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Torts (Intentional Torts (Against Persons (Battery: Harmful or offensive…

- - - - Harmful or offensive contact exist if a reasonable person would regard is as offensive.
        -- Exaggerated fears are not actionable unless the def. knew about that fear and used it to place plaintiff in apprehension.
        -- Fear is not required, only an apprehension of a harmful or offensive contact.
      - apparent ability is all that is required. The fact that def. could not have committed the harmful or offensive contact does not defeat liability.
      - Actual damage not required. Can recover nominal damages.
      - Words alone are not enough. Some overt act is required.
    - - Reasonable Person standard.
      - Includes anything connected to the victim.
      - Direct touch not required.
      - Includes setting in motion a force that brings about the harmful or offensive contact - i.e. throwing a baseball
      - Apprehension not required.
      - Lack of consent
    - - Very brief time is sufficient. No specific time duration required.
      - No duty to resist if def. makes a credible threat to use physical force.
      - Confinement includes: confining by physical barriers; failing to release the plaintiff where the def. has a legal duty to do so; or asserting invalid legal authority
      - Not confined if there is a reasonable means of escape that the plaintiff is actually aware of.
      - Requires knowledge of confinement or actual harm.
      - Defense: Shopkeeper's privilege requires detention that is: in a reasonable manner; for a reasonable period of time; and based on a reasonable belief as to theft.
    - - Reckless conduct is sufficient if def. acts in deliberate disregard of a high degree of probability that emotional distress will follow.
      - Extreme and outrageous conduct is beyond the bound of decency - i.e. conduct that a civilized society would not tolerate.
      - Mental distress must be severe and substantial - more than a reasonable person could expect to endure.
  - - - intentional entry is all that is required. no intent to cause harm required.
      - Mistake is not a defense. need not know they are trespassing.
      - Plaintiff must be in actual possession or have the right to immediate possession of that land. Does not have to be ownership
      - Satisfied if plaintiff causes a third person to enter onto plaintiff's land or remains upon plaintiff's land when under a legal duty to leave.
      - Plaintiff's land includes area above and below surface.
      - Liable for nominal damages and actual harm.
    - - chattel means tangible personal property or intangible property that has a physical representation
      - Mistake is not a defense.
      - interference includes disposition or intermeddling.
      - More serious interference may amount to conversion.
    - - interference is more serious than trespass to chattel and includes: a greater use of the chattel and a longer period of interference.
      - mistake is not defense.
      - plaintiff entitled to fair market value at the time of conversion plus consequential damage is, or replevin.
      - defendant's offer to return the chattel does not alleviate the conversion.
  - - - Limited to: Assault, Battery, False imprisonment, Trespass to land, and trespass to chattels.
  - - - Cannot be the initial aggressor.
      - Duty to retreat?
      - Similar analysis for defense of others
- - - - Appropriation up the plaintiffs name or picture: unauthorized use of the plaintiffs identity or likeness for the defendants commercial advantage
      - intrusion on the plaintiffs affairs/seclusion: defendant unreasonably intrudes into the plaintiffs seclusion:
        
        Physical or non physical intrusion
        
        Must be highly objectionable to a reasonable person
        
        Refers to the plaintiffs physical solitude or the privacy of personal affairs or concerns. Plaintiff must have a reasonable expectation of privacy
      - Publication of facts placing plaintiff in a false light: defendant publishes matters that places a plaintiff in a false light
        
        Attributing to the plaintiffs views he does not hold or actions he did not take
        
        Reasonable person would find offensive
        
        Must be communicated to a substantial number of people
      - Public disclosure of private facts about the plaintiff: defendant unreasonably disclose is private facts about the plaintiff to the public
        
        Needs to be highly offensive to the reasonable person and not of legitimate public concern
        
        Must be publication to the public
        
        Does not apply a publication is newsworthy
  - - - Defamatory message: message lowers a plaintiff in the communities esteem or discourages a third person from associating with him
      - of or concerning the plaintiff
      - Publication: a third person received the defamatory messaged and understood it to be about the plaintiff.
      - Harm to reputation
    - - Libel - written form
      - slander - not preserved in permanent form - i.e. spoken word.
      - Slander per se:
        -- Commission of a crime.
        -- Allegation of loathsome disease.
        -- Imputes improper conduct of business or profession.
        -- Serious sexual misconduct.
    - - Truth: Historical defense. Plaintiff must prove falsity of the claim in prima facie case.
      - Privileges:
        
        Absolute:
        
        Defendant may not be held liable for an otherwise defamatory statement as a matter of law.
        
        applies to legislator, participant in judicial proceeding, policy making officials, and spouses
        
        defendant has burden of proving privilege
        
        Qualified: defendant is not held liable for an otherwise defamatory message unless he loses the protection of the privilege
        
        applies to communications of a matter of interest to the recipient.
        
        defendant has burden of proving privilege.
        
        privilege does not apply or is lost if:
        -- the matter is outside the scope of the privilege ( includes matters not relevant to the interests protected by the privilege), or
        -- defendant acts out of malice (defendant primary motive was something other than furthering the interest that justified at the privilege).
      - Consent
    - - General damage is: no proof of actual damage is required
      - Pecuniary or special damages: Quantifiable monetary losses. - Plaintiff must prove unless slander per se.
      - Punitive damages: need additional showing up malice
    - - Malice is required: knowing falsity or recklessness as to truth or falsity.
      - Nature of Plaintiff: Public official or public figure (a person who has achieved pervasive fame or notoriety or as a specific limited issue).
      - Subject matter controversy: matter of public concern
      - Required for presumed or punitive damages
  - - - Things a court will consider
        
        Whether the conduct involves a significant interference with the public health, safety, peace, comfort, or convenience;
        
        Whether the conduct is prescribed by a statue, ordinance, or regulation; and
        
        Whether the conduct is of continuing nature or has produce a permanent or long lasting effect.
      - No personal recovery, unless the individual suffers a harm of a kind different from that suffered by other members of the public
- - - - One analysis
      - Defect:
        
        Manufacturing defect: Product was dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design.
        
        Food products treated same way: customer expectations standard
      - Design defect: plaintiff must show a reasonable alternative design that is a less dangerous modification or alteration in was economically feasible
        
        Warning defect: while adequate warning insulates a defendant, in adequate warning results in liability
        
        Seller must anticipate reasonably foreseeable misuses of the product.
        
        no requirement of contractual privity
        
        reasonable alternative design must exist at the time of the original design. Later improvements, so called "state of the art," do not constitute a reasonable alternative design
      - Control: defect must have existed at the time the product left the defendants control
      - changes: product must reach user without substantial change in the condition in which it was supplied
      - Causation: both actual cause and proximate cause required
      - Damages: compensatory and punitive damages ares available. most states deny recovery under strict liability when the sole claim is for economic loss
    - - Must create a foreseeable risk of serious harm even with the exercise of reasonable care, and must be an activity that is not a matter of common usage. - if reasonable care is used, the activity is not abnormally dangerous
    - - Depends upon the nature of the animal.
        
        Injury by wild animal will almost always result in strict liability even if the defendant claims it is domesticated
        
        An owner is strictly liable for damage is when his animal trespasses, if it is reasonably foreseeable
        
        For domesticated animals, strict liability typically arises by statue and is dependent on the owners knowledge of the animal.
- - - - Occurs when def.'s conduct fall below the standard of care.
        
        Negligence per se when a statute provides for a criminal penalty, the statutes specific duty replaces the common law duty.
        
        Plaintiff must prove he was in the class intended to be protected by the statute, the harm suffered is the particular harm the statute was created to prevent, and the standards of conduct are clearly defined
        
        Res ispa loquiturapplies based on the particular injury, circumstantial evidence doctrine. - The accident that caused the injury would not have normally occurred unless someone was negligent, and the negligence is attributed to the def.
    - - Actual cause (cause-in-effect) but for the def. action, the plaintiff's injury would not have occurred. Or the def. actions were a significant factor in bringing about the injury
        
        When two more more defs have been negligent, but there is uncertainty about who caused the harm, plaintiff has the burden of proof to show harm was caused by one of them... burden then shifts back to def. to show their negligence was not the actual cause.
      - Plaintiff must also prove def. actions were the proximate cause of injury.
        
        Foreseeability Test: Duty only arises to foreseeable plaintiffs who are within the zone of danger, proximate cause requires the risk to be foreseeable
        
        Exception: egg shell plaintiff, defendants take full consequences for the plaintiffs injuries, even if entries are more severe than they would have been with a normal person
        
        direct cause when there is an uninterrupted chain of events between a defendant negligent act in the plaintiffs injury, defendant is liable for all foreseeable harmful result
        
        indirect cause where a force came into motion after the defendants act and combined with the negligent act to cause the plaintiffs injury. The intervening force may break the chain of causation between the initial act and the ultimate injury
        
        Foreseeable intervening act do not cut off the dependence liability. These acts include subsequent medical malpractice, negligence of rescuers, and subsequent accident
        
        Unforeseeable intervening acts do not cut off liability. Such superseding causes may include naturally occurring phenomena, criminal act of third persons (unless foreseeable), intentional torts of third persons, or extraordinary forms of negligent conduct by the third person
    - - defendant must meet certain standard of conduct for the protection of others against unreasonable risk
        
        When no action is taken, a duty of care is owed to all foreseeable plaintiffs.
        
        no affirmative duty to act exist.
        -- exceptions resulting in an affirmative duty include: innkeepers, common carriers, special relationships.
        -- one can assume a duty to act. Beside standard of care, also liable if leaves plaintiff in worse condition
        -- no duty to control others.
        --- Exception: special relationships
        --- parents have duty to control child if the know or have the ability to control child.
        --- Masters have duty to control servants while acting in scope of employment.
        --- Masters have duty of care in hiring employee. Look for knowledge of servant's prior back acts.
        
        Negligent infliction of emotional distress.
        -- Plaintiff must be in zone of danger
        --- Suffered a physical manifestation
        --- Exceptions to zone of danger and physical manifestation: negligent death notice and mishandling of corpse.
        -- Bystander
        --- Located near the scene of the accident
        --- Suffered severe emotional distress from the sensory and contemporaneous observations of scene.
        --- Had close personal relationship with victim.
        
        Possessors of land
        -- invitee: duty to prevent injuries and duty to discover dangerous conditions
        -- Licensee: duty to exercise reasonable care and to warn of dangerous conditions.
        -- Trespasser:
        --- Unknown trespasser: no duty of care
        --- Known trespasser: jurisdictions take different approaches
        --- Children: heightened standard of care as to artificial conditions
      - Standard of Care Measured against a reasonable, ordinary prudent person (objective standard)
        
        Heighten standard for professionals.
        
        Standard varies depending on relationships: i.e. bailor/bailee, owner/occupier of land, landlord/tenant.
        
        For child - a reasonable child of same age, education, intelligence, and experience.
    - - Actual harm or injury
      - Cannot recover nominal damages
      - Compensated for past, present, and prospective damages
        
        Economic damages like medical expenses and lost earning
        
        Non-Economical damages like pain and suffering
        
        Punitive damages may be recoverable if def. actions were wanton and willful, reckless, or maicious.
  - - - If plaintiff recovers in full from one defendant, then there is satisfaction and cannot recover from the second defendant. The rule of contribution allows the torteasor that paid to seek recovery for the amount that was more than his share from other defendant. This occurs when the fault Is apportioned, as is the case with pure comparative fault