1 Day 2 & 3 TORTS Torts on the Bar Exam • Goal: Identify the elements of the tort action that the Plaintiff is trying to prove. • Question is if we can get to the jury box-by proving the elements. • Learning Lists-lists of elements • Governing Law-National Majority Rule. INTENTIONAL TORTS (7) Overview: 3 preliminary topics • (1) Extreme or hypersensitivity of a plaintiff-always disregarded or ignored in determining whether the plaintiff has satisfied why the elements. o Always assume the person is of reasonable, normal, or average sensibility. • There are NO Incapacity Defenses*** Everyone is legally capable of being held liable. o Example: if someone is drunk, insane, or a child and they commit a battery, they are still liable. • INTENT: not a heavily tested element. o Intent is when the person has the desire or purpose to bring about the forbidden result. Battery • 2 tested elements: o Harmful or Offensive Contact. o Contact must be with the plaintiff’s person. • Offensive= Unpermitted (by a person of normal sensitivity) o Most of the questions deal with the offensive element. o Hypersensitivity is not taken into account. o Is it Permitted by normal people? • Plaintiff’s Person o Plaintiff’s person includes ANYTHING CONNECTED to the plaintiff. o Example: plaintiff holding a briefcase. o Example: Plaintiff walking a dog, and someone kicks the dog. • Bodily contact does not have to be with the defendant’s body. He can use a bat or a bullet. • Bodily contact does not have to be immediate. Can poison= battery. 2 Assault • 2 tested elements o Plaintiff is placed in Apprehension o Apprehension is of an immediate battery. • Apprehension o Apprehension ≠ Fear. o Apprehension = knowledge or awareness of threatened activity. o David and Goliath Question: plaintiff will be described as big and strong and capable of taking care of any problem; then along comes the defendant, who is a little guy. And the teeny little guy picks up a stick and waves it and says, “Im gonna hit you”. Defendant is LIABLE because the Plaintiff placed him in apprehension; Because Plaintiff knows that he will be touched. o Unloaded Gun: Defendant acts in a threatened fashion but can’t actually commit the battery. Put yourself in Plaintiff’s shoes. If plaintiff doesn’t know the gun is not loaded; then plaintiff is in apprehension. If Plaintiff knows the gun is not loaded, he is not in apprehension. • Apprehension is of an IMMEDIATE Battery. o What constitutes immediacy? o Words alone lack immediacy. A naked verbal threat is not an assault. **You need Actual Physical Conduct of a threatening kind. • Display of a weapon (gun, knife, fist) o Even if you have threatening conduct, if there are accompanying words, they may negate the immediacy. Threatening conduct & conditional words: • “if you weren’t wearing your Barbri ID, I’d hit you with the this stick.” But you are wearing it, so you are safe, so no immediacy. Words cast in future • “I am going to come by your house later and beat you up”. Law takes the view that a lot can intervene in a few hours. This is not assault. False Imprisonment • 2 elements o Act of restraint o Confinement in a Bounded Area • Act of Restraint 3 o Threats are sufficient** “I have your son and if you leave this room, ill kill him”. This is an act of restraint.” Remember: reasonable person standard. Hypersensitivity not taken into account. o An omission can be an act of restraint, provided there is a pre-existing duty to help the plaintiff move about. “Disabled passenger on an airplane, flight crew leaves without getting him his wheelchair. That is an act of false imprisonment. o Plaintiff Must Know of act of confinement at the time OR suffer a harm; otherwise, it does not count. If you never knew you where restrained, it is not false imprisonment (unless you were harmed by the restraint). • Confinement on a Bounded Area. o Keeping someone OUT of a place Is NOT confinement and thus not false imprisonment. You must keep someone IN. A bouncer not letting you in a club is not false imprisonment. There are other laws that pertain to keeping someone out of a place; and on the bar exam, is a test of reading comprehension. o An area is not a bounded area IF there is a Reasonable means of escape. Reasonable means of escape: • Example: if you are locked in a basement and the only way out is crawling through some small window through broken glass, that is not Reasonable. Intentional Infliction of Emotional Distress • Intent Requirement: o Purpose or desire o Recklessness This is the only tort where this is true. • 2 elements o Outrageous conduct o Severe Emotional Distress • Outrageous conduct o Outrageous= exceeds ALL BOUNDS OF DECENCY tolerated in a civilized society. o 1 kind of behavior that is never outrageous= Mere insults. Mere insults are insults without anything else. Calling someone names or making fun of them is not Outrageous. 4 o Look for + (plus) factors: hallmarks of outrageousness: 3 examples Conduct is continuous or repetitive-occurs over and over again. • Example: Everynight for a month, someone calls you at 3:00 in the morning, claiming to be your creditor-that is outrageous Defendant is a common carrier or innkeeper. • Common carrier= transportation company open generally to the public. • Innkeeper= hotel, motel • Courts are more likely to hold them liable. • Example: you order room service, and there is a rat in your sandwich. This is outrageous, because a hotel is not supposed to do this. Plaintiff is a member of a fragile class of persons • If plaintiff is a member of a fragile class of persons, then we would find it outrageous for a defendant to pick on them. • Outrageous of the Defendant. • Fragile Classes o Young Children o Elderly o Pregnant Women You have to know that the women is pregnant. o Does placing a rubber rattlesnake on a co-worker’s (who is scared of snakes) chair exceed all bounds of decency? No. The plus factors are not there. Plaintiff is simply hypersensitive. If you knew of the phobia, and you went ahead anyway, it is outrageous. It is outrageous if you exploit a KNOWN sensitivity. • Severe Emotional Distress o Must be Severe! Does not require any type of symptoms. o Severe= interfere with the daily activities of life. o Mildly annoyed is not sever emotional distress. Trespass to Land • Intent Requirement: o The only intent required is a demonstration that the defendant got to the challenged location on purpose. o Defendant need NOT be aware that he is violating property rights. o Examples of No Intent Sleepwalking (not acting consciously) 5 Have a seizure, and fall onto someone’s front lawn Riding a horse and horse goes crazy and goes onto someone’s land • 2 Elements o Physical Invasion o Invasion Of Land • Physical Invasion o 2 ways: defendant can enter the property himself. (walk, drive, boat) propelling/projecting tangible objects onto the land. o Tangible Objects Example: throwing stones onto neighbor’s property, even though you are standing on your own land. o Non-physical invasion of land-not a trespass Odor, Noise, lights= not a trespass. (nuisance) Must be physical • Of Land o Includes the air above, and the soil below-to a reasonable distance. o Throwing a baseball over your property, even though it doesn’t actually touch your land-is a trespass. Trespass to Chattels • Legal alternative to conversion • Intentional interference with personal property. o Personal property (aka chatells)= everything you own except your real property. • 2 ways to interfere with personal property o damaging o stealing/taking • trespass to chattels and conversion are the civil remedies to vandalism, theft. • Difference between trespass to chattels and conversion= magnitude of the harm o Small harm, modest harm= trespass to chattels o Significant harm= conversion Special Remedy for conversion= get full market value of the item (not simply the cost of repair) • 2 Elements: o Conversions • forced sale! 6 • Intentional interference with personal property. • 2 ways to interfere with personal property o damaging o stealing/taking • Special Remedy= get full market value of the item (not simply the cost of repair) • Mistaken belief that it is your own chattel is not a defense. If you take a sledge hammer to what you believe is your own vehicle, than it is conversion. DEFENSES TO INTENTIONAL TORTS 1. consent 2. self-defense, defense of others, defense of property 3. necessity 4. discipline Consent • Did the plaintiff have legal capacity? • Only people with legal capacity can give a valid consent. o Drunks can commit intentional torts, but cannot consent to an intentional tort committed on them. o Children cannot consent to Adult activities. • Express Consent: words, written or spoken, permitting the defendant to behave in the challenged fashion. o Express consent procured by FRAUD or DURESS is NOT a valid defense. Example: consenting to sex, but person had a STD, and you can recover for battery because consent is procured by fraud. • Implied Consent: o CUSTOM, USAGE Plaintiff goes to a place or participates in an activity where certain invasions are typical or customary. Example: sports-consenting to everything customary in the game. Scope of consent-whatever is customary. If you exceed the scope, then you can be liable for the tort you commit. o DEFENDANT’S REASONABLE INTERPRETATION OF PLAINTIFF’S OBJECT OF CONDUCT. Objective standard. Subjective thoughts of the plaintiff or the defendant are not relevant. Example: woman invites gentleman over. Gentleman brings flowers, she excuses herself to go put the flowers in a vase. He sees lights 7 dim, candles, and hears light music. She returns, invites him into the kitchen, they eat, she invites him to the living room. They are sitting on the sofa, there is a lull in the conversation, she closes her eyes, at which point the gentleman kisses him. She claims battery. Defendant gentleman would claim that there is implied consent, a reasonable interpretation of her object of conduct. • Scope of Consent o If defendant exceeds the scope of the consent, he will be liable for the tort as if there was no consent at all. Self-Defense, Defense of Others, Defense of Property • Protective privileges • Must show: o Proper Timing o Reasonable belief that the threat is genuine. • Proper Timing o Defendant is acting in response to a threat that is imminent or in progress. o If the threat is over and done with, then the timing is no good, and there is no defense. o NO REVENGE-if it looks like revenge, deny the defense. • Reasonable Belief that the threat is genuine o an honest and rational mistake does not cancel the privilege. • Amount of Force o Allowed to use ONLY AS MUCH FORCE THAT IS NECESSARY. o You may use PROPORTIONAL Force. o If you are dealing with a life threatening situation-you can use deadly force. o FOR PROPERTY-you can NEVER use deadly force. You may not set deadly traps (i.e. spring guns). Necessity • Only applies to the 3 property torts-Trespass to Land, Trespass to Chattels, Conversion. • 2 Kinds of Necessity: o Public Necessity o Private Necessity • Public Necessity o If a defendant invades plaintiff’s property, in an emergency, to protect the community as a whole, or a significant group of people. 8 o Defendant is absolutely immune. Defendant does not owe anything, even if he causes property damage in the process o Example: killing a rabid dog-so you acted with public necessity. • Private Necessity o Invade a plaintiff’s property in an emergency to protect HIS OWN interest. o Not an absolute defense. 3 Legal Consequences: • defendant is liable for the actual harm he causes to the property. o Example: plane malfunctions, land it on Pete’s cornfield, destroying corn. Pete sues the pilot for trespass to land. It was necessity-private-therefore pilot must pay for corn. • Defendant is NOT liable for nominal or punitive damages. • **As long as the emergency continues, the plaintiff must allow the defendant to remain on his land in a position of safety. o Cannot kick out or expel the defendant from your land in a snow storm. o RIGHT OF SANCTUARY, IN AN EMERGENCY. o One would be liable to eject someone from their property into harm’s way. DEFAMATION Common Law Defamation • 3 Elements o Defendant made a defamatory statement specifically identifying the Plaintiff o Publication o Damages, maybe o For constitutional (PUBLIC CONCERN)-two more elements Falsity fault • Defendant made a defamatory statement specifically identifying the Plaintiff o Purported statement of fact that could adversely affect one’s reputation o Defamatory statements= adversely affect reputation. o Mere insults are not defamatory. o Need an allegation of fact**** 9 o Requirement: Plaintiff MUST be LIVING. Cannot defame the dead. Once someone is dead, you can say whatever you want about them. If the statement is made at the time the plaintiff is alive, you can bring the action, even if he is dead when the action is filed. (estate sues). • Publication o Publication= disclosure of the communication to a third party. Disclosure to at least 1 person other than the plaintiff. o Communication solely to the injured person is not a publication, and hence, not defamation. o **This is not an intentional tort, can be satisfied by negligence. You don’t have to intentionally try to defame someone. • Damages, maybe o Not everyone has to prove damages. o Sub-Components LIBEL • Libel= defamation embodied in some kind of permanent format. (Written, taped, on a hard drive, new media). Has a permanence to it. Fixed in a tangible medium of expression. • For Libel, DAMAGES ARE PRESUMED. o Plaintiff does not have to put on evidence of damages. o Just because you don’t have to put on evidence of damages, doesn’t mean you shouldn’t put on evidence of damages. But the rule is it can get to the jury without it. SLANDER • Slander= spoken defamation • Can be said to your next door neighbor or on a grand scale. • SLANDER PER SE-particularly damaging. o With slander per se, Damages are presumed. o With slander per se, Damages are presumed. o Slander Per Se= 4 Specific Types of Oral Statements Statement about plaintiff’s business or profession Statement that Plaintiff is guilty of a serious crime. • Moral Turpitude-crime has some moral aspect to it. 10 Statement that plaintiff has a Loathsome Disease • Only 2 loathsome diseases-Leprosy; Venereal Disease (syphilis, gonorrhea) Statement that plaintiff (woman) is unchaste. • SLANDER NOT PER SE o Must prove damages o Example-accusing a man of being unchaste o Damages= economic injury. Must show person lost job, contract, revenues are down, etc…Not about emotional or psychological harm. If friends desert him, you cannot get to the jury. Affirmative Defenses to Defamation • Consent (same as above) o Express Consent o Implied Consent • Truth o Truth is a defense, no matter what you say, no matter what you write-as long as you can prove that it is accurate, you won’t have to pay. Defendant has the burden of proof. • Privilege o ABSOLUTE PRIVILEGE Based on the identity or status of the Defendant. 2 statuses evoked= bulletproof • communication between spouses. o If a husband says something or writes something defamatory to his spouse, he cannot be held liable for defamation. • Members for the branches of government engaged in their official duties. o Judicial branch-attorneys are members-things they say in court are privileged. o QUALIFIED PRIVILEGE Not based on who is speaking, rather when the speech takes place. Generally, a qualified privilege will arise when you want to encourage candor. • Examples o Letters of recommendation 11 If you wrote a letter of rec about a student and wrote things that are not true, if u made the mistake reasonably, you are privileged. If you are speaking or writing in a socially approved occasion, you will be protected for liability for any reasonable misstatements relevant to the subject at hand. (negligence standard) If you deliberately disseminate falsehoods, you are not privileged. Constitutional Defamation (Public Concern)*** (good for essay questions) • Plaintiff may only sue for Constitutional defamation if the matter is a matter of Public Concern. • 5 elements o Defendant made a defamatory statement specifically identifying the Plaintiff o Publication o Damages, maybe o Proof of Falsity o Fault on Defendant’s Part • Falsity o Plaintiff must demonstrate that the publication is false. This simply switches the burden on the plaintiff. • Fault on Defendant’s Part o Fault= defendant did not make a reasonable error, but rather is guilty of carelessness in disseminating the information. o If Plaintiff= Public Figure Plaintiff must show that Defendant made the statement either KNOWING IT WAS FALSE, or WITH RECKLESS DISREGARD AS TO ITS TRUTH Example: if President Bush sued Dan Rather, he would have to show that he acted with reckless disregard or knew his statements were false. o If Plaintiff= Private Figure Plaintiff need only show that the Defendant acted negligently. If defendant engaged in a reasonable investigation, then they did not act negligently. 12 PRIVACY (4) Appropriation • Also called right of publicity • Defendant uses the Plaintiff’s name or picture for a commercial advantage. • Example: Wheaties puts Tiger Woods picture on a cereal box without his permission. • News-worthiness exception-it is not a tort if the LA times puts a picture on the cover after he wins a golf tournament, or for a writer to put a picture of him on the cover, called Tiger Woods: the Untold Story. Intrusion Upon Seclusion • Invasion of Plaintiff’s seclusion in a way objectionable to the average person • Example: eavesdropping (electronically or ear against keyhole, secret cameras, monitoring) • Plaintiff MUST be in a place where there is an expectation of privacy • Does NOT require entry (no trespass required). o Example, if you are using a telescope to watch someone in an apartment across the way, you are guilty of intrusion. False Light • Widespread dissemination of a Major Misrepresentation about the plaintiff that would be objectionable to the average person. • Widespread Dissemination o Requires more than publication-must put the rumor about broadly • Misrepresenation o Can be, but need not be defamatory. o Saying Pete is embezzling $ from his company-that is false light and defamation o Mischaracterizing someone’s political or religious beliefs-that is false light but not defamation. that doesn’t hurt your reputation-but it is a false light. o Difference between False Light and Defamation • Defamation allows recovery for economic injuries. False light is a recovery for the intangible (emotional, mental). • NO INTENT IS REQUIRED. o If pete thinks P is catholic (even though he is jewish), it doesn’t matter Public Disclosure of Private Facts 13 • Widespread dissemination of confidential information about plaintiff objectionable to a reasonable person. • Examples o Financial information o Academic information o Medical information • Newsworthiness Exception: interpreted very broadly- who is a newsman and what is newsworthy is interpreted very broadly • Dual Light Fact Patterns o If a plaintiff operating in two public spheres, but tries to keep two spheres separately, it is not public disclosure to bring the information from one world to the other. o Example: Pete is gay, he is out on the social scene, but he is not out at work. If someone from his office sees him in his gay mode, and tells people at the office, then it is not a public disclosure of private facts. Not actionable. Affirmative Defenses to Privacy • Consent o Defense to all four privacy torts • Defamation privileges (Absolute and Qualified) o Defenses to False Light and Disclosure, ONLY!!!*** The Following are not big topics MISREPRESENTATION Intentional Misrepresentation/FRAUD Negligent Misrepresentation INDUCING A BREACH OF CONTRACT MALICIOUS PROSECUTION ABUSE OF PROCESS 14 NEGLIGENCE Essay: • Discuss ALL the elements, one at a time….even if you think one element is controversial. Talk about the elements in orders Negligence • Goal is to reduce the risks • Elements**** (Stick to these) o Duty o Breach o Causation (actual and proximate) o Damages • Duty o 2 subparts To Whom do you owe this duty? Standard of Care o To Whom do you owe this duty? = To foreseeable victims you don’t owe a duty to unforeseeable victims • unforeseeable victims always lose negligence claims on bar exams. Cardozo v. Andrews • Cardozo (majority view): foreseeable zone of danger o foreseeable victims are in the foreseeable zone of danger (immediate vicinity). • Andrews (minority view): o everyone is foreseeable o if you breach a duty to P1, you breached your duty to P2. EXCEPTION-where unforeseeable victims are owed a duty: • RESCUERS!!!** • In negligence, if there is a general rule, there is probably an exception. o Standard of Care Give the care of a hypothetical reasonably prudent person acting under similar circumstances. Basic Standard= Reasonable Prudent Person in Similar Circumstances • Prudent= careful, sensible, cautious 15 Objective standard.**** Same for everyone. Not customized. The standard of care never changes because it says IN SIMILAR CIRCUMSTANCES. • Amount of care fluctuates, but the standard of care does not. Compare the defendant to the reasonably prudent person in the similar situation • DO NOT TAKE INTO ACCOUNT THE DEFENDANT’S SHORTCOMINGS!!! • If the defendant is mentally retarded, they are held to the standard of the reasonable prudent person. (its objective-its not fair, but that’s life). 3 Circumstances where we change the standard • Superior Knowledge o Superior Knowledge= not a special skill, rather, it is just a superior knowledge about something, whatever it is that led to the injury. o Example-a NASCAR driver has knowledge of driving on wet pavement-we hold the driver to the standard of a reasonably prudent person who has that knowledge. o Example-dave has knowledge of the street and its bumps, we hold dave to that higher standard. • Physical Characteristics o If person is blind, or in a wheel chair, we hold them to the standard of a reasonably prudent person who is blind or who is in a wheelchair • Children o Standard of care of children is oh a reasonably prudent child of similar age, experience and intelligence acting in similar circumstances. o Very difficult for plaintiffs to win these cases. o References Intelligence (unlike that for adults). o For children, it is very particularized***** A stupid 6 year old who has never been on a tricycle before owes the duty of a stupid 6 year old who has never been on a tricycle. o EXCEPTION: If a child is engaged in an adult activity, then we hold the child to the objective standard of a reasonably prudent person in similar circumstances. (i.e. anything with an engine.) 16 • Professionals o Professionals= educated service providers o Doctors, lawyers, accountants, pilots, etc… o Professionals have their own Standard of Care. o Not objective (normal) or subjective (children) standard. Rather Empirical Standard (we look to the real world. o A professional owes the care of an average member of their profession practicing in a similar community. o Do what your professional peers do. o The custom of the profession sets the standard of care. o How do you prove? For the regular standard, the jury uses its common sense. But for a professional malpractice case-the Plaintiff needs an expert witness to establish the professional standard of care. o Similar Communities-we have different standards between small towns and big cities. • LAND OCCUPIERS************ (very popular) o Individual enters private property gets hurt while on the land. What standard of care does the occupier of land owe? o Must look at two things? How did the person get hurt?*** • Some will get hurt by Activities carried out on the land by the occupier. • Some will get hurt by a Dangerous Condition on the land. What is the entrant’s legal status on the land?*** Categorize the entrant! (4) • Undiscovered Trespasser o Undiscovered Trespasser DUTY FOR ACTIVITIES: occupiers owe undiscovered trespassers NO duty. Standard of care = 0 DUTY FOR CONDITION: occupiers owe undiscovered trespassers NO duty. Standard of care = 0 17 An undiscovered trespasser always loses a negligence lawsuit against a land occupier. o Discovered Trespasser/Anticipated Trespasser DUTY FOR ACTIVITIES: occupiers owe a standard of Reasonable Prudence under similar circumstances. (General Standard of Care). DUTY FOR CONDITION: occupier owe a duty to discovered trespassers if the condition meets a 4 part test. • 4 Part Test o Condition is Artificial in Nature (built by human beings)-never a duty to protect discovered trespassers from natural conditions on the land. o Conditions Must be Highly Dangerous (can kill or maim you). No duty to protect a trespasser from a condition that will give him a sprained ankle. o Condition must be Concealed from the discovered trespasser. They can’t see or appreciate the danger. No duty to protect for a condition that is open and obvious. o Condition must be one that the land occupier Knew of in Advance. Must have Advance Knowledge. There is no duty to go out and discover problems. • Compressed: Landowner must protect discovered trespassers from KNOWN MAN-MADE CONCEALED DEATHTRRAP ON THE LAND. Anticipated Trespasser-a trespasser u can expect. o Licensee Licensee enter the land not generally opened to the public, but are invited in. Licensee= Social Guests. 18 DUTY FOR ACTIVITIES: occupiers own licensee standard of Reasonable Prudence under similar circumstances (general standard). Example: pouring hot coffee for your guest DUTY FOR CONDITION: occupier owes a duty of care met by a 2 Part Test. • 2 Part Test o condition must be concealed from the licensee o condition must be known in advance to the occupier. Compressed: must protect the licensee from All Known Traps. o Invitees Invitees are those that enter land that is open to the public at large or at least a large group (such as Barbri-I am an invitee). DUTY FOR ACTIVITIES: occupiers own invitee a standard of Reasonable Prudence under similar circumstances (general standard). Example: go in lobby of an office building, the janitor must not trip you with his mop. DUTY FOR CONDITION: occupier owes a duty of care met by a 2 Part Test. • 2 Part Test o Condition must be concealed from the invitee. o Condition must be one that the occupier knew in advance OR could have discovered with Reasonable Inspection. o Now we are charging the occupier with a duty to get up and look around. • Compressed: Occupier must protect the invitee from all reasonably knowable traps. o 3 footnotes: Firefighters and Police Officers 19 • Normally considered Licensees. A firefighter and a police officer never recovers for an injury that is an inherent risk of the job. *** Firefighter can’t sue for being burned by fire started by D’s negligence. Child Trespassers • Children. • Entitled to reasonable prudence under the circumstances. • Reasonableness-whether you should have expected the child to come on to the land, even if they are trespassers. • Is there something on the land that acts as a magnet to kids? Is it a cool place to play? Then you owe a duty. Can’t claim Undiscovered Trespassers. • Attractive Nuisance Doctrine-u must be reasonably prudent to make the land safe. • Child does not need to be injured by the thing that attracts him to the land. WARNINGS • 2 ways to satisfy your duty-either fix the problem or give a warning. • fix the problem • A warnings converts a concealed hazard to a known hazard. o Statutory Standard of Care/Negligence Per Se Statute on the books that appears to regulate the conduct of the defendant. But the statute does not state one’s tort liability. Example: motorist goes through a red light; there is a statute that says you cannot go through red light. Plaintiff borrows the statute and use that as a standard of duty for this case only. Says violate the statute proves breach. Wants to treat it as negligence per se. Negligence Per Se: 2 Part Test-class of person class of risk test. • Plaintiff is a member of a class of persons that the statute seeks to protect.*** • Accident is within the class of risks that the statute seeks to prevent.*** 20 2 Exceptions to Negligence Per Se • If Statutory Compliance would be more dangerous than statutory violation, don’t borrow the statute. o D is driving in a rural road and there is a double yellow center line, to avoid hitting the child, D swerves, causing P to drive off the road. P wants to use the statute that says you can’t cross a double yellow line. Here we don’t borrow the statute, we use general reasonable prudence. • If Compliance is Impossible under the statute o D is driving and has a heart attack, running through a red light, hitting P. P wants to borrow the stop-at-areedlight statute. But compliance was impossible because D was incapacitated. (then what would you say? Did D have chest pains beforehand? Would a reasonable person have pulled over? Was D supposed to be taking heart medication and didn’t take it?) Examples • P falls down an elevator shaft. There is a statute that says that anyone working on an elevator must put a barrier or yellow tape. If they don’t, there is a $200 fine. P doesn’t care about the fine, but wants to use the statute to prove duty and breach. The duty is to put a barrier or tape-and not doing so is a breach of that duty. Failure to do so is NEGLIGENCE PER SE. • Woman smoking pot blows up her apartment. P, the next door neighbor, wants to use the misdemeanor statute as negligence per se. But, this fails the two part test, because the illegality of marijuana statutes aren’t meant to protect the plaintiff (maybe), but the accident of blowing up your apartment isn’t the type of risk the statute seeks to prevent. So P must use the general standard of care approach, rather than negligence per se. o Affirmative Duties to Act There are NO affirmative duties to act. There is NO duty to rescue a person in peril. Bar examiners will try to distract you-by making the D so mean spirited, so contemptable-that you think-“they gotta act”-don’t fall for that trick. Exceptions 21 • If the D is the cause of the peril, D has a duty to rescue. • If there is a pre-existing relationship between the parties. o Sample list (not a complete list) Family relationship (see you sister drowning, gotta rescue) not limited to blood rescuers. Common Carrier/Innkeeper. Have a duty to rescue their patrons. Land occupier has a duty to rescue an invitee. • If any of these exceptions apply, it is only a duty to rescue Reasonably. You NEVER have to put your life at risk. Do what is reasonable under the circumstances. If you have no duty, but you act nonetheless, and you screw up, you will be liable. If you drive, then you have to drive reasonably. If you try to rescue, you have to act reasonably. • If someone is choking and you go to give him the Heimlich, and you bust his kidney, you are liable. • If you screw up the rescue, you are going to be liable. o Negligent Infliction of Emotional Distress You have an obligation to take precautions to avoid physically hurting people; but you also have an obligation to avoid freaking people out. Requirements • ***A person who is being sued for NIED, must have committed a breach of ANOTHER DUTY. (such as a breach of a rescuer or a landowner) • Even though a plaintiff has not sustained a physical injury, plaintiff must have been in zone of physical danger. (Near Miss or Close Call). • Plaintiff must show Subsequent Physical Manifestations of the Distress. o Subsequent Physical Manifestations I.e. heart attack; miscarriage; skin inflammation; We want to prevent fraud. So you ask yourself if there is enough there to avoid fraud. Nightmares, as a result, are a self-reported physical phenomenon, and that won’t satisfy anyone that you are not committing a fraud. 2nd Way to Recover-Bystander 22 • Distressed Plaintiff witnesses a negligent injury to a close family member. • The emotion is sorrow at seeing a loved one get hurt. • You are suing for a different emotion. • Recognized in ½ the states. • Close family member; Contemporaneous witnessesing of negligence -changes from state to state-so it is not covered on the bar. • Breach o Breach of Duty is where the Plaintiff is obligated to get specific, and identify exactly what it is the defendant did wrong. o Most important in cases litigated under the reasonably prudent person standard. o Must explain why the conduct falls short of reasonableness. o On the bar, this is what you do for Breach: Here, Plaintiff will allege that the defendant did not act reasonably because he insert facts. This is not reasonable because….(give reasons). o Some plaintiffs lack the information to show a Breach; so in certain cases they are excused from presenting evidence of a breach. Res Ipsa Loquitur-the thing speaks for itself • Used by parties that are unable to tell us exactly what the defendant did wrong. • 2 PRONGS o accident that occurs does not normally occur in the absence of negligence. Normally= about probabilities. Typically, Normally. Example-barrels don’t come tumbling out of windows (and hit P’s in the head) normally.. o This type of action normally happens because of the negligence of someone in Defendant’s position. Show that you are suing the right person. • When you establish these two elements, you have satisfied a res ipsa case-you can get to the jury-can AVOID A DIRECTED VERDICT. • Example: o P bite into his chewing tobacco and found a toe. We don’t know exactly what D tobacco company did 23 wrong, but we know that normally the tobacco company doesn’t find toes in the chew. The Thing Speaks For Itself • Causation o Actual Causation/Factual Causation Plaintiff is required to demonstrate a cause and effect connection between the breach and the damages. Actual causation picks up where the breach left off. BUT FOR TEST • Can P convince that But For the breach, the accident would not have occurred. • Defendant can say Even If I didn’t act negligently, you still would have gotten hurt. (simply another way to do the test). 1 problem-Multiple Defendants • Special rules for Multiple Defendant cases • 2 Scenarios o Mingled Causation use SUBSTANTIAL FACTOR TEST • Did each of the co-defendants contribute to the damage in a significant and substantial way. • Were they a substantial factor in the injury? A and B, both by coincidence go camping, they do not know each other and they are 5 miles away. A negligently forgets to put out his campfire. B negligently forgets to put out his campfire. Fire starts, burns down P’s house. P sues A and B. A can claim he is not the but for cause, cuz B’s fire was sufficient to burn down the house. B can say the same thing. The But For Test would exonerate both Defendants. So we use the Substantial Factor Test. o Unascertainable Causation Only one cause, but we can’t figure out who did it. SHIFT THE BURDEN TO THE DEFENDANT TO SHOW THAT THEY ARE NOT THE ONE WHO DID IT. 24 Three hunters, A, B, C. A and B shoot their rifles at the same time, in the same direction. One of the bullets strikes C. We don’t know which gun the bullet came from. Court will shift the burden to A and B to show that they are not the one’s who shot the gun.. o Proximate Causation (aka legal causation) Proximate Cause is a way of determining if liability is fair. Liability is fair if the consequences are foreseeable. Liability is unfair if the consequences are unfair. • D runs light, kills P. P is a brilliant scientist at the forefront of cancer research, who is a month away from a cure for liver cancer. His death pushes it back 10 years. Is D liable to the 1000 people that die in the next 10 years? Even if they are foreseeable plaintiffs? Are the consequences foreseeable? aka FAIRNESS The plaintiff has to prove that Liability is Fair under the circumstances. Issue: how do you measure fairness? • Foreseeability!!!!!!!!! • It is Fair to make people pay for the foreseeable Consequences of their conduct. • It is Unfair to make people pay for the unforeseeable consequences of their conduct. Direct Cause Fact Pattern • D causes breach-injury is instantaneous. • In a direct cause case, you should only deny liability and give a proximate cause analysis if the fact pattern is ridiculous Indirect Cause Fact Pattern • Defendant commits breach, then stuff happens-only then does the Plaintiff cause the injury. • 4 Specific Scenarios/Fact Patterns-there are well settled answers. In all four, we hold the defendant liable. If u see them on the bar, do not do an analysis. MEMORIZED RULE. o Intervening Medical Treatment P is injured by D’s negligence, Negligent doctor puts a cast on that was too tight. Leg has to be amputated as a result. Is the driver liable for the 25 injured leg or the amputated leg. Answer: driver is liable for the amputated leg. When you injure someone and thrust them into the medical system, it is foreseeable that doctors may make them worse off. Doctor is liable too. o Intervening Negligent Rescue P is injured when D runs red light. Resucer drags him to the curb, P is injured more. D is liable for the additional injuries. When you injure someone it is foreseeable that a rescuer will rush to help, and it is foreseeable that P could be more hurt as a result. o Intervening Protection or Reaction Forces. In reaction to the negligence, people try to get out of the way-create a stampede….P is injured more. This is foreseeable as well. o Subsequent Disease or Accident P is injured by D. P gets crutches. P falls on his crutches and breaks his arm. D is liable for the broken arm. • If they do not fall under this list of 4-do a case by case analysis. o Look at the wrongful conduct and ask yourself-Why am I calling this negligent in the first place. Is the ultimate outcome in the story what you were worried about? If yes; then it is foreseeable. o 2 individuals are eating. A eats shrimp-which isn’t refrigerated, A goes to the bathroom to throw up. B goes to check on A, slips in the vomit and breaks her arm. Can B sue the restaurant? Is it foreseeable that serving bad shrimp will lead to someone breaking their arm? NO. • Damages o Egg Shell Skull Plaintiff you take your plaintiff as you find your plaintiff. Defendant is liable to all damages suffered by the plaintiff, even if those damages are surprisingly great. This rule applies to Every Tort-not just Negligence. 26 Affirmative Defenses to Negligence • Traditional Contributory Negligence o Bar examiners are testing less and less on this • Assumption of the Risk o Bar examiners are testing less and less on this • Comparative Negligence o Defendant offers evidence of Plaintiff’s fault o Comparative Fault= failure of the plaintiff to take reasonable precautions, or a statutory command for his own safety. o The same standards that apply to protection of other people apply to your own safety. o Jury is required to weigh the faults and apply a numerical %. Then the Plaintiff’s recovery will be reduced in accordance with that jury assigned %. o D, drunk, hits P, who is jaywalking. P establishes $200,000 in judgment. Jury determines that P was 30% responsible and that D was 70% responsible. P will recover 70% of his damages= $140,000. o Variants on Comparative Negligence Pure Comparative Negligence • Default Rule. • We go strictly by the numbers. Partial/Modified Comparative Negligence • Plaintiff fault of less than 50% will reduce the recovery • Plaintiff fault of more than 50% will bar any recovery!! o In counterclaims and such, look at the numbers separately**. Offset them against each other. STRICT LIABILITY • Strict Liability= Your standard of care no longer matters. • SAFETY PRECAUTIONS ARE IGNORED!!!!! (bar will try to trick you-don’t fall for it.) Strict Liability for Animals • Domesticated Animals o There is no strict liability for injuries caused by domestic animals. o EXCEPTION; if you know that your animal has vicious propensities, and you keep that animal as a pet, you will be strictly liable. Vicious Propensity= previously bitten someone. 27 The first time your dog bites someone, you are clear of strict liability (but you can be held liable for negligence). But if it does it again, you are on notice. Bite 1= negligence Bite 2 and beyond-strict liability • Trespassing Cattle o You are strictly liable for your cattle that wanders on someone’s land and causes damages. • Wild Animals o If you keep or harbor a wild animal you are ALWAYS strictly liable Strict Liability for Ultrahazardous and Abnormally Dangerous Activities • Ultrahazardous Activities o Activities that cannot be made safe o Pose a risk of severe harm. If something goes wrong, it’ll be a catastrophe o Activity is uncommon in the area. Example: crop-dusting-it is not Ultrahazardous in a random farm. It is Ultrahazardous in a residential o Examples-if you see these, you know it is an Ultrahazardous activity Explosives or Blasting Involving highly dangerous chemical or biological material Involving radiation or nuclear energy. Strict Liability for Injuries Caused by Consumer Products • Products Liability= When someone is hurt by a consumer product, those victims will have a variety of theories to choose from. They are all called products liability. Whether its negligence, misrepresentation, battery, warranty claims, or strict liability. • For strict liability, focus is on the product. • Strict Liability for Products o 4 Elements Defendant must be a MERCHANT. • Merchant= someone who ordinarily deals in goods of this type. • Casual Sellers are not merchants and therefore cannot be strictly liable. (i.e. sell on eBay, etc.) • Service Providers are not merchants of goods incidental to the service.**** 28 • Commercial Lessors o Commercial lessors=Merchants. They are strictly liable. o Example: rental car company. Hertz. • Defendant does not have to be the merchant with whom plaintiff dealt directly. o There is NOT privity requirement Product is Defective***** • Two Types o Manufacturing Defect Product differs from all others that came off the assembly line in a way that would make it more dangerous than a consumer would expect. Aberration. 1 in a million case. Remember: PRECAUTIONS DO NOT MATTER. If a bad one slips through, you are responsible o Design Defect Alternative way to build the product. Plaintiff offers a hypothetical alternative design (HAD).*** Plaintiff must show: • HAD would have been safer than version marketed • HAD is economical (not much more expensive then the alternative on the market; aka cost effective) • HAD must be practical. It can’t make the product unable to perform its desired effect. If you show these design defects, anyone who gets hurt has a strict liability claim as a result. Example…baby gets head stuck in slats in a crib because the space between the bars is too big. This would be easy to show a design defect, because it satisfies the three HADs. Warning and Instructions, Information ARE considered part of product design. 29 • There may be no physical way to redesign the product; and the product has residual risk-but you can claim that not putting a warning on (which is cost effective, practical, and safer) is a DESIGN DEFECT. • Inadequate warnings= defective design= strict product liability*** o This could include putting a picture rather than just words. Etc. Defect Existed At the Time the Product Left the Defendant’s Hands. • This element is essentially a non-issue in the design defect. • This can be an issue in a manufacturing issue case. o The condition of a product can deteriorate over time. o IF THE PRODUCT TRAVELS IN THE ORDINARY CHANNELS OF DISTRIBUTION, THERE IS A PRESUMPTION THAT THIS ELEMENT IS SATISFIED. THE DEFENDANT HAS THE BURDEN TO SHOW THAT THE PRODUCT CHANGED. This presumption is not available if the product is second hand. Plaintiff must show that he was making a foreseeable use of the product at the time of the injury. • Foreseeable Use is not limited to the intended use. Many misuses are foreseeable. • Example: guy stands on a chair to get a book. He didn’t use the chair in the intended way. The issue is whether it is foreseeable that someone would stand on a chair. It is, so they have satisfied this element. Defenses to Strict Liability • Majority= Use Comparative Fault. o Same as comparative negligence • P can have a damage reduction based on a jury %. 30 NUISANCE Nuisance • Nuisance is not a separate tort. • Nuisance is a category of harm that involves an unreasonable with a plaintiff’s ability to use and enjoy his land. • Nearby property owners not getting along-inconsistent land use. • If the defendant’s conduct unreasonably interferes with the plaintiff’s enjoyment or use of his land, he will be liable. • This includes whether D does it on purpose, negligently, • BALANCING TEST o We want t balance the equities. MISCELLANEOUS TOPICS Vicarious Liability • Imposition of tort liability of one person on the acts of another. • Based on the Relationship between Passive Party and Tortfeasor (4) o Employer-Employee (respondeat superior) Employer is liable for torts of employee that is committed within scope of employment. Detour v. Frolic • Detour-does not break the imputation of liability • Frolic-breaks it. • difference-look at the facts Intentional Torts ARE NOT within the scope of the employment • EXCEPTION: If there is any reason to believe that this falls within the nature of the job, then the intentional tort IS within the scope of the employment. o Bouncers Forced is required on the job. o Repo-Man Job creates hostility- Unwarranted Detention of a Shoplifter Further the interest of the business. o Hiring Party-Independent Contractor Hiring party is not liable for the torts of its independent contractor EXCEPTION: a land occupier will be vicarious liable for the torts of an independent contractor that injures Invitees. 31 • Storeowner hires painters to paint his store, paint can falls off ladder and hits shopper in the head. Storeowner is vicarious liable. o Automobile Owner-Automobile Driver General Rule: No vicarious Liability EXCEPTION: if you lend the car so the person is doing an errand for you, they become your agent and they are vicarious liable. Take my car to pick up a pizza for me. o Parents-Children Parents are NOT vicarious liable for the torts of their kids. That only applies if the parent is a passive party. (if a parent leaves a gun out that his child can get, the parent is liable-the issue isn’t vicarious liability-its negligence on the parent’s part). • Do not make vicarious liability analysis too quickly. Contribution. • Comparative Contribution o Jury assigns the numbers. If 1 defendant pays it, he is entitled to contribution for the amount he is not responsible for from the other defendants. o Multiple defendants-Plaintiff collected all the money from D1. D1 wants D2 and D3 to chip in. D1 is entitled to comparative contribution. o EXCEPTIONS: Full Reimbursement (Indemnity) (1) Passive Party who has been held vicariously liable is entitled to full indemnification (2) Non-manufacturer can get indemnification in a product case. Loss of Consortium • In any case where the victim of the tort is a married person, that person’s uninjured spouse is given their own right of action. • 3 causes of action by uninjured spouse o Loss of services o Loss of society with my spouse injured, confined to bed, I have no one to interact with, to talk to, etc… o Loss of Sex 32