Torts Lecture[2]

First identify elements that a plaintiff needs to get to the jury. Master the elements for each cause of action. Second, be aware of the affirmative defenses INTENTIONAL TORTS Overview: In any intentional tort problem, the extreme or hypersensitivity of the plaintiff should be ignored. Always assume the plaintiff is a normal, ordinary person when analyzing the plaintiff’s case. Also, there are no incapacity defenses in the law on intentional torts. Even children can commit intentional torts. Same for drunk people and for insane people. BATTERY  Intent is not very heavily tested on the bar. Intent simply means that the defendant desires to bring about the forbidden outcome, or acts with knowledge that the outcome is virtually certain that the outcome will come to pass.  The defendant must commit a harmful or offensive contact that is o For offensive, substitute the word un-permitted, but remember that hypersensitivity is not taken into account. It’s offensive if it is not normally permitted by a reasonable person. o Tap on shoulder to get attention is permitted by ordinary people. Stroking a woman’s hair is not permitted.  With the plaintiff’s person o This includes anything connected to the plaintiff. Purse, briefcase, even dog if on a leash. ASSAULT  Intent  The defendant places the plaintiff in apprehension o Apprehension is not fear. It is a synonym for knowledge, plaintiff must know or appreciate that he may be touched. o The unloaded gun. If plaintiff does not know the gun is unloaded then he is in apprehension. If the plaintiff knows the gun is not loaded, then there is no apprehension.  Of an immediate battery o Here we are concerned with the timing of the threat. o Words alone lack the necessary immediacy. A naked verbal threat to commit a battery, without accompanying action, is not enough. o You need overt conduct, either alone, or accompanying the threat. o If there is an overt act, the words can negate the assault.  Coming up to you I say, “if you were not wearing your ID, I’d punch you in the face.”  I see you in the morning and say, “just you wait, come five o’clock I am going to kick your ass.” FALSE IMPRISONMENT  Intent 1   Defendant commits an act of restraint and o Threats can be an act of restraint. o The threat must be sufficient to act on the mind of a reasonable person. o An omission can be an act of restraint. If you have a duty to assists someone in moving about, failure to do so can be an act of restraint. o An act of restraint only counts if either the plaintiff knows about it, or is harmed by it (suffer a physical detriment). Confinement in a bounded area o The plaintiff must be locked in to a place with specified boundaries. Keeping someone out of a place does not constitute confinement in an area. o On the test a woman could not enter an abortion clinic, the path is blocked by protestors. Not false imprisonment on the test. o An area is not considered bounded if there is a reasonable means of escape that the plaintiff can reasonably discover. IIED    Outrageous Conduct o This is conduct that exceeds all bounds of decency tolerated in a civilized society. o Mere insults are no considered outrageous. o Factors:  Contiguous or repetitive conduct is more likely to be outrageous.  The defendant is a common carrier (transportation company) or an innkeeper (hotel). The proprietors of these business are charged with an obligation to treat their patrons with a high degree of courtesy. Easier to nail them for IIED.  Plaintiff is a member of a fragile class of persons. The outrageousness here is that the defendant targets a person with external attributes that may make them emotional. Defendant must know that the plaintiff is in a special class. And it does not matter if the plaintiff is especially emotional, it is only a factor to see if the defendant’s conduct is outrageous.  Young Children  The Elderly  Pregnant Women  Members of minority religious and racial groups  Plaintiff is hypersensitive and the defendant knows about it and exploits it. With the purpose to really upset the plaintiff Causing severe emotional distress o Momentary or passing distress is not enough. o It is not necessary that the plaintiff see a psychiatrist, or lose work, or have physical symptoms. TRESPASS TO LAND  Intent – The only intent required is that the defendant got to the location on purpose. It does not matter if he knows of boundary lines or whatever. o If defendant sleepwalks somewhere, that is not intentional. 2   o If you are walking down the street and have a heart attack and fall on the lawn, no trespass. o If you are riding a horse and the horse gallops on to property against your wishes, no trespass. Physical invasion o Can be actually entering property o Can be propelling tangible object on to plaintiff’s property, intangible forces would not be a trespass. o Does not matter what the intentions are, can be watering neighbor’s plants because they look like they are dying. That is a trespass. To land o Land is not limited to the surface of real estate, it includes air above and soil below out to a reasonable distance. TRESPASS TO CHATTELS AND CONVERSION – These are mutually exclusive.  Intentional Invasion o This can be damage o This can be depriving the owner of possession, stealing it.  Of someone else’s personal property o This is everything you own other than land and buildings. o Mistaken belief that you own the property is no defense  The difference between the two actions is the degree of harm and the remedy o Modest or slight is trespass to chattels and you recover the value of the damages o Extensive harm is conversion and you recover the full value of the item involved AFFIRMATIVE DEFENSES CONSENT  Does the plaintiff have legal capacity?  People without capacity can not give valid consent. Need a sane and sober adult.  Two main kind of consent o Express – Words (spoken or written) giving the defendant permission to behave in a certain way. Express consent is void if it is given as a result of duress or fraud. If person gives consent to sex but other party did not tell of STD then the consent is fraudulently obtained. o Implied – This is custom or usage. If a plaintiff goes to a place or engages in an activity where certain invasions are customary, then the plaintiff has consented. Can also be defendant’s reasonable interpretation of plaintiff’s objective conduct. The plaintiff’s subjective thoughts are not relevant.  This is not an all or nothing doctrine. If the defendant exceeds the scope of consent they are liable for a tort. SELF-DEFNESE, DEFENSE OF OTHERS, DEFENSE OF PROPERTY  These can be called the protective privileges. These can be invoked to avoid tort liability if two conditions are met: 3    1) Timing Condition – Defendant must show that the conduct to which he is responding is in progress or imminent. You have to act in real time. No revenge. 2) Accuracy Condition – Defendant must have a reasonable belief that his interests are being threatened. A reasonable mistake will not deprive you of a protective privilege. You are only entitled to use the amount of force necessary to respond to the threat. If you use excessive force, you will be liable for a tort. Deadly force is never acceptable to protect property alone. Can not use deadly traps to protect property either. DEFENSE OF NECESSITY (PUBLIC OR PRIVATE)  These relate only to trespass to land, chattel, and conversion.  Public necessity o Defendant invades plaintiff’s property in an emergency to protect the community as a whole, or a significant group of people. That is an absolute defense. There is no legal liability.  Private necessity o Defendant invades plaintiff’s property in an emergency to protect a personal interest. These are self-interested defendants. This is not an absolute defense. Only a limited defense.  Must pay for actual harm done to the plaintiff’s property  Not liable for nominal or punitive damages  As long as the emergency continues, the defendant can remain on the plaintiff’s land. Plaintiff has no privilege to chase defendant away. If guy is hiding from bull on someone else’s property and then that person forces him off the land and he gets hurt. The landowner is liable. DEFAMATION The common law tort has three elements:  Defamatory statement specifically identifying the plaintiff o Statement can be either oral or written, informal or formal. o It is defamatory if it tends to adversely affect the plaintiff’s reputation. o Mere name calling is not defamatory. You need allegation of fact that reflects negatively on a trait of character. o “In my opinion, you would be very foolhardy to allow Mike to handle your escrow account.” If the listener would assume that the statement is based on fact then you can treat it as defamatory. If I said I used Mike as an attorney last year then more likely to be based on fact. If I just point to a stranger and say I don’t know him but he is probably a terrorist, then that is not defamation. o Remember, the plaintiff must be alive.  Defendant publishes the statement o Must share the defamatory statement with at least one person other than the plaintiff. o The publication need not be intentional.  Damages, maybe o Libel is any defamation that is permanently memorialized in a fixed format. Libel plaintiffs do not need to prove damages. 4  o Slander is oral or spoken defamation. Not all slander is treated the same for the purposes of the damage element. For four kinds of slander there is no need to prove damages (slander per se):  Statement concerning the plaintiff’s business or profession  Statement that the plaintiff has committed a crime of moral turpitude  Statement imputing un-chastity to a woman. This is that a single woman is having sex of any kind.  Statement that the plaintiff suffers from a loathsome disease. This is a disease that when you have it, other people loathe you. Leprosy and venereal diseases. o If you must show damages, you must show economic loss. Not enough to show social consequences. Defenses o Consent o Truth. If the defendant can prove that it is true then not liable. This is an affirmative defense. o Privilege – There are two different privilege ideas.  Absolute privilege is based on the status of the defendant. Certain defendants are immune. Spouses are immune from defamation, if a husband says a defamatory statement to his wife then there is no liability. The marital unit is one unit and there is really no publication. Officers of the three branches of government engaged in their official duties are also immune from defamation. The most important aspect of this is the judicial branch. It applies to judges and prosecutors.  Qualified privilege is based on the context or circumstances of the speech. This arises in circumstances where we want to encourage candor. Like letters of recommendations, job references, etc. If you limit yourself to matters relevant to the subject at hand, you are not liable for a reasonable and innocent misstatement of fact that is defamatory. FIRST AMENDMENT DEFAMATION  If the matter in question is something of legitimate public concern then the plaintiff can not bring forth common law defamation, can only bring a cause of action for First Amendment Defamation.  There are two extra elements to plaintiff’s case:  1) Plaintiff must show falsity of the challenged statement. o Burden shifts from common law defamation  2) Plaintiff must show fault o If the plaintiff is a public figure then plaintiff must show that the defendant made the false statement knowing that it was false or with reckless disregard for the trust or falsity. o If the plaintiff is a private figure, then the plaintiff must show that the defendant was at least negligent with regard to the truth. PRIVACY TORTS 5 APPROPRIATION (RIGHT OF PUBLICITY)  Defendant uses plaintiff’s name or picture for commercial advantage without permission.  There is a newsworthiness exception. If sports illustrated puts Tiger Woods’ picture on the cover to sell more, that is not a tort. INTRUSION  Invasion of plaintiff’s solitude in a way objectionable to an average person.  This includes covert wire tapping, or video surveillance.  Plaintiff must be in a place where there is an expectation of privacy  This tort does not require a trespass FALSE LIGHT  Widespread dissemination about a major misrepresentation of the plaintiff that would be objectionable to an average person. o The publication requirement is different here than for defamation. Here you have to tell lots of people.  The misrepresentation can be, but need not be defamatory.  If a catholic is called a jew, that is not defamation but can be false light. It is objectionable to have your faith mischaracterized.  An inadvertent misunderstanding that is then repeated by the defendant can constitute false light. Might really think he is Jewish and think it is great. PUBLIC DISCLOSURE  Widespread dissemination of confidential information about the plaintiff that would be objectionable to a reasonable person.  Examples: Your tax return gets circulated in your neighborhood. Registrar posts your transcript. Medical information is posted.  There is a newsworthiness exception. Publishing Dick Cheany’s medical records is ok.  In a dual life fact pattern where the plaintiff is operating in two different areas. The plaintiff tires to keep them separately, but they are both reasonably public. If someone carries info from one sphere to another that is not actionable because it is not private info. Example if a person is active in the gay community, but does not tell his employer. DEFENSES ON PRIVACY TORTS  Consent – For all of them  Privileges – These are defenses for false light and disclosure o Spouses o Government officers o Qualified privileges NEGLIGENCE 1. Elements A. Duty B. Breach C. Causation 6 D. Damage 2. Duty A. To whom do we all owe a duty of care when we act in the world? i. You owe a duty to foreseeable victims. Unforeseeable victims always lose negligence claims on the bar exam. ii. Short way to look at it is, people nearby are foreseeable plaintiffs. iii. Exception: A rescuer is always owed a duty of care, even if the begin very far away. The duty element is always satisfied with respect to a rescuer. B. How much care do we need to give? i. Generally must give the care of a reasonably prudent person acting under similar circumstances. a. Driving 50 on the freeway is normally not negligent if the road is open, but if there is a blizzard then could be negligent. b. The standard is objective. It is the same for everyone. The standard does not make any allowances for personal shortcomings. Stupid people have to do as good as a reasonably prudent person. What about for a mentally retarded person? Same standard. Even insane person has the same standard. There are no allowances made for personal attributes, except: i. If the defendant has superior knowledge, then the standard becomes, a reasonable prudent person with the superior knowledge. Can be body of knowledge, or just a piece of knowledge. If you are a Nascar driver then you have to be a better driver on the road. ii. Defendant’s physical characteristics are built into the standard. If defendant is blind, the standard is, the reasonably prudent person who is blind. ii. Six Special Standards of Care a. Children – Anyone under 18 i. Children under the age of 4 are not capable of negligence and no liability. ii. The care that a child owes is the care of a child of similar age, experience, education, and intelligence acting under similar circumstances. It is difficult to hold children liable for negligence. iii. If a child is engaged in an adult activity do not use the special child standard. Use the adult standard. Adult activity is generally operating a vehicle with a motor. b. Professionals – People with special skill and training who often provide services i. A professional must give the care of the average member of that profession practicing in a similar type of community ii. Professionals must conform to the standard of others in the field, the custom of the profession sets the standard of care iii. Almost always need to call an expert witness when suing a professional iv. c. Owner/Occupier of land – This includes land and buildings 7 i. First look to see how the entrant got hurt. All causes of injury will be divided into one of two mutually exclusive possibilities A. Hurt by activities being conducted on the land by the occupier or his servants. B. Hurt by encountering a dangerous condition on the land. ii. Second look to see what kind of entrant we have A. Undiscovered trespassers – No duty of care at all in either case. They always lose a negligence claim. B. Discovered/Anticipated trespasser – 1. With respect to activities the owner owes the standard duty of care. 2. With respect to dangerous conditions the owner owes a duty to protect only when the condition meets a four part test: a. A duty only arises if the condition is artificial in nature (created or built by human beings) b. The condition must also be highly dangerous (capacity to kill or maim) c. The condition must be one that the owner/occupier knew about in advance d. The condition must be one that is concealed from the trespasser C. Licensee – These people enter with permission but the property is not generally open to the public (social guests) 1. With respect to activities the land owner owes the licensee the duty of a reasonably prudent person acting under similar conditions (ordinary standard). 2. With respect to conditions a duty arises on if the condition is hidden from the licensee and the condition is known in advance by the owner/occupier. D. Invitees – People who enter land that is open to the public generally 1. With respect to activities the owner owes the standard duty of care. 2. With respect to conditions a duty is owed when the condition is concealed from the invitee and the owner/occupier knew of the condition or could have discovered from a reasonable inspection. iii. Summary A. Undiscovered trespasser never wins. B. For everyone else, with respect to activities, a standard duty is owed. C. For conditions look to the kind of entrant. iv. Fire fighter or Police Officer 8 A. These are licensees B. They never recover for hazards that are part of the job v. Child Trespassers – They get a higher standard of care A. They are always entitled to the care of a reasonable prudent person acting under similar circumstances vi. How to satisfy a duty owed? A. Owner can fix the problem B. Owner can give an adequate warning (this changes a concealed condition into an open and obvious condition) d. Statutory Standards of Care i. Negligence per se if A. Plaintiff must demonstrate that he is a member of the class of persons that the statute was designed to protect; and B. Plaintiff must demonstrate that the accident is in the class of risks that the statute was designed to prevent. ii. If statutory compliance will be more dangerous than statutory violation, then we do not borrow the statute for purposes of negligence per se iii. If statutory compliance is impossible under the circumstances then we do not borrow the statute. Example: person is driving and has heart attack, he runs red light and hits someone. Not negligence per se. e. Duties to act affirmatively i. There are no duties to act affirmatively. Duties only attach when you voluntarily undertake an activity. ii. Exceptions: If the defendant caused the peril, then there is a duty to rescue. If there is a pre-existing relationship there is also a duty to rescue (family member, common carrier/innkeeper and patron, land owner and invitee). iii. Under the exceptions there is a duty to rescue in a reasonable fashion under the circumstances. iv. If a person has no duty to rescue and then chooses to rescue on his own, then he must do so in a reasonable fashion. Any harm caused by his unreasonableness is his liability. f. Negligent Infliction of Emotional Distress i. In order for a plaintiff to recover where there has been no physical trauma, only psychological disturbance the plaintiff must show three things: A. Plaintiff must show breach of some other duty (there must be negligence) B. Plaintiff must show that they were in a zone of physical danger. It was a near miss or a close call from them getting actually hurt. C. Plaintiff must show that as a result of the near miss episode caused by the negligence of the defendant, he has 9 subsequent physical manifestations. These are symptoms that we can see or measure. ii. Bystander distress claim. A. Plaintiff must be physically present and witness negligent injury to a close family member. 3. Breach – Identify the conduct and explain why it falls short of the applicable standard A. The more specific the duty standard, the less there is to explain when talking about breach. B. Res Ipsa Loquitor – This is a doctrine used by plaintiffs that can not tell us with precision what the defendant did wrong. It gets you to the jury, but you may or may not win the case. i. The plaintiff must demonstrate that the accident that occurred is of a type that doesn’t normally occur in the absence of negligence. ii. The plaintiff must demonstrate that this type of accident normally happens because of the negligence of someone in the defendant’s position 4. Causation – A. Factual causation i. Plaintiff must demonstrate a connection or link between the breach and the injury. ii. The standard is the “but for” test. But for the breach, I would be healthy today. iii. The “but for” test does not work in some situations involving multiple defendants. a. Multiple defendants and mingled causation – Two separate people leave a campfire burning and the wind blows them both into Pete’s house and it burns. Each person can say they are not a “but for” cause. In these cases use the substantial factor test. 1. Did the defendant contribute to the injury in a substantial way? b. Multiple defendants and unascertainable cause – Three guys go hunting and two of them negligently shoot at the same time in the plaintiff’s direction. One bullet hits the plaintiff. In these cases we shift the burden of proof and it is up to the defendants to explain their way out of the case. Otherwise joint and several liability. B. Legal or Proximate causation (fairness) i. People are liable for the foreseeable consequences of their actions ii. In a direct cause fact pattern, the defendant commits the breach and then the plaintiff suffers injury almost immediately. It is almost always fair to hold the defendant liable. iii. In an indirect cause question, the defendant commits the breach, and then other stuff happens and only then does the plaintiff suffer the full extent of the harm. There are four well settle fact patterns where the defendant is liable: a. Intervening negligent medical treatment. b. Intervening negligent rescue c. Intervening protection or reaction forces  There is an accident that knocks down plaintiff. The bystanders stampede off and one kicks the plaintiff in the head by accident. 10 d. Subsequent disease or accident  Accident places plaintiff in leg cast. The next day they fall because they are not used to walking in a cast. When they fall they break their arm. iv. If something does not fall in the four settled areas then first ask yourself, “what is the breach, what conduct am I worried about?” Then skip to the end and ask yourself, “is that harm the harm that I was worried about?” If so then it is a match and we have proximate cause. 5. Damages 1. Egg Shell Skull – Defendant pays for all harm suffered by plaintiff even if that harm is surprisingly great. You take your plaintiff as you find him. This rule applies to every tort, not just negligence. AFFIRMATIVE DEFENSES TO NEGLIGENCE 1. Comparative Negligence – Defendant must demonstrate that the plaintiff failed to take care of their own safety. A child must be held to the standard of a child, and an adult to the standard of an adult. The jury assigns a percentage number of fault to each party. STRICT LIABILITY INJURIES CAUSED BY ANIMALS 1. Domesticated animals (Dog) – General rule is that you are not strictly liable for a dog bite. The exception is that you are strictly liable for your dog’s biting of another person if you have knowledge of the dog’s vicious propensities. If the dog has previously bitten someone then you are on notice. You can still be liable on a negligence theory for the first bite. 2. Trespassing cattle – Strict liability for your trespassing cattle 3. Wild Animals – If you keep wild animals you are strictly liable. Your safety precautions are legally irrelevant. ULTRAHAZARDOUS ACTIVITIES 1. Three attributes a. The activity can not be made safe b. The activity poses a severe risk of harm c. The activity is uncommon in the area where it is being conducted 2. Most common are: a. Explosives b. Highly dangerous chemical or biological substances c. Anything involving nuclear energy or radiation 3. Strict liability subject to the rules of proximate cause PRODUCTS 1. Defendant must be a merchant – This is someone who routinely deals in goods of the type. a. Casual sellers are not merchants b. Service providers who make available tangible objects are not merchants of those items. A restaurant is not strictly liable for problems with the chairs. 11 c. Commercial lessors are considered to be merchants. If you rent a car for Hertz, they are strictly liable for problems with the cars. d. Defendant must be a merchant, but does not have to the party with whom the plaintiff dealt with directly. There is no privity requirement. 2. Product is defective a. Can have a manufacturing defect. This is when the product differs from all the others that came off the same assembly line in a way that makes it more dangerous than consumers would expect. b. Design defect – This is when there is another way to physically construct the product. There is a hypothetical alternative design. That alternative design must be: i. safer than the version marketed; and ii. it must be cost effective (only a bit more expensive at most); and iii. it must be practical (does not undermine or impair the utility of the product in question).  If the product has a risk the consumers are not aware of then a warning may be necessary. Selling the product without the warning is the defective product 3. The plaintiff has to show that the defect existed at the time the product left the defendant’s hands. Generally this is not a problem because there is a presumption that if the problem moved through ordinary channels of distribution. 4. The plaintiff must demonstrate that he is a foreseeable user making a foreseeable use of the product. a. Foreseeable uses are broader than intended uses. AFFIRMATIVE DEFENSES FOR STRICT LIABILITY 1. The affirmative defense is the same as for negligence, that is comparative fault. NUISANCE – This involves an unreasonable degree of interference with plaintiff’s use or enjoyment of land. 1. Can be intentional or negligent or completely innocent. 2. In most cases the courts balance the interests. The defendant should be free to use his land as he wishes but the plaintiff should be able to enjoy his land. VICARIOUS LIABILITY 1. This is where someone commits a tort. The plaintiff sues a passive 3rd party. 2. There must be a relationship to impose vicarious liability. a. Employer and employee – If the tort is committed in the scope of employment then the employer is responsible for torts committed by the employee. This is called respondiat superior. As a general rule, however, intentional torts are outside the scope of employment. If the intentional tort is to serve the employer’s purposes then it will be pulled back into respondiat superior. b. Hiring party and independent contractor – There is no vicarious liability for the torts of independent contractors. But, a landowner is vicariously liable if an independent contractor hurts an invitee on the land. c. Automobile owner and driver – Generally the owner is not vicariously liable for the torts of a driver. Exception is if the owner lends the car so an error can be done for him. 12 d. Parents and children – There is no vicarious liability with no exceptions. Watch out to see if the parent is negligent themselves. LOSS OF CONSORTIUM CLAIMS 1. Whenever the victim of a tort is married, the uninjured spouse of the victim gets a separate cause of action in his own right. They can recover three categories of damage: a. Loss of services – Now need to pay someone to do the dishes. b. Loss of society or companionship – lonely and may need to see psychiatrist c. Loss of sex 13