Bar Exam Torts

Defense of Absolute and Qualified Privilege

Defamation defense; want to encourage someone to speak out, no definitive test for qualified, absolute is marital and governmental privileges

Slander

Defamation is spoken; plaintiff must prove special damages

Libel

Defamation written or broadcast; damage is presumed

Actual cause: substantial factor

Defendant's conduct was a substantial factor in causing the injury

Defenses to Intentional Torts (listed)

Defenses to Intentional Torts (listed)

Negligence: Duty: Foreseeable plaintiff

Definition: you only a duty of care to those who would be otherwise foreseeable to your negligence Unforeseeable plaintiff? An unforeseeable plaintiff is someone who were not within the foreseeable zone of danger, measured from the time of the negligent conduct. Foreseeable plaintiffs: 1) rescuers 2) viable plaintiffs

Vicarious liability: auto owners/drivers

General rule: automobile owners are not vicariously liable for the torts of other drivers UNLESS EXCEPTIONS: 1) family car doctrine: household member using car with permission 2) permissive use doctrine: anyone who is given permission to use it

Vicarious liability: parents/children

General rule: parents are not vicariously liable for the torts of their kids EXCEPTION: intentional torts up to statutory amount of dollars

Publication of private facts about plaintiff

Highly offensive to the reasonable person and must also be widely disseminated. Would a reasonable person find the publication of these facts to he highly offensive? Ex: Joey Tribbiani's VD posters

Publication of facts placing plaintiff in a false light

Highly offensive to the reasonable person, and must be widely disseminated Ex: "Johnson tests positive for steroids" w/ Magic Johnson's photo, not Ben Johnson

Invasion of plaintiff's privacy or seclusion

Highly offensive to the reasonable person; plaintiff must be in some place where she has an expectation of privacy Ex: Jennifer Aniston topless tanning in her backyard

Owner/Occupier: Undiscovered Trespassers

If an undiscovered trespasser is found on your land, you have NO duty to them -no standard of care analysis finished

Proximate Cause Rules

If result was unforeseeable, let the defendant go if result was foreseeable, hold the defendant liable EXCEPTION: In an indirect cause case, if the intervening force was an unforeseeable intentional tort or crime, defendant will NOT be liable, despite foreseeability

Duty

In order to have a duty, you need 1) a foreseeable plaintiff and 2) a standard of care

Tort Immunities

Intra-family: gone Charitable: gone Governmental: immunity is available for governmental functions, NOT proprietary functions Proprietary: would a private person normally perform this function? if yes, then it is proprietary

Proximate Cause: direct cause

It was an uninterrupted chain of events between negligent at and injury will be almost always foreseeable

Appropriation by defendant of plaintiff's name or picture for defendant's commercial gain

Needs to be in the promotion of goods or services Ex: Celebrity endorsements that weren't signed off on

Owner/Occupier: dangerous condition discovered trespasser

O/O is responsible for 1) artificial conditions involving 2) a risk of serious injury 3) that the o/o knows of Artificial: something that a person has put up on the land that nature normally would not

O/O: dangerous condition: licensee

O/O is responsible for 1) dangerous conditions that 2) o/o knows of Licensee: someone who is on the land for his/her own purpose, like a door-to-door salesman and social guests dangerous: can be either artificial or natural

O/O: dangerous conditions: invitees

O/O is responsible for dangerous conditions that o/o SHOULD know of Invitees: someone who is on the land for the o/o's purpose, like a public invitee O/O must make a reasonable inspection of the property for the benefit of the invitees MAKE THIS THE DEFAULT POSITION!!

Distinctions: pure and partial comparative effect

Partial: there is no recovery if one was more negligent than the other party Pure: even the more negligent party can recover ASSUME PURE FOR BAR EXAM

Slander Per Se

Particularly devastating to reputation; damages presumed; categories are: 1) business or profession, 2) crimes of moral turpitude, 3) loathsome disease, 4) unchaste woman

Multiple defendant issues

Releases Joint and Several Liability Contribution Indemnification Comparative Contribution

Distinctions btw contributory negligences: last clear chance

Rule: contributorily negligent plaintiff successfully contends that AFTER his negligence, defendant still had the last clear chance to avoid the accident and contributory negligence should be disregarded as a defense Contributory: yes Comparative: no

Comparative contribution

Rule: defendants will ultimately split up judgment according to relative fault

Affirmative duty to act

Rule: there IS no affirmative duty to act Exceptions: 1) there's a special relationship btw the parties 2) duty to control the third persons: right and ability -parents/kids; know or should know that it's required 3) assumption of duty to act by acting 4) plaintiff's peril due to defendant's negligence

First Amendment Defamation

Same elements of regular defamation but with matters of public concern, adding 4. Falsity: plaintiff must prove that the statement was false 5. Fault: plaintiff must prove reckless, intentional (public figure) or negligent (private figure)

Statutory Standards

Statutes in place to replace common law negligence laws in order to prevent specific harms and imposing specific liabilities for those harms, otherwise known as negligence per se 1) statute must be designed to prevent this kind of harm 2) plaintiff must fall within the protected class If the standard doesn't apply, move to common law negligence this only means a conclusive presumption of negligent conduct, does NOT make defendat liable

Professionals Standard

1) A reasonable professional in the same or similar communities 2) specialists will take their expertise into account

Causation

1) Actual Causation: you truly caused the injury, you were the ACTUAL cause (but for, substantial factor, alternative causes) 2) Proximate Causation: a way for the jury to let a negligent defendant who actually caused an injury off based on lack of foreseeability (direct cause, indirect cause)

Duty: Standards: Reasonable Person

1) An objective test standard, the standard of care in this case is how a reasonable person would react under these circumstances 2) An invented person, assigned with invented person traits 3) Defendant's physical characteristics WILL be taken into account 4) Disabled defendant: if defendant is aware of his/her disability, he/she is supposed to act as a reasonable person with it would act

Defenses to negligence

1) Contributory Negligence 2) Comparative negligence 3) Assumption of the risk

Vicarious liability: respondeat superior

1) Employers are liable for torts of employees committed within the scope of employment. Generally no liability for independent contractors 2) Intentional torts are NOT within the scope of employment EXCEPTION: employer will be liable for: 1) authorized agent to use force 2) this is a job where friction is generated 3) employee is trying to further employer's business

Negligence: Duty: Standards of Care

1) Reasonable Person Standard 2) Children Standard 3) professionals standard 4) Common carrier standard 5) owner/occupier standard

Private Nuisance

1) Substantial, unreasonable interferences with one's use and enjoyment of the land 2) plaintiff must have either possession or the right to immediate possession

Contribution

1) Where defendants are more or less equally responsible, they will ultimately share the amount equally 2) When is this used? Where a defendant, because of joint and several liability, has paid more than his/her fair share of the judgment and wants the other defendants to contribute or indemnify 3) defendant from whom contribution is sought must also be liable, not applicable to intentionals

Children Standard

1) a subjective standard, it is the standard of a child of like age, like intelligence and like experience EXCEPTION: if the child is engaged in adult activities, he will be held to the reasonable person standard

Prima Facie Strict Liability

1) absolute duty to make safe 2) breach of that duty 3) causation 4) damages

Public Nuisance

1) act which unreasonably interferes with health, safety or property rights of the community 2) private persons may recover only if he/she has suffered unique damage not suffered by the public

Indemnification

1) an indemnified defendant can get EVERYTHING back from other defendants 2) When is this used? Where a defendant, because of joint and several liability, has paid more than his/her fair share of the judgment and wants the other defendants to contribute or indemnify 3) Grounds: a) the other defendant is a LOT more responsible, b) vicarious liability, c) indenmification in products cases

Nuisance

1) can be based on either intentional, negligence, or strict liability 2) private and public nuisances 3) standard: conduct must be objectionable to an average person, an objective test standard 4) there is a balancing of the interests as to how the court should award

Eggshell Thin-skulled plaintiff

1) not an unforeseeable result -someone has major brain damage from something that anyone else would just have a bruise 2) It is only necessary that someone is able to foresee an injury, not the extent of the injury

Knowing Contributory Negligence

1) plaintiff knew of the risk 2) the plaintiff voluntarily proceeded in the face of it To add assuming the risk: 3) the plaintiff was unreasonable in doing so

Products liability: Strict liability

1) same elements as strict liability 2) strict liability test: an unreasonably dangerous condition 3) foreseeable plaintiff: zone of danger 4) ANYONE up the chain of commerce can be a foreseeable defendant

Exceptions to assuming the risk

1) there was no other viable alternative 2) plaintiff's emergency or another's

Common Carrier/Inkeeper standard

1) they will be held for even the slightest negligence

Vicarious liability

1) when someone is liability for the tort of another 2) respondeat superior 3) auto owners/drivers 4) parents/children

Prima Facie Trespass to Land

1. Act of physical invasion by defendant: not necessary to go on the land, but some physical object does 2. Of plaintiff's land: not only surface, but reasonable distance up and down from the land

Branches of Invasion of Right to Privacy

1. Appropriation by defendant of plaintiff's name or picture for defendant's commercial gain 2. Invading in plaintiff's privacy or seclusion 3. Publication of facts placing plaintiff in a false light 4. Publication of private facts about plaintiff

Defamation

1. Defamatory statement about the plaintiff (statement of FACT reasonable understood to be about plaintiff) 2. Publication (communicated to a third person made intentionally or negligently and 3rd party was capable of understanding) 3. Damage to Plaintiff's Reputation

Steps for Consent

1. Did plaintiff have capacity to consent? 2. Was consent expressly or impliedly given? (mistake, fraud, conversion; custom and usage or plaintiff's conduct) 3. Did defendant stay within the boundaries of plaintiff's consent?

Prima Facie Conversion

1. Dispossession or complete destruction 2. Of plaintiff's property

Prima Facie Battery

1. Harmful/Offense contact -unpermitted contact 2. With plaintiff's person -anything connected to the plaintiff 3) intent on the part of the defendant to bring about harmful/offensive contact 4) causation -direct or indirect contact, gotta set the motion in force

Necessity

1. Is the tort a property tort? 2. Public or Private Necessity? (public: benefit of many, absolute and unlimited privilege; private: benefit of limited and liable for damage caused)

Prima Facie Misrepresentation

1. Misrepresentation (must be a spoken statement of fact) 2. Scienter (malice, knowing its falsity or acting in reckless disregard; is replaced with negligence in a negligent misrepresentation issue) 3. Intent to Induce Reliance 4. Justifiable Reliance 5. Damages

Prima Facie Intentional Infliction of Emotion Distress

1. Outrageous Conduct -extreme; can be: continuous, consider the type of plaintiff, and type of defendant 2. intent on part of defendant for plaintiff to suffer severe emotional distress, or at least reckless disregard 3. Damages: physical injury not required, but substantial distress needed 4. causation

Prima Facie Trespass to Chattels

1. Physical Damage 2. of Plaintiff's property

Prima Facie Assault

1. Reasonable Apprehension -must be reasonable 2. Of an immediate Battery -words alone are not enough, need conduct that coincides with the words 3) intent to bring about that reasonable apprehension 4) causation of the apprehension

Prima Facie False Imprisonment

1. Sufficient act of restraint -threats are enough, inaction can be enough, plaitiff must know they're detainted, shoplifting exception 2. Of a bounded area -freedom of movement limited in all directions; not bounded if there is a reasonable means of escape and plaintiff knows about it 3) intent to bring about that result 4) causation

Prima Facie Interference with Business Relations

1. Valid Relationship between plaintiff and third party (can be prospective or existing) 2. Defendant's knowledge of relationship 3. Intentional Interference with that relationship 4. Damages

Steps for Defense Privileges

1.) Is the tort being defended against occurring now or JUST about to occur? (if already committed, no defense; exception is hot pursuit) 2. Is there a reasonable belief that a tort has been committed? 3. Was proper force used to defend? (can be deadly force; never deadly for defense of property, only people)

Owner/Occupier standard

3 Steps: 1) make sure defendant is an owner/occupier or in privity with one 2) determine if the injury happened on or off the land 3) determine if plaintiff is an undiscovered trespasser, OR if you have anyone else, determine what caused the injury -1) an activity or 2) a dangerous condition

Multiple defendants: Release

A release does not release other tortfeasors unless it expressly does so

Actual Cause: But For

An act or omission to act is the cause in fact of an injury when the injury would not have occurred BUT FOR the act

Strict liability: specific situation

Animals a) you are strictly liable for pets with inherent dangerous propensities b) you only become strictly liable for domestic pets at the second bite Abnormally Dangerous/Ultrahazardous situation a) SUPER CAREFUL defendant fact pattern -doesn't matter, is strictly liable

Defenses for Strict Liability

Contributory Negligence: a) knowing: plaintiff does not recover b) unknowing: plaintiff always recovers Comparative Negligence a) knowing and unknowing: both can be asserted against recovery b) plaintiff recovers what they would recover under that state's comparative negligence rules

Distinction between contributory and comparative negligence: effect of contributory negligence

Contributory Negligence: ANY contributory negligence COMPLETELY BARS recovery Comparative Negligence: contributory negligence reduces recovery, but not bars

Distinctions btw contrib/comparative: implied assumption of the risk

Contributory negligence: allowed Comparative negligence: not allowed

Distinctions btw contributory negligences: defendant's "reckless" tortious conduct

Contributory: this will not be a good defense Comparative: will offset the amount of the award

O/O Infant trespassers/attractive nuisance doctrine

The child did NOT understand the risk that was involved 1) there is a dangerous condition present on the land of which the owner is/should be aware 2) owner that infants frequent the vicinity of the condition 3) condition is likely to cause injury, is dangerous because of the failure not to appreciate the risk 4)expense of remedying the situation is slight compared with the magnitude of the risk

O/O: Discharge of duties

The o/o can discharge his duties by warning or making safe the dangerous condition EXCEPTION: there is NO liability for very obvious dangerous conditions

Owner/Occupier: Activity standard

The status of the plaintiff is irrelevant, because this will always be ordinary negligence -that means that it is a reasonable person standard

Survival and wrongful death

This is a derivative action, which means that plaintiff will stand in no better position than decedent would have stood in had he/she lived

Res Ipsa Loquitur

This is a nuance in breach, where circumstantial evidence shows that a particular injury indicates breach of a duty Fact pattern will indicate that plaintiff does not have solid evidence to establish negligent conduct on defendant's part THIS IS A PROBABILITY INFERENCE TEST: 1) inference of negligence: usually wouldn't happen if someone wasn't negligent 2) negligence attributed to defendant: evidence connects defendant with negligence -the instrumentality causing the injury was within defendant's EXCLUSIVE control 3) plaintiff not contributorily negligent Defendant will NOT win a motion for a directed verdict

Damages

You take the plaintiff's property as you find it there IS a duty to mitigate Collateral source: damages not reduced because of payments from other sources

Proximate cause: indirect cause

between negligent act and injury, there is an intervening force which combines with the prior act to cause injury

Products liability: feasible alternatives

if one could have cured the defect for a minor amount of money relative to the risk involved, he/she should have done it AND a warning would not save them

Negligent infliction of emotional distress

inflicting emotional distress on someone within the foreseeable zone of danger 1) plaintiff must suffer injury -shock is sufficient 2) plaintiff MUST be within the target zone -so close, you have to like be in the car, or sitting right next to the injured person

products liability: product use incidental to performance of services

strict liability is unavailable ex.: defective blood being used in a medical procedure

Owner/Occupier: dangerous condition standard

the plaintiff's status is relevant, because the owner/occupier is responsible for 1) different types of dangerous conditions depending on 2) the type of plaintiff

Products Liability: leaving defendant's control

there is an inference that the defect existed when it left any given defendant's control if, since that time the product has moved thru the normal channels of distribution

Actual cause: alternative causes

two or more negligent defendants, but it is not certain as to which caused the injury If this occurs, the plaintiff sues both, and then the defendants will have the burden of proof to show the one who caused, lest they both be held liable

Exceptions to statutory standards

1) compliance would be more dangerous: a) compliance would be more dangerous than noncompliance, b) compliance would be impossible 2) effect of compliance with an applicable statute: complying with the statute does NOT mean that, in this case, the circumstances required more

Prima Facie Negligence

1) duty 2) breach 3) causation 4) damages

Products liability: negligence

1) focus on defendant's conduct 2) same elements as negligence 3) conduct possibilities: 1) negligent design, 2) negligent manufacture, 3) negligent warnings, 4) negligent inspections 4) Anyone in the foreseeable zone of risk is a plaintiff 5) who can be a defendant? usually just manufacturers on this theory

Prima Facie for Intentional Torts

Act: any volitional movement Intent: either with substantial certainty, transferred intent, or standard intent Causation: defendant's act was a substantial factor in bringing about the result

Owner/Occupier: What were you doing on the land?

Activity: anything you're doing on the land Dangerous condition: something on the property that would make the situation dangerous

Products liability: Warnings

Adequate warnings will generally insulate from liability

Negligence: Breach

Breach is when the defendant uses negligent conduct, determined if the defendant met the appropriate standard of care One consideration: res ipsa loquitur

General Considerations

Vicarious Liability Multiple Defendant Issues Survival and Wrongful Death Immunities

Defenses to Interference

Was there privilege? Competitor's privilege with interference of prospective relationships Close relationship with defendant -is the 3rd party a relative?

Contributory Negligence

When plaintiff's conduct contributed to their injury Two situations: 1) knowing and assuming the risk and 2) unknowing

Joint/Several Liability

Where multiple acts cause indivisible injury, each defendant will be potentially liable for the entire judgment amount ASSUME TORTFEASORS ARE J/S LIABLE

Products Liability

Who can you successfully hold liable for products liability? ANY commercial supplier as long as you can establish two requirements: 1) defect causing the injury must have existed at the time the product left the defendant's control 2) your workable theory: negligence or strict liability