BAR REVIEW: TORTS

Conversion

(1) act by the defendant that interferes with the plaintiff's right of possession in the chattel (2) interference is serious enough in nature or consequences to warrant that the defendant pay the chattels value Acts of conversion (a) wrongful acquisition (theft) (b) wrongful transfer (c) wrongful detention (d) substantially changing, severely damaging, or misusing a chattel If the harm is small -> trespass to chattels If the harm is big -> conversion

To establish a prima facie case for any intentional tort, the plaintiff must prove;

(1) an act by the defendant (2) an intent by the defendant -> intent to bring about the forbidden consequences that are the basis of the tort. Does not need o intend the specific injury that results (3) causation of the result to the plaintiff from the defendant's act "act" = volitional movement by the defendant

Intentional Infliction of Emotional Distress

(1) an act by the defendant amounting to extreme and outrageous conduct (mere insults are not considered outrageous) (2) the plaintiff must suffer severe emotional distress "extreme or outrageous conduct" -> this is conduct that transcends all bounds of decency tolerated in a civilized society." "Hallmarks of Outrageousness" (Conduct that is not normally outrageous may become so if) (1) it is continuous in nature (2) it is committed by a certain type of defendant (common carrier (transportation) or innkeepers may be liable even for mere 'gross insults') OR (3) it is directed toward a fragile class (a) young person (b) old people (c) pregnant women (d) supersensitive adults if sensitives are known to defendant) Intent: Unlike all the other intentional torts, recklessness as to the effect of the defendant's conduct will satisfy the intent requirement Damages -> actual damages (severe emotional distress), not nominal damages, are required. Proof of physical injury generally is not required. The more outrageous the conduct, the less proof of damages is required. Proof of damages -> don't have to present any sort of proof, like you missed work, taking meds now, jury decides if its severe enough.

Special Negligence Duties Based on Type of Defendant

(1) children (2) professionals (3) Duty to disclose risks of treatment (4) possessors of land

Products Liability

(1) could be negligence claim (2) could be UCC claim (breach of warranty of merchantability) (3) could be misrepresentation or fraud

Remedies for Private Nuisance

(1) damages -> plaintiff usually will be awarded damages (2) injunctive relief -> if the legal remedy of damages is unavailable or inadequate (for example, the nuisance will cause irreparable injury), injunctive relief will be awarded. in this cases the court will consider the relative hardships. However, Hardships will not be balanced if the conduct was willful (3) abatement by self-help -> available after notice to the defendant and their refusal to act. Only necessary force may be used. In public nuisance cases, only a public authority or a private party who has suffered some unique damage can seek an injunction or abatement

Strict Liability for Animals

(1) domestic animals -> (a) an owner is generally not strictly liable for injuries caused by domestic animals (house / farm) (b) unless they have knowledge of that particular animal's dangerous propensities that are not common to the species. (first time dog bites, doesn't count, but every time after you will be presumed to have knowledge) (c) even if you have that knowledge, not liable to trespassers (d) trespassing animals -> an owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals (2) Wild Animals -> an owner is strictly liable to licensees and invitees for injuries caused by wild animals (even those kept as pets)

Negligence

(1) duty - question of law (2) breach - predominantly about facts (3) causation - logic and policy (a) factual (b) proximate (4) damages

How to satisfy premises liability duty

(1) eliminate the hazardous condition (a) repair (b) replace (c) remove (2) warn about hazardous condition - form of warning depends on facts. Oral warning may be okay if they are only there for a short time, but if they will be there for a long time or frequently, then may need to be a sign

Battery

(1) intentional (2) harmful or offensive contact (a) harmful -> can't really get tricky here (too easy to test) (b) offensive (can mess with us a little more) -> think of it as unpermitted (3) with Plaintiff's person direct or indirect contact -> contact can be direct (for example, striking the plaintiff) or indirect (for example, setting a trap for the plaintiff to fall into) Also, plaintiff's person includes anything connected to the plaintiff (for example, clothing or purse) -> "extended personality rule" Damages: the p can recover nominal damages even if actual damages aren't proved. The plaintiff may recover punitive damages for malicious conduct

Special Standards

(1) kids (2) professionals (3) premises liability (4) statutory standards of care ("negligence per se") (5) Affirmative duties to act (6) negligent infliction of emotional distress

Establishing negligence per se requires

(1) legal: statute is legally appropriate (two part test) (1) the plaintiff is within the protected class (think of noun that can encompass a class of people that is narrower than public) (2) the statute was designated to prevent the type of harm suffered by the plaintiff. (2) factual: defendant violated statutory command

Types of Defects

(1) manufacturing defect (2) design defects (3) information defects

Manufacturing Defects

(1) manufacturing defect -> a product emerges from manufacturing different from and more dangerous than the product that were made properly Liability-> defendant will be liable if the plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect

Trespass to Land

(1) physical invasion on plaintiff's property (a) by person (b) by object intent -> intend to enter the land, don't have to know that you are on someone else's land or that you crossed a boundary that you didn't know existed. (2) of land (a) -> doesn't have to be owner, can be renter. (b) land includes air above / soil beneath to reasonable distance Damages -> the plaintiff can recover without showing any actual injury to the land

Trespass to Chattels

(1) Act by the defendant that interferes with the plaintiff's right of possession in a chattel Two types of interference (1) intermeddling -> directly damaging the chattel (2) dispossession -> depriving the plaintiff of their lawful right of possession of the chattel Intent -> intent to trespass isn't required; intent to do the act of interference is all that is needed. The defendant's mistaken belief that they own the chattel is no defense Actual Damages -> not necessarily to the chattel, but at least to a possessory right - are required Remedies (1) the plaintiff may recover the fair market value at the time of conversion (2) or possession (replevin)

False Imprisonment

(1) An act or omission on the part of the defendant that confines or restrains the plaintiff the testable part is restraint Sufficient acts of restraint include: (1) physical barriers (2) physical force directed against the plaintiff, immediate family, or personal property (taking someone's purse) (3) Direct threats of force (4) indirect or implied threats of force (5) failure to release the plaintiff when under legal duty to do so (for example, a taxi driver refusing to let a customer out) (omissions) (6) invalid use of legal authority (false arrest) insufficient acts of restraint (1) moral pressure (2) future threats (2) the plaintiff must be confined to a bounded area (a) timing -> irrelevant how short the period of the confinement is (b) awareness -> plaintiff must know they are confined or be harmed by it (c) what is a bounded area -> for an area to be "bounded" freedom of movement must be limited in all directions. THERE MUST BE A REASONABLE MEANS OF ESCAPE that the plaintiff can reasonably discover way out is not reasonable if (1) dangerous (2) disgusting (3) humiliating (4) hidden Damages -> the plaintiff can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if the defendant acted maliciously.

Affirmative Defenses to Intentional Torts

(1) Consent - the plaintiff's consent to the defendant's conduct is a defense, but the majority view is that one cannot consent to any criminal act. (a) express (b) implied (2) Protective Privileges - self defense, defense of others, defense of property, reentry onto land, recapture of chattels, (last two not allowed anymore, were common law) (a) is the privilege available -> apply only for preventing the commission of torts, not retaliation (require proper timing, need to be imminent or occuring) (b) is a mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed? (c) was a proper amount of force used (3) Necessity (a) public necessity (b) private necessity

Duties owed by bailor

(1) sole benefit of the bailee bailment -> inform bailee of known, dangerous defects in the chattel (2) bailment for hire -> bailor must inform the bailee of chattel defects of which they are or should be aware

Exceptions to no affirmative duties to act

(1) special relationship between parties -> A special relationship between the parties (for example, parent-child) may create a duty. Similarly, common carriers, innkeepers, shopkeepers, and others that gather the public for profit owe duties of reasonable care to aid or assist their patrons In addition, place of public accommodation have a duty to prevent injury to guests by third persons (modern view says that it is any preexisting relationship, but on MPC only do formal ones). (2) peril due to own conduct -> one has a duty to assist someone they have negligently or innocently placed in peril in these first two, the duty is not to rescue, the duty is to act reasonably under the circumstances. (3) assumption of duty by acting -> one may assume a duty to act by acting (for example, once the defendant undertakes to aid someone, they must do so with reasonable care) exception-> many states have enacted good Samaritan statutes, which exempt doctors, nurses, etc., from liability for ordinary, but not gross, negligence

Implied Consent

(a) custom and usage -> contact sports, ordinary incidental contacts (b) body language consent -> someone reaches out and says "my name is Seth" implied that you can shake their hand (c) by law -> when action is necessary to save a person's life or some other important interest in person or property

Defense of Others

(a) when is it available -> one may use force to defend another when they reasonably believe that the other person could have used force to defend themselves (b) is mistake allowed -> a reasonable mistake as to whether the other person is being attacked or has a right to defend themself is permitted (c) how much force may be used- > the defender may use as much force as they could have used in self-defense if they were the one threatened with the injury

Defense of Property (torts)

(a) when is it available? One may use reasonable force to prevent the commission of a tort against their real or personal property. A request to desist or leave must first be made unless it clearly would be futile or dangerous. Does not apply once the tort has been committed; however, one may use force in hot pursuit of another who has tortiously dispossessed the owner of their chattels because the tort is viewed as still in profess if the defendant is in the act of fleeing (b) is mistake allowed? (1) a reasonable mistake as to whether an intrusion has occurred or whether a request to desist is required is allowed (2) a mistake is not allowed as to whether the entrant has a privilege (for example, necessity) that supersedes the defense of property right, unless the entrant conducts the entry so as to lead the defendant to reaosnable believe it is not privileged (if they don't tell you what the necessity is) (c) how much force may be used reasonable force may be used, but one may not use force causing death or serious injury unless the invasion of property also entails a serious threat of bodily harm. (can't set up booby traps) (d) shoplifting detentions -> a shopkeeper has a privilege to detain a suspected shoplifter for investigation. For the privilege to apply, the following conditions must be satisfied: (1) there must be a reasonable belief as to the fact of theft (2) the detention must be conducted in a reasonable manner and only nondeadly force can be used (3) the detention must be only for a reasonable period of time and only for the purpose of making an investigation

Assault

(intentional) (1) act by the defendant creating a reasonable apprehension in the plaintiff Apprehension in this context doesn't mean fear in this situation. It means knowledge of the threat from the defendant's act (either a harmful or offensive touch) , although the plaintiff need not be aware of the defendant's identity. Fear is NOT required. Courts will not protect a plaintiff against exaggerated fears of contract. Third restatement has changed this to anticipation. if the defendant has the apparent ability to commit a battery, this will be enough to cause a reasonable apprehension. "unloaded gun problem" -> I tell you I'm going to kill you, pull out a gun that is unloaded, so I can't actually kill you. If P knows it is unloaded -> no If P knows it is loaded -> yes battery (2) of an immediate battery (harmful or offensive contact to the plaintiff's person) the plaintiff must be apprehensive that they are about to become the victim of an immediate battery. requirement of immediacy -> the plaintiff must be apprehensive that they are about to become the victim of an immediate battery. Words Alone (a) in the vast majority of cases, words alone are not enough (lack immediacy). For the defendant to be liable, the words must be coupled with conduct. (b) BUT words can destroy immediacy (like saying "If you weren't my friend, I'd slap the shit out of you) (scenario 2) "I'm going to beat you up tomorrow" Damages: the plaintiff can recover nominal damage even if actual damages are not proved. Malicious conduct may permit recovery of punitive.

Strict Liability affirmative defenses

1.) common law (only if MBE says "traditional rule") - knowingly encountering a dangerous situation bars recovery. 2.) use the comparative fault rule

Negligence Infliction of Emotional Distress ("Bystander Case")

A bystander outside the "zone of danger" of physical injury who sees the defendant negligently injuring another can recover damages for their own distress as long as: (1) the plaintiff and the person inured by the defendant are closely related (spouse, parent, child) majority do it very limited. (2) the plaintiff was present at the scene of the injury and personally observed or perceived the event most states have dropped physical injury here Emotion is grief here.

Statutory Standards of Care (negligence per se)

A clearly stated specific duty imposed by a statute providing for criminal penalties (including fines for regulatory offenses and ordinances for speeding) may replace the more general common law duty of due care if: (class of person / class of risk test) (1) the plaintiff is within the protected class (2) the statute was designated to prevent the type of harm suffered by the plaintiff. Excuse for violation-> (turns to RPO) (a) violation of some statutes may be excused where compliance would cause more danger than violation or (b) where compliance would be beyond the defendant's control

Duty to Disclose Risks of Treatment

A doctor has a duty to disclose the risks of treatment to enable a patient to give an informed consent. A doctor breaches this duty if an undisclosed risk was serious enough that a reasonable person in the patient's position would have withheld consent on learning of the risk

Nuisance

A nuisance is an invasion of property rights by tortious conduct. (1) private (2) public

Private Necessity

A person may interfere with the real or personal property of another when the interference is reasonably and apparently necessary to avoid threatened injury from a natural or other force and the threatened injury is substantially more serious than the invasion that is undertaken to avert it. Limited or qualified defense (1) must pay compensatory damages (2) but not liable for nominal / punitive damages (3) can remain as long as emergency continues (right of sanctuary) if you don't cause any damage, then you don't owe anything.

Duty of Care to rescuers (exception to zone of danger)

A rescuer is a foreseeable plaintiff where defendant negligently put himself or a third party in peril (danger invites rescue) But: firefighters and police may be barred by the "firefighter rule" from recovering for injuries caused by the risks of rescue

Duty to Intended Beneficiaries of Economic Transactions

A third party for whose economic benefit a legal or business transaction was made (for example, a beneficiary of a will) may be a foreseeable plaintiff

Express Consent

Actual oral or written Any consent fact pattern raises two questions: (a) was there valid consent (i) capacity required (ii) express (actual consent) exceptions to express (i) mistake will undo express consent if the defendant knew of and took advantage of the mistake (ii) consent induced by fraud will be invalidated if it goes to an essential matter (iii) consent obtained by duress will be limited capacity people can consent to some stuff ex: 8 year old can consent to wrestle other 8 year old ex 2: down syndrome person can consent to haircut (b) did the defendant stay within the boundaries of the consent

Public Nuisance

An act that unreasonably interferes with the health, safety, or property rights of the community, for example, using a building for criminal activities such as prostitution. Recovery by a private party is available for a public nuisance only if the private party suffered unique damage not suffered by the public at large

Duty to Known Trespasser

Anticipated -> you don't know that they are there, but should. On the test, will be identified in the fact pattern by noting a pattern of repeated trespasses As to discovered or anticipated trespassers, the land possessor must warn of or make safe any conditions that are: (1) artificial (2) highly dangerous (involving risk of death or serious bodily harm) (3) concealed, and (4) known to the land possessor in advance

merchant element

Any commercial supplier can be liable (1) does not extend to casual sellers (2) does not extend to services (3) includes commercial lessors (4) includes entire distribution chain

Factual Causation "But for" test

Applies in cases where there are multiple acts that combine the injury, but each is insufficient to cause the injury alone an act or omission is a factual cause of an injury when the injury would not have occurred "but for" the act or omission. This test applies where several acts (each insufficient to cause the injury alone) combine to cause the injury. A defendant can refute this by showing that the plaintiff would still have been injured "even if" the act or omission did not occur

Imputed Contributory Negligence

As a general rule, the contributory negligence of a third party will be imputed to a plaintiff (and bar the plaintiff's claim) only when the relationship between the third party and the plaintiff is such that a court could find the plaintiff vicariously liable for the third party's negligence. Negligence is imputed in employer-employee, partner, and joint venturer relationships. Negligence is not imputed between spouses, parent and child, and automobile owner and driver.

Breach of Duty in Negligence

Breach -> concrete, specific behavior by defendant that falls short of relevant standard of care Can be an act or omission Can be proven by (1) custom or usage (but not conclusive) (2) violation of statute (neg per se) (3) res ipsa loquitur

Duty of Care for Children

Children under the age of 5: Cannot be negligent, no standard Children 5-18: Children are held to the standard of a child of like age, intelligence, and experience. This is a subjective test (pro-defendant). Children engaged in potentially dangerous adult activities may be required to conform to an "adult" standard of care. (common, only one litigated around the country with consistency, is driving a motorized vehicle) (boats, snowmobiles, four wheelers, farm equipment)

Contributory Negligence

Contributory negligence is negligence on the part of the plaintiff that contributes to the plaintiff's injuries. The standard of care for contributory negligence is the same for ordinary negligence Hence, a rescuer will not be deemed contributorily negligent without taking into account the emergency situation Also, the plaintiff's violation of an applicable statute may be used to establish their contributory negligence

Strict Liability for Abnormally Dangerous Activities

Courts generally impose two requirements for finding an activity to be abnormally dangerous (1) the activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors (technology can't make it safe) (2) the activity is not a matter of common usage in the community will be one of the few: (a) anything involving the use of explosives or blasting (b) handling or transporting dangerous chemical / biological materials (c) any use of nuclear energy / radiation

Damages

Damage is an essential element of negligence; thus, damage will not be presumed (and nominal damages are not available). Eggshell-Skull Doctrine: In all cases, the defendant takes the plaintiff as they find the plaintiff; meaning, the defendant is liable for all damages, including aggravation of an existing condition, even if the extent or severity of the damages was unforeseeable

Collateral Source Rule

Damages are not reduced just because the plaintiff received benefits from other sources (for example, health insurance)

Public Necessity

Defendant acts in emergency to protect community. Absolute defense the type of emergency must be continuing and ongoing, if its a one time thing probably not going to work. Will likely be a Hurricane, Tornado, something like that.

Effect of Comparative Negligence on Assumption of risk

Express assumption-> complete defense Implied assumption-> analyzed as either (1) a limitation on the duty owed to the plaintiff (meaning the defendant does not owe a duty to protect the plaintiff from known risks, such as being hit by a foul ball at a baseball game) or, (2) (more commonly) contributory negligence (meaning that the plaintiff unreasonable encountered a known risk, thereby reducing or barring their damages under the state's comparative negligence rules)

To whom do you owe a duty?

Foreseeable victims -> within the "zone of danger" in the Palsgraaf case. But near and far will vary depending on the activity. Do NOT owe duties to unforeseeable victims (they will always lose negligence lawsuits)

Independent Contractor Situations

General Rule: Hiring party generally not liable for torts committed by independent contractors Exception: non-delegable duties due to public policy example -> duty of a business to keep its premises safe for customers

Affirmative Duties To Act

Generally, one does not have a legal duty to act. There is no duty to rescue

Information Defect

Hidden risks without adequate warnings / instructions testable point: whether the warning is actually sufficient adequate warnings: (1) prominent - calculated to come to the attention of the user (2) comprehensible - can under stand it. Multiple language might not be enough, if it is for kids or stupid people may need to have pictures (3) provide information about mitigating risk - if its weed killer, probably can't just say "toxic fumes", need to explain how to avoid the toxic fumes

Proximate Cause

In addition to being a cause in fact, the defendant's conduct must also be the proximate cause of the injury. Even though the conduct actually caused the plaintiff's injury, it might not be deemed to be the proximate cause. Can basically think of this as a fairness (foreseeability) test General Rule: A defendant generally is liable for all harmful results that are the normal incidents of and within the increased risk caused by their negligent acts. This is a foreseeability test. Foreseeability Guidelines (1) passage of time -> more soon more foreseeable (2) geographic distance -> things that are closer to breach are more likely to be foreseeable (3) prior occurrence -> if something hasn't ever happened before it is basically unforeseeable In indirect cause cases, an intervening force combines with the defendant's conduct to cause the plaintiff's injury. Proximate cause exists in indirect cause cases only if the defendant's negligence caused a foreseeable harm or caused a foreseeable reaction from an intervening force

Res Ipsa Loquitur

In some cases, the very occurrence of an event may tend to establish a breach of duty. The doctrine is used by a plaintiff without information about the defendant's breach. The doctrine of res ipsa loquitur requires that the plaintiff show that: (1) the accident causing the injury is a type that would not normally occur unless someone was negligent (2) the negligence is probably attributable to the defendant (meaning this type of accident ordinarily happens because of the negligence of someone in the defendant's position) This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant.

Res Ipsa Loquitur

In some cases, the very occurrence of an event may tend to establish a breach of duty. The doctrine of res ipsa loquitur requires the plaintiff to show that 1.) the accident causing the injury is a type that would not normally occur unless someone was negligent 2.) the negligence is probably attributable to the defendant (meaning this type of accident ordinarily happens because of negligence of someone in the defendant's position) This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant.

Duty of Care to Invitees

Invitee: Enter land with permission for financial benefit of possessor. (includes when open to public at large) (a) store customers (b) public land goers, picking up someone from airport An invitee will lose invitee status if they exceed the scope of the invitation. The landowner or occupier owes a duty to invitees regarding hazardous conditions that are: (1) concealed from invitee (2) known to the land possessor in advance or could have been discovered by a reasonable inspection ALL REASONABLE KNOWABLE TRAPS reasonable inspections take place at reasonable intervals, reasonable time, reasonable in scope similar intervals -> look at similar property owners, not conclusive but helps (custom)

Implied assumption of risk

Knowledge may be implied where the risk is one that an average person would clearly appreciate. The plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk or in situations involving fraud, force, or an emergency. Also, common carriers and public utilities may not limit their liability by disclaimer, and members of a class protected by statute will not be deemed to have assumed any risk.

Duty

Legally imposed obligation to take risk reducing precautions for the benefit of others. Basic Standard of Care - The Reasonably Prudent Person ("wouldn't like to go drinking with them") (always prepared for emergencies, overly attentive) All persons owe a duty to behave with the same care as a hypothetical reasonably prudent person in the conduct of their activities to avoid injuring foreseeable victims. The reasonably prudent person standard is an objective standard, measured against what the average person would do. A defendant's mental deficiencies and inexperience are not taken into account (in other words, low intelligence is no excuse" ). Nothing about the defendant's condition is considered.

Duty of Care to Licensees

Licensee: Enters land with permission but without financial benefit to possessor (a) social guests As to licensees, the land possessor has a duty to warn of or make safe hazardous conditions that are: (1) concealed (from the licensee) (2) known to the land possessor in advance. ALL KNOWN TRAPS The land possessor must exercise reasonably care in the conduct of "active operations" on the property. The possessor has no duty to inspect or repair (although firefighters are police officers are typically licensees because they often enter property with implied consent, on public policy grounds, they are owed no duty of care regarding risks that are inherent in their job.)

Negligent Infliction of Emotional Distress ("business relationship cases")

Plaintiff can recover if highly foreseeable that careless performance by defendant will produce emotional distress Ex 1: Patient / medical laboratory -> patient has mysterious growth on their body, lab comes to wrong conclusion that they have serious cancer, but its wrong. Ex 2: Customer / Funeral parlor -> you are already fragile, if they mess it up that will cause a lot more distress. Ex 3: NOT customer dry cleaner -> they lose your favorite blouse. Wouldn't count.

Possessors of Land

Premises Liability -> applies to all possessors of land, not just owners. Establishes rules for duty to protect from dangerous conditions (not activities, that is RPO) Traditional Rule -> duty owed a plaintiff on the premises for dangerous conditions on the land depends on the plaintiff's status as (1) unknown trespasser, (2) known trespasser, (3) licensee, or (4) invitee

Punitive Damages

Punitive damages generally are not available in negligence cases. However, a plaintiff may recover punitive damages if the defendant's conduct is "wanton and willful," reckless, or malicious

Trespassing Children (attractive nuisance doctrine)

Reasonably prudent care under circumstances to protect from artificial hazards. If it is very unlikely kids will trespass, then you may need to do nothing. But if the condition is something that would draw children in, like a swing set, then you need to do something. If there is something that will draw them in but isn't the condition, then still may have to. To establish the doctrine's applicability, the plaintiff must show: (1) a dangerous ARTIFICIAL condition on the land that the owner is or should be aware of (2) the owner knows or should know that children might trespass on the land (3) the condition is likely to cause injury (it is dangerous because of the child's inability to appreciate the risk) (4) the expense of remedying the situation is slight compared with the magnitude of the risk.

private nuisance

Rule Statement: "Private nuisance is a substantial, unreasonable interference with another private individual's use or enjoyment of property that the other individual actually possesses or has a right of immediate possession." MBE questions about nuisance will often flag the correct choice with a key term from the definition of nuisance - for example, the defendant is liable because the activity created a "substantial" or "unreasonable" interference with the plaintiff's use of their land "spite cases" and "gross inconsideration cases"

Superseding Forces

Superseding forces are unforeseeable and break the chain of causation between the defendant's initial negligent act and the plaintiff's ultimate injury, thus relieving the defendant of liability.

Bailment Duties

The bailee's standard of care depends on who benefits from the bailment 1.) for sole benefit of the bailor -> lower standard of care. 2.) for the sole benefit of the bailee -> high standard of care 3.) mutual benefit -> (bailment for hire) there is ordinary care standard

Common Foreseeable intervening forces

The defendant is liable when their negligence caused a foreseeable reaction from an intervening force or created a foreseeable risk that an intervening force would harm the plaintiff. The following intervening forces that are normal responses or reactions to the situation created by the defendant's negligent act are almost always foreseeable: (1) Medical Malpractice (2) Negligence of rescuers (3) Protection or reaction forces to the defendant's conduct, including efforts to protect person or property (4) Disease or accident substantially caused by the original injury. Intervening forces that are not just a natural response or reaction to the situation created by the defendant's conduct may be foreseeable if the defendant's negligence increased the risk of harm from these forces. These intervening forces include (1) negligent acts of third persons, (2) crimes and intentional torts of third persons, and (3) acts of God. For example, if a valet leaves the keys in a car, and a thief steals the car, the valet may be liable because the thief's conduct may be considered a foreseeable intervening force.

Negligent Infliction of Emotional Distress ("Near Miss" cases)

The duty to avoid negligent infliction of emotional distress may be breached when the defendant creates a foreseeable risk of physical injury to the plaintiff. (a) the plaintiff must be within the "zone of danger" (b) the plaintiff must suffer physical symptoms from the distress Emotion is fear here

Property Damage

The measure of damage is the reasonable cost of repair or, if the property is totally or nearly destroyed, its fair market value at the time of the accident. Emotional distress damages generally cannot be recovered for negligent harm to property. Under this last stated rule, a person cannot recover for emotional distress if any other party negligently injures or kills their pet.

Duty to Mitigate

The plaintiff has a duty to take reasonable steps to mitigate damages (for example, seek appropriate treatment)

Personal Injury Damages

The plaintiff is to be compensated for all their damages (past, present, and prospective), both economic damages and noneconomic damages A plaintiff suffering physical injury may also recover damages for any resulting emotional distress.

Assumption of Risk

The plaintiff may be denied recovery if they assumed the risk of any damage caused by the defendant act. The plaintiff must have: 1.) known of the risk and 2.) voluntarily proceeded in the face of the risk

Transferred intent

The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead (1) commits a different tort against that person (2) commits the same tort as intended but against a different person, or (3) commits a different tort against a different person BUT-> only applies if both the tort intended and the tort that results are one of the following: "ABFTT" (1) assault (2) battery (3) false imprisonment (4) trespass to land (5) trespass to chattels

Firefighters & Police Offices and premises liability ("Firefighter's Rule")

They are there with implied consent but are not in the four categories They are owed zero duty of care for risks inherent to the job

unascertainable causes approach

This tests applies when there are multiple negligent parties, but only one of their negligence is the cause of the injury, but it is not known which one actually caused the injury (Summers v Tice where both negligently started fires) The burden of proof shifts to the defendants, and each must show that his negligence is not the actual cause

unreasonable interference

To establish unreasonable interference, required for nuisances based on intent or negligence, the severity of the inflicted injury must outweigh the utility of the defendant's conduct. In balancing these respective interests, courts take into account that every person is entitled to use their own land in a reasonable way, considering the neighborhood, land values, and existence of any alternative courses of conduct open to the defendant.

Duty of Care for Professionals

Typically a malpractice claims (on test usually medical professional) Standard: A professional is required to possess and exercise the knowledge and skill of an ordinary member of that profession (in good standing). "same care as average member of profession providing similar professional services" (national standard of care is used, meaning rural doctors and New York doctors should have same standard.) difference between the normal standard is reasonable vs average "Average" not "reasonable" (a) compare to real world, not imaginary (b) "empirical" standard (objective, fact based / research based standard of care) other ways of stating the duty (1) duty to conform their practice to the standards of their colleagues (2) custom of profession sets standard (that what is customarily done must be done in this case) P -> will almost always have to have an expert witness to educate jury on professional custom

Effect of Violation or compliance (of statutory duty of care)

Under the majority view, an unexcused statutory violation is negligence per se; in other words, it establishes the first two requirements in the prima face case - a conclusive presumption of duty and breach of duty BUT, compliance does not establish due care

Self-Defense (Torts)

When a person reasonably believes that she is being or is about to be attacked, she may use such force as is reasonably necessary to protect against injury. (a) when is it available -> Timing (1) majority rule is no duty to retreat. Modern trend imposes a duty to retreat before using deadly force if this can be done safely, unless the actor is in their home (2) not available if to the initial aggressor unless the other party responds to the aggressor's nondeadly force by using deadly force (3) self defense may extend to third party injuries (caused while the actor was defending themselves). An actor might be liable to a third person if they deliberately injured the third person in trying to protect themself (b) is mistake allowed -> "reasonable accuracy" a reasonable mistake as to the existence of danger is allowed (c) how much force may be used? -> one may use only that force that reasonable appears to be necessary to prevent harm (including deadly force). if more force than is reasonably necessary is used, the defense is lost

Causation in Bystander Cases (IIED)

When the defendant's conduct is directed at a third person, and the plaintiff suffers severe emotional distress because of it, the plaintiff may recover by showing either the prima facie case elements of emotional distress or that (1) they were present when the injury occurred; (2) the distress resulted in bodily harm or the plaintiff is a close relative of the third persons; and (3) the defendant knew these facts

Custom or Usage

When the standard of care is "reasonable prudence," evidence of the custom or usage of others may be used to establish how a reasonable person should have behaved under the circumstance. However, this evidence is not conclusive on the question of whether certain conduct amounted to negligence. For example, although certain behavior is custom in an industry, a court may find the entire industry is acting negligently

Effect of Res Ipsa Loquitur

Where res ipsa loquitur is established, the plaintiff has made a prima facie case and no directed verdict may be given for the defendant. The plaintiff can still lose, however, if the inference of negligence is rejected by the trier of fact.

Merged Causes - Substantial Factor Test

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, the defendant's conduct is the cause in fact if it was a substantial factor in causing the injury. some courts refer to this as one involving "multiple sufficient causes" If breach would have been able to cause the entire harm if had been the only breach, it's a substantial factor

Exception to RPO for Superior Skill or Knowledge

While the reasonably prudent person standard sets a minimum level of care, a defendant who has knowledge or experience superior to that of an average person is required to exercise that experience

Prenatal Injuries

a duty of care is owed to a viable fetus. In cases of failure to diagnoses 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" actions for any additional medical expenses and for pain and suffering from labor. Ordinary child-rearing expenses, however, cannot be recovered.

Respondeat Superior Doctrine

an employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occurring within the scope of the employment relationship (a) frolic vs detour -> (1) detour-> an employee making a minor deviation from their employer's business for their own purposes is still acting within the scope of employment. (2) frolic -> if the deviation in time or geographic area is substantial, the employer is not liable (b) intentional torts -> it is usually held that intentional tortious conduct by employee is not within the scope of employment except (1) the employee is furthering the business of the employer (2) force is authorized in the employment (3) friction is generated by employment, for example bill collector liability for own negligence -> employers may be liable for their own negligence by negligently selecting or supervising their employees, but that is not vicarious, that is direct

Hypersensitivity of Plaintiff is ignored

assume plaintiff is a reasonable Example: "D taps P on the shoulder and asks, ' do you know where the restroom is located? P has a phobia of being tapped on the shoulder. P has a panic attack and sues D for battery. Will p recover in a lawsuit against D for the claim of battery? No, hypersensitivity ignored, normal person wouldn't freak out.

Effect of Contributory Negligence

contributory negligence completely barred the plaintiff's right to recovery at common law New rule: most jurisdictions favor a comparative negligence system (reduces the recovery by % of fault attributed to plaintiff)

Contributory negligence as defense to defendant's violation of a statute

contributory negligence is a defense to negligence proved by negligence per se unless the statute was designed to protect the class of plaintiffs from their incapacity and lack of judgment (for example, a child injured after darting into the street in a school zone and getting hit by speeding car of the defendant)

design defects

design defects -> when all products of a line are the same but have dangerous propensities (risks of product > outweigh utility of design) Liability -> manufacturers will not be liable for some dangerous products (knives for example) if the danger is apparent and there is no safer way to make the product. Plaintiff must show: "feasible alternative test" (1) would have been safer (2) alternative was practical (wouldn't defeat the point of the product) (3) was economically feasible -> would be about the same expense, or maybe slightly more Gov't Safety Standards a product's noncompliance with government safety standards establishes that it is defective, while compliance with safety standards is evidence - but not conclusive - that the product is not defective

Partners and Joint Venturers - Vicarious Liability

each member of a partnership or joint venture is vicariously liable for the tortious conduct of another member committed in the scope and course of the affairs of the partnership or joint venture

Comparative negligence

in comparative negligence states, the plaintiff's contributory negligence is not a complete bar to recovery. Rather, the trier of fact weighs the plaintiff's negligence and reduces damages accordingly Majority Rule: Partial Comparative negligence -> bars plaintiff's recovery if their negligence was more than the defendant's (or at least as serious in some states) if more than one defendant has contributed to the plaintiff's injury, the plaintiff's negligence will be compared with the total negligence of all the defendant's combined. Pure comparative negligence -> doesn't matter how much P contributed, recover for the non-contributory part (even though this is minority, apply it on MBE Unless it says not to)

Substantial Interference (nuisance)

interference that is offensive, inconvenient, or annoying to the average person in the community; not substantial if it is merely the result of plaintiff's hypersensitivity or specialized use of his own property

Last Clear Chance - An exception to Contributory negligence

last clear chance permits a plaintiff to recover despite their contributory negligence. DOES NOT APPLY IN COMPARATIVE NEGLIGENCE JXs Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence (essentially the plaintiffs' rebuttal to the defense of contributory negligence) (1) helpless peril -> in many states, if the plaintiff is in "helpless peril," the defendant will be liable if they knew or should have known of the plaintiff's predicament (2) inattentive peril -> in "inattentive peril situations" (that is, where the plaintiff could have extricated themselves if attentive), the defendant must have actually known of the plaintiff's predicament (3) prior negligence cases -> for the last clear chance doctrine to apply, the defendant must have been able, but failed, to avoid harming the plaintiff at the time of the accident. If the defendant's only negligence occurred earlier, the doctrine will not apply.

Duty to Unknown trespassers (common law)

no duty of care (because they are an unforeseeable victim) someone who comes on the land without permission of the possessor and the possessor doesn't know that they are there.

Nonrecoverable items

nonrecoverable items include (1) interest from the date of damage in a personal injury action (sometimes called "pre-judgement interest") and (2) attorney's fees

No Incapacity Defenses (intentional torts)

only applies to intentional torts (1) children (2) insanity (3) developmentally disabled (4) drugs or alcohol none of those going to get you out of it

Plaintiff was making a foreseeable use

plaintiff must have been making a foreseeable use of the product at the time of the injury. A defendant will not be held liable for dangers not foreseeable at the time of marketing NOTE: foreseeable use =/= intended use (1) misuse of product may be foreseeable (for example, standing on chair to reach book on top shelf)

Exception to RPO for Physical Characteristics where relevant

the "reasonably prudent person" is considered to have the same physical characteristics as the defendant IF those physical characteristics are relevant to the claim (but remember, one is expected to know one's physical abilities and to exercise the care of a person with such knowledge - for example, a blind person should act as a reasonably prudent person who cannot see and not attempt to, for instance, drive a car)

Causation (basic premise)

the result must have been legally caused by the defendant's act or something set in motion by the defendant. Causation is satisfied if the defendant's conduct was a substantial factor in bringing about the injury

Express Assumption of Risk

the risk may be assumed by an express agreement

Elements for Strict Liability for Products

to find liability under a strict liability theory, the plaintiff must show: (1) the defendant is a merchant (commercial supplier of the product) (2) the product is defective (3) the product was not substantially altered since leaving the defendant's control (there is a presumption that product moved in ordinary channels of distribution has no alteration) (4) the plaintiff was making a foreseeable use of the product at the time of the injury