Barbri CMR Torts

3.1 TRESPASS TO LAND

The key testable elements for trespass to land are: • Physical invasion • Of the plaintiff's real property

14 NUISANCE

A nuisance is an invasion of property rights by tortious conduct. There are two types of nuisance: private and public.

16.1.6 Fault on Defendant's Part

A majority of states require a showing of fault on the part of the defendant. In addition, there are constitutional limitations depending on the plaintiff's status. a. Public Official or Figure Must Prove Actual Malice Under the New York Times v. Sullivan rule, actual malice must be proved in defamation cases brought by public officials and public figures. z What Constitutes a Public Figure? A person becomes a "public figure" by achieving perva- sive fame or notoriety or by voluntarily assuming a central role in a particular public controversy. z Definition of Actual Malice Actual malice (as defined by New York Times v. Sullivan) is: • Knowledge that the statement was false OR • Reckless disregard as to whether it was false This is a subjective test. The defendant's spite or ill will is not enough to constitute malice. Deliberately altering a quotation may constitute malice if the alteration causes a material change in the meaning conveyed by the quota- tion. b. Private Persons Must Prove Negligence If Matter of Public Concern Under Gertz v. Welch, when a private person is the plain- tiff, only negligence regarding the falsity must be proved if the statement involves a matter of "public concern." If the statement is not a matter of public concern, constitutional restrictions do not apply (but note that many states require a showing of negligence as a matter of state law). If the defen- dant is negligent, only "actual injury" damages are recover- able. However, if actual malice is found, damages may be presumed, and punitive damages allowed. z What Constitutes Actual Injury? Actual injury is not limited to economic damages. It may include damages for impairment to reputation and personal humiliation as long as the plaintiff presents evidence of such damages (in other words, no presumed damages). z What Is a Matter of Public Concern? To determine whether the defamatory statement involves a matter of public concern or private concern, the courts will look at the content, form, and context of the publication. CMR Exam Tip Note that the status of the plaintiff (public figure or private person) is relevant only for the degree of fault required.

10.1 "BUT FOR" TEST

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 defen- dant can refute this by showing that the plaintiff would have still been injured "even if" the act or omission did not occur. EXAMPLE P falls off of D's boat and is pulled under by a heavy undertow. D failed to have a life preserver ring on board. This failure is not a factual cause of P's injuries because "even if" D had a life preserver on board P still would have been pulled under by the undertow.

a. Only Merchants Can Be Held Liable

Any commercial supplier can be held liable. z Does Not Extend to Casual Sellers Casual sellers will not be held strictly liable. z Does Not Extend to Services Strict products liability applies only to products. Even when a product is provided incident to a service (for example, blood during an operation), there is no strict liability. The plaintiff may, however, sue in negligence. z Includes Commercial Lessors Most states include commercial lessors. In other words, those who rent rather than sell products also can be held strictly liable. z Includes Entire Distribution Chain Commercial suppliers include manufacturers, whole- salers, and retailers. Privity is not required—users, consumers, and bystanders can sue. CMR Exam Tip In virtually all products liability actions, the fact that there was no contractual privity between the plaintiff and defendant will not prevent plaintiff from recovering. Nevertheless, it is still a favorite wrong choice in products liability exam questions based on negli- gence or strict liability theories. Remember that any foresee- able plaintiff, including a bystander, can sue any commercial supplier in the chain of distribution regardless of the ab- sence of a contractual relationship between them.

6.3.2 Known Trespassers

As to discovered or anticipated trespassers, the land possessor must warn of or make safe any conditions that are: • Artificial • Highly dangerous (involving risk of death or serious bodi- ly harm) • Concealed • Known to the land possessor in advance known man made death traps on the land

2.2.2 Knowledge of Act

For apprehension to be shown, the plaintiff must have been aware of the threat from the defendant's act, although the plaintiff need not be aware of the defendant's identity.

2.2.3 Apparent Ability Sufficient

If the defendant has the apparent ability to commit a battery, this will be enough to cause a reasonable apprehension.

11 PROXIMATE CAUSATION

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. Thus, the doctrine of proximate causation is a limitation of liability and deals with liability or nonliability for unforeseeable or unusual conse- quences of one's acts.

13.4 AFFIRMATIVE DEFENSES

In contributory negligence states, contributory negligence is no defense if the plaintiff has failed to realize the danger or guard against it. It is a defense if the plaintiff knew of the danger and their unreasonable conduct was the very cause of the harm from the wild animal or abnormally dangerous activity or defective product. Assumption of the risk is a good defense to strict liability. Many comparative negligence states apply their comparative negligence rules to strict liability cases.

2.2.1 Apprehension Must Be Reasonable

The apprehension of harmful or offensive contact must be reasonable. Courts generally will not protect a plaintiff against exaggerated fears of contact. a. Fear Not Required Apprehension shouldn't be confused with fear or intimida- tion (for example, a weakling can cause a bully to apprehend offensive contact for purposes of assault).

2.3.3 Awareness of Confinement

The plaintiff must know of the confinement or be harmed by it.

15.3 LOSS OF CONSORTIUM AND TORTIOUS INTERFERENCES WITH FAMILY RELATIONSHIPS

loss of household services -loss of society/companionship -loss of sex 15.3.1 Between Spouses Either spouse may bring an action for indirect interference with consortium and services caused by the defendant's intentional or negligent tortious conduct against the other spouse. 15.3.2 Parent-Child A parent may maintain an action for loss of a child's services and consortium as a result of the defendant's tortious conduct, whether intentional or negligent. A child, however, has no action in most states against one who tortiously injures their parent. 15.3.3 Nature of Action Actions for interference with family relationships are deriva- tive. Hence, any defense that would reduce or bar recovery by the injured family member also reduces or bars recovery for interference with the family relationship.

16.3 MISREPRESENTATION

16.3.1 Intentional Misrepresentation (Fraud, Deceit) To establish a prima facie case for intentional misrepresenta- tion requires: • Misrepresentation of a material past or present fact • Scienter (when the defendant made the statement, they knew or believed it was false or that there was no basis for the statement) • Intent to induce the plaintiff to act or refrain from acting in reliance upon the misrepresentation • Causation (actual reliance) • Justifiable reliance • Damages (the plaintiff must suffer actual pecuniary loss) There are no defenses to intentional misrepresentation. a. No General Duty to Disclose There is no general duty to disclose a material fact, unless the defendant (1) stands in a fiduciary relationship to the plaintiff; (2) is selling real property and knows the plaintiff is unaware of, and cannot reasonably discover, material infor- mation about the transaction; or (3) has spoken and their utterance deceives the plaintiff. Physical concealment of a material fact may also constitute a misrepresentation. b. Third-Party Reliance If a third party relies on the defendant's representation, the defendant will be liable if they could reasonably foresee that the third party would so rely. c. Reliance on Opinion Reliance generally is justifiable only on representations of fact (and the plaintiff is under no obligation to investigate the fact). Reliance on opinion is justifiable only if the defendant offering the opinion has a superior knowledge of the subject matter.

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS-8.2 BYSTANDER CASES

8.2 BYSTANDER CASES 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: • The plaintiff and the person injured by the defendant are closely related • The plaintiff was present at the scene of the injury and personally observed or perceived the event Most states drop the requirement of physical symptoms in this situation. VIRGINIA DISTINCTION Virginia retains the traditional rule that a bystander out- side the "zone of danger" cannot recover damages for distress from seeing the defendant negligently injure another.

7.1 STATUTORY STANDARDS OF CARE

A clearly stated specific duty imposed by a statute providing for criminal penalties (including fines for regulatory offenses and ordinances, such as for speeding) may replace the more general common law duty of due care if: • The plaintiff is within the protected class • The statute was designed to prevent the type of harm suffered by the plaintiff

16.1.1 Defamatory Statement

A defamatory statement is one tending to adversely affect one's reputation. A statement of opinion is actionable only if it appears to be based on specific facts, and an express allegation of those facts would be defamatory. Name-calling is insufficient. a. Inducement and Innuendo If the statement is not defamatory on its face, the plaintiff may plead additional facts as "inducement" to establish defamatory meaning by "innuendo." b. Living Person Requirement Any living person may be defamed. Defamation of a deceased person is not actionable. In a limited sense, a corporation, unincorporated association, or partnership may be defamed (for example, by remarks as to its financial condi- tion, honesty, integrity, etc.).

Proximate Cause-11.1 GENERAL RULE—SCOPE OF FORESEEABLE RISK

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. CMR Exam Tip Questions raising proximate cause issues will not require you to make a judgment call on foresee- ability in a close case. Often the call of the ques- tion will be whether one or both parties are entitled to summary judgment—which should be denied if there is any issue of foreseeability for the jury. In other cases, the facts in the question will be so clear-cut that common sense will tell you immediately whether the harm that occurred was foreseeable.

SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT-6.2.1 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. informed consent-secondary duty-

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

CMR Exam Tip Keep in mind that actions for infliction of emotional distress are not the only means of recovering damages for emotional distress. If physical injury has been caused by commission of a tort, the plaintiff can "tack on" damages for emotional distress as a "parasitic" element of their physical injury damages, without the need to consider the elements of the emotional distress torts.

2.1.1 Harmful or Offensive Contact

Contact is harmful if it causes actual injury, pain, or disfigure- ment. Contact is offensive if it would be considered offensive to a reasonable person. CMR Exam Tip Contact is considered offensive only if it hasn't been permitted or consented to. However, consent will be implied for the ordinary contacts of every- day life (for example, minor bumping on a crowded bus). a. 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).

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

• An act by the defendant • Intent by the defendant • Causation of the result to the plaintiff from the defen- dant's act 1.1 ACT BY DEFENDANT The act required is a volitional movement by the defendant. 1.2 INTENT The intent that is relevant for purposes of intentional torts is the intent to bring about the forbidden consequences that are the basis of the tort. The defendant does not need to intend the specific injury that results.

16.1.8 Mitigating Factors

Mitigating factors (for example, no malice, retraction, anger of the speaker provoked by the plaintiff) may be considered by the jury on the damages issue; they are not defenses to liability.

3.1.1 Physical Invasion

3.1.1 Physical Invasion The invasion may be by a person or object (for example, throwing a baseball onto the plaintiff's land is a trespass). If intangible matter (for example, vibrations or odor) enters, the plaintiff may have a case for nuisance, but not for trespass since those things are not considered physical.

5.1 DUTY OF CARE OWED ONLY TO FORESEEABLE PLAINTIFFS

A duty of care is owed only to foreseeable plaintiffs—the class of persons who were foreseeably endangered by the defendant's negligent conduct. 5.1.1 Rescuers A rescuer is a foreseeable plaintiff when the defendant negligently put themselves or a third person in peril (danger invites rescue). a. Firefighter's Rule Firefighters and police officers are barred by the "firefighter's rule" from recovering for injuries caused by the inherent risks of their jobs. 5.1.2 Prenatal Injuries A duty of care is owed to a viable fetus. In cases of failure to diagnose a congenital defect or properly perform a contra- ceptive 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 recov- ered. 5.1.3 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.

4.3 NECESSITY

A person may interfere with the real or personal property of another when it is reasonably and apparently necessary in an emergency to avoid injury from a natural or other force and when the threatened injury is substantially more serious than the invasion that is undertaken to avert it. There are two types of necessity: 4.3.1 Public Necessity A defendant can raise public necessity as a defense if they acted to avert an "imminent public disaster." 4.3.2 Private Necessity Private necessity can be a defense when the action was to prevent serious harm to a limited number of people. Under private necessity, the actor must pay for any injury they cause (unless the act was to benefit the property owner). CMR Exam Tip Necessity is a defense only to property torts.

Self Defense -b. Is Mistake Allowed?

A reasonable mistake as to the existence of the danger is allowed.

3.3.1 Acts of Conversion

Acts of conversion include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel.

3.2.3 Actual Damages Required

Actual damages—not necessarily to the chattel, but at least to a possessory right—are required.

5.2 BASIC STANDARD OF CARE—THE REASONABLY PRUDENT PERSON

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). EXAMPLE 5.2.1 Exception 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. 5.2.2 Exception 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).

4.1.3 Implied Consent

Apparent consent is that which a reasonable person would infer from custom and usage or the plaintiff's conduct, for example, normal contacts inherent in body-contact sports, ordinary incidental contact, etc. Consent implied by law arises when action is necessary to save a person's life or some other important interest in person or property.

3.3.2 Intent Required

As with trespass to chattels, mistake as to ownership is no defense; the only intent required is the intent to do the act that interferes with the plaintiff's right of possession.

4.2.4 Reentry onto Land

At common law, one could use force to reenter land only when an intruder came into possession tortiously, such as by a trespass. Under modern law, there are summary proce- dures such as ejectment for recovering possession of real property. Hence, resort to self-help is no longer allowed.

4.1.4 Exceeding Consent Given

If the defendant exceeds the scope of consent by committing a more intrusive invasion or by invading a different interest than the one the plaintiff referenced, they may be liable.

4.1.1 Capacity Required

Individuals without capacity are deemed incapable of consent, for example, drunken persons, and very young children. Persons with limited capacity, such as older children and persons with mild intellectual disabilities, can consent, but only to things within the scope of their understanding. CMR Exam Tip This requirement of capacity differs from the rule for the intent element of intentional torts, where incapacity is no defense. Everyone (even a young child) has the capacity to commit a tort, but not everyone has the capacity to consent to a tort.

3.2.2 Intent Required

Intent to trespass isn't required; intent to do the act of inter- ference is all that is needed. The defendant's mistaken belief that they own the chattel is no defense.

Self Defense-c. How Much Force May Be Used?

One may use only that force that reasonably appears to be necessary to prevent the harm (including deadly force). If more force than is reasonably necessary is used, the defense is lost.

3.3.4 Subject Matter of Conversion

Only tangible personal property and intangibles that have been reduced to physical form (for example, a promissory note) are subject to conversion.

3.1.2 Real Property

Real property includes not only the surface, but also airspace and subterranean space for a reasonable distance. Note that the trespass claim belongs to the person with the right to possess the property, and not necessarily the owner, meaning that if you enter a rented apartment without permis- sion, the tenant has a claim against you, not the landlord.

4.2.5 Recapture of Chattels

The basic rule is the same as that for reentry of land at common law: When another's possession began lawfully (for example, a conditional sale), one may use only peaceful means to recover the chattel. Reasonable force may be used to recapture a chattel only when in hot pursuit of one who has obtained possession wrongfully, for example, by theft.

4.1.2 Express (Actual) Consent

The defendant is not liable if the plaintiff expressly consents to the defendant's conduct. Exceptions: (1) mistake will undo express consent if the defendant knew of and took advan- tage of the mistake; (2) consent induced by fraud will be invalidated if it goes to an essential matter, but not a collat- eral matter; and (3) consent obtained by duress will be inval- idated unless the duress is only threats of future action or future economic deprivation.

3.1.3 Intent

The defendant need intend only to enter onto that particular piece of land. The defendant need not know that the land belonged to another. EXAMPLE D is hiking through a state park when he comes to a fork in the trail and bears right. After a mile, he has left the state park and is now on private property owned by P. There was no fence, gate, sign, or natural boundary marker to let him know that he had left the park. D will still be held liable to P for a trespass to land.

5 THE GENERAL DUTY OF CARE IN NEGLIGENCE

The elements of a prima facie case of negligence are: • A duty on the part of the defendant to conform to a specific standard of conduct for protection of the plaintiff against an unreasonable risk of injury • A breach of that duty by the defendant • The breach is the actual and proximate cause of the plaintiff's injury • Damages A duty of care is owed to all foreseeable plaintiffs. If the defendant's conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff. The extent of the duty is determined by the applicable standard of care. Therefore, when confronted with a negligence question, you should always ask: • To whom do you owe a duty? • What is the applicable standard of care?

3.2.1 Two Types of Interference

The interference may either be an intermeddling (that is, directly damaging the chattel) or a dispossession (that is, depriving the plaintiff of their lawful right of possession of the chattel).

3.2 TRESPASS TO CHATTELS

The key testable element for trespass to chattels is: • Act by the defendant that interferes with the plaintiff's right of possession in a chattel

3.3 CONVERSION

The key testable elements for conversion are: • Act by the defendant that interferes with the plaintiff's right of possession in a chattel •Interference is serious enough in nature or consequenc- es to warrant that the defendant pay the chattel's full value

3.3.3 Seriousness of Interference

The longer the withholding period and the more extensive the use, the more likely it is to be conversion. A less serious interference is trespass to chattels.

3.1.4 Damages Not Required

The plaintiff can recover without showing actual injury to the land.

3.3.5 Remedies

The plaintiff may recover damages (fair market value at the time of conversion) or possession (replevin).

4.1 CONSENT

The plaintiff's consent to the defendant's conduct is a defense, but the majority view is that one cannot consent to a criminal act. Any consent fact pattern raises two questions: • Was there a valid consent? • Did the defendant stay within the boundaries of the con- sent?

4.2.1 Self-Defense

When a person reasonably believes that they are being or are about to be attacked, they may use such force as is reasonably necessary to protect against injury. a. When Is Defense Available? The majority rule is that there is no duty to retreat. The modern trend imposes a duty to retreat before using deadly TORTS NOTES 15 force if this can be done safely, unless the actor is in their home. Self-defense is not available to the initial aggressor unless the other party responds to the aggressor's nondeadly force by using deadly force. 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 themselves. EXAMPLE J attacked D, and to defend himself D threw a rock at J, but missed, hitting P instead. If P sues D for battery relying on trans- ferred intent, D will have a valid self-defense claim to avoid liability.

4.2 PROTECTIVE PRIVILEGES

When a question involves the defense of self, others, or property, ask the following three questions: • Is the privilege available? These privileges apply only for preventing the commission of a tort. Already committed torts do not qualify. • Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed? • Was a proper amount of force used? CMR Exam Tip Keep your parties clear. In questions involving these defenses, the conduct of the defendant was prompted by the commission or apparent commis- sion of a tort by the plaintiff. That tort is not at issue, howev- er; the issue is whether the defendant's response itself constituted a tort against the plaintiff (usually battery, tres- pass to land, or trespass to chattels) or instead was privi- leged by one of these defenses.

2.4.4 Causation in Bystander Cases

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 person; and (3) the defendant knew these facts. CMR Exam Tip Intentional infliction of emotional distress is a fallback tort position. Thus, if another alternative in your exam question is a tort that will also allow the plaintiff to recover,

4.2.2 Defense of Others

a. When Is Defense Available? One may use force to defend another when they reason- ably 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 themselves 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.

4.2.3 Defense of Property

a. When Is Defense 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. The defense 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 progress if the defendant is in the act of fleeing. CMR Exam Tip Remember that this defense is not available against one with a privilege. Whenever an actor has a privilege to enter onto the land of another because of necessity, recapture of chattels, etc., that privi- lege will supersede the privilege of the land possessor to defend their property. b. Is Mistake Allowed? A reasonable mistake is allowed as to whether an intrusion has occurred or whether a request to desist is required. A mistake is not allowed as to whether the entrant has a privi- lege (for example, necessity) that supersedes the defense of property right, unless the entrant conducts the entry so as to lead the defendant to reasonably believe it is not privileged (such as by refusing to say what the necessity is). c. How Much Force May Be Used? Reasonable force may be used. However, one may not use force causing death or serious bodily harm unless the invasion of property also entails a serious threat of bodily harm. The same principle makes it impermissible to set deadly mechanical devices or traps (such as spring guns) to protect property. CMR Exam Tip There is a common misperception that deadly force may be used to protect one's home. This is not strictly true. Many of the "home defense" cases are really self-defense cases. Thus, deadly force can only be used when a person, not just property, is threat- ened. 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: • There must be a reasonable belief as to the fact of theft • The detention must be conducted in a reasonable man- ner and only nondeadly force can be used • The detention must be only for a reasonable period of time and only for the purpose of making an investigation

13.3 PRODUCTS LIABILITY

Products liability refers to the liability of a supplier of a defec- tive product to someone injured by the product. 13.3.1 Theories of Liability There are five theories of liability that a plaintiff may use: • Intent • Negligence • Implied warranties of merchantability and fitness for a particular purpose • Representation theories (express warranty and misrepre- sentation) • Strict liability CMR Exam Tip If the question does not indicate what theory of liability the plaintiff is using, apply a strict liability theory because that is the easiest to prove. VIRGINIA DISTINCTION Virginia courts have not applied strict liability in products liability actions. However, Virginia allows a broad range of plaintiffs to sue under a breach of warranty theory.

16.2.3 Publication of Facts Placing Plaintiff in False Light

"False light" exists where one attributes to the plaintiff views they do not hold or actions they did not take. The false light must be something highly offensive to a reasonable person under the circumstances. For liability to attach, the defendant must circulate the statement to the public at large. Sharing the statement with only one or a few persons will not be suffi- cient to trigger liability. a. First Amendment Limitation If the matter is of public interest, actual malice on the defen- dant's part must be proved.

15.2 MULTIPLE DEFENDANT ISSUES

15.2.1 Joint and Several Liability Under the traditional common law rule, when two or more negligent acts combine to proximately cause an indivisible injury, each negligent actor will be jointly and severally liable (that is, liable to the plaintiff for the entire damage incurred). If the injury is divisible, each defendant is liable only for the identifiable portion. a. Defendants Acting in Concert When two or more defendants act in concert and injure the plaintiff, each is jointly and severally liable for the entire injury. This is so even if the injury is divisible. TORTS NOTES 69 b. Statutory Limitations Many states have abolished joint liability in cases based on fault either (1) for those defendants judged to be less at fault than the plaintiff, or (2) for all defendants regarding noneco- nomic damages. In these cases, liability will be proportional to the defendant's fault.

Privacy Defenses

16.2.5 Defenses Some defenses to the right of privacy actions are consent and the defamation privilege defenses. Truth generally is not a good defense; nor is inadvertence, good faith, or lack of malice. newsworthy exception Appropriation not limited to celebrities

2.4.3 Actual Damages Required

Actual damages (severe emotional distress), not nominal damages, are required. Proof of physical injury generally isn't required. The more outrageous the conduct, the less proof of damages is required. CMR Exam Tip Intentional infliction of emotional distress is the only intentional tort to the person that requires damages.

13.1 LIABILITY FOR ANIMALS (strict liability?)

13.1.1 Domesticated Animals An owner is not strictly liable for injuries caused by domestic animals (including farm animals) unless they have knowledge of that particular animal's dangerous propensities that are not common to the species. Injury caused by the normally dangerous characteristics of domestic animals (for example, bulls or honeybees) does not create strict liability. EXAMPLE D owns a pet dog Fido. Last month Fido bit a friend who came over to D's house for dinner. D is not strictly liable to the friend. However, last week, Fido bit a pedestrian while out for a walk. D will be strictly liable to the pedestrian because the first bite gave D knowledge that Fido has dangerous propensities. CMR Exam Tip Don't forget to consider that a landowner may be liable on intentional tort grounds for injuries inflicted by vicious watchdogs. a. Trespassing Animals An owner is strictly liable for reasonably foreseeable damage done by a trespass of his animals. 13.1.2 Wild Animals An owner is strictly liable to licensees and invitees for injuries caused by wild animals (even those kept as pets). a. Strict Liability Not Available to Trespassers Strict liability will generally not be imposed in favor of trespassers. To recover for their injuries from a wild animal (or abnormally dangerous domestic animal) a trespasser must prove the owner's negligence.

6.3.3 Licensees

A licensee is one who enters onto the land with the posses- sor's permission for their own purpose or business, rather than for the possessor's benefit. Social guests are consid- ered licensees. (Although firefighters and 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.) As to licensees, the land possessor has a duty to warn of or make safe hazardous conditions that are: • Concealed • Known to the land possessor in advance The land possessor must exercise reasonable care in the conduct of "active operations" on the property. The possessor has no duty to inspect or repair.

15.1.6 Parent for Child

A parent is not vicariously liable for the tortious conduct of their child at common law. Note, however, that most states, by statute, make parents liable for the willful and intentional torts of their minor children up to a certain dollar amount (for example, $10,000). VIRGINIA DISTINCTION In Virginia, by statute, a parent is liable for willful or ma- licious damage done by their child to public or private property up to $2,500. a. Child Acting as Agent for Parents Courts may impose vicarious liability if the child committed a tort while acting as the agent for the parents. b. Parent Liable for Own Negligence The parent may be held liable for their own negligence in allowing the child to do something, for example, use a dangerous object without proper instruction. Furthermore, if the parent is apprised of the child's conduct on past occasions showing a tendency to injure another's person or property, they may be liable for not using due care in exercising control to mitigate such conduct, for example, by allowing the child to play with other children that they have a history of attacking.

16.3.2 Negligent Misrepresentation

A prima facie case for negligent misrepresentation requires: • Misrepresentation by the defendant in a business or professional capacity • Breach of duty toward a particular plaintiff • Causation • Justifiable reliance • Damages Generally, this action is confined to misrepresentations made in a commercial setting, and liability will attach only if reliance by the particular plaintiff could be contemplated (for example, for negligent misrepresentation, foreseeability that the statement will be communicated to a third party does not make the defendant liable to the third party).

15.1.1 Employer-Employee

An employer will be vicariously liable for tortious acts committed by their employee if the tortious acts occur within the scope of the employment relationship. This concept is also known as the "doctrine of respondeat superior." a. Frolic or Detour An employee making a minor deviation from their employ- er's business for their own purposes is still acting within the scope of employment. 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 employees is not within the scope of employment. Exceptions: • The employee is furthering the business of the employ- er, for example, removing customers from the premises because they are rowdy • Force is authorized in the employment, for example, a bouncer • Friction is generated by the employment, for example, bill collector c. Liability for Own Negligence TORTS NOTES 64 Employers may be liable for their own negligence by negli- gently selecting or supervising their employees. (This is not vicarious liability.)

2.3.1 Methods of Confinement or Restraint

Sufficient acts of restraint include: • Physical barriers • Physical force directed against the plaintiff, immediate family, or personal property (for example, confiscating the plaintiff's purse) • Direct threats of force • Indirect or implied threats of force • Failure to release the plaintiff when under a legal duty to do so (for example, a taxi driver refusing to let a customer out) • Invalid use of legal authority (for example, false arrest) Insufficient acts of restraint include: • Moral pressure • Future threats

SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT-children

Children are held to the standard of a child of like age, intel- ligence, and experience. This is a subjective test. A child under five is usually without the capacity to be negligent. Children engaged in potentially dangerous adult activities may be required to conform to an "adult" standard of care. VIRGINIA DISTINCTION In Virginia, a child below the age of 7 is deemed incapa- ble of being negligent. For children ages 7-14, there is a rebuttable presumption that a child cannot be negligent. hypothetical child of similar age experience and intelligence acting under similar circumstances if an adult activity, reasonably prudent person standard-most common-operating a motorized vehicle

15.2.3 Contribution and Indemnity

Contribution and indemnity are doctrines that determine how joint tortfeasors allocate between them the damages they must pay to a successful plaintiff. CMR Exam Tip Keep in mind that neither of these doctrines affects how much the plaintiff receives. Rather, they deal with claims by a defendant against other joint tortfeasors to determine how much of the total award each of them ultimately must pay. a. Contribution The rule of contribution allows a defendant who pays more than their share of damages under joint and several liability to have a claim against other jointly liable parties for the excess; in other words, it apportions responsibility among those at fault. z Methods of Apportionment — Comparative Contribution Most states have a comparative contribution system, whereby contribution is imposed in proportion to the relative fault of the various defendants. — Equal Shares In a minority of states, apportionment is in equal shares regardless of degrees of fault. z Contribution Tortfeasor Must Have Liability The contribution defendant must be originally liable to the plaintiff. If the contribution defendant has a defense that would bar liability (such as intra-family tort immunity), they are not liable for contribution. z Not Applicable to Intentional Torts Contribution is not allowed among intentional tortfea- sors. b. Indemnification Indemnification involves shifting the entire loss between or among tortfeasors. Indemnity is available in the following circumstances: • In vicarious liability situations • Under strict products liability for the non-manufacturer CMR Exam Tip To keep contribution and indemnity separate in your mind, recall that, for contribution to apply, generally both defendants must have a measur- able degree of culpability for the tort; on the other hand, indemnity usually applies when the paying defendant is much less responsible than the nonpaying defendant or is liable only vicariously because of their relationship with the nonpaying defendant. c. Comparative Contribution As noted above, most comparative negligence states have adopted a comparative contribution system where contribu- tion is in proportion to the relative fault of the various defen- dants. This approach also supplants indemnification rules based on identifiable differences in degree of fault.

P was sexually harassed by her manager at work. She managed to surreptitiously record some video of the episode on her cell phone. The next day she asked a co-worker for help, and she shared the video with him to show what had happened. Her co-worker helps her file a complaint with the city's civil rights unit. When management learned that the co-worker had gotten involved, they fired him, and the co-worker then decides to sue the company for retaliation. He retained D as his lawyer. He turns over to D the video that P had given him. The case received a lot of publicity and D gave some interviews about it on local TV. In one of those she showed P's video. P was very humiliated and emotionally upset when the video aired, and she has sued D for negligent infliction of emotional distress. Is she likely to win?

Court denied relief to plaintiff. No phyiscal injury to Paula, pure emotional distress. Not near miss nor bystander. Paula and deliah never had a business relationship.

13.2 ABNORMALLY DANGEROUS ACTIVITIES

Courts generally impose two requirements for finding an activity to be abnormally dangerous: • The activity must create a foreseeable risk of serious harm even when reasonable care is exercised by all actors • The activity is not a matter of common usage in the com- munity Common examples of abnormally dangerous activities include blasting or manufacturing explosives, storing or trans- porting dangerous chemicals or biological materials, and anything involving radiation or nuclear energy. As with negligence, the defendant's liability extends only to foreseeable plaintiffs. Also, the harm must result from the kind of danger to be anticipated from the dangerous activity (or animal) including harm caused by fleeing from the perceived danger. Strict liability does not apply when the injury is caused by something other than the dangerous aspect of the activity (for example, a dynamite truck suddenly blows a tire and hits a pedestrian but does not explode). CMR Exam Tip Questions testing on abnormally dangerous activi- ties will not require you to speculate as to whether the activity falls under this rule. Unless the activity is clearly abnormally dangerous like the ones listed above, or the question specifies that the jurisdiction considers the activity abnormally dangerous, you should not apply strict liability to the activity. CMR Exam Tip Exam questions testing on strict liability often include a statement in the facts or in an answer choice that the defendant exercised reasonable care. Remember that the exercise of reasonable care will not relieve the defendant of liability in a strict liability situation.

12.1 DAMAGES

Damage is an essential element of negligence; thus, damage will not be presumed (and nominal damages are not avail- able). 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 unforesee- able. This is also known as the "eggshell-skull" plaintiff rule.

15.1.3 Partners and Joint Venturers

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.

6.3.4 Invitees

Invitees enter onto the land in response to an invitation by the possessor of the land (meaning they enter for a purpose connected with the business of the land possessor or enter as members of the public for a purpose for which the land is held open to the public). 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 condi- tions that are: • Concealed • Known to the land possessor in advance or could have been discovered by a reasonable inspection all reasonably knowable traps on the land

2.3.4 What Is a Bounded Area?

For an area to be "bounded," freedom of movement must be limited in all directions. There must be no reasonable means of escape known to the plaintiff.

7.2 AFFIRMATIVE DUTIES TO ACT

Generally, one does not have a legal duty to act. There is no duty to rescue. EXAMPLE Some Olympic swimmers are walking by a lake and notice a child drowning. There is no duty for the swimmers to rescue the child. 7.2.1 Exception: Special Relationship Between Parties A special relationship between the parties (for example, parent-child) may create a duty to act. 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, places of public accommoda- tion have a duty to prevent injury to guests by third persons. 7.2.2 Exception: Peril Due to Own Conduct One has a duty to assist someone they have negligently or innocently placed in peril. 7.2.3 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. VIRGINIA DISTINCTION Virginia's Good Samaritan statute applies to all persons who provide aid in an emergency situation, not just medi- cal personnel. 7.2.4 Duty to Prevent Harm from Third Persons Generally, there is no duty to prevent a third person from injuring another. An affirmative duty may be imposed, however, if one has the actual ability and authority to control a person's actions, and knows or should know the person is likely to commit acts that would require exercise of this control.

12.4 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 (for example, if the plaintiff is 10% at fault, their damages are reduced by 10%). There are no rules governing the assignment of fault; the numbers are left to the discretion of the jury. A majority of states have adopted partial comparative negligence, which still bars the plain- tiff's recovery if their negligence was more serious than the defendant's negligence (or in some states at least as serious as the defendant's). If more than one defendant has contrib- uted to the plaintiff's injury, the plaintiff's negligence will be compared with the total negligence of all the defendants combined. States that have adopted pure comparative negli- gence allow recovery no matter how great plaintiff's negli- gence was. VIRGINIA DISTINCTION While Virginia retains traditional contributory negligence, whereby the plaintiff's contributory negligence is a com- plete bar to recovery, Virginia also recognizes the last clear chance doctrine to alleviate the harshness of this rule. In "helpless peril" cases, last clear chance applies when the defendant should have known of the plaintiff's peril. In "inattentive peril" cases, last clear chance applies when the defendant saw the plaintiff and realized, or should have realized, the plaintiff's peril. CMR Exam Tip On the MBE, assume that pure comparative negli- gence applies unless the question states other- wise.

15.1.2 Independent Contractor Situations

In general, the hiring party (the principal) will not be vicari- ously liable for the tortious acts of an independent contractor (the agent). There is an exception, however, for situations where a duty is simply nondelegable due to public policy considerations, for example, the duty of a business to keep its premises safe for customers. VIRGINIA DISTINCTION In Virginia, regular and routine maintenance, repair, and janitorial services are nondelegable as a landowner has a duty to maintain the premises in a reasonably safe con- dition. Thus a landowner could be held vicariously liable for an independent contractor's negligence in such situa- tions. However, a landowner will not be held vicariously liable for the negligence of the independent contractor in improvement projects when the contractor has full control over the part of the premises being renovated. a. Liability for Own Negligence The employer may be liable for their own negligence in selecting or supervising the independent contractor (for example, a hospital may be liable for contracting with an unqualified and incompetent health care provider who negli- gently treats the hospital's patient). (This is not vicarious liability.)

9.3 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: • The accident causing the injury is a type that would not normally occur unless someone was negligent • The negligence is probably attributable to the defen- dant (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 defen- dant. EXAMPLE A barrel of flour fell from a window in D's building, landing on P. P has no way of knowing the sequence of events that caused the barrel to fall. Despite lack of direct proof of breach, because barrels do not normally fall out of windows unless someone is negligent and because the defendant had control of the barrel, the plaintiff will be able to avoid dismissal and have his claim sent to the jury. 9.3.1 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 infer- ence of negligence is rejected by the trier of fact. CMR Exam Tip Questions testing on res ipsa loquitur often have the defendant making a motion for a directed verdict. These questions don't require you to memorize rules of civil procedure—all you need to remem- ber is the following: • Deny the defendant's motion for directed verdict if the plaintiff has established res ipsa loquitur or presented some other evidence of breach of duty (such as the de- fendant's violation of a statute) • Grant the defendant's motion if the plaintiff has failed to establish res ipsa loquitur and failed to present some other evidence of breach of duty Occasionally, the plaintiff may also move for a directed verdict. The plaintiff's motion should always be denied except in the rare case where the plaintiff has established negligence per se through violation of an applicable statute and there are no issues of proximate cause.

16.2.1 Appropriation of Plaintiff's Picture or Name

It is necessary to show unauthorized use of the plaintiff's picture or name for the defendant's commercial advantage. Liability is generally limited to advertisements or promotions of products or services. Mere economic benefit to the defen- dant (not in connection with promoting a product or service) by itself is not sufficient.

Last Clear Chance—An Exception to Contributory Negligence

Last clear chance permits a plaintiff to recover despite their contributory negligence. Under this rule, the person with the last clear chance to avoid an accident who fails to do so is liable for negligence. (Last clear chance is essentially the plaintiff's rebuttal to the defense of contributory negli- gence.) a. Helpless Peril In many states, if the plaintiff is in "helpless peril," the defen- dant will be liable if they knew or should have known of the plaintiff's predicament. b. Inattentive Peril In "inattentive peril" situations (that is, where the plaintiff could have extricated themselves if attentive), the defendant must actually have known of the plaintiff's predicament. c. 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. 12.2.5 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 plain- tiff 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.

6.3.5 Trespassing Children—Attractive Nuisance Doctrine

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 artificial conditions on their property. To establish the doctrine's applicability, the plaintiff must show: • A dangerous condition on the land that the owner is or should be aware of • The owner knows or should know that children might trespass on the land • The condition is likely to cause injury (it is dangerous be- cause of the child's inability to appreciate the risk) • The expense of remedying the situation is slight com- pared with the magnitude of the risk CMR Exam Tip For liability to attach, the requirements above must be shown. The child does not have to be attracted onto the land by the dangerous condition, nor is the attraction alone enough for liability. VIRGINIA DISTINCTION Virginia rejects the attractive nuisance doctrine. Virginia does, however, recognize the fact that, where children are concerned, the degree of care to be exercised is greater than where adults alone are involved.

6.3.1 Unknown Trespassers

No duty is owed to an undiscovered trespasser.

14.1 PRIVATE NUISANCE

Private nuisance is a substantial, unreasonable interfer- ence with another private individual's use or enjoyment of property that the other individual actually possesses or has a right of immediate possession. CMR Exam Tip Nuisance questions on the MBE 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 "unreason- able") interference with the plaintiff's use of their land. 14.1.1 Substantial Interference Substantial interference is interference that is offensive, inconvenient, or annoying to the average person in the community. It is not substantial if it is merely the result of the plaintiff's hypersensitivity or specialized use of their own property. 14.1.2 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. 14.1.3 Trespass to Land Distinguished In a trespass, there is an interference with the landowner's exclusive possession by a physical invasion; in a private nuisance, there is an interference with use or enjoyment.

10 FACTUAL CAUSATION

Once negligent conduct is shown (a breach of the standard of care owed a foreseeable plaintiff), the plaintiff must show that the conduct was the cause of their injury. For liability to attach, the plaintiff must show both factual cause (actual cause) and proximate cause. Several tests exist for deter- mining if the defendant's conduct is a factual cause of the plaintiff's injury.

2.1.2 Plaintiff's Person

Plaintiff's person includes anything connected to the plaintiff (for example, clothing or a purse).

14.2 PUBLIC NUISANCE

Public nuisance is 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. 14.3 REMEDIES 14.3.1 Damages The plaintiff usually will be awarded damages. 14.3.2 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 case, the court will consider the relative hardships. However, hardships will not be balanced if the defendant's conduct was willful. 14.3.3 Abatement by Self-Help In the case of a private nuisance, self-help abatement is avail- able 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. 14.4 DEFENSES 14.4.1 Legislative Authority Legislative authority for "nuisance activity" (for example, a zoning ordinance) is not an absolute defense but is persuasive. 14.4.2 Conduct of Others No one actor is liable for all damage caused by concurrence of their acts and others. EXAMPLE Ten steel mills are polluting a stream. Each steel mill is responsi- ble only for the pollution it causes. 14.4.3 Contributory Negligence Contributory negligence generally is no defense to nuisance unless the plaintiff's case rests on a negligence theory. 14.4.4 Coming to the Nuisance One may "come to a nuisance" (purchasing land next to an already existing nuisance) and, thereafter, pursue an action. It is generally not a bar to the plaintiff's action unless the plain- tiff "came to the nuisance" for the sole purpose of bringing a harassing lawsuit.

16.1.3 Publication

Publication means communication of the defamation to a third person who understands it. Such publication can be made either intentionally or negligently. It is the intent to publish, not the intent to defame, that is the requisite intent. Each repetition is a separate publication. However, for magazines, newspa- pers, etc., most states have adopted a "single publication" rule under which all copies are treated as one publication. CMR Exam Tip An exam favorite is the situation where a defama- tory statement about the plaintiff is made only to the plaintiff. As a general rule, in this situation there is no publication and thus no defamation. a. Who May Be Liable? Primary publishers (for example, newspapers, TV stations, etc.) are liable to the same extent as the author or speaker. One who repeats a defamation is liable on the same general basis as the primary publisher (even if she states the source or makes it clear that she does not believe the defamation). One selling papers or playing audio files is a secondary publisher and is liable only if he knows or should know of the defamatory content. An Internet service provider is not treated as a publisher when a user of its service posts defam- atory content.

Proximate Cause-11.2 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 defen- dant's negligent act are almost always foreseeable: • Medical malpractice • Negligence of rescuers • Protection or reaction forces to the defendant's conduct, including efforts to protect person or property • 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. 11.2.1 Compare-Superseding Forces Intervening forces that produce unforeseeable results (results not within the increased risk created by the defen- dant's negligence) are generally deemed unforeseeable and superseding. Superseding forces break the causal connec- tion between the defendant's initial negligent act and the plaintiff's ultimate injury, thus relieving the defendant of liability. For example, if the defendant negligently blocks a road, forcing the plaintiff to take an alternate road, and then another driver negligently collides with the plaintiff on this road, the other driver's conduct is an unforeseeable inter- vening force because the defendant's negligence did not increase the risk of its occurrence. Thus, the other driver is a superseding force that cuts off the defendant's liability for the original negligent act of blocking the road.

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS-8.3 SPECIAL RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANT

The defendant may be liable for directly causing the plain- tiff severe emotional distress when a duty arises from the relationship (typically commercial in nature) between the plaintiff and a defendant, such that the defendant's negli- gence has great potential to cause emotional distress (for example, doctor's misdiagnosis that patient has terminal illness; mortuary's negligent cremation of deceased contrary to family's instructions). Most states drop the requirement of physical symptoms in this situation as well.

8 NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS-8.1 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. The plaintiff usually must satisfy two requirements to prevail: • The plaintiff must be within the "zone of danger" • The plaintiff must suffer physical symptoms from the distress 8.1.1 Plaintiff Must Be Within the "Zone of Danger" The plaintiff will be considered to be within the zone of danger of the defendant's negligent acts when the plaintiff is sufficiently close to the defendant such that they are subject to a high risk of a physical impact. 8.1.2 Plaintiff Must Suffer Physical Symptoms from the Distress In a near miss case, most courts require that the emotional distress caused by defendant's conduct manifest itself in physical symptoms (note that severe shock to the nervous system that causes physical symptoms will satisfy this requirement). A growing minority of states have dropped the requirement of physical symptoms. VIRGINIA DISTINCTION Virginia requires the plaintiff to show by clear and con- vincing evidence that the distress caused symptoms or manifestations of physical injury, rather than just the typi- cal symptoms of an underlying emotional disturbance.

16.1 DEFAMATION

The elements of defamation are: • A defamatory statement that specifically identifies the plaintiff • Published to a third party • Damage to the plaintiff's reputation • Falsity of the defamatory language • Fault on the part of the defendant

2.4 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

The key testable elements for intentional infliction of emotional distress are: • An act by the defendant amounting to extreme and out- rageous conduct • The plaintiff must suffer severe emotional distress

1.3 CAUSATION

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. CMR Exam Tip In most cases, causation will not be at issue when you are analyzing an intentional tort because it is usually obvious that the defendant's conduct was a substantial factor in causing the harm.

15.1.4 Automobile Owner for Driver

The general rule is that an automobile owner is not vicari- ously liable for the tortious conduct of another person driving their automobile. In some jurisdictions, courts have devel- oped exceptions to this rule to hold an automobile owner liable under specific circumstances. a. Family Car Doctrine In many states, the owner is liable for tortious conduct of immediate family or household members who are driving with the owner's express or implied permission. VIRGINIA DISTINCTION Virginia rejects the family car doctrine. The owner of an automobile is not liable for the tortious conduct of imme- diate family or household members who are driving with the owner's permission. b. Permissive Use A number of states have now gone further by imposing liability on the owner for damage caused by anyone driving with the owner's consent. However, under a federal statute, rental car companies are not vicariously liable for the negli- gent accidents of their customers even if they do business in a "permissive use" state. c. Liability for Own Negligence—Negligent Entrustment An owner may be liable for their own negligence in entrusting the car to a driver. Some states have also imposed liability on the owner if they were present in the car at the time of the accident, on the theory that they could have prevented the negligent driving, and hence were negligent in not doing so. (This is not vicarious liability.) d. Driver Acting as Agent for Owner The car owner will be liable if the driver is acting as the owner's agent, for instance using the car to perform an errand for the owner.

2.2 ASSAULT

The key testable elements for assault are: • Act by the defendant creating a reasonable apprehen- sion in the plaintiff • Of an immediate battery (harmful or offensive contact to the plaintiff's person)

2.1 BATTERY

The key testable elements for battery are: • Harmful or offensive contact • Contact must be with the plaintiff's person CMR Exam Tip Remember in addition to the key testable ele- ments, all intentional torts also require proof of intent and causation.

2.3 FALSE IMPRISONMENT

The key testable elements for false imprisonment are: • An act or omission on the part of the defendant that con- fines or restrains the plaintiff • The plaintiff must be confined to a bounded area

2.2.6 Damages Not Required

The plaintiff can recover nominal damages even if actual damages are not proved. Malicious conduct may permit recovery of punitive damages.

2.3.5 Damages Not Required

The plaintiff can recover nominal damages even if actual damages are not proved. Punitive damages may be recov- ered if the defendant acted maliciously.

2.1.3 Damages Not Required

The plaintiff can recover nominal damages even if actual damages aren't proved. The plaintiff may recover punitive damages for malicious conduct.

2.2.5 Requirement of Immediacy

The plaintiff must be apprehensive that they are about to become the victim of an immediate battery.

16.1.2 Statement Must Specifically Identify Plaintiff

The plaintiff must establish that a reasonable reader, listener, or viewer would understand that the defamatory statement referred to the plaintiff. a. Colloquium If the statement does not refer to the plaintiff on its face, extrinsic evidence may be offered to establish that the state- ment refers to the plaintiff. This is known as pleading "collo- quium." b. Group Defamation • If the defamatory statement refers to all members of a small group, each member may establish that the state- ment specifically identifies them by alleging that they are a group member (in other words, every member of that small group wins!). • If the statement only refers to some members of a small group, the plaintiff can recover if a reasonable person would view the statement as referring to the plaintiff. • If the statement is about a large group, no member can prove that the statement specifically identifies them (in that case, no one wins!).

16.2 INVASION OF RIGHT TO PRIVACY

The right of privacy is a personal right and does not extend to members of a family, does not survive the death of the plaintiff, and is not assignable. The right of privacy is not applicable to corporations. The invasion of the plaintiff's interest in privacy must have been proximately caused by the defendant's conduct. The plaintiff need not plead and prove special damages. Emotional distress and mental anguish are sufficient damages. This tort includes four kinds of wrongs: • Appropriation of the plaintiff's picture or name • Intrusion on the plaintiff's affairs or seclusion • Publication of facts placing the plaintiff in a false light • Public disclosure of private facts about the plaintiff VIRGINIA DISTINCTION Virginia has codified just one branch of invasion of priva- cy: Appropriation of the plaintiff's name or likeness for the defendant's commercial gain. The other three branches of the common law tort of inva- sion of privacy were not included in the statute. Hence, the legislature has implicitly rejected them as viable caus- es of action in Virginia.

1.2.1 Transferred Intent

The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead: • Commits a different tort against that person • Commits the same tort as intended but against a different person OR • Commits a different tort against a different person In such cases, the intent to commit a certain tort against one person is transferred to the tort actually committed or to the person actually injured for purposes of establishing a prima facie case. 1.2.2 Limitations on Use of Transferred Intent Transferred intent may be invoked only if both the tort intended and the tort that results are one of the following: • Assault • Battery • False imprisonment • Trespass to land • Trespass to chattels CMR Exam Tip Everyone is "capable" of intent. Incapacity is not a good defense. Thus, young children and persons who are mentally incompetent will be liable for their intentional torts.

16.1.4 Damage to Plaintiff's Reputation

The type of damages the plaintiff must prove depends on the type of defamation (libel or slander) involved. Damages generally are presumed under the law of libel. In some slander cases, the plaintiff must prove that they suffered special damages—that is, they must have suffered some pecuniary loss in order to recover anything. But once the plaintiff has proved special damages, they may recover general damages as well. a. Libel Libel is a defamation that is embodied in permanent form. It is often a written or printed publication of defamatory language. Defamation in radio and television programs is treated by most courts today as libel. The plaintiff typically does not need to prove special damages to recover and general damages are presumed. (A minority of courts will presume general damages only if the statement is defam- atory on its face (libel per se) and require proof of special damages if the statement requires reference to extrinsic facts to establish its defamatory nature (libel per quod).) b. Slander Slander is spoken defamation. The plaintiff must prove special damages, unless the defamation falls within one of the slander per se categories. These are defamatory state- ments that: • Adversely reflect on the plaintiff's business or profession • State that the plaintiff has committed a serious crime (this includes most common law crimes and is sometimes referred to as crimes involving "moral turpitude") • Impute that the plaintiff has engaged in serious sexual misconduct • State that the plaintiff has a loathsome disease VIRGINIA DISTINCTION In Virginia, no distinction is made between libel and slan- der. Damages are presumed if in one of the slander per se categories.

16.2.2 Intrusion on Plaintiff's Affairs or Seclusion

This claim forbids such acts as eavesdropping, spying, inter- ception of phone calls or electronic communications, and other similar conduct. The act of prying or intruding must be highly offensive to a reasonable person. Furthermore, the thing into which there is an intrusion must be "private." Photographs taken in public places are not actionable.

10.2 MERGED CAUSES—SUBSTANTIAL FACTOR TEST

Where several causes bring about injury, and any one alone would have been sufficient to cause the injury, the defen- dant's conduct is the cause in fact if it was a substantial factor in causing the injury. Some courts refer to this situation as one involving "multiple sufficient causes." EXAMPLE D1 throws a lit cigarette out of a car window starting a forest fire. At the same time D2 fails to properly extinguish a campfire starting a second forest fire. The two fires spread, eventually join together, and burn down P's house. D1 and D2 are jointly and severally liable and P can recover the full amount of damages from either defendant.

2.4.1 Extreme and Outrageous Conduct

This is conduct that transcends all bounds of decency. Conduct that is not normally outrageous may become so if: • It is continuous in nature • It is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere "gross insults") OR • It is directed toward a certain type of plaintiff (children, elderly persons, someone who is pregnant, supersensi- tive adults if the sensitivities are known to defendant)

10.3 UNASCERTAINABLE CAUSES APPROACH

This test applies when there are two acts, only one of which causes injury, but it is not known which one. The burden of proof shifts to defendants, and each must show that his negli- gence is not the actual cause. [Summers v. Tice] EXAMPLE D1 and D2 both negligently fire shotguns in P's direction. P is hit by one pellet, but cannot tell which gun fired the shot. D1 and D2 will have to prove that the pellet was not theirs. If unable to do this, they may both be liable. CMR Exam Tip Distinguish these last two tests: Under the merged causes approach, both parties caused the harm. Under the unascertainable causes approach, although both parties acted negligently, only one caused the harm.

16.2.4 Public Disclosure of Private Facts About Plaintiff

This wrong involves public disclosure of private information about the plaintiff (for example, matters of public record are not sufficient). The public disclosure must be highly offen- sive to a reasonable person of ordinary sensibilities. Liability may attach even though the actual statement is true. First Amendment limitations probably apply if the matter is of legitimate public interest.

16.4 INTERFERENCE WITH BUSINESS RELATIONS

To establish a prima facie case for interference with business relations, the following elements must be proved: • Existence of a valid contractual relationship between the plaintiff and a third party or valid business expectan- cy of the plaintiff • The defendant's knowledge of the relationship or expec- tancy • Intentional interference by the defendant inducing a breach or termination of the relationship or expectancy • Damages 16.4.1 Privileges The defendant's conduct may be privileged if it is a proper attempt to obtain business for itself or protect its interests. A privilege is more likely to be found if the defendant: (1) inter- fered only with the plaintiff's prospective business rather than with existing contracts; (2) used commercially accept- able means of persuasion rather than illegal or threatening tactics; (3) is a competitor of the plaintiff seeking the same prospective customers; or (4) has a financial interest in or responsibility for the third party, or is responding to the third party's request for business advice. VIRGINIA DISTINCTION Retaliatory Discharge Even though "at-will" employees generally may be termi- nated for no reason, Virginia recognizes a common law action for retaliatory discharge in three narrow categories: (1) When an employer violates a public policy enabling the employee's exercise of a right created by statute; (2) When an employer violates a public policy explicitly expressed in a statute, and the employee is a member of the class of persons entitled to the protection intended by the public policy; and (3) When the discharge is based on the employee's refus- al to engage in a criminal act.

13.3.2 Elements for Strict Liability

To find liability under a strict liability theory, the plaintiff must show: • The defendant is a merchant (in other words, a commer- cial supplier of the product) • The product is defective • The product was not substantially altered since leaving the defendant's control • The plaintiff was making a foreseeable use of the product at the time of the injury

15.1.5 Bailor for Bailee

Under the general rule, the bailor is not vicariously liable for the tortious conduct of their bailee. a. Negligent Entrustment As above, the bailor may be liable for their own negligence in entrusting the bailed object. (This is not vicarious liability.) EXAMPLE John asked D if he can borrow his gun, and D agrees. John is a mature adult who is experienced in handling guns, but he negli- gently discharges the gun and injures P. John is liable to P for his own negligence but D will not be vicariously liable. However, if John were an irresponsible teenager who had no experience with guns, D would be liable for his negligent act of entrusting the gun to someone who did not know how to use it properly.

7 OTHER SPECIAL NEGLIGENCE DUTIES-7.1.2 Effect of Violation or Compliance

Under the majority view, an unexcused statutory violation is negligence per se; in other words, it establishes the first two requirements in the prima facie case—a conclusive presump- tion of duty and breach of duty. In contrast, even though violation of the applicable statute may be negligence, compli- ance with the statute will not necessarily establish due care.

6.3 POSSESSORS OF LAND

Under the traditional rule followed in many states, the duty owed a plaintiff on the premises for dangerous conditions on the land depends on the plaintiff's status as unknown trespasser, known trespasser, licensee, or invitee. CMR Exam Tip MBE questions testing the distinction between licensees and invitees will specify that the jurisdic- tion follows the traditional rules for land possessor liability. land-could be building, any kind, commercial Posssessor not always owner Establishes rule for duty to protect from dangerous conditions-activites conducted on land use ordinary reasonably prudent person standard

16.1.5 Falsity

Under traditional common law, the plaintiff did not have to prove that the statement was false. Rather the defendant was obliged to prove truth as a defense. Many states have altered that rule, however, and now require the plaintiff to prove falsity as part of the case-in-chief. Even in states that still follow the traditional rule, the plaintiff must prove falsity in any case where the plaintiff is constitutionally obligated to prove fault. CMR Exam Tip If you see a true statement on the exam, consider whether the plaintiff may have a cause of action for intentional infliction of emotional distress or invasion of right to privacy (unless the plaintiff is a public figure or a matter of public concern is involved).

2.4.2 Requisite Intent

Unlike for other intentional torts, recklessness as to the effect of the defendant's conduct will satisfy the intent requirement.

15.1 VICARIOUS LIABILITY

Vicarious liability is liability that is derivatively imposed. This means that one person (the active tortfeasor) commits a tortious act against a third party and another person (the passive tortfeasor) will be liable to the third party for this act. The basic situations that you should note for bar examination purposes are set out below.

7 OTHER SPECIAL NEGLIGENCE DUTIES-7.1.1 Excuse for Violation

Violation of some statutes may be excused where compli- ance would cause more danger than violation or where compliance would be beyond the defendant's control.

2.2.4 Effect of Words

Words alone are not enough. For the defendant to be liable, the words must be coupled with conduct. However, words can negate reasonable apprehension (for example, the defendant shakes their fist but states that they are not going to strike the plaintiff).

D owns a large ranch. Over a deep canyon there is a wooden footbridge. He recently had it inspected by an engineer. The engineer told him that, even though it appeared safe, the footbridge had rotted so that it could no longer support the weight of a person. One day while out horseback riding he sees P, a hiker on his land without permission, walking on his land towards the bridge. Does D owe P any duty to protect him from getting hurt on the bridge?

Yes; because trespasser is known and known man made death traps on the land. What to do? eliminate hazardous condition-repair replace or remove warning-sufficient complete fully communicate decision

16.1.7 Defenses to Defamation

a. Consent Consent is a complete defense. The rules relating to consent to intentional torts apply here. b. Truth In cases where the plaintiff is not obligated to prove falsity of the statement as part of their own case, the defendant may prove truth as a complete defense. c. Privilege z Absolute Privilege—Can Never Be Lost The defendant may be protected by an absolute privi- lege for the following: • Communications between spouses • Remarks made during judicial proceedings, by legis- lators during proceedings (even if not related to the proceedings), by federal executive officials, in "com- pelled" broadcasts z Qualified Privilege—Can Be Lost Through Abuse A qualified privilege arises only when there is a public interest in encouraging candor. The defendant bears the burden of proving that a privilege exists. Whether a speaker has a qualified privilege will be determined on a case-by-case basis. The qualified privilege may be lost if the statement is not within the scope of the privilege or it is shown that the speaker acted with actual malice. Some possible examples include: • References and recommendations • Reports of public hearings or meetings • Statements made to those who are to take official ac- tion (for example, statements made to a parole board about a prisoner) • Statements made to defend one's own actions, prop- erty, or reputation

13.3.3 Other Products Liability Theories

a. Liability Based on Negligence Negligence in a products case is proved the same as in a "standard" negligence case. The plaintiff may invoke res ipsa loquitur if the defect is something that would not usually occur without the manufacturer's negligence. Note that it is very difficult to hold intermediaries (such as retailers and wholesalers) liable for negligence because they can usually satisfy their duty through a cursory inspection. In addition, an intermediary's negligent failure to discover a defect does not supersede the original manufacturer's negligence unless the intermediary's conduct exceeds ordinary foreseeable negli- gence. z Who Can Sue? Privity with the defendant is no longer required, so any foreseeable plaintiff can sue. z Nature of Damages Recoverable Physical injury or property damage must be shown. (Recovery will be denied if the sole claim is for economic loss.) z Disclaimers Ineffective As with strict liability, disclaimers are irrelevant in cases based on negligence if personal injury or property damages occur. b. Implied Warranties of Merchantability and Fitness There are two warranties implied in every sale of goods that can serve as the basis for a suit by a buyer against a seller: • Merchantability, which refers to whether the goods are of average acceptable quality and are generally fit for the ordinary purpose for which the goods are used. Goods that are likely to injure users even when handled proper- ly are quite obviously in breach of this warranty and will subject the seller(s) to liability. • Fitness for a particular purpose, which arises when the seller knows or has reason to know the particular pur- pose for which the goods are required and that the buyer is relying on the seller's skill and judgment in selecting the goods z Who Can Sue? Most courts no longer require vertical privity. Most states adopted a narrow version of the horizontal privity requirement. This means the buyer, family, household, and guests can sue for personal injuries. These warran- ties also generally apply to a lease of goods. VIRGINIA DISTINCTION Virginia has adopted the broadest version of the horizon- tal privity requirement. Lack of privity between the plain- tiff and defendant is no defense in any action brought against the manufacturer or seller of goods to recover damages for breach of warranty, express or implied, or for negligence. z What Constitutes Breach? If the product fails to live up to either of the above standards, the warranty is breached and the defendant will be liable. The plaintiff does not have to prove any fault on the part of defendant. z Causation Actual cause and proximate cause are handled as in ordinary negligence cases. z Damages Personal injury and property damages, and purely economic loss, are recoverable. z Defenses 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). z Effect of Disclaimers Disclaimers are generally rejected in personal injury cases but upheld for economic loss. c. Representation Theories A defendant may be liable when a product does not live up to some affirmative representation. The two representation theories are: • Express warranty • Misrepresentation of fact z Express Warranty Any affirmation of fact or promise concerning goods that becomes part of the basis of the bargain creates an express warranty. An express warranty may also be made in a lease of goods. — Who Can Sue? Any consumer, user, or bystander can sue. If a buyer sues, the warranty must have been "part of the basis of the bargain." If the plaintiff is not in privity (for example, a bystander), they need not have relied on the represen- tation as long as someone did. — Breach Fault need not be shown to establish breach. Plaintiff need only show that the product did not live up to its warranty. — Causation, Damages, and Defenses Causation, damages, and defenses are treated just as they are under implied warranties. — Disclaimers A disclaimer will be effective only in the unlikely event that it is consistent with the warranty. z Misrepresentation of Fact A seller will be liable for misrepresentations of facts concerning a product where: • The statement was of a material fact concerning quali- ty or uses of goods (mere puffery insufficient) • 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 (in other words, the representation was a substantial factor in inducing the TORTS NOTES 59 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 liability. — Defenses Assumption of risk is not a defense if the plaintiff is entitled to rely on the representation. Contributory negligence is the same as in strict liability unless the defendant committed intentional misrepresentation.

15.2.2 Satisfaction and Release

a. Satisfaction Recovery of full payment is a "satisfaction." Only one satisfac- tion is allowed. Until there is satisfaction, however, one may proceed against all jointly liable parties. b. Release In most states, a release of one tortfeasor does not discharge other tortfeasors unless it is expressly provided for in the release agreement.

Additional Element Explanation

c. Existence of Defect When Product Left Defendant's Control The plaintiff must show that the product has not been signifi- cantly altered since it left the defendant's control. If the product moved through normal channels of distribution, it will be inferred that the product was not altered and that the defect existed when the product left the defendant's control. d. Misuse of Product May Be Foreseeable The 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. CMR Exam Tip Remember a "foreseeable" use does not mean an "intended" or an "appropriate" use. Many products are commonly misused in ways that could be considered foreseeable. e. Nature of Damages Recoverable Physical injury or property damage must be shown. Recovery will be denied if the sole claim is for economic loss. f. Disclaimers Ineffective Disclaimers are irrelevant in strict liability cases if personal injury or property damages occur.

Breach

concrete specific behavior by defendant that falls short of relevant standard of care can be affirmative act or omission Essay-identify wrong conduct then explain why conduct should be wrongful When the defendant's conduct falls short of that level required by the applicable standard of care owed to the plaintiff, the defendant has breached their duty. Whether the duty of care is breached in an individual case is a question for the trier of fact. The plaintiff may use one of the following theories to show proof of the breach: 9.1 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 that the entire industry is acting negligently. 9.2 VIOLATION OF STATUTE Where the duty of care is set by a statute under the rules that govern using statutes in negligence litigation, proof of violation of the statute is conclusive evidence of breach of duty. This is known as "negligence per se." Causation and damages must still be established by the plaintiff.

SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT-professionals

malpractice claims A professional is required to possess the knowledge and skill of an average member of the profession or occupation in good standing. For doctors, most courts apply a national standard of care to evaluate their conduct. VIRGINIA DISTINCTION Virginia generally has a statewide standard of care rule for physicians. However, a locality standard of care will be followed if a party shows that the availability of health care services and facilities and the customary practices in the locality make that standard of care more appropriate than a statewide standard. multistate-national standard virginia-statewide standard-also permits defendant to argue local standard of care-customary resources make it more reasonable to use local standard

b. Types of Defects

z Manufacturing Defects If a product emerges from manufacturing different from and more dangerous than the products that were made properly, it has a manufacturing defect. The defendant will be liable if the plaintiff can show that the product failed to perform as safely as an ordinary consumer would expect (the defendant must anticipate misuse). (Note this also applies to defective food products.) EXAMPLE A chair is designed to have 8 bolts. One chair comes off the assembly line with only 3 bolts. That chair has a manufacturing defect. z Design Defects When all products of a line are the same but have dangerous propensities, they may be found to have a design defect. Manufacturers will not be held liable for some dangerous products (for example, knives) if the danger is apparent and there is no safer way to make the product. The plaintiff usually must show that the defendant could have made the product safer, without serious impact on the product's utility or price (the "feasible alternative" approach). EXAMPLE A company manufactures a stuffed bear with buttons on its chest that are a choking hazard for small children. The plaintiff can win a strict liability claim by showing that safer embroidered buttons are a feasible alternative design. — Government Safety Standards A product's noncompliance with government safety standards establishes that it is defective, while compli- ance with safety standards (including labeling require- ments) is evidence—but not conclusive—that the product is not defective. z Information Defects A product may be defective as a result of the manufac- turer's failure to give adequate instructions or warnings as to the risks involved in using the product that may not be apparent to users. For prescription drugs and medical devices, warnings given to "learned intermediaries" (for example, the prescribing physician) will usually suffice in lieu of warnings to the patient.