Strict Liability and Intentional Torts

Vicarious Liability (Respondeat Superior)

(1) employer-employee relationship under a totality of the circumstance

(2) employee was working within the scope of their employment

Workers’ Compensation

If the injury arises out of an in the course of employment the employer must pay regardless

Abnormally Dangerous Activity (Ultrahazardous)

(1) The activity under defendant’s control creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actor and

(2) The activity is not one of common usage

Defenses for Ultrahazardous Risks

(1) A plaintiff’s assumption of risk (the fact that plaintiff may have used reasonable care for their own protection is irrelevant)

What are some examples of ultrahazardous risks?

Construction of dams and large buildings, demolitions, maintenance of utility wires, crop dusting, firework displays

Strict Liability for Injuries Caused by Livestock

Liability for harms caused by trespassing livestock:

Harms: eating grass, trampling down crops, scratching or digging up the seeds or otherwise

Strict Liability UNLESS:

(1) the harm was not foreseeable

(2) animals were being herded along the highway is confined to butting land

(3) state common law or statute requires the complaining landlord to have erected a fence

Strict Liability for Injuries Caused by Domestic Animals

Keepers of dogs, carts, horses, or other domestic animals are liable for injury caused by the animal only when the owner knew or should have known of the animal’s aggressive disposition

Strict Liability for Injuries Caused by Wild Animals

Strict Liability for owners or keepers of wild animals that cause harm even though the possessor may have exercised the utmost care (exception for Zoo animals in some cases)

What are some defenses for strict liability for injuries caused by animals?

• Plaintiffs assumption of risk OR comparative fault (rule split)

  • ASSUMPTION OF RISK USED TO BE COMPLETE DEFENSE, NOW MODERN COURTS HAVE SWALLOWED IMPLIED ASSUMPTION OF RISK INTO COMPARATIVE FAULT SO THAT THE PLAINTIFF IS NOT COMPLETELY BARRED FROM RECOVERY IN SOME JURISDICTIONS

Strict Products Liability Elements

• Seller liable for strict products liability if 

  • (1) Product is defective, and

  • (2) Defect is unreasonably dangerous, and

  • (3) Defect existed when product left defendant’s control, and

  • (4) Product reached consumer without substantial change

• Some courts have dropped “unreasonably dangerous” to not confuse with negligence analysis

What is the necessity of showing defect for strict products liability?

• Injury alone is insufficient; must prove manufacturing, design, or warning defect

• Plaintiff must show the defect was more probable than not present when product left defendant

What are some of the defenses and apportionment principles for strict products liability?

• Comparative negligence

• Assumption of risk

• Misuse (unforeseeable misuse defeats recovery)

• Alteration after sale

• Compliance with regulations (probative but not conclusive)

• No disclaimers of strict liability for personal injury (RS3rd)

• Federal Preemption

Strict Products Liability for Misrepresentation

• Allows Plaintiff to collect damages for a non-defective product

• Misrepresentation can be fraudulent, negligent, or innocent per RS3rd

• Must be misrepresentation of material fact and induce justifiable reliance.

What are the warranty claims under the UCC

Express Warranty, Implied Warranty of Merchantability, and Implied Warranty of Fitness for a Particular Purpose

Express Warranty

• Statement of fact, promise, description

• Must be basis of bargain

• Cannot be disclaimed

Implied Warranty of Merchantability

• Goods must be:

  • 1. Pass without objection 

  • 2. Fair average quality

  • 3. Fit for ordinary purposes

  • 4. Even kind and quality

  • 5. Properly packaged and labeled

  • 6. Conform to label promises

Implied Warranty of Fitness for Particular Purpose

• Requires:

  • 1. Seller has reason to know buyer’s promise

  • 2. Buyer relies on seller’s skill/judgment

  • 3. Seller knows of reliance

Disclaimers of Warranties

• Must be conspicuous (“as is” often valid)

• Cannot disclaim express warranties

• Personal injury disclaimers generally invalid for consumers

Battery

1. Defendant intends to cause contact with the son of another

2. Defendant conduct causes contact to plaintiff

3. The contact is offensive or harmful to plaintiff

   1. Contact is offensive if society would consider it offensive - and may be offensive if defendant knows that plaintiff peculiarly considers it so

Assault

1. Defendants intends to cause another to apprehend that an offensive or harmful contact with her person is imminent

2. Defendants conduct actually causes such apprehension in plaintiff

False Imprisonment

1. Defendant intends to confine another within particular boundaries

2. Defendant conduct actually causes such confinement of plaintiff

3. Plaintiff is conscious of or harmed by the confinement

Intentional Infliction of Emotional Distress

1. Defendant intentionally or recklessly

2. Causes severe mental distress to plaintiff

3. Through extreme and outrageous conduct

4. Directed at plaintiff or certain third parties

   1. Generally close family members in physical proximity to plaintiff

Typical Power Dynamics in IIED

1. Position of authority

2. Knowledge of susceptibility (relevant to each of the IIED elements)

Trespass to Chattel

1. Defendant intends to damage, possess, or substantially interfere with plaintiff’s possession of chattel

2. Plaintiff properly possesses the chattel

   1. Bad faith not required

   2. The interference must be substantial (unlike trespass to land) (borrowing a pen for a minute probably not trespass to chattel)

Conversion

1. Defendant intends to exercise control over a chattel

2. Plaintiff has the right to control that chattel

3. Defendant interference with plaintiff’s right is so serious as to justify compensation for the chattel’s full value

What is distinction between Trespass to Chattel and Conversion and what is the significance of the distinction for damages?

Distinction between trespass to chattel and conversion can matter for damages:

• Trespass to chattel: temporary loss of use and repair costs

• Conversion: fair market value of the goods (sometimes fair market value is worse than repair costs though)

Consent Defense

• Express

• Implied (passing car keys)

• By law (emergency medical treatment)

What are the Consent exceptions?

• Incapacity

• Actions beyond scope

• Fraud

• Duress

• Illegality (split)

Self-Defense and Defense of Others Defenses

• May use reasonable force is he reasonably believes that such force is necessary to protect himself or others from immediate harm

  • Belief must be reasonable and sincere

  • Threat must be immediate

  • Response must be reasonable

• Person may use reasonable force to defend themselves even if retreat is possible

  • When that force does not threaten death or serious bodily harm

  • Even if that force threatens death or serious bodily harm (only in some jurisdictions)

• Some jurisdictions recognize only a limited privilege to use force to protect 3rd parties

Necessity Defense

Person may interfere with the property interests of an innocent party in order to avoid greater injury (b<pl)

Public Necessity

• Trespass or conversion to protect the community

• Complete defense

Private Necessity

• Trespass or conversion to protect a private interest of greater value

• Incomplete defense

Fraudulent Misrepresentation (Intentional Economic Tort)

1. Defendant makes a material misrepresentation

2. Defendant either

   1. Knows the misrepresentation to be false or

   2. Recklessly disregards the potential falsity

3. Defendant intends the misrepresentation to induce reliance

4. Plaintiff justifiably relies on the misrepresentation

5. Plaintiff suffers pecuniary damages by relying

Intentional Interference with Contract or Economic Expectancy

1. Plaintiff and a 3rd party have a valid contract or economic expectancy

2. Def knows of the x

3. Def intends to interfere with the x

4. Interference is improper (some courts dependent on who has burden)

5. Def causes interference w x

6. Plaintiff suffers damages as a result of interference (men dis, punitive)

Malicious Prosecution and Malicious Institution of Civil Proceedings

1. Def institutes or continues a criminal or civil proceeding against plaintiff

2. Defendant acts with an improper purpose

3. Proceeding lacks probable cause

4. Proceeding terminates in plaintiffs favor

5. Proceeding causes damage to plaintiff

• Public officials exercising their discretion are generally immune from malicious prosecution claims

Abuse of Process

1. Defendant uses a criminal or civil process

2. Def acts with an ulterior purpose

Process causes damage to plaintiff

Defamation (libel (written) and slander (oral))

1. Def causes a statement to reach someone other than plaintiff

2. The statement is about plaintiff

3. The statement is defamatory

4. The statement causes special damages (unless slander per se or libel)

Constitutionally required elements (apply if plaintiff is a public official):

5. Statement is false (NB: truth is a common law defense)

6. Defendant acts with actual malice

False Light

1. Def communicates a fact widely

2. The fact is false

3. A reasonable person would object to the fact

4. If the matter is of public interest: defendant acts with actual malice

Public Disclosure of Private Facts

1. Def communicates a fact widely

2. The fact is (highly) private

3. The fact is highly offensive to a reasonable person

4. The fact is not a legitimate public interest

Trespass to Land

1. Def intentionally

   1. Enters or

   2. Causes a 3rd person or thing to enter or

   3. Remains on or

   4. Fails to remove a thing  she has a duty to remove from

2. Land in the current or future possession of the plaintiff

   1. Regardless of whether defendant causes harm to any legally protected interest of the plaintiff

Private Nuisance

1. Defendant causes an interference with plaintiff’s use or enjoyment of property that she owns or possesses AND 

   1. No culpability requirement

2. That interference is unreasonable

   1. Focus on the unreasonableness of the interference as perceived by the plaintiff, not the unreasonableness of defendants conduct

Public Nuisance

1. Defendant causes an unreasonable interference with a right common to the general public

   1. The plaintiff may be a public agency, public official, or specially situated private parties

   2. Look for threats to public health, safety, etc.

   3. Relevant to some environmental and social harms