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Flashcards in Torts Rules Deck (78):
1

Transferred Intent Doctrine - Five Relevant Torts - You Can't BAIL if you intended one tort but did something else

trespass to CHATTELS 

BATTERY

ASSAULT
false IMPRISONMENT

trespass to LAND

2

 

Negligence - Elements to make out a Prima Facie case - Any band that puts out a DRAB CD is guilty of negligence to its fans.

 

DUTY to exercise
REASONABLE care
to ANYONE in plaintiff's position
a BREACH of the duty to prevent the foreseeable risk of harm
CAUSATION (actual/"but for" and proximate/legal) resulting DAMAGES caused by the breach

3

Negligence - Alternative Standards of Care beyond "the reasonable person" - SKIDMART didn't HELP that COUPLE so they'll be held to a different standard of care.

SCHOOL and pupils (special relationship)
K duty (contractual special relationship)

INNKEEPER and guests ("highest" duty)

DRAMSHOP laws impose liability upon drinking establishments
MALPRACTICE standards for professionals liability to AUTOMOTIVE non-paying guests for reckless driving
RES ipsa loquitur
TRAVELERS aboard a common carrier ("highest" duty)
HOSPITAL and patients (special relationship) EMPLOYER and employees (special relationship) LANDLORD and tenants (special relationship) PRISONERS held by law enforcement (special relationship)
CREATION of harm - duty to alleviate consequences of defendant's act when it creates risk of harm to others, even if act was not negligent
OWNER/OCCUPIER of land - varying duties to invitees, licensees and trespassers

UNDERTAKING to act - may not abandon an attempted rescue if defendant leaves plaintiff in worse condition
negligence

PER SE - statute conclusively establishes standard for liability (reasonableness of defendant's actions irrelevant)
LOCAL ordinance violation by defendant is "evidence of negligence" by defendant - helps plaintiff establish prima facie case
EMERGENCY situation will lower defendant's standard of care unless defendant's negligence caused the emergency

4

Causes of action related to Products Liability I use PENS and when they explode, I sue for products liability.

IMPLIED warranty under UCC 2-314 to 2-318 (merchantability, fitness for a particular purpose, remote purchasers covered)
PUBLIC misrepresentation under restatement 402(B)
EXPRESS warranty under UCC 2-313

NEGLIGENCE
STRICT products liability - known as "Absolute Liability in Tort" under Restatement 402(A)

5

Bases of Strict Liability for Injury to Persons or Property - You will be strictly liable for missing the day if you are not UP at DAWN.

ULTRA-HAZARDOUS, abnormally dangerous activities

defective PRODUCTS
DOMESTIC animals with known dangerous propensities
ALL injuries caused by wild ANIMALS
WORKER's compensation (statutory strict liability)

NO-FAULT automobile insurance (statutory strict liability)

6

Causes of Action for Economic Injury - Causing FAMINE is an economic tort.

FRAUD- misrepresentation of a past or present material fact
ABUSE of process - initiation of civil or criminal proceedings against plaintiff with malicious intent (prior action NEED NOT have terminated in favor of present plaintiff)

MALICIOUS prosecution - initiation of civil or ciminal proceeding against plaintiff with no probable cause that plaintiff is liable or guilty, malicious intent (prior action MUST have terminated in favor of present plaintiff) INJURIOUS falsehood (disparagement) - recklessly or intentionally published false assertion of fact leading to pecuniary injury caused by 3rd party's response
NEGLIGENT misrepresentation - negligent misstatement of material fact in business of supplying information to others justifiably relied upon by plaintiff
interference with prospective ECONOMIC advantage, including contractual relations

7

Theories of Vicarious Liability - I DARE Plaintiff to Join vicariously liable tortfeasors.

DELEGATION of danger

AUTOMOBILE ownership
negligent entrustment (knew of unsafe driving habits)
use by family members for a family purpose
statutory liability for consenting to another's use of the vehicle
RESPONDEAT superior - "master" liable for acts of "servant" if committed within scope of employment
Negligent ENTRUSTMENT of dangerous instrumentalities to a child
known PROPENSITIES (failure to control child's known dangerous PROPENSITIES)
JOINT enterprise - when two or more persons act in concert
DELEGATION of non-delegable duties (inherently dangerous work, like excavation)

8

Defenses to Defamation – Privileges - It's bad P.R. to defend FOGIES in defamation cases.

PROCEEDINGS of legislative or judicial branch where statement occurred
REPORTS of public proceedings

FIRST amendment qualified privileges - non- malicious statements about public figures and public controversies, non-negligent statements about a private person
OPINIONS (fair comment opinions)

GOVERNMENT officials’ official statements

INTEREST (statements made in the INTEREST of self, third persons or the public)
EQUAL time broadcasts
SPOUSES Communication

9

Attractive Nuisance - Test To Determine Liability - An attractive nuisance is a REAL threat to the safety of children.

RECOGNITION of danger (that children fail)

EXPENSE of making condition is slight compared to danger
ARTIFICIAL (dangerous condition on property is ARTIFICIAL)
LIKELY trespassors (children are LIKELY to trespass on property (and possessor knows or should know)

10

Statements that Constitute Slander Per Se - It's slander per se to call someone SLIM.

SEXUAL misconduct (lack of chastity of a woman) LOATHSOME, communicable disease

INCOMPETENCE in trade or profession

conduct/crime involving MORAL turpitude

11

Defenses to Intentional Torts - Hell hath no fury like A SCORN'D tort victim.

ARREST (use of reasonable force to effect an ARREST)
SHOPKEEPER's privilege to detain suspect for reasonable time using non-deadly force

CONSENT
defense of OTHERS if protected party was entitled to use same amount of force
RECAPTURE of property if entitled to immediate possession
NECESSITY for public purpose or to abate nuisance DEFENSE of self, land and chattels under protective privilege

12

Available Remedies - Damages, Restitution, Equity - Get back at a tortfeasor by Playing CLARINET.

PUNITIVE damages for willful, wanton or malicious conduct normally associated with intentional torts COMPENSATORY damages for past, present and foreseeable future loss or injury (unforeseeable special damages must be specifically pleaded)

equitable LIEN on defendant's property to secure payment of debt owed to plaintiff

ASSUMPSIT(quasi-contract) suit to recover reasonable value of a benefit unjustly retained by defendant (plaintiff must waive tort liability)

REPLEVIN to recover possession of specific personal property wrongfully taken
INJUNCTION if there is inadequate remedy at law, threat of multiplicity of suits, damages are speculative or too small, and plaintiff will suffer from irreparable injury
NOMINAL damages recoverable where no injury sustained
EJECTMENT to restore possession of real property from which plaintiff was wrongfully ousted, PLUS mesne damages (rental value during that period)

constructive TRUST- equitable creation of a "trust" to compel defendant to reconvey title to property unjustly retained

13

Limitations on Awarding of Damages – You Can’t CUF tort damages without one of these.

damages must be CAUSED by defendant's breach ("but for" causation)

sufficiently CERTAIN - damages cannot be speculative

UNAVOIDABLE - no recovery for losses which reasonably could have been avoided or mitigated FORESEEABLE - damage/injury must be foreseeable at the time duty is breached (proximate cause)

14

Defenses to Claims Brought in Equity - Rights in equity LAPSE if U assert a proper defense.

LACHES- equity aids the vigilant, not those who knowingly sit on rights waiting for a defendant to detrimentally change position

freedom of ASSOCIATION- equity will not interfere with the internal management of an ASSOCIATION (exception: where property right is embedded in association membership)
injunction against PROSECUTION- equity will not enjoin PROSECUTION of a crime (exception: where criminal statute has been declared unconstitutional)
freedom of SPEECH- equity will not enjoin SPEECH (exception: national security at stake, sometimes trade libel)
injunction to ENJOIN crime- equity will not ENJOIN crime (exception: public nuisance if criminal prosecution is an inadequate remedy)
UNCLEAN hands- he who seeks equity must do equity (where plaintiff's unclean conduct is related to subject matter of suit and defendant is injured by it)

15

 

Absolute Privilege

 

The following communications are always protected against defamation claims regardless of content. This is because we as a society want to encourage open and free communication in these situations, or these parties have a special relationship that enable them to speak freely:


a) Spouses speaking to one another;
b) Communications occurring as a part of judicial proceedings;
c) Remarks made by legislators in debate;
d) Remarks by federal executive officers; and
e) Remarks made in ‘compelled’ broadcasts
 

i. Compelled broadcasts – A broadcast in which the station does not control the    content, or the preceding or following message, and has no right to state the    station’s agreement or disagreement.

Examples:


a) A husband tells his wife, “Our neighbor Fred is cheating on his wife.”
b) A witness on the stand says, “I heard that defense Attorney Andrews is an alcoholic.”
c) In an open session of Congress, Congressman Frank says, “Congressman Graham is a  misogynist.”
d) In a statement to the press, the President says, “The leadership of Apple Corporation  are thieving jerks.”
e) In a prepared ad sent by the FCC to radio stations, the stations played an ad that said,  “Bob Francis of 45 Main Street, Kansas City, Kansas is a scumbag and cheats on his  taxes.”

16

 

Qualified Privilege

 

Defendant’s speech can be protected by other relationships than those comprised by Absolute Privilege if they fall within one of the following categories:

a) Reports made of official proceedings;
b) Statements made in the interest of the publisher of the statement, often including  defending the publisher’s actions, property, or reputation;
c) Statements made in the recipient of the statement’s interest; and
d) Statements made in the interest of both publisher and recipient;

These statements are protected because we as a society want to encourage candor so long as:


a) The Statements are made in good faith (had a reasonable belief of the truth of the  statements); and
b) The Speaker did not act with Malice (either knowledge that the statement was false  or reckless disregard of the statement’s truth).

Defendant bears the burden of proving the existence of a privilege.

Examples:

a) Citizen A publishes a statement in the newspaper saying that “I only attacked B  because he was sleeping with my wife.” This statement is defamation if A had  knowledge that B was not sleeping with A’s wife or did not bother to try and find out  whether that statement was true before he published it.
b) Citizen C posts a flyer saying, “Citizen D, I won’t sue you, even though you are a  criminal, because you are an alien and Earth laws don’t apply to you.” This statement is  defamation, even though it’s for the benefit of D, because C does not have a reasonable  belief about the truth of the statement.
 

17

 

Truth Defense

 

Truth of the statement is a complete defense to all common law defamation claims. However, when the target of the defamatory statement is a public figure, or the statement is about a matter of public interest, the lack of truth of the statement must be an element of the original defamation claim, and its absence prevents the claim from being complete.

Examples:
a) Frank writes a newspaper editorial claiming that his neighbor George trespassed on  Frank’s land every time George mowed his lawn. Frank has a complete defense against  George’s defamation claim by proving that the land is Frank’s and providing video  footage of George mowing the law.
b) Ben writes a blog post about Governor Patrick claiming that Patrick has a illegitimate  child with his maid. Patrick’s defamation claim must show, as a part of the claim, that he  has no illegitimate children with his maid, or he no action for defamation.

18

 

INTENT

 

An act by the defendant: Some form of voluntary movement; often liberally construed.

Intent: If acting with purpose or goal to produce the forbidden result, intent will be met.
o Can be specific intent (the goal in acting is to bring about the specific consequences) or general intent (individual knows with substantial certainty that these consequences will result).

19

 

CAUSATION

 

If the defendant’s conduct was a substantial factor in bringing about the injury, causation will be satisfied.

20

 

DOCTRINE OF TRANSFERRED INTENT

 

Applies when a defendant intends to commit one tort but instead commits another (i.e., the intent is transferred from the intended tort to the committed tort for purposes of establishing a prima facie case.) The doctrine can be applied when the defendant intends to commit a tort against one person but instead commits:
o A different tort against that person;
o The same tort as intended but against a different person; or
o A different tort against a different person.

21

 

ASSAULT

 

An act by the defendant that creates a reasonable apprehension in the plaintiff of an immediate harmful or offensive touching.
o Apprehension is not simply fear, but knowledge that the defendant has the apparent ability to carry out the harmful or offensive touching (i.e., the defendant threatens plaintiff with an unloaded weapon, but plaintiff is unaware it is unloaded - the defendant can still be liable for assault).
o Immediacy: The plaintiff must be apprehensive that she is about to become a victim of an immediate battery. Mere words or threats of future acts are insufficient. If the defendant is too far away, will not suffice either

22

 

BATTERY

 

A defendant is subject to liability for battery if: 
o He acts intending to cause a harmful or offensive contact, or an imminent apprehension of such a contact; and
o An offensive or harmful contact with the person directly or indirectly results

Types of contact:
○   Offensive: If a reasonable person would be offended by such contact. (NOTE: If it has been consented to = not offensive).
○   Harmful: Anything connected to the plaintiff’s person.  The defendant does NOT have to touch the plaintiff.  Also, contact can be direct or indirect.
 

23

 

FALSE IMPRISONMENT

 


An act or omission by the defendant that confines or restrains the plaintiff in a bounded area.

Act: Threats that are persuasive to a person of ordinary sensitivity count (must be a realistic threat).
Omission:  Can be an act of restraint (i.e., failing to help a handicapped person off of a plane)
Confinement / Restraint Requirement: Only counts if the plaintiff is (a) aware of it; OR (b) is harmed by it (can be a mental harm or physical harm). Exception: A defendant may be liable for false imprisonment if s/he confines a child or mentally incompetent person even when the victim is not aware of the confinement.
Bounded Area:  Plaintiff’s freedom of movement must be limited in all directions. (NOTE: blocking someone’s travel in one direction, moral pressure, or a barricade is NOT False Imprisonment).
 

24

 

INTENTIONAL INFLICTION OF EMTOTIONAL DISTRESS

 

Defendant must engage in conduct that is considered outrageous and the plaintiff must suffer extreme emotional distress.
Outrageous Conduct: This is conduct that transcends all bounds of decency tolerated in a civil society. Mere insults /words not outrageous but abusive language is. Ways to be outrageous:
o Continuous /Repetitive: Done over and over again, not once
o Defendant is a common carrier /innkeeper: (transportation company, hotel) higher standard of behavior
o Plaintiff is a member of a fragile class: Pregnant women, super-sensitive adults, elderly, young children, members of a race can be (though never tested).
Severe Emotional Distress:  Plaintiff must suffer SEVERE emotional distress; badly upset, but need not see a shrink; not “mildly annoyed.”
Intent: Unlike other intentional torts, recklessness as to the effect of Defendant’s conduct WILL satisfy the intent requirement.
Damages: Actual damages (severe Emotional Distress) are required!

25

 

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

 

The duty to avoid causing emotional distress to another is breached when the defendant creates a foreseeable risk of physical injury to the plaintiff either by:
o Causing a threat of physical impact that leads to emotional distress; or
o Directly causing severe emotional distress that by itself is likely to result in physical symptoms.

26

 

TRESPASS TO LAND

 

An act of physical invasion on the plaintiff’s Real Property.
o Intent:  The defendant need not be aware that he is crossing a property line and does not need to intend to trespass. The intent is to be on that particular piece of land.
o Mistake is NOT a defense. The defendant need not know the land belonged to another.
o Potential plaintiffs: Anyone with actual possession or a right to possession (one by adverse possession and lessees count). 
o Physical Invasion:  Can be the defendant himself or propelling a tangible object onto the land 
o Tangible Objects: Must be a physical object involved (i.e., throwing a baseball in someone else’s yard, causing a flood on the plaintiff’s land, throwing rocks).
o Intangible Objects:  Things like sounds, smells, and vibrations are not a trespass but may be a nuisance.  

27

 

ENCROACHMENT

 

A piece of real property hangs from one property over the property line of another landowner's premises. The actual structure that encroaches might be a tree, bush, bay window, stairway, steps, stoop, garage, leaning fence, part of a building, or other fixture.

An encroaching structure is trespass because in order to build you had intent to enter another’s land.

Remedy: Injunction: If the defendant had bad faith = tear the encroachment down.  If the defendant is innocent then balance the harm to the plaintiff and the defendant.
Damages: Rental values, Fair Market Value if permanent.

28

 

TRESPASS TO CHATTELS

 

A trespass to chattel may be committed by intentionally:
o Dispossessing another of the chattel; or
o Intermeddling with a chattel in the possession of another.

29

 

CONVERSION

 

An act by the defendant that interferes with plaintiff’s right of possession in personal property (chattel); and

The interference is so serious that it warrants requiring defendant to pay the property’s FULL VALUE at the time of the conversion.

Acts of Conversion: Includes theft, wrongful transfer / detention, and substantially changing, severely damaging, or misusing a chattel.

30

 

DEFENSES TO INTENTIONAL TORTS: CONSENT

 

A defendant will not be guilty of a tort if the plaintiff consented.
o Plaintiff must have legal capacity to consent (incompetents, drunks, very young children cannot consent).
o Scope:  Defendant cannot assert consent as a defense if s/he exceeded the scope of the consent

Express: Through express words.

Implied Consent: Consent implied by law or where consent is apparent from the plaintiff’s conduct


 

31

 

DEFENSES TO INTENTIONAL TORTS: SELF-DEFENSE

 

When a person reasonably believes that she is being, or is about to be, attacked, she may use such force as is reasonably necessary to protect against injury.
Initial Aggressor: Self-defense is generally not available to the initial aggressor.  BUT, if one uses deadly force against an initial aggressor who only uses non-deadly force, the initial aggressor may defend himself with deadly force.
Amount of Force: Can only use the amount of force that is reasonably necessary to prevent the harm; any more force and the defense will not apply.
Retreat: One need not attempt to escape, but the modern trend imposes a duty to retreat before using deadly force if this can be done safely (unless the actor is in her home). Thus, one can use deadly force to prevent death or serious bodily injury. 

Third-party injuries: Self-defense may extend to third-party injuries.  An actor might be liable to a third person if s/he deliberately or negligently injured him in trying to protect herself. Yet, if the defendant didn’t act with negligence or deliberately than accidental injury is privileged.

32

 

DEFENSES TO INTENTIONAL TORTS: DEFENSE OF OTHERS

 

One may use force to defend another when the actor reasonably believes that the other person could have used force to defend himself.
o Force: Defender can use as much force as s/he could have personally used in self-defense if the attack was directed to him.

33

 

DEFENSES TO INTENTIONAL TORTS: DEFENSE OF PROPERY

 

One may use reasonable force to prevent the commission of a tort against her real or personal property.

Mistake: A reasonable mistake is allowed as to whether an intrusion has taken place. However, a mistake is not allowed as to privilege unless the entrant conducts the entry so as to lead Defendant to believe the entry is not privileged
 

34

 

DEFENSES TO INTENTIONAL TORTS: CRIME PREVENTION

 

Privilege of Arrest:
o Arrest WITH a Warrant: An arrest under a warrant is not privileged unless the person arrested: (a) Is, or the defendant reasonably believes to be, sufficiently named or otherwise described in the warrant; or (b) Although not the person in the warrant, has knowingly caused the actor to believe him to be so.
o Arrest WITHOUT a warrant:
• Arrests by Private Citizens: Allowed when a felony is being committed or reasonably appears about to be committed in the citizen’s presence, or if the felony has actually been committed and the citizen has reasonable grounds to believe the person s/he arrests committed the crime
o Arrests by Police: Allowed the same rights to arrest people for felonies as private citizens do, in addition to arresting an individual if the officer believes that person is a felon (regardless of whether or not a felony was actually committed)
o Privilege of Warrantless Arrests:
• Carries with it the privilege to enter another’s land for the purpose of making the arrest.
• Although the arrest itself may be privileged, the actor may still be liable for subsequent misconduct (i.e. failing to bring the arrested party before a magistrate, or unduly detaining the party in jail).

35

 

DEFENSES TO INTENTIONAL TORTS: RE-ENTRY UPON LAND

 

An owner or possessor of land may forcibly enter unto the land where another has wrongfully entered or remained on the land

Common law: One could use reasonable force to reenter land only when the other came into possession tortuously.

Modern law: Summary procedures allowed for recovering possession of real property. Thus, SELF-HELP is no longer available = the owner who uses force to retake possession is thus liable for whatever injury she inflicts.

36

 

DEFENSES TO INTENTIONAL TORTS: RECAPTURE OF CHATTELS

 

When one’s possession began lawfully, one may use only peaceful means to recover chattel. Force may be used to recapture a chattel only when in hot pursuit of one who has obtained possession wrongfully (i.e., by theft).

Timely Demand: Timely demand is required to return the chattel first (unless dangerous). Recapture can only be from the wrongdoer who knows the chattel was obtained wrongfully, no force is allowed against an innocent party
Owner’s Fault: If the chattel is on the land through the owner’s fault, there is NO privilege to enter the land and the owner must recover through legal process.
Force: Reasonable force, not including force sufficient to cause death or serious bodily harm, may be used to recapture chattels.
 

37

 

DEFENSES TO INTENTIONAL TORTS: NECESSITY

 

Public Necessity: An actor may enter onto the land of another to avert an imminent public disaster.
o The interference will be privileged if the defendant entered to protect the community as a whole or some significant group of people.  Also, the defendant doesn’t have to be a public official.
o Even where such entry is not necessary, the entry is still privileged if the actor reasonably believes that it is necessary.

Private Necessity: A defendant will be able to assert a private necessity defense when s/he acts in an emergency and invades the plaintiff’s property in order to protect an interest of his own, but will have to pay for any damages caused.
 

38

 

DEFENSES TO INTENTIONAL TORTS: QUALIFIED PRIVILEGE

 

Defendant is not liable for trespass but is liable for damage to the property or chattel.
o Privilege will supersede a landowner’s privilege to defend his property by use of reasonable force.
o Defendant never owes nominal or punitive damages.

39

 

NEGLIGENCE: DUTY

 

A duty of care is owed to all foreseeable plaintiffs.

General Duty Standard: Defendant has a duty to act as a hypothetical Reasonable and Prudent Person (RPP) would under the same or similar circumstances to avoid causing unreasonable risk of harm to others.
 

40

 

NEGLIGENCE: SPECIAL DUTY TO RESCUERS

 

A rescuer is a foreseeable plaintiff where the defendant negligently puts himself or a third person in peril.

41

 

NEGLIGENCE: SPECIAL DUTY OF CHILDREN

 

Children over the age of four must exercise the amount of care that would be exercised by a child of like age, education, intelligence, and experience acting under similar circumstances. (Subjective Standard = it is different for every child).

 

42

 

NEGLIGENCE: SPECIAL DUTY OF PROFESSIONALS

 

Professionals: Must possess the minimum, common skill of members in good standing in their profession.  If the Professional is an expert, they must act as a reasonable expert would in like or similar circumstances.

Doctors: Doctors who are specialists are held to a national standard of care and must conduct themselves as a reasonable specialist would nationally.  Doctors who are generalists are held to the standard of care of a reasonable physician in the same or similar locality.
 

43

 

NEGLIGENCE: SPECIAL DUTY OF OWNERS/OCCUPIERS OF LAND

 

General Rule: There is no duty to protect one off of the premises from natural conditions on the premises, but there is a duty for unreasonably dangerous artificial conditions or structures abutting the adjacent land.
Duty of Possessor to those ON THE PREMISES:
o Traditional View/Majority: Duty owed depends on the Plaintiff’s status as a trespasser, licensee or invitee.
o Modern View/ Minority: Rejects the distinctions between licensees and invitees, and in a few states, trespassers as well. Simply applies a reasonable standard to dangerous conditions on the land.
Duty owed to TRESPASSERS:
o Undiscovered Trespassers: No duty is owed to an undiscovered trespasser. (Entrant comes on the land without permission and possessor did not know
Duty owed to LICENSEES: A licensee is one who comes onto the land for their benefit, such as social guests and police. (Friends, solicitors, door to door salesman = implied permission.)
Duty owed to INVITEES: People who come onto the land to confer some benefit on the occupier, such as paying customers.

44

 

VIOLATION OF STATUTE:
NEGLIGENCE PER SE

 

A statute’s specific duty may replace the more general common law duty of care if:
o The Plaintiff was in the class of persons the statute or rule was designed to protect;
o The injury was the type the statute or rule was designed to protect against;
o The Defendant violated the statute; and
o Violation of the statute caused the Plaintiff’s injury (statute borrows the duty of care in statute’s language).
Negligence Per Se: Under the majority view, an unexcused statutory violation is a conclusive presumption

45

 

NEGLIGENT BREACH:
REASONABLE PERSON TEST

 

Where defendant’s conduct falls short of the level required by the applicable standard of care owed to the plaintiff, s/he has breached her duty.  Whether the defendant breached a duty is a question for the jury.

46

 

NEGLIGENT BREACH:
RES IPSA LOQUITIR

 

In some cases, the very occurrence of an event can establish a breach of duty. The plaintiff must show:
o The accident would not have occurred in the absence of someone’s negligence;
o The event was caused by any instrumentality in the exclusive control of the Defendant; and
o Plaintiff did not contribute to his or her injuries.

Effect: Where RIL is established, the plaintiff has made a prima facie case and NO directed verdict may be given for the defendant. However, the plaintiff can STILL lose if the jury rejects the inference of negligence.

47

 

CAUSATION: ACTUAL CAUSE

 

“But For” + “Substantial Factor Test”

But For” Test:  But for the breach, Plaintiff would have escaped injury
 

48

 

CAUSATION: JOINT AND SEVERAL LIABILITY

 

Where “But For” test does not work because there are multiple defendants involved in the injury, an alternative test is necessary:
o If situation has multiple defendants and their actions are substantial factors in the injury, they will be held jointly and severally liable.
o Substantial Factor test: A breach is a substantial factor if it would have been capable of causing the harm all by itself.

49

 

CAUSATION: PROXIMATE CAUSE

 

General Rule- Foreseeability Test: Generally, a defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts.

Direct Causation: Where there is an uninterrupted chain of events from the negligent act to the Plaintiff’s injury, Defendant is liable for all foreseeable harmful results (not unforeseeable harmful results).

Indirect Causation: Where an intervening force (act by third person / God) comes into motion AFTER the Defendant’s negligent act and combines with it to commit plaintiff’s injury, liability depends on the foreseeability of the intervening forces. These intervening forces can be either dependent or independent, and are either foreseeable or unforeseeable.  

50

 

DEFENSES TO NEGLIGENCE: COMPARATIVE NEGLIGENCE

 

Comparative Negligence: Plaintiff’s contributory negligence is NOT a COMPLETE bar to recovery.
o Computation: Plaintiff’s recovery is reduced by Plaintiff’s amount of negligence.
o If Plaintiff 10% at fault, damages reduced by 10%.

Partial Comparative Negligence: BARS Plaintiff’s recovery if Plaintiff’s negligence was MORE SERIOUS than defendants.

Pure Comparative Negligence: Allows recovery no matter how great plaintiff’s negligence is. (On MBE assume Pure Contributory Negligence applies unless told otherwise).

51

 

DEFENSES TO NEGLIGENCE: CONTRIBUTORY NEGLIGENCE

 

Negligence on the part of the plaintiff that contributes to her injuries. The standard of care is the same as for ordinary negligence. The plaintiff’s violation of a statute can show contributory negligence. It is NOT a defense to intentional torts. Effect = completely bars plaintiff’s recovery at common law.

EXCEPTION- Last Clear Chance: The person with the last clear chance to avoid an accident who fails to do so is liable for negligence.  This permits the plaintiff to recover despite her contributory negligence.

Imputed contributory negligence: The contributory negligence of a third party will be imputed to a plaintiff (and bar her claim) only when the relationship between the third party and the plaintiff is such that a court could find the plaintiff VICARIOUSLY LIABLE for the third party’s negligence.  

52

 

DEFENSES TO NEGLIGENCE: ASSUMPTION OF RISK

 

Plaintiff may be denied recovery where she assumed the risk of any damage caused by the defendant’s act, either implicitly or explicitly. Plaintiff must have:
1. Known of the risk; and
2. Voluntarily proceeded in the face of the risk.

Implied: Risk may be assumed by Plaintiff’s conduct/ participation in activity.

Express: Risk may be assumed by an express agreement.

53

 

STRICT LIABILITY: ELEMENTS

 

1. Existence of an absolute duty on the part of the defendant to make safe;
2. Breach of that duty;
3. The breach of the duty was the actual and proximate cause of the plaintiff’s injury; and
4. Damage to the plaintiff’s person or property.

54

 

STRICT LIABILITY: ANIMALS

 

1. DOMESTIC ANIMALS: An owner is not strictly liable for injuries caused by domestic animals.
o Exception: If the owner has knowledge of that particular animal’s dangerous propensities that are not common to the species = strictly liable.  Example: you know your dog bites people.

2. WILD ANIMALS: An owner is strictly liable to licensees and invitees for injuries caused by wild animals as long as the injured person did nothing to bring about the injury.
o Liability for trespassers:  Strict Liability will not generally be imposed in favor of a trespasser in the absence of the owner’s negligence.
o Exception: A landowner may be liable on intentional tort grounds for injuries inflicted by vicious watchdogs.

3. TRESPASSING ANIMALS: An owner is Strictly Liable for reasonably foreseeable damage done by a trespass of his animals.

55

 

STRICT LIABILITY: ABNORMALLY DANGEROUS ACTIVITY

 

Elements:
o Even when reasonable care is exercised, the activity still creates a foreseeable risk of serious harm; and
o The activity is not a matter of common usage in the community (may be dangerous in one location, but not another).

Scope of Duty Owed: Duty owed to all foreseeable plaintiffs to make safe the normally dangerous characteristic of the animal or activity.
 

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PRODUCTS LIABILITY: GENERAL OVERVIEW

 

THE FIVE THEORIES:
1. Intent
2. Negligence
3. Strict liability
4. Implied warranty of merchantability and fitness for a particular purpose
5. Express warranty and misrepresentation

To find liability under ANY products liability theory, Plaintiff must show:
a. There is a defect; and
b. The existence of the defect when the product left the defendant’s control.
 

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PRODUCTS LIABILITY: MANUFACTURING DEFECT

 

Manufacturing Defects: Product emerges from manufacturing that is different and more dangerous than the manufacturing of products that were made properly.
o Can be proven if Plaintiff can show the product failed to perform as safely as an ordinary consumer would expect.
o Defendant must anticipate reasonable misuse.
o Also applies to defective food products.

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PRODUCTS LIABILITY: DESIGN DEFECT

 

When all products of a line are the same, but have dangerous propensities. Plaintiff must usually show a reasonable alternative design. That is, that the defendant could have made the product safer, without serious impact on price or utility.

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PRODUCTS LIABILITY: INADEQUATE WARNING

 

Failure to give adequate warnings as to the risks involved in using the product; for liability to attach, the danger must NOT have been apparent to users. 

A product’s noncompliance with government safety standards establishes that it is defective, while compliance with safety standards is evidence, although not conclusive, that the product is not defective.
 

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PRODUCTS LIABILITY: THEORY OF INTENT

 

Where the defendant intended the consequences or knew that they were substantially certain to occur. Products Liability based on intent are not very common. If intent is present, most likely tort is BATTERY.

Who can sue: Any injured plaintiff, privity is not required.

Damages: Compensatory and Punitive Damages.

Defenses: Those available in other intentional tort cases.
 

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PRODUCTS LIABILITY: THEORY OF NEGLIGENCE

 

Duty: A duty of care is owed to any foreseeable plaintiff (absence of privity is NOT a defense).  Plaintiff must prove that defendant is a commercial supplier of the product in question, as distinguished from a casual seller.
o Proper plaintiffs: Users, consumers, bystanders.
o Commercial suppliers: Manufacturers, wholesalers and retailers can be held liable.
Breach of Duty:
o Negligent conduct of defendant leading to;
o The supplying of the defective product (establish product is defective here) by Defendant.  .
Causation: The standard negligence analysis for both actual causation and proximate cause applies to products liability cases on negligence.
Damages: Physical injury or property damage must be shown. (Not solely for economic loss).
Defenses: Same as in general negligence.

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PRODUCTS LIABILITY: THEORY OF STRICT LIABILITY

 

A strict duty owed by a commercial supplier of a product:
o Defendant has a duty to supply safe products (privity is not required, so consumers, users and bystanders can sue).
o A plaintiff must prove that defendant is a commercial supplier of the product in question, as distinguished from a casual seller.
Breach of that duty: The plaintiff need not prove that the defendant was at fault in selling or producing a defective product – only that the product in fact is so defective (as defined above by either showing a manufacturing, design or inadequate warning defect) as to be ‘unreasonably dangerous’
Absence of Alterations: To hold the commercial supplier strictly liable for a product defect, the product must be expected to, and must in fact, reach the user or consumer without substantial change in the condition in which it is supplied.
Actual and proximate cause:  Plaintiff must show the defect existed when the product left the defendant’s control.   There is a presumption that an adequate warning would have been read by plaintiff. (ACTUAL CAUSE) The negligent failure of an intermediary to discover the defect does not void the supplier’s strict liability. (PROXIMATE CAUSE
Damages: Types of damages recoverable are the same in negligence actions, namely personal injury and property damages.

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PRODUCTS LIABILITY: THEORY OF IMPLIED WARRANTY

 

There are two warranties implied in every sale of goods:
o Merchantability: Refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used; and
o Fitness for a particular use: Arises when: (1) The seller knows or has reason to know the particular purpose for which the goods are required; and (2) That the buyer is relying on the seller’s skill in selecting the goods.
 

Who can sue? Most states no longer require vertical privity, and adopt a narrow requirement of the horizontal requirement. This means the buyer or his or her family, household, and guests can sue for personal injuries.

Breach: If the product fails to live up to either requirements of the above standard, warranty is breached and product defective. Also, plaintiff does not have to prove fault.

Causation: Same as in ordinary negligence cases.

Damages: Personal injury, property and purely economic loss
 

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PRODUCTS LIABILITY: THEORY OF EXPRESS WARRANTY

 

An affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty.

Who can sue? Any consumer or bystander. If a buyer sues, the warranty must have been part of the basis of the bargain. If the plaintiff is not in privity, (bystander), she need not have relied on the representation as long as someone did.

Breach: Fault need not be shown. Plaintiff only needs to show the product did not live up to its warranty.
 

Causation, damages and defenses: Same as Implied warranties.

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PRODUCTS LIABILITY: MISREPRESENTATION OF FACT

 

Liability arises when a seller represents something about an item and this induces reliance by the buyer.  Elements include:
o Misrepresentation of a material fact (fact concerning the nature of the product, not opinions);
o Intent to induce reliance (an advertisement may be sufficient); and
o Justifiable reliance (ask: was it a substantial factor in the buyer’s decision to purchase?).
Causation:
o Actual cause: Reliance by the purchaser serves to show actual cause.
o Proximate cause: Same as products liability based on negligence or strict liability.
Damages: Same as products liability based on negligence or strict liability.

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DEFAMATION: ELEMENTS

 

1. Defamatory language on the part of the defendant;
2. Of or concerning the Plaintiff (reasonably identifies the plaintiff);
3. Publication;
4. Damage to the reputation of the plaintiff; and
5. Absence of any applicable defenses.

 

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INVASION OF A RIGHT TO PRIVACY

 

Defendant uses plaintiff’s name or picture for a commercial purpose:
o It is an unauthorized use for defendant’s commercial advantage.
o Liability is generally limited to ads or promotions of products or services.
o Mere economic benefit to defendant (not in connection with promoting the product or service) by itself is not sufficient.

Newsworthy Exception: Privacy law does not apply with respect to publications concerning newsworthy events or other matters of public interest. This exception applies to public figures, defined as persons who have become newsworthy either by their voluntary conduct or because it was thrust upon them.
 

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INTRUSION UPON PLAINTIFF’S AFFAIRS OR SECLUSION

 

Prying or intruding must be objectionable to a reasonable person.

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PUBLICATION OF FACTS PLACING PLAINTIFF IN FALSE LIGHT

 

Where one attributes to plaintiff views s/he does not hold or actions s/he did not take and there is widespread dissemination.


The false light must be something objectionable to a reasonable person under the circumstances. For liability to attach, there MUST be publicity

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PUBLIC DISCLOSURE OF PRIVATE FACTS

 

Requires the widespread disclosure of private information (matters of public record are not sufficient).


o The public disclosure must be objectionable to a reasonable person of ordinary sensibilities.
o Liability may attach even though the actual statement is true.


Newsworthy Exception:  Same as ‘Invasion of right to privacy

 

 

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INTENTIONAL MISREPRESENTATION

 

Misrepresentation of a material fact: There is no duty to disclose.  An opinion is not actionable unless rendered by someone with superior skills in the area.


Scienter: When defendant made the statement, she knew or believed it was false, or that there was no basis for the statement.


Intent to induce plaintiff: To act or refrain from acting in reliance upon the misrepresentation.


Causation: Plaintiff must prove actual reliance.


Justifiable Reliance: Plaintiff must prove reliance was justified only to a statement of fact, not opinion; and

Damages: Plaintiff must prove actual pecuniary loss.

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NEGLIGENT MISREPRESENTATION

 

1. Misrepresentation by defendant in a business or professional capacity;
2. Breach of duty toward plaintiff;
3. Causation;
4. Justifiable Reliance; and
5. Damages.

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NUISANCE

 

PRIVATE NUISANCE: A substantial, unreasonable interference with another private individual’s use or enjoyment of property that he actually possesses or to which he has a right of immediate possession.
o Substantial Interference: Offensive, inconvenient, or annoying to the average person in the community. Not substantial if mere hypersensitivity.
o Unreasonable Interference: The severity of the inflicted injury must outweigh the utility of the defendant’s conduct. Courts take into account that every person is entitled to use his own land in a reasonable way, and will consider such factors as the neighborhood, land values, and whether other alternatives to the conduct exist.
 

PUBLIC NUISANCE: An act that unreasonably interferes with the health, safety or property rights of the community (i.e., using a building for criminal activity.)

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JOINT AND SEVERAL LIABILITY

 

Where two or more persons are liable for an indivisible injury, each negligent actor will be jointly and severally liable (liable to the plaintiff for the entire damage). If the injury is divisible, each Defendant is liable only for the identifiable portion.
Act in Concert: Where two or more defendant’s act in concert and injure the plaintiff, each is jointly and severally liable for the ENTIRE injury. This is so even if the injury is divisible

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VICARIOUS LIABILITY

 

Vicarious Liability occurs when one party commits a tort against a plaintiff, but a third party will be liable to the plaintiff for the act


Respondeat Superior: An employer will be Vicariously Liable for the torts committed by the employee if the acts occurred within the scope of the employment relationship.

Independent contractors (IC): A principal will not be vicariously liable for the torts of her agent if her agent is an IC.
o Two exceptions: Where IC engaged in inherently dangerous activities; or the duty because of public policy considerations is simply non-delegable. 
 

Partners and Joint Ventures: Each member is vicariously liable for the torts of another member committed in the scope and course of the affairs.

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SURVIVAL AND WRONGFUL DEATH ACTIONS

 

SURVIVAL OF TORT ACTIONS: Allow one’s cause of action to survive the death of one or more of the parties. The acts apply to actions involving torts to property and torts resulting in personal injury. However, torts involving tangible personal interest (e.g., defamation, privacy rights or malicious prosecution) expire upon victim’s death.

WRONGFUL DEATH: Grant recovery for pecuniary interest for injury resulting to the spouse and next of kin. A decedent’s creditors have no claim against the amount awarded. Recovery is limited only to the amount the deceased could have recovered. (Deceased contributory negligence reduces recovery).
 

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TORTIOUS INTERFERENCE WITH FAMILY RELATIONS

 

HUSBAND / WIFE: Either spouse can bring an action for indirect interference with consortium and services caused by the defendant’s intentional or negligent tortious conduct against the other spouse.


PARENT / CHILD:  A parent may maintain an action for loss of child’s services as a result of the defendant’s tortious conduct, whether intentional or negligent. A child, however, has no action in most states against one who injures the parent.


NATURE OF ACTION: These actions are derivative; thus, any defense would prevent recovery for the injured family member also would prevent recovery for interference with family relationship.

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TORT IMMUNITIES

 

Intra-Family Tort Immunities: Under the traditional view, one member of a family unit could not sue another in tort for personal injury. Most states abolished husband and wife immunity.


Governmental tort immunity as a defense: Federal, state and municipal tort immunity has mostly been eliminated. Where it survives, it attaches to governmental functions only.
o Federal Government (Federal torts claim act):, immunity will still attach to assault, battery, false imprisonment/arrest, malicious prosecution, abuse of process, libel and slander, misrepresentation and deceit, and interference with contract rights.
o State and Local Government: Most states have substantially waived their immunity to the same extent the federal government has.
o Public Officials: Immune from tort liability for discretionary acts done without malice or improper use while carrying out official duties. Liability attached for ministerial acts.

Charitable Immunities: Majority of jurisdictions have eliminated charitable immunity