1L Torts FInal

False imprisonment

P must prove:

(1)  D intended to confine P

(2)  D confined the plaintiff (complete restraint, physical barriers, no reasonable means of escape)

(3)  P was harmed (injury or awareness of confinement)

Assault

P must prove:

(1)  D intended to attempt or threaten harmful or offensive contact

(2)  D’s attempted or threatened contact was imminent (words and conditional threats are insufficient)

(3)  D’s attempted or threatened contact caused reasonable apprehension in P

Battery

(1) D intended to make/cause contact with P

(2) D made contact with P

(3) The contact was harmful or offensive

Trespass to chattels

P must prove:

(1)  Intent to affect the chattel

(2)  Interference with P’s possessory interest in the chattel

(3)  Resulting in damage, injury, or economic loss

Trespass to land

(1)  D intentionally and volitionally entered land

(2)  P had a possessory interest in the land

Affirmative duty to act (rescue) in California

►   Generally, there is no duty to protect or rescue others from peril, but there are exceptions:

o   Special relationship between P and D

o   D created the risk

o   D voluntarily assumed care of P

Landholder duty of care: CA

Reasonable person standard

Landholder duty of care: Common Law

Trespassers: Generally, there is no duty owed to unknown, unanticipated trespassers.

Licensee: A licensee is permitted to enter or remain on land as a social guest. A landholder owes licensees a duty to warn of hidden, unknown dangers that pose a risk of serious injury.

Invitee: An invitee is privileged to enter or remain on land as a business guest.

Breach: violation of statute

 The failure of a person to exercise due care is presumed if:

(1) He violated a statute;

(2) The violation proximately caused death or injury to person or property;

(3) The death or injury resulted from an occurrence the statute was designed to prevent; and

(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose the statute was designed to protect.

Actual cause

But for D’s negligent conduct, the injury would not have occurred

·       The negligence must be a substantial (non-trivial) factor

Proximate cause

The plaintiff must prove the resulting type of injury of damage was reasonably foreseeable

Res ipsa loquitur

(1) Not feasible to prove what the defendant did

(2) Circumstances suggest negligence by someone

(3) Injurious occurrence was under D’s control

Negligent infliction of emotional distress in California

The plaintiff must prove that defendant’s negligence caused the plaintiff severe emotional distress.

Negligent misrepresentation, including special rule for professionals, in California, see Bily v. Arthur Young & Co., 3 Cal. 4th 370 (1992)

To prove negligent misrepresentation, the plaintiff must show that the defendant:

(1)  Made a material assertion of fact that was false

(2)  The defendant failed to exercise reasonable care or competence in obtaining or communicating the information;

(3)  The plaintiff actually and justifiably relied on the representation

(4)  And suffered pecuniary loss as a result

Special rule: An independent auditor does not owe a general duty of care to third party investors who are not in privity of contract with the auditor. However, third parties can bring a claim of negligent misrepresentation if the third party is an intended beneficiary of the audit report and the supplier of the information manifests intent to supply the information for the transaction

In terms of medical malpractice, when is expert testimony required to establish the standard of care?

When it is necessary to determine whether the level of skill, knowledge, and care a person used rises to the level of breach based on qualified expert testimony

Comparative fault in California

Comparative fault in California

If jury decides P’s negligence combined with D’s negligence in causing P’s harm, jury must decide the percentage of responsibility and attribute it to each of them.

o   First, decide total amount of P’s damages

o   Then, decide P’s percentage of responsibility,

o   Finally, reduce P’s damages by the percentage of P’s responsibility

California has pure comparative negligence, so there is no limit on percentage of the plaintiff’s fault.

Seatbelt defense in California, see California Vehicle Code § 27315(a), (d)(1), (i)

(d)  A person shall not operate a motor vehicle on a highway unless . . .restrained by a safety belt.

(e) A person 16 or older shall not be a passenger in a motor vehicle unless that person is properly restrained by a safety belt.

(f) An owner of a motor vehicle . . .shall maintain safety belts in good working order for the ose of the occupants of the vehicle.

(i) In a civil action, a violation of subsection (d), (e), or (f) does not establish negligence as a matter of law or negligence per se for comparative fault purposes, but negligence may be proven as a fact without regard to the violation.

Apportionment in California (Proposition 51)

·  In any action for personal injury, property damage, or wrongful death, based on the principles of comparative fault, the liability of each defendant, for non-economic damages, shall be several only and shall not be joint.

Assumption of risk in California and Virginia

In California, assumption of risk has been almost completely replaced by the defense of comparative fault

*Unsure about Virginia. Will update soon

Failure to mitigate damages

No recovery for damages due to P’s failure to avoid aggravation of injury

Vicarious liability

Non-delegable duty

Strict liability: animals

Wild: Strict liability for harms ensuing from dangerousness

Domesticated: Strict liability for known, dangerous propensity. Strict liability for vicious watchdogs.

Livestock: Strict liability if livestock trespasses onto another’s land. There is an exception if livestock is being herded on a public highway and stray onto adjoining land

Design defect

Plaintiff must prove:

(1) dangerousness

-consumer expectations test

-risk-utility formula

and

(2) fault

D could have used a safer design

Manufacturing defect

(1)  Manufacturer departed from intended design of he product

(2)  The departure made product dangerous beyond ordinary consumer expectations

(3)  There was no substantial change in condition since the manufacturer sold it

Inadequate warning

(1)  Manufacturer knew or should have known product was unsafe

(2)  Manufacturer gave inadequate warning or instructions

Private and public nuisance

Plaintiff must prove:

(1)  Defendant’s substantial

(2)  And unreasonable

(3)  Interference with private or public interest

Fraudulent misrepresentation

The plaintiff must prove that the defendant:

(1)   Made a material assertion of fact

(2)    Which was false

(3)   D knew it was false or acted with reckless disregard for its truth or falsity

(4)   D intended to cause the plaintiff to rely on the representation

(5)   The plaintiff actually and justifiably relied on the misrepresentation

(6)  And suffered pecuniary loss as a result

Defamation elements

The plaintiff must prove that the defendant:

(1) published (communicated to at least one third person)

(2) a defamatory statement (tends to harm reputation or tends to deter third persons from associating with P)

(3) about the plaintiff

(4) which harmed the plaintiff’s reputation

(harm will be presumed for libel and slander per se)

Qualified and absolute immunities (Defamation)

Qualified privilege

o   To protect one’s own interest, to protect the interest of a third person, or to protect mutual interest. This privilege can be lost if abused (malice, excessive, irrelevant)

Absolute immunity

o   Judicial - related to court proceedings (parties and attorneys)

o   Legislative – during floor debate

o   High level executives

To establish Invasion of privacy (intrusion upon seclusion), P must show:

(1) Intrusion into P’s private affairs or solicitude (for which there is an adequate expectation of privacy), and

(2) The intrusion must be highly offensive to a reasonable person

Public interest is not a defense