Torts

Intentional Torts

Intentional Torts: Defendant intends to do the act that causes plaintiff injury

Elements

1. Act

   1. The act you must prove is a volitional (willful) movement by the defendant

      • Means reflexive movements are not included (for example, a seizure or spasm)

   2. Motivation doesn’t matter.

2. Intent

   1. Specific Intent

      • D’s purpose in acting is to bring about tortious consequences

   2. General Intent

      • D knows with substantial certainty that such consequences will occur

   3. Transferred intent (Can only be invoked if both the tort intended and the tort that results are one of the following: assault, battery, false imprisonment, trespass to land, trespass to chattels)

      • D commits a different tort against that person

        • A intends to scare B by shaking her fist at B, which is assault, but A misjudges the distance and hits B, which is battery

      • D commits the intended tort against a different person

        • A intends to hit B, but horribly misjudges the distance and hits the person standing next to B.

      • D commits a different tort against a different person.

        • A intends to hit B, which is a batter, but misjudges the distance and hits C’s water bottle which spills all over C’s computer, which is trespass to chattels or conversion.

3. Causation

   1. D’s conduct is a substantial factor in bringing about the injury

Notes

• Children are liable for their intentional tortious conduct as long as they have the capacity to intend the natural consequences and they intended those consequences.

Two Categories

Intentional torts against the person

1. Battery (intentional harmful or offensive contact with P’s person)

2. Assault (intentional placement pof P in reasonable apprehension of an immediate harmful or offensive contact)

3. False Imprisonment (intentional confinement in a bounded area)

4. Intentional Infliction of Emotional Distress (intentionally extreme and outrageous conduct causing severe emotional distress in P)

5. Defenses

   • Consent

   • Self-Defense

   • Defense of Others

Intentional torts against property

1. Trespass to Land (intentional physical entry onto P’s real property)

2. Trespass to Chattels

3. Conversion

4. Defenses

   • Consent

   • Defense of Property

   • Recapture of Chattels

   • Necessity

Intentional torts against the person - Battery

Intentional harmful or offensive contact with P’s person

1. Act: Act by D that brings about harmful or offensive contact to the plaintiff’s person.

   1. Harmful Contact → Causes actual pain, injury, or disfigurement

   2. Offensive Contact → if a reasonable person would find objectionable or that would offend their dignity

      1. Exception: If the actor KNOWS that a particular contact is highly offensive to a particular person, that contact is offensive even though it wouldn’t offend a reasonable person’s sensitivities

   3. Person → P’s body or anything connected to P

2. Intent: Intent by D to bring about harmful or offensive contact

   1. Intent to bring the injury is not required

3. Causation

   1. Direct: D’s harmful or offensive contact is directly to P.

   2. Indirect: D sets into motion a force that ultimately brings about the harmful or offensive contact

4. Damages not required.

   1. P can recover nominal damages even if actual damages aren’t proved.

   2. P may recover punitive damages for malicious conduct.

Intentional torts against the person - Assault

Intentional placement of P in reasonable apprehension of an immediate harmful or offensive contact

1. Intent & Act: Intentional creation of reasonable apprehension in the plaintiff of immediate harmful or offensive contact

   1. Apprehension → P must be placed in an awareness of an incoming battery

      • Awareness required. Fear not required.

   2. Reasonable → If a reasonable person would think they were about to suffer a battery

   3. Reasonable Apprehension 

      1. Words alone are not enough for assault

         1. Some sort of an overt act by D is necessary.

      2. Words alone can negate reasonable apprehension.

      3. Treats of future contact are also not sufficient, because a P must be placed in apprehension of an immediate contact. 

   2. D’s apparent ability to act is enough, even if it is factually impossible to make contact.

   3. Transferred Intent: If the actor intended one of the other intentional torts, but an assault resulted, the intent is transferred over to the assault.

2. Causation

3. Damages not required.

   1. P can recover nominal damages even if actual damages aren’t proved.

   2. Malicious conduct may permit recovery of punitive damages.

Intentional torts against the person - False Imprisonment

Intentional confinement in a bounded area

1. Intent & Act: Intent to confine or restrain the plaintiff to a bounded area.

   1. Bounded Area → P’s freedom of movement is limited in all directions, such that there is no reasonable means of escape known to P.

   2. P must be aware of the confinement or be harmed by it.

      1. Damages: If P suffers some injury as a result of confinement, she can sue for the damages resulting even if she were not aware.

   3. Length of time does not matter. 

2. Exception: Shopkeeper’s Privilege

   1. Shopkeepers must use reasonable force in detaining the suspect and keep the confinement limited to a reasonable amount of time.

      1. Reasonable amount of time → Last only long enough for the employees to complete the investigation

   2. No deadly force may be used. 

3. Causation

4. Damages not required.

   1. P can recover nominal damages even if actual damages aren’t proved.

   2. Punitive damages may be recovered if the defendant acted maliciously. 

Intentional torts against the person - Intentional Infliction of Emotional Distress

Intentionally extreme and outrageous conduct causing severe emotional distress in P

1. Intent & Act: Act by the defendant amounting to extreme and outrageous conduct 

   1. Extreme and outrageous conduct is conduct that exceeds the bounds of all decency

   2. Recklessness will satisfy intent requirements. 

2. Causation

   1. Bystander Cases:

      1. D’s conduct is direct at a third person, P suffers because of it, P may recover either by 

         1. Showing the prima facie case elements of emotional distress OR

         2. That (1) they were present when the injury occured; (2) distress resulted in bodily harm or the P is a close relative of the third person; and (3) D knew these facts.

3. Damages

   1. P must suffer severe emotional distress as a result.

      1. Proof of physical injury generally isn’t required.

Intentional torts against the person - Defenses - Consent

1. 2 types

   1. Express Consent

      1. Mistake will undo express consent if D knew or and took advantage of the mistake. 

   2. Implied Consent

      1. Apparent Consent → Consent a reasonable person would assume was given by P’s conduct

      2. Consent Implied by Law → Consent will be implied by law if harmful or offensive touching is needed to save a person’s life

2. Was their valid consent? 

   1. Limitations

      1. Fraud negates consent if the fraud goes to an essential matter. 

         1. If the fraud goes to a collateral matter, the consent remains effective. 

      2. Duress negates consent. 

         1. Unless the duress is only threats of future action or future economic deprivation. 

      3. A person must have the capacity to consent.

         1. Incompetents, drunks, very young children are incapable of consenting to tortious conduct. 

      4. Generally, a person cannot consent to a criminal act.

         1. A person can consent as long as the criminal act doesn’t breach the peace.

      5. Mistake negates consent if D knew of and took advantage of the mistake. 

   2. Not enough to invalidate consent

      1. Threats of future action

      2. Economic treats

3. Was D within the scope of that consent?

   1. Limited to the consent given.

      1. What goes beyond? Anything a reasonable person would think is beyond consent.

Intentional torts against the person - Defenses - Self Defense

1. If a person has reasonable grounds to believe they are being, or are about to be, attacked, they may use such force as is reasonably necessary for protection against the potential injury.

   1. Only enough force to prevent the perceived harm may be used.

      1. Deadly force may be used only if it’s reasonable to believe there is danger of serious injury or death.

         1. Majority Rule → No duty to retreat

         2. Modern Trend → Requires a person to retreat before using deadly force, unless they are in their own home

   2. Accidentally injuring someone else does not destroy the defense of self-defense. 

2. Not available to the initial aggressor.

   1. UNLESS other party responds to aggressor’s nondeadly force by using deadly force

Intentional torts against the person - Defenses - Defense of Others

1. If a person reasonably believes that the person being aided would have the right of self-defense, the defense of defense of others is available.

   1. Even if the person aided has no defense. 

2. As much force they could have used in self-defense.

Intentional torts against property - Trespass to Land

Intentional physical entry onto P’s real property

1. Act: Physical invasion of the plaintiff’s real property,

   1. Physical invasion can be by a person or object

      1. Smells, sounds, and vibrations are not.

   2. Real property 

      1. Things affixed to land

      2. Land surface

      3. Reasonable distance above and below the surface of the property

   3. P does not need to be the owner of the land. They can be anyone in actual or constructive possession of the land.

2. Intent: to bring about a physical invasion

   1. Intent to trespass not required; just the intent to enter onto that particular piece of property

      1. Trespassers need not even know that the land belongs to someone else.

   2. Transferred intent applies.

3. Causation

4. Damages not required.

   1. P can recover without showing actual injury to the land.

Intentional torts against property - Trespass to Chattels

1. Act by the defendant that interferes with the plaintiff’s right in a chattel (personal property)

   1. Acts that damage the personal property (intermeddling)

   2. Acts of Dispossession → depriving the owner of possession of the personal property

2. Intent: to perform the act of interference

   1. Intent to damage or to deprive someone of use is not necessary.

   2. Mistake isn’t a defense.

      1. Good faith doesn't matter. 

3. Causation

4. Damages Required.

   1. Actual damages - not necessarily to the chattel, but at least to a possessory right - are required.

Intentional torts against property - Conversion

1. Act by the defendant that interferes with the plaintiff’s right in a chattel (personal property)

   1. Interference with the P’s right in the chattel so serious that it warrants requiring the defendant to pay the chattel’s full value

      1. Doesn’t require damage so extensive that the chattel is worthless.

   2. Acts of conversion include: wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel

2. Intent: to perform the act of interference

   1. Factors: time and extent of use

   2. Intent to damage or to deprive someone of use is not necessary.

   3. Mistake isn’t a defense.

      1. Good faith doesn't matter. 

3. Causation

4. Damages

   • See above

5. Remedies

   1. P may recover fair market value at the time of conversion (damages) OR 

   2. Possession of the chattel (replevin)

Intentional torts against property - Defenses - Consent

1. 2 types

   1. Express Consent

      1. Mistake will undo express consent if D knew or and took advantage of the mistake. 

   2. Implied Consent

      1. Apparent Consent → Consent a reasonable person would assume was given by P’s conduct

      2. Consent Implied by Law → Consent will be implied by law if harmful or offensive touching is needed to save a person’s life

2. Was their valid consent? 

   1. Limitations

      1. Fraud negates consent if the fraud goes to an essential matter. 

         1. If the fraud goes to a collateral matter, the consent remains effective. 

      2. Duress negates consent. 

         1. Unless the duress is only threats of future action or future economic deprivation. 

      3. A person must have the capacity to consent.

         1. Incompetents, drunks, very young children are incapable of consenting to tortious conduct. 

      4. Generally, a person cannot consent to a criminal act.

         1. A person can consent as long as the criminal act doesn’t breach the peace.

      5. Mistake negates consent if D knew of and took advantage of the mistake. 

   2. Not enough to invalidate consent

      1. Threats of future action

      2. Economic treats

3. Was D within the scope of that consent?

   1. Limited to the consent given.

      1. What goes beyond? Anything a reasonable person would think is beyond consent.

Intentional torts against property - Defenses - Defense of Property

1. Before defending property, the owner usually must ask the would-be assailant to desist.

   1. Circumstances make it clear that the request would be futile or dangerous, then a request to desist is not required

   2. Generally, a person can use reasonable force to defend their property. 

      1. Reasonable Force → No deadly force or force that may cause serious bodily harm

2. Limitations

   1. When the actor has a privilege to enter the land.

   2. Limited to preventing the commission of a tort against D’s property

      1. Once the tort to the property is complete, it’s over.

3. Shoplifting Detentions

   1. Shopkeepers can detain a suspected shoplifter for investigation if requirements are met.

      1. Reasonable belief as to the fact of theft; and

      2. Detention for only a reasonable period of time and only for the purpose of making an investigation; and

      3. Detention conducted in a reasonable manner and only nondeadly force

Intentional torts against property - Defenses - Recapture of Chattels

1. If chattel is on the move, D can use reasonable force to recapture it. 

   1. If there is no hot pursuit, the person has to use peaceful means such as the courts or police. 

   2. Before recapturing the chattel the owner usually must ask for the return of the chattels unless to do so would be futile or dangerous to do so.

2. Limitation

   1. The recapture may be only from the tortfeasor or someone who knew or should have known that the chattels were tortiously taken.

   2. When the actor has a privilege to enter the land.

Intentional torts against property - Defenses - Necessity

1. A person may interfere with the real or personal property of another if the interference is reasonably necessary to avoid injury that is substantially more serious that the invasion undertaken.

   1. Public Necessity → The act is needed to avoid a public disaster.

      1. The defense is absolute, and the actor isn’t liable for trespass or damaging the land or chattels interfered with.

   2. Private Necessity → The act is solely to protect harm to a person or a limited number of people. 

      1. The actor is liable for the actual damages they cause.

      2. If the act was to benefit the owner of the land, the defense is absolute.

Strict Liability

Defendant causes plaintiff injury without any fault on defendant’s part

1. Elements

   1. Defendant’s activity imposes an absolute duty to make safe

   2. Dangerous aspect of the activity was the actual cause and proximate cause of the plaintiff’s injury

   3. P suffered damage to their person or property

2. Types

   1. Products Liability

   2. Abnormally Dangerous Activities

   3. Animals

3. Affirmative Defenses

   1. Assumption of the Risk

   2. Comparative Negligence 

   3. Contributory Negligence

      1. Defense if the plaintiff knew of the danger and their unreasonable conduct was the very cause of the harm from the wild animal or abnormally dangerous activity or defective product

Strict Liability - Abnormally Dangerous Activities

1. 2 Requirements

   1. Create a foreseeable risk of serious harm even if reasonable care is exercised AND 

   2. the activity is not a matter of common usage in the community―it’s dangerous and people don’t commonly do it

2. Examples: blasting or manufacturing explosives, storing or transporting dangerous chemicals or biological materials, and anything involving radiation or nuclear energy

Strict Liability - Animals

1. Wild Animal → Owner of a wild animal is strictly liable to licensees and invitees for injuries caused by the animal if it is kept as a pet. 

   1. Generally not imposed in favor of trespassers.

      1. Need to prove negligence. 

2. Domesticated animals → Owner is not strictly liable for injuries caused by the animal

   1. Exceptions

      1. She knows of that animal’s dangerous propensities that are not common to the species

      2. Trespassing → strict liability for reasonably foreseeable damage

Strict Liability - Products Liability

Products liability refers to the liability of a supplier of a defective product when that product injures someone

Elements

1. D is a merchant

   1. Includes Entire Distribution Chain: manufacturers, wholesalers, and retailers.

      1. Does not extend to casual sellers

      2. Includes those who rent rather than sell products

   2. Privity is not required. Anyone can sue.

2. Product is defective

   1. What counts as a defect?

      1. Manufacturing Defects

         1. One unit comes out different (and dangerous) than the others

         2. P must show that the product was dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design. 

      2. Design Defects

         1. All the products are the same and equally dangerous

         2. P must show that a less dangerous alternative was economically feasible. Courts consider:

            1. Usefulness and desirability of the product

            2. Availability of safer alternatives

            3. The likely seriousness of an injury from the design in question

            4. Whether the danger would be obvious to the user

            5. Public expectations with regard to danger when using the product 

            6. Feasibility of eliminating of danger

         3. Manufacturers must take foreseeable misuse into account.

         4. Compliance with government standards is evidence but not conclusive. 

      3. Information Defect

         1. D failed to give adequate instructions or warnings about risks of harm

            • Treated by some states as a design defect

         2. Types

            1. Labels that are misprinted

            2. Labels that are missing altogether → Manufacturers are required to put obvious labels on their products to warn about.

            3. Misdated products or flawed users instructions that lead to harm

3. Product was not substantially altered since leaving D’s control

   1. If the product moved through normal channels of distribution, it will be inferred that the product was not altered AND that the defect existed when the product left the defendant’s control.

4. P was making a foreseeable use of the product 

   1. A “foreseeable” use does not mean an “intended” or an “appropriate” use.

Damages

1. Physical injury or property damage required.

   • Sole economic loss is denied.

Defenses

1. Disclaimers are irrelevant.

2. Contributory negligence a defense

3. Assumption of risk

4. Comparative negligence

Other Products Liability Theories

1. Liability based on Negligence

   1. Focus on the conduct of the defendants that put the product in the stream of commerce and whether they behaved reasonably

      1. Very difficult to hold intermediaries (such as retailers and wholesalers) liable for negligence because they can usually satisfy their duty through a cursory inspection

      2. No privity required

   2. Same elements as negligence

      1. Actual harm is required.

   3. Damages are the same as strict liability.

   4. Same defenses as strict liability and negligence.

      1. Disclaimers irrelevant  

2. Implied Warranties of Merchantability and Fitness

   1. Two warranties implied in every sale of goods:

      1. Merchantability → whether the goods are of aver-age acceptable quality and are generally fit for the ordinary purpose for which the goods are used

      2. Fitness for a particular purpose → 

         1. when the seller knows or has reason to know the particular purpose for which the goods are required and 

         2. that the buyer is relying on the seller’s skill and judgment in selecting the goods

   2. Breach: product fails to live up to either of the above standards

      1. Buyer, family, household, and guests can sue for personal injuries.

   3. Causation: same as negligence

   4. Damages REQUIRED: Personal injury, property damages, and purely economic loss (Disclaimers okay for this one)

   5. Defenses: assumption of risk (using a product while knowing of breach of warranty) and contributory negligence

3. Representation Theories

   1. D may be liable when a product does not live up to some affirmative representation

      1. Express Warranty → Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty

         1. Any consumer, user, or bystander can sue.

            • Consumer: If a buyer sues, the warranty must have been “part of the basis of the bargain.”

            • Bystander: If the plaintiff is not in privity (for example, a bystander), they need not have relied on the representation as long as someone did.

         2. Breach: only show that the product did not live up to its warranty

         3. Causation, damages, and defenses are treated just as they are under implied warranties.

            1. A disclaimer will be effective only in the unlikely event that it is consistent with the warranty

      2. Misrepresentation of Fact → 

         1. A seller will be liable for misrepresentations of facts concerning a product where:

            1. The statement was of a material fact concerning quality or uses of goods (mere puffery insufficient)

            2. The seller intended to induce reliance by the buyer in a particular transaction

         2. Justifiable reliance is required (in other words, the representation was a substantial factor in inducing the purchase).

         3. Actual Cause → Shown by reliance

         4. Proximate cause and damages are the same as for strict liability.

         5. Defenses

            1. Assumption of risk is not a defense if the plaintiff is entitled to rely on the representation. 

            2. Contributory negligence is the same as in strict liability unless the defendant committed intentional misrepresentation.

Harms to economic and dignitary interests

1. Defamation

2. Invasion of the Right to Privacy

3. Misrepresentation

4. Interference with Business Relations

5. Wrongful Institution of Legal Proceedings

Harms to economic and dignitary interests - Defamation

Elements

1. Elements

   1. Defamatory language

      1. Adversely affects reputation

      2. Not opinion

      3. Name calling is not enough

      4. Can include innuendo

      5. Only living persons (or companies) 

   2. Specifically identifying plaintiff 

      1. Such that a reasonable person would understand who you are talking about

         1. Groups

            1. All members in small group → each member can establish that it refers to them by alleging they were a group member

            2. Some members in a small group → reasonable person would view the statement as referring to P

            3. Large group → no one can prove the statement refers to them

   3. Publication: statement was communicated to a third person who understood it 

      1. Does not necessarily mean that the statement was in print

      2. Every repetition of the statement is a separate instance of publication

         1. Single publication rule: treats all copies as one

            1. magazines, newspapers, etc. 

   4. Falsity of the defamatory language

      1. True statements that cause severe emotional distress might give rise to IIED or invasion of right to privacy 

   5. Fault on the part of the defendant

      1. Public Official or Figure Must Prove Actual Malice

         1. Public Figure: achieving pervasive fame or notoriety or by voluntarily assuming a central role in a particular public controversy

         2. Actual Malice: Knowledge that the statement was false OR Reckless disregard as to whether it was false 

            1. Damages presumed, punitive damages allowed

      2. Private Persons Must Prove Negligence If Matter of Public Concern

         1. Public Concern: courts will look at the content, form, and context of the publication

         2. Actual Injury: not limited to economic damages

            1. may include damages for impairment to reputation and personal humiliation as long as the plaintiff presents evidence of such damages

   6. Damage to the plaintiff’s reputation

      1. Damages depend on the type of defamation

         1. Libel (defamation that is embodied in permanent form) (often a written, printed, radio, television)

            1. P typically does not need to prove special damages to recover and general damages are presumed

            2. Minority → presume general damages only if the statement is defamatory on its face (libel per se) and require proof of special damages if the state-ment requires reference to extrinsic facts to establish its defamatory nature (libel per quod)

         2. Slander (spoken defamation)

            1. The plaintiff must prove special damages, unless the defamation falls within one of the slander per se categories

               1. Adversely reflect on the plaintiff’s business or profession

               2. State that the plaintiff has committed a serious crime (this includes most common law crimes and is sometimes referred to as crimes involving “moral turpitude”)

               3. Impute that the plaintiff has engaged in serious sexual misconduct 

               4. State that the plaintiff has a loathsome disease

Harms to economic and dignitary interests - Defamation

Defenses

1. Consent

2. Truth

3. Privilege

   1. Absolute - Can never be lost

      1. Communications between spouses 

      2. Remarks made during judicial proceedings, by legislators during proceedings (even if not related to the proceedings), by executive officials, in “compelled” broadcasts

   2. Qualified - Can be lost through abuse

      1. Arises only when there is a public interest in encouraging candor

         1. Examples: Statements made 

            1. In references and recommendations

            2. In reports of public hearings or meetings

            3. To those who are to take official action (such as parole board)

            4. In defense of one’s actions, property, or reputation

      2. D bears the burden of proving that a privilege exists

      3. May be lost if the statement is not within the scope of the privilege or it is shown that the speaker acted with actual malice

4. Mitigating Factors

   1. Not a defense but can be considered to lessen damages amount

   2. Factors

      1. Absence of malice

      2. Issuing a retraction

      3. Provocation by P

Harms to economic and dignitary interests - Invasion of the Right to Privacy

1. Personal right and does not extend to members of a family, does not survive the death of the plaintiff, and is not assignable.

   1. Doesn’t apply to corporations

2. D’s conduct must have caused actually caused and proximally caused the invasion of P’s privacy interest

3. Types

   1. Appropriation of P’s picture or name

      1. P shows the unauthorized use of the P’s picture or name for D’s commercial advantage

   2. Intrusion on P’s affairs or seclusion

      1. Act of prying or intruding on someone in a way that would be highly offensive to a reasonable person

   3. Publication of facts placing the P in a false light

      1. Attributing to the P a view he does not hold or actions he did not take

         1. Must be something highly offensive to a reasonable person

      2. If the matter is of public interest, actual malice on the D’s part must be proved.

   4. Public disclosure of private facts about the P

      1. Disclosing private facts that would be highly offensive to a reasonable person of ordinary sensibilities

      2. If the matter is of public interest, actual malice on the Ds part must be proved.

4. Defenses

   1. Consent

   2. Public Interest

      1. Unless fault amounting to actual malice (knowledge of falsity or reckless disregard of truth or falsity) is established.

      2. For: False Light and Private Facts

5. Damages

   1. P need not prove special pecuniary damages 

      1. Emotional distress and mental anguish sufficient damages 

Harms to economic and dignitary interests - Misrepresentation

Intentional Misrepresentation (Fraud, Deceit)

1. Elements

   1. Misrepresentation of a material past or present fact

      1. No General Duty to Disclose UNLESS

         1. stands in a fiduciary relationship to the plaintiff; 

         2. is selling real property and knows the plaintiff is unaware of, and cannot reasonably discover, material information about the transaction; or

         3. has spoken and their utterance deceives the plaintiff

      2. Physical concealment of a material fact may also constitute a misrepresentation.

      3. Third Party

         1. If they can reasonable foresee that they would rely

   2. Scienter 

      1. when the D made the statement, they knew or believed it was false or that there was no basis for the statement

   3. Intent to induce the P to act or refrain from acting in reliance upon the misrepresentation

   4. Causation

      1. Actual reliance

   5. Justifiable reliance

      1. Reliance justifiable only on representations of fact & where P is under no obligation to investigate the fact

         1. Reliance on opinion: justifiable only if the defendant offering the opinion has a superior knowledge of the subject matter

      2. Third Party Reliance: D will be liable if they could reasonably foresee that the third party would so rely

   6. Damages

      1. P must suffer actual pecuniary loss

2. No Defenses

Negligent Misrepresentation

1. Elements

   1. Misrepresentation by the D in a business or professional capacity

   2. Breach of duty toward a particular P 

   3. Causation

   4. Justifiable reliance

      1. Liability will attach only if reliance by the particular P could be contemplated.

   5. Damages (Harm)

2. Generally, this action is confined to misrepresentations made in a commercial setting

Harms to economic and dignitary interests - Interference with Business Relations

1. Elements

   1. Existence of a valid contractual relationship between P and a third party or valid business expectancy of P

   2. D’s knowledge of the relationship or expectancy

   3. Intentional interference by D inducing a breach or termination of the relationship or expectancy

   4. Damages (Harm)

2. Privilege 

   1. D’s conduct may be privileged if it is a proper attempt to obtain business for itself or protect its interests

   2. More likely to be found if:

      1. interfered only with the P’s prospective business rather than with existing contracts; 

      2. used commercially acceptable means of persuasion rather than unlawful or threatening tactics; 

      3. is a competitor of the P seeking the same prospective customers; or 

      4. has a financial interest in or responsibility for the third party, or is responding to the third party’s request for business advice

Nuisance

1. Private Nuisance

   1. Substantial, unreasonable interference with another person’s use or enjoyment of property that the person actually possesses or to which he has a right of immediate possession

      1. Substantial interference → what would be offensive, inconvenient, or annoying to the average person in the community

      2. Unreasonable → severity of the injury inflicted on the property owner outweighs the utility of the defendant’s conduct

2. Public Nuisance

   1. Act that unreasonably interferes with the health, safety, or property rights of a community

3. Remedies

   1. Damages 

   2. Injunctive Relief: If the legal remedy of damages is unavailable or inadequate

   3. Abatement by Self-Help

      1. Private nuisance - Available after notice to D and their refusal to act. 

         1. Only necessary force may be used

      2. Public nuisance - only a public authority or a private party who has suffered some unique damage can seek an injunction or abatement

4. Defenses

   1. Legislative Authority

      1. Not an absolute defense but is persuasive.

   2. Coming to the Nuisance

      1. You can move next to a plant that is emitting toxic chemicals from the smokestacks and you can sue in nuisance

         1. Unless the plaintiff “came to the nuisance” for the sole purpose of bringing a harassing lawsuit.

      2. MS Distinction: By statute, an agricultural operation that has existed for a year or more cannot be held to be a public or private nuisance if the operation complies with all applicable state and federal permits.

   3. Contributory Negligence

      1. Generally is no defense to nuisance 

         1. UNLESS the plaintiff’s case rests on a negligence theory

   4. Conduct of Others

      1. No one actor is liable for all damage caused by concurrence of their acts and others.

Vicarious Liability

Liability based on the acts of another; one party commits a tortious act against a third party and another person will be liable to the third party

Special Relationships

1. Employer-Employee Relationship (respondeat superior)

2. Independent Contractor Situations

3. Partners and Joint Venturers

4. Automobile Owner for Driver

5. Bailor for Bailee

6. Tavernkeepers (bar owners)

7. Parent-Child

Vicarious Liability - Employer-Employee Relationship (respondeat superior)

Employer will be held vicariously liable for the torts committed by his employee if the tortious act occurs within the scope of the employment relationship

Within the scope

1. Detour: minor deviation from their employer’s business for their own purposes is still acting within the scope of employment

2. Frolic: If the deviation in time or geographic area is substantial, the employer is not liable

3. Intentional Torts: Not usually within scope

   1. Exceptions

      • Employee is furthering the business of the employer

      • Force is authorized in the employment

      • Friction is generated by the employment

Vicarious Liability - Independent Contractor Situations

Generally hiring party (the principal) will not be vicariously liable for the tortious acts of an independent contractor (the agent) when the hiring party does not control the manner and method in which the independent contractor performs the job

Exceptions

1. The independent contractor is engaged in inherently dangerous activities, e.g., excavating next to a public sidewalk, blasting; or

2. Public Policy Exception: where a duty is simply non delegable, such as the duty of a business to keep its premises safe for customers

Vicarious Liability - Partners and Joint Venturers

Liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture

Vicarious Liability - Automobile Owner for Driver

Not vicariously liable for the tortious conduct of another person driving their automobile

Exceptions in Some States (Not MS)

1. Family Car Doctrine: owner is liable for tortious conduct of immediate family or household members who are driving with the owner’s express or implied permission

2. Permissive Use: imposing liability on the owner for damage caused by anyone driving with the owner’s consent

3. Rental Cars excluded by federal statute

4. Agent: car owner will be liable if the driver is acting as the owner’s agent, for instance using the car to perform an errand for the owner

5. Liability for own negligence - Negligent Entrustment

May also be directly liable

Vicarious Liability - Bailor for Bailee

Generally not vicariously liable for the tortious conduct of their bailee

• Bailor may be liable for their own negligence in entrusting the bailed object.

Vicarious Liability - Tavernkeepers (bar owners)

Common Law: No liability was imposed on vendors of intoxicating beverages for injuries resulting from the patron’s intoxication

Modern Law: Can be liable for torts committed by intoxicated guests if the state has a Dramshop Act, which imposes such liability.

May also be directly liable

Vicarious Liability - Parent-Child

A parent is NOT vicariously liable for the tortious conduct of the child under common law

• Most states will make a parent liable for the intentional torts of minor children by statute.

Agents: Courts may impose vicarious liability if the child committed a tort while acting as the agent for the parents.

Parent may be liable for their own negligence.

Jointly and Severally Liability

When two or more defendants act negligently and the acts combine to proximately cause an indivisible injury, each defendant will be jointly and severally liable, which means each defendant will be liable to the plaintiff for the entire judgment.

1. If the injury is divisible, and you can allocate between the defendants, each defendant is liable only for the identifiable portion.

2. If the defendants are working in concert (acting together in a common scheme or action), each defendant will be jointly and severally liable even if the injury is divisible.

3. Statutory Limitation: Many states have abolished joint liability in cases based on fault either for (1) those defendants judged to be less at fault than the plaintiff, or (2) all defendants regarding noneconomic damages

   • Liability will be proportional to D’s fault.

Satisfaction and Release

1. Satisfaction: payment of damages in full

2. Release: party is released from liability and discharged of responsibility to pay damages

Doctrines that determine how joint tortfeasors allocate between themselves the damages they must pay to a successful plaintiff

1. Contribution

   1. Allows a D who pays more than his fair share of damages under joint and several liability to have a claim against the other liable parties for the excess.

   2. Methods of Apportionment

      • Comparative Contribution (Majority)

        • Contribution is imposed in proportion to the relative fault of the various defendants (fault apportionment)

      • Equal Shares (Minority)

        • Equal shares regardless of degrees of fault

   3. The contribution defendant must be originally liable to the plaintiff.

2. Indemnity

   1. Involves shifting the entire loss between or among the defendants

      • In vicarious liability and under the strict products liability for the non-manufacturer

   2. Applies when the nonpaying D is much more responsible than the D who had to pay the P, or when the paying D was only vicariously liable because of his relationship with the nonpaying D.

Loss of consortium and tortious interferences with family relationships

Between Spouses

• Either spouse may bring an action for indirect interference with consortium and services caused by the defendant’s intentional or negligent tortious conduct against the other spouse

Parent-Child

• A parent may maintain an action for loss of a child’s services and consortium as a result of the defendant’s tortious conduct, whether intentional or negligent.

  • A child, however, has no action in most states against one who tortiously injures their parent

Nature of Action

• Any defense that would reduce or bar recovery by the injured family member also reduces or bars recovery for interference with the family relationship

Survival And Wrongful Death

Survival of Tort Actions

• Survival acts allow one’s cause of action to survive the death of one or more of the parties

  • Apply to actions involving torts to property and torts resulting in personal injury.

Wrongful Death

• Grants recovery for pecuniary injury resulting to the spouse and next of kin.

  • Decedent’s contributory negligence reduces the wrongful death recovery in comparative negligence states

Tort Immunities

Intra-Family Tort Immunities

1. Traditional View → one member of a family unit could not sue another in tort for personal injury

2. Majority States → abolished spousal immunity

3. Slight Majority → abolished parent-child immunity (but generally do not allow children to sue merely for negligent supervision)

   1. Those that retain parent-child immunity do not apply it in

      1. cases alleging intentional tortious conduct, or 

      2. automobile accident cases to the extent of insurance coverage.

Governmental Tort Immunity (Where it survives, immunity attaches to governmental, not proprietary, functions)

1. Federal Government

   1. Waived immunity for tortious acts

   2. Immunity will still attach for (1) assault, (2) battery, (3) false imprisonment, (4) false arrest, (5) malicious prosecution, (6) abuse of process, (7) libel and slander, (8) misrepresentation and deceit, and (9) interference with contract rights. 

   3. Not waived for 

      1. acts that are characterized as “discretionary” (those involving considerations of political or economic policy, usually made by senior officials) AND 

      2. acts termed “ministerial” (those performed at the operational level of government) are not immune from liability.

2. State Government 

   1. Immunity is retained for discretionary acts and for legislative and judicial decisionmaking

3. Local Government

   1. Where municipal immunity has been abolished

      1. “public duty” rule provides that a duty owed to the public at large is not owed to any particular citizen absent a special relationship between the governmental body and the citizen

   2. Where municipal immunity still exists

      1. contrast “governmental” functions (functions that could only be performed adequately by the government) and “propri-etary” functions (functions that might as well have been provided by a private corporation)

4. Public Officials

   1. Public officials carrying out official duties are immune from tort liability for discretionary acts done without malice or improper purpose. 

      1. Liability attaches, however, for ministerial acts.

Negligence

1. Duty

2. Breach

3. Causation

4. Damages

For D to cutoff liability, start with the first element. The best answer will likely be the farthest from damages.

For P, the closer to damages the strongest the answer will be.

Negligence - Duty

What standard of duty applies?

1. Baseline: Care exercised by a reasonably prudent person in the same or similar circumstances to avoid or minimize risk of harm to others

   1. Reasonably prudent person: D’s conduct is measured against a person with average mental ability and the same knowledge as average members of the community

      1. Exception for physical characteristics where relevant

         1. Example: blind person

      2. Exception for superior skill and knowledge are relevant

   2. Amount of Care Exercised: Depends on how likely it is the person’s action will result in injury to someone AND how much effort or money must be devoted to preventing the bad occurrence 

2. No Legal Duty to Act

   1. No duty to affirmatively act for the benefit of others, but if one chooses to act, they must act as a reasonably prudent person

   2. Exception: 

      1. Special relationships between parties (ex: parent-child)

      2. One has a duty to assist someone they have negligently or innocently placed in peril

      3. Prevent harm from third persons

         1. Unless D has the ability and authority to control that threatening person, control their action, and knows or should know that person is likely to commit acts that would require this control → may have duty to act

3. Special categories or statutory duties that apply (on another flashcard)

Who is the duty owed too?

1. Baseline: Foreseeable P

   1. Rescuer - Foreseeable P

      1. Firefighter's Rule: A public safety officer (generally a police officer or firefighter) cannot recover for injuries suffered while in the line of duty. 

   2. Zone of Danger: What if D breaches a duty to one P1 and also causes injury to another P2?

      1. P2 can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances.

Negligence - Duty

Special categories or statutory duties that apply

Professionals

1. Someone with a special skill or knowledge is not only deemed to have the skill or knowledge of a member of that profession, but also required to use that superior knowledge he possesses.

   1. What an average member of the profession in good standing

   2. Doctors

      1. National rather than localized standard

      2. Duty to disclose the risks of treatment.

Children

1. Children are held to the standard of a child of like age, experience, and intelligence.

2. Children less than 5 years old lack capacity to be negligent

3. Children engaging in adult activity (for example, driving a car) will be held to the adult standard of care

Common Carriers and Innkeepers

1. People who are responsible for the care of others, whether passengers or hotel guests

   1. Held to a high standard and will be liable for even slight negligence

2. Contrast this to passengers in a private car, who are only owed the ordinary duty of care.

Emergencies

1. D must act as a reasonably prudent person would under same emergency conditions

   1. EXCEPT: D caused the emergency, then doesn’t apply

Owners and Occupiers of Land (Rules to conditions on the land)

1. Undiscovered (Unknown) Trespasser: an unknown individual on the owner’s land without permission

   1. No Duty

2. Discovered or Anticipated (Known) Trespasser

   1. Duty to warn of or make safe any conditions that are: artificial, high dangerous, concealed, known in advance.

3. Licensees: people who enter onto the owner’s land, with the owner’s permission, for their own purpose or benefit

   1. Examples: social guests

      • Although firefighters and police officers are typically licensees because they often enter property with implied consent, on public policy grounds, they are owed no duty of care regarding risks that are inherent in their job

   2. Duty to warn of or make safe hazardous conditions that are: concealed or known in advance

   3. No duty to inspect

4. Invitees: people who enter the owner’s land, with permission, for the landowner’s business purposes or who enter land held open to the public

   1. Duty to warn of or make safe hazardous conditions that are: concealed OR known in advance OR could have been discovered by a reasonable inspection

   2. Lose status if they exceed the scope of the invitation. They then become a trespasser.

5. Trespassing Children (Attractive Nuisance Doctrine)

   1. To prove that D’s actions were unreasonable, the plaintiff must show:

      1. Dangerous condition that owner knows or should be aware of;

      2. Owner knows or should know that children might trespass;

      3. Likely to cause injury; 

      4. Expense to fix situation is slight comparatively

6. Recreational Land

   1. A landowner who permits the general public to use their land for recreational purposes without charging a fee is generally not liable for injuries suffered by a recreational user

      1. Unless the landowner willfully or maliciously failed to guard against or warn of a dangerous condition or activity

7. People off premises

   1. No duty to protect someone off premises from natural conditions on the premises

      1. For artificial conditions or structure abutting adjacent land, there is duty

8.  Lessor and Lessee of Realty

   1. The Lessee (renter) general duty to maintain the premises

   2. Lessor has duty to warn of existing defects which they are aware or have reason to know, and which the know the lessee is not likely to discover on a reasonable expectation

      1. If they covenant to repair, then liable for unreasonably dangerous conditions on premises

      2. Volunteers to repair but does so negligently, they are liable

9. Vendors of Realy (someone who sells property)

   1. Must disclose to buyer or vendee concealed unreasonably dangerous conditions of which the vendor knows or has reason to know and which the vendor knows the vendee is not likely to discover on reasonable inspection

Negligence - Breach

Did D meet, exceed, or fail the duty owed?

1. Res Ipsa Loquitur (RIL): the thing speaks for itself

   1. It raises a permissible inference that there has been a breach of duty based on circumstantial evidence.

   2. 3 Requirements

      1. The accident causing the injury is of a type that would not normally occur unless someone was negligent;

      2. The negligence must be attributable to the defendant; and

         1. Usually proved by showing that the instrumentality that caused the injury was in the exclusive control of D.

            • Actual Possession of the instrumentality is not necessary

      3. The plaintiff must be free from fault

         1. P must show that the injury was not attributable to her

   3. Showing of RIl creates an inference of negligence, and does not shift the burden of production to D

   4. Establishes both the duty and breach 

      1. Once established, no direct verdict may be given for D.

2. Negligence Per Se

   1. Established by violation of a statute if P shows:

      1. She is in the class intended to be protected by the statute; and

      2. Statute was designed to prevent the type of harm that she suffered

   2. Showing of NPS creates a presumption of negligence, and shifts the burden of production.

   3. Establishes both the duty and breach 

      1. Once established, no direct verdict may be given for D.

3. Custom or Usage

   1. When the general standard of care applies, evidence of the custom or usage of others may be used to establish how a reasonable person should have behaved under the circumstance. 

      1. Evidence is not conclusive on the question of whether the D breached

         1. What if the entire industry is unreasonable? 

Negligence - Causation

Must show both

Actual Cause (Factual Cause of the Injury)

1. 3 Tests 

   1. “But for” Test

      1. An act or omission is the actual cause of an injury if the injury would not have occurred but for the act or omission of the defendant.

         1. If a negligent act is totally unrelated to an injury - if we can’t trace a line from the negligent act to the injury - the negligent act isn’t a but for cause.

   2. Substantial Factor Test 

      1. Several causes and any one alone would have been sufficient

   3. Unascertainable Causes Approach 

      1. Several acts, but only one causes P’s injury

         1. Burden Shifts to D: If they want to get out of liability, they have to prove their act did not cause P’s injury.

      2. Some Courts → Enterprise Liability 

         1. Industry Groups are required to pay a share of judgment proportional to their share of the market if they are sued and lose.

Proximate Cause (Legal Cause of the Injury)

1. Test: Was the harm within the risk created by D’s conduct? Foreseeable?

   1. D’s action is a Direct Cause of P’s injury

      1. No Intervening Force

   2. D’s conduct was an Indirect Cause

      1. Intervening Force: An outside force that comes into motion after the D’s negligent act and combines with it to cause the P’s injury

         1. Neither the P’s conduct nor the D’s conduct can be characterized as an intervening force

         2. If an intervening force is foreseeable it will not cut off the D’s liability for his negligent conduct.

      2. A foreseeable result is caused by a foreseeable intervening force.

         1. A tortfeasor is liable for subsequent simple medical malpractice related to the injury they caused.

            1. Applies to negligence by rescuers.

         2. Original tortfeasor is liable for later injuries resulting from the original injury weakening the victim.

         3. Only if D’s negligence increased the risk from these forces

            1. Negligent acts of third persons

            2. Crimes & intentional torts of third persons

            3. Acts of god

      3. An unforeseeable result is caused by an unforeseeable intervening force.

         1. Superseding Cause: Breaks the chain of D’s liability. 

      4. Unforeseeable extent or severity of harm.

         1. The fact that the extent or severity of the harm was not foreseeable does not relieve D of liability.

            1. Eggshell Plaintiff: A tortfeasor takes their victim as they find them.

Negligence - Damages

Remember EggShell P

Available to recover for:

1. Personal Injury

   1. Right to recover for the damages they incurred, whether in the past, present, or even future damages 

      1. Includes: Economic Damages, Pain & Suffering, Emotional Distress (see below), Future Lost Earnings (Adjusted to their present value)

         • MS: In medical malpractice actions, the award for noneconomic damages (for example, pain and suffering) cannot exceed $500,000; in all other civil actions the award cannot exceed $1 million.

2. Harm to Property

   1. Right to recover the Cost of Repair OR it’s Fair Market Value just before it was destroyed

   2. Emotional distress damages generally cannot be recovered for negligent harm to property.

3. Economic Damages

   1. Only if there is personal injury or harm to property

      1. P cannot recover if their only loss is economic.

Limitations

1. Victim can’t recover Punitive Damages.

   1. P may recover punitive damages if defendant’s conduct is “wanton and willful,” reckless, or malicious

   2. MS: Punitive damages are capped on a sliding scale tied to the defendant’s net worth.

2. P is not allowed to recover interest from the date of damage.

   1. Interest can accrue if money is awarded at trial from the time it is awarded until it is paid.

3. Neither P nor D can recover attorney’s fees even if they win the case.

   1. Unless a statute provides otherwise.

4. P must have taken steps to mitigate damages. 

   1. If they don’t, then damages will be reduced.

5. Collateral Source Rule: Damages aren’t mitigated in favor of D just because the P receives money for their injury from another source

   1. Such as a gift from a relative to keep the victim housed and fed while they recover, or sick pay from an employer, or the like.

6. More than one person caused the injury

   1. If identifiable who caused what injury, each is liable only for the injury they caused. 

   2. If a single indivisible injury caused by multiple people, joint and several liability is imposed, each is liable for the entirety of the injury.

      1. When there is joint and several liability, if one tortfeasor has to pay more than their fair share (Comparative Fault Jurisdiction or Equal Shares) of a loss, in most states, they can make a claim against the other tortfeasor for contribution.

Different Negligence Theories

1. Negligent Hiring or Supervision

   1. Employers conduct matters here

2. Negligent entrustment

3. Negligent infliction of emotional distress (NIED)

   1. The plaintiff usually must satisfy two requirements to prevail:

      1. The plaintiff must be within the “zone of danger” 

      2. The plaintiff must suffer physical symptoms from the distress (Majority)

         1. Minority → Dropped requirement

   2. Bystander’s Outside of “Zone of Danger”

      1. Can recover damages for their own distress as long as:

         1. The plaintiff and the person injured by the defendant are closely related

         2. The plaintiff was present at the scene of the injury and personally observed or perceived the event

         3. Majority → Dropped physical symptoms requirement

   3. Special Relationship Cases

      1. D’s negligence has great potential to cause P emotional distress

         1. Example: doctor-patient

      2. Majority → Dropped physical symptoms requirement

Negligence - Defenses

Prima Facie Case

1. Failure to Show the Full Prima Facie Case 

   1. Duty, Breach, Causation, Damages

      1. If any elements are missing, move for directed verdict in a pretrial motion.

2. Alleged Full Prima Facie Case

   1. Attempt to negate the prima facie elements

Assumption of the risk

1. P may be denied recovery if he knew of the risk of damage AND voluntarily proceeded in the face of that risk. 

   1. Knowledge may be 

      1. Express

         1. P assumes risk by express agreement

      2. Implied 

         1. Risk is one that an average person clearly appreciates is present

   2. Not Voluntarily

      1. Proceeding where there is no available alternative

      2. Fraud

      3. Force

      4. Emergency

   3. Members of a class protected by statute will not be deemed to have assumed any risk

Contributory negligence (Minority Rule)

1. Negligence on the part of the P that contributes to her injuries

   1. Establish all the elements of negligence

      1. Standard of Care: Reasonable person in the same or similar circumstances to avoid or minimize risk of harm to self

2. Common Law: completely bars a plaintiff’s right to recovery

   1. Exception (Last Clear Chance): Permits a P to recover despite their contributory negligence if D had the last clear chance to avoid the injury and failed to do so

      1. Helpless Peril (D liable if knew or should have) vs. Inattentive Peril (D liable if actually knew)

Comparative negligence (Majority Rule)

The trier of fact, whether judge or jury, weighs the plaintiff’s negligence and reduces damages accordingly.

2. Partial comparative negligence: P will still not recover if her negligence is equal to or greater than the D’s negligence.

   1. If it’s 50/50, whether P can recover depends on the state.

   2. Multiple Ds: Ps negligence will be compared with the total negligence of all Ds combined

3. Pure comparative negligence: Allows the P to recover no matter how negligent she was

   • Assume pure comparative negligence unless facts tell you otherwise

   • MS employs a pure comparative negligence system.