First identify the tortious conduct. This conduct must meet three requirements.
Intent: the defendant acts with purpose of causing the consequence, or defendant acts knowing that the consequence is substantially certain to occur. Intent is to commit the tort, not to cause all the harm. Children, mentally incompetent can be deemed to have intent.
Transferred intend: the intent requirement will be met when a person intends an intentional tort against one person but instead commits (1) a different intentional tort against that person, (2) the same tort against a different person, or (3) a different intentional tort against a different person. Applies to
Causation: defendants conduct
Voluntary Act: the defendant must have the state of mind that directed the physical movement.
(1) conduct intended to cause (2) and causing (3) a touching of a harmful or offensive nature (4) without consent (5) without privilege. May also be met by intent to cause imminent apprehension of the touching.
Harmful: causes an injury, physical impairment, pain or illness. Reasonable person standard.
Offensive: either (1) reasonable person would find the contact offensive, or (2) if defendant is aware that actual person is hypersensitive.
Awareness is not required at the time of the injury.
Contact can be with anything connected to the plaintiffs person.
Damages: all foreseeable harm, no actual proof of harm required, and punitive damages if defendant acted with malice or outrageously.
MD note: distinct from assault.
(1) conduct intended to cause (2) and causing (3) reasonable apprehension of an imminent touching of a harmful or offensive nature (4) without consent (5) without privilege.
Intent: the apprehension or the contact itself.
Apprehension must be reasonable, and the plaintiff must be aware.
Imminent means without significant delay threats of future harm insufficient.
Mere words do not justify assault, although words + circumstances may.
Damages all foreseeable damages, nominal damages.
MD note: distinct from battery.
Intentional Infliction of Emotional Distress
Intentional or reckless acts of extreme or outrageous conduct which causes severe emotional distress.
Intent: no transferred intent.
Extreme or Outrageous conduct: exceeds limits of common decency to be intolerable to society. Mere insults, indignities or threats insufficient. More likely when (1) defendant in a position of authority or influence, or (2) plaintiff in a group with heightened sensitivity.
Conduct towards third party may be recoverable when (1) conduct directed at a member of victims immediate family, (2) defendant is aware of their presence, and (3) third party suffers harm as a result.
Severe emotional distress: beyond what a reasonable person could endure.
Damages: physical injury not required.
(1) conduct intended to cause (2) and causing (3) the confinement or restraint of another (4) without consent (5) without privilege.
Methods of constraint: use of physical barriers, physical force, threats, invalid use of legal authority, duress or refusing to find a safe means of escape.
Consent: a plaintiff may initially consent to confinement but later withdraw consent, or the consent may evaporate after time.
Intent: defendant must act (1) with purpose of confining plaintiff, and (2) knowledge that plaintiffs confinement is substantially certain to result. Intent may be transferrd.
Damages: plaintiff must be aware of confinement or suffer actual harm from the confinement.
MD: shopkeepers privilege a store owner can detain a person on probable cause - the reasonable belief that the customer stole something.
Trespass to Chattels
(1) conduct intended to cause (2) and causing (3) interference with the right to anothers chattels (4) without consent and (5) without privilege.
Interference by (1) dispossessing the plaintiff or (2) using/intermeddling with the plaintiffs use of the chattel.
Intent: only the intent to do the act is necessary, and mistake about legality of action is not a defense.
For dispossession plaintiff may recover actual damages and the loss of use of the goods.
Use/intermeddling plaintiff can only recover actual damages.
(1) conduct intended to cause (2) and causing (3) interference with the right to anothers chattels so serious as to entirely deprive the plaintiff of the chattel (4) without consent and (5) without privilege.
Intent defend need only intend to commit the interfering act.
Interference can occurring by exercising dominion or control over plaintiffs chattel.
Damages plaintiffs can recover full value of chattel at the time of conversion. Alternatively, plaintiff can pursue a replevin action to recover the property.
Difference between Trespass to Chattels and Conversion in determining, courts will consider
1. Duration or extent of interference
2. Defendants intent to assert a right inconsistent with the rightful possessor
3. Defendants good faith
4. Expense or inconvenience to the plaintiff
5. Extent of harm to the chattel.
Trespass to Land
(1) conduct intended to cause (2) and causing (3) entry upon the land of another (4) without consent and (5) without privilege.
Intent: to go where youre going defendant need not intend to trespass. Mistake of fact is not a defense.
Physical invasion is required; otherwise, consider nuisance.
Damages: nominal damages, actual damages, punitive damages, injunctive relief.
Necessity is a defense to trespass. A defendant who enters onto the land of another may do so to prevent injury or other severe harm. Entry must be proportionate to the harm presented.
Private necessity liable for damages during the necessary entry upon land.
Public necessity no liability for necessary entry upon land. Occurs when a large number of people must enter to avoid harm.
Substantial and unreasonable interference with the use and enjoyment of the land of another.
Defendants conduct can be intentional, negligent, reckless or the result of an abnormally dangerous activity. Analyze under proper law.
Unintentional --> negligence standard.
Intentional --> nuisance if more than what a plaintiff should have to bear.
Blocking of sunlight or views is not a nuisance except for spite fences (no purpose but to block the sunlight/view).
Defenses to Nuisance
Compliance with regulations is not a complete defense activity must still be reasonable.
Coming to the nuisance a plaintiff cannot complain of a nuisance when she knew of the nuisance prior to purchasing a property.
Remedies for nuisance injunctions, damages
Abatement - person may enter the land of another to abate a nuisance after giving defendant notice and the defendant refuses or fails to act. Public nuisance abated by public agency.
Defenses to Intentional Torts: Consent
Express consent arises where the plaintiff, by word or actions, manifests a willingness to submit to the conduct. Defendants conduct cannot exceed scope of consent.
Consent by mistake valid unless defendant caused the mistake or knew of it and took advantage of it.
Consent by fraud is invalid if it goes to an essential matter.
Implied consent arises when (1) a reasonable person would object and the plaintiff is silent, or (2) the plaintiff enters into circumstances where she indirectly signals her willingness to endure conduct.
Defenses to Intentional Torts: Self-Defense
A personally may use reasonable force to defend against an offensive contract or bodily harm. Force used must be proportionate to the anticipated harm. Mistake, when reasonable, is a valid defense.
Duty to retreat courts may require plaintiffs to retreat before using deadly force except when in their homes.
Initial aggressor is not entitled to claim self-defense.
The party which raises self-defense is not liable for injuries to bystanders.
MD: duty to retreat before using deadly force unless claimant is in the home or the curtilage of the home. Initial aggressor cannot claim deadly force UNLESS the other party responds to a non-lethal threat with the use of lethal force.
Defenses to Intentional Torts: Defense of Others
A plaintiff is allowed to use reasonable force in defense of others provided that there was a reasonable belief that the defended party would be entitled to use self-defense.
Defenses to Intentional Torts: Defense of property
A plaintiff may use reasonable force necessary to prevent tortious harm to the property.
May never use deadly force, although defense of property may escalate to self-defense.
Defenses to Intentional Torts: Arrest Privilege
Private Citizen is permitted to use force to make a felony arrest when (1) felony has been committed, and (2) arresting party has reasonable grounds suspect that the person being arrested committed the felony. Mistake of identity acceptable, but not mistake over the felony.
Police are permitted to use force to make a felony arrest when (1) he reasonably believes a felony has been committed and (2) he is arresting the person who committed it. Not liable for good faith mistake. If a misdemeanor, arrest only permissible if there is a breach of peace.
(1) Defendant owes the plaintiff a duty of reasonable car (2) which the defendant breaches (3) which is the cause-in-fact and proximate cause (5) of plaintiffs damages.
Legal duty owed to all foreseeable persons who may be injured by the defendants failure to follow a reasonable standard of care.
Cardozo legal duty owed to plaintiff if the plaintiff is a member of the class of persons who might be foreseeable harm by defendants negligence. Majority and Maryland.
A rescuer is a foreseeable person, as danger invites rescue. Firefighter rule may bar recovery for emergency personnel. MD has the firefighter rule when responding to unintentional tortious acts, as they are deemed to have assumed the risk.
Andrews legal duty owed to all persons, focuses more on proximate cause. Minority.
Negligence: Failure to act
No duty to act affirmatively, even when unreasonable - except where:
Assumption of duty once you start to act, you cannot abandon unless reasonable.
Placing another in peril.
By authority if you have ability to control another and actual authority to control another, you must act.
Negligence : Breach
A person must act like a reasonably prudent person under the circumstances.
Presumed to have average mental and emotional characteristics.
Particular physical characteristics are taken into account as to what a reasonably prudent person might do.
Intoxication is not taken into account unless the defendant is involuntarily intoxicated.
Children are held to the standard of care that a reasonably prudent child of the same age experience would be, except where the child engages in adult activities (RP person).
Negligence: Learned Hand approach
Foreseeability of the harm * severity of harm < burden of acting more prudently ? negligence.
Negligence Custom in industry
Considered as to what a reasonably prudent person would do, but it is not a complete defense. Custom may be so unreasonable as to be negligent.
Negligence Professionals & physicians
Expected to exhibit the same skill and knowledge as another minimally competent practitioner in the same profession.
If purported as a specialist, it is RP person in that profession with that same skill.
Physicians traditional rule is the locality rule ( in that same region.)
Modern trend is a national standard.
Negligence Informed consent
Duty of care to inform (1) all material risk of treatment (2) unknown to the patient, (3) its alternatives and (4) non-treatment, except:
Risks are commonly known
Plaintiff would have consented anyways despite the risks
Detrimental to patients health to inform them of risks, and professional in good standing would not inform the patient
Emergency exception where (1) actor could not consent, (2) risk of serious imminent harm, (3) a reasonable person would consent to care and (4) the practitioner has no specific knowledge that the patient would refuse.
MD: informed consent tests whether someone should have known the consequences of the action. Parents cannot waive gross negligence for a child, but they can waive simple negligence.
Negligence - Negligence per se
A violation of a crime, statute or regulation will impose the standard of care to others when (1) plaintiff is in the class of people intended to be protected, and (2) accident is the type of harm that the statute was intended to protect against.
Impossibility not possible to comply with the law.
Emergency justified the violation of the statute (RP person under the circumstances).
Violation of a statute by the plaintiff may substantiate comparative/contributory negligence.
MD: negligence per se is different. It is not per se breach, but rather proof that the person was acting negligently.
Negligence - Specific standards of care
Common carriers and innkeepers had a higher standard of care traditionally. Now relaxed for innkeepers (standard negligence).
Automobile drivers may have guests statutes where drivers of cars were only liable to their guests for reckless, grossly negligent, wanton or willful misconduct. MD: does not recognize guest statute. Same standard of care.
Emergency situation has same standard of care (RP person) but focuses on their acts within the same circumstances.
Breach of Duty: Res ipsa loquitor
the thing speaks for itself.
Only usable when you have circumstantial evidence of negligence.
To prove breach, (1) the accident must be a kind which does not happen in the absence of negligence, (2) caused by an agent or instrumentality within the defendants exclusive control, and (3) not due to the plaintiffs own fault.
Extended to medical malpractice, where it shifts the burden to the multiple medical professionals to prove that he or she was not the one at fault.
MD: res ipsa is not applicable in Maryland, as proof of negligence must be substantiated by a medical expert witness.
Causation: Cause in Fact
The plaintiff must demonstrate that the breach was the cause of his harm.
Cause-in-fact multiple ways to demonstrate.
But-for test the injury would not have occurred but for the defendants negligence.
Substantial factor test - (1) When negligence greatly multiplies the chance of an accident and (2) it is of the character that naturally leads to the accident. (When but-for fails).
Cause in Fact: Multiple tortfeasors, single harm
When harm caused by only one of a few defendants and it cannot be determined which one caused the harm, the burden of proof will shift to defendants.
Concert of action when two or more tortfeasors were acting collectively to cause the harm, all defendants are the cause in fact and are jointly and severally liable for the harm.
Cause in Fact: Loss of chance of recovery
If a physician negligently reduces the plaintiffs chance of survival, plaintiff can recover from the harm from the negligent misdiagnosis.
Chance of survival must be less than 50% at outset to invoke. Only a partial recovery.
Negligence: Proximate cause
Conduct may cause harm but the causal connection is too remote or coincidental to support liability.
Sometimes referred to as scope of liability.
3rd R. scope of liability. Is this the kind of risk that made defendants conduct tortious?
Andrews factors (1) natural and continuous link between cause and effect; (2) a substantial factor; (3) direct connection without too many intervening causes; (4) cause likely to produce effect; (5) defendant could have avoided the harm; (6) too remote in time?
Causes which break Proximate Cause
Causes in the way may break the chain of causation.
Intervening cause a factual cause that contributes to the harm
Superseding cause an unforeseeable intervening cause that breaks the chain of causation.
MD: boulevard rule failure to stop at a stop sign or yield to another driver will result in a finding of proximate cause.
Damages - what can be proven
Damages must also be proven.
Nominal damages cannot be recovered for negligence.
Actual damages must be proven.
Personal injury - plaintiff can recover for medical and rehabilitation services, pain and suffering and lost income.
Property damage plaintiff can recover the difference between the market value of property value before and after the injury. For personal property, courts will substitute cost of repairs at the plaintiffs discretion.
Punitive damages may be recovered when the defendant acted willfully, recklessly or with malice. Std: clear and convincing evidence.
A plaintiff who does not suffer personal injury or property damage cannot recover for economic losses.
Mitigation of damages
Plaintiff must take steps to mitigate damages.
Collateral Source rule
Traditionally, payments from outside sources would not be credited against the liability of any tortfeasor. Most states have modified the rule to prevent double recovery.
Joint and several liability
Two tortfeasors, both of whom are liable, can be liable for a single harm. Plaintiff can collect all of his damages from either defendant, but only up to the amount of the award.
Contribution if defendants are held joint and severally liable, one defendant who has paid more than his share may sue the other defendants to recover the damages.
Pure several liability
Each tortfeasor is only liable for his portion of the harm no joint liability.
The entire loss is shifted from one party to another usually by agreement.
MD: Limitation on Damages
MD: non-economic damages are capped due to tort reform.
Unintended personal injury and wrongful death suits are limited to $840k.
Medical malpractice suits are limited to $740k.
Survival actions where instant death occurred are limited to medical and funeral expenses.
Negligent infliction of emotional distress
Generally, a plaintiff may not recover for NIED (emotional damages alone).
Certain exceptions apply
Zone of danger a plaintiff may recover for emotional distress when (1) plaintiff is in zone of danger and (2) the plaintiff reasonably feared for his safety.
Bystander recovery a plaintiff may recover for emotional damages from witnessing harm to another who is (1) closely related to the bystander, (2) the plaintiff is present at the scene and (3) witnesses the harm.
Available when physician misdiagnoses a disease.
Available when a funeral home mishandles a body.
MD: does not recognize this cause of action.
When a decedents spouse, next of kin or personal representative brings suit to recover losses suffered as a result of the decedents death. Under state statutes, not common law.
MD: eligible class of plaintiff is spouse, next-of-kin or personal representative. Can recover for pecuniary damages. An eligible plaintiff can recover for children, including children of unmarried parents if so proven. One cannot recover for stepchildren.
A claim which is brought by a plaintiff who later dies. Permits the estate to continue the suit against the defendant.
A doctor may be held liability for failing to perform a contraceptive procedure which leads to pregnancy. Not generally permitted.
A doctors failure to diagnose a defect. Permitted in many states.
MD: recognized as a cause of action for parents, not child. Parents may recover damages of child rearing to the age of 18.
Damages spouses and children may recover for loss of consortium
When one person is held liable for anothers negligence.
Respondat superior an employer is liable for the tortious acts of their employees which arise within the scope of employment.
Detour is a slight diversion which serves the goals of the employer. Employer is still liable.
Frolic is a large divergence from the goals of the employer. Employer not liable for employees tortious acts.
Vicarious Liability and Independent Contractors
Employer not liable for the torts of independent contractor.
IC distinguished from employee in the following ways:
Terms of the agreement not controlling.
Employer has right to control the work of an employee; the greater control over an IC, the more likely to be called a de facto employee.
Employer liable for torts of IC for (1) inherently dangerous activities and (2) nondelegable duties, (3) the operators duty to keep premises safe for the public, and (4) duty to comply with safety statutes.
If an employer not liable under respondat superior, consider negligent hiring tort (traditional negligence).
Business partners partners in joint venture liable to each other for the torts of the other partners.
Requires (1) common purpose and (2) right of control; must be within scope of business purpose.
One may be liable for negligently entrusting a car, gun, or dangerous device to someone who is not in the position to care for it.
MD: only when car entrusted to a child or a drunk.
Dram shop liability
Limited liability for bars/bartenders for patrons who harm others after drinking there. MD does not recognize.
Mostly eliminated or restricted under statute.
Federal government the federal government has consented to be sued except for:
Certain torts (assault, battery, false imprisonment, malicious prosecution, abuse of process, libel, slander, misrepresentation, and interference with contractual rights)
When acting in discretionary functions (planning or decision making)
When engaged in traditional government activities (tax collection, military, admiralty).
State government: most states have waived immunity (see statute).
MD: government employees acting within their scope are liable for suit. Recovery limited to $200K/claimant/incident, and punitive damages are not available. Government employees are personally immune to actions within their official capacities made with malice/gross negligence.
MD municipalities: liability limited to $200K/claimant or $500K/occurrence
Government officials immunity
Immunity for discretionary functions done without malice or improper purpose, but may be found liable for ministerial acts.
Westfall Act precludes liability for federal employees for violations of state laws.
Interspousal immunity completely eliminated.
Parent-child immunity traditionally, parents immune from suit from child; now, immunity limited to core parental activities. Child may still sue for auto accidents, sexual abuse, intentional torts or acts in dual capacity.
Charitable immunity traditionally, charities immune; now, much reduced with caps on damages.
A plaintiffs failure to exercise due care which is the cause of her harm is a complete bar to recovery. MD.
Last clear chance Doctrine
If a defendant had a clear chance to avoid the harm but failed to do so, it will negate the plaintiffs own contributory negligence. MD.
Helpless plaintiff - peril from which the plaintiff cannot escape. Defendant liable if (1) he knew or should have known of the peril and (2) had an opportunity to avoid harming the plaintiff.
Inattentive plaintiff peril due to plaintiffs own inattention defendant liable if he had actual knowledge of the peril and failed to avoid the harm.
The failure to observe duty of reasonable care to oneself will reduce the amount a plaintiff may recover. Not MD.
Pure 100% - (Pls liability) = amount to recover.
Modified majority will bar recover if plaintiff is more liable for harm than defendant.
Minority will bar recovery if plaintiff is equally or more liable for harm than defendant.
Court will tally the negligence of all defendants combined.
Assumption of the risk doctrine
When a plaintiff knowingly and willing accepts the risk of harm, the plaintiff cannot recover for damages.
Effectively, the assumption of risk is an agreement to lower the defendants duty of reasonable care.
Exculpatory clauses are generally enforceable except where (1) disclaimer of reckless/wanton conduct or gross negligence, (2) gross disparity of bargaining power between parties, (3) services of great importance to the public, or (4) subject to a K defense.
MD: plaintiff (1) aware of risk, (2) understood nature of risk, (3) voluntarily confronted the risk.
Will apply to minors on objective standard subject to childs age, intelligence and experience.
Strict Liability: Abnormally Dangerous Activities
Factors considered are (1) whether foreseeable and highly significant risk of physical harm even if reasonable care is exercised, (2) gravity of harm, (3) uncommon nature of activity, (4) value to community, (5) appropriateness to the location.
Only strictly liable for harm that flows from risk that made the activity abnormally dangerous.
Strict Liability: Dangerous Wild Animals
Wild animals a species or a class of animal which is not by custom devoted to the service of mankind in the place it is being kept.
Animals under the owners control may be held liable for trespassing, except where the owner does not know or have reason to know that the pet is intruding on anothers property. Defenses
Contributory negligence is not applicable.
Comparative negligence will reduce recovery.
Assumption of the risk liable for a taunting plaintiff.
Statutory privilege party performing an essential public service exempted from strict liability, but may be liable in negligence.
Strict Liability: Defective Products
Strict liability if (1) product is defective, (2) defect existed at the time the product left defendants control, and (3) defect caused the harm.
Scope: anyone in the business of selling a product that is defective can be liable manufacturer, distributor, seller.
Types of defects - (1) Manufacturing defect deviation from what the manufacturer intended; does the product conform to the manufacturers specifications?
Defendant must be in the business of selling the product, and the plaintiff can chase indemnification up the chain to the manufacturer. A casual seller is not strictly liable for a defective product.
Plaintiff doesnt need to be privity of contract with the defendant must be foreseeably injured by the defective product.
Design defect has two tests
a. Consumer expectation test design defect if less safe than contemplated by ordinary consumer.
b. Risk-utility test defective if it could have been made safer by additional safety features.
Strict Liability: Failure to warn
When product does not include an adequate warning.
Learned intermediary manufacturer does not have a duty to warn consumer directly when it warns the doctor who prescribes the drug, except where manufacturer is aware that drug will be given directly without personal intervention of health care providers.
Defenses to Design Defect / Failure to Warn
Comparative Negligence, yes.
Contributory negligence, no, except in unforeseeable product misuse.
Assumption of the risk, yes.
Substantial change to product cuts off liability.
Compliance with government standards is inconclusive evidence that product is not defective.
Federal law preempts state tort claim.
State of the art defense for failure to warn or design defect, manufacturer can introduce evidence of what existed at the time the product was manufactured or introduced.
May be a complete defense, or may be relevant evidence.
Strict Liability: Warranties
When a product turns out to be more dangerous than the consumer thought, it is possible to frame the breach of contract allegation as a tort claim.
Express warranties, Implied warranty of merchantability, implied warranty of fitness
Generally, manufacturers can disclaim warranties other than implied warranty of merchantability.
Valid defenses are comparative negligence, assumption of the risk, and substantial change.
Parental Liability for Children
Generally not liable for the torts of their children, except when (1) child is an agent (2) specifically by statute.
Parent may be liable to a third party for breach of duty of reasonable care to control the child when parent has (1) ability to control and (2) knows or should know of the necessity to control.
MD: only intentional torts of a child, with a limitation of $10K.
a parent may use reasonable force or impose reasonable confinement to discipline her child.
False Imprisonment for MD
(1) intent to confine or restrain another (2) to a bounded area (3) which directly or indirectly results in confinement (4) and plaintiff is aware of confinement or harmed by it.
MD: Dog Bite Statute
dog owner strictly liable for bites unless plaintiff was (1) committing/attempting to commit trespass or (2) teasing, tormenting, abusing or provoking the dog.
Liability: Domestic Animals
Domestic animals no strict liability, but may have negligence liability.
Dogs: dog-bite statute may impose strict liability if you knew of the dogs dangerous propensity
Animals under the owners control may be held liable for trespassing, except where the owner does not know or have reason to know that the pet is intruding on anothers property.