Please enable JavaScript.
Coggle requires JavaScript to display documents.
Torts (Intentional torts (Torts against persons: (Assault: Plaintiff…
Torts
Intentional torts
Liability tort requires:
- a voluntary act,
- intent,
- the elements of a prima facie claim for that tort,
- causation,
- harm, and
- lack of a privilege or defense
Intent:
- established if the defendant either desires that his act will cause the harmful result or knows with a substantial certainty that the result will follow.
- Children and mentally incompetent persons can be held liable for an intentional tort if the required intent is met.
Transferred intent:
- When the defendant intends to commit one tort, but commits a different tort against that person or another person.
- limited to certain torts:
- Assault
- Battery
- False imprisonment
- Trespass to land
- Trespass to chattels
Torts against persons:
Assault: Plaintiff experiences a reasonable apprehension of an immediate harmful or offensive contact.
- Apparent ability is all that is required.
- Harmful or offensive contact exists if a reasonable person would regard it as offensive.
- Exaggerated fears are not actionable unless the defendant knew about that fear and used it to put plaintiff in apprehension.
- Fear is not required, only an apprehension of a harmful or offensive contact.
- Words alone are insufficient (Some overt act is required).
- Actual damages not required (can recover nominal damages).
Battery: Harmful or offensive contact with the victim or something closely connected with the victim.
- Reasonable person standard.
- Includes anything connected to the victim's person.
- Direct touching not required. Includes setting in motion a force that brings about the harmful or offensive contact (throwing a rock).
- Apprehension is not required.
- Lack of consent.
False Imprisonment: Intentional act that causes a plaintiff to be confined or restrained to a bounded area against plaintiff's will and the plaintiff knows of the confinement or is injured.
- Confinement includes:
- confining by physical barriers.
- Failing to release the plaintiff where the defendant has a legal duty o do so, or
- asserting invalid legal authority.
- Very brief time is sufficient (no specific duration of time required)
- No duty to resist if defendant makes a credible threat to use physical force.
- Not confined if there is a reasonable means of escape that plaintiff is actually aware exists.
- 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.
Intentional Infliction of Emotional Distress (IIED): Intentional or reckless act amounting to extreme and outrageous conduct that causes the plaintiff severe mental distress.
- Reckless conduct is sufficient if defendant acts in deliberate disregard of a high degree of probability that emotional distress will follow.
- Extreme and outrageous conduct is beyond the bounds of decency (conduct a civilized society would not tolerate).
- Mental distress must be severe and substantial (more than a reasonable person could be expected to endure)
Torts against property:
Trespass to land: Tortfeasor's intentional act is a physical invasion of property.
- 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 (not ownership)
- Satisfied if plaintiff causes a third person to enter onto plaintiff's land or remains upon the plaintiff's land when under a legal duty to leave.
- Plaintiff's land includes the area both above and below the surface.
- Liable for nominal damages and actual harm.
Trespass to chattels: Intentional act that interferes with the plaintiff's chattel, causing harm.
- Chattel means tangible personal property or intangible property that has a physical representation.
- Mistake is not a defense.
- Interference includes dispossession or intermeddling.
- More serious interference may amount to conversion.
Conversion: Intentional act that causes the destruction or serious interference with the plaintiff's chattel.
- 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 a defense.
- Plaintiff entitled to fair market value at the time of conversion plus consequential damages or replevin.
- Defendant's offer to return the chattel does not alleviate the conversion.
Defenses
Self-defense: when a defendant may use force reasonably necessary to protect against injury when he reasonably believed he is being or is about to be attacked.
- Defendant cannot be the initial aggressor and reasonable mistakes as to the danger are allowed.
- Look for when a duty to retreat may be imposed.
-
Defense of property: requires a defendant to request the plaintiff to stop or leave unless it would be futile (Defendant may not use deadly force).
Necessity: requires that injuring plaintiff's property was reasonably necessary to avoid a substantially greater harm to the public, to the defendant, or to save the defendant's more valuable property.
- A reasonable person standard is used.
Consent: can be express or implied, and defendant will still be liable if he exceeds the scope of the consent
Negligence
Elements
-
Causation
Cause in fact (actual cause):
- But for the defendant's action, the plaintiff's injury would not have occurred.
- OR, the defendant's actions were a significant factor in bringing about the injury.
- When two or more defendants have been negligent, but uncertainty exists about which one caused the injury, the burden of proof shifts to the plaintiff to prove that harm has been caused by one of them. The burden shifts back to the defendants to show their negligence was not the cause.
Proximate cause:
- Defendants are liable for the normal incidents within the increased risk caused by their acts.
- As duty arises only to foreseeable plaintiffs who are within the zone of danger, proximate cause requires that risk also be foreseeable.
-An exception to the foreseeable risk doctrine is the eggshell plaintiff (defendants take the full consequence for a plaintiff's injuries, even if the injuries are more severe than they would have been with a normal person).
Foreseeable intervening acts do not cut off a defendant's liability.
- These include subsequent medical malpractice, negligence of rescuers, and subsequent accidents. (the key is foreseeability)
Unforeseeable intervening acts do cut off liability.
- Such superseding causes may include naturally occurring phenomena, criminal acts of third person (unless foreseeable), intentional torts of third persons, or extraordinary forms of negligent conduct by the third person.
Duty:
- Defendant must meet a certain standard of conduct for the protection of others against unreasonable risk.
- When action is taken, a duty of care is owed to all foreseeable plaintiffs.
- No affirmative duty to act exists (Exceptions: innkeepers; common carriers; special relationships)
- One can assume a duty to act (besides standard of care, also liable if leaves plaintiff in worse condition)
- No duty to control others (Exceptions: special relationships)
Standard of care:
- A defendant's conduct is measured against a reasonable, ordinary, prudent person.
- A higher standard of care is imposed on professionals.
-standard of care also varies depending upon the relationship between the parties (bailor/bailee, owners/occupiers of land, landlord/tenant)
- A child's conduct is held to the standard of care of a reasonable child of the same age, education, intelligence, and experience.
- Some jurisdictions divide by age (for ages 6 and under it is conclusively presumed that they are incapable of negligence; ages 7-13 there is rebuttable presumption of no negligence; ages 14 and up there is rebuttable presumption of capability for negligence)
Damages: means actual harm or injury.
- Unlike some intentional torts, a plaintiff cannot recover nominal damages.
- Plaintiff is compensated for all past, present, and prospective damages
- including economic damages, such as medical expenses and lost earnings, and
- noneconomic damages such as pain and suffering
- Punitive damage be recoverable if defendant's actions were wanton and willful, reckless, or malicious.
Negligent infliction of emotional distress:
- Plaintiff must be in zone of danger
- suffered a physical manifestation
- Exceptions: Negligent death notice and mishandling of corpse.
- Bystander
- Located near the scene of the accident
- Suffered severe emotional distress from the sensor and contemporaneous observation of scene.
- Had a close personal relationship with victim
Defenses
Assumption of risk: requires that the plaintiff must have known or should have known of the risk and still voluntarily proceeded with the action.
-Essentially, that the plaintiff consented to the defendant's actions.
- This can be an express or implied assumption
-
Comparative fault: means that the plaintiff's conduct contributed to her injury and is compared to defendant's negligence.
- Damages are reduced accordingly.
- Comparative fault does not apply to intentional torts.
- Under Pure Comparative Negligence, the plaintiff's recovery will be reduced by the percentage of its negligence.
- Under Modified Comparative Negligence, a plaintiff cannot recover when they are more responsible for the damages than the defendant.
Joint and Several Liability: each defendant is liable for the entirety of plaintiff's damages.
- arises when two or more tortious acts combine to cause an indivisible injury.
- If plaintiff recovers full from one defendant, then there is satisfaction and she cannot also recover from the second defendant.
- The rule of contribution allows the tortfeasor that paid to seek recovery for the amount that was more than his share from the other defendant.
-
Strict liability
Liability for Animals:
- Injury by a wild animal will almost always result in strict liability even if the defendant claims it is "domesticated."
- Likewise, the owner is strictly liable for damages when his animal trespasses, if it is reasonably foreseeable.
- Strict liability for domesticated animals typically arises by statute and is dependent on the owner's knowledge.
Products Liability: same analysis as strict liability (requires consideration of proof unique to products)
Defect:
- Manufacturing defect: Products was dangerous beyond the expectation of the ordinary consumer because of a departure from its intended design (food products treated same way)
- Design defect: Plaintiff must show a reasonable alternative design that is a less dangerous modification or alteration and was economically feasible
- Warning defect: While adequate warnings insulate a defendant, inadequate warnings result in liability.
Control:
- Defect must have existed at the time the product left that defendant's control.
Business:
- Only commercial supplies can be held liable (Casual sellers are not liable)
Causation:
- Both actual cause and proximate cause required.
Damages:
- Compensatory and punitive damages available (most states deny recovery under strict liability when the sole claim is for economic loss).
Abnormally Dangerous Activity
- Must create a foreseeable risk of serious harm even with the exercise of reasonable care
- Must be an activity that is not a matter of common usage.
To establish a prima facie case for strict liability, the plaintiff must prove:
- The nature of the defendant's activity imposes an absolute duty to make safe;
- The dangerous aspect of the activity is the actual and proximate cause of the plaintiff's injury; and
- The plaintiff suffered damage to person or property.