Torts

Assault

requires a (1) volitional act intending to cause (2) reasonable apprehension of imminent harmful or offensive contact or (3) actual harmful or offensive contact (4) and actually causes reasonable apprehension of imminent harmful or offensive contact in another

Battery

requires (1) a volition act intending to (2) cause reasonable apprehension of harmful or offensive contact or (3) actual harmful or offensive contact and (4) actually causes harmful or offensive contact of another

False Imprisonment + Defenses (3)

requires an (1) intentional confinement of another (2) to a bounded area against their will and (3) the person knows of or is harmed by the confinement

Defenses:

Shopkeeper's Privilege- A shopkeeper may detain a shoplifter if: (1) they have a reasonable belief a theft has occurred, (2) the detainment is for a reasonable time, and (3) reasonable manner to ascertain facts

Crime Prevention - Private persons may arrest someone for a felony if they have reasonable ground for believing the felony has been committed. The felony need not have occurred in their presence.

Private persons may arrest someone for a misdemeanor if (1) they have a reasonable belief that a crime involving a breach of the peace occurred (2) in their presence.

Vicarious liability

Employees: Employers are vicariously liable for employees' negligence done within the scope of their employment

*Frolic - minor deviation, still liable, Detour - major deviation, not liable

Independent Contractors: A principal is vicariously liable for the negligence of independent contractors only when (1) the contractor is engaged in an inherently dangerous activity or (2) the duty is non-delegable

Trespass to Chattels

requires (1) an intermeddling or dispossession of (2) another's personal property (3) causing harm to the personal property

Conversion

requires (1) a substantial interference with (2) another's right of possession (3) that is serious enough to warrant the defendant pay the full value of the chattel

Intentional Infliction of Emotional Distress (IIED)

requires (1) extreme or outrageous conduct causing (2) severe emotional distress

Conduct is extreme and outrageous if a reasonable person would find it highly offensive.

Negligent Infliction of Emotional Distress (NIED)

requires (1) plaintiff be within the zone of danger from the negligence and (2) suffer physical symptoms from the emotional distress.

There is no zone of danger requirement if (1) plaintiff is closely related to the injured person and perceived the injury, (2) a duty arises from a special relationship between the plaintiff and defendant so that negligence has potential to cause emotional distress and (3) a mishandling of a relative's corpse or erroneously stating that a relative a died

Malicious Prosecution

requires (1) the initiation of a civil, criminal or administrative proceeding without probable cause (2) for a wrongful purpose and (3) the favorable termination of the proceedings on the merits in favor of plaintiff

Abuse of Process

requires (1) using a legitimate civil process (2) for a wrongful purpose and (3) an act or threat against the plaintiff to accomplish the wrongful purpose

Negligence

Negligence requires: duty, breach, causation, and harm

Duty - requires the exercise of care a reasonable person in the same circumstance would have exercised in order to avoid foreseeable harm to others. Under Cardozo, plaintiff must be in the zone of danger. Under Andrews, every person who is a foreseeable plaintiff.

Breach - requires there be a duty and a failure to fulfill the duty

Causation requires actual and proximate causation.

Actual causation requires a "but for" analysis.

Proximate causation requires foreseeability.

Harm

Negligence Per Se

requires (1) a violation of statute or ordinance (2) plaintiff is a member of the class of persons intended to be protected and (3) the claimed harm is the type intended to be protected against

Res Ipsa Loquitur

requires the inference of negligence if (1) defendant had control of the instrumentality of harm and (2) the harm would not have occurred in the absence of negligence

Duty, Vehicle

A driver has a duty to drive their vehicle reasonably in order to avoid injuring other drivers, pedestrians, or property

Duty, Possessors of Land = TALIA

Trespassers: duty to adequately warn known trespassers of non-obvious artificial conditions, duty to not act willfully or wantonly to unknown trespassers

Artificial Conditions: duty to (1) protect from unreasonably dangerous artificial conditions and (2) take precautions to protect persons passing by

Licensees: To those who enter premises for their own purpose, duty to: (1) repair, warn of and make safe (2) known dangers, conditions, and risks likely to cause injury (3) licensees would not have reason to know of

Invitees: To those who enter premises for the business purpose of the possessor, duty to (1) inspect and make safe (2) known dangers, conditions, and risks likely to cause injury (3) invitees would not have reason to know of

Attractive Nuisance: duty to (1) warn of and make safe (2) known dangers, conditions and risks likely to cause injury (3) where young persons frequent the vicinity and (4) are unlikely or unable to appreciate the risk of and (5) the expense of remedy is outweighed by the risk

Duty, Rescuee

Rescuee is liable to a rescuer who is injured in the course of the rescue caused by the rescuee's own negligence

Duty, Landlord-Tenant

duty to (1) maintain common areas, (2) warn of and make safe known dangers, conditions and risks, (3) repair defects

Duty, Professionals

duty to possess and exercise the knowledge and skill of a member of the profession in good standing

Duty, Custom

custom/usage in industry or trade may be evidence of a duty or lack of duty

Negligence Defenses, ACCE

An assumption of risk requires that the plaintiff knew of the risk and voluntarily assumes it.

Contributory negligence of a plaintiff is a complete bar to recovery. Plaintiff may invoke the last clear chance doctrine to avoid a finding of contributory negligence. The last clear chance doctrine holds the actor who had the last clear opportunity to avoid danger, but failed to, liable.

Comparative negligence: Pure comparative fault reduces plaintiff's recovery by the percentage attributable to plaintiff's fault. Non-pure comparative fault bars recovery if plaintiff's fault exceeds 50%.

Emergency: So long as defendant did not create the emergency, the duty is to act as a reasonable person under the same emergency would.

Firefighter's Rule

Professional rescuers are barred from recovering under negligence any harm that resulted from the special dangers of their jobs. The rule does not bar professional rescuers from recovering for harm resulting from a land possessor's failure to warn them about concealed dangers known to the land possessor.

Strict Liability, Wild Animals

requires: (1) defendant owned a wild animal (2) that caused harm to plaintiff (3) harm is characteristic of its wildness

Strict Liability, Domestic Animals

requires defendant knew or has reason to know of the animal's vicious tendencies

Strict Liability, Abnormally Dangerous Activities

requires (1) the carrying on of an abnormally dangerous activity, (2) which causes harm, (3) the risk of which makes the activity abnormally dangerous

Abnormally dangerous requires: (1) the high degree of risk of harm, (2) the gravity of the harm, and (3) the inability to eliminate the risk by using reasonable care

Causation: actual and proximate

Products Liability, Strict Liability

Strict Products liability: requires (1) D be in the business of selling or distributing products (2) who sells or distributes a defective product that remains unchanged after it left D's control and (3) the defect actually and proximately causes harm to a foreseeable person and (4) damages

Seller/Distributor

Defect

There are three types of defects: manufacturing, design, and failure to warn.

Manufacturing defects is one where the product departs from its intended design

Design defects are assessed by either: (1) risk-utility theory or (2) feasible alternative design

Risk-utility theory requires that the design be inherently dangerous and its harm outweighs the product's utility

Feasible alternative design requires there have been a safer, economical alternative defendant could have used.

Failure to warn defects require that defendant: (1) know or should know (2) that the product is likely to be dangerous for its use (3) has no reasonable belief a user will realize the danger and (4) fails to inform users of the danger.

Damages must not be purely economic.

Products Liability, Negligence

Negligence requires: duty, breach, causation and damages

Duty

Manufacturers owe a duty to purchasers and foreseeable plaintiffs if: (1) the product is reasonably certain to place users in probable danger and (2) likely to be used by others without further inspections or tests.

Retailers are generally not liable in a products liability action based on negligence unless (1) they actually become aware of a defect and (2) still sell the product

Breach requires there be a duty and a failure to fulfill the duty

Causation must be actual and proximate

Damages must not be purely economic

Products Liability - Warranties

Express warranties requires (1) express affirmation of fact concerning the goods, (2) relied on by buyer and (3) breach of the warranty causes harm to a foreseeable person.

Implied Warranties:

Merchantability requires (1) goods are of average quality, (2) fit for ordinary purpose (3) conform to promises on the label, and (4) a breach of the warranty causes harm to a foreseeable person.

Fitness for a particular purpose requires: (1) the seller knows of buyer’s special need, (2) recommends product with that knowledge and (3) a breach of the warranty causes harm to a foreseeable person.

Damages for personal, property, and economic loss.

Nuisance

There are two types of nuisance: private and public

Private nuisance requires: (1) a substantial and unreasonable interference with (2) plaintiff's use and enjoyment of his land and (3) by intention, negligent, or abnormally dangerous conduct

Public nuisance requires: (1) an unreasonable interference with (2) a common public interest

Trespass

requires (1) entry onto or remaining upon land of another (2) without consent

Privacy Torts

There are four types of privacy torts: intrusion upon seclusion, public disclosure of public facts, false light, and commercial appropriation

Intrusion upon seclusion requires: (1) an unreasonable and serious interference with (2) another's zone of privacy (3) that would be offensive to a reasonable person

Public Disclosure of Private Facts requires: (1) public disclosure (2) of private facts (3) that would be offensive and objectionable to the reasonable person (4) that is not of legitimate public concern.

False Light requires: (1) publication of another's private matters (2) that places the person in a false light to the public (3) that would be highly offensive to a reasonable person *If a public figure, (4) was false and (5) was made with malice

Commercial Appropriation requires: (1) an unauthorized appropriation or use of (2) another's identity (3) for commercial purposes

Defamation, Libel/Slander

Defamation requires: (1) defamatory language by defendant (2) of or concerning the plaintiff (3) publication to a third person and (4) damages to the plaintiff's reputation. If a public figure, (5) was false and (6) made with malice

(1) Defamatory language is language that tends to adversely impact one's reputation. The statement must either be a statement of fact or an opinion based on facts that would be defamatory if expressly stated

(2) A statement concerns the Plaintiff if a reasonable person seeing or hearing the language would identify Plaintiff.

(3) Publishing of a statement to a third person means that a third person either read or heard the statement. Libel is when a defamatory statement is published permanently in writing or broadcasted. Slander is when a defamatory statement is spoken.

(4) General damages are presumed for libel. There is no recovery for slander absent proof of special damages unless it is slander per se, which are accusations of: (1) crime (2) loathsome disease; (3) disparagement of business; (4) unchastity

Defenses to Defamation

Truth is a complete defense to defamation.

Absolute privilege includes statements made in: (1) proper discharge of an official duty or (2) the initiation of any proceeding authorized by law.

Qualified privilege includes statements: (1) made without malice, (2) reasonably necessary to protect defendants own legitimate interest, or (3) of interest to a third party

Misrepresentation

Misrepresentations require: (1) false statements (2) made intentionally, negligently, or innocently (3) with the intent to induce a party to rely on the statement and (4) the party actually relies upon the statement to their detriment

Fraudulent Nondisclosure

requires: (1) a nondisclosure of material facts (2) while under a duty to disclose and (3) the complaining party reasonably relied upon the nondisclosure

Legal Remedies

Legal damages include: compensatory or punitive damages

Compensatory damages require (1) actual causation, (2) foreseeability, (3) certainty, and (4) unavoidability. Unavoidability requires that plaintiff take reasonable steps to mitigate damages.

Punitive damages are awarded to punish the defendant for egregious acts.

Restitutionary Remedies, Legal

Damages to prevent unjust enrichment retained by D

Replevin is required where: (1) plaintiff have a legal right to possess the personal property and (2) defendant must be wrongfully withholding the property

Ejectment is required where: (1) plaintiff holds legal title to the property and (2) the defendant is in possession of the property without legal right or permission.

Restitutionary Remedies, Equitable

Constructive trust: Courts may establish a constructive trust upon a showing of: (1) specific identifiable property or interest in property subject to the claim (2) plaintiff has a legitimate claim to that property that (3) defendant wrongfully acquired or be wrongfully detaining from the plaintiff

Equitable lien: Courts may establish an equitable lien upon a showing of: (1) a debt owed by one party to another that (2) is related to specific identifiable property (3) an intent that the property serve as security for the debt and (3) allowing the party to retain the benefit without compensating the other would be unjust.

Tracing: Plaintiff may follow the property to whatever form it takes

Equitable Remedies TRO/PI

TRO/PI requires: 1) a threat of irreparable harm, (2) likelihood of success on the merits (3) a balancing of the hardships in plaintiff's favor and 4) the harm is imminent

Permanent Injunction awarded after P is successful on the merits

Defenses to Equitable Remedies, ULU

Unclean hands requires: (1) The plaintiff's conduct was not in good faith or was otherwise inequitable and (2) the conduct relates to the subject matter of the plaintiff's claims being asserted.

Laches requires: (1) an undue delay by plaintiff in bringing the claim, (2) causing prejudice to the defendant, negatively impacting the defendant's ability to defend themselves or their position.

Undue hardship