torts rule statements

assault

an intentional act by the defendant creating plaintiff’s reasonable apprehension of immediate harmful or offensive contact to plaintiff or their person

battery

an intentional harmful or offensive contact to plaintiff’s person by the defendant

false imprisonment

an intentional act by defendant resulting in plaintiff’s restraint or confinement to a bounded area

intentional infliction of emotional distress

extreme and outrageous conduct by defendant causing plaintiff’s severe emotional distress

intent or recklessness

bystander claims for emotional distress

when defendant’s conduct is directed at a third person and plaintiff (the bystander) suffers severe emotional distress, plaintiff must prove the same IIED elements with additional intent and causation requirements. plaintiff must have been present at the time, a close relative or distress resulted in bodily harm and defendant knew these facts

trespass to land

physical entry of plaintiff’s real property by defendant with intent

actual damages not required

trespass to chattel

defendant intentionally interferes with plaintiff’s right of possession in tangible personal property - minor interference or damage

plaintiff can recover cost of repair or rental value of chattel

conversion

defendant intentionally interferes with plaintiff’s right of possession in tangible personal property - significant interference or damage that justifies defendant paying the chattel’s full value

plaintiff can recover full market value at the time of conversion or repossess the chattel

defamation

a false, defamatory statement concerning the plaintiff made by defendant to at least one person other than plaintiff that is harmful to plaintiff’s reputation

defamation damages

libel for public figures: presumed damages for reputational harm without any proof

libel for private figures who prove negligence: presumed damages only if the speech relates to a matter of private concern

slander: plaintiff must prove special damages

appropriation

unauthorized use of plaintiff’s name or likeness for commercial purposes. newsworthiness exception

false light

widespread publication of a falsehood or material misrepresentation about plaintiff that would be highly offensive to a reasonable person. plaintiff must prove actual malice or reckless disregard for the truth of the matter publicized

intrusion upon seclusion

intrusion upon plaintiff’s private affairs in a manner that would be highly offensive to a reasonable person

plaintiff must have a reasonable expectation of privacy

disclosure

disclosure must be highly offensive to a reasonable person and publicized to a public audience

newsworthiness exception

intentional misrepresentation

defendant misrepresents a past or present material fact

defendant knows or believes the misrepresentation is false (scienter)

defendant intends to induce plaintiff to act or refrain from acting in reliance on the misrepresentation

actual reliance by plaintiff

justifiable reliance by plaintiff

damages

negligent misrepresentation

defendant misrepresents a past or present material fact in a business or professional setting

breach of duty of care owed to a particular plaintiff

actual and justifiable reliance by plaintiff

damages

intentional interference with business relations/contract

plaintiff has a valid contractual relationship or business expectancy

defendant has knowledge of the relationship or expectancy

defendant intentionally interferes with that relationship

defendant’s interference causes a breach or termination of plaintiff’s contract or expectancy

damages

negligence

duty of care

breach of duty

causation

damages

(reasonable person standard)

duty of care

to behave like a reasonably prudent person under the circumstances to all foreseeable plaintiffs

negligence per se

plaintiff must prove that harm suffered is the type the statute was meant to prevent

plaintiff is in the class of victims the statute was meant to protect, and

the statute applies a standard of conduct - says what to do or not do

duty of care to anticipated trespassers

owner has duty to make dangerous conditions safe or warn of any known, concealed, man-made hazards

attractive nuisance

owner must take reasonable care to eliminate dangers on her property or protect children from those dangers if

she is aware or should be aware of a dangerous condition on her property

she knows or should know children are in the vicinity

the condition is likely to cause injury given a child’s inability to appreciate the risk, and

the magnitude of the risk outweighs its utility or the expense of remedying it

duty of care to licensees and invitees

licensee: one who enters land with owner’s permission for his own purpose or business

invitee: one who enters land held open to the public or with owner’s permission to confer a commercial benefit

reasonable care

duty to make known dangerous conditions reasonably safe

limited by the scope of the invitation or license

res ipsa loquitur

the very occurrence of the accident causing plaintiff’s injuries suggests negligent conduct

must show inference of negligence attributable to defendant and the injury was not attributable to plaintiff

actual cause

establishes a causal connection between the alleged breach of duty and the resulting injury

but-for causation

proximate cause

establishes that it is fair under the law to hold defendant responsible for plaintiff’s injuries

foreseeability

damages for personal injury in negligence

defendant must compensate plaintiff for all damages including past, present, and prospective

economic and non-economic damages are recoverable

damages to property in negligence

plaintiff can recover the reasonable cost of repair

if property is irreparable, damages are the full market value at the time the accident occurred

punitive damages in negligence

only recoverable if defendant’s conduct is wanton and willful, reckless, or malicious

usually not available in negligence cases, more common with intentional torts

comparative negligence

defendant can establish that plaintiff’s injuries are at least partially the result of plaintiff’s own negligence

partial/modified comparative negligence

plaintiff can only recover damages if he was less than 50% at fault

pure comparative negligence

plaintiff can recover damages even if he was more than 50% at fault

contributory negligence

plaintiff is barred from recovery if defendant establishes that plaintiff’s negligence contributed to their injuries

last clear chance defense

assumption of risk

defendant can deny plaintiff’s recovery by establishing that plaintiff assumed the risk of damage caused by defendant’s act

must how plaintiff knew of the risk and voluntarily proceeded in the face of that risk

negligent infliction of emotional distress

defendant’s negligence results in a close risk of bodily harm to plaintiff

defendant’s negligence results in plaintiff’s severe emotional distress

plaintiff exhibits some physical manifestation attributable to her emotional distress

abnormally dangerous conditions

exists if there is a severe risk of harm to persons or property that cannot be made reasonably safe even when all actors use reasonable care. the condition or activity must be uncommon in the community

injury must result from the abnormally dangerous activity

products liability elements

defendant is a commercial supplier

product is defective

defective product was actual and proximate cause of plaintiff’s injury

plaintiff used the product in a foreseeable manner

types of product defects

manufacturing: product departs from its intended design, causing it to be more dangerous than all of the manufacturer’s other products of the same kind

design: product creates an unreasonable risk of danger due to its faulty design

inadequate warning: manufacturer fails to adequately warn of a non-obvious risk associated with a product’s use

private nuisance

a substantial, unreasonable interference with another individual’s use or enjoyment of property

must be offensive, annoying, or inconvenient to the average person in the community

public nuisance

unreasonable interference with health, safety, or property rights of the community at large

recovery is only available to a private party if they suffered unique damage not suffered by the public at large