Torts

three elements to prove intentional torts

• requisite mental state: D must act intentionally (purposefully or knowing that the consequences are substantially certain to result) except for IIED where recklessness is sufficient

• tortious conduct: may be a voluntary act or failure to act

• causation: factual and proximate

transferred intent

the requisite intent exists when the D:

• intended to commit one intentional tort against the P but instead committed a different intentional tort

• intended to commit an intentional tort against a 3rd party but instead committed that tort against the P

battery

• D intended to cause a contact with P (or anything connected to P’s person) (single intent rule)

• D’s voluntary and affirmative conduct must cause such contact

• that contact causes bodily harm (ie physical injury, illness, disease, impairment, or death) or be offensive to P

  • contact is offensive if:

    • a reasonable person would think so (objective)

    • the D knows that it is highly offensive to the P’s sense of personal dignity (subjective)

dual intent minority rule for battery

• intent to cause contact AND

• intent that contact be harmful or offensive

assault

• D intended to cause P to anticipate imminent harmful or offensive contact

• D’s affirmative conduct caused P to anticipate such contact

• note:

  • no actual contact required

  • P must be aware of D’s conduct and the anticipated contact must be harmful or offensive

  • threats of future harm or threats from a D who is too far away to actually make contact do not usually meet the imminence requirement

IIED

• D by extreme and outrageous conduct intentionally or recklessly caused P severe emotional distress

• conduct is extreme or outrageous if it exceeds the possible limits of human decency, making it unacceptable in civilized society

• transferred intent may apply if, instead of harming the intended person, the D’s extreme and outrageous conduct harms another

IIED: public figures or public concern

• to recover IIED by reason of publication, public figures and public officials must show falsity and actual malice

• private Ps cannot recover for IIED if the conduct at issue was speech on a matter of public concern because that conduct may be protected by the first Amendment

emotional distress caused by harm to third party

• a D who intentionally or recklessly harms a victim may be liable to the victim’s close family members who witness the D’s conduct and suffer severe emotional distress

• but if the D’s purpose is to upset a third party, the third party cannot recover without having witnessed the conduct or being related to the victim

IIED: causation and damages

• D’s actions must be a factual (but for) cause of P’s distress

• P must experience severe distress beyond what a reasonable person could handle unless the D knows that P is hypersensitive to severe emotional distress

false imprisonment

• D intended to confine P within a limited area

  • confinement may also occur when P is forced to move in a highly restricted way

  • methods of confinement include physical barriers, force, threats, legal authority, duress, failure to provide a means of escape

• D caused the P’s confinement (or failed to release P when there was a duty to do so)

• P must be conscious of the confinement

• P can generally recover nominal and sometimes punitive damages without showing actual damages

  • minority of jdxs require proof of actual damages when the P is unaware of the confinement

consent as defense to intentional torts

• a D is not liable for the otherwise tortious conduct if the P gave legally effective consent to that conduct

• types of consent:

  • actual or express

  • presumed or implied

  • apparent

  • emergency doctrine

actual or express consent

P is willing for the conduct to occur; such willingness may be express or inferred from the facts

apparent consent

D reasonably believes that P is willing for the conduct to occur

presumed or implied consent

D’s conduct is justified based on prevailing social norms, and D has not reason to believe that P would not actually consent

consent: emergency doctrine

D’s conduct is justified if the D:

• intends to prevent/reduce a risk to P’s life or health

• reasonably believes that (1) the risk substantially outweighs the plaintiff’s interest in avoiding the conduct and (2) immediate action is necessary and

• has no reason to believe the P would not consent

determination of whether a participant in an athletic or recreational activity can rely on apparent or presumed consent

look at a variety of factors including whether the conduct is in violation of a safety rule of the sport, whether conduct typically occurs during the activity, and whether the conduct involves signfiicant tirsks of very serious injury or death

self-defense

• D claiming this privilege must reasonably believe that the force is necessary and proportionate to the unprivileged force that the P is intentionally inflicting or about to inflict

• D’s use of force must be for defensive purposes, though D may have additional motives

• if P withdraws, D loses privilege to use force in self-defense

self-defense: excessive force

• D who uses excessive force remains liable for (1) any harm attributable to the excessive force or (2) all indivisible harm caused by the privileged force and the excessive force

self-defense: non-deadly force

• D must reasonably believe that:

  • P is intentionally using or is about to use unprivileged force on D

  • force that D is using is proportionate AND

  • immediate use of force is the only way to prevent P’s force or threat of force

self-defense: deadly force

D must reasonably believe that:

• P is intentionally using or about to use unprivileged force that will lead to death, serious bodily harm, or rape AND

• D can safely prevent this harm only by immediately using deadly force

under majority rule there is no duty to retreat before using force in self-defense

self-defense: harm to bystander

D may use nondeadly force against a bystander if D reasonably believes that:

• force that P is using against D is substantially grater than the force that D uses against bystander

• D’s use of force against bystander is immediately necessary to avoid P’s threat or use of force

defense of third persons

• D must reasonably believe that the third person is privileged to use force in self-defense and that intervention is immediately necessary

defense of property

D is privileged to act to prevent P’s imminent intrusion on D’s and or personal property if:

• intrusion is not privileged

• D reasonably believes that P is intruding or is about to intrude and that only the means used can prevent this

• D first asks the P to stop or reasonably believes that the doing so would be futile or dangerous

• the means used are reasonably proportionate to the value of whatever the D is protecting AND

• the means used are not intended or likely to cause death or serious bodily injury

NO DEADLY FORCE ALLOWED!!!

D must use legal process and not force to regain property

privilege to discipline or control a minor child

• parents may use reasonable force or confinement based on a child’s age and the gravity of the behavior

• educators may use reasonable force to maintain order or safety

privilege of arrest: private actor

• felony arrest: force may be used to make a felony arrest if (1) the felony has in fact been committed and (2) the D has reasonable grounds to suspect that the person being arrested committed it

  • under R2d D must also reasonably believe that law enforcement will likely be unable to apprehend the other unless the D immediately uses such force

• misdemeanor arrest: under majority rule, misdemeanor must happen in front of the private actor and be a breach of the peace

  • R3d recognizes the privilege only if (1) the misdemeanor creates a substantial risk of bodily harm and (2) the private actor reasonably believes that that police will be unable to stop it

privilege of arrest: law enforcement officials

• law enforcement officials may use force, threat of force, or confinement to make an arrest, investigate, or stop a crime, or otherwise enforce the law

• off-duty officials are treated like private actors

privilege of arrest; use of force

• the force used by private actors of LE officials must be reasonably necessary, proportionate, and for a legitimate purpose

• additionally, the actor must communicate the intent to arrest before using force (unless it would be useless)

merchant’s privilege

• a seller of goods or services may use force against another to investigate a theft, recapture personal property, or facilitate arrest

• the merchant must reasonably believe that the other has wrongfully taken merchandise and failed to pay

• force must be used on or immediately surrounding merchant’s premises, in a reasonable manner, and for a reasonable time

• deadly force not allowed

trespass to chattels

• intentional interference with the P’s right of possession by dispossession or or by use or intermeddling

• only the intend to do the interfering act is needed, and transferred intent applies

• mistake of fact or law is not a defense

• type of interference impacts recoverable damages:

  • dispossession: actual damages, loss of use, and nominal damages available

  • use or intermeddling: only actual damages

  • *actual damages include the chattel’s decrease in value or cost of repair

• necessity is a defense

conversion

an intentional act by the D that:

• deprives the P of possession of a chattel or

• so seriously interferes with the chattel that it deprives the P of its use

• only intent to do the interfering act is needed, but transferred intent does not apply

• damages amount to full value of converted property at the time of conversion

• necessity is a defense

difference between trespass to chattels and conversion

• depends on the degree of seriousness of the interference

• the more extreme the interference, the more likely the court will find conversion

• the following factors are considered:

  • duration and extent of the interference

  • intent to assert a right inconsistent with the rightful possessor

  • D’s good faith

  • expense or inconvenience to P

  • the extent of the harm to the chattel

trespass to land

• requires intent to tenter land or cause physical invasion—not intent to commit a wrongful trespass

• transferred intent applies

• anyone in actual or constructive possession of land maybe P

• no proof of actual damages required because nominal damages may be awarded

• necessity is a defense

private necessity (qualified privilege)

• allows a limited number of people to enter or remain on land to protect themselves or their property from serious harm

• D is still responsible for actual damages

public necessity (absolute privilege)

• allows a trespass to protect a large number of people from public disaster (eg spreading of a fire)

• D is not liable for damage if she acts reasonably

• if if no actual necessity, D not liable if she reasonably believed that there was

private nuisance

• substantial and unreasonable interference with another’s use or enjoyment of land

• interference must be intentional, reckless, negligent or the result of abnormally dangerous conduct

• a substantial interference: one that would be offensive, inconvenient, or annoying to an average reasonable person in the community

• unreasonable interference: one that makes the land unavailable for ordinary use or enjoyment and (1) is per se nuisance, (2) does not comport with customs/expectations, (3) results from a failure to use reasonable care, (4) causes physical damage to land/fixtures, or (5) is motivated by malice

• anyone with possessory rights in real property can be a P

defenses to private nuisance

• regulatory compliance (incomplete defense): evidence of the D’s compliance is admissible but not determinative

• coming to nuisance: may be considered by the jury

public nuisance

• unreasonable interference with a right common to the general public

• private citizens are appropriate Ps if they have suffered harm that is different in kind from the general public

• same defenses that can be asserted for private nuisance apply

remedies for nuisance

usual remedy is damages, but injunctive relief may be available

duty of care

owed to anyone who may foreseeably be injured by a D’s failure to act as a reasonable person under the circumstances

duty: foreseeability of the plaintiff

Cardozo (majority) view: D is liable only to Ps who are within the zone of foreseeable harm

Andrews (minority) view: if D can foresee harm to anyone due to his own negligence, then duty is owed to everyone harmed (foreseeable or not

scope of duty to rescuer/rescued party

• D may be liable for negligently putting the rescued party or the rescuer in danger

• if the rescuer’s efforts are unreasonable, comparative responsibility applies

• under the firefighter’s rule, emergency professionals cannot recover for injuries resulting from the risks of the job

affirmative duty to act

generally no duty to act affirmatively but duty to act may be imposed:

• if D assumes a duty

• if D places another in peril

• if D has actual authority to control another (parent over child, employer of employee, etc.)

• by K

• by a relationship (employer-employee, parent-child, etc.)

• by statute imposing an obligation to act for the protection of another

reasonably prudent person

objective standard that takes physical characteristics into account but not mental ones

the D with special skills or knowledge must apply them with reasonable care and attention

the voluntarily intoxicated person is held to same standard as sober person

a child is held to the standard of a reasonable child of similar age, intelligence, and experience (but child engaged in high-risk adult activity is held to higher adult standard)

SOC of common carriers (buses, planes, trains)

• held to highest duty of care consistent with the practical operation of the business

• can be held liable for “slight negligence”

SOC of innkeepers

liable only for ordinary negligence (at common law they could be held liable for slight negligence)

SOC of automobile drivers

ordinary care owed to their guests (nonpaying) and their passengers (paying) unless there is a guest statute (impose duty to refrain from gross or wanton and willful misconduct with a guest in the car

SOC of gratuitous bailors

need only inform the bailee of known dangerous defects

in contrast, compensated bailors must inform the bailee of defects that the bailor knows or should have known about with reasonable diligence

SOC of bailees

liable only for gross negligence in a bailment for the bailor’s sole benefit

if bailee receives sole benefit of the bailment, must exercise extraordinary care

bailees in a bailment for mutual benefit must exercise reasonable care

standard of care for possessors of land: traditional approach

invitees: inspect of unknown dangers, make safe or warn, and prevent harm from active operations

licensees: warn of concealed dangers that are known or should be obvious to the land possessor

known or anticipated trespassers: warn of concealed artificial dangers

other trespassers: refrain from willful wanton, reckless, or intentional misconduct (traps)

standard of care for possessors of land: R3d minority rule

invitee, licensee, or known trespassers: exercise reasonable care under all circumstances

other trespassers: refrain from willful wanton, reckless, or intentional misconduct (traps)

duty owed to trespassing children

under the attractive nuisance doctrine, land possessors are liable for injuries to trespassing children if:

• an artificial condition poses an unreasonable risk of serious bodily injury to children

• children cannot discover or appreciate the danger

• the utility of the condition is slight compared with the risk of injury and

• the land possessor fails to exercise reasonable care

duty owed b/w landlords and tenants

• LLs are liable for injuries occurring (1) in common areas, (2) as a result of hidden dangers about which they fail to warn the tenant, (3) on premises leased for public use, (4) as a result of a hazard caused by negligent repair, (5) as a result of a hazard that the LL agreed to repair

• tenants are liable for injuries arising from dangerous conditions within their control

duty owed by LLs to off-premises victims

• generally no duty owed if the off-premises victim is harmed by a natural condition (except for trees in urban areas)

• LLs have duty to prevent unreasonable risk of harm for artificial conditions

duty owed by sellers of real property

• duty to disclose to buyers any concealed and unreasonably dangerous conditions known to the seller

• seller’s liability continues until the buyer has a reasonable opportunity to discover and remedy the defect

breach of duty

• occurs when a D departs from the required SOC

• under traditional (majority) approach courts compare the D’s conduct to that of a reasonable prudent person in the circumstances (objective)

• under modern (R3d) approach, courts do a cost-benefit analysis, weighing the foreseeable likelihood that D’s conduct would cause harm, the foreseeable severity of resulting harm, and the D’s burden in avoiding the harm

general custom evidence and breach

generally admissible but not conclusive to establish proper SOC

custom evidence for professionals

• deviation from or compliance with custom is dispositive evidence of breach

• professionals are expected to use the same skill, knowledge, and care as an ordinary practitioner in the same community

• specialists may be held to a higher standard than general practitioners

• an expert must establish SOC for professional unless negligence is so obvious that a layperson can identify it (eg a surgeon amputating the wrong leg)

custom evidence for physicians

held to national standard of care in most jdxs (departure from same or similar locale standard)

failure to comply with the informed consent doctrine amounts to medical negligence (ie malpractice) unless the risk is commonly known, the patient is unconscious, the patient waives or refuses the information, the patient is incompetent, or disclosure would be detrimental

negligence per se

four elements:

• a criminal or regulatory statute imposes a specific duty to protect others

• the D violates the statute by failing to perform that duty

• the P is in a class of ppl intended to be protected by the statute

• the harm is of the type that the statute was intended to protect against

court must still find proximate cause

negligence per se defenses

• compliance was impossible or more dangerous than violating the statute

• the violation was reasonable under the circumstances or the D exercised reasonable care in attempting to comply with the statute

• the statutory requirements were confusing (eg vague or ambiguous)

• compliance with federal regs preempts a common-law tort action

res ipsa loquitur

the trier of fact may infer the existence of a D’s negligent conduct in the absence of direct evidence of such negligence

requires proof of the following:

• accident was of a kind that ordinarily does not occur within the absence of negligence

• accident was caused by an agent/instrumentality within the exclusive control of the D (interpreted generously)

• the accident was not due to any action on part of the P

actual cause (cause in fact)

• D’s tortious conduct is the factual cause of the P’s injury if the injury would not have occurred but for the D’s conduct

• if multiple causes, the test is whether the D’s conduct was a substantial factor in causing those injuries

• if unclear who caused the injury, the court may shift the burden to each D to prove he did not cause the injury

• joint and several liability may apply if two or more Ds are each a factual cause of the P’s indivisible injury or if they acted with a common plan or design

proximate cause (legal cause)

a legal limitation on factual cause, focusing on foreseeability

• majority rule: Ds are liable for reasonably foreseeable consequences, so Ps can recover if they were foreseeable victims of the D’s conduct

• minority rule/Andrew’s test: Ds are liable for all direct consequences of their conduct, and Ps can recover if their harm was within the scope of liability of the D’s conduct

the type of damages must also be foreseeable, but under the eggshell plaintiff rule, the extent of the damages need not be

damages: actual physical harm

• a P must prove actual physical harm (bodily harm or property damage)

  • a P with physical harm may add ED as parasitic damages (eg NIED claims)

• P may recover compensatory damages, the general measure of which is compensation that would make the victim whole, but P must take reasonable steps to mitigate

• pure economic loss, nominal damages, and atty’s fees are not recoverable

damages: personal injury

• include medical and rehabilitative expenses (past and future), pain and suffering, and lost income and reduction in FEP

• eggshell P rule applies

damages: property damage

P can generally recover (1) the difference between fmv immediately before and after the injury or (2) the cost of repairs, if it does not exceed the value of the property

collateral-source rule

• under traditional rule, benefits from outside sources (eg P’s med insurance) are not credited against D’s liability

• however, payments made by D’s insurer are not collateral source and are credited against D’s liability

• most states have eliminated or substantially modified this rule

punitive damages

recoverable if there is clear and convincing evidence that the D acted willfully and wantonly, recklessly, or with malice

torts that inherently involve this state of mind or behavior often give rise to them

awards generally cannot exceed a single-digit ration between punitive and compensatory damages

NIED

zone of danger theory:

• to recover under zone of danger theory P must prove that she was in the zone of danger (ie feared for her safety) and that the threat of physical impact caused emotional distress

• under the majority rule, ED must be manifested by physical symptoms (eg nightmares, shock) but under the minority rule and R3d, physical symptoms are not required

bystander theory

• a P outside of the zone of danger can still recover under bystander theory if P is closely related to the person injured by the D, was present at the scene, and personally observed or perceived the injury

• under majority rule, physical symptoms of ED are required

negligence and pure economic loss

no recovery for pure economic loss

wrongful death actions

• a decedent’s spouse, next of kin, or personal representative may bring suit to recover losses suffered as a result of a decedent’s death

• this includes damages for loss of support, companionship, society, and affection (but not pain and suffering)

• recovery is limited to whatever the deceased would have recovered had the deceased lived

survival actions

the representative of the decedent’s estate may pursue any claims that the decedent would have had at the time of death (including claims for pain and suffering)

however, double recovery is not allowed if the jdx recognizes both wrongful death and survival actions

recovery for loss arising from injury to family member

a person may recover for loss of consortium and society resulting from a physical or emotional injury to a spouse or child

wrongful life actions

• recognized in a few states

• allowed by a child based on the failure to properly perform a contraceptive procedure or diagnose a congenital defect

• recovery is limited to special damages attributable to the child’s disability

wrongful birth actions

many states allow parents to recover for failure to diagnose a defect of for wrongful pregnancy

the mother can generally recover for the med expenses of labor plus pain and suffering

if the child is disabled, then the parents may be able to recover damages for the med expenses of caring for that child (and for ED in some states)

vicarious liability

a form of strict liability in which one person is liable for the tortious actions of another

arises when a person has the right, ability or duty to control the activities of another

employer’s liability for an employee’s torts (respondeat superior)

• an employer is vicariously liable for an employee’s tortious conduct when (1) an employer-employee relationship exists and (2) the employee’s tortious conduct occurs within the scope of employment

• an employer is not liable for an employee’s intentional torts except when:

  • the conduct involves work assigned by the employer (eg bouncer using force)

  • the employee’s tort is intended (at least in part) to benefit the employer or

  • the employee is acting with apparent authority (eg an employee with the power to sign contracts enters a fraudulent one)

• an employer may also be directly liable for negligently hiring, training, supervising, or otherwise controlling an employee

liability for independent contractor’s torts

• a person who engages an independent contractor is generally not vicariously liable for the contractor’s torts subject to the following exceptions:

  • the person retains control over the item that is the source of the tortious conduct

  • the independent contractor is performing abnormally or inherently dangerous activities or nondelegable duties

  • the independent contractor is acting with apparent agency

• a person may also be liable for his own negligence in selecting or supervising an independent contractor

vicarious liability of business partners and joint enterprise participants

may be liable for each other’s tortious acts that are committed within the scope of partnership/business purpose

vicarious liability of automobile owners

• negligent entrustment: the owner of a vehicle (or any object with harmful potential) may be liable if the owner knew or should have known about the entrusted user’s negligent propensities

• family purpose: in many jdxs a car owner may be liable for the tortious acts of a family member driving the car without permission

• owner-liability statutes:

vicarious liability of parents and their children

• general rule is that parents are not vicariously liable for the torts of their children unless the child was acting as their agent or state statute applies

• however, parents are directly liable for their own negligence if they fail to use reasonable care to prevent their child from intentionally or negligently harming someone else, provided the parents (1) control the child and (2) know or should know about the necessity and opportunity for exercising control

dram-shop liability

• many states recognize causes of action against the seller of intoxicating beverages when a third party is injured because of the buyer’s intoxication

• most states limit liability to social hosts to circumstances in which the buyer was a minor or intoxicated at the time of the sale

• additionally many states extend liability to social hosts for injuries to intoxicated guests and/or third parties by intoxicated guests

liability of fed govt

• the US govt waives immunity and can be liable in tort actions with these exceptions:

  • 1) enumerated torts

  • 2) discretionary functions

  • 3) govt contractor in products-liability case (unless contractor failed to warn or conform to govt specifications)

  • 4) traditional govt activities

• note that immunity is waived for intentional torts by LEO

liability of state govt

most states have at least partially waived immunity, but states’ torts claims acts vary

liability of municipalities

governed by state tort claims acts

traditionally immunity attached only to govt functions

liability of govt officials

• immunity applies to the performance of discretionary functions entrusted to govt officials by law, unless the official acts with malice or an improper purpose

• there is no tort immunity for carrying out ministerial acts

• legislators performing their legislative functions, judges performing their judicial functions, and prosecutors are absolutely immune from personal liability

public duty rule

there is no liability for any one citizen for the failure to fulfill a duty to the public at large unless that citizen has a special relationship with the municipality that creates a special duty

intra-family immunity

• interspousal immunity has been abolished in most states

• parent-child immunity is generally limited to core parenting activities

charitable immunity

• has been totally or partially eliminated in most states

• some states cap the amount of damages recoverable from a charitable institution

joint and several liability

• default rule on MBE!

• each of two or more Ds who are found liable for a single divisible harm to the P is subject to liability to the plaintiff for the entire harm

pure and several liability

each D is liable only for his proportionate share of the P’s damages

contribution

• under joint and several liability, a D who pays more than his fair share of damages for the common liability can sue the other Ds for contribution and recover anything paid in excess of his fair share

• D seeking contribution must prove that the other D would have been liable to the P for the amount sought as contribution

• an intentional tortfeasor generally cannot receive contribution from another tortfeasor

satisfaction and release

even when several tortfeasors may be s/t liability to the P for the entire harm, Ps may not receive double recovery

indeminification

• shifting the entire loss from one person to another

• typically occurs when a person is vicariously liable for another’s wrongdoing, but it also may be based on an agreement, equity, subsequent additional harm, or strict products liability

contributory fault

occurs when a P fails to exercise reasonable care for her own safety and thereby shares a percentage of fault for her injury

contributory negligence

under traditional rule, a complete bar to recovery for negligence but not for intentional torts, gross negligence, or recklessness

last clear chance doctrine

• in contributory negligence jdx, the P may still mitigate legal consequences of her own contributory fault if the D had the last clear chance to avoid injuring the P and failed to do so

• helpless P: the D is liable to a helpless P if the D knew or should have known about the P’s perilous situation

• inattentive P: the D is liable to the P only if the D had actual knowledge of the P’s inattention

pure comparative negligence jdx

• default rule on MBE!

• P’s damages are merely reduced by her percentage of fault

• only applies in negligence cases, not intentional torts

partial (or modified) comparative negligence jdx

• if P is less at fault than the D(s), the P’s recovery reduced by her percentage at fault

• if P is more at fault than the D(s), the P is barred from recovery

• if P and D(s) are equally at fault, P recovers 50% of damages (in a minority of jdxs the P recovers nothing)

• only applies in negligence cases, not intentional torts

assumption of the risk

• traditionally, P’s voluntary encountering of a known, specific risk is an affirmative defense to negligence that affects recovery

• in contributory negligence jdxs assumption of risk is total bar

• in comparative negligence jdxs assumption of risk reduces recovery