MBE Torts

Intentional Torts: Prima Facie Case:

(1) Act by Defendant: Requires some volitional movement (2) Intent: Acting with some desire to bring a specific harm (specific) OR acting with substantial certainty that tortious conduct will result from Defendant's act (general) (3) Causation: Defendant's conduct must be a substantial factor in bringing about the resulting harm Plaintiff's super sensitivities are not to be taken into account unless the defendant knew of them in advance. EVERYONE can be liable for INTENTIONAL torts, no such thing as lacking capacity for intent.

Intentional Infliction of Emotional Distress (IIED)

*Fallback position to use when other torts are unavailable. IIED is extreme and outrageous conduct by Defendant causing Plaintiff's severe emotional distress. Elements: (1) Extreme and Outrageous Conduct by D Conduct is outrageous when it exceeds the bounds of decency in society, mere insults alone are insufficient Non-outrageous conduct MAY be actionable if: a) D TARGETS P's known sensitivity or weakness; b) D's conduct is CONTINUOUS or REPETITIVE; c) D targets a P who is a member of a "FRAGILE" class (e.g. elderly, children, pregnant women) not based in super sensitivities; OR d) D is a COMMON CARRIER or INNKEEPER (P must be a passenger or guest) (2) Severe Emotional Distress in P P must suffer severe emotional distress from D's conduct, physical symptoms are NOT necessary NOTE: Watch for facts indicating extreme/outrageous conduct but P is unbothered, not IIED (3) Intent or Recklessness Recklessness: D disregards the likelihood consequences of his acts (4) Causation Transferred intent is not available for IIED.

DIGNITARY TORTS

1) Appropriation & False Light 2) Intrusion Upon Seclusion & Disclosure 3) Defamation 4) Defamation: Constitutional Considerations 5) Defamation: Damages Considerations 6) Defamation: Defenses 7) Wrong Legal Proceedings: Malicious Prosecution & Abuse of Process

DEFENSES TO INTENTIONAL TORTS

1) Consent 2) Self Defense 3) Defense of Others 4) Defense of Property 5) Necessity 6) Recapture of Chattels

ECONOMIC TORTS

1) Misrepresentation 2) Intentional Interference with Business Relations

NEGLIGENCE

1) Negligence: Elements and Standards 2) Duty of Care 3) Specialized Standards of Care 4) Statutory Standard of Care (Negligence Per Se) 5) Duty of Care for Owners & Occupiers of Land to Trespassers 6) Duty of Care for Owners & Occupiers of Land to Licensees & Invitees 7) Breach of Duty 8) Actual Cause 9) Proximate Cause 10) Damages 11) Affirmative Defenses (Comparative and Contributory Negligence, Assumption of Risk) 12) Negligent Infliction of Emotional Distress

STRICT LIABILITY

1) Prima Facie Case 2) Abnormally Dangerous Conditions 3) Animal Conduct

INTENTIONAL TORTS

1) Prima Facie Case 2) Transferred Intent Doctrine 3) Assault 4) Battery 5) False Imprisonment 6) Intentional Infliction of Emotional Distress 7) Bystander Claims for Emotional Distress 8) Trespass to Land 9) Trespass to Chattel 10) Conversion

PRODUCTS LIABILITY

1) Strict Liability 2) Types of Product Defects 3) Negligence Theory 4) Implied Warranties 5) Liability Based on Representation

LIABILITY ISSUES

1) Vicarious Liability 2) Joint & Several Liability 3) Contributions 4) Indemnity

Defamation: Constitutional Considerations

1st Amendment consideration arise when defamation involves a public figure, public official, and/or a matter of public concern Public Figures, Public Officials, and Maters of Public Concern: Public Figure = One who has pervasive fame or notoriety, or who voluntarily assumes a central role in a public matter Public Official = Public office holder Mater of Public Concern: Statement relates to a community interests or concern (includes national interests) Additional Elements: IF defamation involves a matter of PUBLIC CONCERN, Plaintiff must prove: (1) Falsity: Plaintiff must prove the statement was false; AND (2) Fault: Plaintiff must prove Defendant was at fault; standards different for public vs. private figures: Public Official/Figure: Actual Malice Standard (knowledge of the statements falsity or reckless disregard to whether it was false) Private Figure: Negligence Standard NOTE: For Defamation involving private figures and private matters, there is a no fault standard at CL

Contributions

A Defendant who pays more than her share of damages under joint and several liability can assert a claim against jointly liable parties for the excess paid. Contribution is usually imposed in proportion to relative fault, as opposed to proportional shares. This is NOT applicable to intentional tort liability

Bystander Claims for Emotional Distress

A bystander CLOSELY RELATED to a person physically injured or killed by Defendant's conduct may recover for emotional distress. General Rule: There is no recover, unless-Elements: (1) D's conduct seriously injured or killed a 3rd person D's conduct can be negligent or intentional Injury can result from product defect Bystander recovery is not available for medical malpractice (2) P is closely related to the injure person-NOTE: This element is NOT required if P shows that D had a design or purpose to cause P sever distress (3) P was present when the injury occurred: P must clearly witness the injury-causing event (4) D knew elements (2) and (3) (5) P suffers severe emotional distress Physical manifestation is NOT required NOTE: Compare to the related tort of NIED

Duty of Care

A duty is an act or omission. Defendant owes a duty of care to all FORESEEABLE victims of his activities. Plaintiff must prove duty and specify. Default Duty of Care: Defendant has a duty to behave like a reasonably prudent person (RPP) under the circumstances. This is a harsh and rigid standard, often the defendant does not rise to this standard. This is an OBJECTIVE standard RPP is considered to be someone with D's physical characteristics, but with the knowledge and mental capacity of an ordinary person. Foreseeable Victims: The majority rule (Cardozo) states that defendant is only liable to plaintiff who are within the zone of foreseeable danger. This is almost everybody. The zone of danger is the area about D's activities in which a P could foreseeably be injured. Rescuer's Exception: If Defendant puts himself or another in danger and a third person attempts to rescue, Defendant CAN be held liable for the rescuers injuries, even if unforeseeable. Does NOT apply to police or firefighters Prenatal Injury: A duty of care is owed to a viable fetus Intended Economic Beneficiaries: A duty of care is owed to 3rd party beneficiaries if their harm is foreseeable

Strict Liability: Abnormally Dangerous Activities

Abnormally dangerous activity or ultrahazardous activities or conditions give rise to strict liability for any resulting injuries. Plaintiff must prove: (1) The condition or activity imposes a severe risk of harm to persons or property (2) It cannot be made reasonably safe (cannot be performed without a serious risk of harm) (3) The condition or activity is uncommon in the community (this often arises on the MBE with explosive, toxic, and/or biohazardous materials) Injury must result from the abnormally dangerous activity. Watch for fact patterns where abnormally dangerous conditions exits, but do not cause Plaintiff's injury. E.g. truck carrying toxic wast in sealed containers, which fall and crash into P's car but do not spill. No SL because the abnormally dangerous nature of the containers did not cause P's injury.

Abuse of Process

Abuse of process arises when Defendant uses the legal system as an ulterior purpose to threaten or act against Plaintiff. Elements: (1) Wrongful uses of process for an ulterior purpose (2) Definite act or threat against Plaintiff to accomplish ulterior purpose

Statutory Standard of Care (Negligence Per Se)

An existing statute may establish a duty of care, in which case the specific duty imposed by the statue will replace the general common law duty of care. Requirements: 1) the statute provides a criminal penalty 2) standard of conduct is clearly defined in the statute 3) P is within the class of people the statute was designed to protect 4) the statute was designed to protect against the type of harm P suffered Negligence per se-the violation of the statute means P must only prove causation, not breach of duty Compliance with statue does not automatically clear Defendant of liability. Statutory standard of care does NOT apply if: (a) Compliance is more dangerous than noncompliance (b) Compliance is impossible under the circumstances

Appropriation

Appropriation is an invasion of privacy tort that exists when Defendant uses Plaintiff's name or likeness for commercial purposes (e.g. promotion or advertisement) without Plaintiff's consent Newsworthiness Exception: There is no liability for use of Plaintiff's name or likeness for the purpose of reporting news

Assault

Assault is an intention act by Defendant creating Plaintiff's reasonable apprehension of immediate harmful or offensive contact to Plaintiff's person. This is also considered an attempted battery. Elements: (1) Act by D creates a Reasonable Apprehension in P (apprehension is not fear or intimidation) "Reasonable apprehension" means P has knowledge of D's act and an expectation that it will result in immediate H/O contact to P's person. Apprehension must be reasonable, does not have to be fear Beware of fact patterns where D appears incapable of accomplishing threatened harm. APPARENT ABILITY is sufficient, as long as it could reasonably create P's apprehension. TIP: Look for P's knowledge (2) Of Immediate Harmful or Offensive Contact to P's Person P must apprehend an immediate or imminent battery Words or threats of future battery are usually insufficient, unless coupled with some overt act (e.g. picking up a weapon, clenching fists, etc.) Words coupled with conduct can also undo conduct and any reasonable apprehension. (3) Intent (4) Causation If battery and assault both work on the same fact pattern, choose battery.

Battery

Battery is an intentional harmful or offensive contact to Plaintiffs' person by Defendant. Elements: (1) Harmful or Offensive Contact by D (that is unpermitted) Reasonable Person Standard: Would a reasonable person think the contact is H/O? Plaintiff's super sensitivities are not to be taken into account unless the defendant knew of them. (2) To P's Person: Includes anything connected to P's person (e.g. P's hat) (3) Intent (4) Causation Indirect contact is sufficient e.g. causing the force that gives rise to the H/O contact E.g. Greasing a floor so that P will slip and fall If battery and assault both work on the same fact pattern, choose battery.

Specialized Standards of Care

Children: Children are held to the standard of care of a like child of similar age, education, intelligence and experience (subjective test) under same or similar circumstances. Generally, children under 7 lack capacity to be held negligent. Children from ages to 7 to 13 are presumed to be incapable of negligence, but this is rebuttable. Children ages 14 and up are presumed to be capable of negligence, but this is rebuttable. EXCEPTION: If a child is engaged in ADULT ACTIVITY, the standard would be that of a RPP (adult standard). Common Carriers & Innkeepers: Common carriers & innkeepers are held to an "utmost care" standard. They are liable for even slight negligence of passengers or guests Custom or Usage in an Industry: Custom or usage in an industry can be used to ESTABLISH a standard of care, but failure to adhere does not automatically give rise to a breach of duty Professionals: Professionals are expected to act with the care of an average member of the profession in good standing in similar circumstances. Specialists (e.g. neurosurgeons) are held to a national standard of care. The profession, not the community set the standard. This standard is proven by expert testimony. Owners/Occupiers of Land Statutory Standard of Care

Affirmative Defenses: (Comparative and Contributory Negligence, Assumption of the Risk)

Comparative Negligence: Defendant can establish that Plaintiff's injuries are at least partially the result of Plaintiff's own negligence. The court apportions fault between Plaintiff and Defendant and REDUCES Plaintiff's recoverable damages accordingly Partial/Modified Comparative Negligence: Plaintiff can only recover damages if he was less than or equal to 50% at fault Pure Comparative Negligence: Plaintiff recovers regardless of fault, even if greater than 50% at fault. Jury can deduct percentage of Plaintiff's fault in award **STANDARD TO ASSUME ON MBE** Comparative negligence supplants all other affirmative defenses except express assumption of the risk. Contributory Negligence: Plaintiff is BARRED from recovery if Defendant establishes that Plaintiff negligence contributed to her injuries. Plaintiff should use relevant defree of care for his or her safety. Last Clear Chance: Plaintiff can rebut Defendant's contributory negligence claim by alleging that Defendant had the last clear chance to avoid the injury-causing accident Assumption of the Risk: Defendant can deny Plaintiff's recovery by establishing that Plaintiff assumed the risk of damaged caused by Defendant's act. For implied assumption of the risk, defendant must show: (1) Plaintiff knew or should have known the risk (objective standard) and (2) Plaintiff voluntarily proceeded in the face of that risk. For express assumption of the risk, it must be shown in writing or stated, the only exception is public policy. Absence of alternative destroys voluntariness. Emergency situations destroy voluntariness. Courts are moving from assumption of the risk and contributory negligence standard to comparative negligence. Defenses vary by state and MBE questions usually note what defense applies, otherwise assume pure comparative negligence.

Defense to Intentional Torts: Consent

Consent is a defense to ALL intentional torts. If Plaintiff consents to Defendant's otherwise tortuous conduct, Defendant is not liable for the act. Legal capacity is required, Plaintiff must be capable of consenting (e.g drunks, mentally impaired, and young children are incapableof consenting to tortious conduct) Express Consent: Plaintiff gives Defendant VERBAL or WRITTEN consent. Express consent is NEGATED (invalid) by duress, fraud or mistake Implied Consent: Defendant can reasonably infer Plaintiff's consent based on CUSTOM or P's observable CONDUCT. Often arises if P participates in activity or goes to a place where minor torts are common (e.g. if P plays tackle football, P have given implied consent to certain forms of battery) Facts must indicate that based on P's objective conduct, D was readable in interpreting P's consent Scope of Consent: All consent has scope. Scope of consent indicates usual behavior under those circumstances. Defendant CAN be liable for conduct that EXCEEDS the scope of P's valid consent (express or implied).

Defenses to Defamation

Consent, truth and privilege may be valid defenses to defamation. Consent (express or implied): E.g P may consent to an organization investigating her and sharing its findings with potential employers Truth: Truth is a COMPLETE defense to a defamation claim Privilege: There are 2 kinds of privileges absolute and qualified privileges (1) Absolute Privilege: Protects communications by (a) spouses and (b) govt. officials in their official capacity (2) Qualified Privilege: Defendant's liability for defamatory statements is limited if the purpose of the speech is to promote truthfulness and/or related to a fair comment and criticism. (E.g. Letter of recommendation, employment reference, book review, accurate reports of public proceedings)

Conversion

Conversion is SIGNIFICANT interference or DAMAGE to Plaintiff's right of possession in tangible personal property (chattel) that justifies Defendant paying the chattel's full value: Elements: (1) D Interferes with P's Right of Possession in Tangible Personal Property Interference usually occurs through dispossession (depriving P of his possessory rights in chattel) or intermeddling (damaging P's chattel) Significant interference or damage that justifies D paying the chattel's full value. A longer and/or more damaging use of P's chattel gives rise to conversion (2) Intent (3) Causation (4) Damages: P must have some lose of use P may recover full market value at the time of conversion or repossess the chattel (replevin)

Defamation: Damages Considerations

Defamation damages depend on whether the defamatory statement was libel, slander, or slander per se Libel: Libel is a WRITTEN or embodied in a permanent format defamatory statement. TV and radio broadcasts are considered libel. Plaintiff does NOT have to prove special damages, damages are presumed. Slander: Slander is a spoken defamatory statement. Plaintiff must prove special damages (specific economic loss) unless the statement constitutes slander per se Slander per se is a defamatory statement that ether: (1) Concerns and adversely reflects on Plaintiff's business or professional reputation; OR (2) Claims that Plaintiff has a loathsome disease; OR (3) Claims that Plaintiff committed a crime of moral turpitude; OR (4) Imputes a woman's chastity (trend is moving to ignore gender bias by removing exception or permitting it to men)

Defamation

Defamation is a statement concerning Plaintiff, made by Defendant to a third person, that is harmful to Plaintiff's reputation. If statement involves a matter of public concern or a public figure or official, falsity and fault may be required. Elements: (1) Defamatory Statement: Adversely affects Plaintiff's reputation. Must be based on specific facts (2) Concerning P: Must be reasonably understood that the statement concerns a LIVING Plaintiff or a very small group of Plaintiffs (3) Publication: The statement must be intentionally or negligently made to a third person. (4) Harmful to P's Reputation (5) Falsity & Fault: ONLY required if statement involves a matter of public concern, figure or official Liability for Republication: The REPUBLISHER of a defamatory statement is liable to the same event as the original publisher Damages: Plaintiff's burden in proving damages depends on whether the defamatory statement is LIBEL or SLANDER

Liability Based on Representation

Defendant may be liable if a product falls short of an affirmative representation made to buyer Express Warranty: A statement of fact or promise regarding goods sold that becomes part of the basis of the bargain. Any consume or bystander can sue for breach. Bystanders need not have relied on the express warranty, as long as the original purchasers did. Elements: (1) Express Warranty: Relied upon by purchaser (2) Breach: Product fails to live up to warranty (3) Causation: Actual and Proximate (4) Damages: Personal, Property and Economic loss Defenses: Assumption of the Risk, Comparative and Contributory Negligence Misrepresentation of Fact: A seller will be liable for any misrepresentation made in the course of a sale if: (1) Seller made a misrepresentation based on a MATERIAL fact concerning the QUALITY or USE of the goods (2) Seller intend to induce reliance by buyer (3) The misrepresentation induced justifiable reliance Defenses: No Assumption of the Risk, Contributory Negligence IF misrepresentation was negligent, not intentional

Defense to Intentional Torts: Defense of Property

Defense of property is available to prevent tort against property. Defense of Property requires: (1) Reasonable Belief: Defendant must reasonably believe a tort is being or about to be committed (believed in danger) (2) Proper Timing: Tort must be in progress or imminent (3) Reasonable Force: Force must be appropriate to threat of harm. Deadly force is NEVER permitted to protect property alone Unavailable if initial actor had privilege to enter land (e.g. recapturing chattels) Reasonable mistake ONLY allowed as to whether an intrusion occurred, NOT whether privilege existed D must request that interference stop before using force unless doing so would be futile or dangerous

Disclosure

Disclosure is an invasion of privacy tort that is a widespread dissemination of CONFIDENTIAL information about the Plaintiff that wold be highly offensive to a reasonable person. Disclosure must be: (1) Highly offensive to a reasonable person; AND Public activities are not objectionable E.g. D announces the mayor frequents strip clubs, no liability because the acts occur in public (2) Publicized: Made available to public audience Widespread dissemination of factually accurate information that would normally be confidential, and disclosure of which would be highly offensive to a reasonable person. Newsworthiness Exception: Theres is no liability if private facts are newsworthy. Investigative journalism involves getting confidential information

Products Liability: Strict Liability

Elements: (1) Defendant is a Merchant Merchants have a strict duty to supply safe goods Merchant is one who routinely deals in the product sold, including any merchant in the stream of commerce e..g manufacturer, distributor, supplier Casual sellers, service providers are NOT merchants (2) Product is Defective: Defect must make product unreasonably dangerous (3) Product is unaltered since leaving Defendant's control (4) Plaintiff used the product in a foreseeable manner Plaintiff's misuse of the product can be foreseeable Who Can Sue: foreseeable users or bystanders e.g. buyers as well as their guests, employees, family, etc. Damages: Plaintiff can recover for physical injury or property damage, but NOT solely for economic loss

Negligence: Elements and Standards

Elements: (1) Duty of Care (2) Breach of Duty (3) Causation: Actual ("cause-in-fact" or "factual cause") and Proximate ("legal cause") (4) Damages Negligence is analyzed under an objective standard by comparing Defendant's actions to a reasonable person under similar circumstances (i.e., negligence law assesses D's behavior based on the common judgment of a collective people). Assess Defendant's behavior given the circumstance under which she acted.

Actual Cause

Establishes a causal connection between the alleged breach of duty and the resulting injury. Plaintiff must show that Defendant's breach was the cause of his injuries. "But for" Test-but for D's alleged breach of duty, P's injury would not have occurred Substantial Factor Test (multiple causes of P's injury): When multiple causes bring about Plaintiff's injury and any one of them alone would have cause the injury (commingled cause). Defendant's breach is the actual cause IF it was a substantial factor in bringing about Plaintiff's injury e.g. Fire starts on D1's land and D2's land, each of which spreads to P's land and destroy's P's house Burden-Shifting Test (for several possible causes of P's injury): If MULTIPLE Defendant's act (often simultaneously), only one causes Plaintiff's injury, but it is unclear which Defendant caused the injury, the burden of proving actual cause SHIFTS to the Defendant's. If NO Defendant can prove another Defendant as responsible, all Defendant's are jointly and severally liable e.g. P is hit by a stray bullet at a busy firing range and it's unknown which shooter hit P. MBE may refer to actual cause as "cause in fact"

Proximate Cause

Establishes that it is fair under the law to hold D responsible for P's injury (can limit D's liability). Foreseeability is the measuring stick for proximate cause. D is liable for the foreseeable outcome of his conduct. D is only liable for harms within the risk of his activity. Direct Causes: If Plaintiff's injury is the DIRECT consequence of Defendant's negligent conduct, Defendant is liable unless the outcome is unusually bizarre or unpredictable Indirect/Intervening Causes: Where contributing acts occur between Defendant's conduct and Plaintiff's injuries, Defendants liable if the injury could have possibly resulted even without the intervening forces. Consider the type of harm being protected against by holding D negligent for his conduct. If P's resulting injury is the type of harm being protected against, D's conduct is the foreseeable, legal cause of P's injury. "Eggshell Plaintiff Rule": Defendant takes Plaintiff has he finds him and is liable for the full extend of Plaintiff's injuries, regardless of whether they are foreseeable. Cases in which an intervening cause will almost never cut off liability (assumed foreseeability): subsequent medical malpractice; negligent rescue; reaction forces; subsequent diseases or accidents. In these cases, the D is almost always liable. Cases in which an intervening cause will not cut off liability if D can anticipate cause: negligence of third parties; criminal conduct; acts of God. In these cases, if unforeseeable, D's liability is cut off.

False Imprisonment

False imprisonment is an act or failure to act by Defendant resulting in Plaintiff's restraint or confinement in a bounded area. Elements: (1) Act (or omission) resulting in P's restraint or confinement Restraint or confinement does NOT have to be physical e.g. threats force, invalid use of legal authority Duration is NOT important; brief confinement will suffice . Confinement's length of time is irrelevant. Inaction is enough if there was understanding the defendant would act for the plaintiff's benefit. (2) P is confined to a bounded area P must be AWARE of or HARMED by the confinement P's freedom of movement must be LIMITED There must be no reasonable means of escape that P is aware of. If a reasonable person could get out (e.g., by opening an unlocked door), no false imprisonment. Must be more than a mere inconvenience. (3) Intent (4) Causation Shopkeeper's Privilege (Defense): A store may detain a suspected thief if: 1) Store has reasonable cause to believe theft occurred 2) Store detains suspect for a only a reasonable time period and for purposes of investigation 3) Detention must be reasonable; only non-deadly force allowed Shopkeeper may be held liable for any harm caused by act exceeding the privilege.

False Light

False light is an invasion of privacy tort that is a widespread publication of FALSEHOOD or MATERIAL MISREPRESENTATION about Plaintiff that would be highly offensive to a reasonable person. This includes mischaracterizations of Plaintiff's views or conduct. Matters of Public Concern: D must have actual malice or reckless disregard for the truth of the matter publicized. This is the same as the constitutional considerations for defamation. There is no newsworthiness exception.

Immunity

Family immunity is not really allowable today. There is no immunity when the gov't is engaged in a proprietary function. Gov't retains immunity when engaging in a discretionary activity (traditional gov't activity). Charitable immunity has been abolished in most jurisdictions.

Defense to Intentional Torts: Defense of Others

For defense of others, Defendant steps in the shoes of the intended target. Defense of Others requires: (1) Reasonable Belief: Defendant must reasonably believe a tort is being or about to be committed (believed in danger) (2) Proper Timing: Tort must be in progress or imminent (3) Reasonable Force: Force must be appropriate to threat of harm. Deadly force is permitted if Defendant believes a life in danger D may NOT use greater force than the intended target could have reasonably used Reasonable mistake by D is ALLOWED (this trend is changing). The modern trend requires retreat before using deadly force unless one is in their home.

Implied Warranties

Implied in every say of goods is a warranty of merchantability and a warranty of fitness for particular purpose (if applicable). Elements: (1) Warranty: Existence of an implied warranty (2) Breach: Product fails to live up to applicable warranty (3) Causation: Actual and Proximate (4) Damages: Personal, Property, and Economic are ALL recoverable Implied Warranty of Merchantability: A seller warrants that goods are of average acceptable quantity (i.e. without defect) and generally fit for their ordinary purpose Implied Warranty of Fitness for Particular Purpose: If a seller (a) knows or has reason to know the particular PURPOSE for which buyer is purchasing and (b) buyer RELIES on seller's skills or judgment, seller implies that goods are fit for that purpose Who Can Sue: All reasonably foreseeable users can sue for personal injuries arising from breach of an implied warranty Defenses: Assumption of the Risk, Contributory and Comparative Negligence

Indemnity

Indemnity involves shifting the entire loss between or amongst Defendant's. This is available by contract, in vicarious liability situations, or under strict products liability

Misrepresentation

Intentional Misrepresentation (fraud, deceit) is also known as affirmative misrepresentation Elements: (1) D misrepresents a past or present material fact (affirmative misrepresentation by defendant, not silence) (2) D knows or believes the misrepresentation is false (3) D intends to induce P to act or refrain from acting in reliance on the misrepresentation (sicenter - statement must be material) (4) Actual reliance by P (causation): P must actually rely on the misrepresentation (5) Justifiable reliance by P: P must be justified in relying on misrepresentation (normally justifiable to rely on opinion of one who has superior skill or knowledge in subject matter of the transaction) (6) Damages: Must suffer monetary damages (no harm, no foul) Negligent Misrepresentation Elements: (1) D misrepresents a past or present material fact in a business or professional setting (commercial transactions) (2) Breach of duty of care owed to a particular P i.e. D knew P could rely on the misrepresentation (3) Actual and justifiable reliance by P (4) Damages: P must suffer monetary loss

Intentional Interference with Business Relations

Intentional interference with business relations arise when a third party interferes with an existing contract. This is an intentional action that causes a third person to breach an existing contract with P. Elements: (1) P has a valid contractual relationship or business expectancy: Includes contracts between P and a 3rd party (2) D has knowledge of the relationship or expectancy (3) D intentionally interferes with that relationship. Must be intentional, negligence is insufficient (4) D's interference causes a breach or termination in P's contract or expectancy (5) Damages Privilege Defenses: Defendant's conduct may be privileged when it is a proper attempt to obtain business or protect interests (e.g. competing for P's customers) Defendant may be more liable if interference with a plaintiff's contractual relations makes performance more difficult, even if interference doesn't cause a breach. Defendant may be liable for interfering with a Plaintiff's economic expectation of benefit from third persons, even in absence of a contract.

Intrusion upon Seclusion

Intrusion upon seclusion is an invasion of privacy tort that is an invasion of Plaintiff's physical seclusion in a manner that would be highly offensive to a reasonable person. Requires: (1) Plaintiff have a reasonable expectation of privacy. There is no reasonable expectation of privacy in public (2) Intrusion must be highly offensive e.g. peeping, eavesdropping, or using hidden camera's in P's domain. There is no newsworthiness exception. If the actions do not fit into this claim, raise IIED.

Joint & Several Liability

Joint and Several liability arises if the acts of two or more Defendant's combine to produce a single indivisible injury. Each Defendant is jointly and severally liable for the entire harm if his actions were a factor in bringing about Plaintiff's injury. There must be concert of action and indivisible harm. If Plaintiff recovers fully from one Defendant, she may not recover more from a jointly liable Defendant

Duty of Care for Owners & Occupiers of Land to Licensees & Invitees

Licensee is one who enters land with owner's permission for his own purpose or business (e.g. relatives, friends, social guests). Possessors of land must protect licensees from ALL KNOWN traps on the property Invitee is one who enters land help open to the public or who enters with owner's permission to confer a commercial benefit (e.g. store patron, concert goer, door-to-door salesman, etc.) The duty of care owed to licensees and invitees: For activities carried out on property-reasonable care For known dangerous conditions-duty to warn or make safe (satisfy legal obligation by repairing condition or giving warning) Duty to inspect-n/a for licensees; for invitees, owners have duty to conduct a reasonable inspection for non-obvious dangers and make them safe (NOTE: this is the only significant difference between duties for licensees and invitees) Scope of duty is limited by the scope of the invitation or license. The owner's duty extends only to those areas where one is an invitee or licensee (e.g., store owner does not owe duty of care in employees-only area). Police and firefighters are considered licensees, but cannot recover for injuries suffered on the job. If entrant is injured by an open and obvious condition, entrant will almost always lose the negligence lawsuit.

Introduction

MAIN QUESTION: Is this defendant going to be liable to this plaintiff for the tort at issue? SUBQUESTIONS: Can the plaintiff prove the elements of the prima facie case/tort at issue? Are there any good affirmative defenses?

Malicious Prosecution

Malicious prosecution arrises when Defendant initiates a frivolous charge or claim against Plaintiff with an improper purpose (e.g. filing a false police report) without probable cause. Elements: (1) Defendant commenced a prior criminal or civil legal proceeding against Plaintiff NOTE: Prosecutors are Immune (2) Proceeding terminated in Plaintiff's favor (3) No probable cause for the original proceeding D knew P was not guilty (criminal) or liable (civil) or had insufficient facts to reasonably believe in P's guilt or fault (4) Defendant hadn't an improper purpose in initiating the proceeding (5) Damages

Types of Products Defects

Manufacturing Defect: A product departs from its intended design, causing it to be more dangerous than designed. Plaintiff must show the the product failed to conform as safely as an ordinary consumer would expect Design Defect: A product creates an unreasonable risk of danger due to its faulty design. Plaintiff must sow that a hypothetical alternative design exists that is safer, but has comparable cost and purpose Inadequate Warning Defect: The manufacture fails to adequately warn of a non-obvious risk associated with the products use. Manufacturer also has a duty to warn of foreseeable dangers from misuse of the product. Plaintiff must show that the product has a risk that: (1) Cannot be eliminated by redesign; AND (2) Consumers would not ordinarily notice If product cannot be made safe for its ordinary use (e.g. chainsaw, firearms) a manufacturer must give: (1) Proper instructions for use; AND (2) Adequate warnings of known dangers Defendant is NOT liable for risks that were unforeseeable at the time the product was marketed

Defense to Intentional Torts: Necessity

Necessity is a defense to a tort against PROPERTY (trespass to land, trespass to chattel, conversion) in which Defendant damages Plaintiff's property in an effort to AVOID greater danger. Necessity requires: (1) Defendant's interference wth P's property must be reasonably necessary to avoid and immediate threatened injury (2) Threatened injury must be more serious than the interference undertaken to avert it Public Necessity: Defendant's invasion of Plaintiff's property must be reasonably necessary to protect the COMMUNITY or a large group of people. Public necessity is an ABSOLUTE defense, Plaintiff CANNOT recover any damages Private Necessity: Defendant invades Plaintiff's property to protect an INDIVIDUAL or small group. Private necessity is a LIMITED defense, Plaintiff CAN recovery actual damages, but not punitive or nominal damages (unless D's act benefited P) Discipline Defense: parent and teachers can use reasonable force for discipline.

Duty of Care for Owners & Occupiers of Land to Trespassers

Owners and occupiers of land may have a duty of care for ANTICIPATED trespassers and CHILD trespassers. Unknown or Undiscovered Trespassers: no duty owed Anticipated Trespassers: Where an owner/occupier has a reason to believe of trespassers on her land they have duty to make safe or warn of any KNOWN, man-made, death traps on his land. The legal obligation is satisfied by repairing the condition or giving warning. For activities, owner has duty of reasonable care in carrying out activities on her property. *If entrant is injured by open and obvious condition, entrant will almost always lose negligence suit. Attractive Nuisance Doctrine for Child Trespassers: Owner/occupier must take reasonable care to eliminate dangers on her property OR protect children from those dangers if: (1) She is aware or should be aware of a dangerous condition (natural or artificial) on her property (2) She knows or should know children are in the vicinity (3) The condition is likely to cause injury if encountered (4) The magnitude of the risk outweighs its utility or the expense of remedying it

Strict Liability: Prima Facie Case

Plaintiff can establish Defendant's liability for Plaintiff's injuries without proving Defendant acted negligently. Strict liability is limited to cases involving: (1) products liability, (2) animal conduct and (3) ultra hazardous and/or abnormally dangerous activity/conditions Prima Facie Case: To succeed on a strict liability action, Plaintiff must prove: (1) The nature of Defendant's activity imposes an absolute duty to make safe (2) Causation: Actual and Proximate Dangerous aspects of D's activity caused P's injury (3) Damage to Plaintiff's person or property NOTE: No amount of due care will receive Defendant of liability under strict liability Defenses: Assumption of the Risk and Comparative Negligence

Products Liability: Negligence Theory

Plaintiff may establish liability for a product defect under the standard negligence theory. A product defect is almost always easier to establish under a strict liability theory. Elements: (1) Duty to Care: Each merchant in the stream of commerce owes a duty to all foreseeable product users and bystanders (2) Breach of Duty: Defendant's negligence leads to the supplying of a defective product. Retailers and wholesalers satisfy due care by a cursory inspection the product (this makes it difficult to hold them negligent for products defects) (3) Causation: Plaintiff must show actual and proximate cause NOTE: An intermediary's negligent failure to discover defect does not absolve upstream merchant of liability (4) Damages: Plaintiff must show physical injury or property damages. Economic loss alone is NOT recoverable Defenses: All standard negligence defenses are available

Negligent Infliction of Emotional Distress (NIED)

Plaintiff may recover for emotional distress resulting from Defendant's negligence, but ONLY if Plaintiff's emotional distress gives rise to some PHYSICAL manifestation. The general rule is no recovery, unless Elements: (1) Defendant's negligence results in a close risk of bodily harm to Plaintiff Plaintiff must be in the "zone of danger" to recover (i.e., D's act must have nearly caused physical harm to P) (2) Defendant's negligence results in Plaintiff's severe emotional distress (3) Plaintiff exhibits some physical manifestation attributable to her emotional distress E.g. heart attack, miscarriage Non-physical symptoms like depression or nightmares are insufficient Symptoms of physical manifestation can be instantaneous or appear days later Bystander Claims: Bystanders may be able to recover for emotional distress resulting from Defendant's negligence

Damages

Plaintiff must prove ACTUAL damages to his property or person. Nominal and economic damages are not available Compensatory Damages: Must be FUCC (foreseeable, unavoidable, certain and causal) Personal Injury: Defendant must compensate Plaintiff for all damages. Includes past, present, and prospective damages. Medical expenses, lost wages, decreased earning capacity, pain and suffering. Economic and non-economic damages are recoverable. Property Damage: Plaintiff can recover reasonable cost of repair. If the property is irreparable, damages are the full market value at the time the accident occurred. Punitive Damages: Are only recoverable if Defendant's conduct is wanton, willfully, reckless or malicious Plaintiff can NEVER recover for (1) interests form the date of damage in personal injury cases or (2) attorney fees. Plaintiff has a duty to take reasonable steps to mitigate damages.

Strict Liability: Animal Conduct

Property Damage from Trespassing Animals: Animal owners are strictly liable for reasonably foreseeable damage resulting from their animal's trespassing on another's property (1) Wild Animals: Owners are strictly liable to licensees and invitees for unprovoked personal injuries caused by their wild animals (2) Domestic Animals (pets and livestock): There is NO strict liability for personal injuries unless owners know of their animals dangerous propensities. E.g. If a dog has previously bitten people, its owner is strictly liable, but the negligence standard applies if this is the first time the dog has bitten someone (3) Trespassers are generally NOT entitled to recovery for personal injuries under strict liability

Defense to Intentional Torts: Recapture of Chattels

Recapture of chattels is a defense to trespass. DEFENDANT may use peaceful means to recover possession of chattel unlawfully taken. Limitations and Requirements: (1) D-owner must make a TIMELY DEMAND for return of chattel. D must be in hot pursuit, using only force necessary. EXCEPTION: Not required if making demand would be futile or dangerous (2) D-owner may recapture from original wrongdoer or a 3P who KNOWS the chattel was wrongfully obtained (3) Privilege to enter depends on WHO possess the property: Wrongdoer's Property: D-owner may enter at a REASONABLE TIME to reclaim chattel in a REASONABLE MANNER Innocent Person's Property: D-owener must first give NOTICE to landowner. If landowner refuses entry, D may enter at a reasonable time and in a peaceful manner. If D's chattel is on ANOTHER'S property through D's FAULT, D does NOT have a privilege to enter property (4) Use of Force: Reasonable force may be used to recapture chattel, but not deadly force or force sufficient to cause serious bodily injury Shopkeeper has privilege to detain shoplifter in a reasonable manner/force for a reasonable period of time.

Defense to Intentional Torts: Self-Defense

Self-Defense requires: (1) Reasonable Belief: Defendant must reasonably believe a tort is being or about to be committed (believed in danger) (2) Proper Timing: Tort must be in progress or imminent (3) Reasonable Force: Force must be appropriate to threat of harm. Deadly force is permitted if Defendant believes a life in danger There is no Duty to Retreat Reasonable Mistake by D is ALLOWED Only available to initial aggressor if D responds to non-deadly force with deadly force. The modern trend requires retreat before using deadly force unless one is in their home.

Affirmative Duty to Act Rule

There is no duty to rescue. EXCEPTIONS: a) D put P in peril b) Strong relationships (close family, common carrier or innkeeper, invitor and invitee) c) D must have actual ability and authority to control third person

NUISANCE

Tortious invasion of either public or private property rights. There are two types: private and public. Nuisance is a harm CAUSED by tort, not a tort itself. Private Nuisance: A substantial, unreasonable interference with another individuals's use or enjoyment of her property. Elements: (1) Substantial Interference: Interference must be offensive, annoying or inconvenient to the average person in the community. Interference is NOT substantial if Plaintiff is hypersensitive or using property for a specialized abnormal purpose (2) Unreasonable Interference: The severity of Plaintiff's injury must outweigh the utility of Defendant's conduct Public Nuisance: An unreasonable interference with health, safety or property rights of the community at large. Gov't usually brings public nuisance suits. Recovery is ONLY available to a private party if she suffered unique damage not suffered by the public at large. Potential Remedies: Money Damages, Injunctive Relief Defenses: (1) Plaintiff CANNOT recover if he "came to the nuisance" (e.g. bought property next door) for the sole purpose of bringing suit (2) Contributory negligence is available if Plaintiff asserts a negligence theory and acts negligently in creating the nuisance

Defenses to Products Liability

Traditional Jurisdiction: Conduct that is equivalent of contributory negligence will not bar recovery; conduct that is equivalent of assumption of the risk will bar recovery. Comparative Fault Jurisdiction: Apply comparative fault principles in strict products liability cases. When theory is negligence, not strict liability, let wholesalers and retailers off the hook. An adequate warning usually insulates a defendant from strict liability. When a question refers to a feasible alternative for making a product safer, it signals you should find defendant liable on a design defect theory. Foreseeable use is not the same as intended use. Additional parties do not change strict liability products analysis. If product use is incidental to performance of a service, strict liability is unavailable, try negligence instead.

Transferred Intent Doctrine

Transferred intent doctrine arises when Defendant acts with the intent to commit a given tort but: (a) Commits it against a DIFFERENT PERSON than intended; OR (b) Commits a DIFFERENT TORT than intended; OR (c) Both of the above Defendant's original liability transfers to the tort actually committed and/or person actually harmed, resulting in Defendant's liability Applies only to: 1) Assault 2) Battery 3) False Imprisonment 4) Trespass to Land 5) Trespass to Chattel

Trespass to Chattel

Trespass to chattel is intentional MINOR interference with Plaintiff's right of possession in tangible personal property (chattel). Elements: (1) D Interferes with P's Right of Possession in Tangible Personal Property (chattel) Interference usually occurs through dispossession (depriving P of his possessory rights in chattel) or intermeddling (damaging P's chattel) This is a minor interference or damage (2) Intent (3) Causation (4) Damages: P must have some loss of use P can recover cost of repair or rental value of chattel

Trespass to Land

Trespass to land is a physical invasion of Plaintiff's real property by Defendant. Elements: (1) Physical Invasion of P's Real Property by D: D enters P's property or propels an object on to it (e.g. D walks on P's property, throws ball onto P's property, chases someone onto P's property) D does NOT need to be aware he is crossing a boundary line Must be physical invasion, no intangible--invasions by light, sound, smell are NOT trespass (but may give rise to nuisance) P must have possession (actual or constructive), ownership not required P's real property includes surface space, airspace, and subterranean space to a reasonable distance (2) Intent: D does not need to know land belongs to another (3) Causation Damages are not required; compare to trespass to chattel and conversion

Vicarious Liability

Vicarious liability arises when Defendant commits a tort against Plaintiff and a third person is held liable due to his relationship with Defendant. But look for direct liability first, like negligent entrusting. Doctrine of respondeat superior: Employer's ARE liable for torts committed by employees within the scope of their employment. Intentional torts are usually outside the scope, unless: (a) The job requires use of force (e.g. bouncer) (b) The job entails creating friction (e.g. bail bondsman) (c) The intentional tort is done to further the employer's goals (e.g. physically breaking up a fight in a store) Think of the frolic v. detour rule for the scope of employment. Independent Contractors: Employers are generally NOT liable for torts committed by independent contractors, except for acts that are inherently dangerous or duties that are non delegable. There is a public policy exception to this rule. Partnership: Each partner IS vicariously liable for any other partner's torts committed within the scope of the partnership Parent-Child: Parents are NOT liable for their children's torts. But parents may be separately negligent if they had reason to know of a child's propensity to injure or facilitate the tort Tavernkeepers: Businesses serving alcohol MAY be held liable to a Plaintiff injured by an intoxicated patron if the business was negligent in serving the patron Automobile Owner-Automobile Driver: Generally, no liability. When the driver is performing an errand for the owner, agency rules apply. Family Car Rule: Owner is vicariously liable for any torts of any household member using car with owner permission. Permissive Use Rule: Owner is vicariously liable for torts of any person using car with permission.

Breach of Duty

When Defendant fails to conform to the standard of care he has breached his duty To demonstrate a breach, Plaintiff can argue (normally, P must point to specific conduct): (1) Defendant breached the applicable standard of care: RPP Standard Negligence Per se Specialized Standard of Care Custom or Usage in Industry: Not automatic breach, but may be relevant (2) Res Ipsa Loquitur: The very occurrence of the accident causing Plaintiff's injury suggests negligent conduct. Arises if facts cannot establish breach of duty because circumstances surrounding the event are unknown to Plaintiff. Plaintiff must show: a) Inference of Negligence: Harm would not normally occur absent negligence b) Attributable to D: This type of harm normally results from negligence by one in Defendant's position. Often satisfied by showing injury-causing instrument was in Defendant's exclusive control c) Injury was NOT Attributable to Plaintiff

Wrongful Death and Survival Actions

Wrongful Death: Lawsuits brought by a decedent's beneficiaries for their own loss of support and companionship that deceased would have provided. Survival: Lawsuits brought by a decedent's estate based on claims that could have been brought if the decedent lived.