MBE Torts

Intentional Torts Elements

1. Intent

2. Voluntary Act

3. Causation

Intentional Torts Elements

1. Intent

2. Voluntary Act

3. Causation

Harms to the person

Battery, Assault, False Imprisonment, IIED

Battery Elements

harmful or offensive contact

with the person of another

that is caused by an intentional act

Assault

intentional, overt act

that creates reasonable apprehension in another

of immediate battery to their person (harmful or offensive contact)

False imprisonment

person acts intentionally

to confine or restrain another

to a bounded area,

confinement directly or indirectly results from the act

IIED

Person acts intentionally or recklessly,

engaged in extreme or outrageous conduct,

leads to victim suffering severe emotional distress

IIED for non relative bystander

physical harm must be shown

Intentional Torts against Property

1. trespass against the land

2. Trespass against chattels

3. Conversion

Trespass against the land

intentional act

that leads to the physical invasion

of the land of another.

Actual damages need not be proven

Trespass against chattels

D intentionally commits an act

that interferes with the P's right of possession over a chattel and

causes dmgs

Conversion

D intentionally commits an act of possession or interference with the P's chattel which is so serious that he deprives the P of the chattel and has to pay the entire value of the chattel at the time of conversion. Must be physical property, or something intangible reduced to physical form

Defenses to intentional torts

1. consent

2. Self-defense

3. Privileges (recapture chattel, discipline child, necessity, arrest)

To whom is duty owed

Foreseeable Plaintiffs

Negligence, Standard of Care

reasonably prudent person in the circumstances (objective)

Bailment Standard of Care

1. if bailor is the only person benefitting - bailee must refrain from gross negligence in use of item (low standard of care)

2. Bailee is sole beneficiary - ee obligated to use extraordinary higher standard of care

3. If benefits both, standard of care needs to use reasonable ordinary care

Landowner Duty to Trespassers

LO owes a duty of care to trespassers to refrain from willful, wanton or intentional misconduct towards the trespasser

Landowner Duty to Discovered Trespasser

duty to protect that trespasser from concealed, artificially created dangerous conditions

Attractive nuisance

landowner will be liable if

1. there is an artificial condition and landowner knows or should know that kids will trespass in the area

2. Landowner knows that the condition poses an unreasonable risk of death or SBI

3. The kids cannot discover or appreciate the danger of the condition

4. The utility of maintaining the condition and the burden of eliminating are slight compared to the harm to the kids

5. The landowner fails to exercise reasonable care to protect kids

LO duty to licensees

1. enters with consent or privilege

2. LO must warn of any known dangers that are unlikely to be discovered

3. LO must take reasonable care in undertaking any activities on the land

LO duty to invitee

highest level of care, reasonable care in both passive conditions and activities conducted. Does not extend outside the scope of invitation

LO duty: recreational use of land

not liable to those who use the rec space for free, but must refrain from willful, malicious failure to warn those users of dangerous conditions

LO duty to adjacent occupants

generally LO does not owe a duty, except for trees in urban area, if condition is artificially created, LO has a duty of reasonable care to those off the premises

Sellers of Land

duty to disclose defects known to the seller and unlikely to be discovered if there is insufficient time for the buyer to inspect and remedy

Negligence Per Se

P invokes to show D breached a duty created by statute or admin reg

Negligence Per Se elements

1. P was member of class intended to be protected

2. Interest was the one intended to be protected

3. The harm that materialized was the harm intended to be prevented

4. The harm arose in the manner that the leg intended

affirmative duty to act when

1. assumed the duty

2. Placed another in peril

3. Contractual duty

4. Authority relationship to intervene

5. Business relationship obligates a proprietor to act

Proof of fault

POTE for each element or Res Ipsa Loquitor

Res Ipsa Loquitor Elements

1. this the kind of accident that wouldn't ordinarily happen in the absence of negligence

2. Instrumentality that caused the harm was in D's exclusive control

3. The victim did not voluntarily contribute to the harm

Proving gives P a prima facie case that neg exists, and case must go to the jury

Needs to be a lack of access to specific evidence

Cause in Fact

P must prove by POTE that but for D's act, P would not have been injured.

If multiple actors, must establish that D's was a substantial factor

If multiple D's, on them to prove that they weren't the but for cause

Proximate cause

generally there's close connection in time and space between D's act and P's injury

Except if there is a direct result that is unforeseeable, in which case the but for cause is not the legal cause. If the intervening cause AND harm were unforeseeable, D won't be liable

Negligent IED

D creates a foreseeable risk of injury to P and that causes a threat of physical impact that leads to the distress or severe ED that is likely to result in physical symptoms

Direct NIED

V can only recover for ED if there was an actual physical touch that led V to suffer. Three part test:

One. Whether the V is at risk of Death or SBI

Two. Whether a reasonable person in V's pos would suffer SED as result

Three. Whether the V actually subjectively xp'd the Distress

Indirect NIED

V suffers ED by witnessing harm to another. Zone of danger test:

1. Bystander must have close rel to the V who suffered Death or SBI

2. Bystander himself was at risk for death or SBI

3. As a result of witnessing the harm, the V suffered SED

Wrongful death

CL: CoA dies with P. Survival statutes allow decedent's estate to recover as if decedent had lived

Vicarious Liability

Employer and Employee, does not cover intentional torts

Municipality will be liable when

V can sue for a promised action that is not performed if:

1. City promised

2. City knew the failure to do so would cause harm

3. City had direct contact between the agents and V

4. And V justifiably relied on city's promise

Multiple Defendants Liability

Jointly and severally if multiple D's act in concert pursuant to common plan or agreement or independent tortfeasors cause an injury and that injury is indivisible

Defenses to negligence

contributory negligence, comparative fault, assumption of risk

Strict Liability

duty, breach, actual and prox cause, and damages. 3 situations (DAD): dangerous activities, animals, defective products

Strict Liability - Animals

4. Trespasser: No SL unless the animal is a vicious watchdog

5. Licensee or invitee: SL for injuries caused by wild or abnormally dangerous animals on the property as long as the invitee doesn't exceed the scope of consent

6. Escaped animals: owners are SL for foreseeable harms caused by the escaped animals

7. Wild animals: SL for any harm, despite any precautions taken, so long as V did not knowingly bring about the harm, and the injury must be char of the wild propensity of the animal

8. Domestic animals: pets, owner not SL for pets unless knew or shoulda that animal's dangerous propensity and harm must be the type known to owner

Products Liability

as a result of defective design, manufacturing or warnings

Breach of Warranty - Implied warranties

brought against seller, implied warrant of merchantability, product is fit for the ordinary purposes for which it is sold.

Implied warranty of fitness if seller knew of a particular purpose and chose it for P

Private Nuisance

when D uses prop in a way that substantially and unreasonably interferes with P's use or enjoyment of the prop. Avg member of the community standard, unreasonable if interference outweighs any utility for D

public nuisance

only gov't can bring suit, unless P can show unique injury

Remedies for nuisance

money for depreciation in value, injunctive relief after balancing the hardships, self help

Defamation

use defamatory lg of our about P, published to a 3P who understands the defamatory nature and damages P's rep

Defamation standards

1. Public figure - malice knew of falsity or was reckless regarding truthfulness

2. Ltd public figure: treated as public figure only as to stmts relating to the controversy

3. Priv figure, matter of public concern: P must show D acted with actual malice or negligence in re: to truth or falsity

4. Priv figure, private matter: negligence

Defamation defenses

truth, consent, privilege

Defamation damages

general or specific

Invasion of privacy (IFLAP)

intrusion, False Light, Appropriation, Private Facts (not if newsworthy)

Defenses to IFLAP

consent only

Intentional Misrepresentation

D mad misrep in either an affirmative stmt of fact or thru omission of material fact

Negligent Misrepresentation

misrep results from breach of duty owed to P that caused justifiable reliance and damages

Intentional interference with business relationship

1. D knew of K rel between P and 3P, D intentionally acted in a way that resulted in a breach of K or termination of expectancy of K and dmgs

2. D must cause or induce the breach or interference

Interference with business relations damages

actual, punitive or emotional distress dmgs

Interence with business relations defenses

intentional act was proper to obtain business or intended to protect the D's business interests

Trade Libel

1. Stmts directed at P's business, not personal rep

2. P must show special dmgs; Publication to 3P, a derogatory stmt, relates to P's business, interference with business

3. No recovery for ED or mental anguish

Wrongful institution or legal proceedings

Malicious prosecution: D must intentionally and maliciously institute or pursue a cause for improper purpose, a legal action brought without PC, action is dismissed in favor of V

Abuse of process: misuse of the power of the ct (est actual dmgs)