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TORTS INTENTIONAL TORTS: Specific intent: Defendant intends the consequence of his act.

General intent: Defendant knows or believes to a substantial certainty that his conduct will cause the consequences. Transferred intent: Defendant intended different tortious, or intended tortuous conduct against a different party. Only applies to: Battery, Assault, False Imprisonment, Trespass to Land, Trespass to Chattels Minors and incompetent persons: Minors and incompetent persons are liable even if they do not know their conduct is wrong or foreseeable. Hypersensitivities: Generally hypersensitivities are not taken into account UNLESS defendant knows of the hypersensitivity. Battery 1. Volitional act 2. Intent to cause harmful or offensive contact. 3. Causation 4. Actual harmful or offensive contact results. Physical contact with plaintiff, or anything closely connected with person (purse, pet, car, etc.) Harmful: Any physical impairment. Offensive : Offends a reasonable persons sense of personal dignity, unwarranted by social usages prevalent at the time and place Assault 1. Volitional act 2. Intent to cause apprehension of imminent harmful or offensive contact. 3. Causation 4. Actual apprehension of harmful or offensive contact results. So, unlike for battery, the person must be aware of the assault. Future threats: Future threats usually lack imminency. Conditional threat: A conditional threat may be an assault. Words: Words alone are generally not enough unless accompanied by some overt act. False Imprisonment 1. Volitional act 2. Intent to confine within boundaries. 3. Actual confinement results. Actual confinement may include physical force, threats of force, barriers which restrain freedom of movement, or failure to provide means of escape (when there is an affirmative duty) EXAMPLE: A steals all of Bs clothes. She cannot escape, false imprisonment. EXAMPLE: Cop makes unlawful warrantless arrest, false i misonment. EXAMPLE: Threats may constitute a barrier. 4. Awareness of confinement OR Harm from confinement EXCEPTION: Children/mentally incompetent: If defendant confines a child or mentally incompetent person, he may be liable even if that person is not aware of the confinement. Shopkeepers privilege: A shopkeeper will not be liable for false imprisonment if: (1) There are reasonable grounds to believe a theft has occurred; (2) Detention is reasonable; (3) Detention is for reasonable time. Intentional Infliction of Emotional Distress: Plaintiff may recover for the emotional distress and injuries that result from the emotional distress. 1. Extreme and outrageous conduct: Conduct that exceeds all bounds of decency tolerated in a civilized society. (More than mere insults. Look for repetition, etc.) Fragile class: If plaintiff is in a fragile class, (children, elderly, pregnant women, racial comments, etc.), and defendant knows, the outrageous requirement is lessened. Transportation/hotel employees conduct: More likely to be outrageous. 2. Intent to cause severe emotional distress OR Recklessness. 3. Severe emotional distress results. Third party recovery: Defendant may be liable for emotional distress to third parties if: (1) Close family member; (2) Present; AND (3) Defendant knows of presence. Negligent Infliction of Emotional Distress: Generally negligence is insufficient to recover for emotional distress (though emotional distress damages will be allowed as part of physical injury claims) Exceptions: Negligent transmission of a message: If a hospital negligently misinforms a plaintiff that a family member has died, recovery may be allowed. Negligent mishandling of corpses: Negligent mishandling of corpses may give rise to liability. Zone of danger AND physical manifestation of distress: Must be in zone of danger AND have some physical injury from the distress. Physical injury: A party may recover for negligent infliction of emotional distress if defendants conduct caused some ph ysical injury. Trespass to Land: NOTE: Think also about Nuisance! 1. Volitional act 2. Intent to enter land (even if by mistake. Intent means intent to enter the land.) Negligent or reckless entries: A person who negligently or recklessly enters land of another is liable for trespass only if he harms the land. 3. Actual entry into land of another results OR Remaining on land of another OR Failure to remove something from the land Causing an item to enter land of another: Sufficient for trespass to land Particulate matter: Modernly there may be liability for intrusions of microscopic particles where harm is caused. Light/sound/smell: Maybe a nuisance, but NOT a trespass. Airspace/subterrain: Plaintiff owns soil below and airspace above within immediate reach of his land. Nuisance: See below. Trespass to Chattels 1. Volitional act 2. Intent to intermeddle with (use, take) chattel of another. Mistake of right is not a defense to trespass to chattels. EXAMPLE: A reasonably believed she could use Bs bag. Not a defense. 3. Dispossession/intermeddling results. 4. Damages: Must be damages (either (1) Harm; or (2) Dispossession). Conversion: Trespass to chattels so serious that it warrants a forced sale. Damages are measured by full value of the chattel at time of conversion. Alternatively, plaintiff could sue for replevin. Factors to consider: (1) Extent and duration of defendants dominion; (2) Extent and duration of interference; (3) Harm to chattel; (4) Intent to steal (5) Good faith DEFENSES TO INTENTIONAL TORTS Consent: Consent NOT VALID if: (1) Incapacity to consent; (2) Consent derived from duress/fraud; (3) Consent is exceeded; (4) Illegality (statutory rape, etc.) Express consent: Plaintiff gives consent. EXAMPLE: A agrees to have sex with B. B does not tell A he has a sexually transmitted disease. There is a battery, the consent is not valid because derived through fraud. Implied consent: Consent is implied by law or implied by actions. Look at objectively reasonable belief of defendant not subjective belief of plaintiff. EXAMPLE: A is unconscious, doctor performs surgery. Implied consent. EXAMPLE: A tackles B in football game. Implied consent. EXAMPLE: A is shoved in a subway. Implied consent. Necessity: A person may invade the property of another (applies to Trespass to Land AND Trespass to Chattels) if: Public necessity: Reasonably appears necessary to avert a public disaster. Defendant not liable for the trespass OR damage to property or chattel. This is a complete defense. Private necessity: Reasonably appears necessary to avoid harm to self/own property. Defendant will not be liable for trespass, but WILL BE liable for damage to property or chattel. This is a limited defense. Right of sanctuary: So long as the privilege continues, the plaintiff may not eject the defendant. If he does, he will be liable for property damages/personal injury that result. Self Defense/Defense of Others: Anyone is privileged to use reasonable force to defend himself or someone else against an imminent threatened (or reasonable belief) battery. Mistakes: Reasonable mistakes are permitted when defending oneself or somebody else. EXAMPLE: A defends against B and hits C, no liability. Defense of property: Actor may use reasonable force to prevent or terminate anothers intrusion to property. Deadly force: May NOT use deadly force unless a threat to the actors own safety justifies it. Recapture of real property: No physical force can be used. However, may forcibly enter her land (cut down fence, etc.) Recapture of chattels: Actor may use reasonable force in hot pursuit to recapture chattels if chattel was taken tortiously. However, where original taking was rightful (valet parking, etc.), may not use force. Discipline: Parents can be privileged to discipline their children. Parents may extend that privilege to others (babysitters, schools, etc.) Arrest: An officer or private citizen may make arrest for felony or breach of peace committed. Citizens arrest : Citizen may use force to arrest for a misdemeanor breach of peace committed in his presence. He may also use force if a felony has been committed, but felony must have actually been committed may not make mistake. Reasonable mistake of identity allowed, NUISANCE Public nuisance: Unreasonable interference with a right common to general public (health, safety, peace, comfort, convenience, etc.). May bring suit only if: 1. Special injury: The individual must have suffered harm different from that suffered by other members of the public; OR 2. Public official: Public officials can bring a suit to abate a public nuisance Private nuisance: Unreasonable and substantial interference with use and enjoyment of land. Offensive, inconvenient, or annoying to average person in community. Substantial: Offensive, inconvenient, or annoying to average person in community. Abnormally sensitive uses: Interference only with a neighbors abnormally sensitive use will not be substantial to average person. Unreasonable: Harm to plaintiff is greater than utility of defendants conduct; OR, if there is high utility, we could compensate plaintiff without discontinuing defendants conduct EXAMPLE: A has hypersensitivity to activity otherwise reasonable. Not a nuisance. EXAMPLE: Fears and feelings of members of community may be taken into account even if scientifically baseless. DEFENSES TO NUISANCE Coming to the nuisance: If the nuisance was there before you got there, that will not bar the action, but it will be an important factor to be considered. Compliance with a statute: If the conduct is in compliance with regulations (zoning, pollution control, etc.), that may not bar the action, but it will be an important factor to be considered. Contributory negligence: Negligent nuisance: If nuisance is negligent, contributory negligence will be a defense. Intentional nuisance: If nuisance is intentional, it will not be a defense. Voluntary assumption of a known risk: A plaintiff cannot recover in a negligence action if he (1) Has knowledge of the risk; and (2) Voluntarily assumed the risk REMEDIES TO NUISANCE CLAIMS Damages: Injunction: An injunction may be awarded if 1. Inadequacy of legal remedies: An injunction will only be awarded if legal damages are inadequate (continued wrong, nuisance will cause irreparable harm, etc.) 2. Balance equities: Court must balance hardship 3. Public interest: Consider any public intersts Abatement by self-help: Plaintiff may enter upon defendants land and personally abate nuisance after notice has been given and defendant has refused to act. This may include reasonable destruction of property. Necessity.

NEGLIGENCE: To prove negligence plaintiff must show: (1) Duty; (2) Breach; (3) Actual cause; (4) Proximate cause; and (5) Damages. Negligence: Plaintiff must show the following by preponderance of the evidence 1. Duty: Average reasonable person: The general duty is to exercise care of a reasonable person in same or similar circumstances. This includes complying with statutes. Foreseeable plaintiffs: Defendant only owes duty to foreseeable plaintiffs. MAJORITY (Cardozo): Those in zone of danger are foreseeable. MINORITY (Andrews): Duty to whole world. Rescuer doctrine: Rescuers are foreseeable pliantiffs. They may sue if injured while attempting to rescue. EXAMPLE: D knocked out P with a bat. R negligently performed CPR on B and broke Bs ribs and Rs wrists. A is liable for all injuries, including Bs broken ribs and Rs broken wrists. Firefighters/police: Defendant is NOT liable for injuries resulting from the risks inherent in their job. They assume the risk in their jobs. Unborn fetus: An unborn fetus is a foreseeable plaintiff. 3rd party beneficiaries: 3rd party beneficiaries are foreseeable plaintiffs for economic harm Standard of care: The general duty is to exercise care of a reasonable person in same or similar circumstances. Below are some variations: Professionals/special skills and knowledge: If an individual has special skills and knowledge, he will be held to average person in that group with same special skills and knowledge in that community. Medical professionals: Duty to disclose risks that a reasonable person would want to know. Emergencies: Must act as reasonable person in similar emergency. Children: Must act as reasonable person of like age, intelligence, and experience. EXCEPTION: If child is engaging in adult activities (driving car, boat, etc.), he will be held to adult standard of care. Mentally deficiency: IQ is irrelevant. Will be held to standard of reasonable person. Physical disability: Must act as reasonable person under like disability. Automobile drivers: Generally must act as reasonable person. EXCEPTION: Guest statutes impose a lessened dutyrefrain from gross, wanton, or willful misconduct. Land possessors duty to trespassers, licensees, and invitees: Trespasser (enters without permission/privilege): Unknown trespassers: No duty of care. Known (or anticipated) trespassers: (1) Duty to warn of known, hidden, artificial, extreme dangers; (2) Duty to conduct activities with reasonable care Attractive nuisance doctrine: Landowner may be liable if: (1) If artificial dangerous condition exists that presents attraction to children, (2) The risk outweighs cost of eliminating danger; and (3) That particular child is unable to appreciate the risk (if that child appreciates the risk, this does not apply). Licensee (enters with consent, not inviteesocial guests, etc.): (1) Duty to warn of known, hidden, dangers; (2) Duty to conduct activities with reasonable care Invitee (person entering for possessors business, such as customers in store. May be Public invitee, such as people in park, etc.): Duty to exercise reasonable care, inspect, and keep safe Landlords duty: Generally no liability except: (1) Warn tenant of known hidden defects; (2) Common areas; (3) Assumption of repairs; (4) Short term lease of furnished dwelling; (5) Public space Statutory standard of care: Statues may set the standard of care. Criminal statutes: May use criminal statutes to show standard of care only if: (1) Plaintiff was member of class statute was designed to protect; (2) Harm was type of harm statute was designed to protect Omissions: Generally there is no duty to act to protect others. Below are exceptions: 1. Defendant caused harm: One who caused harm, whether innocently or tortiously, has a duty to prevent further harm. 2. Assumption of duty: One who begins to act is placed under a duty to act reasonably (cannot be negligent), and to continue to act if his actions have left the person in a worse position Good Samaritan Statutes: Good Samaritan statues may exempt volunteer rescuers from negligence (but not gross negligence) 3. Close relationships: People with close relationships have a duty to act to aid each other 4. Duty to control others: Generally no duty to control others unless: (1) Special relationship: Parent/child; Master/Servant (employee); Teacher/student, etc.; AND (2) Knowledge of propensity 5. Common carriers/Inkeepers: Common carriers such as bus drivers, etc., have a duty to help passengers. Innkeepers owe a duty to their guests. 6. Landowners: Landowners have a duty to rescue invitees 7. Custody keepers: People who take others into custody voluntarily or as required by law, depriving that person of ability to protect himself, have a duty to those people. Lessors duty to lessee: Lessor generally has no duty for harm caused by property leased by lessee unless: (1) Failure to warn; (2) Negligent repair 2. Breach: Plaintiff must show defendant breached the duty. Proof of negligence: Plaintiff may show breach by identifying the defendants faulty conduct. NOTE: The length of the breach analysis will be inversely proportional to the length of the duty analysis. Circumstantial evidence of negligence: Res Ispa Loquitur (The thing speaks for itself.): If plaintiff cannot show exactly what happened, court may infer negligence if plaintiff can show: 1. Probably negligence: This type of accident usually does not occur absent negligence 2. Probably the defendant: Must show that the defendant was in control of the instrumentality that caused the injury. Violation of statute: Violation of a statue is evidence of negligence. Moreover, if statute defines the conduct of a reasonable person, and the defendant does not comply with the statute, it is Negligence Per Se. Violation of criminal statutes: May be used to show breach if plaintiff can show: (1) He was member of class statute was designed to protect; (2) He suffered type of harm statute was designed to protect 3. Factual cause: Plaintiff must show that defendants conduct was a cause in fact. Single defendant: But for test: These damages would not have happened but for defendants conduct . Multiple defendants, mingled causes: Substantial factor test: If multiple defendants caused an injury, and either alone would have caused it, they will still be liable if conduct is a substantial factor in the injury. Multiple defendants, alternative causes: When an injury is caused by negligence of multiple persons and plaintiff cannot determine who caused harm, burden of proof shifts to defendants. 4. Proximate Cause: Foreseeable harm: Defendant will only be liable for those consequences which were reasonably foreseeable consequences of defendants negligence. Well-settled areas where there is proximate cause: Subsequent medical malpractice: The defendant will be liable for negligent (not reckless or wanton) medical malpractice. (Doctor will also be liable, but defendant will not be relieved of liability). Subsequent negligent rescuer: The defendant will be liable for negligent (but not reckless or wanton) rescue. (Rescuer will also be liable, but defendant is not relieved of liability). Subsequent accident/disease: Defendant will be liable for diseases/injuries resulting from original injury Eggshell plaintiff rule: A defendant is liable for full consequences of plaintiffs injuries even though this particular plaintiff was more suscepti ble to harm than others would have been. Superseding cause: Defendant will not be liable for damages that result from an unforese eable intervening cause that breaks the causational chain between defendants actions and the harm. Acts of God: Unforeseeable results from acts of God, such as earthquakes, etc., may be superseding causes. Criminal acts/intentional tortious acts/extraordinary negligent acts of others: Unforeseeable results from malicious acts of others may be superseding causes 5. Damages: Must prove actual damages. May include property damages, general (not easily quantifiable)/special (out of pocket) damages, past/future pain and suffering, medical expenses, lost wages, loss of consortium (services, support, sex), but NOT attorneys fees or punitive damages unless wanton and willful. . Avoidable consequences doctrine: Plaintiff has a duty to use reasonable efforts to avoid damages. Collateral source doctrine: Payments made to injured party by third party are not credited to defendant (except for defendants insurance). Includes insurance, gifts from others, employment benefits, etc. NEGLIGENCE DEFENSES Contributory negligence: Negligent plaintiff is barred from recovery (even if only 1% negligent). Same rules. (duty, breach, etc.). EXAMPLE: D negligently maintained highway. A injured. If at all negligent, barred. Last clear chance doctrine: Plaintiff will not be barred by contributory negligence if defendant was the last person that could have avoided the incident (plaintiff is helpless or inattentive) Comparative negligence: Where comparative negligence has been enacted, plaintiffs recovery may be reduced by his percentage of negligence. Pure comparative negligence (CA) (DEFAULT): Plaintiff may recover even where his negligence exceeds that of defendant. EXAMPLE: A plaintiff who is 90% negligent will recover 10% of his damages. Modified comparative negligence: Plaintiff may recover only if his negligence is not greater than that of defendant. EXAMPLE: A plaintiff who is 90% negligent will recover nothing. Voluntary assumption of the risk: A plaintiff cannot recover in a negligence action if he (1) Has knowledge of the risk; and (2) Voluntarily assumed the risk. Public policy exception: In some instances, public policy will prevent this defense. EXAMPLE: Law prevents selling glue to minors. A sold glue to a 15 year old who sniffed, knowing the risks. No defense.

STRICT LIABITY Abnormally dangerous activities: Defendant doing abnormally dangerous activity is subject to strict liability for harm resulting from it. 1. Ultrahazardous activity: (1) Risk of serious harm; (2) Inability to eliminate risk with reasonable care; (3) Not a matter of common usage in the community Explosives: Ultrahazardous. Storing/transporting hazardous substances: Ultrahazardous. 2. Causation: 3. Damages: NOTE: Liability only for type of harm that makes activity abnormally dangerous. Animals: Wild animals (innate vicious propensities): Owner is strictly liable for harm caused by the animal. NOTE: Liability only for type of harm that makes animal dangerous. This may include injuries arising from attempts to flee from what is perceived to be a dangerous animal. NOTE: Generally no liability to trespassers Domestic animals: No strict liability unless owner knew or had reason to know of animals dangerous propensities. One free bite (Modernly, other things can demonstrate dangerous propensities) NOTE: Even trespassers may recover under strict liability for injuries from vicious watchdogs. Cattle: Strict liability for trespassing cattle. STRICT LIABITY DEFENSES Contributory negligence: NOT a defense. Comparative negligence: May be a defensebut in the case of products liability, comparative negligence not a defense for foreseeable misuse. Voluntary assumption of the risk: A plaintiff cannot recover in a negligence action if he (1) Has knowledge of the risk; and (2) Voluntarily assumed the risk. PRODUCTS LIABILITY Strict products liability: Strict liability for sale of any product in defective condition unreasonably dangerous. NOTE: No contractual privity required. Plaintiffs may be purchasers OR foreseeable users (not theives) 1. Product is defective and unreasonably dangerous. NOTE: Unavoidably unsafe products, such as knives and certain drugs, are not unreasonably dangerous. Manufacturing defect: Product departed from intended design. Design defect: Risk could have been avoided by adoption of a reasonably alternative design Warning defect: Risk could have been avoided through adequate warnings. 2. Product is expected to (and does) reach consumer without substantial change 3. Defendant is a merchant (engaged in business of selling product): Includes suppliers at all levels of distribution chain: manufacturers, distributor, retailer, lessors, new home developers, etc. Seller of used goods: May be strictly liable. Casual sellers: NOT strictly liable, though may be sued under other theories. Supplier of professional services: NOT strictly liable, though may be sued under other theories. EXAMPLE: Doctors selling pacemaker, mechanic installing part, optometrist selling glasses, etc. 4. Causation 5. Damages: Must prove injury to either person or property. Mere economic harm not sufficient. NOTE: A non-manufacturer may seek indemnification from the manufacturer. Defenses Voluntary assumption of a known risk: Defense. Contributory negligence: NOT a defense Comparative negligence: May be a defense. Misuse: NOT a defense if misuse is foreseeable. Failure to inspect: NOT a defense. Negligent products liability: There may be a products liability claim under negligence. Warranty products liability: Express warranty: Seller will be strictly liable for breach of an express warranty if: 1. Express warranty: Seller makes express warranty (affirmation of fact or promisemore than mere puffery); 2. Basis of the bargain: Sellers warranty is basis of the warranty 3. Breach: Breach of the warranty 4. Privity: Privity requirements vary by jurisdiction, ranging from immediate family to all foreseeable plaintiffs. Implied warranty of fitness for a particular purpose: Seller is liable for a good found unfit for their intended purpose if: 1. Seller knows of particular purpose for which goods are required 2. Buyer relies on sellers skill and judgment 3. Product unfit for particular purpose 4. Privity: Buyer, family, household, and guests Implied warranty of merchantability: Seller warrants that the good is generally acceptable and fit for ordinary purposes. He is liable if: 1. Product is unfit for ordinary purposes 2. Privity: Buyer, family, household, and guests Misrepresentation: There may be products liability under the theory of misrepresentation. MISREPRESENTATION Intentional misrepresentation (Fraud/Deceit): Plaintiff must prove the following: 1. False representation of a material fact Non-disclosure: Generally there is no duty to disclose a material fact. Exceptions: 1. Fiduciary relationship: Executor/beneficiary, majority/minority stockholder, principal/agent, bank/depositor, family members, old friends, etc. 2. Active concealment: One who has actively concealed facts has a duty to disclose the facts 3. Incomplete statements: If defendant speaks, he must disclose enough to make his statement not misleading 4. New/changed information: If a person makes a statement and later new information makes the original statement misleading, he must disclose the new information. 2. Scienter: Knowledge that the statement was false 3. Intent: Intent to induce plaintiff to act/refrain from action by relying on the representation 4. Justifiable reliance: The plaintiff justifiably relied upon the misrepresentation 5. Causation: 6. Damages

DEFAMATION Defamation Libel: Written words, printed words, or other communication with equivalent permanence. Slander: Spoken words, transitory gesturesless permanent. 1. Defamatory statement of fact: Tends to harm reputation. If it is not clear whether the statement was defamatory, plaintiff must show: Inducement: The facts made the statement understandable to the hearer/reader Innuendo: Meaning of the defamatory words 2. Of and concerning plaintiff: Coloquium: Evidence showing that the words were of and concerning plaintiff Big groups: Not actionable Small groups: Each individual may sue Deceased: Defamation of a deceased person is not actionable. Must be living at time of the defamation. However, the a defamation claim will survive death. 3. Publication: Reaches at least one other person, other than the plaintiff, who understands it. NOTE: Publication does not have to be intentional. This is not an intentional tort. Secondary publication: A republication subjects that person to liability, and also increases original publishers liability if republication is fo reseeable. Single publication rule: News publications (multiple printings of newspapers, magazines, etc. equals only ONE cause of action) Failure to remove defamatory matter: Publication 4. Damages: Generally special damages (economic harm) must be proved. However, special damages are presumed and do not need be proven if: Slander per se: Imputation of (1) Major crime; (2) Loathsome disease (leprocy; venereal disease); (3) Lack of qualification/dishonesty in profession; (4) Unchastity of a woman: Special damages presumed. Libel: If libel (written words, printed words, or other communication with same permanence): Special damages presumed. MINORITY: Libel per quod (not defamatory on face), must show special damages. Constitutional considerations: 5. Falsity: (Not opinion, insults, name calling, etc.) Public concern: Plaintiff must show falsity. NOTE: Any information about a public figure or public official is likely to be public concerns. Private concern: Defendant has burden to show truthfulness as a defense. 6. State of mind Private person/private matter: Negligence. NOTE: NYT Malice opens the door to presumed/punitive damages. Public figure (voluntary placement into public eye)/Current public official/candidate: NYT malice/Actual malice/Reckless disregard for the truth. All mean the same thing. DEFAMATION DEFENSES Truth: Truth is an affirmative defense, burden on defendant (unless statement involves a matter of public concern). Consent: Consent is a defense to defamation. Absolute privileges: These privileges are NOT extinguished, even if statement is not made in good faith. Communication between husband and wife: Statements made between spouses is absolutely privileged. Statements in judicial proceedings: Statements made in judicial proceedings (by lawyers, in litigation documents, etc.) are absolutely privileged if related to the proceeding, even if not believed to be true. Statements in legislative proceeding: Statements made in legislative proceedings are absolutely privileged (need not relate to the proceeding). Conditional privileges: This privilege is extinguished if there is excessive publication or irrelevant defamatory statements Statements in self/third party/public interest: Any statement made to protect own business, warn employee/ers , protecting from another defamatory statement, turning someone in to police, etc. PRIVACY TORTS Intrusion upon seclusion: 1. Intrusion of a reasonable expectancy of privacy: Physical invasion, looking into windows, listening through door, wiretapping, videotaping, etc. NOTE: Republication by media may be protected. 2. Objectionable to a reasonable person Appropriation of name or likeness: 1. Unauthorized use of an individuals name, likeness, or image 2. For commercial advantage: Does not include newsworthiness pictures taken an put into the news, or even movies made about people without permission. That is fine. Must be used for advertising, etc. Public disclosure of private fact: 1. Public disclosure of a private fact 2. Fact is not a matter of public concern: NOTE: Private matters in public records are absolutely privileged. EXAMPLES: Financial information. Academic information. Medical information. 3. Objectionable to a reasonable person False light: This is a good fallback tort if a defamation claim fails. 1. Placement of another in a false light: Does not have to be defamatory. 2. Widespread publication: Must be widespread dissemination 3. Objectionable to a reasonable person 4. State of mind: Same as for defamation MISUSE OF LEGAL PROCEDURE Malicious prosecution/Wrongful use of civil proceedings: Plaintiff may recover damages for harm to reputation and emotional distress resulting from the proceedings. 1. Initiation of criminal proceedings against somebody without probable cause/ Initiation of civil proceedings against somebody without basis NOTE: Most jurisdictions include wrongful civil actions. 2. Malicious intent 3. Proceedings have terminated in favor of the accused 4. Damages Abuse of process: Use (or threat of use) of any form of process to bring about a result other than that for which the process was intended, causing damages. EXAMPLE: Calling (or threatening to) police without just cause. ECONOMIC RELATIONS Injurious falsehood (Trade libel): 1. Derogatory statement relating to plaintiffs property, its quality, or to his business 2. Publication 3. Causation 4. Interference with his relations with others results Interference with contractual relations/prospective economic expectancy: 1. Valid contract/economic expectancy 2. Intent to wrongfully interfere with contract/economic expectancy 3. Causation 4. Interference results JOINT TORTFEASORS Joint and several liability: When multiple tortfeasors act in concert, breached a common duty, or created an indivisible harm (even by separate acts), each defendant is liable for the entire amount of plaintiffs damages. Abolishment of joint and several liability: Where joint and several liability has been abolished, a tortfeasor may only be held liable for his proportion of the damages. (40% fault, 40% of damages). Apportionment: Damages will be apportioned where there are (1) Distinct harms; (2) There is a reasonable basis for determining apportionment Contribution: If one tortfeasor paid more than his equitable share of liability, he has a right to contribution from the other tortfeasors. EXCEPTION: A defendant who has committed an intentional tort may not seek contribution. Indemnity: One tortfeasor is entitled to get reimbursed by another for any and all liability: (1) Vicariously liable party; (2) Non-manufacturer held strictly liable for a product VICARIOUS LIABILITY: Will be entitled to indemnification by principal tortfeasor. Respondeat superior: An employer is also liable for tortious acts of employees acting within scope of employment (in employers interesteven against employers orders) Transportation: Transportation to and from work generally not within scope of employment. However, travel in furtherance of work, while at work, etc. generally within scope. Make argument. Detours: Minor deviations, such as getting gas, or minor personally-motivated detours: within scope. Frolic: A substantial personally motivated deviation: not within scope. NOTE: Liability of employer returns only when there is proof of return to scope of employment. Intentional torts: Generally, intentional torts committed by employees are not within scope of employment, unless reasonably connected with employment (bouncers, security, etc.) Negligent hiring: An employer may also be liable for his own negligence in hiring.. Independent contractors: Employers of independent contractors are not vicariously liable for torts of independent contractors. EXCEPT: 1. Non-delegable duties: Duty is non-delagable (safety issues, harm to invitees, etc.) 2. Negligent hiring: Contractor is negligent in hiring independent contractor. NOTE: This is not vicarious liability, but liability for the principals own negligence. 3. Peculiar/inherently dangerous work: The contracted work is inherently dangerous Factors: The following factors may be used to determine whether the person is an employee or an independent contractor: (1) Understanding/characterization by the parties: (2) Separation of businesses; (3) Supervision of the work; (4) Degree of skill required; (5) Length of employment: The longer and more indefinite the period, the more likely to be to be an employee. The shorter and more definite the period, the more likely to be an independent contractor. (6) Whose tools are being used; (7) Payment Joint enterprise: Members of a joint enterprise are vicariously liable for torts of others committed within scope of the enterprise Ownership of a vehicle: The owner of a vehicle may be vicariously liable for torts of driver only if: (1) Errand for owner; (2) Negligent entrustment; (3) Permissive use statutes hold vehicle owners liable. Tavern owner: Tavernkeeper not vicariously liable UNLESS there is a Dramshop Act. Parent/child: A parent generally is NOT liable for the tortious act of his child. However, parents themselves may be liable for negligence if they know of certain propensities of the child and do not act reasonably. WRONGFUL DEATH AND SURVIVAL: Modern statutes allow recovery for property damage and personal injuries after a wrongful death (though defamation actions do not survive). Death statutes: Compensates family members for their loss. May include loss of support, loss of services, loss of consortium, NOT pain and suffering. These are paid to family, and are NOT subject to decedents creditor s. Survival statutes: Preserve claims of decedent. May recover damages for pain and suffering, medical expenses, and lost wages between injury and death. These are paid to the estate, and are subject to decedents creditors. Fetus: There may be a wrongful death claim for the death of a viable fetus in utero. ALSO NOTE: A child, if born alive, is permitted to maintain an action for consequences of prenatal injuries. Defenses: Comparative fault principles apply both to the decedent, and to the beneficiaries of the decedent. IMMUNITITES Government immunity: Generally abolished. Even where it still exists, it will not be applied when a government is involved in a proprietary (could be done by private organization) rather than a governmental function. Intra-family tort immunities: Generally abolished.