Professional Documents
Culture Documents
INTENTIONAL TORTS
- Intent - purposefully causing elements of tort to occur (subjective - what D was thinking) OR
- substantially certain elements of tort will occur (objective - reas prudent person)
- Transferred intent - (1) To a different intentional tort, OR (2) to a different victim of tort
- (1) Intend to falsely imprison and cause battery (2) intent to hit A and hit B
- Must be tort to intended person in order to transfer to other
- Mistake - Even if D mistakes person/property/privilege while committing tort, still liable
- Some special privileges used as defense allow for reas mistake including self-defense
- Insanity/Infancy - insanity/infancy is not a defense for intentional tort
- UNLESS shown that there could not have been the necessary intent due to handicap
- P’s Negligence - this is never a defense for an intentional tort
- Extended Liability - even if bizarre consequences occur from what you intended, still liable
A. Battery
B. Assault
C. False Imprisonment
- Definition: (1) Intentionally (2) restrains/confines (3) against one’s will (4) boundary (5) appreciable time
- Accidental confinement is NOT false imprisonment - locking store while patron in bathroom is not FI
- Boundary may exist in conception only - not having clothes to leave a lake imposes a boundary of lake
- Boundary may be a large area even as big as a city - but this is rare
- Exclusion is not the same as confinement - refusal to admit is NOT false imprisonment
- False arrest is a form of FI if not privileged or if no law broken - you must submit to arrest to be FI
- Victim must only be aware of confinement at time of confinement - if later forgetting, doesn’t matter
- If victim not aware but harmed during imprisonment, may still be FI - baby harmed while held
- If a person remains in their car to avoid towing, still FI because protecting their property
- A threat for future confinement is not enough, must be imminent - unless P fears disobeying
- Foolish attempt to escape may be found unreasonable and D would not be liable for damage
- Definition: (1) Intentional/reckless act (2) extreme and outrageous conduct (3) causes severe emot dist
- Double threshold tort - conduct and severity of distress:
- If conduct was awful but no severity of distress - no action
- If conduct was minor but with severe distress - no action
- Simple comments like “You stink to me” are not considered extreme and outrageous
- Transferred intent does NOT work here with IIED
- IIED can be shown if the distress caused is a phobia
- Distress must be severe to RPP EXCEPT if knowing of touchiness and exploiting weakness
- Conduct must be beyond the bounds tolerated by reasonable society
- Common carrier, contract, or non-competitive public utility implies courtesy
- May be held liable for intentional gross insults causes patron mental distress - no extreme needed
- 3rd party victim recovery usually needs: (1) close relative of victim (2) present at scene (3) D aware of presence
- Liable for both emotional distress and resulting bodily harm - though physical injury not required for IIED
E. Trespass to Land
F. Trespass to Chattels
G. Conversion
- Definition: Treating chattel of another as your own - so seriously interfering that may be req’d to pay full value
- Only very serious harm to the property or other serious interference with right to control means conversion
- Purchasing stolen property even if in good faith is still conversion on the buyer’s part
- Damage recovered in conversion case is the full value of the chattel - effectively sells chattel to the D
- Conversion may be shown with only nominal damages, but not so in trespass to chattels
- Often conversion or trespass to chattels may be claimed - P must decided what compensation they require
- Items protected as property without being destroyed include:
- Literary works or scientific research
- When secrecy is necessary to ensure value
- Information sold as a commodity (commodified info)
II. PRIVILEGES
A. Consent
B. Self Defense
- Definition: Using reasonable force that one reasonably believes necessary to protect oneself from immediate harm
- Privilege when:
1. One reasonably believes force is necessary even if mistaken
2. Transferred to a third party (defending against A and injure B)
3. Against sick people in your home
- No privilege when:
1. Threat has ended
2. Merely provoked by words/insults
- Retreat:
1. No need for retreat if you have an option of limited force that won’t cause serious injury
2. Must try to retreat if only self defense is serious force
a. No need to retreat if you will place yourself in harm’s way
3. No need to retreat if inside your own home
- If threat ends and you continue to “defend” now you are liable for tort action - threat must be immediate
- Must have reasonable apprehension of serious bodily harm or loss of life in order to use deadly force as defense
- Not allowed to use excessive force in retaliation (defending against rock thrower with machine gun)
- Size and strength are considerations - smaller person may exert greater force against larger person (reasonability)
C. Defense of Others
- Definition: one may use reasonable force to defend third parties from immediate physical harm
- One may have privilege even if mistakenly helping the wrong person (helping person who started fight)
- Relationship between P and 3rd person might influence - defending family more important than stranger
- Only able to defend if person you are defending currently has the privilege to defend himself
D. Defense of Property
- Definition: one may use reasonable force to protect real or personal property
- May not use deadly force in order to protect property - unreasonable
- Even slight force is excessive if a simple verbal warning would suffice
- Verbal warning not necessary first if dangerous to do so
- Signs warning of danger do not give privilege to use force
- If present in your home, now possibly considered self-defense and greater force may be allowed
- A reasonable mistake of person causing harm is not a privilege or excuse
- Barbed wire fences may be perceived simply as deterrents and not excessive force unless installed negligently
E. Recovery of Property
- Reasonable force to recover property if wrongdoer used force or fraud and pursuit is fresh
- Any lapse in time or break in pursuit removes privilege of true owner
- Reasonable mistakes don’t matter - if you get wrong person or they have a right, you are liable
- No unnecessary violence is allowed at all - may not recover property if on other person (snatching necklace)
- Shopkeepers may use reasonable force to detain someone for a reasonable period of time if suspecting theft
- Innocent customers cannot recover against shopkeeper if suspicion was reasonable
F. Necessity (Duress)
- Definition: one may interfere with property of another in order to protect against a greater injury
- Action must minimize overall risk - thus private necessity must save greater interest
- Public necessity - protecting the community by injuring private personal property:
1. Valid if good faith to save other property - much damage needed (can’t save one by destroying another)
2. Necessity must be apparent to reasonable person
2. Complete privilege - no need to pay damages even if it was unnecessary as long as reasonable at time
- Private necessity - protecting private personal property by injuring another’s property deemed less valuable:
1. Landowner may not refuse entry to someone protecting private interest or he becomes liable
2. Incomplete priv - actual damages must be paid by injuring party- not liable for nominal trespass damages
3. If people on or in property saving, may become public necessity and liability denied
G. Discipline
H. Justification
- Defense may claim they were justified in their actions as a defense - not very important topic
III. NEGLIGENCE
A. Duty
- Definition: actor owes a duty of reas care under circum to those 4CBL exposed to risk due to actor’s conduct
- Reasonable care standard unless under a limited duty
- No duty to pick up items that are not intrinsically dangerous (golf club, no - shotgun, yes)
- Sometimes statutes will impose a definition of the reasonable care necessary in a certain situation
B. Breach
b. Professional
- Professional standard used when holding oneself out as a professional - reasonable professional
- Objective standard - don’t consider training or abilities - not based on custom
- Experts may testify as to what reasonable prof would do - not what he would do
- Reasonable attorney must have adequate knowledge, good judgment, and reasonable care
- Not liable if issue not yet decided by highest court
- No experts as judge is considered an expert on what reasonable attorney should be
- Doctors must use a standard in the medical community
- Strict locality standard - based on locale - allows for substandard medical community
- Locality standard - based on locale or other similar locale - Majority
- Ex. Wash DC is nation’s capital, should be leading in medicine, not isolated
- National standard - based on a nationwide standard
- Doctors often need expert testimony to explain what the standard is - not what he would do
- No expert needed if obvious even to lay person (leaving glove in person during surgery)
3. Aggravated Negligence
D. Damages
E. Rules of Law
- Some situations have a standard of conduct created by law - must stop/look/listen at RR to exercise reas care
- Must be a matter of law to go to jury - matter of fact is not enough to prove negligence
F. Violation of Statute
- Typically a statute setting a standard of care creates a shortcut for establishing negligence
- If a statute provides a civil remedy - apply the statute without going to trial
- Regulations work like statutes and may set standard of care for a situation - violation = negligence
- For a statute to be applicable, it must:
1. Set a specific standard of care (duty)
- Must be a clear standard - vagueness might render unusable
2. Protect a specific identifiable class
3. P must be a member of the protected class (breach)
- Prescription drug for human eaten by cat and poisons it - cat not part of protected class
4. Harm that occurred must be that which the statute set out to protect (causation)
- Don’t drive on Sundays - protects disturbing church, might not imply protecting people
- Don’t exceed 25MPH - describes how you should drive - implies protection of people
- If statute does not apply, it drops out of the case and case continues as normal case for negligence
- Meaning of a statute is always a question of law - thus not for jury to decide
- If a statute is silent as to the remedy, what happens when violated:
1. Majority - negligence per se - no excuses allowed
2. Presumption of negligence - excuse may rebut presumption
- If excuse - case goes to jury to decide who wins
- No excuses: child labor, pure food, federal safety appliance, “safe place” statutes, guns to minors
3. Prima facie evidence of negligence - enough to get to jury
4. Statute not used if standard of conduct is unclear - common law reasonability still applies
- Statute does not apply if compliance creates more danger than not (ex. Must walk on sidewalk, but sidewalk is icy)
- If statute is a revenue measure, it is not for benefit of a particular class - does not establish standard of conduct
- License statutes say whether you can/cannot do something - doesn’t say how you should do it - no SOC
- Absence of a license may not mean that doctor did not exhibit necessary care
- Might use statute to support a case as evidence rather than to prove negligence
- Statute saying must fence pigs to prevent crossbreeding might show necessary method for fencing
G. Proof of Negligence
1. Circumstantial Evidence
- Definition: D’s negligence must be related in a significant way in producing injury to impose liability
- No liability if negligent aspect of D’s conduct isn’t what caused injury - would have occurred anyway
- But for test - injury would not have occurred but for D’s negligent conduct
- Negligence must have more probably than not caused the injury
- If D’s negligence greatly increased the risk that occurred, may be liable
- Other jurisdictions require expert testimony as juror’s cannot speculate
- Loss of chance - reducing chance of survival may be enough to take to jury
- D only must show that P’s claim is not the most probable cause - not that his claim is
- In attorney malpractice, P must show D was negligent and that P would have won case but for D’s negligence
B. Concurrent Cause
- Definition: Two or more acts of negligence combine in time to cause a single injury
- Either would have caused it without the other or neither would have caused it without the other
- Concurrent does not necessarily mean acts occur at same time, but injury at one time as a combo of both
- One bullet hits arm, later one hits leg - not concurrent; one crash causes broken arm and leg - concurrent
- Joint and several liability - both parties are liable jointly or separately for the entire injury
- No double or triple costs, however, if all money from D1, no money from D2 - D1 must sue D2
- D is liable even if another factor combined and would have caused harm alone if D’s was a subst factor
- Damages may be lower if subsequent issue would have caused same harm (1st fire burns, 2nd would have)
- Even though not a “but for” cause, negligence may be a cause in fact and thus liability
- Definition: D is responsible for consequences that flow from unreasonable risks that were 4CBL at time of act
************** SKIP FOR NOW ****************
VI. DUTY OF CARE
- Definition: Standard is to exercise reasonable care, UNLESS an actor is under a limited duty:
A. Privity of Contract
B. Failure To Act
1. Traditional Grounds
a. Objective symptoms - if reaction of normal person, not hypersensitive person unless known
b. Zone of danger - narrowly escaped physical danger - no objective symptoms needed
3. Special Category
a. Misdelivery of death message may be liable (delay leads to missing funeral - RPP distress)
b. Interfering with dead bodies creates liability - not all juris, but most
4. Bystander
E. Unborn child
2. Wrongful Death - injury to child in utero, child not born (statutes, not common law)
3. Wrongful Birth/Life
a. Wrongful birth (parent) - but for Dr.’s negligence, would have choice of avoiding birth
1. Emotional distress
2. Extraordinary expenses
b. Wrongful life (child) - but for Dr.’s negligence, would not have been born
1. Extraordinary expenses - through majority of life
2. NOT for emotional distress, diminished childhood, parents’ inability to cope
4. Wrongful Pregnancy
5. Other
VII. DEFENSES
A. Contributory Negligence
- Definition: If P is negligent in any way, claim is barred against D regardless of D’s conduct, EXCEPT
- Last clear chance - if D has last clear chance to prevent injury, may be held liable
- Contributory negligence is only used in AL, VA, MD, NC, and DC
B. Comparative Negligence
- Definition: P recovers the amount of damages minus the percentage of damages due to P’s negligence
- Types of schemes for determining when to award damages:
1. Pure - D is only liable for the percentage of damages caused by him, even if only 1%
2. Modified - D is only liable if causing a high enough percentage of damages:
a. 49% rule - P’s negligence is not as great as D’s - if 50% or more by P - $0
b. 50% rule - P’s negligence is not greater than D’s
- First aggregate contribution of all D’s and then apply scheme - P = 40%, D1 = 35%, D2 = 25% - P recovers
- Even if P has more percentage than each individual D, may still have less than combined D’s
- Methods of recovery if joint tortfeasors:
1. Joint and several liability - Each D liable for total contribution of all D’s
a. Pro rata - divide the cost evenly among tortfeasors regardless of percentage
b. Comparative - each D pays the percentage of the damage due to their negligence
- CAUTION - make sure it is % of total damages, not just % of D’s damages
2. No joint and several liability - Each D only responsible for % of contribution
- No more concept of last clear chance - blame is shared among tortfeasors
- Avoidable consequences - SKIP FOR NOW
C. Assumption of Risk
1. Express - parties make an agreement (usually contract) to release D from liability for negligence
- Definition: Having actual knowledge of a particular risk and its magnitude and voluntary exposing to it
a. Primary - Taken over by comparative fault - P’s conduct as failure to exercise care of RPP
- Ex. Attending a baseball game assumes risk of being hit by foul ball
- Decreases/removes the duty necessary from D because P assumes the risk
b. Secondary - reasonable and unreasonable assumption of risk by P
- Ex. Diving into D’s pool from roof
- Either no duty for D or contributory negligence
- Unprivileged conditions - D has duty to maintain, cannot force P to use alternative b/c it exists
- Failure to take advance precautions (seatbelt/helmet defense) before accident
- Avoidable consequences - P has obligation to mitigate further losses after the injury
1. Statute of Limitations
- Majority: SOL begins to run once P discovers, or should discover, the injury
- Minority: SOL accrues after occurrence of injury
- Continuous treatment causing injury may delay accrual even if negligence occurs early
2. Statute of Repose
- Action is barred if not brought w/in certain time after relationship ends (limit on discovery rule)
VIII. VICARIOUS LIABILITY
A. Respondeat Superior
- Definition: Principle (employer) is responsible for his agent (employee) and act within scope of employment
- Going and coming rule - employer not responsible for commute (unless b/t sites, travel salesman, part of job)
- Dual purpose rule - P does something on way to doing job - depends on if frolic (personal) or detour (related)
- Joint and several liability - a way to make sure P can regain compensation by going after employer - indemnity
B. Independent Contractor
- Definition: One who has the right to control physical details of his work or delegate to others
- No vicarious liability for independent contractors
- Apparent authority - if independent contractor appears to represent one as an agent, may be liable
- Non-delegable duty - sometimes statute or other prevents one from delegating a duty to independent contractor
- Independent contractors may still be held liable for misfeasance if no vicarious liability
- If D is negligent in choosing an independent contractor, may be liable for concurrent negligence - not vicarious
C. Joint Enterprise
- Definition: Relationship with a common purpose/goal, pecuniary (financial) interest, and equal right of control
- Joint enterprise is a basis for vicarious liability
- Familial or personal relationships typically don’t qualify as the business or commercial interest needed here
D. Bailments
- Majority: Bailments do not make a bailor vicariously liable for acts of bailee in use of chattel
- Minority exceptions:
1. Family purpose doctrine - owner of family car liable for other family drivers if sharing
2. Automobile consent - owner of car may be liable for drivers with owner’s consent
3. Negative entrustment - lend car to someone without license
A. Animals
1. Trespassing intruders
2. Personal Injuries
- No strict liability when harm not caused by what makes activity ultrahazardous
- Minor shakes scaring sensitive mink when blasting miles away - normal risk, not ultrahazardous
- No strict liability to protect against harm due to unusual use of land - mink farm near blast site
- No strict liability if force causing harm cannot be anticipated - Act of God - can’t anticipate to prevent
- No strict liability if P brings harm on himself - must have knowledge harm will occur and act voluntarily
- Mere negligence of D will not bar recovery under strict liability - contributory negligence is no defense
X. PRODUCTS LIABILITY
A. Types of defects
1. Manufacturing - defect that arises as a difference from actual design of product (missing part)
- Strict liability - reasonable care or negligence of mfc not important
2. Design - actual design is defective as made, effectively rendering whole product line defective
- Risk/utility standard - liability based on analysis of factors
3. Information - instructions or warnings are inadequate to warn of danger
- Instruction = use product in following way, warning = if you use product, be careful
1. Components materially altered in mfc process (sheet metal used to build bike)
2. Special cases: food, used products, human blood/tissue, services, prescription drugs
C. Liability limitations - everyone in chain of distribution is liable as long as product defective when leaving them
D. Design defect
- Factors to consider:
a. Usefulness and desirability of product - utility to user and public
b. Safety aspects of product - likelihood of injury, seriousness of injury
c. Availability of a substitute - if same need and safer
d. Ability to eliminate unsafe character without impairing usefulness or expense beyond utility
e. Ability to avoid danger by exercise of care in use of product
f. Obviousness or awareness of inherent danger and avoidability
g. Feasability of spreading the loss in the cost of the product
2. Required elements
3. Defenses
a. State of the art - existing level of technology practically feasible - not same as industry custom
b. Obviousness of risk - nature might serve as own warning - causes P to exercise more care
- Not available for mfc defects because once discovered, P is using with knowledge
c. Contributory negligence - Local law should determine - contrib. vs. comparative negligence
- If P modified product in some way that made defect arise - may bar liability on mfc
- No reas care - notices problem 3 times but uninjured, 4th time injured - mfc not liable
d. Comparative fault - reduce recovery to extent of P’s fault contributing to defect
e. Misuse - P misuses product in UN4CBL way not due to defect (using sword to cut hair)
4. Prescription drugs
E. Warnings
1. Reasonableness - 4CBL risks could be reduced or avoided by warnings - omission make product unsafe
a. No duty to warn of obvious dangers - may detract from usefulness of non-obvious warnings
b. Whether reasonableness used is a question for the jury to decide
2. Presumption that P will read a warning - makes warnings useful
- Presumption is rebuttable by mfc if he can show user would not have read warning anyway
- Cause in fact is not absence of warning if P would not have read it
3. Post-sale duty to warn - if danger arises after sale of product, must either warn or recall product
F. Burden on P