Torts

Intentional infliction of emotional distress

(1) D must engage in outrageous conduct (intend or be substantially certain that harm will result,) (2) P must then suffer severe distress. (Note: For this tort, D need not act intentionally -- reckless conduct will trigger liability. IIED is the only intentional tort that requires damages.)

Assault

(1) D places P in reasonable apprehension. (2) The apprehension is of an immediate battery.

Acts of physical invasion

(1) Entering P's property, on foot or in a vehicle, but D does not have to know that he has crossed a boundary line - inadvertent trespass counts. Example: No signs that D has left a park into a private property, he is still liable for trespass. The intent is to intend to be in that location. Intent would only be missing if you wind up in a location without against your desire. i.e. sleepwalking, lost control of a horse, falling onto someone's land by accident. (2) Throwing something physical, tangible onto P's land. Example: Deliberately throwing a rock through the neighbor's window. Lights, noise, odors don't count as trespass.

Causation

(1) Factual causation: P must establish a connection between the breach and injury. ("A factual cause," not THE factual cause.) (2) Proximate cause: Foreseeability and fairness of holding D liable for the harm

Strict liability causes of action

(1) Injuries caused by animals (2) Abnormally dangerous activities (3) Strict liability for products

Defamation claims

(1) Libel (2) Slander (3) Slander per se

Six special standards of care

(1) Negligence claims against kids. (2) Negligence against professionals (malpractice actions) (3) Premises liability - Trespassers, Licensees, Invitees (4) Statutory Standard of Care (5) Duties to Act Affirmatively (6) Negligent Infliction of Emotional Distress

Exceptions to the no affirmative duties rule

(1) Pre-existing relationship: If D has a pre-existing (formal legal) relationship with P, then D has a duty of care. (Examples: Common carrier-passenger; Hotel-guest) (2) If D puts P in (any) peril, the D owes a duty a care. Duty of care, NOT duty to rescue. No one has to risk their life. (i.e. Call the fire department)

Privacy actions special issues

(1) Special (pecuniary) damages are not required. (2) Truth is no defense. (3) Privacy actions do no survive death

Defamation - Absolute privileges defense

(1) Spousal: D can share a defamatory statement with his spouse, which can be spoken, emailed, etc. (2) Governmental / Court: Officers of the government (executive, judicial, legislative), acting in their capacity as government officials, and all parties in judicial proceedings, including witnesses.

Exceptions to the statutory standard of care

(1) Statutory compliance would be more dangerous than a statutory violation. (Example: Swerving to avoid hitting a girl, but D crosses a double yellow line, so the statutory violation would not be the standard. The P must use the RPP standard.) (2) Statutory compliance is impossible. (Example: D has a heart attack, so doesn't stop at a red light. After proving that compliance was impossible, discuss RPP. i.e. if he had a history of heart attacks and forewarning; or if he didn't take his heart medicine)

Plus factors of outrageous conduct

(1) The bad behavior is repeated or continuous over time. (2) D is a common carrier or an innkeeper. (i.e. Amtrak, Airline, Marriot, B&B) (3) P belongs to a fragile class of persons - i.e. children, elderly people, pregnant women. (4) D has prior knowledge of P's emotional sensitivity and exploits it.

Protective privilege requirements

(1) Timing issue: The threat must be in progress or imminent when D acts. D must be acting in the heat of the moment - D must not act too soon. No preemption. D cannot put P in the face if P threatens to hit D tomorrow. - D must not act too late. No revenge, no retaliation. D can't wait until the confrontation is over (P walks away) to attack P. (2) D must have a reasonable belief that the threat is genuine. D's reasonable mistake about the threat will not destroy the defense. (Example: D commits a battery by taking someone else's bag at baggage claim by accident. P sues. D's defense is protection of property. P argues that it wasn't D's bag. D can argue that it was a reasonable mistake.)

Miscellaneous topics

(1) Vicarious liability (2) Co-defendant liability

Acts of restraint

A TOP: Awareness, Threats Omission, Physical (1) Awareness: The act only counts if P is aware of it or harmed by it, but there is no duration requirement. (2) Threats: Threats are sufficient, provided that the threat would operate on the mind of an ordinary person. (Example: "If you walk out, I'll kill you or your child.") (3) Omission: An omission can be a restraint, so long as there is a pre-existing duty. (Example: The cabin crew on a plane leaves a disabled passenger on the plane.) (4) Physical: The act of restraint can be physical, but it doesn't have to be.

Conversion - Bailee Standard of Care

A bailee is liable to the owner for conversion if the bailee uses the chattel in such a manner as to constitute a material breach of the bailment agreement. (e.g. A friend let's a friend borrow her car while he gets his fixed, but that person loans the car to a third party, who takes it on a 900-mile road trip. The friend is a bailee, and he breached the bailee agreement, which will make him liable for the full market value of the car.)

Time delay

A battery does not have to happen instantaneously. Example: Poisoning someone's lunch.

Intentional misrepresentation -- Fraud, Deceit

A cause of action for fraud that is framed as a tort but relies on contract obligations will be analyzed under the ''gist of the action doctrine" to determine whether the cause of action lies in tort or contract. Where fraud claims are intertwined with breach of contract claims and the duties allegedly breached are created and grounded in the contract itself the gist of the action is breach of contract. Thus, claims of fraud in the performance of a contract are generally barred under the gist of the action doctrine.

Attractive nuisance

A dangerous place, condition, or object that is particularly attractive to children. A child trespasser who is injured by a dangerous artificial condition need not have been attracted onto the property by the condition.

Express consent

A declaration granting someone permission to behave in a certain way. (Example: "Hi, come on in.") Exception: A consent given as a result of fraud or duress negates consent. (Example: D pretends to be your doctor and performs a physical exam. P's consent is negated and can be sued for battery.)

Sudden incapacity or medical emergency

A defendant's sudden incapacity that negates negligence on his part (e.g., an unforeseeable seizure while driving) must be pleaded and proven as an affirmative defense.

Res ipsa loquitur

A doctrine that is used by P's who cannot figure out what D did wrong because there is an information vacuum. Procedural effect: Enough to avoid a directed verdict for D. Jury must find that: (1) The accident that occurred is NORMALLY associated with negligence. P argues the probabilities; appeal to common sense. (2) The accident would normally be due to accidents in someone in D's position. P must have evidence that D had exclusive control over the object. (Note: Usually not applicable in multiple defendant cases, except for where there's a surgical team.)

Duty of care to a viable fetus

A duty of care is owed to a viable fetus. In cases of failure to diagnose a congenital defect or properly perform a contraceptive procedure, the child may NOT recover for "wrongful life," but the parents may recover damages in a "wrongful birth" or "wrongful pregnancy" action for any additional medical expenses and for pain and suffering from labor; ordinary child-rearing expenses, however, cannot be recovered. (Not available in PA)

Firefighters and police officers

A firefighter and police officer can never recover for an injury that is an inherent risk of the job. Example: Firefighter cannot recover for a burn injury from responding to fire in P's house.

Gratuitous rescuers

A gratuitous rescuer who is careless will be liable for the harm they cause in rescuing or attempting to rescue.

Invitee

A guest who enter D's property for an economic purpose, or those who enter properties that are open to the public. Examples: Customer of a business; someone meeting a friend at the airport to pick them up; churchgoers, museum visitors, where no admissions fee is charged.

Duty of health care institutions

A health care institution such as a nursing home, may be directly liable for its own breach of duty to a plaintiff as well as vicariously liable for the acts of its employee. To establish direct corporate liability, the plaintiff must show that a resident-entity relationship existed so as to impose on the entity a duty of care to the resident (e.g., to maintain a safe facility, to hire or oversee competent staff, or to enforce appropriate rules for patient care).

Duty to prevent hard from third-persons

A mental health professional has a limited duty to warn one whom she knows to be in immediate danger of serious bodily injury from her patient's threatened violence. On the other hand, a medical doctor does not have a duty to warn someone of her patient's communicable disease, even when the doctor knows the person is in close contact with her patient. However, a doctor does have a duty to provide care to his patient that he should know is necessary for the protection of a third party.

Protection for existing agricultural operations

A nuisance action may not be brought against an agricultural operation (e.g., a hog farm) that has been lawfully operating for at least one year if the condition complained of is part of normal agricultural operations and has existed substantially unchanged for at least one year. If the facilities have been substantially expanded within the past year, the agricultural operation may still avoid liability by showing that a nutrient management plan was approved by the state prior to the expansion.

Truth a defense to interference with business relations

A party will not be liable for tortious interference with contractual relations for giving truthful information to another. (Example: An insurance company administrator was not liable for tortious interference with contractual relations for making a truthful disclosure to a client about the commission of the client's broker, even though the disclosure resulted in the client's termination of the contract with the broker.)

Scope of the invitation

A person may lose invitee status and become a trespasser by being on the premises at a time outside the scope of his invitation.

Scope of the invitation in premises liability

A person may lose invitee status and become a trespasser by being on the premises at a time outside the scope of his invitation.

Recovery for emotional distress in strict liability

A plaintiff can recover for emotional distress on a strict liability tort. Hence, a bystander plaintiff who witnesses the injury of a close relative can recover damages for emotional distress when the injured person's underlying cause of action is based on strict liability for defective products.

Duty of possessor of land to those off premises

A possessor of land is subject to liability for harm caused on adjacent property by the condition of a tree if the exercise of reasonable care would have disclosed the condition and the risk involved and the condition could have been made reasonably safe.

Duty of care owed to a known or anticipated trespasser

A possessor of real estate must only protect a known or anticipated trespasser, only from a known, yet concealed, manmade death traps on the land. Duty triggered by most egregious hazards. Four part test: (1) Only if the condition is artificial, constructed by human beings (does not include naturally icy conditions, tree branches (2) Hazard must be highly dangerous - capable of maiming or killing P (3) Danger must be concealed or hidden. Open and obvious conditions require no duties (4) D must have had prior knowledge of the hazard

Private nuisance - Definition

A private nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment of his property.

Negligence against professionals (malpractice actions)

A professional is obligated to exercise the skill and knowledge that is normally possessed by members of that profession, in good standing. Professionals are obligate of average members of their profession. Factually grounded standard. A professional should be "a conformist." He must follow the custom of the professional; custom is conclusive. National standard of care.

Vicarious liability in independent contractor situations

A property owner who engages an independent contractor is responsible for the acts or omissions of the independent contractor or its employees when the property owner retains control over the manner in which the work is done.

Malice requirement for defamation of a public figure

A public figure suing for damages in a defamation action must prove actual malice. Mere hostility or dislike for P does not constitute actual malice. To establish actual malice, P must show "that the utterance was false and that it was made with knowledge of its falsity or with reckless disregard for whether is was false or true."

Malice requirement for defamation of a public figure

A public figure suing for damages in a defamation action must prove actual malice. Mere hostility or dislike of the plaintiff does not constitute actual malice. To establish actual malice, a plaintiff must show "that the utterance was false and that it was made with knowledge of its falsity or with reckless disregard of whether it was false or true."

Qualified privileges defense - Recipient has an interest in the information

A qualified privilege is recognized when the recipient has an interest in the information and it is reasonable for D to make the publication of the statement. (i.e. Bank tells wife that account with her husband has been overdrawn on purchases to an escort service.)

"Retained control"

"Retained control" may be shown by contractual provisions giving the property owner control over the manner, method, and operative details of the work, or by showing that the property owner exerted actual control over the work. (Note: A property owner's imposition of safety rules at a worksite is not enough to show control over the work.)

Confinement in a bounded area

(1) A bounded area does not have to have fixed boundaries, or be specifically delineated. A wall or fence is not necessary. (Example: "Stay in this general area or I'll shoot you.") (2) An area is not bounded if there is a reasonable means of escape that P can reasonably discover. P is not locked in, if he can get out, but if the way out is dangerous, disgusting, humiliating, or hidden, then it's not a reasonable means of escape. (Example: D locks P in D's basement. P's only way out was through a rat-infested sewer pipe. Not a reasonable means of escape.) (DDHH - Dangerous, Disgusting, Humiliating, Hidden)

General propositions for intentional torts

(1) All plaintiffs are assumed to be normal for the purpose of each cause of action (hypersensitivity cannot be the basis of a claim) (2) There are no incapacity defenses to to intentional torts (kids, crazies, and drunks can get sued)

Implied consent

(1) Arising from custom or usage. Comes up when P goes to a place or engages in activity, where certain invasions are routine. Contextual. (Examples: Riding a train during rush hour on a work day; team sports, such as football or basketball, sitting in a barber's chair in a barber shop) (2) Based on D's reasonable interpretation of P's objective conduct and surrounding circumstances. (Body language consent, but not limited to body language) We're all entitled to read social cues and act on those cues, but we are constrained by reasonableness. Exception: A consent given as a result of fraud or duress negates consent.

Defenses to strict products liability claims

(1) Assumption of risk (can be a complete defense) (2) Product misuse (3) Adequate warnings (must look at the wording, placement, etc. of the warning. (Contributory negligence never a defense)

Three classic abnormally dangerous activities

(1) Blasting: The use of explosives (2) Handling of extraordinary hazardous or toxic materials (3) Handling of high doses of radiation or nuclear power

Defenses to privacy torts

(1) Consent (2) Absolute and qualified privileges - also count for false light and disclosure

Defenses to defamation

(1) Consent: Express or implied. Taylor Swift v. Kimye on "Famous" (2) Truth: D has a defense if the statement is true, but the burden falls on D. (3) Privileges: (i) Absolute; (ii) Qualified

Affirmative defenses to negligence

(1) Contributory negligence (2) Implied assumption of the risk (3) Comparative negligence

Elements for strict liability for products

(1) D must be a merchant (commercial supplier) (2) The product must have a defect (sold or produced) (3) The product has not been altered since leaving D's control (actual cause) (4) P must have been making a foreseeable use of the product at the time of the injury (proximate cause) (5) P suffered damage to person or property

Battery

(1) D must commit a harmful or offensive contact (objective test). (2) The contact must be with P's person.

Reasonable apprehension

Created by D's apparent ability. Example: It is reasonable for P to expect that D's gun is loaded.

Satisfying the duty owed to P's, other than trespassing children

D can: (1) Fix the hazardous condition, or (2) Give a warning (Example: "There is ice on the driveway." Look for warnings.)

Private necessity

D commits a property tort in an emergency to protect an interest of his own, or in the interest of one other person. Not an absolute defense. Harm to P must be reasonably necessary, but there will be no liability for the trespass itself. (1) D will be liable for compensatory damages for any harm to P's property. (2) D is immune from nominal or punitive damages. (3) So long as the emergency persists, P must tolerate D's presence on land. P cannot send D back into danger. D has a right of sanctuary.

Public necessity defense

D commits a property tort in an emergency to protect the community as a whole or a significant group of people. (Example: D breaks into a store to get a fire extinguisher (trespass and conversion) to put out a fire that's edging towards a gasoline refinery in order to save the community.) Policy justification: We don't want a hero to hesitate, so we grant him full immunity.

Negligent Infliction of Emotional Distress

D does not cause trauma to P's body. Two tier analysis: (1) Was D negligent? (2) If so, then P must prove: (i) PHYSICAL TRAUMA: D almost caused physical trauma to P, or (a) P was placed in the zone of danger. (b) As a result, P suffered physical manifestation. (ii) BYSTANDER: D causes harm to a person not involved in the lawsuit. P is a bystander. (a) P and injured party are close family members (b) P is a contemporaneous witness (iii) PRE-EXISTING BUSINESS RELATIONSHIP: P and D are in a pre-existing business relationship, where it is highly foreseeable that careless performance will cause emotional distress. (Examples: Medical laboratory-medical patient, i.e. Lab negligently gives P a false positive; Customer-funeral parlor, i.e. Funeral home cremates instead of buries relative or displays the wrong body. Nonexample: Drycleaner-customer)

Duty of care owed to an unknown trespasser

D has no duty of care. Unknown trespassers always lose.

Examples of private necessity

D is engaged in cross country hiking in rural Minnesota during February. A blizzard arises. D makes his way to P's house. Scenario 1: D breaks the window and stays over night. P sues to for compensatory damages. D must pay for the window. Scenario 2: D tries the door, and it's unlocked. P sues for trespass to land and asks for nominal or punitive damages because no harm was done or wants to make a point. P does not get either. Scenario 3: D comes in P's house. P kicks him back out into the blizzard. P will be liable for any harm caused by kicking D out. (Same if P removes D's property, which is subsequently damaged)

Known or anticipated trespasser

D knows or should know that they are there. Anticipated trespasser triggered by D's past experience. i.e. D knows that his land is used as a shortcut.

Unloaded gun

D makes an idle threat. Whether it is an assault depends on what P knows. Example: If P knows the gun is loaded, then it's an assault

Products liability based on representation theories (express warranty and misrepresentation)

D may be liable when a product does not live up to some affirmative representation. The two representation theories are: (1) Express warranty (2) Misrepresentation of fact

Publication

D must share the defamatory statement with at least one other person other than P. Publication need not be deliberate. D may be liable for negligent sharing with a third person. (Note: A one-on-one encounter with P does not count)

Duty of care owed to a licensee

D only has a duty of care where: (1) the hazard is concealed from the licensee, and (2) the possessor had prior knowledge of the hazard The possessor must protect licensees from all known traps.

Duty of care owed to a invitee

D owes P a duty care where: (1) the hazardous condition is concealed, and (2) the condition must be one that the possessor knew about in advance or could have known about through a reasonable inspection.

Physical attributes exception to the RPP standard

D owes reasonable care for a person with that disability. Any physical attribute that is relevant to the problem at hand. Examples: Blindness, height, etc. If D is blind, and sight is relevant, then D must act as a reasonable prudent person, who is blind.

Merchant requirement (Commercial supplier)

D routinely deals in goods of this type. Casual sellers are not merchants, so no strict liability. Service providers are not merchants of the product that is collateral to the service provided, but commercial lessors are merchants, such as car rental company. Every party in a chain of distribution is a merchant.

Appropriation

D uses P's name or image for a commercial purpose. (Example: Cereal company uses a professional athlete's image, without their permission.) Exceptions: (1) Newsworthiness exception: The use of a name or likeness in a newspaper or magazine is not actionable. (2) Cause of action not limited to celebrities.

Abnormally dangerous activities

D will be held strictly liable if he is engaged in an abnormally dangerous activity that causes a foreseeable to harm to P. The activity must: (1) Create a foreseeable risk of serious harm, even when reasonable care is exercised. (2) Be uncommon in the community where it is taking place.

Products liability based on intent

D will be liable to anyone injured by an unsafe product if D intended the consequences or knew that they were substantially certain to occur. Products liability action· based on intent are not very common. If intent is present, the most likely tort is battery. Who can sue: Privity is not required, o any injured plaintiff can sue. Damages: Compensatory and punitive Defenses: All available in intentional torts.

Private nuisance

D's action(s) that substantially and unreasonably interferes with the P's use and enjoyment of his land. To determine unreasonableness, the court balances the utility of D's acts versus the gravity of the harm to P. If the utility outweighs P's harm, then there will be no injunction.

Protective privileges as affirmative defenses

D's response to a threat emanating from P. (1) Self-defense (2) Defense of others (3) Defense of property.

Defamation analysis

DPDPD (1) D - Defamatory Statement (2) P - Publication to any third party who reasonably understands (3) D - Damages - general damages to reputation (presumed); special, pecuniary damages (not required for slander per se and libel) (4) P - Plaintiff must prove fault and falsity public (malice) or private (matter of public concern = must show negligence; private concern = only requires negligence) (5) D - Defenses - Proof or privileges (absolute or qualified)

Libel

Defaming statement is written down or captured on a permanent basis, such as audio recording. Damage is presumed, can get to the jury without evidence of damage, but jury award may be low.

Slander

Defaming statement that is oral or spoken. Not all slander cases are treated the same. Damages are presumed with slander per se, but if the slander falls out of these categories, the P must prove economic harm.

Interference with Business Relations - Privileges

Defendant's conduct may be privileged where it is a proper attempt to obtain business for itself or protect its interests. A privilege is more likely to be found if defendant: (i) interfered only with plaintiffs prospective business rather than with existing contracts; (ii) used commercially acceptable means of persuasion rather than illegal or threatening tactics; (iii) is a competitor of plaintiff seeking the same prospective customers; or (iv) has a financial interest in or responsibility for the third party, or is responding to the third party's request for business advice

False imprisonment

Elements: (1) D must commit an act of restraint (2) Intended to confine P (2) Within fixed boundaries

Trespass to land

Elements: (1) D must intentionally commit an act of physical invasion, and (2) The act must interfere with P's exclusive possession of the land.

Employer-employee vicarious liability

Employee will commit the tort, and P will sue the employee and the employer. The employer will be liable if employee was acting within the scope of employment.

Hiring party-independent contractor vicarious liability

Employer not vicariously liable for the acts of an independent contractor Exception: A business is vicariously liable if an independent contractor hurts an invitee; Common carrier owes passenger a nondelegable duty

Licensee

Enter land with permission, either express or implied. They do not confer economic benefit. Examples: Social guests; anyone that comes to your front door.

Example of statutory limitations of joint and several liability

Example: Plaintiff is awarded a verdict of $100,000. Defendant 1 is found 40% liable for Plaintiff' s injuries and Defendant 2 is found liable for the remaining 60%. Defendant 1 will only be responsible for paying $40,000. Defendant 2 will be responsible for paying $60,000, but he could also be responsible for paying the entire sum of $100,000 under joint and several liability if Defendant 1 is unable to pay because he was found liable for 60% or more of the total liability.

Reasonably prudent person exceptions

Exceptions: (1) D's superior skill or knowledge - ramps up the RPP standard. (2) D's physical attributes - acknowledges any physical difference that D has that is relevant to the problem and adds that to the RPP standard.

Bailment Duties - Duties Owed by Bailor

For a sole benefit of the bailee bailment, the bailor must inform the bailee of known, dangerous defects in the chattel. For a bailment for hire, the bailor must inform the bailee of chattel defects of which he is or should be aware

Private Nuisance - Unreasonable Interference Balancing Test

For an interference to be characterized as unreasonable, the severity of the inflicted injury must outweigh the utility of D's conduct. In balancing these respective interests, courts take into account that every person is entitled to use his own land in a reasonable way, considering: (1) the neighborhood, the values of the respective properties, (2) the cost to eliminate the condition complained of, and (3) the social benefits from allowing the condition to continue.

Proximate cause

Foreseeability or "fairness element:" At the end of the case, P must convince us that liability would be fair. Foreseeable consequences: It is fair to hold D liable for the harm. Unforeseeable consequences: It is unfair to hold D liable for the harm.

To whom is the duty of care owed?

Foreseeable victims only. Unforeseeable victims always lose. A victim is unforeseeable if the harm created is remote or far away from P. Rescuer exception: If the initial misfortune pulls people in, even if it's far away, then Palsgraf doesn't count. (Example: Helen Palsgraf - The world's only unforeseeable victim. D shoves a guy onto a moving train and dislodges a package carrying explosives, which detonates and causes an explosion that knocks a scale off the wall that falls and hits Helen Palsgraf. Palsgraf was too far away from the initial act to be considered a foreseeable victim.)

Common law privacy torts

Four common law privacy torts: (1) Commercial appropriation (2) Intrusion on seclusion (3) False light (4) Public disclosure of private facts

Scope of employment

Generally, intentional torts committed by employees are beyond the scope of employment. Exceptions: (1) Force is a part of the job, i.e. a security guard or bouncer who misuses force (2) Job that generates animosity, i.e. a debt collector, repo man, if that guy hits you, the employer will be held liable (3) Any intentional tort that is motivated by a desire to serve the boss' agenda, i.e. Security guard trying to stamp out shoplifting, so he stops and pats down every third person leaving the store.

Scope of consent

If D exceed the scope, then he goes back into a position of liability. Example: If P invites friend over to watch the football game, but D goes up into the attic. D only had permission to be in the family room.

Superior skill or knowledge exception to the RPP standard

If D has superior skill or knowledge, then the standard becomes the reasonable prudent person with that same superior skill or knowledge. Skill: A body of information or talent at doing something well. i.e. Race car driver is expected to be able to drive a car like an RPP, as well the add driving techniques that come along with being trained as a racecar driver. Knowledge: Can be a single morsel of fact that could be had by someone who is not so bright. i.e. A person who knows that a particular intersection is dangerous should behave like an RPP, who knows that intersection is dangerous.

Duty to an Invitee in Pennsylvania

If D will be liable to P if: (1) D knows of or reasonably should have known of the condition and (2) the condition involves an unreasonable risk of harm, (3) he should expect that the invitee will not realize it or will fail to protect themselves against it, and (4) D fails to exercise reasonable care to protect the invitees against the danger. An invitee must prove either the proprietor of the land had a hand in creating the harmful condition, or he had actual or constructive notice of such condition.

Strict products liability - Defective Product

If the product was: (1) dangerous beyond the expectation of the ordinary consumer ***or (2) a less dangerous alternative or modification was economically feasible, then the supplier has supplied a defective product.

Defamatory innuendo

If the statement is not defamatory on its face, P may plead additional facts as "inducement" to establish defamatory meaning by "innuendo."

Assumption of the risk - effect on other doctrines

Implied assumption of risk is generally abolished because of Pennsylvania's adoption of the comparative negligence statute. However, the statute specifically retains assumption of risk for downhill skiing and riding off-road vehicles. However, an action against a resort by a spectator injured by a skier is not subject to an assumption of risk defense.

Effect of settlement

In Pennsylvania, a joint tortfeasor entering into a settlement with P is permitted to seek contribution from other tortfeasors whose liability has been extinguished by the settlement. However, the settling tortfeasor cannot recover contribution from a tortfeasor whose liability is not extinguished by the settlement, even if the amount of the settlement turns out to be more than the settling tortfeasor's pro rata share of the judgment would have been.

Private nuisance claim in Pennsylvania

In Pennsylvania, a private action for nuisance lies for conduct that is (i) intentional and unreasonable, or (ii) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct for abnormally dangerous conditions or activities. Damages require P to prove significant harm.

Fault on defendant's part -- Public official or figure must prove actual malice

In Pennsylvania, a public figure plaintiff (who is required to establish actual malice in a defamation action) may introduce evidence that the defendant republished an allegedly defamatory statement after a complaint had been filed alleging that the statement was defamatory. This evidence may help establish that the defendant acted with malice in the original publication.

Privilege of Arrest - Shoplifting Detentions

In Pennsylvania, an officer, merchant, or merchant's employee must have probable cause to believe that retail theft has occurred or is occurring and that the person detained has committed it. The suspect may be detained in a reasonable manner for a reasonable time either on or off the premises in order to: (i) require the suspect to identify himself and afford time to verify the identification; (ii) determine whether the suspect has unpurchased merchandise in his possession; or (iii) inform a peace officer or institute criminal proceedings against the suspect. (Note: Whether probable cause existed is a question of law for the court to decide.)

Immunity of public officials for false arrest

In Pennsylvania, any public official acting pursuant to a court directive is immune from a tort action for false arrest. However, a victim may still have a claim for violation of federal constitutional rights.

Common carriers and innkeepers

In Pennsylvania, common carriers and innkeepers owe a special duty to their patrons, requiring the exercise of the highest degree of care.

False light prima facie case

Answer Discussion - Correct To establish a prima facie case for invasion of privacy based on publication by D of facts placing P in a false light, the following elements must be proved: (i) publication of facts about plaintiff by defendant placing P in a false light in the public eye; and (ii) the "false light" must be something that would be highly offensive to a reasonable person under the circumstances.

Products liability based on express warranty

Any affirmation of fact or promise concerning goods that becomes a part of the basis of the bargain creates an express warranty. Plaintiff: Any consumer, user, or bystander can sue. If a buyer sues, the warranty must have been "part of the basis of the bargain." If P is not in privity (e.g., bystander), he need not have relied on the representation as long as someone did. An express warranty may also be made in a lease of goods. Breach: Fault need not be shown to establish breach. P need only show that the product did not live up to its warranty. Causation, Damages, and Defenses: Same as with implied warranties. Disclaimer: A disclaimer will be effective only in the unlikely event that it is consistent with the warranty.

Slander per se against a professional

Any statement pertaining to P's business or profession.

Comparative negligence

Applies where P failed to exercise proper care for his or her safety. P was not reasonably prudent, so the jury must assign the percent of who's more at fault between P and D. Based on this percentage, P's recovery is reduced in proportion to fault. Classic example: The law against jay-walking.

Apprehension

Apprehension refers to knowledge of impending assault. To make an assault, P has to see it coming. Example: If D raises a hand to P, but P doesn't see it, then it's not an assault. But P does not need to be afraid.

Nominal damages

Appropriate in a suit based on an intentional tort where no actual harm can be shown, such as a noninjurious battery. But it is not permitted under a negligence theory.

Negligence

Basic Elements: (1) Duty (2) Breach (3) Causation (5) Proximate cause (4) Damages (Exam tip: Outline each element for any and every negligence essay. Must deal with all four, in order, in separate paragraphs.)

No physical harm or actual damage necessary for battery

Battery is a tort where no physical harm need be shown, and no actual damage need be proven. (Not: Actual harm is an element of the prima facie case of negligence, but is not required for most intentional torts.)

No physical harm or actual damage necessary for battery

Battery is a tort where no physical harm need be shown, and no actual damage need be proven. (Note: Actual harm is an element of the prima facie case of negligence, but is not required for most intentional torts.)

Slander per se

Categories for slander per se - PSSL: (1) Profession (2) Serious Crime (3) Slut shaming: (4) Loathsome disease Damages are presumed, but if the slander falls out of these categories, the P must prove economic harm.

Charitable immunity

Charitable immunity has been abolished in Pennsylvania.

Children's liability for intentional torts

Children are liable for their intentional torts when they are capable of forming the requisite intent. For assault, the intent required is to bring about the oftensive or harmful contact.

Negligence claims against kids

Children under 5 owe the world no duty of care, so no negligence claim. Children of 5+ owe the care of a child that is similar in age, experience, and intelligence, acting under similar circumstances. Exception: When a child is engaged in an adult activity, then standard RPP applies. (i.e. operating a motorized vehicle - farm equipment, motorboats, snowmobiles, jet skis, etc)

Extent of liability defenses

Comparative negligence is not applied to strict liability cases in Pennsylvania. Thus, "unknowing" contributory negligence (failure to discover or guard against the existence of the danger) is no defense, while "knowing" contributory negligence (i.e., assumption of risk) is a complete defense.

Defense to strict liability claims

Comparative responsibility: Any P stupidity or careless will result in an assignment of P fault and a reduction of P's recovery. Example: P ignores D's sign regarding blasting of explosives. P's stupidity will reduce his recovery.

Conditional words

Conditional words can negate the immediacy of the conduct. Example: D walks up to P and says "If you weren't my best fried, I'd beat the crap out of you."

Outrageous conduct

Conduct is outrageous when it exceeds all bounds of decency tolerated in a civilized society. The means makes this tort actionable. The intentional distress is not enough. Mere insults or curse words are not enough.

Conversion - Damage or Permanent Deprivation Not Required

Conversion does not require that D damage the chattel or permanently deprive P of the chattel. All that is required is that D's volitional conduct result in a serious invasion of the chattel interest of another in some way.

Vicarious liability of tavern-keeper

In Pennsylvania, it is unlawful for any liquor licensee "to sell, furnish, or give" any alcoholic beverage, to minors or visibly intoxicated persons. It is not unlawful to supply alcohol to insane persons or "habitual drunkards or persons of known intemperate habits," unless they are minors or visibly intoxicated. Adult social hosts are liable only for "knowingly" serving alcohol to a minor who subsequently injures himself or a third party; no social host liability is recognized for serving alcohol to an intoxicated adult. (Note that it is not enough that a social host "should have known" that alcohol was being served to a minor; there must be actual knowledge by the host.)

Statutory limitations of joint and several liability

In Pennsylvania, joint and several liability has been abolished except against defendants who are found liable for 60% or more of the total liability. Joint and several liability is also retained for cases involving: (i) fraud, (ii) intentional torts, (iii) Dram Shop Act violations (for serving visibly intoxicated persons), and (iv) violations of Hazardous Sites Cleanup Act. In all cases where joint and several liability is abolished, the trier of fact will apportion liability to all defendants and nonparties released by the plaintiff. Each defendant is liable only for that portion of the total verdict that corresponds to the amount of that defendant's liability.

Punitive damages limitation where parties consent to mutual combat

In Pennsylvania, parties involved in combat by mutual consent may recover actual but not punitive damages from each other.

Professional's duty to disclose risks of treatment

In Pennsylvania, the failure to disclose the risks of a surgical procedure creates an action in battery, not negligence.

Damage to plaintiff's reputation in a slander suit

In Pennsylvania, there are four recognized categories of slander per se for which general damages are presumed: 1. Statements imputing shortcomings incompatible with P's business, trade, profession, or office 2. Claims that P has a loathsome disease 3. Words imputing an indictable criminal offense; and 4. Allegations of serious sexual misconduct

Reasonable prudent person in emergency situations

In Pennsylvania, this modified standard of care (acting as a reasonable person would under the same emergency) is known as the Sudden Emergency Doctrine.

Bailment Duties

In a bailment relationship, the bailor transfers to the bailee possession of the chattel but not the title (e.g., bail or loans her car to bailee).

Fault requirement in Pennsylvania defamation claims

In addition to proving the common law elements of defamation, P must also show fault in all defamation actions in Pennsylvania. The elements of common law defamation are: (i) defamatory language; (ii) "of or concerning" the plaintiff; (iii) publication thereof by D to a third person; and (iv) damage to P's reputation. Falsity must be proven when the defamation involves the First Amendment and a matter of public concern.

Prima facie case for defamation

In addition to proving the elements of defamation, Pennsylvania also requires a showing of at least negligence as to truth or falsity in ALL defamation actions, even if the statement does not involve a matter of public concern.

Falsity in defamation cases

In cases not involving public figures or matters of public concern, the defendant has the burden of proving truth as a defense in Pennsylvania.

Premises liability

Occurs when someone encounters a hazardous condition on a piece of real estate. Four standards of care: (1) Unknown trespasser (2) Known or anticipated trespasser (3) Licensee (4) Invitee

Offensive contact

Offensive means would not be permitted by a normal person. Example: A tap on the shoulder would be permitted by a normal person, but a stroke of the hair by a man to a woman. (Could be construed as a grope. i.e. sexual harassment. Even without sexual harassment, petting is a battery.)

Law of necessity defenses

Only a defense in the three property torts: (i) trespass to land, (ii) trespass to chattels, and (iii) conversion. (1) Public necessity: D is the "savior" of the city. (2) Private necessity: D is acting out of self-interest or in the interest one other.

Battery: Lack of Informed Consent to Surgical Procedures

Operating on a patient without the patient's informed consent is characterized as a battery in Pennsylvania. To obtain an "informed consent'' to a surgical procedure, a surgeon must provide a description of the procedure and disclose risks and alternatives that a reasonable person would consider material to the decision of whether to undergo that medical treatment.

The well settled quartet of proximate cause

Outcomes foreseeable, D should be liable where: (1) Intervening medical negligence: D is liable for P's subsequent harm due to a medical professional's negligent care. (2) Intervening negligent rescue: D is liable for P's subsequent harm due to a good samaritan's negligent rescue. (3) Intervening protection or reaction forces: D is liable for P's subsequent harm due to a third party's response to D's negligent triggering of panic, chaos, or harm. (4) Subsequent disease or accident: D is liable for P's subsequent harm due to the initial harm D caused to P.

Identification of the plaintiff in a defamatory statement

P must establish that a reasonable third-party would understand that the statement referred to P. D may mention P by name, or use greater specificity, if necessary. D can also identify P by identifying P's position, if the position is held by a single identifiable person. (Example: "The senior partner of the corporate department at the largest firm in Philadelphia; April Blocker's youngest daughter, who graduated from Columbia Law School)

"Acting in concert"

P must prove that multiple defendants were working together against him.

When can a P borrow a criminal statute to prove negligence?

P must satisfy two elements: (1) P is a member of the class of persons that the statute is trying to protect. (Intermediate level of generality - pedestrians, other motorists, rather than "the public" (2) The accident involves the type of risk the statute is trying to prevent Class of person, class of risk test = Negligence per se. If the statute does not apply, then P goes back to the RPP standard.

Reckless and wanton acts

P's contributory negligence may be overcome if D's acts were reckless and wanton.

Injuries caused by animals

P's injury is caused by domestic and farm animals. D is not strictly liable for P's harm caused by the animal, UNLESS he had knowledge of the animal's dangerous or vicious propensities. "Knowledge of the animal's dangerous or vicious propensities" refers to this particular animal, not the species as a whole. (Example: If your dog has previously bitten someone, then you will be held strictly liable.) But D will be strictly liability for harm caused by wild animals, no matter how many precautions he takes.

Contact with the plaintiff's person

P's person could be anything P is touching, holding, or carrying. Examples: (1) A person grabs someone's purse that she is carrying. It is a battery. (2) Slapping a person's horse, while the person is riding the horse.

Modified or partial comparative

P's recovery is based on whether he or she is less than 50% at fault. If P under 50%, then his recovery is reduced. If P over 50% at fault, then he is completely barred from recovery.

Pure comparative fault

P's recovery is strictly based on numbers, or percentage of fault. (Exam tip: May be assumed, unless otherwise stated in the question.)

Parent-child vicarious liability

Parents are not vicariously liable for the torts of children. P must sue the kid.

Vicarious liability of parent for a child

Parents may he liable for up to $2,500 in damages, for the tortious, acts of their minor children.

Duty regarding negligent infliction of emotional distress

Pennsylvania courts follow the majority approach in bystander cases. Pennsylvania retains the requirement that the plaintiff suffer a physical manifestation of emotional distress in order to recover.

Wanton and willful conduct

Pennsylvania does not apply comparative negligence principles to wanton or willful misconduct because of the intent aspects of that conduct.

Children

Pennsylvania's rules on the minimum age for children to be capable of negligence are derived from criminal law: (i) children under seven are conclusively presumed to be incapable of negligence; (ii) children from seven to 14 are rebuttably presumed to be incapable of negligence; and (iii) children over 14 are presumed to be capable of negligence.

Intrusion on Plaintiff's Affairs or Seclusion

Personal injury claimants have a diminished expectation of privacy; hence, they can expect reasonable inquiry and investigation into their claim, including surveillance while in a public place.

Assumption of the risk

Plaintiff may be denied recovery if she assumed the risk of any damage caused by defendant's act. P must have (i) known of the risk and (ii) voluntarily proceeded in the face of the risk.

Vicarious liability

Predicated on relationships 1. Employer-employee 2. Hiring party - independent contractor 3. Owner of a car - driver of a car, and 4. Parent - child

Statutory standards of care

Prevents D from offering excuses for breaching the RPP by allowing P to borrow a criminal statute for the purpose of proving D's negligence. "If D violated the statute, then D must be liable for negligence."

Interference with Business Relations

Prima facie case: (i) existence of a valid contractual relationship between plaintiff and a third party or valid business expectancy of plaintiff; (ii) defendant's knowledge of the relationship or expectancy; (iii) intentional interference by defendant inducing a breach or termination of the relationship or expectancy ; and (iv) damages.

Respondeat superior

Principal liable for the NEGLIGENT acts of his agent but can also be liable for agent's intentional acts, if force is inherent in the job.

Defamation - Qualified privileges defense

Privilege granted where there's a public interest in encouraging candor. Examples: - Letters of recommendation or verbal reference (landlord, employer, credit card company) - Statements made to investigating police officers. Two conditions: (1) D must have reasonable, good faith belief that the statement is true. (Assume the statement is NOT true, b/c if it were, the D would not need this defense.) (2) D must confine himself to relevant material. D cannot interject extraneous information.

Manufacturing defect

Product differs from all others that came off the same assembly line, which makes it more dangerous than consumers would expect. The product "departs from its intended design" -- D's safety precautions are irrelevant.

Strict liability for products

Products include household and industrial products. When P is hurt by a product, P often has multiple causes of action. When the question specifies the theory, use that theory to answer the question.

Promised actions in the future

Promised actions can negate the immediacy of the conduct. Example: "Just you wait until tomorrow, I'm going to beat the crap out of you."

Damages required

Proof of damages are required for (1) IIED (2) Trespass to chattels, and (3) Conversion

Speech and debate clause

Provides immunity from defamation liability, but only for communications in one of the houses of Congress.

Publication required

Publication is required for: (1) Commercial appropriation (2) False light, and (3) Public disclosure of private facts

False Imprisonment timing and damages requirement

That confinement is only for a short period of time is immaterial, as is an apparent absence of actual damages.

What is the level of care owed?

The level of care exercised by a reasonably prudent person, acting under similar circumstances.

Products liability based on negligence

The prima facie case is the same as in any negligence case. Plaintiff 1nust show (i) duty, (ii) breach, (iii) actual and proxin1ate cause, and (iv) dan1ages. Duty: Any foreseeable P, including users, consumers, and bystanders Defendant: Any product supplier, but usually commercial suppliers Breach: Negligence leading to the supplying of a defective product. Proof of Negligence: Same as other negligence cases. P may invoke res ipsa loquitur in a manufacturing defect case. In a design defect case, the P must show that the D knew or should have known of the danger of the product as designed. Causation: An intermediary's (e.g. wholesaler's) negligent failure to discover a defect does not supersede the original manufacturer's negligence unless the intermediary's conduct exceeds ordinary foreseeable negligence. (Dealer won't be liable for not knowing about manufacturer's defect) Damages: Physical or property-based only (No purely economic damages) Defenses: Same as other negligence actions.

Severe emotional distress

There is no required way to prove severe emotional distress. The act does not necessarily need to cause physical distress, cause P to see a doctor, be on meds. (Exam Tip: Look out for a negation of this element in the question. The bar will describe D's conduct, then say that P was "mildly annoyed," "briefly irritated," "mildly chagrined," which negates the "severe emotional distress" prong.)

Defamation elements

Three Elements - SPD: (1) Statement: D must make a defamatory statement, identifying P. (2) "Publication:" To another person besides P. (3) Damages: To P's reputation.

Time of confinement

Time of confinement is irrelevant. Even if P eventually gets herself out, the confinement is sufficient for liability.

Directed verdict

To avoid a directed verdict in D's favor, P must show duty and breach. Res ipsa establishes duty and breach, so P can avoid a directed verdict for D. (Exam tip: P's motion for directed verdict will almost always be denied because there is almost always a triable issue. Both motions denied is the most common answer.)

Proving a defect in a products liability claim

To prove an actionable design defect in Pennsylvania, the plaintiff must show that either (i) the product had a dangerous condition that was unknowable and unacceptable to the ordinary consumer, or (ii) a reasonable person would conclude that the risk of harm from the product outweighed the burden or costs of taking precautions.

False imprisonment - Awareness of confinement

Tort victims in Pennsylvania must be either aware of the confinement or be harmed by it.

Trespassing children

Treated more generously than trespassing adults. They are entitled to reasonable prudent care, with respect to artificial conditions on the land. To avoid liability D must: Assess the likelihood that kids will trespass. If the risk is low, then D can leave hazards. If across from a middle school, then risk goes up. If you have an attractive nuisance, then risk goes up.

IIED v. NIED

Turns on whether D acted on purpose (IIED) or carelessly (NIED).

Exceptions to comparative contribution

Two indemnity situations (full contribution): (1) Vicarious liability: If a party has been held vicariously liable, then he can get indemnified against the active tortfeasor and be reimbursed for the full amount. (2) Products liability: A retailer or wholesaler can get indemnity from the manufacturer.

Contribution

Under Pennsylvania law, in cases involving joint tortfeasors, the apportionment of contribution among joint tortfeasors is based on the comparative fault of each tortfeasor.

IIED causation in bystander cases

When D intentionally causes physical harm to a third person and P suffers severe emotional distress because of it, P may recover by showing either the prima facie case elements of emotional distress or that (i) she was present when the injury occurred, (ii) she is a close relative of the injured person, and (iii) the defendant knew facts (i) and (ii).

Actual cause (Causation in fact) -- Increased risk of harm in medical negligence cases

When a physician's negligence is a substantial factor in causing a patient's injury, P does not have to prove to a certainty that proper care would have, as a medical fact, prevented the injury. If there was any substantial possibility of avoiding the injury, and the doctor has destroyed that possibility, he is liable. A causal connection between the injury suffered and the physician's failure to exercise reasonable care may be proved by evidence that the risk of incurring those injuries was increased by the doctor's negligent conduct.

Loss of consortium*

Whenever the victim of a tort is married, the spouse gets a second and independent cause of action against D. Consortium claims are derivative, meaning any defenses that would apply in the primary injured party litigation would apply to the secondary, non-injured party's claim. Meant to allow recovery for: (1) Loss of household services (2) Loss of society (companionship) (3) Loss of sex Each must be proven, not presumed.

Unascertainable cause

Where P doesn't know which D is the cause of the harm, the burden of proof shifts the D's to prove that it wasn't one of them. If neither can show this, then they are jointly liable.

Breach

Where P identifies specific wrongful conduct by D and explains why the conduct is wrongful. (1) Factual showing: Can be an act or omission. P will allege that the breach was that D [fill in facts]. (2) Argument: P will allege that this was unreasonable because [give reasons]. (i.e. Drinking impairs your ability to drive.)

Intentional infliction of emotional distress in Pennsylvania

While Pennsylvania has not expressly adopted the Restatement on intentional infliction of emotional distress, courts have cited it as providing guidance. Elements: (1) D must engage in outrageous conduct., and (2) P must then suffer severe distress.

Rescuers

While a rescuer is a foreseeable plaintiff, the rescuer will not be able to recover for injuries that are attributable to a superseding cause that cuts off the tortfeasor's liability for his negligence. (Example: Original tortfeasor not liable to injured rescuer when bridge on rescuer's own property collapsed while he was responding to the emergency call.)

Immediate battery

Words alone lack the immediacy required to be an assault. But the words themselves may sound immediate. E.g. "I'm going to hit you in 15 seconds." --> Under law, D has not P placed in apprehension of immediate battery, There must be CONDUCT.

Prenatal injuries

Wrongful birth and wrongful life actions are statutorily barred.

Joint and several liability

Allows P to collect total damages from one or from all joint tortfeasors. (Exam tip: Assume unless otherwise stated.)

Contributory negligence

An absolute defense in situations where the plaintiff contributed to his own injuries. D's defense may be overcome if P can show that he acted in a reckless and wanton manner.

Negligence per se

An act (or failure to act) in violation of a statutory requirement. Used to create a presumption of breach. Can be excused if D is confronted with an emergency beyond his control.

Adoption agency's general duty to disclose

An adoption agency has a duty to tell the truth when it volunteers information to prospective parents.

Negligent misrepresentation of an adoption agency

An adoption agency has a duty to use reasonable care to insure that the information the agency communicates is accurate. The agency may also be liable for negligently failing to disclose relevant information. (Note: Although adoption agency is not charged with making a comprehensive investigation into the background of a child it is placing, it must make a good faith effort to obtain the medical history of the child.)

Negligence of a person with authority over another

An affirmative duty that is imposed where D is in a position of authority and control over a third party, knows or should know of that party's misconduct, and does nothing to stop it. Example: D-principal knows that one of the teachers is molesting a student, but does nothing about it. He will be found liable for negligence.

Trespass to chattels

An intentional interference with personal property, everything you can possibly own, except land and buildings, includes computer data files. (1) Vandalism. Deliberately damaging the items. (2) Theft. Stealing someone's items. If the degree of harm is small, then it is a trespass to chattels. A mistake over ownership of the item will not absolve D. (e.g. Keying someone's car. Remedy: Cost of repair.)

Conversion

An intentional, serious interference with personal property, everything you can possibly own, except land and buildings, includes computer data files. (1) Vandalism. Deliberately damaging the items. (2) Theft. Stealing someone's items. If the degree of harm is great, then it is a conversion. Conversion translated to a "forced sale." A mistake over ownership of the item will not absolve D. **Special remedy: Recover not just cost of repair, but the full market value of the item. (Example: Taking a sledge hammer to someone's car. Remedy: full market value.)

Nuisance

An interference with P's ability to use and enjoy his real estate to an unacceptable or unreasonable degree. Inconsistent land use example: Smoke-belching facility, next to a facility with people with asthma. Spite: D's deliberate shining lights, emitting odors, having loud parties. (Exam tip: Look for an answer regarding (1) the degree of interference or that (2) discusses balancing the interests.) Church bells don't count.

Intrusion

An invasion of P's physical seclusion, in a way that would be highly offensive to an average person. Examples: Wiretapping, Covert video surveillance, intercepting your emails, eavesdropping, being a peeping Tom **Caution: P must be in a place where there is a reasonable expectation of privacy. No reasonable expectation of privacy at a cocktail party; people may eavesdrop.

Emergency

An ongoing disaster, which could be a natural or a man-made disaster. Example: A fire edging near a gasoline refinery; a gunman on campus.

Strict liability for wild animals

An owner of a wild (i.e., nondomestic) animal, even one kept as a pet, will be strictly liable for the damage caused by the animal. Strict liability for wild animals includes liability for the harm that results when a person is attempting to flee from what is perceived to be a dangerous animal.

Express assumption of the risk in PA

It is against public policy for a pre-injury release to relieve a party of liability for reckless conduct. Even in a voluntary recreational setting involving private parties, the public policy of encouraging compliance with minimal standards of care makes such releases void.

Consent as an affirmative defense

Key question: Did P have legal capacity? Only a person with legal capacity can give valid consent. (i.e. drunks, children, developmentally disabled people) But children and developmentally disabled people can give consent commensurate with their level of capacity. (i.e. 2 eleven-year-olds can agree to wrestle with each other; a high functioning autistic person may be able to consent to a variety of interferences - relate to their ability to understand.

Defective product

Key question: Is the product defective? (1) Manufacturing defect: (2) Design defect: (3) Information defect: (Exam tip: The bar often stipulates this.)

Duty

Key questions: (1) To whom is it owed: Foreseeable victims only. Unforeseeable victims always lose. Think Palsgraf. However, the rescuer exception allows remote victims to succeed. (2) What level of care does D owe: The level of care exercised by a reasonably prudent person, acting under similar circumstances. This is an objective standard of what a super responsible person would do that everyone held to, even those with lesser mental capabilities.

Reasonable inspection to fulfill the duty owed to an invitee

Limited by time, economics. Example: Slip and fall on cooking oil, in a supermarket. It is concealed because it's clear and odorless. If there is evidence of knowledge, then P wins. If not, then the question turns on how long the oil has been there.

Foreseeable use of the defective product

May be a foreseeable appropriate use or a foreseeable misuse. Examples of foreseeable misuses: Using a chair as a stepladder Driving a car at 100 miles per hour

Medical professional's duty to disclose

Medical professionals have a duty to disclose material risks, which are risks that a reasonable patient would want to know. (Objective standard) If the doctor does not disclose, then there is a lack of informed consent and the patient may recover. (Note: Under the majority rule, negligence is the theory that will normally apply on the MBE, but not always).

Products liability based on misrepresentation of fact

A seller will be liable for misrepresentations of facts concerning a product where: (i) The statement was of a material fact concerning quality or uses of goods (mere puffery insufficient), and (ii) The seller intended to induce reliance by the buyer in a particular transaction. Liability is usually based on strict liability but may also arise for intentional or negligent misrepresentations. Justifiable Reliance: Justifiable reliance is required (i.e., the representation was a substantial factor in inducing the purchase). Reliance need not be the victim's (it may be a prior purchaser's). Privity is irrelevant. Causation and Damages: Actual cause is shown by reliance. Proximate cause and damages are the same as for strict 1iability. Defenses: Assumption of risk is not a defense if P is entitled to rely on the representation. Contributory negligence is the same as in strict liability, unless defendant committed intentional misrepresentation.

Slander per se referring to the unchastity of a woman

A statement imputing unchastity to a woman. i.e. "Paula is a slut.

Slander per se alleging a serious crime

A statement that P has committed a serious crime (of moral turpitude). i.e. a crime that suggests dishonesty; violence, etc. (e.g. purchasing prostitute services)

Slander per se alleging that P has a loathsome disease

A statement that P suffers from a loathsome disease, either leprosy or a venereal disease.

Defamatory statement

A statement that has the tendency to adversely affect P's reputation. (1) Mere insults are not considered to be defamatory. (2) D must make a factual allegation that reflects negatively on P's character. (As long as it is understood in its defamatory sense, an accusation need not be believed to be actionable.) (Example: John Smith is embezzling money from the business. Dr. Smith acts kills patients.)

Private Nuisance - Substantial Unreasonable Interference

A substantial interference is one that is offensive, inconvenient, or annoying to an average person in the community.

Vicarious liability - Tavern keeper

A tavern keeper is NOT vicariously liable in the absence of a dramshop act. While several courts have imposed liability on tavernkeepers even in the absence of a Dramshop Act, this liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability.

Damages in defamation cases

In slander cases, P must prove D caused damages to his reputation, meaning that P suffered some pecuniary loss.

Co-defendant liability

Involves joint and several liability against multiple defendants. P can recover all the money from any one D. D who paid can recover from the other D's based on a theory of comparative contribution that is equal to their degrees of fault. But if the others are insolvent, the D is out of luck.

Products liability based on implied warranties of merchantability and fitness for a particular purpose

Merchantability: Refers to whether the goods are of average acceptable quality and are generally if it for the ordinary purpose for which the goods are used; and (ii) Fitness for a particular purpose: Arises when the seller knows or has reason to know the particular purpose for which the goods are required and that the buyer is relying on the seller's skill and judgment in selecting the goods. Plaintiff: Buyer, family, household, and guests can sue for personal injuries. These warranties also generally apply to a lease of goods Breach: If the product fails to live up to either of the above standards, the warranty is breached and the defendant will be liable. No proof of fault required. Causation: Same as in other negligence cases. Damages: Personal injury and property damages, and purely economic loss, are recoverable. Defenses: Include assumption of risk (using a product while knowing of breach of warranty) and contributory negligence to the same extent as in strict liability cases. Failure to give notice of breach is a defense under the UCC (even in personal injury cases). Disclaimers: Rejected for personal injury cases, but accepted for economic injury.

RPP in an emergency situation

Modified standard of care. Was D acting as a reasonable person would under the same emergency?

Attractive nuisance elements

Most courts impose on a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by dangerous conditions on his property. This is typically an artificial condition but occasionally a natural condition may suffice. To establish the doctrine's applicability, a plaintiff must show: (i) a dangerous condition on the land that the owner is or should be aware of, (ii) the owner knows or should know children frequent the vicinity of the condition, (iii) the condition is likely to cause injury (i.e., it is dangerous because of the child's inability to appreciate the risk), and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk.

Damages for IIED

Must be proven, but physical distress is not required

Consent to commercial appropriation

Must be specific and may not be implied.

Consent to commercial appropriation

Must specific and may not be implied.

Owner of a car - driver of a car vicarious liability

No vicarious liability, unless D-driver is doing an errand for D-owner. They also have a principal-agent relationship.

Nominal damages

Nominal damages are only appropriate in a suit based on an intentional tort where no actual harm can be shown.

Transferred intent

Occurs when D intends to harm one individual but unintentionally harms a second person instead, or when D intends to commit one tort but instead commits a different tort. Applies to: (1) Assault (2) Battery (3) False imprisonment (4) Trespass to chattels (5) Trespass to land

Defenses in a strict liability claim

Pennsylvania does not apply its comparative negligence rules to strict liability actions. Thus, the defenses of assumption of the risk, unforeseeable misuse of the product, highly reckless conduct, and product alteration/substantial change are complete defenses. A D asserting highly reckless conduct must prove that P's conduct was so reckless that it was the sole or superseding cause of the injuries. On the other hand, failure to discover or guard against the existence of a defect (i.e. ordinary negligence) is no defense. Hence, evidence of a P's ordinary negligence may not be admitted in a strict product liability action unless it is shown that an accident was solely the result of the user's conduct and not related to the defect in the product. In addition, a government contractor can raise a government immunity defense for a product prepared to government specifications.

Duty to preserve evidence

Pennsylvania does not recognize a cause of action for the tort of negligent spoliation of evidence.

Duty owed to a trespasser

Pennsylvania follows the general rule of no duty owed to undiscovered trespassers. However, Pennsylvania law also imposes a duty to refrain from wanton conduct (conduct in reckless disregard of a risk so great as to make the harm highly probable) or willful conduct (an intentional act of unreasonable character or risk known or so obvious that the actor must be aware of it).

Defense of others

Pennsylvania follows the majority approach, permitting the use of force to aid another person when the actor reasonably believes the aided person would have the right of self-defense.

Damage to plaintiff's reputation in a libel suit

Pennsylvania follows the majority rule that P does not need to prove special damages to recover for libel.

Nature of damages recoverable in a strict tort liability claim

Pennsylvania follows the majority view denying recovery under strict liability where the sole claim is for economic loss. But note that the fact that the measure of a plaintiff's damages is in economic terms does not transform the nature of the injury into a strictly economic loss. (Example: The destruction of a house and the personal property within it from a fire caused by an allegedly defective product is physical harm, not economic, and damages are recoverable in either strict liability or negligence as well as breach of warranty.)

Release

Pennsylvania follows the majority view on releases: A release of one tortfeasor does not discharge the other tortfeasors unless expressly provided in the release agreement.

Duty to retreat

Pennsylvania follows the modern trend, imposing a duty to retreat before using deadly force unless the actor is (i) in his own home or (ii) in his place of work and the assailant is not a co-worker.

Comparative negligence in Pennsylvania

Pennsylvania has a "partial" comparative negligence statute. Recovery is barred only when P's negligence exceeds the combined negligence of all D's, meaning that P can recover a portion of his damages if he was 50% or less at fault.

Intra-family tort immunities

Pennsylvania has abolished both husband-wife immunity and parent-child immunity.

Survival and wrongful death

Pennsylvania has adopted both a survival act and a wrongful death act. Though separate and distinct, these actions must be combined in one suit to avoid a duplicate recovery.

Who can sue in implied warranties of merchantability and fitness claims?

Pennsylvania has adopted the narrow version of the horizontal privity requirement, extending implied warranty protection to a buyer's family, household, and guests who suffer personal injury.

Vicarious liability of an automobile owner for a driver

Pennsylvania has not adopted either the "family car" or the "permissive use" doctrine. Hence, in most cases, a car owner will not be vicariously liable for the driver's torts. However, if the driver was unlicensed and was permitted by the owner to drive, the owner will be vicariously liable.

Duty of care in Pennsylvania

Pennsylvania recognizes several factors to weigh in determining whether a duty of care exists, including: (RUN FCPI) (i) Relationship - The relationship between the parties; (ii) Utility - The social utility of the actor's conduct; (iii) Nature & Forseeability - The nature of the risk imposed and foreseeability of harm incurred; (iv) Consequences - The consequences of imposing a duty on the actor; and (v) Public Interest - The overall public interest in the proposed solution

Private persons must prove negligence if matter of private concern

Pennsylvania requires proof of negligence even for defamation on matters of private concern.

Local government tort immunities

Pennsylvania retains governmental immunity EXCEPT for actions falling within the following eight categories provided by the statute: (i) Vehicle liability; (ii) Care, custody, or control of personal property; (iii) Real property; (iv) Trees, traffic controls, and street lighting; (v) Utility service facilities; (vi) Streets; (vii) Sidewalks; and (viii) Care, custody, or control of animals. (These exceptions are narrowly construed. Hence, those who flee (or help someone flee) from the police cannot recover under the vehicle liability provision for injuries from a police officer's operation of a vehicle in an attempt to stop the fleeing wrongdoer, because the officer's duty of cares owed only to innocent third parties. Liability under the above exceptions is limited to $500,000 per occurrence.)

Assumption of duty by acting - good samaritan statutes

Pennsylvania's good samaritan statute protects medical personal rendering emergency care or rescue, non-medical personnel rendering emergency care or rescue, who are certified in first aid, and volunteers without compensation rending services (including managers, coaches, instructors, umpires, or referees assisting in a not-for-profit sports program). There must be proof of gross negligence before P can recover. While trained personnel are the preferred users of automated external defibrillators, any individual who uses such a device in good faith in an emergency is protected, unless her actions are grossly negligent or done with the intent to harm. "Good faith" includes a reasonable belief that the emergency require immediate action.

Last clear chance doctrine

Rebuttal to contributory negligence defense, where P shows that D had the "last clear chance" to avoid the harm but didn't.

Reckless disregard in defamation of a public figure claim

Reckless disregard is not measured by whether a reasonable person would have investigated before publishing. There must be sufficient evidence to permit the conclusion that D in fact entertained serious doubts as to the truth of the communication when it was published.

Reckless disregard in defamation claims

Reckless disregard is not measured by whether a reasonable person would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of the communication when it was published.

Wrongful pregnancy

Recognized as a basis of negligence action in most states (not PA). Applies where a doctor: (1) owed a duty of care to a mother to properly perform a contraceptive procedure (2) breached that duty by improperly performing the procedure and failing to inform the mother that it was ineffective (3) the breach was the actual and proximate cause of the wife's pregnancy because it would not have happened but for the doctor's negligence, and it was foreseeable that she would become pregnant after being led to believe that procedure was successful (4) the parents may recover for (a) any additional medical expenses and (b) for pain and suffering from labor; but ordinary child-rearing expenses CANNOT be recovered.

Trespass to Chattels Elements

Requires: (1) an act of D that interferes with P's right of possession of the chattel. (ii) intent to perform the act bringing about the interference with P's right of possession (iii) causation, and (iv) damages The act of interference may be either dispossession of or damage to the chattel. (e.g. body shop painting P's race car the wrong color, leading to lost endorsements)

Res ipsa loquitor instrumentality requirements

Res ipsa Ioquitur does not apply when more than one party may have been in control of the instrumentality causing injury. It requires that the instrumentality causing the injury be in the defendant's sole control.

Res ipsa loquitur instrumentality requirements

Res ispa loquitor does not apply when more than one party may have been in control of the instrumentality causing injury, except in the case of a surgical team. It requires that the instrumentality causing the injury be in D's sole control.

No strict liability for domestic animals

Strict liability does not apply in an action to recover for a dog bite, even if the owner of the dog had knowledge of the dog's previous biting of another person.

Substantial certainty

Substitute for intent. D will be liable for an intentional tort where he is substantially certain that an outcome will result.

Wrongful civil proceedings

The "Dragonetti" statute makes both plaintiffs and their attorneys liable for wrongfully procuring, initiating, or continuing civil proceedings in "a grossly negligent manner or without probable cause." Accordingly, to succeed in Pennsylvania on a cause of action for wrongful use of civil proceedings, the plaintiff (the defendant in the original action) must prove that: (i) The underlying proceedings were terminated in her favor (ii) The defendant here (the plaintiff in the original action) initiated those proceedings without probable cause or acted in a grossly negligent manner (iii) The defendant here filed the original action for an improper purpose; and (iv) The plaintiff here sustained damages as a result. Attorneys have probable cause to bring an action when they reasonably believe in the facts on which the action is based and in the legal theory under which it is brought. Laypersons have probable cause to bring an action when they reasonably believe that the claim may be valid in reliance on the advice of counsel, sought in good faith, and after full disclosure of all relevant facts within their know ledge.

Compare--Proof of Harm in Legal Negligence Cases

The "increased risk of harm" doctrine does not apply to attorney malpractice. To prove an actual injury, a plaintiff must show that she would have won the underlying action absent the attorney's alleged negligence.

Defenses to defamation -- absolute privilege

The absolute privilege for judicial proceedings applies to filing a pleading in court but not providing a copy to the media.

Damages for false imprisonment

The apparent absence of damages is irrelevant to whether P can recover.

Bailment Duties - Duties Owed by Bailee

The bailee's standard of care depends on who benefits from the bailment: (i) for a sole benefit of the bailor bailment, there is a low standard of care; (ii) for a sole benefit of the bailee bailment, there is a high standard of care; and (iii) for a mutual benefit bailment (typically a bailment for hire), there is the ordinary care standard. The modern trend applies a duty of ordinary care under the circumstances, whereby the type of bailment is just one factor taken into account.

But for test

The breach is an essential argument of proving the harm. D's defense: Even if, I had been careful, P would have still been harmed.

Pre-existing product defect

The defect must have existed when the product left D's hands. The presumption of no alteration if the product has moved through ordinary channels of distribution. But this presumption can be rebutted.

Negligent infliction of emotional distress - misdiagnosis exception

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 ( e.g., doctor's misdiagnosis that patient has terminal illness).

Damages

The eggshell skull doctrine: Once P establishes the other elements, P recovers for all harm suffered, even if surprisingly great in scope. "You take your plaintiff as you find your plaintiff."

Intent

The first element of intentional torts is "intent," which means D desired the outcome or knew that it was a consequence of his actions. Always look for: (1) An act (2) Intent, and (3) Causation

Employer-Independent Contractor Nondelegable Duty Exception

The general rule is that a principal will not be liable for tortious acts of its agent if the agent is an independent contractor. However, a broad exception will impose liability on the principal if the duty is nondelegable because of public policy considerations. As long as the employer is not subject to a nondelegable duty, it will not be liable for the negligence of an independent contractor in carrying out that duty.

Approach negligence claims

The higher up the ladder of elements, the stronger the answer choice will be for D. (Cut off the liability early) The lower down the ladder of elements, the stronger the answer choice will be for P. (Get far down the ladder)

Products liability based on strict liability

The prima facie case: (i) a commercial supplier of a product; (ii) producing or selling a defective product; (iii) actual and proximate cause; and (iv) damages. For liability to attach, the product must reach plaintiff without substantial alteration. Privity: Users, consumers, bystanders Defendant: Commercial suppliers only. (No strict liability for services involving products) Production or sale of a defective product: P must show that the product is defective beyond the expectations of the ordinary customer. Retailers may be liable even if no opportunity to inspect. Causation: For actual cause, P must show that the defect existed when the product left D's control. If the defect is difficult to trace, P may be able to rely on an inference that this type of product failure ordinarily would occur only as a result of a product defect. Proximate cause is the same as in negligence cases. Damages: Physical or property-based only (No purely economic damages) Defenses: In contributory negligence states, ordinary contributory negligence is no defense where P merely failed to discover the defect or guard against its existence, or where P misuse was reasonably foreseeable. Assumption of the risk is a defense. In most comparative negligence states, courts will apply their comparative negligence rules. Disclaimers: Disclaimers are irrelevant in negligence or strict liability case if personal injury or property damages occur.

Information defect

The product has: (1) residual risks that cannot be designed out in a practical way, (2) the risks are hidden to the consumer, and (3) the product lacks adequate warnings.

Reasonably prudent person (RPP)

The reasonably prudent person has no external attributes - no height, weight, sex, or race. But his behavior is "human buzzkill." He is SUPER responsible and covers all of his bases. We make no allowances for D's shortcomings. Everyone must live up to the reasonably prudent person, even if he's intellectually disabled, mentally ill, a novice, etc.

Design defect

The risks of the product's design outweigh the utility of the product to the degree that a reasonable person wouldn't market it. P must offer an alternative that is: (1) safer, (2) more economically practical, and (3) more practical in a utilitarian sense.

Scope of protective privileges

The scope of the protective privileges defense is limited by proportionality. (Example: If P slaps D, D's response must be proportional. i.e. a slap) D may never use deadly force or deadly mechanical devices to protect property.

The special case in defamation

The underlying statement is a matter of public concern. We don't want the threat of defamation to chill public discourse. (Examples: - Whether a public official is taking bribes. - Whether a professional athlete is taking performance enhancing drugs. - Whether Donald Trump was getting peed on by Russian prostitutes.) P must prove: (1) Falsity, and (2) Fault: D did not make an honest mistake. (i) If the statement is about a public figure, then D must have acted with deliberate or reckless disregard for the truth. (ii) If the statement is about a private individual, D must have acted negligently, without reasonable care.

Adequacy of the warning

The warning must be sufficiently prominent. It may need a sticker, to be bilingual, include pictures, and/or instructions on how to avoid the danger.

False light

The widespread dissemination of a material falsehood about P that would highly offensive to an average person. D is running around town telling people a big fat lie about P. Tort of "false gossip." Overlaps with defamation, but not the same. D tells everyone that P is embezzling money. D can be liable for both false light and defamation. The damages are different. Defamation = economic damages. False light = dignitary damages - emotional distress and mental anguish are enough. But D may commit false light, without being defamatory. For example, D could go around telling everyone that Obama is a Muslim, but he is in fact a Christian. It's not defamatory, but it an imposition.

Public Disclosure of Private Facts

The widespread dissemination of private, confidential information about P that would be highly offensive to an average person. Examples of confidential information, which if shared would qualify as disclosure: Income tax returns Transcripts Medical records Investigative journalism exception: Newsworthiness exception that is interpreted broadly. i.e. Tabloids.

Theories of products liability

There are five theories of liability that plaintiff may use: (i) intent, (ii) negligence, (iii) strict liability, (iv) implied warranties of merchantability and fitness for a particular purpose, and (v) representation theories (express warranty and misrepresentation) (Tip: If the question does not indicate what theory of liability plaintiff is using, apply a strict liability theory because that is the easiest to prove.)

Merged cause case

There are two or more negligent, defendents, who act independently to harm P, having a combined effect. Use substantial factor test: Ask whether each breach was a substantial contributing factor to the harm. If either was capable of causing the harm by itself, then each would be a factual cause and both D's are liable.

Duties to act affirmatively

There is no duty to act affirmatively, meaning there is no duty to take a course of action. No duty to rescue. **Exam tip: No matter how egregious the facts are, there is no duty to rescue. There is no liability.

Interference with P's exclusive right to possess the land

This cause of action belongs to the person in possession, not the owner. i.e. A renter has a cause of action, not the landlord The air above and the soil below the property is included, but only out to a reasonable difference. (i.e. A commercial airline flying overhead, is not a trespass, but a kid throwing a ball through the air of your property or putting your hand out into the air of the neighbor's property both count as trespasses.)