Torts PMBR CD #1 Relevant for both essay and the multistate bar exam. Pocket areas. 1.
Intentional Torts 2. Negligence 3. Strict Liability 4. Defamation 5. Nuisance I.
Intentional Torts a. Assault i. Where the D acts intending to place the P in imminent apprehension of unpermitted contact and the P is placed in such imminent apprehension. ii. Mental tort 1. We look to the P’s subjective state of mind to see if the P was placed in imminent apprehension. a. As long as P was, D is liable for assault. iii. Apprehension is required for assault 1. Ex: If someone comes up from behind you and places a gun from behind your head but you don’t see it or if they have a hatchet and they’re going to hit you but you aren’t aware of it, this is not assault b/c there is no apprehension. 2. Compare: Battery 3. Future threats lack imminency and are insufficient for assault. 4. Words alone are insufficient, unless accompanied by some overt act. iv. Ex: 12-year old boy comes up to Superman and says Superman, I’m going to punch you in the stomach. Superman laughs. Is the boy liable for assault? 1. Yes, because a child can be held liable for his or her intentional tort, even though Superman knew that the youngster could not injure him. 2. If Superman believed that the young child was about to hit him, if he was placed in imminent apprehension, he can be liable for assault. 3. If the kid hits Superman, a battery has occurred. v. Ex: You intend to commit assault and then an unpermitted touching occurs. 1. Ex: You throw a rock at Johnny, aiming 2-feet over his head, and if you miss that but it hits his head, a battery occurs.
2 2. Assault will merge into battery where an unpermitted touching results. 3. D is generally liable for battery only and the assault merges into battery. 4. One instance where merger did not occur (multistate): a driver was operating his motor vehicle and a kid threw a snowball and hit the car. Once the snowball hit the car, this was battery . After the snowball hit the car, the driver was placed in fear of an accident and he swerved the car to avoid an accident. The driver then feared he was going to be involved in an auto accident after the snowball hit the car. Here, the driver could recover both for battery and assault. He was placed in fear. 5. Fear is generally not required for assault. Apprehension is all that is necessary. But, if the P is placed in fear, apprehension is satisfied. Fear is a more grievious mental state than apprehension. b. Battery i. Where the D acts intending to cause an offensive or harmful contact with the person of another and an offensive or harmful contact results. 1. Requires physical contact ii. Protection against battery extends to the person of the P and anything that can be closely associated or identified with him or her, such as clothing, or anything that can be grasped in the hand. 1. Ex: Someone yanks your tie, spits in your face, etc. – this is a battery. iii. Ex: Johnny is walking down the street with a cane and Andy comes by and kicks the cane away from his hand, Andy is liable for battery b/c the Cane is an extension of the P b/c it’s held in his hand. iv. Where you’re operating a car, the driver of the automobile – the car is an extension of the driver. If someone throws a snowball, this is a tortious battery. v. If you’re holding a horse by its reigns and someone hits the horse with a whip, then this is battery b/c the horse is an extension of the person. vi. If you’re sitting in a chair and someone pulls it out from under you, this is battery. vii. Prosser’s definition: Offensive touching. viii. D must act intending to offend P’s sense of dignity. 1. Ex: If you’re on a crowded bus or subway car and you push into somebody or the bus suddenly stops and you fall and you hit Jones, one of the other passengers, you’re not liable for battery. That’s socially acceptable conduct. You’re not
3 intending to commit an offensive or unpermitted conduct / touching. ix. Awareness of contact or damages is not required for recovery from battery. x. Battery is protection from unpermitted contacts. c. False Imprisonment i. D is subject to liability if: 1. The D must intend to confine the P within certain fixed boundaries, where there is no reasonable means of escape. a. Physical confinement – someone grabs your arm and doesn’t allow you to leave b. Threats of force – someone puts a gun to your head – saying if you leave this room, I’ll blow your head off. B/c of threat, you stay within certain boundaries. c. Unlawful warrantless arrest – false arrest – may constitute false imprisonment. ** (CA bar exam essay) d. Confinement can result no matter how brief the time interval involved (i.e., someone grabs your arm and detains your for 30 seconds) – if it’s against your will and you’re confined and not able to leave, then this is false imprisonment. 2. The D’s conduct—directly or indirectly--in fact does cause such a confinement. 3. P is aware of the confinement or is conscious. If he is not aware of it, we do allow recovery if he harmed by it. ** a. Awareness of the confinement is necessary. b. Exception: Young child (3-year old) or a moron or idiot – who may not be conscious of the confinement, then we do allow recovery for false imprisonment. c. Ex: 5-year old child is walking home from daycare; driver asks him if he wants candy. Driver gave him some candy, locked the doors. The child wasn’t aware of the false imprisonment, but the driver locked the doors. This is unlawful confinement within certain fixed boundaries. We do allow recovery here without consciousness of the confinement. ii. Shopkeeper’s privilege: 1. Storekeeper can detain a suspected shoplifter if there’s reasonable grounds to believe that a theft has occurred; the intention must be conducted in a reasonable manner; and, the detention must be for a reasonable period of time to make an investigation.
4 2. Ex: Storekeeper had reasonable grounds to believe a theft has occurred; he kept the woman for 30 minutes in his office – this was held to be an unreasonably long period of time. The store owner could have looked in her pocketbook or asked the suspected thief to open her pocketbook to determine if a theft had occurred. He did not have to keep this woman for 30 minutes against her will in a closed office. We allowed recovery for false imprisonment. 3. Very limited privilege a. Detention must be done with a reasonable manner b. Detention must be for a short period of time – enough time for the shopkeeper to determine if the theft has occurred. 4. No false imprisonment with this privilege. d. Intentional infliction of emotional distress i. Ex: Pulling chair out from under person at the Golden Globes. Is the person who pulled the chair out liable for battery or intentional infliction of emotional distress? IIED – offensive contact + very embarrassing. ii. D’s conduct must be extreme and outrageous and P must suffer severe emotional distress. iii. Bodily harm is not required. iv. Rest. Torts, Sec. 46 – severe emotional distress – various names: mental suffering, mental anguish, fright, horror, grief, shame, humiliation, embarrassment, anger, worry, and nausea. v. Ex (multistate): Third person is present. X directs conduct against Y and Z suffers extreme mental anguish after observing X’s conduct against Y. Where we have a third person present who suffers severe emotional distress, we allow recovery by a third person against the D, but this is required: 1. The third person must be a close family member of Y, the person to whom X directed the conduct to begin with. 2. The D must be aware or should be aware of the presence of the third person when he or she engages in such conduct. 3. Where the third person is a stranger, a pedestrian, not a close family member, we allow that third person to recover for intentional infliction of emotional distress if he suffers bodily harm. ** (frequently tested on the multistate) vi. We allow recovery where the D’s conduct is intentional or reckless. (multistate) 1. Ex: D was driving his car 90mph and he hits a little girl crossing the street, coming home from school. The little girl’s mother witnessed the accident, became emotionally distraught. Is recovery allowed? a. Incorrect answer – D acted intentionally
5 b. Here, the D’s conduct was reckless (driving 90 mph is reckless). c. We allow recovery for this tort where the D, intentionally or recklessly, has acted. ** vii. Separate tort: 1. Negligent infliction of emotional distress. a. All of the requirements of negligence must be present. i. Duty of care owed. ii. P must be a foreseeable P, within the zone of danger. iii. D’s conduct does not have to be as extreme or outrageous for intentional or reckless infliction of emotional distress, but the D’s conduct must be negligent. e. Conversion- more serious tort i. Conversion – where the D intentionally exercises dominion and control over the chattel of another. It involves a substantial interference with P’s ownership rights. ii. Common law: 1. D was liable for the full value of the chattel because a forced sale was required. 2. Ex: Bob just bought a new Corvette for $55,000 and parked his new car outside of his home. Johnny is walking down the street and sees Bob’s new Corvette. Johnny decides to hotwire it and without Bob’s permission, he drives the car from LA to San Francisco to visit his girlfriend for the weekend and then he drives back later. He returns the car, undamaged, right where he found it, and he even has a full tank of gas for Bob. What tort has Johnny committed? a. Bob has been deprived of the vehicle for the weekend. b. This is a serious interference with Bob’s rights – a conversion. c. Measurable damages (multistate): i. Diminished value of the car for the nonuse for the 3 days ii. $55,000 – price of the car 1. Correct answer, even if the car was undamaged. At common law: P entitled to full value of the car and then there would be a forced sale of the chattel at common law. iii. No damages because the car was not damaged iv. Nominal damages
6 iii. Ex: You loan your car to your assistant to drive to the supermarket. He violates the terms of the bailment. The D bailee can be held liable for conversion there. 1. Where the bailee exceeds authorized use of chattel and it constitutes a serious bailment, conversion can occur here. iv. Mistake is no defense. v. Examples: 1. Ex: If you’re at a restaurant and by mistake you take someone else’s hat off of the coat rack – it looked the same color, same style, etc., and you walk outside and a strong wind gust blows and the hat gets in the gutter, then you are liable for conversion b/c mistake is no defense and you took the hat intentionally off that coat rack. 2. Ex: A leaving the restaurant, leaves the restaurant, grabs the hat and thinks that it’s his, but he soon sees that it isn’t his, and he goes back and returns the hat to the rack. It’s no conversion. But if it’s 3 months, a conversion. 3. Ex: A stores B’s car in his garage. A delays 30 minutes in giving B entry to the garage. No conversion. But, delay of 1 month – this is a conversion. Or, if during the delay of 30 minutes, a fire breaks out and the car is destroyed before it can be removed, this is conversion. 4. Ex: A intentionally shoots B’s horse. This is a conversion. 5. Ex: A intentionally shoots B’s horse. And the horse is just scratched and recovers. This is trespass to chattel, not conversion. 6. Ex: You’re riding the horse and someone whips the horse or shoots the horse. Then you can recover for battery. The horse is an extension of the rider. 7. Ex: A entrusts the auto to B, a car dealer. On one occasion, B draws the car for 10 miles or home one evening – this is not a conversion. Where A entrusts the auto to B, but where B drives the car for 1,000 miles, this would be a conversion. 8. Trespass vs. conversion matter of degree a. Have to determine seriousness of interference b. Factors: i. Extent and duration of the D’s dominion over the chattel. The longer the extent of dominion, the more likely it will be a conversion. ii. Whether the D is acting in good faith. iii. The harm that is done to the chattel. 1. The more serious the damage to the chattel, the more likely it will be a conversion.
7 f. Trespass to chattels i. Where the D intentionally intermeddles or slightly damages the chattel of another. ii. Mistake is no defense. iii. Damages: Liable for the diminished value of the chattel. 1. Ex: cost to repaint if the paint is scratched off or diminished value. iv. The seriousness of the intereference determines the tort. v. The more substantial the damage, the more substantial the interference with P’s ownership rights, the more likely there is conversion. vi. Slight interference trespass to chattel. Major interference conversion. vii. Multistate: damages recoverable for each of the torts. 1. Trespass to chattel – he or she is liable for the diminished value of the chattel. a. Ex: If Johnny is walking down the street with a pen knife and he scratches the paint off of the neighbor’s car door, this is a trespass to chattel. D is liable for cost of repainting the door. 2. Conversion – where the D intentionally exercises dominion and control over the chattel of another. It involves a substantial interference with P’s ownership rights. 3. g. Trespass to lands i. Can be either an intentional tort or can cover negligent or reckless entries as well ii. Person is subject to liability for trespass where he/she intentionally enters the land of another or casts a thing or a third person to enter the land of another without permission. iii. Mistake as to ownership is no defense. 1. Ex: If you’re drunk, you’re at a bar, you’ve been drinking all night with your buddies and you live in a tract housing complex where all of the homes look alike. You enter your neighbor’s front door and you walk in the living room, you’re liable for trespass. iv. Unlawful entries on the land, above the land, or beneath the surface of the land. 1. Lord Coke 2. Ex: A is on his property. B has neighboring land. C has property and lives 100 yards away. A takes his gun and fires a bullet a B, who is standing in his backyard, next door. The bullet travels over B’s land and lies on C’s property. A is liable to B and C for trespass. ** v. Historically, trespass required entry of some physical, tangible object.
8 1. Modern decisions have held that trespass liability extends to intrusions caused by microscopic parties (smoke, dust or invisible gas). a. These are tangible objects. vi. Subterranean trespass: 1. Trespass under the surface of the land. 2. Ex: If you’re drilling for land or minerals; when you conduct mining operations, you drill underneath your neighbor’s property, you can be held liable for the subterranean trespass, where your drilling operations extend under the land of your neighbor’s property. vii. Privileged entries involving public and private necessity (multistate) 1. No liability exists for trespass where you have privileged entries involving public or private necessity. 2. Private necessity: Airplane flying overhead and experiences mechanical difficulties; he’s forced to take an emergency landing, ends up on Farmer Jones’ farm and he destroys the corn crop when he lands on the corn crap. This is private necessity; no liability for trespass. The pilot is however liable for actual damages - -for the corn crops. a. Airplane making an emergency landing – private necessity for public policy purposes. We require the airline company to make restitution. The airline would be liable for the physical damage that occurred. 3. Public necessity: Absolute privilege. There is no trespass liability and no liability for damage to the land. viii. Above intentional trespass. ix. Where you have a negligent or reckless entry, there is no liability for trespass unless damage is caused to the property. 1. Ex: Guy is going mph and he ends up on your front lawn. No liability unless he causes damage to structures on the property, your land, garden, etc. x. Accidental entries: 1. Prosser – no liability for accidental entries that are nonnegligent and unintentional. 2. Ex: 18-year old guy is playing golf and hits the golfball down the middle of the fairway and the ball hits a tree limb and ricochets on to Edward’s property. Accidental entry, non-negligent, therefore no trespass. ** h. 2 types of intent: i. Specific intent 1. Where the D acts intending to cause the consequences of his or her act. ii. General intent
9 1. Where there is a substantial certainty that the D’s conduct will result in the commission of a tortious act. 2. D does not specifically intend to commit the tortious act. 3. Ex: Mets and Yankees are playing in the World Series. Shay Stadium, the hole of the NY Mets, is filled to capacity – 60,000 Met fans; there’s a section of Mets fans; Yank fans say “Let’s go Yanks.” Mets fan throws beer in the Yank fans section and it hits this guy’s face. The fan is liable b/c there is substantial certainty that one of the fans would have gotten hit by the beer. Therefore, the fan would be liable under the substantial certainty test. Liable for battery. iii. Transferred intent 1. Where the D intends tortious conduct against one party, but the resulting harm is caused upon another. 2. A throws a rock intending to hit B; B ducks and the rock hits C; A would be liable to C for battery. 3. Generally applies only: a. Assault b. Battery c. False imprisonment d. Trespass to land e. Trespass to chattel iv. Minors and incompetents (moron, imbecile) are held liable for the commission of intentional torts. 1. Ex: Johnny throws a rock and it hits his friend. He’s liable for battery. Johnny is 7. II. Defenses to intentional torts a. Privilege: general term applied to various defenses which justify conduct which would otherwise be tortious. b. Mistake is privileged as a general rule will be a defense where the D acts quickly to protect either his own personal interest or acts in furtherance of a public interest. i. Where mistake is a defense: 1. Where a person reasonably believes he or she is being attacked; he or she may injure another even though he was mistaken – as long as he had a reasonable defense. 2. Where a police officer is privileged to make an arrest even though he mistakenly believes a felony has been committed. a. He must reasonably believe person committed the crime. b. He must reasonably believe the crime has been committed. ii. Mistake is no defense to trespass; mistake is no defense to battery where a man approaches a woman from behind, puts an arm
10 around the woman’s waist – the man believes the woman is his wife – and then he kisses her on her lips – the woman isn’t the wife of the man – here, mistake is no defense to battery – mistake is no defense here to battery. iii. Mistake may be a defense for self-defense or assault by a police officer. iv. Mistake is no defense for conversion, trespass to chattel. c. Consent i. Consent: Willingness that an act or an invasion takes place. ii. Volentia nonfit injuria: To one who is willing, no wrong is done. 1. As long as you willingly consent to the tortious act, you can no longer complaint for the wrong that has occurred. 2. Consent can be express consent or implied consent. a. Express consent – fistfight and you say to your opponent: put up your dukes. There, you cannot recover for battery b/c you expressly engaged in fistcuffs. b. Implied consent – a boyfriend & girlfriend are out on a date. A girl makes no protest at a proposal to kiss her in the moonlight. Implied consent also where consent is implied by law in an emergency medical situation where someone who is in an auto accident and is unconscious, doctor performs some surgery – consent here is implied by law. c. Consent is invalid where incapacity exists, such as where a person is intoxicated. i. Ex: We have a frat party and this guy at the frat party – his girlfriend becomes intoxicated… He takes her up to the bedroom and engages in sexual intercourse. He is liable for battery b/c consent is invalid due to the girlfriend’s intoxication. d. Scope of consent: i. Ex: You consent to a fistfight, but you don’t consent to a fight with brass knuckles. The guy uses these and he breaks your nose. The guy is liable for battery. e. Fraud may negate mistake i. Ex: P consents to eat chocolate, but doesn’t know it’s poisoned. There is obviously no consent here. ii. Ex: AIDS cases. Someone knows he or she is infected with the disease and engages in intercourse with another and transmits the disease, then the carrier D may be held for battery. Or, in the Rock Hudson case, D is
11 held liable for intentional infliction of emotional distress b/c the D’s conduct here is outrageous. d. Self-defense: i. Person has reasonable grounds to believe he’s going to be attacked, person may use reasonable force in his or her own self-defense – may use force as reasonably necessary against the potential injury. ii. Deadly force is generally not permitted unless you are threatened with serious bodily injury or death. ** 1. Ex: Someone attacks you with a knife or gun, then you can blow away your assailant. 2. Same rule in tort law & criminal law no duty to retreat. Negligence Strict Liability a. Ultrahazardous / abnormally dangerous activities b. Wild animals i. Ex: If you’re the owner or keeper of a wild animal or an inherently dangerous animal and that animal injures someone else c. Products liability i. Sec. 402A, Restatement of Torts ii. One who sells a product in a defective condition, unreasonably dangerous to the user or consumer is held strictly liable for the person harmed by that product. Defamation a. Libel i. Written defamation b. Slander i. Spoken defamation Nuisance – the thing complained of (the dog barking all night) or the DuPont factory emitting noxious toxic fumes – where the nuisance causes a substantial and unreasonable interference with one’s use and enjoyment of the property. a. Public nuisance b. Private nuisance
12 PMBR CD #2 Defenses to intentional torts I. Defense of others a. Person is privileged to use reasonable force for himself or to another. b. Minority: i. Alter-ego rule: 1. Intermeddler assumes the risk that the person he or she is defending would not be privileged in defending himself or herself. 2. Ex: A is the aggressor and punches B. And then, B is on top of A. In an alter-ego situation, you’d be liable to B; B was privileged to use reasonable force and you bear the risk that the person you’re attacking was not privileged to defend himself in that same manner. Defense of property a. Not allowed to use deadly force in the defense of property that is likely to seriously injure a trespasser b. Only privileged to use reasonable force in the defense of property, not intended to cause death or serious bodily injury Recapture of chattels a. Reasonable force is allowed for recapture of chattels (majority rule) b. Ex: Dog or balloon has fallen into your neighbor’s backyard, you can enter your neighbor’s backyard to retrieve it. c. As a general rule, before entering the land of another, a demand must be made before you’re allowed to enter the property of another. d. If the person to whom you make a demand refuses to allow you to enter the property, generally speaking reasonable force is permitted. e. Minority rule: i. Have to determine if person in possession of your chattel has wrongfully taken your chattel. ii. Where you make a demand for the return of your chattel and the person has wrongfully taken your chattel, you may use reasonable force against the person (the wrongdoer). iii. But, if the person has not wrongfully acquired possession of your chattel, then only peaceful means are allowed to retake it. 1. You cannot use reasonable force here. 2. Ex: Your dog has strayed on to your neighbor’s property or your balloon has strayed on to your neighbor’s property. a. Your neighbor has done nothing wrong to come into possession of your chattel. Necessity a. 2 types of necessity: i. Public necessity
13 1. Absolute privilege and no recovery is allowed for either the damage to the chattel or even for the trespass where you’re entering into someone’s property to avert a disaster. 2. Ex: A person shoots a dog infected with rabies (a rabid dog) who is posing a threat to the community and then you shoot and kill the rabid dog – acting to avert a public disaster – not liable for damage for killing of the dog ** ii. Private necessity 1. Privilege is more necessity. 2. Even though the D is not liable for trespass, he or she can still be held liable for the damage to the P’s property. 3. Ex: Farmer Jones; airplane makes emergency landing – private necessity – partial necessity – the D can be held liable for the damage. Arrest without a warrant a. Private citizen b. Police officer c. 2 types of crimes where you are making an arrest: i. Arresting without a warrant for a misdemeanor 1. Same rule applies for private citizens and police officers 2. Arrest without a warrant is privileged for a misdemeanor, but the misdemeanor must be a breach of the peace and must be committed in the party’s presence. ** ii. Arresting without a warrant for a felony 1. Private citizen arrest without a warrant is privileged if: 1) felony must in fact have been committed – if it did not occur and you’re a private citizen and you arrest someone for a felony, you’re liable for false arrest, false imprisonment, and battery and you bear the risk; 2) D must have reasonable grounds for believing that the person arrested has committed the crime. a. If either of these two requirements are lacking, then liability will result for the false arrest. 2. Police officer police officer has reasonable grounds for believing that the felony has in fact been committed and reasonable grounds for believing that the person arrested actually committed it. Discipline a. Parent is allowed to use reasonable force to discipline his child. b. Ex: A father hired 3 12-year old kids to beat up his own son because he felt his son was a wimp and he wanted to toughen his son up. He promised the kids cigarettes, candy, and $5 if he beat up his son. The boys took a baseball bat and broke the son’s legs. The father was then arrested for endangering the son’s life.
14 i. Here, the father would not be privileged to hire other kids to beat up his son and to inflict such serious bodily injury with a baseball bat. c. Teacher disciplining child – force must be reasonable under the circumstances for proper education and training of the child. Defenses against intentional torts a. Privilege b. Mistake c. Consent d. Self-defense e. Defense of others f. Defense of property g. Recapture of chattels h. Necessity i. Arrest without a warrant j. Discipline Negligence a. Prima facie: i. Duty of care 1. D must owe a duty of care to the P 2. D must conform to some specific conduct to protect the P against some risk of injury 3. General duty of care: Person is under a legal duty to act as an ordinary, reasonable prudent person. It is presumed that an ordinary, reasonable prudent person will take precautions against creating unreasonable risk of injury to others. a. No duty is imposed upon a person for events or risks that could not be reasonable foreseen. ** ii. Breach of duty iii. Proximate legal cause 1. D’s conduct must be the proximate legal cause of the P’s harm or injury iv. Damage to P’s person or property b. To whom a duty of care is owed: i. Duty of care is owed to foreseeable plaintiffs. 1. Paltzgraff: Situation where a passenger was boarding a train and he had a suitcase containing some fireworks. The conductor said to the passenger: can I assist you with the package? The conductor took the package, negligently dropped it, caused an explosion, and 150 feet down the platform, it caused a large scale to fall on top of Mrs. Platzgraff, injuring her; she sued the RR company. J. Cardozo: only a duty of care was owed to foreseeable plaintiffs within the zone of danger It was unforeseeable that she would be injured within such a manner; no
15 recovery was allowed. Held: There is only a duty of care owed to foreseeable plaintiffs within the zone of plaintiffs. No duty of care are to unforeseeable plaintiffs. a. Dissent: J. Andrews – you owe a duty of care to everyone in the world. i. Not the rule on bar exams. b. Ask: Does the D owe a duty of care to the P? If the P is outside the zone of danger, no duty of care based on the Paltzgraff decision. c. A rescuer is a foreseeable P and a duty of care is owed to him as long as his actions are not reckless or wanton. (multistate.) i. If your conduct is negligent or you place someone else in peril, it’s foreseeable a rescuer would come on to the scene to assist the person imperiled. If the rescuer is injured, the original actor is held liable for the rescuer’s injuries. d. Prenatal injuries: i. Duty of care is owed to the fetus. ii. If a doctor is negligent in his treatment of a pregnant woman and the baby suffers prenatal injuries, we allow recovery as long as the baby is born alive. 1. The fetus must have been viable at the time of injuries. 2. Generally, a child born alive is allowed to recover for prenatal injuries; duty of care owed to the fetus. e. Applicable standards of care: i. We apply a different standard of care to a child than an adult; apply a different standard of care to an innkeeper, a common carrier – can be held liable for slight negligence. ii. Most basic standard – reasonable person standard 1. D’s conduct will be measured against the reasonable, ordinary prudent person. 2. The physical characteristics – reasonable person is considered to have the same physical characteristics as the D. a. A person is expected to know his or her physical handicaps and is under a duty to exercise such care that a person with that knowledge would employ. b. Ex: If you’re blind and you’re required to walk with the aid of a dog (a seeing eye dog) or a cane and because of your poor eyesight or blindness, you fail to use a seeing eyedog or cane, and you’re walking, and you negligently hit someone and injure them or cause damage, you can be held liable for negligence for failing to act reasonably for the protection of others, given your physical handicap. c. Ex: If you’re required to wear eyeglasses because of poor eyesight and you’re operating your car without
16 your eyeglasses and you’re involved in an accident where you failed to see a pedestrian crossing the street, you’ll be negligent. You’ll be held liable for not wearing your eyeglasses for the protection of others. D must act as a person of average mental ability. 1. Individual mental handicaps are not considered; stupidity is no defense; insanity is no defense. Physical characteristics vs. mental ability: 1. Physical characteristics – reasonable person standard – person is deemed to have the same physical characteristics as the D does. 2. Mental characters – person has to act as the average person would. Professional standard of conduct 1. A person who is a professional with special kids, such as a doctor, a lawyer, is required to possess and exercise the knowledge and skill of a member of the profession with good skill in good standing in similar locality. 2. Specialist who uses special skill or knowledge (periodontist or patent attorney) a. Specialist may be held liable where a general practitioner would not where the specialist holds himself out to have superior judgment skills or knowledge. Standard of care of child 1. Child is required to conform to the standard of care of a child of like age, education, intelligence, and experience. 2. There is no minimum age for capacity to be negligent. a. Generally, however, a child under the age of 4 generally does not have the capacity to be negligent. (common law) i. It is unlikely that the court will impose a legal duty for such a child. b. Modern view: (emerging) i. Many jurisdictions that hold that children, even under 4, could be held liable for negligence. ** 3. When a child is engaged in an adult activity, then the child is required to conform to the same standard of care as an adult (driving an automobile, flying an airplane, operating a motorboat). a. We do not take into account the child’s age or experience in this situation. Standard of conduct for common carriers and innkeepers (hotels, motels)
17 1. These entities / people owe a special duty of care to their passengers / guests. 2. They are liable for slight negligence for their own conduct as the owners (offensive or slightly negligent) or vicariously by their employees’ conduct. 3. Required to exercise a very high degree of care. 4. Can be held liable even for slight negligence. viii. Standard of care that an automobile driver owes to its passengers or guests. 1. Common law: the automobile passenger is treated as a licensee. a. The driver is under a duty to warn the passenger or the guest in his auto of known defects which the driver knows of or is aware of. b. Common law: Duty to operate the automobile in a reasonable manner and duty to warn the passenger of known defects which the driver is aware of. i. But, most states have enacted guest statutes (e.g., MA – first state – 1907) – where you have a state that has enacted a guest statute, then the driver’s only duty is to refrain from gross or wanton or reckless misconduct. Typical guest act state – where the driver is ordinarily negligent and causes injury to the passenger, therefore, no recovery is allowed. ** ix. Duty of care owed by possessors of land for people that are trespassers, invitees, licensees, for people that enter the property. (multistate) ** 1. Duty of care to trespasser: a. Generally, owner owes no duty of care to a trespasser. b. 2 types of trespassers: i. Discovered trespassers – the owner knows that trespasser is likely or known to come on to the property – there is a duty to warn the trespasser of known dangerous conditions that exist on the property **. 1. No duty to warn trespassers of obvious natural conditions on the land. 2. Ex: You own a farm – 200 acres and you own a large lake on the farm; no duty to put up a sign for trespassers “trespassers, beware of lake.”
18 ii. Undiscovered or unanticipated trespassers – the owner has no reason to know that the trespasser is likely to come on to the property – here, no duty of care is owed. x. Invitee 1. Type #1: Customer in a store 2. Type #2: Public invitees a. Certain buildings are open to members of the public b. Entering public facilities or public buildings i. Ex: Entering into a church, airport, museum, public rest areas off the side of the area. c. Duty of care to inspect the premises and make safe for invitees that enter. 3. If you enter a supermarket or business to get change for a $1 even though you don’t confer any economic benefit on the business establishment, you are still an invitee. a. This is true even though you’re browsing, you don’t buy anything, don’t confer an economic benefit, etc. (multistate) xi. Licensee 1. Ex: Person invited to the Superbowl, a party, etc. 2. Ex: Jones invites Able to the property; Able is injured on the land. i. What duty is owed? 1. Where a person has permission to enter on the land of another (being a guest at the party), then the entrant is viewed as a licensee. a. Duty of care: Warn the licensee of dangerous conditions on the property. i. There is no duty to inspect. ii. There is no duty to make safe. IX. Bailments a. Gratuitous bailment i. You loan your car to your friend to drive to a supermarket. What duty of care does the bailor owe to a bailee in a gratuitous bailment? 1. Duty of care is similar to that owed to a licensee – the bailor (owner of the vehicle) is under a duty to warn the bailee of known defects that exist with respect to the chattel or automobile. b. Bailment for hire
19 i. Bailor owes a duty to inspect the chattel (higher duty of care) and to make the chattel safe for the protection of the bailee. 1. Bailee is paying money to the bailor for the chattel. ** 2. Similar to duty of care to invitee (duty of care to inspect and make safe for invitee). c. Duty of care of bailee to bailor: i. Duty to exercise reasonable care or ordinary care in the operation of the motor vehicle or any other chattel that is being loaned out for the benefit of the bailee. Attractive nuisance doctrine a. Trespassing children doctrine b. Where child has trespassed and is injured by artificial conditions on the land ,we allow recovery: i. There must be an artificial, dangerous condition on the land. ii. We allow recovery against the possessor or owner of the land. 1. If you’re renting property, the same duties / liabilities exist to you as the renter as the owner who is actually owning the property. 2. Renter is the person in possession – may be held liable. iii. Possessor knows or is likely to know that children are likely to trespass on the property. iv. The child because of his or her youth, age, or immaturity fails to appreciate the danger or realize the risks involved in intermeddling with it. v. Utility of maintaining the dangerous condition on the land is slight compared to the risks involved. 1. Balancing the test. 2. Balancing the equity. 3. Where the risk of harm to the child outweighs the utility. c. Attractive nuisance doctrine is a subjective standard (not an objective standard, as in negligence cases). i. Ask if the child was subjectively aware of the danger. ii. If the child was unaware of the danger, we will allow recovery. Public employees a. Where a fireman or policeman come on to your property and the public employee is injured, in connection with business transacted on the premises by the occupier, then the public employee is invariably treated as an invitee. i. City meter readers, postmen, garbage collectors, building inspectors are invitees. ii. Firemen and policemen have been held to be licensees. Liability of lessors of land a. Lessor of land is not subject to liability to his lessee (tenant or others entering on to the land) after the tenant takes possession of the property. i. 2 exceptions where the lessor may be held liable:
20 1. Landlord is under a duty to maintain common passageways in a safe condition. 2. Where, at the commencement of the lease, there is an existing dangerous condition or a hidden trap that exists on the property and the landlord is aware of it and it is not likely to be discovered by his tenant, then the landlord can be held liable for existing hidden trap or dangerous conditions in existence at the time of the lease. Omissions to act (failure to act) a. Generally, a person is under no legal duty to render assistance to a stranger in peril. i. Same rule in criminal law as in tort law. ii. Ex: If you walk out of class today and you see an auto accident and a boy is thrown 500 feet in the air, his legs are broken and he’s bleeding to death, you don’t have to render aid to him. You’re under no legal duty to render assistance because you’re not responsible for causing the injury. b. Exceptions: Legal duty to act i. May be based on family relationship 1. Ex: You’re studying for the bar and you have a 4-year old daughter, Nichole. The mother is out in her backyard. It’s a very warm summer day. The mother is studying for the bar exam and is doing bar exam questions in the backyard. The mother comes into the backyard and her daughter says that her Barbie’s head broke off. As the 4-year old is running towards the mother, she trips and flops into the swimming pool and she’s drowning and calls out to her mother. The mother says to the daughter: shut up, I’m doing my PMBR questions. a. Here, the mother can be held criminally liable – guilty of involuntary manslaughter. b. Tort duty of care here ii. Contract 1. Ex: Lifeguard is 23-yeards old and does this over the summer. A lifeguard is hired to rescue swimmers that are in peril of drowning . Where the lifeguard fails to rescue a swimmer, then the lifeguard or the city can be held liable for wrongful death and also for criminal liability, where there is a death resulting from the lifeguard’s failure to rescue. iii. Statute 1. Ex: Hit and run statutes enacted by a few statutes. Failure to stop and help person injured by accident. iv. Voluntary assumption of care 1. Generally, no legal duty to assist a stranger. But, if you voluntarily assume a duty of care, you can’t put the victim
21 in a more perilous situation than when you found him. Ex: You’re walking down the street, person was involved in an auto accident and his legs were broken, and you pick the injured person up, you start carrying him to a hospital, he weighs 200 pounds and after carrying him for a mile, you place him down and says, sorry, I can’t carry you, I’m going to get a hernia here. You place him on the train tracks. Because of his broken legs, he can’t extricate the danger. You can be held here liable civilly and criminally. Where you voluntarily assume the care, you have to follow through with your rescue operations and you cannot leave the victim in a more perilous situation than where you found him. v. Creation of peril 1. If you create the perilous condition, you can be held criminally or civilly liable for the injuries you create for the victim. c. Good Samaritan statute i. Licensed doctors, nurses, who voluntarily render emergency statute are exempt from ordinary negligence. (number of states have enacted this) ii. But, liability still exists for gross negligence or reckless conduct which cause injury to the patient. Breach of duty in Negligence a. Breach i. Look to see events leading up to P’s injury. 1. It must be shown what in fact happened. ii. It must be shown from the facts that the D acted unreasonably. iii. Multistate: 1. Violation of statute – negligence per se a. Have to show: i. The statute must be designed to protect against that type of injury from occurring. ii. The plaintiff must be a member of the class of individuals sought to be protected by the statute. 2. Res ipsa loquitur (inference of negligence) a. Have to show: i. The statute must be designed to protect against that type of injury from occurring. ii. The plaintiff must be a member of the class of individuals sought to be protected by the statute. b. Means the thing speaks for itself. i. Inference of negligence c. Prima facie case:
22 i. P must show that the accident causing his injury was not the type to occur unless someone was negligent. ii. The negligence was attributable to the D and the D was responsible for causing the accident which resulted in P’s injury. d. Negligently manufacturing case – where manufacturer has negligently sold the product and then the negligent manufacturer sells the product to the consumer and then the consumer sues the manufacturer under a theory of negligent manufacturing. We can show that the manufacturer was negligent even though the instrumentality was no longer in control of the instrumentality as long as we can show that the manufacturer was responsible for the defect which called the injury. i. Ex: you buy a bottle of Coca-Cola from Von’s. You put the coca cola bottle down on the table and you open it and it explodes and blinds you. You want to sue Coca Cola bottling company for negligent manufacturing. We can establish a prima facie case for res ipsa loquitur: that type of injury does not normally occur because of someone’s negligence and the manufacturer was not in exclusive control at the time of the accident…Coca Cola had already sold the bottle for res ipsa loquitor. 3. Multistate: a. Statute prohibiting sale of alcoholic beverages on Sunday. Blue law. Storekeeper sold whiskey to someone on Sunday in violation of the statute. Someone that bought the liquor got intoxicated and he crashed into someone. Q: Was the D liable? i. No, if the purpose of the statute was to aid in the observance in the statute. (correct answer) 1. In order to be liable for negligence per se, the statute had to protect against that. Statute had to protect drunk drivers from being in accidents on Sunday morning. But, the law was directed rather at observing the Sabbath. 2. Just because someone violates a statute, it does not mean necessarily
23 that you have negligence per se involved. ii. Yes, recover for negligence per se because the liquor was sold on Sunday in violation of the blue law. (incorrect answer)
24 PMBR CD #3 A. Negligent manufacturing cases – res ipsa loquitor a. Exclusive control is one way of showing responsibility for the accident, but it’s not the only way. b. Rarely will the manufacturer be in control of the instrumentality at the time of the accident. c. Res ipsa: i. Anytime you can establish a prima facie case for res ipsa loquitor, no directed verdict will be granted for the D. (multistate) 1. Why? Because there is an inference of negligence. 2. We’re going to allow the jury to determine if the D is liable for negligence. B. Multistate a. Directed verdicts b. Burdens of proof c. Judgments notwithstanding the verdict C. Negligence – prima facie case a. Duty b. Breach of duty c. Causation i. Cause in fact 1. What is the factual or actual cause of the accident or the injury. a. States employ different tests for causation in fact: i. But for / sine qua non (but for D had not engaged in this conduct, P would not have been injured). ii. Actual cause – what was the actual cause of P’s injury? iii. Direct causation test – what was the direct cause of P’s injury? iv. Substantial factor test – was the D’s conduct a substantial factor in causing P’s injury? 2. But if cause in fact is found with respect to the D, there must be legal causation as well in order for the D to be liable. ii. Proximate or legal causation (limitation of liability as to persons and as to consequences) 1. Restatement: You should, in hindsight, look back at the chain of events and ask yourself whether the D should be held legally responsible for his actions and for the P’s injury.
25 a. As a policy judgment decision, should the D be held legally responsible for the injuries that has caused the P to suffer? 2. Limitations: a. Was the P a foreseeable plaintiff? i. Cardozo view b. Was there a foreseeability of harm or injury? 3. If the D’s conduct was a substantial factor in bringing about harm to P, generally the foreseeability of harm is satisfied and you have liability. iii. Ex: 1. The D’s conduct is a cause in fact, but not a legal cause of P’s injury. You have recently passed the CA bar exam and you’ve been hired as a new associate with the law firm of Sidley & Austin. They have an office in downtown LA. It’s your first day on the job and you’re driving down the Santa Monica freeway when you run out of gas. It’s 8AM and you run out of gas. You worry about making a bad impression, being late, etc. You run over to the gas station, give the attendant $2, you get a metal container of gas, you run back to the car…you’re pouring the gas in the gas tank and you’re negligently spilling the gas on the roadway. You don’t have a spigot and you’re pouring the gas the best you can. You get a gallon in the tank and a quarter gallon spills on the roadway and you figure you have enough gas to get downtown to the office. You then hop in your car and you drive to the law office. You’re there at 9AM when the workday starts. It’s now 11AM in the morning. A couple days later, you’re in a conference. a. Going back to where you ran out of gas, you have a pedestrian walking down the street smoking a cigarette and he flips the cigarette on to the road and you have a bicyclist nearby. The lighted end of the cigarette ignites the gasoline, causes an explosion and the person on the bike is serious burned. i. Q: What is the factual cause of the accident? 1. The pedestrian flipping his cigarette out on to the street and then the cigarette igniting the gasoline, causing the explosion. ii. Q: Who should be legally responsible for the proximate cause for the harm suffered by the P? 1. Looking back in time, we then say to ourselves that it was your conduct – you were the one that negligently
26 spilled the gas in the street. Your conduct is the legal proximate cause of the accident and therefore you will be held legally responsible for the injuries suffered by the bicyclist. Anytime you find someone’s conduct to be the proximate cause of P’s injury, it will also be a cause in fact as well under the but for test. ** iii. Here, pedestrian’s conduct is the cause in fact, but he’s not negligent, not held legally liable for damages suffered by P. iv. The law associate who negligently caused the dangerous condition, his conduct is the proximate cause of the P’s injuries; therefore, the cause in fact (but for cause) is the law associate. ** iv. Multiple causation 1. Summers v. Tys: Where an injury is caused by the negligence of 2 or more persons and the P cannot tell which one called the harm, the burden of proof is shifted to the D so that D must show that he or she did not cause the harm; and, absent such a showing, the D will be held liable. v. Concurrent tortfeasors 1. Where D1 and D2, where their tortious conduct, concur – come together, and both are causes of injury to the P, and you have an indivisible injury incapable of apportionment, each tortfeasor is held jointly and severally liable for the damages. a. Distinguish with case where D1 stabs P in the arm and D2 shoots P with a gun. Here, we have combined tortious acts by D1 and D2, but the P suffers divisible injuries capable of apportionment, so D1 will only be liable for the stab wound and D2 would only be liable for the gunshot wound. b. The key to look for is whether the P suffers an indivisible injury or a divisible injury i. Indivisible: D1 and D2 are held jointly and severally liable for the damages. ii. Divisible: Each tortfeasor is held liable for the portion of conduct for the harm suffered. vi. Intervening causes (always on multistate) 1. Intervening force (cause) is one which operates in producing harm or injury to the P after the original
27 (antecedent / prior) tortfeasor’s act or omission has been committed by the D. a. Question: Whether or not the original D should be liable for the aggravated or new injury suffered by the P that result from the intervening cause. b. Rule of thumb: What we have here is X is the original tortfeasor. X’s negligence causes Y to be injured or damaged. After Y is injured or damaged as a result of X’s original tortious acts, then subsequent in time, we have an intervening force that comes into play that causes Y to suffer additional injuries. c. Ex: You negligently operate your motor vehicle. Y is taken to the emergency room. At the hospital, a doctor negligently treats Y and Y treats new injuries (such as an infection). Q: Is X, the original tortfeasor, liable for the new, aggravated injury that he suffers at the hospital? i. A: Ask: Is the intervening cause foreseeable or unforeseeable? 1. If the intervening cause is forseeeable, then the original tortfeasor X remains liable for the added injuries or aggravated injuries that occur. Prosser says that it’s foreseeable that a doctor or nurse would be negligent in the care of a person when he or she renders treatment or care. 2. If the intervening cause is unforseeable, an unforeseeable intervening cause is called a superseding cause – this breaks the chain of cause, relieving the original tortfeasor of any further tort liability. The original tortfeasor is liable for the injuries or the damage suffered by the P based on his original tortious act. a. Examples of superseding cause that break the chain of causation: i. Acts of god (these do constitute a superseding cause in negligence cause of
28 actions; but when we’re dealing with strict liability – multistate – question dealing with whether an act of god would relieve the D of strict liability where the D was engaged in an abnormally dangerous activity; D had a large amount of explosive in his warehouse which was an ultrahazardous activity; one night, there was a rainstorm and lightning struck the building, causing an explosion and a security guard was injured. Q: Was the D liable for the injury to the security guard? One of the answers said: no, b/c lightning was an act of god; correct answer – D was engaged in an ultrahazardous activity – but D would not be liable for negligence **). ii. Criminal acts of third persons iii. Intentional tortious acts of third persons 2. Foreseeable intervening cause: a. Medical Malpractice. (previous example); Original tortfeasor is usually held for the ordinary negligence, but not the gross or reckless negligent conduct of a doctor or nurse. b. Since rescuers are foreseeable, original tortfeasor will be held liable for the ordinary negligence of the rescuer.
29 c. Disease contracted or subsequent injury sustained b/c of impairment of P’s health that results from the original injury is foreseeable caused by D’s tortious conduct. Original tortfeasor will be held liable for the subsequent disease that is suffered by the P. D. Damages – Negligence a. Elements to establish negligence: i. Duty of care ii. Breach of duty iii. Proximate legal causation (distinguished from cause in fact) iv. Damages b. Actual damages must be proven as part of P’s prima facie case in negligence. i. Personal injury and property damages are recoverable. ii. Nominal damages and punitive damages are normally not liable in negligence actions. iii. Always required c. Collateral sources rule: (multistate) i. D is negligent and the D’s negligence causes Y to be injured and then Y suffers $100,000 in damages. Y then receives medical payments from his own insurance company whereby he pays off some of his medical bills from his own insurance. Q: Can Y recover for the full amount of damages from the D, or is the money from his insurance company deducted from his recovery? 1. A: Benefits received or payments received from the P’s own insurance company or employment benefits are viewed as coming from a collateral source and are not deducted from D’s tort liability. If the P suffered $100,00 in injuries, he can recover the full amount from the D and any payments he receives from the insurance or his employer won’t be deducted from the D’s liability. 2. Ex: D’s insurance company paid $25,000 for P’s hospital bills. Q: Did this come from a collateral source? Collateral source rule does not apply to payments from D’s insurance company. These are deducted from D’s insurance company. ** (multistate) d. Ex: A car owner was experiencing problems with his car brakes and took his car to an auto mechanic. Auto mechanic negligently performed the work. Owner of the vehicle picked up his car, driving home, went down a very steep street in SF. As he was approaching an intersection, the light turn red, the motorist applied the brakes, the brakes failed due to the negligent repair work that was performed. The car went through the red light and the motorist had to veer away from the bus and he could not stop the vehicle. As he was driving down the street, the motorist swerved away from hitting the old lady; motorist swerved to miss the boy; the motorist swerved to miss the baby carriage and the woman. About ten near misses.
30 The motorist then pulled his car to the side of the road and he was able to avoid hitting anyone or being involved in any accident. The owner of the vehicle then sued the repair shop for negligence and wanted to recover damages for the faulty repairwork. Q: Whether or not the motorist suffered any damages? A: No. There was no actual damage to the vehicle, no property damage, no accidents occurred. These were simply near misses. As a result, technically speaking, the P would not be entitled to recover damages for negligence b/c no damage occurred either to himself or to the vehicle or to any of those pedestrians. E. Negligence defenses a. Contributory negligence i. Minority of states follow this. ii. Where the P is 1% contributorily negligent; it’s a strict, harsh rule. If the P is 1% contributorily negligent, he is barred from recovery as a matter of law. iii. Very harsh and strict. iv. Exception where we do allow recovery in contributory negligence jurisdictions is the last clear chance doctrine. 1. Where the D had the last clear chance to avoid the accident and failed to do so. (last human wrongdoer rule) b. Comparative negligence i. Because of the harshness of the contributory negligence rule, most states have enacted comparative negligence statutes. ii. In these jurisdictions, we apportion damages based upon the basic degrees of fault between the P and D. 1. This permits a negligent P to prevail, but the damages recoverable are reduced by the % or proportion of his fault. a. Ex: If the P suffers $100,000 in damages and the P is 40% at fault, D is 60% at fault, in this situation, D would be entitled to recover $60,000; his recovery of the $100,000 is reduced by $40,000 – the fault attributable to him. iii. 2 types: 1. Modified a. P’s negligence must not be equal to nor greater than that of the D in order to prevail. i. P’s negligence must be 49% or less for recovery. 2. Pure contributory a. P who has been contributorily negligent; P can recover even where P’s negligence exceeds that of the D. i. If the P is 65% negligent and the D is 35% negligent, we will allow recovery, but P’s
31 recovery will be reduced by % of his or her fault. c. Assumption of risk i. Where the P voluntarily exposes himself or herself to a known risk of harm. ii. Key element is knowledge of the risk. iii. Subjective standard: 1. Where the P subjectively, knowingly, subjected himself to the risk of harm. iv. Ex: You go to the San Diego zoo and a sign says “Do not feed the lions.” You put your hand in the cage with some food and say “Here Kitty Kitty Kitty” and the lion bites off your hand. This is assumption of the harm / assumption of the risk. v. Difference between contributory negligence and assumption of the risk: 1. Contributory negligence is an objective test, it’s where the P’s conduct falls below the standard that a reasonable, objective person would follow in order to protect himself. 2. Assumption of the risk is a subjective standard – where the P knowingly, subjectively subjects himself to a known risk of harm. a. Prosser – essay tip: question dealing with negligence, discuss negligence defenses; discuss contributory negligence, comparative negligence, and assumption of the risk. Oftentimes, contributory negligence and assumption of the risk really come together. i. Ex: The same conduct on the part of the P may amount to both assumption of the risk and contributory negligence. For instance, where P consents to ride with a drunk driver in an unlighted car on a dark night – this falls below the standard that a reasonable person would follow; assumption of risk b/c you subject yourself to the harm. ii. Ex: If you rush into a burning building to save your hat and where you are seriously burned or injured, your conduct here would be contributorily negligent and you’d be assuming the risk of harm. F. Vicarious liability a. Negligence b. Commission of intentional torts c. Liability that is derivatively imposed.
32 i. One person commits a tortious act against someone else and another person will be held vicariously liable to the third person for that conduct or that act. 1. If A commits a tortious act against B, C will be held liable. d. Frequent situations tested on the multistate: i. Doctrine of respondeat superior – a master employer will be held vicariously liable for the tortious acts of his or her employee or servant or agent that occur within the scope of the employment relationship. ii. Generally, an employer is not generally liable for the intentional torts committed by his employee. 1. Exception: (multistate) Where the employee commits the intentional acts in the furtherance of his employer’s business. a. Ex: You have a bouncer at the nightclub who uses force to evict someone from the nightclub. In this situation, the employer can be held vicariously liable b/c the bouncer is committing the intentional torts in furtherance of his employer’s business. b. Ex: Bus driver realizes the passenger didn’t pay the fare; bus driver stops the bus, grabs the nonpaying passenger, grabs him by the collar, throws him off the bus, the person breaks his leg. The bus driver is committing the tortious act in furtherance of his employer’s business and vicarious liability will attach. iii. Independent contractor 1. As a general rule, a person who hires an independent contractor will not be held liable for the tortious acts of the independent contractor. 2. Exceptions: a. The independent contractor is engaged in an ultrahazardous activity (e.g., blasting). b. The independent contractor is performing a nondelegable duty. i. Ex: You hire an excavator to do excavation work and the excavator digs a 10-foot hole next to your home. Excavator can build a fence around the hole so no one is injured and injure themselves. Where the excavator does not big a fence and the child falls in and breaks his leg, you will be held vicariously liable for the excavator b/c he was engaged in a nondelegable duty – the liability can’t be delegated away.
33 iv. Both respondeat superior and independent contractor liability situations, the employer may be negligent for hiring someone who is an alcoholic or is irresponsible and you fail to trace their background and they are drunk on the job and they injure someone, you can be held liable for negligent hiring / selecting of the employee or independent contractor. This is negligence, not vicarious liability. v. Joint venture: 1. Each member of a joint venture is vicariously liable for the tortious conduct of the other members of the joint venture that are committed in the scope and course of the joint venture. 2. Similar to a partnership, but much more limited in time and purpose. 3. Joint venture is generally an undertaking to execute or carry out a small objective. It can exist for example where 2 roommates in law school who attend law school at SUNY Buffalo are driving home to Christmas vacation in NY and they share driving expenses and share driving responsibilities, this is a joint venture – form of limited partnership. Each member of the joint venture is held vicariously liable for the tortious act of another. 4. Automobile-owner-driver situation. Generally, an automobile owner-driver is generally not liable for the tortious conduct of someone else driving the vehicle. a. Most states – family car doctrine – vicarious liability will attach for negligent operation of motor vehicle by family members. b. Some states – permissive use statute – impose liability for anyone driving with consent – where person is driving negligently or tortiously. vi. A parent is not vicariously liable for the conduct of his or her child. (multistate) 1. However, a parent may be held liable for negligence for failing to supervise the child or control the child’s conduct. (always tested) 2. Essay: Mother was shopping with her 7-year daughter and the daughter says to the mother, “Can I push the cart?” She says, ok, but be careful. Girl starts pushing the grocery cart and starts running down the aisle; she slams into another shopper and injures her leg. a. There was no vicarious liability for the battery that occurred on the conduct of the daughter. But, the mother would be held liable for negligence for failing to supervise or control her daughter’s conduct.
34 G. Multiple D issues a. Joint and several liability i. Where two or more negligent acts combine to cause an indivisible injury to the P, each negligent D (D1, D2, D3) is held jointly, severally liable for that injury. ii. Where two or more Ds are acting in concert by agreement to injure the P, then they will be held jointly, severally liable for that entire injury also. b. Contribution and indemnity (always tested) i. Essay: Always 8 or 9 issues. You want to first read your essay question for the first 10 to 12 minutes and then outline. Then you want to transpose those issues to the bluebook. You want to highlight, put in caps, underline, etc. Generally, if you hit all 9 issues, you get a 90, etc. Extra points for analysis. ii. Torts: 1. First, outline the intentional torts: assault, battery, etc. 2. Negligence 3. Assumption of the risk 4. Contributory and indemnity 5. Strict liability, defamation, libel, slander iii. Contribution distributes the loss among the tortfeasors by requiring each to pay his or her proportionate share. iv. Contribution is not allowed in favor of those that commit intentional torts. v. Indemnity shifts the loss from one tortfeasor who has been required to pay to another who should bear the loss instead. vi. Indemnification in two situations: 1. Vicarious liability a. You own an appliance store and you have Jones who is a driver. He drives negligently, he’s involved in an accident and the individual sues you under a respondeat superior theory. You’re held negligent for the negligence of your driver. If judgment is then rendered against you, you can seek indemnification against your employee who is at fault in causing your accident. b. You always have indemnification between the employer and employee in a respondeat superior situation. (you must discuss this on the essay**) 2. Strict products liability a. Campbell’s soup company; office is in Camden, NJ. They are manufacturing a can of tomato soup and metal sliver is embedded in the tomato paste during the manufacture. When Campbell sells that can of soup to Safeway supermarket, the clerk at Safeway
35 makes a reasonable inspection and looks at the soup can. The clerk cannot see the metal sliver inside. b. Safeway sells you the can of soup. You open the can, cook the tomato soup for dinner. You cut your throat on the sliver of metal. Can Safeway be sued for strict liability? i. Yes. Strict liability is imposed on all sellers of defective products: manufacturer, seller, wholesaler, retailer, everyone down the line is held strictly liable – if the hand leaves the seller’s hands in a defective condition. The fact that Safeway made a reasonable inspection means that they are not negligent, but they are strictly liable b/c they sold a defective product. ii. If you sue Safeway and recover damages for strict liability, Safeway can go after Campbell and recover indemnification b/c Campbell’s was at fault for having the metal sliver embedded in the soup can to begin with. H. Survival and Wrongful death a. Survival of tort action i. At common law, the tort action abated (i.e., ended) at the death of either the tortfeasor or the victim. 1. States today have changed this by statute and have enacted survival acts. a. A person’s cause of action will survive where you have a survival act enacted, equally true for torts to property and torts resulting in personal injury. 2. In most states, torts which invade an intangible personal interest (defamation, invasion of right to privacy), they do abate or expire upon the victim’s death. a. They are so personal, that they expire upon the victim’s death.
36 PMBR CD #4: I. Wrongful death a. Personal representative, surviving spouse, or next of kin may bring the action. b. Measure of recovery and wrongful death is for the pecuniary injury resulting from spouse and next of kin – loss of support and loss of consortium. c. Ex: O.J. trial. Even though O.J. was acquitted in the criminal case, he is still being sued in the civil actions by the Goldman family and by the Brown family for wrongful death and double jeopardy does not attach b/c civil cases are separate and distinct from criminal cases. i. Even though O.J. was acquitted for the murder charge, he could still be held liable for the wrongful death action. ii. Lesser burden is required in the civil case – preponderance of the evidence; standard of proof is higher in a criminal case – beyond a reasonable doubt. Strict liability a. Abnormally dangerous activities / ultrahazardous activities i. A person who carries on an abnormally dangerous activity is subject to strict liability for the harm or injury that results even though the D has exercised utmost care. 1. We allow recovery for injury or damage that results. ii. Ultrahazardous / abnormally dangerous activities: (Prosser) 1. Storage of explosives or flammable liquids 2. Blasting operations with dynamite 3. Crop dusting with dangerous chemicals, pesticides, insecticides 4. Fumigation of a building using cyanide gas. 5. Drilling oil wells in thickly settled communities. 6. Fireworks are no longer an abnormally dangerous activity. ** (multistate) a. Fireworks are not viewed, where we have a fireworks display at 4th of July, they are so commonplace in society today, they are no longer regarded as ultrahazardous. In order to recover where a firework misfires and injures the P, it’s a negligent standard, not strict liability today. b. Wild animals i. If you are the owner or keeper of a wild animal or the owner or keeper of an inherently dangerous species, and that animal hurts someone, strict liability recovery is allowed. ii. Ex: Jones is the owner of a pet lion and the lion is domesticated and declawed (or the leopard is defanged or the bear is declared or you extract the venom from a snake); snakes, lions,
37 leopards, sharks are wild animals – where they directly injure the P, we allow strict liability. iii. Ex: Passenger on an airplane. (multistate) The passenger has a cage. In the cage, he transports his pet snake on the plane. The snake has been defanged; the owner gave the snake an enema so that the snake doesn’t poop on the airplane, the plane takes off and the owner of the snake negligently leaves the cage open (red herring). The snake is slithering down the aisle and you’re the passenger and you see the snake coming after you. You start running away and trip and fall and break your ankle and you bring a tort action against the owner of the snake. 1. Negligence 2. Strict liability a. Correct answer. b. Snake is a wild animal and we impose strict liability. c. Snake does not have to directly cause the injury – recovery is allowed where the snake directly or indirectly causes the injury. d. Restatement anytime you are fleeing from a wild animal (i.e., lion or leopard), and you trip, fall, and break your arm, leg, etc., then recovery is allowed because this is an indirect injury, attributable to the dangerous propensity of the animal. e. Ex: Baker owns a pet shark and keeps it in the pool in his backyard. Baker is having a party and he’s inviting friends over. In the pool, the Shark’s name is Shark the Tark or Tark the Shark. All of the guests are standing around the pool, drinking the cocktail, nibbling on their cheese and crackers. No one is swimming. Carol bought a new white cotton dress for the party and she is standing along the poolside when Tark the Shark comes by her side and water splashes all over her dress and ruins her dress. Carol sues Baker for damage to her dress. Is Baker strictly liable? i. No. Liability only goes to something relating to the dangerous nature of the shark. Dangerous propensity does not mean splashing water on Carol. But, where you are fleeing from a wild animal and you trip and injure yourself, that injury is directly related to the dangerous propensities of the animal. 3. No recovery because the snake did not directly attack you.
38 c. Domestic animals i. Dogs ii. Cats iii. Rats iv. Horses v. Cows vi. Mules vii. One bite rule viii. Owner is not strictly liable for injuries caused by domestic animal, unless the owner has scienter (knowledge) about the animal’s dangerous propensities. ix. Some states, like Utah, have done away with the one bite rule and do impose strict liability, even for injuries caused by domestic injuries. d. Products liability (multistate) i. Restatement of 2nd – Sec. 402A 1. One who sells a product in a defective condition unreasonably dangerous to the user or consumer will be held strictly liable for the harm or injury that caused the user or consumer by that defective product. ii. Strict liability is imposed on all sellers engaged in the sale: manufacturer, distributor, wholesaler, retailer – everyone engaged in business of sale are held strictly liable for the defective product as long as it left the manufacturer’s hands defective. iii. Ex: If a mother is baking cookies for her son’s little league team and she uses impure father or some impure product in the baking and you buy the cookies and you are ill, you cannot get strict liability because the mother is not engaged in the business of baking cookies. iv. Misuse, where the misuse is foreseeable, is not a defense in strict liability. v. The use of disclaimers will not avert strict liability (i.e., automobile manufacturer that sends a disclaimer or some notice of defect). vi. Failure to warn or give adequate directions involving a product may be grounds for strict liability, even if the product is not defective. ** 1. Ex: (multistate) A woman purchased shampoo for dandruff. On the box cover, there was a warning: anytime you use the shampoo, you must use the patch test – apply a small sample – the woman saw the warning on the box, took the box up to her bathroom, threw the box away and put the shampoo in the shower. He sees the shampoo, no warning on the bottle (it was on the box cover), he then lathered up his hair with the shampoo, shampoo caused a burning of his scalp. Can he recover via strict liability?
39 a. Yes, failure to warn with adequate warning. e. Strict liability – only defense is assumption of the risk. i. Contributory negligence is no defense for strict liability as a general rule. ii. With respect to commercial suppliers or sellers, there are other tort actions that you may also recover for and you should discuss on an essay (when dealing with commercial products): 1. Negligent manufacturing (defective product that injures the user or consumer). 2. Warranty theories under the UCC a. Express warranty b. Implied warranty 3. Strict liability extends to negligent manufacturing and express and implied warranties. Nuisance a. Public nuisance i. Act or activity that inconveniences, obstructs, or damages a right common to the general public. ii. Usually, a public nuisance will involve a serious interference with the public health (i.e., having a hog pen in your backyard or keeping diseased animals on your property; harboring explosives or harboring vicious guard dogs) or public safety or interfering with public peace (prostitution or gambling facility in your neighborhood). 1. P must suffer particular damage or special damage. 2. In order to recover for public nuisance, the P must have suffered a harm that is different of the kind that is different than that suffered by other members of the public -particular damage. a. Prosser: Just because there may be a house of prostitution in your neighborhood, it doesn’t mean you can recover unless you have actual injury. (ex: music blaring until 5AM or 6AM) and you cannot sleep or it adversely affects enjoyment of your home –you’re suffering actual harm and an actual injury. b. Ex: Someone is harboring a vicious dog or wild animal. Just because they may have a vicious dog, this doesn’t allow you to recover unless the dog actually bites you or injures you and then you can recover. c. Rationale: Avoid multiplicity of lawsuits. You cannot have every neighbor sue for a house of prostitution and there be 150 lawsuits. We therefore require particular damage by the P. b. Private nuisance
40 i. Where the dog howling all night or the Dupont factory emitting noxious fumes, private nuisance is where the disturbance constitutes a substantial and unreasonable interference with one’s enjoyment and use of the land. 1. There has to be a substantial interference – the disturbance must be annoying, inconvenient, disturbing, to an average person in the community. c. Nuisance vs. trespass i. Trespass: You have an invasion or entry onto the property of another. 1. You enter another’s property or you cast a thing or object onto the property of another. ii. Nuisance 1. Substantial interference with enjoyment of the land. iii. You can have both a trespass and nuisance. 1. Ex: Person has beehive in his backyard; neighbor was afraid to go into his backyard & sued his neighbor who kept the beehive, Jones, for nuisance and trespass. When the bees buzz over into the neighbor’s land and where the bees are affecting adversely the use and enjoyment of the property – fear going into your backyard for fear of the bees stinging you. 2. No false imprisonment though – locked in your house for fear of the bees stinging you. d. Remedies i. 3 basic remedies that are recoverable for nuisance: 1. Money damages (remedy at law) a. Where money damages are adequate to compensate the P for his loss, you receive money damages. (nuisance) 2. Injunctive relief a. Where money damages are inadequate, you proceed with the equitable remedy (remedies in equity). b. Injunctive relief c. Specific performance d. Reformation / rescission (contract law) e. Suits to quiet title to property (property) f. Partition proceedings (property) 3. Abatement by self-help a. Person has privilege to enter on to D’s land and personally abate the nuisance by giving notice to the D and refusing to take any action. i. Ex: Neighbor has an underground water or sewer line; there’s a breakage. You go to your neighbor and complains how the sewage is collecting on my front lawn. D
41 refuses. You get a plumber and you abate the nuisance by self-help. ii. Nuisance: factory emitting smoke, fumes, gases 1. Remedies: a. Apply balance of the hardships test. b. Rarely, if ever, will the court grant injunctive relief against the factory or some type of industrial enterprise b/c this would result in undue hardship from factory owner and employees from displacing them from their jobs. c. Injunctive relief will not be granted – only money damages (tested on the multistate and essays). i. P can recover for the injury, etc. Intentional misrepresentation (fraud / deceit) a. Prima facie elements i. False representation made by the D (false statement) ii. Scienter (knowledge that the representation is false) iii. Intent to induce the P to act or refrain from acting in reliance on a false statement iv. Justifiable reliance by the P upon the misrepresentation v. Damages or pecuniary loss b. Generally, there is no liability for nondisclosure – no duty to disclose a material fact or idea to another person. i. Exceptions – nondisclosure may be fraud where: 1. Fiduciary relationship between the parties (executor has a fiduciary duty to disclose information to the beneficiary) 2. Majority shareholder has a fiduciary duty to disclose information to its minority shareholders. 3. Bank has duty to disclose information to its bank account holders. a. Ex: Guy had a $1 that was misprinted with picture of George Washington upside down. The bank teller sees the misprinted bill with the face upside down and the bankteller knew this was worth $5,000. She then says to the depositor / customer: look at that crumbly old dollar bill you have there – would you like a crisp new dollar bill to replace that? He does that. He finds out he was defrauded and he sues the bank after he realizes that the dollar was worth $5,000. i. Correct answer: Bank would be liable for misrepresentation because it owed a fiduciary duty to reveal the full value of the dollar. Nondisclosure was actionable.
42 4. Act of concealment (i.e., salesman turns back mileage on odometer). 5. Incomplete statements may be actionable; if the D does speak, he must speak enough so as not to be misleading. There is fraud in a situation where someone makes a statement as to rental property where you want to rent property and possibly use the property for an apartment building or office building and the owner knows that it violates zoning laws and fails to notify you of the restriction. V. Defamation a. Libel i. Written defamation b. Slander i. Spoken defamation c. Prima facie case – libel or slander i. There must be defamatory language on the part of the D. 1. Language which adversely affects one’s reputation. a. May call into question a person’s integrity, good name, virtue. b. If the statement standing alone is defamatory, then it is defamatory on its face (i.e., you call someone a crook, a sheister). c. You can have inducement and innuendo. Sometimes, it is necessary to show defamatory meaning by adding extrinsic facts. Sometimes we can’t necessarily show the defamatory meaning on its face, but we have to prove additional facts. Where the P proves additional facts as inducement and establish a defamatory meaning by innuendo. ii. The defamatory statement must concern the P. 1. It must identify the P to a reasonable listener / reader. iii. The defamatory statement must be communicated to a third person – someone other than the person defamed. iv. There must be damage to the P’s reputation. v. There must be fault on the D’s fault. d. Can have defamatory statements by direct statements, pictures, cartoons, a movie, in a newscast. e. Who may be defamed: i. Any living person. f. Defamation of a deceased person is not actionable. g. Defamation of a company or corporation, the proper course of action is trade libel, not defamation. i. About the company’s product or company itself – proper course of action is trade libel, not defamation.
43 h. Defamatory statement must concern the P so that the P must show that a reasonable reader or listener would understand the defamatory meaning. i. You can have group defamation where someone says, “The Chicago Bears are a dirty football team and they purposefully try to injure opposing team players.” i. Defamatory statement is not defamation unless there has been publication. i. Publication – defamatory statement must be communicated to a 3rd person (other than the person defamed). j. Every repetition of a defamatory statement is separately actionable. i. Primary publisher and secondary publishers may be liable. k. There has to be damage to the reputation of the P. l. Slander per se or libel i. Damage to the P’s reputation is presumed and there is no need to plead or prove special damages m. Slander per se i. Loathsome disease ii. Imputing unchastity of a woman 1. Slander per se 2. Today, many decisions extend this also to males as well. 3. Common law limited this to a woman. iii. Imputing improper conduct in one’s trade, business, or profession iv. Imputing that the P is guilty of a criminal offense or a crime involving moral turpitude – falsely accusing P through a statement. v. Damage to P’s reputation is presumed and no need to plead or prove special damages for libel either. n. Damages for libel i. If defamation is in the form of libel, damage to P’s reputation is presumed and no need to plead or prove special damages for libel either. o. Minority of states i. Distinguish between libel per se and libel per quad. ii. Libel per se 1. Where injury to the P is presumed by law. 2. Similar to slander per se where the statement is libelous or defamatory on its face. iii. Libel per quad 1. Requires reference to extrinsic facts to establish its defamatory content. 2. Statement is not libelous on its face. p. Recovering for slander i. Necessary to plead and prove special damages (not true for slander per se). ii. Special damages require that the P suffered pecuniary loss as a result of the defamatory statement.
44 iii. It’s necessary that there be actual damages: loss of a job, loss of a gift or expected inheritance; hurt feelings, loss of friends, humiliation, embarrassment is not sufficient. 1. Necessary to prove pecuniary loss as a result of defamatory statement. q. Fault on the D’s fault: i. Categorize P as a public figure or private individual ii. If the P is a public figure: New York Times v. Sullivan, necessary to show malice (not ill will or spite), but constitutes reckless disregard of the truth or knowledge of the falsity. 1. Who is a public figure? A person can be a public figure either where he or she has achieved such base of fame or notoriety such as a movie star or a professional athlete, or where the person has voluntarily interjected himself in a public controversy (e.g., political candidate, Geraldo Rivera, every law professor at Southwestern and Loyola who was interviewed during the O.J. trial—Stan Goldman, Chimersky, etc.). iii. Private individual 1. Have to show negligent conduct (don’t have to prove malice). 2. But where there is malice with respect to private individuals, you can recover possibly punitive damages. r. Defenses to defamation i. Truth 1. Absolute defense ii. Consent 1. As with all torts, consent is a complete defense to defamation (i.e., battery, etc.). iii. Retraction is not a defense. 1. Retraction may be considered in the mitigation of damages, but it is not a defense to defamation. iv. Absolute privilege 1. Judicial proceedings (statements by judges, jurors, attorneys) 2. Legislative proceedings 3. Executive proceedings v. Qualified privilege 1. In the public interest 2. In the interest of others 3. Ex: Job recommendations. A prospective employer contacts a former employer and says: Mr. Edwards, we’ve received a job application from a Mr. Henley; Mr. Henley claimed that he worked for you and wants to know if you’d recommend him for this position which he’s applying for. Edwards sends a letter saying I wouldn’t recommend him –
45 he’s a thief, he’s stolen money. As long as former employer reasonably believes this, there is no defamation. But, if employer knew or had reason to know that the statement was false, then he’s acting with malice and the privilege (qualified privilege) is lost. ** Invasion of right to privacy a. 4 distinct cause of action i. Appropriation 1. Where the D appropriates P’s name or likeness for D’s own commercial advantage. 2. Ex: A student scored a 186 on the PMBR (the highest score in PA) and wrote to Feinberg about it. 2 weeks later, they distribute fliers with the student’s statement about how he owed his score all to PMBR. Student’s lawyer said that we’re seriously considering bringing a tort action against you for using my client’s name in your advertising. He says: you’re appropriating my client’s name and multistate score for commercial advantage. Feinberg then said: I have your client’s consent to use your client’s name and multistate score – and he said in fact, I got this letter. Feinberg then said: I thought I had implied consent. Lawyer said no. Feinberg said: let’s settle this, there was a misunderstanding and made a standard settlement offer; tell your client I apologize and that I’d like to settle this case and I’d allow him to take any PMBR course 3-day and 6day at anytime in the future. Lawyer said: he wants money damages. Feinberg had to pay $250 in damages for the unauthorized use of his name in advertising. ii. False light 1. Where the D places the P in a false light, or gives him attributes which he does not adhere to, or believe it himself or herself. Presenting P in a false light – giving views or espousing views he does not hold, or falsely having him accomplish certain acts or actions which he did not take in real life. 2. Multistate: a. Ex: A writer wrote a book about a famous baseball player and he said in the book that Mickey Mantle had the game winning homerun in the 7th game in the world series against the Pittsburgh Pirates in the 1960s. Mantle never hit this homerun. If Mantle sued the author, would he recover for defamation or invasion of right of privacy? i. Defamation – has to show that the statement has damaged your reputation,
46 lowered your esteem in the community (this enhanced Mantle’s reputation). ii. False light here – b/c he didn’t hit the home run. iii. Author could be liable for false light, but not defamation. iii. Public disclosure of private facts by the D about the P 1. The facts must be private. 2. The disclosure must be objectionable to a reasonable person. 3. Ex: Publication about certain facts about the P and there is legitimate public interest. a. Constitutional privilege in Time v. Hall: If the publication serves a legitimate public interest, then the publication will be privileged. b. But, where there is no legitimate public interest, then this tort is actionable. 4. Problems with celebrities in the tabloids where the Enquirer publishes a story saying that Steve Garvey is a sex fiend or that Carol Burnette’s daughter is a heroin addict, etc. a. Tabloids are publishing highly intimate or personal person. b. But, they have to show that their information is truthful and that it served a public interest, otherwise the publication can be actionable as defamation or invasion to right to privacy. iv. Intrusion on one’s seclusion or solitude 1. There must be an invasion or intrusion on P’s private affairs or seclusion, such as eavesdropping on private conversations, peeping toms, peering into private bedrooms, unwanted phonecalls. 2. Essay: Repeated, unwanted phonecalls (obscene phone calls where someone would call a woman up every morning at 2AM – this would go on for a period of time): What torts did the D who was making these phone calls, what torts would he be liable for? a. Discuss: i. Invasion of right to privacy ii. Intrusion on one’s seclusion or solitude iii. Private nuisance iv. Intentional infliction of emotional distress 1. Conduct is extreme and outrageous 2. Severe emotional distress suffered by P – humiliation, embarrassment. VII. MBE:
47 a. They will test you on fine line distinctions between the torts. i. Whether or not the D is liable for battery or assault; conversion or trespass to chattels; nuisance or trespass. ii. Best way to prepare for the multistate exam is by practice. 1. The more practice you do (all 300 of them), this will help you on the essay exam as well as on the objective section b/c the same issues are tested on the essays, as on the multistate exam. 2. Best way to prepare for the essays: by preparing for the multistate exam. 3. Oftentimes, examiners frame the essay questions based on the MBE questions. b. The key is organization. c. All you need is a table of contents or a short, capsule outline that gives you the rules of law in concise outline. d. Then do questions regarding the application of the law. Essays: a. Discuss all possible issues. b. Ex: If we have bees that are buzzing over someone’s land and the P is afraid to come into his backyard, you want to discuss both the nuisance and the trespass issue. c. Defenses to negligence, discuss: i. Contributory negligence ii. Comparative negligence iii. Assumption of the risk Businesses (infrequently tested) a. Economic relations – trade libel b. Interference with contractual relations