Torts

Damages for Trespass to Chattels

ACTUAL DAMAGES REQUIRED 1. Dispossession: value for loss of use 2. Intermeddling: no damages unless actual damage to chattels

What does the plaintiff has to prove for misappropriation?

Lack of consent and injury

Land possessor's duty to trespassers (traditional)

No duty of reasonable care to trespassers

When is Trespass excused?

Private necessity

Intentional Misrepresentation

The elements for intentional misrepresentation are: i) The defendant made a misrepresentation of a material fact, opinion, intention, or law or failed to disclose a material fact when under an affirmative duty to do so; ii) The defendant must have known the representation to be false or must have acted with reckless disregard as to its truthfulness (scienter); iii) The defendant must have intended to induce the plaintiff to act (or refrain from acting) in reliance on the misrepresentation; iv) The plaintiff must have actually relied on the misrepresentation; v) The plaintiff's reliance must have been justifiable; and vi) The plaintiff must prove actual damages (nominal damages are not awarded).

Remedies for Nuisance

The traditional remedy for a nuisance was an injunction. Today courts usually balance the equities to determine if the appropriate remedy is an injunction or damages.

Misapporpriation

The unauthorized use of plaintiff's name, likeness, or identity for defendant's advantage (commercial or otherwise)

Intentional Interference with a Contract

To establish a prima facie case for intentional interference with a contract, the plaintiff must prove that:i) A valid contract existed between the plaintiff and a third party; ii) The defendant knew of the contractual relationship; iii) The defendant intentionally interfered with the contract, causing a breach; and iv) The breach caused damages to the plaintiff.

Slander per se

slander involving false statements about sexual behavior, crimes, contagious diseases, and professional abilities

Products Liability Claims Elements

(1) Commercial seller (i.e., manufacturer, distributor, retailer) produced or sold defective product (2) Defect caused P harm

Negligence for Product Liability Claims Elements

(1) Seller (commercial or noncommercial) failed to use reasonable care in producing or inspecting defective product (2) Product caused P harm

Negligence Per Se Elements

(1) That there is a statute that proscribes certain actions or defines with specifity a standard of conduct; (2) That the actor violated the statute; (3) That the person is injured is in the class of persons that the statute was enacted to protect; and (4) That the type of harm or injury that occurred must generally be of the type that the legislation sought to prevent.

Partial (Modified) Comparative Negligence

(i) If the plaintiff is less at fault than the defendant, the plaintiff's recovery is reduced by his percentage of fault, just as in a pure comparative-fault jurisdiction; (ii) If the plaintiff is more at fault than the defendant, the plaintiff's recovery is barred, just as in a contributory-negligence jurisdiction; (iii) In the vast majority of modified comparative-fault jurisdictions, if the plaintiff and the defendant are found to be equally at fault, the plaintiff recovers 50% of his total damages. In a few modified comparative-fault jurisdictions, the plaintiff recovers nothing when the plaintiff and the defendant are equally at fault.

Invasion of Privacy Torts

1) Misappropriation of the right to publicity; 2) Intrusion upon seclusion; 3) Placing the plaintiff in a false light; and 4) Public disclosure of private facts

Battery

1) The defendant intends to cause a contact with the plaintiff 2) His affirmative conduct causes such a contact, and 3) The contact causes bodily harm or is offensive to the plaintiff.

Elements of Intentional Infliction of Emotional Distress

1) The defendant's intentional or reckless,2) Extreme and outrageous conduct,3) That causes,4) The plaintiff severe emotional distress.

Good Samaritan Statute

A "Good Samaritan" statute protects doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.

Design Defect

A defect in the design of the product as determined under the consumer expectation test (unreasonably dangerous beyond the expectation of an ordinary user) and/or the risk-utility test (a reasonable alternative design that was economically feasible was available to the defendant and the failure to use that design rendered the product not reasonably safe)

Liability for Battery

A defendant is liable for battery if the defendant intended to cause contact with the plaintiff's person and the defendant's affirmative conduct caused contact that was harmful or offensive to the plaintiff.

Proximate Cause

A defendant is liable for reasonably foreseeable consequences resulting from his conduct. In addition, the type of harm must be foreseeable, although the extent of harm does not need to be foreseeable. A defendant's liability is limited to those harms that result from the risks that made the defendant's conduct tortious, within the scope of liability of the defendant's conduct.

Use of Deadly Force to Defend Third Party

A defendant may use deadly force to defend a third party when the defendant reasonably believes (1) the plaintiff is intentionally inflicting or about to intentionally inflict unprivileged force on the third party, (2) the third party is subject to death, serious bodily harm, or rape, and (3) the defendant can prevent that harm only by immediate deadly force.

Manufacturing Defect

A deviation from what the manufacturer intended the product to be that causes harm to the plaintiff (the test is whether the product conforms to the defendant's product specifications)

Strict Liability for Harm by Domestic Animal

A domestic animal's owner is strictly liable for injuries caused by that animal if he knows or has reason to know of the animal's dangerous propensities, and the harm results from those dangerous propensities.

Duty of Care

A duty of care is generally owed to all persons who may foreseeably be injured by the defendant's course of conduct.

Merchant's Privilege

A merchant is privileged to use force against another for the purpose of (i) investigating, (ii) recapturing, or (iii) facilitating an arrest. To be entitled to this privilege, the merchant must reasonably believe that the other has wrongfully (i) taken/is attempting to take merchandise; or (ii) failed to pay. In addition, the merchant's use of force against the other must be (i) on or near the premises, (ii) reasonable, and (iii) for a reasonable time.

Partial Comparative Negligence

A plaintiff must be less than 50% responsible for causing his or her own injuries to recover under comparative negligence; otherwise, contributory negligence applies.

Doctrine of Avoidable Consequences

A plaintiff seeking to recover under a theory of negligence must take reasonable steps to mitigate damages after the defendant commits a tort. In pure comparative-negligence jurisdictions, the plaintiff's failure to mitigate damages reduces the plaintiff's recovery by the amount of damages that could have been avoided had the plaintiff used reasonable care after the defendant's tort was committed.

Standard of Care for Professionals

A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community.A specialist may be held to a higher standard than a general practitioner because of his superior knowledge.

IIED against a public figure

A public figure may recover for intentional infliction of emotional distress based on the defendant's publication if the defendant (1) acted in an extreme and outrageous manner, (2) intentionally or recklessly caused the public figure severe emotional distress, and (3) published a false statement of fact with actual malice.

Public Disclosure of Private Facts

Actionable if the publication would be highly offensive to a reasonable person, and is not of legitimate concern to the public

Public Necessity (Defense)

Allows a person to enter plaintiff's land to prevent an imminent public disaster. Not liable for damage if actions were reasonable or had a reasonable belief that necessity existed, even if initial entry was not necessary

Private Necessity (Defense)

Allows a person to enter plaintiff's land to protect her own person or property from harm. Not liable for trespass but responsible for actual damages

Liability for Trespass

Although a trespass is excused when it arises from private necessity—i.e., an intrusion that is, or reasonably appears to be, necessary to protect oneself, third parties, or property—the trespasser is still liable for actual damages caused by the trespass unless the entry was for the landowner's benefit.

Intervening Events - Torts

An act or event occurring after the defendant's tortious act and before the plaintiff's injury

Firefighter's Rule

An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional's injury if the injury results from a risk inherent in the job.

Respondeat Superior

An employer is vicariously liable for any tort committed by its employee while acting within the scope of the employment relationship (as seen here). But when the employee's liability has been discharged by the employer—e.g., payment of a judgment for damages—the employer can seek indemnity (i.e., full compensation) from the employee for its loss.

Effect of an Exculpatory Clause

An exculpatory clause in a contract can constitute an express assumption of the risk by the plaintiff that operates as an affirmative defense to a negligence action.

Superseding Cause

An intervening event that breaks the chain of proximate causation between the defendant's tortious act and the plaintiff's harm is a superseding cause. An unforeseeable intervening event is generally treated as a superseding cause, while a foreseeable intervening event generally is not.

Public Nuisance

An unreasonable interference with a right common to the general public. A private citizen has a claim for public nuisance only if that citizen suffers harm that is different in kind from that suffered by members of the general public.

Extreme and Outrageous Conduct (IIED)

Conduct is extreme and outrageous if it exceeds the possible limits of human decency, so as to be entirely intolerable in a civilized society. The character of the conduct must be outrageous and the conduct must be sufficiently unusual to be extreme.

Intrusion upon Seclusion

Defendant's acts of intrusion into plaintiff's private affairs are objectionable to a reasonable person

Several Liability

Each tortfeasor is liable for portion of damages corresponding to his/her proportionate fault (eg, 15% of damages for 15% fault)

Pure Several Liability

Each tortfeasor is liable only for his proportionate share of the plaintiff's damages and cannot collect anything from the other tortfeasor

Liability of Employee

Employer is liable for an employee's torts committed within the scope of employment; can include intentional torts if within scope of employment

Evidence of a Custom

Evidence of a custom in a community or an industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive.

Extreme and Outrageous Conduct Acts

Flagrant indecency Exploiting known & special vulnerability Abusing authority Repeated harassment

Implied Assumption of Risk

Generally, a plaintiff must voluntarily encounter a known, specific risk in order to have impliedly assumed that risk. Most courts hold that the voluntary encountering must also be unreasonable.

Pure Comparative Fault

In a pure comparative-negligence jurisdiction, the plaintiff's or the defendant's recovery is reduced by that party's percentage of fault.

Substantial Factor Test

In cases in which the conduct of two or more defendants may have contributed to a plaintiff's indivisible injury, each of which alone would have been a factual cause of that injury, the test applied by most courts is whether the defendant's tortious conduct was a substantial factor in causing the plaintiff's harm.

Last Clear Chance Doctrine

In contributory-negligence jurisdictions, the plaintiff may mitigate the legal consequences of her own contributory negligence if she proves that the defendant had the last clear chance to avoid injuring the plaintiff but failed to do so. The last clear chance doctrine has been abolished in most comparative-fault jurisdictions. Instead, the plaintiff's negligence is considered in determining the recovery to which the defendant is entitled.

Land Possessor's Duty to Invitees

Inspect for unknown dangers, make safe OR warn AND prevent harm from active operations

Vicarious Liability

Legal doctrine under which a party can be held liable for the wrongful actions of another party.

Liability for Intentional Misrepresentation

Liability for intentional misrepresentation arises when (1) the defendant knowingly or recklessly misrepresents a material fact with the intent to induce the plaintiff's reliance and (2) the plaintiff reasonably relies on the misrepresentation and suffers pecuniary loss as a result.

Libel

Libel is defamation by words written, printed, or otherwise recorded in permanent form. Generally, and subject to constitutional restrictions, presumed damages may be awarded for libel.

Punitive Damages

Monetary damages that may be awarded to a plaintiff to punish the defendant and deter outrageous, malicious, or evil conduct

P's burden for Joint and Several Liability

P must first prove that EACH defendant was negligent

Vicarious Liability of Parents

Parents are generally not vicariously liable for their child's tort unless the child was acting as their agent or a state statute imposes liability on the parents for their child's tortious conduct.

Liability of Parents

Parents may be liable for failure to use reasonable care to prevent minor child from causing foreseeable harm to others Example: parent fails to warn others about child's violent tendencies

Duty of parents to children

Parents owe a duty to exercise reasonable care to prevent their minor child from causing foreseeable harm to others.

False Light

Plaintiff must prove that defendant published facts about plaintiff or attributed views or actions to plaintiff that place him in a false light and are highly offensive to a reasonable person

Damages in Medical Malpractice Action

Plaintiff must prove that the defendant's conduct was the actual and proximate cause of the plaintiff's injuries. Actual cause exists when the plaintiff's harm would not have occurred but for the defendant's conduct.

Abatement (eliminating the nuisance)

Private Nuisance: Reasonable force is permitted to abate the nuisance; P must give D notice of the nuisance first and D must refuse to act before action can be taken. Public Nuisance: Absent unique injury, public nuisance may be abated only by public authority.

Liability for Private Nuisance

Private nuisance is a substantial and unreasonable interference with the use and enjoyment of the plaintiff's property. An interference is substantial if a normal person in the community would find the interference offensive, annoying, or intolerable—even if the plaintiff is not personally bothered by it.

Publicity in a False Light

Publicity given to false information about plaintiff with actual malice that places him/her in highly offensive & false light & results in damages

Public Disclosure of Private Facts Definition

Publicity given to highly offensive & private matter concerning plaintiff that is not of legitimate public concern & results in damages

Defenses to Nuisance Claims

Regulatory compliance is a partial defense if the defendant is following the law; Coming to the nuisance is a defense

Slander

Slander is defamation by spoken word, gesture, or any form other than libel. slander requires proof of special damages unless it constitutes slander per se.

Strict Products Liability

Strict products liability claims can be brought against commercial suppliers or sellers—i.e., those in the business of manufacturing, selling, or otherwise distributing products of the type that harmed the plaintiff. However, service providers are not subject to strict products liability.

Conversion

The defendant intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff of the use of the chattel.

Trespass to Chattel

The defendant intentionally interferes with the plaintiff's right of possession by either:i) Dispossessing the plaintiff of the chattel; or ii) Using or intermeddling with the plaintiff's chattel. Note: Trespass to chattels requires that the plaintiff show actual harm to or deprivation of the use of the chattel for a substantial time.

Eggshell Skull Rule

The defendant is liable for the full extent of the plaintiff's injuries that may be increased because of the plaintiff's preexisting physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable.

Trespass to Land

The defendant's intentional act causes a physical invasion of the land of another.

Firefighter's Rule exception

The firefighter's rule bars emergency professionals from recovering for harm that resulted from a risk inherent to their jobs. However, such professionals may recover for harm caused by another's negligence if the harm did not result from a risk inherent to the professional's job.

General Standard of Care

The general standard of care imposed is that of a that of a reasonably prudent person under the circumstances. The standard is an objective one. Under this standard, the defendant is presumed to have average mental abilities and the same knowledge as an average member of the community, but a defendant's particular physical characteristics (e.g., blindness) are taken into account. If a defendant possesses special skills or knowledge, she must exercise her superior competence with reasonable attention and care.

Duty to Warn Consumers

The manufacturer of a prescription drug or medical device typically satisfies its duty to warn the consumer by informing the prescribing physician, rather than the patient, of problems with the drug or device.

Trespass to Land

The physical invasion of another's land and intent to enter the land or cause physical invasion

Express Consent Defense

The plaintiff expressly consents to the defendant's otherwise tortious intentional conduct if the plaintiff is willing for that conduct to occur. Such willingness may be express or inferred from the facts.

Contributory Negligence

The plaintiff's contributory negligence (i.e., failure to exercise reasonable care for her own safety) is a complete bar to recovery, regardless of the percentage that the plaintiff's own negligence contributed to the harm.

Pure Comparative Negligence

The plaintiff's full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff's fault bears to the total harm.

Failure to Warn Defect

The product is defective in neither design nor manufacture, but it poses some inherent danger about which the manufacturer has failed to provide adequate warning. Courts apply a "reasonableness" test to determine if the warnings adequately alert consumers to the product's risks.

Imminence Requirement

The threatened bodily harm or offensive contact must be imminent, i.e., without significant delay. Threats of future harm are insufficient, as are threats made by a defendant too far away to inflict any harm; but threat of future contact can satisfy the imminence requirement in some circumstances.

Medical Malpractice Action

To recover damages in a medical malpractice action (a specialized negligence claim), the plaintiff must prove that the physician's conduct fell below the relevant professional standard of care and caused the plaintiff physical harm. Causation is proved when the plaintiff shows that the defendant's conduct was the actual and proximate cause of the plaintiff's injuries. Actual cause exists when the plaintiff's harm would not have occurred but for the defendant's conduct.

Transferred Intent Doctrine

Transferred intent exists when a person intends to commit an intentional tort against one person but instead commits the intended tort against a different person.

Appropriation of name or likeness

Unauthorized use of P's name or likeness for personal benefit

Joint and Several Liability

Under the doctrine of joint and several liability, each of two or more tortfeasors who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. The plaintiff has the choice of collecting the entire judgment from one defendant, the entire judgment from another defendant, or portions of the judgment from various defendants, as long as the plaintiff's entire recovery does not exceed the amount of the judgment.

risk-utility test

Under the risk-utility test, a product is defectively designed if (1) the design creates a foreseeable risk of physical harm and (2) that risk could have been mitigated by a reasonable alternative design—e.g., a safer design available at a reasonable cost.

Land Possessor's Duty to Known or Anticipated Trespassers

Warn of known artificial dangers AND use reasonable care in active operations

Land Possessor's Duty to Licensees

Warn of known latent defects & use reasonable care in active operations

Injury to Land Entrant Duty

When a land entrant is injured on land that the defendant possesses, the entrant's status is at issue. That is because, under traditional common-law rules, the duty of care that a land possessor owes to a land entrant depends on whether the entrant was an invitee, a licensee, or a trespasser.

Elements for Public Nuisance

a public nuisance suit is typically brought by a public entity (e.g., a state) and requires proof that: the defendant interfered with a public right—e.g., affecting the public at large by emitting a noise that disturbs an entire neighborhood and that interference was unreasonable—i.e., it either (1) significantly affected public health, safety, peace, or property rights or (2) violated an ordinance, statute, or administrative regulation.

Private Nuisance

an activity that substantially and unreasonably interferes with the use and enjoyment of someone's land

Private Necessity

an intrusion that is, or reasonably appears to be, necessary to protect oneself, third parties, or property—the trespasser is still liable for actual damages caused by the trespass unless the entry was for the landowner's benefit.

Duty

an obligation of law imposed on a person to perform or refrain from performing a certain act

Intent for Battery

defendant (1) intends to cause contact with the plaintiff's person, (2) intends to cause contact with a third party but instead causes contact with the plaintiff, or (3) intends to commit an assault and instead commits a battery.

Liability for Invasion of Privacy Based on Misappropriation

defendant (1) uses the plaintiff's name, likeness, or an item closely associated with the plaintiff without authorization, (2) obtains a benefit, and (3) causes the plaintiff an injury.

Innkeeper Liability

innkeepers only owe a duty to use ordinary care to protect their guests while they are on the premises.* Ordinary care is the care that a reasonably prudent person would use under the circumstances.

Standard of Care for Children

reasonable child of similar age, intelligence, and experience unless undertaking a high risk activity that is characteristically undertaken by adults

Defamation

slander or libel; a false statement that causes ridicule or damage to a reputation. A plaintiff who is public figure or official can recover for defamation only if the plaintiff proves that the defendant made a false statement about the plaintiff with actual malice—i.e., with knowledge or reckless disregard of the statement's falsity.

Breach

the failure to meet the duty obligation

Elements of Assault

the plaintiff's reasonable apprehension of an imminent harmful or offensive bodily contact caused by the defendant's action or threat with the intent to cause either the apprehension of such contact or the contact itself.