Torts

Cause of Action

A. An act

B. A failure to perform a legal obligation/duty

C. A violation or invasion of another’s right

Every Cause of Action if a unique combination of different facets

• facet 1 + 2 are affirmative defense justifications

Facet (1) Plaintiffs Case

Facet (2) Defendants Case/Response

Facet (3) Remedies

Levels of fault for Torts:

A. Intentional

B. Reckless

C. Negligence: careless

D. Innocent: no liability

• Strict Liability (5th level of fault for torts)

  • automatic liability

Intentional Torts

A. Classified by harm:

1. Harm to person

a. Assault: threat of touching someone

b. Battery: action of touching someone

c. False Imprisonment

d. Infliction of Emotional Distress

Assault - Civil Victim - C/L

Facet I: Plaintiff’s case in chief (elements)

1. An intentional unlawful threat to cause bodily injury to another by force

2. Under circumstances which create in the other person a well-founded fear of imminent peril

• Objective Test: requires asking would a reasonable person be reasonably certain that consequences will result from the defendant’s threats

a. victim was aware of threat

b. the harm must be imminent

• defendant’s threat does not equal the capacity to go through with it but plaintiff’s belief that the defendant is capable to go through with it

Facet II: Defendant’s Affirmative Defenses

1. Self Defense

2. Consent

3. Privilege

4. Statute of Limitations - 2 years

5. Res Judicata (similar to double jeopardy seen in criminal cases)

Facet III: Remedies

1. Compensatory

2. Punitive: court may award additional money beyond compensation

3. Equitable: focus on preventing future harm

Civil Victim - Tort of Battery - C/L - State Law

Facet I

1. Defendant touched the plaintiff’s person (extension —> clothes, hair)

• could be delayed, not imminent

2. With the intent to touch

3. In a manner offensive to a reasonable person (does not have to prove injury)

Facet II

1a. Consent (obj. test)

1b. Medical Consent (obj test + informed consent)

2. Self-defense

• defendant must prove

• reasonable apprehension of imminent bodily harm

• used reasonable counterforce to avert the harm

3. Privilege of arrest (Police Work)

• valid arrest

• force used = obj. test

4. Statute of limitations - 2 years

5. Res Judicata

Facet III

1. Compensatory Damages

2. Punitive

3. Equitable

Crime of Battery v. Tort of Battery

Facet I: same

Facet II:

• can argue insanity and double jeopardy in criminal

• wide range of batter in civil tort (murder, rape, manslaughter)

Facet III:

1. Incarceration

• Criminal Battery

2. Fines

• Criminal Battery: paid to state

• Tort of Battery: paid to victim

Civil Victim - Tort of Defamation - C/L Statutory

• slander = spoken

• libel = written

a. Facet I:

1. Defendant made a false statement of fact about the Plaintiff

2. Statement was published to a 3rd party (one other person heard/saw it)

3. The statement was made with an element of fault

• negligence

  • no reasonable care for establishing the truth

4. Plaintiff suffered injury to his reputation as a result of the statement

• hard to prove

If P is a public figure:

5. Defendant made the statement with “actual malice“ —> ill will

• malice: defendant knew statement was false or had reckless disregard for the truth

Rationale behind malice element for public figures

1. can easily counter false statements than private figures

2. famous people should expect some negative aspects come with fame and public acclaim

b. Facet I: Defamation Per Se - second way of handling defamation (damages presumed)

• per se = per statute

  • legal doctrine (statute): refers to statement that are considered to be inherently harmful or damaging to a persons reputations

1. False statements about a loathsome disease (STD)

2. False statement of professional or unfitness for a job (drunk Dr.)

3. False statements about a crime involving moral turpitude (severe crimes)

Facet II:

1. Truth

2. Privilege

a. Absolute: total immunity to not be sued for liability for defamation

1. when the participants are in judicial proceeding

2. government officials when doing official jobs

b. Qualified: privilege attaches if ALL the following conditions are met

Defendant…

1. made it with the good faith belief in the truth of the statement

2. sees it serves a legitimate business need

3. makes statement only on a proper occassion

4. makes statement only to person’s with legitimate common interest in hearing the statement

3. Opinion

• cannot say its “in your opinion“

• court views circumstances

4. Consent

• must reserve right to view

5. Statute of Limitation - 1 year (2 years in some states)

6. Res Judicata

Facet III:

1. Compensatory

2. Punitive

3. Equitable

Civil Victim - Tort of Trespass - C/L and Statutory

• real property = land

1. trespass

2. nuisance

• personal = movable

1. conversion

Facet I (can just prove one)

1. intentionally enters or remains on land in the possession of another

2. causes a thing or a third person to do so

3. fails to remove from the land a thing that he is under a duty to remove

Facet II:

1. Express Consent

2. Implied Consent (obj. test)

3. Emergency

4. Statute of Limitations - 5 years

5. Res Judicata

Facet III:

1. Compensatory

2. Punitive

3. Equitable

Civil Victim - Tort of Nuisance - C/L

Facet I:

1. Defendant intentionally, negligently, or reckless interfered with Plaintiff’s use and enjoyment of his/her land or continued her conduct, after learning of actual harm or substantial risk of future harm to the Plaintiff’s interest

2. Substantial interference with Plaintiff’s interest

3. Unreasonable for the Plaintiff to bear it or to bear it without compensation

• Balancing Test (goal is fairness):

1. nature and gravity of the harm

2. burden of preventing the harm

3. usefulness of the conduct

Facet II:

1. Zoning Laws (restrictions)

2. Plaintiff “came to a nuisance“

• ex: a factory has been making loud noises for years and you buy a house near that factory, then you sue for nuisance

3. Statute of Limitations

• 5 years (property based)

• 2 years (personal injury impact)

4. Res Judicata

Facet III:

1. Compensatory

2. Punitive

3. Equitable

4. Self-Help - Abatement

• take care of it yourself

Difference between Trespass and Nuisance

• trespass = physical

• nuisance = something owned by Plaintiff

Civil Victim - Tort of Conversion - C/L

Facet I:

1. the Plaintiff owns or has the right to possess the personal property in question at the time of interference

2. the defendant intentionally interfered with the plaintiff’s personal property

3. the interference deprived the plaintiff of possession or use of the person property in question

4. the interference caused damages to the plaintiff

Facet II:

1. Consent (necessary)

• public:

• private: defendant must pay for damages

2. Statute of Limitations - 5 years

3. Res Judicata

• Convergence: Defendant must exercise control over the property

• Interference with ownership rights: significance that justifies conversion

• Authority of Law: sheriff property, criminal forfeiture

Facet III:

1. Compensatory

2. Punitive

3. Equitable

Civil Victim - Tort of Fraud - C/L and Statutory Law

A. Standard: By clear and convincing evidence

B. Cause of Action

Facet I:

1. Misrepresentation of a material fact

• one that matters, a fact that was significant in the Plaintiff making of his/her decision

a. Opinion

b. Nondisclosure/exceptions: C/L precedent = caveat emptor —> buyer beware, all three has a duty to speak

(1) statutory duty to disclose (SEC Act 1934: Co must disclose financial info to shareholders)

(2) fiduciary duty: relationship built on trust (ex: Dr and Patient)

• duty to inform

• duty to loyalty

• duty of due care

(3) half-truths: must tell full truth

c. Promises: cannot be on the basis of fraud without a contract

2. Scienter

• Plaintiffs

(1) knew of the falsity of the statement

(2) made statement with intent to deceive (subjective test, what defendant knew)

a. Accountants (Exceptions)

• Ernest argues can’t sue for fraud because of Scienter intent to deceive

  • court said for all accountants use reckless (disregard for the truth)

3. Reasonable reliance by the plaintiff

• court asks 2 questions:

(1) would a reasonable person rely on such a statement

(2) did the plaintiff know about the misrepresentation

a. Third party (exceptions) beneficiary: was going to benefit

4. Injury to the plaintiff

5. Causation of injury

Facet II:

1. Res Judicata

2. Statute of limitations - 2 years

Facet III:

1. Compensatory

2. Punitives

3. Equitable

Civil Victim - Tort of Invasion of Privacy

A. Intrusion

Facet I:

1. D intentionally intruded or invaded, physically or otherwise, upon the solitude or seclusion of the P or his private affairs or concerns

2. the intrusion would be highly offensive to a reasonable person

Facet II:

1. Public Space

2. Consent

3. Res Judicata

4. Statute of Limitations - 1 year

Facet III:

1. Compensatory

2. Punitives

3. Equitable

B. Appropriation

Facet I:

1. Use of someone’s name, likeness, identify or photograph for trade or advertising (commercial use) without consent

2. Private vs. Public Figure

• private: personal right to be left alone

  • show desire to be left alone

  • must cause mental harm

  • rights dies with person (commercial use can now occur)

• public figure: property right to be left alone

  • violation = financial loss

  • right does not die, can be inherited/transferred/gifted

Facet II:

1. Newsworthiness

2. Consent

3. Parody and satire (face, video, image)

4. Res Judicata

5. Statute of Limitations - 1 year

Facet III:

1. Compensatory

2. Punitives

3. Equitable

C. False Light

Facet I:

1. Attributing characteristics, conduct or beliefs that are false, and that are highly offensive to the plaintiff

Facet II:

1. Truth

2. Individual not identifiable

3. Res Judicata

4. Statue of Limitations - 1 year

Facet III:

1. Compensatory

2. Punitives

3. Equitable

Difference between Defamation and False Light

1. Damage

• Defamation: person’s reputation

• False Light: person’s feelings

2. Publication/Publicity

• Defamation: one person must see

• False Light: a lot of people must see

D. Public Disclosure of Embarrassing Private Facts

Facet I:

1. the public disclosure of TRUE private facts

2. the matter made public is so intimate that publication outrages the public’s sense of decency

3. and the matter is not of concern to the public

4. publicity

Facet II:

1. Newsworthiness

2. Consent

3. Doesn’t outrage community notions of decency

4. Event took place in public

5. Res Judicata

6. Statute of Limitations - 1 year

Facet III:

1. Compensatory

2. Punitives

3. Equitable

Civil Victim - Wrongful Interference with a Contractural Relationship - C/L

Facet I:

1. A valid, enforceable contract between two parties

2. A third party’s knowledge of the contract

3. The third party’s intentionally causing either of the two parties to break the contract

Facet II:

1, Privileged interference

• you signed a K with employer —> privilege interference cancels another employer pouches you new K

• ex: non compete, won’t work for a comp after ____ years of quitting

2. Res Judicata

3. Statute of Limitations - 5 years

Facet III:

1. Compensatory

2. Punitives

3. Equitable

Civil Victim - Tort of Negligence

A. Cause of Action

Facet I (a)

1. Existence of a Duty of care owed by D to the P

2. Breach of duty, by unreasonable behavior of D

3. Actual cause - causation in fact

4. Proximate cause - scope of liability

5. An actual injury/loss/harm (need proof)

• simple negligence —> most common (not entitle to punitive)

1. Duty of Care

a. General Rule

• judge decided

• a legal obligation requiring individuals to act with reasonable care to avoid harming others

b. Reasonably prudent person standard (obj test)

c. Special duties of care

• ex:

  • parent/child

  • dr./patient

  • employer/employee

  • schools/student

  • landlord/tenant

  • common carriers/passengers

  • innkeeper/guests

d. Landowner’s duty of care

1. Trespass - duty = none

• Exception: if the owner knows that children will trespass on their property and dangerous conditions exist, the owner must take reasonable steps to correct the conditions or to ensure they will not have access to the part of the property

• Licensee: someone who enters another’s property with the property owner’s permission but for their own purpose or benefits (Social Guest)

  • Duty to Warn: of any dangerous conditions/activities which the licensee is unlikely to discover

• Invitee: someone who is invited onto a property of another, for the purpose that benefits the property owner (Business Guest)

  • Along with Duty to Warn, must also Duty to Inspect: regularly the property for any known dangerous activities and concludes and ensuring it is safe by to the part of the property setting safeguards

• Exception to the exception: when a defendant has control over the situation that leads to the plaintiffs injury

  • no one has a duty to save someone in peril (immediate danger)

2. Breach of Duty of Care

• jury decides

  • in determining the defendants conduct was reasonable modifications are made:

(1) Children - use reasonable person from same age, intelligence, experience (under 18)

(2) Physical disability - modify down

(3) Superior skills/knowledge - modify up

(4) Emergency - modify base off extreme or nonexistence actions

• Reasonableness of Plaintiff’s conduct is determine by

(1) harm will occur

(2) seriousness of the harm

(3) cost of precautions

3. Actual Causation

• “But For“ Test

  • but for the defendant conduct, would the harm to the plaintiff have occurred?

3. Proximate Causation

• Foreseeability Test

  • was the harm a reasonably foreseeable consequence of the defendant’s conduct

a. Superseding Cause: accidents after is not a liability

3. Injury (show proof)

B. Special Negligence Doctrine and Statutes

1. Res Ipsa Loquitur

• the thing speaks for itself

• the event causing the damage/injury is one that does not ordinarily occur in the absence of negligence

Plaintiff must show:

(1) the event is of a kind that ordinarily, occur in absence of someones negligence

(2) the defendant has exclusive control over the instrumentally that cause the event

(3) the event was not due to any fault of plaintiff

(4) the evidence explaining the incident is more revealable available to defendant > plaintiff, the burden is on the defendant

2. Negligence Per Se

(1) Duty

(2) Breach of Duty = Breach of Statute

(3) Proof of Causation (actual + proximate)

(4) Injury

3. Gross Negligence

a. Definition: a defendant reckless disregard for, or willful indifference, the punitives

• intentional

• reckless

• negligence

• innocence

4. Vicarious Negligence

• liable for somebody else

• permits another person to be held liable for the negligence conduct of another

Employer

• Employee - commit tort within the course of employment

(1) Employee act for Employer

(2) Employers can spread cost (they know its coming)

5. Employer Negligence

a. Workplace negligent hiring

b. Negligent retention

c. Negligent training and supervision

d. Failure to provide proper safety equipment

e. Refusal to eliminate an imminent danger

f. Failure to maintain or repair tools and heavy equipment used to perform work

Facet II:

1. Contributory Negligence

• 4 states have (VA included)

  • if plaintiff has any fault that contributed to his/her injury he/she get 0

2. Comparative Negligence

• pure comparative

• modified

3. Assumption of Risk

Defendant must show:

(1) Plaintiff had knowledge of risk or should have known of the risk

(2) Plaintiff fully understood the specific risk

(3) Plaintiff voluntarily assumed risk by placing themself in zone of danger only assume those risks that are associated with that activity

4. Exculpatory Agreements - A’s not to sue in tort

5. Statute of Limitations

6. Res Judicata

Facet III:

1. Compensatory

2. Punitives

3. Equitable

Strict Liability

• absolute, without fault

  • base on activity defendant is engaged in

1. Injuries by animals

a. Domestic animals

b. Wild animals

2. Injuries caused by ultra hazardous activities (ex: 4th of July)

3. Product Liability (ex: defect —> blows-up)

4. Defenses

a. Plaintiff knowingly and unreasonable subject themselves to the risk of harm

b. assumption of the risk

c. abuse or misuse