TORT Elements (PT 2)

Define SURVIVAL STATUTES under COMMON LAW and MODERNLY

• If decedent was involved in lawsuit at time of death, suit may continue despite death of a party under MODERN LAW

• COMMON LAW - no such cause of action

Define WRONGFL DEATH (2 elements DCN-SD) under COMMON law and then the two “TYPES” of wrongful death statutes (S-T). May all appropriate defenses be asserted against the estate?

• When DEATH CASUED by DEFENDANT’s intentional or NEGLIGENT act,

• SUIT may be brought by DECEDENT’s family members

The two types of wrongful death statutes are SURVIVAL and TRUE

• SURVIVAL (Minority) Authorizes survival of ANY action decedent might have maintained including damages sustained by the estate. Damages include pain, suffering, medical expenses, loss of future earnings.

• TRUE (MAJORITY) Permits cause of action in favor of decedent’s heirs and dependent parents. Heirs recover what decedent would have contributed to their economic well being. Damages include loss of support, consortium, services but NOT pain and suffering.

YES, any appropriate defense that could be raised against decedent may be asserted against the estate.

For TORTS, what is the STATUTE OF LIMITATIONS if not specified?

TWO YEARS and begins at the TIME OF INJURY OR WHEN INJURY DISCOVERED

For TORTS, what are the THREE types of IMMUNITIES that protect the DEFENDANT from liability? (IF-C-GS) What do they mean?

• INTRA FAMILY immunities - Modernly, SPOUSES may only sue for intentional torts, injuries from accidents, and actions brought from damages before marriage or after divorce. PARENT-CHILD may may sue for injury to property and may sue for personal injury in some jurisdictions.

• CHARITY immunities: Modernly, only immune if engaged in proprietary function or insured. Historically, recipients of charity could not sue a charity unless they were paying members.

• GOVERNMENTAL immunities: Generally are immune unless they consent to tort liability or have liability insurance. However, government owned and NON-proprietary functions like a city-owned airport are NOT protected with immunity - only governmental functions.

For TORTS, define STRICT liability

Liability imposed irrespective of whether anyone was at fault.

Discuss STRICT liability for DOMESTIC animals

One is NOT strictly liable for injuries caused by a DOMESTIC animal (dogs/cats) UNLESS defendant has knowledge of the dangerous propensities of the animal unless it satisfies the FIRST BITE rule. Liability is ONLY for injuries attributable to animal’s dangerous propensity - not just because someone saw an animal, got scared, and fell etc.

• HOWEVER, is a domestic animal WHICH IS NORMALLY DANGEROUS like a farmers BULL results no NO STRICT LIABILITY for natural dangerous propensity.

Discuss STRICT liability for WILD animals & livestock

Possessor of a wild animal is SUBJECT TO LIABILITY for harm done by the animal to the other, even if possessor exercised UTMOST CARE to confine animal or prevent harm. Liability limited to harm resulting from dangerous propensity only.

• exception - wild animals kept under PUBLIC DUTY like a ZOO or under transport, strict liability does not apply.

• Trespassing livestock - there is STRICT LIABILITY for trespass and damages

• TRESPASSERS cannot recover for strict liability but may be able to under negligence if landowner knows of presence and fails to warn.

Under STRICT LIABILITY activities, RYLANDS v FLETCHER held a person who brings something onto his land that involves a NONNATURAL use of the land AND is LIKELY TO CAUSE substantial damage if it escapes will be held ___ ____ if it escapes and causes harm

STRICTLY LIABLE

If a Plaintiff seeks a claim of strict liability when defendant engaged in abnormally or ultrahazardous activity, he must prove the following 5 things to the court to recover:

• Defendant has ABSOLUTE DUTY to make activity safe

• Plaintiff was FORSEEABLE victim

• Plaintiff had FORSEEABLE HARM

• Activity was ACTUAL AND PROXIMATE CAUSE of harm

• Plaintiff suffered ACTUAL INJURY

Regarding Strict Liability, when defendant maintains abnormally dangerous condition on premises or engages in high risk of harm activity, even if reasonable care is used to prevent harm, will the defendant still be liable?

GENERALLY YES - things like crop dusting, stored explosives, common carrier transporting dangerous cargo, etc are all inherently high risk and will be strictly liable.

HOWEVER - not always - CONSIDER: If ACTIVITY is a matter of common usage, if APPROPRIATE to the PLACE being CARRIED on, and the VALUE of the ACTIVITY TO THE COMMUNITY.

Define VICARIOUS LIABILITY (3 elements NF-HL-MSI)

• Defendant is NOT AT FAULT

• Defendant is HELD LIABLE for ANOTHERS act because of a special relationship or circumstance

• Defendant MAY SEEK INDEMNIFICATION from the actual tortfeasor

Public policy demands employers should bear the risk of loss SO LONG AS EMPLOYEE was ACTING to FURTHER his EMPLOYER’s business or discharge obligations of employment.

Under VICARIOUS LIABILITY theory for employers, it is important to consider the FORESEEABILITY of the deviation of an employee’s conduct. What are the two types of deviations?

• A DETOUR (Slight deviation)

• A FROLIC (Major deviation)

Under VICARIOUS LIABILITY, if a MASTER borrows another’s servant, who is liable for the torts of the servant?

• The BORROWING MASTER becomes vicariously liable.

Under VICARIOUS LIABILITY theory, the employer of an INDEPENDENT CONTRACTOR generally has NO liability UNLESS one of the four following situations exist: (ID-ND-RC-CNR)

1) Contractor engaged in INHERENTLY DANGEROUS activities

2) NON-DELEGABLE duties (such as maintaining something in good repair)

3) Employer RETAINS CONTROL of part of the work then will be subject to liability for

harm whose safety employer owes duty to exercise reasonable care

4) However, under COLLATERAL NEGLIGENCE RULE, employer is ONLY responsible

for the risks inherent in the work and NOT for collateral negligence of the contractor

Regarding JOINT VENTURES, discuss how VICARIOUS liability applies to members of the venture within the scope of the enterprise

• One member of an ENTERPRISE is VICARIOUSLY LIABLE to those outside the enterprise for the CONDUCT of OTHER enterprisers acting WITHIN the SCOPE of the enterprise. Look for an agreement or common purpose - equal right of voice and control.

Regarding VICARIOUS liability, define how it applies in automobile cases:

• An OWNER is VICARIOUSLY liable for injuries resulting from the BAILEE’s negligent operation such as under the:

  • Family members using a vehicle for a family purpose makes owner liable (Family purpose doctrine) OR

  • Used with implied or express consent makes owner liable (Permissive use statutes)

Under a BAILOR/BAILEE relationship under VICARIOUS LIABILITY, describe if and when vicarious liability applies

Generally, there is NO VICARIOUS LIABILITY in a bailor/bailee relationship UNLESS there was a LACK of due care in entrustment of the property to the bailee (letting a known reckless driver to borrow/rent your car).

BAILOR:

• A person who leaves their car at a mechanic for repairs (the owner is the bailor).

• A person who stores their belongings in a storage unit (the owner is the bailor).

• A person who drops off clothes at a dry cleaner (the owner is the bailor).

BAILEE:

• The mechanic who receives the car for repairs.

• The storage facility that holds the belongings.

• The dry cleaner who cleans the clothes.

Under VICARIOUS LIABILITY theory, discuss if a PARENT is vicarious liable for the tortious conduct of their child:

Under COMMON LAW, NO. However:

• Majority: Parents are liable for willful intentional torts of MINOR children up to certain dollar amount

  • EXAMPLE: Parent entrusts child with dangerous instrumentality, or parent fails to exercise proper control over child.

If the related party is not vicariously liable, he may be liable for his own negligence (e.g., negligent selection of independent contractor, negligent entrustment of automobile, negligent supervision of child) TRUE OR FALSE?

TRUE

Define PRODUCTS LIABILITY (4 elements) (RP-IC-D-T/INBS)

• A RELEASE OF A PRODUCT into commerce

• INJURY to property of person CAUSED by defect

• DEFECT must be sown in DESIGN, MANUFACTURE, or WARNING

• And must assert one of the four THEROIES:

  • INTENTIONAL

  • NEGLIGENCE

  • BREACH OF WARRANTY

  • STRICT LIABILITY

Under PRODUCTS LIABILITY, there are FIVE THEORIES a plaintiff may assert & the plaintiff MUST SHOW the product was somehow DEFECTIVE. What are the FOUR THEORIES (CLAIMS) (IT-N-BW-SL) & what are the THREE TYPES of DEFECTS (DD-MD-WD). Define the three types of defects in one sentence.

Five theories:

• INTENTIONAL TORT

• NEGLIGENCE

• BREACH EXPRESS or

• IMPLIED WARRANTY

• STRICT LIABILITY

Defects:

• DESIGN DEFECT - Product design presents undue risk of harm in normal use. (breach via RISK-UTILITY test - reasonable alternative design?)

• MANUFACTURING DEFECT - Product not in condition manufacturer intended when it left its control due to carelessness (you may examine breach via Res Ipsa Loquitur)

• WARNING DEFECT - Product was in condition intended by the defendants control, but packaging or literature is inadequate to warn the ordinary customer of unforeseeable danger. (Breach via duty to warn)

Define INTENTIONAL TORT CLAIM (1 of 5) as it relates to PRODUCTS LIABILITY

• A manufacture or supplier who sells a product and KNOWS IT IS DEFECTIVE OR DANGEROUS (without warning of danger) may be LIABLE FOR BATTERY

• So long as defendant believed the injuries were substantially certain to occur as result of the chattel’s use - this will satisfy INTENT.

  • Intent is hard to prove, and therefore negligence theory is more common.

Define NEGLIGENCE THEORY CLAIM (2 of 5) as it relates to PRODUCTS LIABILITY (3 ELEMENTS (MSDR-DC-B-H). CAUSATION (AC+PC) + DAMAGES (PI+PD)

• Defendant is a MANUFACTURER, SUPPLIER, DISTRIBUTOR, and RETAILER of the product

• Had a DUTY of CARE to INSPECT, DISCOVER, CORRECT via reasonable inspection and if a retailer, to WARN or else will cut off manufacture liability (unless chattel is SEALED then retailer has no duty to inspect prior to sale UNLESS has reason to know chattels may be dangerous).

• BREACHED this duty with conduct falling below standard of care thereby CAUSING with ACTUAL+PROXIMATE CAUSE, HARM to plaintiff

  • Damages limited to personal injury and property damage.

Define WARRANTY THEORY CLAIM (3/4 of 5) as it related to PRODUCTS LIABILITY. (LI-BR-EI-MQ/FP) There are TWO types of warranties. What are they and what are the elements? What are the five defenses (AR-CN-D-MP-TN)

• Liability can be IMPOSED against a manufacturer or seller of a product based upon BUYERS RELIANCE upon an EXPRESS or IMPLIED warranty that the goods are of MERCHANTABLE QUALITY or FIT for INTENDED PURPOSE.

  • EXPRESS: When commercial supplier of chattels makes a REPRESENTATION which P relied upon and was damaged

    • No privity required modernly.

  • IMPLIED: A legal guarantee automatically assumed to be part of a sale, even if not explicitly stated

    • (MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE). When implied in law via privity (contract from seller to buyer) BUT THIRD party users may be protected if reasonable to foresee third person to use, consume or be affected by the goods.

DEFENSES:

• Assumption of Risk

• Comparative Negligence

• Disclaimers

• Misuse of product

• Timely Notice

Under IMPLIED WARRANTY THEORY CLAIM related to PRODUCTS LIABILITY, are the two following sentences TRUE or FALSE?

MERCHANTIBILITY means A MERCHANT selling goods WARRANTS they are fit for ordinary purposes.

FITNESS FOR PARTICULAR PURPOSE means SELLER knows of BUYERS INTENDED USE and who RELIES on SELLERS special KNOWLEDGE and skills.

TRUE

Under the STRICT LIABILITY IN TORT CLAIM (5 of 5) related to PRODUCTS LIABILITY, what is the definition? What must Defendant prove? What are defenses?

• A MANUFACTURER/DISTRIBUTOR/SUPPLIER is liable by operation of law. Thus, defective product in design, manufacture or warning, which is UNREASONBALY DANGEROUS, defective at time it left hands of manufacturer, placed in STREAM of COMMERCE makes manufacturer STRICTLY liable in TORT to ALL foreseeable consumer-users for injuries.

• MUST establish defect as ACTUAL + PROX CAUSE

  • Recent case law extends protection to bystanders, retailers and middlemen sales persons.

  • Use Risk-Utility test for design defects except for food.

• Defenses include:

  • Personal injuries and property damage. Majority forbids purely economic losses.

There are FOUR CROSSOVER TORTS - what are they? (M-N-WL-BT)

• MISREPRESENTATION

• NUISANCE

• WRONGFUL LITIGATION

• BUSINESS TORTS

Define the two CROSSOVER TORTs of MISREPRESENTATION (INTENTIONAL (IMMF-K-IIR-CR-D) and NEGLIGENT (FMR-LC-IR-P-D)) as well as Damages

• INTENTIONAL MISREPRESENTATION:

  • The INTENTIONAL MATERIAL Misrepresentation

  • Made KNOWINGLY

  • With the INTENT to INDUCE P’s RELIANCE

  • CAUSING P to justifiably RELY which caused DAMAGE.

    • Note - must be active concealment and scienter

    • Damages will be difference between actual value received and what would have been received (MAJORITY)

• NEGLIGENT MISREPRESENTATION

  • A FALSE MATERIAL REPRESENTATION

  • made with a LACK OF DUE CARE

  • INTENDED TO INDUCE RELIANCE

  • PROXIMATELY causing damage

    • Beware of contractual relationships creating a duty to act reasonable in representation.

    • Damages: Out of pocket costs

• STRICT LIABILITY for innocent misrepresentation in sales or leases of land.

Define the CROSSOVER TORT for the TWO TYPES of NUISANCE and the DEFENSES

• PRIVATE NUISANCE

  • Unreasonable interference with possessory interest in the use or enjoyment of his land

• PUBLIC NUISANCE

  • Unreasonable interference with a right common to the general public (individuals usually can’t sue for this unless they are injured differently than the general public)

• The nonphysical nuisance must cause SUBSTANTIAL & UNREASONABLE harm.

  • EG - PHYSICAL: Trespass or NONPHYSICAL: Smoke, Noise or Vibrations

  • Invasion must be SUBSTANTIAL. P must be in actual possession. Utility v. Risk.

  • Can be intentional, negligent, or strict liability

• Beware of PRIVILEGED entry for abating nuisance at reasonable time/manner after demand if practical.

DAMAGES: Money damages/Injunction to abate

Define the two CROSSOVER TORTS of WRONGFUL LITIGATION (MP/ICCP-THF-NPCM) AP/UCCP-PNI)

MALICIOUS PROSECUTION:

• Initiation of CIVIL or CRIMINAL PROCEEDINGS against P that

• TERMINATED in HIS FAVOR

• For which NO PROBABLE CAUSE & WITH MALICE

  • Damages: Harm to reputation, litigation costs, punitive damages, emotional distress

ABUSE OF PROCESS

• Use of CRIMINAL or CIVIL process

• For purposes for which it was not intended

In the CROSSOVER TORTS, there are THREE BUSINESS TORTS. Define each (D/IWC/IWPA)

IF=P-FM-P-D

IWC= IWA-I-C-D

IWPA= K-ER-TP-D

• INJURIOUS FALSEHOOD

  • PUBLICATION of FALSE MATERIAL of PLAINTIFF

  • To PREVENT others from DEALING with plaintiff.

• INTERFERENCE WITH CONTRACT

  • INTENTIONAL WORDS or ACTIONS to INTERFERE with existing contract

  • Causing DAMAGE

    • No liability for defendant’s not a party to the contract

    • No liability for interference for proper purpose (e.g. honest advice)

• INTERFERENCE WITH PROSPECTIVE ADVANTAGE

  • Defendant, with KNOWLEDGE of an ECONOMIC RELATIONSHIP with a THIRD PARTY, DISRUPTS it.

  • Causes ECONOMIC HARM.

    • Defendant doesn’t need to be a party to the relationship.

    • Negligent interference counts if D owes DUTY to P.

Define the TORT of DEFAMATION and its ELEMENTS (SM-H-C-D-R-S-D-OCC)

Elements: (FDS-PTP-U-RD/D)

Defamation is statements made in hatred, contempt, disgrace, ridicule, or causes shunning or damage in occupation.

• A FALSE, DEFAMATORY STATEMENT

• PUBLISHED to a THIRD PERSON

• UNDERSTOOD by the THIRD PERSON

• Where RETRACTION DEMAND made & refused

• Causing DAMAGES

  • Opinion with false factual assertions is not privileged.

  • If group defamation, the group must be identifiably small.

  • Plaintiff must be living.

Under the TORT of DEFAMATION there are four types of DEFAMATION (S/SPS/L/LPS). What are they, define each one and note damages that must be proven.

• SLANDER: Defamation PUBLISHED via SPOKEN WORD.

  • Must prove special damages

• SLANDER PER SE: Defamation PUBLISHED via SPOKEN WORD that is so defamatory on its face that no proof of special damages required and general damages recoverable under the CLUB mnemonic: Criminal behavior, Loathesome disease, Unchastity, Improper Business Practices

• LIBEL: Defamation PUBLISHED in WRITTEN form

• LIBEL PER SE: Defamation PUBLISHED in WRITTEN form that is so defamatory on its face it requires no inducement or innuendo to establish defamation. No proof of special damages required and general damages recoverable

Under the TORT of DEFAMATION, defamation can be evaluated by the three following types of facts. Define each: INDUCEMENT, INNUENDO, COLLOQUIUM

INDUCEMNET - Facts necessary to understand defamatory meaning

INNUENDO - the MEANING understood from the inducement

COLLOQUIUM - Statement that makes NO reference to P and P must establish it was P who was being defamed by the statement.

Under the TORT of DEFAMATION, what are the FIVE defenses to a DEFAMATION CLAIM? (C-T-AP-QP-CP)

• CONSENT

• TRUTH

• ABSOLUTE PRIVILEGES

  • Judicial Proceedings

  • Legislative Proceedings

  • Executive Statements (government officials)

  • Husband/Wife

  • Broadcasters

• QUALIFIED PRIVILEGES but only if relevant and made without malice

  • Repots of public proceedings

  • Fair comment

  • Interest of publisher or others (Protect own interests or warn employer)

  • Common interest (Business dealings)

  • Communications to one who may act in public interest (prevent a crime)

• CONSTITUTIONAL PRIVILEGES

  • If about a PUBLIC OFFICIAL, must be PROVEN to be ACTUAL MALICE to recover damage for IIED

  • If private individual involving matter of public concern, negligence suffices if causes damage - actual damage must be proven: loss of reputation, humiliation, mental distress, out of pocket loss.

  • Media not liable for broadcasting illegally recorded conversation so long as it did not participate in its taping AND it concerned matter of public importance.

  • If defamatory statement is purely matter of private concern, plaintiff may recover presumed and punitive damages.

Note

• Is P a PUBLIC FIGURE or PRIVATE PERSON?

• Is SUBJECT matter a PUBLIC or PRIVATE concern?

Define INVASION of PRIVACY as a TORT? What are the FOUR chargeable THEROIES? (AL-IUS-PDPF-FL)

• The RIGHT TO BE LEFT ALONE

Theories are:

• APPROPRIATION OF LIKENESS

• INTRUSION UPON SECLUSION

• PUBLIC DISCLOSURE OF PRIVATE FACTS

• FALSE LIGHT

Under INVASION OF PRIVACY, define elements of APPROPRIATE OF PLAINTIFF’s name/likeness: (DU-NLG-PB)

• DEFENDENT used plaintiff’s name or likeness and goodwill for pecuniary benefit

Under INVASION OF PRIVACY, define elements of INTRUSION UPON SECLUSION (UR-REP)

• UNREASONABLE INVASION of another’s REASONABLE EXPECTATION OF PRIVACY such as in private places, plaintiff’s property, and nonphysical intrusions such as phone calls or binoculars.

Under INVASION of PRIVACY, define the elements of PUBLIC DISCLOSURE OF PRIVATE FACTS (ONLCP-DPF-C)

• DISCLOSURE of PRIVATE FACTS, highly OFFENSIVE to a reasonable person and of NO CONCERN to the PUBLIC

• COMMUNICATED to public at large or enough persons to make it likely to reach general public

  • May be defensible if newsworthy

Under INVASION of PRIVACY, define the elements of FALSE LIGHT

• publication by defendant to the public

• untrue implication or misleading

• highly offensive to reasonable person

For INVASION OF PRIVACY, are there any requirements to show special damages? What are the DEFENSES for INVASION of PRIVACY (there are 4) C-T-N-D

• No, there are no requirements to show special damages.

• Defenses:

  • Consent

  • Truth but ONLY in FALSE LIGHT claims

  • Newsworthiness (press may report on matters of legitimate public concern but NOT if it the matter is of PURELY PRIVATE CONCERN

  • Absolute and Qualified privilege are applicable to Public Disclosure of Private Facts and False Light.