Torts

All Torts

Intentional torts prima facie case

1) act by D

2) intent by D

3) causation

Is incapacity a defense to intentional torts?

nope, children and incompetent ppl still liable

Which torts allow transferred intent?

assault, battery, false imprisonment, tresspass to land/chattels

Battery

1) harmful or offensive contact

2) w/ P’s person

harmful/offensive contact

actual injury or unconsented to a reasonable oerson

can be direct/indirect like poison food

what is p’s person for battery purposes?

includes anything P is connected with like clothes, purse, cane

Assault

requires

1) act by D

2) creating a reasonable apprehention in P

3) resulting from an immediate battery

Reasonable Apprehension for Assault

knowledge/awareness of a threath from D’s act

words alone not enough - must be coupled with conduct

must be about the fact that they’re about to become a victim of a battery rn

False Imprisonment

1) act confines or restrains P

2) as a result, P confined to a bounded area

Confinement in false imprisonment

physical barrier; plausible threats , ommission to act when duty to; invalid use of legal authority → all can create

P must be aware of confinement

Time of confinement irrelevant

Bounded Area for False Imprisonment

no need for exact boundaries

requires no reasonable means of escape reasonably known to P

Intentional Infliction of Emotional Distress

~intent → recklessness will satisfy

1) act by D amounts to extreme and outrageous conduct

2) P must suffer severe emotional distress- actual damage

extreme and outrageous conduct

• exceeds all bounds of decency tolerated in civilized society

IIED special circumstances

• conduct normally not this may become this if: any of these

  • continuous in nature;

  • committed by certain type of D; (common carrier)

    • innkeeper, transporation carrier (airline, SEPTA)

  • directed toward certain type of P

    • young, pregnant, elderly, particular emotional sensitive person which D knows about

IIED required what type fo damage to P?

P must show actual damages- offer at least some evidence of it

• not exactly require physical symptoms

• need to show you had emotional distress somehow

Trespass to Land

1) act of physical invasion

• with intent to go on property- deliberate act

• can be w/ an object

• can’t be noise, vibration etc- must be tangible

2) of land

Land for Trespass to land includes what?

includes air above and soil below out to a reasonable usable distance

Trespass to Chattels

Act by D that interferes w/ P’s right of posession in a chattel/personal property (small harm)

Conversion

Act by D that interferes w/ P’s right of posession in a chattel/personal property ;

harm/interference SO serious and significant that it warrants a full value payment for the chattel

• Conversion will be found if the defendant was using the chattel without permission and it was accidentally damaged, as in this case.

intent element for trespass to chattel/conversion

intent to trespass not required- only intent to do the act of interference

Is mistakenly thinking a chattel was yours- a defense to trespass to chattel?

No, Mistaken belief is not a defense

Conversion damages

FMV @ the time of conversion

List of Defenses for intentional torts

consent, necessity, protective privileges: self-defense, defense of others, defense of property

Consent

Defense to intentional torts

• capacity required

• can be express or implied

  • not if: mistake, fraud, or duress

• can’t exceed past scope given

Implied Consent

Jury makes the call but looks at Social custom and usage

• routine invasions? - sports

• body language consent- reach hand out for handshake

Self-Defense & Defense of Others

1) threat must be imminent but not yet happened

2) reasonable belief that threat is genuine

• mistake allowed

3) only allowed to use necessary/reasonable force

~ can defend others if they reasonably had self-defense privilege

Duty to retreat?

no duty to retreat for deadly attack, or in home

Shopkeeper’s Privilege

allows detention of shoplifting suspect as long as

• reasonable belief

• in reasonable manner

• for reasonable time

Necessity Defense

Can be public or private - comes into play in an emergency situation

Private necessity

~Save yourself~

• D acts in emergency to protect own interests

• This is a “Limited/qualified defense”

  • Must still pay dmgs

    • but not liable for nominal/punitive damages

• can remain until emergency ends

Public Necessity

~hero of the town~

• D acts in emergency to protect community or to “avert imminent public disaster”

• absolute defense - not liable for any damages

Nominal damages vs punitive damages vs compensatory damages

• nominal: pay because a legal right has been violated eventho no financial loss or injury occurred

• punitive: just to punish D

• compensatory: compensating for ACTUAL losses- make them whole again

Prima Facie Negligence

1) Duty

2) Breach

3) Causation - actual and proximate

4) Damages

General Duty of Care

@ baseline: Theres a legally imposed obligation to take risk-reducing precautions for the benefit of others

• to foreseeable victims

• as a hypothetical reasonably prudent person acting under similar circumstances

Who is a foreseeable victim?

Rescuers are foreseeable victims

• but not firefighters or police

Unforeseeable if not in “zone of danger” based on the nature of the activity

What is the reasonably prudent person under same circumstances standard?

Objective standard

D’s deficiencies or inexperience does not matter

• considdered to have same physical characteristics though if it is relevant to the claim (ex. blind→ how would a reasonably prudent blind person act?)

BUT D’s superior skills or knowledge DO matter

Special Standards of Care

Children, Professionals (malpractice), Possessors of Land, Negligence per se, Affirmative Duties, NIED

Duty when D is a child

children under 5 = no capacity to be negligent

children over 18 = adult

5-18 = held to standard of a hypothetical child of same age, experience, and intelligence under same circumstances

• Exception: child engaged in a potentially dangerous adult activity → adult standard of care (ex. driving)

Duty of care when D is a professional

D assumed to possess knowledge and skill of A REAL average member of that profession (look at empirical data)

• doctors will apply national standard of care

What are the categories of people on another’s land that effect the landowners tort liability as to the land’s ______?

“dangerous conditions of land”

The duty owed to a P on D’s land depends on P’s status as either:

• unknown trespasser

• anticipated/known trespasser

• licensee

• invitee

Landowner Duty owed to Unknown trespasser

Regarding dangerous conditions on land:

NO DUTY

Landowner Duty owed to Anticipated/known trespasser

“known man-made secret death traps”

There’s a duty regarding dangerous conditions on the land if:

• artificial condition (made by humans)

• highly dangerous (death or serious bodily harm)

• concealed (not open and notorious)

• known to D in the past or in advance

If all 4 met: there’s a duty to warm or make the condition safe

Landowner Duty owed to Licensee

“all known hidden traps”

There’s a duty regarding dangerous conditions on the land if:

• concealed from licensee

• known by possessor

If both met: There’s a duty to warm or make the condition safe

Landowner Duty owed to Invitee

“all reasonably known hidden traps”

There’s a duty regarding dangerous conditions on the land if:

• concealed from invitee

• either known by D or could have been known by D through reasonably inspection

If both met: There’s a duty to warn OR make the condition safe

Licensee?

one who enters w/ permission for their own purpose/business

NOT for the benefit of the landowner

ex. social guests, solicitor

Invitee?

one who enters w/ permission for the benefit of the landowner; including spaces held open to public (ex. store customer, church)

Duty to Trespassing Children

Duty of a reasonably prudent person to protect from articifial hazards

• Applies most if you have something luring children to your land

  • ex. swings, pool

• Then you must child-proof your property

Who is not protected by the special duty posessors of land have to those on their land?

firefighters, cops because their risks are inherent to their job

Negligence per se

when P uses a criminal statute to prove an alternative standard of care + breach of that standard of care

Must prove:

• “Class of person”: P is w/in protected class; and

  • can’t just be “people” or “the public” → more like “pedestrians” “children” “customers”

• “Class of risk”: Harm suffered is w/in the risks statute was trying to prevent

Exceptions to Negligence per se

Can’t use it if:

• if compliance w/ statute would have been more dangerous

• if compliance was impossible under the circumstances

Affirmative Duties to Act

Generally: No duty to undertake a course of conduct - if choose to act then must do so as a reasonably prudent person under the circumstances

• includes rescue: so no duty to rescue

BUT ~reasonable~ DUTY IF:

• pre-existing relationship b/w parties (inkeeper- guest etc)

• D caused P’s peril

Negligent Infliction of Emotional Distress

3 types:

1) P herself was almost hurt

2) P upset for someone they know getting hurt

3) Business relationship

Negligent Infliction of Emotional Distress for self

P almost hurt:

(1) P was in zone of danger and

(2) suffered physical symptoms - some physical manifestation of distress

Negligent Infliction of Emotional Distress because of someone else

D negligently injures 3rdParty

(1) who was closely related to P;

• spouse, minor child or parent only basically

(2) P was present @ scene and observed event;

which (3) caused P emotional distress;

Negligent Infliction of Emotional Distress in Business Relationship

P can recover if highly foreseeable that D’s careless performance in business relationship causes emotional distress to P

• ex. patient and medical lab: med lab mes up results- you have cancer (didnt fix for a month)

• ex. customer at funeral parlor- negligence

Breach

on exam:

~There is breach because "___” (shortly explain why conduct fell short of the standard of car)

can be an affirmative act or an omissions

• can substitute direct evidence using res ipsa loquitor

Res Ipsa Loquitor

substitutes for direct evidence of a breach when you can’t pinpoint exactly what went wrong - but it’s clear something did go wrong

Must show:

1) accident that occure is normally associated w/ negligence;

• can be shown through common knowledge or stats

2) accident would normally be due to the negligence of someone in this D’s position

• shown D had exclusive control over the thing causing injury

(f)actual causation

TYPICALLY USE:

“but for test” - injury would not have occurred but for (if not for) the breach/act/ommission

• if D was being a reasonable person, would P have escaped injury?

2 SPECIAL SCENARIOS w/ diff tests:

• Merged Causes: Substantial Factor Test

• Unascertainable Causes: D’s burden

Causation when there are merged causes

For Actual Causation:

When 2 D acting independently each commit a breach that combines into a single indivisible harm injuring P (ex. fire)

• Use Substnatial Factor Test: each D can be liable if their own breach was a substantial/significant factor in causing the injury

  • if both found yes→ jointly and severally liable

Causation when there are unascetainable causes

For Actual Causation:

2 NEGLIGENT acts (must be clear both acting negligently) but it’s unknown which one caused the injury (2 shots fired, 1 bullet hit me)

• the burden of proof shifts to Ds, and each must show his own negligence was not the actual cause

  • if neither can convince of their innocence, jointly and severally liable

Proximate Causation

Foreseeability Test

• The outcome must have been a foreseeable risk associated with the breach

  • look at passage of time

  • geographic distance

  • prior occurance

Precenditally foreseeable scenarios that establish proximate cause

• intervening medical malpractice

• intervening negligence of rescuers

Superceding force

intervening forces that produce not foreseeable results

these break the causal connection and relieve D of liability

Can you get punitive damages for negligence?

generally not unless act was:

• wanton and willfull; reckless or malicious

Affirmative Defenses to Negligence

• Comparative Negligence

• Implied Assumption of Risk

Comparative Negligence

Defense to Negligence

D can show that P failed to exercise proper care for own safety

• P’ s recovery reduced by % fault (“comparative fault”)

Exceptions:

• last clear chance: the person with the last clear chance to avoid an accident and who fails to do so is liable for negligence

Assumption of Risk

Defense to Negligence

P may be denied full recovery if P assumed the risk of any damage by D’s act

P must have:

• known the risk; and

• voluntarily proceeded in the fact of the risk

  • requires an available alternative

Pure Comparative negligence vs Partial Comparative negligence

Pure = P recover % no matter what her fault was

Partial = P wont recover if own fault exceeded Ds

Strict liability categories

1) Animals

2) Abnormally dangerous activities

3) Products liability

Animals Strict Liability

only available for

• wild animals you possess

• domesticated animal where you have knowledge of YOUR pets dangerous propensities

no available for trespassers

Abnormally dangerous activities

impose strict liability

For an activity to be in this category- Requires:

1) activity can’t be made reasonable safe even w/ ordinary care

2) activity is uncommon in area/community

ex. explosives, handling/transporting highly toxic/dangerous chemicals, nuclear energy, high-dose radiation

Products Liability

can sue under 5 theories of liability:

intent, neglignece, UCC implied warranties, express warranty/misrep/fraud; strict liability

Strict Products Liability

P must show: ALL 4

1) D is a merchant (routinely deals with goods of this type)

2) Product is defective in either:

• manufacturing

• design

• information

3) Product not substnatially altered since leaving D’s control

• Presumption of no alteration if in ordinary channel of distribution

4) P was making foreseeable use of the product at the time of injury

ESSAY SAID:

(i) D = Merchant/ commercial supplier

(ii) D produced/ sold a product that was defective when it left the defendant’s control;

(iii) Product was actual and proximate cause of P’s injury; and

(iv) P suffered damages to person or property

Manufacturing Defect

this product different from the others- departs from intended design and is more dangerous

Design Defect

all products are the same but the risks of this design outweighs its utility

• offer evidence of an alternative design that is:

  • safer

  • more practical; and

  • economically feasible (costs about the same)

Information Defect

no adequate warnings/ instructions of the risks of this product

Adequate:

• promininent,

• comprehensible (ex. kids product use pictures) ,

• provide info about mitigating risk

Who can you sue for a strict liability products liability?

ANY commercial supplier in the entire distribution chain including:

• manufactureres, wholesalers, retailers

Affirmative Defenses to Strict Liability

Contributory Negligence:

Traditional Rule: knowingly encountering dangerous situation bars recovery

Modern trend (default): assign % of comparative responsibility and reduce P recovery

Nuisance

invasion of property rights that interferes w/ use and enjoyment of real estate/property

2 types: private and public

Private Nuisance

substantial and unreaosnable interference w/ another private individuals use/enjoyment of their property

• specific personal sensitivity does not matter

• severity of injury must outweigh utility of D’s conduct

Public Nuisance

Act unreasonably interfers with the health, safety, or property rights of a community

ex. building used for prostitution

• private party cant only recover if they have UNIQUE dmg that public does not

Nuisance Remedies

• Damages → if not available then injunctive relief

• In Private: P can give D chance to fix herself, and if D fails, P can fix with necessary force

Nuisance Defenses

• legislation like zoning ordinances can be persuasive

• only liable for own conduct

• contributory negligence not defense unless P’s case is negligence

• Allowed to “come onto nuisance” and still sue unless bad faith

Vicarious Liability

when passive tortfeasor liable for the active tortdeasor

• employer- employee (see later)

• independent contractor - hiring party (see later)

Otherwise- principals liable for their agents

Vicarious Liability of Employer

Employer can be held liable if employee acting within scope of employment at the time of the accident

• frolic: - major departure- not liable

• detour: -minor departure- liable

For Intentional Torts: generally outside scope of employment unless:

• employee furthering business of employer (ex. slap for using expired coupon)

• force authorized by employer (ex. bouncer)

• friction generated by employment (bill collector)

Vicarious Liability with Independent Contractors

Generally, hiring party not liable for torts committed by independent contractors if hiring party doesnt control manner and method in which IC does their job

EXCEPT FOR:

• non-delegable duties

• business owner can be liable for I.C. working on premises and hurts customer

Comparative Contribution

Under Joint and Several Liability- D can ask other D for “contribution” for their % of fault

• if for full amount can get indeminification

Defamation elements

1) A defamatory statement that specifically IDs the P

2) Published to a 3rd P

3) Falsity of the defamatory language

4) Fault on part of D

5) Damage to P’s rep

Defamatory statement required what?

• tends to adversly affect one’s reputation

• person must be alive

• must be allegation of facts

  • not opinion, not name calling

• contain any reasonably identifying info about P

Published to 3rd party requirement for defamation

D ONLY NEEDS to have shared the statement w/ AT LEAST ONE PERSON who understood it- other than P

Who bears burden to show falsity of statement in defamation?

Traditional Common Law: to to D to show truth

Modern Rule: P bears burden of showing statement is false

How is D’s fault in defamation determined?

P must show D’s awareness that the statement is inaccurate

• Ordinary Private Person

  • Only require Negligence -

    • D did not exercise reaosnable care to verify accuracy of statement

    • can consider: source, credibility, newsworthyness

• Public Figure

  • P must show D made statements with knowledge or malice- reckless disregard

How are Damages for defamation calculated?

It depends on the category

• Libel: permant form of defamation- printed, written

  • damages presumed

• Slander: spoken defamation

  • P must prove economic harm for recovery

  • UNLESS slander per se

Slander per se

words so clearly defamatory, no need to prove damages

ex.

• realted to P’s business or profession

• P committed a serious crie (felony or crime of moral turptitude)

• P engaged in serious sexual misconduct

• P has a loathsome disease (STD, leprosy, contagrious af)

Do groups have defamation action?

if group is small, all members may have claim

if group is large, no member has a claim

Affirmative Defenses to Defamation

• Consent: complete defense

• Privilege: absolute vs qualified

  • Absolute: based on ID of D

    • communication b/w spouses

    • remarks during proceedings of officers in the 3 branches of gov in connectino w/ official work

  • Qualified: if public interest in encouraging candor- must be proved

Invasion of Privacy Torts

personal right that onyl individuals have to themselves

• Appropriation

• Intrusion on Seclusion

• False Light

• Disclosure

Appropriation

Privacy Tort involving unauthorized use of P’s pic/name for D’s commerical advantage

• applies to all, not just celebs

• acceptable if newsworthy use (ex. ESPN use athelete pic)

Intrusion on Seclusion

Privacy Tort

Acts of prying/intruding onto something with an objectively reasonable expectation of privacy that is highly offensive to a reasonable person

• requires conduct to be in place where there is a reasonable expectationof privacy- not a public place

False Light

Privacy Tort where

Widespread public dissemination of material falsehood about P that would be highly offensive to a reasonable person

• allows recovery for emotional or dignitary damages as opposed to defamation which is economic