Torts

Intentional tort elements

voluntary act

intent(general or specific)

• specific: desire to cause result

• general: substantially certain result will occur

causation

transferred intent

intent to harm is transferred if: 1) Intent to commit a tort against one person; AND 2) Either: a) Commits a different tort against that person; OR b) Another person is injured.

applies to battery, assault, false imprisonment, trespass to land, trespass to chattel

list of intentional torts

1. assault: intentional act that causes reasonable apprehension of harmful or offensive contact

2. battery: intentionally harmful or offensive contact with p person

3. IIED: intentional or reckless conduct that’s so extreme and outrageous and causes P to suffer severe emotional distress(liable to third party if they were present and D intended them to hear or see)

4. false imprisonment: intent to restrain P to fixed boundaries where there’s no reasonable means of escape and P is aware of confinement or harmed by it

5. trespass to land: intent to either enter or remain on land OR making objects or a third person go on the land

   trespass to chattel: intent to interfere with personal property of another AND damage is small

6. conversion: intent to interfere with personal property of another AND damage is substantial ( full market value of property)

Intentional tort defenses

1. necessity: defense if necessary to prevent serious harm to a person or property

2. shopkeeper privilege: can temporarily detain a person reasonably suspected of theft in or near their store for purpose of investigation

3. consent

4. self defense/defense of others: D reasonably believed P was going to harm D or another; AND 2) Used reasonable

5. defense of property: may use reasonable force to defend property but not deadly force

6. recapture of chattel: Owner may take prompt action & use reasonable, non-deadly force to recover chattel from a wrongdoer.

Negligence elements

1. duty

2. breach of duty

3. causation) actual and proximate cause)

• superseding intervening cause: not deemed unforeseeable and D not liable

1. damages(harm)

No duty to act unless

a) Special pre-existing relationship;

b) D put P in peril;

c) Already undertaken to rescue P (but liable only if it increases risk of harm or harm is suffered because of reliance on the person providing help); OR

d) Duty imposed by law.

Different standards of care

1. Generally: Must act as a reasonable prudent person would act under the circumstances.

2. child: Must act as a child of similar age, experience, & intelligence would act under the circumstances, unless in adult activity

3. professionals: Must act with knowledge & skill of an average member of that profession (or specialty) practicing in a similar community. ■ Medical Doctor → Apply national standard.

Landowner duties

1. invitee: same as licensee AND make reasonable inspections & make safe non obvious dangerous conditions.

2. licensee: reasonable care and must warn of known dangerous conditions

3. known trespasser: reasonable care and warn of known dangerous artificial conditions

4. unknown trespasser: no duty

5. attractive nuisance: duty to child trespassers, and D is liable -

   • Knows (should know) of a dangerous artificial condition;

   • Knows (should know) children are likely to frequent the area;

   • Children unlikely to discover condition or appreciate risks; AND

   • Risk of harm outweighs the expense to make condition safe.

Negligence per se

• The statute or regulation must clearly define the required standard of conduct 

• The statute or regulation must have been intended to prevent the type of harm the defendant's act or omission caused 

• The plaintiff must be a member of the class of persons the statute or regulation was designed to protect 

Res Ipsa Loquittor

1) Type of injury typically doesn’t occur in absence of negligence; AND 3) Negligence was within scope of duty D owed to P.

negligent infliction of emotional distress

D’s negligence,

2) Creates a foreseeable risk of physical injury,

3) P is in zone of danger, AND

4) P has physical symptoms.

Negligence defenses

1. pure comparative negligence

   1. P’s negligence will reduce damages recoverable by the percentage of fault.

2. contributory negligence

   1. claim is barred if P contributed to injury

3. assumption of the risk

   1. is a defense if P voluntarily assumed a known risk

Respondent superior

Employer IS LIABLE for an employee’s negligent acts when acting within the scope of employment.

Intentional torts usually outside scope of employment except if act was

a) Specifically authorized by employer; b) Driven by a desire to serve employer; OR c) Result of natural friction from type of employment.

HOWEVER WILL BE LIABLE if nondelegable duty

employer has no liability for independent contractor unless inherently dangerous activity, estoppel, non-delegable duty

true

Joint and several liability

If multiple Ds are proximate cause of a single indivisible harm, P may recover ENTIRE damages amount from any Defendant.

Defamation definition and types

Defamation is 1) False Defamatory Statement (harms P’s reputation); 2) Of And Concerning P; 3) Publication; AND 4) Damages.

1. slander: oral defamation, prove special damages

2. libel: written defamation

3. slander per se: things such as crime of moral turpitude; defamation just based on the words

If a public official or public figure, MUST prove actual malice

Defamation defenses

1. absolute privileges: Is a complete defense & applies to statements made: a) In judicial proceedings; b) Between spouses; c) By executive branch officials; OR d) During legislative proceedings.

2. qualified privileges: applies if Statement has conditional privilege, AND 2) Privilege isn’t abused (no malice).Privacy

Privacy Torts

1. misappropriation: using P name for commercial advantage; newsworthiness is a defense

2. false light: D causes widespread dissemination, 2) Of P’s beliefs, thoughts, or actions, 3) In a false light, 4) That’s highly objectionable to a reasonable person

3. intrusion of privacy: D intrudes into P’s private affairs; 2) P has a reasonable expectation of privacy; AND 3) Intrusion is highly objectionable to a reasonable person.

4. public disclosure of private facts: 1) D caused widespread dissemination, 2) Of truthful private information, 3) That’s highly objectionable to a reasonable person.

Misrepresentation/Fraud

When a party: 1) Makes a false representation (if knowingly made = fraud), 2) Of material fact, AND 3) Other party reasonably relies to their detriment.

Malicious prosecution vs. Wrongful civil proceedings

1. malicious prosecution

   1. case initiated for improper purpose, case not supported by probable cause, and P suffered damages

2. wrongful civil proceeding: same elements as malicious prosecution

Nuisance

1. public nuisance

   1. Unreasonable interference, 2) With health, safety, or property rights, 3) Of the community. Actual damages is required.

2. private nuisance

   1. Substantial & unreasonable interference, 2) With a P’s use or enjoyment of property, 3) That’s offensive, inconvenient, or annoying to a reasonable person.

strict liability applies to

1. wild animals

2. abnormally dangerous activity

   1. An activity is abnormally dangerous when: (1) there is a high risk of serious harm to others; (2) the defendant cannot engage in the activity without risk, and cannot eliminate the risk with care; and (3) it is not a commonly undertaken activity in the community.

3. domestic animals

   1. only when they have a known dangerous propensity

products liability

Supplier HAS strict liability if: 1) Product is defective(from time it left factory); 2) Product was not altered; 3) It caused injury when used in an intended or unintended foreseeable use; AND 4) D is a commercial supplier (routinely deals in goods of the type).

SOLELY economic loss is not allowed

Types of defects

1. manufacturing defect

   1. Product differs from intended design; AND 2) Is more dangerous than if made properly.

2. design defect

   1. If product can be made or manufactured: 1) Safer; 2) More practical; AND 3) At a similar cost.

3. failure to warn

   1. P not warned of risks of the product, That aren’t obvious to an ordinary user, but known to designer/manufacturer.