Intentional Torts
Intent
MUST SHOW ON ALL INTENTIONAL TORTS.
Specific Intent: Conscious desires to cause the consequences of his act, knowledge that the result will occur and volitional act.
Transferred Intent: can be transferred. Also intent can be transferred from tort to tort to meet the intent requirement.
Can be transferred between 5 torts: assault, battery, false imprisonment, trespass to chattel and land
Substantial Certainty: Δ knows w/ substantial certainty conduct will cause the result
Insane people – Liable. Child/Mentally Incapacitated – maturity, experience and training
Battery
Harmful or offensive touching to another person, without consent or privilege.
direct or indirect contact
anything connected to Π is sufficient
Look for trespass to chattel when they grab of the body (purse)
Assault
Placing another in reasonable apprehension of imminent harmful or offensive contact to another without consent or privilege
Conditional threat negates apprehension
Reasonable person test, not fear just apprehension, actual apprehension.
words alone are not enough
need awareness and future threats
False Imprisonment
Intentional physical or psychological confinement of another within fixed boundaries for a period of time, without consent or privilege.
invalid use of legal authority is sufficient, police words are ok.
Π must be aware of the confinement, can be unconscious and recover
there must be no reasonable means of escape
Future threats are not valid
Intentional Infliction of Emotional Distress
Calculated to cause and extreme and outrageous conduct that results in severe emotional distress
conduct can be intentional or reckless
look for conduct that is continuous, directed at a certain class of Π, or committed by a certain type of Δ
“Bystander”: can recover if present when injury occurred, close relative of injured person, and A knew this, must show intent to cause harm
Children, elder and pregnant acts on sensitivity, handling dead bodies.
Trespass to Land
Intentional entry upon the land of another without consent or privilege.
invasion can be by a person or object (not intangible matter- see nuisance)
real property includes reasonable amount of airspace and subterranean space
A need only intend to enter the land – mistake is no defense
If asked to move items and not move items from property
Must have actual or right to immediate possession
Trespass to Chattels
Intentional interference w/ another’s right of possession w/o consent or privilege
interference can be intermeddling (damaging) or dispossession
remedies: Diminution in value or cost of repair and/or reasonable rental value
Mistake is no defense
Conversion
Intentional exercise of wrongful dominion and control over the chattel of another without consent or privilege
- a) More than interference
- b) Look for more than one conversion
- c) Innocent converter even receiving stolen goods
- d) Remidies – Nature of judgment amounts to forced sale – defendant required to pay full market value of chattel. Replevin and Detinue
Defenses
Consent
Consent must be valid (person must be competent); Δ must not exceed the scope of the consent; express or implied
Self-Defense
Reasonably believe being or about to be attacked (reasonable mistake OK); can use reasonably force to protect against injury
Can use deadly force if believes life is in danger.
No privilege if danger passed
Defense of Others
Reasonably believe that the other person could have used force to protect himself (reasonable mistake OK); can use force that is reasonably necessary to protect oneself
Defense of Property
Can use reasonable force to prevent commission of a tort
Defense only available before and during commission of the tort (hot pursuit)
must first request to desist or leave, unless it would be futile
privilege supersedes the defense
deadly force is not reasonable
Necessity
Public – Invades plaintiff’s property in an emergency to protect community, public, and or group. Absolute defense.
Private – Invades plaintiff’s property in an emergency to protect own interest. Must pay for any damages to plaintiff’s property.
Privilege of Arrest
Shopkeepers may have the privilege to reasonably detain individuals whom they reasonably believe to be in possession of “shoplifted” goods.
Must have reasonable suspicion.
Discipline
Parent or teacher (in loco parentis) may use reasonable force in disciplining children.
Legal Authority
Felony – Police officer – reasonable grounds of belief felony committed even if no felony. Misdemeanor – Police – breach of peace and believes the person committed. Felony – Private Citizen – reasonable grounds to detain if felony has been committed. Misdemeanor – Private Citizen – breach of peace must be committed before detaining
Recapture of Chattel Wrongfully Held
Reasonable force as long as entitled to chattel, demand must be made and fresh pursuit.
Entry To Abate a Nuisance
Privileged to invade land or chatter of another to stop a private nuisance created or maintained on the land or chattel. D must be owner, must make demand, must enter reasonable time and manner.
NEGLIGENCE
Definition
Defendant may be liable to plaintiff for Negligence if it can be determined that the defendant owed a duty of care to the plaintiff, defendant breached the duty, and the plaintiff suffered damages which were actually and proximately caused by defendant’s breach.
General Duty
Defendant creates an unreasonable risk of harm where the Plaintiff is foreseeable and is in the zone of danger. Minority view everyone is in the zone of danger.
Standard of Care
Reasonable Person Standard of care: Reasonable person under the same or similar circumstances would not have acted in the manner.
Custom is not considered a standard but failure to comply with customs may be negligence
Adults with disabilities – reasonable person with their disability. Mental Disabilities – No allowance, Retarded adults reasonably in light of diminished capacities unless engaged in dangerous adult activities.
Professionals: knowledge and skill of member of the profession in good standing in similar communities. Specialties – National Standard. General practioners – Local Standard.
Children: Child under the age of 4 not liable over the age 4 compare to child of like age, education, experience and intelligence. If engaged in adult activities then held to adult standard.
Common carriers/innkeepers: higher degree of care for passengers/guests
Vehicle driver: only owes duty of ordinary care to passenger
Special Duty
Violation of Statute (Negligence per se)
Is there a statue
Did the defendant violate the statue
Class of persons statue is protecting
Type of harm statue intended to protect against
Guest Statute
If P is a guest must show gross negligence recklessness on the part of the driver in order to recover.
Omission to Act
No duty to aid another in emergency unless:
Injured by D
Special relationship (wife, child),
Statutory Duty to act
Contractual Duty
Starts to help but puts them into a worse position.
Landowner-Occupier Duties
Duties owed to persons outside land
1) No duty as to natural conditions, exceptions – Urban areas (tress hanging over). Minority Reasonable care.
2) No duty artificial conditions except – condition abates adjacent land and has duty maintain and reasonably inspect.
Duties coming onto land
Undiscovered Trespasser – No duty;
Trespasser – Known/Anticipated D must use due care if he knows of trespasser is present. If he knows must post signs and give notice and warnings.
Children (Attractive Nuisance Doctrine)
Must go through all points
Artificial condition creates unreasonable risk of harm
Knew or should have known that children are likely to trespass
Children unable to recognize danger because of youth
Utility of maintaining the condition vs. eliminating risk
Licensee
Duty to make safe and warn of known dangers.
Those entering with permission but not for the purpose for which the property is maintained. (social guest, fire fighters, police, officials).
Invitee
Duty to inspect, make safe and warn of known dangers.
Those entering with permission for which the land is maintained. Public – enter land for the purpose for which land is open (store). Business – enter land for business dealings with occupier.
Lessors of Land
Duties owed by lessors of land – CL landlord owes no duty to person coming onto land with the consent of lessee. Can be sued if landlord knew of dangerous conditions on property, Duty to warn or repair conditions dangerous to persons outside the premises.
Negligent Infliction of Emotional Distress
In addition to duty and breach, must show:
Non By Standard – Foreseeable risk of physical injury (impact/threat) that might foreseeable result in emotional distress. Majority – Must be in zone of danger. Exceptions are mishandled corpse. Erroneous Telegram.
For By-Stander to recover: Π present at scene when family member was hurt.
Breach
Breach of duty occurs when the defendant’s conduct falls short of that level required by the applicable standard of care owed to the plaintiff.
4 ways to show Breach
Direct – Failed to meet standard, exposing others to unreasonable risk of harm
Circumstantial – showing the evidence, inference.
Violation of Statue
Res Ipsa Loquitor
Accident does not normally occur absent negligence
Does D have exclusive control
Inference of Negligence
Actual Causation
Actual: “But For” test;
Concurrent – Separate negligent acts occur and P injured but for the concurrence (both D’s laible).
Joint Tortfeasors – Several defendants engaged in negligent conduct, all held liable even if one caused injury.
Successive tortfeasors – Act independently and have caused successive impacts.
Substantial Factor test (for joint causes); Where several causes bring about a injury, and any one alone would have been sufficient to cause the injury, defendant’s conduct is cause in fact if it was a substantial factor in causing the injury.
Alternative Liability (burden shifting) – two negligent defendants where only one of the two was responsible, the other is not, but it is unknown which defendant caused the injury.
Proximate Causation
Is the injury foreseeable.
Conduct will be deemed to be the proximate cause of harm if the harm was a foreseeable result of the conduct, and if the harm was not brought about by an extraordinary or unforeseeable sequence of events.
Direct causes – uninterrupted chain of events, no intervening cause, Foreseeable results.
An eggshell thinned skull case (defendant takes the person of plaintiff as he finds it) is not an unforeseeable result case.
Indirect causes – An indirect cause is one where after the first negligent act but before the injury there is an intervening affirmative act on the part of a third party or act of God. If the intervening act is foreseeable then the defendant will be held liable.
Criminal Acts cut off liability unless it is foreseeable. If it is act of God not liable
Liable for injuries to rescuers.
Damages
General Damages – Past, present and future pain and suffering
Special Damages – Past, present, future economic losses, medical bills, loss of wages and profits. Pure economic not allowed.
Personal Injury – Plaintiff is to be compensated for all damages (past, present and future), both special and general.
Property Damages – Measure of damage is reasonable cost of repair or, if property nearly destroyed, fair market value at time of accident.
Punitive Damages – Plaintiff may recover punitive damages if defendant’s conduct is wanton, and willful, reckless or malicious.
Duty to Mitigate – Plaintiff has duty to take reasonable steps to mitigate damages (seek appropriate treatment).
Collateral Source Rule – Damages are not reduced just because plaintiff received benefits from other sources, eg health insurance.
Loss of Consortium – requires loss of companionship and intercourse between wife and husband. Minority to parents/child and grandparents.
Multiple Defendants – two or more joint tortfeasors liable for entire amount.
Contributions – Each joint tortfeasors liable for other tortfeasors proportionate share if one torfeasor pays full judgment.
Indemnity – One secondary liable is entitled to indemnification against defendant primarily liable.
Satisfaction – Recovery for full sum from one joint tortfeasor bars recovery from other torfeasor.
Release – CL release one release all. Majority – Release one does not release all.
Defenses
Contributory Negligence
P contributes to his or her injuries. Common Law bars recovery.
Comparative Negligence
Compares the Negligence of plaintiff and defendant solely in terms if blameworthiness and apportions the damages accordingly.
Pure – recovers no matter how great the negligence. Recovers for what the others are liable subtract P’s liabilty. Ex. Total damages is $10,000, P is liable is 20%, two D’s each liable 40%. P collects $8,000.
Partial – Denied if equal or more than defendant.
Last Clear Chance doctrine (P uses this as a defense if P is liable for contributory negligent).
If the defendant had a “last clear chance” to avoid the accident and because defendant did not take the “last clear chance”, plaintiff should be relieved of the consequences of his earlier contributory negligence.
Assumption of Risk
P voluntarily proceeded having knowledge and comprehension of the risk. Rescuer never assumes risk. (express or implied)
Survival Statute
Survival Statute – CL – No cause of action. ML – Allow cause for injuries to property and person to survive death for pain, suffering, medical, lost wages. Same as PI but cut off at death. Victim dies instantaneously no pain and suffering. Defamation and ect not available.
Wrongful Death
Wrongful Death (by statute) – Same as above but brought by estate.
Strict Liability
Animals
Domesticated – Defendant has knowledge of the danger propensities of the animal; one free bite and then put on notice.
Wild – Strictly liable for harm to another animal, chattel or person even if D used the utmost care. Liability for only dangerous propensities.
Zoo – look for negligence. Trespassing cattle – strict for trespass and damages. Trespassers – warning if dangerous animal.
Duty – Owed to Foreseeable plaintiff from the kind of danger anticipated
Breach – breached an absolute duty to make sage.
Actual and Proximate Causation
Damages – must be more than economic recovery.
Defenses – Assumption of Risk and Contributory and Comparative
Ultra Hazardous Activity
One who maintains an abnormally dangerous condition or activity on his or her premises, or engages in an activity that involves a high risk of harm. Must go through all 4 points.
(1) Is there a risk of serious harm; (2) Cannot be performed without such risk; (3) Not commonly engaged in that community, (4) Balance – danger vs. value to community.
Duty – Owed to Foreseeable plaintiff from the kind of danger anticipated
Breach – breached an absolute duty to make sage.
Actual and Proximate Causation
Damages – must be more than economic recovery.
Defenses – Assumption of Risk and Contributory and Comparative
Inherently Dangerous Condition
Inherently Dangerous Activity: Ultra-hazardous activity triggers vicarious liability (i.e., respondeat superior)+independent Contractor.
Duty – Owed to Foreseeable plaintiff from the kind of danger anticipated
Breach – breached an absolute duty to make sage.
Actual and Proximate Causation
Damages – must be more than economic recovery.
Defenses – Assumption of Risk and Contributory and Comparative
Vicarious Liability
Employer is vicariously liable for the torts of an employee that occur within the course and scope of employment.
Look Frolic way out of scope and detour short time but can be foreseeable. Is it furthering the Employers business.
Independent contractors (principal not liable unless inherently dangerous activity or duty is non-delegable)
Partners/joint ventures (liable for conduct committed in scope and course of partnership/venture);
Automobile owner not liable for conduct of driver (unless imposed by “Family Car” lends to family or “Permissive Use” doctrine, lends to person who commits a tort)
Parents are not vicariously liable Childs tortuous conduct. However if parent knows of children’s wrongdoings, or fails to exercise proper control, or had notice (can be liable for negligent supervision of child)
Product Liability
Strict Product Liability
Seven Step process must go through all: 1) Type of defects, 2) Commercial Seller 3) Inherently Dangerous, 4) Defective when it left sellers hands 5) Foreseeable Use by P 6) Causation 7) Defenses
Type of Defects
There are three types of defects Manufacturer Defect, Defective Design, Warning Defect.
Manufacturing Defect – One of the product differs from all others products on the assembly line that makes it dangerous.
Design Defect – The product was not safe for intended use and product could have made safer in a cost effective way. Alternative design available.
Warning Design – Failure to warn of non apparent danager that a consumer should have been warned of.
Commercial Seller
Is the distributor/seller/manufacturer engaged in the business and sells/rents that product.
Inherently Dangerous
Two test to determine that the product is inherently dangerous. The two test are consumer expectation test and Risk vs. Utility.
Consumer Expectation Test – The product is more dangerous than an ordinary consumer would reasonably expect.
Risk vs. Utility – Risk of the product vs the cost to change the product. Were there alternative designs available at a minimum cost.
Defective when sold
The product was defective when it left the hands of the distributor/seller/manufacturer.
Foreseeable use by P
P made foreseeable use of the product. If it is not for what the product was made for then it is valid defense.
Causation – Actual and Proximate
Defenses – Misuse a defense, with other defenses
Negligent Product Liability
Duty – Foreseeable consumer use defective productive. Reasonable inspection would reveal the defect.
Standard of Care – Reasonable distributor/seller/manufacturer would act in the same or similar circumstances.
Breach – Defective product failed to meet the ordinary commercial expectations of the average reasonable consumer. Also state what type of defect. (Manufacturer Defect, Defect in Design, Defective Warning).
Causation – Actual and Proximate, Argue the use, but if foreseeable then still the cause.
Damages – Person and Property. Punitive if reckless.
Defenses – Contribution, Comparative, Assumption of Risk. NO MISUSE
NOTE: Retailers are strictly liable as they are in the marketing chain. However they are not liable for Negligent product unless they had knowledge or notice (complaints and open products)
Warranties in Product Liability
Express Warranty
Statement of fact or promise by a commercial seller creates an express warranty that becomes part of the basis of the bargain.
Implied Warranty
Implied in law from seller to buyer in which a contract must exist between each party.
Implied Warranty of Merchantability
Goods are of fair & average quality; fit for normal us. Look to similar products on market, fit for intended purpose with emphasis on safety.
Implied Warranty of Fit for Particular Purposes
Product must be fit for its intended use and
Buyer must rely on seller’s special knowledge and skills
Intentional
P will have to establish that manufacturer/distributor/supplier knew that the product would cause harm.
Misrepresentation
Commercial seller is liable for material misrepresentations of fact. Justifiable Reliance.
Intent Battery
Commercial seller is liable for injuries caused by an unsafe product if Δ intended the consequences.
Must show D intended the consequences (substantial likelihood test)
CROSS OVER TORTS
Nuisance
Private: Substantial and unreasonable interference with anothers use or enjoyment of his land. Substantial (offensive to average person in community), Unreasonable (balance severity with harm) interference with use or enjoyment (not possession) of private property
Public: Unreasonable interference with the general public: health, safety, or property rights of the community
Remedies: damages; injunction; abatement by self-help (for private nuisance; after notice)
Defenses: legislative authority; conduct of others; “coming to the nuisance” (for purpose of bringing harassing lawsuit)
Misrepresentation
Intentional Fraud or Deceit – Misrep of an existing material fact made knowingly, with the intent to induce P’s reliance, causing P to justifiably rely to his damage. Active Concealment, Knowingly for deceit.
Liability extends to those whom D intended to induce.
Damages – Benefit of the Bargain – Between actual value received and what have been received had representation been true. Out of Pocket, Punitive Damages.
Negligent Misrepresentation
A false misrepresentation of a material fact which is made with a lack of due care intended to induce reliance to, which cause damages.
Special business relationship or contractual relationship
Liability extends to those whom D intended to induce.
Damages out of pocket cost.
Injurious False Hood – Trade Libel
Makes disparaging comments about a business products, services, or relationships which negatively affects the plaintiffs business.
Must prove loss of customer and business.
Interference with Business Relations
Substantial interference with a contract of another’s that causes a breach.
Interference with Prospective Advantage
Interference with something expected (job, money)
Malicious Prosecution
Must go through all steps.
Institution of legal proceedings (criminal, civil or calling the police).
Termination of previous case in P’s Favor
Absence of probable cause
Improper ulterior purposes
Damages
Abuse of Process
Wrongful use of process for an ulterior purpose, and definite act or threat against plaintiff in order to accomplish an ulterior purpose.
Defamation
P must prove that the statements are defamatory (false), published to a third person, understood by a 3rd person, and that P suffered damages.
Defamatory Statements
False factual assertions not protected
Opinions bearing public concern are protected
Does it lower the persons reputation in the community
Published to a 3rd Person
Intentionally tells them or prints it.
Negligently where it is overhead by someone
Understood by a 3rd person (of and concerning P)
Innuendo – meaning that results from the statement
Colloquium – No specific mention of P, but inderictly is mentioning P. P must prove it is P that D is talking about.
Groups – Large group cant prove of and concerning P
Small Group – If it targets whole group liable, if not the whole group then must prove it by showing reasonable person would know that they are defaming P.
Damages
Slander
Slander is spoken defamation. Plaintiff must prove special damages, unless special damages falls within the slander per se categories CLUB: Crime, Loathsome Disease, Unchaste woman, Business ones conduct in profession.
Libel
Is written or printed publication of defamatory language. Need not prove special damages and general damages are presumed.
Republisher Liability – Anyone who takes part in the publication and furthers may be liable.
Retraction – May limit amount of general damages recoverable
Constitutional Privileges
Public Official/Figure
P must prove actual malice (knowledge of falsity or reckless disregard for the truth) New York Times
Private Figure
Matter of public concern: Π must prove falsity AND negligence with actual injury; Π must show malice to recover punitive damages
Matter of private concern: Π must only show negligence with actual injury; Π can recover punitive damages without showing malice
Defenses
Truth
Consent
Absolute Privilege – Protected speech when made during judicial and legislative proceedings or by officers of the government, between spouses.
Qualified – Speech occurs during a socially useful purpose. The comments must be relevant to the purpose, good faith an loses the privilege if exceeds the publication. It applies to letter of recommendations, credit evaluation, police.
Invasion of Privacy
Torts: must show causation (“AFLIP”)
Appropriation of Name/Picture: unauthorized use, unjust enrichment Appropriation of plaintiff’s picture or name for commercial advantage
Intrusion Upon Seclusion/Affairs: Unreasonable invasion of another’s reasonable expectation of Privacy. Public places no intrusion
False Light: Unauthorized use of P’s name or likeness attributing to him/her ideas which are false, Knowledge or reckless disregard as to the falsity, highly offensive to reasonable person, Truth Valid defense.
Public Disclosure of Private Facts: disclosure of private information that would be objectionable to a reasonable person if the matter is public interest, then probably need to show malice
Damages – No requirement of special, Injunction.
Defenses: consent; absolute privilege; qualified privilege, Newsworthiness – press can report on matters of legitimate public concern and interest. Truth no defense.
Remedies
Compensatory – put the plaintiff in its original position.
General Damages – flow from tort specific measures
Special (economic) Loss and profit, Reasonable certainty of money amount, proximate cause, remoteness
Punitive – Willful and malicious Conduct
Nominal – For rights