Torts [the essentials]

Question 1

Prima Facie [intentional torts]

Answer 1

(1) Act by D(2) Intent by D desire to bring about the illegal consequence Causation of result to P from Ds Act [substantial factor in bringing about injury]

Question 2

Transferred Intent

Answer 2

When the D intends to hurt one person but:
(1) commits a different tort against the person
(2) commits the intended tort against a different person
OR
(3) commits a different tort against a different person

YOU ARE STILL GOING TO BE LIABLE

Can only be used for: [intended + result]-assault-battery-false imprisonment-trespass to land-trespass to chattels

Question 3

Key Tenants of intentional torts

Answer 3

(1) hypersensitivity of P is ignored–for intentional torts just assume that it is based on a reasonable person
(2) Intentional Torts = NO incapacity defenses [everyone can be liable!]

Question 4

Intentional torts [against persons]

Answer 4

Battery, Assault, False Imprisonment, Intentional Infliction of Emotional Distress

Question 5

Battery

Answer 5

Intentional Tort

(1) harmful or offensive conduct
(2) contact has to be with the Ps person
-Ps person INCLUDES anything that is touching or is held by the P at the time of contact
-contract does not need to be instantaneous

Question 6

Assault

Answer 6

Intentional Tort

(1) Act by the D that creates a reasonable apprehension in the P
(2) of an immediate battery (harmful or offensive contact to the Ps person)

Fear is not required–just apprehension
Requirement of immediacy: words alone do not have immediacy [not enough]/words can also negate immediacy

Knowledge: must know whats going on–although do not need to know Ds ID

Question 7

False imprisonment

Answer 7

Intentional Tort

(1) Act of restraint (2) P must be confined in bounded area

Methods of confinement/restraint:
-physical barriers
-physical force against P, fam, or property
-direct threats of physical force
-failure to release P when under a legal duty to do so
-invalid use of legal authority

a bounded area is one here there is no reasonable means of escape known to the P
-way out must be reasonable–do not have to. use if it is: dangerous, disgusting, humiliating, or hidden

Timing: doesn’t matter how long/or short

Awareness: But P must KNOW they are confined

Question 8

Intentional Infliction of Emotional Distress

Answer 8

Intentional Tort

(1) act by D that is extreme and outrageous conduct
(2) causes the P severe emotional distress

Extreme and Outrageous: this is the type of conduct that transcends all decency tolerated in civilized society
-not enough to upset someone on purpose–must be RIDICULOUS
-mere insults are not considered outrageous

Hallmarks of outrageous shit:
-conduct that is repetitive in nature [continuous]
-D is common carrier or innkeeper
-P is member of fragile class [child, old person, pregnant person]

Intent: unlike other intentional torts–recklessness as to effect of conduct is enough

Exception to hyper-sensitive P rule:
-if D had prior knowledge of specific unique sensitivity of P–is considered outrageous if you go after them for that

Causation in a Bystander Case of IIED:
Ds conduct is directed at third person–but P suffers emotional distress
P must show: (1) prima facie elements of IIED
OR
(1) they were present when the injury occurred; (2) the distress resulted in bodily harm or the P is a close relative of the third person AND (3) the D knew these facts

Question 9

Intentional Torts [against property]

Answer 9

Trespass to land
Trespass to Chattels
Conversion

Question 10

Trespass to Land

Answer 10

Intentional Tort

(1) physical invasion
(2) of the Ps real property [of land]

Physical Invasion: Even if you are NOT aware of crossing onto their property–it is still a physical invasion
Intent: need only intent enter onto the land you enter onto
-could ALSO be the throwing of something tangible onto their land

Real Property: includes air above and soil below to a reasonable amount]

Damages: P can recover without showing actual injury to land

Question 11

Trespass to Chattels

Answer 11

Intentional Tort
SMALL HARM

Intentional interference with Ps personal property that warrants D pay damages

Personal Property: is everything that is not land + includes money

Interference: damaging chattel or depriving P of the rightful possession of chattel

Intent: to do an act of interference
-mistaken believe that property is theres is no defense

Question 12

Conversion

Answer 12

Intention Tort
BIG HARM–“break it, you buy it”

Intentional interference with Ps personal property so serious as to warrant D pay full value of the property
-the longer the withholding or the more damage–the more likely it is conversion of trespass to chattel

Intent: to do an act of interference
-mistaken believe that property is theres is no defense

Damages P may recover damages [fair market value at time of conversion] or possession [replevin]

Question 13

Defenses to Intentional Torts

Answer 13

(1) Consent [express + implied]
(2) Self Defense
(3) Defense of Others
(4) Defense of Property
(5) Necessity

Question 14

Consent

Answer 14

All consent has a scope

Questions:
(1) was there valid consent
(2) did the D stay within the boudnaries of the consent

-must also consider legal capacity
-no legal capacity = drunk people and very young kids
-some legal capacity: older kids + adults with mild intellectual disabilities
Ex: two kids [no capacity] but they can consent to wrestle with each other

Express Consent:
D is not liable if the P expressly consent to the Ds conduct:
Exceptions:
(1) mistake will undo express consent IF the D knew of and took advantage of the mistake
(2) fraud re essential matter
(3) consent via duress

Implied Consent:
What a reasonable person would infer from custom and usage or Ps conduct
(1) social custom + usage [if P voluntary takes party in conduct where invasions happen–they are consenting]
(2) Body language–Ds reasonable interpretation

Question 15

Self defense

Answer 15

Self Defense:
Person reasonably believes that they are being or are about to be attacked, they may use such force as is reasonably necessary to protect against injury

Majority Rule: no duty to retreat
Modern Rule: duty to retreat if safe but not if in Ds home
-not available to the original aggressor unless the P responds to non-deadly force with deadly force

Question 16

Defense of Others

Answer 16

Defense of others:
Person may use force to defend another when they reasonably believe that the other person could have used force to defend themselves
-reasonably mistake is permitted
-same degree of force calculation as in self-defense

Question 17

Defense of Property

Answer 17

Defense of Property:
May use reasonable force to prevent the commission of a tort against real or person property
May also use force in hot pursuit of one who has tortiously taken their personal belongs–looked at as still in progress
-mistake is not allowed as to whether the other person has a privilege that is greater than the property right
-may use reasonable force but may NOT use force causing death or serious bodily harm unless faced with it
ALSO DO NOT SET DEADLY TRAPS

Question 18

Shoplifting Detentions

Answer 18

Shopkeeper’s Privilege

(1) reasonable belief as to theft
(2) detention conducted in a reasonable manner + only with non-deadly force
(3) detention must be for reasonable period of time + only for making an investigation

Question 19

Necessity

Answer 19

Applies to Property Torts

A person may interfere with the land or personal property of another when is is necessary in an emergency to avoid anger from a natural or other force + when the threatened injury is substantially more serious than the invasion

Public Necessity: D acts in emergency to protect community
-this is a absolute defense

Private Necessity: Acting to protect own interest [property/person]
-have privilege to enter + stay until the necessity ends
-RIGHT TO SANCTUARY
-this is a limited/qualified defense–so much pay compensation damages but not liable for any nominal/punitive damages

Question 20

Prima Facie Case [negligence]

Answer 20

(1) duty
(2) breach
(3) causation
(4) damages

Question 21

Duty of Care

Answer 21

Legally imposed obligation to take risk-reducing precautions for benefit of others

General duty of care: is owed to all FORESEEABLE Ps
-do not owe a duty to non-foreseeable victims [Palsgraff]
-only owe a duty to those within the “zone of danger”

Exception: rescuers are foreseeable Ps when D negligently puts themselves or a third party in danger [danger invites rescue]
NOTE: Firefighters + police officers are barred by the firefighters rule from recovering for injuries that are an inherent risk of their jobs

Question 22

The Reasonably Prudent Person

Answer 22

Basic standard of care–OBJECTIVE STANDARD

Re DOC for foreseeable Ps–you owe same amount of care as would have been exercised by a reasonably prudent person in same circumstances
-mental deficiencies are not taken into account–EVERYONE IS LIABLE

Exceptions:
(1) for superior skill/knowledge [reasonable prudent person +]
(2) physical characteristics where relevant [ex: a blind person–reasonably prudent blind person]

Question 23

Special Negligence Duties

Answer 23

Children [usually 5-18]: are held to the standard of a child of the same age, intelligence + experience [SUBJECTIVE TEST]
-under 5 generally no standard
Exception: children who are doing dangerous adult activities (operating a motorized vehicle) get the reasonably prudent standard

Professionals: [Malpractice Claims]
Standard is same care as average member of same profession providing similar professional services
-generally this is a national standard of care
-duty is to conform + custom of profession sets standards

Statute: a duty imposed by a statute that provides criminal penalties can replace reasonably prudent standard if:
(1) the P is within the protected class
(2) the statute was designed to prevent the type of harm suffered by the P
violation of statute = duty + breach = negligence per se
Excuse for violation: violation of some statutes can be excused if compliance would have been more dangerous

Question 24

Special Negligence Duties [for possessors of land]

Answer 24

Unknown Trespassers: NO DUTY OWED

Known Trespassers: [discovered/anticipated]
KNOWN MAN MADE DEATH TRAPS
Must warn or make safe any conditions that are:
(1) artificial (2) highly dangerous (3) concealed (4) known to the possessor in advance

Licensees: Enters land with permission but without financial benefit to possessor
Ex: solicitor coming up to door
Ex: someone who comes over for dinner [social guests]
Must warn or make safe any conditions that are (1) concealed and (2) known to the land possessor in advance

Invitees: Enter land with permission for financial benefit of possessor. Includes when open to the public at large
Ex: supermarket, airport
Duty regarding hazards that are: (1) concealed (2) known to land possessor in advance or could have been discovered via reasonable inspection

Trespassing Children [Attractive Nuisance Doctrine]
if you have someone on your property that will be a kid magnet
Must exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous artificial conditions on property
P must show:
(1) dangerous condition on land that owner knows or should know about
(2) the owner knows or should know that kids might trespass
(3) the condition is likely to cause injury [dangerous cause kid cannot appreciate the risk]
(4) the expense of remedying the situation is slight compared to the risk

HOW TO SATISFY PREMISE LIABILITY GENERALLY
-repair, replace, remove
-or warn about hazardous conditions [with a sign?]

Question 25

Affirmative Duty to Act

Answer 25

GENERALLY: no duty to act affirmatively

Exceptions:
(1) Special relationship between parties
Ex: innkeeper/guests, father/child
ALSO places of public accommodation have a duty to prevent injury to guests by third persons

(2) D caused peril

(3) Assumption of duty by acting: once you choose to rescue = must do so with reasonable care
-many states have enacted Good Samaritan statutes–insulating negligent rescuers from liability

Question 26

Negligent Infliction of Emotional Distress

Answer 26

if there has been a physical injury caused by tort–damages for emotional distress can be tacked on without having to go through this analysis

SITUATIONS WITH NO PHYSICAL INJURY

Near Miss Cases: P must show that (1) P was within the “zone of danger” and (2) P must suffer physical symptoms from the stress [diagnosable physical symptoms]
-minority of states have dropped the physical symptoms requirement

Bystander Cases: D negligently injures [kills or seriously injures] 3rd party causing P emotional distress
P must show: (1) the P and the injured person are closely related [family members–generally spouses or parent/child]
(2) P was present at scene of injury + personally saw the event

Special Relationship between P + D: [Business Relationship]
P can recover if highly foreseeable that careless performance by D will produce emotional distress
Ex: medical patient/medical lab
Ex: customer/funeral parlor
NOT customer/dry cleaner

Question 27

Breach

Answer 27

MOSTLY FACTUAL

P must point to concrete specific behavior when the Ds behavior fell short of the standard of care owed to them

Res Ipsa Loquitur: [used by P who does not have specific info about breach]
The very occurrence of an event tends to establish that there was a breach of duty
P must show:
(1)accident is normally associated with negligence
Ex: barrel falling out of a window
(2) accident would normally be due to negligence of someone in Ds position
**this can often be shown by evidence that the instrumentality causing the injury was in exclusive control of the D]

Result of Res Ipsa Loquitur: P has made a prima facie showing and there can be no directed verdict for D–WILL go to the jury

Question 28

Factual Causation

Answer 28

Causation = the link between the breach + the harm

General Test: BUT FOR Test
P must convince the jury BUT FOR THE BREACH that harm would not have occurred
-D can refuse with “even if”

Merged Causes–Substantial Factor Test
2 Ds acting independently each commit a breach combining into one divisible harm
ASK: would breach have caused the whole harm?
= jointly + severely liable
P could recover full damages from either D

Uncertain Causes Approach: Two acts + only one causes injury but unsure which one
Ex: D1 and D2 both negligently fire shot guns. P gets hit but no one knows if it was D1 or D2
Outcome: shifts burden to Ds
-both Ds will have to prove that the bullet was not theres
-if they cannot–they both may be liable

Question 29

Proximate Causation

Answer 29

Ds conduct must ALSO be the proximate cause of the injury
Essentially: P needs to convince that this is all fair

General Rule: Foreseeability
Was outcome foreseeable?
Guidelines: SQUISHY
(1) Passage of time
(2) geographic distance
(3) prior occurrence

Common Foreseeable Intervening Forces: [are a thing]
-medical malpractice
-negligence of rescuers
-protection or reaction forces to Ds conduct
-disease or accident substantially caused by original injury

Superseding Forces: break the causal connection between the Ds initial negligent act and the injury
-unforeseeable results

Question 30

Damages for Negligence

Answer 30

Egg-Shell Skull Doctrine: must take your P as you find them
Once P has established all other elements of claim–P must receive all damages suffered even if surprisingly big in scope
this is not limited to negligence claims

Contributory Negligence: P is contributorily negligent
Outcome: Ps claim is barred

Pure Comparative Negligence: Trier of fact weights the Ps negligence (contributory negligence) and reduces damages accordingly (percentage)

Partial Comparative negligence:
-bars Ps recovery if their negligence was more serious than the Ds negligence
-otherwise same as pure

Question 31

Strict Liability

Answer 31

Liability without Fault

Question 32

Liability for Animals

Answer 32

Domesticated Animals:
GENERALLY no strict liability
Exception:
-if knowledge of animals dangerous propensities [that are not common to species]
Exception [to exception]: even if have knowledge no SL to trespassers on land

Trespassing Animals: owner is SL for reasonably foreseeable damage done by their animals trespassing

Wild Animals: Owner is SL to licensees and invitees for injuries caused by wild animals (even if pets)

SL is NOT available for trespassers
-trespasser will need to prove negligence

Question 33

Abnormally Dangerous Activities

Answer 33

Test:
(1) can’t be made reasonably safe through exercise of ordinary care
(2) activity is not commonly used in the community
Ex: anything with explosives, dangerous chemicals etc

SL applies when injury is caused by the dangerous aspect of the activity

Question 34

Products Liability

Answer 34

Could be many claims:
-negligence
-UCC
-misrepresentation/fraud
-could also be SL

Elements for SL:
(1) D is merchant [commercial supplier]
(2) product is defective
(3) product was not substantially altered since leaving Ds control [presumption that ordinary channels of commerce are not alternation]
(4) P was making a foreseeable use at time of injury (this does not only mean INTENDED use)

Times of Defects:
(1) Manufacturing Defects: Product emerges from manufacturer different from others + more dangerous than consumers would expect
(2) Design Defect: Risks associated with product design outweigh utility of design
-P must show that an alternative design would been safer + practical + economically feasible
(3) Information Defect: Hidden risks without adequate warnings/instructions
Adequate =
-prominent
-comprehensible
-provide info about mitigating risk

Question 35

Nuisance

Answer 35

**MUST BE MAJOR + INTOLERABLE*

An invasion of property rights: Private + Public

Private Nuisance: Interference with use and enjoyment of own property
-this includes spite cases–where there are super bright lights or super loud parties
-cannot be a result of the Ps hypersensitivity

Public Nuisance: Act that unreasonably interfers with the health, safety, or property rights of the community

Question 36

Vicarious Liability

Answer 36

Liability that is based on relationship

Employer/Employee: Employer is vicariously liable for any tortious acts committed by their employee if they occur within the scope of the employment relationship [repsondeat superior]
-Detour: employee makes minor deviation from employers business for own purpose = still acting within scope
-Frolic: deviation in time or geographic area is substantial = not within scope = employer not liable

Intentional Torts: are generally outside of scope of employment
-can be within it if employee is acting further employers purposes
-also specific jobs = bouncer, bill collector etc

Independent Contractors: Hiring party is generally not liable for torts
Exception: when a duty is non-delegable–ex: the duty of a business to keep its premises age for customers

Question 37

Multiple D Issues

Answer 37

Joint + Several Liability: P can recover full damages from any D they choose

Contribution: when one D who paid it all seeks contribution from other Ds
Methods:
-comparative contribution
-equal shares
-NOT allowed with intentional tortfeasors

Indemnification: involves shifting the entire loss between or among tortfeasors
Available when
(1) in vicarious liability situations
(2) under strict products liability for the non-manufacturer
-they can get fully reimbursed

Question 38

Loss of Consortium

Answer 38

Claim by spouse of injured party, derivative of injured party’s claim
Claiming loss of:
-household services
-companionship
-sex

Question 39

Defamation

Answer 39

(1) Defamatory statement that specifically IDs D (with name or not)
(2) published to 3rd party
(3) falsity
(4) fault
(5) damage to Ps rep

Defamatory statement = any statement that adversely affects [s rep–NAME CALLING IS NOT ENOUGH
-generally opinion is not actionable but it is if it implies based on facts

Publication: must be at least one other person
-the more sharing = the more damages
-this can be intentional or negligent

Falsity: P has to show that statement is false

Fault on Ds part: degree of awareness that D had of falseness of statement
-if reasonably believed was true is not defamation

Living Person Requirement: must be alive

Group Defamation:
Small group = everyone has claim
Large group = no one has claim

Public Figure [regularly in public eye]: must show actual malice
-means that (1) knowledge that the statement was false or (2) reckless disregard as to whether it was false
SUBJECTIVE

Private Person involving matter of public concern: only negligence must be show

Question 40

Libel

Answer 40

Defamation in “permanent form” [written, recorded etc] = damages are presumed [no proof needed]

Question 41

Slander

Answer 41

Spoken defamation

Slander Per Se: words so clearly defamatory that ordinary person would understand injury = damages presumed
-adversely reflect on Ps business/profession
-state that P has committed a serious crime
-assert that P has engaged in serious sexual misconduct
-state that the P has a loathsome disease

If none of these = must show economic harm otherwise it is dismissed

Question 42

Defenses to Defamation

Answer 42

Consent = complete defense

Truth = complete defense

Privilege:

ABSOLUTE PRIVILEGE
-communications between spouses
-remarks made during judicial proceedings, by legislators during proceedings [lawyers + witnesses too]

QUALIFIED PRIVILEGE
Can be lost through abuse
These privileges are available on a case by case basis when there is public interest in encouraging candor [statements made in good faith + within scope]
-references + recs
-reports of public hearings/meeting
-statements made to those who are to take official actions
-statements made to defend ones own actions, property or rep

Common Interest Privilege: qualified privilele for statements made to collegaues in same company

Question 43

Invasion of Right to Privacy

Answer 43

Potential Wrongs
(1) Appropriation of the Ps picture or name [for commercial purposes]
(2) Intrusion on the Ps affairs or seclusion
(3) publication of facts placing the P in a false light
(4) public disclosure of private facts about P

(2) an invasion of Ps seclusion that would be highly offensive to reasonable person necessary [need to be in a place with an expectation of privacy]
(3) False light: Dissemination of material falsehood about P that would be highly offensive to reasonable person [also can be defamation!]
(4) Disclosure: widespread dissemination of confidential info about P not of legit concern to public + highly offensive to reasonable person [must be a truly confidential fact–not already shared]

Exceptions:
Re Appropriation: newsworthiness: putting pic in paper OK
-not limited to celebrities

Defenses:
Consent
Absolute/Qualified Privilege
Absolute/ Qualified Privilege for False Lights