Torts Just The Rules

TORTS: JUST THE RULES
Intentional Torts
General requirements To establish a prima facie case for intentional tort liability, it is generally necessary that plaintiff prove the following: 1. Act by defendant 2. Intent 3. Ca sation Act: The act by defendant m st be a volitional movement on defendant!s part. "efle#ive or conv lsive acts are not volitional. $ovement ca sed by someone else %e.g. p shing& 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 abo t the conse' ences. )eneral intent is present if the actor *nows with s bstantial certainty that these conse' ences will res lt. +efendant need not intend the in, ry, she need only intend the -conse' ences of the tort.. /.g., for battery, she need only intend that a harmf l or offensive to ching occ r. Transferred intent: 0hen a defendant intends to commit a tort against one person, his intent may be transferred to: 1. The same tort against a different person1 or 2. A different tort against the same person1 or 3. A different tort against a different person. 2ote: the transferred intent doctrine applies only to the five original trespassory torts: 1. 3attery 2. Assa lt 3. 4alse imprisonment 5. Trespass to land 6. Trespass to chattel $otive is irrelevant to intent. A defendant is liable if she intended the conse' ences of the tort, even for an innocent motive. $inors and incompetents are liable for their intentional torts, nder the ma,ority view. That is, they are held to have the re' isite intent.
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Ca sation: The act by defendant m st have ca sed the res lt that gives rise to liability, or set in motion events leading to the res lt. Ca sation is satisfied if defendant!s act was a s bstantial factor leading to the res lt. Battery +efendant will be liable for battery when she intends harmf l or offensive contact and harmf l or offensive contact res lts. 0hether the contact is harmf l or offensive is , dged by the reasonable person test, an ob,ective standard. 7erson: Anything connected to plaintiff!s person is considered plaintiff!s person, e.g. something she is holding. 7laintiff need not be conscio s that the contact occ rred at the time. Transferred intent applies. Act al damages are not re' ired. A co rt may award nominal damages, or p nitive damages where malice was present. Assault +efendant will be liable for assa lt when she intends to create apprehension of immediate harmf l or offensive contact and reasonable apprehension of immediate harmf l or offensive contact res lts. Apprehension m st 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 tho gh act al contact is impossible, so long as there is the apparent ability to ca se contact. 0ords alone do not constit te assa lt. (ome overt act is necessary. 8owever, words may negate an assa lt. A conditional threat, when combined with an overt act, is s fficient for assa lt, so long as the defendant did not have the right to impose the condition. /.g., -9o r money or yo r life. is assa lt. -If yo try to hit me, I!ll fight bac*. is not assa lt. The apprehension m st be of immediate contact. Threats of f t re contact are
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ins fficient. (imilarly, there is no assa lt if defendant is too far away to do any harm or is merely preparing for a f t re harmf l act. Transferred intent applies. Act al damages are not re' ired. 2ominal damages may be awarded, or p nitive damages when there is malice. False imprisonment +efendant will be liable for false imprisonment when she acts to confine plaintiff within fi#ed bo ndaries and plaintiff is thereby confined. The confinement may be accomplished by: 1. 7hysical barriers1 2. 7hysical force1 3. Threat of force, e#press or implied1 or 5. 4ail re to provide escape when there is a d ty to provide it. :awf l arrests are privileged: there is no false imprisonment. Arrests with a warrant are per se lawf l. Arrests witho t a warrant may also be privileged: 1. 4elony arrests witho t a warrant by a police officer or private citi;en acting at an officer!s direction, if: a. The officer had reasonable gro nds to believe that a felony had been committed1 and b. The officer had reasonable gro nds to believe the person committed it. 2. 4elony arrests witho t a warrant by a private citi;en acting independently will be valid only if: a. A felony had in fact been committed1 and b. The private person had reasonable gro nd to believe that the person arrested committed it. 3. $isdemeanor arrests witho t a warrant, by police officers or private citi;ens, if the misdemeanor was a breach of the peace and was committed in the presence of the arresting party. 5. Arrests to prevent crime witho t 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 appears abo t to be, committed. The amo nt of force allowable for privileged arrests is limited: 1. 4or felony arrests, both police officers and private citi;ens may se the amo nt of force reasonably necessary to ma*e the arrest, b t deadly force is only permissible when the s spect poses a threat of serio s harm to the arresting party or others. 2. 4or misdemeanor arrests, both police officers and private citi;ens may se the amo nt of force reasonably necessary to ma*e the arrest, b t never deadly force. (hop*eeper!s privilege: 3y stat te or case law, many states allow a shop*eeper to
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detain a s spected shoplifter when: 1. There is a reasonable belief as to the fact of theft1 2. The detention is cond cted in a reasonable manner and deadly force is not sed1 and 3. The detention is for a reasonable time and only for the p rpose of ma*ing the investigation. $oral press re is an ins fficient means of confinement. 4 t re threats are an ins fficient means of confinement. There is no re' irement that plaintiff resist the physical force or test the threat that is sed to confine him. There is no time re' irement for the confinement. It may be momentary. $ost cases hold that plaintiff m st be aware of the confinement. The "estatement provides an e#ception where the person confined is act ally in, red by the confinement. 4or plaintiff to be confined within fi#ed bo ndaries, his movement in all directions m st be limited. If there is a reasonable means of escape of which plaintiff is aware, there is no false imprisonment. Transferred intent applies. +amages: Act al not necessary. 2ominal <=. 7 nitive if malice. Trespass to land +efendant will be liable for trespass to land when she intends an entry onto plaintiff!s real property and entry res lts. The right protected is the right of e#cl sive possession of real property. Therefore, any physical invasion of plaintiff!s land is s fficient. +efendant need not enter the land1 it is s fficient that she ca se some ob,ect or third person to enter the land. +efendant may also be liable when she remains on the land after she entered lawf lly b t her right to be there has lapsed. If no person or physical ob,ect enters the land, as in the case of blasting conc ssions, co rts s ally do not treat the case as trespass, b t as n isance, or strict liability if ltraha;ardo s activities are involved. $ista*e as to the lawf llness of the entry is no defense so long as defendant intended
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entry onto that partic lar piece of land. Intent to trespass is not re' ired. 7laintiff may be anyone in act al or constr ctive possession of the land. This is so even if that possession is witho t title. If no one is possession, the tr e owner is pres med in possession. If the plaintiff is a lessee, some decisions allow him to recover only to the e#tent that the trespass damages the leasehold interest. <ther cases allow a f ll recovery for all damage to the property, re' iring the lessee to acco nt to the lessor for e#cess over damages to the leasehold. Transferred intent applies. 2o act al damages re' ired. Trespass to !attel +efendant will be liable for trespass to chattel when she intends to act in a way that ca ses an interference with plaintiff!s right of possession in chattel. Interference may consist of: 1. Intermeddling, or direct damage of plaintiff!s chattel1 or 2. +ispossession % s ally temporary& of plaintiff!s lawf l right of possession. $ista*e as to the lawf lness of the interference is no defense so long as defendant intended the act. 7laintiff may be anyone with possession or the immediate right to possession of the property. Transferred intent applies. Act al damages are generally re' ired. 2ominal damages are generally not awarded. 8owever, if the trespass amo nts to a dispossession, the loss of possession itself is deemed to be act al damages. Trespass to chattel is disting ished from conversion in that the interference is not so serio s in nat re or conse' ences as to warrant re' iring the defendant to pay the f ll val e of the chattel in damages. "on#ersion +efendant will be liable for conversion when she intends to act in a way that ca ses an interference with plaintiff!s right of possession in chattel that is serio s eno gh in nat re or conse' ence to warrant that defendant pay the f ll val e of the chattel.
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Acts that may constit te conversion incl de: 1. 0rongf l ac' isition, e.g. larceny or embe;;lement 2. 0rongf l transfer, e.g. selling, misdelivering, pledging 3. 0rongf l detention, e.g. ref sing to ret rn to owner 5. ( bstantially changing 6. (everely damaging or destroying >. $is sing +efendant need not intend the damage to or loss of the property1 she need only intend to perform the act that ca sed the damage or loss. /ven a bona fide p rchaser may become a converter if the chattel had been stolen from the tr e owner. Accidentally ca sing damage or loss is not conversion nless the actor was sing the chattel witho t permission when the accident occ rred. %The actor may be liable for negligence however.& Temporarily ta*ing, merely moving, or slightly damaging property does not amo nt to conversion, tho gh it may amo nt to trespass to chattel. <ne!s interference with another!s property may be said to reach the level of conversion, when she acts to e#ercise dominion or control over it. The longer the withholding period and more e#tensive the se, the more li*ely conversion has res lted, rather than trespass to chattel. A bailee receiving goods from a thief witho t notice that they are stolen may ret rn the goods to the thief witho t liability to the tr e owner for conversion. 8owever, if the bailee has notice and the real owner ma*es a demand for the goods, the bailee is liable for conversion if she ret rns the goods to the thief. Conversion is limited to tangible personal property, and intangibles that have been red ced to physical form %e.g. a promissory note&, and doc ments in which title to chattel is merged %e.g. a receipt&. Intellect al property and real property may not be converted. 7laintiff may be anyone with possession or the immediate right to possession. 8owever, if the possessor is not the tr e owner, she is acco ntable to the tr e owner for any recovery to the e#tent of the owner!s interest. Transferred intent does not apply. The remedies for conversion are damages and replevin. 7laintiff is entitled to damages for the fair mar*et val e of the chattel. This val e is s ally comp ted as of the time and place of conversion. The defendant is given title
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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* sho ld the defendant want to ret rn it. If the plaintiff wishes to have the chattel ret rned, he may get it by availing himself of the remedy of replevin. Intentional in$li tion o$ emotional distress +efendant will be liable for intentional infliction of emotional distress when she acts in a manner amo nting to e#treme and o trageo s cond ct, and with the intent to ca se plaintiff severe emotional distress, or with rec*lessness as to the effect of her cond ct, and severe emotional distress on the part of the plaintiff res lts. (ome co rts are rel ctant to recogni;e the tort beca se of the diffic lty of proving emotional distress witho t physical manifestations. (ome co rts re' ire physical manifestations. < trageo s cond ct is cond ct that transcends all bo nds of decency tolerated by society. In the absence of s ch cond ct, it is generally held that the reasonable person wo ld not have s ffered the emotional distress s ffered by the plaintiff. /#amples of o trageo s cond ct: 1. /#treme b siness cond ct, s ch as e#treme collection methods, may be actionable. 2. $is se of a thority in some circ mstances may be actionable, e.g. school a thorities threatening p pils. 3. <ffensive or ins lting lang age will generally not be characteri;ed as o trageo s cond ct nless there is a special relationship between plaintiff and defendant or a sensitivity on plaintiff!s part of which defendant is aware. Common carriers and inn*eepers owe special d ties to their patrons that will be a basis for liability even when the act is less than o trageo s. (pecial sensitivity may incl de children, pregnant women, and elderly people. 3ystander cases: 0hen the defendant intentionally ca ses severe, physical harm to a third person and the plaintiff s ffers severe emotional distress beca se of her relationship to the in, red person, the elements of intent and ca sation may be harder to prove. "e' irements: 1. 7laintiff was present when the in, ry occ rred to the other person1 2. 7laintiff was a close relative of the in, red person1 and 3. +efendant *new that plaintiff was present and a close relative of the in, red person. 2ote: 7laintiff need not establish presence or family relationship if she shows defendant
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had a design or p rpose to ca se severe distress to plaintiff. /.g. defendant calls plaintiff to tell her %tr thf lly& that she has *illed her best friend, for the p rpose of ca sing her distress. $any co rts have allowed recovery where the mental distress res lts from intentional or rec*less mishandling of a relative!s corpse. Transferred intent does not apply. Act al damages are re' ired. 2ominal damages not awarded. $odernly, it is not necessary to prove physical in, ries to recover. It is necessary to prove severe emotional distress. 7 nitive damages are allowed where defendant!s cond ct was improperly motivated. %e$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 c stom, cond ct, or words, or by law. /#ceptions to e#press consent: 1. $ista*e: still valid nless defendant ca sed mista*e. 2. Ind ced by fra d: not valid if the fra d goes to an essential matter that ind ced the consent. 3. <btained by d ress: ?s ally invalid. 2ote that threats of f t re action or f t re economic deprivation do not constit te legal d ress to invalidate consent. Implied consent is generally of two types: 1. Apparent consent: valid when a reasonable person wo ld infer from plaintiff!s cond ct that she consented. /.g. engaging in a contact sport. $ay also be inferred from sage and c stom, e.g. a person is pres med to consent to the ordinary minor b mping e#perienced in a crowd. 2. Implied by law: Consent is held to be present where action is necessary to save a person!s life or some other important interest in person or property. Applies in emergency sit ations where plaintiff is incapable of consenting and a reasonable person wo ld concl de some contact is necessary to prevent death or serio s bodily harm. /.g. emergency s rgery on nconscio s person. Capacity: Incompetents, dr n*en persons, and very yo ng children are deemed incapable of consent. Consent of parent or g ardian is necessary. The ma,ority view is that a person cannot consent to criminal activity. $inority and "estatement ta*e the contrary position. The modern trend is that consent is ineffective
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where the criminal act is a breach of the peace %e.g. a street fight& and effective when it is not %e.g. prostit tion&. Consent not a good defense when plaintiff is part of a class the law e#ists to protect. 0hen defendant!s actions e#ceed the scope of the consent, the defense is invalid for the additional acts. Sel$ de$ense 0hen a person reasonably believes she is being, or is abo t to be, attac*ed, she may se s ch force as is reasonably necessary to protect herself. "easonable mista*e as to the threat of attac* does not invalidate the defense. The defense does not cover retaliation. The force m st be to prevent an attac*. A ma,ority of co rts do not re' ire retreat. <ne may stand one!s gro nd and repel an attac*. <ne may not se deadly force in response to non@deadly force. The amo nt of force sed m st be reasonable. An aggressor may not se the defense. 8owever, if the aggressor sed non@deadly force, and was then confronted with deadly force, he may se deadly force in response. The defense covers accidental in, ries to third parties, tho gh defendant might be liable to the bystander for negligence. If defendant deliberately in, red a bystander to protect himself, the defense is not a good one. %e$ense o$ ot!ers +efendant is privileged to se reasonable force to protect another when she has a reasonable belief that s ch force is necessary. Available even if the person aided act ally had no defense %e.g. she was the aggressor b t defendant did not *now that&. +efendant may se the level of force that wo ld be , stified if the attac* were directed at her. %e$ense o$ property <ne may se reasonable force to prevent the commission of a tort against her property. +eadly force may never be sed, incl ding traps, spring g ns, and vicio s dogs. A re' est to desist is s ally re' ired, nless the circ mstances ma*e it clear that s ch re' est wo ld be f tile or dangero s.
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"easonable mista*e does not invalidate the defense when it involves whether an intr sion has occ rred or whether a re' est to desist is re' ired. 8owever, mista*e will invalidate the defense where the entrant has a privilege to enter the property that s persedes the defense of property right, so long as the entrant did not ca se the mista*e, e.g. by ref sing to inform the property owner of the facts. 7rivileges to enter land that s persede the defense of property right are: necessity, right of reentry, right to enter another!s land to recapt re chattel. 4orce may not be sed to recapt re property nless she is in hot p rs it. Reentry onto land At common law, a person who had been tortio sly dispossessed from her land %by fra d or force& co ld se reasonable force to regain possession if she acted promptly pon discovering the dispossession. %This did not apply to a tenant merely overstaying her lease.& $odernly, there are s mmary proced res that replace s ch self@help. Re apture o$ !attels /ntry pon land to remove chattels: The owner of chattel is privileged to enter the land of a wrongdoer to remove the chattel at a reasonable time and in a reasonable manner. A prior demand for ret rn of the chattel is generally re' ired. /ntry onto the land of an innocent party is permitted at a reasonable time and in a peacef l manner when the landowner has been given notice and ref sed to ret rn the chattel. In this case the chattel owner is liable for any act al damage ca sed by the entry. 0hen the chattel is on the land of another thro gh fa lt of the chattel owner, there is no privilege. (hop*eeper!s privilege for false imprisonment addressed above. &ri#ile'e o$ arrest +epending on the facts of the partic lar case, one may have the privilege to ma*e an arrest of a third person. The privilege of arrest carries with it the privilege to enter another!s land for the p rpose of effecting the arrest. +efendant is still liable for any s bse' ent miscond ct, e.g. failing to bring the arrested party before a magistrate, nd ly detaining the party in ,ail, etc.
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<ne who ma*es an arrest nder the mista*en belief that it is privileged may be liable for false imprisonment. (e essity A person may interfere with the real or personal property of another where it is reasonably and apparently necessary to avoid threatened in, ry from nat ral or other forces, and where the threatened in, ry is s bstantially more serio s than the invasion that is nderta*en to avoid it. 4or p blic necessity, the defense is absol te. 4or private necessity, i.e. where the defense is to protect individ al persons or property, the actor m st pay for the damage she ca ses. %is ipline A parent or teacher may se reasonable force in disciplining children, ta*ing into acco nt the age and se# of the child and the serio sness of the behavior.
(e'li'en e
Ordinary ne'li'en e +efendant will be liable for negligence when she breaches a d ty to plaintiff, and s ch breach is the act al and pro#imate ca se of plaintiff!s damages, and no defenses apply. /lements: 1. + ty 2. 3reach 3. Ca sation 5. +amages 6. +efenses %uty + ty of reasonable care: Imposed on all h man activity. + ty to act as an ordinary, pr dent, reasonable person wo ld act. 4oreseeable plaintiffs nder Palsgraf: 0hen defendant acts negligently toward one person, ca sing an nforeseeable in, ry to another. $ay the nforeseeable plaintiff recoverA Two views: 1. Andrews view: + ty is owed to everyone. If defendant acted negligently toward one person, anyone in, red by this breach may recover. 2. Cardo;o %ma,ority& view: 7laintiff may recover only if she was in the -;one of
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danger. created by defendant!s actions. A resc er is a foreseeable plaintiff so long as the resc e is not wanton. +efendant is th s liable if she negligently p ts herself or a third person in peril and plaintiff is in, red attempting a resc e. A d ty of care is owed toward viable fet ses. Th s, prenatal in, ries are actionable. $ost states also permit a wrongf l death action if fet s dies. 0rongf l life damages are not permitted, when the plaintiff is a person born disabled beca se of fail re to diagnose a birth defect. 8owever, parents may have an action for wrongf l birth in s ch cases, allowing damages for additional medical costs1 or wrongf l pregnancy for fail re to provide a contraceptive proced re, allowing damages for nwanted labor %medical costs, pain and s ffering&. If the child is born healthy, most states do not allow recovery for additional child@rearing e#penses. Intended third party beneficiaries of economic transactions are owed a d ty of care if defendant co ld reasonably foresee that negligence wo ld ca se harm. The reasonable person is , dged to have the same physical characteristics as defendant. /.g. a reasonable epileptic wo ld not drive a car. The reasonable person has average mental ability. Th s, mentally retarded people are liable for harm ca sed by their negligence, even if it is the res lt of their lower mental capacity. =nowledge: +efendant is deemed to have the *nowledge that an average member of her comm nity has. :ac* of *nowledge is no defense if it is nreasonable. 8owever, if defendant has special *nowledge, she is re' ired to se it. Tho gh some co rts may say that people in certain occ pations, s ch as commercial pilots, have a -higher. or the - tmost. standard of care, in reality the standard is to e#ercise reasonable care nder the circ mstances1 a reasonable person wo ld e#ercise great care in piloting a plane f ll of people. Insane people do not get a lower standard. The reasonable person is sane. Child standard: 4or child defendants, the d ty is to e#ercise the level of care that a child of the same age, e#perience, and training wo ld e#ercise. A child may be held to the ad lt standard if she is engaged in an ad lt activity or an inherently dangero s activity. $inim m age for liability: $ost co rts do not have a set age at which liability cannot attach b t , dge each case on the evidence. 8owever, it wo ld be nli*ely for a co rt to find a d ty for a child below the age of fo r. Brea !
7roof of breach is twofold. 7laintiff m st prove defendant!s cond ct, then prove that defendant acted nreasonably. To determine breach, identify the defendant!s negligent cond ct. Then apply the ris*B tility analysis. That is, weigh the ris) %li*elihood of in, ry and gravity of potential harm& of the challenged cond ct against the *urden of an alternative action that wo ld have prevented the harm and any so ial utility of the challenged cond ct. If the ris* o tweighs the b rden and tility, then the defendant breached his d ty to e#ercise reasonable care. "ause+in+$a t Two tests are sed: b t@for and s bstantial factor. ?se both in every analysis. 3 t@for: If plaintiff!s in, ry wo ld not have occ rred b t for defendant!s negligence, then defendant!s negligence is the ca se@in@fact of plaintiff!s in, ry. ( bstantial factor: If defendant!s negligence materially contrib ted to ca sing plaintiff!s in, ry, then defendant!s negligence is a s bstantial factor in ca sing, and is the ca se@ in@fact of, plaintiff!s in, ry. 2ote that the b t@for test may fail, as with an in, ry with m ltiple ca ses. The s bstantial factor test proves ca sation in these cases. If plaintiff can prove that one of two defendants ca sed her in, ries, b t cannot prove which one, then the b rden of proof shifts to the defendants, for each of them to prove that she did not ca se the harm. &ro,imate ause +efendant!s negligence will be fo nd to be the pro#imate ca se of plaintiff!s in, ry if plaintiff!s type of in, ry was a reasonably foreseeable res lt of defendant!s negligence, or if it was within the scope of ris*s of defendant!s negligence. Intervening ca ses may c t off the chain of liability if they are fo nd to be e#tremely nforeseeable and therefore s perseding. /#ception: even nforeseeable intervening acts will not c t off liability if the type of harm s ffered is the same type that defendant!s negligence wo ld have foreseeably ca sed. /.g. a cow instead of a car *noc*ing over a lamppost. <nly the type of harm need be foreseeable, not the manner and e#tent of the harm. A tomobile accidents in medical transport and medical malpractice have been held to not be s perseding intervening ca ses, tho gh the chance of them happening is slight. /#treme medical malpractice is an e#ception.
<ther -dependent. intervening forces that will not c t off the chain of liability are: 1. 2egligence of resc ers 2. /fforts to protect persons or property 3. -"eaction. forces 5. ( bse' ent disease 6. ( bse' ent accident 2egligent acts by third persons and acts of god will not c t off liability if they were foreseeable. It is irrelevant whether an intervening act is criminal. If it is foreseeable, then it will not be fo nd to be a s perseding ca se. /gg@shell s* ll r le: +efendant ta*es plaintiff as she finds her. Th s, she is liable for nforeseeable in, ries res lting from her negligence against a plaintiff with a prior medical condition. 0hen foreseeable res lts are ca sed by an nforeseeable intervening force, defendant is liable as long as the intervening force is not a crime or intentional tort by a third party. /.g., if defendant negligently leaves e#plosive gases in a garage, and an nforeseeable bolt of lightning ca ses an e#plosion, defendant is liable. 3 t if an arsonist ca sed the e#plosion, defendant is not liable. ?ltimately, the ' estion of whether a defendant!s negligence can be seen as the pro#imate ca se of a plaintiff!s in, ry is determined by the co rts, and p blic policy concerns may enter into the decision. %ama'es 2egligence re' ires proof of act al harm for damages to be awarded. %?nli*e, for instance, trespass, which may res lt in no harm b t co rts may award symbolic damages.& (o ma*e note of plaintiff!s act al in, ry in this section. )enerally, a plaintiff will be awarded compensatory damages as compensation for the in, ries she s stained as a res lt of defendant!s negligence. 7laintiff is compensated for all in, ries, past, present, and prospective. 4or property damage, the damages are the loss in val e, i.e. the reasonable cost of repair, or the fair mar*et replacement val e if property is damaged beyond repair. 4or personal in, ry, pec niary or economic damages may incl de compensation for medical e#penses, lost wages, and dimished earning capacity. These -special damages. m st be proven by evidence. 2on@pec niary losses may incl de pain and s ffering and emotional distress. These -general damages. are nderstood to flow
nat rally from the in, ry and do not need to be specially proven. 7 nitive damages are not compensatory and are s ally awarded only for intentional torts, b t they may be awarded against a negligent defendant whose cond ct was wanton and willf l, rec*less, or malicio s. 7laintiff may not recover interest from date of damage in personal in, ry actions, and may not recover attorneys! fees. 7laintiff has a responsibility to mitigate damages %as in all cases&. In most , risdictions, defendant may not introd ce evidence of aid from other so rces, s ch as ins rance, to red ce the damage award. A growing minority allows this in certain actions, s ch as medical malpractice. %e$enses The two main defenses to negligence are contrib tory negligence and ass mption of ris*. "ontri*utory ne'li'en e Contrib tory negligence was historically a complete bar to recovery. In most modern , risdictions it is not a complete defense b t will red ce recovery according to the degree of plaintiff!s fa lt. This is called comparative fa lt or comparative negligence. 2ote that when it is called -contrib tory negligence,. it is meant to be a complete defense. :oo* for -last clear chance doctrine. sit ations. +ifferent states have adopted different forms of comparative negligence. In a ma,ority of states a plaintiff is barred from recovery only when she is more negligent %greater than 6C percent at fa lt& or e' al to or more negligent %greater than or e' al to 6C percent at fa lt& than the defendant. A minority of states have adopted p re comparative negligence, in which plaintiff may recover even if her negligence is greater than that of the defendant. Contrib tory negligence is analy;ed e#actly li*e ordinary negligence: the plaintiff m st have failed to e#ercise ordinary care, and her negligence m st be a ca se@in@fact and a pro#imate ca se of her own in, ries. 7laintiff may be fo nd contrib torily negligent for remaining in danger, or for violating a stat te %negligence per se&. 4ail re to mitigate damages is an avoidable conse' ence, and will red ce damages. It is not contrib tory negligence.
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Imp ted contrib tory negligence: 7laintiff will often be fo nd to be contrib torily negligent when she is in a special relationship with one negligent party, th s barring recovery against a third negligent party: 1. $asterBservant: imp ted 2. 7artners and ,oint vent rers: imp ted 3. 8 sband and wife: not imp ted, b t recovery barred beca se loss of services is derivative to main action and will not s cceed if main action doesn!t. 5. 7arent and child: not imp ted, b t recovery barred beca se loss of services is derivative to main action and will not s cceed if main action doesn!t. 6. A tomobile owner and driver: not imp ted nless she wo ld be vicario sly liable %e.g. master servant, etc.& :ast clear chance doctrine: Contrib tory negligence will not bar recovery if it occ rs before the defendant!s negligence, th s giving the defendant the last clear chance to avoid in, ry to the plaintiff. $odernly, this doctrine is less important, as contrib tory negligence is rarely a complete bar to recovery anyway. Assumption o$ ris) A plaintiff may be barred from recovery when she *nowingly and vol ntarily ass mes a partic lar ris*. 7 blic policy concerns may g ide the decision of whether ass mption of ris* will bar recovery. The *nowledge of the ris* is , dged by a s b,ective standard: it m st be act al *nowledge on the part of the plaintiff. The plaintiff m st have *nowledge of the f ll magnit de and implications of the ris*. Ass mption of ris* may be e#press or implied. /#press ass mption of ris* is a complete defense. It occ rs when plaintiff e#plicitly states that she ass mes a ris*, e.g. signing a waiver form. /#press ass mption of ris* may be invalidated by the co rts when it contradicts p blic policy. Implied ass mption of ris* occ rs when plaintiff does not e#plicitly state that she ass mes a ris*. A ma,ority of states s bs me implied ass mption of ris* into comparative negligence1 it is not a complete bar to recovery, b t will red ce the amo nt of plaintiff!s damages. Common carriers and p blic tilities may not limit their liability with disclaimers. 0hen a stat te is enacted to protect a partic lar class, members of that class may not ass me a ris*.
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"is*s will not be ass med in sit ations involving fra d, force, or an emergency. (e'li'en e per se + ty: The d ty is determined by stat te. A defendant has a d ty to a plaintiff if she violated a stat te and: 1. The plaintiff is in the class of persons the stat te was designed to protect1 and 2. The harm is of the type the stat te was designed to prevent. 3reach: +efendant!s violation of the stat te is pres med to be a breach of the d ty. 8owever, the pres mption can be reb tted if: 1. There was greater danger in complying with the stat te than in violating it1 or 2. There was a s dden emergency not of defendant!s ma*ing1 or 3. +efendant did not or sho ld not *now of the reason for diligence1 or 5. +efendant sed reasonable care <" 6. +efendant lac*ed the capacity to comply with the stat te <" >. +efendant was nable to comply after reasonable efforts to comply. :icensing stat tes have been determined, as a matter of law, to be for the p rpose of governmental reg lation, not for people!s protection. Child defendants: In most , risdictions, when a child defendant has violated a stat te, the child standard of care is sed to determine d ty, rather than the violation of the stat te. Compliance with a stat te cannot be sed to prove that a defendant e#ercised reasonable care. Ca sation, damages, and defenses: +etermined as in ordinary negligence. Res ipsa loquitur + ty: +etermined as in ordinary negligence. 3reach: "es ipsa lo' it r is sed to determine breach when the defendant!s specific cond ct cannot be identified. 3reach may be fo nd if: 1. The in, ry@ca sing accident is one that wo ld not ordinarily occ r absent negligence, A2+ 2. The instr mentality involved in the accident was nder the e#cl sive control of the defendant, A2+ 3. The plaintiff did not contrib te to her in, ry in any way. The doctrine creates a permissible inference of breach from circ mstantial evidence. The doctrine does not change the b rden of proof nor create a pres mption of
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negligence. 2o directed verdict may be given for the defendant. +efendant may present evidence of d e care. The , ry may choose not to infer negligence, even in the absence of defendant!s evidence of d e care. Ca sation, damages, and defenses: +etermined as in ordinary negligence. Spe ial duties (on$easan e + ty: 2onfeasance is inaction. (ome analysis may be involved1 for instance, not applying a tomobile bra*es at a stop sign is not inaction, b t negligent omission. It is misfeasance, not nonfeasance. Absent a special relationship or circ mstance, a defendant has no d ty to ta*e affirmative steps for another!s safety. 2onfeasance creates no d ty, and a claim of negligence will fail. 8owever, in the case of a special relationship or circ mstance, a d ty to resc e or ta*e other affirmative steps %ma*e repairs, protect from a third party, etc.& is imposed. In these cases, no Palsgraf foreseeable plaintiff analysis is necessary1 the special relationship or circ mstance establishes the d ty. (pecial circ mstances: Creating the peril: if defendant created the peril, she has a d ty to resc e. Ta*ing charge: if defendant begins a resc e attempt, she has a d ty either to act reasonably in contin ing the attempt %ma,ority view& or simply to not leave the plaintiff worse off than she fo nd her %minority view&. A n mber of states have enacted -good (amaritan. stat tes which e#empt grat ito s resc ers, esp. doctors and n rses, from liability for ordinary negligence. There may still be liability for gross negligence. (pecial relationships: Inn*eeper@g est C stodian@ward Carrier@passenger :andowner@invitee /mployer@employee (tat tory d ty %e.g. parent@child& Contract al d ty: misfeasance creates liability, nonfeasance does not. %/.g. if lifeg ard falls asleep on the ,ob, she is liable, b t if she , st doesn!t show p, she is not.& 7 blic policy
Companions in a social vent reBcommon nderta*ing $ t al dependence
In most modern , risdictions, an a tomobile driver owes merely the reasonable person standard of care to a g est in her car. +?T9 T< C<2T"<: <" 7"<T/CT %Third 7arty 2onfeasance&: Absent a special relationship, defendant has no d ty to control the behavior of another or protect another from harm. +?T9 T< C<2T"<:: A special relationship between defendant and a third party may give rise to defendant!s d ty to control the third party, preventing harm to plaintiff. In California, therapists m st ta*e reasonable steps to control a third party where the therapist *nows, or based on professional standards, sho ld *now, that the therapist!s patient presents a serio s ris* of physical harm to the plaintiff. Tarasoff. (ome , risdictions re' ire that the threat be against a -readily identifiable victim.. In some , risdictions, a drin*ing establishment has a d ty to control third parties by not serving them alcohol if they are into#icated, preventing them from in, ring potential plaintiffs. A minority of , risdictions has applied this d ty to social hosts as well as bars. +?T9 T< 7"<T/CT: A special relationship between defendant and plaintiff may give rise to defendant!s d ty to protect plaintiff from a third party. These relationships parallel the special relationships above that give rise to the d ty to resc e. 3reach: The breach in a nonfeasance action is the fail re to ta*e affirmative steps to resc e, control, or protect. As seen above, different relationships and circ mstances give rise to different d ties, so the breach analysis will vary. (ome analysis may be re' ired, as when a defendant does ta*e some affirmative steps that arg ably fall short of f lfilling her d ty. The ris*B tility test may then be sed to compare defendant!s actions to hypothetical, more reasonable actions. Ca sation, damages, and defenses: +etermined as in ordinary negligence. (e'li'ent in$li tion o$ emotional distress + ty: 2egligent infliction of emotional distress %2I/+& may be sed to establish a d ty to a plaintiff who was not physically harmed by defendant!s negligence, b t s ffered emotional distress. If the plaintiff s ffered physical harm, then she co ld s e nder ordinary negligence and her emotional distress wo ld be tac*ed on as damages. +I"/CT DICTI$(: The plaintiff may be a direct victim, as in a case where a negligent driver speeds toward the plaintiff, narrowly missing her and ca sing emotional distress. 8istorically,
the plaintiff m st have s ffered a physical impact from the accident, b t that is no longer necessary. $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 incl de cases with no -;one of danger,. as where a plaintiff is inacc rately and negligently informed that a family member has died, or where a plaintiff is negligently misdiagnosed as having a terminal disease. 39(TA2+/"(: The plaintiff may also be a bystander, rather than the direct victim, as in the case of a bystander who s ffers emotional distress at the sight of a loved one being in, red by a negligent defendant. In bystander cases, nder the modern ma,ority analysis, to establish a d ty, the plaintiff m st be a close relative of the victim, and be at ris* of in, ry herself. This is the -;one of danger. test again. The line can be bl rred between whether the plaintiff!s emotional distress is related to her own ris* of physical in, ry or the sight of her relative!s physical in, ry. $odernly, some , risdictions %Dillon v. Legg , risdictions& will allow a plaintiff to recover even if she is o tside the ;one of danger, b t still near the scene of the accident. (he m st pass a three@prong test: s ffer physical manifestations of emotional distress %in most Dillon , risdictions& be closely related to the victim have contemporaneo s observance of the accident %3 t this has varying interpretations. Thing v. LaChusa in California re' ires act ally seeing the accident happen, not coming pon the immediate aftermath.& The 2I/+ analysis establishes the foreseeability of the plaintiff %this replaces the Palsgraf analysis&, b t it may still be necessary to analy;e what the d ty is %e.g. reasonable care, d ty to warn, professional standard, etc.&. This depends on whom the d ty is owed to. In direct victim cases, the plaintiff is the direct victim, so the d ty is owed by the defendant to the plaintiff. In a bystander case, the 2I/+ analysis establishes the foreseeability of the plaintiff, b t the d ty is the d ty the defendant owed to the direct victim %whatever that d ty may be&. The negligence in ' estion is the negligence toward the direct victim. 3reach, ca sation, damages, and defenses for direct victims: If the plaintiff is the direct victim, these elements are determined as in ordinary negligence. 3reach for bystanders: If the plaintiff is a bystander, defendant!s breach is her breach of her d ty to the direct victim, which establishes her negligence. Ca sation for bystanders: Ca sation in bystander cases refers to whether the defendant!s negligence is the ca se of plaintiff!s emotional distress. Ca sation of the direct victim!s in, ry is analy;ed nder the direct victim!s own claim. The foreseeability analysis is accomplished nder the 2I/+ d ty analysis.
+amages: +etermined as in ordinary negligence. +efenses: 2ote that for defenses against a bystander plaintiff, defendant is permitted to se the same defenses that she can se against the direct victim!s negligence claim. /.g., if the victim was contrib torily negligent, that defense will be sed against an 2I/+ bystander plaintiff even tho gh the 2I/+ plaintiff was not herself contrib torily negligent. If the victim ass med a ris*, the defense will li*ewise be sed even if the plaintiff ass med no ris*. &ro$essional standard o$ are + ty: 7rofessionals owe their clients the d ty to e#ercise that level of care e#ercised by other professionals in good standing in the relevant %same or similar& comm nity. In addition, a professional is re' ired to se s ch special and s perior s*ills as she possesses. This is not necessarily a higher standard1 the level of care need not be reasonable. 2ote that e#pert testimony from other professionals is not always necessary. (ome cond ct is so egregio s that a layperson can decide that it is negligent, e.g. leaving a sponge inside the body cavity after an operation. %This is a type of res ipsa lo' it r for professionals.& 2ote that doctors have an additional d ty to inform patients of the ris* of a proced re1 see Informed Consent below. 2ote that, of co rse, no Palsgraf foreseeable plaintiff analysis is necessary: any client is a foreseeable plaintiff. 3reach: The breach is the fail re to e#ercise the level of care e#ercised by other professionals in good standing in the relevant comm nity. +efendant!s cond ct will be compared to the cond ct of other professionals thro gh the testimony of e#pert witnesses. Ca sation, damages, and defenses: +etermined as in ordinary negligence. In$ormed onsent + ty: +octors have the d ty to e#ercise the level of care e#ercised by other doctors in good standing in the relevant comm nity. It is established that this incl des the d ty to inform patients of certain ris*s associated with a certain proced re.
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A minority view %the -physician r le.& follows the form la of other medical malpractice claims: the d ty is determined by what other doctors in good standing in the relevant comm nity do. Th s, a plaintiff will need to prod ce e#pert testimony indicating that it is the c stom in the medical comm nity to inform patients of the partic lar ris* in ' estion. This is sometimes called the -reasonable doctor. view, b t act ally, as in ordinary medical malpractice, there is no re' irement of reasonableness. A ma,ority view %the -patient r le.& states that doctors have a d ty to inform patients of a material ris* of a partic lar proced re. A material ris* is defined as a ris* that a reasonable patient wo ld attach significance to in ma*ing the decision of whether to ndergo the proced re. This is determined by an analysis of the facts. $ateriality depends on the gravity and probability of the harm. If applicable, note that there is a possible e#tension of informed consent doctrine: that a doctor has a d ty to inform a patient of the material ris*s of failing to ndergo a partic lar medical proced re. <ne m st have the capacity to consent. <ne cannot consent to illegal activity. 3reach: A doctor breaches her d ty to inform when she performs a medical proced re, having received the patient!s consent to it witho t f lly informing the patient of a material ris* %or witho t following the c stom of the medical comm nity, in , risdictions following the -physician r le.&, and the ris*ed in, ry occ rs. A doctor may also breach her d ty by e#ceeding the scope of consent, i.e. by performing a proced re beyond or different from what was consented to. If the proced re is well beyond the scope of consent, the ca se of action may be battery rather than negligence. Ca se@in@fact: 7laintiff m st show that she wo ld not have gone forward with the proced re if she had been f lly informed of the ris*. ?se the facts. 7ro#imate ca se: 7laintiff m st show that a reasonable person wo ld not have gone forward with the proced re if she had been f lly informed of the ris*. ?se the facts. +amages and defenses: +etermined as in ordinary negligence. 2ote that the ndisclosed adverse conse' ences of the medical proced re m st have act ally occ rred. Land o upier duties
+ ty: 2ote at the o tset that we do not analy;e whether plaintiff is foreseeable nder Palsgraf. This iss e is resolved e#cl sively by the land occ pier r les below. + ty to those off the premises: 2o d ty regarding nat ral conditions %e#ception for decaying trees ne#t to sidewal*s or streets in rban areas&. 2o d ty regarding artificial
conditions, with ma,or e#ceptions: 1. :andowner liable for nreasonably dangero s conditions %e.g. allowing water to r n off roof and form ice on sidewal*&. 2. + ty to ta*e d e preca tions 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 cond ct of others on his property to avoid nreasonable ris* of harm to others off the property. +efendant!s d ty to plaintiff when plaintiff is on her land m st be determined. + ty m st be analy;ed at common law A2+ nder Rowland v. Christian. At common law, there are three categories of plaintiffs: In#itee: an official relationship, i.e. a b siness c stomer or a visitor to a p blic b ilding. <wed the highest d ty: d ty to e#ercise reasonable care, and ta*e affirmative steps for plaintiff!s safety %i.e. in a nonfeasance case&. Li ensee: a social g est. <wed only the d ty to warn of *nown, concealed dangers. 2o re' irement of reasonableness. Trespasser: 2o d ty owed. Three e#ceptions: 1. There is a d ty to not set traps %e.g. spring g ns&. 2. 8abit al *nown trespassers: d ty to warn or ma*e safe concealed dangers. 3. Children %attractive n isance&: 0hen yo ng children are attracted onto the land and a dangero s condition e#ists %the condition need not be the attraction&, if: a& the land occ pier *nows %or sho ld *now& that children are li*ely to trespass and enco nter the dangero s artificial condition, A2+ b& the dangero s condition creates an nreasonable ris* of serio s harm or death to the children, A2+ c& the children are too yo ng to f lly appreciate the ris*, then The d ty becomes the d ty to e#ercise reasonable care. 5. 8olders of easements and licenses owe a d ty of reasonable care to trespassers. /mployees and independent contractors do not. This section m st incl de analysis sing the facts. Identify the facts that wor* toward each stat s. Choose the most li*ely stat s and say why. If the line between invitee and licensee is bl rred, the analysis incl des whether plaintiff is on the land for her own p rpose or b siness rather than for the land occ pier!s benefit1 this indicates licensee stat s. If the land is held open to the p blic, this indicates invitee stat s. Tenant!s employees are invitees of landlord. Invitees are ones who convey an economic benefit on the landowner.
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%2ote that the co rts have designated firefighters entering property on the ,ob as licensees, whereas letter carriers, meter readers, etc. are invitees.& ?nder Rowland v. Christian, one owes a d ty to e#ercise reasonable care to all who come pon one!s land, and the plaintiff!s stat s is one of the factors in determining what is reasonable. $ost states have a different standard for sers of recreational land. If the owner permits p blic recreational se witho t charging a fee, then she is not liable nless she willf lly and malicio sly failed to g ard against in, ry. :andlord d ty: 8istorically, a landlord had no liability to a tenant or to a tenant!s g ests, beca se the lease was viewed as conveying f ll control of the property to the lessee. $odern e#ceptions to this r le incl de: defects in common areas %where the landlord has not ceded f ll control of the property&1 this d ty e#tends beyond the tenant to foreseeable g ests fail re to disclose *nown, concealed defects on the property premises leased for admission to the p blic 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 d ty to disclose concealed, nreasonably dangero s conditions of which she is aware. 3reach: In determining breach, one m st analy;e the defendant!s cond ct nder each of the possible common law stat ses A2+ nder Rowland v. Christian. Invitee: The d ty is to e#ercise reasonable care. Identify the cond ct and apply ris*B tility analysis. :icensee: + ty is breached if defendant failed to warn of *nown concealed dangers. Trespasser: 3reach is impossible1 there is no d ty. /#ceptions: (etting a trap is a breach of the d ty to not set traps. 8abit al *nown trespassers: The breach is either not warning or not ma*ing safe. Children: An attractive n isance ma*es the standard that of reasonable care, so identify the cond ct and apply ris*B tility analysis. Rowland v. Christian: + ty to e#ercise reasonable care. Identify the cond ct and apply ris*B tility analysis.
Ca se@in@fact: +etermined as in ordinary negligence. 2ote that if yo identified different

possible stat ses for the plaintiff nder d ty and breach, yo may need to analy;e ca sation separately for each different type of cond ct that yo identified as the breach. 7ro#imate ca se: +etermined as in ordinary negligence. Again, note that if yo identified different possible stat ses for the plaintiff nder d ty and breach, yo may need to analy;e pro#imate ca se separately for each different type of cond ct that yo identified as the breach. +amages and defenses: +etermined as in ordinary negligence. Bailment duties )rat ito s bailments: where the bailment is for the sole benefit of the bailee, the bailor need only inform the bailee of *nown dangero s defects in the chattel. The bailee owes bailor only a d ty of slight diligence, and only gross negligence is actionable. 3ailments for hire: where the bailment is for hire, the bailor owes a d ty to inform the bailee of defects *nown to him or of which he sho ld have *nown. 3ailee owes a d ty of ordinary d e care. 3ailments for bailee!s benefit: 3ailee owes a d ty of great diligence. (light negligence is actionable. The modern trend is toward abolishing these distinctions and imposing a standard of reasonable care nder the circ mstances.
Stri t lia*ility
+efendant will be liable nder a strict liability theory when she had an absol te d ty to ma*e safe, she breached the d ty, and her breach was the act al and pro#imate ca se of damage to plaintiff!s person or property. The d ty is owed only to foreseeable plaintiffs. The in, ry m st flow from the normally dangero s propensity of the activity. /.g. plaintiff in, red when tire on dynamite tr c* blows. +efendant not strictly liable. (trict liability is often imposed on one who ses his land in a non@nat ral manner for storage of a s bstance 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 ca sation m st be present. Co rts may find more intervening ca ses nforeseeable than they do in negligence. +amage m st be related to personal in, ry or property damage. :ost profits will not be
recoverable. In contrib tory negligence states, contrib is no defense if plaintiff negligently failed to reali;e the danger or g ard against it. 8owever, if plaintiff *new of the danger and his nreasonable cond ct was the very ca se of the in, ry, then this is a type of ass mption of ris*. Ass mption of ris* is a good defense in contrib states. $ost comparative negligence states will simply apply the r les of comparative negligence the same as they do in negligence cases. Animals Trespassing animals: The owner is strictly liable for damage done by trespass of her animals %other than ho sehold pets& so long as it was reasonably foreseeable. 0ild animals: <wner is strictly liable for in, ries ca sed by lions, bears, etc. so long as the plaintiff did nothing vol ntarily or conscio sly to bring abo t the in, ry. The in, ry m st be by virt e of the animal being -wild,. not an in, ry that co ld , st as easily be ca sed by an ordinary domesticated animal. +omestic animals: <wner will be strictly liable only if owner has *nowledge of the partic lar animal!s dangero s propensities, even if the animal has never act ally bitten anyone. (ome , risdictions have dog bite stat tes which impose strict liability in personal in, ry actions even witho t prior *nowledge of dangero s propensities. 0ild or dangero s animal liability will attach when plaintiffs are licensees and invitees %m st prove negligence for defendant ;oo*eepers and others nder p blic d ty to *eep animals&. Trespassers as plaintiffs m st prove negligence. Dicio s dogs as watchdogs may create liability even for trespassers nder intentional tort theory %no deadly force to protect property&. Ultra!a-ardous a ti#ities An activity may be characteri;ed as ltraha;ardo s when it involves a s bstantial ris* no matter how m ch care is e#ercised. 0hether an activity is ltraha;ardo s is a ' estion of law that the co rt can decide on a motion for a directed verdict. Three re' irements: 1. Activity m st involve a ris* of serio s harm to persons or property1 2. The activity cannot be performed witho t ris* of serio s harm, no matter how m ch care is ta*en1 and 3. It m st not be an activity that is commonly engaged in by persons in the comm nity. There is still a foreseeable plaintiff notion in most , risdictions.
/#amples of activities held to be ltraha;ardo s incl de: man fact ring or blasting e#plosives, crop d sting, and f migating.
&rodu ts lia*ility
There are five types of action or theories of liability possible in prod cts liability. Intent 2egligence 0arranty (trict liability in tort %most common& $isrepresentation Any case where a plaintiff is in, red by a defective prod ct may give rise to a claim in several of these types of action. Consider all theories nless instr cted otherwise. In any prod cts liability sit ations, the prod ct m st have been defective when it left defendant!s control. The fact al sit ations acco nting for nearly all claims in prod ct liability are: $isman fact re +efective design 4ail re to warn or inade' ate warning $isrepresentation Intentional tort actions are very rare in prod cts liability cases. The tort wo ld most li*ely be battery. 2/):I)/2C/: /very action in negligence m st f lfill the elements of the prima facie case, so a prod cts liability action in negligence is limited by the concepts of reasonable care and reasonable foreseeability. + ty: 7rivity is not an iss e, plaintiff simply m st be a foreseeable plaintiff. +efendant has a d ty to e#ercise reasonable care in design, man fact re, inspection, warning, mar*eting, etc. A retailer has no d ty to inspect if the prod ct comes sealed from the man fact rer, nless she has reason to *now it is defective. Choice of defendant is important, as obvio sly in a case of defective man fact re the defendant sho ld be the man fact rer rather than the retailer. + ty can be established by stat te, a type of negligence per se. 3reach: Apply ris*B tility analysis to the cond ct, whether it is misman fact re, defective design, or fail re to warn. 4or negligent design, analy;e reasonable alternative design.
Analy;e these factors: sef lness and desirability of the prod ct, availability of safer alternative prod cts, dangers of prod ct that have been identified at time of trial, li*elihood and probable serio sness of in, ry, obvio sness of danger, normal p blic e#pectation of danger, avoidability of in, ry by care in se or prod ct, feasibility of eliminating the danger. Common problems with defects are when plaintiff mis sed the prod ct %man fact rer may be re' ired to anticipate reasonably foreseeable mis se&, when the ris* is scientifically n*nowable %no liability where man fact rer co ld not have *nown of ris*&, or when the plaintiff has an allergy %modern trend is to re' ire warnings&. Ca sation, +amages, +efenses: +etermined as in ordinary negligence. 0A""A2T9: + ty and breach: 0arranty claims arise nder principles of contract. The d ty is contract al and the breach is breach of contract. 7rivity has some role: only the cons mer or member of cons mer!s ho sehold may s e. The defendant is the entity which offers the warranty. 4or e#press warranty and implied warranty of merchantability, the defendant m st be a commercial entity which normally sells s ch prod cts. The implied warranty of fitness for a partic lar p rpose, however, has no re' irement that the seller ordinarily sells s ch goods. 0arranty may be e#press or implied. /#press warranty is a written warranty or a statement by a seller. Implied warranty is the implied warranty of merchantability or implied warranty of fitness for a partic lar p rpose. It is possible to breach, one, two, or all three of these warranties. An e#press warranty m st be a fact al statement abo t the prod ct, not mere -p ffery.. The ?CC provides that every new prod ct has an implied warranty of merchantability for its ordinary p rpose, when sold by a merchant who normally sells s ch goods. The warranty is that the prod ct will perform as an ordinary cons mer wo ld e#pect. The ?CC provides that when a seller has speciali;ed *nowledge abo t a prod ct and says that it is fit for a partic lar p rpose, and the b yer relies pon that e#pertise and recommendation, a warranty of fitness for a partic lar p rpose arises. Ca sation: 3reach of warranty m st have pro#imately ca sed the harm. +amages: A plaintiff may recover nder warranty even if the only damage is to the prod ct itself. +efenses: A disclaimer may release defendant from liability nder an implied warranty. /.g. selling a prod ct -as is..
(T"ICT :IA3I:IT9 I2 T<"T: (trict liability in tort is an alternative to negligence and warranty actions1 it eliminates the re' irements of proving negligence and showing privity. )enerally, a commercial s pplier will be strictly liable when it places a defective prod ct in the stream of commerce, and the defect ca ses in, ry to a foreseeable plaintiff. 7laintiff m st be foreseeable %cons mer, ser, bystander, etc.&1 no privity re' ired. "easonableness of defendant!s action, d e care, etc. is no defense so long as prod ct is defective. 7ro#imate ca sation m st still be present. +efendant may be any commercial s pplier, anywhere along the chain of commerce, e.g. man fact rer, distrib tor, retailer. +oes not incl de s ppliers of services. +oes not incl de private individ als who sell prod cts. (trict liability: 2o negligence re' ired, no fa lt re' ired. The defect m st be the act al and pro#imate ca se of the in, ry. The prod ct can be defective thro gh misman fact re, defective design, or inade' ate warning. The determination of whether the prod ct is defective is made sing either an - nreasonably dangero s. test, a -cons mer e#pectation. test, or a ris*B tility test. +efect m st be act al and pro#imate ca se of the in, ry. +amage only to the prod ct itself is not recoverable. There m st be other property damage or personal in, ry %and then damage to the prod ct itself may be tac*ed on&. 8istorically, in order for a plaintiff to recover, she had to be sing the prod ct in its intended manner. $odernly, all foreseeable ses are <= %e.g. standing on a chair&. $I("/7"/(/2TATI<2: $isrepresentation is sed as a ca se of action when any person is in, red in reliance on the prod ct seller!s misrepresentation of fact %e.g. ass rances of a prod ct!s safety&. ?nli*e warranty, plaintiff m st prove act al reliance. ?nli*e strict liability, the prod ct need not be dangero sly defective.
+/4/2(/(: 4or negligence, both contrib tory negligence and ass mption of ris* may be sed1 they will both be a complete bar. +efendants in strict liability actions are limited to ass mption of ris* as a defense, on the theory that plaintiff!s own cond ct is immaterial. 8owever, nforeseeable intervening acts by plaintiff, s ch as tampering with the prod ct, may c t off the chain of liability. +efendants in warranty may se ass mption of ris* and waiver.
%e$amation
+efamation is the defendant!s p blication to a third party of an in, rio s statement concerning the plaintiff, that in, res the plaintiff. 0hen the defamation refers to a p blic fig re or involves a matter of p blic concern, the lang age m st be false, and the defendant m st be at fa lt. 0ritten defamation is libel. (po*en defamation is slander. An oral repetition of libel is still libel, not slander. "adio and TD: scripted material is libel, spontaneo s comments may be slander, b t the modern trend is to treat it as libel. The defamation m st be concerning an identifiable gro p. %/.g., saying, -(omeone in (an 4rancisco is a draft dodger,. is not slander.& +efamation m st be: 1. a statement that has a negative effect 2. a statement of or concerning the plaintiff 3. p blished to a third party. (tatements of fact may always be defamatory, b t statements of opinion may also be if they appear to be based on specific facts and e#press allegation of those facts wo ld be defamatory. The statement may be defamatory on its face, or by inn endo, e.g. statement that a woman has , st given birth when she has only been married one month. +efamation m st be of a living person. Corporations may be defamed in a limited way, e.g. regarding financial condition, honesty, integrity, etc.
The statement m st be p blished to a third person who nderstood it. A rep blisher may be liable even if she states that she does not believe the allegation and that it came from a different so rce. (lander per se: Certain statements abo t a person are defined by law as harmf l to one!s rep tation1 general damages need not be proven. These statements are that plaintiff: has committed a crime is nchaste or impotent has a loathsome disease is incompetent to perform in her occ pation 8istorically, defamation was a strict liability tort. $odernly, different re' irements of fa lt have been established in different circ mstances: 4or p blic officials and p blic fig res critici;ed by the media: Constit tional malice m st be shown. This is defined as act al *nowledge that the statement is ntr e or rec*less disregard for the tr th. New York Times v. Sullivan. 4or private persons critici;ed by the media: 2o need for malice b t m st show some level of fa lt %left p to the states&. At a minim m, negligence m st be shown. $ost states allow plaintiff to recover witho t proof of act al damage, b t the ( preme Co rt has held that nless malice is shown, act al damage m st be proved. 2ote that some statements, even if tr e, may give rise to liability if they are ttered nder circ mstances s fficient to constit te intentional infliction of emotional distress or invasion of privacy. 8owever, where plaintiff is a p blic fig re who wo ld be barred on 4irst Amendment gro nds from recovering for defamation, she will not be allowed to rely on these other tort theories. 4or slander, general damages are not pres med and m st be proven, e#cept in the cases of slander per se. 4or libel, general damages are pres med and need not be proven. (pecial damages in this conte#t mean pec niary losses. A minority of co rts, for libel, re' ire general damages to be proven when the libel is by inference %libel per ' od&, b t do not re' ire proof of general damages when the allegation is libelo s on its face %libel per se&. +efenses: 1. Consent is a complete defense
2. Tr th is a complete defense for cases of p rely private concern 3. Absol te privilege: a. E dicial proceedings b. :egislative proceedings c. /#ec tive proceedings d. -Compelled. broadcast or p blication %e.g. e' al time for candidates& e. Comm nication between spo ses 5. F alified privilege: a. "eports of p blic proceedings: e#c ses acc rate reports only b. 7 blic interest: e.g. statements to a parole board c. 4air comment and criticism: matters of general p blic interest
In#asion o$ pri#a y
Invasion of privacy is a relatively new tort, having been established within the last cent ry. There are fo r types: 1. Intr sions pon secl sion: wiretapping, peeping toms, etc. 2. 7 blic revelation of private facts 3. Commercial appropriation of li*eness 5. 7ortraying one in a false light Intr sion pon secl sion has these elements: 1. An act of prying or intr ding by defendant pon plaintiff1 2. The intr sion wo ld be ob,ectionable to a reasonable person1 and 3. The thing to which there is an intr sion or prying is -private.. 7 blic revelation of private facts: 1. 7 blication or p blic disclos re by defendant of private information abo t the plaintiff1 and 2. The reasonable person wo ld ob,ect to the facts being made p blic. 4or p blic revelation of private facts, the facts may be tr e. A p blic fig re s ally may not be a plaintiff in this type of action. $atters of p blic record may never constit te private facts. Appropriation of li*eness has one element: 1. ?na thori;ed se by defendant of plaintiff!s pict re or name for defendant!s commercial advantage. :imited to advertisements and promotions. 4alse light: 1. 7 blication of facts abo t plaintiff by defendant placing plaintiff in a false light in the p blic eye. 2. The -false light. wo ld be ob,ectionable to a reasonable person1 and 3. If the matter is of p blic interest, defendant m st have malice.
4alse light is defined as attrib ting to plaintiff views she does not hold or actions she did not ta*e. The right to privacy is personal. It does not e#tend to family members and is not assignable. 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 if reasonable, invalidates the defense. 2. 7rivileges: The privileges to defamation appear to apply to invasion of privacy as well.
.isrepresentation
7rima facie case: 1. $isrepresentation %false statement& made by defendant1 2. (cienter %defendant *new the representation was false&1 3. Intent to ind ce plaintiff!s reliance on misrepresentation1 5. Ca sation %i.e. act al reliance& 6. "eliance was , stifiable1 and >. +amages ?s ally, the misrepresentation m st be of a material past or present fact. In certain cases, a misrepresentation of opinion may be actionable1 this is act ally a , stifiability ' estion. 4ail re to disclose a material fact is not actionable nless: 1. There is a fid ciary relationship1 or 2. +efendant is selling real property and *nows plaintiff is naware of and cannot reasonably discover material information1 or 3. +efendant spea*s and her tterance deceives plaintiff %she m st inform plaintiff of tr e facts&. Active concealment is actionable. (cienter incl des *nowledge of falsity and rec*less disregard as to tr th or falsity. 0here scienter is absent, defendant may still be liable for negligent misrepresentation. +efendant m st intend reliance by plaintiff or a class of persons to which plaintiff belongs. In case of mislabeling of prod ct or misrepresentation of negotiable instr ment, the deception is contin o s and anyone who comes into possession of the
thing may s e. Third party reliance: :iability may attach where defendant made a misrepresentation to one party and plaintiff, a third party, relied on it, if defendant co ld reasonably foresee that plaintiff wo ld have s ch reliance. /.g. defendant!s false profit statement to stoc*bro*er: defendant liable to stoc*bro*er!s c stomer. "eliance: 7laintiff has no d ty to investigate tr th of defendant!s statement. ?s ally, only statements of fact, not opinion, are actionable. /#ceptions: 1. +efendant has s perior *nowledge1 or 2. (tatements of law by a lawyer, or statements of law that imply the e#istence of false facts %e.g. the pl mbing is p to code&1 or 3. (tatements of present intent, where defendant has control over f t re events. +amages: plaintiff m st have s ffered act al pec niary loss. 2egligent misrepresentation: 1. $isrepresentation made by defendant in a b siness or professional capacity1 2. 3reach of a d ty toward partic lar plaintiff1 3. Ca sation1 5. E stifiable reliance1 and 6. +amages.
/ron'$ul institution o$ le'al pro eedin's

$alicio s prosec tion: 1. Instit tion of criminal proceedings against plaintiff1 2. Termination favorable to plaintiff1 3. Absence of probable ca se for prosec tion1 5. Improper p rpose of defendant1 and 6. +amages. +efendant m st have instit ted criminal proceedings against plaintiff. This may be by warrant, arrest, indictment, etc. 7rosec ting attorneys are absol tely privileged and cannot be s ed for malicio s prosec tion. Termination favorable to plaintiff means that plaintiff m st have been ac' itted, case dismissed, charges dropped, etc. The termination m st indicate that the acc sed was innocent. Indictment by grand , ry is prima facie evidence that probable ca se e#isted. 8owever, fail re of grand , ry to indict is not evidence that no probable ca se e#isted.
If defendant instit ted the prior proceedings on advice of co nsel after f ll disclos re of the facts, this establishes probable ca se. $alice or improper p rpose is shown by any p rpose other than bringing the person to , stice. +amages m st be proved. 7 nitive damages are often awarded, since improper p rpose is already an element of the s it. +isting ished from false arrest in that the arrest itself was proper b t the prosec tion is malicio s. $ost , risdictions have e#panded the scope of the tort to incl de wrong lly instit ted civil proceedings. :ac* of probable ca se is harder to prove. Ab se of process is a separate tort. +efendant will be liable when she ses any form of process, civil or criminal, to bring abo t a res lt other than that for which the process was intended. /.g. garnishing an acco nt to force plaintiff to sign a lease. The action itself may have merit, b t it is instit ted for an lterior motive.
Inter$eren e 0it! *usiness relations

Interference with contract or with prospective economic advantage: 1. /#istence of a valid contract al relationship between plaintiff and a third party or a valid b siness e#pectancy of plaintiff1 2. +efendant!s *nowledge of the relationship or e#pectancy1 3. Intentional interference by defendant that ind ces a breach or termination of the relationship or e#pectancy1 and 5. +amage to the plaintiff. 2ot limited to e#isting contracts. Applicable to probable f t re b siness relationships. $ st have intent. $ost co rts do not recogni;e negligent interference, nless in combination with some other tort, s ch as negligent misrepresentation. An interferor!s cond ct may be privileged when it is a proper attempt to gain b siness for herself, partic larly if the interference is only with prospective advantages rather than e#isting contracts.
(uisan e
2 isance is not a separate tort, b t a type of harm: the invasion of private property rights, or interference with p blic rights s ch as health and safety.
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+efendant!s cond ct may have been intentional, negligent, or s b,ect to strict liability. Intentional is most common. 4or strict liability, co rts may refer to -absol te n isance. or -n isance per se.. 7rivate n isance is a s bstantial, nreasonable interference with another private individ al!s se or en,oyment of property he act ally possesses or has an immediate right to possess. If plaintiff has no property rights, he has no private n isance claim. The interference m st be offensive, inconvenient, or annoying to the average person in the comm nity. 4or n isance based on intent or negligence, the in, ry m st o tweigh the tility of the cond ct. +isting ished from trespass to land in that there need not be an interference with landowner!s right to e#cl sive possession, merely to her se or en,oyment. 7 blic n isance is an act that interferes with the health, safety, or property rights of the comm nity, e.g. bloc*ing a highway or sing a b ilding to commit criminal activities. "ecovery is available only if plaintiff has s ffered ni' e in, ries not s ffered by the p blic at large. +amages may be damages or in, nctive relief. In, nctive relief is only available where damages wo ld be navailable or inade' ate. <ne has the privilege to enter pon defendant!s land to se self@help to personally abate the n isance after notice is given and defendant ref ses to act. <nly force necessary to accomplish the abatement is allowed and plaintiff is liable for any harm done. +efenses: 1. :egislative a thority: cond ct consistent with ;oning laws, etc. is highly pers asive b t not concl sive proof that no n isance e#ists. 2. Cond ct of others: 2o one actor is liable for the cond ct of others. 3. Contrib tory negligence: only sed nder a negligence theory 5. -Coming to the n isance.: when a p rchaser *new of a n isance before moving in, she may still s e, so long as she did not move in for the p rpose of instit ting a harassing laws it.
General onsiderations $or all tort ases

1i arious lia*ility
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"espondeat s perior: /mployer vicario sly liable for tortio s acts committed by her employee if the tortio s acts occ r within the scope of the employment relationship. 4rolics and deto rs are not within the scope of employment if they are ma,or in time and geographic area. Intentional torts by employees are generally not within the scope, e#cept: 1. 4orce a thori;ed in the employment: e.g. bo ncer 2. 4riction generated by employment, e.g. bill collector 3. /mployee f rthering b siness of employer, e.g. removing c stomers from premises beca se rowdy. Independent contractors: 7rincipal generally not liable for acts of her agent when agent is an independent contractor. /#ceptions: 1. Independent contractor is engaged in inherently dangero s activities, e.g. blasting with dynamite. 2. + ty is nondelegable for p blic policy reasons, e.g. d ty to *eep b siness premises safe or d ty of motorist to *eep car in safe wor*ing order. /mployer may always be liable for her own negligence in selecting the employee or independent contractor. This is not vicario s liability. 7ersons engaged in a concert of action are regarded as members of a ,oint enterprise. /ach partner or ,oint vent rer is vicario sly liable for the torts of the others. A ,oint vent re m st have a common p rpose %sometimes a common b siness p rpose& and m t al control. A tomobiles: general r le is that owner is not vicario sly liable. (ome states ma*e owner liable for immediate family members. <thers impose liability for anyone driving with owner!s consent. In these cases, the owner is liable b t may collect from the negligent party. <wner may always be liable for her own negligence in entr sting the car to a partic lar driver. This is not vicario s liability. 3ailor is not vicario sly liable for torts of bailee, b t may be liable for her own negligence in entr sting the bailee. 7arents are not vicario sly liable for torts of their children at common law. $ost states ma*e parents liable for willf l and intentional torts of their children p to a certain dollar amo nt %e.g. G6,CCC&. 2ote on capacity for intentional torts: a child or insane person is liable so long as they intended the action re' ired by the tort. If an insane person intended a harmf l or
offensive contact with a person, it does not matter what other circ mstances the insane person tho ght were present. 8owever, if the insane person intended a contact with a person whom she believed was a horse, then she is not liable for battery. Co rts may impose vicario s 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 dr n*en c stomers! torts. $any states have enacted -dramshop acts. imposing liability. <ther states! co rts have imposed liability witho t dramshop acts, based on ordinary negligence. Joint and se#eral lia*ility 0hen two or more tortio s acts combine to form an indivisible in, ry, each tortfeasor is ,ointly and severally liable for the in, ry. This means that each is liable to the plaintiff for the entire damage. If the in, ry is divisible, then ,oint and several liability does not apply nless the tortfeasors were acting in concert. (tat tory limitations on ,oint and several liability in some states where: 1. 7laintiff more at fa lt than tortfeasors1 or 2. 4or noneconomic damages. In s ch sit ations, the tortfeasor is liable only proportional to her fa lt. (atisfaction: 0hen plaintiff recovers f ll payment from a tortfeasor, there is satisfaction, and she may not recover against another ,oint tortfeasor. "elease: A release is s rrender of the ca se of action against a party. At common law, s ch a release against one ,oint tortfeasor necessarily released the others. A ma,ority now re,ect that r le. "ather, the claim against the others is red ced by the amo nt stip lated in the agreement or by the amo nt of consideration paid, whichever is greater. Contrib tion: Adopted in most states, allows a tortfeasor who pays more than her share of damages to have a claim against any other ,ointly liable parties for their shares. Th s, contrib tion is a device for apportionment. $ethods of apportionment: 1. Comparative: in proportion to relative fa lt %ma,ority& 2. /' al shares %minority& Contrib tion is not allowed in favor of those who committed intentional torts. Indemnity involves shifting the entire loss between or among tortfeasors, in contrast to
apportioning it as in contrib tion. Available in these circ mstances: 1. "ight to indemnity by contract 2. Dicario s liability 3. Indemnity nder strict prod cts liability 5. Identifiable difference in degree of fa lt a. "etailers who negligently rely on prod ct!s condition may receive indemnification from man fat rer who negligently man fact red it. b. (econdary d ty: one with primary d ty may recover from one with secondary d ty c. ActiveBpassive: one who is passively negligent may recover from one who is actively negligent. $ost states with comparative negligence systems re,ect indemnity in degree of fa lt sit ations, instead simply applying comparative negligence. $ost states now se a comparative contrib tion system based on the relative fa lt of the tortfeasors. Sur#i#al and 0ron'$ul deat! a tions At common law, a tort action abated at the death of either the tortfeasor or the victim. $ost states have changed this via -s rvival acts.. In most states, highly personal torts s ch as defamation or malicio s prosec tion still e#pire on victim!s death. 0rongf l death acts may be bro ght by the personal representative or s rviving *in of the deceased. <nly for pec niary losses, not pain and s ffering of decedent. "ecovery in the case of children or elderly people is allowed, tho gh it will s ally be ' ite modest. Creditors of the decedent have no claim against the amo nt awarded. +efenses: contrib tory negligence of the deceased. Tortious inter$eren e 0it! $amily relations!ips :oss of consorti m: (po ses may recover damages for loss of consorti m or services beca se of in, ries to the spo se ca sed by defendant!s cond ct, whether intentional, negligent, or based on strict liability. 7arents have a similar action for loss of children!s services, b t children have no action for loss of parent!s services.
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The action is derivative and depends on potential s ccess of the in, red person!s own action. Th s any defense that wo ld prevent recovery by the in, red person will apply to the derivative action. Tort immunities At common law, immediate family members co ld not s e each other in tort for personal in, ry. $ost states have now abolished interspo sal imm nity. 7arent@child imm nity is limited. A s it for property damage is s ally not s b,ect to family imm nity. )overnmental nits were traditionally not s b,ect to tort s its nder sovereign imm nity. This imm nity is now limited. The ?.(. federal government has waived imm nity e#cept: 1. assa lt, battery, false imprisonment, false arrest, malicio s prosec tion, ab se of process, libel and slander, misrepresentation and deceit, and interference with contract rights. 2. +iscretionary acts: imm nity not waived for acts at the planning or decisionma*ing level rather than the operational level. 3. )overnment contractors may assert governmental imm nity when they conformed to government specifications $ost states have waived their sovereign imm nity to the same e#tent as the federal government. $ nicipalities: abo t half the states have abolished m nicipal imm nity. 8owever, in the case of a p blic d ty, a special relationship between the m nicipality and the plaintiff m st be shown for liability to attach. 0here imm nity still e#ists for m nicipalities, it is s ally only for traditional government f nctions, not f nctions that co ld , st as easily be performed by a private entity. 7 blic officials and charities may also have limited imm nity.
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Torts Just The Rules

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Torts Just The Rules

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TORTS: JUST THE RULES

Companions in a social vent reBcommon nderta*ing $ t al dependence

Ca se@in@fact: +etermined as in ordinary negligence. 2ote that if yo identified different

/ron'$ul institution o$ le'al pro eedin's

Inter$eren e 0it! *usiness relations

General onsiderations $or all tort ases

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