III. Intentional torts
A. General rules;
1. extreme sensitivity of P is ignored as an element
2. General rule: if fulfill elements, no incapacity defenses
B. Kinds
1.
a. D commit harmful or offensive bodily contact
1) Offensive= unpermitted by normal person
2) Contact= with P’s person
a) Includes anything P is connected to (touching, holding, sitting on).
2. Assault
a. D placed P in apprehension of immediate battery
b. Apprehension
1) Not fear, rather knowledge/awareness
2) What If D lacked ability to follow through? Judge from P’s point of view
c. Immediate
1) Mere words, not immediate enough
a) Assumes people are all talk, no action
2) NEED conduct, physical conduct of threatening or immediacy (90% of time is weapon)
3) Sometimes even when conduct, words can destroy immediacy
a) i.e. Words promising action in the future
3. false imprisonment
a. elements
1) act of restraint
a) omission fulfills if there is a duty to act
b) threat fulfills (if plausible/realistic)
c) NO need physical act
d) NEED P knows or is harmed by it
2) P confined in bounded area
a) Not if reasonable means of escape
(i) That p could reasonably find
(ii) Not if dangerous, disgusting, humiliating
b) Must be bounded in all 4 directions (circle ≠ line)
4. intentional infliction of emotional distress
a. emotional bullies
b. outrageous conduct by D
1) outrageous
a) not mere insults or swearing
b) hallmarks
(i) continous or repetitive
(ii) D is common carrier (airline etc.) or innkeeper
(iii) P is member of fragile class (obvious)
(1) Little children
(2) Elderly
(3) Pregnant women
c. P suffers severe distress
1) That a normal person would (unless D knows about P’s fragile state)
2) Jury determination
3) Facts may negate (mildly annoyed)
IV. Property torts
A. trespass to land
1. motives don’t matter
2. No need harm
3. elements
a. act of physical invasion by D
1) on purpose
2) physical
a) not odor, noise, lights
3) act=
a) projects, propels, throws or
b) enters on foot or vehicle
b. land
1) include air above and soil below (reasonable distance)
B. trespass to chattels
1. private torts for vandalism/thefts..
2. intentional interference with personal property
a. interfearance=
1) damage or
2) taking away
b. personal property
1) everything you own except land and attached stuff
3. remedies
a. damages/ cost of repair
C. conversion
1. same as trespass except DAMAGE so severe
2. special remedy
a. forced sale
b. P gets full market value
V. Affirmative defenses
A. consent
1. capacity to consent;
a. D doesn’t need capacity to commit,
b. Does P have capacity
1) Yes
2) Children- capacity to consent if age appropriate
c. How
1) Express-
a) Words spoken/written
(i) NOT if consent gained through duress/fraud
2) Implied
a) From custom (subway/sports)
b) Use D’s reasonable interpretation of P’s objective conduct
(i) P’s actual thoughts (not going to consent to this) irrelevant
d. Scope
1) All limited, if exceed as if not consented.
B. protective privileges
1. show
a. proper timing (immediate)
b. reasonable belief that threat is in progress
1) ok if reasonable mistake
c. response limited to necessary degree of force
2. kinds
3. self defense
a. if life threatening, ok to use deadly force
4. defense of others
a. if life threatening ok to use deadly force
5. defense of property
a. never ok to use deadly force
b. shopkeepers privilege
1) ability of merchant to detain suspected shoplifter
c. what you can’t do directly, can’t do indirectly (spring gun)
C. necessity doctrines
1. applies to three property torts
2. is an absolute privilege
3. kinds
a. public necessity
1) emergency
2) to protect community as whole or significant group of people
3) Altruist
b. private necessity
1) emergency
2) when act is soley to benefit himself or his property from destruction or serious injury
3) must pay for any damage/injury caused
4) Not liable for nominal /punative damages
5) Right of sanctuary
a) Entitled to remain on land in position of safety until danger passes
b) ≠ privilege to eject/expel trespasser while emergency
VI. Defamation
A. elements
1. D made defamatory statement that specifically identified P
a. test; tend to adversely affect P’s reputation
1) reputation for
a) truthfulness
b) peacefulness
c) professional competence
d) loyalty
e) personal/sexual morality
b. NOT mere name calling
c. need allegation of fact
2. D published statement
a. to more then just P
b. re-publishers as liable as D (based on number of circulation)
c. not have to be on purpose,
d. Has to be D doing the publishing
3. P damages
a. No need to prove in liable cases (written/permenant)
b. No need to prove for slander (spoken) per se
1) Re;
a) Profession/business
b) Loathsome diseases
(i) Leprosy
(ii) Venereal disease
c) Crime of moral turpitude
d) Unchaste woman
c. NEED for slander
1) Some damage,
2) Some harm
3) Not just emotions, feelings or social statute
B. Prove fault?
| VII. P | VIII. Concern | IX. Fault | X. damages |
| XI. Private | XII. Private | XIII. No fault needed | XIV. Presumed damages XV. +punative |
| XVI. Private | XVII. Public | XVIII. Negligence XIX. Behave w/ reasonable care | XX. Damages for actual injury |
| XXI. Public | XXII. public | XXIII. Actual malice XXIV. Knew false or reckless disregard | XXV. Presumed damages + punative |
1.
B. Affirmative defenses
1. consent same
2. truth (burden on D)
3. Privilge
a. Absolute
1) Based on status of D
a) Spouses
b) Govt officers in official duties (judicial- lawyers and witnesses also)
b. Qualified
1) Public interest promoting candid disclosure
a) Ltrs of recommendation, statements to police
b) Limited to relevant material
c) NOT if deliberate
d) D must have reasonable belief that information accurate
XXVI. Privacy law
A. 4 causes of action
1. Appropriation
a. D’s use of P’s picture/name
b. exception;
1) newsworthy
2. Intrusion
a. invasion upon P’s affairs or seclusion (wiretapping, electronic surveillance)
b. no requirement of D trespass
c. objectionable to a resoanble person
d. only if reasonable expectation of privacy
3. Publication of facts placing P into false light
a. psychological damages
b. when widespread dissemination of major or material falsehood about P
c. no need bad faith, no fault requirement
d. gossip
e. objectional to average person
4. Public disclosure of private facts about P
a. widespread dissemination
b. underlying information is truthful but intimate, sensitive, private
1) truly private- medical records etc.
2) not if two public realms of life that don’t know each other
c. blabber mouth
B. affirmative defenses
1. consent all four
2. privileges
a. applies for false light and disclosure
b. otherwise same as above
XXVII. fraud
XXVIII. negligent misrepresentation
XXIX. inducement to breach contract
XXX. negligence
A. elements
1. duty
a. = legal obligation to act
b. to whom owe duty?
1) Foreseeable victims of your own carelessness
2) ≠ to unforeseeable victims
a) Railroad package
3) Rule;
4) Exception;
a) Rescuers
c. Standard of care?
1) Default; Reasonable Prudent Person
a) Live in jury head
b) Under similar circumstances
c) No allowances for d’s personal characteristics, personal circumstances, or knowledge
d) OBJECTIVE
2) D’s special knowledge
a) Make standard higher based on D’s knowledge
b) Isolated factual nugget or
c) Body of skill/info
3) D’s physical attributes
a) Customize standard based on disability.
(i) Blind
(ii) Deaf
(iii) Wheelchair etc.
4) Children
a) Under 4
(i) NO care required
b) Ages 4-18
(i) Customize “care of reasonable child of similar
(1) Age
(2) Experience
(3) Intelligence
(4) Under same circumstances
(ii) Exception;
(1) Adult activities
(2) Do not customize
(3) Usually vehicle with an engine
5) D is a professional
a) Examples
(i) Lawyer, accountant, architect, engineer, doctor, medical professional etc.
b) “owes care of average member of that profession practicing in similar community”
c) Standard of care = set by custom (be a conformist)
6) D is a property owner and P hurt on real estate
a) IF undiscovered trespasser NO DUTY
b) Hurt by activity
(i) Reasonable prudent person
c) Hurt by condition
(i) Discovered trespassers if condition is;
(1) KNOWN MANMADE HIDDEN DEATH DRAPS
(2) Artificial
(3) Highly dangerous
(4) Concealed
(5) D knew about it
(ii) Licensee/social guest ≠ business
(1) KNOWN TRAPS
(2) Concealed
(3) D knew about it
(iii) Invitees/business-open to public
(1) REASONABLY KNOWABLE TRAPS
(2) Concealed
(3) D knew about or should have discovered through reasonable inspection
d. Other rules
1) Firefighters/police officers (licensees)
a) NEVER allowed to recover for injuries that are inherent risk of job
2) Attractive nuisance
a) Child trespasser and artificial condition
(i) Weigh how likely children will trespass
(ii) How likely those children can protect themselves
3) Satisfy duty
a) Fix problem
b) Adequate warning (negates hidden)
e. Statutory standards of care
1) P can borrow words of criminal or regulatory statute for duty of care IF
a) Class of person, class of risk
2) Then
a) Evidence of statute violation is negligence per se
3) Exception
a) Test met but still don’t use if
b) Statutory compliance would have been more dangerous then violation
c) If statutory compliance was impossible under the circumstances
f. Duties to act affirmatively
1) NO generally
a) But if choose to rescue =duty to rescue as
(i)
2) Exceptions;
a) If D put P in peril then duty to rescue
(i) Even then duty to rescue is only as
b) If D and P have pre-existing relationship
(i) Common carrier/client
(ii) Land possessor/invitee
(iii) Any other legal relationship.
g. Special Harms
1) Negligently inflicted emotional distress
a) D breaches other standard
b) But no direct trauma to P
c) Instead emotionally disturbed, bummed out etc.
d) FEAR Recover if
(i) NEGLIGENT committed negligence and
(ii) NEAR MISS zone of physical danger
(1) Almost got hurt/near miss
(iii) OBJECTIVE EVIDENCE subsequent physical manifestation
(1) After accident
(2) Something diagnosed objectively (3rd party/machine etc.)
e) GRIEF recover if (bystander case)
(i) D hurts person A
(ii) B can recover if:
(1) Close family relative
(2) Present on scene and observe accident
2. breach
a. also called wrongful conduct
b. identify wrongful conduct with facts
c. tell why it was wrongful (argue)
1) “and that is not reasonable because”
2) Use cost benefit analysis or
3) What other people do
d. Back up;
1) Res ipsa loquitur (probability theory)
a) Where P lacks direct evidence/information of breach
b) Need
(i) USUALLY CAUSED BY NEGLIGENCE Accident causing injury of a type not normally associated with some kind of negligence
(ii) MUST HAVE BEEN D Negligence attributed to D
(1) Instrumentality exclusive control of D
(2) Normally would have been D or d’s employees.
3. causation
a. Actual/factual
1) But for D’s breach, P wouldn’t have been harmed.
2) Multiple D’s
a) TWO FIRES; substantial factor test
(i) Use when merged causes
b) TWO GUNS burden of proof to D
(i) Use when alternative causes
b. Proximate
1) Legal limitation/fairness check
2) Apply if result freakish/bizzare
3) D liable if P’s harms foreseeable
4) In Direct; if intervening act was foreseeable
a) Foreseeable if
(i) Intervening medical negligence
(ii) Acts of rescuers
(iii) Intervening protection or reaction forces
(iv) Subsequent disease or accident caused by original injury
4. damage
a. Once fulfill all other elements
b. TAKE P AS YOU FIND P
c. Eggshell skull doctrine
d. Not limited to negligence
5. affirmative defenses
a. contributory negligence- if P shared some fault no recovery
b. implied assumption of risk- if P assumed no recovery
c. comparative negligence
1) Burden on D
2) That P failed to exercise
3) Jury finds % of fault for each litigant
a) Pure
(i) Recovery reduced by P’s fault
b) Modified/partial
(i) Only recover if P’s fault under 50%
(ii) then recovery reduced by P’s fault
XXXI. strict liability
A. injuries caused by animals
1. domesticated animals
a. strict liability if knowledge of vicious propensity
b. bite 1 = negligence
c. bite 2+ = strict liability
2. trespassing cattle
a. strictly liable
3. wild animals
a. strictly liable
b. d’s precautions legally irrelevant.
B. Ultra hazardous activities
1. strictly liable
2. elements
a. can’t be made safe
b. risk of severe harm
c. uncommon
3. examples
a. explosives
b. dangerous chemicals
c. radiation/nuclear energy
C. injuries due to products
1. other ways to sue besides strict liability
a. intentional
b. negligence
c. implied warranties etc.
2. strictly liable if
a. D is merchant
1) Service providers NOT for side products
2) Commercial rentors are merchants
3) Every merchant in chain
b. Defect
1) Manufacturing
a) Worse then normal
2) Design
a) Can be made safer w/o much more $ or trouble
3) Inadequate warnings
a) For hidden danger
b) Or if no warnings
c. Existence of defect with left D’s control
1) Presumed if new
2) Can show if used
d. P’s use was foreseeable
1) Not limited to proper use
D. Affirmative defenses
1. comparative responsibility
a. same as comparative fault
XXXII. nuisance
A. interference with P’s ability to use and enjoy property to unreasonable degree
1. to determine unreasonable degree weigh equities
2. public- public health peace, safety or convenience (P=govt)
3. private- interference with quiet enjoyment (P is private landowner)
XXXIII. vicarious liability
A. doctrine of last resort
B. liable even if not negligent if
1. Employee
a. Liable if within scope of employment unless intentional tort
1) Even then liable if
a) Force part of job
b) Friction part of job
c) Furthering business by act
2. independent contractors
a. NO unless land possessor if independent contractor hurts invitee
3. car borrowers
a. No unless.. if driver doing errand for owner
4. parent child
a. no but still liable for own carelessness
XXXIV. co-defendants
A. If P won and D’s jointly and severable liable
B. Then D has to pay all and can recover from other d’s % adjusted by jury
C. EXCEPT can recover
1. out of pocket party is vicariously liable from tortfeaser
2. strict liablility products case
a. Any D who is not manufacturer from manufacturer
XXXV. Loss of consortium
A. Where victim of tort married
B. Uninjured spouse gets 2nd cause of action (independent)
C. Damages include
1. loss of services
2. loss of companionship
3. loss of sex
