torts II

duty

elements

breach

Causation/proximate cause

Standing/damages

defenses

Negligence- when a person’s conduct, in protecting others, isn’t that of a reasonably prudent person

standard-D must act as a reasonably prudent person under like circumstances

1. Duty 2. Breach of duty 3.Causation/proximate cause

1. what in fact happened 2. that D acted unreasonably

1. cause in fact and 2. proximately caused Purpose of 2 is to limit liability. Let D off hook for harms that caused, but not foreseeable. Cause in fact tests; a. but for b. substantial factor c. indivisible injury also what difference did neg. act make -(boy on bridge with electrical wire) -loss of chance (cts disagree usually need to prove 50%+ chance) Proximate cause; policy (similar to scope of duty) 1.that particular kind of harm must be foreseen disagreement here 2. direct consequence; no need for foreseeability if harm is direct consequence of act. Intervening/LIABLE; another act intervened between d’s act and harm. -poemis rule -rescue doctrine Superceding/NOT CAUSATION; unforeseeable intervening act. Thin Skull rule; if harm is same foreseen then as to amount of harm. “D takes P as finds him”.

survival action-recovery permitted for loss to estate and include damages for pain and s before death. Wrongful death-benefit of survivors who suffer harm from death.(limited to pecuniary loss-may include loss of society, companionship, advice and support) Joint and several liability applied when; 1. consipiracy or concerted action 2. indivisible harm 3. creates an additional harm by another act. 4. vicarious liability 5. other policy reasons; summer v. tice.

Contributory negligence; when conduct by P creates unreasonable risk of harm to P (and combines with D’s negligence to harm P) to ALL -secondary assumption of risk -not complete defense but mitigates. comparative negligence; pure form- doesn’t matter what % of fault p had, can recover d’s %. Modified form; can recover if D’s negligence was 50% or greater.

Factors to consider; -physical disability -children of like age… -unless kids doing adult or dangerous activities -minimum standard of knowledge -AND actual knowledge

Factors; -Custom or usage; Ok if relevant -violation of statute (see per se) -res ipsa loquitor;(presumption of negligence) 1. harm ordinarily not occur in absence of negligence 2. exclusive control by D 3. p or 3rd party did not cause harm

Per se/ statutory violation

Statute designed to protect against this type of harm AND To protect against class which P is member

Did D violate statute?

Trespasser- Those who enter without permission.

Limited duty; -if reason to know of use, then duty to warn of hidden dangers -if child and attractive nuisance, then standard -can’t willfully act to cause injury

PAR to ALL -complete defense IF P knew of the risk and voluntarily assumed the risk. Knowledge implied where the risk is one that reasonable person would be aware. -NO PAR where no reasonable alternative. -NEVER for intentional torts or if statute protects class

Licensees- Includes social guests Many States have abolished this category. Instead use invitee.

Limited duty -if reason to know of danger and that licensee might encounter it, then duty to warn or eliminate

Official licensees subject to firefighter rule; immunity for negligent act if reason for visit. MN abolished rule, uses PAR for foreseeable, obvious risks.

Invitees; business purpose, in scope of invitation, open to public

Standard duty

professionals To use knowledge, skill and care of professional. Factors; 1. specialist/general 2. local v. national practice

1. standard of care 2. that d was negligent in deviating from standard of care 3. deviation was direct cause of P’s harm

to disclose material risks. Informed consent theory/usually medical malpractice cases

1. physician failed to disclose material risk 2. that she knew or should have known about. 3. that risk materialized 4. that reasonable persons in p’s position would not have consented AND p wouldn’t have consented.

To act positively nonfeasance

Limited duty; 1. if d has control over instrumentalitiy of p’s harm 2. if D was responsible for placing P in position of danger (or at risk). 3. special relationship (employor-employee, parent-child etc.) 4. rescue effort; if D leaves p in worse position after beginning rescue effort 5. if no duty to rescue, but does anyway then standard duty.

Good Samaritan statutes; create liability only if willful or reckless behavior

To control 3rd persons

Limited duty; 1. special relationship a. parent/minor b. custodian c. employee… d. mental health professional… e. customer/business f. between d and p or d and 3rd person. 2. D has ability to control 3rd person or warn p at risk 3. alcohol covered under dramshop statutes.

Protect against emotional harm NIED

E motional distress is objective Loss of consortium for spouses. Either 1. zone of danger a. p in zone of danger b. contemporaneously experience fear c. for own safety at moment. 2. bystander rule. a. p present at scene of injury and b. aware of it while occurring c. closely related

Arguments against policy; no real compensation (just wealthy messed up people) and no deterrence.

To unborn children

prenatal injuries ok if child viable at negligent act and born alive. Preconception injuries-maybe ok if causation met. Wrongful birth-ok, damages limited. Wrongful life-child action for economic loss (no pain and s) Wrongful conception- parent’s damages offset by benefits of having child.

Strict liability

Dangerous or abnormally dangerous activities

restatement second §§519-529; strict liability for abnormally dangerous activities 1. creates reasonable foreseeable risk of physical harm 2. risk is significant 3. risk remains even if reasonable care is exercised. COURTS USE DISCRETION lots of inconsistencies. utility co. never strictly liable

not all jurisdictions have accepted restatement second.

generally comparative fault rules apply so affirmative defenses like contributory negligence are partial only.

Products liability; this is for new products. And not for services. Used products; only if re-conditioned/re-furbished. Also only for retail sellers not private other theories for harm from defective products; 1. misrepresentation/fraud (no need for privity) tort based. a. representation of product oral or written (fact not opinion). That was wrong. b. P relied on it c. representation was material Also; d’s state of mind intentional/ reckless /negligent see outline *statutory-consumer protection. In addition to common law cause. 2. breach of warranty; contract law; implied that product not defective. Easier to prove then tort. a. purely economic loss b. consequential economic loss 3. expressed warranty contract law. 4. nuisance; like for gun manufacturers etc.

Manufacturing defect; if product departs from intended design regardless of manufa..care.

1. consumer expectation standard. objective diff. between what cust. Expects and what product delivers 2. res ipsa loquitor-expert testimony used to show defective 3. food cases-difficult issues of proof. Here need to rule out other causes and two tests; a. foreign natural test (chicken bone ok in pot pie) b. reasonable expectation test (what cust. Would have expected ok). *need to prove product reached consumer in defective state.

Which D’s are liable; 1. sellers 2. lessors 3. successor corporations (sometimes, depending on contract) 4. component manufacturers (sometimes, depending on …) 5. NO service providers (difference between service and product).

Who recovers What losses; consumer/ purchasers other users or bystanders if foreseeable to D. what losses; YES personal injury or property damages NOT cost of item (under contract law)

contributory negligence= -Product misuse -Failure to mitigate or avoid damages. -secondary assumption of the risk.

Design defect; if foreseeable risk of harm posed by design could have been reduced by using reasonable alternative design AND omission makes product not reasonable safe. hint; every product same defect

1. risk utility standard; risk of design outweigh utility AND 2. prove feasible alternatives to design - there may be no safe design OR 4. non compliance with safety regulations. (per se) AND 5. manuf…obligated to design for intended use AND foreseeable unintended uses.

-Product misuse -Failure to mitigate or avoid damages.

Inadequate warnings/ failure to warn when foreseeable risk could have been reduced or avoided by provision of warning/instruction and omission makes not reasonably safe.

1. manuf…has actual or constructive knowledge of danger to users. 2. foreseeable use AND misuse 3. warning not there or inadequate a. attract attention to those at risk b. explain mode of injury c. instructions on how to use safely. some jurisdictions use “heading presumption” that p would have acted different had been warned.

-Product misuse -Failure to mitigate or avoid damages. 1. Patent/obvious dangers carry own warnings 2. sophisticated users –no duty to warn 3. learned intermediary. Manuf fulfills duty by warning intermediary (pharmacy etc.) 4. sophisticated intermediary. (employer buys for employee etc.) SI must be well informed and it be reasonable for manu to rely on them. -considerations of recall (financial etc.)

duty/cause of action elements breach cause/proximate cause damages/standing defenses

Defamation; purpose to protect reputation weigh against freedom of speech

libel; recorded in permanent form

1. defamatory statement 2. made to 3rd person 3. of and concerning p

if P= public official or public figure then must show; 1. common law elements AND 2. actual malice (knowing falsehood or reckless disregard) 3. statement false If private figure is P, but issue is Public concern, then must show; 1. common law elements 2. fault in publishing 3. actual damage (varies for state) 4. that statement is false. Private person and private concern then damages can be presumed and D can be held liable regardless of constitutional issues.

p can be whole group, depending on size and statement “whole or most of group”

damages; libel; presumed slander; 1. must be proven (special damages) 2. except for slander per se, when subject regards; a. serious crime b. loathsome disease c. p’s business capability etc. d. serious sexual misconduct

1. Truth; D has burden 2. Constitutional 1st amendment; 3. privilege; -absolute official -qualified official -fair comment -in one’s own interest -report crime -reporting public… 4. to mitigate; harm wasn’t that bad, nobody liked you to start with. 5. retractions statutes; give d chance to retract, make p ask d to. 6. consent

slander; said

Invasion of privacy different from defamation because true, but private or embarrassing. jurisdictions very different in what they recognize.

intrusion-like stalking, etc. physically or otherwise

1. Intentional 2. Reasonable expectation of privacy 3. Highly offensive

-If info disclosed is of public significance or lawfully obtained then can be protected by the first amendment (labor union case) (woman fleeing abusive husband case). Most states don’t recognized

appropriation- protects indiv. identity

1. D appropriates 2. For own use and benefit 3. P’s name or likeness

Public disclosure – protects private info about P

1. Facts about P’s private life 2. communicated to public at large 3. highly offensive to reasonable person 4. matter disclosed not of legitimate concern to public 5. No defamation if facts disclosed are true

False light best used when not exactly false but sort of. *most don’t recognize because too close to slander

1. highly offensive 2. D acts with knowledge or reckless disregard to 3. falsity of publicized matter 4. false light in which p would be placed

Tort Outline for Bar Exam

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. Battery

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; ZONE of danger

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 RPP.

(i)

2) Exceptions;

a) If D put P in peril then duty to rescue

(i) Even then duty to rescue is only as RPP, never put own life in jeopardy.

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 (3^rd 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 RPP care for own safety

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 ALL if (indemnification)

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 2^nd cause of action (independent)

C. Damages include

1. loss of services

2. loss of companionship

3. loss of sex