torts

• 1. No incapacity defenses to IT claim. (e.g., little children liable). All treated as

• if normal.

• 2. Require intent. D intends a tort if he acts with the purpose of producing the legally forbidden outcome.

• Transfer intent – starts with one intent but another result occurs. The intent transfers.

• 1. D commits a harmful or offensive contact (contact is offensive if it would not be

• permitted by person of ordinary sensitivity)

• 2. Contact is with P’s person (can be things connected with person)

• 1. D must place P in reasonable apprehension. (apprehension = knowledge)

• 2. Apprehension must be of an immediate battery.

• a. Words alone lacks immediacy – verbal threat alone is not assault.

• b. Even if you have conduct, words can negate the immediacy.

• 1. D must commit an act of restraint.

• a. Threats are sufficient (plausible to a reasonable person)

• b. Omission can be act of restraint (e.g., disable person left in plane by flight crew)

• c. Act of restraint counts (as false imprisonment) only if D’s act is one that P is aware of or if it harms P. (36:50)

• 2. P must be confined in a bounded area.

• a. Area is not bounded if there is reasonable means of escape that P can reasonably discover.

• Reckless conduct by D will be sufficient, don’t need intent.

• 1. D must engage in outrageous conduct.

• Outrageous – conduct that exceeds

• all bounds of decency tolerated in a civilized society. (50)

• a. Mere insults are not outrageous.

• b. Hallmarks of outrageousness – (1) conduct that happen repetitively; (2) abuse of power

• relationship; (3) P is a member of a fragile class (young children, elderly people, pregnant women).
• 2. P must suffer severe emotional distress.

• 1. D must commit an act of physical invasion.

• a. D goes on P’s property. (D need not know he was on P’s property). Intent does not drop out of this tort. If D got onto P’s land on purpose but did not know, then that intent transfers.

• b. Can throw something on P’s property. (rock through neighbor’s window). The item must be physical (noise, for example, is not trespass).

• 2. There must be land.

• Interference with tangible personal property

• (personal property = anything but real estate)

• Interference:

• a. Damage with personal property.

• b. Take it away from owner.

• Degree of interference determines which tort.

• a. If slight = trespass to chattel.

• Major harm = conversion. (in conversion, P not limited to recovering cost of repair but can recover full market value of the item).
• Think of conversion as a “forced sale” – You Break You Buy!

• Consent – if D wants to raise consent, 1^st thing to do is determine if P has legal capacity. Children can consent to age-appropriate invasions (two kids can agree to wrestle, but kids cannot consent to sex).

• a. Express consent – words in quotation marks. However, this is ignored if obtained

• through fraud or duress (negates express consent)

• b. Implied consent:

• i. Implied from custom (e.g., P engages in

• activity where certain invasion is routine, law assume that P consents. Sorts
• that involve physical contact for example).

• ii Implied consent based on D’s reasonable interpretation of P’s objective conduct (body-language consent). P’s subjective mental process is legally irrelevant.

• All consent has a scope. If D exceeds this scope, D will be liable for tort.

• this privilege requires proper timing. D must act while threat is in progress

• or when threat is imminent. No revenge – heat of the moment ok.

• Whether D had a reasonable belief that the threat was genuine.

• Degree of force – D entitled to use

• amount of force reasonably necessary
• to respond to the threat.

• May never used deadly force to

• protect property.

• i. Self defense

• ii. Defense of others

• iii. Defense of property

• 1. D must make defamatory statement specifically referring to P.

• a. Statement adversely affects P’s reputation.

• b. Mere insults do not adversely affect reputation.

• c. Has to be an assertion of fact reflecting negatively on trait of character.

• d. Statement of opinion can be defamatory if reasonable person can conclude that it was fact-based (telegraphing factual information).

• e. If small group, then court says defamatory against all, but this does not apply to big groups.

• f. P must be alive when the defamatory statement was made.

• 2. D must publish the statement.

• a. Publication means D revealed the statement to at least 1 person other than P.

• b. Publication does not have to be intentional. Negligence satisfy the element.

• 3. Might have to prove damages.

• a. Libel – any defamation that is permanent or semi-permanent in format (embodied in tangible medium of expression, like a letter, a news story). Don’t have to

• prove damages in libel – damages is presumed.

• b. Slander – spoken defamatory statement.

• Slander per se – P gets same rule as libel plaintiff. Does not have to prove damages.

• (relating to P’s business or profession, that P committed a crime of moral
• turpitude, imputing lack of chastity (means same as virginity) to a woman, that P suffers from a loathsome disease – leprosy, venereal disease)

• Slander not per se – P is obligated to prove damages. P must demonstrate some kind of economic loss.

• Consent – (see above)

• Truth – always available to D.

• Privileges:

• Absolute privilege – arises from D’s status.

• 1. Spouses talking to each other.

• 2. Statements made by the officials of the government in course of duty. (e.g., in judicial branch – privilege extended to judge, attorney, witnesses)

• 3. The media – for broadcasts or reports of public proceedings.

• Qualified privilege – circumstance in which statement was made.

• Any case where there is public interest in encouraging candor. Examples: references or recommendation, statements made to the police …

• Must follow 2 conditions to be within

• the boundary of the privilege:

• 1. Must have reasonable belief in truth of the statement. (honest error)

• 2. Confine yourself to matter relevant to subject of the conversation.

• The Special Case – arises whenever D’s

• statement deals with a matter of public concern. There is 1^st amendment interest in full conversation. Don’t want free speech chilled by
• defamation lawsuits. So for public concern conversation, P has harder case to win. P has to prove 2 extra elements:

• 1. P has to prove falsity of the statement. (statement presumed to be true)

• 2. P has to show fault. P must show that D did not disseminate statement with a

• reasonable belief in its truthfulness. If P is public figure, then P must show D made the statement recklessly or intentionally. If P is a private figure,
• it will be enough to show D made the statement negligently.

• D uses P’s name or image for a commercial advantage.

• Newsworthiness exception – not tort to run pic of same person to help sell newspaper or magazine.

• invasion of P’s physical seclusion in a way that
• would be highly offensive to the average person. P has to be at a place where he has a reasonable expectation of
• privacy.

• widespread dissemination of a material falsehood
• about the P that would be highly offensive to a reasonable person. This tort does not require any form of fault even reasonable belief in accuracy of statement will not be a defense if D gets it wrong.

• widespread

• dissemination of confidential information about the P that would be highly
• offensive to a reasonable person. (info in this case is true)

• Newsworthiness

• exception applies to disclosure.

• Dual life

• – info in one social circle goes to another circle (this is not a tort).

• 1. Duty – a. Obligation to take reasonable case (risk reducing precaution).
• b. Owed duty to foreseeable victims.
• c. Exception to zone of danger – rescuer who comes on to the scene is not barred from law suit.
• d. (level of care owed) Reasonably prudent person acting under similar circumstances.
• 2. Breach

• Someone enters land. While there the person gets hurt & he then sues possessor of land. (entrant v. possessor)

• What kinds of entrance are we talking about?

• 1. Undiscovered trespasser – owed NO duty of care.

• 2. Anticipated trespasser – when there has been past trespass. Possessor must protect this

• person from a condition that meets these 4 test:

• a. Duty only arises regarding artificial

• condition

• b. Condition has to be highly dangerous. No duty to protect from moderately dangerous conditions on the land.

• c. Condition has to be hidden from trespasser. So no protection from open and obvious condition.

• d. Possessor knew about the condition in advance.

• Possessor only need to protect anticipated trespasser from the known manmade deathtraps on the land.

• come onto land with permission but who do not confer any $ benefit upon possessor. (social guest, solicitor who comes to your door—implied consent for them to enter via custom)

• Duty owed:

• a. Condition has to be concealed

• b. Condition has to have been known in advance by possessor.

• Possessor got to protect license from all known traps on the land.

• comes onto land with permission & coveys benefit to possessor or entering

• property open to public at large (grocery store; shopping mall; airport)

• Possessor must protect invitee from

• any condition on land.

• a. Condition has to be concealed

• b. Condition must be one that possessor that either knew in advance or could have discovered through a reasonable inspection.

• Possessor owes invitee a duty to protect from all reasonable knowable traps on the land.

• Statue that deals with specific conduct.

• a. That P is a member of class of persons that the statute is trying to protect.

• b. That the injury or accident that occurred is in the class of risk that statute is trying to prevent.

• Statute will become standard of care when P satisfies a and b.

• Doctrine shuts down any argument about circumstances. Violation of statutory command is

• treated as negligence per se

• Situations where class of person and class of risk is satisfied but you should not use statute as standard of care:

• 1. Obeying the statute is more dangerous than violating it.

• 2. Compliance was impossible under the circumstances.

• A negligent D, and that negligence will cause no

• trauma to P’s body. Instead, the damage upon P will be emotional. When can such a P succeed in claim against D?

• 3 ways to recovery:

• 1. The near-miss fact pattern – negligent D almost commits trauma upon P. D placed P

• in a zone of physical danger which results in P’s distress. Other parties outside the zone of danger are not allowed to recover.

• P must also prove that as result of distress he suffered subsequent physical manifestations due to the distress.

• 2. The Bystander fact pattern – P will witness a negligent injury to a close family

• member. P can recover for witnessing if P was physically there as the incident
• happened and P is a close family member.

• 3. Relationship cases – P and D are not strangers. Emotional distress is highly foreseeable given nature of relationship. (doctor / patient; funeral parlor / and relatives of the deceased)

• 1. That the accident is of a type normally

• associated with negligence. (P can rule out a non-negligent possibility)

• 2. Accident or injury is normally due to the negligence of someone in D’s position. (how fact finder can know P is suing the right person?) Show that D had exclusive

• control of the object in question.

• Breach is factual cause if it satisfies “but for” –

• “but for” the breach P would not have been injured today.

• Multiple Ds:

• 1. Merged causes – 2 negligent Ds and the combined causes produced the harm to P. Proper test is The Substantial Factor Test: a breach is a substantial factor if it would have been able to cause the injury by itself if it had been the only breach.

• 2. Unascertainable cause – (3 dudes hunt, two shot, one shot hit him) burden of proof shifts to D.

• Joint and severally liable if D cannot talk his way out of the case.

• Fair = make people pay for the foreseeable consequences of their actions.

• · 2 kinds of proximate cause questions:

• 1. Direct cause question – D commits a breach and P is instantly injured. Outcome almost

• always foreseeable.

• 2. Indirect cause question – D commits a breach and additional events happen … then P suffered harm.

• The well-settled quartet:

• a. Intervening negligent medical malpractice – this is foreseeable. Therefore D should pay

• b. Intervening negligent rescue – D liable for additional harm caused by subsequently negligent rescue. Rescue is foreseeable and bad rescue is then also foreseeable. D is proximate cause of additional harm.

• c. Intervening reaction / protection forces – D cause others to react in a way that triggers more harm. D proximate cause.

• d. Subsequent accident or disease – P after being hurt by D gets injured again later. Reason – the harm left P in a weakened and more injury-prone position. D is proximate c.

• D can establish this by showing that P has failed to

• exercise proper care for his own safety.

• Proper care – reasonable prudence.

• P violate statute – this can show falling below

• proper care (jaywalking).

• Jury can compare the fault of P and D … and assign each party a percentage number that reflect their respective degree of fault.

• This process is committed to the jury’s discretion.

• · 2 kids of comparative negligence:

• 1. Pure comparative N = strictly by the numbers. If P assigned majority of fault, P will still recover something (P 90% liable gets 10%). This is the default rule

• on the Bar exam.

• 2. Modified / Partial N = if P’s fault goes over 50% then it’s an absolute bar and P gets nothing. (40% faulty P gets 60%; 55% faulty P gets 0).

• a. Creates a foreseeable risk of serious harm even when reasonable care is exercised.

• b. Activity not a matter of common usage in the community.

• Proprietor of that activity is strictly liable for any harm that results.

• a. D is a merchant (routinely deals with goods of this type)

• No requirement of privity of K for strict liability.

• b. Product must be defective:

• i. Manufacturing defect – differs from all the others came off assembly line in a way that make it more dangerous than consumers would expect. (product departs from its intended design; the

• one-in-the-million product)

• ii. Design defect – another way it could be constructed that: (1) is safer, (2) economical, (3) practical.

• iii. Information defect – product cannot be made safer and it still has risk not obvious to consumers. Product must have

• appropriate warning. (if can be designed safer, then even warnings cannot remove liability)

• iv. P must show that product has not been altered since it left manufacture’s hands.

• v. P must have been making a foreseeable uses of the product

Unreasonable interference with person’s ability to use an enjoy his own land. Can be intentional or without any fault at all. Courts normally balance interest between 2 parties.

• 1. EE – ER liable for torts of EE provided committed in scope of employment.

• (intentional torts tend to be outside scope of employment)

• 2. Ind contractor and hiring party – no vicarious liability. (land possessor is

• vicariously liable if ind contractor hurts invitee)

• 3. Owner of car and driver of car – owner not VL for torts committed by driver.

• Exception – if you lend to them so they can do errand for you.

• 4. Parents not VL for torts of their kids. (no real exceptions)