Torts I & II Review

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Battery

A prima facie case of battery requires the intent to make a contact, conduct that causes such a contact, and that contact must be harmful or offensive.

Battery (intent)

Intent can be satisfied either by desire and purpose to make contact or with substantial certainty contact is going to occur

Battery

A prima facie case of battery requires the intent to make a contact, conduct that causes such a contact, and that contact must be harmful or offensive.

Battery (intent)

Intent can be satisfied either by desire and purpose to make contact or with substantial certainty contact is going to occur

Battery (harmful or offensive)

a harmful touching would encompass a touching that causes pain or bodily damage; or offensive touching is contact that offends a reasonable person’s sense of dignity

Battery (contact)

The contact can be direct or indirect and includes contact with an object closely identified with the plaintiff’s body

Assault

Assault is the intentional causing of an apprehension of an imminent, and harmful or offensive, contact.

Assault (intent)

Intent can be satisfied either by desire and purpose or with knowledge of substantial certainty. For assault, the defendant can intend to cause apprehension of an imminent touching, or intend to make contact

Assault (causing apprehension of)

The plaintiff must be put in immediate apprehension of an imminent, and harmful or offensive touching. Thus, the plaintiff must be aware of the threat.

Assault (imminent)

The defendant must have the apparent present ability to carry out the threat

Assault (harmful or offensive)

a harmful touching would encompass a touching that causes pain or bodily damage; or offensive touching is contact that offends a reasonable person’s sense of dignity

Intentional Infliction of Emotional Distress

The intentional or reckless infliction of severe emotional or mental distress caused by the defendant’s extreme and outrageous conduct

Intentional Infliction of Emotional Distress (intent)

Intent can be satisfied by Desire and purpose to cause emotional distress; or With knowledge with substantial certainty that emotional distress will result; or With reckless disregard of the high probability emotional distress will occur.

IIED (severe emotional distress)

The emotional distress suffered by the plaintiff must be severe, though bodily harm is not required

IIED (Extreme and Outrageous)

Conduct that is beyond all possible bounds of decency

IIED Third Person Liability

Occurs where the defendant intentionally or recklessly directs extreme and outrageous conduct at someone other than person X. The plaintiff can recover for IIED if:

The plaintiff was physically present and known by the defendant to be present, and is a close relative to person X; or

Plaintiff was physically present and known by the defendant to be present, and the plaintiff suffers bodily harm as a result of the severe emotional distress

False Imprisonment

Occurs where the defendant intentionally causes the plaintiff to be confined, restrained, or detained to a bounded area with no reasonable means of escape, of which the plaintiff is either aware or harmed.

False Imprisonment (Intent)

Intent can be satisfied either by desire and purpose or with knowledge with substantial certainty

False Imprisonment (Confined, Restrained, Detrained)

There must be actionable confinement. Actionable confinement can be in the form of actual or apparent physical barriers, overpowering force, submission to physical force, submission to a threat to apply physical force, submission to duress other than threats of physical force, or asserted legal authority

False Imprisonment (Awareness)

Plaintiff must be aware of confinement or have suffered harm as a result of the confinement.

Trespass to Land

The intentional physical invasion of the land of another.

Trespass to Land (intent)

Can be satisfied by the desire and purpose to voluntarily invade the land of another. However, the defendant need only intend to invade the land he actually invades, he need not intend to invade the land of another so a mistake as to land ownership will not provide a defense

Trespass to Land (Physical Invasion)

Does not require that the land be harmed by the invasion. Physical invasion includes: Entry onto another’s land without permission; Remaining upon the land without the right to be there; or Placing or projecting an object upon the land without permission

Trespass to Chattels

Intentional interference with a person’s use or possession of a chattel.

Trespass to Chattels (Intent)

Can be satisfied by the desire and purpose to interfere with the chattel of another. However, the defendant need only intend to interfere with the chattel in the manner he does, so a mistake as to chattel ownership will not provide a defense

Trespass to Chattels (interference with use or possession)

Due to the defendant’s conduct, the chattel owner is prevented from using or possessing their chattel. Typically, this will be for a temporary time period

Trespass to Chattels (Damages)

The measure of damages is the chattel’s loss of value caused by the loss of use

Conversion

An intentional interference with the plaintiff’s possession or ownership of property that is so substantial that it warrants requiring the defendant to pay the property’s full value

Conversion (intent)

Can be satisfied by the desire and purpose to interfere with the chattel of another. However, the defendant need only intend to interfere with the chattel in the manner that he does, so a mistake as to chattel ownership will not provide a defense. Transferred intent cannot be used to satisfy the intent element.

Conversion (substantial interference with use or posession)

The interference with the chattel is so substantial that it warrants the defendant to pay the chattel’s full value.

Conversion (damages)

The measure of damages is the chattel’s market value at the time of conversion

Consent Umbrella Definition (defense to intentional tort)

Plaintiff consents to defendant’s conduct. Consent can be express or implied. Consent may not go beyond the scope of the consent given

Actual Consent (defense to intentional tort)

An exception exists when it would be unreasonably burdensome for the defendant to immediately comply with the revocation.

Implied Consent (defense to intentional tort)

Under prevailing social norms, the defendant is justified in engaging in the conduct in the absence of the plaintiff’s actual or apparent consent. (Reasonable person standard)

The defendant had no reason to believe that the plaintiff would not have actually consented to the conduct if the defendant had requested the plaintiff's consent.  

Self Defense (defense to intentional tort)

A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact, and any threatened confinement or imprisonment. Use of deadly force is only allowed if the defendant is in danger of death or serious bodily harm. Defendant may only use the degree of force necessary to prevent the threatened harm.

Defense of Others (defense to intentional tort)

A person may use reasonable force to defend another person when he reasonably believes that the other person could have used force to defend himself. Use of deadly force is only allowed if the defendant is in danger of death or serious bodily harm. Defendant may only use the degree of force necessary to prevent the threatened harm.

Defense of Property (defense to intentional tort)

 A person may use reasonable force to defend his real or personal property. Defendant must first make a verbal demand that the intruder stop, unless it reasonably appears that it would be futile or dangerous. Defendant may only use deadly force if non-deadly force will not suffice and the defendant reasonably believes that without deadly force, death or serious bodily harm will result.

RECAPTURE OF CHATTELS

A property owner has the general right to use reasonable force to regain possession of chattels taken by someone else. The property owner must be in fresh pursuit and deadly force is NOT allowed in the recapture of chattels.

SHOPKEEPER’S PRIVILEGE

Shopkeepers have a privilege to temporarily detain individuals whom they reasonably believe to be in possession of shoplifted goods.  Force used must be reasonable. Detention must be for a reasonable amount of time

NECESSITY

A person may interfere w/ the real or personal property of another when it is reasonably and apparently necessary to prevent great harm to third persons or the defendant himself

PUBLIC NECESSITY

Applies when the threatened harm was to the community at large or to many people. Should property be damaged by the public necessity, no compensation is owed.

PRIVATE NECESSITY

Applies when a person acts to prevent injury to himself or his property, or the person or property of another. Should damage to the property result from the private necessity, the defendant must pay for any damage.

Negligence Prima Facie Case

Defendant’s conduct imposes an unreasonable risk upon another, which results in injury to that other person. Negligence occurs when the defendant’s conduct falls below the standard of care of a reasonable person under the circumstances. Plaintiff must prove duty, breach, actual cause, proximate cause, and damages.

General Standard of Care

A person has a duty to act as a reasonable, prudent person would under similar circumstances

Minors Standard of Care

The children's standard of care is that of like age, intelligence, and experience. Children will be held to a child’s standard of care but are liable under an adult standard of care when engaging in adult activities.

Professional Standard of Care

The professional standard of care is the conduct that an ordinary member of the profession would engage in under the same or similar circumstances.

Common Carrier Standard of Care

Common carriers are held to a higher standard of care

Negligence Per Se

A doctrine that establishes duty and breach if a statute prohibits the defendant’s conduct and the defendant violated that statute. Negligence per se applies and a person has a duty to follow a statute if the statute provides for criminal or regulatory penalties, the plaintiff is within the class of persons the statute is designed to protect; and the statute is designed to guard against the type of risk or accident suffered by the plaintiff

Who is the duty owed to?

Under the Cardozo majority rule, a duty is owed to those in the zone of danger. Those in the zone of danger are foreseeable plaintiffs. Under the Andrews minority rule, the duty is owed to everyone.

Breach

A person breaches when they fail to conform to the standard of care.

Actual Cause

Actual cause if D’s conduct is a “substantial factor,” and D is a substantial factor if, but for the D’s conduct, plaintiff’s harm would not have occurred.

Proximate Cause

D is the proximate cause of the P’s injury if P’s injury is the natural and expected result of the D’s conduct. Remoteness and foreseeability of the injury are determining factors. Intervening acts will become a superseding act and cut off causation/liability if the intervening act was unforeseeable.

Damages (Negligence)

P must suffer actual damages. Nominal damages are not recoverable.

Vicarious Liability

Vicarious liability is a form of liability in which one person is liable for the tortious actions of another. Vicarious liability is imposed based on a special relationship between the tortfeasor and the person found vicariously liable.

Respondeat Superior

A theory of vicarious liability focused on providing a means for liability when there is an employee/employer relationship involved. It allows a plaintiff to recover from an employer based on an employee’s actions within the scope of employment.

Employees (vicarious liability rule)

An employer will be vicariously liable for the tortious actions of an employee who is acting within the scope of employment. Conduct within the scope of employment includes acts that the employee is employed to perform or that are intended to profit or benefit the employer.

Frolic

Unauthorized, substantial deviation from work

Detour

Minor, permissible, slight deviation from work

What is the rule for intentional torts of employees?

Generally, an employer is not vicariously liable for the intention torts of employees except when force is inherent in the work or if the employer authorizes the employee to act on their behalf, and the employee’s position provides the opportunity to commit an intentional tort

Independent Contractors

Generally, employers are not vicariously liable for the tortious actions of an independent contractor.

Employee (what makes them not an independent contractor)

An employer has the right to control the means and methods by which an employee performs work

Independent Contractors (What makes them not an employee)

Employers don't have the same level of control over how independent contractors perform their work, compared to employees.

Non-Delegable Duties

A person who hires an independent contractor is vicariously liable for certain conduct: Abnormally dangerous activities, Inherently dangerous activities, Non-delegable duties arising out of a relationship with a specific plaintiff or the public, the duty of a storekeeper or other operator of premises open to the public to keep such premises in a reasonably safe condition, and In a minority of jurisdictions, the duty to comply with state safety statutes

Apparent Authority

A person who hires an independent contractor is vicariously liable for physical harm under “apparent authority” if: The services are accepted in the reasonable belief that the person or the person’s employees are rendering the services, and The independent contractor’s negligence is the factual cause of harm to one who receives the services, and such harm is within the scope of liability

Joint Venture/Enterprise

Participants in a joint venture or enterprise will be vicariously liable for the tortious conduct of other participants. A joint enterprise occurs when individuals or entities collaborate for a common purpose and have a mutual right of control over the activity.

Negligent Entrustment (Car Owners)

The owner of a vehicle may be liable for the negligent acts of a driver whom the car owner knew or should have known the user’s negligent propensities.

Family Purpose Doctrine

The family car doctrine places liability on the owner of a vehicle for negligent operation by a person using the vehicle with the express or implied consent of the owner for purposes of the business or pleasure of the owner’s family. The owner is not liable for his own negligence; he is vicariously liable for the tortious acts of the driver. To be liable, the head of the household need not own the vehicle, but must furnish it for the use, pleasure, and business of himself or a member of the family.

Imputed Negligence

Under the “controversial doctrine of imputed negligence,” the negligence of one individual may be imputed to another who was otherwise not at fault. Minority of jurisdictions apply “imputed negligence” as  a form of vicarious liability if the owner is the passenger while the driver engages in tortious conduct.

Owner Liability

Some states have enacted legislation that attaches vicarious liability to a car owner for the tortious conduct of anyone driving the car with permission.

Strict Liability (umbrella)

The defendant may be liable even if they did not act intentionally or even if they did live up to the standard of reasonable care. A prima facie case for strict liability requires an absolute duty to make the plaintiff’s person or property safe, actual and proximate cause, and damages. The three general situations in which strict liability is imposed are dangerous activities; animals; and defective or dangerous products.

Wild Animals Rule

An owner or possessor of a wild animal will be strictly liable for injuries caused by a wild animal’s dangerous propensities no matter how much precaution is taken on the part of the owner or possessor to prevent injury. The defendant need not own the animal, but must be in legal possession and control of it

What is a wild animal?

Wild animals are those which are not traditionally and by custom devoted to the service of humankind in the place where it is being kept.

Domestic Animal Rule

An owner or possessor is not strictly liable for injuries caused by domestic animals unless they have knowledge of that animal’s dangerous propensities. An owner is strictly liable for reasonably foreseeable damage done by their trespassing animal. The defendant need not own the animal, but must be in legal possession and control of it

What is a domestic animal?

Domestic animals are those which are traditionally and by custom devoted to the service of humankind in the place where it is being kept

Ultrahazardous/Abnormally Dangerous Activity Rule

A defendant will be strictly liable for harm caused by their engaging in an ultrahazardous/abnormally dangerous activity.

To determine if an activity is ultrahazardous/abnormally dangerous, consider the factors:

Existence of a high degree of risk of harm to the person, land or chattels of others; Likelihood that the harm that results from it will be great; Inability to eliminate the risk by the exercise of reasonable care; Extent to which the activity is not a matter of common usage; Inappropriateness of the activity to the place where it is carried on; and Extent to which its value to the community is outweighed by its dangerous attributes

Public Nuisance

A public nuisance is an unreasonable interference with a right common to the general public. A plaintiff can only recover if they suffer an injury that is different in kind from that suffered by the general public while engaging in the right common to the general public that is being affected by the defendant’s conduct

The following factors may be used to determine whether interference with a public right is unreasonable:

Whether the conduct involves a substantial interference with a public health, safety, peace, comfort, or convenience, The degree to which the utility of the conduct outweighs the interference, Whether the conduct is proscribed by the statute, ordinance, or regulation, Whether the conduct is of a continuing nature or has produced long-lasting effects

Private Nuisance

A private nuisance is a non-trespassory invasion of another’s interest in the private use and enjoyment of land which is substantial and unreasonable.

What is substantial interference? (private nuisance)

Interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of the plaintiff’s hypersensitivity or specialized use of their own property.

What is unreasonable? (private nuisance)

To be unreasonable, the severity of the inflicted injury must outweigh the utility of the defendant’s conduct.

What are the Products Liability Theories

Intent, negligence, breach of warranty (express breach, implied breach of merchantability, implied breach of fitness for a particular purpose), strict products liability (manufacturing defect, design defect, warning defect).

Products Liability: Intent

A defendant will be liable to anyone injured by an unsafe product if the defendant intended the consequence or knew that they were substantially certain to occur.

Breach of Express Warranty

An express warranty is a guarantee made by a defendant in the chain of distribution regarding the product that is part of the basis of a bargain.

Implied Warranty of Merchantability

When a merchant who deals in certain kind of goods sells such goods, there is an implied warranty that they are merchantable.

What is merchantable?

Means that the goods are of a quality equal to that generally acceptable among those who deal in similar goods and are generally fit for the ordinary purposes for which such goods are used.

Implied Warranty of Fitness for a Particular Purpose

An implied warranty of fitness for a particular purpose arises when the seller knows or has reason to know: The particular purpose for which the goods are required, and That the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods

Manufacturing Defect

A manufacturing defect is a deviation from what the manufacture intended the product to be that causes harm to the plaintiff. Products with manufacturing defects are defective because of some characteristic that is different than others in a line of that product, usually as the result of faulty workmanship or defective materials. The test for the existence of such a defect is whether the product conforms to the defendant’s own specifications

Design Defect

Design defect exists when all products of a line are the same and they all bear a feature whose design itself is defective and unreasonably dangerous.

Depending on the jurisdiction, courts apply either the consumer-expectation test or the risk-utility test to determine whether a design defect exists.

Consumer-Expectation Test

A product’s performance must meet the minimum safety expectations of its ordinary users when used in a reasonably foreseeable manner.

Risk-Utility Test

In a majority of jurisdictions that use this test, the plaintiff must prove that a reasonable alternative design was available to the defendant, and the failure to use that design has rendered the product not reasonably safe. The alternative design must be economically feasible.

Failure to Warn

Failure to warn defect exists if:

There were foreseeable risks of harm, not obvious to an ordinary user,

The defendant had actual or constructive knowledge of those risks (he defendant is allowed to introduce evidence that the risk was either unknown or unknowable), The risks would have been reduced or avoided by providing reasonable instructions or warnings, or The defendant failed to provide adequate warnings or instructions to reduce or avoid those risks

Defamation

Defamatory language published to a third party of and concerning the plaintiff with damages to the plaintiff’s reputation. If the statement is a matter of public concern, further analysis is needed.

Defamatory Language

A statement contains defamatory language if it would harm the plaintiff’s reputation.

Publication

Publication is any kind of communication by any method when it is communicated to one or more people, other than the plaintiff, that can be understood. The single publication rule for libel states that the publication of defamatory matter only gives rise to one cause of action, no matter how many times the publication occurs, and occurs at the time of the original publication

Of and Concerning the Plaintiff

Defamatory statements must relate to the plaintiff, such that a reasonable person would know the statements were about the plaintiff.

Damages

Damages refer to the harm to a person’s reputation and the consequences of deterring people from associating with them. Slander is spoken communication while libel is written or recorded communication. For libel, general damages are presumed and there is no need to prove special damages. For slander, special damages must be proven unless it is slander per se. Slander per se is defamatory on its face and does not require special damages; the common types of slander per se are: adverse impact on business trade or profession, loathsome disease, guilty of a major crime, serious sexual misconduct, or unchaste/indecent woman.

Therefore, there are sufficient damages. Accordingly, the prima facie requirements for defamation are met. However, if this is a matter of public concern a further analysis is needed.

Matter of Public Concern

When the statement is a matter of public concern, public officials or figures and private individuals must prove the falsity of the statement. To determine if a matter is of public concern, the courts will look at the context, the form, and the content of the statement.

Public Official or Figure

A public official is one who has or appears to the public to have substantial responsibility for or control over the conduct of government affairs. A public figure is one who has achieved such pervasive fame or notoriety that they become a public figure for all purposes and contexts, or where they voluntarily assume a central role in a particular public controversy and become a public figure for that limited range of issues. If the plaintiff is either a public official or a public figure, then the plaintiff is required to prove actual malice.

Private Individual

If the plaintiff is a defamation action is a private person and the defendant’s statement involves a matter of public concern, then the plaintiff is constitutionally required that the defendant act with fault — either negligence or actual malice. If the plaintiff is a private person and the defendant’s statement does not involve a matter of public concern, the addition constitutional requirements do not apply.

Actual Malice

Actual malice is the knowledge that the statement is false or acting with reckless disregard of whether it is false or not. The test for recklessness requires there to be sufficient evidence to permit the conclusion that the defendant entertained some serious doubts as to the truth of the statement. Mere failure to check facts is not sufficient.