Torts

Intentional Tort 1) Act 2) Intent 3) Causation

Economic Harm & Dignity Tort

Strict Liability

Negligence

Intent

Against Persons

Against Property

Defenses

Fraud/Misrep

Invasion of Privacy

Nuisance

Defamation

Abnormally Dangerous Activity

Defective Product

Defenses

Liability for Animals

Negligence Elements

Duty

Breach: Specific act by defendant that fails to meet the standard of care (may be act or omission)

Causation

Damages

Actual Cause Factual causal link between breach and harm. Use 'but for' test: Injury would not have occurred but for D's breach

Proximate Cause

Defenses

Comparative Fault: Plaintiff fail to exercise reasonable care for their own safety and P's damages reduced by % of fault

Contributory Negligence

Assumption of Risk

Intent Defined: Desire to produce legally forbidden consequence

Transferred Intent: 1) D has intent 2) Different consequence results OR 3) Different victim results

Battery:
1) Intent


2) Causation


2) Harmful /Offensive contact- Unpermitted contact by person of normal sensitivity


3) With D's person- Anything P is touching/holding

  • Note: contact may be delayed-does not have to be instant!

Assault
1) Intent


2) Cause


3) Reasonable apprehension/ Knowledge OR Fear-- Awareness or anticipation required, actual fear NOT required!!


3) Of Imminent battery--Words alone insufficient, but conduct and words may give rise to imminence

False Imprisonment 1) Intent 2) Cause 3) Act of Restraint-- a) threats = Restraint b) failure to act may be restraint if legal duty exists to release c) time of restraint irrelevant d) P must be aware of confinement or harm results 4) P confined to bounded area-- Can be no reasonable means of escape known to P AND way out can't be dangerous, disgusting, humiliating, hidden

IIED
1) Intent


2) Cause


3) Extreme or Outrageous Conduct that exceeds all bounds of decency tolerated in civilized society--- a) mere insults not enough b) typical outrageous conduct: repetitive conduct, D is common carrier/innkeeper, or P is part of fragile class (kids, elderly, pregnant women, hypersensitive adults where D is aware of sensitivities


4) Severe emotional distress 5) Actual damages required

IIED and Bystander
3rd party has severe emotional distress from D's conduct, P must prove


1) They were present when injury occurred


2) Resulted in bodily harm (zone of danger) or P is close relative to 3rd person and perceived incident

Trespass to Land


1) Physical invasion by person-- a) Awareness of trespass not required, but deliberate act IS REQUIRED b) May be tangible object c) No damage required


2) Of P's land/ Real estate--Land includes air above and soil below to reasonable distance

Trespass to Chattel
1) Intentional interference w/ P's personal property that warrants defendant pay damages


a) acts as remedy to vandalism


b) small harm= trespass to chattel

Conversion Intentional interference with P's personal property so serious it warrants defendant pay property's full value a) acts as remedy to theft b) big harm= conversion c) operates as forced sale

Consent-- Affirmative Defense Must have capacity to consent 1) Intoxication may nullify consent 2) Kids have limited consent for age appropriate activities 3) Mental Defect- may have valid consnet for appropriate activities

Express Consent: Oral or written words giving permission

Implied Consent 1) custom/usage: reasonable person would infer consent from customs ( objective standard) 2) P's conduct/ body language implies permission

Exception: a) Fraud / Duress b) Scope- exceeding scope of consent results in liability.

Privileges

Self Defense


1) Reasonable belief they are or about to be attacked


2) Majority- No duty to retreat


3) Modern- Duty to retreat before using DF, unless in home


4) SF not available to initial aggressor unless other party responds to aggressors' non deadly force by using DF


5) SF may extend to 3rd party, but actor may be liable to 3rd person


6) Reasonable mistake OK


7) May only use enough force to prevent harm!

Defense of Others: 1) Reasonable belief 2) Reasonable mistake ok 3) May only use enough force that actual person being threatened can use

Defense of Property 1) Reasonable force to prevent tort against prop 2) Does NOT apply to tort already committed, unless in hot pursuit b/c still in process 3) NO deadly force to defend prop 4) Reasonable mistake ok 5) Reasonable force okay

Shop Keeper Rule Shopkeeper can detain suspected thief if: 1) reasonable belief of theft 2) Detention done on reasonable manner and NO deadly force 3) Only for reasonable time and for investigatory purpose

Defense to Property Tort

Public Necessity Emergency situation where D acts to protect community a) acts as absolute defense b) must be imminent public disaster

Private Necessity Action to prevent harm to limited # of people/self a) D must pay compensatory damages b) limited/qualified defense c) not liable for nominal or punitive damage for trespass because D has privilege to enter e) can take shelter for as long as emergency continues aka right of sanctuary

Foreseeable Plaintiffs

Rescuer: Rescuer foreseeable when D negligently puts himself or others in danger

Firefighter rule: FF/police barred from recovery for injury caused by risk inherent in the jobs

3rd Party may be foreseeable P when in zone of danger- Duty owed to those in zone of danger and physical zone depends on type of activity

Negligent Inflcition Emotional Distress- No physical harm

Standard of Care

Default Standard of Care: 1) D has duty to act as reasonably prudent person under similar circumstances 2) D owes duty to all foreseeable victims endangered by negligent act 3) Objective standard 4) Mental deficiency NOT considered 5) But if D has special knowledge/skill, he must use skill in exercising care 6) Reasonably prudent person has same physical characteristics as D if relevant to claim

Kids SOC
1) Under age 5- no standard
2) Age 5-18- Standard of kid w/ similar age, experience, intelligence
3) Subjective standard (pro defense)

  • Exception: If kid engaged in adult activity = reasonably prudent standard

Professional SOC 1) Knowledge/skill of average professional in field in good standing 2) Dr. must disclose risks associated with trx so pt. can give informed consent and duty breached if reasonable pt. would revoke consent if they knew of the risks 3) Compare to real world colleagues or use nat'l standard

Property SOC- Based on status of entrant Rules to protect against dangerous conditions but for activities on land- use ordinary reasonable person standard

Unknown Trespassers: NO DUTY to unknown/undiscovered trespasser

  • No permission and owner doesn't know they are there

Known Trespasser: Discovered OR anticipated trespasser- Owner must warn or make safe conditions that: 1) Artificial 2) Very Dangerous 3) Hidden AND 4) Known to the owenr in advance

Licensee: Guest has permission to enter and does NOT financially benefit owner.


Duty exists if: 1) danger hidden from licensee 2) Owner knows about it 3) But NO DUTY to inspect

Invitee: Enters land w/ permission for benefit of the owner. Duty exists if: Danger hidden from invitee 2) known to owner OR 3) could be discovered by reasonable inspection

Attractive Nuisance: Duty to use ordinary care to avoid foreseeable risk of harm to kids caused by artificial dangers. Required Elements: 1) Dangerous condition owner is or should know of 2) Owner knows or should know kids may trespass 3) Likely to cause injury 4) Cost to fix minimal compared to high risk

How to Eliminate Liability 1) Eliminate hazard by repair, removal, replacement 2) Warn of danger 3) Special entrants have implied consent (FF/Police- risks inherent in job)

Statutory Standard of Care

Negligence Per Se: Duty imposed by law providing criminal penalties and may replace CL IF: 1) Plaintiff in protected class and 2) law designed to prevent the type of harm suffered by plaintiff

Violation of law establsihes DUTY and BREACH

Exceptions 1) Compliance w/law would be more dangerous 2) Compliance w/law impossible

Duty to Act

No duty to Act/ Rescue- but if person decides to act, they must do so as reasonably prudent person in circumstance or if D causes the peril, he has duty

Special Relationship may create duty to act: Employee/er, parent/child, innkeeper/guest, common carrier, shopkeeper OR WHEN D CAUSES PERIL

Good Samaritan Law: Protects negligent rescuers from liability

Near Miss- FEAR 1) Negligence 2) P in zone pf physical danger 3) P suffers physical symptom from distress

Bystander Case: D negligently injures 3rd party causing P emotional distress/grief. Requires 1) Negligent act 2) Close relationship 3) P @ scene and observed or percieved event

Biz Relationship Case: P has claim if highly foreseeable that D's careless/reckless actions will produce emotional distress

  • Example: Patient /medical lab mistake or Funeral parlour botch

Res Ipsa Loquitur:
Used when P lacks information re: D's breach. Substitute for direct evidence of negligence and P must show:


1) Accident normally associated w/negligence and


2) Accident normally due to negligence in D's position or D had exclusive control over event causing damage


  • No direct verdict allowed- must be jury decision

Merged Cause: Two defendant's acting independently each commit breach that combine into single indivisible harm --use substantial factor test

Substantial Factor Test: D liable if breach contributed in substanital way to injury - jury decision


1) if breach would be enough to cause the entire harm by itslef, then its a substantial factor



2) Merged cause- Both breaches found to be substantial factors = D's held jointly/severally liable

Unascertainable Cause


1) Multiple acts, only one of which caused the injury, but unknown which one


2) Shifts burden of proof to defendants and they must prove they were not responsible

Foreseeability Test: Ask was harm a foreseeable risk associated with breach? Guidelines: passage of time, geographic distance, prior occurrence

Superseding Intervening Force: Events that create unforeseeable results and supersede the original negligent act. Break the causal chain and relieves D from liabilty

Foreseeable Intervening Force: 1) Med mal practice 2) Negligence of rescuers 3) Protection/Reaction to D's negligent conduct 4) Disease/accident resulting from OG injury 5) D may be laible when his negligence increases risk from harm of intervening force like a) negligent act of 3rd party 2) crime/intentional tort of 3rd part 3) act of God

Eggshell Skull Doctrine- "Take your client as you find them" If P satisfies all other elements of claim, P gets all damages suffered even if great in scope

Property Damages No damages for emotional harm from prop damage or hurt /killed pets

Punitive Damage: No punitive Damage for negligence unless 1) wanton /willful 2) Reckless 3) Malicious

Domesticated Animals: No strict liability except if knowledge of dangerous propensities


  • No strict liability for trespassers

Wild Animals: Strict Liability Applies, even if harmless