Torts -MBE

Negligence

duty, breach, causation, damages

Who do you owe a duty to?

only owe a duty for a foreseeable plaintiff

Duty standard

a reasonable person (what a reasonably prudent person would do in the circumstances)

A Professional's Duty

Act like other similar professionals with the same background, experience and training

A Parent's Duty

knows or should know the child will cause harm.

Duty to Aid

No duty to aid, unless you try to help or special relationship, then you owe the person a duty of reasonable care (what a reasonably prudent person would do under the circumstances)

Special Relationships for Duty to Aid

parent/child

employer/employee

transportation or hotel

Duty to Unknown trespasser

you owe no duty to an unknown trespasser

Duty to Known trespasser /Licensee

duty to warn of known dangers

Who is a Licensee?

based on social or personal relationship

e.x. inviting someone to come over to your house

Duty to Invitee

duty to warn, clean up, and make safe

Who is an Invitee?

a person who comes in for a commercial or business reason

e.x. me going to nordstrom rack

Breach

did not do the duty

Two Types of Causation

Actual Cause or Proximate Cause

Actual Cause

But for Test

Proximate Cause

Foreseeable

Negligence Per Se

(1) violation of a statute

(2) The injured party is a part of the class of persons the statute was designed to protect

In a claim for negligent misrepresentation, can the plaintiff recover for purely emotional distress with no pecuniary (economic) loss?

No, recovery is usually limited to pecuniary (economic) loss unless the misrepresentation involves a risk of physical harm.

Res Ipsa Elements

(1) act which would not occur absent negligence

(2) Defendant had exclusive control of the instrumentality

Res Ispa Generally

creates the inference of negligence, but does not prove liability

Two Types of Strict Liability

(1) Wild Animals

(2) Abnormally Dangerous Activities

Wild Animals

Injury is from Animal itself or because It's a Wild Animal!!

Domestic Animals

Not strictly liable for domestic animals unless you know the animal has dangerous propensities.

*Cant domesticate a wild animal**

Abnormally dangerous activity

blasting, explosives, dangerous hazardous, etc. Chemicals

To be strictly liable the harm has to come from the hazardous materials

Defense for strict liability

assumption of the risk

Three theories to sue for product's liability

1. Strict Product Liability

(which includes inadequate warning or failure to warn)

2. Negligence

3. Warranty

Negligence PL

someone in the chain of selling (i.e. retailer, manufacturer, etc.) failed to do something they were supposed to do

Warranty

there was a label, sticker, or something in writing how the product would work

Strict Liability PL (strict liability in tort)

product was defective when it left the factory, sold by seller engaged in business of selling product, sold to foreseeable user who used it in a manner that it was intended.

Defense for strict liability PL

misuse of item

What is the economic loss doctrine (strict product liability)?

The economic loss doctrine prevents a party from recovering for purely economic damages in tort, requiring recovery to be sought through contract law instead. This doctrine applies in cases of strict product liability when a product failure results in only economic losses, not physical injury or property damage.

What happens when damage is just to the property itself (Strict Product lliabiity)Liabil?

In strict product liability cases, damage limited to property itself typically results in claims being barred under the economic loss doctrine, as recovery must be pursued through contract law rather than tort. (NO RECOVERY)

Nuisance

two types

1. private nuisance

2. public nuisance

Private Nuisance

unreasonable interference with the use and enjoyment of someone's property.

MUST BE REASONABLE TO AN OBJECTIVE PERSON

Public Nuisance

effects everyone/ the community at large brought by a public official.

if not brought by a public official, but a private person, special damages are needed.

Defenses to liability

Contributory

Pure Comparative

Modified/Modern Comparative

Assumption of the Risk

Contributory

even if Plaintiff is 1% liable, the Plaintiff is precluded from recovering damages

Pure Comparative

Plaintiff's recovery is reduced by the percentage of his fault

Modified/Modern Comparative

If Plaintiff is more than 50% liable he cannot recover

Joint and Several Liability

two or more defendants cause a single accident, Plaintiff does not know who caused it, Plaintiff can sue both or just one defendant, who would then be liable for all the damages

Contribution

defendant can choose the other defendant to sue

vicarious liability

employer will be liable for the negligent acts of an employer as long as the employee was acting in the scope of his/her duties

independent contractor

whoever hires an independent contractor is not liable for the negligent acts of the independent contractor except for:

1. the IC was engaged in abnormally dangerous activities

2. Nondelegable duty (safety for public at large ex. sidewalks, lobbies of offices).

7 types of intentional torts

1. battery

2. assault

3. false imprisonment

4. intentional infliction of emotional distress (IIED)

5. Trespass to Land

6. Trespass to Chattels

7. Conversion

2 general principals of intentional torts

1. extreme sensitivity of P is ignored

2. No incapacity defense

Elements of Battery

1. intent

2. harmful or offensive contact

3. contact must be with the Plaintiff's person

What does plaintiff's person include?

anything that the Plaintiff is holding, touching, or carrying

Elements of Assault

1. intent

2. must place plaintiff in reasonable apprehension

3. apprehension of an IMMEDIATE battery

what is apprehension?

knowledge

What is immediacy?

words alone are not immediacy; must be words coupled with conduct

What types of words can negate immediacy?

1. conditional words

2. words that promise something in the future

Elements of False Imprisonment

1. intent

2. commit act of restraint (Plaintiff must be aware)

3. confined in a bounded area

Can threats be an act of restraint?

yes, if an ordinary person would not feel free to leave

Can omission be an act of restraint?

yes if there was a pre-existing duty

Confinement in bounded area

Plaintiff not bounded if there is a reasonable means of escape that Plaintiff can reasonably discover.

When is there no reasonable way out

when the only option is disgusting, humiliating, dangerous or hidden

Elements for Intentional Infliction of Emotional Distress

1. intent or recklessness

2. engage in outrageous conduct

3. Plaintiff suffers from extreme emotional distress

Outrageous Conduct

exceeds all bounds of decency tolerated in a civilized society

Mere insults are never outrageous

Hallmarks of outrageousness

1. repeated conduct

2. common carrier or inkeeper

4. Plaintiff member of fragile class of persons

Fragile class of persons

young children, pregnant women (have to know they are pregnant), and old persons

Advance Notice of Emotional Sensitivity

if D has advance knowledge of emotional sensitivity and the D deliberately goes after it, that conduct is outrageous

Evidence required for IIED

any evidence

Elements for Trespass to Land

1. intent

2. physical invasion

3. Interfere with Plaintiff's exclusive possession of land

Physical invasion

1. enter property on foot or vehicle, do not need to know cross boundary line.

2. throw, propel a physical item on property

3. infringe on exclusive right to possess land above and below

Elements for Trespass to Chattels and Conversion

involve intentional interference with personal property

Two ways to interfere (trespass of chattel and conversion)

1. damage

2. stealing, taking away property (ex. vandalism, theft)

Distinction between trespass to chattels and conversion

small harm= trespass to chattels

BIG harm= conversion (a forced sale)

Conversion liability

Even if you were directed to do something (tree specialist cutting a tree for landlord that was his neighbors), both are still liable for conversion.

3 Affirmative Defenses for Intentional Torts

1. consent

2. protective privileges

3. Necessity

2 types of Consent

1.express

2. implied

express consent

A P with capacity gives spoken or written consent for D to act in a certain way that would be a tort. Fraud or duress will negate consent

implied consent

1. arise based on custom/usage

2. reasonable interpretation of conduct surrounding circumstances

Exceed scope of consent?

defendant is then liable for the act

3 types of protective privileges

1. self-defense

2. defense of others

3. defense of property

Protective Privileges

must respond from immediate threat from P and under the reasonable belief that the threat is genuine

Amount of force allowable

force must be limited to appropriate or proper force.

Can only use deadly force in a life-threatening situation

2 Types of Necessity

1. public necessity

2. private necessity

Necessity is an affirmative defense when

dealing with trespass to land, chattels, or conversion

public necessity

defendant commits property tort to protect community or significant group of people

*absolute defense*

private necessity

emergency situation to protect own interest or one other's interest

*qualified or limited defense**

Qualified or limited defense

Defendant still liable for any damages to Plaintiff's property but immunized for nominal or punitive damages

Continuing emergency

as long as an emergency continues Plaintiffs must allow Defendant to be in a place of safety while emergency continues

3 Elements of Defamation

1. Defendant must make a defamatory statement specifically identifying Plaintiff

2. Publication

3. Damage

What is a defamatory statement?

a statement that adversely affects reputation

Insults are not considered defamatory

A political candidate or public figure sues for defamation over a false statement (used illegal drugs). What must the candidate prove about the defendant’s state of mind to win?

The candidate must prove actual malice, meaning the defendant knew the statement was false or acted with reckless disregard for the truth.

How to affirmatively identify the Plaintiff

does not have to be by name, can narrow the field

ex. the attorney general of S.FLa. said

Publication

Plaintiff must show defendant shared defamatory statement with at least one person other than defendant himself.

*Does not have to be intentional**

3 types of damages for defamation

a. libel

b. slander

c. slander per se

Libel

defamatory statement written down or permanently captured

*damages presumed*

Slander

spoken defamatory statement

need to show economic loss, it is insufficient to show emotional or dignatory harm

4 categories of slander per se

1. statement relating to business or profession

2. statement that Plaintiff committed a crime of moral turpitude

3. imputes that a woman is unchaste

4. statement that P suffers from a loathsome disease (leprosy or venereal disease)

Slander per se

spoken defamatory statement that has a presumption of damages

3 affirmative defenses for Defamation

1. consent

2. truth

3. privileges

Two kinds of privileges

1. absolute

2. qualified

Who gets Absolute privilege (Defamation)

spouse

governmental officers (lawyers, judges, legislator, governor, etc.)

Elements for getting qualified privilege (Defamation)

1. must have honest and good faith belief in accuracy of statement

2. confine matters to those that are relevant to the subject at hand

Additional requirements for defamatory statements on a matter of public concern

1. Plaintiff must prove fault

2. Plaintiff must prove falsity

*truth is no longer a defense*

Fault (public)

recklessly or knowingly

Fault (private)

negligence; not made with reasonable effort