Torts Just the Rules Doc

8/13/2019 Torts Just the Rules Doc

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TORTS: JUST THE RULES

Intentional Torts

General requirements

To establish a prima facie case for intentional tort liability, it is generally necessary thatplaintiff prove the following:

1. Act by defendant2. Intent3. Casation

Act: The act by defendant mst be a volitional movement on defendant!s part. "efle#iveor convlsive acts are not volitional. $ovement cased by someone else %e.g. pshing&are not volitional.

Intent: The re'isite intent may be either specific or general.

(pecific intent is present if the actor!s goal was to bring abot the conse'ences.

)eneral intent is present if the actor *nows with sbstantial certainty that theseconse'ences will reslt.

+efendant need not intend the inry, she need only intend the -conse'ences of thetort. /.g., for battery, she need only intend that a harmfl or offensive toching occr.

Transferred intent: 0hen a defendant intends to commit a tort against one person, hisintent may be transferred to:1. The same tort against a different person or2. A different tort against the same person or3. A different tort against a different person.

ote: the transferred intent doctrine applies only to the five original trespassory torts:1. attery2. Assalt3. 4alse imprisonment5. Trespass to land6. Trespass to chattel

$otive is irrelevant to intent. A defendant is liable if she intended the conse'ences ofthe tort, even for an innocent motive.

$inors and incompetents are liable for their intentional torts, nder the maority view.That is, they are held to have the re'isite intent.

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Casation: The act by defendant mst have cased the reslt that gives rise to liability,or set in motion events leading to the reslt. Casation is satisfied if defendant!s actwas a sbstantial factor leading to the reslt.

Battery

+efendant will be liable for battery when she intends harmfl or offensive contact andharmfl or offensive contact reslts.

0hether the contact is harmfl or offensive is dged by the reasonable person test, anobective standard.

7erson: Anything connected to plaintiff!s person is considered plaintiff!s person, e.g.something she is holding.

7laintiff need not be conscios that the contact occrred at the time.

Transferred intent applies.

Actal damages are not re'ired. A cort may award nominal damages, or pnitivedamages where malice was present.

Assault

+efendant will be liable for assalt when she intends to create apprehension ofimmediate harmfl or offensive contact and reasonable apprehension of immediateharmfl or offensive contact reslts.

Apprehension mst be reasonable.

4ear or intimidation need not be present.

Awareness of the imminent contact is necessary for apprehension to e#ist.

Apprehension may reasonably e#ist thogh actal contact is impossible, so long asthere is the apparent ability to case contact.

0ords alone do not constitte assalt. (ome overt act is necessary. 8owever, wordsmay negate an assalt.

A conditional threat, when combined with an overt act, is sfficient for assalt, so longas the defendant did not have the right to impose the condition. /.g., -9or money oryor life is assalt. -If yo try to hit me, I!ll fight bac* is not assalt.

The apprehension mst be of immediate contact. Threats of ftre contact are

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insfficient. (imilarly, there is no assalt if defendant is too far away to do any harm oris merely preparing for a ftre harmfl act.


Actal damages are not re'ired. ominal damages may be awarded, or pnitivedamages when there is malice.

False imprisonment

+efendant will be liable for false imprisonment when she acts to confine plaintiff withinfi#ed bondaries and plaintiff is thereby confined.

The confinement may be accomplished by:1. 7hysical barriers2. 7hysical force3. Threat of force, e#press or implied or

5. 4ailre to provide escape when there is a dty to provide it.

awfl arrests are privileged: there is no false imprisonment. Arrests with a warrant areper se lawfl. Arrests withot a warrant may also be privileged:

1. 4elony arrests withot a warrant by a police officer or private citi;en acting at anofficer!s direction, if:

a. The officer had reasonable gronds to believe that a felony had beencommitted and

b. The officer had reasonable gronds to believe the person committed it.2. 4elony arrests withot a warrant by a private citi;en acting independently will be

valid only if:

a. A felony had in fact been committed andb. The private person had reasonable grond to believe that the person arrestedcommitted it.

3. $isdemeanor arrests withot a warrant, by police officers or private citi;ens, if themisdemeanor was a breach of the peace and was committed in the presence of thearresting party.

5. Arrests to prevent crime withot a warrant, by police officers and private citi;ens,where a felony or breach of the peace is in the process of being, or reasonably appearsabot to be, committed.

The amont of force allowable for privileged arrests is limited:1. 4or felony arrests, both police officers and private citi;ens may se the amont of

force reasonably necessary to ma*e the arrest, bt deadly force is only permissiblewhen the sspect poses a threat of serios harm to the arresting party or others.

2. 4or misdemeanor arrests, both police officers and private citi;ens may se theamont of force reasonably necessary to ma*e the arrest, bt never deadly force.

(hop*eeper!s privilege: y statte or case law, many states allow a shop*eeper to

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detain a sspected shoplifter when:1. There is a reasonable belief as to the fact of theft2. The detention is condcted in a reasonable manner and deadly force is not sed

and3. The detention is for a reasonable time and only for the prpose of ma*ing the

investigation.

$oral pressre is an insfficient means of confinement.

4tre threats are an insfficient means of confinement.

There is no re'irement that plaintiff resist the physical force or test the threat that issed to confine him.

There is no time re'irement for the confinement. It may be momentary.

$ost cases hold that plaintiff mst be aware of the confinement. The "estatement

provides an e#ception where the person confined is actally inred by the confinement.

4or plaintiff to be confined within fi#ed bondaries, his movement in all directions mstbe limited. If there is a reasonable means of escape of which plaintiff is aware, there isno false imprisonment.


+amages: Actal not necessary. ominal


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entry onto that particlar piece of land. Intent to trespass is not re'ired.

7laintiff may be anyone in actal or constrctive possession of the land. This is so evenif that possession is withot title. If no one is possession, the tre owner is presmed inpossession.

If the plaintiff is a lessee, some decisions allow him to recover only to the e#tent that thetrespass damages the leasehold interest.


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Acts that may constitte conversion inclde:1. 0rongfl ac'isition, e.g. larceny or embe;;lement2. 0rongfl transfer, e.g. selling, misdelivering, pledging3. 0rongfl detention, e.g. refsing to retrn to owner5. (bstantially changing6. (everely damaging or destroying>. $issing

+efendant need not intend the damage to or loss of the property she need only intendto perform the act that cased the damage or loss.

/ven a bona fide prchaser may become a converter if the chattel had been stolen fromthe tre owner.

Accidentally casing damage or loss is not conversion nless the actor was sing thechattel withot permission when the accident occrred. %The actor may be liable fornegligence however.&

Temporarily ta*ing, merely moving, or slightly damaging property does not amont toconversion, thogh it may amont to trespass to chattel.


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pon satisfaction of the dgment so that, in effect, there is a forced sale of the chattel.The plaintiff is not obligated to ta*e the chattel bac* shold the defendant want to retrnit.

If the plaintiff wishes to have the chattel retrned, he may get it by availing himself of theremedy of replevin.

Intentional in$lition o$ emotional distress

+efendant will be liable for intentional infliction of emotional distress when she acts in amanner amonting to e#treme and otrageos condct, and with the intent to caseplaintiff severe emotional distress, or with rec*lessness as to the effect of her condct,and severe emotional distress on the part of the plaintiff reslts.

(ome corts are relctant to recogni;e the tort becase of the difficlty of provingemotional distress withot physical manifestations. (ome corts re'ire physicalmanifestations.


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had a design or prpose to case severe distress to plaintiff. /.g. defendant callsplaintiff to tell her %trthflly& that she has *illed her best friend, for the prpose ofcasing her distress.

$any corts have allowed recovery where the mental distress reslts from intentional orrec*less mishandling of a relative!s corpse.

Transferred intent does not apply.

Actal damages are re'ired. ominal damages not awarded. $odernly, it is notnecessary to prove physical inries to recover. It is necessary to prove severeemotional distress. 7nitive damages are allowed where defendant!s condct wasimproperly motivated.

%e$enses to intentional torts

"onsent

+efendant is not liable if plaintiff consented to defendant!s acts.

Consent may be given e#pressly. It may also be implied from cstom, condct, orwords, or by law.

/#ceptions to e#press consent:1. $ista*e: still valid nless defendant cased mista*e.2. Indced by frad: not valid if the frad goes to an essential matter that indced

the consent.3.


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where the criminal act is a breach of the peace %e.g. a street fight& and effective when itis not %e.g. prostittion&. Consent not a good defense when plaintiff is part of a class thelaw e#ists to protect.

0hen defendant!s actions e#ceed the scope of the consent, the defense is invalid forthe additional acts.

Sel$ de$ense

0hen a person reasonably believes she is being, or is abot to be, attac*ed, she mayse sch force as is reasonably necessary to protect herself.

"easonable mista*e as to the threat of attac* does not invalidate the defense.

The defense does not cover retaliation. The force mst be to prevent an attac*.

A maority of corts do not re'ire retreat.


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"easonable mista*e does not invalidate the defense when it involves whether anintrsion has occrred or whether a re'est to desist is re'ired. 8owever, mista*e willinvalidate the defense where the entrant has a privilege to enter the property thatspersedes the defense of property right, so long as the entrant did not case themista*e, e.g. by refsing to inform the property owner of the facts.

7rivileges to enter land that spersede the defense of property right are: necessity, rightof reentry, right to enter another!s land to recaptre chattel.

4orce may not be sed to recaptre property nless she is in hot prsit.

Reentry onto land

At common law, a person who had been tortiosly dispossessed from her land %by frador force& cold se reasonable force to regain possession if she acted promptly pondiscovering the dispossession. %This did not apply to a tenant merely overstaying her

lease.& $odernly, there are smmary procedres that replace sch self@help.

Reapture o$ !attels

/ntry pon land to remove chattels: The owner of chattel is privileged to enter the landof a wrongdoer to remove the chattel at a reasonable time and in a reasonable manner.

A prior demand for retrn of the chattel is generally re'ired.

/ntry onto the land of an innocent party is permitted at a reasonable time and in apeacefl manner when the landowner has been given notice and refsed to retrn thechattel. In this case the chattel owner is liable for any actal damage cased by the

entry.

0hen the chattel is on the land of another throgh falt of the chattel owner, there is noprivilege.

(hop*eeper!s privilege for false imprisonment addressed above.

&ri#ile'e o$ arrest

+epending on the facts of the particlar case, one may have the privilege to ma*e anarrest of a third person.

The privilege of arrest carries with it the privilege to enter another!s land for the prposeof effecting the arrest.

+efendant is still liable for any sbse'ent miscondct, e.g. failing to bring the arrestedparty before a magistrate, ndly detaining the party in ail, etc.

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danger created by defendant!s actions.

A rescer is a foreseeable plaintiff so long as the resce is not wanton. +efendant isths liable if she negligently pts herself or a third person in peril and plaintiff is inredattempting a resce.

A dty of care is owed toward viable fetses. Ths, prenatal inries are actionable.$ost states also permit a wrongfl death action if fets dies.

0rongfl life damages are not permitted, when the plaintiff is a person born disabledbecase of failre to diagnose a birth defect. 8owever, parents may have an action forwrongfl birth in sch cases, allowing damages for additional medical costs or wrongflpregnancy for failre to provide a contraceptive procedre, allowing damages fornwanted labor %medical costs, pain and sffering&. If the child is born healthy, moststates do not allow recovery for additional child@rearing e#penses.

Intended third party beneficiaries of economic transactions are owed a dty of care if

defendant cold reasonably foresee that negligence wold case harm.

The reasonable person is dged to have the same physical characteristics asdefendant. /.g. a reasonable epileptic wold not drive a car.

The reasonable person has average mental ability. Ths, mentally retarded people areliable for harm cased by their negligence, even if it is the reslt of their lower mentalcapacity.

=nowledge: +efendant is deemed to have the *nowledge that an average member ofher commnity has. ac* of *nowledge is no defense if it is nreasonable. 8owever, if

defendant has special *nowledge, she is re'ired to se it.

Thogh some corts may say that people in certain occpations, sch as commercialpilots, have a -higher or the -tmost standard of care, in reality the standard is toe#ercise reasonable care nder the circmstances a reasonable person wold e#ercisegreat care in piloting a plane fll of people.

Insane people do not get a lower standard. The reasonable person is sane.

Child standard: 4or child defendants, the dty is to e#ercise the level of care that a childof the same age, e#perience, and training wold e#ercise. A child may be held to theadlt standard if she is engaged in an adlt activity or an inherently dangeros activity.

$inimm age for liability: $ost corts do not have a set age at which liability cannotattach bt dge each case on the evidence. 8owever, it wold be nli*ely for a cort tofind a dty for a child below the age of for.

Brea!



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7roof of breach is twofold. 7laintiff mst prove defendant!s condct, then prove thatdefendant acted nreasonably.

To determine breach, identify the defendant!s negligent condct. Then apply theris*Btility analysis. That is, weigh the ris)%li*elihood of inry and gravity of potentialharm& of the challenged condct against the *urdenof an alternative action that woldhave prevented the harm and any soial utility of the challenged condct. If the ris*otweighs the brden and tility, then the defendant breached his dty to e#ercisereasonable care.

"ause+in+$at

Two tests are sed: bt@for and sbstantial factor. ?se both in every analysis.

t@for: If plaintiff!s inry wold not have occrred bt for defendant!s negligence, thendefendant!s negligence is the case@in@fact of plaintiff!s inry.

(bstantial factor: If defendant!s negligence materially contribted to casing plaintiff!sinry, then defendant!s negligence is a sbstantial factor in casing, and is the case@in@fact of, plaintiff!s inry.

ote that the bt@for test may fail, as with an inry with mltiple cases. Thesbstantial factor test proves casation in these cases.

If plaintiff can prove that one of two defendants cased her inries, bt cannot provewhich one, then the brden of proof shifts to the defendants, for each of them to provethat she did not case the harm.

&ro,imate ause

+efendant!s negligence will be fond to be the pro#imate case of plaintiff!s inry ifplaintiff!s type of inry was a reasonably foreseeable reslt of defendant!s negligence,or if it was within the scope of ris*s of defendant!s negligence.

Intervening cases may ct off the chain of liability if they are fond to be e#tremelynforeseeable and therefore sperseding. /#ception: even nforeseeable interveningacts will not ct off liability if the type of harm sffered is the same type that defendant!snegligence wold have foreseeably cased. /.g. a cow instead of a car *noc*ing overa lamppost.


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natrally from the inry and do not need to be specially proven.

7nitive damages are not compensatory and are sally awarded only for intentionaltorts, bt they may be awarded against a negligent defendant whose condct waswanton and willfl, rec*less, or malicios.

7laintiff may not recover interest from date of damage in personal inry actions, andmay not recover attorneys! fees.

7laintiff has a responsibility to mitigate damages %as in all cases&.

In most risdictions, defendant may not introdce evidence of aid from other sorces,sch as insrance, to redce the damage award. A growing minority allows this incertain actions, sch as medical malpractice.

%e$enses

The two main defenses to negligence are contribtory negligence and assmption ofris*.

"ontri*utory ne'li'ene

Contribtory negligence was historically a complete bar to recovery. In most modernrisdictions it is not a complete defense bt will redce recovery according to thedegree of plaintiff!s falt. This is called comparative falt or comparative negligence.

ote that when it is called -contribtory negligence, it is meant to be a completedefense. oo* for -last clear chance doctrine sitations.

+ifferent states have adopted different forms of comparative negligence. In a maorityof states a plaintiff is barred from recovery only when she is more negligent %greaterthan 6 percent at falt& or e'al to or more negligent %greater than or e'al to 6percent at falt& than the defendant. A minority of states have adopted precomparative negligence, in which plaintiff may recover even if her negligence is greaterthan that of the defendant.

Contribtory negligence is analy;ed e#actly li*e ordinary negligence: the plaintiff msthave failed to e#ercise ordinary care, and her negligence mst be a case@in@fact and apro#imate case of her own inries.

7laintiff may be fond contribtorily negligent for remaining in danger, or for violating astatte %negligence per se&.

4ailre to mitigate damages is an avoidable conse'ence, and will redce damages. Itis not contribtory negligence.



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Impted contribtory negligence: 7laintiff will often be fond to be contribtorilynegligent when she is in a special relationship with one negligent party, ths barringrecovery against a third negligent party:

1. $asterBservant: impted2. 7artners and oint ventrers: impted3. 8sband and wife: not impted, bt recovery barred becase loss of services is

derivative to main action and will not scceed if main action doesn!t.5. 7arent and child: not impted, bt recovery barred becase loss of services is

derivative to main action and will not scceed if main action doesn!t.6. Atomobile owner and driver: not impted nless she wold be vicariosly liable

%e.g. master servant, etc.&

ast clear chance doctrine: Contribtory negligence will not bar recovery if it occrsbefore the defendant!s negligence, ths giving the defendant the last clear chance toavoid inry to the plaintiff. $odernly, this doctrine is less important, as contribtorynegligence is rarely a complete bar to recovery anyway.

Assumption o$ ris)

A plaintiff may be barred from recovery when she *nowingly and volntarily assmes aparticlar ris*.

7blic policy concerns may gide the decision of whether assmption of ris* will barrecovery.

The *nowledge of the ris* is dged by a sbective standard: it mst be actal*nowledge on the part of the plaintiff.

The plaintiff mst have *nowledge of the fll magnitde and implications of the ris*.

Assmption of ris* may be e#press or implied.

/#press assmption of ris* is a complete defense. It occrs when plaintiff e#plicitlystates that she assmes a ris*, e.g. signing a waiver form. /#press assmption of ris*may be invalidated by the corts when it contradicts pblic policy.

Implied assmption of ris* occrs when plaintiff does not e#plicitly state that sheassmes a ris*. A maority of states sbsme implied assmption of ris* intocomparative negligence it is not a complete bar to recovery, bt will redce the amontof plaintiff!s damages.

Common carriers and pblic tilities may not limit their liability with disclaimers.

0hen a statte is enacted to protect a particlar class, members of that class may notassme a ris*.



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"is*s will not be assmed in sitations involving frad, force, or an emergency.

(e'li'ene per se

+ty: The dty is determined by statte. A defendant has a dty to a plaintiff if sheviolated a statte and:

1. The plaintiff is in the class of persons the statte was designed to protect and2. The harm is of the type the statte was designed to prevent.

reach: +efendant!s violation of the statte is presmed to be a breach of the dty.8owever, the presmption can be rebtted if:

1. There was greater danger in complying with the statte than in violating it or2. There was a sdden emergency not of defendant!s ma*ing or3. +efendant did not or shold not *now of the reason for diligence or5. +efendant sed reasonable care . +efendant was nable to comply after reasonable efforts to comply.

icensing stattes have been determined, as a matter of law, to be for the prpose ofgovernmental reglation, not for people!s protection.

Child defendants: In most risdictions, when a child defendant has violated a statte,the child standard of care is sed to determine dty, rather than the violation of thestatte.

Compliance with a statte cannot be sed to prove that a defendant e#ercisedreasonable care.

Casation, damages, and defenses:+etermined as in ordinary negligence.

Res ipsa loquitur

+ty:+etermined as in ordinary negligence.

reach:"es ipsa lo'itr is sed to determine breach when the defendant!s specificcondct cannot be identified. reach may be fond if:

1. The inry@casing accident is one that wold not ordinarily occr absentnegligence, A+2. The instrmentality involved in the accident was nder the e#clsive control of the

defendant, A+3. The plaintiff did not contribte to her inry in any way.

The doctrine creates a permissible inference of breach from circmstantial evidence.

The doctrine does not change the brden of proof nor create a presmption of



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negligence. o directed verdict may be given for the defendant.

+efendant may present evidence of de care. The ry may choose not to infernegligence, even in the absence of defendant!s evidence of de care.


Speial duties

(on$easane

+ty: onfeasance is inaction. (ome analysis may be involved for instance, notapplying atomobile bra*es at a stop sign is not inaction, bt negligent omission. It ismisfeasance, not nonfeasance.

Absent a special relationship or circmstance, a defendant has no dty to ta*eaffirmative steps for another!s safety. onfeasance creates no dty, and a claim ofnegligence will fail. 8owever, in the case of a special relationship or circmstance, adty to resce or ta*e other affirmative steps %ma*e repairs, protect from a third party,etc.& is imposed.

In these cases, no Palsgrafforeseeable plaintiff analysis is necessary the specialrelationship or circmstance establishes the dty.

(pecial circmstances:

Creating the peril: if defendant created the peril, she has a dty to resce.

Ta*ing charge: if defendant begins a resce attempt, she has a dty either to actreasonably in contining the attempt %maority view& or simply to not leave theplaintiff worse off than she fond her %minority view&. A nmber of states haveenacted -good (amaritan stattes which e#empt gratitos rescers, esp.doctors and nrses, from liability for ordinary negligence. There may still beliability for gross negligence.

(pecial relationships:

Inn*eeper@gest

Cstodian@ward

Carrier@passenger

andowner@invitee

/mployer@employee (tattory dty %e.g. parent@child&

Contractal dty: misfeasance creates liability, nonfeasance does not. %/.g. iflifegard falls asleep on the ob, she is liable, bt if she st doesn!t show p, sheis not.&

7blic policy



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Companions in a social ventreBcommon nderta*ing

$tal dependence

In most modern risdictions, an atomobile driver owes merely the reasonable personstandard of care to a gest in her car.

+?T9 T< C


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the plaintiff mst have sffered a physical impact from the accident, bt that is no longernecessary. $odernly, a plaintiff may recover if she was in the -;one of danger.7hysical manifestations of the emotional distress are re'ired in most risdictions.

+irect victim cases may also inclde cases with no -;one of danger, as where aplaintiff is inaccrately and negligently informed that a family member has died, orwhere a plaintiff is negligently misdiagnosed as having a terminal disease.

9(TA+/"(:The plaintiff may also be a bystander, rather than the direct victim, as in the case of

a bystander who sffers emotional distress at the sight of a loved one being inred by anegligent defendant.

In bystander cases, nder the modern maority analysis, to establish a dty, theplaintiff mst be a close relative of the victim, and be at ris* of inry herself. This is the-;one of danger test again. The line can be blrred between whether the plaintiff!semotional distress is related to her own ris* of physical inry or the sight of herrelative!s physical inry.

$odernly, some risdictions %Dillon v. Leggrisdictions& will allow a plaintiff to

recover even if she is otside the ;one of danger, bt still near the scene of theaccident. (he mst pass a three@prong test:

sffer physical manifestations of emotional distress %in most Dillonrisdictions&

be closely related to the victim

have contemporaneos observance of the accident %t this has varyinginterpretations. Thing v. LaChusain California re'ires actally seeing theaccident happen, not coming pon the immediate aftermath.&

The I/+ analysis establishes the foreseeability of the plaintiff %this replaces thePalsgrafanalysis&, bt it may still be necessary to analy;e what the dty is %e.g.reasonable care, dty to warn, professional standard, etc.&. This depends on whom the

dty is owed to.In direct victim cases, the plaintiff is the direct victim, so the dty is owed by the

defendant to the plaintiff.In a bystander case, the I/+ analysis establishes the foreseeability of the plaintiff,

bt the dty is the dty the defendant owed to the direct victim %whatever that dty maybe&. The negligence in 'estion is the negligence toward the direct victim.

reach, casation, damages, and defenses for direct victims:If the plaintiff is the directvictim, these elements are determined as in ordinary negligence.

reach for bystanders:If the plaintiff is a bystander, defendant!s breach is her breach of

her dty to the direct victim, which establishes her negligence.

Casation for bystanders:Casation in bystander cases refers to whether thedefendant!s negligence is the case of plaintiff!s emotional distress. Casation of thedirect victim!s inry is analy;ed nder the direct victim!s own claim. The foreseeabilityanalysis is accomplished nder the I/+ dty analysis.



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+amages:+etermined as in ordinary negligence.

+efenses:ote that for defenses against a bystander plaintiff, defendant is permitted tose the same defenses that she can se against the direct victim!s negligence claim./.g., if the victim was contribtorily negligent, that defense will be sed against an I/+bystander plaintiff even thogh the I/+ plaintiff was not herself contribtorily negligent.If the victim assmed a ris*, the defense will li*ewise be sed even if the plaintiffassmed no ris*.

&ro$essional standard o$ are

+ty:7rofessionals owe their clients the dty to e#ercise that level of care e#ercised byother professionals in good standing in the relevant %same or similar& commnity.

In addition, a professional is re'ired to se sch special and sperior s*ills as shepossesses.

This is not necessarily a higher standard the level of care need not be reasonable.

ote that e#pert testimony from other professionals is not always necessary. (omecondct is so egregios that a layperson can decide that it is negligent, e.g. leaving asponge inside the body cavity after an operation. %This is a type of res ipsa lo'itr forprofessionals.&

ote that doctors have an additional dty to inform patients of the ris* of a procedresee Informed Consent below.

ote that, of corse, no Palsgrafforeseeable plaintiff analysis is necessary: any client isa foreseeable plaintiff.

reach:The breach is the failre to e#ercise the level of care e#ercised by otherprofessionals in good standing in the relevant commnity. +efendant!s condct will becompared to the condct of other professionals throgh the testimony of e#pertwitnesses.


In$ormed onsent

+ty:+octors have the dty to e#ercise the level of care e#ercised by other doctors ingood standing in the relevant commnity. It is established that this incldes the dty toinform patients of certain ris*s associated with a certain procedre.



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A minority view %the -physician rle& follows the formla of other medical malpracticeclaims: the dty is determined by what other doctors in good standing in the relevantcommnity do. Ths, a plaintiff will need to prodce e#pert testimony indicating that it isthe cstom in the medical commnity to inform patients of the particlar ris* in 'estion.This is sometimes called the -reasonable doctor view, bt actally, as in ordinarymedical malpractice, there is no re'irement of reasonableness.

A maority view %the -patient rle& states that doctors have a dty to inform patients of amaterial ris* of a particlar procedre. A material ris* is defined as a ris* that areasonable patient wold attach significance to in ma*ing the decision of whether tondergo the procedre. This is determined by an analysis of the facts. $aterialitydepends on the gravity and probability of the harm.

If applicable, note that there is a possible e#tension of informed consent doctrine: that adoctor has a dty to inform a patient of the material ris*s of failing to ndergo aparticlar medical procedre.


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conditions, with maor e#ceptions:1. andowner liable for nreasonably dangeros conditions %e.g. allowing water to

rn off roof and form ice on sidewal*&.2. +ty to ta*e de precations to protect passersby, e.g. erecting a barrier to *eep

people from falling into an e#cavation at the edge of the property.3. +ty to control condct of others on his property to avoid nreasonable ris* of

harm to others off the property.

+efendant!s dty to plaintiff when plaintiff is on her land mst be determined. +ty mstbe analy;ed at common law A+ nder Rowland v. Christian.

At common law, there are three categories of plaintiffs:

In#itee:an official relationship, i.e. a bsiness cstomer or a visitor to a pblicbilding.


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%ote that the corts have designated firefighters entering property on the ob aslicensees, whereas letter carriers, meter readers, etc. are invitees.&

?nder Rowland v. Christian, one owes a dty to e#ercise reasonable care to all whocome pon one!s land, and the plaintiff!s stats is one of the factors in determining whatis reasonable.

$ost states have a different standard for sers of recreational land. If the ownerpermits pblic recreational se withot charging a fee, then she is not liable nless shewillflly and maliciosly failed to gard against inry.

andlord dty: 8istorically, a landlord had no liability to a tenant or to a tenant!s gests,becase the lease was viewed as conveying fll control of the property to the lessee.$odern e#ceptions to this rle inclde:

defects in common areas %where the landlord has not ceded fll control of theproperty& this dty e#tends beyond the tenant to foreseeable gests

failre to disclose *nown, concealed defects on the property

premises leased for admission to the pblic

covenant to repair

absent a covenant to repair, where a landlord elects or promises to repair,and does so negligently or fails to do so.

Tenant remains liable to invitees and licensees.

Dendor or realty has dty to disclose concealed, nreasonably dangeros conditions ofwhich she is aware.

reach:In determining breach, one mst analy;e the defendant!s condct nder eachof the possible common law statses A+ nder Rowland v. Christian.

Invitee: The dty is to e#ercise reasonable care. Identify the condct and applyris*Btility analysis.

icensee: +ty is breached if defendant failed to warn of *nown concealeddangers.

Trespasser: reach is impossible there is no dty. /#ceptions:(etting a trap is a breach of the dty to not set traps.8abital *nown trespassers: The breach is either not warning or not

ma*ing safe.

Children: An attractive nisance ma*es the standard that of reasonablecare, so identify the condct and apply ris*Btility analysis.

Rowland v. Christian: +ty to e#ercise reasonable care. Identify the condct andapply ris*Btility analysis.

Case@in@fact:+etermined as in ordinary negligence. ote that if yo identified different



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possible statses for the plaintiff nder dty and breach, yo may need to analy;ecasation separately for each different type of condct that yo identified as the breach.

7ro#imate case:+etermined as in ordinary negligence. Again, note that if yoidentified different possible statses for the plaintiff nder dty and breach, yo mayneed to analy;e pro#imate case separately for each different type of condct that yoidentified as the breach.

+amages and defenses:+etermined as in ordinary negligence.

Bailment duties

)ratitos bailments: where the bailment is for the sole benefit of the bailee, the bailorneed only inform the bailee of *nown dangeros defects in the chattel. The bailee owesbailor only a dty of slight diligence, and only gross negligence is actionable.

ailments for hire: where the bailment is for hire, the bailor owes a dty to inform the

bailee of defects *nown to him or of which he shold have *nown. ailee owes a dtyof ordinary de care.

ailments for bailee!s benefit: ailee owes a dty of great diligence. (light negligenceis actionable.

The modern trend is toward abolishing these distinctions and imposing a standard ofreasonable care nder the circmstances.

Strit lia*ility

+efendant will be liable nder a strict liability theory when she had an absolte dty toma*e safe, she breached the dty, and her breach was the actal and pro#imate caseof damage to plaintiff!s person or property.

The dty is owed only to foreseeable plaintiffs.

The inry mst flow from the normally dangeros propensity of the activity. /.g. plaintiffinred when tire on dynamite trc* blows. +efendant not strictly liable.

(trict liability is often imposed on one who ses his land in a non@natral manner forstorage of a sbstance which is li*ely to do damage if is escapes from storage. The

storage of water often gives rise to the application of this principle.

7ro#imate casation mst be present. Corts may find more intervening casesnforeseeable than they do in negligence.

+amage mst be related to personal inry or property damage. ost profits will not be



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recoverable.

In contribtory negligence states, contrib is no defense if plaintiff negligently failed toreali;e the danger or gard against it. 8owever, if plaintiff *new of the danger and hisnreasonable condct was the very case of the inry, then this is a type of assmptionof ris*. Assmption of ris* is a good defense in contrib states.

$ost comparative negligence states will simply apply the rles of comparativenegligence the same as they do in negligence cases.

Animals

Trespassing animals: The owner is strictly liable for damage done by trespass of heranimals %other than hosehold pets& so long as it was reasonably foreseeable.

0ild animals:


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/#amples of activities held to be ltraha;ardos inclde: manfactring or blastinge#plosives, crop dsting, and fmigating.

&roduts lia*ility

There are five types of action or theories of liability possible in prodcts liability.

Intent

egligence

0arranty

(trict liability in tort %most common&

$isrepresentation

Any case where a plaintiff is inred by a defective prodct may give rise to a claim inseveral of these types of action. Consider all theories nless instrcted otherwise.

In any prodcts liability sitations, the prodct mst have been defective when it leftdefendant!s control.

The factal sitations acconting for nearly all claims in prodct liability are:

$ismanfactre

+efective design

4ailre to warn or inade'ate warning

$isrepresentation

Intentional tort actions are very rare in prodcts liability cases. The tort wold most

li*ely be battery.

/)I)/C/:

/very action in negligence mst flfill the elements of the prima facie case, so aprodcts liability action in negligence is limited by the concepts of reasonable care andreasonable foreseeability.

+ty: 7rivity is not an isse, plaintiff simply mst be a foreseeable plaintiff. +efendanthas a dty to e#ercise reasonable care in design, manfactre,inspection, warning, mar*eting, etc. A retailer has no dty to inspect if the prodctcomes sealed from the manfactrer, nless she has reason to *now it is defective.

Choice of defendant is important, as obviosly in a case of defective manfactre thedefendant shold be the manfactrer rather than the retailer. +ty can be establishedby statte, a type of negligence per se.

reach: Apply ris*Btility analysis to the condct, whether it is mismanfactre, defectivedesign, or failre to warn. 4or negligent design, analy;e reasonable alternative design.



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Analy;e these factors: seflness and desirability of the prodct, availability of saferalternative prodcts, dangers of prodct that have been identified at time of trial,li*elihood and probable seriosness of inry, obviosness of danger, normal pblice#pectation of danger, avoidability of inry by care in se or prodct, feasibility ofeliminating the danger.

Common problems with defects are when plaintiff missed the prodct %manfactrermay be re'ired to anticipate reasonably foreseeable misse&, when the ris* isscientifically n*nowable %no liability where manfactrer cold not have *nown of ris*&,or when the plaintiff has an allergy %modern trend is to re'ire warnings&.

Casation, +amages, +efenses: +etermined as in ordinary negligence.

0A""AT9:

+ty and breach:0arranty claims arise nder principles of contract. The dty iscontractal and the breach is breach of contract.

7rivity has some role: only the consmer or member of consmer!s hosehold may se.The defendant is the entity which offers the warranty. 4or e#press warranty and impliedwarranty of merchantability, the defendant mst be a commercial entity which normallysells sch prodcts. The implied warranty of fitness for a particlar prpose, however,has no re'irement that the seller ordinarily sells sch goods.

0arranty may be e#press or implied. /#press warranty is a written warranty or astatement by a seller. Implied warranty is the implied warranty of merchantability orimplied warranty of fitness for a particlar prpose. It is possible to breach, one, two, orall three of these warranties.

An e#press warranty mst be a factal statement abot the prodct, not mere -pffery.

The ?CC provides that every new prodct has an implied warranty of merchantabilityfor its ordinary prpose, when sold by a merchant who normally sells sch goods. Thewarranty is that the prodct will perform as an ordinary consmer wold e#pect.

The ?CC provides that when a seller has speciali;ed *nowledge abot a prodct andsays that it is fit for a particlar prpose, and the byer relies pon that e#pertise andrecommendation, a warranty of fitness for a particlar prpose arises.

Casation: reach of warranty mst have pro#imately cased the harm.

+amages: A plaintiff may recover nder warranty even if the only damage is to theprodct itself.

+efenses: A disclaimer may release defendant from liability nder an implied warranty./.g. selling a prodct -as is.



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(T"ICT IAIIT9 I T


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+/4/(/(:

4or negligence, both contribtory negligence and assmption of ris* may be sed theywill both be a complete bar.

+efendants in strict liability actions are limited to assmption of ris* as a defense, on thetheory that plaintiff!s own condct is immaterial. 8owever, nforeseeable interveningacts by plaintiff, sch as tampering with the prodct, may ct off the chain of liability.

+efendants in warranty may se assmption of ris* and waiver.

%e$amation

+efamation is the defendant!s pblication to a third party of an inrios statementconcerning the plaintiff, that inres the plaintiff.

0hen the defamation refers to a pblic figre or involves a matter of pblic concern, thelangage mst be false, and the defendant mst be at falt.

0ritten defamation is libel. (po*en defamation is slander. An oral repetition of libel isstill libel, not slander.

"adio and TD: scripted material is libel, spontaneos comments may be slander, bt themodern trend is to treat it as libel.

The defamation mst be concerning an identifiable grop. %/.g., saying, -(omeone in(an 4rancisco is a draft dodger, is not slander.&

+efamation mst be:1. a statement that has a negative effect2. a statement of or concerning the plaintiff3. pblished to a third party.

(tatements of fact may always be defamatory, bt statements of opinion may also be ifthey appear to be based on specific facts and e#press allegation of those facts wold bedefamatory.

The statement may be defamatory on its face, or by innendo, e.g. statement that a

woman has st given birth when she has only been married one month.

+efamation mst be of a living person.

Corporations may be defamed in a limited way, e.g. regarding financial condition,honesty, integrity, etc.



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The statement mst be pblished to a third person who nderstood it.

A repblisher may be liable even if she states that she does not believe the allegationand that it came from a different sorce.

(lander per se: Certain statements abot a person are defined by law as harmfl toone!s reptation general damages need not be proven. These statements are thatplaintiff:

has committed a crime

is nchaste or impotent

has a loathsome disease

is incompetent to perform in her occpation

8istorically, defamation was a strict liability tort. $odernly, different re'irements offalt have been established in different circmstances:

4or pblic officials and pblic figres critici;ed by the media: Constittional malice mstbe shown. This is defined as actal *nowledge that the statement is ntre or rec*lessdisregard for the trth. New York Times v. Sullivan.

4or private persons critici;ed by the media: o need for malice bt mst show somelevel of falt %left p to the states&. At a minimm, negligence mst be shown.

$ost states allow plaintiff to recover withot proof of actal damage, bt the (premeCort has held that nless malice is shown, actal damage mst be proved.

ote that some statements, even if tre, may give rise to liability if they are tterednder circmstances sfficient to constitte intentional infliction of emotional distress orinvasion of privacy. 8owever, where plaintiff is a pblic figre who wold be barred on4irst Amendment gronds from recovering for defamation, she will not be allowed to relyon these other tort theories.

4or slander, general damages are not presmed and mst be proven, e#cept in thecases of slander per se.

4or libel, general damages are presmed and need not be proven. (pecial damages inthis conte#t mean pecniary losses.

A minority of corts, for libel, re'ire general damages to be proven when the libel is byinference %libel per 'od&, bt do not re'ire proof of general damages when theallegation is libelos on its face %libel per se&.

+efenses:1. Consent is a complete defense



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2. Trth is a complete defense for cases of prely private concern3. Absolte privilege:

a. Edicial proceedingsb. egislative proceedingsc. /#ective proceedingsd. -Compelled broadcast or pblication %e.g. e'al time for candidates&e. Commnication between sposes

5. Falified privilege:a. "eports of pblic proceedings: e#cses accrate reports onlyb. 7blic interest: e.g. statements to a parole boardc. 4air comment and criticism: matters of general pblic interest

In#asion o$ pri#ay

Invasion of privacy is a relatively new tort, having been established within the lastcentry. There are for types:

1. Intrsions pon seclsion: wiretapping, peeping toms, etc.2. 7blic revelation of private facts3. Commercial appropriation of li*eness5. 7ortraying one in a false light

Intrsion pon seclsion has these elements:1. An act of prying or intrding by defendant pon plaintiff2. The intrsion wold be obectionable to a reasonable person and3. The thing to which there is an intrsion or prying is -private.

7blic revelation of private facts:

1. 7blication or pblic disclosre by defendant of private information abot theplaintiff and2. The reasonable person wold obect to the facts being made pblic.

4or pblic revelation of private facts, the facts may be tre. A pblic figre sally maynot be a plaintiff in this type of action.

$atters of pblic record may never constitte private facts.

Appropriation of li*eness has one element:1. ?nathori;ed se by defendant of plaintiff!s pictre or name for defendant!s

commercial advantage. imited to advertisements and promotions.

4alse light:1. 7blication of facts abot plaintiff by defendant placing plaintiff in a false light in

the pblic eye.2. The -false light wold be obectionable to a reasonable person and3. If the matter is of pblic interest, defendant mst have malice.



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4alse light is defined as attribting to plaintiff views she does not hold or actions she didnot ta*e.

The right to privacy is personal. It does not e#tend to family members and is notassignable.

Corporations have no right to privacy.

+efenses:1. Consent. (ome states re'ire consent be in writing. Acts may not e#ceed scope

of consent. $ista*e as to whether consent was given %which in fact it was not&, even ifreasonable, invalidates the defense.

2. 7rivileges: The privileges to defamation appear to apply to invasion of privacy aswell.

.isrepresentation7rima facie case:

1. $isrepresentation %false statement& made by defendant2. (cienter %defendant *new the representation was false&3. Intent to indce plaintiff!s reliance on misrepresentation5. Casation %i.e. actal reliance&6. "eliance was stifiable and>. +amages

?sally, the misrepresentation mst be of a material past or present fact. In certaincases, a misrepresentation of opinion may be actionable this is actally a stifiability

'estion.

4ailre to disclose a material fact is not actionable nless:1. There is a fidciary relationship or2. +efendant is selling real property and *nows plaintiff is naware of and cannotreasonably discover material information or3. +efendant spea*s and her tterance deceives plaintiff %she mst inform plaintiff oftre facts&.

Active concealment is actionable.

(cienter incldes *nowledge of falsity and rec*less disregard as to trth or falsity.0here scienter is absent, defendant may still be liable for negligent misrepresentation.

+efendant mst intend reliance by plaintiff or a class of persons to which plaintiffbelongs. In case of mislabeling of prodct or misrepresentation of negotiableinstrment, the deception is continos and anyone who comes into possession of the



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thing may se.

Third party reliance: iability may attach where defendant made a misrepresentation toone party and plaintiff, a third party, relied on it, if defendant cold reasonably foreseethat plaintiff wold have sch reliance. /.g. defendant!s false profit statement tostoc*bro*er: defendant liable to stoc*bro*er!s cstomer.

"eliance: 7laintiff has no dty to investigate trth of defendant!s statement.

?sally, only statements of fact, not opinion, are actionable. /#ceptions:1. +efendant has sperior *nowledge or2. (tatements of law by a lawyer, or statements of law that imply the e#istence of

false facts %e.g. the plmbing is p to code& or3. (tatements of present intent, where defendant has control over ftre events.

+amages: plaintiff mst have sffered actal pecniary loss.

egligent misrepresentation:1. $isrepresentation made by defendant in a bsiness or professional capacity2. reach of a dty toward particlar plaintiff3. Casation5. Estifiable reliance and6. +amages.

/ron'$ul institution o$ le'al proeedin's

$alicios prosection:1. Instittion of criminal proceedings against plaintiff

2. Termination favorable to plaintiff3. Absence of probable case for prosection5. Improper prpose of defendant and6. +amages.

+efendant mst have institted criminal proceedings against plaintiff. This may be bywarrant, arrest, indictment, etc.

7rosecting attorneys are absoltely privileged and cannot be sed for maliciosprosection.

Termination favorable to plaintiff means that plaintiff mst have been ac'itted, casedismissed, charges dropped, etc. The termination mst indicate that the accsed wasinnocent.

Indictment by grand ry is prima facie evidence that probable case e#isted. 8owever,failre of grand ry to indict is not evidence that no probable case e#isted.



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If defendant institted the prior proceedings on advice of consel after fll disclosre ofthe facts, this establishes probable case.

$alice or improper prpose is shown by any prpose other than bringing the person tostice.

+amages mst be proved. 7nitive damages are often awarded, since improperprpose is already an element of the sit.

+istingished from false arrest in that the arrest itself was proper bt the prosection ismalicios.

$ost risdictions have e#panded the scope of the tort to inclde wronglly instittedcivil proceedings. ac* of probable case is harder to prove.

Abse of process is a separate tort. +efendant will be liable when she ses any form of

process, civil or criminal, to bring abot a reslt other than that for which the processwas intended. /.g. garnishing an accont to force plaintiff to sign a lease. The actionitself may have merit, bt it is institted for an lterior motive.

Inter$erene 0it! *usiness relations

Interference with contract or with prospective economic advantage:1. /#istence of a valid contractal relationship between plaintiff and a third party or a

valid bsiness e#pectancy of plaintiff2. +efendant!s *nowledge of the relationship or e#pectancy3. Intentional interference by defendant that indces a breach or termination of the

relationship or e#pectancy and5. +amage to the plaintiff.

ot limited to e#isting contracts. Applicable to probable ftre bsiness relationships.

$st have intent. $ost corts do not recogni;e negligent interference, nless incombination with some other tort, sch as negligent misrepresentation.

An interferor!s condct may be privileged when it is a proper attempt to gain bsinessfor herself, particlarly if the interference is only with prospective advantages rather thane#isting contracts.

(uisane

isance is not a separate tort, bt a type of harm: the invasion of private propertyrights, or interference with pblic rights sch as health and safety.



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+efendant!s condct may have been intentional, negligent, or sbect to strict liability.Intentional is most common. 4or strict liability, corts may refer to -absolte nisanceor -nisance per se.

7rivate nisance is a sbstantial, nreasonable interference with another privateindividal!s se or enoyment of property he actally possesses or has an immediateright to possess.

If plaintiff has no property rights, he has no private nisance claim.

The interference mst be offensive, inconvenient, or annoying to the average person inthe commnity.

4or nisance based on intent or negligence, the inry mst otweigh the tility of thecondct.

+istingished from trespass to land in that there need not be an interference with

landowner!s right to e#clsive possession, merely to her se or enoyment.

7blic nisance is an act that interferes with the health, safety, or property rights of thecommnity, e.g. bloc*ing a highway or sing a bilding to commit criminal activities."ecovery is available only if plaintiff has sffered ni'e inries not sffered by thepblic at large.

+amages may be damages or innctive relief. Innctive relief is only available wheredamages wold be navailable or inade'ate.


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"espondeat sperior: /mployer vicariosly liable for tortios acts committed by heremployee if the tortios acts occr within the scope of the employment relationship.

4rolics and detors are not within the scope of employment if they are maor in time andgeographic area.

Intentional torts by employees are generally not within the scope, e#cept:1. 4orce athori;ed in the employment: e.g. boncer2. 4riction generated by employment, e.g. bill collector3. /mployee frthering bsiness of employer, e.g. removing cstomers from

premises becase rowdy.

Independent contractors: 7rincipal generally not liable for acts of her agent when agentis an independent contractor. /#ceptions:

1. Independent contractor is engaged in inherently dangeros activities, e.g. blastingwith dynamite.

2. +ty is nondelegable for pblic policy reasons, e.g. dty to *eep bsiness

premises safe or dty of motorist to *eep car in safe wor*ing order.

/mployer may always be liable for her own negligence in selecting the employee orindependent contractor. This is not vicarios liability.

7ersons engaged in a concert of action are regarded as members of a oint enterprise.

/ach partner or oint ventrer is vicariosly liable for the torts of the others.

A oint ventre mst have a common prpose %sometimes a common bsiness prpose&and mtal control.

Atomobiles: general rle is that owner is not vicariosly liable. (ome states ma*eowner liable for immediate family members.


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offensive contact with a person, it does not matter what other circmstances the insaneperson thoght were present. 8owever, if the insane person intended a contact with aperson whom she believed was a horse, then she is not liable for battery.

Corts may impose vicarios liability when child is acting as agent for parent.

7arent may be liable for her own negligence in allowing the child to do something.

Tavern *eepers: At common law, no liability for drn*en cstomers! torts. $any stateshave enacted -dramshop acts imposing liability.


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apportioning it as in contribtion. Available in these circmstances:1. "ight to indemnity by contract2. Dicarios liability3. Indemnity nder strict prodcts liability5. Identifiable difference in degree of falt

a. "etailers who negligently rely on prodct!s condition may receiveindemnification from manfatrer who negligently manfactred it.

b. (econdary dty: one with primary dty may recover from one with secondarydty

c. ActiveBpassive: one who is passively negligent may recover from one who isactively negligent.

$ost states with comparative negligence systems reect indemnity in degree of faltsitations, instead simply applying comparative negligence.

$ost states now se a comparative contribtion system based on the relative falt ofthe tortfeasors.

Sur#i#al and 0ron'$ul deat! ations

At common law, a tort action abated at the death of either the tortfeasor or the victim.$ost states have changed this via -srvival acts.

In most states, highly personal torts sch as defamation or malicios prosection stille#pire on victim!s death.

0rongfl death acts may be broght by the personal representative or srviving *in ofthe deceased.


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The action is derivative and depends on potential sccess of the inred person!s ownaction. Ths any defense that wold prevent recovery by the inred person will applyto the derivative action.

Tort immunities

At common law, immediate family members cold not se each other in tort for personalinry. $ost states have now abolished intersposal immnity. 7arent@child immnity islimited.

A sit for property damage is sally not sbect to family immnity.

)overnmental nits were traditionally not sbect to tort sits nder sovereign immnity.This immnity is now limited.

The ?.(. federal government has waived immnity e#cept:1. assalt, battery, false imprisonment, false arrest, malicios prosection, abse of

process, libel and slander, misrepresentation and deceit, and interference with contractrights.

2. +iscretionary acts: immnity not waived for acts at the planning or decisionma*inglevel rather than the operational level.

3. )overnment contractors may assert governmental immnity when they conformedto government specifications

$ost states have waived their sovereign immnity to the same e#tent as the federalgovernment.

$nicipalities: abot half the states have abolished mnicipal immnity. 8owever, in

the case of a pblic dty, a special relationship between the mnicipality and the plaintiffmst be shown for liability to attach. 0here immnity still e#ists for mnicipalities, it issally only for traditional government fnctions, not fnctions that cold st as easilybe performed by a private entity.

7blic officials and charities may also have limited immnity.

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