Torts

battery

• act

• intent

• causation

• harmful or offensive contact

  • known sensitivity

• to a person

assault

• act

• intent

• reasonable apprehension

• of battery OR false imprisonment

• causation

• to a person

transferred intent

an act designed to cause bodily injury to a particular person but hurts another person instead

• intent can transfer to the actual person harmed and transfer between the type of tort

false imprisonment

• act (voluntary)

• intent to confine another within fixed boundaries

• unlawful confinement or restraint

  • accompanied by immediate, physical coercion or threat of it

• person is conscious of confinement or harmed by it

private arrest exception

where a private individual confines a person lawfully; defense to false imprisonment

• felony was committed

• person has reasonable belief that the person they arrested committed the felony

malicious prosecution

• civil or criminal proceeding by D v. P

• termination of legal process in favor of P

  • dropped charges do not count

• malice

• no probable cause

• damage to P

abuse of process

• use of legal process

• against a person

• to accomplish a purpose for which it was not designed

intentional infliction of emotional distress (private figures, private concern)

• outrageous or extreme conduct

• intent or recklessness

• causation

• serious emotional harm

intentional infliction of emotional distress (private figure, public concern)

• outrageous or extreme conduct

• intent or recklessness

• causation

• serious emotional harm

• actual malice

• falsity

intentional infliction of emotional distress (public figures)

• outrageous or extreme conduct

• intent or recklessness

• causation

• serious emotional harm

• actual malice

• falsity

intentional interference with contractual and economic relations

• valid contractual relationship or business expectation

• knowledge

• intentional and improper interference

• causing breach

• resultant damage

intentional interference and political/social contexts

speech must be nonviolent and the content of speech must cover political or social matters

intentional misrepresentation

• material misrepresentation

• knowledge the statement is false or reckless disregard as to its truth or falsity

• maker intends to induce reliance by victim

• justifiable reliance by victim

• monetary damages to P

self defense

• use of reasonable force

• defendant reasonably believed and the belief was

  • actual belief

  • reasonable belief

  • reasonable mistake

• necessary

• to prevent immediate harm

defense of others

• use of reasonable force

• defendant reasonably believed and the belief was

  • actual belief

  • reasonable belief

  • reasonable mistake

• necessary

• to prevent immediate harm to other

consent (defense to intentional torts)

if there is freely given informed consent (express or implied), consent is a defense

• P MUST have consented to D’s specific conduct/action that caused P harm

truth (defense to IIED)

for IIED cases with public figures or private figures with public concern, truth is a defense because you can’t defame someone with a truthful statement

• destroys falsity requirement (the statement must be false because facts say otherwise)

defense of property

ok to use reasonable force to defend uninhabited property

• for inhabited property, defense is self defense

defense of necessity - public necessity

• reasonable belief of imminent danger to greater interest

• do minimal harm to protected interests of P

• victim/owner does not need to be compensated for use of owner’s property

defense of necessity - private necessity

• reasonable belief of imminent danger to greater interest

• do minimal harm to protected interests of P

• D must compensate P for use or any damages that incurred because of use

defense to intentional interference with contractual and economic relations

• competitors

• financial interest (only for business expectation)

• advice (must be requested, solicited)

• responsible for welfare of another

negligence - prima facie case

• duty

• breach

• causation

• scope of liability

• damages

general duty principle

when you act, you owe a duty of reasonable care to foreseeable plaintiffs against foreseeable harms

no duty to act, assist, or rescue

being a bystander and not doing anything to help does not make you liable

exceptions to no duty to act, assist, or rescue

• special relationship

• prior conduct created risk

• instrumentality under D’s control

• assumption of duty

• voluntarily starting to aid

• duty in statute

res ipsa loquitur

used when P is unable to make specific allegations as to how D was negligent

• instrumentality known

• accident would not usually occur without negligence

• instrumentality under exclusive control of D

• P was not at fault

breach - reasonable person standard

failure to prevent injury to another person does not constitute negligence if the precaution would not have been taken by a reasonable person under the same circumstances

hand formula

B < P x L

• burden of implementing precaution

• probability that harm would occur because precaution not taken

• loss: gravity of resulting injury/harm

emergency - exception to reasonable person standard

a situation not of D’s making;

test: reasonable person in like emergency

child standard of care - exception to reasonable person standard

applies when D is a child;

test: reasonable child of similar age, maturity, and experience

exceptions:

• infant D was undertaking an adult activity;

• infant D was undertaking an activity that is inherently dangerous to others;

• infant D was driving a vehicle or using firearm

physical disability - exception to reasonable person standard

test: reasonable person with similar disability

mental illness - exception to reasonable person standard

test: ONLY if Sudden Onset: mental illness was unforeseeable and unavoidable —> reasonable person with similar mental illness randomness

otherwise: mentally-ill are held under a reasonable person standard

negligence per se - exception to reasonable person standard

applies when the P falls within the class that the statue was designed to protect and the harm that the statute was trying to prevent occurred

test:

• is P in the protected group?

• was the harm that occurred the type that the statute was trying to prevent?

• is there any excuse for D?

if statute applies and D violated statute —> duty breached

excuses to negligence per se

even if the statute is the standard of care, there are excuses:

• incapacity: not able to comply with statute

• no knowledge of occasion for compliance

• inability after reasonable diligence to comply

• emergency

• compliance involves a greater risk

professional negligence - exception to reasonable person standard

test: custom - physicians must act with the degree of skill and knowledge normally possessed by members of that profession

• medical malpractice: expert testimony required

• informed consent: diagnosis + nature and purpose of proposed treatment + risk and consequences + probability of success + feasible treatment alternatives + prognosis if proposed treatment is not given

excuses for not obtaining informed consent

• emergency: P is unconscious so consent is not needed to save life

• therapeutic privilege: physician has evidence that disclosing would prevent patient from rationally weighing the decisions

• minors and mentally incompetent: consent from parents or legal guardian

negligence - causation (but for)

but-for: without the breach, would the harm still occur

negligence - causation (substantial factor)

• substitute for but-for; when there are multiple causes, at the same time, contributing to the same harm

• test: D’s negligence was a substantial factor in bringing about the harm

negligence - causation (loss of chance)

applies when chances of survival are less than 50% before harm

• increased harm approach: increased risk of injury or death is enough

• loss of opportunity approach: loss of chance of survival is the injury

• traditional approach: no causation and P loses

negligence - causation (alternative liability)

• P sues all of multiple actors

• proves that each D engaged in tortious conduct

• that exposed P to risk of harm

• and tortious conduct harmed P

• but P cannot reasonably prove which actor caused the harm

so burden shifts to Ds

negligence - causation (concerted action)

all the Ds encouraged/aided each other for one act that caused harm to the P

• the P can recover full amount of damages from either D

negligence - causation (concurrent tortfeasors)

Ds concurrent but separate acts brought about the same harm to the P

• acts do not have to be simultaneous, only that it contributed to P’s same injury

negligence - causation (market share liability)

when there are multiple Ds who don’t know which particular D caused the harm, each D is liable for the portion of the judgment represented by its share of the market unless D demonstrates that it could not have been responsible

negligence - scope of liability

test: foreseeability

• was the P foreseeable

• was the injury/harm that occurred foreseeable

• were there any superseding, intervening causes

  • if unexpected and unforeseeable - no proximate cause

  • if foreseeable - yes proximate cause

medical complications rule - exception to scope of liability foresight

subsequent negligence by medical personnel does NOT cut scope; it is foreseeable as a matter of law

rescuer rule - exception to scope of liability foresight

rescue foreseeable as a matter of law

• if D’s negligence creates a dangerous situation, they are liable for injuries sustained by a third party attempting to rescue the person in peril

• danger invites rescue

eggshell skull rule - exception to scope of liability foresight

D is liable even if P is especially vulnerable or has a preexisting condition

• damages may be adjusted for preexisting condition

rowland factors (whether to create new limit on duty)

• foreseeability of harm to P

• certainty that P suffered injury

• closeness of the connection between D’s conduct and injury suffered

• moral blame attached to D’s conduct

• policy of preventing future harms

• burden to D for exercising care

• consequences to community of imposing a duty to exercise care

• availability and cost of insurance

parent and child exception: no duty to protect against crime (limit on duty)

exception 1: parent and child

• parent has a duty to exercise control over minor child when: victim is reasonably foreseeable and harm to others is reasonably foreseeable

Tarasoff exception: no duty to protect against crime (limit on duty)

exception 2: Tarasoff

• if a ___ has:

  • special relationship with perpetrator

  • determined/should have determined that perpetrator is a danger to others

  • foreseeable victim

    • clearly identifiable or just foreseeable

• then duty of reasonable care or to warn

public agency exception: no duty to protect against crime (limit on duty)

exception 3: public agency

• police has a duty to a specific person when:

  • special relationship with victim or perpetrator

    • victim: specific promise and victim’s justifiable reliance

  • creating the risk

  • actively starting to aid

landowner exception: no duty to protect against crime (limit on duty)

landowners have a duty to protect against crime if there is a duty of due care and heightened foreseeability

• specific harm (minority): no duty unless owner knew or should’ve know that the harm suffered was likely to result

• prior similar incidents: how many people (over what period of time)? and how similar?

• totality of circumstances: condition and location of land, prior similar incidents, knowledge/potential knowledge of specific crime, other factors

• balancing test: more foreseeable the harm, the more burden on D

emotional distress from physical risks/near miss exception: no duty to avoid emotional harm (limit on duty)

exception 1: emotional distress from physical risks/near miss

• situation: you were put at risk but not physically harmed

• rule: zone of physical danger — was P within the zone at risk?

bystander liability exception: no duty to avoid emotional harm (limit on duty)

exception 2: bystander liability

• test 1: zone physical danger: relative can recover if they were in the zone of danger

• test 2: Dillion: duty if injury reasonably foreseeable

  • injury is foreseeable if: nearness to accident, direct sensory observation, relationship to victim

• test 3: Thing: duty only if:

  • P is closely related to victim

  • P was present at the scene and aware of injury

  • P suffers severe emotional distress that is not an abnormal response to the circumstances

landowners (limit on duty) - trichotomy

1. invitee: express/implied consent and business dealings with owner OR public building

2. licensee: express/implied consent of owner to come as a social guest → duty of warning against/fixing known hidden traps and no willful/wanton injury

3. trespasser: no express/implied consent of owner →

   1. unanticipated: no willful/wanton injury

   2. anticipated: warning/fixing of artificial/hidden traps known to owner and no willful/wanton injury

   3. child trespassers: duty if

      1. attractive nuisance

      2. restatement 339

child trespassers (trichotomy) - attractive nuisance

children see

• artificial condition

• hazardous

• unfenced

• unhidden

• attracts child

child trespassers (trichotomy) - restatement 339

• artificial condition

• possessor knows/has reason to know: children are likely to trespass and of dangerous condition

• unreasonable risk (death/serious bodily harm) to children

• children, because of youth, do not discover condition/realize the danger

• utility is slight v. the risk to children

• possessor fails to exercise reasonable care to protect children

landowners (limit on duty) - Rowland approach

general duty of due care to entrants on the land

gratuitous assumption of duty

people can gratuitously assume duty but there has to be some evidence that the duty was actually assumed

contributory negligence

all or nothing

• finding of 1% to 99% of fault by P results in zero recovery for P

comparative negligence

recover for P is adjusted based on P’s fault percentage

1. pure comparative: damages are awarded based on the percentage of P’s resonsibility

2. modified comparative: P can only recover damages if their fault is below 50%; if P’s fault is more than 50%, P gets nothing

elements for contributory/comparative negligence

assume duty and damages:

• breach: did P behave unreasonably towards themselves?

• causation: did P’s breach cause P’s harm?

• scope: is harm within scope of liability from P’s breach?

implied assumption of risk (defense to negligence)

1. subjective knowledge and appreciation of the risk

2. voluntary exposure to risk

express assumption of risk (defense to negligence)

P’s waivers of liability are binding unless:

• D’s act was beyond negligence

  • recklessness

  • intentional

  • P can assume the risk of D’s negligence only if the waiver is expressly clear that P is ok with D’s negligence

• language was unclear: lack of clarity interpreted against the drafter

• public policy: courts find it so unfair that they invalidate it

  • factors: type of business suitable for public regulation, essential service, general service, advantage in bargaining strength, standardized contract, control: transaction places buyer under control of seller

primary assumption of risk (defense to negligence)

participants/spectators in sports/thrill-seeking activities cannot recover for risks inherent to that sport; including another’s negligence that is expected

• firefighter rule: most jurisdictions see firefighters and police officers as having assumed risks inherent to the job including negligence

factors to see if it’s a nuisance

• location of claimed nuisance

• character of the neighborhood

• nature of the alleged nuisance

• frequency of intrusion

• effect on plaintiff’s enjoyment of life, health, and property

public nuisance

an unreasonable interference with a right common to the general public

• public right: conduct involves significant interference with public health and safety and conduct of continuing nature or has produced long-lasting and significant effect upon the public right

private nuisance

a nontrespassory invasion of another’s interest in the private use and enjoyment of land. must be either:

• intentional and unreasonable OR unintentional and caused by negligent, reckless, or abnormally dangerous conduct AND

• causes significant harm to health and comfort of ordinary person in same circumstances

absolute nuisance

inherently injurious and cannot be conducted without damaging someone else’s land

qualified nuisance

a lawful act that is so negligently or carelessly done as to have created an unreasonable risk of harm which in due course results in injury to another

remedies for nuisance

• immediate injunction

• future injunction

• compensated injunction

• permanent damages

balancing the equities

• refuse an injunction when hardship caused to D outweigh benefit to P

• grant an injunction when benefit resulting to P would outweigh hardship to D

strict product liability

when a product you place on the market, knowing that it will be used without inspecting for defects, proves to have a defect that causes injury to the buyer → may be liable

manufacturing defect

does product deviate from intended design because something happened during manufacturing/production?

• Test: strict liability: compare to intended design

• Test: if product is destroyed → Res Ipsa

design defect

product has an error in its design or blueprint

1. consumer expectation test

2. risk utility test

3. alternative design analysis

consumer expectation test - design defect

product is defective and unreasonably dangerous compared to what an ordinary consumer who purchases it would expect when used in an intended or reasonably foreseeable manner

risk utility test - design defect

benefit of the design does not outweigh the risk of danger inherent in the design

• factors:

  • gravity of danger posed by challenged design

  • likelihood that danger will occur

  • mechanical feasibility of a safer design

  • financial cost of improved design

  • adverse consequences to the product and to the consumer that would result from an alternative design

warning defect

when there is bad/unclear/no warning label

• test: there must be inadequate warning

non-economic damages

• pain and suffering

• loss of enjoyment of life

economic damages

• past/future medical expenses

• past/future lost wages

• collateral rule: damages are not discounted even if they are already covered by other sources, such as medical or life insurance; does not count as double damage

punitive damages

• does NOT apply to regular negligence cases

• applies: intent, recklessness, gross negligence (intentional torts)

test for punitive damages

1. degree of reprehensibility of D’s misconduct

   1. physical v. emotional harm

   2. indifference/disregard of health and safety of others

   3. target vulnerable?

   4. repeated actions against same P vs. isolated incident

   5. malice/deceit v. accident

2. disparity between compensatory/punitive damages

   1. inverse relationship: high compensatory, low punitive

3. punitive damages vs. civil/criminal penalties

   1. higher the criminal or other civil penalties, the higher the punitive damages can be

vicarious liability

employee acting within scope of employment unless motivated by personal malice not engendered by the employment

employee v. independent contractor

employee: fixed hours, under company direction, supplies provided

independent contractor: short employment, own supplies, more agency

joint and severally liable

each D is on the hook is liable for the entire amount if other Ds are unavailable or absent

• traditional: equal division between multiple Ds

• comparative fault: allocate percentages; if one D cannot pay, that D doesn’t pay their percentage of P’s compensation

• situations when multiple Ds = tortfeasors

  • concerted action

  • concurrent tortfeasors

  • vicarious liability