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BAF IT TC
Infliction of metal distress
Trespass to land
Trespass to chattels
Intentional torts prima facie case
Act by D
Intent (specific or general)
Intent required for intentional torts
- Specific: D consciously desires
- to cause consequences of act (i.e. entering land)
- General: D knows or should have known that the result was substantially likely to occur
- from his act.
- Applies to assault, battery,
- false imprisonment, trespass to land/chattels (not IIED).
- Intent transfers from one p to another, and from one intended tort to another intended
Incapacity to commit intentional tort
- Everyone is capable: Age and
- mental deficiency is not a defense.
- Unreasonably harmful or offensive
- contact with p ’s person, or things person is touching.
* Hypersensitivity not a factor
* p need not be aware
- * Use IIED if conduct extreme and
* Contact may be direct or indirect
- Reasonable apprehension of
- immediate harmful or offensive contact (battery).
* Hypersensitivity not a factor.
- * Apprehension is awareness, not
* Ability is irrelevant.
- * Words alone not enough – but if
- unambiguous it may negate act.
* Assault merges into battery.
- Act or omission to confine or
- restrain p to a bounded area.
- * Threat sufficient; or when
- omission of duty to release exists.
- * p must have no reasonable means
- of escape.
- * p must be aware of confinement
- or harmed by it, unless child or incompetent.
- * Bounded area need not be a
- physical confinement: Restraint on freedom of movement is enough.
* Indirect act: D calls PD and causes PD to arrest p , without probable cause.
Intentional Infliction of Emotional Distress
- Unreasonably extreme and
- outrageous conduct causing severe emotional distress (physical injury not
- needed). Mere insults not enough.
- requirement of outrageous conduct applies to common carriers, innkeepers,
- elderly, children, pregnant, hypersensitive if p knows (insults/highly
- offensive conduct enough).
Intentional trespass to land
- Physical invasion of another’s
- May be above or below within
- reasonable distance.
- * Intentional: Nominal damages
- even if no harm, strict liability for damages.
- * Negligent/Reckless: Recovery
- for actual damages.
- * Non-negligent trespass: No recovery, even if damage occurs (sleepwalking, car
Intentional trespass to chattels
- Interference with p ’s use and
- enjoyment of personal property (damage or possession). Also occurs when D
- deviates from p ’s consent re: use of property.
- Liability for actual damages: diminished value, reasonable rental value, loss of use,
- cost of repair.
- Substantial interference with p
- ’s right to use and enjoy his chattel. Of a higher degree of damage than
- trespass, such that p no longer wants his property back. D liable for full
p can sue TP who gets the converted item, but not if TP is BFP
- Knowing & voluntary, express
- or implied (emergency room).
- No consent if D exceeds consent
- (fight with brass knuckles), fraud, incapacity (age, incompetency,
- intoxication), or duress.
Can’t consent to criminal act.
- When D reasonably believes he is
- about to be attacked, he can use reasonable force necessary to protect him from
- imminent bodily harm. Lethal force only if victim reasonably believes he is
- being attacked with deadly force.
- No duty to retreat or comply with
- Defender must not be initial
- Accidental injury to TPs during
- self defense is privileged (TP can sue original aggressor).
Reasonable mistake allowed.
Defense of others
- D stands in shoes of TP, and TP
- must have had right to use force in self-defense. No mistake allowed. D can use
- that force which he could have used in self-defense (reasonable; deadly only in
- return for deadly force).
- Minority law allows D to use
- force when D reasonably believes TP privileged to use such force.
Note: Possible defense to false imprisonment where D seeking to protect others or p from p.
- Reasonable force necessary to
- stop intrusion, so long as the taking was not privileged. Never deadly or
- serious bodily arm force, although self defense may be applicable which would
- allow for deadly (but bluffing threat of deadly force is allowed).
- Actor must first request
- trespasser to desist, unless useless.
- When one has trespassed onto another’s land, latter must usually resort to legal
- process (UD) rather than self-help to reclaim land.
Recapture of chattel
- D is privileged to exercise
- reasonable, nondeadly force, including trespass, to recover wrongfully obtained
- chattel from culpable party, if he acts promptly after discovery of trespass,
- and first demands return (unless futile). Not liable for trespass nor actual
No mistake allowed.
Reasonable force can be used by parent or teacher for control, training or education.
Private person arrest
- Misdemeanor: Breach of peace
- committed in presence of D . Absolute privilege, but no deadly force.
- Felony: Felony was in fact committed, and D reasonably believed p committed the
- felony. Deadly force only if p poses threat of serious harm.
- Misdemeanor: Breach of peace
- committed in presence of D.
- Absolute privilege, no deadly force.
- Felony with warrant: Privilege if
- p is named or described in warrant, or reasonably believed by D to be person in
Felony without warrant: D reasonably believes felony committed and p committed felony. Deadly force only if p poses threat of serious harm.
Interference with real or personal property is privileged when it is reasonably and apparently necessary to avoid threatened injury from emergency situation. Injury must me more serious than invasion.
- Public necessity (protects large
- group): Absolute privilege
- Private necessity (protects only D ): Liable for actual damage, but not nominal or
- punitive damage. p may not expel D until emergency is over.
Shopkeeper’s privilege defense to false imprisonment
- Shopkeeper can detain suspected shoplifter if
- reasonable grounds to believe theft has occurred, in a reasonable manner, for a
- reasonable time (30 minutes too long). Shopkeeper liable for actual injuries.
- D liable for all consequences,
- foreseeable or not, which are the actual ("but for") result of his conduct.
Liability extinguished by event entirely independent of D ’s conduct.
Nominal and punitive damages are available.
Elements of defamation
- * Defamatory language: Statement
- based on facts which adversely affects p ’s reputation.
- * Of or concerning p (living or
- incorporation): p must prove colloquium if necessary (special connections)
- * Publication to TP: Reasonably
- certain to be heard; each repetition liable but not distributors.
- * Pecuniary damage: Economic harm
- presumed if malice, libel (permanence; minority requires libel per se not libel
- per quod), or slander per se (business, disease, crime, chastity).
- If public concern or public
- figure, First Amendment adds these requirements:
- * Fault: Public figure requires malice (knowing/reckless disregard for falsity);
- private figure requires mere negligence (duty to investigate)
disclosure of private fact
- Private facts, disclosure of
- which is objectionable (highly offensive) to the reasonable person
Defenses: Defamation privileges, public interest (requires malice), newsworthy, matters in public records.
D puts p in reasonably objectionable, false or misleading public light (widespread distribution). Good fallback tort when defamation fails.
Defense: Defamation privileges, public interest (requires malice).
Intentional intrusion on seclusion
- D deliberately intrudes (no
- publication necessary) into an area in which p has reasonable expectation of
- privacy, which is highly offensive to reasonable person.
- Examples: Eavesdropping, peeping
- tom’s, examining files or mail, unwanted phone calls.
Defamation privileges apply.
- D appropriates p ’s name or
- likeness, without authorization, for D ’s commercial advantage.
Defenses: Defamation privileges; newsworthy.
Statute of limitations
- Runs from time of injury, not
- necessarily time of D ’s tortious act.
Trend and medical malpractice: runs from time of discovery.
* Existence of duty
* Intentional or reckless misrepresentation
* About a past or present material fact (not opinion)
- * With intent of deceiving p
- (scienter – shown by lying, or conscious ignorance)
* And p justifiably relies on statement to his detriment (damages)
p may recover benefit of bargain, actual losses, or rescission. Fraud gives punitive damages. p is anyone relying on representation.
D in business of supplying information.
Negligent misstatement of material fact (breach of duty).
Causation: Actual and justifiable reliance by p.
Actual injury (damages)
Private person who institutes civil or criminal proceedings against an innocent person is liable if D had no probable cause, initiated for primary purpose other than justice (malice), and proceedings terminated in favor of p . Damages for harm to reputation and emotional distress.
Prosecutors immune from liability.
Abuse of process
- D uses legal process against p, with malicious
- intent, primarily to accomplish a purpose for which it is not designed, even if proceeding not terminated in favor of p.
Interference with K relations
- Knowing and purposefully creating
- substantial difficulties in getting the benefits of an existing K, even if K is
- not breached. Injunctive relief available when money damages are inadequate.
Defense: Protection of D ’s or TP interest.
Interference with prospective advantage
Interference with future K relations (including non-commercial – such as employment) by unlawful or malevolent conduct (fraud). Injunction available.
Competition is a defense (not a tort to beat a competitor to prospective customers).
Publication of a derogatory false statement (not mere opinion) related to p ’s interest in property or business (trade libel), for the purpose of causing p pecuniary loss, which results in p actually suffering monetary damages.
D must be at least reckless with regard to falsity.
Defamation privileges apply.
Elements of negligence
* Causation (factual and legal)
- must fail to exercise such care as a reasonable person in his position would
- have exercised; his conduct must be a breach of the duty to prevent the foreseeable risk of harm to anyone in p ’s position, and his breach must cause p ’s damages.
Who can be a p
- Any reasonably foreseeable victim
- of D ’s conduct. No duty owed to persons outside zone of danger at time of negligence. (Cardozo; Andrews said duty owed to all)
Rescuers are always foreseeable.
- Prenatal injuries: Child can’t recover for wrongful life, but mom can recover for
- medical expenses and birth pain/suffering (not child-rearing expenses).
Ordinary standard of care
- To act as a reasonably prudent
- person, under the circumstances.
- Considers physical characteristics of D , D ’s superior knowledge, childhood status (age,
- intelligence, education and experience), emergency situation.
Doesn’t consider mental deficiency or inexperience.
Standard of care for child
To act as a child of like age, intelligence, education and experience.
Under 4 usually not liable.
Child engaged in adult activity requires adult standard of care.
Standard of care for professionals
Must possess and exercise knowledge and skill of a member of profession in good standing in a similar community. Compare with actual peer group.
Standard of care for innkeeper or common carrier
Highest duty of care to customers. Liability for slight negligence by employees, and duty to take reasonable action to protect against unreasonable risk of harm, including harm from TP’s.
If p not customer, D need only act as reasonable innkeeper/CC.
Standard of care for landlord
Usually no duty. Exceptions:
- * Maintain common passageways in
- safe condition
* If land is open to the public.
- * Known dangers at commencement
- of lease if fails to disclose
* Negligently performed repairs
Standard of care for automobile driver
Duty of ordinary care (reasonably prudent person). Driver has duty to warn of known hidden defects, use reasonable care in driving.
States with guest statute: Driver not liable for mere negligence, but liable for gross, wanton, reckless conduct.
If passenger paid $, he is an invitee and owed invitee duty of care.
Unknown chemicals in glove box fact pattern: No duty unless D suspected package was dangerous. No duty to inspect.
Standard of care for bailment
Gratuitous (free loan): Bailor must warn bailee of known dangerous defects.
Bailment for hire: Bailor must inspect and warn or make safe.
- Bailee has high standard of care if the bailment is for his benefit; low standard if
- for bailor’s benefit. Ordinary standard if for mutual benefit.
Landowner’s duty of care to those off premises
No duty for natural conditions, but duty to act reasonably re: unreasonably dangerous artificial conditions.
Must conduct activities to avoid unreasonable risk.
Owner is liable for damage caused by falling trees / branches.
Landowner’s duty of care to
- Attractive nuisance doctrine
- imposes liability if:
- * D know or had reason to anticipate
- children trespassers (i.e. attractive nuisance)
* Artificial condition dangerous to children on property which D knew of or should have known of
* Child subjectively unable to appreciate danger
* Utility outweighs outweigh danger and burden of protection.
Landowner’s duty of care to undiscovered trespasser
One who enters or remains without consent or knowledge of owner.
No duty owed, because p is unforeseeable.
Landowner’s duty of care to discovered or anticipated trespasser
One who enters or remains without consent, but with knowledge of owner.
Duty of reasonable care re: active operations.
No duty re: natural conditions.
Duty to warn or make safe artificial conditions which are known, hidden, and highly dangerous.
Landowner’s duty of care to licensee
Permission to enter granted by owner, but not for purpose for which property is maintained (social guest, solicitors, firefighter, PD).
Duty of reasonable care re: active operations.
Duty to warn of or make safe known natural or artificial conditions which are hidden and dangerous. No duty to inspect, and no duty re: obvious conditions.
Landowner’s duty of care to invitees
Person on premises for purpose for which the land is held open to the public, limited to scope of invitation.
Duty of reasonable care re: active operations.
Duty to make reasonable inspections to discover hidden dangerous conditions and warn or make safe.
No duty re: obvious conditions.
Negligence per se
* Statute which establishes civil liability
* Criminal statute designed to protect this class of p from this class of harm.
Statute is conclusive presumption of negligence, and D may not introduce evidence as to reasonableness of his actions, unless his actions were more reasonable than statute required, or impossible to comply with statute given circumstances.
Affirmative duty to act
No duty to act or rescue, unless:
* D caused peril
- * Preexisting or special
- relationship between parties (family, common carrier/innkeeper, landowner/occupier to invitee)
* Creator of peril
- * K (lifeguard) or statute (hit
- and run)
- * Duty of parent to control child
- and employer to control employee if able to do so, and know/should know that such control is needed, and authority (parent, employer).
If duty exists, duty to act reasonably
Negligent Infliction of Emotional Distress
p who is emotionally injured (no physical injury) can recover if:
* D exposed p to risk of physical injury that didn’t materialize (zone of danger – near miss or close call); and
* Subsequent physical manifestation of distress (prevents fraud)
Bystander liability: D liable if p witnessed negligent injury on close family member.
* Custom or usage (not dispositive)
* Violation of statute (negligence per se)
* Res Ipsa Loquitor
Res Ipsa Loquitor
Inference of negligence when direct evidence is not available.
* Incident would not normally happen unless someone was negligent;
* Instrument was in exclusive control of D
* p wasn’t responsible for harm
Example: Barrel falling from factory window, but not chair falling from hotel window (guest could have thrown); human toe in canned food.
Useful for p to forestall D ’s motion for directed verdict.
Causation – Factual
p : But-for D ’s conduct, p would not have been injured.
D : Even if D had used reasonable care, p still would have been hurt.
Multiple D ’s caused harm: D ’s conduct was a substantial factor in causing p ’s injury. All D ’s jointly and severally liable.
- One of multiple D ’s caused harm (but unknown which): Burden shifts to D to show
- his negligence wasn’t actual cause. If they can’t, joint and several liability attaches.
Causation - Legal
D ’s liability is limited to that which is foreseeable (fairness). Ask: What is the harm we’re afraid of from D’s conduct? Was the result that type of harm? If yes, D liable.
Direct cause: D is liable for the normal, foreseeable results of his act.
Indirect cause (intervening force):
* D liable for foreseeable results of intervening forces, unless intervening force is a crime or tort. Eg: Subsequent medical malpractice, negligent rescuers, p ’s protection/reaction, subsequent disease or accident (tripping over crutches); and any other foreseeable results.
* D not liable for unforeseeable results of intervening forces (superseding). Eg: Most criminal acts and intentional torts, most acts of god, suicide.
Damages from negligence
Egg-shell p : If D is otherwise liable for tort, he must pay for all damages suffered, even if extent or severity is unforeseeable. [applies to all torts – not just negligence]
Actual damages (physical or property) are required. Nominal damages not available. Punitive damages if D acted with malice (wanton/willful/reckless).
p must take reasonable steps to mitigate damages.
Contributory negligence & defenses
Traditional common law defense; widely eliminated in modern law. If p is even slightly at fault, no recovery from D for negligence, unless D was wanton or reckless.
Exceptions: Last clear chance doctrine: D had last clear chance to avoid danger created by p ’s prior negligence (including actual ability to avoid accident, or if D saw helpless p ).
Apportions damages based on degree of fault. D ’s liability reduced by proportion of p ’s fault.
Pure (maj. and MBE default): p can recover even if his negligence is greater than D ’s.
Partial/Modified: p ’s negligence must not be greater than D ’s negligence.
Implied assumption of risk
Bar to recovery where p voluntarily and knowingly exposes himself to risk of harm. Relieves D of duty of reasonable care. Includes sporting event, but rescuer doesn’t assume risk in helping, or emergency situation.
May be by express agreement, but common carriers can’t waive liability this way. Member of protected class can’t assume risk.
- Implied assumption has been eliminated in most comparative negligence jurisdictions,
- but express assumption remains.
Elements of strict liability
* D owes strict duty to all foreseeable p ’s
* Cause (actual and proximate)
No amount of care by D will relieve him of liability.
Assumption of risk and comparative negligence is a defense
Strict liability for injuries by wild animal
- Generally does not serve mankind:
- Lion, tiger, bear, elephant, wolf, monkey, snake, alligator, guard dog, all livestock. Wild animals can never be tamed or domesticated, despite what owner may think.
- Strict liability for all injuries and damage caused by dangerous propensities (those
- normally inflicted by the animal) of a wild animal.
Strict liability for injuries by domesticated animal
No strict liability, unless D has knowledge of dangerous propensities (i.e. a prior attack).
Strict liability for trespass damage.
No strict liability in favor of trespasser in absence of owner’s negligence. But vicious watchdog may give intentional tort.
Strict liability for ultrahazardous activity
Ultrahazardous-ness (question of law):
* Cannot be made entirely safe with existing technology
* Serious harm is a foreseeable consequence of activity
* Uncommon in the local area
Examples (use common sense): Blasting, explosives, dangerous chemicals. Fireworks and guns are not ultrahazardous. D ’s status as government contractor not a factor.
Theories for liability
* Intentional defect (battery, punitive $ available)
* Strict liability
What makes a product defective
* Design: Not safe for intended use; reasonable consumer expectation; could have been made safe w/o serious impact on price/utility
* Inadequate warnings re: dangerousness
Defect must have existed when product left D ’s care (presumed if product shipped in normal commerce). Subsequent substantial alteration negates liability, but subsequent failure of intermediary to discover defect is not an intervening cause.
No liability for scientifically unknowable risks, unavoidably unsafe products (a knife), or use in unforeseeable way.
* D must be a merchant selling/leasing product in the regular course of business, or engaged in commercial distribution of product. Entire chain of distribution is liable. No liability for products provided with services.
* Duty: D has duty to supply safe products.
- * Breach: Product suffers from unreasonably
- dangerous defect.
* Causation: Defect existed when it left D ’s control.
* Damages: PI and property damages, but not pure economic damages.
- Defenses: Assumption of risk, unforeseeable misuse, comparative negligence. Disclaimers
- irrelevant. Privity not required - even thief can recover.
Implied warranty for particular purpose: Goods must be fit for special use if buyer relied on seller’s judgment in recommending the product for a particular purpose.
Implied warranty of merchantability: Merchant sellers warrant that their goods are fit for their ordinary purpose.
Defenses: Assumption of risk, contributory or comparative negligence, unreasonable misuse, failure to give reasonable notice. p must have privity with D. Disclaimers effective if not unconscionable (no disclaimers for PI).
Representation of material fact which is more than mere puffery.
D liable to all foreseeable p ’s for physical and property damage (no privity required).
Defenses: Assumption of risk, contributory or comparative negligence, unreasonable misuse, failure to give prompt notice of breach to D .
Commercial suppliers can be held liable for negligently supplying a defective product.
* Failure to exercise reasonable care in inspecting or sale if defect would have been discoverable upon reasonable inspection). Retailers and wholesalers can usually satisfy duty with cursory inspection.
* Failure to take advantage of known and available safety device – balance cost/benefit.
* Intermediary’s failure to discover defect isn’t a superceding event.
* Physical injury or property damage must be shown.
- * Defenses: Contributory negligence, assumption of risk. No privity required –
- even thief can sue.
: Unreasonable interference with health, safety, or property rights of the community (i.e. house of prostitution). Recovery by private party only if unique damages. Otherwise, injunction is proper relief, brought by government or uniquely damaged p.
- Private: Substantial (no hypersensitivity) and unreasonable (severity outweighs utility) interference with use and enjoyment of p ’s land. Includes harassing phone calls. Abatement by self help following notice and
- refusal by D to act – allows necessary force.
D liable even if he acted reasonably.
- Defenses: Latches, unclean hands. Factors for remedy: Benefit outweighs harm, p came to nuisance, contributory/comparative negligence, assumption of risk, compliance
- with zoning statute.
- Employers liable for torts of employees provided employee is acting within scope of employment (minor deviations ok, but not frolic). Intentional tort outside scope unless authorized by employment (security guard), job involving friction (bill collector, repo man), or furthering the business of
: Principal not liable for agent, except for inherently dangerous activities and nondelegable activities (duty of landowner to invitee). Principal may be liable for negligent selection.
Joint venture and partnership
Each member liable for torts of another member committed within the scope and course of joint venture/partnership.
Joint venture indicated by:
* Common purpose
* Community of pecuniary interest
* Mutual right and control
* Limited time period and purpose
Automobile owners / drivers
General rule: No vicarious liability. Exceptions:
* Family member driving with owner’s express or implied permission
* Driver on errand for owner (agency)
* Owner who negligently entrusts driver with car (drunk)
* Permissive use: Owner liable for anyone driving with consent, if statute provides for such liability.
Parents / children
Parents not vicariously liable for child, unless statute imposes limited liability for intentional torts, or if child acting as parent’s agent.
Parents may be liable for negligence for failure to supervise or control known dangerous propensities, or if tort for the benefit of parent and parent knowingly consents and fails to supervise.
Common law: No liability.
Modern law: Dramshop Acts impose liability.
When D is liable for damages via vicarious liability or strict liability, he is indemnified by the actual tortfeasor (employee, manufacturer) for the damages. Operates to shift loss.
Multiple D ’s – liability
Each defendant generally only liable for his portion of the harm, but if tortious acts of 2+ D ’s caused indivisible injury, D ’s are held jointly and severally liable, and burden on D to apportion harm (i.e. via contribution).
- Satisfaction: p ’s recovery in
- full. Only 1 satisfaction is allowed.
- Contribution: Apportions responsibility among those at fault. Each D must pay their
- proportionate share to another D who paid more than his share.
No liability for discretionary acts.
Liability for proprietary activities (whose which private company may engage in): Schools, utilities, public transportation.
Family & charitable immunity
No longer immunity between family members. Spouses can sue each other, and children can sue parents.
Charities no longer immune from negligence because insurance is available.
Survival / Wrongful death
Tort actions survive p ’s death, except torts against intangible interests (defamation, privacy). All actions survive D ’s death.
Wrongful death: Recovery by estate allowed to extent that deceased could have recovered if he lived (contributory negligence)
Interference with family relations: Spouse or parent has action against D for loss of services and consortium. Any defenses against decedent apply against p (contributory negligence).
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