Adaptibar Torts

INTENTIONAL TORTS

mnemonic - ABCFITT

mnemonic - ABCFITT

• Assault

• Battery

• Conversion

• Intentional Infliction of Emotional Distress (IIED)

• Trespass to Land

• Trespass to Chattel

Battery

1. Intent
2. Harmful or offensive contact

Assault

1. Intent
2. Reasonable apprehension of an imminent battery

Trespass to Chattel

1. Intent
2. Interference with use
3. Remedy = Actual damages

Conversion

1. Intent
2. Substantial interference with use
3. Remedy = Value of property at time of conversion

Trespass to Land

1. Intent
2. Physical invasion of land

*Do NOT need to know whose property you are entering
*NO damage has to occur to property

Intentional Infliction of Emotional Distress

1. Intent or recklessness
2. Extreme & outrageous conduct
3. Severe emotional distress

Bystander Rule IIED

1. Close family member
2. Defendant had knowledge
3. Severe emotional distress

Non-Family Member Bystanders IIED

Bystander must suffer PHYSICAL harm

False Imprisonment

1. Intent
2. Confined, bounded area
3. Aware of confinement

Shopkeeper Privilege

1. Reasonable belief
2. Detained in a reasonable manner
3. Reasonable period of time

Negligent Trespass to Land

1. Negligently enter land of another
2. Liable for damage to land

Negligent Infliction of Emotional Distress

1. Negligent conduct
2. Zone of danger
3. Severe emotional distress & physical harm

Bystander Rule NIED

1. Close family member
2. Emotional distress

Mishandling of a Corpse

1. Negligent handling of a corpse
2. NO physical harm required

Transferred Intent

Def. intends to commit a tort, but commits:
1. A different tort or
2. The same tort against a different person

Consent

1. Implied or express
2. Cannot exceed scope of consent

Self-Defense

1. Reasonable belief of attack
2. Reasonable force

Defense of Others

Reasonable belief third party to be attacked

Defense of Property

1. Reasonable force
2. Reasonable belief to stop invasion of land
3. Can NOT use deadly force to defend property

*Can ONLY use deadly force to defend property if there is a threat to personal safety

Private Necessity

Defense to trespass
Liable for damages to property

Public Necessity

1. Preventing public harm
2. NOT liable for damages to property

Negligence Elements

1. Duty - the defendant owed the plaintiff a duty to exercise some degree of care for the plaintiff’s safety;
2. Breach - the defendant breached that duty by his unreasonably risky conduct;
3. Causation - the defendant’s conduct in fact caused harm to the plaintiff;
4. Damages - the plaintiff suffers an injury to their person or property.

Negligence or Intentional Tort?

If Goat is playing baseball and accidentally hits the window of a house just outside the stadium (i.e. right past the home-run mark).

• INTENTIONAL TORTS require acting with purpose or with substantial certainty of an outcome.

  • Even if Goat is trying to hit a home-run and knows there is a small chance he could hit the window, this will FALL SHORT of the substantial certainty level of intent we need for intentional torts.

• NEGLIGENCE depends on where the house is located.

  • If it’s directly outside the park and it’s a small park, then maybe that’s unreasonably risky conduct.

  • If it’s extremely far away, maybe not.

  • Courts are typically unwilling to find negligence in this type of scenario unless someone does something outside the reasonable bounds of the basketball game (like swinging wildly in the wrong direction).

Duty

Owed to foreseeable plaintiffs

“No Duty to Aid” Rule

There is no duty to affirmatively come to the aid of another.

“No Duty to Aid” Rule - Four Exceptions

1. When the Defendant create the risk (even innocently) they owe a duty to aid (warn, help) to avoid further harm;

2. When the defendant has begun to offer aid, he may have a continuing duty to act;

3. When the defendant has engaged in a voluntary undertaking he cannot:

   1. Increase the risk higher than it would have been without the undertaking, or

   2. Cause the plaintiff to detrimentally rely on the undertaking.

4. When the defendant is in a special relationship with the plaintiff they will owe a duty to aid.

The “No Duty to Aid Rule” Exception #1 - Creation of Risk

• If you acted negligently originally, you’re subject to liability for the entire harm caused.

  • Classic and ordinary negligence

  • E.g., If I drive at 200mph and hit you, I’m liable for the whole injury.

• If you acted innocently originally, you’re still liable for the additional harm you created by not taking affirmative steps to minimize the danger or warn others of the danger you created.

  • E.g., If you are driving at a normal speed and hit someone, you cannot just leave them alone. You have to offer reasonable assistance.

• If you are playing golf, and accidentally hit a ball way outside of the court. You can be found negligent if you fail to warn people nearby (unless the warning is totally pointless/won’t help).

Creating Risk of Injury from a Third Person

If the third party knows, or reasonably should know, that their conduct exposes others to an unreasonable risk of harm (i.e., if a person becomes more and more visibly intoxicated) - they should NOT create additional unreasonable risks by serving more drinks to that person, or they could be found negligent.

The “No Duty to Aid Rule” Exception #2 - Beginning to Offer Aid

• If the Defendant begins to give aid, they must do so reasonably.

• If Defendant begins to give aid, then stops - they cannot leave plaintiff in a worse-off position than they were in prior to the intervention or they will be liable to plaintiff for the aggravation of their injuries that the half-ass aid attempt caused.

The “No Duty to Aid Rule” Exception #3 - Voluntary Undertakings

When someone undertakes an action that would increase physical safety for the plaintiff, they are under a duty to use reasonable care to carry out their undertaking if:

1. The plaintiff relies on the undertaking, or

2. The defendant’s failure to exercise reasonable care increased the risk of harm so that it was more than it would have been with no undertaking.

The “No Duty to Aid Rule” Exception #4 - Special Relationships

• Parent-Child

• Common Carrier-Passenger

• School-Pupil

• Innkeeper-Customer

• Jailor-Prisoner

• Employer-Employee

• Doctor-Patient

• Proprietor-Customer

• Landlord-Tenant

• Therapist/Psychiatrist

• Travelers & Roommates

• Social Host-Guest

Social Host-Guest

• No liability for social hosts.

When it comes to alcohol, there are 2 situations:

1. “Cool Dad” situation: the host who serves to minors and then the minors get in a car accident,

2. Vendors (like bars or clubs): who sell to those who are obviously intoxicated or minors and they hurt someone else will be liable and found to have a duty to third parties that get injured.

Parent-Child Relationship

To impose liability for your insane child, we need:

• Specific propensity for danger; AND

• Imminently foreseeable harm.

• If a parent knows their child is dangerous, and can foresee them committing harm, but they can’t reasonably foresee the specific type of harm or the exact time of it, the court won’t impose liability on the parent.

Negligent Entrustment

• A defendant can be held liable if he or she leaves an instrument with a person who the defendant knows or SHOULD know will use it in an unreasonably risky manner.

  • E.g. - allowing a child to use a dangerous object (like a car) when the child lacks the judgment to use it safely.

• Requires: negligence from BOTH the giver and receiver

• The harm must be the type of harm that made the entrustment risky to begin with.

• To be liable for this tort, you must actually currently own the object or automobile when the injury happens.

Bailments

• For example, if you check your coat in at a restaurant, or give your keys to a valet, this gives rise to a duty. The bailee has an obligation to use reasonable care to take care of your property.

• Know - Higher levels of care are owed depending on who is benefitting most from the bailment.

Government

• The government is mostly immune in tort law for official acts

  • E.g., judge’s ruling in a criminal case; a health inspector shutting down a restaurant for kitchen violations; a zoning board’s decision on a new garage; or decisions by police to arrest or not arrest someone

• Not immune when the gov is acting in a propriety capacity.

  • E.g., operating like a business or doing something a private company would normally do

Rescuer

If I do crazy shit and only endanger myself, I am liable to anyone who tries to rescue me and gets hurt, even if I did not foresee a rescue attempt.

Firefighter’s Rule

(also includes police officer’s)

• Ex - You start a huge fire for fun. You end up trapped in the fire. IF a police officer or firefighter rescues you and gets hurt while rescuing you, the police officer or firefighter won’t be able to recover from you in tort.

• However, if an officer is doing a routine patrol or heading home in a police car, and a negligent defendant driving way over the speed limit hits them, then the officer CAN still sue that negligent defendant.

Unborn Children - Wrongful Birth

• Parents bring action

• Parents are saying the Defendant (doctor) was negligent in failing to diagnose or inform them of fetal abnormalities or genetic risks. Had they known, they would have avoided the pregnancy.

• Damages - usually only the extraordinary costs of caring for a child with special needs. NOT the total cost of raising the child.

Unborn Children - Wrongful Life

• Child brings action

• The child is suffering birth defects and painful and debilitating disease. They are saying the doctor should have never allowed them to be born. They are basically saying “why the fuck did you allow me to be born?”

• Damages - almost all courts reject this cause of action. It gets into a weird debate of whether being born fucked up and sick is worse than not being alive at all.

Unborn Children - Wrongful Pregnancy

• Parent

• A physician botched a sterilization procedure. This action centers on the harm of having an unintended pregnancy/birth.

• Damages - Most courts do NOT allow recovery for the cost of raising a healthy child. They allow damages of the cost of the failed sterilization procedure; pregnancy related expenses; pain caused to the mother when delivery child; and emotional distress caused by having an unwanted child.

Standard of Care

Reasonably prudent person

Unknown Trespasser

NO duty of care

Known Trespasser

Warn of KNOWN dangers

Licensee

Social guest
Warn of KNOWN dangers

Invitee

Businesses
Warn, inspect, & make safe

Duty of a Parent

Knew/should have known that child was likely to cause harm

NO General Duty to Rescue, UNLESS:

1. Assumption of duty
2. Special relationship

Special Relationship

Common carrier
Innkeeper/guest
Teacher/student
Employer/employee

Duty of a Child

Other children of same age, experience, & maturity

Duty of a Professional

Similar professionals with the same education, training, & customs

Breach of Duty

Failure to comply with duty of care

Actual Causation

"But for"
Almost always met

Proximate Causation

Foreseeability

Do you need actual or proximate causation?

You need BOTH actual & proximate causation

Damages

Physical injury

Intervening Cause

Foreseeable event
Pay all damages

Superseding Cause

Unforeseeable event
Cuts off liability
Act of God, intentional tort, criminal act

Negligence Per Se

1. Defendant violated statute,

2. The statute was intended to prevent the type of harm suffered by the plaintiff, and

3. The plaintiff is within the class of people the statute is trying to protect

Res Ipsa Loquitur

Creates an INFERENCE of negligence, if:
1. Accident would NOT normally occur unless negligence
2. Def. had EXCLUSIVE control

Attractive Nuisance

Artificial condition causing children to trespass

Elements of Attractive Nuisance

1. Owner knows of child trespassers
2. Unreasonable risk of harm
3. Children can NOT appreciate the risk
4. Cost of remedy is LESS than the danger
5. Owner fails to make safe

Pure Comparative Negligence

Plaintiff's damages reduced by percentage of fault

*Assume you are in a pure comparative negligence jurisdiction, unless facts tell otherwise

Modified/Modern Comparative Negligence

Plaintiff can NOT recover if MORE than 50% at fault

Contributory Negligence

Plaintiff can NOT recover if at fault

Last Clear Chance EXCEPTION

Def. had last clear chance to avoid accident
Def. did NOT do so
Plaintiff can recover

Assumption of the Risk

Must have knowledge
Must appreciate the danger

Joint & Several Liability

2 or more people cause single accident
ALL defendants jointly & severally liable for damages

Contribution

Co-defendants can sue to recoup money

Vicarious Liability

Employer liable for negligent employees
Employees acting WITHIN scope of employment

Independent Contractors - Generally NOT Liable, UNLESS:

1. Abnormally dangerous activity
2. Non-delegable duty

Non-Delegable Duty

Duties that involve safety or benefit of the public

Indemnification

May seek indemnification from whoever actually caused the damage

Strict Liability

1. Possession of wild animals
2. Abnormally dangerous activities

Possession of Wild Animals

Non-domesticated animals
Injury that would normally occur
Domestic animals with dangerous propensities

Abnormally Dangerous Activity

Excavation
Dynamite
Toxic chemicals

Assumption of the Risk

Defense to strict liability
Knew & appreciated the risk

Product Liability

A product breaks or doesn't work properly.

3 causes of action:
1. Negligence
2. Breach of warranty
3. Strict products liability

Product Liability - Negligence

Negligence in the chain caused the product to break or not work

Products Liability - Breach of Warranty

You can bring a breach of warranty claim if the defendant represents that their product is fit for a certain purpose, and then the failure of the product to actually perform as warranted renders it unreasonably dangerous.

Need PRIVITY

• Only the purchaser and their family can sue (and ONLY for personal injuries)

Merchantability

Product acted as it should

Fitness for a Particular Purpose

Product only works for particular purpose

Product Liability - Strict Products Liability

1. Defective Product
2. Sold by commercial seller
3. Foreseeable user
4. Used in manner it was intended

Commercial Seller

A merchant who regularly deals in a certain type of goods.

• Anyone along the distribution line can be held liable.

• The end retailer can go after the manufacturer for indemnification.

• Do not need privity.

• Food is defective if it contains an ingredient that a consumer would not expect - this includes BOTH foreign material AND natural material.

Three Types of Product Defects

1. Manufacturing Defects,

2. Design Defect,

3. Failure to Warn

We also need to prove causation (that if the defect was prevented, the user would have used the product in a way that would have prevented the injury).

Defective Product - Manufacturing Defects

The item was not constructed to the manufacturer’s own specifications, and then the product ended up being dangerous in a way consumers would not expect.

• If proven, you will also have to prove causation to prevail (that the injury to his body would not have happened if the design WAS as intended).

Sellers of component parts are only liable under two situations:

1. If the component itself is defective and the defect cause the harm; or

2. If the seller of the component part substantially participates in the integration of the component and the integration caused the product to be defective.

Defective Product - Design Defects

When the plaintiff is saying that the foreseeable risks of a product could have been reduced or avoided by a RAD - a reasonable alternative design by the manufacturer, and the omission of the design makes the product unreasonable safe.

Elements:

1. A foreseeable risk, and

2. Reasonable alternative design (RAD)

The Reasonable alternative design (RAD) must be:

• safer, and

• practical (can’t make the product difficult to use), and

• cost-effective (same cost or slightly more expensive)

• “The benefits exceeded the risks”

• “The company offers an upgrade to them for a slightly increased price.”

When it comes to government standards…

• If you FOLLOW government standards = this does not mean you are automatically not defective. It’s just SOME evidence toward you not being defective.

• If you DO NOT follow government standards = your product is INSTANTLY DEFECTIVE.

Defective Product - Failure to Warn

The product is manufactured properly but the plaintiff is complaining that the manufacturer failed to give adequate warnings about the danger of the product.

Standard - a product without adequate (“reasonable”) warnings or instructions (of foreseeable risks) is defective.

The Doctrine of Learned Intermediary

(Failure to Warn)

So long as a manufacturer of drugs, medicine or medical devices gives adequate warnings to the physicians that prescribe them - their duty to warn is fulfilled.

Proving Causation

It is not enough that the product is defective, it must be shown that the defect existed when it left the defendant’s control.

• If it is brand new AND purchase through normal supply channels, it is assumed that the defect existed when it left the supplier’s control.

• If it is not purchased through normal channels (like some weird third party seller on Amazon) or used when you bought it, it is much harder to argue for strict products liability standard.

Damages - Strict Products Liability Claim

You have to allege either:

1. bodily harm, or

2. damage to property OTHER THAN THE DEFECTIVE PRODUCT ITSELF.

• CANNOT bring claims for pure economic loss.

• CANNOT bring claims for damage to ONLY the product itself (it has to damage other property).

Defenses to Strict Products Liability

1. Misuse of the product (must be both unintended by the manufacturer and unforeseeable to them)

2. Whether the product was altered after it left the manufacturer (must occur between the time it left the manufacturer and when it was used by the consumer)

3. Assumption of the Risk:

   1. The plaintiff knew about the product defect (they must not only know it is defective, they must also know that it poses a risk of serious bodily injury)

   2. The plaintiff voluntarily proceeded to encounter that danger, even though it was unreasonable to do so.

Private Nuisance

Unreasonable interference with use/enjoyment
Objective standard

Public Nuisance

Unreasonable interference to public
Brought by government official
Private plaintiffs must prove SPECIAL damages

Defamation

1. False statement
2. About plaintiff
3. Hurts reputation
4. Publication
5. Damages

Publication

HEARD & UNDERSTOOD by third person to be about the plaintiff