Torts

DEFENSES TO INTENTIONAL TORTS 2. PROTECTIVE PRIVILEGES When a question involves the defense of self, others, or property, ask the following three questions: **"privilege" is linguistic convenience to not say defense twice.

(1) Is the privilege available? These privileges apply only for preventing the commission of a tort. Already committed torts do not qualify. [proper timing] (2) Is a mistake permissible as to whether the tort being defended against (battery, trespass, etc.) is actually being committed? [reasonable belief] (3) Was a proper amount of force used? [reasonable force] TIP: Keep your parties clear. In questions involving these defenses, the conduct of the defendant was prompted by the commission or apparent commission of a tort by the plaintiff. That tort is not at issue, however; the issue is whether the defendant's response itself constituted a tort against the plaintiff (usually battery, trespass to land, or trespass to chattels) or instead was privileged by one of these defenses.

INTENTIONAL TORTS TO PROPERTY (7 total including to person) 5. TRESPASS TO LAND The key testable elements for trespass to land are:

(1) Physical invasion (2) Of the plaintiff's real property (land) (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. ex: 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. Damages Not Required: The plaintiff can recover without showing actual injury to the land.

NIED case type #2: BYSTANDER CASES (D negligently kills or seriously injures 3p causing P emotional distress) A bystander outside the "zone of danger" of physical injury who sees the defendant negligently injuring another can recover damages for their own distress as long as:

(1) The plaintiff and the person injured by the defendant are closely related - close family member is restrictive (spouse, parent, minor child) - minority case law expands family definition (2) The plaintiff was present at the scene of the injury and personally observed or perceived the event - physically present, see it in real time in person - contemporaneous witness ex: father watches young child get killed as it happens. if it was neighbors child he was babysitting, nephew, or grandchild = no NIIED recovery. **this has nothing to do with the original negligence claim Most states drop the requirement of physical symptoms in this situation.

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. duty: legally imposed obligation to take risk reducing precautions for the benefits of others. if u dont, u pay damages to the victim. 2 follow up questions/ when confronted with a negligence question, you should always ask:

(1) To whom do you owe a duty? - who are beneficiaries of the risk reduction? (2) What is the applicable standard of care? - how much risk reduction is required?

how to satisfy premises liability duty: what does D have to do to avoid liability?

(1) eliminate the hazardous condition (repair, replace, remove); OR (2) warn about the hazardous condition (requires no 3 Rs, just "don't sit in that chair, it's flimsy" - warning has to be sufficiently complete. if entrant remains present, keep danger present in their mine (sign, not just verbal)

NIED case type #3: SPECIAL RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANT examples of business relationship where emotional distress is highly foreseeable

(1) patient/medical laboratory - ex: biopsy erroneously reveals serious medical condition. recovery bc highly foreseeable that medical lab doing tests of serious illness will cause ED if the provide careless false positive results (like HIV) (2) customer/funeral parlor - customer is already emotionally fragile - ex: if funeral facility loses the person's loved one, accidentally cremates. NOT: customer/dry cleaner - ex: dry cleaner badly damages shirt - no recovery - even if P's reaction is sincere, its not highly foreseeable.

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 4 elements: standard of care for trespassing kids: reasonably prudent care (RPP) under circumstances to protect from artificial hazards

(1) A dangerous condition on the land that the owner is or should be aware of (2) The owner knows or should know that children might trespass on the land -- if highly unlikely kids will trespass, its perfectly reasonable for landowner to do nothing. if a kid did show up, D is not liable bc behaved reasonably given what they can anticipate. - things that make it likely: things on property that are "kid magnets" aka "attractive" to kids (swing sets) --> now, must exercise reasonable care (3) The condition is likely to cause injury (it is dangerous because of the child's inability to appreciate the risk) (4) The expense of remedying the situation is slight compared with the magnitude of the risk 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.

THE GENERAL DUTY OF CARE IN NEGLIGENCE The 4 elements of a prima facie case of negligence are:

(1) 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 - P must show D owed a duty of care ---> questions of law (law library) (2) A breach of that duty by the defendant ---> predominately about facts (3) causation: The breach is the actual and proximate cause of the plaintiff's injury - factual and proximate cause ---> logic and policy (Creativity) (4) Damages - actual damages --> facts and law (blend)

INTENTIONAL TORTS TO THE PERSON (7 total) 2. ASSAULT The key testable elements for assault are:

(1) Act by the defendant creating a reasonable apprehension in the plaintiff (2) Of an immediate battery (harmful or offensive contact to the plaintiff's person) Damages Not Required The plaintiff can recover nominal damages even if actual damages are not proved. Malicious conduct may permit recovery of punitive damages.

TRESPASS TO CHATTELS & CONVERSION The key testable element for both is:

(1) Act by the defendant that interferes with the plaintiff's right of possession in a chattel (tangible personal property) **for conversion: Interference is serious enough in nature or consequences to warrant that the defendant pay the chattel's full value (2) Intent Required: Intent to trespass isn't required; intent to do the act of interference is all that is needed. The defendant's mistaken belief that they own the chattel is no defense. -- 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. REMEDIES: **private civil damage remedies for vandalism and theft - conversion: plaintiff may recover damages (fair market value at the time of conversion) or possession (replevin).

INTENTIONAL TORTS TO THE PERSON 4. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS The key testable elements for intentional infliction of emotional distress are:

(1) An act by the defendant amounting to extreme and outrageous conduct (2) The plaintiff must suffer severe emotional distress (P can offer any evidence re ED - up to jury to determine if sufficiently severe) (3) Requisite Intent: Unlike for other intentional torts, recklessness as to the effect of the defendant's conduct will satisfy the intent requirement. (D disregards the likely consequences of his acts) 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. **TIP: Intentional infliction of emotional distress is the only intentional tort to the person that requires damages

INTENTIONAL TORTS TO THE PERSON (7 total) 3. FALSE IMPRISONMENT The key testable elements for false imprisonment are:

(1) An act or omission on the part of the defendant that confines or restrains the plaintiff (act of restraint) (2) The plaintiff must be confined to a bounded area --doesn't have to be precisely defined, boundary lines can be fuzzy i.e., "you cant leave the store" is vague, but that's good enough, they dont have to define it like a real estate in a deed -- 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. (not bounded if reasonable means of escape that P can reasonably discover = not locked in if there's a way out) --Awareness of Confinement required The plaintiff must know of the confinement or be harmed by it. (ex: D locks P's bedroom door while P is asleep, but unlocks the door before P wakes. P can't recover) - has to be "oh no i'm trapped/locked in by P" -- Time of Confinement It is irrelevant how short the period of the confinement is. -- Damages Not Required The plaintiff can recover nominal damages even if actual damages are not proved. Punitive damages may be recovered if the defendant acted maliciously. **we all have a legal right to be free from confinement

Doctrine of Transferred Intent The transferred intent doctrine applies when the defendant intends to commit a tort against one person but instead:

(1) Commits a different tort against that person (2) Commits the same tort as intended but against a different person OR (3) Commits a different tort against a different person 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. ex: prof wants to throw rock at John, he hits pedestrian Patricia. prof = liable for battery to Patricia even tho he didn't intend to hit her ex: now Patricia doesn't get hit, but she has a brief moment of being scared. so theres a different tort (assault) and a different victim (Patricia) than what the actor intended. --name is a misnomer --> its not really about INTENT, most people would say u hit Patricia by accident ex: A defendant who acts with the intent to commit an assault but whose conduct actually constitutes a battery is liable for battery.

INTENTIONAL TORTS TO THE PERSON (7 total) 1. BATTERY The key testable elements for battery are:

(1) D must cause a Harmful or offensive contact (2) Contact must be with the plaintiff's person **Remember in addition to the key testable elements, all intentional torts also require proof of intent and causation. 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.

NIED case type #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. In addition to underlying negligence, P must show:

(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. -- D's negligence put P in zone of danger -- aka have to prove it was a near miss. -- ex: person crossing street, D runs red light and misses P by 6 inches. -- statutory negligence. near miss. (2) The 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. -- after the near miss, there was a diagnosable, physical consequence --ex: because of the near miss, P fell to ground from heart attack

1. CONSENT (2) Implied Consent: Apparent consent is that which a reasonable person would infer from:

(a) custom and usage or --where certain personal invasions are routine, P is treated as having consented. - ex: team sports with contact. tackling is part of football, its assumed u knew that when u agreed to play (b) the plaintiff's conduct - for example, normal contacts inherent in body-contact sports, ordinary incidental contact, etc. -- aka body language consent - entitled to interpret peoples behavior in reasonable way consistent with social norms. reasonable interpretation of P's objective conduct - ex: at party, person introduces themself and stick out their hand = interpret as consent to handshake --jury decides if interpretation was reasonable Consent implied by law arises when action is necessary to save a person's life or some other important interest in person or property.

1. BATTERY (1) Harmful or Offensive Contact Contact is harmful if it causes actual injury, pain, or disfigurement. Contact is offensive if it would be considered offensive to a reasonable person.

**harmful contact will be obvious: bleed, break bones, hospital, etc. --> EASY **focus on offensive! it can be a grayer area offensive = unpermitted --> substitute in brain. remember, unpermitted by a person of ordinary sensitivity bc heightened sensitivity is ignored 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 everyday life (for example, minor bumping on a crowded bus).

2. ASSAULT (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 intimidation (for example, a weakling can cause a bully to apprehend offensive contact for purposes of assault).

**prof thinks apprehension is bad word. here it really means knowledge or fear (NOT anxiety/nervousness) **P must have an awareness that they are about to suffer a battery - have to know that a touch is imminent. have to see it coming. if P's oblivious = no recovery for assault. ex: P is asleep, P has no idea D is about to wack them. no liability bc P did not have knowledge/reasonable apprehension. 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. OTOH, you don't have to be afraid. "I apprehend that the capital is Sacramento" = aware of the fact, know it (in other words, P must anticipate a battery)

**emotions are different: contrast near miss from bystander

- near miss emotions might be fright, fear, anxiety - bystander case the emotion is grief, sadness, melancholy

(2) immediate battery Requirement of Immediacy The plaintiff must be apprehensive that they are about to become the victim of an immediate battery.

--words alone lack immediacy (see ex above) [exam favorite] -- BUT words can destroy immediacy **even when you do have conduct, words can negate the effect of that conduct and destroy immediacy ex: conditional language: pull hand back "if u weren't my friend, id slap you silly" - no assault bc words negate implication of D's menacing conduct. ex: words cast in future tense: shake my fist in your face "just you wait until tomorrow, i'm going to beat you" - no immediate battery bc words indicated no hit till tomorrow.

RES IPSA LOQUITUR used by plaintiffs in an information vacuum - they dont have information about D's breach. original case: man walks by bakery and wooden barrel of flour falls out of window and hits him. P doesn't know how the barrel fell. P unable to point to specific faulty conduct. judge was in good mood. doctrine is substitute for direct evidence of breach of duty if P can show: 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:

2 prongs: (1) The accident causing the injury is a type that would not normally occur unless someone was negligent - accident is normally associated with negligence. probabilities based argument. - relying on statistics and common knowledge. - "when barrels fall out of windows, it normally means someone screwed up" (2) The negligence is probably attributable to the defendant (meaning this type of accident ordinarily happens because of the negligence of someone in the defendant's position). This can often be shown by evidence that the instrumentality causing the injury was in the exclusive control of the defendant. - the accident would normally be due to negligence of someone in this D's position (aka probably sued the right person) - [breach usually identifies the D, so if we don't know what the breach is, court needs reassurance that D did it] ---> show this by showing D had exclusive control of the injury-causing object at the time of the accident.

SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT (4) 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: Criminal Statute may replace Duty of Care if: aka re 1) legal: plaintiff must satisfy this 2-part test to show the statute is legally appropriate

2-part test, prerequisite for borrowing a criminal statute: class of person/ class of risk test (1) • The plaintiff is within the protected class -- come up with class of persons the statute is trying to protect -- collective noun that describes identify a subset of the public (NOT "people" or "the public") -- ex: red light statute is designed to protect pedestrians and motorists, particular those traveling perpendicular -- ex: students, patients, children, customers, visitors and occupants of the building (for elevator statute) AND (2) • The statute was designed to prevent the type of harm suffered by the plaintiff -- harm suffered is within risks statute is trying to prevent (that the accident that actually occurred is one of the risks that the statute was trying to prevent) -- more specific than "accidents" or "risk of injury" (need class of risk)

DEFENSES TO INTENTIONAL TORTS 3. NECESSITY Private Necessity

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). - D acts in emergency to protect his own interests (not good Sumerian - selfish) - limited/qualified defense (NOT absolute) D remains liable to pay compensatory damages to P property owner. ex: steal fire extinguisher to put out my car on fire, no risk of fire spreading. D must pay company for broken window and taken extinguishers bc for D's personal benefit. not liable for nominal/punitive damages wrt trespass to land bc privilege to enter. - if D enters seeking refuge from whether and doesn't cause any damage, D is not liable for anything - ex: blizzard in rural area. D enters home and doesn't damage a thing. leaves when storm over. property owner can't recover $1 or punitive damages. - but, if he broke lock to get in or broke vase he would have to pay. privilege to enter AND stay as long as emergency continues - homeowner cannot through intruder back into the blizzard. can recover from homeowner if intruder then gets frostbite.

5. TRESPASS TO LAND (1) Physical Invasion 2nd method of physical invasion:

2. The invasion may be by object (ex:, throwing a baseball onto the plaintiff's land is a trespass). **invasion must be tangible/physical - something tangible thrown onto land i.e., sound waves can't trespass, floodlights cannot trespass --> these are actionable as nuisance. 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. **note: physical invasion does not have to be destructive. ex: making a stone skip in someone's pond. no harm, but still a trespass.

INTENTIONAL TORTS TO PROPERTY 6. TRESPASS TO CHATTELS: defintion 7. CONVERSION: definiton what is chattels?

6. chattels: intentional interference with P's personal property that warrants D pay damages 7. conversion: intentional interference with P's personal property that warrants D pay property's full value - Acts of conversion include wrongful acquisition (theft), wrongful transfer, wrongful detention, and substantially changing, severely damaging, or misusing a chattel. chattels/personal property: everything u own besides real estate (laptop, cell phone, clothing, shoes, car, furniture, the money in your wallet)

RES IPSA LOQUITUR 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.

SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT (2) PROFESSIONALS (malpractice claim = negligence claim against professional) **on exam, most involve medical professionals - could be specialist, chiropractor, pediatrist, dermatologist, dentist hint: DO NOT SAY D must behave like "reasonable doctor" --> reasonable is a legal term of art that means imaginary. D should not be compared to an imaginary doctor.

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 (expert can come from anywhere in the nation to describe normal custom; but specialties have to have experts re same type of specialty) standard of care for all professions: same care as average member of profession providing similar professional services **average, NOT reasonable means that professionals is not compared to hypothetical/imaginary person, but compare to real world colleagues/peers -- not an act of imagining what RPP would do -- empirical standard (not objective, not subjective) looks out into the real world -- conform to colleagues. -- custom of the profession sets the standard of care -- expert witness is used to educate jury on professional custom ("are u familiar with how this procedure is normally done") 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.

Negligence (1) To whom do you owe a duty? Rescuers Exception what about firefighters/police?

A rescuer is a foreseeable plaintiff when the defendant negligently put themselves or a third person in peril (danger invites rescue). - ex: rescuer standing far away may come to center of action to render aid. so law takes potion that they should also be owed a duty of care and ability to recover - "danger invites rescue" = owed duty of care, but doesn't automatically win (still must prove other elements) 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. 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 foresee- able plaintiff.

shopkeep's privilege: Shoplifting Detentions re false imprisonment tort defense

A shopkeeper has a privilege to detain a suspected shoplifter for investigation. For the privilege to apply, the following conditions must be satisfied: (1) There must be a reasonable belief as to the fact of theft (2) The detention must be conducted in a reasonable manner and only nondeadly force can be used (3) The detention must be only for a reasonable period of time and only for the purpose of making an investigation **even if customer turns out to be innocent

(5) AFFIRMATIVE DUTIES TO ACT Exception #1: 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 accommodation have a duty to prevent injury to guests by third persons. traditional relationships: innkeeper-guest common carrier-passenger employer-employee business owner-custoemr family member-family member ex: hotel has to act affirmatively, formal relationship of innkeeper-guest

GENERAL CONSIDERATIONS FOR INTENTIONAL TORTS To establish a prima facie case for any intentional tort, the plaintiff must prove:

An act by the defendant (volitional movement) Intent by the defendant -- 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. Causation of the result to the plaintiff from the defendant's act -- 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. intent example: D, wanting to play a prank on his co-worker P, sees P enter a store- room and locks the only exit door from the storeroom with the purpose to confine P. Neither D nor P were aware that there was a colony of poisonous spiders in the storeroom. While P is confined, he is bit by one of the spiders and suffers serious injuries. D had the requisite intent for false imprisonment because he wanted to confine P, even though he did not intend for P to suffer insect bites.

SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT (3) POSSESSORS OF LAND/real estate standard 2. Known/Anticipated Trespasser duty IF: hazard has to check all 4 boxes, otherwise no duty/obligation to take precautions______ anticipated trespasser: possessor doesn't actually know they are on their land, but should reasonably expect to be there **on exam, set up by saying unfenced backyard and pattern of trespassing in the past known trespasser: you see trespasser taking shortcut through your yard

As to discovered or anticipated trespassers, the land possessor must warn of or make safe any conditions that are: (1) • Artificial condition (build by humans) - if naturally occurring hazards = no duty; like snow or ice build up on front steps (2) • Highly dangerous (involving risk of death or serious bodily harm) - only have to protect people against conditions that could really hurt them (3) • Concealed from trespasser/P - not apparent or visible - if open or obvious = no duty of care - big pool hole is obvious danger (3) • Known to land possessor/D in advance - if possessor/D doesn't know or isn't aware of hazard his saying:: duty only to protect from known, man-made death traps on land

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

hypo: 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?

D owes P a duty of care. If D did nothing, D would be liable step 1: what kind of entrant (focus on P). - he did not have permission to be on land. so he is a trespasser - bc D saw him/knew, P is a known trespasser step 2: ask whether potentially dangerous condition meets the corresponding test: here, test for known trespassers (must be known, man-made death trap) (1) artificial - man made bridge. (2) highly dangerous - can't support a human over a canyon (3) concealed from P - facts say bridge appears safe (4) known in advance to D - yes, D read engineers report and had this knowledge in advance. bridge = known, man-made death trap on his land step 3: what does D have to do to avoid liability? how to satisfy premises liability duty: (1) eliminate the hazardous condition (repair, replace, remove); OR (2) warn about the hazardous condition (requires no 3 Rs, just "don't sit in that chair, it's flimsy" - warning has to be sufficiently complete. if entrant remains present, keep danger present in their mine (sign, not just verbal)

2. PROTECTIVE PRIVILEGES (2) accuracy requirement: reasonable belief in threat

D using the defense must have a reasonable belief that the threat is genuine **generous - cuts slack for D, makes the defense easier because even if D gets the facts wrong, still may have defense so long as he interpreted is reasonably in the heat of the moment -- reasonable errors are ok -- "do not act at your peril" ex: rainbow strap on suitcase. someone picks it up, u get mad, so if u forcibly grab the bag even if u dont touch the person it's a battery. bag turns out not to be D's. D is sued for battery. D uses defense of property - I made a reasonable mistake- reasonable belief P was robbing suitcase marked with rainbow strap. this defense will let D win sh

SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT (3) POSSESSORS OF LAND/real estate standard 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 conditions that are:

DUTY IF: 2-part test (1) Concealed (2) Known to the land possessor in advance or could have been discovered by a reasonable inspection --reasonable inspections are reasonably thorough, not perfect. only take place at reasonable points in time -- includes when open to public at large enter land with permission for financial benefit of posessor - ex: drive to airport to pick up frient - ex: walk into temple/church - ex: enter store to shop --> even if u didnt enrich them economically, still invitee bc open to public during business hours his saying: for invitees, possessor must protect from all reasonably knowable traps on the land

SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT (3) POSSESSORS OF LAND/real estate standard 3. Licensees A licensee is one who enters onto the land with the possessor's permission (express or implied) for their own purpose or business, rather than for the possessor's benefit. (aka without financial benefit to possessor) Social guests are considered 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.) - most common licensee: social guests, people who walk to front door (implied license to attempt entry, unless sign) As to licensees, the land possessor has a duty to warn of or make safe hazardous conditions that are:

DUTY IF: 2-part test (1) Concealed from licensee (2) 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. his saying: must protect licenses from all known traps on your property --eliminated artificial, eliminated requirement that condition be extremely dangerous. with licensees, owe duty even if condition is only moderately dangerous

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 remember is the following:

Deny the defendant's motion for directed verdict if the plaintiff has established res ipsa loquitur or presented some other evi- dence of breach of duty (such as the defendant'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 (no prima facie case) 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.

tip re intent

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.

SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT (5) AFFIRMATIVE DUTIES TO ACT what are the exceptions? and under the exceptions, what is the duty owed?

Exception #1: Special Relationship Between Parties Exception #2: Peril Due to Own Conduct Duty Owed: the duty owed is NOT a duty to rescue. it is a duty to act reasonably under the circumstances. - NEVER OBLIGATORY to put own life in jeopardy ex: call 911, turn on speakers, give guests instruction

SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT (4) STATUTORY STANDARDS OF CARE what are the 2 exceptions: *won't use statute even when 2-part legal test is met

Excuse for Violation Violation of some statutes may be excused where: (1) compliance with the statute would cause more danger than violation (under the given circumstances) OR (2) compliance would be beyond the defendant's control (aka compliance would have been impossible) -- #1: ex: to avoid hitting child, D swerves over double yellow line (criminal penalty P is trying to use as standard of care). even though designed to prevent oncoming auto accidents, here, obeying the statute would've been more dangerous (hitting child who darted in front) -- #2: ex: D had heart attack and cannot control vehicle and runs a red light. here, statute isn't borrowed because if D is suddenly disabled and can't control vehicle, dont use statute. --> then, go back to RPP standard of care

1. CONSENT what are they two types?

Express (Actual) Consent: words giving permission Implied Consent Apparent consent is that which a reasonable person would infer from custom and usage or the plaintiff's conduct,

(2) Bounded area requirement

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. -not reasonable way out/not discoverable: (1) dangerous, (2) disgusting, (3) humiliating, (4) hidden disgusting ex -- rat infested sewer pipe that leads to the street. Q turns on whether alternative exit was reasonable. here, unreasonable. humiliating ex -- at a Turkish bath naked, friend locks door to changing room. only way to exit where females are/public area. falsely imprisoned? yes bc only means of escape was to walk out naked = humiliating hidden ex -- if exit is not discoverable, still bounded area

SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT (5) AFFIRMATIVE DUTIES TO ACT

Generally, one does not have a legal duty to act affirmatively. -- no duty to undertake a course of conduct in the first place --but if u chose to act (drive), u must do so as a RPP under the circumstances There is no duty to rescue. -- even if you could do so with no risk -- tested: try to trick you by appealing to emotions ex: Some Olympic swimmers are walking by a lake and notice a child drowning. There is no duty for the swimmers to rescue the child.

Negligence (1) To whom do you owe a duty? DUTY OF CARE OWED ONLY TO FORESEEABLE PLAINTIFFS/victims A duty of care is owed only to foreseeable plaintiffs—the class of persons who were foreseeably endangered by the defendant's negligent conduct. ex: An employee of D negligently aided a passenger boarding a train (gives dude a boost), causing the passenger to drop a package (containing fireworks). The package exploded, causing a weighing scale that was a substantial distance away to fall on a second passenger waiting on the platform - Ms. Palsgraf. can the second passenger recover? (Palsgraf v. Long Island Railroad)

Held: The second passenger can't recover because a reasonable person would not have foreseen a risk of injury to her under the circumstances; in other words, she wasn't located in a foreseeable "zone of danger." (Cardozo) Ms. Palsgraf is unforeseeable victim because she was outside the "zone of danger." unforeseeable victim = not owed a duty of care = loses negligence case people who are foreseeable: the guy the EE is shoving, other people on the back platform, the EE himself. what about the lady sitting way over there? --P lost because she was all the way over there = owe a duty of care to the people NEAR YOU (do not owe a duty of care to unforeseeable victims = unforeseeable victims will always lose negligence suits bc not owed a duty)

tip re causation

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.

(1) reasonable apprehension Effect of Words ex: in 15 seconds i'm going to punch you in the face. assault?

In the vast majority of cases, 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). [prof talks about ^ wrt immediacy requirement] ex: NOT assault. 15 seconds sounds pretty immediate, but not assault bc words alone. law assumes talk is cheap. --until D makes a move, not imminent.

1. CONSENT Capacity Required threshold consideration

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. **first ask if person had capacity - if u lack capacity (developmentally disabled) u can't give consent 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. it's not black and white. sliding scale w/ limited capacity ex: two 11 year old boys can validly consent to wrestling. bc sophisticated enough to know what wrestling is. but can't consent to sex. ex: developmentally disabled person can consent to a hair cut bc sufficient understanding. can't consent to surgery.

hypo: P sues D for negligence for destruction of P's garage by fire. D stores gas-soaked rags in his garage in the summer, which is dangerous. A fire starts and burns the garage of P, his next-door neighbor. P sues D for damages. D truthfully claims that he didn't know storing rags like that was dangerous. is D liable?

It doesn't matter that D has a low IQ or is a high school drop out, D is still liable. RPP would never do this.

IIED (1) Extreme and Outrageous Conduct This is conduct that transcends all bounds of decency. (write: P must show outrageous conduct, defined as: conduct that exceeds all bounds of decency tolerated in a civilized society) Conduct that is not normally outrageous may become so if (aka 3 hallmarks of outrageousness): note: **this tort needs to be done though a specific tactic/technique: only a tort if D uses extreme or outrageous conduct. note, other 3 torts were torts if it achieved the forbidden consequence regardless of the tactic used

It is continuous in nature/repetitive -- behavior has to be bad in the first place, then happens over and over again. -- ex: debt collection by harassment, wakes u up at 3am and demands money in 48 hours every night - badgering, persistent It is committed by a certain type of defendant (common carriers or innkeepers may be liable even for mere "gross insults") -- ex: transportation company (airline, bus company) or hotels -- ex: checking in for flight, person say "ur too ugly to fly with Spirit" - thats outrageous BECAUSE its coming from an airline. insult to appearance normally not outrageous It is directed toward a certain type of plaintiff (children, elderly persons, someone who is pregnant, supersensitive adults if the sensitivities are known to defendant) -- P is a member of a fragile class (young children). pick on someone your own size. its the fact that targeting a fragile class, NOT the insult that's outrageous. -- D has to know P is pregnant ALSO** if D targets P's known sensitivity or weakness -- ex: putting cats on the desk of someone D knows is particularly frightened by cats **mere insults are not considered outrageous - insults alone (but, if packaged with other conduct, maybe) ex: F**, insult clothing = NOT outrageous

self defense 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.

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 transferred intent, D will have a valid self-defense claim to avoid liability.

Insufficient acts of restraint include:

Moral pressure Future threats

DEFENSES TO INTENTIONAL TORTS 3. NECESSITY defenses to property torts 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 2 types of necessity:

Necessity is a defense only to property torts**cant use necessity defense for any other intentional tort (battery, etc.) -- property torts: trespass to land, trespass to chattels, & conversion 1. Public Necessity A defendant can raise public necessity as a defense if they acted to avert an "imminent public disaster." --property tort committed during emergency to protect the community at large. tort will be excused bc public necessity is an absolute defense - emergency = unfolding over time/continual (NOT instantaneous) - ex: natural disasters. flood waters rising. fire spreading. - D acts in emergency to protect community (good Sumerian defense) 2. Private Necessity see next.

(5) AFFIRMATIVE DUTIES TO ACT Exception #2: Peril Due to Own Conduct

One has a duty to assist someone they have negligently or innocently placed in peril. **Defendant caused the peril - regardless of if caused by a negligent act

(5) AFFIRMATIVE DUTIES TO ACT 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). --once you choose to act/rescue, you must rescue like a reasonable person Exception: Many states have enacted Good Samaritan statutes, which exempt doctors, nurses, etc., from liability for ordinary, but not gross, negligence. -- this reverses the traditional common law rule to insulate a negligent rescuer from liability -- assume no Good Samaritan law unless it says 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.

IIED (2) The plaintiff must suffer severe emotional distress

P can offer any evidence re ED, not obligatory to prove e.g., that it caused u to miss work, physical symptoms, saw doctor/psych - up to jury to determine if sufficiently severe on exam: eliminate the element by telling us the element is missing by saying something contrary to the element exists ex: paragraph re Dave's conduct, then at end say, "Marry was mildly annoyed by these antics, so she sued Dave for IIED" - mildly annoyed = NOT severely distressed. can't be mild and sever at same time - stipulating state of affairs that negates the thing Marry has to prove ex: "John secretly lived there for the next 20 years" = bar telling us open & notorious element missing for adverse possession

hypo: 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?

P is not entitled to relief. steps: did D physically injure P? NO - not a regular negligence case. - emotional case, so muse fall into 1 of 3 pure emotional distress cases not near miss case: no risk of physical harm not bystander case: no 3p got hurt only option: business relationship - problem: P and D were never in a business relationship. - P and D were unrelated - had no commercial or previous relationship = P is out of luck

hypo: D taps P on the shoulder and asks, "Do you know where the restroom is located?" P has a phobia of being tapped on the shoulder. P has a panic attack and sues D for battery. Will P recover in a lawsuit against D for the claim of battery?

P will not win because thats normal human interaction conduct (2) bodily contact - clearly intentional (not accidental trip and bomb). touched P's person (1) no offensive contact. Q turns on whether contact was offensive/unpermitted by person of ordinary sensitivity here, P has unusual sensitivity (panic attacks), but it doesnt matter - its about what's socially acceptable.

hypo: D is a crop duster who was hired by a farmer to spray his crops with insecticide. The farmer accidentally gave D the wrong parcel number. As a result, D sprayed P's land while P was away instead of the farmer's. P is an organic farmer, so when P discovered that his crops were now covered in chemicals, he realized that the organic supermarkets he sells to would refuse to accept them and that he would have to sell them at much lower prices to conventional supermarkets. P sues D for trespass to land. Will P win?

P will succeed for trespass to land (1) physical invasion of land: by object bc airplane is tangible thing that entered (2) of real property: includes airspace above (3) intent: even tho he didn't violate P's rights on purpose, he went to the land on purpose

3. FALSE IMPRISONMENT (1) Methods of Confinement or Restraint Sufficient acts of restraint include: **tested act of restraint requirement:

Physical barriers - ex: act of locking the door to trap P inside = act of restraint (easy) Physical force directed against the plaintiff, immediate family, or personal property (for example, confiscating the plaintiff's purse) - ex: hold P by their arm or jacket so they can't move (also battery) ____________________________________________ Direct threats of force Indirect or implied threats of force --dont need a physical barrier - credible threat is sufficient to constitute restraint (if u leave room, ill shoot u) --threat has to be plausible - extreme hypersensitivity of P is ignored (if u leave room, ill be sad - doesn't matter that P felt obliged to stay in room bc hyper compassionate) Failure to release the plaintiff when under a legal duty to do so (for example, a taxi driver refusing to let a customer out) --failure to act/omission can be restraint if legal duty - ex: P has a physical disability that requires the use of a wheelchair. She is assisted in boarding an airplane by an airline employee. After the flight lands, the other passengers exit the plane, but the crew does nothing to help P exit. This is an act of restraint. (even tho they dont lock the door or threaten her - their omission to get wheelchair is the act of restraint bc they had a pre-existing duty) Invalid use of legal authority (for example, false arrest)

1. BATTERY (2) 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). Plaintiff's Person Plaintiff's person includes:

Plaintiff's person includes: anything connected to the plaintiff (for example, clothing or a purse). **bar loves this trick - on P's person includes anything P is touching or holdings even if they don't touch ur body (aka "extended personality" rule)

RPP example: D is stressed about leaving for his trip, Uber is already waiting outside, D is trying to pack and in a frenzy and decides to leave for a week. D comes home and finds a cat skeleton - forgot to leave his cat food. RPP would never do this. what if someone is developmentally disabled: are they held to RPP standard?

RPP would never spray lighter fluid on a lit charcoal fire yes, developmentally disabled is held to RPP standard - same for drunks, amateurs = all have to behave like RPP **on exam: we will see people that are clumsy, didn't read manual, doing activity they used to do but forgot how to do, stoned people, drunk people. wrong answer = not liable bc doing the best they can.

5. TRESPASS TO LAND (2) Real Property (Land) Real property includes not only the surface, but also:

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 permission, the tenant has a claim against you, not the landlord. **trick: land includes air above and soil beneath property out to a reasonable distance ex: airplanes 35k feet in sky fly above a reasonable distance = no trespass cf: 12 year old boy throws ball through someone's backyard and it sails through open air and lands on public street on other side. home owner has valid claim of trespass (even tho only recover nominal damages)

Negligence (2) What is the applicable standard of care? what is the DEFAULT STANDARD OF CARE? ("plain vanilla standard") **applies as default unless displaced by alternative std.

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 (D) would do. - A defendant's mental deficiencies and inexperience are not taken into account (in other words, low intelligence is no excuse). --> no allowances for D's shortcomings - standard is inflexible and harsh **you owe the same amount of care that would've been exercised by a reasonably hypothetical reasonably prudent person acting under the same circumstances **squishy - ultimate jury question **RPP has the attributes that the legal system gives it: - no physical attributes (it has no height, weight, age, race, hair color) - it has behavioral/character traits (major buzz kill - too alert, too cautious)

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (prof calls this the 6th SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT)

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. *in normal Physical Injury cases, P is compensated for emotional pain and suffering NIED: cases were D's negligent action caused NO physical harm to the plaintiff "Pure emotional distress cases" -- to recover, P must show extra elements.

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.

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 privilege 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 privilege (for example, neces- sity) 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. **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 threatened.

Negligence (2) What is the applicable standard of care? RPP Exception #2 for Physical Characteristics Where Relevant where relevant, include the D's physical characteristics

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). if D is 6 foot 8 and height is relevant, PRR becomes 6 foot 8 person **physical characteristics are frequently irrelevant: blind people, deaf people, and tall people should know not to store gas-soaked rags in summer. characteristic is not relevant.

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 or borrowing something/bailment), 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.

TRESPASS TO CHATTELS & CONVERSION what are the Two Types of Interference with someone's personal property?

The interference may either be: (1) an intermeddling =directly damaging the chattel (bend, scratch, break, rip, crush, throw it) (2) a dispossession = depriving the plaintiff of their lawful right of possession of the chattel (stealing, robbing laptop when P not looking)

5. TRESPASS TO LAND (1) Physical Invasion what are the 2 methods of physical invasion:

The invasion may be (1) by a person or (2) by object 1. by person - D enters the property on foot, in vehicle, etc. (obvious) **still trespass if D is unaware he passed a boundary land and unaware on someone else's land -- only intent required is getting to the location by some deliberate act (got there on purpose). dont need to act in purposeful defiance of people's boundary lines ex: Don hiking in state public park. he comes to a fork and bears right. he is now on private property owned by farmer Pete. even tho no fence, gate, signage, or boundary mark --> D is still liable even tho the hiking trail was misleading **not strict liability tort: ex: heart attacked D falls on their front lawn. he didn't deliberately go to that location, so no trespass. ex: horse panics when startled and gallops onto Blackacre against D's wishes = not trespass. idea: burden not on landowners to mark their property. burden on person moving in society to know if they have the right to walk on a given path.

what is the 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 presumption of duty and breach of duty. In contrast, even though violation of the applicable statute may be negligence, compliance with the statute will not necessarily establish due care.

SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT (3) POSSESSORS OF LAND/real estate what do the 4 premises liability standards of care depend on? real estate could be: field, farm, building, commercial/residential building **Possessor not always owner (ex: I rent apartment, I am possessor, I owe the standard of care)

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. ____ -- duty owed to those who come on the property to protect from dangerous conditions -- standard of care depends on the status of the entrant. - cf. if someone comes onto land and is injured by activities being conducted on real estate/land = use RPP standard of care (owner burns guest with coffee) TIP: MBE questions testing the distinction between licensees and invitees will specify that the jurisdiction follows the traditional rules for land possessor liability.

SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT (3) POSSESSORS OF LAND/real estate standard 1. Unknown Trespassers

Unknown Trespasser: someone who comes on land without the permission of the possessor; possessor doesn't know they are there rule: No duty is owed to an undiscovered trespasser. - doesn't need to take any precautions to protect Unknown Trespasser - Unknown Trespasser always loses negligence claim (analogous to an unforeseeable victim - no duty owed to them "who the hell are you")

DEFENSES TO INTENTIONAL TORTS 1. CONSENT The plaintiff's consent to the defendant's conduct is a defense, but the majority view is that one cannot consent to a criminal act. Any consent fact pattern raises two questions:

Was there a valid consent? Did the defendant stay within the boundaries of the consent?

IIED: 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. 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, it should be chosen over this alternative.

Effect of Res Ipsa Loquitur

Where res ipsa loquitur is established, the plaintiff has made a prima facie case and no directed verdict may be given for the defendant. The plaintiff can still lose, however, if the inference of negligence is rejected by the trier of fact. **no directed verdict, buttery still free to come out either way **res ipsa does NOT mean P wins automatically

Negligence (2) What is the applicable standard of care? RPP Exception #1 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. standard: hypothetical RPP with same superior skill or knowledge ex: professional race car driver is supposed to use all of his knowledge about controlling a vehicle in a skid - held to higher RPP standard

do we ignore the hypersensitivity of a Plaintiff?

YES, hypersensitivity is IGNORED/disregarded - ignore eccenticities /extreme sensitivities of P - assume P is a reasonable person

1. CONSENT Scope: 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.

all consent has a scope. if u exceed scope, u expose to liability ex: doctor extends operation form 1 party of body to another part of body and does nose job when knee operation.

hypo: D, who was worried about a series of burglaries in her neighborhood, purchased a gun for protection. That evening, P, who was trying to get out of the cold, entered D's garage through an unlocked door. D heard some noise as P began rummaging around for some blankets. She opened the door to the garage with her gun in hand. Pointing it in P's direction in an attempt to frighten P away, she shouted, "Get out or I'll shoot!" and fired what she thought was a warning shot into the ceiling. Unfortunately, the bullet ricocheted and struck P in the shoulder. P sues D for battery. Will P win?

answer: this is a closer call. would be a good essay question. - D meant to place Paul in apprehension of immediate battery (assault). but, it didnt merely scare him, he got shot. - doctrine of transferred intent makes D liable for the battery, even tho it started out as a plan to do assault. - affirmative defense? - defense of property? NO. losing arg: he was a trespasser and I have a right to scare him off my land - not an option bc no use of deadly force to protect property - only option is self-defense: reasonable belief that she was personally exposed to deadly bodily threat. - in many jdx there's a presumption that home intruder poses a deadly threat (presume armed and dangerous unless visible circumstance rules this out) this question turns on whether the garage is part of the dwelling: attached to dwelling, but separated by a door with a lock on it so maybe intruder can't enter living areas - OTOH, treat as home intrusion - OTOH, maybe not.

SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT (4) STATUTORY STANDARDS OF CARE background - what is negligence per se? establishing negligence per se requires what 2 things

background: the 2nd part of the RPP standard is hard for P's - "(1) RPP (2) under the circumstances" - circumstances could be that D's wife was in labor in the backseat of her car u run the red light you get the ticket, the excuse doesn't matter -- negligence per se -- plaintiff "borrows" the criminal statute to become the standard of care in a negligence civil claim instead of the RPP standard -- D's violation of statute establishes duty and breach (with nothing further required by P and no excuse by D allowed) 1) legal: plaintiff asks judge to borrow criminal statute. convince judge the statute is legally appropriate -- see below 2-part test requirements to borrow 2) factual: now, P has to show D violated the statutory command now, P has established negligence per se

BREACH OF DUTY IN NEGLIGENCE 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: - RPP standard - specialized standard of care - CUSTOM OR USAGE - VIOLATION OF STATUTE (negligence per se) - RES IPSA LOQUITUR

breach: concrete, specific behavior by D that falls short of relevant standard of care (factual question) breach can be affirmative act or omission - but must be something concrete breach will be in the facts: "Jon had 8 drinks before driving" -- 8 drinks is the breach if breach is omission: Jon failed to check his tire inflation before road trip **normally not hard to ID the breach - not hidden! caution: on the essay, stay away from cost-benefit analysis unless facts discuss costs of safety precaution (can say this was unreasonable given how cheap the remedy was) alleged breach: failure to refrigerate food. unreasonable because not refrigerating can make food have bacteria that makes people ill -- DON'T DO COST BENEFIT

hypo: Patricia is reading in the library when Dave approaches P's table and sits down. D strokes P's hair, while telling P how much he really likes her. P brings a claim against D for battery. Was this an offensive touching?

conduct not harmful, so Q turns on whether conduct was offensive. would an ordinary person not permit the kind of contact, or would they be cool with it? its unpermitted. when you pet strangers on the street, legal liability for battery.

hypo: D owns and manages an apartment building in an upscale and generally safe neighborhood of a large city. There is a garage that is part of the apartment building and a door that leads from the garage out to the street. The door is designed to be opened only from the inside so you can exit out to the street, but it is not supposed to be opened from the street. However, D unreasonably failed to maintain the door. As a result, the door was able to be opened from the street side. One evening P, who does not live in the building, is walking down the street when she is accosted by a mugger. The mugger, not wanting to commit a crime in plain view on the street, tries the door and is able to open it. He drags P through the door and into D's apartment garage where he robs her, and then flees. P sues D for negligence, citing their poor maintenance of the garage door. Did D owe P a duty of care?

held: not owed a duty of care bc not in zone of danger and not foreseeable victim - out in left field/too far away only foreseeable were residents/tenants - likely victims who might be robbed/burglarized as a result of the defective door **Prof's important fact: building was in safe neighborhood. if neighborhood was crime infested or dangerous, it would be more foreseeable that passers by could be robbed in the garage. influenced the court that no similar instances of this on any occasion OTOH: can argue was in zone of danger bc physically right next to apt building at the time the crime took place conclusion: this is more of an essay question. given credit for analysis and identify its a zone of danger question MC answer: P will only be permitted to recover if jury finds she was in the zone of danger/a foreseeable plaintiff

NIED case type #3: SPECIAL RELATIONSHIP BETWEEN PLAINTIFF AND DEFENDANT - business relationship P can recover if:

highly foreseeable that careless performance by D will produce emotional distress **vague criteria The defendant may be liable for directly causing the plaintiff 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 negligence 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.

what count's as the physical scope of zone of danger ("near you") depends on the nature of the activity: walking and texting? driving car and texting?

if walking down street texting, people within radius of you on same side of street. = foreseeable/zone of danger -- NOT people on other side of street driving and texting: owe a duty to people on both sides of the street **on bar, if person "way out in left field" is hurt = not in zone of danger

Intent

intent: acting with desire to produce the legally forbidden consequence ex: tort is for false imprisonment. forbidden consequence is confinement. if D desired to cause confinement, that shows intent for false imprisonment ex: for IIED, the intent would be desire to bum someone out

let's say RPP inspects every 3 months, if something happens between the 3 months D isn't liable. depends on the nature of the property. if not dangerous (school classroom) less inspection is needed. reasonable interval of inspection depends on:

look at what other similar property owners do

are there any incapacity defense for intentional torts?

no! no incapacity defenses for intentional torts ex: incapacity of being a child (a 10 year old). minor lacks capacity for contract. but if a 10 year old kicks u in the leg u can sue and win in torts. --insane people are liable for their intentional torts --developmentally disabled liable for intentional torts --intentionally intoxicated people are liable or intentional torts wrong answer: D is not liable bc he lacked legal capacity

hypo: D goes to work unaware of a slow gas leak from the stove in her kitchen. That evening, when she returns to her apartment, she is very stressed, so to relax she decided she would like to smoke some marijuana. When she lights the joint there is an explosion from the gas leak which blows out the wall of the apartment and damages the furniture of D's neighbor, Patty. Marijuana is illegal in this state. P sues D for negligence. Can P use the criminal statute regarding marijuana possession as the standard of care?

no, cannot use the statute bc it fails both prongs of the 2-part test (1) what risk is criminalization of marijuana possession supposed to protect against? -- not good for younger people's brains -- gateway drug narrative -- historical discrimination --> whatever the theory is, the one risk it was not meant to prevent was the risk of blowing up their apartment (2) who are the class of persons the statute is seeking to protect? -- seeking to protect the users of the harmful affect to them, NOT the neighbors NOTE: **this happens to fail both prongs of the 2 part test, but failing 1 prong is sufficient to fail the legal test **if statutory standard of care does not apply (i.e., fails 1 prong), use RPP standard of care -- no penalty for trying and failing to borrow the statute, just go back to the default. Here, strong case for winning even under RPP: RPP doesn't smell gas and decide to light a match.

TRESPASS TO CHATTELS & CONVERSION how to distinguish them?

only task: distinguish between two causes of action. distinction turns on the degree of interference. 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. -- if interference is slight/minor harm = COA is trespass to chattels (ex: key someone's car) --big harm = COA is conversion (entitled to full FMV of item). conversion operates as a forced sale. you break it you buy it (ex: slash tires, smash windshield) 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.

(1) reasonable apprehension the unloaded gun problem ex: D is threatening to commit a battery, but cannot actually complete the battery. D threatens to shoot P at robbery, but the gun is empty so it's an empty threat. is this an assault?

since reasonable apprehension turns on what P knows - we have to go into P's head. if P knows guns unloaded = no potential battery = no assault if P knows bullets in gun = would be battery = assault what if P has no info - it is sufficient to make out assault if someone in P's position would reasonably expect/anticipate a battery to happen - don't have to know with certainty. **this is what it means for apprehension to have to be reasonable Apparent Ability Sufficient: If the defendant has the apparent ability to commit a battery, this will be enough to cause a reasonable apprehension.

2. PROTECTIVE PRIVILEGES (3) reasonable force requirement: **analogous to scope of consent doctrine

the amount of force one can use when 2 preconditions are met is only the force necessary under the circumstances rule of proportionality - can fight fire with fire. - can't stab someone about to slap you -- no overreaction, must be proportional - if deadly force coming at u, u can use deadly force. not criminally or civilly liable. what if option to run away (retreat)? - majority rule: no requirement to retreat, you are allowed to stand your ground. --> no use of deadly force to protect property (real or personal) - u may run after thief, tackle them, wrestle item away from them under defense of property, but cannot shoot person even if laptop has CIA info - can't use deadly devices/traps to protect your property (no shotgun trap)

2. PROTECTIVE PRIVILEGES (1) timing requirement: proper timing

there must be a perceived threat coming from the plaintiff then think about proper timing: in progress or imminent (about to happen in a few seconds) --> real time reaction in heat of the moment BAR: response comes too soon, response comes to late = no defense. ex: P says to D "tomorrow after work imma beat u." then D punches him in the face right there. D engaged in premature action. no self-defense to battery --no preemptive action --> too soon ex: with no provocation, random person slaps D in the face then walks away. D is mad and runs after them and tackles them too late.

SPECIAL NEGLIGENCE DUTIES BASED ON TYPE OF DEFENDANT **tested! (1) CHILDREN what's the exception re adult activities?

under age 5: no standard of care owed. cannot be held liable for negligence --> A child under five is usually without the capacity to be negligent. age 5-18: children are held to standard of hypothetical child of similar age, experience, and intelligence acting under similar circumstances. This is a subjective test. - opposite of RPP standard - pro-defendant standard (flexible) - if 100 kids in the room, each kid will have a different standard of care. with adults, all have the same standard of care (RPP) ex: age: 5 year old runs over girls finger with bike. he just started on bike from tricycle (bicycle virgin) and he's stupid --> std: must operate his bike as good as a stupid 5 year old who's never ridden a bike before. Susie can only prevail if D road worse than that (D friendly std.) exception: Children engaged in potentially dangerous adult activities may be required to conform to an "adult" standard of care. --> back to RPP standard --adult activities = operating a motorized vehicle (including farm equipment, tractor, combine, jet skis, snow mobiles)

summary of his sayings: premises liability 4-part system

unknown trespasser: no duty known trespasser: known, man-made death traps licensee: all known traps invitee: all reasonably known traps

1. CONSENT (1) Express (Actual) Consent: what are the exceptions that make consent void?

words giving permission -- D is not liable if P expressly consents to the defendant's conduct [easy] **express consent will defeat the claim if given by someone with capacity oral consent: P tells Jennifer to open unlocked door then sues her for trespassing into her apartment. P loses bc express grant of permission: "its open come in" written consent: signing consent form in hospital. not battery to cut person open bc express consent. Exceptions: (1) mistake will undo express consent if the defendant knew of and took advantage of the mistake; (2) consent induced by fraud will be invalidated if it goes to an essential matter, but not a collateral matter; and (ex: person at door impersonates Jennifer when knocking, u consent to Jennifer entering, not the creep) (3) consent obtained by duress will be invalidated unless the duress is only threats of future action or future economic deprivation. (ex: coerced into giving consent)

battery: **remember, contact need not be instantaneous - contact can take place after a delay ex: workplace, all EEs can leave lunch in fridge. D puts poison in Ps PB&J sandwich, rewraps it and puts it back. P gets sick.has this been a harmful contact?

yes - contact of poison on P's mouth --> doesn't have to be instant punch or spit in the face, it can happen after the delay

hypo: P and D are playing tennis. D runs towards P swinging her tennis racket intending to scare P. As she nears P, D slips and the racket injures P. Does P have a valid battery claim against D? Billie Jean and Bobby are playing tennis. Every time Billie Jean is getting ready to serve, Bobby heckles her. After this had gone on for a while, Billie Jean trotted across the court rapidly and began swinging her racket wildly as she approached Bobby, in order to scare him. As she neared Bobby she slipped and the racket struck Bobby forcefully on his arm, breaking a bone. Billie Jean slipped because the owner of the tennis club had carelessly failed to clean some grease off of the court. ​Does Bobby have a valid battery claim against Billie Jean? Why or why not?

yes - good claim because of transferred intent doctrine. Is situation where D committed one of the torts we've covered? yes, all elements for assault - (1) intent to make P think she was about to be hit, (2) reasonable apprehension (menacing conduct, P sees D approaching, P doesnt know D not going to hit), of (3) immediate battery and (4) causation - then she slips and accidentally breaks P's harm. lay person = accident. law = transferred intent scare tactic went wrong, so evil intent transfers over.