Torts

• Battery
• Assault
• False Imprisonment
• Intentional Infliction of Emotional Distress
• Trespass to Land
• Trespass to Chattels 
• Conversion

An affirmative act with intent to touch another resulting in actual harmful or offensive touching of P

A voluntary act, absence of mistake, coercion or duress

Actual intent or substantial certainty that contact will occur

harmful or offensive touch is a touch that a reasonable person would find harmful or offensive or is damaging to a reasonable sense of dignity.  This includes the eggshell theory but does not include the unduly sensitive person.

The theory that you take the plaintiff as he is, brittle bones and all.

Under the doctrine of Transferred Intent, if D held the necessary intent with respect to person A, he will be held to have committed an intentional tort against any other person who happens to be injured.

Battery can occur where P consents to a certain level of bodily contact but D goes beyond the consented to level of contact. At that point consent becomes invalid

• An affirmative act
• with intent to place P in apprehension
• of an immediate
• harmful or offensive touching

• P must know about the almost touch. Additionally, D must intend to scare, touch or almost touch P.  
• Or D can just intend to create an apprehension

here and now.  Not later.

Words alone cannot be an assault, there must be a physical gesture with the words.  Or prior experience with D that the words will be followed by actual contact

• An act or omission which causes P's confinement to a particular area
• with intent to confine someone 
• resulting in the actual confinement of P where P cannot escape by reasonable means
• Either awareness of the confinement or injury resulting therefrom

• And extreme and outrageous conduct
• with intent to cause severe emotional distress or reckless with regard to such injuries (no transferred intent)
• resulting in severe emotional distress.  But no physical injury is required.

• Transferred intent only applies if behavior is directed to a third party and 
• P and X are close relatives (immediate family) and D knows P is present

• If P and X are not immediate family members, P can recover only if 
• P was present and known to D to be present, and 
• The emotional distress suffered by P lead to bodily harm.

An affirmative intentional act - either D enters the land or causes an instrumentality/object to enter, or refuses to leave after being requested to, which invades P's possessory interest (actual injury not required) in land

• an affirmative intentional act
• which interferes w P's possessory interest
• in movable personal property
• resulting in injury 
• measure of damage - depends on nature of trespass but may include value of lost chattel, actual injury to chattel, and loss of P's use of chattel

• An act or omission
• with intent to assert dominion and control over a chattel
• which in fact belongs to P
• resulting in substantial injury to the chattel
• measure of damages is full or fair value of property.

• Courts consider several factors including:
• duration of D's dominion and control
• D's good or bad faith
• the harm done to the property
• the inconvenience caused to P

• Consent 
• Defense of Others
• Defense of Property
• Self-Defense
• Necessity
• Arrest

• Actual consent - verbal
• Apparent consent - based on actions
• implied consent - does the law imply consent
• informed consent - what was P told?
• Did D's acts exceed scope of P" consent?
• Does P have capacity to consent?
• Was consent vitiated by fraud or duress?

Majority - D stands in shoes of the protected party - was protected party entitled to use the same amount of defense?

Minority - protects actor's reasonable mistake - what amount of force did D believe was reasonable?

• D is privileged to defend land or chattels with non-deadly force if:
• intrusion by other party not privileged
• Actor reasonably believes force necessary to prevent intrusion
• Demand made that inturder stop unless futile
• Force will not cause serious harm. deadly mechanical devices privileged only where D entitled to use such force in person.
• Non-deadly mechanical devices are privileged only if plainly visible or if a warning is posted.

• D is privileged to use reasonable force if:
• D entitled to immediate possession
• demand for return made and ignored or futile
• D in fresh pursuit of tortfeasor
• Recapture from dispossessed/3rd party having knowledge

• A shopkeeper may detain a customer when -
• he has reasonable grounds for suspicion
• detention for a reasonable non-deadly force
• detention itself reasonable

• Demand for permission to enter made unless futile or emergency circumstances
• Entry made in a reasonable time and manner
• Note- under this privilege, act of God or third party does not excuse liability for tort

Self Help not privileged since other alternatives are available (i.e quiet title; ouster

• D reasonably believes she is in danger form P
• Force used reasonably appears necessary to prevent harm (objective test) 
• No deadly force unless there is a danger of death or great bodily injury
• MAJ - imposes no duty to retreat even though escape is available
• MOD - imposes duty to retreat before using deadly force unless actor is in her own home
• No defense for aggressor unless she withdraws

Public Purpose? No liability to avoid public disaster

Private Purpose? liable for actual damages

Abate nuisance - if D owns land affected by actual nuisance, has made immediate demand nuisance be abated, and reasonable force is used.  these privileges supersede the privilege of a landowner to protect property.

• D may use reasonable, non-deadly force to effect a misdemeanor arrest and may use deadly force to make a serious felony arrest if the suspect poses serious harm to person making the arrest:
• With warrant if warrant is fair and properly executed
• Without a warrant - 
• Felonies - officer can arrest if probably cause exists / private citizen can arrest if felony has been committed and private person has reasonable belief that person arrested committed the felony
• Misdemeanors - if crime involves a breach of the peace and is committed in arrestor's presence.

Breach of a duty of due care which is the actual and proximate cause of P's injuries

• Cardozo (MAJ) - Duty owed only to foreseeable P or person in the zone of danger
• Andrews (MIN) - Duty owed to all members of society

• Where D who has actual ability and authority to control 3rd person, duty owed if:
• D holds public premises open to public
• D is liable as a parent for negligently failing to control child

• D's duty depends on character of land and P's status:
• 1. Where P outside D's land, no duty of care where injuries caused by natural conditions.
• 2. If artificial condition abuts D's land D has duty to inspect and maintain in safe conditions (i.e. excavation ditch)
• 3. If D knows or should know of P's presence on land, then duty to warn against artificial condition or danngerous activities
• 4. D liable under the attractive nuisance doctrine if D knows/should know that children will trespass and that condition is dangerous to children, children would not realize risk and danger to children outweighs D's burden of eliminating danger.
• 5. If P is gratuitous licensee (comes onto to land for own purposes with D's permission) D has duty to ward over non-obvious dangers
• 6.  If P is an invitee (business visitor) D has a duty to warn about non-obvious  dangers, to inspect and make any dangerous conditions safe
• 7. If public entrants (e.g. firemen, police officer) enter during regular hours = invitees

A person who has the owner's consent to be on the property, but who does not have a business purpose for being there

Persons who are invented by owner onto the land to conduct business

Members of the public who are allowed onto land that is open to the public

changes from invitee to licensee if use extends beyond what is normally open to the public.

• Where P outside land, D's duty limited to conditions involving unreasonable risk of harm until transferee has chance to discover/fix condition
• No duty after transfer of possession unless otherwise agreed, but must warn of unreasonable obvious dangers
• (MAJ) D owes no duty to 3rd persons coming on land w/vendee's/lessee's consent;
• (MIN) same duty as owed to vendee/lessee

• D as driver of a car owes a duty to P, the passenger
• If P paid - as invitee
• if P did not pay - D must warn of non-obvious defects and drive carefully
• Guest status under modern law only imposes liability where neg is wanton or gross

• Generally no duty to aid others, unless
• Innkeeeper has duty to guests
• Common carrier to customers
• Jailer to prisoner in peril
• If D caused P's peril or injuries
• One who undertakes to aid another must exercise due care

• Duty of care not to subject others to emotional distress which could foreseeable cause them physical injury through physical impact or threat of impact.  No duty is owed to 3rd person unless 
• 3rd p is in zone of danger
• 3rd p is close relative of injured person
• D had knowledge of 3rd p's presence and relationship to injured party

Duty to act as a reasonable person would have acted in the same or similar circumstances

Exception - those with special knowledge/disability held to a like standard

An actor is negligent if, without excuse, the actor violates a statute that is designed to protect against the type of accident the actor's conduct causes and the accident victim is within the class of persons the statute is designed to protect

D breaches the standard of care by engaging in conduct that exposes others to unreasonable risk of harm

• The thing speaks for itself - based on the facts of the accident, in can be inferred that D was negligent
• The type of accident does not occur unless someone was negligent
• D has exclusive control over the instrumentality
• P did not contribute to the negligence

To rebut, D must show the instrument that caused the injury was not in his control.

A showing of due care will not work

• Cause in Fact
• Proximate cause

Generally, cause in fact means "but for" cause - But for D's actions, P would not have been injured.

• a sufficiently close causal connection between D's act of negligence and the harm suffered by P that is is fair to hold d liable - the legal cause
• There was no direct intervening cause or indirect foreseeable cause

If either one of two acts would have caused the injury, it is sufficient if D's conduct was a substantial factor

When 2 or more persons have been negligent but it is unclear who caused the injury, P must prove the harm was caused by one of them and the burden shifts to the D to prove his negligence was not the cause.

• Actual damages are required.  
• Damages include medical expenses, lost earnings, pain & suffering 

No punitive damages or pre-judgment interest

P must mitigate damages

• Contributory Negligence
• Comparative Negligence
• Assumption of the Risk

• If P caused injury & was negligent herself, no recovery.  
• But Last Clear Chance Doctrine allows P to recover if D could have avoided accident but didn't

• MAJ - rejects absolute bar and compares relative negligence of P/D
• Pure - P can always recover
• 50% - P loses if fault equal to D
• 50% or less - P loses if neg greater than D

If P expressly/impliedly consented to harm, recovery barred if P recognized/understood danger and voluntarily chose to encounter it

• P bears the burden of proof - 
• Burden of production 
• Burden of Persuasion

P must come forward with some evidence that D was negligent, that P suffered an  injury, that D's negligence proximately caused the injury, etc....

As the case goes to the jury, P must convince the jury that it is more probably than not that his injuries are due to D's negligence

If more than one person is the proximate cause of P's harm and teh harm is indivisible, under the traditional approach, each defendant is liable for the entire harm. (joint and several liability)

Traditional - Pure Economic loss are not recoverable by P

Modernly - If the economic loss is foreseeable and measurable, it may be recoverable

Inherently dangerous conduct by D against P 

Keeping wild or other dangerous animals

Carrying out abnormally dangerous or ultrahazardous activities

Workers Compensation in some states

The owner of livestock or other animals is strictly liable for property damage cause by them if they trespass on another's land

Domestic animals - D is only liable if she know of the animal's propensity for danger

Wild Animals - D is strictly liable for harm

Trespassers are not protected in the absence of landowner's negligence unless the injury is inflicted by a vicious animal

One who maintains an abnormally dangerous condition or engages in dangerous activity is strictly liable for harm

• !) Value to the community
• 2) Location is not appropriate for activity
• 3) risk cannot be eliminated by due care
• 4) activity is not a matter of common usage
• 5) probability of serious harm to others

Assumption of risk is the only real defense.  If  knew of danger and negligently caused the miscarrying activity

Some states apply comparative negligence

the liability of the seller of a tangible item which, because of a defect, causes injury to the purchaser, user, or sometimes bystanders.

• Misrepresentation
• Breach of Express Warranty
• Strict Product Liability
• Implied Warranty
• Negligence

Mr. MIC

• Misrepresentation of a material fact
• P must rely on the representation in using the product
• Representation must be made by D or fairly chargeable against him
• Must be intended/expected to reach a class of which P is a member
• D must be a commercial supplier of chattels
• Damages awarded for personal injury/property loss

Defenses - assumption of risk/misuse only

• Same as misrepresentation, except any seller is liable - no requirement of privity
• Extends to anyone who could be expected to be personally injured by goods
• Personal injury, property damage and economic losses are recoverable 
• Entity can sue

• Defenses - disclaimer of merchantabiity must be conspicuous to be allowed
• Assumption of the risk and misuse may be defenses

CUDDIFFE

• D Caused product to be placed on the market
• At time D put product on the market it contained an Unreasonably Dangerous Defect
• P hurt while using product in Intended and Foreseeable manner
• D engaged in the business of selling/supplying product

• CA Test - CERB
• Product does not meet Consumer Expectation
• Risk of harm outweighs Benefit to society

• Feasible Alternative Test: DOC BAT
• Danger imposed
• Obviousness of danger
• Cost of improved design/practicality
• Benefit of product
• Alternative design
• Technology

Contributory negligence not a defense but assumption of risk, misuse, not following instructions are

• State of he Art Defense - 
• Did safer mechanism exist?
• Why didn't D use it?
• Did others use it?
• would use of it at that time adversely affect benefit of product
• Feasibility/scientific knowledge/practicality

Warranty of merchantability guarantees that goods are fit for ordinary purposes that goods are used where D is a merchant of such goods

Warranty of fitness for a particular purpose arises if seller recommends particular product after told by buyer of particular needs regardless of whether D is a merchant

Damages - same as in express warranty

Defenses - Assumption of risk, Misuses of product, Failure to follow directions, failure to complain to seller within a reasonable time

• Same analysis as negligence but
• Duty - Commercial sellers owe a duty of care to any foreseeable P, regardless of Privity

Standard of Care - Manufacturer must use reasonable care in designing and assembling safe product and must provide necessary warnings: wholesalers have no duty to inspect but retailer must if they know a product is defective.

A nuisance is a type of injury that is either Public or Private

a Public nuisance is an interference with a right common to the general public.  harm must be substantial and must injure the public at large

A Private individual may only recover for damages from a public nuisance if his injuries are different in kind than that suffered by the general public

An unreasonable interference with P's use and enjoyment of his land

Must have interest in land - includes tenants and family members

Must show interference with use that is substantial

D's conduct must be negligent, intentional, or abnormally dangerous and unreasonable (harm outweighs utility or harm is greater than P should be expected to bear without compensation

Factor in nature of the neighborhood

making a statement which is understood to be defamatory in nature that is published to a person other than the plaintiff causing damage to the P's reputation.  

may be oral (slander) or written (libel)

• Was the matter defamatory
• (TRAD) exposes P to public hatred, contempt, ridicule 
• (RSTMT 2) Adversely affects P's reputation - if not defamatory on its face, P must explain why

Did D publish intentionally or negligently to 3rd party - Uniform Single Publication Rule - a single edition of magazine, paper or book is one ublication

Was defamatory matter subjectively understood by at least one 3rd person to be of and concerning P or an exclusive group P is a part of?

Must have damages unless Slander per se or if libel

• Affect's P's Business
• Constitutes a serious criminal offense
• Accused P of having a loathsome communicable disease
• Accusation that D is unchaste

• Absolute Privilege
• Truth
• Judicial (relate to legis. proceeding)
• Between Husband and Wife
• Made during political broadcast
• Consent?

• Qualified Privilege
• First Amendment - Malice for public figure; negligence for non-public figure
• Opinion - not based on specific facts
• Protection of private interest 
• protect Public Interest
• Published as a report of public proceeding

retraction

The right to be "left alone"

• 1 misappropriation of P's name or picture
• 2. Intrusion into P's solitude
• 3. undue publicity given to P's private life
• 4. the placing of P in a false light

P's name or picture has been misappropriated by D for his own financial benefit

P may sue if his solitude is intruded upon and the intrusion would be highly offensive to a reasonable person.

Must be private place such as home

P may generally recover if D has publicized the details of P's private life.  The effect must be highly offensive to a reasonable person

Must be widely publicized and not already public information

p can sue if the is placed before the public eye in a false light and this false light would be highly offensive to a reasonable person.

Where P is a public figure, there must be actual malice or a reckless disregard of whether it was false

• P must prove the following:
• 1 D instituted criminal proceedings against him
• 2. that those proceedings terminated in favor of P and
• 3. that D had no probable cause to start the proceedings and
• 4. that D was motivated primarily by some purpose other than to bring an offender to justice

• Same as Malicious Prosecution - 
• P must prove the following:
• 1 D instituted civil proceedings against him
• 2. that those proceedings terminated in favor of P and
• 3. that D had no probable cause to believe his claim was justified
• 4. that the claims were started for an improper purpose

where a person involved in a criminal or civil proceedings uses various litigation devices for improper purposes

Protects P against certain false statements made against his business, product, or property. Most important is the so-called trade libel.  

• Must prove the following - 
• False Disparagement  - false statement 
• Publication - Published as in defamation
• Scienter - D knew statement was false
• Special Damages - show pecuniary harm

• Defenses
• Truth
• Fair Competition - i.e. general comparisons of products are allowed such as puffing

Protects P's interest in having others perform existing contracts which they have with him.  The claim is against one who induces another to breach a contract

Defenses - privilege - i.e. contract was terminable at will

Similar to interference with an existing contract, where D interferes with a prospective potential contract.

Defense - Competition - usually D's desire to obtain the business for herself will give privilege

Deceit or Fraud

• A misrepresentation by D 
• Made with Scienter
• with an intent to induce P's reliance
• Justifiable reliance by P
• Damage stemming from the reliance - includes benefit of the bargain but must be financial loss

Defense - Puffery, Opinion are not actionable

At C/L - not actionable 

• MOD - Must have actual harm
• Same requirements as Intentional Misrepresentation
• Normally where there was a business relationship  
• Liable to 3rd parties where they were part of a class intended to be reached
• Damages for pecuniary harm only  - no benefit of the bargain.  Must be actual loss or reliance damages