BARBRI – TORTS SHORT OUTLINE
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I. INTENTIONAL TORTS - VERY COMMON ON THE BAR; STRAIGHT FORWARD A. Battery 1. Intent – defendant desires to bring about the forbidden outcome OR acts with knowledge that the outcome is virtually certain to come about 2. Harmful or Offensive Contact (harmful or unpermitted) a. Hypersensitivity is not taken into account 3. Contact was with the plaintiff’s person (or objects connected to it) a. Direct or Indirect B. Assault 1. Intent – defendant desires to bring about the forbidden outcome OR acts with knowledge that the outcome is virtually certain to come about 2. Defendant places the plaintiff in apprehension (knowledge or awareness) 3. Of an immediate battery a. Mere words are not enough b. Words can negate immediacy (“I am going to hit you later”; “I would hit you if…”) C. False Imprisonment 1. Intent – defendant desires to bring about the forbidden outcome OR acts with knowledge that the outcome is virtually certain to come about 2. Defendant must commit an act of restraint a. Threats can be an act of restraint b. Omission (i.e. handicapped on the plane) can be an act of restraint 3. Plaintiff must know about it OR be harmed by it 4. Confined to a bounded area a. Have to be locked IN a place (not being kept OUT) b. It is not bounded if there is a reasonable means of escape that plaintiff can discover D. Intentional Infliction of Emotional Distress 1. Extreme and Outrageous Conduct a. Exceeds all bounds of decency; mere insults are not outrageous b. Look for plus factors: (1) continuous; (2) common carrier/inn keeper; (3) plaintiff is in a fragile class of persons – elderly, young children, pregnant women, minorities) 2. Severe Emotional Distress Results E. Trespass to Land 1. Intent – defendant got to the place on purpose (mistake of ownership doesn’t matter) 2. Physical Invasion – either by the person OR by propelling a tangible object a. Invasion of land – includes subsurface and air space to a reasonable distance 3. There are three ways to enter onto another’s land a. Intentional entry – one is liable for intentional entry; no damage is required; plaintiff can collect nominal damages (mistake of ownership is no defense) b. Negligent/reckless entry – damage to land is required for liability c. Accidental entry – no liability F. Trespass to Chattel 1. Intentional invasion of someone else’s personal property a. Invasion – damaging the chattel OR depriving the owner of possession b. Intent – that you act intentionally; mistake of ownership is not a defense G. Conversion 1. Intentional invasion or someone else’s personal property 2. There must be an extensive, severe harm. 3. Similar to trespass to chattel (more serious harm); they are mutually exclusive 4. Remedy – may elect cost of repair (remedy for trespass to chattel) OR the full value of the item involved. Basically, this is a “forced sale.”
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H. AFFIRMATIVE DEFENSES TO INTENTIONAL TORTS 1. Consent a. There must be capacity b. There are two ways to consent (1) Express – words (but can’t be as a result of fraud or duress) (2) Implied (a) Custom or Usage (i.e. sports) (b) Defendant’s reasonable interpretation of plaintiff’s objective conduct c. It is possible to exceed the scope of consent (then liable as if no consent were given) 2. Self Defense, Defense of Others, Defense of Property a. Two conditions (1) Timing condition – the tort is in progress or imminent; NO REVENGE (2) Accuracy requirement – defendant must reasonably believe the interests are being threatened (reasonable mistakes are allowed) b. Only entitled to the force necessary to respond to the threat (i.e. the same amount of force that the aggressor is using) (1) Deadly force is only allowed when there is a threat to life or serious bodily injury. It is never allowed to protect property. 3. Necessity a. A person is allowed to enter the land of another in an emergency situation to aver injury to himself or to avert property damage to one’s chattel. Not liable for trespass, but liable for damage caused to the property. b. Public Necessity – not liable for any damages c. Private Necessity – liable for damages caused (no nominal or punitive damages) d. Landowner cannot chase the person away; will be liable for damages that result (battery) 4. Discipline – parent or teacher may use reasonable force to discipline II. DEFAMATION A. Common Law Defamation 1. Defendant makes a defamatory statement specifically identifying the plaintiff a. Adversely affects the plaintiff’s reputation b. Mere name calling is NOT defamatory c. There must be an allegation of fact that will tend to reflect negatively on a trait of character (i.e. loyalty, honesty, sexually morality) d. Plaintiff must actually be living 2. Publication – communication to at least one other party; inadvertent publication is included 3. Damages, maybe a. Libel (written) – general damages b. Slander (oral) (1) Slander per se – general damages (a) Defamatory Statement about Business or Profession (b) Defamatory Statement that Woman is Unchaste (c) Defamatory Statement that plaintiff has committed a Crime of Moral Turpitude (d) Defamatory Statement that plaintiff has a Loathsome Disease (2) All other slander requires economic damages B. Constitutional Defamation – if it is public official or public concern, two elements are added 1. Fault on the part of the defendant – not a reasonable error a. If the plaintiff is a public figure, the defendant must have acted in malice b. If the plaintiff is a private figure, the defendant must have acted negligently 2. Falsity of the statement – basically shifts the burden of proof to the plaintiff
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C. DEFENSES 1. Consent (capacity; express or implied consent) 2. Truth – defendant has the burden of proof (switch burden in constitutional defamation) 3. Privilege a. Absolute Privilege – based on the person (1) spouses or officers of the three governmental branches engaged in those duties b. Qualified Privilege – based on the context of the speech (1) Letters of recommendation, communication with the police (2) If it is relevant to the subject at hand, reasonable misstatements won’t create liability III. PRIVACY A. Appropriation 1. Defendant uses plaintiff’s name or picture for commercial advantage without permission 2. Newsworthy exception B. Intrusion on Seclusion 1. Invasion by defendant of plaintiff’s solitude, that would be objectionable to an average person 2. Must be in a place where privacy is expected 3. No trespass is required C. False Light 1. Widespread dissemination of a major misrepresentation (doesn’t need to be defamatory) about the plaintiff that would be objectionable to an average person 2. Mistake is not a defense 3. [Defamation allows for economic recovery; false light allows for the intangible (emotional, mental)] D. Public Disclosure of Private Fact 1. Widespread dissemination of confidential information about the plaintiff that would be objectionable to a reasonable person 2. Newsworthy exception 3. Dual life fact pattern – if a fact from another sphere of activity (that is also public) is disclosed, it isn’t actionable. E. DEFENSES 1. Consent 2. Defamation Privileges (only for false light and disclosure) a. Spouses b. Government officers c. Qualified privilege for socially useful speech IV. NEGLIGENCE A. Duty 1. There is a duty to foreseeable victims; plaintiffs must be within the “zone of danger” 2. Rescuers are always foreseeable and owed a duty of care B. Standard of Care 1. The care of a reasonably prudent person acting under similar circumstances a. This is objective once you put in the similar circumstances b. Mental retardation; insanity; stupidity are not defenses c. There is no duty to render assistance UNLESS there is a special relationship (common carrier/passenger; innkeeper/guest; landlord/tenant; jailers/prisoner; schools/pupil) 2. Exceptions (changing the standard of care) a. If the defendant has superior knowledge, then the standard goes up to that level b. Defendant’s physical characteristics are built into the standard
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3. Special Duty Standards a. Children (subjective standard) (1) The care that a child owes is the care of a child of similar age, experience, and intelligence acting under similar circumstances (2) A child under the age of 4 is incapable of negligence and owes no duty (3) Exception – if the child engages in an adult activity (operating something with a motor), then he will be held to the objective standard of a reasonably prudent person under similar circumstances b. Professionals (empirical standard) (1) A professional must give the duty of care of the average member of their profession practicing in a similar community c. Land Occupiers – they have a duty to be reasonably prudent under the circumstance for activities conducted on the land; they owe different duties for the conditions on the land based on who the entrant is (1) To Undiscovered Trespassers (a) No duty for anything (even activities) (2) To Discovered Trespassers (and anticipated trespassers) (a) Duty to protect from (1) known; (2) man made; (3) death (4) traps (hidden) (b) Duty to warn and make safe if it is highly dangerous, artificial, AND not obvious (3) To Licensees – enter with permission, but property isn’t generally open to public (a) Duty to protect from (1) known; (2) traps (hidden) (b) Duty to warn and make safe if it is dangerous AND not obvious (4) To Invitees – enter land that is generally open to the public (a) Duty to protect from (1) reasonably knowable; (2) traps (hidden). (b) Duty to warn and make safe if it is dangerous AND not obvious; Duty to inspect. (5) Footnotes (a) Firefighters and Police are considered Licensees. They assume the risk of their jobs and have other means of recovering for injuries. (b) Child Trespassers (aka Attractive Nuisance Doctrine) – duty to protect, if: (1) an
artificially dangerous condition exists; (2) children are likely to trespass; (3) children because of their youth, age, or immaturity fail to appreciate the danger or realize the risks; AND (4) the utility of maintaining the condition is slight compared to the risks.
(c) When there is a duty to protect, it can be satisfied in two ways (i) Fix or repair the dangerous condition (ii) Give a warning (the condition is no longer concealed. d. Statutory Standard of Care (1) When there is a criminal or regulatory statute that concerns the negligence issue in the tort case, it is negligence per se (no reasonablenss test), if two conditions are met: (a) Plaintiff is a member of the class of persons the statute was designed to protect (b) The injury is in the class of risks that the statute was designed to prevent (2) Exceptions (a) If statutory compliance would be more dangerous than statutory violation, we will not borrow the statute even if the two part test is satisfied. (b) Compliance is impossible under the circumstances e. Duties to Act Affirmatively (1) There is no duty to act affirmatively; there is no duty to rescue a person in peril (2) Exceptions: plaintiff caused peril; pre-existing relationship; once you start to rescue C. Breach 1. Plaintiff identities the wrongful conduct AND explains why it falls short of the applicable standard of care
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2. Res Ipsa Loquitor – the thing speaks for itself a. accident that occurred is of a type that doesn’t normally occur in the absence of negligence b. this type of accident normally occurs because the of the negligence of someone in the defendant’s position (i.e. “I probably got the person right”) c. Procedural Implications – avoid directed verdict; ultimate decision is up to the jury Causation 1. Actual Cause (factual cause) – “ but for test” a. Plaintiff must demonstrate a linkage between the breach that has occurred and the injury that has resulted b. “But for the breach, there would have been no injury” [Defendant would try to show that the injury would occur “even if” he had behaved prudently] c. Multiple defendants (1) Mingled causation (they both did it) – substantial factor test (a) Did each defendant contribute to the damage in a significant and substantial way? If yes, then we are going to hold them liable. If they are both yes, then there is joint and several liability. (2) Unascertainable causation (one of them did it) (a) Shift the burden to the defendants. If one can prove he wasn’t the cause, then he gets out of liability. If neither is innocent, there is joint and several liability. 2. Proximate Cause (legal cause) – fairness of holding the defendant liable a. Liability is fair if the consequences are foreseeable b. This is an after the fact assessment about the fairness and foreseeability c. Is there an unforeseeable intervening cause? Break in the chain of liability. (1) Examples – act of god; criminal acts of third parties; intentional torts of third parties d. There are four settled instances intervening acts that ARE foreseeable (1) Intervening negligent medical treatment (2) Intervening negligent rescue (3) Intervening reaction forces (reactions by others to the accident) (4) Subsequent disease or accident Damage 1. Must prove damages…don’t forget the Eggshell Skull Doctrine (applies to all torts) 2. Once negligence is established, the defendant must pay for all harm that results, even if it is surprisingly great in scope). AFFIRMATIVE DEFENSES TO NEGLIGENCE 1. Comparative Negligence a. Pure comparative negligence – default rule (1) Liability is strictly by the numbers b. Partial comparative negligence – plaintiff can only recover if his fault is less than 50% 2. Common law contributory negligence – no recovery if the plaintiff is contributorily negligent a. Last clear chance – plaintiff can still recover if the defendant was the one with the last clear chance to avoid the accident 3. Assumption of risk – must know the risk AND proceed despite the risk Negligent Infliction of Emotional Distress 1. Plaintiff has to show breach of some duty (a lack of reasonable prudence OR breach of one of the other five special duties) 2. Although there was no physical harm, plaintiff almost had some (near miss; close call). He was in the zone of danger 3. Plaintiff has to show that as a result of the near miss caused by the negligence of the defendant, he has subsequent physical manifestations
BARBRI – TORTS SHORT OUTLINE 4. Bystander Recovery for NIED: distressed plaintiff witnesses a negligent injury to a close family member
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V. STRICT LIABILITY A. Injuries caused by animals 1. Domesticated Animals a. Not strictly liable for dog bites b. Exception: if defendant has knowledge of the dog’s vicious propensities (one bite; vicious breeds) 2. Trespassing Cattle – strict liability for trampling and eating stuff 3. Wild Animals – strict liability B. Ultra-hazardous and abnormally dangerous activities 1. What is ultra-hazardous? a. Activity CANNOT be made safe b. Activity poses a severe risk of harm c. Activity is uncommon in the area where it is being conducted 2. Common Examples a. Explosives b. Highly dangerous chemical OR biological substances c. Anything involving nuclear energy OR radiation C. Products Liability 1. Defendant must be a merchant – in the chain of sale 2. Product must be defective a. Manufacturing defect b. Design defect (includes failure to warn or give instructions) (1) If there is a safer alternative (2) If the alternative is cost effective (3) If the alternative is practical (doesn’t impair the utility of production) (4) EXCEPTION: there is no duty to warn if the product is only dangerous when consumed in excessive quantity for over a long period of time, when the danger is generally know or recognized. 3. Defect existed when it left the defendant’s hand – if it is defective, there is a presumption that it has been unchanged and was defective when it left the defendant’s hands. 4. Plaintiff must show that he was a foreseeable user, making a foreseeable use of the product at the time of injury 5. Most courts have refused to extend strict products liability to cases in which plaintiffs suffer only economic loss when not accompanied by physical harm to the plaintiff. D. DEFENSES TO STRICT LIABILITY 1. Comparative negligence 2. Assumption of risk 3. NO contributory negligence VI. OTHER PRODUCTS LIABILITY CAUSES OF ACTIONS A. Strict liability B. Negligence C. Warranties VII. WARRANTIES A. Express Warranty 1. Various ways it could arise
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a. A statement of fact or promise about the goods b. A description of the goods (i.e. “shatterproof glass”) c. The use of a sample or model 2. No privity requirement 3. Creates strict liability (as long as the representation is not true) Implied Warranty of Merchantability: goods are fit for ordinary purpose 1. A warranty that goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind 2. Must fit within the purpose for which such goods are used. Implied Warranty of Fitness for Particular Purpose: goods are fit for particular foreseeable purpose 1. This arises when a. The seller knows that the buyer wants the goods for a particular purpose AND b. The buyer relies on the seller’s judgment to recommend a suitable product Defenses 1. Disclaimers – can disclaim merchantability, but it must be conspicuous 2. Limitation of Consequential Damages – sellers can try to limit the available remedies; but limitation of damages clauses for personal injury are automatically unconscionable and thus unenforceable What is the difference from strict liability? 1. Pure economic harm – it will be easier to recover for warranty than strict liability 2. Statute of limitations – usually shorter on strict liability claims
VIII. A. B. C. D.
INTERFERENCE WITH BUSINESS RELATIONS Existence of a valid contract between plaintiff and 3rd party (or business expectancy) Defendant knows of the contract (or expectancy) Intentional interference inducing breach Damages
IX. NUISANCE A. An unreasonable degree of interference with the plaintiff’s use and enjoyment of his land B. Defendant can be acting intentionally, carelessly, or even with the utmost reasonable care C. In most cases, the courts will balance the issues (between each party’s use of their own land) D. Public Nuisance – unreasonable interference with health, safety, or property rights of the community 1. A private citizen may recover for his own damages from a public nuisance, but only if he sustained damage that is different in kind (not just degree) from the public generally 2. Remedy – injunction is generally the remedy available for public nuisance E. Private Nuisance – substantial interference with another private individual’s use or enjoyment of property that he actually possesses; defendant’s conduct is negligent, abnormally dangerous, or intentional 1. Remedies: (1) injunctive relief; (2) money damages; (3) self help (must give notice and refusal by defendant) F. Defenses 1. Contributory negligence 2. Assumption of risk a. Coming to the nuisance – this is just a factor to be considered X. MISREPRESENTATION A. Intentional Misrepresentation
BARBRI – TORTS SHORT OUTLINE 1. 2. 3. 4. 5. 6. 7.
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Misrepresentation of material facts Scienter (defendant knew the statement was false) Intent to induce plaintiff to act or forbear Justifiable reliance Causation Damages – actual pecuniary loss Note: non-disclosure is not actionable unless there is a fiduciary relationship (majority/minority shareholder; executor/beneficiary; bank/depositors; close family members) B. Negligent Misrepresentation 1. Misrepresentation by plaintiff in a business or professional capacity 2. Breach of duty owed to (foreseeable) plaintiff 3. Justifiable reliance 4. Causation 5. Damages XI. WRONGFUL INSTITUTION OF LEGAL PROCEEDINGS A. Malicious Prosecution 1. Criminal proceedings against the plaintiff 2. Termination of criminal proceeding in favor of the plaintiff 3. Absence of probable cause (when the defendant instituted the criminal proceeding) 4. Improper purpose of the defendant 5. Damages 6. Exception: prosecutors are immune from liability B. Abuse of Process 1. Wrongful use of process for ulterior purpose 2. Definite act or threat against the plaintiff to accomplish ulterior motive XII. MISCELLANEOUS TOPICS A. Vicarious Liability 1. Imposition of tort liability of one person for the acts of another. This is due to a relationship between the passive party and the tortfeasor. 2. Types of relationships a. Employer-employee (respondiat superior) (1) Responsible for the torts of an employee if the tort is committed within the scope of employment (2) Detour v. Frolic (a) Detour – does not break the imputation of liability (b) Frolic – breaks it. (c) difference- look at the facts b. Hiring Party-Independent Contractor (1) NO vicarious liability (2) EXCEPTION – (a) a landowner is vicariously liable if an independent contractor hurts an invitee on the land (b) the independent contractor is engaged in non-delegable duty (c) the independent contractor is involved in ultra-hazardous activity c. Automobile Owner-Automobile Driver (1) The owner is not liable for accidents that happens when the driver borrows the car (2) EXCEPTION – if the owner lends the car so the driver can do an errand for him, then he is the owner’s agent and there is vicarious liability
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d. Parents-Children (1) NO vicariously liability 3. NOTE for all types of vicarious liability – never consider vicarious liability first. It is a fall back theory. First, you must determine if you can get the defendant on a direct tort theory (i.e. parent keeps a loaded gun; kid goes in and takes it; someone gets shot; negligence…employer negligently hires trumps) 4. Permissive use – imposes liability for damage caused by anyone driving with the car owner’s consent B. Loss of Consortium 1. Whenever the victim of a tort is married, the uninjured spouse of the victim gets a second and separate independent cause of action in his/her own right. 2. Allows for recovery for three categories of recovery a. Loss of services – laundry, mow the lawn, cook, etc. b. Loss of society – companionship; person to talk to c. Loss of sex C. Contribution 1. Comparative Contribution a. Jury assigns the numbers. If one defendant pays it, he is entitled to contribution for the amount he is not responsible for from the other defendants. b. Multiple defendants- Plaintiff collected all the money from D1. D1 wants D2 and D3 to chip in. D1 is entitled to comparative contribution. c. EXCEPTIONS: Full Reimbursement (Indemnity) (1) If there is a contractual agreement (2) Passive Party who has been held vicariously liable is entitled to full indemnification (3) Non-manufacturer can get indemnification in a product case. XIII. PRIVILEGE OF ARREST A. Felony (officer) – reasonably believe that felony occurred AND that the person committed it B. Felony (citizen) – felony in fact must have been committed AND citizen must reasonably believe that the person committed it C. Misdemeanor – must be a breach of the peace AND committed in arresting party’s presence