Who is the plaintiff? Who is the defendant/who are the defendants? Who are the responsible parties? What is the plaintiffs injury or injuries? What legal theory/theories can the plaintiff assert? Make sure that it is a torts question I. INTENTIONAL TORTS A. Elements of Intentional Torts !"# $ %& ' Voluntary Act a (efinition: EXAMPLE: $f )o* pushes (irk into +riscilla and +riscilla sues (irk, there is no liability for an intentional tort because (irk did not engage in any voluntary act EXAMPLE: (ina, during a sudden epileptic sei-ure, hits +oinde.ter While (ina did not intend the har*, there is also no liability because there was no voluntary act by (ina / Intent a 0or *ost intentional torts, intent is established if the defendant either: !'& !/& 1 Causation a b +ro.i*ate cause in intentional torts: 23%M )$+ 4 Harm a Varies based on the ind of intentional tort. b !ays to establish harm in intentional torts: !'& !/& 5 "o Pri#ile$e or %efense H&P'THETICAL (ell sees his archrival +ratt walking across the street %lthough (ell thinks its unlikely he can throw a stone that far, (ell picks up a nearby stone and throws it at +ratt 6as (ell acted with purpose/intent such that he *ay be found liable for tortious conduct? H&P'THETICAL (arla, due to boredo*, decides to shoot her 77 gun into a passing co**uter train 8he doesnt want to hurt anyone, but knows that the trains at that hour will be packed with passengers 8he shoots her gun at a full passenger car passing by her, hitting +la. 6as (arla acted with intent such that she *ay be found liable for tortious conduct? H&P'THETICAL 8i.9year9old 7rian (ailey pulls a chair out fro* where he knows Mrs :arrett is sitting $f 7rian knew that it was substantially certain that this would cause Mrs :arrett to fall to the ground, has he acted with intent? H&P'THETICAL (elbert is late for his )orts class Without looking where he is going, he runs out of the library and collides with +arker 6as (elbert acted with intent? (. (attery !"# $ 7& ' % battery arises where: a 2le*ents: !'& !/& !1& / )o establish intent, plaintiff has to show either: a b c 7e sure to distinguish intent fro* *otive EXAMPLE: +ete co*es into bar review and sits ne.t to (awn and says ;*y neck is killing *e< (awn says that he has decided to learn how to beco*e a chiropractor and offers to help +ete refuses but (awn grabs his neck and pulls Whether +ete feels better or not, it is a battery and (awn had intent d Transferred Intent !'& EXAMPLE: (orkus throw a rock at 3avier, but the rock *isses 3avier and hits +o*pador instead +o*pador sues (orkus, and (orkus would be liable because he intended to co**it a battery on 3avier e Incom)etency !'& EXAMPLE: (olores shoots +atty because she thinks +atty is 6itler (olores is liable for battery not withstanding her insane delusion because she had purpose to cause contact 1 )he har*ful or offensive contact ele*ent is satisfied if: EXAMPLE: +unching %rnold 8chwar-enegger would be enough to constitute battery, even if he is not injured a %ny contact that would be offensive to a reasonable person is enough for battery EXAMPLE: +rissy hates to be touched and believes that when people touch her, they are trying to pass alien beings into her body (ale taps her on the shoulder and asks her for the ti*e +rissy freaks out and sues (ale for battery (ale was trying to touch her, but it was not har*ful or offensive to a reasonable person !'& $f defendant knows the particular susceptibility of the plaintiff: b $t is sufficient for a battery if defendant causes a contact with so*ething close to plaintiff EXAMPLE: Workers at a workplace found the coffee to be increasingly unpleasant )hey hid ca*eras and found out that a colleague was urinating into the coffee urn )his would be battery c =nlike assault, plaintiff need not be aware of the contact EXAMPLE: $f +atsy falls asleep and while she is asleep, 7arney kisses her on the forehead +atsy finds out the ne.t day and sues for battery 8he would be able to recover 4 +rivileges and (efenses a C. Assault !"# $ C& ' %n assault arises where: a 2le*ents: !'& !/& !1& / )o prove intent, defendant *ust: a b c )ransferred intent often arises with: EXAMPLE: (une wants to scare +i*, so she throws a knife towards +i* but it ends up stabbing hi* in his leg (une intended to co**it assault but there is also a clai* for battery $ntent for assault satisfies intent for battery EXAMPLE: 7eavis has been harassing (onny at school (onny decides that he wants to end this so he will scare 7eavis into not picking on hi* (onny finds his fathers loaded =-i and brings it to school with the intent si*ply to scare 7eavis (onny accidentally pulls the trigger just as +recious co*es walking out and gets hit in the right ar* 7eavis can sue for assault +recious can bring an action for battery 1 >easonable apprehension: E*am)le: 8app worked at a clock repair store Mrs 6ill co*es into the store and finds 8app drunk Mrs 6ill inquires about getting her clock fi.ed 8app reaches toward Mrs 6ill and asks to pet her and fi. her clock 8he sues for assault $ssue was about how wide the counter was because it deter*ined whether Mrs 6ill could have a reasonable apprehension of a battery 4 $**inence: EXAMPLE: $f (racula says he will co*e back to*orrow to suck your blood, it is not an assault 5 #ook for ele*ents that negate intent ? @ou often have assault and battery together EXAMPLE: )hrowing a water balloon at so*eone creates the reasonable apprehension of a battery !assault& and then being struck by the balloon is the actual battery a @ou can have one without the other EXAMPLE: 7attery without assault: EXAMPLE: 8leeping plaintiff is never in apprehension but suffered a battery EXAMPLE: %ssault without battery: EXAMPLE: Aear9*iss case B Words alone rarely create an assault EXAMPLE: +arker is walking down a deserted alley and heard a voice saying that they have a gun pointed at his head )his is enough for an assault even though it was co**itted by words C Must be an intentional threat of an i**inent battery EXAMPLE: (o* and +at are studying together for the bar e.a* (o* notices that +at has put together checklists and diagra*s for herself and wants to borrow it +at says no, (o* gets *ad and grabs her cat and holds it over the balcony, threatening to drop the cat unless +at gives hi* her outlines +at sues (o* for assault )his is not an assault or battery %. +alse Im)risonment !"# $ (& ' 0alse i*prison*ent arises where: a 2le*ents: !'& !/& !1& !4& / (efendant has the requisite intent for false i*prison*ent if he: a b c Motive is irrelevant EXAMPLE: )arget e*ployees are e.cited for their holiday party %fter the store closes, they will go out %t D p*, without checking to see if anyone is in the changing roo*s, so*eone locks up the store and +atina gets locked in all night and sues for false i*prison*ent 8he would lose because she could not prove intent 1 Confine*ent: a Ao duration of confine*ent is required: b Confine*ent generally occurs by: !'& )hreats of reputational har* are generally insufficient EXAMPLE: (avid tells +ablo that if he leaves his roo*, (avid will tell the world that +ablo is a virgin +ablo stays in for a *onth and then sues (avid for false i*prison*ent Ao confine*ent can be found because this was a threat of reputational har* c $f plaintiff knows of a reasonable *eans of escape: EXAMPLE: $f there is an open window on the first floor and the plaintiff knows about it, there is no confine*ent $f there is an open window on the third floor and plaintiff would have to ju*p and risk injury, this is not a reasonable *eans of escape !'& >isk of e*barrass*ent is not a reasonable *eans of escape EXAMPLE: 8tuart takes all of 8usans clothes and leaves her in the *iddle of the woods 7ecause 8usan does not have a *eans of escape, 8tuart has falsely i*prisoned her 4 %gainst the plaintiffs will: EXAMPLE: +la.is is apprehended by an undercover store detective 6e is taken to a back roo* to call the police +la.is says he will wait for the police and then threatens to sue for false i*prison*ent but cannot because he has consented to the confine*ent 5 6ar* or da*ages: a $f the plaintiff is aware she is being confined: b $f the plaintiff is not aware that she is being confined: EXAMPLE: $f during a lecture, all of the doors in the roo* were locked but students did not try to leave, there is no false i*prison*ent $f one person tries and cannot get out, there is a false i*prison*ent clai* EXAMPLE: $f a baby is locked in a roo*, the baby probably does not know of the confine*ent $f there was so*e sort of physical har*, there would be a clai* "therwise, no false i*prison*ent H&P'THETICAL (elbert quickly locks +rofessor #ongwindeds classroo* door during a )orts class, unlocking the roo* an hour later at the end of class 2very student is so engrossed in the lecture that nobody tries to leave the roo* during the class $s (elbert liable for false i*prison*ent? ? 0alse arrest: E. Intentional Infliction of Emotional %istress !"# $ 2& ' $ntentional infliction of e*otional distress arises where: a 2le*ents: !'& !/& !1& !4& / Mental 8tate: (efendant *ust act with intent to cause severe *ental distress or be reckless in creating the risk of e*otional distress a $ntentional: !'& !/& b >ecklessness: EXAMPLE: (ora had an ongoing feud with +avala (ora calls +avala, disguises her voice and says ;this is :eneral 6ospital @our child has just been rushed to the e*ergency roo*< +avala suffers severe e*otional distress (ora has the intent for $$2( $t was her goal to cause e*otional distress and knew it was virtually certain EXAMPLE: (ora is at the hospital and walks by the desk where people check in and overhears a discussion and thinks that one of the nurses is saying that +avalas child has been rushed to the e*ergency roo* (ora calls +avala )his would suffice for $$2( because it would be a for* of recklessness c Ao transferred intent doctrine, but: EXAMPLE: (on stabs +auls father in front of +aul $f (on knows that +aul is there and knows that his victi* is +auls father and +aul suffers e*otional distress, +aul could recover against (on for $$2( not because of transferred intent, but because (on was reckless 1 )he ele*ent of e.tre*e and outrageous conduct is satisfied if: a "ffensive or insulting language is generally not considered outrageous EXAMPLE: (elilah, in front of everyone, says that +aulas dress is cheap and ugly +aula is hu*iliated and has a heart attack fro* e*barrass*ent and sues for $$2( +aula would lose 7 EXCEPTI'",: !'& !/& EXAMPLE: (ratt knows that +on is superstitious and releases black cats onto his property and sends hi* shattered *irrors )his would generally be tolerated, but since (ratt acted to e.ploit +ons susceptibility, it would be considered $$2( !1& 4 Causation issue that *ight arise: 5 8evere e*otional distress a +laintiff does not have to prove: b +laintiff si*ply has to prove: +. Tres)ass to Land !"# $ 0& ' )respass to land is: a 2le*ents: !'& !/& !1& / )o establish intent, plaintiff needs to show that: a b EXAMPLE: $rene is driving around and gets lost in an unknown area 8he sees (ennis standing on the sidewalk $rene pulls over and asks (ennis for directions to the freeway entrance (ennis says to take his dirt road to the end, and *ake a left +roperty doesnt belong to (ennis, but to +rince who has hidden ca*eras 0inds $rene and sues her for trespass +rince will recover because $rene intended to enter that land and (ennis intended to get $rene to enter the land c Mistake is not a defense as to a trespass action 1 When a person is trespassing, they are liable for the full e.tent of their har* EXAMPLE: $rene is driving carefully across the dirt road, hits a pothole and loses control 8he hits an a-alea bush worth E'5,FFF 8he is liable for this destruction because it occurred while she was trespassing 4 2ntry: EXAMPLE: (arla fires a gun across +entiu*s property )his constitutes trespass because the bullet crossed the property of the plaintiff 5 +laintiffs land: a EXAMPLE: (arla thinks she is crop dusting her own land but the pesticide lands on "wens land 6e has leased the property to )o* )o* can bring a trespass to land action because he is in possession of the land $f per*anent da*age occurred, the owner would have a clai* ? >e*edies a )hree types of re*edies in tort: !'& !a& !/& !a& !1& !a& b )respass to land: !'& !/& !1& !a& !b& -. Tres)ass to Chattels !"# $ :& ' )respass to chattels arises where: a 2le*ents: !'& !/& !1& !4& / $ntent is satisfied when: EXAMPLE: (ale is leaving a restaurant and takes a blue deni* #evis jacket, believing it is his but it is really +auls )his is sufficient to create intent for trespass to chattels 1 Conduct giving rise to trespass to chattels: 4 6ar*: EXAMPLE: Geeping the jacket for five *inutes is not significant enough Geeping the jacket for a week would be and +aul would likely be able to recover the rental value of the jacket EXAMPLE: +a* and (e.tra are at +a*s apart*ent )hey are playing a ga*e where every ti*e ;foreseeability< co*es up, they do a shot of tequila "nce they finish the first bottle, +a* says she will go to the store to get *ore +a*s dog is in the backyard and +a* tells (e.tra not to let the dog in the house or touch the dog +a* co*es back to find (e.tra holding the dog and sues for trespass to chattels $f the dog is not har*ed, there is no case a >e*edies: !'& !/& H. Con#ersion !"# $ 6& ' Conversion arises where: a 2le*ents: !'& !/& !1& / $ntent: EXAMPLE: (ale takes +auls jacket and loses it 8ued for conversion $s liable 6ad the purpose to e.ercise do*inion and control over the jacket and by losing it, there is a serious and substantial interference (ale would have to pay fair *arket value 1 7ona fide purchaser for value EXAMPLE: Cruella steals +rissys Ming vase worth E',FFF,FFF Cruella sells the vase to (rake, who pays fair *arket value +rissy can sue Cruella for conversion $f +rissy cannot find Cruella, (rake is a converter as well and can be sued 2ither has to pay E',FFF,FFF to +rissy or return the vase 4 >e*edies and da*ages a )ypical re*edy is forced sale: b >eplevin: )>28+%88 )" C6%))2#8 C"AH2>8$"A $ntentional tort $ntentional tort Co**itted by intentionally dispossessing or inter*eddling with a chattel in the possession of another Co**itted by intentionally e.ercising do*inion or control over a chattel and seriously interfering with the rights of the owner (efendant is liable for da*age or di*inished value of chattel (efendant is liable for the full value of the chattel at the ti*e of the conversion I. %efenses and Pri#ile$es to Intentional Torts !"# $ $& >e*e*ber +"+C%A8 Privilege 'thers Property Consent Authority "ecessity ,elf9defense ' Consent a $f the plaintiff does consent: b +laintiff can *anifest consent e.pressly, by i*plication, or as a *atter of law !'& E*)ress consent e.ists where: EXAMPLE: +rofessor is concerned about his weight and needs to stop eating )winkies )ells class that if they see hi* eating a )winkie, do whatever it takes to stop hi* 8tudent grabs his ar* and pulls the )winkie away, professor sues for battery Would lose, gave e.press consent 23%M )$+
!a& #i*itation: !/& $*plied consent arises where: EXAMPLE: 3 plays pickup basketball (uring the ga*e, an opposing player trips hi* and causes hi* to injure his leg 2ven if done intentionally, 3 had i*pliedly consented by agreeing to play !a& #i*itation: !b& 8tandard is: EXAMPLE: +olly is in line for a vaccination but does not know this "ffers her ar* and receives an injection +olly sues for battery, but there was i*plied consent >easonable to believe consent had been given c Mistake can vitiate consent when: EXAMPLE: (ale is about to beco*e inti*ate with +enny when +enny asks if he has herpes (ale, knowing he does, lies and denies it and then sleeps with +enny +enny gets herpes and sues (ale Will not be dee*ed to have consented $f +enny is a prostitute and they engage in se.ual relations and (ale pays +enny with a counterfeit bill, there is still consent because the counterfeit bill is a collateral *atter H&P'THETICAL 7illy Club asks 6i*a )oh*a if he can hit her with his new baseball bat 6i*a responds, ;8ureIyou cant swing that foa* bat hard enough to hurt *e anyway< 7illy, knowing that the bat is, in fact, *ade of wood, swings and hits 6i*a Can 7illy clai* the defense of consent for the battery? / ,elf.%efense a %rises where: !'& (efendant only need be reasonable and *ust respond with proportionate force b "nce the threat is over: EXAMPLE: (onna and +aula e.changed harsh words +aula says ;wait until the ne.t ti*e $ see you alone $ a* going to teach you a lesson< (onna is alone in a parking lot that night when she sees +aula walking towards her with so*ething in her hand (onna picks up a stone and throws it and hits +aula, causing injury +aula sues for battery (onna intended contact but argues self9defense based on the earlier threat 2ven if +aula was only carrying a fishing pole as an apology gift, if (onna believed she was threatened, she can respond accordingly c )he force used *ust be proportionate to the threat: !'& !/& >etreat: !a& !b& H&P'THETICAL (ylan sees +ercy approaching hi* in a bar, with a baseball bat poised to strike hi* 7elieving that +ercy intends to hurt hi*, (ylan wrestles +ercy to the ground $s (ylan still privileged to defend hi*self if it turns out that +ercy was not actually intending to hurt (ylan? 1 %efense of 'thers a EXAMPLE: $gor overheard the threat that +aula *ade to (onna (onna is in the parking lot when $gor sees +aula walking towards (onna $gor picks up a stone, throws it and hits +aula +aula sues for battery $gor could successfully assert defense of others because he reasonably believed that (onna was at risk of i**inent har* and responded with proportionate force 4 %efense of Pro)erty a b % defendant *ay never use deadly force to protect personal or real property !'& c "ne *ay use reasonable force to eject a trespasser fro* personal property after asking the* to leave d >ecapture of chattels: EXAMPLE: (ale took +auls jacket +aul saw it and asked for it back (ale takes off with the jacket +aul can chase (ale and use reasonable force to get it back 5 "ecessity a b +ublic necessity: EXAMPLE: 2arthquake starts a fire in the city and to stop the fire, (evilla dyna*ites +a.tons ho*e to stop the spread of the fire +a.ton sues for conversion and trespass to land +a.ton would lose )he greater good was trying to stop the fire !'& Could raise 0ifth %*end*ent takings issues c +rivate necessity: EXAMPLE: (e*ora is out on the water in a s*all boat loaded down with i*portant cargo when a stor* arrives (e*ora takes her boat and ties it to +rinces dock notwithstanding the ;Ao )respassing< signs (e*ora could assert this defense !'& (efendant will be liable for any har* caused during the e.ercise of the privilege H&P'THETICAL (ev is boating on a lake when his *otor boat springs a leak Concerned that he will sink and drown, (ev *otors to the nearest dock, which belong to +aulo (ev ties his boat to +aulos dock and walks across +aulos land in search of help )he boat da*ages the dock while *oored there $s (ev liable to +aulo for trespass? for the da*age to the dock? ? Authority a Arrest !'& 0elony: !/& Misde*eanor: !1& +rivate individuals: b ,ho)ee)er/s Pri#ile$e !'& EXAMPLE: (rug Co has an undercover detective who sees +a.ton shopping on a hot day in a long heavy coat 6e believes he saw +a.ton put so*ething into the pocket of the coat :rabs and detains hi* until the police deter*ine that he did not take anything (epends on length and *anner of detain*ent c %isci)line !'& BAR EXAM APPLICATION Juestion ' (avids neighbor, Kack, is a *usician and practices with his tru*pet every day, late into the night "ne day, (avid saw Kack at the local grocery store 0rustrated by the a*ount of noise co*ing fro* Kacks house every night, (avid approached Kack fro* behind and yelled, ;$f you dont stop playing the tru*pet, one day $ a* going to kill you< =nknown to (avid, Kack was wearing the earplugs he wore to perfor* live and did not even know that (avid was speaking to hi* (is*ayed by Kacks apparent indifference, (avid telephoned Kack and repeated the threat Kack was shocked to discover his neighbor disliked his *usic, and quickly apologi-ed )hat night Kack went to bed early and did not practice his tru*pet $n a cause of action against (avid for assault, Kack will %& prevail, if the reason he refrained fro* practicing his tru*pet was fear of retribution fro* (avid 7& prevail, because he was upset by the telephone call and (avid should reasonably have known that he would be C& not prevail, because he was unaware of (avids state*ents in the store (& not prevail, because (avid said ;one day $ a* going to kill you< BAR EXAM APPLICATION Juestion / #arry, the owner of a s*all bookstore, is very concerned about a recent wave of shoplifters wearing sweatshirts with large pockets and sneaking books out in the pockets )wo days after the *ost recent shoplifting incident, on a particularly war* day, )i* entered #arrys bookstore wearing a sweatshirt si*ilar to those worn by the shoplifters #arry noticed )i*s sweatshirt and watched hi* spend over an hour slowly *oving through the various book stacks 2.pecting the worst, #arry *oved a large heavy book cart in front of the front door, and called the police station to report a shoplifter )i* eventually *oved to the cash register to pay for his selection of books %fter paying for his books, )i* discovered his e.it was blocked by the book cart 8hortly thereafter, the police arrived and asked )i* to e*pty his pockets )i* did not have anything in his sweatshirt pockets )i*s cause of action for false i*prison*ent will %& fail, because the shopkeepers privilege will prevent the cause of action 7& fail, because )i* was not har*ed by the confine*ent C& succeed, because )i* was aware of the confine*ent (& succeed, because )i* was not in fact a shoplifter II. NEGLIGENCE A. Introduction ' 0ra*e the ele*ents as follows a (uty: b 8tandard of Care: c 7reach of (uty: d Cause in 0act: e +ro.i*ate Cause: f (a*ages: g (efenses =se headings on a negligence questionIseparate out the ele*ents "n an essay, use the facts and engage in analysis (. %uty !"# $$ %& ' :eneral duty rule: a (uty is a significant issue where there is: !'& !/& !1& !4& / =nforeseeable +laintiffs a $n the fa*ous +alsgraf case, Kustice Cardo-o articulated the rule that: EXAMPLE: (rudge is driving negligently, ju*ps the curve and collides into the back of a parked car )he parked car contained e.plosives, and a huge e.plosion occurred )hree blocks away, +olyanna was walking down the street and was hit by a piece of falling glass fro* the e.plosion 8he sues (rudge for negligence and will lose because she is not a foreseeable plaintiff 23%M )$+ b >escuers: H&P'THETICAL (ella negligently fails to *aintain a stool in her ice crea* parlor 3ena, a custo*er, sits on the stool and falls on to the ground because of the disrepair of the stool +arker runs across the ice crea* parlor to help 3ena, but slides on the ice crea* 3ena dropped when she fell, breaking his ankle (oes (ella owe 3ena a duty? +arker? 1 Aonfeasance: a Misfeasance: !'& !/& EXAMPLE: (ebo is driving and because he is not paying attention, fails to stop at a stop sign "wes a duty to plaintiff )his was *isfeasance, created an affir*ative risk of har* b Aonfeasance begins with the assu*ption that there is no duty at all !'& (uty to rescue or aid EXAMPLE: (iablo is walking on the railroad tracks when he hears the sound of a baby crying 6e knows a train is co*ing and watches it kill the baby )he parents of the baby sue (iablo for negligence (iablo owes no duty !a& EXCEPTI'",: '& EXAMPLE: (e.ter is driving across a narrow bridge and is driving on the wrong side of the center line +olly tries to avoid hi* and drives off the bridge (e.ter has a duty /& EXAMPLE: (elilah is on a deserted beach and sees a car fly over a bridge into the water (elilah has no obligation to rescue, but if she undertakes to act she cannot then swi* away a& 8o*e jurisdictions say you are only liable if you leave the defendant in a worse position b& :ood 8a*aritan statutes: 1& EXAMPLE: +alatin calls (ina saying that he has chest pains (ina says she will take hi* to the 2> "n her way over to his house, (ina runs into friends and goes with the* instead of +alatin 8he owes hi* a duty because she said she would co*e to his aid 4& EXAMPLE: $f (iablo was the father of the baby on the railroad tracks, he would have a duty to rescue it Co**on carrier/passenger $nnkeeper/guest Captain/passenger or sea*an (rinking buddies H&P'THETICAL (arla, an e.pert swi**er, is sunbathing on a deserted beach when suddenly +aulos car drives off a bridge and into the water $s (arla liable if she ignores +aulos plight and continues sunbathing? What if she starts bringing +aulo back to shore, then abandons the rescue because she spots a rare fish she wants to inspect? H&P'THETICAL (ino, a driver for Mauvehound 7us #ines, sees that a passenger is having difficulty breathing (oes (ino have a duty to co*e to the passengers aid? (o the other passengers? !/& %uty to control third )arties EXAMPLE: (elberto and )ina are strangers sitting ne.t to each other at a bar )hey start chatting and )ina says her husband is going to co*e by and pick her up 8he says she is going to kill hi* when he does )ina leaves and shoots her husband 6usband sues (elberto for not warning hi* !a& )here is no duty to control the conduct of a third person as to prevent hi* fro* causing physical har* to another !7& EXCEPTI'": EXAMPLE: % prison has a dangerous cri*inal locked away and the cri*inal escapes )he prison has a duty to warn people in the neighborhood EXAMPLE: % *other knows that her son always tries to kill babysitters when she leaves hi* with the* 8he *ust warn the babysitter EXAMPLE: +sychotherapist e.ercises enough control that when they know of the patients dangerous propensity, there is a duty to warn the party that *ight be in danger !c& +roviders of alcohol '& )raditional rule: /& (ra* 8hop %cts: !d& Aegligent entrust*ent: EXAMPLE: 0ather gives son a gun to play with $f son shoots a third party, the father can be sued !1& (uty to +rotect: !a& !7& EXCEPTI'",: '& H&P'THETICAL )enant +a.ton is robbed at gunpoint by a stranger while in the laundry roo* of his apart*ent building owned by (rucilla %nother tenant was robbed in the laundry roo* last *onth Can +a.ton proceed with a negligence action against (rucilla? 4 When the defendant is a govern*ental entity, the question of whether the defendant owes a duty to the plaintiff will depend on the function the govern*ent is fulfilling that gives rise to the cause of action a +roprietary function: !'& !/& b (iscretionary activity: !'& !/& c Ministerial function: !'& EXAMPLE: +arlu is injured at an intersection when she it hit by a car 8he sues the city, saying there should have been stop sign City will probably win )he decision of where to place the stop sign is a judg*ent decision on the part of the city EXAMPLE: $f the stop sign was installed incorrectly, +arlu would be able to recover against the city !/& +ublic duty doctrine: When a govern*ent agency !eg, police, fire depart*ent& is sued for failing to provide an adequate response, courts will find no duty !%& EXCEPTI'",: '& /& d $f the defendant is a utility: 5 $f the plaintiffs injury is not personal injury or property da*age, duty issues arise a Emotional %istress !'& EXAMPLE: (ell is speeding and driving negligently 6e collides with and injures +uka, breaking her leg in five places +uka cannot work, has a lot of *edical bills and her car is destroyed 8he is in great pain and will walk with a li*p for the rest of her life +uka can recover for pain and suffering !/& %irect Actions: !a& $n *ost jurisdictions, to recover for e*otional distress the plaintiff *ust: '& /& EXAMPLE: +avi is standing on the sidewalk waiting to cross the street (ab ju*ps the curb, al*ost gets run over but ju*ps away +avi has a heart attack because he was al*ost run over % duty is owed because +avi was in the -one of danger 1& EXCEPTI'",: a& b& !b& $n a *inority of jurisdictions, if defendant has a pree.isting duty to plaintiff, plaintiff *ay recover for negligent infliction of e*otional distress !1& (ystander Actions: !a& Many jurisdictions require the bystander to have been in the -one of danger !6owever, *ost courts have now adopted so*e version of the bystander liability rule % plaintiff *ay recover for negligent infliction of e*otional distress under a bystander theory if he !'& was located near the scene of an accidentL !/& suffered severe e*otional distressL and !1& had a close relationship with the victi*& EXAMPLE: Mo* and (ad go out for a walk with Kunior (ad and Kunior are holding hands and crossing the street, Mo* stopped to tie her shoe % negligently driven car runs over and severely injures Kunior (ad ju*ps out of the way Mo* watches the events Mo* and (ad both have heart attacks and sue the driver for A$2( =nder M72, only (ad can recover because he was in the -one of danger Would have direct and bystander action Mo* cannot recover !b& 8o*e jurisdictions allow plaintiffs outside the -one of danger but on the scene of the injury to recover for e*otional distress b !ron$ful Conce)tion0 !ron$ful (irth0 !ron$ful Life "n the M72, this is usually a wrong answer due to the jurisdictional splits EXAMPLE: 3ena goes to see (r (estructo for a*niocentesis and (r co**its *alpractice and punctures the fetus lung Child is born with a collapsed lung Child can sue (r because negligence is why he has a collapsed lung !'& Wrongful conception applies where the injury is: !a& (a*ages typically involve: !/& Wrongful birth is: !a& Wrongful birth clai*s generally ste* fro*: !b& (a*ages: !1& Wrongful life is: ? #and +ossessor #iability 23%M )$+
a Plaintiffs on the land !'& In#itees !a& %n invitee is: EXAMPLE: 8hoppers in a store or patrons in a *useu* !b& (efendant has a duty to e.ercise reasonable care to prevent injuries to invitees caused by activities conducted on his land !/& Licensees !a& % licensee is: H&P'THETICAL (elbert invites his class*ate +aco to dinner at his ho*e +aco is injured when his hand is cut on a piece of broken tile in (elberts bathroo* $s +aco a licensee or an invitee? !b& #and possessors *ust warn licensees of: !1& Tres)assers !a& )respassers are: !b& "nly obligation on the land possessor is: !4& 8tatus can be debatable and can change EXAMPLE: % (ean is having an open house for students of her law school When +arton trips over a sprinkler head covered by grass and breaks his ankle, he sues (ean 6e is probably an invitee because he was there to confer a benefit on (ean )here is a duty, but has (ean been reasonable? +arton starts wandering around the house and ends up cutting hi*self on a piece of broken *arble Ao longer an invitee Could he have reasonably believed that he had i*plied consent to be in that part of the house? $f a licensee, (ean had a duty to warn $f a trespasser, no duty to warn !5& "ther duties owed by land possessors !a& %ctivities on the land: !b& "nly for an invitee does a land owner have a duty to search out dangers on the property !c& $f there are known or frequent trespassers: EXAMPLE: (abya knows of trespassers $f she builds a crocodile pit and hides it, she *ust put up a warning of the dangers $f there is naturally occurring quicksand, she does not need to warn !?& child Tres)assers 1Attracti#e "uisance %octrine2 !a& $f the conditions apply, even though there is a trespassing child, the child will be treated like an invitee !b& 0ive factors: '& /& 1& 4& 5& EXAMPLE: 8i.9year9old +ablo is trespassing on (evins land (evin is building a new barn so there is scaffolding and construction +ablo starts walking around when one of the boards cracks, he falls and breaks his back +ablo sues (evin Court will apply the factors !B& Minority approach: b Plaintiffs not on the land 1but ad3acent to it2 !'& %rtificial condition on the land: !/& Aatural condition on the land: EXAMPLE: (esiree builds a fau. 2iffel )ower on her property "n a windy day, a piece of the tower breaks loose and hits +ierre on the head +ierre sues (esiree 8he owes hi* a duty of reasonable care $f +ierre is blinded by a naturally occurring quicksand pit, he is not owed a duty c Landlords and Tenants !'& #andlords are not liable unless: !a& !b& !c& !d& C. ,tandard of Care !"# $$ 7& ' 4easonably Prudent Person 5nder the ,ame or ,imilar Circumstances a "bjective standard of care: b Must deter*ine what circu*stances are relevant EXAMPLE: 1F9year9old (olores has lived her entire life in A@C 8he has never driven a car (olores accepts a job in #%, takes the driving test and passes "n her first day as a licensed driver, she collides with +inky and +inky sues )he fact that it is her first day is irrelevant !'& (efendant *ust rise up to the level of the average person in the co**unity !/& We do not consider: !1& We do take into account: !a& !b& EXAMPLE: (elbert is notified that his child was injured and taken to the hospital 6e ju*ps into his car and speeds to the hospital and ends up injuring +la. Kury will consider whether (elbert acted reasonably when rushing to attend to his injured child EXAMPLE: $f (orkus is driving while distracted and has to veer his car into +o*padors Kaguar in order to avoid hitting a child, he cannot clai* e*ergency because he created the situation c %nalysis of the breach is: 0ailure to act as a reasonably prudent person: !'& !/& !1& EXAMPLE: (unco is a trolley co*pany and decides to build one using uninsulated wires +utnick is walking across the bridge carrying a *etal pole and the pole *akes contact with the wires, shocking hi* Must use above considerations to deter*ine whether standard of care was *et !4& Custo* evidence !a& (eviation favors plaintiff !b& Co*pliance favors defendant EXAMPLE: +laintiff could put on evidence that *ost trolley lines insulate their wires )his is helpful evidence in proving negligence if it is well9established custo* designed to prevent shocks fro* the uninsulated wires / Children a )he reasonable person standard specifically takes account of age when defendant is a *inor b Majority of jurisdictions: !'& 8ubjective: !/& "bjective: c Minority of jurisdictions: ( EXCEPTI'": EXAMPLE: ''9year9old (arla is driving her parents car and collides and injures +ava, when +ava sues (arla, because she was driving a car which is an adult activity and an inherently dangerous activity, (arla does not get the child standard and will be held to the standard of the reasonably prudent person 1 ,tatutory and "e$li$ence Per Se a % statute that provides for civil liability supersedes the co**on law of torts EXAMPLE: $f a state legislature passes a law that says ;anyone who is injured in an auto*obile accident and was not wearing their seatbelt cannot recover in tort,< a plaintiff cannot recover in a negligence action if she was not wearing a seatbelt b Aegligence per se: !'& When deter*ining whether the statute should apply, a judge considers: !a& !b& EXAMPLE: #egislature in the state of +anic passes a law that says ;anyone driving after sundown without headlights is guilty of an infraction punishable by up to a E',FFF fine< )his is a cri*inal law (ana is driving after dusk without headlights and cannot see )rachsel crossing the street and she runs over and injures hi* )rachsel sues (ana in negligence and would prefer that the judge use the statute to set the standard of care because it li*its the jury role !/& $n a *ajority of jurisdictions, this *eans that an une.cused violation conclusively establishes that defendant breached his duty to plaintiff !1& Minority jurisdictions regard a qualifying violation of statute by defendant as either raising a rebuttable presu*ption or as pri*a facie evidence that defendants conduct breached the duty to plaintiff c When the statute does not apply !'& 8tatute will not be used to set the standard of care but the case proceeds under reasonable and prudent person standard of care EXAMPLE: 8tate of Koy passes a statute that requires all railroads to construct secure fences between their property and neighboring property, failure to do so results in a fine up to E',FFF (unn railroad constructs a fli*sy fence between their land and +ierres >ailroad workers *ow the lawn ne.t to the fence, and on the other side of the fence is +ierres cow Cow knocks the fence over and eats herself to death on the cut grass 8tatute is not designed to protect cows fro* overeating and will not apply !/& 8ituations in which the statute standard will not apply: !a& !b& EXAMPLE: (iva injures +avarotti in a collision +avarotti wants to show that (iva was driving with an e.pired license and use the statute as a standard of care Court will require +avarotti to show that (iva was driving unreasonably 4 Professionals a 0or lawyers, doctors, accountants and architects, courts will defer to the profession: b Medical Malpractice: !'& !a& 8pecialists: !b& :eneral practitioners: EXAMPLE: (r (o-e is an anesthesiologist and ad*inisters anesthesia to +edric %fter two hours, +edric gets up and then falls and suffers injury 8ues (r for *edical *alpractice 2vidence shows other anesthesiologists allow patients to rest for four hours, not two hours after anesthesia )his evidence shows deviation fro* custo*, (r will lose $f (r can shows that two hours are custo*ary, +edric loses since (r has co*plied with custo* c #ack of infor*ed consent: !'& !/& )raditionally, doctors *ust divulge those risks that are custo*arily divulged !1& 8tandard of *ateriality: H&P'THETICAL +e.ta decides to let (r (ial perfor* a nose job for cos*etic reasons %lthough (r (ial does nothing wrong in the surgery, +e.ta loses her sense of s*ell as a result of the surgery #osing sense of s*ell is an inherent risk of the surgery +e.ta sues (r (ial for *alpractice, clai*ing that he should have divulged the risk (octors in good standing do not custo*arily divulge this risk, although it is a *aterial risk of nose jobs Was (r (ial obligated to divulge this risk in a professional rule jurisdiction? $n a patient rule jurisdiction? d >ules for *edical *alpractice apply to architects, accountants and lawyers !'& $n order to prevail in a legal *alpractice action, plaintiff *ust show: %. (reach of %uty !"# $$ C& ' +laintiffs burden: / Kust the happening of a bad result doesnt establish any sort of unreasonable conduct on the part of the defendant a $dentify specific alleged unreasonable conduct !'& $f you cannot, there are special hurdles to deal with 1 )wo types of evidence to show breach of duty a (irect evidence: b Circu*stantial evidence: EXAMPLE: 0ather bakes a cherry pie and leaves it in the kitchen to cool %n hour later, a large chunk is *issing 6e sees his daughters )9shirt, lips and teeth covered in red )his is circu*stantial evidence that daughter ate the cherry pie !'& 8lip9and9fall cases !a& 0or plaintiff to recover: EXAMPLE: +ru is shopping at a *arket when she falls on grapes and breaks her leg "nly proof is the injury Ao evidence fro* which the jury can find unreasonable conduct on the part of the *arket $f the grapes are blackened, she will get to the jury because the condition of the grapes are circu*stantial evidence that the grapes were there long enough that the *arket should have discovered the* and re*edied the condition !/& Res ipsa loquitur !;the thing speaks for itself<& !a& !b& +laintiff needs to show: '& /& 1& EXAMPLE: +ar* is watching (unCos livestock auction when a steer falls through the ceiling and into his lap 8ues (unCo for negligence, (unCo says that there is no proof of negligence on their part =nder res ipsa loquitur, jury can infer breach of duty if +ar* can prove his portion !c& 2.clusive control is not required any*ore: EXAMPLE: )ra. goes to B9'' and buys chewing tobacco *anufactured by (ru*7eat When he opens the tin, he finds a deco*posed hu*an toe )ra. sues (ru*7eat for negligence 6e cannot show what (ru*7eat did wrong, but can assert res ipsa loquitur !d& Can be used in the conte.t of *edical *alpractice '& Co**on Gnowledge 2.ception: !e& Multiple defendants: '& /& EXAMPLE: +laintiff goes in for an appendecto*y and co*es out suffering an injury to his right shoulder 8everal people worked on plaintiff while unconscious +robably the result of *edical *alpractice, but couldnt show who or what injured hi* EXAMPLE: +laintiff walking down the street past an apart*ent building and gets hit in the head by a flowerpot 6e cannot sue all 1F tenants of the building because they are not acting as a group !f& Kury can draw an inference of a breach of duty !g& "nly applies in the conte.t of the tort of negligence and only to proving the ele*ent of breach of duty H&P'THETICAL +ashra is injured when a side of beef falls fro* the sky and hits her on the head %ll +ashra can show is that she was walking by (unCos Meat 8torage Warehouse when this occurred Can +ashra *aintain an action against (unCo? E. Cause.in.fact 1Actual Cause2 !"# $$ (& ' EXAMPLE: Kurisdiction has a law that all *otorists *ust honk horns when they are driving on curvy roads to alert onco*ing traffic $f (wee-el is driving in violation of that statute, he would be negligent per se when he collides into and injures 6arve 0acts show that 6arve is driving his brand new car with a state of the art sound syste* and he is playing Metallica as loud as possible 2ven though 6arve *ight be able to establish the duty owed to hi* was breached, he *ight lost his negligence clai* because to establish causation, the general test if ;but for< 7ut for (wee-els failure to honk, *ore likely than not, 6arve would not have been injured $t is likely that 6arve would not have heard the honk anyway Ao causal link a +laintiff only has to show: EXAMPLE: >ochester *i.ed potable water line with sewage line )he line that has the drinking water is called the 6e*lock line, sewage line is called the 6olly line 8tubbs contracts typhoid City says there are /F ways to get typhoid %s long as the plaintiff can show that it is *ore likely than not that the city was responsible, he has established cause in fact $f the jury says there is a B5M chance the City is liable, the plaintiff will still get all of his da*ages / 0our areas where cause9in9fact issues arise a Multiple causes !'& Multiple defendants, defendant and act of nature etc !/& 8ubstantial factor test: EXAMPLE: #andlord failed to provide hot water +laintiff heats water on the stove and carries it to the bath Child runs out and causes hi* to spill it on hi*self 7oth landlord and child would be but9 for causes !a& Must use where: EXAMPLE: %bel negligently sets a fire $t by itself would burn down +arthenons *ansion worth E'M 3ena also sets a fire that would by itself burn down the *ansion )hey co*bine and destroy the house $f +arthenon sues %bel, he cannot show but for his fire, his house would not have been destroyed because 3enas fire would have done the sa*e Must use substantial factor test !b& %ssu*e joint and several liability: '& b #oss of chance !'& )raditional application EXAMPLE: +aulina goes to see (octor (octor co**its *alpractice and fails to diagnose cancer $f (octor had *ade a ti*ely diagnosis, there would have been a 4FM chance that +aulina could survive but by the ti*e it is discovered, it is incurable +aulina sues (octor +aulina will lose because she cannot show *ore likely than not but for (octors *alpractice she would have survived %lready had a ?FM chance of death !/& Many jurisdictions recharacteri-e the injury: !a& c %lternative liability theory !8u**ers v )ice& EXAMPLE: )ice and 8i*onson are hunting when they hear a rattling of the bush )hey both shoot in the direction of the bush and end up shooting 8u**ers "nly one of the two hunters is responsible for the har* but 8u**ers cannot show who it is Cannot use but for or substantial factor test !'& 0actors for application: !a& !b& !c& !/& d Market share liability: !'& !/& Court uses several liability: EXAMPLE: Co*pany % had 'FM of relevant *arket, will pay 'FM of the plaintiffs da*ages unless it can show that it could not have *ade the product that caused the plaintiffs har* +. Pro*imate 1Le$al2 Cause !"# $$ 2& ' =nforeseeable e.tent of har*: a EXAMPLE: (ella is driving negligently and collides with and totals +o*padours Kaguar (efendant says *ost people drive old )oyotas worth E'5,FFF 8he will pay E'5,FFF, not E'FF,FFF suffered )his will not hold b 2ggshell 8kull >ule: EXAMPLE: $f +orter had a predisposition for brittle bone disease and (uane collides with hi* Aor*ally E'FF worth of har*, but +orter suffers E'FF,FFF worth of har* (uane is on the hook for the full e.tent of the injury / =nforeseeable type of har* a =se a rule of foreseeability or the risk rule: EXAMPLE: (o* negligently leaves a jar of rat poison ne.t to the stove with all of the other spices +rissy is using the stove and the heat fro* the stove interacts with the rat poison in a way that the jar heats up and beco*es a *issile 8*ashes into chandelier, breaking it and causing E/F,FFF worth of da*age (o*s lawyer could argue that even though (o* owed a duty to +rissy, and that he acted unreasonably, this is not the foreseeable type of injury )he foreseeable injury would be ingesting the rat poison 1 =nforeseeable *anner of har* a ,u)ersedin$ Cause: b Cul)ability: EXAMPLE: (ora negligently fails to provide adequate locks on the front door of the apart*ent building +av is injured when he is *ugged in the laundry roo* 8ues (ora clai*ing she owed hi* a duty 2ven though there was intervening cri*inal conduct, it will not be superseding because the har* was foreseeable based on the risk of the defendant EXAMPLE: (unCo is a construction co*pany $n violation of statute, they have a worksite that does not have a barricade or flaggers to control traffic in the area +robably negligent per se because +arker, a worker, is injured by a car that ends up on the worksite )he facts show that the car is being driven by 3ena, who is the e.9wife of +arker 8he intentionally runs hi* over )ype of har* you can foresee is a car driving onto the site, injuring the worker (unCo would successfully argue that they were not the pro.i*ate cause because 3ena is a superseding cause EXAMPLE: +arker is taken to the hospital, goes into surgery and because (octor co**its *alpractice, he suffers an e.tra E'FF,FFF worth of har* (octor is liable, both (unCo and 3ena are both causes9in9 fact Will be liable as pro.i*ate cause c 8ubsequent negligent conduct is generally not so unforeseeable that it cuts off liability !'& EXAMPLE: $f (octor decides to intentionally chop of +arkers leg when he is in surgery following the accident, (unCo and 3ena will not be liable )oo freakish, une.pected and bi-arre, and will cut off liability H&P'THETICAL (ana negligently operates her auto and strikes +orter, injuring hi* +orter, whose leg is broken fro* the accident, is taken to a nearby hospital While he is being treated for his broken leg, there is an earthquake that causes the roof to collapse % section of the roof strikes +orter on the head, causing a concussion $s (ana liable for +orters head injury? 0">2822%7#2 =A0">2822%7#2 !$2, 8=+2>82($A:& 2ffect Chain of pro.i*ate causation unbrokenL original defendant re*ains liable Chain of pro.i*ate causation brokenL original defendants liability cut off for consequences of antecedent conduct )ypical 2.a*ples 8ubsequent *edical *alpractice, including aggravation of plaintiffs condition Cri*inal acts and intentional torts or torts of third parties, but only where they are unforeseeable under the facts or circu*stances 8ubsequent disease or accident, including all illnesses and injuries resulting fro* plaintiffs weakened condition, but not deadly, rare diseases 6ighly e.traordinary har* arising fro* defendants conduct, as viewed by the court, including grossly negligent conduct of third parties Aegligent rescue efforts =nforeseeable acts of :od -. %ama$es !"# $$ 0& ' a )here *ust be a cogni-able injury !'& !/& EXAMPLE: Het negligently neuters a dog against the plaintiffs wishes Court will not allow the plaintiff to recover because this is not a cogni-able injury )he plaintiff was not planning to breed or show the dog, so the plaintiff suffered no injury / Co*pensatory da*ages a b )hree rules: !'& !/& !1& c )wo categories !'& 8pecial da*ages: EXAMPLE: $f a four9year9old child is injured in a way that will not allow the* to work ever again, we *ust speculate as to what his lost wages would have been for the rest of his life !a& Collateral 8ource >ule: !/& :eneral da*ages: d %voidable Consequences >ule !to be discussed in *ore detail under ;(efenses<&: 1 +unitive (a*ages a Aever recoverable just for negligent conduct (efendant has to be *ore culpable than negligent !'& b "ften called e.e*plary da*ages !'& c Wealth of defendant is highly relevant !'& !/& BAR EXAM APPLICATION Juestion 1 0rank received a new snow*obile for Christ*as )he first week of Kanuary, a snow stor* drops a foot of new snow in the *ountains 0rank decides to take his new snow*obile out for a spin 6e is *oving *uch too fast when he co*es over a rise and sees another snow*obile directly in front of hi* 6e swerves to avoid the other snow*obile but loses control 6is snow*obile crashes into the other snow*obile 0ortunately, 6ans, the driver of the other snow*obile, is not injured, but his snow*obile has been rendered inoperable 0ranks snow*obile still runs, so he goes for help while 6ans stays behind with his da*aged snow*obile While 6ans waits for 0rank to return, a large branch of a nearby tree snaps under the weight of the heavy, new snow )he branch falls and hits 6ans, causing 6ans to break his collar9bone and left ar* $f 6ans sues 0rank for these injuries, 0ranks best defense would be %& that he was not negligent 7& that 6ans was negligent in standing near a tree with snow9laden branches C& that the falling tree branch was an intervening and superseding force (& that his negligent conduct was not the actual cause of 6anss injuries BAR EXAM APPLICATION Juestion 4 $n order to facilitate street cleaning, the Metropolis city council passed an ordinance barring *otori-ed vehicles fro* driving through the city center fro* 5 a* to ? a* on )uesdays "ne )uesday, the defendant, who is a resident of another city, was speeding through the Metropolis city center at 5:1F a*, when he hit a pedestrian )he defendant did not know about the ordinance )he pedestrian has sued the defendant on a negligence cause of action What is the *ost likely result? %& )he pedestrian will prevail, because the defendant violated the ordinance by driving through the city center at 5:1F a* on a )uesday 7& )he pedestrian will prevail, because the defendant failed to act reasonably under the circu*stances C& )he pedestrian will not prevail, because the defendant did not know about the ordinance (& )he pedestrian will not prevail because the local ordinance will not establish the standard of care H. %efenses to "e$li$ence !"# $$ :& ' Contributory "e$li$ence and Com)arati#e +ault a (efendant has the burden of proof to show that: b )he deter*ination the legal effect of the plaintiffs contributory negligence depends on the jurisdiction !'& !a& =nder contributory negligence: EXAMPLE: $f +erfection was dee*ed 'M at fault and (iablo DDM of fault and +erfection sues (iablo, under contributory negligence, the fact that +erfection was 'M at fault would bar recovery !b& Co*parative fault reduces the plaintiffs recovery '& +ure co*parative fault: EXAMPLE: $f plaintiff is CFM at fault and suffers E'FF,FFF worth of da*ages, plaintiff will recover E/F,FFF fro* negligent defendant /& Modified co*parative fault: EXAMPLE: $f plaintiff is ?FM at fault, they will be barred fro* recovery $f plaintiff is 4FM at fault, the plaintiff would recover ?FM of her da*ages !c& )he last clear chance doctrine is generally going to be the wrong answer c Co*parative 0ault: / Assum)tion of 4is a 2.press assu*ption of the risk arises where: !'& Hoid against public policy when dealing with a necessity H&P'THETICAL %s a condition of entry to ski at (uns 8ki #odge, Mary signs a waiver stating that she will relieve (un of negligence liability Marion (un, in a *o*ent of spite, sprays down a section of snow to *ake it icy while perfor*ing her duties as a slope groo*er, notwithstanding her supervisors repeated warnings to her not to do so Mary slips on the ice and breaks her leg 6as she assu*ed the risk of her injury? b +laintiff *ay also i*pliedly assu*e the risk !'& +laintiff is barred fro* recovery or recovery is reduced under the assu*ption of the risk doctrine if defendant establishes that: !a& !b& !c& EXAMPLE: +lato gets in the car with (ickens (ickens s*ells of alcohol and there is tequila in the car (ickens crashes the car and +lato is injured (ickens can argue that +lato elected to get into a car with a drunk driver and assu*ed the risk c %ssu*ption of the risk is a subjective focus while contributory negligence and co*parative fault is an objective focus EXAMPLE: 7oth (ickens and +lato are into.icated )his would be relevant to +latos assu*ption of the risk )here would be no assu*ption of the risk, but there would be co*parative fault d +rofessional rescuers !0irefighter >ule&: EXAMPLE: (orkus is s*oking in bed and falls asleep and his house catches on fire 0rancine 0irefighter suffers s*oke inhalation when fighting the fire and sues (orkus for negligence =nder the rule, she will not be allowed to recover because she assu*ed the risk since it is part of her job e +ri*ary assu*ption of the risk: EXAMPLE: +a.ton decides to play basketball and gets tripped and injured by (uncan $f +a.ton sues (uncan, under pri*ary assu*ption of the risk, courts would say that an inherent risk is that another player *ight be negligent $n agreeing to play, you have relieved (uncan of the duty to be non9negligent 1 %voidable consequences: a EXAMPLE: (rew negligently injures +olly, causing E'F,FFF worth of da*ages but +olly refuses to seek *edical help and her da*ages go fro* E'F,FFF to E'FF,FFF, (rew can say he does not owe the e.tra EDF,FFF b "ften arises where: BAR EXAM APPLICATION Juestion 5 Crossing a busy street at night, a walker failed to look before crossing and failed to use a clearly *arked crosswalk 5F feet away )he place where the walker crossed should have been brightly lit, but it was dark )he local county, where the walker was crossing, negligently failed to replace a street light despite several notifications fro* local citi-ens While crossing, the walker was struck by a driver, who was e.ceeding the speed li*it )he walker sued the driver and the county in the state of 3, where the accident occurred )he state of 3 has a pure co*parative negligence statute and provides both for joint and several liability of joint tortfeasors and for contribution a*ong joint tortfeasors based upon co*parative fault )he jury has deter*ined that the walker suffered E/FF,FFF in da*ages $t also deter*ined that the walker was 4F percent at fault, the county was 'F percent at fault, and the driver was 5F percent at fault What is the a*ount of da*ages for which the county is liable? %& Aothing, because the walker was *ore negligent than the county 7& E/F,FFF, because the county was 'F percent negligent C& E'/F,FFF, but the county can collect E'FF,FFF fro* the driver if it pays the entire a*ount (& E'/F,FFF, but the county can collect E?F,FFF fro* the driver if it pays the entire a*ount BAR EXAM APPLICATION Juestion ? "ne winter *orning, Kan needed to get to the airport, so she called a cab (ue to the ice on the roads, traffic was terrible With less than an hour before her flight, Kan offered Carl the cab driver an additional E5F if he would ;find so*e way to speed up and get her to the airport< Carl began to weave in and out of traffic Carl lost control of the cab and crashed into another car (an, a pedestrian, saw the accident and atte*pted to help %s (an was atte*pting to help Carl out of the cab, (an slipped and broke his leg (id Carl owe (an a duty of care? %& @es, (an, as a rescuer was owed an independent duty of care 7& @es, because it was foreseeable that (an could be injured C& Ao, because (an assu*ed the risk of injury when he atte*pted the rescue (& Ao, because (ans negligence will bar his clai* III. STRICT LIABILITY A. %efinition !"# $$$ %& (. Cate$ories !"# $$$ 7& ' Possession of animals a Wild %ni*al >ule: EXAMPLE: (a*ian has a pet tiger 6as always been gentle, but +a.ton is visiting and the tiger bites off his hand Ao *atter how unforeseeable, (a*ian is liable b (o*estic +et >ule: / Abnormally dan$erous acti#ities a %n activity is abnor*ally dangerous when: EXAMPLE: 7lasting or dyna*ite, crop dusting, transporting to.ic waste, fu*igating b Plaintiff can reco#er 6hen: !'& Pro*imate cause issue: EXAMPLE: Ae*o is blasting and the noise freaks out the *inks on +ierres *ink far* to the point that the *other *inks start to eat their kittens +ierre is upset and sues Ae*o and says strict liability %lthough Ae*o was blasting, this is dangerous because it causes debris and destruction, not because it causes *inks to eat their kittens Aot abnor*ally dangerous +ierre can only recover upon proof of fault H&P'THETICAL (inah Mite, an e.plosives dealer, accidentally drops a pallet of bo.es containing e.plosives on +atella, breaking her leg and pinning her to the ground %ccident investigators on the scene later that day are injured when one of the destabili-ed e.plosives detonates $s (inah potentially subject to strict liability for +atellas injury? 0or the accident investigators? C. %efenses !"# $$$ C& ' Contributory "e$li$ence a M72 >ule: EXCEPTI'": EXAMPLE: +ar* is driving on the highway and he is listening to the radio when he sees a sign that says ;(anger: 7lastingI)urn off your radio< that (ynaco had posted +ar* did not turn off his radio )here is an e.plosion and he sues (ynaco in strict liability )hey can assert a defense that he knew of the danger $f +ar* were speeding and did not see the sign, he gets full recovery IV. PRODUCTS LIABILITY )his is not the na*e of a tort, but an area of tort liability where the plaintiff is injured due to product related har* #egal theories: negligence, breach of warranty, strict products liability A. ,trict Products Liability in Tort !"# $H %& ' 0ocus is on: / )here are eight ele*ents of strict products liability a Pro)er )laintiff !'& EXAMPLE: %rlene buys a chainsaw *anufactured by (iceCo %rlene lends it to her neighbor 7rian 6e lends it to +lacido +lacido suffers injury due to a defect %s a user, +lacido can sue (iceCo in strict products liability $f his wife is injured as a bystander, she can sue (iceCo as well b Pro)er %efendant !'& !a& )his includes: !b& )his does not include: A")2 EXAMPLE: $f (uncan sells a chainsaw at a garage sale and +lacido is injured, (uncan cannot be sued c Pro)er Conte*t for ,trict Products Liability !'& !/& When there is both a service and a product: EXAMPLE: +rudence goes into defendants beauty salon and wants a per* Halente chooses a per* *anufactured by (unCo and applies it to +rudence +rudence goes bald and sues Halente in strict liability Court says that the product predo*inates and Halente can be a proper defendant in strict products liability (ifferent fro* a dentist using a defective needle to ad*inister Aovocain d %efect !'& %l*ost all jurisdictions i*pose strict liability where a product is ;in a defective condition unreasonably dangerous< !a& 0or*ulations of liability occur under three categories of defects: '& Manufacturin$ %efect a& EXAMPLE: )oe in the chewing tobacco b& +laintiff *ust show that: /& %esi$n defects a& EXAMPLE: 0ord +into (ue to the place*ent of the gas tank, it would e.plode upon *inor collision 0ord designed the car this way, but it was still faulty b& "rdinary Consu*er 2.pectation )est: EXAMPLE: +laintiff is injured when he is at his workplace using safety goggles )he goggles only protect the front, but not the side +laintiff is welding and a piece of *etal flies into his eye 8ues for a design defect, saying that it should have protected the side +laintiff loses under this approach "rdinary consu*er would not e.pect side protection c& >isk9=tility 7alancing )est: i& % products design is usually defective under this test if: EXAMPLE: (eath )rap Motors decides to *arket a car called the 8tallion (esigned to be lightweight and fuel efficient and places the gas tank in a location, encased in light *etal +on buys a 8tallion and is driving when he is rear9ended at 5 *ph 8tallion e.plodes and +on is severely injured +roper defendant, plaintiff, product >isk9utility balancingI*ust show risk of placing gas tank outweighs utility and that there is so*e reasonable alternative design d& 8o*e products are e.e*pt fro* being found defective in design under strict products liability under Co**ent G: EXAMPLE,: Haccines, prescription drugs 1& Absence of !arnin$s a& % plaintiff is asserting either: i& b. b. EXAMPLE: (unCo *anufactures rat poison and it puts on the product a skull and crossbones and it says ;(angerIGeep "ut of >each of Children< Child thinks it is pirate food, eats it and dies Warning could be *ade better ii& b. b. EXAMPLE: >at +robe $nc *akes an ")C weight loss *edication called Weight9"ff +lashawn is shopping at )arget, buys it, uses it and suffers a stroke )here is a risk of stroke in people with high blood pressure who use this product Can sue >at +robe and )arget if he can show that >at +robe knew or should have known that there was this risk e Cause.in.+act !'& f Pro*imate Cause !'& EXAMPLE: Manufacturer *i.es gasoline and kerosene and sells to a phar*acy +har*acy discovers the *i.ture and calls the *anufacturer and alerts the* +ar*ette co*es in and buys the *i.ture 8he is injured and sues the *anufacturer )he phar*acys act is superseding cause !/& #earned $nter*ediary (octrine: g %ama$es !'& May be recovered when: !/& Where the har* is only to the product itself: H&P'THETICAL (unCo sells a defective truck to +aco 7ecause of the defect, one *orning, +aco cannot get the truck to start and thus is unable to *ake his scheduled deliveries, causing hi* to lose E'F,FFF May +aco pursue a strict product liability action? h defenses !'& Misuse !a& EXAMPLE: +arva stands on a chair *anufactured by (unCo to reach a pot in her kitchen )he chair collapses under her While sitting is the intended use of a chair, it is foreseeable that a person would stand on a chair, and thus, there is no *isuse EXAMPLE: +laintiff contracts a rash after Kello wrestling and sues Wrestling in Kello is not the intended use of the product, Misuse, product not defective, no recovery !/& Alteration !a& !1& Assum)tion of the 4is !a& EXAMPLE: (u*ont *anufactures a )H +an is watching )H and it is the final *o*ents of the final episode of %*erican $dol +an sees that the )H is s*oking and sparking, but refuses to turn it off )H e.plodes and burns a carpet and the sofa +an sues, (u*ont can assert assu*ption of risk $f he did not see the s*oke and sparks, no assu*ption of risk (. Product Liability on a "e$li$ence Theory !"# $H 7& ' %ny foreseeable plaintiff is entitled to bring an action / %naly-e the conduct of each defendant and ask whether it was reasonable a (ifferentiate fro* strict products liability, which considers the product rather than the person 1 Res ipsa loquitur takes the place of a *anufacturing defect in negligence theory 4 Aegligence defenses apply C. Products Liability on a !arranty Theory !"# $H C& ' %n e*)ress 6arranty e.ists where: EXAMPLE: %t a garage sale, (u*a tells 3aviera that the knife she is buying is rust9proof $t ends up rusting and her husband is injured 6e can sue (u*a for breach of e.press warranty / %n im)lied 6arranty a Warranty of Merchantability !'& !/& )here are privity and notice require*ents !1& Can be disclai*ed 1 Where the har* is to the product itself, the only clai* a plaintiff can pursue is a clai* for breach of warranty BAR EXAM APPLICATION Juestion B %9"ne 7icycles has been *aking the best bicycles around for three generations Mitchell, the grandson of the founder of %9"ne, takes great pride in the quality of %9"nes bicycles Mitchell personally supervises the asse*bly line eight hours a day to ensure quality, so that he can *aintain his reputation in the industry (espite Mitchells careful inspections, Mitchell is unaware that the bicycle seats that he gets fro* 7ike Co*ponents =nli*ited are having proble*s )hey fall off when anyone over '5F pounds sits on the* %9"ne sells its bicycles through the retailer, 7ike Mart, a*ong others +hister buys an %9"ne bike fro* his local 7ike Mart +hister takes the bike out for a spin, and as he *akes his first turn onto a busy street, the seat falls off +hister falls in front of onco*ing traffic and is severely injured +hister sues 7ike Mart and %9"ne in strict product liability Which of the following is true? %& +hister cannot recover against 7ike Mart, because it sold the bike e.actly as it received it 7& +hister should not prevail against %9"ne, because it e.ercised due care and the faulty bike seat was 7ike Co*ponents fault C& +hister should prevail against %9"ne, regardless of whether %9"ne or 7ike Co*ponents introduced the defect (& +hister should not prevail against 7ike Mart but should prevail against %9"ne, because %9"ne *anufactured the bicycle BAR EXAM APPLICATION Juestion C Marlin owns a ranch on which he takes care of ani*als that have been retired fro* show business >anch residents include a lion, a tiger, and two brown bears Marlin atte*pts to provide the appropriate habitat for each type of ani*al, *uch like a -oo "ne day, to his dis*ay, he discovers that the brown bears have so*ehow *anaged to escape Marlin i**ediately begins telephoning the owners of the properties adjoining his ranch to warn the* about the escaped bears )he first neighbor he calls is +otter, who owns a ranch directly to the west of Marlins +otter keeps bees on his land to produce honey 6is beehives are so*e distance fro* his house but visible fro* his kitchen window While +otter is speaking to Marlin, he chances to look out the window just in ti*e to see two bears flattening his pri-ed beehives %fter a slight pause, he says, ;=h, Marlin, $ know where your bears are< $f +otter sues Marlin for the da*age to his beehives caused by the bears, he will *ost likely %& prevail, but only if +otter did not provoke the bears in any way 7& prevail, if Marlin failed to e.ercise the appropriate standard of care in confining the bears C& prevail under a theory of strict liability (& prevail if he can de*onstrate that he was not negligent in the *aintenance of his beehives V. NUISANCE A. Ty)es of "uisance !"# H %& ' Public "uisance a % public nuisance is: b )ypically brought by a govern*ent actor such as an %ttorney :eneral !'& )o recover da*ages in an individual action for a public nuisance: EXAMPLE: (isney is going to place a billboard on a country street )he sign has bright lights and plays the song ;$ts a 8*all World< over and over Creates a huge traffic proble* )his would be a public nuisance EXAMPLE: +anda runs a nursing ho*e and those who live there cannot sleep due to the constant *usic / Pri#ate "uisance a % private nuisance is: b Mental state: EXAMPLE: (unCo owns a feedlot in the desert that s*ells "n certain days, the wind will blow the s*ell towards a housing co**unity that was constructed nearby +etasha, who lives there, is revolted and asks (unCo to do so*ething about it $f (unCo doesnt shut down the feedlot, they are engaging in intentional conduct c )here are five factors to consider when deter*ining whether a nuisance is a substantial and unreasonable interference !'& !/& !1& !4& !5& EXAMPLE: (unCos feedlot was there first 6ow valued is their activity? Where else can they go, how can they *ini*i-e the har*? 6ow significant is the injury? 1 >e*edies a $njunction !'& )o get an injunction, the plaintiff *ust persuade a judge that: !a& !b& !/& % judge *ust do a balancing of the equities to deter*ine whether the plaintiff is entitled to equitable relief VI. DEFAMATION A. 0or a defa*ation action: !"# H$ %& (. $n analy-ing an action for defa*ation, one *ust check for: !"# H$ %& ' %efamatory messa$e a % *essage is defa*atory if it: EXAMPLE: %ccusing so*eone of a heinous cri*e or of cheating on an e.a* b )he state*ent *ust be one which can be believed to be truthful and reputation9har*ing !'& !/& EXAMPLE: #aw school paper says that the food in the student center has gone fro* bad to worse )his is opinion and cannot be defa*atory $f it says that it believes that week9old vegetables are used in the food, even though it is couched in opinion language, it can be proven true or false c Must be defa*atory in the eyes of a reputable group EXAMPLE: $f the Aa-i party paper publishes an article that says +russia thinks that 6itler was a horrible person and +russia is a proud neo9Aa-i, the court will not uphold this as defa*ation / Pleadin$ )roblems a Where the plaintiff is not na*ed, they *ust allege that it is of or concerning her EXAMPLE: #aw school paper publishes an article saying that the fe*ale torts professor has been arrested for bank robbery +rofessor +adding can sue that it is of and concerning her because she is the only fe*ale torts professor and people will associate her with the state*ent b % large group cannot be defa*ed EXAMPLE: %rticle is published saying that todays lawyers are unethical, greedy swine, there can be no defa*ation clai* !'& $n a s*all group, every *e*ber can bring a clai* EXAMPLE: $f an article says that one of the surviving 7eatles has been arrested for dealing crack cocaine, +aul and >ingo can both bring an action for defa*ation c 8o*e state*ents *ay not be defa*atory on its face EXAMPLE: %c*e #aw 8chool dean is *arrying Kane (oe )his is not defa*atory on its face, but other facts *ay *ake it so, such as the dean already being *arried 1 Publication a +ublication *eans: b +laintiff *ust show: H&P'THETICAL (ina sends a sealed letter to +aykta, accusing her of plotting a *urder )he letter is opened by +ayktas new, very nosy roo**ate )he following week, (ina sends a postcard to +aykta containing the sa*e accusation Will +aykta be successful in a defa*ation action for the letter? for the postcard? c >epublication >ule: 4 Ty)e of defamation and dama$es a Libel definition: !'& >eputational har* is presu*ed and da*ages do not have to be proved b ,lander definition: !'& 0or plaintiffs to recover for defa*ation: !a& E*ce)tions are called slander per se: '& /& 1& 4& 5 Common la6 Pri#ile$es a Truth !'& 6istorically: !/& )oday: b Absolute Pri#ile$e !'& !/& Conte.ts in which absolute privilege applies: !a& !b& !c& !d& EXAMPLE: Congress*an (oofus stands up on the floor of the legislature and says ;people, like *y opponent in *y last race, who are child *olesters should be in jail< %bsolute privilege applies, no liability EXAMPLE: "n cross9e.a*ination of a witness, attorney asks the witness if they are still a *e*ber of the Aa-i party %bsolute privilege applies, no liability !1& +rivilege ends if so*eone repeats the defa*atory state*ent in a non9privileged situation c 7ualified Pri#ile$e !'& (efendant loses an otherwise available qualified privilege if: !a& !b& !c& !/& :ives greater leeway to speech, but qualified because they can be lost EXAMPLE: $f 3 gets a call about a job reference for student %, but 3 gives a horrible reco**endation because he is thinking of student 7 % sues 3 for defa*ation Jualified privilege applies because the infor*ation is of interest to a third person, but the privilege is lost if 3 is negligent or reckless as to the truth of the infor*ation or if the infor*ation is published ? Constitutional Issues a +rior to 'D?4, there was no 0irst %*end*ent issue defa*ation and defa*ation was a strict liability tort b 8ince A@ )i*es v 8ullivan, four questions are considered: !'& !/& !1& !4& c +ublic official: H&P'THETICAL )he (aily falsely states in an article that Mayor +acher has been e*be--ling funds )hey based this on a source they had used before, who had proved to be reliable Will +acher be able to recover for defa*ation? d +ublic figure: !'& %ll purpose public figures: !/& #i*ited public figures: e +rivate figure: !'& +ublic concern: !a& +resu*ed or punitive da*ages: !/& +rivate concern: VII. INVASION OF PRIVACY A. Intrusion into ,eclusion !"# H$$ %& ' a (oes not require any publication of infor*ation b $nvasion *ust be done in a way that is: EXAMPLE: 2avesdropping, wiretapping, stalking 8o*ething visible in public is not a ground for intrusion / (a*ages recoverable for invasion of seclusion include: (. Commercial A))ro)riation of Identity or Lieness !"# H$$ 7& ' a )he wrongful use of plaintiffs identity or likeness *ust be used: EXAMPLE: (uncan is the editor of 8ports )oday *aga-ine Wants to publish an article about baseball star +aco and sends a writer to interview hi* )akes a picture in which +aco is holding a can of (rek soda (rek uses the picture to start an ad ca*paign +aco sues 8ports )oday and (rek +aco will lose against 8ports )oday but will win his suit against (rek C. Public %isclosure of Pri#ate True +acts !"# H$$ C& ' +laintiff *ust prove four ele*ents: a b c d / #ook for the passage of ti*e 1 Aeed so*e sort of publication or disse*ination of infor*ation 4 $njunction *ight be possible since the infor*ation is truthful a Aot granted to enjoin defa*atory speech since it is false 5 Constitutional issues: a H&P'THETICAL +aul, a highly respected Washington lawyer, is 6$H9positive "nly a few fa*ily *e*bers know of his condition $n an effort to bring 6$H9positive individuals to the publics attention, his brother sends an e9*ail to all of +auls colleagues revealing his 6$H status (oes +aul have a cause of action against his brother? %. Portrayal in a +alse Li$ht !"# H$$ (& ' EXAMPLE: 8tating falsely that so*eone has cancer or is poor / +laintiff has to show: a b c d !'& +arallel to defa*ation rules BAR EXAM APPLICATION Juestion D :erry and Marcia were both trial attorneys, speciali-ing in cri*inal defense 7oth :erry and Marcia attended the annual conference of the countrys largest association of cri*inal defense attorneys )he conference is held at different sites each year, and attorneys gather to discuss the latest develop*ents in cri*inal law %lthough :erry and Marcia have never *et, they are fa*iliar with one another professionally %t a reception held during the conference, :erry approached Marcia :erry said, ;Marcia, $ve ad*ired your work for so*e ti*e $* opening an office in your state +erhaps we could pool our resources and beco*e the *ost powerful attorneys in the state< Marcia replied, ;$ will never work with you @oure an unethical low9life< 8everal other lawyers who happened to be nearby overheard Marcias reply Will :erry succeed in a defa*ation suit against Marcia? %& Ao, because there was no publication 7& Ao, because only Marcia and :erry were parties to the conversation C& @es, if Marcia knew the co**ent would be overheard (& @es, if it was reasonably foreseeable that the co**ent would be overheard by so*eone BAR EXAM APPLICATION Juestion 'F )he :otha* (aily )attler, a tabloid newspaper, reported that (aniel Meld, a billionaire real estate developer and casino *ogul who was considering running for +resident, had recently been treated for chronic alcoholis* in an inpatient clinic affiliated with :otha*s largest hospital $n fact, Meld had undergone a series of cos*etic procedures in order to enhance his chances of winning his partys no*ination and, ulti*ately, the presidency )wo days after the story broke, 8enator Kohn 7lutarsky, the highest ranking elected official in Melds party, while engaged in a filibuster began reading the lead stories fro* newspapers all across the nation, including the Meld article fro* the )attler 7lutarsky is an outspoken supporter of Melds *ain rival for the partys no*ination What is the likely result if Meld sues 7lutarsky for defa*ation? %& 7lutarsky will win, if he reasonably relied on the newspaper article 7& 7lutarsky will win, because he was privileged to *ake the state*ents C& Meld will win, if can prove actual *alice (& Meld will win, because the state*ent was slander per se VIII. WRONGFUL INSTITUTION OF LEGAL PROCEEDINGS A. Malicious Prosecution !"# H$$$ %& ' Malicious prosecution arises when: EXAMPLE: (ilbert is angry with e.9girlfriend +etunia 6e reads about a bank robbery, calls the police and tells the* that +etunia did it $f she is tried and acquitted, she can bring an action against (ilbert for *alicious prosecution (. !ron$ful Institution of Ci#il Proceedin$s !"# H$$$ 7& ' C. Abuse of Process !"# H$$$ C& ' %buse of process e.ists where: EXAMPLE: (i* attaches a piece of real property that belongs to +ushta Clai*s he does it in order to preserve it in order to pay off a judg*ent )he real reason he does it is that he knows so*eone else wants to buy it, so he wants to pull it off the *arket IX. ECONOMIC TORTS A. Intentional Misre)resentation 1+raud2 !"# $3 %& ' +laintiff *ust prove four ele*ents: a b c d / :enerally an affir*ative assertion of fact or an act of conceal*ent a 0ailure to disclose infor*ation is not a basis unless: !'& !/& !1& !4& !5& 1 Mental state: a b 8cienter is present when: EXAMPLE: (inah tells +orter that the corn that she is selling hi* is :rade % when it is :rade 7 +orter sues for fraud Clearly she intended hi* to rely, but if (inah accidentally looked at the wrong invoice, he would lose his fraud clai* because there is no scienter 8he *ight be negligent (. "e$li$ent Misre)resentation !"# $3 7& ' :eneral rule: EXAMPLE: (unCo deals with dangerous che*icals and starts a che*ical fire )o prevent har* to businesses in the area, they notify plaintiff to evacuate +laintiff loses E'M in business because they had to be shut down +laintiff sues (unCo and loses $f the fire had da*aged plaintiffs building, then they would be entitled to recover for econo*ic losses that flow fro* that % EXCEPTI'": EXAMPLE: % lawyer prepares a contract for a client and drafts it negligently so that the client loses E'M and the client sues for *alpractice, the lawyer cannot avoid liability because it is purely an econo*ic loss )here is a fiduciary duty %ccounting fir* does its job negligently and *isstates the value of the co*pany that hires the accounting fir* $f the hiring co*pany suffers har* as a result, they can recover / Who beyond a party who is in privity of contract can recover? a EXAMPLE: $f 3ero. hires (eloitte to do an audit because 3ero. wants to get a E'FM loan to fund a new product line (eloitte is negligent and overstates the value of 3ero. 0irst Aational 7ank, who lends 3ero. E'FM, wants to sue (eloitte when 3ero. goes bankrupt 7ecause (eloitte knew they were auditing to benefit the banks in town and they could see the reliance, a duty is owed b $n the conte.t of lawyer/client relationships: C. Interference 6ith Contractual 4elations !"# $3 C& ' )wo ele*ents: a b EXAMPLE: (inCo approaches 3avier Co and says that they want a kind of widget )hey knew that 3avier has a contract with +ortie Co to sell all of their widgets (inCo says they will pay 3avier 1 ti*es the a*ount +ortie is paying and 3avier agrees +ortie will win if they sue (inCo %. Interference 6ith Pros)ecti#e Economic Ad#anta$e !"# $3 (& ' )his tort protects the probable ;e.pectancy< interests of future contractual relations of a party / +laintiff can prevail only by showing that the defendant: a b H&P'THETICAL (eena really wants to get a job as an associate at a large Washington law fir* 0ro* a friend of hers at the fir*, (eena learns that her *ain co*petitor for the job is +aul Concerned that +aul will beat her out for the job, (eena starts a ru*or that +aul is unreliable and lied about being ad*itted to the bar +aul does not get the job Will he have a cause of action against (eena for interference with prospective advantage? E. In3urious +alsehood 1Trade %is)ara$ement2 !"# $3 2& ' +laintiff *ust prove: a b c d EXAMPLE: "wner of Music Co*pany, "wen, is approached by Connie who asks if they have the 7arry Manilow/#ady :aga duets "wen says no and Connie asks if +arker >ecords does "wen knows that they do, but does not want to give the* business and says no $f +arker finds out, they could recover for injurious falsehood X. MISCELLANEOUS TORT CONCEPTS A. Vicarious Liability !"# 3 %& ' Em)loyer8Em)loyee 1Respondeat Superior2 a EXAMPLE: Hinny is driving a van for (o*inos (rives negligently and collides with +alethia Hinny is negligent in scope of e*ploy*ent and +alethia can sue (o*inos 7y virtue of being an e*ployer, they are vicariously liable b 2*ployers can seek inde*nity fro* e*ployee but rarely do so c 2*ployers can be directly liable if they are negligent in hiring EXAMPLE: $f (o*inos hired Hinny when they knew that he was a bad driver or failed to do adequate background checks, they will be directly liable d $ntentional torts co**itted by an e*ployee: !'& EXCEPTI'": EXAMPLE: 7ouncer at a bar co**its a battery when ejecting an unruly patron 7ar owner could be vicariously liable even though it was an intentional tort / Inde)endent Contractor a b Whether a person is an independent contractor rather than an e*ployee depends on: 1 Parent8Child a (. Abatement8,ur#i#al of Action and !ron$ful %eath !"# 3 C& ' Co**on law: a / 8urvival 8tatutes: a 1 Wrongful (eath 8tatutes: a 4 #oss of Consortiu*: a EXAMPLE: (eirdre is driving negligently and she hits and severely injures +oinde.ter 6e is in great pain, is in the hospital for si. *onths and then dies fro* the injuries 6e has a wife and *inor child "nce +oinde.ter has died, the estate can continue his clai* through a survival statute 6is wife can bring an action for loss of consortiu* for the si. *onths he was in the hospital "nce he dies, his wife and child can both bring a clai* for wrongful death, suing for own injuries suffered
December 14, 2012, FM/27/12 Legal Brief Dated in response to Motion filed by 501376, a body corporate. FM/27/12 Charter Challenge - Charter Application – Andre Murray v. ROYAL BANK OF CANADA, 501376 N.B. Ltd., a body corporate, Province of New Brunswick, Canada.