MBE Torts

Under the doctrine of Transferred iNTENT for Battery

Intent requirement for battery is also satisfied if D:

(1) intend to cause contact with P’s person; (2) intends to cause contact with third party but instead causes contact with P’s or (3) intends to commit an assualt but instead commits a battery.

Apparent Consent

is a defense to battery when consent can be reasonably implied from the plaintiff’s conduct or from custom. Such consent is ineffective if the defendant’s conduct exceeds the scope of consent.

Conversion

is an intentional exertion of dominion or control over the plaintiff’s chattel that so seriously interferes with the plaintiff’s ownership rights that the defendant is liable for the fair market value of the chattel at the time of conversion.

Conversion with initial permission of use

D who initially uses P’s chattel with permission to commits conversion when D (1) intentionally uses the chattel in a manner that exceeds the scope of permission; and (2) seriously violates P’s right to control the chattel.

Innkeepers (traditional common law approach)

Innkeepers owed the highest duty of care to their guests and could be liable for even slight negligence.

Innkeepers (most jurisdiction)

In most jurisdictions, Innkeepers only owe a duty to use ordinary care to protect their guests while they are on the premises. Ordinary care is measured by the reasonable prudent person under the circumstances.

• Evidence that innkeeper complied with or deviated from community or industry custom is relevant to but not conclusive on the issue of negligence.

Common-carrier liability (common law - majority rule)

Common carriers owe the highest duty of care to their passengers and can be liable for slight negligence.

Common-carrier liability (modern approach)

common carriers only owe a duty to use reasonable care to protect passengers from harm that arises within the scope of that relationship.

Traditional contributory negligence

P’s failure to use reasonable care for his/her own safety is a complete defense to negligence regardless of the percentage that P’s own negligence contributed to the harm.

Pure Comparative Negligence (Default rule on the MBE)

P’s own negligence reduces recovery by P’s proportionate share of fault (e.g., P’s 90% at fault can still recover by 10% damage).

Modified or partial comparative negligence

When P’s own negligence contributes to his/her harm, P’s recovery is reduced by his/her proportionate share of fault and is barred if P’s fault exceeds 50%.

Several Liability

If multiple Ds cause P’s indivisible harm, several liability limits P to recovering from each D the portion of damages that corresponds to his/her proportionate share of fault.

• Applies in pure comparative negligence; modified (or partial) comparative negligence

Negligence per se

Negligence per se is presumed if:

• P violated a statute

• the statute was intended to prevent the type of harm suffered by P; and

• P is within the class of persons that statute was intended to protect.

Must still prove causation that either P or D’s violation of caused P’s harm.

Negligence per se - Minority Approach

D’s violation of a statute or ordinance creates a rebuttable presumption (as opposed to a conclusive presumption) that D breached of duty of care.

Attractive Nuisance doctrine

A land possessors have a duty to exercise a reasonable care to protect child trespassers from artificial (i.e., man made) conditions on their land when:

• condition exists where the land possessor knows or should know children are likely to trespass

• Land possessor knows or should know condition poses unreasonable risk of death or serious bodily harm to children

• Children of the trespasser’s age cannot reasonably discover or appreciate the risk—-e.g., children do not appreciate the risk of slipping on wet concrete; AND

• the risk outweighs the condition’s utility and burden of eliminating the risk

A land possessor who breaches this duty of care and cases a child trespasser physical harm is liable for negligence.

Known or Anticipated Trespassers

A land possessor owes a duty of known or anticipated trespassers to (1) warn them about hidden, artificial dangers that are known to the land possessor but unlikely to be discovered by trespassers and (2) use reasonable care while conducting activities on their land and in active operations.

Res Ipsa Loquitur

permits an interference of negligence when’s harm was the type usually caused by negligence and evidence tends to eliminate other potential causes of that harm

Res Ipsa Loquitur (Minority view)

D’s negligence may be inferred:

• Accident that caused P’s harm is the type that ordinarily happens due to negligence class of actors

• D is a relevant member of that class

Strict products liability along chain of distribution

Any commercial seller in the distribution chain—e.g., manufacturer, distributor, retailer—is subject strict products liability if: (1) the commercial seller’s product was defective when it left the commercial seller’s control; and (2) that defect caused P’s harm.

• However, the distribution chain i.e., manufacturer or retailer cannot be held strict held liable for products liability if/when the defect of the product was not present when it left the manufacturer or retailer control.

Commercial seller in the distribution chain

The commercial supplies of a component that is integrated into a defective product is subject strict liability when (1) the component is defective or (2) the supplier substantially participated in the process of integrating the component into the product’s design and the component’s integration caused that product to be defective.

Commercial Seller

A commercial seller is subject to strict products liability when (1) a defective product harms foreseeable P when it was used in an intended or reasonably foreseeable way and (2) the defect existed at the time the product left the commercial seller control.

Wild Animal

D is strictly liable for harm that: (1) is caused by P’s fearful reaction to the sight of an unrestrained wild animal or (2) directly results from the wild' animal’s abnormally dangerous characteristics.

Domestic Animal

The owner of a domestic animal is strictly liable for an physical harm caused by the animal when (1) the owner knew or had reason to know about the animal dangerous propensities and (2) P’s harm arose from those dangerous propensities.

Defamation - Private Person standard

D must act with:

• knowledge that statement is false; OR

• negligent disregard for its falsity

Defamation - Public figure (celebrity, social activist); Public Official (e.g., congressperson governor)

D must act with actual malice:

• Knowledge that statement is false; OR

• Reckless disregard for its falsity

Defamation based on Slander (spoken statements)

ordinarily require proof that:

• D at a minimum, negligently made a false statement about P

• Type of statement would tend to harm, and did harm P’s reputation; and

• D published the statement to a third party who understood its defamatory nature

To prevail in a suit for slander, P must prove:

• D knowingly made a false statement about the P or negligently failed to determine its falsity

• Type of statement would tend to harm P’s reputation

• D intentionally or negligently communicated that statement to a third party (i.e., should have foreseen that it would be heard by a third party)

• That statement caused P special harm (i.e., pecuniary/monetary loss)

No proof of harm is required for Slander per se

statements accused P of:

• A serious crime

• Conduct that adversely affects P’s occupation

• Serious sexual misconduct

• Having a loathesome disease

Private Nuisance

Private nuisance is a substantial and unreasonable interference with the use and enjoyment of P’s property. An interference is substantial if a normal person in the community would find the interference offensive, annoying, or intolerable—even if P is not personally bothered by it.

IIED - Third Party Plaintiff

D whose extreme and outrageous conduct has harmed a third party may be liable for IIED of emotional distress if (1) P contemporaneously perceived that conduct and (2) P was closely related to the third party.

Negligence (Cardozo view)

To prevail on a negligence claim, P must establish all four elements of negligence: duty, breach, causation, and damages.

Majority rule: D owes a duty of care to a P only if P is a member of the class of person who might be foreseeably harmed as a result of D’s negligent conduct (“foreseeable plaintiffs”)

Negligence - (Andrew view)

Minority view: Duty owed to everyone on earth if anyone might be foreseeably harmed as a result of D’s negligence.

NIED

has three theories of recovery: (1) Zone of danger; (2) bystander; and (3) special situation.

NIED - Zone of Danger Theory

• D’s negligent conduct placed P in danger of immediate bodily harm; and

• that danger caused P’s serious emotional distress.

Strict Products Liability

A product is defective due to inadequate warnings or instructions when:

• the product poses a foreseeable risk of harm that is not obvious to an ordinary user; and

• reasonable instructions or warnings by the commercial supplied could have reduced that risk

The Learned-Intermediary Rule (manufacturer)

A manufacturer of a prescription drug or medical device will not held strictly liable for inadequate warnings or instructions if the manufacturer warned the prescribing physician about the risk of harm associated with that product.

Merchant’s Privilege Exception - False Imprisonment

To successfully assert the merchant’s privilege as a defense to false imprisonment, a defendant-merchant must have detained the P on or in the immediate vicinity of merchant’s premises

Merchant’s Privilege Exception - False Imprisonment

In most jurisdictions, D is not liable for false imprisonment when the merchant’s privilege applies:

• D is a merchant or a merchant’s employee or agent

• D reasonably believes that P has wrongfully taken or is attempting to take merchandise from its premises or failed to pay for personal property or services rendered there

• Detainment occurs on, in or in the immediate vicinity of, the merchant’s premises, for a reasonable amount of time, and in a reasonable manner to investigate the matter, recapture the property, or facilitate P’s arrest.

Automobile drivers - Negligence

In most jurisdictions, automobile drivers owe a duty or ordinary care to their passengers (persons who pay money for the ride) as well as their guests (persons who ride for free).

Guest Statutes for Automobile Drivers (minority jurisdiction)

Under these statutes, the only duty that automobile drivers owe to their guests is to refrain from gross or wanton and willful (i.e., reckless) misconduct.

Intentional Interference

Intentional interference with a contract requires proof that (1) a valid contract existed b/w the P and the third party; (2) D knew of that contractual relationship; (3) D intentionally and improperly interfered with the K performance; and (4) that interference caused P pecuniary loss.

Land possessor’s duty to land entrants (modern approach)

land possessors owe all land entrants reasonable care regardless of status on the land (e.g., invitee)

Land possessor’s duty to land entrants Exception

land possessors do not owe a reasonable care to protect flagrant trespassers from foreseeable risk of harm.

• A flagrant trespasser is one who enters another’s land without permission and whose entry is particularly eregious—-e.g., entry that results in commission of a crime.

BUT land possessor must:

• not act in intentional, willful, or wantan (i.e., tortious) manner that causes physical harm and

• Exercise reasonable care to flagrant trespassers in peril

Informed consent doctrine

Under the informed-consent doctrine, a physician who fails to disclose the risks of medical treatment or procedure to a patient is liable for negligence if (1) failure to disclose caused the patient to consent and (2) the undisclosed risk materialized and resulted in physical harm.

Intrusion upon seclusion

is an invasion of privacy that occurs when D intentionally intrudes on P’s private affairs in a manner that would be highly offensive to a reasonable person.

Appropriation of name or likeness

Unauthorized use of P’s identity (e.g., P’s name or likeness or item closely associated with P for personal benefit—-e.g., commercial advantage

Public disclosure of private facts

• D publicaly disclosed facts about P’s private life

• that disclosure would be highly offensive to a reasonable person

• that disclosed facts are not of legitimate public interest and

• the disclosure caused P’s harm

HOWER, D is privileged to disclose such facts if (1) the disclosure was in a fair and accurate report of a public meeting and (2) the meeting dealth with matters of legitimate public interest (i.e., newsworthy topics.)

Publicity in a false light

Publicity given to false information about P with actual malice that places him/her in highly offensive & false light & result in damages

Affirmative duty to act

D generally has no duty to aid P who is at a risk of physical harm unless D’s conduct created that risk. When this occurs, D has a duty to use reasonable care to prevent further harm to P.

Compensatory Damage in a Negligence Action

In a negligence action, P can recover compensatory damages based on: (1) P’s initial physical harm; (2) any subsequent harm traceable to that initial harm; and (3) steps taken to mitigate the initial harm.

• P’s actions prior to D’s negligent act are not a factor in determining damages.

Last Clear Chance Doctrine Exception in a Contributory-Negligence Jurisdiction

In a contributory negligence—i.e., failure to use reasonable care for P’s own safety—is a complete bar to recovery.

The last-clear-chance rule allows a plaintiff to recover despite his/her contributory negligence if D (1) had the last clear chance to avoid P’s jury and (2) failed to use reasonable care to do so.

Doctrine of Avoidable Consequences

Under the doctrine of avoidable consequence, a plaintiff seeking to recover under a theory of negligence must take reasonable steps to mitigate damages after D commits a tort.

Make sure to follow the damages based upon pure, modified comparative, or contributory negligence.

Traditional land possessor duty towards licensees

A land possessor traditionally owes licensees (e.g., social guests) a duty (1) to warn them about concealed dangers that are known or should be obvious to land possessor and (2) use reasonable care in active operations conducted on the land.

A land possessor who breaches this duty and causes the licensee physical harm is liable for negligence.

Joint and Several Liability - Indivisible harm

Joint and Several Liability arises when two or more Ds were negligent and any one of them could have caused P’s indivisible harm. This allows P to recover the full amount of damages from any of the negligent Ds, even if it is impossible to prove which one actually caused the harm. However, P must first prove that each defendant was negligent.

Public Nuisance

is an unreasonable interference with a right common to the general public. As a result, a publci nuisance suit is typically brought by a public entity (e.g., a state) and requires proof that:

• D interfered with a public right—e.g., affecting the public at large by emitting noise that disturbs an entire neighborhood; and

• the interference was unreasonable—i.e., it either (1) significantly affected public health, safety, peace, or property rights or violated an ordinance, statute, ro administrative regulation.

Public Suit brought by Private Individual

When a public nuisance suit is brought by a private individual, that individual must also prove special damage—-i.e., harm different from that suffered by the public at large. If P can prove this, then P is entitled to injunctive relief and/or monetary damages.

Intentional Misrepresentation

Liability for intentional misrepresentation arises when (1) D knowingly or recklessly misrepresents a material fact with the intent to induce P’s reliance; and (2) P reasonably relies on the misrepresentation and suffers pecuniary loss as a result.

Strict Liability for Wild Animals - D is liable for fearful reaction

The owner of a wild animal is strictly liable for the harm that is caused by a person’s fearful reaction to the sight of an unrestrained wild animal or directly results from the animals’s abnormally dangerous characteristics.

Bailment - Liability

A bailee’s duty of care with respect to bailed property depends on who benefits from the bailment transaction:

(1) Bailor receives the sole benefit— the bailee has a lesser duty to care for the property and is liable for harm to the property only if the bailee has been grossly negligence

(2) Bailee receives the sole benefit—the bailee must exercise extraordinary care for the property and is liable for harm to the property even if the bailee has been only slight negligent

(3) Bailor and Bailee both benefit—the bailee must take reasonable care of the property and is liable for harm to the property under ordinary negligence principles.

Tortious Interference with contract

• A valid contract existed between the party and a third party

• D intentionally and improperly interfered with the contract’s performance—e.g., using physical violence or economic pressure to prevent or hinder performance of the contract.

• The interference caused P’s pecuniary loss.

Therefore, P can only prevail if D interfered with a contract between P and a Third party—-not b/w P and D

Libel is a Defamation appears in written or other physical form

To prevail in a suit for libel, P must prove the following;

• D knowing made a false statement about P or negligently failed to determine its falsity (i.e., failed to use reasonable care)

• That type of statement would tend to harm P’s reputation.

• D intentionally or negligently communicated that statement to a third party.

If P fails to present legally sufficient evidence to support all of these elements at trial, no reasonable jury could find in P’s favor, the court should grant D’s motion for a directed verdict.

• For public figure, the standard is actual malice—knowledge or reckless disregard of statement’s falsity

D is not liable for defamation if that communication is privileged

One privilege arises when the defendant reasonably believes that:

• the statement affects an important interest of the third party and

• Communicating that statement to the third party is socially acceptable—e.g. the statement is made in response to a request rather than volunteered.

However this privilege is lost when abused. Abused occurs when D knows that the statement is false or recklessly disregards that possibility (i.e., has substantial doubts about the statement accuracy)

Self-Defense against Bystander

When D using force against an actual or apparent aggressor in self-defense unintentionally harms a bystander, the defendant is not subject to intentional tort liability to the bystander.

• D may be liable for negligence

Vicarious Liability - Store owner vs. customers

The store owner is not viacariously liable for an assault committed by one customer upon another.

• Any liability that the owner might have from the accident would arise from her employee’s negligence for failure to prevent the assault.

Purely economic for Negligence damage

P who suffers only economic loss without any related personal injury or property damage cannot recover such loss under a NEGLIGENCE ACTION

A/R for Comparative negligence Jurisdiction

In a comparative negligence, A/R is not recognized as a separate defense—it has been merged into the comparative-fault analysis and merely reduces recovery.

Misappropriation of the right to publicity

D’s unauthorized appropriation of P’s name, likeness, or identity for D’s commercial advantage w/o P’s consent, requires injury to P.

Defamation for deceased person

A deceased person cannot be legally be defames. Estate of the deceased official cannot maintain an action for defamation because the defamatory statement was made after the official’s death.