Torts

Intent

(1) To produce a consequence as a purpose to produce that consequence OR (2) knowledge that the consequence is substantially certain to results.

Intentional tort defenses - Defense of others

A person need only have a reasonable belief that the person being aided would have the right of self-defense. thus, even if the person aided has no defense (e.g., if he were the initial aggressor).

Comparative Negligence Illustrations

1) Partial Comparative Negligence Jurisdiction—Single Defendant Plaintiff is 30% negligent and Defendant is 70% negligent in causing the accident. Each party suffers $100,000 in damages. Plaintiff will recover $70,000 from Defendant—$100,000 minus 30% ($30,000). Defendant will recover nothing from Plaintiff because Defendant was more than 50% at fault. 2) Partial Comparative Negligence Jurisdiction—Multiple Defendants Plaintiff is 40% negligent in causing the accident and suffers $100,000 in damages. D1 is 35% negligent and D2 is 25% negligent. Plaintiff can recover $60,000 from either D1 or D2 under joint and several liability rules (infra, VII.B.1.). Note that if D1 or D2 also suffered damages, each of them would have a claim against the other two negligent parties because each one's negligence is less than the total negligence of the other two. 3) Pure Comparative Negligence Jurisdiction Same facts as in illustration 1). Plaintiff has a right to recover $70,000 from Defendant, and Defendant has a right to recover $30,000 from Plaintiff. Defendant's damages will be offset against Plaintiff's damages, and Plaintiff will have a net recovery of $40,000.

Defenses to defamation (consent)

As will all torts, consent is a complete defense to a defamation action. (The rules relating to consent under intentional torts also apply here)

Affirmative Duties to Act (Nonfeasance)

1) General Rule—No Duty to Act As a general matter, no legal duty is imposed on any person to affirmatively act for the benefit of others. This general rule is, however, subject to exception, as indicated below. 2) Assumption of Duty to Act by Acting One who gratuitously acts for the benefit of another, although under no duty to do so in the first instance, is then under a duty to act like an ordinary, prudent, reasonable person and continue the assistance. Example: Defendant, under no duty to aid Plaintiff who has been injured, picks her up and carries her into a room. He then leaves her there unattended for seven hours and Plaintiff's condition is worsened. Defendant, having acted, may be considered to have breached his duty to act reasonably. a) "Good Samaritan" Statutes A number of states have enacted statutes exempting licensed doctors, nurses, etc., who voluntarily and gratuitously render emergency treatment, from liability for ordinary negligence. Liability still exists, however, for gross negligence. 3) Peril Due to Defendant's Conduct One whose conduct (whether negligent or innocent) places another in a position of peril is under a duty to use reasonable care to aid or assist that person. 4) Special Relationship Between Parties A defendant having a special relationship to the plaintiff (e.g., parent-child, employer-employee) may be liable for failure to act if the plaintiff is in peril. a) Duty of Common Carriers Common carriers are under a duty to use reasonable care to aid or assist passengers. b) Duty of Places of Public Accommodation Innkeepers, restaurateurs, shopkeepers, and others who gather the public for profit have a duty to use reasonable care to aid or assist their patrons and to prevent injury to them from third persons. 5) Role of Contract in Creating Duty a) Nonfeasance—No Duty In general, for mere nonfeasance, there is no tort duty of care, regardless of whether the defendant promises to undertake action gratuitously or for consideration. Liability for breach of contract extends only to parties in privity. b) Misfeasance—Due Care Required However, for misfeasance, failure to perform with due care contractual obligations owed to one may give rise to violation of a legal duty. Example: Pursuant to a contract with the building owner, Defendant inspected and repaired the elevator, and did so carelessly. The elevator operator is injured as a result. Defendant is liable to the operator. 6) Duty to Control Third Persons Generally, there is no duty to prevent a third person from injuring another. In some situations, however, such an affirmative duty might be imposed. In such cases, it must appear that the defendant had the actual ability and authority to control the third person's action. Thus, for example, bailors may be liable for the acts of their bailees, parents may be liable for the acts of their children, employers may be liable for the acts of their employees, etc. It is generally required for imposition of such a duty that the defendant knows or should know that the third person is likely to commit such acts as would require the exercise of control by the defendant.

Additional tests when "but for" test is inadequate

1) Joint Causes—Substantial Factor Test Where several causes commingle and bring about an injury—and any one alone would have been sufficient to cause the injury—it is sufficient if defendant's conduct was a "substantial factor" in causing the injury. Example: Two fires meet and burn a farm. Either fire alone would have done the damage without the other. Under the "but for" test, neither was the "cause," since, looking at either fire alone, the loss would have occurred without it. Rather than reach this result, the courts consider as causes all those things that were a "substantial factor" in causing injury. 2) Alternative Causes Approach a) Burden of Proof Shifts to Defendants A problem of causation exists where two or more persons have been negligent, but uncertainty exists as to which one caused plaintiff's injury. Under the alternative causes approach, plaintiff must prove that harm has been caused to him by one of them (with uncertainty as to which one). The burden of proof then shifts to defendants, and each must show that his negligence is not the actual cause. Example: Alex and Basil both negligently fire shotguns in Clara's direction. Clara is hit by one pellet, but she cannot tell which gun fired the shot. Under the alternative causes approach, Alex and Basil will have to prove that the pellet was not theirs. If unable to do this, they may both be liable. [Summers v. Tice, 33 Cal. 2d 80 (1948)] b) Applied in Enterprise Liability Cases This concept has been extended in some cases to encompass industry groups. Example: Daughters of women who took the anti-miscarriage drug diethylstilbestrol ("DES") contracted cancer as a result of the drug manufacturer's negligence. However, because the cancer appeared many years after the DES was ingested, it was usually impossible to determine which manufacturer of DES had supplied the drug taken by any particular plaintiff. Several courts have required all producers of DES unable to prove their noninvolvement to pay in proportion to their percentage of the market share. [See Sindell v. Abbott Laboratories, 26 Cal. 3d 588, cert. denied, 449 U.S. 912 (1980)]

Effect on Other Doctrines [Comparative negligence]

1) Last Clear Chance Last clear chance is not used in most comparative negligence jurisdictions. 2) Assumption of Risk a) Implied Assumption of Risk Most comparative negligence jurisdictions have abolished entirely the defense of implied assumption of risk. In these jurisdictions, traditional assumption of risk situations must be broken down into two categories: (1) When the defendant has only a limited duty to the plaintiff because of plaintiff's knowledge of the risks (e.g., being hit by a foul ball at a baseball game), a court may protect the defendant simply by holding that the defendant did not breach his limited duty of care. (2) More common is the situation that is a variant of contributory negligence, in that defendant's initial breach of duty to plaintiff is superseded by plaintiff's assumption of a risk (e.g., builder is negligent in not barricading torn-up sidewalk, but pedestrian chooses to use it despite availability of reasonable alternate route). Here, the reasonableness of plaintiff's conduct is relevant: If the plaintiff has behaved unreasonably, plaintiff is contributorily negligent and damages will be apportioned under the state's comparative negligence statute. b) Express Assumption of Risk Most comparative negligence jurisdictions retain the defense of express assumption of risk. 3) Wanton and Willful Conduct In most comparative negligence jurisdictions, plaintiff's negligence will be taken into account even though the defendant's conduct was "wanton and willful" or "reckless." However, plaintiff's negligence is still not a defense to intentional tortious conduct by the defendant.

Strict liability - ABNORMALLY DANGEROUS ACTIVITIES

1. Definition An activity may be characterized as abnormally dangerous if it involves a substantial risk of serious harm to person or property even when reasonable care is exercised. Whether an activity is abnormally dangerous is a question of law that the court can decide on a motion for directed verdict. 2. Test The courts generally impose two requirements for finding an activity to be abnormally dangerous: (i) The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors; and (ii) The activity is not a matter of common usage in the community. Example: In Rylands v. Fletcher, 3 H.L. 330 (1868), the House of Lords held a mill owner strictly liable when a neighbor's mines were flooded by water escaping from the mill owner's reservoir. This was considered an abnormal use in "mining country." (Other examples of abnormally dangerous activities include blasting, manufacturing explosives, crop dusting, and fumigating.) 3. Products Liability There may be strict liability imposed for damage caused by products, depending on the theory used by a court in resolving such problems. (See V.D., infra.)

Strict liability - EXTENT OF LIABILITY

1. Scope of Duty Owed As contrasted with negligence, the duty owed is an absolute duty to make safe the animal, activity, or condition that is classified as "abnormally dangerous," and liability is imposed for any injuries to persons or property resulting therefrom. a. To Whom Is the Duty Owed? In most states, the duty is owed only to "foreseeable plaintiffs"—persons to whom a reasonable person would have foreseen a risk of harm under the circumstances. (Generally, strict liability is not imposed on a defendant's blasting that hurled rock onto a person so far away that no reasonable person would have foreseen a danger. Note, however, that some courts find liability for all blasting harm because of the intrinsic danger of defendant's activity.) b. Duty Limited to "Normally Dangerous Propensity" The harm must result from the kind of danger to be anticipated from the dangerous animal or abnormally dangerous activity; i.e., it must flow from the "normally dangerous propensity" of the condition or thing involved. Example: D's toothless pet leopard escapes from its cage without fault on D's part and wanders into a park, causing P to break her arm while trying to flee. D is strictly liable to P. Compare: D's dynamite truck blows a tire without warning and hits Pedestrian. D is not strictly liable to Pedestrian. However, if the truck then crashed and exploded, and the explosion injured Bystander, D would be strictly liable to Bystander.

Strict liability - LIABILITY FOR ANIMALS

1. Trespassing Animals The owner is strictly liable for the damage done by the trespass of his animals (other than household pets) as long as it was reasonably foreseeable. 2. Personal Injuries a. Wild Animals—Strict Liability The owner is strictly liable for injuries caused by wild animals (e.g., lion or bear), even those kept as pets. b. Domestic Animals—Knowledge Required The owner of a domestic animal (including farm animals) is not strictly liable for injuries it causes. Such liability does, however, attach if the owner has knowledge of that particular animal's dangerous propensities (i.e., propensities more dangerous than normal for that species). This rule applies even if the animal has never actually injured anyone. Some states have "dog bite" statutes, applicable only to dogs, which impose strict liability in personal injury actions even without prior knowledge of dangerous characteristics. c. Persons Protected 1) Licensees and Invitees—Landowner Strictly Liable Strict liability for injuries inflicted by wild animals or abnormally dangerous domestic animals kept by the landowner on his land will usually be imposed where the person injured came onto the land as an invitee or licensee. a) Public Duty Exception An exception is recognized where the landowner is under a public duty to keep the animals (e.g., as a public zookeeper); in such cases, negligence must be shown. 2) Trespassers Must Prove Negligence Strict liability in such cases generally is not imposed in favor of undiscovered trespassers against landowners. Trespassers cannot recover for injuries inflicted by the landowner's wild animals or abnormally dangerous domestic animals in the absence of negligence, e.g., as where the landowner knows that trespassers are on the land and fails to warn them of the animal. a) Compare—Intentional Use of Vicious Watchdogs A landowner who protects his property from intruders by keeping a vicious watchdog that he knows is likely to cause serious bodily harm may be liable even to trespassers for injuries caused by the animal. This liability is based on intentional tort principles: Because the landowner is not entitled to use deadly force in person to protect only property, he also may not use such force indirectly. (See I.D.4.b., supra.)

Intentional tort defenses - Self-defense

A person may use force as is reasonably necessary for protection against potential injury. ONLY REQUIRES REASONABLE BELIEF.

Proximate cause (Direct Cause Cases)

A direct cause case is one where the facts present an uninterrupted chain of events from the time of the defendant's negligent act to the time of plaintiff's injury. In short, there is no external intervening force of any kind. 1) Foreseeable Harmful Results—Defendant Liable If a particular harmful result was at all foreseeable from defendant's negligent conduct, the unusual manner in which the injury occurred or the unusual timing of cause and effect is irrelevant to defendant's liability. Example: D is driving her sports car down a busy street at a high rate of speed when a pedestrian steps out into the crosswalk in front of her. D has no time to stop, so she swerves to one side. Her car hits a parked truck and bounces to the other side of the street, where it hits another parked vehicle, propelling it into the street and breaking the pedestrian's leg. D is liable despite the unusual way in which she caused the injury to the pedestrian. Unforeseeable Harmful Results—Defendant Not Liable In the rare case where defendant's negligent conduct creates a risk of a harmful result, but an entirely different and totally unforeseeable type of harmful result occurs, most courts hold that defendant is not liable for that harm. Example: D, a cabdriver, is driving too fast on a busy elevated highway, threatening P, his passenger, with injury. Without warning, the section of highway that D is on collapses because its support beams had deteriorated with age. P is seriously injured. Even if D's negligent conduct was an actual cause of P's injury (because the cab would not have been on that section of the highway but for D's speeding), courts would not hold D liable for the injury to P.

Duty Regarding Negligent Infliction of Emotional Distress

A duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. The plaintiff usually must satisfy two requirements to prevail: (i) plaintiff must be within the "zone of danger"; and (ii) plaintiff must suffer physical symptoms from the distress. 1) Plaintiff Must Be Within the "Zone of Danger" The plaintiff usually must show that her distress has been caused by a threat of physical impact; i.e., she was within the "zone of danger." Example: Driver negligently ran a red light and skidded to a stop inches away from Pedestrian, who was properly crossing the street in a crosswalk. Pedestrian's shock from nearly being run over caused her to suffer a heart attack. Pedestrian can recover for negligent infliction of emotional distress because she was in the zone of danger. 2) Plaintiff Must Suffer Physical Symptoms from the Distress For the plaintiff to recover damages, most courts usually require that the defendant's conduct cause the plaintiff emotional distress that manifests itself in physical symptoms (e.g., a nervous breakdown, miscarriage, or heart attack, but note that severe shock to the nervous system that causes physical symptoms will satisfy this requirement). Emotional distress without physical symptoms is insufficient in most jurisdictions. 3) Special Situations Where Requirements Not Always Necessary a) Bystander Not in Zone of Danger Seeing Injury to Another Traditionally, a bystander outside the "zone of danger" of physical injury who sees the defendant negligently injuring another could not recover damages for her own distress. A majority of states now allow recovery in these cases as long as (i) the plaintiff and the person injured by the defendant are closely related, (ii) the plaintiff was present at the scene of the injury, and (iii) the plaintiff personally observed or perceived the event. Most of these states still require physical symptoms, but the modern trend is to drop that requirement. Example: Mother sees her child struck by negligently driven automobile on the other side of the street and goes into shock. Most courts would allow recovery. b) Special Relationship Between Plaintiff and Defendant The defendant may be liable for directly causing the plaintiff severe emotional distress that leads to physical symptoms when a duty arises from the relationship between the plaintiff and the defendant, such that the defendant's negligence has great potential to cause emotional distress. Example: Doctor negligently confused Patient's file with another and told Patient he had a terminal illness. Patient, who in fact did not have the illness, was shocked and suffered a heart attack as a result. Patient can recover for negligent infliction of emotional distress. Although there was no threat of physical impact from Doctor's negligence, negligently providing a false diagnosis of a terminal illness creates a foreseeable risk of physical injury solely from the severe emotional distress that is caused. c) Other Situations The plaintiff may be able to recover without proving the two requirements for this tort in special situations where the defendant's negligence creates a great likelihood of emotional distress. These include a defendant providing an erroneous report that a relative of the plaintiff has died or a defendant mishandling a relative's corpse.

Negligence (Duty of care)

A general duty is imposed on all human activity. When a person engages in an activity, he is under a legal duty to act as an ordinary, prudent, reasonable person. A duty of care is owed only to foreseeable plaintiffs. The "unforeseeable" plaintiff problem. Cardozo view (majority) v. Andrews view (minority) Cardozo - according to the Cardozo view in Palsgraf, the second plaintiff can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her in the circumstances, i.e., that she was located foreseeable "zone of danger". Andrews - according to the Andrews view in Palsgraf, the second plaintiff may establish the existence of a duty extending from the defendant to her by showing that defendant has breached a duty he owed P1. In short, d owes a duty of care to anyone who suffers injuries as a proximate result of his breach of duty to someone.

Intentional tort defenses - Necessity

A person may interfere with the real or personal property of another where the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and where the threatened injury is substantially more serious than the invasion that is undertaken to avert it. Public necessity - where the act is for the public good (e.g., shooting a rabid dog), the defense is absolute. Private necessity is where the act is solely to benefit a limited number of people (e.g., the actor ties up his boat to another's dock in a storm), the defense is qualified; i.e., the actor must pay for any injury he causes.

Defamation (Publication)

A statement is not actionable until there has been a "publication." the publication requirement is satisfied when there is a communication to a third person who understood it. It is the intent to public, not the intent to defame, that is the requisite intent. example: d published a false statement that p had given birth to twins. if d neither knew nor had reason to know that p had been married only one month, d is nonetheless liable.

Assault

Assault is the intentional act that causes the π to experience a reasonable apprehension of an Imminent battery). The elements of assault are (1) intent (2) reasonable apprehension (3) an immediate battery.

Name all transferred intent torts

Assault, battery, false imprisonment, trespass to chattel, trespass to land.

No Defense to Intentional Torts (Assumption of risk)

Assumption of risk is not a defense to intentional torts. It is, however, a defense to wanton or reckless conduct.

Fault on D's part

Although at common law defamation liability could be strict, a number of Supreme Court decisions based on the First Amendment now impose a fault requirement in cases involving public figures or matters of public concern. The degree of fault to be established depends on the type of plaintiff, i.e., whether he is a public official or public figure as compared with a private person involved in a matter of public concern.

Proximate cause (Indirect Cause Cases)

An indirect cause case is one where the facts indicate that a force came into motion after the time of defendant's negligent act and combined with the negligent act to cause injury to plaintiff. In short, indirect cause cases are those where intervening forces are present. Whether an intervening force will cut off defendant's liability for plaintiff's injury is determined by foreseeability. 1) Foreseeable Results Caused by Foreseeable Intervening Forces—Defendant Liable Where defendant's negligence caused a foreseeable harmful response or reaction from an intervening force or created a foreseeable risk that an intervening force would harm plaintiff, defendant is liable for the harm caused. a) Dependent Intervening Forces Dependent intervening forces are normal responses or reactions to the situation created by defendant's negligent act. Dependent intervening forces are almost always foreseeable. The following are common dependent intervening forces: (1) Subsequent Medical Malpractice The original tortfeasor is usually liable for the aggravation of plaintiff's condition caused by the malpractice of plaintiff's treating physician. (2) Negligence of Rescuers Generally, rescuers are viewed as foreseeable intervening forces, and so the original tortfeasor usually is liable for their negligence. (3) Efforts to Protect Person or Property Defendant usually is liable for negligent efforts on the part of persons to protect life or property of themselves or third persons endangered by defendant's negligence. (4) "Reaction" Forces Where defendant's actions cause another to "react" (e.g., negligently firing a gun at another's feet), liability generally attaches for any harm inflicted by the "reacting" person on another. (5) Subsequent Disease The original tortfeasor usually is liable for diseases caused in part by the weakened condition in which defendant has placed the plaintiff by negligently injuring her; e.g., injury caused by defendant weakens plaintiff, making her susceptible to pneumonia. (6) Subsequent Accident Where the plaintiff suffers a subsequent injury following her original injury, and the original injury was a substantial factor in causing the second accident, the original tortfeasor is usually liable for damages arising from the second accident. For example, as a result of defendant's negligence, plaintiff's leg is broken. Walking on crutches, plaintiff falls and breaks her other leg. b) Independent Intervening Forces Independent intervening forces also operate on the situation created by defendant's negligence but are independent actions rather than natural responses or reactions to the situation. Independent intervening forces may be foreseeable where defendant's negligence increased the risk that these forces would cause harm to the plaintiff. The following are common fact situations involving independent intervening forces: (1) Negligent Acts of Third Persons Defendant is liable for harm caused by the negligence of third persons where such negligence was a foreseeable risk created by defendant's conduct. Example: D negligently blocked a sidewalk, forcing P to walk in the roadway, where he is struck by a negligently driven car. D is liable to P. (2) Criminal Acts and Intentional Torts of Third Persons If defendant's negligence created a foreseeable risk that a third person would commit a crime or intentional tort, defendant's liability will not be cut off by the crime or tort. Example: D, a parking lot attendant, negligently left the keys in P's car and the doors unlocked when he parked it, allowing a thief to steal it. D is liable to P. (3) Acts of God Acts of God will not cut off defendant's liability if they are foreseeable. Example: D, a roofer, negligently left a hammer on P's roof at the end of the day. P is struck by the hammer when a strong wind blows it off the roof. D is liable to P.

Duties of Possessor to Those on the Premises (invitee)

An invitee is a person who enters onto the premises in response to an express or implied invitation of the landowner. Basically, there are two classes of invitees: (a) Those who enter as members of the public for a purpose for which the land is held open to the public, e.g., museums, churches, airports; and (b) Those who enter for a purpose connected with the business or other interests of the landowner or occupier, e.g., store customers and persons accompanying them, employees, persons making deliveries, etc. A person loses her status as an invitee if she exceeds the scope of the invitation—if she goes into a portion of the premises where her invitation cannot reasonably be said to extend. (Note that the invitation normally does extend to the entrance and steps of a building.) Example: Gas station customer, buying gas, loses status as invitee when she leaves pumps and falls into grease pit inside station. (Reversion to licensee, perhaps even trespasser, status.) Duty Owed The landowner owes an invitee a general duty to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the invitee. This general duty includes the duties owed to licensees (to warn of or make safe nonobvious, dangerous conditions known to the landowner and to use ordinary care in active operations on the property) plus a duty to make reasonable inspections to discover dangerous conditions and, thereafter, make them safe. (a) Warning May Suffice The requirement to "make safe" dangerous conditions usually is satisfied if a reasonable warning has been given. (b) Obviousness of Danger A duty to warn usually does not exist where the dangerous condition is so obvious that the invitee should reasonably have been aware of it. "Obviousness" is determined by all of the surrounding circumstances. Example: A banana peel visible on the floor of a supermarket might not be considered obvious if a shopper's attention would likely be diverted by shelf displays.

Collateral Source Rule

As a general rule, damages are not reduced or mitigated by reason of benefits received by plaintiff from other sources, e.g., health insurance, sick pay from employer. Hence, at trial, defendants may not introduce evidence relating to any such financial aid from other sources. A growing number of states have made exceptions to this rule in certain types of actions (e.g., medical malpractice actions), allowing defendants to introduce evidence of insurance awards or disability benefits. Note: These damages rules also are generally applicable to actions based on intentional torts.

Unforeseeable Results Caused by Unforeseeable Intervening Forces—Defendant Not Liable

As a general rule, intervening forces that produce unforeseeable results (i.e., results that were not within the increased risk created by defendant's negligence) will be deemed to be unforeseeable and superseding. A superseding force is one that serves to break the causal connection between defendant's initial negligent act and the ultimate injury, and itself becomes a direct, immediate cause of the injury. Thus, defendant will be relieved of liability for the consequences of his antecedent conduct. Example: D negligently blocks a road, forcing P to take an alternate road.Another driver negligently collides with P on this road, injuring him. Even though D is an actual (but for) cause of P's injury, the other driver's conduct is an unforeseeable intervening force because D's negligence did not increase the risk of its occurrence. Thus, the other driver is a superseding force that cuts off D's liability for his original negligent act.

Duty to Mitigate Damages

As in all cases, the plaintiff has a duty to take reasonable steps to mitigate damages—in property damage cases to preserve and safeguard the property, and in personal injury cases to seek appropriate treatment to effect a cure or healing and to prevent aggravation. Failure to mitigate precludes recovery of any additional damages caused by aggravation of the injury.

Falsity

At common law, a defamatory statement was presumed to be false. The Supreme Court, however, has rejected this presumption in all cases in which the P is constitutionally required to prove some type of fault. In these cases, the P must prove as an element of the prima facie case that the statement was false.

Intentional Infliction of Emotional Distress

Defendant intentionally or recklessly engages in extreme and outrageous conduct that causes the plaintiff severe emotional distress. The elements of IIED are (1) intent or recklessness (2) extreme and outrageous conduct (3) causation (4) severe emotional distress.

Negligence (Duty of care) [Standard of care]

Basic standard - the reasonable person - D's conduct is measured against the reasonable, ordinary, prudent person. Measured by an objective standard: Physical characteristics - same as defendants - the "reasonable person" is considered to have the same physical characteristics as the defendant. however, a person is expected to know his physical handicaps and is under a duty to exercise the care of a person with such knowledge Average mental ability - defendant must act as would a person with average mental ability. unliked the rule as to physical characters, individual mental handicaps are not considered; low IQ is not excuse / insanity is no defense, and the d is held to the standard of a reasonable person under the circumstances. Same knowledge as average member of community - d is deemed to have knowledge of things known by the average member of the community (fire is hot).individual shortcomings of the particular d are not considered. on the other hand, a d with knowledge superior to that of the average person is required to use that knowledge.

Battery

Battery is the intentional causing of a harmful or offensive contact that touches the plaintiff or something closely connected with the plaintiff. The elements of battery are (1) intent (2) harmful or offensive (3) of the person; or something closely connected with the person (hat).

Negligence (breach of duty)

Breach occurs when a person who owes a duty of care acts unreasonably, thereby causing harm to the plaintiff. The measure of one's breach can be calculated through the Hand formula, which states that B < P * L. The Hand formula states that if the burden (B) to reduce the injury is less than the probability (P) of the harm times the magnitude (L) of the harm, then the party has breached. **Exam - when writing exam, make sure to stay if that person acted as a reasonably prudent person, he would have not done something...**

Negligence (Duty of care) [Particular standards of conduct - children]

Children - a majority of courts take the view that a child is required to conform to the standard of care of a child of like age, education, intelligence, and experience. this permits a subjective evaluation of these factors. Minimum age for capacity to be negligent - there is no minimum age for which it is meaningful to speak of a child being capable of conforming his conduct to a standard of care. each case is dealt with in terms of whether there is evidence that the individual child--plaintiff or defendant--has the experience, intelligence, maturity, training, or capacity to conform his conduct to a standard of care. it is unlikely, nonetheless, that a court would view a child below the age of four as having the capacity to be negligent. Children engaged in adult activities - where a child engages in an activity that is normally one that only adult engage in, most cases hold that he will be required to conform to the same standard of care as an adult in such an activity, e.g., driving an automobile, flying an airplane, driving a motorboat.

Defenses to negligence [Comparative Negligence]

Comparative Negligence The vast majority of states now permit a contributorily negligent plaintiff to recover a percentage of his damages under some type of comparative negligence system. In every case where contributory negligence is shown, the trier of fact weighs plaintiff's negligence against that of defendant and reduces plaintiff's damages accordingly. Example: Defendant negligently drove through a stop sign and collided with Plaintiff, who was contributorily negligent by driving inattentively. Plaintiff suffers damages of $100,000. If a jury finds that Plaintiff was 30% negligent and Defendant was 70% negligent, Plaintiff will recover $70,000. a. Types of Comparative Negligence 1) "Partial" Comparative Negligence Most comparative negligence jurisdictions will still bar the plaintiff's recovery if his negligence passes a threshold level. In some of these states, a plaintiff will be barred if his negligence was more serious than that of the defendant (i.e., the plaintiff will recover nothing if he was more than 50% at fault). In the other states, a plaintiff will be barred from recovering if his negligence was at least as serious as that of the defendant (i.e., the plaintiff will recover nothing if he was 50% or more at fault). a) Multiple Defendants If several defendants have contributed to plaintiff's injury, most of these states use a "combined comparison" approach to determine the threshold level (i.e., plaintiff's negligence is compared with the total negligence of all the defendants combined). 2) "Pure" Comparative Negligence The "pure" variety of comparative negligence, adopted in a third of the comparative negligence states, allows recovery no matter how great plaintiff's negligence is (e.g., if plaintiff is 90% at fault and defendant 10%, plaintiff may still recover 10% of his damages). On the MBE, pure comparative negligence is the applicable rule unless the question specifies otherwise.

Intentional tort defenses - Consent

Consent: A D is not liable for an otherwise tortious act if the P consented to the D's act. Consent may be given expressly; it may also be implied from custom, conduct, or words or by law. (1)Express [P has expressly shown a willingness to submit to D's conduct] (2)Implied [P's consent may also be implied] (a)Apparent Consent is that which a reasonable person would infer from P's conduct. (b)Consent implied by law is when action is necessary to save a person's life or some other important interest in person or property.

Negligence (breach of duty) Custom or Usage

Custom or Usage Custom or usage may be introduced to establish the standard of care in a given case. However, customary methods of conduct do not furnish a test that is conclusive for controlling the question of whether certain conduct amounted to negligence.

Negligence (damages)

Damages are not presumed, actual harm or injury must be shown. Thus, nominal damages are not available in an action in negligence; some proof of harm must be offered.

Trespass to chattels

Defendant intentionally Intermeddles with plaintiff's right of possession in the chattel that causes harm. The elements of trespass to chattel are (1) intent (2) interference (3) causation (4) harm

Defamation

Defamatory language on the part of the defendant that is "of or concerning" the plaintiff and is publicated to a third person who understood it and damages the reputation of the P. The elements of defamation are (1) defamatory language (2) "of or concerning" the P (3) communicated to a third person who understood it and (4) damage to p's reputation Where D refers to a public figure or involves a matter of public concern; two additional elements must be proved: Falsity of the defamatory language; and Fault on d's part

Statutory Standards of Care [Effect of Establishing Violation of Statute]

Effect of Establishing Violation of Statute Most courts still adhere to the rule that violation of a statute is "negligence per se." This means that plaintiff will have established a conclusive presumption of duty and breach of duty. (Plaintiff still must establish causation and damages to complete the prima facie case for negligence.)

Statutory Standards of Care [Effect of Compliance with Statute]

Even though the violation of an applicable criminal statute may be negligence, compliance with it will not necessarily establish due care. If there are unusual circumstances or increased danger beyond the minimum that the statute was designed to meet, it may be found that there is negligence in not doing more.

Statutory Standards of Care [Excuse for Violation]

Excuse for Violation Violation of some statutes may be excused: a) Where compliance would cause more danger than violation; e.g., defendant drives onto wrong side of road to avoid hitting children who dart into his path; or b) Where compliance would be beyond defendant's control; e.g., blind pedestrian crosses against light.

False Imprisonment

False imprisonment is intentionally confining the plaintiff to a bounded area without the plaintiff's consent and the plaintiff is aware of the confinement or is harmed by the confinement. The elements of false imprisonment are (1) intent (2) without plaintiff's consent (3) confined in a bounded area.

Negligence (breach of duty) the hand test

Hand Formula B < PL Carroll Towing Breach = Burden of Prevent < (Probability of Loss * Cost of Loss) B = burden spend $ allow a different loss opportunity cost P = probability of loss L = cost of loss In showing that the plaintiff's proposed alternative conduct was reasonable under the circumstances courts take into account the following factors when evaluating reasonableness of alternative conduct: 1)the cost of making defendant's activity safer 2)the social usefulness of the activity of the defendant 3)the probability of harm of the activity -Basically a cost-benefit analysis to determine if alternative action is reasonable. example: a plaintiff suggests costco should hire a security firm to watch over its retail establishments in order to prevent injuries (i.e. robberies, kidnappings). by doing so, costco would save itself $40,000 in injuries. hiring the firm would cost $50,000. moreover the benefit to society is that costco offers products to consumers at reasonable prices. Does Costco have a duty to hire a security firm? -Most courts would say no. The potential benefits are not justified in light of the costs. The failure of Costco to hire a security firm, even if p's injury could have been avoided, would not be a breach of duty. N.B. risk is difficult to quantify, however it is expressed in the costs to a certain extent and the burden to the defendant is evaluated intangibly in time, inconvenience, and effort. -All that can be expected of the defendant is reasonable care under the circumstances. -There is no expectation that a reasonable person will incur exorbitant costs and inconveniences just to guard against a relatively slight risk of minor injury. -the greater risk or harm, the more the expectation of injury avoidance by the defendant. -in many cases the likely cost is minimal and therefore reasonable. -the analysis becomes more complex as a function of the size of the defendant's enterprise and the magnitude of the risk.

Users of Recreational Land

In almost all states, a different standard applies by statute to users of recreational land. If an owner or occupier of open land permits the public to use the land for recreational purposes without charging a fee, the landowner is not liable for injuries suffered by a recreational user unless the landowner willfully and maliciously failed to guard against or warn of a dangerous condition or activity. Example: The owner of a large tract of undeveloped rural land who permits the general public to use a pond on the land for swimming and fishing would be covered by this type of statute, whereas the owner of a swimming pool who permits his house guests to swim whenever they visit would not be covered by the statute (he would owe his guests the usual duties owed to licensees).

Unforeseeable Extent or Severity of Harm—Defendant Liable

In both direct cause and indirect cause cases, the fact that the extent or severity of the harm was not foreseeable does not relieve defendant of liability; i.e., the tortfeasor takes his victim as he finds him. This is also known as the "eggshell‑skull plaintiff" rule. Thus, where defendant's negligence causes an aggravation of plaintiff's existing physical or mental illness, defendant is liable for the damages caused by the aggravation. Example: A car negligently driven by D collides with a car driven by P. P suffers a slight concussion, which was foreseeable, and also suffers a relapse of an existing mental illness, which was not foreseeable. D is liable for all of P's damages.

Defenses to defamation (truth)

In cases of purely private concern where p is not required to prove falsity, d may establish the truth of the statement as a complete defense.

Defenses to defamation (qualified privilege)

In certain situations, a speaker may say something defamatory without being liable because of the existence of a qualified privilege. reports of public proceedings - there is a qualified privilege for reports of public hearings or meetings. the privilege excuses accurate reports of statements that were false when made, but it does not excuse inaccuracies in the reporting of statements. public interest - a) publication to one acting in public interest - statements made to those who are to take official action of some kind are qualifiedly privileged. b) fair comment and criticism - one is permitted to make remarks that disparage another's acts in the course of a critique of public interest, e.g.., book reviews, articles on general public institutions, etc. The matter commented upon must be of general public interest. Interest of publisher - where d's statement is made to defend her own actions, property, or reputation, it may be privileged. example: a statement by a debtor explaining to a collection agency her reason for not paying a bill is qualifiedly privileged even if defamatory statements are contained therein. Interest of recipient - a qualified privilege is recognized when the recipient has an interest in the information it is reasonable for the defendant to make the publication, i.e., when she is not a mere intermeddler. example - a statement by a credit bureau to a customer is qualifiedly privileged. common interest of publisher and recipient - where there is a common interest between the publisher and the recipient, there is a qualified privilege. example - a statement by one board member of a charitable foundation, relating to the foundation's business, to another board member is qualifiedly privileged. Loss of qualified privilege through abuse - a qualified privilege exists only if exercised in a reasonable manner and for a proper purpose.

Actual cause

In order to be liable the breach must be the cause of the harm. In order for proximate cause to exist factual cause (actual cause) must first exist. Actual cause is said to exist when but for the act the injury would not have occurred. "but for" test example: Failure to provide a fire escape is a cause of death of one who is thereby unable to flee a fire, but it is not a cause of death of one who suffocated in bed.

Defamation (damage to P's reputation)

It may be necessary to distinguish between libel and slander. The burden of proof as to damages (to p's reputation) may depend on this distinction. General damages are presumed by law and need not be proved by the P. they are intended to compensate the p for the general injury to her reputation caused by the defamation. Special damages in a defamation law context means that p must specifically prove that she suffered pecuniary loss as a result of the defamatory statement's effect on her reputation, and are not proved merely by evidence of actual injury--such as the loss of friends, humiliation, or wounded feelings. The loss of a job, a prospective gift or inheritance, an advantageous business relationship, or customers are pecuniary losses such as those contemplated by the special damages requirement.

Defamation (defamatory language)

Language that tends to adversely affect one's reputation. Not all defamation consists of direct remarks. Pictures, satire, drama, etc., may convey an actionable defamatory meaning. While a statement of fact may always be defamatory, a statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory.

Libel

Libel is a defamatory statement recorded in writing or some other permanent form. A libel may also be recorded by radio or television in some circumstances. In most jurisdictions, general damages are presumed by law for all libels Libel Distinction -- Minority position - Libel per se v. Libel per Quod Libel Per Se - Presumed damages. These courts take the position that injury to the reputation of the p is presumed by law only if the statement is libelous and defamatory on its face (libel per se). thus, such libels are actionable without pleading or proving special damages. Libel per quod--special damages usually required. The libelous statement that is not defamatory on its face, but that requires reference to extrinsic facts to establish its defamatory content, is characterized as libel per quod by these courts. These courts generally require special damages to be pleaded and proved for such libels.

Mistake and importance of intentional torts

Mistake does not negate intent

Subterranean trespass

Most courts hold that an owner's right to exclusive possession extends both above and below the surface of the property.

Items that are nonrecoverable

Nonrecoverable Items Certain items are not recoverable as damages in negligence actions. These include: 1) Interest from date of damage in personal injury action; and 2) Attorneys' fees.

Attractive nuisance doctrine

Most courts impose upon a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on his property. under the general rule, to assess this special duty upon the owner or occupier of land with regard to children on his property, the p must show the following: 1)there is a dangerous condition present on the land of which the owner is or should be aware; 2)the owner knows or should know that young persons frequent the vicinity of this dangerous condition; 3)the condition is likely to cause injury, i.e., is dangerous, because of the child's inability to appreciate the risk; and 4)the expense of remedying the situation is slight compared with the magnitude of the risk. a)what is a dangerous condition - as noted above, a dangerous condition exists where something on the land is likely to cause injury to children because of their inability to appreciate the risk. this usually is an artificial condition, but in some circumstances a natural condition might suffice. --where applied - the attractive nuisance doctrine has been applied to abandoned automobiles, lumber piles, sand bins, and elevators. bodies of water are generally not dangerous conditions because the dangers are viewed as obvious and well-known. if, however, a body of water contains elements of unusual danger to children, it may be characterized as a dangerous condition, e.g., logs or plants floating in the water, or a thick scum that appears to be a path on the water. b)foreseeability of harm is true basis of liability - Under the traditional "attractive nuisance" doctrine, it was necessary for the child/plaintiff to establish that she was lured onto the property by the attractive nuisance/dangerous condition. This no longer is the case. Most jurisdictions have substantially revised their attractive nuisance doctrines to bring them within general negligence concepts. Foreseeability of harm to a child is the true basis of liability and the element of attraction is important only insofar as it indicates that the presence of children should have been anticipated by the landowner.

Unforeseeable Results Caused by Foreseeable Intervening Forces—Defendant Not Liable

Most intervening forces that produce unforeseeable results are considered to be unforeseeable intervening forces (see below). Similarly, most results caused by foreseeable intervening forces are treated as foreseeable results. In the rare case where a foreseeable intervening force causes a totally unforeseeable result, most courts would not hold the defendant liable. Example: D, a cabdriver, was driving recklessly during a violent windstorm that was blowing large branches and other debris onto the road, creating a risk to P, his passenger, that D would not be able to stop the cab in time to avoid an accident. D slammed on his brakes to avoid a large branch in the road, causing his cab to swerve sideways onto the shoulder of the road. Before he could proceed, another branch crashed onto the roof of the cab, breaking a window and causing P to be cut by flying glass. D is not liable to P even though his negligent driving was the actual (but for) cause of P's injury and the wind that was blowing the branches down was a foreseeable intervening force.

Negligence

Negligence is the failure to conform one's conduct as a reasonable person would under the same or similar circumstances. The prima facie elements of negligence are Duty; Breach; Causation and Damages.

Intentional tort defenses - Privilege of arrest

One may have a privilege to make an arrest of a third person to prevent the commission of a tort or to hold the person who has committed a tort.

Intentional tort defenses - Recapture of chattels

One may recapture his chattel when possession began lawfully, one may use only peaceful means to recover the chattel. force may be used to recapture a chattel only when in "hot pursuit" of one who has obtained possession wrongfully, e.g., by theft.

Intentional tort defenses - Defense of property

One may use reasonable force to prevent the commission of a tort against her property. Defense of property is limited to preventing the commission of a tort against the d's property. thus, once the d has been permanently dispossessed of the property and the commission of the tort is complete, she may not use force to recapture it.

Damages Recoverable in the Action (Punitive damages)

Punitive damages generally are not available in negligence cases. However, if the defendant's conduct was "wanton and willful," reckless, or malicious, most jurisdictions permit recovery of punitive damages.

Negligence (Duty of care) [Particular standards of conduct - professionals]

Some persons are held to a standard of conduct different from that of the ordinary person. Professionals - a person who is a professional or has special skills (doctor, lawyer, airplane mechanic) is required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing in similar communities. Specialist might be held liable where a general practitioner would not, a "national" standard of care applies. Duty to disclose risks of treatment - doctor proposing a course of treatment or a surgical procedure has a duty to provide the patient with enough information about its risks to enable the patient to make an informed consent to the treatment. if an undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld consent to the treatment, the doctor has breached this duty.

Negligence (breach of duty) Res Ipsa Loquitur

Res Ipsa Loquitur The circumstantial evidence doctrine of res ipsa loquitur ("the thing speaks for itself") deals with those situations where the fact that a particular injury occurred may itself establish or tend to establish a breach of duty owed. Where the facts are such as to strongly indicate that plaintiff's injuries resulted from defendant's negligence, the trier of fact may be permitted to infer defendant's liability. Res ipsa loquitur requires the plaintiff to show the following: a. Inference of Negligence Plaintiff must establish that the accident causing his injury is the type that would not normally occur unless someone was negligent. Example: A windowpane fell from a second story window in Defendant's building, landing on Plaintiff. Res ipsa loquitur may apply. b. Negligence Attributable to Defendant Plaintiff must establish evidence connecting defendant with the negligence in order to support a finding of liability, i.e., evidence that this type of accident ordinarily happens because of the negligence of someone in defendant's position. This requirement often can be satisfied by showing that the instrumentality that caused the injury was in the exclusive control of defendant, although actual possession of the instrumentality is not necessary. 1) Multiple Defendants Problem Where more than one person may have been in control of the instrumentality, res ipsa loquitur generally may not be used to establish a prima facie case of negligence against any individual party. Example: Plaintiff left the operating room with an injury to part of her body that was healthy prior to entering the operating room. The injury was not in the zone of the original operation. Res ipsa loquitur may not be available to establish that any individual in that room was negligent. This is so despite the fact that, clearly, someone was negligent. (A substantial minority of courts in such cases where defendants have control of the evidence require each defendant to establish that his negligence did not cause the injury. [See, e.g., Yarra v. Spangard, 25 Cal. 2d 486 (1944)]) Compare: The doctrine would be available where a particular defendant had the power of control over the site of the injury. For example, Plaintiff sues Surgeon after a sponge was left in his body at the site of the surgery. Even though Surgeon left it to her assistants to remove the sponges and close up the wound, her responsibility and power of control over the surgery itself allows Plaintiff to use res ipsa loquitur against her. c. Plaintiff's Freedom from Negligence Plaintiff must also establish that the injury was not attributable to him, but may do so by his own testimony. d. Effect of Res Ipsa Loquitur 1) No Directed Verdict for Defendant The doctrine, where applicable, does not change the burden of proof, nor does it create a presumption of negligence. Where the res ipsa element has been proved, the plaintiff has made a prima facie case and no directed verdict may be given for the defendant. 2) Effect of Defendant's Evidence of Due Care However, the effect of defendant's evidence that due care was exercised has the same effect in a res ipsa case as in all other cases. If the jury rejects the defendant's evidence and draws the permissible inference of negligence, it will find for the plaintiff. If defendant's evidence overcomes the permissible inference that may be drawn from the res ipsa proof, the jury may find for the defendant. Such a finding for the defendant may result even where defendant rests without offering evidence on the issue if the jury elects not to infer negligence.

Matters considered by the trier of fact on the issue of damages (Defamation)

Several matters, while not defenses to an action, may be considered by the trier of fact on the issue of damages. No actual malice - malice may be inferred from some statements, but if the jury is shown that there was no actual malice, such evidence is admissible to mitigate damages. To this end, defendant may prove the source of her information and grounds for her belief. Retraction - unless made immediately after publication so as to negate the defamatory effect of a statement, retraction does not undo the wrong. but the court may consider it to show lack of actual malice in mitigation of damages. a failure to retract after a request to do so is often allowed as evidence to the opposite effect. Anger - anger of the speaker may be a mitigating circumstance if provoked by the plaintiff.

Slander

Slander is spoken defamation. It is to be distinguished from libel in that the defamation is in less permanent and less physical form. Special damages usually required - In slander, injury to reputation is not presumed. Thus, ordinary slander is not actionable in the absence of pleading and proof of special damages. Slander per se--injury presumed - if, however, the spoken defamation falls within one of four categories, characterized as slander per se, an injury to reputation is presumed without proof of special damages. These four categories are : business or profession, loathsome disease, crime involving moral turpitude (a defamatory statement that the p is of or was guilty of a crime involving moral turpitude is actionable without pleading or proof of special damages)., Unchastity of a woman (defamatory statement imputing unchaste behavior to a woman is actionable without pleading or proof of special damages.

Defamation ("of or concerning" the P)

The P must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff. All members of small Group (where defamatory language refers to all members of a small group, each member may establish that defamatory statement was made of and concerning him by alleging that he is a member of the group) All members of large group (if defamatory statement refers to all members of a large group, no member of that group may establish this element of the cause of action.) Some members of small group (where the defamatory language refers to some members of a small group, P can recover if a reasonable person would view the statement as referring to the P.)

Proximate cause (General rule of liability)

The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. In other words, if one of the reasons that make defendant's act negligent is a greater risk of a particular harmful result occurring, and that harmful result does occur, defendant generally is liable. This test is based on foreseeability

Conversion

The defendant intentionally exercises dominion and control over plaintiffs chattel or personal property constituting a serious or substantial interference. The elements of conversion are (1) intent (2) dominion and control (3) substantial interference

Products liability

The liability of a supplier of a product to one injured by the product. P

Strict liability - EXTENT OF LIABILITY (proximate cause)

The majority view is that the same rules of direct and indirect causation govern in strict liability as they do in negligence—defendant's liability can be cut off by unforeseeable intervening forces. In fact, the courts tend to hold more intervening forces "unforeseeable."

Damages Recoverable in the Action (Property Damage)

The measure of damages for property damage is the reasonable cost of repair, or, if the property has been almost or completely destroyed, its fair market value at the time of the accident.

Liability without fault (Strict Liability)

The nature of the defendant's activity imposes an absolute duty to make safe, the dangerous aspect of the activity is the actual and proximate cause of the plaintiff's injury, and the plaintiff suffered damage to person or property. elements of strict liability are 1)absolute duty to make safe 2) actual and proximate cause 3) damage

Defenses to negligence [Assumption of risk]

The plaintiff may be denied recovery if he assumed the risk of any damage caused by the defendant's acts. This assumption may be expressed or implied. To have assumed risk, either expressly or impliedly, the plaintiff must have known of the risk and voluntarily assumed it. It is irrelevant that plaintiff's choice is unreasonable.

Statutory Standards of Care [Violation of a Civil Remedy Statute]

Where the statute in question provides for a civil remedy, plaintiff will sue directly under the statute; i.e., it is not a common law negligence case.

Foreseeable Results Caused by Unforeseeable Intervening Forces—Defendant Usually Liable

The problem: Defendant is negligent because his conduct threatens a result of a particular kind that will injure plaintiff. This result is ultimately produced by an unforeseeable intervening force. Most courts would generally find liability here because they give greater weight to foreseeability of result than to foreseeability of the intervening force. An exception exists, however, where the intervening force is an unforeseeable crime or intentional tort of a third party; it will be deemed a "superseding force" that cuts off defendant's liability (see discussion below). Examples: 1) Defendant failed to clean residue out of an oil barge, leaving it full of explosive gas. Negligence, of course, exists since an explosion resulting in harm to any person in the vicinity was foreseeable from any one of several possible sources. An unforeseeable bolt of lightning struck the barge, exploding the gas and injuring workers on the premises. Defendant is liable. 2) Same facts as above example, except that an arsonist caused the explosion. Most courts would not hold Defendant liable here. They think it unfair to make him responsible for such malevolent conduct. The important point here is that an unforeseeable intervening force may still relieve the defendant of liability if it is an unforeseeable crime or intentional tort of a third party.

Defenses to negligence [Assumption of risk] Express Assumption of Risk

The risk may be assumed by express agreement. Such exculpatory clauses in a contract, intended to insulate one of the parties from liability resulting from his own negligence, are closely scrutinized but are generally enforceable. (Note that it is more difficult to uphold such an exculpatory clause in an adhesion contract.)

Characterization of Privileged Entrants

There may be a problem of characterization regarding persons entering the premises in exercise of a privilege, e.g., police, firefighters, census takers, etc. In some situations, they are characterized as licensees, in others as invitees. The following rules should be noted: (a) An entrant serving some purpose of the possessor generally is treated as an invitee, e.g., garbage collectors, mail carriers, etc. (b) One who comes under normal circumstances during working hours generally is treated as an invitee, e.g., census takers, health inspectors, etc. (c) Under the "firefighter's rule," police officers and firefighters are generally treated like licensees rather than invitees, based on public policy or assumption of risk grounds. They cannot recover for a landowner's failure to inspect or repair dangerous conditions that are an inherent risk of their law enforcement or firefighting activity.

Trespass to land

Trespass to land is to intentionally enter or cause something to enter the land of the plaintiff that interferes with the possessory interests of the plaintiff. The elements of trespass to land are (1) intent (2) land of plaintiff (3) interference.

Proximate cause

Under all the circumstances to an objectively reasonable person in the defendant's position was the type of harm that occurred reasonably foreseeable. example: suppose that bruno negligently causes jack to trip and fall. unbeknownst to bruno, jack has a hand grenade in his pocket. the impact from jack's fall causes the grenade to explode, which destroys the entire building. was bruno's negligence the proximate cause of the destruction of the building? -answer: No. The destruction of an entire building is not what we expect to happen when causing someone to trip. Recall that proximate cause asks: Is this the type of injury that we are trying to guard against?

Statutory Standards of Care [When Statutory Standard Applicable]

When Statutory Standard Applicable The precise standard of care in a common law negligence case may be established by proving the applicability to that case of a statute providing for criminal penalties (including fines). If this is done, a clearly stated specific duty imposed by the statute will replace the more general common law duty of due care. In proving the availability of the statutory standard, plaintiff must show the following: a) Plaintiff Within Protected Class The plaintiff must show that she is in the class intended to be protected by the statute. Example: A statute requiring a landowner to keep a building in safe condition is meant to protect only those rightfully on the premises and not trespassers. b)Particular Harm to Be Avoided The plaintiff must show that the statute was designed to prevent the type of harm that the plaintiff suffered. Example: Violation of a Sunday closing law is not evidence of negligence in the case of an accident in a store on Sunday.

Negligence (breach of duty) Violation of Statue

Violation of Statute As we have seen above, the existence of a duty owed to plaintiff and breach thereof may be established by proof that defendant violated an applicable statute.

Duty of Easement and License Holders to Trespassers

While employees and independent contractors acting on behalf of the landowner have the status of the landowner, persons with an easement or license to use the land do not; they must exercise reasonable care to protect the trespasser. Example: Power Company obtains an easement from Leonard to run high-tension wires across Leonard's land. Because of Power Company's negligent failure to maintain the wires, one of them falls and injures Plaintiff, an undiscovered trespasser on Leonard's land. Power Company is liable to Plaintiff.

Duties of Possessor to Those on the Premises (trespasser)

a)duty owed to a trespasser 1)a trespasser is one who comes onto the land without permission or privilege 2)duty owed undiscovered trespassers - a landowner owes no duty to an undiscovered trespasser. he has no duty to inspect in order to ascertain whether persons are coming onto his property. 3)duty owed discovered trespassers - once a landowner discovers the presence of a trespasser, he is under a duty to exercise ordinary care to warn the trespasser of, or to make safe, artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover. there is no duty owed for natural conditions and less dangerous artificial conditions. a)when is a trespasser "discovered" - a trespasser is discovered, of course, when she is actually noticed on the property by the owner or occupier. but in addition, a trespasser is viewed as discovered if the owner or occupier is notified by information sufficient for a reasonable person to conclude that someone is on the property. 4)duty owed anticipated trespassers - the majority of states now treat trespassers on generally the same basis as discovered trespassers in terms of the duty owed them by the landowner. a)when is a trespasser "anticipated"? - an "anticipated trespasser" situation arises where the landowner knows or should reasonably know of the presence of trespassers who constantly cross over a section of his land. (Although note that if the owner has posted "no trespassing" signs, this might serve to convert these "anticipated" trespassers into "undiscovered" trespassers.)

Strict liability - EXTENT OF LIABILITY (defenses)

a. Contributory Negligence States In contributory negligence states, plaintiff's contributory negligence is no defense if the plaintiff simply failed to realize the danger or guard against its existence (unknowing contributory negligence). It is a defense, however, if plaintiff knew of the danger and his unreasonable conduct was the very cause of the harm from the wild animal or abnormally dangerous activity. Courts call this conduct "knowing" contributory negligence or a type of assumption of risk. Furthermore, assumption of risk of any type is a good defense to strict liability in contributory negligence states. Example: P knowingly and unreasonably tries to pass D's dynamite truck on a sharp curve, causing it to turn over and explode. Regardless of whether P's conduct is called contributory negligence or assumption of risk, P cannot recover. b. Comparative Negligence States Most comparative negligence states will now simply apply the same comparative negligence rules that they apply to negligence cases.

Defenses to negligence [Assumption of risk] Implied Assumption of Risk

a. Implied Assumption of Risk Implied assumption of risk situations are harder to resolve as, of course, the fact issues are difficult to prove. 1) Knowledge of Risk Plaintiff must have known of the risk. Knowledge may be implied where the risk is one that the average person would clearly appreciate, e.g., risk of being hit by a foul ball in a baseball game. 2) Voluntary Assumption The plaintiff must voluntarily go ahead in the face of the risk. However, plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk, e.g., the only exit from a building is unsafe. 3) Certain Risks May Not Be Assumed Because of public policy considerations, the courts uniformly hold that some risks may not be assumed. These include: a) Common carriers and public utilities are not permitted to limit their liability for personal injury by a disclaimer on, e.g., a ticket, a posted sign, etc. b) When a statute is enacted to protect a class, members of that class will not be deemed to have assumed any risk. Example: When a statute imposes safety regulations on an employer, the employee is held not to have assumed the risk where the statute is violated. c) Risks will not be assumed in situations involving fraud, force, or an emergency. Thus, for example, one could take action to save his person or property without assuming a risk unless his actions involve an unreasonable risk out of proportion to the value of those rights.

Damages Recoverable in the Action (personal injury)

a. Personal Injury Plaintiff is to be compensated for all his damages (past, present, and prospective), both special and general. This includes fair and adequate compensation for economic damages, such as medical expenses and lost earnings, and noneconomic damages, such as pain and suffering. Plaintiff is also entitled to compensation for impaired future earning capacity, discounted to present value so as to avoid an excess award; i.e., plaintiff receives an amount that, if securely invested, would produce the income that the jury wishes him to have. 1) Foreseeability Irrelevant As noted above in the proximate cause section, it is generally not necessary to foresee the extent of the harm. In other words, a tortfeasor takes the victim as he finds him. 2) Emotional Distress Damages Plaintiff's noneconomic damages include damages for any emotional distress suffered as a result of the physical injury. Example: Plaintiff was struck by a piece of metal when the engine blew on a defectively manufactured lawnmower. The piece of metal lodged in his spine at an inoperable location, significantly increasing his risk of future paralysis. In plaintiff's products liability action against the manufacturer of the lawnmower, plaintiff can recover damages not only for his physical injury but also for the emotional distress he suffers from his knowledge of the risk of paralysis, because it arises out of the physical injury caused by the defective product.

Defenses to negligence [Contributory Negligence (not used anymore)]

a. Standard of Care for Contributory Negligence 1) General Rule The standard of care required is the same as that for ordinary negligence. 2) Rescuers A plaintiff may take extraordinary risks when attempting a rescue without being considered contributorily negligent. The emergency situation is one of the factors taken into account when evaluating the plaintiff's conduct. 3) Remaining in Danger It may be contributorily negligent to fail to remove oneself from danger, e.g., remaining in a car with a drunk driver. 4) Violation of Statute by Plaintiff Plaintiff's contributory negligence may be established by his violation of a statute under the same rules that govern whether a statute can establish defendant's negligence (see B.3.e., supra). 5) As Defense to Violation of Statute by Defendant Contributory negligence is ordinarily a defense to negligence proved by defendant's violation of an applicable statute. But where the defendant's negligence arose from violation of a statute designed to protect this particular class of plaintiffs from their own incapacity and lack of judgment, then plaintiff's contributory negligence is not a defense. Example: D is exceeding the speed limit in a school zone when a child on his way to school darts into the street without looking. Because of her speed, D is unable to stop and hits the child. Any contributory negligence on the child's part is not a defense to D's violation of the statute, because the statute was designed to protect children on their way to school. b. Avoidable Consequences Distinguished As we have seen, plaintiff owes a duty to mitigate damages to person or property after the damage is inflicted. If he does not properly do this, then damages will be reduced. Failure to do this, however, is an avoidable consequence, not contributory negligence. c. No Defense to Intentional Torts Contributory negligence is never a defense to an action for an intentional tort or for willful or wanton misconduct. d. Effect of Contributory Negligence At common law, plaintiff's contributory negligence completely barred his right to recover. This was so even though the degree of defendant's negligence was much greater than that of plaintiff. The severe consequences of strict application of contributory negligence rules initially caused courts to develop "escape" doctrines, such as last clear chance (below). More recently, however, most jurisdictions have rejected entirely the "all or nothing" approach of contributory negligence in favor of a comparative negligence system (discussed infra). e. Last Clear Chance The doctrine of last clear chance, sometimes called "the humanitarian doctrine," permits the plaintiff to recover despite his own contributory negligence. Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. (In effect, last clear chance is plaintiff's rebuttal against the defense of contributory negligence.) Example: Bowater negligently parked his car on the railroad tracks. The train engineer saw him in time to stop but failed to do so. The engineer had the last clear chance, and thus the railroad will be liable for the accident. 1) "Helpless" vs. "Inattentive" Peril Many cases distinguish between "helpless" and "inattentive" peril situations in applying last clear chance rules. a) Helpless Peril Helpless peril exists where plaintiff, through his contributory negligence, puts himself in a position of actual peril from which he cannot extricate himself. In many states, defendant is liable under these circumstances if she had either actual knowledge of plaintiff's predicament or if she should have known of plaintiff's predicament. Other states require actual knowledge. b) Inattentive Peril Inattentive peril exists where plaintiff, through his own negligence, is in a position of actual peril from which he could extricate himself if he were attentive. Almost all courts require actual knowledge of plaintiff's predicament on defendant's part. 2) Prior Negligence Cases For last clear chance to operate, defendant must have been able to avoid harming plaintiff at the time of the accident. In short, defendant must have had the "last clear chance" to avoid the accident. Hence, if defendant's only negligence had occurred earlier, e.g., she negligently failed to have the steering wheel fixed, the courts will not apply last clear chance. f. Imputed Contributory Negligence Driver and Passenger are involved in an automobile accident with Cyclist. Driver is negligent; Cyclist is also negligent. Passenger, who is injured, brings an action against Cyclist. Cyclist argues that liability should be denied because of Driver's negligence to the same extent as if Passenger had been negligent himself. This is the concept of "imputed contributory negligence." 1) General Rule—Plaintiff May Proceed Against Both Negligent Parties As a general rule, a plaintiff's action for his damages is not barred by imputed contributory negligence. He may proceed against both negligent parties as joint tortfeasors to the extent that each is a legal cause of the harm. 2) When Contributory Negligence Is Imputed Contributory negligence will be imputed only where the plaintiff and the negligent person stand in such a relationship to each other that the courts find it proper to charge plaintiff with that person's negligence, i.e., where plaintiff would be found vicariously liable for the negligent person's conduct if a third party had brought the action. (See also Vicarious Liability, VII.A., infra.). 3) Common Fact Situations The following situations should be noted for bar examination purposes: a) Employer and Employee The contributory negligence of the employee or agent acting within the scope of employment will be imputed to the employer or principal when the latter is a plaintiff suing a third person. b) Partners and Joint Venturers The contributory negligence of one partner or joint venturer will be imputed to the other when the other is a plaintiff suing a third person. c) Husband and Wife The contributory negligence of one spouse will not be imputed to the other when the other is a plaintiff suing a third person. d) Parent and Child The contributory negligence of the parent or guardian is not imputed to the child, nor is the contributory negligence of the child imputed to the parent in actions against a third party. Note: As to sections c) and d) above, note that in a spouse's action for loss of the other spouse's services, or a parent's action for loss of a child's services or recovery of his medical expenses, the contributory negligence of the injured spouse or child will bar recovery by the other spouse or by the parent. This is not because negligence is imputed, but because the loss of services action is derivative and cannot succeed unless the main action succeeds (see VII.D.3., infra). This result would also be obtained in a wrongful death action. e) Automobile Owner and Driver Unless the automobile owner would be vicariously liable for the driver's negligence (because, e.g., the driver was an employee within the scope of employment), the contributory negligence of the driver will not be imputed to her. (Remember, in situations where the owner is a passenger, she may be liable for her own negligence in not preventing the accident.)

Concurrent causes

arises when multiple acts or forces combine to cause an injury when neither alone would be sufficient. example: bruno is driving negligently, causing jack to swerve his car to avoid hitting bruno. jack then drives his own car negligently and causes a crash with jill, a pedestrian. jill sues both jack and bruno -neither bruno's nor jack's negligence was sufficient to cause jill's injury. -both acts together constitute the direct antecedent but for which jill's injury would not have occurred. -the confluence of both negligent acts is what caused the injury. -jill is able to sue them both "but for" younger brother.

Negligence (Duty of care) [Particular standards of conduct - common carriers and innkeepers]

common carriers and innkeepers are required to exercise a very high degree of care toward their passengers and guests; i.e., they are liable for slight negligence.

Duties of Possessor to Those on the Premises (licensee)

licensee is one who enters on the land with the landowner's permission, express or implied, for her own purpose or business rather than for the landowner's benefit. duty owed - The owner or occupier owes a licensee a duty to warn of or make safe a dangerous condition known to the owner or occupier that creates an unreasonable risk of harm to the licensee and that the licensee is unlikely to discover. a)no duty to inspect - the owner or occupier has no duty to a licensee to inspect for defects nor to repair known defects. b)duty of care for active operations - the owner or occupier also has a duty to exercise reasonable care in the conduct of "active operations" for the protection of the licensee whom he knows to be on the property. social guests are licensees. performance of minor services for the host does not make the guest an invitee

Negligence (Duty of care) [Particular standards of conduct - automobile driver to guest]

in most jurisdictions today, the duty owed by the driver of an automobile to a rider is one of ordinary care. guest statutes - a few states have guest statutes. under these statutes, the driver's only duty to a nonpaying rider is to refrain from gross or wanton and willful misconduct. note that guest statutes do not apply to "passengers," i.e., riders who contribute toward the expense of the ride; they are owed a duty of ordinary care.

Negligence (Duty of care) [Particular standards of conduct - standard of care owed by owners and/or occupiers of land]

in this section, duty problems are resolved by application of special rules that have been developed imposing duties on individuals because of their relationship to property. in some cases, the duty of the owner or occupier depends on whether the injury occurred on or off his premises; in others it depends on the legal status of the plaintiff with retard to the property, i.e., trespasser, licensee, or invitee. duty of possessor to those off the premises a)natural conditions - the general rule is that a landowner owes no duty to protect one outside the premises from natural conditions on the land. example - one is not liable for bugs that live in trees on one's land but that "visit" the neighbors from time to time. b)artificial conditions - as a general rule, there is also no duty owing for artificial conditions. two major exceptions exist, however. 1)unreasonably dangerous conditions - a landowner is liable for damage caused by unreasonably dangerous artificial conditions or structures abutting adjacent land. example - while one would not be liable for natural collections of ice on the sidewalk, he might be liable for negligently permitting water to drain off his roof and form ice on the sidewalk. 2)duty to protect passersby - a landowner also has a duty to take due precautions to protect persons passing by from dangerous conditions, e.g., by erecting a barricade to keep people from falling into an excavation at the edge of the property c)conduct of persons on property - an owner of land has a duty to exercise reasonable care with respect to his own activities on the land and to control the conduct of others on his property so as to avoid unreasonable risk of harm to other outside the property. duties of possessor to those on the premises - in most jurisdictions, the nature of a duty owed by an owner or occupier of land to those on the premises for dangerous conditions on the land depends on the legal status of the plaintiff with regard to the property, i.e., trespasser, licensee, or invitee.

Negligence (Duty of care) [Particular standards of conduct - standard of care in emergency situations]

the existence of an emergency, presenting little time for reflection, may be considered as among the circumstances under which the defendant acted; i.e., he must act as the reasonable person would under the same emergency. the emergency may not be considered, however, if it is of the defendant's own making.

Negligence (Causation)

the plaintiff must prove, not only that she suffered legally recognized harm, but that the harm was in the fact caused by the defendant. Causation exists in two forms, actual and proximate

Defenses to defamation (absolute privilege)

under certain circumstances, the speaker is not liable for defamatory statements because he enjoys an absolute privilege. such absolute privileges are not affected by a showing of malice, abuse, or excessive provocation, as in the case of qualified privileges. absolute privilege exists in the following cases: Judicial proceedings (all statements made by the judge, jurors, counsel, witnesses, or parties in judicial proceedings are absolutely privileged) Legislative proceedings Executive proceedings "Compelled" broadcast or publication - a radio or tv station compelled to allow a speaker the use of the air, a newspaper compelled to print public notices, etc., is absolutely privileged in an action based on the content of the compelled publication. Communications between spouses