Torts

Medical Malpractice

- Affirmative evidence of a medical standard needs to be provided by an expert witness and proof that the standard was violated needs to be shown. - Medical standard is based on a reasonable doctor on a nation-wide level (not regional).

General Rule of Causation

- Unlike criminal liability, no tort negligence liability without proof of harm, or the cause of that harm — no harm, no foul. - Have to prove 2 different kinds of causation: 1. Causation in Fact: But for x, y would not have happened. 2. Proximate Cause: Cause can't be too remote, has to be close to the end result. - A breach of duty is cause in fact of the harm, if the harm would not have occurred in absence of the breach of duty.

Burden of Proof for Negligence

1. Burden of Pleading: Plead sufficient facts in your initial complaint to sustain your claim. 2. Burden of Production: Present enough evidence (direct, circumstantial (banana cases) or res ipsa loquitur (the thing speaks for itself)) to convince a judge that a reasonable jury could rule in your favor. 3. Burden of Persuasion: Convince a jury beyond a preponderance of the evidence — more likely than not, the tort was committed.

Negligence Elements

1. Duty to Act with Reasonable Care 2. Breach of that Duty 3. Causation 4. Damages: Must always plead and prove actual loss or damage, no nominal damages, no harm no foul.

False Imprisonment

Physically detaining someone without the legal authority to do so. Can achieve this through physical restraints or duress (would a reasonable person feel free to leave?). Required elements: 1. Volitional Act 2. Intent to unlawfully confine another person within physical boundaries 3. Actual confinement 4. Victim is conscious of confinement or harmed by it 5. Causation If there is a reasonable means of escape, no false imprisonment. Cannot recover for damages sustained while escaping if you would have remained safe had you stayed. Good faith is not a valid defense.

Defense of Others

Privileged to use reasonable force if you reasonably believe it to be necessary to protect third parties from immediate harm. What happens if you make a reasonable mistake? You are still privileged according to the majority of jurisdictions. Minority rule is that you need to step into the shoes of the party you're defending. If the party had a reasonable right to self defense, you also had a right to defend them.

Consent

1. Express Consent Can be oral or written. 2. Implied or Apparent Consent Can be implied either by custom or by actions Customs: kisses on the cheek, shaking hands, crowded subway situations, etc. Actions: O'Brien case when she lifted her arm for a shot, head-nods, etc. 3. Can Also be Implied by Law Requirements for implied by law consent: 1. Unable to give consent (unconscious, intoxicated, etc.) 2. Risk of serious bodily harm if treatment is delayed 3. A reasonable person would consent to treatment under those circumstances 4. Doctor has no reason to believe that the patient would refuse treatment 4. General Rules Consent can be withdrawn. Consent can be limited. Consent is invalid if obtained by fraud.

Elements of Battery (All Are Required)

1. Intent to cause harmful or offensive contact Doesn't have to be malicious, can be done out of good will (Ex: reseting someone's dislocated shoulder) 2. Volitional Act (external manifestation of the will) 3. Harmful or offensive contact results Your body doesn't actually have to make contact, you can either: Set something in motion that causes offensive contact (Garratt v. Dailey with the chair) or; You can make contact with something that is "intimately connected" to you like clothes or a car (Fisher v. Hotel with the plate) 4. Causation (the volitional act causes harmful or offensive contact)

Elements of IIED (All Are Required)

1. Intentional or Reckless Conduct Intent to cause severe emotional distress 2. Extreme and Outrageous Act Objective standard, what would be outrageous to a reasonable person. Mere words are not enough, there has to be more. Exception: If you know someone has a special sensitivity/vulnerability and you exploit that, you can't hide behind the reasonable person standard due to prior knowledge. Generally the case is one in which the resuscitation of the facts to an ordinary person would cause them to stand up and shout "Outrageous!" 3. Causation 4. Emotional Distress Must be Severe

Elements of Assault (All Are Required)

1. Overt, volitional act (external manifestation of the will) Something that makes you think there's about to be harmful or offensive contact, like an offer to touch. Has to be physical, words are not enough. 2. Intent to cause apprehension of imminent harmful or offensive contact. Intent: Purpose/desire or knowledge to a substantial certainty 3. Well-founded apprehension of imminent harmful or offensive contact. Apparent ability to effectuate the attempt. Fear constitutes apprehension, but apprehension doesn't have to include fear. It can include fear, which may result in greater damages. 4. Causation

Privacy Claims

1. Public Disclosure of Private Facts Unreasonable publicity of someone's private affairs (content of information). 2. Intrusion upon seclusion Intruding on someone's private area (how the information was obtained). 3. False light Similar to defamation. 4. Appropriation of name or likeness

Elements of Trespass to Land (All Are Required)

1. Volitional Act 2. Intent to Enter the Land of Another Every unauthorized entry into a person's land is a trespass. Only need an intent to enter the land, not an intent to trespass. Even if you think it's your land and it's not, that is still trespass. It's even trespassing if you enter without permission to do the owner a favor. If you trip and fall onto land that isn't your own, that doesn't count since it wasn't intentional. 3. Causation 4. Entry Doesn't even need to be a person, can be a person's thing (like shotgun pellets, not fumes or noise — those are nuisance claims).

Elements of Trespass to Chattels (All Are Required)

1. Volitional Act (external manifestation of the will) 2. Intent to Affect the Chattel 3. Causation 4. Invasion of a Chattel Interest Qualifying Possibilities: Impairment as to the condition, quality, or value of the chattel. Deprivation of use of the chattel. Bodily harm to the possessor or harm to something in which the possessor has a legally protected interest. Dispossession (taking someone's possession away from him or her). Mistake is not a valid defense.

Burden of Proof for Causation

1P v. 1D = Burden of proof is on the P. 1P v. Multiple Ds = Burden of proof is on the Ds. If none of the Ds can prove prove who was solely responsible, all are jointly liable. Ds are in better position to determine who is responsible (Summers case, 2 guys shot shotgun shells, only one pellet hit P's eye).

Products Liability

3 Types: Negligence Claim Warranty Claims (Express or Implied) Strict Products Liability Primary basis for liability claim these days: strict liability

General Duty of Care

Public establishments (stores, etc.) must exercise reasonable care by keeping the premises reasonably safe. Plaintiff must prove that the defendant had notice of danger on the premises. This can be actual notice or constructive notice. - Actual Notice: Someone notified defendant of danger - Constructive Notice: The danger existed for so long, defendant should have known. There must be sufficient time for a reasonably prudent person to discover the hazard (but no hard-set time requirement). - Exceptions: Neither applies if the defect was caused by the plaintiff. Constructive Notice doesn't apply if dangerous conditions are inherent or easily foreseeable in a company's business practices (Jasko pizza on wax paper case).

Intent

Purpose/desire or knowledge to a substantial certainty.

Indemnity

A party (usually employer) can seek full damages incurred in a vicarious liability case from the party who was actually at fault (usually employee).

Statute of Repose

A time should arise when a person is no longer responsible for a past act. Example: 18 years for architectural negligence Separate defense from Statute of Limitations (common in professional context like architects, etc.)

Difference Between Publishers & Distributors

Republisher: Someone repeating a rumor, treated as the original speaker Distributor: Not liable if they have no knowledge of defamatory material

Wrongful Death

A wrongful death claim is the beneficiary's claim (defined by state statutes). Has to be brought by a beneficiary: Spouses (but not unmarried cohabitants) Children (but most jurisdictions don't allow step-children) Parents (death of a child without spouse or children, includes unborn children for most jurisdictions) If there is no beneficiary who is alive to bring a wrongful death suit, there is no wrongful death. Possible damages for wrongful death claim: Loss of financial support Value of services decedent provided (e.g. nurturing of children) Compensation for loss of society Damages for funeral expenses

Qualified Privileges

Absolute privilege — complete immunity from defamation liability Qualified privileges: Common interest Fair report Qualified privileges can be dissolved by showing of malice

Special Damages Rule

Actual loss of something of economic or pecuniary value Must be able to measure the damages in monetary terms. Only have to prove them for slander cases, not libel. Examples: Missed out on a business opportunity — yes Lost a friend — no

Legal Recovery of Chattel

An individual has a right to retake property that has been fraudulently obtained from him, so long as it can be done without unnecessary violence to the person who took the property, or without breach of the peace. Elements (all are required): 1. Chattel must be taken tortuously. 2. Must be a fresh pursuit (from when the property was taken, not when you find out it was taken). 3. A demand must be made for the return of the chattel (unless futile or dangerous). 4. It has to be reasonable, non-deadly force. Cannot use force likely to cause death or serious injury to protect your property unless death or serious bodily injury is threatened against you. - Value of human life always outweighs the interest in one's property. - Cannot do by mechanical means what you are not allowed to do in person (shotgun trap).

Informed Consent in Medical Cases

Battery v. Negligence: - No consent at all = Battery - Uninformed consent = Negligence Elements of Informed Consent: 1: Describe the treatment 2: Disclose the material risks. 3: Disclose the available alternatives. Elements not necessary when: - The information is plainly obvious - Disclosure would be detrimental to the patient's care - Emergency situation in which disclosure is not practical Causation: Plaintiff must say: If the information had been known prior to the treatment, he or she would not have proceeded with it. Otherwise, no causation. Reasonable Doctor v. Reasonable Patient - Reasonable Doctor Standard: Give the patient information in conformance with standard medical practice - Reasonable Patient Standard: Give the patient information in accordance with what a reasonable patient would need to know to provide consent. Conflict of Interest: If a doctor may stand to have great financial gain by administrating a procedure, that needs to be disclosed, because a reasonable patient would want to know of potential conflicts of interest (Moore v. UCLA case).

Statements Directed at a Group

Can a statement be deemed to be of and concerning everyone it is directed to? Large Group: No one can sue (ex: all doctors are liars and thieves) Small Group and the Statement Covers Everybody: Any one of them can sue (ex: room with three people) Fuzzy Middle: Some portion of a medium sized group, judgment call (ex: a few of the people in this group are criminals)

Defense of Property

Cannot use deadly force, can only use the force that appears to be reasonably necessary to defend your property If the invasion of property is peaceful, the owner of the property must request that they leave before using force unless that would be futile

Discovery Rule

Claim does not accrue time for the purpose of the statute of limitations until the plaintiff discovers or reasonably should have discovered the resulting injury. Example: Medical Malpractice — patient discovers surgical issue years after operation.

Negligence Per Se

Required Elements: 1. Statute that prohibits the act 2. Violation of the statute 3. P among the class of persons sought to be protected by the statute Injury caused was the type of harm sought to be avoided by the statute. Rules: Once the court determines that a statute is applicable, if the jury finds that you didn't follow the statute, it is a breach of duty, period — unless there is a reasonable excuse for not doing it. Negligence Per Se just establishes duty and breach! You still have to prove the other elements of negligence: Causation and Damages. This logic doesn't work the opposite way, rarely do courts consider compliance with a statute to be "reasonable per se" On the exam, a statute will be given if he wants you to discuss negligence per se

Joint and Several Liability

Rule: All tortfeasors jointly liable for amount of judgment; each is responsible for P's entire injury Abandoned by many courts in favor of apportionment by fault approach Applies when: 1. Actions in Concert Working together in the same enterprise, both involved in encouraging the tortious act. Ex: street racing 2. Breach of a Common Duty Someone is liable, and the employer is vicariously liable. 3. Indivisible Injury When Ds act independently but collectively cause an indivisible injury

Defamation

Common Law Elements: 1. A defamatory statement. Statement that is damaging to P's reputation. 2. Statement has to be of and concerning the plaintiff (identification requirement). Whether a reader/listener with knowledge of circumstances could reasonably understand that words referred to P Individual within a group 3. Publication Communication intentionally or by a negligent act to one other than the person defamed. Republication Rule and Distributors. Republication Rule: If you republish a lie, you're just as liable Distributor Rule: Most jurisdictions only hold distributors liable if they knew of the lie (minority is should have known). Types of Defamation: Defamation: overarching tort that encompasses both libel and slander Libel: written communication Slander: spoken communication Two Approaches: 1. "Right Thinking" Approach Applies a moral judgment 2. Significant Portion of Community Considers whether a significant portion of the community would view the communication as damaging to one's reputation.

Strict Liability for Animals

Common Law Rule for Wild Animals: D is strictly liable if a wild animal injures anyone. Common Law Rule for Domestic Animals: Only strictly liable if the owner knew or had reason to know that the animal had dangerous or vicious propensities. Definitions: Domestic: Depends on customs of the community. Dangerous: Has the capability to injure someone (big dog, even if it is nice).

Comparative Negligence & Strict Liability

Courts are split on comparative negligence applying in strict liability cases (Daly v. GM, driver was drunk and didn't wear a seat belt). Most jurisdictions have now begun using comparative negligence in their assumption of risk analysis.

Common Interest Privilege

Covers communications made between two parties that have a common interest. Examples: Family members Teammates Business colleagues

Innuendo

Definition: Words can carry meaning beyond what they literally say Standard for determining the meaning of a statement: What meaning might reasonably be ascribed by the community Reasonable reader in the community standard

Conversion

Definition: An intentional exercise of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel. Factors for determining "seriousness": 1. The extent and duration of the exercise of dominion. 2. The intent to assert a right inconsistent with the other's right of control. 3. Good faith. 4. Extent and duration of the resulting interference with the other's right of control. 5. Harm done to chattel. 6. Inconvenience and expense caused to the other. More serious version of trespass to chattels — often characterized as theft. Can recover nominal damages — don't have to show actual damage, unlike trespass to chattels.

Release

Definition: Surrendering one's claim. Traditional Rule: Release of one tortfeasor releases all tortfeasors. Note: Virtually all jurisdictions have modified or relaxed the common law rule.

Res Ipsa Loquitur

Definition: The thing speaks for itself. Rule: - Court says negligence can be inferred based on the occurrence itself (Byrne case, barrel of four fell out of a window and landed on someone). - Plaintiff does not need to produce additional evidence. Required Elements: 1. The instrumentality of the injury must be within the exclusive control of the defendant (this shows who is responsible) 2. The accident is such that ordinarily would not occur in the absence of negligence (this shows the person responsible was careless).

Strict Liability

Definition: When D is liable even in the absence of negligence or intentional tortious conduct.

Manufacturing Defect

Definition: When a product is not manufactured in conformance with its design. P only has to prove that a defect exists — does not have to prove the cause (strict liability, not negligence). Just have to prove product deviates from its original design.

Wrongful Birth

Difference between wrongful life and wrongful birth: life is brought by the baby, birth is brought by the parent(s). General negligence claim, elements are the same as any other negligence.

Statute of Limitations

Rule: Complete bar to actions that don't meet the time limit. Defendant has the burden to prove Statute of Limitations has passed (if the D fails to raise the issue, the claim will proceed). All states have statutes of limitations (varies by state) Typically for Torts: 1-2 years In California: 2 years Equitable Tolling Court may choose to waive the statute of limitations if D fraudulently conceals the damage. Continuing Tort If damages occur over the course of years, the court typically won't start the clock for statute of limitations until the D has stopped damaging.

Design Defect

Different Approaches: Risk Utility Analysis Negligence-style analysis — similar to the Hand Formula. Was the manufacturer negligent in choosing this particular design at the time it was sold? Most jurisdictions require that P provide a reasonable alternative design in order to prove a design defect Imputed Knowledge Risk Utility Analysis If the manufacturer knew at the time of sale what we now know at the time of trial, would they have been negligent in choosing this particular design? Consumer Expectations Test: Product must contain a dangerous defect, the presence of which an ordinary consumer would not reasonably detect. Vincer Above-Ground Pool Case: No gate was expected, so no defect. Hybrid Risk-Utility and Consumer Expectations Test This is a hybrid either/or approach.

Wrongful Conception

Distinct claim from wrongful life or birth. Like wrongful life, only a minority of jurisdictions allow for this claim to be brought. Damages: loss of earnings during pregnancy, pain and suffering, etc. Most courts have said you cannot recover for the costs of rearing the child. Courts have deemed it not reasonable to demand someone abort or put the child up for adoption.

Public Disclosure of Private Facts

Elements (Sidis Case, child prodigy): 1. Publicity Different than publication in a defamation context Means the matter was made public either by communicating it to the public at large, or to so many people that it is likely to become public knowledge. 2. Private Facts 3. Highly Offensive to a Reasonable Person 4. Not of Legitimate Concern to the Public (not "newsworthy") For public figures, a lot more of their life will be considered newsworthy.

Strict Products Liability Claim

Elements: Seller engaged in selling a product. Defective condition unreasonably dangerous to the user. No substantial change to the product. Causation Damages Types of Defects per the Third Restatement of Torts: Manufacturing: Product departs from intended design Design: Designed in a defective manner Warning: Inadequate instructions or warnings Note: Strict products applies to products, not services. Misuse is not enough to remove liability — still liable for reasonably foreseeable misuses.

Bystander NIED

Emotional distress caused as a result of the injury of another. Three approaches to bystander NIED: 1. Zone of Danger (Daley v. La Croix) Plaintiff has to be in the zone of danger to recover. 2. Open-Ended Foreseeability (Dylan Case) - Damage had to be foreseeable. Factors to determine foreseeability: Geographic proximity (within the zone of danger) Directly Observable (Did P observe it or just hear about it after the fact?) Relational Proximity (is this person closely related to the victim) 3. Restricted Rules-Based Approach (Thing v. La Chusa) Requirements: 1. Closely related to the victim 2. Present at the scene of the injury when it occurred and aware that the victim was being injured 3. As a result of witnessing the injury, suffers emotional distress beyond what would be expected in a disinterested witness

Non-Delegable Duty

Even if one delegates the duty in question to someone else, including an independent contractor, one still remains vicariously liable. Example: Maloney v. Rath, duty to maintain your car is a non-delegable duty. This is usually applied in cases where the activity is seen as dangerous.

Products Liability: Warranty Claim

Express Warranty: Contractual agreement. Implied Warranty: Merchantability: It's implied that a product is reasonably fit for the general purpose for which it is manufactured. Fitness for a Particular Purpose When someone sells a product explicitly for a particular purpose.

Excessive Punitive Damages

Factors: 1. The degree of reprehensibility of the defendant's misconduct. 2. The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award. 3. The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. Notes: Misconduct must be the subject of the complaint — anything beyond the scope shouldn't be considered for punitive damages. Needs to be reasonable and proportionate — single digit ratio seems reasonable (State Farm case).

Difference Between Wrongful Death and Survivability Statutes

For wrongful death, the damages award goes to the beneficiary. For survival statute, the damages award goes to the victim's estate. A plaintiff can recover for both, even if they arise from the same incident (Murphy case).

Immunities

General Rule: Immunities deny liability based on the status of the parties — they don't eliminate liability across the board. Inter-Spousal Immunity Prohibits a spouse from suing his or her spouse. Traditional common law immunity — spouses were considered one legal entity. Not valid in most jurisdictions now. Parental Immunity Prohibits a parent from being sued for negligent supervision of a child. Does not extend to intentional torts.

Duty to Aid/Rescue

General Rule: No Affirmative duty to aid/rescue anyone. Exceptions: D stands in a special relationship to the P to protect the P against the conduct of third parties (generally premised on the idea of control). Examples: Inn keeper and guest Employer and employee Prison and prisoner Teacher and young student D's own negligence causes the harm. D innocently creates a dangerous condition. D innocently injures someone. D voluntarily takes a duty upon himself and performs it negligently.

Vicarious Liability

Rule: Employer liable for employee actions committed in the scope of employment. Exceptions: Does not apply to contractors. Contractors: Determined by whether the employer has control over the person's actions. Employees are told what to do and how to do it, contractors are told what to do, not how to do it. You can be held vicariously liable if you hold someone out as an employee or agent and they're actually not.

Rescue Doctrine

General Rule: Recognizes danger invites rescue, allows an injured rescuer to sue the party which caused the danger requiring the rescue in the first place. Required Elements: 1. The defendant was negligent to the person rescued and such negligence caused the peril or appearance of peril to the person rescued. 2. The peril or appearance of peril was imminent. 3. A reasonably prudent person would have concluded such peril or appearance of peril existed. 3. The rescuer acted with reasonable care in effectuating the rescue. Firefighter Rule: Precludes recovery against the person who's negligence caused the danger, given it is within the normal scope of the job. Some jurisdictions have abolished this rule.

Failure to Warn

General Rule: Warnings do not preclude design defect claims. In most jurisdictions, there is no duty to warn of obvious risks that are generally known. A warning may be relevant in a design defect case, because D could argue assumption of risk and/or comparative negligence. Most jurisdictions presume an average person would heed warnings.

Contribution

Rule: If a tortfeasor is held liable for the entire damage amount, the tortfeasor has a right to sue third parties to recover for their portion of the damage. Conditions: This principle is only applicable to negligent torts, not intentional torts. For a tortfeasor to seek contribution from a third party, the original injured party must have had a cause of action against the party from whom contribution is sought. Contribution only applies in jurisdictions of joint and several liability, where a defendant can be stuck with the whole bill and have to sue another party to recover for his or her portion of the damages. Doesn't apply in jurisdictions that allocate based on Comparative Fault

Going and Coming Rule

Rule: One's commute is not considered to be within the scope of one's employment. Exception: Does not apply when employer endangers employees due to actions that occur at work, the consequences of which are foreseeable (Bussard v. Minimed, inhaled pesticides at work and crashed going home). Detour v. Frolic Issue: Did defendant crash into the plaintiff's car in the scope of his employment Detour:Brief or slight deviation from task at hand, still within the scope of employment Frolic:Substantial deviation from scope of employment for personal reasons

Survival

Rule: Personal injury claim brought directly on behalf of the decedent (i.e. for benefit of the decedent's estate). Possible Damages: Pain and suffering Lost wages Medical expenses

Negligent Infliction of Emotional Distress (NIED)

Rule: Recovery is allowed when there is a physical injury produced as a natural result of the emotional distress that was proximately caused by the defendant's negligent conduct. Needs to be a definite and objective physical injury. Notes: Anytime physical injury has been suffered, you can almost always recover for emotional distress. Many jurisdictions have adopted the Zone of Danger Test: Recovery is allowed if plaintiff is placed in immediate risk of physical harm by defendant's conduct.

Products Liability: Negligence Claim

Rule: The manufacturer's duty of care extends to all who would foreseeably be affected by danger posed by the product. Manufacturer's liability for duty of care is not limited to parties that have privity of contract — secondhand buyers can sue the manufacturer (Macpherson v. Buick, wooden wheel).

Mitigation Rule

Rule: Plaintiffs have a duty to mitigate damages where a reasonable person would do so. Mitigation: What the P could have reasonably done after the tort has been committed. Different than actions taken before the tort occurred (contributory/comparative negligence).

Absolute Privilege

Rule:Complete immunity from defamation liability, even if you deliberately lie. Examples: Attorneys Judges Legislators Witnesses Executive Officials

Least Cost Avoider

Since large companies can more easily and cheaply take precautions, they should be held liable for not doing so. Liability goes to the party that can more easily guard against harm.

Slander Per Se

Special damages need not be proven if defamatory statement falls within a slander per se category: Statements that impute to P the commission of a serious crime Statements that injure P in business, trade, profession, or office Statements that impute to P a "loathsome disease" Statements that impute to P serious sexual misconduct

Reasonable Care Standard for Disabilities

Standard — A reasonably prudent person with the disability in question (Roberts case, blind man). Held to a higher standard if you have superior physical abilities (just like mental awareness). No special standard for permanent mental disabilities (most jurisdictions).

Reasonable Care Standard for Professionals

Standard — Having the knowledge, training and skill of an ordinary practitioner of the profession (Heath case, objective based on average pilot, not based on pilot's subjective knowledge/training). Standard applies broadly — lawyers, doctors, etc. When a negligence determination involves information beyond the jury's common knowledge, expert witnesses have to testify that the conduct deviated from the established standard of care. It's not enough to say that you would have done something differently.

Reasonable Care Standard for Emergencies

Standard — What a reasonable person would do in the emergency when taking circumstances into account. Emergency has to be unforeseen, sudden and unexpected to not be liable (Cordas case, where taxi driver escapes car jacker).

Reasonable Care Standard for Children

Standard — What is reasonably expected from a child of like age, intelligence or experience. When engaged in adult activities that are inherently dangerous, children should be held to an adult standard of care (Robinson case, kid riding snowmobile). Inherently Dangerous — Such that results in grave danger to others and to the minor himself if the care used drops below the care that a reasonable adult would use. Restatement phrases it as adult activity, something that a child would not normally be engaged in. (Adult standard has been applied to golf, child standard has been applied to hunting. Depends on the circumstances).

Strict Liability for Ultrahazardous Activity

Guiding Principle: Whether the risk created is so unusual as to justify the imposition of strict liability even if the activity is carried out with reasonable care. Strict liability is used in situations were there is a high risk of harm even if you're super careful. Strict liability only applies to harm resulting from that which makes the activity ultrahazardous (basically proximate cause). Factors for determining ultrahazardous activity: Existence of a high degree of risk of some harm to the person, land, or chattels of others Likelihood that the harm that results from it will be great Inability to eliminate the risk by the exercise of reasonable care Extent to which the activity is not a matter of common usage Inappropriateness of the activity to the place where it is carried on Extent to which its value to the community is outweighed by its dangerous attributes Don't have to satisfy all of the factors, go through them and make a judgment

Hand Formula

If B<PL, then negligent if you don't take precaution. B: Burden of taking adequate precaution P: Probability of injury L: Gravity of resulting injury

Exceptions to the Republication Rule

If the speaker publishes an account of an official action or proceeding, and the report is a fair and accurate summary, the republisher is not liable for any defamation contained therein.

Eggshell Skull Rule

If you commit a tort against someone, you are responsible even for completely unforeseen injuries resulting from that tort. (Ex: tapping someone with an eggshell skull)

Privilege of Public Necessity

In emergency situations, the private interests of individuals yield to the broader interests of society (blowing up someone's house to stop a fire from spreading). Rule: A person (public official or private citizen) can enter land and interfere with chattels if it reasonably appears necessary to avert a public disaster. No liability if the person makes a reasonable mistake. The person who owns the property is not compensated under common law, but there are jurisdictions that passed statutes which provide compensation in certain cases.

Judgment v. Satisfaction

Judgement: What the court determines you are owed. Satisfaction: Once you are actually paid, you are done. Note: In a jurisdiction without joint and several liability, Ds are just responsible for their portion of the damage (comparative negligence).

Learned Intermediary Rule

Learned Intermediary: Someone who comes between the seller and consumer who has specialized skill and knowledge and would be expected to provide product information to the consumer. Manufacturer just has to provide information to the intermediary, which releases the manufacturer from liability. Example: Drug company —> doctor —> patient

Single Publication Rule

The cause of action occurs at the time of the original publication.

Malice

Malice eliminates protections provided by Common Interest and Fair Reporting privileges. Common Law Malice v. Actual Malice: Common Law Malice: Spite or ill will. Actual Malice (NY Times v Sullivan): Knowledge of falsity or reckless disregard of whether it is true or false. High bar for reckless disregard: high degree of awareness of falsity The Constitution requires that a public official seeking defamation damages for statements made about their official conduct must prove that the statement was made with actual malice. No need to show actual malice to recover for presumed/punitive damages in cases of private concern (Dun & Bradstreet). Courts have taken either approach, only need to meet one of the standards.

Shopkeeper's Privilege

Merchants are privileged to detain within the vicinity of their stores if they reasonably believe someone has shoplifted, and they can perform a reasonable investigation. Elements (all are required): 1. Reasonable belief that someone has shoplifted. 2. Has to be on or near the premises. 3. Have to make a request for the person to stay if practicable. 4. Have to conduct a reasonable investigation — force needed for a reasonable search. 5. Has to be a reasonable time period and manner of detention.

Net Present Value

Money in hand now is more valuable than receiving the same amount in the future.

Wrongful Life

Most courts don't award damages for Wrongful Life claims. For the minority of jurisdictions that do, awards are typically limited to compensatory damages for extraordinary medical expenses.

Maximum Recovery

Most courts have a reasonableness standard with a high trigger, something that "shocks the conscience"

Subsequent Remedial Evidence Exclusion

Most jurisdictions exclude subsequent remedial evidence (evidence of repairs after the damage occurs) as proof of product defects in order to incentivize corrective action.

Comparative Negligence/Fault

Most jurisdictions have adopted one of the two Comparative Negligence approaches: Pure Plaintiff's recovery is reduced proportionate to his or her contributory negligence You can recover for any portion of negligence (even if your negligence is 99% responsible) Modified 2 different types — D is not liable if P's negligence is: Not greater than 50% Less than 50% Only makes a difference in 50/50 scenarios Not greater than 50% = P wins Less than 50% = D wins Approach when there are multiple defendants: Majority Rule: P's negligence is compared to the combined negligence of all of the Ds put together. Minority Rule: P's negligence is compared to the negligence of each individual D.

Causation in Fact

There can be multiple negligent but-for causes of an injury. Wrinkles to the general "but-for" rule: - Two fires situation, you can have causation in fact even though you can't prove it - Two hunters case, only one can cause the harm but can't prove who did it, so burden shifts to defendants - Market share liability in DES context (Sindell)

General Damages Rule & Categories

Must be proven! It is a required element of negligence liability. Three categories: 1. Nominal Damages Small sum awarded to vindicate rights. 2. Compensatory Damages Typical measure of tort damages. Meant to make the plaintiff whole — the amount of money necessary to compensate for their injury. Restorative. Not taxed, since you don't know what tax rates will be in the future and you don't know what sort of deductions the plaintiff will qualify for. 3. Punitive Damages To get punitive damages, negligence needs to be gross and reckless — willful and wanton conduct. Awarded over and above compensatory to punish and deter others from doing the same thing in the future. If you only get caught half the time, you should have to pay double, since the punishment should be proportional to the damage you cause (Motel 6 bed bug case). Mostly for intentional torts, generally not awarded for intentional torts committed in good faith. Can be available for unintentional torts, but generally this requires a higher bar than regular negligence — "clear and convincing evidence" of reckless disregard, malice, etc. Three guideposts: Degree of reprehensibility Proportionality Comparison to other sanctions for similar misconduct Ps only have a right to compensatory damages and whatever punitive damages the state allows per relevant statutes (Cheatham case, Indiana 75% law).

Conditions of Self Defense

One is privileged to use force when it reasonably appears that the actor is about to inflict imminent battery. It is based on an objective standard, what a "reasonable person" would do The amount of force used should be what is reasonably necessary and proportional to deter the threat. Not a Right of Retaliation: After aggressor retreats, one cannot pursue and attack the aggressor unless one is still reasonably in danger. Cannot argue self defense if you are the original aggressor unless you have retreated. Cannot use deadly force unless you have a reasonable apprehension of loss of life or serious bodily injury. Duty to Retreat: Every jurisdiction: No duty to retreat if non-deadly force is to be used. Majority of jurisdictions: No duty to retreat if deadly force is to be used. Minority of jurisdictions: Duty to retreat if you can reasonably do so safely, does not apply if in your own home. Not liable if accidentally injure another person while defending yourself — unless you were negligent.

Single Satisfaction Rule

P can only receive a single satisfaction of a judgment. If there are multiple tortfeasors P can recover from any or all of them. But P can't receive more than what the court ruled P ought to be compensated for — no double recovery.

Slander

P must plead and prove special damages. Slander related to credit worthiness has to be related to one's profession. Land lord = yes School teacher = no

Landowner's Duty of Care

Traditional Common Law Approach: Landowner's duty depends on status of person injured on property. Trespassers General Rule: No duty of care to trespassers, they proceed at their own risk (presuming there's no reasonable belief that there will likely be people around). There is a duty to avert harm once presence of the trespasser has been discovered. Exceptions: Defendant is liable for harm caused to a trespasser as a result of D's willful and wanton conduct (ex: setting up a spring trap gun) Discovered trespassers, frequent/known trespassers, trapped trespassers in peril Licensees (Social Guests) D has duty to warn of any hidden dangers known to host but unknown to guest No affirmative duty to make premises safe Exception: No duty of care/liability on social hosts unless serving alcohol to minors. Invitees (Business Customers) D has duty to exercise reasonable care in keeping premises reasonably safe for invitees Alternative Approach: Some courts have rejected the traditional common law approach in favor of the general reasonableness standard (Rowland, what a reasonable person would do under the circumstances). Make sure to recognize the different approaches during an exam! Unless the exam specifically tells you to use one particular approach.

Contributory Negligence

Traditional Common Law Rule: A plaintiff cannot recover at all if the plaintiff's negligence contributed to the accident Example: Cutterfield case, D left pole in the road and P was traveling on a horse at a reckless speed. Burden of Proof Burden is on the defendant, as this is an affirmative defense. Exception Contributory negligence doesn't count when D commits an intentional tort. Example: Swung at someone and you claim they were negligent by not dodging fast enough.

Substantial Truth

Truth is an absolute defense for defamation D doesn't need to prove literal truth, only substantial truth. This means the "sting" of the charge needs to be true, even if the facts aren't.

Assumption of Risk

Two Basic Elements ("The Flopper" Case): 1. Actual knowledge of the particular risk, including an appreciation of its magnitude. 2. You have to voluntarily proceed in the face of the risk. Assumption of Risk can be Express or Implied Express: Signing a waiver, etc. Implied: Getting on a ride after observing the risk, etc.

Duty to Control the Conduct of Others

Two scenarios: D stands in a special relation to P that requires D to exercise affirmative care to protect P against the conduct of third parties D stands in a special relation to a third party that requires D to prevent the third party from injuring the P Ex: prison owes duty to the general public to protect them from inmates D must exercise reasonable care in these cases

Proximate Cause

Use two approaches for determining proximate cause: 1. Foreseeability (Wagon Mound case, harbor caught fire in oil spill) - Forward looking — could you foresee the result? (Not how it occurred) Typically only extends to a "zone of reasonable apprehension (danger)" (Palsgraf case, woman on the train platform, don't owe a duty for unforeseeable dangers) - Some courts extend beyond danger zone. 2. Directness (Polemis case, oil tanker blew up because of a fallen plank) - Backward looking — was it the direct cause? Third Party Interventions - General Rule: Causal chain is not automatically severed by third party acts, liability is found if the intervening act was reasonably foreseeable. - Criminal Acts: Intervening, intentional criminal acts don't categorically break the chain of causation. They may be more likely to break the chain, but the general standard of foreseeability still applies. - Suicide: Suicide is an intentional, deliberate act that cuts off liability.

Strict Liability Defenses

Valid Defenses: Assumption of Risk (the flopper case) Act of God (Golden v. Amory, dam broke in freak storm, no liability) Invalid Defense: Contributory/Comparative Negligence

Concurrent Negligence

When Ds are concurrently liable because they were acting in concert (example: street racing)

Transferred Intent

When one intends to commit a trespass tort and succeeds in committing a trespass tort, he is liable even if the plaintiff wasn't the intended target and even if it's not the same tort he intended to commit. (Ex: shot into plaintiff's land and hit someone, liable for battery even though you intended trespass to land) Trespass Torts: Battery Assault Trespass to Land Trespass to Chattels

Privilege of Private Necessity

Where the defendant prudently and advisedly availed himself of the plaintiff's property for the purpose of protecting his own more valuable property in an emergency situation. Must act reasonably with ordinary prudence and care.