Torts Study Guide for Final Exam

Carveouts: By Contract

There is a duty to perform contractual obligations with due care.

Lack of Consent

There is no battery if the plaintiff consented to the act, either expressly or by virtue of participating in a particular event or situation (such as being bumped on a crowded subway or playing in a football game). See § II.A. Consent, infra.

Sub-rule: Interference

The defendant interferes with the plaintiff's chattel by exercising dominion or control over it. Examples of acts of conversion include wrongfully acquiring, transferring, or detaining; substantially changing; severely damaging or destroying; or misusing the chattel. Note that if the original acquisition of the chattel was not wrongful, then the plaintiff must demand the return of the chattel before she sues for conversion.

Custom: Physicians

1) Local versus national standard Traditionally, physicians were held to the "same or similar locale" rule of custom: did the physician's actions comport with those customarily employed by doctors in the same locale or in similar localities? While some jurisdictions have retained the traditional rule, the majority of jurisdictions now apply a national standard to physicians, including physicians who are specialists. 2) Informed consent Physicians are under a specific obligation to explain the risks of a medical procedure to a patient in advance of a patient's decision to consent to treatment. Failure to comply with this "informed consent" doctrine constitutes a breach of the physician's duty owed to the patient and is actionable as medical malpractice (medical negligence). A majority of jurisdictions hold that the required level of disclosure of risks is governed by custom among medical practitioners. However, a significant minority holds that the physician must disclose any "material risk"; that is, any risk that might make a difference to a reasonable person in deciding whether to proceed with the surgery or other medical treatment. Doctors are not under an obligation to disclose when: i) The risk is a commonly known risk; ii) The patient is unconscious or otherwise incapable of giving consent (e.g., emergency treatment); iii) The patient waives or refuses the information; iv) The patient is incompetent (although the physician must make a reasonable attempt to secure informed consent from a guardian); or v) The disclosure would be detrimental to the patient (e.g., would upset the patient enough to cause extreme illness, such as a heart attack).

Distinguished from trespass

1) Physical invasion Trespass requires a physical invasion of the plaintiff's property. Nuisance does not require physical invasion, but physical invasion may constitute a nuisance. Example: If the defendant's factory emits particulates that settle on the plaintiff's property, then the defendant may be liable for both trespass and private nuisance. 2) Substantial interference Private nuisance requires substantial interference with the plaintiff's use and enjoyment of her property. Trespass, however, does not require a substantial intrusion. Example: A defendant's merely walking onto the plaintiff's land, if unprivileged and not consented to, is a trespass. 3) Duration Generally, a nuisance is continuous. A trespass may be a one-time event, episodic, or continuous.

Bailors and Bailees

A bailment occurs when a person (the bailee) temporarily takes possession of another's (the bailor's) personal property, such as when a driver leaves his car with a valet. The duty of care that must be exercised by a bailor or bailee varies depending on the type of bailment. 1) Bailor's duty A gratuitous bailor (e.g., the owner of a power saw who lends it without charge to a friend) has a duty to inform the bailee only of known dangerous defects in personal property, but a compensated bailor (e.g., a commercial entity that leases a power saw to a customer) must inform a bailee of defects that are known or should have been known by the bailor had he used reasonable diligence. 2) Bailee's duty When a bailor receives the sole benefit from the bailment, the bailee has a lesser duty to care for the property and is liable only if he has been grossly negligent. In contrast, when a bailee receives the sole benefit from the bailment, he must exercise extraordinary care for the bailor's property. Slight negligence on the bailee's part will result in liability for any injuries to the property from failure to properly care for or use it. In a bailment for mutual benefit, the bailee must take reasonable care of the bailed property.

Breach of Duty: Generally

A breach of duty occurs when the defendant departs from the required standard of care, such as failure to act as a reasonable person, an unexcused violation of a statute, or, if there is no direct evidence, through res ipsa loquitur. There are two approaches for determining negligent conduct (breach of the general standard of care).

Conversion: Elements

A defendant is liable for conversion if he: (1) intentionally (2) commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff's chattel in a manner so serious as to deprive the plaintiff of the use of the chattel. The plaintiff's damages are the chattel's full value at the time of the conversion. Only personal property and intangibles that have been reduced to physical form (e.g., a promissory note) can be converted.

Special Classes of Foreseeable Plaintiffs: Intended Beneficiaries

A defendant is liable to a third-party beneficiary if the legal or business transaction that the beneficiary is a part of is prepared negligently, and the defendant could foresee the harm of completing the transaction.

Battery: Elements

A defendant is liable to the plaintiff for battery when he: i) Causes a harmful or offensive contact with the person of another; and ii) Acts with the intent to cause such contact or the apprehension of such contact.

Carveouts: By Relationship

A defendant with a unique relationship to a plaintiff, such as business proprietor-patron, common carrier-passenger, innkeeper-guest, employer-employee, or parent-child, may have a duty to protect, aid, or assist the plaintiff and to prevent reasonably foreseeable injury to her from third parties.

Physical Characteristics

A defendant's particular physical characteristics (e.g., blindness) are taken into account and the reasonableness of the conduct of a defendant with a physical disability is determined based upon a reasonably careful person with the same disability. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §11 (2010). For example, a blind pedestrian must act as any other reasonable blind person would act under the circumstances.

Standards of Care for Specific Classes of Defendants

A discussion of the traditional standards of care for special defendants follows, but note that the modern trend has been to move away from distinctions in the level of care and instead measure the parties' conduct in light of what is reasonable under the circumstances.

Minority and Third Restatement Approach to Trespassers

A few states now take the approach that land possessors owe trespassers, like all other land entrants, a reasonable standard of care under all the circumstances. Of course, the fact that the land entrant is trespassing, particularly if he is undiscovered, is one fact that the jury may consider in deciding whether the land possessor has exercised reasonable care. The Third Restatement § 52 provides that although a duty of reasonable care is generally owed to trespassers, only the duty not to act in an intentional, willful, or wanton manner to cause physical harm is owed to flagrant trespassers who are not imperiled and unable to protect themselves. A burglar in a home would be a flagrant trespasser, but someone injured while walking in a public park at midnight, despite the presence of a posted notice that the park was closed after dusk, would not be. This distinction has not been widely adopted by the courts.

General Rule: Known and Obvious Dangers

A land possessor must take reasonable precautions for known or obvious dangers when the possessor should anticipate the harm despite such knowledge or obviousness. However, when the danger is open and obvious to the entrant, a warning will ordinarily not provide additional protection against harm. Consequently, if the only purpose of a warning would be to provide notice of a danger that is open and obvious, there is no liability for failing to provide such a warning. In addition, even when a warning is required, an entrant who encounters an obviously dangerous condition and fails to exercise reasonable self-protective care is contributorily negligent.

Invitees: Traditional Approach: Rule

A land possessor owes an invitee the duty of reasonable care, including the duty to use reasonable care to inspect the property, discover unreasonably dangerous conditions, and protect the invitee from them. However, the duty of reasonable care owed to an invitee does not extend beyond the scope of the invitation, and the invitee is treated as a trespasser in areas beyond that scope.

Off-premises victims

A landowner generally does not owe a duty to a person not on the premises (e.g., passerby, owner of adjacent land) who is harmed by a natural condition on the landowner's premises. An exception exists, however, with respect to trees in urban areas. With respect to an artificial condition, the landowner generally owes a duty to prevent an unreasonable risk of harm to persons who are not on the premises. Similarly, with respect to an activity conducted on the premises by the owner or by someone subject to the owner's control, the landowner generally owes a duty of reasonable care to persons who are not on the premises.

Traditional Approach to Trespassers: Overview

A landowner is obligated to refrain from willful, wanton, reckless, or intentional misconduct toward trespassers.

Licensees: Overview

A licensee is someone who enters the land of another with the express or implied permission of the land possessor or with a privilege. Examples of licensees include: i) Social guests—note, they may be "invited," but they are still licensees, not invitees; ii) Those whose presence is tolerated by the land possessor such as children who routinely cut across the land on their way home from school; and iii) Emergency personnel such as police, firefighters, and emergency medical technicians.

Rule regarding intent for children and the mentally incompetent

A majority of courts hold that both children and those who are mentally incompetent can be held liable for intentional torts if they either act with a purpose or know the consequences of their acts with a substantial certainty.

Specific Classes of Foreseeable Plaintiffs: Rescuers

A person who comes to the aid of another is a foreseeable plaintiff. If the defendant negligently puts either the rescued party or the rescuer in danger, then he is liable for the rescuer's injuries. To the extent that a rescuer's efforts are unreasonable, comparative responsibility may reduce the rescuer's recovery, but does not automatically bar it. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 32 (2010). An emergency professional, such as a police officer or firefighter, is barred from recovering damages from the party whose negligence caused the professional's injury if the injury results from a risk inherent in the job ("firefighter's rule").

Carveouts: Placing Another in Peril

A person who places another in peril is under a duty to exercise reasonable care to prevent further harm by rendering care or aid.

Carveouts: Assumption of Duty

A person who voluntarily aids or rescues another has a duty to act with reasonable ordinary care in the performance of that aid or rescue. Note that some states have enacted "Good Samaritan" statutes to protect doctors and other medical personnel when they voluntarily render emergency care. These statutes exempt medical professionals from liability for ordinary negligence; however, they do not exempt them from liability for gross negligence.

Intentional Torts: Elements

A prima facie case for any intentional tort, including those not involving personal injury, must include proof of an (1) act, (2) intent, and (3) causation.

Negligence: Elements

A prima facie case of negligence consists of four elements: i) Duty, the obligation to protect another against unreasonable risk of injury; ii) Breach, the failure to meet that obligation; iii) Causation, a close causal connection between the action and the injury; and iv) Damages, the loss suffered. The plaintiff must establish all four elements of negligence by a preponderance of the evidence.

Private Nuisance: Elements

A private nuisance is a thing or activity that substantially and unreasonably interferes with another individual's use or enjoyment of his land.

Custom: Professionals

A professional person (e.g., doctor, lawyer, or electrician) is expected to exhibit the same skill, knowledge, and care as an ordinary practitioner in the same community. A specialist may be held to a higher standard than a general practitioner because of his superior knowledge. Establishing negligence by a professional person generally requires expert testimony to establish both the applicable standard of care and the defendant's deviation from that standard. However, when the defendant's negligence is so apparent that a layperson can identify it, expert testimony will not be required. See, e.g., Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo. 1984) (Because the standard of care was regarded as within the common knowledge of a layman when the surgeon amputated the wrong leg, no expert testimony was required to establish the standard of care.). With regard to professionals, deviation from the relevant custom is dispositive evidence of a breach. Similarly, compliance with the relevant custom is dispositive evidence that the professional did not breach a duty of care.

Public Nuisance: Definition

A public nuisance is an unreasonable interference with a right common to the general public. (Note: Public nuisance does not necessarily involve land, but it is included in this part of the outline because of its common historical roots with private nuisance.) Typical examples of public nuisance include air pollution, pollution of navigable waterways, interference with the use of public highways, and interference with the public's use of parks or other public property. A private citizen has a claim for public nuisance only if she suffers harm that is different in kindfrom that suffered by members of the general public. In most instances, state statutes or local ordinances specifically declare something to be a public nuisance, such as running a house of ill repute or a disorderly tavern, gambling on Sundays, or growing certain types of thorny bushes. Public authorities can either (i) seek injunctive relief to abate (prevent the continuation of) the public nuisance or (ii) criminally prosecute the defendant.

Carveouts: By Statute That Imposes an obligation to act for the protection of another

A statute that imposes an obligation to act for the protection of another but does not expressly or impliedly create or reject a private cause of action may give rise to an affirmative duty to act.

Substantial interference

A substantial interference is one that would be offensive, inconvenient, or annoying to a normal, reasonable person in the community. A person with special sensitivities can recover only if the average person would be offended, inconvenienced, or annoyed. Conversely, a "thick-skinned" plaintiff who is not offended, inconvenienced, or annoyed is nevertheless entitled to recover if an average reasonable person would be, although the amount of damages may be affected.

Trespassors: Overview

A trespasser is someone who enters or remains upon the land of another without consent or privilege to do so.

Invitees: Traditional Approach: Definition

An invitee is either: i) A public invitee—someone invited to enter or remain on the land for the purposes for which the land is held open to the public; or ii) A business visitor—someone invited to enter or remain on the land for a purpose connected to business dealings with the land possessor.

Appropriate Plaintiffs

Anyone with possessory rights in real property may bring a nuisance claim.

Defenses to Private Nuisance

Apart from challenging the elements of nuisance, the defenses available to a defendant turn on whether the defendant's conduct is intentional, reckless, negligent, or abnormally dangerous. For example, the plaintiff's negligence or assumption of the risk may be a defense to a nuisance (or reduce recovery in a comparative?fault jurisdiction).

Two Approaches: Traditional Approach

Approximately one-half of all jurisdictions continue to follow traditional rules that provide that the standard of care owed to land entrants depends upon the status of the land entrant as an invitee, a licensee, or a trespasser.

Tenant's Liability

As an occupier of land, the tenant continues to be liable for injuries to third parties arising from dangerous conditions within the tenant's control, regardless of whether the land owner has liability.

Liability of Landlord and Tenants: Overview

Because the obligations associated with property are owed by the possessor of the land, a lessee assumes any duty owed by the lessor once the lessee takes possession.

Harmful or Offensive Contact

Contact is harmful when it causes injury, physical impairment, pain, or illness. Contact is offensive when a person of ordinary sensibilities (i.e., a reasonable person) would find the contact offensive (objective test). Note that a defendant may be liable if he is aware that the victim is hypersensitive but proceeds to act nonetheless. In such a case, the fact that a reasonable person would not find the contact offensive is not a defense. The plaintiff need not be aware of the contact when it occurs in order to recover.

Plaintiff's Person

Contact with anything connected to the plaintiff's person qualifies as contact with the plaintiff's person for the purposes of battery (e.g., a person's clothing, a pet held on a leash, a bicycle ridden by the plaintiff).

Two Approaches: Modern Trend

Courts in the other half of jurisdictions (as well as the Third Restatement) require that a standard of reasonable care applies to all land entrants except trespassers, abolishing the distinction between invitees and licensees. (In the case of the Third Restatement, the rule applies to all land entrants except for "flagrant" trespassers (see b.2) Modern and Third Restatement approach, below.) The land possessor must use reasonable care to prevent harm posed by artificial conditions or conduct on the land. As for natural conditions, the general rule is that there is no duty to remove or protect against the condition, although there is an exception for rotting trees in densely populated areas.

Sub-rule: spring-guns and other traps

The use of a spring-gun or other trap set to expose a trespasser to a force likely to inflict death or grievous bodily injury will lead to liability for the land possessor. The land possessor cannot do indirectly what he would be forbidden to do directly (e.g., shoot the trespasser).

Utility of the Defendant's Conduct

Even if the utility of the defendant's conduct outweighs the gravity of the harm, damages (but not injunctive relief) may be available if the harm is serious and the financial burden of compensating for the harm would not make the defendant's continuing conduct unfeasible. In other words, while it may be reasonable for the defendant to engage in the conduct, it is unreasonable for the defendant to do so without paying for the harm done.

Custom: within an industry or community

Evidence of a custom in a community or an industry is admissible as evidence to establish the proper standard of care, but such evidence is not conclusive. The entire community or industry may be negligent.

Remedies for Nuisance: Damages

The usual remedy for nuisance is damages. All resulting harm is recoverable, including damages for reduction in the value of real property, personal injury, and harm to personal property.

False Imprisonment: Elements

False imprisonment results when a defendant acts: i) Intending to confine or restrain the plaintiff within boundaries fixed by the defendant; ii) Those actions directly or indirectly result in such confinement; and iii) The plaintiff is conscious of the confinement or is harmed by it.

Special Classes of Foreseeable Plaintiffs: Fetuses

Fetuses are owed a duty of care if they are viable at the time that the injury occurred. See § IV.G.4. "Wrongful Life" and "Wrongful Birth" Claims, infra.

Access to Light

Historically, courts have refused to find the obstruction of sunlight as creating a private nuisance.

Injunctive Relief

If monetary damages are inadequate and the nuisance would otherwise continue, then courts may grant injunctive relief. In determining whether an injunction is appropriate, the courts will "balance the equities"; that is, weigh the social utility of the defendant's conduct against the harm caused to the plaintiff and others. However, the court need not consider the relative hardships if the defendant's sole purpose was to cause harm to the plaintiff or to violate the common standards of decency (sometimes called a "spite nuisance").

Continuing Nuisance

If the nuisance is a continuing one and the court deems it "permanent," then the court will award the plaintiff all past and future damages, which prevents plaintiffs from returning to the court to collect damages in the future. Occasionally, courts award temporary damages measured by the damages that have occurred prior to trial and within the statute of limitations. In these instances, plaintiffs may return to the court in the future to collect additional temporary damages if the nuisance continues.

Sub-rule: Duty

In general, a duty of care is owed to all foreseeable persons who may foreseeably be injured by the defendant's failure to act as a reasonable person of ordinary prudence under the circumstances. Generally, there is no duty to act affirmatively, even if the failure to act appears to be unreasonable. (See § IV.B.4. Affirmative Duty to Act, below.)

Possessors of Land: Duty Owed

In general, possessors of land owe a duty only to those within the boundaries of their land. The duty to entrants on the land includes: i) Conduct by the land possessor that creates risks; ii) Artificial conditions on the land; iii) Natural conditions on the land; and iv) Risks created when any of the affirmative duties discussed in § IV.B.4. Affirmative Duty to Act, supra, are applicable.

Affirmative Duty to Act: General rule

In general, there is no affirmative duty to act. However, a duty is imposed in the following situations.

Sub-rule: Standard of Care: RPP

In most cases, the standard of care imposed is that of a reasonably prudent person under the circumstances. This standard is an objective one, measured by what a reasonably prudent person would do, rather than whether a particular defendant is acting in good faith or using her best efforts. A defendant is required to exercise the care that a reasonable person under the same circumstances (i.e., in her position, with her information and competence) would recognize as necessary to avoid or prevent an unreasonable risk of harm to another person.

Automobile Drivers

In most jurisdictions, automobile drivers owe ordinary care to their guests as well as their passengers (those who confer an economic benefit for the ride). However, a minority of jurisdictions distinguish between the two with "guest statutes," which impose only a duty to refrain from gross or wanton and willful misconduct with a guest in the car. Proof of simple negligence by the driver will not result in recovery by the plaintiff-guest.

Recreational Land Use

In some jurisdictions, a land possessor who opens his land to the public for recreational purposes is not liable for injuries sustained by recreational land users so long as he does not charge a fee for the use of his land, unless the landowner acts willfully and maliciously or, in some jurisdictions, with gross negligence.

Intoxication

Intoxicated individuals are held to the same standards as sober individuals unless their intoxication was involuntary.

Coming to the Nuisance

It is generally not a defense that the plaintiff "came to the nuisance" by purchasing property in the vicinity of the defendant's premises with knowledge of the nuisance operated by the defendant. However, the fact that the plaintiff moved to the nuisance is not irrelevant; it may be considered by the jury in determining whether the plaintiff can recover for the nuisance. In other words, the plaintiff's coming to the nuisance does not entitle the defendant to judgment as a matter of law, but it is evidence that the jury may consider. Conversely, ownership of land prior to the defendant's entry into the neighborhood will not, by itself, make the defendant's action a nuisance. The test is whether the defendant's action is unreasonable.

Sub-rule: Damages

It is not necessary to prove actual damages (except when the plaintiff is unaware of the confinement). Punitive damages may be imposed in appropriate cases.

Sub-rule: Undiscovered trespassers

Land possessors generally owe no duty to undiscovered trespassers, nor do they have a duty to inspect their property for evidence of trespassers.

Sub-rule: Discovered trespassers

Land possessors owe a duty toward discovered or anticipated trespassers to warn or protect them from concealed, dangerous, artificial conditions. There is no duty to warn of natural conditions or artificial conditions that do not involve risk of death or serious bodily harm. Land possessors also have a duty to use reasonable care while conducting activities on their land, as well as to control the activities of third parties on their property. When a land possessor should reasonably know that trespassers are consistently entering his land (e.g., frequent trespassers using a footpath to cut across the corner of the property), the possessor owes a duty to the anticipated trespasser, regardless of the land possessor's actual knowledge of the trespasser's presence.

Traditional Approach

Most courts determine breach of the standard of care by comparing the defendant's conduct with what a reasonably prudent person under the circumstances would or would not have done (applying an objective standard).

Turning to negligence: Definition

Negligence is conduct (the commission of an act or failure to act), without wrongful intent, that falls below the minimum degree of ordinary care imposed by law to protect others against unreasonable risk of harm.

Damages

No proof of actual harm is required; the plaintiff may recover nominal damages even though no actual damage occurred (to vindicate his right to physical autonomy). Many states allow recovery of punitive damages if the defendant acted outrageously or with malice (i.e., a wrongful motive, or a conscious or deliberate disregard of a high probability of harm). See § IV.F.7. Punitive Damages, infra. Under the thin-skull rule (also known as the "eggshell-plaintiff" rule), the defendant is not required to foresee the extent of damages in order to be held liable for all damages.

Carveouts: By Authority

One with actual ability and authority to control another, such as parent over child and employer over employee, has an affirmative duty to exercise reasonable control. Generally, this duty is imposed upon the defendant when the defendant knows or should know that the third person is apt to commit the injuring act.

Custom: Safety code

Safety codes promulgated by industries, associations, and government bodies for the guidance of operations within their respective fields of interest are admissible to prove custom.

Sellers of Real Property

Sellers of real property owe a duty to disclose to buyers those concealed and unreasonably dangerous conditions known to the seller. These are conditions that the buyer is unlikely to discover upon reasonable inspection. The seller's liability to third parties continues until the buyer has a reasonable opportunity, through maintenance and inspection, to discover and remedy the defect.

Sub-Rule: Act

The act must be voluntary, meaning that the defendant must have directed the physical muscular movement.

Causation

The act must in fact result in contact of a harmful or offensive nature. A defendant who sets in motion a chain of events that causes contact with the plaintiff, whether the contact is direct or indirect, is liable (e.g., a tripwire set by the defendant that causes the plaintiff to fall).

Emergency Situations

The applicable standard of care in an emergency is that of a reasonable person in the same situation. In other words, less may be expected of the reasonably prudent person who is forced to act in an emergency, but only if the defendant's conduct did not cause the emergency.

Sub-rule: Intent

The defendant acts intentionally if: i) He acts with the purpose of causing the consequences of his act; or ii) He acts knowing that the consequence is substantially certain to result. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 1 (2010).

Sub-rule: Methods of confinement

The defendant may confine or restrain the plaintiff by the use of physical barriers, physical force, direct or indirect threats (to the plaintiff, a third party, or the plaintiff's property), or by the invalid use of legal authority, duress, or the failure to provide a reasonable means of safe escape. Shopkeeper's Privilege: A shopkeeper's reasonable (in both duration and manner) detention of a suspected shoplifter is not an invalid use of authority and hence is not a false imprisonment. Furthermore, a court may find that the defendant has confined the plaintiff when he has refused to perform a duty to release the plaintiff from an existing confinement or provide a means of escape. Example: If a child accidentally locks herself in a restroom in a restaurant, the restaurant may be liable if it intentionally fails to assist her in unlocking the door to obtain her release. The defendant's use of moral pressure or future threats does not constitute confinement or restraint. The plaintiff is not imprisoned if she submitted willingly to confinement.

Sub-rule: Intent

The defendant must act with the purpose of confining the plaintiff or act knowing that the plaintiff's confinement is substantially certain to result. If the confinement is due to the defendant's negligence rather than his intentional acts, then the defendant may be liable under the rules governing negligence but not under the intentional tort of false imprisonment. If the imprisonment occurs by pure accident and involves neither the defendant's intent nor his negligence, then there is no recovery. The doctrine of transferred intent applies to false imprisonment.

Sub-rule: Intent

The defendant must only intend to commit the act that interferes; intent to cause damage is not necessary. Mistake of law or fact is no defense (e.g., a purchaser of stolen goods is liable to the rightful owner). Transferred intent does not apply to conversion. The defendant must have intended to exercise control over the particular piece of property. Accidentally damaging the plaintiff's chattel is not conversion if the defendant had permission to use the property.

Regulatory Compliance

The fact that a defendant complies with a statute, local ordinance, or administrative regulation is not a complete defense to a nuisance action. However, such statutory or regulatory compliance may be admitted as evidence as to whether the interference with the plaintiff's use and enjoyment of her land is unreasonable. For example, zoning regulations are typically regarded as admissible evidence in actions for nuisance, but they are not determinative.

Unreasonable interference

The interference is unreasonable if the injury caused by the defendant outweighs the usefulness of his actions.

Nature of the Defendant's Conduct

The interference must be intentional, negligent, reckless, or the result of abnormally dangerous conduct to constitute nuisance.

Traditional Rule: Licensees

The land possessor has a duty to either correct or warn a licensee of concealed dangersthat are either known to the land possessor or that should be obvious to her. The land possessor does not have a duty to inspect for dangers. In addition, the land possessor must exercise reasonable care in conducting activities on the land.

Non-delegable duty

The land possessor's duty to invitees is a non-delegable duty. For example, even if a store owner hires an independent contractor to maintain the escalator in her store, she will remain liable if the contractor negligently fails to properly maintain the escalator. This same principle of non-delegable duty applies under the modern approach (see 5.a.2) Modern Trend, above), under which the land possessor owes most land visitors a duty of reasonable care.

Landlord's liability

The landlord remains liable for injuries to the tenant and others occurring: i) In common areas such as parking lots, stairwells, lobbies, and hallways; ii) As a result of hidden dangers about which the landlord fails to warn the tenant; iii) On premises leased for public use; iv) As a result of a hazard caused by the landlord's negligent repair; or v) Involving a hazard that the landlord has agreed to repair.

Applying principles derived from the law of private nuisance

The law of public nuisance is extremely vague and varies greatly from one jurisdiction to another. However, the modern trend is to transpose much of the law governing private nuisance onto the law of public nuisance, including the required nature of a defendant's conduct and available defenses.

Sub-rule: Time

The length of time of the confinement or restraint is immaterial, except as to the determination of the extent of damages.

Foreseeability of the plaintiff: Majority rule

The majority rule is that a duty of care is owed to the plaintiff only if she is a member of the class of persons who might be foreseeably harmed (sometimes called "foreseeable plaintiffs") as a result of the defendant's negligent conduct. According to Judge Cardozo's majority opinion in Palsgraf v. Long Island R. R. Co., 162 N.E. 99 (N.Y. 1928), the defendant is liable only to plaintiffs who are within the zone of foreseeable harm.

Foreseeability of the plaintiff: Minority rule

The minority view (and the Restatement approach), articulated in Judge Andrews's minority opinion in Palsgraf, states that if the defendant can foresee harm to anyone as a result of his negligence, then a duty is owed to everyone (foreseeable or not) harmed as a result of his breach. The issue of whether the plaintiff is foreseeable is reserved for proximate cause. See § IV.E.3. Proximate Cause, infra. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §29 cmt. n (2010).

Cost-benefit analysis

The modern trend and the Third Restatement approach set out the primary factors to consider in determining whether the defendant has acted in accordance with the standard of care as follows: i) The foreseeable likelihood that the defendant's conduct would cause harm; ii) The foreseeable severity of any resulting harm; and iii) The defendant's burden (costs or other disadvantages) in avoiding the harm. The Third Restatement defines negligence using these terms rather than the reasonably prudent person standard. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 3.

Damages

The plaintiff may recover damages in the amount of the full value of the converted property at the time of the conversion. Alternatively, the plaintiff may bring an action for replevin to recover the chattel.

Sub-rule: Confined within Boundaries

The plaintiff must be confined within a bounded area in which the plaintiff's freedom of movement in all directions is limited. The bounded area may be large and need not be stationary. An area is not bounded if there is a reasonable means of safe escape.

Special Classes of Foreseeable Plaintiffs: Anticipated Victim of a Crime

The special relationship between a psychotherapist and a patient can impose upon the therapist an affirmative duty to act to protect a third party. Generally, a psychotherapist owes a duty only to her patient. For example, a psychiatrist who fails to correctly diagnose a suicidal patient is liable only to the patient if the patient commits suicide. However, when a patient has made credible threats of physical violence against a third party, the psychotherapist has a duty to warn the intended victim. Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976). The threat must be a serious threat of physical violence against an ascertainable intended victim, determined by the objective standard of a reasonable psychotherapist in the same circumstance.

Negligence per se: Overview

The standard of care can sometimes be determined by statute. In most jurisdictions, the violation of such a statute establishes negligence as a matter of law (a conclusive presumption as to duty and breach). A minority of jurisdictions hold that violation of the statute is merely evidence of negligence (a rebuttable presumption as to duty and breach).

Children

The standard of care imposed upon a child is that of a reasonable child of similar age, intelligence, and experience. Unlike the objective standard applied to adult defendants in negligence actions, the standard applicable to minors is more subjective in nature because children are unable to appreciate the same risks as an adult. However, a child engaged in a high-risk activity that is characteristically undertaken by adults, such as driving a car, is held to the same standard as an adult. Courts regard children of a particularly young age as incapable of negligent conduct. Under the Third Restatement, children under the age of five are generally incapable of negligent conduct. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 10 (2010).

Possessors of Land: Overview

The term "possessors of land" includes owners, tenants, those in adverse possession, and others in possession of land. The fact that a plaintiff is injured while on someone else's land does not affect the liability of a defendant other than the land possessor. Only land possessors are protected by the rules limiting liability to trespassers or licensees. Everyone else—for example, easement holders (e.g., a utility company with power lines on the land) or those licensed to use the land (e.g., hunters)—must exercise reasonable care to protect the trespasser or the licensee.

Intent

To act intentionally, a defendant must act with either (i) the purpose of bringing about the consequences of that act or (ii) the knowledge that the consequences are substantially certain to occur. Depending on the jurisdiction and the factual context, a defendant may be liable if he intends merely to bring about the contact. In many jurisdictions, while the contact must be harmful or offensive, the defendant need not intend that result (single-intent rule). In other jurisdictions, a defendant may be required not only to intend to bring about a contact, but also to intend that the contact be harmful or offensive (dual-intent rule). Although the few jurisdictions that have addressed this issue directly are divided, a majority of jurisdictions appear to prefer the single-intent rule. The doctrine of transferred intent applies to battery.

Huge note bene:

Transferred intent applies only to the following intentional torts: battery, assault, false imprisonment, trespass to chattels, and trespass to land. It generally does not apply to intentional infliction of emotional distress or conversion.

Rule regarding transferred intent

Transferred intent exists when a person intends to commit an intentional tort against one person but instead commits: i) A different intentional tort against that person; ii) The intended tort against a different person; or iii) A different intentional tort against a different person.

The Attractive Nuisance Doctrine

Under the "attractive nuisance" doctrine, a land possessor may be liable for injuries to children trespassing on the land if: i) An artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass; ii) The land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children; iii) The children, because of their youth, do not discover or cannot appreciate the danger presented by the condition; iv) The utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to children; and v) The land possessor fails to exercise reasonable care to protect children from the harm. Restatement (Second) of Torts § 339 (1965).

Common carriers and innkeepers

Under the common law, a majority of jurisdictions held both common carriers (e.g., planes, trains, buses) and innkeepers to the highest duty of care consistent with the practical operation of the business. Under this approach, common carriers and innkeepers could be held liable for "slight negligence." A majority of courts continue to hold common carriers to this higher standard. However, most courts today hold that an innkeeper (hotel operator) is liable only for ordinary negligence. Note, however, that the Third Restatement approach is slightly different: common carriers and innkeepers are treated alike and must exercise reasonable care toward their passengers and guests. Although generally there is no affirmative duty to act, common carriers and innkeepers have a duty to act based upon the special relationship they have with their customers. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 40 (2010).

Mental and emotional characteristics

Under this standard, the defendant is presumed to have average mental abilities and the same knowledge as an average member of the community. The defendant's own mental or emotional disability is not considered in determining whether his conduct is negligent, unless the defendant is a child. In other words, a mentally disabled person is held to the standard of someone of ordinary intelligence and knowledge. Most courts hold that if a defendant possesses special skills or knowledge, she is held to a higher standard, i.e., she must exercise her superior competence with reasonable attention and care.

Note bene

When analyzing answer choices to negligence questions, look for the threshold elements. For instance, if there is no duty, then you can dismiss answer choices involving breach, causation, or damages.

Sub-rule: foreseeability of harm

While the foreseeability of harm alone does not create a duty, most courts emphasize the foreseeability of harm to the plaintiff when evaluating the existence of a duty. The foreseeability of the type of harm is also relevant to proximate cause. See § IV.E.3. Proximate Cause (Legal Cause), infra.

Distinguishing conversion from trespass to chattels

here is no specific rule as to what behavior constitutes conversion, as opposed to trespass to chattels; it is a matter of degree of seriousness. The following factors are considered: i) The duration and extent of the interference; ii) The defendant's intent to assert a right inconsistent with the rightful possessor; iii) The defendant's lack of good faith; iv) The expense or inconvenience to the plaintiff; and v) The extent of the harm to the chattel. Generally, the greater the degree of these factors, the greater the likelihood that a conversion has occurred. Conversion is an exercise of dominion or control over the plaintiff's personal property such that the court is justified in requiring the defendant to pay the plaintiff the full value of the property.

Negligence per se: Elements

i) A criminal or regulatory statute (or an administrative regulation or municipal ordinance) imposes a specific duty for the protection of others; ii) The defendant violates the statute by failing to perform that duty; iii) The plaintiff is in the class of people intended to be protected by the statute; and iv) The harm is of the type the statute was intended to protect against. Once negligence per se is established, in order for the defendant to be liable, the plaintiff must prove that his injuries were proximately caused by the defendant's violation of the statute.