TORT LAW

Tort law compensates the party who has suffered a loss or injury due to another party’s alleged
wrongful conduct. Its purpose is to provide remedies for the invasion of protected interests such as
physical safety, property and intangible interests.

Compensatory Damages
General damages are awarded to the plaintiff for the harm that can be directly linked to the defendant’s
actions, which cannot be proven with a receipt. E.g.: Physical pain, suffering, injury, loss of
companionship, lowered quality of life, etc.
Special damages compensate the plaintiff for quantifiable monetary losses, specific situation for a
person that is different for other (surgeon’s hand is cut). E.g.: Medical expenses, repair and replacing
property, lost wages, etc.

Punitive Damages
As a form of punishment and act of deterring others from similar wrongdoings, courts may award them
to a particularly egregious or reprehensible act. Can also be awarded in suits involving gross negligence.

INTENTIONAL TORTS AGAINST PERSONS

The intent of the tortfeasor is understood not as a necessarily evil motive, but that they meant for the
consequences of their act to happen or knew with substantial certainty that specific consequences could
result. Pushing someone, and causing an injury is an intentional tort.

Assault and Battery – Right to protect and safeguard the body

Intentional and unexcused threat of immediate harmful or offensive physical contact that create a
reasonable apprehension (determined by the reasonable person standard) of imminent harm in the
plaintiff. The actual completion of the act, and if it causes harm or is offensive, constitutes battery. It can
involve any part of the body or anything attached to it, based on the extended personality rule.

False Imprisonment – Right to freedom of movement

Unjustified intentional confinement or restraint of an unwilling person’s activities, with physical
barriers/restraint or threats (not moral pressure). Exception – Merchants can, under “the privilege to
detain”, use reasonable force for a reasonable length of time to delay suspects of shoplifting awaiting
the police.

Intentional Infliction of Emotional Distress

For an act to be actionable – capable of serving as the ground for a lawsuit -, it must be extreme and
outrageous exceeding the generally accepted decency bounds. Indignity or annoyance are not sufficient,
but repeated annoyances with threats are.

Defamation
Hurting someone’s good reputation through defamatory statements of fact. It is known as libel when
done in writing and slander in oral or other non-permanent forms. The defamatory statement must
meet the publication requirement¸ so the message has to be communicated to a third party, be it by
chance or intentionally. General damages are presumed as a matter of law for libel, so they needn’t
prove the injury. Special damages must be proved in cases alleging slander because of its non-
permanent characteristic, except for cases of slander per se (statement of disease, commission of
improprieties while engaging in a profession or trade, commission or imprisonment for serious crime or
unchaste/sexual misconduct).
Defenses – if the statement was TRUE, then no tort has been committed. Privileged speech includes
granting of absolute privilege (attorneys, judge in the courtroom and government officials during
legislative debate) and qualified privilege (written evaluations of employees, made in good faith and
publication is limited). Damages may be recovered by proving that the privilege was abused. Public
figures can’t sue for defamation unless the statements are made with actual malice (knowledge of its
falsity or reckless disregard of the truth). Reason being they can affect many people’s lives and have
access to public medium for answering to falsehoods.

Invasion of Privacy – Right to solitude and freedom from prying public eyes
1. Appropriation – Using name, picture or other identifying characteristic for commercial purposes
without permission. Degree of likeness may differ from court to court. In some states it constitutes a
standalone tort and is known as right to publicity, aiming to protect an individual’s financial interest in
the commercial exploitation of their own identity, viewing it as a property right and this being
inheritable through will.
2. Intrusion into affairs or seclusion – home, computer, eavesdropping, etc.
3. False light – Publishing misleading stories or implying false facts about someone, looks to protect
mental/emotional well-being.
4. Public disclosure of private facts – facts that ordinary people or by reasonable person standards
would be found objectionable or embarrassing. Information that isn’t of public concern.

Fraudulent Misrepresentation
Intentional deceit for personal gain, misrepresenting material fact or conditions know it’s false or with
reckless disregard for the truth. Looking to convince the other party, who must have a justifiable
reliance and suffers a damage because of it (causality). Puffery or seller’s talk don’t constitute grounds.
Statements of opinion are valid when they’re made by professional/superior knowledge.

Abusive or Frivolous Litigation – Right not to be sued without a legally just and proper reason
Abuse of process is applied to the improper use of legal processes or for another purpose that it was
designed for. It doesn’t require proof of malice or limited to prior litigation (subpoenas, any formal legal
process). Malicious prosecution applies when A initiated lawsuit with malice, without probable cause
and lost. The plaintiff must prove injury other than normal costs of litigation.

BUSINESS TORTS
Wrongful Interference with a Contractual Relationship
There must be a valid, enforceable contract, a 3rd party must know it exists and they must intentionally
induce a party to breach the contract.

Wrongful Interference with a Business Relationship

Predatory behavior with the intention of unlawfully driving competitors out of the market, as it
interferes with a prospective economic advantage and would be considered an unfair trade practice.
The plaintiff has to prove the use of predatory methods to harm an established business relationship,
and the causality.

Defenses
Prove justified, permissible or bona fide competitive behavior.
INTENTIONAL TORTS AGAINST PROPERTY
Trespass (on)to Land – Right to exclusive possession
Entering without permission to land and things permanently attached to it, remains and allows anything
to remain on it (includes shooting over, extending construction, etc.). The owner must have the means
to establish that someone is a trespasser, through signs. If they commit illegal acts, they are established
impliedly as a trespasser. Before, trespasser was liable for damages and cannot hold the owner liable
for damages sustained on the premises. Now, the owner must exercise a reasoble duty of care by
posting signs for dangerous events (dogs), and they may be held liable under “the attractive nuisance”
doctrine for young children or impaired individuals who enter the premises after something caught their
attention. The owner may detain a trespasser with reasonable force for reasonable time.

Defenses – Trespass was warranted (sufficient reason) in order to assist someone in danger (higher
danger) or someone with a license (revocable).

Trespass to Personal Property

Someone takes, harms through diminishing value/condition/quality, interferes/bars owner access to
possession and enjoyment of personal items. Pays for the damage caused. Defense is a warranted
trespass.

Conversion
Possessing, altering and using personal property without permission or failure to return a borrowed
item. The degree of interference is higher in that the tortfeasor may have to pay for the full price. Good
intentions aren’t a defense.

Disparagement of Property
Economically injurious falsehoods are made about another’s product/property.

CYBER TORTS – defamation

ISP may disclose personal information about customers when ordered by a court, lawsuits are brought
against “John Does”. Protected by the Communications Decency Act, ISPs are usually not liable for
publishing defamatory statements, although some courts have started to limit this immunity.
Federal CAN-SPAM Act – 2003, prohibits certain spamming activities such as false return addresses,
misleading info or dictionary attacks and harvesting emails.
US Safe Web Act – Allows Federal Trade Commission to cooperate and share info with foreign agencies
to investigate and prosecute cyber-tortfeasors.

NEGLIGENCE
Harm caused by another’s conduct (act or omission), a failure/breach to exercise required/owed duty of
care and creates a foreseeable risk with results in a legally recognizable injury. In determining whether a
duty of care has been breached, the reasonable person standard is applied, being it objective because it
takes in a society’s judgment of how an ordinarily prudent person should act. The degree of care to be
exercised depends on how the judge/jury decides the defendant should’ve acted/occupation/other.

Duty
Landowners must protect individuals coming onto or are in their property. Those who rent or lease must
also supply correct info and may be held liable for negligent misrepresentation.
Retailers must warn business invitees of risks and protect them against foreseeable risks which the
owner knows or should know. They must discover and remove any hidden dangers.
Obvious risks provide an exception in some cases.
Professionals have a higher special duty of care because they have the knowledge or a skill superior than
ordinary people. They may be liable for malpractice/professional negligence.
People do not have the duty to rescue a strange in peril, if someone does so, the rescuer is charged with
a duty to follow through with due care in the rescue attempt. People involved in special relationships
(child/spouse, teacher/student/hiking) have the duty to rescue the other.

Causation
Two questions must be answered, the but for test determines the causation in fact, but for the careless
act, the injury would not have occurred. The proximate cause looks for the closest and most relevant act
that caused the injury, justifying the imposing liability and limiting the scope of what could be
considered a foreseeable injury.

Injury Requirement and Damages

If no legally recognizable injuries result, there’s no tort not damages to compensate. Usually
compensatory damages are awarded, punitive damages are imposed on grossly negligent conducts.

DEFENSES TO NEGLIGENCE
Assumption of Risk
A plaintiff who voluntarily enters into a risky situation, knowing the risk involved, isn’t allowed to
recover. Express assumption of risk can be written or oral while conduct indicated implied assumption.
This isn’t applied in emergency situations (higher interest) or a statute protects a class of people from
harm (employer safety statutes).

Superseding Cause
An unforeseeable intervening event that happens between a wrongful act and resulted injuries relieves
the defendant of liability for the injuries caused by the superseding event.

Contributory and Comparative Negligence

A past common law doctrine which precluded plaintiffs from recovering if they were also negligent.
Now it’s been replaced by comparative negligence where the plaintiff’s negligence if computed and the
liability for damages distributed accordingly.
The Pure Comparative negligence allows the plaintiff to recover a percentage of damages even if their
fault is greater than the defendant’s.
The Modified Comparative Fault system proposes two options: a. “50% rule” Can’t recover if fault is 50%
or more. b. “51% rule” Can’t recover if they are responsible for more than half of the accident.

SPECIAL NEGILGENCE
Res Ipsa Loquitur
Plaintiffs have the burden of proving the defendant’s negligence, but this is presumed when the event
creating the damage doesn’t occur in absence of negligence. The event must have been within the
defendant’s power to control and there mustn’t be voluntary action on the part of the plaintiff.

Negligence Per Se
Action of omission which constitutes a criminal conduct because of an ordinance, statute or law, causing
an injury. Thus negligence is established.
“Danger Invites Rescue” Doctrine
Someone avoiding a harm about to be caused by the tortfeasor and injures another is not liable. The
original wrongdoer is liable to anyone injured. Someone rescuing another can sue whoever caused the
dangerous situation. The rescuer shouldn’t be held liable for damages.

Special Negligence Statutes

Under the Good Samaritan Statutes, someone who received aid from another cannot sue them for
negligence. Only medical personnel and people rendering medical aid are protected in California.
Under the Dram Shop Acts, bar owners/bartenders may be held liable for injuries caused by a drunkard
and served by bar personnel. Same applies to social hosts. Negligence needn’t be proved.

STRICT LIABILITY
Certain activities can be held responsible for any harm even if the defendant used utmost care.
Abnormally dangerous activities imply an extreme risk. Wild animal owners, domestic animal owners
who knew or should have known that the animal was dangerous/propensity to harm, etc. Product
liability is applied because companies can bear the costs and are making a profit.

AGENCY

Agent acts on behalf and instead of the Principal when negotiating and transacting business with 3rd
parties. The relationship is a fiduciary one, so it’s based on trust and confidence. In employer-employee
relationships there’s a lot of overlap between agency law and employment law. It’s important to
establish the difference because of the employer’s liability for the worker’s actions. The criteria used by
courts to determine the status of an employee are:
1. How much control is exercised over the details of the work. (IRS, taxes, Social Security)
2. Does the person hold a different or similar to the employer
3. Is the work done by a specialist without supervision or under the employer’s direction?
4. Who supplies the tools?
5. Employment period length
6. Method of payment is by time period or at completion of job
7. Degree of skill, specialized or not.

Independent contractors may or may not be an agent, they are not controlled when it comes to their
physical conduct in the performance of their work. Under Copyright Act 1976, any copyrighted work
created by an employee within the scope of their employment at the request of the employer is “work
for hire” and is owned by employer. Independent contractor owns the copyright.

Formation of Agency Relationship

Consensual, consideration isn’t required, nor it be in writing. Person must have contractual capacity to
be principal and if so cannot legally enter into contracts so through an agent. Licensed professionals
can’t employ unlicensed agents to perform professional actions. Anyone can be agent. Created for any
legal purpose.
Agency by Agreement – Express or implied agreement. Power of attorney or by statute of frauds written
Agency by Ratification – Person or agent acting outside of scope of authority may make contracts, if
principal approves of it by word or action, they’re creating an agency relationship by ratification.
Agency by Estoppel – Principal causes 3rd party to reasonably believe that X is their agent and 3rd acts to
their detriment in reasonable reliance of that belief, the principal is “estopped to deny”.
Agency by Operation of Law – Court may rule the existence of an agency relationship, usually in family
relationships. Emergency situations where the agent is unable to contact the principal and failure to act
would cause substantial loss to the principal.

DUTIES&REMEDIES
Agent’s Duties to the Principal
Performance – Use reasonable diligence and exercise degree of skill required, ordinary care. Failure to
do so may result in breach of contract, termination of contract and becomes liable for damages.
Gratuitous agency relationships can’t be liable for breach of contract, subject to tort liability.
Notification – Principal may be liable even if agent didn’t inform them, it is presumed.
Loyalty – Act solely for the benefit of the principal, not in their own or a 3rd party’s interests.
Obedience – Follow all lawful and clearly stated instructions, save for emergency situations.
Accounting – Keep and make available accounts registering all transactions formed and other incomes
and expenses. Keep separate accounts for principal’s funds and agent’s personal funds. License
professionals are also subject to disciplinary proceedings.

Agent’s Remedies
Tort&Contract Remedies – Normal breach of duty may lead to termination and sue for damages.
Demand for an Accounting – Withhold further performance and demand accounting.
No right to Specific Performance – When the relationship isn’t contractual.

Principal’s Duties to the Agent/Agent’s Remedies

Compensation – Payment for work. No express amount agreed on, customary compensation is owed.
Reimbursement – Principal must reimburse agent for payments made from personal funds for necessary
expenses in the course of the reasonable performance of their duties.
Indemnification – If a principal fails to perform the contract, 3rd party may sue agent. Principal must
compensate the agent for any costs incurred due to authorized and lawful acts and transactions.
Cooperation – Not prevent performance. Grant exclusive territory, not compete.
Safe working conditions – Duty to inspect and warn of any unsafe situations.

Principal’s Remedies
Constructive Trust – Breach of fiduciary duty if they retain benefits or profits.
Avoidance – Right to avoid any contract entered into with the agent.
Indemnification – (TORT) Principal sued by 3rd party for agent’s negligence or violates instructions,
principal can sue agent for indemnification

SCOPE OF AGENT’S AUTHORITY

Express Authority
Oral or in writing, declaring clear, direct and definite terms. Equal dignity rule (contract executed is in
writing, agent’s authority is in writing) allows for voiding contract at the option of the principal. Business
practice has exceptions, executive officers don’t need written authority to conduct ordinary business
transactions, when agent acts in presence of principal or agent’s act of signing is perfunctory.
The power of attorney is written and notarized, it can be special or general.

Implied Authority
An agent has the implied authority to do what is reasonably necessary to carry out express authority and
accomplish the objectives of the agency. It can also implied by custom or inferred from the position they
occupy. It can’t contradict their express authority.

Apparent Authority + Estoppel + Emergency Situations

3rd party reasonably believes that “agent” is representing principal for specific acts, thorough a
principal’s pattern of conduct over time. When a principal causes a 3rd party to believe that someone is
an agent and the 3rd party changes position to their detriment in good faith reliance, the principal is
bound by the agent's actions and estopped.
Unable to communicate with principal, agent can take action to protect or preserve the property and
rights.

Ratification
Can be related to tort of fraudulent misrepresentation. Principal ratifies agent’s unauthorized act by
affirming or accepting responsibility. No ratification equals an unaccepted offer, so 3rd party can revoke
it without liability. Agent can be liable.
1. Agent acts on behalf of disclosed principal
2. Principal knows material facts, if not they can rescind
3. Principal affirms in its entirety
4. Principal and 3rd party has legal capacity
5. Ratification before 3rd party withdraws

LIABILITY
CONTRACTS
Disclosed principal
Known ID of all parties. Authorized acts: Principal liable to 3rd party, agent not liable for principal
nonperformance.

Partially disclosed principal

Only knows agent is acting on behalf of someone. Authorized acts: Both principal and agent can be held
liable.

Undisclosed principal
No knowledge of agency relationship. Authorized acts: Both principal and agent are reliable. Agent is
entitled to indemnification. Principal can require 3rd party to fulfill contract unless principal was
excluded as a party in the contract, agent didn’t sign in representative capacity, intuitu personae agent.

Unauthorized acts: Agent is liable in all 3 circumstances. Also liable for breaching (doctrine) implied
warranty of authority (not breach of contract because agent wasn’t intended to be party). Exceptions:
3rd party knew that agent didn’t have authority or agent expressed uncertainty as to their SoA.

TORTS&CRIMES
Principal
Liable for harm resulting from their own negligence of recklessness, giving improper instructions, wrong
tools, rules that result in agent’s committing a tort. If they authorize an agent to commit a tort they are
liable, and so is the agent for being the tortfeasor. Always directly responsible for agent’s
misrepresentation made within the SoA. Principal may also be liable for apparent authority fraudulent
acts. Is directly responsible for not correcting agent's mistakes (innocent misrepresentation). 3rd party
can rescind and seek damages.

Agent’s Negligence
Under the (doctrine) of respondeat superior, principal is liable for any hard caused to a 3rd party by an
agent within the SoA. It imposes vicarious liability/indirect liability on the employer, so 3r parties injured
because of an employee’s negligent acts can sue either one. The reasoning for this doctrine lies in early
common law, where a servant was viewed as the master’s property and therefore the master had
absolute control over the servant’s acts. Employers are in a better financial position to bear the loss,
spreading the cost of risk over the entire business enterprise.

Scope of Employment
1. Act authorized by employer
2. Time, place, purpose
3. Act commonly performed by employees as agents
4. The extent to which the employer’s interest was advanced by the act
5. Extent of involvement of employee’s private interests
6. Employer provided capital or tools
7. Employer has reason to know
8. Commission of serious crime

Detour v Frolic + Travel Time + Notice of dangerous conditions

Detour holds employer responsible. Frolic holds employee responsible (substantial departure form
employer’s business).
Commute and meals are outside of SoA. Travel salesperson’s travel time is inside SoA.
Knowledge of dangerous conditions is imputed to employer regardless of actual knowledge by virtue of
the employment relationship.

Liability for Agent’s Intentional Tort and Crimes

Employer is liable for t&c committed within the course and scope of employment under doctrine of
respondeat superior. Also liable if they know employee had propensity for committing tortious acts or
permitting them to engage in reckless actions prone to injury.
Agent is liable for their own crimes with exception of participation of employer or under specific
statutes, violate regulations on sanitation, sale of liquor, etc.
Not liable for independent contractor’s torts unless involving hazardous activities due to strict liability
imposed a matter of law or by statute.

TERMINTATION OF AGENCY
By Act of Parties
1. Lapse of time
2. Purpose achieved
3. Occurrence of specific event
4. Mutual agreement / rescind
5. By one party, renunciation of authority by agent and revocation of authority for principal
Notice of termination
Principal must inform agent with sufficient anticipation (reasonable notice) so they can recoup
expenses. They have the duty to inform 3rd parties, apparent authority continues unless notice is
received. Give notice directly for those who have dealt with the agent and constructive notice for those
who’ve only heard about the agency relationship. Wrongful termination can subject the canceling party
to a lawsuit for breach of contract.
Agency coupled with an Interest – A principal cant revoke an agency created for the agent’s benefit.

By Operation of Law
1. Death or Insanity
2. Impossibility of performance due to loss of destruction of the specific subject matter, or due to
change in law.
3. Changed circumstances (forza majora?) which would result in logical reasoning that a party may not
want an agency to continue because of an important detriment on that party
4. Bankruptcy, unless irrelevant to the purpose of the agency
5. War