Torts (Bar Exam)

Elements of Intentional Torts

VOLUNTARY ACT: Something conscious or willed, as opposed to purely reflexive.

INTENT:

o PURPOSE INTENT: desires the act to cause harmful result or

o KNOWLEDGE INTENT: knows with substantially certainty that such a result will occur .

o TRANSFERRED INTENT: If D acts with necessary intent to inflict certain intentional torts against P, but causes injury to victim, then D’s intent is transferred to victim.

▪ ONLY FOR to battery, assault, false imprisonment, trespass to land, and trespass to chattels.

CAUSATION: D’s act or a force set in motion by D causes P’s injury.

HARM: varies based on kind of tort. can be established by elements or specific injury

Battery

D causes harmful or offensive contact with P’s person or something closely connected to P.

Intent:

▪ desire to cause an immediate harmful or offensive contact; or

▪ knows that such contact is substantially certain to occur.

Harmful or Offensive Contact

▪ Inflict pain or impair any function of the body.

▪ Offensive to a reasonable person.

YOU DO NOT HAVE TO KNOW ABOUT THE CONTACT or prove injury

Privileges/Defenses to Battery

Consent

Assault

● D intentionally causes P to be in reasonable apprehension of an imminent harmful or offensive contact.

o Intent: D must:

▪ act with the desire to cause an immediate harmful or offensive contact or the apprehension of such contact, or

▪ know that such a result is substantially certain to result.

o Reasonable Apprehension – objective standard.

▪ A reasonable person in the same position as P would have experienced the same apprehension.

▪ If the apprehension is reasonable, it doesn’t matter whether D could actually carry out the threat. For instance, brandishing an unloaded gun can still be assault.

o Imminent Battery: Battery must be able to occur almost instantly.

WORDS TYPICALLY ARE NOT ENOUGH

False imprisonment

● D intentionally causes P to be confined to a bounded area against P’s will and P knows of the confinement or is injured by it.

o Intent

§ D desires to confine or restrain P in a bounded area, or

§ knows that such confinement is virtually certain to result.

o Confinement in Bounded Area

- Physical barriers, threats of force, failing to release P after duty to release arises, or the invalid assertion of legal authority.

- DOESN'T MATTER HOW LONG.

- If P has actual knowledge of a reasonable means of escape, then there is no confinement and no liability.

● Reasonable means no threat of harm to P or property. The means of escape can’t expose P to risk of embarrassment.

o P is Aware of Confinement or Injured Thereby (harm/damages)

- If P is aware of confinement: P is entitled to any damages the jury finds appropriate.

- If P is unaware of confinement: P can only claim damages if injured by the confinement.

Defense to False Imprisonment

Consent

Intentional Infliction of Emotional Distress

● D engages in an intentional or reckless act amounting to extreme and outrageous conduct that causes P severe emotional distress.

▪ Intentional: D acts with desire to cause severe emotional distress or knows that such severe emotional distress is virtually certain to occur.

▪ Recklessness: D acts in conscious disregard of a high degree of probability that emotional distress will follow.

o Extreme and Outrageous Conduct

▪ Conduct exceeds all bounds tolerated by civilized society.In particular, police officers, school authorities, landlords, and collecting creditors have been held liable for extreme abuse of their position.

▪ Offensive or insulting language generally not enough, except when:

● D is a common carrier/innkeeper;

● D knows of P’s particular sensitivity; or

● D is an authority figure using racial/ethnic slurs against a subordinate.

o Severe Emotional Distress

▪ P does not have to prove physical injury, but distress must be severe; meaning greater than a reasonable person (objective test) would be expected to endure.

▪ Must be substantial/long lasting as opposed to trivial/transitory.

Trespass to Land

Intentional act that causes a physical invasion of P’s land and interferes with P’s possessory interest in the land. (MISTAKE IS NOT A DEFENSE)

o INTENT

▪ D desired to enter the land/caused something to enter, or

▪ D knew that land entry was substantially certain to result.

o ENTRY

▪ D enters or causes someone/something to enter the land.

▪ D enters the land lawfully but then refuses to leave when required.

▪ D fails to remove/eject from P’s land when under legal duty to do so.

o P’s LAND: Anyone in possession can bring a claim (landowner, tenant, adverse possessor).

Remedies for Trespass to land

o Nominal damages available.

o D is liable for full extent of harm caused by the trespass.

o Restitutionary remedy of ejectment: Action brought by P to have D removed from property.

Trespass to Chattels (minor interference with property)

D interferes with P’s chattel, causing damages. (MISTAKE NOT A DEFENSE)

o INTENT

▪ D intentionally performs the physical act that interferes with P’s chattel.

▪ Liable even though D did not intend to trespass.

INTERFERENCE: uses or borrows without authorization

Plaintiff's Chattel: personal property

When permission has been granted to use the property of another person, reasonable care must be taken in using that property.

Damages for Trespass to chattel

o Proof of actual damages is an element of the cause of action for trespass to chattels.

o Actual damages to the chattel itself are not necessary

- value of loss of use of the chattel during a dispossession or

- the cost to remedy an intermeddling.

Remedies for Trespass to Chattel

o Damages: Cost of repair, fair market rental value, and potentially punitive damages if D is a particularly bad actor (willful, wanton, or malicious conduct).

o Replevin: Get back personal property of which one has been wrongfully dispossessed.

Conversion (Major interference with property)

● Intentional act by D, where D exercises dominion or control that causes the destruction of, or serious and substantial interference with, P’s chattel.

The bona fide purchaser can be sued or forced to return item

Remedies for Conversion

o Forced sale (common): Price will be the fair market value at time converted.

o Replevin: Action brought by P to get personal property back.

o To constitute conversion, rather than merely trespass to chattels, the interference must be severe enough to be control over the chattel inconsistent with the owner's right to possession and sufficient to justify a forced judicial sale of the chattel.

Defenses to Intentional Torts

POPCANS

- Privilege

- Others

- Property

- Consent

- Authority

- Necessity

- Self-defense

Defense of Others

o D is entitled to defend another from an attack by P to the same extent that a third person would be lawfully entitled to defend himself, but D is liable for a mistake (Common Law).

Reasonable Mistake (Modern Law): would a reasonable person believe that defense of the third person was justified and that the defendant’s action was necessary to prevent harm to the third person.

Defense of Property

o D can use reasonable force to defend real or personal property.

o May NEVER use deadly force to protect personal or real property.

o May use reasonable force to eject a trespasser after asking him to leave.

o Recapture of Chattels: Reasonable, non-deadly force may be used to get back own personal property if:

▪ Requests return first or a request would be futile; and

▪ D is in hot pursuit

Defense of Consent

● Usually a defense for battery and assault.

o Express: P affirmatively communicates permission for D to act.

- Limit – Reasonability; D’s actions cannot exceed the scope of consent.

o Implied: A reasonable person interprets P’s conduct as evidencing permission to act.

o Mistake can negate consent when it goes to the consequences or nature of the act.

Authority

Arrest

▪ Police officer can arrest for misdemeanor if D’s action constituted a breach of the peace.

▪ Private person acts at his/her own peril – if wrong, liable for tort.

o Shopkeeper’s Privilege

▪ Not liable for false imprisonment if had a reasonable suspicion that P stole.

▪ Can only detain for a reasonable period and in a reasonable manner on the premises/immediate vicinity.

Discipline: o Parent/teacher may use reasonable force to discipline a child. Nonparent legally given or has voluntarily assumed the control, training, or education of a child is privileged to apply such reasonable force or to impose such reasonable confinement as she reasonably believes to be necessary. A parent may, however, restrict the privilege of one to whom she has entrusted the child.

Necessity (Public/Private)

o D is permitted to injure P’s property if it is reasonably necessary to avoid a substantially greater harm to the public, self, or D’s property.

o Public: D is acting to protect the public at-large from severe harm. Not liable for damages

o Private: D commits an intentional tort to protect himself (better tort was committed than risk the consequence). If a reasonable person would believe the action taken was necessary to avoid the harm, D is privileged even if D made an honest mistake in that regard. Liable for damages

Self Defense

o D honestly and reasonably believes that D used reasonable force to prevent P from engaging in an imminent and unprivileged attack.

▪ D only needs to be reasonable and respond with proportionate force.

▪ Once the threat is over, the defense will not work. There must be an imminent existing threat.

Retreat: One never has to retreat from their own home

Negligence(duty)

D has a legal duty to act as an ordinary, prudent, reasonable person taking precaution against unreasonable risk of injury to others.

● Foreseeable P: D owes this duty only to those persons inside the geographic zone of danger at the time of D’s negligence.

(Non professional Rescuers are Per Se Foreseeable)

Liability if they know that the other person's act constitutes a breach of duty and gives substantial assistance or encouragement to the other person to breach the duty.

Nonfeasance (doing nothing)

Failure to intervene/confer benefit on the P

o No duty to rescue or aid, except when:

▪ D’s tortious conduct creates need to rescue.

▪ Special relationship of dependence or mutual dependence (carrier/passenger, inn keeper/guest, captain/passengers, drinking buddies).

Can't leave someone in a worse position

Duty to Control Third Parties

General rule: There is no duty to control the conduct of a third party as to prevent harm to another.

● Exception:

- special relationship between D and the third party gives the third party a right of protection or

- imposes a duty on D to control the third party’s conduct.

Providers of alcohol (third party)

● Dram Shop Acts: Impose liability on establishments when they know, or should know, a patron is drunk and that person drives while intoxicated and harms a third party.

o These acts typically do not apply to social hosts, but only to those who are licensed to sell alcohol.

Negligent Entrustment

● When D gives something dangerous to someone D knows or should know is not competent to handle it (i.e. Father gives gun to a small child who shoots P).

duty to protect from criminal conduct

▪ Generally, there is no duty to protect another person from third party criminal conduct (nonfeasance) unless:

● Special relationship: landlord/tenant, business/invitee.

Some jurisdictions only find duty where there is a special relationship and prior similar incidents, that make the third party criminal conduct particularly foreseeable

Public Duty Rule

IS there a particular function that requires a duty?

▪ Proprietary Function (acting in private area): Treated as any other D for duty analysis.

▪ Discretionary Activity (using judgment and allocating resources i.e. setting policy): Courts will not find a duty.

▪ Ministerial Function: Duty once government has undertaken to act (Ex: stop sign installed incorrectly leading to accident).

▪ Public Duty Doctrine:

Courts find no duty when professional rescuers (police officers/firefighters) fail to provide an adequate response, except when:

● there is a special relationship between P and the agency; or

● the agency has increased the danger beyond what would otherwise exist.

Negligent Infliction of Emotional Distress

- Must be in zone of danger

- physical manifestation

- EXCEPTIONS:

- D negligently shares info about the death of a loved one

- Negligent mishandling of corpse

It must be shown that the distress was a foreseeable result of the defendant's actions.

Negligent infliction of Emotional Distress (Bystander Actions)

● Physical harm occurs to a close relative and P suffers emotional distress as a result of injury to the close relative.

o P was located near scene of incident;

o P suffered severe emotional distress; and

o P had close relationship with victim (immediate family member).

Wrongful Conception

Birth of a healthy child after the P took steps to avoid conception, often a negligently performed sterilization procedure.

Wrongful Birth (Parent's claim)

▪ Birth of a child with anomalies, disease, or disability when the physician failed to diagnose issues during the pregnancy.

● P must claim that she would have ended the pregnancy if the physician had not negligently failed to diagnose.

Wrongful Life (Child claim)

▪ Child's claim for having been born with anomalies, disease, or disability because the physician failed to diagnose issues during the pregnancy.

Plaintiffs on Land

Invitees: Enters onto D’s land at D’s express or implied invite and for a purpose relating to D’s interest or activities (ex: shoppers in a store or patrons in museum). D has duty to exercise reasonable care to prevent injuries caused by activities conducted on D’s land.

Licensees (social guests): Enters D’s land with D’s express or implied permission and are not there for a purpose benefiting D or D’s activities, nor is the land held open to the public . D must warn of known concealed dangers (just warn, not cure) that are not obvious.

Trespassers: Enters D’s land without express or implied consent of land possessor. Duty to avoid infliction of willful or wanton harm.

Duties by land possessors

- Activity on the Land: duty of reasonable care to all except unknown trespassers

- ONLY for invitee does LO have a duty to reasonably search out dangers on property.

- ▪ If known or frequent trespassers (must be obvious - e.g. a well-worn path), LO has a duty to warn of known and concealed dangerous artificial conditions.

Child Trespassers (Attractive Nuisance Doctrine) (5 factors)

CHILD TREATED AS AN INVITEE IF:

▪ Too young to appreciate the danger;

▪ D knows, or has reason to know, of the trespass;

▪ D knows of the dangerous condition;

▪ Condition is artificial (fountain, pool, equipment that looks fun to climb on); and

▪ The risk of danger of the artificial condition outweighs its utility and burden to fix it.

LL/Tenant Liability

Not liable unless

-common areas where LL has control

- Negligent repairs

- knows of concealed danger at time of lease

- LL=knows that T is going to hold property open to public

Standard of Care

WHAT MEASURE OF DUTY IS OWED?

What would Reasonably prudent person do under the same or similar circumstances?

-Physical conditions count and you will be held to standard of similar people

if a person has knowledge, skill, or even intelligence superior to that of the ordinary person, the law will demand of that person conduct consistent with it.

Emergencies not of D's own making. Jury can consider emergency to determine if D acted reasonably under circumstances

Breach: Failure to act as a RPP

▪ What is the probability of harm occurring from D's conduct?

▪ What is the likely magnitude of the harm going to be?

▪ What is the burden on D to avoid the harm?

Children Standards

Majority rule: Minor D’s conduct is assessed according to what a reasonable child of the same age, experience, education, and intelligence as D would have done.

▪ Exception: Children engaging in adult, inherently dangerous activities are held to an adult standard of care (ex: driving).

Statutory negligence

Statutes that provide civil liability supersede common law of torts

negligence per se

● Where D’s conduct also violates a statute that does not provide for civil liability (criminal statute), that statute can establish the standard of conduct for breach of duty purposes (ex: criminal traffic law).

▪ P is member of a class the law is designed to protect; and

▪ Injury caused by D’s conduct is the type the statute sought to protect

▪ Violation is not excused

- Excused if: (a) an emergency not of D's own making; or (b) when it's more dangerous to comply with the law.

Licensing statute exception

Not having a license does not create liability

Professional standard of care

Custom establishes standard of care for professionals.

Medical Malpractice: o : Physicians are required to possess and use the knowledge, skill, and training of other physicians in good standing in the relevant geographic community.

▪ Specialists = national standard.

▪ General practitioners = locality standard.

Lawyers, Architects, Accountants: So long as the professional complies with custom, the professional cannot be found to have breached their duty - deviation from custom means breach of that duty.

Lack of informed consent

▪ Traditional (negligence): Physician must divulge risks that are customarily divulged by a physician in the same set of circumstances (professional rule).

▪ New Trend – Standard of Materiality: Physician must divulge all material risks, meaning risks that a reasonable patient would want to know in deciding whether to undergo the procedure or treatment (patient rule).

● Failure to divulge material risk is malpractice if P can show she would have refused the procedure if the physician divulged the risk.

Breach

● P’s burden is to prove every element of the prima facie case (preponderance of evidence).

● Two types of evidence to show breach of duty:

o Direct Evidence (rare): An eyewitness or a recording of the accident while occurring.

o Circumstantial: Evidence from which one can draw reasonable inference.

Slip and Fall Breach of a Duty (3)

- D was negligent for not discovering and

- Repairing the dangerous condition

- Dangerous condition present long enough that D should have noticed it

Res Ipsa Loquitur (the thing speaks for itself)

Allows jury to infer D’s breach based on the nature of the accident and D’s relationship to it.

● P needs to show:

o This sort of accident does not normally occur absent negligence;

o D is probably the responsible party because D had control over instrumentality of the harm; and

o P did not contribute to the injury.

Cause in Fact

Connects breach to injury. But for Defendant's negligence, Plaintiff would not have been injured

Substantial factor test

When 2 Ds cause harm, but each alone would have been enough to cause the entire harm. In this case, each D is a cause-in-fact if each was a substantial factor in causing the harm.

ASSUME JOINT AND SEVERAL LIABILITY

- P can sue one or both and collect entire amount from one

- D found liable can seek contribution from the other D.

Loss of Chance

o (Typically medical malpractice situations). This is not a majority rule.

▪ P must show that but for the medical malpractice, P would not have lost chance/died.

▪ Many jurisdictions now recharacterize injury in these cases as the loss of a chance and reduce damages, but do not extinguish them.

Alternative Theory Liability

▪ When to apply:

● All Ds are tortious/negligent;

● All Ds are being sued together (can't use if one D is left out); and

● Small number of Ds.

▪ Burden shifts to Ds to show that they were not the cause. If Ds cannot do so, they will be jointly/severally liable.

Market Share Liability (3)

● Generic product -

- P cannot show which of a large group of negligent Ds responsible for manufacturing the product that caused her harm.

- P can sue those who might have caused her harm and

- Each D is responsible based on its share of the market.

proximate cause

Are there policy reasons to cut off liability?

● Unforeseeable Extent of Harm: Does not matter that P suffered more harm than one would foresee. D is responsible for full the extent of harm, as long as the type of harm is foreseeable.

o Eggshell Skull Rule: Take your victims as you find them. It does not matter if P is susceptible to greater harm because of a unique susceptibility, like an eggshell skull.

● Unforeseeable Type of Harm: Was the injury suffered within the risk created by D’s negligent conduct?

● Unforeseeable Manner of Harm

o Superseding Cause: Unforeseeable, intervening cause that breaks the chain of causation between the initial wrongful act and the ultimate injury. A superseding cause relieves the original tortfeasor of liability for lack of proximate cause.

o The more culpable the intervening force, the more likely it supersedes. Typically, criminal conduct will be a superseding cause, but not if the criminal conduct is foreseeable.

Damages

● P must prove damages, meaning that there must be a clearly identifiable injury.

o Personal injury and property damages are recoverable.

o Nominal damages are not available.

o Punitive damages are not available for just negligence.

Compensatory Damages

Return P to pre-injury position

▪ Type of damage must be foreseeable (not the extent, but the type of damage);

▪ Must be reasonably certain (not speculative); and

▪ Unavoidable.

Special damages

▪ Pecuniary medical costs, lost wages, and cost of repair.

● Can recover past, present, and future damages; however, future damages will be reduced to present value.

General Damages

▪ More controversial because these damages are intangible and difficult to measure.

Pain and Suffering

Punitive damages

Never for just negligence

- Acts must be: willful, malicious, or reckless.

o Goal is to make an example of D so he and others will not engage in the same behavior.

o Wealth of D is highly relevant here.

Defenses to negligence

Contributory Negligence

Comparative Fault

According to a Custom: The trier of fact may find either that the customary manner of behavior was not reasonable under the circumstances or that a reasonable person would not have engaged in customary behavior.

Contributory Negligence

Any fault by plaintiff bars recovery

Exceptions:

- intentional tort

- recklessness

- strict liability

Last clear chance doctrine

Generally the wrong answer.

Only applies in context of contributory Negligence

● If D's negligence occurs after P's negligence, so that D had the last opportunity to avoid the harm, then P is entitled to full recovery.

Comparative fault

Assume pure comparative fault where joint and several liability applies unless told otherwise

▪ P can recover no matter how much P is at fault. Recovery is the amount of damages minus the percentage that P is at fault.

▪ Modified Comparative Fault: P is barred from recovery if P is as much at fault or more at fault than D.

Assumption of Risk (3)

o P, orally or in writing, relieves D of responsibility to be non-negligent.

- (1) the plaintiff is aware of its terms;

- (2) the injury which occurs is within the risks of which the plaintiff agreed to relieve the defendant; and

- (3) the disclaimer is not contrary to public policy

- actually involuntary because the service is a critical need and the plaintiff has no other effective option.

AR IS NOT ALLOWED FOR NECESSITIES: if a LL rents an apartment or a hospital provides care.

Implied assumption of risk

o Recovery will be barred or reduced if D establishes that P:

▪ Knew of and appreciated the nature of the risk;

▪ Appreciated the specific danger that injured P; and

▪ Voluntarily chose to subject himself/herself to that danger.

Firefighter Rule

o Where P is a professional rescuer and is injured due to an inherent risk of that job, P cannot recover in negligence against the person who created the need for rescue.

Primary Assumption of Risk

▪ In certain contexts, there is no duty to be non-negligent. Often arises in the context of sporting events.

Strict Liability

D is liable for injuring P regardless of whether D exercised due care. P does not have to show proof of fault.

Possession of Animals & Strict Liability

o Wild Animal Rule: If D keeps a wild animal and P gets injured because it does something characteristic of that animal, keeper is strictly liable no matter how unforeseeable the harm.

o Domestic Pet Rule: “Every dog gets one free bite.” Not liable unless D is on notice of danger.

Abnormally Dangerous Activities (3)

o An activity is abnormally dangerous when:

▪ High risk of serious harm to others;

▪ D cannot engage in the activity without risk, and cannot eliminate the risk with care; and

▪ It is not a commonly undertaken activity in the community.

o P can recover absent proof of fault as long as D was involved and the activity caused the harm.

o Proximate Cause: P must be injured by the risk that makes the activity dangerous.

Contributory negligence and strict liability

o Contributory Negligence: D generally cannot raise this defense with strict liability.

o Exception: P knew of the danger that justified imposition of strict liability, and his action caused exactly that danger to manifest. Here, P could be said to have assumed the risk, and P is completely barred from recovery.

Strict Products Liability

Focus on the condition of the product, not on D’s conduct.

● Proper P: Any P who is a user, consumer, or bystander physically injured by a defective product.

No requirement of contract privity.

● Proper D: Commercial suppliers at all levels of the distribution chain and those in the market of selling the product – manufacturer, wholesaler, and retailer. Does not include occasional sellers and those supplying services.

● Proper Context for Products Liability: Generally services alone are not enough. When both a product and services are present, the goods/product must dominate.

Defect: Almost all jurisdictions impose strict liability where the product is in an unreasonably dangerous defective condition

Types of Defects

o Manufacturing Defect: Manufactured in a form other than intended by manufacturer. P must show:

▪ Product is in a condition not intended by manufacturer and defect existed when leaving manufacturer’s hands.

o Design Defect: Made as intended by manufacturer but still presents a danger of personal injury or property damage to P because of a flawed design. Two tests:

▪ Ordinary Consumer Expectation Test: Product is more dangerous than would be contemplated by the ordinary consumer who possesses ordinary knowledge common to the community.

▪ Risk-Utility Balancing Test: Jury determines whether the danger the design threatens (cost in human injury and property damage), outweighs its utility to society. Product will be found defective if an alternative design could have reduced the danger at about the same cost.

o Warnings: P is Asserting a Warning is Inadequate: The test here is reasonableness. Does the warning reasonably inform a reader of the risks of the product and how to reduce them? Look at language, placement, size of font, and clarity.

▪ P is Asserting There is no Warning: A manufacturer has to warn about risks of which it knows or should know. Consider the gravity and probability of harm.

Strict Products Liability Elements

● Cause-in-Fact: Usually proven by showing that the defect that injured P was in existence at the time it left D’s control.

● Proximate Cause: Look for superseding causes which might break the chain of causation. For instance, did P use/alter the product in an unforeseeable way?

o Learned Intermediary Doctrine: If a manufacturer provides a warning to a doctor, the manufacturer can expect that the doctor will pass the warning on to the patient. If the doctor does not, the doctor is a superseding cause of the patient’s harm.

● Damages: Recoverable when there is personal injury or property damage other than to the product itself.

o Where the harm is only to the product itself, the only claim is breach of warranty.

o Consequential/subsequent economic losses are not enough.

Defenses to Strict Liability

o Misuse: P’s use of the product is neither intended nor foreseeable. D may still be held liable for foreseeable misuse.

o Alteration: Employer removes safety devices to increase efficiency.

▪ Alteration or modification must occur between the time the product leaves the manufacturer’s control and the time of P’s injury.

o Assumption of the Risk: Where P has used the product with knowledge of the risk.

Products Liability and Negligence

● Any foreseeable P can bring an action.

● Analyze the conduct of each D and ask whether D acted reasonably. (This is different from strict products liability, which focuses on the product, not the actions of the D.)

● Res Ipsa Loquitur takes the place of manufacturing defect in negligence theory.

All negligence defenses apply

Products Liability and Warranty (two types)

● Express Warranty: Exists where D makes a specific representation as to the quality/nature of the product that becomes a basis of the bargain.

o Any seller can make this warranty (manufacturer, distributor, seller).

o Can occur via advertising, during negotiations, or as a contract provision.

● Implied Warranty/Warranty of Merchantability: Where a merchant deals in goods of a particular kind, the sale of such goods constitutes an implied warranty that those goods will be merchantable (i.e. the goods are of average quality for goods of that kind and are generally fit for the purpose for which such goods are normally used).

o Warranty of merchantability = fit for intended use.

▪ Requirements of privity and notice.

▪ Can be disclaimed by contract.

● Where harm is to the product itself, the only claim a P can pursue is for warranty.

Public Nuisance

Public Nuisance: An unreasonable interference with a right common to the general public (e.g. health, safety, and morals of community).

● Typically brought by a government actor such as an attorney general.

● To recover damages as an individual, one must have suffered harm different from that suffered by other members of the public.

Private Nuisance (5 factors)

A thing or activity that substantially and unreasonably interferes with P’s use and enjoyment of P’s land.

● Mental State: Usually intentional, because once D is placed on notice that D is interfering, and D still does not stop.

● Five factors for balancing substantial/unreasonable interference:

o Value of D’s activity;

o Whether there are alternatives;

o Nature of locality;

o Extent of P’s injury; and

o Who was there first? (used to be a defense now just a factor)

REMEDY= INJUNCTION

Defamation Elements

● Defamatory Message: Subjects P to scorn, ridicule, or deters others from dealing with P causing reputational harm (Ex: accusing of heinous crime).

o Must be one that can be believed as truthful and reputation harming.

o Hyperbole and opinion are not defamatory.

● Publication: Someone other than P read, saw, or heard the defamation.

o P must show D either intentionally published the information or was negligent in publishing the information.

o Republication Rule: In addition to D, who originates the defamatory message, other persons who repeat the defamatory message are potentially liable as well.

Types of Defamation

o Libel: Defamatory message embodied in any relative permanent form. Reputational harm is presumed, but the damages have to be proven.

o Slander: Defamation in spoken rather than written in form.

▪ To recover, P must prove special damages (specific economic losses that flow from the slander). P can also receive reputational damages.

Slander Per Se

● Slander which imputes to P behavior or characteristics that are incompatible with the proper conduct of P's business, profession, or office.

● Slander that imputes to P commission of a crime involving moral turpitude or infamous punishment (prison/death).

● Allegations that P has some loathsome disease.

● Falsely imputing lack of chastity to a woman.

Privileges against defamation

o Truth: P must prove falsity as part of P’s prima facie case.

▪ Exception: P is a private, not public figure, and the matter is a private concern.

o Absolute Privilege: D may not be held liable for an otherwise defamatory message as a matter of law. No matter how bad the D is. Blanket protection.

●Communications between spouses.

● Statements made on the floor of the legislature.

●Communications between high ranking executive officials.

● Statements made in conduct of judicial proceedings.

Qualified/Conditional Privilege

● Comments are made in a communication that appears reasonably necessary to protect or advance the D’s own legitimate interests;

● Comments were communicated on a matter of interest to the recipient of the communication or a third person; or

● Comments were communicated concerning a matter of public interest to one empowered to protect that interest.

Constitutional Issues with Defamation (Public official, Public figure, Private figure)

public official: you must prove actual malice by clear and convincing evidence (i.e. D knew it was false or recklessly disregarded the truth or falsity.)

Public Figure: Treated just like public official, same standard of clear and convincing evidence.

▪ All-purpose public figures: household names, e.g. Madonna.

▪ Limited public figures: People who inject themselves into a controversy.

Private Figure: Look at subject matter and determine whether it is of public or private concern. Consider form, content, and context.

▪ Public Concern: If the subject matter of the defamation is a matter of public concern, D must be shown to have exhibited some degree of fault higher than strict liability, which presumably means negligence.

▪ Private Concern: P does not have to prove actual malice to get presumed or punitive damages (note - not settled; not tested).

Intrusion into seclusion (invasion of privacy)

● Intrusion into Seclusion: D unreasonably intrudes into P’s seclusion (zone of privacy).

o Intrusion must be highly objectionable to a reasonable person (e.g. wiretapping, stalking).

o Damages include compensatory damages (e.g. mental distress) and if bad enough, punitive damages.

Commercial Appropriation of Likeness or Identity

● Unauthorized use of P's name, voice, or likeness for D's commercial advantage. Newsworthy purpose of P's likeness or identity is exempt.

Public Disclosure of Private True Facts

o Disclosure + of private facts + disclosure is highly offensive to reasonable person + not newsworthy.

o Look for passage of time - 20 years pass and less relevant.

o Need some sort of publication/dissemination of information.

o Injunction is possible because the information is true (unlike defamation).

o If D gets information from public records, D cannot be liable for sharing that information.

Portrayal in False Light

● D publishes matters portraying P in a false light. Looks like defamation but not quite, like saying someone has cancer or is poor. P must show:

o Publication;

o False information;

o Divulging of information is highly offensive to reasonable person; and

o Some level of fault (parallel to defamation rules - actual malice, etc.).

Wrongful Institution of Legal Proceedings

● Malicious Prosecution: Criminal proceedings instituted by D for an improper purpose and without probable cause, that terminate favorably for P and cause P damages. P must prevail on the merits.

● Wrongful Institution of Civil Proceedings: Similar to malicious prosecution.

● Abuse of Process: Exists where D intentionally misuses a judicial process (civil or criminal) for a purpose other than that for which it was intended. Also similar to malicious prosecution.

Economic Torts

Intentional Misrepresentation

▪ Intentional material misrepresentation by D;

▪ Of past or present fact;

▪ Made with knowledge; and

▪ On which the P justifiably relies to P’s economic detriment.

o Failure to disclose is not enough unless:

▪ Fiduciary relationship;

▪ Ambiguous/ misleading statement causes reliance;

▪ D makes an assertion, believing it is true, but then discovers it was false (or circumstances changed) and D fails to disclose;

▪ False assertion not intending reliance but discovers P relied; or

▪ P reasonably expects there would be disclosure.

o Mental state (key): D must intend P (or class of persons which P belongs) to rely (will act or fail to act in reliance on D’s misrepresentation).

Negligent Misrepresentation

o Rule: D has no duty to avoid negligent infliction of pure economic loss.

o Exception 1: When there is a special relationship, like a fiduciary duty, or if D knows that they are acting for the benefit of a third party, and they rely and suffer economic loss.

o Exception 2: If D knows that they are acting for the benefit of a third party and the third party relies and suffers economic loss.

Interference with contractual relations

o D knew that there is a contract between P and a third party; and

o D acted with the purpose of having the contract breached or making it harder to perform.

Interference with prospective economic advantage

● Interference with Prospective Economic Advantage: Protects “expectancy” interests of future contract relations of a party. P can prevail only by showing that D:

o Knew of prospective economic advantage; and

o Acted to interfere with it for improper motives.

▪ D can act to protect their own competitive interests.

injurious falsehood (economic loss)

o False statement;

o Actual malice or D knew statement was false or recklessly disregarded veracity;

o Made to another or published; and

o Causing specific economic injury to P.

Vicarious Liability

● Respondeat Superior: Employer is liable for injuries caused by the negligence or strict liability of the employee if it occurred within the scope of employment.

o Employer can be directly liable if negligent hiring.

o Intentional torts by employees are generally outside the scope of employment, except when the employee uses force to further the employer’s purposes(can be imputed to third party)

● Independent Contractor (IC): D is not liable for torts committed by ICs because D has no right to control the performance of the ICs.

o Employee vs. IC status depends on whether the employer who hired dictates the means, method, and manner of the ICs work. The more control exercised, the more likely the person is an employee and not an IC.

● Parent/Child: Parents are not generally vicariously liable for torts of the child absent a statute saying otherwise. Parents can be liable for their own negligence, negligent supervision, or entrustment.

Survival Statutes

● Survival Statutes (modern): Death of the victim or tortfeasor no longer abates tort action and a claim can be brought by estate of decedent.

Wrongful Death Statutes

● Wrongful Death Statutes: All jurisdictions statutorily provide for an action by which either heirs of a deceased victim or personal representative of victim’s estate may bring action for wrongful death for their own losses resulting from victim’s death (e.g. wages the victim might have earned over their lifetime, damages such as the victim’s medical expenses).

Loss of Consortium

● Loss of Consortium: Where a spouse is killed, the surviving spouse may bring a claim for intangible injuries of loss, comfort, companionship, etc.

Collateral Source Rule

A legal doctrine that provides that the damages owed to a victim should not be reduced because the victim is entitled to recover money from other sources, such as an insurance policy.