Torts Law School Legends Professor Richard Conviser I. Intentional Torts A. General Points 1. Super-sensitive plaintiff – Do not take the super-sensitivities into account. Deal with plaintiffs as if they are average persons. a. Exception – Where the defendant in fact knows of the sensitivities. 2. Everybody is liable for intentional torts! 3. Transferred Intent Doctrine – Operates in two ways: a. Intent can be transferred from person to person. b. Intent can be transferred from tort to tort – Must fall within the old trespass list of five torts: i. Battery ii. Assault iii. False Imprisonment iv. Trespass to Land v. Trespass to Chattels Page 2 TORTS LAW SCHOOL LEGENDS B. Battery – A harmful or offensive contact with plaintiff’s person. 1. Offensive Contact – Unpermitted contact. 2. With plaintiff’s person – We are talking about more than just touching the body of the plaintiff. If you touch anything connected with plaintiff’s person, this is enough. C. Assault 1. Apprehension – Three ways to test on apprehension requirement a. Must be reasonable. b. Do not confuse apprehension with fear or intimidation. c. Apparent ability is all that is necessary. 2. Immediacy a. Words alone are not enough. b. Words coupled with conduct. c. Words can undo conduct and any reasonable apprehension. D. False Imprisonment – A sufficient act of restraint in a bounded area. 1. Sufficient Act of Restraint – Common sense fact analysis. a. Threats are enough. You do not need the actual application of force. b. An “act” of restraint can consist of inaction. In order for this to happen, you have to find such that the defendant has an obligation to act. c. Plaintiff must know of the confinement at the time. 2. Bounded Area a. An area is not bounded if there is a reasonable means of escape. Page 3 TORTS LAW SCHOOL LEGENDS b. The plaintiff has to know about the reasonable means of escape. E. Intentional Infliction of Emotional Distress – Outrageous conduct and damages. 1. Outrageous Conduct – It really has to be OUTRAGEOUS! The conduct must be very extreme. a. Look at the type of plaintiff you have – Young children, elderly persons, pregnant women, adults with supersensitivities that defendant knows of. b. Conduct is continuous. 2. Damages – Must show substantial emotional distress. F. Trespass to Land – The defendant has invaded plaintiff’s land. 1. Physical Invasion a. Does not require that the defendant actually go onto the land. b. Some physical object does have to go onto the plaintiff’s land. 2. Plaintiff’s Land a. Includes more than the surface of the property. It includes the space going up and down from the surface for a reasonable distance. G. Trespass to Chattels and Conversion 1. Which are you going to use? a. If there is a lot of damage, it is conversion. b. If there is only some damage, it is trespass to chattels. 3. Two types of damage: a. Physical damage or destruction b. Dispossession Page 4 TORTS LAW SCHOOL LEGENDS II. Defenses to Intentional Torts A. Consent 1. Plaintiff must have capacity. 2. Determine if there was consent a. Express consent – Words were used. b. Implied consent i. Apparent Implied Consent a) Custom and usage b) Plaintiff’s conduct ii. Implied by law 3. Determine if defendant has exceeded the boundaries of the consent given. B. Defense Privileges – Self Defense, Defense of Others, Defense of Property 1. The timing requirement must be satisfied – The tort against which you are defending is now occurring or is just about to occur. 2. Make sure that the defense test is satisfied – All you need is a reasonable belief that a tort is being committed. a. General Rule – There is no duty to retreat before using self defense. b. Exception (strong modern trend) – Before you use serious force, you should retreat if you can do so safely and are not in your own home. 3. You cannot exceed the boundaries – You cannot use too much force. a. Proper Force Rules i. For self defense and defense of others you can use reasonable force including deadly force. Page 5 TORTS LAW SCHOOL LEGENDS ii. For defense of property you can use reasonable force, but never force that will cause serious bodily injury. C. Necessity 1. Can only be used where the tort is a property tort. 2. Determine if it is a public necessity case or a private necessity case. a. Public necessity – For the benefit of many and is an unlimited privilege. b. Private necessity – For the benefit of a limited number of people. The defendant will be liable for any damage caused. III. Plaintiff’s Dignitary Interests A. Defamation – Deals with injury to the plaintiff’s reputation. 1. Prima Facie Case a. Defamatory statement about this plaintiff i. Defamatory Statement a) Requires a defamatory assertion of fact. b) If it is not clearly defamatory on its face and/or does not clearly refer to the plaintiff on its face, the plaintiff will have to bring in additional evidence to make those points. b. Publication i. There must be a communication to a third person. ii. The communication may be made either intentionally or negligently. iii. The third person must be capable of understanding the defamatory content. Page 6 TORTS LAW SCHOOL LEGENDS c. Injury to Plaintiff’s Reputation i. Injury is presumed for all writings. ii. Injury is presumed for slander per se; otherwise, it is not. In that case, the plaintiff must prove a money injury to prove injury to reputation. a) Slander per se categories 1) Any defamatory statement that goes to the plaintiff’s business or profession. 2) Any statement attributing criminal activity to the plaintiff. B. Defenses to Defamation 1. Consent 2. Truth – It is a true statement. 3. Absolute and qualified privileges – Where from a societal standpoint we want people to speak out without worrying about defamation liability. a. Absolute Privileges i. Communications between spouses. ii. The three governmental branches – executive, legislative, judicial b. Qualified Privileges – Can be lost if abused. If we would like to encourage this type of communication, give defendant a qualified privilege. C. First Amendment 1. The First Amendment is at issue when the matter is of public interest. 2. If the First Amendment applies, we add two prima facie case requirements and subtract one defense. a. Extra prima facie case requirements Page 7 TORTS LAW SCHOOL LEGENDS i. Falsity – Plaintiff must prove that the statement was false. ii. Fault – The plaintiff must prove that the defendant was at fault. a) Three types of fault 1) Negligent 2) Reckless 3) Intentional b) Public Figure Plaintiff – Must show intentional or reckless tortious conduct in order to recover. ` Negligence is not enough. c) Private Person Plaintiff – Can recover by showing negligence. b. Subtract defense of truth D. Invasion of Right of Privacy 1. Appropriation by the Defendant of Plaintiff’s Name or Picture for Defendant’s Commercial Advantage. a. Commercial Advantage – Limited to the advertisement or promotion of goods or services. 2. Intrusion by Defendant into Plaintiff’s Privacy or Seclusion a. Common sense fact analysis – Would it be objectionable to the reasonable person? 3. Publication of Facts Placing Plaintiff in a False Light a. Where a statement has been widely disseminated that casts the plaintiff in a negative, false light, but it does not quite amount to defamation. 4. Publication of Private Facts about Plaintiff Page 8 TORTS LAW SCHOOL LEGENDS a. Would an average reasonable person object to wide dissemination of these facts? Are the facts sufficiently private? E. Defenses to Invasion of Privacy 1. Consent 2. The Defamation Privileges – Absolute and qualified privileges apply to the publication branches. IV. Negligence A. Prima Facie Case 1. Duty a. Foreseeable Plaintiff – Duties of care are only owed to foreseeable plaintiffs. i. Unforeseeable Plaintiff Fact Pattern – The defendant will act negligently towards a clearly foreseeable plaintiff, which ultimately injures someone else. 1) Andrews Approach – Everybody is a foreseeable plaintiff. 2) Cardozo Approach – (Majority Rule) Whether or not the person is within the foreseeable zone of injury. b. Standard of Care i. The Reasonable Person Standard 1) Objective Test Standard a) We invent a hypothetical reasonable person. b) We assign to this hypothetical person traits and characteristics. Page 9 TORTS LAW SCHOOL LEGENDS c) Measure what the defendant did against what we would have expected our hypothetical person would have done. Do not look at the defendant’s own personal traits and characteristics. ii. The Children Standard 1) Children under four are deemed incapable of negligence. 2) Look to see what would have been done by a child of like age, intelligence, and experience. a) Exception – Where the child is engaged in an adult activity, the reasonable person standard applies. iii. The Professionals Standard 1) A reasonable professional in the same or similar community standard. 2) Specialists – Take expertise into account. iv. Common Carriers and Innkeepers 1) Held liable for even slight negligence to passengers and guests. v. Owner-Occupier Standards 1) Make sure the defendant is an owner or occupier, or a person who is in privity with one. a) Privity Examples – family members, employees 2) Did the injury occur on or off the land? 3) Assume injury is on the land. a) Threshold inquiry – Is plaintiff an undiscovered trespasser? Page 10 TORTS LAW SCHOOL LEGENDS i) If so, there is no duty owed to an undiscovered trespasser. This means that there is no standard of care. They always lose. b) If the plaintiff is any other kind of plaintiff (discovered trespasser, licensee, invitee), ask what caused the injury. Was it an activity or a dangerous condition? i) Activity Standard – This is an ordinary negligence case with a reasonable person standard. ii) Dangerous Condition Standard – Plaintiff’s status is relevant. The owner-occupier will owe different kinds of plaintiffs a duty with regard to different types of dangerous conditions. 4) Types of Plaintiffs for Dangerous Condition Standard a) Discovered Trespasser – Owner-occupier is responsible for artificial conditions involving a risk of serious injury that he knows of. b) Licensee – Someone who is on the land for his own purpose. Owner-occupier is responsible for dangerous conditions that he knows of. c) Invitee – Someone who is on the land for the purposes of the owner-occupier. Owner-occupier is responsible for dangerous conditions that he should know of. There is a duty to make a reasonable inspection of the premises for the benefit of invitees. Page 11 TORTS LAW SCHOOL LEGENDS vi. Statutory Standard of Care 1) Two-part Test a) Plaintiff must fall within the protected class. b) Statute must be designed to prevent this kind of harm. 2) If the statute is inapplicable, apply another standard. 3) If the statute does apply and has been violated, this means that there is “negligence per se.” If an applicable statute has been violated, there will be a conclusive presumption of negligence on the defendant’s part. 4) Exceptions a) Where compliance would be more dangerous, non-compliance is excused. b) Impossibility. c. Miscellaneous Duty Problems i. Affirmative Duty to Act 1) General Rule – There is no affirmative duty to act. 2) Exceptions a) Special relationship between parties – family members, employers and employees, common carriers and passengers b) Where there is a duty to control the conduct of third persons Page 12 TORTS LAW SCHOOL LEGENDS i) Where you have the right and ability to control the third person; and ii) You know of facts that should get you to do that. ii. Negligent Infliction of Emotional Distress 1) Plaintiff must suffer some physical injury. 2) Plaintiff must be within the target zone of defendant’s negligent conduct. 2. Breach – Negligent Conduct a. Res Ipsa Loquitur – The facts will make clear that the plaintiff does not have enough solid, hard evidence to establish negligent conduct on defendant’s part. i. The Probability Test 1) This usually would not happen unless someone was negligent. 2) It was probably this defendant that was negligent. This is most often proven by showing the defendant had exclusive control of the instrumentality causing the injury. 3) The plaintiff must be free of contributory negligence. 3. Causation a. Actual Causation – The true causation part of the analysis. Look at the facts and ask yourself whether or not the defendant’s negligent conduct actually cause the injury. i. “But For” Test – But for the defendant’s negligent conduct, would this injury have occurred? 1) If the response is negative, the plaintiff is almost always going to lose. Page 13 TORTS LAW SCHOOL LEGENDS 2) Sometimes, though, there is actual causation or the strong probability of it. Therefore, use another test. ii. Substantial Factor Test – Defendant’s conduct was a substantial factor in causing injury. iii. Alternative Causes Test – There are two or more negligent defendants, but there is uncertainty as to which one caused the injury. b. Proximate Causation – A way for the jury to let a negligent defendant who actually caused an injury off based on lack of foreseeability. i. Definitions 1) Direct Cause Case – An uninterrupted chain of events. 2) Indirect Cause Case – Intervening act or event that combines with the first negligent act to cause the resulting injury. ii. Proximate Causation Rules 1) If the result was unforeseeable, then let the defendant go. 2) If the result was foreseeable, then hold the defendant liable. a) Exception – If, in an indirect cause case, the intervening act was an unforeseeable intentional tort or crime, let the defendant go even though the result was foreseeable. 4. Damages a. Take the plaintiff’s property as you find it. Page 14 TORTS LAW SCHOOL LEGENDS V. Defenses A. Contributory Negligence – In a contributory negligence state, plaintiff’s contributory negligence completely bars a recovery. B. Comparative Negligence – In a comparative negligence state, a plaintiff’s contributory negligence lowers the amount of recovery. 1. Partial Comparative Negligence State – You will not achieve an award if you are more negligent than the other party. 2. Pure Comparative Negligence State – You can achieve a recovery even if you were more negligent than the other party. C. Assumption of Risk 1. Implied Assumption of the Risk a. You knew of the risk. b. You voluntarily proceeded in the face of it. 2. Last Clear Chance Doctrine – Plaintiff is contributorily negligent. If plaintiff is contributorily negligent, and the defendant still has the last clear chance to avoid the accident and does not take it, the plaintiff will be forgiven his earlier contributory negligence. a. Last clear chance doctrine is only found in contributory negligence state. VI. Strict Liability A. Definition – Liability without fault on the defendant’s part. B. Specific Types of Cases 1. Ultrahazardous Activities – If you are engaged in an ultrahazardous activity, you are strictly liable. 2. Animals – Liability for domestic pets only after the first bite. If it is a dangerous animal, there is strict liability. C. Defenses Page 15 TORTS LAW SCHOOL LEGENDS 1. Contributory Negligence State a. Knowing contributory negligence – Complete defense. b. Unknowing contributory negligence – No defense in a strict liability case. 2. Comparative Negligence State a. Knowing and unknowing contributory negligence – Offset the award. VII. Products Liability A. Plaintiffs – Anyone in the foreseeable zone of risk. B. Defendants 1. Negligence a. Retailers and wholesalers – Almost never. b. Manufacturers – Almost always. 2. Strict Liability – Hold them all liable. VIII. Vicarious Liability A. Respondeat Superior – Employers are liable for torts of employees committed within the scope of employment.