Emanuel CrunchTime: Torts Fifth Edition Study Notes
Emanuel CrunchTime: Torts Fifth Edition Study Notes
Introduction to Torts
Definition of Tort:
A civil wrong committed by one person against another.
Torts typically arise outside of any pre-existing agreement between parties.
Categories of Torts:
Intentional Torts: Defendant desires to bring about a particular result.
Battery
Assault
False Imprisonment
Infliction of Emotional Distress
Negligence: Defendant has not intended a specific result, but has behaved carelessly.
No individually-named torts; relies on the general concept of "negligence".
Strict Liability: Defendant is liable even without intent for the undesirable result and despite exercising utmost carefulness.
Abnormally Dangerous Activities: e.g., blasting.
Defective Products: Causing personal injury or property damage.
Significance of Tort Categories:
Scope of Liability: More culpable conduct (intentional torts) leads to wider liability for unexpected consequences than negligent or strictly liable conduct.
Damages: Generally broader for more culpable categories, with punitive damages more likely for intentional tortfeasors.
Intentional Torts Against the Person: "Intent" Defined
Meaning of Intent: Differs for each intentional tort; generally involves desiring to bring about some physical or mental effect on another person.
No Intent to Harm Required: Intent is often met even if the defendant did not desire to physically harm the plaintiff. Example: Practical joke causing apprehension of harm still counts as intent for assault.
Substantial Certainty: If the defendant knows with "substantial certainty" that a particular effect will occur from their action, they are deemed to have intended that result. (Distinguishes from "highly likely").
Act vs. Consequences: The act must be intentional or substantially certain, but the specific consequences (e.g., a broken jaw from a light tap) need not be intended.
Transferred Intent: If a defendant has the necessary intent regarding person A, they are liable for an intentional tort against any other person B who is accidentally injured. Example: Shooting at A and hitting B makes defendant liable to B for battery.
Battery
Definition: Intentional infliction of a harmful or offensive bodily contact.
Intent: Satisfied if:
Defendant intended to cause a harmful or offensive bodily contact.
Defendant intended to cause an imminent apprehension on plaintiff's part of a harmful or offensive bodily contact (intent to commit an assault suffices).
Harmful or Offensive Contact:
"Harmful" contact: Causes pain or bodily damage.
"Offensive" contact: Damaging to a "reasonable sense of dignity." (Objectively judged; e.g., spitting on someone).
Plaintiff's Awareness: Not necessary for plaintiff to be aware of the contact at the time it occurs (e.g., kissing a sleeping person).
Contact Beyond Consented Level: Battery can occur if defendant exceeds the scope of actual consent (e.g., a surgeon operating on an unconsented body part, or excessive force in a sporting event).
Assault
Definition: Intentional causing of an apprehension of harmful or offensive contact.
Intent: Satisfied if:
Defendant intends to put plaintiff in imminent apprehension of contact (even without intending to follow through).
Defendant intends to cause a harmful or offensive bodily contact (intent to commit a battery).
No Hostility Required: Malice or intent to harm is not necessary (e.g., a practical joke involving a toy pistol).
"Words Alone" Rule: Generally, words alone are insufficient; usually requires some overt act or gesture by defendant.
Special Circumstances: Surrounding circumstances or defendant's past acts may make words alone sufficient for reasonable apprehension.
Actual Contact or Apprehension Required: Plaintiff must actually experience harmful/offensive contact or apprehension of such contact.
Unsuccessful Prank/Bluff: No assault if plaintiff knows or believes no imminent contact will occur.
Imminence: Threatened harm must appear imminent, and defendant must have the present ability to carry out the threat (e.g., not leaving to get a weapon).
Plaintiff Unaware of Danger: Plaintiff must be aware of the threatened contact.
Threat to Third Persons: Plaintiff may only recover for apprehension of contact to their own body, not to a third person.
Conditional Threat: Assault depends on whether defendant had a legal right to compel plaintiff to perform the demanded act. Example: Threatening a burglar to leave is not assault.
False Imprisonment
Definition: Intentional infliction of confinement.
Intent: Plaintiff must show defendant intended confinement or knew with substantial certainty it would occur; cannot be committed by merely negligent or reckless acts.
"Confinement": Plaintiff is held within specific limits; merely preventing entry to a place is not confinement.
Means Used: Can be direct physical means, threats of force, or assertion of legal authority.
Threats: Explicit or implicit threats of force if plaintiff tries to escape suffice.
Assertion of Legal Authority: Confinement can be by defendant's assertion of legal authority, even if without actual authority, if plaintiff reasonably believes or doubts defendant's authority.
Plaintiff's Awareness: Plaintiff must either be aware of the confinement or suffer actual harm as a result.
Intentional Infliction of Emotional Distress (IIED)
Definition: Intentional or reckless infliction, by extreme and outrageous conduct, of severe emotional or mental distress, even without physical harm.
Intent: Broader than other intentional torts; includes:
Desire to cause emotional distress.
Knowledge with substantial certainty that emotional distress will occur.
Reckless disregard of a high probability that emotional distress will occur.
Transferred Intent (Limited): Applied if defendant's conduct is directed at an immediate family member of plaintiff, plaintiff is present, and defendant knows of plaintiff's presence.
"Extreme and Outrageous" Conduct: Must be "beyond all possible bounds of decency" (e.g., practical joke about a spouse's severe injury).
Bill Collectors: Common context where conduct may be sufficiently outrageous.
Actual Severe Distress: Plaintiff must suffer severe emotional distress, typically requiring seeking medical aid; physical harm not always required.
Constitutional Limits on IIED Awards: First Amendment may limit liability for IIED based on speech.
Public Figures: Must show defendant knew speech was false or recklessly disregarded its falsity (actual malice standard, per Hustler Magazine v. Falwell).
Matters of Public Concern: If distress stems from communicative impact of speech on a matter of public concern, recovery may violate First Amendment rights (Snyder v. Phelps).
Intentional Interference with Property
Trespass to Land
Definition: Defendant intentionally enters plaintiff's land without permission; or remains on land without right, or puts an object on (or refuses to remove from) land without permission.
Intent: Requires intent to commit a physical contact with plaintiff's land; mistake about legal title or consent is not a defense, even if reasonable.
Negligent Entry: Generally treated as negligence, not trespass.
Particles and Gases: Knowingly causing objects, particles, or gases to enter plaintiff's property is usually trespass (Martin v. Reynolds Metals Co.).
Airspace: Can be trespass if a plane flies into immediate reaches of airspace (below federal minimums) and substantially interferes with plaintiff's use and enjoyment.
Trespass to Chattels
Definition: Any intentional interference with a person's use or possession of a chattel; defendant pays damages, not full value.
Loss of Possession: Recovery allowed for any time plaintiff loses possession, even if chattel returned unharmed.
Electronic Trespass on Computer:
No Harm to Computer/Data: Most courts say no trespass to chattels if no physical harm to computer or data occurs.
Harm Done: Trespass to chattels occurs if defendant's conduct harms the computer or data (e.g., spyware).
Conversion
Definition: Intentional interference with plaintiff's possession or ownership of property so substantial that defendant should pay its full value.
Intent: Requires intent to take possession; mistake as to ownership is generally not a defense.
Distinguished from Trespass to Chattels: Factors include duration of dominion, defendant's good/bad faith, harm to property, and inconvenience to plaintiff.
Different Ways to Commit: Acquiring possession, transferring to a third person, withholding goods, or destruction.
Intangibles (e.g., Computer Files): Most courts consider computer files as property for conversion purposes.
Forced Sale: If plaintiff succeeds, defendant pays full value and keeps the goods.
Defenses to Intentional Torts
Consent
Express Consent: Explicit agreement by plaintiff to an interference with person or property makes defendant not liable.
Implied Consent: Inferred from plaintiff's conduct, custom, or circumstances; objective manifestations by plaintiff count.
Lack of Capacity: Consent invalidated if plaintiff is a child, intoxicated, unconscious, etc.
Consent as a Matter of Law: Implied for immediate action to save plaintiff's life/health if no contrary indication and a reasonable person would consent.
Exceeding Scope: Defendant not privileged if action goes substantially beyond consented scope (e.g., unauthorized surgery, exceeding sport's rules).
Emergency: May justify extending surgery beyond consent.
Athlete's Consent: Generally not consent to all injuries; intentional or reckless attacks in sports may lead to tort liability. Rules and customs of the sport are highly relevant.
Consent to Criminal Acts: Courts are split; majority rule is plaintiff's consent is ineffective if the act is a crime.
Self-Defense
Privilege Generally: Entitled to use reasonable force to prevent threatened harmful/offensive bodily contact, confinement, or imprisonment.
Apparent Necessity: Self-defense applies where defendant reasonably believes a threat exists.
Only for Protection: Force is solely to protect against harm, not retaliation for past torts or in response to verbal provocation.
Degree of Force: Only force necessary to prevent harm may be used.
Deadly Force: May only be used if defendant is in danger of death or serious bodily harm.
Retreat: Courts split on duty to retreat; Restatement suggests non-deadly force without retreat, but deadly force requires retreat unless in dwelling from non-resident attacker.
Defense of Others
General Rule: Reasonable force may be used to defend another, with same rules as self-defense.
Reasonable Mistake: Courts split; older courts hold intervener "steps into shoes" of aided person, but Restatement allows a reasonable mistake defense.
Defense of Property
General Rule: Reasonable force may be used to defend property (land and chattels).
Warning Required: Verbal demand required first, unless violence imminent or demand futile.
Mistake: Varies.
Mistake as to Danger: Protected by reasonable mistake.
Privilege: Not privileged if mistake is about intruder's right to be there.
Deadly Force: Only where non-deadly force won't suffice and owner reasonably believes death/serious bodily harm will occur (e.g., against burglars under certain conditions).
Mechanical Devices: Allowed only if similar degree of force would be privileged if owner were present and acting themselves.
Recapture of Chattels
Generally: Property owner has right to use reasonable force to regain possession of chattels wrongfully taken.
Fresh Pursuit: Privilege exists only if owner acts without unreasonable delay.
Reasonable Force: Cannot use deadly force.
Wrongful Taking: Privilege only for wrongfully taken property, not where possession was willingly parted with.
Merchant's Privilege: Many courts allow merchants to temporarily detain suspected shoplifters for investigation (limited time, reasonable suspicion, no "arrest" or coercion).
Necessity
General Rule: Privilege to harm property interest of plaintiff to prevent great harm to third persons or defendant.
Public Necessity: Interference to prevent disaster to community; no compensation required.
Private Necessity: Prevents injury to self, own property, or third person/property if no less-damaging way. Compensation must be paid for actual damage caused. Owner may not resist exercise of this privilege (Ploof v. Putnam).
Arrest
Common Law Rules:
With Warrant: Police officer not liable if warrant appears correctly issued.
Without Warrant:
Felony/Breach of Peace in Presence: Officer/citizen may make warrantless arrest.
Past Felony: Officer may arrest if reasonably believes felony committed and individual is the criminal. Citizen may only arrest if felony in fact committed.
Misdemeanor: No warrantless arrest for past misdemeanor not involving breach of peace.
Reasonable Force: May not use more force than reasonably necessary.
Prevention: Deadly force allowed to prevent felony threatening human life/safety if no other way.
Apprehension After Crime: Deadly force only if suspect poses significant threat of death/serious physical injury to others.
Justification
Generally: Catch-all defense for intentional torts where good reasons for exculpation exist.
Negligence Generally
Components of Tort of Negligence (Prima Facie Case):
Duty: Legal duty to conduct oneself to a certain standard to avoid unreasonable risk.
Failure to Conform: Breach of that standard (carelessness).
Cause in Fact: Defendant's failure of care was the "but for" cause of injury.
Proximate Cause: Sufficiently close causal connection between negligence and harm.
Actual Damage: Plaintiff suffered actual damage (unlike most intentional torts).
Unreasonable Risk: Plaintiff must show defendant's conduct imposed an unreasonable risk of harm.
Not Judged by Results: Conduct viewed at the time it occurred, not with hindsight.
Balancing Test: Risk is unreasonable if its magnitude outweighs utility of the act.
Warnings: Giving warnings can reduce risk, but doesn't immunize if activity is still unreasonably dangerous.
The Reasonable Person:
Objective Standard: Would a "reasonable person of ordinary prudence" in defendant's position act similarly?
Physical and Mental Characteristics: Physical disabilities are considered; ordinary mental characteristics (stupidity, carelessness) are not a defense. Intoxication is no defense. Children are held to reasonable child standard, unless engaging in adult activities.
Custom: Evidence of custom is admissible but not conclusive for showing reasonable care.
Emergencies: Defendant must act as a reasonable person would in the same emergency, with little time for reflection.
Anticipating Conduct of Others: Reasonable person has limited ability to anticipate others' negligence or criminal/intentional tortious acts (unless special relationship or knowledge).
Parental Supervision: Parents have a duty to supervise minor children to prevent harm, leading to direct negligence liability if breached.
Malpractice:
Superior Ability/Knowledge: Defendant must use a higher level of skill/knowledge if possessed.
Professionals: Must act with skill/learning commonly possessed by members of the profession in good standing. No guarantee of successful results. Specialists held to specialty standards. Minimally qualified member standard (not average). Community standards (traditionally), but increasingly national standard.
Informed Consent (Physicians): Duty to disclose material risks of proposed treatment. Failure to do so is negligence (or battery in some older cases).
Automobile Guest Statutes: Minority of states; owner-driver not liable to non-paying passenger unless grossly negligent or reckless.
Violation of Statute (Negligence Per Se):
Doctrine: Unexcused violation of a safety statute, with close application to facts, conclusively establishes negligence. Applies to ordinances/regulations in some states.
Statute Must Apply to Facts: Intended to guard against specific kind of injury and protect plaintiff's class of persons.
Excuse of Violation: Court may excuse violation due to reasonable unawareness of facts, diligent attempt to comply, confusing requirements, or greater risk in compliance.
Contributory Negligence Per Se: Defendant may use negligence per se if plaintiff violates a statute.
Compliance Not Dispositive: Full compliance with statutes doesn't by itself prove non-negligence.
Procedure in Jury Trials:
Burden of Proof: Plaintiff bears burden of production (some evidence) and persuasion (more probable than not).
Function of Judge and Jury: Judge decides law (e.g., directed verdicts if no reasonable people could differ). Jury decides facts (e.g., whether defendant met reasonable person standard).
Res Ipsa Loquitur (Creating an Inference of Negligence):
Generally: Allows inference of negligence from accident itself, even without precise showing of conduct.
Requirements:
No direct evidence of defendant's conduct.
Event seldom occurs without negligence.
Negligence most likely by defendant (formerly "exclusive control"). Some cases allow multiple defendants if in integrated relationship (Ybarra v. Spangard).
Not due to plaintiff's own conduct.
(Some courts) Evidence more available to defendant.
Expert Testimony: Allowed in complex or specialized cases (e.g., medical malpractice) to establish requirements.
Effect: Permits inference of negligence, meeting burden of production.
Rebuttal Evidence: General due care evidence rarely enough for directed verdict; disproving a requirement can lead to directed verdict.
Typical Contexts: Airplane accidents, single-car accidents (less often multi-vehicle), surgical mishaps.
Actual and Proximate Cause
Causation in Fact
Generally: Plaintiff must show defendant's conduct was the "cause in fact" of injury.
"But For" Test: Majority method; injury would not have occurred "but for" defendant's negligence.
Joint Tortfeasors: Multiple "but for" causes are possible.
Concurrent Causes: If two events concur, and either sufficient alone, both are cause in fact (using "substantial factor" test) (Kingston v. Chicago & N.W. Ry.).
Multiple Fault: If multiple defendants at fault, but only one could have caused injury, burden shifts to defendants to prove who caused harm (Summers v. Tice).
"Market Share" Theory (Product Liability): If plaintiff cannot prove which of multiple manufacturers caused injury of defective product, each pays percentage based on market share (Sindell v. Abbott Laboratories). Some courts reject exculpation and joint-and-several liability, especially for socially valuable products.
Increased Risk (Not Yet Actual Damage): Most courts deny recovery for future damage unless more likely than not to occur; some allow recovery discounted by likelihood.
"Indeterminate Plaintiff" (Toxic Torts): Sometimes class actions allow recovery for exposure to toxic substances even without proof of specific causation for each plaintiff.
Proximate Cause Generally
General: Defendant's conduct must be the "proximate cause" (legal cause) of injury; a policy determination limiting liability for unforeseeable consequences.
Foreseeability Rule: Defendant generally liable only for reasonably foreseeable consequences (Wagon Mound No. 1).
Third Restatement: Defendant "not liable for harm different from the harms whose risk made the [defendant's] conduct tortious."
Function of Judge and Jury: Judge formulates legal rule and acts as "gatekeeper" (can direct verdict); jury makes factual determination.
Unforeseeable Plaintiff: If defendant's conduct is negligent to X but not P, P generally cannot recover if injured through a fluke (Palsgraf v. Long Island R.R. Co.).
Extensive Consequences from Physical Injuries: If plaintiff suffers any foreseeable impact/injury, defendant is liable for additional unforeseen physical consequences ("egg-shell skull" rule).
General Class of Harm, Not Same Manner: If harm is of the same general sort that made conduct negligent, unusual manner is irrelevant.
Plaintiff Part of Foreseeable Class: Irrelevant that injury to particular plaintiff was not especially foreseeable, as long as plaintiff is a member of a class with general foreseeability of harm (Petition of Kinsman Transit Co.).
Proximate Cause — Intervening Causes
Definition of "Intervening Cause": Force taking effect after defendant's negligence, contributing to injury.
Superseding Cause: Intervening causes preventing defendant's negligence from being proximate cause are "superseding."
Foreseeability Rule: If defendant should have foreseen intervening cause (or similar), or kind of harm was foreseeable, defendant's conduct is still proximate cause. Otherwise, intervening cause is superseding.
Foreseeable Intervening Causes: If risk of intervening cause is the very risk that made conduct negligent, it will almost never relieve liability.
Foreseeable Negligence: Third-person negligence may be foreseeable and not superseding.
Criminal/Intentionally Tortious Conduct: Can be foreseeable, but more likely to be superseding than mere negligence.
Responses to Defendant's Actions: "Normal" responses are generally not superseding.
Escape: Attempted escape is not superseding unless completely irrational.
Rescue: Rescue attempts are normally not intervening causes, unless grossly careless.
Aggravation of Injury by Medical Treatment: Defendant liable for negligence in treatment, infection, etc., unless treatment is grossly bizarre.
Unforeseeable Intervention, Foreseeable Result: Usually not superseding if leads to same type of harm as threatened by negligence (Gibson v. Garcia).
Unforeseeable Intervention, Unforeseeable Results: Probably superseding if not foreseeable/normal and produces results not of same general nature as threatened by negligence.
Dependent vs. Independent Intervention: Dependent interventions (in response to negligence) are generally more foreseeable and less likely to be superseding.
Third Person's Failure to Discover: Almost never superseding. If third person does discover and willfully/negligently fails to warn, defendant may escape liability if reasonable steps taken to remedy danger.
Joint Tortfeasors
Joint Liability
Joint-and-Several Liability: If multiple proximate causes and harm is indivisible, each defendant liable for entire harm.
Modern Trend: Cutting back or eliminating joint-and-several liability (especially with comparative negligence).
Hybrids: Schemes combining aspects of joint-and-several and pure several liability.
Pure Several Liability: Defendant liable only for their share of total responsibility.
Indivisible vs. Divisible Harms: Joint-and-several liability applies only if harm is "indivisible" (e.g., death, single injury, fires). If divisible, each defendant only liable for attributable harm.
Action in Concert: No apportionment if defendants act in concert.
Successive Injuries: Often apportioned, but burden of allocation usually on defendants if plaintiff lacks proof.
One Satisfaction Only: Plaintiff only entitled to one total recovery, even if multiple defendants are jointly and severally liable.
Contribution
Generally: If two jointly and severally liable defendants, and one pays more than pro rata share, may get partial reimbursement from other.
Amount: Traditionally equal share; in comparative negligence states, proportional to fault.
Limits: No contribution for intentional tortfeasors. Contribution defendant must have underlying liability to original plaintiff.
Settlements: Settling defendant may get contribution (must prove co-defendant's liability). Courts split on non-settlers' right to contribution from settlers (traditional rule vs. reduction of plaintiff's claim).
Indemnity
Definition: Complete shifting of liability from one defendant to another (100% reimbursement).
Sample Situations: Vicarious liability (employee indemnifies employer); retailer indemnified by manufacturer in strict products liability.
Duty
Concept: General "duty of care" (reasonable person standard) owed to others in contact. Exceptions exist.
Failure to Act
No General Duty to Act: No tort liability solely for failure to act (e.g., refusing to assist a stranger in danger).
Exceptions:
Special Relationship: Duty to assist may arise from specific relationships (e.g., common carrier-passenger, innkeeper-guest, employer-employee, school-student, landlord-tenant, custodian-custody).
Defendant Involved in Injury: Duty to assist if defendant's own conduct (even without fault) or instrument under control caused danger.
Defendant and Victim as Co-Venturers: Duty of warning and assistance in common pursuits.
Assumption of Duty: Once defendant voluntarily begins assistance, must proceed with reasonable care. Especially liable if dissuades others from helping. Mere promise may suffice if plaintiff relies detrimentally.
Duty to Control Others: Liability for failing to exercise control if special relationship with plaintiff or third person.
Mental Suffering
Pure Mental Suffering (Without Physical Impact or Injury): Not necessarily barred from recovery.
Categories of Scenarios:
"Tacked On" to Physical Injury: If physical injury/property damage occurs, mental distress naturally flowing from it is recoverable ("parasitic" damages).
Unaccompanied by Fear of Impact on Anyone: Generally no recovery if plaintiff witnesses accident from safe distance and never fears impact to self or others.
Plaintiff within "Zone of Danger" (Self-Distress): Most courts allow recovery for emotional distress if plaintiff was in danger of immediate bodily harm and escaped.
Plaintiff a "Bystander" (Close Relative Injured): Most courts allow recovery if plaintiff perceives a sudden serious bodily injury to a close family member contemporaneously.
Plaintiff a "Bystander" (Non-Close Relative Injured): Few if any courts allow recovery for mental distress.
Special Relationship/Activity: Few specific situations (e.g., mishandling of bodies, negligent telegrams announcing death) allow recovery for pure emotional harm due to high risk and limited affected plaintiffs.
The "At-Risk Plaintiff" (Cancerphobia): Plaintiffs rarely succeed for pure cancerphobia without bodily harm. Most courts require actual exposure to substance, some require showing illness is more likely than not to occur, and some require danger of "immediate" bodily harm. If accompanying physical harm, distress is compensable.
Unborn Children
Modern View: Most courts allow recovery for pre-natal injuries if child born alive. Split on whether suit for child not born alive (depends if fetus is a "person" under wrongful death statute).
Pre-Conception Injuries: Courts split on recovery if injury occurred before conception but affects later-conceived child.
Wrongful Life: Almost no courts allow child to recover for "wrongful life"; parents may recover for medical expenses/distress.
Pure Economic Loss
The Problem Generally: If defendant's negligence causes physical injury/property damage to A, but only economic loss to B, can B recover? Traditional answer is "no," with exceptions.
Tacking On to Other Harm: If plaintiff suffers both personal injury and economic loss, economic loss is recoverable. Same for property damage.
Standard Rule Disallows Pure Economic Losses: Nearly all courts deny recovery for purely economic losses not accompanied by other tangible harm.
Rationales: Indeterminate and disproportionate liability, ability of claimants to protect themselves (e.g., insurance).
Contexts Where Rule Applied: Blocking of highways, toxic torts affecting land/water without direct impact, tort against employee/employer causing economic loss to the other, interruption to power/supplies.
Situations That Are Exceptions or Fall Outside of the Rule:
Proprietary Interest: Plaintiff can recover if they have a "proprietary interest" in property physically damaged by defendant's negligence (e.g., owner/possessor, or one with control/maintenance responsibility).
Public Nuisance with Special Harm: Recovery allowed if defendant creates a public nuisance and plaintiff suffers economic harm "distinct in kind" from that of the general community. Commercial fishers often a special case. (532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc.)
Some Courts Reject Basic Rule: A few courts have rejected the no-recovery-for-pure-economic-loss rule, but still often require plaintiff to be part of a small "identifiable class" (People Express Airlines, Inc. v. Consolidated Rail Corp.).
Special Statutes: Judge-made rule can be overturned by legislature (e.g., federal Oil Pollution Act of 1990 for oil spills).
Owners and Occupiers of Land
Outside the Premises
Effect Outside: General "reasonable care" standard applies to landowner's conduct affecting persons outside property.
Natural Hazards: Generally no duty to remove/guard against naturally existing hazards, but increasingly less so in urban areas.
Artificial Hazards: General duty to prevent unreasonable risk of harm to persons outside premises.
Trespassers
General Rule: Landowner owes no duty to trespasser to make land safe, warn of dangers, avoid dangerous activities, or protect.
Exceptions:
Constant Trespass on Limited Area: If owner knows of frequent use by trespassers, must use reasonable care to make premises safe or warn of dangers.
Discovered Trespassers: Once owner knows of particular trespasser, duty to exercise reasonable care for safety.
Children (Attractive Nuisance Doctrine): Owner owes reasonable care if: knows children likely to trespass, condition poses unreasonable risk of serious injury/death to children, child doesn't realize danger due to youth, utility of maintaining condition outweighs risk, and owner fails to use reasonable care to eliminate danger. Applies generally to artificial conditions.
Licensees
Definition: Person with owner's consent, but no business purpose (e.g., social guests).
Duty to Licensees: No duty to inspect for unknown dangers. Must warn of known dangerous conditions that licensee is unlikely to discover.
Invitees
Duty to Invitee: Duty of reasonable inspection for hidden dangers and to take affirmative action to remedy dangerous conditions.
Definition: Invited for business with owner, or as member of public for purposes land is open to public.
"Open to the Public": Covers those entering for public purposes, even without economic benefit to owner.
Scope of Invitation: Becomes licensee if use of premises exceeds invitation scope (Whelan v. Van Natta).
Duty of Due Care: Duty of reasonable care, including to inspect premises and sometimes remedy dangerous conditions where warning insufficient. May include controlling third persons on premises.
Firefighters and Other Public-Safety Personnel: Common-law "firefighter's rule" treats them as licensees; no duty to inspect/make premises reasonably safe. Some states have limited or eliminated this rule.
Rejection of Categories
Generally: Some courts (e.g., California, New York) have rejected trespasser, licensee, invitee categories, applying a general "reasonable person" standard of liability.
Social Guests: Often treated better under newer rules.
Trespassers: Most states still apply common-law "no duty" rule.
Liability of Lessors and Lessees
Lessee: Treated as owner; all owner liability rules apply.
Lessors: Generally not liable after transferring possession, but exceptions:
Known to Lessor, Unknown to Lessee: Liable for dangers at lease start, if lessor knows/should know and lessee doesn't.
Open to Public: Affirmative duty to inspect and repair dangers before lease if premises held open to public.
Common Areas: Duty of reasonable care to make common areas safe.
Lessor Contracts to Repair: Breach of covenant to repair may give tort claim if landlord fails to use reasonable care.
Negligent Repairs: Liability for unreasonable or unfinished repairs, especially if worsening danger.
General Negligence Standard: Some courts impose general duty of due care on lessors.
Vendors
Vendor's Liability: Generally released from tort liability once property turned over.
Danger to One on Property: Post-closing liability if seller knew/should have known condition was dangerous. Duration depends on active concealment (longer liability) vs. no concealment (liability ends when buyer should have discovered).
Danger to One Outside Property: Similar rules, but longer liability for seller who concealed or created artificial condition. Liability ends when buyer should have discovered otherwise.
Damages
Personal Injury Damages Generally
Actual Injury Required: Negligence actions require actual injury; no nominal damages.
Physical Injury Required: Usually, plaintiff must show physical harm.
Elements of Damages (After Physical Harm): Direct loss of bodily functions, economic loss (medical expenses, lost earnings), pain and suffering, hedonistic damages (loss of enjoyment of life).
Hedonistic Damages: Most courts allow; consciousness of loss may be required.
Future Damages: Recoverable for likely future damages; typically awarded as "present value." Some states allow periodic payments.
Tax: Personal injury recovery/settlement is federally income tax-free.
The Collateral Source Rule: Plaintiff recovers out-of-pocket expenses even if reimbursed by third party (e.g., insurer). Many states have modified this, or allow subrogation.
Mitigation: Plaintiff has a "duty to mitigate"; cannot recover for harm avoidable by reasonable care (e.g., seeking medical attention, using seat belts).
Punitive Damages
Generally: Awarded to penalize outrageous defendant conduct.
Negligence Cases: Usually for "reckless" or "willful and wanton" conduct (e.g., product liability suits with known defects).
Multiple Awards: Possibility of multiple awards considered when fixing amount.
Constitutional Limits: Fourteenth Amendment due process limits awards.
Ratio of Actual to Punitive: High ratios (e.g., significantly exceeding single-digit) likely violate due process (State Farm Mut. Auto. Insur. Co. v. Campbell).
Recovery by Spouse or Children
General Action by Spouse: Most states allow spouse to recover for own injuries (e.g., loss of companionship, sex).
Recovery by Parent: Nearly all jurisdictions allow parent to recover medical expenses for child's injury; also sometimes loss of companionship.
Child's Recovery: Some courts allow child to recover for loss of companionship/guidance if parent injured.
Defenses: Any defense assertable against injured party generally applicable against third-party plaintiff; defenses against third-party plaintiff may also be asserted even if not against victim.
Wrongful Death and Survivor Actions
Distinguished: Survival statutes (victim's right to recovery continues after death); wrongful death statutes (survivors' right to recover for their loss).
Survival Statutes: Estate may sue for damages victim could have (pain/suffering, lost earnings, medical expenses) if death not instantaneous.
Wrongful Death: Allows defined group (spouse, children, parents) to recover for their losses from decedent's death.
Elements of Damages: Economic support, companionship/moral guidance. Some states allow grief recovery.
Defenses: Any defense against decedent applicable against survivors.
Defenses in Negligence Actions
Contributory Negligence
General Rule (Common Law): Plaintiff's negligence contributing proximately to injuries totally bars recovery.
Standard of Care: Plaintiff held to same "reasonable person" standard as defendant.
Proximate Cause: Defense applies only if plaintiff's negligence proximately caused injuries.
Claims Against Which Defense Not Usable: Not for intentional torts; generally not for "willful and wanton" or "reckless" defendant conduct.
Comparative Negligence
Definition: Divides liability proportionally to relative fault; plaintiff's recovery reduced, not barred, by contributory negligence.
Commonly Adopted: Most states have adopted.
"Pure" vs. "50%" Systems: Pure allows recovery even if plaintiff's negligence exceeds defendant's. 50% systems bar plaintiff if negligence is "as great as" or "greater than" defendant's.
Multiple Parties:
All Parties Before Court: Negligence due directly to plaintiff deducted from recovery.
Not All Parties Before Court (Joint-and-Several Liability): Hard questions. Some states abolish joint-and-several liability, others use hybrid approaches.
Last Clear Chance: Courts split on survival in comparative negligence jurisdictions.
Extreme Misconduct by Defendant: Most states reduce plaintiff's damages even if defendant's conduct is "willful and wanton" or "reckless." Not for intentional torts.
Seat Belt Defense: Increasingly accepted; plaintiff's damages reduced for injuries avoidable had seat belt been used. Various approaches.
Imputed Comparative Negligence: Fault of one person (A) imputed to another (B) to reduce B's recovery, only if B would be vicariously liable for A's torts (e.g., employer/employee, not parent/child).
Assumption of Risk
Definition: Plaintiff voluntarily consented to take chances that harm will occur; at common law, completely bars recovery.
Express Assumption: Explicit agreement in advance (e.g., waiver form). Generally enforceable, but exceptions: intentional/reckless harm by defendant, grossly unequal bargaining power (essential service), or overriding public interest.
Implied Assumption of Risk: Plaintiff's conduct implies assumption.
Two Requirements: Plaintiff knew of the risk, and voluntarily consented to bear it.
Knowledge of Risk: Strictly construed; plaintiff must actually know, not just should have known.
Voluntary Assumption: Strictly construed; no assumption if defendant's conduct left no reasonable choice but to encounter danger.
Distinguished from Contributory Negligence: Can overlap. Assumption of risk can occur with reasonable conduct. Defense to reckless conduct.
"Primary" vs. "Secondary" Assumption: Primary (defendant never had duty, e.g., foul balls in baseball). Secondary (defendant had duty, but plaintiff's assumption of risk dissipates it). Comparative negligence statutes typically eliminate secondary as independent defense, merging into comparative fault.
Sports and Recreation: Ordinary carelessness inherent in co-participant sports usually covered by primary assumption of risk; recovery only for intentional or recklessly-inflicted injuries.
Statute of Limitations
Discovery of Injury: May start to run at time of negligent act or when plaintiff discovered/ought to have discovered injury. "Time of discovery" rule common in medical malpractice and some sexual assault cases.
Immunities
Family Immunity: Common law recognizes inter-spousal and parent-child immunity. Many states have abolished or limited this.
Charitable Immunity: Common law immunity for charitable, educational, religious organizations. Over 30 states have abolished.
Governmental Immunity (Sovereign Immunity):
United States: Suits generally allowed under Federal Tort Claims Act (FTCA), but not for discretionary functions.
State Governments: Most have abolished or selectively waived.
Local Government Immunity: Traditionally sovereign immunity; no immunity for "proprietary" functions. Most have abolished general immunity.
Government Officials: Often granted tort immunity for acts within broad scope of duties (e.g., legislators, judges).
Vicarious Liability
Definition: One person becomes liable for acts of another (e.g., employer for employee, sometimes for independent contractor, joint enterprise, auto owner liability).
Employer-Employee Relationship (Respondeat Superior)
Respondeat Superior Doctrine: Employer liable (jointly with employee) if employee commits tort during "scope of his employment."
Applies to All Torts: Including intentional torts and strict liability, if within scope of employment.
Who is an "Employee": Employee works subject to close control over physical details of work; independent contractor hired for result, not under close control.
Scope of Employment: Employee acting with intent to further employer's business purpose, even if means indirect, unwise, or forbidden. Commuting usually not within scope. "Frolic and detour" (short personal trips) may be within scope if deviation is "reasonably foreseeable."
No Release of Employee: Both employer and employee are jointly and severally liable. Employee owes indemnity to employer.
Independent Contractors
No General Liability: Person hiring independent contractor generally not vicariously liable for contractor's torts.
Exceptions (Non-Delegable Duties - Vicarious Liability):
Employer's Own Liability: If employer is negligent in dealing with contractor (e.g., negligent selection).
Non-Delegable Duties: Duties so important that delegator is liable for contractor's negligence even with due care in selection.
"Peculiar Risk" of Harm: Work involves unusual risk unless special precautions taken.
Abnormally Dangerous: Work is ultrahazardous, strict liability if employer did it themselves.
Land Possessor: Employer (as landowner) owes duty of care to public; vicariously liable for contractor's negligence in altering/repairing property if employer would be directly liable.
Public Place: Work done in a public place.
Joint Enterprise
Generally: Each participant potentially vicariously liable for others' negligence if engaged in activity "in concert" for shared aims.
Use in Auto Cases: Driver's negligence imputed to passenger.
Requirements: Agreement (express/implied), common purpose, common pecuniary interest, equal right of control.
Auto Consent Statutes, The "Family Purpose" Doctrine and Bailment
Consent Statutes: Some states make car owner vicariously liable for negligence of anyone using car with owner's permission.
Automobile Insurance Omnibus Clause: Standard policies often cover household members/permitted users, eliminating need for consent statutes.
Judge-Made Doctrines:
Joint Enterprise: Can make vehicle owner vicariously liable.
Family Purpose Doctrine: Car owner who lets household members drive for personal use is vicariously liable.
Bailments: Mere bailment does not make bailor vicariously liable for bailee's negligence. Bailor may have direct liability for negligent entrustment.
Strict Liability
Generally: Liability regardless of intent or negligence. Three major contexts: dangerous animals, abnormally dangerous activities, workers' compensation.
Animals
Trespassing Animals: Owner of livestock/animals liable for property damage if they trespass (strict liability, regardless of care).
Non-Trespass Liability: Strictly liable for non-trespass damage by "dangerous animal."
Wild Animals: Strictly liable for all damage from dangerous propensity typical of species.
Domestic Animals: No strict liability unless owner knows/reason to know of animal's dangerous characteristics.
Abnormally Dangerous Activities
General Rule: Strictly liable for damage occurring during an "abnormally dangerous" activity.
Six Factors: High risk; serious harm likely; risk not eliminable by reasonable care; activity not common; inappropriate location; danger outweighs value to community.
Unavoidable Danger: Most important factor; activity cannot be safely carried out even with reasonable care (e.g., blasting).
Examples: Nuclear reactors, explosives, crop dusting. Not typically airplane accidents (for passengers) or use of firearms.
Limitations on Strict Liability
Scope of Risk: Strict liability only for damage resulting from the kind of risk that made activity abnormally dangerous. Not liable if harm caused by plaintiff's "abnormally sensitive" activity (Foster v. Preston Mill Co.).
Contributory Negligence: Ordinary contributory negligence usually no bar. Voluntary assumption of risk is a defense.
Workers' Compensation
Generally: Statutes compensate employee for on-the-job injuries regardless of employer/employee fault.
No Fault: Employer liable even without fault. Benefits not reduced by employee's contributory negligence.
Arising Out of Employment: Covers injuries arising out of and in course of employment (not purely personal activities).
Exclusive Remedy: WC is employee's sole remedy against employer. No recovery for pain/suffering.
Intentional Wrongs: Employee may pursue common-law action if employer intentionally injured him. Most courts don't consider safety regulation disregard as intentional.
Third Parties: Worker not prevented from suing liable third parties.
Products Liability
Introduction: Seller's liability for injury from defective tangible item. Three theories: negligence, warranty, strict tort liability.
Negligence
Negligence and Privity: Ordinary negligence principles apply. Privity no longer required for negligently manufactured products causing personal injury.
Bystander: Can recover if "foreseeable plaintiff."
Classes of Defendants:
Manufacturers: Most likely negligent (design, manufacture, inspection, packaging, quality components).
Retailers: Less likely liable in negligence; typically no duty to inspect. Usually sued under warranty/strict liability.
Other Suppliers: Bailors, real estate sellers/lessors, product-related service suppliers may be liable in negligence.
Warranty
General: Buyer can sue for breach of warranty if goods not as contracted. Governed by Uniform Commercial Code (UCC).
Express Warranties: Seller explicitly represents goods have certain qualities; breach if qualities absent (Baxter v. Ford Motor Co.).
UCC Section 2-313: Statements of fact/promise, description, sample/model. Usually no privity required.
Strict Liability: Seller's liability for express warranty breach is strict, regardless of belief in truth or ability to know untruth.
Implied Warranty: Warranty of quality implied from goods offered for sale.
Warranty of Merchantability (UCC §2-314(1)): Goods "fit for the ordinary purposes for which such goods are used." Seller must be a "merchant with respect to goods of that kind."
Fitness for Particular Purposes (UCC §2-315): Seller knows buyer wants goods for specific purpose and buyer relies on seller's judgment.
Privity: States largely reject privity for implied warranties; extends beyond immediate purchaser to household members, users, foreseeable bystanders.
Warranty Defenses:
Disclaimers: Seller may disclaim implied/express warranties. Merchantability disclaimer must be conspicuous and specific.
Limitation of Consequential Damages: May be limited, but for consumer goods, limitations for personal injury are unconscionable.
Where Warranty Useful: For pure economic harm or due to statute of limitations differences (warranty usually longer).
Strict Liability
General Rule: Seller of product liable without fault for personal injuries/physical harm caused by product if sold in "defective condition." Applies to all in distributive chain (manufacturer, retailer, wholesaler).
Manufacturing, Design, and Failure-to-Warn Defects: Three types of defects with differing rules.
Manufacturing Defect: Particular product differs from intended design in unintended way.
Design Defect: All similar products share a feature whose design is defective/unreasonably dangerous.
Warning Defect: Lack of warning makes otherwise safe product unsafe.
What Product Meets Test: Product is "defective" if it "departs from its intended design."
Unavoidably Unsafe Products: No strict liability if product is unavoidably unsafe and benefits outweigh dangers (e.g., prescription drugs/vaccines with adequate warnings, yielding net benefit for some).
Unknowable Dangers: No liability if danger from design was "unknowable" at time of manufacture; also no "failure to warn" liability.
Food Products: Most courts use "consumer expectations" test: defective if ingredient not expected by reasonable consumer (some minority views for "natural" items).
Obvious Dangers: Impact varies by defect type.
Manufacturing Defect: Obviousness usually won't block recovery.
Design Defect: Factor in liability, but not automatic bar; cost-benefit analysis of design vs. alternatives still applies.
Failure-to-Warn: Normally prevents failure-to-warn liability.
Proving the Case: Plaintiff must prove: manufactured/sold by defendant, defective, defect caused injuries, and defect existed when product left defendant's hands.
Subsequent Remedial Measures: Most courts don't allow to prove defectiveness.
Toxic Torts: Epidemiological evidence for defectiveness and causation. Courts require proof of "specific causation," inferrable from strong "general causation" proof with actual exposure ("doubling" rule).
Defect Existed in Hands of Defendant: "Res-ipsa-like" inference permitted.
Bystanders and Other Non-User Plaintiffs: Any injured person (family, bystanders, rescuers) may recover; privity not required.
Design Defects
Definition: All similar products share a defective, unreasonably dangerous design feature.
Negligence Predominates: Design defect claims often have negligence aspect; product is defective if foreseeable risks could be reduced by reasonable alternative design (RAD).
Practical Other Design: Plaintiff must show RAD was feasible (cost, utility).
Types of Claims: Structural defects; lack of safety features. "State of the art" defense allowed.
Suitability for Unintended Uses: Defendant may be liable for injuries from foreseeable misuse; no duty for unforeseeable misuse.
Military Products Sold to and Approved by Government: Manufacturer generally immune if government approves specifications (Boyle v. United Technologies Corp.).
Regulatory Compliance Defense: Compliance with federal/state regulations usually not conclusive of non-defectiveness at common law. However, federal preemption can provide a defense if Congress intended to block stricter state rules.
Duty to Warn
Significance: An extra obligation.
No warning cures manufacturing/design defects. Duty to warn of non-obvious risks/for foreseeable misuse of otherwise safe products. Evaluated by negligence-like risk-utility analysis.
Drug Cases: Most common failure-to-warn cases.
Learned Intermediary Doctrine: Manufacturer's duty limited to warning prescribing physician, not patient (default rule in Restatement Third). Exceptions exist if provider not in position to pass warnings (e.g., mass-media campaigns for OTC drugs). Some courts reject doctrine (State v. Karl).
Adequacy of Warning: Comprehensible language, fair indication of nature/gravity/likelihood of risks.
Unknown and Unknowable Dangers: No duty to warn if danger was unknowable at time of sale ("state of the art" defense).
Danger to Small Number of People: Warning may be required depending on magnitude of danger.
Government Labeling Standards: Compliance admissible as evidence of adequacy, but not always dispositive. Federal preemption can make compliance a complete defense if Congress intended.
Post-Sale Duty to Warn: Duty to provide post-sale warning if manufacturer learns of significant risks and users can be identified. Some courts also impose duty to monitor products after sale.
Obvious Danger: Reduces warning obligation; may still apply if warning could easily be given and substantial minority might not know.
Hidden Causation Issue: Must be causal link between failure to warn and injury. No liability if warning wouldn't have prevented accident (e.g., plaintiff wouldn't read/ignored warning).
Who May Be a Defendant
Chattels: Strict and warranty liability apply to any seller in the business of selling goods of that kind (e.g., retailer).
Indemnity: Retailer liable may get indemnity from manufacturer/wholesaler.
Used Goods: Courts split on strict/warranty liability; usually no.
Lessor of Goods: Courts frequently impose strict liability on lessors of defective goods. May also be liable in negligence or implied warranty.
Sellers of Real Estate: Sometimes strict/warranty liability on professional builders (not consumers).
Services: One who sells services (not goods) not usually under standard strict liability or UCC implied warranties.
Product Incorporated in Service: Strict liability if product furnished with service is defective.
Services by Professionals: Health professionals almost never strictly liable/liable under warranty for defective products used.
Interests That May Be Protected
Property Damage: Generally recoverable under strict liability and negligence. Some states deny warranty recovery for property damage without personal injury.
"Property Damage" Defined: Property apart from defective product; damage to product itself typically not property damage for strict liability (seen as economic loss).
Intangible Economic Harm: Much harder to recover if only economic loss.
Direct Purchaser: Readily recoverable under warranty (superior to strict liability/negligence). Probably no recovery in strict liability/negligence.
Remote Purchaser and Non-Purchaser: Usually no recovery for pure economic harm under any theory (warranty, strict liability, negligence).
Combined: If physical injury or property damage, intangible economic harm may be "tacked on."
Defenses Based on Plaintiff's Conduct
General Rule of Plaintiff's Negligence Applies: Modern approach applies contributory/comparative negligence to product liability actions.
Different Types of Negligence by Plaintiff:
Failure to Discover the Risk: Generally not "negligence" (assumption product isn't defective); little to no reduction in recovery.
Knowing Assumption of Risk: Treated as comparative negligence; recovery reduced proportionately if unreasonable. Not an absolute bar.
Ignoring of Safety Precaution: Generally reduces (but doesn't eliminate) recovery.
Use for Unintended Purpose: No liability if misuse unforeseeable/unreasonable (superseding cause); otherwise, foreseeable misuse is not superseding.
Defenses Based on Federal Regulation, Mainly the Defense of Preemption
Preemption: Federal regulation may limit states' tort liability rules.
Supremacy Clause: Federal law takes priority over conflicting state law.
Express Preemption: Congress explicitly states intent to remove state regulation (e.g., FDA pre-approval of medical devices) (Riegel v. Medtronic Inc.).
Implied Preemption: Federal statute/regulation interpreted as displacing state tort law.
Direct Conflict: Impossible to comply with both federal and state law, or conflicting objectives.
Occupation of Entire Field: Congress intended to occupy a whole field, even non-conflicting state law preempted (especially if need for uniformity).
Implied Preemption of State Tort Remedies: Manufacturer argues federal regulation preempts allowing tort recovery (requires showing conflict or impeding federal enforcement). Harder to establish than express preemption (e.g., prescription drug cases) (Wyeth v. Levine).
Compliance with Government Standards ("Regulatory Compliance Defense"): Defendant asserts compliance with regulations means product is not defective. Usually rejected, but compliance is admissible as non-dispositive evidence.
Nuisance
Generally: "Nuisance" refers to type of injury: interference with plaintiff's rights (public) or use/enjoyment of land (private). Supported by intentional, negligent, or abnormally dangerous conduct.
Public Nuisance
Definition: Interference with a "right common to the general public."
Examples: Interference with public waterways, air purity, roads/facilities. Substantial harm required.
"Right Common to General Public": Limited to "indivisible resources shared by the public at large, such as air, water, or public rights of way." Not individual private property issues.
Requirement of Particular Damage: Plaintiff may recover for own damages only if "different in kind" (not just degree) from public's. Impact of this requirement is debated.
Within Defendant's Control: Defendant must have control over instrumentality at time of damage.
Private Nuisance
Nature: Unreasonable interference with plaintiff's use and enjoyment of land.
Interest in Land: Plaintiff must have an affected interest in land (tenant, family member, not just fisherman).
Elements: Substantial interference with use/enjoyment of land, and defendant's conduct was negligent, abnormally dangerous, or intentional.
Interference with Use: Must be substantial; not just small inconvenience. Sensitive plaintiffs ordinarily not protected if normal person wouldn't be bothered.
Defendant's Conduct: No general strict liability. Must be negligent, intentional (knowing interference substantially certain), or abnormally dangerous. Unreasonableness judged by balancing harm to plaintiff vs. utility of defendant's conduct (some courts also consider absolute interference magnitude).
Remedies: Compensatory damages; injunction if damages insufficient (requires plaintiff's harm outweigh defendant's utility).
Defenses: Contributory negligence (if nuisance based on negligence), assumption of risk. "Coming to the nuisance" (plaintiff buys knowing nuisance exists) is a factor, not absolute defense (Spur Industries, Inc. v. Dell E. Webb Development Co.).
Misrepresentation
Intentional Misrepresentation ("Deceit")
Definition: "Deceit" or "fraud." Intentional misrepresentation.
Elements: Misrepresentation, scienter (knowledge of falsity/reckless indifference), intent to induce reliance, justifiable reliance by plaintiff, damage.
Misrepresentation: Can be words, actions (e.g., turning back odometer), concealment. Non-disclosure generally not misrepresentation, but exceptions (fiduciary relationship, partial statement misleading, newly acquired info, basic facts plaintiff expects disclosed).
Scienter: Defendant knew/believed statement false, lacked confidence, or lacked grounds. Negligence insufficient.
Third-Party Recovery: Traditionally, only those defendant intended to influence. Modern rule: plaintiff can recover if member of class defendant had "reason to expect" would rely, and transaction is of expected sort (Varwig v. Anderson-Behel Porsche/Audi).
Justifiable Reliance: Plaintiff must rely and reliance must be justifiable; no duty to investigate, but cannot overlook the "obvious." Must be material to transaction.
Opinion: Hard to recover for "pure opinion." Easier if defendant has special knowledge, fiduciary relationship, or knows plaintiff is gullible. "Puffing" not actionable. Opinion implying facts can be actionable.
Statements About Law: Generally treated like other statements; actionable if includes implied factual statement.
Prediction and Intention: Prediction generally opinion. Statement of defendant's own intentions generally factual representation.
Damages: "Benefit of the bargain" (expectation damages) or "reliance" damages (out-of-pocket loss). Consequential damages may be recoverable. No emotional distress damages.
Negligent Misrepresentation
General: No common law action; most courts today allow recovery even for intangible economic harm.
Same Requirements: Most same as intentional misrepresentation.
Business Relationship: Quickest recovery when statements made in course of defendant's business/profession with pecuniary interest.
Liability to Third Persons: Narrower class than for fraudulent misstatement; liable to "limited group of persons" defendant intended or knew recipient intended to reach.
Strict Liability
Not Generally Allowed: No strict liability for "innocent" misrepresentation.
Exceptions: Sale/rental/exchange transaction where material misrepresentation made to close deal (even if innocent). Mislabelling causing physical injury (Restatement §402B).
Defamation
General Principles
Meaning: "Libel" and "slander"; protect reputation. First Amendment curtails definitions.
Prima Facie Case:
False and defamatory statement concerning plaintiff.
Publication (communication to non-plaintiff).
Fault by defendant (at least negligence, sometimes "actual malice").
Special harm (pecuniary) or actionability without it.
Defamatory Communication
Injury to Reputation: Statement must tend to harm plaintiff's reputation if believed; doesn't have to actually harm it.
Meaning Attached: Defamatory if any reasonable interpretation harms reputation, and at least one recipient made that interpretation.
Reference to Plaintiff: Reasonably interpreted by at least one recipient as referring to plaintiff; defendant's intent irrelevant. Groups only if small.
Truth: Not defamatory if true ("substantially true"). Defendant has burden of proof at common law. Constitutional decisions require plaintiff to prove falsity if media defendant and public interest.
Opinion: Pure opinion never defamatory. But opinion implying undisclosed facts can be defamatory as to those facts.
Libel vs. Slander
Significance: Matters only for "special harm" requirement.
Libel: Written/printed matter; physical form communication. Radio/TV broadcasts from script are libel.
Slander: All other statements (oral). Requires "special harm" (pecuniary) unless "slander per se."
Slander Per Se (No Special Harm Required): Imputing morally culpable criminal behavior; allegation of loathsome/communicable disease; adverse reflection on business/profession; imputing serious sexual misconduct.
Presumed Damages: Common law allows presumed damages for libel. Constitutional limits on presumed damages if public concern/public figure and no "actual malice." Allowed for private concern/private figure.
Publication
Requirement: Communication to someone other than plaintiff. Must be intentional or negligent.
Repeater's Liability: Repeater liable as if original maker, even if disclaiming belief in truth.
Intent
Common-Law Strict Liability: Libel/slander essentially strict liability torts historically.
Constitutional Decisions: First Amendment eliminated strict liability.
Public Figure: Must show "actual malice" (knowledge of falsity or reckless disregard of truth) (New York Times v. Sullivan).
Private Figures: Not constitutionally required to prove "actual malice." First Amendment prohibits strict liability against media defendant (must show at least negligence) (Gertz v. Robert Welch, Inc.). State common law often requires at least negligence against non-media defendants.
Privileges
Absolute Privileges: Apply even if motivated by malice. Judicial proceedings, legislative proceedings, government officials, husband/wife, consent.
Qualified Privilege: Lost if defendant acts primarily from malice or for unprotected purpose.
Protection of publisher's own interests, protection of another's interest (e.g., ex-employer reference), protection of common interest, report of public proceedings, "neutral reportage" (some courts).
Abuse of Qualified Privilege: Lost if defendant knew statement false/recklessly disregarded truth, excessive publication, or more damaging info given than needed.
Statutory Privileges: (e.g., Internet Service Providers immunity under Communications Decency Act of 1996) (Carafano v. Metrosplash.com, Inc.).
Remedies (Defamation)
Damages:
Compensatory: Pecuniary loss, humiliation, lost friendship, illness.
Punitive: For outrageous conduct. Public figure/public interest requires "actual malice"; private figure/private matter may allow with less fault.
Nominal: To "clear name."
Retraction Statutes: Some bar or limit recovery if retraction published.
Miscellaneous Torts
Invasion of Privacy
Four Torts (Right to Be Let Alone):
Misappropriation of Identity: Defendant appropriates plaintiff's name/picture for financial benefit without consent.
Intrusion on Solitude: Defendant invades private space in a "highly offensive" way to a reasonable person. Must be private place (not public). No publicity required.
Publicity of Private Life (Public Disclosure): Defendant publicly discloses non-public detail of plaintiff's private life, "highly offensive" to reasonable person. Not of legitimate public concern. Public record is a defense.
False Light: Defendant publishes false statements about plaintiff, not defamatory, but "highly offensive" to reasonable person. "Actual malice" required if plaintiff is public figure (Time, Inc. v. Hill).
Misuse of Legal Procedures
Three Torts: Malicious prosecution, wrongful institution of civil proceedings, abuse of process.
Malicious Prosecution: Defendant instituted criminal proceedings, terminated favorably for plaintiff, no probable cause, motivated by improper purpose. Requires active instigation.
Wrongful Civil Proceedings: Similar elements to malicious prosecution, but original proceedings are civil.
Abuse of Process: Person uses litigation devices for improper purposes (e.g., subpoena to harass).
Interference with Advantageous Relations
Three Business Torts: Injurious falsehood, interference with contract, interference with prospective advantage.
Injurious Falsehood ("Trade Libel"): Defendant makes false statements disparaging plaintiff's business/product. Requires: false disparagement, publication, scienter (knowledge/reckless disregard/ill-will), special damages (pecuniary harm). Defenses: truth, fair competition (puffing protected, not specific false allegations).
Interference with Existing Contract: Defendant induces X to breach existing contract with plaintiff. Defendant may defend if interference privileged (e.g., competition for at-will contract, but not usually for non-at-will).
Interference with Prospective Advantage: Defendant interferes with plaintiff's chance to make future contract with X. Similar rules to interference with contract, but defendant has broader privileges (e.g., competition generally protected).
Interference with Family and Political Relations
Family:
Husband and Wife: Some states allow spouse to sue for "alienation of affections" (causing loss of affection) or "criminal conversation" (sexual intercourse with spouse).
Parent's Claim: Parent may have claim if person caused minor child to leave home, or if sexual intercourse with minor daughter.
Interference with Political and Civil Rights: Common-law tort action for interfering with political/civil rights or public duties.
§1983 Suits for State Violation of Federal Rights: Federal statute allows tort action against person acting "under color of" state law who deprives plaintiff of federal constitutional/statutory rights. Most allege 14th/4th/8th Amendment violations. Limitations: must show actual damage, and generally requires intentional (not negligent) deprivation. Federal officials may face implied private right of action for constitutional violations (Bivens v. Six Unknown Named Agents of FBI).