interpret this requirement

  • Many courts ignore this requirement for products-liability cases if the manufacturer wrapped the package or it is clear that negligence occurred during production

  • If several medical personnel had access to the plaintiff during surgery, some jurisdictions will presume that each defendant breached a duty of care unless each defendant rebuts

• The accident was not due to any action on the part of the plaintiff.

Causation (Generally)

A plaintiff must prove that the defendant’s actions were the cause of the plaintiff’s injury. Causation in negligence requires a showing of actual cause and proximate cause.

Actual Cause (Cause in Fact)

The defendant’s tortious conduct is the factual cause of the plaintiff’s injury if the injury would not have occurred BUT FOR the defendant’s conduct.

If there are multiple causes of the plaintiff’s injuries, the test is whether the defendant’s conduct was a substantial factor in causing those injuries. If it is unclear whose conduct caused the plaintiff’s injury, then the court may shift the burden to EACH defendant to prove that he did not cause the injury. Joint and several liability may apply if two or more defendants are each a factual cause of the plaintiff’s indivisible injury or if they acted with a common plan or design.

Proximate Clause (Legal Cause)

Proximate cause is a legal limitation on actual cause, focusing on foreseeability.

• Majority: Defendants are liable for reasonably foreseeable consequences, so plaintiffs can recover if they were foreseeable victims of the defendant’s conduct.

• Minority/Andrews: Defendants are liable for ALL direct consequences of their conduct, and plaintiffs can recover if their harm was within the scope of liability of the defendant’s conduct

Events occurring after the defendant’s breach may impact the chain of causation between the defendant’s breach and the plaintiff’s harm.

• An intervening cause is any cause that occurs after the defendant’s tortious act.

• An unforeseeable intervening cause is a superseding cause that breaks the chain of proximate causation.

Intervening negligence is ALWAYS foreseeable and therefore, is never a superseding cause breaks the chain of causation. Often tested in the context of med mal.

The type of damages must be foreseeable, but under the eggshell-skull rule, the extent of the damages need not be. This means that a defendant may be liable for the full extent of a plaintiff’s injuries even if those injuries were worsened by the plaintiff’s preexisting condition.

Damages for Negligence

• Actual Physical Harm

• Personal Injury

• Property Damage

• Collateral-Source Rule

• Punitive Damages

Actual Physical Harm (Damages)

The plaintiff must prove actual physical harm (i.e., bodily harm or property damage). A plaintiff with physical harm may add emotional distress as parasitic damages (e.g., NIED claims). However, pure economic loss, nominal damages, and attorney’s fees are NOT recoverable.

The plaintiff may recover compensatory damages, the general measure of which is compensation that would make the victim whole. However, the plaintiff must take reasonable steps to mitigate damages. Failure to do so may reduce the damages the plaintiff can recover.

Personal Injury (Damages)

Damages for personal injury generally include medical and rehabilitative expenses (past and future), pain and suffering (past and future), as well as lost income and any reduction in future earnings capacity.

Under the eggshell skull rule the defendant is liable for the full extent of the plaintiff’s injuries.

Property Damage (Torts)

Generally, the plaintiff may recover (1) the difference between the fair market value immediately before and after the injury or (2) the cost of repairs, if it does not exceed the value of the property.

Collateral-Source Rule

Benefits from outside sources (e.g., the plaintiff’s medical insurance) are not credited against the defendant’s liability. However, payments made by the defendant’s insurer are not from a collateral source and are credited against the defendant’s liability.

Most states have eliminated or substantially modified this rule.

Negligent Infliction of Emotional Distress

To recover under the zone-of-danger theory, the plaintiff must prove that they were in the zone of danger (i.e., feared for their safety) AND that the threat of physical impact caused emotional distress. Under the majority rule, this emotional distress must be manifested by physical symptoms (e.g, nightmares, shock). But under the minority rule, physical symptoms are not required.

A plaintiff outside the zone of danger can still recover under a bystander theory if the plaintiff is (1) closely related to the person injured by the defendant, (2) was present at the scene, and (3) personally observed or perceived the injury. Under the majority rule, physical symptoms of emotional distress are required.

No threat of physical impact or physical symptoms are required in special-relationship cases (e.g., a mortician mishandling a corpse, a common carrier mistakenly reporting the death of a relative).

Pure Economic Loss

Economic damages are only recoverable alongside related personal injury or property damage (i.e., no recovery for pure economic loss).

Wrongful-Death Actions and Survival Actions

In wrongful death actions, a decedent’s spouse, next of kin, or personal representative may bring suit to recover losses suffered as a result of the decedent’s death. This includes damages for loss of support, companionship, society and affection (but not pain and suffering). Recovery is limited to whatever the deceased would have recovered had the deceased lived.

In survival actions, the representative of the decedent’s estate may pursue any claims that the decedent would have had at the time of death (including claims for pain and suffering). However, double recovery is not allowed if the jurisdiction recognizes both wrongful-death and survival actions.

Recovery for Loss Arising from Injury to Family Member

A person may recover for loss of consortium and society resulting from a physical or emotional injury to a spouse or child.

Wrongful-Life and Wrongful-Birth Actions

A few states allow wrongful-life actions by a child based on the failure to properly perform a contraceptive procedure or diagnose a congenital defect. However, recover is limited to special damages attributable to the child’s disability.

Many states allow parents to recover for wrongful birth (failure to diagnose a defect) or wrongful pregnancy (failure to perform a contraceptive procedure). The mother can generally recover for the medical expenses of labor plus plain and suffering. If the child is disabled, then the parents may be able to recover damages for the medical expenses of caring for that child (and for emotional distrss in some states).

Vicarious Liability

Vicarious liability is a form of struct liability in which one person is liable for the tortious actions of another. It arises when a person has the right, ability, or duty to control the activities of another.

Respondeat Superior (Employer’s Liability for an Employee’s Torts)

An employer is vicariously liable for an employee’s tortious conduct when (1) an employer-employee relationship exists and (2) the employee’s tortious conduct occurs within the employee’s scope of employment. However, an employer is NOT liable for an employee’s intentional torts except when:

• The conduct involves work assigned by the employer (e.g., bouncer using force)

• The employee’s tort is intended (at least in part) to benefit the employer or

• The employee is acting with apparent authority (e.g., an employee with the power to sign contracts enters a fraudulent one).

In addition to vicarious liability, an employer may directly liable for negligently hiring, training, supervising, or otherwise controlling an employee.

Liability for Independent Contractors

A person who engages an independent contractor is generally NOT vicariously liable for the contractor’s torts, subject to the following exceptions:

• The person retains control over the item that is the source of the tortious conduct

• The independent contractor is performing abnormally or inherently dangerous activities or nondelegable duties

• The independent contractor is acting with apparent agency

A person may also be liable for his own negligence in selecting or supervising an independent contractor

Business Partners and Joint-Enterprise Participants

Business partners and joint-enterprise participants may be liable for each other’s tortious acts that aer committed within the scope of partnership/ business purposes

Automobile Owners

• Negligent entrustment: The owner of a vehicle (or any object with harmful potential) may be liable if the owner knew or should have known about the entrusted user’s negligent propensities.

• Family purpose: In many jurisdictions, an automobile owner may be liable for the tortious acts of a family member driving the car with permission

• Owner-liability statutes: In many jurisdictions, an automobile owner may be statutorily liable for the tortious acts of anyone driving with permission

Parents and Their Children (Vicarious Liability)

The general rule is that parents are not vicariously liable for their minor child’s torts unless the child was acting as their agent or a state statute applies. However, parents are directly liable for their own negligence if they fail to use reasonable care to prevent their child from intentionally or negligently harming someone else, provided that the parents (1) can control the child and (2) know or should know about the necessity and opportunity fir exercising control .

Dram-Shop Liability

Many states recognize a cause of action against the seller of intoxicating beverages when a third party is injured because of the buyer’s intoxication. Most states limit liability to circumstances in which the buyer was a minor or intoxicated at the time of sale. Additionally, many states extend liability to social hosts for injuries to intoxicated guests and/or third parties injured by intoxicated guests.

Immunities from Tort Liability

• Liability of the Government and Its Officers:

  • Federal government: Under the Federal Tort Claims Act, the U.S. government can NOT be liable for certain torts such as

    • enumerated torts

    • discretionary functions

    • government contractor in products-liability case (unless the contractor failed to warn or conform to government specifications

    • traditional government activities

  • State government: Most states have at least partially waived immunity, but state's’ tort claims acts vary

  • Municipalities: The liability of municipalities, other local governments, and their agencies is usually governed by state tort claims acts. Traditionally, immunity attached only to government functions

  • Government officials: Immunity applies to the performance of discretionary functions entrusted to government officials by law, unless the official acts with malice or improper purpose. There is NO immunity for ministerial acts. Legislators, judges, and prosecutors performing their functions are immune from liability

• Intra-Family Liability: Inter-spousal immunity has been abolished in most states. Parent-child immunity is limited to core parenting activities.

• Charitable Immunity: Charitable immunity has been totally or partially eliminated in most states. However, some states cap the amount of damages recoverable from a charitable institution.

Sharing Liability Among Multiple Defendants

Under the doctrine of joint and several liability, each of two or more defendants who are found liable for a single and indivisible harm to the plaintiff is subject to liability for the entire harm.

However, most jurisdictions instead recognized pure and several liability, under which each defendant is liable only for his proportionate share of the plaintiff’s damages.

• Contribution: Under joint and several liability, a defendant who pays more than his fair share of damages for the common liability can sue the other defendants for contribution and recover anything paid in excess of his fair share. A defendant seeking contribution from another defendant must prove that the other would have been liable to the plaintiff for the amount sought as contribution. However, an intentional tortfeasor generally cannot seek contribution from another tortfeasor.

• Satisfaction and Release: Even when several tortfeasors may be subject to liability to the plaintiff for the entire harms, plaintiffs may not receive double recovery.

• Indemnification: Indemnification is the shifting of the entire loss from one person to another. Indemnification typically occurs when a person is vicariously liable for another’s wrongdoing, but it also may be based on an agreement, equity, subsequent additional harm, or strict products liability.

Defenses to Negligence

• Contributory Negligence

• Comparative Fault

• Assumption of the Risk

Contributory Negligence

The plaintiff’s contributory fault is a complete bar to recovery for negligence—but NOT for an intentional tort, gross negligence, or recklessness.

But under the last-clear-chance rule (abolished in most jurisdictions), the plaintiff may mitigate the legal consequences of their own contributory fault if the defendant had the last clear chance to avoid injuring the plaintiff and failed to do so.

• Helpless plaintiff: The defendant is liable to a helpless plaintiff if the defendant knew or should have known about the plaintiff’s perilous situation.

• Inattentive plaintiff: The defendant is liable to an inattentive plaintiff only if the defendant had actual knowledge of the plaintiff’s inattention.

Comparative Fault

In pure comparative-negligence jurisdictions, the plaintiff’s damages are merely reduced by their percentage of fault.

In partial (or modified) comparative-negligence jurisdictions:

• If the plaintiff is less at fault than the defendant(s), the plaintiff’s recovery is reduced by their percentage of fault.

• If the plaintiff is more at fault than the defendant(s), the plaintiff recovers nothing.

• If the plaintiff and defendant(s) are equally at fault, the plaintiff recovers 50% of their damages. But in a minority of jurisdictions, the plaintiff recovers nothing.

Comparative fault (pure or modified) will not reduce the plaintiff’s recovery in an intentional tort case

Assumption of the Risk

The plaintiff’s voluntary encountering of a known, specific risk is an affirmative defense to negligence that affects recovery. In contributory-negligence jurisdictions assumption of the risk is a TOTAL bar to recovery. But in comparative-negligence jurisdictions, it merely reduces recovery.

While parties can contract to disclaim liability for negligence, courts will not enforce exculpatory provisions (i.e., express assumption of the risk) in contracts if:

• They disclaim liability for reckless or wanton misconduct or gross negligence

• There is a gross disparity in bargaining power

• The party seeking exculpation offers services of great importance to the public

• They are subject to typical contract defenses like fraud or duress

• They are against public policy

Strict Liability

Strict liability requires proof of (1) an absolute duty to make the plaintiff’s person/property safe, (2) actual and proximate causation, and (3) damages. The only situations where a defendant can be liable without proof of fault are:

• Dangerous activities

• Animals

• Defective or Dangerous Products.

Abnormally Dangerous Activities

An abnormally dangerous activity is one that is not commonly engaged in that creates a foreseeable and highly significant risk of physical harm. Courts consider the gravity of the harm, the inappropriateness of the place, and the limited value of the activity. Strict liability is limited to the harm expected from the activity.

Strict Liability for Animals

• Wild animals: The owner or possessor of a wild animal is strictly liable for harm that arises from a dangerous propensity that (1) is characteristic of such an animal or (2) the owner or possessor has reason to know about. The strict liability extends to injuries caused buy the plaintiff’s fearful reaction to seeing an unrestrained wild animal.

• Abnormally Dangerous Animals: The owner or possessor of an abnormally dangerous animal is strictly liable for injuries caused by that animal if (1) the owner or possessor knows or should have known that the animal has dangerous propensities abnormal for its category or species and (2) the harm results from those propensities.

• Trespassing Animals: The owner or possessor of any animal (NOT household pets) is strictly liable for any reasonably foreseeable damage caused by the animal while trespassing. The exception for household pets does NOT apply if the owner or possessor knows or has reason to know that the pet is intruding on property in a way that tends to cause substantial harm. In contrast, the general negligence standard applies if an animal strays onto a public road and contributes to an accident there.

Defenses to Strict Liability

• In contributory-negligence jurisdictions, contributory negligence is NOT a defense (i.e., it does not bar recovery).

• In some comparative-fault jurisdictions, the plaintiff’s negligence does not reduce their recovery. In others and under the Third Restatement, recovery can be reduced by the plaintiff’s comparative fault.

• Assumption of the risk bars recovery.

Products Liability (Generally/ Negligence)

• Duty: The duty of reasonable care that a commercial manufacturer, distributor, retailer, or seller owes to any foreseeable plaintiff

• Breach: Failure to exercise reasonable care in the inspection of a product

• Causation: Requires actual and proximate causation

• Damages: Personal injury or property damage (not pure economic loss)

Standard defenses apply

Strict Products Liability

• The product was defective (in manufacture, design, or failure to warn)

• The defect existed when the product left the defendant’s control

• The defect caused the plaintiff’s injury during intended or reasonably foreseeable use.

The plaintiff need not be in privity of contract with the defendant. Anyone foreseeably injured or whose property is harmed may bring a strict products-liability action.

The defendant must be in the business of selling (or otherwise distributing) the kind of product that harmed the plaintiff. A seller includes the manufacturer of the product, its distributor, and its retail seller. Casual sellers, auctioneers, the plaintiff’s employer, and service providers are NOT strictly liable.

Defective Product

• Manufacturing defect: exists when the product fails to conform to the manufacturer’s intended specifications.

• Design defect: Determined under the following tests:

  • Consumer-expectation test: Is the product in an unreasonably dangerous condition that an ordinary consumer would not expect?

  • Risk-utility test: Do the risks posed by the products outweigh its benefits? The plaintiff mist prove that a reasonable (economically feasible) alternative design was available and that the failure to use that design made the product unreasonably safe.

• Failure to warn: Exists if the product has foreseeable risks of harm that are not obvious to an ordinary user of the product and could have been reduced or avoided with reasonable instructions or warnings. Under the learned-intermediary rule, the manufacturer of a prescription drug or medical device satisfies the duty to warn by warning the prescribing physician about problems with the drug or device UNLESS:

  • The manufacturer knows that the drug or device will be dispensed without a healthcare provider’s personal intervention or evaluation or

  • The drug in question is birth control pills.

Damages (Strict Products Liability)

The plaintiff may recover damages for personal injury or property damage. A claim for purely economic loss must be brought as a breach-of-warranty action. For fungible products produced by several manufacturers, the jury can apportion damages based on the market shares of each manufacturer.

Defenses for Strict Products Liability

• Comparative fault: The plaintiff’s own negligence will reduce their recovery

• Contributory negligence: The plaintiff’s negligence is no defense if the plaintiff negligently failed to discover a defect or misused the product in a reasonably foreseeable way

• Assumption of the risk: This is a COMPLETE bar to recovery in contributory-negligence jurisdictions. But in most comparative-fault jurisdictions, it only reduces recovery.

• Unforeseeable misuse, alteration, or modification of the product: Bars recovery in most contributory-negligence jurisdictions and reduces it in most comparative-fault jurisdictions

• Compliance with government standards: This is NOT conclusive evidence, but may still be considered.

• State-of-the-art standard: Compliance with this standard will only bar recovery in some states. This standard is inapplicable in manufacturing-defect cases.

• Statute of limitations: The statute begins to run against an injured plaintiff when they discover (or should discover with reasonable care) their injury and its connection to the product.

• Unforeseeable intervening causes (i.e., superseding causes): These can cut off the defendant’s liability.

Implied Warranties (Torts)

The implied warranty of merchantability warrants that the product is generally acceptable and reasonably fit for the ordinary purposes for which it is being sold.

The implied warranty of fitness for a particular purpose warrants that a product is fir for a particular purpose, but only if the seller knows that purpose and the buyer relies on the seller’s skill or judgment in supplying the product.

If either warranty is breached, the buyer may recover damages for personal injury and property damage as well as purely economic loss. In addition, the UCC includes three alternative privity provisions that allow a plaintiff who is not the buyer to recover:

• Alternative A (majority rule): allows a member of the buyer’s family or household to recover for personal injury, but not for property damage or pure economic loss

• Alternative B: allows anyone reasonably expected to use, consume, or be affected by the product to recover for personal injury.

• Alternative C: Similar to Alternative B but also allows recovery for property damage and economic loss

A claim for purely economic loss must be brought as a breach-of-warranty action.

Express Warranties (Torts)

An express warranty is an affirmation of fact or a promise about a product that is part of the basis of the bargain. THe seller is liable for any breach, regardless of fault.

Defenses to Warranties

• Disclaimers: Any limitation of consequential damages for personal injury related to consumer goods is unconscionable. And a disclaimer of an express warranty is valid only if it is consistent with the warranty, which it usually is not.

• Comparative fault and assumption of the risk: These affect recovery in the same way as they would in a strict products liability action.

• Contributory negligence: This does not bar a warranty claim, except when the contributory negligence consists of the unreasonable encountering of a known risk (i.e., when it overlaps with the assumption of the risk

• Product misuse: This prevents recovery under the implied warranty of merchantability when the product is warranted to be fit for ordinary purposes

• Failure to provide notice of breach: A warranty claim generally fails if the plaintiff fails to give the seller notice of the breach within the statutorily required time period (when applicable) or a reasonable time.

Defamation

A plaintiff may bring a defamation action if the defendant’s defamatory language (1) is of or concerning the plaintiff, (2) is published to a third party who understands its defamatory nature, and (3) damages the plaintiff’s reputation

• Defamatory language: diminishes respect, esteem, or goodwill toward the plaintiff

• Of or concerning the plaintiff: if a reasonable person would believe that it refers to the plaintiff

• Publication: refers to a communication made negligently or with actual malice (i.e., knowledgeable of falsity or reckless disregard for its truth) to a third party who understands its defamatory nature

• Republication: may satisfy the publication requirement, even if it identifies the original publisher and expresses uncertainty about the truthfulness of the statement.

If the statement is a matter of public concern OR the plaintiff is a public figure, then the plaintiff must prove that the statement is false. If the plaintiff is a private person AND the statement is NOT a matter of public concern, the plaintiff need not prove falsity. However, the defendant may prove truth as an affirmative defense.

Beware of fact patterns in which the publication requirement is NOT met (e.g., when a third party learns about the statement through no fault of the defendant, a third party does not understand the statement to be defamatory, no third party hears the statement).

Libel

Libel is defamation by words, written printed, or otherwise recorded in permanent form. This generally includes radio and television. A libel plaintiff may recover general damages for reputational harm. But in some jurisdictions, under the doctrine of libel per quod, the plaintiff must prove special damages or that the statement fits into a category of slander per se when extrinsic facts are needed to prove that the statement is defamatory.

Slander

Slander is defamation by spoken word, gesture, or any form other than libel. A slander plaintiff must prove:

• Special damages: Someone heard the defamatory comments and acted adversely to the plaintiff (an economic loss is usually involved)

• Slander per se: The defamatory comments accused the plaintiff of (1) committing a crime, (2) conduct reflecting poorly on the plaintiff’s fitness to conduct their business, trade, or profession, (3) having a loathsome disease, or (4) sexual misconduct.

If a statement is true but seems like defamation, consider whether it constitutes IIED or invasion of privacy.

Defamation Defenses

• Truth: Truthful statements are not defamatory

• Consent:

  • Actual: the plaintiff agreed to the publication

  • Apparent: the defendant reasonably believed that the plaintiff agreed to the publication

  • Defendant cannot exceed the scope of consent

• Absolute privileges: Statements made:

  • By a participant in a judicial or legislative proceeding

  • During the performance of official duties by a legislator or executive government official

  • Between spouses concerning a third person or

  • In required publications by radio, television, or newspaper

• Qualified (conditional) privileges: Statements made:

  • In the interest of the publisher (defendant), such as defending the publisher’s reputation

  • In the interest of the recipient of the statement or a third party or

  • Affecting an important public interest

    • The plaintiff must prove that the privilege has been abused and therefore lost.

Invasion of Privacy

• Intrusion Upon Seclusion: The plaintiff must prove that the defendant’s intentional intrusion into the plaintiff’s private affairs was highly offensive to a reasonable person. No publication is required.

• False Light: The plaintiff myst prove that the defendnat made public facts that placed the plaintiff in a false light that would be highly offensive to a reasonable person. This includes attributing views or actions to the plaintiff. For maters of public concern, proof of actual malice is required.

• Misappropriation of the Right to Publicity: The plaintiff must prove an unauthorized appropriation of the plaintiff’s name/likeness for the defendant’s advantage that injured the plaintiff.

• Public Disclosure of Private Facts: The plaintiff must prove that the defendant publicly disclosed private facts (even if true) that would be highly offensive to a reasonable person and are not of legitimate public concern. This tort is disfavored because it is at odds with the First Amendment.

The right to privacy extends only to individuals and terminates upon death. The plaintiff need not prove special damages; emotional distress is enough.

Defense: The defenses of absolute and qualified privilege that apply in defamation actions also apply to privacy actions based on “false light” or “public disclosure of private facts.” Consent is a defense to all invasion-of-privacy torts, but mistake negates this defense. Truth is NOT a defense.

Intentional Misrepresentation

• The defendant knowingly or recklessly misrepresented a material fact, opinion, intention, or law with the intent to induce the plaintiff’s reliance AND

• The plaintiff justifiably relied on the defendant’s misrepresentation and suffered damages as a result.

The plaintiff must prove actual damages because nominal damages are NOT available. Consequential and punitive damages may be awarded. Damages are often limited to the economic loss suffered by the plaintiff. Damages for emotional distress are generally NOT awarded.

Negligent Misrepresentation

• The defendant, in the course of their business or profession, negligently provided false information to the plaintiff

• The plaintiff justifiably relied on the information and suffered pecuniary damages as a result.

The plaintiff must be a member of the limited group for whose benefit the information is supplied. And the plaintiff’s reliance on the information must be in the same (or substantially similar) transaction that the defendant intended to influence or knew that the recipient intended to influence

Standard negligence defenses apply. The plaintiff can recover reliance damages as well as any other consequentially pecuniary damages.

Intentional Interference with a Contract

• A valid contract existed between the plaintiff and a third party (not the plaintiff and the defendant)

• The defendant knew about the contract

• The defendant intentionally interfered in a way that substantially exceeded fair competition and free expression, resulting in a breach AND
  The breach caused the plaintiff damages.

Interference may be justified if:

• The interference was motivated by health, safety, or morals

• The contract was terminable at will or

• The defendant is a business competitor.

Interference with Prospective Economic Advantage

A defendant may be liable for intentionally interfering with a prospective business relationship between the plaintiff and a third party, even in the absence of an existing contract. But when there is NO contract, more egregious conduct is required. The other elements (of interference with a business contract) remain the same, except that the defendant’s conduct must be independently tortious, in violation of federal or state law, or improper as decided by a balancing process. Without wrongful conduct, a business competitor will not be held liable for encouraging a third party to switch business.

Theft of Trade Secrets

The plaintiff must have owned a valid trade secret (i.e., information that provides a business advantage) that was not generally known and taken reasonable precautions to protect it. The defendant must take the secret by improper means.

Trade libel

Malicious publication of false and derogatory statements about the plaintiff’s title to their business property, the quality of their business, or the quality of its products. The plaintiff must suffer special damages as a result of interference with or damage to their business relationships. Truth and fair competition are valid defenses

Slander of Title

The malicious publication of false and derogatory statements about the plaintiff’s title to real property. The plaintiff must suffer special damages as a result of diminished value in the eyes of third parties.

Malicious Prosecution

When a person intentionally and maliciously initiates a legal action for an improper purpose and without probable cause, and the action is dismissed in favor of the person against whom it was brought. Recoverable damages include legal expenses, lost work time, loss of reputation, and emotional distress. Judges and prosecutors are absolutely immune from liability.

To recover from abuse of process, the plaintiff must prove that the defendant committed a willful and improper act while using the legal process to accomplish an ulterior purpose for which the legal process was not designed, causing damages to the plaintiff.

Spotting Torts Issues

What was the Defendant’s Conduct?

• Sale of manufacture of goods:

  • Strict products liability, negligence, breach of warranty

• Speech:

  • Assault, false imprisonment, IIED, NIED, defamation, invasion of privacy

• Abnormally dangerous activity

  • Strict liability

• Fraud or misrepresentation

  • Intentional or negligent misrepresentation

What was the Defendant’s Mental State?

• Malicious:

  • Injurious falsehoods, wrongful use of the legal system

• Intentional:

  • Assault, battery, IIED, false imprisonment, conversion, nuisance

• Reckless:

  • IIED, nuisance

• Negligent:

  • NIED, nuisance, standard of care, special relationships, res ipsa loquitur

What was the Plaintiff’s Harm?

• Physical:

  • Assault, battery, IIED, false imprisonment

• Property:

  • Conversion, trespass

• Emotional:

  • Assault, battery, IIED, NIED, damages for pain and suffering

• Economic:

  • Breach of warranty, slander, intentional misrepresentation

• Reputation:

  • Defamation, wrongful use of the legal system

Do any defenses apply?

• Intentional torts:

  • Consent, self-defense, defense of others, defense of property

• Negligence:

  • Contributory negligence, comparative fault, assumption of the risk

• Defamation

  • Truth privilege