Torts

List all intentional torts

1. Assault

2. Battery

3. Trespassing

4. False imprisonment

5. IIED

6. Trespass to chattels / conversion of property

List and define all privacy torts, aka “invasion of privacy” torts

• Misappropriation

  • Unauthorized use of name, image, likeness for commercial purposes

• Intrusion upon private seclusion

  • Intrusion must be highly objectionable to reasonable person

• False light

  • Attributing views to P that P does not hold

  • Objectionable to reasonable person

  • Attribution is public

  • Constitutional limitations

    • If matter of public interest or concerns public figure, must prove actual malice (knowledge or recklessness)

• Disclosure of private facts

  • Publication at large of private facts

  • Objectionable to reasonable person

  • Exception

    • If the information disclosed is newsworthy, then no liability

Defamation (and defenses)

Basic elements:

• Defamatory statement

  • This is a statement that reflects negatively on P’s character by reference to specific facts. This doesn’t include opinions, unless the opinion is clearly based on specific facts

• Of or concerning the plaintiff

• Published to a third party

  • Can be either intentional or negligent

  • But… when dealing with the constitutional angle, the standards there apply

• Damages

  • Libel (written)

    • No damages required

  • Slander (spoken)

    • Damages not required if:

      • Statement concerns business or profession

      • States P has a loathsome disease

      • States that a woman is unchaste

      • States that P has committed a crime of dishonesty or serious violence

    • If not one of the above four, damages required

Constitutional law angle, when the defamation is a matter of public concern:

• Falsity

  • The statement must be false

• Fault

  • Public figure: liable if you malice (knew the statement was false or were reckless as to the truth)

  • Private figure: liable if negligent as to truth

Defenses:

• Truth

• Consent

• Absolute privileges—for remarks made during:

  • Judicial proceedings

  • Legislative proceedings

  • Federal executives

  • Between spouses

• Qualified privileges (can be lost if abused or if malice):

  • Generally, when there is a public interest in promoting candid expression

  • Includes:

    • Reports and official proceedings

    • Statements in public interest, so long as publisher made statements in good faith and statements were relevant to the public interest in question

Battery

• Harmful or offensive contact

  • Standard for offense = reasonable person, ignoring sensitivities

• Of a person or extension of the person

• With intent

  • Either desire/purpose, or knowledge of substantial certaintyy

Assault

• P apprehends impending battery

  • Fear is not required

• D has intent to cause P to apprehend or to commit battery

False imprisonment (and defenses)

• Use of force or threat

• To restrain or confine P to a bounded area

  • P must recognize that they’ve been confined

  • P must have no reasonable means of escape

• With intent to restrain and confine

Note the defense of the shopkeepers’ privilege: shopkeeper can temporarily detain and investigate a customer based on a reasonable suspicion that the customer has stolen something,

Trespass to land

• Physical invasion

• Of another’s real property

• Intent (but not to invade; just to go where D actually went)

Trespass to chattels / conversion

• Interference with P’s use or possession of their property

  • Either damage to property, or taking the property away

• Intent (to take the property, not necessarily to deprive P of it)

Conversion is a “substantial” interference with property.

IIED

• Intent

  • Desire or purpose to cause emotional harm

  • Knowledge or recklessness as to causing emotional harm

• Extreme and outrageous conduct

  • Typically: transcends all norms of decency

  • Otherwise, conduct can become extreme and outrageous if:

    • Continuous in nature

    • Directed toward a certain P (child, elderly, etc.)

    • Committed by a certain D (innkeeper, common carrier)

• That causes severe emotional distress

Third-person liability if:

• P is present and a close relative of X, and D knows P is present and a close relative of X, OR

• P is present, and D knows P is present, and P suffers some kind of physical harm from the emotional distress

Necessity defenses

• Public necessity: action was necessary for public welfare/community at large

• Private necessity: action was necessary to prevent injury to D or his property, or property of another

Standard of care—typical & special rules, plus affirmative duties

Typical = reasonable person standard

Special duties:

• Those with advanced skills or knowledge

  • Held to that higher standard

• Professionals

  • Held to the standards of a reasonable member of the profession

• Children of age X

  • Held to the standard of a child of age X, unless the child is engaging in adult activities (like driving a car)

• Common carrier

  • High degree of care

Affirmative duties to act:

• Special relationship—landlord / tenant, business owner / customer, hospital / mental patient

• If D caused the danger

• If D volunteers aid, he must proceed in rendering the aid with reasonable care

Duties of owners of land to occupiers of land

• Unknown trespassers » no duty

• Known trespassers » protect from manmade death traps

• Licensee (social guests) » protect from known harms (no duty to inspect)

• Invitee (business purpose) » protect from known and reasonably knowable harm (which mean that there is a duty to inspect, and repair)

Note on attractive nuisances… A landowner must exercise reasonable care to avoid foreseeable injury to children if:

• Landowner knew or should have known that children trespass in the area

• Conditions pose an unreasonable risk of death or serious harm

• Due to their youth, the children do not realize the danger

• The expense to remedy is slight compared to the risk

Res ipsa loquitor

P can use this to prove breach where P otherwise lacks evidence:

• The accident that happened typically does not happen unless someone has behaved negligently

• Only the D could have acted at the time the accident took place—i.e., there are no alternative parties or causes

Multiple causes

• The parties involved will be jointly and severally liable when their actions were each a substantial factor in causing the harm

  • If harm can be apportioned between Ds, then they typically will not be jointly and severally liable

• If it’s not known which of several actors caused the accident, each D has the burden of proof of showing that it wasn’t him

Pure and modified comparative negligence

• Pure: if P was X% at fault, P can recover 1 - X%, even if X > 50%

• Modified: if P was X% at fault, P can recover 1 - X%, provided that if P was > 50% at fault, then P recovers $0

Strict liability

Three categories for this:

• Abnormally dangerous activities (mining, anything with explosives or pesticides)

  • The activity creates a high degree of risk

  • The risk cannot be eliminated with the exercise of reasonable care

  • The activity is not common

  • The activity is not appropriate for the location

• Wild animals (or domesticated animals if known to be dangerous)

• Products liability (strict liability branch)

  • See Products Liability card for detail

Products liability (strict liability branch)

1. D is a commercial supplier (anywhere in the supply chain)

2. D placed the product into the stream of commerce without substantial alteration

3. The product was defective:

   • Design defect—two possible tests

     • Consumer expectations test. A product must meet its users’ minimum safety expectations when used in a reasonably foreseeable manner.

     • Risk-utility test. A design is defective if the risk outweighs the utility and if the risk could be lessened by a reasonable, cost-effective alternative design

   • Manufacturing defect

   • Informational/warning defect

4. Causation

   • Actual

   • Proximate

5. Damages

Re: defenses…

• Compliance with industry standards is not exculpatory

• Cannot disclaim liability

Products liability (warranty branch)

• Express warranty

• Implied warranty of merchantability

• Fitness for a particular (rather than ordinary) purpose

  • Seller must know buyer intends to use product for the particular purpose and buyer must rely on seller’s judgment in recommending the product

Nuisance

Public nuisance

• Substantial and unreasonable interference with health, morals, welfare, safety, or property rights of the community

Private nuisance

• Substantial and unreasonable interference with another’s use or enjoyment of land

Miscellaneous torts

• Intentional misrepresentation

• Negligent misrepresentation

• Malicious prosecution

• Abuse of process

• Intentional interference with:

  • Contractual relations

  • Prospective economic advantage

Wrongful torts

• Wrongful termination

• Wrongful birth/life

• Wrongful death

• Loss of consortium

Injunctions

Temporary restraining order (TRO):

• P will suffer Irreparable harm

• P’s injury > D’s hardship

• Likelihood of success on the merits

• » Issues ex parte (no notice to other party) and can last up to 14 days

Preliminary injunction:

• Immediate harm to P’s property interest

• P’s injury > D’s hardship

• Likelihood of success on the merits

• » Court will impose a bond; preliminary injunction requires notice

Permanent injunction:

• Inadequate legal remedy

• Property right involve

• Feasibility (court won’t have to supervise closely)

• Balancing of hardships

• No defenses

  • Laches

  • Unclean hands

NIED

Near-miss:

• D acts negligently

• D causes P to suffer emotional distress

• P is in the zone of danger

• P suffers an actual physical manifestation of emotional distress

Bystander:

• D acts negligently and his actions cause X intense mental suffering

• P is closely related to X

• P was present at time of injury

• P personally observed the event

Exceptions:

• Mishandling of relative’s body suffices for NIED. (Mishandling = there was negligence involved.)

• Negligently announcing that someone is dying, has died, or has a serious injury/disease suffices for NIER

Wrongful death, survival actions, loss of consortium

A deceased victim’s tort claim survives his death and can be brought by his spouse or next of kin on his behalf.

Additionally, the spouse may bring a loss of consortium action on her behalf.

Damages

Damages must be certain and foreseeable and unavoidable (i.e., P must have mitigated what was possible to mitigate).

Products liability (the types)

1. Strict

2. Negligence

3. Misrepresentation

4. Intent

5. Warranty

Products liability (intent branch)

D will be liable if they intended certain consequences or knew that such consequences were substantially certain to occur.

Non-delegable duties & limitations to independent contractor delegations

Duties are not delegable to independent contractors when the work:

• Occurs in a public place, or

• Involves inherently dangerous activities

Also, employers (D) will be liable for the tort conduct of ICs if:

• P has reason to believe that IC is an employee of D

• D was negligent in hiring IC

• D knows that IC needs to commit a trespass

Defenses to property torts

D must prove:

• Acted with proper timing

• Had a reasonable belief that threat of harm was genuine

• Use of force was proportional

  • Deadly force ok in life-threatening situations only (not applicable to property torts)

  • Deadly force is always excessive when protecting property

Actual and proximate cause

Actual cause = but-for cause

Proximate cause = P’s injury was a foreseeable consequence of D’s breach

• This is where eggshell plaintiff comes in

• Superseding causes can negate proximate cause

Punitive damages

Not available in negligence unless D was wanton and willful, reckless, or malicious.

Indemnity

Where one party is an intentional tortfeasor, there is no contribution allowed in their favor. E.g., P1 and P2 are jointly and severally liable. P2 is the intentional tortfeasor. D recovers full amount from P1. P1 can get full contribution from P2, even though P1 was partially at fault.

Last clear chance

This is an exception to the bar on liability under contributory negligence. I.e., under contributory negligence, P’s claim is barred if P was at all at fault; but if D had the “last clear chance” to avoid the injury, then P’s contributory negligence does not bar the claim.