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Torts - Coggle Diagram

- - - - Frolic or detour
        
        Detour: minor deviation from employer's business = SOE
        
        Frolic: substantial deviation from employer's business = not SOE; no VL
      - Intentional Torts - not within SOE UNLESS
        
        EE is furthering business of employer
        
        Force is authorized om employment
        
        Friction is generated by employment
  - - - Exceptions
        
        inherently dangerous activity
        
        non-delegable duty
        
        business owner duty to make premises safe for customers
      - Hirer can be liable for own negligence in selecting or supervising IK
  - - - Exceptions
        
        some states -- Family Car: liable for tortious conduct of immediate family/household members driving with express or implied permission
        
        some states -- Permissive Use: liability on owner for anyone driving with owner's consent
  - - - may be liable for willful and intentional torts of minor children
      - Can be liable in their own right: negligent supervision of child; knowledge if child's conduct showing tendency to injure another's person or property
- - - - reasonable apprehension
        
        fear not required
        
        must be reasonable from P's perspective
        
        mere words insufficient / but words can negate
      - of immediate harmful or offensive contact with person (imminent battery)
        
        P can recover nominal damages even if actual damages are not proved; punitive damages if D acted maliciously
    - - harmful or offensive contact with P's person
        
        reas. person regard as harfmul or offensive (not permitted)
        
        includes anything connected to P
        
        lack of consent
        
        Damages not required: can recover nominal damages; punitive damages if P acted maliciously
    - - act that confines or restrains P
        
        physical barriers
        
        failure to release when legal duty
        
        asserting invalid legal authority
      - to bounded area
        
        no reasonable means of escape that P knows exists
        
        way out cannot be dangerous, disgusting, humiliating, or hidden
        
        No time element
        
        P must be aware of confinement
      - Damages not required: can recover nominal damages; punitive damages if D acted maliciously
    - - extreme or outrageous conduct (intentional or reckless act)
        
        reckless conduct sufficient
        
        beyond bounds of decency in civilized society
        
        not mere insults
        
        vulnerable classes
        
        known vulnerability
        
        Hallmarks of outrageousness
        
        committed by a certain type of defendant
        
        innkeeper
        
        common carrier
        
        directed toward certain type of P
        
        elderly
        
        pregnant women
        
        children
        
        supersensitive adults IF D knows of sensitivities
        
        continuous in nature
      - causes p to suffer severe emotional distress
        
        actual damages required, but not physical damages
        
        Causation in Bystander cases: P suffers sever emotional distress from conduct directed to 3P
        
        Show either
        
        prima facie case elements of emotional distress OR
        
        (1) present when injury occurred; (2) distress resulted in bodily harm or P close relative of 3P; and (3) D knew these facts
  - - - physical invasion of P's real property
        
        intent: only to enter land (no need to intend trespass)
        
        mistake not a defense
        
        includes area above and below the surface
    - - intentional act that interferes with P's right to possession of personal property
        
        mistake not a defense
        
        interference = dispossession or intermeddling (more serious is conversion)
    - - intentional act that causes destruction or serious interference with P's chattel
        
        mistake not a defense
        
        P entitled to FMV of chattel at time of conversion
        
        D keeps ruined property: in effect, forced sale
  - - - Defendant's conduct was a substantial factor in bringing about the injury
    - - def. desires act will cause legally forbidden consequence / knows with substantial certainty result will follow (need not intent specific injury)
      - Transferred Intent: diff. tort/person than intended, intent for first transferred to second
        
        Battery
        
        False Imprisonment
        
        Assault
        
        trespass to Land
        
        Trespass to chattels
  - - - reasonable manner
      - reasonable period of time
      - reasonable belief of theft
    - - express
      - implied
      - cannot exceed scope of consent
      - Capacity to consent required: must be capable of consenting
    - - Defense of property
        
        unavailable if initial actor had a privilege to enter land
        
        ex: recapture of chattel, necessity
        
        no DF for property alone
        
        reas mistake allowed as to whether instrusion occurred, but NOT whether privilege existed
      - Defense of Others
      - Self Defense
        
        D may use force reas necessary to protect against injury when reas. believes about to be attacked
        
        D cannot be initial aggressor
      - Re-entry onto Land
        
        NO self help
      - Recapture of Chattels
        
        When another's possession began lawfully, one may only use peaceful means to recover the chattel
        
        reas. force may be used only when in hot pursuit of one who has obtained possession wrongfully
    - - public
        
        serious emergency to wider public (absolute privilege)
      - private: person may interfere with property of another where it is reas and apparently necessary to avoid threat or injury from natural or other force (to oneself or small group) where threatened injury is substantially more serious than the invasion that seeks to avert it
        
        qualified privilege (still liable for damage to property)
  - - - Privilege: D's conduct may be privileged when it is a proper attempt to obtain business or protect his interests
- - - - third person received statement and understood it to be about P
      - Re-publication: republisher of defamatory statement is liable to the same extent as the original publisher
    - - lowers P in community esteem / discourages 3P from associating with him
    - - depends on status of P
        
        public figure/public official/public concern = actual malice
        
        knowledge of falsity
        
        recklessness as to truth or falsity
        
        private person
        
        only negligence required
    - - harm to reputation
        
        libel (permanently written/recorded)
        
        presumed
        
        slander (spoken)
        
        must prove special damages UNLESS slander per se
        
        serious crime of moral turpitude
        
        serious sexual misconduct
        
        business/profession
        
        loathsome disease
      - of reputation unlikely to be harmed, can diminish damage amount even if prima facie case established
    - - Privileges
        
        Qualified
        
        communications of a matter of interest to recipient
        
        privilege lost if:
        
        malice
        
        matter outside scope of privilege
        
        D invites statement and/or recipient has an interest (employment reference, credit report, letter of rec)
        
        Absolute
        
        Members of 3 branches of govt: govt officials in their official capacity
        
        Spouses
      - Consent
      - Truth
        
        complete defense
  - - - unreasonable intrusion into P's seclusion
      - highly offensive to a reas person
      - into a "private" thing
        
        (not photograph in a public place)
      - DOES NOT REQUIRE PUBLICATION (other 3 privacy torts do)
    - - highly offensive to reas person/ no legit public concern
      - Publication: must circulate statement to the public at large
      - D attributes to P views he does not hold or actions he did not take
    - - unauthorized use of P's picture or name
      - for D's commercial advantage
    - - highly offensive to reas person
      - newsworthiness excpetion
      - D unreas discloses private facts about P to public (publication)
  - - - unreasonable interference with public property or a right common to the general public
        
        whether the conduct is proscribed by a statute, ordinance, or regulation; and
        
        whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect
        
        whether conduct involves significant interference with public health, safety, peace, comfort, or convenience
    - - activity or thing that substantially and unreasonably interferes with the P's use and enjoyment of private land
        
        substantial = offensive, inconvenient, annoying to average person in the community
        
        NOT due to specialized use of the land or P's sensitivity
        
        unreasonable
        
        severity of inflicted injury must outweigh utility of D's conduct
        
        Defenses
        
        hypersensitive P - must be interference for average person in community
        
        NOT a good defense: "coming to the nuisance"
        
        P can purchase land next to already existing nuisance and bring lawsuit; generally not a bar UNLESS for sole purpose of bringing a harassing lawsuit
  - - - knowledge of falsity
      - reckless disregard as to truth or falsity
    - - reasonable person standard
    - - active concealment
      - omissions of fact or failure to disclose
      - False, affirmative statement
    - - actual reliance)
  - - - may be privileged if proper attempt to obtain business
        
        commercially acceptable means of persuasion
        
        competitor seeking same prospective customers
        
        interference only with prospective business rather than existing Ks
        
        financial interest in or responsibility for 3P
- - - - blasting
      - hazsardous chemcical materials
      - high-dose radiation
  - - - Includes entire distribution chain
      - Includes commercial lessors
      - Not services
      - Not casual sellers
    - - Manufacturing Defect
        
        departure from original design / more dangerous than products that were made properly
      - Design Defect
        
        P must show reas alternative design that is a less dangerous modification or alteration and was economically feasible
      - Informational Defect
        
        Inadequate warnings as to risks involved using the product
        
        comprehensible
        
        information about mitigating risk
        
        prominent
    - - Product has not been significantly altered since it left D's control
        
        if product moved through normal channels of distribution, inferred not altered
    - - foreseeable =/= intended use (misuse may be foreseeable)
  - - - Strict liability to invitees and licensees for wild animals
        
        unprovoked injuries caused by wild animal + injuries incurred from fleeing the wild animal
      - NO strict liability to trespassers (trespasser must prove negligence)
    - - no strict liability UNLESS knowledge of particular animal's dangerous propensities not common to the species
- - - - Defendant's conduct falls short of standard of care
        
        only creation of unreasonable risk of injury; if acting reasonably in light of job obligations (baseball player hitting fly ball) OK
      - Res Ipsa Loquitor
        
        P must show:
        
        accident causing the injury is a type that would not normally occur unless someone was negligent
        
        negligence is probably attributable to the defendant (accident ordinarily happens because of the negligence of someone in the D's position)
        
        exclusive control: instrumentality causing injury was in the exclusive control fo the D
        
        Effect
        
        P has made prima facie case -- no directed verdict (JMOL) for D
      - Negligence Per Se
        
        where criminal statute provides clearly defined specific duty, can replace common law duty
        
        P must prove:
        
        within class of people intended to be protected by the statute
        
        harm suffered is the particular harm that the statute was designed to prevent
        
        proving statute applies and violation of statute establishes duty and breach elements per se
        
        Excused
        
        D's violation of statute excused if compliance is more dangerous or beyond D's control
        
        compliance more dangerous than violation
        
        compliance beyond D's control / impossible under the circumstances
    - - Actual Cause
        
        "But for" D's actions, injury would not have occurred
        
        Multiple defendants
        
        Merged Causes: substantial factor test
        
        multiple sufficient causes
        
        Unascertainable causes
        
        burden of proof shifts to Ds - must show his negligence is not the actual cause
        
        mult. D's negligent (must show each Def. negligent); cause unascertainable
      - Proximate Cause
        
        foreseeability: injury caused was a foreseeable result of the increased risk of harm of D's conduct
        
        Chain of events
        
        Direct cause: uninterrupted chain of events between a defendant's negligent act and the Plaintiff's injury
        
        D liable for all foreseeable harm that results
        
        Indirect Cause
        
        Intervening force came into motion after D;s act and combined with negligent act to cause P's injury
        
        foreseeable intervening acts = liable
        
        Negligence of rescuers
        
        protection or reaction forces
        
        Medical malpractice
        
        disease or accident substantially caused by original injury
        
        PRODUCTS LIABILITY: intermediary's negligent failure to discover a defect does not supersede the original manufacturer's negligence unless conduct exceeds ordinary foreseeable negligence
        
        unforeseeable intervening act = not liability (superseding force)
        
        P's own negligence would generally raise comparative negligence issue, not superseding force
    - - General Duty of Care
        
        standard of conduct for protection of others against unreasonable risk
        
        Standard: reasonably prudent person standard (objective)
        
        Exception for physical characteristics: (ex. reas person with D's disability)
        
        Exception for superior skill or knowledge (reas. person with D's superior skill or knowledge)
        
        Duty of care is owed to all foreseeable victims
        
        rescuers are foreseeable victims as long as rescue is not reckless
      - Children
        
        standard: child of like age, experience, and intelligence (subjective)
        
        EXCEPTION: adult activity (ex: motorized vehicle)
        
        6 and below: presumed incapable of negligence
        
        7-13: rebuttable presumption of nop negligence
        
        14+ rebuttable presumption of capability for negligence
      - Professionals
        
        standard: average member of the profession in good standing
        
        Doctor: Duty to disclose the risks of treatment
        
        breached if an undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld consent on learning of the risk
        
        remember: even if breach of duty -- damages required prove negligence! (unlike intentional tort/battery claim against doctor)
      - Possessors of Land
        
        Invitee (allowed on land for economic/business benefit of possessor OR member of public on land held open for public)
        
        Concealed hazardous conditions
        
        known to possessor or
        
        could be discovered with reas inspection (duty to inspect)
        
        Licensee (allowed on land for non-economic interest of possessor - ex.: social guest)
        
        concealed hazardous conditions
        
        known to possessor
        
        Trespasser
        
        Unknown Trespasser: NO duty of care
        
        Known Trespasser (known, man-made death traps
        
        Highly dangerous
        
        concealed
        
        Artificial condition
        
        Known to possessor
      - Statutory Standards of Care (Neg. Per Se)
      - No affirmative Duty to Act
        
        Exceptions
        
        innkeepers
        
        common carriers
        
        special relationship
        
        Assumption of duty by acting
        
        if put P in worse position than they were
      - Other Particular Standards
        
        Innkeeper/Common Carrier
        
        Automobile Driver to Guest
        
        Bailment Duties
      - Negligent infliction of Emotional Distress
        
        Bystander
        
        close personal relationship with victim
        
        contemporaneously perceived event or at location of event
        
        seeing aftermath is not contemporaneous perception of accident
        
        suffered severe emotional distress from sensory / contemporaneous observation of the scene
        
        Business relationship
        
        negligent death notice
        
        mishandling of corpse
        
        Near Miss
        
        P must be in zone of danger
        
        must duffer physical manifestation
        
        MUST SHOW DAMAGES (physical manifestation or severe emotional distress)
        
        EXCEPT (do not need to show damages) for (i) mishandling corpse or (ii) false report of death
      - No Duty to control others
        
        Exception: special relationship
        
        Parents have duty to exercise reasonable care to control their child if they know or have reason to know of necessity and have ability to control their child
        
        Masters have duty to control servants while acting in SOE
    - - Actual harm or injury
      - eggshell-skull plaintiff rule: defendants take the full consequence for P's injuries, even if injuries are more severe than they would have been with a normal person
      - Types of Damages
        
        Pers. Injury
        
        D must compensate P for all PI damages
        
        past, present, prospective
        
        economic and non-economic
        
        Property
        
        P can recover reas cost fo repair
        
        Punitive
        
        only if D's conduct is wanton and willful, reckless, or malicious
        
        usually not available in neg.
        
        Non-recoverable:
        
        P can never recover for: interest from date of damage in PI cases or Att'y's fees
  - - - assume pure comparative fault applies unless stated otherwise
    - - 1) P knew of risk
      - 2) P voluntarily proceeded with the action
  - - - Where to or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be liable to P for entire damage incurred
        
        DIVISIBLE INJURY: each defendant is liable only for the identifiable portion
      - Contribution: paying D can recover from other Ds for relative fault
      - indemnification: paying D can recover 100% from other D
        
        vicarious liability
        
        strict products liability from non-manufacturer
        
        intentional tortfeasor liable for all consequences of wrongful action, intended, unintended, and unforeseeable